author: Donald L. Corbin, Justice.

text:
    Bernard C. SMITH and Frances Smith v. Jack L. STEVENS
    92-1450
    855 S.W.2d 323
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993
    [Supplemental Opinion on Denial of Rehearing July 19, 1993.]

      Odell Pollard, P.A., for appellants.

      David Hodges, for appellee.
   Donald L. Corbin, Justice.

Appellants, Bernard C. Smith and Frances Smith, filed suit against appellee, Jack L. Stevens, in the White Circuit Court seeking damages for Mrs. Smith’s personal injuries as well as damages to their automobile arising out of an automobile collision. Appellee counterclaimed for property damages to his automobile and personal injuries of his wife, who was a passenger in his vehicle. The case was tried to a jury which found both drivers equally at fault. The trial court entered judgment in accordance with the verdict whereby the complaint and counterclaim were dismissed, Mrs. Smith and Mrs. Stevens were respectively awarded $346.60 and $1,715.60 in personal injury damages. Appellants appeal the judgment contending the trial court erred in two respects while instructing the jury. We find no error and affirm.

The evidence at trial revealed that the collision occurred on Christmas Day, 1991, on the crest of a hill on a two-lane gravel road. The road narrows to one lane so that from 30 feet north of the crest to 40 feet south of the crest, only one vehicle may pass at a time. Appellant Mr. Smith was driving north and appellee Mr. Stevens was driving south. The two vehicles collided at the crest of the hill. Both drivers testified they did not see the other vehicle until approximately two seconds prior to impact and that both made efforts to stop their respective vehicles upon sighting the approaching vehicle.

As their first argument for reversal of the judgment, appellants contend the trial court erred in refusing to instruct the jury on the duty of a motorist approaching a one-way passage. Appellants submitted an instruction based on AMI 901 and included the following paragraph as a proposed additional common law rule of the road to be considered by the jury in determining negligence:

“[W]here two drivers approaching from opposite directions meet at a passage so narrow as to make it impossible or dangerous for both to pass at the same time, the one who first reaches the passage, or who would normally so reach it if both continued at proper speeds, has the right of way, and it is the duty of the other driver to refrain from entering such narrow passage until the first vehicle has safely cleared it.”

On appeal, appellants argue that appellee testified he practiced the foregoing rule of the road, therefore this particular rule of the road exists in Arkansas and the proffered instruction should have been given. The trial court refused the proffered instruction stating as follows:

As a part of the citation submitted to the Court by Mr. Pollard [counsel for appellant], there is, out of ALR Annotated 47, Second, on page 146, this comment: “In the absence of a specific statute relating to the right-of-way over a one-way bridge or passage too narrow for vehicles moving in opposite directions to pass,” which is what we have in Arkansas, “the duty devolves upon the operators of both vehicles to exercise ordinary care to prevent collisions . . .” And the Court will be giving an instruction on ordinary care, so this is refused.

We agree with the trial court’s foregoing analysis. AMI 901 is a statement of the common law rules of the road and instructs the jury that a failure to meet the standard of care required by the rules of the road constitutes negligence. Thus, in order for the trial court to have instructed the jury as appellants requested, it would have been required to find the existence of a common law rule concerning the right-of-way over a one-way passage too narrow for vehicles moving in opposite directions to pass. However, this court has never recognized a common law rule concerning the right-of-way over a one-way passage too narrow for vehicles moving in opposite directions to pass, nor is there an Arkansas statute on this subject. In addition, the trial court would have been required to find the requested instruction applicable to the particular facts presented. The requested instruction does not apply to the facts of this case in that it assumes a situation where the drivers of the two vehicles can see the other vehicle as it approaches the narrow passage. The testimony presented revealed that each driver could not see the other until he had committed to making the narrow passage over the hill. Therefore, had the trial court determined that an additional rule of the road existed and instructed the jury accordingly, such instruction would have been an erroneous statement of the law, particularly as applied to this case.

Where a party requests an erroneous instruction, he or she may not complain of failure to charge on the subject. Williams v. First Security Bank of Searcy, 293 Ark. 388, 738 S.W.2d 99 (1987). In addition, pursuant to our per curiam issued April 19, 1965, found at AMI Civ. 3d, p. VII, when instructions are requested which do not conform to the Arkansas Model Jury Instructions (AMI) they should be given only when the trial judge finds the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990). The trial court refused the requested instruction on the basis that the instruction on ordinary negligence adequately covered the issue. Accordingly, we cannot say the trial court erred in refusing the requested addition to AMI 901.

In reaching this conclusion, we are well aware of the cases from other jurisdictions appellants cite as authority for instructing a jury on the right-of-way on a narrow passage. However, these cases are not applicable to the current case for various reasons. See e.g., Short v. Robinson, 280 Ky. 707, 134 S.W.2d 594 (1939) (requested instruction was proposed as an addition to instruction on ordinary negligence); Clark Bilt, Inc. v. Wells Dairy Co., 200 Neb. 20, 261 N.W.2d 772 (1978) (violation of a safety regulation, ordinance, or statute is merely evidence of negligence, not negligence per se as stated in AMI 901); Yell v. Wooten, 362 P.2d 1102 (Okla. 1961) (merely recognizing, without applying, the existence of such a common law rule in other jurisdictions).

As their second argument for reversal, appellants contend the trial court erred in instructing the jury on sudden emergency pursuant to AMI 614. The trial court instructed the jury as follows:

A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

Appellants claim it was error to give the foregoing instruction on sudden emergency because appellee’s negligent actions created the emergency. Appellants point to appellee’s testimony that he knew the road well and knew the hill was a dangerous one-way passage. Appellants then argue that given appellee’s knowledge of the danger, he was negligent in approaching the hill and committing to crest the hill without knowing if any other vehicle was approaching in the opposite direction. Appellee thus created the emergency that faced both drivers, argue appellants, and he should not be allowed to take advantage of the sudden emergency instruction.

We agree with appellants’ assertion that one who creates the emergency cannot take advantage of AMI 614. The instruction, by its very terms, applies only to emergencies not caused by a person’s own negligence. Moreover, this court has stated that “one may not create an emergency by his own action and then seek to take advantage of the situation by requesting an instruction on sudden emergency.” Williams v. Carr, 263 Ark. 326, 332, 565 S.W.2d 400, 403 (1978).

We do not agree, however, with appellants’ assertion that appellee’s actions created the sudden emergency. The evidence revealed that it is impossible to see any oncoming traffic until one has committed to cresting the hill and that the road is so narrow only one vehicle may crest the hill at a time. Thus, if indeed any emergency arose in this case, it was created by the nature of the hill and the road. There is simply no merit to appellants’ argument and we cannot say the trial court erred in giving the challenged instruction.

The judgment is affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JULY 19, 1993

857 S.W.2d 165

1. Appeal & error — Rehearing not granted in order to MORE CONCISELY STATE ACCIDENT SCENE MEASURMENTS WHEN THE MEASURMENTS WERE INCONSEQUENTIAL TO THE REASONING AND holding in the majority opinion. — Rehearing will not be granted merely to more concisely state accident scene measurements when the measurements were inconsequential to the reasoning and holding in the majority opinion.

2. Automobile — rules of the road — yielding to vehicle FIRST TO ENTER NARROW PASSAGE — RULE INAPPLICABLE — neither driver could see the other. — Although the original opinion did not accurately picture the road in question, the failure to fully describe the length of the one-way passage did not warrant rehearing because it was inconsequential to the reasoning and holding in this case; since neither driver could see the approaching vehicle until each had committed to cresting the hill, any rule of the road relating to the yielding of the right of way to the vehicle which has first undertaken the narrow passage was inapplicable; the lack of visibility rendered the length of the one-way passage irrelevant.

Petition for Rehearing denied.

Odell Pollard, P.A., for appellants.

David Hodges, for appellee.

Donald L. Corbin, Justice. In their petition for rehearing, appellants contend we made an error of fact which justifies a rehearing by erroneously stating in our opinion that “[t]he road narrows to one lane so that from 30 feet north of the crest to 40 feet south of the crest, only one vehicle may pass at a time.”

Appellants correctly point out that our opinion does not describe an accurate picture of the road in question. The road actually narrows so that from 30 - 40 feet north of the crest to approximately 150 feet south of the crest, only one vehicle may pass at a time. However, our failure to fully describe the length of the one-way passage does not warrant rehearing because it was inconsequential to our reasoning and to our holding in this case.

Our opinion turned on the fact that neither driver could see the approaching vehicle until each had committed to cresting the hill. Thus, any rule of the road relating to the yielding of the right of way to the vehicle which has first undertaken the narrow passage is inapplicable to this particular case because neither driver could see that the other either had or had not entered the narrow passage. The lack of visibility renders the length of the one-way passage irrelevant in this case. Any contention by appellants that our misstatement of fact confuses the issue of which driver entered the narrow passage first begs the question.

