1 Her parents were awarded $22,300.00 for medic al expenses, the rea

sonableness of which is

not questioned. 

# FILED
January 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSE EASTERN SECTION AT KNOXVILLE

DAVID HENSON and SARAH ) HAMILTON CIRCUIT HENSON, Individually and as ) Parents and Next F

riends of ) NO. 03A01-9706-C V-00230 CASEY ERIN HENSON, a Minor, )

) HON. ROBERT M. SUMMITT v. ) JUDGE ) CARTER EXPRESS, INC.; ) ASTRO ENT

ERPRISES, I

NC.; and ) DONALD R. HURT, ) ) Defendants/Appel

lants/ ) Appellees, ) ) v. ) ) KASBAR NATIONAL ) INDUSTRIES, INC.; SATHER ) TRUCKING CORPORATIO N; and ) DANNY L. WARREN, ) ) AFFIRMED Defendants/Appellees )

Charles J. Gearhiser and Michael A. Anderson, Chattanooga, and W. Charles Doerflinger, L

awrenceburg, f

or Plaintiffs. John T. Rice, Chattanooga, for Defendants Carter Express, Inc., Astro Enterprises, In

c., and Donald R.

Hurt. Steven W. Keyt,

Chattanooga, for D

efendant Sather T

rucking Corporation.



### M E M O R A N D U M O P I N I O N INMAN, Senio

r Judge A jury awarded C asey Henson, age 1 5, $155,000.00 for d amages for personal injuries 1 she sustained in a tra ffic crash.2 Casey was a passenger in an automobile which collided with a truck owned by Carter Express, Inc. Other vehicles, including another Carter Express truck, w

ere involved in the ac

cident, the dynamic s of which need not be described since liability is not an issue. Carter Express a

rgues on appeal that ( 1) the judgment is exc essive, (2) the jury considered f

acts not in evidence,

(3) the trial judge should have instructed the jury that the plaintiffs were required to mitigate damages, (4) a written statement of the witness England was erroneously excluded, and that (5) the Court erre

d in taking judicial noti

ce of 49 C.F.R.Sect. 392.14 and in charging the jury of i

ts contents and effe

ct. Other issues w

ere propounded but not argued. We have nevertheless considered them. Casey suffered a

fracture of her

left femur, wh

ich was reduced by surgery. A steel pin was inserted, later removed. Her left leg is one-half inch shorter than her ri

ght leg. She bears

an unsightly scar and i

ndentation. The amount of the award is alleged to be excessive, but when the trial judge has approved it, our revi ew is subject to the rat ional evidence rule

. Ellis v. White Freightliner Corp ., 603 S.W.2d 125 (Tenn. 1980). We find rational evidence to support the award

as rendered. According to an aff

idavit from one of the

jurors, Stacy Mc

Laughlin, the jury considered the p

ossibility that Casey m

ight have plastic surg

ery in the future. This affidavit may not be considered under T ENN . R. E VID . 606(b), but, even so, we do not be

lieve that the jury th

ereby considered f

acts outside the record. It is fa

miliar law that a

juror may rely upon c

ommon sense and experiences. Burchfield v. State, 774 S.W.2d 178 (Tenn. App . 1988).

The defendants re

quested the Court to c

harge the jury that S tacy had a3

duty to mitigate her da

mages. The Court

declined to do so, and

such refusal is said to be error. We agree with the argument of the appellees that the requested instruction is n ot in the record, and i s thus beyond ou r reach. Jones v. Tenn. Farmers Mutual Ins. Co ., 896 S.W.2d 553 (Tenn. App. 1994). The asserted mitigation would involve corrective surgery to lessen t he ugliness of the scar. We find no evidence in this record to req uire or justify such a

n instruction. Another truck driver, Harry Truman England, testified that he had seen the Carter Express trucks speeding shortly before the accident. Rather than cross-examine England about the contents of a written statement he made, counsel for the defe

ndants sought merely to introduce the sta tement, which the Court denied on the gr

ounds of hearsay. W

e cannot assign erro

r on the part of the trial judge for ref using to admit th e statement absent a p roper foundation. See T ENN . R. E VID . 612. The trial court took judicial notice of 49 C.F.R. sect. 392.14 and charged the jury accordingly. Appellants argue that they were given insufficient notice of this action, that

the Rule was not publi shed, and that it wou ld pre-empt the duty of ordinary car e under Tennessee law. T ENN . R. E VID . 202(b) authorize s a court to take judic ial notice of the published regulations of a federal agency. Counsel for the defendant concedes that he received a

copy of the regulatio

n two days before tr

ial, which we thi

nk is not unreasonable. The regulation is di rected to the more

careful operatio

n of trucks in inclement w

eather, not essent

ially different fr

om the common and statutory law of T

ennessee. We fi

nd no error in the adm

ission of this regulation. We have considered the remaining issues propounded by the appellee that the trial court

erred in refusing t

o charge punitive dam

ages and find none2 Rule 10 . Affirm ance W ithout O pinion - M emor andum Opinio n. (b) M EMORAN DUM O PINI

ON . The Court, wit

h the concurre

nce of all

judges part

icipat ing in the

case, may aff

irm, rever

se or modify t

he actions

of the trial court by me morand um opin ion when a formal opin ion would have no pre cedential value. W hen a case is decide d by memorandum opinion it s hall be des

ignated “MEMORANDUM OPINION,” shall not be published,

and shall

not be cit

ed or reli

ed on for any rea

son in a subs equent unrelated case. [As amended by order fil ed April 22, 1992] 4 of them are merit

orious. This case is partic

ularly subject to dispos

ition according to R ULE 10 of this Court. 2 The judgment is aff irmed at the costs of

the appellants.

___________________________ William H. Inma

n, Senior Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Herschel P. Fr

anks, Judge