author: J. Feud Jones, Justice.

text:
    Richard JUDY v. M. C. McDANIEL et ux and Duil LANE
    5-4995
    445 S. W. 2d 722
    Opinion delivered October 20, 1969

      Putman, Davis & Bassett, for appellant.

      Wade, McAllister & Wade, for appellees.
   J. Feud Jones, Justice.

Mr. and Mrs. McDaniel sued Richard Judy in the Washington County Circuit Court for personal injuries and property damages growing out of an automobile collision. Duil Lane was made a defendant by cross action filed by Judy. A jury verdict resulted in a judgment for Mr. McDaniel against Judy in the total amount of $6,262.13, $500 of which was for property damage to the McDaniel automobile. Judy has appealed and relies upon the following points for reversal :

“The trial court committed prejudicial error in permitting continued examination of Officer R. D. Arnold concerning an intoximeter test and the amount of alcohol allegedly consumed by appellant.
The trial court committed prejudicial error in permitting examination of appellant relative to prior arrests and convictions.
Remarks made by the trial Judge in the presence of the jury constituted a comment on the evidence which prejudiced appellant.
The trial court erred in admitting into evidence repair estimates on plaintiff’s vehicle.”

The collision occurred in this manner: McDaniel was driving his automobile on Highway 16 in Fayetteville and Lane was driving his automobile in the same direction in front of the McDaniel vehicle. Judy was driving in the opposite direction meeting the Lane and McDaniel automobiles. Lane made a left turn from the highway to enter a side street, and in doing so he had Ms automobile across the traffic lane Judy was traveling as Judy approached over a hill. Seeing the Lane automobile across his lane of travel, Judy drove to his left to avoid the Lane automobile, and collided with the McDaniel automobile. McDaniel was injured and his automobile was damaged.

Appellant’s first point:

We are unable to agree with Judy that the trial court committed prejudicial error in permitting continued examination of Officer B. D. Arnold concerning the intoximeter test and the amount of alcohol allegedly consumed by Judy. The case of Wilson v. Coston, 239 Ark. 515, 390 S. W. 2d 445, cited in support of Judy’s contention, is not in point. In Wilson the trial court simply gave, as an instruction to a jury in a civil case, Ark. Stat. Ann. § 75-1031.1 (Bepl. 1957). This statute provides for chemical analysis of body fluids in criminal prosecutions for driving under the influence of alcohol and fixes presumption of guilt on chemical content ratings. No presumption of driving under the influence attended the testimony in the case at bar. Officer Arnold investigated the collision and before he was asked concerning the intoximeter test, he had already testified that he could smell alcohol on Judy when he talked to him at the scene of the accident; that from the way Judy handled himself and walked and talked he could tell that Judy had “a little something to drink. ’ ’ Officer Arnold testified that he was of the opinion that Judy’s faculties were impaired.

The question on the intoximeter test was first asked on direct examination- and was objected to. The objection was sustained and the jury admonished to disregard it. Judy’s counsel then followed up the question on cross-examination, and we cannot say to his disadvantage, by showing that the test only registered .12, which was not high enough to justify an arrest for driving under the influence of alcohol. This -testimony relative to the intoximeter test tended to rebut the officer’s prior testimony.

On cross-examination by Lane’s attorney, the officer testified that Mr. Judy admitted that he had been drinking beer. He testified that a .12 registration on the intoximeter test would, in his opinion, indicate a consumption of about a “six-pack” of beer. In response to a motion for a mistrial upon the admission of this testimony, the trial court said:

“It may be his opinion but I am going to ask the jury to disregard that statement because I don’t think he’s given enough background to what might well be a basis. There has to be a foundation laid to admit that but I will not grant a mistrial. I will overrule that.”

Mr. Judy testified that he and another person had divided and consumed a “six-pack” of Budweiser beer during the afternoon prior to the collision, but he denied that his faculties were impaired or that his driving was influenced in any way by the consumption of the beer.

We cannot say that the trial court abused his discretion or erred as a matter of law in refusing to grant a mistrial in the light of all the evidence. In the light of Judy’s own testimony that he had consumed half of a six-pack of beer, and in the light of the officer’s testimony that he did not arrest Judy, but would have done so had his meter reading been high enough; we do not consider the officer’s opinion, when considered with all the other evidence, as constituting- such prejudicial error as to call for a reversal. The important point was not whether Judy had consumed three or six cans or bottles of beer or whether the containers were large or small, the important thing on this point was how Judy tolerated the amount of beer he did drink, and the effect, if any, its consumption had on his driving.

Appellant’s second point:

Lane’s attorney attempted to examine Judy on cross-examination as to prior convictions in order to test Ms credibility as a witness. The pertinent portion of the record on this point is as follows:

“Q. Have you ever been arrested and convicted for the commission of any crime of any kind ?
A. Could you explain what you mean by crime! What type!
Q. Well, other than traffic violations? Any kind of — I’m not speaking of traffic violations.
• • «
A. Yes, sir.
Q. How many times?
« # #
Q. And what were the offenses!
A. Disturbing the peace.
Q. And what else?
A. Assault and battery after a dance.
Q. You were convicted on both counts; is that correct?
A. No, sir.
MB. BASSETT: Now, Your Honor, we object.
THE COUBT: The objection is sustained. G-oes only to Ms credibility and involves only one conviction.
MR. BASSETT: I want to make my record. It is calculated to try to prejudice these people against this man and is completely unrelated and uncorrelated to the accident. If it goes to the question of his integrity, of his credibility, whether or not he’s ever, been convicted at sixteen years old — this is a civil case, Your Honor. * * * I ask that the jury be instructed to disregard it.
THE COURT: As far as his testimony goes as to prior convictions, it goes only to his credibility. The charge against him, you will completely disregard it. You have heard his testimony.” (Emphasis supplied).

The law is well settled that the credibility of a witness may not be impeached by an examination as to prior arrests, accusations or indictments relating to prior criminal activity. Stanley v. Aetna Ins. Co., 70 Ark. 107, 66 S. W. 432; Thacker v. Hicks, 213 Ark. 822, 212 S. W. 2d 713; Kansas City Southern Ry. v. Belknap, 80 Ark. 587, 98 S. W. 366. There was really no excuse for the question asked Judy to even contain the word “arrest” unless it was inadvertently included or the question designed to elicit admissions of arrests without convictions. If the trial court had concluded that the question was artfully framed to draw an inadmissible. and prejudicial answer from the witness, the court would have been justified in declaring a mistrial, or in reprimanding the attorney. Apparently the court did not so consider the intent in this case. Where such questions are answered, however, the prejudice comes from the answers and not from the questions. If Judy was prejudiced at all by his answers in the case at bar, we. are of the opinion that the prejudice was removed, and perhaps turned to his advantage, by the admonition of the court and the explanation of appellant’s counsel, we have above emphasized, in his oral objection. We find no prejudicial error in permitting examination of appellant relative to prior. arrests and convictions.

Appellant’s third point:

Police Officer Arnold was asked if he had an opinion, based on experience, statements and investigation, as to the amount and type of alcohol consumed by Judy. The court’s comment in overrulihg the objection to this testimony was almost invited by question, and we think it was unprejudicial in this case.

“Q. Based upon your investigation and the statements which you took, your findings at the scene of the accident, do you have an opinion, based upon your experience, as to how much alcohol may have been consumed and what type?
MR. BASSETT: Just a minute, Mr. Arnold. We object to that, Your Honor.
THE COURT: If he knows.
MR. BASSETT: Why, Your Honor, — .
THE COURT: If he has an expert opinion, strong odor — .
MR. BASSETT: That isn’t what he asked, if Your Honor please. You are telling him what to say now. We object to the Court’s remarks.
THE COURT: I am telling you the reason why I think it ought to he overruled.”

It would appear that the court may have taken the phrase “why, Your Honor,’ to be a question, and was attempting to answer it. Apparently both the attorney and the court interrupted each other before they finished what they had started to say.

Appellant’s fourth point:

Mr. McDaniel testified that he purchased his automobile in August, 1966, and paid approximately $1,050 for it. He testified that the difference in the value of the automobile between the time he purchased it, and March 10, 1967, when the collision occurred, was due only to mileage and average wear. At this point in McDaniel’s testimony estimates were offered in evidence under the following procedure of record:

“Q. Did you attempt to secure repair estimates?
A. Yes, sir.
Q. I show you two documents and ask you if you can identify these?
A. Yes, sir, I can identify them.
Q. Will you please tell us what those are?
A. Ozark Motors, Berryville, Arkansas is an estimate for repairing the damaged vehicle, and Cecil’s Body Shop is an estimate for repairs to the same vehicle.
# # #
A. Four hundred seven, fifty-one, and three seventy-two, seventy-seven.
MB. BASSETT: Comes now the defendant, Judy and objects that the Arkansas law reflecting personal property damages, that the test of the average market value is before and after the accident. We further object on the grounds that improper foundation has been laid, Your Honor, as to the introduction of estimates. There has been no testimony on the part of this man whether the car has been repaired, two, who repaired it, and three, who paid for it. We object for those reasons.
MR. WADE: We will put those in, Your Honor.
THE COURT: He hasn’t offered them yet.
Q. Mr. McDaniel, after you received the two estimates, was the car, in fact, repaired?
A. Yes, sir.
Q. Who repaired it?
A. A body shop in Eureka Springs.
Q. Will you tell us what compensation, if any, you paid for the repair?
A. It was a work trade agreement.
Q. Will you tell us how that was arranged?
A. Yes, sir. My son owed me and in order to clear his debt, he made an agreement with the body shop man to do work for him, between four and five hundred dollars worth of work and he was to do the work and I was to get the car repaired.
Q. So it was simply a swap-out or a trade-out; is that right?
A. Yes, it was.
MR. BASSETT.: We renew our objection, Your Honor.
THE COURT: The test is, the value before and after.
MR. WADE: Well, we just submit that this is some evidence.
THE COUBT: Yes, it is some evidence but it is really before and after.
MR. WADE: We do make tender of Plaintiffs’ Exhibits Nos. 3 and 4 to the testimony of M. C. McDaniel.
MB. BASSETT: Object. .
THE COUBT: I will overrule it. It is just some evidence of before and after. He can state, as the owner, the value before and after.
MB. NIBLOCK: Let the record show my objections, too.
MR. BASSETT: And Mr. McDaniel cannot even testify today, sir, as to what was paid in dollars and cents to have it repaired.
THE COUBT: Well, the value is before and after.
Q. Mr. McDaniel, you testified that the purchase price was $1,050.00 in August of ’66? I will ask you if from your knowledge of the vehicle in question you have any opinion as to the value of the automobile after the collision?
A. After the collision, I took it to the Volkswagen place in Springdale and had them give me an estimate.
THE COUBT: No, just state what, in your opinion, it was worth. Not what they said.
A. A hundred seventy-five dollars.
MR. BASSETT: We also object to that because of the foundation laid.
THE COURT: He said he thought it was worth afterwards. He hasn’t asked what the value was before.
MR. BASSETT: Oh, he asked after?
THE COURT: Yes. $175.00 is what you say it was worth afterwards?
A. Yes, sir.
THE COURT: All right, not who you talked to or anything, what was the value before? Before the wreck, the day before, at the time of the wreck, in your opinion, as owner?
A. Nine fifty.
THE COURT: Nine fifty before and $175.00 after?
A. Yes, sir.
THE COURT: Proceed.
MR. BASSETT: We object, of course, to the Court examining the witness.
THE COURT: Well, I don’t intend to examine him.
MR. BASSETT: I’ll withdraw my objection.”

Under this testimony, we do not agree with appellant’s argument that the repair estimates were the only basis the jury had for making the award of $500 as damage to the McDaniel’s automobile. Mr. McDaniel did testify that he took his automobile to the Volkswagen place in Springdale and obtained an estimate, at this point the record is as follows:

“THE' COURT: No, just state what, in your opinion, it was worth. Not what they said.
A. A hundred seventy-five dollars.”

On cross-examination Mr. McDaniel testified that he went to someone else besides himself in arriving at the after value of $175; that he went to an authorized dealer with it. Mr. McDaniel testified that the value of his automobile before the collision was $950 and that its value after the collision ivas $175. The jury only awarded $500 which amounted to $275 less than Mr. McDaniel testified his property damage amounted to. The court reminded the attorneys throughout the trial that the correct measure of damages was not what it would, or did, cost to repair the automobile, but the difference in the market value of the automobile immediately before and immediately after the collision.

Apparently Judy did not question the items of damage reflected in the repair estimates as having occurred in the collision. The objection went primarily to the fact that the’ automobile had not been repaired under the estimates. After stating the correct rule (with which the trial court agreed) that the measure of damage was the difference in the before and after value of the automobile, the objection then continues:

“MR. BASSETT: * * * We further object on the grounds that improper foundation has been laid, Your Honor, as to the introduction of estimates. There has been no testimony on the part of this man whether the car has been repaired, two, who repaired it, and three, who paid for it. We object for those reasons.”

The amount of the verdict for personal injuries is not questioned in this case and we find nothing in the record that indicates passion or prejudice on the part of the court or jury, or that Judy’s rights were prejudiced by the alleged errors. There is no question that McDaniel’s automobile was damaged in the collision and the extent of the damage is not questioned. There could have been no prejudice in the introduction of the repair estimates because the jury verdict is in excess of either of them. The jury verdict evidently was based upon McDaniel’s opinion as to “before” and “after” values. Even though McDaniel admitted, on cross-examination by the third party defendant, that his opinion was based on information obtained from an automobile dealer, Judy made no objection at the time the testimony was offered and did not ask that the testimony be stricken. He is now in no position to assert the inadmissibility of McDaniels testimony as to the value after the collision.

Finding no reversible error in the record, we conclude that the judgment of the trial court should be, and it hereby is, affirmed.

Affirmed.


source: Caselaw Access Project

author: Conjüey Byrd, Justice.

license: Public Domain

text:
    ARK. STATE HIGHWAY COMM’N v. Vernon E. McMILLAN Estate
    5-5014
    445 S. W. 2d 717
    Opinion delivered October 20, 1969

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

      James C. Cole, for appellees.
   Conjüey Byrd, Justice.

For reversal of this eminent-domain action appellant Arkansas State Highway Commission relies upon the following points:

“I. The trial court erred in refusing to allow appellant’s expert witness, Zack Mashburn, to testify whether he made an investigation to determine the intentions of Holiday Inn, Inc.
“II. The trial court erred in refusing the appellant’s requested Instruction No. 7.”

Under point I the record shows that counsel for appellant asked Mr. Zack Mashburn, an appraiser for the Highway Department, the following question: “Have you made any investigation to determine the present intentions of Holiday Inn?” Upon objection by counsel for appellee, the Vernon E. McMillan Estate, sustained by the trial court, the parties retired to chambers where counsel stated: “Your Honor, I would like to ask the witness if he made an investigation to determine the intentions of Holiday Inn, Inc., as of March 27, 1968, with regard to locating a Holiday Inn at the interchange of Interstate 30 and 270.” The record fails to show what the witness would have said had he been pérmitted to answer the question. The burden is on the one seeking to reverse a judgment of the trial court to show that he was prejudiced by the action of the court. Without a proffer of what the testimony would have been, we are not in a position to say that the action of the trial court was prejudicial. See City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 2d 770 (1913).

The alleged error under point II is the trial court’s refusal to give the following instruction:

“You are instructed that the law.of Arkansas requires a property owner to assess his property at 20% of its true value and you may, therefore, consider the value the landowner has placed on his property for tax purposes as evidence of its true value in arriving at your verdict. While this value is not a controlling factor, it is a factor you may properly consider.”

The only proof on the assessed value of the land is testimony of Mr. Mashburn, as follows:

“Q. Did you in making your appraisal ascertain the value at which this property is assessed for the property tax purposes? •
“A. Yes.
“Q. What was that evaluation?
“A. Eighty dollars.”

Under this state of the record there is no showing what value the landowner placed on his property for tax purposes — i. e., the only showing is the assessed value on the tax hook, which may have been the valuation of the personal representative appointed by the court, see Ark. Stat. Ann. § 84-421 (Repl. 1960), or an adjusted valuation made by the assessor, see Ark. Stat. Ann. § 84-437 (Repl. 1960). Since the instruction is predicated upon facts not in the record it was properly refused by the trial court, See Texas Pipeline Company v. Johnson, 169 Ark. 235, 275 S. W. 329 (1925).

Finding no error, the judgment is affirmed.


author: Frank Holt, Justice.

text:
    Walter CREDIT v. STATE of Arkansas
    5436
    445 S. W. 2d 718
    Opinion delivered October 20, 1969

      Louis W. Rostech, for appellant.

      Joe Pitrcell, Attorney General; Don Langston and Mihe Wilson, Asst. Attys. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged with second degree murder. The court, sitting as a jury, found him guilty and assessed his punishment at fifteen years in the state penitentiary. He did not appeal. As an inmate, he filed Avith the trial court a petition for a writ of habeas corpus Avhich was treated as a petition for post-conviction relief under our Criminal Procedure Rule No. 1. His present counsel was appointed and a hearing was conducted by the court. By written findings of fact and conclusions of law the trial court dismissed appellant’s petition.

On appeal the appellant contends that his constitutional rights, under the Fourteenth Amendment due process clause, were violated at his trial in that his attorney did not call a certain witness in appellant’s behalf. At the evidentiary hearing under Rule No. 1, the appellant’s trial attorney, who was employed by appellant, testified that in his judgment further testimony would have been of no avail in view of appellant’s damaging statements or admissions as a witness in his own behalf. The record does not show what the omitted testimony of appellant’s witness would have been. We agree with the trial court’s finding that there is nothing demonstrated “in the record to indicate how the failure to call this witness prejudiced the petitioner [appellant] in any way.” Further, we have recently said there is no denial of a fair trial where the basis of a defendant’s complaint relates primarily to his counsel’s trial tactics and strategy which involve elements of discretion and judgment upon which competent counsel might honestly disagree, especially after the event. Barnhill v. State, 247 Ark. 28, 444 S. W. 2d 97 (1969).

The appellant further contends that the trial court erred in not reducing the charge to manslaughter and that the sentence imposed upon the defendant was oppressive. We find no merit in either of these contentions. Neither was contained in appellant’s petition. Both contentions are argued for the first time on appeal. It is a most familiar rule that issues raised for the first time on appeal cannot be considered. The sentence imposed was within the limits set by the legislature and from a review of the record before us we cannot say that the evidence is insubstantial. It should also be observed that our Criminal Procedure Rule No. 1 was not formulated to permit such an attack upon a sentence which is within the statutory limits.

After a full review and canvass of the record in the case at bar we are of the view that there exists no violation of appellant’s constitutional rights.

