Opinion
Robert R. Cloar, Fort Smith, for appellants.
Toni S. Nolan, Warners&sSmith by L. Cody Hayes, Fort Smith, for appellees.
WRIGHT, Chief Judge.
The six appellees were each awarded judgment and lien foreclosure for labor performed in the construction of a house for appellants. The aggregate amount of the judgment is $1825.12, and appellants bring this appeal.
Appellees Lee Roy Carter and Alvin Long did not appear and testify at the trial, and appellants contend the court erred in denying appellants' motion to dismiss as to the two absent plaintiffs at the close of plaintiffs' case. Appellants argue there was a lack of evidence to support any judgment for the absent plaintiffs, and point out the requirement of Rule 602, Uniform Rules of Evidence, that a witness must have direct knowledge of a matter to which he testifies. Appellants also point to the rule announced in Starnes v. Andre, 243 Ark. 712, 421 S.W.2d 616 (1967), that "Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts."
Appellants admitted the two appellees who did not testify worked on the house and had not been paid. Also, appellee Carl Carter who was in charge of the work performed by appellees testified that Lee Roy worked 9 hours on the house while the witness was present, and that Alvin Long worked a total of 41 3/4th hours. Neither had been paid. Carl Carter was not present part of the time when Alvin Long worked, but Long reported his hours to the witness. The witness recorded the hours on a log record which was lost prior to the trial. We conclude the court properly denied appellants' motion to dismiss the complaint as to the two plaintiffs who failed to testify.
Appellants next argue the court erred by admitting testimony based on a lost or destroyed document.
The plaintiffs' respective claims were based on hours each worked times the rate of pay. Appellee Carl Carter, who was in charge of the work, testified he kept a record of each man's hours on a daily basis, and he took the record to the attorney when he arranged for the filing of the suit. Carl Carter was later involved in a divorce suit, and the record of the hours appellees worked became lost or destroyed. Carter searched for the record but was unable to find it. However, each of the appellees, except Long and Carter, testified from personal knowledge as to the hours worked. Appellants were about the job every day, did not refute the number of hours worked by any of the appellees, and appellants kept The court did not err in permitting testimony of the fact that a record had been kept by Carter of the hours worked by each of the appellees, that he recalled the aggregate time worked by all of the men was 3263/4th hours, that the record was made available to the attorney for the preparation of the suit and was later lost or destroyed. However, we do not conclude from the admission of that evidence that the court relied in its findings upon oral testimony of what that record reflected as there was extensive testimony based upon personal knowledge and recollections of various witnesses to support the findings of the court.
Finally, appellants contend for reversal the court erred in finding appellees met the burden of proof.
In support of this contention appellants argue that neither Alvin Long nor Lee Roy Carter testified, and that Carl Carter testified he lost the record of the time the various appellees worked. However, the unrefuted testimony of Carl Carter corroborated by other testimony was substantial evidence to support the court's findings.
It is also argued Carl Carter admitted the men were not professionals and did the work while not on duty at their regular factory work. Appellants also point out a professional contractor testified the work could have been done in less than half the time and with good quality as opposed to poor workmanship.
Appellants daily observed the work as it progressed, made no objection to the quality of work until suit was filed, and the job was unfinished when appellees were told to leave the job. There was undisputed evidence the sheetrock work involved was slow and difficult because of the high cathedral ceilings and the rafters were improperly spaced. The court made no finding as to any deficiency in the workmanship, appellants filed no counterclaim for damages or set-off for any alleged defect in workmanship, and appellants have failed to demonstrate that the court erred in failing to make such finding.
Appellants also point to discrepancies in that appellee Binz testified he worked 83 hours rather than 833/4th hours as stated in the complaint, and that appellee Kennedy testified he worked 791/4th hours while the complaint stated he worked 761/4th hours. The court rendered judgment for Binz on the basis of 83 hours work in keeping with his testimony, and rendered judgment for Kennedy based on the lesser number of hours stated in the complaint rather than the higher number of hours he testified he worked.
Appellants further argue that Carl Carter requested pay for only $1,346.00 for all of the men, and that this impeached his testimony as to a larger amount owed. The evidence shows appellants refused to pay, and Carl Carter then offered to settle the bill for a total of $1,346.00. While there is some ambiguity in the testimony, there is substantial evidence to support the court concluding Carl Carter made the proposal in an attempt to compromise.
We do not reverse the trial court on a finding of fact unless the finding is clearly erroneous, and we conclude appellants have failed to show the findings of the court are clearly erroneous. Rule 52, Rules of Civil Procedure.
Affirmed.