John W. Whitten, III v. Randy Cox

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CA-01410-SCT

JOHN W. WHITTEN, III
v.
RANDY COX, TOD LOGAN

AND PHILIP SPINOSA

DATE OF JUDGMENT: 04/28/1998
TRIAL JUDGE: HON. GEORGE C. CARLSON, JR.
COURT FROM WHICH TALLAHATCHIE COUNTY
APPEALED:
CIRCUIT COURT
ATTORNEYS FOR WILLIAM LISTON
APPELLANT:
JOHN W. WHITTEN, JR.
WILLIAM JOSEPH REID
ATTORNEY FOR APPELLEES: RONALD W. LEWIS
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART
- 7/27/2000
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:

BEFORE BANKS, P.J., WALLER AND DIAZ, JJ.

WALLER, JUSTICE, FOR THE COURT:

¶1. This case comes on appeal from the Circuit Court of the Second Judicial District of Tallahatchie
County, Mississippi. Plaintiffs Randy Cox, Tod Logan and Philip Spinosa filed a civil action for damages
against John W. Whitten, III, for assault, battery, and false imprisonment. Whitten filed a counterclaim for
trespass and several other torts. He voluntarily dismissed all of the tort claims with the exception of the
trespass counterclaim, which was presented to the jury. The jury returned a verdict for all three plaintiffs on
the assault, battery, and false imprisonment claims and awarded compensatory damages as follows: Cox,
$50,000; Logan, $30,000; and Spinoza, $30,000. Though the issue of punitive damages was also
submitted to the jury, the three plaintiffs were each awarded $0.00 punitive damages. The jury found in
favor of Whitten on his counterclaim for trespass, but declined to award him any damages, awarding $0.00
on this claim. The circuit court entered judgment accordingly and denied Whitten's post-trial motion for a
J.N.O.V. or a new trial. Whitten appeals to this Court raising the following issues:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING
TO GRANT WHITTEN'S MOTION FOR A DIRECTED VERDICT AND MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE THE PLAINTIFFS'
PROOF WAS INSUFFICIENT TO ESTABLISH THAT THEY SUFFERED MENTAL
ANGUISH AND EMOTIONAL DISTRESS, WHICH WERE ESSENTIAL ELEMENTS
OF THEIR CLAIMS OF ASSAULT AND BATTERY AND FALSE IMPRISONMENT.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
ALLOWING THE ADMISSION OF EVIDENCE OF WHITTEN'S ALLEGED
STATEMENT CONTAINING THE WORD "NIGGER," AND DENYING WHITTEN'S
MOTION FOR A NEW TRIAL.

III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING WHITTEN'S MOTION FOR REMITTITUR.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING CERTAIN JURY
INSTRUCTIONS.

V. SHOULD THE TRIAL COURT HAVE ENTERED AN ADDITUR OR ORDERED A
NEW TRIAL BASED ON THE JURY'S AWARD OF $0.00 FOR WHITTEN'S TRESPASS
CLAIM?

STATEMENT OF THE FACTS

¶2. On Sunday afternoon, March 19, 1995, Cox, Spinosa and Logan drove a pickup truck onto a tract of
land which was being farmed and leased by Cox's brother. Cox claims he was inspecting the condition of
the land at his brother's request to see whether it was ready to be worked. They attempted to access this
land through a dirt road which crossed Whitten's land and then alongside an airstrip on property adjacent to
Whitten's land. Whitten did not own the land that the airstrip was on, but he had built the airstrip with the
permission of the owner of that land and was permitted to use it as such. Whitten also owned a camp and a
firing range on his own land adjacent to the airstrip. The plaintiffs drove past the Whitten camp and drove
the pickup down the center of the grass runway toward the field that Cox was going to inspect. Whitten
saw the truck driving down the runway and ran after the truck, shouting for it to stop. When the truck did
not stop Whitten drew his side arm, a .45 caliber semi-automatic pistol, and fired several shots. Whitten
claims that he fired the shots into the air and at an angle away from the pickup in order to get the attention
of the driver. Cox claims Whitten was shooting at the truck and that he heard a bullet pass by the open
window. The truck then turned and came back towards the Whitten camp, this time along the side of the
runway. Whitten placed himself in front of the truck and ordered the driver to stop the truck.

¶3. At this point, the facts become starkly disputed. Whitten claims that the driver of the truck refused to
stop, forcing him to jump to one side, and hitting him with the side view mirror. The plaintiffs claim that the
truck was slowing down, at idle speed, and that the driver was pumping the brakes, attempting to stop. The
plaintiffs' recollection was that Whitten slipped in the mud and then grabbed onto the side mirror to support
himself. It is undisputed that at this time Whitten shot out one of the back tires on the pickup. Whitten then
ordered the plaintiffs out of the truck.

