author: John A. Fogleman, Justice.

text:
    William F. BOWER v. Oleeta MURPHY
    5-4958
    444 S. W. 2d 883
    Opinion delivered September 29, 1969

      Frierson, Walker & Snellgrove, for appellant.

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

This appeal involves questions pertaining to the application of our statutes on discovery and related pretrial procedures as they relate to the physician-patient privilege. They arose in a personal injury action brought by appellee against appellant. She alleged that her injuries were sustained as a result of the automobile in which she was a passenger having been struck from the rear by a vehicle operated by the appellant on February 25, 1967. Her suit was filed on June 6, 1968. Appellant denied liability and pleaded other defenses. Appellee alleged that by reason of the collision she was caused to suffer severe and permanent injuries to the body generally and the neck and spine in particular.

On October 15, 1968, appellant filed a motion praying that the court, by proper pretrial order, require appellee to elect whether she would call medical witnesses at the trial and, if so, that appellant be permitted to take the deposition of Dr. James T. Robertson and Dr. Paul T. Stroud. The motion was heard by the trial court on the date of its filing. By written stipulation, it was agreed that if the deposition of Dr. James T. Robertson of Memphis, Tennessee, were taken, he would testify that he is a physician specializing in neurosurgery and that appellee was treated by him both before and after February 25, 1967. It was also stipulated that if the deposition of Dr. Paul T. Stroud of Jonesboro were taken he would testify that he is a practicing physician and that he treated appellee subsequent to the incident complained of and had caused X-rays to be made of her on February 27, 1967. It was also stipulated that appellee’s counsel objected to any testimony by either physician as to any observations, treatment, diagnosis or communications on said occasions in the absence of a ruling of the trial court on appellee’s objection. The trial court held that it was without power to grant the relief prayed in the motion.

On October 18, 1968, appellant took the discovery deposition of appellee. 8he admitted on that occasion that Dr. Stroud had treated her for other conditions prior to her injury. She also admitted that she had been treated by Dr. Robertson during the preceding three years and was still under his care. She refused to answer inquiries as to the conditions for which these doctors had previously treated her on the ground of privilege. She also failed to answer and objected to a question asking whether she had ever been told she had arthritis of the spine or neck. Further interrogation was abandoned when appellee’s counsel stated that he was going to instruct her not to answer as to any communication made hy her to any doctor, at any time, including the injury of which she complains and not to answer any question regarding what any doctor may have told her, at any time, relating to any condition from which she might suffer.

On October 24, 1968, appellant filed a motion to require appellee to answer these and other proper questions addressed to her concerning her previous medical condition and treatment. In her response, appellee again asserted her right to refuse to answer any question concerning any treatment administered to her by any physician, or any communication made by her to any physician for the purpose of enabling him to diagnose, prescribe, treat or do any act for her as a physician or surgeon while attending her in a professional character. Appellant also moved that she be required to answer certain inquiries by Dr. Barnett, to whom she had gone for examination upon appellant’s request. The trial court found that the appellee properly refused to answer all these questions because they were within the medical privilege.

Upon the hearing of a motion to require appellant to deliver X-rays taken by Dr. Barnett and exhibited to his deposition for examination and copying, appellee again asserted that she had not waived her claim of privilege.

The case was tried on November 1, 1968. The fourth witness called by appellee was Dr. Paul Stroud, her family physician. He interpreted the X-rays taken by him as showing evidence of existing minor osteoarthritis of the neck. He also found evidence of muscle spasm in appellee’s neck. Dr. Stroud compared the X-rays made by him in February of 1967 with those made by Dr. H. C. Barnett, employed by appellant to examine appellee. By this comparison he found increased and additional evidence of degenerative osteoarthritis of the spine of appellee. He stated that muscle spasm was usually associated with muscle trauma but supposed that one could have it with marked arthritis. He stated that appellee had had headaches both before and after her injury but that she had characterized them as being headaches of different types. He did not recall her having made any complaints of tenderness in the region of the neck or any limitation of motion of her neck prior to this injury. Dr. Stroud stated on direct examination that the symptoms of the appellee, in his opinion, could all be produced by an arthritic syndrome with possibly a little nervous tension or they could all be produced by trauma as a result of the collision. According to him, a myelogram by a neurologist would tend to indicate whether appellee’s symptoms were attributable to the trauma or to arthritic changes. Dr. Stroud had no opinion whether the traumatic experience caused the existing symptoms of appellee either in whole or in part.

Immediately after the direct examination of Dr. Stroud was concluded, appellant moved for a continuance alleging that by reason of previous claims of privilege by the appellee, appellant had been deprived of any opportunity to obtain information as to the condition of appellee at and prior to the time of her alleged injuries and as to any disabilities which she may have suffered at or prior to the time of the collision. He also alleged he had been deprived of any opportunity to make a comparison of X-rays similar to that made by Dr. Stroud. It was asserted that appellant’s counsel was unable to properly cross-examine the medical witnesses offered by appellee without expert advice and interpretation by a physician and that appellant could not be adequately prepared to defend without information as to appellee’s medical history. Continuance was sought until such time as appellant had been afforded an opportunity to interrogate all physicians who had examined and treated appellee for conditions of which, she complained, to avail himself of expert counsel as to the interpretation of various X-ray pictures offered and to obtain the testimony of expert witnesses in rebuttal of the findings and opinions of physicians offered as witnesses by appellee.

After the motion for continuance was denied, Dr. Stroud testified he had suggested that Mrs. Murphy see Dr. Robertson, a neurologist in Memphis, and ask him-to check the condition of her neck because she was already under his care. Appellee later told him that she had not mentioned the matter to Dr. Robertson and he said, “For God’s sake do it.” He stated that the condition for which he suggested a myelogram is within the field of Dr. Robertson. Dr. John T. Gray, another physician called as a witness by appellee, testified that there was evidence appellee had a preexisting arthritic condition and that it is difficult to say whether the minimal arthritic condition she had would account for a loss of lordotic curve in her neck or whether it would be attributable to trauma. He detected a definite increase in arthritic changes and in calcification during the five months intervening between his examination of appellee. and that of Dr. Barnett. He stated that one might con-, elude that whatever change occurred between these ex-animations was the result of progress of the arthritis and that arthritis is a disease. He did feel that the preexisting arthritis had been aggravated by the accident;.

While- appellee testified that she did not know she had any ..arthritis prior to the accident, she admitted that she had gone to Dr. Robertson and another Memphis physician for headaches. She stated that Dr., Robertson did not make any X-rays of her neck or spine after the accident although he had made some before the accident.

Appellant relies upon the court’s denial of his motion for pretrial discovery of medical evidence, as well as upon the denial of his motion for continuance, for reversal. He strongly urges that we adopt the rule stated in Mathis v. Hilderbrand, 416 P. 2d 8, 21 A. L. R. 3d 907 (Alaska 1966) and State ex rel McNutt v. Keet, Judge, 432 S. W. 2d 597 (Mo. 1968). In those cases it has been held that the filing and maintenance of an action to recover for physical injuries is, in itself, a waiver of the physician-patient privilege to the extent that attending physicians may be required to testify on pretrial deposition and that medical records and information must be disclosed on pretrial. Appellee contends that this very argument has been rejected by this court in Maryland Casualty Company v. Maloney, 119 Ark. 434, 178 S. W. 387. We agree with appellee in this argument. The Maloney case was cited with approval and followed in American Republic Life Insurance Company v. Edenfield, 228 Ark. 93, 306 S. W. 2d 321. We do not feel that the discovery and pretrial statutes are in such conflict with the decisions in those cases that we should depart from the rule therein stated.

Appellant argues, however, that these statutes permit the trial court to require a plaintiff in an action such as this to state whether or not medical evidence will be offered and thereupon to permit discovery of such evidence by the defendant. Our discovery statutes [Ark. Stat. Ann. §§ 28-348 — 28-359 (Bepl. 1962)] are based on the Federal Buies of Civil Procedure on Deposition and Discovery (Buies 26-37). In most particulars the statutes are verbatim copies of the rules. The pretrial conference statutes [Ark. Stat. Ann. §§ 27-2401— 27-2403 (Bepl. 1962)] were patterned after Federal Buie of Civil Procedure 16. This court has long recognized the salutary purposes of discovery procedures and the applicability of the principle of liberal construction of the act to accomplish those purposes. In Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 3d 749, we said:

“The language of this statute was taken verbatim from Federal Rule 34. It follows that our legislature, in adopting the wording of the federal rule, also adopted the principle of liberal construction that had been announced in the leading case of Hickman v. Taylor, 329 U. S. 495, 91 L. Ed. 451, 67 S. Ct. 385: ‘We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.’ ”

In Widmer v. Ft. Smith Vehicle and Machinery Corporation, 244 Ark. 626, 427 S. W. 2d 186, we said:

“It should not be necessary to point out that the discovery statutes were intended to assist in clarifying the issues in a law suit and help eliminate the elements of surprise and resulting delay in reaching a fair and impartial result at the trial of a law suit on its merits.”

This court has long recognized that a litigant may be required to disclose the names of persons having knowledge of material facts in issue. Dritt v. Morris, 235 Ark. 40, 357 S. W. 2d 13. When circumstances are such that justice requires it, a party may be under a duty to disclose the identity of witnesses he expects to call. See King v. Carden, 229 Ark. 929, 319 S. W. 2d 214.

