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ROYAL OIL COMPANY, INC., ET AL v. PAMELA ANN WELLS

AUGUST 13, 1986

ROYAL OIL COMPANY, INC., ET AL
v.
PAMELA ANN WELLS



BEFORE ROY NOBLE LEE, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This malicious prosecution action arises out of the arrest and prosecution of a convenience store cashier on embezzlement charges ultimately "no-billed" by the grand jury. The core of this appeal is the cashier's employer's argument that she failed to prove want of probable cause for the embezzlement charge and malice in its bringing. A jury resolved these issues in the cashier's favor, returning a $9,600.00 verdict. For the reasons detailed below, we affirm on direct appeal.

 The cashier has cross-appealed the trial judge's refusal to allow the jury to consider her demand for an assessment of punitive damages. Because the malice necessary to undergird the malicious prosecution tort is close enough to the malice prerequisite to an assessment of punitive damages to warrant at the very least submission of the issue to the jury, we reverse and remand on that issue.

 II.

 On October 15, 1981, Pamela Ann Wells, then almost 22 years of age, was first employed by The Dodge Store in Gautier, Mississippi, as a waitress and cashier. The Dodge Store was and is a convenience store/gas station open 24 hours

 a day, seven days a week. It was and is owned and operated by Royal Oil Company, Inc.

 The manager of The Dodge Store was April L. Miller. Curtis Eugene Miller, Jr, then April's husband, was an employee of the store working in a service and maintenance capacity. Darrell Eugene Ladner, April's brother, also worked there. April and Curtis Miller lived in a trailer on the premises of The Dodge Store and were on 24 hour call.

 According to Wells, her relationship with the Millers was a good one until they found out that her husband was a black man, at which time they began harassing her and criticizing her work. She thereafter received two warning slips concerning her job performance. One warning slip indicated that Wells had failed to clean off the shelves in the store and the other indicated a $40.00 shortage occurring during her shift.

 Ricky Carter worked at the club located next door to The Dodge Store. On the morning of January 12, 1982, Carter came into the store and purchased three or four cups of coffee from Pamela Wells. Carter gave Wells a ten dollar bill and Wells gave him his change. According to Carter, Wells rang up a "no sale" on the register and placed the $1.53 on top of the register. Carter telephoned Curtis Miller and told him that Wells had not rung up the sale. Curtis discussed the situation with Thomas F. Barnes, a Jackson County deputy sheriff, and then proceeded to the office of Jackson County Justice Court Judge Carroll Clifford. There Miller initiated a criminal charge of embezzlement against Pamela Ann Wells by executing and filing an affidavit charging Wells with the embezzlement of the $1.53. Judge Clifford then issued a warrant for Wells' arrest. All of this was done before Wells was given an opportunity to explain her side of the story.

 Shortly thereafter, on the morning in question, Wells was summoned to the store office whereupon April and Curtis Miller accused her of the Ricky Carter incident. A few minutes later, Deputy Sheriff Barnes arrived with the warrant for Wells' arrest. Wells was taken into custody and in due course released on $1,000.00 bond.

 A preliminary hearing was held in Justice Court before Judge Carroll Clifford at the conclusion of which Pamela was bound over to await the action of the April 1982 Jackson County Grand Jury. A transcript of the testimony of Curtis Miller and Ricky Carter from the Justice Court proceeding was prepared and sent to the Circuit Court to be presented to the grand jury. On April 14, 1982, the grand jury "no billed" the

 complaint.

 Pamela Ann Wells commenced this civil action on March 18, 1983, by filing her complaint in the Circuit Court of Jackson County. Named as defendants were Royal Oil Company, Inc., d/b/a The Dodge Store and Curtis E. Miller. Wells charged the defendants with malicious prosecution, false imprisonment, false arrest and slander.

 The case was called for trial on October 27, 1983 and was submitted to the jury on the malicious prosecution count only. Wells claimed damages for anxiety, nervousness and embarrassment, which had made her physically ill, loss of wages, loss of good reputation and good standing in the community. In response the jury returned a verdict in her favor and against both defendants in the amount of $9,600.00. The trial court refused to submit to the jury the question whether punitive damages should be assessed. The usual post-trial motions were made and overruled. This appeal and cross-appealed have followed.

 III.

 Curtis Miller and Royal Oil Company both argue that the Mississippi Workers' Compensation Act affords Pamela Wells her exclusive remedy and thus this claim should have been held barred. See Miss. Code Ann. 71-3-9 (1972). Miller v. McRae's, Inc. 444 So.2d 368, 371 (Miss. 1984) holds that the Workers' Compensation Act does not bar an employee from pursuing a common law remedy against his employer for an injury caused by his employer's wilful and malicious act. See also Luckett v. Mississippi Wood, Inc., 481 So.2d 288, 290 (Miss. 1985). Malicious prosecution is an intentional tort and is within those rights of action an employee may maintain against his employer consistent with the compensation act.

 Curtis Miller, as an agent for Royal Oil Company, is not a "third person" for purposes of 71-3-3(b). He occupies the same legal posture as the security chief sued in Miller. The trial court correctly held Wells' claim unaffected by our Workers' Compensation Act.

 IV.

 A.

