Johnson v. Pearce

• Decision Date: 24 April 1975
• Docket Number: No. 55574,55574
• Citation: 313 So.2d 812
• Parties: Jessie JOHNSON v. Dave L. PEARCE, Commissioner of the Louisiana Dept. of Agriculture.
• Court: Louisiana Supreme Court

Page 812

313 So.2d 812

Jessie JOHNSON v. Dave L. PEARCE, Commissioner of the Louisiana Dept. of Agriculture.

No. 55574.

Supreme Court of Louisiana.

April 24, 1975.

Rehearing Denied May 30, 1975.

Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for defendant-appellant.

Preston N. Aucoin, Ville Platte, for plaintiff-appellee.

BARHAM, Justice.

Plaintiff Jessie Johnson filed a 'Petition for Declaratory Judgment & Damages' against Dave L. Pearce, Commissioner of the Louisiana Department of Agriculture. One of the purposes for filing the lawsuit was to obtain a money judgment against the defendant, based upon a theory of malicious prosecution. In support of his claim Johnson cites several prior unsuccessful suits by Pearce as Commissioner to enforce the Bang's Disease (brucellosis) Eradication Laws against him. We conclude that there was probable cause for the suits previously instituted against Johnson and that there is no showing of malice; therefore plaintiff fails in his demand for damages.

Plaintiff's petition also seeks to have La.R.S. 3:2221 and 3:2223 declared unconstitutional, and concomitantly to have set aside the absolute quarantine against his cattle herd imposed under the authority of those statutes. We hold that the statutes are constitutional.

The defendant filed a general denial and reconventional demand for damages, asserting that plaintiff's suit was filed with malice and for revenge in the hope of disrupting the Department's policy of eradicating brucellosis in this State. We conclude that there is no merit in the reconventional demand.

FACTS

Johnson is the owner of a herd of purebred Charolais cattle in Evangeline Parish. On July 26, 1967 he sold one of his animals at the Alsobrook Guilbeau Stockyard in Opelousas, Louisiana. The animal was found to be a brucellosis reactor. Brucellosis, commonly called Bang's, is a disease in cattle which is transmissable to man as undulant fever.

A representative of the Livestock Sanitary Board, an agency of the Department of Agriculture, contacted Johnson on August 21 and requested that he pen his cattle for testing. He refused. On August 22 he was shown a copy of the report from the sale barn verifying that the animal was infected, and he was again urged to pen his cattle for testing. When he declined to do so, his herd was quarantined by the Livestock Sanitary Board.

On August 28, Johnson was officially notified by the Board to have his cattle penned for testing sometime prior to or on October 2, as required by La.R.S. 3:2221. Johnson refused to comply, and on November 7, 1967 the Commissioner of the Louisiana Department of Agriculture instituted suit seeking a mandatory injunction to compel Johnson to pen his cattle for testing for brucellosis infection.

The trial judge granted the injunction, but on appeal the Third Circuit decided that the Department did not prove Johnson's herd of cattle 'has shown evidence of brucellosis infection' as required by statute La.R.S. 3:2221. The court did conclude, however, that '(s)ince it appears that plaintiff may be able to present sufficient evidence to make out his case if his right to do so is preserved, we will dismiss this case without prejudice.' 213 So.2d 117, 119 (La.App.3rd Cir. 1968).

Accordingly, on January 14, 1969, the Commissioner caused a second suit to be instituted for a mandatory injunction to compel Johnson to pen his cattle for testing. At the trial, although the reports of the lab technician who actually performed the tests on Johnson's cattle were produced, the Department could not produce the lab technician. Since the lab technician was not available so that his qualifications as an expert could be examined, and Johnson was denied an opportunity to inquire into the procedure employed by the technician to determine the procedure's reliability, the trial judge ruled that the reports were not the best evidence. Without the evidence, the State had failed a second time to carry its burden to prove brucellosis infection in Johnson's cattle.

On October 27, 1969, the Livestock Sanitary Board again placed Johnson's herd under quarantine, this time classifying the quarantine as 'absolute.' Johnson was notified by the Board on December 2, 1969, to pen his cattle pursuant to the statutes. When he did not comply, a third suit was filed seeking a mandatory injunction under the authority of La.R.S. 3:2221(C) to compel him to pen his cattle for brucellosis testing.

