Illinois Cent. R. Co. v. Nelson
| Decision Date | 21 January 1963 |
| Docket Number | No. 42395,42395 |
| Parties | , 4 A.L.R.3d 1217 ILLINOIS CENTRAL RAILROAD COMPANY et al. v. Zelda M. NELSON, Administratrix of Estate of Percy Nelson, Deceased. |
| Court | Mississippi Supreme Court |
Forrest B. Jackson, Wise, Smith & Carter, Jackson, Joseph H. Wright, W. F. Cerne, John W. Freels, Chicago, Ill., for appellants.
B. D. Statham, Magnolia, for appellee.
In this case the lower court rendered judgment for wrongful death in the amount of $150,000. This Court, in its original opinion, affirmed the case on liability and on the question of damages provided appellees entered a remittitur for $35,000 The remittitur was duly entered and the judgment was thereupon affirmed in the amount of $115,000.
The motion to correct judgment and the response thereto raise questions involving costs, statutory five percent penalty, and the matter of interest.
On the question of costs, Sec. 1989, Code of 1942, provides that under these circumstances this Court may adjudge the costs as may seem proper. The costs below, of course, will be adjudged against appellants. We are of the opinion that it would be proper to assess the appeal costs one-half to appellants and one-half to appellees. Shipman v. Lovelace, 215 Miss. 141, 60 So.2d 559; Ford v. Commercial Securities Co., 220 Miss. 157, 70 So.2d 525, 72 So.2d 201.
Appellants are not taxable with the five percent damages levied under Sec. 1971, Code of 1942. The five percent penalty is taxed only where the judgment of the court below is affirmed unconditionally. Ford v. Commercial Securities Co., supra; Shipman v. Lovelace, supra.
Appellants contend that the judgment in this case should bear interest from the date of the judgment of this Court entered after the remittitur was filed by appellees. Appellees contend that the judgment should bear interest from its date in the lower court. Appellants rely on Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, but we are of the opinion that this case is not in point because as to interest the issue was resolved on the ground of waiver. Grice v. Central Electric Power Ass'n., 230 Miss. 437, 92 So.2d 837, 96 So.2d 909, is not controlling for the reason that judgment was never entered in the court below and the plaintiffs never obtained judgment until reversal of the lower court and the entry of the judgment here.
The case of Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, is directly in point. Judgment for wrongful death was entered for plaintiffs in the lower court for the sum of $10,000. This Court conditionally affirmed if plaintiffs would enter a remittitur of $2500. Remittitur was entered and this Court, on motion, held that the judgment should bear interest from the date of final judgment in this Court.
Appellees rely on Grillis v. Patrick, 214 Miss. 747, 59 So.2d 341, wherein personal injuries were awarded plaintiff by judgment of the lower court. Defendant appealed and this Court affirmed on liability and conditionally affirmed provided plaintiff would enter a remittitur of $250.00. And the opinion in that case stated: 'If the remittitur is entered in this Court, the affirmance for $2,700 will bear interest from July 24, 1951, the date of the original judgment.' See also Miss. State Highway Com. v. Rogers, 242 Miss. 439, 136 So.2d 216.
Appellees also rely on Illinois Central R. R. Co. v. George, 241 Miss. 233, 130 So.2d 260. In that case damages were awarded for injuries to land in the sum of $1727.25. The lower court also entered an injunction. Defendant appealed to this Court and this Court affirmed the damages in full but reversed as to the injunction and provided that the decree for damages should bear interest from the date of the decree in the trial court. The George case is not in point because there was no conditional affirmance of the judgment for damages.
The cases of Grillis v. Patrick, supra, and Miss. State Highway Com. v. Rogers, supra,...
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