*1 599 no sovereign recovery defense immunity resulting taxes spite right collected in to have the collection them enjoined. There is for the these taxes authority practice placing v. 483 Trucking Gray, escrow. American Associations U.S. 1306 agree
We with the chancellor’s decision which preserves tax proceeds for state the event it should prevail yet preserves them for ATA if the result reached. opposite
Affirmed.
Hays, J., concurs. Hays, Justice, I not concurring. do
Steele agree have appellees “strong demonstrated likelihood of success on merits,” Gilliam, that the law Munson v. 543 F.2d requires. (8th 1976). However, Cir. agree I do that an escrow the use and decal highway taxes is an for the appropriate step, present, given the unique history litigation. of this On that basis alone I concur.
ARKANSAS BANK & v. Harold TRUST COMPANY
ERWIN, Judge Supreme Court of Arkansas Opinion delivered December
[Rehearing January denied 1990.*] grant rehearing. *Hickman participating. Turner, would J., *2 Barrett, Deacon, Phelps, John V. Smith & Wheatley, for by: appellant. Bristow, A.; Burris, Throesch;
Bill and John W. P. David appellee. Glaze, writ of
Tom This petition Justice. case concerns Co., alleging & Trust filed the Arkansas Bank prohibition a law suit does not have Randolph County Circuit Court Smith, Darrell filed the Bank Kenneth by plaintiffs estate and Tommie administratrix Alphin Alphin, venue is proper William deceased. We hold that Alphin, writ of Randolph County deny request prohibition. having
The Bank’s in this matter arose from involvement J. D. guardian been of the estate of Burchette appointed mentally incompe- November when Burchette was found tent. accident In Burchette was involved an automobile death, his the death of Montgomery County, which caused own William David Kenneth injuries Alphin Alphin Smith. vehicle centerline of Apparently, Burchette’s crossed the automobile highway, causing head-on collision with the accident, containing the and Smith. the time of Alphins At thus, and Smith were residents of Alphins Randolph County; under Ark. Code Ann. 16-60-112(a) William Aiphin’s *3 estate, Darrell to and Smith chose file suit Alphin against Burchette’s estate in their home That Randolph. lawsuit in against resulted a default judgment Burchette’s estate $1,574,368. the amount The Bank not a was to that party suit.
Apparently the were plaintiffs unable to recover of their any judgment against estate, Burchette’s so filed they this second suit against the Bank. This suit two causes of action against bank, the one for negligent entrustment and one for breach of fiduciary The plaintiffs again suit in duty.1 brought County because contend their they negligent entrustment action is one for personal injury and and wrongful 16-60-112(a) death § allows them fix to venue in their resident The Bank county. responds stating that the real character of the second plaintiffs’ entrustment, suit is not one of negligent but instead questions only the manner in which the Bank and its trust func- department tioned in its as See relationship guardian of Burchette’s estate. Atkins Pickle Co. v. Burrough-Uerling-Brasuell Consulting Engineers, Ark. It further that explains the automobile accident was an collateral entirely matter which the Bank did not As participate. a consequence, the Bank asserts any it be Ark. must filed under While the Bank disagree conclusory entrustment. because that the plaintiffs argues complaint only brought plaintiffs individually that suit stated a cause individually fact plaintiffs brought and as action for breach of the cause brought assignees the suit of Burchette’s fiduciary as for assignees duty, estate. we statute, venue Code Ann. 16-60-104 corporation only which and office principal fixes venue where the situated —Garland on our Atkins Pickle decision heavily
The Bank relies asserts local the rule that when a both complaint adopted action, determined by and causes of the venue is transitory action, or by real of the its purpose object, character principal Pickle, In Atkins right being plaintiff asserted. principal contract brought Pope Atkins Pickle a suit breach of that were or resided in other County, against defendants situated counties, was Arkansas and the suit dismissed improper venue. In a further effort to establish a local action action, Atkins refiled its Pope subsequently Pickle County, allege adding to to language original complaint purporting again to real The trial court injury property in Pope County. venue, dismissed and we Atkins Pickle’s complaint improper that, allegations affirmed. This court held even under the new Atkins could establish its complaint, right Pickle recover contract defendants’ failure except by proving a and the perform their The court concluded that promises. physical damage from the was to land resulted defendants’ breach one several merely was incidental consequences not the basis for Atkins Pickle’s cause of action. *4 here, com-
Contrary argument Bank’s the plaintiffs’ plaint alleges entrustment as a tort claim clearly negligent against the Bank and an merely is not action incidental to plaintiffs’ claim from the resulting breach it owed Burchette’s estate. entrustment fiduciary duty Negligent has been defined as follows:
One who or supplies a third directly through person chattel for the or use of another whom the knows supplier has reason to be of know to because his likely youth, otherwise, involving or to use a manner inexperience, it in unreasonable risk or harm to himself and others physical whom the in or endan- supplier expect should to share be use, gered harm to by subject liability physical resulting to them. (Second) (1965).
