text:
    OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA v. Jules VERVACK
    5-4593
    429 S. W. 2d 116
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Dobbs, Pryor & Shaver, for appellant.

      Warner, Warner, Rag on & Smith, for appellee.
   Conley Byrd, Justice.

Occidental Life Insurance Company of California appeals from a verdict upon its disability policy in favor of appellee Jules Vervack. The points relied upon for reversal are:

I. The plaintiff failed to establish total disability in that his doctor never said that he was totally disabled, only that he could not work full time, and the plaintiff simply concluded that he was unemployable on less than full time without supporting facts or basis of any kind.

II. Plaintiff elected to act contrary to doctor’s advice that he could return to work part time, could bowl, fish, hunt, and generally carry on usual activities, refraining from strenuous work or emotional upset, and was not necessarily confined within the meaning of the policy.

III. Instruction No. 6 told the jury that certain events would not prevent a recovery, and authorized the jury to find for plaintiff, without requiring the jury to find either total disability or confinement.

IY. The court erred in giving Instruction No. 5A.

The record shows that Occidental had issued to Yer-vack its disability policy containing both a TOTAL DISABILITY AND NON-CONFINEMENT clause and a TOTAL DISABILITY AND CONFINEMENT clause. The non-confinement clause, referred to as section A, provides:

“A. If such sickness shall wholly, necessarily and continuously disable and prevent the Insured from performing each and every duty pertaining to his occupation, the Company shall continue to pay the monthly sickness indemnity for a period, not exceeding twelve consecutive months, the Insured shall be so disabled and necessarily under the regular care and attendance of a legally qualified physician or surgeon other than himself. No indemnity shall be payable under this Part for the first seven days of any period of disability. ’ ’ The total disability and confinement clause, section B in the policy, provides:
“B. If such sickness shall continue beyond the period of twelve consecutive months specified in Section A of this Part and shall wholly, necessarily and continuously disable and prevent the Insured from performing each and every duty pertaining to his occupation, the Company shall continue to pay the monthly sickness indemnity for the period the Insured shall live and be so disabled and necessarily and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself.”

Yervack’s first heart attack occurred on April 23, 1965. Following this he operated his taxicab until a second heart attack on November 12, 1965. Occidental paid the benefits under the TOTAL DISABILITY AND NON-CONFINEMENT clause but refused to make payments on the TOTAL DISABILITY AND CONFINEMENT clause because it denied that Vervack was “so disabled and necessarily and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself. ’ ’

I and II

Dr. Robert J. Thompson testified that Mr. Vervack had arteriosclerotic heart disease, a hardening of the arteries with coronary insufficiency, which meant that his coronary arteries were incapable of carrying an adequate amount of blood to the heart muscle to allow him to do what would be considered normal physical activity. He stated that Vervack had a serious form of heart disease and it was necessary that he see a doctor once a month for the rest of his life. Vervack also, was going to the hospital every three weeks to have the clotting ability of his blood tested. When questioned about activities or exercises recommended, the doctor stated:

“A. Yes, we have recommended — this has to be more or less on a trial and error basis because there is no way of knowing from an original injury or heart attack how much exercise an individual will tolerate following a heart attack, so we have recommended that they take exercise or Mr. Vervack take exercise up to the point of tolerance, that is, to where he does not have pain. We feel that walks, up to the point of tolerance, are quite important as far as therapy for this type heart disease.”

After pointing out that the patient determines the tolerance, Dr. Thompson stated that he did not believe Mr. Vervack’s failure to work indicated any type of malingering. His reason was the precipitation of episodes of angina with such things as emotional upsets, taking a shower, etc.

Jules Vervack stated that he had attacks of angina if he stayed out of bed too long, that he could not stay up over three or four hours without chest pains, that if he walked too far he would develop angina pains and have to stop and rest, that he got short of breath quickly and that he could not work ten minutes without having to quit. He tested his exertion tolerance in his walks and in playing around the yard with the dogs, and found that he had to go sit down in ten or fifteen minutes. He had been driving his car for the last ten or twelve months to the doctor’s office, on his wife’s errands to the beauty shop and things of that nature, but when he went shopping with his wife he avoided any exertion such as pushing a loaded basket or reaching up and getting groceries off the shelf. He went to three high school football games in 1966 and two in 1967, and sometimes to the movies.

Mrs. Vervaek testified that her .husband’s angina attacks were very frequent, and that they were sometimes brought on by activities and other times occurred during his sleep. She stated that he sometimes got very weak in the shower and that they used a lawn chair in the shower so he could sit down and bathe.

We conclude that there was sufficient evidence to submit to the jury the question of Mr. Yervack’s total disability and confinement within the meaning of the policy.

Appellant argues that Yervack acted contrary to the doctor’s advice in failing to work, bowl, hunt or fish. However, as we understand the doctor’s testimony, the question relative to the patient’s tolerance was a fact issue.

Ill

Instruction No. 6 of which appellant complains reads as follows:

“Under the law, ‘continuously confined within the house ’ as contained in this policy does not mean literally that the plaintiff must remain continuously in his house in order to recover.
“You are instructed that if you find from a preponderance of the evidence and all of the instructions of the court that the plaintiff, Jules Vervack, was advised by a reputable physician or physicians, that it was to the best interest of his health, both mental and physical, and particularly to the best interest of the treatment of the diséase from which he suffered, that he take a reasonable amount of exercise, subject himself to fresh arr and sunshine, and engage in non-strenuous activities on a limited and reasonable basis, and you further find that he did take exercises and engage in activities in reliance on the advice of his physician or physicians, then the court tells you that even though he may have occasionally performed said events, these events would not prevent you from finding that the plaintiff was totally disabled, necessarily and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself, and your verdict may be for the plaintiff.” (Emphasis supplied.)

We do not agree with appellant that this instruction is inherently erroneous. The same, or a similar, instruction has been given and approved in Mutual Benefit Health & Accident Ass’n. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305 (1946), and Mutual Benefit Health & Accident Ass’n v. Rowell, 236 Ark. 771, 368 S. W. 2d 272 (1963). We are therefore unwilling to say that the trial court erred in giving this instruction under the issues of this case. Appellant’s argument that the instruction amounts to a comment on the evidence, while not persuasive enough to reverse our prior cases, leads us to suggest that in the future the italicized portion thereof be omitted.

When the instructions are read as a whole, we think the issues relative to total disability and confinement within the terms of the policy were adequately submitted to the jury.

IV

The Instruction No. 5A of which appellant complains reads:

“Under the law ‘regularly visited therein (within the House) and attended by a legally qualified physician or surgeon other than himself’ as contained in this policy does not mean literally that the doctor must visit or attend the plaintiff at his house, hut only that he he under regular treatment at whatever place the doctor directs.”

We find no error in this instruction. Appellant readily concedes that it was given and approved in Colorado Life Co. v. Steele, 101 F. 2d 448 (8th Cir. 1939). The text writers are in general agreement. See 15 Couch, Insurance, § 53:158 (2d ed. 1966).

This is a liberal interpretation of the house confinement clause in appellant’s policy, hut in this we are not alone. According to the annotation in 29 A. L. R. 2d 1408, the great majority of the courts follow the construction here given.

Affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Pete C. MERGENSCHROER et al v. Gerald ASHLEY
    5-4603
    429 S. W. 2d 120
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Jack Sims, for appellants.
    No Brief filed for appellee.
   Conley Byrd, Justice.

Appellants Pete C. Mergen-schroer et al appeal from a chancery decree refusing to enjoin appellee Gerald Ashley’s operation of Jo-Jo’s Bar-B-Que at 3401 Parker Street, North Little Rock, as a nuisance, and refusing to cause appellee to remove as an obstruction that portion of his barbecue pit that extended into the street right-of-way. For reversal appellant relies upon the following points:

I. The Chancellor erred in holding that the North Little Rock Board of Adjustment was empowered to allow and approve defendant’s building his structure into the public right-of-way.

II. The Chancellor erred in refusing or declining to order the defendant to remove that part of the structure known as Jo-Jo’s Bar-B-Q which extended into the street right-of-way.

We do not reach the alleged error of the trial court in holding that the North Little Rock Board of Adjustment was empowered to allow and approve appellee’s building of the encroachments on the street, because appellants have failed to show any special damages which would entitle them to enjoin the encroachments.

The record shows that the dedicated street right-of-way is 50 feet; that the paved or traveled portion of the road comprises some 25 or 30 feet; and that appellants readily recognize that they could not drive on the 8 or 9 feet of the dedicated right-of-way obstructed by the barbecue pit.

In Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S. W. 2d 35 (1956), we held that before one could abate an encroachment upon a public street he must show special damages not common to the public at large. Here the encroachment shown is not on any portion of the street which appellants propose to use and because of their failure to show any special damages from the encroachments not suffered by the public in general, we find their contentions to be without merit.

