FEBRUARY 1969

~ PURELY SELFISH REASONS (If No Other)

YOU SHOULD BELONG TO THE ARKANSAS BAR ASSOCIA T/ON

IF YOU ARE A MEMBER You Are eligible for participation

in the Association's Group disability insurance plan.

Over $115,000 cash in disability payments has been paid to members of the Association since the plan was started in 1946. The rates are approximately half what you would be required to pay for a pErsonal pol icy -- assuming you could qual;ty for the protection.

.

,

;~" " /

~I'

And Don't Forget

'J

You Wi II serv~

your profession by supporting the Association" s continuing efforts to improve stands of legal education, of judicial administration and admissions to the bar. You help protect the lawyer's professional status by opposing unauthorized practice, and through an expanded program of pub I i c s e r vic e activities.

the good felloV'.ship and the development of close friendships with your brother ;---=~~-~=-------_:-_~ lawyers at Association activities.

This is an opportunity to serve yourself and the publ ic as well. receive every issue of The Arkansas Lawyer which will bring you interesting, information articles about law, lawyers, court decisions, legal literature, meeting schedules, and news of developments of value in your Your membership inpractice. cl udes your Arkansas Lawyer subscription.

You Will

ARKANSAS BAR ASSOCIATION 314 W. Markham Little Rock, Arkansas

FEBRUARY 1969 VOL. 2 NO.8

THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION

ARKANSAS LAWVER FEATURE ARTICLES

ASSOCIA TlON OFFICERS J. Gaston Williamson. President Robert L. Jones. Pres. Elect Philip E. Dixon, Secretary-Treasurer

EXECUTIVE OIRECTOR C. E. Ransick

Del ivery of Mai I .

2

Mid-Year Meeting

4

Arkansas Bar roundation Report

8

Emerging Trends In Automobile Defective Design Cases

EXECUTIVE COMMITTEE Robert Shults, Chairman Robert C. Compton Stephen A. Matthews Winslow Drummond Otis H. Turner Wayne Boyce

EX-OFFICIO J. Gaston Williamson Robert L. Jones. Jr. Philip E. Dixon William E. Henslee William S. Arnold Richard H. Mays Phillip Carroll Lou is L.. Ramsay, Jr.

EOITORIAL COMMITTEE James W. Moore-Philip E. Dixon J. Michael Shaw-Willis B. Smith Jr. John A. Davis-Dennis L. Shackleford Charles M. Mooney-Eugene Raff Jr. Eugene A. Matthews Jr.-Lynn F. Wade Philip S. Anderson Jr.-Glenn W. Jones

.J. Winston Bryant 9

Unusual Courtroom Designs

1()'11

Justice Fogleman Serves on Awards Jury

.. 14

REGULAR FEATURES The Presidents Report

. J Gaston Williamson 3

Juris Dictum

. . . . . C. R. Huie 15

Law School News

. Dr. Robert Wright 17

Published Quarterly by the Arkansas Bar Association, 314 West Markham, Little Rock, Arl<. 72201. Second class postage 10

non-members of the Arkansas Bar Association $6.00 pcr year and to members $2.00 per year included in annual dues. Any opinion expressed herein is that of the author, and is not necessarily that of the Arkansas Bar Association. The Arkansas Lawyer, or the editorial committee. Contributions to The Arkansas Lawyer are weI路 comed and should be sent, in two copies to the Arkansas Bar Center, 314 West Mark路 ham, Little Rock. Arkan!i.as 72201.

All inQuiries regarding advertising !i.hould be !i.cnt to Bill Logan. Advertising Department.

Arl<ansas Lawyer, PO!i.t office Box 4117 North Little Rock. Ark. 72116.

TITLE INSURANCE

by

CO MMERCIAL STANDARD INSURANCE COMPANY

Delivery of Mail of Dissolved Corporations, and Unincorporated Firms or Associations

FORT WORTH, TEXAS General State Agent lor Arkansas BEACH ABSTRACT §! TITLE COMPANY

Telephone: FRanklin 6-3301 Little Rock, Arkansas

213 West Second Street

Assets Over 519,000,000.00

AGENCIES IN 16 STATES Subject To State Supeovision Everywhere.

Member of American Land Title Association

Helping to develop. the agriculture, industry, and transportation of the Helena trade territory.

Offering

Full Bonk Service Including Trust Service

7te!enllrJVationnl $nnk M.m••"Ole

302 Cherry 2

Helena, Arkansas

Section 154.5 Ca) and Cb) of Title 39, Code of Federal

Regulations, sets forth the manner of making delivery of mail to corporations, and to unincorporated firms or associations.

Normally, few problems arise while the corporations or

unincorporated firms and associations continue in business.

However, problems do arise with some frequency after the dissolution of the corporation, and unincorporated firms or associations and also from the separation of individuals from the corporations, and unincorporated firms or associations. In these cases, adverse claims frequently are made for the mail.

While a corporation is in existance, if disagreements arise among corporate officers and others connected with the corporation, mail is delivered in accordance with the order of its president. So long as business is being conducted under the same name and at the same address, mail addressed to unincorporated firms or associations is delivered as addressed despite the fact some members of the firm or association may have left the firm or association. Problems arise when the corporation, or unincorporated finn or association is dissolved or when some members of the unincorporated firm or association break away from the firm or association. In a number of cases, no provision is made for the disposition of the mail incident to the dissolution or the breaking off of relations. If there is no agreement regarding the disposition of the mail, the Department delivers the mail in accordance with the intent of the sender if such intent is ascertainable. At times, such intent is not sufficiently ascertainable as to permit delivery. In such case the mail is undeliverable as addresses and is returned to the senders. The Department makes every effort to deliver the ma'il if possible becuase it is aware the mail can be a very important asset and is essential to a business.

The General Counsel's Office of the Post Office Department recommends and suggests that when preparing agreements and court orders pertaining to the dissolution of corporations, or unincorporated firms or associations, or changes in personnel in either corporations or unincorporated firms ororganizations. that attorneys include a specific provision for the delivery of the mail addressed to the former corporation, or to the unincorporated firm, association, or to persons who have severed relationships with the corporation or unincorporated firm or association.

Should a mail dispute thereafter arise, the Post Office Department will be guided by lhe provisions in the agreement or court order.

PIISIJ)llr~s

BIPOIT He went into military service in 1942, was commissioned in 1943 and served with the Judge Advocate General Corps until his retirement as a full Colonel on December 17, 1968. He has been admitted to practice before the Ohio State Supreme Court, The United States Court of Military Appeals, the United States District Court for SouUlern District of Ohio, and the Supreme Court of the United States.

by J. Gaston Willialllson

The Arkansas Bar Association suffered a grievous loss in the death of its Executive Director, LeRoy B. Gaston, on October 20, 1968. Mr. Gaston was employed as Executive Director of our Association in September, 1966. Although he was not an attorney and was without prior experience in Bar Association work, Mr. Gaston brought with him considerable experience in public information work and a sincere desire to further the work of our Association.

Consequently, the effectiveness of his work as our Executive Director grew steadily, until he was hospitalized in June, 1968 with what proved to be a long and painful terminal illness. This he knowingly bore with cheerfulness and great courage. Those of Our Association who were privileged to work closely with Mr. Gaston appreciated his deep interest in and dedicated work for our Association, and we will greally miss rum.

Following Ule death of Mr. Gaston, The Executive Committee authorized the appointment of a Personnel Committee, consisting of Robert Shults, Chairman, William S. Arnold, Bruce T. Bull.ion, Philip E. Dixon, Robert L. Jones and me, to find and recommend to the Executive Committee a new Executive Director for our Association. Applicants for the position were solicited through notices to our membership, to the National Association of Bar Executives, to the American Bar

Association and to the Judge Advocate General of the Army. A number of applications were received and the Personnel Committee spent a full day interviewing in person the most promising prospects. Thereafter, upon recommendation of the Personnel Committee, the Executive Committee employed Col. Clarence E. Ransick as our new Executive Director.

Col. Ransick, age 55 years and a native of Ohio, attended Xavier Unjversity and received his law degree from Salmon P. Chase Law School, in Cincinnati, Ohio, in 1937. From 1937 to 1942 he practiced law in Hamilton County, Ohio, specializing in real estale and probate law.

