author: Ed. F. McFaddin, Associate Justice.

text:
    Davis v. Southern Farm Bureau Casualty Insurance Co.
    5-1918
    330 S. W. 2d 276
    Opinion delivered November 16, 1959.
    [Rehearing denied January 18, 1960]

      8. L. Richardson, for appellant.

      James A. Robb and Robert H. Dudley, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question on this appeal is whether the plaintiff’s complaint, to-' gether with the two amendments, stated a cause of action. The Trial Court sustained the defendant’s demurrer and dismissed the cause when the plaintiff refused to plead further; and plaintiff has appealed. We will refer to the parties either by name, or as they were styled in the Trial Court.

The original complaint (filed August 2, 1958) alleged: that plaintiff, Ed. Davis, had a traffic mishap with another car owned by Bud Williams and both cars were damaged; that plaintiff’s car was damaged $150.00 and Williams’ car was damaged $205.86; that plaintiff had no insurance of any kind, but that Williams had both public liability insurance and also insurance against collision damage (subject to $50.00 deduction) in the defendant, Southern Farm Bureau Casualty Insurance Company (hereinafter called “defendant”).

The original complaint further alleged: that the defendant caused the Arkansas State Revenue Department to give notice to the plaintiff that plaintiff’s driving license would be revoked unless the plaintiff either (a) made cash deposit sufficient to cover the amount of damage, (b) gave bond to cover the damages, or (c) obtained a release from Williams; that plaintiff was financially unable to comply with either requirement (a) or (b), so plaintiff approached Williams and proposed the execution of mutual releases in compliance with Item (c) above; that Williams consulted the defendant as his insurance carrier, and “. . . the defendant willfully, maliciously, and intentionally, wrongfully interfered and persuaded, and forbade the said Williams from executing the promised release as aforesaid, and by reason thereof the said Bud Williams would not carry through and execute such release, and thereafter, . . . plaintiff’s licenses aforesaid were revoked for such time until said revocation was withdrawn, which has not been done, . . . ”

The original complaint further alleged that when Williams, on the advice of the defendant, refused to execute the release to Davis, the State revoked plaintiff’s (Davis’) driving license to plaintiff’s damage in the sum of $400.00; and “That by reason of the defendant’s said conduct, interference, persuasion, and forbidding, wilfully, maliciously, and intentionally so done, wrongfully causing the said Bud Williams not to execute the release, all as aforesaid, in clear violation of plaintiff’s right under the law, resulting in the revocation of his said licenses and in his actual damage as aforesaid, defendant is liable unto the plaintiff for punitive damages in the sum of $5,000.00 in addition to actual damages; . .

Plaintiff’s first amendment to the complaint (filed September 20, 1958), alleged:

“That under the terms of said contract of insurance between defendant and the said Bud Williams, the defendant was subrogated to all the rights of the said Bud Williams, and it was the duty of the said insured, in the event a claim was made against the insured, covered by said insurance contract, to assist defendant in every manner in connection with said claim, and defendant would pay in settlement of such claim such sum as was agreed upon, if such agreement was reached, within the limits of said contract, and if a suit was brought on said action the defendant would defend same and would pay any judgment recovered thereon, within the limits of said contract; and, further, said contract provided that it was cancellable by either party at will upon giving five days notice of said cancellation, and said insured desired to keep said contract in force, and defendant was in a position to, and therefore did, in the manner and for the purpose and intent as aforesaid, cause said insured to refuse to execute said release, all as aforesaid.”

Plaintiff’s second amendment to the complaint (filed November 19, 1958) alleged:

“That on the 17th day of November, 1958, in Action No. 2621 in this Court between the said Bud Williams, as plaintiff, against the plaintiff herein, as defendant (Case No. 2621), wherein this plaintiff cross-complained and asked for damages to his automobile against Doyne Williams -who was driving the said Williams car at the time of the collision, a trial of the issues were had by jury in which the verdict of the jury was that both the said Doyne Williams and this plaintiff were equally negligent and the jury allowed no recovery for either side in said Case No. 2621; . . .”

As aforesaid, the Trial Court sustained the defendant’s demurrer and dismissed the complaint; and on this appeal learned counsel for both sides have favored us with briefs which show tremendous study. We have concluded that the Trial Court was correct in its ruling.

I. Williams Had The Absolute Bight To Refuse To Execute Any Release To Davis. When Davis asked Williams to execute a release and Williams refused, Davis had no cause of action against Williams, even if such refusal had been prompted by malice. This is true because a person has an absolute right to refuse to contract. There was no contract relation between Davis and Williams : Davis was merely proposing to Williams the execution of a contract; that is, a release or agreement not to sue. In Cooley on Torts, Fourth Edition, Yol. 2 § 224, the holdings are summarized in this language:

“It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern.”

In Harding v. Ohio Casualty Ins. Company, 230 Minn. 327, 41 N. W. 2d 818, the plaintiff sued the insurance company for withdrawing as a surety on his fidelity bond and the Minnesota court, in holding that the insurance company could withdraw, used this language:

“. . . some rights are absolute in nature and may be exercised by a person acting singly without regard to his motive, even where it is malicious in the sense that it is done solely to cause harm to a third person. Of this sort, is the right to enter into contractual relations with another or to refuse to do so. Hundley v. Louisville & NR. Co., 105 Ky. 162, 48 S. W. 429, 63 L. R. A. 289, 88 Am. St. Rep. 298; H. D. Watts Co. v. American Bond & Mtg. Co. Inc., 267 Mass. 541, 166 N. E. 713, 84 A. L. R. 12; McMaster v. Ford Motor Co., 122 S. C. 244, 115 S. E. 244, 29 A. L. R. 230; 30 Am. Jur., Interference, § 39.”

In McMaster v. Ford Motor Co., 122 S. C. 244, 115 S. E. 244, 29 A. L. R. 230, the Supreme Court of South Carolina used this language:

“But in refusing to deal with him they violated no legal right of his, since they owed him no such duty. The fundamental conception of a contract is that it is an agreement, and that implies mutual consent. Therefore the law allows one to determine for himself with whom he will contract; hence one may refuse to contract with another, or to buy or sell his goods, without incurring liability for resulting damage, even though his refusal be prompted by the intent to injure the other. Cooley, Torts, 278.”

In H. D. Watts Co. v. American Bond & Mortg. Co., 267 Mass. 541, 166 N. E. 713, 84 A. L. R. 12, the Supreme Judicial Court of Massachusetts used this language:

“A party not under contract with another has a right to refuse to enter into contractual relations with him, no matter what his motive for such refusal may be. ‘Every man has a right to determine what branch of business he will pursue, and to make his own contracts with whom he pleases and on the best terms he can. . . . He may refuse to deal with any man or class of men’.”

We are not here dealing with an interference bringing about the breach of a contract: we are dealing here with the refusal to contract. So it is clear that Williams had the absolute right to refuse to execute any release to Davis and would not have been liable, even if in so refusing Williams had acted with malice.

II. The Defendant Insurance Company Was Subrogated To All The Rights Of Williams. We have heretofore copied a portion of the first amendment to the complaint, which alleged: “That under the terms of said contract of insurance between defendant and the said Bud Williams, the defendant was subrogated to all the rights of the said Bud Williams, . . . ” The original complaint alleged that Williams carried collision insurance with defendant, so this allegation in the first amendment, when given its fair understanding, meant that the defendant had paid its obligations for the repair of Williams’ car and, therefore, was “subrogated to all the rights of the said Bud Williams”. The rule is well recognized that the person subrogated to the rights of another has all the rights of the original party. In 50 Am. Jur. page 752, “Subrogation” § 110, the holdings are summarized in this language:

‘ ‘ Subrogation contemplates full substitution and places the party subrogated in the shoes of the creditor. Generally speaking, the party subrogated acquires all the rights, securities, and remedies which the creditor has against the debtor who is primarily liable, . . . A subrogee, as just stated, occupies the position of the party for whom he is substituted, and succeeds to the same but no greater rights.”

And in § 111 of the same article the text reads:

“Thus, the rule is well settled in fire insurance as well as in marine insurance that the insurer, upon paying to the assured the amount of a loss on the property insured, is subrogated in a corresponding amount to the assured’s right of action against any other person responsible for the loss.”

The application of the quoted texts is exemplified in some of our cases. In Boone County Bank v. Byrum, 68 Ark. 71, 56 S. W. 532, the tax collector had deposited in a bank a portion of the taxes collected by him; and the bank, with notice of the trust, appropriated the money to the payment of the individual indebtedness of the collector. The sureties on the collector’s bond, who paid the State the amount misappropriated by the collector, were held entitled to be subrogated to the rights of the State as against the bank. In Myers Bros. Drug Co. v. Davis, 68 Ark. 112, 56 S. W. 788, judgment was recovered against the constable and the sureties on his bond for wrongful seizure and sale of property under process ; and the judgment was paid by the sureties. The constable died insolvent, and the sureties were held to be subrogated to the rights of the constable to sue on the note given for the purchase price of the property sold under process. In Carroll County Bank v. Rhodes, 69 Ark. 43, 63 S. W. 68, the sureties on a collector’s bond who paid the State the amount of money misappropriated by the collector were held subrogated to the State’s right of recourse against the party knowingly receiving the misappropriated money.

The defendant, Southern Farm Bureau Casualty Insurance Company, as a paid surety, was entitled to the same right of subrogation as were the sureties in the adjudicated cases. So the defendant insurance company, subrogated to all the rights of Williams, could with impunity refuse to contract with Davis, just as Williams could. In short, the refusal of the defendant insurance company to allow its insured (Williams) to contract with Davis was a right of refusal to contract which gave Davis no cause of action against Williams or the defendant insurance company as Williams ’ subrogee.

