IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 95-CA-01072 COA

CITY OF JACKSON, MISSISSIPPI APPELLANT

v.

CHARLES WILLIAMSON AND BETH

WILLIAMSON

APPELLEES

DATE OF JUDGMENT: 09/05/95

TRIAL JUDGE: HON. HONORABLE JAMES E. GRAVES JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: WILLIAM A. GOWAN, JR.

ATTORNEYS FOR APPELLEES: LANCE L. STEVENS

RODERICK D. WARD, III

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: VERDICT IN FAVOR OF PLAINTIFF,

JUDGMENT GRANTED

DISPOSITION: AFFIRMED ON DIRECT APPEAL;

REVERSED AND REMANDED ON CROSSAPPEAL - 1/27/98

MOTION FOR REHEARING FILED: 10/31/97

CERTIORARI FILED:

MANDATE ISSUED:

BEFORE THOMAS, P.J., DIAZ, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:

The original opinion is withdrawn on a motion for rehearing and this modified opinion is substituted.

The motion for rehearing is granted.

A jury in the Circuit Court of Hinds County returned a verdict in favor of Charles Williamson in a

personal injury action which arose out of a motorcycle accident. The City of Jackson appeals on the

basis of the following issues: (1) the trial court erred in refusing to excuse a potential juror for

cause; (2) a motion in limine excluding evidence that the plaintiff was not wearing a helmet

was improperly granted; (3) the trial court erred in allowing the plaintiff to submit his medical
records to the jury under the business records exception to the hearsay rule; and (4) the trial

court erred in failing to rule as a matter of law that the plaintiff was a trespasser/licensee. On

cross-appeal, the Williamsons allege that: (1) the set-off of the settlement with the Town of

Flowood was improper; and (2) the trial court erred by failing to grant additur for the loss of

consortium claim of Beth Williamson. We affirm on direct appeal, but agree that each cross-appeal

issue requires us to reverse and remand for further proceedings.

FACTS

Charles Williamson was riding his motorcycle along an access road to a sewage metering station in

the Town of Flowood when he struck a cable and sustained severe injuries. The cable was erected by

the City of Jackson to reduce vandalism at the metering station. While the City of Jackson owns and

maintains the metering station, the access road is the property of the Town of Flowood. The City of

Jackson also has access rights to the metering station for maintenance.

Charles Williamson filed a negligence action against the City of Jackson and the Town of Flowood.

Beth Williamson, Charles's wife, joined in the suit claiming a loss of consortium. The Williamsons and

the Town of Flowood reached a settlement in the amount of $17,500.

Following a trial in the Circuit Court of Hinds County, the jury awarded Charles Williamson $102,

500, which included a fifty-five percent reduction for his comparative negligence. The jury did not

award Beth Williamson anything for her loss of consortium claim.

DISCUSSION

1. Failure to Excuse a Juror for Cause

On appeal, the City of Jackson asserts that the trial court committed reversible error by failing to

excuse a prospective juror, John Robinson, for cause from the jury panel. Because of the trial court's

refusal, the City was required to expend a peremptory challenge on Robinson. The City contends that

the trial court violated its duty to insure the selection of a fair and impartial jury because of its refusal

to sustain the City's challenge for cause of Robinson.

During voir dire, Robinson expressed concerns about his ability to serve impartially on the jury.

Robinson stated that his son was involved in an automobile accident, and thus he had a degree of

empathy toward the plight of the plaintiff. Following further questioning, Robinson stated that he

could be "fair as far as his ability." The City of Jackson moved to strike Robinson for cause based

upon his past experience. The trial court denied the City's request. Subsequently, the City struck

Robinson from the jury panel by using its third peremptory challenge.

In a civil action before a twelve-member jury, each party may exercise four peremptory challenges.

M.R.C.P. 47(c). Although a party may lose a peremptory challenge, it does not necessarily constitute

a denial of the constitutional right to an impartial jury. The prerequisite to presentation of such a

claim is a showing that "the defendant had exhausted all of his peremptory challenges and that the

incompetent juror was forced to sit on the jury by the trial court's erroneous ruling." Mettetal v.