We find certain language of the Supreme Court of Washington particularly appropriate in this situation. It said:

“We would agree that whenever it does become apparent that the plaintiff must decide in favor of waiver, then that waiver should not be delayed until the trial itself. The plaintiff should not have the unfair tactical advantage of a trial waiver which almost invariably results in a continuance and, frequently, in the dismissal of the action and another trial.
Certainly, at some stage in the pretrial proceedings, the plaintiff must decide whether he is going to call his treating physician or physicians, and, if he is, then the defendant is entitled to know it in time to take the deposition of such physician or physicians and prepare to meet their testimony.
* * * The federal courts, operating under identical rules, seem to have had little difficulty in accelerating the waiver of privilege on a case-to-case basis without the necessity of a blanket waiver.
* * * In other federal cases, the trial court has compelled, upon request, the delivery of a list of the witnesses (together Avith their addresses) to be offered on the trial. * * * The presence of his treating physician on the plaintiff’s list of Avitnesses is regarded as evidencing his intent to waive the privilege and may subject the physician to deposition. Tf the plaintiff desires to prevent the deposition being taken, or to limit its scope, he has the burden of convincing the trial court that the deposition should not be taken or to show good cause for such limitation.
"We can see no reason why our trial courts, exercising the same broad discretion, should not treat a plaintiff’s inclusion of his treating physician among his list of intended witnesses at trial as indicating his intent to waive his privilege. Such an apparent accelerated waiver could then enable the defense to utilize the full range of pretrial discovery procedures as to the treating physicians named and to the same extent and subject to the same controls as would govern discovery after waiver at trial.” Phipps v. Sasser, Wash., 445 P. 2d 624 (1968).

Even though the Washington court ultimately concluded that in the particular cases before them there was not a sufficient showing to justify the taking of the depositions of the injured parties’ treating physicians, in those cases the defendants in personal injury actions had undertaken to take the depositions of the physicians without any application to the trial court and without asking any disclosure of the identity of the witnesses for the injured parties. This result in no way dilutes the strength of the statement that the inclusion of a treating physician among the list of a party’s intended witnesses could be taken to indicate the intent to waive the privilege.

Mfe think that the motion made by appellant in this case was not as broad as it might have been. Regardless of whether the circumstances here were such as to have justified requiring appellee to disclose the names of all of the witnesses she intended to use, we think that she could properly have been required to state the names of any medical witnesses she expected to call. This motion simply asked that she be required to state whether she proposed to call any physician as a witness on her behalf. This was clearly within the range of permissible discovery and would have, at an appropriate stage in the proceedings, informed the court and the opposing party whether or not appellee intended to rely upon, or waive, her claim of privilege. The failure of the court to require appellee to do so was certainly prejudicial to appellant in the preparation of his defense.

Tt is widely recognized in the decisions of the courts of other jurisdictions that circumstances such as developed here would inevitably require a continuance or a mistrial when a plaintiff had consistently invoked the privilege until the actual calling of a physician in the course of a trial. See State ex rel McNutt v. Keet, Judge, 432 S. W. 2d 597 (Mo. 1968); Mathis v. Hilderbrand, 416 P. 2d 8, 21 A. L. R. 3d 907 (Alaska 1966); Phipps v. Sasser, supra; Awtry v. United States, 27 F. R. D. 399 (D. C. N. Y. 1961). The very situation which arose in the trial is that sought to be avoided through the use of pretrial procedures. We have no hesitation in holding that the trial court did have the power to grant the motion of appellant. Its failure to do so constitutes reversible error. We do not intend to say that there is no situation in which an injured party could show cause why he should not be required to make an election as to the exercise of his privilege. We do say that there was no such showing in this case.

In view of the position we take on the first point for reversal, it seems unlikely that other points asserted by appellant will arise upon a new trial of this case ■ — at least in the same background in which they arose on the first trial. The one exception is the assertion that it was error to permit appellee to offer evidence of the difference in market value of the automobile before and after the collision in which appellee was injured. The theory upon which this evidence was offered was that it was admissible for the purpose of showing the force of the impact. We do not see how this particular evidence could be admissible for that purpose. It is true that we have held that a repair bill is admissible in evidence for the purpose of showing the force of the impact in an automobile collision; however, the difference in market value could scarcely be considered to be a measure of the force of an impact. We do not consider the introduction of this evidence in the first trial as prejudicial error, because there was detailed testimony as to the parts of the vehicle damaged and the parts repaired and an admission by the witness through whom the testimony was offered that the vehicle could have been repaired more cheaply than his statement as to the difference in market value.

The judgment is reversed and the cause remanded for a new trial.

      For example see: Burlage v. Haudenshield, 42 F. R. D. 397 (D. C. Ia. 1967); Greene v. Sears Roebuck & Company, 40 F. R. D. 14 (D. C. Ohio 1966); Awtry v. United States, 27 F. R. D. 399 (D. C. N. Y. 1961); Mariner v. Great Lakes Dredge & Dock Company, 202 F. Supp. 430 (D. C. Ohio 1962). (Footnote ours.)


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Simon ZUNAMON v. J. E. STEVENSON Jr. et al
    5-4966
    445 S. W. 2d 102
    Opinion delivered September 29, 1969
    [Rehearing denied October 27, 1969]

      Daggett & Daggett, for appellant.

      Drew & Holloway, for appellees.
   Frank Holt, Justice.

The appellant instituted this action to enjoin and restrain appellees from trespassing upon certain lands claimed by him. Appellee Stevenson responded by seeking a similar injunction against appellant and, further, asked that title to the disputed lands be quieted and confirmed in him. The lands in question were formerly owned by Mrs. Hazel Townsend in Sections 2, 3, 10, 11, 14 and 15, Township 16 South, Range 1 West in Chicot County, Arkansas. A levee runs north and south across these lands. The lands in dispute are situated between the levee and the Mississippi River.

In 1961 Mrs. Townsend conveyed to Chicago Mill and Lumber Company all of her lands lying east of the levee of the Southeast Arkansas Levee District. The deed contained this provision:

“It being mutually agreed and understood that the proposed conveyance will include all of the property owned by Hazel Cook Townsend lying East of the levee in said Township and Range, together with all accretions, relictions or island formations.”

She reserved to herself a small five-acre tract not involved in this action.

In 1962, or a year later, appellee Stevenson and a partner (who later conveyed his interest to appellee) purchased from her the remaining portion of the Townsend lands. In appellee Stevenson’s deed, however, there is a provision which reads-:

“It being the intention of Grantor to convey to Grantees all lands owned by Grantor as of this day, * * * less and except any lands lying East of the Riverside toe of the Mississippi River Levee.”

Later in 1962 appellee Stevenson and his then partner entered into a lease agreement with Chicago Mill and Lumber Company whereby they were given the right to graze cattle on the levee and in return agreed to erect a fence east of the levee along the timber line of the lessor’s property to contain the cattle. The agreement recites that the lessor is the owner of lands in Sections 3,10,14 and 15, Township 16 South, Range 1 West, “lying East of the center line of the Southeast Arkansas Levee;”. In 1965 appellant succeeded to the title of Chicago Mill and Lumber Company. In 1966 appellee Stevenson had a survey made to establish the eastern boundary of the Southeast Arkansas Levee District property in Township 16 South, Range 1 West. Appellee never built the fence. In 1967 a hunting club constructed a fence at the approximate location of the timber line where it was agreed that appellee would construct a fence. This controversy arose when appellee Coleman, Stevenson’s business partner, entered upon the land west of the eastern boundary of the levee district with a bulldozer and began clearing the right-of-way on the marked and flagged line of the surveyor preparatory to the construction of a fence. In the process some of appellant’s property was being damaged.

This resulted in appellant seeking an injunction. Appellee Stevenson then asked for an injunction and that title to the disputed lands east of the levee be quieted and confirmed in him. During the trial the court admitted proof by appellees that a substantial acreage east of the levee was owned by the Southeast Arkansas Levee District and not the appellant. The court found that as to the lands the appellant claimed, he was entitled to his requested permanent injunction against appellees except that portion owned by the Southeast Arkansas Levee District; dismissed appellee Stevenson’s petition for an injunction and the quieting of title in him; and refused to enjoin the appellees from entering upon the lands found to belong to the levee district.

For reversal appellant contends that, contrary to the chancellor’s finding, he is entitled to enjoin the appellees from entering upon the disputed lands east of the levee and up to the center line of the levee even though the title is in the 'Southeast Arkansas Levee District. Appellant argues that the trial court erred “in allowing appellees to attack Hazel Townsend’s title by attempting to prove title in Southeast Arkansas Levee District, since the parties admittedly are both claiming solely under her.” Several cases in support of this contention are cited which, in effect, hold that in an action of ejectment or to quiet title where both parties deraign title from the same person or a common source, each party is estopped to deny the validity of the title of such third person and, as between the grantees, the one having the better title from the common source will prevail. Typical cases cited are Rhodes et al v. Earl Gill Enterprises, Inc., 245 Ark. 279, 431 S. W. 2d 846 (1968), and Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628 (1955). Therefore, since the deed to appellant’s predecessor, Chicago Mill and Lumber Company, was dated and recorded more than a year prior to the date of appellee’s deed, appellant submits that he has the superior title to the lands in issue. It is asserted that these cases represent a relaxation or exception to the well-known rule thát a plaintiff must prevail upon the strength of his own title and not the weakness of the defendant’s title.

However, we do not construe the cases relied upon by appellant as being controlling in the case at bar. Here appellant seeks to prevail by an injunction proceeding. Further, an obvious distinction in the ease at bar from those cited by appellant is the fact that this injunction proceeding affects land owned in fee simple by a public agency, the levee district. We are persuaded by the finding and logic of the trial court that:

“The lands of the Southeast Arkansas Levee District are public lands owned by the public. The district is entitled to possession of these lands against all persons, but when this possession is not being exercised against the public by the district, the public, or any member thereof, is entitled to use them, but none to the exclusion of others, except by authority of said agency. The agency has not granted to Zunamon [appellant] any rights to the use of said lands which is not exercisable by any member of the public.”

