ARK.] 1059
GEnRaE LEE TATUM V. K. W. RESTER
5-4106 412 S. W. 2d 293
Opinion delivered February 20, 1967
[Rehearing denied March 27, 1967]
[Supplemental opinion on rehearing delivered March 27, 1967
242 Ark. 271, 412 S: IC 2d 293]
1. NEGLIGEN CE—TRIAL, JUDGMENT & REVIEW—IN STRUCTION
STANDARD OF CARE.—In action for damages for injury allegedly
caused by appellee's negligence, in view of the record the giving
of an instruction which defined the standard of care regarding
the condition of appellee's premises was error.
2. JURY—VOIR DIRE EXAM INATION—DISCRETION OF TRIAL COURT, ABUSE
ff.—Court did not abuse its discretion in refusing to permit
appellant on voir dire examination of the jury to propound
certain questions, although the questions were not per se ob-
jectionable if asked in good faith subject to : reasonable control
by trial court.
Appeal from Union Circuit Court, Melvin Maefield,
Judge ; reversed.
Bernard Whetstone, for appellant.
Shaekleford & Shaeklefor, for appellee.
PATTI, WARD, Justice. This is a pers.onal injury suit.
While George Lee Tatum, a five year old boy (here-
after referred to as appellant), was playing with the
children of K. W. R2ster (appellee) at Rester's home he
was injured when appellee was attempting to back his
car out of the carport.
Suit was filed by George's father (who, having died
later, was replaced by a guardian—Robert E. Rorex)
against appellee to recover damages for the injury al-
legedly caused by the negligence of appellee. A jury trial
resulted in a verdict for appellee.
For a reversal appellant relies on two points which
we will discuss in reverse order from that presented in
his brief.
One. This point relates to certain instructions giv-
en and refused by the trial court, but first it is necessary
to set out a summary of the pertinent facts which are
not in dirpnte
1060 TATura V. RESTER 041
Appellant lives with his family who are close
neighbors of appellee who has a wife and small children.
The children of the two families frequently play togeth-
er in their yards. On the day of the accident appellant
was playing with appellee's children in his yard. It is
not contended that he was invited over on this particular
occasion nor is it contended he was a trespasser. Ap-
parently it is agreed that appellant was a licensee or an
invitee.
On that occasion appellee was washing his car in the
carport, aware of the presence of the, children in his
yard and that they were nearby. When appellee decided
he would back his car clear of the carport to finish the
job he told the children of his intention and also told
them to keep out of the waT Appellee then proceeded to
back the ear, holding the left front door open with his
hand. In doing so the edge of the open door struck ap-
pellant's hand while it was resting on the post which
supported the rear corner of the carport.
At the close of the testimony appellant requested
the court to give the following instruction:
"You are instructed that under the circumstances
that existed in the present case that K. W. Rester
owed the duty to George Lee Tatum to use ordinary
care not to cause injury to George Lee Tatunr"
The trial court refused the above instruction ovei the
objection of appellant, and then gave to the jury the
following instruction over appellant's objection,
"You are also instructed that at the time of the cc-
curence here involved the Defendant, K. W. Rester,
did not have a duty to use ordinary care for the
safety of the Plaintiff, George Lee Tatum, unless he
knew or reasonably should have known that George
Lee Tatum was in a position of danger."
"And, of course, if the Defendant did know or rea-
ARR.] TATUM 1'. RESTER 1061
sonably should have known that George Lee Tatum
was in a position of danger at the time of the oc-
curence, then the Defendant had a duty to use ordi-
nary care to avoid injury to him."
It is our conclusion the court erred both in refusing
and giving the above instructions. This conclusion is
supported by the case of Liny wiler v. El Dorado Sports
Center, Inc., 233 Ark. 191, 343 S. W. 2d 411.