Affirmed.

       This notice was given pursuant to Act No. 347 of 1953, known as the “Motor-Vehicle Safety Responsibility Act”, which may be found in § 75-1401 et seq. Ark. Stats. Particular attention is called to: § 75-1418 requiring report of accident; § 75-1424 on security following accident; and § 75-1425 on amount of security required.

       In Blashfield’s Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 6 § 4181, the text reads: “While subrogation, strictly speaking, can logically arise only after a payment by the insurer of the claim for injury to or loss of the automobile, still an additional and supplementary rule exists, even where the policy expressly mentions subrogation and provides for its effectuation by assignment of the insured’s claim against the wrongdoer to the insurer upon or after payment by the latter, that any payment as damages received by the insured from the wrongdoer before settlement with the insurer, reduces by operation of law the liability of the insurer pro tanto, and where the insured releases his right of action against the wrongdoer before settlement with the insurer, that release destroys, by operation of law, his right of action on the policy.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Green v. Green.
    5-1959
    329 S. W. 2d 411
    Opinion delivered November 16, 1959.
    [Rehearing- denied December 21, 1959]

      Paul K. Roberts, for appellant.

      James A. Ross, for appellee.
   George Rose Smith, J.

The principal question in this case is whether the plaintiff-appellee Lula Bell Green is barred by limitations or laches from foreclosing a mortgage executed in 1929 by the appellee Morton Green, who is now Lula Bell’s husband. The chancellor held that the cause of action is not barred and accordingly entered a decree of foreclosure. The appellants, defendants below, are the personal representative and heirs of Addie Bell Green, a sister of Morton’s, who held the record title to the mortgaged land at the time of her death in 1957.

This is the chronological sequence of events: In 1929 Morton Green, then unmarried, mortgaged forty acres to Trotter & Sons to secure a $300 note. Morton and Lula Bell were married a few months later. In 1930 Morton and Lula Bell executed a second mortgage to Morton’s sister, Addie Bell Green, to secure a debt of $130. The second mortgage does not appear to have been paid, but it was long ago barred by limitations and is not a factor in the case.

From 1929 through 1942 Morton made two or three small payments upon the Trotter note in every year except one. On September 19, 1934, the Trotters endorsed on the margin of the record a notation that a payment of $48.40 had been made on November 16, 1933. The next marginal endorsement by the Trotters was made on May 17, 1939, and recited a payment of $4.89 on October 10, 1938.

On January 7, 1935, Addie Bell sent her brother a letter in which she said that the Trotters were about to foreclose and had told her that they would do so unless Morton deeded the land to Addie Bell, so that she could raise money to pay off the Trotters ’ mortgage. With this letter Addie Bell enclosed a quitclaim deed the Trotters had prepared. Five days later Morton and his wife signed the deed to Addie Bell, and the title remained in her name until she died in 1957. The appellants argue that Addie Bell’s letter to her brother is rendered inadmissible by the dead man’s statute, but the point was decided adversely to their contention in Josephs v. Briant? 115 Ark. 538, 172 S. W. 1002, Ann. Cas. 1916E, 741, as, testimony that a letter was received does not involve a personal transaction with the decedent.

Addie Bell is not shown to have made any effort to refinance or discharge the debt to the Trotters. In 1943 Morton’s wife Lula Bell paid the Trotters in full and took an assignment of the note and mortgage. Thereafter Lula Bell kept the mortgage ostensibly alive by endorsing part payments on the margin of the record at about four year intervals. She and Morton both testified that Morton actually made the part payments, Lula Bell having been advised to follow that course to keep the mortgage in force. After Addie Bell’s death in 1957 Lula Bell brought this suit for foreclosure. The decree in her favor is an in rem judgment against the land, no personal judgment against Addie B'elFs estate having been asked.

In insisting that the debt is barred by the statute of limitations the appellants rely upon the fact that more than five years elapsed between the date of the payment that was made on November 16, 1933, and the date of the next marginal endorsement, May 17, 1939. A sufficient answer to this contention is that the Tfotter mortgage was not apparently barred of record when Addie Bell received the quitclaim deed in 1935, and she was therefore not a third party within the statute that requires the endorsement of payments-. Ark. Stats. 1947, § 51-1103; Jimerson v. Reed, 202 Ark. 490, 150 S. W. 2d 747. Since the mortgage was not then barred of record Addie Bell was not, under the holding in the Jimerson case, entitled to gain by the mortgagees’ failure to endorse subsequent payments upon the margin of the record.

The appellants urge us to reject the appellees’ testimony that Morton really made payments to his wife after she acquired the note and mortgage, but on this issue of credibility we defer to the decision of the chancellor, who had the advantage of seeing the witnesses as they testified. We conclude that the debt was not barred by limitations when the suit was filed, and there is no sound reason to charge Lula Bell with laches or with an estoppel. It does not appear that Addie Bell Green was prejudiced in any way by her sister-in-law’s failure to enforce the mortgage promptly; to the contrary, Addie Bell profited by the delay, as she received income from the land for a number of years.

Finally, it is insisted that the court erred in allowing one of the Trotter partners to prove, by means of the firm’s ledgers, the various payments that Morton Green made upon the debt. The cases cited by the appellants, Johnson v. Murphy, 204 Ark. 980, 166 S. W. 2d 9, and Covington v. Covington, 216 Ark. 549, 226 S. W. 2d 557, do not support their objections to Trotter’s testimony, for in those cases the account books were offered without any competent testimony to establish their authenticity. Here the witness Trotter was not a party to the suit, so his testimony was not affected by the dead man’s statute; and the book entries made in the regular course of business were admissible. Rice v. Moudy, 217 Ark. 816, 233 S. W. 2d 378; Vickers v. Ripley, 226 Ark. 802, 295 S. W. 2d 309.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    St. Louis-San Francisco Railway Co. v. Spencer.
    5-1944
    328 S. W. 2d 858
    Opinion delivered November 16, 1959.

      Warner, Warner S'Rag on, for appellant.

      Hubert L. Burch, John Wm. Murphy, for appellee.
   Paul Ward, Associate Justice.

This is a railway-crossing accident case in which there was a jury verdict in favor of appellee. Appellant prosecutes this appeal for a reversal on the ground that there was no substantial evidence to support a submission to the jury. The basic facts and pleadings are substantially as set out hereafter.

Mrs. Beulah E. Harris and her husband, both elderly people, were returning from Winslow in a 1941 DeSoto automobile to their home. They left Highway No. 74 and proceeded to drive west on a private road for a distance of approximately 285 feet where the private road crossed the tracks of the St. Louis-San Francisco Bail-way Company, to their home. This said portion of the private road runs through a densely wooded area and just as it approaches the said crossing there is a 20% incline. When their automobile was crossing the railroad tracks it was struck by the front end of the engine attached to a freight train, belonging to appellant, proceeding from the north. As a result of the collision Mrs. Harris and her husband were both killed.

This action was instituted by Wayne Spencer as the administrator of the estate of Beulah E. Harris. Among other things it was alleged in substance that on June 8, 1958, Beulah E. Harris was riding in an automobile driven by her husband traveling west on a road near the town of Winslow, and that said automobile collided with appellant’s southbound train, resulting in the death of Mrs. Harris. It was further alleged that Mrs. Harris’ death was a result of the negligence of appellant’s agents and employees in the following particulars: 1. They failed to keep a proper lookout as required by law; 2. They failed to give proper signals; 3. They failed to maintain the right-of-way free of trees, brush, weeds and grass which obscured the view of both the driver of the car and the operators of the engine; and 4. They failed to keep the track in proper state of repair at said crossing. At the close of all of the testimony the trial court, without objection on the part of appellee, instructed the jury “that the allegations dealing with signals, and maintenance of right-of-way are withdrawn from your consideration and the only allegation of negligence presented to you concerns the matter of keeping a proper lookout”.

For a reversal appellant relies on two designated points. One: There was no substantial evidence of violation of the lookout statute and the trial court erred in submitting the case to the jury on this issue. Two: The collision in question was the direct and proximate result of the negligence of the driver, (Mr.) Harris, and the contributory negligence of plaintiff’s decedent, Mrs. Harris. Since we have concluded that the judgment of the trial court must be reversed on Point Number One we deem it unnecessary to discuss Point Number Two.

The testimony and the exhibits show that as appellant’s railroad track approached the crossing from the north, it ran through a rather deep cut for approximately 500 feet which necessarily limited the view which the engine operators had of any automobile which might be approaching the crossing from the east. The freight train in question was being pulled by three diesel engines with an engineer and a fireman in charge of the front engine. The engineer was situated on the right side of the engine and the fireman on the left side of the engine. This arrangement placed the fireman on the side from which the Harris automobile was approaching the crossing and consequently gave him a better opportunity than the engineer had to discover the Harris automobile, and to do so sooner. The evidence reveals that the freight train was traveling at the rate of approximately 30 miles per hour and that the Harris automobile was traveling about one-third of that speed at the time of the accident.

Since Mr. and Mrs. Harris were both killed there were only three witnesses who testified relative to the kind of lookout that was observed by appellant’s agents and employees. Those witnesses were the engineer, the fireman, and a Mr. Marvin Anderson.

