author: BRADLEY D. JESSON, Chief Justice.

text:
    Elwanda WHITE v. CITY OF NEWPORT
    96-1
    933 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      H. David Blair, for appellant.

      Stanley Montgomery and David C. Schoen, for appellee.
   BRADLEY D. JESSON, Chief Justice.

At issue in this case is the constitutionality of Ark. Code Ann. § 21-9-301 (Repl. 1996), known as the municipal tort-immunity statute. The appellant claims that the statute violates Article 2, § 13, and Article 5, § 32, of the Arkansas Constitution. The trial court upheld the constitutionality of § 21-9-301, and we affirm.

The city of Newport owns and operates an ambulance service. On May 18, 1992, Dorse White, the husband of the appellant, Elwanda White, began experiencing heart-attack symptoms. Mrs. White dialed 911, and the city’s ambulance service responded. Mr. White was taken to Harris Hospital in Newport, then transferred to Baptist Medical Center in Litde Rock. He died on May 30, 1992. On April 29, 1994, Mrs. White filed a complaint against the city alleging that the failure of the ambulance attendants to perform resuscitative measures on her husband constituted negligence which was the proximate cause of his death. The complaint further alleged that the city’s operation of the ambulance service was a proprietary, as opposed to a governmental, activity. The city moved to dismiss the complaint on the basis that it was immune from liability, pursuant to § 21-9-301. The trial judge considered Mrs. White’s argument that the statute violated Article 2, § 13, and Article 5, § 32, but he found no constitutional infirmity. Mrs. White’s complaint was dismissed, and she brings this appeal.

Article 2, § 13, of the Arkansas Constitution reads as follows:

Every person is entided to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly, and without delay, conformably to the laws.

The pertinent portion of Article 5, § 32, of the Arkansas Constitution reads:

[N]o law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property. . . .

Mrs. White contends that the municipal tort-immunity statute abridges her rights under these two constitutional provisions. To fully understand the issues presented, it is helpful to take a brief glimpse into the history of municipal tort immunity in Arkansas. Our earliest opinions on the subject, City of Little Rock v. Willis, 27 Ark. 572 (1872), and Mayor of Helena v. Thompson, 29 Ark. 569 (1874), offer a brief, if somewhat confusing, exploration of the municipal-immunity concept. A careful reading of those cases does indicate an acceptance of the most basic idea that cities might be held liable for negligence in certain limited situations, though not in others. In Trammell v. Town of Russellville, 34 Ark 105 (1879), we elaborated on the ideas that were touched upon in Willis and Thompson. For the first time, we expressly introduced the concept that a city could be held accountable for its negligence while performing in a proprietary capacity, but could not be held liable for its negligence while performing in a governmental capacity. The governmental — proprietary distinction became the polestar of municipal immunity cases through the 1950’s. A police officer’s enforcement of the law, Franks v. Town of Holly Grove, 93 Ark. 250, 124 S.W. 514 (1910); the operation of an electric plant, City of Little Rock v. Holland, 184 Ark. 381, 42 S.W.2d 383 (1931); the maintenance of a city swimming pool, Yoes v. City of Fort Smith, 207 Ark. 694, 182 S.W.2d 683 (1944); and the operation of a garbage truck, Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S.W.2d 257 (1957), among other activities, were all found to be governmental in nature, thus affording the respective municipalities immunity from liability for negligence.

But, in 1968, the law took a sharp turn. We decided in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), that municipal tort immunity imposed such an injustice on individual victims of a city’s negligence that such immunity should be abolished. In response to our decision, the legislature passed Act 165 of 1969, which provided municipalities with immunity from tort actions. In 1993, the legislature added, for clarification purposes, the proviso that a city could be held liable to the extent it carried liability insurance. That law is now codified as Ark. Code Ann. § 21-9-301, the statute which is the subject of this case.

Ark. Code Ann. § 21-9-301 reads as follows:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability and from suit for damages, except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

This statute faced its first constitutional challenge in the case of Hardin v. City of DeValls Bluff, 256 Ark. 480, 508 S.W.2d 559 (1974). In Hardin, the appellant claimed, as does the appellant in this case, that the municipal tort-immunity law violated Ark. Const., art. 2, § 13, because it deprived her of her right to obtain redress for her injuries. We upheld the constitutionality of the statute. In doing so, we reviewed the Willis and Trammell cases and made the following observation:

It thus appears that, from the outset, our court has recognized that the drafters of our Constitution, despite Article II, Section 13 of the 1874 Constitution, never had in mind that one, without legislative authority, could receive redress for asserted wrongs against counties and cities acting in their governmental capacities.

The constitutionality of § 21-9-301 was also upheld in the later cases of Chestnut v. Norwood, 292 Ark. 498, 731 S.W.2d 200 (1987), and Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). Our research reveals no cases, nor do the parties cite any cases, in which the statute was the subject of a challenge under Article 5, § 32, of the constitution.

Mrs. White’s argument on appeal has three components. First, she discounts the applicability of the Hardin decision. She argues that our determination of § 21-9-301’s constitutionality in Hardin was limited to cases in which the statute was applied to a city acting in a governmental capacity. Second, she claims that, at the time our 1874 constitution was adopted, a citizen had a common-law right to sue a city for negligence committed while the city was acting in a proprietary capacity. She relies on the Willis and Thompson cases in support of that proposition. Third, she reasons that, if she did have a common-law right to sue a city for negligence committed in a proprietary capacity, the legislature is prevented, by virtue of the two above-mentioned clauses of the constitution, from abrogating such a right. Mrs. White’s success on appeal necessarily depends on our acceptance of the third component of her argument. Thus, we address first the question of whether the legislature may abrogate a remedy that existed at common law.

In the case of Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326 (1957), we addressed a constitutional challenge to the Arkansas automobile guest statute. We held that the statute, which prohibited persons from recovering damages from a driver who was related to them, violated Article 2, § 13, of our constitution. Implicit in our opinion was the idea that the legislature could not, under any circumstances, abolish a person’s right to recover for his injuries. In retrospect, our analysis in that case was too limited. In a well-reasoned dissenting opinion, Justice George Rose Smith foresaw the problems that could result from an inflexible application of Article 2, § 13. Such a reading of the constitution, he said, “crystallizes all common law rights of action, putting them beyond the reach of legislative change to meet new conditions”. Our analysis, he stated, should focus on “how far the constitution permits the legislature to go.” Similarly, courts from other jurisdictions have taken the approach that constitutional provisions concerning a citizen’s right to redress were adopted to prevent arbitrary or unreasonable legislative abrogation of a cause of action. See Estate of Cargill v. City of Rochester, 119 N.H. 661, 406 A.2d 704 (1979), appeal dismissed, 445 U.S. 921 (1980); Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955); Troyer v. Department of Health & Social Services, 722 P.2d 158 (Wyo. 1986). In the federal due process context, see Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978); Silver v. Silver, 280 U.S. 117 (1929). These cases, along with Justice Smith’s dissent in Emberson, convince us that the legislature must be permitted to alter the common law when it stands in the way of a reasonable public-policy objective. The common law is not a static or a fixed code, forever unchangeable by the representatives of the people. To read constitutional provisions such as the ones in this case to say that the common law must remain as it stood in 1874 would prevent the legislature from adjusting the law to the changes of time and circumstance. A literal reading of Article 2, § 13, or Article 5, § 32, could prevent the use of such concepts as comparative fault, or the abolition of such outdated causes of action as alienation of affection.

