IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CT-00901-SCT

JACK GRAY TRANSPORT, INC. AND ROBERT G.

McCOMAS, JOINTLY AND SEVERALLY

v.

LOIS TAYLOR AND JOE TAYLOR

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 06/22/94

TRIAL JUDGE: HON. BARRY W. FORD

COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: TOM P. CALHOUN

ATTORNEY FOR APPELLEES: W. HOWARD GUNN

RALPH E. POGUE

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED - 6/25/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/1/98

EN BANC.

SMITH, JUSTICE, FOR THE COURT:

¶1. Lois Taylor and Joe Taylor filed their personal injury action in 1990 against Jack Gray Transport

and Robert G. McComas, after a truck driven by McComas ran into the back of a car in which Lois

Taylor was a passenger. After a jury trial in March and April of 1994 solely on damages, the jury

returned a verdict of $67,000 in favor of Lois Taylor, with no award returned for Joe Taylor. The

trial court reduced the judgment by $10,000 based on a previous settlement with a co-defendant. The

trial court subsequently granted the Taylors an additur of $140,000. Jack Gray Transport and

McComas appealed. The appeal was assigned to the Court of Appeals, which reversed the additur

and reinstated the original jury verdict by a vote of 7-3. We granted the petition for writ of certiorari

filed by Lois and Jack Taylor, and after consideration find that the judgment of the circuit court,

including the additur, should be reinstated.

I.
¶2. On December 8, 1987, Lois Taylor, a passenger in the front seat of Hattie Henderson's car, was

injured when Robert McComas, a driver with Jack Gray Transport, hit the car from behind. Taylor

and her husband Joe filed suit in September 1990 in Clay County Circuit Court. The case was

eventually transferred to Monroe County when the claim against Henderson was settled for $10,000.

In April 1994 the matter was tried solely on the issue of damages. After trial the jury returned a

verdict of $67,000 for Lois Taylor and nothing for Joe Taylor on his loss of consortium claim. The

circuit court reduced the award by the $10,000 which had previously been paid in settlement. The

circuit court then granted an additur of $140,000. Jack Gray Transport appealed and the Taylors

cross-appealed.

¶3. The Court of Appeals recited the accepted case law on the subject and found that the jury had

acted within its authority in accepting or rejecting medical and expert testimony. It found that there

was "no rational basis to conclude that this resolution of conflicting evidence was the result of

anything other than proper jury deliberation." The Court of Appeals found that the circuit court's

award of the additur amounted to manifest error and reversed and reinstated the original jury verdict.

II.

¶4. The law on the subject of additurs is well-settled, and begins with Miss. Code Ann. § 11-1-55

(1991):

The supreme court or any other court of record in a case in which money damages were

awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition

of an additur or remittitur, if the court finds that the damages are excessive or inadequate for

the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that

the damages awarded were contrary to the overwhelming weight of the credible evidence. If

such additur or remittitur be not accepted then the court may direct a new trial on damages

only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the

party accepting the additur or remittitur shall have the right to cross appeal for the purpose of

reversing the action of the court in regard to the additur or remittitur.

¶5. This Court further stated, in Rodgers v. Pascagoula Public School District, 611 So.2d 942, 945

(Miss. 1992):

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 Wamble v. Mississippi State Highway Comm'n,
123 So.2d 235 (1960); see also Stanford 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. Ellis, 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).

¶6. Lois Taylor was 39 at the time of trial. She had four children between the ages of 19 and 8. As a

result of the accident Lois Taylor alleged that she suffered lacerations to her right ear and face and

chronic pain in the back of her head, neck, shoulder, back and right leg. Lois Taylor, her husband,

and several of her friends testified as to how her injuries detrimentally affected her life, preventing her

from doing housework, keeping a garden, and other physically-oriented activities. She underwent

two surgeries to remove glass from her face; several epidural steroid injections; a percutaneous

discectomy; a discogram; a chemonucleolysis procedure; a laminectomy surgery on her back; and

surgery to correct a scar on her jaw. Lois Taylor introduced evidence of $42,000 in medical

expenses. Some of these were vigorously contested by Jack Gray Transport, such as the $20,400

charged by Dr. John McFadden of Tupelo, who specialized in pain medicine, and the $5,295 by Dr.

William Brown, a neurosurgeon who operated on Taylor. McFadden performed the epidural

injections, the discogram and the percutaneous discectomy; Brown did the chemonuclelysis and the

lumbar laminectomy surgery.

¶7. Dr. Charles Currie, a neuroradiologist who testified as an expert for Jack Gray Transport,

reviewed Lois Taylor's lumbar x-rays after the accident and found them normal; reviewed a CAT

scan of her spine and found a mild central bulge of disc L4, 5 which did not result in nerve root

compression or significant narrowing of the canal; found no disc herniation; identified the discogram

as an obsolete medical procedure which he had never performed and no one at the North Mississippi

Medical Center had privileges to perform; and stated that he would not have recommended surgery

for Lois Taylor.

