Page v. Wiggins

• Decision Date: 29 January 1992
• Docket Number: No. 90-CA-0327,90-CA-0327
• Citation: 595 So.2d 1291
• Parties: Jerry PAGE v. Granville E. WIGGINS and Food Giant Supermarkets of Arkansas, Inc.
• Court: Mississippi Supreme Court

Page 1291

595 So.2d 1291

Jerry PAGE v. Granville E. WIGGINS and Food Giant Supermarkets of Arkansas, Inc.

No. 90-CA-0327.

Supreme Court of Mississippi.

Jan. 29, 1992.

Rehearing Denied April 22, 1992.

Leman D. Gandy, Greenwood, for appellant.

Richard Benz, Jr., Upshaw Williams Biggers Page & Kruger, Greenwood, for appellee.

En Banc.

PITTMAN, Justice, for the Court:

Finding no dispute as to material facts and finding an absence of the requisite elements for an action based on malicious prosecution or false imprisonment, the summary judgment entered by the Leflore County Circuit Court is affirmed.

I.

Granville Wiggins, assistant manager of Big Star # 9 in Greenwood, Mississippi, was on duty March 30, 1989. A man, identifying himself as Jerry Page, approached Wiggins and inquired about an earnings check. After failing to locate a check in the name of Jerry Page, Wiggins advised him to return the next morning and speak with the manager. The man then selected a few items and asked Wiggins to cash a personal check. Wiggins refused. Two witnesses, Jamie Mims and Camesha Sims, a cashier, were present during the man's request. The man then exited the store with what appeared to be cartons of Salem cigarettes stuffed in the legs of his warm-up suit. Wiggins called the police department while Mims attempted to apprehend the man.

When the police arrived, Wiggins gave them a description and advised them that the thief identified himself as Jerry Page. Wiggins at that time had never been acquainted with Jerry Page. Wiggins signed an affidavit charging the thief with shoplifting. After the police failed to serve Page, the court continued the case.

Subsequently, the police arrested Page on a burglary charge, and while Page was incarcerated on the burglary charge, an officer discovered the outstanding shoplifting warrant. After the court set bond, bondswoman Sybil Markham testified that she presented the misdemeanor bond to the city jail personnel, and then traveled to the Leflore County Courthouse to have the felony bond approved. Upon her return to the city jail, the police released Page.

The Greenwood Police Department subpoenaed Wiggins to appear in court on April 26, 1989, to testify in the shoplifting incident. When asked to make an in court identification of the thief, Wiggins stated that the thief was not present. The court then pointed out Page, but Wiggins stated that he was not the thief. All shoplifting charges were then dismissed against Page.

Jerry Page then filed a civil complaint against Granville E. Wiggins and Food Giant Supermarkets of Arkansas, Inc. (hereinafter Wiggins) on August 28, 1989, in the Circuit Court of Leflore County. Said complaint alleged, in pertinent part, the following:

That on/or about March 31, 1989, the Defendant Granville E. Wiggins executed an affidavit in the police court of the City of Greenwood, Mississippi charging the plaintiff with the crime of shoplifting....

That, as a result of the affidavit executed by the Defendant Granville E. Wiggins, the City Court Judge of Greenwood, Mississippi, issued a warrant for the arrest of the Plaintiff....

That, as a result of the sworn affidavit executed by the Defendant Granville E. Wiggins, and the arrest warrant issued by the City Court Judge, the plaintiff was arrested by the Greenwood Police Department and required to post bond in order to obtain his release.

That, on April 26, 1989, the Plaintiff was required to stand trial in the City Court of Greenwood, Mississippi and was subsequently found not guilty by the Court....

That, during the course of the trial, the Defendant, Granville E. Wiggins, while under oath, testified on several occasions that the Plaintiff was not in the Courtroom at the time, when in fact, the Plaintiff was seated directly in front of the Defendant, Granville E. Wiggins.

That the Defendants knew, or could have reasonable [sic] known, that the Plaintiff was innocent of the crime of shoplifting and their deliberate actions constitutes [sic] false arrest, false imprisonment and malicious prosecution of the plaintiff.

That the defendants' actions are such that they constitute willful, wanton and gross negligences [sic] to the extent that the plaintiff is entitled to recover punitive damages against the defendants.

Subsequently, a summary judgment was entered by the lower court.

II.