In light of this analysis, we must not restrict our constitutional inquiry to the simple question of whether § 21-9-301 abolishes or diminishes Mrs. White’s right to recover from the city of Newport. To do so would be to repeat the same mistake we made in Emberson. Instead, we must ask whether the legislature acted reasonably when it abolished or diminished that right. In section four of Act 165 of 1969, the legislature declared that, in the absence of municipal tort-immunity, cities were facing the imminent threat of bankruptcy and vital public services were in danger of being discontinued. In Thompson v. Sanford, supra, we recognized that the municipal tort-immunity statute works in such a way that it makes city governments bear some responsibility for their negligence, by allowing recovery to the extent of insurance coverage, but prevents the cities from being exposed to high judgments that would destroy them. We find the legislature’s enactment of the municipal tort-immunity statute to be a reasonable means of achieving a permissible public-policy objective. Therefore, we hold that the statute does not violate Article 2, § 13, or Article 5, § 32, of the Arkansas Constitution.

Affirmed.


source: Caselaw Access Project

author: DAVID Newbern, Justice.

license: Public Domain

text:
    CITY OF RUSSELLVILLE v. BANNER REAL ESTATE
    96-142
    933 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      Donald Bourne and Dunham & Ramey, PA., by: James Dunham, for appellant.

      John Harris, for appellee.
   DAVID Newbern, Justice.

This is a zoning case. The issue is whether a city council may, upon oral motion, adopt a rezoning ordinance which differs from one proposed by the city’s planning commission. We reverse the Chancellor’s decision awarding a partial summary judgment, the effect of which was to preclude the city council from doing so.

The City of Russellville petitioned the Russellville Planning Commission to rezone certain property facing Twelfth Street in Russellville from category C-4, quiet commercial, to category R-l, single-family dwellings. The tract under consideration included property owned by the appellee, Banner Real Estate, a partnership. The petition proceeded before the Russellville Planning Commission where public hearings were held. The Commission’s recommendation was that the tract be rezoned, with portions of it to become R-l and other portions R-2. The R-2 category permits construction of apartments. The Banner property is located in the part of the tract recommended by the Commission for R-2 rezoning.

The resulting Ordinance 1474, as adopted by the Council, differs from the Commission proposal. While the Council did as the Commission had recommended by rezoning the land which had previously been zoned C-4 to R-l and R-2, the line between the two resulting R-category portions of the property was drawn differently by the Council so as to make part of Banner’s property P.-2 and part of it R-l, rather than all of the Banner property being rezoned R-2 as recommended by the Commission. The change came about as the result of an oral motion by a councilman after the third reading of ordinance which, as proposed, accorded with the Commission’s recommendation.

Banner brought suit in Pope Chancery Court to have Ordinance 1474 declared void. It contended the Ordinance was invalid because the precise manner of drawing the R-l — R-2 line, as a result of the orally proposed modification, had not been shown on any map or in writing prior to its adoption. It was contended that Banner’s right to due process of law was violated as members of the public had not been allowed to address the ordinance as it appeared in the form ultimately adopted.

Banner moved for a partial summary judgment. The motion was granted. There apparently were other claims in this litigation which were not adjudicated. The Chancellor entered a proper order certifying the partial summary judgment for appeal in accordance with Ark. R. Civ. P. 54(b).

In Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), we held invalid an attempt by a city council to enact a rezoning ordinance. A city council had rezoned property without the request having been considered by the city’s planning commission. We noted that the state law would have permitted the city council to do as it did, but that, because there had been no compliance with the procedure specified by the city’s zoning ordinance requiring submission of the proposed rezoning to the planning commission, the ordinance was invalid. At the outset of our opinion, we pointed out that a city has no authority to legislate other than that granted by the state. It is thus clear that zoning authority must be exercised in accordance with both state and local law.

The state law in this instance is contained in Ark. Code Ann., Title 14, Chapter 56. The procedures for adopting a comprehensive zoning plan in a municipality are found in Ark. Code Ann. § 14-56-422 (1987). Changes to the plan may be made in accordance with Ark. Code Ann. § 14-56-423 (1987) which provides:

After adoption of plans, ordinances, and regulations and proper filing in the offices of city clerk and county recorder, no alteration, amendment, extension, abridgement, or discontinuance of the plans, ordinances, or regulations may be made except in conformance with the procedure prescribed in 14-56-422, or by a majority vote of the city council.

The Chancellor held that the procedure followed by the Council was illegal because § 14-56-422 was not followed. As we read the statutes, § 14-56-423 is controlling, and it permits a change in the zoning plan, or rezoning, by “majority vote of the city council” without following the procedure requiring further planning commission review as prescribed in § 14-56-422 and as found necessary by the Chancellor.

Ordinance 1459 of the City of Russellville provides the procedure to be followed when the City, as in this case, is the petitioner seeking rezoning of a citizen’s property. It requires the City to prepare a petition and a plat map “showing the location of the affected property.” It provides further for sending notice to the owner, posting a “rezoning sign, and holding public hearings before the Commission. Finally, it states in subsection 5, “After a public hearing is held, and the petition is reviewed by the Planning Commission, the Council may amend the zoning district boundary by passage of an ordinance by majority vote.”

While the ordinance thus requires a map “showing the location of the affected property,” there is no requirement that there be precise geographic zoning categories shown on the map. Although it is obvious that a petition must be submitted in writing, we see no requirement that the ultimate rezoning ordinance adopted by the Council be made available prior to its adoption so long as the property in question and the proposed rezoning have been the subjects of notice to the property owners and the required public hearings.

Summary judgment may be granted when there are no remaining genuine issues of fact and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c). The Chancellor must have assumed there were no material facts at issue, and we have no quarrel with that assumption. Rather, we cannot say that Banner was entitled to judgment as a matter of law in view of our conclusion that the Chancellor misapplied § 14-56-422 rather than applying § 14-56-423 to the situation before him.

Finally, we note Banner’s general due-process-of-law argument, which formed a part of its pleading before the Chancellor but was not mentioned in the Chancellor’s ruling. While we may affirm on any proper legal basis, we are reluctant to consider doing so on the basis of the due process argument. Banner has given us only a quotation of general language that, “It is fundamental that a person cannot be deprived of life, liberty or property without due process of law,” citing the Fifth and Fourteenth Amendments and Ark. Const, art.2, § 21, along with Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980), and Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979). Neither of the cited cases is particularly relevant. Without something other than the general authority cited and without the issue having been made the subject of the hearing before the Chancellor and of a ruling by him, we choose not to conduct further research on the subject to see if we might affirm on the basis that Banner was denied due process of law. Our decision has only to do with the point more folly argued, and decided by the Chancellor, with respect to the City Council’s statutory authority.

