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 objectionable 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 (hereafter 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 allegedly 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 given 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 together 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. Apparently 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 appellant'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 cccurence 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 occurence, then the Defendant had a duty to use ordinary 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 Linywiler 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 employee picked up a pistol which a policeman had checked 

at the counter and accidentally shot and injured the appellant. 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 properly applicable to a landowner's responsibility for the 

condition of his premises rather than to his liability 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 company. 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 cantrol 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. Thereafter 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. However, I believp the opinion fails to give proper consideration to some important points which were raised 

and which are most likely to occur in the event of another 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 liability insnrance company?"
1064	 TATTJM v. HESTER.	 I:241 

Counsel for Rester (defendant) immediately asked 

for a mistrial and the court promptly granted the motion.

Although a prior question asked is not in the record, it is apparent from the statements made by the presiding judge that the question regarding insurance was 

immediately preceded by another question In substance, 

the first question inquired of the panel whether the apparent 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 reasoning 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 Smitherman, in substance, if he could disregard the apparent 

ability or inability of a defendant to pay a judgment. 

Shackleford objected and the question was unanswered. The court overruled the objection and proceeded to take over the questioning of the panel. After 

numerous questions were asked by the court, Mr. Whetstone 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 apparent 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 consideration. Ability or inability to pay cannot be introduced 

into evidence. On this point I believe the court is in error, assuming it to have been ruled that the question is 

never proper under any circumstances. It is human nature 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 impression that a party to a case has ability or inability to pay. 

A question of the same content is in fact not infrequently propounded by counsel for a large corporation when 

it is being sued by a widow or on behalf of minor children 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 discretion, 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 advantage. 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, separately 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 examination. Then, too, the court would seem to have the responsibility of moving forward on questions concerning statutory 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 other 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.