The testimony of the above witnesses was substantially as set out hereafter. James Hankins, the fireman, stated: On June 8th I was acting as fireman on the train that was involved in the accident; my job is on the left-hand side in the front seat of the engine and the cab is located about 12 feet back from the front of the engine; we were pulling a freight train of approximately 14 cars, part of which were loaded; we had three engine units on the train and three brakemen, two of which were riding in the second engine, one on the left and one on the right, and the third was riding with the conductor; I have been on this run about seven years and make it approximately three times a week; “I maintained a constant lookout ahead”; I first saw the Harris’ car when the train was approximately 60 to 70 feet from the crossing and determined that it was not going to stop; I told the engineer to set the brakes; the engineer set the emergency brakes at approximately 45 to 50 feet from the crossing; the brakes were in good condition and remained on until we stopped; when I first saw the Harris ’ car it was approximately 35 feet from the crossing— I could tell someone was in the car but did not see how many or which way they were looking; the draw bar of the train hit the back door of the automobile on the right-hand side. E. Vincent, the engineer, testified: I have worked for appellant for 43 years; at the time of the collision I was in my seat on the right-hand side of the engine; the train was headed south which would put me on the west side of the track; at the time of the accident I was whistling for the crossing, after having whistled for the tunnel; the fireman hollered for me to “big'-hole” the train, i.e., put on the emergency brakes; I put on the emergency brakes when the train was from 45 to 50 feet from the crossing; the train made a good stop and only twelve cars passed the crossing; the emergency brakes were on from the time the fireman yelled at me and they were in good condition. Marvin Anderson testified: I operate a cafe on Highway 71 about 300 feet from the railroad track and about 1,000 feet away from where the Harrises live; on the day of the accident I heard the train whistle and I -waved at a fireman or brakeman as the train went by and he waved back; the whistle blew a lot; I did not hear the impact but I did hear the train stop.

As the record stands we find no testimony to contradict the statement of the fireman that he maintained a constant lookout ahead, that he first saw the automobile when the train was about 70 feet from the crossing, that he promptly yelled to the engineer to set the emergency brakes; and there is no testimony in the record to contradict the engineer’s statement that he applied the emergency brakes promptly when the fireman yelled at him to do so. On the other hand the fact that the brakes were set, as testified to by the engineer, about 45 or 50 feet from the crossing and the fact that the train actually stopped as quickly as it did, seemed to indicate that there was prompt action after the discovery of the peril on the part of both the fireman and the engineer. There is nothing in the record to indicate that either was negligent or dilatory, or that they could have done more than they did to prevent the collision. On the other hand some confirmation of the reasonableness of their testimony is found in the surrounding circumstances as they are revealed in the testimony and by the exhibits. From such source it clearly appears that the fireman’s view was definitely limited by the “cut” through which the train approached the crossing, by the steep incline of the private road as it approaches the crossing, and from the trees that lined that portion of the private road. We find nothing substantial in the testimony of Marvin Anderson to indicate that the fireman, Hankins, was not keeping a constant lookout in accordance with his testimony. Anderson’s testimony and the exhibits clearly show that if Hankins did wave at him he did so at a time and place which in no way prevented him from keeping a constant lookout when and where it would have been effective. In other words, Hankins could have waved at Anderson and still have maintained a proper lookout for automobiles approaching the crossing in question. In addition, it is not clear from the testimony that Hankins was the man who waved at him. It could have been one of the brakemen mentioned in Hankins’ testimony.

Arkansas Statutes, Section 73-1002, which imposes a duty upon those operating a train to keep a lookout, in all material parts, reads as follows: “It shall be the duty of all persons running trains in this State upon any railroad, to keep a constant lookout for persons and property upon the tracks of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout”. In the case of Kansas City Southern Railway Company v. Shane, Administratrix, 225 Ark. 80, 279 S. W. 2d 284, this statement was made: “In construing Section 73-1002 above our rule appears to be well settled where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train and the burden rests on the company to show that it was not guilty of negligence”. In that case it was stated that the statute in question creates a presumption or inference of negligence on the part of the railroad company. In the same ease, however, the court approved what now appears to be the settled rule of this court to the effect that “ ‘The only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When this is done, the inference is at an end, and the question of negligence is one for the jury upon all the evidence’ ”.

As we have pointed out above the fireman in this case testified that he kept a constant lookout, and, as said in the case of St. Louis-San Francisco Railway Company v. Cole, 181 Ark. 780, 27 S. W. 2d 992, “The jury could not arbitrarily disregard the testimony of the engineer and the fireman”. It was likewise held in the case of St. Louis-San Francisco Railway Company v. Williams, 180 Ark. 413, 215 S. W. 2d 611, that where an engineer testified that he kept a constant lookout and there was no testimony to the contrary, the burden of proof imposed by the statute upon the railroad company was therefore discharged.

In view of the above announced rules and in view of the record in this case as set forth above, we are bound to conclude that any burden resting upon appellant has been fully discharged and that appellee failed to show any actionable negligence on the part of appellant’s employees. In the absence of any evidence the jury could only have speculated on why the deceased and her husband drove upon the railroad track in front of appellant’s train. In the case of St. Louis-San Francisco Railway Company, Thompson, Trustee v. Thurman, 213 Ark. 840, 213 S. W. 2d 362, we said: “Verdicts cannot be founded on conjecture; negligence must be proved”.

Since as heretofore pointed out the record shows conclusively that appellant’s employees maintained a constant lookout in accordance with the statute heretofore mentioned and since there is no substantial evidence in the record to the contrary, and since the record contains no other evidence of any negligence on the part of appellant’s employees relative to the only issue here presented, it must follow that the trial court was in error in submitting this case to the jury. Therefore, the judgment of the trial court is reversed and the cause of action is dismissed.

Reversed and dismissed.


author: Sam Robinson, Associate Justice.

text:
    McPherson v. Smith.
    5-1926
    328 S. W. 2d 849
    Opinion delivered November 16, 1959.

      Victor L. Nutt, Lloyd Henry, for petitioner.

      John D. Eldridge, Jr. and George P. Eldridge, for respondent.
   Sam Robinson, Associate Justice.

Helen McPherson filed suit for divorce in the Woodruff Chancery Court alleging as grounds three years separation. The complaint also asked that her husband, W. E. McPherson, be required to render an accounting of a trust of which he was co-trustee. The case is here on a petition for a writ of prohibition. Petitioner is the defendant in the action filed below in chancery court.

Petitioner filed two motions to strike, both of which contained the allegation that the complaint stated two causes of action, namely, one for divorce and the second for a trust accounting. In addition, the first motion alleged that the court had no jurisdiction of the trust res in that it was not located in Woodruff County and petitioner was not a resident of and was not served in Wood-ruff County. The second motion alleged that the two causes of action were improperly joined. The chancery court overruled both motions to strike.

For his writ of prohibition, petitioner argues the points relied on below in both motions to strike. It is unnecessary, however, to discuss anything other than the question of improper joinder of actions.

The case turns on the complaint filed in the chancery action. In it the normal allegations for a divorce are first made and then it alleges that the plaintiff and petitioner in 1951 executed a trust instrument naming themselves as trustees and their three children beneficiaries. The trust instrument, a copy of which was attached to the complaint, states that one of the children, W. E. McPherson, Jr., is to become a co-trustee upon reaching 21 years of age. He is now 22 years of age and has assumed this role. The prayer of the complaint asks “that the defendant, W. E. McPherson, be required to account to this court for the operation of the trust property from the beginning of the trust to the present ime; that he be required to make distribution to the beneficiaries under the terms of the trust; and that if the court finds that the defendant has violated the terms of the trust that he be enjoined from engaging in such violations in the future and required to make the trust estate whole”, and then follows the prayer for divorce, adjudication of property rights and other customary relief in divorce actions.

The test of whether more than one cause of action is stated is whether more than one distinct primary right or subject of controversy is presented for enforcement or adjudication. This rule has been applied in numerous cases. 1 C. J.'S. “Actions”, § 64, p. 1185. Respondent argues that the relief prayed for pertaining to the trust is only incidental to determining the rights of plaintiff below in the divorce action. However, no one would question the right of plaintiff below to maintain a separate cause of action on the relief prayed for regarding the trust. Therefore, applying the above test there can be no doubt that there are two distinct and separate causes of action.

It follows that we must determine if they are improperly joined. One action is for divorce against petiti.on.er individually. The other is for an accounting in his representative capacity as a trustee. As a general rule a cause of action accruing in favor of or against one individually cannot be joined with a cause of action existing in his favor or against him in a representative capacity. Governor, to Use of Lyon v. Evans, 1 Ark. (1 Pike) 349; McDaniel v. Parks, 19 Ark. 671; 1 Am. Jur. “Actions”, § 82, p. 468. Here we have two distinct causes of action, one against the petitioner individually and one against him in a representative capacity. We find nothing in our controlling statute, Ark. Stat. § 27-1301, or in our decisions, allowing such joinder.

The writ will be granted in accordance with the above opinion.


author: Jim Johnson, Associate Justice.

text:
    Foster v. Universal C. I. T. Corp.
    5-1947
    330 S. W. 2d 288
    Opinion delivered November 16, 1959.
    [Rehearing denied January 18, 1960]

      John D. Eldridge, Jr. and George P. Eldridge, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a Chancery decree in which a conditional sales contract between the appellant, James H. Foster, and appellees, Universal C. I. T. Credit Corporation, and The Augusta Motor Company, Incorporated, was held not to be usurious. The facts, being stipulated, are not in dispute.