Reversed and remanded.


author: David Newbern, Justice.

text:
    Charles DAVIS v. CHILD SUPPORT ENFORCEMENT UNIT
    95-641
    933 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      Wilson & Associates, by: E. Dion Wilson, for appellant.

      Charles E. Halbert, Jr., for appellee.
   David Newbern, Justice.

Jacqueline Sims, a Minnesota resident, executed a “Uniform Support Petition” there. She claimed that the appellant, Charles Davis, was the father of her child, Jeremy Arnett, and sought $250 per month in support payments and “reimbursement” in the amount of $3850. Mr. Davis resides in Helena. In accordance with Minnesota Uniform Reciprocal Enforcement of Support Act provisions, the petition was forwarded by a Minnesota district court to the appellee, Arkansas Child Support Enforcement Unit, which filed paternity and support claims, against Mr. Davis in the Phillips County Chancery Court.

Mr. Davis submitted to a blood (DNA) test in which the likelihood of his being the father of Jeremy Arnett was determined to be 99.86% when compared with “an untested, unrelated man of the North American Black population.” Pursuant to the Uniform Interstate Family Support Act (UIFSA), Ark. Code Ann. §§ 9-17-101 through 9-17-902 (Repl. 1993), a hearing was held on the petition. See § 9-17-401 (c) which gives an alleged support obligor the right to “notice and opportunity to be heard.”

Mr. Davis objected to the proceeding on the basis that the Court lacked jurisdiction, and he declined to present evidence. After the Court reached its decision finding Mr. Davis to be the father of the child and entering its order of support, Mr. Davis filed a motion challenging the constitutionality of the proceedings. The Court entered a further order overruling the motion and rejecting the constitutional arguments made by Mr. Davis. We affirm the decision.

i. Jurisdiction

Mr. Davis makes no argument which would seem to challenge the Chancellor’s jurisdiction of the subject matter, so we assume his argument is directed to jurisdiction of the person. He recites that Ms. Sims is not a resident of Phillips County and cites Dobson v. State, 69 Ark. 376, 63 S.W. 796 (1901). The Dobson case is completely inapposite, as the issue there was whether “the county judge in vacation, as distinguished from the county court,” had the right to hear and determine “bastardy cases.” The judgment against the putative father was affirmed, upholding statutory language allowing the judge to hear such cases “in vacation.” Mr. Davis does not contend that his residence is other than Phillips County, and we have no reason to suspect the Court lacked jurisdiction of him.

2. Right of confrontation

Mr. Davis points out that the evidence against him consisted of two affidavits, that of the expert who conducted the blood test and that of Ms. Sims. He contends he was denied his right, accorded by the Sixth Amendment to the Constitution of the United States, to confront the affiants. His argument is that the affidavits of those persons should not have been introduced into evidence and considered by the Court. He is aware that the Sixth Amendment is, by its language, limited to “criminal prosecutions,” but he argues that the proceeding against him is “quasi-criminal,” and he contends he is thus entitled to the same confrontation right as a criminal defendant.

The Dobson case is ancient and does not stand for the proposition for which it is cited, but it may display the manner in which Mr. Davis has been misled into this argument. In 1901 we used terminology like “complaint charging [a] ... person with being the father of a bastard child” and “conviction” of being the father of a “bastard child.” The terminology was suggestive of criminal prosecution. Mr. Davis supports his argument with references to Ark. Code Ann. §§ 9-10-110 and 9-17-316 (Repl. 1993), contending that, like a criminal, he faces incarceration if he disobeys the support order.

We find nothing in § 9-17-316 suggesting incarceration, but we do find it in § 9-10-110(b), which would allow the court to commit the “accused person to jail until the lying-in expenses are paid with all costs.” The predicate for such an action, however, according to § 9-10-110(a), is a judgment for lying-in costs “if required or claimed.” Here we have no evidence that there was any such claim or judgment, and there has been no attempt to hold that Mr. Davis has refhsed to pay any lying-in cost.

In Connecticut there were laws similar to § 9-10-110 and language in the paternity law such as that alluded to above from our Dobson decision making a paternity action seem like a criminal prosecution. The Supreme Court, in Little v. Streater, 452 U.S. 1 (1981), then referred to the Connecticut law as having “quasi-criminal” overtones, despite the State’s characterization of it as “civil.” The Supreme Court held that refusal of the State of Connecticut to pay the cost of blood-grouping tests sought by an indigent putative father denied his right to due process of law. The decision was a straightforward application of the Due Process Clause of the Fourteenth Amendment, applying the general criteria set out in Mathews v. Eldridge, 424 U.S. 319 (1976). It did not even suggest that the defendant was entitled to all or any of the procedural safeguards to which criminal defendants are especially entitled.

In Connecticut, the law was that a woman’s testimony that a man was the father of her child established a prima fade case, and in order to prevail, the putative father was required to produce evidence other than, or in addition to, his own testimony to the contrary. The Supreme Court based its decision upon the eviden-tiary hurdle faced by a Connecticut paternity defendant and the need of such a defendant to have access to evidence other than his own testimony to show the accusations were untrue. The Supreme Court limited its decision to the “specific circumstances” extant in Connecticut.

Mr. Davis’s argument ignores the statutory provision which would have entitled him to have present the expert who conducted the blood test upon filing of notice of such a request thirty days in advance of the trial. § 9-10-108(a)(3)(A). He states only that the statute would have required him to post a bond to pay the costs of the personal appearance of the expert. In the Court’s first order of judgment it is specifically recited that the bond requirement was struck by the Court and that only notice was required. Mr. Davis does not contest that statement, and there is no evidence that any such notice was given.

Also ignored is § 9-17-316(f) which provides:

In a proceeding under this chapter, a tribunal of this state may permit a party or witness residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. A tribunal of this state shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony.

Mr. Davis apparendy made no attempt to “confront” Ms. Sims by the method provided in the statute.

In these circumstances, where there has been (1) no attempt to utilize the provisions which were aimed by the drafters of the UIFSA at providing the best evidentiary safeguards permitted by the circumstances of interstate support litigation, (2) no attempt to defend due to a misguided conclusion concerning jurisdiction, and (3) no notice given to the Attorney General of the claimed unconstitutionality of the statute, see Ark. R. Civ. P. 24(c); Ark. Code Ann. § 16-111-106(b) (1987); Arkansas Dept. of Human Serv. v. Heath, 307 Ark. 147, 817 S.W.2d 885 (1991), we decline to give further consideration to the constitutional arguments made belatedly to the Chancellor and in this appeal.