For two years prior to his retirement, Col. Ransick was Chief Judge of one of the highest appellate tribunals in the U. S. Army. From 1945 to 1966, he served as Chief Legal Advisor in seven major Army Commands, as Chief of the U. S. Anny Maritime Claims Service, and as a Commissioner on the Foreign Claims Commissions. In recognition of the superior quality of his work in these different capacities, he received the Army Commendalion Medal with Two Oak Leaf Clusters and the Legion of Merit with First Oak Leaf Cluster.

Col. Ransick was married in July, 1944, to Clarine Leonard, who had a B.A. in Music from Millikin University in Decatur, Illinois. Col. and Mrs. Ransick have six children-two daughters, ages 22 and 10 years, and foursons, ages 11, 12, 13, and 15 years.

The executive Commiltee feels lhat our Association is very fortunate in oblaining Col. Ransick as our new Executive Director. Not only does he bring to our work impressive credentials as an adminislrator, attorney and judge, but he brings to Arkansas an attractive family of eight new Razorback fans.

Col. Ransick assumed his new duties on January 8th.

His family will follow him in time for the school age children to begin the second semester in the Little Rock Public Schools.

I would be derelict if I did not publicly acknowledge the indebtedness of the Association to Mrs. Judith Gray, our Assistant Executive Director, and to Mrs. Barbara Ghormley, our Membership Secretary. Without Ule direction and assistance of Mr. Gaston since June of 1968, Mrs. Gray and Mrs. Ghormley have handled the work of the Bar Center in a very able manner. They have taken on additional responsibilities and longer hours of work WiUl cheerfulness and efficiency. Our Association has been fortunate indeed in having two such admirable employees during the past six critical months.

As I begin the second half of my term as President,l wish to thank each member of those committees of the Association who have worked hard at their committee's assigned tasks, and to remind the Chairmen of those committees with uncompleted assignments thal time is running out on their work for tltis Bar year.

3

MID-YEAR MEETING February 7-8, /969

PROGRAM Friday, February 7 B:30 a.m.

Registration -- Committee Meetings MORNING SESSION Forum Room, Marion Hotel Presiding - Richard A. Williams, Chairman, Committee on Continuing Legal Education 9:30 a.m.

The Revocable Trust First educational film produced by the American Bar Association. Text will be furnished and included in registration fee. A great work on use of revocable trusts.

PANEL: Byron M. Eiseman, Jr. Aubrey F. Williams Leonard L. Scutt J. Gaston Williamson MODERATOR: Richard A. Williams NOON SESSION Luncheon in the Ballroom, Marion Hotel Presiding - J. Gaston Williamson, President of the Arkansas Bar Association "Reorganization of the Arkansas Bar Association" Part I Advantages of Unification of the Bar SPEAKER: Joseph M. Culp" Ardmore, Okla.

Past President, Oklahoma Bar Association Forum Room, Marion Motel Presiding - J. L. Shaver, Chairman, Reorganization of the Bar Committee 1:15 p.m.

Part II. Proposed Reorganization of the Arkansas Bar SPEAKER: W. S. Mitchell Followed by a question and answer session from the audience directed to a panel consisting of: Dale Bumpers Joseph M. Culp John P. Gill Nathan Gordon FOR WIVES

4

Albert Graves David Solomon Henry Woods J. C. Deacon

AFTERNOON SESSION Seminar to be held for wives of lawyers at 3:00 p.m. in the Court Room, Marion Hotel. The role of the lawyer's wife in her husband's profession. Tips on handling problems and image projection.

SPEAKER: Griffin Smith

Forum, Room Marion Hotel Presiding - Jack Young, Co-Chairman, Mid-Year, Meeting 3:00 p.m.

The American Law of Zoning-Arkansas Style.

Updating of trends and practices in zoning.

S PEA K E R: Morton Gitelman

COFFEE BREAK Mechanic's Liens and Construction Mortgages.

Commentary on recent court decisions and business practices.

SPEAKER: E. Harley Cox 4:30 p.m.

Shopping Centers-A Different Concept in Leases.

New problems in Commercial leases.

SPEAKER: H. Maurice Mitchell 5:00 p.m.

ADJOURN OLDE WEST DINNER THEA TRE Broadway comedy Hit, "Never Too Late", starring Margaret Truman. Theatre reserved for the Bar Association; capacity of 350. Reserved tickets by advance registration on a first come, first serve basis. Price includes all beverages. Dinner begins at 6:30 p.m. at theatre, located at 6323 Asher Avenue (Southwest corner, Asher and University) in Little Rock.

3:45 p.m.

4:00 p.m.

Saturday, February 8 B:30 a.m.

Registration - Committee Meetings MORNING SESSION Forum Room, Marion Hotel Presiding - John P. Gill, Co-Chairman, Mid-Year Meetinq 9:00 a.m. Introduction to Admiralty & Admiralty Jurisdiction.

SPEAKER: E. D. Vickery 10:00 a.m. Jones Act Problems.

Explanation of Jones Act with practice and procedures as applied to admiralty cases.

SPEAKER: S. G. Kolius ADJOURN 11 :00 a.m.

SPECIAL ACTIVITI ES Wives Activities. Wives are particu larly invited to attend the seminar Friday afternoon at 3:00 p.m. The speaker's subject, "Laws for Lawyer's Wives", is well prepared and constructively entertaining.

Olde West Dinner Theatre. The dinner and entertainment at Olde West Dinner Theatre was chosen as the principal social activity in lieu of a hospitality hour or dinner-dance, as in the past. This part of the program should be attractive and well attended due to the presentation of the top Broadway play "Never Too Late" with a professional cast including Margaret Truman.

DATES TO REMEMBER

Due to the expected attendance and limited facilities, two tickets for each registrant may be reserved with the advance registration. Additional tickets may become available at the registration desk-inquire there during morning session.

COFFEE AND DONUTS There will be coffee and donuts in the East Room of the Marion Hotel each morning from 8:30 a.m. to 11 :30 a.m. for the use of the lawyers. This will also be a convenient meeting place for the wives.

Oil & Gas Institute April 17-18, 1969 Majestic Hotel, Hot Springs, Arkansas June 5-6, 1969 Annual Meeting Arlington Hotel, Hot Springs, Arkansas Fall Legal Institute Sept. 25-27, 1969 University of Arkansas, Fayettevi lie, Arkansas

MISSING AND UNKNOWN HEIRS LOCATED

Our Trust

NO EXPENSE TO THE ESTATE

Department extends full co-operation TO THE LEGAL PROFESSION • Teamwork th.l! insures a living plan for a family .llter the death of the breadwinner.

WORLD-WIDE SERViCE FOR

COURTS - LAWYERS - TRUST OFFICERS ADMINISTRATORS - EXECUTORS

TO ASSOCIATES • Collective thinking to create the optimum pro-

grilm for

~}roperty

m,lnagement.

TO BENEFICIARIES • Fin'lnci.ll rn,ln,lgernenl to plm Ide for the (,lll1lly wht>n lhe.he'ld of the ramily IS gone.

Pres: Thos. W.Stone

NA 04.5711

Vice Pres. & Trust Officer: John 8. Robbins Asst. V,P. & Trust Officer: Otis Fisher

AR/(ANSAS IfImST! NAT/ONAl BAN/( ...........A ".D.I.C.

American Arcl..ivej Ajjociation INTERNATIONAL PROBATE RESEARCH 449 WASHINGTON BUILDING

WASHINGTON, D.

c.

flot Sprin1!j. Arku'!8U6

5

An Experiment In Responsibility-Abolishing City Tort Immunity In The doctrine of sovereign immunity dates back to 1788 when an English court in the case of RusselJ v. Men of Devon, 100 Eng. Rep. 359, denied a lOrt claim against the county on the ground that "it is better an individual should sustain an injury than that the public should suffer an inconvenience."

AClually sovereign immunity was not involved because the county was unincorporated. Thus, the primary ground for the decision was that there was no fund from which a judgment could be satisfied. A Massachusetts case in 1812 (Mower v. Leicester, 9 Mass. 247) misapplied the Russell decision and held that an incorporated town was immune from tort liability. Since then the doctrine has been reaffirmed by the federal courts and by the courts of every slate, including Arkansas. Citing the Massachusetts Mower case in Gran路 ger v. Pulaski County. 26 Ark. 37 (1870). ,he A rkansas Supreme Court applied thc doctrine 10 a tori action brought against an Arkansas county.

Sincc that time, protection against liability l13s bcen extcnded lO cities and towns, school districts and even some quasi-public business corporations.

