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RICE, et al.
June 9, 2000
Record No. 991880
JOHNNIE W. RICE, CO-ADMINISTRATOR OF THE ESTATE OF LEONA LYNN
RICE, DECEASED, ET AL.
CLIFFORD ANTHONY CHARLES
FROM THE CIRCUIT COURT OF DICKENSON COUNTY
Keary R. Williams, Judge
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER
In this wrongful death action, we address two separate issues:
(1) whether the circuit court erred by striking the
defendant’s contributory negligence defense because his
testimony in support of that defense was not corroborated as
required by Code ? 8.01-397, and (2) whether the circuit
court erred in denying the plaintiff’s motion for a new
trial on the issue of damages because the jury verdict was only
for the exact amount of the decedent’s funeral expenses.
Finding no error with regard to the first issue but concluding
that the jury verdict is inadequate as a matter of law, we will
reverse in part, and affirm in part, the judgment of the circuit
PRIOR PROCEEDINGS AND FACTS
Johnnie W. and Rita S. Rice (the Rices), co-administrators of
the estate of their daughter Leona Lynn Rice (Leona), filed a
motion for judgment in the circuit court against Clifford Anthony
Charles pursuant to Virginia’s Death by Wrongful Act
statute, Code ?? 8.01-50 through -56.
They alleged that Leona died as a result of injuries sustained in
a motor vehicle accident in which she was a passenger in a
vehicle driven by Charles. At trial, Charles admitted that he was
negligent and that his negligence was a proximate cause of the
accident and Leona’s death. However, Charles proceeded on a
defense of contributory negligence.
At the close of all the evidence, the Rices moved to strike
the defense of contributory negligence on the basis that there
was insufficient corroboration of Charles’ testimony, as
required under Code ? 8.01-397 (commonly referred to as the
"dead man’s statute"). The circuit court sustained
the motion and thereafter submitted the case to the jury on the
sole issue of damages. The jury then returned a verdict for the
Rices in the amount of $7,283.27 for "reasonable funeral
expenses." That figure represented the exact amount of
Leona’s funeral and related burial expenses incurred by the Rices.
The jury did not award any damages to the statutory
beneficiaries, Leona’s parents and her older sister Beverly
Rice McClanahan, for sorrow, mental anguish, and loss of solace. See
Code ?? 8.01-52 through -54.
The Rices subsequently moved to set aside the verdict and to
award a new trial on the issue of damages. The basis of their
motion was the fact that the jury had awarded damages only for
funeral expenses. The Rices argued that, by returning such a
verdict, the jury disregarded the court’s instructions and
the uncontroverted evidence. The circuit court denied the motion
and entered judgment for the Rices in accordance with the jury
verdict. This appeal followed.
In accordance with well-established principles, we review the
evidence in the light most favorable to the Rices, the prevailing
parties at trial. Morgen Indus., Inc. v. Vaughan, 252 Va.
60, 62, 471 S.E.2d 489, 490 (1996); Besser Co. v. Hansen,
243 Va. 267, 269, 415 S.E.2d 138, 139 (1992); Penn v. Manns,
221 Va. 88, 90, 267 S.E.2d 126, 127 (1980). On the evening of the
accident, Leona and Charles planned to see a movie but decided to
"go cruising around for a while" in Charles’
pickup truck before the movie started. During their drive, Leona
and Charles saw J.D. Baker on a "four-wheeler" in a
parking lot. They stopped and asked Baker to go with them to the
movie, and he agreed to do so. Leona and Charles then followed
Baker to his home where Charles and Baker subsequently decided to
buy beer instead of going to a movie. According to Charles, Leona
heard the discussion about purchasing beer and did not object to
the change in plans, but neither did she encourage or ask anyone
to buy beer.
