author: DAVID NewberN, Justice. Tom GLAZE, Justice,

text:
    Dorothy L. HOWARD and Johny M. Howard v. NORTHWEST ARKANSAS SURGICAL CLINIC, P.A.: Robert Petrino, M.D., FACS, Individually; and Barbara A. Sandefur, M.D., Individually
    95-900
    921 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Smith Law Firm, by: Truman H. Smith, Donna M. Hayden , for appellants.

      Friday, Eldredge & Clark, by: Calvin J. Hall and Tonia P. Jones, for appellees Robert A. Petrino, M.D., and Northwest Arkansas Surgical Clinic, P.A.

      Bassett Law Firm, by: W. Dale Garrett and James M. Graves, for appellee Barbara A. Sandefiir, M.D.
   DAVID NewberN, Justice.

This is a medical malpractice case. Dorothy L. Howard sued Northwest Arkansas Surgical Clinic, P.A. (“the Clinic”), Robert Petrino, M.D., and Barbara A. Sandefur, M.D., seeking damages because a portion of a needle was allegedly left in her breast after an excisional biopsy. The Howards’ complaint alleged that Ms. Howard consulted Dr. Petrino and the Clinic after a mammogram revealed abnormal calcifications in her left breast. Dr. Sandefur, a radiologist, inserted a Kopan needle in Ms. Howard’s breast to “localize” the tissue to be excised. Dr. Petrino excised the tissue which was sent to Dr. Sandefur for examination. Dr. Sandefur noted in her radiology report that, while the wire portion of the needle appeared in the tissue, the barbed tip of the needle was “not seen.” The tip of the needle, consisting of a wire one centimeter long had remained in Ms. Howard’s body. It was later removed surgically.

It was alleged that Ms. Howard suffered damages including pain and suffering, medical expenses from the subsequent surgery to remove the foreign object from her body, disfigurement, and loss of earnings. The claim of her husband, Johny M. Howard was for loss of consortium. Summary judgment was entered in favor of Dr. Petrino and the Clinic on the basis of the two-year medical malpractice statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1995), although the Howards contended the statute was tolled due to fraudulent concealment of malpractice. Summary judgment was entered in favor of Dr. Sandefur on the basis of the same statute of limitations as well as on the ground that, as stated in the Trial Court’s order, “there are no genuine issues of material fact.” We affirm the judgment in favor of Dr. Sandefur and reverse the judgment in favor of Dr. Petrino and the Northwest Arkansas Surgical Clinic.

The Howards state three points of appeal. They contend the statute of limitations is unconstitutional in that it deprives them of property without due process of law contrary to the Fourteenth Amendment. We decline to consider that point because they failed to obtain a ruling on it from the Trial Court. Technical Services of Arkansas v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). We also must reject their argument that the statute of limitations was tolled, according to the exception found in § 16-114-203(b), during the time they were unaware of the presence of the foreign object. That is so because the object was discovered during the two-year limitations period. We reverse as to Dr. Petrino and the Clinic because a genuine issue of material fact remained as to whether the presence of the foreign object in Ms. Howard’s body was fraudulendy concealed from her and the statute of limitations thus tolled until she learned of it.

The biopsy was performed on November 5, 1992. Dr. Sandefur’s radiology report was also dated November 5, 1992. A subsequent routine mammogram revealed that the tip of the needle remained in Ms. Howard’s breast. Dr. Petrino so informed her on December 30, 1993. The needle tip was removed on January 31, 1994. The Howards filed their action against the doctors and the Clinic on December 21, 1994.

In their complaint, the Howards alleged that Dr. Petrino was negligent in failing to exercise reasonable and ordinary care in his treatment of Ms. Howard by failing to discover and remove the barbed tip of the Kopan needle. It alleged that Dr. Sandefur was negligent in failing to discover that the tip of the needle was in Ms. Howard’s breast because she noted in her report that “the barb is not seen, but the localizing wire is in the specimen.”

Section 16-114-203 provides, in relevant part:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.

Dr. Petrino moved to dismiss the complaint on the ground that the action was not brought within two years of the negligent act and was, therefore, barred by the statute of limitations. Dr. Sandefur moved for summary judgment on the same ground. The Howards amended their complaint to allege fraudulent concealment.

i. The foreign-object exception

At the hearing on the motions, the Trial Court treated the motion to dismiss by Dr. Petrino and the Clinic as a motion for summary judgment. The Trial Court ruled that the Howards were not entitled to the one-year discovery rule extension because the barbed tip was found within two years of the negligent act. That ruling was in accordance with our decision in Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994), where we held the language of the statute limits the one-year extension for foreign-object discovery cases to instances in which the discovery is made outside the two-year period.

2. Fraudulent concealment

a. Dr. Petrino and the Clinic

There is in the common law of this State with respect to tort cases a rule that a statute of limitations will apply when “there was no fraudulent concealment of the cause or extent of the injury.” Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934), citing Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W.2d 19 (1933). The Burton case was decided years before there was a separate statute of limitations for medical negligence. After the applicable three-year tort statute of limitations had run, Ms. Burton alleged that Dr. Tribble had negligently allowed a roll of gauze to remain in her abdomen after performing surgery. There was no direct allegation that the physician knew the gauze remained in her, but the complaint did allege that he had “carelessly and negligently withheld” from Ms. Burton “information or knowledge” of the situation. We held the Trial Court erred in overruling Dr. Tribble’s demurrer. Our opinion stated:

Appellee’s acts of leaving the ball of gauze in appellant’s abdominal cavity and his failure to apprise appellant thereof were such fraudulent concealments and continuing acts of negligence as toll the statute of limitation until appellee performed his duty of removing the foreign substance or appellant learned or should have learned of its presence.

The implication was that, because a surgeon should know whether he had left an item in the patient, there was no need to allege or prove knowledge or active concealment in order to toll the statute of limitations.

In Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943), we upheld a demurrer to a complaint which alleged that the extent of an injury did not become known until after the limitations period had run. We distinguished the Burton case by describing its holding as follows:

The court found that the negligent act had been fraudulently concealed from the plaintiff by the doctor, that there was a continuous duty on the part of the doctor to make known what he had done and that there was a daily breach of this duty, and that these fraudulent concealments and continuing acts of negligence tolled the statute until such time as the defendant should remove the foreign body or until the plaintiff knew or should have known of its presence.

Again, the reader was left with an implication that the failure to disclose the presence of a foreign object in the patient’s body constituted “fraudulent concealment” regardless of knowledge on the part of the physician.

In McEntire v. Mallow, 288 Ark. 582, 707 S.W.2d 773 (1986), the plaintiff was severely beaten by the defendant. Silicone implants in her breasts burst, and after the statutory limitation period had run she brought an action for battery for injuries resulting from that situation. Our decision was to the effect that the statute of limitations began to run when the battery occurred rather than later when the extent of injury was learned. We cited the Faulkner case and wrote:

[W]e distinguished the medical malpractice case [Burton] in which a foreign object is left in the surgical patient’s body, pointing out that a physician has a duty to disclose such misconduct and each day it continues constitutes a “fraudulent concealment.” The latter situation is now governed by a statutory limitations exception. Ark. Stat. Ann. § 34-2616 (Supp. 1985)

Ark. Stat. Ann. § 34-2616 is now codified, with some revisions not relevant here, as Ark. Code Ann. § 16-114-203.

