Opinion
No. 42392.
October 8, 1962.
1. Assault and battery — civil action — plea of self-defense — jury question presented.
Jury question was presented as to whether plaintiff, who was a customer in defendant's gasoline station, was assaulted by defendant's employee, or whether such employee had acted in self-defense.
2. Assault and battery — erroneous instruction — assuming employee was of dangerous nature — assuming facts not in evidence.
Giving of instruction regarding whether employer, who was sued by customer on account of alleged assault by employee, knew of employee's nature was reversible error for assuming, without support in the evidence, that employee was a man of dangerous nature.
3. Instructions — erroneous instruction — obligation of employee to intoxicated customer not applicable to facts of case.
Giving of instruction regarding obligation toward intoxicated customer was reversible error because it was not applicable to facts of case in which customer was suing for alleged assault by defendant's employee.
4. Assault and battery — intoxication of one as not depriving another of his right of self-defense.
Mere fact that one is drinking or intoxicated does not deprive another of his right of self-defense.
5. Damages — erroneous instruction — mental suffering — complicated — confusing.
Instruction on damages for mental suffering was reversible error since it was complicated in wording and calculated to confuse jury and might lead jury to believe that plaintiff, contrary to any showing in record, was permanently injured.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, J.
Mize, Thompson Mize, Gulfport; Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellant.
I. The Court erred in giving the following instruction to the jury: "The Court instructs the jury for the plaintiff that where the directions of the principal to his agent are general as to the business which he is to perform, then the principal is held to have confided in the discretion of his agent, and he will be answerable for all the acts of the agent in the performance of the duty required." Davis v. Price, 133 Miss. 236, 97 So. 557; Miller v. Lyons, 175 Miss. 351, 167 So. 52; White v. Lee, 97 Miss. 493, 52 So. 206.
II. The Court erred in giving the following instruction for the plaintiff: "The Court instructs the jury for the plaintiff that if you find that R.L. "Pumpkin" McArthur did know of John Ramsey's nature and failed to use ordinary care, after having such knowledge of John Ramsey's dangerous nature with a pistol in his possession if such is found by you to be the case, to take such proper steps to prevent John Ramsey from having possession and use of said pistol, then if you find such want of ordinary care on the part of R.L. "Pumpkin" McArthur was the proximate cause of plaintiff's injury, if any, it is your sworn duty to find for the plaintiff and against defendant R.L. "Pumpkin" McArthur." Dixie Stockyard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Priestley v. Hays, 147 Miss. 843, 112 So. 788.
III. The Court below erred in giving the following instruction for the plaintiff: "The Court instructs the jury for the plaintiff that when a person known to be affected by a physical or mental disability is allowed to come on the premises of the defendant's business or where the agents of the defendant should know that he is so affected and then rather than complaining of such disability accepts such person as a customer then the defendant and its agents must exercise a greater degree of care of the safety of such person than is ordinarily required. Consequently if from the preponderance of the evidence you find in this case that James Dillard Pruitt, plaintiff, was intoxicated and that his physical and mental capacities were so impaired that he was incapable of protecting himself and looking after his affairs and that the agents of the defendant knew this or should have known this, then if you find that plaintiff was permitted to remain on said premises and was treated as a customer, the degree of care under the law by the agents of the defendant should have been that of the utmost care." Melton v. State, 155 Miss. 659, 124 So. 802; Stokes v. State, 240 Miss. 453, 128 So.2d 341; Wixon v. State, 229 Miss. 430, 90 So.2d 859.
IV. The Court below erred in giving the following instruction for the plaintiff: "The Court instructs the jury for the plaintiff that if you believe from the preponderance of the evidence that an unwarranted assault and battery with a deadly weapon, to-wit, a 22-caliber pistol was ____ upon the plaintiff by John Ramsey and if you further believe that John Ramsey was the agent of R.L. "Pumpkin" McArthur and that the assault and battery, if any, was done through gross negligence of willful, wanton and reckless disregard as to the consequences to the plaintiff, then, in addition to any actual damages to the plaintiff, if any, you may award, you may also award the plaintiff such punitive damages by way of punishment as you may find proper from the evidence and sufficient to prevent recurrence of any such wrong, if such wrong were done, by the defendant." Lopez v. Jackson, 80 Miss. 689, 32 So. 117; Wilburn v. State, 73 Miss. 245, 18 So. 576.