Today 'he United Stales is the only country in the western world which retains the doctrine of sovereign immu路 nity as a defense for governmental wTongs. England. the originalor of thc doctrine. abolished it over twenly years ago. Profcssors. judges. and attorneys have criticilcd and condemned the concept. For example. the doctrine has been ccnsured for being based on a theory that has long been obsolete, for placing thc burden of governmental

6

error on the private citizen, and for overplaying the danger of the "catastrophe judgment" with modem insurance coverage available. The most extensive and authoritative criticism of the doctrine came in the 1920's from Edwin M. Borchard. a Yale Law Professor (See 36 Yale L. J. I (1926). Professor Borchard, criticising the basis of the philosophy. said that "the maxim 'The King can do no wrong' was perverted from its historical meaning that he was not privileged to do wrong into the modern meaning that he was incapable of doing wrong".

The New Mexico Supreme Court emphasized this point in what is now a classic statement of the whole problem: The whole doctrine of governmental immunity from liability for tort rests UpOIl a rollen foundation. It is almost inr.:rediblc tllat in this age of comparative sociologil.;;ll enlightenment. and in a republic. the mcdicval absolutism 'iuppo'icd 10 be implicit in the maxim, 'Thl' Kin~ can do no '\rong" 'ihould c,cmpl the variou~ branche, of the ~o\'Cml1lent from liability for their torh and lhat the entire burden of dam;l~l' n:,ultin~ from the \\rongful aU' 01 the govl'rnment '\hould be impo,edupon the ,ing.h.' individuaJ who ,uITer. the injury. rather lIun di~lr" huted Jmong the entire community con,liluting the government.. "helC it ;;ould h;; borne \, lthout harJ'hip upon :.lny individual amI where it jU'itly bdon~". Baker v. Cit} of SantJ !-c, 136 P.!"" 480.

One of the first exemptions to the doctrine was taken in I 42 when New York made a distinction between "governmcntal" and "proprietary" functions and held a city liable for those functions that could be classified "proprietary".

Even though the classification of particular functions as governmental or pr~ prietary proved to be the subject of

much confusion and debate, the theory was adopted in a vast majority of the states, including Arkansas. (See Trammel v. Town of Russellville, 34 Ark. 105).

The majority of the courts still adhere to the theory that no maller how strongly the courts oppose the principle of sovereign immunity, any change must come through the legislative branch. Therefore, the greatest abroga tion of the doctrine has come through legislative enactments. Such statutes as the California Public Liability Act and the Wisconsin Safe Place Statute have made cities liable for injuries on public property. Today statutes in California, Connecticut, Illinois, Indiana, Michigan, New York, Ohio, Pennsylvania, South Carolina, and Wisconsin make municipal corporations liable for injuries caused by drivers of at least some of the municipal vehicles. In at least twenty-three states, statutes make municipal corporations liable for their failure to keep safe streets.

The second possible method of abrogating sovereign immunity is by judicial decision. Since 1957, when the Supreme Court of Florida abruptly held a city liable for a tort action, there have been nine other states which have reviewed and rejected the doctrine for political subdivisions and entitles. These courLs believe that since the doctrine was originally court-made it can now be court-abolished. The Arkansas Supreme Court recently adopted the modern approach in Parrish v. Pitts, 224 Ark. 1239, and thus destroyed the nolion for Arkansas cities that the "King can do no wrong". In holding that the City of Little Rock was liable for the negligent opera lion of a city garbage truck, the court said:

Arkansas Anything short of financial disaster however, is insurticient reason for exempting the cities from the rule of

tort liability. In any case, the solution of the financial problem by taxation or othcT\visc rests with the ICbtislativc branches of government, not the judi-

ciaL

Thus the court removed the shield but left the financial problem to the legislature. The decision did place a limit on the realm or liability by concluding: We would make plain that this decision imposes liability on municipalities only for the imperfect, negligent, unskillful execution of a thing ordained to be dOllC. No lort action wiIJ lie against them for those acts involvingjudgmcnt and discretion; which arc judicial and Ic!,,'islativc or quasi-judicial and quasilegislative in nature. The exercise of discretion necessarily carries with it the right to be wrong. It is only for ordinary torts committed in the execution of the activities decided upon that a tort action will lie: not for the decision itself.

As the Arkansas Court noted. the judiciary may tempcr the liability rule, but a comprehensive solution cannot be reached without appropriate legislative implementation. Only the legislature can provide for uniform adminstrative facilities and procedures, such as maximum amounts of recovery, the creation of a liability fund, or any other provision.

After judicial abolition of sovereign immunity in Minnesota and Oregon, the legislature in those states quickly en(Iclcd legislation making the city liable to the same extent as private individuals. but limiting the amount or recovery rather Ihan the kind of recovery. This approach might present a serious I;ollstitulional question in Ark路 ansas because Section 32 of Article V of the Arkansas Const itu tion provides:

Larry C. Wallace

No act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, .. "

Mich.igan and Utah have codiried the mllch criticized New York rule of giving immunity for governmental functions and imposing liability for proprietary functions. As already mentioned, the governmental-proprietary distinction is said to force the courts to decide on a case by case basis exactly which functions are governmental and which are proprietary. An Illinois act distinguishes between governmental units, providing immunity for certain govcmment entities such as park boards, forest preserve districts and counties. In California. the legislature passed an act which limited liability to certain governmental entities under specified conditions. Thus, in California there is no liability in the absence of a statute declaring such liability. For example, the statute does not mention the public entities liability for nuisance even though the California courts have previously held that public entities are subject to such liability.

One common design in all the statutes is a unirorm procedure ror riling claims against a city and a limitation of the time (usually one year) in which a suit may be filed. Most or the statutes exempt the cities from punitive or exemplary damages. They all protect the city and its employees from responsibility for tort in the performance of their duties if there is a degree of reasonable discretion involved in those duties. Among the other general exemJr liolls are losses caused by issuance or revocation of a license~ failure to make an inspection: institution of judicial or administrative proceedings; negligent or intentional misrepresentation by a government employee: consequences of

It is as much the duty of Govemment 10 render prompt justice agaiust itself iu favor of citizens as il is to administer the same between pn'vate individuals.

riots, unlawful assemblies and public demonstrations; collection and assessment of taxes; combatant activities of the National Guard; and workmen's compensation claims, On the other hand, the cities could be sued ror the following causes of action: injuries resulting rrom negligent operation or a motor vehicle by an employee or the city; injury arising from the maintenance of defective, unsafe and dangerous roads, highways, bridges, etc; and injuries arising from dangerous or defective public buildings.

The Parrish v. Pitts decision could have serious financial effects on an Arkansas city were it not for modern liability insurance coverage. It has the advantage of absorbing the "catastrophe judgments" and by the same token enabling the budget planner to keep the cost at a stable and manageable rate. A few months prior to the Parrish decision the Arkansas Municipal League surveyed 120 cities in Arkansas with populations or 1,000 or over. or the 74 cities that responded to the survey, 80% carried liability insurance on their vehicles and 40% carried liability insurance on other operations. It is difficult to estimate the cost of liability insurance based on any past experience because in the past, insurance policies were written and premiums quoted in such a way that the city received and paid for broad coverage even though the city wanted to cover only those functions for which it might be held liable.

Even though the Arkansas city was the first or the public entities to be exposed to tort liability, it is only a matter of time before other local governmental units will be faced with the problem.

The illvestigation and adjudication of claims in their nature belollg to the judicial departments.

Abraham Lincoln

7

Arkansas Bar

·=====A REMINDER===='1 I" the course of yOUf daily business con facts, with our advertisers, please remember to flote our ,1lJpreciarion 01 thelf continuin9 enthllsiasttc par ricipiJ(fOI1 III

THE ARKANSAS LAWYER ====.1

Arkansas Eminent Domain Digest Compiled by the University of Arkansas for the ArkanSc.'ls State Highway Commission.

207 PAGES $6.00

Arkansas Statutes Annotated 21 Volumes with Current Supplement $175.00 in the State of Arkansas.

*

WORKBOOK FOR ARKANSAS ESTATE PLANNERS MITCHELL D. MOORE' WILLIAM H. BOWEN

A Complete Som'ce f01' Planning Estates in Arkansas.

Planned exclusively (or Arkansas lawyers, it is based on the statutes. cases. regulations, and tax situations of the state. This workbook serves as a guide to drafting a simple will, testament.:·uy planning for benefit of minor or aged, forms of property ownership, purposes and techniques of making gifts. draCting partnership and business

purchase agreements and many other important topics.

The handy loose-leaf format makes this source a unique working tool-an invaluable reference for the Arkansas lawyer.

