ALLSTATE INS. CO.
January 8, 1999
Record No. 980386
ALLSTATE INSURANCE COMPANY
RONALD P. WHITE
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY
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.
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 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
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
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 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.
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, 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
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.
Reversed and final judgment.
 White filed a notice of appeal from
the judgment in favor of Steele, but did not pursue that appeal.
 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.