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WALKER v. MASON (59791)


WALKER v. MASON


January 8, 1999
Record No. 980345

MICHAEL J. WALKER

v.

DEWAYNE K. MASON

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY


Record No. 980568

TAMARA S. WILLIAMS

v.

SHONA R. SIMMONS

FROM THE CIRCUIT COURT THE CITY OF RICHMOND
Walter W. Stout, III, Judge


Record No. 980254

DEVEATA ANITA WALKER

v.

JACK CREASY

FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge


The three appeals addressed in this opinion
involve the proper application of principles for determining
whether a jury verdict is inadequate as a matter of law. The
trial court in each of these cases set aside the jury verdict
relying on the principle enunciated in Bowers v. Sprouse,
254 Va. 428, 492 S.E.2d 637 (1997).

In Bowers, the jury returned a verdict
in the exact amount of the special damages introduced by the
plaintiff. The Court in Bowers reversed the trial court’s
denial of plaintiff’s motion to set aside the verdict, stating
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. The
basis of this rule is that a verdict for the exact amount of the
plaintiff’s medical expenses and special damages indicates that
although the jury found the plaintiff was injured and had
incurred special damages, the jury, for whatever reason, failed
to compensate the plaintiff for any other items of damage. Id.,
492 S.E.2d at 638.

This bright line rule is limited, however, to
those factual situations in which the jury verdict is identical
to the full amount of the special damages. The rationale
underlying the rule does not extend to an award which deviates
from the amount of all the special damages claimed, even if the
amount of the verdict corresponds to an identifiable portion of
the special damages. In such case, the bright line rule of Bowers
cannot be applied.

I. Walker v. Mason, Record
No. 980345

In Walker v. Mason, the plaintiff
claimed special damages of $4,431. The jury returned a verdict in
the amount of $230, an amount equal to the amount of the hospital
emergency room bill. The trial court set the verdict aside,
concluding that, even though the verdict was not in the exact
amount of all the special damages presented, the verdict was in
the exact amount of a portion of the special damages, and that,
under Bowers, "you just cannot have a verdict for the
amount of specials." The trial court, applying the additur
statute, Code Sect. 8.01-383.1(B)(1994)(amended 1998), entered
judgment for $7,730.

The trial court’s application of Bowers
was error for reasons previously stated. The case of Doe v.
West
, 222 Va. 440, 281 S.E.2d 850 (1981), is instructive
under the circumstances presented here. In Doe, the
plaintiff sought to recover lost wages of $200 per week for 14
weeks. The jury returned a verdict for $2,800 which the trial
court calculated as the exact amount of the lost wages claimed by
the plaintiff. The trial court set aside the verdict, finding
that it did not include any other items of damages that the jury
was required to consider under the instructions given. In
reversing the trial court, the Court in Doe stated that

[t]he failure of the jury to return, from
conflicting evidence, a verdict in a greater amount than the
trial judge’s calculation of West’s lost wages does not
justify the inference that the jury failed to consider all
the elements of damages permitted under the court’s
instruction. We cannot say that the verdict was based upon an
unreasonable interpretation of the evidence, which was
susceptible to different findings. Under these circumstances,
the trial court should not have set aside the first verdict. See
May v. Leach, 220 Va. 472, 473-74, 260 S.E.2d
456, 457 (1979); Brown v. Huddleston, 213 Va. 146,
147, 191 S.E.2d 234, 235 (1972).

222 Va. at 446, 281 S.E.2d at 853.

As in Doe, whether the verdict in Walker
v. Mason
was inadequate depends on the evidence presented.
Here, the record shows that the extent of Walker’s injuries was
controverted. His doctor, Leon J. Brown, Jr., testified that,
other than muscle spasms in Walker’s neck, there were no injuries
which could be verified objectively. Mason’s injuries, as he
described them to Dr. Brown, were pain and tenderness in his
neck, back, and knee. There were no contusions or swelling in the
knee. Dr. Brown prescribed an anti-inflammatory medication, a
muscle relaxer, an analgesic cream and use of moist heat at home.
Dr. Brown eventually referred Mason to an orthopedic surgeon
based on Mason’s complaints about his knee. Mason saw the surgeon
on two occasions over the course of two months. Physical therapy
was also prescribed, although Mason testified that he had missed
some of the appointments. The record also reflects that Mason was
playing basketball during this period.

This record is susceptible to varying
interpretations regarding the extent of the injuries and expenses
proximately caused by the automobile accident and, therefore, we
cannot say that the verdict was based on an unreasonable
interpretation of the evidence or a failure to consider elements
of damages under the court’s instructions. Accordingly, we will
reverse the judgment of the trial court and reinstate the jury
verdict in the amount of $230.

II. Williams v. Simmons,
Record No. 980568

In Williams v. Simmons, the plaintiff
claimed special damages of medical bills and lost wages totaling
$1,386. The jury returned a verdict of $560, the amount of the
lost wage claim. In reviewing the adequacy of the verdict, the
trial court stated that the amount of the jury verdict
constituted a finding by the jury that the plaintiff was
"entitled to be compensated for lost wages," which then
"necessitated its finding that the plaintiff had suffered
from her injuries." Citing Bowers, the trial court
concluded that, because the jury found the injury compensable but
did not return a verdict reflecting the plaintiff’s pain,
suffering, inconvenience, or medical bills, the verdict was
inadequate as a matter of law. Relying on the additur statute,
Code Sect. 8.01-383.1(B)(1994)

(amended 1998), the trial court entered
judgment in favor of Simmons for $2,500.