¶4. Again the facts are disputed. The plaintiffs claim that Whitten pointed the cocked pistol directly at them,
waving it in their faces, shouting, cursing, and ordering them out of the truck and onto the ground. Cox
claims that Whitten pressed the barrel of the gun to Cox's temple and told Cox he ought to kill him or "kick
his fucking face in" for being on the runway. Whitten denies pointing the gun at anyone, though it is
undisputed that he was armed, that his friends standing around were armed with loaded assault rifles and
that Whitten ordered the plaintiffs to kneel on the ground. Once they were out of the truck, Whitten
informed all three that they were under arrest for trespass. One of Whitten's sons who was present brought
some handcuffs from a nearby vehicle. It is undisputed that Whitten ordered one of the other men to
handcuff Cox prior to taking him to a building at his camp. Cox claims that Whitten asked the other two
plaintiffs whether they thought Cox could swim in the nearby Buzzard Bayou with those handcuffs on. Cox
also claims that when he rose to his knees, Whitten pulled the bill of his cap down over his eyes and
knocked his sunglasses off. Once the three plaintiffs were escorted back to Whitten's camp, Whitten
unsuccessfully tried to telephone the Sheriff. Whitten then recognized Cox as the brother of the person who
leased some farmland on the neighboring property where the airstrip was located. At this point Cox recalled
that Whitten began to calm down and discuss how to resolve the situation. Cox claims that Whitten said, "I
could go ahead and pursue a legal matter for this, even put it in front of that nigger judge right there in
Sumner; . . . but that nothing would happen to him [Whitten]; . . . but . . . be damned sure [nothing] would
come of it; . . . [Cox] would not get anything; . . . or [nothing] good would come of it." Whitten denies ever
mentioning the word "nigger." He claims that it was Cox, not he, who referred to the judge that way.(1)

DISCUSSION

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING
TO GRANT WHITTEN'S MOTION FOR A DIRECTED VERDICT AND MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE THE PLAINTIFFS'
PROOF WAS INSUFFICIENT TO ESTABLISH THAT THEY SUFFERED MENTAL
ANGUISH AND EMOTIONAL DISTRESS WHICH WERE ESSENTIAL ELEMENTS
OF THEIR CLAIMS OF ASSAULT AND BATTERY AND FALSE IMPRISONMENT.

¶5. Our standard of reviewing a denial of a motion for judgment notwithstanding the verdict and a
peremptory instruction are the same. The standards of review for a denial of a judgment notwithstanding the
verdict and a directed verdict are also identical. Under this standard, this Court will consider the evidence in
the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be
reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the
appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and
render. On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such
quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have
reached different conclusions, affirmance is required. These standards of review, however, are predicated
on the fact that the trial judge applied the correct law. This Court will reverse a trial judge's denial of a
request for new trial only when such denial amounts to an abuse of that judge's discretion. Sentinel Indus.
Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So. 2d 954, 960-61 (Miss. 1999) (citations
omitted).
¶6. Whitten argues that the plaintiffs "failed miserably" to provide any evidence of damages or injury in
relation to their claims for assault, battery and false imprisonment, and as such he should have received a
directed verdict. Assault, battery, and false imprisonment are intentional torts. Miss. Code Ann. § 15-1-35
(1995); City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1220 (Miss. 1990).

Assault and Battery Claims

¶7. An assault occurs where a person "(1) acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such a contact, and (2) the other is
thereby put in such imminent apprehension." Webb v. Jackson, 583 So.2d 946, 950-51 (Miss. 1991)
(citing Restatement (Second) of Torts § 63 (1965)). A battery goes one step beyond an assault in that a
harmful contact actually occurs. A defense to the charge of an assault or battery is that the person was
acting in self-defense. In such a situation, he may use reasonable force, not intended or likely to cause death
or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily
harm which he reasonably believes that another is about to inflict intentionally upon him. Id.

¶8. Whitten does not argue that he was acting in self-defense. Instead, he argues that he was conducting a
valid citizen's arrest. The initial issue to be discussed must therefore be whether a valid citizen's arrest was
made by Whitten, and whether the arrest was made in accordance with the law. This issue also has a
bearing on the merit of the plaintiffs' false imprisonment claims.

¶9. In Mississippi, a private citizen may arrest any person without a warrant for a misdemeanor offense
which has been committed, or for a breach of the peace attempted or threatened in his presence. Miss.
Code Ann. § 99-3-7 (Supp. 1999). The arrest must be made in accordance with the law, but there will be
no liability for a legal arrest, notwithstanding it may appear that the party arrested was innocent of any
offense. Miss. Code Ann. § 99-3-23 (1994).

¶10. The plaintiffs were suspected of misdemeanor trespass. They were unarmed. Whitten fired several
shots from his .45 caliber pistol, and shot out a tire on the truck that they were driving. He forced them out
of the truck and demanded them to get on their knees on the ground. He and several other armed men then
took the plaintiffs to a building, having handcuffed and threatened one of them. One of the armed men
accompanying Whitten, a Mr. Valley, is now a police officer. Salley testified that Whitten used profanity,
was screaming, and that he was shocked by Whitten's behavior. Valley also testified that the plaintiffs did
not attempt to run over Whitten with their truck, that they showed no signs of aggression and that the only
person being aggressive was Whitten. Whitten admitted in hindsight that he overreacted.

