110 Ark. 130 | Ark. | 1913
(after stating the facts). The injuries and resultant damage to appellant, by reason of the various wrongful acts of conspiracy set forth in its complaint, down to the sixteenth paragraph thereof, were all wrongs and injuries done to the Mutual Indemnity Company. Appellant contends that it was entitled to recover damages for these alleged injuries by reason of its contract with the Mutual Indemnity Company, whereby, in consideration of the reinsurance by appellant of the mutual company’s policies and the assumption by appellant, of all its risks and obligations, together with all debts and liabilities of the mutual company, the latter was to tranfer to appellant “all existing and outstanding contracts of insurance, together with all assets. ’ ’
The appellant is mistaken in assuming that this court held that this contract was valid as a merger agreement whereby the assets of the mutual company should pass to the appellant company in the case of Freemyer v. Industrial Mutual Indemnity Co., 101 Ark. 61. We expressly refrained from deciding that question in the above case, saying, “We do not think the general subject of the power of a corporation of this kind to merge itself' into or consolidate with another or organize itself into a new corporation is involved.” It was not necessary in that case to determine as to whether a mutual industrial insurance company, under our statute, could, by contract, merge itself and pass all of its assets into another company; nor do we think it necessary to decide that question in this case, for, conceding that the assets of the Industrial Mutual Indemnity Company passed or were assigned by it to the appellant under a valid contract, the alleged injuries set up in appellant’s complaint as suffered by the Industrial Mutual Indemnity Company, down to paragraph 16, were not such assets as could be assigned under our statute.
The injuries as alleged to the Industrial Mutual Indemnity Company were all torts in the nature of slander, libel, malicious prosecution, fraudulent conspiracy to injure and destroy business, etc. Actions growing out of wrongs of this nature would not survive, but were peculiar to the Industrial Mutual Indemnity Company and died when it went out of existence. The causes of action that survive are assignable; those that do not survive are not assignable. 4 Cyc. 23. Now the causes of action that survive are those “for wrongs done to the person or property of another.” Kirby’s Digest, § 6285. The statute means injuries of a physical character to actual, visible and tangible property, and not to property rights or interests which in their nature are invisible and intangible. For example, if one injures another in his reputation or business by libel and slander, these, by the express terms of the statute (Kirby’s Digest, § 6286), do not survive. And the statute, § 6285, supra, by analogy has generally been construed not to include injuries or wrongs of a kindred nature, such as malicious prosecution, conspiracies to injure another’s business and interests in property, to cheat, defraud, etc., where no visible personal property as such is affected. To illustrate further, where there is an injury by trespass to tangible personal property, same being damaged or destroyed, or where same is converted, or where, through negligence, the visible personal property of another is injured or destroyed, in all such cases the cause of action for damages resulting from such wrongs or injuries survive and are assignable. But injuries that are not of a physical nature, and that do not operate upon or affect tangible personal property, as distinguished from property rights or interests, do not survive, and are not assignable. Davis v. Nichols, 54 Ark. 358; John W. Farwell & Co. v. Wolf et al., 96 Wis. 10, 70 N. W. 289, and cases therein cited. It follows that whatever causes of action the Industrial Mutual Indemnity Company had against appellee, these causes of action (conceding that same were well pleaded) grew out of torts that were not of a physical character and which did hot injure the Industrial Mutual Indemnity Company’s tanglible property. But, on the contrary, the torts, as set forth, were in the nature of conspiracies to injure and destroy the Industrial Mutual Indemnity Company’s property rights and interests in business by libel, slander, malicious prosecution, fraudulent representations, and kindred wrongs. Causes of action for these wrongs did not survive, and were not assignable.
The allegations contained in the sixteenth, seventeenth and eighteenth paragraphs of the complaint do not state any cause of action against the appellees. In the sixteenth paragraph, there is a general allegation that “defendants, through malice and by means of false and fraudulent promises of compensation and promotion, had interfered with the employees of plaintiff;” that “defendants had succeeded in securing said employees to leave plaintiff in breach of contract and enter the employment of defendant.” These allegations are not sufficient to state a cause (if action against appellees for causing the employees of appellant to violate their contract of employment with it. No specific contract is set up. The names of no employees are mentioned, the means and methods used are not specified. No facts are stated that discover a cause of action. The same may be said as to the allegations concerning policy holders. The seventeenth paragraph alleges that “through defendant’s wrongs” Nelson “joined said conspiracy and brought suit against plaintiff in the sum of $50,000.” But the “wrongs” alleged are not set forth. The eighteenth paragraph does not state a cause of action against appellees. It charges that “Nelson and other agents began another canvass of plaintiff’s policy holders, telling that plaintiff had another big suit against it,” etc. If this allegation was intended to staté a cause of action for slander of appellant’s business or malicious prosecution of appellant in furtherance of a conspiracy, it falls far short of stating it. Such general allegations as contained in the above paragraphs could only be met by general denials, and no issue could be joined by such pleadings.
In testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it. “If the facts stated, together with every reasonable inference therefrom constitute a cause of action, then the demurrer should be overruled.” Cazort & McGehee v. Dunbar, 91 Ark. 400, and cases cited. But the complaint here does not state any facts to show cause of action. Therefore, the complaint can not be amended on motion to make more specific. It is not a statement of a cause of action defectively, but a failure to state a cause of action at all. Goodwin v. Robinson, 30 Ark. 536.
The judgment sustaining the demurrer and dismissing the complaint is correct, and is therefore affirmed.