Trammell v. Ramey, 5-1972

• Decision Date: 23 November 1959
• Docket Number: No. 5-1972,5-1972
• Parties: David TRAMMELL et al., Appellants, v. Preston RAMEY, Appellee.
• Court: Arkansas Supreme Court

Page 153

329 S.W.2d 153

231 Ark. 260

David TRAMMELL et al., Appellants, v. Preston RAMEY, Appellee.

No. 5-1972.

Supreme Court of Arkansas.

Nov. 23, 1959.

James M. Roy and Elsijane Trimble Roy Blytheville, for appellants.

Taylor & Sudbury, Blytheville, for appellee.

GEORGE ROSE SMITH, Justice.

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 U. 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 his wife and children 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 whisky. 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...