Junior Food Stores, Inc. v. Rice, 92-CA-00711-SCT

• Decision Date: 21 March 1996
• Docket Number: No. 92-CA-00711-SCT,92-CA-00711-SCT
• Citation: 671 So.2d 67
• Parties: JUNIOR FOOD STORES, INC. d/b/a Super Stop v. Ralph Russell RICE, Jr.
• Court: Mississippi Supreme Court

Page 67

671 So.2d 67

JUNIOR FOOD STORES, INC. d/b/a Super Stop v. Ralph Russell RICE, Jr.

No. 92-CA-00711-SCT.

Supreme Court of Mississippi.

March 21, 1996.

Appeal No. 37679 from Judgment dated April 8, 1992; Chester A. Henley, Ruling Judge, Hinds County Circuit Court, First Judicial District.

Diane V. Pradat, Joseph L. McCoy, McCoy Wilkins Stephens & Tipton, Jackson, for Appellant.

Wm. Andy Sumrall, Jackson, for Appellee.

Before DAN M. LEE, C.J., SULLIVAN, P.J., and PITTMAN, J.

PITTMAN, Justice, for the Court.

STATEMENT OF THE CASE

On February 22, 1989, the plaintiff, Ralph Russell Rice, Jr., (hereinafter "Rice") filed a complaint against Junior Food Stores, d/b/a Super Stop, (hereinafter "Super Stop"), alleging malicious prosecution by Super Stop for causing an affidavit to be issued charging him with grand larceny. Super Stop, in its answer, denied the allegations of malicious prosecution and averred that it did have probable cause in having the affidavit issued. On April 1, 1992, they held a trial in the Circuit Court of the First Judicial District of Hinds County, Mississippi, before the Honorable Chet Henley, sitting as Special Circuit Court Judge. After the close of the plaintiff's case, the defendant made its motion for a directed verdict which the court denied. Thereafter, the defendant put on its proof and renewed its motion for a directed verdict after the close of its case in chief. The court denied this motion and the case went to the jury. After deliberation, the jury came back with a verdict in favor of Rice for $15,000.

Super Stop filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Rice filed a motion for an additur and Super Stop, by motion ore tenus, requested a remittitur. All motions were denied, and on July 2, 1992, Super Stop filed its Notice of Appeal to this Court. Super Stop, on July 9, 1992, filed a second Notice of Appeal with an amended certificate of service.

The issues on appeal to this Court are as follows:

I. WHETHER THE PLAINTIFF FAILED TO PROVE ALL THE NECESSARY ELEMENTS REQUIRED FOR A MALICIOUS PROSECUTION CLAIM.

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION OF THE APPELLANT FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL.

III. WHETHER A REMITTITUR SHOULD HAVE BEEN ORDERED BECAUSE THE VERDICT WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AND WAS THE RESULT OF BIAS, PREJUDICE OR PASSION.

STATEMENT OF THE FACTS

The facts relevant to issues involved in this case center on whether Super Stop, through its representative, had probable cause to initiate criminal proceedings against Rice for grand larceny and whether it did so without malice. Super Stop caused an affidavit to be issued against Rice for grand larceny as a result of the theft of money from the Super Stop store (hereinafter "Briarwood store") number 27 located at Briarwood Drive and Northside Drive (or North State Street) on or about December 6, 1987.

Rice, an employee of Super Stop for more than three years, normally worked at Super Stop store number 41 on the late shift from 11:00 p.m. through 7:00 a.m. In performing his duties as a clerk at the store, Rice did paperwork, made the deposits, stocked and cleaned the store, waited on customers and ran the cash register. Beginning on Monday of the week of December 5, 1987, Rice was sent to the Briarwood store to work as a substitute for supervisor Daniel Harris who was on vacation that week. The Briarwood store's hours extended until midnight and Rice was put on the 3:00 p.m. through 12:00 midnight shift. Rice's duties at the Briarwood store were the same as those at his usual store and included stocking and cleaning the store, dipping the gas tanks and handling the gas, running the cash register, and doing the paperwork.

On Saturday night, December 5, 1987, Rice worked the late shift at the Briarwood store, closed the store at midnight, and by the time he had finished his paperwork, it was between 1:30 a.m. and 2:00 a.m. Rice testified that he did the paperwork involving the money, counted the money, wrapped the paperwork around the money, placed both in the safe and locked the safe. The safe key was placed in the register where it was normally kept. Thereafter, Rice turned on the burglar alarm, locked the doors to the outside, and left the store. It was Rice's responsibility to close the store at the end of his shift, place the money to be deposited the next day in the safe, lock the safe, turn on the alarm system and lock all doors before leaving for the night. After leaving the Briarwood store, Rice took the Briarwood store key to his regular store, and left the key with the employee there, as was the custom for Super Stop.

