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10/30/96 CHRIS BROWN v. TIMOTHY BAKER

October 30, 1996

CHRIS BROWN, PLAINTIFF-APPELLANT,
v.
TIMOTHY BAKER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Williamson County. No. 94-L-87. Honorable William H. Wilson, Judge, presiding.

The Honorable Justice Maag delivered the opinion of the court. Chapman and Welch, JJ., concur.

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Plaintiff obtained a jury verdict and judgment against defendant. Plaintiff filed a posttrial motion seeking a new trial on damages only. The motion was denied and plaintiff appealed.

The facts are as follows. Plaintiff, Chris Brown, filed a complaint against defendant, Timothy Baker, alleging that defendant negligently collided with plaintiff's automobile, causing property damage and personal injury.

Defendant filed a written admission of liability on the morning of trial.

For his damages, plaintiff claimed injuries to the person, pain and suffering, and medical expenses. Plaintiff alleged that he experienced pain in his neck and lower back. The treating physician testified that plaintiff had a herniated disc in his lower back.

Prior to trial, plaintiff's physician was deposed. Defense counsel asked on cross-examination whether the physician had treated plaintiff for a previous back problem prior to the accident. The physician replied affirmatively over plaintiff counsel's objection.

Before trial, defendant filed a motion in limine seeking to prevent plaintiff from limiting defendant's inquiry into the prior back injury. The court granted that portion of defendant's motion over plaintiff's objections. Consequently, defendant was able to inquire as to plaintiff's previous back injury. However, the record fails to indicate that defense counsel ever elicited testimony to suggest that plaintiff's current ailments were causally related to plaintiff's prior back problem.

Among the instructions tendered by the plaintiff was an instruction requesting damages for "physical injury to the body (not otherwise included in the elements of loss of a normal life or pain and suffering)." The court refused the instruction.

The jury awarded plaintiff $4,912.50. Plaintiff now appeals.

On appeal, plaintiff contends:

(1) The trial judge erred in allowing evidence of plaintiff's prior back injury;

(2) The trial judge erred in failing to give plaintiff's instruction on physical injury to the body (not otherwise included in the elements of loss of a ...


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