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 postverdict 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 crossexamination 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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