BEFORE HAWKINS, PJ., DAN LEE AND GRIFFIN, JJ.
GRIFFIN, JUSTICE, FOR THE COURT:
This case, involving malicious prosecution, comes to the Court from the Circuit Court of the First Judicial District of Hinds County, Mississippi, where the trial judge granted a motion for summary judgment in favor of Zurich-American Insurance Company. We reverse.
In November, 1978, Mississippi Road Supply Co., Inc. (hereinafter MRSC) sold a Model TD-25B International Crawler
Tractor, a bulldozer, to Anderson Smith. On December 19, 1979, the bulldozer caught fire, resulting in a total loss. Zurich-American Insurance Co. (hereinafter Zurich), Smith's carrier, paid the claim of $49,000.
Prior to payment, Zurich conducted an extensive investigation of the fire, employing an adjuster, appraiser, and an independent laboratory, as well as its own Major Case Unit. By March, 1980, Zurich had information from the testing laboratory, Forensic Science, Inc., that the cause of the fire was an add-on clamp, improperly installed on the battery cable, running from the bulldozer's larger battery to its starter.
On October 28, 1981, Zurich filed suit in the name of its insured against MRSC, seeking reimbursement of its payment on the loss. The following evidence formed the basis of the suit: (1) On January 14, 1980, Anderson Smith stated that" for the year and one-half I had this tractor before it burned Miss. Road Supply did all the Maintenance Work . . . . ", (2) On March 10, 1980, Anderson Smith allegedly stated as well:
[A]ll the work that was ever done on this Unit before it burned up that day in the field back behind my house here was done by MS. Road Supply Company in Jackson, Ms. - I know nothing about the Battery Cable and Clamp section of this Unit - I never did any work to the Battery - or to the Clamp - or to the Battery Cable or anywhere . . . .
(3) the invoices of MRSC voluntarily submitted to Zurich in order to aid Smith's settlement efforts in that the invoices reflected the mechanical condition of the bulldozer at the time of the fire; (4) invoices also appear in the record, showing the sale of the bulldozer by MRSC to Anderson Smith on November 8, 1978, and the subsequent sale of two batteries for the bulldozer by MRSC to Anderson Smith on August 27, 1979; (5) the reports made to Zurich by Forensic Science in February and March, 1980; and (6) the remarks of John Boutwell, Zurich's claims supervisor, who stated that the insurer filed suit upon the advice of counsel.
On July 12, 1982, Zurich, unable to obtain Smith's cooperation, requested a dismissal of the suit. On August 13, 1982, Zurich refiled the suit in its own name, only to request a second dismissal, this time with prejudice, on November 16, 1983, immediately following the hearing of a motion for summary judgment. Angered by the litigation,
MRSC then filed against Zurich, on December 15, 1983, alleging that the insurer had engaged in a malicious prosecution as it lacked sufficient probable cause to maintain either suit.
On November 8, 1984, Zurich filed a motion for summary judgment, attaching thereto copies of the documents listed above. In turn, MRSC filed a brief response, alleging that it had not installed the battery clamp blamed for the fire, nor even the batteries afterward found in the bulldozer. It also noted that at no time during any of the conversations between Zurich and MRSC, either before or after filing suit, did the insurer inquire as to whether the equipment dealer had installed the clamp. Upon argument of counsel, the trial judge sustained Zurich's motion.
The elements of malicious prosecution are, (1) the institution or continuation of original judicial proceedings, either criminal or civil; (2) by, or at the instance of the defendants; (3) the termination of such proceeding in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause in the proceedings; and (6) the suffering of damages as a result of the action or prosecution complained of. Harvill v. Tabor, 240 Miss. 750, 753-54, 128 So. 2d 863, 864 (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); State, for the Use and Benefit of Foster v. Turner, 319 So. 2d 233, 235 (Miss. 1975); Gandy v. Palmer, 251 Miss. 398, 414, 169 So. 2d 819, 826 (1964). The burden of proof for such rests with the plaintiff. Winters v. Griffis, 233 Miss. 102, 107, 101 So. 2d 346, 348 (1958).
The case at issue turns primarily on the presence of probable cause. In J. C. Penney Co., Inc. v. Blush, 356 So. 2d 590, 593 (Miss. 1978), the Court equated" probable cause "with" reasonable cause, "defining it as a" reasonable ground for belief in the existence of facts warranting the proceedings complained of. "The issue then is" whether the facts and circumstances upon which [the defendants] acted were such as to constitute probable cause or reasonable ground for their belief . . . . "Id. ...