PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., Carrico,1 S.J. 

CLAYTON LEE SHEPHERD 

 OPINION BY 

v. Record No. 021148 JUSTICE DONALD W. LEMONS 

 February 28, 2003 

SAMANTHA SMITH 

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY 

Harry T. Taliaferro, III, Judge 

 In this appeal, we consider whether the trial court erred 

by granting the defendant’s motion to set aside a plaintiff’s 

verdict on the ground that the verdict was inadequate as a 

matter of law because it was less than the plaintiff’s 

uncontroverted special damages. 

I. Facts and Proceedings Below 

 On July 20, 2000, Clayton Lee Shepherd (“Shepherd”) filed a 

motion for judgment in the Circuit Court of Westmoreland County 

alleging that on September 11, 1999 he was struck and injured by 

an automobile driven by Samantha Smith (“Smith”) as he walked 

down McKiney Boulevard in Colonial Beach, Virginia. Shepherd 

claimed $750,000 in damages, including approximately $85,000 in 

medical expenses and $40,000 in lost wages. In her grounds of 

defense, Smith denied negligence and asserted that Shepherd was 

contributorily negligent “and/or assumed the risk of his 

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Chief Justice Carrico presided and participated in the 

hearing and decision of this case prior to the effective date of 

his retirement on January 31, 2003. 
injuries.” Upon the evidence presented, the jury returned a 

verdict in Shepherd’s favor in the amount of $65,000. 

 In post-verdict motions, Smith moved to set aside the jury 

verdict and argued that “as a matter of law, a verdict less than 

the uncontroverted special damages must be set aside.” 

Additionally, Smith moved to strike plaintiff’s evidence and 

enter judgment for Smith. In response, Shepherd maintained that 

the evidence was sufficient to support the jury’s verdict that 

Smith was negligent and that Shepherd was not guilty of 

contributory negligence, and further asserted that a “defendant 

lacks standing to object” to the inadequacy of a verdict in 

favor of the plaintiff. 

 The trial court’s order of August 3, 20012 stated: 

Upon the finding that there was evidence to 

support a verdict for either party, that the 

jury’s verdict was inadequate as a matter of law, 

and that defendant has standing to complain about 

the inadequacy of the verdict, it is ORDERED that 

the jury’s verdict rendered May 1, 2001 is set 

aside as inadequate as a matter of law; it is 

further ORDERED that a new trial will be held on 

all issues; and it is finally ORDERED that 

defendant’s motion to strike plaintiff’s evidence 

is denied. 

 At the subsequent retrial, a jury returned a defense 

verdict and awarded nothing to Shepherd. Shepherd appeals the 

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 The Honorable Joseph E. Spruill, Jr. presided over the 

first trial and ordered that the jury’s verdict be set aside and 

that a new trial be held. The Honorable Harry T. Taliaferro, 

III, presided over the second trial. 

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adverse judgment of the trial court and assigns error as 

follows: 

The trial court erred by setting aside a jury 

verdict for an amount less than the special 

damages upon the motion of the defendant. The 

defendant lacks standing and authority to object 

to a verdict of less than the special damages and 

did not establish the basis for a verdict of less 

than the special damages. Only the plaintiff may 

raise such an issue. 

II. Analysis 

 At the outset, it is important to state what this case does 

not involve. The issue before the Court does not affect in any 

manner our jurisprudence concerning a plaintiff’s request to set 

aside a jury verdict upon allegations that it is inadequate as a 

matter of law, nor does this case involve an assertion that the 

amount of the damages award shows that the award was the product 

of misapplication of the law. This case involves the narrow 

question whether a defendant can challenge a jury’s verdict for 

a plaintiff on the sole grounds that it is inadequate as a 

matter of law. Both parties focus primarily upon two opinions 

of this Court, Miles v. Rose, 162 Va. 572, 175 S.E. 230 (1934), 

and Short v. Long, 197 Va. 104, 87 S.E.2d 776 (1955), in support 

of their contentions. 