In his remarks with respect to the order now before us, the Trial Court concluded from the obiter dictum uttered in the McEntire case, quoted above, that any time a foreign object is left by a physician in a patient, the only exception to the two-year statute of limitations is the one year from discovery provision contained in the statute. Not so.

The point of the statement in the McEntire opinion was that there is no longer a need in foreign-object cases to equate the mere existence of a foreign object in the patient to fraudulent concealment, as there is a specific provision extending the statute of limitations when such an object is discovered after the limitations period has run. The opinion made no statement about an instance in which there is an allegation and, in the summary judgment context, some evidence, to support concealment of the fact that a surgeon has allowed a foreign object to remain in the patient’s body with knowledge that it is there.

In other cases we have held knowledge of the wrong done on the part of the physician is a necessary prerequisite to a tolling of the statute. Williamson v. Edmondson & Ward, 257 Ark. 837, 520 S.W.2d 260 (1975); Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953).

Our current medical malpractice statute of limitations appeared in Act 709 of 1979 and included this language which remains in § 16-114-203 (b): “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.” A general provision found in § 16-114-202 states that the Medical Malpractice Act “shall supersede any inconsistent provision of law.” Dr. Petrino and the Clinic contend these statements obviate the common-law exception for fraudulent concealment. We hold they do not.

To begin, we have referred to the fraudulent-concealment exception in several instances since the enactment of Act 709. See, e.g., Norris v. Bakker, 320 Ark. 629, 889 S.W.2d 70 (1995); Ford’s, Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Jones v. Central Arkansas Radiation Therapy Inst., Inc., 270 Ark. 988, 607 S.W.2d 334 (1980) (referring to post-1979 cases concerning professional negligence of attorneys and physicians).

Norris v. Bakker, supra, bears some discussion here. A dentist was alleged to have touched the plaintiff’s breasts using the pretext of necessity for a lymph node examination. The complaint was filed after the two-year medical malpractice statute of limitatations had run as had the three-year tort claim statute of limitations. Ark. Code Ann. § 16-56-105 (Supp. 1995). We discussed the fraudulent concealment exception but declined to apply it because the plaintiff knew the act had occurred and the defendant did nothing to prevent her from learning of its wrongfulness. We cited this language from Wilson v. General Elec. Cap. Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992):

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.

In the case now before us there is an allegation of an act perpetrated in a way that it conceals itself. We have a defendant who had an obvious professional, positive duty to speak if he knew he had negligently left a foreign object in his patient, we have evidence that he was informed that the foreign object remained in the patient, and we have a plaintiff who could not, if the facts were as stated, have detected the fraud.

While we are sensitive to the language of the statute that the cause of action for medical malpractice accrues “the date of the wrongful act complained of and no other time,” it does not preclude this action. The alleged act of concealment is part and parcel of the wrongful act complained of. Until the concealment ends, the wrongful act continues. We cannot imagine that the General Assembly intended to allow physicians to evade responsibility for negligent acts by knowingly concealing them from their patients until after the statute of limitations had run.

It was error to grant summary judgment in favor of Dr. Petrino and the Clinic.

b. Dr. Sandefur

In a supplement to her motion for summary judgment Dr. Sandefur submitted an affidavit in which she stated her “findings” were telephoned to Dr. Petrino’s office. The radiological report she thereafter dictated stated that the barbed tip of the Kopan needle was not seen in the specimen. She also stated it was the practice of the hospital in which the report was filed to mail a copy to the treating physician. She said she did not see the patient after her insertion of the needle, and as far as she knew Ms. Howard left the hospital where Dr. Sandefur performed the insertion procedure and did not return.

Although their complaint alleged Dr. Sandefur was negligent in her failure to ascertain the presence of the barbed tip of the Kopan needle in Ms. Howard’s breast, they have given us nothing in the way of law or facts in support of their allegation that she had a duty to do so in the circumstances presented. At any rate, the two-year statute of limitations had run by the time the Howards filed their complaint against Dr. Sandefur. The Howards have presented no proof to counter Dr. Sandefur’s affidavit in which she presents facts tending to show she did nothing to conceal the fact that the foreign object remained in Ms. Howard’s breast.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Ark. R. Civ. P. 56(e). See Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985).

The judgment in favor of Dr. Sandefur is affirmed. The judgment in favor of Dr. Petrino and the Clinic is reversed and remanded for further proceedings.

GLAZE, J., dissents in part.

Dudley, J., not participating.

Tom GLAZE, Justice,

dissenting in part. I disagree with that part of the majority opinion that holds the medical malpractice statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1995), bars Dorothy L. Howard’s negligence action. Section 16-114-203 provides as follows:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such period, the action may be commenced within one (1) year from the date of the discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.

By its enactment of § 16-114-203(b), the General Assembly provided a foreign object exception to the general two-year statute of limitations for medical malpractice actions. Until provision (b) was enacted, a patient injured by a physician or medical provider had to bring his or her malpractice action within two years of the wrongful act and at no other time. With the foreign object exception, the General Assembly authorized a patient, injured by a medical provider leaving a foreign object in the patient’s body, one full year to bring suit from the date the object was discovered or reasonably should have been discovered. In other words, even if five years or ten years had passed before the foreign object was found, the injured person would have a full year to file suit. Clearly, the purpose of this legislation was to extend the time for filing suit for those injured patients who had foreign objects left hidden in their body after some type of intrusive procedure.

The appellees here argue the two-year limitation should still apply in some instances when foreign objects are involved. They lay emphasis on the wording in provision (b), by underscoring the second sentence as follows:

However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not have reasonably have been discovered within such two-year period, . . .

They reason that the above language infers Mrs. Howard’s medical negligence action is barred because she discovered the foreign object, or barbed tip, in her breast, within the two-year limitation period. Therefore, appellees assert the two-year, rather than the one-yéar, limitation period applies. While one can certainly read the literal words out of context to apply the two-year limitation in this manner, absurd results can and will occur. Such a reading, in my view, completely aborts the legislative purpose of § 16-114-203(b). The rule of law is well settled that, although the plain language of a statute is often controlling, it is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects the statute’s purpose. Ashley, Drew & Northern Ry. Co. v. United Transp. U., 625 F.2d 1357 (8th Cir. 1980).