In support of this reasoning the following rules of law with reference to the interest necessary to support the issuance of an injunction are enunciated in 42 Am. Jur. 2d, Injunctions, § 27, p. 762. There it is said:

“An injunction will issue only at the instance of a suitor who has sufficient interest or title in the right or property sought to be protected. * # * It is always a ground for denying injunction that the party seeking it has insufficient title or interest to sustain it, and no claim to the ultimate relief sought —in other words, that he shows no equity. * * *
The complainant’s right or title, moreover, must be clear and unquestioned, for equity, as a rule, will not take cognizance of suits to establish title, and will not lend its preventive aid by injunction where the complainant’s title or right is doubtful or disputed. The complainant must stand on the strength of his own right or title, rather than on the weakness of that claimed by his adversary.”

An injunction is an equitable proceeding designed to protect the one who seeks it from irreparable harm. Certainly it cannot be said in the case at bar that as to the lands owned by a public agency the appellant has any equitable grounds for an injunction to the exclusion of any member of the public, including the appellees.

Appellant asserts that even if evidence of the title in the levee district were admissible, it has not been shown to extend east of the levee district. It is true that the evidence is somewhat deficient. However, we cannot say that the findings of the chancellor are against the preponderance pf the evidence. Nor can we agree with appellant’s contention that appellees, as lessees,, are estopped since they have recognized and attorned to appellant’s title from the center line of the levee eastward by virtue of the 1962 lease agreement between appellee Stevenson and appellant’s predecessor in title. As we have discussed, this is an injunction proceeding and involves lands owned by a public agency.

Appellant raises the question of appellees’ cross-appeal being timely filed. The chancellor’s decree was entered October 23, 1968 and Notice of Appeal, Designation of Record and Bond were filed by appellant on October 28, 1969. Appellees’ Notice of Cross-Appeal was filed November 12, or fifteen days after the filing of the Notice of Appeal. Appellant contends that according to Ark. Stat. Ann. § 27-2106.1 (Repl. 1962) Notice of Cross-Appeal must be filed within 10 days after the Notice of Appeal is served. Appellant cites Robertson v. Phillips, 240 Ark. 221, 398 S. W. 2d 889 (1966) in support of his contention. In the recent case of Brown v. Maryland Casualty Co., 245 Ark. 70, 431 S. W. 2d 258 (1968) we said that the 1957 legislation amending this section extended “the time for filing a second or subsequent appeal, whether direct or cross, for a period of ten days after the service of notice of the first appeal,” however, that in no event would a litigant’s time for filing notice of appeal, direct or cross, be less than the thirty days allowed by the statute. Therefore, appellant’s argument has no merit.

On cross-appeal it is contended by appellee Stevenson that the chancellor erred in denying his claim of title to the lands in Section 2 and “restraining appellee from entering thereon.” The conveyance from Mrs. Townsend to appellee Stevenson in 1962 included “All Fractional Half of Section 2 and all accretions to Northwest fractional quarter of Section 2, and accretions to (Sections 2, * * * as shown on survey of Claude G. Dunn. State Surveyor, made September 15, 1953.” As we have indicated, Mrs. Townsend had previously (1961) conveyed all of her lands east of the levee to appellant’s predecessor in title. It appears that Section 2 is east of the levee. According' to the chancellor, most of the lands in Section 2 are accretions and the record does not reflect that Mrs. Townsend owned any lands in Section 2 except that specifically conveyed to Chicago Mill and Lumber Company, appellant’s predecessor in title. It was stipulated that Mrs. Townsend acquired no property after her 1961 conveyance and that all of the lands involved in this litigation were acquired by her from the estate of her deceased husband. The chancellor found:

“Mrs. Townsend was the owner of lands in Sections 2 and 3 in Township 16 South, Range 1 West, lying east of the Mississippi River levee by virtue of the order allotting her dower in the lands of her deceased husband, O. F. Townsend. She conveyed all the lands in said sections, township and range, east of the levee, acquired by her under the aforementioned order to Chicago Mill and Lumber Company. The deed contained the best description possible, considering the formation of the land, its faulty and. indefinite description, as contained in the order aforementioned. That under said conveyance the Chicago Mill and Lumber Company became the owner of all of Section 2 owned by Mrs. Townsend in Township 16 South, Range 1 West, lying east of the Mississippi River levee, * * * except that part owned by the 'Southeast Arkansas Levee District, as described in Exhibit 11 in the action. * * *
The subsequent conveyance of lands in Sections 2 * * * in Township 16 South, Range 1 West, east of the Mississippi River levee by Mrs. Townsend to Stevenson did not have the effect of conveying any interest in said lands to Stevenson.”

We agree with the chancellor that it was the intention of Mrs. Townsend, who was the common source of title of appellant and appellee Stevenson, to convey to appellant’s predecessor in title (Chicago Mill & Lumber Company) all the land which she owned east of the levee, including all the land she owned in Section 2. This intention is buttressed by the exception (which we have previously cited) in Stevenson’s deed and by the testimony of the attorney who prepared both deeds. In Wood v. Haye, 206 Ark. 892, 175 S. W. 2d 189 (1943), the court said:

“The rule is that, as between the parties to a conveyance, intention will govern if the general description furnishes a sufficient key for identification. ’ ’

In the case at bar, on direct and cross-appeal, we cannot say that the findings of the chancellor are against the preponderance of the evidence. This is especially true in view of the fact that some of the title documents are not abstracted.

Affirmed on direct and cross-appeal.


text:
    William E. GORDON et al v. Velma M. SMITH
    5-4977
    444 S. W. 2d 873
    Opinion delivered September 29, 1969

      Smith, Williams, Friday & Bowen, for appellants.

      Gannaway & Darrow, for appellee.
   Frank Holt, Justice.

The only issue on this appeal is whether a jury verdict for damages is excessive. The appellee was injured in an intersection accident while she was riding as a passenger in the front seat of an automobile driven by her employer, Dr. Fletcher Watson. The Watson vehicle was struck on the passenger side by an automobile being operated by appellant Gordon, an employee of appellant Ward Supply, Incorporated. Dr. Watson and appellee Smith brought separate suits against appellants. The cases were consolidated for trial and resulted in verdicts for both plaintiffs. Appellants appeal only as to the damages awarded to appellee. They contend that the $55,000 jury award to appellee is excessive.

A comparison of jury awards is of scant value in appeals on this issue. The degree of injury is rarely the same and the purchasing value of the dollar is much less than several years ago. On appeal we must study and view the evidence most favorable to the appellee and then determine whether the jury award is so great as to shock the conscience of the court or to demonstrate that the jurors were motivated by passion or prejudice. Ark-La Gas Co. v. Strickland, 238 Ark. 284, 379 S. W. 2d 280 (1964); Fred’s Dollar Store v. Adams, 238 Ark. 468, 382 S. W. 2d 592 (1964); Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647 (1957). With these governing rules of law in mind we review the evidence.

As a result of the collision, appellee was thrown forward, her head hit the right window, her abdomen struck the right armrest, and her right shoulder was caught under the dashboard. Dr. Watson was thrown against her. Appellee was taken directly to a hospital where she was confined for three or four days. A month later she returned to her job and remained with Dr. Watson about seven months or until he permanently closed his office in June 1968. She has not worked since then. According to appellee, she was physically unable to fulfill her routine duties as a registered nurse. She was only able to assist Dr. Watson by being present when he examined women patients and to perform other incidental duties which did not require physical exertion. Dr. Watson corroborated her physical limitations. Since the accident, or for the 13 months preceding the trial, she has suffered from headaches, stiffness in the neck, numbness in three fingers of her right hand and difficulty in raising her right shoulder. She testified that she cannot lift anything and is unable to do normal housework. At the time of the trial appellee was taking physical therapy and there was evidence that these treatments would be required in the future for a period of three to six months as a minimum. Her treatments consisted of head-halter traction to her neck, exercise to her arm, shoulder, hand and back, heat, muscle relaxants, pain medication and rest. According to appellee, her right kidney was dislodged, causing nephroptosis or what is known as a “floating kidney.” She is uncomfortable from what she terms a “'mass” in her right side and the function of her kidney is affected, causing her to get up excessively during the night. ,She stated that she now experiences pain from her kidney and that her right side is tender. Five of her teeth were fractured, four of which had to be crowned and one “smoothed.” She has difficulty dressing herself, combing her hair, writing or using her right arm. She experiences discomfort while working when her head is in a fixed position for any length of time.

There was medical evidence that appellee is suffering from muscle irritability and a decreased range of motion in her neck region, right shoulder and upper right limb; there is a sensory involvement resulting in an impairment of feeling from the top of her head on the right side to her fingers, loss of muscle power and impairment in blood vessel flow; that these injuries are painful and in the future an aching variety of pain is anticipated; that the movement of the right upper limb is restricted because of the decreased range of motion in the right shoulder and that appellee has difficulty in working with her head in a fixed position; that as a result of the orthopedic injuries appellee has a 20 to 25 percent permanent partial disability to the body as a whole with some possibility of improvement.

The appellee is 46 years of age with a stipulated life expectancy of 26 years. She had worked for Dr. Watson for 24 years and at the time of the accident was earning $325 per month. There is evidence of a heavy demand for registered nurses with a starting salary of $400-$450 per month. By trial date, appellee had lost $3,888.36 in earnings. Her medical expenses, including her dental work, totaled $1,732.32.

