Cormier v. Blake

• Decision Date: 26 April 1967
• Docket Number: No. 1964,1964
• Parties: Percy CORMIER, Plaintiff-Appellee, v. Gordon BLAKE and Catholic Mausoleum Association, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 139

198 So.2d 139

Percy CORMIER, Plaintiff-Appellee, v. Gordon BLAKE and Catholic Mausoleum Association,

Defendants-Appellants.

No. 1964.

Court of Appeal of Louisiana, Third Circuit.

April 26, 1967.

Rehearing Denied May 18, 1967.

Dugas, Bertrand & Smith, by J. Nathan Stansbury, Lafayette, for defendants-appellants.

Simon, Trice & Mouton, by J. Minos Simon, Lafayette, for plaintiff-appellee.

Before TATE, SAVOY and HOOD, JJ.

HOOD, Judge.

This is an action for damages for defamation and malicious prosecution, instituted by Percy Cormier against Gordon Blake and Catholic Mausoleum Association. The defendants reconvened for damages, and plaintiff filed an exception of no right or cause of action to the reconventional demands. The exception was referred to the merits.

After trial, judgment was rendered by the trial court in favor of plaintiff and against defendant Blake for the sum of $3,000.00, and rejecting plaintiff's demands against the other defendant, Catholic Mausoleum Association. Judgment also was rendered maintaining the exception of no right or cause of action filed by plaintiff and dismissing the reconventional demands of defendants. Defendant Blake has appealed.

As a basis for his demands, plaintiff alleges: (1) That Blake, either individually or as agent for Catholic Mausoleum Association, willfully and maliciously signed an affidavit on March 13, 1964, charging plaintiff with the commission of a criminal offense, knowing that the affidavit was false, and that the signing of that affidavit caused plaintiff to be indicted by a grand jury and the return of the grand jury to be publicized in the local newspaper, all of which caused him great embarrassment, humiliation and injury although the criminal charge was later dismissed; and (2) that Blake slandered him on January 22, 1964, by making degrading, slanderous and insulting statements about him at a Parent-Teachers Association meeting.

Defendant Blake is the Executive Director of Catholic Mausoleum Association in Lafayette. During the latter part of the year 1963 he undertook to construct an addition to his home, and he employed plaintiff to work as a carpenter on that project. Cormier had been recommended for that employment by L. J. Aucoin, who was then superintendent of construction at the Mausoleum. Cormier accepted the employment by Blake with the understanding that after the repairs to the residence building had been completed Blake would consider employing him to work regularly for the Mausoleum Association.

Mrs. Blake was engaged in doing sculptural work at her home while Cormier was working there, and plaintiff offered to loan her a metal mortar mix box, owned by him, for her to use in mixing the materials which she needed for her sculpture work. She accepted his offer, and the mortar box was delivered to Blake's home by Cormier during the first part of November, 1963. Mrs. Blake used the box for at least three or four weeks in connection with her sculpturing. Later during the month of November, Blake indicated to Cormier that he was interested in purchasing the mortar box from him . The two parties then discussed the matter, but at the trial they gave entirely different versions as to what was said in that discussion. Blake contends that he purchased the mortar box from Cormier at that time, while Cormier denies that the box was ever sold.

Cormier's employment by Blake was terminated on Saturday, December 7, 1963, and in gathering up his tools and equipment the following Monday Cormier picked up the mortar box and took it home with him. Blake then demanded that the box be returned, and Cormier refused. The dispute as to the ownership of this mortar box led to the occurrence of the two incidents which gave rise to this suit.