As Mrs. Howard points out, under the appellees’ construction of § 16-114-203(b), if the barbed tip had been discovered one year and 364 days after the alleged medical negligence, she would have had only one day to commence her action. Even an injured person discovering a foreign object a month or more before the two-year period ended would be effectively precluded from filing a suit that would pass ARCP 11 muster, especially considering the complexity of the subject matter and the research and preparation required in filing such an action. The only interpretation of § 16-114-203(b) that makes sense is to apply its one-year limitation provision to all cases involving foreign objects. Otherwise, situations can and will arise under provision (b) where injured patients with foreign objects hidden in them will continue to be barred by the more restrictive two-year limitation provision. As discussed above, that runs counter to the purpose of the one-year hidden foreign object exception granting such injured patients more time to file suit.

I recognize this court’s decision in Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994), supports appellees’ interpretation of § 16-114-203 (b), but with all due respect, that decision is clearly wrong, and we should say so now. It is no answer to place the burden on the General Assembly to correct this court’s mistake in statutory interpretation — it is this court’s responsibility to do so. In sum, this court’s opinion and result reached in Thompson encourages a medical provider’s tendency to withhold and conceal medical negligence until the strict two-year limitation bars that wrongful act. Provision (b) is remedial in nature and should be given an interpretation that would allow medically injured patients a reasonable time to file suit after they discover the foreign object negligently left in them. Any other construction of the statutory law merely licenses and protects medical malpractice.

       Act 709 of 1979 was the first enactment providing a foreign object exception to the two-year medical malpractice statute of limitations.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY of Arkansas, Inc. v. Romeal K. DAVID
    95-838
    921 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Laser, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian Allen Broum, for appellant.

      Lovell, Nalley & Dale, by: Dinah M. Dale, for appellee.
   DONALD L. Corbin, Justice.

Appellant, Farm Bureau Mutual Insurance Company of Arkansas, Inc., appeals the order of the Saline County Circuit Court entered in favor of its insured, appel-lee Romeal K. David, awarding twelve percent penalty of $9,240.00 and attorney’s fees of $23,100.00, in addition to prejudgment and postjudgment interest on a confessed judgment of $77,000.00. Appellant raises two points for reversal. We find no merit and affirm.

Procedural History

Appellee was insured under a homeowner’s policy issued by appellant when his house and personal property burned on September 9, 1994. Appellee filed a complaint against appellant on December 1, 1994, claiming an amount due under the policy of $77,000.00 and stating that appellee had unsuccessfully made demand on appellant for the claim. In the complaint, appellee requested the twelve percent penalty, costs, and attorney’s fees provided for in Ark. Code Ann. § 23-79-208 (Repl. 1992). Appellant answered on December 15, 1994, alleging it had not had adequate time to complete its investigation due to appellee’s dilatory nature in providing information and authorizations to appellant. On January 5, 1995, appellant filed an offer of judgment for the policy limits of $77,000.00. That same day, appellee filed a response to the offer of judgment in which appellee accepted the $77,000.00 and moved the court for penalty and fees pursuant to section 23-79-208. Appellant responded, arguing that appellee’s motion for penalty and attorney’s fees varied the terms of appellant’s offer of judgment and therefore did not amount to an acceptance. Appellant also filed a motion to dismiss for failure to state a cause of action, arguing appellee’s delays in returning requested information left a condition precedent of the policy unsatisfied.

The trial court entered a letter opinion on February 14, 1995, identifying the issues before the court as ones of attorney’s fees and penalties. The trial court found as follows:

Proof of loss was received on September 19, 1994; a general authorization was signed in September, shortly after the proof of loss; the [appellee] was deposed on November 8th; on November 10th a demand for payment in full on or before December 1st was made; the complaint was filed on December 1st; an answer denying liability was filed on December 15th; and, judgment was confessed on January 5, 1995.

The trial court then concluded that appellant had received all the pertinent information within a few days of the proof of loss, or at least within the sixty-day period as stated in the policy, and that the period of time from the filing of the proof of loss to confession of judgment was unreasonable. The trial court ruled appellee was therefore entitled to the penalty and attorney’s fees under section 23-79-208.

On March 8, 1995, appellant filed a motion to reconsider the trial court’s letter opinion, again arguing the delaying tactics of appellee, as well as the policy’s lack of a sixty-day deadline for investigating the loss. The next day, appellee filed a response to the motion to reconsider and attached to it the one-third contingent fee agreement between appellee and his counsel.

The trial court entered a letter opinion denying the motion to reconsider on April 9, 1995. Consistent with its previous letter opinions, the trial court entered judgment for appellee on May 1, 1995. The judgment reflected that all exhibits attached to the pleadings and motions were made a part of the record. This appeal followed.

Reasonable Opportunity to Investigate

Appellant’s first point for reversal is that the trial court erred in assessing the penalty, attorney’s fees, and prejudgment and postjudgment interest before appellant had an opportunity to complete its investigation. First, we consider the award of penalty and attorney’s fees made pursuant to section 23-79-208. Then, we consider the award of prejudgment and postjudgment interest.

Section 23-79-208, as applied to the facts of this case, states as follows:

(a) In all cases where loss occurs and the . . . fire . . . insurance company . . liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.

Appellant contends that its investigation was not completed at the time suit was filed and that this failure to complete the investigation was directly attributable to appellee’s own delays in providing requested information and authorizations. Specifically, appellant points to appellee’s delay in giving a sworn statement and in supplying specific business-records authorizations.

Appellant argues that appellee unreasonably delayed his compliance with the policy’s requirement of giving a statement under oath until such a late date that the investigation could not be completed prior to appellee’s own deadline for filing suit. The cases from other jurisdictions cited by appellant in support of this argument are not binding on this court, are not applicable on these facts, and therefore are not persuasive. Appellant acknowledges that it obtained an unsworn statement from appellee a few days after the loss, but contends appellee was unreasonable in waiting until November 8, 1994, to give a sworn statement that appellant had requested on October 11, 1994.

Appellant argues it did not receive the specific business-records authorizations it needed from appellee until three days before he filed suit. Appellant maintains that, upon completion of its investigation, it promptly tendered its policy limits to appellee, and therefore should not be assessed the statutory penalty and attorney’s fees. Appellant’s reliance on McKee v. Federal Kemper Life Assurance Co., 927 F.2d 326 (8th Cir. 1991), is misplaced because that holding was based on the narrow and undisputed facts of that case, which are not similar to the facts of this case.

Appellee responds that, as the trial court found in its letter opinion, appellant was authorized to gather information on this claim on September 16, 1994, and that the fact that appellant waited until November 16, 1994, to begin examining appellant’s records and requesting additional information from him illustrates that appellant was dilatory in investigating this claim. Appellee cites Silvey Companies v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994), as authority for the proposition that the penalty and attorney’s fees are allowed, even though the insurer confesses judgment prior to trial, when the insurer cannot demonstrate that its delay was reasonable.

