Touchton v. Kroger Co.

• Citation: 512 So.2d 520
• Decision Date: 26 June 1987
• Docket Number: No. 86-618,86-618
• Parties: Jerry L. TOUCHTON, Plaintiff-Appellant, v. KROGER COMPANY, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 520

512 So.2d 520

Jerry L. TOUCHTON, Plaintiff-Appellant, v. KROGER COMPANY, et al., Defendants-Appellees.

No. 86-618.

Court of Appeal of Louisiana, Third Circuit.

June 26, 1987.

Vincent Hazleton and Vivian Whittle, Alexandria, for plaintiff-appellant.

Gist, Methvin, Hughes & Munsterman, Dewitt T. Methvin, Jr., Alexandria, for defendants-appellees.

Before DOMENGEAUX, LABORDE and YELVERTON, JJ.

DOMENGEAUX, Judge.

Plaintiff, Jerry L. Touchton, brought this suit to recover damages arising out of his allegedly unlawful arrest and subsequent prosecution. The defendants before the court on appeal are Police Officer Bobbie Trammell, Lieutenant Russell Murdock, Chief of Police for the City of Pineville Eldon Sayes, Assistant Chief of Police F.A. Stalter, the City of Pineville, and Atlanta International Insurance Company, the City of Pineville's liability insurer. Plaintiff appeals the district court's judgment sustaining the defendants' peremptory exception of no cause of action, and dismissing plaintiff's suit against these defendants.

After a review of plaintiff's petition and the applicable law, we conclude that the petition fails to state a cause of action against these defendants. Therefore, we affirm the judgment of the district court.

The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face of the papers. For the purpose of determining the validity of the exception, all well pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977).

The plaintiff's petition sets forth the following allegations of fact: On January 30th or 31st, 1984, plaintiff's checkbook for his personal checking account with Guaranty Bank and Trust Company in Alexandria, Louisiana, was stolen from his car; On January 31, 1984, two of the stolen checks were forged and made payable to "Kroger," each check in the amount of $30.00; the checks were negotiated to the Kroger Company store located in Pineville, Louisiana; since plaintiff had notified Guaranty Bank that the checks had been stolen, the bank refused payment after Kroger deposited the checks; Guaranty Bank returned the checks to Kroger, with the notation "SIGNATURE NOT LIKE THAT ON FILE" printed by hand on the checks; Guaranty Bank also informed Kroger of its reason for denying payment in two letters it sent to the Pineville store; after its failure to collect the amount of the checks from plaintiff, the manager of the Pineville Kroger store, Robert Borders, executed an affidavit before Lynda M. Lymberis, Clerk of the Pineville City Court, stating that plaintiff had issued a worthless check to Kroger drawn on the Guaranty Bank in the amount of $30.00 for merchandise received at the time the check was issued and attached the check numbered 1402 to the affidavit; Ms. Lymberis typed out a warrant for plaintiff's arrest for issuing a worthless check in violation of La.R.S. 14:71 and presented the warrant, Robert Borders' affidavit and the forged check to Judge F. Jean Pharis of the Pineville City Court, who signed the warrant for plaintiff's arrest; the Clerk of the Pineville City Court then delivered the warrant, affidavit, and check to F.A. Stalter, Assistant Chief of Police, who delivered the documents to Police Officer Bobbie Trammell with instructions to have plaintiff arrested; neither officer examined the check attached to the affidavit or investigated the charges alleged; on March 19, 1984 Officer Trammell called the principal's office at Peabody Magnet School in Alexandria, Louisiana, where plaintiff was employed as a computer science teacher; Officer Trammell left a message for plaintiff to call her; after plaintiff failed to immediately return the call, Officer Trammell called the principal's office again, telling the office employee to deliver a message to plaintiff stating that she was a Pineville police officer and that if he did not return her call she would get the Alexandria police department to arrest him; when plaintiff returned Officer Trammell's call she informed him that she had a warrant for his arrest; plaintiff then reported to the Pineville Police Station where Lt. Russell Murdock placed him under arrest and gave him a summons to appear in court on April 11, 1984; plaintiff told the arresting officers that the check had been forged; on March 20, 1984, plaintiff's attorney met with Assistant Chief of Police F.A. Stalter informing him of the theft of the checks and the subsequent forgery; William J. Bryant, Vice-President of Guaranty Bank wrote a letter to Mr. Stalter on March 21, 1984, verifying that the checks were stolen and that the $30.00 check was returned because the signature was not like that on file; on April 2, 1984, plaintiff's attorney filed a motion to quash the charge, setting forth the above alleged facts, and delivered the motion to Assistant Chief Stalter with copies of the documents going to Henry H. Lemoine, Jr., prosecuting attorney for the City of Pineville; plaintiff appeared in Pineville City Court for arraignment and entered a plea of not guilty; plaintiff was brought to trial on the charges on May 9, 1984, after which Judge Pharis granted the motion to quash and dismissed the charges against him.

