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IN THE COURT OF APPEALS 04/08/97 OF THE STATE OF MISSISSIPPI
NO. 96-CA-00332 COA

TOMMY A. DABBS APPELLANT v. JAMES IRBY AND DWIGHT STANFORD APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. GEORGE C. CARLSON JR. COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GERALD W. CHATHAM, SR. ATTORNEY FOR APPELLEES: PAUL R. SCOTT NATURE OF THE CASE: CIVIL LIABILITY TRIAL COURT DISPOSITION: COMPENSATORY DAMAGES OF $2,500 AND $3,000; PUNITIVE DAMAGES OF $20,000 MANDATE ISSUED: 8/29/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ.

PAYNE, J., FOR THE COURT:

Tommy A. Dabbs was found liable for the shooting deaths of two hunting dogs belonging to James Irby and Dwight Stanford. The trial court awarded compensatory damages in the amount of $3000 to Mr. Irby and compensatory damages in the amount of $2,500 to Mr. Stanford. The trial court also awarded punitive damages in the amount of $20,000. Feeling aggrieved, Mr. Dabbs filed this appeal. FACTS On December 23, 1992, the appellees, Irby and Stanford, were raccoon hunting when three of their hunting dogs struck the trail of a raccoon which led them toward appellant Dabbs's property. The testimony indicated that as the dogs approached Dabbs's property a person on an all terrain vehicle fired several shots and two of the dogs never returned to Irby and Stanford. The following morning, Stanford along with the sheriff and two other men went to Dabbs's home and requested permission to look for the dogs on his property. Dabbs agreed and Stanford began his search at the location where the shots had been fired the night before. At this location, Stanford discovered two puddles of blood and several spent shotgun shells. Stanford also found four-wheeler tracks in the frost and followed drops of blood between the tire tracks back toward Dabbs's house. A month or two later, the two dogs were found in a drainage ditch approximately four miles away from the appellant's property. Dabbs denied shooting the dogs and none of the witnesses could positively identify Dabbs as being the person who fired the shots on the night of December 23. The jury was instructed as to the law regarding liability and compensatory damages and returned the verdicts in favor of both appellees as stated above. Pursuant to the provisions of Mississippi Code Section 11-1-65, the trial court determined that the issue of punitive damages should be presented to the jury. Dabbs testified that his net worth was "probably" zero because he had transferred all of his assets to his wife in an effort to divest himself of any assets so that he would qualify for social security disability. The appellees indicate that Dabbs was also questioned about other assets that he owned, including several antique automobiles, a gun collection, real estate, and other items. After receiving the court's instructions and hearing argument of counsel, the jury returned a punitive damage verdict of $20,000. ANALYSIS I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE ATTORNEY FOR THE PLAINTIFFS TO QUESTION PROSPECTIVE JURORS ON VOIR DIRE EXAMINATION BY GIVING THEM A HYPOTHETICAL WHICH WAS ERRONEOUS AND THEN ASKING THE PROSPECTIVE JURORS TO COMMIT WHETHER OR NOT, UNDER THE SET OF HYPOTHETICAL FACTS, THEY WOULD RETURN A VERDICT IN FAVOR OF THE PLAINTIFFS. Dabbs contends that the appellees' attorney, Paul Scott, violated Circuit Court Rule 3.02 when he posed a hypothetical to one of the prospective jurors and asked for a response. The exchange between Mr. Scott and a prospective juror took place following a question posed by one of the prospective jurors after an explanation of the standard of proof by Mr. Scott. The exchange that

occurred is as follows: UNIDENTIFIED PROSPECTIVE JUROR: A vermin laying five foot inside a fence row with a shotgun blast you're going to blame it on the man that owns the manor and he's got 192 shotguns? Is that what you mean by circumstantial and preponderance of the evidence? MR. SCOTT: That's not what the facts of this case are. UNIDENTIFIED PROSPECTIVE JUROR: That's just what I'm asking about circumstantial. I don't know what the facts of this case are. MR. SCOTT: It will be more than that. UNIDENTIFIED PROSPECTIVE JUROR: Okay. MR. SCOTT: Let me give you a for instance on that. UNIDENTIFIED PROSPECTIVE JUROR: Okay. MR. SCOTT: Suppose you've got witnesses, four people that see a dog shot. UNIDENTIFIED PROSPECTIVE JUROR: Physically shot or a shot dog? MR. SCOTT: No, physically shot. UNIDENTIFIED PROSPECTIVE JUROR: Okay. MR. SCOTT: Where a man fired a gun on a piece of property that nobody else has access to. UNIDENTIFIED PROSPECTIVE JUROR: Okay. MR. SCOTT: And the dog was killed. That's the kind of circumstantial evidence I'm talking about. UNIDENTIFIED PROSPECTIVE JUROR: That's solid enough. Dabbs contends that the jury was conditioned by the appellees and the judge that one should return a verdict against the appellant. Dabbs argues that this is evident by the fact that the jury found Dabbs liable even though the appellees's four witnesses could not identify the person whom they claim shot the dog. The appellees contend that they did not violate Circuit Court Rule 3.02 as their attorney, Mr. Scott, made no attempt to have the prospective juror pledge a particular verdict based upon a particular set of facts. We agree. Circuit Court Rule 3.02, which is now embodied in Circuit Court Rule 3.05, does state in pertinent part that "[n]o hypothetical questions requiring any juror to pledge a particular verdict will be asked." However, having reviewed the record, we do not find the exchange between Mr. Scott and the prospective juror to be violative of Rule 3.05. It is clear from the record that the Mr. Scott was merely attempting to respond to a question posed by one of the prospective jurors.

The record does not indicate that Mr. Scott tried to get the prospective juror to pledge a particular verdict. We therefore find Dabbs's argument to be without merit. II. WHETHER THE PUNITIVE DAMAGE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE IN THAT THERE WAS NO IDENTIFICATION EVER MADE BY THE PLAINTIFFS OR ANY OF THEIR WITNESSES CONCERNING THE PERSON WHO ALLEGEDLY KILLED THE HUNTING DOGS AND NO GUN WAS EVER INTRODUCED INTO EVIDENCE AS HAVING KILLED THE DOGS. Dabbs contends that the meager proof put on to establish the identity of the person who killed the dogs was not sufficient to support an award of punitive damages. Dabbs correctly points out that: Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud. Miss. Code Ann.

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