Baldwin Co. v. Maner

• Decision Date: 06 December 1954
• Docket Number: No. 5-572,5-572
• Citation: 224 Ark. 348,273 S.W.2d 28
• Parties: THE BALDWIN COMPANY, Petitioner, v. Ernest MANER, Judge, Respondent.
• Court: Arkansas Supreme Court

Page 28

273 S.W.2d 28

224 Ark. 348

THE BALDWIN COMPANY, Petitioner, v. Ernest MANER, Judge, Respondent.

No. 5-572.

Supreme Court of Arkansas.

Dec. 6, 1954.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.

Cole & Epperson, Malvern, Goodwin & Riffel, Little Rock, for appellee.

ROBINSON, Justice.

W. E. Armstrong, an employee of a subcontractor, the Southwest Electric Company, filed a personal injury suit in the Hot Spring Circuit Court against the petitioner herein, The Baldwin Company, prime contractors in the construction of a building for General Motors Corporation. The Baldwin Company filed in this court a petition for a writ of prohibition alleging that the Circuit Court is without jurisdiction because the subcontractor Southwest Electric Company carried workmen's compensation insurance and Armstrong has derived the benefits thereof, and that he therefore has no cause of action against the prime contractor, it being contended that Armstrong's remedy under the workmen's compensation law is exclusive as to the prime contractor as well as to the subcontractor. It is Armstrong's contention that the prime contractor is in this case a third party and therefore subject to a common-law action in tort.

The facts are stipulated. It is agreed that the petitioner Baldwin was the general contractor; that Armstrong was an employee of the Southwest Electric Company, one of the subcontractors on the job; and that Armstrong fell into a pit situated on the job while in the due course of his employment as an employee of the Southwest Electric Company; that Armstrong's employer, Southwest Electric Company, carried workmen's compensation insurance; and that the insurance carrier has paid workmen's compensation benefits to Armstrong as a result of the injuries alleged to have been sustained, the payments having been made under the workmen's compensation law.

There is only one issue: Is the prime contractor subject to a common law action in tort brought by one employed by a subcontractor for injuries sustained in the due course of his employment where the subcontractor has secured the payment of compensation under the workmen's compensation law? This court has not heretofore had occasion to pass directly on the point. The Federal courts have held that the prime contractor is a third party and is subject to a common-law action in tort, but have recognized that when the issue was presented to this court, the construction placed on the statute by the state court would prevail. Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58; Carroll v. Lanza, D.C., 116 F.Supp. 491. The Carroll case on the feature involved here was affirmed by the 8th Circuit Court of Appeals July 30, 1954, a petition for rehearing is now pending. ^* We are not unmindful of the rule that a Federal court decision construing an Arkansas statute is not binding on this court; however, the opinion of such eminent authority is persuasive.

Prior to 1938 section 32 of Article 5 of the constitution of Arkansas provided: 'No act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property * * *.' By Amendment 26, adopted in 1938, the constitutional provision under consideration was amended to read as follows: 'The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property * * *.' It is clear that Amendment 26 gives to the legislature the power to limit the amount of recovery only in cases where there is an employer-employee relationship. In Young v. G. L. Tarlton Contractor, Inc., 204 Ark. 283, 162 S.W.2d 477, 479, Mr. Justice Frank Smith speaking for this court said: 'The amendment provides that otherwise, that is, except in cases arising between employer and employee, no law shall be passed limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.'

The facts being stipulated, it becomes a question of law as to whether the petitioner, the Baldwin Company, is an employer; or is it a third party within the meaning of the workmen's compensation law? If the prime contractor is an employer, the employee's remedy under the workmen's compensation act is exclusive. Ark.Stats. § 81-1304 provides: 'The rights and remedies herein granted to an employee subject to the provisions of this act, on account of personal injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death. * * *.'

If the prime contractor is a third party, he is subject to a common-law action in tort for injuries sustained by an employee of the subcontractor. Ark.Stats. § 81-1340 provides: 'The making of a claim for compensation against any employer or insurance carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury * * *.'

Generally speaking a prime contractor is not the employer of those hired by an independent subcontractor. But here it is contended by petiti...