¶11. If the force used in the arrest and detention of a suspected misdemeanant is unreasonable and
excessive, this may render the detention and arrest invalid. Whether the manner of arrest renders an arrest
illegal is a jury question. State ex rel. Smith v. Broom, 58 So. 2d 32, 33 (Miss. 1952). This Court has
held that the use of firearms by a police officer is not justified except to protect himself from reasonably
apparent bodily harm or death at the hands of the suspect. Holland v. Martin, 214 Miss. 1, 58 So. 2d 62
(1952). Citizens are held to the same standard. The occupants of the truck did not at any time threaten
Whitten or show any signs of doing so. None of them were armed. Whitten placed himself in front of the
truck; no one tried to run over him. Whitten fired his weapon several times. It is undisputed that he shot out
one of the tires while the plaintiffs were still in the truck. Whitten testified that at the time he shot out the tire
there was no threat whatsoever being posed to him. A reasonable juror could certainly have found that
Whitten's use of force was unreasonable and excessive under the circumstances. An error in marksmanship
could have killed or wounded one of the occupants of the truck or one of the bystanders. Whitten was not
in fear of life or limb. The force Whitten used in the arrest and detention of the plaintiffs was unreasonable
and excessive, rendering the arrest and detention invalid. There is testimony and evidence in the record
from which a reasonable jury could have found that the elements of assault and battery were met. Assault
requires (1) acts intending to cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (2) the other is thereby put in such imminent
apprehension. Shooting out the tire of the truck which was still occupied by the plaintiffs was certainly a
harmful or offensive contact, as was removing the occupants and forcing them to the ground. Whitten also
handcuffed Cox, pulled his baseball cap over his eyes and knocking off his sunglasses. Thus, the additional
"harmful contact" requirement to establish battery was met. Viewing this evidence in the light most favorable
to the plaintiffs and giving them the benefit of every reasonable inference which may reasonably be drawn
from the evidence, there is substantial evidence in the record which supports the jury's findings of assault
and battery.

False imprisonment claims

¶12. False imprisonment is an intentional tort comprised of two elements: (1) detention of the plaintiff; and
(2) that such a detention was unlawful. Wallace v. Thornton, 672 So. 2d 724, 727 (Miss. 1996). The
second element turns on whether, looking at the totality of the circumstances, the actions of the defendant
were "objectively reasonable in their nature, purpose, extent and duration." Thornhill v. Wilson, 504 So.
2d 1205, 1208 (Miss. 1987). The question to be answered by the jury and the trial court was whether
Whitten's actions in attempting to arrest the plaintiffs were objectively reasonable in nature, purpose, extent
and duration when viewed in the totality of the circumstances. It is the reasonableness of Whitten's actions,
not his intent that matters. See Wallace, 672 So. 2d at 727. The initial arrest for misdemeanor trespass was
unlawful due to the use of unreasonable and excessive force. However, even if the arrest were legal, a
reasonable jury could have concluded that the use of potentially deadly force, the alleged death threats and
threats of bodily harm, physical abuse and profanity, directed at the plaintiffs during their detention over an
extended period of time, were not objectively reasonable for the misdemeanor trespass offense. Thus, the
evidence was legally sufficient on the false imprisonment claims.

Damages Award

¶13. Having considered the validity of the claims for assault, battery and false imprisonment, the next issue
to be addressed is whether the jury erred in its award of compensatory damages based on these claims and
for damages for mental anguish and emotional distress relating to these intentional tort claims. We have
stated:

In general, damages for mental anguish or suffering are recoverable when they are the natural or
proximate result of an act committed maliciously, intentionally, or with such gross carelessness or
recklessness as to show an utter indifference to the consequences when they must have been in the
actor's mind. In most jurisdictions in fact, damages are recoverable for mental anguish and suffering
caused by a willful, wanton, malicious, or intentional wrong, even though no bodily injury is
sustained or other pecuniary damage alleged or proved.

Lyons v. Zale Jewelry Co., 246 Miss. 139, 149, 150 So. 2d 154, 158 (1963) (emphasis added).

¶14. Whitten acknowledges that in cases asserting intentional torts, mental anguish and emotional distress
damages are recoverable without proof of either physical impact or outrageous conduct and that the
plaintiffs had no legal requirement to prove either. However, Whitten argues that the plaintiffs failed to prove
any such injuries, thereby defeating their prima facie case and entitling him to a directed verdict at trial and a
j.n.o.v. on all claims asserted by the plaintiffs. Whitten is incorrect in his contention that the plaintiffs must
prove damages to establish a prima facie case.

¶15. We have observed that the difference between that process and a claim involving a wilful tort is that, in
the case of a recognized wilful tort, an actual injury is not essential to establish a case of liability. Bumgart
v. Bailey, 247 Miss. 604, 607-08, 156 So. 2d 823, 824-25 (1963). Because wilful torts involve a
conscious act by the defendant undertaken in disregard of the plaintiff's rights, the law contemplates that a
plaintiff is entitled to formal redress for the wrong committed against him even if he cannot demonstrate by a
preponderance of the evidence that he suffered an actual injury as a result. Id.; see also Harbin v.
Jennings, 734 So. 2d 269, 273 (Miss. Ct. App.1999).

¶16. However, the Harbin Court of Appeals went on to hold that the plaintiffs still bear the burden of
demonstrating the need for compensatory damages beyond nominal damages, because a plaintiff who has
been intentionally wronged without demonstrable injury is to be awarded only nominal damages. Id. at 273.
In Harbin a high school student sued a photographer and a picture frame company, alleging invasion of
privacy based on use of a photograph without permission. The Court of Appeals noted that Harbin did not
claim any actual damage except for emotional distress, did not claim that her distress manifested itself in any
outward way beyond causing periods of sleeplessness, periods of irritability, and an inability to maintain a
standard body weight. She presented no medical or psychological expert testimony to establish any
diagnosis of a significant emotional disturbance or disorder. Id. at 274. The Court of Appeals noted that to
be compensable, something beyond the kinds of discomforts Harbin related must be shown.

