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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00008 COA LINDA SPENCER v. JITNEY JUNGLE STORES OF AMERICA, INC. AND WALKER & SONS, A MISSISSIPPI GENERAL PARTNERSHIP APPELLANT APPELLEES

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: ATTORNEYS FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 6/15/95 HON. JAMES E. GRAVES, JR. HINDS COUNTY CIRCUIT COURT WILLIAM B. RAIFORD, III ALAN C. GOODMAN LAUROE R. WILLIAMS CIVIL - PERSONAL INJURY DAMAGES AWARDED TO PLAINTIFF JAMES SPENCER; MOTION FOR NEW TRIAL, OR ALTERNATIVELY, ADDITUR DENIED AS TO APPELLANT, LINDA SPENCER. AFFIRMED - 2/24/98

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

4/7/98

EN BANC. McMILLIN, P.J., FOR THE COURT: I. Preliminary Discussion Linda Spencer sought loss of consortium damages that she claimed arose out of an injury her husband, James Spencer, received in a fall at a Jitney Jungle grocery store in Fulton. The store was

operated by the defendant, Walker and Sons, and Spencer's suit named both Jitney Jungle of America and Walker and Sons as defendants. Spencer's loss of consortium claim was tried in the Circuit Court of Hinds County in the same proceeding as her husband's tort claim. The jury returned a verdict in favor of James Spencer but declined to award Linda Spencer any amount by way of loss of consortium. Linda Spencer filed a motion with the trial court for a new trial or, in the alternative, an additur; however, the court denied the motion. She then perfected an appeal to this Court, raising as her only issue a claim that the trial court committed an abuse of discretion in failing to grant her postverdict relief in the form of either an additur or a new trial. Finding no error, we affirm. II. The Form of the Verdict Because James Spencer advanced separate theories of negligence against the two defendants for his injuries, and because his own contributory negligence in the fall was an issue at trial, the jury was given a special form of the verdict. The verdict form required the jury to answer questions regarding findings as to the negligence of all three of these entities. The jury was then instructed to answer the following question: If your verdict is for the Plaintiff James Spencer, what do you find to be the total amount of his damages unreduced by any fault which you may attribute to Mr. Spencer? Next, the jury was asked to answer the following question: If your verdict is for the Plaintiff Linda Spencer, what do you find to be the total amount of her damages? The jury was then instructed to assess percentages of fault for the accident against each defendant and James Spencer. The jury, however, was not separately instructed as to the form its verdict should take if it found for James Spencer but against Linda Spencer on her loss of consortium claim. Given this limited range of options, the jury assessed James Spencer's damages at $70,000 and inserted the number 'zero' in the appropriate blank to answer the question quoted above related to Linda Spencer's claim. Despite the somewhat confusing language in the special form of the verdict, this Court interprets the jury's response to the question concerning Linda Spencer's damages as the equivalent of a defendant's verdict on her separate claim. There is, in this case, simply no principled way to distinguish between a verdict "for" the plaintiff, Linda Spencer, but assessing no monetary damage and the more traditional form of a defendant's verdict indicating that the jury found "for" the defendants. It would certainly have been preferable for the jury to have been given this option more explicitly; however, that shortcoming cannot be attributed to the jury, and it appears the jury followed the court's instructions as best it could. III. The Request for an Additur Because we consider this to be a defendant's verdict as to Linda Spencer's claim, we begin by dismissing the notion that an additur would have been appropriate in this case. Section 11-1-55 of the Mississippi Code permits a trial court to provisionally grant an additur only in "a case in which money

damages were awarded . . . ." Miss. Code Ann.

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