        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CA-00934-COA

DANIEL ANDERSON                                                           APPELLANT

v.

JEROME SALAAM AND TRI-STATE                                                APPELLEES
EXPEDITING SERVICES, INC.

DATE OF JUDGMENT:                         04/13/2018
TRIAL JUDGE:                              HON. JOHN KELLY LUTHER
COURT FROM WHICH APPEALED:                CHICKASAW COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   MARK T. FOWLER
ATTORNEYS FOR APPELLEES:                  LEWIS W. BELL
                                          ROBERT H. PEDERSEN
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 09/24/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.

       C. WILSON, J., FOR THE COURT:

¶1.    Daniel Anderson filed this civil action against Jerome Salaam and Salaam’s employer,

Tri-State Expediting Services Inc. Anderson alleged that Salaam, while acting as an agent

or employee for Tri-State, negligently caused an automobile accident on August 31, 2012,

just outside of Okolona, Mississippi. As a result of the accident, Anderson alleged damages

of $16,578.36 for medical bills, $27,000 for lost wages, and unspecified damages for pain

and suffering.

¶2.    On August 5, 2018, a Chickasaw County jury allocated 25% fault to Salaam and Tri-

State and 75% fault to Anderson and determined that Anderson suffered $9,000 in total
damages. On April 13, 2018, the Circuit Court for the Second Judicial District of Chickasaw

County entered a final judgment and ordered Salaam and Tri-State to pay Anderson $2,250

($9,000 x 25%) based on the jury’s verdict allocating 25% fault to Salaam and Tri-State. On

April 18, 2018, Anderson moved for a judgment notwithstanding the verdict, for an additur,

or, alternatively, for a new trial. The circuit court denied Anderson’s post-trial motion on

June 4, 2018, and on June 26, 2018, Anderson filed a notice of appeal from the final

judgment and from the circuit court’s denial of his post-trial motion. Aggrieved with the

amount of the jury’s damages award, Anderson raises two issues on appeal, which we will

encompass in one: whether the trial court abused its discretion in denying his motion for an

additur or alternatively, for a new trial.1

¶3.    After a thorough review of the record, we affirm the circuit court’s denial of

Anderson’s post-trial motion.

                                              FACTS

¶4.    The facts of this case originate from an automobile accident on August 31, 2012,

involving Anderson and Salaam on Highway 32 just outside of Okolona, Mississippi. At the

time of the accident, Anderson worked for Orkin. Anderson and his passenger, Orkin

employee Steven Tracey, were driving Anderson’s Orkin-owned pickup truck eastbound on

Highway 32. Anderson had missed his next customer’s location and was looking for a place

to turn around. Salaam, carrying a trailer full of furniture behind an 18-wheeler under lease



       1
         Because Anderson does not actually challenge the sufficiency of the evidence in
either his post-trial motion or his appellate brief, we restrict our analysis to whether the trial
court erred in denying his motion for an additur or alternatively, for a new trial on damages.

                                                2
from Tri-State, had been following Anderson eastbound on Highway 32 since he left his last

checkpoint in Houston, Mississippi. As Anderson attempted a left turn, the front-right

(passenger) side of Salaam’s truck collided with the left side of Anderson’s truck just behind

the driver’s door. Anderson’s truck came to rest in the private drive on the north side of

Highway 32. Salaam’s cab came to rest in the westbound lane of Highway 32. Salaam’s

trailer sprawled both the westbound and eastbound lanes of the highway.

¶5.    Anderson alleged that Salaam, while acting as an agent or employee for Tri-State,

negligently caused the automobile accident, resulting in bodily injuries and damages to

Anderson. Salaam and Tri-State conversely alleged that Anderson’s negligence proximately

caused and/or contributed to the automobile accident.

       Liability Evidence

¶6.    At trial, Anderson relied on testimony from Salaam and Mississippi Highway Patrol

investigating officer Wesley Kelley to contend that Salaam caused the accident when he

attempted to pass Anderson in a no-passing zone. Officer Kelley’s accident report indicated

that Salaam violated the rules of the road by improperly attempting to pass and overtake

Anderson’s vehicle, based on Officer Kelley’s finding that Salaam’s tractor-trailer came to

rest across the solid yellow center line of Highway 32. In contrast, Salaam repeatedly denied

that he attempted to pass Anderson’s vehicle and stated that he only moved into the no-

passing zone in an attempt to avoid a collision with Anderson’s vehicle. Salaam also stated

that he believed Anderson was driving erratically.