Because all three of these individuals were under the age of
21 years and could not legally purchase alcoholic beverages, see
Code ? 4.1-305, they went to the home of Scott Mullins. The
parties stipulated that, upon arriving there, Charles asked
Mullins to buy beer for him. Mullins agreed to do so, but
McClanahan, who was dating Mullins at that time, objected. As a
result, McClanahan and Mullins "got into an argument,"
and Leona, Charles, and Baker left Mullins’ house while
McClanahan and Mullins were still arguing. According to
McClanahan, Leona said that she was "going straight
Charles testified that Leona then got back in Charles’
truck, and, together with Baker, they proceeded to a local
pharmacy where Charles talked to an individual who agreed to
purchase two cases of seven-ounce bottles of beer for Charles.
After getting the beer and putting it in the back of the truck,
Charles drove to Enochs Branch in Dickenson County, where he and
Baker drank some of the beer and discussed where to go from
there.  Leona
did not drink any beer. Eventually, all three of them got back in
Charles’ pickup truck. Leona sat in the middle between
Charles and Baker, and a case of beer was placed in the front
floorboard. Charles testified that he then drove toward Haysi,
and that, while he was driving, and in Leona’s presence,
Baker handed him additional beers to drink. According to Charles,
Leona did not try to stop him from drinking, did not request to
get out of the truck, and did not ask him to take her home, even
though they drove by her house on the way to Haysi. Although
Leona had her learner’s permit, see Code
? 46.2-334, she also did not offer to drive.
Continuing, Charles testified that, just before the accident
occurred, he stopped to use the bathroom and noticed that he had
a "buzz" and could feel the effect of the alcohol. At
that point, Charles had consumed five or six of the seven-ounce
bottles of beer in slightly less than two hours, and he had not
eaten lunch or dinner that day. However, Charles stated that he
had no trouble with his driving and did not believe that anyone
would have considered him intoxicated. Charles further testified
that he thought Leona would have told him if she had been
concerned for her safety.
The accident occurred as Charles was coming into a "steep
curve" too fast and lost control of his truck. Charles
stated that he thought he had already driven through that curve.
The truck flipped, and Charles and his two passengers were thrown
out of the truck. When Charles found Leona after the accident,
she was dead.
Approximately an hour and a half after the accident,
Charles’ blood alcohol content (BAC) measured .08 percent by
weight by volume. A forensic toxicologist, whom
Charles called to testify at trial, opined that Charles’ BAC
at the time of the accident could have been as low as .07 percent
or as high as .10 percent, and that a BAC in that range would
have adversely affected Charles’ judgment, attention,
concentration, and reaction time. However, the toxicologist also
testified that, considering Charles’ experience with
drinking large quantities of alcohol, he would not likely have
been "visibly drunk" to an objective observer.
Charles and Leona had been dating more than a year at the time
of her death and were engaged to be married. Charles testified
that Leona had ridden with him many times when he was drinking
and driving, and that they had argued about his drinking. At
Leona’s suggestion, Charles had entered a detoxification
center a few months before the accident, but he had left the
center before completing the detoxification program.
Several witnesses testified about the impact of Leona’s
death on her family. A neighbor of the Rices established that
Leona had a close relationship with her mother and that
Leona’s death upset the Rices. The neighbor added that Mrs.
Rice continues to suffer because of the death of her daughter and
is not dealing well with the loss. One of Leona’s friends
also testified that Leona had a good relationship with both
McClanahan and Mrs. Rice, and that the family was
"heartbroken" when Leona died.
Mrs. Rice testified that she had a "very special"
relationship with Leona and that, when she learned of
Leona’s death, she experienced "the awfullest feeling
that any person can have." Mrs. Rice also stated that
McClanahan and Leona were very close, and that Leona and Mr. Rice
likewise had a good relationship.
Mrs. Rice acknowledged that she did not encourage Leona’s
relationship with Charles when the couple began dating. Mrs. Rice
also stated that Leona had told her about Charles’ drinking
problem but had assured her parents that she would not ride in a
car with someone who had been drinking.
