text:
    Don McCORKLE v. Billy Russell JEFFERSON, Jr
    5-5824
    478 S.W. 2d 47
    Opinion delivered March 27, 1972

      Griffin Smith, for appellant.

      Eubanks, Files ir Hurley, for appellee.
   Lyle Brown, Justice.

This is an action in slander brought by appellee and he recovered judgment for $1,000. For reversal appellant contends that the undisputed facts show the statement charging appellee with theft was justified.

Here is a summary of the testimony given by appellee. At the time of the incident he was a student at the University School of Pharmacy in Little Rock. He was employed on Saturdays and Sundays as a clerk at Markham Inn, a motel. Appellant was president of Markham Inn. It was not unusual for employees to draw against their anticipated salary but not more than they would earn during that pay period. Appellee had many times drawn against his salary — $5.00 or $10.00 — by placing his “IOU” in the cash register. On Friday evening, February 7, 1969, appellee went to Markham Inn and with the consent of the night clerk, withdrew ten dollars from the cash register and placed therein an IOU for that amount after initialing it. Appellee was due to report for work early the next morning but he overslept because the night clerk failed to telephone him. When appellee awoke he telephoned Markham Inn to explain that he would be late and to his surprise a new man was on duty. From the conversation between appellee and the new clerk appellee learned that he had been discharged. Appellee went home to borrow some money and when he returned on Sunday he checked his mail box at the university student housing and found this message addressed to him: “Don McCorkle at the Markham Inn called me about an urgent emergency. ‘You have stole $10.00 from his register.’ He says you are to return it immediately or Monday morning he will contact the Medical Center and the police.”

Miss Campbell, the desk clerk at the student housing complex, testified that she took the message over the telephone from a man who identified himself as Don McCorkle, that she put the message in appellee’s box and notified her superior who approved the action.

Appellant testified in his own behalf. He conceded that the message given appellee was correct. He defended his actions on the ground that he had informed appellee on the Sunday preceding the withdrawal of the ten dollars that he was discharged; that he was therefore not an employee at the time he took the money and consequently had no more right than a stranger to withdraw the money. Appellant denied ever having authorized withdrawals from the register by employees.

Of course under the law we are bound by the verdict of the judge sitting as a jury if there is substantial evidence to support the judgment. The evidence proffered by appellee is substantial and we are not permitted to disturb the finding.

Affirmed.

Byrd, J., not participating.


source: Caselaw Access Project

author: John A. Fogleman, Justice. George Rose Smith, Justice,

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Eargle PHILLIPS, et ux
    5-5769
    478 S.W. 2d 27
    Opinion delivered March 27, 1972

      Thomas B. Keys and Philip N. Gowen, for appellant.

      W. B. Howard and Jack Segars, for appellee.
   John A. Fogleman, Justice.

Appellant contends that we should reverse the judgment in favor of the appellee landowner in this eminent domain case because the circuit judge permitted appellee to call as a witness H. K. McMurrough, a staff appraiser employed by appellant and to show, through his testimony, that he had made an appraisal of the property involved for appellant but was not being called as witness on its behalf. The trial court’s ruling on appellant’s objection, in pertinent part, was:

* * *the witness, McMurrough, may be called to the stand and may be asked questions which would bring out any factual observations that he may have made, assuming that he did make an appraisal of this property.
* * *Counsel for the landowners will be permitted to identify McMurrough with reference to his past and present employment; will be permitted to inquire as to, whether or not, he did submit an opinion as to his valuation of the property concerned; but will not be permitted to ask him in dollars and cents what this submission consisted of.
In making this ruling, I am mindful that under the Arkansas law that where a witness is available to a party and by reason of his employment subject to the party’s direction and control, a failure to call that witness, with reference to any fact in issue, creates what has been stated to be a presumption that his testimony would be adverse to the party who could have called him. It appears to me that, that which is referred to as a “presumption” is not a presumption of law, but is lather a presumption of fact, which is rebuttable and would be more properly termed an inference.* * *

The suit was filed June 27, 1968, and on the same date the court granted appellant immediate possession upon a finding that compensation estimated to be just by appellant had been filed in the registry of the court. That estimate as to the lands involved here was stated in appellant’s declaration of taking as $2,250. In September 1968, the court granted appellees’ petition for payment of the deposit to them, stating specifically that the payment was made without prejudice to appellees’ contention that they were entitled to additional compensation or to appellant’s right to contend, if it should so elect, that the tracts in question have a value of less than $2,250.

The court’s ruling was made after a hearing upon appellant’s motion to quash a subpoena issued for Mc-Murrough by appellees. That motion simply raised the objection that appellees had failed to tender fees to the witness for travel and expenses for loss of time from his occupation. An oral objection was then made to appellees’ attorney asking the witness to answer questions as an expert, without payment of an expert witness fee. Appellees’ counsel then stated that he did not propose to ask the witness any questions relating to his current professional opinion, but planned to ask Mc-Murrough if he had not made the original appraisal of the tract, and, if so, the amount of estimated just compensation he reported to the highway department, and the information he furnished to it and whether appellant had told him not to appear as a witness at this trial and a previous one, unless coerced. Appellant then stated that it was proper for appellees to ask the witness to state his opinion, but not to ask him to identify his employer or to otherwise disclose that Mc-Murrough worked for the highway department.

The court’s ruling was then made, but the court first ordered that ordinary witness fees be tendered. At the trial the state contended that benefits to appellees’ remaining lands in the unit from which some 8.36 acres were taken exceed the damages suffered.

Appellees showed by McMurrough’s testimony: the property lines of the unit involved, that the witness had made an appraisal before the suit was filed which was submitted to his superiors in the highway department, and that the highway commission did not subpoena him or direct him to appear at the trial. On direct examination the witness also told of his initial and subsequent inspections of the property, of his making a market study and doing record research on values and of contacting the landowners. No objection was made to any inquiry on direct examination.

Appellant’s counsel cross-examined the witness without any reservation of objections. The cross-examination revealed that his original appraisal made February 28, 1968, had been revised in May 1968. Appellant’s attorney then inquired whether he had checked specific sales. On redirect examination, the witness disclosed that he had used three comparable sales in making his appraisal, one of which was a contract by appellees to sell two acres at $3,000 per acre. Answers were also given to questions about three other sales. Again there was no objection by appellant to any question or answer. We find that the court’s action was not reversible error and affirm.

The trial of any lawsuit, fundamentally, should be a search for truth. The eminent circuit judge was correct in stating the effect of our holdings relating to the failure of a party to call as a witness one peculiarly available to him who is, or should be, possessed of knowledge material to an issue in the case. Abbott v. Prothro, 228 Ark. 230, 307 S.W. 2d 225. Broomfield v. Broomfield, 242 Ark. 355, 413 S.W. 2d 657. Lynch v. Stephens, 179 Ark. 118, 14 S.W. 2d 257; McLendon v. Johnson, 243 Ark. 218, 419 S.W. 2d 309; Saliba v. Saliba, 178 Ark. 250, 11 S.W. 2d 774; Southern Farm Bureau Cas. Ins. Co. v. McGibboney, 245 Ark. 1016, 436 S.W. 2d 824; Reliable Life Insurance Co. v. Elby, 247 Ark. 514, 446 S.W. 2d 215; Jones v. Jones, 227 Ark. 836, 301 S.W. 2d 737; Rutherford v. Casey, 190 Ark. 79, 77 S.W. 2d 58; United States Bond & Mortgage Co. v. Reddick, 199 Ark. 82, 133 S.W. 2d 23. See also, Farmer v. Smith, 227 Ark. 638, 300 S.W. 2d 937. In Broomfield, we said that the unexplained failure of a party to produce a witness with special knowledge of a transaction raises a presumption (or inference) that the testimony would be unfavorable, citing Rutherford v. Casey, supra; Jones v. Jones, supra; and National Life Company v. Brennecke, 195 Ark. 1088, 115 S.W. 2d 855.

In some of these decisions the peculiar knowledge of the witness was based upon his particular qualifications or expertise in certain fields qualifying him to have the knowledge of matters pertinent to the issues and to evaluate and interpret facts discovered by him. Witnesses such as this are expert witnesses who aid the jury to draw an intelligent conclusion on the issues. City of Jonesboro v. Pribble, 112 Ark. 554, 166 S.W. 576; Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S.W. 2d 690; Fireman's Ins. Co. v. Little, 189 Ark. 640, 72 S.W. 2d 777; St. Louis, I. M. & S. Ry. Co v. Keefe, 113 Ark. 215, 168 S.W. 131; Equitable Life Assurance Society v. Barton, 192 Ark. 984, 96 S.W. 2d 480; H. Rouw Co. v. American Ry. Exp. Co., 173 Ark. 84, 291 S.W. 1001; Dardanelle Bridge & Turnpike Co. v. Croom, 95 Ark. 284, 129 S.W. 280, 30 L.R.A. (n.s.) 360; T. & C. Ins. Co. v. Fouke, 94 Ark. 358, 127 S.W. 461. See also, Nelson v. Busby, 246 Ark. 247, 437 S.W. 2d 799; 31 Am. Jur. 2d 511, et seq., Expert and Opinion Witnesses, §§ 16, 17, 18.