Affirmed.


author: Carretón Harris, Chief Justice.

text:
    CONTINENTAL MOSS-GORDIN, Inc. v. Zane G. BEATON
    5-4991
    446 S. W. 2d 226
    Opinion delivered October 27, 1969

      Smith, Williams, Friday & Bowen, for appellant.

      Branch & Adair, for appellee.
   Carretón Harris, Chief Justice.

On March 20, 1963, Zane Beaton, appellee herein, and the owner of the Shugtown Gin Company, agreed to purchase from Continental Moss-Gordin, Inc., appellant herein, a machine to be used in ginning operations. The agreed purchase price was $3,200.00, payable as follows: a $1,600.00 down payment was to be made when the'machine was delivered, and Beaton executed two promissory notes for the remaining balance of $1,600.00, each in the amount of $800.00, the first being due on October 15, 1964, and the second due on December 15, 1964. The two notes were admittedly paid, but on February 17, 1967, appellant instituted suit against appellee for the $1,600.00 down payment, alleging that this payment had never been made, despite repeated demand for same. Beaton answered, denying that he had failed to make the down payment, and a counterclaim was filed, seeking damages in the amount of $4,137.50, appellee asserting that the machine was defective, had never functioned properly, and there was a bréach of warranty. At the conclusion of the evidence, appellant moved for a directed verdict, and this was denied as to the complaint, but granted as to appellee’s counterclaim. The jury then returned a verdict for appellee on appellant’s complaint. From the judgment so entered, the company brings this appeal. Appellee cross-appeals from the action of the court in directing a verdict on its counterclaim.

Ben Harpole, a salesman for appellant company, handled the Beaton sale, and this witness testified that, on June 22, 1963, he took the promissory notes and financing statement to appellee for his signature, and he said that he suggested to Beaton that he (Beaton) could give the down payment at that time, rather than waiting until delivery of the machine. This was not agreeable to Beaton, and Harpole marked through “cash before shipment,” and the requirement was “cash on delivery,” meaning that the down payment was to be paid when the machine was delivered.

Beaton testified that he made the $1,600.00 down payment in June, 1963, at the time of signing the notes, and financing statement:

“* * * I said something about giving him a check, but I didn’t know how much rubber it would have in it, and chuckled about it, and my daddy took a check out of his pocketbook and handed it to me and said, ‘We might as well pay with this.’ I took it and endorsed it on the back and said, ‘Ben, I know this is not good business to pay like this, but I know you are not going to steal the check anyway.’ ”

Beaton testified that he did not remember who had written the check, or the name of the bank, and did not recall whether the check was written to his father, or to the Earl Beaton and Son Gin Company. He said the check was given to Harpole, and the latter accepted it; that subsequently, the machine was delivered, and no demand for down payment was made by the company.

Appellant’s entire argument is based on the premise that tender of a check does not constitute payment of a debt, the presumption being that the check is accepted on condition that it will be paid. The company contends that, since appellee offered no evidence that the check was ever paid or honored by any bank or any other drawee, and Beaton admitting that he did not know whether the check was ever paid by any bank, appellant was entitled to a directed verdict. It is true that we have held that the burden of proving that payment was made is on the person asserting such payment. Blass v. Lawhorn, 64 Ark. 466, 42 S. W. 1068; Smith v. J. M. Taylor and Company, 144 Ark. 569, 222 S. W. 1062. But that does not mean that the cancelled check, or proof of its existence, must be shown before one can successfully assert that the indebtedness has been paid. Of course, a cancelled check would establish the payment — just as a receipt generally (except where one is obtained by fraud or mistake) establishes a payment by cash; certainly, however, it could not be contended that one could not prove payment of an indebtedness because be bad lost bis receipt. Accordingly, tbougb cancelled checks, receipts, or notes, or obligations marked “paid,” are, of course, the best evidence of payment, we know of no requirement that makes this type of evidence mandatory. In fact, in the course of trade, debts are paid every day by third party checks which the payor endorses. If such checks are turned down when presented for payment, they are returned to the payor, who is then required to make the check good. In the case before us, there is no contention that Beaton gave a “bad check;” the contention is, in effect, that he gave no check at all.

If the above were all the proof in the case, appellant might well have a more justifiable complaint on the verdict — but other evidence adduced, clearly, we think, made a case for the jury. For instance, the contract very definitely calls for a $1,600.00 payment on delivery. If Beaton did not make this payment, why did the company permit delivery to be made? Further, though this record is not at all clear, it does not appear that any complaint (that the down payment had not been paid) was made to Mr. Beaton for, at least, a long number of months after the delivery of the machine. Needless to say, it would appear that, if no down payment were made, company officials would have contacted Beaton within a few days after the delivery, particularly when the record discloses that Beaton was constantly making complaints that the machine was not performing satisfactorily.

An even more pertinent fact is that, on two occasions, the company sent Beaton a bill for $1,664.00, the bills referring to the charge as a “past due repair account. ’ ’

It might be said that bookkeeping methods, as reflected by various statements sent by appellant to Beaton, and offered into evidence by him, were not such as to inspire confidence in the accuracy of the Beaton account.

We find no merit in the cross-appeal, and this can be disposed of briefly. Though maintaining that the machine was defective, and that the warranty had been breached, appellee paid the two remaining notes on the purchase price after discovering the alleged defects, used the machine from time to time over a three-year period, made no effort to return it and rescind the sale, and offered no evivdence of damages for which recovery is permitted under Ark. Stat. Ann. §§ 85-2-714 and 85-2-715.

Affirmed on both direct and cross-appeal.

      The agreement to purchase was actually with Gordin Unit System, the company later changing its name to Moss-Gordin Company. Subsequently, Moss-Gordin Company merged with the Continental Gin Company, and became known as Continental Moss Gordin, Inc. The accounts receivable were transferred to the company after the merger, the acquisition being completed on September 22, 1964.

      The complaint sought $1,664.00, the $64.00 representing Louisiana sales tax; this tax evidently was not paid, but the matter is not mentioned in appellant’s argument.

      The contract listed three methods of settlement, viz., cash with order, cash before shipment, and cash against B/L on delivery. This last was filled in $1,600.00.

       In August, 1963.

       In its brief, appellant states: “It is settled that mere tender of a check does not constitute payment of a debt, the presumption being that the check is accepted on condition that it will be paid. See Fletcher v. Ray, 220 Ark. 844, 250 S. W. 2d 734, and authorities cited therein.” The law is stated correctly. Fletcher v. Ray, supra, concerns a check given by a candidate for office which was turned down because of insufficient funds. However, the present transaction is not in the same category as where an individual gives a check, and payment is refused because of insufficient funds or no account with the bank. We have many times held that such a check does not constitute cash payment, and only becomes payment when the check is honored by the bank; that is not the situation in the instant litigation. Appellant’s statement from the brief, quoted in this footnote, would hardly seem to be correct under all circumstances. For instance, many persons, when receiving payment for goods or services from a celebrity by check, frame the check, rather than cash it. Could it be maintained that the celebrity did not pay?


author: Carleton Harris, Chief Justice.

text:
    Crawford RYALL et al v. WATERWORKS IMPROVEMENT DISTRICT NO. 3 et al
    5-5000
    445 S. W. 2d 883
    Opinion delivered October 27, 1969

      Brockmcm & Brockman, for appellants.

      Odell C. Garter, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to the refusal of the Lincoln County Chancery Court to grant a temporary injunction on the complaint of appellants wherein they sought to enjoin the commissioners of Waterworks Improvement District No. 3 from proceeding with the construction and erection of an oxidation treatment plant for sewage near the town of Star City; the complaint prayed that upon final hearing, the injunction be made permanent. For reversal, it is simply asserted that the Chancellor erred in not granting a temporary injunction on the basis of appellants’ unrebutted evidence.

No point would be served in relating the testimony in detail. Appellants offered the testimony of Crawford Ryall, Grover Brockman, Jr., Clara Shepherd, and Hubert Slaten, Jr., for the purpose of showing that the proposed oxidation plant is a nuisance. Though construction is not completed, and the plant is not in operation, the witnesses all expressed the fear that the value of their properties would be depreciated. Mr. Ryall stated that, in his opinion, the value of his property would be tremendously affected, and he also expressed the fear that the plant would be a health hazard. He said that when there is a prevailing southwest wind he would get odors from the present system; which was farther away, and probably would also get odors from the proposed new plant:

“I feel like we will, yes, sir. We might not if we were further from it but being that close to it I feel like we will and by the overflow of it — I feel sure it will overflow the creeks and it will be an odor from that.”

Mr. Brockman testified that the new plant would be closer to his home (than the present disposal system), and he felt that the value of his house would be depreciated :

“Well I am thinking it is going to devalue our property. Also I am not real afraid that we will be maybe too much right now but I am thinking in the future what it is going to do to our property. We already have had smells from the other one that comes down the creek and it has me a little gun-shy of this.”

He also stated that he was afraid it would affect his deep well system:

“* * * Of course I understand they say it won’t hurt it but you still worry about it and of course we — I guess that is about the extent of it is the property value. ’ ’

Mrs. Shepherd testified that she had lost land sales due to the location of the proposed plant; that the prospective purchasers found out about the plant and they did not want to build a house close to it. The testimony of Mr. Hubert Slaten, Jr., a certified realty appraiser, was offered by appellants for the purpose of endeavoring to establish damage to the property of appellants, but when asked if the oxidation plant would produce a detrimental effect, Mr. Slaten replied: “It is possible it could, yes, sir.” On cross examination, Slaten also stated that it was possible that it would have no effect on the value of the lands.

