dissenting. I dissent from the decision in this case because, in my judgment, the majority have exercised the wrong standard of review and have usurped the trial judge’s discretion in order to express their own.
The majority concede that the trial judge seated an “alternate” juror without following the procedure required by Rule 47(b) of the Arkansas Rules of Civil Procedure, but say there is no showing by the appellees that the irregularity materially affected their “substantial” rights. To support their holding, the case of Falcon Zinc Co. v. Flippin, 171 Ark. 1151, 287 S.W. 394 (1926), is cited.
In the first place, Flippin is not even concerned with the issue involved in the instant case. Here, the procedural irregularity involved is the seating of an “alternate” juror after twelve regular jurors had been chosen. ARCP Rule 47(b) provides that alternate jurors may be called to replace regular jurors who are unable to perform their duties, but the rule provides that when a person is impaneled as an alternate juror each side is entitled to an additional peremptory challenge. When the trial judge excused the regular juror, he asked if the parties would agree that the thirteenth juror on the regular list could be seated. Neither party agreed to that procedure and the judge stated for the record that he was seating this juror over the objection of both parties. Not only that, but both parties asked for a mistrial at that time.
In the second place, in the Flippin case there was a direct appeal on the question of whether the jury selection procedure in that case constituted a reversible error. In such a case it is clear that the appellant has the burden to show that an error occurred which prejudiced his right to a fair trial. Here, the appeal is from the granting of a new trial, the issue is whether the trial court abused its discretion in granting the new trial, and the burden is on the appellant to show that the trial judge abused his discretion. In Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304 (1981), the Arkansas Supreme Court said:
The trial court is vested with a wide latitude of discretion in acting on a motion for a mistrial or a new trial and will not be reversed on appeal absent a manifest abuse of discretion. General Motors Corp. et al v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974); and Dickerson Construction Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). The showing that a trial judge has abused his discretion must be stronger when a new trial has been granted than when it has been denied, as the beneficiary of the verdict set aside has less basis for a claim of prejudice than does the unsuccessful movant for a new trial. Security Insurance v. Owen, 255 Ark. 526, 501 S.W.2d 229 (1973).
272 Ark. at 152. The court concluded as follows:
In the granting or denying of a motion for mistrial, we give due consideration to the fact the trial judge, having personally observed the entire proceedings, is in a better position than we to evaluate the merits of the motion. When we consider all the circumstances during the trial proceedings, we cannot say that appellant has sufficiently met his burden of demonstrating the trial judge manifestly abused the wide latitude of discretion allowed him by setting aside the jury’s verdict.
272 Ark. at 155.
Thus, the issue in the case at bar is not, as stated by the majority, whether the appellees have shown that they were prejudiced by the trial court’s action. The issue here is whether the appellant has “sufficiently met his burden of demonstrating the trial judge manifestly abused the wide latitude of discretion allowed him by setting aside the jury’s verdict.”
The appellees filed a motion and brief for new trial in this case stating that because no alternate juror was properly selected the trial judge’s action in seating the thirteenth juror on the regular list forced them to go to trial without the right of exercising an additional peremptory challenge on the juror which the trial court treated as an alternate juror. The record shows that the verdict was agreed to by only nine jurors and one of them was this thirteenth “alternate” juror selected contrary to the provisions of ARCP Rule 47(b) and in a manner that deprived appellees of the right to use an additional peremptory against him.
The trial judge granted the motion for new trial and his order states “the Court finds that, based on the record and the pleadings herein, that error was created and occurred at trial necessitating new trial.” Although the appellant suggests that the verdict for appellees in the amount of $22,000.00 was sufficient and they should be satisfied, the appellees and the trial judge have a different view. I would affirm the trial judge for the reasons stated by the Arkansas Supreme Court in Garner v. Finch, supra.
Cooper, J., joins in this dissent.