author: John I. Purtle, Justice.

text:
    Michael SANDERS v. STATE of Arkansas
    CR 82-144
    646 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      David H. White, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted by a jury in Fulton County and sentenced to forty years for rape and five years for burglary. On appeal he alleges the trial court erred in allowing the prosecuting attorney to improperly voir dire the jury. We do not find prejudicial error even though the conduct by the prosecuting attorney was out of line.

The only facts relevant to this opinion relate to voir dire of the jury by the state. Therefore, it will be necessary to set out part of the record as it occurred in the courtroom. The following is a part of the jury voir dire by the state:

State: Now, let me ask you this and let’s visit here just a minute. As His Honor has indicated to you, we’re dealing here with three separate charges in this, one of aggravated assault, one of burglary, and one of rape. Now, ladies and gentlemen, this is a series of serious crimes that have been committed right here in Salem, Arkansas, and I know that the first thing that runs across your mind is that when you sáy, well, that there has been a rape committed here in Salem, Arkansas, is that the same thing that runs across my mind or most people’s mind that live up here in the hills, you say, no, that just doesn’t happen here — (objection by defense)
Court: If you would, just get to your questions, Mr. Hively.
State: Yes, Sir, I’m just laying the foundation.
Court: Yeah. Well, go ahead.
State: And what I was getting at, ladies and gentlemen, is this. The people who enacted the laws of the State of Arkansas have said that, and I anticipate His Honor will so instruct you, that for the crime of rape, assuming that you find the defendant guilty — (objection by defense)
State: As I was saying, ladies and gentlemen of the jury, the people who enacted the laws of the State of Arkansas that we live by have said that a person’s home, the home that they live in, is their castle that they live in, and that if someone enters that home with the intention of committing a crime therein, that they should be charged for that and they said that is burglary, because you and me and everyone of us should be secure in our homes, and they said that the crime of burglary, if you find a defendant guilty of that, could carry a — (objection by defense)

Several such rambling discourses were made despite objections by the defense. They were not in the form of questions to the jury but were the type statements usually made in opening statements or closing arguments.

The purpose of voir dire examination is (1) to discover if there is any basis for challenge for cause, and (2) to gain knowledge for the intelligent exercise of peremptory challenges. A.R.Cr.P. Rule 32.2. The extent and scope of voir dire is generally within the sound discretion of the trial judge. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979). Unless the trial court’s discretion is clearly abused it will not be reversed on appeal. Finch v. State, 262 Ark. 313, 556 S. W.2d 434 (1977). The parties cannot use voir dire solely for the purpose of getting acquainted with the jury, nor is voir dire an unlimited proceeding. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). The trial court, however, should not unduly limit the extent of voir dire. Fauna v. State, supra. Although the trial court permitted the prosecuting attorney to go beyond the purpose of voir dire, there was no motion for a mistrial or admonition, therefore, we do not find prejudicial error.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jasper BALL v. STATE of Arkansas
    CR 82-147
    646 S.W.2d 693
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983
    [Rehearing denied March 28, 1983.]

      David L. Gibbons, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from a conviction by the Madison County Circuit Court wherein the appellant was convicted of burglary and theft of property as well as being an habitual offender.

We are presented with only one argument on appeal. Appellant contends that the court failed to apply the provisions of Ark. Stat. Ann. § 41-605 (Repl. 1977), relating to psychiatric examination of a defendant, to the facts of the present case. We feel that the court substantially complied with the provisions of this statute and therefore will not reverse the decision of the trial court.

The facts of the case are not in dispute and will therefore not be set out in this opinion. The single issue is the fitness of the appellant to stand trial. Ark. Stat. Ann. § 41-605 provides that when there is reason to doubt the fitness of the accused to proceed, the court shall enter an order directing that the accused be examined by a local psychiatrist or committed to the state hospital. Upon completion of such examination a report shall be submitted. The report is to follow Ark. Stat. Ann. § 41-605 (4) which states:

The report of the examination shall include the following:
(a) a description of the nature of the examination;
(b) a diagnosis of the mental condition of the defendant;
(c) an opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense; '
(d) an opinion as to the extent,, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the conduct alleged; and
(e) when directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.

The court ordered the appellant to be examined by Dr. Travis W. Jenkins of the Ozark Guidance Center. A report in the form of a two paragraph letter was sent to the trial judge. The letter states:

I have seen Mr. Ball in psychiatric evaluation and mental status examination. In my opinion he is competent to stand trial. There is no evidence to suggest that he is psychotic at the time of my interview with him. Mr. Ball does have a past history of alcoholism and being out of touch with reality when drinking. Therefore, at the time of his alleged offense, he may have been under the influence of alcohol and had disorder of thinking at that time, but in my opinion he was not psychotic to the degree of criminal irresponsibility.
Alcoholism is a definite complicating factor in this situation, and an alcohol treatment program might be of value. If further information is needed, please feel free to contact me.

The appellant objected to this report as being insufficient and not in compliance with the provisions of the statute. The trial court apparently agreed and wrote the doctor a letter asking him to furnish a supplemental report along the lines of the requirements of the statute. The appellant was not further examined by Dr. Jenkins but a supplemental report was submitted. The supplemental report stated: “. . . Mr. Bell is able to understand the proceedings against him, and it is also my opinion that he is able to assist in his own defense.” The letter further stated, as had the first one, that appellant was not psychotic to the degree of criminal irresponsibility. The final diagnosis was (1) alcohol abuse and (2) chronic schizophrenic disorder.

The appellant also attacked this supplemental report as being less than what is required by the statute in question. The trial court overruled the objection and conducted the trial. Dr. Jenkins appeared at the trial and testified that in his opinion the appellant suffered from mental disease which he described as “chronic schizophrenia with paranoia features.” The doctor’s opinion at the trial was to the effect that Ball did have a mental disease as above stated. In reaching a decision on the issue presented on appeal, however, we do not consider testimony presented at the trial.

The first requirement of the report by a psychiatrist is that it give a description of the nature of the examination. Dr. Jenkins stated that he saw the appellant in “psychiatric evaluation and mental status examination.” We think this substantially complies with the requirement that the psychiatrist include in his report the nature of the examination. The second requirement is that there be a diagnosis of the mental condition of the defendant. The report clearly stated that the doctor considered appellant competent to stand trial and did not find him psychotic at the time of the examination. The report further reflects that in the doctor’s opinion appellant was not psychotic to the degree of criminal irresponsibility. The doctor found appellant to be suffering from alcohol abuse and paranoid schizophrenia. The third requirement is that the report contain an opinion as to appellant’s capacity to understand the proceedings against him and to assist effectively in his own defense. Dr. Jenkins’ letter specifically included findings that he was competent to do both. The fourth requirement is that the report contain an opinion as to the extent, if any, to which the capability of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the conduct alleged. The excerpts of Dr. Jenkins’ opinion previously set out clearly reveal that the examining psychiatrist felt appellant was able to conform his conduct to the requirements of law and that he was able to appreciate the criminality of his conduct. The report is not in the exact terms which are set out by the statute but the requirements are substantially complied with by the report. Finally, the report, when directed by the court, shall contain an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged. The reports state that appellant was not psychotic to the degree of criminal irresponsibility. The first report stated that at the time of the offense the appellant may have been under the influence of alcohol and had some disorder of thinking. It was the opinion of Dr. Jenkins that he was “not psychotic to the degree of criminal irresponsibility.”

It is clearly the intent of the statute in question to prevent the trial of any person while incompetent to understand the nature of the procedures involved and to assist in the defense thereof. The statute is also designed to prevent the trial of a person who lacks the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the offense. The United States Supreme Court has adopted these basic requirements. Drope v. Missouri, 420 U.S. 162 (1975). It is true that this court reversed a conviction when the trial court failed to make the determination required by this statute. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). In Gruzen, the trial court refused to rule on the issue. In the present case the court did rule on the question and the result was the appellant was required to stand trial. The ruling of the trial court did not prevent the appellant from attempting to establish his incompetency at the time of the trial or at the time of the alleged commission of the offense. This was attempted in the cross-examination of Dr. Jenkins. The burden in this case is upon the party claiming the defense. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). We think that taken together the two reports by the psychiatrist substantially complied with the law, and the trial court was not in error in requiring appellant to proceed to trial.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    William Claude HUNTER v. STATE of Arkansas
    CR 82-154
    645 S.W.2d 954
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      Joel W. Price, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

This appeal raises issues of sentencing in criminal cases. On February 9, 1982, the State filed an amended petition alleging that appellant had violated the terms of his probation in three cases and that he should be sentenced to imprisonment. A hearing was held on the petition and the trial court found that in each of the three cases the petition to revoke should be granted. It is the court’s sentencing of appellant in these cases that serves as the basis of this appeal. The Court of Appeals certified the matter to this Court since it involves interpreting acts of the General Assembly. Rule 29 (1) (c).

