Sturdivant v. City of Farmington
| Decision Date | 05 November 1973 |
| Docket Number | No. 73--137,73--137 |
| Parties | Helen STURDIVANT, Adm'x, Appellant, v. CITY OF FARMINGTON, Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Jones & Segers, Fayetteville, for appellant.
James E. Evans, Sr., Springdale, for appellee.
This suit in tort was brought by appellant against appellee, City of Farmington. It arose out of a fatal collision between the city marshal of Farmington and appellant's intestate, a minor. The city's demurrer to the complaint was sustained on the ground that municipalities are immune from tort action. Act 165, 1969; Ark.Stat.Ann. § 12--2901 (Supp.1971). On appeal it is asserted that the recited act makes it mandatory that the State's political subdivisions carry liability insurance and that failure to do so makes the city amenable to a tort action.
In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), we set aside the rule of law established by precedent which granted immunity to municipalities from tort liability. The first session of the General Assembly thereafter, referring specifically to Parish v. Pitts, enacted Act 165 (Ark.Stat.Ann. § 12--2901--03) (Supp.1971):
Sec. 1. 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.
Sec. 2. Each county, municipal corporation, school district, special improvement district, or other political subdivisions of the State is hereby authorized to provide for hearing and settling tort claims against it.
Sec. 3. All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act (Ark.Stat., § 75--1402 et seq.; Act 347 of 1953, as amended).
Sec. 4. It is hereby found and determined by the General Assembly that because of the decision of the Arkansas Supreme Court in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45, municipalities and all units of local government are in imminent danger of bankruptcy because of tort lawsuits and vital public services are in danger of being discontinued. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary to protect the public peace, health and safety, shall take effect immediately on its passage and approval.
We have had at least three cases in which we have discussed Act 165. Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W.2d 94 (1969); Chandler v. Pulaski County, 247 Ark. 262, 445 S.W.2d 96 (1969); Williams v. Jefferson Hospital Ass'n., 246 Ark. 1231, 442 S.W.2d 243 (1969). In those cases we did not discuss the precise question now before us, namely, that the failure to carry liability insurance makes the political subdivision amenable to a tort action.
The preamble to Act 165 states one of the purposes of the act to be 'to require all political subdivisions to carry liability insurance on their motor vehicles'. Then Section 3 says 'they shall carry liability insurance on all their motor vehicles'. We think it was the intent of the General Assembly to require such liability insurance.
Two of the fundamental purposes of Act 165 are (1) to set aside Parish v. Pitts, supra, and (2) to make it possible for persons injured by municipally owned vehicles to have redress for negligence. If we hold that the city of Farmington is entitled to the immunity afforded it under Act 165 and at the same time hold that it is not mandatory that it comply with the liability insurance provision thereof, then we have destroyed the second purpose of the act above enumerated. The mandatory provision for carrying liability insurance is so strongly and clearly stated that we cannot agree to such emasculation. We think, and so hold, that any city which fails to conform to the insurance requirement places itself in the posture of being responsible, as would a self-insurer, in case it is found to be liable, in an amount not to exceed the minimum amount prescribed in the Motor Vehicle Safety Responsibility Act. See Ark.Stat.Ann. § 75--1466 (Supp.1971). We think it reasonable to conclude that the legislature intended that the public be protected to the extent of the recited limits. That may be done in only one of two ways, namely, insurance or self-insurance. Our interpretation avoids opportunities to evade the act. An interpretation which defeats evasion is favored in the law. 50 Am.Jur., Statutes, § 361. Then in Woodruff v. State, 3 Ark. 285 (1840), it was said: 'And such construction ought to be put upon it, (the act) as will not suffer it to be eluded'. And in Sutherland, Statutory Construction (4th Ed.) Vol. 2A, § 57.01 we find this significant statement:
Reversed and Remanded.
I cannot agree with the court's construction of the act, and I would affirm the judgment. Had the legislature said, or indicated any intent whatever to say, what the court says today I would be bound to agree. I feel the court has again acted legislatively in the municipal immunity field. I need not dwell on my differences with the majority in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45, however, because my position in that case leads directly to a construction of the statute, which is the same approach as that taken by the majority.
Previous decisions mentioning Act 165 of 1969, the General Assembly's reaction to Parish v. Pitts, are not directly in point, because the decision in Parish v. Pitts had no direct bearing upon tort liability of either counties or charitable institutions. The court's remarks about the act are pertinent, however.
In Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W.2d 94, we deemed the action of the General Assembly sufficient reason why a suitor in tort against the county could not prevail, calling attention to Act 165. There we said:
This statement of public policy is plain and unambiguous, and leaves no room for doubt.
In Chandler v. Pulaski County, 247 Ark. 262, 445 S.W.2d 96, decided the same day, we said that the reasoning in Sullivan applied. Then we recited the reasoning:
There, we point out that the General Assembly of 1969 enacted legislation which became Act 165, the legislation declaring the public policy of the State of Arkansas to be 'that all counties, municipal corporations, school 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.'
To the same effect, see Reem and Rhodes v. Natural Gas. Imp. Dist., 247 Ark. 983, 448 S.W.2d 647. In Williams v. Jefferson Hospital Association, 246 Ark. 1231, 442 S.W.2d 243, in rejecting a plea that we abandon the doctrine of charitable immunity, 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 be that all political subdivisions of the State be immune from tort liability. The Act does require all such subdivisions to acquire public liability insurance on their vehicles. It is further provided that such governmental units may hear and settle tort claims against them. It can well be argued that this expression of legislative intent to retain governmental immunity would bring forward a similar expression in the field of charitable immunity if this court abrogated the latter rule.
True it is, we were dealing with immunities of agencies other than municipalities. It is also true that the requirement of automobile liability insurance had no application in any of these cases. It is significant that in none did we find any qualifying 'ifs,' 'ands' or 'buts' in the statute. This is attributable to the fact that there are none, or were not until the court imported them today. It is also significant to me that the language quoted from Williams is consistent with my construction of the act. That language indicates the appropriate procedure in tort claims against municipal corporations.
The language of Section 1 of the act says without qualification that 'no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.' This is a positive and unequivocal statement and there is no language qualifying or restricting this language anywhere in the act, even if we could consider the act itself ambiguous, and look to the title and emergency clause. Section 3 definitely does not limit, qualify or restrict this positive prohibition. We have said that this statement of public policy is unambiguous. If so, no resort to the title or the emergency clause is proper. But if it is ambiguous enough to permit this, certainly nothing can be found to mandate the construction given the act by the majority in either. The emergency clause is in the majority opinion. The title reads:
AN ACT to Declare It to Be the Public Policy of the State of Arkansas That the State and Its Political Subdivisions Shall Not Be Liable for Tort Under the Laws of the State of Arkansas and to Provide That No Action Shall Be Maintained Therefor; to Require All Political Subdivisions to Carry Liability Insurance On Their Motor Vehicles; to Declare An Emergency; and...
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