                        IN THE COURT OF APPEALS OF TENNESSEE
                             WESTERN SECTION AT JACKSON
                     ______________________________________________

MYRANDA BROWN, a minor
CANDY BROWN, a minor and
SHERRI MILLS, Individually                        FILED
and as Parent and Next Friend
of MYRANDA BROWN and                                 April 6, 1999
CANDY BROWN,
                                                 Cecil Crowson, Jr.
       Plaintiffs,                                Appellate C ourt Clerk
                                                    Hardeman Circuit No. 8692
Vs.                                                 C.A. No. 02A01-9806-CV-00174

JESSICA M. CHESOR and
LISHA D. OAKS,

      Defendants.
____________________________________________________________________________

                 FROM THE HARDEMAN COUNTY 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)

and Sherri Mills (Mills) appeal the judgment on the jury verdict that awarded plaintiff Mills
$922.00 in damages and awarded no damages for plaintiffs Myranda and Candy against

defendants, Jessica Chessor (Jessica) and Lisha D. Oaks (Oaks).

        On March 26, 1995, Myranda, age 16, and Candy, age 14, were passengers in an

automobile driven 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 road, Jessica met an

approaching vehicle driven by Brodie Sumler. Jessica claims that she swerved off the road in

order to avoid a collision and lost control of the vehicle flipping the automobile. All three were

taken by ambulance to local hospitals - Myranda to Bolivar Community Hospital and Candy and

Jessica to Magnolia Regional Medical Center in Corinth, Mississippi. They were all released

later that day. Candy and Myranda claimed injuries to their necks, shoulders, and backs as a

result of the accident.

        Some eleven months after 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 plaintiffs 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 the vehicle under reasonable control, that she failed 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 damages in the amount

of $150,000.00 for bodily 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 and 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 assigning fault as follows: Candy

and Myranda (20%); Sumler, a non-party, (30%); and Chessor (50%). The jury found that Mills

had incurred the stipulated medical expenses of $1844.00. 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 jury


                                                2
                 verdict which assigned twenty percent (20%) comparative
                 negligence to the Plaintiffs/Appellants when the Plaintiffs, minors
                 at the time of the automobile accident, were passengers in a
                 vehicle being driven by Defendant/Appellee, an unlicensed
                 driver, without any evidence of a negligent act committed by
                 Plaintiffs?

                 II. Whether it is reversible error for the jury to ignore the rule of
                 law as given in jury instructions that a plaintiff is entitled to
                 recover damages for pain and suffering when the uncontroverted
                 proof established that Plaintiffs had experienced pain and
                 suffering as a result of the Defendant’s negligence?

                 III. Whether it was error for the trial court to order Plaintiffs to
                 submit to a physical examination conducted by Dr. Michael
                 Cobb?

                 IV. Whether it was error for the trial court to allow the jury to
                 assess any degree of negligence to Mr. Brodie Sumler who was
                 not identified in the Defendants’ Answer although his identity
                 was known at the time Defendants’ Answer was filed?

                 V. Whether the jury’s verdict is inadequate to the degree that it
                 shocks the conscience, or in the alternative, must have been the
                 product of passion, prejudice, or unaccountable caprice?

         Where, as here, a trial judge has approved a jury's verdict, our standard of review is

whether there is any material evidence to support the verdict. T.R.A.P. 13(d). Thus, absent a

reversible error of law, we will set aside a judgment on a jury verdict only where the record

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 plaintiffs assert that it was

error for the trial court to order Candy and Myranda to submit to an examination by the

defendant’s doctor. In the fourth issue they contend that it was error for the jury to assess fault

against Brodie Sumler because he was not identified by name in the Answer to the Complaint.

The defendants assert that plaintiffs waived these issues by failing to include them in their

motion for new trial.

         T.R.A.P. 3(e) provides in pertinent part:

                 [T]hat in all cases tried by a jury, no issue presented for review
                 shall be predicated upon error in the admission or exclusion of
                 evidence, jury instructions granted or refused, misconduct of
                 jurors, parties or counsel, or other action committed or occurring
                 during the trial of the case, or other ground upon which a new
                 trial is sought, unless the same was specifically stated in a
                 motion for a new trial; otherwise such issues will be treated as
                 waived.



                                                   3
(emphasis added).

       It is evident that neither of these issues was presented to the trial court in plaintiffs’ post-

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

our review of the record, we find that the trial court did not err in ordering the independent

medical examination. The record also reveals that plaintiffs specifically requested a jury

instruction to determine the degree of fault of the non-party and thereby waived this alleged

error. These issues are without merit.

       The first issue the appellants raise is that no material evidence supported the jury’s

assignment of 20% negligence to Candy and Myranda. They argue that the record is devoid of

any proof of negligence on their part.

       “Passengers in motor vehicles have a duty to exercise reasonable care for their own

safety. They are expected to warn the driver of unseen dangers, to protest excessive speeds, and

to refrain from riding in an automobile operated by an intoxicated or reckless driver.”

Mansfield v. Colonial Freight Sys., 862 S.W.2d 527, 531 (Tenn. App. 1993). (citations

omittted) Although a passenger does not have the same duties as the driver of a vehicle, a

passenger is not without responsibility for his 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 driver one does not look to the circumstances as they appeared to the

guest-passenger; instead, negligence is to be determined by comparing the guest-passenger’s

conduct with that of an ordinarily prudent individual under like circumstances. Harvey v.

Wheeler, 57 Tenn. App. 642, 423 S.W.2d 283, 285 (Tenn. App. 1967). Further, “[t]he

reasonableness of a plaintiff’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 knew that Jessica was a fifteen

year old, unlicensed driver. The accident occurred on a rural road wide enough for vehicles to

pass in opposite directions, although, according to Chessor, not wide enough to permit safe

passing of a vehicle going in the same direction. Under these road conditions, there was

evidence that Chessor, at the time she lost control of her vehicle, was driving at a speed


                                                  4
approaching 55 miles per hour. The jury could have 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 plaintiffs’

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 second issue, 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 uncontroverted. In their fifth issue, appellants

argue that the jury’s verdict 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 rule or formula for computing damages in a

negligence case. Brown 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. Lunn v. Ealy, 176 Tenn. 374, 141

S.W.2d 893, 894 (1940) (citations omitted). The law cannot determine any fixed or certain

standard for measuring such damages, but must leave the amount of the judgment to the jury

guided by the facts and circumstances of the case. Yellow Cab Co. of Nashville 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 personnel as to when their complaints and pain

commenced and ceased. Any 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

not bound to accept the medical testimony.” Baxter v. Vandenheovel, 686 S.W.2d 908, 912

(Tenn. App. 1984) (citation omitted).


                                                  5
       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 for medical

expenses was made the Court said:

               We fail to find a reported Tennessee decision on the issue, but it
               has been held that a party is entitled to recover reasonable
               medical expenses for examinations, etc., in an effort to determine
               if personal injuries were sustained as a result of defendant’s
               negligence, even though it develops that the party suffered no
               personal injury.

Id. at 887 (citations omitted).

       Plaintiffs also complain that the jury 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 degree of credibility it deems proper. When that credibility
               is established and reflected in a verdict which is approved by the
               trial judge, appellate courts must give great 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, prejudice, or unaccountable

caprice.

        Accordingly, the judgment of the trial court is affirmed, 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 appellants.

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

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE


                                               6
____________________________________
DAVID R. FARMER, JUDGE




                                       7
