Toombs v. Hayes , 256 Va. 193 ( 1998 )

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Stephenson, Senior Justice
ANGELA D. TOOMBS
OPINION BY
v. Record No. 971951 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
June 5, 1998
BRETT K. HAYES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
The sole issue in this appeal is whether the jury’s verdict
is inadequate as a matter of law.
I
Angela D. Toombs sued Brett K. Hayes to recover damages for
injuries Toombs sustained in a motor vehicle collision. Hayes
admitted liability for the accident. Following a jury trial on
June 13, 1997, to determine Toombs’ damages, the jury returned a
verdict in the amount of $23,282.84. Toombs moved the trial
court to set aside the verdict and order a new trial, claiming
that the verdict was inadequate as a matter of law. The court
overruled the motion for the reasons stated in its letter
opinion dated June 19, 1997, and, on June 25, 1997, the court
entered judgment on the verdict. Toombs appeals.
II
The motor vehicle collision occurred on September 14, 1994,
in the City of Richmond. Toombs was a front-seat passenger in
an automobile operated by Lori J. Curtis. The automobile
operated by Hayes struck the passenger side of the Curtis car.
The next day, Toombs received treatment at a hospital
emergency room. From September 19, 1994, to April 21, 1995,
Toombs was under the care of Dr. John T. Carmack, her family
physician. Dr. Carmack testified that, as a result of the
collision, Toombs suffers from chronic mechanical back strain,
synonymous with sacroiliac joint dysfunction, and muscle spasms
in the low back. He further testified that all of the treatment
he provided was necessary and appropriate.
On April 21, 1995, Dr. Carmack referred Toombs to Dr. Mark
E. DeBlois, an orthopedic surgeon. Dr. DeBlois testified that,
as a result of the collision, Tombs sustained a lumbar or
sacroiliac strain. The doctor ordered various tests and
physical therapy and prescribed pain medications and anti-
inflammatories. He also referred Toombs to Dr. Douglas A.
Wayne, a specialist in rehabilitation and physical medicine.
According to Dr. DeBlois, his treatment of Toombs was necessary,
reasonable, and directly related to her injuries received in the
accident.
Dr. Wayne testified that, as a result of the automobile
collision, Toombs suffers from sacroiliac dysfunction and
chronic strain of the lumbosacral supraspinous ligaments. The
doctor recommended that Toombs continue doing stretching
exercises and using a sacroiliac belt. He also prescribed
electrical stimulation to dull or mask Toombs’ pain.
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Toombs’ medical expenses totaled $18,838.52. As a result
of the collision, she incurred $4,444.32 in lost wages. She
testified that, as a result of the accident, she has had
constant low back pain, her once physically active lifestyle is
now restricted, sexual relations with her husband have been
affected, and she has had to postpone plans to have other
children.
III
The jury returned a verdict in the exact amount of Toombs’
medical expenses and lost wages. Toombs contends that the
verdict is inadequate as a matter of law. We agree.
Recently, in Bowers v. Sprouse, 254 Va. 428, 492 S.E.2d 637(1997), decided after the trial court ruled in the present case,
we held that "a jury award in a personal injury action which
compensates a plaintiff for the exact amount of the plaintiff’s
medical expenses and other special damages is inadequate as a
matter of law, irrespective of whether those damages were
controverted." Id. at 431, 492 S.E.2d at 639. This is so, we
said, because such a verdict "indicates that although the jury
found the plaintiff was injured and had incurred special
damages, the jury, for whatever reason, failed to compensate
[the plaintiff] for any other items of damage." Id., 492 S.E.2d
at 638. We noted that, "at a minimum, [the] plaintiff
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experienced pain, suffering, and inconvenience . . . and was
entitled to compensation for [those] elements of damage." Id.
Hayes attempts to distinguish the present case from Bowers,
relying upon certain handwritten notations on the verdict form.
The notations, immediately below the foreperson’s signature,
read:
18,838.53 Medical
4,444.32 Lost Wages
Pain + Suffering
These notations, however, had been scratched out. Below them
are the following notations:
1,482.68 Medical
1,204.09 Wages
________ Balance For Pain + Suffering
Hayes argues that "[t]he notations clearly demonstrate that the
jury awarded the plaintiff damages for her medical expenses,
earnings lost, pain suffered and inconvenience caused as a
result of [his] negligence."
We think reliance upon the notations would raise many
questions and require us to resort to speculation and
conjecture. We have no way of knowing who made the notations
and why or who, if anyone, authorized them. We can only
speculate whether the notations were approved by the jury. More
perplexing is why, if the jury intended to compensate Toombs for
pain, suffering, and inconvenience, the verdict is in the exact
amount of her special damages.
4
In Ingles v. Dively, 246 Va. 244, 253, 435 S.E.2d 641, 646
(1993), we addressed the issue respecting notations on a verdict
form. We stated that "[w]e share the virtually unanimous view
of courts across this country that a court should not engage in
speculation over the meaning of notations made by jury members
on the verdict form during the deliberative process."
Previously, however, in DeWald v. King, 233 Va. 140, 354
S.E.2d 60 (1987), we did consider certain notations on a verdict
form. A close reading of DeWald, though, indicates that
consideration of the notations was unnecessary and not essential
to our holding. Before making any reference to the notations,
we had already determined, based upon Rome v. Kelly Springfield
Tire Co., 217 Va. 943, 234 S.E.2d 277 (1977), and its progeny,
that the verdict in DeWald was inadequate as a matter of law.
Therefore, the reference to the notations on the verdict form
was merely dictum.
Accordingly, we adhere to what we said in Ingles.
Notations such as those in the present case, located below the
signed verdict, simply are not part of the verdict, and a court
should not speculate about their origin, purpose, or meaning.
We hold, therefore, that Bowers is controlling and that the
verdict in the present case is inadequate as a matter of law.
We will reverse the trial court’s judgment and remand the case
for a new trial on damages.
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Reversed and remanded.
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