### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session SARAH ANITA JAMES v. SUSAN KAY SWINDELL An Appeal from the Circuit Court for Hamilton County No. 96CV1979 L. Marie Williams, Judge FILED AUGUST 23, 2000
No. E1999-02407-COA-R3-CV

This appeal arises out of an automobile accident. The Defendant

lost control of her vehicle, crossed three lanes of traffic, and hit Plaintiff's vehicle. Plaintiff suffered injuries and sued Defendant for damages. A jury trial ensued. The jury foundDefendant to be 100% at fault and awarded $15,000 in damages to Plaintiff. The Plaintiff filed a motion for a new trial alleging juror misconduct and presented a

juror's affidavit in support of her position. The Defendant untimely presented counter affidavits by jurors. The trial court judge granted a new trial based on juror misconduct. At the secondtrial the jury foun d the Defendant 1 00% at fault and awarded P laintiff $27,608.6 0 in damages. On appeal, the Defendant claims that the trial court erred in failing to grant Defendant’s motion fo r a directed ve rdict and in granting a new trial. We affirm the trial court's denial of a directed verdict for the Defendant and reverse the trial court's granting of a new trial based on juror misconduct. We remand the case to the trial c ourt for the rein

statement of the ju

ry verdict at the

first trial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part; Reversed in Part; and Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined.
Steven W. Kreitz

er of Rossville, GA

for the defenda

nt-appellant, Susa

n Kay Swindell William H. Horton of Chattanooga, TN for the plaintiff-appellee, Sarah Anita James
OPINION
This cause of action

arises out of anautomobile accident that occurred on October 3, 1995, on Hixson Pike in Chatta

nooga, Tennesse

e. It had been ra

ining heavily

shortly before th

e accident. Plaintiff was driving a vehi

cle owned by her emplo

yer, the Electri

c Power Board, at the time of the acci dent. P laintiff was driving south in the outside lane of a four lane highway. Defendant was traveling north in the outside lane, when she crossed three lanes of traffic and entered Plaintiff’s lane of traffic. Defendant barely missed a CARTA bus, which was immediately in front of Plaintiff’s-2-

vehicle. Defendant struck Plaintiff’s vehicle head on, spun, and then hit Pla intiff’s vehicle

again with the driver’s side of Defendant’s car.
After the accident, an

other vehicle tr

aveling the same r

oute as the Defe

ndant’s vehicle s

lid slightly in the same area

where the Defe

ndant’s vehicle s

lid, but the vehicle

remained in its

lane of traffic. Plaintiff was injuredin the accident. She suffered a fractured rib and injuries to her ankle, neck, lower back and hi p and underwent surgery in an effort to alleviate her back pain. She continued to have problems at the time of both the first and second tri al. Due to her inability to perform her job duties after the accident, she had to change positions with her employer. She had a greater earning potential with her prior job than the new position she took. Her daily activities are limited.
She sued for dama ges for persona

l injuries she suff

ered in the automo

bile accident.
I. ACTION OF THE TR IAL COURT
The first trial of this case was held on November 12, 199 7. At the trial, the Defendant contestedboth liability and the amount of damages. The jury found that the Defendant

was 100% at fault and awarded

the Plaintiff compensatory damages of $15,000. The Plaintiff filed a motion for a new trial, or for an additur, based upon, inter alia, juror misconduct in that the defense

counsel interjected

extraneous matters during the course of the trial. In support of her motion, Plaintiff filed the affidavit of Arthur Hart averring the following:

I, Arthur I. Hart, give this af fi davit of my own personal knowledge and hereby affirm a

s follows: 1. I am over the age of eighte en (18) and competent to testify to all matters herein. 2. I served as a juror in the trial of Sarah Anita Jame

s v. Susan Kay Swinde

ll, CaseNumber 96-CV-1979, which was held in the Circuit Court of Hamilton County, tennessee on November 12 and November 13, 1997. 3. During deliberations of the jury, one of the jurors mentioned that the plaintiff, Ms. James, probably received worker’s compen satio n benefits or other insurance benefits, which paid fo r her ex penses and would provide for her future medical e

xpenses. 4. I assumed the plaintiff’s medical expenses and lost wages had been paid by worker’s compensation insurance and that such insurance would pay for her expenses in the future. 5. I was not aware that the w ork er’s compensation carrier had a right to be reimbursedout of any recovery that Ms. James rece ived in the trial against Mrs. Swindell. 6. If I had been given all of

