Shepard v. Capitol Foundry of Virginia, Inc.

Present: All the Justices

ABE SHEPARD, ADMINISTRATOR OF
THE ESTATE OF ERNESTINE SHEPARD

v. Record No. 002776 OPINION BY JUSTICE CYNTHIA D. KINSER
November 2, 2001
CAPITOL FOUNDRY OF
VIRGINIA, INC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge

In this wrongful death action, the dispositive

question to be decided on appeal is whether the circuit

court erred in remitting portions of a jury verdict for the

plaintiff. Because we conclude that the circuit court

failed to consider the evidence relevant to damages in the

light most favorable to the plaintiff, we will reverse the

judgment of the circuit court and reinstate the jury

verdict.

FACTS AND MATERIAL PROCEEDINGS

Ernestine Shepard died as a result of injuries

sustained in an automobile accident that occurred in the

City of Petersburg. At the time of the accident, she was

driving a pick-up truck and had stopped her vehicle

immediately behind a tractor-trailer owned by Capitol

Foundry of Virginia, Inc. (“Capitol Foundry”), and operated

by its employee, Jack Guthrie, Jr. Guthrie had stopped the

tractor-trailer in the left travel lane of East Bank Street
while waiting for parking space at a repair shop so that he

could drive the tractor-trailer into the shop’s parking

lot. 1 After the decedent brought her pick-up truck to a

stop behind the tractor-trailer, a third motorist crashed

into the rear of the decedent’s vehicle, causing the front

of her vehicle to collide with the rear of the tractor-

trailer.

The decedent was 67 years of age at the time of her

death and had been married to her husband, Abe Shepard, for

44 years. She is survived by her husband and six adult

children. The appellant, Abe Shepard, Administrator of the

Estate of Ernestine Shepard, brought this wrongful death

action against Capitol Foundry, Guthrie, and two other

individuals who are not parties to this appeal.

At trial, Mr. Shepard presented evidence regarding the

emotional hardships and loss he has suffered as a result of

the death of Mrs. Shepard. Mr. Shepard spoke of preparing

his own meals now and eating them alone. He stated that

since his wife’s death, he has eaten more “fast food” than

ever before during his lifetime and that he has lost about

15 pounds in weight. Mr. Shepard acknowledged that, during

his 30 years of military service, his wife handled the

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Guthrie stopped at the repair shop because one of the
tires on the tractor-trailer had “blown out” earlier that

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family’s business matters and continued to do so after he

retired. So, in his words, “when she passed, I was lost.”

Finally, Mr. Shepard described his frequent visits to his

wife’s grave:

I just feel like I have accomplished something
whenever I would go out there and talk with her as if
she was going to talk back, knowing that she can’t. I
tell her about the children. I tell her about my life
and what I’m going through since she’s been gone, how
much I miss her, and all of that. You would think
that somebody was talking to me the way I be talking
out there sometimes. And I say a prayer or two, and
then I leave.

Five of the Shepard children also testified at trial

about their loss and discussed the relationship that they

had enjoyed with their mother through the years and her

influence upon the lives of her children. Two of the

daughters were living at home with their parents at the

time of the accident. Mrs. Shepard was close to all her

children, and several of them portrayed her as the primary

care-giver when they were growing up because their father’s

military career frequently took him away from home. For

example, the youngest son described the strength his mother

displayed in caring for the family while Mr. Shepard was on

active military duty in Vietnam. Another son testified

that his mother took care of the finances and the

“spiritual things” in the home and was “a crutch” for his

day.

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father. Although Merritt Shepard, an Army officer residing

in Germany, did not testify at the trial, his twin sister

explained that her brother stayed in touch with his mother

through telephone conversations, especially on holidays.

All the children attended their mother’s funeral.

During closing argument at trial, the plaintiff asked

the jury to award damages in the amount of $1,000,000 for

Mr. Shepard, and $500,000 for each of the six children.

After deliberations, the jury returned a verdict in favor

of the plaintiff and assessed damages in the amount of

$1,700,000, plus interest on that sum from April 23, 1996,

the date of the accident. Of the total damages awarded,

the jury distributed $1,100,000 to Mr. Shepard and $100,000

to each of the six adult children.

In post-trial motions, Capitol Foundry and Guthrie

asked the court to set aside the jury verdict and grant a

new trial or, in the alternative, for remittitur of the

verdict. 2 Following argument by the parties, the circuit

court ruled from the bench and denied the motion to set

2
Capitol Foundry and Guthrie also moved the court to
reconsider its previous denial of their motion for a
mistrial. They had based that motion on an alleged
inflammatory remark by the plaintiff’s counsel during
closing argument. However, since the motion for a mistrial
came after the jury retired to deliberate, the court
concluded that it was untimely.