It must be said there was substantial evidence from which the jury could conclude that appellee’s injuries severely limit her in the performance of her duties as a registered nurse; that she will have difficulty finding employment and she will experience pain and suffering in the future and additional medical expenses. 'Therefore, we are not in a position to say that the amount awarded by the jury, especially in view of the constantly decreasing purchasing power of the dollar, shocks the conscience of the court or demonstrates passion or prejudice on the part of the jurors. Noble McChristian et al v. Tommy Hooten et al, 245 Ark. 1045, 436 S. W. 2d 844 (1969); Lin Mfg. Co. v. Courson, 246 Ark. 5, 436 S. W. 2d 472 (1969); Dyer v. Payne, 246 Ark. 92, 436 S. W. 2d 818 (1969).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    L. A. SULLIVAN Adm’r v. PULASKI COUNTY Arkansas
    5-4982
    445 S. W. 2d 94
    Opinion delivered October 6, 1969

      Alonso D. Camp, for appellant.

      Richard B. Adhisson, Prosecuting Attorney; By; Tames R. Howard, for appellee.
   Carleton Harris, Chief Justice.

This appeal is an effort to persuade this court to extend the rule announced in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45 (rehearing denied on July 15, 1968) to permit suits in tort against counties. On the night of July 24, 1967, Joseph Sullivan was killed on the Woodson Lateral Road, a county public road, in Pulaski County. Death occurred when the Sullivan vehicle left the road on a curve, and plunged into a tree. The administrator of the estate instituted suit against Pulaski County, alleging negligence against the county because of its failure to erect and maintain visible markers, effective warning signs, or luminous reflectors. Other similar allegations of negligence were asserted, and damages were sought in the sum of $100,000.00. The county demurred to the complaint on the basis of county immunity from tort liability, and upon hearing, the trial court sustained such demurrer. From the order so entered, appellant brings this appeal.

While there are probably several reasons why appellant cannot prevail in this litigation, we deem it sufficient to simply call attention to the action of the General Assembly of Arkansas in enacting legislation which became Act 165 of 1969. This act became effective on March 5, 1969, and is entitled:

“AN ACT to Declare It to Be the Public Policy of the State of Arkansas That the State and Its Political Subdivisions Shall Not Be Liable for Tort Under the Laws of the State of Arkansas and to Provide That No Action Shall Be Maintained Therefor; to Require All Political Subdivisions to Carry Liability Insurance On Their Motor Vehicles; to Declare An Emergency; and for Other Purposes.”

Section 1 provides as follows'

“Tt is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.”

Tilia statement of public policy is plain and unambiguous. and leaves no room for doubt.

Of course, we made it clear in Parish v. Pitts, supra that the decision only applied to municipalities, and the liability of other governmental units or political subdivisions was not involved. It is interesting to note that, even if ¡Sullivan’s death had occurred within the city limits, there would have been no cause of action against the City of Little Eock for the reason that the accident and death occurred on July 24, 1967, almost a year before Parish v. Pitts became effective. The opinion in that case definitely stated that, except for the plaintiff, Mrs. Dora Parish, the decision was prospective as to all other causes of action.

Affirmed.

      Section 3 of the act requires that all political subdivisions shall carry liability insurance on all motor vehicles in the minimum amounts prescribed in the “Motor Vehicle Safety Responsibility Act.”

      This court said: “We declare the rule of liability to be applicable to this case and all other causes of action arising after this decision becomes final. This serves, in keeping with our system of the private enforcement of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given to this Court the opportunity to rid the body of our law of this unjust rule. The impact of retroactive application on the present defendant is not likely to create any major crisis. Being prospective as to all other causes of action the municipalities are given time in which to procure insurance and take measures to protect themselves in suits thereafter arising.”


author: Carretón Harris, Chief Justice.

text:
    Michael D. CHANDLER v. PULASKI COUNTY Arkansas
    5-5065
    445 S. W. 2d 96
    Opinion delivered October 6, 1969

      Ben E. Price, for appellant.

      Richard B. Adkisson, Prosecuting Attorney; By: James R. Howard, for appellée.
   Carretón Harris, Chief Justice.

This appeal is an effort to persuade this court to extend the rule announced in Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45 (Rehearing denied on July 15, 1968), to permit suits in tort against counties. On the night of October 4, 1967, Michael D. Chandler, appellant herein, was a passenger in an automobile being driven to Little Rock Air Force Base from Little Rock by an out-of-state resident. After proceeding through Jacksonville, the driver turned left onto Coffelt Road, a county public highway in Pulaski County. The driver was unable to make a 90 degree turn, and crashed into a drainage ditch on the westernmost side of old Highway No. 67, Chandler receiving serious injuries. Thereafter, appellant instituted suit against Pulaski County, Arkansas, alleging negligence on the part of the county in failing to erect and maintain effective warning or luminous signs, in failing to post a safe speed limit sign along the road, and in failing to give any warning whatsoever of the existence of the 90 degree turn required of western bound travelers on said road. Pulaski County demurred to the complaint and such demurrer was sustained by the trial court. This appeal questions the correctness of that ruling.

The facts in this case are very similar to those in the case of L. A. Sullivan, Administrator, Estate of Joseph Sullivan, deceased, of Pulaski County, Arkansas, handed down this date, and the reasoning in that opinion applies here with equal force. There, we point out that the General Assembly of 1969 enacted legislation which became Act 165, the legislation declaring the public policy of the (State of Arkansas to be “that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees. ’ ’

Affirmed.


author: George Bose Smith, Justice.

text:
    HARTFORD LIFE INS. CO. v. Sally Ann CATTERSON et al
    5-4993
    445 S. W. 2d 109
    Opinion delivered October 6, 1969

      Williams & Gardner, for appellant.

      Mobley, Bulloch & Harris, for appellees.
   George Bose Smith, Justice.

In 1965 the appellant issued an accident and sickness policy to the appellees’ mother, Becky Wilson Catterson. On March 3, 1966, Mrs. Catterson was committed to the State Hospital for a condition diagnosed as a manic-depressive reaction. The jury may have found from the evidence that Mrs. Catterson learned the next morning that she was to be given electric shock treatments. She at once left the hospital without permission and was missing until her dead body was found nine days later in an isolated wooded area. An autopsy indicated that death resulted from exposure and occurred about three days after she disappeared.

This action was brought by the beneficiaries to recover the accidental death benefit of $10,000. The insurance company sought to avoid liability on the ground that the insured’s death was not within the coverage of the policy and on the additional ground that one of the questions in the written application for the policy was answered falsely. This appeal is from a judgment for the amount of the policy, plus the statutory penalty and a $4,000 attorney’s fee.

First, the insurer contends that there is no substantial evidence to support a finding that the insured’s death was accidental. There were no marks on the body indicative of foul play. The temperature had varied from a low of 24 degrees on March 7 — which was the indicated date of death — to a high of 75 degrees on March 12. The physician who performed the post mortem examination testified that the most likely cause of death was exposure and that he could arrive at no other logical conclusion.

'The contract contained fairly typical language, covering accidental bodily injury which results directly and independently of all other causes in a loss covered by the policy. “Accidental,” as we have often said, means happening by chance, taking place unexpectedly, not according to the usual course of things. Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S. W. 2d 480 (1942).

Death from exposure to cold is not essentially unlike death from heat prostration, which we considered in Continental Cas. Co. v. Bruden, 178 Ark. 683, 11 S. W. 2d 493. 61 A. L. R. 1192 (1928). There the wording of the policy was arguably more restrictive than that now before us. requiring that the injury be effected solely by an external, violent, and purely accidental event. After reviewing the two conflicting lines of authority we adopted the view that death by sunstroke or heat prostration is accidental. There is a parallel division of authority with respect to death from freezing or exposure to cold. See Finley v. Prudential Life & Cas. Ins. Co., 236 Ore. 235, 388 P. 2d 21, 4 A. L. R. 3d 1161 (1963), and the A. L. E. annotation. Consistently with our earlier decision we hold that Mrs. Catterson’s death was permissibly found by the jury to have been accidental.

The appellant also insists that recovery in the case at bar is excluded by a clause which excepts death caused or contributed to by sickness or disease. We have often held, however, that such a clause does not preclude liability when death results from the co-operation of disease and accidental injury. Life & Cas. Ins. Co. of Tenn. v. Jones, 230 Ark. 979, 328 S. W. 2d 118 (1959); Fidelity & Cas. Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (n. s.) 493 (1912). In fact, the beneficiaries’ position in the case at hand is much stronger than that involved in many of our earlier cases, for the jury could have concluded that the insured intelligently and voluntarily left the hospital to avoid the proposed shock treatments. Hence the existence of a proximate causal connection between Mrs. Catterson’s manic-depressive reaction and her death was decidedly a question for the jury.

Alternatively, the appellant asks exemption from liability because Mrs. Catterson falsely stated in the application for the policy that she had not ever been told that she had “epilepsy, dizziness, disease of brain or nervous system, or nervous breakdown.” In fact, M^s. Catterson had been confined to the State Hospital as a manic-depressive for several weeks in 1957, but after her discharge she had apparently been well until the disease again manifested itself after the issuance of the policy sued upon.

We lay aside without discussion the appellant’s citation of some of our older cases, for the point at issue is now covered by the Insurance Code, which provides that misrepresentations shall not prevent a recovery unless fraudulent, or material to the acceptance of the risk or to the hazard, or of such a nature that the insurer would not have issued the policy it did issue if the true facts had been made known to it. Ark. Stat. Ann. § 66-3208 (Repl. 1966).

We examined the new statute at length in Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S. W. 2d 829 (1969), and reached this conclusion: “The burden was on [the insurer] to sustain its contentions that the facts not disclosed were material to the risk assumed by it, or that, it in good faith, would not have issued the policy ” After studying the proof we decided that the chancellor had not erred in holding that the insurance company had failed to sustain its burden of showing that it would not have issued the policy if the truth had been stated in the application. By contrast, in Life & Cas. Ins. Co. of Tenn. v. Smith, 245 Ark. 934, 436 S. W. 2d 97 (1969), we denied recovery on the polic}7 when it was proved that knowledge of the applicant’s true medical history would have kept the company from issuing the policy.