The petition for rehearing is denied.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Edward Eugene WADDLE v. Willis SARGENT, Warden, Arkansas Department of Correction
    CR 92-1227
    855 S.W.2d 919
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Edward Eugene Waddle, for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for respondent.
   Donald L. Corbin, Justice.

Petitioner filed a petition for a writ of habeas corpus in Lincoln County, the county where he is currently being held in prison. The circuit court of that county denied the petition. Petitioner appeals. The primary issue is whether he is being held in the Arkansas Department of Correction without lawful authority. He is being held without lawful authority, and, as a result, we grant the writ of habeas corpus subject to the order we deem proper.

On July 8, 1988, the petitioner was charged in the Circuit Court of Faulkner County with the rape and capital murder of Eunice Collins and was additionally charged with arson for setting the victim’s house on fire to conceal the evidence. The information alleged that the crimes took place in Faulkner County, and the case was assigned Faulkner County Circuit Court Number CR-88-152. Faulkner County is a part of the 20th Judicial District. Judge Rogers, elected, qualified, and acting Circuit-Chancery Judge of the 11th Judicial District, was assigned by the Chief Justice as the judge to hear petitioner’s case after the elected, qualified, and acting Circuit Judge for the 20th Judicial District, Francis T. Donovan, disqualified from the case. See Ark. Code Ann. § 16-10-101(b)(l) (1987). On March 9, 1989, pursuant to a plea agreement petitioner entered a plea of guilty to the charge of first degree murder in front of Judge Rogers. This plea hearing was held in Arkansas County, which is in the 11th Judicial District. Judge Rogers pronounced a sentence of life imprisonment, but did not enter a judgment of conviction or order of commitment. Judge Andre E. McNeil, Chancery Judge for the 20th Judicial District, signed the judgment and commitment order on March 14, 1989, as a circuit judge on exchange with Judge Russell Rogers.

Appellant’s first point on appeal is that the trial court lacked jurisdiction to try his case. A plea of guilty is the accused’s trial. Padilla v. State, 279 Ark. 100, 648 S.W.2d 797 (1983). Article 2, Section 10 of the Constitution of Arkansas provides in pertinent part:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law[.] [Emphasis added].

Article 7, Section 13 of the Arkansas Constitution provides that a circuit judge “shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.” (Emphasis added). In accordance with these provisions of our constitution, Ark. Code Ann. § 16-88-105 (1987) provides that circuit courts shall have jurisdiction to try criminal offenses within the bounds of the geographical judicial district as follows: “The local jurisdiction of circuit courts . . . shall be of offenses committed within the respective counties in which they are held.” (Emphasis added). Similarly, Ark. Code Ann. § 16-13-210 (1987) provides that a circuit judge who is “physically present in the geographical area of the judicial district which he serves as judge may hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any circuit court over which he presides[.]” (Emphasis added). In sum, our constitution and applicable statutes provide that a circuit judge may act in a criminal case only when he is within the geographical area of the judicial district in which the charge is filed and we have so held for over 150 years. See Sexson v. Municipal Court of Springdale, 312 Ark. 261, 852 S.W.2d 308 (1993); Auditor v. Davies, 2 Ark. 494 (1840); Dunn v. State, 2 Ark. 229 (1840).

The trial court in the habeas corpus proceeding now on appeal concluded that petitioner waived venue when he pled guilty in Arkansas County. Certainly venue may be waived in a criminal case within the territorial boundaries of the judicial district, Renfro v. State, 264 Ark. 601, 573 S.W.2d 53 (1978), but this is not a matter of venue within the territorial boundaries of the judicial district. This case involves the jurisdiction of a court acting outside the territorial boundaries of the judicial district. We have held that an extraterritorial order by a circuit judge in a criminal case is “coram non judice and void,” Williams v. Reutzel, 60 Ark. 155, 29 S.W. 374 (1895), and that jurisdiction cannot be conferred by consent. Red Bud Realty Co. v. South, 145 Ark. 604, 224 S.W. 964 (1920). Accordingly, under the facts set out to this point, it is clear that the actions taken by Judge Rogers in Arkansas County in hearing petitioner’s guilty plea and pronouncing the sentence were void.

Petitioner’s second point on appeal is that the judgment of conviction and order of commitment is invalid because it was signed by a judge, Judge McNeil, without authority to do so. The judgment of conviction and order of commitment authorize the Department of Correction to hold petitioner. A writ of habeas corpus is issued in a criminal case such as this only when the prisoner is being detained without lawful authority. Ark. Code Ann. § 16-112-103 (1987), and see Robinson v. Shock, 282 Ark. 262, 667 S.W.2d 956 (1984), for a discussion of the difference in the way we treat criminal cases, civil cases, and juvenile cases. The record does not show that Judge McNeil was ever authorized by exchange agreement or by assignment to act as Circuit Judge of the 20th Judicial District. We will take judicial notice of the fact that Judge McNeil was the elected and acting Chancery Judge of the 20th Judicial District at the time he executed the judgment of conviction and order of commitment in this case. More than a year earlier, on August 1, 1988, Judge Rogers and Judge McNeil had entered into an exchange agreement under which each could hear chancery and probate cases in the others judicial district. However, the record does not reflect any color of authority whatsoever for Judge McNeil to act as a circuit judge. Additionally, the order assigning Judge Rogers to try petitioner’s case contained this provision:

This assignment includes all ancillary proceedings which may arise in connection with said cause and proceedings subsequent thereto shall be held at such time or times as shall be directed and ordered by Judge Rogers.

We have held that the inclusion of this provision in an order of assignment deprives any other judge of authority to act in any proceeding related to the case. Hobson v. Cummings, 259 Ark. 717, 536 S.W.2d 132 (1976). As a result, only Judge Rogers could execute a valid judgment of conviction and order of commitment for petitioner. Judge McNeil was without the authority to execute a valid judgment of conviction and order of commitment in the Circuit Court of Faulkner County. Therefore, the judgment of conviction and order of commitment are facially invalid. On the facts set out to this point, it would seem clear that the petitioner is being held without lawful authority, and the writ of habeas corpus must be issued. However, an additional procedural problem must be addressed before a decision can be reached. The problem is occasioned by the below set out facts.

On November 9,1989, petitioner filed in the Circuit Court of Faulkner County a petition for post-conviction relief, under both Ark. Code Ann. § 16-90-111 (Supp. 1991) and the then existing Criminal Procedure Rule 37. Section 16-90-111 provides a narrowly defined procedure for the correction of an illegal sentence and must be acted upon within 120 days after the sentence is imposed. This petition was not filed until nearly eight months after Judge McNeil had signed the judgment of conviction and was therefore not timely for correction of an illegal sentence. On January 16, 1990, Judge Rogers, as Circuit Judge Rogers, as Circuit Judge on Exchange, signed an order in the Circuit Court of Faulkner County denying “the petition to correct an illegal sentence.” Petitioner also sought post-conviction relief under Rule 37, but the order says nothing about the petition for post-conviction relief. Petitioner gave a timely notice of appeal, but did not file the transcript within the allowable time. He sought a rule on the clerk of this court, and we denied the motion in a nonpublished opinion on March 18, 1991.

On October 22,1991, petitioner filed this petition for a writ of habeas corpus in the circuit court of the county where he was imprisoned, Lincoln County. The trial court denied the petition and petitioner appeals, which is the proper means of review of habeas corpus proceedings. See In Re Habeas Corpus Proceedings, 313 Ark. 168, 852 S.W.2d 791 (1993). The Attorney General argues that the previous post-conviction proceeding and its denial procedurally bar petitioner from seeking the writ of habeas corpus in this proceeding. The argument is without merit. First, the prior post-conviction proceeding was filed in Faulkner County and was just what it was styled, a post-conviction proceeding that was filed in the court that committed petitioner. This proceeding is not a post-conviction proceeding in the same court as held the trial, but rather is a habeas corpus proceeding in the county where petitioner is incarcerated, and is based upon the fact that petitioner is being held without lawful authority. See McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). The efficacy of the petition for a writ of habeas corpus is guaranteed by Article 2, Section 11 of the Constitution of Arkansas, and we have recognized a distinction between a petition for habeas corpus and a petition for post-conviction relief. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). Second, even if this were a second post-conviction proceeding under the then applicable version, or old form, of Rule 37, we have said that a lack of jurisdiction was always a sufficient ground under the rule, as it was then worded, to void a judgment of conviction and order of commitment. Ellis v. State, 291 Ark. 72,722 S.W.2d 575 (1987). See also Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988); Madewellv. State, 290 Ark. 580, 720 S.W.2d 913 (1986); Craft v. State, 289 Ark. 466, 712 S.W.2d 303 (1986); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Scott v. State, 267 Ark. 536, 592 S.W.2d 122 (1980). Accordingly, the petition for a writ of habeas corpus is not procedurally barred. We pass no judgment on whether this proceeding would be barred under the current version of Rule 37.