Affirmed.

Dudley, Glaze, and Corbin, JJ., not participating.

Special Justices Claibourne W. Patty, Jr., LeRoy Autrey, and JAY Shell join in the opinion.


text:
    Demetrius Lamont JONES v. STATE of Arkansas
    96-765
    933 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      William R. Simpson, Jr., Public Defender, and Bret Qualls, Deputy Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Demetrius Jones appeals the order of the Pulaski County Circuit Court denying his motion to transfer charges against him to the Juvenile Division of the Chancery Court. Mr. Jones was charged with first-degree murder. The information alleged that, on September 17, 1994, Mr. Jones “unlawfully, feloni-ously, and with a purpose of causing the death of another person, did cause the death of Michael Bly, Jr.” Mr. Jones was sixteen years old at the time he allegedly committed the offense.

In his motion, Mr. Jones stated that he had no prior criminal convictions in Circuit Court. In its response, the State opposed the transfer on account of the serious and violent nature of the offense charged, the failed attempts at rehabilitating Mr. Jones, and Mr. Jones’s criminal history in the Juvenile Division.

At a hearing on the motion, Mr. Jones presented the testimony of his aunt, Ms. Lee Gertie Williams, who testified that Mr. Jones is a “good person” and “had good character and always did what I said.” Ms. Williams indicated that Mr. Jones had been placed in special education courses at Sylvan Hills High School. Mr. Jones also presented the testimony of Mr. Carvil Strong, who had counseled Mr. Jones during his stay at the Alexander Youth Service Center. Mr. Strong testified that Mr. Jones would have good prospects for rehabilitation if he were able to improve his educational skills. Ms. Mary Anthony, a case manager at Alexander Service Center, also testified on Mr. Jones’s behalf. She testified that she had performed an educational evaluation of Mr. Jones in November 1994 and that he tested on a second-grade level.

The State presented the testimony of Mr. Sean O’Nale, a deputy with the Pulaski County Sheriff’s Office. Deputy O’Nale testified that he investigated a homicide on September 17, 1994. The victim was discovered in a van with a fatal gunshot wound, and Mr. Jones was identified as the suspect and subsequently arrested. The Circuit Court heard an audio recording of the statement that Mr. Jones made following his arrest. In the statement, Mr. Jones revealed that he had pointed the gun at the van containing the victim and that the gun “went off.” The State’s other witness was Mr. David Adams, a sergeant with the Pulaski County Sheriff’s Office, who testified that Mr. Jones displayed limited reading and writing abilities.

As Mr. Jones was sixteen years old at the time he allegedly committed the offense, the Circuit Court and the Juvenile Court had concurrent jurisdiction, and the prosecutor was authorized to charge Mr. Jones in either court. Ark. Code Ann. § 9-27-318(b)(l) (Supp. 1995). In reaching its ruling, the Circuit Court was required by statute to consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e)(l)-(3) (Supp. 1995).

The Circuit Court’s decision to retain jurisdiction over a juvenile must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Supp. 1995). We will not reverse the Circuit Court’s order unless it is clearly erroneous. Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996).

The Circuit Court was not required to give equal weight to each of the three factors. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). The serious and violent nature of the offense is a sufficient basis on which the Circuit Court may deny the transfer motion and try the juvenile as an adult. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). The information alone is sufficient evidence of the serious and violent nature of the crime to support an order denying the motion to transfer. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).

The evidence presented showed that Mr. Jones was accused of committing first-degree murder, a violent and serious offense classified as a Class Y Felony, and that he allegedly used violence in the commission of that offense. The evidence also permitted the Circuit Court to conclude that Mr. Jones, considering his history in the juvenile system, lacked sufficient prospects for rehabilitation. Finally, in light of the fact that Mr. Jones is currently eighteen years old, it is not possible for him to be committed to a juvenile facility. Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Given these circumstances, the Circuit Court did not err in denying Mr. Jones’s motion to transfer.

Affirmed.

Roaf, J., concurs.


author: Tom Glaze, Justice.

text:
    Richard WEISS, Director of the Department of Finance and Administration v. CENTRAL FLYING SERVICE, INC.
    96-151
    934 S.W.2d 211
    Supreme Court of Arkansas
    Opinion delivered November 24, 1996

      Beth B. Carson, Revenue Legal Counsel, for appellant.

      Wright, Lindsey & Jennings, by: John R. Tisdale and Troy A. Price, for appellee.
   Tom Glaze, Justice.

Appellee Central Flying Service, Inc., is in the business of buying, selling, and leasing aircraft. Relevant to this case, Central purchased five airplanes which it held for resale. Under Ark. Code Ann. § 26-52-409 (Supp. 1995), Central was authorized to rent or lease these five airplanes for a period not to exceed one year from the date of purchase, and during that one-year period, it was exempt from paying a sales or use tax. None of the airplanes were resold until more than one year after their purchase. As a consequence, appellant Department of Finance and Administration assessed gross receipts tax on Central’s purchase of the aircraft and requested payment. Central responded that, while § 26-52-409 established Central’s liability for sales tax on the aircraft purchases at the end of the one-year period, the tax was not actually payable until each airplane was sold to another purchaser.

After disputing payment of the tax assessment, Central paid the assessment under protest and filed its complaint for refund in the Pulaski County Chancery Court, which held in Central’s favor. DF&A appeals the chancehor’s determination, and its sole argument for reversal asserts that § 26-52-409 provides that the gross receipts tax on the purchase of an airplane used for rental or charter service and held for more than one year without resale must be paid immediately after the lapse of one year from the date of purchase. We conclude DF&A’s argument is correct; therefore we reverse the chancellor.

DF&A’s and Central’s arguments center on their respective interpretation of § 26-52-409, but we first allude to other statutory gross-receipts tax provisions which are helpful to an understanding of the terms and provisions contained in § 26-52-409. Thus, we initially note that the sale of all tangible personal property is generally taxable unless an exemption applies. Ark. Code Ann. § 26-52-301 (Supp. 1995). With respect to a purchaser regularly engaged in the business of reselling items purchased, a sale for resale exemption is provided which relieves him of paying tax on such purchases. See Ark. Code Ann. § 26-52-401 (12)(A) (Supp. 1995). However, if that purchaser withdraws and uses an item from his inventory rather than resell it, such an event constitutes a withdrawal from stock and the purchaser is deemed the consumer. Georgia Pacific Corp. v. Lay, 242 Ark. 428, 413 S.W.2d 868 (1967). Items withdrawn from stock become subject to gross-receipts tax, usually based on the purchase price of the items used. Ark. Code Ann. § 26-52-103(a)(4) (Supp. 1995). Once an item is withdrawn from stock, the protection of the resale exemption is lost, and the tax is due on or before the 20th of the month following the month in which the items or goods were withdrawn. Ark. Code Ann. § 26-52-501 (Supp. 1995).