¶17. Whitten claims that this case involves precisely the same issues, because there is a lack of expert or
medical testimony and because the damages sustained by the plaintiffs amounted to similar "discomforts"
rather than demonstrable injuries. Whitten also cites Lyons for the proposition that there must be "definite
and objective proof" of the emotional distress damages, as well as Morrison v. Means, a case involving
negligent infliction of emotional distress, where this Court stated that evidence consisting solely of a claim of
sleeplessness and mental anguish did not demonstrate an actual injury with sufficient certainty to warrant
compensation. Morrison v. Means, 680 So. 2d 803, 806-07 (Miss. 1996). The key difference between
these cases and the present case is the nature of the incident from which the damages flow. Receiving death
threats from an armed man who shot at their vehicle, handcuffed them, and had taken them prisoner
amounted to more than a mere "discomfort."

¶18. The plaintiffs point out that in Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999),(2)
this Court recently emphasized that the "seminal case" governing claims for emotional distress not
accompanied by physical injury is Sears, Roebuck & Co. v. Devers, 405 So. 2d 898 (Miss. 1981),
reiterating the rule that a party may not recover damages for mental anguish "unaccompanied by physical or
bodily harm" without evidence of "willful, wanton, malicious or intentional wrong." Adams, 744 So. 2d at
742. In Devers, this Court stated:

Where there is something about the defendant's conduct which evokes outrage or revulsion, done
intentionally-or even unintentionally yet the results being reasonably foreseeable-Courts can in certain
circumstances comfortably assess damages for mental and emotional stress, even though there has
 been no physical injury. In such instances, it is the nature of the act itself-as opposed to the
seriousness of the consequences-which gives impetus to legal redress....

405 So. 2d at 902.

¶19. In Adams, this Court further emphasized that damages may more comfortably be assessed where the
conduct is intentional:

It is undisputed that under Mississippi law, a plaintiff asserting a claim for mental anguish, whether as a
result of simple negligence or an intentional tort, must always prove that the emotional distress was a
reasonably foreseeable result of the defendant's conduct. In cases of intentional infliction of emotional
distress, where the defendant's conduct was "malicious, intentional or outrageous," the plaintiff need
present no further proof of physical injury.

Id., 744 So. 2d at 743.

¶20. The plaintiffs argue that they presented sufficient proof of the lingering emotional effects of the incident,
as well as the fear and humiliation inflicted at the scene, to justify the jury's verdicts. We consider each of
the plaintiffs' damage claims in turn.

Plaintiff Randy Cox

¶21. Cox was the driver of the pickup, who was traveling to inspect the land leased by his brother, Lester
Cox. Cox testified that Whitten fired a gun several times at his truck. He testified that he heard a bullet pass
by the open window of the truck. Cox also testified that Whitten threatened to throw him handcuffed into
Buzzard Bayou to see if he could swim, threatened to harm him physically, actually shot a tire out on his
truck, held a gun to his head, pulled his cap down over his face, made him lie face down on the ground, and
said that he ought to kill him. Cox then testified how he was led by armed men with semi-automatic
weapons to a building where he was detained for an extended period of time during which he did not feel
free to leave. As already noted, many of these contentions were disputed by Whitten, but they were before
the jury and the jury judged their veracity, apparently crediting Cox's account. Cox described how the
incident that Sunday afternoon placed him in an immediate state of shock. Cox also testified that the incident
had changed him, he said he felt demeaned as a result of the incident, had suffered marital problems, and
that these changes in him had played a big part in his divorce from his wife. His brother, Lester Cox,
testified that since the incident, this emotional distress caused Randy Cox to lose around thirty pounds.

Plaintiff Tod Logan

¶22. Tod Logan's testimony corroborates that of Cox in regard to the incidents that unfolded on the Sunday
afternoon in question. Logan described hearing the gun shots and seeing several armed men approaching the
truck, he described his reaction as one of "shock." He described Whitten as "screaming and cursing," and
he corroborated Cox's testimony that Whitten had a beer in one hand and a pistol in the other. Logan
testified that the other men with Whitten were carrying assault rifles and that Whitten ordered one of the
men to shoot the truck, though he did not recall any of them actually shooting the truck. Logan testified that
Whitten had the hammer back on his pistol, that he called them "sorry sons of bitches" and ordered them on
the ground. Logan testified that Whitten pointed the cocked gun directly at him and that he felt very
threatened. Logan claims that he heard Whitten threaten Cox once he was on the ground handcuffed, saying
"I'll kick your fucking face in." He also claims that Whitten turned to him and Spinosa and said of Cox, "We
ought to see if he can swim with them (handcuffs) on." Logan also testified that Whitten pulled Cox's cap
down over his face and described Cox saying to Whitten, "to either shoot him or let's go call the law."
Logan testified that all at the camp except for the three detainees were armed, and that they were detained
over an hour or two and were not free to leave.

¶23. Logan testified that he felt for sure that Whitten might have shot Randy Cox and that the incident has
stuck in his mind. He testified that since the incident he has been afraid to leave his wife and children alone
and that he suffered from nervousness and worry. He claims that as a result he is unable to concentrate at
work and has become short tempered with his wife and children. Logan's wife also testified that Logan had
acted differently since the incident, that he did not like to leave his family alone and trusted people less than
he did before. She also testified that he was nervous and found it difficult to sleep and that his work had
suffered. Logan's father testified that Logan's work had been affected, he stayed nervous and upset all the
time, and was not the same since the incident.