¶7.    Anderson also relied on testimony from accident reconstruction expert Jason Walton.



                                              3
Anderson retained Walton to develop the liability theory that Salaam had attempted to

improperly pass Anderson in a no-passing zone. Walton, however, actually contradicted

Anderson’s “improper passing” theory. Based on his extensive experience as an accident

reconstruction expert, Walton opined (1) that Salaam was not trying to pass or overtake

Anderson; (2) that Officer Kelley incorrectly indicated on his accident report that Salaam was

trying to pass Anderson; and (3) that instead, the accident occurred because Salaam was

following too closely to avoid hitting Anderson’s vehicle. While Walton concluded that

Anderson did not cause the accident, he qualified his opinion on the assumption that

Anderson was not distracted while using a cellphone at the time of the accident.2

¶8.    Salaam and Tri-State relied on Salaam’s testimony and the testimony of witness

Steven Tracey to contend that Anderson negligently caused the accident when he signaled

to make a right turn before abruptly turning left. Salaam testified that just before the

accident, Anderson nearly slowed to a complete stop, signaled right to turn into a driveway

on the eastbound side of the road, then suddenly turned left. According to Salaam, he moved

into the westbound lane of Highway 32 to avoid Anderson upon Anderson’s slowing and

signaling a right turn. Salaam further testified that he could see Anderson holding and using

a cellphone just prior to and during the accident. Tracey, who was riding with Anderson

when the accident occurred, disputed Anderson’s testimony that Tracey was asleep prior to

       2
         At trial, both parties introduced evidence that the other was on his cellphone at the
time of the accident. Although Salaam testified that “[he] never talk[s] on [his] phone in any
vehicle,” he admitted that he was on his commercial headset—which, by law, “commercial
contractors . . . are allowed to use” while driving—prior to the accident. Anderson
unequivocally denied that he was on his cellphone at any time, but his passenger, Steven
Tracey, contradicted Anderson on this point.

                                              4
and leading up to the time of the accident. Tracey testified that prior to the accident, he and

Anderson were looking for directions and had concluded that they had missed their turn.

Tracey also stated that Anderson was in fact on his cellphone, and that while on the

cellphone, Anderson abruptly made a left turn to turn around.

¶9.    After hearing the trial testimony and evidence, the jury unanimously found that both

Anderson’s and Salaam’s negligence proximately caused the accident. The jury allocated

25% fault to Salaam and Tri-State and 75% fault to Anderson.

       Damages Evidence

¶10.   Anderson testified that at the time of the accident, he hit his head against the glass,

but that the impact was not hard enough to break the glass, to cause bleeding, or to knock

him out. He described his mental and physical state as being “on an adrenaline rush,” and

he neither reported nor complained of any injuries to Officer Kelley, who testified that

Anderson seemed uninjured. At the scene of the accident, Officer Kelley neither called an

ambulance nor reported an injury in the accident report. Around midnight the day of the

accident, however, Anderson presented to the emergency room because he “started just

tightening up and tensing up to the point [he] could not move at all.”

¶11.   Anderson received the following treatment as a result of the August 31, 2012 accident:

 09/01/2012 Dr. Gallaher at the North Mississippi Medical Center diagnosed cervical
            strain and restricted Anderson to lifting no more than 25 pounds for four
            days. X-rays showed no fractures, dislocations, or destructive bone
            processes.