 Royal Oil and Curtis Miller charge that the evidence at trial is legally insufficient to sustain a verdict against them. They point particularly to the issues of malice and want of probable cause - necessary elements of the tort of

 malicious prosecution.

 Overall, the elements of this tort are well established in our law and include:

 (1) The institution of a criminal proceeding; (2) by, or at the insistence of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; (6) the suffering of injury or damage as a result of the prosecution.

 Harvill v. Tabor, 240 Miss. 750, 753, 128 So.2d 863 (1961); see also Owens v. Kroger Co., 430 So.2d 843, 846 (Miss. 1983); Gaylord's of Meridian, Inc v. Sicard, 384 So.2d 1042, 1043 (Miss. 1980); Pugh v. Easterling, 367 So.2d 935, 937 (Miss. 1979); Gandy v. Palmer, 169 So.2d 819, 826 (Miss. 1964).

 In exploring the suggested inadequacies in Pamela's proof on two of these elements, Appellants would tiptoe past our limited scope of review of jury verdicts. As in other cases where the trial judge has refused to grant a motion for judgment notwithstanding the verdict, we must look at all of the evidence - not just that which supports the non-movant's case - in the light most favorable to the party opposed to the motion. That credible evidence tending to support the non-movant's case must be presumed true. Gordon by Lewis v. Wheat, 465 So.2d 1087, 1088 (Miss. 1985); Thomas v. Deviney Construction Co., 458 So.2d 694, 697 (Miss. 1984); Torabi v. J. C. Penney, Inc., 438 So.2d 1354, 1356 (Miss. 1983). The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Coca Cola Bottling Co., Inc. v. Reeves, 486 So.2d 374, 380 (Miss. 1986). Moreover, the evidence favorable to the moving party must be disregarded if it has been contradicted or its credibility otherwise called into question. Vise v. Vise, 363 So.2d 548, 550 (Miss. 1978). If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, the motion should be granted and, if it has not been, we must reverse. On other other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the jury verdict should be allowed to stand and the motion denied, and, if it has been so denied, we have no authority to reverse.

 These principles have been stated in cases which are legion in number, including, but by no means limited to, Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss. 1984); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss. 1983); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975). They are as applicable in malicious prosecution cases as any other. Owens v. Kroger Co., 430 So.2d 843, 848 (Miss. 1983): Torabi v. J. C. Penney, Inc., 438 So.2d 1354, 1355-56 (Miss. 1983); Gaylord's of Meridian, Inc. v. Sicard, 384 So.2d 1042, 1044 (Miss. 1980).

 B.

 We apply these principles to each element of the tort of malicious prosecution. When we do this we find much of Wells' claim readily established. Curtis Miller, acting in concert with his wife and on behalf of Royal Oil Company, instituted the criminal proceeding against Pamela Wells by swearing out an affidavit charging her with embezzling $1.53 which belonged to Royal Oil Company and obtaining a warrant for her arrest on that charge from the Justice Court Judge. The Justice Court Judge turned the matter over to the Grand Jury which refused to indict. As far as the record indicates, no further action was ever taken on the case. The prosecution may safely be regarded as having been abandoned. The termination requirement is met when the action is either abandoned by the prosecuting attorney or by the complaining witness. Pugh v. Easterling, 367 So.2d 935, 937 (Miss. 1979); Gandy v. Palmer, 169 So.2d 819, 827 (Miss. 1964); Conn v. Helton, 232 Miss. 462, 469, 99 So.2d 646 (1958); Harvey v. Dunaway, 461 F.Supp. 758, 759 (N.D.Miss. 1978).

 C.

 As is so often the case on appeals of this sort, Appellants' principal assault is upon plaintiff's proof of lack of probable cause and of malice. Compare Owens v. Kroger Co., 430 So.2d 843, 846-48 (Miss. 1983). Appellants argue here that, because the Justice Court Judge found probable cause to bind the matter over to the Grand Jury, probable cause is necessarily present and thus a claim of malicious prosecution must fail.

 When a conviction is obtained in a lower court prosecution, whether reversed or not, a prima facie case is made that probable cause is present, in the absence of fraud, perjury or other corrupt practices. Gaylord's of Meridian, Inc. v. Sicard, 384 So.2d at 1044; J. C. Penney Company, Inc. v. Blush, 356 So.2d 590, 592 (Miss. 1978); Hyde Construction Co., Inc. v. Koehring Company, 546 F.2d 1193 (5th Cir. 1977),

 551 F.2d 73 (5th Cir. 1977); Accord, Restatement (Second) of Torts 667(1). That prima facie case, of course, is subject to rebuttal by plaintiff's evidence. In the factual context we consider here, Appellants appeared before the trial court armed with no such prima facie case, as a result of which the question of probable cause or the want thereof naturally became a jury question, with respect to which plaintiff bore the burden of proof by a preponderance of the evidence. J. C. Penney Company, Inc. v. Blush, 356 So.2d at 593.

 The quest for probable cause vel non is made by reference to the facts reasonably available to the defendant at the time he initiates the said-to-be-malicious prosecution. Owens v. Kroger Co., 430 So.2d 843, 846 (Miss. 1983). Probable cause requires a concurrence of (1) an honest belief in the guilt of the person accused, and (2) reasonable grounds for such belief. ...


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