On the morning of December 6, 1987, a Sunday, Earnestine Junior arrived at the Briarwood store to begin her 6:00 a.m. to 3:00 p.m. shift. Upon her arrival, she found that the front door was unlocked. She entered the store and found the safe door open. There was no noticeable damage to the front door or the safe door. The money and report sheet that should have been in the safe were missing. Ms. Junior subsequently called either Harry Hammond, the district manager, or a Mr. Burns upon her discovery of the missing money.

That same morning, Hammond called Rice at home and told him that the door of the Briarwood store had been opened and someone took the money. Hammond also asked On Monday morning, December 7, 1987, Rice was contacted at home by Daniel Harris, a supervisor at the Briarwood store who had just returned from a vacation, and told to take a polygraph test. That same day, Daniel West, a licensed polygraph examiner, gave to Rice a polygraph test in West's office. Super Stop hired West to give the test and had employed him since 1981. The questions to be asked were listed on a report sheet and previewed by Rice before taking the test. Rice also signed a waiver giving West the right to test him and indicating that he took the test voluntarily. West administered only one test to Rice, but he ran three separate charts on each question. In West's opinion, the results from the test indicated deception in some of the answers that Rice gave, including his answers that he put the money in the safe, that he did not take the money, and that he does not know the location of the money. Rice, however, testified that West told him that the results were inconclusive and to come back later to take the test again. He also informed West that he was tired from a lack of sleep the night before the examination. West admitted that a lack of sleep or being upset can affect the test which works off the central nervous system and part of the autonomic nervous system. Later, Rice went to work at his usual store on his usual shift from 11:00 p.m. through 7:00 a.m.

Rice how much money had been left in the safe to be deposited. Rice told Hammond that he had left a slip of paper with the totals lying in the garbage. According to Rice, there was around $2,900 in the safe that night, and Hammond found the paper showing such in the garbage. Rice returned to the Briarwood store that Sunday evening at 3:00 p.m. to work the shift that he had been working there. He repeated the same closing procedures that he had done the previous night, including counting the money, putting it in the safe with the paperwork, locking the doors, and taking the Briarwood-store key to his usual store and placing the key in the register at that store.

Including Rice, Super Stop required that three employees (who also had worked the day prior to when the money was discovered missing) take polygraph examinations. The other two employees, who took the test and showed no deceptions, were not present at the time that Rice took the test. West could not remember when he gave the test to Rice or to the other two employees, but he said that the other two employees took the test within a day or two. Other employees who had keys to the store and at least three former employees who had keys when Super Stop employed them were not questioned or given polygraph examinations. West admitted that polygraph examinations can result in erroneous conclusions and are not 100% accurate.

After giving the test, West called Hammond to report the results of the examination. He then sent the report documenting the results to Hammond. Hammond subsequently signed an affidavit to be issued against Rice because he believed Rice was responsible for the missing money.

When Rice arrived at his usual store on Monday night at 11:00 p.m. to begin his shift, a person was working in his place and told Rice that Hammond wanted Rice to call him. Rice called Hammond who told Rice that if he wanted to keep his job, he needed to be at the office of Super Stop in the morning. The next day when Rice appeared at the main office of Super Stop, Hammond accused him of taking the money from the Briarwood store. Hammond then told Rice that he was terminated and that there was a warrant out for his arrest. The Jackson Police Department came and arrested Rice at the Super Stop office, placed handcuffs on him and took him to the police station. At the police station, they interrogated Rice, took fingerprints and photographs, and booked him. He was charged with grand larceny. Rice's parents came to the police station shortly thereafter and posted bail, paying a bonding company $585. He also paid a wrecker fee for his automobile, an impound fee, and hired an attorney to defend him.

On the charge of grand larceny, the grand jury returned a "no bill" against Rice. At trial, Rice stated that he had no proof that Hammond had him arrested for any reason other than prosecuting him for a crime that Hammond thought that he had committed.

However, Rice subsequently stated on redirect examination that while he could not prove it, he was confident that Hammond prosecuted because Rice had Hammond's son or relative arrested on a Friday night before the theft...