Hardin v. City of Devalls Bluff

• Decision Date: 06 May 1974
• Docket Number: 73-290,Nos. 73-289,s. 73-289
• Citation: 256 Ark. 480,508 S.W.2d 559
• Parties: Patsy HARDIN, Admx., Appellant, v. CITY OF DEVALLS BLUFF, Arkansas, et al., Appellees. Patsy HARDIN, Admx., Appellant, v. COUNTY OF PRAIRIE, Arkansas, et al., Appellees.
• Court: Arkansas Supreme Court

Page 559

508 S.W.2d 559

256 Ark. 480

Patsy HARDIN, Admx., Appellant, v. CITY OF DEVALLS BLUFF, Arkansas, et al., Appellees.

Patsy HARDIN, Admx., Appellant, v. COUNTY OF PRAIRIE, Arkansas, et al., Appellees.

Nos. 73-289, 73-290.

Supreme Court of Arkansas.

May 6, 1974.

Ray & Donovan by Robert J. Donovan, Marianna, for appellants.

Wallace, Hilburn & Wilson, Ltd. by Zachary D. Wilson, N. Little Rock, Chas. A. Walls, Jr., Lonoke, Jim Guy Tucker, Atty. Gen., by Lewis D. Smith, Deputy Atty. Gen., Little Rock, for appellees.

HARRIS, Chief Justice.

These cases, consolidated for submission, relate to governmental immunity of cities and counties. Appellant, Patsy Hardin, Administratrix of the Estate of Nadine Hardin Alsup, alleges in a complaint against both Prairie County, together with its County Judge, and the City of DeValls Bluff and its Mayor, Recorder, and Board of Aldermen that Mrs. Alsup was incarcerated at DeValls Bluff for public drunkenness and disturbing the peace by an officer acting in behalf of the City and the County; ¹ that she was confined in the jail, left there without an attendant, and that subsequently a fire occurred in the jail from which Nadine Alsup died of suffocation. It was asserted that confinement under the circumstances constituted negligence which was the proximate cause of decedent's death. ² The County demurred to the complaint and the City moved for summary judgment. The court sustained the demurrer of the County and dismissed the complaint against it, appellant declining to plead further, and likewise granted summary judgment in favor of the City dismissing the action of appellant. From these judgments, appellant brings this appeal. For reversal three points are asserted, but all relate to the constitutionality of Act 165 of 1969, and that is actually the only issue before this court.

Pertinent background of this case reflects that on June 3, 1968, this court handed down the opinion of Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (Rehearing denied July 15, 1968), where we said that the rule of law established by precedent granting to municipalities immunity from liability for damages negligently inflicted on others while acting in a governmental capacity was overruled. That case involved injuries allegedly suffered by Mrs. Parish when her car was negligently struck by the city's garbage truck. The trial court had sustained the demurrer of the City and in the opinion cited, we reversed that court.

The General Assembly of 1969 enacted legislation which became law on March 5, 1969, approximately ten months following Parish v. Pitts, supra. In the first section of that act, Ark.Stat.Ann. § 12-2901 (Supp. 1973), the General Assembly set forth the State's public policy, as follows:

'12-2901. It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.'

This is the section that is primarily at issue, ³ and which appellant contends is contrary to Article II, Section 13 of the Arkansas Constitution of 1874, which provides:

' § 13. Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.' ⁴

At the outset, let it be pointed out that the decision in Parish v. Pitts, supra, was not based upon any constitutional ground, and the constitutional arguments now presented were not relied upon in any manner by this court in reaching its conclusions. Accordingly, the legislature was free to legislate in this field and to declare the State's public policy. This it did very quickly, and the action taken by the legislature was commented upon in the first opinion handed down by this court after the passage of Act 165 of 1969 (Williams v. Jefferson Hospital Ass'n Inc., 246 Ark. 1231, 442 S.W.2d 243) where we said:

'There is another reason why the Parish case is not controlling. The Legislature acted within less than one year after Parish v. Pitts. By Act 165 of 1969 that holding was overturned. That Act declares the public policy to the that all political subdivisions of the State be immune from tort liability.'

On October 6, 1969, two cases were handed down by this court which referred to Act 165. The first of these was Sullivan, Adm'r. v. Pulaski County, 247 Ark. 259, 445 S.W.2d 94, wherein we quoted Section 1 of the Act, and then stated, 'This statement of public policy is plain and unambiguous and leaves no room for doubt.'

We also pointed out that Parish v. Pitts, supra, had made it clear that the court in rendering that opinion had not considered the liability of any other governmental unit or political subdivision; accordingly, as far as counties are concerned, this court has never departed from the doctrine of governmental immunity. Chandler v. Pulaski County, 247 Ark. 262, 445 S.W.2d 96, also referred to Act 165 and made it clear that the General Assembly had full authority to declare the public policy of the State in this field.

As to the constitutional provision relied upon by appellant and hereinbefore set out, let it first be said we do not consider that Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326, relied upon in large measure by appellant, has any bearing on the issue here presented for Emberson related only to actions between individuals.

Appellant mentions the provisions of Act 165 of 1969 (Ark.Stat.Ann. § 12-2902 (Supp.1973)) which authorize political subdivisions of the State of provide for hearings and the settling of tort claims against them, and asserts that such provisions are invalid and that she is entitled to have her action heard in a court of law. Included in this contention is the argument that she is otherwise deprived of an appeal. For reasons hereafter set out, we do not deem it necessary to discuss Section 12-2902, bearing some similarity to statutes dealing with the State Claims Commission, ⁵ and particular statutes relating to other agencies ⁶ wherein the judicial branch of the government is precluded from reviewing actions taken by such instrumentalities.

Over a century ago in the case of Granger v. Pulaski County, 26 Ark. 37, this court, referring to counties, said:

'It is well settled that, at common law, these quasi corporations are not liable to a private action at the suit of a party injured, resulting from the non-performance by its officers of a corporate duty, and no such action lies unless given by statute. This doctrine has been repeatedly asserted and applied by the courts of this State, where actions have been brought against counties and townships for injuries received in consequence of defects in the public highway. * * *'

This holding of county immunity for governmental functions has been reiterated during the past one hundred years so many times that further citation of authority is unnecessary.

With the exception of Parish v. Pitts, supra, the same holding has been consistent with regard to municipal corporations. In 1872, in the case of City of Little Rock v. Willis, 27 Ark. 572, Chief Justice McClure, writing for this court, said:

'It is no easy matter to lay down a precise rule embracing the torts for which a private action will lie against a municipal corporation; but it may be generally stated, that the liability of a body created by statute, must be determined by the statute which creates it, for it is clear that a right of action against a municipal corporation does not exist at common law.

'That a municipal corporation may be made liable for damage, in a case like that presented by the record of this case, there is no doubt; but that is not the question; the question is, does the statute, creating the city of Little Rock, give to the appellee a right of action for the wrong complained of? This question must be determined, not by what ought to be, but by the plain letter of the statute. Our duty is to declare what the law is, and not what it ought to be.'

In the 1879 case of Trammell v. Town of Russellville et al., 34 Ark. 105 (approximately five years after the...