Smith v. Wittman

Paul Ward, Associate Justice

(dissent). It is not clear from the majority opinion, as I think it should be, whether Instruction No. 14 is treated as inherently erroneous or as merely conflicting with other instructions given by the court. Personally I consider the Instruction inherently erroneous, but in either event the cause should be reversed, in my opinion.

If inherently erroneous, then the majority opinion appears to be in direct conflict with Walther v. Cooley, 224 Ark. 1027, 279 S. W. 2d 288, where, at page 1038 of the Arkansas Reports, this court quoted with approval from former decisions of this court:

‘ ‘ ‘ The rule that all the instructions must be read together, and that an omission in one instruction may be cured by another, does not extend to instructions inherently erroneous and misleading.’ ”

If only conflicting with other instructions, then, in my opinion, the cause should also be reversed, under our former decision in J. Foster & Co. v. Woolridge, 199 Ark. 551, 134 S. W. 2d 526, in reversing the trial court for giving conflicting [and misleading] instructions, we said, at page 555 of the Arkansas Reports: “To say the least of it these two instructions are so conflicting that the jury was probably misled by giving both of them.”

Likewise we said, in Arkansas Baking Company v. Aaron, 204 Ark. 990, 166 S. W. 2d 14:

“It is impossible to know in a given case, what consideration jurors gave to one instruction as distinguished from another. We only consider whether (in the light of experience and the psychology and conduct of mankind in the average) separate instructions, one being erroneous and the other correct, probably resulted in a verdict against the party who complains of the mistake.”