Plaintiff Phillip Spinosa

¶24. Spinosa generally confirmed the description of the incident given by Cox and Logan. He also testified
that Whitten's pistol was cocked with the hammer back and that the barrel was about 12 inches from his
head. He stated that he could tell the pistol was a .45 because he could see the diameter of the barrel. He
also stated that Whitten said, "Get out of the truck or I'll blow your goddamn head off." He testified that
Whitten was angry, called them "stupid sons of bitches," and threatened to shoot Cox for what he did.
Spinosa testified, "I thought I was fixin to die." Spinosa said Whitten kept them down on the ground, cursing
and insulting them, during which he threatened to throw Cox into the bayou with the handcuffs still on him.
Spinosa recalled Cox saying, "Johnny, you can either shoot me or we can get on the phone to the sheriff or
something; whatever we need to do we need to get it done." Regarding the alleged racial slur and reference
to the futility of seeking relief in the local justice court, Spinosa interpreted the statement as meaning, "Telling
us, as far as the way I saw it, you know, from knowing the man and the power he had, saying that we could
try to do what we wanted to; as far as if we didn't come to a decision with him nothing would be done
about it." Spinosa testified, "I felt devastated, like, you know, that this man has every right to do what he
just did to us and I felt like I was just an old dog that somebody kicks around." Spinosa testified that after
the incident he would be put in fear every time he saw Whitten and that he was troubled enough to move his
family away from Sumner.

¶25. In light of the evidence presented, we must now consider whether the jury acted unreasonably in
awarding actual money damages to Cox, Logan and Spinosa, and whether those damages were contrary to
law. Where an intentional tort has been committed "it is the nature of the act itself -- as opposed to the
seriousness of the consequences -- which gives impetus to legal redress . . . ." Devers, 405 So. 2d at 902.
Damages are recoverable for mental anguish and suffering caused by a willful, wanton, malicious, or
intentional wrong, even though no bodily injury is sustained or other pecuniary damage alleged or proved.
Lyons, 246 Miss. at 149, 150 So. 2d at 158. Whitten's actions on the day of the incident were an
intentional wrong. The nature of his actions certainly merit legal redress, and the facts justify damages
beyond nominal damages. Even without taking into account the plaintiffs' claims regarding the lingering
effects the incident had on their lives, their fear for their lives and humiliation suffered on the day of the
incident in question would alone seem enough for a reasonable jury to award compensatory damages. The
larger verdict for Cox, $50,000, as opposed to the $30,000 awarded to both Spinosa and Logan,
respectively, can be explained by the fact that he was handcuffed, endured a second battery when his cap
was shoved down over his face, and because of the threat to throw him into a bayou while handcuffed. If
the jury was convinced by the testimony of Cox, Logan and Spinosa, there was more than enough evidence
to support their emotional distress claims and to award substantial compensatory damages, regardless of
whether expert testimony was offered. The trial court did not err in denying Whitten's motion for a directed
verdict and motion for j.n.o.v. on this issue.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
ALLOWING THE ADMISSION OF EVIDENCE OF WHITTEN'S ALLEGED
STATEMENT CONTAINING THE WORD "NIGGER," AND DENYING WHITTEN'S
MOTION FOR A NEW TRIAL.

¶26. "A motion for a new trial falls within a lower standard of review than does that of a judgment
notwithstanding the verdict or a directed verdict. A motion for a new trial simply challenges the weight of the
evidence. 'The Supreme Court will reverse the lower court's denial of a motion for a new trial only if, by
doing so, the court abused its discretion.' 'We will not order a new trial unless convinced that the verdict is
so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an
unconscionable injustice.'" Sheffield v. State, 749 So. 2d 123, 127 (Miss. 1999) (citations omitted).

¶27. "The standard of review regarding admission [or exclusion] of evidence is abuse of discretion. Where
error involves the admission or exclusion of evidence, this Court 'will not reverse unless the error adversely
affects a substantial right of a party.'" Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss.
1999) (citations omitted).

¶28. Prior to voir dire, Whitten made a motion in limine requesting that the trial court exclude any comment
and evidence as to the contention that Whitten said at some point during the detention of the plaintiffs, "that
nigger judge in Sumner will not be able to help you." Whitten argued first that the statement was not relevant
and second that its probative value would be substantially outweighed by its prejudicial effect. Whitten also
informed the trial court that he denied ever making such a statement. Whitten stated that he had no
objection to the plaintiffs testifying to their recollection of the statement, but without using that "highly
inflammatory word" before the jury. Whitten claimed that the injection of the word "nigger" into the trial
would corrupt the jury. The trial court denied the motion in limine, finding that the alleged statement was
relevant under M.R.E. 401, and that the probative value of the evidence was not substantially outweighed
by the danger of unfair prejudice under M.R.E. 403. Specifically, the trial judge found as follows:

THE COURT: Well, this is certainly a troubling evidentiary matter but I just have to go with my gut
feeling on it. And considering the law and the evidence, knowing it's discretionary, subject to abuse of
discretion on appeal when the Supreme Court looks at it, but I really believe it's admissible. I think it's
relevant. I think the probative value is not substantially outweighed by the danger of unfair prejudice. I
recognize that certainly there will be blacks on the jury, but all things considered, I think the jury is
entitled to hear the entire events as far as what took place supposedly. I know that statement
evidently is denied by the defendant Whitten but I think the jury is entitled to hear all the evidence as
to what happened out there and make a decision. So considering Rule 401, it is relevant. Under 403
the probative value is not substantially outweighed by the danger of unfair prejudice.

