Holliday v. Pizza Inn, Inc., 91-CA-01106-SCT

• Decision Date: 03 August 1995
• Docket Number: No. 91-CA-01106-SCT,91-CA-01106-SCT
• Citation: 659 So.2d 860
• Parties: Tim HOLLIDAY v. PIZZA INN, INC. and Jackie's International, Inc.
• Court: Mississippi Supreme Court

Page 860

659 So.2d 860

Tim HOLLIDAY v. PIZZA INN, INC. and Jackie's International, Inc.

No. 91-CA-01106-SCT.

Supreme Court of Mississippi.

Aug. 3, 1995.

D. Briggs Smith, Jr., Smith Phillips Mitchell & Wilroy, Batesville, for appellant.

Robert H. Harper, Shuttleworth Smith McNabb & Williams, Memphis, TN, for appellee.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

HAWKINS, Chief Justice, for the Court:

On May 11, 1988, appellant Tim Holliday filed a Complaint against Pizza Inn, Inc., Jackie's International, Inc., and Billy Gray d/b/a County Line Grocery ¹ in the Circuit Court of Tate County asking for $679,700.95 in compensatory damages and $1,000,000 in punitive damages. Pizza Inn, Inc., (hereinafter "Pizza Inn") filed a separate answer on July 5, 1988, and on September 15, 1988, Jackie's International, Inc., (hereinafter "Jackie's") filed their own separate answer. Both sides conducted extensive discovery. On March 29, 1991, Pizza Inn and Jackie's filed a Defendants' Motion for Summary Judgment. Holliday replied with his Plaintiff's Response to Motion for Summary Judgment on July 3, 1991, which was answered in turn on July 15, 1991, by a Defendants' Rebuttal to Plaintiff's Response to Their Motion for Summary Judgment. On October 21 1991, the court rendered a judgment granting summary judgment for the defendants. We affirm.

FACTS

On the night of June 26, 1987, Holliday and his friend, Eric Brownlee, officiated a Little League baseball game in Greenleaf. ² After the game, they drove to the Pizza Inn in Senatobia. Upon arrival Holliday was asked by his friend and Pizza Inn manager, Crystal McGrew, to help deliver some pizzas. Holliday knew McGrew primarily through the four or five after-hour parties that they had had at the Pizza Inn over the preceding two months. ³ Although not a Pizza Inn employee, Holliday agreed and the two of them drove off to make the deliveries. By the time they returned plans were being made by the Pizza Inn employees to hold a party later that night at the restaurant. At 10:30, ⁴ the doors to the public entrances were locked, the "closed" sign hung on the door, and McGrew counted the money and food and checked the register off. She then took some cash out of the register and left with Holliday and two others to buy some beer, whiskey, and wine. Because Tate County is dry, the four drove to Panola County for purchases, where McGrew bought four cases of beer, a pint each of Crown Royal and Jim Beam whiskey, and six or seven fifths of Strawberry Hill wine. Holliday, only seventeen years of age, waited in the car. They then returned to the Pizza Inn. Soon several other people arrived and entered through the employee entrance. Festivities began. The group drank, cooked pizzas and smoked some marijuana provided by McGrew. According to Holliday, everyone there including him, smoked marijuana.

About an hour and a half later, Holliday and fellow reveler Gary Allen had a scrape. According to Holliday:

Well, we had all been playing "quarters." That's where you bounce the quarters into the cup, drink the beer. And Gary came over and he picked up the pizza that me and the people that was sitting where I was sitting had made. And he picked it up, and the like cheese and stuff was falling off, you know, and he was drunk and he just slammed it on the table and pizza went all over everybody. And we got to pushing and shoving one another and we got to falling across the tables, and when we fell he bumped his head on something, like on the side back here, ... and it made him bleed.

And when we got up, you know, his head was bleeding so they took him outside.

Soon after Allen had been taken away, Holliday went outside to check on him. Unable to find him, Holliday went back inside and was then told that Allen had been taken to the hospital.

Holliday and a friend then began telling everyone to leave the Pizza Inn so that they could straighten up the restaurant. As they were doing this, Holliday and Perry "Bubba" Smith, whom Holliday had met just that night, began to argue about Holliday's fight with Gary Allen.

I told him to just go on and leave. Chris had told everybody to leave, you know, except for like me and Eric Brownlee and the people that worked there, you know, so we could clean everything up.

And I told him to leave and he was like--he was walking outside, you know, he was just walking normal, and he come at me and stabbed me, and I went over.

