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.
Supreme Court of Mississippi.
*1115 Ronald Henry Pierce, S.T. Rayburn, Oxford, for Appellant.
Michael T. Lewis Pauline Shuler Lewis, Clarksdale, for Appellee.
En Banc.
PITTMAN, Presiding Justice, for the Court:
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 *1116 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 *1117 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,
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.,
¶ 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.,
¶ 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,
¶ 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.
¶ 13. No liability, as for malicious prosecution, attaches merely by reason of *1118 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 appear that he made any effort to procure the indictment, does not make him liable. Winters v. Griffis,
¶ 14. More to the point on conveying information to prosecutors is the following:
The question of information laid before prosecuting authorities has arisen in many cases. If the defendant merely states what is believed, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding.
W.Page Keeton et al., Prosser and Keeton, on the Law of Torts § 119 at 872-73 (5th ed.1984).
¶ 15. This Court addressed instigation in the recent case Godines v. First Guar. Savs. & Loan Ass'n,
¶ 16. The Court finds that Gwin provided what he honestly believed to be accurate information to the best of his knowledge. There was nothing in the record to indicate that Gwin was not acting in good faith when supplying information to the police. He did not knowingly misrepresent information to Captain Mills. Therefore, the Court is not convinced that there is even a valid claim of malicious prosecution to be considered in the case now before us.
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?
Discussion of the Law
¶ 17. "Instructions should be tied to the specific facts of the case and when given merely in the abstract, may be grounds for error." T.K. Stanley, Inc. v. Cason,
¶ 18. As a matter of institutional imperative, "our law presumes that jurors follow the trial judge's instructions, as upon their oaths they are obliged to do." Parker v. Jones County Community Hosp.,
*1119 ¶ 19. "It is a general rule in civil cases that the plaintiff has the duty to ask the court to inform the jury what is necessary to make out the case as charged in the declaration. Moreover, there is no obligation on the part of defendant to request instructions setting out plaintiff's case." Pulliam v. Ott,
¶ 20. The central question to be addressed in the case at bar is, are citizens protected by a qualified privilege for statements made to a law enforcement officer investigating a criminal complaint, filed by someone else? The appellant's brief addresses this issue in great detail and points out the following exchange which occurred during the jury instruction phase of the trial in the case sub judice.
¶ 21. Arguing over jury instructions at the trial of this case, plaintiffs argued:
... we don't think in this case that a communication to a police officer is clothed with such privilege.... There is just no law that says a miscommunication to a Mississippi police officer is protected from libel or slander.
To the contrary, the principle that a citizen has a qualified privilege to make statements to police officers was recognized by the Mississippi Supreme Court as early as the turn of the century.
There is the further established rule, founded upon public policy, that communications which would otherwise be defamatory are protected as privileged if they are made in good faith in the prosecution of any inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing criminal justice. 36 C.J p. 1264. The rule has its application in most cases to inquiries prosecuted or conducted by public officers or their deputies....
See also, Illinois Cent. R.R. v. Wales,
¶ 22. As this Court confirmed in Stewart v. Southeast Foods, Inc.,
¶ 23. A qualified privileged communication is one "made in good faith on any subject matter on which the person communicating has an interest or in reference to which he has a duty to protect to a person having a corresponding interest or duty, even though it contained matters, which, without this privilege, would be actionable, and although the duty is not a legal one, but only moral and social duty of imperfect obligation." J.C. Penney Co. v. Cox,
¶ 24. We also held in Cox that privilege arises when, "evidence establishes circumstances which the law says supported a duty to make a statement of fact honestly believed to be true. A privileged communication is a statement made in good faith with an honest intent to perform a duty, on an occasion of privilege." Id. at 8,
*1120 ¶ 25. Appellant's brief argues that over the objection of the defendant, the trial judge issued the following instruction to the jury absent any instruction pertaining to qualified privilege.
P-2
If you find from a preponderance of the evidence in this case that the Defendant Gwin told Detective Wayne Mills either orally or in writing that:
1. Paul Connell wrote a forged check to the Downtown Grill on September 29, 1993 or substantially similar words, and
2. these words accused the Plaintiff Paul Connell of committing a major crime (forgery)
Then your verdict shall be for the Plaintiff.
¶ 26. Appellant argues that this instruction misstates the applicable law by failing to instruct the jury that Chris Gwin was entitled to qualified privilege and the burden was also on the plaintiffs to prove the statements were made with malice.
¶ 27. This Court had held in Tipps Tool Co. v. Holifield,
The court instructs the jury for the plaintiff, that the statement made by one person of another that he has stolen anything is slanderous per se, and is actionable, if spoken in the presence of one or more persons, and if you believe from a preponderance of the evidence in this case that such a statement was spoken of plaintiff by the defendants and in the presence of one or more persons, then you must find for the plaintiff.
