Lang v. Deluca

• Decision Date: 01 January 1901
• Docket Number: 14,043
• Citation: 32 So. 329,108 La. 304
• Court: Louisiana Supreme Court
• Parties: EMILE JACQUES LANG v. MR. AND MRS. VINCENT DELUCA

32 So. 329

108 La. 304

EMILE JACQUES LANG v. MR. AND MRS. VINCENT DELUCA

No. 14,043

Supreme Court of Louisiana

January 1, 1901

APPEAL from the Civil District Court, Parish of Orleans -- Ellis, J.

Armand Romain and E. Howard McCaleb, for Plaintiff, Appellant.

Fenner Henderson & Fenner, for Defendants, Appellees.

OPINION

BLANCHARD J.

Plaintiff sues for and on behalf of his three minor children claiming damages of defendants in the sum of $ 6,000.00 for malicious prosecution, illegal arrest and defamation of character of the children, following from certain affidavits made by Mrs. DeLuca against them.

One of the children was a boy about twenty years of age, the other two girls about sixteen and seventeen years respectively.

Defendants lived in a house adjoining that of plaintiff. A fence separated the premises.

At the time the trouble arose Mr. DeLuca was absent from home. He is a sea captain. His wife, with five children, was in the house. One of the children was very ill and had been for weeks.

The inmates of the house had long been annoyed by a species of petty vandalism, practiced after nightfall, such as repeated and violent ringing of the doorbell, throwing stones and mud upon the front gallery, etc.

This finally resulted in Mrs. DeLuca appearing before the Recorder's Court in the City of New Orleans, where the parties resided, and making affidavit against Henry Lang and Emily and Viola Lang, children of the plaintiff, charging them with committing the depredations referred to on the evening of March 27, 1900.

The specific charge was that the Lang children did wilfully violate the city ordinance relative to malicious mischief.

The parties were not taken into custody, though warrants issued for their arrest. They were merely notified to attend in the court for trial. This they did, and the proof not being sufficient to convict, they were discharged.

Whereupon this suit for damages was instituted.

Among other allegations, it is charged that Mrs. DeLuca well knew at the time she made the affidavits that the same were false.

The defense was a general denial.

At the trial before the judge of the district court plaintiff's demand was rejected.

He appeals.

In his reasons for judgment the learned judge of the trial court held that any presumption of the want of probable cause, in preferring the charges, arising from the acquittal of plaintiff's children in the recorder's court, had been overcome by the evidence adduced before him. He was of the opinion the proof administered established probable cause for the proceeding taken against the children, and that the affidavits made were made in defense and protection of affiant and to secure her home against invasion and trespass, rather than from malicious motive.

"The question," said he, "is not whether plaintiff's children were guilty of the mischief of which they were accused. I can hold them innocent and still the case is against the plaintiff."

"There can be no doubt," continued he, "that defendant's family were greatly annoyed and disturbed by somebody while one of the children was sick. The defendant (Mrs. DeLuca), the physician in attendance on the sick child, the maid servant and Mr. Jardina (next door neighbor) prove this beyond dispute."

"The gate bell was frequently rung, and dirt, brick bats, etc., were thrown on the gallery. Somebody did it; but, when any inmate of the house appeared, the mischief doer was off and not of sight. It is proved that some of these offenders ran into the plaintiff's gate and disappeared."

We find these observations of the judge sustained by the evidence.

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