Buisson v. Prestia

• Decision Date: 10 April 1950
• Docket Number: No. 19345,19345
• Citation: 45 So.2d 531
• Parties: BUISSON v. PRESTIA.
• Court: Court of Appeal of Louisiana — District of US

Page 531

45 So.2d 531

BUISSON v. PRESTIA.

No. 19345.

Court of Appeal of Louisiana, Orleans.

April 10, 1950.

Robert J. Pitard, New Orleans, for appellant.

Harry R. Cabral and William M. Campbell, New Orleans, for appellee.

REGAN, Judge.

Plaintiff, Harry Buisson, initiated this suit against the defendant, Joseph Prestia, for malicious prosecution, in the amount of $1,758.00 for damages, incurred when plaintiff allegedly suffered 'humiliation, mental anguish, annoyance' and his name was defamed by virtue of an affidavit filed by defendant in the Recorders' Court of the City of New Orleans, charging plaintiff with 'petty larceny'.

Defendant filed an exception of vagueness to plaintiff's petition which was overruled by consent and, subsequently, in effect, answered by way of a general denial and specifically pleaded that defendant 'made these charges on the advice of the Clerk of the Recorders' Court and that he made the charges with just and probable cause and without malice'. Defendant further answered and maintained that he believed that plaintiff had taken certain kitchen utensils, valued at $11.25, from his apartment.

From a judgment in favor of plaintiff awarding him damages in the amount of $758.00, defendant prosecutes this appeal.

The record reveals that plaintiff, a provisional police officer, rented, presumably from month to month, a furnished apartment from defendant, on September 11th, 1946, the contents of which were inventoried and the correctness thereof verified by plaintiff's signature. Plaintiff remained in the apartment until July 11th, 1947, at which time, he moved. Defendant being absent from the City, plaintiff surrendered the keys to defendant's sister. On or about July 15th, 1947, defendant returned to the City and a short time thereafter, the exact time being disputed by both litigants, the defendant caused the contents of the apartment to be reinventoried and allegedly ascertained that kitchen utensils, valued at $11.25, were missing from the apartment. While the record is vague, it appears that defendant experienced some difficulty in locating plaintiff's address, and approximately two weeks elapsed before he called at plaintiff's home on July 23rd, 1947, between seven and eight o'clock p. m. and attempted to effect a settlement. Defendant's version of this conversation is to the effect that plaintiff told him 'if you don't get away from here, I'm going to put you in jail'. Plaintiff's version is that he was not interested and advised defendant to leave. In any event, the conversation abruptly terminated and defendant proceeded to the Third Precinct Police Station, where he complained to Sergeant Reilly that plaintiff 'had moved from his apartment and that a number of kitchen utensils were missing', and that he had attempted to discuss the matter with plaintiff without success. Thereupon, Sergeant Reilly, apparently endeavoring to amicably effect a settlement between plaintiff and defendant, sent defendant, accompanied by two police officers, to plaintiff's home. The record is vague as to the nature of the conversation that ensued on this occasion, however, it does reflect that defendant and the two police officers, about one-half hour later, returned to the Third Precinct, and plaintiff, accompanied by his wife, voluntarily followed in his own car. Sergeant Reilly testified 'they more or less turned it over to me to handle. It seemed that they could not handle it outside or come to any agreement. So I heard both sides of the story'. Sergeant Reilly stated that defendant wanted plaintiff charged with the theft of the kitchen utensils, which he refused to do and advised defendant to see his lawyer or consult the affidavit Clerk of the Recorders' Court. Sergeant Reilly terminated his testimony by stating that plaintiff was not placed under arrest and was detained at the Third Precinct 'only to the extent of my interview with him. I would say ten or fifteen minutes'.

The following morning, on July 24th, 1947, defendant proceeded to the Municipal Court and there, in the presence of the Deputy Clerk, Louis E. Nelson, swore out an affidavit, charging plaintiff with petty larceny of kitchen utensils valued at $11.25. Plaintiff was subsequently arraigned and placed under bond. Defendant contends that he made this charge against plaintiff on the advice of the Deputy Clerk, Nelson, which contention is vehemently denied and disputed by Nelson. Subsequently, the charge of petty larceny was heard by the judge of the Municipal Court, and defendant testified (a transcript of the testimony is contained in the record) 'I can't say he stole them' and thereupon the case was dismissed by the Court.

The only question posed by virtue of the pleadings herein is one of fact and that is whether defendant, in initiating the charge of petty larceny against plaintiff in the Municipal Court, was actuated by malice and whether he acted without probable cause?

As to what constitutes probable cause in the sense in which the term is used in actions for malicious prosecution, many definitions, differing more or less rhetorically, or by virtue of a difference in the association of ideas, are to be found in the decisions of our Courts. A definition possessing the characteristics of mathematical precision, or sufficient to comply with every conceivable test, would be impossible to supply, inasmuch as the comprehensive legal idea manifested by the...