V. The Court below erred in giving instruction No. 5 for the plaintiff, which instruction is as follows: "The Court instructs the jury for the plaintiff that to make an assault with a deadly weapon justifiable on the ground of self-defense, the danger to the person seeking to justify the act must be either actual, present and urgent, or such person must have reasonable grounds to apprehend a design on the part of the assaulted party to kill him or to do him greatly bodily harm; and in addition to this, that there was imminent danger of such design being accomplished, and hence fear, apprehension, or belief, however sincerely entertained by one person that another designs to take his life, or to do him great bodily harm, will not justify the former in so assaulting the latter party, if such took place. A party may have a lively apprehension that his life is in danger and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril, he is not the final judge. The jury may determine the reasonableness of the grounds upon which he acted." Cumberland v. State, 110 Miss. 521, 70 So. 695; Hartfield v. State, 176 Miss. 776, 170 So. 531; Leverett v. State, 112 Miss. 394, 73 So. 273; Stubblefield v. State, 142 Miss. 787, 107 So. 663.
VI. The Court below erred in granting instruction No. 6 to the plaintiff, which instruction is as follows: "The Court instructs the jury for the plaintiff that the law allows one injured through the negligence of another, compensation in money, not only for his physical pain and suffering, but also for mental pain and suffering. By this is meant a recovery for something in addition to the form of mental suffering ordinarily described as `physical pain'.
Mental suffering may arise out of the physical injury and depends upon the extent, character, and probable duration of the injury. It includes all the numerous forms that mental suffering will take which will vary in each case with the temperament of the individual, his ability to stand shock, the nature and character of his injuries, whether permanent or temporary, disfiguring or humiliating, and the mental worry, distress, or grief, or mortification which he may sustain thereby.
If one be handicapped by physical injuries from performing the tasks incident to his or her station in life, or if the character of the injuries be such as to cause one mental anxiety, or dread of physical suffering reasonably certain to continue in the future, you may consider such elements in assessing damages for mental suffering.
In estimating such mental suffering, if any such exists, you may also consider whether or not mental suffering might be sustained by the plaintiff herein from the deprivation of the pleasure and satisfaction in life that only those can enjoy who are possessed of a sound body.
These are all proper component elements for that mental suffering for which the law entitles one injured by the negligence of another to seek redress in monetary damages." Newman Lumber Co. v. Norris, 130 Miss. 751, 94 So. 881; Pullman Co. v. Kelly, 86 Miss. 87, 38 So. 317.
VII. The Court below erred in giving the following instruction for the plaintiff: "The Court instructs the jury for the plaintiff, James Dillard Pruitt, that in the event you find for the plaintiff, your verdict may be in the following form: `We, the jury, find for the plaintiff and assess his damages at $ ____', writing your verdict upon a separate piece of paper and filling in the amount sued for." Bounds v. Watts, 159 Miss. 307, 131 So. 804.
VIII. The Court below erred in refusing the following instruction for the defendant McArthur: "The Court instructs the jury to find for the defendant McArthur."
IX. The Court erred in entering judgment for the plaintiff on the verdict of the jury, which verdict is as follows: "We, the jury, find for the plaintiff, and assess his damages at $3,000 total $2,500 of which shall be punitive."
X. The Court erred in allowing punitive damages.
XI. The Court erred in overruling the motion of the appellant, one of the defendants, below for a new trial.
Collation of Authorities: Bounds v. Watts, supra; Holliman v. Lucas, 202 Miss. 463, 32 So.2d 259; Nowell v. Henry, 194 Miss. 310, 12 So.2d 540; Taggart v. Peterson, 182 Miss. 82, 181 So. 137.
Thomas D. Berry, Jr., Gulfport, for appellee.