the facts regarding worker’s compensation and had been instructed that I should not consider the effect of worke r’s compensation-3- on the trial, it would have influenced my decision as a juro

r in the trial of this case. Based upon the affidavit, the trial court granted the Plaintiff’s motion for a new trial on the basis of juror misconduct in the consideration of insurance and the effect of

that consideration upon the verdict of at least one juror. The Defendant appealed from the order of the trial court. This court dismissed the appeal as not being a final judgment from which a Rule 3 of the Tennessee Rules of Appellate Procedure appeal can be taken.
After the case was remanded to the tri al court, the Defendant filed a motion for reconsiderationof

the granting of a new trial. The Defendant submitted affidavits of four jurors that while workers compens

ation was mentione

d in the jury room, it had no impacton the juror’s decision concerning the jury verdict. The trial court deni ed the Defendant’s motion for reconsideratio

n of its order gra

nting a new trial. At the second trial the jury again found that the Defendant was 100% at

fault and awarded the Plaintiff $27,6

08.60 for compens

atory damages. T

he Defendant the

n filed this appea

l.

II. ISSUES The following issue

s are presented

for our review b

y the appellant:
1. Whether

the trial court erred in failing to grant Defendant’s Motion for Directed Verdict at the end of Plaintif

f’s proof in the f

irst trial?
2. Whether

the trial court erred in granting Plaintiff’s Motion for New Trial on the allegation of juror misconduc

t following the conc

lusion of the first t

rial?

III. LAW AND DISCUSSION

Our standard of review as to findings of fact by a jury in a civil action is limi

ted to determining whether or not there is any material evidence to supp or t the verdict. Rule 13(d), T.R.A.P. The appellate courts do not determine the credibility of witnesses or weigh evidence on appeal from a

jury verdict. Where the

record contains material evidence supporting the verdict, the judgmentbased on th at verdi ct will not be disturb ed on appeal. Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822 (Tenn. 1994). A trial court's conclusions of law are subject to a de novo review. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 28 (Tenn. 1996).
A. Directed Verdict1 T.R. p. 213,lines 15- 18. -4-

The first issue addre

ssed to us for dete

rminati on i s whether at the first trial, the trial court erred in not directing a verdict for the Defendant at the close of the Plaintiff’s proof. The standard to be used in determining whether a verdict should be directed has been well settled in Tenness

ee. Courts do not re

weigh the evidenc

e or reevaluate

the witness' cred

ibility when they rule on a T. R. Civ. P. 50 m otion. Holmes v. Wilson , 551 S.W.2d 682, 685 (Tenn. 1977); Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993).
In ruling on a motion for a directed verdict, the court must take the strongest legitimate view of the evidence in favor of the non-moving party. In other words, the court must remove any conflict in the evidence by construing it in the light most favorable to the non-movant an

d discarding all countervailing evidence. The court may gran t t he motion only if, after assessing the evidence according to the foregoing standards, it determines that reasonable minds could not differ as to

the conclusions to be drawn from the evidence. Conatser v. Clark sville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Eaton v. McLain, 891 S.W.2d 587, 590 ( Tenn. 1994); Williams v. Brown , 860 S.W .2d 854, 857 (Tenn. 1993); Cecil v. Hardin, 575 S.W.2d 268, 271 (Tenn. 1978). The motion is granted only when the evidence can reasonably support but one conclusion. Crosslin v. Alsup , 594 S.W.2d 379, 380 (Tenn. 1980); Holmes, 551 S.W.2d at 685; Grissom v. Met ro Government of Na

shville , 817 S.W.2d 679, 683 n. 2 (Tenn. App.1991).
A case should go to the jury, even if the facts are un

disputed, when re

asonable person

s could draw conflicting conclusions from the facts. Gulf, M. & O. R. R. v. Underwood , 182 Te n n. 467, 474, 187 S.W.2d 777,