In 1975, the General Assembly enacted § 26-52-409 which was obviously intended to give aircraft dealers, such as Central, some tax relief. Before enactment of § 26-52-409, a dealer who purchased a plane exempt from tax as a sale for resale, but who withdrew it from inventory for use in his business would have been required to pay the tax based on the purchase price of the plane, and the tax was due in the month following the plane’s withdrawal from inventory. After § 26-52-409 was enacted, an aircraft dealer who purchases a plane for resale can now use it for rental or charter service without payment of sales or use tax for a period not to exceed one year from its purchase date. See § 26-52-409(a)(l). The full relevant text of § 26-52-409 reads as follows:

(a)(1) Any person . . . engaged in the business of selling aircraft in this state . . . may purchase aircraft exempt for resale and use the aircraft for rental or charter service without payment of sales or use tax for a period of not to exceed one (1) year from the date of purchase of the aircraft.
* * *
(b) The use of the aircraft for rental or charter during the applicable one-year . . . holding period . . . shall not constitute a withdrawal from stock, and the purchaser shall not be required to pay the sales tax on the purchase price of the aircraft held in stock and used for such purposes.
(c) The aircraft purchaser shall collect and remit gross receipts and short-term rental tax on the rentals and shall subsequently collect and remit the gross receipts tax on the aircraft at the time of subsequent sale in the manner required by law.
(d) If the purchaser fails to sell the aircraft during the applicable holding period, the purchaser shall be liable for sales or use tax on his purchase price of the aircraft.

Provision (b) above provides that an aircraft dealer’s renting or chartering a plane during the prescribed one-year holding period does not constitute a withdrawal from stock, and he is not required to pay the sales tax on the plane’s purchase price. However, under (d) above, if the dealer-purchaser fails to sell the aircraft during the one-year holding period, he shall be liable for the tax based upon the price he paid for the aircraft. Central argues that, under provision (d), it becomes liable for the sales tax based upon its purchase price of the aircraft, but it disagrees that it must remit payment immediately after its liability accrues. Instead, Central argues provision (c)’s language suggests such taxes must be collected and remitted at the time of the subsequent sale. Central further submits that, since the airplanes at issue were not sold during the assessment period in this case, the chancellor correcdy held DF&A prematurely imposed and collected tax from Central. Central contends its interpretation of § 26-52-409 is supported by DF&A’s own regulation, Gross Receipts Tax Regulation 14(F), which reads as follows:

F. AIRCRAFT RENTAL

1. Any person engaged in the business of selling aircraft in Arkansas who holds aircraft for resale in stock, may rent or use the aircraft in a charter service operated by that person for a period of one year from the date of purchase of the aircraft without remitting the tax on the aircraft so used. When the aircraft is eventually sold, however, the tax must be remitted at the time of sale. If the aircraft is sold within the one year period, the tax shall be computed on the actual sale price of such aircraft or the price paid for the aircraft by the seller, whichever is greater. If a year passes and the rented or chartered aircraft has not been sold, then the tax must be remitted by the person engaged in the business of selling aircraft in Arkansas on his purchase price.

In sum, Central claims that the only mention in § 26-52-409 as to when its tax liability must be paid is in provision (c) where it refers to “the time of subsequent sale.” It also refers to GR14(F) language which provides, “When the aircraft is eventually sold, however, the tax must be remitted at the time of sale.” Thus, Central argues DF&A must await Central’s sale of these planes before collecting the taxes that have accrued on them.

Central’s argument tends to ignore that the exemption specifically awarded under § 26-52-409 is not to exceed one year from the date Central purchased the five airplanes in issue. That exemption is specifically provided in § 26-52-409(a)(l) and for that one-year period, Central’s rental and lease of those aircraft did not constitute a withdrawal from stock, and therefore it was not required to pay the sales tax on the purchase price of the aircraft. Inferentially, that exemption ends and the airplanes are considered a withdrawal from stock when they have not been resold after the prescribed one year. Accordingly, the general gross-receipts tax provision, § 26-52-501, then becomes applicable, making Central’s tax due on or before the 20th of the month following the end of the one-year period. This interpretation of § 26-52-409 is consistent with DF&A’s GR 14(F)(1). The regulation first notes that a person, holding an aircraft for resale, may rent or use it for one year from the date of purchase without remitting the sales tax and then provides, if a year passes and the rented or chartered aircraft has not been sold, then the tax must be remitted.

Finally, we should point out that Central’s reading of § 26-52-409 tends to blur the statute’s plain language. For example, Central argues the provision (c) language, “the aircraft purchaser shall collect and remit the gross-receipts tax on the aircraft at the time of subsequent sale,” applies to the sales of aircraft made both during and after the one-year holding period. Again, we must disagree. First, if we accepted Central’s interpretation, Central could avoid payment of any sales tax it owed on its five planes simply by not reselling them. Obviously, the General Assembly never intended such a consequence, and this court is duty bound to reject any interpretation of a statute that results in absurdity or injustice, leads to contradiction, or defeats the plain purpose of the law. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). Central tries to explain that its interpretation of § 26-52-409 would not necessarily allow Central to avoid its liability for accrued sales taxes by not reselling the planes it purchased, and does so by suggesting Central would be the consumer and required to remit the tax payment within a reasonable time after the one-year holding period. Of course, no such language suggesting this procedure can be found either in § 26-52-409 or CR14(F)(1), and we are obliged to give a statute effect just as it reads, if no ambiguity exists. See Pledger v. Ethyl Corp., 299 Ark. 100, 771 S.W.2d 24 (1989).

We conclude that the reasonable construction of the “at time of subsequent sale” language in provision (c), relied on by Central, is that it refers only to those aircraft sold “during the one-year holding period.” In other words, when a sale occurs during the one-year period, the purchaser must then remit payment. Otherwise, after the one-year period ends, the taxpayer must remit payment on or before the 20th day of the following month.

For the foregoing reasons, we reverse.

       Short-term rental taxes were also assessed on Central’s rental of the aircraft, but these taxes are not at issue in this appeal.


author: Donald L. Corbin, Justice. ROBERT H. Dudley, Justice.

text:
    Steven A. BROWN v. Leonard S. FINNEY Jr.
    95-1329
    932 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      Blair & Stroud, by: H. David Blair and Robert D. Stroud, for appellant.

      Walmsley Law Firm, by: Tim Weaver, for appellee.
   Donald L. Corbin, Justice.

Appellant Steven A. Brown appeals the judgment of the Sharp County Circuit Court granting summary judgment to Appellee Leonard S. Finney Jr. on Appellant’s complaint that Appellee was negligent in his operation of a vehicle that resulted in an accident and caused injuries to Appellant. The trial court granted summary judgment on the basis that Appellant’s exclusive remedy was through a workers’ compensation claim against his employer pursuant to Ark. Code Ann. § 11-9-105 (Repl. 1996). As this appeal involves statutory interpretation, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(17). Appellant’s sole point on appeal is that the trial court erred in granting summary judgment because section 11-9-105 does not provide the exclusive remedy of a worker injured by the active negligence of a non-supervisory coemployee.

