Parkerson v. Carrouth

• Decision Date: 31 January 1986
• Docket Number: No. 84-1991,84-1991
• Parties: Rita Susan PARKERSON, Executrix of Estate of Carl R. Parkerson, Deceased, Appellant, v. Don CARROUTH and Malone & Hyde, Inc. of Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1449

782 F.2d 1449

Rita Susan PARKERSON, Executrix of Estate of Carl R.

Parkerson, Deceased, Appellant, v. Don CARROUTH and Malone & Hyde, Inc. of Arkansas, Appellees.

No. 84-1991.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1985.

Decided Jan. 31, 1986.

Carl A. Crow, Jr., Hot Springs, Ark., for appellant.

Cyril Hollingsworth, Little Rock, Ark., for appellees.

Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Rita Susan Parkerson, Executrix of the Estate of Carl R. Parkerson, M.D., appeals the District Court's ¹ decision that Dr. Parkerson's civil rights action under 42 U.S.C. Secs. 1983, 1985 & 1986 did not survive his death during the pendency of the action. We affirm.

I.

This case arose out of an unsuccessful criminal prosecution charging Dr. Parkerson with violating 21 U.S.C. Sec. 841(a)(1) by distributing scheduled drugs not in the usual course of medical practice and for which there was no legitimate medical need. Even before his acquittal on all counts, Dr. Parkerson filed suit against Don Carrouth, a pharmacist and manager of Consumer's Discount Pharmacy, and Malone & Hyde, Inc., which does business in Garland County, Arkansas as Consumer's Discount Pharmacy. In his complaint, Dr. Parkerson alleged that Carrouth maliciously reported false information about Dr. Parkerson's prescribing practices to the Arkansas State Pharmacy Board and other persons connected with the Arkansas Diversion Investigation Unit; that Carrouth conspired with employees of Malone & Hyde, the Pharmacy Board, the Investigation Unit, and the Federal Drug Enforcement Administration to deprive Dr. Parkerson of his medical license and Controlled Substance Registration Certificate (CS registration) in violation of his rights "as guaranteed under the Civil Rights Act of 1964"; ² and that as a direct result of the alleged conspiracy, he was indicted, arrested, and imprisoned, and was coerced into surrendering his medical license and his CS registration. The complaint states claims for libel, slander, malicious prosecution, and intentional injury to Dr. Parkerson's medical practice, and seeks damages for his claimed monetary loss and for the anxiety and mental anguish he allegedly suffered.

Dr. Parkerson died before the case came to trial. Pursuant to Rule 25(a) of the Federal Rules of Civil Procedure, defendants filed a suggestion of death. Mrs. Parkerson responded and the District Court entered an order substituting her, as executrix of Dr. Parkerson's estate, as plaintiff in her late husband's action. Thereafter, defendants moved to vacate the order granting the substitution and moved to dismiss the action. The court granted those motions and entered judgment dismissing the case on the ground that the action did not survive Dr. Parkerson's death. Mrs. Parkerson then moved to alter that judgment and for leave to file a First Amended and Supplemental Complaint, which deleted the libel and slander claims. The District Court denied Mrs. Parkerson's motions, and this appeal ensued.

II.

This case involves the Arkansas survival statute and the Arkansas decisions construing it. ³ Statutes allowing the survival of actions were intended to modify the traditional rule that an injured party's claim was extinguished upon the death of either party. Robertson v. Wegmann, 436 U.S. 584, 589, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978); Thompson v. Estate of Petroff, 319 N.W.2d 400, 402-06 (Minn.1982); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts Sec. 125A (5th ed. 1984) [hereinafter cited as Prosser and Keeton ]. The origins of this rule are obscure, but may lie in the early common law's lack of any clear distinction between civil and criminal actions for tortious conduct. Thompson, 319 N.W.2d at 402; Prosser and Keeton, supra, at Sec. 126. See generally Note, Propriety of Expanding Massachusetts Survival Statute to Embrace Intentional Infliction of Emotional Distress, 4 W. New Eng.L.Rev. 261, 263-66 (1981) (brief discussion of the nonsurvivability of tort actions at common law). In any event, the initial question for our consideration is whether the District Court erred in finding that Arkansas law precludes the survival of this action.