¶29. The first mention of the word "nigger" was during direct examination of Cox, where the following
discourse took place between Cox and his attorney:
 Q. Just tell the jury your conversation between you and John Whitten

A. Okay, John Whitten said - - Okay, he said that I could go ahead and pursue a legal matter for this.
He said you can even put it in front of that nigger judge right there in Sumner - -

Q. Those were his words?

A. That was his words, not mine. But wouldn't nothing happen to him but be damn sure something
would come of it, that I wouldn't get anything or anything good would come of it.

¶30. On cross-examination, Spinosa testified as follows regarding what Whitten said: "[I]f you decide you
want to pursue this, he said, if you think it will do you any good, he said we can do something about it. We
can go see that black nigger judge in Sumner if you think it will help you any." Spinosa interpreted the
statement as meaning, "Telling us, as far as the way I saw it, you know, from knowing the man and the
power he had, saying that we could try to do what we wanted to; as far as if we didn't come to a decision
with him nothing would be done about it."

¶31. While being called as an adverse witness, Whitten testified that he did not say the word "nigger," and
that it was Cox, not he, who said it. Specifically, Whitten testified that when he told Cox he was going to
recommend to the Sheriff that Cox be jailed for trespassing, Cox said "That black nigger judge ain't going to
put me in jail." It is of note that Whitten sought to exclude all reference to the word "nigger" from the jury,
yet during his own testimony he brought up the very same word and attributed it to Cox. Thus, Whitten not
only denied using the slur, but placed additional emphasis on it by attempting to turn it against Cox. This
appears inconsistent with his claiming unfair prejudice as a result of admitting the slur into evidence.(3)

¶32. Whitten argues that the verdicts reached by the jury on the intentional tort claims, as well as the
damages they awarded, were influenced by the animus created between an all African-American jury and
Whitten by the injection of the word "nigger" into evidence, which Whitten claims is inflammatory and
irrelevant. Whitten cites Gaston v. State, 239 Miss. 420, 123 So. 2d 546 (1960), where this Court found
reversible error in admitting the word "negro" into evidence when it was wholly irrelevant in pertaining to the
guilt or innocence of the defendant. Whitten also cites GMAC v. Baymon, 732 So. 2d 262 (Miss. 1999),
where an expert testified that during his years of selling collateral insurance protection in another state, the
insurance was placed disproportionately upon racial minorities. This Court held this evidence irrelevant to
the suit being brought by the borrower, which was to determine whether the lender committed breach of
contract or fraud, and reversed because the borrowers counsel had played the "race card" for no justifiable
reason. Id. at 271-2.

¶33. M.R.E. 401 defines relevant evidence as follows:

"Relevant Evidence" means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.

¶34. M.R.E. 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.
¶35. The threshold for admissibility of relevant evidence is not great. Evidence is relevant if it has any
tendency to prove a consequential fact. In both of the cases cited by Whitten, the issue of race was wholly
irrelevant to the claims asserted or to the damages claimed. The comment in the current case is relevant to a
full understanding of all the facts. In this case the purpose of the evidence offered by the plaintiffs was to
show their sense of helplessness, which is relevant to whether they felt free to leave and therefore relevant
to their claim for false imprisonment. The evidence was also relevant to the plaintiffs' contention that Whitten
sought to convince them that they would have no potential remedies available to them to redress his actions
that afternoon. The admission of the evidence therefore meets the threshold requirement of relevance, unlike
the cases relied on by Whitten.

¶36. Was the probative value of the relevant evidence substantially outweighed by the danger of unfair
prejudice? The jury in this case was not unanimous, the verdict was 9-3 in favor of awarding compensatory
damages for the intentional torts and associated emotional distress suffered by the plaintiffs. The jury
declined to award punitive damages. The plaintiffs offered two theories of why the evidence was relevant.
Given the disparity of power between Whitten, a municipal judge with a gun, and the plaintiffs, any words
on his part that emphasize this disparity of power, particularly in the context of discussing the plaintiffs'
potential remedies, would appear highly relevant. The trial court did not abuse its discretion in allowing the
testimony into evidence. The verdict is not so contrary to the overwhelming weight of the evidence that, to
allow it to stand, would be to sanction an unconscionable injustice.

III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING WHITTEN'S MOTION FOR REMITTITUR.

¶37. Our statutory law provides:

The supreme court or any other court of record in a case in which money damages were awarded
may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur
or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the
jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded
were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not
accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted
and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall
have the right to cross appeal for the purpose of reversing the action of the court in regard to the
additur or remittitur.

Miss. Code Ann. § 11-1-55 (1991).

¶38. Whitten repeats his argument that the damages awarded by the jury were "astronomical." Whitten
argues that the jury's decision on the mental anguish and emotional stress damages were a result of bias,
prejudice and passion on the part of the jury. This issue in regard to the award of damages has already
been discussed. The damages awarded were not excessive, or contrary to the overwhelming weight of
credible evidence, and did not result from bias, passion and prejudice on the part of the jury. The trial court
did not err in denying Whitten's motion for remittitur.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING CERTAIN JURY
INSTRUCTIONS.
¶39. Whitten argues that the trial court committed reversible error in granting four jury instructions over his
objection and in denying his motion for a new trial after judgment was entered.

This Court's standard of review in reviewing jury instructions is as follows: In determining whether
reversible error lies in the granting or refusal of various instructions, the instructions actually given must
be read as a whole. When so read, if the instructions fairly announce the law of the case and create no
injustice, no reversible error will be found.