Professor Wigmore has treated the subject of conduct as evidence of consciousness of a weak cause. II Wig-more on Evidence (Third Edition, 1940) 119, et seq., § 277. He says that such evidence would have to be confined to the conduct of parties in the cause, “since for them it would at any rate be receivable as an admission; for any assertion by an opponent in the cause may be offered against him as an implied admission.” Page 119, § 277. He mentions conduct of criminal defendants and then adds:

But the sort of conduct in question — suppression of evidence, bribery of witnesses, non-production of evidence, and the like — is a matter of law receivable equally against civil parties, and must therefore be treated in the light of this broader use.
It is enough, then, for practical purposes to note that this kind of conduct, though circumstantial in its nature, is guarded against evidential misuse as hearsay by using it, in civil cases, only when predicated of the party opponent, i. e., only when it could be treated as an admission;* * *
So far as regards the nature of the conduct which is open to this inference, all that can be said, in generalizing, is that there are broadly two sorts,
first, conduct indicating a consciousness of the weakness of the cause in general, — bribery, destruction of evidence, and the like;
and, secondly, conduct indicating a consciousness of the weakness of a specific element in the cause,— failure to produce a particular witness or a document, and the like.
In the former (§§ 278 — 284) the inference is an indefinite one, that the whole cause must be an unfounded one since such means are employed to sustain it; in the latter (§§ 285 — 292), the inference is a definite one, that the specific witness or document bears unfavorably on the cause.

As to the failure to produce evidence Professor Wig-more, page 162, § 285, then says:

The consciousness indicated by conduct may be, not an indefinite one affecting the weakness of the cause at large, but a specific one concerning the defects of a particular element in the cause. The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so,, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.

The author then reaches the particular field of expert testimony, page 177, et seq., § 290, stating:

The kind of witness or evidence is immaterial. The inference, for example, may be drawn from a failure to use expert testimony, or a failure to employ experiments or samples or like instructive evidence. # # #
In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation on his right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for non-production.
The inference (supposing the failure of evidence not to be explained away) is of course that the tenor of the specific unproduced evidence would be contrary to the party’s case, or at least would not support it. In other words, the inference does not affect indefinitely the merits of the whole cause, as it does when fraudulent conduct is involved (ante, § 277), but affects specifically and only the evidence in question.

It seems clear from the treatment given the subject by Professor Wigmore that evidence of conduct of the party in failing to call a witness is admissible. We have found no case that treats the particular question posed here as to the method of introducing this evidence of non-production of an expert witness on market value. Yet there are precedents closely enough related to indicate the propriety of the trial court’s action. In its first approach to the problem the Michigan Supreme Court, in Cooley v. Foltz, 85 Mich. 47, 48 N.W. 176 (1891), a personal injury action, said:

Plaintiff introduced one physician, known as an “eclectic,” and who had never graduated at any regular school of medicine, who testified to her injuries. The defendant then introduced two physicians as witnesses who had been called to- treat her both before and after the alleged trouble with the defendant. They obtained no knowlegde of her ailments and condition except what they had obtained in their professional capacity. This testimony was objected to as inadmissible under How. St. § 7516. The objection was well taken, and the testimony should have been excluded. Breisenmeister v. Supreme Lodge, (Mich.) 45 N. W. Rep. 977, and authorities there cited. The entire subject is there fully discussed, rendering further mention here unnecessary. The defendant evidently recognizes the error, as he has filed no brief in this court. In the event of a new trial it is proper to say that it was competent for the defense to introduce these witnesses, and prove by them that they had been called by the plaintiff to examine and prescribe for her. The failure of the plaintiff to produce them as witnesses was a legitimate fact for the jury in determining the merits of the case. One of the physicians testified that after he had been called by the plaintiff, and had examined her, she told him that she had sued Mr. Folz, and there was going to be a lawsuit over it, and that she would want him as a witness. This testimony had no reference to her condition, and tyas competent. Such statements are not within the statute.

Later, that court applied this precedent in finding error in the refusal of an instruction, in Vergin v. City of Saginaw, 125 Mich. 499, 84 N.W. 1075 (1901), saying:

The defendant’s counsel presented the following request: “It appears from the testimony that Drs. Sample and McGregor made examinations of the plaintiff a short time after she claims to have been injured. Dr. McGregor made two examinations, and Dr. Sample made one examination. They were for the purpose of ascertaining her physical condition.
The plaintiff has not called these witnesses. Her failure to produce them may be given such weight by you as you see fit.” The record discloses that the facts are correctly stated in the request.

In McKim v. Foley, 170 Mass. 426, 49 N.E. 625 (1898), the defendant’s denial that he signed a bond made the genuineness of his signature the principal issue in the case. It was disclosed on cross-examination of the defendant over his objection to the specific inquiry, that two handwriting experts had examined the alleged signature in his behalf. It was there contended that the trial judge erred in permitting the testimony, in instructing the jury that it might give such weight as it thought proper to the fact that the defendant had caused the bond to be examined by two experts who were not called to testify, and in permitting the plaintiff’s counsel to comment upon defendant’s failure to call upon these witnesses to testify as to their opinions on the subject. The specific contention on appeal was that there should be a distinction between cases when the witnesses not called were experts who could only express an opinion, and those in which they are witnesses to material facts. As grounds for the distinction, it was urged that a party could never know whether the trial judge would find the witnesses qualified and that no evidence of the qualifications of these alleged experts was ever offered, that courts do not ordinarily compel the attendance of experts upon the payment of statutory fees and the party may not be able to afford the expense of procuring their attendance, and that sometimes the witnesses are not willing to express a definite opinion. In rejecting these arguments, the court said:

The practice of permitting counsel to comment on the failure of the opposing party to call witnesses to facts needs to be used with caution, and such comments should be permitted only where it appears that the witnesses could have been procured, and it is a fair inference from the conduct of the party, under all the circumstances, that he knew or believed that the testimony of the witnesses would be adverse, and for that reason did not produce them. Com. v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215. Greater caution undoubtedly should be used in permitting any such comment where the witnesses are experts. But it may happen that the experts were well known, and have been present in court, and have been consulted frequently by a party and his counsel during the trial, and yet they are not called. In such a case, and in others which can easily be supposed, it might be a fair inference that the party did not call them as witnesses because he knew their testimony would be adverse. In such matters a good deal must be left to the discretion of the justice presiding at the trial. Exceptions overruled.

We have actually applied the rule favored by Wig-more to expert witnesses without having given specific recognition to it. In Watts v. State, 222 Ark. 427, 261 S.W. 2d 402, the identity of a rapist was the material issue. The defendant made efforts to obtain an FBI report disclosing the result of comparisons of hairs found on a hood worn by the guilty person and those taken from the defendant’s head after his arrest. These efforts were unsuccessful because the trial court ruled that the filing of the reports would not be required because they were not admissible in evidence. On trial a state’s witness testified in response to questions by defendant’s counsel that some of the defendant’s hair had been taken and sent, along with hair taken from the hood, to the FBI. The court sustained the state’s objection to defendant’s question as to the substance of the FBI report and instructed the jury to disregard any testimony as to a comparative examination of hair. We reversed, upon authority of holdings permitting argument that failure of a party to produce witnessess to whom material facts were known or to produce available competent evidence, when it is peculiarly within the power of that party to do so, creates a presumption that the evidence, if produced, would be unfavorable. We said:

We are not holding that the defendant was entitled to the F.B.I. report; but we are holding that the Trial Court committed prejudicial error in ruling out all the evidence about there being such a report concerning the comparison of the defendant’s hair with the hair found in the hood worn by the assailant. Such ruling by the Trial Court prevented the defendant’s counsel from arguing to the Jury anything about the failure of the State to offer the most definite evidence of identity that was available in this case. * * *
When the Court told the Jury to “disregard any testimony about an investigative or comparative report”, the Court thereby prevented the defendant’s counsel from commenting to the Jury on the failure of the State to present the evidence the State might have offered regarding identity. The defendant was entitled to have his court-appointed counsel allowed to argue to the Jury on the failure of the State to offer such evidence and the Court’s ruling precluded such argument.

In Watts, we clearly recognized the right of a litigant to offer evidence to show that his adversary was not producing testimony of expert witnesses consulted by him.

In Chicago, R. I. & P. Ry. Co. v. King, 210 Ark. 872, 197 S.W. 2d 931, there is inferential recognition of the propriety of evidence of non-production of medical experts. We said:

Appellants also contend that the failure of appellee to produce the testimony of the army physicians who treated his injuries raises a presumption that such testimony would have been unfavorable to appellee and would not have substantiated his claim for injuries. Appellants rely on the rule announced in Rutherford v. Casey, 190 Ark. 79, 77 S.W. 2d 58, 61, as follows: “The failure to produce evidence within the party’s control raises the presumption that if produced, it would operate against him, and every intendment will be in favor of the opposite party.” The proof in the case at bar does not show whether the testimony of these army doctors was available to appellee, and it cannot be said that such evidence was within his control under the aforementioned rule.

As a matter of fact while no discussion of any objections to testimony about the existence of witnesses not called is included in our own cases hereinabove cited in support of the general rules, it is obvious that the evidence came from some witness, and actually it is obvious that without such evidence there is not the remotest possibility that the inference could ever be applied. For example: in Lynch v. Stephens, the failure of a highway contractor sued by a subcontractor for an estimate due and retained percentages to call as witnesses his bookkeeper and engineer was said to justify an inference by the jury that their testimony would not have been favorable to the contractor; in McLendon v. Johnston, we assumed that the testimony about a survey relating to a boundary line was unfavorable to the party who admitted that she had paid surveyors to make it but failed to introduce either the survey or any testimony about it; in Saliba v. Saliba, an instruction to the jury that if either party had withheld any evidence under his control the law presumed that it would be against him if it had been introduced, was approved where a defendant having knowledge of the facts failed to testify and it was disclosed that only one of four witnesses who saw the accident involved testified in the case; in McGibboney, the existence of the insurance company’s coding clerk, who was not called, was disclosed through the testimony of the company’s office manager; in Abbot v. Prothro, the opinion recites V . .it is shown that the appellees employed three different surveyors. . .to survey the line before the trial”; in Jones, we referred to the failure to account for the absence of the witness; in Rutherford v. Casey, where the defendant testified that he sent certain bonds to a Mrs. Shephard in St. Louis, we said:

The failure to produce evidence within the party’s control raises the presumption that if produced, it would operate against him, and every intendment will be in favor of the opposite party. Kirby v. Tallmadge, 160 U. S. 379, 16 S. Ct. 349, 40 L. Ed. 463; Johnson v. Mary Levy and Brother, 109 La. 1036, 34 So. 68; Chicago and W. I. Ry. Co. v. Newell, 113 Ill. App. 263; Choctaw & Mem. Ry. Co. v. Newton (C.C.A.) 140 F. 225.
No reason is given by appellant for not producing Mrs. Shephard. After the appellant had testified as to when and where and the manner in which he mailed the securities to her, and the evidence showing that there is no record of such transaction, and the evidence also showing that Mrs. Shephard was not at the Chase Hotel, his failure to produce Mrs. Shephard raises the presumption that if produced, she would testify against him.