Affirmed.


author:
Wm. M. Moorhead, Special Justice.
      George Rose Smith, Justice, Carleton Harris, Chief Justice, John A. Fogleman, Justice,

text:
    Mrs. Dora Louise PARISH and Thomas L. Parish, ... her husband v. Ollie W. Pitts and the CITY OF LITTLE ROCK
    5-4134
    429 S. W. 2d 45
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Alonso D. Camp, for appellants.

      Joseph C. Kemp, City Attorney; John B. Plegge, Asst. City Attorney, for appellees.

      Warner, Warner, Ragon & Smith; Henry Woods and Dale Price; Terral, Rawlings, Matthews & Purtle; Spitzberg, Bonner, Mitchell & Hays; F. N. Burke Jr., Roscopf & Raff, David Solomon, John L. Anderson, Oscar Fendler, Rieves& Rieves; Frierson, Walker & Snell-

      grove; Glenn G. Zimmerman, William G. Fleming and W. H. Dillahunty, amici curiae.
   Wm. M. Moorhead, Special Justice.

TMs Court is again asked to overturn the rule of law granting to municipalities immunity from liability for damages negligently inflicted on others while acting in a governmental capacity.

Appellants sued the City of Little Rock and one of its employees for damages as compensation for painful and permanent bodily injuries allegedly suffered by Mrs. Parish when her car was negligently struck by the City’s garbage truck. The judgment of the lower court sustained the demurrer of the City and dismissed the complaint against it. Plaintiffs appealed.

The Court below followed the precedents of this Court which have established that a municipality when acting in its governmental capacity is not liable in damages for injuries inflicted on others by the negligent acts of its employees, servants and officers. If the activity causing the harm was “in the interest of the public generally”, it is classed “governmental” and no suit will lie against the municipality. Clearly the operation of a garbage truck is governmental by this test. Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257 (1957). Yet, in applying this rule the Court there voiced its criticism: “Considerations of fair play and justice suggest that those injured by the negligence of a municipality or its agents should be compensated on equal terms with those injured by individuals or private corporations.” The opinion further noted that many students of law have so recommended, that the Arkansas Legislature in 1947 had authorized municipalities to purchase liability insurance with a right of direct action against the insurer and expressed the hope that the Legislature might make .the purchase of such insurance by municipalities mandatory at some future time. However, the Court felt that even though it might agree that the present rule of municipal immunity from tort actions should be replaced with a stricter, more complete rule of responsibility, it was a matter of public policy and therefore, for consideration of the Legislature, not the Court. Kirksey v. City of Fort Smith, supra. The Legislature’s broad investigative powers to determine facts and its greater flexibility in dealing with complex problems indicate a preference for a solution by statutory action. Despite the Court’s invitation for legislative action ten years ago there has quite understandably been no comprehensive legislative consideration, or action on this troublesome question. It could not realistically be expected that a problem of judge-made or “lawyers’ law” could' or would be given the necessary time and attention by the Legislature. It operates basically in a sixty-day biennial session, necessarily crowded with more pressing and immediate problems of economics, taxation, the allocation of the proceeds thereof, and the myriad other interests affecting the general welfare of the people of the State. It should also be realized that most citizens, and more particularly legislators, will normally think of themselves as being on the side of government rather than opposed to it. They are thus more likely to cling to the “pleasant and appealing advantage” of immunity from liability for injury suffered at the hands of their public servants and employees. Leflar and Kantrowitz, “Tort Liability of the States”, 29 N.Y.U.L. Rev. 1363 (1954). Although the field of the common law is not primarily the Legislature’s problem, it is the primary concern of this Court. Accordingly, the Court, not the Legislature, should extirpate those rules of decision which are admittedly unjust, for it is to the judiciary that the power of government is given to provide protection against individual hurt. Green, Freedom of Litigation, 38 Ill. L. Rev. 355, 382 (1944).

Considerations of public poliey are not and never have been for determination by the Legislature alone. Holmes, The Common Law, 35 (1881). Especially is this so when the individual’s rights are put in question by governmental activity as here. We are now of the opinion that re-examination of the principle of governmental immunity from tort action is the duty of this Court and should he undertaken at this time.

The origin of the concept of governmental immunity to suit and how it came to relieve the municipal corporation in the United States of liability for its tortious conduct, is quite involved and the subject of conflicting accounts. Nevertheless, it is generally agreed that its application to a local unit of government is first recorded in Russel v. Men of Devon, 2 T. R. 667, 11 Eng. Rep. 359 (1788). An action for injuries caused by a defective bridge was brought against all the men of the County of Devon since they were required by statute to keep it in repair. Even the reasons given in the report for denial of the right to sue are subject to much dispute today. It was said a multiplicity of suits would be encouraged; that no such action had been authorized by statute; and that a judgment would work an injustice upon the changing population of an unincorporated county since those not residents when the tort occurred could be required to help satisfy it. In the concurring opinion is found what may well be the most fundamental reason for the concept:

“It is better that an individual should' sustain an injury than that the public should suffer an ineon-venience”.

The earliest Arkansas case enunciating the rule, Granger v. Pulaski County, 26 Ark. 37 (1870), cited the Massachusetts case of Mower v. The Inhabitants of Leicester, 9 Mass. 247, which in turn had cited the Russel case, supra. It is noteworthy that in applying this concept to a county the Arkansas court pointed out the distinctions between the unincorporated county and the incorporated municipality, indicating that liability might well attach to the latter. In City of Little Rock v. Willis, 27 Ark. 572 (1872), it was said that for the exercise of judgment and discretion by the municipality for the good of the whole, no action would lie for injuries resulting therefrom, hut that for the negligent performance or execution of the orders of such a public body, suit would lie. This reasoning was followed in Mayor of Helena et al v. Thompson, 29 Ark. 569 (1874), and liability was imposed upon the City for the negligent construction of an inadequate ditch and culvert which served to divert a flowing stream.

Yet, in Trammel v. Town of Russellville, 34 Ark. 105 (1897), without mentioning the Willis and Thompson cases, supra, this Court held that a municipality is liable in tort only if the activity engaged in was solely for financial gain or “proprietary” in nature, but if the activity causing the injury was in the interest of the public generally, it is “governmental” and the city is immune to suit and liability'. In 1931, in City of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383, the decisions in this field were reviewed, the oversight of the Willis and Thompson .cases, supra, in the Trammell decision, supra, was noted. Still the Court concluded that a municipality is not liable for its nonfeasance, nor for the negligence of its officers and agents in the performance of a governmental function. Thus by implication the earlier Arkansas cases imposing liability on municipalities for negligence in the performance of ministerial acts were overruled. This rule has been followed to the present with little discussion until the opinion given in Kirksey v. City of Fort Smith, supra. In applying the governmental-proprietary test, Arkansas has held that the maintenance of city streets, Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949 (1955); law enforcement activity, Franks v. Town of Holly Grove, 93 Ark. 250, 24 S. W. 514 (1910); the operation of municipal waterworks, Patterson v. City of Little Rook, 202 Ark. 189, 149 S. W. 2d 562 (1941); operation of an electrical distribution system, City of Little Rock v. Holland, supra; and the maintenance of a municipal swimming pool, Yoes v. City of Fort Smith, 207 Ark. 694, 182 S. W. 2d 683 (1944), are governmental functions. No case of liability for personal injury by a municipality is found in the Arkansas reports. In Arkansas, the immunity of the municipality in the tort field is, in practice, complete at present.

The only mitigation of the rule of governmental immunity in Arkansas has come in the past by legislative action. In 1940 this Court determined that a rural electrical cooperative should be immune from tort liability. Arkansas Valley Cooperative Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538 (1940). The reasons given were those applied to the governmental activities of a municipal corporation: the cooperative was not organized for profit, but only for the benefit of its members; it has no fund provided by statute out of which to pay judgments; rather, its funds were said to be held in trust, available only for its corporate purposes. Six years later the Legislature reversed that decision of the Court by providing that such organizations should be liable for torts resulting from the negligent acts of its agents, servants and employees. Act 362 of 1947; Ark. Stat. Ann. § 64-1525 (Eepl. 1966).