Restatement Torts cases, Arkansas, Entrustment ones in certainly Woods, have involved See generally generally, automobiles. Negligent Entrustment: Evaluation Overlooked Frequently of Source Additional Ark. L. Rev. 101 Liability, While entrustment cases involve a who in usually supplier some manner entrusts the directly automobile such incompetent, negligent entrustment can also arise when the incompetent, automobile, Id.; instead of being given the funds it. given buy McMahon, Bugle v. 193 (1942). 35 N.Y.S.2d Generally, elements following are an entrustment case: necessary
(1) Proof the entrustee was incompetent, inexperi- reckless; or enced
(2) the or entrustor knew had reason to know of the entrustee’s condition or proclivities; chattel;
(3) there was an entrustment of the (4) the entrustment created an appreciable risk of harm to the plaintiff a relational on duty part defendant; and
(5) the harm to the was plaintiff or proximately caused legally by the negligence defendant. Here, plaintiffs, of their support theory entrustment, alleged following:
(a) J. D. Burchette was incompetent reason of insanity reaction; caused by schizophrenic
(b) That Arkansas Bank & knew Trust Company its ward’s condition and proclivities;
(c) That Arkansas &Bank Trust allowed Company its ward to said vehicle and in fact to do so without insurance;
(d) That the aforesaid entrustment and operation said vehicle without an insurance created risk appreciable of harm to the public general and these plaintiffs *5 particular and a on correlational duty part guardian; defendant and
(e) That the harm the herein was plaintiffs proxi- Burchette driving of J. D. mately caused negligent Trust Bank & of defendant Arkansas negligence and said D. Burchette to allowing in J. Company vehicle without vehicle to operate and further said insurance. a complaint included their
Although plaintiffs based on a count set out another cause action second common law and imposed by statutory breach of duties fiduciary law, also tort cause of action they alleged clearly separate in their theory, entrustment as entrustment.2 Plaintiffs’ and on depend rests on its own facts and law does complaint, estate. whether the breached its duties Burchette’s Bank entrustment, is which wrong Because as alleged, venue, in the under injuries resulted death or of the plaintiffs, 16-60-112(a), because that Randolph County is proper is where the lived the time of injury. at plaintiffs
Our is in with this decision in holding court’s keeping Colvin, City Forrest Works 257 Ark. Machine v. injury S.W.2d 206 where we held that if the personal 16-60-112(a)) venue statute is with the venue (§ inconsistent 16-60-104), it (§ statute to domestic pertains corporations insofar as or death injury inconsistent actions personal caused act are and that case the by wrongful concerned statute personal injury applies. above,
For the writ reasons stated of prohibition denied.
Hickman, dissent. Purtle Justice, John I. Purtle, dissenting. majority opinion venue of improperly places this cause Instead, This case is not about accident. it an automobile an concerns assignment management judgment bank, the trust no department of a which has County Garland other base of allegation service is operation. Lip paid If, however, oc- negligent entrustment. negligent entrustment contained question No motion in that regarding count. severance was made whether the trial court had venue regarding the second as count, to the cause of we do not reach *6 all, Not even the County. curred at it occurred in Garland initial was based judgment automobile accident upon Therefore, I see no basis whatso- occurred ever for establishing county. venue
This is an method on of ingenious respondent’s part of native Garland and into getting County out petitioner is interesting environment of It friendly Randolph County. note Had original that the bank was not named complaint. time, the bank been named at that we can be sure that at least the earlier; motion present would have been made If had prohibition denied, been the bank would at least been able to come in have and fight the case on its merits.
Regardless
called,
of what an
it should be viewed for
what it
is. We had this
Farm
really
deciding
mind in
principle
Southall,
Bureau Mutual Ins. Co. Arkansas v.
281 Ark.
of
incompetent. another Perhaps was the party guardian person. The only allegations in the complaint concerning acts the bank were conclusory charges “negligent entrustment” and the bank’s allowing the ward “to said automobile . . . without insurance. . . .” there should be Surely specific acts of negligence recited if this is a Mere negligence case. conclusions are never sufficient to state a cause of action. I
Although have nothing against demonstrating lawyers initiative by novel fashioning theories for I do feel that recovery, such theories should be buttressed with allegations specific facts which would support judgment. It contrary statutes and our prior decisions to allow this of action to be type maintained in Randolph County. of choice now. This decision
Venue is a matter apparently shopping. will no forum encourage expansion doubt this dissent. joins Hickman *7 v. STATE of Arkansas CAMPBELL Rondal CR Court of Arkansas
Supreme 11, 1989 delivered December Opinion [Rehearing January denied 1990.*] grant rehearing. participating. *Hickman J., would Turner,