We have found no Arkansas case where the evidence was brought to the jury through the medium of the expert. Eminent domain cases involving the admission of this type of evidence are scarce. It has been held that the admission or exclusion of evidence that an appraiser employed by the state in an eminent domain action was not called as a witness lies in the sound judicial discretion of the trial judge, whose determination will not be interfered with on an appeal. See State v. Washington, 64 Wash. 2d 756, 394 P. 2d 218 (1964). On the other hand, the Texas Supreme Court has held that one party in an eminent domain proceeding cannot prove the names of appraisers engaged by the other to appraise the property but not called as witnesses in order to lay the predicate for a comment in argument on their failure to testify, even though he might call any such appraiser as a witness to testify as to his value opinions, but not to show by whom he was employed to either bolster his credibility or to create the impression that the adverse party was suppressing evidence. Boyles v. Houston Lighting & Power Co., 464 S.W. 2d 359 (Tex. 1971). In that case it was held that the trial court correctly excluded cross-examination of a landowner’s value witness to disclose the names of other appraisers who had appraised the property at the request of the landowner.

We can see no sound reason why the evidence as to failure of a party to produce an expert consulted by him cannot be shown by the witness rather than through the party himself or some other witness called by the party. This method particularly should be available when the party itself is inanimate and cannot be called to establish the facts.

Regardless of whether the identity of appraisers employed but not called as witnesses by the adverse party may be shown as a matter of right or only when permitted by the trial judge in the exercise of a sound judicial discretion, we could, not say that there was any error in the ruling in this case. Of course, in either approach, the party who had engaged the appraiser should have the right to offer evidence to explain his failure to call any witness whose identity is thus disclosed.

The judgment is affirmed.

Harris C. J., George Rose Smith and Jones, JJ., dissent.

George Rose Smith, Justice,

dissenting. I would reverse this judgment. In simple fairness a party ought not to be permitted to show, as the appellees did in the trial court, that his adversary has failed to call as a witness an expert whom his adversary employed merely for the purpose of obtaining an opinion. If such testimony has any effect at all, other than its intended purpose to arouse an attitude of passion and prejudice in the jury room, that effect is completely outweighed by reasons of policy for not admitting such proof and by the weight of authority elsewhere.

First, the testimony obviously is of no direct aid to the jury. Their problem is to arrive at the value of the property, in dollars and cents. To inform them that the highway department has not called to the witness stand one of its appraisers who has appraised the property cannot be of any assistance to the jury in reaching a dollars-and-cents verdict. Such proof merely arouses prejudice. By analogy, there is doubtless some slight probative value in testimony showing that a defendant later made repairs to the instrumentality involved in the accident in controversy, or in testimony showing what happened during the deliberations of the jury. But that slight probative value is demonstrably overbalanced by the policy considerations against the use of such evidence. That should be our holding here.

Secondly, on the record before us there is no reason to suspect any wrongdoing on the part of the highway department or its attorneys. Ordinarily a condemnor first makes an effort to purchase the desired property or right-of-way, rather than resorting at the outset to an eminent domain proceeding. There is clearly nothing wrong in the condemnor’s decision to send three of its appraisers, instead of only one, to view the property, before beginning to negotiate for its purchase. Presumably the landowner does exactly the same thing. Yet there is certainly no duty on either side to bring into court the appraiser whose opinion was the least favorable to the party employing him. Yet the majority opinion not only implies the existence of such a duty; it actually penalizes a litigant for not trying his lawsuit in what his attorneys believe to be the most advantageous and ethical procedure for their client.

Thirdly, it is no answer to say, as the majority do, that the party employing the appraiser has the right to explain the failure to call him as a witness. When the party and his attorney have done nothing wrong, they ought not to be put in the unfair position of having to prove the negative, by proving their innocence. An attorney may have many perfectly valid reasons for not calling the appraiser whose valuation was least favorable to his client. The attorney may simply conclude, in good faith, that the particular expert’s opinion is not as well founded as that of another appraiser. He may think that the particular appraiser would not handle himself well on the witness stand. He may learn that the particular appraiser has been to some extent discredited in an earlier trial in the same courtroom (a situation that was before us recently). Such reasons, though perfectly valid, are not readily explainable to a jury.

Moreover, the very attempt to explain raises collateral issues that are a waste of time and expense for all concerned. Yet the majority’s opinion will encourage that waste. This case, as a precedent, cannot be limited to real estate appraisers employed by the highway department. It will apply to the landowner’s appraisers. It will apply to both the plaintiff and the defendant in personal injury cases, where they obtain more than one expert medical opinion before trial. It will apply to all cases involving expert opinion testimony.

Finally, the better reasoned cases are against today’s decision. The exact nature of the inference that arises when a party fails to call a particular witness has been expressed in- countless different ways. McCormick puts the matter in the simplest possible terms by saying that the inference arises“[w]hen it would be natural under the circumstances to call a particular witness.” McCormick on Evidence, § 249 (1954). Caution must be used in allowing such an inference to be injected into a case. Schoenberg v. Commissioner of Internal Revenue, 8th Cir., 802 F. 2d 416 (1962); Grady v. Collins Transp. Co., 341 Mass. 502, 170 N.E. 2d 725 (1960).

I can find no clearcut holding that such evidence is admissible. Certainly the Arkansas cases cited by the majority do not require such a result. In Abbott v. Prothro, 228 Ark. 230, 307 S.W. 2d 225 (1957), the litigant had employed three different surveyors to survey a particular line. A surveyor is an expert, but he testifies to facts, not to opinions. In Broomfield v. Broomfield, 242 Ark. 355, 413 S.W. 2d 657 (1967), the witness who was not called was actually a party to the suit and, according to her codefendant, supposedly had relevant information about the case.

The case most clearly similar to this one is State v. Biggers, 360 S.W. 2d 516 (1962), which was cited and followed in the later Texas case cited by the majority. There the court, in answering the identical arguments now made by the appellees, had this to say:

[W]e are not to be understood as holding that the trial court erred in refusing to permit respondents to prove by the witness, or independently, that the witness was employed by the State Highway Department to make an appraisal of the property, that his appraisal was made for the State Highway Department, or that he was paid by the State Highway Department for making the appraisal. That proof could have no relevancy to the issues in the case. As we view the matter, its tender could only be for the purpose of supporting the credibility of the witness or of creating the impression with the jury that the State was suppressing evidence. It would not be admissible for either purpose. By calling Crowley to testify respondents make him their witness, and once his competency as an expert is established, they have no right to shore up his credibility until he is impeached or his credibility attacked. [Cases cited.] And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence. [My italics.]

In the Washington case cited by the majority, State v. Washington Horse Breeders Assn., the proffered evidence was excluded by the trial court. That decision was affirmed, the court saying that the question involved the exercise of discretion by the trial judge. A similar point of view was taken in Epstein v. City and County of Denver, 133 Colo. 104, 293 P. 2d 308 (1956), where the court, in affirming the trial court’s decision to exclude the evidence, said:

The jury was obligated to determine the value of the subject property upon the evidence before it under the instructions of the court, and could not indulge in surmises or speculation concerning what might or might not have been the result of an appraisal by some person or persons not produced as witnesses in the cause.

In Kentucky the point arose in a will contest when one side attempted to show that the other side had employed a handwriting expert without using him as a witness. With no reference to discretion, the court held the proffered proof to be inadmissible, saying:

Concerning the evidence that the appellees did not use as a witness a handwriting expert they had employed, the appellant seeks to invoke the rule that, where a party does not produce material evidence in his possession and under his control, there is a presumption that the evidence would be unfavorable to him. We are not aware that his rule has ever been applied to an expert witness whose testimony would be merely an opinion. In addition, the witness was available to the appellant, and his testimony therefore was not within the possession and under the control of the appellees, within the meaning of the rule. [Whitcomb v. Whitcomb, 267 S.W. 2d 400 (Ky. 1954).]

I do not mean to imply that the unfavorable inference in question can never arise with respect to a party’s failure to call an expert witness. Of course it can, as in the familiar situation in which an injured plaintiff fails to call the physician who has been treating him. That situation, however, falls within McCormick’s statement, that it would be natural for the party to call the particular witness. It is an entirely different thing to permit a litigant to introduce proof not otherwise in the case, for the deliberate purpose of creating an atmosphere of passion and prejudice in the jury room. I would hold such testimony to be inadmissible; or, if any discretion can be said to be involved, I would hold that it was abused in the court below.

Harris, C.J., and Jones, J, join in this dissent.


author: John A. Fogleman, Justice.

text:
    LAKE VILLAGE IMPLEMENT CO., Inc. v. Crowell COX
    5-5834
    478 S.W. 2d 36
    Opinion delivered March 27, 1972

      Clifton Bond and William H. Drew, for appellant.

      James A. Ross and James A. Ross, Jr., for appellee.
   John A. Fogleman, Justice.