This same General Assembly, by Act 46 of 1947, authorized municipalities and other entities enjoying the rule of immunity to purchase liability insurance covering their tort damages. The sovereign State of Arkansas itself has submitted to a forum in which its tort liability is determined and compensation paid to the injured parties. See Ark. Stat. Ann. § 13-1401 ff. (Eepl. 1956), establishing and providing a mode of proceeding before the State Claims Commission. State employees have rights similar to those given private employees by the Workmen’s Compensation laws of this State. Ark. Stat. Ann. § 13-1407 ff. (Eepl. 1960). Thus we see that the basic injustice of the rule of tort immunity where it has come to the attention of the Legislature has met with dissatisfaction and been curtailed in part. This same “abhorrence of wrong suffered without a forum in which redress may be had”, is reflected in similar and more far-reaching legislation of other states and of the United States Government. See Leflar and Kantro-witz, Tort Liability of the States, 29 N.Y.U.L. Eev. 1363 (1954); Vermont Laws 1961, Public Act No. 265, Title 12, sec. 5601-02; Washington, Rev. Code, Ch. 4192; R.C.W. 4.92.090, added 1963 Ch. 159, sec. 2; Alask. Stats. Title 9, Ch. 65, sec. 09.65-070 added to a sec. 5.13 Ch. 101 S.L.A., 1962, and the Federal Tort Claims Act, 28 U.S.C.A., 2674 (1948). We do not construe such limited legislative action as has been taken in Arkansas to soften the impact of immunity on individual rights as an expression of legislative intent to retain the rule in all other areas. Only a comprehensive legislative study and enactment encompassing the entire field would warrant such an inference.

Legal scholars for the past forty years have criticized and condemned the concept of governmental immunity. An early and thorough-going examination of the doctrine was by Borchard, Government Liability in Tort (Pts. 1-3), 34 Yale L. J. 1, 129, 229 (1924-25); Government Liability in Tort (Pts. 4-6), 36 Yale L. J. 1, 757, 1039 (1926-1927); 28 Colo. L. Rev. 577, 734.

One of the more exhaustive examinations concludes that the failure to break fully with the immunity rule and “... to do what nearly everyone agrees ought to be done...” is found in three basic factors: First, the language of sovereignty found in the early cases; second, legislative and judicial inertia, thought to be the most potent single explanation of inaction; and finally, the fear that the financial burden of liability would result in inability to perform essential governmental services. Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363 (1954).

Tort law is intended to reconcile the policy of letting accidents lie where they fall, thereby giving reasonable freedom of action to others, and protection of the individual from injury which the defendant had a reasonable opportunity to avoid at the time. Holmes, The Common Law, 144 (1881). The “reasonable freedom of action” here in question is that of a municipality, furnishing essential and other services to the public. The rule of immunity frees these activities of the city from liability for damages inflicted upon the individual. It is the tort-victim who bears the entire, sometimes calamitous, burden resulting from these enterprises undertaken for the benefit of the entire community. The considered conclusion of the legal commentators has been that this burden should be treated as any other cost of administration of municipal activity and thereby be spread by taxes among the public receiving the benefits. Municipal irresponsibility and the sacrifice of individual rights to public convenience are not required to forestall disaster to the municipality.

They have pointed out that although municipalities are political subdivisions, created by the State and performing some governmental functions, they are not the State and do not partake of its sovereignty; they are corporate bodies, capable of much the same acts as private corporations; they have special and local interests and relations not identified with the State at large. They engage in fields of activity as a service to the citizenry never dreamed of in 1788, when this doctrine was first set forth in the report of the Men of Devon, supra, nor in 1870, when it was made a part of the law of Arkansas. The assumption of new and expansion of old services by the city for the benefit of the public has so augmented the incidence of this unjust precept on individual rights that it can no longer be retained except for the most compelling reasons. It has been noted that once the doctrine was imposed and followed by the courts stare decisis insulated the high court from the magnitude of the wrong being wrought by its application. Furthermore, the victims being individuals, made up at random from among the public generally, have, in the nature of things, no voice in the legislative halls. Thus neither the judicial nor the legislative processes have been brought to bear on the problem.

The supposed threat to the cities’ operations posed by financial responsibility for its torts has ever been a major factor, though not always expressly set forth, upholding the immunity rule. This fear is found in the report of the decision in Men of Devon, supra, wherein it was expressed as “inconvenience to the entire pop-ulus”, and in Arkansas Valley Cooperative Rural Electric Company, supra, holding later that all funds were subject to a trust for the benefit of the members and to divert them to the satisfaction of tort judgments would be a violation of that trust. However, it is the conclusion of those studies that the fear of curtailment of essential public services or the imposition of tremendous financial burdens on the public, is not founded on fact. In the private sector tort liability is a small item in the budget of any well run enterprise and should prove to be proportionately no greater for the municipality, since it will have available to it the same defenses and means of spreading the risk. 9 Law and Contemporary Problems (1942); Warp, Tort Liability Problems of Small Municipalities, 363; David, Public Tort Liability Administration; Basic Conflicts and Problems, 335; David, Tort Liability of Local Governments: Alternatives to Immunity Prom Liability, 6 U.O.L.A.L. Rev. 1 (1959); Green, Freedom of Litigation, 38 Ill. L. R. 355. At page 367 of this last work this judicial fear is contrasted with experience; in Wilcox v. Chicago, 107 Ill. 334, 340 (1833), it was said that to subject cities to liability for the operation of a fire department “. . . would most certainly subject property holders to as great, if not greater burdens than are suffered from the damages from fire.” Yet, the Illinois Legislature in 1931 imposed liability on the cities for injuries to person and' property caused by the negligence of the employees of the fire department. It was thirteen years before a case appeared in the Illinois Reports in which damages had been assessed against a city under this statute. Arkansas’s own limited experience with, the imposition of tort liability on cooperatives apparently has not resulted in a rash of eases nor oppressive financial burdens on that type of public corporation. The excellent amicus curiae brief filed herein by the Arkansas Municipal League quotes at length from reports over the last several years by the New York Legislature’s Joint Committee on Municipal Tort Liability. In 1929 the State of New York waived its immunity from tort liability by statute and in 1945 its courts construed this to be applicable to municipalities and counties. Yet those reports give no instance of curtailment or deprivation of essential municipal service. Quite expectedly this legislative committee is concerned with the extent of tort claims, the rising cost of liability insurance and in some instances difficulty in obtaining such insurance. New York’s experience with municipal tort responsibility would rather seem to indicate that the cities can continue to function while responding in tort to those injured by their activities. No one has ever suggested that it will not add to the financial problems of the municipalities. Anything short of financial disaster, however, is insufficient reason for exempting the cities from the rule of tort liability. In any case, the solution of the financial problem by taxation or otherwise rests with the legislative branches of government, not the judicial. If the rule of liability imposes on the taxpayer either a cur tailment of some municipal services or an increase in his taxes, still it will serve to assure him that the economic impact of any tortious injury he may suffer at the hands of a public employee would be shared with the other inhabitants of the city rather than, ‘ ‘... falling with awesome tragedy” upon him alone. Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1, 25 (1961). Admittedly, this court, because of the limitations on the judicial function, is not able to conduct the careful survey, preparation and. study required for an ideal solution to the problem of municipal irresponsibility, nor can it limit and moderate the imposition of liability as could the legislature. Yet, if it is not conclusively shown that the cities can bear the financial burden of their own torts, neither is it demonstrated that they are unable to do so. An exemption of this magnitude to the usual rule of law leading to a just result in tort can no longer be continued because of speculative fears by the Court of financial disaster to cities. The injustice wrought by the immunity rule on the individual’s rights is clear and certain; its justification must be no less so.

Beginning with Florida in the year 1957, ten American jurisdictions have reviewed and rejected the doctrine of governmental immunity for political subdivisions and entities, Hargrove v. Town of Cocoa Beach, Fla., 96 So. 2d 130 (1957); Molitof v. Kaneland Community Unit District, 18 Ill. 2d 11, 163 N. E. 2d 89 (1959); McAndrew v. Mularchuk, 33 N. J. 172, 162 Atl. 2d 820 (1960) (active wrong-doing only); Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 359 Pac. 2d 457 (1961); Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1 (1957); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N. W. 2d 618 (1962); Spanel v. Mounds View School District, 264 Minn. 279, 118 N. W. 2d 795 (1962); Fairbanks v. Schiable, Alaska, 375 Pac. 2d 201 (1962) (interpreting statute permitting suit against local government unit and refused to apply “proprietary-governmental” test); Rice v. Clark County, 79 Nev. 253, 382 Pac. 2d 605 (1963); Haney v. City of Lexington, Ky. 386 S. W. 2d 738 (1964).

Of sovereignty as a reason for holding political subdivisions immune to suit, it is generally agreed in those decisions that cities and other such entities are not the state, and it is only to the state that the high attribute of sovereign immunity should properly be attributed. Generally governmental immunity is traced to the medieval concept that “the king can do no wrong”, a notion which is entirely foreign to and at variance with the basic principles of government in America. Whether the rule of governmental immunity is traceable to the medieval concept that “the king can do no wrong” or to the Men of Devon case, supra, which does not mention today. Further, the reasons given in the Men of of kings to govern, political subdivisions are not in fact the sovereign state. The language of the early decisions concerning sovereignty has little hearing on the question today. Further, the reasons given in the Men of Devon case, supra, if valid when adopted, are no longer sufficient to justify the rule of immunity. Public convenience? does not outweigh the right to individual compensation for injuries suffered, and the political subdivisions are corporate entities financially capable of providing for the satisfaction of such judgments. Muskopf v. Corning Hospital District, supra. In Hargrove v. Town of Cocoa Beach, supra, it is said:

“The modern city is in substantial measure a large business institution. While it enjoys many of the basic powers of government, it nonetheless is an incorporated organization which exercises those powers primarily for the benefit of the people within the municipal limits who enjoy the services rendered pursuant to the powers. To continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth century upon an Eighteenth century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice.” In the Molitor opinion, supra, as in others above cited, it is noted that this doctrine of immunity was created by the courts, not the legislatures, and that the courts should correct their own errors, and so concluded that the rule was, “... unjust, unsupported by any valid reason, and has no rightful place in modern day society.”

