IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CA-0958-SCT

DEBORAH F. WALLACE

v.

WALTER M. THORNTON, SR., D/B/A THORNTON BONDING COMPANY AND LEVON

FREE

DATE OF JUDGMENT: 7/15/92

TRIAL JUDGE: HON. KATHY KING JACKSON

COURT FROM WHICH

APPEALED:

JACKSON COUNTY CIRCUIT COURT

ATTORNEYS FOR

APPELLANT:

CHESTER D. NICHOLSON

GAIL D. NICHOLSON

ATTORNEY FOR APPELLEE: GEORGE S. SHADDOCK

NATURE OF THE CASE: CIVIL - OTHER THAN PERSONAL INJURY AND

PROPERTY DAMAGE

DISPOSITION: REVERSED AND REMANDED - 3/7/96

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 3/28/96

BEFORE PRATHER, P.J., PITTMAN AND McRAE, JJ.

McRAE, JUSTICE, FOR THE COURT:

¶1. This case arises from a July 15, 1992 jury verdict of the Jackson County Circuit Court awarding

Deborah Wallace $1,000.00 in damages from Walter M. Thornton, Sr.,(1) d/b/a Thornton Bonding

Company, and his employee, Lavon Free. Wallace contends that the award is inadequate to compensate

her for the injuries she sustained as the result of an October 1, 1990 incident wherein she was mistakenly

apprehended in her Gautier home by two bail bondsmen and taken to Thornton Bonding Agency in

Pascagoula against her will. Finding that the circuit court erred in granting Thornton's motion for a directed

verdict on the charge of false imprisonment and in denying Wallace's requested jury instruction on punitive

damages, we reverse and remand for a new trial consistent with this opinion.

I.

¶2. Lavon Free and Doug Coon were employed as bail bondsmen by Walter Thornton, d/b/a Thornton
Bonding Company. On October 1, 1990, they were looking for Deborah Renee Tabuyo, who had jumped

bond on charges from the Pascagoula City Court. Both were acquainted with the 5'7"', 230 pound Tabuyo

and carried her photograph with them. Checking a lead from some contacts as to her whereabouts, the two

went to the Belle Ville Apartments in nearby Gautier.

¶3. Free's contacts pointed them to an apartment, where, without confirming the identity of its occupant,

they began knocking on the door. There was no response. Free went over to the apartment office, where

he told Yvonne Fuller, the manager, that he wanted to get into Tabuyo's apartment. After she refused to

give him the key, Free threatened to kick down the apartment door.

¶4. Coon testified that Free told him that he had telephoned Thornton after Fuller refused to let him in the

apartment. Free then told him "to kick the G.D. door in--that Walter had told him to kick the door in and

get her."

¶5. Coon kicked in the door. Once inside, he stated that he went upstairs where he had heard crying. He

opened a bedroom door to find the 5'3"', 120 pound Deborah Wallace in a T-shirt and underpants with her

two toddlers behind her. Coon testified that he then realized they had apprehended the wrong woman and

informed Free of their mistake.

¶6. Wallace testified that she had been napping after taking some cold medicine that left her groggy and

sedated. She stated that Free was the first to come up the stairs; in her sedated state, she thought that he

had a gun. Neither man identified himself nor looked at the identification she presented after she told them

she was not Deborah Tabuyo. After Wallace was given a chance to dress and clean up her children, she

testified that they told her, "You're coming with us, you have no choice. You are coming with us." She and

the children got into the car. Coon testified that she was "pretty well upset" and indicated that she did not

want to go with them.

¶7. Free contends that no force was involved in getting Wallace to leave with them. To the contrary, he told

her that she would have to come with them to Thornton's office in Pascagoula to see about having her door

repaired:

I said, "Ma'am, we was looking for a lady named Deborah Tabuyo." And I looked around at Doug

and I said, "You done kicked the wrong door in, Buddy," just like that. Then she said, "What y'all

going to do about my door?" I said, "Ma'am, I ain't got no money." I said, "There ain't but one man

that can solve your problem getting your door fixed. That's Mr. Thornton. If you want to, you can ride

down here with us or you can follow me in your car." She said, "I don't have a car and can't drive, but

I want my door fixed." I said, "Well, we'll give you a ride down there and get your door fixed. You

got to talk to him."

¶8. At the office, Coon testified that he and Free told Thornton what had happened and "[h]e said we

shouldn't have put her in the car and brought her down here." He further stated as follows:

Q. All right. What else did Thornton say at that time?

A. Uh--he said to keep the stories, what Free told him. He said to keep to that story.

Q. What story was that?
A. That she wanted to come to the office and that we didn't make her come to the office, that she

wanted to come to the office.

