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
1
Guthrie stopped at the repair shop because one of the
tires on the tractor-trailer had “blown out” earlier that
2
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.
3
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.
4
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
5
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-
6
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.
7
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.
8
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
9
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
10
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
11
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.
12