In the ease at bar, which was tried before either of the two opinions just cited had been published, the insurer offered no evidence to prove that the policy would not have been issued if the pertinent question in the application had been answered correctly. We may assume that a correct answer would have led the insurance company to investigate the matter, but there is no testimony showing whether or not the company would have refused to issue the policy because of the applicant’s brief confinement to the State Hospital in 1957. We are forced to conclude that the appellant failed to establish its affirmative defense under the Insurance Code.

It is also argued that the $4,000 attorney’s fee is excessive, but in view of the amount involved and of the appeal to this court we cannot sustain that contention.

Affirmed.


author: George Rose Smith, Justice.

text:
    Leo WALTON and Milford FULLER v. Bob SCOTT, Commissioner of Revenues
    5-5045
    445 S. W. 2d 97
    Opinion delivered October 6, 1969

      Donald J. Adams, Mooney Lwgan and Robert B. Broch'mann, for appellants.

      Lyle Williams, J. Victor Harvey, John F. Gautney, L. Phillip McClendon, Hugh L. Brown, for appellee.

      Henry Ginger and Tom Tanner, for intervenor, Joe Purcell, Attorney General.
   George Rose Smith, Justice.

In September of 1967 the two appellants were discovered to be in possession of a large quantity of stolen property that had been brought to this state from Missouri. See Walton and Fuller v. State, 245 Ark. 84, 431 S. W. 2d 462 (1968). Among the items seized by the investigating officers were 8,940 packages of cigarettes upon which the Arkansas cigarette tax had not been paid. The Commissioner of Revenues brought this action to collect the statutory penalty of $25 a package, or $223,500. Ark. Stat. Ann. § 84-2310 (Repl. 1960). Upon testimony that the officers had examined only one package in each ten-package carton the jury returned a verdict for $22,350. that being one tenth of the amount sued for.

For reversal the appellants contend that the statute is unconstitutional — generally as a denial of due process of law and specifically as a violation of the constitutional prohibition against the imposition of excessive fines. Ark. Const., Art. 2, § 9. The tax was levied at the rate of eight cents a package, or a total of $71.52 upon 894 packages. Counsel insist that the penalty of $22,350 is so disproportionate to the amount of the tax as to be excessive on its face.

The appellants rely principally upon our holding in Beckler Produce Co. v. American Ry. Express Co., 156 Ark. 296, 246 S. W. 1, 26 A. L. R. 1197 (1922). There the statute imposed a penalty of two dollars a day for the express company’s failure to settle a claim for property damage, but it allowed shippers to delay the filing of suit for any length of time within the period of limitations. Beckler waited for two and a half years before seeking to collect a penalty of $1,740.00 for the loss of a shipment worth $48.66. We held that the statute was so oppressive and went so far beyond its legitimate purpose as to be contrary to the due process and equal protection clauses of the constitution.

That case is not sufficiently similar to this one to be controlling. There the penalty was applicable to a business transaction between private persons. The statute allowed the shipper, merely by delay, to build up a penalty claim so completely out of proportion to the amount of the asserted loss as to virtually compel the carrier to compromise the demand regardless of its actual merit. By contrast, here the penalty stems from the State’s effort to collect a lawful tax, the evasion of which is a criminal offense. Ark. Stat. Ann. § 84-2323. The amount of the penalty is fixed by law and cannot be augmented by any maneuvering on the part of the ■State. The tax dodger is given fair warning in advance that a violation of the statute carries a fixed penalty with respect to each untaxed package of cigarettes.

In the Beckler case we based our discussion upon the premise that “in general, the amount of the penalty prescribed is a matter for the Legislature to determine in its discretion, and the courts will not interfere with its discretion ... as long as it keeps within the fair and reasonable scope of its power.” More specifically, we declared in Ex parte Brady, 70 Ark. 376, 68 S. W. 34 (1902), that the imposition of a fine is not a cruel or unusual punishment and that to violate the constitution “the fine imposed must be so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”

It could not be seriously contended that a penalty of $25 for the unlawful possession of one package of untaxed cigarettes is excessive. Whether the penalty should be proportionately increased with each additional package manifestly depends upon complex issues of fact. See Gooch v. Rogers, 193 Ore. 158, 184, 238 P. 2d 274, 285 (1951). To what extent does the maintenance of the state government depend upon tobacco taxes? How much revenue is lost by the importation of untaxed cigarettes, either in large quantities for the purpose of sale or in small quantities by consumers living near the borders of the state? Would a milder penalty prove to be an effective deterrent to tax evasion? What administrative expense is involved in the enforcement of the taxing statute and in the prosecution and conviction of those who viólale it? What has been the experience with respect to the same problem in other states?

We must assume that factual issues such as these were taken up and explored by the legislature as a basis for* its adoption of an appropriate penalty for nonpayment of the tax. In the record before us, however, there is no proof touching upon any of such relevant questions. We are asked to declare as a matter of law, with no knowledge of the facts, that a penalty of $22,350 for the evasion of a $71.52 tax is so excessive as to shock public sentiment and violate the judgment of a reasonable people. We may note, by analogy, that had the appellants stolen even half of $71.52 they might have been convicted of grand larceny and might have been punished by imprisonment for twenty-one years. Ark. Stat. Ann. § 41-3907 (Repl. 1964). Beyond question, reasonable minds may differ about what is or is not an excessive punishment.

Finally, the appellants’ demand that we hold the statute unconstitutional insofar as this case is concerned would draw the judiciary into an area that is best left to the legislature. As we have already said, a penalty of $25 for the unlawful possession of one package of untaxed cigarettes is certainly not unconstitutionally excessive. Apparently no one thought in Thompson v. Holmes, 222 Ark. 233, 258 S. W. 2d 236 (1953), that the penalty there involved — $3,000 for the unlawful possession of 120 untaxed packages — was so severe as to cast doubt upon the validity of the statute. We can find in the constitution no yardstick enabling us to announce with confidence that the penalty is valid when one package is involved, that it Is valid when 120 packages are involved, but that it is not valid when 894 packages are involved. See State v. O’Neil, 58 Vt. 140, 2 Atl. 586 (1886), writ of error dismissed, O’Neill v. Vermont, 144 U. S. 323 (1892). Perhaps a case might arise — especially one raising no issue of criminal intent — when the amount of -the penalty might fairly and reasonably be said to be excessive, but we do not feel justified in reaching that conclusion in the case at bar.

Affirmed.


author: Lyle Brown, Justice.

text:
    ARK. STATE HIGHWAY COMM’N v. Louis CARTER et ux
    5-4988
    445 S. W. 2d 100
    Opinion delivered October 6, 1969

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Wayland A. Parker, for appellees.
   Lyle Brown, Justice.

In an eminent domain proceeding by the Arkansas State Highway Commission, appellant here, a jury awarded $20,000 as just compensation to the landowners, Louis Carter and wife, the appellees. The taking was in fee simple. The sole question on appeal is whether the amount of the verdict is supported by substantial evidence.

Three value witnesses testified for the lanclowners. They were Louis Carter (owner), Glenn West, and Theo Bell, the two last named being real estate brokers in the area. It is not disputed that the three witnesses established the necessary qualifications. With respect to direct examination of those witnesses, they supported their opinions on just compensation by substantial testimony. The real basis asserted for reversal is that cross-examination of those tnesses destroyed the substantiality of the testimony given on direct examination.

Cross-examination of Louis Carter. On direct examination Mr. Carter gave an across-the-board after value of $20,000 to land and improvements. On cross-examination he was asked to assign a separate after value to a 65-acre parcel and to another parcel of fifteen acres. He was unable to fix separate values and stated that he was considering the entire remainder as a whole since he was interested in selling all that remained — “just the whole thing is for sale.” He was questioned about the after value of his home and he said, “Well, I knew it would be reduced way down — oh, six or seven thousand, but still, at the same time, I just wanted to get loose.” Finally, he was asked if he was “just speculating” in arriving at his after value of $20,-000, to which he replied, “I don’t know what you’d call it.”

Cross-examination of Glenn West. It was shown that the witness estimated damage, by the taldng, to five acres in the right-of-way of an existing highway running through a corner of the property; in assessing damages to the home, the witness stated that it would no longer be located on a main road, and that damage is asserted by appellant to be an improper element of compensation. (There was no motion to strike the latter assertion.)

Cross-examination of Theo Bell. The witness admitted that he was not familiar with the fact that the construction plans called for a six-by-six box culvert to be constructed under the highway and connectiiig the landowners’ divided parcels. He was.asked if that fact would make a difference in his appraisal. He conceded the culvert would be of some advantage but he could not say it would actually enhance the sale value of the property.

Before we could reverse this judgment for insubstantiality of evidence we would have to hold that the summarized testimony materially destroyed the reasonable bases for valuations given on direct examination. The most that can be said critically of the evidence elicited on cross-examination is that it tended to weaken the strength of the direct evidence; and that fact is for the jury’s consideration in weighing the witnesses’ testimony. In Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966), it is made clear that evidence elicited on cross-examination must demonstrate that the witness “had no reasonable basis whatever” for his original opinion before the evidence in chief on the same point can be voided.

Finally, it is not insignificant that the jury discounted the testimony of all three of appellees’ value witnesses. Just compensation was estimated by Carter to be $40,000 and by the lower estimate of his two appraisers to be $25,000.

