Ferri v. Braun

Sam Robinson, Associate Justice.

On June 14, 1962, appellees, Earl T. Braun and his wife, Marie, filed this suit against appellant, Joe Ferri, alleging damages to Earl in the amount of $3,500.00, and damages to Marie in the sum of $9,900.00, growing out of an automobile collision. Appellant, Ferri, failed to answer within the prescribed time, and on August 6, 1962, the Brauns were awarded judgment for the total amount asked in the complaint.

On September 1,1962, within the proper time, Ferri filed notice of appeal. He also filed a designation of the record on appeal, designating the entire record filed with the Clerk, and a narrative statement as follows: "On the 9th day of July 1962 this cause was called on the docket by the Honorable Gr. B. Colvin, Jr., Circuit Judge, Chicot County, Arkansas, and noted that the defendant, Joe Ferri, had not filed Answer herein. The Sheriff of Chicot County, John H. Biggs, thereupon called to the bar of this Court, the defendant, Joe Ferri, three times to appear, and who appeared not, and thereupon Avithout any testimony being presented, rendered judgment as prayed in the complaint filed by the plaintiffs, Earl T. Braun and Marie R. Braun. There was no testimony presented by the plaintiffs herein, nor any witnesses in behalf of plaintiffs.” Ark. Stats. 27-2127.4 provides: "A party may prepare and file Avith his designation a condensed statement in narrative form of all or- part of the testimony, and any other party to the appeal, if dissatisfied with the narartive statement, may require testimony in question and answer form to be submitted for all or part thereof.”

The judgment provides, inter alia, that evidence was adduced by the plaintiffs and that there was proof that Earl T. Braun had been damaged in the sum of $3,500.00, and proof that Marie R. Braun had been damaged in the sum of $9,900.00. The judgment was for the respective parties in the sums mentioned.

There must be evidence to support an award of damages in a default judgment. Greer v. Newbill, 89 Ark. 509, 117 S. W. 531; Greer v. Strozier, 90 Ark. 158, 118 S. W. 400. Here, the judgment recites that there was proof of damages. In the narrative statement appellant says: “There was no testimony presented by plaintiffs herein, nor any witnesses in behalf of plaintiffs.” The real question is whether the parties are bound by the recitation in the judgment that there was proof of damages, or can appellant show, in the manner attempted here, that there is no substantial evidence to sustain the judgment.

Although the defendant, appellant, failed to file an answer, he had the right to cross-examine witnesses giving testimony as to damages and he had the right to introduce testimony in mitigation of damages. In other words, he had the right to contest the element of damages ; it necessarily follows that he has the right to question on appeal the sufficiency of the evidence to support the amount of damages awarded. In Clark v. Collins, 213 Ark. 386, 210 S. W. 2d 505, the court said: “In the early cases of Thompson v. Haislip, 14 Ark. 220, and Mizzell, et al. v. McDonald, et al., 25 Ark. 38, this court laid down the rule that in a hearing to determine the amount of damages after default, a defendant has a right to cross-examine the plaintiff’s witnesses and to introduce evidence in mitigation of damages. In the last case cited Chief Justice Walker, speaking for the court, said: As regards the first question, the defendants, by failing to plead in bar, confessed the plaintiffs’ right to recover damages, but not the amount of damages claimed in the declaration; because, if such is the effect of a judgment by default, then there would be no necessity for calling a jury to inquire of damages, and judgment would, without the intervention of a jury, be rendered for the amount of damages set forth in the plaintiff’s declaration. It must therefore follow, that although the assumpsit to pay for the goods, averred to have been sold and delivered is admitted by the default, and no longer an open question for contest, such is not the case as regards the amount of damages to be recovered. In the case of Thompson v. Haislip, 14 Ark. 220, this court recognized this rule, and held that upon a writ of inquiry of damages, the defendant had a right to cross-examine a witness introduced by the plaintiff, and that it was error to refuse such, permission. And we think that, upon principle, the decision in that case is alike applicable to this. The open question before the jury was as to the amount of the damages to be assessed, and if the defendant be permitted (as we have held he should be) to cross-examine a witness introduced by the plaintiff, for the purpose of reducing the amount of damages, we think, for the same reason and upon principle, he should be permitted to introduce evidence for the purpose.’ ”

In his narrative statement of the evidence, served on counsel for appellee along with the notice of appeal, appellant says there was no evidence of damages. This was just another way of saying there was no substantial evidence to support the judgment. In these circumstances, the appellee had the right to require that the evidence be supplied in question and answer form. But appellees did not avail themselves of the opportunity to make such evidence, if any, a part of the record; therefore, the record contains no substantial evidence to support the judgment.

Since the question of damages was apparently not fully developed, the cause will not be dismissed, but is reversed and remanded for new trial on the issue of damages.

McFaddin, J., dissents.