Graves v. Graves
| Citation | 531 So.2d 817 |
| Decision Date | 05 October 1988 |
| Docket Number | No. 57994,57994 |
| Parties | John L. GRAVES, Sr. v. John L. GRAVES, Jr. |
| Court | United States State Supreme Court of Mississippi |
Ronald L. Whitting, Guy, Whitting & Ott, McComb, for appellant.
Keith Starrett, Magnolia, for appellee.
Before DAN M. LEE, P.J., and ROBERTSON and GRIFFIN, JJ.
I.
The 1984 Super Bowl spawned a super brawl among the Graves family at the Marion Manor Apartments in McComb, Mississippi, following which plaintiff sued his father, brother and sister-in-law for damages resulting from an assault and battery. The jury found for plaintiff in the amount of $30,000.00. The appeal from judgment thereon presents questions regarding defenses available in an assault and battery action and the requirements of proof of future medical expenses and lost earning capacity as elements of damage. We affirm on liability and reverse and remand for a new trial on damages only.
II.
First, the lineup. John L. Graves, Jr., also known as Johnny, is an adult resident of McComb, Mississippi. Johnny was the Plaintiff below and is the Appellee here.
John L. Graves, Sr., is Johnny's father. Vince and Lane Graves, husband and wife, are Johnny's brother and sister-in-law respectively. All were Defendants below. John L. Graves, Sr., is the sole Appellant.
On January 22, 1984, Vince Graves and his wife, Lane, together with Vince's father, John, Sr., were watching the Super Bowl on television at Vince's apartment in McComb, Mississippi. Also in the apartment was Vince and Lane's son, Vince, Jr ten months old. During half time John, Sr. called another son, Johnny, on the telephone and invited him to the apartment to watch the second half of play. Soon thereafter Johnny arrived with three of his friends to watch the game. Johnny's wife, Judy, arrived ten to fifteen minutes later.
Vince and Lane began to chide Johnny about the absence of his favorite team, the Dallas Cowboys, from the Super Bowl. The Defendants denied that they had goaded Johnny. In any event, Johnny, feeling that he was not welcome, declared that he was leaving and instructed his wife and friends to accompany him out of the apartment.
Immediately after Johnny had left with his wife and friends there was a loud crash outside the apartment door which sounded like breaking glass. Vince investigated and discovered that Johnny had thrown an empty quart bottle of beer on the sidewalk immediately in front of his apartment door. Johnny admitted breaking the bottle. Words were exchanged and a scuffle ensued which carried the combatants, Vince and Johnny, back through the door and into the apartment.
John, Sr., intervened and attempted to break up the fight by restraining Johnny. While Johnny was so restrained by his father, Vince tackled his brother and father and all three fell to the floor. While Johnny was on the floor, and still being restrained by his father, Vince bit Johnny on the face, tearing off his left lower eyelid in the process. While this was occurring, Lane Graves, joined in the fray by hitting Johnny with the receiver of a telephone.
Johnny was taken to a hospital where a doctor sutured his wound. He later underwent two surgical procedures in an effort to reconstruct the eyelid. Additionally, because his tear duct is damaged, he is required to artificially irrigate and cleanse his left eye. He had incurred nearly $8,500.00 in medical expenses at the time of trial.
On February 28, 1984, John L. Graves, Jr., (Johnny) filed suit in the Circuit Court of Pike County, naming as defendants his father, John L. Graves, Sr., (John, Sr.), his brother Vince Graves, and Vince's wife, Lane Graves. Johnny's complaint demanded damages resulting from the assault which Johnny alleged he had suffered on January 22, 1984.
The case was called for trial on July 15, 1986. Only four witnesses appeared: Johnny, his wife Judy, and defendants Vince and Lane. John, Sr., did not testify. Both Lane and Vince testified that Johnny was the aggressor in the fight. Lane admitted hitting Johnny with a telephone receiver but testified she did not know how Johnny's eye came to be hurt. Vince denied that he had bitten his brother. Both the plaintiff and the defendants accuse each other of drunkenness. All parties admitted to at least moderate drinking that day. The jury returned a verdict for Johnny and against all defendants in the amount of $30,000.00. From this verdict, John, Sr., appeals.
