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Shepherd v. Smith2/28/2003
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
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 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 c
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