As indicated above, the trial court’s reliance
on Bowers was misplaced. The amount of the jury verdict,
although equivalent to the lost wages claimed, does not of itself
justify the inference that the jury did not consider all the
elements of the damage instruction. In this case, while the jury
necessarily accepted the plaintiff’s version of the accident and
defendant’s negligence as a predicate for awarding any damages,
the testimony regarding the seriousness of the injuries and the
damages suffered by the plaintiff as a result of the accident was
subject to conflicting interpretations.

Although the plaintiff described the impact in
the accident as "pretty hard," the defendant maintained
that it was only "[a] light bump." Immediately
following the accident, the plaintiff did not complain of any
injury or seek medical care, but proceeded to attend a high
school football game. She testified that she had a stiff neck and
back the next morning and that her chest hurt. She took a
non-prescription pain medication and applied heat to the area of
soreness. The plaintiff testified that she went to a hospital
emergency room the day after the accident. She did not request
any damages relating to this hospital visit.

Eleven days after the accident, the plaintiff
consulted Dr. William R. Mauck. She did not tell him of her
emergency room visit. Dr. Mauck testified that the plaintiff had
no objective symptoms. He treated her for tenderness of the neck
and lower back muscles and "guarding of motion," which
he described as reluctance to move her neck and lower back to
their full range of motion. The chest pain of which the plaintiff
also complained was an aggravation of a pre-existing chest
condition. Dr. Mauck prescribed rest, wet heat, a muscle
relaxant, and electric heat treatment for the muscular soreness
and pain described by the plaintiff. The plaintiff, a child care
provider, continued working for two weeks following the accident,
but did not work during the subsequent two weeks while under the
care of Dr. Mauck.

Based on this evidence, the jury was entitled
to conclude that the plaintiff had not been injured as seriously
as she claimed and, accordingly, elected to award a monetary
amount commensurate with the damages it concluded were actually
incurred. While one may speculate as to the components of the
damage amount awarded on this conflicting evidence, such
speculation is not sufficient to warrant the conclusion, as a
matter of law, that the jury did not consider all the elements of
damage in reaching the amount of its verdict. Doe v. West,
222 Va. at 446, 281 S.E.2d at 853; see Richardson v.
Braxton-Bailey
, 257 Va. ___, ___, ___ S.E.2d ___, ___
(1999)(this day decided). We cannot say that the verdict was
based on an unreasonable interpretation of the evidence.

Because the trial court erred in
concluding that the verdict was inadequate as a matter of law, we
will reverse the judgment of the trial court and reinstate the
jury verdict of $560.

III. Walker v. Creasey,
Record No. 980254

Finally, in Walker v. Creasey,
the jury returned a verdict of $2,700, an amount that exceeded
the special damages claimed by approximately $86.00. The trial
court set the verdict aside. It found that the jury had
"rounded its verdict to the next higher one hundred
dollars," and that, under the decision in Bowers, the
verdict was inadequate as a matter of law because it is "for
the amount of the compensatory medical expenses." The trial
court thus concluded that the jury failed to take into
consideration other elements of damage as instructed. Relying on
Code Sect. 8.01-383.1(B)(1994)(amended 1998), the trial court
entered judgment for $5,000 in favor of Creasy.

The facts of this case, however,
do not bring it within the ambit of the narrow rule promulgated
in Bowers, and the trial court erred in setting aside the
verdict on that basis. As pointed out by Walker, the facts in
this case are similar to Dinwiddie v. Hamilton, 201 Va.
348, 111 S.E.2d 275 (1959). In that case, the jury verdict
exceeded the claimed special damages by $761. The Court in Dinwiddie
affirmed the jury verdict, stating that compensation for pain and
suffering is within the discretion of the jury and "no mere
difference of opinion of the trial judge, however decided, will
justify an interference with their verdict, unless it appears
from the record that the jury has been influenced by partiality
or prejudice, or have been misled by some mistaken view of the
merits of the case." Id. at 352, 111 S.E.2d at 278.
There is nothing in the record in the instant case which would
support a conclusion that the jury’s verdict was the result of
improper influence or a mistaken view of the merits of the case.

Accordingly, we will reverse the judgment of
the trial court and enter judgment reinstating the original jury
verdict of $2,700.

IV. Summary

In summary, we conclude that the trial court in
each of the cases improperly applied the rule set out in Bowers.
When the jury verdict is not in the exact amount of all the
special damages claimed, Bowers is not applicable, and the
trial court must review the evidence under traditional principles
relating to the adequacy of jury verdicts. See, e.g.,
Bradner v. Mitchell, 234 Va. 483, 362 S.E.2d 718 (1987),
and cases cited therein. In light of our disposition of these
cases, we need not address issues raised with regard to the
imposition of additur under Code Sect. 8.01-383.1(B).

Record No. 980345 — Reversed
and final judgment.

Record No. 980568 — Reversed
and final judgment.

Record No. 980254 — Reversed
and final judgment.

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