11 Chapters

$35.00

FEDERAL CODE A OTATED

43 Volumes,

JONES LEGAL FORMS

THREE VOLUMES' 68 CHAPTERS,

$395.00

$60.00

8

B

The Arkansas Bar Foundalion has completed the first phase of a program for the construction of a new Bar Cenler facing a public park, all of which will be alop several levels of underground parking in downtown Lillie Rock. The Bar Foundation conveyed the South Half of the block fronting on Markham and between Spring and Conway Streets to the Little Rock Housing Authority on December 27, 1968. Prior to the conveyance, the Housing Authority had revised its development plans so the property can be used for underground parking with the surface being dedicated as a public park. The Bar Foundation has acquired the WhistleVess Bottling Company building on the Northeast corner of the block, and the Foundation has an option to purchase the old American Legion property located on the orthwest corner.

On October I I, 1968 the City of Lillie Rock signed a S 13,000 contract for the preparation of a preliminary design of the proposed underground parking garage. The parking garage, which is to house 475 automobiles, is to be financed by a bond issue. The Little Rock City Manager Board instructed the City Staff on December 16 to develop a plan for the pledging of municipal funds to guarantee payment of the bonds. No lime table has been established for the commencement of construction.

PARAGON

BOBBS-MERRILL

has been printing

BRIEFS

Mr. Joshua E. McHughes 4623 West 11th Street Lillie Rock. Ark. 72204

~

Report

Printing & Stationary Co.

Contact Your Babbs-Merrill Arkansas Representative.

THE

Foundation

COMPANY, INC.

A SUBSIDIARY OF HOWARD W. SAMS & CO .• INC. 4300 WEST 62nd STREET. INDIANAPOLIS, INDIANA 46268

for over 35 years.

May we be or service to you?

FR 5-1281 311 East Capitol Little Rock

[I[~~~~~

1~[E~[ill~

~~ rooovoo~OO~~[~ ~~~~~v~w~ ~~~~~~ ~ro~~~

J. Winston Bryant J. Winston Bryant graduated from the University of Arkansas Law School. He formerly served as Counsel for Arkallsas Illsurallce Department and Assistant U. S. Auomey ill Lillie Rock. He is preselltly Legislative Assistallt to Sellator Johll McClellan

I. INTRODUCTION Because of the spiraling rate of injuries and deaths caused by accidents upon the nation's highways there has been a concerted effort of many individuals and interested organizations to force the automobile manufacturers 10 put more emphasis upon the safety aspects of design of automobiles. Public concern mounted to such an extent that the National Traffic and Motor Vehicle Safety Act I was unanimously passed by Congress in 1966. In general the Act directs the Secretary of Transportation to establish federal minimum safety standards for the performance of aU motor vehicles manufactured for use on

public highways. The act requires aU manufacturers of motor vehicles and equipment to maintain records, make reports, and to provide information to the Secretary of Transportation. The Secretary is also empowered to inspect the appropriate books and make investigations in the factories and warehouses (0 enforce safety standards. In addition Congress also passed a related bill, the Highway Safety Act 2 which requires each state to set up federally approved highway safety programs by December 31, 1968, or face ti,e penalty of losing 10 percent of their federal路aid highway construction funds. As enacted, the aforementioned acts were designed to cover all phases of ti,e traffic safety problem by providing methods (0 im路 prove the performance of the vehicle, tire, driver and the road.

Although the congressional action3 has set up minimum safety design standards and leaders in the automobile industry have acknowledged that the industry owes a greater duty in design of cars than it has thus far undertaken,4 numerous writers have stated that very ~ttle has been accomplished in forcing the automobile industry to strive for design features of sufficient magnitude that would enhance safety and save lives. S Indeed, according to a recent news article in the Wall Street Journal6 the automobile industry has forgotten about design safety in 1969 in favor of the perennial goddess-profit. Blame for the lack of interest for design safety on the part of the automobile industry has been laid upon the courts7 although the courts in recent years have expanded, somewhat, the automobile manufacturer's liability in vehicle design 8 Legal writers have consistently stated Ihat the duty imposed on the manufacturer has been too narrow 9 but a recent case, Larson v. General Motors Corp. IOde.' cided March 1968, indicates that the courts in the future may broaden the duty of the manufacturer in the design of automobiles.

II. HISTO RY A t the outset, it is essential that a distinction between automobile construction and automobile design be recognized. I I Courts sometimes have confused the distinction 12 but it is highly important. Since the decision in McPearson v. Buick 13 courts have consistently held a manufacturer liable for losses caused by negligent construction of a product 14 and in recent years some courts have made the automobile manufacturers strictly liable for defects in construction. 15 On the other hand, liability for defective automobile design has rarely been imposed upon the manufacturer, although in 1927 a feder路 al court recognized a duty in car design by stating "its (manufacturer's) duty was to use reasonable care in employing designs, selecting materials, making assemblies, in the construction of a tractor, which would fairly meet any emergency of use which could reasonably be anticipated." 16 Although the duty of the manufacturer in automotive design was recognized decades ago, the courts have in most cases passed the responsibility off to the legislature because of policy considerations,17 reasoning that if safety standards are to be imposed, it is a legislative function and not a judicial interpretation of existing law.J8

III. MANUFACTURERS DUTY IN NEGLIGENT DESIGN CASES The Second Restatement of Torts reads: "A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufacturcd is subject to Uability to others whom he should cxpect to use the chattcl or would be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design. 19 Continued on page 16

9

•

•

•

• r

Stair

101

Judge's Otc, CI.

Jury R oom~. ."",,,,",,,~,,,_~

7

Ig

•

~ tJrnQ Sec.

G);

e

•

• 1 I

~~

"7

flB! 0 f\ Libra'rY

~D

~f\J

•

•

I(j1

,

f

Stair

JudQe'. Otc. 2

0

t-f;

0

~ec, C CI.

2

[1~

•

~I

nO

Corridor [J

boliff

o

•

IU

o

•

Witneu2

CI.

Public

Lobby

EI,v. Lobby

•

• Unusual Courtrooms Designed By

Renshaw And Taylor, Architects 10

• A

new courthouse with circular

courtrooms, designed by Renshaw and Taylor, orlh Lillie Rock architects, is under construction in Hamburg. Arkansas, for Ashley County. Completion is scheduled in March of 1969.

According to William S. Arnold, president of the Arkansas Bar Association and chairman of the Special Committee appointed by the County Judge to plan the courthouse, "The new design helps to eradicate the conception of a courtroom as a theatre with a

•

•

•

•

•

• performance bjing conducted for the benefit of the sr eta tors."

Courtney R . shaw, AlA, said their design would "pcmlit witnesses to be seen and heard by everyone, all parties would be able to see exhibits without having to move, the judge is situated where he can s,e and hear all proceedings, and the public seating is held to 50 instead of the us u a I 200 to keep sessions of the court from being theatrical performances." Courtney Renshaw and Joe B. Taylor's offices are located

in the Lakewood House in North lillie Rock.

A similar courtroom is located in Tacoma. Washington. The basic physical purpose of a courtroom is to give the judge, both batteries of lawyers, the jury and the witnesses on the stand an unobstructed view of each other and an opportunity 10 hear normal speech clearly.

These requirements sound simple, but, a Judge George I-I. Boldt of the Southern Division. Western District of

WashinglOn puts it: "There is hardly a courtroom anywhere where this is possible. Either the judge sees only the back of the neck of the witness, or one group of counsel is off in left field, or the jury box is so arranged lhat it's very difficult for jurors to see all other trial participants and exhibit boards."

Renshaw and Taylor have licked this problem with their design now under construction by Simmons and Sons of Warren, Arkansas.

11

With The Original

120 Volt

Model EKP 1882

These Features Make Outdoor Cooking Easy, Sure, Safe Anyone can be a "Master Host" with this beautiful 120 volt model. Approximately 320 square inches of cooking area on the giant 14~" x 22" main cooking grid, plus an additional 200 square inches of cooking

area using the cook-more grid. With the 9" of cooking height you can cook a l4-lb. turkey or a 15/20-lb roast. You can feed 20 hungry people while they admire the beautiful genuine porcelain finish of this deluxe Electric Portable Kitchen.

ooks Better Because It Rotates The Weat t\Jot The

....:M~ea=t"=".. ::::--~ 12

CLEAN - No messy charcoal, no ashes to dump, because it uses ceramic briquets.

