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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00330 COA ANGELA HARROD AND HUSBAND, JAMES HARROD v. ELLEN P. LOMENICK APPELLANTS

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 02/08/96 HON. GEORGE B. READY DESOTO COUNTY CIRCUIT COURT JOHN H. COCKE THAD JAMES MUELLER CIVIL - PERSONAL INJURY DENIAL OF MOTION FOR ADDITUR OR IN THE ALTERNATIVE FOR A NEW TRIAL ON THE ISSUE OF DAMAGES. AFFIRMED - 12/16/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

2/4/98

BEFORE THOMAS, P.J., HERRING, AND HINKEBEIN, JJ. THOMAS, P.J., FOR THE COURT: Angela Harrod and her husband, James, appeal a jury verdict in the amount of $20,856.95 raising the following issues as error: I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT PLAINTIFFS' MOTION FOR AN ADDITUR, OR IN THE ALTERNATIVE, A NEW TRIAL.

II. WHETHER THE VERDICT WAS SO LOW AS TO EVIDENCE BIAS, OR PREJUDICE AGAINST THE PLAINTIFFS, AND WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. III. WHETHER THE JURY VERDICT ENTERED IN THIS CAUSE IS ERRONEOUS ON ITS FACE FOR FAILURE TO AWARD ELEMENTS OF DAMAGE TO THE PLAINTIFFS AS INSTRUCTED BY THE COURT AND WHICH WERE UNCONTRADICTED AT TRIAL.

Finding no error, we affirm. FACTS On August 31, 1993, Angela Harrod and Ellen P. Lomenick were involved in an accident. The accident was the fault of Lomenick, and she stipulated to the liability at trial. The only issue to be decided at trial was the amount of damages. Angela injured her wrist in the accident. Later that evening, Angela went to the emergency room. Angela was given pain medication and sent home. Angela's pain never subsided, and she eventually went to an orthopedic clinic where she was diagnosed as having a torn ulna collateral ligament of the right hand. Approximately six weeks later, Angela had surgery to repair a small tear in the triangular fibrocartilage in her wrist. The doctor who performed the surgery on Angela testified that when she was released from his care, he thought "she had reached her maximum medical improvement at that time and did not feel further surgery would be helpful to her." The doctor gave Angela a fifteen percent partial permanent physical impairment of her right upper extremity secondary to the injury because of the loss of motion in the wrist and loss of grip strength. Angela's total medical expenses were $8,929.75. James Harrod testified that his wife's home life has changed significantly since the accident. Both James and Angela testified that she now has to bring work home in order to complete her job duties. Both also testified that Angela's relationship with her children has suffered since the accident because she is no longer able to play certain games with her children. Angela admitted that she played volleyball with her children, but that this caused her pain in her wrist. James stated that the frequence of intimacies with his wife have been cut in half since the accident. James has also since had to take on many of the household duties that his wife was once able to complete. Angela testified that she was unable to lift a skillet from the stove and also do other household chores because of her injury. However, her doctor testified through a deposition that Angela was able to exercise her wrist using a three pound weight, and the doctor concluded that it was a "little unusual" that Angela was unable to lift a skillet. Angela herself testified that she would go inner-tubing with her family which entailed her holding on to the handles of the tube while the tube was being pulled behind a boat. At the close of the evidence, it was stipulated that Angela was entitled to recover the full amount of her medical expenses and her lost wages. The jury was instructed as follows: In determining your award of damages to the Plaintiff Angela Harrod, you should include an amount for each of the following elements of damage which have been proved by a

preponderance of the evidence: 1) Medical bills in the amount of $8,929.75: 2) Mental anguish proximately caused as a result of the Defendant's negligence; 3) Pain and suffering proximately caused as a result of the Defendant's negligence; 4) Loss of wages in the amount of $1,927,20; 5) Permanent disability proximately caused as a result of the Defendant's negligence; and 6) Permanent disfigurement proximately caused as a result of the Defendant's negligence. The jury was also instructed as to James Harrod: You should return a verdict for the Plaintiff James Harrod if you find that he has suffered damages related to the loss of consortium and/or services of his wife due to injuries to Angela Harrod caused by the Defendant's negligence. The jury returned a verdict on two separate sheets of paper. On the first sheet of paper, the jury awarded Angela Harrod $8,929.75 for her medical expenses, $1,927.20 for loss of wages, and $10,000 for her pain and suffering. The total amount was $20,856.95. On the second sheet of paper, the jury awarded James Harrod $0 for his loss of consortium claim. Angela and James Harrod filed a motion for an additur, or in the alternative, for a new trial on the issue of damages only. The circuit court denied the motion. ANALYSIS I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT PLAINTIFFS' MOTION FOR AN ADDITUR, OR IN THE ALTERNATIVE, A NEW TRIAL. II. WHETHER THE VERDICT WAS SO LOW AS TO EVIDENCE BIAS, OR PREJUDICE AGAINST THE PLAINTIFFS, AND WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. III. WHETHER THE JURY VERDICT ENTERED IN THIS CAUSE IS ERRONEOUS ON ITS FACE FOR FAILURE TO AWARD ELEMENTS OF DAMAGE TO THE PLAINTIFFS AS INSTRUCTED BY THE COURT AND WHICH WERE UNCONTRADICTED AT TRIAL.

As these three assignments of error are in essence three similar standards under one issue, they will be treated under one assignment of error. Moody v. RPM Pizza, Inc., 659 So. 2d 877, 880 (Miss. 1995).

The Harrods argue that they are entitled to an additur or, in the alternative, a new trial on the issue of damages because they contend the jury failed to award Angela Harrod any amount for her disability and mental anguish. The Harrods also contend that the jury failed to consider James Harrod's loss of consortium claim. Lomenick contends that the jury verdict was proper and therefore should not be disturbed. Mississippi Code Annotated

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