The appellant contends that he is entitled to know the effect of his multiple sentences and that the trial court has entered such inconsistent and unauthorized sentences that no one knows what his sentences are and, he argues, we must void all sentences. The argument is meritorious but we decline to void all of the sentences.

Review is difficult in this case because of the failure of the trial court to enter orders as required by statute. In some of the sentences from which appellant now appeals there is no evidence of an original judgment of conviction and sentence and we are not afforded a transcript of the original pronouncement of sentence. In one of the cases the docket sheet reflects one sentence, the written statement given by the trial court to the appellant reflects another, the certified copy of the order of commitment reflects yet another and an instrument executed by the trial judge and styled “Statement of the Evidence — Petition to Revoke Hearing” reflects still a different sentence.

The appellant is correct in contending that he is entitled to know the effect of his sentences. Ark. Stat. Ann. §§ 43-2305, 43-2602, 43-2608 and 41-1203 (Repl. 1977) specifically require that the trial court make clear the judgment of sentence. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Sentencing procedures are governed by statute. Holden v. State, 156 Ark. 521, 247 S.W. 768 (1923). No one may be sentenced other than in accordance with the criminal code. Ark. Stat. Ann. § 41-803 (Repl. 1977); Culpepper, supra. A trial court is to follow Title 43, Chapter 23 of the Arkansas Statutes in pronouncing sentence and judgment. See also A.R.Cr.P. Rule 36.4. The disposition of an adult offender is governed by Title 41, Chapter 8 of the Arkansas Statutes and suspension and probation are governed by Title 41, Chapter 12. A judgment of conviction and sentence is required to be entered in each case. Ark. Stat. Ann. § 43-2301 (Repl. 1977). Such a judgment is a final judgment, not an interlocutory order which is subject to change. The statute in effect on the date of the commission of the crime is the statute governing sentencing. Ark. Const, art. II, § 17; Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981).

Appellant contends that in case number CR 81-21 the trial court gave him one sentence and then erroneously superimposed an additional sentence. The contention is correct.

In case number CR 81-21 the record contains the Penitentiary Commitment which is a certified copy of the original judgment of conviction and sentence dated April 9, 1981. It provides:

This day comes the State of Arkansas by Ron Fields, Prosecuting Attorney, and comes the Defendant in proper person, in custody of the Sheriff and by his attorney, Sam Hugh Park and said Defendant having been arraigned and informed of the nature of the Information filed against him and of each charge contained therein the same being: BURGLARY (41-2002) CLASS B FELONY
Date of Offense JANUARY 5, 1981
entered a plea of (guilty) to each charge against him, and the Court having found the Information stated an offense, accepted his plea and found the Defendant guilty as charged. The Defendant was then asked if he had any legal cause to show why judgment should not then be pronounced, and none being shown:
It is therefore, considered, ordered and adjudged by the Court that the Defendant be remanded into the custody of the Arkansas Department of Correction to be confined at hard labor for the period of: THREE (3) YEARS.
Defendant is hereby given credit for 47 days as jail time and that the State of Arkansas do have and recover of said Defendant all the costs of this prosecution and have execution therefor . ..

On the same day the judge made the following docket entry: “Sentenced to three years, Arkansas Department of Correction withholding imposition of sentence for a period of four years.” On the same date the appellant was given a statement informing him of the terms of his suspension as follows: “You have been given a term of seven years with four suspended.” Eleven months later the court executed and placed of record an instrument entitled, “Statement of the Evidence — Petition to Revoke Hearing”, and it recites, “In CR 81-21, the defendant was sentenced to seven (7) years in the Department of Correction and imposition of additional sentence was withheld for an additional five (5) years. A certified copy of a second judgment of conviction and sentence reflects that on March 7, 1982, appellant was sentenced to seven years of imprisonment.

Between these inconsistent indications of the judgment of sentence, the certified copy of the original judgment is conclusive. While a docket notation is prima facie evidence of a judgment, Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980), it is not the entry of a final judgment. Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978). Thus the docket entry does not have the dignity of the certified copy of the judgment and, between them, the certified copy prevails. The statement given to appellant was given in an attempt to comply with the statute requiring that a defendant be notified of the conditions of suspension or probation, Ark. Stat. Ann. § 41-1203, and was never intended as a judgment. It is not shown to have been entered of record. Clearly the certified copy of the judgment prevails between these two instruments. The original 1981 judgment provided for a three year imprisonment and nothing more. Appellant went to the penitentiary and served his sentence. Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). The attempt in 1982 to increase punishment at a second sentencing was void. Easley v. State, supra. The appellant is correct in contending that the second sentence in case number CR 81-21 is void and must be reversed and dismissed.

Appellant next argues that the trial court erred in assessing a second sentence in case number CR 80-197. Again, the argument has merit. On August 26, 1980, after a plea, the docket notation is “Sentenced to Arkansas Department of Correction for a period of two years; two years suspended on condition to be admitted to the Board of Training School for an indefinite period of time. Sentenced under 46-910. To be released until time to be transported. $1,500 cash bond.” The court statement given to appellant provides: “Imposition of sentence is suspended for a period of two years.” On the same day, August 26, 1980, an instrument labelled “Order of Commitment” was issued under the style of the Circuit Court of Sebastian County and provides:

It is THEREFORE ORDERED, CONSIDERED, AND ADJUDGED BY THE COURT that William Claude Hunter, is a delinquent juvenile within the meaning of Act 451 of the Acts of Arkansas, 1975 because of the following reasons: Theft By Receiving (41-2206) Class C Felony.
Date of offense: April 29, 1980
Further, that said minor should be and hereby is committed to the Arkansas Division of Youth Services and said minor shall be under the exclusive custody and control of said Division until discharged.

The instrument is not signed by the judge but by a deputy clerk. The docket notations reflect that a Certificate of Assignment to the Youth Services Center, Pine Bluff, was entered on September 24, 1980, and that on November 24, 1980, a Notice of Eligibility Release from the Department of Human Services was received. In the instrument styled “Statement of the Evidence— Petition to Revoke Hearing” the trial court recited: “On August 26, 1980, the imposition of sentence for that offense [CR 80-197] was suspended for a period of two years. The defendant also received an indefinite term in the Boys Training School.” There is no evidence before us that a judgment was entered.

From all of the above it appears that appellant was given an indefinite sentence to the Arkansas Juvenile Training School and, at the same time, the trial court attempted to suspend imposition of sentence. The crime was committed on April 29, 1980, and the statutes then in effect, Ark. Stat. Ann. §§ 41-803 (4) and 41-1204 (Repl. 1977) did not authorize a concurrent imposition of an indefinite sentence along with a suspension of imposition of an imprisonment sentence. The trial court could have provided for a sentence to imprisonment followed by suspension as to an additional term of imprisonment, Ark. Stat. Ann. § 41-803 (4) (Repl. 1977) or it could have provided for suspension of an imposition of a sentence of imprisonment and as an additional condition require confinement in a detentional facility for up to 90 days. Ark. Stat. Ann. § 41-1204 (1), (3) (Repl. 1977). However, the trial court could not give an indefinite sentence coupled with a suspension of imposition of sentence. Thus, the court could validly grant one judgment or the other but not both. One judgment was the imposition of a sentence and the other was the suspension of the imposition of a sentence. The sentence imposed was served. We hold that when a court grants unauthorized dual judgments of sentence and one is imposed and served, and the other is the suspension of a sentence, there is an election by operation of law and the sentencing court has elected to order the sentence actually imposed. The other is void. Thus, the definite sentence to the Training School was valid and the suspension of the imposition of the sentence of imprisonment was void. Then, almost two years later at the revocation hearing, the trial court sentenced the appellant to three years additional imprisonment. This second sentence was also void. Easley v. State, supra. The second judgment of sentence in CR 80-197 is reversed and dismissed.

In case number CR 79-454 the appellant entered his plea and was given a statement which provides: “The court has not accepted your plea and instead has placed you on probation with all further proceedings postponed for three years conditioned upon your good behavior.” The court, as a matter of law, did accept the plea because the statutory form of probation ended local forms of court probation. English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981). The docket notation is “Def. is placed on three years probation and to pay restitution of $1,355.00 and is placed on Juvenile restituation program.” The record contains no evidence that a judgment of conviction and probation was pronounced or entered. There was no objection by appellant to the combining of probation and a juvenile program. In 1982, the trial court revoked the probation and sentenced the appellant to three years imprisonment. Appellant tacitly admits this sentence is valid in form but asks that we reverse it because, he argues, he was denied effective assistance of counsel. We decline to so hold. In order to raise this issue on direct appeal, evidence on the allegation must be contained in the record and the trial court must have been given the opportunity to rule on the issue. See, e.g., Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976). Appellant is aware of our cases and asks that we overrule them. We have recently reconsidered these cases and we are firmly convinced they are correct. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983). We affirm the judgment of conviction and sentence in case number CR 79-454.