State, 602 So. 2d 864, 869 (Miss. 1992); Chisolm v. State, 529 So. 2d 635, 638 (Miss. 1988). The

City of Jackson cannot make such a showing here because it did peremptorily strike Robinson and
never exercised its remaining peremptory challenge.

This assignment of error is without merit.

2. Exclusion of Evidence

The City of Jackson's next assignment of error is that the trial court improperly granted the

Williamsons' motion in limine as to Williamson's failure to wear a helmet. The City argues the

evidence was relevant to show an overall disregard for safety. Furthermore, the City asserts that

Williamson's failure to wear a helmet constitutes negligence per se, and thus the City was entitled to

such a jury instruction.

Evidentiary rulings are within the broad discretion of the trial judge and will not be reversed absent

an abuse of discretion. Sumrall v. Mississippi Power Co., 693 So. 2d 359, 365 (Miss. 1997). There

is no evidence to support the City's proposition that Williamson's failure to wear a helmet proximately

caused or contributed to his injuries. Although Williamson suffered severe intestinal and pelvic

injuries, he did not suffer any trauma to his head. Williamson's failure to wear a helmet was not

relevant, and hence the trial court was correct in excluding such evidence. See M.R.E. 402.

The City argues that Williamson's failure to show proper regard for his own safety is also evidence of

a general carelessness, which if explained to the jurors might have caused them to allocate more or all

of the fault to him. Had the City offered a better predicate for the evidence, the judge's exercise of

discretion might more concretely have been reviewed. For example, is there reasonable expert

opinion that those cyclists who fail to wear a helmet are more careless, as opposed just to being more

libertarian? Based on this record, we find no abuse of discretion in excluding evidence that was of

such questionable relevance.

The City also contends that Williamson's failure to wear a helmet was in violation of § 63-7-64 of the

Mississippi Code and therefore constituted negligence per se. Consequently, the City maintains that

the trial court should have granted an instruction informing the jury of negligence per se. However, in

order for the doctrine of negligence per se to apply, a party must establish that "[1] he is a member of

the class that the statute was designed to protect and that [2] the harm he suffered was the type of

harm which the statute was intended to prevent." Thomas v. McDonald, 667 So. 2d 594, 597 (Miss.

1995)(numbers added).

The statute was designed to increase the safety of motorcycle riders and perhaps to reduce

compensation for head injuries that would be owed by those who proximately contributed to an

accident. The City was not within either class. As to the second prong for proving negligence per se,

the statute was designed to reduce head injuries. No such injuries were alleged. The City thus cannot

establish either prong of negligence per se.

3. Admission of Medical Records

The City's next assignment of error is that the trial court improperly admitted Williamson's medical

records into evidence. On appeal the City argues that the records should have been authenticated by a

custodian of the records. That is not what was argued below.

During direct examination of Williamson, his counsel attempted to admit medical records from the
hospital. The City of Jackson objected on the grounds that the records constituted hearsay. Following

a bench conference, the trial court, in an effort to clarify the objection to the plaintiff's attorney,

emphasized that the City's objection was not based on authenticity and that the City conceded

authenticity. The trial court overruled the City's objection and admitted the medical records into

evidence.

A party cannot put a trial court judge in error on a matter which was not presented to him for

decision. Ponder v. State, 335 So. 2d 885, 886 (Miss. 1976). Accordingly, a party may not raise a

new objection on appeal which is different from a specific objection considered and denied by the trial

court. The failure to raise such an objection is deemed a waiver by the party. Davis v. Singing River

Elec. Power Ass'n, 501 So. 2d 1128, 1130-31 (Miss. 1987). That is all the more true when the trial

judge expressly stated that his understanding of the objection was that it did include a certain

argument; the objecting party made no correction at that time; on appeal that is the very point the

party raises.