Since the petition for the writ is not procedurally barred, and since the petitioner has shown the facial invalidity of the order of commitment signed by Judge McNeil, the writ of habeas corpus must be issued. However, that does not mean that the petitioner must be set free. Rather, the writ may be issued upon such order “as may be proper.” Ark. Code Ann. § 16-112-115 (1987). Here, the judgment of conviction and order of commitment are void, but the petitioner remains charged with capital murder in the Circuit Court of Faulkner County. When a prisoner is under a charge of capital murder, the trial court may properly refuse to set bond. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied 469 U.S. 847 (1984). Accordingly, we issue the writ of habeas corpus and order the prisoner released from the Arkansas Department of Correction and placed in the custody of the Sheriff of Faulkner County to be held on the charge of capital murder. The Circuit Court of Faulkner County shall then make the decision of whether to release petitioner on bail.

Writ of habeas corpus issued as specified.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. I would first address the matter of “territorial jurisdiction” discussed in the majority opinion. Generally, territorial jurisdiction refers to a court’s authority to hear only cases that have some relationship to the geographical boundaries of that court’s jurisdiction. See Restatement (Second) of Judgments § 4 (1982). Lack of territorial jurisdiction will undisputedly void the judgment. That situation is clearly distinguishable from the one we have here where the court has proper jurisdiction in the above respect, but the trial itself is simply held in some other physical location. Under the latter circumstances, the judgment is not reviewed under that jurisdictional analysis. See Lasky v. Quinlan, 406 F. Supp. 265 (D.C.S.D.N.Y. 1976) So for example, this case is distinguishable from Sexon v. Municipal Court of Springdale, 312 Ark. 261, 852 S.W.2d 308 (1993) and Auditor v. Davis, 2 Ark. 494 (1840), cited by the majority, where there was a true problem of extraterritorial jurisdiction.

When this distinction is made, it is clear that the statutes and constitutional provisions the majority relies on refer only to limiting territorial jurisdiction, and not to the physical location of the trial itself. The language of those provisions simply does not dictate the physical location of a proceeding.

The majority also relies on Williams v. Reutzel, 60 Ark. 155, 29 S.W.2d 374 (1895) (which does address only the physical location of trial) for the proposition that where the court otherwise has jurisdiction, but the case is not heard in the established geographic place for that court, that judgment is void. That explanation of Reutzel is only partly correct. In that case the voters had specifically refused to change the county seat from Greenwood to Fort Smith. The orders being challenged in that case were from the court holding forth in Fort Smith. We found the orders void but acknowledged that this was a deviation from the general rule that such judgments could not be attacked collaterally:

It has, however, been held that the judgment of a court having jurisdiction of the person of the defendant and of the subject matter of the suit will not be held void, in a collateral proceeding, upon proof being made that it was rendered at a place other than the established seat of justice of the county, “when it is shown that all the houses at the latter place had, before rendition of the judgment had been destroyed by fire and that the court had accepted as a temporary seat of justice, the place at which the judgment was rendered.” It was so held because the county court in that case whose duty it was to provide a place for the holding of courts, had secured and set apart for that purpose the house in which the court was held and having done so in the exercise of its jurisdiction. [Our emphasis.]

Reutzel at 159.

Reutzel was distinguished from this general rule on the basis that the electorate had clearly denied Fort Smith as the county seat and the court being held there was contrary to law.

Our cases have consistently recognized the propriety of an alternative place to holding court, where the court otherwise has jurisdiction, see Warren v. State, 241 Ark. 264, 407 S.W.2d 724 (1966); Mell v. State, 133 Ark. 197, 202 S.W. 33 (1918); Hudspeth v. State, 55 Ark. 323, 18 S.W. 183 (1892); and Lee v. State, 56 Ark. 4, 19 S.W. 16 (1892). For example, in Warren v. State, supra, the defendant challenged the jurisdiction of the circuit court because of where it was heard. The electorate had voted to change the county seat to Ash Flat because of consolidation of two districts and the county seat was no longer at Hardy or Evening Shade. However, at the time of the defendant’s trial, the move had still not been made to Ash Flat. The court acknowledged the recognized exception to the place of holding court, and held the trial was conducted by the court with proper jurisdiction.

This approach is in keeping with federal law. FRCP 77(b) provides:

(b) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the district-, but no hearing, other than one ex parte, shall be conducted outside the district without the consent of all parties affected thereby. [Our emphasis.]

And see Lasky v. Quinlan, supra.

Our own Ark. R. Civ. P. 77(b), which is similar, does not touch on the subject of place of trial, but only requires that the trials be public. Ark. R. Civ. P. 77(b) and Commentary thereto. In the absence of statutory pronouncement on the matter of the place of trial, case law has provided the rule. See Reutzel, supra. And see also 18. A.L.R.3d 572 (1968) (which discusses the location of trial, which indicates that while there is no consensus whatsoever on this question, there are jurisdictions that are in line with Reutzel).

The majority also relies on Red Bud Realty Co. v. South, 145 Ark. 604, 224 S.W.2d 964 (1920). In that case the matter was heard by the appropriate judge, but at a location outside the judicial district. We found that that hearing was authorized by statute, but the authorization was limited to regular judges, and the judge in that case was a special judge. However that case is immediately distinguishable because that matter was heard on direct appeal and here it is being collaterally attacked. In any case, the opinion clearly limited the prohibitions of the special judge’s action to rendering the decree and did not otherwise invalidate the proceedings. The case was remanded to the jurisdictionally correct court, “for further proceedings as if no appeal had been taken.”

Under Arkansas law then under a collateral proceeding, there is no problem in moving the place of holding court, if the court otherwise has jurisdiction, and the move is not in contradiction of an express law to the contrary. Reutzel. Here, by the parties consent, the court (and judge) which otherwise had jurisdiction of the case, heard the case outside the district, and it is only now being attacked collaterally. There being no express law to the contrary the judgment should stand. Reutzel, supra.

The other problem in this case is the signing of the judgment by a judge who clearly did not have any jurisdiction to hear the case. The majority relies on Hobson v. Cummings, 259 Ark. 717, 546 S.W.2d 132 (1976), for holding that only the special judge could sign the judgment. That is not what the case says. It merely provides that after the regular judge had disqualified and a special judge appointed, the regular judge no longer had authority to sign any orders.

The majority also claims that “the record does not reflect any color of authority whatsoever for Judge McNeil to act as a circuit judge.” While that may be true, such a signing does not void or invalidate the judgment, nor has the majority cited any authority. To the contrary, all the authority I have found indicates the signing of the judgment is not a jurisdictional matter and, hence, not subject to a collateral attack. See 46 Am. Jur. 2d Judgments § 68 (1969); Voyles v. Voyles, 311 Ark. 186, 842 S.W.2d 21 (1992); Standridge v. State, 290 Ark. 150, 717 S.W.2d 796 (1986). Nor have I found any authority in Arkansas requiring a signature of the judge. In fact, the only authority touching on the subject, Ark. R. Cr. P. 36.4, requires pronouncement, but no signature. And see Shipmore v. State, 261 Ark. 559, 550 S.W.2d 454 (1977) which suggests that a signature is not a jurisdictional requirement.

Glaze, J., joins.

       And see Gibbons v. Bradley, 239 Ark. 816, 394 S.W.2d 489 (1965) for a fuller explanation of the companion statute to Ark. Code Ann. § 9-13-210 (1987).


author: Robert L. Brown, Justice.

text:
    Howard DAVIS, Jr., and Mapco Gas Products Company v. Harry Clinnon DAVIS
    93-4
    856 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Wright, Lindsey & Jennings, for appellant.

      J. R. Nash, for appellee.
   Robert L. Brown, Justice.

The appellants, Howard Davis, Jr., and Mapco Gas Products Company, appeal a verdict and judgment in favor of the appellee, Harry Clinnon Davis, in the amount of $175,000. They assert several errors of law committed by the trial court and urge, in addition, that the damages were excessive and the evidence insufficient. The arguments are meritless, and we affirm.

On the morning of January 24,1989, appellee Davis and his friend, William Scott, Jr., were going fishing. Davis was driving his pickup truck on Harper Road in southeast Pulaski County, and as he neared a bridge over Fourche Creek, he saw a truck approaching. That vehicle, owned by appellant Mapco, was driven by appellant Davis.

The bridge was too narrow to allow both vehicles to pass at the same time, and what happened next was disputed by the parties. According to appellee Davis, when he realized that the bridge would not accommodate both vehicles, he pulled off on the right side of the road a distance of two or more car lengths back from the bridge. He had nearly come to a complete stop when the accident occurred. Because the bridge was narrower than the roadway, the Mapco truck was in the middle of the road after crossing the bridge. According to appellee Davis, as the truck moved over toward the right side of the road, the truck’s rear fender caught the left front end of his pickup. Appellee Davis stated that he was thrown against the steering wheel and suffered a blow to his sternum.