Id. at 689,
The case made by the plaintiff's proof was a case of qualified privilege; and the instruction did not embody a correct statement of the law applicable in cases of that kind. "Malice is the gistthat is, the main point whereon rests an action for libel or slander." Newell on Slander and Libel, Fourth Ed., Sec. 278, p. 316. Where the occasion is one of qualified privilege malice is not implied; and the burden of proving the existence of malice is cast upon the person claiming to have been defamed.... In the above mentioned instruction malice was not referred to. The jury was simply told that if they believed that McDill and Lowery made the statements alleged to have been made by them in the plaintiff's declaration in the presence of one or more persons, the jury must return a verdict for the plaintiff. The instruction meant that the jury might disregard the ... fact that the occasion on which the statements were uttered was an occasion of qualified privilege.... The instruction was such as to mislead the jury entirely as to the law of the case; and it cannot be said that the error was cured by the granting of other instructions to the defendants.
Tipps Tool Co.,
¶ 28. The instruction issued in Tipps is directly on point with the instruction given in the case at bar. In Tipps, this Court found a new trial was necessary. Chris Gwin's statement to Captain Mills was one of qualified privilege and as such malice was not implied. The burden was on the plaintiff to prove Chris Gwin acted with malice. The Downtown Grill requested instruction D-5 which would have instructed the jury on the law of qualified privilege, but this instruction was refused pursuant to plaintiff's objection.
¶ 29. In Louisiana Oil Corp. v. Renno,
A communication made in good faith and on a subject matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without *1121 this privilege would be slanderous, provided the statement is made without malice and in good faith.
...
There are certain occasions on which a man is entitled to state what he believes to be the truth about another, and in doing so public policy requires that he shall be protected, provided he makes the statement honestly and not for any indirect or wrong motive. Such occasions are called occasions of qualified privilege, for the reason that the protection is not absolute, but depends entirely upon the honesty of purpose with which the statement is made. Among such statements is one made on a subject-matter in which the person making it, and the person to whom it is made, have a legitimate common interest.... The underlying principle is public policy.
Louisiana Oil Corp. v. Renno,
¶ 30. It is well settled case law in the State of Mississippi that a new trial should be granted when the jury has been improperly instructed on the law of the case. Tipps Tool Co.,
¶ 31. This Court in remanding for a new trial in Tipps made the following statement regarding the instructions given to the juryinstructions which did not allow for application of qualified privilege:
The instruction meant that the jury might disregard ... the fact that the occasion on which the statements were uttered was an occasion of qualified privilege.... The instruction was such as to mislead the jury entirely as to the law of the case; and it cannot be said that the error was cured by the granting of other instructions to the defendants.
Tipps Tool Co.,
¶ 32. The instruction which called for a new trial in Tipps is almost identical to the instruction given in the case sub judice. By giving P-2 and refusing D-4 and D-5, the trial court committed reversible error. This Court therefore finds that due to the fact that the case law in this State unequivocally states that Chris Gwin is entitled to qualified privilege, the case should be reversed.
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 TONIA CONNELL (THE PARENTS OF PAUL CONNELL)?
¶ 33. This claim by appellants is based on the denial of a directed verdict on the issue that the parents of Paul Connell in no way suffered damages for the claims of malicious prosecution, libel and slander, intentional infliction of emotional distress, and gross negligence. The Downtown Grill also requested a peremptory instruction, D-2, as to the individual claims of Michael and Tonia Connell, but that request was also denied. The Downtown Grill also objected to several of plaintiff's instructions which lumped the claims of Michael and Tonia Connell together with the claims of Paul Connell such that the jury was unable to determine which damages were being sought for which causes of action.
¶ 34. The Downtown Grill correctly argues that "it is self-evident that no one can state a claim for libel and slander, malicious prosecution, intentional infliction of emotional distress and/or gross negligence under these facts except Paul Connell". Because all of these causes of action allegedly arose out of Chris Gwin's "identification" of Paul Connell as the person who gave him the forged check, again it seems self-evident that Michael and Tonia Connell did not have any such claims in their individual capacities. The plaintiffs never discuss the individual *1122 claims of Paul's parents beyond being worried about their sonsomething all parents go through. They make no argument that they were libeled and slandered, maliciously prosecuted or treated in a grossly negligent manner. We assume their claim is for intentional infliction of emotional distress. This Court understands that the parents of Paul Connell reacted the same way any parent would upon learning their son has been put into jail. However, we do not conclude that the duties of being a parent entitle Michael and Tonia Connell to any damages for worrying about their son. This Court realizes what a Pandora's Box would be opened if we allowed both parents and their children to recover for alleged wrongs against the children.
