Ward v. George

• Court: Supreme Court of Arkansas
• Citation: 112 S.W.2d 30,195 Ark. 216
• Docket Number: 4-4872
• Parties: WARD v. GEORGE
• Decision Date: 20 December 1937

112 S.W.2d 30

195 Ark. 216

WARD v. GEORGE

4-4872

Supreme Court of Arkansas

December 20, 1937

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed, and case dismissed.

Warner & Warner, for appellant.

Hardin & Barton, Partain & Agee and Ralph W. Robinson, for appellee.

OPINION

SMITH, J.

Appellee was injured while riding with appellant in appellant's car, and recovered a judgment to compensate the injuries thus sustained, and this appeal is from that judgment.

There was no evidence tending to prove a wilful or wanton operation of the car, and the court so instructed the jury. The testimony was to the effect that appellant was guilty of ordinary negligence only. The sole question presented on this appeal is the one of fact, whether, at the time of appellee's injury, he was riding as the guest of appellant.

There are no substantial conflicts in the testimony, and the undisputed testimony of appellee is to the following effect: He and appellant were schoolmates and members of the same high school fraternity. They were close and intimate friends. Appellant organized a dance orchestra, in which he played either the clarinet or the saxaphone. Appellee was a member of this orchestra, and played the piano. Appellant was the manager and conductor of the orchestra, which played for school and other dances, for which service they were paid. The charge made for playing was paid to appellant, and by him divided among the other members of the orchestra. The members of the orchestra usually assembled at appellant's home to practice their numbers.

Appellee was injured April 2, 1933, at which time, as well as at the time of the trial, both were minors, appellant being 17 years old and appellee 19. There was to be held in Fort Smith, where both boys resided, a band contest, participated in by high school bands from various schools of the state. The contest was to be held on both Friday and Saturday, some of the bands playing one day, the others the next. Interspersed were certain contests between individual members of the bands. Appellant was a contestant both as a clarinet and saxophone player. He was to play one instrument one day, the other the next. About five days before the contest appellant asked appellee to play his accompaniments on the piano. There was no promise or expectation of compensation for this service. They met at appellant's home to practice, and were to have a final practice at the high school building on the morning of the contest before the contest began. The boys who were members of the bands from other cities were entertained in the hospitable homes of citizens of Ft. Smith, and two of these boys from Pine Bluff were being entertained at the home of appellant's mother. The afternoon before the contest appellant told appellee that he would come for him in his car early the following morning and have their practice. Appellant called for appellee about 7 a. m., and promised to drive appellee home after the contest. They drove to appellant's home, and found the visiting boys dressing. Appellant and appellee practiced for a while before breakfast. After breakfast, it was a little early to start for the high school, and the four boys got in the family two-seated automobile. Appellant and one of the visitors occupied the front seat. Appellee and the other visitor occupied the rear seat. They drove to the high school building, but did not stop. No one suggested that they stop, nor did any member of the party protest against continuing their drive. They drove across a bridge about half a mile from the place of the accident, and appellee asked appellant to drive slower. As they drove along, a cow came into the road. Appellant applied his brakes and the car skidded into a ditch and appellee was injured. It is unnecessary to discuss the extent of appellee's injuries, as no complaint is made that the verdict is excessive, if appellant is, in fact, responsible for the damages.

Appellee was returned to his home after the injury, and when appellant advised his mother of the accident she directed a physician to go at once to appellee's home. The physician went, and found it necessary to make only one visit. Appellant's mother paid for this service. She called appellee's home and inquired about him, and in the course of the conversation asked if appellee would be able to play appellant's accompaniments. Appellee's mother answered that she did not think he would, and there was no insistence that he should do so. Appellee insisted, however, that he was able to play, and he did in fact accompany appellant on the piano on both Friday and Saturday. This action was entirely voluntary, as was also participation in the drive which terminated in appellee's injury. No testimony was offered at the trial that appellant had ever employed appellee, and it appears quite certain that they were participating in the contest and in the practice incident thereto for their mutual pleasure and experience. It is true, however, that after defendant had closed his case in the trial below, the plaintiff was recalled and testified that in the preceding summer appellant had given him a blue suit of clothes, which appellant had outgrown. Although younger, appellant was the larger. Appellee admitted, however, that at that time he had not been asked to accompany appellant. They had not then commenced to practice for the contest, and there is nothing to indicate that the gift of the clothes was intended as compensation for services thereafter to be rendered. It was very clearly a disinterested act of friendship, and there was no testimony to support a contrary finding.

At the time of the accident appellant was driving to Wildcat Mountain with no purpose except to be hospitable to his visiting guests, and appellee was voluntarily sharing the pleasures of this...