TINA R. GUFFEY,                        )
                                       )
      Plaintiff/Appellee,              )
                                       )    Bedford County Circuit
                                       )    No. 6816
VS.                                    )
                                       )    Appeal No.
                                       )    01A01-9609-CV-00400
WENCO OF SHELBYVILLE, INC.             )
d/b/a WENDY’S RESTAURANT,              )
                                       )
      Defendants/Appellant.            )
                                                                FILED
                  IN THE COURT OF APPEALS OF TENNESSEE            February 7, 1997

                        MIDDLE SECTION AT NASHVILLE            Cecil W. Crowson
                                                              Appellate Court Clerk

         APPEAL FROM CIRCUIT COURT OF WILLIAMSON COUNTY

                            AT SHELBYVILLE, TENNESSEE


                       HONORABLE LEE RUSSELL, JUDGE


Richard Demonbreun, Attorney
1000 Demonbreun St., Suite 220
P.O. Box 23826
Nashville, TN 37202-3826
ATTORNEY FOR PLAINTIFF/APPELLEE

Steven A. Dix, Attorney
Suite 201, Court Square Building
201 W. Main Street
Murfreesboro, TN 37130
ATTORNEY FOR DEFENDANTS/APPELLANTS


                        AFFIRMED AND REMANDED.



                                  HENRY F. TODD
                                  PRESIDING JUDGE, MIDDLE SECTION




CONCUR:

BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
TINA R. GUFFEY,                                )
                                               )
       Plaintiff/Appellee,                     )
                                               )       Bedford County Circuit
                                               )       No. 6816
VS.                                            )
                                               )       Appeal No.
                                               )       01A01-9609-CV-00400
WENCO OF SHELBYVILLE, INC.                     )
d/b/a WENDY’S RESTAURANT,                      )
                                               )
       Defendants/Appellant.                   )



                                        OPINION


       This is a “slip and fall case” in which the jury awarded $173,250, and the defendant

appealed.



       The only issue on appeal is whether, in response to a post-judgment motion, the Trial

Judge erred in declining to allow defendant a credit for $45,268.92 for amounts previously paid

to or on behalf of plaintiff by defendant’s liability insurance carrier.



       The record is sharply abbreviated. It consists only of the following:



       1.      The complaint, which alleges negligence, injuries, expenses of past and future

treatment, past and future pain and suffering, bodily impairment, past and future loss of wages

and earning capacity, and loss of service and consortium



        2.     The answer, denying all facts relevant to this appeal and asserting comparative

negligence.



        3.     An order reciting a finding by the jury of $175,000 damages to the injured

plaintiff, 1% fault by said plaintiff and zero damages to the spouse. Judgment was awarded to

the injured plaintiff for $173,250.


                                                -2-
        4.     A “Motion to Modify the Judgment” to reduce it $45,268.92, the amount paid to

or on behalf of the injured plaintiff by Aetna Casualty Company, liability insurance carrier of

defendant.



        5.     An sworn memorandum in support of said motion.



        6.     An affidavit reading as follows:

               I, Chester J. Craig, after having first been duly sworn, do
               state and affirm upon personal knowledge as follows:

               1.     I am a claims supervisor with the Travelers/Aetna
               Casualty and Surety Company and I am the supervisor
               responsible for the claim of Tina Guffey.

               2.      My company has already paid $18,424.78 in
               medical expenses to health care providers of Tina Gaffey
               for treatment arising out of her accident at Wendy’s on
               January 8, 1993.

               3.    My company has already paid directly to Tina
               Guffey $26,844.14. Therefore, the total amount
               advanced to or on behalf of Tina Guffey is $45,268.92.


        7.     An unsworn response to defendant’s motion, asserting that the only medical

expenses proven at trial were those not paid by defendant, and that counsel for defendant

assured counsel for plaintiff that no set-off would be claimed for payment of unproven

expenses. The response is silent regarding the $26,844.14 allegedly advanced directly to

plaintiff.



        8.     A “Memorandum Opinion” of the Trial Judge stating:

                  The carrier paid pre-trial $45,268.92 in medical
               specials and in lost wages. There is no evidence of any
               written or oral agreement between the Plaintiff and the
               carrier about credit for these two categories of payments
               either at the time the payments were made or
               subsequently. There was a pre-trial conference in the case,
               at which the defendant sought to exclude certain medical
               bills from the proof, including bills already paid by the
               carrier. This judge recalls that at the pre-trial conference
               in the case, there were vague discussions of streamlining
               the case, but no agreement on how or whether any credits

                                              -3-
     for payments made pre-trial were to be handled. At trial
     only $4,345.00 of the medical expenses paid by the
     carrier were proved, and no lost wages were paid. Not
     only was there no proof of who paid the expenses and
     wages or whether they were paid, but there was not
     even any proof of lost wages or of most of these medical
     expenses.