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aside the jury verdict. However, the court concluded that

the damages awarded were excessive and therefore remitted

the jury’s award to $750,000 for Mr. Shepard and $50,000

for Merritt Shepard (the son living in Germany). The court

also remitted the award of pre-judgment interest and

allowed interest only from August 16, 2000, the date of the

jury verdict. The court did not remit the amount of

damages awarded to the other five children.

In the order memorializing its bench ruling, the court

enunciated the following reasons for its decision: (1) the

damages were so excessive as to shock the conscience of the

court; (2) the jury misconceived the facts and the law to

the extent that it was instructed that a verdict should not

be based on bias or sympathy; (3) the award was out of

proportion to the injuries suffered, thus suggesting the

verdict was not the product of a fair and impartial

decision; (4) Mr. Shepard received $100,000 more than

requested and was 83 years old at the time of the trial;

(5) Merritt Shepard did not testify at trial, yet received

the same amount as the other children who did testify; (6)

more interest was awarded than requested; and (7) there was

no evidence regarding loss of income, expenses for

treatment of the decedent, or funeral expenses. The court

also incorporated in its order the remarks that it had

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previously made from the bench at the close of the hearing

on the defendants’ post-trial motions. In those remarks,

the court alluded to certain statements made by the

plaintiff’s attorney during closing argument and suggested

that those statements inflamed and prejudiced the jury. 3

The court also characterized the assessment of pre-judgment

interest and the award of $100,000 more to Mr. Shepard than

requested during closing argument as being in the nature of

punitive damages.

Pursuant to Code § 8.01-383.1(A), the plaintiff

elected to accept the remitted sums under protest rather

than to submit to a new trial on all issues. We awarded

the plaintiff this appeal.

ANALYSIS

In their request that we affirm the judgment of the

circuit court, Capitol Foundry and Guthrie assert that the

court clearly stated its reasons for remitting the jury

verdict and that those reasons support the court’s finding

that the verdict was excessive. They also contend that the

recovery after remittitur bears a reasonable relationship

to the damages, considering the fact that the issue of

3
At least one of those allegedly inflammatory remarks
was the subject of the defendants’ motion for a mistrial
made after the jury retired to deliberate. In their post-

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liability was contested and all the losses claimed were

non-pecuniary. Thus, Capitol Foundry and Guthrie argue

that the court did not abuse its discretion in ordering

remittitur in this case. We do not agree.

When a verdict is challenged on the basis of alleged

excessiveness, a trial court is compelled to set it aside

“if the amount awarded is so great as to shock the

conscience of the court and to create the impression that

the jury has been motivated by passion, corruption or

prejudice, or has misconceived or misconstrued the facts or

the law, or if the award is so out of proportion to the

injuries suffered as to suggest that it is not the product

of a fair and impartial decision.” Edmiston v. Kupsenel,

205 Va. 198, 202, 135 S.E.2d 777, 780 (1964); accord

Poulston v. Rock, 251 Va. 254, 258, 467 S.E.2d 479, 481

(1996). “Setting aside a verdict as excessive . . . is an

exercise of the inherent discretion of the trial court and,

on appeal, the standard of review is whether the trial

court abused its discretion.” Poulston, 251 Va. at 258-59,

467 S.E.2d at 482 (citing Bassett Furniture v. McReynolds,

216 Va. 897, 911, 224 S.E.2d 323, 332 (1976)).

trial motions, Capitol Foundry and Guthrie pointed to other
allegedly inflammatory statements.

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 The process of determining whether a trial court

abused its discretion in ordering remittitur involves two

steps. First, we must find in the record not only the

trial court’s conclusion that the verdict was excessive,

but also an explanation demonstrating that the court, in

reaching its conclusion, considered “ ‘factors in evidence

relevant to a reasoned evaluation of the damages.’ ”

Poulston, 251 Va. at 259, 467 S.E.2d at 482 (quoting

Bassett Furniture, 216 Va. at 912, 224 S.E.2d at 332).

Second, we must ascertain whether the amount of recovery

after remittitur bears a “ ‘reasonable relation to the

damages disclosed by the evidence.’ ” Id.

Both of these steps require an evaluation of the

evidence relevant to the issue of damages. In making that

evaluation, the trial court, as well as this Court, is

required to consider the evidence in the light most

favorable to the party that received the jury verdict, in

this case the plaintiff. Id. at 261, 467 S.E.2d at 483

(citing Caldwell v. Seaboard Sys. R.R., 238 Va. 148, 155,

380 S.E.2d 910, 914 (1989)). If there is evidence, when

viewed in that light, to sustain the jury verdict, then

remitting the verdict is error. Edmiston, 205 Va. at 202-

03, 135 S.E.2d at 780.