Page asserts a claim of malicious prosecution. The elements of malicious criminal prosecution are:

(1) the institution or continuation of original judicial proceedings, either criminal or civil;

(2) by, or at the insistence of the defendants;

(3) the termination of such proceeding in plaintiff's favor;

(4) malice in instituting the proceeding;

(5) want of probable cause for the proceedings; and

(6) the suffering of damages as a result of the action or prosecution.

Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss.1991); Miss. Road Supply v. Zurich-American Ins. Co., 501 So.2d 412, 414 (Miss.1987); Royal Oil Co., Inc. v. Wells, 500 So.2d 439, 442 (Miss.1986); Pugh v. Easterling, 367 So.2d 935, 937 (Miss.1979).

Whether Page could support the elements required in a claim of malicious prosecution is the issue in the case at bar.

Obviously, there was institution of criminal proceedings against Page, by, or at the instance of, Wiggins who executed an affidavit against Page, and the termination of such proceedings in Page's favor. The first three elements of malicious prosecution can be found in the case at bar. And, although there is no indication of damage to Page in the record, at trial Page might have been able to put on proof of how the criminal trial injured him emotionally or professionally. However, the fourth and fifth elements of malicious prosecution cannot be found.

In Mississippi, to determine if the defendants acted with malice, the fourth factor, we must look to their subjective state of mind. Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983).

In an effort to define malice, this Court has said that the term "malice" in law of malicious prosecution is used in artificial and legal sense and applied to prosecution instituted primarily for purpose other than that of bringing offender to justice. Benjamin v. Hooper Electronic Supply Co., 568 So.2d 1182, 1191 (Miss.1990); Royal Oil, 500 So.2d at 444; Owens, 430 So.2d at 846. Malice refers to the defendant's objective state of mind, not his attitude. Malice can be inferred from the fact that a defendant may have acted with reckless disregard for plaintiff's rights. Strong, 580 So.2d at 1293. For example, this Court has found malice where the defendants freely conceded that their lone purpose was to "get their stuff back" and that they really didn't care what happened to plaintiffs. Id.

The controversy at hand contains none of the qualifications of malice. Page's complaint does not offer a theory, or even a speculation, as to the state of mind of Wiggins. Page has not suggested any purpose that Wiggins may have had other than justice. Wiggins neither knew nor had ever been acquainted with Page before the night of the theft. Wiggins acted as a law-abiding citizen by giving the police a description of the thief and advising them that the thief identified himself as Page.

As to the fifth element, for purposes of a malicious prosecution action, probable cause requires a concurrence of an honest belief in the guilt of the person accused and reasonable grounds for such belief. Royal Oil Co., 500 So.2d at 443. One is as essential as the other. Benjamin 568 So.2d at 1190. It is ordinarily necessary for the plaintiff to show circumstances from which absence of probable cause may be inferred. This Court has held that unfounded suspicion and conjecture are not proper bases for finding probable cause. Id. To determine the existence of probable cause, courts look to (1) a subjective element--an honest belief in the guilt of the person accused, and (2) an objective element--reasonable grounds for such beliefs. Strong, 580 So.2d at 1294. For example:

The existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court. That is to say, the court will determine whether upon the appearances presented to the defendant, a reasonable person would have instituted the proceeding.

Id. citing Prosser & Keeton, The Law of Torts Sec. 119 (5th ed. 1984).

Wiggins honestly believed that the thief was Page. And a reasonable person in the same situation would have also believed that the thief was Page. Wiggins had probable cause to instigate the criminal proceeding against Page.

Clearly, the elements of malice and want of probable cause cannot be found in the case at bar so as to support a claim of malicious prosecution against Wiggins. The summary judgment was not error.

III.

With false imprisonment, a plaintiff must prove (1) he or she was detained and (2) that the detention was unlawful. Thornhill v. Wilson, 504 So.2d 1205, 1208 (Miss.1987). In the instant case Page was neither detained nor incarcerated on the shoplifting charge. Because the police arrested Page on a burglary charge and subsequently charged him with shoplifting, this issue is without merit.

IV.

Page argues that the lower court erred in granting summary judgment because a factual dispute existed. In both his Response to Motion for Summary Judgment and Motion to Strike Defendants' Affidavits to Summary Judgment, Page pointed out factual discrepancies in Wiggins' statements. In Wiggins' initial statement, prepared by the Greenwood Police Department, he said that he chased the thief on the night in question, whereas, in his affidavit in support of the Motion for Summary Judgment, he stated that a customer chased the thief. On April 26, 1989, Judge Alan Carter presided over the shoplifting charges in city court and...