Graham v. Interstate Electric Co.

• Decision Date: 31 March 1930
• Docket Number: 27196
• Court: Louisiana Supreme Court
• Parties: GRAHAM v. INTERSTATE ELECTRIC CO

127 So. 879

170 La. 392

GRAHAM v. INTERSTATE ELECTRIC CO

No. 27196

Supreme Court of Louisiana

March 31, 1930

Appeal from Civil District Court, Parish of Orleans; Mark M Boatner, Judge.

Suit for malicious prosecution, brought by Warren C. Graham against the Interstate Electric Company. From judgment for plaintiff0, defendant appeals.

Reversed, and suit dismissed.

Lemle Moreno & Lemle, of New Orleans, for appellant.

Hugh M Wilkinson, of New Orleans, for appellee.

OPINION

LAND, J.

On September 27, 1922, F. B. Stern, vice president of defendant company, made an affidavit against plaintiff charging him, in his capacity as agent of said company, with the embezzlement of $ 2,192.49, in the parish of Orleans on June 28, 1922.

The case was tried before a jury in the criminal district court for the parish of Orleans, and plaintiff was acquitted of the charge on or about January 26, 1923.

Shortly thereafter, plaintiff instituted the present suit against defendant company for damages in the sum of $ 67,300, alleged to have resulted from the false accusation and malicious prosecution of plaintiff by defendant company.

The defense to the suit is that defendant company, in causing the arrest and prosecution of plaintiff, acted in good faith, without malice, and upon probable cause.

The present suit was tried by jury in the civil district court for the parish of Orleans and resulted in a verdict for $ 10,000 damages in favor of plaintiff.

From the judgment based upon this verdict, defendant company has appealed.

The affidavit was not made against plaintiff by defendant company until after all the documents and facts in the possession of the company had been submitted to its attorney, Gustave Lemle, and to Chandler Luzenberg, a leading criminal lawyer at the bar in the city of New Orleans.

Even after this precaution had been taken, approval of the prosecution on the charge of embezzlement was obtained from Robert H. Marr, district attorney of the parish of Orleans, upon a statement made to him by Chandler Luzenberg as to the contents of the various documents then in his possession.

It appears from the testimony of the attorneys employed by defendant company that each of them was of the opinion, from all the facts submitted to them by the company, that plaintiff was guilty of the crime of embezzlement, and that the facts placed in their possession by the company were the same as those brought out at the trial of plaintiff on the charge of embezzlement.

It is clear therefore that, in causing the arrest and prosecution of plaintiff, defendant company was not actuated by malicious motive.

The next question to be considered is: Did defendant company act upon probable cause? If so, then there is an end to the case, since in a suit for malicious prosecution the burden is on plaintiff to prove want of probable cause for prosecution against him, and malice upon part of the defendant. Both must concur. Womack v. Fudikar, 47 La. Ann. 33, 36, 16 So. 645; Mosley v. Yearwood, 48 La. Ann. 334, 19 So. 274; Carnes v. Atkins Bros. Co., 123 La. 26, 48 So. 572.

Probable cause does not depend upon the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting. Sandoz v. Veazie, 106 La. 202, 30 So. 767; Barton v. Kavanaugh, 12 La. Ann. 332, 334.

An acquittal, or even subsequent proof of complete innocence, is not sufficient evidence of want of probable cause. Grant v. Deuel, 3 Rob. 17, 38 Am. Dec. 228; Morgan v. I. C. R. Co., 117 La. 671, 42 So. 216; Godfrey v. Soniat, 33 La. Ann. 915.

In April, 1922, plaintiff accompanied F. B. Stern, vice president of defendant company, to New York City for the purpose of advising him in the purchase of some radio apparatus.

Plaintiff's compensation for his services consisted of nothing but the expenses of the trip. Stern did not agree to pay plaintiff any commission whatever on the goods purchased.

While in New York City, plaintiff received from Stern, vice president of defendant company, $ 6,500 in cash, and later $ 4,000 in cash on the same day, April 15, 1922, for the purpose of paying for radio apparatus, which plaintiff represented to Stern he had purchased for his company from John Firth & Co. at certain prices, which had been made known to Stern by plaintiff but which, in fact, were much higher than the actual prices at which the goods were bought.

As shown by the statement of John Firth & Co., found at page 27 of the transcript, plaintiff paid to that company on April 15th the whole of the $ 6,500, but only $ 1,800.25 of the $ 4,000 which he had received from Stern, vice president of defendant company. In other words, plaintiff paid to John Firth & Co. on April 15th only $ 8,300.25 of the $ 10,500 received in cash by him.

This statement shows that all of...