Appellant purchased from appellee, Augusta Motor •Company, an automobile and agreed to the issuance of ■certain insurance policies. The conditional sales contract covered the cost of the policies. The contract was later assigned to appellee, Universal C. I. T. Credit Corporation. Subsequent to this transaction the insurance carrier cancelled a collision insurance policy against the automobile thereby causing appellant to be entitled to a pro rata return premium in the amount of $172.44. The contract allowed the appellee to purchase a single interest policy to protect its interest, which was done at a cost of $41.09, leaving a net amount of $131.35 due appellant. The appellee advised appellant of its action in a letter in which it also advised that the difference had been credited to the last installment of appellant’s account, and further, that if appellant within the next 30 days obtained another policy to protect both of their interests they would cancel the single interest policy and credit appellant’s account with the full return premium. Soon thereafter, appellant notified appellee by letter that he felt he was entitled to a reduction in his monthly payments. Appellee advised appellant that it could not revise the contract to change the monthly installments. Appellant then brought this suit to cancel the contract for usury alleging that he was overcharged by the amount of interest that would have been due on the return premium.

Among other points relied on by appellant for reversal, there is this one, which we find to possess merit: The contract is usurious in that the portion of the payments representing interest charges demanded by appellee exceed 10 per cent of the principal balance due after the cancellation of the insurance policy, and it is the intention of the appellee to take and receive more than the legal rate of interest.

The appellant shows that the contract at its inception had in it the seeds of usury, because it allowed the appellee — under the circumstances that came into existence in this case — to retain some of appellant’s money without promptly crediting such amounts on the maturing payments due on the contract.

To support his contention, appellant introduced the affidavit of Mr. Elbert E. Miller, Public Accountant, which stated that taking into consideration the cancelled insurance premium, the appellant would have been required to pay $1,383.22 under the contract, and that if the indebtedness had been recalculated as requested, the appellant would have owed twenty-one payments of $62.25, and one payment of $62.41, or a total of $1,369.66. Therefore, the contract with the appellee is usurious to the extent of $13.56. A calculation prepared electronically by Finance Publishing Company of Boston, Mass., also introduced by the appellant, differs from that of the accountant by only two cents.

The appellee, on the other hand, contends that the contract is not usurious, since the contract was not modified, and the refund of the unearned insurance premium represented merely a prepayment on the contract.

It must be conceded that appellee is correct when it states that the premium represents a prepayment on the contract since there was a provision in the contract which provided:

‘ ‘ Customer hereby assigns to holder any moneys not in excess of the unpaid balance hereunder which may become payable under such and other insurance, including return or unearned premiums, and directs any insurance company to make payment direct to holder to be applied to said unpaid balance and appoints holder as attorney in fact to endorse any draft.”

According to the above. provision in the contract, when any amounts are received by the appellee they are to be applied on the account and in this sense it is the same as a prepayment option. Further conceding that the weight of authority is that prepayment of the principal before it is due does not in itself make a contract usurious, however, in applying the rule this court has recognized some limitation according to whether the prepayment is voluntary or involuntary. In Eldred v. Hart, 87 Ark. 534, 113 S. W. 213 (1908) this Court said at page 539:

“Where a debt, including both principal and interest and due by installments, if paid according to the terms of the contract, is free from usury, the transaction is not rendered usurious by the voluntary payment of the debt in full before some of the installments matured, although as a result the creditors would receive, in the aggregate, a sum amounting to more than the principal and the maximum legal rate of interest.” Savannah Savings Bank v. Logan, 99 Ga. 291; Keckley v. Union, 79 Va. 458.

Also, 55 Am. Jur. § 48, at page 360 states:

“The comparatively few jurisdictions in which the question has arisen seem to be in accord in holding that a borrower’s voluntary payment of a loan before maturity, made pursuant to a prepayment option in the contract, will not render the transaction usurious if the total interest received by the lender does not exceed the interest computed at the maximum lawful rate from the time the loan became available to the borrower to the absolute maturity date specified in the contract. Similarly, a provision in a loan contract privileging a borrower to pay the loan in advance of maturity ordinarily will not make the contract usurious on its face if its exercise is entirely optional with the borrower and cannot be demanded or required by the lender.”

No cases have been called to our attention nor have we been able to find decisions in which the court held that involuntary prepayment would make the contract usurious under these circumstances. However, in view of the language of Eldred v. Hart, supra, and 55 Am. Jur., supra, in addition to the discussion in the annotation titled “Usury as affected by repayment, or borrower’s-option to repay loan before maturity,” in 130 A. L. R. 73, the only logical conclusion which can be reached is-that involuntary prepayment would make the contract usurious if it resulted in the interest exceeding the constitutional limitation. The issue in this case is, therefore, whether the prepayment on the debt was involuntary. According to the provision in this contract, the form of which was prepared by appellee, the appellant had no choice as to whether the sums applied as a payment on the indebtedness at the time they were received by appellee. Construing this contract, as we must, strictly against the party preparing it; Yellow Cab Co. of Texarkana, Inc. v. Texarkana Municipal Airport, 230 Ark. 401, 322 S. W. 2d 688; W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6, 121 S. W. 2d 886; and taking into consideration the request made by appellant to have the monthly payments reduced, which was denied, we must conclude that the prepayment was involuntary. Therefore, in the absence of testimony refuting appellant’s contention that a usurious rate of interest was charged on this contract, it is our opinion that the contract from its inception contained the seeds of usury which matured into usury upon the happening of the contingency, i.e., the cancellation of the insurance policy.

Reversed.

Mr. Justice Holt dissents.


author: Carleton Harris, Chief Justice. Jim Johnson, Associate Justice,

text:
    Smith v. State.
    4956
    330 S. W. 2d 58
    Opinion delivered November 23, 1959.
    [Rehearing denied January 11, 1960]

      Virgil Roach Moncrief and John W. Moncrief, for appellant*

      Bruce Bennett, Atty. General, By: John T. Hashins, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Leroy Smith, was charged by Information on September 23, 1958, -with the crime of Manslaughter. On April 6, 1959, appellant demurred to the information as follows:

“The Defendant Leroy Smith demurs to the information herein and says the information does not charge this defendant with a crime and does not state facts sufficient to charge him with a crime and does not state facts sufficient to charge defendant with voluntary manslaughter and does not state facts sufficient to charge defendant with involuntary manslaughter and information does not state or show what crime the Prosecuting Attorney is attempting to charge against defendant and does not state the nature and cause of the accusation, or either, and does not give defendant sufficient information as to the accusation or the nature or cause thereof and does not furnish him with information sufficient to prepare his defense or to know what is called upon to meet and defendant demurs and moves dismissal and quashing of the information and prays all other proper relief in the premises.”

The court overruled the demurrer, to which action appellant noted his exceptions, following which a plea of not guilty was entered by counsel (without waiving appellant’s demurrer), and the cause proceeded to trial on April 7th. The jury found Smith guilty of voluntary manslaughter and fixed his punishment at three years confinement in the penitentiary. Prom the judgment so entered by the court, appellant brings this appeal.

Por reversal, appellant contends that the Information is insufficient, does not comply with the requirements of the Constitution, and the court accordingly erred in overruling the demurrer. Further, that Initiated Act No. 3 is unconstitutional insofar as it relates to the required contents of the Information.

The Information, under attack, reads as follows:

“I, W. M. LEE, Prosecuting Attorney, within and for the 17th Judicial Circuit of the State of Arkansas, of which ARKANSAS NORTHERN DISTRICT County is a part, in the name and by the authority of the State of Arkansas on oath, accuse the defendants, LEROY SMITH and GLENN STIGGER of the crime of Manslaughter committed as follows, to-wit: The said defendants on the 20th day of September, 1958, in Arkansas Northern District County, Arkansas, did unlawfully, and without malice or deliberation, kill one James Johnson, Jr., by shooting him, the said James Johnson, Jr., with a pistol loaded with gun-powder and leaden balls, and held in his, the said Leroy Smith’s hands against the Peace and Dignity of the State of Arkansas.”

It is first contended that since appellant was not specifically charged with either voluntary or involuntary manslaughter, he was not given adequate information as to the nature of the crime with which he stood accused, and the charge did not furnish sufficient details to enable him to properly prepare his defense. Section 41-2207, Ark. Stats. (1947) Anno., defines manslaughter as follows : ‘ ‘ Manslaughter is the unlawful killing of a human being, without malice, express or implied, and without deliberation.” ’While subsequent sections specifically define voluntary and involuntary manslaughter, we do not agree that it was necessary that the- Information designate the particular category of manslaughter in the formal charge. Certainly, the Information filed by the prosecuting attorney charged appellant with the offense as defined in § 41-2207, and also complied with the provisions of Sections 22 and 23 of Initiated Act No. 3, adopted by the people in November, 1936. Section 22 of that Act provides as follows:

“The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. * * * ”

In the instant case, the title of the prosecution is clear, the name of the court in which the Information is presented is given, and the name of the defendant and of the person killed is definitely stated. Actually, the charge contained more language than was necessary since, under the provisions of Sections 22 and 23, the allegation “with a pistol loaded with gun powder and leaden balls, and held in his, the said Leroy Smith’s hands”, is no longer essential. We find nothing vague or confusing in this Information, and are unable to comprehend how Smith could have failed to know with what offense he was charged. At any rate, appellant was not precluded from obtaining more specific details. Section 22 also provides: “The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts on which it relies for conviction.”

The people adopted Initiated Act No. 3 as a means of reforming and modernizing our criminal procedure which, throughout the years, had become overburdened with excessive technicalities; cases dragged interminably, and the efficiency of our Courts was gravely impaired.

