# FILED April 6, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ MYRANDA BROWN, a minor CANDY BROWN, a mino r and SHERRI MILLS, Individually and as Parent and Next

Friend of MYRANDA BROWN and CANDY BROWN, Plaintiffs, Hardeman Circuit No. 8692 Vs. C.A. No. 02A01-9806-CV-00174 JESSICA M. CHESOR and LISHA D. OAKS, Defendants.

____________________________________________________________________ ________ FROM THE HARDEMAN CO UNTY CIRCUIT COURT THE HONORABLE JON KERRY BLACKWOOD, jUDGE

Michell G. Tollison; Hawks & Tollison of Humboldt

For Plaintiffs T. Holland McKinnie; Stinson & McKinnie of Bolivar

For Defendants

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD ,

PRESIDING JUDGE. W.S.
CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE This appeal involves a suit for personal injuries and property damage resulting from an automobile accident. Plaintiffs-appellants, Myranda Brown (Brown), Candy Brown (Candy) andSherri Mills (Mills) appeal the judgment on the jury ver dict that a warded plaintiff

Mills2

$922.00 in damages and awarded no dam age s for plaintiffs My randa and Candy a

gainst defendants, Jessica Chessor (Jessica) and Lisha D. Oaks (Oaks). On March 26 , 1995 , Myranda, age 16, and Candy, age 14, were passengers in an automobil e dri ven by Jessica, age 15, and owned by her mother, Oaks. At the time of the accident,Jessica was an unlicensed driver. While driving on a public roa d, Jessica met an approaching vehicle driven by Brodie Sumler. Jessica claims that she swerved off the roadin order to avoid a collision and lost control of the vehicle flipping theautomobile. All three were taken by ambulance to local hospitals - Myranda to Bolivar Community Hospital and Candy and Jessica to Magnolia Regiona

l Medical Center i

n Corinth, Mississ

ippi. They were all released later that day. Candy an

d Myranda claime

d injuries to their n

ecks, should

ers, a nd backs as a result of the acc

ident. Some eleven months aft

er the accident

, the plaintiffs consulted with attorney, Michael G. Tollison (Tollison), who recommended that Candy and Myranda seek chiropractic treatment from Dr. Ron Teddleton. The plaintiff s then filed suit against Jessica, as driver, and Oaks, as

owner of the car, alleging both common law and statutory acts of negligence. They alleged, inter alia, that Jessica failed to maintain t he vehicle under reasonable con

trol, that she fail

ed to maintain a proper lookout ahead, that she was driving at an excessive rate of speed, and that she

was operating the vehicle without a valid driver’s license. They sought damage s in the amount of $150,000.00 for bod i ly injury, emotional distress, medical expenses, and other related expenses. The parties stipulated to $ 1844.00 in medical bills ($621.28 for Myranda and $1,223.12 for Candy) that were reasonable an d necessary to treat the injuries related to the automobile accident; however, all other damages were contested. After a trial on the merits, the jury returned a verdict assigni

ng fault as follows : Candy andMyranda (20%); Su

mler, a non-part

y, (30%); and Ches sor (50%). The ju ry found that Mills hadincurred the stipulated medica l expenses of $184

4.00. The jury also

found that Candy and Myranda had suffered no damages as a result of the automobile accident. The trial court entered judgment on the jury verdict and subsequently denied plaintiffs’ motion for a new trial. The plaintiffs timely

appealed the judgment

and present the following issues for review as stated in their brief:

I. Whether there is any material evidence to support the jury3 verdict which assigned twenty percent (20%) comparative negligence to the Plaintiffs/Appel lants when the Plaintiffs, minors at the time of the auto

mobile accident , were passengers in a vehicle being driven by Defendant/Appellee, an unlicensed driver, without any evi dence o f a negligent act committed by Plaintiffs? II. Whether it is reversible error for the jury to igno

re the rule of law as give n in jury instructions th at a plaintiff is e

ntitled to recover damages for pain and suffering when the uncontroverted p roof established that Plaintiffs had experienced pain and suffering as a result of the Defendant’s negligence? III. Wheth er i t was error for t he trial court to or