In the Mapco version, the road and bridge bore patches of ice. Appellant Davis averred that he was driving three miles an hour across the bridge when he saw appellee Davis speeding toward him. Appellant Davis testified that the appellee lost control of his vehicle, straightened his pickup truck out, went to the edge of a ditch, lost control again, and hit the Mapco truck.

The investigating officer, Byron McWhirter, testified that it had been raining that morning and that there were no skid marks. He observed that the Mapco truck was pointing straight east and west in accordance with the direction of the road while the appellee’s vehicle had stopped at a northward angle with its front end across the center line.

Appellee Davis filed suit against Mapco and appellant Davis, alleging negligence against Davis, who was acting within the scope of his employment at the time of the accident. The appellee first claimed damages of $50,000. The appellants denied that they were negligent and counterclaimed for property damages in the amount of $3,500. Later, the appellee amended his complaint and requested $150,000 in damages.

At the trial, appellee Davis testified that before the accident his average monthly income derived from painting, roofing, and sheetrock work was “a little bit better than $2,000.” Others testified that Davis’s income was less than $2,000 per month but no one testified that it was less than $1,200 per month. The jury returned a general verdict in favor of the appellee for $175,000 and against the appellants on their counterclaim. Judgment was entered, and the appellants filed a motion for a new trial, which was denied.

I. INSTRUCTIONS TO THE JURY.

The appellants contend that the trial court erred in giving three instructions to the jury. First, they argue that the court instructed the jury wrongly on the measure of damages to be awarded. Two variants of the elements of damages to be considered in AMI 2202 are:

B. The nature, extent, duration, and permanency of any injury.
C. The nature, extent, and duration of any injury and whether it is temporary or permanent.

The trial court inserted clause B, which, the AMI Note states, should be used when the permanency of injury is undisputed. The appellants maintain, however, that clause C should have been employed, since permanency was disputed.

The appellants do concede that appellee Davis’s treating physician, Dr. Greg Farque, viewed his patient’s chest injury as “permanent.” They point out, however, that on cross-examination the doctor admitted that he made “no objective findings, except tenderness in the sternum area,” and that his conclusion was based on what the appellee had told him. The appellants also point to medical records introduced at trial which established that the appellee had been examined for chest pains at the University Hospital in Little Rock on four occasions before the accident. One of the documents revealed that the appellee stated to his examining doctor in 1988 that he had experienced chest muscle pain for eight or nine years.

Appellee Davis answers the argument by underscoring that the appellants offered no actual evidence that the injury was temporary. On the contrary, he points to Dr. Farque’s testimony: “I have to say at this point, just based on the time that it’s gone on, that it would be permanent.” He also opined that the blow to the appellee’s chest “[c]ertainly caused exacerbation and greater severity of his symptoms” and that one “would expect it to get worse with age.”

Instructions should be based on the evidence in the case, and instructions stating only abstract legal propositions or referencing matters on which there is no evidence should not be used. Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990); Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972). As there was no evidence presented to the effect that the appellee’s injury was temporary, the trial court did not err in giving AMI 2202(B).

The appellants next argue that the trial court erred in giving only the first paragraph of AMI 501 on proximate cause. That instruction reads in full as follows:

The law frequently uses the expression “proximate cause,” with which you may not be familiar. When I use the expression “proximate cause,” I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
[This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.]

The appellants correctly state that it is error to exclude the second paragraph of AMI 501 when there is evidence that an injury may have resulted from two or more concurrent causes. See Blythe v. Byrd, 251 Ark. 363, 472 S.W.2d 717 (1971). Moreover, we have recently held that we will presume prejudice from the giving of an erroneous instruction, but that the error may be rendered harmless by other factors in the case. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

In the present case, there was some evidence that appellee Davis participated in causing the car wreck. Specifically, appellant Davis testified to that effect. For that reason, the trial judge should have given the second paragraph of AMI 501. However, he did give the comparative fault instruction, AMI 2105, which contemplates comparing two causes of an accident and the negligence associated with each cause. In doing so, he rendered harmless any error committed by failing to give the second paragraph of AMI 501. See Smith v. Goble, 248 Ark. 415, 452 S.W.2d 336 (1970).

For their third point, the appellants assert error in the trial court’s giving of AMI 2206, which pertains to loss of future earnings. The basis for the argument is that the evidence presented by appellee Davis on future earnings was speculative and not sustained by sufficient proof.

The appellants cite Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968) and Cheek v. Meredith, 243 Ark. 498, 420 S.W.2d 866 (1967), which stand for the proposition that losses must be shown with reasonable certainty. They contend that the appellee failed to produce any concrete evidence to prove what his earnings in the past had been. The fact that the appellee had no records of his earnings because his house burned about a year after the accident enhances the speculative nature of the proof, according to the appellants.

We disagree. Appellee Davis was 39 years old at the time of the accident with a reasonable life expectancy. The appellee, his former employer, Dr. Dale Cowling, and his wife, Alpha Louise Davis, were all able to provide reasonably consistent testimony regarding the appellee’s past earnings. Appellee Davis estimated that his average income during the ten years when he worked for Dr. Cowling was $500 per week. He also stated that after the accident he was obliged to return a $500 down payment on a $2,500 project. He calculated that his average monthly income before the wreck was about $2,000, while his annual earnings in 1990 after the accident were between $2,000 and $4,000 and even less the following year. By the time of trial on May 7,1992, he had only made around $800 for the year.

Dr. Cowling estimated that the appellee worked for him, as required, for a weekly average of $400 “or maybe a little better than that.” Mrs. Davis testified that her husband brought home between $300 and $400 a week before the accident, but that after the wreck he made only $4,000 in 1990 and $2,000 in 1991.

As appellee Davis suggests, the cases cited by the appellants on this point are in fact supportive of the sufficiency of his proof. In Swenson v. Hampton, supra, a retired army officer sought to prove lost earnings after being injured in an accident. The court rejected his proof as insufficient and noted that the colonel “made no showing of his earnings in the military service, his earnings in any civilian pursuit, or his training or fitness for any particular occupation. No other witness, such as an employment counselor, was called to testify.” 244 Ark. at 106, 424 S.W.2d at 167. In Check v. Meredith, supra, we emphasized the failure of the plaintiff to provide proof of missing “even a day’s work for some fourteen months immediately preceding the trial. No witness testified that it was either probable or possible that she would be unable to continue working regularly. Hence, the jury had no basis, except pure guesswork, for estimating earnings reasonably certain to be lost in the future.” 243 Ark. at 500, 420 S.W.2d at 867. The absence of proof in those two cases is much more severe than what is at issue in the case before us.

We have acknowledged that in some instances involving loss of future earnings, damages cannot be proved with exactness. In those cases, we will not reverse if the cause and existence of damages have been shown despite the plaintiff’s inability to prove precisely what he has lost. Shelton v. Shelton, 296 Ark. 212, 752 S.W.2d 758 (1988); Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). We conclude that the testimony concerning damages was reasonably certain in this case.

II. MEDICAL BILLS

The appellants charge that the trial court erred in admitting as a package all of appellee Davis’s medical bills, which totalled $775. Some of these bills, the appellants point out, were for electrocardiograms; yet there was no medical testimony that the accident occasioned any heart problems. Two of the bills reflected services performed a year-and-a-half after the accident. Thus, say the appellants, the appellee failed to sustain his burden of proving both the reasonableness and necessity of these medical expenses as required by Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984).

This court noted in both Bell v. Stafford, supra, and Shelter Mutual Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988), that in some cases the testimony of the injured party alone, apart from expert medical testimony, can provide a sufficient foundation for the introduction of medical expenses incurred.

Unlike the situation in Bell v. Stafford, where the plaintiff suffered a neck injury and more than a year later entered a hospital for an examination of her gastrointestinal tract, in the present case appellee Davis testified to chest pains which his treating physician said had been aggravated by the injury. We cannot say that an electrocardiogram was unreasonable under these circumstances. Cf. National Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80, 828 S.W.2d 584 (1992). The complaints were consistent over a period of time. We believe that the reasonableness and necessity of the medical expenses was a question of fact for the jury to resolve. Roy v. Atkins, 276 Ark. 586, 637 S.W.2d 598 (1982). There was no error by the trial court in this instance.

III. DAMAGES

The appellants take issue with three components of appellee Davis’s evidence of damages: (1) medical bills, pain and suffering, and permanency of injuries; (2) property damages; (3) loss of earnings and present value of any loss of ability to earn in the future.

We have already addressed items (1) and (3). As for property damages, the appellants note that appellee Davis was driving a 1974 truck which he acquired in 1981 by doing $6,000 worth of work. The appellee, insist the appellants, failed to establish the 15-year-old vehicle’s current value. A general verdict was rendered, and the jury may or may not have included property damages in the award of $175,000. Since we cannot be certain that the jury included property damages in its verdict, we will not assume that such an award was made. See Jefferson Hospital Ass’n v. Garrett, 304 Ark. 679, 804 S.W.2d 711 (1991).

