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Downtown Grill Inc. v. Connell

September 17, 1998

DOWNTOWN GRILL, INC.
v.
MICHAEL CONNELL AND TONIA CONNELL, INDIVIDUALLY, AND AS PARENTS AND NEXT FRIENDS OF THEIR MINOR SON, PAUL CONNELL; AND PAUL CONNELL



EN Banc.

The opinion of the court was delivered by: Pittman, Presiding Justie

DATE OF JUDGMENT: 09/23/96

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION REVERSED AND RENDERED - 9/17/98

MOTION FOR REHEARING FILED: MANDATE

ISSUED:

STATEMENT OF THE CASE

¶1. Michael Connell and Tonia Connell, individually and as parents and next friends of their minor son, Paul Connell, and Paul Connell (collectively, the "plaintiffs") commenced this action against the Downtown Grill, Inc. (the "Downtown Grill"), a restaurant located on the Square in Oxford, Mississippi, and one of its employees, Chris Gwin. The plaintiffs alleged causes of action for libel and slander, malicious prosecution, intentional infliction of emotional distress, and gross negligence arising out of the arrest of Paul Connell for forgery. Mr. and Mrs. Connell joined in this lawsuit not only on behalf of their son, but also to assert their alleged separate "individual" claims.

¶2. A jury trial began on September 16, 1996, and plaintiffs voluntarily withdrew their claims against Defendant Chris Gwin at the close of the evidence in the trial. On September 17, 1996, the jury returned a verdict for the plaintiffs and against the Downtown Grill in the amount of $40,000.00 in actual damages and judgment was entered on September 27, 1996. On October 2, 1996, the Downtown Grill filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial, which was denied on November 20, 1996. The Downtown Grill filed its Notice of Appeal on December 10, 1996 presenting the issues listed below for consideration.

I. WHETHER THE LOWER COURT ERRED IN DENYING THE DOWNTOWN GRILL'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL?

A. WHETHER PREJUDICIAL ERROR WAS COMMITTED BY GIVING PLAINTIFFS' INSTRUCTION P-2 AND REFUSING THE DOWNTOWN GRILL'S INSTRUCTION D-4 AND D-5 REGARDING THE QUALIFIED PRIVILEGE?

B. WHETHER PREJUDICIAL ERROR WAS COMMITTED BY DENYING THE DOWNTOWN GRILL'S MOTION FOR A DIRECTED VERDICT AND/OR A PEREMPTORY INSTRUCTION ON THE INDIVIDUAL CLAIMS OF MICHAEL CONNELL AND TONYA CONNELL (THE PARENTS OF PAUL CONNELL)?

C. WHETHER PREJUDICIAL ERROR WAS COMMITTED BY GIVING PLAINTIFFS' INSTRUCTION P-9 OVER THE OBJECTION OF THE DOWNTOWN GRILL?

D. WHETHER PREJUDICIAL ERROR WAS COMMITTED BY DENYING THE DOWNTOWN GRILL'S MOTION FOR A DIRECTED VERDICT AND THE DOWNTOWN GRILL'S REQUEST FOR A PEREMPTORY INSTRUCTION ON ALL CLAIMS?

II. WHETHER THE LOWER COURT ERRED IN DENYING THE DOWNTOWN GRILL'S MOTION IN LIMINE AND ALLOWING PLAINTIFFS TO OFFER EVIDENCE REGARDING ALLEGATIONS OF UNDERAGE DRINKING?

FACTS

¶3. On or about October 8, 1993, Scott Denton, a University of Mississippi student, filed a report with the University of Mississippi Police Department alleging that three (3) of his personal checks had been stolen. Mr. Denton's report was investigated by Captain Wayne Mills of the University of Mississippi Police Department. During the course of Captain Mills's investigation, Mr. Denton told Captain Mills that one of the checks had been passed at the Downtown Grill. Consequently, Captain Mills went to the Downtown Grill and discussed the matter with Chris Gwin, the bartender on duty when the check was passed. Chris Gwin gave Captain Mills a general description of the person who passed the check.

¶4. Upon discussing the matter further with Captain Mills, Mr. Denton told Captain Mills that he strongly suspected that his roommate, Plaintiff Paul Connell, had stolen the checks. Mr. Denton's suspicion seemed to be fueled in part because of the animosity between himself and his roommate, Paul Connell. As a result of Mr. Denton's and Captain Mills's suspicions regarding Paul Connell's involvement in the forgery, Scott Denton moved out of the room he shared with Paul Connell on or about October 10, 1993, at the suggestion of Captain Mills. Afterward, Captain Mills compiled a photo spread containing six (6) photographs of young male students, one of which was Paul Connell, and Captain Mills took the photo spread to Chris Gwin to see if he could identify the person who gave him the check. Captain Mills did not take the actual photographs to Chris Gwin, but took photocopies of the photos instead. Chris Gwin told Captain Mills that he did not feel comfortable making an identification and he was really not sure he could because he only saw the person for as long as it took to write the check and Chris Gwin suggested that Captain Mills should talk to the waiters who actually served the table where the person had been seated. But Captain Mills encouraged Chris Gwin to "help him out" and Chris Gwin, by process of elimination, initialed the photograph of the person who he thought looked the most like the person who gave him the check. As it turned out, the photograph Chris Gwin initialed was a photograph of Scott Denton's roommate, Paul Connell.

