Benjamin v. Hooper Electronic Supply Co., Inc., 07-CA-59250

CourtUnited States State Supreme Court of Mississippi
Citation568 So.2d 1182
Docket NumberNo. 07-CA-59250,07-CA-59250
PartiesBenny T. BENJAMIN, Jr. v. HOOPER ELECTRONIC SUPPLY CO., INC., d/b/a Hooper Sound and Kevin Ray Cash.
Decision Date03 October 1990

Jimmy D. McGuire, McGuire & Cox, Gulfport, for appellant.

David L. Cobb, Bryan Nelson Allen Schroeder Cobb & Hood, Robert W. Atkinson, Bryan Nelson Firm, Gulfport, for appellees.


ANDERSON, Justice, for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Harrison County wherein the trial judge granted the defendants' motion for a directed verdict at the close of the trial. The appellant, Benny T. Benjamin, Jr. (Benjamin) charged appellees, Hooper Sound and Kevin Cash (collectively Cash) with malicious prosecution and intentional infliction of emotional distress. Benjamin appeals maintaining that the trial court erred in directing a verdict in favor of Cash. We agree and reverse and remand for a new trial.


On March 14, 1985, Benjamin went to Hudson's Salvage Center in Gulfport and purchased a Yamaha stereo amplifier for approximately $189.00. There were no installation instructions in the package so the following day Benjamin and his friend, John Burts, went to Hooper Sound in Gulfport to get installation instructions.

While Benjamin and Burts were in Hooper Sound, Kevin Cash, the manager, approached them and offered assistance. Benjamin informed Cash that he needed instructions, but Cash told him he could not give him any. Benjamin and Burts remained in the store looking at various items throughout the store. They noticed an amplifier identical to the one that Benjamin had purchased the day before priced at $350.00. Realizing that he had gotten a bargain, Benjamin told Burts, and they began laughing about the price. Cash overheard Benjamin say that he had not paid nearly that amount for his amplifier. At that moment Cash interjected, "Between you and I, it's got to be hot." 1 Benjamin responded that it must be one of those direct-from-the-factory deals. Cash did not say anything else, but he sent another salesman over to talk to Benjamin and Burt.

According to the testimony, Benjamin and Burt drove to Hooper Sound in Benjamin's yellow Volkswagen. Its tinted windows were closed; the interior is black; and consequently, it is virtually impossible to see into the car. In addition, one of the windows did not have a handle so it could not be lowered. Benjamin did not lock the doors, but he placed the box containing the amplifier behind the passenger seat on the back. Although the box was not completely concealed, it was not in plain view either.

After Cash summoned the salesman, he went outside with the intent of investigating Benjamin's amplifier. Nobody saw him go into Benjamin's car and Cash vehemently denies doing so. 2 According to his testimony, Cash was able to obtain the serial number of the amplifier by looking through the passenger window to see the serial number on the amplifier. This was so although the number was on a yellow tag no larger than 1 1/2 inches by one inch.

Cash wrote the tag number of the car, the serial number of the amplifier, a description of the car and a description of Benjamin. He then called the police and gave them the serial number of the amplifier and asked if it were stolen. Later that evening Benjamin was arrested and interrogated concerning the amplifier. 3 During the interrogation, Cash walked in and the interrogating officer, Glen Terrell, stopped questioning Benjamin and went to talk to Cash. Cash spent approximately an hour to an hour and a half talking to Terrell. During their conversation Cash gave a recorded statement to the officer. He gave the officer the serial number he had taken, and he informed Terrell of what Hooper Sound would charge for the amplifier. He also told the officer what amount Benjamin said he had paid for his amplifier. Cash, moreover, identified Benjamin from a photographic lineup.