Q. Is that true? Did she want to come to the office?

A. No, sir. She didn't want to come.

¶9. Wallace testified that they spent about a half hour at Thornton's office, where no one seemed to know

what to do about her situation. To add to the confusion, Deborah Tabuyo arrived at the same time as

Wallace, Free and Coon. When they left, Wallace indicated that Coon admitted to her that they had made

a mistake, offered to take her to the store on the way home and told her to call Thornton Bonding if she had

any problems.

¶10. As a result of the incident, Wallace claimed that she felt "violated," and "like I wasn't safe; that anyone

could come in and do anything to me." She lost weight and suffered from nightmares. Distressed, she sought

counseling and was diagnosed as suffering from post-traumatic stress disorder.

¶11. Wallace filed a complaint against Thornton and his agents, Lavon Free and Doug Coon,(2) on

November 6, 1990. She raised allegations of false imprisonment, assault, invasion of privacy and negligence

in connection with the October incident, seeking $250,000.00 in compensatory damages and $250,000.00

in punitive damages.

¶12. A jury trial was held on July 13 and 14, 1992. The circuit court granted Thornton's motion for a

directed verdict on the issue of false imprisonment. The jury then returned a verdict in favor of Wallace,

awarding her $1,000.00 in compensatory damages. Wallace's July 21, 1992 motion for an additur, or in the

alternative, for a new trial, was overruled.

II.

¶13. Wallace first asserts that the circuit court erred in granting Thornton's motion for a directed verdict on

the charge of false imprisonment when a jury question existed as to whether she went willingly with Coon

and Free to Thornton's office in Pascagoula or whether she was taken there against her will.

¶14. When determining the propriety of a motion for a directed verdict, this Court, like the circuit court, is

required to consider the evidence in a light most favorable to the plaintiff, giving her the benefit of every

favorable inference which reasonably may be drawn from the evidence. Lewis v. Griffith, 664 So.2d 177,

187 (Miss.1995); Wall v. Swilley, 562 So.2d 1252, 1256 (Miss.1990). In Regency Nissan, Inc. v.

Jenkins, No. 92-CA-00052-SCT, --- So.2d ---- [1995 WL 598823] (Miss. October 12, 1995), we

articulated the proper standard when there is conflicting testimony:

When contradictory testimony exists, this Court will "defer to the jury, which determines the

weight and worth of testimony and credibility of the witness at trial." Odom v. Roberts, 606

So.2d 114, 118 (Miss.1992). This Court "will not reverse a jury verdict unless it is against the

overwhelming weight of evidence and credible testimony." Gifford v. Four-County Elec. Power

Ass'n, 615 So.2d 1166, 1171 (Miss.1992). Regency, who moved for a directed verdict, was

required to meet this standard with the evidence and inferences drawn therefrom viewed in

a light most favorable to Jenkins. Eaton v. Porter, 645 So.2d 1323, 1325-26 (Miss.1994).
Factual disputes arise when "one party swears to one version of the matter in issue and another says

the opposite." Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 762

(Miss.1989). A directed verdict is inappropriate when questions of fact exist. Illinois Central R.R. v.

White, 610 So.2d 308, 314 (Miss.1992).

Regency, --- So.2d at ---- (emphasis added).

¶15. Our standard of review requires that the circuit court, like this Court, look at the evidence in a light

most favorable to Deborah Wallace and to give her the benefit of every doubt. In granting Thornton's

motion for a directed verdict on the issue of false imprisonment, however, the circuit court stated:

On the issue of false imprisonment, I've gone over the testimony of the notes that I have and I know

that plaintiff's counsel takes issue with my position that there has to be some sort of intentional act, but

going over the testimony, I did not hear sufficient testimony to make me believe that this is a case of

false imprisonment. The testimony, as the Court recalls, is that the plaintiff did not want to go with

them but that she did. No one physically touched her. No one forced her into the car. Nobody told

her she had to go with them. Mr. Coon testified that, as he recalled it, the only reason Mr. Free

indicated to her that she had to go with him was to get the money to get her door fixed.

* * * * * *

My understanding of the law of false imprisonment is that, number one, the defendant or the person

doing the imprisoning must have the intent to arrest or imprison the person. I don't think Mr. Free or,

the testimony that I heard, Mr. Free or Mr. Coon intended to arrest this woman. What they wanted

was to get her down there and get her paid for her door.

The circuit court's comments suggest to us that it was Coon's testimony and not Wallace's that was viewed

in the most favorable light and given the benefit of every doubt.