Mr. Rice also testified that he loved Leona very much, that he
spent a lot of time outdoors with her, and that his entire family
was very close. He stated that he felt hurt and anger when he
learned of Leona’s death, and that her loss will "hurt
[him] all [his] life." Mr. Rice further testified that
Leona’s death continues to affect his family, that his wife
cries continuously, and that he has trouble dealing with his
grief. He also testified that McClanahan has changed since
Leona’s death and is not as happy as she used to be.
McClanahan stated that she and Leona were close even though
she was four years older than Leona, and that she still suffers
over Leona’s death. Leona had told her about Charles’
problem with drinking alcoholic beverages. Consequently,
McClanahan had warned Leona not to ride with Charles after he had
been drinking, and, according to McClanahan, Leona assured her
that she would not do so. McClanahan related an incident just a
few months prior to Leona’s death when Leona had asked to
get out of a vehicle because other people had beer in the
This appeal presents two separate issues. First, the Rices
assign error to the circuit court’s denial of their motion
for a new trial on the issue of damages. In an assignment of
cross-error, Charles asserts that the circuit court erred by
striking his defense of contributory negligence because his
testimony in support of that defense was not corroborated. We
will address the assignment of cross-error first.
With regard to that issue, Charles contends that the circuit
court erroneously required corroboration of all the elements of
his contributory negligence defense. Instead, Charles claims
that, under Code ? 8.01-397, the court should only have
required "that [his] account of the accident be supported or
strengthened by the attendant circumstances or other
Elaborating, Charles argued orally that he had to prove three
elements of his contributory negligence defense: (1) that Leona
knew or should have known that it was dangerous to ride in a
motor vehicle being driven by an individual who was or had been
consuming alcoholic beverages; (2) that Leona knew or should have
known that Charles was drinking on the evening in question and
that his ability to drive was consequently impaired, and that
she, nevertheless, voluntarily rode with him while he was driving
his truck; and (3) that Leona’s presence in Charles’
truck at the time of the accident proximately caused her death.
Charles acknowledged that the "vast majority" of the
evidence with regard to the second element came solely from his
testimony. Nonetheless, he claims that,
based on the stipulation regarding the events at Mullins’
house and McClanahan’s testimony, it is reasonable to infer
that Leona heard the discussion about purchasing beer and the
argument that ensued between her sister and Mullins, and that she
therefore knew Charles was going to drink and drive that evening.
This same evidence, according to Charles, also supports his
testimony that he and Leona were together approximately an hour
and one-half before the accident. Finally, Charles posits that
his BAC level corroborates the fact that he had consumed alcohol
before the accident and that his ability to drive was impaired.
Thus, he claims that his testimony on this critical element of
his defense was sufficiently corroborated. We do not agree.
Code ? 8.01-397 provides that "[i]n an action by or
against a person who, from any cause, is incapable of testifying
. . . no judgment or decree shall be rendered in favor
of an adverse or interested party founded on his uncorroborated
testimony." The statute was designed, in part, "to
prevent a surviving party from having the benefit of his own
testimony where, by reason of the death of his adversary, the
latter’s personal representative is deprived of the
decedent’s version of the [facts]." Haynes,
Ex’x v. Glenn, 197 Va. 746, 752, 91 S.E.2d 433, 437
We do not question that certain aspects of Charles’
testimony concerning the events of the evening in question and
the circumstances of the accident were corroborated by other
evidence. However, the critical inquiry is whether his testimony
presented an essential issue that, if not corroborated, would
defeat his contributory negligence defense. See Hereford
v. Paytes, 226 Va. 604, 608, 311 S.E.2d 790, 792 (1984). We
have previously recognized, and we do so again in this appeal,
that "it is impossible to formulate a fixed rule as to the
corroboration necessary in every situation" because each
case must be decided on its particular facts. Id.
However, we have stated some general principles that are
pertinent here. "It is not necessary that the corroborative
evidence should of itself be sufficient to support a verdict, for
then there would be no need for the adverse or interested
party’s testimony to be corroborated." Brooks,
Adm’r v. Worthington, 206 Va. 352, 357, 143 S.E.2d 841,
845 (1965) (citing Burton’s Ex’r v. Manson, 142
Va. 500, 509, 129 S.E. 356, 359 (1925); Davies v. Silvey,
Adm’x, 148 Va. 132, 137, 138 S.E. 513, 514 (1927); Clay
v. Clay, 196 Va. 997, 1002, 86 S.E.2d 812, 815 (1955)).