                                              5
09/03/2012 Either Dr. Bolten or Dr. Shafer at the North Mississippi Medical Center
           ordered a CT scan of Anderson’s cervical and thoracic spine, which showed
           no acute traumatic changes in the thoracic spine. The treating physician
           diagnosed back muscle spasm and cervical strain, prescribed pain
           medications, and ordered two days’ work restrictions.
09/04/2012 Dr. Bell at Family & Urgent Care Clinic diagnosed thoracic and cervical
           strain and prescribed medications.
09/10/2012 Dr. Bell diagnosed cervical and thoracic strain and continued medications.
09/17/2012 Dr. Bell diagnosed thoracic strain and spasm and continued medications.
09/25/2012 Dr. Bell diagnosed thoracic strain, continued medications, and ordered a
           referral.
10/05/2012 Dr. Mitias saw Anderson upon referral from Dr. Bell. Dr. Mitias noted that
           Anderson did not take his pain medications, that x-rays showed no fractures,
           and that the diagnosis was cervical strain. He prescribed therapy for two
           weeks, administered anti-inflammatory injections, and released Anderson
           to work full-time with light duty.
10/16/2012 Dr. Mitias reviewed Anderson’s cervical spine MRI report which showed
           no pathology that correlated with Anderson’s symptoms. Dr. Mitias
           diagnosed muscle sprain or strain, prescribed medications for muscle spasm
           and inflammation, and ordered continued therapy for two weeks.
10/30/2012 Dr. Mitias noted that Anderson’s condition had improved by 85% and
           ordered two weeks of physical therapy.
11/13/2012 Dr. Mitias injected occipital blocks and steroids for muscular neck pain.
11/20/2012 Dr. Mitias concluded that Anderson could return to work full-time without
           restrictions because diagnostic studies were normal, and because Dr. Mitias
           could find nothing objectively to support Anderson’s pain complaints. Since
           Dr. Mitias could do nothing more to combat Anderson’s injuries, he referred
           Anderson to a neurosurgeon—Dr. Brophy—for a second opinion.
12/04/2012 Dr. Brophy concluded that Anderson did not require surgery and that
           Anderson’s condition had improved by 90%. Dr. Brophy released Anderson
           with no work restrictions effective December 5, 2012.
09/06 -    In total, Anderson attended physical therapy 24 times over nine weeks and
11/12/2012 four days at Crossroads Rehab Services, Inc.




                                          6
¶12.   After December 4, 2012, Anderson did not seek further medical treatment for any

injury relating to the accident. Although he was temporarily disabled from August 31, 2012,

to December 4, 2012, Anderson suffered no permanent physical impairment from the

accident.

¶13.   At trial, Anderson alleged $16,578.36 in medical bills resulting from injuries sustained

in the accident and lost wages totaling $27,000. As proof of pain and suffering, Anderson

offered his testimony, his wife’s testimony, his treating physician Dr. Mitias’s testimony, and

his medical records, which reflected treatment for physical pain in his neck and back. At

trial, Anderson acknowledged that he sustained no disc injuries, nerve injuries, or broken

bones, and he confirmed that all of the treatment he received related to muscle injury.

Anderson’s wife corroborated Anderson’s testimony with regard to his pain and suffering.

Dr. Mitias, via deposition testimony, recounted Anderson’s treatment history, and testified

to a reasonable degree of medical probability that (1) Anderson suffered a temporary period

of disability during his treatment period; (2) Anderson would not suffer any permanent

physical impairment as a result of the accident; (3) the accident caused the pain; and (4) that

his services in the amount of $1,853.36 were both necessary and reasonable under the

circumstances. Dr. Mitias further testified that based on his medical experience, he would

expect Anderson’s pain eventually to fully improve. Dr. Mitias opined that the kind of pain

Anderson complained of would not affect Anderson’s ability to return to his pre-accident job

full-time. According to Dr. Mitias, Anderson no longer needed pain medicine, muscle

relaxers, or physical therapy after his last visit.



                                                7
¶14.   Regarding lost wages, Anderson provided his tax returns for 2011, 2012, and 2013.

Anderson reported $22,276 in wages in 2011 for the tax period before the accident, $17,486

in 2012, and $1,248 in 2013. Anderson contended he was entitled to recover the difference

in wages between 2011 and 2012 and between 2011 and 2013, which he alleged totaled

$27,000. On cross-examination, Anderson admitted that he was making $3,000 per month

during the three-month period between the August 31, 2012 accident and December 4, 2012,

the day Dr. Brophy released Anderson with no work restrictions.

¶15.   Salaam and Tri-State contested Anderson’s damages evidence via cross-examination

of Anderson’s witnesses. Salaam and Tri-State argue on appeal that Anderson “failed to

prove by a preponderance of the evidence that all of his claimed medical expenses, all of his

claimed lost wages and all of his claimed pain and suffering were proximately caused by the

accident.”

¶16.   The jury determined that Anderson suffered $9,000 in total damages. The trial court

ordered Salaam and Tri-State to pay Anderson $2,250 (25% of $9,000) based on the jury’s

verdict allocating 25% fault to Salaam and Tri-State. Aggrieved with the amount of the

jury’s damages award, Anderson moved for a judgment notwithstanding the verdict, for an

additur, or, alternatively, for a new trial. The trial court denied Anderson’s post-trial motion.

Thereafter, Anderson filed an appeal. He asks this Court to determine whether the trial court

abused its discretion in denying his motion for an additur or, alternatively, for a new trial.

                                         ANALYSIS

¶17.   “The motion for an additur and its mirror motion, one for a remittitur, are variants of



                                               8
the motion for a new trial, going solely to the issue of damages.” Cade v. Walker, 771 So.

