Shepherd v. Smith

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., Carrico, 1 S.J.
CLAYTON LEE SHEPHERD
OPINION BY
v. Record No. 021148 JUSTICE DONALD W. LEMONS
February 28, 2003
SAMANTHA SMITH
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Harry T. Taliaferro, III, Judge
In this appeal, we consider whether the trial court erred
by granting the defendant’s motion to set aside a plaintiff’s
verdict on the ground that the verdict was inadequate as a
matter of law because it was less than the plaintiff’s
uncontroverted special damages.
I. Facts and Proceedings Below
On July 20, 2000, Clayton Lee Shepherd (“Shepherd”) filed a
motion for judgment in the Circuit Court of Westmoreland County
alleging that on September 11, 1999 he was struck and injured by
an automobile driven by Samantha Smith (“Smith”) as he walked
down McKiney Boulevard in Colonial Beach, Virginia. Shepherd
claimed $750,000 in damages, including approximately $85,000 in
medical expenses and $40,000 in lost wages. In her grounds of
defense, Smith denied negligence and asserted that Shepherd was
contributorily negligent “and/or assumed the risk of his
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Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date of
his retirement on January 31, 2003.
injuries.” Upon the evidence presented, the jury returned a
verdict in Shepherd’s favor in the amount of $65,000.
In post-verdict motions, Smith moved to set aside the jury
verdict and argued that “as a matter of law, a verdict less than
the uncontroverted special damages must be set aside.”
Additionally, Smith moved to strike plaintiff’s evidence and
enter judgment for Smith. In response, Shepherd maintained that
the evidence was sufficient to support the jury’s verdict that
Smith was negligent and that Shepherd was not guilty of
contributory negligence, and further asserted that a “defendant
lacks standing to object” to the inadequacy of a verdict in
favor of the plaintiff.
The trial court’s order of August 3, 2001 2 stated:
Upon the finding that there was evidence to
support a verdict for either party, that the
jury’s verdict was inadequate as a matter of law,
and that defendant has standing to complain about
the inadequacy of the verdict, it is ORDERED that
the jury’s verdict rendered May 1, 2001 is set
aside as inadequate as a matter of law; it is
further ORDERED that a new trial will be held on
all issues; and it is finally ORDERED that
defendant’s motion to strike plaintiff’s evidence
is denied.
At the subsequent retrial, a jury returned a defense
verdict and awarded nothing to Shepherd. Shepherd appeals the
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The Honorable Joseph E. Spruill, Jr. presided over the
first trial and ordered that the jury’s verdict be set aside and
that a new trial be held. The Honorable Harry T. Taliaferro,
III, presided over the second trial.
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adverse judgment of the trial court and assigns error as
follows:
The trial court erred by setting aside a jury
verdict for an amount less than the special
damages upon the motion of the defendant. The
defendant lacks standing and authority to object
to a verdict of less than the special damages and
did not establish the basis for a verdict of less
than the special damages. Only the plaintiff may
raise such an issue.
II. Analysis
At the outset, it is important to state what this case does
not involve. The issue before the Court does not affect in any
manner our jurisprudence concerning a plaintiff’s request to set
aside a jury verdict upon allegations that it is inadequate as a
matter of law, nor does this case involve an assertion that the
amount of the damages award shows that the award was the product
of misapplication of the law. This case involves the narrow
question whether a defendant can challenge a jury’s verdict for
a plaintiff on the sole grounds that it is inadequate as a
matter of law. Both parties focus primarily upon two opinions
of this Court, Miles v. Rose, 162 Va. 572, 175 S.E. 230 (1934),
and Short v. Long, 197 Va. 104, 87 S.E.2d 776 (1955), in support
of their contentions.
The case of Miles v. Rose involved consolidation of two
related personal injury actions. R. L. Miles, Jr. (“Miles”) was
the driver of one motor vehicle that collided with another motor
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vehicle operated by T. E. Denton (“Denton”). Franklin H. Rose
and Harold Hodges were Denton’s passengers at the time of the
collision. The passengers each brought suit against Miles and
Denton for their personal injuries arising out of the collision.
Although service was obtained upon Denton, Denton filed no
responsive pleadings and did not participate in the trial of
either case. Miles filed responsive pleadings denying
negligence on his part and pleading contributory negligence of
the plaintiff in each case. Additionally, we characterized
Miles’ pleadings as “inferentially” pleading that Denton was
guilty of the negligence which proximately caused the accident.
The two cases were tried by the same jury upon the same evidence
and upon the same instructions. We observed that the cases were
tried against Miles only, not Denton. Miles, 162 Va. at 575-80,
175 S.E. at 231-33.
Instructions were given to the jury on the subject of joint
enterprise, imputable negligence, and contributory negligence.
Id. at 581-82, 175 S.E. at 233-34. Although we noted that
plaintiffs were entitled to judgment by default against Denton,
he was not present at trial and did not participate in the
proceedings. Id. at 592, 175 S.E. at 238. Nonetheless,
Denton’s “presence” and the issue of his potential negligence
permeated the trial. For example, the trial court instructed
the jury that
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if they believe from the evidence that defendant
R. L. Miles, Jr., was guilty of negligence which
was a proximate cause of the accident, yet, if
they further believe from the evidence that the
driver of the Denton car was likewise guilty of
negligence contributing to the accident, and that
at the time thereof the plaintiff and said driver
were using the automobile for their mutual
pleasure and advantage, and were engaged in a
joint enterprise, then any negligence of the
driver is imputable to the plaintiffs, and if it
in the slightest degree contributed to the
accident and injuries to the plaintiff, or either
of them, such one cannot recover of the defendant
R. L. Miles, Jr.
Id. at 582, 175 S.E. at 234.
