Opinion
Howell, Prices&sTrice, P.A. and Steve Festinger, Little Rock, for appellant.
Ronald W. Metcalf, P.A., Fort Smith, for appellee.
SUPPLEMENTAL OPINION ON REHEARING
GEORGE ROSE SMITH, Justice.
In a rehearing petition appellant argues that the controlling distinction between misfeasance and nonfeasance was waived by the appellee because it was not specifically argued in Bluegrass's appellate brief. The point, however, is that the distinction is not a matter of defense, subject to waiver. It goes to the existence of the plaintiff's cause of action. Hence even if the case were tried and the plaintiff introduced all the evidence that was before the trial court on the motion for a summary judgment, the necessary outcome would be a directed verdict for the defendant.
An effort is also made now to show that Bluegrass's officers actively delegated responsibility to Hays Chapel and its employees, but the proof is lacking. In fact, appellant argued to the contrary in her original brief, relying specifically upon a witness's statement by deposition that "Bluegrass was totally distinct from Hays Chapel and had nothing to do with the operation of the mine." Although one of its officers was in Arkansas to negotiate leases or contracts, there is no proof that Bluegrass had any part in the operation of the mine.
Rehearing denied.