Affirmed in part and reversed in part.


author: Steele Hays, Justice. Richard B. Adkisson, Chief Justice, John I. Purtle, Justice,

text:
    Billy W. HIVELY and Mary L. HIVELY, Individually and on Behalf of Their Son and Next Friend, Richard REINS, a Minor v. H. O. EDWARDS, M.D.
    82-82
    646 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983
    [Rehearing denied March 28, 1983.]

      Henry & Walden, by: Troy Henry, for appellants.

      Barrett, Wheatley, Smith 6- Deacon, for appellee.

      Adkisson, C.J., would grant rehearing.

   Steele Hays, Justice.

Bill and Mary Hively filed this suit on behalf of their eleven-year-old son, Richard, alleging medical malpractice by Dr. Harvey Edwards, appellee. On November 13, 1977, Richard suffered a fracture to bones of his right leg. Dr. Edwards set the fracture by closed reduction and applied a cast. The following morning Richard had a high fever and severe swelling of the leg. Fever, swelling and marked discoloration of the toes and foot persisted and a fasciotomy to combat the inflammation was done on November 16. On November 17 the youth was transferred to a Memphis hospital and amputation was narrowly averted. Treatment required several hospital stays and the final result was a severe and permanent injury, the injured leg being one and a half inches shorter, the right ankle being fused.

The Hivelys brought suit in 1979, claiming that Dr. Edwards was negligent in failing to diagnose an anterior compartment syndrome and by failing to take corrective measures promptly. There was forceful medical testimony that Dr. Edwards was negligent in diagnosis and in treatment, but this was disputed and the jury held for the defendant. Appellants ask us to reverse the trial court on several grounds, but we find no reversible error.

Appellants urge that they should have been permitted to ask Dr. Glen Dickson, a witness for the defense, whether he had previously reviewed medical records and written a report to St. Paul Insurance Company, giving his opinion of Dr. Edwards’ handling of the case. The issue came up during cross-examination of Dr. Dickson, who had seen Richard in consultation with Dr. Edwards. After establishing that Dr. Dickson had reviewed the records some four years earlier and had written a report, counsel for appellants asked who had sent him the records for his review. The issue was taken up in chambers, and following a hearing the trial judge held the evidence of insurance had some relevance as showing a possible bias by the witness, but that the prejudice which would result from the jury knowing insurance was involved outweighed any probative value.

We think the trial court correctly followed the requirements of Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. §29-1001 (Repl. 1979), by weighing conflicting factors before deciding whether to admit or reject the evidence. We cannot say that it abused its discretion by not admitting the evidence of insurance. See Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). We have often said that juries should not be needlessly informed about insurance coverage because of the prejudice inherent in such information. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973); Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959); Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1 (1912). In Hogan Co. v. Nichols, et al, 254 Ark. 771, 496 S.W.2d 404 (1973), we said that evidence of liability insurance is ordinarily excluded because of its lack of relevance; that because of the inherently prejudicial effect of such evidence, it should only be admitted when it has some probative value relevant to the issues.

Appellants counter with the argument that modern juries are conscious of the likelihood of liability insurance in malpractice cases, rendering prejudice minimal, and the possibility of bias, interest and credibility of the witness being affected is of greater probative weight than any possible prejudice. They point to instances where we have held evidence of insurance to be admissible in spite of prejudice. In Murray v. Jackson, 180 Ark. 1144, 24 S.W.2d 960 (1930), we declined to reverse the trial court in permitting testimony concerning insurance in a case involving disputed personal injuries. The plaintiff had introduced evidence that her injuries were permanent. The defendant then offered the testimony of a physician who said he examined the plaintiff at the hospital, that her injuries were not permanent and should not have required hospitalization. Counsel for plaintiffs was permitted to show on cross-examination that his examination of the plaintiff was at the request of an insurance company. We have said the evidence was proper for the purpose of impeachment or contradicting the witness, as the j ury might have found the employment made the physician biased in favor of the defendant. In Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962), we held that where a witness to an automobile accident is interrogated by the defendant about a written statement given to an insurance adjustor, the defendant must be prepared for the jury to know insurance is involved. But in those cases, the trial court had held the evidence was admissible, whereas here the trial court held it inadmissible, and our review is confined to determining whether reversible error occurred.

Appellants assert that the bias and pecuniary interest of a witness are not collateral matters and may always be shown to discredit him, citing Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918). They point to several factors they say could have affected Dr. Dickson’s bias: whether he was paid by St. Paul for his report and testimony; whether he was St. Paul’s insured and was being defended by St. Paul in other litigation; whether he had testified for St. Paul in other cases. But the bias in Wright v. State was of a different sort and has little relevance to this case. There, a witness for the prosecution had on numerous occasions expressed ill will toward the defendant and on appeal it was held that the evidence should have been received. The other arguments of bias come closer to the mark, but the answer is that the trial court permitted Dr. Dickson to be asked if he was paid for his report and for his testimony. He answered that he could not recall whether he was paid for the report, and assumed he was not; he said he was not being paid to testify, though if any payment was offered he would accept it. The other questions concerning St. Paul were not raised before the trial court, at least we find nothing in the record (the hearing in chambers was not transcribed) and whether these factors would have produced a different evidentiary ruling by the trial court would be speculation. Based on what was presented to him, we cannot say the trial judge abused his discretion by refusing to hold that the evidence of insurance was so probative of biased testimony as to outweigh the prejudice inherent in such evidence.

Appellants ask us to hold that the trial court abused its discretion in sustaining objections to questions asked of Dr. Edwards on cross-examination. On direct, Dr. Edwards was able to recall a number of details which were not on the hospital records. To test his memory of distant events, counsel asked him on cross-examination to describe how he had treated the patient he had seen just prior to Richard, and how many patients he had seen that day. Counsel asked what he would charge per hour for giving a medical deposition in Jonesboro, which the court also rejected. Appellants cite cases pointing out the duty of the trial court to permit a full, fair and reasonable cross-examination of a witness. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964), Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936), Arkansas State Highway Commission v. Dean, 247 Ark. 717, 447 S.W.2d 334 (1969). But we cannot say the trial court abused its discretion by these rulings. There are outer limits to cross-examination, which the trial court must fix, subject to limited review, and it isn’t shown appellants were unduly restricted.

Appellants complain that counsel for appellee was permitted to bolster the reputation of Dr. Edwards and of the Campbell Clinic in Memphis, where Richard was treated, without plaintiff’s having first attacked those reputations. Dr. Austin Grimes, called by the defense, was asked if he knew Dr. Edwards’ qualifications to practice orthopedics, answering that he was a qualified orthopedic surgeon. But the objection was not made until well after the answer was given and the issue does not rise to the level of reversible error. We think the same may be said of another witness’s laudatory reference to Dr. Willis Campbell, founder of Campbell’s Clinic, who had died some forty years earlier, of which appellants complain. Perhaps neither question was entirely proper, but some irrelevant comments intrude inevitably into almost every trial. The human impulse to lend credibility to one’s sources was not confined to the defense. Appellants’ medical witness, Dr. Shutkin, citing an article from a medical journal he was relying on, described the author as a “very famous orthopedic surgeon of international renown.”

Two arguments remain. First, appellants urge that a resume of Dr. Shutkin’s education, training and experience should have been admitted as an exhibit. But the trial court refused it because it was covered by the witness on direct examination and we cannot say this ruling was error. Second, appellants allege error in the trial court’s refusal to admit a copy of “Rules and Regulations For Hospitals and Related Institutions in Arkansas” compiled by the Division of Hospitals and Nursing Homes of the Arkansas State Department of Health. Regulation C, 4, (a) requires a complete history and physical work-up in every patient’s chart prior to surgery. Appellants contend that since Dr. Edwards did not complete the hospital records in this case until several days after the surgery, the regulations constitute some evidence that he was negligent. We disagree with the argument. Nowhere in the record is it suggested that there was a causal connection between Richard’s disability and the failure to complete the history and physical work-up prior to surgery. And the essential element of proximate cause is not met simply by this proffered exhibit. See Prosser on Torts, 4th Ed., § 41. On their face the regulations apply to hospitals and nursing homes and, obviously, the cited regulation cannot be taken categorically, because frequently circumstances are such that to delay surgery for paper work would endanger the patient. Without some explanation to the jury as to how the result in this case was affected by the failure to comply with the regulations, assuming they applied, we think the trial court properly refused them. Certainly, we cannot say appellants’ rights were substantially denied by the rejection of this evidence. See Rule 103, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

The judgment is affirmed.

The Chief Justice and Justice Purtle dissent.

