Rice v. Charles

Present: 	All the Justices
JOHNNIE W. RICE, CO-ADMINISTRATOR
OF THE ESTATE OF LEONA LYNN RICE,
DECEASED, ET AL.
v. Record No. 991880 OPINION BY JUSTICE CYNTHIA D. KINSER
June 9, 2000
CLIFFORD ANTHONY CHARLES
FROM THE CIRCUIT COURT OF DICKENSON COUNTY
Keary R. Williams, Judge
In this wrongful death action, we address two separate
issues: (1) whether the circuit court erred by striking the
defendant’s contributory negligence defense because his
testimony in support of that defense was not corroborated
as required by Code § 8.01-397, and (2) whether the circuit
court erred in denying the plaintiff’s motion for a new
trial on the issue of damages because the jury verdict was
only for the exact amount of the decedent’s funeral
expenses. 	Finding no error with regard to the first issue
but concluding that the jury verdict is inadequate as a
matter of law, we will reverse in part, and affirm in part,
the judgment of the circuit court.
PRIOR PROCEEDINGS AND FACTS
Johnnie W. and Rita S. Rice (the Rices), co-
administrators of the estate of their daughter Leona Lynn
Rice (Leona), filed a motion for judgment in the circuit
court against Clifford Anthony Charles pursuant to

Virginia’s Death by Wrongful Act statute, Code §§ 8.01-50
through -56.1 They alleged that Leona died as a result of
injuries sustained in a motor vehicle accident in which she
was a passenger in a vehicle driven by Charles. 	At trial,
Charles admitted that he was negligent and that his
negligence was a proximate cause of the accident and
Leona’s death. 	However, Charles proceeded on a defense of
contributory negligence.
At the close of all the evidence, the Rices moved to
strike the defense of contributory negligence on the basis
that there was insufficient corroboration of Charles’
testimony, as required under Code § 8.01-397 (commonly
referred to as the “dead man’s statute”). 	The circuit
court sustained the motion and thereafter submitted the
case to the jury on the sole issue of damages. 	The jury
then returned a verdict for the Rices in the amount of
$7,283.27 for “reasonable funeral expenses.” 	That figure
represented the exact amount of Leona’s funeral and related
burial expenses2 incurred by the Rices. 	The jury did not
1 The purpose of the Death by Wrongful Act statute is
to compensate a decedent’s statutory beneficiaries for
their loss resulting from the decedent’s death. 	Wilson v.
Whittaker, 207 Va. 1032, 1036, 154 S.E.2d 124, 128 (1967).
2 The funeral home bill was $5,287.32, and the charge
for the cemetery monument was $1,995.95, for a total of
2

award any damages to the statutory beneficiaries, Leona’s
parents and her older sister Beverly Rice McClanahan, for
sorrow, mental anguish, and loss of solace. 	See Code
§§ 8.01-52 through -54.
The Rices subsequently moved to set aside the verdict
and to award a new trial on the issue of damages. 	The
basis of their motion was the fact that the jury had
awarded damages only for funeral expenses. 	The Rices
argued that, by returning such a verdict, the jury
disregarded the court’s instructions and the uncontroverted
evidence. 	The circuit court denied the motion and entered
judgment for the Rices in accordance with the jury verdict.
This appeal followed.
In accordance with well-established principles, we
review the evidence in the light most favorable to the
Rices, the prevailing parties at trial. 	Morgen Indus.,
Inc. v. Vaughan, 252 Va. 60, 62, 471 S.E.2d 489, 490
(1996); Besser Co. v. Hansen, 243 Va. 267, 269, 415 S.E.2d
138, 139 (1992); Penn v. Manns, 221 Va. 88, 90, 267 S.E.2d
126, 127 (1980). 	On the evening of the accident, Leona and
Charles planned to see a movie but decided to “go[]
cruising around for a while” in Charles’ pickup truck
$7,283.27. 	Hereinafter, the funeral and related burial
expenses are referred to as “funeral expenses.”
3