According to the information contained in the abstract, Appellant and Appellee were part-time employees of ConAgra, working around ten hours per week catching chickens. Neither Appellant nor Appellee had any supervisory duties on the job. ConAgra provided its part-time employees with transportation in the company van to the work site, or farm, where the chickens were located. For some time before the accident, ConAgra had delegated to Appellee the job of driving the part-time employees to the work sites in the company van. The part-time employees were not actually required to ride in the company van, but they were certainly encouraged to do so by their supervisors. According to Tim Hicks, the ConAgra supervisor of both Appellant and Appel-lee, the employees normally parked their vehicles at a location in Cave City, Arkansas, and then rode to the work site together in the company van, normally driven by Appellee. In fact, Tim Hicks stated that other than the night of the accident, he was aware of only one other time when any of the employees drove their personal vehicles to a work site.

On August 18, 1993, Appellee picked up the company van at ConAgra in Batesville, Arkansas, as was his normal procedure, and drove to Cave City, Arkansas, to pick up the employees. For reasons unclear, two of the employees elected to drive their personal vehicles to the work site that night. Apart from Appellee, the driver of the van, and Appellant, there were four other young men riding in the van that night. The employees drove from Cave City to Dwight Smith’s farm and proceeded to catch chickens on that farm. When the job was finished at Smith’s farm, the employees left for the next work site. Along the way, an accident occurred when the company van, driven by Appellee, went off the roadway on Highway 58 and overturned. As a result of the crash, several of the young men in the van, including Appellant, were injured, some seriously. Through ConAgra’s investigation of the accident, there was some indication by the employees who were riding in the van, along with the two employees in their personal vehicles, that the van was travelling at a high rate of speed and that there may have been some racing going on between the vehicles.

As a result of the injuries he sustained in the accident, including a fractured hip, Appellant was awarded workers’ compensation indemnity benefits as well as medical benefits. Appellant brought this action against Appellee in circuit court pursuant to a tort claim that Appellee was negligent in his operation of the van on the night of the accident. Specifically, Appellant’s complaint alleged that Ap-pellee was operating the van at an extremely high rate of speed, and that when he tried to pass another vehicle, he lost control of the vehicle, which became airborne, crashed, and overturned. Appellee answered the complaint by denying all material allegations and asserting that the circuit court lacked jurisdiction to hear the claim, as section 11-9-105 provides an exclusive remedy for work-related injuries. The trial court agreed that Appellant’s exclusive remedy under the circumstances was through a workers’ compensation claim and granted Appellee’s motion for summary judgment. Appellant now appeals the order of summary judgment, asserting that the Workers’ Compensation Act does not prohibit an employee from maintaining an action in tort against a coemployee for injuries suffered as a result of the coemployee’s negligence. We affirm the judgment of the trial court.

Section ll-9-105(a) provides in part:

The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entided to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. [Emphasis added.]

As this court has previously observed, the reason for the exclusivity provision in that section mirrors the general purpose behind our Workers’ Compensation Act, which was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public with the concept of fault being virtually immaterial. See Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). With the passage of such statutes, employers gave up the common-law defenses of contributory negligence, fellow servant, and assumption of the risk and, likewise, employees gave up the chance of recovering unlimited damages in tort actions in return for certain recovery in all work-related cases. Id. In other words, the exclusive benefits provision of our workers’ compensation law favors both the employer and the employee, and thus we take a narrow view of any attempt to seek damages beyond that favored, exclusive remedy.

Appellant argues that this action is not within the exclusive confines of the Workers’ Compensation Act because he is not seeking a damage award from the employer, ConAgra; rather, he is seeking damages from a non-supervisory coemployee for negligence. Appellant asserts that a non-supervisory coemployee is a “third party” within the meaning of Ark. Code Ann. § 11-9-410 (Repl. 1996), and that he should not be prohibited from bringing suit in tort against such a coemployee. Section ll-9-410(a)(l)(A) provides:

The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action.

Appellant also distinguishes a non-supervisory coemployee from a fellow coemployee in an attempt to reconcile our prior case law with his theory for recovery. To that extent, Appellant relies heavily on our decision in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). King involved an action for the wrongful death of Dyer, who was struck and killed by a dump truck being driven by King, who was Dyer’s fellow employee. Dyer’s estate sued King as a third-party tortfeasor, alleging that King was negligent in his operation of the dump truck, and that his negligence caused the death of Dyer. There was testimony that Dyer was struck twice by the dump truck driven by King, and that after Dyer was hit the first time, the truck rocked as if Kang had applied the brakes, but then the truck continued to back and struck Dyer again, causing the fatal injuries. It was shown at trial that at the time of the accident, King had been backing up the dump truck to the Barber Green asphalt machine while the machine was off, and that it was understood by all the crew members that the dump trucks were not to be backed up to the asphalt machine while its motor was shut off. As to King’s argument that such an action in tort was prohibited by the Workers’ Compensation Act, this court held:

We are not impressed by the argument that the Workmen’s Compensation Act prevents an employee, or his personal representative, from maintaining an action for the negligence of a fellow employee. Our statute merely provides that the remedies under the act are exclusive of other remedies against the employer. Ark. Stats., § 81-1304. The making of a claim for compensation does not affect the right of the employee or his dependents to maintain an action against a third person. § 81-1340. Under a statute like ours a negligent coemployee is regarded as a third person.

Id. at 933, 319 S.W.2d at 218 (citations omitted).

Since that decision, we have examined negligent or injurious actions by fellow employees in the context of whether such employees were third parties not immune from suit based upon the duties they were performing or the roles they were undertaking at the time. In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), this court held that the president and owner of a family-owned corporation was not a coemployee, or a third party, for purposes of sustaining an action brought by an employee for negligence. The negligence alleged in that case was that the appellee-owner had failed to provide a safe place to work as required by state law. This court concluded that “[cjertainly the safety requirements under the labor laws should be enforced in this state and their violation should not go unpunished, but if [appellee-owner] was merely a third party fellow-employee, he had no duty to furnish a place for appellant to work — safe or otherwise.” Id. at 388, 438 S.W.2d at 319. The duty to provide a safe place to work is that of the employer and it cannot be delegated to an employee. Id; see also Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987). Neal established the precedent for our later holdings providing immunity to supervisory employees and coemployees who were engaged in the performance of the duties of the employer.

In Simmons First Nat’l Bank, 285 Ark. 275, 686 S.W.2d 415, this court held that since an employer is immune from a negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility. We afforded supervisory employees with the same cloak of immunity from suit enjoyed by employers because supervisory employees fulfill those duties that are exclusively the responsibility of the employer. Hence, our determination of immunity has been based upon the particular role undertaken by the employee at the time of the injury.