In the above cited ease this same issue was raised
under similar circumstances. Appellant (a boy eighteen
years old) stopped in a bowling alley and chatted with
a , nineteen year old employee of the alley. They em-
ployee picked up a pistol which a policeman had checked
at the counter and accidentally shot and injured the ap-
pellant. The trial court, in that ease, instructed the jury
as follows:
" 'The owner of a premises or place of business is
under no duty to protect one who goes upon the
: premises or in the place of business as a volUnteer
for his own pleasure, privacy, or curiosity.' "
On appeal to this Court we reversed the judgment
in favor of appellee, stating, among other things:
"This instruction should not have been given, for
it embodies a rule of limited liability that is proper-
ly applicable to a landowner's responsibility for the
condition of his premises rather than to his liabil-
ity for the conduct of his employees."
Following the above statement we said:
"The condition of the appellee's bowling center had
nothing to do with Billy Linxwiler's injury. Lavelle
Parker was well aware of Billy's presence. In this
situation Parker and his employer owed Billy the
standard duty of ordinary care, regardless of his
indecision about whether to howl or riot."
1062 TATum V. HESTER 1.241
We can see no distinction, in principle, between the
cited ease and the ease under consideration here. It is
possible that the trial court could have been misled by
the similarity between AMI instruction 1106 and the one
which it gave in this case. However it is apparent that
AMI 1106 refers to the duty of a person to keep his
premises in a safe condition, which is not the situation
in this case
Two. It is also urged by appellant that the trial
court "erred in his handling of the voir dire of the jury
panel". However, since the ease must be reversed on the
first point and since we find no reversible error here,
we deem it unnecessary to discuss this point in detail.
It appears that appellant attempted to ask each of
the jurors two questions. One, in effect, was whether
he would disregard the -apparent ability or in-ability of
the defendant to pay any judgment rendered against
him. The other was, in effect, if he owned any stock in
or worked for any casualty or liability insurance com-
pany. The trial court, upon objection, refused to allow
appellant to ask these questions at that time and in the
exact way they were presented
For reasons set out below we find that the trial
Court committed no reversible error.
In the case of Hogg v. Darden, 237 Ark. 478, 374
S. W. 2d 184, we said:
"It has long been recognized in this State that
'litigants in civil cases, as well as in criminal cases,
have the right to examine the jurors separately in
order to determine whether such jurors are subject
to challenge for cause, or to elicit information on
which to base the right of peremptory challenge,
subject of course to the right of the Court to can-
trol the extent of sueh examination, acting in its
sownd discretion.' " (Emphasis ours.)
ARK.] TATUM V. RESTER 1063
The court did not, we think, abuse its discretion under
the circumstances disclosed by the. record.
The court, on two occasions, told appellant he could
inquire of the jury as to the content of the questions
mentioned above. The court also explained that it would.
take up too much time to ask the questions of each juror
separately—as requested by appellant. Moreover, the'
court asked each juror as to his or her occupation, and
excused two because of their connection, in some way,
with insurance companies. The court also questioned the
panel at length regarding their duty to render a fair and
impartial verdict under the law and the evidence. There-
after appellant declined to ask any more questions. This,
we said in the Hogg case, supra, "constitutes a waiver".
By this opinion we do not mean to hold that the
questions appellant desired to ask the jury are, per se,
inadmissible if asked in good faith subject to reasonable
control by the trial court.
Reversed.
GEORGE ROSE SMITH and BROWN, JJ., concur.
LYLE BROWN. Justice, concurring. I agree this case
should be reversed because of error in instructions. How-
ever, I believp the opinion fails to give proper consid-
eration to some important points which were raised
and which are most likely to occur in the event of an-
other trial.
This cause first was called for trial on February
14, 1966. On behalf of Tatum (plaintiff), his attorney
asked this question on voir dire examination:
"Bernard Whetstone—My question is, gentlemen
of the jury, do you or any member of your family
now, or have you in the past, worked for or own any
stock in or have any interest in any casualty or lia-
bility insnrance company?"
1064 TATTJM v. HESTER. I:241
Counsel for Rester (defendant) immediately asked
for a mistrial and the court promptly granted the mo-
tion.