Holliday also stated that:

I never knew that he was coming at me to hurt me. You know, I thought he was just leaving. And when he got close enough to me for me to realize that he was--you know, that he was coming at me, it was too late, the knife was in me.

And when he stabbed me, I kind of like--scrunched over and he pulled it out and he went to stab me again and I caught his arm. And, you know, I just fell to my knees. And everybody--the girls in there were screaming and I was telling them, "He stabbed me. Get him off of me."

And he told one of my friends that was there, which was Eric Brownlee--you know, I remember this very well--he goes--you know, I was telling them, "Get him off of me," you know, and he told Eric, he said, "If you don't go on I'm going to finish him off."

....

You know, this guy's sitting there holding a knife and threatening that he's going to go on and finish me off, kill me. So I guess Eric went on into the kitchen or something--you know, I don't know this, I didn't see it because I was scrunched over--but I was told that Eric went in the kitchen or back in that area to find something to hit him with to get him off of me. And as Eric and left [sic] to get something he jumped up and ran out the back door and hit one of my other friends in the chest and run to his truck.

Holliday was taken to the hospital where he underwent the first of the three to five operations he would be subjected to over the following two years. When asked how he felt at his December 11, 1990, deposition, he said, "I guess I'm tender there. You know, if I'm bumped there, I tense up. So I guess that's from going through all that I've been through. You know, I'm still--I'm hesitant. You know, I don't try to do things that I did do." He also stated that:

Well, I have muscle spasms. You know, like my stomach can knot up real bad and I have to lay there until it passes. But, I mean, it's not doing it like it was there the first few years, you know, where I couldn't use the bathroom, and instead of going to the bathroom I threw up. You know, it's not doing that no more, thank God.

When asked if he thought that Crystal McGrew had authority from Pizza Inn to have this party, he answered, "Well I think that, you know--or I feel that if Pizza Inn didn't know that she was doing it, that's Pizza Inn's fault. I mean, because it had been going on for months and everybody else in town knew about it." He further stated that he did not think that there was any risk involved in going to the Pizza Inn parties because, "there the times before, you know, nothing had come of it and no--no arguments, you know, no nothing." When asked if he thought that there was anything that McGrew had or had not done which caused him to be stabbed, he replied, "Well, it would be--I think it would be unfair for me to say. I mean, like we had been--she had been having a party there, you know, a long time before that. It was just that one bad apple got in the barrel, you know."

At the time of the ill-fated party, James Lott was the Vice President and Chief Financial officer of Jackie's International. Lott admitted in an affidavit filed May 21, 1991, that Crystal McGrew was employed by Jackie's as the manager of the Senatobia Pizza Inn when Holliday was stabbed. He further stated that she did not have the authority and knew that she did not have the authority, either to allow people into the Pizza Inn after hours or to allow people to consume alcohol and use marijuana on the premises. According to Lott, McGrew was not acting for Pizza Inn when she allowed any of these party-oriented activities to take place.

On June 6, 1991, Lott was deposed by Tim Holliday's attorney, Briggs Smith. Much of this deposition is concerned with the various means used by Jackie's International to run their chain of Pizza Inns. According to Lott, the manual which guides the operations of the individual restaurants was supplied by Pizza Inn although Jackie's also gave each franchise a set of policies and procedures. He also stated that Jackie's monitored the day-to-day operations of the store through personal visits, phone calls, and by reviewing weekly figures. In regard to the weekly figures review, Lott said:

Well, they take the inventory to arrive at the food usage for the prior week and comparing [sic] that with sales to determine accurate food cost. That will tell you, one, if all sales are being reported, or if there is pilferage with your products. There may be pilferage or perhaps they are making up too much dough and they shouldn't be making that much and they're throwing a lot of it away. Those are the type things, I believe, they would arrive at through those figures.

According to Lott, for an irregularity between the food usage and the sales to be detected, there would have to be a noticeable difference in the food cost, and the most difficult problem to uncover would be an employee stealing food. Lott also stated that a member of the public would have the right to expect that Jackie's employees followed the law and that Jackie's field managers were under a duty to see that their employees did so follow the law.

After the stabbing, Lott and Director of Operations Murry Greenlee conferred and decided to request McGrew's resignation. He deposed that when he told McGrew of this decision, "I cited to Crystal that, according to Police Department Investigator Sammie Webb, that there had been illegal activity there, that that was definitely beyond the scope of her employment to allow...