# FILED

July 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ WORTHER WILLIAMS, Plaintiff-Appellee, Shelby Circuit No. 61390 T.D. Vs. No. 02A01-9712-CV-00311 ROBERT W. STEWARD, Defedant-Appe

llant.

__________________________________________________ __________________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE JAMES E. SWEARENGEN, JUDGE

Andrew Hume Owe

ns of Memphis For Defendant-Appellant Marvin S. Bernatsk

y of Memphis For Plaintiff-Appellee

AFFIRMED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE HOLLY KIRBY LILLARD, JU DGE

This is an automobile personal injury case. Defendant Robert W. Steward appeals the judgment of the tria

l court on a jury ve

rdict for plaintif

f, Worther Willia

ms. During the evening rush hour, on May 11, 1993, Will iams was traveling northbound on1 There was no test imony from any medi

cal witness. The p

arties by agree

ment read the office records of the treating physician in lieu of his testimony. 2 Sycamore View Road in the inside lane, intending to turn left onto Summer Avenue. Sycamore View has three northbound lan es, three southbound lanes, and a center, two-way, turn lane. Traffic was backed up fr

om the intersectio

n in the normal lane

s of travel, so

plaintiff entered

the center turn lane over 50

0 feet from the int

erse ction and proceeded northbound. Meanwhile, Stewardpulled from a private driveway on the east side of Sycamore View proceeding west and intending to turn and proce ed south

. Steward crossed the three northbo

und lanes of traf

fic through a gap between cars stopped for the traffic light and the parties’ vehicles collided in the center turn lane approximately 500 feet from the intersection. The front-end of plaintiff’s 1972 Chevy Chevelle

was severely damaged, but due to the age of the vehicle, damage was estimated to be only $500.00. Mike Richardson, the Police Service Te chnician who arr

ived on the scene

to investigate the accident, testified that plaintiff made no complaint of injuryat that time. Both vehicles were towedfrom the scene, w ith plain tiff g etting a ride home with the wrecker driver. Later that evening, plaintiff beganexperiencing pain in his right shoulder and lower arm and was taken by his wife to the emerg

ency room at Baptis

tEast Hospital. After x-rays were taken, plaintiff was given medication for treatment of a “right shoulder contusion” andreleased with ins tructions to see his family physician. Plaintiff was seen two days later by his family physician, Dr. Castellaw, who provided medication for right shoulder pain and a “le ft knee bruise.” Plaintiff was then referred to a specialist,Dr. Lynch, whose records 1 indicate that plaintiff complained of

continued pain in the rightshoulder and a

sensation of weakness in the shoulder joint. Physical examination revealed the following: “Patien

t has full active a

nd passi ve mot ion with the right sho ulder with pain in all directions and significant weakness in external rotation. He has no significant pseudocromial

cr ep tis. No tenderness on palpating about the rotator cuff or any other abnormal findings on examination. X-rays of the shoulde r are n egative.” Approximately two weeks later, plaintiff returned for a follow-up v

isit with Dr. Lynch. Dr. Lynch noted that plaintiff “ha

s gotten almost complete relief of his shou

lder pain, has ex

cellent strength

in his rotator cuff and abductors and has regained near normal function of his shoulder.” Plaintiff was allowed to return

to work at3

that point, but records indicate that plaintiff sought treatment for continued shoulder pain on at least two occasions during the following year. At trial, in September

1997, plaintiff cl

aimed that he still h

ad pain in his should

er, but admitted that there was nothing he could not do now that he could do bef ore the acciden t. Plaintiff’s wife, however, testified, over objection, that plaintiff could no longer do mechanical work on her car, or do certain things around the house. Plaintiff introducedevidence of medical bills totaling $924.00, $500. 00 in p roperty damage, and lost wages of $2,213.75. The jury returned a verdict finding that plaintiff had sustained $35,000.00 in damages, but tha t he was also 10% negligent. After reduction for the portion of damages attributable to plaintiff’s negligence, plaintiff was awarded $31,500.00. Defendant