In Silvey Companies, 318 Ark. 788, 790, 888 S.W.2d 636, 637-38, this court quoted section 23-79-208 and stated:

Our construction of this section is straightforward: “Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, then the insurance company is required to pay, in addition to the loss, a 12% penalty plus reasonable attorneys’ fees.” Miller’s Mut. Ins. Co. v. Smith Co., 284 Ark. 124, 126, 680 S.W.2d 102, 103 (1984). The fact that the insurance company later paid the claim does not defeat the award of penalty and attorney’s fees for “ [i] t is well setded that attorney’s fees and penalty attach if the insured is required to file suit, even though judgment is confessed before trial.” Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 666, 391 S.W.2d 22, 23 (1965).
Silvey argues that there is an exception to the above stated general rule and that this exception applies where it is reasonably necessary for the insurance company to continue to investigate the loss even after payment is due under terms of the policy. See Clark v. New York Life Ins. Co., 245 Ark. 763, 434 S.W.2d 611 (1968). The argument does not prevail in this case because it was not reasonably necessary for the insurance company to continue to investigate the case for more than sixty days after the proof of loss was submitted. Here, the insurance company was notified of the fire the day after it occurred and assigned an adjusting firm to investigate the loss. By June 22, 1992, it had concluded the fire was of incendiary origin, and within thirty days after the fire Silvey had set up its arson defense. Silvey took sworn statements from both of the Rileys, and, within sixty days of the fire, it was in position to either admit or deny the claim. Silvey did not show a reasonable need for investigation past the sixty day period.

In the present case, the trial court stated that insurers have a reasonable time in which to investigate a claim before payment despite the two-month limitation set by the policy and by the statute. Here, we note parenthetically that appellant does not contest the sixty-day limitation in the policy, except in its reply brief and in oral argument, and that this court does not consider arguments raised for the first time in reply briefs, Partin v. Bar, 320 Ark. 37, 894 S.W.2d 906 (1995), or in oral argument, State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978). The trial court found that appellant had all the pertinent information within a few days of receipt of the proof of loss, noting that even the sworn statement was taken within the sixty-day period, and that the delay was not due to the fault or inaction of appellee. Thus, the trial court concluded that the period of time from the filing of the proof of loss to confession of judgment was unreasonable. We will not reverse the trial court’s findings unless they are clearly erroneous. Ark. R. Civ. P. 52(a); Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987).

It is clear that, in the present case, appellee was forced to file suit. According to Silvey Companies, 318 Ark. 788, 888 S.W.2d 636, the fact that appellant confessed judgment before trial does not affect the attachment of the penalty and attorney’s fees. As was the case in Silvey Companies, appellant was in a position to pay or deny the claim at the expiration of the sixty-day period. Also, as was the case in Silvey Companies, appellant has not demonstrated a need to continue to investigate the claim past the expiration of the sixty-day period set by the policy and statute. Consistent with Silvey Companies and on the record before us, we cannot say the trial court’s findings were clearly erroneous.

Alternatively, appellant argues the award of $23,100.00 in attorney’s fees is excessive. Appellant contends that the only evidence submitted to the trial court from which it could determine the amount of the fee was the one-third contingent-fee agreement between appellee and his counsel. Appellant cites Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984), for the proposition that automatic acceptance of a lawyer’s contract with a client is not a valid means to determine the prevailing party’s attorney’s fees.

Appellee responds that appellant has waived this argument on appeal because it did not contest below the amount or evidence of the fee. In short, appellee contends appellant raises this argument for the first time on appeal. We agree.

This court has recently stated that objections to the trial court’s award of costs must be raised in the trial court, perhaps via a motion to amend the judgment pursuant to Ark. R. Civ. P. 52(b). Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996). Similar to costs, the award of attorney’s fees is a matter for the trial court to determine. Southall, 283 Ark. 335, 676 S.W.2d 228. Therefore, to preserve this argument for appellate review, appellant was required to raise this issue in the trial court, at least by filing a motion to amend the judgment pursuant to Rule 52(b).

With respect to the award of prejudgment interest, appellant argues the award is flawed because it ignores the fact that appellant has a reasonable time to investigate the claim and makes no allowance for such time. The judgment is silent as to the date the prejudgment interest begins. With respect to the award of postjudgment interest, appellant argues the award of it is also flawed because appellant’s confession of judgment “cuts off the running of interest.” Appellant cites no authority to support these arguments.

Appellee responds that appellant did not raise these arguments below and has therefore waived them on appeal. We agree, for the same reason stated with respect to the award of attorney’s fees. Because the awarding of interest is a matter of law for the trial court, Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983), appellant was required to raise this issue in the trial court, at least by way of a motion to amend the judgment pursuant to Rule 52(b).

Confession of Judgment

Appellant’s second point for reversal is that the trial court erred in awarding the penalty, attorney’s fees, and interest because the appellant offered to confess judgment. Appellant argues that, by prompdy confessing judgment, an insurance company should be able to avoid the statutory penalty and attorney’s fees.

In support of this argument, appellant cites cases in which this court has held that, when a plaintiff amends his complaint to reduce the amount demanded, the insurance company’s liability for the penalty and attorney’s fees will be determined by whether it continues to dispute the claim or promptly confesses judgment. See, e.g., Progressive Life Ins. Co. v. Hulbert, 196 Ark. 352, 118 S.W.2d 268 (1938). If the insurance company confesses judgment, it can avoid the penalty and attorney’s fees in that situation. Id; see also Jones Excavating Contractor, Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996), and cases cited therein. Those cases are simply not applicable to the present case, where no reduction in the amount demanded is made, because the basis upon which the insurance company presumably contested payment in those cases — a dispute relating to the amount of the loss — does not exist in the present case.

Appellant relies heavily on Ark. R. Civ. P. 68 and argues that the statutory penalty and attorney’s fees defeat the salutary purpose of Rule 68, which is to encourage prompt settlement. Appellant’s argument is entirely without merit and overlooks the purpose of the statute providing for the penalty and attorney’s fees, which is to punish the unwarranted delaying tactics of insurance companies. See Silvey Companies, 318 Ark. 788, 888 S.W.2d 636. The statute and the rule are not in conflict. If we were to adopt appellant’s argument, an insurance company could delay paying a claim thereby forcing the insured to file suit and then confess judgment, all without ever being at risk for the penalty and attorney’s fees. To adopt appellant’s argument would render the statute almost worthless. Besides, this court has clearly decided this issue against appellant when it stated, as we reiterated in addressing appellant’s first argument, “[i]t is well-settled that attorney’s fees and penalty attach if the insured is required to file suit, even though judgment is confessed before trial.” Id. at 792, 888 S.W.2d at 638.

Appellee has requested an additional attorney’s fee for services rendered on appeal. Although section 23-79-208(b) allows for such an award in our discretion, we do not think an additional fee is warranted on the facts of this case.

The judgment is affirmed.

Special Justices Barbara P. Bonds and Roderick H. Weaver join in this opinion.