Additionally, the court instructed the jury “that if they
believe from the evidence that the proximate cause of the injury
suffered by these plaintiffs was solely due to the negligence of
the driver of the car in which they were riding, then they
should find for the defendant, R. L. Miles, Jr.” Id. at 581-82,
175 S.E. at 234. Miles objected to the last instruction
alleging that it was misleading the jury by “inferentially”
excluding other theories upon which a defense verdict could be
rendered. Id. at 582, 175 S.E. at 234. Upon consideration of
the evidence, the jury rendered a verdict of $750 in favor of
Hodges against Miles and $750 in favor of Rose against Miles.
Id. at 583, 175 S.E. at 234.
Miles appealed and maintained, among other assignments of
error, that the trial court erred by refusing to set aside the
verdict in favor of each plaintiff because “the smallness of the
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verdicts in these cases indicates either (1) that ‘the jury
recognized that the plaintiffs were not entitled to any recovery
against Miles’ or (2) that the jury applied the doctrine of
comparative negligence . . . .” Id. at 595, 175 S.E. at 240.
Considering whether the defendant could request the trial court
to set aside a verdict and order a new trial because of an
inadequate verdict to the plaintiff, we stated:
The general rule is that in a personal
injury case a verdict against a defendant will
not be set aside on his motion on the ground that
the damages awarded are less than the plaintiff
was entitled to on the evidence. The rationale
of the rule is that the defendant could not have
been damaged by such a verdict.
Id. at 595-96, 175 S.E. at 240.
However, the unusual circumstances presented by the case
justified an exception to the general rule, and we stated the
following:
When, as here, A and B are sued jointly for
personal injuries alleged to have been caused by
their independent but concurring negligence, and
the great preponderance of the evidence tends to
show that A was, and B was not, guilty of
negligence which was a proximate cause of the
injuries, if the jury returns a verdict against B
alone for a sum plainly greatly less than would
appear to be a reasonable compensation for the
injuries which the uncontradicted evidence shows
the plaintiff suffered, the smallness of the
verdict casts serious suspicion on the integrity
of the finding by the jury that B was liable.
Particularly is this true where, as in this case,
the plaintiff’s counsel in his argument invited
and urged the jury to exculpate A and fix the
whole blame on B for the manifest purpose of
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escaping the possible imputation of A’s
negligence to his client.
Id. at 596, 175 S.E. at 240.
We considered the issue again in the case of Short v. Long.
This case involved a collision between an automobile and a truck
wherein the driver of the automobile sued for personal injuries.
The truck driver denied negligence, asserted contributory
negligence, and counter-claimed for his own personal injuries
and property damage to his truck. The jury denied a recovery to
the plaintiff, Short, and awarded the defendant, Long, $400 in
damages on his counter-claim. Short, 197 Va. at 105, 87 S.E.2d
at 777.
Among other assignments of error, Short argued that the
trial court erred by not setting aside the verdict and granting
a new trial because
[t]he verdict of $400 is so inadequate and
disproportionate to the damages proved by Long as
to show that the jury ignored the court’s
instructions and did not make a finding upon the
issue of whose negligence caused the collision
but undertook to apportion the damages between
the parties without consideration of liability.
Id. We stated that there was “credible evidence to support
either litigant’s version” of how the collision occurred and
further stated that it was within the jury’s province to
determine the question of each party’s negligence. Id. at 109,
87 S.E.2d at 780. Upon the question whether Short could
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complain of an inadequate verdict in favor of Long, we cited
Miles for the general rule and further stated that in Miles
“there were unusual circumstances that prompted the Court” to
create the exception to the general rule. Id. at 110, 87 S.E.2d
at 780. Finding no such “unusual circumstances,” we affirmed
the judgment in favor of Long. Id. at 111, 87 S.E.2d at 780.
In the case before us, it is readily apparent that the
trial court, upon the urging of Smith, transmuted the narrow
exception recognized in Miles into a general rule. In doing so,
the trial court erred.
Smith cites a series of cases which she contends support
her position that a defendant has the right to have a verdict
set aside and a new trial ordered when a plaintiff’s verdict is
inadequate. 3 What Smith fails to recognize is that each of the
cases cited involves a plaintiff’s request to set aside a
plaintiff’s verdict on the grounds that it was inadequate. None
of the cases remotely stands for the proposition that a
defendant may complain of a plaintiff’s inadequate jury award.
Today, we reiterate that absent unusual circumstances such
as those we found in Miles, in an ordinary and usual action in
tort, the trial court may not set aside a verdict and order a
3
Walker v. Mason, 257 Va. 65, 510 S.E.2d 734 (1999); Bowers
v. Sprouse, 254 Va. 428, 492 S.E.2d 637 (1997); Bradner v.
Mitchell, 234 Va. 483, 362 S.E.2d 718 (1987); Rawle v.
McIlhenny, 163 Va. 735, 177 S.E. 214 (1934).
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new trial based upon a motion by the defendant claiming that the
verdict for the plaintiff was inadequate. Accordingly, we will
reverse the judgment order dated March 29, 2002 rendering
judgment in favor of Smith and enter final judgment upon the
first jury verdict in favor of Shepherd in the amount of $65,000
with costs and interest from May 1, 2001.
Reversed and final judgment.
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