Wilson v. Thurston National Insurance

475 S.W.2d 881, 251 Ark. 929, 1972 Ark. LEXIS 1809
CourtSupreme Court of Arkansas
DecidedFebruary 7, 1972
Docket5-5777
StatusPublished
Cited by5 cases

This text of 475 S.W.2d 881 (Wilson v. Thurston National Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Thurston National Insurance, 475 S.W.2d 881, 251 Ark. 929, 1972 Ark. LEXIS 1809 (Ark. 1972).

Opinion

John A. Fogleman, Justice.

Appellant brought suit against appellee to recover for an alleged mysterious disappearance of a woman’s diamond ring and other items of jewelry from his home at 833 West Sycamore in Fayetteville. Appellee’s policy insuring against theft and mysterious disappearance of personal property was issued on August 31, 1968, and was in full force and effect at the time of the alleged loss. This appeal comes from a judgment based upon a jury verdict against appellant.

At the time of the alleged loss, appellant was married to Judith Wilson. They were having marital difficulties, and appellant took their minor child to Pennsylvania so that he could counsel with relatives. While in Pennsylvania, appellant received a call from his wife advising him of tíre loss of the jewelry. He said that he instructed her to tell anyone who needed to be told about the loss. He testified that the call came on July 23. He returned to Fayetteville on July 30. He said that he and his wife then went to the police station in Fayetteville and submitted a list of the missing items. Appellant had last seen the jewelry in a dresser drawer in his home when he left Fayetteville on July 15 or 16.

The principal item involved was the diamond ring, alleged to be of the value of $2,500. Appellant had given the ring to his wife. All of the jewelry belonged to her. He claims the right to recover under the terms of a property settlement with his wife incident to a divorce granted September 9, 1970. A previous loss of the ring had been reported, but the ring was recovered before any claim was paid.

Judith Wilson testified about the loss. She said that she lived at the Sycamore address with her husband and a friend named Sue Koppa. She thought the jewelry was stolen on July 22, 1970. On that night, she made her home available through a committee to anyone attending a “rock” concert at the University of Arkansas. She said that she did not stay at home that night, but spent the night with this same Sue Kóppa at the latter’s house on Oakland Street. She testified that she returned home the next day, discovered the loss, reported it to the police and her husband, checked several pawn shops and tried to ascertain the names of persons who might have stayed at her home. She said that friends visited the Wilson home frequently.

Appellee denied liability under the terms of the policy, and alleged that the contract was breached by the insured’s failure to give it and the police prompt notice and to name the persons visiting in the home at the time of the disappearance of the jewelry.

Appellant’s first point for reversal is based upon interrogation of Judith Wilson on cross-examination about her associates and their use of drugs. Without detailing her testimony, we can say that it had an important bearing upon the critical issues, i. e., whether there was a mysterious disappearance of the jewelry under the terms of the policy, whether the matter was timely reported and whether she, as the owner of the property and an insured under the policy, had cooperated with the police. Some of her testimony was in direct conflict with that of police officers who testified. She was the only person who knew anything of the circumstances pertaining to the disappearance of the jewelry. As a result, her credibility may well have been the most important matter for jury consideration.

While appellant asserts that the court’s error lay in admitting Judith Wilson’s testimony about use of drugs by her and her associates, we do not take this to be the only effect of the cross-examination and the court’s rulings. Before the interrogation of which complaint was made, the witness had, on direct examination, represented her open-end offer of a night’s lodging to whoever among the hundreds of concert attendants might accept to be similar to that extended when a church brings visitors to town. On cross-examination she explained her actions by saying that she was a Christian and a good person, that a Christian loves and trusts people and that she trusted the unknown young people who would be coming to her house. She analogized the situation to the occasions when, as a Girl Scout, a complete stranger who was also a Girl Scout came to town and stayed with her. Thereafter, appellee’s attorney commenced a course of inquiry about possible visitors to the Wilson house. The witness identified David Peters as one of her friends and Ron Kirby as another. She denied knowing Roger Dowell, but admitted knowing Joe Sanders, while disclaiming him as a friend.

After she stated that the Wilson house was open to her friends, the witness responded in the negative to inquiries whether her friends had used drugs there. The court sustained objections to questions whether some of these friends had been arrested for illegal possession of drugs, and whether they were convicted on such a charge. After an objection to a question whether David Peters, Ron Kirby and Sue Koppa had been known to use drugs had been overruled, she responded that they had. She also answered in the affirmative an inquiry whether she had used drugs, after an objection had been overruled. She then stated that she may have used drugs once before the “theft,” but her objection to a question about the kind of drugs was sustained.

Of course, because of lack of prejudice, reversible error cannot be predicated upon those questions to which the witness gave negative answers or the court sustained objections without any answers having been given. Leonard v. State, 106 Ark. 449, 153 S. W. 590; Carr v. State, 81 Ark. 589, 99 S. W. 831. This leaves only the questions and answers with reference to the witness’ use of drugs and her knowledge of the use of drugs by her acquaintances. We have long recognized that a wide latitude of cross-examination should be permitted to elicit facts contradicting the witness’ direct testimony or impeaching his credibility. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795. Undue limitations imposed by the court constitute an abuse of discretion. Washington National Insurance Co. v. Meeks, 249 Ark. 73 (1970), 458 S. W. 2d 135. The trial court’s exercise of discretion will not be disturbed on appeal unless there is an abuse. Clark v. State, 246 Ark. 1151, 442 S. W. 2d 225. It is proper to permit inquiry of a witness as to his residence, habits, antecedents and associations. Willis v. State, 220 Ark. 965, 251 S. W. 2d 816; Rayburn v. State, 200 Ark. 914, 141 S. W. 2d 532; Schooley v. State, 176 Ark. 895, 2 S. W. 2d 67; Benton v. State, 78 Ark. 284, 94 S. W. 688; Little Rock Vehicle & Implement Co. v. Robinson, 75 Ark. 548, 87 S. W. 1029. Most of the inquiries to which objection was made are collateral, so further pursuit of the matter, particularly the introduction of contradictory evidence, would have been foreclosed, but no such attempt was made here, so Ark. Stat. Ann. § 28-707 (Repl. 1962) is not applicable. There was not at any time any objection on the ground of self-incrimination.

In view of the fact that the witness’ credibility was probably the most critical factor in the case and the manner in which she characterized her own actions, we cannot say that the trial judge permitted too much latitude in cross-examination. We certainly could not say that he abused his discretion.

Appellant also contends that there was reversible error in permitting Bill Brooks, a police officer, to testify by deposition that he received a telephone call from Mrs.

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475 S.W.2d 881, 251 Ark. 929, 1972 Ark. LEXIS 1809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-thurston-national-insurance-ark-1972.