Jesson, C.J., Dudley and Glaze, JJ., not participating.


author: ROBERT L. Brown, Justice.

text:
    Ethridge L. CARTER v. STATE of Arkansas
    CR 95-1011
    921 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Dave Wisdom Harrod, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Ethridge Carter was convicted of murdering his wife, Shirley Carter. He appeals his conviction and life sentence on grounds of insufficiency of the evidence and various errors committed at trial. We conclude that the evidence submitted by the State was substantial and that no reversible error occurred at trial. Accordingly, the judgment is affirmed.

At about 10:15 a.m. on April 29, 1994, the Heber Springs Police Department received a 911 call that Shirley Carter had been shot at her home. She had been shot through the head with a .22 caliber semi-automatic pistol. She was still alive when the EMT’s and police officers arrived, but she subsequently died in the hospital. Ethridge Carter was later charged with first-degree murder, found guilty by a jury, and sentenced to life imprisonment.

Carter’s first point on appeal is that the trial court erred in denying his motion for a directed verdict and his post-trial motion for a judgment of acquittal notwithstanding the verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. See, e.g., Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the conviction if there is substantial evidence to support it. Misskelley v. State, supra; Galvin v. State, supra; Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture; only the evidence supporting the conviction need be considered. Id.

In order for circumstantial to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996); Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). That determination is a question of fact for the fact-finder to determine. Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). However, the fact-finder must not be left to speculation and conjecture in arriving at its conclusions on the matter. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1974). Two equally reasonable conclusions as to what occurred merely give rise to a suspicion of guilt. Id.

The evidence supporting the State’s case is summarized below. Lori Brown, a daughter of Shirley Carter, testified that her mother was age 57 at the time of her death. According to Brown, her mother was in “great spirits” just prior to her death. Brown testified that her mother had no knowledge about guns; indeed, she was “scared to death” of guns. Brown added that the deceased did not know how to use a gun.

Keith Edmonds, an emergency medical technician, testified that he was called to Shirley Carter’s residence on April 29, 1994. He knocked on the door, and Carter informed him that his wife had shot herself in the bedroom. Edmonds further testified: “And, you know, he [Carter] said be careful because, you know, the gun is still loaded.” Edmonds further explained that Shirley Carter was found on her bed in a strange position because her arms were above her head. He testified that the gun was in her left hand, which was turned palm-out away from her face.

Alan Hubbard, another EMT, informed the jury that Carter told them to be careful because Shirley Carter had a gun. Hubbard testified that he observed a gunshot wound to the right temple area and that the deceased was still “clutching” the gun as if she were about to shoot it. According to Hubbard, the gunshot wound entered the right side of the head and exited the left. Hubbard recalled that the gun was in the deceased’s right hand. In his report, he described her right arm and right hand with the gun as being draped over her head and resting on top of her left hand and arm. Hubbard carefully took the gun from Shirley Carter’s hand, using both of his hands in the process, and handed it to a police officer who took it with a pen or pencil. Hubbard denied putting the gun on safety. Hubbard described Carter’s demeanor that day as simple and very short, “almost of a sense of disgust . . . .” It was his impression that Carter seemed angry that Shirley Carter had shot herself.

Detective Mark Baugh of the Heber Springs Police Department testified that when he arrived, three EMT’s were working on Shirley Carter. Officer Ron Wildman of the police department was also present at that time. Baugh testified that he picked up the firearm which was lying on the dresser and placed it in a paper sack. He observed that the safety was on. Once he took the gun back to his office, Baugh removed the magazine and ejected the shell from the chamber. Baugh testified that he also found a spent shell casing on a night stand next to the bed. The actual .22 caliber bullet was later extracted from the bed linens. Baugh added that he asked Carter what had happened, and Carter told him that he was in the living room and that Shirley Carter had lain down to take a nap. A short while later, Carter heard a pop, and he found his wife lying in the bed with a gunshot wound. At that point, he called for help. On cross-examination, Baugh admitted that EMT Hubbard had reported that the pistol was in Shirley Carter’s right hand. It was his understanding that, other than Hubbard, no one could agree on which hand the pistol was in.

Officer Ron Wildman testified that he was the first police officer on the scene on the morning of April 29, 1994, and he arrived just after the EMT’s. Wildman testified that Shirley was lying on her bed and that a .22 caliber semi-automatic pistol was in her left hand. Wildman stated that he collected the gun powder residue samples from Shirley Carter at the hospital and from Ethridge Carter at the police station. Wildman described Carter’s demeanor as very calm, even when he was administering the gun powder residue test.

Dr. Frank Paretti, a forensic pathologist and medical examiner with the State Crime Lab, testified that the deceased’s body showed no signs of trauma except for the gunshot wound. Paretti explained that the entrance wound from the bullet was a contact wound and entered on the right side of the head. The bullet exited the left side of the deceased’s head. Paretti testified that when people sustain gunshot wounds to the head, they become limp. Berwin Monroe, a firearms examiner with the State Crime Lab, testified that the .22 caliber bullet that was recovered from the bed linens was fired from the gun that was taken from the scene. He testified that the gun would not fire when the safety was on. Gary Lawrence, who works in the trace evidence section of the State Crime Lab, testified that the gun powder residue tests from both Carters yielded negative results. Lawrence explained that the negative result could have been due to Ethridge Carter’s washing his hands. Lawrence further testified that the gun was tested to see if it emitted a detectable level of gun powder residue. The results of that test were that “very good levels” of residue were emitted from the gun. Lawrence estimated that ten percent of the firearms and ammunition combinations are non-emitters of detectable residue.

After the defense put on its case, the State called Lila Thompson, another friend of Shirley Carter’s, as a rebuttal witness. She testified that the deceased was happy on the day before her death and that she never said a word about killing herself.

From this proof, the jury was well within its bounds to conclude that Carter shot his wife, placed the safety in the “on” position, put the pistol in his wife’s left hand, and washed his own hands, thereby removing the gun powder residue. To the extent there was conflicting testimony about which hand the gun was in, this was for the jury to resolve. We have often stated that the credibility of the witnesses is a matter that lies exclusively within the province of the trier of fact. See, e.g., Walker v. State, supra; Misskelley v. State, supra.

Carter argues that the conviction should be reversed because a reasonable hypothesis exists to rebut the circumstantial evidence of guilt presented by the State. He argues specifically that Shirley Carter committed suicide as a result of her manic-depression. There was testimony at trial that Shirley had suffered from and received medication for that mental condition for over seventeen years. Dr. Frank Bivens, a family practitioner, testified that suicide is a concern among individuals afflicted with that mental illness. The deceased had other health problems as well which included inconti-nency, Wolff-Parkinson-White syndrome, and a frozen shoulder, which had been non-surgically operated on just prior to her death. Carol Wilkinson, who saw the deceased three days before her death, stated that Shirley Carter told her that she had found a plot where she wanted to be buried and added that she was lonely, depressed, and bored. According to Wilkinson, there was no doubt in her mind that Shirley committed suicide. Carter further points to testimony to show that Ethridge Carter’s fingerprints were not on the gun and that there was no sign that the gun had been wiped clean. Also, the gun powder residue tests failed to show that he had fired a weapon. Dr. Paretti testified that the wound was consistent with a suicide and that other than the bullet wound, there were no other signs of trauma. Furthermore, no motive for the killing was shown by the State. Finally, the EMT who took the pistol from the deceased’s hand — Alan Hubbard — stated that the pistol was in her right hand.

