Page:Parish v. Pitts, 244 Ark. 1239 (1968).pdf/17

Rh G R S, Justice, concurring. I join in Special Justice Moorhead's opinion, but I should like to add a word in reply to the dissentient suggestion that our statute adopting the common law of England exempted that body of rules from judicial modification, leaving the power of repeal in the legislature alone. If that were true we would be absolutely bound to follow an English precedent announced 300 years ago, no matter how wrong we thought it to be, if no later case on the point could be found. The practical point of view, and I think the right one, is that when we adopted the English common law there was included in that heritage the fundamental common law rule that a court can and should overrule an erroneous judicial decision when it can be done without injustice to past or future litigants. That is all the court is doing today.

C H, Chief Justice, dissenting. I have no quarrel with the basie premise set out in the majority opinion, i. e., that from the standpoint of right and wrong, it is just as right for a person who is hurt by the negligence of a city and its employees to obtain damages for the injury, as it is for those persons who are injured by the negligence of private individuals or corporations. But I think there are compelling reasons why the doctrine of governmental immunity should not be changed by this court.

Of course, this immunity was a part of the common law when this state was admitted to the Union. The very first section that appears in our Arkansas statutes (numbering 20 volumes), Ark. Stat. Ann. § 1-101 (Repl. 1956), provides that the common law of England, of a general nature, and not inconsistent with the constitution and laws of this nation, or this state, "shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state. [My emphasis.]" Actually, as is pointed out in Horsley v. Hilburn, 44 Ark. 458 (1884), while Arkansas was still a part of the Missouri Territory, this statute (in