Fielder v. Magnolia Beverage Co., 757 So. 2d 925, 929 (Miss. 1999) (citations omitted).

Jury Instruction 19

¶40. Whitten claims this instruction amounted to a peremptory instruction because it included a reference to
shooting the tire in the vehicle in which the plaintiffs were riding. The instruction states in pertinent part,
"Plaintiff, Randy Cox claims that John Whitten, III, committed a battery upon him by shooting the tire of the
car in which he was riding, by placing a pistol barrel at his head, by frisking him, by knocking his cap and
sunglasses down over his face and by causing him to be handcuffed. [Deleted text] . . . by defendant
Whitten by shooting of the tire in the vehicle in which they were riding." The instruction then went on to
describe the elements of the intentional tort of battery and instructed that these elements had to be met by a
preponderance of the evidence. Though the deletion renders the instruction somewhat unclear, the quoted
text does not amount to a peremptory instruction. It merely sets forth the facts upon which Cox asserts his
claim of battery. The court did not instruct the jury that they must find for Cox on his battery claim if they
also found the tire on the truck was shot by Whitten, despite Whitten's assertions to the contrary. The
instruction leaves the jury to decide whether those facts amount to a battery under the circumstances. The
trial court did not err in granting this instruction.

Jury Instruction 22

¶41. This instruction relates to the plaintiffs' false imprisonment claim. Whitten objected that the instruction
did not provide any standard or guidance to the jury by which to determine the existence of "legal
justification" for the arrest and detention of the plaintiffs by Whitten. The instruction states in pertinent part
that "Legal justification for confinement is only met when the totality of circumstances indicate the actions of
the defendant were objectively reasonable in their nature, purpose, extent and duration." The instruction
then sets forth the elements of false imprisonment. Whitten cites no authority for his proposition that this
instruction was inadequate. As noted earlier, the test for whether a detention is unlawful is whether, looking
at the totality of the circumstances, the action of the defendant was "objectively reasonable in their nature,
purpose, extent and duration." Thornhill v. Wilson, 504 So. 2d at 1208. The jury instruction adequately
conveyed the appropriate legal standard to determine whether the arrest and detention of the plaintiffs was
legally justified. Thus, the trial court did not err in granting this instruction.

Jury Instruction 29

¶42. This instruction instructs the jury to consider compensatory damages if Whitten is found to be liable to
any plaintiff, and to award damages to compensate for any losses or injuries which are proven by a
preponderance of the evidence. Whitten argues that the instruction is fatally flawed because it (1) fails to
advise the jury that compensatory damages must be viewed with "reasonable certainty" and (2) was not
based on the evidence presented by the plaintiffs who confined their claims for damages to evidence of
mental anguish. Whitten's objections at trial were focused on the sufficiency of the proof, arguing that the
emotional distress claims were not corroborated by medical proof, rather than on the language of the jury
instruction. The jury instruction is sufficient in that it calls for the plaintiff's to prove their damages by a
preponderance of the evidence. The trial court did not err in granting this instruction.

Jury Instruction 30

¶43. This instruction is in regard to the claim that the plaintiffs have undergone mental suffering as a result of
the acts of the defendant. The instruction gives definitions of "mental suffering" and notes that there are no
exact standards for measuring such damages, but that the damages should be "fair and just." Whitten again
argues that the plaintiffs' proof failed to prove that they actually suffered any mental anguish damages. This
argument again focuses on the sufficiency of the proof put on by the plaintiffs, an argument based on the
sufficiency of the evidence, not the language of the jury instruction.

¶44. The instructions given to the jury, when read as a whole, fairly announce the law of the case and
created no injustice. Whitten's assignments of error regarding these four jury instructions are without merit.

V. SHOULD THE TRIAL COURT HAVE ENTERED AN ADDITUR OR ORDERED A
NEW TRIAL BASED ON THE JURY'S AWARD OF $0.00 FOR WHITTEN'S TRESPASS
CLAIM?

¶45. The standard of review for an additur is the same as that for remittitur. The jury found for Whitten on
each of his counterclaims of trespass against Cox, Logan and Spinosa, and awarded him $0.00 in damages.
Whitten argues that because his land had been burdened with an unlawful trespass, the failure of the jury to
award at least nominal damages was contrary to the law and/or the result of bias, prejudice or passion. The
plaintiffs argue that there was no error in refusing to award actual damages because Whitten failed to
present any evidence of actual damages. For the same reason, plaintiffs argue that the trial court did not err
in refusing to grant an additur. The jury was instructed on both nominal damages, as well as compensatory
damages.

¶46. Whitten's claim that there should have been an additur regarding compensatory damages is without
merit, because he did not claim or prove any actual damages resulting from the trespass which the jury
could have compensated. "It is a principle of universal application that every trespass gives the landowner a
right to at least nominal damages. However, in order to recover more than nominal damages, actual
damages must be shown." Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 363, 175 So. 2d 471, 474
(1965).