Richard B. Adkisson, Chief Justice,

dissenting. Error was committed during cross-examination when the trial court refused to allow appellants to show that appellee’s witness, Dr. Dickson, was biased. Appellants attempted to elicit from the doctor that he had been employed by appellee’s insurance company to furnish a report on the case. It was not until the doctor was actually shown the report that he admitted writing it, and then appellee’s objection prevented further questioning. In chambers, the trial court ruled that “insurance” was not to be mentioned, thereby preventing appellants from showing that Dr. Dickson was biased by the fact that he had been paid by appellee’s insurance company to furnish them a report on the case.

The majority acknowledges that “the trial judge held the evidence of insurance had some relevance as showing a possible bias by the witness, but that the prejudice which would result from the jury knowing insurance was involved outweighed any probative value.” In Murray v. Jackson, 180 Ark. 1144, 24 S.W.2d 960 (1930), we allowed Gross-examination on this very point, stating that a jury could find bias from the fact that a defense witness was employed to make a report to the defendant’s insurance company. Although we have stated that insurance should not unnecessarily be injected into a case, we have consistently allowed references to insurance whenever it is relevant, as here, to an issue in the case. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980); Industrial Farm Home Cas. Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962). The bias or interest of a witness is always a relevant issue. We have specifically and consistently held that it is not within the trial court’s discretion to deny a party the privilege of showing that a witness is biased and that it is reversible error to exclude testimony which shows bias. Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918); Bethel v. State, 162 Ark. 76, 257 S.W. 740 (1924). The reason for the rule is that the jury is entitled to know of any possible bias since it affects the weight to be accorded to the witness’s testimony. Here, the fact that appellee’s witness was employed to furnish a report on the case to appellee’s insurance company was clearly admissible for the purpose of showing bias in favor of appellee.

The majority attempts to evade the import of their decision in this case and our case of Murray v. Jackson, supra, by stating that “the trial court permitted Dr. Dickson to be asked if he was paid for his report and for his testimony.” Dr. Dickson’s response was that he could not recall whether he was paid for the report and coyly avoided whether he was being paid to testify by saying that he was not being paid to testify but if any payment was offered he would accept it.

Dr. Dickson’s response points up the impact of the trial court’s ruling that “insurance” was not to be mentioned. But for this ruling appellant would have been able to jog his memory by expressly asking him if he was paid by the insurance company for which he made the report. At this time it is very significant to note that Dr. Dickson did not remember making the report at all until appellant jogged his memory by showing him the report. With a little help Dr. Dickson could probably have remembered that he did not write a comprehensive report for this insurance company without compensation.

I would adhere to our prior holdings that the right to show a witness is biased is not a discretionary matter, Wright v. State, supra; that if evidence is relevant and probative on the issue of bias, such evidence will not be excluded because its admission would disclose that an insurance company was in some way involved in the case. York v. Young, supra. When an insurance company employs and pays a witness to testify, then its insured should be prepared for the jury to know that insurance is involved. See Industrial Farm Home Cas. Co. v. McDonald, supra.

Although the trial court erroneously prohibited appellants from showing that appellee’s witness was biased, it then properly, but inconsistently, allowed appellee to show that one of appellant’s witnesses was biased. The trial court then erroneously refused to allow appellants to rebut evidence tending to show bias on the part of appellant’s witness. This situation occurred when appellee asked on cross-examination how much appellant’s witness, Dr. Shutkin, was being paid to testify; to which Dr. Shutkin responded $1,500 per day. Appellants later attempted to show that the fee was reasonable by asking appellee, Dr. Edwards, on cross-examination how much he charged for giving a medical deposition. However, the trial court refused to allow Dr. Edwards to answer the question. This ruling was in error. Just as a party should always be allowed to show bias, a party should also always be allowed to rebut the showing of bias.

I would reverse and remand for a new trial.

John I. Purtle, Justice,

dissenting. I agree in full with the Chief Justice’s dissent in this case but feel a need to write on an issue I feel is quite important in this case.

Our past cases have held that a practitioner must adhere to local standards and practices: this has been codified through Act 709 of 1979 (§§ 34-2601 et seq. [Supp. 1981]). Ark. Stat. Ann. § 34-2614 addresses this point:

(A) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) That the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; and
(2) That the medical care provider failed to act in accordance with such standard; and . . .

In the present case the appellants were prevented from introducing into evidence the Arkansas Department of Health’s “Rules and Regulations for Hospitals and Related Institutions in Arkansas,” which specifically require that a complete history and physical work-up by a physician be in the chart of every patient prior to surgery. These standards are applicable state-wide and would, therefore, be applicable as to the community in which appellee practiced at the time of the occurrence. The appellants at the lower court level had established a basis for proving that the regulation was not complied with when they introduced a preoperative check list which listed 18 items to be performed and initialed before surgery. One of these items was that the history and physical be on the patient’s chart. Beside this numbered requirement was a box to be checked if this information had been dictated only. The appellee testified that he had this information available to him but did not get it into the boy’s chart until almost two weeks after the operation. On the postoperative check list it was noted that the history and physical were not on the chart and the square was not checked that this material had been dictated. The appellants’ contention at trial was that a complete history and work-up would have indicated elapsed time from the initial injury as well as how and where the injury occurred. They felt this information would be important in diagnosing, consulting and treating the boy for his injuries. Whether this would have proven negligence to the satisfaction of the jury is unknown for the jury was not allowed to consider the rules and their alleged violation.

Counsel for the plaintiff had a right to develop his theory of the case the way he saw fit, within our rules of procedure and evidence. Uniform Rules of Evidence, Rule 401, defines relevant evidence by stating:

"Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

I believe the rules and regulations in question clearly are within our guidelines as to evidence relevant in meeting the plaintiff’s burden of proof and would have been a proper method of proving negligence. The appellee’s actions or inactions in regard to these rules and regulations may not have been the sole proximate cause of the boy’s disability, but may have been one link in a chain of events which taken together would allow a jury the opportunity to find a party negligent. The “causal connection” referred to in the majority opinion becomes perfectly clear through the use of this approach.

In any event, the Arkansas Department of Health’s rules and regulations should have been allowed into evidence and if the judge felt an explanation to the jury was necessary, he could have made such explanation, limitation or admonishment to them upon the introduction of the material into evidence or through the jury instructions.

Counsel has the right to follow a set of trial tactics in attempting to prove the negligence of a defendant. In this case appellants were thwarted in these efforts after haying laid the foundation for them. The question then becomes whether this material was relevant. I believe that it was error not to allow the rules and regulations into evidence. I would reverse and remand.


author: Per Curiam.

text:
    COKING COAL, INC. et al v. ARKOMA COAL CORPORATION
    83-34
    646 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      Hixson, Cleveland ér Rush, by; R. H. “Buddy” Hixson, and Friday, Eldredge ir Clark, by: George E. Pike, Jr., for appellants.

      Shaw ir Ledbetter, by: J. Michael Shaw, Jr., for appellee.
   Per Curiam.

While this case was pending in the Court of Appeals, the appellee moved to dismiss the appeal on the ground that the notice of appeal was not filed within the time allowed by Rule 4 of the Rules of Appellate Procedure. The Court of Appeals transferred the motion to this court under Rule 29 (1) (c).

The final decree was entered on July 14, 1982. On July 26 the appellants filed a motion for a new trial, which under Rule 4 extended the time for filing notice of appeal for 30 days, expiring on August 25. On August 23 or 24 an attorney for the appellants submitted the motion for new trial to the chancellor, who orally denied it. Next, there was a conference telephone call on September 15, participated in by the chancellor and an attorney for each side. During that conference the chancellor stated that since one of the appellants’ attorneys had apparently been unaware that the chancellor had neither taken the motion for new trial under advisement nor set it for hearing within 30 days under Rule 4, the chancellor was going to enter a formal order overruling the motion. That order was entered on September 17. The appellants’ notice of appeal, a jurisdictional requirement, was then filed on September 20.

The motion to dismiss the appeal must be granted. Under Rule 4 (c) the party filing a motion for new trial must present the motion to the court within 30 days, and if the matter cannot be heard within the 30 days the movant must, within those 30 days, request the court to take the matter under advisement or to set a definite date for a hearing. If the court does neither, the motion is deemed to be denied at the expiration of 30 days after its filing — here August 25. Under Rule 4 (d), if the motion is denied by the court or is deemed to have been disposed of, a party desiring to appeal has 10 days from the entry of the order or from the date of the presumed disposition of the motion to file notice of appeal. Here the motion was actually denied on August 24, but the notice of appeal was not filed until September 20.

The purpose of Rule 4 is to accelerate the appellate process, not to delay it. In the first case construing the statute permitting the time for filing the notice of appeal to be extended by a motion for new trial, this court said that when the trial court extended the 30-day limitation by taking the motion for new trial under advisement, it was desirable, to avoid the uncertainties of oral testimony, that a docket entry or other written dated record be made. St. Louis SW Ry. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966). More than two years ago the Court of Appeals held, correctly, that the requirement of a written record has become mandatory. Jacobs v. Leilabadi, 267 Ark. 1020, 593 S.W.2d 479 (1980).