Affirmed.


text:
    Thomas Wallace MIZE v. STATE of Arkansas
    5440
    445 S. W. 2d 73
    Opinion delivered October 6, 1969

      Little & Lawrence, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   John A. Fogleman, Justice.

This is an appeal from the denial of postconviction relief under Criminal Procedure Rule 1. Appellant asserts the following points for reversal:

“1. Petitioner was denied effective assistance of counsel at the post-conviction relief hearing since he was represented during same by an appointed attorney who had a conflict of interest prejudicial to petitioner’s cause.
2. Petitioner was denied the right to have a witness present who could have supported petitioner’s contentions for post-conviction relief in that the Circuit Court of Benton County, Arkansas, erroneously refused to allow Gene Leland McGahan to attend the hearing as a witness for petitioner.
3. Petitioner’s plea of guilty was erroneously entered and should be set aside for the reason that he did not understand its meaning and effect and it was not entered freely and voluntarily but yras unlawfully induced and coerced by threat of prosecution of another.”

Appellant, along with Gene Leland McGahan and Pauline McGahan Davis, was charged with two counts of forgery and uttering. He was also charged, along with Gene Leland McGahan with two counts of attempt to escape from the Benton County jail. J. L. Hendren was employed by appellant and his codefendants to represent them. On December 10, 1968, appellant entered a plea of not guilty on the charges of forgery and uttering but changed his pleas to guilty on January 29, 1969, when he also pleaded guilty to the escape charges. He was originally given a sentence of not less than five years nor more than ten years on the first two charges and a three-year sentence on the escape charges, to run concurrently with the other sentences. On February 20, 1969, the sentences on the charges of forgery and uttering were corrected to a minimum sentence in each case of three years and four months in compliance with Act 50 of 1968.

When the present petition was filed, the circuit judge appointed the attorney previously retained by appellant to represent him, in spite of this attorney’s expressed conviction that his interests conflicted with those of appellant.

Appellant testified that he recalled being questioned by the trial judge in connection with his pleas of guilty and his answers to these questions along with the court’s explanation that the pleas would not be accepted unless they were changed because of his guilt. He also recalled discussing these pleas with his attorney, and he admitted that he was advised of his right to a jury trial and that he should enter a plea of not guilty, if he so desired. He stated, however, that his pleas of guilty were induced by a threat that if he did not do so, his girl friend and codefendant, Pauline Davis, who had admitted her guilt, would not receive a suspended sentence, but would be sentenced and would lose her two small children. Mize testified that he had told his attorney he would rather be tried on each and every charge, until Pauline Davis received a phone call from her husband advising that if she were not “cut loose” her children would be taken from her, and she advised him that the prosecuting attorney had also told her this. Mize then told his attorney that he wanted to change his pleas. The attorney advised him that he had a right to do so if he wished, but also advised at all times that he had a right to continue his pleas of not guilty if he wished. He stated that the attorney did not, in any way, force him to plead guilty, or advise him that it would be in his best interest to do so, but left his plea up to him. He recalled that Hendren told him it was up to him if he wanted to plead guilty in order “to be a Sir Galahad for Pauline.”

The pleas of guilty were then entered. The trial court appropriately caused a record to be made of these proceedings. Hendren then stated that he had outlined to all three defendants their rights and possibilities with respect to a jury trial, requested permission to enter pleas of guilty and related that negotiations with the prosecuting attorney had resulted in recommendation of the sentences later imposed for appellant and McG-ahan and a suspended sentence of three years for Mrs. Davis. The attorney advised the court that restitution had been made to those who had suffered losses because of the forgery and uttering of the money orders. The trial judge questioned each of these defendants extensively concerning the pleas then entered. He ascertained that appellant had been previously convicted of larceny on a plea of guilty. When asked if he knew what the pleading was and the nature of it, Mize answered in the affirmative. He also stated “I did” when the circuit judge asked if he had forged and uttered an instrument or check purportedly signed by someone else. The judge, after having given an explanation in detail, ascertained that each of the accused understood the sentences negotiated and their effect. Thereafter, Mize asked no questions about the plea, the charge, the sentence or disposition of the case even though the court gave him an opportunity to do so. He did ask about the release of some money being held pending completion of restitution. Judge Enfield made a very firm statement to these defendants that the only reason he was accepting the recommendation as to sentence, in view of their records, was because of the restitution made.

Because we feel that an attorney might well be placed in an untenable position when relief such as this is sought on the grounds alleged, it might have been appropriate that he be relieved and other counsel appointed under similar circumstances. While it did not become necessary in this proceeding, Hendren might well have been called as a witness. If this had occurred, all parties would have been placed in a perplexing situation, Still, we find that appellant had effective assistance of counsel. An examination of the record reveals that Hendren vigorously and capably conducted the presentation of evidence by and on behalf of Mize, the cross-examination of state witnesses, the making of objections, argument of the case below and briefing on appeal. Appellant expressed his satisfaction with the appointment of Hendren to represent him in the post-conviction hearing. He testified that this attorney advised him that he could continue his pleas of not guilty, and did not advise him that it was in his best interest to plead guilty. He added that the only way that the attorney influenced him was in accepting the sentence negotiated. He recalled stating to Hendren on the day of his sentencing that he would plead not guilty if he had to pay $457 in court costs. The attorney, according to Mize, agreed that this was ridiculous and persuaded the circuit judge to direct a reduction to $112.60. Thus, there is no merit in Point 1.

Likewise, we find no merit in Point 2. There was no indication in appellant’s petition or by any other means that he desired the attendance of McGahan to attend the hearing as a witness. The record disclosed that appellant’s attorney advised the court promptly when he learned of his client’s desire to present Mc-Gahan as a witness in support of the petition. While the circuit judge refused to continue the hearing because of Mize’s failure to make an earlier request for the attendance of McGahan, the court admitted into evidence an unsworn statement made by the proposed witness which had been attached to the petition. In this statement McGahan asserted that neither Mize nor Pauline Davis had any part in his passing the forged money orders and that all three were “pressured” into entering pleas of guilty by being told that Mrs. Davis would lose her two little girls if they did not do so. It was not suggested either in the trial court or in this court that McGahan would have testified to any other fact, if he were present. Under these circumstances, appellant was not prejudiced by the absence of McGahan, even if the trial court could be said to have acted erroneously in denying the request because of appellant’s lack of diligence in the matter.

In addition to the matters hereinabove set out, Mize testified that he told Hendren he was going to tell the judge that he was pleading guilty only on account of Pauline Davis and her children and not because he was guilty. According to him, Hendren said that the judge would not accept such a plea and that Mrs. Davis would remain in jail. Thereafter, the pleas of guilty were entered under the circumstances set out above. The trial judge expressly found: that he did not believe petitioner’s testimony on the issue of voluntariness of his change of pleas; that he voluntarily, knowingly and unde rstandingly entered his pleas of guilty; and that, after advice of counsel and of the court concerning jury trial, he voluntarily waived such a trial. We find ample support for these findings. In so doing, we consider appellant’s testimony that he would not have gone through with his pleas of guilty if the court costs had not been reduced by $300 to be of some significance.

In view of the failure of the trial judge to believe petitioner’s testimony, we find the decision in Cullum v. State, 244 Ark. 290, 424 S. W. 2d 523, relied upon by appellant, not applicable, even if it might otherwise have been. In that case the trial court accepted at face value the positive and undenied testimony by the petitioner there relating to promises made to him by the arresting officer and prosecuting attorney as inducement to the plea of guilty. In this case, there was no direct evidence that the threat as to Pauline Davis was actually made by the prosecuting attorney. Pauline Davis was apparently the only source of appellant’s information on this subject.

We do not overlook evidence relating to alleged threats of physical violence to Mize by the sheriff and his deputy, but it is clear that these threats, if made, were connected with efforts of Mize and his codefendant to escape and not with the pleas made or to be made in the eases.

The judgment is affirmed.

      It appears that Mize was brought to the Benton County jail in the late evening of the day preceding the hearing and that he first conferred with his attorney about 8:20 p.m. Hendren stated that he was first advised of Mize’s desire to have the attendance of McGahan on the morning of the hearing.


author: J. Feed Jones, Justice.

text:
    Courdia Ailene ASHLEY v. G. Thomas EISELE
    5-4928
    445 S. W. 2d 76
    Opinion delivered October 6, 1969

      Guy H. Jones and Phil Stratton, for appellant.

      Lester & SJwlts, for appellee.
   J. Feed Jones, Justice.

This appeal by Mrs. Ashley is from a summary judgment in favor of her former attorney, G. Thomas Eisele, and grows out of litigation commenced in the Pulaski County Circuit Court wherein Mrs. Ashley alleged excessive attorney’s fee and damage because of wrong legal advice intentionally given her by Mr. Eisele in connection with her property rights in a divorce action.

The divorce action out of which the present litigation arose was concluded in 1964, and the pertinent background facts of that litigation are these: In 1962, Mrs. Ashley employed Mr. Eisele to represent .her in a divorce action against her husband. Mr. Eisele filed a petition in chancery court for Mrs. Ashley alleging general indignities as grounds for divorce and praying for the custody of, the four minor children; for a determination and award of property rights; for an award of attorney’s fee and court costs. Immediately after the petition was filed, Mrs. Ashley also engaged the services of attorney H. B. Stubblefield, who associated with Mr. Eisele and they both represented Mrs. Ashley throughout the litigation. Mr. Ashley counterclaimed for a divorce and alleged adultery as one of his grounds.

