Present:   All the Justices

ALLSTATE INSURANCE COMPANY

v.   Record No. 980386    OPINION BY JUSTICE ELIZABETH B. LACY
                                      January 8, 1999
RONALD P. WHITE

            FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
                      John R. Cullen, Judge

      On the evening of December 24, 1994, Ronald P. White was

a passenger in a truck driven by Ronald C. Steele, Jr.   The

truck was traveling westbound on Route 53, a two–lane highway

in Fluvanna County.   White was severely injured when the truck

left the highway, traveled along a ditch line until it struck

a rock, became airborne, and landed upside down between two

trees.   White and Steele were hospitalized.

      White filed a motion for judgment against Steele and an

unidentified John Doe, seeking recovery for the damages he

sustained in the accident.    White alleged that Steele was

reckless and negligent for failing to maintain proper control

of his vehicle and that John Doe negligently drove his vehicle

across the center of the highway, forcing Steele's vehicle off

the highway.   White also served Allstate Insurance Company

(Allstate) pursuant to Code § 38.2-2206(E) because he was an

insured under the uninsured motorist provisions of a motor

vehicle liability policy issued by Allstate.
     The jury returned a verdict in favor of both defendants.

On White's motions and over Allstate's objections, the trial

court set aside the verdict as to Doe, entered judgment

against Doe on the issue of liability pursuant to Code § 8.01-

430, and dismissed the motion for judgment against Steele.

The parties agreed to submit the issue of damages to the trial

court.   Relying on the evidence produced at trial, the trial

court entered judgment against Doe in the amount of $250,000

with interest.   Allstate appealed, seeking reinstatement of

the jury verdict in Doe's favor or, in the alternative, a new

trial on the issues of Doe's liability and damages. 1

     On appeal, Allstate first contends that the trial court

erred in setting aside the jury verdict because the jury

reasonably could have inferred from the evidence that either

Doe did not exist or that he had not been negligent.    In

reviewing Allstate's contention, we apply familiar principles.

Code § 8.01-430 authorizes a trial court to set aside a jury

verdict if it is plainly wrong or without credible evidence to

support it.   Lane v. Scott, 220 Va. 578, 581, 260 S.E.2d 238,

240 (1979).   On appeal, the judgment of a trial court setting

aside a jury verdict will be sustained if the record contains

no credible evidence to support the jury verdict, viewing the


     1
       White filed a notice of appeal from the judgment in
favor of Steele, but did not pursue that appeal.

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facts and all reasonable inferences which may be drawn from

the facts in the light most favorable to the party receiving

the jury verdict.   Rogers v. Marrow, 243 Va. 162, 166, 413

S.E.2d 344, 346 (1992).

     The evidence relating to the cause of the accident comes

primarily from White's testimony.    Although Steele pled guilty

to a charge of improper driving in connection with the

incident, he has no memory of the accident.   There were no

other witnesses to the accident.

     At the time of the accident, it was raining and dark and

the road was wet.   The posted speed limit was 55 miles per

hour; White testified he thought Steele was driving 50 to 55

miles per hour.   According to White, as Steele's vehicle came

out of a curve, White suddenly saw the glare of the headlights

of a vehicle traveling east that "looked like" it was coming

toward them in the westbound lane.    White testified that, to

avoid a collision, Steele veered to the right, causing the

truck to leave the highway, become airborne and eventually

land upside down between two trees.   White could not estimate

the speed of the Doe vehicle, did not know whether it was a

truck or a car, or where it was located on the roadway.

     White also testified that he had been drinking beer

before he and Steele got into the truck.   He testified that he

could not remember precisely how many beers he had consumed in


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the two-hour span before the accident, but that it might have

been as many as three.   The state trooper who investigated the

accident testified that there were no skid marks or debris on

the highway.

     According to Allstate, White's admitted consumption of

alcohol supports a conclusion that White's perception of the

details surrounding the accident was impaired by the alcohol

he had consumed and, thus, that his testimony was not

reliable.   White's inability to identify anything about the

Doe vehicle and Steele's guilty plea to improper driving,

Allstate asserts, entitled the jury to conclude that there was

no vehicle driven by a John Doe and that the accident was not

caused by the negligence of an unidentified motorist.   Either

conclusion required a verdict in favor of Doe, and, therefore,

Allstate concludes, the trial court erred in setting aside the

jury verdict in favor of Doe.

     Citing Ragland v. Rutledge, 234 Va. 216, 219, 361 S.E.2d

133, 135 (1987), White responds that his testimony regarding

the cause of the accident and the existence of a vehicle

driven by John Doe was positive, uncontroverted, and credible

and, therefore, could not be disregarded by the jury.

However, that principle is not applicable in this case.    It is

true that there was no positive testimony controverting

White's statements regarding the events surrounding the


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accident.   The evidence relied upon by Allstate addresses the

reliability of White's testimony.    As White notes, the trial

judge determined that White had "a reputation for truth and

honesty."   The evidence relating to impaired perception

because of alcohol consumption does not impeach White's

character trait for telling the truth.   Such evidence affects

the probative value of White's testimony by suggesting that,

at the time of the accident, his perception of the details and

events may have been impaired, and, therefore, that the

testimony was not reliable. 2

     Having reviewed the record, we agree with Allstate and

conclude that the trial court erred in setting aside the jury

verdict.    Based on the evidence recited above, the jury was

entitled to infer that White's perception of the circumstances

of the accident was impaired.

     Furthermore, assuming that there was a Doe vehicle, there

is no direct evidence that Doe was negligent.   The only

evidence bearing on the issue of Doe's negligence was White's

statement that, as the Steele vehicle came around the curve,


     2
       White also argues that the evidence of his alcohol
consumption was not admissible because Allstate failed to
provide a proper foundation showing the level of consumption
which would result in impairment of White's perception.
However, while White objected to questions relating to alcohol
consumption, that objection was overruled and White has not
assigned cross-error to that ruling. Therefore, we treat the
evidence as properly before the jury.

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White saw the glare of the Doe vehicle's headlights, and "[i]t

looked like he was on our side of the road considerably."

(Emphasis added.)   Although there was an accident, there was

no collision between two vehicles which could provide evidence

of the location of the Doe vehicle.   Nor were there any skid

marks or debris identifying the location of the Doe vehicle.

And finally, White's statement regarding the location of the

Doe vehicle was subject to the inference of impaired

perception stemming from White's alcohol consumption.

     As noted by the trial court in refusing White's motion to

strike Allstate's evidence and to find Doe liable as a matter

of law, it was "a matter for the jury to decide whether or not

there — there was a John Doe driver at that particular scene

. . . and, if so, what came from that."   We conclude that

there was evidence in this record to support a jury verdict in

favor of John Doe either because there was no John Doe vehicle

or because White failed to establish that John Doe was

negligent and that his negligence resulted in White's

injuries.

     Accordingly, we will reverse the judgment of the trial

court and enter final judgment reinstating that portion of the

jury verdict in favor of John Doe.    In light of this

determination, we need not address Allstate's remaining

assignments of error.


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    Reversed and final judgment.




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