Authenticity is not a frivolous issue. Had the City informed the trial court that this was the basis of

their objection instead of leaving uncorrected the trial court's statement that this was not the basis of

their objection, the issue would properly have been joined for our review on appeal. On this record,

however, the City waived the authenticity objection to the admission of the medical records.

4. Standard of Care

The trial court instructed the jury to determine whether Williamson was a public invitee or a licensee

whose presence was known by the City. On appeal, the City of Jackson asserts as a threshold issue

that they should not be judged by the requirements applicable to a landowner, as the City of Flowood

owned this property. The City also alleges that the trial court erred in failing to rule, as a matter of

law, that Williamson was a trespasser/licensee and that the construction of the cable could at most

constitute negligence.

A visitor's status governs the standard of care that a landowner owes him. "An invitee is a person

who goes upon the premises of another in answer to the express or implied invitation of the owner or

occupant for their mutual advantage. A licensee is one who enters upon the property of another for

his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner,

whereas a trespasser is one who enters upon another's premises without license, invitation, or other

right." Skelton v. Twin County Rural Ass'n, 611 So. 2d 931, 936 (Miss. 1992).

A landowner owes an invitee the duty of ordinary reasonable care. Clark v. Moore Mem'l United

Methodist Church, 538 So. 2d 760, 764 (Miss. 1989). A less burdensome duty applies when the

party is a licensee or a trespasser -- the owner of the premises must simply refrain from willfully or

wantonly injuring the party. Astleford v. Milner Enter., 233 So. 2d 524, 525 (Miss. 1970).

However, the supreme court has recognized an exception to the general duty owed to a licensee. A

landowner is held to a higher standard when he engages in active conduct and the licensee's presence

is known to him. In such a situation, the legal distinction between an invitee and a licensee has little

significance and the landowner is required to use ordinary reasonable care. Adams v. Fred's Dollar

Store, 497 So. 2d 1097, 1101 (Miss. 1986).

In this case, the trial court instructed the jury to determine whether Williamson was an invitee or a
licensee whose presence was known by the City. If the jury found that Williamson was an invitee or

that kind of licensee, the court instructed the jury to ascertain whether the City was negligent in

erecting the cable across the road. That was a correct set of instructions. However, if the jury found

that Williamson was not an invitee or that kind of licensee (which would mean he was a licensee

whose presence was not known), the court instructed the jury to decide if the actions by the City

were willful and wanton. That too was an accurate statement of the law. The jury concluded that

Williamson was an invitee or a licensee whose presence was known by the City, and that the City's

actions were negligent. Though that should have stopped the jury's question answering, they went on

to answer that the City's conduct was willful and wanton.

The City had rights in the premises, including the rights of ingress and egress. Furthermore, the City

obtained the right to construct a barricade on the property. By erecting a barrier across the access

road, the City engaged in active conduct on the property. In light of these rights and this activity on

the property, the City of Jackson owed the same duty to others relative to its actions as would a

landowner.

The City admitted that Williamson was either a licensee or an invitee. While it is difficult to conclude

that Williamson was an invitee -- this was not a public park, but was instead service property that was

not open for general public use -- the jury did not stray beyond the evidence in finding that people

such as Williamson were licensees whose presence was known. Consequently, a simple negligence

standard was applicable to the City's conduct. The jury reasonably determined that the City had

placed this cable across a previously accessible road without adequate warnings in the form of signs

or sufficient reflectors or ribbons on the cable. That the jury believed that this constituted negligence

was also within its prerogative.

We affirm the finding of liability.

CROSS-APPEAL

1. Improper Set-Off

On cross-appeal, the Williamsons contend that the trial court used the incorrect formula to reduce the

jury's award of damages by the amount of the previous settlement with Flowood.

The calculation to make in these circumstances has recently been clarified by the supreme court.