A very fine discussion of this Initiated Act is found in the Arkansas Law Review of the spring of 1957, Volume 11, page 117, which is entitled, “The Criminal Procedure Reforms of 1936 — Twenty Years After.” The article is written by Dr. Robert A. Leflar, Distinguished Professor of Law, former Dean of the University of Arkansas Law School, former Associate Justice of this Court, and presently connected with the law schools of the University of Arkansas and New York University. Relative to the sections here under discussion, Dr. Leflar writes:

“Excessive technicalities probably produced more inexcusable delay and more miscarriages of criminal justice in connection with the sufficiency of indictments at common law than in any other area. One classic example is a case from Missouri where the law, as in Arkansas, requires that indictments conclude with the words ‘Against the peace and dignity of the State’. The particular indictment used only the words ‘Against the peace and dignity of State.’ Omission of the last ‘the’ was held to call for reversal of the defendant’s conviction of rape. The Arkansas court never went as far with such technicalities as did some other states. Nevertheless there were many cases, like the one in which an indictment, charging that defendant ‘after having given birth to a bastard child did feloniously and unlawfully conceal the death of said bastard child’, was held invalid because it did not affirmatively allege that the bastard child was dead, where technicality overrode common sense.
‘ ‘ Section 22 of the Initiated Act undertook as far as possible to simplify the wording of indictments, by providing that within the standard verbal framework it should be enough to charge the commission of the crime by its common legal name, without necessity for detailing the specific acts allegedly done by the defendant and without specifying the bad state of mind set out in the statutory definition of the crime. Such formal allegations were deemed to be included in the name of the crime charged. The defendant could, however, in any case in which further information was actually needed, require the state to file a bill of particulars. * * *
“The act’s broad provisions for bills of particulars invited prompt legislative implementation, and the act prepared by the Prosecuting Attorneys Association with aid from members of the Criminal law Reform Commission, and enacted by the 1937 General Assembly, declared that bills of particulars, when required by law, should set out the facts with sufficient certainty to apprise the defendant of the specific crime charged so that he can prepare his defense. A copy of the bill must be furnished to the defendant at his request, and a supplemental bill is required if the court finds that the one originally filed by the prosecuting attorney was inadequate. Though the prosecuting attorney may file a bill of particulars under section 24 of the Initiated Act without any request from the defendant, and the court may presumably require one to be filed on its own motion, it is held that a defendant may not object to the failure to file one if he did not request it. Also it is held that a defendant’s motion for a bill of particulars was properly denied when the indictment or information itself set out all the relevant facts and there was no showing that the additional facts requested would actually have helped the defendant pepare his defense, or where the prosecuting attorney stated that the information, itself sufficient, set out all the facts that were known to him. Actually, the granting of bills of particulars is of necessity largely governed by the discretion of the trial court, though not entirely, and that is the general effect of the decisions that have been rendered on the matter since 1936.
‘ ‘ The Supreme Court’s attitude toward the simplified forms of indictment permitted by the Initiated Act is indicated by the statement in Underwood v. State: ‘That act was adopted by the people, however, for the very purpose of simplifying procedure in criminal cases, and eliminating some of the technical defenses by means of which criminals had often in the past escaped punishment for their crimes. ’ * * *
‘ ‘ The Court has consistently accepted sections 22 and 23 in spirit as well as letter, and has invalidated indictments and informations only when they actually failed to make clear what offense was being charged against the defendant.”

Dr. Leñar cites numerous cases in the footnotes to substantiate the statements made. In Mortensen v. State, 214 Ark. 528, 217 S. W. 2d 325, appellant was charged by Information with the crime of obtaining money under false pretense, and filed a demurrer to the Information because it did not recite details of the false pretenses employed in obtaining the money. The demurrer was overruled, and appellant then filed a motion to require the filing of a bill of particulars, which motion was complied with. Appellant was convicted, and sentenced to five years in the penitentiary. On appeal, he contended that the court should have sustained his demurrer, and further contended that the bill of particulars filed in response to Ms motion, did not contain sufficient information to fully apprise Mm of the specific offense committed. In affirming the conviction, tMs Court, in an opinion by the late beloved Justice Frank Smith, said:

“The demurrer was properly overruled as the information complies with the form of indictment set out in § 23 of Initiated Act No. 3, amending § 3029 C. and M. Digest, prescribing the form of an indictment in which a violation of the law is charged. ’ ’

Further, in referring to the Bill of Particulars, the Court said:

“The response was not as definite and full as appellant had the right to require it to be, but there was no request that it should be made more particular and certain. Section 4, Act 160 of the Acts of 1937, appearing as § 3796, Pope’s Digest, provides that ‘A supplemental bill of particulars may be required upon order of the trial court, if the bill of particulars filed by the prosecuting attorney is not sufficiently definite to apprise the defendant of the specific crime with which he is charged.’
Without requiring a supplementary bill of particulars, which appellant had the right to ask, he filed a demurrer to the information which alleged that the information and bill of particulars did not state an offense or crime under the statutes of Arkansas, and that the court did not have jurisdiction of the appellant, or of the subject matter of the alleged offense.”

In Craig v. State, 195 Ark. 925, 114 S. W. 2d 1073, in referring to Section 22 of Initiated Act No. 3, this Court said:

“By § 22, above quoted, naming the offense charged is made sufficient to carry with it the allegations required to constitute that offense, without a statement of the acts constituting it, unless the offense cannot be charged without doing so. If the allegations are insufficient to enable the accused to properly prepare his defense lie may require the state to file a hill of particulars ‘ setting out the act or acts upon which it relies f or conviction. ’
Here, the accused did not ask that the state be required to file a bill of particulars. Had he thought it necessary to properly prepare his defense that the names of the other rioters be alleged, or if their names were unknown, that that fact be alleged, he should have made such a request, which the trial court, no doubt, would have granted. We conclude, therefore, that the information is sufficient to sustain the conviction.”

See also Budd v. State, 198 Ark. 869, 131 S. W. 2d 933. Here, if appellant considered the charge vague, and insufficient to apprise him of the nature of the offense, it was only necessary that he file his motion asking that the State be required to file a Bill of Particulars, — but this was not done.

Appellant argues that this Information did not comply with the requirements of the Constitution, and that the provision relating to the contents of the Information (Sec. 22 of Initiated Act No. 3) is in violation of the Declaration of Bights of our Constitution; specifically in violation of Section 10 of Article II, which provides that the accused shall enjoy the right “ * * * to be informed of the nature and cause of the accusation against him.” The constitutionality of the short form of indictment and bill of particulars has been upheld in numerous of our sister states. 6 As stated by the Arizona Supreme Court in the case of State v. Chee, 250 P. 2d 985:

“Article 2, section 24, of the Constitution of Arizona bestows upon every person accused of crime certain invaluable rights none of which can be said to be now in controversy unless it be that of having the right to ‘demand the nature and cause of the accusation against him.’ Of the rules of procedure Section 44-712 confers the right to demand a bill of particulars supplemental to the allegations set forth in the indictment. The constitutional guarantee does not in terms or by implication require that the ‘nature and cause of the accusation’ appear in the indictment or information.”

In State v. Benham, 58 Ariz. 129, 118 P. 2d 91, the court said:

“In view of the simplified forms of indictment and information under the new criminal procedure, bills of particulars assume an important place in criminal trials. What was formerly essential to allege in the indictment or information may now be supplied to a defendant in a bill of particulars.”

Further:

“The provisions of the law with reference to furnishing a defendant the facts of the charge against him cannot be ignored or treated lightly. It has always been the law among right-thinking peoples, and we hope will continue to be the law in this land of ours, to require the state fully to inform the accused what he is charged with and to allow him time to prepare his defense, if he has one. The simplified rules of procedure do not take from a defendant one whit of a meritorious defense, but those rules do not tolerate defenses that only delay or obstruct the termination of criminal cases. An indictment or information that charges a homicide by name, as for instance, manslaughter, is good under the code, but one thus charged is entitled to know what the state expects to prove against him before he is put on his trial. * * *”

There is nothing in Initiated Act No. 3 which deprived appellant of any constitutional' right, nor was any undue burden placed upon him, for the requesting of a bill of particulars requires no more trouble than the filing of a demurrer.

What, after all, is the purpose of the language in the Declaration of Rights'? The clear purpose is to insure that every defendant shall be advised of the nature of the crime with which he is charged, in order that he may have adequate information to provide his defense. There was never any intent that one accused of crime should hide behind a curtain of technicalities, for our law is based as much upon the concept that justice shall be done, as upon the concept that injustice shall not be committed. The bill of particulars was designed to be used in lieu of numerous, and generally superfluous, allegations in tbe indictment or information. In giving to a defendant tbe privilege of obtaining this bill of particulars, tbe rights of tbe accused are as fully protected as though each detail were set out in tbe information; in fact, be is even able to obtain more pertinent facts than were ever required for tbe sufficiency of an indictment. We accordingly find no conflict with tbe constitutional requirement.

A few assignments of error are listed in tbe Motion for New Trial, but none of these points are argued in tbe brief, nor have we been provided with a Bill of Exceptions, and therefore, no evidence relative to these assignments is before tbe Court. Accordingly, such assignments must fail.

Finding no error, tbe judgment is affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. I do not agree with tbe majority opinion for two reasons.

First: Tbe sufficiency of tbe information. A defendant is innocent until proven guilty, and tbe indictment must be tested upon a presumption that tbe defendants have no knowledge of tbe facts charged against them. United States v. Westbrook, 114 F. Supp. 192 (DC Ark.), 42 C.J.S. page 893.

To me it appears unreasonable, to say tbe least, to put our stamp of approval on an information such as tbe one in tbis case. An information dealing with manslaughter should be more specific. Tbe reason it should be more specific is because, as far as an information is concerned, there are two distinguishing features between our statutory voluntary and involuntary manslaughter. Where one or both of these features are present tbe law should require tbe information to designate which crime is charged. These features are intent and punishment. In 27 Am. Jur. page 631, it is stated:

* ‘ The criminal intent of the accused must be alleged where the criminality of an act depends upon the intent with which it was done, but criminal intent need not be charged unless the statute makes such intent one of the constituent elements of the offense.”

