IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 23, 2004 Session

MELANIE SUE GIBSON v. ERNESTINE W. FRANCIS

 Appeal from the Circuit Court for Sevier County

No. 99-905-II Richard R. Vance, Judge

No. E2003-02226-COA-R3-CV - FILED JUNE 30, 2004

This tort action arises out of a two-vehicle accident. At trial, the defendant Ernestine W. Francis

admitted liability. The jury returned a verdict in favor of the plaintiff Melanie Sue Gibson for

property damage in the amount of $6,900; however, the jury declined to award her any damages on

her claim for personal injuries. On appeal, the plaintiff argues that the trial court did not properly

perform its role as thirteenth juror; that the verdict is contrary to the weight of the evidence; and that

the trial court erred when it re-instructed the jury in response to a question from that body. We

affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court 

Affirmed; Case Remanded

CHARLES D. SUSANO,JR.,J, delivered the opinion of the court, in whichHERSCHEL P. FRANKS, P.J.,

and WILLIAM H. INMAN, SR. J., joined.

H. Douglas Nichol and Harold C. Wimberly, Knoxville, Tennessee, for the appellant, Melanie Sue

Gibson.

John T. Johnson, Jr. and Deborah E. Johnson, Knoxville, Tennessee, for the appellee, Ernestine W.

Francis.

OPINION

I.

On October 7, 1999, the plaintiff filed a complaint for damages resulting from the subject

automobile accident. As noted above, the defendant admitted liability, and the case proceeded to

trial solely on the issue of the damages to which the plaintiff was entitled. The primary focus of the

plaintiff’s claim for personal injuries was with respect to pain in her low and mid back. 
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At trial, the plaintiff testified on her own behalf. She also presented the testimony of the

following persons: her treating physician, her physical therapist, a vocational rehabilitation expert,

and a personal friend. The defendant rested at the conclusion of the plaintiff’s proof without putting

on any proof. After the jury was charged, it retired to deliberate. It later returned into open court

with the following written question: “Does the law require or state with any specificity with respect

to medical evidence in personal injury cases, i.e., does the burden of proof require medical evidence,

or can injury be found on the basis of subjective evidence only?” In response, the trial court reinstructed the jury on the plaintiff’s burden of proving each element of her claim by a preponderance

of the evidence. 

As previously noted, the jury returned a $6,900 verdict for the damage to the plaintiff’s

automobile, but declined to award her any damages on her claim for personal injuries. The trial court

approved the jury verdict. The plaintiff appeals, raising the following two issues which we quote

from her brief:

1. Whether the trial [court] erred in [its] role as thirteenth juror by

determining that the jury’s verdict was not contrary to the weight of

the evidence.

2. Whether the trial court erred in recharging the jury only on the

preponderance of the evidence charge and failed to either completely

recharge the jury or to answer specifically that subjective medical

evidence was sufficient to satisfy the Plaintiff’s burden of proof. 

II.

Our standard of review of a jury verdict is well-settled. The Supreme Court has addressed

it as follows: 

Rule 13(d) of the Tennessee Rules of Appellate Procedure provides

that “[f]indings of fact by a jury in civil actions shall be set aside only

if there is no material evidence to support the verdict.” As this Court

stated in the recent case of Hodges v. S.C. Toof & Co., “It is well

established that when reviewing a judgment based on a jury verdict,

appellate courts are limited to determining whether there is material

evidence to support the verdict.” 833 S.W.2d at 898. 

It is the time honored rule in this State that in

reviewing a judgment based upon a jury verdict the

appellate courts are not at liberty to weigh the

evidence or to decide where the preponderance lies,

but are limited to determining whether there is

material evidence to support the verdict; and in
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determining whether there is material evidence to

support the verdict, the appellate court is required to

take the strongest legitimate view of all the evidence

in favor of the verdict, to assume the truth of all that

tends to support it, allowing all reasonable inferences

to sustain the verdict, and to discard all to the

contrary. Having thus examined the record, if there be

any material evidence to support the verdict, it must

be affirmed; if it were otherwise, the parties would be

deprived of their constitutional right to trial by jury. 

Forrester v. Stockstill, 869 S.W.2d 328, 329-330 (Tenn. 1994) (quoting Crabtree Masonry Co. v.