McBride v. Chevron U.S.A., 673 So. 2d 372, 381 (Miss. 1996). The court adopted the "settlementfirst method," which it considered a fairer result than the "fault-first" method. Under the settlementfirst approach, the settlement is deducted from the gross damages found by a jury, without any initial

reduction for the portion of fault that the jury assigns to the plaintiff. That difference is then

multiplied by the defendant's percentage of fault. Id. at 376. The correct formula is this:

(total damages - settlement) x (defendants' percentage of fault), not

(total damages x defendants' percentage of fault) - settlement.

In the present case, the trial court instructed the jury to determine the sum of money that would fairly

and adequately compensate Williamson. The form of verdict did not have a blank to indicate that

total amount. The jury was then to determine the proportion of Williamson's negligence in relation to
the negligence as a whole. Upon finding the proportion of Williamson's negligence, the jury was

instructed to multiply that percentage by the sum of money that the jury found to fairly and

adequately compensate Williamson. The jury was directed to subtract the result of the multiplication

from the original sum of compensation for Williamson. It is only that last damage figure for which

there was a blank for a dollar amount on the verdict form.

The jury returned a verdict finding that Williamson was fifty-five percent at fault for his injuries,

while the City of Jackson was found to be forty-five percent at fault. The jury held that Williamson

suffered $102,500 in damages. That figure represented the total damages reduced by Williamson's

own negligence. Following the trial, the trial court granted the City's motion to reduce the $102,500

by the amount of $17,500, which was the amount of the settlement by the Town of Flowood. The

trial court entered a judgment in favor of Williamson for $85,000. The trial court in fact used the

formula that the supreme court in McBride said should not be used.

The settlement-first method is applicable. The jury found that Williamson's net damages amounted to

$102,500, which included a fifty-five percent reduction for Williamson's negligence. To apply the

settlement-first approach, we must first determine the gross damages prior to the reduction for

Williamson's negligence. To reach a damages amount of $102,500, the jury would have determined a

total amount of damages ($Y), and multiplied it by the City's fault (.45). That can be represented this

way: $Y x .45 = $102,500. Thus $Y = $102,500 / .45, or $227,777.78.

The parties agree that the approximate $228,000 amount must have been the original damages

amount if the jury followed its instruction. More likely it was some other amount, like $225,000, and

after the reduction for Williamson's negligence the resulting amount was rounded to $102,500.

Under the settlement-first approach required by McBride, the trial court should have deducted the

settlement figure of $17,500 from the approximate $228,000 and then reduced that amount by

Williamson's 55% fault.

($227,777.78-$17,500) x .45 = $94,625.

The trial court determined instead that the City should pay $85,000. We remand the judgment so that

the trial court may enter a new judgment for the correct amount, subject to any party's right to object

to the accuracy of our calculating -- but not to our formula.

2. Loss of Consortium

Beth Williamson also asserts that the trial court erred by failing to grant an additur on her claim for

loss of consortium. Although the jury awarded a substantial verdict in favor of Charles Williamson,

the jury did not award Beth Williamson anything on her consortium claim. Our issue, as stated by the

supreme court in another case in which a jury awarded no consortium damages, is "whether the

verdict is against the overwhelming weight of the evidence and credible testimony and therefore

should be set aside." Alldread v. Bailey, 626 So. 2d 99, 101 (Miss. 1993).

The Mississippi Code provides that "[a] married woman shall have a cause of action for loss of

consortium through negligent injury to her husband." Miss. Code Ann. § 93-3-1 (Rev. 1994). In an

effort to preclude the possibility of double recovery, the supreme court held that a wife may not
recover for the loss of financial support by the husband, for pain and suffering of the husband, or for

nursing services even if provided by the wife. Tribble v. Gregory, 288 So. 2d 13, 17 (Miss. 1974).

The court concluded that the husband, and not the wife, could recover these items in a suit by him

against the tortfeasor. Id. Thus, the right of recovery by the wife is limited to loss of society and

companionship, conjugal rights, and physical assistance of the husband. Id.