        The Defendant did not, for obvious reasons, attempt
     to prove the fact that the carrier had paid any expenses.
     Neither party attempted to prove the fact that wages had
     been lost or that most of the medical expenses had even
     been incurred. The Defendant did not request that the
     Plaintiff be made to prove the element of his damages or
     raise with the court during the trial the significance of the
     failure of the Plaintiff to prove those particular damages.

        If any part of the judgment in this case is offset by the
     amount of the pre-trial payments, then the Defendant will
     receive funds for lost wages and medical expenses which
     the jury intended for another purpose, for instance, loss
     of earning capacity in the future or pain and suffering. If
     this court held that there is no set-off and that the
     Defendant is not entitled to recover any of the funds pre-
     paid, then the Defendant simply loses the benefit of
     having dealt generously with the Plaintiff. This court
     holds that the judgment contains only $4,345.00 for the
     payment of medical expenses which had been paid pre-
     trial to or for the Plaintiff. The Defendant is entitled to a
     credit for that amount.

        This ruling should not be construed as foreclosing the
     issue of the Plaintiff’s debt to the carrier. The carrier is not
     a party to the tort litigation,. And it may be that there will
     have to be litigation between the carrier and the Plaintiff to
     determine what the contractual or equitable obligations of
     the Plaintiff are to the carrier. One must speculate how the
     carrier would have perceived the obligations of the
     Plaintiff to repay if the Defendant had prevailed at the trial
     on the liability issue. The carrier certainly could have dealt
     with these issues in a clear way, in writing, when it first
     began making payments to or for the Plaintiff. The Order
     entered by this court on this motion will be limited to the
     issue of set-off.


9.   An order stating:

       IT APPEARED to the Court as follows:

     1.     That the jury’s verdict was in all respects consistent
     with the evidence in the case and was not excessive in its
     amount;

     2.      That the Defendant is therefore not entitled to a
     remittitur;

                                     -4-
               3.     That the Defendant is entitled to a set-off against the
               judgment of $4,345.00 for medical payments made pre-trial
               and proved by the Plaintiff at trial; and

               4.       That the Defendant is not entitled to a set-off in this
               litigation for any other amount paid to or for the Plaintiff
               prior to trial and the rights and obligations of and between
               the carrier and the Plaintiff which result from the pre-trial
               payment of expenses and wages not proved at trial is
               expressly found to be inappropriate for determination in this
               case, and therefore

               IT IS ORDERED that the Motion for Remittitur is denied
               and

               IT IS further ORDERED that the Defendant receive a set-
               off in the amount of $4,345.00 against the judgment of
               $173,250.00 award in this case by the jury.



       10.     Notice of Appeal and Appeal Bond.



       In Byrd v. Stuart, 224 Tenn. App. 46, 450 S.W.2d 11, (1969), the injured party

executed a “Receipt for Expense Advanced” stating:

                         “This amount is to be credited to any final
                       judgment which you may obtain as a result of
                       This accident.”

After entry of judgment in favor of plaintiff, the Trial Court refused defendant’s request for

reduction of the judgment to the extent of the advancement. Defendant brought a separate

action in equity for the same relief. The Chancery Court sustained a demurrer and dismissed.

The Supreme Court reversed, remanded for further proceedings and said:

                  While we have not heretofore considered the proce-
               dure of obtaining proper credit for advance payments
               of judgments, we are not, however, convinced that
               appellant was without a means of relief in the law
               division of the trial court. In this we have been greatly
               persuaded by the authority of what so far as we are
               aware in the only reported case dealing with the
               procedure of obtaining proper credit for advance
               payment of judgments. That case was Edwards v.
               Passarelli Bros. Automotive Service, Inc., 8 Ohio St.2d
               6, 37 Ohio O.2d 298, 221 N.E.2d 708, 25 A.L.R.3d
               1087 (1966).

                [6] So far as we are aware, such post judgment
               motions are unknown in the practice and procedure of

                                               -5-
               this state. We strongly feel, however, that matters such
               as this should be resolved in the suit at law. We conceive
               of no reason why, after the jury has returned its verdict
               and been discharged, and any motions for new trial and
               remittitur or additur have been disposed of, the
               defendant could not move the court to accept proof of
               the advance payment. Should the trial judge then find
               the advancement to have been made, he could
               incorporate the partial satisfaction in his judgment.

                   [7] Nowhere in the record of this cause is it shown
               that appellant ever attempted to claim his partial
               satisfaction of judgment in the law division. Under the
               facts of this case we are not inclined to say that this
               deprives appellant of his relief in equity.



       Presumably, on remand, the Chancery Court awarded the requested refund of

advancement.



       In Howard v. Abernathy, Tenn. App. 1988, 751 S.W.2d 432, no “agreement to refund

advancement” was signed. However, the expenses advanced were proved and included in the

judgment. The Trial Court overruled a post judgment motion for credit for the

advancements. This Court reversed and reduced the judgment by crediting the

advancements. This Court discussed the applicable principles of law stated in Byrd v. Stuart

and concluded:

                 This Court conceives of no valid reason why the foregoing
               should not be controlling in the present case despite the lack
               of an express agreement for credit and the subsequent
               adoption of T.R.C.P. Rule 8.03.