¶16. The tort of false imprisonment has only two elements: (1) detention of the plaintiff and (2) that such

detention was unlawful. Lee v. Alexander, 607 So.2d 30, 35 (Miss.1992); Page v. Wiggins, 595 So.2d

1291, 1294 (Miss.1992); Thornhill v. Wilson, 504 So.2d 1205, 1208 (Miss.1987). In Thornhill, we

noted that the second element turns on whether, looking at the totality of the circumstances, the actions of

the defendants were "objectively reasonable in their nature, purpose, extent and duration." Id. at 1208. It is

the reasonableness of the defendants' actions, not their intent, that matters. The record indicates that

Wallace had been resting, "drugged" on cold medication, when Free and Coon kicked down the door to

her apartment. Although she identified herself and the two bondsmen realized that she was not the bail

jumper they sought, it does not appear that any apologies or other efforts were made to ease the situation.

Even accepting Coon's and Free's version of the incident that they took her to Pascagoula to get money for

the door, the reasonableness of their actions raises questions of fact.

¶17. Because there was conflicting testimony, which should have been viewed in a light most favorable to

Wallace, and the circuit court looked at the intent of the bail bondsmen rather than the reasonableness of

their actions in detaining Wallace, the charge of false imprisonment should have gone to the jury. The circuit

court, therefore, erred in directing the verdict in favor of Thornton on this issue.

III.
¶18. Wallace next asserts that the circuit court erred in refusing to grant the punitive damages instruction she

requested. Instruction P-14 reads as follows:

Punitive damages are added damages awarded for public service in bringing a wrong doer to account,

as an example to warn an[d] deter others from repeating the same act. They are never awarded to

benefit the injured party or as a matter of right, but rather to punish and to compel the wrong doer to

have due and proper regard for the rights of the public.

Punitive damages may also be awarded if you find that the intentional actions complained of with

regard to the intentional infliction of emotional distress, or the invasion of privacy, or the false

imprisonment were of a wanton or malicious nature; or if the negligent acts or omissions complained

of were committed by such gross negligence as to be indicative of a wanton and willful disregard of

the rights of others.

¶19. "A plaintiff is entitled to punitive damages only if he has demonstrated a willful or malicious wrong or

the gross, reckless disregard for the rights of others." Valley Forge Insurance Co. v. Strickland, 620

So.2d 535, 540 (Miss.1993), cert. denied, 510 U.S. 1024, 114 S.Ct. 635, 126 L.Ed.2d 593 (1993),

quoting Strickland v. Rossini, 589 So.2d 1268 (Miss.1991). See also James W. Sessums Timber Co. v.

McDaniel, 635 So.2d 875, 881 (Miss.1994) (punitive damages appropriate in cases of gross negligence).

Punitive damages are to be assessed only in "extreme cases," and since they are intended "as an example

and warning to others, 'they should be allowed only with caution and within narrow limits.' " Beta Beta

Chapter of Beta Theta Pi Fraternity v. May, 611 So.2d 889, 894 (Miss.1992), quoting Consolidated

American Life Insurance Co. v. Toche, 410 So.2d 1303, 1304-1305 (Miss.1982); Snow Lake Shores

Property Owners Corp. v. Smith, 610 So.2d 357, 362 (Miss.1992). See also Boling v. A-1 Detective

& Patrol Service, Inc., 659 So.2d 586, 588-589 (Miss.1995) (punitive damages not appropriate in cases

of simple negligence).

¶20. In determining whether the issue of punitive damages should be submitted to the jury, the circuit court

must decide " 'whether under the totality of the circumstances and viewing the defendant's conduct in the

aggregate, a reasonable, hypothetical trier of fact could have found either malice or gross negligence or

reckless disregard.' " Peoples Bank and Trust Co. v. Cermack, 658 So.2d 1352, 1361 (Miss.1995),

quoting Colonial Mortgage Co., Inc. v. Lee, 525 So.2d 804, 808 (Miss.1988). At the very least, a jury

could have found that Coon and Free exhibited a reckless disregard for Wallace's rights or acted with gross

negligence in kicking down her door; in not leaving her apartment after she showed them sufficient

identification to prove that she was not the bail jumper they sought; and in insisting that she travel with them

from Gautier to Pascagoula. Accordingly, the instruction should have been granted.

IV.

¶21. The circuit court granted Thornton's Instruction D-4, which reads as follows:

The court instructs the jury that under the law of the State of Mississippi to be applied to you, a bail

bondsman is authorized and empowered to apprehend and to take into custody a person whom he

has bonded and who did not appear for a court appearance and such bondsmen may use such

reasonable means and reasonable force, as may be necessary to so apprehend such bail jumper.