Given these allegations of fact, we must decide whether the trial court properly granted the exception of no cause of action as to each defendant.

With respect to the police officers, the causes of action alleged to be asserted here are for malicious prosecution, false arrest, and deprivation of constitutional rights under color of legal authority (42 U.S.C. § 1983). With respect to the City of Pineville, plaintiff alleges that it is vicariously liable for the police officers' conduct as well as for its own negligence in failing to employ qualified officers and to properly train them. Plaintiff also alleges that Atlanta International Insurance Company is liable for the damage complained of here based on a policy of liability insurance issued to the City.

MALICIOUS PROSECUTION

A civil cause of action for malicious prosecution is recognized by our jurisprudence and is based on fault under La.C.C. Article 2315. Jones v. Soileau, 448 So.2d 1268 (La.1984). The elements of the cause of action were stated in Jones, supra, citing Eusant v. Unity Industrial Life Insurance, 195 La. 347, 196 So. 554 (1940); and Hibernia National Bank v. Bolleter, 390 So.2d 842 (La.1980), as follows:

"(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 plaintiffs;

(4) the absence of probable cause for such proceeding;

(5) the presence of malice therein; and

(6) damage conforming to legal standards resulting to plaintiffs."

The Supreme Court indicated that application of this test should be made in light of the general principles espoused under Civil Code Article 2315.

After examining the facts alleged, in light of the tests set out in Jones, we conclude that the plaintiff has failed to state a cause of action for malicious prosecution against the police officers.

The facts as alleged show that Assistant Chief of Police F.A. Stalter received the warrant signed by Pineville City Court Judge F. Jean Pharis, along with the supporting affidavit and the forged check. He gave the documents to Officer Trammell with instructions to have plaintiff arrested or called to ask him to come to the Pineville Police Station. Officer Trammell called plaintiff at his place of employment to inform him of the warrant for his arrest. Plaintiff subsequently went to the police station where he was arrested by Lt. Russell Murdock and given a summons to appear in court on April 11, 1984.

We conclude that these facts are not sufficient to satisfy the second element of the Jones test; that being that the present defendants be the legal cause of the original judicial proceeding against the plaintiff.

The four police officer defendants in this case were in no way responsible for the issuance of the warrant for plaintiff's arrest. They did not initiate the complaints against plaintiff nor did they support issuance of the warrant through affidavits. The officers were involved in this case only after an initial complaint was made and a warrant for plaintiff's arrest was issued by the Pineville City Court. We conclude that these allegations of fact cannot support a finding that the police officer defendants were a legal cause of commencement of the original proceeding against plaintiff.

Nor was the conduct of the officers after the arrest a legal cause of the continuation of the proceeding against plaintiff. Plaintiff alleges that Assistant Chief Stalter was subsequently informed that the charges were groundless since the check upon which the charges were based was forged, but that, nonetheless, the charges were not dismissed. This allegation is not sufficient to state the element of the cause of action that the defendant legally caused the continuation of the proceeding against plaintiff. Once prosecution was initiated against plaintiff by affidavit, the police officers had no control over the dismissal of the charges against plaintiff. At that stage in the proceeding, only the prosecuting attorney had discretion to dismiss the charges. See City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70 (1966). Therefore, the police officers could not have been a legal cause of the continuation of the prosecution under the allegations of fact made in plaintiff's petition.

Since plaintiff has failed to allege facts supporting an essential element of an action for malicious prosecution, he has failed to state a cause of action for malicious prosecution.

Also, since plaintiff has not stated a cause of action for...