Present: Hassell, C.J., Koontz, Kinser, Lemons, Agee, and 

Goodwyn, JJ., and Russell, S.J. 

CHRISTA L. WRIGHT, AS PERSONAL 

REPRESENTATIVE OF THE BENEFICIARIES 

OF, AND ADMINISTRATOR OF, THE 

ESTATE OF ANTHONY EDWARD WRIGHT OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 070614 April 18, 2008 

ROBERT K. MINNICKS, T/A 

MINNICKS AUTO REPAIR, ET AL. 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

John E. Wetsel, Jr., Judge 

 In this appeal from a final judgment in an action for 

wrongful death, the dispositive question is whether the trial 

court erred in setting aside the original jury's verdict and 

ordering a new trial. 

Facts and Proceedings

 The facts concerning the decedent's accident will be 

stated in the light most favorable to the plaintiff, the 

prevailing party at trial. The decedent, Anthony Edward 

Wright, was operating a motorcycle on Route 645 in Frederick 

County at mid-day on July 24, 2004. Bernard W. Everhart, Jr., 

was operating a commercial tow truck belonging to Robert K. 

Minnicks, t/a Minnicks Auto Repair (Minnicks), and was 

Minnicks' employee. Everhart backed the tow-truck out of a 

private driveway into the highway in the path of Wright's 

oncoming motorcycle. Wright attempted to avoid collision with 
the truck but fell from his motorcycle, sustaining head 

injuries that resulted in his death on the following day. 

 Wright's wife, Christa L. Wright, qualified as personal 

representative and administrator of his estate. She brought 

this action for wrongful death against Minnicks and Everhart. 

The case proceeded to a jury trial in which the court gave the 

following instruction to the jury: 

INSTRUCTION NO. 29 

If you find your verdict for the plaintiff, 

then in determining the damages to which she is 

entitled, you may consider, but are not limited to, 

any of the following which you believe by the 

greater weight of the evidence, were caused by the 

negligence of the defendants as damages suffered by 

the beneficiary. 

(1) any sorrow, mental anguish, and loss of 

solace suffered by the beneficiary. Solace may 

include society, companionship, comfort, guidance, 

kindly offices, and advice of the decedent. 

(2) any reasonably expected loss in income of 

the decedent suffered by the plaintiff; and 

(3) any reasonably expected loss of services, 

protection, care, and assistance which the decedent 

provided to the plaintiff. 

If you find your verdict for the plaintiff, you 

shall award damages for: 

(1) any expenses for the care, treatment, and 

hospitalization of the decedent incident to the 

injury resulting in his death; and 

2
(2) reasonable funeral expenses.1

 The jury found for the plaintiff and returned the 

following verdict: "[E]xpenses for the care[,] treatment and 

hospitalization of the decedent, $10,534.18. Reasonable 

funeral expenses of $7,996.71. Compensatory damages for 

sorrow, mental anguish and solace[,] zero. Compensatory 

damages for reasonable expected loss of income of the decedent 

and [for] services, protection, care, and assistance provided 

by the decedent, $942,535." 

 The defense filed a motion to set aside the verdict or to 

grant a new trial on the ground that the verdict, awarding 

zero damages for solace and sorrow, while awarding substantial 

damages for loss of income, services, etc., was inconsistent, 

indicating that the jury had misunderstood the facts or the 

law.2 The circuit court, relying on our holding in Johnson v. 

Smith, 241 Va. 396, 403 S.E.2d 685 (1991), granted the motion, 

set the verdict aside, and continued the case for a new trial 

on the issue of damages only. 

 1

 By agreement of counsel, a special verdict form was 

submitted to the jury, requiring the jury to itemize their 

awards for each of the foregoing elements of damages. 

2

 At the same time, the plaintiff filed a motion for a new 

trial limited to the issue of damages for solace only. The 

court denied that motion. 

3
 A second jury trial took place six months later, 

resulting in a verdict for the plaintiff in the same amounts 

for care, treatment and hospitalization and also for funeral 

expenses as were contained in the first verdict. The second 

verdict, however, awarded one dollar for solace and zero for 

loss of income, services, protection, care and assistance. 

The plaintiff moved to set the second verdict aside, and for a 

new trial on the issue of damages. The court denied that 

motion and entered final judgment on the second verdict.3 We 

awarded the plaintiff an appeal. Because the first assignment 

of error, that the trial court erred in granting the 

defendants' motion to set aside the first verdict, is 

dispositive, we do not reach the remaining assignments of 

error.4

 The defendants were permitted, over the plaintiff's 

objection, to introduce evidence that the marriage of Anthony 

and Christa Wright was failing at the time of Anthony's death. 

 3

 Because we decide that the court erred in setting aside 

the first verdict, the proceedings at the second trial are 

immaterial to this appeal. We therefore consider here only 

the incidents of the first trial. 

4

 As an alternative argument under the first assignment of 

error, the plaintiff argues that the defendants' motion to set 

the first verdict aside was actually based on alleged 

insufficiency of the verdict due to its omission of damages 

for solace, and that only a plaintiff may attack a verdict for 

insufficiency. Because we find the first verdict to be 

supported by the evidence, we do not reach that issue. 

4
One witness testified that he and Christa were having an 

affair during the month before Anthony's death, while Anthony 

and Christa were living apart. Another witness testified that 

shortly before his death, Anthony had told her that he and 

Christa "were going to end it. That it was a mutual thing. 

Neither one of them [was] happy. . . . He told me that they 

were gonna go see a lawyer to sign papers to be separated." 

 Christa Wright testified that she and Anthony were not 

separated, but that she had been staying at her parents' home 

for about three weeks to assist her mother, who was suffering 

from cancer. She said that she and Anthony had a close 

relationship and that the parties had no intention of 

separating. There were no children of the marriage. 

