Enders v. Boisseau

• Decision Date: 01 March 1900
• Docket Number: 13,383
• Citation: 27 So. 546,52 La.Ann. 1020
• Court: Louisiana Supreme Court
• Parties: S. J. ENDERS v. JOSEPH BOISSEAU

27 So. 546

52 La.Ann. 1020

S. J. ENDERS v. JOSEPH BOISSEAU

No. 13,383

Supreme Court of Louisiana

March 1, 1900

Rehearing refused.

APPEAL from the First Judicial District, Parish of Caddo -- Land, J.

D. T Land, for Plaintiff, Appellant.

John R Land and Leonard & Randolph, for Defendant, Appellee.

OPINION

WATKINS J.

The object of this suit is to recover of the defendant, the sum of ten thousand dollars damages for a malicious prosecution of the plaintiff, under the following alleged state of facts:

That on or about the 11th of November, 1898, defendant appeared before a justice of the peace and made affidavit that "on information furnished to him" plaintiff did "on or about the 10th day of November, 1898, unlawfully and feloniously shoot at one, Saymour, with intent to kill and murder him".

That under said charge, a warrant for his arrest was issued by the said justice of the peace, and that he was thereunder arrested by a constable and held in custody until he furnished an appearance bond, and which he did thereafter furnish, and was, thereupon, released from custody.

Petitioner represents that the grand jury which convened in the month of January, 1899, ignored said charges made by the defendant; and he was, thereupon, discharged by order of the district court from any further prosecution thereupon.

On the foregoing statement, the petition represents that the allegations made in said affidavit "are and were false, slanderous and libelous, and were made by the said Boisseau wilfully, maliciously and without probable cause"; and that he acted unlawfully, maliciously and without probable cause in causing petitioner to be arrested and falsely imprisoned on said charge.

Petitioner further represents that the plaintiff has been damaged "by the insult and affront to his good name and reputation in the community in which he lives, and for the vexation, humiliation, annoyance and outrage to his feelings, in the sum of five thousand dollars; and that, by being arrested and falsely imprisoned on said charges, he has been damaged, by being deprived of his personal liberty, and by the insult, and affront of his good name and reputation in the community in which he lives, and by the vexation, humiliation and annoyance to his feelings in the sum of five thousand dollars."

The answer of the defendant denies, generally and specially, all the allegations of the petition, except those admitted. He avers that he is an old man, the father of a family, and that during the month of November, 1898, he was reliably informed that plaintiff did maliciously cut and destroy hunting blinds, or stands, owned by one of his sons in Cross Lake, near Shreveport, and that the plaintiff had threatened to kill, and actually shot at the servant of his son, one Saymour Glass, with intent to kill him. He avers that in the interest of peace between his said sons and the plaintiff, and the rest of the community, he approached said plaintiff with a view of settling the controversy which had arisen out of said acts of the plaintiff, but that he refused to repair the injuries he had caused, "although he admitted he had destroyed the hunting, or shooting blind" of his son.

He further avers, "that with good motives, probable cause and with justifiable ends, he repaired to the office of a justice of the peace, and, representing the facts to him, was advised by said justice that the legal course was to cause a warrant to issue for the arrest of the plaintiff for malicious mischief, and for shooting at said Saymour Glass with intent to kill"; and that he "thereupon made the affidavit referred to in the petition."

He avers, further, that he had been reliably informed, and had good cause to believe it to be true, that plaintiff had maliciously destroyed the shooting blinds and shot at Saymour Glass; and that plaintiff admitted to him the commission of the first named crime prior to the arrest.

"Respondent avers, that the said Enders applied for a preliminary examination on or about November 18th, 1898, before Judge A. D. Land of the district court; and as a result of same, he was held to answer the action of the grand jury on both charges, and was refused a discharge.

* * * * * *

"Respondent further avers, that immediately thereafter, the said Enders pleaded guilty to the first charge of malicious mischief, and was sentenced to pay a fine and costs, as per record in No. 5908 D. C., criminal docket, hereto annexed.

"Respondent avers further, that when the other charge of shooting at Saymour Glass, (he, the said Enders having been arrested at the same time on both charges,) came before the grand jury, your respondent was not summoned and did not appear before the said grand jury, and is not advised as to the reason for its failure to find a bill.

"He avers that his course in this matter was dictated without malice, and that he had probable cause for the action taken; and that the same was in the interest of public order.

"He avers that the plaintiff is wholly unjustifiable in bringing this suit; and it is done to harass your respondent, and to cause him expense; and has damaged your respondent in the sum of five hundred dollars attorney's fees to defend this suit."

The premises considered, he prays to be hence dismissed with costs, and that he have judgment in reconvention against the plaintiff for the sum of $ 500.

Upon these issues, the case went to trial before a jury, who rendered a verdict in favor of the defendant, from which the plaintiff prosecutes this appeal.

In our conception, this is an action for the damages that are alleged to have resulted from a malicious prosecution, pure and simple, notwithstanding the dual character of the plaintiff's demand as set forth in his petition; because the alleged slanderous and libelous averments made in the affidavit of the defendant resulted in the arrest of the former under a warrant immediately afterwards, and thus constituted one continuous transaction.

The learned judge of the lower court entertained this view of the law, and thus instructed the jury in his charge -- the same being in writing and incorporated in the transcript -- and in support of his instruction he cites Dearmond vs. St. Amant, 40th Ann., 374, in which Mr. Justice Fenner in speaking for the court, made the statement of the law applicable to slander and malicious prosecution when combined, viz:

"The defamation of character alleged, consists merely in making public statements that plaintiff was guilty of a crime for which he was arrested and prosecuted upon the affidavit of defendant.

"Manifestly, the slander merged in the prosecution, and if the prosecution is not actionable, neither is the slander."

Evidently for a much stronger reason, were the alleged slander and libel merged into the prosecution of the plaintiff in the case under consideration, as the allegation of the petition is, that the slanderous and libelous utterances of which complaint is made, were set out in the affidavit made by defendant, whereas in the case quoted, they consisted "in public statements that the plaintiff was guilty of the crime for which he was arrested and prosecuted upon the affidavit," etc., entirely outside of the...