SAFE - No name or fire, no hazardous fuels. It's matchless. Built for outdoor usc in all kinds of weather. Just plug it into a 120 volt outlet and it's ready in a few minutes.

EASY - Thermostatic temperature control eliminates cooking guesswork. Just select proper temperature. Set the ther1110stat, join the gang, and forget it!

SURE - No rotisserie necessary. The rotating reflected heat eliminates charred edges, reduces shrinkage, ends basting and constant watching. Anyone can be a Master Chef.

DURABLE - It's aluminum and made for outdoor usage. Built to last a lifetime. Unconditionally guaranteed for one year.

Dealer Inquiries Invited Write or call Portable Kitchens Division of Hamlin Products, Inc., P. O. Box 3703, Little Rock, Ark., 72203. Phone FRanklin 4-0296.

Colonel C.E. Ransick Named Executive Director of the Arkansas Bar Association

largest Trust Department in South Arkansas

NATIONAL BANK 01'

EL

DORADO

here, list your ten best clients Colonel C. E. Ransick has been named Executive Director of the Arkansas Bar Association. The appointment was announced by J. Gaston Williamson, President of (he Association.

LAW BOOKS THOMAS LAW BOOK COMPANY PUBLISHERS AND DEALERS IN LAW BOOKS Since 1885

WE BUY ... WE SELL ...

WE EXCHANGE 1909 WASHINGTON AVENUEMAin '路2236 - ST. LOUIS. MO. 63103 LET US KNOW YOUR WANTS

1.

6.

2.

7.

3.

8.

4.

9.

5.

10.

you've just listed your ten best reasons for having immediate access to V.S.C.A. Much of their everyday activity is governed by federal law. That's why many lawyers check both state and federal law as a matter of routine. They've found it very rewarding for their clients. Isn't that a good reason for you, too, to have U.S.C.A.? Write:

WEST PUBLISHING COMPANY. 50 Kellogg Blvd.. St. Paul. Minn.

55102 13

Arkansas Supreme Court Justice Serves 0n Freedoms Foundation Awards Jury Associate Justice John A. Fogleman, Arkansas State Supreme Court, devoted five days, Dec. 2 through Dec. 6, viewing numerous motion pictures, written expressions, community and school projects, news media material and programs, leiters from Armed Forces personnel, in search for awardees of recipients of 1968 National and School Awards by Freedoms Foundation at Valley Forge, Pa. Justice Fogleman served on the 43-member Freedoms Foundation Awards Jury composed of 14 state supreme court justices and 29 executive officers of national patriotic, veterans and service organizations.

The Awards Jury was under the co-chairmanship of Dr. Porter Fortune, president of University of ~'Iississippi and Dr. John A. Howard, president of Rockford College, Illinois.

Selected awardees in the 20th annual Freedoms Foundation Awards Program will be cited for "outstanding contributions toward a better understanding and appreciation of the American Way of Life."

14

JURIS DICTUM

by C. R. Huie Executive Secretary, Judicial Department

That Arkansas circuit judges and chancellors are keenly interested in continuing judicial education was evidenced by the excellent attendance of Arkansas judges al the Judicial Conference held at the Coachman's Inn in Little Rock on Thursday, November 21, 22, and 23. Ove r 30 Arkansas judges were in attendance and participated in seminar sessions extending for two and one-half days.

The program, sponsored by the Slate Judicial Council of Arkansas, composed of all Arkansas circuit judges, chancellors, and Supreme Court justices, the National College of State Trial Judges, the Arkansas Bar Association, and the University of Arkansas School of Law, consisted of live seminar sessions each divided into two divisions, one for chancellors and one for circuit judges.

After the call 10 order by Circuit Judge Bobby Steel, Presidenl of the Judicial CounCil, Chief Justice Carleton Harris made the welcoming address. Colonel James Johnson, a former Arkansan and now Associate Dean of the National College of State Trial Judges and a member of the Arkansas Bar Association, then introduced the visiting outof-state judges who were:' Judge Ben F. Overton, Circuit Judge of the Sixth Judicial Circuit of Florida; Judge John F. Onion, Jr., a judge of the Court of Criminal Appeals of Texas; Judge Richard A. Kenyon, Superior Court Judge of Gainesville, Georgia; and Judge William L. Dickson of Portland, Oregon.

The first seminar session for chancellors covered the subject of "Domestic

Relations". Judge Ernie Wright of Harrison presided. Discussion leaders were Judges Richard Mobley of Russellville, Royce Weisenberger of Hope, and James

Merritt of McGehee. The reporter was Robert J. Brown of Little Rock.

At the same time, circuit judges discussed "Special Problems in the Judicial Function". Judge Wm. H. Arnold [II presided over this session and the discussion was led by Judge Richard Kenyon. The reporter was John Selig of Liltle Rock.

During the luncheon which was presided over by Justice Lyle Brown, Chairman of the Executive Committee of Ihe Judicial Council, the group heard an address by Colonel Johnson who discussed recent developments in judicial reform, and the remarkable growth and effectiveness of the National College of Stale Trial Judges.

At the second seminar session, Judge Murray Reed, Vice President of the State Judicial Council, presided over the meeting of the chancellors who discussed "Special Problems in the Judicial Function". Judge Kenyon was the discussion leader and the reporter, John Selig. At the same time the circuit judges were considering new developments in criminal law in a session presided over by Judge Charles Light.

Judge Onion was the discussion leader and the reporter was Robert J. Brown.

At the third seminar session, the chancellors visited the Slate Hospital and conferred with Dr. George Jackson and his staff with reference to procedures and treatment of patients suffering from alcholism and mental illness.

Judge Royce Weisenberger presided over this session and the reporter was John Lile of Little Rock. Judge TOIll Digby of Little Rock presided over the circuil judges who discussed the "Proposed Jury Wheel" in a session led by Judge Charles Light. The reporter was Robert B. Cabe of lillie Rock.

During luncheon, the group heard Dale Bumpers of Charleston, representing the Arkansas Bar Association, make a very fine address on "How To Solo in a Town of 1,353 Souls". Mr. Bumpers was introduced by Circuit Judge Warren Wood of Little Rock.

At the fourth seminar session Friday aftemoon, presided over by Judge James Merritt, the chancellors discussed Probate Administration. Discussion leader was Judge Will. L. Dickson and the reporter was Don Schrupper of Hot Springs. The circuit judges discussed Inherent Powers of the Courts. Discussion leader was Judge Ben F. Overton, Judge Melvin Mayfield of EI Dorado presided, and Ihe reporter was John Lile of Li Ille Rock.

On Friday evening the judges and their wives attended a banquet at which President Bobby Steel presided. Justice Ed F. McFaddin made the principle address and was introduced by Justice Paul Ward.

The fifth and last session was held Salurday morning November 23, at which the chancellors discussed Inherent Powers of the Courts. Judge Overton led the discussion and Don Schnipper was reporter. The circuit judges discussed Arkansas Model Jury Instructions in a session presided over by President Bobby Steel. Discussion leaders were: Judge Paul Wolfe of Fort Smith, Henry Woods, Winslow Drummond, Dale Price and Phillip Carroll, all of Little Rock.

The reporter was Robert D. Cabe.

At the conclusion of the fifth session, the reporters presented summaries of the seminar. Prior to adjournment the judges in attendance voted unanimously to make the conference an annual affair.

Expenses of out-of-state judges and speakers were borne by the National College of State Trial Judges.

15

EMERGING TRENDS Continued from page 9

The Restatement reOects the holdings of most of the reported cases decided in the last decade. Huwever, the courts have held that the Restatement does not mean that the manufacturer must construct a fire-proof car20 nor does it mean that the manufacturer is under a

duty to make his automobile accidentproof or fool-proor. 21 Heretofore, the duty of the manufacturer is probably

best stated as one to design its automobiles to be reasonably fit for the purpose for which it was made without hiding defects which would make it dangerous to persons using it. 22 For the most part the courts in applying the above-stated duty of the manufacturer have limited that duty by use of language which is so narrow or constrictive that it has been almost impossible for plaintiffs to recover.