C. & R. Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). 

In performing its role as the thirteenth juror, a trial court must weigh the evidence to

determine if the court is independently satisfied with the jury’s verdict. Ridings v. Norfolk Southern

Ry. Co., 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). Where the trial court simply approves the

jury’s verdict without further comment, we presume the court adequately performed its function as

thirteenth juror. Id. at 289; see also Davidson v. Lindsey, 104 S.W.3d 483, 488 (Tenn. 2003). When

a trial court approves a jury verdict, the issue for the appellate court becomes that as stated in the

Forrester and Crabtree cases.

III.

Applying ourstandard of review as noted above, we find no merit in the plaintiff’s contention

that the trial court improperly performed its duty to independently weigh the evidence as thirteenth

juror. The trial court’s sole comment in this regard was as follows: “[i]n accordance with the verdict

of this jury, I’ll approve that verdict and enter judgment in behalf of the Plaintiff against the

Defendant in the amount of $6,900, together with the costs of the cause.” Accordingly, we presume

that the trial court properly discharged its duty as thirteenth juror. See Ridings, 894 S.W.2d at 289.

This is a complete answer to this particular issue.

Although the plaintiff recognizes and cites the material evidence standard, the substance of

her argument is encapsulated in the following quote from her brief: “the material evidence in this

case clearly preponderates against a zero verdict for bodily injury.” We must decline the plaintiff’s

invitation to re-weigh the evidence. Instead, we must review the record to determine if there is any

material evidence to support the jury’s verdict. 

The plaintiff alleged and complained of pain in her low and mid back. Her subjective

complaints were at the crux of her allegation that she sustained personal injuries in the accident. At

trial, the plaintiff introduced the deposition testimony of her treating physician, Dr. Christopher

Sawyer. After the accident, the plaintiff did not go to the emergency room but visited Dr. Sawyer

later that day. Dr. Sawyer testified that his diagnosissubsequent to the accident was a “mild thoracic
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back strain.” Dr. Sawyer testified as follows on cross-examination regarding his diagnosis and his

decision to refer the plaintiff to an orthopedic doctor:

Q: A strain, is that –

A: Well, before we get into semantics here, she was having back pain.

A lot of people, using the term sprain and strain and all that kind of

stuff is kind of nonspecific anymore. She was having back pain.

Q: Okay.

A: We call it back pain.

Q: Can you sprain your neck and back like you do an ankle?

A: Sure. But it’s not all that simple either. There can be multiple

causes of back–at that period of time, that’s kind of a generic term is

what I’m getting at.

Q: You used – I mean basically speaking, she had back pain?

A: Yes, that’s correct.

Q: So far as now, has any physician ordered an MRI?

A: Not that I’m aware of. But, again, that’s why I sent her to an

orthopedist to get an opinion. She had seen somebody that knew her

back, that had X-rays on her back up to that point in time, and that

would be – that would be their call.

Q: And you sent her to Knoxville Orthopedic Clinic because you

valued their judgment?

A: Absolutely. 

* * *

Q: And did you receive Dr. Johnson’s report?

A: Yes, I did.

* * *
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Q: The physical examination, is that the section of the report where

the doctor talks about the actual physical examination and his

findings upon the exam?

A: Yes.

Q: And in the physical examination of Ms. Gibson did he note that

she did not appear to be in any distress when he examined her?

A: That’s correct.

Q: Did he note that she moved on and off the exam table with ease?

A: Sure.

Q: Of course, he noted that she had scoliosis, correct?

A: Uh-huh.

Q: That was before the accident. Did he say that she had normal

coronal and sagittal plane balance? And then my next question is

going to be what does that mean.

A: That means that in this plane and this plane (indicating) she had

normal balance. That’s an anterior and posterior and from side-toside.

Q: Did Dr. Johnson note that Ms. Gibson could flex and extend

normally without pain?

A: That’s what his note says.

Q: Did he indicate that he could not detect any dysrhythmia?

A: That’s what it says. 

Q: Did he say that she had no tenderness to palpation or percussion

of her lumbar spine?

A: That’s correct.

Q: That’s her low back, right?
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A: That’s her back.

Q: He said she was not even tender to touching and feeling, correct?

A: Correct.

* * *

Q: And from what you see in reading Dr. Johnson’s report in here, do

you see where Dr. Johnson found anything objectively abnormal,

other than the scoliosis?

A: No. But at the same time, and I understand your point on all this,

his impression still was persistent intermittent low back pain,

intermittent being the key word there. It may not have hurt that very

second she was in the office and she didn’t have tender places to

palpate. At the same time, she was having intermittent low back pain,

yes. 

Q: Based on what she told him?