I. The Court did not err in giving instruction No. 1 for the plaintiff. Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823; Gill v. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165; McGouirk v. Western Union Tel. Co., 79 Miss. 632, 31 So. 206; Richberger v. American Express Co., 73 Miss. 157, 18 So. 922; Sears, Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250; Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766; Singer Sewing Machine Co. v. Stockston, 171 Miss. 209, 157 So. 366; A.L.I., Restatement of the Law (Agency), Secs. 228, 229, 230; Prosser, Torts, (2d ed.) 354; Meacham, Outline of Agency, (4th ed.) 266.
II. The Court did not err in giving instruction No. 2 for the plaintiff. Country Club of Jackson v. Turner, 192 Miss. 510, 4 So.2d 718; Dixie Stockyard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Great Southern Lumber Co. v. May, 136 Miss. 27, 103 So. 363; Hines v. Green, 125 Miss. 476, 87 So. 649; Jones v. Alden Mills, 150 Miss. 70, 116 So. 438; Priestley v. Hays, 147 Miss. 843, 112 So. 788.
III. The trial court did not abuse its discretion in giving instruction No. 3 for plaintiff. Brown v. Stevens (Mich.), 99 N.W. 12; Calloway v. Hart, 146 F.2d 103; Coakley v. Ajuria (Cal.), 290 P. 33; Dokus v. Palmer, 130 Conn. 247, 33 A.2d 315; McMahon v. New York, N.H. H.R. Co., 136 Conn. 372, 71 A.2d 557; Robinson v. Proche, 5 Cal. 460; Simmer v. City County of San Francisco (Cal.), 254 P.2d 185; Stecknan v. Silver Moon (S.D.), 90 N.W.2d 170; Williamson v. The Carolina, 158 F. Supp. 417; Prosser, Torts, (2d ed.) 147, 148.
IV. The Court did not err in giving instruction No. 4 for the plaintiff. Anderson v. Jenkins, 220 Miss. 145, 70 So.2d 535; Lopez v. Jackson, 80 Miss. 689, 32 So. 117; Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 756.
V. The Court did not err in giving instruction No. 5 for the plaintiff. Hartfield v. State (Miss.), 170 So. 531; Ransom v. State, 149 Miss. 262, 115 So. 208.
VI. The Court did not err in granting instruction No. 6 for the plaintiff. Arnold v. Spears, 217 Miss. 209, 63 So.2d 850; Copeland v. Robertson, 236 Miss. 95, 112 So.2d 236; Mississippi Power Co. v. Byrd, 160 Miss. 71, 133 So. 193; Pullman Co. v. Kelly, 86 Miss. 87, 38 So. 317.
VII. The lower court did not err in giving instruction No. 7 for plaintiff. Johns-Manville Products Corp. v. McClure, 209 Miss. 240, 46 So.2d 539; 2 Alexander, Mississippi Jury Instructions, Sec. 4732.
VIII. The trial court did not err in refusing to grant appellant's peremptory instruction.
IX. As to the remaining assignments of error. Bounds v. Watts, 159 Miss. 307, 131 So. 804; Brown v. Addington, 233 Miss. 435, 102 So.2d 365; Holliman v. Lucas, 202 Miss. 463, 32 So.2d 259; Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165; Livesey v. Stock, 208 Cal. 315, 281 P. 70; Nowell v. Henry, 194 Miss. 310, 12 So.2d 540; Taggart v. Peterson, 182 Miss. 82, 181 So. 137.
McArthur appeals from a judgment of the Circuit Court of Harrison County awarding Pruitt damages because of an alleged assault and battery committed on him by an employee of McArthur.
It is not necessary to go into all of the facts, but for an understanding of our decision, the following statement should be sufficient:
McArthur was the operator of a filling station in the City of Gulfport. One Ramsey was an employee and was in charge of the station at night. Pruitt had been drinking considerably during the day of March 5, 1961. He (Pruitt) stopped at the station around 8:30 P.M. of that day and ordered some gasoline. A dispute arose between Pruitt and Ramsey as to how much gasoline he had ordered; Pruitt contending that he ordered one dollar's worth because that was all the money he had, and Ramsey insisting that he had given directions to "fill her up." The end result was that Ramsey struck Pruitt on the side of the head with a 22-calibre pistol. The pistol went off when Ramsey pulled it from his pocket and also shot when he struck Pruitt with it. There is no evidence, however, as we see it, that Ramsey was trying to shoot Pruitt. In fact, the first shot went into Ramsey's leg.