der Plaintiffs to submit to a ph y sical examination conducted by Dr. Michael Cobb? IV. Whether it was er ror for the trial court to allow the j ury to assess any degree of ne

gligence to Mr. Br

odie Suml er who was notidentified i n the Defendants’ An swer although his id

entity was known at the time Defendants’ Answer was filed? V. Whether the jury’s verdict is inadequate to th

e degree that it shocks the conscience, o r in the alternative, must have been the product of passion, prejudice, or unaccountable caprice? Where, a s here, a trial judge has approved a jury's verdict, our standard of re view i s whether there is any mate

rial evidence to

support the verdict. T.R.A.P. 13(d). Thus, absent a
reve rsible error of law, we will set aside a judgment on a jury verdict only where the recor d contains no material evidence to support the verdict. Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988). We will first consider the third and fourth issues together. The pla intiffs assert tha

t it was
error for the trial court to order Can dy an d Myranda to submit to an examination by the defendant’s doctor. In the fourth issue they contend that it was error for the juryto assess fault against Brodie Sumler

because he was not identified by name in the Answer to the Complaint. The defendants asse

rt that plaintiffs w

aived these issue s by failing to includ e them in their motion for new tria

l. T.R.A.P. 3(e) pro

vides in pertinent

part: [T]hat in all cases tried by a jury, no issue present ed for review shallbe predicated upon error in t he a dmission or exclusion of evidence, jury instructions granted or refus ed, m isconduct of jurors, parties or counsel, or other action committed or occurring during the trial of

the cas e, or other ground upon which a new trial is sought, unless the same was spe cifically stated i

n a motion for a new trial; otherwise such issues will be treated as waived.4

(emphasis added). It is evident that neit

her of these issue

s was presented t

o the trial court in p

laintiffs’ posttrial motion and, therefore, they cannot be raised on appeal. We should note, however, that from

our review of the re

cord, we find tha

t th e trial cou rt did not err in ordering the independent medical examination. The record also rev

eals that plaintif

fs specifically requested a jury instruction to determine the d egree of fault o

f the non-party a

nd th e reby waived this alleged error. These iss

ues are without me

rit. The first issue the appellants raise is that no mat eria l evidence supported the jury’s assignment

of 20% negligenceto Candy and Myranda. They argue that the record is devoid of any proof of negligence on their part. “Passengers in motor vehicles have a dut y to exercise reasonable care for their own safety. They are expec

ted to warn the driver of

unseen dangers, to protest excessive speeds, and to re frain from riding in an automobile operated by an intoxicated or reckless driver.” Ma nsfield

v. Colonial Freight Sys. , 862 S.W.2d 527, 531 (Tenn. App. 1993). (ci tation s omittted) Although a passenger does not have the same duties as the driver of a vehicle, a passenger is not without responsibility for h i s or her own safety. Harrison v. Pittman , 534 S.W.2d 311, 315 (Tenn. 1976). In determining whether or not the guest-passenger is negligent in riding in the automobile

of a reckless drive

r one does not look t

o the circumstanc

es as they appea

red tothe guest-passenger; instead, negligenc e is to b e determined by comparing the guest-passenger’s conduct with that of an ordinarily prudent individual under like circumst ances. Harvey v. Wheeler , 57 Tenn. App. 642, 423 S.W .2d 2 83, 285 (Tenn. App. 1967). Further, “[t]he reasonablenes s of a pla

int iff’s decision to encounter this risk is a factual determination to be determined by the trier of fact . . . .” Silcox v. Coffee , No. 01A01-9304-CV-00166, 1993 WL 350134, *5 (Tenn. App. W.S. Sept. 15, 1993). Evidence at trial established that both Candy and Myranda kne w that Jessica was a fifteen year old, unlicensed driver. The accident occurred on a rural road wide enough for ve hicles to pa ss in opposite direct

ions, although, ac

cording to Chessor

, not wide enough to

permit saf

e passing of a vehicle going in the same direction . Under t hese road conditions, there was evidence that Chessor, at the time she lost control of her vehicle, was driving at a speed5