This court has observed:

Where it is shown by the evidence, on one side, that death may have been accidental, or it may have been the result of natural causes or due to suicide, and on the other side, that it was through criminal agency, a conviction cannot be sustained. Proof of death cannot rest in the disjunctive. It must affirmatively appear that death resulted from criminal agency.

Kagen v. State, 232 Ark. 189, 194, 334 S.W.2d 865, 867 (1960) (quotation marks and citation omitted). We have further observed:

This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all.

Johnson v. State, 210 Ark. 881, 882, 197 S.W.2d 936, 936 (1946), quoting Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932).

We do not believe that suicide is a reasonable hypothesis for the death of Shirley Carter. In deciding as we do, we focus on the evidence produced by the State, which we deem to be substantial, and on the fact that the State’s evidence disparages the reasonableness of the suicide theory. To reiterate in part, two witnesses at the scene testified that the gun was found in Shirley Carter’s left hand, which would make a straight shot from right temple through to left temple virtually impossible, or at the very least, exceedingly difficult and unlikely. According to her daughter, Lori Brown, the deceased did not know how to use a gun. Shirley Carter’s hands were found in an awkward position, and revealed no powder residue from a gun that was an emitter. Further, the pistol’s safety was “on,” and no one at the crime scene admitted activating it. And, lastly, Shirley Carter could not have engaged the safety after a shot to her head.

Carter makes two additional allegations of error: (1) attempts to influence the jurors in the courtroom prejudiced his case, and (2) jurors failed to report attempts to influence them by family and friends of the deceased which amounted to juror misconduct. The first issue relates to the conduct of another daughter of Shirley Carter’s, Linda O’Donald, during closing arguments when she shook her head in disagreement with what defense counsel said. At a hearing on Carter’s motion for a new trial, Sheriff Wayne Milligan testified that he told her to stop doing that during a recess, but that none of the jurors saw O’Donald’s displays. At the same hearing, no juror stated that he or she saw O’Donald’s conduct. Carter also makes reference to the fact that Juror Gibson overheard others talk about the mysterious deaths of Carter’s previous wives, but Gibson reported the incident to the court and was dismissed as a juror. None of the other jurors stated that this comment was overheard.

The rule is well settled that prejudice will not be presumed and that reversal will not be warranted absent a showing of prejudice. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996); see also Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993). Here, the jurors did not see O’Donald’s conduct or hear the reference to Carter’s previous marriages as Juror Gibson did. No prejudice, as a result, has been shown.

Carter’s next point is that juror Norma Hayes fell asleep during the trial. Because the juror missed an undetermined amount of evidence, argues Carter, the resulting verdict is tantamount to his being convicted by a jury of eleven. Carter adds that the sleeping juror was prima facia evidence of juror misconduct. Without adducing authority, Carter argues that no objection was necessary to preserve this point, and at trial, no objection was made. In Sheriff Milligan’s affidavit, he states that he observed the sleeping juror and that he informed the court about the incident.

In the trial judge’s letter order denying the motion for judgment of acquittal notwithstanding the verdict, the judge explained that the sleeping juror was brought to his attention and that he ordered the windows to be opened and called a recess. The court further stated:

It is apparent to the court that this report of the sheriff as to a sleeping juror was known to the state and the defendant at the time it occurred.

This court has held that “a claim of jury misconduct raised for the first time in a motion for new trial be accompanied by an affirmative showing that the defense was unaware of the misconduct until after the trial.” Oliver v. State, 322 Ark. 8, 20, 907 S.W.2d 706, 713 (1995); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989). No such showing was made here. The defense was aware of the sleeping juror and did nothing to correct the situation. Thus, the issue is not preserved for appeal.

Finally, Carter contends that it was error to give the jury the verdict forms with the guilty verdict form on top of the not-guilty verdict form. Carter contends that the not-guilty verdict form should be considered first. He cites no authority for his argument, however, and it should not be considered for that reason. See Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995).

The record in this case has been reviewed for other prejudicial error pursuant to Supreme Court Rule 4-3(h), and none has been found.

Affirmed.

Dudley, J., not participating.

       In Officer Wildman’s incident report, he described the pistol as being “in one of her hands.”


author: Robert L. Brown, Justice.

text:
    James Earl NELSON v. STATE of Arkansas
    CR 95-1155
    921 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Robert S. Blatt and Timothy C. Sharum, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Robert L. Brown, Justice.

Appellant James Earl Nelson was convicted of battery and the unlawfifi discharge of a firearm from a vehicle, which arose out of a drive-by shooting. Ark. Code Ann. §§ 5-13-201 and 5-74-107 (Repl. 1993). He received a total sentence of twenty-five years. He premises his appeal on three errors: (1) a double jeopardy violation caused by conviction and sentencing for two offenses which contain essentially the same elements; (2) error in instructing the jury as to parole eligibility, scienter, and a lesser-included offense; and (3) failure to grant a mistrial due to cumulative error. We conclude that none of these alleged errors is preserved for our review, and for that reason we affirm.

Testimony at trial was that Nelson and two codefendants, Don Walker and James Atchison, were in Fordyce on December 31, 1994. That evening they had attended a New Year’s Eve party where the victim, Howard Belin, was present. They were asked to leave because the party was for younger people. They left, but then returned, and Nelson, according to his codefendants, fired five shots into the crowd ofpartygoers and struck Belin in the back. When he shot, again according to the testimony of witnesses, he uttered words to the effect that he was not getting any respect. As a result of one shot, Belin was rendered a paraplegic. The irony of the situation was that Nelson himself was confined to a wheelchair at the time of the shooting because of a previous bullet wound to his back.

Following his trial on charges of both first-degree battery and first-degree firing from a vehicle, he was sentenced to fifteen years with ten suspended on the battery charge and twenty years on the second charge. The sentences were run consecutively for a total sentence of twenty-five years.

Nelson’s first point on appeal is that it was error for the trial court to enter a judgment of conviction with sentences for both battery and unlawful firing from a vehicle. Nelson contends that successive punishments for the two offenses violates the Double Jeopardy Clause under the United States Constitution as well as state law. The State, however, counters that Nelson did not make this argument to the trial court, and for that reason it is not preserved for appeal. We agree that Nelson did not preserve this issue for our review. We have made it clear that we will not consider arguments, even constitutional arguments, which are raised for the first time on appeal. See Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Moreover, our rules state that failure to raise the constitutional issue at the trial court level leaves collateral attack against the judgment under Rule 37 as Nelson’s sole recourse. See Ark. R. Crim. P. 37.1(a); see also Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995) (per curiam).

Nelson’s second contention is that the trial court erred in failing to instruct the jury on parole eligibility, definitions of “knowingly” and “recklessly” under the first- and second-degree offenses of firing from a vehicle, and on the lesser-included offense of second-degree battery. Despite this assertion on appeal, trial counsel raised no objections to the instructions as given; nor did he proffer instructions on those points to the trial court so that they could be included in the record of this case for our review. This argument, as a result, has no merit. See Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986).

For his last point, Nelson urges that the trial court erred in failing to grant his motion for a continuance so that defense witnesses would have time to appear and, further, in not sanctioning the prosecuting attorney for failure to divulge information prejudicial to the State. He makes this argument in terms of cumulative error on the trial court’s part which, he contends, mandates reversal and a new trial. However, no such motion or objection was made to the trial court below. Hence, we will not address it. See Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).

Furthermore, on an individual basis, the allegations of error are meritless. With respect to Nelson’s motion for a continuance, Rule 27.3 of the Arkansas Rules of Criminal Procedure allows a trial court to grant a continuance “only upon a showing of good cause.” In addition, the denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). An appellant bears the burden of showing abuse of discretion and of demonstrating prejudice. Id. Here, trial counsel told the trial court that he would be ready for trial, and then reversed himself and asked for a continuance after the jury had been seated and opening statements had been made because some of his witnesses had failed to appear. Trial counsel was not certain that these witnesses had been served with subpoenas. Lack of diligence in having his witnesses present is a legitimate ground for denying a motion for continuance. There was no error committed by the trial court in denying the motion. See Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).

Concerning the State’s failure to divulge information about the criminal record of prosecution witness and codefendant James Atchison, Rule 17.1 of the Arkansas Rules of Criminal Procedure provides that, upon timely request, the prosecutor must disclose any prior criminal convictions of the State’s witnesses. Ark. R. Crim. P. 17.1(a)(iv). Rule 17.3 further provides that the prosecutor shall use diligent, good-faith efforts to obtain material in the possession of other government personnel. Ark. R. Crim. P. 17.3(a). Noncompliance with these rules can be the basis for reversal. However, the key to determining if a reversible violation exists is whether the defendant was prejudiced by the prosecutor’s failure to disclose. See Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

In the instant case, Nelson was allowed time to review the information about Atchison’s criminal record. Moreover, Atchison admitted on the witness stand that he had a prior record of six felony convictions, and his credibility was impeached accordingly. Furthermore, Nelson has not shown what additional use he would have made of this information, if he had been given a continuance or had known about it in advance. In sum, a showing of prejudice was lacking. See Scroggins v. State, supra; Baumgarner v. State, supra. The point has no merit.

Affirmed.

DUDLEY, J., not participating.

       Counsel for Nelson on appeal did not represent him at trial.


text:
    Joyce PRIMM, et al. v. U.S. FIDELITY & GUARANTY INSURANCE CORPORATION
    96-101
    922 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Phillip J. Milligan, for appellants.

      Warner, Smith & Harris, PL.C., by: Joel D. Johnson, for appellee.
   ROBERT L. Brown, Justice.

This case is an appeal from a defendant’s verdict in favor of appellee United States Fidelity & Guaranty Insurance Company (USF&G), the insurance carrier for the Van Burén School District. The appellant, Joyce Primm (formerly Joyce Suggs), argues that the trial court erred in refusing to give two instructions and further erred in permitting the school principal to sit at the counsel table with USF&G’s counsel. Because we find merit in the failure to give an instruction on the existing condition of Primm’s son, we reverse and remand for a new trial.

Jerrod Suggs, a six-year old at the time of his accident, was diagnosed with spina bifida at birth. As a result of his condition, he is paralyzed from the waist down and is confined to a wheel-chair. His bones are osteoporotic and brittle, thereby making them susceptible to breakage. In 1993, he attended his second year in kindergarten at J.J. Izard Elementary School, which is part of the Van Burén public school system. At the time of the accident in question, Jerrod’s kindergarten teacher, Jean Perkins, knew of his need for special treatment. She was told that he was to be given the same supervision as her other students. Among other things, his condition made him susceptible to colds, and on cold days, he stayed indoors during recess.

On November 1, 1993, Jerrod was forced to stay inside during the afternoon recess due to cold weather. Jean Perkins stayed inside with him. When recess was over, she left the classroom and entered the hallway to supervise the return of her other students, a procedure that normally took her about five minutes. On this particular day, she left the door to the classroom open. A few minutes after Ms. Perkins left the classroom, one of Jerrod’s classmates began pushing him around the room in his wheelchair. The chair tipped over, and Jerrod fell to the floor. A school janitor was in the restroom connected to the classroom at the time of the accident and notified Ms. Perkins. When she examined him, Jerrod was discombobulated and had a red mark on his face, but he appeared not to be hurt. Jerrod’s bus driver arrived moments later, and it was decided that the bus driver would take Jerrod home and tell Jerrod’s mother, Joyce Primm, about the accident. This was done. Jerrod was absent from school for three days following the accident and returned to school on November 5, 1993.

On November 7, 1993, Jerrod’s mother noticed a deformity in Jerrod’s left thigh and took him to the emergency room of Sparks Regional Medical Center in Fort Smith. X-rays were taken, and it developed that Jerrod had a fracture of his left femur. In the ensuing operation, a traction pin was surgically inserted into the bone just above the knee so that weights could be attached to the pin to keep the bones aligned during the healing process. Jerrod was then placed in a “spica cast,” which started at his waist and extended down both legs.

Joyce Primm subsequently filed a direct action lawsuit against USF&G as the liability insurance carrier for the Van Burén School District #42 pursuant to Ark. Code Ann. § 23-79-210 (Repl. 1992). The complaint alleged that Jerrod’s injuries were caused by the negligence of the agents and employees of the school district (1) in failing to provide a proper, safe environment for an elementary student, (2) in allowing elementary school age children to remain unattended in a classroom, (3) in failing to provide reasonable supervision and precautions for the safety of elementary students, and (4) in failing to provide reasonable supervision and precautions for the safety of handicapped students while on the premises of J.J. Izard Elementary School. A trial was held, and the jury returned a verdict in favor of USF&G.

Joyce Primm’s first argument pertains to the trial court’s refusal to give a jury instruction on the effect ofjerrod’s preexisting condition on his injuries. In arguing her case to the trial court, Primm’s counsel made the following record before closing arguments on the court’s refusal to give certain instructions:

Judge, we tendered Instructions that the Court refused. Particularly, the Court refused a tendered Instruction instructing the jury that, in essence, you take the plaintiff as you find them, and that because a plaintiff is more predisposed to injury than another plaintiff, that they cannot basically, they have to take the plaintiff as they find them. Clearly, A.M.I. on the damages, accounts for that. There was the A.M.I. damages Instruction I tendered with three (3) elements; first, the nature, extent and duration of any injury, and then the added paragraph, “Because ofjerrod’s condition, in this regard you should consider [the] full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of the condition that already existed and predisposed Jerrod to injury to a greater extent than another person,” and then the reasonable expenses, and Third, “Pain and suffering and mental anguish.” The Court allowed the Second and Third, and it disallowed the First, and I think clearly that was established by the evidence, it should have been granted.