Of the fear of bankrupting the political subdivision by imposing liability these several courts note the fact that no such actual case has been pointed out, Spanel v. Mounds View School District, supra; that public liability insurance was not in common use at the time the courts of this country adopted the doctrine of governmental immunity, -while today it “... serves private citizens and private corporations as a means of prepaying and sharing this sort of unexpected burden with which we deal in this ease”. Williams v. City of Detriot, supra. All give weight to the growth of municipal activity.

Municipalities are not the State of Arkansas and do not partake of its constitutionally granted immunity. It does not clearly appear to us that in this day and time the municipality and those presumably benefiting from its services are unable to bear the full cost of these activities. The immunity rule imposing the entire burden of municipal torts on the individual victims is patently unjust and can no longer be retained without an equally clear showing of an even greater harm to the public.

Other courts during the past ten years have, like Arkansas in Kirlcsey, supra, refused to overturn the rule of governmental immunity, though many have criticized it. Their principal reason for continuing to adhere to an admittedly unjust rule is the doctrine of stare decisis. This policy of ádhering to precedent to give predictability to the law, and to avoid unsettling things, is fundamental to the common law. So too is the power to overrule a line of decisions, even those under which property rights were acquired. Carter Oil Co. v. Weil, 209 Ark. 853, 192 S. W. 2d 215 (1946). Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Any rule of law not leading to the right result calls for rethinking and perhaps redoing. Llewellyn, Jurisprudence, 217 (1962). The proper limitations on the doctrine of stare decisis have ever been recognized by this Court. “Precedent, it is said, should not implicitly govern, but discretely guide . . .”, Roane v. Hinton, 6 Ark. 525, 527 (1846). Having determined as we have here that a rule established by precedent no longer gives a just result it must then be determined whether the rights of those who have justifiably relied upon the established precedents are of greater weight in this case than that the rule be corrected. The test is whether it is more important that the matter remain settled than that it be settled correctly. Brickhouse v. Hill, 167 Ark. 513, 522, 268 S. W. 865 (1925). We are not here faced with a rule of property, for the law of torts does not affect ownership or devolution of title. Contracts and wills are not drawn in reliance upon it. Ordinarily then the doctrine of stare decisis is of no great weight in the field of tort law. Here, however, a numerous class, the municipalities, relying on the past decisions of this Court granting them immunity, may well have neglected to investigate accidents or to insure against liability as they are permitted by statute to do. Hence, because of this Court’s prior rulings, many would he unprepared to present defenses otherwise available to them, and in event of the imposition of liability, a small municipality might find itself financially unable to meet it without the possibility of disrupting its services to the public.

That possible hardship on those who have justifiably relied upon the law as announced by the Court in the past stems from the retroactive effect normally given a court decision. Legislative acts which normally operate only in the future avoid this effect. It is for this reason that many of the courts have left such problems for legislative solution. Whittington v. Flint, 43 Ark. 504 (1884). In the past we have met the problem by making our decisions operative only in the future. Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973 (1952). Other courts faced with this problem arising from elimination of past error have solved it in all three ways open to us: California in the Muskopf ease applied the decision in the normal manner; making it retroactive as to the present ease and all other actions arising within the statute of limitations. The Legislature fixed a period during which the new rule would be held in abeyance. Cal. Stat. ch. 1404. In Williams v. City of Detroit, supra, the Michigan court held that governmental immunity no longer would be recognized from the date that decision, while in Holytz v. City of Milwaukee, supra, Wisconsin allowed suit by the plaintiff before it, but made the new rule applicable to others only in the future. This last mode of procedure seems to us to best meet the several inevitable problems created by a change in a line of precedents. We declare the rule of liability to be applicable to this case and all other causes of action arising after this decision becomes final. This serves, in keeping with our system of the private enforcement of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given to this Court the opportunity to rid the body of our law of this unjust rule. The impact of retroactive application. on the present defendant is not likely to create any major crisis. Being prospective as to all other causes of action the municipalities are given time in which to procure insurance and take measures to protect themselves in suits thereafter arising. Any one of the three means of application of the law here is necessarily going to deny the benefit of this decision to some injured persons. This is always true when there is any change, judicial or legislative, in the law.

We would make plain that this decision imposes liability on municipalities only for the imperfect, negligent, unskillful execution of a thing ordained to be done. No tort action will lie against them for those acts involving judgment and discretion; which are judicial and legislative or quasi-judicial and quasi-legislative in nature. The exercise of discretion necessarily carries with it the right to be wrong. It is only for ordinary torts committed in the execution of the activities decided upon that a tort action will lie; not for the decision itself.

Nor have we at this time considered the liability of any other governmental unit or political subdivision.

Judgment reversed.

JoNEs, J., disqualified.

George Bose Smith, J., concurs.

Harris 0. J., and Fogleman, dissent.

George Rose Smith, Justice,

concurring. I join in Special Justice Moorhead’s opinion, but I should like to add a word in reply to the dissentient suggestion that our statute adopting the common law of England exempted that body of rules from judicial modification, leaving the power of repeal in the legislature alone. If that were true we would be absolutely bound to follow an English precedent announced 300 years ago, no matter how wrong we thought it to be, if no later case on the point could be found. The practical point of view, and I think the right one, is that when we adopted the English common law there was included in that heritage the fundamental common law rule that a court can and should overrule an erroneous judicial decision when it can be done without injustice to past or future litigants. That is all the court is doing today.

Carleton Harris, Chief Justice,

dissenting. I have no quarrel with the basic premise set out in the majority opinion, i. e., that from the standpoint of right and wrong, it is just as right for a person who is hurt by the negligence of a city and its employees to obtain damages for the injury, as it is for those persons who are injured by the negligence of private individuals or corporations. But I think there are compelling reasons why the doctrine of governmental immunity should not be changed by this court.

Of course, this immunity was a part of the common law when this state was admitted to the Union. The very first section that appears in our Arkansas statutes (numbering 20 volumes), Ark. Stat. Ann. § 1-101 (Repl. 1956), provides that the common law of England, of a general nature, and not inconsistent with the constitution and laws of this nation, or this state, “shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state. [My emphasis.]” Actually, as is pointed out in Horsley v. Hilburn, 44 Ark. 458 (1884), while Arkansas was still a part of the Missouri Territory, this statute (in substance) was enacted (1816), and the opinion then recites :

“This statute remained to govern the subsequent formed territory of Arkansas, and was afterwards reenacted as a part of the laws of the State, with some change of phraseology and grammatical arrangements.”

Throughout all the sessions of the General Assembly subsequent to our admission as a state (1836), there apparently has been no attempt to enact legislation to change the long-standing doctrine of governmental immunity to suits in tort, and I can see no urgent reason for this established policy to be changed by judicial fiat. As pointed out in the majority opinion, the only modification of the rule came by virtue of legislative action in 1940, and the subject was also indirectly approached in 1947, when the Legislature authorized municipalities to purchase liability insurance covering tort damages. It is significant to me that the General Assembly has not made further exceptions to the general rule, and to me, it is somewhat persuasive that legislative intent has been expressed to retain the rule.

There are many facets connected with a change of the rule that are unanswered. For instance, the immunity is not being done away with in personal injury cases alone, but this step also relates to acts committed that damage property, or conversely, the failure to perform acts that might have prevented damage to property (or person). The failure of building inspectors to discover and eliminate certain hazardous conditions, or perhaps the failure of the city to install a traffic light at some location, which a jury might find to have been hazardous, are examples of possible liability. Actually, there are literally dozens of situations that could arise.

It is pointed out by the majority that cities and towns can obtain liability insurance — but I am not convinced that this is true in every instance. Not only that, but what would be the cost of such insurance? I cannot say — but I do know that the premiums for automobile coverage are constantly increasing; in fact, a recent increase on this type of coverage was granted which will Average 17% over the state. I have no doubt but that similar increases will be sought for public liability coverage. It may well be that many cities and towns will not be able to afford adequate coverage, and I know of no way for this deficiency to be corrected, except by additional taxation. Here again, it may well be necessary for the General Assembly to pass legislation affording proper authorization for the cities to act. But suppose the General Assembly does not act — where then, is the answer? The plight of the cities, though giving me concern, does not disturb me as much as the possible plight of small towns. The judgments awarded today by juries are far larger than those of past years, and, under some causes of action, the financial structure of a small town could be literally “wiped out” by one large judgment.