 The case of Miles v. Rose involved consolidation of two 

related personal injury actions. R. L. Miles, Jr. (“Miles”) was 

the driver of one motor vehicle that collided with another motor 

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vehicle operated by T. E. Denton (“Denton”). Franklin H. Rose 

and Harold Hodges were Denton’s passengers at the time of the 

collision. The passengers each brought suit against Miles and 

Denton for their personal injuries arising out of the collision. 

Although service was obtained upon Denton, Denton filed no 

responsive pleadings and did not participate in the trial of 

either case. Miles filed responsive pleadings denying 

negligence on his part and pleading contributory negligence of 

the plaintiff in each case. Additionally, we characterized 

Miles’ pleadings as “inferentially” pleading that Denton was 

guilty of the negligence which proximately caused the accident. 

The two cases were tried by the same jury upon the same evidence 

and upon the same instructions. We observed that the cases were 

tried against Miles only, not Denton. Miles, 162 Va. at 575-80, 

175 S.E. at 231-33. 

 Instructions were given to the jury on the subject of joint 

enterprise, imputable negligence, and contributory negligence. 

Id. at 581-82, 175 S.E. at 233-34. Although we noted that 

plaintiffs were entitled to judgment by default against Denton, 

he was not present at trial and did not participate in the 

proceedings. Id. at 592, 175 S.E. at 238. Nonetheless, 

Denton’s “presence” and the issue of his potential negligence 

permeated the trial. For example, the trial court instructed 

the jury that 

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if they believe from the evidence that defendant 

R. L. Miles, Jr., was guilty of negligence which 

was a proximate cause of the accident, yet, if 

they further believe from the evidence that the 

driver of the Denton car was likewise guilty of 

negligence contributing to the accident, and that 

at the time thereof the plaintiff and said driver 

were using the automobile for their mutual 

pleasure and advantage, and were engaged in a 

joint enterprise, then any negligence of the 

driver is imputable to the plaintiffs, and if it 

in the slightest degree contributed to the 

accident and injuries to the plaintiff, or either 

of them, such one cannot recover of the defendant 

R. L. Miles, Jr. 

Id. at 582, 175 S.E. at 234. 

 Additionally, the court instructed the jury “that if they 

believe from the evidence that the proximate cause of the injury 

suffered by these plaintiffs was solely due to the negligence of 

the driver of the car in which they were riding, then they 

should find for the defendant, R. L. Miles, Jr.” Id. at 581-82, 

175 S.E. at 234. Miles objected to the last instruction 

alleging that it was misleading the jury by “inferentially” 

excluding other theories upon which a defense verdict could be 

rendered. Id. at 582, 175 S.E. at 234. Upon consideration of 

the evidence, the jury rendered a verdict of $750 in favor of 

Hodges against Miles and $750 in favor of Rose against Miles. 

Id. at 583, 175 S.E. at 234. 

 Miles appealed and maintained, among other assignments of 

error, that the trial court erred by refusing to set aside the 

verdict in favor of each plaintiff because “the smallness of the 

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verdicts in these cases indicates either (1) that ‘the jury 

recognized that the plaintiffs were not entitled to any recovery 

against Miles’ or (2) that the jury applied the doctrine of 

comparative negligence . . . .” Id. at 595, 175 S.E. at 240. 

Considering whether the defendant could request the trial court 

to set aside a verdict and order a new trial because of an 

inadequate verdict to the plaintiff, we stated: 

 The general rule is that in a personal 

injury case a verdict against a defendant will 

not be set aside on his motion on the ground that 

the damages awarded are less than the plaintiff 

was entitled to on the evidence. The rationale 

of the rule is that the defendant could not have 

been damaged by such a verdict. 

Id. at 595-96, 175 S.E. at 240. 

