June 5, 1998

Record No. 971951






Melvin R. Hughes, Jr., Judge

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and Kinser, JJ., and Stephenson, Senior Justice

The sole issue in this appeal is whether the jury’s
verdict is inadequate as a matter of law.


Angela D. Toombs sued Brett K. Hayes to recover damages for
injuries Toombs sustained in a motor vehicle collision. Hayes
admitted liability for the accident. Following a jury trial on
June 13, 1997, to determine Toombs’ damages, the jury
returned a verdict in the amount of $23,282.84. Toombs moved the
trial court to set aside the verdict and order a new trial,
claiming that the verdict was inadequate as a matter of law. The
court overruled the motion for the reasons stated in its letter
opinion dated June 19, 1997, and, on June 25, 1997, the court
entered judgment on the verdict. Toombs appeals.


The motor vehicle collision occurred on September 14, 1994, in
the City of Richmond. Toombs was a front-seat passenger in an
automobile operated by Lori J. Curtis. The automobile operated by
Hayes struck the passenger side of the Curtis car.

The next day, Toombs received treatment at a hospital
emergency room. From September 19, 1994, to April 21, 1995,
Toombs was under the care of Dr. John T. Carmack, her family
physician. Dr. Carmack testified that, as a result of the
collision, Toombs suffers from chronic mechanical back strain,
synonymous with sacroiliac joint dysfunction, and muscle spasms
in the low back. He further testified that all of the treatment
he provided was necessary and appropriate.

On April 21, 1995, Dr. Carmack referred Toombs to Dr. Mark E.
DeBlois, an orthopedic surgeon. Dr. DeBlois testified that, as a
result of the collision, Tombs sustained a lumbar or sacroiliac
strain. The doctor ordered various tests and physical therapy and
prescribed pain medications and anti-inflammatories. He also
referred Toombs to Dr. Douglas A. Wayne, a specialist in
rehabilitation and physical medicine. According to Dr. DeBlois,
his treatment of Toombs was necessary, reasonable, and directly
related to her injuries received in the accident.

Dr. Wayne testified that, as a result of the automobile
collision, Toombs suffers from sacroiliac dysfunction and chronic
strain of the lumbosacral supraspinous ligaments. The doctor
recommended that Toombs continue doing stretching exercises and
using a sacroiliac belt. He also prescribed electrical
stimulation to dull or mask Toombs’ pain.

Toombs’ medical expenses totaled $18,838.52. As a result
of the collision, she incurred $4,444.32 in lost wages. She
testified that, as a result of the accident, she has had constant
low back pain, her once physically active lifestyle is now
restricted, sexual relations with her husband have been affected,
and she has had to postpone plans to have other children.


The jury returned a verdict in the exact amount of
Toombs’ medical expenses and lost wages. Toombs contends
that the verdict is inadequate as a matter of law. We agree.

Recently, in Bowers v. Sprouse, 254 Va. 428, 492
S.E.2d 637 (1997), decided after the trial court ruled in the
present case, we 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. This is so, we said, because such a verdict
"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. We noted that,
"at a minimum, [the] plaintiff experienced pain, suffering,
and inconvenience . . . and was entitled to
compensation for [those] elements of damage." Id.

Hayes attempts to distinguish the present case from Bowers,
relying upon certain handwritten notations on the verdict form.
The notations, immediately below the foreperson’s signature,

18,838.53 Medical

4,444.32 Lost Wages

Pain + Suffering


These notations, however, had been scratched out. Below them
are the following notations:

1,482.68 Medical

1,204.09 Wages

________ Balance For Pain + Suffering


Hayes argues that "[t]he notations clearly demonstrate
that the jury awarded the plaintiff damages for her medical
expenses, earnings lost, pain suffered and inconvenience caused
as a result of [his] negligence."

We think reliance upon the notations would raise many
questions and require us to resort to speculation and conjecture.
We have no way of knowing who made the notations and why or who,
if anyone, authorized them. We can only speculate whether the
notations were approved by the jury. More perplexing is why, if
the jury intended to compensate Toombs for pain, suffering, and
inconvenience, the verdict is in the exact amount of her special

In Ingles v. Dively, 246 Va. 244, 253, 435
S.E.2d 641, 646 (1993), we addressed the issue respecting
notations on a verdict form. We stated that "[w]e share the
virtually unanimous view of courts across this country that a
court should not engage in speculation over the meaning of
notations made by jury members on the verdict form during the
deliberative process."

Previously, however, in DeWald v. King, 233 Va.
140, 354 S.E.2d 60 (1987), we did consider certain notations on a
verdict form. A close reading of DeWald, though, indicates
that consideration of the notations was unnecessary and not
essential to our holding. Before making any reference to the
notations, we had already determined, based upon Rome v. Kelly
Springfield Tire Co.
, 217 Va. 943, 234 S.E.2d 277 (1977), and
its progeny, that the verdict in DeWald was inadequate as
a matter of law. Therefore, the reference to the notations on the
verdict form was merely dictum.

Accordingly, we adhere to what we said in Ingles.
Notations such as those in the present case, located below the
signed verdict, simply are not part of the verdict, and a court
should not speculate about their origin, purpose, or meaning.

We hold, therefore, that Bowers is controlling and that
the verdict in the present case is inadequate as a matter of law.
We will reverse the trial court’s judgment and remand the
case for a new trial on damages.

Reversed and remanded.