Womack v. E. Fudikar

• Decision Date: 01 January 1895
• Docket Number: 11,678
• Citation: 16 So. 645,47 La.Ann. 33
• Court: Louisiana Supreme Court
• Parties: J. M. WOMACK v. E. FUDIKAR

16 So. 645

47 La.Ann. 33

J. M. WOMACK v. E. FUDIKAR

No. 11,678

Supreme Court of Louisiana

January 1, 1895

APPEAL from the Fifth District Court, Parish of Ouachita. Madison, J. ad hoc.

Garrett & Munholland, for Plaintiff, Appellant.

Fred. G. Hudson, for Defendant, Appellee.

OPINION

BREAUX, J.

The plaintiff, a farmer, sues the defendant, a merchant, for damages for an alleged malicious prosecution.

His grievance upon which he bases his claim consists in that he bought goods of the defendant merchant amounting to about sixty dollars, including a barrel of syrup, for which he paid eight dollars.

A week or two after he had bought these goods, he came from his home to Monroe, a distance of about fourteen miles.

He brought with him in a flask a sample of the syrup to see if the defendant would take it back, as it was of inferior quality.

The defendant consented to take it back and returned the eight dollars to the plaintiff. The latter at the time promised to return the syrup.

An order to deliver the syrup to Wilson Tillman was handed to the plaintiff, and by him it was sent to Tillman, who had ordered the defendant to send him a half barrel of syrup.

The plaintiff testifies that Tillman refused to receive the syrup.

In October, 1892, he was arrested under defendant's charge of having obtained money under false pretences.

After hearing, he was committed to the District Court by the District Judge, acting in the capacity of a committing magistrate.

There was no indictment, on the charge, found by the grand jury.

The defendant denies that, in making the charge, he was actuated by malice, and that he acted without probable cause.

He and witnesses, summoned by him, testified that there had been delays and failure on the part of the plaintiff to comply with the agreement to return the syrup; that he had refused to avail himself of the opportunity offered to him to deliver the syrup; and, finally, that he threateningly sent away the one to whom it was to be delivered, so that he was afraid to go back.

In September the defendant addressed a letter to the plaintiff in which he expressed surprise at defendant's failure to deliver the syrup.

The October following, upon the advice of counsel defendant's affidavit was made.

A short time subsequent the plaintiff delivered the syrup. It was sold by the defendant, and the buyer testified that it was good syrup.

The plaintiff was not at any time under arrest.

After he had been notified of the charge he was directed by the officer to appear before the committing magistrate.

The case was tried before a jury.

The judge of the District Court, who was the committing judge at the preliminary trial, granted a new trial, the jury having found a verdict for the defendant.

At the second trial also, the verdict was for the defendant.

THE GROUNDS OF BELIEF THAT A FELONY HAD BEEN COMMITTED.

From the judgment of the court based on the last verdict the plaintiff appeals.

Upon the state of facts proved, the defendant assumed that a felony had been committed.

It is well settled that to sustain the defendant's defence of a suit against him for damages for an alleged malicious prosecution, the grounds of belief must be such as would influence the mind of a reasonable person. The question is not whether the accused was guilty, but the belief of the prosecutor as to his guilt.

Probable cause for instituting a criminal prosecution, Mr. Hilliard on Torts states, "is such a state of facts known to and influencing the prosecutor as would lead a man of ordinary caution and prudence, acting conscientiously,...