The appellants finally contend that the jury’s damage award was made under the influence of passion or prejudice. They abandon their main premise for this argument — the injection of race into the trial — in their Reply Brief. We require more than the bald assertion that a verdict is the result of passion and prejudice to reverse. Further, in reviewing the proof most favorably to the appellee, as we are required to do, we cannot say that the verdict demonstrates passion or prejudice on the part of the jury or shocks the conscience of this court. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992).

IV. MOTION FOR NEW TRIAL

Lastly, the appellants urge that the trial court abused its discretion in refusing to grant a new trial. The trial court, however, is not to substitute its view of the evidence for that of the jury unless the verdict is found to be clearly against the preponderance of the evidence. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). When the trial court denies a motion for a new trial, the test is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).

This case is a classic example of the parties’ swearing to different renditions of what happened, and the evidence presented was not easily reconciled. The matter came down to the jury’s having to accept one version of the events or the other. It is well within the jury’s province to believe or to disbelieve the testimony of any witness. Hodges v. Jet Asphalt & Rock Co., 305 Ark. 466, 808 S.W.2d 775 (1991).We cannot say that the verdict was clearly against the preponderance of the evidence.

Affirmed.


text:
    Alice HIGGINBOTTOM, Trustee, and James Franklin Higginbottom, Trustee, and Alice Higginbottom and James Franklin Higginbottom, Individually v. Jerry WAUGH and Clem Moore
    93-120
    856 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Walmsley & Blankenship, by: Tim Weaver, for appellant.

      H. David Blair, for appellee Waugh.

      Tom Thompson, for appellee Moore.
   Robert L. Brown, Justice.

The appellants, Alice Higginbottom and James Franklin Higginbottom, as trustees and individuals, appeal from a summary judgment in favor of the appellees, Jerry Waugh and Clem Moore. They urge that the circuit court erred in disallowing compensatory damages for mental anguish caused by the deceit of the appellees in misleading the Higginbottoms about the security for a promissory note. We affirm the circuit court’s decision.

On October 20, 1989, the Higginbottoms extended a $100,000 loan made to Waugh and Moore and evidenced by a promissory note. The note was secured by real property which Waugh and Moore represented was owned by them as individuals and unencumbered. Waugh and Moore subsequently defaulted on the note, and the Higginbottoms sued. The Higginbottoms then discovered that the real property granted to them as security was not owned by Waugh and Moore as individuals and that part of the property was encumbered. They sued on the note for $100,000, for “psychic injury” in the amount of $30,000, and for punitive damages totaling $400,000.

In May 1990, Waugh and Moore made an offer of judgment for the $ 100,000 plus interest. They then answered the complaint, tendered the full amount due under the note into the registry of the court, and moved to dismiss the complaint on the basis that no cause of action now existed. The Higginbottoms refused to accept the amount tendered and instead filed an amended complaint, praying 1) for $100,000 under the note, 2) for $50,000 for mental anguish caused by the deceit and $500,000 in punitive damages, and 3) for $50,000 compensatory damages and $500,000 punitive damages for the tort of outrage.

On June 28,1990, the circuit court signed an Agreed Order that the money in the court registry be distributed to the Higginbottoms and that the acceptance of this money would be without prejudice to the Higginbottoms’ causes of action for deceit and outrage. The Higginbottoms received $100,572.60 from the court registry and subsequently were awarded attorneys fees. Counsel for all parties approved the Agreed Order.

Almost two years later, Waugh and Moore moved for summary judgment on grounds that there was no legal basis to sustain the deceit claims because the Higginbottoms had been paid in full on the debt and the facts did not rise to the level of outrage. At a hearing on the motion on April 28, 1992, Waugh and Moore argued for the first time that by receiving the money from the court registry in 1990 on the debt claim, the Higginbottoms elected their remedy. The Higginbottoms disputed this at the hearing and argued that election of remedies had not been raised as an affirmative defense in the appellees’ answers or as part of their motions for summary judgment. The circuit court took the mater under advisement. On May 11,1992, Waugh and Moore amended both their answers and their motions for summary judgment to include an election-of-remedies defense and argument.

The circuit court granted summary judgment on September 2,1992, in favor of Waugh and Moore on the deceit and outrage counts. The court found, in particular, that the Higginbottoms had been paid in full on the note and, hence, suffered no damages for deceit.

The sole issue raised by the Higginbottoms in this appeal is whether damages for mental anguish were appropriately denied on summary judgment in connection with the deceit claim. We recently set forth our standard of review for summary judgments:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991) . The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S. W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992) ; Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Forrest City Mach. Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443 (1993).

We recognize no legal basis for the damages claimed for mental anguish in connection with deceit. In a 1980 landmark case, we discussed at length our history of the recovery of damages for mental distress. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In Counce, while we did acknowledge damages for mental anguish in connection with the intentional infliction of emotional distress or outrage, as it has come to be known, we did not do so for mere deceit. Nor have we done so since Counce.

Here, the Higginbottoms contend little more than that the failure of Waugh and Moore to provide security for the loan as promised caused them worry and anxiety. Because additional damages for mental anguish due to deceit are not cognizable in this state, the Higginbottoms’ claim must fail. The circuit court was entirely correct in finding no damages as a matter of law and in granting summary judgment on this point. The court did so because it perceived no damages for deceit because the Higginbottoms had been paid for the full debt. Though the court’s rationale for granting summary judgment on the deceit claim was somewhat different than that expressed in this opinion, we will affirm a court’s action, if correct, even though for a different reason. Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990).

Affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    Anthony GAINES v. STATE of Arkansas
    CR 92-1471
    855 S.W.2d 956
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      William R. Simpson, Jr., Public Defender, by: Sandy Sherrod, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Anthony Gaines appeals from his criminal conviction for rape. Gaines was charged by felony information filed on March 16, 1992 with the crime of raping a fifteen-year-old girl on or about November 16,1991. We affirm.

The prosecuting attorney requested that Gaines be sentenced under our felony sentencing statute for habitual offenders, Ark. Code Ann. § 5-4-501 (1987), on the basis that Gaines had previously been convicted of two felonies. The record reflects that Gaines was previously convicted of aggravated assault and false imprisonment in the first degree and was sentenced to six years in the Department of Correction for each charge with four years suspended and credit for ninety-one days served.

The same day as the rape charge was filed, the State filed a petition to revoke Gaines’ two suspended sentences on the basis that he had violated the conditions of his suspended sentences.

The evidence presented by the State was that the victim was fifteen years old at the time of the rape and that Anthony Gaines was and remained at the time of his trial the boyfriend of the victim’s aunt, Geraldine Pierce. The victim testified that on November 16, 1991, she and her cousin, who was fifteen at the time of the trial, went driving around with Dale Fairchild, her Aunt Kim’s husband, and Anthony Gaines in Fairchild’s car. During the evening, they drank alcohol and smoked marijuana. The victim said this made her sick, and she told Fairchild she wanted to go home. They continued to drive around and made a few stops. Fairchild and Gaines bought and drank more liquor. They ended up in someone’s backyard, where the victim said she passed out. She testified that Fairchild was fearful of taking them home in their condition, so they went to the Sportsman’s Inn around midnight to sleep. In the hotel room, the victim and her cousin got in bed fully clothed with their shoes on. When the victim went to sleep, she said Fairchild and Gaines were sitting in a chair and on a table, respectively, and were watching television. The victim said she woke up when she “had to go to the bathroom” and found Gaines on top of her. She had been undressed from the waist down. He told her to be quiet and that he was “Dale.” She tried to get up and then Gaines stood up. The victim testified that Gaines had penetrated her. The victim’s cousin awoke and turned the bathroom light on, and Gaines was next to the victim with his pants down around his ankles. Fairchild woke up and took them all home in his car.

Geraldine Pierce, Gaines’ girlfriend and the victim’s aunt, testified as a defense witness that her sister, Kay Kay Mathis, the mother of the victim’s cousin, came to her house the day before the rape occurred. Ms. Pierce said Ms. Mathis threatened her and Gaines although she did not testify as to why. The import of this testimony was never made clear by the defense since the victim was not involved in this dispute. The defense then called, as its only other witness, the policeman who took the victim’s statement at the hospital the night of the rape, and he recounted the victim’s statement of the events that occurred in the motel room the night of November 16,1991. The policeman was questioned about the report he made that night, but that report was not introduced into evidence nor was there any mention of its contents relating to whether the victim was a virgin at the time of the rape.

The jury found Gaines guilty of rape and, after instruction on the habitual offender statute, sentenced him to sixty years in prison. Based on the evidence presented at trial, the judge then revoked Gaines’ suspended sentences for the prior assault and false imprisonment charges and sentenced him to four years on each count to be served concurrently to each other but consecutively to the rape sentence.

This appeal followed.

