(Dissenting). I agree with the majority in its holding that the judgment should be reversed in the case of Rock v. Flowers, on the ground that Rock insisted on bringing the insurance matter into the case. But I respectfully dissent from so much of the majority holding as reverses the judgment obtained by Tindall against Flowers. This dissent is for several reasons : Tindall did not commit the error that brought the insurance angle in the case; the Court told the jury not to consider the insurance matter in the Tindall case; and we have repeatedly held that cautionary instructions will cure prejudicial statements regarding the matter of insurance.
The majority opinion says, as regards the insurance angle:
"Tindall’s attorney, in obedience to the court’s rul- • ing, pursued the matter no further.
"Rock’s attorney, however, continued to press the point and insisted that the entire statement should be put in evidence. The court finally permitted this to be done, instructing the jury that the sentence in controversy had nothing to do with the case of Tindall v. Flowers but that it might be considered in the Rocks’ case as a'matter bearing on the adjustor’s credibility.”
It will be observed that Tindall’s attorney did not. bring the insurance angle in the case; and when Rock’s attorney insisted on developing the insurance matter, the Court ruled:
“By the Court: The statement has been offered by the defendant, Mrs. Flowers, and the other defendant and seeks to withhold part of the same as a complete statement of the witness, Mrs. Tindall, and the Court is holding that it has nothing in the world to do with the case of Tindall v. Flowers, . . .”
Then the Court instructed the jury:
"By the Court: Gentlemen of the jury, the question and answer that is now about to be propounded to the witness will be completely disregarded by you as any evidence between the plaintiff, Tindall, and the defendants, Flowers and Mr. Derrick. You may only consider them for the purpose of discrediting or impeaching this witness in the case of Rock v. Mrs. Flowers and so forth. You can and will do that!”
Thus, the Court specifically told the jury that anything about the insurance was not to be considered in the case of Tindall v. Flowers; and the limiting by the trial court, of the effect of the evidence in a consolidated case,1 has heretofore been upheld. In Murray v. Jackson, 180 Ark. 1144, 24 S. W. 2d 960, there was evidence admissible in favor of one party and inadmissible in favor of the other; and the Court limited the effect of the evidence. A husband (Mr. Mitchell) sued a defendant for damages to a car, and an occupant (Mrs. Jackson) sued the same defendant for her personal injuries. The wife (Mrs. Mitchell) testified as to Mrs. Jackson’s injuries. It was claimed that Mrs. Mitchell’s testimony, being inadmissible in the suit brought by Mr. Mitchell, should not be allowed to support Mrs. Jackson’s case. The trial court told the jury that Mrs. Mitchell’s testimony “could only be considered by it as to the claim of Mrs. Jackson, and could not be considered as to the claim of” Mr. Mitchell. We held that the limiting by the trial judge of the effect of the evidence took Mrs. Mitchell’s testimony away from Mr. Mitchell’s case, and saved Mrs. Jackson’s case from error. I submit that the language of the trial judge in the case at bar took the incompetent testimony away from Mr. Tindall’s case and saved it from error.
Furthermore, we have repeatedly held that any error in bringing the insurance angle into a case can be cured by cautionary instructions of the Court. In Neely v. Goldberg, 195 Ark. 790, 114 S. W. 2d 455, Mr. Justice Donham discussed, this question at length and made reference to Annotations in American Law Reports.2 Likewise, in Malco Theatres v. McLain, 196 Ark. 188, 117 S. W. 2d 45, the same question was again discussed. I respectfully submit that the majority opinion is against the holding in these cases.
The majority opinion says:
‘ ‘ Granted that Tindall is chargeable with the error, there is still no ground for reversal unless the incompetent testimony prejudicially affected the issues between him and Mrs. Flowers.”
Tindall committed no error in the trial of the case; and this Court should not charge him with an error. Neither can the majority say that the incompetent testimony prejudicially affected the issues between Tindall and Mrs. Flowers, except by (a) the refusal to give any effect to the cautionary instructions of the Court, as previously copied; and (b) the speculation in which the majority indulges. Tindall is being forced to try his case again, when his attorney has committed no error and the Court gave the jury the cautionary instructions which we have repeatedly approved. So as to Tindall, I respectfully submit that the judgment should be affirmed.
Justices Mill wee and Robinson join in this dissent.Our Statutes authorize the consolidation of two cases, just as was done here. See §§ 27-1304, et seq., Ark. Stats.
In 4 A. L. R. (2d) 821 there is a recent Annotation on the point.