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OCTOBER 05, 1988





The 1984 Super Bowl spawned a super brawl among the Graves family at the Marion Manor Apartments in McComb, Mississippi, following which plaintiff sued his father, brother and sister-in-law for damages resulting from an assault and battery. The jury found for plaintiff in the amount of $30,000.00. The appeal from judgment thereon presents questions regarding defenses available in an assault and battery action and the requirements of proof of future medical expenses and lost earning capacity as elements of damage. We affirm on liability and reverse and remand for a new trial on damages only.


 First, the lineup. John L. Graves, Jr., also known as Johnny, is an adult resident of McComb, Mississippi. Johnny was the Plaintiff below and is the Appellee here.

 John L. Graves, Sr., is Johnny's father. Vince and Lane Graves, husband and wife, are Johnny's brother and sister-in-law respectively. All were Defendants below. John L. Graves, Sr., is the sole Appellant.

 On January 22, 1984, Vince Graves and his wife, Lane, together with Vince's father, John, Sr., were watching the Super Bowl on television at Vince's apartment in McComb, Mississippi. Also in the apartment was Vince and Lane's son, Vince, Jr., ten months old. During half time John, Sr. called another son, Johnny, on the telephone and invited him to the apartment to watch the second half of play. Soon thereafter Johnny arrived with three of his friends to watch the game. Johnny's wife, Judy, arrived ten to fifteen minutes later.

 Vince and Lane began to chide Johnny about the absence of his favorite team, the Dallas Cowboys, from the Super Bowl. The Defendants denied that they had goaded Johnny. In any event, Johnny, feeling that he was not welcome, declared that he was leaving and instructed his wife and friends to accompany him out of the apartment.

 Immediately after Johnny had left with his wife and friends there was a loud crash outside the apartment door which sounded like breaking glass. Vince investigated and discovered that Johnny had thrown an empty quart bottle of beer on the sidewalk immediately in front of his apartment door. Johnny admitted breaking the bottle. Words were exchanged and a scuffle ensued which carried the combatants, Vince and Johnny, back through the door and into the apartment.

 John, Sr., intervened and attempted to break up the fight by restraining Johnny. While Johnny was so restrained by his father, Vince tackled his brother and father and all three fell to the floor. While Johnny was on the floor, and still being restrained by his father, Vince bit Johnny on the face, tearing off his left lower eyelid in the process. While this was occurring, Lane Graves, joined in the fray by hitting Johnny with the receiver of a telephone.

 Johnny was taken to a hospital where a doctor sutured his wound. He later underwent two surgical procedures in an effort to reconstruct the eyelid. Additionally, because his

 tear duct is damaged, he is required to artificially irrigate and cleanse his left eye. He had incurred nearly $8,500.00 in medical expenses at the time of trial.

 On February 28, 1984, John L. Graves, Jr., (Johnny) filed suit in the Circuit Court of Pike County, naming as defendants his father, John L. Graves, Sr., (John, Sr.), his brother Vince Graves, and Vince's wife, Lane Graves. Johnny's complaint demanded damages resulting from the assault which Johnny alleged he had suffered on January 22, 1984.

 The case was called for trial on July 15, 1986. Only four witnesses appeared: Johnny, his wife Judy, and defendants Vince and Lane. John, Sr., did not testify. Both Lane and Vince testified that Johnny was the aggressor in the fight. Lane admitted hitting Johnny with a telephone receiver but testified she did not know how Johnny's eye came to be hurt. Vince denied that he had bitten his brother. Both the plaintiff and the defendants accuse each other of drunkenness. All parties admitted to at least moderate drinking that day. The jury returned a verdict for Johnny and against all defendants in the amount of $30,000.00. From this verdict, John, Sr., appeals.


 John, Sr., first urges that the Circuit Court erred when it refused his requested comparative negligence instruction. At trial all defendants requested that the Court instruct the jury that it should reduce John, Jr.'s damages in proportion to the extent that his negligence contributed to his own ...

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