Arkansas State Highway Commission v. Phillips

• Decision Date: 27 March 1972
• Docket Number: No. 5--5769,5--5769
• Citation: 478 S.W.2d 27,71 A.L.R.3d 1105,252 Ark. 206
• Parties: , 71 A.L.R.3d 1105 ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Eargle PHILLIPS et ux., Appellees.
• Court: Arkansas Supreme Court

Page 27

478 S.W.2d 27

252 Ark. 206, 71 A.L.R.3d 1105

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Eargle PHILLIPS et ux., Appellees.

No. 5--5769.

Supreme Court of Arkansas.

March 27, 1972.

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

W. B. Howard and Jack Segars, Jonesboro, for appellees.

FOGLEMAN, Justice.

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

* * * the witness, McMurrough, may be called to the stand and may be asked questions which would bring out any factual observations that he may have made, assuming that he did make an appraisal of this property.

* * * Counsel for the landowners will be permitted to identify McMurrough with reference to his past and present employment; will be permitted to inquire as to, whether or not, he did submit an opinion as to his valuation of the property concerned; but will not be permitted to ask him in dollars and cents what this submission consisted of.

In making this ruling, I am mindful that under the Arkansas law that where a witness is available to a party and by reason of his employment subject to the party's direction and control, a failure to call that witness, with reference to any fact in issue, creates what has been stated to be a presumption that his testimony would be adverse to the party who could have called him. It appears to me that, that which is referred to as a 'presumption' is not a presumption of law, but is rather a presumption of fact, which is rebuttable and would be more properly termed an inference. * * *

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

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

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

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

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

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

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

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

But the sort of conduct in question--suppression of evidence, bribery of witnesses, non-production of evidence, and the like--is a matter of law receivable equally against civil parties, and must therefore be treated in the light of this broader use.

It is enough, then, for practical purposes to note that this kind of conduct, though circumstantial in its nature, is guarded against evidential misuse as hearsay by using it, in civil cases, only when predicated of the party opponent, i.e., only when it could be treated as an admission; * * *

So far as regards the nature of the conduct which is open to this inference, all that can be said, in generalizing, is that there are broadly two sorts,

first, conduct indicating a consciousness of the weakness of the cause in general,--bribery, destruction of evidence, and the like;

and, secondly, conduct indicating a consciousness of the weakness of a specific element in the cause,--failure to produce a particular witness or a document, and the like.

In the former (§§ 278--284) the inference is an indefinite one, that the whole cause must be an unfounded one since such means are employed to sustain it; in the latter (§§ 285--292), the inference is a definite one, that the specific witness or document bears unfavorably on the cause.

As to the failure to produce evidence Professor Wigmore, page 162, § 285, then says:

The consciousness indicated by conduct may be, not an indefinite one affecting the weakness of the cause at large, but a specific one concerning the defects of a particular element in the cause. The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have...