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HOWARD BROTHERS OF PHENIX CITY, INC., AND DENISE PETERS v. E. C. PENLEY

JULY 23, 1986

HOWARD BROTHERS OF PHENIX CITY, INC., AND DENISE PETERS
v.
E. C. PENLEY



EN BANC.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Howard Brothers of Phenix City, Inc. (Howard Brothers) and Denise Peters appeal from a judgment of the circuit court of Warren County in favor of E. C. Penley for $100,000 for injuries sustained in the Howard Brothers Store when he was taken hostage by a mentally disturbed customer.

We find there was a jury question on liability, and that no erroneous evidence was admitted. The jury verdict, however, was excessive, and we direct a remittitur of $35,000 or new trial.

 Penley has filed a cross-appeal from the circuit judge's refusal to submit any punitive damages instructions to the jury. We find no error here, and affirm the cross-appeal.

 FACTS

 On June 2, 1981, Howard Brothers, an Alabama corporation, operated a discount department store in Vicksburg. Peters was a salesclerk there. Around 9:30 or 10:00 o'clock that morning Lewis Adams, Jr., approached the handgun showcase and asked Peters to see a certain handgun. She unlocked the case and handed him a .357 caliber Magnum pistol. He told her he wanted to buy it, and asked her if she had bullets for it. She saw they had ammunition in stock and told him," Yes. "He then told her he wanted to buy bullets also.

 When she turned to get a purchase form for Adams to fill, he snatched the bullets from the counter, and with the cylinder open loaded the revolver.

 Adams told her he wanted to take the gun outside to see if it would shoot. She refused permission, and asked for the gun back.

 Peters tried to get the attention of a customer nearby without success, and then got a microphone and asked for change in the sporting goods department. She testified Adams then appeared strange, and she said nothing further to him.

 Larry Copeland, a store supervisor, appeared with change just as Adams was going up an aisle. Peters told

 Copeland to get the gun. Copeland asked for the gun, but Adams refused. She testified that at that moment Penley, a customer, appeared, and Adams fired the gun.

 Peters fell to the floor and left through a warehouse in the rear of the store.

 Penley, who was 70 years of age at the time of trial, testified he was in the store to purchase freon. He heard the first shot, and was attempting to hide when Adams slipped up beside him, caught him in the back by his clothes and said," You'll be my hostage. "Adams pushed Penley toward the west side of the store yelling," Get back, get back "to a number of people in the store. Adams fired the pistol when it was close to Penley's head. He kept telling Penley he was going to shoot him. He shoved Penley through the warehouse, and wanted Penley to go to his truck. Then they got to the door three law enforcement officers appeared, and Penley testified Adams shot the pistol again. Penley yelled at the officers not to shoot. Adams shoved Penley back inside a vestibule, kicked some soft drink cases over, and turned off the lights. Adams wrapped his legs around Penley and told him he was going to shoot him.

 Sheriff Paul Barrett was summoned by the deputies, and after he got there Adams told him he was going to kill Penley. Barrett eventually persuaded Adams to" swap "guns. The officers took the powder and lead out of a small caliber pistol. Adams shoved Penley out the door and threw the Magnum out. Barret threw the small caliber pistol in and the officers went in and subdued Adams.

 Adams, a black, was born February 22, 1962. He finished the tenth grade in school. Previous to June 2, 1981, he had been in a mental institution in Louisiana, and had been a patient in the Mississippi State Hospital in Whitfield on two occasions.

 He had spent the previous night with a friend drinking, and taking" black mollies "and Valium. He testified on that morning he and his friend awoke around 7:00, and he drank several drinks of whiskey and took about three each of" black mollies "and Valium. His friend drove him to the store. Adams said he was" high. "

 Peters testified there was nothing unusual about Adams' appearance or conduct until he was refused permission to take the pistol out of the store. The officers testified they detected no smell of alcohol on him following his arrest.

 The episode proved unnerving to Penley. He developed a ringing in his ears, and on June 10, 1981, consulted Dr. Chester W. Masterson, an otolaryngologist. Dr. Masterson saw Penley again in September, and in September of 1982 and 1983. He diagnosed Penley's problem as tinnitus, a constant ringing in his ears. He said Penley needed a radio or some type device to produce noise in order to drown out the ringing so as to permit him to rest. He said this condition was permanent, and that there was no cure. He found Penley had a loss of hearing in both ears, but with a 12.5 percent greater loss in his left than right ear. He testified approximately 10 percent of the population would have tinnitus by age seventy in any event.

 From Penley's history Dr. Masterson was of the opinion the tinnitus in the left ear came from the gunshot. Penley's total medical expenses were $250.50 to Dr. Masterson, and $50 for medication. Penley also, following this episode, was much more nervous and uneasy. At the time of the shooting Penley had a life expectancy of 11.3 years.

 William G. Johnson, Jr., a clinical psychologist at Whitfield, testified he examined Adams and found him to be a chronic schizophrenic paranoid type. Upon Adams previous admission he had also been diagnosed a schizophrenic. Dr. Johnson testified Adams could mask his symptoms, and on several occasions in the hospital he appeared to be covering up his symptoms. He also testified schizophrenia was uncovered by specialists asking the right questions.

 On June 2, 1981, Peters had been employed by Howard Brothers about a year, and about six months in the sporting goods department. The only instructions she had received relative to ...


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