Autry v. Lawrence, 85-44

• Decision Date: 16 September 1985
• Docket Number: No. 85-44,85-44
• Citation: 696 S.W.2d 315,286 Ark. 501
• Parties: Carl AUTRY, Appellant, v. John LAWRENCE, Appellee.
• Court: Arkansas Supreme Court

Page 315

696 S.W.2d 315

286 Ark. 501

Carl AUTRY, Appellant, v. John LAWRENCE, Appellee.

No. 85-44.

Supreme Court of Arkansas.

Sept. 16, 1985.

Rehearing Denied Oct. 21, 1985.

Welch & Devine by Morgan E. Welch, N. Little Rock, for appellant.

Mark Stodola by Victra L. Fewell, Asst. City Atty., Little Rock, for appellee.

NEWBERN, Justice.

This is a malicious prosecution case. The judge directed a verdict and granted a summary judgment to the appellee at the end of the appellant's case for two reasons. First, he found no evidence to show a lack of probable cause and no evidence showing malice. Secondly, he found that the appellee was a Little Rock City police officer acting in his official capacity when he presented evidence to the prosecutor which resulted in the appellant's arrest and thus the defendant was immune from this tort action under Ark.Stat.Ann. § 12-2901 (Repl.1979). Either of these reasons would have been sufficient to support the judgment in favor of the appellee. We affirm on the basis of immunity.

The appellant's argument is that the evidence showed that when the appellee went to the prosecutor with evidence that the appellant had committed theft by deception he did not present all of the evidence in his possession. He argues further that there can be no immunity because the duty to present all known, relevant evidence to the prosecutor is one the appellee had in common with all other people. The basis of this argument is found in Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979), and Kelly v. Wood, 265 Ark. 337, 578 S.W.2d 566 (1979). In those cases we denied writs of prohibition which had been sought to prevent circuit courts from proceeding with trials resulting from allegations of negligence against state policemen involved in traffic accidents. At issue there was whether the immunity of the state required the claims against the state troopers be brought before the claims commission. We held the immunity of the state did not extend to those state troopers because their alleged acts violated a duty they shared with all other people, i.e., the duty not to drive a vehicle negligently, despite the fact that the accidents occurred while the troopers were on duty.

In Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983), we reviewed the history of immunity of municipalities and their agents and employees and concluded that § 12-2901 immunized them when they were accused of negligence in the performance of their official duties. The source of immunity for municipalities and their agents and employees is different from that for the state and its agents and employees. The latter is Ark. Const. art. 5, § 20. However, that may be a distinction without a difference, as our decision in Grimmett v. Digby, supra, recited Ark. Const. art. 2, §§ 7 and 15, which provide respectively for the right to a jury trial in cases at law and for a remedy for every wrong. We interpret the case, however, as having been based...