McGill v. Miller , 183 Ark. 585 ( 1931 )

Mr. Chief Justice HART, Mr. Justice BUTLER and the writer agree that the case should be reversed and remanded for the error of the trial court in refusing to admit certain testimony, but we do not agree with the majority in holding that the case should be dismissed. Mr. McGill testified that he had moved to Little Rock the latter part of March, 1930, but he also testified that he owned his home in Lafayette County and that he had lived in Lafayette County for about 28 years; that his family was still living in the home in Lafayette County not only at the time of the service of the summons but also at the time of the trial. He also testified that his family continued to live in Lewisville, Lafayette County, until he could sell his home.

According to his testimony, he did not intend to move his family to Little Rock until he could sell his home. He served on the jury in Lafayette County in March, 1930. He testified at the time he was taken on the jury that he was a citizen of Lafayette County. He testified that he had decided in the early part of the year to move to Little Rock. If he had contemplated moving away from a home where he had lived for 28 years, is it not reasonable and probable that some member of the jury with whom he served would have known about it and would have been called to testify?

So far as the evidence shows none of his neighbors nor any other person ever heard of his intention to move. There is no evidence that he ever told any one. There is no evidence that he offered his home for sale or that he advertised it for sale or that he arranged with or spoke to any real estate agent or other person to try to sell his home.

He says he voted in Pulaski County after he came to Little Rock, but he voted for State officers only. He did not vote for county officers. He testified that, if he had been in Lafayette County, he would have voted there. I think his vote in Pulaski County may be explained by saying that many citizens think they have a right to vote for the State officers anywhere they may be in the State.

The majority opinion states that he testified that he had not lived in Pulaski County six months when he voted there. He did not state this, however, as an explanation of why he voted for State officers only. He had said nothing about this, but the appellant's attorney asked him after he had testified that he voted for State officers in Pulaski County and would have voted in Lafayette County if he had been there: "If he had lived in Pulaski County six months when he voted?" and he said "No"; but he was not asked if that was the reason he voted for State officers only. No one testified on this question but appellant McGill.

The only question is the intention and good faith of McGill. We recently said: "According to the testimony introduced by appellant, which must be regarded as disputed on account of the interest of the witnesses testifying in the result, and on account of the contradictory circumstances, etc." Walker v. Eller, 178 Ark. 183, 10 S.W.2d 14.

"It may be said to be a general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit or facts are shown that might bias his testimony, or from which an inference may be drawn unfavorable to his testimony or against the facts testified to by him, then the case should go to the jury." Skillern v. Baker,82 Ark. 86, 100 S.W. 764; Oyler v. Simple, 163 Ark. 620,260 S.W. 744; American Ry. Express Co. v. H. Rouw Co., 174 Ark. 6, 294 S.W. 416; Nelson v. Mo. Pac. R. Co.,172 Ark. 1053, 291 S.W. 66; Gibson Oil Co. v. Sherry,172 Ark. 947, 291 S.W. 66; Poinsett Lumber Mfg. Co. v. Traxler, 118 Ark. 128, 125 S.W. 522; Paragould M. Rd. Co. v. Smith, 93 Ark. 224, 124 S.W. 776; St. L. Sw. Ry. Co. v. Trotter, 89 Ark. 273, 116 S.W. 227; Hankinson Lynn Gas, etc., Co., 175 Mass. 271, 56 S.W. 604; Bank of British North America v. Delafield, 81 N.Y. 410,27 N.E. 797.

"A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and frequently outweighs opposing direct testimony." 23 C.J., p. 48.