In voluntary manslaughter there is intent; in involuntary manslaughter there is none.

In Hettle v. State, 144 Ark. 564, 222 S. W. 1066, on the question of punishment, this Court said:

“If the punishment to be inflicted is greater or less, according to the value of the property, the value must be stated in the indictment, because every indictment, for whatever offense, must set out every fact which the law makes an element in the punishment thereof. ’’

There is a difference in the punishment of voluntary and involuntary manslaughter in Arkansas.

If this information charged the defendant with either of the two crimes it should be involuntary manslaughter. “Without malice” is part of our statutory definition of involuntary manslaughter. This phrase is not found in the statutory definition of voluntary manslaughter. In the instant case, the information resembles a definition of involuntary manslaughter moreso than voluntary manslaughter and the defendant was convicted of voluntary manslaughter, the highest degree possible. Other than this distinguishing feature just mentioned, I don’t think a defendant could tell from this information whether he was charged with killing a man after catching him flagrante delicto or accidentally, while shooting at a target. We can easily say all he has to do is ask for a bill of particulars if he needs to know more about the crime, but this time spent trying to find out the facts of the alleged charge could be better spent preparing the defense of this presumably innocent man.

Ark. Stats., § 43-1011, says the indictment will be sufficient if it can be understood therefrom that the act or omission, charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment on conviction, according to the right of the case. In this case, how could a judge know whether the defendant had been convicted of voluntary manslaughter or involuntary manslaughter ? One might say the jury cured this problem for him by assessing the punishment but what if they had merely returned a guilty verdict with nothing more. What would the defendant be guilty of in that event? I suppose he would be guilty of violating Ark. Stats. § 41-2207, which is the statute the information appears to have been copied from. This statute has no criminal sanction which makes the violation thereof merely a misdemeanor.

Second: The bill of particulars.

Quoting from the majority opinion:

"At any rate, appellant was not precluded from obtaining more specific details. Section 22 also provides: ‘ The state, upon request of the defendant, shall file a bill of particulars, setting out the act or acts on which it relies for conviction. ’ ”

Quoting further from the majority opinion in Dr. Leñar’s article:

‘ ‘ ‘ The defendant could, however, in any case in which further information was actually needed, require the state to file a bill of particulars.’ ” (Emphasis supplied).

Quoting further from the majority opinion in the case of Mortensen v. State, 214 Ark. 528, 217 S. W. 2d 325.

"Without requiring a supplementary bill of particulars, which appellant had the right to ask, he filed a demurrer to the information which alleged that the information and bill of particulars did not state an offense or crime under the statutes of Arkansas.”

Quoting further from the majority opinion in the case of Craig v. State, 195 Ark. 925, 114 S. W. 2d 1073:

‘ ‘ Here, the accused did not ask that the state be required to file a bill of particulars. Had he thought it necessary to properly prepare his defense that the names of the other rioters be alleged ... he should have made such a request.”

Quoting further from the majority opinion:

“Here, if appellant considered the charge vague, and insufficient to apprise him of the nature of the offense, it was only necessary that he file his motion asking that the State be required to file a bill of particulars, but this was not done. ’ ’

And quoting further from the majority opinion:

“The bill of particulars was designed to be used in-lieu of numerous, and generally superfluous, allegations in the indictment or information. ’ ’ (Emphasis supplied).

The reason I have set out the quotes from each of these authorities is to attempt to show where each of them is in error in their opinion as to the proper use of a bill of particulars. In each of these cases this Court has put the burden on the accused to perfect a criminal charge against himself. In other words, it is evident from reading these cases that this Court considers a bill of particulars as- capable of amending an information or is using it to refuse the defendant his demurrer because he did not ask for a bill of particulars. In 27 Am. Jur. page 672, there is this:

“A bill of particulars is not an amendment of the indictment, or information, and cannot change the offense charged in the indictment or in any way aid an indictment fundamentally bad. Furthermore, it is not a remedy or cure for an indictment so defective that it charges no offense.”

And in State v. Lassotovitch, 162 Md. 147, 159 A. 362, 81 A.L.R. 69, the Court said:

“The rule allowing a bill of particulars is for the benefit of the accused. He may, but is not bound to, request it; and if he does not, he is entitled to attack the validity of. the charge as made out by the indictment. To hold otherwise would be to say that no indictment could be attacked by demurrer by an accused, for vagueness or indefiniteness of its allegations, without first demanding a bill of particulars. ’ ’

In my opinion, this Court is denying the accused the opportunity to demur without first asking for a bill of particulars. The people did adopt Initiated Act 3 to modernize our criminal procedure but I do not believe they also intended to do away with a demurrer, which would test the sufficiency of the information in a criminal prosecution. In my opinion, the majority seems to consider this constitutional right of an accused to be apprised of the charge against him as a mere technical right, used often to escape justice. In 42 C.J.S. page 960, there is this:

" This right of accused is a substantial right, and not a mere technical or formal right.”

If we are to say that an accused cannot attack an information without first requiring a bill of particulars, then we are saying an information can never be held bad for violating the accused’s constitutional right to be informed of the charge against him. The reason for this is that anytime the information is bad the accused can ask for a bill of particulars and if it is still not sufficient he can ask for another and if that is insufficient he should ask for another. How many times does an accused have to ask for a bill of particulars before he can demur to an information? With this reasoning to go on an information would be sufficient if it said: 44John Doe broke the law,” and then we could fill in the rest of it by bills of particulars unless the defendant did not ask for one, in which case he cannot attack the information on the constitutional ground previously mentioned.

The Arizona case of State v. Benham, cited by the majority can be distinguished as to the charge because in Arizona the maximum punishment for voluntary manslaughter and involuntary manslaughter is the same, and, as previously stated, this is one reason the information should be more specific. The Arizona case of State v. Chee, cited by the majority, is interesting because of the reasoning used. The Arizona Court said: 44The constitutional guarantee does not in terms or by implication require that the ‘nature and cause of the accusation’ appear in the indictment or information.” At first glance, this appears reasonable, but what is the result? The result is this Court has, by interpretation of one statute, destroyed the purpose of the demurrer statutes.

If we can say an accused should ask for a bill of particulars, why couldn’t we also say he should dig up the facts himself before he can demur. This might appear farfetched but it is only a question of degree. What burden do we want to put on the defendant? Where should we stop? The constitution gave us a guidepost, recognized in Anglo Saxon jurisprudence for many years, and in an attempt to simplify our criminal laws and do away with technicalities, this court has done away with the guidepost. For this, and the other reasons heretofore set out, I respectfully dissent.

       The case against Stigger was dismissed on motion of the prosecuting attorney on November 5, 1958.

       Sections 41-2208 and 41-2209, Ark. Stats. (1947) Anno.

       Form of Information.

       Constitutional Amendment #21, permitting prosecutions by the filing of Information by the Prosecuting Attorney, as well as indictments by the Grand Jury, is also discussed. Amendment #21 was also adopted in November, 1936.

       Among others, Arizona, California, Iowa, New Mexico, Massachusetts, and New York.

       On the question of intent, compare McGough v. State, 119 Ark. 57, 177 S. W. 398, and Tharp v. State, 99 Ark. 188, 137 S. W. 1097.

       Also see 31 C. J. page 734, to the same effect.

       There is an annotation “sufficiency of indictment as affected by bill of particulars” in 10 A.L.R. page 982.


author: J. Seaborn Holt, Associate Justice.

text:
    Rebsamen Motors v. Moore.
    5-1971
    329 S. W. 2d 155
    Opinion delivered November 23, 1959.

      Moses, McClellan, Arnold, Owen & McDermott and James R. Howard, for appellant.

      O. W. Pete Wiggins, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a replevin action, Sections 34-2102 ■— 34-2118 (Ark. Stats. 1947). On September 11, 1958, appellant, Rebsamen Motors, and appellee, Burley B. Moore, entered into a written contract whereby Rebsamen Motors was to sell and Moore was to buy a 1958 ford automobile. The purchase price was $3,051.09. Appellant gave Moore a trade-in allowance on his 1957 automobile of $1,521.09, leaving a balance due and owing Rebsamen Motors $1,-530.00, plus insurance and carrying charges. This balance of $1,530.00 was to be financed through the Government Employees Finance Company of Fort Worth, Texas. Moore drew a draft on this finance company for $1,530.00 payable to Rebsamen Motors and forwarded it to the finance company in Fort Worth. The finance company refused to honor the draft because it appeared that there was a lien for a balance due on the 1957 automobile which Moore had traded in, a little in excess of $400.00, and the finance company refused to honor the draft in question until this balance was paid. Upon the return of the draft, unpaid, appellant, Rebsamen Motors, filed suit to repossess the 1958 automobile, alleging that it owned it and was entitled to its immediate possession and did take possession, after posting the bond required. Moore answered with a general denial and counter-claimed, alleging that appellant’s possession was wrongful, asked that the 1958 automobile be returned to him, for damages for its wrongful taking, and further prayed for costs and attorney’s fee. Trial resulted in a verdict in favor of appellee, Burley Moore and a judgment was entered containing these recitals: “We, the jury, find for the defendant, (s) Jack S. Bew, Foreman. The jury also returned into the court the further verdict as follows: And we the jury find for the defendant on his cross-complaint, and fix his recovery in the sum of $350.00 (s) Jack S. Bew, Foreman. IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the defendant, Burley B. Moore, recover of and from the plaintiff, Rebsamen Motors, Inc., the Possession of the automobile taken by the plaintiff from the defendant. It is further considered, ordered and adjudged by the Court that the defendant have and recover of and from the plaintiff and H. A. Hemmenway the sum of Three Hundred and Fifty ($350.00) Dollars on his cross-complaint together with interest thereon from this date until paid at the rate of six (6%) per cent per annum, and that said defendant have and recover of and from the plaintiff and H. A. Hemmenway all of his costs herein, expended.”