Robert Steward appeals the judgment of the trial court on the jury verdict for plaintiff and has enumera

ted eleven issues

for review. App

ellant prays th

at a new trial be granted, or, in the alternative, for remittitur. We have summarized appellant’s issue

s as follows: 1. Whether the trial court erred in allowing wife to testify about husband’s impairment when there was no medical proof of such. 2. Whether the tria

l court erred in

failing to instruct the jury that there was no medical proof sufficient to allowan award for future pain and sufferi

ng or future medic

al bills. 3. Whether the trial court erred in rejecting defendant’s requested jury instructions on the Tennessee statut es regarding improper turns and no-pass

ing zones. 4. Whether the trial court c ommitted prejudicial error when explaining the concept of comparative fault by using a dam age figure of $100,000.00 in its example, possibly leading the jury to believe that number was “in the ballpark.” 5. Whether the verdict was supported by the evidence, or was the result of the passion, prejudice, or caprice of the jury. 6. Should any of the above not independ ently co nstitute error sufficient to justify granting d

efendant a new t

rial, does their cumulative effe

ct warrant a ne

w trial? We will address appellant’s issues, as modified, in the order presented above. 1. Whether

the trial court

erred in allowing wife to testify about husband’s impairment when there was no medical proof of such. Appellant asserts that the trial court wrongly allowed plaintiff’s wife to render “what was tantamount

to a medical opinion” i

n response to a que

stion from plaintiff

’s counsel. We qu

ote the exchange complained of in its entirety:4 MR. BERNATSKY [plaintiff’s counsel]: Are there things that he can’t do now that he did before? MR

. OWENS [defendant’s counsel]: Objection. Competency what he can or can’t do, that’s beyond her capacity. THE COURT: I don’t k

now. I’ll overru

le that. MRS. WILLIAMS: Yes. There’s things then hecould do that he cannot do them now, and as like, he was a mechanic and stuff that he done on my car a w

hole lot, and also li

ke working aroun

d in the house. MR. BERNATSKY: Are there limitations on things he can pick up? A. Yes. Perhaps plaintiff’s couns

el could have laid a better foundation for the question, but that was not the basis for the obje

ction. It is well

settled th at a lay witness can testify to the physical

con dition of another person provided that the witness firsts states the detailed fac ts and the n gives her opinion or

conclusion. American Surety Co. v. Kizer , 212 Tenn. 328, 369 S.W.2d 736 (1963). In the instant case, plaintiff’s wife testified about her husband’s condition after the accident,discussed the treatment she observed him receive, stated that there were good days and baddays and that she would often wake up at night to find him rubbing his shoulder. Her conclusion that her husband cannot do everything that he could do before the accident was based

on her daily observa

tions of him. In any event, the credibility of the witness’s observations and conclusions goes to the weight to be give n the test imony by the trier o

f fact, and not to i

ts admissibility. It is for the trier of fact to determine whether the witness has stated any material facts that justify the witness’s conclusion. Hamlin & Allman Iron Works v. Jones , 200 Tenn. 242, 292 S.W.2d 27, 3 0 (1956). This issue is without merit. 2. Whether the trial court erred in failing to instruct the jury that there was no medical proof sufficient to allow an award for future pain and sufferi

ng or future medic

al bills. During closing arguments, defense counsel objected to a statement made by plaintiff’s counsel that plaintiff wou ld “have the rest

of his life to suffe

r with his arm.” De

fense counsel argued that this statement was impr oper bec ause there had been no competent proof of permanent

impairment. The trial court apparently agreed, stating: “We don’t have medical proof to that effect. All right.” Appellant asserts that the trial court’s statement was ambiguous and that he was entitled to have his objection properly sustained. In an attempt to cure the claimed5

error, counsel submitted a hand-written jury instruction to the effect that the jury could not consider an award for future pain and suffering or future medical bills. The trial court did not read the reque

sted instruction ve

rbatim, but instead

stated: I’m reminded that at one point during the course of the trial ther e was some reference to future pain and suffering, and proof of that kind is usually required to be in the form of expert t estimony, that is, a medical p erson, a doctor te

stifying to tha t effect, and there has been no proof of that nature of futu re pain and suffering. D efense counse l asserts that the trial court should have flat-out told the jury that they could not consider an award for future pain and suffering, and that the above “watered down” statement to the jury was insufficient. The standard for an

appellate court’s review of a trial judge’s jury

charge was stat

ed in City of Johnson City v. Outdoor West, Inc. , 947 S.W.2d 855 (Tenn. App. 1996):

We review the jury c

harge in its entire

ty to determine whether

the trial judge committed reve rsib le error. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992); In re Estate of Elam , 738 S. W.2d 169, 174 (Tenn. 1987); and Grissom v. Metropolitan Gov't of Nashville, 817 S.W.2d 679, 685 (Tenn. App. 1991). Jury instructions are not meas ured a gainst the standardof perfection. Grissom , 817 S.W.2d at 685. The charge w i ll not be invalidated if it "fairly defines the legal issues involved in the case and do es not mislead the ju

ry." Otis , 850 S.W.2d at 446; Grissom , 817 S.W.2d at 685. Furthermore, a particul arin struction must be considered in the context of the entire charge. Elam , 738 S.W.2d at 174. Outdoor West , 947 S.W.2d at 858. Upon review of the instructions as a whole, we conclude that the charge given was sufficient to advise the jury that

an award for future pain and suffering would be inappropriate.

