Sibley v. Lay

• Decision Date: 01 October 1892
• Docket Number: 344
• Citation: 11 So. 581,44 La.Ann. 936
• Court: Louisiana Supreme Court
• Parties: ROBT. M. SIBLEY v. J. FRANK LAY

11 So. 581

44 La.Ann. 936

ROBT. M. SIBLEY v. J. FRANK LAY

No. 344

Supreme Court of Louisiana

October 1, 1892

APPEAL from the Second District Court, Parish of Bossier. Watkins, J.

W. U Richardson, A. J. Murff and Joannes Smith, for Plaintiff and Appellee.

J. A Snider and Wise & Herndon, for Dependant and Appellant.

OPINION

McENERY J.

This is a suit for damages for defamation of character. The plaintiff alleges in his petition "that J. F. Lay, being instigated by malice against petitioner and in wanton disregard of all social duty, and with the view to defame petitioner and to bring him into disrepute and dishonor, did falsely, maliciously and publicly, at divers times and to divers persons, accuse your petitioner of being implicated in breaking and entering, on or about April 30 1889, the store house of the said Lay at Borden Station, in the parish of Bossier, with intent to steal."

The defendant, Lay, for answer, pleads justification and want of malice.

There was a verdict and judgment for the plaintiff for $ 500 damages, from which the defendant appealed.

Having admitted that he made the charge, the burden of proof that he acted upon probable cause, in honest belief, based upon reasonable grounds, rests upon the defendant. 34 An. 1265; 36 An. 461; 38 an. 161.

The defendant's store was broken into on April 30, 1889. He charged the plaintiff, a former clerk, with having committed the burglary and larceny in conjunction with others. These declarations were made openly and publicly, and, although a criminal prosecution was not instituted for some months afterward, the charges were made in the course of investigation to ascertain the guilty parties. It was the defendant's store which was entered, and it would be unreasonable to suppose that, in conducting the investigation, he should keep absolutely silent as to the person to whom the evidence would point as the guilty party. A term of court intervened without the fact of the burglary being brought to the attention of the grand jury, and in the meantime no affidavit had been made before a justice of the peace denouncing the plaintiff for having committed the crimes of burglary and larceny. Some months afterward, in the month of February following, after the institution of this suit, the defendant brought the matter to the attention of the grand jury, and a bill was found against plaintiff for breaking into defendant's store. The plaintiff was tried and acquitted. The slander thus became merged in the prosecution, and if the prosecution is not actionable, neither is the slander. Dearmond vs. St. Amant, 40 An. 374.

In the case just referred to, as in the case at bar, the defendant moved cautiously, and refused to prosecute, although urged to do so by the district attorney, until he had made further investigation into the charge urged against him by the plaintiff. We do not think the delay in bringing the offense to the attention of the grand jury can be urged as a part of the proof of the want of justification and malice in the alleged defamation. The civil suit was tried after the acquittal of the plaintiff, which resulted in a mistrial. At a subsequent trial there was the verdict and judgment for the plaintiff which was appealed to this court.

We have carefully reviewed the testimony in the record. We are convinced that the defendant acted without malice, and from an honest belief based upon reasonable grounds. Vinas vs. Ins. Co., 33 An. 1266.

The defendant, when informed of the burglary in the morning, made an immediate examination. From the window where the entry into the store was made he saw footprints leading directly to the house occupied by the plaintiff. The plaintiff admitted that one of the footprints was probably made by him, as he had been to the store the evening before to a rubbish...