approaching 55 miles per hour. The jury could h ave found that in view of Chessor’s driving qualifications,

the high rate of speed

in light of the road

conditions, and the lack of remonstration

or protest on the part of plaintiffs they were at least twenty

percent at fault for the accident. We believe that this finding is supported by material evidence. We also note that plaintiffs did not seek a directed verdict on the question of pla

intiffs’ fault, nor did plaintiffs make a special request for an instruction that the jury find no fault on the part of plaintiffs. To the contrary, plaintiffs submitted a special request for instruction that the jury determine the degree of comparative fault of both plaintiffs and defendants, indicating plaintiffs’ position that there was material evidence to support a finding of

fault on the part of plaintiffs. The second and fifth issues can be dealt with together as they both challenge the adequacy of the jury’s verdict. In the s econd iss ue, appellants argue that the jury ignored the court’s instructions by failing to award Candy and Mandy damages for pain and suffering when the proof in

the record

concerning such

injuries is uncontr

overted. In their

fifth issue, appe

llants argue that the jury’s verd ict was inadequate to the degree that it shocks the conscience or was a product of passion, prejudice, or unaccountable caprice. Plaintiffs contend that it was not reasonable for the jury to fail to award compensation for pain and suffering. There is no mathematical rul e or formul a for computing damages in a negligence case. Brow n v . Null , 863 S.W.2d 425, 429 (Tenn. App. 1993). The amount to be awarded in such cases is primarily for the jury to decide. L un n v. Ealy , 176 Tenn. 374, 141 S.W.2d 893, 894 (1940) (citations omitted). The law cannot deter mine any fixed or certai

n standardfor measuring such d amag es, but must leave the amount of the judgment to the jury guided by the facts and circumstances of the ca se. Ye llow Cab Co. of Nashvill e v. Pewitt , 44 Tenn. App. 572, 316 S.W.2d 17, 22 (1958). A review of the medical testimony reveals that basically the opinion evidence

is based

on plaintiffs’ statements to the medical personnelas to when their comp laints and pain commenced

and ceased. An y such opinion is therefore based on the witness’s assessment of plaintiffs’ credibility. “Such credibility is ordinarily for the jury, and the jury in this case was notbound to accept the medical testimony.” Baxterv. Vanden heovel , 686 S.W.2d 908, 912 (Tenn. App. 1984) (citation omitted).6 Plaintiff also asserts that

because a verdict was rendered for the medical expenses, a jury

was required to enter a verdict for pain and suffering. We must disagree. In Newsom v. Markus, 588 S.W.2d 883 ( Tenn. App. 1979), this Court considered the same argument. In finding no

error in the failure to award damages for personal injuries although an award fo r medical expenses was made the Court said:

We fail to find a reported Tennessee decision on

the issue, but it ha s been he ld that a party is en titled to recover

reasonable medical expenses for examinations, etc., in an effort to determine if personal injuries were sustained as a result of defenda nt ’s negligence, even though it develops that the party suffere d no personal injury. Id. at 887 (citations omitted). Plaintiffs also complain that the j ury failed to consider an award of medical expenses incurred for Dr. Teddleton’s services. In Karas v. Thorne , 531 S.W.2d 315 (Tenn. App. 1975), this Court said: The fact a given amount is proven as undisputed medical

expenses does not prove those expenses were necessary. The jury has the duty to weigh the testimony and to give

to each witness that degreeof credibility it de ems proper. When tha

t credibility is established and reflected in a verdict which is approved by the trial judge, appellate courts must give g reat weight to the decision. Id. at 317. In the instant case, as in Karas , the jury could well have concluded that plaintiffs were not injured as they claimed, and these medical expenses were not necessary. From our review of the record, we find there is material evidence to support the jury verdict, and the verdicts are not so inadequate as to show passion, pre

judice, or unacc

ountable caprice. Accordingly, the judgment of the trial court is affirme d, and the case is

remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed against the appel

lants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE7

____________________________________ DAVID R. FARMER,

JUDGE