These are eases consolidated for the purposes of trial, brought separately in the second division of the Pulaski Circuit Court by appellants against the Arkansas State Highway Commission to recover from it for damages on account of personal injuries received by the several appellants on account of the alleged negligence of the employees of appellee while engaged in repairing certain State highways. The action sounded in tort.
Demurrers were filed to the several complaints on the ground that appellee was and is not liable in damages for the negligence of its employees.
The court sustained the demurrers to the several complaints and dismissed same, from which is this appeal.
This court ruled in the case of Highway Commission v. Dodge, 181 Ark. 540, 26 S. W. (2d) 879, that highway contractors might maintain actions against the State Highway Commission for the amount due under their highway construction contracts. The ruling was based upon the construction of the statute creating the commission. The majority of the court interpreted the statute as authorizing the institution and maintenance of that class or character of suits. It was not ruled in that case that suits sounding in tort might be instituted and maintained against the Arkansas State Highway Commission, as that act created no such authority. After a careful examination. of the statute creating the commission, a majority of the court find no authority therein for the institution and maintenance of suits for torts against said commission. It is the opinion of a majority of the court that the Arkansas State Highway Commission cannot be sued for damages resulting from the negligence of its employees when engaged in the construction or repair of State highways. The writer and Mr. Justice Mehaeey do not concur in this view, but agree with the Chief Justice on this point in his dissenting opinion.
The judgment is therefore affirmed.