In this case the trial judge found that, according to testimony, 1889 'herds' of cattle were in Evangeline Parish. The 'herd' classification was based upon statistics showing 1889 farms reporting cows and heifers. According to the statistical table, farms reporting and cattle herds were considered to be one and the same, regardless of the numer of cattle on each farm. The trial judge did not agree that this evidence established the correct number of herds in the parish to serve as a basis for the computation required by La.R.S. 3:2221(C). It was his opinion that 'herds' as used in the statute was not sufficiently defined. He also held that the words 'as determined by the latest official Census of Agriculture' as used in the statute required the production of the 1969 census instead of the 1964 census which was produced.

In his reasons for judgment, the trial judge wrote:

'While the Court is in sympathy with the aims and intentions of the statute and the overall good that would come to this defendant, to the parish and state as a whole, to have defendant's cattle, and other similarly situated, tested for brucellosis, it must apply the law as it finds it; the Court cannot legislate . . ..'

The injunction was denied, and on appeal the judgment was affirmed.

Thereafter, during April, 1970, Johnson sold three Charolais bull calves. These calves were over eight months old and were sold without a valid thirty day negative brucellosis test certificate required by regulations promulgated by the Livestock Sanitary Board. Based upon this action, the fourth suit was filed against Johnson on November 9, 1970, seeking an injunction to restrain violation of the Board's Regulation #5, which prescribes:

'It is a violation of this regulation to sell cattle, not governed by other regulations of the Livestock Sanitary Board, in Louisiana for any purpose other than immediate slaughter unless they are accompanied by a Valid 30-day negative brucellosis test certificate. NO CATTLE MAY BE SOLD FROM BRUCELLOSIS QUARANTINED HERDS EXCEPT AS PROVIDED FOR IN REGULATION 16.'

The trial judge was of the opinion that the decision in Pearce v. Johnson, 213 So.2d 117 (La.App.3rd Cir. 1968), which was the first suit filed, was controlling; and, in the absence of testimony establishing that Johnson's herd was infected, there was no basis for granting an injunction. The Board's appeal from this judgment was found to be premature because the trial court judgment had not yet been signed.

Finally, on September 17, 1971, the instant suit was brought and the record and proceeding of each of the foregoing suits is relied upon to support the claim of malicious prosecution.

Judgment was rendered in the trial court declaring La.R.S. 3:2221 and 3:2223 unconstitutional. As a result the quarantine was dissolved, and Johnson was awarded damages for malicious prosecution. The defendant appealed to the Third Circuit, and Johnson answered the appeal, seeking an increase in the award. However, the case was properly transferred to this Court on the ground that state laws had been declared unconstitutional, and this Court has exclusive appellate jurisdiction. La.Const. art. VII, § 10(2) (1921); La.C.C.P. art. 2162.

I.

In transferring this case to this Court, the Court of Appeal ordered: 'that this appeal be transferred to the Supreme Court. The transcript is being mailed this date to the Supreme Court. If the Supreme Court's filing fee is not paid (to the Supreme Court) within ten days from this date, the appeal shall stand dismissed.'

The Clerk of this Court advised counsel for the defendant that, based upon La.R.S. 13:4521, a state department or agency was not required by this Court to pay the $25 filing fee for lodging an appeal. Therefore the order of the Court of Appeal to the contrary was without effect.

II.

The defendant contends that there is no allegation in Johnson's petition charging malice on the part of the Department or its Commissioner, and its exception of no cause of action should have been maintained. Since on the merits we find no malice chargeable to the Commissioner or any agent of the Department or Board, the technicalities of the petition need not be considered.

Recently, in Robinson v. Goudchaux's, 307 So.2d 287 (La.1975), we reaffirmed the rule of law stated in Eusant v. Unity Industrial Life Ins. Ass'n, 195 La. 347, 196 So. 554 (1940), pertaining to suits for malicious prosecution as follows:

"An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff."

We apply these standards to the facts of this case. Furthermore, underlying these cases is the constitutional guarantee that 'All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.' La.Const. art. I, 6 (1921). This Court has repeatedly maintained, also, that "Actions of this sort have never been favored, and, in order to...