Joyner v. Weaver

• Decision Date: 13 September 1976
• Docket Number: No. 5591,5591
• Citation: 337 So.2d 635
• Parties: Samuel W. JOYNER, Plaintiff-Appellant-Appellee, v. Herman L. WEAVER et al., Defendants-Appellees-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 635

337 So.2d 635

Samuel W. JOYNER, Plaintiff-Appellant-Appellee, v. Herman L. WEAVER et al., Defendants-Appellees-Appellants.

No. 5591.

Court of Appeal of Louisiana, Third Circuit.

Sept. 13, 1976.

Makar & Whitaker, by John B. Whitaker, Natchitoches, for plaintiff-appellant.

Edwin Dunahoe, Natchitoches, for defendant-appellee.

Before MILLER, WATSON and PETERS, JJ.

WATSON, Judge.

Plaintiff, Samuel W. Joyner, sued defendant, Herman L. Weaver, and his wife, Ethyl Rachal Weaver, for damages resulting from malicious prosecution and was awarded $500 by the trial court. Plaintiff has appealed, contending that the award is inadequate; defendants have appealed, contending that the trial court erred in finding liability, and, in the alternative, that the award is excessive.

Joyner holds a contractor's license for the city of Natchitoches, although he now resides in Sabine Parish.

On November 6, 1975, Mrs. Weaver, acting on behalf of her husband, signed a written contract with Joyner to replace the walls in both bathrooms of the Weaver home and to install a basin and closet in one of the baths. The agreed contract price was $735; Mrs. Weaver gave Joyner $250 by check at the time the contract was signed; the balance was to be paid upon completion of the job. Mrs. Weaver called Joyner the same evening and said she was thinking of stopping payment on the check, but it had been cashed. The following day, Joyner and his father-in-law, Bonneville, worked at the Weaver residence about seven hours on one of the bathrooms. Joyner did not return to the Weavers' to complete the job because of difficulties he said he had in obtaining materials. Mrs. Weaver testified that, after Joyner claimed difficulty getting materials, she ordered materials from the Natchitoches Lumber Yard (where Joyner could not obtain credit), which were delivered on November 13. Mrs. Weaver, according to her testimony, instituted several telephone calls to Joyner urging him to complete the work but received no satisfaction. Finally, on November 17, the operator informed her that Joyner's telephone had been disconnected.

Mrs. Weaver then spoke to the city marshall, a deputy sheriff and an assistant district attorney, either in person or by telephone. She learned through the deputy that Joyner had moved to the adjoining parish. On November 21 (15 days after the contract was made) Mrs. Weaver signed an affidavit charging Joyner with theft and a district judge issued a warrant for his arrest.

Joyner was arrested in Sabine Parish on Saturday morning and was transferred to Natchitoches Parish where he remained in jail until Monday. He was released when his wife and father-in-law borrowed $250 and paid Herman Weaver that amount at the Natchitoches Parish Courthouse. They also gave Weaver a paid receipt for $51 worth of materials Joyner had purchased in Many for the job. Mr. Weaver gave Mrs. Joyner $25, which he stated was a fair amount for the materials .

Following the payment, Mr. Weaver advised the Natchitoches Parish Sheriff that he had completed his business with Joyner and Joyner was released immediately from jail. The record does not reflect the disposition of the warrant but there is no dispute that the criminal prosecution was terminated at that juncture.

The issues are whether: (1) the defendants wrongfully instituted criminal proceedings against plaintiff in order to recover their money; and (2) the trial abused its discretion in the award of damages.

We have reviewed the issue of liability in the light of LSA-C.C. art. 2315 and the Louisiana jurisprudence on the tort of malicious prosecution.

The Louisiana jurisprudence is uniform in requiring three...