This is the second appeal in this case, which was commenced October 17, 1968, by appellant Lake Village Implement Co., Inc., to replevy certain farm equipment for harvesting silage crops in the possession of appellee Crowell Cox. We reversed a judgment in favor of appellee for possession of the equipment and for $2,000 on his counterclaim for damages for loss of a 95-acre crop of silage, loss on cattle he expected to feed the silage and a down payment on the equipment. We held that the loss on the cattle was too remote to constitute a proper element of damages and that appellee could not recover both possession and his down payment.. See Lake Village Implement Co. v. Cox, 249 Ark. 733, 461 S.W. 2d 108. After remand, appellant amended its complaint to ask, in the alternative, for a recovery of the farm equipment and damages for detention, or for the balance due on the purchase price. Appellee also amended his pleadings to allege a repudiation and breach of a contract to sell and deliver possession of the equipment and prayed for recovery of $14,250 for loss of the silage crop, the down payment of $1,850 and $150 as the value of a four-wheel wagon, cylinder and hydraulic hose on which the equipment was mounted when repossessed and delivered to appellant.

Appellant, the seller of the goods, relies upon four points for reversal which are, in essence, failure of the circuit judge to direct a verdict in its favor for possession of the equipment, failure to direct a verdict in its favor contending that appellee’s counterclaim was based upon an alleged contract not to be performed within one year and not signed by appellant and thus within the statute of frauds, and that the evidence of this alleged contract was contrary to the final written expression of the agreement in violation of Ark. Stat. Ann. § 85-2-202 (Add. 1961), and failure to require appellee to elect whether he sought recovery of the fair rental value of the equipment under the replevin statutes or to rescind the contract and recover his down payment and other items of damage recited in Ark. Stat. Ann. § 85-2-711 (Add. 1961).

There was considerable conflict in the testimony as to the transaction between the parties. Appellant did sell appellee the farm equipment in question for cutting silage. The purchase price was $5,850. Most of the dealings on behalf of appellant were conducted by a salesman named George Kirkland. Appellee contends that the contract was evidenced by a retail purchase order prepared by Kirkland and signed by appellee. That document, dated August 10, 1968, described the equipment, listed the total price as $5,850, with cash on delivery $1,850, and the balance as “$4,000 to be financed.” On the other hand, appellant’s owner and manager testified that he disapproved this contract because oí the statement that the balance was to be financed and that Cox later came to appellant’s place of business and told Kirkland to order the equipment, saying that it would be paid for on delivery. The equipment was ordered after appellee’s check for $1,850, dated August 10, 1968, as down payment had been first rejected by the bank and then paid on August 23. Kirkland testified that the agreement evidenced by the purchase order meant that Cox was to arrange for financing the balance of the purchase price and that, since the equipment was specialized, appellant would not order it until financing was arranged. It was for that reason, said Kirkland, that he accompanied or assisted Cox in attempting to obtain loans to pay the balance. He claims that when these efforts were unavailing, he offered to refund the down payment, so Cox could buy the equipment elsewhere, whereupon Cox told him to order the equipment, assuring him that the balance of the purchase price would be paid in cash upon delivery. The equipment was ordered between the first and fifth of September, and delivered to the Cox farm before September 15. Kirkland said that he made an unsuccessful attempt to collect the balance from Cox two days later and when several other such attempts failed, he obtained a title retaining note dated September 17, 1968, and three postdated checks for the balance some 10 or 12 days after the equipment was delivered. He explained that Cox was in a hurry, so the note was not completely filled out, but that the amount and due date were filled in when Cox signed it and a partially completed financing statement. According to Kirkland, the checks were dated so that they would clear after a cattle auction then scheduled. The checks were dated September 24, September 30 and October 15, 1968. Festinger, the owner and manager of appellant, said that payment was refused on the first two of these checks, and that he sent Kirkland out to see Cox. Kirkland testified that his demand for possession of the equipment then made was refused, and the equipment was thereafter replevied.

On the other hand, appellee Cox testified that when he went to purchase the equipment, he told Kirkland he had a silage crop and needed the equipment to harvest it, that he signed the financing statement the same day he ordered the equipment and that the equipment had been delivered when, at Kirkland’s request, the two went to various banks to obtain financing on the balance of the purchase price, which he said he had agreed to pay in two equal annual installments. Cox said that the equipment had remained unused for about three weeks when Kirkland called on him just as he was preparing to harvest the silage crop and asked that the equipment be returned to the dealer’s lot during an inspection so there would be no inventory shortage due to the failure to obtain financing. Cox added that when he refused, Kirkland brought a $4,000 note which Cox signed and then Kirkland returned about three days later and obtained Cox’s signature on the three postdated checks, as security, even though Cox told him there was no money in the bank to cover them. Cox denied telling Kirkland that he would pay the checks after he sold some cattle at a sale, and said that he signed them upon the agreement that they would not be cashed. He said that the equipment had been used only two hours when replevied on October 17,1968.

We find no reversible error in the circuit court’s failure to direct a verdict in favor of appellant for possession of the equipment. It had been in appellant’s possession since the sheriff took it under the writ of replevin. Appellee, on the second trial, did not seek to recover possession, but claimed that appellant had repudiated and breached its contract by repossessing the equipment when he was not in default. There was at least a question of fact as to appellant’s entitlement to possession, but appellee is certainly in no position to claim any right to possession of the property after having elected to rescind the contract.

The contract was not within the statute of frauds, regardless of which version is accepted because the equipment had been delivered to, received and accepted by appellee, who had paid part of the purchase price. It was fully performed by appellant and capable of full performance within one year, except for the payment of the purchase price. It must appear from the terms of the contract that it was not to be performed within one year in order to bring it within the operation of the statute. Johnson v. Cheek, 163 Ark. 176, 259 S. W. 368. See also, Ark. Stat. Ann. § 85-2-202. We have held that the statute does not apply to contracts which may be (Completely performed on one side when nothing remains to be done during a period longer than one year, except for the payment of compensation. Manufacturer’s Furniture Co. v. Read, 172 Ark. 642, 290 S.W. 353; Reed Oil Co. v. Cain, 169 Ark. 309, 275 S.W. 333. While in these cases, the full performance was by the party seeking to recover the consideration for the contract, the weight of authority seems to be that the contract is taken out of the operation of the statute when there has been, or could be, full performance on the part of the other party. 37 C.J.S. 560, Frauds, Statute of § 50; 37 C.J.S. 774, Frauds, Statute of § 254. This seems to us to be the better rule, at least in cases involving the sale of goods.

We find no merit in appellant’s contention that it should have been granted a directed verdict because the testimony on behalf of appellee was prohibited by § 85-2-202 as a contradiction of the financing statement, title retaining note and postdated checks signed by appellee. The section of the UCC relied upon by appellant bars evidence of a prior or contemporaneous oral agreement to contradict terms with respect to which confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement. Of course, Cox stoutly denies that these instruments were intended as the final expression of the agreement of the parties, but says that the incomplete note and financing statement and postdated checks were executed only for the purpose of preventing embarrassment to appellant on inspection of its inventory because of its failure to get any lending institution to finance the deferred payments. Furthermore, § 85-2-202 is intended only to exclude parol testimony under the circumstances stated, but wé find no objection to the testimony, except for one made to Cox’s statement that Kirkland agreed not to cash the checks.

As we understand appellee’s amendment to his pleadings filed after remand, he elected to rescind the contract and sought a recovery of damages which would not otherwise have been allowable. The evidence introduced and offered by appellee shows that he was pursuing this remedy. If this, in itself, did not constitute an election by appellee, his testimony that he was asking for damages for repudiation and breach of contract and not seeking to recover the equipment certainly did. We find no reversible error on direct appeal, but do find such error on cross-appeal.

Appellee contends that the court erred in refusing to permit him to introduce evidence of his damages by reason of loss of his silage crop. Not only was there Cox’s testimony about his telling Kirkland of his immediate need for the equipment, it was admitted that it was “special order” machinery. Cox’s son testified that the equipment was especially adapted for getting the silage into his father’s upright silo. Kirkland said that it could not be delivered in less than 10 days after it was ordered, unless the purchaser went to one of the manufacturer’s branches and hauled it on his own truck. Harvesting had just begun when the equipment was repossessed and, according to Cox, could have been completed in 12 to 15 days. He said that it was essential that the process be completed within a period of two or three weeks. He testified that the crop was lost for want of harvesting equipment and that there was no other equipment in the area with which the crop could have been harvested and placed in his upright silo. Another farm equipment dealer testified that no one in the area stocked silage equipment in iyt>8. 1’he son said that efforts to cut me silage for hay failed because of the size of the plants.

Without reviewing the evidence introduced and proffered in further detail, there was evidence from which the jury might have found that: appellant was aware of appellee’s silage crops and the necessity for their expeditious harvesting; the equipment was especially adapted to that purpose; there was no other such equipment available in the area for lease or purchase in time to complete the harvest; the fair net value of the crop was $10 per ton and 1,425 tons were ready for harvest. If the jury found that appellant had repudiated the contract between the parties then appellee was entitled to cancel it and recover his purchase price and incidental and consequential damages. Ark. Stat. Ann. §§ 85-2-711, 713. Consequential damages would include loss resulting from the particular needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise. We think the evidence offered was sufficient to meet UCC standards. Ark. Stat. Ann. § 85-2-715, Committee Comment 4; Ark. Stat. Ann. § 85-1-106 (Add. 1961). It probably would be a different matter if the crop had not been virtually ready for harvest at the time of the purchase and the measure of damages as to the value of the crop so easily susceptible of proof.