No facts were presented which established that the plant would constitute a nuisance. It is, of course, understandable that appellants may have fears that the plant will adversely affect the value of their lands and properties — but the fear of what may happen is not a sufficient ground for obtaining an injunction. In Kimmons v. Benson, 220 Ark. 299, 247 S. W. 2d 468, this court said:

“Reviewing the evidence de novo, we do not feel able to say with assurance that the appellants’ bowling alley will certainly amount to a nuisance in the neighborhood. It may, as the appellees ’ proof indicates, prove to be a serious annoyance to residents in the vicinity, but on the other hand it may turn out to be a harmless place of amusement that will not be noticed by these appellees and their neighbors. In these circumstances equity ought not to prohibit the erection of the building. Such a prohibition is permissible only when the preponderance of the testimony shows that the activity is certain to be a nuisance, Murphy v. Cupp, 182 Ark. 334, 31 S. W. 2d 396; Buckner v. Tillman, 195 Ark. 149, 110 S. W. 2d 1060. In the Buckner case we refused to enjoin the erection of a cotton gin in a residential area because there was doubt that it would prove to be a nuisance, and for the same reason we have declined to stay the installation of a sawmill. Eddy v. Thornton, 205 Ark. 843, 170 S. W. 2d 995.”

Also, the court commented that the hearing was only for purposes of determining whether a temporary injunction should be granted, and that, if the proof were sufficiently developed to warrant injunctive relief, a permanent injunction could be granted after the final hearing.

We do not agree that the court committed error in failing to grant temporary relief.

Affirmed.

      It is not clear how far construction has advanced, or actually tvhether it has commenced.

      A filtration plant.

      This testimony was hearsay, but there was no objection to it.

      Emphasis supplied.

      It is interesting that the court in its oral remarks from the Bench, stated that Mr. Ryall’s and Mr. Brockman’s septic tanks were closer to their wells than the proposed oxidation plant.


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

text:
    Larry PITTS and Terry PITTS v. STATE of Arkansas
    5442
    446 S. W. 2d 222
    Opinion delivered October 27, 1969

      Lewis D. Jones and James D. Emerson, for appellants.

      Joe Purcell, Attorney General; Bon Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   George Rose Smith, Justice.

On the night of March 2, 1969, two riding horses and two ornate saddles, with some bridles and other tack, were stolen from three separate premises in the Fayetteville area. Charges of burglary and grand larceny were filed against the appellants, Terry Pitts, 27, and his brother Larry, 20. The jury found the defendants guilty on all counts and imposed minimum sentences of one and two years, to run concurrently. On appeal the controlling issue is whether the testimony of an asserted accomplice, Paul Vanderboom, 18, was sufficiently corroborated.

The evidence must be examined in some detail. The Pitts brothers formerly lived with their father in Springdale, across the street from young Vanderboom and his mother. At the time of the offenses, however, Larry Pitts was living with his father in Houston, Texas, and Terry was living with his wife and child in Houston.

About a week before the night in question Terry and his wife Cheryl had some sort of dispute that led to a brief separation. Larry, at his sister-in-law’s request, took her and her belongings to Oklahoma City, using a new pick-up truck and a four-stall horse trailer that were both owned by the Pitts brothers. On Tuesday, February 25, Larry took tbe horse trailer to Siloam Springs, Arkansas, and parked it at the home of friends, the Buchanans, because Cheryl would not let him leave it at her place in Oklahoma City.

Later in the week Terry went to Oklahoma City, as did Paul Vanderboom, who was a friend of Larry’s and who had visited Larry in Texas. On Saturday night, March 1, the three youths drove to Fayetteville in the pick-up and spent the night at a motel. Larry signed the register as Larry Tyler. At the trial he was not asked why he used that name, but apparently it was because his brother made his living as a singer un<|er the professional name Terry Tyler. On Sunday afternoon the three checked out of the motel, drove to Siloam Springs, and visited with Mrs. Buchanan and her daughter until about six o’clock. The three young men then drove off in the truck, leaving the trailer still parked in the Buchanans’ yard.

Here the testimony for the State and that for the defense diverge completely. Terry and Larry say that Paul Vanderboom had asked to borrow the pick-up so that he could have a date in Springdale and then visit his father in Monett, Missouri. Terry, having agreed to lend the truck to Paul, telephoned an aunt in Oklahoma and asked her to meet him and Larry at the Arkansas line — about a mile from Siloam Springs — and take them to Oklahoma City so that Terry could try to patch things up with his wife. The Pittses say that when they left the Buchanans’ house Paul drove them to the State line, where their aunt mqt them. Larry testified that in changing to clean trouser|s-h‘e'inadvertently left his billfold in a pair of trousers that remained in the truck. Both the aunt and Cheryl corroborated the appellants’ statement that they accompanied their aunt to Oklahoma City.

Paul — unquestionably an accomplice if his testimony was true — gave a wholly different account. According to Paul, the Pitts brothers had promised to pay him $50 a day to help them steal horses and riding gear. He says that upon leaving the Buchanan home in Siloam Springs he was instructed to drive to Fayetteville, where he successively dropped the Pitts boys at two different places to enable them to steal saddles. He says that on the second occasion they took a pair of bolt cutters with them. Paul next dropped the Pitts brothers and the saddles at a third place, where they were to steal horses. At their direction Paul drove back alone to Siloam Springs to get the horse trailer.

Paul testified that upon returning to Fayetteville to rejoin Terry and Larry he first parked behind a small church, but he was observed there by a group of teenagers in a passing car. Paul then drove to Agri Park, with the teenagers following him. One of the teenagers testified that he and his friends telephoned the police, thinking that Vanderboom might be about to burglarize the church.

In answer to that call Officer Wood went to Agri Park, where he found the pick-up truck, locked and unattended, and the trailer. The officer observed some boots and blue jeans in the cab of the truck, with a billfold on the dashboard. He also saw a pair of bolt cutters in the front stall of the trailer. In a few moments Vanderboom appeared and stated (falsely) that the truck and trailer were his. Officer Wood became suspicious and took the boy to police headquarters for questioning. There he was found to be in possession of his own billfold and also one belonging to Larry Pitts. On the witness stand Paul testified that he did not know why Larry’s billfold was in his pocket.

Officer Wood left Paul at headquarters and returned to the park, where he found that the truck had been broken into during his brief absence. There were horse hoofprints around the truck that had not been there a few minutes earlier. The boots, blue jeans, and billfold were missing from tbe cab, and the bolt cutters were missing from the trailer. The stolen horses and saddles were recovered the next day.

There is no dispute about the applicable rules of law. Under the statute a conviction for a felony cannot be had upon the testimony of an accomplice “unless corroborated tby other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark. Stat. Ann. § 43-2116 (Eepl. 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, “if the testimony of the accomplice is eliminated from the case,” the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S. W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304 (1943).

Here the corroborative proof falls short of establishing the necessary connection between the appellants ' and the commission of the offenses. We mention only ’ the salient points. The Pitts brothers owned the truck and trailer, but ownership of a vehicle used in the commission of larceny does not sufficiently corroborate the testimony of an accomplice. Thompson v. State, 207 Ark. 680, 182 S. W. 2d 386 (1944). That Larry registered at the motel on Saturday night under an assumed name might certainly be regarded by the jury as a suspicious circumstance, but that fact obviously does not suggest either directly or by inference that Larry and his brother were guilty of stealing horses and saddles on the following night.

Vanderboom’s possession of Larry’s billfold shows nothing more than the admitted fact that the two had been together. It throws no light whatever upon the vital question: Who stole the horses and saddles?

It is reasonably certain that young Yanderboom had help from someone in the commission of the crimes. It may fairly be inferred that his accomplices broke into the pick-up truck while he was being taken to the police station and spirited away evidence that might have led to their identification. But there is no basis except suspicion for saying that those confederates were Terry and Larry Pitts. Indeed, it is a striking fact that of the thirteen witnesses who testified for the State young Vanderboom was the only one who claimed to have seen the Pitts brothers anywhere in the State of Arkansas during the several hours involved in the perpetration of the crimes.

Finally, the bolt cutters. The owners of the two tack rooms that were burglarized testified that the entries were effected by the cutting of a chain in one instance and of a hasp in the other. Officer Wood testified positively that a pair of bolt cutters was in the horse trailer when he first inspected it. Larry Pitts admitted his ownership of the bolt cutters, explaining that he had gotten them several weeks earlier to build a fence with. If that were all the proof it might be said that the State had established a positive connection between the accused persons and an item of equipment used in the commission of the crimes. See Shipp v. State, 241 Ark. 120, 406 S. W. 2d 361 (1966).

That, however, is not all. Officer Wood actually eliminated the bolt cutters as a factor in the case when he testified positively that they were in the front stall of the horse trailer when he first examined it and that they had been taken from the horse trailer when he returned to Agri Park. Yet Yanderboom says that the bolt cutters were used in the thefts at a time when the horse trailer was thirty miles away in Siloam Springs. He does not suggest that he himself transferred the bolt cutters from the pick-up truck to the trailer when he went back to Siloam Springs for the latter vehicle. To the contrary, he testified that he thought the bolt cutters were in the truck when he was detained and taken to police headquarters for questioning. Thus Officer Wood’s unequivocal testimony, far from corroborating Paul’s accusations, actually demonstrates that the Pitts brothers could not have used the bolt cutters at the time and place specified in Paul’s testimony. It will not do, of course, to say that Officer Wood may have been mistaken, for in that case the required corroboration would be lacking.

Needless to say, we do not pass upon the veracity of any of the testimony heard in the court below. We are convinced, however, by our study of the record that the State failed to adduce sufficient evidence to satisfy its burden of corroborating Yanderboom’s testimony.

