Fore v. Circuit Court of Izard County
| Decision Date | 20 April 1987 |
| Docket Number | No. 87-2,87-2 |
| Citation | 727 S.W.2d 840,292 Ark. 13 |
| Parties | Donald FORE, Petitioner, v. CIRCUIT COURT OF IZARD COUNTY, Respondent. |
| Court | Arkansas Supreme Court |
David Hodges, Little Rock, Jones & Hixson by Lewis Jones, Fayetteville, for petitioner.
Bill W. Bristow, Jonesboro, Gardere & Wynne by Joe Harrison, Dallas, Tex., Penix Law Firm by Richard Lusby, Jonesboro, Tom Allen, Batesville, for respondent.
This case concerns tort claims arising out of an on-the-job accident that resulted in the death of one employee and the injury of another. Both claims have been accepted by the employer and its insurance carrier as compensable injuries. The plaintiffs' (respondents') complaints filed against the petitioner, who was the supervisor of the work being done at the time of the accident, allege that the supervisor was negligent in keying a microphone, causing dynamite to explode. This explosion resulted in the injuries complained of by the respondents.
Depositions taken before the hearing revealed that the petitioner was the foreman of the injured employees at the time of the blast. The petitioner filed a motion to dismiss and a motion for summary judgment, alleging immunity from suit based upon the exclusivity of the Workers' Compensation Act. The trial court denied both motions. The petitioner then filed a petition for a writ of prohibition in this Court. The arguments for the issuance of this writ are that the petitioner is protected by the Workers' Compensation Act and that there is no adequate remedy at law. Under the facts and circumstances of this case, we agree and issue the writ.
The facts of the case are uncomplicated and undisputed for the most part. Donald Fore (the petitioner) was the supervisor of Larry Carpenter (the decedent) and Bobby Dickerson (the injured). All three men were employees of Drake's Backhoe Work, Inc. The death and injuries complained of arose out of and in the course of the employees' employment.
We first consider the threshhold question of whether a writ of prohibition is the proper and correct remedy in this case. The respondents correctly quote our holding in Farm Bureau Mutual Insurance Company of Arkansas v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983), which states: "a petition for a writ of prohibition is not the proper remedy for failure of the trial court to grant a motion to dismiss." We reaffirm this statement; however, for reasons stated herein, we hold that the present case is an exception to the rule.
Prohibition is an extraordinary remedy and will not be granted unless the lower court clearly lacks jurisdiction or there is no adequate remedy at law. Arkansas Nursing Home, Inc. v. Rogers, 279 Ark. 433, 652 S.W.2d 15 (1983). The writ of prohibition has its genesis in the Ark. Const. of 1874, art. 7, § 4, which establishes the powers of the Arkansas Supreme Court and states in part:
[I]n aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.
We have frequently stated that prohibition is a proper remedy to prevent a lower court from exceeding its jurisdiction. An examination of our cases reveals that we have not limited the term "jurisdiction" to only subject matter considerations; rather, we have used the term "jurisdiction" in a broad sense. We have issued writs of prohibition to prevent a court from doing an act clearly contrary to the undisputed facts, in excess of authority, or where the writ is clearly warranted. For example, in Norton v. Hutchins, 196 Ark. 856, 120 S.W.2d 358 (1938), this Court held that a writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction. In Norton the petitioner sought a writ of prohibition to prohibit a chancellor from issuing a restraining order against her. The underlying action was against the petitioner's former husband to enforce a property settlement agreement. The petitioner obtained a temporary prohibition order from Associate Justice Baker and the full court later issued a permanent writ. The subject matter of the Norton case was clearly within chancery subject matter jurisdiction. However, the trial court was about to make an order which was not proper under the law. This same rationale applies to many of our cases concerning prohibition.
We issued a writ of prohibition in Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983). There the question presented was one of venue, not subject matter jurisdiction. In Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980), we granted a writ prohibiting the circuit court from taking evidence de novo, in an appeal from a decision of the ABC. There we stated:
A writ of prohibition is, of course, appropriate to relieve one from the onerous burden of litigation when the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of its jurisdiction.
In Goodall there was no question of subject matter jurisdiction; it was simply the manner in which the court intended to proceed on appeal from the decision of an administrative agency.
We also issued a writ of prohibition in Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). There we stated:
Ordinarily we would not issue a writ of prohibition in such a case. Such a writ is discretionary and is most often used when the trial court has no jurisdiction, has clearly exceeded its authority, or there are no disputed facts and the writ is clearly warranted.
We used the same language in Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977). Further citations are unnecessary to establish that we have used the term "lack of jurisdiction" in a manner so as to allow the issuance of the writ even when subject matter is properly in the lower court if the facts are undisputed and the writ is clearly warranted.
The respondents base their resistance to this petition on the allegation that the petitioner was responsible for his individual act of negligence and that such negligent act was unrelated to the employment relationship, thereby rendering him a third party tortfeasor and liable for his individual act of negligence. The trial court agreed with respondents' theory, subject to proof of the allegations.
The petitioner relies upon Ark.Stat.Ann. § 81-1304 (S...
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