RAPE SHIELD

On July 16,1992, Gaines filed a motion for a pretrial hearing as provided by Ark. Code Ann. § 16-42-101 (1987), our rape shield law. Gaines argued in his motion that the rape victim had given the North Little Rock Police Department a statement that she was a virgin at the time she was raped and that he sought to impeach her credibility by presenting witnesses at trial who would testify that this was not true.

Prior to trial, two omnibus hearings were held where this motion was discussed. At the first, the prosecutor made it clear that she did not intend to introduce the victim’s statement that she was a virgin prior to the rape. The trial court preliminarily ruled that the defense could have a witness present at trial to rebut that statement if she made it, although no final rulings were made. The second hearing was solely on the issue of the admissibility of the victim’s purported virginity. The prosecutor again told the court that she did not intend to bring this up on direct examination of the victim and besides, this statute was designed to protect the victim from unnecessary humiliation; that allowing this evidence would shift the focus from Gaines to the victim’s alleged prior sexual conduct, and that the victim’s virginity was not relevant. After hearing arguments from counsel on both sides, the trial court issued a letter ruling denying the defense the right to ask either the victim or the police officer who interviewed her if the victim was a virgin prior to the rape.

First, we observe that Gaines failed to abstract the court’s final letter ruling on this issue but merely listed in his brief the title, “Order,” with a transcript page number. Directly below this listing is found an abstractor’s note that:

The court’s pretrial ruling on August 18,1992, that no testimony would be allowed at trial concerning the victim’s prior sexual conduct, was inadvertently omitted from the appeal transcript. The court permitted the Appellant to supplement the record on appeal, in an Order dated (blank).

We usually do not consider arguments on appeal where the final order appealed from has not been properly abstracted by the appellant. Ark. R. Sup. Ct. 4-2. We will do so in this instance as we are able to glean the trial court’s finding from the abstractor’s note contained in Gaines’ brief.

Our rape shield statute, Ark. Code Ann. § 16-42-101 (1987) reads in pertinent part:

(a) As used in this section, unless the context otherwise requires, “sexual conduct” means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.
(b) In any criminal prosecution under §§ 5-14-103 — 5-14-110, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
(c) Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:
(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence of the victim’s prior sexual conduct and the purpose for which the evidence is believed relevant.
(2) (A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.
(B) A written record shall be made of the in camera hearing and shall be furnished to the Arkansas Supreme Court on appeal.
(C) If, following the hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.

Obviously, this statute is not a total bar to evidence of. a victim’s sexual conduct but instead makes its admissibility discretionary with the trial judge pursuant to the procedures set out at Ark. Code Ann. § 16-42-101 (c)(l-3) (1987). The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it was clearly erroneous. Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981); Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979). We have held that our rape shield statute is intended to protect victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt, Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986), and virginity is not relevant per se in a rape case. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). Likewise, evidence of prior consensual sexual conduct is inadmissible unless such prior sexual conduct took place with the accused and, if admitted, the testimony is allowed only to show that consent may have been given. Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1981); See Marion v. State, 261 Ark. 345, 590 S.W.2d 288 (1979); Houston v. State, 266 Ark. 257, 582 S.W.2d 288 (1979).

On the other hand, we have reversed a court’s refusal to allow the defense in a sexual abuse case to cross-examine the prosecutrix about her similar accusations against two other men. West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986). See State v. Mills, 311 Ark. 363, 844 S.W.2d 324 (1992).

In considering these prior holdings, we cannot decide whether the evidence of the victim’s prior conduct was admissible under the circumstances of this case because Gaines failed to proffer what the evidence would have been. If the offered proof is relevant to a fact in issue, and its probative value outweighs its inflammatory or prejudicial nature, the court may allow it to be introduced consistent with our rules of evidence. Ark. Code Ann. § 16-42-101 (c)(2)(c) (1987). While the record contains a report from the North Little Rock Police Department in which the victim claimed she was a virgin before the rape, defense counsel nowhere proffered the testimony of the witnesses he proposed to have testify to impeach her. This is not a new requirement; on numerous occasions, where the defense sought to introduce evidence of a rape victim’s prior sexual activity but no proffer of this evidence was made, we declined to consider the admissibility issue of this evidence on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). See Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989); Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980); Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979); Hill v. State, 250 Ark. 812, 467 S.W.2d 179 (1971).

CONFRONTATION CLAUSE

Gaines next argues that his sixth amendment right to confront witnesses against him was violated by not being allowed to cross-examine the victim or present testimony concerning the victim’s prior sexual conduct for the purpose of impeaching her credibility.

A review of the record reveals that Gaines failed to make this argument below, either in pleadings filed with the court, at the pretrial hearings, or at trial. We do not consider issues raised for the first time on appeal. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Even constitutional issues will not be considered when raised for the first time on appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992); Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Furthermore, we have repeatedly rejected arguments that our rape shield statute violence an accused’s right to confront the witnesses against him and his right to due process of law. Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980). See Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979) (an in camera hearing in a rape case held pursuant to [Ark. Code Ann. § 16-42-101 (c)(2)(A) (1987)], for the purpose of determining the admissibility of evidence concerning the victim’s prior sexual conduct, provides the accused with a full and fair opportunity to confront his accuser).

REVOCATION OF SUSPENDED SENTENCE

Lastly, Gaines argues that the trial court erred in revoking his suspended sentences. Since the evidence presented during his trial on the rape charge was the same evidence the trial court considered in determining that his suspended sentences should be revoked and that by not allowing the testimony concerning the victim’s prior sexual conduct, the trial court was unable to consider all the testimony necessary to reach a fair decision in this regard.

Not only was the victim’s prior sexual conduct completely irrelevant to the issue of the revocation of Gaines’ suspended sentences on prior, unrelated charges, an examination of the order of conditions of Gaines’ previous suspended sentence reveals that “not violating] any law punishable by imprisonment” was an explicit condition to which Gaines agreed. Arkansas Code Ann. § 5-4-309(d) (1987) provides that if a court finds by a preponderance of the evidence that a criminal defendant on probation or a suspended sentence has inexcusably failed to comply with the conditions of his suspension or probation, it may revoke the suspension or probation.

Gaines’ rape conviction required a finding of guilt “beyond a reasonable doubt,” but revocation of his suspended sentences required a finding based upon only “a preponderance of the evidence.” Ellerson v. State, 261 Ark. 525, 531, 549 S.W.2d 495 (1977). On appeal we do not reverse the trial judge’s decision to revoke a suspended sentence unless it is clearly against the preponderance of the evidence. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986); Morgan v. State, 267 Ark. 28, 588 S.W.2d 431 (1979). Based on the jury’s finding of guilt, we hold that the judge’s decision to revoke is supported by a preponderance of the evidence. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988) (sufficient evidence to convict a probationer of other felonies was a clear violation of the “no crimes” condition of his probated sentence).

For all the foregoing reasons, we affirm.


text:
    Mike NAZARENKO v. CTI TRUCKING CO., INC. & Randy Justice
    93-118
    856 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Wright, Chaney, Berry & Daniel, P.A., by: Don P. Chaney and Benny M. Tucker, for appellant.

      Walter A. Murray, for appellee.
   Jack Holt, Jr., Chief Justice.

Mike Nazarenko sued CTI Trucking Co., Inc. (CTI) and its driver, Randy Justice, appellees, for his injuries and damages resulting from their negligence. The jury returned a verdict in the appellees’ favor. Mr. Nazarenko then filed a motion for a new trial claiming the trial court committed an error of law by permitting testimony favorable to the appellees in violation of the collateral source rule. The trial court denied the motion and Mr. Nazarenko appeals. We agree with the trial court and affirm.

Mr. Nazarenko sustained back injuries during the delivery of a roll of carpet by CTI to his employer, Sherwin-Williams, located in Arkadelphia. According to Mr. Nazarenko, he and Mr. Justice were unloading a large roll of carpet using a “carpet jack” when Mr. Justice pushed the roll and caused a steel pipe part of the carpet jack to strike Mr. Nazarenko in the chest. To avoid being crushed, Mr. Nazarenko caught the raised carpet roll weighing about 800 bounds. He alleged that this caused his back injury which required surgery.

Mr. Nazarenko brought suit claiming that Mr. Justice was negligent in handling the roll of carpet as it was being unloaded from the truck and that he was entitled to monetary relief for the resulting damages he suffered. After the jury returned a verdict for CTI, Mr. Nazarenko filed a motion for a new trial on the basis that the trial court committed an error of law in allowing defense counsel to proceed with a line of questioning which violated the collateral source rule.