A: That’s correct.

Q: Now, he did have her do or it appears that he had her do a, you

know, bending type maneuver to see if she had full range of motion,

correct?

A: Correct.

Q: And she had a full range of motion?

A: At that time.

As can be seen, the plaintiff’s claim that she suffered personal injuries in the accident was

founded on her subjective complaints of pain in her back. The expert testimony in the case with

respect to her personal injury claim was based upon her complaints. It was her obligation to prove

by a preponderance of the evidence that she suffered personal injuries in the accident. While the

defendant did not put on any proof, her counsel did vigorously dispute, by way of cross examination

of the plaintiff and her witnesses, that the plaintiff had suffered any personal injuries as a proximate

result of the accident. It was the theory of the defendant that the plaintiff was not injured in the

accident and that her complaints, if true, were related to a prior automobile accident some eight

months before the subject accident or a subsequent accident in February, 2000.
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It was the duty and prerogative of the jury to assess the credibility of the witnesses, and the

jury was at liberty to either believe or disbelieve the plaintiff’s subjective complaints. The jury

apparently chose not to believe the plaintiff’s testimony regarding her pain, its origin, and/or its

effect on her. If the jury disbelieved the plaintiff – and apparently it did – then the plaintiff failed

to establish her personal injury claim by a preponderance of the evidence. As a consequence of this,

there is material evidence to support the jury’s verdict.

IV.

After the trial court had charged the jury and after that body retired to deliberate, the jury

submitted the following written question to the trial court: “Does the law require or state with any

specificity with respect to medical evidence in personal injury cases, i.e., does the burden of proof

require medical evidence, or can injury be found on the basis of subjective evidence only?” The trial

court called the jury back to the courtroom and, after a brief discussion with the jury foreperson, reinstructed the jury regarding the plaintiff’s burden of proof and the definition of “preponderance of

the evidence.” On appeal, the plaintiff asserts that the trial court erred by not repeating the entire

charge to the jury and in failing to instruct the jury specifically that subjective evidence was

sufficient to satisfy the plaintiff’s burden of proof.

This court has stated the following regarding appellate review of jury instructions:

We review the jury charge in its entirety to determine whether the

trial judge committed reversible 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 measured against the standard of perfection.

Grissom, 817 S.W.2d at 685. The charge will not be invalidated if it

“fairly defines the legal issues involved in the case and does not

mislead the jury.” Otis, 850 S.W.2d at 446; Grissom, 817 S.W.2d at

685. Furthermore, a particular instruction must be considered in the

context of the entire charge. Elam, 738 S.W.2d at 174.

City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App.1996). A trial

court is permitted to give a limited re-instruction to a jury in response to a question from the jury

after it has retired. Elcan v. Augustine, C/A No. W1999-01621-COA-R3-CV, 2001 WL 13234, at

*6 (Tenn. Ct. App. W.S., filed Jan. 4, 2001); see also Miller v. Baptist Hospital, Inc., 1987 WL

7967 at *3 (Tenn. Ct. App. M.S., filed March 18, 1987); Presley v. Amburn, 461 S.W.2d 956, 958

(Tenn. Ct. App. 1970). 

The Supreme Court has stated the following regarding jury re-instruction:
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Of course, the only proper response by a trial judge to a question from

the jury or an individual juror isto recall the jury, counsel, and parties

into open court, hear the question, reinstruct the jury on the portion

of the charge that responds to the question, if necessary, and make

clear that the repeated instruction should not be considered as

emphasis of that portion of the charge.

Spencer v. A-1 Crane Service, Inc. 880 S.W.2d 938, 941 (Tenn. 1994). We note that this is the

exact procedure followed by the trial court in the instant case. After re-instructing the jury, the trial

court inquired: “Now, for the question that you’ve asked, does that cover it for everyone? Do I need

to go further?” The jury foreperson responded by saying twice, “that clears it up.” The trial court

noted that the other jury members nodded their heads in the affirmative. 

In the course of re-instructing the jury, the trial court stated, on three separate occasions, a

variation of this admonishment to the jury: “just because I’m not repeating the whole charge doesn’t

mean that this is any more important than any other charge.” We find no abuse of discretion on the

part of the trial court in its response to the jury’s question. 

V.

The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial

court’s judgment and for collection of costs assessed below, all pursuant to applicable law. Costs

of appeal are taxed to the appellant, Melanie Sue Gibson.

_________________________

Charles D. Susano, Jr., Judge