Parks v. Winnfield Life Ins. Co.
Decision Date | 01 September 1976 |
Docket Number | No. 5567,5567 |
Citation | 336 So.2d 1021 |
Parties | Eric W. PARKS, Plaintiff and Appellant, v. WINNFIELD LIFE INSURANCE COMPANY et al., Defendants and Appellees. |
Court | Court of Appeal of Louisiana — District of US |
Riddle, Bennett & Ryland, by John T. Bennett, Marksville, for plaintiff and appellant.
Gahagan & Gahagan, by H. C. Gahagan, Jr., Natchitoches, for defendants and appellees.
Before HOOD, CULPEPPER and MILLER, JJ.
This is a suit for damages resulting from an alleged malicious prosecution. From a judgment sustaining an exception and dismissing his suit, plaintiff appealed.
The substantial issues on appeal are: (1) Where evidence is received without objection at a hearing on an exception of no cause of action in advance of trial of the case, should that evidence be considered in deciding the exception? (2) Does plaintiff's petition state a cause of action for malicious prosecution?
Plaintiff in this suit is Eric Parks, a 25-year old insurance salesman. The three defendants are: (1) Winnfield Life Insurance Company, (2) its president, Ben D. Johnson, and (3) its attorney, Russell Gahagan. Basically, plaintiff's petition alleges that defendants maliciously, and without probable cause, instituted criminal proceedings against him for theft and false swearing. It alleges further that a grand jury, after hearing the testimony of defendants Johnson and Gahagan, returned indictments against plaintiff on both charges. According to the petition, the charges against plaintiff were dropped by the Natchitoches Parish District Attorney before the commencement of a criminal trial. After the charges against him were dismissed, plaintiff filed this suit for malicious prosecution.
Defendants filed a pretrial exception labeled 'Exceptions of No Cause of Action and No Right of Action.' In this exception, defendants allege first that the grand jury indictment returned against plaintiff showed that there was probable cause for the criminal prosecution giving rise to this suit and, second, that plaintiff's petition failed to allege that a warrant issued for plaintiff's arrest prior to the grand jury indictment. At the hearing of the exceptions in the trial court, Russell Gahagan testified without objection by plaintiff. The trial court then sustained the exception and dismissed plaintiff's suit with this statement:
(Emphasis supplied)
At the outset we find it necessary to state the fundamental rules of law distinguishing the exception of no cause of action from the exception of no right of action. Recently our Supreme Court, in Hargroder v. Columbia Gulf Transmission Company, 290 So.2d 874 (La.1974), differentiated the two exceptions with this explanation:
The exception filed by defendants in this case is in truth an exception of no cause of action. The essential nature of this exception is not altered by either the label placed on it by defense counsel nor by the trial judge's reference to it was an exception of no right of action. Georgia Pacific Corp. v. B.G.M. Builders, 154 So.2d 78 (La.App.1st Cir. 1963). The allegations of the exception, the evidence received at its trial, the arguments of counsel and the rationale for the trial judge's ruling are all related to the sufficiency in law of plaintiff's petition to allow recovery by anyone against these defendants for malicious prosecution. No issue is raised as to whether this particular plaintiff has an interest in recovering for the malicious prosecution alleged. Therefore, the exception before us is one of no cause of action. There is no exception of no right of action before us for consideration.
LSA-C.C.P. Article 931 states in pertinent part that:
'No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.'
Despite the prohibition contained in Article 931, evidence was introduced by defendants at the hearing on the exception. Plaintiff did not object. The trial judge considered the evidence in sustaining the exception. The threshold question before us is whether the trial judge erred in considering this evidence.
There is a conflict in cases from the Courts of Appeal as to whether evidence admitted without objection at a hearing on an exception of no cause of action may be considered in deciding that exception. In Bielkiewicz v. Rudisill, 201 So.2d 136 (3rd Cir. 1967); Babineaux v. Southeastern Drilling Corporation, 170 So.2d 518 (3rd Cir. 1965); and Breaux v. Pan American Petroleum Corporation, 163 So.2d 406 (3rd Cir. 1964) this Court held such evidence could be considered. These and other similar cases cited therein are the progeny of Rheuarh v. Terminal Mud & Chemical Company, 213 La. 732, 35 So.2d 592 (1948). Cases holding to the contrary are Davenport v. Kaiser Aluminum and Chemical Corporation, 206 So.2d 526 (La.App.1st Cir. 1968); Potter v. Brein, 289 So.2d 309 (La.App.1st Cir. 1973); and State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La.App.4th Cir. 1975).