In ruling against Mr. Nazarenko on this motion, the trial court found:

The Court granted a pre-trial motion in limine whereby the Defendant’s counsel was prohibited from mentioning Workers’ Compensation or bringing such matter to the jury’s attention.
The first witness called by the Plaintiff was Mitch Fendley [Branch Manager of Sherwin-Williams] and he testified about Workers’ Compensation.
The Plaintiff testified he had not been going back to the doctor as he could not afford it. He further testified he couldn’t go back to Henderson State University as he owed them a bill and could not pay it.
The defense in chambers requested that they be allowed to cross-examine the Defendant concerning the Workers’ Compensation settlement where he received medical payments and a sum of money, that he testified before the Law Judge that he was going to use the money to pay his bills and return to college. The Court denied the defendant the right to present such testimony unless the Plaintiff continued to “open it up” before the jury. In other words, the Court would not allow the jury to be mislead [sic] by the Plaintiff.
The trial continued and there was no mention of insurance, nor [sic] was it inferred.

Under the facts before us, we cannot say that the trial court erred in denying the motion for a new trial.

The record reveals the trial court granted a pretrial motion in limine prohibiting CTI from referring to Mr. Nazarenko’s workers’ compensation payment which covered some of his medical bills. However, this information was furnished to the jury by Mr. Nazarenko’s own witness, Mitch Fendley, the branch manager of Sherwin-Williams, when Mr. Fendley stated on direct-examination that on the day of the incident he “suggested that [Mr. Nazarenko] go to the doctor and, of course, that day I called — Sherwin-Williams has an eight hundred number for their workers’ compensation program within the company.” He next said, “I called them and notified them, and we had Mike [Nazarenko], I believe, report to Dr. John Bomar for treatment.”

In his brief, Mr. Nazarenko states that he is not seeking appellate relief because Mitch Fendley’s testimony was “presented to the jury unsolicited by him and was prejudicial to him” since his own attorney brought workers’ compensation out on direct examination, but instead he “has come before this court seeking relief. . . because appellee’s counsel then intentionally and deliberately aggravated the prior injection of workers’ compensation to the jury with his questioning of Mr. Nazarenko.” Mr. Nazarenko supports his position by quoting at length trial testimony and exchanges between the court and counsel as follows.

Mr. Nazarenko testified on direct examination:

Q: Since Dr. Gocio released you, have you had flareups from time to time with your condition?
A: Yes, sir.
Q: Have you been going to the doctor?
A: No, sir.
Q: Why not?
A: I really couldn’t afford to go see him, and at one time when I was still kind of like in his care, I couldn’t get over to Hot Springs. I didn’t have a car at the time. I didn’t have a phone, and basically it wasn’t because of the money problem.
Q: Did you go back to see Dr. Bomar recently?
A: Yes, sir, I did.
Q: Did Dr. Gocio refer you back to his care?
A: Dr. Gocio said it would be all right for me to see Dr. Bomar. He didn’t have any objections to it. He was talking that I would need some kind of like a rehabilitation, and he agreed that Dr. Bomar would be all right to see.

After these questions, the following bench conference took place out of the hearing of the jury.

Mr. Murray (Defense Counsel): Judge, the evidence, from the testimony of Dr. Gocio, is that this gentleman didn’t seek medical attention for a period of a year or a year and a half.
Mr. Chaney (Plaintiffs Counsel): What?
Mr. Murray: The Claimant, from 1991 until sometime in 1992, has testified that he didn’t get medical treatment because he couldn’t afford it. I think he’s opened the door for me to inquire, not about insurance, but about the fact that his medical bills had, in fact, been paid.
Mr. Chaney: I would strongly disagree with that, your Honor. He testified the bills had been incurred, and then the future medical care that Dr. Gocio predicted that he would need, five hundred to a thousand a year — he hasn’t been spending that in the last year or so.
Mr. Murray: He said he hadn’t gone to the doctor because he couldn’t afford it. That’s why he didn’t go back
Mr. Chaney: We’re talking about the future medical.
Court: Mr. Murray, I’m going to overrule your request, and let’s proceed.
Mr. Murray: Okay, thank you.

Mr. Nazarenko later testified as follows upon cross-examination.

Mr. Nazarenko: When I worked at Sherwin-Williams, I had to take the hours that I was getting. They only have so many hours allotted to part-time employees, and I got as many hours as I could get.
Q: You lack 9 hours having your college degree in Sociology?
A: Yes, sir.
Q: Are you working on that now?
A: No, sir, I have to pay back a grant that I lost in ‘88 before I can return to school, and that’s been a problem right now.
Q: Do you remember testifying in February of 1992, here in Arkadelphia, Arkansas, that you were planning on going back to school, getting those 9 hours, and taking a sit-down type job?
A: What time was this?
Q: February of 1992.
A: I don’t recall who I would have talked to about that. I’ve talked to a number of people about returning back to school, but I don’t recall talking to you about it.
Q: No, you didn’t talk to me.
A: Okay.
Q: You were testifying in February of ‘92 that you planned to go back to college —
A: Who was I testifying to cause I don’t — the only time I remember testifying was to you back in July of ‘91,1 believe.

At this time, CTI’s counsel stated that he did not want to risk the possibility of a mistrial, and the trial judge asked the attorneys to approach the bench. The following conversation then took place:

Mr. Murray: He testified before Dail Stiles [the administrative law judge] that he was going to take his [workers’ compensation] settlement in the amount of $8900.00 and go back to school.
Mr. Chaney: Your Honor, I would say that this is just highly prejudicial and it’s designed to circumvent making an end run around the Court’s previous ruling not to talk about insurance.
Mr. Murray: Well, Judge, in that regard, they opened up insurance a long time ago in the voir dire, after they were he ones that requested the —
Mr. Chaney: No. No sir.
Court: In order words, what you’re saying is that he made his statement under oath that he was going to go back to school to take 9 hours —
Mr. Murray: And get him a sit-down job.
Court: Well, what he doesn’t understand right now is who you were talking about, or where that statement was made.
Mr. Chaney: Your Honor, I think it would be highly prejudicial to open the door to bring out the whole worker’s compensation deal at this stage of the game.
Mr. Murray: I think it is, too. You’re the ones that opened the door, not me.
Mr. Chaney: No, sir, he’s the one asking the questions. He’s trying to open his own door.
Court: Workman’s Comp, came out on Fendley’s statement on direct.
Mr. Murray: It sure did.
Mr. Chaney: It didn’t come out that he got any benefits.
Mr. Murray: See what they want is the advantage of certain testimony and then the part that hurts them, they don’t want that before the jury, and I don’t want to risk a mistrial.
Mr. Chaney: Mr. Murray is the one eliciting the testimony.
Court: I can see where he would want the statement in, but to do so is going to open up the — I can see it just as sure as the world that he’s going to end up saying it was before a worker’s comp, judge. I don’t see how you’re going to get around it.
Mr. Chaney: It’s not relevant, your Honor, what happens in a worker’s comp, case about what somebody’s plans might be.
Court: I don’t think it’s worth the risk of opening it up. Can you go on without it?
Mr. Murray: I think I can.
Court: Okay. Proceed.

Mr. Nazarenko was further questioned on cross-examination by CTI’s attorney:

Q: When you went to college, you went to college on a football scholarship? Is that correct:
A: Yes, sir.
Q: And what are you having to pay back?
A: It’s a grant.
Q: A grant?
A: It’s a grant that was supposed to pay for a year’s worth of schooling.
Q: Why would you have to pay a grant back?
A: Something came up that I did not have enough hours to qualify for the grant, and they had let me into school at the time with the saying that I would have the grant, and I come to find out at the end of the year, spring of ‘88, and when I got ready to go back in the fall of ‘88, they said that I was having to pay back $915.00 to the school.
Q: $915.00?
A: Yes, sir.
Q: And that’s the reason you’re not going to school now?
A: Yes, sir.

At this point, another bench conference was held:

Mr. Murray: His [workers’ compensation] settlement was for $8900.00, and he just now said the reason he couldn’t go back to school was because he had to pay back $900.00, and he told Judge Stiles that he planned to go back to college to get his degree with that money. Now, if I can ask what he told Judge Stiles, in February of 1992, that he intended to go back to college, that’s what I would like to do.
Court: And you won’t mention any money?
Mr. Chaney: Well, he’s trying to open his own door again, Judge. The man was way behind on his bills, and what he might plan to do in one case is simply not relevant to this action.
Mr. Murray: I don’t know anything about his being behind on his bills. He hasn’t testified to any of that, Judge.
Court: I guess the problem is if he got eight thousand dollars case money, and he says he couldn’t go back to school because he couldn’t pay the nine hundred and fifteen, it would become relevant that — well, it would appear that he’d say one thing under oath one time, and then something else under oath at another time. That’s to his credibility, is where he’s going.
Mr. Murray: That’s exactly what I’m referring to, Judge. I won’t mention workers’ comp. I’ll just ask him if he told Judge Stiles he was going to take $8900.00 that he got and go back to school.
Mr. Chaney: He wants to taint this whole thing with the workers’ comp.
Court: Okay, are you referring to him as Dail Stiles?
Mr. Murray: Yes, I’ll do that. I’ll leave administrative law judge and workers’ comp, totally out of it.
Court: In other words, you won’t go any further about money or anything else, as far as the settlement or anything like that, just detail Dail Stiles as that because I don’t—
Mr. Murray: I’m just going to ask him if when he got $8900.00, did he tell Dail Stiles he was going to take that money and go to college, and get his nine hours, and get him a sit-down job.
Mr. Chaney: Which is an attempt to taint this trial with that prejudicial evidence when he is eliciting this whole line of testimony himself.
Mr. Murray: Judge, it’s the credibility of the witness.
Court: Of course, the only problem is, like I say, Fendley said on opening that he reported the injury to his workers’ compensation.
Mr. Murray: I’ll leave insurance and workers’ comp, totally out of it.
Court: They’re aware already of workers’ comp.
Mr. Chaney: Well, it’s prejudicial for the jury to know that collateral source benefits are received whether they’re workers’ comp, or social security, and Mitch didn’t say anything about him getting any benefits.
Mr. Murray: We’re not talking about collateral source. We’re not going to discuss workers’ comp.
Mr. Chaney: It is a collateral source, and you just said you want to tell them he got $8900.00.