Wallace asserts that this instruction is an improper statement of the law.
¶22. On appeal, we do not review jury instructions in isolation; rather, they are read as a whole to

determine if the jury was properly instructed. People's Bank and Trust Co. v. Cermack, 658 So.2d

1352, 1356 (Miss.1995); Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993); Payne v. Rain Forest

Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989); Byrd v. F-S Prestress, Inc., 464 So.2d 63, 66

(Miss.1985). Therefore, defects in specific instructions do not require reversal "where all instructions taken

as a whole fairly--although not perfectly--announce the applicable primary rules of law." Burton, 615 So.2d

at 583. However, if those instructions do not fairly or adequately instruct the jury, this Court can and will

reverse. Id. We do not make much comment on this except to say that it appears to be an abstract

instruction and may be acceptable if other instructions adequately cover it.

V.

¶23. The jury awarded Wallace compensatory damages in the amount of $1,000.00. The circuit court

denied her motion for an additur. On appeal, she asserts that pursuant to Miss.Code Ann. § 11-1-55

(1972), the damages awarded are contrary to the overwhelming weight of the evidence.

¶24. In reviewing requests for additurs, this Court has stated:

The scope of appellate review in an additur appeal is limited to determining whether the trial court

abused its discretion. State Highway Comm'n v. Warren, 530 So.2d 704, 707 (Miss.1988). This

Court has further noted that the party seeking the additur has the burden of proving his injuries,

damages and loss of income. In determining whether this burden is met, this Court must view the

evidence in the light most favorable to the defendant, giving that party all favorable inferences that

reasonably may be drawn therefrom. Miss.Code Ann. § 11-1-55 (Supp.1990); Odom v. Roberts,

606 So.2d 114 (Miss.1992); Copeland v. City of Jackson, 548 So.2d 970, 974 (Miss.1989); Hill

v. Dunaway, 487 So.2d 807, 811 (Miss.1986). Awards fixed by jury determination are not merely

advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike

mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.

Mississippi State Highway Comm'n v. Antioch Baptist Church, 392 So.2d 512, 514 (Miss.1981)

citing Toyota Motor Co. v. Sanford, 375 So.2d 1036 (Miss.1979) and Womble v. Mississippi

State Highway Comm'n, 239 Miss. 372, 123 So.2d 235 (1960); see also Standard Products,

Inc. v. Patterson, 317 So.2d 376 (Miss.1975). This is because the amount of damages awarded is

primarily a question for the jury. South Central Bell Telephone Co. v. Parker, 491 So.2d 212, 217

(Miss.1986); Edwards v. Ellis, 478 So.2d 282, 289 (Miss.1985). Additurs represent a judicial

incursion into the traditional habitat of the jury, and therefore should never be employed without great

caution. Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988).

Rodgers v. Pascagoula Public School District, 611 So.2d 942, 945 (Miss.1992).

¶25. Pursuant to Miss.Code Ann. § 11-1-55, an additur may be granted by the court upon finding either

that the finder of fact was influenced by bias, prejudice or passion, or that the amount of the award was

contrary to the overwhelming weight of the evidence. Green v. Grant, 641 So.2d 1203, 1208

(Miss.1994). Wallace put on proof that as a result of the incident in question, she had been diagnosed by

Dr. William W. Dreher, Ph.D., as suffering from post-traumatic stress syndrome. There was further proof

that she also had suffered from post-partum depression after the birth of her older daughter in 1987, which,

Dr. Dreher testified, might have increased her susceptibility to the injury claimed. Wallace stated that she
had incurred counseling expenses of $290.00. She put on no proof of the severity of her injuries, nor of lost

wages or other damages.

¶26. The jury was properly instructed on compensatory damages as well as on damages for pain and

suffering. Given the uncontroverted evidence and looking at it, as we must, in a light most favorable to

Thornton, we cannot say that the award was against the weight of the evidence or was the product of bias,

passion or prejudice.

VI.

¶27. When granting Thornton's motion for a directed verdict on the issue of false imprisonment, the circuit

court failed to look at the evidence in a light most favorable to Wallace, and erroneously looked at the

bondsmen's intent rather than the reasonableness of their actions. Further, it was error to deny the punitive

damages instruction which Wallace sought. We do not, however, hold the circuit court in error for refusing

to grant Wallace's motion for an additur. Accordingly, we reverse and remand for a new trial consistent

with this opinion.

¶28. REVERSED AND REMANDED.

DAN M. LEE, C.J., PRATHER, P.J., and PITTMAN, BANKS, JAMES L. ROBERTS, Jr.,

SMITH and MILLS, JJ., concur. SULLIVAN, P.J., not participating.

1. Thornton died after this appeal was filed.

2. Although Coon testified at trial, the charges against him were dismissed without prejudice because he

was not properly noticed of the trial.