III.
John, Sr., first urges that the Circuit Court erred when it refused his requested comparative negligence instruction. At trial all defendants requested that the Court instruct the jury that it should reduce John, Jr.'s damages in proportion to the extent that his negligence contributed to his own injury. The Court refused this instruction, stating "This is not a negligence case."
John, Sr., relies upon Comer v. Gregory, 365 So.2d 1212 (Miss.1979), and maintains that "all questions of negligence and contributory negligence shall be for the jury to determine" pursuant to Miss.Code Ann. Sec. 11-7-19 (1972).
The appellant's reliance upon Comer, however, is misplaced. The Court in Comer was examining Miss.Code Ann. Sec. 11-7-61 (1972)--which is quite relevant here 1--and which provides 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.
The opinion in Comer draws a logical parallel between the application of this statute and the comparative negligence statute, Section 11-7-17, in its examination of a defendant's entitlement to a mitigating circumstances instruction generally. That is, just as Section 11-7-19 is relevant to the defense of a negligence action, Section 11-7-61 identifies defenses available to intentional tort suits. Nowhere in the Comer opinion does the Court sanction the use of comparative negligence as a defense to an intentional assault.
The authorities in this state and elsewhere are unanimous in declaring that the defenses of contributory or comparative negligence have no application to cases of intentional tort such as assault and battery. "The doctrine of contributory negligence does not apply to an action to recover damages for an assault and battery." 6 Am.Jur.2d Assault and Battery Sec. 153 (1964). Prosser & Keeton, The Law Of Torts, 462 (5th ed. 1984). See Jackson v. Brantley, 378 So.2d 1109, 1112 (Ala.App.1979) ().
The same rule appears in our law, although we have not spoken to the point for many years. St. Louis & San Francisco Railroad Company v. Ault, 101 Miss. 341, 352, 58 So. 102, 105 (1912); Fuller v. Illinois Central Railroad Company, 100 Miss. 705, 716-17, 56 So. 783, 785 (1911); Christian v. Illinois Central Railroad Company, 12 So. 710, 711 (Miss.1893). The rule is sound and we reaffirm it.
The assignment of error is denied.
IV.
John, Sr., next urges that the Circuit Court erred when it submitted to the jury, over his objection, an instruction that the jury could award damages for future medical expenses and lost earning capacity. The instruction in relevant part reads:
Should your verdict be for John L. Graves [Jr.] you may consider such of the following factors in determining the amount of damages to be awarded as may be shown by a preponderance of the evidence:
In arriving at the amount of your award, if any, for loss of future earnings, you should consider what the plaintiff's health, physical ability, age, and earning power or capacity were before the injury and the effect of the plaintiff's injuries, if any, upon them.
The only testimony offered at trial relevant to these elements of damage was contained in the testimony of John L. Graves, Jr. On direct examination Johnny testified as follows:
Q. Mr. Graves, what is the current condition of your eye?
A. Well, it's--it's in better shape than it was, but I get a lot of irritation out of it.
Q. All right. Do you need other surgery?
A. Yes, sir.
Q. Do you know how much the additional surgery is going to cost?
BY MR. WHITTINGTON:
I object to this, Your Honor. He's not competent to testify about either of those, except based on hearsay. And that's not competent.
Well, if it's an assertion intended to be offered to prove the truth of what was said, I sustain the objection as hearsay.
BY MR. STARRETT:
Just the fact that it was said, Your Honor.
If it's only for the fact that it was said, I will overrule the objection.
In his later testimony, Johnny related the doctor's prognosis and planned course of treatment over the objections of the defense. He also testified that the amount of irritation in his damaged eye is increased when engaged in manual labor because dust and sweat cause the eye to become irritated.
Before a party may submit to the jury the task of resolving factual issues, he must place before the jury competent evidence legally sufficient to undergird a decision in his favor. Detroit Marine Engineering v. McRee, 510 So.2d 462, 465 (Miss.1987). "A party to an action is entitled to have the jury instructed...
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