For reversal appellant relies on two points as follows: “(1) The court erred in admitting testimony which contradicted the terms of a written agreement (2) The court erred in failing to grant plaintiff’s motion for a new trial and in giving defendant’s instruction number 8.”

—1—

Appellee contended that under his written contract and agreement with appellant, appellant was to allow him $1,521.09 for his 1957 car and also that appellant orally agreed to assume and pay off a lien that existed, against the 1957 Ford in the amount of $430.00. Without attempting to detail here the testimony of several witnesses on this issue, it suffices to say that we think such testimony amply supports appellee’s; contention that appellant did so agree. We think this; testimony was properly admitted by the court, in the circumstances, to show just what were the terms of the agreement and contract between the parties. Our governing ruüe,. in a case such as this, was stated by this court in 90 Ark. 426, 119 S. W. 822, J. H. Magill Lumber Company v. Lane-White Lumber Company, where we said: ‘‘The- principal contention in the case is that the bill of' sale is complete and unambiguous, that it is the sole evidence of the contract between the prties, and that an additional parol agreement to pay the mortgage debt as- a part of the consideration for the sale cannot be engrafted' upon the contract. It has been decided by this court in numerous cases that, though the recitals as to consideration in a deed cannot be contradicted by parol evidence for the purpose of defeating the conveyance, it is-competent to prove by such evidence that the consideration has not been paid as recited or to establish the fact that other considerations not recited in the deed were' agreed to be paid, when it does not contradict the terms of the writing.” See also 99 Ark. 218, 138 S. W. 978, Cox v. Smith.

—2— •

Appellant, Rebsamen Motors, brought an action alleging and claiming that it was the owner and entitled to immediate possession of the 1958 car and after executing the bond required, did take possession of the 1958 car, as indicated, and at time of trial Rebsamen had possession of both the 1957 Ford and the 1958 car, including Moore’s equity in both cars. The record reflects, as pointed out above, that the jury found for appellee, Moore, so obviously the finding means that Rebsamen was not the owner and not entitled to possession of the 1958 car. Since Moore admits owing a balance of $1,530.00 on the 1958 ear, we think it was error for the court to accept a verdict wherein no value of the 1958 car was found and render a judgment on such verdict. Sections 34-2115 and 34-2116 (Ark. Stats. 1947) provide: “34-2115. Jury to assess value of property and determine damages. — In actions for recovery of specific personal property, the jury must assess the value of the property, as also the damages for taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property.”

“34-2116. Judgment for recovery. — In an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery can not be had, and damages for the detention. Where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property, or its value, in case a return can not be had, and damages for the taking and withholding of the property.”

The verdict for $350.00 in favor of Moore on his cross-complaint is indefinite. What does it intend to cover? Was it intended to cover everything? We are unable to tell from the form of the verdict. Does this verdict mean that Moore is to get the 1958 car and make all payments on his contract with Rebsamen? Section 51-1102 (Ark. Stats. 1947) provides: “In any action in a * * * circuit court of this State, where it is attempted to foreclose any mortgage, deed of trust or to replevy, under such mortgage, deed of trust or other instrument, any personal property, the defendant or defendants in said action shall have the right to prove or show any payment or payments or set-off under said mortgage, deed of trust or other instrument, and judgment shall be rendered for the property or the balance due thereon, and the defendant may pay the judgment for the balance due and costs within ten (10) days and satisfy the judgment and retain the property.”

In Harper v. Futrell, 204 Ark. 822, 164 S. W. 2d 995, we held, in effect, that this statute is applicable to a replevin action by the seller under a conditional sales contract. In 15 Ark. Digest (West) Page 185, Section 101 (1) under Form and requisites in general, Replevin, the author says: “Ark. 1867. Under Grould’s Dig. c. 145, Sections 44, 45, the defendant in replevin, upon a finding in Ms favor, is entitled to judgment for the return of the property to him, or may waive that right and take judgment for the value of the property, in which case it is the duty of the jury to find the value. —Hill v. Fellows, 25 Ark. 11.” These sections of Gould’s Digest are embraced in the above section 51-1102.

We conclude, therefore, that the judgment must be reversed and the case remanded for further proceedings consistent with this opinion.


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    Wadsworth v. Gathright.
    5-1941
    330 S. W. 2d 94
    Opinion delivered November 23, 1959.
    [Rehearing denied January 11, 1960]

      Wm. I. Prewett and Melvin E. Mayfield, for appellant.

      Shaver, Tackett & Jones, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal and cross appeal stem from a traffic mishap which occurred when an automobile driven by appellee, J. Frank Gathright, struck and seriously injured E. K. (Ken) Maroney, Jr., a little boy two-and-a-half years of age.

As Mr. Gathright and his wife were driving westerly down the highway in Strong, Arkansas, Sunday afternoon, September 1, 1956, they observed a little girl, five years of age, crossing the highway in front of the car. She was going from north to south, riding a tricycle, and several puppies were running along near her. The Gathrights, driving slowly and watching the little girl, did not see her 2%-year-old brother on a “stick-horse” following along behind her and the puppies. The left front bumper of the Gathright car struck the little boy, Ken Maroney, and knocked him to the pavement. Among other injuries, Ken had a fractured shaft of the left femur in the upper or middle third, and this fracture caused great pain, required extensive treatment and surgery, and probably will result in permanent injury-_

Action for damages was filed against Gathright by E. K. Maroney individually, being tbe father of Ken Maroney, and by Harry Wadsworth, as guardian of Ken Maroney. E. K. Maroney sued to recover amounts expended and to be expended for doctors, hospital, nursing, ambulance, and other medical expenses in the treatment of his son; and Wadsworth, as guardian of Ken Maroney, sued to recover for physical pain and suffering experienced by the little boy and for damages for permanent injuries. Trial'in the Union Circuit Court resulted in verdict and judgment (1) for $1,250.00 in favor of E. K. Maroney, Sr., father of the little boy; and (2) for $1,-000.00 in favor of Wadsworth, guardian of the minor, Ken Maroney. On the direct appeal in this case the guardian for the minor is the sole appellant; and he presents the three points herein listed and discussed.

I. The guardian says: “The judgment returned in behalf of Harry Wadsworth, guardian of E. K. Maroney, Jr., was grossly inadequate under the law and the evidenceAppellant points out that the little boy, being of such a tender age, could not be guilty of contributory negligence; that the jury necessarily found that Mr. Gathright was negligent; and that after such finding the $1,000.00 verdict was grossly inadequate. We are asked to conditionally reverse the judgment because of the inadequate verdict, just as we would do in the case of an excessive verdict. In some jurisdictions reversal because of an inadequate verdict is ordered independent of any other error. But, with becoming candor, appellant concedes that in Arkansas our cases hold, that reversal because of an inadequate verdict is ordered only when some other error occurs in the trial.

In Smith v. Ark. P. & L. Co., 191 Ark. 389, 86 S. W. 2d 111, we discussed this matter in considerable detail and cited, inter alia, Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49; and Kimbrough v. Johnson, 182 Ark. 522, 32 S. W. 2d 154; and then said: “When substantial damages are awarded, a judgment will not be reversed because of inadequacy if there be no other error than that committed by the jury in measuring the damages. But a judgment, even for substantial damages, will be reversed were the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.” We adhere to the rule as quoted above. The amount awarded the guardian in the case at bar was $1,000.00, which constitutes substantial damages: therefore, we will not consider the matter of inadequacy of damages until and unless we find some substantial and prejudicial error committed in the trial of the case.

II. The guardian says: “The Court erred in refusing to permit the talcing of pictures of appellee’s automobile and in refusing to permit Glen Thompson to testify as to the distances from which E. K. Maroney, Jr., could be seen from said automobile”. Mr. Gathright was driving a 1956 Chevrolet car at the time of the mishap on September 1, 1956. The action was filed August 27, 1957, and the discovery deposition of the defendant was taken on October 1, 1957. Later, on October 23, 1957, appellant filed a motion that the Court require the defendant to permit the taking of pictures. The motion said: “It would be of great benefit to the jury in considering the defendant’s range of vision if photographs could be taken of the vehicle at the scene, with a camera both in and out of the vehicle”. The Court overruled the said motion and appellant claims error, citing § 28-356 Ark. Stats., which is a part of the Statute Concerning Discovery.

The germane portion of this Statute reads: “Upon motion of any party showing good cause therefor ... . the court in which an action is pending may . . .” (Emphasis supplied). It will be observed that the court is not required to allow the taking of pictures, but may do so. In the case at bar the ruling of the Court was not prejudicial in any way to the guardian because at the trial of the ease the testimony, along with other pictures admitted, clearly explained the entire situation existing at the time of the mishap. We have repeatedly held that the admission, relevancy, and materiality of photographs as evidence is left to the discretion of the trial judge, and unless that discretion has been abused his ruling will not be disturbed. Kansas City Southern Ry. Co. v. Morris, 80 Ark. 528, 98 S. W. 363; Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79; Mc-George Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566.

Further, appellant says that when the case came for trial the Court refused to permit appellant to ask its witness, Glen Thompson, as to the distances from which Ken Maroney could have been seen from an automobile driven by Thompson and similar to the Gathright car. Irrespective of all other answers to this contention, we hold that no harm occurred to appellant in the Court’s ruling. The entire purpose and object of the desired testimony from Thompson was to show that Gathright was guilty of negligence. The jury verdict of $1,000.00 necessarily reached such conclusion: so we fail to see how any evidence as to vision or distance could have adversely affected the appellant.