The needs of a city are many, and most police and fire departments are undermanned and underpaid; the demand for all types of services becomes greater each year, and I cannot bring myself to impose this additional burden.

I reiterate that this is a matter for the General Assembly. Perhaps, at the beginning, the court could have justifiably taken the step that is now being taken, but the fact that the rule of governmental immunity has been in effect in this state (and territory) for 150 years, strengthens my conviction that no change should be made, except through legislative action.

I respectfully dissent.

John A. Fogleman, Justice,

dissenting. I subscribe to and join in the dissenting opinion of the Chief Justice. This court has on numerous occasions, some rather recently, said that the question presented here was one for consideration by the legislative branch of the government. I still feel that the court was right, and I cannot see that anything has changed except some of the personnel of this court. If the times and current circumstances call for a change in public policy in this field, it should be done by the General Assembly which is properly a policy-making branch of government.

In Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257, this court, in addition to the quotation in the majority opinion, said:

“If we were privileged to set the state’s public policy on this issue we might readily agree that the present pattern of partial tort liability of municipalities should be replaced with a stricter or more complete rule of responsibility. * * * Able law writers have so recommended, but through legislative and not judicial action. See the splendid article on ‘Municipal Tort Liability in Operation,’ 54 Harvard Law Review 437. A step in this direction was taken by the Arkansas Legislature in 1947 by the enactment of Ark. Stats., § 66-517 et seq., which authorizes municipalities and other agencies immune from tort action to purchase liability insurance with the right of direct action by the injured plaintiff against the insurer. Perhaps the Legislature will make the purchase of such insurance mandatory at some future time. This decision rests with the people acting directly or through their legislature, and' not with the courts.”

While the doctrine of municipal tort immunity may not have been based upon the constitutional immunity of the state from suit, a city is nevertheless an agency of the state for the performance of specified essential governmental functions in a limited area. The fact that a city can be sued at all has never seemed to me compatible with the holding that agencies of state government, such as the Arkansas Highway Department, cannot be sued. Cities do exercise some of the sovereignty of the state. If they do not, how can some of their powers, such as prosecutions for violations of ordinances, be constitutionally justified?

If the problem is approached from the point of view that our cities have become business institutions in many respects, a workable solution could be found in the liability of cities when acting in a proprietary, rather than a governmental, capacity without opening the door to a floodgate of unanswered questions for these agencies of state government which have become so important in our scheme of things that in recent years an executive department of our federal government has been created to deal with their problems at that level.

We should not assume that the General Assembly has been unaware of our decisions or the expressions in our opinions that this court thought some legislative action was appropriate. That branch of our government is usually alert in giving attention to matters when changes in our basic law is needed. No better examples can be found than in the actions eliminating tort immunity of electric cooperatives, authorizing the purchase of liability insurance by agencies to which tort immunity has been extended, and creating the State Claims Commission.

Had a study in depth of this problem by the legislative branch been felt appropriate by the General Assembly, there can be no doubt that it would have been undertaken either through the Legislative Council or by other means. The creation of the Arkansas Constitutional Revision Study Commission, the Arkansas Economic Expansion Study Commission, and the Arkansas Judiciary Commission are evidences of their alertness.

This -action, eannot be properly justified by any allegations of affluence on the part of municipalities. While revenues are greatly increased over those of 1870, the number and extent of the services demanded of them have multiplied at a much more rapid pace than have the revenues and sources thereof. Evidence should not be required for us to know that cities in Arkansas bring ever increasing financial problems to the General Assembly biennially and that cities all over the nation are calling upon the National Congress for aid. Strict limitations on the taxing power of municipalities, whether wise or unwise, make this new liability a greater problem than should be imposed without some compensating means which can only be provided legislatively.

There is a delicate balance of powers in our three separate and independent branches of government. None of them should be more alert to preserve that balance and recognize the independence of each of the interrelated branches in its own field than the judicial department. I deplore the growing tendency on the part of courts to take actions which might well be construed to give the impression that the judiciary may, in pointing out what it deems to be matters requiring legislative attention, be saying: “If you don’t, we will.” The step being taken here is one of the few actions of this court that might be so construed. We should not impose a whole new batch of problems on the legislative branch by a judicial solution of a problem that we have repeatedly said belonged to it.

I am not entirely satisfied that insurance is actually available for the various liabilities that would be imposed upon cities by today’s decision or if now available, that it will continue to be. Even if it is, what are to be the limits of liability? Tort injuries to a whole family in an automobile in one of the smaller incorporated towns, such as Jerome, would justify as much money damage as they would in Little Rock. Many of these small incorporated towns will not have the reve-imes sufficient to pay liability insurance premiums after paying for the services required of them. None of our municipal corporations can afford to pay their employees adequate salaries, even without this additional burden.

I cannot help posing unanswered questions which make me steadfast in my opinion that the matter of change should have been left to the legislature rather than to this court.

Should there be limits of liability? If so, should they be the same for all municipalities or should they bear some relationship to population or assessed valuation?

Should the rule have been applied to all municipalities, or just to cities, not incorporated towns, or just to cities of the first class?

Should the liabilities and damages be determined in the courts just as is done in the case of a private corporation? Should a procedure similar to that under the Federal Tort Claims Act be provided? Should the jurisdiction and function of the State Claims Commission be expanded to these cases to insure uniformity of treatment? Should municipalities be given the power to establish such commissions? Or should there be regional commissions? Should a new commission similar to the Workmen’s Compensation Commission be given this jurisdiction?

Should a state fund be provided for payment of tort claims? If so, should it be financed by state appropriation or city contributions or by some new or additional tax? Or should each city have such a fund?

Should any and all tort damages in the ever expanding field be compensable by municipalities, or should there be a limitation to certain types or kinds of tort liability?

Out of which, funds are judgments against cities to be paid? Is damage by reason of injury resulting from automobile collision caused by negligence of the operator of a waterworks vehicle to be paid from waterworks revenues or funds earmarked for those purposes or is it compensable from city funds and revenues allocated for fire or police departments?

Should there be a time limitation upon notice of claims, so that proper municipal authorities are enabled to properly investigate incidents out of which the claims arise? Or shall they be called upon to defend a claim three years after an alleged occurrence that went unreported to proper city authorities?

What is the status of city employees in regard to claims for injuries? Will there be a common law liability to them? What application will such rules as the fellow servant doctrine and assumption of risk have?

Are acts of malfeasance, misfeasance and nonfea-sance all proper bases for recovery?

It is not necessary to speculate about possibilities with reference to liabilities that may be imposed upon our municipalities. A list of some liabilities that have been imposed in states where municipal tort immunity has been abolished follows:

(1) Failure to install a fire hydrant where others within a similar area were protected. Veach v. City of Phoenix, 427 P. 2d 335 (Ariz. 1967).
(2) Injuries to persons struck by suspected robber’s automobile during a high speed chase by city police. Evanoff v. City of St. Petersburg, 186 So. 2d 68 (Fla. 1966).
(3) Failure to maintain streets and highways in safe condition. Byne v. Americus, 6 Ga. App. 48, 64 S. E. 285 (1909); Jones v. Kane & Roach, Inc., 182 Misc. 37, 43 NYS 2d 140 (1943).
(4) Injury by a falling awning which extended over a sidewalk. McHarge v. Newcomer & Co., 117 Tenn. 595, 100 S. W. 700 (1906).
(5) Injury to persons on property adjacent to municipally owned ball park by a ball hit or thrown from the park. Robb v. Milwaukee, 241 Wis. 432, 6 N. W. 2d 222 (1942).
(6) Failure to maintain proper warning barriers for protection of persons using sidewalks and highways who unintentionally deviate therefrom. Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259 (1954); Gabbert v. Brownwood, 176 S. W. 2d 344 (Tex. Civ. App. 1943).
(7) Child killed by injury on city property under attractive nuisance doctrine. Peters v. Tampa, 115 Fla. 666, 155 So. 854 (1934).
(8) Failure to adequately maintain drains or sewers to prevent clogging. Tucson v. O’Reilly Motor Co., 64 Ariz. 240, 168 P. 2d 245; Lobster Pot of Lowell v. Lowell, 333 Mass. 31, 127 N. E. 2d 659 (1955).
(.9) Negligence in placing, failing to remove or permitting, with constructive notice, a rope or clothes line across a sidewalk. Albany v. Black, 214 Ala. 359, 108 So. 49 (1926); Shinnick v. Marshalltown, 137 Iowa 72, 114 N. W. 542 (1908).
(10) Drowning of a child under attractive nuisance, nuisance, or negligence theories. Peters v. Tampa, 115 Fla. 666, 155 So. 854 (1954); Doyle v. Chattanooga, 128 Tenn. 433, 161 S. W. 997 (1913); Cates v. Bloomington, 333 Ill. App. 189, 77 N. E. 2d 46 (1947).
(11) Explosion of butane gas stored in city’s streets' and alleys by a third party under a city permit. Splinter v. Nampa, 215 P. 2d 999 (Ida. 1950).
(12) Allowing fire in a city dump to spread to plaintiff’s property. Osborn v. Whittier, 103 Cal. App. 2d 609, 230 P. 2d 132 (1951).
(13) Injury to child by flare placed in street to warn of recent road work under attractive nuisance doctrine. Gilligan v. Butte, 118 Mont. 350, 166 P. 2d 797 (1946).
(14) Injury to child' in trying to light a warning lantern that had gone out. Collins v. Chicago, 321 Ill. App. 73, 52 N. E. 2d 473 (1943).
(15) Damage caused by operation of fire department vehicles. Miami v. McCorkle, 145 Fla. 109, 199 So. 575 (1940); Baltimore v. Fire Ins. Salvage Corp., 219 Md. 75, 148 A. 2d 444; Cavagnaro v. Napa, 86 Cal. App. 2d 517, 195 P. 2d 25 (1948); Peerless Laundry Services v. Los Angeles, 109 Cal. App. 2d 703, 241 P. 2d 269 (1952).
(16) Damages from temporary obstructions in streets. Crow v. San Antonio, 157 Tex. 250, 301 S. W. 2nd 628 (1957); Rueter v. Versailles, 213 F. 2d 233 (CA Ill. 1954); Denver v. Austria, 136 Colo. 454, 318 P. 2d 1101 (1957).
(17) Negligent operation of parks and equipment. Kingsport v. Lane, 35 Tenn. App. 183, 243 S. W. 2d 289 (1951).
(18) Injuries from acts in construction or repair of sewers or drains. Galluzzi v. Beverly, 309 Mass. 135, 34 N. E. 2d 492 (1941).
(19) Failure to erect traffic warnings against entering a street ^partially barred or obstructed by construction or improvement work. Austin v. Schmedes, 154 Tex. 416, 279 S. W. 2d 326 (1955).
(20) Injuries from falls on stairways. Knoxville v. Bailey, 222 F. 2d 520 (CA Tenn. 1955).
(21) Operation of street lighting facilities. Hooton v. Burley, 70 Ida. 369, 219 P. 2d 651 (1950).
(22) Injuries from overhanging tree limbs. Montgomery v. Quinn, 246 Ala. 154, 19 So. 2d 529 (1944); Tate v. Greenville, 228 S. C. 530, 91 S. E. 2d 161 (1956).
(23) Injuries because of an accumulation of water at a street intersection. Booth v. Dist. of Columbia, 100 App. D. C. 32, 241 F. 2d 437 (1956).
(24) Injuries to an unattended prisoner. Hargrove v. Cocoa Beach, 96 So. 2d 130 (Fla. 1957).
(25) Injuries due to defective condition of sidewalk. Winchester v. Finchum, 201 Tenn. 604, 301 S. W. 2d 341 (1957); Claessens v. Troy, 272 App. Div. 971, 71 NYS 2d 571 (1947).
(26) Injuries from fall in municipal parking lot. Rhodes v. Palo Alto, 100 Cal. App. 2d 336, 223 P. 2d 639 (1950).
(27) Injuries from fall by slipping on wet paint used to designate parking spaces on street. Austin v. Daniels, 160 Tex. 628, 335 S. W. 2d 753 (1960).

Is there to be liability for damages in Arkansas arising by reason of these and other things which come to mind:

Injury to an intoxicated prisoner who falls out of a hunk while unattended?

Injury to an unattended prisoner by another prisoner?

Injury to a person arrested by what a jury, after deliberation, may determine to have been an excessive use of force?

Injury from the falling of a defective bridge?

Injuries and property damage in riots a city fails to suppress?.

Damages from a nuisance created by failure to collect garbage promptly or properly?

Injuries or damages by reason of inability of city to perform a usual function because of a strike of 'city employees?

Injuries in and about municipal swimming pools, parks, playgrounds, golf courses and other recreational facilities ?

Injuries to which the malfunction of traffic lights was a contributing cause?

Injuries or damages by reason of failure of city authorities to condemn or demolish buildings of private owners in a dangerous condition?

Damages from slander by city officer or employee?

Damages for malicious prosecution upon acquittal of persons arrested or prosecuted by city officials? Or for false imprisonment?

Damages for malpractice in city hospitals?

What effect will this decision have on liability insurance rates of private citizens?

I feel that the court has not given due regard to Amendment No. 10 which had the very desirable purpose of requiring our cities and counties to operate on a cash basis. One judgment in one tort case could' exhaust all the revenues of many of our cities and towns so that all governmental functions would cease. This brings to mind another question. Would a tort judgment be paid from the revenues of the year in which the tort was committed or that in which the judgment was rendered or that in which the judgment becomes final? It would seem logical that it be paid out of the revenues of the year in which the tort was committed, which would' likely be exhausted before tbe damages could be, ascertained in many cases. This is another problem that might be solved by legislative action.

I also feel that the majority has not considered the fact that many required city services are activities that might well be called inherently dangerous. At least they involve a high degree of risk. The cities have no option about whether they will perform most of these services, as a private individual or corporation would. I submit that at least these activities should involve immunity. There is at least doubt whether the constitutional power •of granting immunity can be exercised by the General Assembly in view of today’s decision and Article 2, § 13, of our Constitution.

While the majority seek to limit the application of today’s decision to eases which do not involve judgment and discretion, I do not understand the limitation. Most of the acts of a municipal officer, servant or employee involve the exercise of some judgment or discretion.

I am also concerned about the effect of today’s decision upon counties, school districts, improvement districts, and other agencies performing governmental functions. I do not know whether we should consider them to be bound by this decision or not.

It gives me cause for concern that we nnhesitantly applied the doctrine of tort immunity in City of Fort Smith v. Anderson, 241 Ark. 824, 410 S. W. 2d 597, less than one month before the submission of this case, and now permit recovery of one whose alleged damage occurred two years and nine months prior to that a jury found to have been inflicted upon the plaintiffs in that case.

The difficulty of the majority in deciding just what claimants shall be beneficiaries of today’s decision emphasizes the fact that the court is acting legislatively. I do not agree that the solution is a proper one. I would prefei that we rule on the cases as they come here and without declaring whether rules are prospective or retroactive in operation.

I respectfully submit that the investigative powers of the General Assembly, not available to us, could have reached a sounder conclusion in this matter. Such an investigation would probably not have created more questions than it answered.

I fully agree with the remarks of the Chief Justice with reference to judicial change of the common law. I agree that courts have the power to overrule their own decisions, but not the common law adopted by this state. If Ark. Stat. Ann. § 1-101 (Repl. 1956) does not mean that this law can be altered or repealed by the General Assembly, only, then, I ask, what does it mean?

With all due respect for my brethren of the majority, whom I hold in the highest esteem, I cannot help but feel that this step is unwise, 'is in violation of the separation of powers prescribed by Article 4, § 2, of our Constitution and that it is being taken with only a superficial examination of the ultimate consequences. Legislative attention is more plainly indicated now than ever before.

       After this court had held that a rural electric cooperative should be immune from tort liability, \the General Assembly enacted legislation providing that these organizations were liable for torts resulting from the negligent acts of agents, servants and employees.


text:
    FORD MOTOR CO. et al v. Lanell G. TRITT, Adm’x
    5-4486
    430 S. W. 2d 778
    Opinion delivered September 3, 1968
    [Original opinion delivered May 13, 1968.]
    [Rehearing granted September 3, 1968]
   Conley Byrd, Justice.

In our original consideration of this ease, Ford Motor Co. v. Tritt, Admx., 244 Ark. 883, 430 S. W. 2d 778 (1968), we reversed the judgment entered in favor of appellee because there was no evidence in the record to show that the defect in the rear axle of the pickup truck was the proximate cause of the collapse of the wheel attached to the huh thereof.

On rehearing appellee contends that this court should not reverse a casé because of the exclusion of admissible evidence that was excluded at the request of the party claiming that the record is insufficient for lack of such proof. For authority appellee cites White v. Moffett, 108 Ark. 490, 158 S. W. 505 (1913), and Western Union Telegraph Co. v. Hearn, 110 Ark. 176, 161 S. W. 1025 (1913).

In the Western Union case the telegraph company claimed that Mrs. Hearn’s cause of action should fail because she did not allege and prove that she gave notice to the company within sixty days of her intention to claim damages. This was required by the blank upon which the message was sent. After pointing out that Mrs. Hearn’s offer of proof to show compliance with the sixty-day stipulation had been excluded by Western Union’s objection, it was there held that a party can not on appeal take advantage of a defect in the proof that was brought about by a ruling of the court made at his own request.

