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JANUARY 07, 1987




In this personal injury action brought in the Circuit Court of Harrison County, the plaintiff, who had asked for

$100,000.00 in damages, was awarded $75,000.00. The trial court, however, ordered a remittitur of $35,000.00. The plaintiff has appealed the remittitur, and the defendant has cross-appealed the trial court's failure to grant him a judgment notwithstanding the verdict.

 Maurice McIntosh was, at the time of the accident complained of, a sixty-six year old self-employed funeral director and embalmer from Chicago. He was in Mississippi in February of 1979, along with some other men, on a golfing vacation. On the second day of the vacation, February 6th, rain prevented the men from golfing. Since McIntosh, who had driven his Peugeot from Chicago, had experienced some tire trouble on the trip, he decided to take the day to get one of his tires replaced. Along with him was Earnest Davis, a fellow vacationer.

 McIntosh had noticed the Deas Tire Company's sign on the way into Gulfport. The sign indicated that Deas carried Michelin tires, the brand that McIntosh's car used. He and Davis pulled into Deas' place of business and were directed by an employee to pull inside the shop. They parked the car over a rack, then McIntosh got out of the car to explain to one of the workers what he wanted. He walked to the left rear of the car to show the employee which tire he wanted replaced. After showing the employee the defective tire, McIntosh then walked back to the driver's side of the car to show the employee how to operate the controls on the Peugeot. As McIntosh then stepped back to allow the employee to see inside his car, he tripped over an electrical outlet box sticking up out of the floor, and fell on his head and shoulder.

 McIntosh initially thought that he had only sprained his ankle. However, by the next day, the foot had swollen and become painful, so McIntosh called Deas and asked to see a doctor. Deas sent him to see Dr. D. L. Clippinger, who diagnosed the injury as a fractured, or broken, ankle. Clippinger could not put the ankle in a cast, due to the swelling; however, upon learning that McIntosh would soon be returning to Chicago, he advised him to see a doctor there.

 To avoid ruining his friends' vacations, McIntosh remained on the Coast for the rest of the week. However, he did not join the other men on the golf course, but convalesced in his room, with his foot elevated. As soon as he returned to Chicago, McIntosh's wife took him to the hospital, where he stayed for eight days.

 McIntosh wore a cast for the next six weeks. Because his job required him to stand and move about constantly, the

 injury to his ankle caused him to miss a substantial amount of work. His income was cut in half for 1979, since, for the first five or six months after the accident, he could not stand for over 2-3 hours at a time. According to McIntosh, one ankle is still larger than the other one, and he continues to suffer from intermittent pain. McIntosh testified at trial to $13,392.76 in damages, including medical bills and lost income.

 The testimony regarding the accident and the damages was essentially undisputed, except for the condition of Deas Tire at the time of the incident. McIntosh and Davis both testified that the outlets, which apparently stuck up between 4" and 8 "from the floor, were painted a" dismal gray "- the same color as the floor. They also testified that immediately after the accident employees of Deas began putting rims around the outlets, presumably, to make them more noticeable. Both men stated that they did not see the outlets until after McIntosh fell. Two former Deas employees, on the other hand, testified that the outlets were painted yellow, and that it was a common practice to keep rims over them. One of Deas' witnesses, however, testified that some employees had stubbed their toes on the outlets.

 The jury's verdict for the plaintiff was returned on March 28, 1985. On September 30, 1985, the trial judge issued an order stating, in pertinent part:

 At the conclusion of the arguments, the Court observed that as the record was practically free of trial error, except possibly on the amount of damages awarded, a remittitur might be in order, and suggested to the parties that they settle the case before a ruling on this motion. . . .

 A careful examination of the evidence in relation to the issue of negligence, proximate cause and the nature and extent of injuries, and the instructions granted by the court revealed that there was practically no conflict on the issues or instructions. The only area upon which an appeal might be successful involved the amount of damages awarded. The record is overwhelmingly in favor of the Plaintiff on all other issues. The damages in this case are based upon the testimony of the Plaintiff, his friend and the deposition of the Defendant's Worker's Compensation doctor. Although no medical disability was established, the quality and

 presence of the Plaintiff as a witness and ligigant [sic] favorably impressed the fact-finder as to the ...

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