¶ 35. We held in Butler v. Chrestman,
"... if a minor sustains personal injuries under such circumstances of wilfulness, aggravation, or oppression as to justify an imposition of exemplary or punitive damages, upon the wrongdoer, the right of recovery thereof is in the child, and that there can be no recovery of the item by the parent in his own right." It is also said: "... that the measure of damages in a parent's action for injuries to a minor child, other than a case of seduction, is the actual damage which the plaintiff has suffered..."
If this Court is unwilling to allow parents to recover damages for the severe personal injury of their child, we certainly will not allow recovery of damages by a parent for the alleged malicious prosecution of one's minor child. The proper plaintiff, therefore, in the case sub judice is Paul Connell and not Michael and Tonia Connell. See also Zucker v. County of Rockland,
¶ 36. The appellant cites much case law from other jurisdictions on the subject of parents rights to recover for wrongs to their children. In the Ohio case of Lambert v. Garlo,
However, plaintiffs [the parents] were not named in the article, no reference, directly or indirectly, was made concerning them or linking them to the situation and the only reasonable conclusion is that the plaintiffs [the parents] were not directly injured by the statements.
...
... to be actionable it must be shown that the libel was published about or concerning them ... or that defendant had the intention of injuring the relative and was aware of the relative's relationship to the person defamed. See, also, 50 American Jurisprudence 2d (1970) 834, Libel and Slander, Section 311.
Lambert v. Garlo,
*1123 ¶ 37. Downtown Grill's motion for a directed verdict, request for a peremptory instruction and/or motion for a judgment notwithstanding the verdict should have been granted with regard to the individual claims of the parents. Therefore, this case is reversed.
C. WHETHER PREJUDICIAL ERROR WAS COMMITTED BY GIVING PLAINTIFFS' INSTRUCTION P-9 OVER THE OBJECTION OF THE DOWNTOWN GRILL?
¶ 38. Appellant next argues that instruction P-9 was given to the jury over defendant's objection.
P-9
You are instructed that just compensation is a decision to be made by the jury. Your discretion as to the measure of damages is wide, but not unlimited, and you may not act arbitrarily. Exercise your discretion as the amount of damages reasonably, intelligently and in harmony with the evidence of the case and the Court's instructions. The damages for personal injury cannot be assessed by any fixed rule, but you are the sole judges as to the measure of damages in this case.
Should your verdict be for the Plaintiffs in this case, you may consider the following factors to determine the amount of damages to award as may be shown by a preponderance of the evidence:
1. The type of injuries to the Plaintiffs, if any, and their duration;
2. Past, present and future emotional pain and suffering and resulting mental anguish, if any,
3. Reasonable and necessary expenses which were proximately caused by Defendants' wrongdoing.
If you find from a preponderance of the evidence in this case that Plaintiffs have sustained actual damages as a proximate result of the Defendants' false accusation that Paul Connell committed forgery then the Plaintiffs are entitled to a verdict in an amount which will reasonably compensate the Plaintiffs for their loss sustained. Such damages are called compensatory or actual damages and are awarded for the purpose of making the Plaintiffs whole again insofar as a money verdict can accomplish that purpose. (emphasis added).
¶ 39. The Downtown Grill argues that they objected to this instruction on two separate grounds. First, "it instructs the jury that they may compensate Michael and Tonia Connell for damages they suffered, even emotional damages, when they have no claims in their individual capacities. Secondly, it refers to `Defendant's false accusations' in such a manner as to instruct the jury that Chris Gwin in fact accused Paul Connell of forging the check, when this was a hotly contested issue of fact." This Court agrees that defendant's objection should have been sustained.
¶ 40. The plaintiffs' own attorney acknowledged that "... we may have to refine a damage instruction to explain to the jury exactly which damage the parents are seeking versus the son." There was never an instruction given to clarify the damages the parents were entitled to recover. It appears that the jury's award contains some amount intended for the pain and suffering of the parents. The parents were not entitled to any recovery.
¶ 41. By giving instruction P-9 without any clarification, the trial court committed reversible error.
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?
¶ 42. This Court held in Edwards v. Patrick,
"`all evidence with reasonable inferences flowing therefrom must be accepted as true in favor of the party against whom the peremptory instruction is requested, all evidence in conflict therewith is disregarded, and, if such evidence is sufficient to support a verdict for the party against whom *1124 the peremptory instruction is requested, then it should be denied.'"
Id. at 95 (quoting Barkley v. Miller Transporters, Inc.,
¶ 43. Appellant argues that all of plaintiffs' causes of action arose out of one act, Chris Gwin's identification of Paul Connell as the person who wrote the check. The duty is on the plaintiffs to prove Chris Gwin acted out of malice. There is no evidence contained within the record that Chris Gwin acted out of malice in any way. The evidence establishes that Chris Gwin was motivated by his interest to assist Captain Mills with his investigation.