If the trial court in the case at bar had done nothing within 30 days after the filing of the motion for new trial, the motion would have been deemed denied, requiring the notice of appeal to be filed within 10 more days. The appellants argue in effect that since the motion was orally denied within the 30 days, they were entitled to wait for weeks or presumably even months before setting the 10-day limitation in motion by having the denial reduced to writing and filed with the clerk. The extension of the 30-day period is plainly for the benefit of the trial judge, who must either take the case under advisement or set a hearing. Its purpose is not to delay the case needlessly. Here, when the chancellor orally denied the motion, counsel could have obtained a written order and filed notice of appeal within the 10 days allowed. Alternatively, counsel could have filed the notice of appeal at once, without waiting for the entry of an order. Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958). Neither option was exercised.

The appeal is dismissed.

Adkisson, C.J., and Purtle, J., would deny.


text:
    Josephus BROWN v. STATE of Arkansas
    646 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      John W. Achor, for appellant.
    No response for appellee.
   Per Curiam.

Appellant, Josephus Brown, by his attorney John W.Achor, has filed a motion for a rule on the clerk. The motion states that the transcript was tendered to the Clerk of this Court within the time ordered by the Circuit Court of Pulaski County. However, the notice of appeal was filed on July 15,1982 and appellant had 90 days to either file the transcript or file for an order extending the time to complete and file the transcript. Neither was filed within 90 days. Thus, the record in this appeal was not timely filed. No good reason is given for the delay in filing. Therefore, we deny the motion.

If an affidavit attached to the motion had stated that the attorney had made an error or had been careless in the computation of time, or had given any good cause for the delay, the motion could have been granted. In a per curiam opinion regarding belated appeals tendered February 5, 1979,265 Ark. 964, we discussed the problem of an untimely tender of a record caused by the attorney. We decided that we have no alternative but to grant the motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct as is our practice.

This denial of a belated appeal is without prejudice. If good cause is shown later, we can grant the motion.


author: Richard B. Adkisson, Chief Justice.

text:
    Gary Wayne FULLER v. STATE of Arkansas
    CR 82-140
    646 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983

      Richard A. Grant and Wayne A. Gruber, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Gary Wayne Fuller, was convicted by a jury of first degree murder and sentenced to life imprisonment. At trial, a statement given by appellant to the Pulaski County Sheriff’s Office was introduced into evidence. Appellant’s primary contention on appeal is that the trial court erred in admitting the statement into evidence because it was not voluntarily given. We affirm.

Testimony at trial revealed the facts leading up to the murder. Appellant had dated a woman named Theda Balfour Miller about four years and they had had a child. At the time of the murder, however, Theda and the child were living with Lawrence Goodson, the deceased, at Theda’s mother’s house in Southwest Little Rock. On September 22, 1980, appellant telephoned Theda, wanting to take the child to the fair. It is unclear whether appellant ever spoke with Theda, however, it is undisputed that he and the deceased got into a heated argument over the phone. Later that evening appellant and some of his friends drove over to Theda’s house. Appellant got out of the car, taking one of his friend’s shotguns with him. He crept up to the bedroom window, saw the deceased, and fired several shots. Appellant’s friends testified that appellant came back to the car and told them that he had shot Goodson in the head. Goodson’s brother found Goodson dead in the bedroom. The above evidence is clearly sufficient to sustain appellant’s conviction.

On September 22, 1980, appellant was questioned concerning the murder but was released. Then on July 28, 1981, appellant was served with a warrant for murder of the deceased while being held in jail on an unrelated charge. He was taken to a CID unit for questioning, where he was advised of his rights. He subsequently gave a statement, which was written out by an officer but signed by appellant.

Appellant argues that this statement was involuntary and should have been suppressed. This contention is without merit. The applicable law is well settled. If the individual is in custody when the statement is given the burden is on the state to prove that it was voluntarily given. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). This determination is made based upon the totality of the circumstances at the time the statement was given. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). On appeal we review the evidence and make an independent determination as to the issue of voluntariness. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835(1981).

Appellant alleges that his statement was involuntary because of the time of the statement he had been drinking and had taken “Blues and Tees.” However, the officer taking the statement testified that appellant was very coherent and did not have problems communicating. Appellant claims that the officers told him if he made a statement he would not be harmed, and that he asked to telephone an attorney but was not allowed to do so. These allegations were also disputed by the officer, who testified that he did not remember appellant requesting to use the telephone and that no threats or force was used to get appellant to make the statement. In fact, the appellant himself testified that the officers did not threaten him, and that he “just went on and signed the papers to get it over with.” Appellant alleges he only had an eighth grade education; however, the officers testified that appellant stated he had an eleventh grade education,' and a notation “11th grade” appears on the rights form and appellant’s statement.

When the testimony is conflicting as to voluntariness, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982). Here, the trial court resolved the credibility issue in favor of the state, and we cannot say its finding was clearly against the preponderance of the evidence.

Appellant also argues that the trial court erred in admitting two photographs of the deceased. One photograph showed the deceased as he was found and the other showed the wound the victim had received. We have consistently held that. the question of admissibility of photographs lies largely within the discretion of the trial court, and its ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. Here, the first photograph corroborated the testimony of the witness who found the body, and the second photograph aided the Chief Criminologist for the State Crime Lab in his testimony. The fact that there was a stipulation as to the cause of death did not make the second photograph inadmissible. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977). Furthermore, both photographs were, relevant to the nature and extent of the wounds. We cannot say that the trial court abused its discretion in admitting the two photographs.

We have examined all objections pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 611 S.W.2d 98(1981).

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice, dissenting. Steele Hays, Justice, dissenting.

text:
    Minnie WILLIAMS v. Ray SCOTT, Executive Director, Arkansas Department of Human Services et al
    82-210
    647 S.W.2d 115
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983

      Janet Pecquet, Legal Services of Northeast Arkansas, for appellant.

      Carolyn Parham, Arkansas Department of Human Services, for appellees.
   George Rose Smith, Justice.

This cases arises under the Medicaid Program, created by federal law but administered in part by the state. The program provides free medical assistance for indigent persons who are disabled within this definition of disability: “Physical or mental impairment which prevents the individual from doing any substantially gainful work . . . and which has lasted or is expected to last for at least 12 months.” Medical Services Manual, § 3320 (1) (c), as quoted in the record.

The appellant, Minnie Williams, applied for medical benefits under the program. Her application was approved in May, 1980, but when her case came up for review in April, 1981, she was found to be ineligible for benefits. She was given an administrative hearing, but the Medical Review Team, consisting of a doctor and a social worker, again found her to be ineligible. That decision was affirmed by the circuit court. The appeal comes to us under Rule 29 (1) (c).

The significance of the various pertinent facts can be better appreciated if we first outline the principles that govern our review of the case. Under the Administrative Procedure Act an administrative decision can be reversed if it is not supported by substantial evidence or is arbitrary, capricious, or characterized by abuse of discretion. Ark. Stat. Ann. § 5-713 (h) (Repl. 1976). At the outset we stress the fact that this particular administrative proceeding is not a truly adversary one; that is, there is no burden on the Department of Human Services to investigate the appellant’s claim and introduce rebutting proof. Instead, much as in the instance of a person seeking a license of some kind, the burden is on the applicant to prove her eligibility to the satisfaction of the administrative agency. See Gray’s Butane Wholesale v. Ark. Liquefied Petroleum Gas Bd., 250 Ark. 69, 463 S.W.2d 639 (1971).

An administrative agency, like a jury, is free to believe or disbelieve any witness. Meyer v. Seismograph Service Corp., 209 Ark. 168, 189 S.W.2d 794 (1945). We give the evidence its strongest probative force to support the administrative decision. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972). To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion. Ibid. Finally, the question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Campbell v. Athletic Mining & Smelting Co., 215 Ark. 773, 223 S.W.2d 449 (1949).

The facts, viewed most favorably to the appellee, are these: The claimant, now age 60, never married and has depended upon members of her family for support. She can read and write a little, but is functionally illiterate. The only work she has done outside the home was agricultural field labor. Some 15 to 20 years ago she discontinued that work to take care of her mother. In March, 1979, her mother had a stroke and eventually became blind and an invalid. The claimant cared for her mother until her death in November, 1979. Since then she has lived with her brother. A social worker reported in August, 1981, that the claimant “takes care of her personal needs. She is not bed, chair or house bound. [She] has charge of the homemaker chores. She spends her days doing her housework and visits her neighbors.....[She] is friendly and cooperative.” Upon the nonexpert proof we think a fair-minded person could reach the conclusion that the claimant is not physically disabled.