Appellant argues that appellee could not recover these damages because he made no effort to obtain other equipment and he did not execute a cross bond when the property was replevied. Under the UCC, failure to “cover” is not a bar to recovery of consequential damages unless the loss could have reasonably been prevented by cover or otherwise. Ark. Stat. Ann. §§ 85-2-712 (3), 85-2-715 (2) (a). We have already stated that there were circumstances from which it might have been found that other such equipment would have been unavailable in time to prevent the loss. The failure to make redelivery bond is another matter. It appears that the language of the code recognizes the doctrine of avoidable consequences, i.e., that one cannot recover damages flowing from consequences that he might reasonably have avoided. We have recognized and applied this doctrine in many types of cases, among which are actions for breach of contract. Gibson v. Lee Wilson & Co., 211 Ark. 300, 200 S.W. 2d 497; School District No. 65 v. Wright, 184 Ark. 405, 42 S.W. 2d 555. Under this doctrine, one is required only to take such steps as may be taken at small expense or with reasonable exertion, and where the expense is so large as to make the requirement impracticable, the doctrine does not apply. Curtner v. Bank of Jonesboro, 175 Ark. 539, 299 S.W. 994; Childress v. Tyson, 200 Ark. 1129, 143 S.W. 2d 45. Reasonable diligence and ordinary care are all that is required. 22 Am. Jur. 53, Damages § 32. A lack of sufficient funds will usually excuse an effort to minimize damages. Valencia v. Shell Oil Co., 23 Cal. 2d 840, 147 P. 2d 558 (1944); Gray v. American Surety Co. of New York, 129 Cal. App. 2d 471, 277 P. 2d 436 (1954); Shellhammer v. Caruthers, 99 S.W. 2d 1054 (Tex. Civ. App. 1936). See Annot. 81 A.L.R. 282.

Our statute does permit a defendant in a replevin suit to retain possession of the property by executing a bond with sufficient sureties. Ark. Stat. Ann. § 34-2109 (Repl. 1962). In this case, that bond must have been double the value of the property at the time. In the absence of a hearing under Ark. Stat. Ann. § 34-2110 (Repl. 1962), presumably this would have been $11,700, double the value stated in plaintiff’s affidavit for replevin. The evidence clearly shows that banks were not willing to extend credit on appellee’s note for the purchase price balance. Payment was being refused on appellee’s checks. Appellee testified that he was compelled to sell his cattle immediately because of the loss of the silage crop. There is a strong indication that appellee would have had financial difficulty in making the bond and no evidence to the contrary. There is also an indication that he was ill at the time the property was repossessed. There was no absolute duty resting upon appellee to make a bond in order to preserve his claim. Commercial Credit Corp. v. Mackay, 221 Ark. 226, 252 S.W. 2d 819. If Cox was financially unable to procure a bond with sufficient surety, the law would not require him to lose his rights to damages by not doing so. W. B. Moses and Sons v. Lockwood, 295 F. 936, 33 A.L.R. 1467 D. C. Cir. 1924); Hoff v. Lester, 25 Wash. 2d 86, 168 P. 2d 409, 164 A.L.R. 751 (1946). See also, Annot. 33 A.L.R. 1479. In this connection all relevant and material facts should be considered, among which are the expense involved, appellee’s financial ability, the relation between the costs and the damages claimed, and the amount of time reasonably estimated to be required before final judgment would be entered. Hoff v. Lester, supra. It must be established by proof that the claimant seeking damages was financially able to execute the bond, before the doctrine will apply. Dale v. Peden, 252 S.W. 2d 687 (Ky. Ct. App. 1952); Hoff v. Lester, supra. To say the least, the question whether Cox used all reasonable efforts to minimize his damages was one for a jury. Baston v. Davis, 229 Ark. 666, 318 S.W. 2d 837.

Since we find no reversible error on cross-appeal, normal disposition of the case would require remand for a new trial in spite of our finding that there was no error in the judgment on direct appeal and the fact that neither party complains of the $150 in damages allowed for Cox’s wagon and equipment. We cannot affirm the judgment on appeal and remand the cáse for a trial on the issue of damages for crop loss only, as prayed by appellee. This is because the jury verdict, even though directed, is an entity which we cannot sunder. Manzo v. Boulet, 220 Ark. 106, 246 S.W. 2d 126. Consequently, the judgment must be reversed and the cause remanded for a new trial, unless appellee elects to file a waiver of his cross-appeal within 17 days.


author: J. Fred Jones, Justice.

text:
    Virgil GARRETT v. Robert J. PUCKETT
    5-5812
    478 S.W. 2d 48
    Opinion delivered March 27, 1972

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellant.

      W. M. Herndon, Frank J. Gamble III, for appellee.
   J. Fred Jones, Justice.

Robert Puckett and Virgil Garrett were driving their respective pickup trucks in the same direction and in the same traffic lane on Asher Avenue in the City of Little Rock. Garrett was behind Puckett and when Puckett stopped to permit a vehicle to turn from the street in front of him, Garrett’s vehicle collided with the rear of Puckett’s vehicle.

Puckett sued Garrett in the Pulaski County Circuit Court for personal injury and property damage, and Garrett answered with a general denial and a counterclaim for damage to his pickup truck. Both parties alleged the usual acts of negligence on the part of the other and a jury trial resulted in a verdict for Garrett on Puckett’s complaint, and for Puckett on Garrett’s counterclaim and a judgment was entered on the verdict. Pucket filed a motion to set aside the judgment and for a new trial and the motion was granted by the trial court. Garrett has appealed to this court contending that,

“the trial court erred in setting aside the jury verdict and ordering a new trial.”

At the trial, the parties offered conflicting evidence as to the cause of the collision; Puckett’s evidence tending to prove that Garrett was following too close and too fast without paying attention to what he was doing, and Garrett’s evidence tending to prove that Puckett stopped without signal or warning in violation of law. In setting aside the verdict of the jury and the judgment thereof the trial court found that the verdict of the jury was contrary to the evidence and without substantial evidence to support it.

The statute provides for the granting of a new trial when the verdict or decision is not sustained by sufficient evidence, Ark. Stat. Ann. § 27-1901 (Repl. 1962). Upon motion for a new trial, the trial court has a duty to review the verdict of the jury rendered on conflicting evidence (Texas & Pacific Ry. Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978), and the trial judge has a duty to set aside a jury verdict when he finds it to be against the preponderance of the evidence. Stanley v. Calico Rock Ice & Electric Co., 212 Ark. 385, 205 S.W. 2d 841; Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872. It is equally well settled that we only reverse the ruling of the trial judge in setting aside a verdict he finds to be against the preponderance of the evidence when we find that the trial judge has abused his discretion. Houston v. Adams, supra; Farmer v. Smith, 227 Ark. 638, 300 S.W. 2d 937; Worth James Construction Co. v. Fulk, 241 Ark. 444, 409 S.W. 2d 320; Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898; U.S.F. & G. Co. v. Hagan, 246 Ark. 629, 439 S.W. 2d 915.

A trial judge has the advantage of observing the demeanor of witnesses as he hears their testimony before a jury, whereas we must read their testimony from the printed page. Consequently, we do not pass upon the weight of the evidence in determining whether a trial judge has abused his discretion in setting aside a jury verdict and granting a new trial, for we recognize that his opportunity for passing on the weight of the evidence is far superior to ours, and we will not interfere with his judgment unless his discretion has been manifestly abused. Meyer v. Bradley, 245 Ark. 574, 433 S.W. 2d 160, (Bowman v. Gabel, supra).

We have held that the trial court has inherent power during the term to set aside its own judgment and that we will sustain the trial court’s judgment in doing so unless the verdict is so clearly supported' by the preponderance of the evidence as to indicate abuse of discretion on the part of the trial judge. Bobbitt v. Bradford, 241 Ark. 697, 409 S. W. 2d 339.

In Bowman v. Gabel, supra, a jury verdict was set aside and a new trial granted by the trial court. On appeal to this court the appellant contended that the preponderance of the evidence supported the findings of the jury, and that the verdict should not have been set aside and in that case we said:

“Of course, we will not disturb a judgment based upon a jury verdict if there is any substantial evidence to support it (unless the court erred in giving the law). But whether there was any substantial evidence, or even a preponderance of the evidence, is not the test where the court has already set aside a verdict, and that action is appealed to this court. The proper test is stated in the recent case of Worth James Construction Company v. Fulk, 241 Ark. 444, 409 S.W. 2d 320. There, we said:
'In seeking a reversal, counsel for the appellant rely upon our familiar rule that a verdict supported by any substantial evidence will be upheld in this court. That rule does not apply to a case such as this one, where the trial court has set aside the verdict as being against the weight of the testimony. Here the issue, as we have said, is whether the trial judge abused his discretion.’ ”

We find no abuse of discretion in the case at bar so the judgment is affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    Alvin B. EANES DEVELOPMENT COMPANY, Inc v. Robert L. INMAN et al
    5-5844
    478 S.W. 2d 52
    Opinion delivered March 27, 1972
    [Rehearing denied April 24, 1972]

      Tanner & Wallace, for appellant.

      Hale, Hale ir Fincher, and Macom, Moorhead ¿r Green, for appellee.
   Conley Byrd, Justice.

Alvin B. Eanes Development Co., Inc., a one man corporation owned by Alvin B. Eanes, entered into an oral contract with Robert L. In-man to construct a residence for the latter in Carlisle, Arkansas. Both Eanes and Inman admit that the agreement was reached in Inman’s dental lab but they disagree on the terms. Eanes contends that the agreement was cost plus ten percent profit, with the ten percent being limited to $5,000. Inman contends that the agreement was cost plus ten percent with the understanding that the total would not exceed $50,000.

Eanes brought this action against Robert L. Inman and Loretta G. Inman, his wife, and First Federal Savings and Loan Association of Stuttgart, alleging that the house cost $53,068.73, that the Inmans had paid only $50,000 and that he was entitled to a mechanics lien for the difference, plus his $5,000 fee, which would be superior to First Federal Savings’ lien. The Chancellor observed that both Eanes and Inman were reputed by the witnesses to be fine men, one a successful builder and the other a dentist, and being unable to determine whose version of the contract was correct, denied any relief to Eanes. Of course, Eanes as the plaintiff had the burden of persuasion. From the record we cannot say that the chancellor’s finding on the oral contract issue is contrary to a preponderance of the evidence.