                 If a post-judgment payment had not been credited upon the
               judgment, the defendant certainly would have a right to an
               order allowing the credit. No reason occurs to this Court
               why credit should not likewise be allowed for a pre-judgment
               payment. The action of the Trial Judge is before this Court
               for review de novo. This Court is therefore in position to and
               should take the action which should have been taken by the
               Trial Judge.

                 The action of the Trial Judge disallowing the credit is
               reversed. The judgment is reduced from $7500.00 to
               $6093.00.




                                             -6-
       Plaintiff asserts that the expenses and damages for which advancements were made

for defendant were not proved by agreement of counsel and were not included in the verdict

and judgment.



       The memorandum of the Trial Judge quoted above, serves as his finding of fact as to

what did and did not occur in his presence.



       A careful reading of that memorandum fails to disclose any support for any allegation

of any agreement between counsel. There is no affidavit or other evidence in the record from

which this Court could find an agreement between counsel.



       The memorandum of the Trial Judge does establish that only $4,345.00 medical

expenses were proved, and no loss wages were paid (proved?).



                                  Burden of Proving Damages

       The comparative fault doctrine has altered the process by which the jury allocates

fault among the parties, but it has not altered the process for calculating the plaintiff’s

damages. Juries still have the exclusive province to assess damages within the range of

reasonableness established by the proof. Smith v. Shelton, 569 S.W.2d 421, 427 (Tenn.

1978); Tennessee Coal & R.R. v. Roddy, 80 Tenn. 400, 407-08, 5 S.W.286, 289 (1887). The

jury’s first task is to determine the total amount of the plaintiff’s damages based on the proof.

Then, and only then, can the jury proceed to allocate fault among the parties (including the

plaintiff) and to determine each party’s monetary liability by dividing the total amount of the

plaintiff’s damages by the percentage of fault allocated to the party.



        The comparative fault doctrine has likewise not altered the burden of proof in

negligence cases. Plaintiffs still have the burden of presenting proof that will enable the jury

to reasonably determine the amount of their damages. Keith v. Murfreesboro Livestock Mkt.,



                                                -7-
Inc., 780 W.W.2d 751, 755 (Tenn. Ct. App. 1989); Dill v. Gambill Asphalt Materials, 594

S.W.2d 719, 722 (Tenn. Ct. App. 1979. We should not acquiesce in a procedure that permits

the jury to speculate about the extent of the plaintiff’s damages.



        In a typical personal injury case, the plaintiff will present proof concerning (1) the

circumstances of the injury, (2) the medical treatment received and need for additional

medical treatment, (3) the cost of the medical treatment, (4) pain and suffering, (5) and the

future impact of the injury on the plaintiff’s life. If we permit the plaintiff to testify about his

or her medical treatment without also requiring proof of the cost of the treatment, we leave

the jury to speculate about how much the medical expenses were. Thus, the jury’s

calculation of damages may end up bearing no relationship to the actual cost of the medical

treatment.



        Plaintiffs in personal injury cases have the burden of proving all their damages,

including damages for which they have received some advance payment. They should not be

relieved of this burden unless (1) the court has excluded otherwise competent damage

evidence or (2) the parties have formally agreed or stipulated that proof concerning certain

damages will not be presented to the jury. In all other circumstances, the courts should find

that the amount of damages calculated by the jury represents the full amount of damages to

which the plaintiff is entitled. Unless one of these two circumstances exist, the courts should

subtract any advancements a defendant has made from the verdict against that particular

defendant without regard to whether or not the plaintiff introduced proof of these damages.

We need not decide in this case what should be done if the advancements exceed the amount

of the judgment against a particular defendant.



        Upon this meager record, this Court is unable to presume that evidence of certain

expenses was not introduced as a result of an unproven agreement between counsel. In the

absence of a transcript, this Court cannot presume that the jury was instructed to include in



                                                -8-
the verdict only proven expenses and losses, and that they obeyed that instruction, thereby

excluding such damages from the verdict.



       In this record, we have only the general verdict of the jury for $173,250.00, the

affidavit of $45,268 paid to plaintiff, the memorandum of the Trial Judge asserting that no

monetary losses were proven except $4,345.00, and an order reducing the judgment by this

amount.



       This Court cannot presume that the jury included unproven damages in its verdict.



       This Court can and does presume that the $4,345 proven medical expense was

considered in arriving at the general verdict. Therefore, the set-off should be in this amount.



       The judgment of the Trial Judge is reducing the original judgment of $173,250.00 by

only $4,345.00, resulting in a net judgment of $168,905.00 is affirmed. Costs of this appeal

are taxed against the plaintiff. The cause is remanded to the Trial Court for further

proceedings.



                          AFFIRMED AND REMANDED.


                                              ___________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


____________________________
WILLIAM C. KOCH, JR., JUDGE



                                              -9-