IV. LIMITATIONS UPON THE MANUFACTURERS DUTY A. Privity At Olle time privity of contract was a requirement the courts recognized

which prevented an injured party, not a participant to the origina.l contract, with the manufacturer, from recovering in a products liability case)3 Privity has now been eliminated in almost every jurisdiction and now a third party can recover from the manufacturer although he was not a party to ule original contract with the manufacturer. 24 B. Second Collision Courts are in general agreement that the manufacturer is liable for negligent design that is the prox..imate cause of an accident. 25 However, the courts are hesitant to impose liability upon the manufacturer in instances of a "Second Collision," i.e., where the injuries that resulted were eit her caused or aggravated by some error in design rather than the defective design precipitating the accidenl. 26 A recent case, Evans vs. General Motors Corporation,27 brings the problem into foeus: Plaintifrs husband was killed when another automobile struck the side of his station wagon. Plaintiff brought suit against the manufacturer alleging lhat the station wagon was designcd with an "X" frame which did not have side frame raUs to protect a driver involved in side impact collisions, thus causing the collapse of the car's side upon lhe driver. The Federal District Court dismissed the complaint and the Court of Appeals affirmed,

A Fflend/y Bank to Do Busl/Jess With.

PERSONAL LOANS AGRICULTURAL LOANS TRUST & ESTATES BANK and FINANCING GENERAL BUSINESS INSTALLMENT FINANCING

JA 3-3601

MERCHANTS & PLANTERS BANK SECONO AT HAZEL NEWPORT, ARKANSAS-7211Z

16

holding that there is no duty on the part of a manufacturer to construct automobiles in which it would be safe to collide. The court stated at page 855: "The intended purposc of an automobile docs not include its participation in collisions with other objects, despite the manufacturer's ability to foresee the possibility that such colJjsions may occur. As defendant argues, the defendanl also knows that its automobiles may be driven into bodies of water. but it is not suggested that defendant has a duty to equip them whh pontoons."

The Evans decision received very unfavorable comment from legal writers:28 however, it still seems to epitomize the prevailing law in most jurisdictions throughout the country. The Evans case may have been somewha t of an advance in broadening the duty of the manufacturer since the court admitted that the manufacturer could foresee the possibility that collisions may occur.

Judge Kiley wrote a vigorous dissent in the Evans decision in which he stated that it was his view that the manufacturer's duty was to usc such care in designing its automobiles that reasonable protcction is given to occupants against injuries from accidents which are foreseeable yet unavoidable. 29 The Evans case seems to be followed by the Second Circuit in the case of Mull v. Ford Motor Company.3 0 This case involved a negligent action for personal injury sustained by plaintiff when he was struck by a taxicab manufactured by the defendant. The district court for the southern district of New York directed a verdicl for the defendant and the Second Court of Appeals affirmed holding that under I ew York law, a manufacturer could not be held liable for injuries sustained by a pedestrian struck by a taxjcab because it was not foreseeable that once the hood of the taxi had popped up that the driver would blindly continue to "buck" the taxi toward the curb using the accelerator and starter. The court Slated "This (driver's actions) is not within the risk reasonable to be perceived by the defendant Ford.... " The case of Schemel v. General Motors Corporation 3l in the Seventh Circuit action involved personal injury sustained by plaintiff when the automobile in which he was riding was struck in the rear by an automobile manufactured by the defendant, and being driven at the speed of approximately 115 mph.

The district. court sustained the defendant's motion to dismiss for failure to state a c1ail1lupon which relief would be granted and the Court of Appeals Conlinued on page 18

by Dr. Robert Wright Our "News of the Law School" is a bit sparse for this issue. The students arc hard at work (they wish us to believe) for final examinations which are coming up shortly after tltis is being written.

The faculty have been engaged in intetviewing prospects for new leachjng positions for next fall. New faculty will be added at both Fayetteville and Little Rock.

Student elections to Law Review positions lOok place shortly before Christmas. The new Editor-in-Chief for the Spring Semester is Steve Reasoner.

The Managing Editor is Jack Gordon.

Jim Clark is Case Editor; David Kirk is Note Editor: and Jim Cooper is the new Business Manager.

Kirby Smith has been elected the new Cltief Justice of Garland Chapter of Phi Alpha Delta Law Fraternity.

A Law Sorority for female law Sludents, Kappa Beta Pi, has been installed at both divisions of the Law School. The Fayetteville chapter consists of Sharon MiJler, PreSident; Esther White, Vice President; Ann Henry, Cor-

responding Secretary; Karen Gulley, Secretary; and Jackie Wright, Treasurer.

The Little Rock chapter initiated Ruth Brunson, Mary A. Allen, Alice F. Dickson,

Thelma

M.

Lorenzo,

Evelyn

Rhodes and Frances Rudko.

The University Moot Courl team recently participated in the National Moot COUrl Competition, being elimi-

nated in a real "squeaker" in the regionaJ contest.

In news of the faculty, Professor Frederic K. Spies continues to hit lhe institute trail. Earlier, we reported his participation in a program on the use of computers in clinical medicine at Niagara Falls, which was sponsored by the State University of New York School of Medicine. On December 7, he made a similar presentation at the annual meeting of the American Association of Medical Record Librarians. On April 24,

he will be the featured speaker at the annual meeting of the American College Health Association, discussing computers and privacy, including special problems created by the statlls of patients who are students.

At the recent Association of American Law Schools meeting in New Orleans, Professor Spies was appointed Chairman of the Special Committee on Law and Medicine by the new President, Dean Willjam Lockhart of Minnesota.

Fred also won the special, coveted New Orleans Seafood Consumption Award (measured il/ gross tOl/nage), topping by several barrels the previous record (which he also held).

Professor Jerome F. Leavell addressed the Dallas and Tarrant County (Dallas-Fort Worth) TriaJ Lawyers Association' on December 7, on recent developments in products liability law in the Southwest. He also conducted a panel discussion there on the subject of negligent entrustment. This was part of the Melvin Belli Foundation Seminar, other paneljsts were Melvin Belli, F. Lee Bailey and Lou Ashe. Mr. Belli also spoke informally to a group of lillie Rock lawyers at a breakfast at the Sam Peck Hotel in Little Rock on November 4, which was sponsored by Professor Leavell.

Professor Ray Guzman of Fayelleville has been working with the University's Department of Architecture in designing a model prison and prison grounds for the State Prison system in cooperation with the Department of Corrections. This project would have to be implemented by an appropriation from the legislature if such a prison were to be constructed. However, it is the hope of Professor Guzman and his associates in Arcltitecture to prOVide drawings, commentary and data as a basis for such possible future construction.

spending a great deal of time in Lillie Rock because of his position as a delegate to the State Constitutional Convention. Professor Leflar's new book American Conflicts Law, which is a revision of his former publications in the field, was published in late 1968 by Bobbs-Merrill, and has already been recognized by a number of others in the field as the pre-eminent work of its kind.

A program on Securities Regulation was presented at the University of Arkansas Law School in Fayetteville a few weeks ago, with Professor T. James McDonough of the Fayetteville faculty having primary responsibility for the program. Professor McDonough worked with State Securities Commissioner Don Smitll and Professor Robert Brockmann, our CLE Director, on the program, which was attended by a substantiaJ number of Arkansas lawyers and otJlers interested in the securities field.

Professor Raymond Parnas, faculty advisor to the Law Review, recently published an article in the Wisconsin Law Review, has another article coming out shortly in the Indiana Law Journal, and has the UI/iversity of Chicago Law Rel/iew interested in a third article.

(You call write one for us too, Ray; we're /lot 100 particular.) Similarly.

Professor William Lancaster has recently completed an article for the Virginia Law Review.

On February 7, Professor Robert R. Wright wiU address a conference at the University of Alabama on the use of airspace over transportation rights of way. (Although tempted to begillwith a commentary on the superiority of Southwest Conference football, I have decided to "scratch" that portiO/l of the talk in the interest of hannony and good will. The record speaks for itself) Professor Arthur Murphey of the Little Rock faculty was recently appointed to the Governor's Insurance Study Commission, headed by Chairman Ike Teague of Litlle Rock.

The course in Conflict of Laws will be taught at the Little Rock Division during lhe Spring Semester by Professor Robert A. LeOar, who of course, will be 17

EMERGING TRENDS Continued from page 16

afrirmed holding that there is no liability where the alleged design defects of an automobile cause it to erupt into flames upon impact. The court stated that no duty exists to make an automobile fireproof and the court relied on the Evans case stating that the manufacturer's duty is to design an automobile

which will not present a fire hazard during its normal, intended operation and not one in which there is a duty to design an auto incapable of causing injury through foreseeable misuse for a purpose for which the auto was never supplied.

In the case of General Motors Corporation v. Muncy.J2 the Fifth Curcuit Court of Appeals refused to impose

Shumard v. General Motors Corporation,33 and Schneider v. Chrysler Motor Corporation 34 are othcr recent cases decided in 1967 from the District Courts of Ohio and ebraska, respectively, which seem to follow the Evans case.