In Allen, 294 Ark. 1, 740 S.W.2d 137, this court concluded that supervisory as well as non-supervisory employees are immune from suit for negligence in failing to provide a safe place to work. This court reasoned that because the non-supervisory employee was a maintenance employee of the mill, whose duties included checking and repairing electrical equipment, he was immune from suit. We held that “[e]ven assuming that he was negligent in the maintenance of the bare wires that caused the death by electrocution of Allen, he is immune from suit because failing to repair or check for bare wires involves failure to provide a safe place to work.” Id. at 6, 740 S.W.2d at 140 (emphasis added).

In Barnes v. Wilkiewicz, 301 Ark. 175, 783 S.W.2d 36 (1990), we expanded the definition of the work place, determining that such a place was not static in the sense of being limited to the employer’s physical premises or actual place of business. In that case, Barnes brought suit for negligence against Wallace, his supervisor, for injuries sustained when they were working on a company truck which had stalled alongside the road. Barnes alleged that Wallace negligently parked his truck pardy in the roadway and that his negligence was a cause of Barnes’s injuries, which occurred when a motorist struck the parked vehicle, which in turn struck Barnes. This court held that the supervisor was immune from suit because Barnes’s claim amounted to one of failure to provide a safe work place. We determined that Barnes was injured during, and within, the course and scope of his employment; that the accident scene was the work place because their job required them to attend to the stalled company truck; and that Wallace was acting in his supervisory capacity at the time of the accident. Barnes cited our decision in King, 229 Ark. 929, 319 S.W.2d 214, in support of his contention that the duty Wallace owed to him was a personal duty of due care in the use of the public streets, unrelated to any duty between fellow employees. This court disagreed that King stood for such a proposition, holding that the decision merely recognized that an employee may be a “third party” under section 11-9-410 and that, as such, the Workers’ Compensation Act does not bar claims between coemployees.

Subsequent to our decision in Barnes, 301 Ark. 175, 783 S.W.2d 36, the court of appeals addressed the issue of injury to one employee by the act of a fellow employee occurring in a non-static work place. In Rea v. Fletcher, 39 Ark. App. 9, 832 S.W.2d 513 (1992), Rea filed a negligence suit against Fletcher, his fellow employee, alleging that Fletcher’s negligent operation of a vehicle in which Rea was riding caused injury to Rea’s spine. As in the present case, the parties’ employer provided transportation from a designated parking lot to the work site and back during lunch and after work. On the day of the accident, their supervisor told Fletcher to bring his truck to the work site for the purpose of transporting the employees back and forth for lunch, as both company trucks were unavailable. Fletcher agreed to use his truck to transport the employees. It was during the transport that Rea fell off the back of the truck. The trial court granted Fletcher’s motion for summary judgment on the basis that an employer is required to provide its employees with a safe place to work. Relying on our decision in Allen, 294 Ark. 1, 740 S.W.2d 137, the court of appeals affirmed, holding:

Even assuming appellee was somehow negligent in driving his vehicle, he is immune from suit because under the facts of this case providing transportation from the employer-designated parking area to the job site involves the duty to provide a safe place to work.

Rea, 39 Ark. App. at 13, 832 S.W.2d at 515.

The decision reached by the court of appeals in Rea, 39 Ark. App. 9, 832 S.W.2d 513, does not conflict with our holding in King, 229 Ark. 929, 319 S.W.2d 214, as the negligent coemployee in King was not in any way, shape, or form fulfilling the employer’s responsibility to provide a safe work place; rather, he was merely attempting to carry out his separate, individual duty as an employee to drive a dump truck used in asphalt operations. In that particular situation, King was not responsible for the safety of his coemployee, Dyer, and as such, under our workers’ compensation statutes, King was a third party. In Rea, as in this case, the coemployee was performing the employer’s duty to provide a safe work place for the employees.

We believe the conclusion reached by the court of appeals is sound and is dispositive of the issue at hand as the factual scenarios in both cases are very similar. As in the Rea case, Appellant and Appellee are fellow employees, neither having supervisory powers or duties over the other. ConAgra had elected to provide its part-time employees with transportation in a company van both to and from particular farm work sites, and in doing so had an obligation to provide safe transportation. Appellee had been assigned the task of driving the employees to the work sites by his supervisors, and he was in the process of transporting the employees between jobs when the accident occurred. It is solely the duty of the employer to provide its employees with a safe place to work, and such a duty cannot be delegated away to its employees, supervisory or otherwise. Furthermore, that duty extends to transportation of the employees between work sites. In transporting the employees, Ap-pellee was acting as an arm of the employer, fulfilling its duty to provide a safe work place, as the work place is not a static entity, especially when the job requires transporting workers from farm to farm.

We conclude that Appellee was performing the duties of his employer that night, and as such, he is also immune from suit in tort for the injuries sustained by Appellant. We note that while we have upheld the denial of immunity for employers who commit intentional or willful torts on employees, no such allegation is made here. See, e.g., Sontag v. Orbit Valve Co., Inc., 283 Ark. 191, 672 S.W.2d 50 (1984). Although, arguably, Appellee’s actions on the night in question may have been less than prudent, the facts as alleged in the complaint do not present a case of intentional, deliberate intent to injure, as Appellant alleges only that Appellee’s operation of the van was negligent. We thus affirm the judgment of the trial court.

Dudley, Glaze, and Roaf, JJ., dissent.

ROBERT H. Dudley, Justice.

In the summer of 1993, Leonard S. Finney, Jr., age twenty, and Steven Brown, age sixteen, were part-time employees of ConAgra. They caught chickens in chicken houses at various farms and loaded them into trucks. Neither had any supervisory authority whatsoever. Their supervisor, Tim Hicks, was the supervisor on the job at Dwight Smith’s chicken house near Sidney on the night of August 18, 1993. Finney and Brown, along with other co-employees, caught the chickens inside Smith’s chicken house and were instructed by Hicks to go to Cave City next and wait for a ConAgra van that would take them to Smithville where the chickens would be unloaded. Finney, Brown, and three other part-time employees got into another van owned by ConAgra. Finney started driving the van to Cave City. He drove exceedingly fast, perhaps ninety miles per hour, tried to pass a car going up a hill, hit a mailbox, lost control of the van, skidded across the highway, flew off the roadway, and landed in a ditch. Brown, among others, was seriously injured. Brown filed this tort suit against Finney, who responded that he was immune to suit by reason of the Workers’ Compensation Act. The trial court ruled that the Workers’ Compensation Act provided the exclusive remedy and granted summary judgment in defendant Finney’s favor. The majority opinion affirms.

The issue is whether the Workers’ Compensation Act gives immunity from suit to a nonsupervisory employee. Article 5, section 32, of the Arkansas Constitution, as amended by Amendment 26, in pertinent part, is as follows:

The General Assembly shall have power to enact laws prescribing the amount to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. . . . Provided, that otherwise no laws shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to person or property ....