"Corroborating evidence tends to confirm and strengthen the
testimony of the witness[,]" and it may come from other
witnesses as well as from circumstantial evidence. Hereford,
226 Va. at 608, 311 S.E.2d at 792. It is not essential that a
survivor’s testimony be corroborated on all material points.
Id.; Brooks, 206 Va. at 357, 143 S.E.2d at 845.
The corroboration, to be sufficient under the statute,
however, must at least tend, "in some degree, of its own
strength and independently, to support some essential
allegation or issue raised by the pleadings
[and] testified to by the [surviving] witness . . .
which allegation or issue, if unsupported, would be
fatal to the case."
Hereford, 226 Va. at 608, 311 S.E.2d at 792 (quoting Burton’s
Ex’r, 142 Va. at 508, 129 S.E. at 359). (First emphasis
added.) Accord Diehl, Adm’x v. Butts, 255 Va.
482, 489, 499 S.E.2d 833, 838 (1998).
In the present case, we view these principles in the context
of the necessary elements of Charles’ contributory
negligence defense. "[A] guest may be guilty of contributory
negligence if [the guest] knows or reasonably should know that
[the] driver had been drinking intoxicating liquor[] to an extent likely to
affect the manner of . . . driving and voluntarily
continues as a passenger after a reasonable opportunity to leave
the automobile." Meade v. Meade, 206 Va. 823, 827,
147 S.E.2d 171, 174 (1966) (citing Seaboard Air Line Ry. Co.
v. Terrell, 149 Va. 344, 354-55, 141 S.E. 231, 235 (1928); Yorke
v. Maynard, 173 Va. 183, 188, 3 S.E.2d 366, 369 (1939); Bates,
Adm’x v. Thompson, 200 Va. 501, 506, 106 S.E.2d 728, 732
(1959)). It is not sufficient merely to establish that the driver
of an automobile has been drinking and that the passenger knew
that fact. Meade, 206 Va. at 827, 147 S.E.2d at 174. The
evidence must also prove that the driver’s ability to
operate the vehicle was impaired because of the consumption of
alcoholic beverages, that the passenger knew, or in the exercise
of ordinary care should have known, of the driver’s impaired
ability, and that the passenger nevertheless entered or continued
to ride in the vehicle. Id.
Thus, we conclude that the question whether Leona knew or
should have known that Charles’ ability to drive was
impaired because of his consumption of beer and she,
nevertheless, chose to continue to ride with him is the sole
essential issue raised by Charles’ testimony regarding his
contributory negligence defense, which, if unsupported by
corroborating evidence, is fatal to his defense. See Hereford,
226 Va. at 608, 311 S.E.2d at 792; see also Vaughn
v. Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130 (1994)
(holding that Code ? 8.01-397 required corroboration of
sole essential allegation on which claim was based); Ratliff,
Adm’x v. Jewell, 153 Va. 315, 326, 149 S.E. 409, 412
(1929) ("witness need not be corroborated on all material
points, but must be supported on some essential fact whose
establishment is necessary to sustain the judgment"). We
find no such corroborating evidence in the record.
Even if we accept the stipulation and McClanahan’s
testimony about the events at Mullins’ house as
corroboration of Charles’ testimony that Leona knew about
the plans to purchase beer, there nevertheless is not even a
scintilla of evidence that "tends to confirm and
strengthen" his assertion that Leona knew or should have
known that his ability to drive was impaired. Hereford,
226 Va. at 608, 311 S.E.2d at 792. Instead, we find evidence
supporting a different conclusion. Charles testified that, even
though he felt a "buzz" when he stopped to use the
bathroom, he did not have any trouble with his driving and did
not believe anyone would view him as intoxicated. Furthermore,
the toxicologist stated that Charles’ degree of intoxication
would not have been apparent to an objective observer because of
his history of excessive drinking. Thus, rather than having
corroborating evidence that Leona knew that Charles’ ability
to drive was impaired that evening, the record actually contains
evidence indicating the opposite. Nor is there evidence to
corroborate Charles’ testimony that Leona voluntarily
continued to ride in his truck with him even though she allegedly
knew the extent of his drinking on that evening, and never asked
to get out of the truck or to go home.
