{ "id": 1691634, "name": "Ark. State Highway Comm. v. Kennedy", "name_abbreviation": "Ark. State Highway Comm. v. Kennedy", "decision_date": "1961-09-18", "docket_number": "5-2358", "first_page": "844", "last_page": "849", "citations": [ { "type": "official", "cite": "233 Ark. 844" }, { "type": "parallel", "cite": "349 S.W.2d 133" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "39 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898655 ], "opinion_index": 0, "case_paths": [ "/ark/39/0167-01" ] }, { "cite": "256 S. W. 2d 738", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "221 Ark. 845", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656469 ], "opinion_index": 0, "case_paths": [ "/ark/221/0845-01" ] }, { "cite": "230 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1700150 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/230/0287-01" ] }, { "cite": "226 Ark. 1037", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726416 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/226/1037-01" ] }, { "cite": "147 S. W. 440", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351974 ], "opinion_index": 0, "case_paths": [ "/ark/103/0405-01" ] }, { "cite": "231 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697124 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/231/0265-01" ] }, { "cite": "228 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717269 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/228/0008-01" ] }, { "cite": "110 S. W. 2d 516", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 884", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725296 ], "opinion_index": 0, "case_paths": [ "/ark/194/0884-01" ] }, { "cite": "11 S. W. 418", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "51 Ark. 324", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722616 ], "opinion_index": 0, "case_paths": [ "/ark/51/0324-01" ] }, { "cite": "213 Ark. 721", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1466988 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0721-01" ] }, { "cite": "26 S. W. 2d 1107", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "181 Ark. 626", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724084 ], "opinion_index": 0, "case_paths": [ "/ark/181/0626-01" ] }, { "cite": "174 S. W. 810", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "117 Ark. 655", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "12 S. W. 203", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "52 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913416 ], "opinion_index": 0, "case_paths": [ "/ark/52/0120-01" ] }, { "cite": "23 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1866063 ], "opinion_index": 0, "case_paths": [ "/ark/23/0050-01" ] }, { "cite": "70 S. W. 2d 1034", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 133", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425609 ], "opinion_index": 0, "case_paths": [ "/ark/189/0133-01" ] }, { "cite": "32 S. W. 2d 313", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389762 ], "opinion_index": 0, "case_paths": [ "/ark/182/0533-01" ] }, { "cite": "20 S. W. 2d 614", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "180 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393548 ], "opinion_index": 0, "case_paths": [ "/ark/180/0019-01" ] } ], "analysis": { "cardinality": 590, "char_count": 9497, "ocr_confidence": 0.509, "pagerank": { "raw": 5.240038239573861e-07, "percentile": 0.941168577781948 }, "sha256": "b4520e13f1757c0b8cb810f946ead97fe02658141f413833ebdb9f73f7994d56", "simhash": "1:967c0ccad61e8d8d", "word_count": 1644 }, "last_updated": "2023-07-14T17:50:46.694457+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bohlinger, J., not participating." ], "parties": [ "Ark. State Highway Comm. v. Kennedy." ], "opinions": [ { "text": "Jim Johnson, Associate Justice.\nThis is an action in eminent domain brought by appellant, Arkansas State Highway Commission against appellees, G. B. Kennedy, et al, for the acquisition of an easement for highway purposes across .427 acres of land owned by appellees. This land was part of a larger tract of 4.5 acres.\nAppellant filed a Complaint and Declaration of Taking and deposited $3,950, an estimated just compensation for the property in question. Trial was held in Jackson Circuit Court on April 21, 1960. Nine witnesses testified as to the damages suffered by appellees. The jury returned a verdict in favor of appellees in the amount of $11,154.20.\nOn May 5, 1960, appellant-plaintiff filed a Motion for New Trial based on the grounds that one of the jurors (O. E. Guinn, Jr.) had been subpoenaed to serve in a prior matter and had failed to disclose this on voire dire and that O. E. Guinn, Jr. was further disqualified to serve on the jury because he was an employee of W. B. Pratt, one of the witnesses as to value, and that there was no substantial evidence to support the verdict of the jury. The trial court overruled appellant\u2019s motion for a new trial and this appeal followed.\nFirst, appellant seeks reversal because O. E. Guinn, Jr., a petit juror, was disqualified to serve on the jury.\nAppellant bases this argument on the fact that Guinn was subpoenaed in another case in the same term of court and further that Guinn was an employee of the Northeast Arkansas Investment Company whose principal stockholder was W. B. Pratt, a real estate agent of Jackson County, who testified as to the value of appellees\u2019 property as taken by the Highway Commission.\nThe record reflects that Guinn testified \u201cthat he had no interest in this lawsuit; that he never had any discussion with any of the witnesses as to the facts and appraisal figures; nor was he subpoenaed in this case.\u201d\nThe record further reflects that appellant\u2019s counsel knew, or should have known, who the jurors were since he had the same opportunity of examination of the jury list or examination on voir dire and he had the same opportunities of examining the list of witnesses subpoenaed for trial in tbe Circuit Court since be, like other counsel, was furnished with such a list by the clerk of the court. Juror Guinn\u2019s testimony indicates he was a competent, unprejudiced and fair juror.\nUnder our statutes, as well as the practice in this State, it is too late after the rendition of a verdict, to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain his disqualification and to prevent his selection as a juror. See: Missouri Pacific Railroad v. Bushey, 180 Ark. 19, 20 S. W. 2d 614.\nAppellant relies on Ark. Stats., \u00a7 39-103, which is as follows:\n\u201cWitness in cause \u2014 Person expressing opinion\u2014 Disqualification. \u2014 No witness, or person summoned as a witness in any civil cause, and no person who has formed and expressed an opinion concerning the matter in controversy in any such suit, which may influence the judgment of such person, shall be sworn in the same cause as a juror.