¶47. However, Whitten is correct to point out that where there is a trespass to land, the landowner has a
right to at least nominal damages. The jury's refusal to award nominal damages for the trespass was in error,
but since there were no actual damages resulting from the trespass, this error is of little consequence. If this
Court reversed and remanded on this issue, Whitten could only receive nominal damages. Instead, this error
will be cured by this Court reversing and rendering an award of nominal damages without the necessity of
remand or retrial. See Daniel v. McNeel, 221 Miss. 666, 668, 74 So. 2d 753, 754 (1954) (where the
Court reversed and rendered and awarded a nominal sum of $10.00 when the only issue to be resolved
was the payment of nominal damages.) Accordingly, we reverse and render as to the trespass claim only
and award Whitten nominal damages in the total amount of $10.00 against Cox, Logan, and Spinoza,
jointly and severally.
 CONCLUSION

¶48. There is sufficient evidence in the record from which a reasonable jury could find for Cox, Logan, and
Spinosa on their intentional tort claims of assault, battery, and false imprisonment, their emotional distress
claims and to award compensatory damages for these claims. The trial court did not err in denying
Whitten's motion for a directed verdict and motion for j.n.o.v. on these issues. Though mindful of its
potentially inflammatory and prejudicial effects under many circumstances, the trial court did not abuse its
discretion in allowing the word "nigger" into evidence in this particular case. In the context of the evidence
presented, it was relevant, and its probative value was not substantially outweighed by its prejudicial effect.
The verdict of the jury is not so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction an unconscionable injustice. The compensatory damages awarded by the jury were not
excessive or contrary to the overwhelming weight of credible evidence, and did not result from bias,
passion or prejudice on the part of the jury. The instructions that were given to the jury, when read as a
whole, fairly announced the law of the case and created no injustice. The jury's refusal to award nominal
damages for the trespass to Whitten's land was in error, but since there were no actual damages resulting
from the trespass, such an error will be cured by this Court rendering an award of nominal damages in the
amount of $10.00 in favor of Whitten.

¶49. Therefore, this Court reverses the judgment below in part to the extent that it awarded John W.
Whitten, III, no nominal damages for the trespass on his land by Randy Cox, Tod Logan, and Philip
Spinosa, and this Court renders judgment here that John W. Whitten, III, shall recover the total sum of
$10.00 in nominal damages from Randy Cox, Tod Logan, and Philip Spinoza, jointly and severally, plus
post-judgment interest at the annual rate of 8% from the date of this judgment until paid. In all other
respects, the judgment of the Tallahatchie County Circuit Court is affirmed.

¶50. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, MILLS AND DIAZ, JJ.,
CONCUR. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION. McRAE, J., CONCURS IN PART AND DISSENTS
IN PART WITH SEPARATE WRITTEN OPINION.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶51. I concur with the majority opinion and the judgment except for their disposition of the nominal
damages issue. This Court should not determine the amount of such damages. It is only within the province
of the trier of fact, and not of this Court, to determine the amount of nominal damages which are
appropriate. Accordingly, I dissent, in part.

¶52. Since Whitten is asking for an additur for damages, nominal or otherwise, this Court's discretion is
limited. We held in Rodgers v. Pascagoula Pub. Sch. Dist,611 So. 2d 942, 945 (Miss. 1992), that "[t]he
scope of appellate review in an additur appeal is limited to determining whether the trial court abused its
discretion." See also State Highway Comm'n v. Warren, 530 So. 2d 704, 707 (Miss. 1988). "Awards
set by jury determination are not merely advisory and generally will not be set aside unless so unreasonable
as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.
Rodgers, 611 So. 2d at 945 (citations omitted). The amount of damages awarded is primarily a question
for the jury. South Cent. Bell Tel. Co. v. Parker, 491 So. 2d 212, 217 (Miss. 1986); Edwards v.
Ellis, 478 So. 2d 282, 289 (Miss. 1985)." Maddox v. Muirhead, 738 So. 2d 742, 743-44 (Miss.
1999). We may not set the amount of damages. That power lies within the province of the jury and the
discretion of the trial judge to award an additur. Miss. Code Ann. § 11-1-55 (1991) is controlling on this
issue and specifically states the proper procedure for handling such matters:

The supreme court or any other court of record in a case in which the money damages were awarded
may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur
or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the
jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded
were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not
accepted then the court may direct a new trial on damages only. If the additur or remittitur is
accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur
shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the
additur or remittitur.

(emphasis added).

¶53. The majority's reliance on Daniel v. McNeel, 221 Miss. 666, 668, 74 So. 2d 753, 754 (1954) is
misplaced. With the amendment of Miss. Code. Ann. § 11-1-55, the powers of this Court to determine the
amounts of such awards were extinguished. We must use great discretion in disturbing jury awards. The
majority not only disturbs the jury's award, but relies on precedent that has been statutorily overruled.

¶54. The jury's intent was very clear in their decision to find that a trespass occurred but only awarded
$0.00 in damages. It is also clear that the trial judge did not award an additur. While we may hold that he
abused his discretion, we are not in a position to set the amount of nominal damages. By stepping in and
creating its own figure, the majority essentially issued an additur and supplanted its decision for that of the
jury and the trial judge. We should remand the case on this issue so that a jury may determine what nominal
damages are appropriate. Accordingly, I dissent in part.

1. These events led to Whitten, a municipal judge, being fined and issued a public reprimand by this Court.
See Mississippi Comm'n on Judicial Performance v. Whitten, 687 So. 2d 744 (Miss. 1997). The
investigation and discipline were excluded from consideration by the jury in the present case.

2. Adams was pending when the plaintiffs responded to Whitten's appeal, but the case has since been
decided, and the motion for rehearing denied.

3. All three plaintiffs in this action are Caucasian, as is Whitten.