Although a prior question asked is not in the rec-
ord, it is apparent from the statements made by the pre-
siding judge that the question regarding insurance was
immediately preceded by another question In substance,
the first question inquired of the panel whether the ap-
parent ability or inability of the defendant to pay a
judgment would affect the findings of the jury.
After granting the mistiial, the court expressed the
view that the propounding of these twu questions "back
to back" were meant to impress upon the july the fact
that the defendant probably had insurance. This reason-
ing seemed to impel the trial court to grant the mistrial.
The second trial began May 25, - 1966. - On voir dire
examination Mr. Whetstone inquired of juror Smither-
man, in substance, if he could disregard the apparent
ability or inability of a defendant to pay a judgment.
Shackleford objected and the question was un-
answered. The court overruled the objection and pro-
ceeded to take over the questioning of the panel. After
numerous questions were asked by the court, Mr. Whet-
stone requested a conference at the Bench After some
discussion, the judge and attorneys retired to Chambers.
The judge addressed this question to Mn Whetstone :
"As I understood your motion, you wanted to ask
each one of the jurors individually the question
whether or not they would try this case and render
a judgment for the plaintiff if they feel the law and
evidence justified it, without considering his appar-
ent ability or inability to pay the judgment. Now is
that the question you wanted to ask?" (To which Mr.
Whetstone replied in the affirmative.)
The court denied the motion and gave three reasons
therefor ; the reasons are summarized in italics, and the
balance constitutes my comments :
ARK.] TATUM v. RESTER 1065
1. To propound the same question indicidually to
23 jurors would be too much of a burden, on the jury and
the court and is unnecessary. The court was certainly
acting within the bounds of discretion in so ruling
2. The question is improper because the ability or
inability to pay a ;judgment cannot be involved in a case.
It is not a proper thing for the jury to take into consid-
eration. Ability or inability to pay cannot be introduced
into evidence. On this point I believe the court is in er-
ror, assuming it to have been ruled that the question is
never proper under any circumstances. It is human na-
ture for most people to sympathize with the poor, the
unfortunate, or the undP.rprivileged. Direet testimony is
not necessary for jurors to reach a conclusion or impres-
sion that a party to a case has ability or inability to pay.
A question of the same content is in fact not infrequent-
ly propounded by counsel for a large corporation when
it is being sued by a widow or on behalf of minor chil-
dren whose parent has suffered death in au accident.
To admit the propriety of this question, when asked
in good faith, knowing it is a caus p wherein the jury
will uridouhtedly reach defiuite imprcssiong about the
ability or inability to pay, still does not remove from
the trial court all its discretion. Acting in sound discre-
tion, the court is privileged to conclude that the question
is not proper in a particular case.
3. The purpose of this question is to indicate to
the jury that liability insurance is involved, "that this
man (defendant) does not have the ability to pay but he
hos plenty of iwsurance.'' Herein lies the danger of
coupling the two questions. And in this situation the
court's discretion comes into play. The court passes on
the question of good faith, knows the attorneys, their
mannerisms in asking the questions, the word emphases
they may use—all of which are important in discerning
good faith. The appellate court does not have this ad-
vantage. So, unless from the record itself we ean glean
.1066 TATUM V. _RESTER [211
an abuse of discretion, we should not say the trial court
,erred in this respect.
Lawyers have the right to question jurors, separ-
ately and individually, to determine whether they are
subject to challenge for cause, or to elicit information
on which to base the right of peremptory challenge. But
all this is subject to the right of the court, acting in
sound discretion, to control the extent of the examina-
tion. Then, too, the court would seem to have the respon-
sibility of moving forward on questions concerning stat-
utory qualifications. See Ark. Stat. Ann. 39-226
(Repl. 1962).
The ease and statutory law relative to voir dire
examination are not complicated when compared to oth-
er fields of trial procedure. When a problem in fact is
'anticipated it can undoubtedly be settled by raising it in
pre-trial conference. In those rare instances where it
might not be settled in pre-trial, the record can there
be made and the time and patience of jurors are not
jeopardized.
GEORGE ROSE SMITH, J., joins in this concurrence.