A property settlement and separation agreement was executed by Mr. and Mrs. Ashley on February 17, 1964, and was approved by the chancellor in a divorce decree entered on Mrs. Ashley’s complaint on February 19, 1964. Under the agreement and decree, Mrs. Ashley was paid $15,000 in cash, together with real and personal property valued by her attorneys at $15,000 but valued by Mrs. Ashley at less than half that amount, and Mrs. Ashley was awarded custody of their four minor children. Mrs. Ashley paid her attorneys $6,000 as attorneys’ fees and an additional fee of $3,000 was awarded against Mr. Ashley.

On January 31, 1968, Mrs. Ashley filed her complaint against Mr. Eisele in the case at bar alleging that she had only recently learned that Mr. Eisele had wrongfully and intentionally advised her as to her property rights in the divorce action; that she was entitled to a property settlement in the amount of $100,000, rather than the $15,000 awarded to her; that she only agreed to accept the $15,000 in property settlement because of the willful, intentional, wrongful and erroneous legal advice given to her by Mr. Eisele while he represented her and while he knew that there was a conflict between her interest and the interests of other parties with whom Eisele became involved. Mrs. Ashley also alleged that the $6,000 fee charged by her attorneys, and paid by her, was unconscionable, exorbitant and excessive. She prayed judgment for $6,000 paid in attorneys’ fees, for $85,000 damages she suffered because of the property settlement and for $25,000 punitive damages. Eisele filed an answer admitting his employment and representation, along with Stubblefield, as alleged in the complaint. He admitted that a written property settlement agreement was entered into between Mr. and Mrs. Ashley and a divorce was granted to Mrs. Ashley. He denied the other allegations.

Interrogatories were directed to, and answered by, Mrs. Ashley. The depositions of Mrs. Ashley, Mr. Ashley and Mrs. Ashley’s sister, Mrs. Earline Keltner, were taken and on August 26, 1968, Eisele filed a motion for summary judgment on the pleadings, depositions, answers to interrogatories, and the affidavit of Eisele in support of his motion. On September 5, 1968, the circuit court entered an order setting Eisele’s motion for hearing on September 9, 1968, and on the date of hearing Mrs. Ashley filed a response to the motion for summary judgment stating that justiciable issues did exist and that Eisele was not entitled to a summary judgment. No counter-affidavits were filed on behalf of Mrs. Ashley, but at the hearing on the motion her attorney offered her oral testimony in lieu of affidavits. The trial court refused to hear Mrs. Ashley’s oral testimony in lieu of affidavits and on this issue the record recites as follows:

“THE COURT:
Mr. Jones, for the purpose of the record*do you have any affidavits or other type of pleadings that you want to file?
MR. JONES:
We could file an affidavit for the plaintiff but we brought the plaintiff in person so that her testimony could be taken. Now, the plaintiff has a sister in the hospital in Memphis in a critical and terminal state and she has been over there and off in Memphis with this ill sister at the time of serving of the notice and filing of the Motion for Summary Judgment and has not been back very long in the county and is actually under emotional strain and duress at this time.
MR. SHULT'S:
For this record this case was filed in February of this year. We served Interrogatories on the plaintiff in March of this year. It took us three and a half months to get these Interrogatories answered. They were only answered when the Court so ordered it. A pre-trial was held on July 29, 1968. Certain things were directed to be done within ten days by the plaintiff. They were not, in fact, done until twenty-three days after that date. As soon as those things were done and all witnesses were listed we prepared and filed our Motion for Summary Judgment. The case has been set for trial since April 2nd of this year. There has been ample time for the plaintiff to take whatever depositions she may have desired to take.
THE COURT:
When is the ease set for trial?
ME. SHULTS:
Sir?
THE COURT:
When is the case set for trial?
MR. SHULTS:
This Thursday, September 12th. It is necessary that the Motion for Summary Judgment be disposed of. It has been pending for more than two weeks and the only response received was that received today. We think the motion is timely filed. The delivery of it having been presented no earlier was no fault at all on the defendant. The defendant presented it as soon as discovery was completed on his part. We ask the Court to rule on it today and we earnestly ask that the motion be granted.
MR. JONES:
Due to the fact that the notice of this hearing, I believe dated August (September) 5th, I believe my letter bears that date that the hearing would be today and I assume that I got that Friday or Saturday. I know that upon receipt of it I attempted to get ahold of Mrs. Ashley. We did not state that the proper time was not complied with — the ten days notice. Our statement was that the notice of the hearing was rather a brief one and for the purpose of preparing any depositions and for that reason we have the plaintiff here in person for the taking of any testimony that the Court feels should be taken under oath rather than by affidavit.
MR. SHULTS:
Her testimony is in the record by deposition which we feel is the only appropriate way.”

The trial court granted Eisele’s motion for summary judgment and Mrs. Ashley relies on the following points for reversal:

“The trial court erred in refusing to allow appellant to testify at hearing on appellee’s motion for summary judgment.
The trial court erred in granting defendant below summary judgment upon a verified complaint alleging willful, deliberate and intentional misconduct on the part of appellee as appellant’s attorney.”

We have examined the entire record and we have had no difficulty at all in arriving at the conclusion that the trial court was correct in finding that there was no justiciable issue presented as to Eisele willfully, intentionally, wrongfully or erroneously giving Mrs. Ashley bad legal advice. We also agree that there was no justiciable issue that Eisele acted in bad faith or misinformed, or misrepresented to Mrs. Ashley her rights under the laws of Arkansas, or that Eisele had any conflict of interests in his representation of Mrs. Ashley. As a matter of fact the record is to the contrary.

Both parties were represented by competent counsel in the divorce action, and it is obvious from the record that the attorneys on both sides were thoroughly familiar with the provision of Ark. Stat. Ann. § 34-1214 (Bepl. 1962), which provides as follows:

“In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband, . . . shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form. . .”

In the light of this statute and with the' issues joined on petition and counter petition, the record is clear that Mrs. Ashley’s attorneys settled down to negotiate with Mr. Ashley’s attorneys for an agreed property settlement on the best terms possible. They threatened to prove assets and income far in excess of that reported for income tax purposes and Mr. Ashley’s attorneys countered all proposals with the assurance that Mr. Ashley had ample grounds for a divorce on his counterclaim, and that thev would have no difficulty in presenting proof which would entitle him to a divorce.

The attorneys were still deadlocked in their negotiations on January 5, 1967, when Mrs. Ashley, according to her own deposition, was arrested, along with a nineteen year old young man, while both of them were naked in the young man’s automobile parked on a dead-end road off No. 10 Highway. She contended that she had been drugged and “framed” and there are no indications that her attorneys did not believe her. There are indications, however, that her attorneys were not so sure that the chancellor would believe her, for on January 30, 1964, Mr. Eisele wrote to Mrs. Ashley, in part, as follows:

“Mr. Stubblefield and I have reviewed your case thoroughly, and we have concluded that you should settle same prior to the giving of your deposition at the best offer obtainable. By this we mean we should even accept the offer previously made if we can do no better. In other words, our advice i& that we should take what we can get because we feel that it is very likely, in fact almost certain, that if the case is tried, you will get nothing either by way of alimony or property from Mr. Ashley. By this we do not mean to suggest that your fault is greater than that of your husband, but rather the circumstances and the anticipated testimony simply weigh too heavily against you. * * * ”

Mrs. Ashley was represented by two attorneys, but Mr. Eisele is the only defendant in this lawsuit. Both attorneys advised Mrs. Ashley as to her rights under the laws of Arkansas, and it is obvious that her property rights under the record in this case, would depend upon whether she was granted a divorce on her alleged grounds or Mr. Ashley was granted a divorce on his own allegations. From the uncontroverted facts in the record before us, including Mrs. Ashley’s own admissions on interrogatories and her testimony on deposition, it would appear that Mrs. Ashley’s attorneys may have given her very good advice in the property settlement they recommended, and certainly there is no evidence that Mr. Eisele gave her bad advivce, or that she sustained any damage by following the advice given.

In Mr. Eisele’s affidavit for summary judgment he stated that he had not even met the parties involved in the alleged conflict of interest at the time his representation of Mrs. Ashley was concluded and this statement is not controverted.

The alleged excessiveness of the attorneys ’ fee gives us more difficulty. The complaint alleges that the attorneys’ fee of $6,000 was excessive and unconscionable. Mrs. Ashley testified on her deposition as follows:

“Q. Do you recall whether at the time you employed Mr. Eisele you had any discussion with him about fees to be charged in this case?
A. Yes, I do.
Q. What was that discussion?
A. That the Court would determine the fee.
Q. Did he tell you at that time that he would charge you an additional fee other than that which the Court allowed?
A. No, not at that time.
Q. At the time you employed Mr. Stubblefield did you discuss the fee arrangement with him?
A. Yes.
Q. What did—
A. With Mr. Eisele and Mr. Stubblefield.
Q. What did they advise you?
A. The fee would be thirty percent of the property other than the home and child support and then, of course, whatever the Court awarded that would he subtracted from what I would pay them.
Q. Were you agreeable with that fee arrangement?
A. I didn’t have much choice.
# # #
Q. I ask you again, did you agree at that time on the fee arrangement?
A. Yes, I did.
Q. What was the total fee paid to Mr. Eisele and Mr. Stubblefield in this case?
A. $9,000.00.
Q. How did they arrive at that figure?
A. I haven’t the slightest idea.
Q. How much of the fee was paid by Mr. Ashley?
A. $3,000.00.
Q. Was the balance of the $6,000.00 paid by you?
A. Yes.
Q. You have alleged in the complaint that the fee was exorbitant how did you arrive at that conclusion?
A. Mr. Lester, I was in a state of shock for months, and I think anyone would know that I was charged a fee in excess of what it should have been.”