At this time an in camera conference was held off the record and out of the hearing of the jury. The trial then resumed.

Mr. Nazarenko’s testimony on cross-examination by Mr. Murray continued:

Q: Do you have any outstanding medical bills at this time?
Mr. Nazarenko: Outstanding medical bills — I’ve got a—
Q: That hasn’t been paid?

At this time, another bench conference was held out of the hearing of the jury:

Mr. Chaney: He’s doing it again, your Honor, trying to come in with an improper line of questioning. The Plaintiff can say he incurred the bills, and it would be highly improper and prejudicial to start questioning him about what got paid and what’s not—
Mr. Murray: I just asked if he had any unpaid bills. I think that’s a fair question. It’s that he paid them or didn’t pay—
Mr. Chaney: It’s an improper line of questioning.
Court: It’s stipulated that he incurred fourteen thousand—
Mr. Murray: Fourteen thousand worth of medical. We’ll stipulate that he incurred them. I just want to know if he’s got any outstanding ones.
Mr. Chaney: That’s an improper questioning.
Court: I’m going to overrule.

Mr. Nazarenko’s cross-examination by Mr. Murray continued:

Q: Do you have any outstanding medical bills?
Mr Nazarenko: I’m not real sure what you mean by outstanding medical bills.
Q: Not paid.
A: Not that I’m aware of. I do receive bills in the mail from a Dr. Pellegrino, and I have — that’s all that I know of. I’ve seen Dr. Bomar since then, and if those are outstanding and haven’t been paid for, then I assume that they’re outstanding.
Q: You saw Dr. Bomar just a short time ago before this trial, right?
A: Yes, sir.

Based on these excerpts and Mr. Nazarenko’s arguments on appeal, we glean that the crux of his complaint is that the cumulative effect of defense counsel questioning him about unpaid medical bills and unpaid college debts violated the collateral source rule and that the trial court was in error in not granting a new trial.

Arkansas R. Civ. P. 59 governs the award of a new trial to a party in a lawsuit. Rule 59(a) sets out eight grounds for the granting of a new trial and, without citing this rule, Mr. Nazarenko presumably argues on appeal he is entitled to a new trial pursuant to the eighth ground, error of law, because the collateral source rule was violated. Under Ark. R. Civ. P. 59(a)(8), a new trial may be granted where an error of law occurred at trial and was objected to by the party making the application and that error materially affected the substantial rights of the moving party.

We summarized the error of law argument for a new trial in Security Ins. Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229 (1973):

Error of law occurring at the trial and objected to by the moving party is one of the statutory grounds for a new trial. The trial court has a broad latitude of discretion in the granting of new trials. This discretion is not limited to cases where sufficiency of the evidence is the ground for the motion. Of course, the latitude of the trial judge’s discretion is much broader where the question is whether a jury verdict is supported by a preponderance of the evidence, because of the peculiar advantage of his position in evaluating all the factors bearing upon it. In determining questions as to errors of law, his position is not of the same superiority to that of the appellate court. Still, the action of the trial judge on a motion for new trial upon a statutory ground should not be reversed in the absence of manifest abuse of his discretion.
Manifest abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Under the circumstances prevailing here we are unable to say that the circuit judge exercised his discretion improvidently, thoughtlessly or without due consideration.

Security Ins. Co. at 529-30, 501 S.W.2d at 231-2 (citations omitted). See also Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978).

On appeal, Mr. Nazarenko cites Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984) in support of his argument, but his reliance on our holding in Patton is misplaced. In Patton, the appellee’s attorney conducted his cross-examination of the appellant in such a way that he invited comment on the payment of certain medical bills by a collateral source and then used the appellant’s response to portray him as being an untruthful person, when, in fact, the appellant had told the truth. The record before us does not reflect any similarities between the conduct of counsel in this case and counsel in Patton.

Here, evidence of workers’ compensation coverage was first brought to light by Mr. Nazarenko’s own witness and not mentioned again until Mr. Nazarenko, on direct examination, testified that he could not afford to go see a doctor. Obviously, his testimony in this regard was subject to cross-examination on this point. We cannot say that CTFs counsel, on cross-examination, invited comment as to payment by a collateral source and then attempted to use his response to show he was an untruthful person.

There are close similarities between this case and our recent decision in Babbitt v. Quik-Way Lube & Tire, Inc., 313 Ark. 207, 853 S.W.2d 273 (1993) in which we held there was no error where the trial court allowed a defense attorney to cross-examine a plaintiff in a tort case on insurance coverage after the plaintiff testified that she had not been to a doctor to obtain medical care because she didn’t have the money when she in fact had medical coverage under her husband’s insurance policy. We said:

Our recent case of Younts v. Baldor Elec. Co., 310 Ark. 86, 832 S.W.2d 832 (1992) controls. There, during direct examination, counsel asked Younts whether he had been able to reopen his business after the fire, and Younts said, “Haven’t been able to afford it.” Defense counsel argued during an in-camera hearing that Younts’ testimony opened the door for counsel to show Younts had received an insurance settlement. The trial court agreed, and we affirmed on appeal. In doing so, we cited the general rule that it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage and stated this principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant.
We further recognized in Younts, that, when a party testifies about his or her financial condition in a false or misleading manner, he or she opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral source rule. See also Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). In upholding the trial court’s rule to allow defense counsel to inquire of Younts’ insurance settlement, we stated as follows:
It is important to recognize that Younts’ testimony came when he was being questioned by his own counsel. The question asked was whether he had rebuilt the physical facilities of his business. The question was wholly irrelevant to any question in the case other than possibly that of mitigation of damages which does not appear to have been at issue. The dissenting opinion seems to conclude as a matter of fact that Younts was telling the truth or that he answered in good faith. We have no way to determine that. Appellate courts do not make those decisions. The important point is that Younts’ response that he could not afford to rebuild could very well have been misleading to the jury. In Peters v. Pierce, supra, and in York v. Young, [271 Ark. 266, 608 S.W.2d 20 (1980)], we held that in such a situation the collateral source rule does not prevent introduction of evidence of insurance.
In the present case, Babbitt’s counsel invited Babbitt to explain why she saw him before having seen a doctor. The purpose of such questioning was to give Babbitt an opportunity to say, “I didn’t have the money . . . [t]hey want their money up front when you go to the doctor... I didn’t have the money then.” As was the situation in Younts, Babbitt’s counsel’s question and Babbitt’s response had no relevance to any issue in the case. Instead, Babbitt’s testimony that she could not go to a doctor for treatment could have mislead the jury. Under these facts, we are unable to say the trial court abused its discretion in permitting Quik-Way’s counsel to elicit information that afforded the jury a complete and full picture of Babbitt’s financial situation.

Babbitt at 210-11, 835 S.W.2d at 275 (emphasis added). See also Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983) (one of the four exceptions to the collateral source rule is where collateral source evidence is used to rebut the plaintiff’s testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care), rev’d on other grounds, 284 Ark. 101, 679 S.W.2d 205 (1984).

In light of our holdings in Younts and Babbitt, we cannot say that there was a manifest abuse of discretion on the part of the trial court.

Mr. Nazarenko also argues that CTI’s counsel further aggravated the prior injection of workers’ compensation into the trial by stating in closing argument that Dr. Gocio had testified that Mr. Nazarenko’s medical bills had been paid. Examination of the record reflects that Mr. Nazarenko did not object to this statement during closing, nor did he request the trial court to instruct or admonish the jury concerning the remarks of counsel in this regard. As we said in Miller v. State, 309 Ark. 117, 120, 827 S.W.2d 149, 150 (1992), “few tenets are more firmly established than the rule requiring a contemporaneous objection in order to preserve a point for review on appeal.” Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). Thus, this issue was not properly preserved for appeal. See also Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993) (court’s failure to give an admonitory instruction was not prejudicial error in the absence of a request).

For all the foregoing reasons, we affirm.