Lees v. Smith

• Decision Date: 16 October 1978
• Docket Number: No. 6590,6590
• Citation: 363 So.2d 974
• Parties: John Henry LEES, Plaintiff-Appellant, v. Donald C. SMITH, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 974

363 So.2d 974

John Henry LEES, Plaintiff-Appellant, v. Donald C. SMITH, Defendant-Appellee.

No. 6590.

Court of Appeal of Louisiana, Third Circuit.

Oct. 16, 1978.

Gravel, Roy & Burnes, T. Gerald Henderson, Alexandria, Thomas G. Wilson, Colfax, for plaintiff-appellant.

Bolen, Halcomb & Erwin, Roy S. Halcomb, Jr., Alexandria, R. L. Davis, Jr., Monroe, for defendant-appellee.

Before CULPEPPER, DOMENGEAUX, WATSON, FORET and CUTRER, JJ.

FORET, Judge.

This case involves an action for damages for an alleged false accusation of criminal conduct, abuse of process, and malicious prosecution. The suit was instituted on December 3, 1976, by John Henry Lees against Donald C. Smith.

On December 30, 1976, defendant Smith filed a third party demand against Commercial Union Insurance Company, who issued his homeowners insurance policy, alleging that the policy covered such "occurrences" and that the insurer had denied coverage and refused to afford Smith a defense against Lees.

Smith also instituted a malicious prosecution and/or defamation action against Lees by way of reconventional demand.

The principal demand was settled the morning of the trial when Commercial Union and Lees agreed to a compromise. The issues in the suit, however, were left open for adjudication, subject to the agreement that if it were decided in favor of Lees, the amount of damages would be that stipulated by Commercial Union and Lees.

The trial court rendered judgment in favor of Smith and against Lees for $3,250.00 which included punitive damages and attorneys fees. The third party demand against Commercial Union was dismissed by the trial court in its judgment of December 23, 1977.

Lees perfected this suspensive appeal from the above judgment, and Smith answered Lees' appeal seeking an increase in damages. Smith also perfected a devolutive appeal from the dismissal of his third party demand against Commercial Union.

The issues presented on this appeal are:

(1) Did the trial court err in finding that Smith had proven all the elements of malicious prosecution;

(2) Did the trial court err in failing to find Lees' judicial allegations were protected by qualified privilege;

(3) Did the trial court err in awarding punitive damages and attorney's fees;

(4) Did the trial court err in failing to find that Lees' petition and other statements had defamed Smith;

(5) Should the damages and attorney's fees awarded by the trial court be increased;

(6) Did the trial court err in dismissing a third party demand by Smith against Commercial Union Insurance Company.

FACTS

Lees and Smith are neighbors in a rural section of LaSalle Parish, which is "open range" for free-roaming cattle.

This controversy began on October 12, 1975, when Lees penned up a "stray" cow which had been grazing in his pasture with his cattle. Smith later proved the cow belonged to him.

Lees was unsuccessful in his attempt to determine the owner by having the Livestock Brand Commission check the number on the brucellosis test tag, which is referred to as a "bangs tag". Subsequently, on November 27, 1975, Lees placed a classified advertisement in the Jena Times which read:

"Notice: Taken up at my place. One head of cattle. Owner may have same by completely identifying animal, pay cost of feed and advertisement.

Phone 992-2807.

Henry Lees."

Smith saw the advertisement and drove past Lees' pasture where he saw an animal he believed to be his.

Lees and Smith had apparently had prior disagreements, and Smith, therefore, made no attempt to contact Lees on his own. Rather, he sought and received the aid of the LaSalle Parish Sheriff's Office. A deputy sheriff escorted Smith to Lees' home to inspect the cow. The deputy approached Lees, but was told he could view the cow only if he had a search warrant.

On November 28, 1975, a second deputy approached Lees and was also told that he must obtain a search warrant. The deputy then went to Smith's house where Lees shortly appeared and told the deputy that he could check the bangs tag number on the cow. This was done but it failed to match the numbers Smith said belonged to him.

Smith subsequently visited the district attorney on December 3, 1975. The cow was released on December 4, 1975. Smith gave a written statement to the district attorney on December 6, 1975. On or about December 16, 1975, Smith retrieved the cow.