.Reversed and remanded.

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

John A. Fogleman, Justice,

dissenting. While I agree that no single act treated in the majority opinion would have been sufficient corroboration of the accomplice Yanderboom, I think that when all acts of the appellants are considered together a jury question was presented. Corroboration may be circumstantial as well as direct. Mullen v. State, 193 Ark. 648, 102 S. W. 2d 82.

Circumstances here are:

Appellants spent the- night, preceding that on which the crimes were committed, with the accomplice in a motel in Fayetteville into which one of them registered under a fictitious name and address. Vanderboom’s home was only a short distance away in Springdale. The appellants and Yanderboom were together in Si-loam Springs at least until 6:00 p.m. on the night the crimes were committed. A billfold carrying the identification of Larry Pitts was in the possession of Vanderboom when he was arrested. Articles which would have tended to incriminate appellants, that is, a billfold and clothing said by Vanderboom to be that of Terry Pitts, had disappeared from the pickup truck between the time Vanderboom was arrested and the time when the arresting officer returned. A pair of bolt cutters belonging to Larry Pitts had also disappeared from a horse trailer attached to the pickup truck. There were horse hoofprints around the truck that had not been' there when the officer was first at the scene. The pickup truck and horse trailer belonged to appellants. The truck keys were in Vanderboom’s possession.

It seems to me that all of these circumstances, taken together, constituted sufficient evidence to make a jury question as to the sufficiency of the corroboration. See McClure v. State, 214 Ark. 159, 215 S. W. 2d 524. Presence of the accused in the proximity of the crime, opportunity, association with persons involved in such a way as to suggest joint participation, possession of instruments probably used to commit the offense are all relevant facts in determining whether statements of an accomplice are sufficiently corroborated. Moore v. State, 30 Ala. App. 304, 5 So. 2d 644 (1941); Cawley v. State, 166 Tex. Crim. 37, 310 S. W. 2d 340 (1957); State v. Mathiasen, 267 Minn. 393, 127 N. W. 2d 534 (1964). I would affirm the judgment.

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


author: Lyle Brown, Justice.

text:
    Dwayne GOODE d/b/a VILLAGE REXALL DRUGS v. UNIVERSAL PLASTICS, Inc.
    5-5003
    445 S. W. 2d 893
    Opinion delivered October 27, 1969

      Guy H. Jones and Phil Stratton, for appellant.

      Clark, Clark & Clark, for appellee.
   Lyle Brown, Justice.

Appellee brought suit asserting that appellant, a Conway, Arkansas, druggist, owed a balance of $558 on a contract and note. It was stipulated that appellee, Universal Plastics, Inc., was a foreign corporation not qualified to do business in Arkansas as required by Ark. Stat. Ann. §§ 64-1201 et seq. (itepl. 1966). Appellant Goode contended before the circuit court that appellee had no standing to sue because the contract was made and performed in Arkansas and that such a contract made by a nonqualifying foreign corporation cannot be enforced in Arkansas courts. The circuit court, sitting as a jury, found as facts that (1) the contract sued on was a Tennessee contract, and (2) the transaction was in interstate commerce. Judgment was entered against Goode and he appeals.

Universal Plastics has the right to maintain an action on a contract made in Tennessee although it has not qualified to do business as a corporation in Arkansas. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., 242 Ark. 701, 416 S. W. 2d 284 (1967). Also, § 64-1202 is not applicable to contracts in which the transaction is wholly in interstate commerce. W. T. Rawleigh Medical Co. v. Rose, 133 Ark. 505, 202 S. W. 849 (1918). The facts convincingly demonstrate (1) that the contract was made in Tennessee, and (2) that its performance was wholly in interstate commerce.

Appellee has its plant and office in Cookeville, Tennessee, where it is engaged in manufacturing advertising covers for telephone books. In 1966 appellee’s agents solicited orders in Conway, Arkansas. Appellant signed an “Application for membership and Contract for Tel-A-Guide advertising.” The contract provided for appellee to manufacture 5,000 telephone book covers to be distributed in the Conway area containing an advertisement for appellant’s drugstore. On the face of the contract below appellant’s signature iis the statement, “All applications subject to acceptance by Universal Plastics, Inc.” Immediately above appellant’s signature is the phrase, “see reverse side for terms and conditions,” and on the reverse side is the following statement:

1. This application is subject to acceptance and performance by Universal Plastics, Incorporated of Tennessee at its home office, hereafter known as UNICORP. Upon such acceptance without further notice to the customer, this application becomes valid governed by the laws of Tennessee.

Appellee’s area sales manager testified that approval of contracts at the home office was necessary to insure that enough orders had been received from a particular locality to make it profitable to manufacture the covers. The completed contract contained advertisements from Goode and eleven other Conway merchants, all spaces being subscribed. The covers were manufactured and mailed by appellee from its Cookeville plant directly to 5,000 telephone subscribers in Conway.

The contract and note were executed by appellant on the same date and at the same place. They both relate to the same transaction and it is conceded they should be considered as one instrument. Gowen v. Sullins, 212 Ark. 824, 208 S. W. 2d 450 (1948).

The trial court was correct in its finding that the contract was made in Tennessee. The rule is stated in Leflar’s American Conflicts Law (1969), § 144 at page 353:

The authorities are reasonably clear that, in this event, the contract is made at the time and place ‘where the last act necessary to the completion of the contract was done — that is, where the contract first creates a legal obligation.’

The solicitor of a contract may by its terms dictate the mode of acceptance by which legal obligations will arise thereunder. Mechanics’ Lumber Co. v. Yates American Machine Co., 181 Ark. 415, 26 S. W. 2d 80 (1930). The terms of the instrument before us make it clear that no contract came into being until acceptance by appellee at its home office in Tennessee. Upon approval in Tennessee “the last act necessary to completion of the contract was done.” The contract was therefore a Tennessee contract and appellee may enforce it in the Arkansas courts despite its status as a nonqualifying corporation. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., supra.

The evidence also supports the trial court’s determination that the performance of the contract involved an interstate transaction. The terms of the contract clearly indicated that appellee was to mail the book covers from its plant in Cookeville, Tennessee, to telephone subscribers in the Conway area. The 5,000 covers were so distributed. Thus appellee, a consignor outside the State, shipped goods directly to consignees within Arkansas. This action places the transaction between appellant and appellee wholly in interstate commerce. Hogan v. Intertype Corp., 136 Ark. 52, 206 S. W. 58 (1918); McLeod v. J. E. Dilworth Co., 205 Ark. 780, 171 S. W. 2d 62, 322 U. S. 327 (1943). A contract calling for a transaction wholly in interstate commerce is enforceable in Arkansas courts by a corporation not qualified under § 64-1202 to do business in Arkansas. W. T. Rawleigh Medical Co. v. Rose, supra.

Affirmed.


text:
    Zeachel Thomas HENDERSON v. William A. SKERCZAK
    5-5010
    446 S. W. 2d 243
    Opinion delivered October 27, 1969

      Shaw, Jones & Shaw, for appellant.

      Murphy & Carlisle, for appellee.
   Lyle Brown, Justice.

Skerczak sued Henderson for personal injuries arising out of a vehicular collision. The jury found in Henderson’s favor. Twenty-four days after the jury returned its verdict, Skerczak filed a motion for new trial which was granted. Henderson appeals from that order, contending (1) the motion was filed out of time, and (2) there was no showing justifying a finding of unavoidable delay in filing the motion.

With, respect to the issue over the timely filing of the motion, Skerczak contends it was actually filed in time. Skerczak interprets the statute to mean fifteen days after judgment. The jury verdict was returned on November 26; a signed judgment was entered on December 11; and the motion for new trial was filed on December 18. (These dates are all in the same court term.) So if the time starts running from the date of judgment, rather than the date of the jury verdict, Skerczak is correct. The applicable statute is Ark. Stat. Ann. § 27-1904 (Repl. 1962). The portion here pertinent provides that an application for a new trial (excepting one based on newly discovered evidence) shall be made within fifteen days “after the verdict or decision was rendered, unless unavoidably delayed; ...”

We cannot read “judgment” into the quoted statute. The drafters of our Civil Code had a number of occasions to use the words “verdict” and “judgment.” They are not used interchangeably. For example, in one instance we find the phrase, “judgment must be entered by the clerk in conformity with the verdict. ’ ’ Ark. Stat. Ann. ^ 29-109 (Repl. 1962). Then in § 29-111 it is stated that “judgment shall be so entered by the court, though a verdict has been found against such party.” The distinct difference between the two words is almost universally recognized in jurisprudence. City of Aurora v. Powell, 383 P. 2d 798 (Colo. 1963); Schofield v. Baker, 242 F. 657 (1917). It was aptly said in the Powell case:

The jury made these findings of fact. Such findings do not constitute a judgment. The verdict is not a judicial determination, but rather a finding of fact which the trial court may accept or reject and utilize in formulating a judgment. To constitute a judgment, there must be a judicial act.

We also think it is. of some significance that the two words are treated in our Criminal Code as being distinct. We refer to the section governing the application for a new trial, Ark. Stat. Ann. § 43-2202 (Repl. 1964). There it is said, among other things, that the application must be made “at the same term at which the verdict is rendered, unless the judgment is postponed to another term . . . .”