Thus, we conclude that, while corroboration on all material
points of Charles’ contributory negligence defense is not
necessary, the essential issue raised by his testimony remains
unsupported. Hence, the circuit court did not err in striking
Charles’ contributory negligence defense and submitting the
case to the jury solely on the issue of damages. Generally, when
there is more than a scintilla of corroborating evidence, the
question whether testimony has been sufficiently corroborated is
an issue for the jury to resolve. Brooks, 206 Va. at 357,
143 S.E.2d at 845 (citing Timberlake’s Adm’r v. Pugh,
158 Va. 397, 403, 163 S.E. 402, 404 (1932)). However, for the
reasons already stated, the circuit court correctly determined
that Charles’ testimony was not corroborated as a matter of
law. See Whitmer v. Marcum, Adm’x, 214 Va. 64,
68, 196 S.E.2d 907, 910 (1973)("corroboration need not
always present a jury issue").
Since Charles admitted his liability and the court properly
struck his defense of contributory negligence, the only issue for
the jury’s consideration was that concerning the question of
damages. Thus, we turn to the Rices’ assignment of error
regarding the amount of damages awarded.
The Rices argue that the jury verdict in the exact amount of
Leona’s funeral expenses was inadequate as a matter of law
because the verdict failed to compensate the statutory
beneficiaries for the non-monetary elements of damage, such as
sorrow, mental anguish, and loss of solace, despite
uncontroverted evidence with regard to such damages. In response,
Charles contends that, because the jury was instructed that it
"may" consider items of non-economic damages but
"shall" award damages for funeral expenses, the verdict
is proper and supported by the evidence. We agree with the Rices.
In Bowers v. Sprouse, 254 Va. 428, 492 S.E.2d 637
(1997), this Court 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. Similarly, in Johnson, Adm’r v. Smith,
241 Va. 396, 403 S.E.2d 685 (1991), we examined the adequacy of a
damage award in a wrongful death action. In Johnson, the
verdict represented only about two years of the decedent’s
income for the widow, and only slightly more than one year of the
decedent’s income for each of two children. The verdict did
not include any sum for sorrow, mental anguish, and solace for
the decedent’s widow and children, nor any sum for the
children’s lost services and protection. Id. at 399,
403 S.E.2d at 686. We found that verdict
"incomprehensible" and concluded that "the jury
must have misconceived or misunderstood the facts or the
law." Id. at 400-01, 403 S.E.2d at 687. Accord
Hall, Adm’x v. Hall, 240 Va. 360, 365, 397 S.E.2d
829, 832 (1990).
We reach the same conclusion in this case. The jury verdict
for the exact amount of Leona’s funeral expenses was
inadequate as a matter of law because it failed to compensate her
statutory beneficiaries for any other items of damage despite the
fact that the court instructed the jury that Charles was liable
for Leona’s death and any damages suffered by her parents
and her sister. By returning a verdict for only the amount of the
funeral expenses, the jury demonstrated a misunderstanding of
either the law or the facts, or both. Furthermore, the evidence
at trial clearly supported the conclusion that Leona’s
statutory beneficiaries experienced sorrow, mental anguish, and
loss of solace as a result of Leona’s death. Thus, they were
entitled to compensation for these elements of damage. See
Bowers, 254 Va. at 431, 492 S.E.2d at 638.
Our conclusion is not changed by the fact that the circuit
court instructed the jury that it "shall award
damages for . . . reasonable funeral expenses" but
"may consider . . . any sorrow, mental
anguish, and loss of solace suffered by the beneficiaries."