The district attorney presented the matter to the grand jury which returned an indictment for criminal mischief against Lees on or about February 9, 1976. Lees and Smith both testified before the grand jury. Lees was tried and acquitted of the charge. Lees, in proper person, instituted his suit against Smith for malicious prosecution on December 3, 1976. Smith answered, and, by way of reconventional demand, brought suit against Lees on December 20, 1976; his third party demand against Commercial Union was filed on January 3, 1977.

As noted above, Lees' suit was compromised and did not come to trial; it is not before us on appeal.

Plaintiff-in-reconvention (Smith) urges defamation and malicious prosecution, as well as conversion on the part of Lees. Careful examination shows that the first two claims are actually two distinct offenses, both jurisprudentially recognized in Louisiana under Article 2315 of the Civil Code. Defamation (in the common law, libel and slander) is perhaps best described by Prosser as "an invasion of the interest in reputation and good name". Handbook of the Law of Torts, Section 111, at 737 (4th Ed., 1971). The essential elements in Louisiana for a successful action in defamation are: (1) defamatory words, (2) communication to persons other than the one alleging the action, (3) falsity, (4) malice, actual or implied, (5) resulting injury. Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958); Rougeau v. Firestone Tire & Rubber Co., 274 So.2d 454 (La.App. 3 Cir. 1973); Sas Jaworsky v. Padfield, 211 So.2d 122 (La.App. 3 Cir. 1968); Carter v. Catfish Cabin,316 So.2d 517 (La.App. 2 Cir. 1975).

This differs from malicious prosecution which, in a civil case, is the malicious commencement or continuance of a suit, without probable cause, for purposes of harassment. The Louisiana Supreme Court has defined malicious prosecution as being composed of six necessary elements:

"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 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 . . ."

Eusant v. Unity Industrial Life Insurance and Sick Benefit Association of New Orleans, Inc., 195 La. 347, 196 So. 554 (1940); Robinson v. Goudchaux's, 307 So.2d 287 (La. 1975); Johnson v. Pearce, 313 So.2d 812 (La. 1975).

The trial court held that Smith had fulfilled the requirement of proving the elements necessary for a successful suit in malicious prosecution. This Court disagrees and reverses.

While the trial court correctly cites the six necessary elements for such a suit apparently quoting from the Louisiana Supreme Court's listing in Eusant, supra, we believe that as regards item 3 of the above list, the trial court erred in allowing Lees' settlement with Smith's insurer to be a "bona fide termination in favor of the present plaintiff".

Actions of this kind are disfavored, and a clear case must be established. Johnson v. Pearce, supra; Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901).

As shown above in the recitation of the facts, Smith's insurance company, Commercial Union, settled with Lees on the morning of the trial; however, the record shows that Lees' suit was not dismissed until January 12, 1978. It is noted also that Smith's action for malicious prosecution was brought by way of answer and reconventional demand to Lees' initial suit. Although not objected to either at trial or upon appeal, malicious prosecution suits are not allowed to be brought by way of reconventional demand. Obviously, when such a suit is brought by way of reconventional demand, requirement number 3, termination of the original suit, has not been met at the time of demand. The policy behind this requirement is apparent: a party bringing a suit should not be made to defend his right to bring such until it is fully determined at trial that the original action was erroneously brought. The possible "chilling effect" on a citizen's constitutional right to seek redress in the courts is an important consideration. Spencer v. Burglass, 337 So.2d 596 (La.App. 4 Cir. 1976). After such judgment, the original party defendant may then bring an action for malicious prosecution when he then must prove all elements of his suit.

Nor is this Court able to find that Lees acted without probable cause in his initial civil suit against Smith (requirement number 4). Due to the somewhat extraordinary attention this one cow was given by all parties to this action culminating in Mr. Lees' arrest, apparently on information supplied by the plaintiff-in-reconvention (Smith), Mr. Lees had sufficient cause to believe the truthfulness of his allegations against Smith.

"Probable cause does not depend merely upon the actual state of facts, but upon the defendant's honest belief of the facts in making the charge against the plaintiff." Carter v. Catfish Cabin, supra. See also Jefferson v. S. S. Kresge Co., 344 So.2d 1118 (La.App. 3 Cir. 1977) and Sandoz v. Veazie, supra.

It is specifically noted that actions for malicious prosecution have never been favored in this State and "in order to sustain them a clear case must be established, when the forms of justice have been perverted to the gratification of private malice and the wilful oppression of the innocent". E...