¶8. Taylor had dropped out of school in the 11th grade and had worked as a sewing machine

operator in garment and furniture factories. She was working as a sewing machine operator for

Twentieth Century Furniture in Okolona at the time of the accident. After the accident in question

Taylor claimed that her wages at the time of her accident had been $12,971 annually. Taylor alleged

that she had lost wages of $82,000 from the date of the accident to trial. She further alleged that she

could no longer do her job because it required sitting for long periods of time and then lifting bundles

of fabric which weighed up to fifty pounds, which the pain caused by her back condition prevented

her from doing. Twentieth Century Furniture closed down in 1991. Taylor stated that she had filled

out applications at unemployment offices in West Point and Aberdeen and various area employers

and had not heard from them, allegedly because of her physical condition. Dr. Shull, an economist,

testified that Taylor had a 22.9 year expected work life and estimated her lost total income at $297,

000. Dr. Thomas, a rehabilitation counselor, testified that Taylor had a reduction in earnings capacity

of 80 percent.

¶9. The Court of Appeals in reversing the lower court stated, "The fact that the jury apparently chose

to accept some witnesses' testimony over others does nothing to demonstrate bias, passion, or

prejudice on the part of the jury. The verdict indicates the jury either rejected certain evidence or
substantially discounted it in arriving at a verdict. There is no rational basis to conclude that this

resolution of conflicting evidence was the result of anything other than proper jury deliberation."

COA Majority at 5. The trial court is not to substitute its judgment for the collective judgment of the

jury because the compensation awarded to a plaintiff is inadequate. Neither should the Court of

Appeals or this Court substitute its judgment.

¶10. The Court of Appeals had previously remanded the case back to the trial court for the sole

limited purpose of requiring the trial judge to make specific findings of fact and conclusions of law to

support the additur. It appears to this Court that the trial judge specifically followed those directives

as the response states "[t]he jury verdict for Plaintiff's damages was extremely low verdict shocked

the conscience of the court, and indicated bias, prejudice and passion on the part of the jury."

¶11. Close examination of the record to ascertain if there is support for the trial judge's additur is

warranted. Considering Lois Taylor's $42,165 medical bill, loss of wages from the date of the

accident until the end of the trial at $82, 106.43 and her life expectancy of 22.9 years which would

account for a future income loss of $297,000, the jury verdict is somewhat suspect. Second,

considering that defense counsel admitted liability and appeared to only be contesting a limited

portion of Taylor's medical bills, and the degree of Lois Taylor's pain and suffering, the jury award is

further suspect. More importantly, considering that defense counsel emphatically instructed the jury

that it should return a verdict substantially larger than the $67,000 verdict returned, it is apparent that

more was involved here than the jury simply reaching a verdict considering the worth of testimony

and credibility of the witnesses, or rejecting certain evidence or substantially discounting it in arriving

at a verdict.

¶12. During closing argument Jack Gray Transport acknowledged liability, saying:

We are here, quite frankly, because we disagree on these damages. We told you on Tuesday,

and I'll tell you again today as Tom Calhoun told you earlier, we were negligent. We were at

fault. We never denied that we were at fault and we feel like that we owe Lois Taylor for fair,

reasonable and necessary damages as a result of what we did wrong, not necessarily what

someone else might have done wrong, but what we did wrong, and that's what the Court is

going to instruct you.

¶13. Defense counsel analyzed the evidence on damages, and while arguing that Dr. McFadden's

treatment was neither reasonable nor necessary, agreed that much of Taylor's treatment was

appropriate, that there was significant loss of earnings and that Taylor did undergo a degree of pain

and suffering. Defense counsel continued argument, saying: "You heard what we say that you should

return, $95,917.70. Now that's just not a figure pulled out of the air." Defense counsel returned to

this argument later: "I'm asking you to return a verdict for Lois Taylor for $95,917.17."

¶14. We find that there was no abuse of discretion by the circuit court in this case. When viewed

against the totality of the evidence, and under the applicable statutory and case law, the amount of

the jury's verdict was so meager as to be unreasonable and outrageous. The trial judge correctly

awarded an additur due to the jury being influenced by bias, prejudice, or passion and the fact that

damages awarded by the jury were contrary to the overwhelming weight of credible evidence.

Rodgers, 611 So. 2d at 944. We therefore find that the Court of Appeals erred in reversing the

circuit court and reinstating the jury verdict.
¶15. Lois Taylor briefly mentions two other issues raised before the Court of Appeals, that of the

admissibility of portions of Dr. Currie's testimony and the reduction of Taylor's verdict in the amount

of an earlier settlement. Because of our disposition of this case we need not reach these issues.

CONCLUSION

¶16. The trial judge correctly awarded an additur of $140,000 to the jury's verdict of $67,000

because the jury was obviously influenced by bias, prejudice, or passion and the damages were

contrary to the overwhelming weight of credible evidence. We reverse the Court of Appeals and

reinstate the judgment of the trial court.

¶17. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT

OF THE CIRCUIT COURT IS REINSTATED.

PRATHER, P.J., SULLIVAN, P.J., BANKS, McRAE, ROBERTS, MILLS AND WALLER,

JJ., CONCUR. PITTMAN, P.J., NOT PARTICIPATING.