(Emphasis added.) We agree with Charles that this instruction is
the law of this case because the circuit court gave it to the
jury without any objection by the Rices, see King v.
Sowers, 252 Va. 71, 77, 471 S.E.2d 481, 484 (1996), and that
the instruction does not incorporate the precise language of Code
? 8.01-52. However, we do not accept Charles’ argument
that the jury followed the instructions given to it and elected,
as it was told it could by use of the term "may," not
to award any damages for non-economic losses.
The damage instruction given to the jury in Bowers also
used the term "may" with regard to the elements of
damage to be considered by the jury. 254 Va. at 431 n.3, 492
S.E.2d at 638 n.2. Notwithstanding that fact, we did not approve
the verdict, but instead concluded that the jury verdict for the
exact amount of the plaintiff’s medical expenses and other
special damages in that case was inadequate as a matter of law. Id.
at 431, 492 S.E.2d at 639. Similarly, the use of the term
"may" rather than "shall" with regard to
damages for sorrow, mental anguish, and loss of solace does not
justify the jury’s failure in this case to compensate the
statutory beneficiaries for any other items of damage.
For these reasons, we will affirm the judgment of the circuit
court in part, reverse in part, and remand for a new trial solely
on the issue of damages. See Rawle v. McIlhenny,
163 Va. 735, 748, 177 S.E. 214, 220 (1934) (when evidence is
insufficient to support verdict finding defendant not liable, new
trial is limited to question of damages).
Affirmed in part, reversed in part, and
 The purpose of the Death by
Wrongful Act statute is to compensate a decedent’s statutory
beneficiaries for their loss resulting from the decedent’s
death. Wilson v. Whittaker, 207 Va. 1032, 1036, 154 S.E.2d
124, 128 (1967).
 The funeral home bill was
$5,287.32, and the charge for the cemetery monument was
$1,995.95, for a total of $7,283.27. Hereinafter, the funeral and
related burial expenses are referred to as "funeral
 Except for the stipulation
regarding the events at Mullins’ house and McClanahan’s
testimony about the same incident, the evidence concerning
Charles’ and Baker’s purchase and consumption of beer
before the accident as well as the details of how the accident
occurred are found only in Charles’ testimony. Baker did not
testify at trial.
 Charles’ BAC was
documented by a Certificate of Analysis from the Commonwealth of
Virginia Department of Criminal Justice Services, Division of
 Leona’s driver’s
education teacher also testified that he had instructed
Leona’s class about "zero tolerance," i.e., not to
ride with a driver under the age of 21 who has consumed any
 Charles established the first
element with evidence other than his testimony, and he admitted
the third element, that his negligence proximately caused the
accident and Leona’s death.
 While the term
"intoxicating liquor" is not defined in the Code, it
appears to encompass beer, as well as wine, spirits, alcohol, and
other such substances. See Code ? 4.1-100 (defining
"[a]lcoholic beverages" as including all
those substances, and further defining "[i]ntoxicated"
with reference to "alcoholic beverages").
 The entire jury instruction on
this issue states the following:
If you find your verdict for the plaintiffs, then in
determining the damages to which they are entitled, you may
consider, but are not limited to, any of the following which you
believe by the greater weight of the evidence were caused by the
negligence of the defendant as damages suffered by the
any sorrow, mental anguish, and loss of solace suffered by the
beneficiaries. Solace may include society, companionship,
comfort, guidance, kindly offices, and advise [sic] of the
If you award damages, you may distribute these damages among
Rita Sue Rice, Johnnie W. Rice, and Beverly Rice McClanahan.
If you find your verdict for the plaintiff[s], you shall award
(1) reasonable funeral expenses.
9 Code ? 8.01-52 states that a verdict in a wrongful
death action "shall include, but may not be limited to,
damages for the following:
1. Sorrow, mental anguish, and solace which may include
society, companionship, comfort, guidance, kindly offices and
advice of the decedent;
. . . [and]
4. Reasonable funeral expenses . . . .