City of Jackson, Mississippi v. Charles Williamson
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 95-CA-01072 COA
CITY OF JACKSON, MISSISSIPPI
v.
CHARLES WILLIAMSON AND BETH
WILLIAMSON
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEES
09/05/95
HON. HONORABLE JAMES E. GRAVES JR.
HINDS COUNTY CIRCUIT COURT
WILLIAM A. GOWAN, JR.
LANCE L. STEVENS
RODERICK D. WARD, III
CIVIL - PERSONAL INJURY
VERDICT IN FAVOR OF PLAINTIFF,
JUDGMENT GRANTED
AFFIRMED ON DIRECT APPEAL;
REVERSED AND REMANDED ON CROSSAPPEAL - 1/27/98
10/31/97
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The original opinion is withdrawn on a motion for rehearing and this modified opinion is substituted.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.
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