Nor can it be said that the expert proof is conclusive. In April, 1980, when the claimant first applied for Medicaid, her physician, Dr. Ashley, filled in a form with information that is more favorable to the claimant than anything else in the record. He wrote that she had migraine (headaches), goiter, generalized arthritis, otitis (inflammation of the ear), anxiety reactions, and perhaps other ailments not made clear by the record. In his comments Dr. Ashley referred to the claimant as totally illiterate and concluded that she was totally disabled, unemployed, and unemployable. In May, 1980, the Medical Review Team found the claimant eligible for benefits. Their report ended by requiring a re-examination in May, 1981.

On April 9,1981, another doctor filled in the same form with information less favorable to a finding of disability. This time the Medical Review Team found the claimant ineligible, on May 1. Dr. Ashley then submitted a new evaluation on May 11, in which he said: “This lady is unemployed and unemployable. [Dr. Ashley’s italics.] In 58 yrs. has no work experience except caring for her mother, who died on 28 Nov. 1979. . . . Her brother is now ‘kicking her out’ in favor of a girl he wants to marry.” On October 5 there was a hearing at which the claimant testified but offered no other evidence to support her claim. The Medical Review Team again found her to be ineligible for benefits.

We find it impossible to say that fair-minded persons could not conclude that the claimant failed to establish her entitlement to medical assistance. Dr. Ashley, quite evidently an advocate for his patient, did not limit his opinion to the claimant’s physical disability to work, for he stressed her illiteracy and her lack of work experience. Medicaid, however, is not available for the unemployed and unemployable; it is for the aged and the physically disabled. Dr. Ashley did not attempt to pinpoint any one or more of his patient’s ailments that were actually disabling. The Medical Review Team, selected for their expertise in such matters, did not consider the claimant’s several ailments, most if not all of which had afflicted her for many years, to be totally disabling. With the evidence in conflict, we cannot say that the Team acted without substantial evidence or arbitrarily and capriciously.

Affirmed.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice, dissenting.

I disagree with the majority in this case because, in my opinion, the overwhelming preponderance of the evidence substantiates the appellant’s claim of total disability. All Minnie Williams is asking is that she be granted medicaid as one who is medically needy. This is a federally funded program operated through the social services division of the Arkansas Department of Human Services. “Disability” is defined by both state and federal regulations as a “physical or mental impairment which prevents the individual from doing any substantially gainful work . . . and which has lasted or is expected to last for at least 12 months ...”

Minnie Williams was forced to work on a farm when she was a child and was unable to obtain any formal education. She spent her adult life as an unskilled farm laborer and caring for her invalid mother. She was 59 years of age at the time of the hearing. She receives no income from any source, therefore, she is ineligible for social security benefits. Dr. John D. Ashley, a local physician, testified that in his opinion appellant suffered from a number of impairments, including: migraine headaches, goiter, rheumatoid arthritis in multiple joints, paraxysmal, anxiety attacks, osteoarthritis, enlarged thyroid, extreme nervousness, nausea, otitis guterma, and arthritis of the lumbar spine. His testimony was that appellant was to avoid any type of activity which included walking, standing, stooping, kneeling, lifting, reaching, pushing and pulling. He concluded by saying that in his opinion she was totally and permanently disabled. There was another medical report which was essentially the same as that of Dr. Ashley’s. The medical testimony was not contradicted. It is my opinion that reasonable minds could not find that this woman was not totally disabled. There is no known gainful employment, in my opinion, which does not involve some of the activities prohibited by the medical evidence in this case.

I would reverse this case and order Minnie Williams to be certified as totally disabled from engaging in any gainful employment as intended by the regulations herein involved.

Steele Hays, Justice, dissenting.

This illiterate, sixty-year-old woman applied for Medicaid under the Medically Needy Program. She claims to suffer from goiter of long duration, shortness of breath, dizzy spells, migraine headaches, chronic ear infection and rheumatoid and lumbar arthritis. Her employment has been limited to field work, doubtless due in part to illiteracy, but she had to give that up about fifteen years ago. She says she can do some housework, though only sporadically, and is limited in what she is physically able to do. Her brother gives her what help he can for food and medication.

Appellant’s claims of disability are fully supported by several medical reports of Dr. John D. Ashley of Newport. He considers her condition to be permanent and totally disabling. Whether Dr. Ashley’s opinion is to be discounted because he is an advocate for his patient, I cannot say. He may simply have believed the appellant was totally disabled, as he reported her to be.

Certainly, the burden is on the appellant to prove her entitlement to these medical benefits in the first instance. But where she has done that by independent, credible medical opinion, then an agency decision adverse to her must be supported by substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Ark. Stat. Ann. § 5-713 (Repl. 1976). Here, I can find nothing of substance that supports the denial of benefits. The sum and substance of the evidence opposing appellant’s claim of entitlement consists of a brief printed form which recognizes some of Dr. Ashley’s findings, but goes on to state, “Based on the evidence our decision follows:”

1. Eligible ( )

2. Ineligible (x)

This “evidence” utterly fails to meet the requirements of the law in two respects: first, a one-word peremptory denial of a claim for medical benefits, so clearly needed, fails to meet, or even approach, the test of substantial evidence, which has been defined as evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred. The test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences. Wigmore on Evidence, 3rd Ed. vol. 9, at 300. Substantial evidence has been defined as:

“Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Ford on Evidence, vol. 4, § 549, at 2760.

Second, the avowed purpose of the Administrative Procedures Act is to improve the administration of justice by providing fair procedures, including judicial review. Where a claim of benefits (whether workers’ compensation, unemployment insurance, or medical aid to the needy) is based on substantial grounds, and is denied by an agency with no explanation except that it is “denied”, any significant review by the courts as to fairness is totally destroyed. We are left in such instances to simply accept, on pure faith, an unsupported, one-word opinion that the claimant is “ineligible.” Thus, our obligation to provide meaningful appellate review is abdicated in favor of the agency. I respectfully dissent.


author: George Rose Smith, Justice.

text:
    Eli McFADDEN v. Mary GRIFFITH
    82-248
    647 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983
    [Rehearing denied April 4, 1983.]

      Kaplan, Hollingsworth & Brewer, P.A., by: Philip E. Kaplan and Karen L. Arndt, for appellee.

      Haskins ir Wilson, by: Robert B. Buckalew, for appellee.
   George Rose Smith, Justice.

On December 30, 1964, the appellee, Mary Griffith, had a son, Tony Jerome McFadden, born out of wedlock. In this bastardy proceeding, filed in 1980, the trial court found that the appellant, Eli McFadden, is the father of the child. The judgment also awarded child support for the preceding three years. For reversal it is primarily argued that the judgment is clearly against the preponderance of the evidence. A subordinate theory, that any award of support money is barred by limitations, was rejected in Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981), and need not be discussed further.

The mother testified that she had sexual relations with Eli McFadden and with no one else from 1962 until 1966. She also testified that McFadden recognized the child as his, visited the child at the hospital, bought clothing, a high chair, milk, and other things for the baby, and gave the mother $15 or $20 a week. In 1966 McFadden married and went to California, but when he returned 14 years later he brought his own daughter to see Tony and also bought clothing for Tony. The appellee’s testimony was corroborated to some extent by her mother and by Tony himself. McFadden admitted having had sexual relations with the appellee for a year and a half beginning in 1962, but he said they had a falling out for a year (during which Tony was conceived), after which their relationship was resumed. He denied having done anything at all for the child.

In his argument for reversal the appellant cites cases such as Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981), where we held that one who claims to be the illegitimate child of a deceased person, and on that basis to share in the decedent’s estate, must prove his claim by clear and convincing evidence. That standard of proof is required, however, because in such cases the death of the man charged with having fathered the claimant has deprived the estate of its most valuable witness. Indeed, as in Christman v. Jones, 254 Ark. 936, 497 S.W.2d 14 (1973), our statutes have often required that the claimant in such a situation prove speci fied corroborative facts, one being that the decedent recognized the claimant as his child.

By contrast, our cases do not indicate that in a bastardy proceeding like this one, brought against a living putative father, the mother’s burden of proof is anything more than a mere preponderance of the evidence. That rule naturally follows from the fact that a bastardy proceeding, even when brought in the name of the state, is a civil proceeding, not a criminal one. Eveland, v. State, for Use of Fossett, 189 Ark. 517, 74 S.W.2d 221 (1934). In the case at bar the trial court’s judgment, far from being clearly erroneous, is in our oinion supported by the weight of the evidence.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Charles SMITH v. STATE of Arkansas
    CR 83-22
    _S.W.2d_
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983
    [Rehearing denied April 4, 1983.]

      R. L. Walloch, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with possession of seven pounds of marihuana with intent to deliver, was convicted by a jury and sentenced to a six-year prison term and a $1,000 fine. The Court of Appeals transferred the case to us under Rule 29 (4) (b).