The supreme court in Alldread held that there is no automatic inconsistency when a jury awards

damages to an injured spouse and finds no damages for a loss of consortium by the other spouse.

Alldread, 626 So. 2d at 103. "Reversal occurs only where the facts presented are so overwhelming

in the appellant's position that reasonable jurors could not have found for the appellee." Thompson

Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 151-52 (Miss. 1997). Our issue is to determine

whether the evidence here is overwhelming.

Charles Williamson testified that he was unable to perform his normal household responsibilities, and

therefore his wife had to assume all of the domestic activities. Charles stated that Beth, who

previously worked full-time, could only work part-time. Beth Williamson stated that she suffered a

great deal following the accident. She (1) went to the hospital every day before and after work to

take care of Charles's incisions. After Charles was released from the hospital, Beth stated that she had

to perform the following duties: (2) change Charles's dressings, (3) bathe and help him to the

bathroom, (4) change the sheets on the bed, (5) prepare the meals, (6) empty the garbage, (7) pick up

limbs in the yard, and still (8) tend to the children. In addition to these responsibilities, Beth also

described an incident where (9) she had to chase and catch a squirrel which entered the attic. Lastly,

the Williamsons testified (10) that their sex life suffered as a result of the accident.

First, any damages that would fit under the category of "nursing services" are not recoverable by the

non-injured spouse. As already discussed, that is part of the damages that may only be sought by the

injured spouse. Tribble, 288 So. 2d at 17. Thus items 1, 2, 3 and arguably 4 would fall under that

category.

As to the remaining damages, the Williamsons argue that their evidence is unrebutted and that

therefore some damages had to be awarded. What properly went to the jury on Beth Williamson's

consortium claim was her testimony that she had extra duties as a result of the accident consisting of

preparation of meals, emptying the garbage, picking up limbs in the yard, tending the children, and

chasing a squirrel from the attic. She also testified that she had stopped working full-time and began

working part-time. When her husband was asked if that was a change resulting from the accident, he

stated that he did not know when the change occurred. Based on the evidence in the record, no

damages for that would have been proper. Lastly, the Williamsons testified that their sex life suffered.

The supreme court has addressed the argument that consortium testimony, which frequently is

unrebutted since it concerns private household activities, must be accepted:

Mr. Alldread would have this Court consider only the direct testimony of himself and his wife,

and then accept his claim the evidence was uncontradicted. Mr. Alldread fails to consider

however his and his wife's testimony on cross-examination. The jury had the opportunity to hear

and weigh the elements of the consortium claim both by direct and cross-examination

testimony, and soundly rejected damages allegedly proven by Mr. Alldread, as non-existent.
Alldread, 626 So. 2d at 103. There was no meaningful cross-examination of Mrs. Williamson by the

City. However, Mr. Williamson was cross-examined to some degree by the City regarding his

testimony that he could not do any house-hold chores. He acknowledged that he reached a point at

which he could perform basically all the tasks that he could before the accident, and that his return to

that condition gradually occurred during his recovery. A fact question definitely was left of the length

of time of the disability. To the extent Mr. Williamson's statements about not being able to perform

his chores is the obverse of Mrs. Williamson's testimony that she had to assume them, the crossexamination of one witness raises questions about both. Alldread did not describe the crossexamination that occurred there. Presumably, cross-examination that raises doubts about some

aspects of the claim may properly leave doubts about all.

The supreme court more directly discussed this question when it stated that even when "[t]here is no

evidence on the issue of consortium damages except the testimony of [the spouse] herself," that the

"jury was free to disbelieve her." Id. at 102 (quoting Anderson v. Mutert, 619 S.W. 2d 941, 945

(Mo. App. 1981)).

The general description of a jury's duty with regard to "undisputed evidence" is this:

Uncontradicted or undisputed evidence should ordinarily be taken as true by the triers of facts.

