Arkansas Kraft Corp. v. Coble

688 S.W.2d 319, 15 Ark. App. 25, 1985 Ark. App. LEXIS 1941

• Court: Court of Appeals of Arkansas
• Decided: May 1, 1985
• Docket: CA 84-315
• Status: Published

Opinions

Tom Glaze, Judge.

After a three-day trial on a tort action arising out of an automobile accident, a jury sitting in Conway County Circuit Court returned a verdict for appellees in the amount of $22,000. Appellees moved the trial court for a new trial based on irregularities in the jury selection, and the court so ordered. Appellant is appealing from the order granting a new trial.

The facts are undisputed. After extensive voir dire examination of the panel by the court and both attorneys, the clerk called eighteen jurors’ names. The parties used their three peremptory challenges, each using one on the same juror, leaving thirteen jurors. The court called the first twelve jurors on the list and discharged those remaining. After the jury was sworn, the court recessed for lunch. During the lunch break, one of the jurors had a family emergency and was excused by the court. The court then recalled the thirteenth juror who had not been struck by either party. Voir dire was again conducted on the juror by the court and both attorneys were given the opportunity to voir dire him. Over the objection of both attorneys, the court informed the dismissed juror that he would become a replacement juror. Appellees moved for a mistrial, and their motion was denied.

In replacing the excused juror, the court did not follow the procedure for an alternate juror as contained in Arkansas Rule of Civil Procedure 47 (b). Had the court used this procedure, each side would have had a peremptory challenge to use. Appellees urge that the court’s action in recalling an excused juror to use as a replacement, thus denying them an extra peremptory challenge, is an irregularity which materially affected their substantial rights under Rule 47(b). While we can conceive of circumstances that would require a new trial because of the trial court’s failure to follow Rule 47(b), appellees have failed to show any in this cause.

In Falcon Zinc Co. v. Flippin, 171 Ark. 1151, 287 S.W. 394 (1926), the court was presented with a similar set of facts. In that case, thirteen jurors remained after each side had used its three peremptory challenges. Rather than follow the statute which provided that the first twelve names remaining on the list shall constitute the jury, the court substituted another name from farther down the list. On appeal it was argued that this substitution constituted reversible error. The court held that all the names left on the list were deemed acceptable to the parties and that it was no violation of appellant’s rights to change the order in which names were chosen for the jury. The court stated: “In other words, the parties cannot complain of any change or substitution by the court among those who have been duly accepted by the parties.” Id. at 1153, 287 S.W. at 395. Although this was not an appeal of an order for a new trial, the court did rule that this irregularity did not prejudice the complaining party.

The grounds upon which a trial court may grant a new trial are stated in Arkansas Rule of Civil Procedure 59. The pertinent provisions are contained in Rule 59(a):

A new trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:

(1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial. . . .

The appellees fail to demonstrate any irregularity materially affecting their substantial rights to a fair trial. When the court recalled the dismissed juror, appellees had the opportunity to question him but declined. The appellees made no attempt to challenge the juror for cause, nor did they suggest to the trial court that they were entitled to an additional peremptory challenge. The replacement juror had not missed any substantive part of the trial; as a matter of fact, all that had transpired was that the jury was sworn. Finally, the verdict rendered by the jury was favorable to the appellees and was signed by the juror about whom they are objecting. From our review of the record, appellees made no showing of prejudice, and in view of their failure to do so, we believe the holding in Falcon Zinc Co. v. Flippin, supra, is controlling. Therefore, we conclude the trial court clearly abused its discretion in ordering a new trial, and we reverse and remand with direction to reinstate the jury’s verdict. See Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982).

Reversed and remanded.

Cooper and Mayfield, JJ., dissent.