JACK MORGAN CONSTRUCTION COMPANY, INC. v. Larkan

John A. Fogleman, Justice,

dissenting. I dissent, largely because of the views I expressed in Neal v. O liver, 246 Ark. 377, 438 S.W. 2d 313. Since a statutory construction was involved in that case, I would normally abandon the position I took there. This case, however, demonstrates additional reasons why the holding in Neal v. Oliver is wrong, and points to the need for legislative definition of “third party” in Ark. Stat. Ann. § 81-1340 (Repl. 1960). In that case, the basic negligence was in the assignment of the injured worker to the use of a machine on which the employer had not installed a safety bar. The president of the corporation there was granted the privilege of piercing his own corporate veil to seek refuge from an action against him as a third party, by permitting him to call himself the employer. In this case, however, Larkan was alleged to have been in active charge of the work and actually supervising and directing the operation during which Harris suffered his fatal injuries. But the most glaring manifestation that something is wrong is that Larkan is judicially licensed to run a virtual shell game, utilizing his self-manufactured corporate veil. When both contribution and indemnity are sought in the same lawsuit, Larkan is the corporation when the victim of the game points to contribution, but is a different entity when he chooses indemnity. This result is unnecessary. The corporate entity cannot be disregarded for one advantage and claimed for an inconsistent advantage. 1 Fletcher, Cyclopedia Corporations 182, § 41.2 (1963 rev. vol.). No more gross example of inconsistency could be found than Larkan’s simultaneous contentions that he and the corporation are both separate and identical entities. I would reverse the summary judgment.