This brings us to the second point on appeal. Appellant contends there was no substantial evidence of unavoidable delay as found by the trial court. Counsel for Skerczak moved to strike the motion for a new trial and the court conducted a hearing. The reporter testified and counsel for Skerczak made a statement. That evidence showed that counsel for Skerczak ordered Henderson’s testimony transcribed. The order was placed “within a week or ten days” after the trial on November 26. Counsel desired to attach a copy of Henderson’s testimony to the motion for new trial to support his point that Henderson’s testimony itself was sufficient to establish a jury question on negligence. The transcribed testimony was delivered on December 8, the twelfth day after the trial. A few days thereafter Skerczak’s counsel delivered the transcript to the clerk and it was there discovered that the reporter had not signed the certificate. On that same date the reporter’s signature was obtained. Some four days thereafter, on December 18, the motion for new trial was filed. Skerczak’s counsel stated that he was out of town during the four-day interval because of the serious illness of his mother.

The untimely filing of the motion could easily have been avoided. In the face of the fifteen-day statute, counsel waited a week or ten days before ordering the testimony transcribed. The transcription was actually delivered before the fifteen days expired. The certificate of the reporter was a formality which could have been cured at any time before the hearing on the motion. Actually, it was not necessary to delay the filing so that Henderson’s testimony could be attached to the motion; that evidence could have been filed at any time before the hearing on the motion. It is not even contended that a transcription of Henderson’s testimony was necessary in order to apprise counsel of its contents, which might have been the case had there been a change in attorneys.

We are not unmindful of the general rule that a trial court may during the same term set aside a judgment without stating any cause. An exception to that rule is recognized in cases of jury verdicts or judgments based thereon; in those situations they cannot be set aside in the absence of the timely filing of the proper motion unless a late filing is caused by unavoidable delay. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S. W. 2d 585 (1961); Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S. W. 2d 724 (1969).

Reversed.


author: John A. Fogleman, Justice. J. Fred Jones, Justice,

text:
    ORGANIZED SECURITY LIFE INSURANCE CO. v. Claude E. MUNYON
    5-5005
    446 S. W. 2d 233
    Opinion delivered October 27, 1969

      Bose, Meek, House, Barron, Nash & Williamson, for appellant.

      James B. Hale, for appellee.
   John A. Fogleman, Justice.

This appeal questions the correctness of action of the trial court in denying appellant’s motion for summary judgment and granting appellee’s. Appellee Munyon commenced the action, seeking to recover weekly total disability payments under a policy issued him by American Alliance Life Insurance Co. He alleged that: Munyon’s claims were paid by American Alliance through November 1, 1967; thereafter, American Alliance was declared insolvent by the Insurance Commissioner while it was indebted to appellee on account of his total disability; on February 13, 1968, appellant assumed, agreed to pay and became liable for performance of all obigations imposed upon American Alliance under said policy, as evidenced by a Certificate of. Assumption executed and delivered to Munyon. Appellee sought to recover for benefits accrued after the date of the assumption agreement, statutory penalty and attorney’s fees.

The policy and Certificate of Assumption were exhibited with the complaint. The latter document contained a statement that Organized Security assumed appellee’s American Alliance policy, together with amendments thereto and agreed to carry out the obligations of American Alliance.

Appellant, by answer, admitted that the policy exhibited with the complaint was a true copy of that policy, that appellee became totally disabled after January 9, 1967, and that his claim for benefits was honored by the issuing company through November 1, 1967. It denied that the Certificate of Assumption was anything other than an assumption of obligations under the policy for claims arising after the assumption date and denied liability for disability benefits accruing after February 13, 1968. Appellant stated, in its original answer, that inasmuch as the disability of Munyon appeared to be total and permanent, no useful purpose could be served by continued payment of premiums and tendered the return of two premiums paid by Munyon. A reinsurance agreement between the Insurance Commissioner, as Receiver for American Alliance, and Organized Security was exhibited with the answer. Under this agreement the latter company agreed to reinsure all outstanding policies of the type issued to appellee in accordance with their terms and to assume all liabilities of the former company under these policies, excluding all claims incurred under such policies before the “assumption of risk time and date.” Appellant also agreed to assume and carry out the several obligations of American Alliance expressed by and contained in the policies and to hold American Alliance harmless from any and all obligations in said policies arising on or after the effective date of the contract which was February 13, 1968.

Appellee Munyon moved for summary judgment-His affidavit in support of his motion also exhibited a copy of the Certificate of Assumption, which he stated was issued to him, together with a letter transmitting it. He stated that he was totally disabled within the meaning of the policy since December 28, 1966, and that he had filed a claim for disability benefits beginning February 13, 1968, with appellant, but that the claim had been refused.

Thereafter, appellant filed a motion for leave to amend its answer, a response to appellee’s motion for summary judgment and its own motion for summary judgment. The proposed amendment to the answer contained a denial that appellee was disabled and alleged that if any disability existed, it was the result of a diabetic condition specifically excluded under the American Alliance policy. A supporting affidavit was made by appellant’s attorney of record. Therein he stated that the reinsurance agreement attached to appellant’s original answer was a true and correct copy of the original agreement and that an exhibited “Waiver Rider” was attached to the original policy, but was not included with the policy attached to appellee’s affidavit. He asserted, in the affidavit, that when total permanent disability commences, the loss occurs at that time and may be considered a single claim, so that no cause of action was stated by appellee. The waiver rider stated an agreement that the terms of the policy should not apply to any disability caused, directly or indirectly, wholly or in part, by diabetes and any disease or disorder caused directly or indirectly from diabetes. It bore signatures by the president and assistant secretary of American Alliance, but no acceptance by appellee, although there was a blank space indicated for signature indicating acceptance.

Appellee then filed an amendment to the motion for summary judgment together with his affidavit that the waiver rider was not attached to or made a part of Ms policy at the time of its issuance and delivery, and that there was no agreement that such a rider was to be made a part of his policy. He exhibited Ms application, his receipt for the policy, his proof of loss executed February 6, 1968, his attending physician’s statement dated May 22, 1967, a letter from American Alliance dated May 26, 1967, transmitting a check for six weeks’ disability payments and requesting a claimant’s statement for each month, his physician’s statement dated February 6, 1968, a letter from appellant dated April 1, 1968, and vouchers showing payment of a total of $2,200 at the rate of $50 per week by American Alliance on appellee’s claim for disability. Later appellee filed another affidavit exhibiting a statement by his attending physician dated January 21, 1969. No further controverting affidavits or other matter was filed by appellant.

Each of the physician’s statements mentioned stated that the nature of appellee’s sickness was: (1) acute myocardial infarction (2) arteriosclerosis (3) diabetes (or diabetes with retinitis) (4) blindness, left eye can only discern light, right eye — 20/400, cannot read. Under the heading “Remarks” the last statement included the following:

“His total disability can be due either to his heart disease (Cardiac Disease, coronary insufficiency and arteriosclerosis, class III-D,) or to blindness. His heart disease could have developed either on account of Diabetes or not on account of it.”

The letter from appellant to appellee dated April 1, 1968, read as follows:

“Enclosed you will find a claimant’s statement form DI100CF which is to be filled out by you on the side marked claimant’s statement and by your doctor on the side for the attending physician’s statement. We would like to have as complete an account of your disability as possible for our records here.
Also, I am enclosing a few supplementary proof of loss form DI100CFS one to be completed each month and returned to us.
This company took over the policies and any liability under the policies commencing with the date of February 13, 1968. Any prior claims will be paid by the Deputy Receiver, Mr. W. W. Barton of Hot Springs. As soon as we receive the completed forms, we will send you a check for the amount due from the date of February 13th on.”
Appellant relies on two points for reversal. They are:
I
“AS A MATTER OF LAW DEFENDANT IS NOT LIABLE UNDER THE REINSURANCE AGREEMENT DATED FEBRUARY 13, 1968, FOR PLAINTIFF’S CLAIM FOR TOTAL DISABILITY SINCE PLAINTIFF’S CLAIM WAS A CLAIM INCURRED BY AMERICAN ALLIANCE PRIOR TO FEBRUARY 13, 1968.
II
GENUINE ISSUES OF MATERIAL FACT WERE RAISED BY THE PLEADINGS, EXHIBITS, AND AFFIDAVITS, WHICH COULD NOT BE DISPOSED OF BY SUMMARY JUDGMENT.”

In support of the first point, appellant argues that the exclusion of all claims, incurred under American Alliance policies before the assumption of risk time and date, left it without liability, as a claim and loss arising December 28, 1966, and a liability of the issuing insurance company.

Assuming, without deciding, that the exclusionary clause in the reinsurance agreement is subject to the construction urged by appellant, it is also subject to a construction making it liable for the monthly payments to appellee and others similarly situated as they become due. Appellant can hardly say that it was unaware of appellee’s claim. The reinsurance agreement required that the Insurance Commissioner deliver to appellant all of American Alliance Life Insurance Company’s books and records pertaining to its policies and policyholders and its card file. Appellant promptly forwarded its Certificate of Assumption to appellee. In this Certificate, appellant agreed “to carry out the obligatiQns of the American Alliance Life Insurance Company under individual policies issued under the terms of such policies.” (Policy No. 6-H-115)

Appellant’s letter of April 1, 1968, clearly recognizes that appellant was aware of appellee’s claim and acknowledged that it had taken “over the policies and any liability under the policies commencing with the date of February 13, 1968.” Appellee was also advised that, when the completed forms requested were received, appellant would send ‘ ‘ a check for the amount due from the date of February 13th on. ” It is clear that appellant did not then construe its reinsurance agreement as it now does. Thereafter, appellee paid at least two quarterly premiums which were returned to appellee with appellant’s original answer filed December 10, 1968.

