Comer v. Gregory, No. 50312

• Decision Date: 20 December 1978
• Docket Number: No. 50312
• Citation: 365 So.2d 1212
• Parties: James Elton COMER v. R. D. GREGORY, Administrator of the Estate of Sherman K. Chesnutt, Deceased.
• Court: Mississippi Supreme Court

Page 1212

365 So.2d 1212

James Elton COMER v. R. D. GREGORY, Administrator of the Estate of Sherman K Chesnutt, Deceased.

No. 50312.

Supreme Court of Mississippi.

Dec. 20, 1978.

Rehearing Denied Jan. 24, 1979.

Parker, Averill, Funderburk & Butts, Roy O. Parker, Tupelo, for appellant.

Ed W. Jenkins, Booneville, for appellee.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

ROBERTSON, Presiding Justice, for the Court:

James Elton Comer appeals from a judgment of the Circuit Court of Itawamba County, Mississippi, in his favor and against Sherman Chesnutt, for $125 damages based on a jury verdict for that amount rendered on a second trial of his suit for personal injuries against Sherman Chesnutt, now deceased.

This suit was based on an assault and battery committed upon Comer when he was shot in the lower right back by Sherman Chesnutt.

The jury returned a verdict in Comer's favor for $9,000 on the first trial. Comer moved for an additur or, in the alternative, for a new trial on the issue of damages only. The trial court granted an additur of $5,500, thus raising the verdict to $14,500. Defendant rejected the additur and a second trial on damages only was held on September 9 and 10, 1975. The jury on the second trial returned a verdict for $125 damages, and the trial court refused Comer's Motion for an additur or a new trial.

Comer has assigned as error:

(1) The verdict of the jury for $125 damages where plaintiff's actual damages were $9,433.58, was palpably against the weight of the evidence;

(2) The verdict of the jury for $125 damages evinces bias, passion and prejudice on the part of the jury; and

(3) Circumstances did not exist to mitigate plaintiff's damages, as provided in Mississippi Code Annotated section 11-7-61 (1972).

Chesnutt has assigned as error on his cross-appeal:

(1) The trial court committed reversible error by refusing to grant jury instruction No. D-19.

(2) The trial court committed reversible error by the exclusion of testimony offered on behalf of the defendant concerning the intoxication of the plaintiff and his companion.

Shortly after midnight on May 9, 1973, 25-year-old James Elton Comer and his companion, Ricky Griggs, went upon the posted property of Sherman Chesnutt to fish in his catfish pond. Chesnutt stocked his pond with channel catfish, regularly fed these fish, and charged a fee for fishing in it. He supplemented his income as a farmer with these fishing fees. He had been having trouble with people fishing in his pond without his permission, so on this particular night his pond was being guarded by Danny Chesnutt, his 28-year-old son. After observing Comer and Griggs fishing in the pond, Danny went to his father's home nearby and woke him up.

Sherman Chesnutt dressed and with his son walked down a public gravel road which bordered his property. Sherman stationed himself at a gate on a small dirt road leading to the catfish pond, and Danny walked down the public road in search of the fishermen's car.

After fishing for a short time, Comer and Griggs walked back up the dirt road to the gate. There they were confronted by Sherman Chesnutt. He pointed his 12-gauge shotgun at them and ordered them to raise their hands above their heads. When they raised their hands one of them dropped a rod and reel and also a bottle of rum, which was 2/3Rds empty. Neither Comer nor Griggs would give his name nor would they tell Chesnutt where they were from. Chesnutt thought that they were drunk from the way they were acting. Chesnutt informed Comer and Griggs that he was taking them to the law. Griggs walked down one side of the road and Comer the other side. Sherman Chesnutt moved his flashlight from Griggs to Comer and testified that Comer at that time brought his hand down "and was going for the front of his coveralls", and that Comer appeared to be turning toward him. That is when Chesnutt shot Comer. He testified that he thought Comer was going for a gun and that he was fearful that Comer would shoot him.

Comer was transported to a hospital where he was operated on and was in the hospital in serious condition for several weeks. His doctor testified that he would not have any permanent injuries but that he would have a disfiguring scar from the operation.

After the shooting, Sherman Chesnutt immediately reported the incident to Constable Billy Gene Burns, who accompanied Chesnutt back to the scene of the shooting and there noted the bottle of rum 2/3Rds empty. Sherman's testimony was corroborated by that of his son, Danny Chesnutt.

Comer's testimony was that his medical and hospital expenses amounted to $7,833.58, and that he had missed eight weeks from work as a pharmacist at a salary of $200 per week, so he contended that his total actual damages were $9,433.58.

Mississippi Code Annotated, section 11-7-61 (1972), provides:

"Mitigating circumstances. In actions for libel or slander, Assault and battery, and false imprisonment, The defendant, under the plea of not guilty, May give in evidence any mitigating circumstances to reduce the damages, notwithstanding he may also have pleaded a justification." (Emphasis added).

Mitigating circumstances certainly would have been that these two young men were knowingly trespassing on ...