Johnson v. Smith

• Citation: 241 Va. 396,403 S.E.2d 685
• Decision Date: 19 April 1991
• Docket Number: No. 901049,901049
• Parties: Deborah J. JOHNSON, Administrator, etc. v. Joseph Dwayne SMITH, et al. Record
• Court: Virginia Supreme Court

Page 685

403 S.E.2d 685

241 Va. 396

Deborah J. JOHNSON, Administrator, etc. v. Joseph Dwayne SMITH, et al.

Record No. 901049.

Supreme Court of Virginia.

April 19, 1991.

Peter C. Burnett (Burnett & Williams, on brief), for appellant.

William G. McMurtie (John J. Wall, on brief), for appellees.

Present: CARRICO, C.J., STEPHENSON, RUSSELL, WHITING, LACY, and HASSELL, JJ., and HARRISON, Retired Justice.

CARRICO, Chief Justice.

In this wrongful death case, the jury returned a verdict in favor of the plaintiff-administrator. The sole question for decision is whether the trial court erred in refusing to set the verdict aside as inadequate.

James Melvin Johnson was killed on June 30, 1988, when the motorcycle he was operating and a van driven by Joseph Dwayne Smith collided at the intersection of Routes 287 and 854 in Loudoun County. Johnson and Smith were proceeding in opposite directions on Route 287, and the collision occurred when Smith attempted to make a left turn onto Route 854. Smith told the investigating state trooper that he "never saw the motorcycle before impact."

Johnson's widow, Deborah J. Johnson, qualified as his administrator and filed a motion for judgment against Smith and the owner of the van, Leesburg Southern Electric, Inc. (the defendants), seeking damages on behalf of herself and her two children, Keri, aged 11 at time of trial, and Jamie, aged 5.

For the five years prior to his death, Johnson had been employed by Amtrak as a commissary worker earning $26,915 annually. His supervisor testified he was a "model employee." An expert witness estimated the loss of income resulting from Johnson's death at $900,000, exclusive of the amount Johnson earned from a lawn maintenance business he conducted on the side.

Twenty-eight years old at the time of the accident, Johnson had enjoyed good health and led an active life. He was an attentive father, "the best," and was often observed playing with his children "in the yard." He "loved [Keri] very much." Jamie 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.

Code § 8.01-52 provides in part that, in a wrongful death case, "[t]he verdict or judgment of the court trying the case without a jury shall include, but may not be limited to," damages for the following:

1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;

2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;

3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;

4. Reasonable funeral expenses; and

5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

Incorporating elements 1, 2, and 4, the trial court submitted the issue of damages to the jury in an instruction which required the jury to return a special verdict. Using the form prescribed by the instruction, the jury awarded Johnson's widow $50,000 for lost income, $20,000 for lost services and protection, $5,788.45 for funeral expenses, and nothing for sorrow, mental anguish, and solace. The jury awarded each child $30,000 for lost income, nothing for sorrow, mental anguish, and solace, and nothing for lost services and protection. The trial court denied the plaintiff's motion to set aside the verdict on the ground of inadequacy and entered judgment on the verdict.

The plaintiff contends that the jury award is inadequate as a matter of law and, hence, that the trial court erred in refusing to set the verdict aside. The plaintiff argues that the award of $110,000 for lost income is "inadequate on its face," representing only about two years of decedent's income for the widow and only a little more than one year for each child. Furthermore, the plaintiff maintains, the jury's failure to consider all the proper elements of damage is "most glaringly demonstrated" by the award of nothing to any of the survivors for sorrow, mental anguish, and solace and nothing to the children for lost services and protection.

In support of the jury's action, the defendants say that their cross-examination of the plaintiff's expert witness raised "serious questions as to the soundness of his opinion concerning the projected lost income of the decedent." Further, the defendants maintain that in their cross-examination of Johnson's widow, they

challenged the plaintiff's assertions as to the stability of the decedent's job by inquiring as to the amounts listed on their tax returns for deductions taken by the decedent for job-hunting expenses.... Notwithstanding the presence of these deductions on these returns, the plaintiff denied that the decedent had been jobhunting.... In addition, defendants' counsel also challenged allegations by the plaintiff as to the increased financial burden caused by the death of the decedent, particularly with respect to maintaining the house and providing for child care. For example, in response to a question concerning the assistance provided by her family, the plaintiff admitted that she received a lot of financial help from both family and friends.... With respect to use of her wood stove, which the plaintiff had previously testified that she did not use because she could not afford the wood, the plaintiff denied that she gratuitously received wood from her brother and his friends on more than one occasion, even when confronted with a prior statement to this effect in her deposition....

This recitation is nothing more than an exercise in nit-picking. Furthermore, it is...