The Inmans readily admit that they added some extras to the house plans as they went along for which they are obligated to pay, in addition to the $50,000. Eanes on the other hand admits that the Inmans are entitled to credits for light fixtures and some appliances. We have gone through the record and giving Eanes the benefit of every doubt, we find that we are unable to determine, without pure speculation, any amount for which Eanes should have judgment. Therefore, we must affirm on this issue also because the burden of proof was on Eanes to show the costs of the extras for which he was entitled to judgment.

The denial of a lien to Eanes moots the priority of liens issue between him and First Federal Savings and Loan Association of Stuttgart.

Affirmed.

Jones, J., not participating.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    Jerry McMAHEN, tax collector of Ouachita County Arkansas et al v. Wilson HARGETT
    5-5832
    478 S.W. 2d 43
    Opinion delivered March 27, 1972

      Beryl Anthony, Pros. Atty., by: Allen P. Roberts, Deputy Pros. Atty., for appellant.
    /. S. Brooks, for appellee.
   Frank Holt, Justice.

The appellee, taxpayer, brought this action against the appellants to prevent the collection of the 1970 tax assessment increases. The increases ranged from approximately 30 to 57% more than the 1969 assessments on appellee’s real estate. The appellee alleged that the failure of the assessor to give notice of the increased assessments prevented him from appealing to the equalization board and other appropriate agencies; that when the increases were discovered the equalization board was no longer in session; and that in the absence of proper legal notice the increased assessments constituted an unlawful tax and illegal exaction by taking appellee’s property without due process of law.

The chancellor held that the increased assessments for the tax year 1970 were illegal since the appellee received no notice of the increases and ordered that the tax collector should collect only those taxes which were due based upon the preceding year for which appellee’s property was assessed. For reversal of that decree the appellants assert that: “The tax assessor was not required to give notice to the plaintiff of the amount of the 1970 assessment since the plaintiff did not voluntarily assess for 1970.”

It was agreed that the cause be submitted to the court upon the following stipulation of facts: Appellee-landowner made no voluntary assessment for the 1970 tax year; the tax assessor assessed appellee’s real estate before July 1, 1970 and increased the assessment as detailed in appellee’s complaint; appellee received no notice of the increased assessments from the assessor; the equalization board never considered the increased assessments.

The law provides that the taxpayer may assess his own property between the first Monday in January and April 10. Ark. Stat. Ann. § 84-414 (Supp. 1969). Also, the county assessor is required to annually assess all real estate between the first Monday in January and July 1. Section 84-415 (Repl. 1960). Furthermore, when a taxpaper volunarily assesses his real estate and the assessor raises that assessment, the taxpaper is entitled to written notice from the assessor. Section 84-437 (Repl. 1960).

The appellants agree that when the assessor increases the assessed valuation of property voluntarily assessed by a taxpayer, the landowner is entitled to written notice inasmuch as he has a right to rely upon his voluntary assessment unless properly notified. The appellants take the position, however, that when a taxpayer fails to voluntarily assess each year and does not affirmatively ascertain his assessment by the tax assessor, the taxpayer has waived any right to a written notice.

The appellee responds that when a taxpayer omits assessing his property on a year following his previous' assessment, this omission, in effect, “constitutes a voluntary assessment of the evaluation used in the previous tax year and amounts to a voluntary assessment of the property for the current tax year.” In other words, the inaction of the taxpayer for the current assessment year results in an extension of the previous year’s tax as a voluntary assessment and, therefore, entitles the taxpayer to written notice.

In Dierks Forests v. Shell, Assessor, 240 Ark. 966, 403 S.W. 2d 83 (1966) a voluntary assessment was made. There we said:

“First, the tract-by- tract procedure. For many years this has been the usual method by which assessed values have been determined. Under this procedure the landowner may, though he is not required to, voluntarily assess his property between the first Monday in January and April 10. Section 84-414. Dierks followed that course, filing its assessment on April 7.
Whether or not a landowner assesses his property the county assessor must assess all real estate between the first Monday in January and July 1. Section 84-415. If the assessor raises the landowner’s own assessment he must give written notice to the landowner and inform him that he may appeal to the equalization board not later than the third Monday in August. Section 84J 437.
TT W
The opportunity to appeal to the equalization board and thence to the courts is an essential part of the tract-by-tract procedure. Under the federal constitution the property owner is entitled at some point to notice and an opportunity to be heard on the fairness of his assessment, as compared with the assessment of other property. McGregor v. Hogan, 263 U. S. 234 (1923); Londoner v. Denver, 210 U.S. 373 (1908). Our law complies with the constitution by affording the landowner the necessary opportunity for a judicial review.”

Without the essential elements of thp right of notice and appeal, there is a conflict with the constitutional requirement of due process of law. Security Trust Co. v. Lexington, 203 U.S. 323 (Ky. 1906); Central of Georgia Railway v. Wright, 207 U.S. 127 (Ga. 1907). The general rule appears to be that when a taxpayer does not assess his property, the proper official may do so as authorized by statute providing the taxpayer is given proper notice and has the right to be heard with appellate review. 84 C.J.S. Taxation § 401.

In the case at bar there were major increases in the assessment valuation of appellee’s property. It is agreed that he had no notice from the assessing authority as to these increases in assessments and, further, that such increases were never considered by the equalization board. In the circumstances, to hold that appellee was not entitled to written notice of the increases in his assessments would constitute a denial of due process of law. The appellee had the right to appear and be heard through the appellate processes provided by our statutes before the increased assessments became irrevocably fixed.

Affirmed.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I do not agree that either the Arkansas Statutes or due process requirements make necessary a notice to the owner of a tax assessor’s assessment of property which has not been assessed by the owner, as required by statute.

The argument that the owner’s failure to assess is a voluntary assessment at the values fixed for the preceding year is without any support in law.

The assessor is required to file a report of his assessment by a specified time. Ark. Stat. Ann. § 84-447 (Repl. 1960). An owner has a right of appeal from this report to the Board of Equalization. Ark. Stat. Ann. § 84-708 (Repl. 1960). We said in Dierks Forest v. Shell, 240 Ark. 966, 403 S.W. 2d 83, that opportunity for judicial review provided by our laws met federal constitutional requirements.

This is quite a different matter from an effort to assess property claimed by the taxpayer to be exempt, where the assessor’s action was final and not appealable or reviewable.

I am authorized to state that Mr. Chief Justice Harris joins in this dissent.


author: Carleton, Harris, Chief Justice.

text:
    William Glenn RICHARDSON v. Linda Kathleen RICHARDSON
    5-5833
    478 S.W. 2d 423
    Opinion delivered April 3, 1972

      Warner, Warner, Ragon & Smith, by Wayne Harris, for appellant.

      Jack Rose, for appellee.
   Carleton, Harris, Chief Justice.

Two issues are raised in this litigation, the first concerning a determination of the paternity of a female child born on January 4, 1971, to Linda Kathleen Richardson, appellee herein, and the second relating to the custody of Julie Ann Richardson, born November 1, 1969. On trial, the court held that William Glenn Richardson, appellant herein and husband of appellee, was the father of the daughter born in January 1971, and held that appellee should also have custody of the older child, Julie Ann, admittedly the daughter of the parties, with the right of visitation to the appellant of three weeks each third month, such visitation to commenee on July 1, 1971. The court directed that appellant pay $15.00 per week for the support of the children. From the decree so entered, appellant brings this appeal.

The background relating to the first issue is found in paragraph 7 of the court’s decree, which reads as follows:

“On August 18, 1970, upon the trial of this cause, this plaintiff and corss-defendant [appellee] was pregnant. Therefore, this court took this case under advisement to allow both parties to receive professional counseling and to allow for the birth of this plaintiff’s child. Further, on August 18, 1970, this court ordered plaintiff, defendant, and said minor child to have a blood test taken as soon as it was reasonable to do so. The court finds that on the 9th day of February, 1971, both plaintiff and defendant consented to go together to the laboratory of Dr. Annette Landrum to have the necessary blood test completed as ordered by the court to determine if this defendant could be excluded as the father of said child born on January 4, 1971. Thereafter, the required blood tests were performed by Dr. Annette Landrum, M.D., F.C.A.P., Pathologist, and report submitted to this court dated February 10, 1971, stating, ‘We are able to exclude Glenn Richardson as the father of the second daughter on the basis of the S Factor. Since Glenn Richardson and Linda Richardson are both negative for the S Factor and since the second daughter is positive for the S Factor, she would have to have inherited it from some other source. Therefore, Glenn Richardson could not possibly be the father of the second daughter.’ Upon the request of defendant’s [appellant’s] attorney and without objection from plaintiff or her attorney, this report from Dr. Annette Landrum dated February 10, 1971, was received into evidence in this cause in accordance with Ark. Stats. § 34-705.1. The court further finds that plaintiff and her attorney were given the opportunity to cross-examine Dr. Annette Landrum with regard to her professional qualifications as well as the integrity of said blood test. Plaintiff and her counsel waived the opportunity to cross-examine Dr. Annette Landrum in either respect.”

However, the court found that the parties lived together until about May 15, 1970; that the divorce action was filed on behalf of Mrs. Richardson on June 16, 1970, and at the time of the hearing on August 18, 1970, appellee was five months pregnant. It was further found that appellant made no claim or offered no proof of impotency or non-access to appellee “to overcome the strong presumption of legitimacy and paternity of said minor child, and this court, therefore, finds that this defendant and cross-complainant is the father of the second daughter born on January 4, 1971. This court finds that this defendant and cross-complainant is as a matter of fact and as a matter of law the father of the newly born child”.

Though with natural and understandable reluctance, we are compelled to find that the court erred in its determination that appellant was the father of the second child. The trend over the nation within the last several years has been to recognize the value and accuracy of blood tests to determine paternity. In Wigmore on Evidence, section 165a p. 610, it is stated:

“In one specific biological trait, viz. blood-groups, scientific opinion is now in accord in accepting the fact that there is a causative relation between the trait of the progenitor and the trait of the progeny. In other words, the blood-composition of a child may be some evidence as to the child’s paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively, i.e., to evidence that a particular man P is not the father of a particular child C.”