Id. (emphasis added). The Initiated Measure that enacted the Workers’ Compensation Act provides that “the rights and remedies herein granted to an employee subject to the provisions of this act, on account of injury or death, shall be exclusive of all other rights and remedies of such employee to recover damages from such employer.” Initiated Act No. 4, § 4, Acts of 1949 (emphasis added). The employer’s immunity arising out of the Workers’ Compensation Act is expressed in Ark. Code Ann. § ll-9-105(a) (Repl. 1996), as follows:

The rights and remedies granted to an employee . . . shall be exclusive of all other rights and remedies of the employee ... to recover damage from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer ....

Id. (emphasis added). The clear language of the statute limits immunity to the “employer, or any principal, officer, director, stockholder or partner.” This language is given emphasis by Ark. Code Ann. § ll-9-410(a)(l)(A) (Repl. 1996), which provides in pertinent part: “The making of a claim for compensation against any employer shall not affect the right of the employee ...to make a claim or maintain an action in court against any third party.”

The question then becomes whether a co-employee with no supervisory authority whatsoever is an “employer” or a “third party.” We answered that question in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), as follows:

Our statute merely provides that the remedies under the act are exclusive of other remedies against the employer. Ark. Stats., § 81-1304 [now Ark. Code Ann. § 11-9-105, as amended by Act 796 of 1993]. The making of a claim for compensation does not affect the right of the employee or his dependents to maintain an action against a third person. § 81-1340. [now Ark. Code Ann. § 11-9-410, as amended by Act 796 of 1993]. Under a statute like ours a negligent coemployee is regarded as a third person. Botthof v. Fenske, 280 Ill. App. 362; Kimbro v. Holladay, La. App., 154 So. 369; Churchill v. Stephens, 91 N.J.L. 195, 102 Atl. 657.

Id. at 933, 319 S.W.2d at 218 (emphasis added).

Ten years after King v. Cardin we extended the employer’s immunity to the president and general manager of a closely held family corporation. In that case, Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), the plaintiff, who had collected workers’ compensation, sued the president and general manager of the closely held corporation for failing to provide a safe work place as required by state law. In our reasoning, we noted that an employer-employee relationship existed between the president and the employee.

In 1960, when we decided King v. Cardin, the statute that is now codified as Ark. Code Ann. § 11-9-105, provided: “The rights and remedies herein granted to an employee ... shall be exclusive of all other rights and remedies of such employee ... to recover damage from such employer ... .” Ark. Stat. Ann. § 81-1304 (Repl. 1960). This statute was amended by Act 253 of 1979 to incorporate our Neal v. Oliver holding as follows:

The rights and remedies herein granted to an employee ... shall be exclusive of all other rights and remedies of the employee ... to recover damage from such employer, or any principal, officer, director, stockholder, or partner ....

Ark. Stat. Ann. § 81-1304 (Repl. 1980) (emphasized language added by 1979 amendment). Thus, our cases and the statutes were in complete agreement.

In 1985, in Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), we extended the employer’s immunity to supervisory employees. In doing so, we wrote:

[S]ince an employer is immune under the statute from a negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility.

Id. at 278, 686 S.W.2d at 417.

The next year we followed our precedent, quoting Simmons First Nat’l Bank v. Thompson, and again held that the employer’s immunity extended to supervisory employees. Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986). The same rationale was applied in granting a writ of prohibition in Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987).

In Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), we extended the immunity provided by the Act even further. We held that a nonsupervisory co-employee who was responsible for a safe work place would be treated as an employer under the applicable statutes. We wrote: “[W]e conclude that supervisory as well as non-supervisory employees are immune from suit for negligence in failing to provide a safe work place.” Id. at 6, 740 S.W.2d at 140. Then, in Rea v. Fletcher, 39 Ark. App. 9, 832 S.W.2d 513 (1992), the court of appeals followed Allen v. Kizer and extended the definition of “safe work place” to vehicles driven by nonsupervisory co-employees.

In summary, we interpreted the two applicable statutes in King v. Cardin to mean that “a negligent co-employee is regarded as a third party” and therefore is subject to tort suit by a co-employee. Under that interpretation of the statutes the appellant in this case would be able to sue his co-employee for his negligence in driving the employer’s van exceedingly fast, perhaps ninety miles per hour, and attempting to pass while going up a hill. However, the majority opinion does not follow King v. Cardin, and it extends the exception created in Allen v. Kizer for a negligent co-employee when he or she has a duty to provide a safe work place. The result is that the exception is being allowed to consume the general rule, and that is wrong. The complaint in this case does not allege that the van supplied by the employer was defective in any way; there is nothing mentioned about a safe work place. Rather, the allegation is that Finney, the co-employee, negligently operated the van. Under the Workers’ Compensation Act the remedy given to the employee is exclusive against the employer, but it is not exclusive of remedies against co-employees. The immunity arising out of the Workers’ Compensation Act is the employer’s immunity, not the employee’s immunity. The workers’ compensation provision in the Arkansas Constitution provides that “otherwise no laws shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to person or property.” Ark. Const. art. 5, § 32 (as amended by Amendment 26).

The General Assembly has incorporated King v. Cardin and Neal v. Oliver into Ark. Code Ann. § 11-9-410 so that it now defines the word “employer” to include officers, directors, stockholders, partners, and prime contractors, but the General Assembly has never attempted to extend immunity to co-employees. The statute fists those who are immune, and it is a fundamental principle of statutory construction that the express designation of one thing may properly be construed to mean the exclusion of another. Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W.2d 233 (1993). Further, section 14 of Act 796 of 1993 still provides, in material part, “The making of a claim for compensation ... shall not affect the right of the employee ... to make a claim or maintain an action in court against any third party.” In addition, it is significant that the General Assembly added subparagraph (4) to section 14 of Act 796, which provides, “The purpose and intent of the reenactment of this statute is to annul any and all case law inconsistent herewith.” See notes to Ark. Code Ann. § 11-9-410 (Repl. 1996). In summary, Steven Brown was allegedly injured because Leonard Finney allegedly operated ConAgra’s van in a negligent manner. It is undisputed that Leonard Finney was a co-employee and had no supervisory authority whatsoever. Steven Brown has recovered pursuant to the Workers’ Compensation Act from ConAgra, but Ark. Code Ann. § 11-9-410 provides that “[t]he making of a claim for compensation against any employer ... shall not affect the right of the employee ... to make a claim or maintain an action in court against any third party.” Leonard Finney is a third party under our holding in King v. Cardin. He is not an employer and is not entitled to immunity as an employer. There is no allegation that the employer negligently furnished the van, or that the van was defective. The allegation is that the co-employee negligently operated the van. I would reverse the ruling of the circuit court and allow Brown to pursue an action against his co-employee, Finney.

Glaze and Roaf, JJ., join in this dissent.