As indicated by the Evans case and other cited decisions, the courts, for the most part, continue to have a narrow concept of the defendant manufacturers' liability in negligcnt design cases and hence the courts generally will not allow recovery unless the defective design presents a foreseeable risk to persons using the car for which it was intended. As indicated in these decisions. the reasoning gencrally is that the wreck or collision of the automobile is abnormal use; therefore. damages for negligent design are not recoverable.

liability upon the manufacturer of an automobile where an alleged design defect (as claimed by the plaintiffs) caused the accelcralOr to stick after which the car leaped the curb and struck the plaintiff. The court held that there was no evidence of probative value

proving negligent design to sustain a fact finding against the dcfendcnl manufacturers by the District Court and to render judgment in favor of plaintiff.

V. LARSON CASE Although most jurisdictions are following the Evans decision. a major breakthrough for plaintiffs in automobile defective design cases has recelllly occurred in Eighth Circuit in the case of Larson v. General MOlars Corporation.35 Action was brought against an a utoillobile manufacturer for injury allegedly resulting frolll design. although

the alleged defect did not cause the injury. The District Court rendered summary judgment for the manufacturer and the plaint it!" appealed. The Eighth Circuit Court of Appeals reversed the decision of the District Court and stated: "Where Ihc manuf:Jcturer'~ negligence in design callSe~ an u tlTeasonable risk 10 be imposed upon Ihe uscr of ils products. Ihe manufaclurer <;hould be liable for Ihe injUry caused by its failurc 10 cxerci ..e reasonable carc in thc design. Thc~c injuries arc readily for"ceablc as an incident to the nom,al and expeclcd lise of an automobile.

While automobiles ar~ not made for the purpose of colliding with cach other. a frequent and inevitable contino gency of normal automobile use will re'mlt in collisions and injury·produeing impacls. ~o rational basis cxists for Iimiling rccovery to situations \\ here Ihe defect in design or manufactu re was th'e causativc factor of the accident. as the accident and thc resulting injury. usually caused by the ~Q--(:alled '~econd collision' of Ihe pas"cnger wilh Ihe inlerior part or the aUlomobile all are foreseeablc. Whcre the injuric", or enhanced injuries, arc due to the l11anllfaclurer'~ failure 10 lI,e rca,onable car~ 10 avoid ,ubjecting the uscr of il" product~ 10 an unreasonable risk of injury. general negligence principle", should be applicable, "36

to err is human...

THAT'S WHY

every practicing attorney needs the protection of LAWYERS' PROFESSIONAL LIABILITY INSURANCE!

Your layman client depends completely on your judicious and competent legal advice. A client is not inclined to simply overlook a "human error," An act, error or omission on your part could prove costly.

THE PROTECTION YOU NEED••• Professional Liability policy coven you or any named insured for your own acts or the acts of associates or employees for legal liability which may arise while performing professional services for your clients.

ARKANSAS BAR ASSOCIATION LAWYERS PROFESSIONAL LIABILITY ANNUAL RATE SCHEDULE 5500 DEDUCTIBLE 25,000/75,000

100,000/300,000

INSURED LAWYER

$49.

555.

$60.

EMPLOYED LAWYER

522.

524.

526.

For Application or Quotation Contact

RATHER, BEYER & HARPER ADMINISTRATORS 223 Louisiana St.

18

50,000/150,000

Little Rock, Arkansas

FR 2-4117

The Court further stated: "Collisions with or without fault of the uscr are clearly forseeable by the manufacturer and are statistically inevitable:'37

In addition. the Court in the Larson case stated that the normal risk of driving must be borne by the vehicle user, but that failure to use reasonable care in design, or knowledge of defective design, gives rise to reasonable duty on the part of the manufacLUrer to warn of the condition, and thal duty includes duty to inspect and to test the product. 38 Finally, the Court deferred the issue of whether the manufacl.Urer should be held strictly liable for negligent design to the legislature, stating that such was a policy consideration.39 Some cases prior to Larson allowed recoveries in instances where the plaintiff claimed defective design of an automobile aggravated an injury. See Carpini v. Pittsburg Weirton Bus Col.40 and Ford Motor Co. v. lohn. 41 However, many courts explain these cases away by stating that the products involved were unfit for their intended use and in that respect were the cause of the accidental lnjuries. 42

VI. CONCLUSION: Courts have increasingly liberalized the required scope of foreseeable risk imposed upon a manufacturer in all products liability cases,43 bUI heretofore this liberalization has not extended to automobile manufacturers except in certain isolated cases. 44 The Larson case if followed should bring the auto· mobile industry into the fold. As the Court in the Larson case stated, negligence and products liability principles should serve the needs of our society until the legislature imposes higher standards or the courts expand the doctrine of strict liability.45 This case should provide a basis from which courts other than the Eighth Circuit can abandon the old concepts in negligent design cases and pu t a duty upon the automobile manufacturer that is more commensurate with a responsibility that the manufacturer should have in our present-day world in which the automobile plays such a vital and omnipresent role.

sL'ek all possible w::ays in which the buill-in protection for car occupants can be improved." Hearings on the Federal Role in Traffic Snfcty Before the Subcommittee on Executive Reorganization of the Senate Committee of Government Operations, 89th Congress, 1st Session pt. 2, at 667 (1956).

Larson v. General Motors Corporation 39 I F2d 495 (8th Cir. 1968).

5 Nader. Automobile Design and the Judicial Process, 55 Cal. L. Rev. 645 (1967); Katz, Liability of Automobile Manufacturers for Unsafe Design of Passenger Cars, 69 Harv.

L. Rev. 863 (1955-1956); 1966 Utah L. Rev. 698 (1966); 52 Iowa L. Rev. 953 (1967); 80 Harv. L. Rev 688 (1967) Nader, Automobile Design: Evidence Catching Up with the Law, 42 Den. L.C.1- 32 (1956).

6 Charles B. Camp in Selling With Speed. the Wall Street Journal, Oct 31, 1968, p. I, stated: "The Auto industry's horsepower roce is on again-with a vengeance." The article quoted a vice president of General Motors as saying "If you want to sell cars today, you have to show the younger generation something that impresses them."

7 Nader, Automobile Design and the Judicial Process, 55 Cal. L. Rev. 645 (1967); Katz, Liability of Automobile Manufacturers for Unsafe Design of Passenger Cars. 69 Harv.

L. Rev. 863 (1955-1956).

8 C&rpini v. Pittsburgh and Weirton Bus ~ 216 F. 2d 404 (3rd Cir. 1954); Ford Motor Company v. Zahn, 265 F. 2d 729l"'8"t'h Cir. 1959).

9 See note 5,'!!!'p'!'!':'" 10391 F. 2d 495 (8th Ci.r. 1968).

II "Product construction is the nctual building of the automobile. It involves the fabrication and assembly of the component parts. Product design determines the size, shape, identity, and arrangement of the component parts and is the plan for their fabrication and assembly." 52 Iowa Law Rev. 953,954 (1967).

12 Carter V. Yardley, 319 Mass. 92,64 N.E. 2d 693 (1946), 52 Iowa L. Rev. 953, 954 (1967).

13 217 N.Y. 382, III N.E. 1050 (1916).

14 Samahq V Southern Rambler SaJes. !!!b.. 146 S. 2d 29, (La. Ct. App. 1962); Nonhero v. General Motors Corp., 2 Utah 2d 9, 268 P 2d 981 (1954); Larson v. General Motors Corp., 391 F 2d 495 (8th Cir. 1968).

15 Vandermark v. Ford Motor Co., 6 1 Cal. 2d 256, 391 P 2d 168 (1964); Henningsen v.

Bloomfield Motors. Inc., 32 N.J: 358, t61 A

2d 69. (1960); Processer, The Fall of the Citadel Strict Liability to the Consumer). 50 inn. L. ev. 791 1966; 52 Iowa L. Rev. 953 (1967).

16 Davlin v. Henry Ford & Son. 20 F. 2d 3t 7 (6th Cir. 1927).

17 Evans v. Genllral Motors Corp .• 359 F 2d 822 (7th Cir. 1966).

18 Ibid.

I 9~statement (Second) Torts § 398 (196S).