¶5. As a result of the totality of the information gathered during his investigation, Captain Mills filed an affidavit charging Paul Connell with forgery because 1) as a roommate Paul Connell had access to Scott Denton's checks, 2) there was animosity between Scott Denton and Paul Connell and 3) Chris Gwin initialed the photograph of Paul Connell as being the person who looked the most like the person who gave him the check. Several weeks later, however, another one of Mr. Denton's checks was presented at another business and the suspect, Brent Beisher, was apprehended and ultimately confessed to the forgery at the Downtown Grill as well. Consequently, Captain Mills dropped the charge he filed against Paul Connell. In its brief, the appellant points out that the photograph of Paul Connell and that of the person who ultimately confessed to the crime were so similar that even Captain Mills misidentified the photographs in open court.

¶6. All of the plaintiffs' causes of action allegedly arose out of one act: Chris Gwin's "identification" of Paul Connell as the person who gave him the forged check. However, Chris Gwin merely cooperated in good faith with a police officer who was investigating a criminal complaint filed by someone else, Scott Denton. And the facts support that his only motivation was to assist Captain Mills with his investigation. Chris Gwin never said or did anything that indicated he was acting or was motivated by anything other than a desire to help Captain Mills in his criminal investigation. Captain Mills's investigation was initiated by Scott Denton, not the Downtown Grill, and no one from the Downtown Grill did anything to encourage or pressure Captain Mills to prosecute anyone.

STANDARD OF REVIEW

¶7. This Court gives "great weight and deference to juries on findings of fact and will not set aside a verdict unless it is against the overwhelming weight of the evidence and credible testimony." Parker v. Thornton, 596 So.2d 854, 858 (Miss.1992). Furthermore, according to Samuels v. Mladineo, 608 So.2d 1170, 1180 (Miss.1992), "no jury verdict should be set aside lightly; the occasion for doing so should never arise except in rare and unusual cases." See also Hans Constr. Co. v. Drummond., 653 So.2d 253, 266 (Miss. 1995). This Court finds that the case sub judice is such a "rare and unusual" case. There was not sufficient evidence presented at trial to warrant a finding and the awarding of $40,000 in damages against the Downtown Grill. The record contains nothing to indicate that Downtown Grill is guilty of malicious prosecution, libel and slander, intentional infliction of emotional distress or gross negligence. Downtown Grill did no more than any citizen may be called on to do with police authority.

ANALYSIS

¶8. Prior to discussing the evidence presented in the case at bar, this Court finds it to be clear that "'a citizen has a privilege to start the criminal law into action by complaints to the proper officials so long as one acts either in good faith, i.e., for a legitimate purpose, or with reasonable grounds to believe that the person proceeded against may be guilty of the offense charged'." Benjamin v. Hooper Elec. Supply Co., 568 So. 2d 1182, 1187 (Miss. 1990) (quoting Harper, James and Gray, The Law of Torts § 4.1 at 406 (2d. ed 1986)).

¶9. "The law allows a wide latitude for honest action on the part of the citizen who purports to assist public officials in their task of law enforcement." Id. at 1187 (citing Harper James and Greg, The Law of Torts § 4.1 at 407; Prosser and Keeton on Torts, § 119 at 871 (5th ed. 1984)). Malicious prosecution is not a favored tort because of a public policy in favor of halting and prosecuting crime and because we hope to enlist all citizens in the effort.

¶10. There are two competing interests in all malicious prosecution cases. The public policy interest in crime prevention insists that private citizens, when aiding law enforcement personnel, ought to be protected against prejudice that is likely to arise from the termination of the prosecution in favor of the accused. Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983); See also State, for the Use & Benefit of Foster v. Turner, 319 So.2d 233, 235 (Miss.1975).

¶11. Equally important is the second interest which protects individuals from being wrongly accused of criminal behavior which results in unjustifiable and oppressive litigation of criminal charges. Consequently, in our orderly society we allow those subjected to criminal proceedings cloaked with malice to recover compensation for their losses. Owens, 430 So.2d at 846. See also 54 C.J.S. Malicious Prosecution § 4 (1987).

¶12. The test of liability in an action for malicious prosecution is: Was defendant actively instrumental in putting the law in force? In order to sustain the action, it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the proximate and movant cause of maliciously putting the law in motion, and, if such fact appears, defendant is liable, although he did not actually make or sign the affidavit on which the warrant was issued, or although he was not the prosecutor of record. Mere knowledge of, or acquiescence or consent in, the acts of another is not sufficient to make one liable; in order to impose liability there must be some affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution, or in affirmatively encouraging its continuance after it has been instituted. Unsuccessful efforts to secure the institution of proceedings, however malicious or unfounded, are not actionable as malicious prosecution.

ΒΆ13. No liability, as for malicious prosecution, attaches merely by reason of testifying as a witness for the prosecution, or by reason of the fact that one's name was indorsed on an indictment or signed to an information or complaint prepared on an independent investigation by the prosecutor. So, also, the mere initialing of a copy of a photograph is not sufficient to subject one to the penalties of a malicious prosecution. The fact that defendant's employee, in an attempt to cooperate with Captain Mills signed his initials and the date on the back of the picture of Michael Connell, where it did not ...


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