To the same effect, see Zainudin v. Meizel, 259 P. 2d 460, (Cal. Ct. App. 1953); Pataray v. Lee Hing, 37 Hawaii 14 (1944); and Union Pacific Ry. Co. v. Harris, 63 Fed. 800 (8th Cir. 1894). The reasoning behind the rule is stated in the Union Pacific case as follows:

‘... The defendant will not be allowed to thus take advantage of his own wrong, or the errors of the court induced on his own motion, and then compel the plaintiff to suffer the consequences. Such a proceeding would be the merest trifling with the court. ... If the rule were otherwise it would encourage and reward unfounded and groundless objections to the plaintiff’s evidence ...”

The record here shows that Dr. Cushman, except for an objection by appellants sustained by the trial court, would have testified that the wobble caused by the defective axle could ..have caused and would have caused the eventual breakdown of the wheel. The trial court, after examination upon voir dire, had ruled that Dr. Cushman was a competent expert to testify on the subject. We find that the exclusion of the proffered testimony was erroneous.

Under the authority of the Western Union and White cases, supra, it follows that the rehearing must be granted and the judgment of the lower court affirmed.


author:
George Rose Smith, Justice.
      Byrd, J.,

text:
    Albert Matthews v. Geraldine Matthews
    5-4519
    430 S.W. 2d 864
    Opinion delivered August 26, 1968

      Reinberger, Eilbott, Smith & Staten for appellant.

      John F. Gibson for appellee.
   George Rose Smith, Justice.

This is a divorce case in which the only two issues still being contested relate to the payments required of the appellant for the support of the parties’ younger two children.

Mrs. Matthews obtained a divorce in September, 1965. By a supplementary decree entered in October, 1966, the chancellor approved a property settlement (which the chancellor considered to be a liberal substitute for alimony) and directed Matthews to pay $300 a month for the support of his two minor daughters— .Dinah Dale, who was almost 18, and Dawn Elizabeth, who was six. There was no appeal from that decree, which has therefore become conclusive except to the extent that changed conditions may have arisen.

Two months after the entry of the supplementary decree Matthews filed a petition asserting that Dinah Dale had reached the age of 18 on December 11, 1966, that she was of sound mind and body (a fact later established by stipulation), and that the monthly support payment of $300 should be reduced by whatever amount had been provided for Dinah Dale. By agreement of the parties no additional testimony was taken. The chancellor concluded that the payments should continue at the level of $300 a month until Dinah Dale’s graduation from high school in May, 1967, after which the allowance for the support of Dawn Elizabeth alone would be fixed at $200 a month. By this appeal Matthews questions both modifications of the earlier decree.

Upon the first point Matthews contends that his obligation to support the older child should have been terminated when she became of age rather than when she finished high school about six months later. Counsel cite, among other cases, Worthington v. Worthington, 207 Ark. 185, 179 S.W. 2d 648 (1944), where we reaffirmed our earlier holdings that “ordinarily” a parent’s obligation to support a normal child ceases upon majority of the child. It may be observed that in the Worthington case the father actually agreed to support both his daughters until they became self-supporting, which in each instance proved to be at the age of nineteen.

Upon the point at issue our cases have not laid down an inflexible rule. In Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), we pointed out that an earlier opinion had said that “ordinarily” there is no legal obligation on the part of a parent to support his children after they become of age. But we went on to say: “A significant word in the above quotation is the word ‘ordinarily’, showing that the Court realized there might be circumstances which could impose on a parent the duty to support a child after such child became of age.”

In the case at bar we are not willing to say that the chancellor’s decision was against the weight of the evidence. Had the chancellor terminated the appellant’s support payments for Dinah Grale as soon as she became of age, it may be assumed, as far as this record shows, that she would have been forced to drop out of high school to support herself, there being no obligation on the part of either of her parents for her continued maintenance. We know, by common knowledge, that a high school diploma is of almost inestimable value to a young person who seeks to make his or her own living. The appellant, as a result of having taken no appeal from the supplementary October decree and as a result of having offered no new testimony at the hearing with respect to the modification of that decree, is not in a position to contend that he has suffered an undue hardship by having to support his daughter during the six months between her coming of age and her graduation from high school. Upon the facts of this case — and our decision of course is limited to those facts — we sustain the chancellor’s slight extension of the appellant’s minimum duty to support the older child.

We have concluded, however, that the weight of the proof does not sustain the chancellor’s allowance of $200 a month for the support of six-year-old Dawn Elizabeth. At the hearings below Mrs. Matthews’ testimony lumped all her family expenses so inextricably together that it is impossible to winnow from the record a reasonable estimate of what it costs to support Dawn Elizabeth alone. It is fair to say, however, that the proof wholly fails to establish that $200 of the original $300 monthly allowance is now needed for Dawn Elizabeth’s support, or will be so needed in the near future. To the contrary, the inferences to be drawn from the proof are that the older daughter’s necessary maintenance decidedly exceeded that required for her six-year-old sister. Common knowledge rebuts the notion that it costs as much to support a girl of six as it does to support a young lady of eighteen. On the record as a whole we have concluded that the allowance for the support of Dawn Elizabeth should be reduced to $125 a month, subject to such modifications as may be called for by changed conditions that may develop in the future.

Upon this phase of the case counsel for the appellee makes the argument, supported by some citation of authority, that the original $300 monthly allowance ought not to be even roughly prorated between the two daughters, for the reason that the father’s limited means might have compelled the court to approve an allowance that actually fell far short of being enough for the support of both children. If the record supported that argument then of course it would be altogether proper for the greater part of the $300 allowance — or even the whole of it- — to be continued in force for the necessary support of Dawn Elizabeth. Our study of the testimony, however, does not convince us that this case is one in which the original allowance was necessarily fixed at an inadequate sum owing to the father’s inability to pay the full amount required for his daughters’ maintenance. Consequently we are unable to sustain the appellee’s contention upon the point.

Modified and affirmed.

Harris, C. J., not participating.

Byrd, J.,

dissents as to the appellant’s legal liability for his daughter’s support after she reached her majority.


author: Paul Ward, Justice. John A. Fogleman, J.

text:
    Arkansas State Hwy. Commission v. A. L. Young, et al
    4611
    431 S.W. 2d 265
    Opinion delivered August 26, 1968
    [Rehearing denied September 30, 1968.]

      Thomas B. Keyes and Kenneth R. Brock, for appellant.

      Robinson and Booth for appellees.
   Paul Ward, Justice.

This is an eminent domain proceeding, initiated by the State Highway Commission (appellant here) to condemn 11.18 acres of land belonging to A. L. Young (appellee here) for use in the construction of Interstate Highway No. 40 — in Crawford County. This is an appeal from a jury verdict in the amount of $52,000 in favor of appellee for the taking of said land. Appellant sought, in the same action, to condemn land belonging to other persons, but they are not parties to this appeal.

The only ground relied on by appellant for a reversal, is:

“The trial court erred in allowing the testimony of appellee Young and witness Ragge to stand with respect to total damages to entire tracts.”

To better understand the issue raised we set out below the necessary undisputed facts involved.

Appellee’s property consists of three separate parcels of land designated as #330, #360 and #366. We are here primarily concerned with value testimony relating to parcel #330 which consists of 6.8 acres. ■

During the trial appellee and his three witnesses each placed a total valuation on all three parcels, ranging from $65,000 to $74,050. The total valuation on the three parcels was placed at around $23,000 by appellant’s witnesses. However, in fixing said values, appellee and one of his witnesses testified (in substance): (a) that a portion of parcel #330 was best suited for residential purposes; that it could be divided into eight lots —each worth $2,000, and (b) that there were certain farm buildings worth $4,500. The trial court, over appellant’s objection, allowed the above testimony to go to the jury.

For the purpose of this opinion it may be conceded (and we understand appellee does concede) that the trial court erred in admitting the introduction of said testimony. In this connection we merely refer to the twc pertinent statements by this Court: In Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S.W. 2d 86, we said:

“Such testimony allowed the jury to compare the value of the subject lots in Lakewood Addition without any knowledge of numerous factors that would have to be considered in order to make the comparison fair and equitable. It necessarily follows then that the jury’s verdict would be based on conjecture and speculation.”

In Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495, there appears this statement :

‘ ‘ Of course a verdict rendered by a jury which was partially based on testimony relating to the commercial value of the land, and partially based on testimony relating to the land’s value for residential purposes, would not be proper, but it is for the jury to determine the best and highest use of a landowner’s property.”