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 In the present case, the circuit court failed to view

the evidence in the light most favorable to the plaintiff

and thus erred in its determination that the verdict was

excessive. Both from the bench and in its order, the court

listed several evidentiary factors that are relevant to the

question of damages and whether the amounts awarded were

excessive. However, the court limited its review of the

evidence to those factors, all of which are adverse to the

plaintiff. See Poulston, 251 Va. at 261-62, 467 S.E.2d at

483 (trial court incorrectly limited its review of evidence

to certain testimony and failed to consider other

testimony). It is not apparent from the record before us

that the court also considered the evidence that supports

the amount of damages awarded by the jury. In other words,

the court viewed the evidence in the light most unfavorable

to the plaintiff. For example, the evidence shows not just

a man of 83 years of age, but also a husband who suddenly

and tragically lost his wife of 44 years – a wife described

by one of the sons as his father’s “crutch.” The evidence

also reveals a husband who is still so distraught over his

wife’s death that he goes to her grave once or twice each

month and tells her about the children.

Similarly, with regard to Merritt Shepard, the court

focused solely on the fact that he did not appear and

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testify at the trial as did the other five children.

However, the court apparently did not consider the fact

that Merritt attended his mother’s funeral, and that she

was very close to all her children and held the family

together while Mr. Shepard was overseas on military duty.

Finally, with regard to the award of pre-judgment

interest, the court surmised that the jury simply wanted to

punish the defendants and decided that interest should run

“from the date of trial since this delay is something that

is not attributable to either side.” Yet, the court

clearly instructed the jury that an award of interest was a

matter entirely in its discretion:

As to interest, you have a choice. You may award
interest. You may not award interest. It is up to
you. If you do award interest, you have a choice from
the date of the accident up until the date of the
trial. Or you have a choice of not to award interest
. . . .

This instruction is in accord with Code § 8.01-382, which

gives the fact-finder the discretion to decide whether to

“provide for interest on any principal sum awarded, or any

part thereof, and fix the period at which the interest

shall commence.”

“Prejudgment interest is normally designed to make the

plaintiff whole and is part of the actual damages sought to

be recovered.” Monessen Southwestern Ry. v. Morgan, 486

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U.S. 330, 335 (1988), quoted in Dairyland Ins. Co. v.

Douthat, 248 Va. 627, 631, 449 S.E.2d 799, 801 (1994).

“ ‘[I]nterest is allowed, because it is natural justice

that he who has the use of another’s money should pay

interest for it.’ ” J.W. Creech, Inc. v. Norfolk Air

Conditioning Corp., 237 Va. 320, 325, 377 S.E.2d 605, 608

(1989) (quoting Jones v. Williams, 6 Va. 85, 87, 2 Call

102, 106 (1799)).

Again, the court failed to consider the evidence in

the light most favorable to the plaintiff. An example is

the court’s reference to the lack of evidence regarding

loss of income, expenses for treating the decedent, and

funeral expenses. Yet, we have said that evidence of

sorrow, mental anguish, and solace can be sufficient to

support a jury’s award. Jan Paul Fruiterman, M.D. &

Assocs. v. Waziri, 259 Va. 540, 545, 525 S.E.2d 552, 555

(2000). Code § 8.01-52 specifies that, in a wrongful death

action, the verdict “shall include, but may not be limited

to, damages for . . . [s]orrow, mental anguish, and solace

which may include society, companionship, comfort,

guidance, kindly offices and advice of the decedent.”

CONCLUSION

Because the circuit court failed to consider “factors

in evidence relevant to a reasoned evaluation of the

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damages” in the light most favorable to the plaintiff,

Bassett Furniture, 216 Va. at 912, 224 S.E.2d at 332, we

conclude that the court abused its discretion in finding

the jury verdict excessive and remitting a portion of the

damages awarded. As acknowledged by Capitol Foundry and

Guthrie on brief, “the inadequacy or excessiveness of each

verdict must be determined on the facts of the case

. . . .” Williams Paving Co. v. Kreidl, 200 Va. 196, 204,

104 S.E.2d 758, 764 (1958). The facts of the present case,

when considered in the light most favorable to the

plaintiff, demonstrate that the verdict was not excessive.

Accordingly, we will reverse the judgment of the

circuit court, reinstate the jury verdict, and enter final

judgment for the plaintiff. 4

Reversed and final judgment.

4
In light of our decision, we do not address the
plaintiff’s other two assignments of error: (1) that, in
deciding the motion for remittitur, the circuit court erred
in considering alleged inflammatory statements by
plaintiff’s counsel during closing argument since those
statements were not the subject of a timely motion for a
mistrial, and (2) that the circuit court erred in
concluding that certain remarks by plaintiff’s counsel were
improper.

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