J. C. Penney Co., Inc. v. Blush, 50044

• Decision Date: 22 March 1978
• Docket Number: No. 50044,50044
• Parties: J. C. PENNEY COMPANY, INC. and V. A. Taylor v. Gloria Hughes BLUSH.
• Court: Mississippi Supreme Court

Page 590

356 So.2d 590

J. C. PENNEY COMPANY, INC. and V. A. Taylor v. Gloria Hughes BLUSH.

No. 50044.

Supreme Court of Mississippi.

March 22, 1978.

Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, for appellants.

Upshaw, Dorizas & Ladner, Angelo J. Dorizas, Don H. Evans, Jackson, for appellee.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

SMITH, Presiding Justice, for the Court:

J. C. Penney Company Inc. and V. A. Taylor appeal from a $5,000 judgment entered against them by the Circuit Court of the First Judicial District of Hinds County in a suit for malicious prosecution brought by Gloria Hughes Blush. There is no cross appeal.

The incident which gave rise to the suit occurred at about 5:30 in the afternoon at the J. C. Penney Store in Jackson Mall. Mrs. Blush testified that she had gone there for the purpose of buying presents for a Christmas party. She entered through the east door and stopped by the cosmetics department where she picked up two sticks of eyeliner and a stick of lip gloss. She proceeded to the purse rack located twenty or thirty steps away where she knelt down, allegedly to get her billfold out of her purse to determine whether she had enough money to buy one of the purses. She testified that she put the eyeliner and lip gloss on top of her purse and got up to walk away when V. A. Taylor, Security Guard for J. C. Penney Company, asked her to accompany him. She went with Taylor to the store office where the cosmetic items were marked for identification and the police were called. Mrs. Blush was taken to the police station and fingerprinted. After remaining in jail for about two hours bond was posted and she was released.

She was charged with the crime of shoplifting and was tried and convicted of this charge in Jackson Municipal Court. From that conviction she appealed to county court where the case was tried de novo and a jury returned a verdict of not guilty.

Mrs. Blush filed her declaration in the circuit court against appellants charging them with malicious prosecution and demanding damages. The case was submitted to a jury which returned a verdict for Mrs. Blush in the amount of $5,000 as actual damages. Although the issue was submitted, the jury declined to return punitive damages.

Of the matters assigned as error, several appear to be well taken. Upon the trial of the case, Mrs. Blush testified as a witness in her own behalf. Appellants attempted to develop from her the admission that she had been tried and convicted in municipal court on the charge of shoplifting. Upon objection, the court and counsel retired to chambers. Out of the presence of the jury counsel for Mrs. Blush stated to the trial court:

Your Honor, I believe that this line of questioning is going into the fact that Mrs. Hughes was convicted in City Court of the crime of shoplifting and that she appealed de novo to the County Court, where the jury acquitted her.

The court responded:

I'm inclined to agree with you, but not on that reason. I think the eventual outcome of the criminal matter is what determines the situation. (Emphasis added).

After further argument and submission of authorities, the court sustained the objection and said:

. . . (I)t's elemental that the County Court appeal supercedes the conviction in the City Court and completely sets it aside, and I think it would be highly improper to go into the conviction in City Court. Everyone admits that it was appealed and tried de novo in County Court, and acquitted. So the objection is sustained.

The court's action in refusing to allow appellants to develop from Mrs. Blush the fact that she had been convicted of the charge in municipal court was error and requires reversal.

In Brooks v. Super Service, Inc., 183 Miss. 833, 183 So. 484 (1938), suggestion of error overruled, 183 Miss. 843, 185 So. 202 (1938), this Court stated:

A judgment of conviction whether reversed or not has the same evidential value on the question of probable cause for instituting the prosecution. There are three lines of cases dealing with the effect of a judgment of conviction on the question of probable cause for instituting the prosecution.

(1) It is conclusive evidence thereof. (2) It is conclusive evidence thereof unless it was obtained by fraud, perjury, or other corrupt means. This is the rule of the majority of the cases and is that adopted in 3 Rest. Tort, Section 667. (3) It is only prima facie evidence thereof and may be rebutted by any competent evidence which clearly overcomes the presumption that arises from the fact of the defendant's conviction. The first of this line of cases we unhesitatingly decline to follow, but it will not be necessary for us to here determine with which of the other two lines of cases we will align ourselves for the case presented by the declaration will come within both.

(183 Miss. at 844-845, 185 So. at 202).

Under the principle laid down in Brooks, supra, it is clear that evidence of the conviction of Mrs. Blush in city court, although she was later acquitted in county court, was not only admissible upon the fundamental issue in the case sub judice, which was probable cause, but was prima facie evidence that probable cause existed. See also Hyde Construction Co., Inc. v. Koehring Co., 387 F.Supp. 702, 713 (S.D.Miss.1974), 52 Am.Jur.2d Malicious Prosecution, § 179 (1970).

Appellants were entitled to develop the fact of the conviction before the jury by cross-examination of the plaintiff and it was not necessary, unless she denied the conviction, to introduce a certified copy of the court record. As far as the fact of the conviction was concerned, it is not in dispute and was expressly conceded by counsel for plaintiff.

Also assigned as reversible error is the action of the trial court in refusing to grant defendant's requested instruction D-7. This instruction was in the following language:

The court instructs the jury that the fact that the criminal prosecution against plaintiff was eventually terminated in her favor is not enough to show that the defendants acted with malice or without probable cause. The question of whether malice and a lack of probable cause existed is to be determined from a preponderance of the credible evidence in this case.

The refusal to grant this instruction was error. The issue was not whether the prosecution ultimately resulted in a verdict of acquittal in the criminal case but whether there had been probable cause for the action taken by appellants. Probable cause merely means "reasonable cause." Black's Law Dictionary (1968). It has been defined as a reasonable ground for belief in the existence of facts warranting the proceedings complained of. Owens v. Graetzel, 149 Md. 689, 132 A. 265, 267. In other words, the issue was whether the facts and circumstances upon which appellants acted were such as to constitute probable cause or reasonable ground for their belief that appellee was engaged in shoplifting or whether their actions were unreasonable under the circumstances and prompted by malice against Mrs. Blush.

While evidence of Mrs. Blush's acquittal is relevant upon the issue of probable cause, it is neither exclusive nor conclusive upon that issue. The quantum of evidence required to convict in a criminal case is different and is greater than in civil proceedings. In the criminal case, proof beyond a reasonable doubt is necessary and a verdict of acquittal means no more than that the evidence did not remove from the jurors' minds every reasonable doubt of guilt. The jury in the case now before us must reach its decision upon the basis of a preponderance of...