2d 403, 407 (¶9) (Miss. Ct. App. 2000). With regard to a motion for a new trial, our supreme

court has said:

       The grant or denial of a motion for a new trial is and always has been a matter
       largely within the sound discretion of the trial judge. The credible evidence
       must be viewed in the light most favorable to the non-moving party. The
       credible evidence supporting the claims or defenses of the non-moving party
       should generally be taken as true. When the evidence is so viewed, the motion
       should be granted only when upon a review of the entire record the trial judge
       is left with a firm and definite conviction that the verdict, if allowed to stand,
       would work a miscarriage of justice. Our authority to reverse is limited to
       those cases wherein the trial judge has abused his discretion.

Green v. Grant, 641 So. 2d 1203, 1207-08 (Miss. 1994); see Craig v. State, No.

2018-KA-00452-COA, 2019 WL 2513868, at *3 (¶13) (Miss. Ct. App. June 18, 2019)

(stating that when reviewing the denial of a motion for new trial, appellate courts will disturb

the verdict only when it is against the overwhelming weight of the evidence).

¶18.   To the extent Anderson contends the jury’s allocation of fault was against the

overwhelming weight the evidence, warranting a new trial, we disagree. Although the jury

heard evidence that Salaam was not maintaining proper distance when following Anderson,

the jury also weighed testimony that Anderson was talking on his cell phone when the

accident occurred and that Anderson was using his right turn signal before suddenly turning

left. The evidence presented at trial thus supports the jury’s apportionment of fault such that

the verdict was not against the overwhelming weight of the evidence. Therefore, the trial

court did not abuse its discretion in denying Anderson’s motion for a new trial on this issue.

¶19.   In reviewing a trial court’s grant or denial of an additur, this Court’s standard of



                                               9
review is likewise limited to an abuse of discretion. Maddox v. Muirhead, 738 So. 2d 742,

743 (¶5) (Miss. 1999); Rodgers v. Pascagoula Pub. Sch. Dist., 611 So. 2d 942, 945 (Miss.

1992). Further, when this Court reviews the action of the jury after the trial court has refused

to grant a new trial on the question of damages, “the question then becomes whether the

verdict was either so excessive or inadequate as to shock the conscience and to indicate bias,

passion and prejudice on the part of the jury, or, whether the jury failed to respond to reason.”

Cade, 771 So. 2d at 407.

¶20.   A trial court’s authority to impose an additur is found in Mississippi Code Annotated

section 11-1-55 (Rev. 2004), which reads as follows:

       The supreme court or any other court of record in a case in which money
       damages were awarded may overrule a motion for a 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 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.

Thus, pursuant to this statute, an additur may be awarded: (1) if the jury was influenced by

bias, prejudice, or passion; or (2) if the damages awarded were contrary to the overwhelming

weight of credible evidence. Rodgers, 611 So. 2d at 944.

¶21.   The Mississippi Supreme Court discussed these two standards in Green:

       Though stated in different terms, these two standards have long been regarded
       as saying essentially the same thing. The overwhelming weight of credible
       evidence standard is an objective one. Trial courts apply this standard by
       reference to the law on recoverable damages when applied to the evidence

                                               10
       before them. We review such matters on appeal for abuse of discretion. The
       bias, prejudice or passion standard is purely circumstantial one. Obviously we
       will have no way of knowing what was in the jury’s mind. What we do though
       is have our trial courts look at the amount of the verdict and, by comparison
       of the evidence, in certain cases hold that the amount is so low that it could
       only have been returned by a jury influenced impermissibly by bias, prejudice
       or passion.

Green, 641 So. 2d at 1208 (quoting Odom v. Roberts, 606 So. 2d 114, 119-20 n.5 (Miss.

1992) (overruled on other grounds)). “Evidence of corruption, passion, prejudice, or bias on

the part of the jury is an inference, if any, to be drawn from contrasting the amount of the

verdict with the amount of the damages.” Cade, 771 So. 2d at 407-08 (¶11). We are

therefore tasked with contrasting the jury’s verdict here with Anderson’s proof regarding

damages to determine whether the trial court abused its discretion.

