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MAX ADAMS, Natural Father, Next Friend and Guardian of MARK D. ADAMS and JOHNNY MACK ADAMS, Minors, et al. v. MORRIS H. GREEN

AUGUST 07, 1985

MAX ADAMS, Natural Father, Next Friend and Guardian of MARK D. ADAMS and JOHNNY MACK ADAMS, Minors, et al.
v.
MORRIS H. GREEN, B T R LEASING, AND DORIS G. EDWARDS.



BEFORE WALKER, PRATHER AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

This is an appeal from a wrongful death action

in the Circuit Court of Jackson County, Mississippi. Plaintiff/appellant Max Adams represents the wrongful death beneficiaries, Mark D. Adams and Johnny Mack Adams, children of Iver Janell Adams Howell and Max Adams; and the plaintiff/appellant John William Howell individually and as a representative of the wrongful death beneficiaries William Gary Howell and Jeffrey Alexander Howell, minors and children of the decedent, Iver Janell Adams Howell. Three defendants were ultimately tried in this case, Doris G. Edwards, the driver of the automobile in which the decedent was a passenger, Morris Green, driver of the tractor-trailer rig with which the automobile collided, and B T R Leasing, owner of the tractor-trailer rig.

 On June 27, 1982, at approximately 8:00 p.m., Doris Edwards and her sister-in-law, Iver Janell Adams Howell, were traveling north on highway 63 just north of Moss Point, Mississippi. Doris was driving.

 At approximately the same time, Morris H. Green was exiting Interstate 10 West in a tractor-trailer rig where I-10 intersects with highway 63. He proceeded to cross the northbound lanes of highway 63 to enter the median in order to turn left onto the southbound lanes of highway 63. As he crossed the highway, the car occupied by Doris Edwards and Nell Howell collided with the back of the trailer just in front of the rear tires. Nell Howell died as a result of the collision. She was survived by her children, Mark D. Adams and Johnny Mack Adams, from her prior marriage to Max Adams; and by her husband, John Howell, and their children, William Gary Howell and Jeffrey Alexander Howell.

 Eleven witnesses testified at the trial. Factual issues were whether or not the tractor-trailer rig had one lane of highway 63 blocked; whether or not the Edwards' vehicle had its lights on; whether or not Doris Edwards had been drinking; whether or not Nell Howell had been drinking; whether or not the truck driven by Morris Green had its lights on; rate of speed at which the Edwards car was traveling when it struck the tractor-trailer rig; and whether Doris Edwards or Nell Howell was driving the Edwards vehicle. On this last point, Doris Edwards told the highway patrol officer that Nell Howell had been driving the vehicle but a witness at the scene of the accident testified that Doris Edwards was behind the wheel of the automobile and exited the car from the driver's side.

 At the conclusion of the plaintiffs' case, the defendants B T R Leasing and Morris Green moved for a

 directed verdict. The trial court sustained the motion as to the issue of punitive damages only, but the issue of liability was submitted to the jury, on November 18, 1983, and the jury returned with the following verdict:" We, the jury find for the defendants, Morris H. Green and B T R Leasing. "The verdict made no mention of the defendant, Doris Edwards. The appellants moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied and this appeal was brought to this Court.

 The first two assignments of error will be treated as one. The first assignment is that the form of the verdict is improper and not in accord with law; and the second assignment is that the jury failed to return a verdict against the appellee, Doris G. Edwards.

 We state at the outset that we have carefully reviewed all of the instructions offered by the appellants at the trial and we find that the jury was never instructed to return a verdict for the appellants if they were to find that the negligence of Doris G. Edwards was the sole and proximate cause of the death of her sister-in-law, Nell Howell. The jury was instructed for the appellants that if they were to find that Doris G. Edwards and Morris Green jointly, or Morris Green, individually, negligently caused the death of Nell Howell, they were to return a verdict for the plaintiffs.

 On behalf of the appellees Green and B T R Leasing, the jury was instructed that if they were to find the negligence of Doris G. Edwards caused the death of Nell Howell, instead of the negligence of Green, the jury was to return a verdict for the defendants, Green and B T R Leasing. The jury was further instructed for these two appellees that if the jury found in favor of Morris H. Green and B T R Leasing the form of the verdict may be:" We, the jury find for the defendants, Morris H. Green and B T R Leasing. "This was the form of the verdict that was rendered by the jury.

 The jury was instructed on behalf of the appellee, Doris G. Edwards, that unless the plaintiffs have shown by a preponderance of the evidence that there was negligence on the part of Doris G. Edwards which proximately caused or contributed to the accident, then it was the duty of the jury to return a verdict for the defendant, Doris G. Edwards. The jury was further instructed that if they were to find that the negligence of Green and not the negligence of Doris G. Edwards caused the death of Nell

 Howell, they were to find for the defendant, Doris G. Edwards. The jury was further instructed that the form of their verdict, if they did find in favor of Doris G. Edwards, may be" We, the jury, find for the defendant, Doris G. Edwards. "This form of the verdict was never returned by the jury.

 From our review, it is apparent that the appellant never instructed the jury to find against Doris G. Edwards individually. It is further apparent that the jury rejected all of the instructions offered on behalf of the appellee Doris G. Edwards. As pointed out above, one of these instructions expressly directed that," unless "the plaintiffs show that the negligence of Doris G. Edwards caused the accident, they were to return a verdict for Doris G. Edwards. This the jury did not do.

 When the verdict was returned, there was no objection by any party as to the form of the verdict and the trial judge dismissed the jury.

 Mississippi Code Annotated 11-7-161 (1972) provides that" [i]f the verdict is not responsive to the issue submitted to the jury, the court shall call their attention thereto and send them back for further deliberation. "

 In Universal C.I.T. Credit Corp. v. Turner, 56 So. 2d 800 (Miss. 1952), the jury had returned a verdict for the plaintiff for conversion against three defendants. The first verdict returned had assessed damages to each defendant. The judge explained to the jury that the verdict was not in proper form since damages cannot be divided among joint tort feasors. He sent them back to reform the verdict. On appeal, we affirmed and said that," [t]he trial court was under the duty to see that ...


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