While the case was pending in that court, the appellant’s attorney filed a brief without a proper abstract of the testimony. When the Attorney General called attention to the deficiencies, the Court of Appeals correctly gave effect to Rule 9 (e) (2) by denying appellant’s motion to be allowed to file a supplemental abstract and brief, but permitting counsel to file a substituted abstract and brief. Counsel, however, disregarded the plain language of both the rule and the order by filing a mere supplemental abstract and brief. The rule does not contemplate that anything less than a complete, substituted abstract and brief may be filed in the circumstances, so we must treat the supplemental abstract and brief as the appellant’s only one in the case. When, as here, an appellant’s abstract is deficient, our practice is to rely on the record if it shows that the trial court’s decision should be affirmed on a particular point, but not to explore the record for prejudicial error if none is shown by the abstract.

On September 14, 1981, Kirk Hicks was a Van Burén county deputy sheriff and also a police officer employed by the city of Damascus. That night he stopped the appellant’s car because it had no taillights. The officer, having some reason to suspect that the appellant or his companion had unlawfully killed a deer, searched the trunk of the car and found not a deer but seven pounds of marihuana. After the trial counsel filed a motion for new trial on the ground that Hicks was not a certified law enforcement officer, so that the arrest and search were illegal. The denial of that motion is the first ground for reversal.

No reversible error is shown. Act 452 of 1975, as amended, provides for the certification of law enforcement officers and recites that official action taken by an uncertified officer is invalid. Ark. Stat. Ann. § 42-1007 (Supp. 1981) and § 42-1009 (Repl. 1977). Section 42-1007 also provides, however, that full-time officers serving on the effective date of the act may continue in their employment. Officer Hicks had been a police officer for some years before the passage of the 1975 act and was therefore exempted by its “grandfather clause.” It is not clear that he lost his status by moving from Stone county to Damascus and continuing in police work there. See § 42-1007. In any event, all the facts were available to counsel before the trial; so the motion for new trial was not supported by the necessary showing of diligence. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).

A second argument is that the trial judge should not have answered the j ury’s inquiry, during their deliberations, about parole eligibility for a person sentenced to one year in jail. Defense counsel, however, agreed in response to a question by the trial judge that information about “the parole situation” could be given to the jury. That distinguishes this case from our holding in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), for counsel cannot consent that the trial judge take some action and then seek a reversal on the basis of that action. Clack v. State, 213 Ark. 652, 212 S.W.2d 20 (1948).

A third argument is that the appellant did not voluntarily consent to the search of the trunk of his car. The substituted abstract of the testimony at the suppression hearing does not show that the consent was not voluntary. It is also argued that the trial judge was wrong in ruling that if the defendant took the witness stand at the suppression hearing he could not limit his testimony to the issue of whether or not his consent was given. Even so, there was no proffer of what the defendant’s testimony would have been; so we have no way of knowing whether he would have testified to facts rebutting his asserted consent to search. Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree for two reasons. First, it was reversible error for the trial court to rule that if appellant took the stand at the Denno hearing he had no right to refuse to testify on any matter the state chose to inquire about. Second, it was prejudicial error to allow the jury to receive evidence of parole eligibility, which in all probability was wrong anyway.

The Denno hearing was conducted to determine whether appellant had given a valid consent to search the trunk of his automobile. The officer was told by appellant that he did not want his vehicle searched. No doubt the presence of the purported deputy sheriff with his pistol at his side influenced appellant to change his mind and consent to the search. I am not so naive as to believe the appellant simply changed his mind and agreed to incriminate himself for the convenience of the purported officer. Consent to an invasion of privacy must be proven by clear and positive testimony and this burden is not met by showing acquiescence. Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). Had the trial court not ruled the appellant could not testify without waiving his immunity the preponderance of the testimony would have, no doubt, revealed that the state did not meet the burden required to validate an otherwise illegal search. The court stated at the Denno hearing: “... once he takes the stand, he does not have the right to not answer ... if you put him on, the state can ask him whatever they want to ask him.” This is plainly a misstatement of the law. I further think that the acting deputy sheriff had no idea what was in the trunk of this vehicle but merely wanted to look around to see what he could find, as is the case so often when officers are permitted to make seizures without probable cause, or warrant, as required under the Fourth Amendment.

Next, even if appellant’s attorney agreed to the court’s improper comment on the parole system it was the duty of the court not to do so. The matter never should have reached the point where appellant’s counsel consented to it. In Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971) we had before us a case where the court made a similar improper statement to the jury and there we stated:

Accordingly, we have concluded that this information should not be given the jury, and when asked for such information, the court should reply, in effect, that it is improper for the court to answer the inquiry, and an answer might well constitute reversible error; that the jury need not concern itself with the matter; that the control of the parol system is committed by law to the legislative and executive branches of the government, and, that the jury, in reaching a verdict of guilty, has only the duty of imposing such punishment as may be considered, under the court’s previous instructions, to be appropriate.

It is likely that the statement to the jury was incorrect anyway as to the amount of time the appellant would have to serve before becoming eligible for parole. Any explanation of the parole system to a jury is improper, but incorrect information compounds the error. Therefore, I would reverse and remand for a new trial after the evidence obtained by the illegal search is suppressed.

Affirmed.


author: Frank Holt, Justice. Richard B. Adkisson, Chief Justice,

text:
    OKLA HOMER SMITH MANUFACTURING COMPANY v. LARSON AND WEAR, INC. and INDUSTRIAL ROOFING AND SHEET METAL COMPANY, INC.
    82-298
    646 S.W.2d 696
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983

      Robins, Zelle, Larson ir Kaplan, Dallas, Texas, and Jones, Gilbreath ir Jones, for appellant.

      Warner ir Smith, by: G. Alan Wooten and Joel D. Johnson, for appellee Larson and Wear, Inc.

      Shaw ir Ledbetter, for appellee Industrial Roofing and Sheet Metal Company, Inc.
   Frank Holt, Justice.

Appellant contracted with appellee Larson and Wear as the general contractor to construct an addition to appellant’s furniture factory. Larson and Wear subcontracted the roofing to appellee Industrial Roofing. The work was completed in 1974. The roof sustained damage during a storm on April 2, 1980. On June 30, 1981 the appellant filed this action against the appellees alleging that the roof damage had been caused by the negligent design, fabrication, and installation of the roof.by Industrial Roofing and the negligent supervision of Industrial Roofing by Larson and Wear. The circuit court granted the appellees’ motions to dismiss on the ground that the action was barred by the five year statute of limitations, Ark. Stat. Ann. § 37-237 (Supp. 1981). Further, it was barred by the three year statute of limitations governing torts. Ark. Stat. Ann. § 37-206 (Repl. 1962). Appeal is taken from the dismissal of the action.

Section 37-237 is § 1 of Act 42, Acts of Arkansas, 1967, and it states as follows:

No action in contract (whether oral or written, sealed or unsealed) to recover damages caused by any deficiency in the design, planning, supervision or observation of construction or the construction and repair of any improvement to real property or for injury to property, real or personal, caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction or the construction or repair of such improvement more than five (5) years after substantial completion of same.

The appellant observes that this provision applies only to actions “in contract” whereas the next section, § 37-238, a similar statute governing personal injury actions, applies to actions “in tort or contract.” He argues that the legislature left open the possibility that a plaintiff who had contracted to have construction work performed could sue the contractor for personal damage arising from a deficiency in design, planning, supervision or construction of an improvement more than five years after its completion if the plaintiff alleged negligence, a tort, rather than breach of contract. Since his complaint alleges negligence, he argues that § 37-237 is inapplicable. Consequently, § 37-206 is the only governing statute as to when the action must be brought. Section 37-206 requires that the tort action be brought within three years after the cause of action accrues. The appellant argues that its cause of action accrued on April 2,1980 when the storm caused the damage, because the tort was not complete until that time. Thus, its action was not barred, since it was filed on June 30, 1981, well within three years after the date he claims the cause of action accrued.

The first issue presented is whether the phrase “in contract” in § 37-237 should be construed to mean the statute is limited to actions where the plaintiff alleges a theory of recovery in contract or whether it is broad enough to govern in actions arising out of a construction contract where property damages, as here, are allegedly caused by a tort; i.e., negligence in the deficiency in design, planning, supervision or construction. As we have stated on many occasions, the guiding star in interpreting a statute is the intention of the legislature. Shoop v. State, 209 Ark. 642, 192 S.W.2d 122 (1946); West v. Cotton Belt Levee Dist. No. 1, 116 Ark. 538, 173 S.W. 403 (1915); and Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). Here, it is obvious that the legislative purpose was to enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit. Similar statutes were enacted in many states during the 1960’s. The annotation at 93 A.L.R.3d 1242, 1246 (1979) states:

While the statutes thus enacted are not uniform in content, the purpose for which they were enacted was uniformly to limit the time within which actions for deficiencies in the design, construction, and supervision of construction of improvements to real property, for which architects, engineers, and others in the construction industry were responsible, could be brought against such persons. The effect of such statutes is to cut off entirely an injured person’s right of action before it accrues, if it does not arise until after the statutory period has elapsed.

See also Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970).

We have held that it is always proper to look at the preamble of an act to ascertain its meaning. Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W.2d 7.7 (1919). The preamble to Act 42 states:

An act to establish a Statute of Limitations for any deficiency in design, supervision and construction of improvements to real property, for injury to real or personal property and for personal injuries and wrongful death arising from such deficiency, and to establish financial responsibility for persons bringing actions in connection therewith. (Italics supplies.)

An impartial reading of the nine sections of Act 42 confirms the statement in the preamble that the Act was intended to establish limitations for “any” deficiency in work arising out of a construction contract.

If we construed § 37-237 in the manner urged by the appellant, the purpose of the legislature in enacting that provision would be totally frustrated, because every plaintiff who wished to avoid its impact could do so merely by alleging negligence rather than contract as the theory of recovery. Instead, we construe the phrase “in contract” in § 37-237, in the light of the legislative purpose and the language of the preamble to Act 42, to extend the coverage of § 37-237 to all actions which arise out of a construction contract where property damage has allegedly resulted from any deficiency in design, planning, supervision or observation of construction or the construction and repair of any improvement to real property.

The facts in the present case are somewhat analogous to those in Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 134, 628 S.W.2d 9 (1982), where we held that the “real character” of an action for negligent performance of a construction contract was in contract rather than in tort. Here, Smith contracted with Larson and Wear for the construction of the addition to the factory, and Larson and Wear subcontracted with Industrial Roofing for its roofing obligation under the contract with Smith. Hence, all the work about which appellant complains which caused property damages was done pursuant to a contractual relationship between the parties to this litigation. Accordingly, § 37-237 applies to this action. It is admitted that the action was filed more than five years after substantial completion of the improvement. Therefore, the trial court correctly held this action to be barred by § 37-237.

Since we hold that the action is barred by § 37-237, we deem it unnecessary to discuss the other argument advanced by the appellant.

Affirmed.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. The majority has held that the statute of limitations for “actions in contract” provided for under Ark. Stat. Ann. § 37-237 (Supp. 1981) is now also applicable to actions in tort. I cannot agree with the extension of this statute by construction. The effect of statutes of limitations is to cut off the right to bring an action which would otherwise remain. For this reason such statutes should be narrowly construed. See St. Louis I.M. & S. Ry. Co. v. B. & W. Tel. Co., 86 Ark. 300, 110 S.W. 1047 (1908).

The majority justifies their broad construction of the statute by finding that the legislature intended to bai- all actions (i.e., both contract and tort) arising out of a construction contract after five years. It is interesting to note that our statute was modeled after Ind. Code Ann. § 34-4-20-2 (Burns 1973), which specifically provides that actions “whether based upon contract, tort, nuisance, or otherwise, ...” will be barred after a stated time. It is, therefore, logical to conclude that since our legislature limited the time for recovery of damages to “action[s] in contract (whether oral or written, sealed or unsealed...)”, the legislative intent was that Ark. Stat. Ann. § 37-237 apply only to actions in contract.


author: Frank Holt, Justice.

text:
    Elbert Lee FOSTER v. STATE of Arkansas
    CR 83-23
    646 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983

      Mike Smith, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

In a non-jury trial appellant was convicted of theft by receiving and sentenced to four years imprisonment with two years suspended. Appellant questions “[w]hether the arresting officer had reasonable grounds to believe that the appellant had committed a felony or a misdemeanor as defined” by A.R.Cr.P., Rule 3.1. He then argues that the policemen lacked a “reasonable suspicion” to believe that the appellant was engaged in criminal activity which justified the stop and arrest.

At approximately 9 p.m., two police officers in plain clothes and an unmarked car were cruising in a lighted area when they observed the appellant and another individual standing at the rear of a parked car, at a street intersection, with the trunk open. Appellant was holding what appeared to be a stick of bologna. He was showing items in the trunk to “other persons.” As the officers drove by and looked, the appellant noticed them. He was “acting suspicious” and attempted to close the trunk. They stopped and observed in the open trunk several boxes of what appeared to be bologna which was later identified as Golden Platter Turkey and Ham Sticks, marked as “J.A.X.” and “H.I.” Boxes of unstamped cigarettes also were found in the trunk. At this point the officers arrested the appellant. The boxes of meat were later determined to be the property of Jacksonville High School.

We first observe that the policemen did not stop appellant. Neither did they detain him until after they saw the contents of the trunk of his car. In Tillman, Huggins & Byrd v. State, 275 Ark. 275, 630 S.W.2d 5 (1982), we explained the requirements of Rule 3.1. There we said:

Our Rule of Criminal Procedure 3.1 gives a police officer the right to stop and detain for up to 15 minutes any person he reasonably suspects has committed a felony. Rule 2.1 defines the test as more than an imaginary or purely conjectural suspicion, but less than probable cause. Even the higher standard of probable cause requires much less than a certainty, as it is said to exist simply if the circumstances known to the officer would warrant a prudent man in believing a suspect had committed a crime. (Cites omitted.) It does not depend on the same type of evidence as would be needed to support a conviction.

Here, when we consider the factors surrounding the appellant’s activity and conduct, it must be said a sufficient manifestation existed to suggest a reasonable suspicion on the part of the police officers that the appellant was engaged in some type of criminal activity.

Affirmed.


text:
    Edna IVEY v. Francis Gardner BRAY
    83-15
    647 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983
    [Rehearing denied April 4, 1983-1

      Bob Scott, for appellant.

      House, Holmes & Jewell, P.A., by: Daryl G. Raney, for appellee.
   John I. Purtle, Justice.

In an action brought by appellee against appellant wherein each party claimed ownership of three joint savings accounts the trial court granted summary judgment in favor of appellee. Appellant contends the trial court erred in holding that there were no genuine issues of material facts to be determined and that any interest of the appellant could only be based upon an oral or nuncupative will of the decedent, which was unenforceable as a matter of law. We agree with the decision of the trial court to grant summary judgment in favor of the appellee.

In 1979 Lula Boyd Jackson, decedent, established three separate savings accounts in the names of Edna Ivey and herself. Lula Boyd Jackson died on June 18, 1980, leaving one living relative, Francis Gardner Bray. Appellee filed a complaint in January 1981, in which he sought a determination that the proceeds of the three accounts were property of the estate of Lula Boyd Jackson. Appellee asserted he was the sole heir of decedent and therefore the accounts belonged to him. Appellant answered and alleged that it was her understanding that she was to pay all of the decedent’s expenses out of the joint accounts and that any remaining balance would be divided equally between appellant and the estate of Lula Boyd Jackson. It was admitted that the accounts were established to enable the appellant to pay the bills and funeral expenses of the decedent and that decedent retained possession of the check book and certificates of deposit. In her deposition appellant again stated it was her understanding that she was to pay all of decedent’s bills and funeral expenses and then divide the balance between herself and the appellee as sole heir of decedent.

The trial court granted appellee’s motion for summary judgment. The court found that the joint accounts were opened for the sole purpose of allowing the appellant to pay the bills and funeral expenses for decedent. The court also found that the decedent had no intent to establish or create a right of survivorship in the appellant and that such rights in this case could be based only on an oral or nuncupative will which was not legally enforceable. Finally the court held that appellant had failed to establish her claim by clear and convincing evidence and therefore the proceeds of the three accounts were to be paid into the estate of the decedent.

Appellant first argues there were genuine issues of material facts to be determined by the court. The record reveals that there was no disagreement concerning the facts surrounding the establishment of the joint accounts nor the intended purpose for such accounts. The request for admissions and the deposition of the appellant clearly admitted the accounts were established for the payment of decedent’s debts and funeral expenses. Appellant now insists that her answers to the request for admissions and her statements in deposition did not exclude other hypotheses. In response to this appellee asks that we consider the legal maxim expressio unius est exclusio alterius. We think it is proper to apply this maxim in the present case as we did in Cook v. Ark.-Mo. Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946). If appellant had other arguments she should have presented them to the trial court. It was her duty to show there was a genuine issue of the material facts after the appellee had made a prima facie showing of his entitlement to a summary judgment. Cummings Inc. v. Check Inn, 271 Ark. 596, 609 S.W.2d 66 (1980). We will not reverse the chancellor unless his ruling was clearly against a preponderance of the evidence. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981).

Appellant next argues that the court erred in holding the appellant failed to sustain her burden of proof to establish a valid interest in the accounts by clear and convincing evidence. Appellant’s argument under this theory is to the effect that the accounts established created a right of survivorship in the appellant. We are unable to determine whether such accounts were valid survivorship accounts because the accounts, or certificates, were not abstracted as required by the rules of this court. Stull, Adm’x. v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264 (1981). The appellant did not argue the right of survivorship in the trial court but instead relied upon creation of a trust account theory. Arguments presented the first time on appeal are not considered by this court. Sanders v. Neuman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981).

Affirmed.