779 (1945); Pettus v. Hurst , 882 S.W.2d 783, 788 (Tenn. Ct. App. 1993).
In the f irst trial, t he Plaintiff presented her last witness, Mr. Wesley James, and rested. Defendant’s counsel did not make a motion for a directed verdi ct at the c lose of Plaintiff’s proof. When the Plaintiff

restedas to presenting evidence, the Defendant presented Detective D. J. Iles as its witness. Before the adjournment of the court on the

first day of trial

, at the end of Detective Iles testimony, counsel for the Defendant moved for a directed verdi ct which was d

enied by Judge Williams. 1 The second day of the hear ing, coun sel presented testimony by the Defendant. The Plaintiff presented no rebuttal. Counsel did not renew his motionfor a directed verd

ict at the close of the proof.
It is well settled in Tennessee that defendants waive their right

to rely on the error of the trial judge in the denial of their motion for a directed verdict made at the end of plaintiffs’ proof if they go forward with the

ir own proof rather than resting on the motion. See, e. g. Seale v. Bryant , 713 S.W.2d 62, 65 (Tenn. 1986) ; State ex rel. Commissioner, Dept. of Transportation v. Bryant , 786 S.W.2d 944, 949 (Tenn. Ct. App. 1989). Defenda nts must renew their motion at the end of all the proof, or it is wa ived. See, e.g. John Gerber Co. v. Smith , 150 Tenn. 255, 263 S.W. 974 (1924); Sadler v. Draper , 46 Tenn. App. 1, 14, 326 S.W.2d 148, 154 (1959). In this instance, the Defendant didnot move for a directed verdict at the endof Plaintiff’s proof, nor at the end of the Defendant’s2 The en tire text of Te nnessee R ules of Ev idence, R ule 606 (b) is:

(b) Inquiry Into Validit y of Verdict or Indict

ment. Upon an inquir

y into the

validit y of a verdic

t or indi ctment, a j uror may not test

ify as t o any matter or

statement

occurring dur

ing the cours

e of the j ury's del

iberati ons or to the effec

t of anything upon any juror' s mind or emotion as influencing t hat juror to assent t

o or disse

nt from the ver

dict or i ndictment
or concerning t

he juror' s mental processes, except tha t a juror

may testi

fy on the quest

ion of whether

extraneous (continu ed...) -5- proof – only in the middle of Defendant’s proof. While we have not found a case directly in point withthe denial of a mot

io n for adirected verdic

t in the middle of De

fendant’s proof

, the court in Searle v. Bryant , 713 S.W.2d 62 at 65, in dicta stated that it thought it improper for the trial court to direct a verdic

t during the defen

dant’s presenta

tion of his proof, ev en if it was corre cting its original denial of the motion at th e end of plaintif

f’s proof. Rule 50

of the Rules of Civil Procedure provides that a “motion for a directed verdict may be made at the close of the evidence offered by an opposing party or at the close of the case.” It does not provide that the Defendant may present it in the middle of his proof.
Even if the motion for a directed verdict had been presented pro perly, our review of the record persuades us that the record contains materia

l evidence suppor

ting the essential o

f the cause of actio n a s claimed by the Plaintiff and that the Defendant was liable for damages for Plaintiff’s personal injuries. Clearly, therefore, a directed verdict in Defendant’s favor was not warr antedin this case.
B. Juror Misconduct
The next issue t o be addresse d is whether juror misconduct occurred at the first trial justifying a

new trial. The Defendant avers that the trial court erred in granting Plaintiff’s motion for a new trial on the grounds of juror misconduct following the conclusions of the first trial. We agree. Subsequent

to the jury rendering a verdict of $15,000 in favor of the Plaintiff, the Plaintiff filed the affidavit of Arthur Hart averring during the deliberations of the jury, as already set out, one of the jurors mentione

d that the Plaintiff

probably received worker’s compensation benefits or other insurance benefits, which paid for her expenses and would provide for her future m edical expense

s. Additionally, he averred that he was not aware that the worker’s compensation carrier had a right to be reimbursed out of any recovery that Plaintiff received in the t

rial against

Defendant and that if he had been given

all of the facts

regarding worker’s compensation and had been instructed that he should not consider

the effect of wo

rker’s compensa

tion on the trial,

it would have influe

nced his decision as a juror in the trial of the case.
The admissibility of the jurors' affidavits is governed by Rule 606(b) of the Tenn. R. of Evid., which limits jurors' testimo ny to three areas: (1) extraneousprejudicial information being brought to the jurors attention, (

2) outside influen

ce being improper

ly brought to bear upon any juror, and (3) agreements made in advance to be bound by a quotient or gambling verdict. See Tenn. R. Evid. 606(b). 2 This Court has prev iously noted several "internal" influences that cannot serve as grounds2 (...continued)

prejudicial

informati

on was improperly br

ought to the

jury's attent ion, whether any ou tside influen ce was im properly brought to bear up on any juror, or w hether the jurors agre ed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affi davit or evidence of any st atement by the juror concerning a matt er about w hich the ju ror wou ld be prec luded fro m testifyin g be rece ived for th ese purp oses. Tenn. R . Evid. 60 6(b).