The quoted language to the trial court was taken from AMI 2203 entided “Measure of Damages — Aggravation of Preexisting Condition.”

There is, initially, the procedural argument raised by USF&G. Though Primm abstracts a requested instruction on this point with the three elements described above and shows it marked “refused,” a proffered instruction in writing with these three elements is not contained in the record. What is contained in the record is an instruction on two of the elements — reasonable expense of medical care and pain and suffering — which was given. The quoted language above regarding the aggravation of a preexisting condition, which is Arkansas Model Instruction 2203, was refused by the trial court.

We conclude that the record evidences a proffer of AMI 2203. It is clear from the statement of Primm’s counsel quoted above that he had tendered an instruction to the court which was refused. When he made his record on the rejection, he read into the record the rejected instruction — AMI 2203. Under these circumstances, that was sufficient.

Turning to the merits, there was ample testimony before the jury that Jerrod Suggs qualified as an “eggshell plaintiff,” that is, one who was susceptible to enhanced injury by virtue of an existing condition. Dr. William Sherrill, Jr., was the treating orthopaedic surgeon for Jerrod and testified by evidentiary deposition. Dr. Sher-rill described Jerrod’s spina bifida and osteoporosis and stated that the reason no bruising occurred on Jerrod’s leg was that “it .takes very minor trauma to cause fractures in these children with these very soft bones.” Later, he added:

The bones, because they are not exercised, do not bear weight and cannot be used ... are smaller ... much thinner and [have] osteoporosis in them from essentially the waist down_The osteoporotic bones are very easy to break ... because of the thing.

As already set forth, Primm requested AMI 2203 setting forth the law that she should be compensated to the full extent of her son’s injury even though the degree and extent of the injury were caused by his existing osteoporosis.

USF&G contends that because the jury found in its favor, this amounted to a finding of no liability. Hence, it argues, failure to give a damage instruction like AMI 2203 was at worst harmless error. Though the argument has some surface appeal, we are not convinced that AMI 2203 is merely a damage instruction. Rather, it embraces definite aspects of proximate causation when it discusses aggravation of an existing condition and predisposition of the plaintiff to injury to a greater extent than another person.

The precept at issue here is known as the “eggshell plaintiff” rule. Simply stated, the rule embraces the principles that a tortfeasor must accept a plaintiff as he finds him and may not escape or reduce damages by highlighting the injured party’s susceptibility to injury. See Benn v. Thomas, 512 N.W.2d 537 (Iowa 1994); Hoffman v. Schafer, 815 P.2d 971 (Colo. App. 1991) aff’d Schafer v. Hoffman, 831 P.2d 897 (1992); Casey v. Fredrickson Motor Express Corp., 99 N.C. App. 49, 387 S.E.2d 177 (1990); see also Prosser and Keeton on the Law of Torts § 43, p. 292 (5th ed. 1984).

In Benn v. Thomas, supra, the Iowa Supreme Court confronted the same issue before this court. The plaintiff’s decedent had a prior heart condition and suffered a bruised chest and fractured ankle in a car accident. He died of a heart attack following the accident. The plaintiff sought an instruction based on the “eggshell plaintiff” rule, which the trial court refused on the basis that the jury had been given the general instruction on proximate causation. The Supreme Court reversed the trial court and commented on whether the proposed instruction was one involving damages or proximate cause:

Defendant contends that plaintiff’s proposed instruction was inappropriate because it concerned damages, not proximate cause. Although the eggshell plaintiff rule has been incorporated into the Damages section of the Iowa Uniform Civil Jury Instructions, we believe it is equally a rule of proximate cause.

Benn, 512 N.W.2d at 539; see also Sumpter v. City of Moulton, 519 N.W.2d 427 (Iowa App. 1994). The same holds true in Arkansas.

We have had occasion to review the failure to give AMI 2203 as alleged error following a defendant’s verdict. See Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). In Simpson, we concluded that it was not error to refuse the instruction, but we did so on the basis of failure of proof that a previous condition had been aggravated and not because AMI 2203 was a damage instruction which rendered the issue moot.

We conclude that it was error not to give AMI 2203 in this case. Jerrod had a prior bone condition that made him susceptible to injury as Dr. Sherrill testified. Predisposed to injury as he was, he readily qualified as an “eggshell plaintiff.” His susceptibility to injury is precisely what AMI 2203 contemplates, and the instruction requires compensation for the full injury sustained. Without AMI 2203, the inference or, indeed, the overt argument might prevail that the injured party’s predisposition to injury was a defense for the defendant. Indeed, it was emphasized throughout this trial how brittle and susceptible to broken bones Jerrod was. Because of this, we do not agree with the trial court that the evidence supports USF&G’s theory that what occurred was a new break that had nothing to do with Jerrod’s osteoporosis.

We further note that a general verdict was rendered in this case which reads: “We the jury find for the defendant.” That verdict could have been based on a finding of no liability or no damages or both. We observe that special interrogatories concerning liability or damages were not requested by USF&G. That leaves this court in the position of not knowing the basis for the jury’s verdict. See Smith v. Babin, 317 Ark. 1, 875 S.W.2d 500 (1994); Harding v. Smith, 312 Ark. 537, 851 S.W.2d 427 (1993); see also Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994). We will not speculate on what the jury found. See Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993).

Since this matter is remanded, we comment on the two remaining issues raised by Primm that are likely to reoccur on retrial. We find no error in the trial court’s refusal to give the Presumption Instruction. This issue arose because the handwritten statement by Ms. Perkins following the accident was not made available to Primm; only a typewritten statement was. Primm contended that because the handwritten statement was not provided, all presumptions concerning what the statement contained must be made in her favor and that the jury should be instructed accordingly. While Primm correctly states the presumption principle on failure to produce discoverable material [see Thomas v. Farm Bureau Ins. Co. of Arkansas, 287 Ark. 313, 698 S.W.2d 508 (1985)], the principal of the school, Phil Hays, testified that the handwritten statement was not available and that the typewritten statement was taken from it, which was normal procedure. As we held in the Thomas case, the presumption only arises where the party relying on a document has possession of it and does not produce it. The proof does not support the fact that the handwritten statement was withheld from Primm.

Primm also urges that the trial court erred in permitting Principal Hays to sit at the counsel table as USF&G s representative. The trial court permitted this under the exception to Rule 615 regarding exclusion of witnesses for “a person whose presence is shown by a party to be essential to the presentation of his cause.” Ark. R. Evid. 615(3). Primm was upset by this turn of events because of the principal’s popularity in the community, and she contended, among other things, that the superintendent of the school district might have been the more appropriate representative. Primm, however, presents us with no authority to shore up her theory that the trial court abused its discretion. Accordingly, we decline to research the point or to reach the issue. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Reversed and remanded.