3. Whether thetrial court erre d in rejecting defendant’s requested jury instructions on the T ennessee statutes regarding improper turns and no-pass

ing zones. Defendant

asserts that the trial court erred in failing to instruct the jury on the following statutes: 55-8-142. Turning moveme nts. -- (a) No person shall turn a

vehicle at an intersection unless the vehicle is in a proper position upon the roadway as required in § 55-8-140, or turna vehicle to enter a private road or

driveway, or othe

rwise turn a vehicle from a direct course or

move right or left upon a roadway, unless and until such move ment can be made with reasonable safety. No person shall so turn any vehicle without giving an app ropria te6 signal in the manner provided in §§ 55-8-143 and 55-8-144 in the event any other traffic may be affected by such movement. 55-8-121. No-passing

zones. -- The department of transportation is hereby authoriz

ed to determine those portions of any highway where overtaking and

passing or driving to the left of the roadway would be especially ha

zardous a n d may by appropriate signs or markings on the roadway ind icate the beginning and end of such zones. When such s igns or markings ar e in place and cle

arly visible to an ordinarily observant person, every driver of a vehicle shall obey the directions thereof. Trial courts should give a requested jury instruction (1) if it is supported by the evidence, (2) if it embodies the party’s theory of the case, (3) if it is a correct statement of the law, and (4) if its substance has not already been included in other portions of the charge. Lad d v. Hon da Motor Co., Ltd. , 939 S.W.2d 83, 103 (Tenn. App. 1996). Appellant asserts that the first statute cited is applicable because “had the plaintiff not changed lanes at a time when he was 500 feet from the intersection, he woul d have com e to a stop behind the traffic that was letting the defendant through and no collision would have occurred.” It is undisputed that the plaintiff was established in the turn lane prior to the time of the accident, and there was no proof, or even an allegation, that the physical act of changi ng lanes was perf

ormed negligently. Furthermore, Steward testified that he never saw the plaintiff’s

car prior to the accident. Perhaps, as appellant also argues, it was negligent for plaintiff to enter the turn lane at a point so far from the intersection. However, T.C.A. § 55-8-140 cont ains a subsection relating specifically to the pl aintiff’ s alleged conduct in the two-way turn lane. Defense counsel read that statute to the jury during closing argument and the t r ial court specifically

instructed the jury tha t such was an accurate statement of the law. Refusal of the trial court to instruct the jury on T.C.A. § 55-8-142 was not error. Appellant also asserts that i

t was error not to

instruct the jury on the statute dealing wi th no-passing zones because t he pavement mark

ings d efining ea ch boundary of the turn lane are the same as the markings designating a no-passing zone: a solid yellow line adjacent to a broken yellow line. However, a

ppellant cites to

no authority which equates a center, two-way turn lane witha no-passing zone. It is true that a cen

ter turn lane ca

nnot be used “sole

ly for the purpose of passing an other vehicle,” T.C.A. § 55-8-140(5)(C), but it is also true that if we adopted appellant’s theory, no driver would ever be able to legally cross the painted boundary and enter the turn lane. In a ny event, the substance of defendant’s requested charge is subsumed in the7

statute that defense counselread to the jury regarding conduct in a turn lane and the trial court specifically

instructed the jury that such was an accurate statement of the law. T he tri al court did not err in refusing to instruct the jury on T.C.A. § 55-8-121.

4

. Whether the trial court committed prejudicial error whe n explaining the concept of comp arative fault by using a damage figure of $100,000.00 in its example, possibly leading the jury to believe that number was “in the ballpark.” Appellant asserts that in explaining the concept of comparative fault to the jury, the following example offered by the trial court was “erroneous and prejudicial”:

THE COURT: Now, when you consider damages, you don’t take into consideration an

y percentages.

Let’s say you figure if the Plaintiff wasn’t at fault, hewould have been entitled to $100,000, butyou have found tha

t he was ten perc

ent at fault in

this. So on your form, you would say that the Plaintiff, the total value of

his claim or the damages that he’s entitled to is $100,000, and then I’lllook at his fault assessment, and when I see tha t it’s te n percent, then I will reduce that $100,000 by ten percent, but you don’t do that, you just give me his damages as i f his fleece were white as snow, so to speak , that is, not considering any fault. Have I made myself cle ar? Any question a

bout th at bec ause sometimes that pr esent s a problem? You do n’t consider fau

lt when you come to damages, but you do consider fault whenyou try to see which one of the par tie s actually was responsible for what happened or whether both of them were . Any questions? All right. Is there anything else? MR. OWENS [defendant’s counsel]: That $100,000 figure that doesn’t represent your opinion of the case, does it judge? MR. BERNATSKY [plaintiff’s counsel]: I think that’s mine. THE COURT: Just a number . Tha t’s for the Jury. They might even think more or less. That’s right. They didn’t sue for more than $100,000 so they could not consider more. The Tenn essee Su

preme Court has held that “[e]ven if a portion of the judge’s charge mightbe objectionable, if it is explained and corrected in other parts of the charge so that the jury would not be misled, this will not be reversible error.” Smith v. Parker , 213 Tenn. 147, 156, 373 S.W.2d 205, 209 (1963). Upon review of the transcript of the entire jury charge, we think that it is clear that the judge was merely using the $100,000.00 figure as a means of clarifying the concept of comparativefault. Furthermore, the amount of the verdict awarded indicates that the jury did not agree that $100,000.00 was “in the ballpark.” Appellant also asserts that the comment made by pl aintiff’ s counsel, “I think that’s mine,” in reference

to the $100,000.00 figure, was prejudicial in that it led the jury to believe that8

it was counsel’s opinion of the value of the case. This statement was not objected to at

trial and thereforecannot now be the basis for grant ing a new trial. Moreover, plaintiff’s counsel had already told the j ury that $25,000 wo uld be reasonabl

e. This issue is witho

ut merit. 5. Whether the verdict was supported by the evidence, or was the result of the passion, prejudice, or caprice of the jury. Appellant asserts that the ju

ry verdic t assessing plaintiff’s damages at $35,000.00 was excessive when considering that there was no expert medical testimony presented, there was no proof of permanent injury, medical bills totaled only $924.00, plaintiff had not visited a doctor within the three years preceding trial, plaintiff claimed lost wages of only $2,213.75, and there was only $500.00 in property damage. When factual determinations made by a jury have been approved by the trial judge, an appellate court may only set aside these factual findings in theabsence of any material evidence in the re cord to s upport the verdict. Jackson v. Patton , 952 S.W.2d 404, 405 (Tenn. 1997); T.R.A.P. 13(d). In Ellis v. White Freightliner Corp. , 603 S.W.2d 125 (Tenn. 1980), ou r Supreme Court said: The trial judge’s approval of a jury verdict invokes the

material evidence rule with respect to all other

issues of fact and we know of no reason why that rule shoul d not have the same effect when that approval includes the amount of the award. That action by the trial judg e means that he has accredited the testimony of the witnesses on t he issue of damages and has evaluated the evidence as supporting the amount awarded. Nevertheless,

when the question of remittitur is raised, the Court of Appeals has the duty to review the proof of damages and the authority to reduce an

excessive award. But when the trial judge has approved the verdi ct, the review in t he Court of Appea

ls is subject to the rule that if t

here is any material evid

ence to support the award, it should not be disturbed. Id. at 129. Upon careful revie

w of the entire re

cord, we find tha

t there is materia

l evidence to support the jury’s award. Despite the lack of expert medical testimony, there is evidence from which a reasonable jur

y could find thatthe plaintiff suffered shoulder pain throughout the fouryear period between the accident and trial, and that the plaintiff

stopped going to see his doctor because he was told there was nothing more that could be done for his shoulder. Although the jury’s award is quite liberal, the amount of the award is not

so unreasonable as to indicate that any improper influences were at work.9 6. Should any of the ab

ove not independe

ntly constitute

error sufficient to justify granting defendant a new trial, does their cumulative effect warrant a newtrial? In light of our findings that none of the is sues raised by ap pellant constitu

te e rror, we hold that their cumu

lative effect is , at most, negligible and does not warr

ant a new trial. The judgment of the trial court on the jury verdic

t in favor of plain

tiff is affirmed.

Costs of the appeal ar

e assessed again

st the appellant.

_________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE