BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Tunica County, wherein the appellant, Elise Woolfolk was found guilty of the malicious prosecution of James F. Tucker. A jury awarded $85,000 in damages to Tucker. From this judgment Woolfolk appeals.
In 1981, appellant Elise Woolfolk and her husband moved to Tunica County, Mississippi, from Houston, Texas, and commenced construction of a home. James Tucker, d/b/a Tucker Electric, contracted to do the electrical work. While the house was under construction, the appellant's husband died. Appellee was paid for the contract work, but had done some extra work at the residence and payment for that work was in dispute.
The appellee, James F. Tucker, age 52, had been a resident of Tunica for 27 years. He was employed as
a service man by Mississippi Power & Light Company and had been an employee of said company since he graduated from high school. He was also sole owner of Tucker Electric Company, a corporation organized on February 5, 1980, which he operated as a sole proprietor prior to that date.
On September 25, 1981, while driving a company vehicle, with MP&L insignia, and on company time, the appellee saw a sign advertising appellant's home for sale. He drove the company vehicle onto the property of the appellant to inquire about the payment of her bill with Tucker Electric Company, his privately owned business, since it was apparent that she was planning to move to another location. An intense argument ensued with both parties giving different versions.
Appellee Tucker alleges that he approached the appellant in a friendly manner and the following conversation allegedly ensued:
A. I stopped the truck, walked out to where her and her yard boy was working, pointed toward the sign and said, "Hey, lady, you can't leave Tunica County yet; we haven't voted on that."
A. She said, "If I can sell this goddamn house, I'm leaving Tunica County." And, she said, "Listen, while I was in Houston, I got a bill from you. And, if you think I'm going to pay you, you're crazy as hell. I've already paid you too goddamn much." She said, "I ain't paying you a goddamn penny."
Q. Is that what she said to you?
A. I said, "Well, lady, if you're not going to pay me, it was a bid job, you knew what it was going to cost, if you're not going to pay me, then I'm going to have to move my material."
A. She said I didn't have enough artillery to remove my material. And, I said, "Yes, ma'am, I think I have."
Q. All right, now what tone of voice were you using when you made that comment to her?
A. Similar to what I am now, may be not this loud because you told me to speak up.
Q. All right, what tone of voice was she talking to you if you recall?
A. Very loud. In fact, she told me if I didn't leave the premises then, I'd leave my goddamn ass laying there. And, I said, "Lady, I'm leaving." And, I did leave.
The appellant's recollection of this incident was remarkably different. According to appellant the appellee approached her and the following conversation then ensued:
A. . . . So, when he drove up in the drive that day, he said, "I see you're leaving." I said, "Well, not until I can sell the house."
Q. Did you say that in that tone of voice?
A. I said, yeah, "Not until I can sell the house." And, he said "I come to get my money." And, I said, "Well, you know, I got that bill out of that letter box for four hundred and fifty dollars, but you told me you'd charge a hundred and fifty." And he said - and, I said, "I'm not going to pay that much again for another one of those things whatever it was."
Q. Is that how you said it to him or did you say, "I'm not going to give ...