Kelly v. State, 78-303

Decision Date19 March 1979
Docket NumberNo. 78-303,78-303
Citation265 Ark. 337,578 S.W.2d 566
PartiesSpencer KELLY, Petitioner, v. STATE of Arkansas and Warren E. Wood, Circuit Judge of the Sixth Judicial Circuit of the State of Arkansas, 2nd Division, Respondent.
CourtArkansas Supreme Court

Bill Clinton, Atty. Gen., by Jesse L. Kearney, Asst. Atty. Gen., Little Rock, for respondent.

Haskins, Eubanks & Wilson, by Gary L. Eubanks, Little Rock, for petitioner.

BYRD, Justice.

In seeking this Writ of Prohibition, Petitioner Spencer Kelly, a state trooper, contends that a state trooper, as an officer of the State of Arkansas, cannot be sued for damages that result from an automobile collision with a state trooper car. Specifically, petitioner relies upon Ark.Const. Art. 5 § 20 which provides:

"The State of Arkansas shall never be made defendant in any of her courts."

The facts giving rise to this controversy show that petitioner, while on his regular work shift, was driving his state patrol car along Pratt Road in Pulaski County with the intention of going to 4813 Baseline Road to have dinner with a friend. At the intersection of Pratt Road and Arch Street, petitioner failed to observe a stop sign and as a result thereof collided with an automobile being driven along Arch Street and occupied by Mr. and Mrs. Kenneth Mitchell.

In construing Art. 5 § 20, Supra, with respect to what actions against an officer constitute an action against the State, Hickenbottom v. McCain, Comm'r of Labor, 207 Ark. 485, 181 S.W.2d 226 (1944), we have stated:

" '. . . (W)here a suit is brought against an officer or agency with relation to some matter in which defendant represents the State in action and liability, and the State while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the State, will operate to control the action of the State or subject it to liability, the suit is in effect one against the State and cannot be maintained . . .'."

It was also there pointed out that where the suit is against an officer to prevent him from doing an unlawful act to the injury of the complaining party, the officer cannot shield himself behind the fact that he is an officer of the State.

When considered in connection with what constitutes an action against the State, we have concluded that a negligence action for personal injuries...

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12 cases
  • Gasper v. Freidel, 16540
    • United States
    • Supreme Court of South Dakota
    • 19 Octubre 1989
    ...that merely being an agent or employee does not alter the duties otherwise owed to third parties. See, e.g., Kelly v. State, 265 Ark. 337, 578 S.W.2d 566 (1979); Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608 (1938); E.H. Emery & Co. v. American Refrigerator Transit Co., 193 Iowa 93, 184......
  • Kyllo v. Panzer, s. 18713
    • United States
    • Supreme Court of South Dakota
    • 16 Agosto 1995
    ...either, by his negligence, in respect to duties imposed by law upon him in common with all other[s].' Id. (quoting Kelly v. State, 265 Ark. 337, 578 S.W.2d 566, 567 (1979)). Considering common-law principals in light of constitutional guarantees, the court in Bego held that sovereign immuni......
  • Bego v. Gordon, 15295
    • United States
    • Supreme Court of South Dakota
    • 17 Noviembre 1986
    ...that merely being an agent or employee does not alter the duties otherwise owed to third parties. See, e.g., Kelly v. State, 265 Ark. 337, 578 S.W.2d 566 (1979); Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608 (1938); E.H. Emery & Co. v. American Refrigerator Transit Co., 193 Iowa 93, 184......
  • Grimmett v. Digby
    • United States
    • Supreme Court of Arkansas
    • 26 Noviembre 1979
    ...relies provides: "The State of Arkansas shall never be made defendant in any of her courts." We pointed out in Kelly v. Wood, Circuit Judge, 265 Ark. 337, 578 S.W.2d 566 (1979), that an automobile negligence action for personal injuries brought against a state trooper for a violation of dut......
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