¶ 44. The appellant argues that taking all evidence in the light most favorable to the plaintiffs, there is no evidence from which reasonable jurors could conclude that Chris Gwin acted with malice. We agree. The Downtown Grill's motion for a directed verdict should have been granted. This Court opines that the failure to so grant the motion for directed verdict requires reversal on this issue.
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?
¶ 45. Because this issue is not a necessary issue in the case before this Court, we will only briefly address it. The Downtown Grill filed a motion in limine seeking to prohibit plaintiffs from mentioning, offering evidence, or soliciting testimony regarding allegations of the Downtown Grill allowing minors to consume alcoholic beverages. The motion was denied.
¶ 46. The appellant presents the following argument in its brief. The fact that the person who later confessed to this crime was a minor who was allegedly drinking alcohol in the Downtown Grill on the night in question was not relevant to anyissue presented by this case, as is best evidenced by the fact that the plaintiffs did not include this allegation in their jury instructions. Such evidence was irrelevant and furthermore inadmissible under Rules 404 (improper character evidence of a party) and 608 (improper character evidence of a witness) of the Mississippi Rules of Evidence. Alternatively, any probative value of this evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury and therefore inadmissible under Rule 403. Compare Holladay v. Tutor,
¶ 47. There is no argument made to the contrary. Appellees only argue that the Downtown Grill did not report the forged check because it was afraid the police would find out the young man who eventually confessed to being the person who actually forged the check was underage. This Court finds that this argument is nothing more than speculation on the part of the plaintiffs in this case. There is no proof contained within the record that this proposal by plaintiffs had any truth whatsoever. Speculation does not fall within the duties of this Court in interpreting the laws of our State. Further, this issue has no place in a case claiming malicious prosecution.
CONCLUSION
¶ 48. The trial court issued jury instructions which misstated the law. Chris Gwin was clearly entitled to qualified privilege. Michael and Tonia Connell were not entitled to recover damages for alleged wrongs to their son. Further, we are doubtful that a claim for malicious prosecution was available for Paul Connell. The Downtown Grill did not initiate the criminal proceedings against Paul Connell. Rather, its employee simply cooperated with Captain Mills after being encouraged to do so by Captain Mills. There *1125 is absolutely no evidence of malice on the part of Chris Gwin. Malice is a necessary element in proving a claim of malicious prosecution.
¶ 49. This Court is not quick to reverse a jury verdict. However, this is a "rare and unusual" case causing this Court to reverse the jury's finding.
¶ 50.REVERSED AND RENDERED.
PRATHER, C.J., and JAMES L. ROBERTS, Jr., SMITH and WALLER, JJ., concur.
McRAE, J., dissents with separate written opinion joined by SULLIVAN, P.J., and BANKS, J.
MILLS, J., not participating.
McRAE, Justice, dissenting:
¶ 51. I disagree with the majority's determination that the circuit court erred in not granting the Downtown Grill's motion for a directed verdict. In light of its disposition of the case, however, the extensive discussion of the other issues raised in the appeal is unnecessary and to some extent, incorrect. In particular, the majority has gone astray in its unfounded declaration that statements made to law enforcement officers carry a qualified privilege. No such privilege exists in our common law and the Mississippi legislature has not seen fit to create one by statute. Further, we have not adopted any such privilege in our Rules of Evidence. The circuit court, therefore, properly refused to instruct the jury on the qualified privilege.
¶ 52. The majority states that such a privilege has been recognized by this Court since the turn of the century. It relies on Bigner v. Hodges,
¶ 53. The majority further builds its case for a qualified privilege on Stewart v. Southeast Foods, Inc.,
Such questioning of a person by a merchant, merchant's employee or peace or police officer shall not render such merchant, merchant's employee or peace or *1126 police officer civilly liable for slander, false arrest, false imprisonment, malicious prosecution, unlawful detention or otherwise in any case where such merchant, merchant's employee or peace or police officer acts in good faith and upon reasonable grounds to believe that the person questioned is committing or attempting to commit the crime of shoplifting.
§ 97-23-95. The privilege conferred by the statute, however, is limited to merchants and their employees investigating incidents of shoplifting; it does not extend to other crimes. Moreover, as in Wales, it is the inquiry made on behalf of the interested or injured party that is protected, not any statements that happen to be made during the course of investigation by those questioned.
¶ 54. Finally, the majority relies on Tipps Tool Co. v. Holifield,
¶ 55. No Mississippi cases, statutes or rules of evidence support the majority's position that any assistance provided by private citizens in a criminal investigation is protected by a qualified privilege. Further, no other jurisdictions have made such a pronouncement. Only Tennessee has acknowledged a conditional "public interest privilege" to encourage cooperation with the investigation of a criminal matter. Pate v. Service Merchandise Co.,
¶ 56. We can only wonder why the majority has chosen to discuss the other issues raised after rendering the case on the basis of "qualified privilege." Accordingly, I dissent.
SULLIVAN, P.J., and BANKS, J., join this opinion.