Whittington v. Gibson Discount Center

• Decision Date: 28 May 1974
• Docket Number: No. 12325,12325
• Citation: 296 So.2d 375
• Parties: John P. WHITTINGTON, Plaintiff-Appellant, v. GIBSON DISCOUNT CENTER and C. O. Dorsey, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 375

296 So.2d 375

John P. WHITTINGTON, Plaintiff-Appellant, v. GIBSON DISCOUNT CENTER and C. O. Dorsey, Defendants-Appellees.

No. 12325.

Court of Appeal of Louisiana, Second Circuit.

May 28, 1974.

Gamm, Greenberg & Kaplan, by Jack H. Kaplan, Shreveport, for plaintiff-appellant.

Lunn, Irion, Switzer, Johnson & Salley, by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees.

Before PRICE, HALL and WILLIAMS, JJ.

HALL, Judge.

This appeal by plaintiff, John P. Whittington, is from a judgment of the district court rejecting his demands against defendants, Gibson Discount Center and C. O. Dorsey, for damages arising out of an alleged false arrest and malicious prosecution. We reverse the judgment of the district court and award damages.

On April 16, 1971, plaintiff, who lived in Huxley, Texas and operated a marina on Toledo Bend, went to the Gibson Discount Center located at the corner of Hollywood Avenue and Mansfield Road in Shreveport with a truck and a driver for the purpose of purchasing garden plants and flowers. Several days earlier plaintiff had made arrangements with James S. Garcia, manager of the store's garden center, for the purchase of a substantial quantity of the Center's remaining plants and was quoted prices on an end-of-the season basis. Garcia gave the information and price list to Grady L. Thomas and Richard C. May, III, also employees in the garden center.

When plaintiff arrived at the store, Garcia was out and he was waited on by May. The plants plaintiff wanted were picked out and were loaded on the truck. A question arose concerning the prices and it was decided that plaintiff should wait for Garcia to return. Plaintiff was also interested in purchasing some other items and wanted to obtain prices on those items.

Plaintiff waited for a considerable period of time, going in and out of the store and to various departments within the store while he was waiting. At one point while he was waiting he moved the truck loaded with the plants from near the door of the garden center to a place in the main parking lot with the knowledge and consent and perhaps at the request of May. May wrote down the license number of the truck and plaintiff noticed that he did so.

While waiting at Gibson's plaintiff realized that it was getting close to closing time at Lorant's Sporting Goods where he had sent another truck and driver to pick up a number of boats being purchased by him from that store. He called Lorant's and learned that the truck was loaded and waiting on him. Plaintiff decided to go to Lorant's and pay for the boats and then to come back to Gibson's at which time Garcia should be back. Plaintiff testified he told May what he was going to do. May denied that plaintiff told him he was going to leave. In any event, plaintiff left Gibson's in the truck, accompanied by the driver, and went to Lorant's located at the corner of Jewella Road and Lakeshore Drive in Shreveport where he settled up for the boats. Before plaintiff left Gibson's, Garcia returned to the store, saw plaintiff and waved at him, but Garcia did not think plaintiff saw him.

After plaintiff left Gibson's, May reported to the security officer, an off-duty policeman that plaintiff had left the store without paying for the merchandise. The Shreveport Police Department was called and given the description and license number of the truck and an order issued to stop the truck if it was seen.

After finishing his business at Lorant's, plaintiff and the driver started back down Jewella on the most direct route back to Gibson's. The truck was spotted by a Shreveport police officer who pulled up behind the truck at the corner of Jewella and Greenwood Road. The police officer was under the impression the truck was goint to turn right on the Greenwood Road in a westerly direction and honked at the truck. The truck pulled on across the Greenwood Road, still headed back toward Gibson's and pulled over. The police officer informed plaintiff why the truck was being stopped and after some discussion, the police officer, followed by plaintiff and the driver in the truck, drove back to the Gibson Discount Center.

At Gibson's there was a discussion between plaintiff, the police officers, and C. O. Dorsey, manager of the Gibson Store. Dorsey signed an affidavit charging plaintiff with attempted theft and plaintiff was taken to the police station and booked. He posted a $155 cash bond and was released. Subsequently, he was tried in Shreveport City Court and was found not guilty and discharged.

Prior to the incident in question, plaintiff, in connection with his marina operation, had purchased several thousand dollars worth of merchandise--mostly sporting goods--from Gibson Discount Center. He was known by Dorsey, the store manager, whose secretary happened to be plaintiff's former wife. Plaintiff was known by Garcia, the garden center manager, by virtue of their previous discussion and arrangements about the purchase of the plants. Plaintiff was known by May who had on a previous occasion assisted in loading plaintiff's truck with a large...