Even where a contract is ambiguous in its terms, the parties will be hound to the construction which they themselves have placed upon it. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.

In support of the second point, appellant argues that there is a genuine issue of fact as to whether the waiver rider mentioned in and attached to the affidavit of its attorney of record in this case was attached to and a part of the insurance policy issued by American Alliance. It might well be correct in this respect if its response and motion were supported as required by statute, even though appellee by affidavit categorically denied appellant’s assertion in this respect. The only support for this assertion was that of appellant’s attorney. He did not state in his affidavit, when he became attorney for appellant, that he had personal knowledge of the attachment of the waiver rider or, if he did, how he acquired this knowledge. An affidavit by an attorney is not to be considered under summary judgment procedures when the affidavits do not show that the attorney had personal knowledge of the facts set out and that he was competent to testify to them. Ark. Stat. Ann. § 29-211(e) (Supp. 1967); Mercantile National Bank v. Franklin Life Ins. Co., 248 F. 2d 57 (5th Cir. 1957); Subin v. Goldsmith, 224 F. 2d 753 (2nd Cir. 1955).

It must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence. Zampos v. United States Smelting, Refining & Mining Co., 206 F. 2d 171 (10th Cir. 1953); Marion County Co-op Assn. v. Carnation Co., 114 F. Supp. 58 (W. D. Ark. 1953), aff’d., 214 F. 2d 557 (8th Cir. 1954); Young v. Atlantic Mutual Insurance Co., 38 F. R. D. 416 (E. D. Penn. 1965); Walpert v. Bart, 280 F. Supp. 1006 (D. C. Md. 1967), aff’d., 390 F. 2d 877; Couillard v. Charles T. Miller Hospital, 253 Minn. 418, 92 N. W. 2d 96 (1958). The affidavit of an attorney of record is not prohibited, but it is subject to the same tests as those of any other affiant. Here, the attorney’s affidavit is deficient. It does not indicate in any way how he acquired his knowedge of, or information about, the rider or its attachment to the policy. There was no error in finding that there was no issue of fact on this point. Furthermore, the copy of the rider attached to the deposition is neither a sworn or certified copy as required hy statute. Ark. Stat. Ann. § 29-211 (e) (Supp. 1967).

Since we find no merit in either point, the judgment is affirmed. Appellee requests allowance of an attorney’s fee in addition to the $500 allowance by the trial court. We allow an additional $500.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. The facts are simple. Mr. Munyon purchased an insurance policy from American Alliance Insurance Company. He became disabled and drew some benefits under the policy. American Alliance became insolvent and its obligations were assumed by Organized Security Life Insurance Company, hereinafter called the company. The company refused to pay benefits under the policy and Mr. Munyon filed suit. The company admitted the issuance of the policy but denied Munyon’s disability as well as its own liability. Mr. Munyon filed a motion for summary judgment supported by affidavit and his policy was made an exhibit. The attorney for the company filed a counter affidavit stating that there was a rider attached to the original policy when it was issued and a copy of the rider was attached to the counter affidavit. The effect of the rider was to exclude from coverage under the policy disability caused by diabetes. Mr. Munyon was suffering from diabetes.

The question before this court is not whether Mr. Munyon was entitled to recover under his insurance contract The question before us is whether his motion for a summary judgment should have been granted. The question here is not whether Mr. Munyon should have won his lawsuit, the question is whether it should have been tried on its merits.

The summary judgment is such an attractive device for dispensing with litigation it is easy to lose sight of its real and intended purpose and it is easy to erroneously consider affidavits in determining the issues rather than in determining whether there are any issues to he tried. I am of the opinion that the trial court fell into such error in the case at bar and that the error has now been compounded by the majority opinion of this court.

Mr. Munyon attached a copy of the policy as an exhibit to his original complaint and affidavit in support of his motion for summary judgment, hut no rider was attached and none was mentioned. John H. Haley is the attorney of record for the appellant insurance company in this case and the pertinent part of his counter affidavit is as follows:

“John H. Haley, being first duly sworn states as follows: 3. The policy attached to the affidavit of the plaintiff does not include the waiver rider which was attached to the original policy. A copy of said waiver rider is attached to the affidavit as an exhibit.”

Mr. Munyon made a counter affidavit stating that the rider was not attached to the policy when he received it. If the rider was attached to the policy when issued, and was a part of the insurance contract, there is no question that there was a justiciable issue as to liability under the contract. If the rider was not a part of the original contract, then the appellant and Mr. Haley were subject to the penalties prescribed in Ark. Stat. Ann. § 29-211 (g) (Repl. 1962) which is as follows:

“Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party, or attorney may be adjudged guilty of contempt.”

The majority seem to recognize the validity of appellant’s argument that there was a genuine issue of fact to be tried if it were not for the weakness the majority detects in the form of Haley’s affidavit. The majority points out that Haley did not state in his affidavit just when he became attorney for appellant, and that he did not state that he had personal knowledge that the rider was attached to the policy or how he acquired such knowledge if he actually had it. The majority then cites Mercantile National Bank v. Franklin Life Ins. Co., 248 F. 2d 57 (5th Cir. 1957) for the proposition that affidavits by an attorney are not to be considered under summary judgment procedures when the affidavits do not show that the attorney had personal knowledge of the facts set out and that he was competent to testify to them. I fail to read such conclusion from the Franklin case, and I can do no better than quote the court’s own language as follows:

‘ ‘ There were no affidavits on. file, except that the attorneys for rival claimants appended their own affidavits to some of the pleadings.”

The majority states that it must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence. The majority cite Zampos v. United States Smelting, Refining & Mining Co., 206 F. 2d 171 (10th Cir. 1953) in support of this statement. In Zampos the litigation was over damage to a mine caused by flooding. The affidavit of the attorney in that case merely detailed statements made to Mm by others who had seen the flood, and the court held that his affidavit was nothing more than hearsay.

I am not critical of the general rules of law stated by the majority as related to the facts in the cases cited in support of the rules, but in my opinion they simply do not apply to the facts in the case at bar.

In the first place affidavits are not reqmred at all in support of a motion for a summary judgment. Ark. Stat. Ann. § 29-211 (a), (b) and (c) (Repl. 1962 and Supp. 1967) are as follows:

“(a) A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits, for a summary judgment in his favor upon all or any part thereof.
(b) A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” (Emphasis supplied.)

When the parties elect to file affidavits in support or in opposition to a motion for summary judgment, it was never intended by the rule that the courts should simply examine the affidavits for technical flaws and render judgment on the affidavit most perfect in form. The purpose of the affidavit is to assist the trial court in separating the truth from fiction and separating the facts as they are alleged from the facts as they are.

On a motion for summary judgment the trial court should only be concerned with what material facts exist without substantial controversy and what material facts are actually in good faith controverted. Where an attorney files a counter affidavit on behalf of his client, the trial court should accept the affidavit at its face value and should not concern itself with how long the attorney had represented his client. It is my opinion that on a motion for summary judgment the court should examine all the pleadings and evidence, as well as affidavits, for substance rather than form. The trial court should first accept the affidavit and then examine the affiant, at the hearing on the motion, if he deems such procedure necessary in reaching the primary object of determining whether any material facts are in controversy. As a matter of fact such procedure is definitely indicated in Ark. Stat. Ann. § 29-211 (d) (Repl. 1962) which provides as follows:

“(d) If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”

Now as to the form of affidavits which constitutes the nucleus of the majority opinion. As already pointed out, affidavits are not required at all in support of, or in opposition to, motions for summary judgment. But when they are employed, Ark. Stat. Ann. § 29-211 (e) (Supp. 1967) provides as follows:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Subsection (e) is directed to the valid substance of a bona fide affidavit and not to rigidity of their precision in form. This is evident from subsequent subsection (f) of § 29-211 which is as follows:

"Should it appear from the affidavits of a party oppising the motion that he cannot for reasons stated present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.” (Emphasis supplied.)

Now as to the counter affidavit in the case at bar: After being duly sworn, Mr. Haley stated:

“The policy attached to the affidavit of the plaintiff does not include the waiver rider which was attached to the original policy. A copy of said waiver rider is attached to the affidavit as an exhibit.”

Does the statute require that the affidavit be made on personal knowledge or does it require, as the majority seems to hold, that the affiant must state in his affidavit that he has personal knowledge of the truth of the matters he swears to be true? The facts stated by Mr. Haley in his affidavit were not stated “according to his best knowledge and belief,” they were stated and sworn to as absolute facts and they refer to information, contained in instruments exclusively in the hands and possession of the opposing adversary.

In Austin Theater, Inc. v. Warner Bros. Pictures, Inc., 139 F. Supp. 727, the complaint alleged a national conspiracy in violation of the federal anti-trust law, which was injuring the plaintiff’s motion picture distribution business. The defendant moved for summary judgment and by supporting affidavit alleged that there was no direct competition between its theaters and those of the plaintiff. In denying the motion for summary judgment, the court said:

“Movants also emphasize the fact that plaintiff’s attorney’s affidavits are not made upon personal knowledge. This otherwise important feature is not controlling in the present case because it appears that plaintiff’s case, in the final analysis, will depend upon evidence obtained from or through the movants and other defendants, who would have peculiar, if not exclusive, knowledge of the alleged conspiracy and its workings.”