¶22.   The trial court instructed the jury—as the “sole judges of the credibility of the

witnesses and the weight and worth of their testimony”—to consider the following elements

in determining the amount of Anderson’s damages:

       1. Past, present, and future physical pain and suffering and resulting emotional
       and mental anguish, if any;

       2. All reasonable and necessary medical expenses which have been incurred;

       3. Physical impairment and disability and resulting effect on Anderson’s life
       and lifestyle; and

       4. Loss of wages and any loss wage earning capacity.

The record reveals that Anderson alleged $16,578.36 in medical bills from injuries sustained

in the accident and lost wages totaling $27,000. As proof of pain and suffering, Anderson

presented proof at trial that included his testimony, his wife’s testimony, his treating



                                             11
physician Dr. Mitias’s testimony, and his medical records, which reflected treatment for

physical pain in his neck and back. Salaam and Tri-State contested Anderson’s damages

evidence via cross-examination of Anderson’s witnesses.

¶23.   The jury awarded $9,000 in total damages without regard to fault, as instructed. The

jury then allocated 25% fault to Salaam and Tri-State and 75% fault to Anderson, and after

a reduction for Anderson’s portion of fault, the trial court entered judgment against Salaam

and Tri-State for $2,250 ($9,000 x 25%).

¶24.   Anderson relies on a general line of decisions granting additurs where the jury award

was either less than the medical bills or equal to or greater than the medical bills, but which

left nothing for pain or suffering or for lost wages.3 According to Salaam and Tri-State,

       [t]he jury could have reasonably concluded, based on a reading of the evidence
       in the light that is most favorable to Defendant Salaam, that Plaintiff Anderson
       did not prove that all of his medical bills were for treatment that was necessary
       and causally connected to the accident. Likewise, based on a similar reading
       of the evidence, the jury could have reasonably concluded that Plaintiff
       Anderson had not proved by a preponderance of the evidence that he had
       sustained a loss of wages in the amount that he claims.

While we acknowledge that “[e]vidence of corruption, passion, prejudice, or bias on the part

of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with

the amount of the damages,” we also acknowledge that “[e]ach case involving the issue of

an additur must necessarily be decided on its own facts.” Cade, 771 So. 2d at 407-08 (¶11);

Green, 641 So. 2d at 1208.

¶25.   In Green v. Grant, Green put on disputed testimony that as a result of a car accident,

       3
       See, e.g., Maddox, 738 So. 2d at 745 (¶¶10-11); Harvey v. Wall, 649 So. 2d 184,
189 (Miss. 1995).

                                              12
which Grant admitted was her fault, she incurred $2,199.25 in medical expenses and missed

76 hours of work resulting in lost income of $1,330.58. Green also offered proof concerning

past, present, and future pain and suffering stemming from the accident. Significant

contradictory evidence was presented that Green was not seriously injured as a result of the

accident. The jury awarded Green $2,000 in damages. The trial court denied her motion for

an additur or alternatively, for a new trial. On appeal, our supreme court likewise refused

to grant an additur, reasoning that

       the extent of Green’s injuries, and the amount, reasonableness and necessity
       of her damages are disputed by the parties. “When testimony is contradicted,
       this Court will defer to the jury, which determines the weight and worth of
       testimony and the credibility of the witness at trial.” Odom, 606 So. 2d at 118
       (citing Stubblefield v. Walker, 566 So. 2d 709, 712 (Miss. 1990) and Motorola,
       555 So. 2d at 723).

Green, 641 So. 2d at 1209.

¶26.   “Additurs represent a judicial incursion in to the traditional habitat of the jury, and

therefore should never be employed without great caution.” Rodgers, 611 So. 2d at 945.

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.” Id. “This is because

the amount of damages awarded is primarily a question for the jury.” Id.

¶27.   Here, the “amount, reasonableness and necessity” of Anderson’s damages were

contested by the parties. See Green, 641 So. 2d at 1209. The jury determined the weight and

worth of the testimony, the credibility of the witnesses at trial, and the reasonableness and

necessity of Anderson’s damages and concluded that Anderson suffered $9,000 in total

                                             13
damages. We “will not substitute our factual findings for that of the jury in a contest of

credibility,” and as such, we find that the verdict was not so inadequate “as to shock the

conscience and to indicate bias, passion and prejudice on the part of the jury.” Roberson v.

State, 19 So. 3d 95, 105 (¶25) (Miss. Ct. App. 2009); Cade, 771 So. 2d at 407 (¶11).

Accordingly, the trial court did not abuse its discretion, and its decision to deny Anderson’s

post-trial motion for additur or, in the alternative, for a new trial should be upheld.

¶28.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, LAWRENCE AND McCARTY, JJ., CONCUR.
McDONALD, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION.




                                              14
