Opinion
[301 Ark. 19-B] Marci Talbot Liles, Little Rock, for appellants.
Bobby McDaniel, Jonesboro, for appellees.
HOLT, Chief Justice.
The appellees (Johnsons) request a rehearing for two reasons: 1) that the standard for a directed verdict has been changed by this opinion, and 2) that this court erred in finding that the Johnsons conducted an improper voir dire by holding that King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978), required them to establish an evidentiary foundation before asking the questions in issue concerning insurance.
The Johnsons initially contend that our decision essentially abolishes directed verdicts in favor of a plaintiff in negligence cases by holding that so long as a defendant files an answer denying liability, a directed verdict is not appropriate even though no evidence is presented by the defendant.
In our majority opinion, 301 Ark. 14, 781 S.W.2d 463, we relied on Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962), and found that the trial court erred in directing a verdict in favor of the Johnsons as to Jones's liability. The Johnsons point to the rule in Spink and proceed to suggest that we did not follow it. That test is as follows:
A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested [301 Ark. 19-C] witnesses and different minds cannot reasonably draw different conclusions from such testimony.
(Emphasis added.)
To the contrary, we followed the dictates of Spink and its progeny. Granted, we did not embellish on the evidentiary aspects of the case, perhaps giving the appearance that we ignored the testimony and merely relied on the fact that Jones filed an answer that contained a denial of the circumstances surrounding the collision as pleaded in Johnson's complaint.
Such is not the case. In our opinion, we did not mention that the officer, whom Johnson described as a disinterested witness, was not an eyewitness to the accident. Nor did we note that the officer's claim that Jones had been "following too close" was in conflict with Johnson's own testimony. Johnson testified that he had looked in his rearview mirror and had seen an eighteen-wheeler in the outside lane, but that he never saw Jones's car. However, all of these facts were considered in passing judgment.
Additionally, the officer's testimony, concerning Jones's remarks about failing to get over far enough, was far from an admission of negligence by Jones. Unquestionably, by Johnson's own testimony, an eighteen-wheeler was present at the scene immediately before the time of the accident and, had this matter been sent to the jury, the jury may well have surmised that the eighteen-wheeler may have contributed to the accident. In any event, the officer was not an eyewitness to the accident, nor did his testimony establish negligence on Jones's behalf as a matter of law.
A motion for a directed verdict is a challenge to the sufficiency of the evidence and is proper only when no issue of fact exists. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988).
In this case, there is evidence of record upon which a rational jury could "reasonably" draw different conclusions from the testimony of the various witnesses and, for this reason, the matter should have been submitted to a jury.
The Johnsons also argue that this court erred in finding that their voir dire, concerning the effect of jury verdicts upon insurance premiums, was not proper since it was not supported by [301 Ark. 19-D] a proper foundation.
We resolved this point of error against the Johnsons and clearly stated that:
In this case, Johnson's counsel, without laying any foundation, read the questions in issue directly from King. This was wrong and contrary to our holding in King. Questions of this nature must be supported by a proper foundation.
The Johnsons' concerns are repetitive of their original argument on appeal, and we have held that such repetition is an inappropriate subject for a petition for rehearing. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).
The petition for rehearing is denied.