20 Shumard v. General Motor Corp., 270 F. SuPP. 31 I (S.D. Ohio, E.O. 1967).

21 Campo v. Scofield. 301 N.Y. 468. 95 N.E. 2d 802 (1950).

22 Evans v. General Motors Corp., 359 F. 2 (7th Cir. 1966).

23 Products Liability. Frumer & Friedman,§16.03 (I); 52 Iowa L. Rev. 953, 959 ( 1967).

24 Jaeger, Privity of Warranty: Has the Tocsin Sounded? I Duquesne L. Rev. I (1963).

25 Larson v. General Motors Corp., 391 F. 2d 495,500 (8th Cir. 1968).

26 Ibid.

27 359 F. 2d 822 (7th Cir. 1966).

28 Nader, Automobile Design and the Judicial Process, 55 Cal. L. Rev 645 (1967); 69 Harv, L. Rev. 863 (1955-1956); 1966 Utah L. Rev. 698 (1966); 52 Iowa L. Rev. 953 (1967) 80 Harv. L. Rev. 688 (1967); 29 359 F. 2d 822, 827 (7th Cll'. 1966).

30368 F. 2d 713 (2nd Cir. 1966).

31 384 F. 2d 802 (7th Cir. 1967).

32 367 F. 2d 493 (5th 1966).

33 270 F. Supp. 311 (S.D. Ohio, E.D. 1967).

34266 F. Supp 115 (D.C. Neb. 1961).

35 39t F. 2d 495 (8th Cir. 1968).

36 I bid. p. 502.

37 Ibid.

38 Ibid p. 50S. 39 I bid p. 506.

40216 F. 2d 404 (3rd Cir. 1954).

41 265 F. 2d 729 (8th Cir. 1959).

42 Evans v. General Motors Corp., 359 F. 2d 822, 825 (1966).

43 Schemel v. General Motors Corp .. 384 F. 2d 802 Dissenting Opimon p. 804 (7th Cir. 1967).

44 Carpini v. Pittsburgh and Weirton Dus Co., 216 F. 2d 404 (3 Cir. 1954); Ford Motor Co" v. Zaho, 265 F. 2d 1'29 (8th Cir. 1959).

5 Larson v. General Motors Corp•• 391 F. 2d 495,506 (8th Clr. 1968).

FOOTNOTES 180 Stat 718 (1966); IS U.S.C.A.§1381 et seq.

2 80 Stat 736 (1966); 23 U.S.C.A.§105 et seq.

3 See notes I and 2. supra.

4 The president of GMC has stated: "Automobile manufacturers must continue to

Open 6 nights each week-Doors open 6,30 p.m .. Dinner 7:00 to 8:00.

Showtime 8:30, Tues. through Sat.-Sunday one hour earlier-Sat. Matinee Coffee, Ice and Soft Drinks are provided withoul charge.

...

•

• • , I

19

BROMSTAD ABSTRACTORS And

Services

HEART OF THE OZARKS REALTY COMPANY Col. C. C. King, Owner Mrs. Fanta L. Mackie, Abstractor Issuing Agent for Chicago Title Insurance Co. AlJSTRACTS~REALESTATE-INSURANCE Member of American and Arkansas Land Title Asso.

Area Code SOl-Telephone, 253-8612 26 Spring Street Eureka Springs, Ark. 72632

Directory

Ben. H. White M. J. White

BEACH ABSTRACT & GUARANTY CO.

WH ITE ABSTRACT AND REALTY COo. INC.

REPRESENTING:

ABSTRACTS-TITLE INSURANCEESCROWS-REAL ESTATE Member of American and Arkansas Land Title Asso.

Phone: JA 3-3611 Newport 520 Third Street

COMMERCIAL STANDARD TITLE INS. CO. ABSTRACTS-ESCROWS-TITLE INSURANCE 213 W. 2nd St.-Little Rock, Ark.-F R6-3301

Gerald Cathy-Kenneth Jones

STANDARD TITLE COMPANY

NATIONAL ABSTRACT COMPANY

Representing Standard Title Insurance Co. Abstracts-Title I nsurance-Escorws And Loan Closing Member of American And Arkansas Land Title Association 216 Lou,ian. P_O_ Box 1876 Ph_ FR 2-1857 Little Rock, Ark.

Lois M. Howard, Owner TITLE INSURANCE ABSTRACTS ESCROWS Member of American and Arkansas Land Title Asso.

Representing: Lawyers Title I nsurance Corporation 209 Exchange 51. Telephone, 623-1671 HOT SPRINGS. ARKANSAS 71901

BERRYVILLE ABSTRACT & TITLE COMPANY Beulah M. Osgood, Licensed Asbtractor Representing Commercial Standard Title Insurance Co. Member of American and Arkansas Land Title Asso.

PHOTOCOPY SERVICE TITLE SERVICE Room 204, Courthouse Berryville Phone, 424-2535

CHICAGO TITLE INSURANCE COMPANY

J, T. Bain R. E. Buck J. 0, Reeves

WASHINGTON COUNTY ABSTRACT AND TITLE COo. INC. Bonded Abstractors-Title Insurance Member of American and Arkansas Land Title Assc.

Agent for American Title I nsurance Company Ph, PL 1-2183 and PL 1-4943-Springdale 135 E. Emma Avenue-P. O. Box 475

Over 50 Years of Service

FAULKNER COUNTY ABSTRACT COMPANY

Symbol 0[:

266,Sarah McHenry-Elizabeth McHenry Robert M. McHenry-Rosemary McHenry ABSTRACTS-FIRE & CASUALITY INSURANCE INVESTMENTS Bring Your Title Troubles To Us. 1312 Oak St_-FA 9-263 I-Conway

SERVICE - STRENGTH - SECURITY State Aljent,

POL YGRAPH (LIE DETECTOR) EXAMINATIONS

LITTLE ROCK ABSTRACT COMPANY

Verity integrity - of witnesses - delectlon and prevention of theh - fraud - pre-employment screeming lEGA L-BA N K-BUSIN ESS-PE RSONA L Member'American POlygraph Association Approved and licensed by the State of Arkansas H. G. KELLEY, General Manager

214 Louisiana Street

Little Rock, Arkansas (501) FR 5-4477

NATIONAL INVESTIGATION BUREAU 1016 Fair Park Blvd. - MO 6路2866- lillie Rock, Ark.

20

Court Reporter Hunter G. Woody 5203 Halifax Dr. LO 2·3335 Little Rock, Ark.

Half your case IS a

WELL PRINTED

Cou rt Reporter

DEAN C. LEASURE Official U. S. Court Reporter Stenotype Reporting-Notary Public FR 2·1414-P. O.Box 2435 Little Rock, Arkansas

and

I

Arkansas Depositions & General Reporting

I

iI

PREPARED BRIEF

Court Reporter William Poston Bowen 217 W. 15th St. FR 2·3170 Little Rock, Ark.

FOR SALE 196 7 Dictaphone Equipment-3 Dictating units; 3 transcribing units.

All have been kept under mainte-

nance contract. Call FR6·3021 Lit· tie Rock, or write: McMath, Leatherman, Woods & Yougdahl 711 West Third St, Little Rock, Ark. 72201

STATE & FEDERAL BRIEFS ATTORNEY TIME·SERVICES RECORDING SYSTEM

Accurate, speedy timekeeping and

billing. Simplified indexing, no posting, at-a-glance reminder of type of service rendered. EOM ease for secretary. Free brochure. Time

Saving Co. 308 Shell Bldg. Houston, Texas 77002

Charles I. Rea, Owner THE LAWYERS' PRINTER

PlJale6-t;t'/Ie~ </bjean().a(). f1J1t 143-4322

q

A GREAT NEW CONCEPT IN OUTDOOR ELEGANCE All-Aluminum

=:=.- .

......:;;:l'."~~~JJi:d~~~~tt::;;.:L __

--:.i

MonArk Model 1340

Fast maintenance路 free ... superbly comfort路 able here's a great new concept in houseboat elegance, and it's available in five totally new MonArk models. They're all aluminum ... from high-speed hulls to spacious sun decks.

MonArk, an acknowledged master in marine aluminum design, manufactures 60', 50' and 40' conventional hull houseboats, plus 36' and 28' pontoon models_ All are designed to endure rough water with ease.

For prices and a colorful free catalog, fill out and return coupon below. Try something new in outdoor elegance ... move up in style with an all-new houseboat by MonArk!

. MonArk Boat Company Dept. ALI Monticello, Arkansas 71655 : : : :

Please rush MonArk's houseboat price list and free catalog to: Name _ Address _

: City

State

Zip_

Also manufacturers of a complete line of aluminum sport-fishing boats, pickup campers and travel trailers.