In the recent Supreme Court case of American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970) the Court unanimously held that only the well-pleaded facts in plaintiff's petition, or documents attached thereto or made a part thereof, could be considered in ruling on an exception of no cause of action. The Court took occasion to expressly overrule several prior Court of Appeal cases which had held that documents not attached to or made a part of plaintiff's petition could nevertheless be considered in deciding an exception of no cause of action.
In its opinion in American Creosote Company v. Springer, our Supreme Court used strong language in stating that LSA-C.C.P. Article 931 should be strictly construed as prohibiting the consideration of any evidence to support or controvert the objection that a petition fails to state a cause of action. Although that case does not address itself to the precise question presented in the present matter, of whether evidence introduced without objection at a pretrial hearing on an exception of no cause may be considered in deciding the exception, the decision does indicate that our Supreme Court favors a strict interpretation of Article 931.
Following the decision of the Supreme Court in American Creosote Company v. Springer, there were several Court of Appeal cases which applied it. In Borenstein v. Joseph Fein Caterers, Inc., 308 So.2d 396 (La.App.4th Cir. 1975) an exception of no cause of action was filed during the trial on the merits. Citing American Creosote Company v. Springer, the Court held that the evidence which had already been introduced at the trial on the merits could not be considered in deciding the exception.
exception of no cause of action was filed at the close of plaintiff's presentation of evidence at the trial on the merits. The trial judge referred the exception to the merits and then, on the completion of the trial, sustained the exception. On appeal the plaintiff argued the trial judge erred in sustaining the exception after evidence had been head . The Court of Appeal cited American Creosote Company v. Springer for its holding that under Article 931 the trial judge should not have considered the evidence. However, the Court resorted to LSA-C.C.P. Article 2164, which allows the appellate court to render any judgment which is just upon the face of the record, and then proceeded to decide the case on the merits, reasoning that since both parties had introduced all of their testimony it was proper to pass on the merits of the case rather than decide the exception of no cause of action. Several cases are cited in which a similar procedure was followed.
In Murphy Oil Corporation v. Gonzales, 316 So.2d 175 (La.App.4th Cir. 1975) an exception of no cause of action was filed after the appeal was lodged. The court held that an affidavit filed in the Court of Appeal and evidence taken in the trial court at the post-trial hearing of a motion to increase the amount of the appeal bond, could not be considered in deciding the exception of no cause of action. Although it was perhaps not necessary to the decision, the court cited Borenstein v. Joseph Fein Caterers, Inc., supra, as holding that in deciding the exception of no cause of action, the court could not consider any evidence, 'even if properly offered at the trial in support thereof.'
In an effort to resolve these apparent conflicts in the jurisprudence, and in particular to find an answer to the precise question presented in the present case, which is whether evidence introduced without objection at a pretrial hearing on an exception of no...
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...premised solely upon the commencement of a prosecution, terminating with the indictment. See e.g. Parks v. Winnfield Life Ins. Co., 336 So.2d 1021, 1029 (La.App. 3rd Cir.1976) (“Defendants also argue that a malicious prosecution action cannot be maintained against them after an indictment h......
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Wynne v. Rosen
...196 Iowa 745, 748-749, 195 N.W. 235 (1923). Green v. Warnock, 144 Kan. 170, 58 P.2d 1059, 173-174 (1936). Parks v. Winnfield Life Ins. Co., 336 So.2d 1021, 1028 (La.App.1976). Pugh v. Easterling, 367 So.2d 935, 938 (Miss.1979). Lamprey v. H.P. Hood & Sons, 73 N.H. 384, 385, 62 A. 380 (1905)......
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Vidrine v. United States
...premised solely upon the commencement of a prosecution, terminating with the indictment. See e.g. Parks v. Winnfield Life Ins. Co., 336 So.2d 1021, 1029 (La. 3rd Cir. 1976)("Defendants also argue that a malicious prosecution action cannot be maintained against them after an indictment has b......
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95-1377 La.App. 4 Cir. 1/19/96, Knapper v. Connick
...indictment is not justified. Our courts have rejected a presumption of probable cause based upon indictment, Parks v. Winnfield Life Ins. Co., 336 So.2d 1021, 1029 (La.App. 3d Cir.), writ refused, 339 So.2d 351 (La.1976), or even based upon a conviction on the allegedly baseless criminal ch......