Ramsey's plea was self-defense, he claiming that Pruitt was mad, drinking, and that he ran his hand in his pocket leading Ramsey to believe that he (Ramsey) was in danger.
(Hn 1) The evidence was sufficient to make an issue of fact for the jury. However, the instructions for the plaintiff were in error and require a reversal.
(Hn 2) Instruction No. 2 given for plaintiff reads as follows:
"The Court instructs the jury for the plaintiff that if you find that R.L. "Pumpkin" McArthur did know of John Ramsey's nature and failed to use ordinary care, after having such knowledge of John Ramsey's dangerous nature with a pistol in his possession if such is found by you to be the case, to take such proper steps to prevent John Ramsey from having possession and use of said pistol, then if you find such want of ordinary care on the part of R.L. "Pumpkin" McArthur was the proximate cause of plaintiff's injury, if any, it is your sworn duty to find for the plaintiff and against defendant, R.L. "Pumpkin" McArthur."
This instruction is erroneous for at least two reasons: First, it assumed that Ramsey was a man of a dangerous nature, and, second, there is no evidence in the record that Ramsey was of such nature.
(Hn 3) Instruction No. 3 reads: "The court instructs the jury for the plaintiff that when a person known to be affected by a physical or mental disability is allowed to come on the premises of the defendants' business or where the agents of the defendant should know that he is so affected and then rather than complaining of such disability accepts such person as a customer then the defendant and its agents must exercise a greater degree of care of the safety of such a person than is ordinarily required. Consequently if from the preponderance of the evidence you find in this case that James Dillard Pruitt, plaintiff, was intoxicated and that his physical and mental capacities were so impaired that he was incapable of protecting himself and looking after his affairs and that the agents of the defendant knew this or should have known this, then if you find that plaintiff was permitted to remain on said premises and was treated as a customer, the degree of care under the law by the agents of the defendant should have been that of the utmost care."
(Hn 4) This instruction was not applicable to the facts in this case. The last phrase of it requiring defendant's agents to exercise the "utmost care" with regard to an intoxicated person is misleading here. The mere fact that one is drinking or intoxicated does not deprive another of his right of self-defense.
(Hn 5) Instruction No. 6 reads: "The Court instructs the jury for the plaintiff that the law allows one injured through the negligence of another, compensation in money, not only for his physical pain and suffering, but also for mental pain and suffering. By this is meant a recovery for something in addition to the form of mental suffering ordinarily described as `physical pain.'
"Mental suffering may arise out of the physical injury and depends upon the extent, character, and probable duration of the injury. It includes all the numerous forms that mental suffering will take which will vary in each case with the temperament of the individual, his ability to stand shock, the nature and character of his injuries, whether permanent or temporary, disfiguring or humiliating, and the mental worry, distress, or grief, or mortification which he may sustain thereby.
"If one be handicapped by physical injuries from performing the tasks incident to his or her station in life, or if the character of the injuries be such as to cause one mental anxiety, or dread of physical suffering reasonable certain to continue in the future, you may consider such elements in assessing damages for mental suffering.
"In estimating such mental suffering, if any such exists, you may also consider whether or not mental suffering might be sustained by the plaintiff herein from the deprivation of the pleasure and satisfaction in life that only those can enjoy who are possessed of a sound body.
"These are all proper component elements for that mental suffering for which the law entitles one injured by the negligence of another to seek redress in monetary damages."
This instruction is complicated in its wording, is hard to understand, and is calculated to confuse the jury. Furthermore, it apparently assumes, and might lead the jury to believe, that Pruitt had been permanently injured. We are unable to find in the record any evidence that he was permanently injured.
For these reasons, this cause is reversed and remanded for a new trial.
Reversed and remanded.
McGehee, C.J., and Kyle, Gillespie and McElroy, JJ., concur.