There is of course no dispute about McGill being interested in the result of the suit. He was a defendant and was sued for $35,000 damages. Authorities above hold that, if he was interested in the result of the suit, his testimony must be regarded as disputed, that it is a question of fact for the jury. Not only was Mr. McGill interested, but the circumstances at least tend to show that he had not abandoned his home in Lewisville. Before the statute permitting parties to suits to testify, the intention and good faith of a party could only be proved by circumstances. Since the enactment of the statute the party may testify as to his intention, but his testimony is regarded as disputed. That is, it is a question of fact for the jury. In the very nature of things it is impossible to contradict by direct testimony the statement of a witness as to his intention or good faith. The testimony of an interested party as to his intention or good faith, although uncontradicted, is not conclusive, and, if inconsistent with his conduct, may be rejected. 10 R.C.L. 1107; Shepherd v. Morgan, 108 N.Y.S. 379.

The majority opinion says that the case of DuVal v. Johnson. 39 Ark. 182, is not controlling here "for the court there stated the fact to be that the defendant left this State without any intention of changing his residence." Johnson went to California in April, 1854, and returned in August 1857. He was gone more than three years. The summons in that case was served at his residence in Sebastian County, Arkansas. It is true that the court said that defendant left this State without any intention of changing his residence, but it also said: "There might perhaps be something serious in this objection, if he had taken his whole family away and closed the house, or rented it to a neighbor, and the notice had been affixed to the door or otherwise left there."

If Mr. McGill had taken his family with him to Little Rock and advertised his home for sale, or placed a "For Sale" sign on the house and had conducted himself in such a manner that the fact of his intention to change his residence would have been known to his neighbors, we would have a very different question. It would still, however, be a question of fact.

The opinion of the majority says that whether McGill had changed his residence is a question of law, and for that reason this court is not bound by the trial court's decision. It may be conceded that, if it is a question of law and not a question of fact, we would not be bound by the decision of the trial court. I think the declaration of the majority is in direct conflict with every former decision of this court on this question. In the limited time I have had I have been unable to find any decision of this court that supports the declaration of the majority that this is a question of law, and none are cited in the opinion. The majority opinion cites 9 R.C.L. 542 on the question of intent to change domicile. In the same volume, page 556, the question of evidence is discussed. It is there said: "The determination of domicile, it has been said is usually a mixed question of law and fact, while the question as to residence is one of fact alone." 9 R.C.L. 557.

In the case of DuVal v. Johnson, supra, the court held that residence and usual place of abode meant the same thing. Therefore the question of one's usual place of abode is a question of fact alone. If it is a question of fact, and I think, under all authorities including our own decisions, it is, then the finding of the trial judge is conclusive.

There is an unbroken line of decisions of the court to the effect that the testimony of a party to a suit is not to be considered as uncontradicted and also that the finding of the trial judge on questions of fact is as conclusive as the finding of a jury. The following are a few of the cases so holding: Vinson v. Wooten 163 Ark. 170,259 S.W. 366; Creasey Grocery Corp. v. So. Mercantile Co.,169 Ark. 1046, 277 S.W. 513; Staggs v. Joseph, 158 Ark. 133,249 S.W. 566; St. L. S.W. Ry. Co. v. Mulkey, 100 Ark. 71,139 S.W. 643, Ann. Cas. 1913C, 1339; Little River Co. v. Buron, 165 Ark. 335, 265 S.W. 61; Cody v. Pack,135 Ark. 445, 205 S.W. 819; Matthews v. Clay County,125 Ark. 136, 188 S.W. 564; Jones v. Glidewell, 53 Ark. 161,13 S.W. 723, 7 L.R.A. 831; Schuman v. Sanderson,73 Ark. 197, 83 S.W. 940. There are many other decisions of this court to the same effect, and I know of none to the contrary. It is not a question of what we believe or what we would find. The finding of the trial judge is conclusive here.

The trial judge sees the witness, observes the demeanor of the witness on the stand, his willingness or unwillingness to testify, and has many opportunities to judge the credibility of the witness that this court does not have. The trial judge must take all these things into consideration, as well as the interest of the witness in the result of the lawsuit, in passing upon the credibility of the witness and the weight to be given to his testimony.

I think we are bound by the finding of the trial judge, and that the case should be remanded for a new trial.

Mr. Chief Justice HART and Mr. Justice BUTLER agree with me in the conclusions herein reached.