Brooks continued from page 16
But there is, as before stated, testimony sufficient to show that each of the parties made gaps in the fence, which were not replaced for a considerable length of time, and that both of the parties used these gaps without restoring the fence or protecting the field from the depredation of cattle. Each of these parties was working to a common purpose‑‑that is to say, the construction of the road‑‑and each used the open gaps while being under obligation to repair the gaps so as to prevent injury to the farmers who had crops inside of the inclosure. The case, therefore, comes not only within the rule of joint liability where there is concert of action, but also within the other rule stated above, that there is joint liability where the different acts of negligence concur as to time and place and unite in setting in operation the force which causes the injury. In other words, they used the open gaps for the same purposes and at the same time, each being under duty to repair the gaps, and the conduct of each resulted in admission into the field of large numbers of cattle. It cannot be said that the entrance of the cattle was the result of the separate acts of either, but it was rather the result of the act of both of the parties in failing to repair the gaps so as to keep the cattle out.22 With this case, Arkansas recognized three of Professor Prosser’s categories: concert of action as he defined it, common duty and “concurrent causation of a single, indivisible result, which either alone would have caused.” Neither Troop nor Conery depended on a statute. Both relied on common law.
Arkansas law is no different than the common law. Where common duties are owed, where the tortfeasors act in concert, and where the injury is indivisible, each defendant is liable for the entire harm caused. He is so liable because he caused the entire injury, not because some operation of law makes him liable for something he didn’t do. That’s what joint and several liability means. The Constitutional Violations Two principal constitutional violations, one of Amendment 80, section 3, and the other of Article V, section 32, arise from the Phantom Defendant. Both of these provisions are grounded in separation of powers. Separation of powers is a bedrock principle in our system of government found in Article 4, sections 1 and 2 of the Arkansas Constitution: The Arkansas Supreme Court noted early on that separation of powers “lies at the very foundation, and constitutes the groundwork of all American Constitutions.”23 Since separation of powers provisions appeared in the Constitution of 1836, the Arkansas Supreme Court has held steadfast to an “uncompromising interpretation of the separation of powers doctrine.”24 Separation is meant to check the exercise by any one branch of power “of an encroaching nature. . . . [T]he powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the other, in the administration of their
respective powers.”25 Absent this separation, there is “a tyrannical concentration of all of the power of government in the same hands.”26 “Neither of the three separate departments of government is subordinate to the other and neither can arrogate to itself any control over either one of the others in matters which have been confided by the constitution to such other department.”27 The doctrine of separation of powers contained in the Arkansas Constitution is strong, vital, vibrant, and contemporary. “Our system, providing as it does for a distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.”28 This separation is absolute, and any legislation that infringes upon it is invalid. A. Amendment 80, Section 3 The conflict between Act 649 and Amendment 80 would strike down the Phantom-Defendant provision independent of any infirmity in the abrogation of joint and several liability. A constitutional provision could not be more clear than Amendment 80, section 3. Prior to the enactment of Amendment 80, some ambiguity existed with respect to the roles of the Court and the legislature in enacting rules of practice and procedure.29 Section 3 of Amendment 80 ends that debate forever, unambiguously holding that “the Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts . . . .”30 Any encroachment upon this authority by
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