This testimony is not controverted but is more or less confirmed bv Mr. Eisele in his affidavit for summary judgment, as follows:

“In one of the first meetings between Mrs. Ashley, Mr. Stubblefield and me, Mr. Stubblefield pointed out that we could not be expected to represent her solely upon the basis of such legal fees as might be awarded by the court. We pointed out that in a proceeding of this type more work was required of the attorneys, when compared to the results anticipated, than in other types of legal proceedings. At that time Mrs. Ashley urged us to seek a quick settlement, but Mr. Stubblefield pointed out that if this failed and if the case then required the effort which we expected, Mrs. Ashley would be expected to pay a fee representing somewhere between one-fourth and one-third of her recovery, although she would be given credit for any fee allowed by the court.”

Mr. Stubblefield was one of Mrs. Ashley’s attorneys and shared in charging the fee as well as collecting it. He is not a party to this lawsuit, but his affidavit that the fee was reasonable does not take that item out of the realm of justiciable controversy.

The appellee argues on appeal that the statute of limitations, Ark. Stat. Ann. § 37-206 (Eepl. 1962), bars the causes of. action set out in the complaint and that summary judgment is appropriate under our decision in Norwood v. Allen, 240 Ark. 232, 398 S. W. 2d 684. The statute of limitations was specifically pleaded in Nor-wood and was not pleaded at all in the case at bar.

In the early case of Western Union Telegraph Co. v. State, 82 Ark. 309, 101 S. W. 748, this court said:

“The general rule established by the decisions of this and most other courts is that in all civil actions the statute must be pleaded in some way, otherwise it is deemed to have been waived as a defense. The Encyclopedia of Pleading and Practice (vol. 13, p. 282) states the rule of practice to be that in actions to recover penalties either a plea of the general issue or a special plea of the statute of limitations is sufficient to render it available as a defense. This statement is sustained by adjudged cases. Moore v. Smith, 5 Me. 490; Frohock v. Pattee, 38 Me. 103; Pike v. Jenkins, 12 N. H. 255; Gebhart v. Adams, 23 Ill. 397.”

The statute of limitations is not mentioned in the pleadings in the case at bar, but was only first mentioned in Eisele’s memorandum in support of motion for summary judgment. It appears from that memorandum that if the statute of limitations was relied on at all, it was expressly waived as to part of the cause of action in the following language:

“The defendant does not have to and does not rely on the statute of limitations in regard to this claim of deliberate giving of wrong advice.”

The nearest Mr. Eisele comes to pleading the statute of limitations as to the claim on attorneys’ fee is also contained in his memorandum in support of motion for summary judgment in the following language:

“The cause of action asking for a recovery by Mrs. Ashley of the legal fees she paid to Mr. Eisele and Mr. Stubblefield was filed almost four years after the payment was made and the employment of Messrs. Stubblefield and Eisele terminated. This cause of action, based on either a contract or unjust enrichment theory, was filed more than three years after it accrued and is therefore barred by Ark. Stats. 37-206. Summary judgment for the defendant on this cause is therefore appropriate and just. Norwood v. Allen, 240 Ark. 232, 398 S. W. 2d 684.”

It would appear from the face of the record that the statute of limitations might have been a good defense had it been pleaded and nothing offered in the way of evidence that the statute had been tolled or its operation suspended. If Eisele did not rely on the statute of limitations, a justiciable issue was presented on the attorney fee issue. If the statute was relied on, it was not pleaded and Mrs. Ashley had a right to assume that it was waived. If the statute had been pleaded and relied on in support of a motion for summary judgment, then Mrs. Ashley would have had a right to plead in controversion any facts or circumstances which might have tolled the statute of limitations.

The appellant poses two questions under her first point:
“May a party offer testimony at a hearing on a motion for summary judgment in lieu of a counter-affidavit?
Under the facts in this case was it an abuse of discretion by the trial court to refuse to allow Appellant to testify in opposition to a motion for summary judgment in lieu of counter-affidavits?”

We do not answer the first question as a hard and fast rule of law to be applied in all cases, but we answer the second question in the negative and that also disposes of the first question under the facts in this case. Our summary judgment statute, Ark. Stat. Ann. §§ 29-201 — 29-211 (Repl. 1962), is an adoption of federal rule of civil procedure, Rule No. 56, and its provisions will not be set out again here. The object of procedure for summary judgment is not to determine an issue, hut to determine whether there is an issue to he tried (Byrnes v. Mutual Life Ins. Co. of N. Y., 217 F. 2d 497). One of the objects of the summary judgment is to dispose of litigation on motion when the facts are not disputed and the law can be applied to them, thus avoiding the expense and time of hearing witnesses at a formal trial. Consequently, to permit oral testimony in lieu of the more convenient affidavit would tend to defeat one of the purposes of summary judgment.

The trial court did not abuse its discretion in refusing to hear the testimony of Mrs. Ashley in lieu of her affidavit, because Mrs. Ashley had. already verified her complaint, answered interrogatories and given her deposition under oath. All this was in the record and was the basis for the motion in the first place.

In 49 C. J. S., § 225, beginning on page 420 is found the following:

“The general requirements of an affidavit filed in opposition to a motion for summary judgment are no different from those necessary in support of a summary judgment. * * *”

In MacLean v. Parkwood, 247 F. Supp. 188, the court did permit oral testimony in lieu of affidavit- in support of a motion for summary judgment, but in doing so the court said:

“Parkwood attached certain depositions to- its motion and at the hearing offered testimony of witnesses and documentary evidence tending to show ownership- of the land in question. The Court permitted Parkwood’s counsel to proceed in this manner, in the interest of saving time and on the basis that testimony is as reliable as affidavits. However, the Court desires to note at this time that it is preferable on summary judgment motions to proceed by way of affidavit.. The summary judgment procedure is not to be used as preliminary trial, or demonstration of ‘conclusive proof’ of certain facts. Bather it is a mechanism for showing that as to certain facts there is no genuine dispute and that on these facts the moving party is entitled to judgment as a matter of law. The Court’s role in summary judgment proceedings is not to resolve issues of fact, but merely to pinpoint those facts which are not at issue. Presentation of affidavits, rather than testimony, would have permitted the Court to perform its task more efficiently.”

Mrs. Ashley was not required to file affidavits at all under the statute and it was not her failure to do so that entitled Eisele to the summary judgment. It was the lack of a justiciable issue on the facts, including those established by the affidavits that were filed that entitled Eisele to the summary judgment. The only effect of Mrs. Ashley’s failure to file counter-affidavits was to leave the facts set out in Mr. Eisele’s affidavit uncontroverted, and to be accepted as true, for the purposes of his motion.

The office of counter-affidavits in summary judgment proceeding has been recited in many cases as set out in the annotations in U. S. C. A., Title 28. Rule 56, p. 366, some of which are as follows:

“Failure of opposing party to file counter-affidavits does not necessarily mean that party moving for summary judgment is entitled to judgment. Rohlfing v. Cat’s Paw Rubber Co., D. C. Ill. 1952, 17 F. R. D. 426. Failure of resisting party on motion for summary judgment to file counter affidavits does not entitle movant to summary judgment if there otherwise exists in the record an issue of material fact to be tried. Dulansky v. Iowa-Illinois Gas & Elec. Co., D. C. Iowa 1950, 10 F. R. D. 566.
If no counter affidavits are filed in resistance to a motion for summary judgment, the facts contained in affidavit in support of such motion must be taken as true. Id.
On defendants’ motion for summary judgment, in absence of counter affidavits denying facts in defendants’ affidavits, court was required to accept such facts as undisputed and true. Seward v. Nissen, D. C. Del. 1942, 2 F. R. D. 545.
On defendant’s motion for summary judgment in unfair competition case, claim that plaintiffs were not given enough time to gather and submit affidavits was properly denied in trial court’s discretion, where plaintiffs had reasonably full opportunity to produce affidavits and the further affidavits sought were merely cumulative. California Apparel Creators v. Wieder of Cal., C. C. A. N. Y. 1947, 162 F. 2d 893, 174 A. L. R. 481, certiorari denied 68 S. Ct. 156, 332 U. S. 816, 92 L. Ed. 393. Where averments of complaint were refuted by plaintiff’s own deposition, no issue as to any material fact remained and summary judgment was properly granted. Bennett v. Flanigon, C. A. Ill. 1955, 220 F. 2d 799.
Party opposing motion for summary judgment must be diligent in countering motion and mere general allegations which do not reveal detailed and precise facts will not prevent award of summary judgment. Liberty Leasing Co. v. Hillsum Sales Corp.. C. A. Fla. 1967, 380 F. 2d 1013.
()nly facts which are such as to be admissible in evidence, facts based on personal knowledge, may be set forth in affidavit in opposition to motion for summary judgment. Feldman v. Birger, D. C. Mass. 1962, 205 F. Supp. 87.”

It is true, as argued by Mrs. Ashley under her second point, that her verified complaint alleges that Mr. Eisele willfully, intentionally and deliberately gave erroneous legal advice to Mrs. Ashley, but this allegation is of little assistance to her on motion for summary judgment for the simple reason that facts upon which the allegation is predicated and as brought out and established by answers to interrogatories, depositions, and affidavits, are not in dispute. They simply do not sustain the allegation that the legal advice given Mrs. Ashley was erroneous or that Mrs. Ashley suffered any damages because she acted upon it.

The summary judgment of the trial court is affirmed except as it relates to the alleged excessiveness of the attorneys’ fee. This cause is remanded to the trial court for further proceedings on that issue consistent with this opinion. It may well be that the issue can be determined upon the basis of the defense of limitations if it be found that this defense has not been waived or that it was not tolled during the period prior to the filing of this action. If not waived, Mrs. Ashley should be given an opportunity to show facts which would toll the statute.

Affirmed in part and remanded.

Byrd, J., disqualified.

Holt. J., not participating.