More precisely, evidence which is not contradicted by positive testimony or circumstances, and

is not inherently improbable, incredible or unreasonable cannot be arbitrarily or capriciously

discredited, disregarded, or rejected even though the witness is a party interested; and unless

shown to be untrustworthy, is to be taken as conclusive, and binding on the triers of fact.

Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So. 2d 69, 75 (1951) (opinion on rehearing)

.

The stated rule has a host of qualifiers: evidence cannot be "contradicted" by "circumstances," cannot

be "improbable," and cannot be "untrustworthy." Cross-examination that raises questions about any

part of the testimony could be said to cause the remainder to be untrustworthy, invoking the hoary

phrase falsus in uno, falsus in omnibus, or "false in one respect, false in all." A charge to the jury

cannot be based on this reasoning because it would be an improper comment on the weight of the

evidence. Metropolitan Life Ins. Co. v. Wright, 190 Miss. 53, 62, 199 So. 289 (1940). Beyond the

instruction issue, the underlying logic of falsus in uno has been criticized. M. & A. Motor Freight

Lines v. Villere, 190 Miss. 848, 857, 1 So. 2d 788 (1941). Regardless, if the jury has reasonable

grounds to believe that a witness has knowingly made material and false statements, that at least

raises credibility questions about remaining testimony that may not otherwise be doubtful.

All of this sheds light on what the supreme court means by "uncontradicted" evidence.

In examining all the consortium testimony, it is difficult to conclude that any of it was impeached in

the manner required by the Lucedale Veneer standard. The jury properly could have wondered what

length of time Mrs. Williamson had to assume her husband's household chores, and had questions

about the imprecise nature of almost all of it. Even so, the core claim of consortium damage was

proven by positive and unimpeached evidence, and under the quoted standard it had to be accepted.

It is true that the Alldread court in dicta stated that a jury was free just to disbelieve a witness.

Alldread, 626 So. 2d at 102. Without a clearer and controlling statement, we read that in the context
of there needing to be a basis to disbelieve. There is heightened potential both for self-serving and for

uncontradicted testimony on consortium damages. We are particularly aware of that potential when a

claim can be based on decline of sexual relations, and that claim is based solely on the spouses'

testimony. Yet in the past the self-interest of a witness has not been a sufficient basis just not to

accept testimony. Lucedale Veneer, 53 So. 2d at 75.

Mrs. Williamson had the right to recover for any proven loss of society and companionship, conjugal

rights, and physical assistance of her husband. Tribble, 288 So. 2d at 17. Her argument unavoidably

leads to the conclusion that she was entitled to a peremptory instruction that some amount of

damages had to be awarded. Granting such an instruction is perilously close to ignoring the dictates

of Alldread. However, the proposition that seems best to express the Alldread rule is "that not every

verdict against the non-injured spouse claiming a loss of consortium is inconsistent as a matter of law

with a verdict in favor of the injured spouse." Alldread, 626 So. 2d at 102. The implication is that

some verdicts are inconsistent.

What we are not saying bears, well, saying. Consortium damages are not justified in every case.

Alldread clearly establishes that. A peremptory instruction is not proper just because the only

testimony is from those claiming the loss, even if no retraction on the witness stand is secured

through cross-examination. In fact, the Lucedale Veneer description of evidence that has to be

accepted is so qualified that it would be a bold step ever to grant a peremptory instruction on

consortium. On these facts, we are holding that consortium damages in some amount, for the limited

items of the claim that we have described, had to be awarded.

What value to give the loss of spousal assistance is initially for a jury. In other areas of damage law, if

the injury is considered sufficiently minor the damages awarded can be nominal. With all deference to

the plaintiffs, asking a jury to place a value on a consortium claim that consisted of picking up

branches in the yard and scaring a squirrel from an attic could by some jurors be put in the nominal

category. There is, of course, more than those items left in the Williamson claim.

Drawing every permissible inference from the evidence that would support the verdict, and noting

that the jury alone is entitled to decide the credibility of witnesses, we find that some amount of

damage for the loss of consortium had to be awarded. A trial just on that claim would be proper. The

evidence may be different in a new trial: the plaintiff may have firmer evidence; the City may have

more extensive cross-examination. What we have said here applies to the evidence from the first trial,

and its application to the evidence at any new trial is for the circuit court to determine.

