De Bouchel v. Koss Const. Co., Inc.

• Decision Date: 07 July 1933
• Docket Number: 32276
• Citation: 149 So. 496,177 La. 841
• Court: Louisiana Supreme Court
• Parties: DE BOUCHEL v. KOSS CONST. CO., Inc., et al

149 So. 496

177 La. 841

DE BOUCHEL v. KOSS CONST. CO., Inc., et al

No. 32276

Supreme Court of Louisiana

July 7, 1933

Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes Jr., Judge.

Action by George De Bouchel against the Koss Construction Company Incorporated, and others.From a judgment striking out amended petition on motion of named defendants, plaintiff appeals.

Judgment amended and affirmed.

Richard A. Dowling, of New Orleans, for appellant.

A Griffen Levy, of New Orleans, for appellees.

OPINION

OVERTON, Justice.

This is an action for $ 50,000 damages, brought against the Koss Construction Company, Inc., and several others.The cause of action rests, in part, upon allegations showing that a conspiracy was formed by the Koss Construction Company, Inc., and the remaining defendants to take, by physical force, land belonging to the mother of plaintiff, the execution of which resulted in the unlawful arrest and imprisonment of plaintiff, while he was lawfully attempting to protect his mother's property, and in causing him to be confined in a narrow cell of the parish jail, in default of a greatly exorbitant bond, for ten hours, when finally, upon learning of his application to this court for relief, the bond was reduced at the instance of the conspirators to $ 500, which, upon being furnished, resulted in his release.It is alleged that the object of the conspiracy was to invade and take possession of a strip of land through the property of plaintiff's mother, without expropriating it, or paying compensation for it, for the purpose of building a highway, which the Louisiana highway commission was constructing through the Koss Construction Company, Inc., the commission's contractor.This part of the petition sets forth a cause of action for false imprisonment.The allegations of the petition clearly connect the Koss Construction Company, Inc., with the false imprisonment.Allegations to the foregoing effect having been set forth, there follows a second cause of action, which, it will be observed, does not show that the Koss Construction Company, Inc., was a party to the wrong there set forth.This cause of action, which is for malicious prosecution, as set forth, prior to amendment, reads as follows:

"That subsequent to the arrest herein, an information was filed against your petitioner by Leander H. Perez, district attorney of the parish of St. Bernard, who petitioner believes and therefore avers, is under the political domination and control of Dr. Louis A. Meraux, and that this information was filed at the request, and under the orders, of Dr. Louis A. Meraux, charging your petitioner with disturbing the peace on the public highway, which charge was untrue and unwarranted, and which charge was known to be untrue and unwarranted, illegal and unjustified at the time of its filing, and which charge was made against your petitioner maliciously without any probable cause, for the further purpose of persecuting and harassing him."

There then follows another article, reading:

"Your petitioner was tried on the said charge on July 7, 1931, by the district court in St. Bernard parish with Lawrence A. Bergeron as judge ad hoc, and that, after a hearing, there being no evidence whatsoever against your petitioner, a judgment of not guilty was rendered."

There then follows an allegation, alleging the damages for the malicious arrest, malicious imprisonment, and malicious prosecution to be $ 50,000, followed by a prayer for judgment in that sum.The petition was filed on July 5, 1932.

On October 3, 1932, the Koss Construction Company, Inc., appeared and filed a plea of prescription of one year against the demand for damages for false imprisonment, and also an exception of no cause or right of action as relates to the demand for damages for malicious prosecution.

On November 14, 1932, which was four months and nine days after the filing of the original petition, and more than one year and four months after plaintiff's acquittal, plaintiff filed an amended petition, the purpose of which was apparently to show a cause of action for malicious prosecution against the Koss Construction Company, Inc., and others, who are not presently before the court, in the event no cause of action was shown against them on the ground alleged in the original petition.The amended petition, after reaffirming all the allegations of the original petition, reads as follows:

"And now amplifying this paragraph [paragraph 10] of his original petition, plaintiff says: that the petitioner herein, after being released from jail, returned to his mother's property to aid and assist her in further resisting the unlawful acts of the conspirators, which...