Harvey v. Eastman Kodak Co., 80-218

• Decision Date: 26 January 1981
• Docket Number: No. 80-218,80-218
• Citation: 610 S.W.2d 582,271 Ark. 783
• Parties: Tommy HARVEY and Vari-Tech Company, a corporation, Appellants, v. EASTMAN KODAK COMPANY, a corporation, Appellee.
• Court: Arkansas Supreme Court

Page 582

610 S.W.2d 582

271 Ark. 783

Tommy HARVEY and Vari-Tech Company, a corporation, Appellants, v. EASTMAN KODAK COMPANY, a corporation, Appellee.

No. 80-218.

Supreme Court of Arkansas.

Jan. 26, 1981.

Thaxton & Hout, Newport, for Harvey.

Laser, Sharp, Haley, Young & Huckabay, Little Rock, for Vari-Tech.

H. David Blair, Batesville, for appellee.

HAYS, Justice.

Appellants, Tommy Harvey and Vari-Tech Company, bring this appeal urging that the court below erred in dismissing the direct complaint of the plaintiff, Harvey against the third-party defendant, Eastman Kodak, under Arkansas Rules of Civil Procedure, Rule 12 (b)(6) for "failure to state facts upon which relief can be granted." The appellants also urge that the trial court erred in dismissing the third-party complaint of the defendant, Vari-Tech, against Kodak under the doctrine of forum non conveniens. We find no error in the court's dismissal of the two complaints and, therefore, affirm the decision.

Procedurally, the case below is rather complex, but here we will discuss only those portions at issue in this appeal. On or about June 11, 1979, Tommy Harvey hired another party to perform surveys of lands in Jackson County, Arkansas, in anticipation of constructing levees necessary for the production of rice. Harvey's suit alleged that the work was done improperly due to the defective condition of the surveying equipment used, which was manufactured by the defendant, Vari-Tech, causing damage to the plaintiff in the form of lost profits and expenses.

Vari-Tech filed a third-party complaint against Kodak alleging that any defective condition of the surveying equipment was caused by the negligence of Kodak in supplying defective optical elements glue used in the equipment. In response, Kodak filed a motion to dismiss under the doctrine of forum non conveniens, both Kodak and Vari-Tech being foreign corporations.

Subsequently, Harvey filed a direct complaint against Kodak, the allegations of which are more thoroughly discussed below. Kodak responded to the direct complaint of Harvey with a motion to dismiss for "failure to state facts upon which relief can be granted." Rule 12 (b)(6), A.R.C.P. The trial court then granted both motions.

As to the direct complaint of Harvey against Kodak, we agree with the trial court that the complaint is insufficient and may be properly dismissed under Rule 12(b)(6).

The direct complaint of Harvey against Kodak alleges that Kodak "manufactured a glue" for the optical equipment used, "that due to a failure of said glue" lands were surveyed in a negligent manner by another party. And, "that due to the negligence" of Kodak, plaintiff suffered the damages enumerated. The allegations of the complaint are merely conclusions on a point of law; they do not state facts upon which relief can be granted. Rule 12(b)(6) provides for the dismissal of a complaint for "failure to state facts upon which relief can be granted." (Emphasis supplied.)

Since Rule 12(b)(6) tests the sufficiency of the pleadings, it is necessary to read it in conjunction with Rule 8, which deals with the contents of the pleading. Rule 8 provides:

A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief, .... (Emphasis supplied.)

This is a significant departure from the Federal Rules of Civil Procedure, on which the Arkansas rules are based. Unlike our own rule, Rule 12(b)(6) of the Federal Rules provides for dismissal of a complaint for "failure to state a claim upon which relief can be granted." (Emphasis supplied.) And Rule 8 of the F.R.C.P. provides:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or a third-party claim, shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief.... (Emphasis supplied.)

These two rules establish for the federal courts what is commonly known as "notice pleading." See, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Arkansas has not adopted this view of pleading. In drafting the new Rules of Civil Procedure, the Committee offered language identical to that contained in the federal rules. However, this court deliberately rejected the proposed language in favor of the language contained in the rules as now written. See, Cox and Newbern, The New Civil Procedure: The Court that Came in from the Code, 33 Ark.Law.Rev. 1 (1979). Since Harvey's complaint against Kodak failed to comply with Rule 8's requirement of "a statement in ordinary and concise language of facts showing that the pleader is entitled to relief," the complaint was properly dismissed under Rule 12(b)(6) for "failure to state facts upon which relief can be granted." However, because this is a products liability case, we point out that the deficiency of the direct complaint of Harvey against Eastman Kodak lies entirely in its failure to meet the requirements of Rule 8 with respect to the allegations of negligence, the only cause of action asserted. The pleading does not purport to sound in strict liability or warranty, which are not in any way dependent upon negligence. Fruman and Friedman, Products Liability, Vol. 3A, Ch. 16, Pleading and Practice, # 46.02(3), p. 74. Thus, whether Harvey could have properly stated a cause of action against Eastman Kodak under those theories of liability is not before us.

Under this same point, Harvey argues that even if the direct complaint against Kodak is insufficient, any defect is cured by the third-party complaint of Vari-Tech against Kodak, upon which Harvey is entitled to rely. In support of this theory, he cites us to Larson Machine,...