before the movie started. 	During their drive, Leona and
Charles saw J.D. Baker on a “four-wheeler” in a parking
lot. 	They stopped and asked Baker to go with them to the
movie, and he agreed to do so. 	Leona and Charles then
followed Baker to his home where Charles and Baker
subsequently decided to buy beer instead of going to a
movie. 	According to Charles, Leona heard the discussion
about purchasing beer and did not object to the change in
plans, but neither did she encourage or ask anyone to buy
beer.
Because all three of these individuals were under the
age of 21 years and could not legally purchase alcoholic
beverages, see Code § 4.1-305, they went to the home of
Scott Mullins. 	The parties stipulated that, upon arriving
there, Charles asked Mullins to buy beer for him. 	Mullins
agreed to do so, but McClanahan, who was dating Mullins at
that time, objected. 	As a result, McClanahan and Mullins
“got into an argument,” and Leona, Charles, and Baker left
Mullins’ house while McClanahan and Mullins were still
arguing. 	According to McClanahan, Leona said that she was
“going straight home.”
Charles testified that Leona then got back in Charles’
truck, and, together with Baker, they proceeded to a local
pharmacy where Charles talked to an individual who agreed
4

to purchase two cases of seven-ounce bottles of beer for
Charles. 	After getting the beer and putting it in the back
of the truck, Charles drove to Enochs Branch in Dickenson
County, where he and Baker drank some of the beer and
discussed where to go from there.3 Leona did not drink any
beer. 	Eventually, all three of them got back in Charles’
pickup truck. 	Leona sat in the middle between Charles and
Baker, and a case of beer was placed in the front
floorboard. 	Charles testified that he then drove toward
Haysi, and that, while he was driving, and in Leona’s
presence, Baker handed him additional beers to drink.
According to Charles, Leona did not try to stop him from
drinking, did not request to get out of the truck, and did
not ask him to take her home, even though they drove by her
house on the way to Haysi. 	Although Leona had her
learner’s permit, see Code § 46.2-334, she also did not
offer to drive.
Continuing, Charles testified that, just before the
accident occurred, he stopped to use the bathroom and
3 Except for the stipulation regarding the events at
Mullins’ house and McClanahan’s testimony about the same
incident, the evidence concerning Charles’ and Baker’s
purchase and consumption of beer before the accident as
well as the details of how the accident occurred are found
only in Charles’ testimony. 	Baker did not testify at
trial.
5

noticed that he had a “buzz” and could feel the effect of
the alcohol. 	At that point, Charles had consumed five or
six of the seven-ounce bottles of beer in slightly less
than two hours, and he had not eaten lunch or dinner that
day. 	However, Charles stated that he had no trouble with
his driving and did not believe that anyone would have
considered him intoxicated. 	Charles further testified that
he thought Leona would have told him if she had been
concerned for her safety.
The accident occurred as Charles was coming into a
“steep curve” too fast and lost control of his truck.
Charles stated that he thought he had already driven
through that curve. 	The truck flipped, and Charles and his
two passengers were thrown out of the truck. 	When Charles
found Leona after the accident, she was dead.
Approximately an hour and a half after the accident,
Charles’ blood alcohol content (BAC) measured .08 percent
by weight by volume.4 A forensic toxicologist, whom Charles
called to testify at trial, opined that Charles’ BAC at the
time of the accident could have been as low as .07 percent
or as high as .10 percent, and that a BAC in that range
would have adversely affected Charles’ judgment, attention,
6