MOTION FOR REHEARING

The City of Jackson filed a motion for rehearing asserting that as a political subdivision it is not

subject to liability for interest or statutory damages on the judgment. We agree.

The supreme court addressed a similar issue in determining that an incorporated municipality was

exempt from the general rule requiring than an appellant deposit court costs in order to perfect its

appeal. City of Mound Bayou v. Roy Collins Constr. Co., 457 So. 2d 337, 340-43 (Miss. 1984).

Even with the then-potential, now-effective voiding of judicial sovereign immunity, the court held

that the "public policy underpinnings" remained to support the government's exemption from the rule

requiring private litigants to pre-pay costs. Id. at 340.
Legislative-created governmental immunity has totally replaced judicial sovereign immunity. Wells v.

Panola County Bd. of Educ., 645 So. 2d 883, 888-889 (Miss. 1994). Immunity continues for

governmental subdivisions except as waived by statute. Miss. Code Ann. §§ 11-46-3 & 11-46-5

(Supp. 1997). That is similar to the manner in which judicial sovereign immunity operated, as the

court held that "no political subdivision may be required to respond in judicial proceedings except as

has been expressly authorized by law." City of Mound Bayou, 457 So. 2d at 340.

Neither Section 11-3-23 (15% damages) nor Section 75-17-7 (interest) of the Mississippi Code

specifically refers to political subdivisions. Though dicta, there is a statement in City of Mound

Bayou that under judicial sovereign immunity "statutory damages may not be assessed on appeal

where a judgment against a political subdivision is affirmed." Id. at 340. The authority for the

proposition was a case that interpreted the predecessor to the present statute that assesses 15% of

the trial court award as damages after affirmance on appeal. Rankin County v. Wallace, 233 Miss.

280, 305-307, 103 So. 2d 6, 7-8 (1958), interpreting 1942 Miss. Code § 1971 (5% of judgment),

recodified 1972 Miss. Code Ann. § 11-3-23. The supreme court did not find in the statute a sufficient

basis to impose this damage award against a political subdivision.

The 15% "damages" can be seen as a penalty when an appellate court determines that nothing that

the trial court did requires correcting. That is a charge added to the original judgment for which

specific authority is required, and we find none. On the other hand, interest is nothing more than the

time-value of money. Allowing a governmental subdivision to avoid the payment of interest during

the delay in satisfying a money judgment permits such a defendant to pay less after an appeal than

was awarded in the trial court. Appellate rule 37 does not specifically refer to governmental bodies as

being liable for interest on judgments. M.R.A.P. 37. However, any statute or rule that allows suit

against a governmental body could be read as necessarily allowing interest on a judgment at a

reasonable, non-punitive rate until paid, since that permits the damages awarded to be paid in full.

Despite this view, we find that the supreme court has as recently as the 1984 Mound Bayou case

stated that interest on a judgment is not assessable against a governmental subdivision. 457 So. 2d at

340. We adhere to that pronouncement, but encourage its reconsideration.

The legislature may have intended to permit interest in some circumstances by stating that "no

judgment against a governmental entity . . . shall include an award for . . . interest prior to judgment .

. . ." Miss Code Ann. § 11-46-15 (2) (Supp. 1997). It is the implication of that statement, not

explicit language as required under the cited case law, that might allow post-judgment interest.

Costs of appeal may be awarded against political subdivisions. M.R.A.P. 36(b).

The Court's original mandate is modified to delete the statutory damages and interest award.

THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED ON

DIRECT APPEAL. THE JUDGMENT IS REVERSED AND REMANDED ON CROSSAPPEAL FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS ARE

ASSESSED TO THE APPELLANT.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING,

HINKEBEIN, KING, AND PAYNE, JJ., CONCUR.