3 In this case the jury forem an related to the other ju rors informat ion presu mably acquired from h is wife, a surgical nurse. -6- to overturn a jury verdict include: "(1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3) a juror's personal experiences not directly related to the litigation, and (4) a juror's subjectiv

e thoughts, fears , and emotions." Caldararo v. Vanderbilt Univ ersity , 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990). 3

Jurors must render their

verdict based on the evidence introduced at trial. See Citizens' St. Ry. v. Burke , 98 Tenn. 650, 653, 40 S. W. 1085, 1085 (1897

); Stone v. O'Neal , 19 Tenn. App. 512, 519, 90 S.W.2d 548, 552 (1936). Howe ver, they are permitted to weigh the evidence in light of their own knowledge and experience. See High v. Lenow , 195 Tenn. 158, 168, 258 S.W.2d 742, 746 (1953). Thus, trial courts routinely instruct juries, as the trial court did in this case, that "you are not required to set aside your common knowledge . . . as you have the right to weigh the evidence in lig ht of your own obse rvations and expe

riences." See 8 Tenn. Prac. Tennes se e Pattern Jury Instructions - Civil 1.15.
It is virtually

impossible to shield jurors from every contact or influence that might theoretically affect their vote. Smith v. Phillips , 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 ( 1982). Thus, it wo uld be unreasonable, and perhaps unwis e, t o expect juries to be completely sterilized and free of any external influences. The jurors' various attitudes, philosophies, experiences, and backgrounds are the "very human elements that constitute one of the strengths of the jury system." United States v. McKinney , 429 F.2d 1019, 1022-23 (5 th Cir . 1970), cert. denied , 401 U.S. 922, 91 S. Ct. 910, 27 L. Ed. 2d 825 (1971).
Acco rdi ngly, jurors are not re quired to be completely ignorant about a case, and a verdict will not b

e overturned be

cause of jurors' generalized

knowledge of the parties or of some other aspect of the case. Government of Virgin Islands v. Gereau , 523 F.2dat

151; Garcia v. State , 777 P.2d 603, 608 (Wyo. 1989). A juror's personal experiences unrelated to the litigation are not external information. Martinez v. Food Cit y, Inc. , 658 F.2d at 374; United States v. Duzac , 62 2 F.2d at 913.6 However, a juror's personal experiences directly relating to the parties or events directly involved in the litigation may be. Hard v. Burlington Northern R.R. , 870 F.2d 1454, 146 2 (9th Cir. 1989).-7-

Caldararo v. Va

nderbilt Universi

ty , 794 S.W.2d at 743-744.
In Strawn v. SCOA Industries, Inc. , 804 S.W.2d 80 (Tenn. Ct. App. 1990), this court addresse d the issue of juror misconduct supported by three jurors’ affidavits. In that case, th e affidavits stated that the jury discussed tha t the Plaintiffs wou

ld have to pay their attorney’s fee out of any judge ment awarded to them. The court then found that the affidavits were not competent evidence. We conclude that the mention by a juror during deliberations in the jury room of

workers’ compensation is not extraneous a nd, therefore,

the juror’s affi

davit is not compete

nt evidence. Thus , we cannot consider as grounds for a new trial the Plaintiff’s assertions of error that the jury based the verdict on the theory that workers’ compensation had paid all or a portion of the Plaintiff’s expenses. The decision of the trial court in granting a new trial is reversed.
IV. CONCLUSION
The Plaintiff-appellee requested that this be determined a frivolous appeal. TheDefendantappellant filed an objection to the Plaintiff-appellee’s request. The issue was reserved and wa

s to be presented to us for consideration. Because this Court determined that the trial court erred in granting the motion for a new trial, we do not, of course, find that this is a frivolous appeal and the Plaintiff’s request is denied.
For the foregoing reasons the trial court is affirmed in part and reversed in

part. This case is remanded to the trial court for the re instatement of the

jury verdict on the

first trial,for such other action deemed appropriate by the trial court, and collection of costs below, which are, as are costs of appeal, adjudged against the Plaintiff, Sarah Anita James, and her surety.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE