Washington Nat. Ins. Co. v. Meeks

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Washington Nat. Ins. Co. v. Meeks, 458 S.W.2d 135, 249 Ark. 73 (Ark. 1970)
• Decision Date: 05 October 1970
• Docket Number: No. 5--5270,5--5270
• Parties: WASHINGTON NATIONAL INSURANCE COMPANY, Appellant, v. Dwight S. MEEKS, Appellee.

Page 135

458 S.W.2d 135

249 Ark. 73

WASHINGTON NATIONAL INSURANCE COMPANY, Appellant, v. Dwight S. MEEKS, Appellee.

No. 5--5270.

Supreme Court of Arkansas.

Oct. 5, 1970.

Streett & Plunkett, Camden, for appellant.

Brown, Compton, Prewett & Dickens, El Dorado, for appellee.

FOGLEMAN, Justice.

Appellee brought suit against appellant on a disability insurance policy. From an adverse judgment, appellant seeks reversal, alleging error in refusing to permit cross-examination of appellee concerning his income before and after the accident from which his alleged disability resulted and in procedures in making a drawn and struck jury. We reverse for error in limiting this cross-examination.

Appellee claimed that an injury by gunshot suffered on February 22, 1968, required the amputation of his left foot and caused his total disability as defined in the policy. Appellant contested the disability. Appellee was the owner of rental real estate. He testified that he had maintained the parking lot and building rooftops in a shopping center owned by him. He also testified that he had carried furniture at his motel at various times and made repairs in the rooms, in addition to maintaining the roof and parking lot there. He stated that while much of his work had gone undone after the accident, other duties had been done by friends or by extra help hired. He testified that, after the accident, he had attempted to do various work and had operated a tractor crawler.

On cross-examination, it was revealed that appellee had listed outside labor costs by those who serviced his rental properties in 1968, after his injury, on his income tax return, but that none of them related to any property other than his laundromat and his motel; that he did not own some of the property he had owned prior to the injury; that he did keep the machines in his laundromat in operating condition; that he collected rents from his properties and did such things as check the rate of occupancy of the motel. Thereafter, appellant's counsel asked appellee if, as a result of his accident and for a period thereafter, there was any substantial difference in the amount of money he derived from his own operation of businesses. Appellee's objection to this inquiry was sustained. After appellee stated on further examination that there was a significant difference in his income from his activities in the operation of his business before and after his injury, appellant's counsel sought to ask appellee to state the amount of the difference in the rental income from the laundromat before and after the accident and the difference in his income from his activities relating to rental property other than the laundromat and motel, to both of which inquiries appellee's objections were sustained. The court's ruling was apparently based upon the circuit judge's holding that the inquiries were not proper subjects of cross-examination but were actually direct examination or attempts to impeach appellee's affirmative answer to appellant's inquiry whether there was any difference in the income from his business before and after the allegedly disabling injury.

We do not agree with the trial judge's premise in ruling upon these inquiries. The fact issue to be determined was whether appellee was totally disabled. He had testified on direct examination that by reason of the injury, he was unable to perform certain duties he had previously done in connection with his real estate rental business. He did not point out any specific amounts that he had paid or been called upon to pay anyone to perform services he was unable to do. Nor did he ever state the amount by which the income he received from the rental property, for which his services had been previously required, had declined. While the answers to the questions propounded by appellant's counsel were certainly not determinative of the question at issue, they would certainly have been pertinent, material and relevant to the question whether appellee was actually disabled and whether his disability was total, and to his testimony on direct examination that his condition required that he employ others to perform substantial services he had previously done himself. The variation in appellee's income was not only pertinent to the issue, it was so closely related to appellant's testimony on direct examination that we find the question to be within the proper scope of cross-examination.

We have recognized the great importance of cross-examination and the wide latitude which should be permitted the cross-examiner in eliciting facts contradictory to the testimony of the witness given on direct examination. We have said that cross-examination is a leading and searching inquiry of a witness for further disclosure touching the particular matters detailed by him in his direct examination, that it serves to sift, modify or explain what has been said in order to develop facts in a view favorable to the cross-examiner, and that its objects include weakening or disproving the case of the adversary, breaking down his testimony in chief, testing his veracity, accuracy and honesty, and exhibiting the improbabilities of his testimony. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795. While we recognize the wide latitude of discretion vested in the trial courts to control and limit cross-examination, we have not hesitated to find an abuse of discretion in undue limitations thereon or abridgment thereof. Arkansas State Highway Commission v. Dean, Ark. (December 1, 1969), 447 S.W.2d 334; Huffman v. City of Hot Springs, supra. We feel that an inquiry so pertinent to the basic issue as the one propounded by appellant should have been answered, and that the sustaining of appellee's objection thereto was an abuse of the court's discretion.

Appellee contends, however, that error cannot be predicated upon the sustaining of his objection because appellant made no offer to show what the answer of appellee would have been. He relies upon Rhine v. Haley, 238 Ark. 72, 378 S.W.2d 655. We do not consider that case applicable or controlling here. In Rhine, the objection was to the relevancy of the question. No question of relevancy is involved where, as here, the inquiry is not only pertinent to the main issue in the case but is also within the proper scope of cross-examination to wring disclosures which might modify or explain a witness' testimony on direct examination or bring it into a perspective which might present a view more favorable to the cross-examiner.

We are not aware of any of our cases which require an offer of proof under the circumstances prevailing here. It is clearly the majority rule that the requirement of an offer of proof does not apply where the testimony excluded was sought to be elicited by cross-examination of an adverse witness, and it has even been said that prejudice may be presumed. Davey v. Davey, 77 N.M. 303, 422 P.2d 38 (1967); Stillwell v. State Industrial Accident Commission, 243 Or. 158, 411 P.2d 1015 (1966); Tate v. Connel, 3 Ariz.App. 534, 416 P.2d 213 (1966); Clark v. Continental Illinois National Bank & Trust Company, 68 Ill.App.2d 16, 215 N.E.2d 816 (1966); Kemp v. Lormer, 87 Ohio App. 307, 94 N.E.2d 702 (1949); McKoy v. Enterkin, 181 Ga. 447, 182 S.E. 518 (1935); Choy v. Otaguro, 32 Haw. 543 (1932); Howard...