A preliminary hearing was held sometime later, and Cash testified. Henry Wallace, the manager of Hudson's Salvage also appeared and testified on Benjamin's behalf. Wallace testified that Benjamin purchased the amplifier at Hudson's on the day before this entire episode. Following the hearing, Benjamin was bound over to the grand jury which returned an indictment for receiving stolen property. This indictment, however, was appropriately dismissed. 4

Benjamin filed this lawsuit for malicious prosecution after the dismissal of the criminal prosecution. In support of this appeal, Benjamin specifically points to Cash's testimony on cross-examination as an adverse witness during the trial. He notes that Cash acknowledged that he could have asked Benjamin where he had bought the amplifier or could have asked him how he got such a good deal. Moreover, Benjamin emphasizes the fact that Cash took it upon himself to initiate the investigation--searching his car and relaying the results of that search to the police. Because of this information, along with Cash's subsequent identifications of Benjamin and his car, Benjamin was arrested and his car towed away and searched. His amplifier was confiscated, and he was interrogated and charged with receiving stolen property. As a result of this activity, Benjamin had to obtain counsel and post bond to be released from jail. 5 According to Benjamin's brief, but for Cash's actions at "every essential turn in prosecuting [him]," he would never have been arrested and charged with receiving stolen property.

In this appeal, Benjamin alleges the following error:



At the trial and after Benjamin had presented all of his evidence and rested his case, Cash moved for a directed verdict, which the Court took under advisement and at the same time instructed Cash to present

his case. After doing so, and resting his case, defense counsel again moved for a directed verdict, at which time the motion was granted.


When the defendant moves for a directed verdict at the close of the Plaintiff's case-in-chief, the circuit court must consider the evidence before it at that time in the light most favorable to the plaintiff, giving the plaintiff the benefit of all favorable inferences that reasonably may be drawn from that evidence. Hall v. Mississippi Chemical Express, Inc., 528 So.2d 796, 798 (Miss.1988); see also Dale v. Bridges, 507 So.2d 375, 377 (Miss.1987); Jones v. Hatchett, 504 So.2d 198, 205 (Miss.1987); Collins v. Ringwald, 502 So.2d 677, 678-79 n. 1 (Miss.1987); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975). Moreover, when this Court examines a trial court's decision regarding a motion for directed verdict, it must do so with great care. In addition, just as the trial court, this Court must consider the motion in light most favorable to the party opposing the motion. Guerdon Industries, Inc. v. Gentry, 531 So.2d 1202, 1205 (Miss.1988); see also White v. Hancock Bank, 477 So.2d 265, 269 (Miss.1985). The motion is granted only where the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men and women could not have arrived at a verdict for the non-movant. Guerdon, supra at 1205; accord Smith v. Wendy's of the South Inc., 503 So.2d 843, 844 (Ala.1987) (If, by any interpretation, the evidence can support a conclusion in favor of the non-moving party, this Court must reverse) (citations omitted). These principles have been repeated in case after case. See, e.g. Rester v. Morrow, 491 So.2d 204, 211 (Miss.1986) and Collins, 502 So.2d at 678 n. 1.

This Court, moreover, has recognized the constitutional concerns involved in allowing the jury to resolve factual issues brought out during trial. See City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983); see also Rester, supra at 211-12; Miss. Const. (1890) Art. 3, Sec. 31. Not only has our Court emphasized the jury's role in a trial, but the United States Supreme Court noted the jury's importance as well:

Credibility determination, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Grice v. City of Dothan, 670 F.Supp. 318 (M.D.Ala.1987).


Before discussing the evidence involved in this case, it must 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." Harper, James and Gray, The Law of Torts Sec. 4.1 at 406 (2d. ed 1986) (emphasis added) [hereinafter Harper & James]. 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 407 (emphasis added) see also Prosser and Keeton on Torts, Sec. 119 at 871 (5th ed. 1984) (the law encourages honest citizens to bring criminals to justice). Malicious prosecution is not the most favored tort because of a public policy in favor of halting and prosecuting crime.

There are two competing interests in all malicious prosecution cases. The public policy interest in crime prevention insists that private citizens, when aiding law...

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