Sipe v. Farmer

398 So. 2d 1325
CourtMississippi Supreme Court
DecidedJune 3, 1981
Docket52590
StatusPublished
Cited by5 cases

This text of 398 So. 2d 1325 (Sipe v. Farmer) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sipe v. Farmer, 398 So. 2d 1325 (Mich. 1981).

Opinion

398 So.2d 1325 (1981)

James H. SIPE
v.
Michael D. FARMER.

No. 52590.

Supreme Court of Mississippi.

June 3, 1981.

*1326 Michael J. Malouf, Michael K. Henry, Malouf & Malouf, Jackson, for appellant.

Allan P. Bennett, Robert H. Weaver, Watkins, Ludlam & Stennis, Jackson, for appellee.

Before SMITH, WALKER and BROOM, JJ.

WALKER, Justice for the Court:

This is a personal injury action based upon assault and battery. The defendant, James H. Sipe, appeals from a judgment of the Circuit Court of the First Judicial District of Hinds County in favor of the plaintiff, Michael D. Farmer, for $250,000. He raises seven assignments of error.

On the evening of January 25, 1978, Michael D. Farmer's unconscious body was found lying on the access ramp to the parking garage of the Holiday Inn on Amite Street in downtown Jackson. Farmer was taken to the Mississippi Baptist Hospital, where it was determined that he had suffered a fractured skull and a broken wrist. He remained an in-patient at the hospital for approximately thirty-five days. During this time he underwent multiple operations and received extensive medical care and treatment.

Farmer thereafter filed this suit against James H. Sipe, alleging that Sipe struck him on the left side of his head and on his right wrist with a heavy blunt instrument, such blows causing him to lose consciousness and fall or be knocked over a retaining wall on the northern-most end of the second floor of the Holiday Inn parking garage to the concrete surface of the garage exit ramp below. He alleged, alternatively, that he had jumped over the retaining wall following the blows in an attempt to escape further injury and save his life.

In his answer, Sipe denied the above allegations, but admitted that he struck Farmer once with his fist. After the disposition of several pre-trial motions, the cause was tried before a jury. The only seriously disputed *1327 issue was whether or not Sipe caused the injuries sustained by Farmer, as alleged in the declaration.

Sipe testified that on the evening of January 25, 1978, he found his wife's car parked in the parking lot of the Holiday Inn on Amite Street in downtown Jackson. Unable to find his wife in the lounge, he returned to the parking lot and let the air out of her right rear tire. He then went home and waited for her to call him to fix the flat tire. Her call never came. Shortly after ten o'clock p.m. Sipe returned to the Holiday Inn parking lot and parked his car in a position where he could view his wife's car. A few minutes later he observed his wife walking to her car with the appellee, Farmer. Sipe then got out of his car and approached the other two. As he approached he saw his wife sitting in the car and Farmer leaning over the open door with his head close to Sipe's wife. He stated that it appeared to him that Farmer was kissing his wife. He said, "Who in the hell are you with my wife." He then hit Farmer on the back of his neck or head with his fist and stepped back to defend himself. Farmer ran and Sipe gave chase but was interrupted when his wife backed the car out of the parking space and almost ran over him. Sipe stated that he never got within twenty to thirty feet of Farmer thereafter but, instead, got into his car and followed his wife's car out of the parking lot. Sipe denied that he had any instrument in his hand or that he was ever close to Farmer when Farmer fell or jumped over the retaining wall to the access ramp below.

Farmer's testimony was sharply conflicting with Sipe's. According to Farmer, Sipe said something in a very loud voice as he approached him from behind. Mrs. Sipe then closed her car door and took off in a hurry. Farmer testified that he ran away from Sipe to the wall on the second floor of the garage. He related what then happened as follows:

I looked over the wall and thought, `My god, I'll break a leg if I go down there,' so I turned around to try to at least calm the man down and tell him, `nothing — just a friend.' I was attempting to try that when he hit me as hard as he could with a tire tool. That's exactly what he did. And apparently I tried at that point to turn around and get away or go on over the wall but what I did, I can't tell you because I don't know. I assume I tried.

In addition to Farmer's testimony, he presented expert medical testimony about the cause of his injuries. The medical testimony was that the pattern of bone fragmentation sustained by him was consistent with a blow by a blunt instrument, such as a tire tool. On the other hand, Sipe presented expert testimony that the skull fracture was consistent with an injury one would sustain in a fall onto a smooth concrete surface.

The jury found Farmer's version of the events to be more credible and returned a verdict for Farmer in the amount of $250,000 actual damages. The jury made no award for punitive damages requested by Farmer. On this appeal Sipe does not question the amount of the damages awarded or the sufficiency of the evidence to support the jury's verdict. However, he does allege that there were several errors in the trial which prevented him from presenting his case to the jury and contends that these errors require that we reverse and remand the cause for a new trial. These errors will be separately discussed below.

I.

DID THE LOWER COURT ERR IN DISMISSING APPELLANT'S COUNTERCLAIM PRIOR TO TRIAL?

Sipe incorporated in his original answer a counterclaim, alleging alienation of affection of his wife. Farmer filed a motion to strike the counterclaim on the basis that it did not arise out of and was not connected with the subject matter of the assault and battery claim and was not within the contemplation of Mississippi Code Annotated section 11-7-69 (1972). The lower court apparently sustained this motion. *1328 (No order sustaining the motion appears in the record. However, the appellee has addressed this assignment of error on the merits.) Section 11-7-69 provides, in part, as follows:

In all suits at law where the defendant has a claim or demand against the plaintiff arising out of or connected with the situation, occasion, transaction or contract or subject matter upon which the plaintiff's action is based, ... the defendant in his answer may plead his claim or demand against the plaintiff by way of counterclaim, in recoupment, stating the facts upon which such counterclaim is based. (Emphasis added).

The counterclaim alleged that on January 25, 1978, Mr. Farmer engaged in a love affair with Mrs. Sipe and attempted to persuade her to leave Mr. Sipe. The appellant claims that the counterclaim is proper because it is closely connected with the subject matter upon which the original claim is based.

We agree that the allegations of alienation of affection in the counterclaim were so closely connected with the subject matter of the original suit, i.e., the assault and battery of Farmer by Sipe for Farmer being caught at a motel with Sipe's wife, that the lower court should have permitted the counterclaim to be tried along with the original claim. It is unimportant that Sipe did not know of the alleged love affair and talk of divorce and marriage prior to the battery.

The appellee's reliance on Irby v. Citizens National Bank, 239 Miss. 64, 121 So.2d 118 (1960) is misplaced. In Irby, the plaintiff sued on a promissory note and the defendant counterclaimed for wrongful interference with his business. However, the alleged interference took place one year prior to the execution of the note.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ormond v. State
599 So. 2d 951 (Mississippi Supreme Court, 1992)
Craft v. Craft
478 So. 2d 258 (Mississippi Supreme Court, 1985)
South Cent. Bell Telephone Co. v. Aden
474 So. 2d 584 (Mississippi Supreme Court, 1985)
Todd v. Turnbull
469 So. 2d 71 (Mississippi Supreme Court, 1985)
Jesco, Inc. v. Shannon
451 So. 2d 694 (Mississippi Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
398 So. 2d 1325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sipe-v-farmer-miss-1981.