Mrs. Parkerson argues that if this case were presented to the Arkansas Supreme Court, it would allow this action to survive Dr. Parkerson's death. Arkansas law broadly permits actions to survive when they are based on "wrongs done to the person or property of another". Ark.Stat.Ann. Sec. 27-901. ⁴ However, the statute also recognizes two exceptions to this general rule: "Nothing in the preceding section shall be so construed as to extend its provisions to actions of slander or libel." Ark.Stat.Ann. Sec. 27-902. Mrs. Parkerson contends that the statute plainly includes all claims asserted in the original complaint, except those for libel and slander, and in the First Amended and Supplemental Complaint.

The District Court, based on its examination of Arkansas law, held that Dr. Parkerson's action did not survive his death. The able and experienced District Judge's determination of this question of local law is entitled to considerable deference. See Gary Braswell & Associates v. Piedmont Industries, Inc., 773 F.2d 987, 989 n. 3 (8th Cir.1985); Freeman v. Schmidt Real Estate & Insurance, Inc., 755 F.2d 135, 137 (8th Cir.1985). Although we are not bound by the District Court's interpretation of state law and must independently assess the basis for that interpretation, see Kansas State Bank v. Citizens Bank, 737 F.2d 1490, 1496 (8th Cir.1984), our task is "not to adopt the construction we think most reasonable, but simply to review the district court's determination ...." Brown & Root, Inc. v. Hempstead County Sand & Gravel, Inc., 767 F.2d 464, 469 (8th Cir.1985).

The District Court relied primarily upon Arkansas Life Insurance Co. v. American National Life Insurance Co., 110 Ark. 130, 161 S.W. 136 (1913), in which the Arkansas Supreme Court considered the survival of an action alleging a conspiracy to destroy a business. The plaintiff had agreed to reinsure the policies of the Industrial Mutual Indemnity Co., and had assumed all the liabilities of Mutual Indemnity, which then ceased to exist. Arguing, in substance, that Mutual Indemnity had assigned to it all of Mutual's causes of action against third parties, the plaintiff brought suit on Mutual's alleged causes of action against the defendants. The Arkansas Supreme Court held that the alleged claims--slander, libel, malicious prosecution, wrongful interference with contracts of employment, and conspiracy to injure and destroy business--did not survive after Mutual Indemnity ceased to exist. The court held that the statutory language providing for the survival of actions "for wrongs done to the person or property of another" 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." Id. 161 S.W. at 138. The court added that Arkansas courts generally had construed the statutory language, which is the same as the statutory language in the present Ark.Stat.Ann. Sec. 27-901, not to include such injuries as malicious prosecution or conspiracies to injure another's business where no tangible personal property is affected. Id. The Arkansas Life decision thus is strong authority against the survival of the present action, which, stripped of the libel and slander claims that Mrs. Parkerson concedes do not survive, asserts claims for malicious prosecution and intentional injury to Dr. Parkerson's medical practice.

An earlier Arkansas case construing the Arkansas statute governing the survival of actions also supports the District Court's decision. In Ward v. Blackwood, 41 Ark. 295 (1883), the Arkansas Supreme Court held that statutory language identical to Ark.Stat.Ann. Sec. 27-901 included only actions involving "bodily injury, or damage of a physical character, but [did] not extend to torts which do not directly affect the person, but only the feelings or reputation, such as malicious prosecution." 41 Ark. at 298 (emphasis added). In striking the plaintiff's count for malicious prosecution, the court noted that to allow such an action to survive the victim's death would create the need at trial to inquire "into the personal character of a dead man and his innocence or guilt of a criminal offense." Id. at 299.

Mrs. Parkerson contends that no issue of character or of guilt or innocence is involved here because a jury acquitted Dr. Parkerson of all the criminal charges that were brought against him. We believe this is too narrow and simplistic a view of the evidence that the parties would elicit at trial. To prevail on the malicious prosecution claim, Mrs. Parkerson must show, among other things, that defendants had no probable cause to believe that Dr. Parkerson had committed or was committing a crime. See, e.g., Crockett Motor Sales, Inc. v. London, 283 Ark. 106, 671 S.W.2d 187, 189 (1984). Although Dr. Parkerson was acquitted, the acquittal does not mean that at the time defendants engaged in the acts alleged in his complaint there was not probable cause to believe that Dr. Parkerson had committed a crime. At trial, defendants doubtless would come forward with evidence on the issue of probable cause, as well as on the issue of malice, and much of this evidence likely would go to Dr. Parkerson's character and the nature of his conduct. Thus we believe that the concerns expressed in Ward are fully applicable to the present case.

Mrs. Parkerson argues that the Arkansas Supreme Court would change its construction of the statute in light of modern trends. We must reject this argument because she does not direct our attention to any case, and we are not aware of any, in which the Arkansas Supreme Court has overruled, reached a...