\u201d\nHowever, Ark. Stats., \u00a7 39-115, reads as follows:\n\u201cVerdict unaffected by juror\u2019s lack of disqualification. No verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required in this chapter; nor shall exceptions be taken to any juryman for that cause after he is taken before the jury and sworn as a juryman.\u201d\nThis latter statute applies to both criminal and civil cases. See: Missouri Pacific Railroad v. Bushey, supra, and Fones Bros. Hardware Co. v. Mears, 182 Ark. 533, 32 S. W. 2d 313. Section 39-103, Ark. Stats., has no application in this particular case for the reason that the juror himself, when examined by the court, showed clearly that he had not formed or expressed an opinion, nor would he have any.\nIn Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034, this Court said:\n\u201cBut if the defendant in a criminal case, or either party to a civil case, wish to raise the question of a juror\u2019s eligibility, he must ask the specific question upon the voir dire examination, and, if he does not do so, the right to raise the question is waived, and cannot be raised after the jury has been sworn or a verdict has been returned.\u201d\nSee also: Daniel v. Guy, 23 Ark. 50; Brown v. St. Louis, Iron Mountain & Southern Railway Co., 52 Ark. 120, 12 S. W. 203; Cureton v. State, 117 Ark. 655, 174 S. W. 810.\nSecond, appellant complains in points 2 and 3 that the court erred in admitting the testimony of witness Bert Gibson as to the value of the property taken and/or damages as a result of the taking and contends that there is no substantial evidence to uphold the verdict.\nLet us first view the following cardinal principles:\n\u201cIn testing the sufficiency of the evidence to support the verdict we must view it in the light most favorable to appellee.\u201d Malvern and Ouachita River Railroad Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334.\n\u201cWhen a verdict is sustained by competent evidence, we do not interfere.\u201d Railway v. Combs, 51 Ark. 324, 11 S. W. 418.\n\u201cWhere there is any evidence of a substantial nature, which, by positive statement or reasonable inference, when given its strongest probative value, tends to support the finding of the jury, the verdict then will be sustained, although from the record presented to this court, it might seem to be \u00bfgainst the preponderance of the credible evidence.\u201d Missouri Pacific Railroad Company v. Henderson, 194 Ark. 884, 110 S. W. 2d 516.\n\u201cJurors are accorded great latitude in considering testimony relative to damage.\u201d Ark. State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330; Arkansas State Highway Commission v. Muswick Beverage & Cigar Co., 231 Ark. 265, 329 S. W. 2d 173.\nTo completely abstract here all of the testimony relating to the points under consideration would unduly extend this opinion but let us look briefly at the evidence presented to determine whether or not there was substantial evidence to support the verdict.\nThere is no dispute about the fact that this strip taken by the Highway Department took off approximately 50 per cent of appellees \u2019 place of business. There is no dispute that the taking took sufficient amount of appellees\u2019 garden so that it was impossible to cultivate it. There is no dispute that the taking completely ruined the front yard of appellees\u2019 home.\nThe damages estimated by appellees\u2019 witnesses ranged from $13,212 to $16,000. Two witnesses who were employed by the Highway Department testified for appellant, one giving his estimate of damages at $3,950, and the other at $3,850. The landowners themselves detailed their property before the taking, including the improvements that were on the property, and based the amount of their damages on their knowledge of the fair market value of similar property in the community.\nJ. N. Anderson, a lay witness for appellees, stated he had lived in the community 33 years and had been in timber and farming business and had general knowledge of the value of property in that area.\nE. M. Fisher, another lay witness for appellees, stated he had lived in the community 25 years, runs a grocery and service station 1/2 mile from the Kennedy property, and testified as to his familiarity with the fair market value of similar properties.\nBert Gibson, another lay witness for appellees and whose testimony appellant contends should have been stricken from the record, according to our view competently testified that he had recently purchased property in the area and knew the value of such property from having made inquiry for his own benefit. See: Ft. Smith & Van Buren Dist. v. Scott, 103 Ark. 405; 147 S. W. 440; Housing Authority of Little Rock, Ark. v. Winston, 226 Ark. 1037, 295 S. W. 2d 621.\nJoseph. Stafford, witness for appellees, stated he had been in the real estate and insurance business for ten years.\nDewey Buffington, witness for appellees, stated he had been in the real estate business five years.\nW. B\u00bb. Pratt, witness for appellees, lives in Newport, has been in the real estate business five years and based his figure on the location of the property and the improvements.\nAll of the witnesses properly testified as to the value of the property before the taking and the value after the taking. See: Ark. State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81.\nWe said in Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738: \u201c\"Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based.\u201d And in St. Louis, Arkansas and Texas Railroad v. Anderson, 39 Ark. 167, we further said:\n\u201cThe question whether a witness has sufficient knowledge concerning the value of property to give him a definite opinion on the subject is a matter, to some extent, within the sound discretion of the trial judge, and this Court will not reverse for an alleged error in this respect unless an abuse of such discretion appears.\u201d\nFollowing the principles set out above we find no abuse of discretion, and that there is substantial evidence to support the verdict.\nAffirmed.\nBohlinger, J., not participating.", "type": "majority", "author": "Jim Johnson, Associate Justice." } ], "attorneys": [ "Dowell Anders <& Thomas B. Keys, for appellant.", "Pickens, Pickens & Boyce, for appellee." ], "corrections": "", "head_matter": "Ark. State Highway Comm. v. Kennedy.\n5-2358\n349 S. W. 2d 133\nOpinion delivered September 18, 1961.\nDowell Anders <& Thomas B. Keys, for appellant.\nPickens, Pickens & Boyce, for appellee." }, "file_name": "0844-01", "first_page_order": 866, "last_page_order": 871 }