PRESENT: All the Justices
DANIEL P. BRUGH
OPINION BY
v. Record No. 020852 JUSTICE DONALD W. LEMONS
JANUARY 10, 2003
JOHN LEE JONES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
In this appeal, we consider whether the trial court erred
in refusing to admit evidence that the defendant in a personal
injury action left the scene of the accident.
Facts and Proceedings Below
Daniel P. Brugh (“Brugh”) was a passenger in an automobile
operated by Harvey Leonard Poff (“Poff”) when that vehicle was
struck from behind by an automobile operated by John Lee Jones
(“Jones”). The collision pushed the Poff vehicle 60 to 80 feet
from the point of impact. Poff’s vehicle came to rest in a
parking lot off the road. Poff left the vehicle to speak with
Jones; however, Brugh was injured and remained in the
automobile. When Poff informed Jones that the police would be
called to the scene, Jones returned to his automobile and left
the scene of the accident. Because Jones abruptly left the
scene, neither Poff nor Brugh had the opportunity to determine
the extent of damage to Jones’ automobile. Apparently, police
did not locate Jones, but Poff and Brugh located him two weeks
later. They discovered that Jones worked in an automobile body
shop.
Although Jones apparently lied under oath at the criminal
hearing in the general district court stating that he was not
the driver of the automobile that struck Poff’s automobile, he
later admitted in responsive pleadings in the civil action for
damages that he was the driver of that automobile.
Additionally, Jones admitted negligence in the operation of his
vehicle and causation of damages to Brugh, leaving the amount of
damages as the primary issue at trial.
At trial, Jones introduced photographs of his automobile
showing no damage to the front of the vehicle. Brugh sought to
impeach Jones on cross-examination with evidence that Jones
abruptly left the scene of the accident in his automobile;
however, the trial court would not permit any mention of Jones’
leaving the scene of the accident. Subsequently, Brugh sought
to introduce the same evidence in rebuttal. Again, the trial
court refused to permit the introduction of such evidence.
In closing argument, counsel for Jones displayed the
photographs to the jury and argued that the impact from the
collision was so slight that there was no damage to Jones’
vehicle. With evidence of $1,318 in uncontroverted medical
expenses, the jury’s verdict for Brugh was $2,000. In post-
verdict motions, Brugh sought a new trial, arguing that the
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trial court erred in excluding evidence, by impeachment or
rebuttal, of Jones’ sudden departure from the scene of the
accident, thereby depriving Brugh and Poff of the opportunity to
examine the extent of damage to Jones’ automobile. Brugh argued
that the trial court’s error was exploited by counsel for Jones
when he argued to the jury that the photographs depicted an
undamaged and unrepaired vehicle, suggesting a low impact
collision that caused limited personal injury to Brugh. The
trial court refused to set aside the verdict and order a new
trial. Brugh appeals the adverse judgment of the trial court.
Analysis
When evidence is offered at trial, it is necessary to
identify the purpose for its introduction. While evidence may
be relevant in that it tends to establish the proposition for
which it is offered, in order to be admissible, it must also be
material, meaning that the evidence tends to prove a matter that
is properly at issue in the case. Also, otherwise admissible
evidence may nonetheless be excluded based upon specific rule or
other statutory or common law considerations.
In this case, Jones admitted liability, leaving as the
primary issue the quantum of damages. As we have previously
noted:
This does not mean, however, that an admission of
liability precludes a plaintiff in an action for
personal injuries from showing how the accident
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happened if such evidence is material and
relevant to the question of damages. Where
liability has been admitted and the only issue to
be determined is the quantum of damages, the
force of the impact and the surrounding
circumstances may be relevant to show the extent
of plaintiff’s injuries.
Eubank v. Spencer, 203 Va. 923, 925-26, 128 S.E.2d 299, 301-02
(1962).
In this case, Brugh and Poff testified about the severity
of the impact and its relationship to the injuries sustained by
Brugh. Jones testified that the impact was slight and offered
photographs of his automobile without damage as support for his
testimony. He stated that the automobile had not been repaired
after the collision and that the photographs accurately
represented the condition of his automobile immediately after
the collision. The degree of impact was already an issue in the
case; however, when Jones offered evidence that his automobile
was not damaged and had not been repaired, he placed into issue
the reliability of the evidence offered and his own credibility
on the matter.
It is apparent from the record that the trial court
misapprehended the plaintiff’s purpose in offering the evidence.
Concluding that “[t]he law of the Commonwealth does not allow it
to be presented in evidence at this time[,]” the trial court
stated:
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[I]t ought to be admissible that somebody left
the scene of the accident, ought to be some way
that damages could be considered by a jury, in
that a person has a duty of care to see to it
that someone’s not injured, to render aid and
assistance if necessary, to be present so that
the information can be delivered to the police so
that the accident can be properly investigated.
In this case, Brugh did not seek to offer evidence that
Jones committed the crime of leaving the scene of an accident,
often referred to as “hit and run.” Rather, Brugh sought to
introduce evidence that Jones abruptly removed his automobile
from the scene of the accident, thereby precluding immediate
examination of the vehicle by Brugh and Poff. Additionally,
Brugh did not offer the evidence as an independent basis for an
award of damages. The evidence was offered in support of
Brugh’s claim that the impact of the collision was severe and in
opposition to Jones’ claim that the impact was slight.
Brugh had established on cross-examination that Jones had
lied under oath in a prior general district court proceeding
concerning whether he was the operator of the vehicle. Two
weeks after the accident, Brugh and Poff located Jones and the
vehicle. The evidence revealed that Jones worked in an
automobile body repair shop. Jones denied that the vehicle had
been repaired. In this context, the evidence offered was
probative for the purpose of impeachment on cross-examination
because credibility of a witness is always a matter properly at
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issue. The evidence was also probative on rebuttal because the
condition of Jones’ vehicle had been placed into issue by his
photographic evidence and his testimony.
We hold that, under the specific circumstances of this
case, the trial court abused its discretion by holding that as a
matter of law, evidence of Jones’ abrupt leaving of the scene of
the accident was inadmissible. However, upon remand, and should
there be a new trial, the trial court must apply a balancing
test to determine whether the probative value of the evidence
outweighs its prejudicial effect. “With regard to the admission
of evidence, the responsibility for balancing the competing
considerations of probative value and prejudice rests in the
sound discretion of the trial court.” Lombard v. Rohrbaugh, 262
Va. 484, 492, 551 S.E.2d 349, 353 (2001). In a civil case
involving introduction of evidence of conduct that may have been
unlawful, we stated that “[t]he trial judge, in his discretion,
had the responsibility of weighing the probative value of the
evidence on this main issue against its possible prejudicial
effect in showing [the appellant’s] desire to make an illegal
payment to an unlicensed agent.” Seilheimer v. Melville, 224
Va. 323, 328, 295 S.E.2d 896, 899 (1982).
Finally, Jones maintains that any error committed by the
trial court was harmless. We disagree. With liability and
causation of damages admitted, the only issue remaining in the
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plaintiff’s case was the quantum of damages. In this case, the
quantum of damages was directly tied to the severity of the
impact in the collision. The evidence was in conflict on this
subject. The evidence sought to be introduced by cross-
examination or by rebuttal that Jones removed his automobile
from the scene would have discredited Jones’ testimony on a
major issue in controversy. If the evidence was admissible, its
exclusion was not harmless.
Conclusion
For the reasons stated above, we will reverse the judgment
of the trial court and remand for a new trial.
Reversed and remanded.
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