 However, the unusual circumstances presented by the case 

justified an exception to the general rule, and we stated the 

following: 

 When, as here, A and B are sued jointly for 

personal injuries alleged to have been caused by 

their independent but concurring negligence, and 

the great preponderance of the evidence tends to 

show that A was, and B was not, guilty of 

negligence which was a proximate cause of the 

injuries, if the jury returns a verdict against B 

alone for a sum plainly greatly less than would 

appear to be a reasonable compensation for the 

injuries which the uncontradicted evidence shows 

the plaintiff suffered, the smallness of the 

verdict casts serious suspicion on the integrity 

of the finding by the jury that B was liable. 

Particularly is this true where, as in this case, 

the plaintiff’s counsel in his argument invited 

and urged the jury to exculpate A and fix the 

whole blame on B for the manifest purpose of 

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escaping the possible imputation of A’s 

negligence to his client. 

Id. at 596, 175 S.E. at 240. 

 We considered the issue again in the case of Short v. Long. 

This case involved a collision between an automobile and a truck 

wherein the driver of the automobile sued for personal injuries. 

The truck driver denied negligence, asserted contributory 

negligence, and counter-claimed for his own personal injuries 

and property damage to his truck. The jury denied a recovery to 

the plaintiff, Short, and awarded the defendant, Long, $400 in 

damages on his counter-claim. Short, 197 Va. at 105, 87 S.E.2d 

at 777. 

 Among other assignments of error, Short argued that the 

trial court erred by not setting aside the verdict and granting 

a new trial because 

[t]he verdict of $400 is so inadequate and 

disproportionate to the damages proved by Long as 

to show that the jury ignored the court’s 

instructions and did not make a finding upon the 

issue of whose negligence caused the collision 

but undertook to apportion the damages between 

the parties without consideration of liability. 

Id. We stated that there was “credible evidence to support 

either litigant’s version” of how the collision occurred and 

further stated that it was within the jury’s province to 

determine the question of each party’s negligence. Id. at 109, 

87 S.E.2d at 780. Upon the question whether Short could 

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complain of an inadequate verdict in favor of Long, we cited 

Miles for the general rule and further stated that in Miles

“there were unusual circumstances that prompted the Court” to 

create the exception to the general rule. Id. at 110, 87 S.E.2d 

at 780. Finding no such “unusual circumstances,” we affirmed 

the judgment in favor of Long. Id. at 111, 87 S.E.2d at 780. 

 In the case before us, it is readily apparent that the 

trial court, upon the urging of Smith, transmuted the narrow 

exception recognized in Miles into a general rule. In doing so, 

the trial court erred. 

 Smith cites a series of cases which she contends support 

her position that a defendant has the right to have a verdict 

set aside and a new trial ordered when a plaintiff’s verdict is 

inadequate.3 What Smith fails to recognize is that each of the 

cases cited involves a plaintiff’s request to set aside a 

plaintiff’s verdict on the grounds that it was inadequate. None 

of the cases remotely stands for the proposition that a 

defendant may complain of a plaintiff’s inadequate jury award. 

 Today, we reiterate that absent unusual circumstances such 

as those we found in Miles, in an ordinary and usual action in 

tort, the trial court may not set aside a verdict and order a 

 3 Walker v. Mason, 257 Va. 65, 510 S.E.2d 734 (1999); Bowers 

v. Sprouse, 254 Va. 428, 492 S.E.2d 637 (1997); Bradner v. 

Mitchell, 234 Va. 483, 362 S.E.2d 718 (1987); Rawle v. 

McIlhenny, 163 Va. 735, 177 S.E. 214 (1934). 

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new trial based upon a motion by the defendant claiming that the 

verdict for the plaintiff was inadequate. Accordingly, we will 

reverse the judgment order dated March 29, 2002 rendering 

judgment in favor of Smith and enter final judgment upon the 

first jury verdict in favor of Shepherd in the amount of $65,000 

with costs and interest from May 1, 2001. 

Reversed and final judgment. 

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