Headrick v. Wal-Mart Stores, Inc.

• Decision Date: 02 November 1987
• Docket Number: WAL-MART,No. 87-161,87-161
• Citation: 293 Ark. 433,738 S.W.2d 418
• Parties: Billy D. HEADRICK, Appellant, v.STORES, INC., Appellee.
• Court: Arkansas Supreme Court

Page 418

738 S.W.2d 418

293 Ark. 433

Billy D. HEADRICK, Appellant, v. WAL-MART STORES, INC., Appellee.

No. 87-161.

Supreme Court of Arkansas.

Nov. 2, 1987.

Boyce R. Davis, Lincoln, for appellant.

George R. Rhoads, Rogers, for appellee.

NEWBERN, Justice.

The appellant, Billy D. Headrick, filed a complaint against the appellee, Wal-Mart Stores, Inc., in which he asserted Wal-Mart's liability to him for malicious prosecution, false arrest, and libel. The complaint arose from Mr. Headrick's having been arrested for giving a Fayetteville Wal-Mart store a check which was returned for insufficient funds. The circuit court awarded a summary judgment in favor of Wal-Mart, and we affirm.

The undisputed facts are as follows. Mr. Headrick gave Wal-Mart a check for $168.86 in December, 1984. On January 3, 1985, the check was returned to Wal-Mart by the bank due to insufficient funds in Mr. Headrick's account. Thereafter, Wal-Mart sent Mr. Headrick a certified mail notice, which was received on January 24, 1985, stating that if payment were not received within five days, the check would be turned over to the "proper authorities." On January 29, 1985, Mr. Hulett, a Wal-Mart employee, gave the Fayetteville prosecutor an affidavit which set out the facts with respect to the check. On February 2, 1985, Mr. Headrick went to the Wal-Mart store and paid the obligation for which the check was given. On February 11, 1985, the prosecutor issued a warrant for Mr. Headrick's arrest, and the warrant was the basis of his arrest on April 11, 1985.

From the pleadings, discovery responses, and affidavits considered by the court two possibly disputed facts emerge. First, Mr. Headrick asserts that "immediately" after receiving the notice on January 24, 1985, he called the Wal-Mart store and explained that he would pick up the check upon receiving his disability check the first of the month, presumably February 1, 1985. Discovery responses show that Mr. Headrick cannot give the name of the person to whom he spoke and that Wal-Mart, although it keeps records of all contacts with respect to dishonored checks, had no record of the call. Second, Wal-Mart asserted, and Mr. Headrick refused its request to admit, that Mr. Hulett did nothing to further the arrest or prosecution of Mr. Headrick other than give the affidavit to the prosecutor.

1. Malicious Prosecution

Mr. Headrick contends that the question whether he called Wal-Mart about the check after he was notified it was bad goes to the question of Wal-Mart's good faith in having him prosecuted. He notes, but does not suggest anything presented by him to controvert it, Mr. Hulett's contention that nothing was done by Wal-Mart to further Mr. Headrick's arrest or prosecution other than giving the affidavit to the prosecutor. He also notes that the record does not show he was ultimately prosecuted with respect to the check.

The last of these points displays the problem with Mr. Headrick's malicious prosecution claim. For him to prevail he must allege and prove that he was prosecuted and that the prosecution resulted in a decision in his favor. Farm Service Cooperative Inc. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979); Coffelt v. Gordon, 239 Ark. 619, 390 S.W.2d 633 (1965). Having failed to set forth facts upon which a claim for malicious prosecution could be based, Mr. Headrick cannot complain that the court found no disputed facts in relation to that claim and granted summary judgment. See Joey Brown Interest, Inc. v. Merchants National Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985).

2. False Arrest

"False arrest" is a name sometimes given to the tort more generally known as "false imprisonment." W. Prosser and W. Keeton, The Law of Torts, at 47 (5th ed. 1984). While our cases setting out the elements of false imprisonment were aided by a since-repealed statute, they nonetheless have used a fairly standard definition, (see Restatement (Second) of Torts, § 35, (1965)), that is, the unlawful violation of the personal liberty of another consisting of detention without sufficient legal authority. Moon v. The Sperry and Hutchinson Company, 250 Ark. 453, 465 S.W.2d 330 (1971); Faulkinbury v. U.S. Fire Insurance Company, 247 Ark. 70, 444 S.W.2d 254 (1969).

In the Moon case a store employee thought the plaintiff was carrying a gun in the store and summoned the police who arrested the plaintiff and searched him, finding no gun. In the ensuing false imprisonment case, we held it was proper for the trial court to hold as a matter of law that the employee's actions were insufficient to constitute false imprisonment. Quoting our opinion in McIntosh v. Bullard, Earnheart & Magness, 95 Ark. 227, 129 S.W. 85 (1910), we said: "Where a person does no more than to give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for the acts done under a warrant which the officer issues on said charge." 250 Ark. at 455, 465 S.W.2d at 331. This same point is made in the commentary to Restatement (Second) of Torts, § 45A, (1965), which says, in part: "One who instigates or participates in a lawful arrest, as for example an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it, may become liable for malicious prosecution, ... or for abuse of process, ... but he is not liable for false imprisonment, since no false imprisonment has occurred." Mr. Headrick's denial that Mr. Hulett did no more than give his affidavit to the prosecutor was not sufficient to respond to Mr. Hulett's...