III. The Guardian says: “The Court erred in giving defendant’s requested Instruction 5 and 6.” These two instructions are copied in full in the footnote, with the objected portions italicized. In Instruction No. 5, appellant objected to the words, “contributed directly to cause said accident”. In view of all the other instructions given, we see no difference between “contributed directly to cause said accident”, as was given, and “proximate cause of the accident”, as was urged by the appellant.

In Instruction No. 6, the objection is to the use of the word “sudden”. In the sentence immediately thereafter, the word “sudden” is omitted; so there is no force to this objection.

The final objection to Instruction No. 6 is, “It does not take into consideration or require the defendant to keep a proper lookout; it does not require him to use reasonable care in the operation of his vehicle unless he actually sees the little boy in this case”. This point is without merit, because, in other instructions given, the Court told the jury: the duty of a driver to anticipate the presence of pedestrians; that the little boy, Ken Maroney, could not be guilty of contributory negligence; that the driver of an automobile has a duty to maintain a constant lookout; and that the driver of an automobile should exercise due care to avoid injuring any pedestrian. All the instructions, when taken together, make clear that the Court committed no error in the instructions, as against the objections here made.

IV. Gathright’s Cross Appeal. On his cross appeal Gathright insists that the Court erred in refusing a directed verdict in his favor. He claims that no actionable negligence was shown. There was ample evidence of negligence sufficient to take the case to the jury. There was evidence from which the jury could have found that Mr. Gathright was watching the little girl and the puppies and did not look around to see where the little boy was. There was also evidence to show that Mr. Gathright’s car was slightly over the center line of the road when the little boy was struck by the left bumper. In short, we find no merit to the cross appeal.

Therefore, the case is affirmed on both direct appeal and cross appeal.

       This word is not in Webster’s dictionary; but, at all events, it is an extremely well known colloquialism. What little boy hasn’t gone astride a stick and imagined he was on a horse!

       The Court so charged the jury in Instruction No. 2; and this is in accord with our cases. Miles v. St. L. I. M. & S. Ry. Co., 90 Ark. 485, 119 S.W. 837.

       There is an exhaustive annotation on this point in 16 A.L.R. 2d 393, entitled: “Adequacy of damages in action by person injured for personal injuries not resulting in death”; and it is there pointed out that many courts reverse on account of inadequate damages, just as they do on account of excessive damages.

       DEFENDANT’S REQUESTED INSTRUCTION NO. 5: You are instructed that the mere happening of the accident complained of raises no presumption of negligence on the part of the defendant, and that the burden of proof is on the plaintiff to establish by a preponderance of the evidence that negligence on the part of the defendant contributed directly to cause said accident. If the minds of the jury are left in a state of even balance as to the existence of negligence on the part of the defendant, then, in that event, the plaintiff is not entitled to recover against the defendant and the verdict of the jury should be for the defendant.
      DEFENDANT’S REQUESTED INSTRUCTION NO. 6: You are instructed that the law does not impose any duty to guard against sudden, unforseen, and unanticipated acts of another. Therefore, if you find that the accident and resulting injuries, if any, were due to the unanticipated and unforeseen act of E. K. Maroney, Jr., and that the defendant did not see, or by the exercise of ordinary care could not have seen or anticipated that the child was crossing or would cross into the path of his automobile, then, in that event, the plaintiffs in this case cannot recover.
      (Emphasis supplied.)


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    Trammell v. Ramey.
    5-1972
    329 S. W. 2d 153
    Opinion delivered November 23, 1959.

      James M. Roy and Elsijane Trimble Roy, for appellant.

      Taylor & Sudbury, for appellee.
   George Rose Smith, J.

This is an action by the appellants, E. H. Trammell and his wife and child, to recover for personal injuries suffered in a collision between the Trammell car and a car that was owned and being driven by the appellee’s employee, Banks, whose drunkenness caused the accident. The collision happened on a Sunday night, at a time when Banks was upon a mission of his own having no connection with his employer’s business. The appellants seek to hold the employer liable on a theory so novel that it does not seem to have been asserted in any reported American case. The trial court sustained the appellee’s demurrer to the complaint, on the ground that no cause of action was stated, and this appeal is from the ensuing order of dismissal.

The complaint is long, but its essential allegations are simple. At the time of the collision in August of 1958 Ramey, it is said, operated a general store situated on IT. S. Highway 61 in a small community which seems to be a few miles south of Blytheville. Banks, a man of fifty-three, was Ramey’s senior employee, having worked regularly at the store for the preceding ten years. The two' men were living in adjacent houses behind the store and had been friends for twenty years.

Banks had had an alcoholic problem throughout the time Ramey had known him. In 1952 and again in 1958, a few months before the collision, Banks was arrested for driving while intoxicated. Ramey was frequently forced to send Banks home for drinking on the job. Ramey had discharged Banks several times on account of his alcoholism, but in each instance Banks had been re-employed. From the complaint: “Recognizing Mr. Banks’ weakness and addiction for alcohol and for driving motor vehicles while intoxicated, Mr. Ramey had assumed control thereof and responsibility therefor many months, if not years, before the accident. In connection therewith Mr. Ramey discussed the problem with Mr. Banks innumerable times and he also placed Banks in communication with the Blytheville Chapter of Alcoholics Anonymous and similar agencies.”

In August of 1958 Ramey decided to take Ms wife and cMldren to Tennessee for a week’s vacation. It is asserted that Ramey knew that his own presence was the strongest deterrent to Banks’ drinking and that in Ramey’s absence a substitute restraint was necessary. Despite this knowledge Ramey left without taking any precautions to forestall Banks’ drinking and particularly without notifying the Blytheville representatives of Alcoholics Anonymous, who had expressed their willingness to help at any time.

Ramey departed for Tennessee on Sunday morning and put Banks in charge of the store, which was to be reopened on Monday. That Sunday night Banks took his own car and drove to Blytheville, where he bought and consumed two pints of whiskey. Completely drunk, Banks attempted to drive back home, but before reaching the city limits he ran into the Trammell car and caused the injuries sued for. It is asserted that Banks has neither property nor liability insurance, so that the plaintiffs are without an effective remedy if Ramey is not liable for their injuries.

The trial court was right in holding that the allegations of the complaint do not establish liability on the part of Ramey. The principal charge is that Ramey had the power to control Banks and failed to exercise that power with knowledge of the harmful consequences that might follow. The question is, was Ramey guilty of negligence1? We think it plain that he was not.

Ordinarily one person is under no duty to control the actions of another person, even though the former has the practical ability to govern the latter. The exceptions to this basic principle all involve situations in which the defendant’s duty of control arises from a relation that exists either between the defendant and the plaintiff or between the defendant and the person who injured the plaintiff. Discussions of the general subject, upon which there is comparatively little authority, may be found in Harper and Kime, “The Duty to Control the Conduct of Another,” 43 Yale L. Jour. 886; Harper and James, The Law of Torts, § 18.7; Rest., Torts, §§ 317 to 320.

The relation of master and servant is one that may give rise to a duty on the part of the master to control his employee outside the scope of his employment, hut the duty exists only with respect to conduct by the servant which nevertheless has a substantial connection with the master’s business. The Restatement of Torts, which states the prevailing view, imposes that duty upon the master only when the servant is upon the master’s premises or is using a chattel belonging to the master. “Thus, a manufacturer is required to exercise his authority as master to prevent his servants, while in the factory yard during the lunch hour from indulging in games involving an unreasonable risk of harm to persons outside the factory premises. He is not required, however, to exercise any control over the actions of his employees while on the public streets or in a neighboring restaurant during the lunch interval even though the fact that they are his servants may give him the power to control their actions by threatening to dismiss them from his employment if they persist therein.” Rest., Torts, §317.

It is clear that the bare relation of master and servant did not impose upon Ramey any responsibility for Banks’ conduct in Blytheville on the night of the accident. The appellants argue, however, that Ramey rendered himself liable by taking an interest in Banks’ alcoholic problem and endeavoring to help Banks overcome his weakness. Cases such as Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S. W. 2d 892, 48 A. L. R. 2d 248, are relied upon for the general principle that one who assumes to act, even though under no duty to do so, may thereby become subject to an obligation to act carefully.

The doctrine in question falls decidedly short of visiting liability upon Ramey in this case. If a person gratuitously goes to the assistance of someone in distress he exposes himself to the consequences of his negligence, but there the matter ends; he is not bound to play the good Samaritan again if he is confronted with the same situation upon a wholly different occasion. Barney’s friendly guidance may have reduced the number of Banks’ sprees and in that way may have prevented highway accidents that would otherwise have occurred, but this does not entitle the public to demand that Bamey devote the rest of his life to the care of Banks. Even if Bamey had given up his vacation and had stayed at home to look after Banks, as the appellants think he should have done, he Avould still have -been free to abandon his voluntary supervision and let Banks go into Blytheville for the avowed purpose of getting drunk. Thus the complaint is not one but two steps away from the assertion of a cause of action.

Counsel for the appellants discuss at some length the law pertaining to nuisances, but if Bamey was not negligent in leaving Banks in control of His own car (and Bamey had no legal right to interfere with that control), there is' even less reason to hold that upon the same facts Bamey was absolutely liable for maintaining a nuisance. It is also argued that Banks was acting in the scope of his employment because he was returning to the store, but under our holding in Healey v. Coehrill, 133 Ark. 327, 202 S. W. 229, LBA 1918D, 115, and many later cases, it is clear that Banks was still engaged wholly in his OAvn affairs.

Affirmed.