On December 18, 1963, Blake wrote a letter to Cormier advising him that if he did not return the mortar box criminal charges would be filed against him. The box was not returned and on December 23, 1963, an affidavit was signed by Blake reciting that on or about December 18, Cormier had willfully, unlawfully and intentionally taken and used a movable, the mortar mix box, belonging to Catholic Mausoleum Association, without the consent of the association, in violation of LSA-R.S. 14:68. This affidavit was turned over to the district attorney, and the matter was then presented to the grand jury. Blake testified before the grand jury, and on March 13, 1964, the grand jury returned a true bill formally accusing Cormier of the unauthorized use of a movable. The report of the grand jury, showing that such an indictment had been made against Cormier, was published on the front page of the March 15, 1964, issue of the Daily Advertiser, a newspaper published in the city of Lafayette, with a circulation of over 21,000. On April 27, 1964, the district attorney entered a nolle prosequi of the case.

In order to determine whether Blake acted maliciously in filing charges against plaintiff, it is necessary for us to consider the negotiations which took place between Cormier and Blake relative to the mortar box and to determine whether the box was or was not sold to either of the defendants prior to the filing of criminal charges against plaintiff.

Blake testified that early in November plaintiff asked him if he would like to buy the mortar box for $10.00, that he informed Cormier that the Mausoleum Association would like to purchase it, and that they entered into an agreement at that time to the effect that the association would buy the box for that price. He stated that several days later, on November 26, 1963, he signed and delivered to Cormier a check for $10.00, drawn on the corporation, representing payment for the box. The check has never been cashed, however, and it was not introduced in evidence. No bill of sale was drawn up or executed, and Blake did not obtain a receipt for the payment. Blake testified that he fired plaintiff on Saturday, December 7, 1963, and that on the following Monday, at plaintiff's request, he permitted Cormier to borrow the mortar box for a day or two, upon the promise that he would return it promptly at the expiration of that time. Blake stated that he contacted Cormier by telephone several times on and after December 11, requesting the return of the box, and finally plaintiff promised to return it if Blake would give him a letter of recommendation. Blake wrote the letter of recommendation on December 13, and sent it to plaintiff, but the latter then informed him that he did not intend to return the box and that he had destroyed the check which had been given to him in order that there would be no evidence of a sale. Blake stated that he then consulted the district attorney and another attorney, and thereafter he wrote a letter to plaintiff on December 18, 1963, informing him that criminal charges would be filed against him if he did not return the box. The box was not returned, and Blake thereupon executed the above mentioned affidavit on December 23.

Blake's testimony is supported in many respects by that of his wife, who stated that she was present when an agreement was entered into between Blake and Cormier for the sale of the box early in November, and that she also was present when Blake delivered the check for $10.00 to Cormier on November 26. Lucy Francis, who was then an employee of Blake's, also testified that she heard the parties agree on a sale of the box for $10.00, but she did not witness the delivery of the check.

The defendants introduced in evidence some check stubs of the Mausoleum Association, one of which contains notations indicating that a check was issued to Percy Cormier on November 26, 1963, for 'Buying of and use of concrete trough.' The notation on this stub appeared to be somewhat irregular, when compared to notations on other check stubs. Blake explained, however, that the notation on this stub originally read 'Use of concrete trough,' but that such a notation was incorrect, so a few minutes after it was made he had his secretary insert the additional words 'Buying of and' on the stub. As we have already mentioned, the check itself was never produced and it is not in this record.

Cormier testified that about a week or two before he terminated his employment by Blake, the latter asked him if he could buy the mortar box, and Cormier replied that he would sell it if Blake would give him a regular job at the Mausoleum. He stated that he received no such promise from Blake at that time, and on December 7, 1963, he informed Blake that he would have to know then whether he would be given permanent employment by the association after the work on Blake's home was completed. Cormier testified that Blake refused to give him such a commitment, so he quit his job voluntarily on that day. He returned to Blake's residence on the following Monday, at which time he gathered up his tools and equipment, including the mortar box, and returned them to his own home. He stated that he did not sell or agree to sell the mortar box at any time, that he never received a check or any other payment from Blake or the Mausoleum Association for anything other than for wages, that he never destroyed a check that was issued to him, and that there was no discussion between him and Blake relative to the borrowing of the box by Cormier after he resigned his employment.

The record contains a true copy of the affidavit which was signed by Blake, a copy of the indictment returned...