In Alvado v. General Motors Corp., 229 F. 2d 408, 411, the court said:

“That argument disregards this important factor: The affidavit relates facts peculiarly within the knowledge of defendants’ officials; indeed it recites that Seaton is familiar with and has personal knowledge of the facts. In such circumstances (especially where as here, such a matter as good faith, or the like is crucial), the granting of a summary judgment is error. For the opponent of the motion is thereby deprived of the opportunity to cross-examine the movant’s officials, and is prevented from having a trial court assisted in its evaluation of their credibility by observing their demeanor while they testify. See Colby v. Klune, 178 F. 2d 872; Bozant v. Bank of New York, 156 F. 2d 787, 790; Subin v. Goldsmith, 224 F. 2d 753, 767; Alabama Great Southern R. Co. v. Louisville and Nashville R. Co., 224 F. 2d 1, 5.”

In Robinson v. Waterman Steamship Co., 8 F. R. D. 155, the plaintiff asserted a claim for damages under the death act for the death of the decedent which was allegedly caused by the negligence of the defendants. Jurisdiction was based on diversity of citizenship, and the defendant made a motion for summary judgment. The court denied the motion for summary judgment and said :

“The plaintiff’s objection to the entry of summary judgment is based solely upon the affidavit of counsel. The affidavit does not meet the requirements of the rule because it is obvious that the affiant is not a competent witness. This failure of the plaintiff to adequately meet or controvert the testimony of the defendants’ affidavit is not fatal, however, to the plaintiff’s objection.” (Emphasis supplied.)

In Pfeiffer v. Frank, 19 F. R. D. 15, the defendant made a motion for summary judgment which was denied. The court said:

“The fact that the opposing affidavits are not based entirely upon personal knowledge is not justification for granting summary judgment, in view of the circumstances disclosed. See opinion of Frank, Circuit Judge, in Alvado v. General Motors Corp., 2 Cir. 229 F. 2d 408.”

In the case at bar the counter affidavit of defendant’s attorney states that a rider was attached to the insurance policy. The insurance policy, including the rider, if there was one, is obviously in the possession of the movant and so it would be necessary for the defendant to obtain evidence from the movant in order to prove that a waiver or a rider was a part of the insurance contract, and he should have an opportunity to do so by cross-examination. Certainly the alleged rider would be admissible in evidence and affiant’s failure to affirmatively state in his affidavit that ho is competent to testify should not be fatal to appellant’s objections to the summary judgment in this case.

In the case of Bull v. Manning, 245 Ark. 545, 433 S. W. 2d 145, the court said:

“A motion for summary judgment is similar to a motion for directed verdict, in that the testimony must be viewed in the light most favorable to the party resisting the motion, and if there is any doubt whether a factual question exists, motion for summary judgment should be denied. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261; Keely v. Lum berman’s Mutual Ins. Co., 239 Ark. 766, 394 S. W. 2d 629.”

In the case of Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435, the court said:

“A motion for summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646.”

In the Deltic case, supra, the court went on to say:

“Further, where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable, men might differ, then a motion for a summary judgment is not proper. Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 181 F. 2d 341 (5th Cir. 1950).”

In Wittlin v. Giacalone, 154 F. 2d 20, the court said:

“. . . [I] t is well established that one who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, and that any doubt as to the existence of such an issue is resolved against the movant. The courts are quite critical of the papers presented by the moving party, but not of the opposing papers. Indeed, Professor Moore says in his work on Federal Practice Under the New Federal Rules:
‘Even if the pleading of the party opposing the motion is defective and does not state a sufficient claim or defense, the motion will be denied, if the opposing papers show a genuine issue of fact.’ See Curry v. Mackenzie, 239 N. Y. 267, 146 N. W. 375.”

In United States v. General Ry. Signal Co., 110 F. Supp. 422, the court said

“* * * To the McHugh affidavit are attached photostatic copies of papers obtained from the files of the defendants and they are offered as evidence of the existence of a genuine issue of material fact. During the oral argument movant’s counsel suggested that the exhibits so offered were hearsay and not properly before the court. The court for the purpose of the motion accepts the source and validity of the exhibits as stated in plaintiff’s affidavit.
There is no denial or attack by. any affidavit filed by movant as to the correctness of those exhibits or as to the propriety of their possession by plaintiff. * * * Upon a trial, of course, the proof of their source would be made and the surrounding circumstances would be related by witnesses having actual knowledge of the facts. This is not a trial.”

It is true that in the affidavit in support of appellee’s amended motion for summary judgment the appellee denies the “waiver rider” was ever attached to the policy, and that if the “waiver rider” does exist, it is the unilateral act of appellant.

The purpose of Rule 56 (e) of F. R. C. P., § 29-211, supra, is to require both the moving and opposing parties to a motion for summary judgment to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. See Robin Construction Co. v. U. S., 345 F. 2d 610 (p. 614-615). In the instant case the appellant has not relied on the pleading, but has offered proof to show that there is a genuine fact issue. A lawsuit should not be tried by affidavit when there has been evidence introduced which raises a doubt as to whether or not a genuine fact issue exists. It appears to me that the majority have directed their attention so elosely to the wording of the opposing affidavit, that they have lost sight of the issue involved. That is, “whether the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’

As I view this case it boils down to one simple issue. Mr. Munyon says that he is entitled to recover on the policy he exhibits. The company says that the policy exhibited by Mr. Munyon is not the entire contract. It says that there was a rider attached to the policy when it was issued to Mr. Munyon and that under the entire contract, including the rider, Mr. Munyon is not entitled to recover on the contract. Mr. Munyon says the rider was not included and the company says it was.

I would reverse the judgment of the trial court and remand this case for proper trial.

      Appellee stated in this application that he had diabetes, that he had been treated for this condition about 1959 by the same physician who made reports to the insurance companies and that he consulted this doctor about once a year.

      February 13, 1968


author: Conley Byrd, Justice.

text:
    ARK. STATE HIGHWAY COMM’N v. Virgil E. WINGO et ux
    5-4996
    445 S. W. 2d 891
    Opinion delivered October 27, 1969

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

      Felver A. Rowell, Jr., for appellees.
   Conley Byrd, Justice.

The only point raised in this eminent domain appeal by the Arkansas State Highway Commission is that the jury verdict is excessive and not supported by substantial evidence. Two expert witnesses on behalf of the highway department testified to damages of $8,750.00 and $8,175.00 respectively. Mr. Lloyd Pearce, an expert called by the landowner, testified to damages of $17,675.00 and appellee Virgil Wingo testified to damages of $30,453.00. The jury verdict is $19,-000.00.

The record shows that the taking for Interstate 40 enters Mr. Wingo’s 365 acre farm on the southern boundary, near the southeast corner, and proceeds west in such manner that 29.66 acres in the southwest corner is landlocked without access. The taking itself is irregular, with obtrusions both on the north and south sides for use as tourist rest areas. Because of the terrain the taking also isolates a portion in the southeast corner from the remainder of his farm. The undisputed testimony shows that it will cost $1,000.00 to build a road from his main farm area to the property in the southeast corner that is north of the interstate. The land condemned by the Highway Department comprises 46.93 acres.

Mr. Wingo testified that the land was located approximately three-quarters of a mile from the city limits of Conway and that its highest and best use was for inter-urban land and farm land. Mr. Wingo based his valuations upon his knowledge of land that he had bought and sold in the area. He gave a before valuation of $151,000.00 and an after valuation of $120,-547.00. His breakdown of the damage was $18,772.00 for the 46.93 acres actually taken; $10,381.00 damage to the landlocked 29.66 acres; $1,000.00 for constructing a road to reach the lands in his southeastern corner, north of the interstate; and $300.00 for a pond he said was filled up during the highway construction.

On cross-examination the following occurred:

“Q. Will you tell the jury that all this acreage was worth $400.00 an acre?
A. Yes, because — Now, this over here on this road was worth more than that.
Q. That is your opinion. What did you have to base that on? How many sales do you know of of property in this area on this highway?
A. I don’t know—
Q. Let me ask the question and then you answer. You say this land on this highway is worth a whole lot?
A. It is worth more than the land off the highway.
Q. How far is this point from the City of Morrilton, this area here?
A. I guess from the city about a mile and a half, where the house is.
Q. Do you contend that this property is worth as much as property in the city limits of Morrilton ?
A. I am valuing that—
Q. How many acres of cleared land do you have?
A. It is practically all cleared, except maybe 100 acres on this ridge.”
# # #
“Q. The only thing you have to base your before value on is the fact that you think this is what the property is worth? You can’t prove it to the jury?
A. I haven’t sold any of it, and I have had lots of chances, and I paid about $300.00 for some of that.”
“Q. Other than the fact that you made improvements on your pasture, have you actually sowed this and fertilized it?
A. Yes, sir, I have the figures.
Q. I don’t need the figures. You are not able to show me any sales anywhere in this county of 80 or 120 or 160 acres of pasture land at $400.00 an acre?
A. I told you on the stand I figured this two or three different ways. As a farm—
Q. The fact is, Mr. Wingo—
A. As inter-urban land (sic) and as farm land.
Q. You call this inter-urban land?
A. Yes, sir.
Q. You are entitled to your opinion.
A. My—
Q. Don’t argue with me.
A. I’m sorry.
Q. That will be all.”

Mr. Lloyd Pearce, the landowners ’ expert, arrived at total damages of $17,675.00 based upon before and after value. Coneededly in arriving at this value he did not consider the $1,000.00 necessary to construct the road nor any damages to the pond.

Witnesses for the highway department testified that the highest and best use for the proprety was for agricultural purposes. They denied that it had any potential value for residential development in the foreseeable future.

Mr. Wingo’s testimony on direct examination is obviously sufficient to sustain the jury’s verdict. The issue here is actually whether or not the cross-examination destroyed that substantiality. We find that it did not.

Affirmed.