Analysis

 The circuit court expressed the view that our decision in 

Johnson v. Smith was controlling on the question of setting 

aside the first verdict. In Johnson, a wrongful death case, 

the trial court refused to set aside a verdict for the 

plaintiff as inadequate. The jury had returned a verdict for 

the plaintiff as follows: to the decedent’s widow, $50,000 

for lost income, $20,000 for lost services and protection, 

$5788.45 for funeral expenses, and nothing for sorrow, mental 

anguish, and solace. The jury awarded each of the decedent’s 

children $30,000 for lost income and nothing for sorrow, 

5
mental anguish and solace, and nothing for lost services and 

protection. Id. at 398, 403 S.E.2d at 686. There, we said: 

When we consider the other issues and see that the 

jury awarded Johnson's widow and children nothing 

for sorrow, mental anguish, and solace, we find it 

impossible to conceive of a rational basis for the 

denial. And when we observe that the jury awarded 

the children nothing for lost services and 

protection, we are unable to describe the denial as 

anything but incomprehensible. This action by the 

jury renders the entire verdict suspect and leads to 

the conclusion that the jury must have misconceived 

or misunderstood the facts or the law. Hence, the 

trial court erred in refusing to set the verdict 

aside. 

Id. at 400-01, 403 S.E.2d at 687. 

 The evidence in Johnson showed that the decedent was a 

“model employee” with a wife and two young daughters. Id. at 

397, 403 S.E.2d at 686. He was described as an “attentive 

father, ‘the best,’ and was often observed playing with his 

children ‘in the yard.’ He loved [his 11-year-old daughter] 

very much. [His 5-year-old daughter] was ‘daddy’s girl’ and 

‘preferred to be with him most of the time.’ He was handy 

with tools and ‘just did everything’ around the house.” Id.

at 398, 403 S.E.2d at 686. There was no evidence of marital 

discord. 

 It was on that record that we found, in Johnson, the 

jury’s failure to award damages for sorrow, mental anguish and 

solace, to be “incomprehensible.” Id. at 400, 403 S.E.2d at 

687. Citing Smithey v. Refining Company, 203 Va. 142, 146, 

6
122 S.E.2d 872, 875-76 (1961), we held that the trial court 

had erred in refusing to set the verdict aside. Johnson, 241 

Va. at 401, 403 S.E.2d at 687. We remanded the case for a new 

trial. Id. at 401, 403 S.E.2d at 688. 

 We did not announce, in Johnson, an inflexible rule that 

every verdict for a plaintiff in a wrongful death case, 

regardless of the evidence, must be set aside as inadequate or 

inconsistent if it fails to include an award for solace 

damages. The verdict in Johnson was manifestly inconsistent 

because it contained awards for economic losses suffered by 

the survivors but denied them any compensation for sorrow, in 

the absence of any evidence to support such a denial. 

 Here, in contrast to the evidence in Johnson, there was 

evidence to support a finding by the jury that the Wrights’ 

marriage was dysfunctional. The trial judge, after the second 

trial, observed that both juries had found from the evidence 

that the marriage was in a state of “emotional bankruptcy” and 

in that respect, at least, the two verdicts were consistent. 

 There was a direct conflict in the evidence concerning 

the state of the Wrights’ marriage at the time of the 

decedent’s death. The plaintiff contended that the marriage 

was continuing and successful, that husband and wife were 

devoted spouses and that they were not voluntarily separated. 

The defendants’ evidence was that the Wrights were permanently 

7
living apart, both were unhappy with their marriage and 

intended to “go see a lawyer [and] sign papers to be 

separated.”5 It was entirely within the province of the jury 

to choose between these conflicting versions. The jury was 

entitled to accept the defendants’ evidence on this point in 

refusing to award damages for solace. 

 On the other hand, there was evidence to support a jury 

finding that the plaintiff was entitled to an award for loss 

of income. Christa Wright testified that she was entirely 

dependant upon her husband for support. The jury could 

reasonably infer that she could have continued to rely on him 

for support despite their separation. 

 The weight and credibility of the testimony of witnesses 

are solely matters for the jury. Marks v. Ore, 187 Va. 146, 

152, 45 S.E.2d 894, 896 (1948). The jury may accept that part 

of the testimony it believes and reject that which it does 

not. Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 

(1958). It is also within the exclusive province of the jury 

to draw any reasonable inferences from the evidence before it. 

Virginia Heart Inst. v. Northside Electric Co., 221 Va. 1119, 

1126-27, 277 S.E.2d 216, 221 (1981). “The very essence of 

 5

 The court did not, in the first trial, permit the 

defense to argue that either of the parties intended to obtain 

a divorce. 

8
9

[the jury’s] function is to select from among conflicting 

inferences and conclusions that which it considers most 

reasonable. . . . Courts are not free to reweigh the evidence 

and set aside the jury verdict merely because the jury could 

have drawn different inferences or conclusions or because 

judges feel that other results are more reasonable.” Bly v. 

Southern Ry. Co., 183 Va. 162, 175, 31 S.E.2d 564, 570 (1944) 

(citations omitted). 

Conclusion

 Unlike the situation in Johnson, there was sufficient 

evidence in the first trial of the present case to support all 

parts of the original verdict. The verdict was thus not 

internally inconsistent and does not compel the conclusion 

that the jury misconceived or misunderstood either the facts 

or the law. The circuit court therefore erred in setting it 

aside and ordering a new trial. Accordingly, we will set 

aside the second verdict, reinstate the original verdict and 

enter final judgment thereon here. 

Reversed and final judgment.