In 9 Uniform Laws Annotated, p. 102, there is a discussion on the subject of “Blood tests to disprove Paternity”, in which it is stated:

“In paternity proceedings, divorce actions and other types of cases in which the legitimacy of a child is in issue, the modern developments of science have made it possible to determine with certainty in a large number of cases that one charged with being the father of a child could not be. Scientific methods may determine that one is not the father of the child by the analysis of blood samples taken from the mother, the child, and the alleged father in many cases, but it cannot be shown that a man is the father of the child. If the negative fact is established it is evident that there is a great miscarriage of justice to permit juries to hold on the basis of oral testimony, passion or sympathy, that the person charged is the father and is responsible for the support of the child and other incidents of paternity. *** The conclusion should be final if there is no dispute among the experts. There is no need for a dispute among the experts, and true experts will not disagree. Every test will show the same results.”

In the New York case of Anonymous v. Anonymous, 150 N.Y.S. 2d 344 (Supreme Court, Appellate Division, Second Department), the court held that even though the husband had lived with the wife for five years after the birth of his putative children (twins) before discovering evidence of adultery the husband was entitled to blood grouping tests of himself, his wife, and the children, for purposes of excluding his paternity of these children. This holding was rendered despite the fact that the husband had lived with the wife during the gestation period and for the five years mentioned. A discovery of correspondence from a third party to the wife contained significant remarks to indicate intimate relations between the wife and the writer. This precipitated the action for divorce. It was argued by the wife that the husband and wife had continuously lived together during the period of gestation of the twins and for more than five years afterward, and that the husband had accepted the children as his own and had never questioned his paternity. The wife stated that the letters were a manufactured fabrication. The court commented:

“Reason and logic, as well as a recognition of the modern advances in science, compel a determination that the presumption of legitimacy is not conclusive but rebuttable. The probative value of the results of skillfully conducted blood grouping tests has been widely accepted. The tests of course will be relevant only if they show noncompatibility as between the blood of defendant, the plaintiff, and the twins. If so, such evidence should be deemed conclusive as to nonpaternity. ***
There is no doubt that with the passing of years and the advance of science the age-old concept has gradually given way to the sway of reason, and that the presumption of legitimacy has been withering and shrinking in the face of scientific advances, (citing cases) Presumptions are looked upon as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.’ (citing cases) It cannot be gainsaid that we have now reached the point where presumptions must yield to modern scientific facts.”

In the Nebraska case of Houghton v. Houghton, 137 NW 2d 861 (1965), the wife sued the husband for divorce. After filing her petition, she filed a supplementary petition, alleging that the parties had resumed the marriage relationship and were expecting the birth of a second child, but acts of cruelty had again occurred, and she therefore sought a divorce. The husband answered, admitting he was the father of the first-born child, and also admitting that he had subsequently had sexual relations with his wife, but he denied being the father of the expected child. This child was born on October 1, 1963, and the trial court found the husband to be the father and awarded a decree of divorce to the mother, along with the custody of the two minor children. The husband appealed, alleging inter alia that the trial court had erred in its finding that he was the father of this second child; further, that the court had erred in not finding that the results of blood tests of the mother, husband and the infant were conclusive in showing that he could not be the father; that such evidence overcame the presumption that the child was his. The Supreme Court of Nebraska said:

“We have reviewed the evidence of the doctor carefully and we think the qualifications of his technicians to make the tests have been adequately shown as have his qualifications to interpret them. Although this is the doctor’s first test for nonparentage, other tests of that nature have been made by his partner using the same facilities. The plaintiff introduced no medical testimony to refute them. The doctor who performed the tests was agreed upon by both parties and was not working for either one of them. We conclude there is nothing in the record which would indicate any defect in the testing methods, and his testimony and conclusions remain unshaken.
Having determined that no defect in the testing methods appear from the evidence concerning the blood tests in the case before us, the next question presented is what consideration and weight should be given to the results disclosed by them. Various statutes have been passed providing for blood tests in cases where paternity is an issue. Plaintiff contends that in the absence of a statute specifically authorizing such blood tests this court should not consider them in the present case at all. The Supreme Court of New Hampshire, in Groulx v. Groulx, 98 N.H. 481, 103 A. 2d 188, 46 A.L.R. 2d 994, a case which had been decided in the trial court before the passage in that state of such a statute, held that judicial recognition should be accorded the accuracy and reliability of blood grouping tests to disprove paternity. See, also, State v. Damm, 62 S.D. 123, 252 N.W. 7, 104 A.L.R. 441, where the court corrected and clarified its original holding of 3 years before, stating: ‘We therefore say, without further elaboration or discussion, that it is our considered opinion that the reliability of the blood test is definitely, and indeed unanimously, established as a matter of expert scientific opinion entertained by authorities in the field, and we think the time has undoubtedly arrived when the results of such tests, made by competent persons and properly offered in evidence, should be deemed admissibile in a court of justice whenever paternity is in issue.’ Many authorities are thereafter cited. We hold this court should likewise take judicial notice of the scientific accuracy and reliability of such tests.”

In the Colorado case of Beck v. Beck, 584 P. 2d 731 (1963), the evidence was conflicting as to whether the husband had access to the wife during the possible period of conception. The trial court directed a verdict in favor of the wife and the husband filed a motion for a judgment non obstante veredicto attaching thereto a blood test taken by agreement, said blood test finding that the child could not be the som of the husband because the child possessed antigen “E”, a factor or element not possessed by either the husband or the wife. The trial court granted the husband’s motion, and the appeal followed. The Supreme Court, in an opinion by Justice Sutton, affirmed the action of the trial court in granting the motion non obstante veredicto stating:

“In the instant case the accuracy of the blood test was not challenged by the wife. Her only thesis on this issue being that it is incompetent to overcome the presumption of legitimacy. We must hold otherwise. To hold as she contends would be contrary to an established scientific fact. In this connection see the excellent dissent in Prochnow v. Prochnow, 274 Wis. 491, 80 N.W. 2d 278 (1955) with which we agree and which contains a thorough discussion of this type of medical evidence. We note that following the Prochnow decision, and undoubtedly due to the persuasive dissent therein, the Wisconsin statute was amended to make it mandatory for the court to order the blood test when relevant in a paternity action and that the result shall be conclusive where exclusion is established.”

In Commonwealth v. D’Avella, 162 N.E. 2d 19, the Supreme Judicial Court of Massachusetts said:

“Here we have definite evidence based on blood tests, the integrity of which is conceded, excluding the defendant. To hold in the light of such evidence that it was still open to the trier of fact to find that the defendant was the father would be egregiously unrealistic. The reliability of such tests to prove nonpaternity is well established as a scientific fact. Evidence which is regarded and acted upon every day as con-elusive by skilled scientists outside of court ought not to be treated merely as some evidence (to be believed or disbelieved as the trier of fact sees fit) when it is adduced in court. We cannot close our eyes to the overwhelming weight of scientific opinion on this subject and we take judicial notice of it.”

Numerous other cases from other jurisdictions hold similarly.

The Arkansas General Assembly has recognized this trend, and in 1955 passed an Act which is presently codified as Ark. Stat. Ann. § 34-705.1 (Repl. 1962) et seq. This section is included in the chapter on “Bastardy” and appellee argues that it only relates to bastardy proceedings and has no application to divorce actions (it is not explained why the words “husband” and “wife” are used). Such argument is really of no moment here, for scientific advances would support the offering of this evidence, even though no statute authorized it.

Some jurisdictions have held the blood test excluding paternity to be conclusive, while others have only considered it as strong evidence, to be considered in conjunction with other evidence. In the case before us, it is not necessary that we determine whether the results of these tests are always conclusive, for, together with the other proof in this case, we think the result establishes conclusively that appellant is not the father of the second daughter. While Mrs. Richardson denied acts of adultery, the weight of evidence is contrary to her testimony. No good point would be served in detailing this evidence; it is enough to say that it is convincing, and when the blood grouping tests of Dr. Landrum are added to it, the evidence is certain and conclusive.

Let it be remembered that both husband and wife consented to go to the laboratory of Dr. Landrum, together with the baby, to have the necessary blood tests completed, and, though given the opportunity to cross-examine Dr. Landrum with regard to her qualifications and the integrity of the blood tests, appellee declined to do so. No question whatsoever has been raised about the competence of the doctor to conduct the tests, nor has any objection been made to the manner in which is was conducted. As stated, we hold that it has been established that William Glenn Richardson is not the father of the second daughter.

Despite this holding, we are of the view that the chancellor’s order as to custody should not be disturbed. Appellee lives with her parents, who appear to be substantial citizens of Fort Smith, and there is no evidence of misconduct since she has been living with the parents. Appellee does not work, and is accordingly able to look after the children, and the facilities for taking care óf them are more than adequate. The husband lives with his parents in White House, Tennessee, and of course, his mother would have to look after the child, while appellant is at work. Perhaps our view is somewhat influenced by the fact that we are hesitant to separate these two little girls. Should that become necessary, the chancellor has full authority to make any changes in his order of custody, and, in fact, the chancellor’s order finds that the children should be awarded to appellee “at this time for so long as said plaintiff and cross-defendant continues to reside in the home of her parents.”

Nor do we deem it proper to change the amount of money ordered for support of the children. The court directed appellant to pay $15.00 per week, and, though appellant is not liable for the support of the second daughter, we certainly cannot find that the $15.00 per week is in excess of the amount required for the support and maintenance of the older daughter, Julie Ann.

In accordance with what has been said, the decree is reversed as to the first point, and the cause remanded with directions to enter a decree not inconsistent with this opinion.

Fogleman, J., would reduce the amount for child support.

      The woids “the second daughter" are used instead of the name of the child, and will be so used throughout this opinion.

      Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the mal court may direct that the husband, wife and child submit to one [1] or more blood tests to determine whether or not the defendant can be excluded as being the father of the child. The results of the tests shall be receivable in evidence, but only in cases where definite exclusion is established. The tests shall be made by a duly qualified physician, or physicians, or by another duly qualified person, or persons, not to exceed three [3], to be appointed by the court. The costs of the test shall be taxed as other costs in the case or, in the court’s discretion, may be taxes against the county. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings. Whenever the court orders such blood tests to be taken and one of the parties shall refuse to submit to such test, such fact shall be disclosed upon the trial unless good cause is shown to the contrary.”

      The cases of Martin v. Martin, 212 Ark. 204, 205 S.W. 2d 189; West v. King et al, 222 Ark. 809, 262 S.W. 2d 897; Thomas v. Barnett, 228 Ark. 658, 210 S.W. 2d 248, relied on by the appellee, are not in point. No blood grouping tests were given in any of these cases, and in fact, the putative father was dead.


author: George Rose Smith, Justice.

text:
    Dr. S. William ROSS v. Dora H. McDANIEL et al
    5-5804
    478 S.W. 2d 430
    Opinion delivered April 3, 1972

      Smith, Williams, Friday, Eldredge ir Clark, for appellant.

      Jones & Matthews, for appellee.
   George Rose Smith, Justice.

This is an action for malpractice brought by the appellees, Dora H. McDaniel and her husband, against Dr. Ross. In the trial court Dr. Ross moved for a summary judgment, on the ground that the suit is barred by the two-year statute of limitations. Ark. Stat. Ann. § 37-205 (Repl. 1962). The trial judge denied the motion, holding the statute to be unconstitutional insofar as it denied a remedy to the plaintiffs. Counsel for Dr. Ross perfected an appeal as a precautionary measure, to guard against the possibility that the trial court’s order might be held to be appealable under the final paragraph of Ark. Stat. Ann. § 27-2101 (Supp. 1971). That paragraph provides for appeals from orders involving the constitutionality of any statute.

The order is not appealable. We have twice held that the statute in question provides for an appeal only if the order in question is a final judgment. Wright v. City of Little Rock, 245 Ark. 355, 432 S.W. 2d 488 (1968); State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S.W. 555 (1916). Moreover, we have also held that an order denying a motion for a summary judgment is not appealable. Widmer v. Fort Smith Vehicle & Mach. Corp., 244 Ark. 971, 429 S.W. 2d 63 (1968). Upon either ground the appeal must be dismissed, in harmony with our long-standing-policy against the piecemeal consideration of cases.

Appeal dismissed.


text:
    BOONE COUNTY ABSTRACT & TITLE COMPANY v. BOONE COUNTY et al
    5-5848
    478 S.W. 2d 429
    Opinion delivered April 3, 1972

      N. J. Henley and Fitton, Meadows ir Adams, for appellant.

      Ray Thornton, Atty. Gen; by Gene O’Daniel, Asst. Atty. Gen., and Bill F. Doshier, Pros. Atty., for appellee.
   George Rose Smith, Justice.

This case involves a lease by which Boone County, acting through its county court, rented certain space in the county courthouse to the appellant, Boone County Abstract & Title Company, for a term of three years, with an option in the lessee to renew the lease for an additional two years. The lease was approved by a county court order entered on December 22, 1970.

A new county judge took office on January 1, 1971. In February that judge, together with several taxpayers, took an appeal from the county court order approving the lease, it being their contention that the lease was not in the best interest of the county. The circuit court, without considering the testimony having to do with the merits of the case, entered an order canceling the lease, upon the ground that the incoming county judge had an absolute right to repudiate the contract simply by taking an appeal from the county court order within the time allowed by law.

The circuit court was in error in not reaching the merits of the case. In Watts & Sanders v. Myatt, 216 Ark. 660, 226 S.W. 2d 800 (1950), we pointed out that county contracts must be approved by the county court, that an outgoing judge, acting as a court, has authority to bind his successor contractually, and that appeals from such county court orders are tried de novo in the circuit court. Other cases recognizing the validity of properly executed county contracts include Kleiner v. Parker, 177 Ark. 671, 8 S.W. 2d 434 (1928), and Craig v. Griffin, 107 Ark. 298, 154 S.W. 945 (1913).

In the case at bar the lease to the appellant, approved by county court order, was prima facie valid. The circuit court, however, had the duty of reviewing the county court order de novo, to determine whether the lease was vitiated by fraud or collusion or was otherwise an improper contract on the part of the county. The court was in error in not trying the case anew. In law cases it is not our province to decide issues of fact in the first instance. Hot Springs Sch. Dist. No. 6 v. Surface Combustion Corp., 222 Ark. 591, 261 S.W. 2d 769 (1953); Manzo v. Boulet, 220 Ark. 106, 246 S.W. 2d 126 (1952); Reddick v. Scott, 217 Ark. 38, 228 S.W. 2d 1008 (1950). The cause must therefore be remanded to the trial court for further proceedings.

Reversed and remanded.


author: Lyle Brown, Justice.

text:
    ARKANSAS LOUISIANA GAS Co. v. Ben F. HARDGRAVE et ux
    5-5849
    478 S.W. 2d 772
    Opinion delivered April 3, 1972
    [Rehearing denied May 8, 1972]

      Williams ir Gardner, for appellant.

      Edgar A. Woolsey, for appellee.
   Lyle Brown, Justice.

Appellees own a 293-acre tract utilized as a cattle ranch. Appellant procured an easement for a gas line across that part of the land used for pasturing and for meadows. The taking was forty feet in width and 2,593 feet long containing approximately 2.4 acres. A jury fixed just compensation at $3,500. Appellant contends that appellees’ witnesses gave no reasonable bases for their opinions as to damages and that their testimony should have been stricken; and secondly, that there is no substantial evidence to support the verdict.

Since the substantiality of the evidence is attacked we shall need recite, in abstract form, the testimony of the landowners and their expert witnesses.

The testimony of landowner Hardgrave. He is thoroughly familiar with the land, having moved on it in 1946. Since 1957 he acquired all but fifty-three acres from his family. He has 205 acres he uses for grazing and pasture. It is fenced, ditched, and leveled, and contains two stock ponds. Part of his bermuda grass is cut for hay and another part is in winter pasture, rye grass and clover. He runs 100 head of cattle in the winter. It produces 200 bales of hay to the acre. He is familiar with land sales in that area. He valued the 205 acres, across which the pipeline runs, at $300 per acre before the taking, and at $275 an acre after the taking, a total difference of $7,000. Following the construction the rains washed Out two ditches which begin on the right-of-way and run across the lands. The ditches are not sodded over and run up to three feet in width. There is a bank near the center of the pipeline which will have to be cut down and the entire right-of-way will have to be fertilized and sodded. The fair market value of the entire tract, as a unit, is affected by the easement.

The testimony of appellees’ expert witnesses. (1) Hobart Yarbrough has lived in that county all his life, has owned real estate all his adult life, and for two years represented a national real estate company. He is a former circuit clerk and has done appraisal work in Johnson County and surrounding areas. He has been acquainted with appellees’ land since 1921. He made an appraisal with respect to the easement. In making his appraisal he considered the entire tract as having a value of $250 an acre before the taking and $225 an acre after the taking. He introduced some comparable sales. He reduced the tract $25.00 per acre “because of the attractiveness it would have to a buyer when he goes and views it. He can see the condition of it and can see what he’s got to do and that he would probably be spending twice that before he got through. I mean by the attractiveness, the pipeline itself. That the center of it is higher and has about enough slope to drain. When this water accumulates above and comes down it is going to cut across and cause the soil to take off down towards the Mississippi Delta ... It has become less attractive because there is erosion accumulating along that pipeline . . . There were already little valleys in there when the line was built this water comes on down there against and cut across and as it backed up down there in the valley it cut a ditch every time it rains it cuts a little further back uphill ... It damaged the four acres by taking it out of existence and there is a ditch and you can’t grow anything in a ditch . . . There is going to have to be a lot of dirt hauled and piled onto the erosion within the four acres . . . It’s going to have to be reseeded and sowed over ditch lines . . . He’s already lost a lot of hay on the meadow, has now lost and will lose a lot of grazing where those ditches are within the right-of-way. You’ve got erosion wherever it has occurred.”

(2) Witness Harold Lewis. He is a real estate appraiser and president of the First Federal Savings & Loan Association of Clarksville. He considered the entire ownership north and south of the road, 293.97 acres, as a farming unit. He found the difference in market value to be $6,424.50. His difference in the before and after market value, acreage wise, was $20.00 per acre. “The basis of my reduction is, if I project what would happen if I exposed this property to the open market after the taking of this easement, I do not believe that the property has the same appeal to a purchaser that it would have had if he continued to have complete ownership of the complete parcel.” There is a ridge where the pipeline was buried and the backfill was made. There is erosion present with ditches. Rocks are present which were not there before. It would cost a lot of money to repair those damages. In addition to the four acres which can be seen to have been damaged by erosion, the damage done to the balance of the acreage is that “it just won’t sell for as much money.” He has talked to owners who have experienced a pipeline across their property and knows that it just will not sell as well as if the pipeline were not present.

Witness Mary Giacomine, a photographer, presented ten pictures of the land which tended to corroborate the conditions that existed after the taking, as described by the expert witnesses and the landowner.

We conclude that the testimony of the witnesses presented a fair and reasonable basis for their value opinions and constituted substantial evidence. Before the trial court would be warranted in striking all the after-value testimony (as requested by appellant) it would have to be evident that there was no reasonable basis whatever for the values. The values may be shown on cross-examination to be weak or questionable; that fact would merely go to the weight to be given the testimony. Arkansas State Highway Comm’n. v. Sargent, 241 Ark. 783, 410 S.W. 2d 381 (1967).

Affirmed.