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



      1
      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


     2
       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



                                   3
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


                                  6
      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




                                 7
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).

                                  8
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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