Meyers v. Edwards

• Decision Date: 20 December 1971
• Docket Number: No. 8659,8659
• Citation: 256 So.2d 337
• Parties: Louis MEYERS v. Frank M. EDWARDS, Jr.
• Court: Court of Appeal of Louisiana — District of US

Page 337

256 So.2d 337

Louis MEYERS v. Frank M. EDWARDS, Jr.

No. 8659.

Court of Appeal of Louisiana, First Circuit.

Dec. 20, 1971.

Hobart O. Pardue, Jr., Springfield, for appellant.

Jesse D. Lagarde, of Edwards & Lagarde, Amite, for appellee.

Before LOTTINGER, SARTAIN, and ELLIS, JJ.

ELLIS, Judge.

This is a tort suit in which plaintiff Louis Meyers is seeking damages from Frank M. Edwards, Jr., Sheriff of Tangipahoa Parish, arising out of a series of allegedly unlawful arrests.

Louis Meyers opereted a place of business under a license and beer permit issued to 'Louie Meyers' Bar'. He was arrested on five separate occasions for violation of R.S. 51:191 and 192, known as the Sunday Closing Law. The arrests took place on August 25, 1968 (twice), September 8, 1968, October 18, 1968, and February 16, 1969.

The suit was filed on February 16, 1970, and defendant filed a plea of the prescription of one year thereto. The plea was maintained by the trial court as to the four 1968 arrests, and judgment signed accordingly on January 28, 1971. On February 17, 1971, plaintiff, now represented by counsel, filed an amended petition, which alleged, for the first time, his trial and acquittal on the various charges filed against him.

Thereafter, trial was held on the merits of the case, and plaintiff's suit was dismissed. From that judgment, plaintiff has appealed.

The first specification of error is that the trial court erred in dismissing the suit as to the 1968 arrests on the plea of prescription of one year. Plaintiff alleges that his cause of action is for malicious prosecution as well as false arrest and that prescription does not begin to run on the former offense until the plaintiff is acquitted of the allegedly false charges.

In order to determine the propriety of the court's ruling, we must first determine the nature of the cause of action alleged.

In De Bouchel v. Koss Const. Co., 177 La. 841, 149 So. 496 (1933), the Court said:

'Although not always observed, the distinction between malicious prosecution and false imprisonment (or false arrest) is fundamental. But briefly, the essential difference between a wrongful detention for which malicious prosecution will lie, and one in which false imprisonment will lie, is that in the former the detention is malicious but under the due forms of law, whereas in the latter the detention is without color of legal authority.

'As respects the demand for damages for false imprisonment, the damage and the cause of action therefor arose on the same day, namely June 5, 1931, which is the day on which plaintiff was both falsely imprisoned and then released from prison. This suit was not filed until July 5, 1932, exactly thirteen months after the damage was sustained. Therefore, under articles 3536 and 3537 of the Civil Code, providing that damages resulting from offenses and quasi offenses prescribe in one year after the damage is sustained, this demand is prescribed. With respect of the second demand--the one for damages for malicious prosecution--the right to maintain a suit upon it arose on the termination of the prosecution favorably to plaintiff. Guidry v. Savoie, 164 La. 1081, 115 So. 277.'

In a suit for damages for false arrest for a misdemeanor, the plaintiff must prove that the arrest was made without lawful authority. Good faith on the part of the arresting officer is no defense, but he cannot be found liable so long as he has probable cause to believe a misdemeanor is being committed in his presence when he makes the arrest. Wells v. Gaspard, 129 So.2d 245 (La.App. 3 Cir. 1961).

In a suit for damages for malicious prosecution, 'the plaintiff must prove: (1) termination of the proceeding in favor of the plaintiff; and (2) lack of probable cause, and (3) malice on the part of the defendant.' Cox v. Cashio, 96 So.2d 872 (La.App. 1 Cir. 1957).

Examining the pleadings in this case in the light of the foregoing, we find that the original petition can only be construed to ask damages for false arrest. The trial and acquittal on the charges is not alleged, nor is malice on the part of the defendant, both of which are essential aspects of malicious prosecution. Prescription, therefore, began to run on the date of the arrest, and the suit was filed more than one year thereafter.

The amended petition, which does allude to the trial and acquittal, is based only on the February 16, 1969 arrest, and was filed on February 17, 1971, more than one year after the date of the acquittal, which is alleged to be in April, 1969. It could not be construed to revive the cause of action for the 1968 arrests, which had already prescribed when it was filed.

The only other question to be considered is...