BEFORE WALKER, ROY NOBLE LEE, AND HAWKINS
HAWKINS, JUSTICE, FOR THE COURT:
Michael Owens appeals from a judgment of the Circuit Court of Adams County in favor of the defendant The Kroger Company notwithstanding a jury verdict in favor of Owens.
The only question we address on this appeal is whether a jury issue was made on the necessary elements of probable cause and malice in the malicious prosecution suit by Owens. We find there was, and reverse and reinstate the jury verdict.
At 3:00 p.m. on May 15, 1979, Michael Owens got off work from his job with an oil company. He first went home, thence to cash his pay check, and then to the home of his cousin, Shelby Butler. They drove around in Owens' car, and eventually went to the Natchez Kroger store. Owens was 27 and single at the time, but had a girlfriend named Carolyn Green. Carolyn was the mother of Owens' son, Ken Green.
Since the evidence presented by Owens and Kroger contains some material difference, we summarize the testimony of each side.
According to Owens, he and Butler arrived at Kroger's between 7:30 and 8:00 p.m. They went into the store where Owens purchased milk and Pampers for Ken. They returned to the car, and could not crank it. Owens went back into the store to purchase some jumper cables if in stock.
While in the store for the second time, he recalled that Carolyn wanted some barbeque sauce and ribs. He also found some jumper cables. He brought them to the checkout counter, paid for them, and left them there. His reason for leaving these purchases at the counter was that he did not want to carry the bag around the store with him. He then walked to the produce department and saw some Irish potatoes. He did not know whether Carolyn wanted loose or sacked potatoes, so he picked up a plastic bag containing 5 pounds of Irish potatoes worth 99 cents.
He returned to the same cashier and told her he was going to call his girlfriend to see if she wanted loose or sacked potatoes. The pay telephone was near the exit door, on its right as you leave the store.
The sack of potatoes was in plain view under his arm. His purchase remained on the counter as he walked toward the phone carrying the potatoes.
He heard the cashier tell the security guard, David Robinson, that he was leaving without paying for the potatoes. He had taken about two steps beyond the cash register when Robinson took him by the arm and told him he was under arrest. He was then taken upstairs where he and Robinson awaited arrival of Natchez policemen.
According to Butler, Owens and he arrived at Kroger's around 6:00 to 7:00 p.m. Butler went in the store with Owens the first time, although he was not making any purchases. Butler tired of waiting on Owens to complete his purchases and returned to the car where he played the radio. Butler went back into the store to ask Owens to come on out. Butler again returned to the car, turned the switch on and found the car would not crank. Butler went back into the store and told Owens the car would not crank, and Owens replied he would get some jumper cables.
Butler went outside to locate somebody who would jump them off. Owens still did not return to the car, and again Butler went into the store where he observed Robinson escorting Owens upstairs. A short while later, he saw Owens, Robinson, and two Natchez policemen come downstairs. They permitted Owens to pick up the items he had purchased. These items were located on a cashier's counter.
Andra Rounds was a cashier at the checkout counter where Owens first made some purchases and left the store. Owens shortly returned and he came into the store "a couple of times," and she observed him walking out of the store with a bag of groceries, and a bag of potatoes that he had not paid for. The bag of groceries had been on a closed checkout counter, and Owens picked them up and was going out the door. The security guard asked her if he had paid for the potatoes, and when she told him he had not, the guard approached Owens right at the door and arrested him. The time of the arrest was 10:00 p.m. or later.
According to Rounds, Owens did not come to her line or say anything to her before starting toward the door. Her checkout line was three lines from the closed line.
David Robinson was a full-time policeman with the Natchez Police Department. He worked part-time as security guard at the Kroger store.
He observed Owens come into the store around 9:00 p.m. According to Robinson, Owens "piddled around in the store for about an hour." Robinson recalled Owens having mechanical difficulties with his car, buying small items, coming in and out the store. Robinson testified he started watching Owens because "when people come to the store, they usually come in and shop and get whatever ...