It is the contention of appellee, however, that the above mentioned error was later corrected by the trial court, and we agree with that contention. At the close of the testimony given by appellee and Bagge, appellant moved the trial court to strike their testimony. Thereupon the trial court announced that it was sustaining appellant’s motion with the following limitations: (1) it would allow the testimony to stand as to the tract, but would exclude the testimony relative to lot value and the farm buildings; and, (2) “subject to my instructions to the jury...” To the above both parties saved exceptions. Thereupon the court, in material part, instructed the jury as follows:

“Now, ladies and gentlemen of the jury, I have allowed some testimony to reach you that should not have gone to you. So I instruct you at this time to disregard and not to consider the testimony of both Mr. Ken Ragge, who just testified, and of Mr. A. L. Young, with reference to the value of the buildings —the two barns, the milk shed and the loading chute' — on the land taken. You will not consider the value testimony which they gave as to those buildings, nor will you consider, and I instruct you now not to consider, and to disregard the per lot valuation which they place on the undeveloped land, the unsubdivided land where the buildings were that were taken. So you will disregard the value testimony with references to those buildings and the per lot valuation of this land which has not been subdivided and on which the buildings stood that was taken. ’ ’

After the above the court proceeded, without objection by either side, to hear testimony from other witnesses.

If the above actions of the court did not cure the previous error it was, we think, incumbent on appellant to so indicate at the time. We also point out that the court gave many other instructions to the jury which arc not abstracted and to which no objection is made.

Finding no reversible error the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.

Brown & Fogleman, JJ., concur.

John A. Fogleman, J.

I concur in the result because I agree that the admonition given the jury by the court removed any prejudice that there may have been in any error in admission of testimony. I do not agree that there was error in admitting testimony with reference to the evaluation of parcel #330 as eight lots worth $2,000 apiece.

As I understand testimony in this case, this property had an 800-foot frontage along the road, the highest and best use of which was for eight building lots which, could be sold for $2,000 each. This is a different situation from that which exists when a landowner trys to show how property could be divided into lots which could be sold only after the land had been developed so that the highest and best use of the property would be for residential building lots. The testimony of the landowner and the valuation expert offered by him would indicate a present market for this 800 feet in lots. This takes the testimony out of the realm of speculation, which is ordinarily the reason for excluding this type of evidence.

I am authorized to state that Brown, J., joins in this concurrence.


author: Lyle Brown, Justice.

text:
    Geneva Peters v. The State of Arkansas
    5352
    430 S.W. 2d 856
    Opinion delivered August 26, 1968
    [Rehearing denied September 23, 1968.]

      Howell, Price and Worsham, foi’ appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Geneva Peters was charged with second degree murder for the fatal shooting of her husband. She was convicted of manslaughter. Mrs. Peters here contends that the evidence and the applicable law establish excusable homicide.

Mrs. Peters was required to use all reasonable means within her power and consistant with her safety to avoid killing her husband. McDonald v. State 104 Ark. 317, 149 S.W. 95 (1912). If in that respect she acted too hastily and without due care, the killing amounted to manslaughter. Ellis v. State, 234 Ark. 1072, 356 S.W. 2d 426 (1962). The trial court, sitting as a jury, concluded that Mrs. Peters’ actions did not comport with the recited rule. We therefore examine the brief evidence in light of that rule.

Geneva and Douglas Peters had been married some eight years and had two children. On the day preceding the fatal shooting that night, Geneva and Douglas had a quarrel, so she testified. Geneva recounted that she went to her mother’s home nearby. The couple had a mutual friend and neighbor, Wardell Davis. When the latter learned Geneva was at her mother’s house he called Geneva, presumably and according to Geneva, to reconcile Geneva’s and Douglas’ differences. The “peacemaker” drove to the mother’s home and picked up Geneva about 8:00 p.m. They remained together for some two hours. According to Geneva, they drove around, talked, and had a drink of whiskey. About 10:00 p.m. Wardell Davis suggested that he take Geneva back to her mother’s because Davis was due to pick up his wife, who would get off work at eleven o ’clock. They returned to the mother’s home and parked, and it was at that point that Douglas Peters came to the Wardell Davis car.

Appellant and Wardell Davis supplied the testimony as to the shooting. The husband approached the car from the passenger side. If he had a weapon it was not visible. He could not open the door because Geneva had it locked. Since the car had only two doors, the husband went around the car to the driver’s side, opened that door, and reached for Geneva. In the meantime she had removed a pistol from her purse. She fired three times, all the bullets striking her husband. He died in a matter of minutes.

Appellant testified that she feared for her life because, some three months prior, Douglas had beat her. Even if she honestly possessed that fear she would not be relieved of the duty to act with due care and avoid the killing if it could be averted without serious danger to Mrs. Peters. She made no effort to retreat via the right door; she did not call for help; the unarmed husband would have to literally climb over the driver to get his hands on Geneva; and she gave no warning to her husband that she had a gun and would shoot if he approached further. The trier of facts concluded that appellant did not use all reasonable means consistent with her safety to avoid the killing.

From the testimony recited, together with the fact that the trial court could well have thought (as we think he did) that appellant’s story was woven out of whole cloth, we cannot say the court’s findings are not supported by substantial evidence.

Affirmed.


author: J. Fred Jones, Justice.

text:
    Mortimer Jackson Caldwell v. State of Arkansas
    5362
    431 S.W. 2d 456
    Opinion delivered August 26, 1968

      J. Patrick Reilly, for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, Mortimer Jackson Caldwell, was tried before a jury in the Phillips County Circuit Court on information filed by the prosecuting attorney charging him with forgery and uttering. He was convicted of the crimes as charged and was sentenced to five years in the penitentiary on each count. On appeal to this court appellant relies on the following points for reversal:

“The evidence introduced at the trial was insufficient to prove the Defendant guilty beyond a reasonable doubt and was insufficient to support the verdict of the jury.
“The Court should have granted the Defendant’s request for new counsel.”

The record before ns reveals that on the night of February 14, 1968, the Dixie Furniture Company in Marvell, Arkansas was burglarized and among the items taken was a check for $300.00 from Helena Federal Savings & Loan to Roy Cope as payee. Cope had given the check to the furniture company in the purchase of a television set and had endorsed the check. This check was subsequently cashed at a drive-in window of the Helena National Bank and at the trial the bank teller who cashed the cheek, positively identified Caldwell as the individual who presented the check at the teller’s window. This witness testified that appellant Caldwell identified himself as James Marvin Graves by use of an Alabama driver’s license, issued to James Marvin Graves; that the appellant explained to her that he had sold an automobile to Cope and that the appellant endorsed the check as J. M. Graves in her presence and received cash in exchange for the check. This evidence standing alone is amply sufficient to sustain the conviction, and disposes of appellant’s first point.

As to appellant’s second point, an attorney was appointed by the trial court to assist the appellant in his defense. At the close of the State’s evidence, the appellant stated that he was dissatisfied with the services of his attorney and requested the court to appoint another attorney to represent him. Appellant insisted that one Lonnie Charles McGowen, and not he, had actually cashed the creek and that his attorney had failed to call as a witness a teller at Phillips National Bank who would testify that McGowen had presented the check to that bank in an effort to cash it before McGowen did cash the check at Helena National. The court refused the request for a change in appointed counsel and explained to the appellant that only the State’s witnesses had testified at this point. McGowen was called as a witness for appellant and testified that he first became acquainted with the appellant in Birmingham, Alabama. McG-owen testified that he escaped from jail in Montgomery, Alabama on December 22, and his wife borrowed appellant’s automobile for the trip to Arkansas. McGowen testified that a boy named Richard Calloway came to Arkansas with him and his wife and that he and Calloway committed eight burglaries in Arkansas including the one at Dixie Furniture Company on February 14. He testified that just prior to February 14, he called the appellant in Alabama to come get his automobile and that the defendant arrived on the 14th. He testified that Calloway assisted in the burglary of the furniture store on the night of February 14, and that he hasn’t seen Calloway since that time and does not know where he is. McGowen testified that he took the check in question, along with other items, from the safe in the Dixie Furniture Company burglary and that he and not Caldwell cashed the check. He testified that he first presented the check to Phillips National Bank identifying himself as Graves by use of the Alabama driver’s license which had been sent to him by Graves. McGowen testified that at his request, appellant drove him, in appellant’s automobile, to the drive-in window of the Helena National Bank where he, and not the appellant, endorsed and cashed the check. He testified that he was sitting on the right side in the front seat of the automobile when he endorsed and cashed the check: that the drive-in hank teller window was on the left and that he just simply leaned over and cashed the check and that the appellant didn’t know what was going on. McGowen identified Leona Trainor as the Phillips National Bank teller to whom he first presented the check. Leona Trainor testified that she did not recall the incident and did not remember ever having seen McGowen before she saw him in court.

McGowen. had entered pleas of gnilty to burglary and larceny and was under sentence at the time of the trial. The jury chose to believe the testimony of Mary Ruth Hallowell, the National Bank teller who cashed the check and positively identified the appellant as the one who presented and endorsed it. This the jury was entitled to do, and finding no error in the trial court’s refusal of appellant’s request for different counsel, the judgment of the trial court is affirmed.

Affirmed.