concentration, and reaction time. 	However, the
toxicologist also testified that, considering Charles’
experience with drinking large quantities of alcohol, he
would not likely have been “visibly drunk” to an objective
observer.
Charles and Leona had been dating more than a year at
the time of her death and were engaged to be married.
Charles testified that Leona had ridden with him many times
when he was drinking and driving, and that they had argued
about his drinking. 	At Leona’s suggestion, Charles had
entered a detoxification center a few months before the
accident, but he had left the center before completing the
detoxification program.
Several witnesses testified about the impact of
Leona’s death on her family. 	A neighbor of the Rices
established that Leona had a close relationship with her
mother and that Leona’s death upset the Rices. 	The
neighbor added that Mrs. Rice continues to suffer because
of the death of her daughter and is not dealing well with
the loss. 	One of Leona’s friends also testified that Leona
had a good relationship with both McClanahan and Mrs. Rice,
and that the family was “heartbroken” when Leona died.
4 Charles’ BAC was documented by a Certificate of
Analysis from the Commonwealth of Virginia Department of
7

Mrs. Rice testified that she had a “very special”
relationship with Leona and that, when she learned of
Leona’s death, she experienced “the awfullest feeling that
any person can have.” 	Mrs. Rice also stated that
McClanahan and Leona were very close, and that Leona and
Mr. Rice likewise had a good relationship.
Mrs. Rice acknowledged that she did not encourage
Leona’s relationship with Charles when the couple began
dating. 	Mrs. Rice also stated that Leona had told her
about Charles’ drinking problem but had assured her parents
that she would not ride in a car with someone who had been
drinking.
Mr. Rice also testified that he loved Leona very much,
that he spent a lot of time outdoors with her, and that his
entire family was very close. 	He stated that he felt hurt
and anger when he learned of Leona’s death, and that her
loss will “hurt [him] all [his] life.” 	Mr. Rice further
testified that Leona’s death continues to affect his
family, that his wife cries continuously, and that he has
trouble dealing with his grief. 	He also testified that
McClanahan has changed since Leona’s death and is not as
happy as she used to be.
Criminal Justice Services, Division of Forensic Science.
8

McClanahan stated that she and Leona were close even
though she was four years older than Leona, and that she
still suffers over Leona’s death. 	Leona had told her about
Charles’ problem with drinking alcoholic beverages.
Consequently, McClanahan had warned Leona not to ride with
Charles after he had been drinking, and, according to
McClanahan, Leona assured her that she would not do so.
McClanahan related an incident just a few months prior to
Leona’s death when Leona had asked to get out of a vehicle
because other people had beer in the vehicle.5
ANAYLSIS
This appeal presents two separate issues. 	First, the
Rices assign error to the circuit court’s denial of their
motion for a new trial on the issue of damages. 	In an
assignment of cross-error, Charles asserts that the circuit
court erred by striking his defense of contributory
negligence because his testimony in support of that defense
was not corroborated. 	We will address the assignment of
cross-error first.
With regard to that issue, Charles contends that the
circuit court erroneously required corroboration of all the
5 Leona’s driver’s education teacher also testified
that he had instructed Leona’s class about “zero
tolerance,” i.e., not to ride with a driver under the age
of 21 who has consumed any alcohol.
9

elements of his contributory negligence defense. 	Instead,
Charles claims that, under Code § 8.01-397, the court
should only have required “that [his] account of the
accident be supported or strengthened by the attendant
circumstances or other testimony.”
Elaborating, Charles argued orally that he had to
prove three elements of his contributory negligence
defense: (1) that Leona knew or should have known that it
was dangerous to ride in a motor vehicle being driven by an
individual who was or had been consuming alcoholic
beverages; (2) that Leona knew or should have known that
Charles was drinking on the evening in question and that
his ability to drive was consequently impaired, and that
she, nevertheless, voluntarily rode with him while he was
driving his truck; and (3) that Leona’s presence in
Charles’ truck at the time of the accident proximately
caused her death. 	Charles acknowledged that the “vast
majority” of the evidence with regard to the second element
came solely from his testimony.6 Nonetheless, he claims
that, based on the stipulation regarding the events at
Mullins’ house and McClanahan’s testimony, it is reasonable
6 Charles established the first element with evidence
other than his testimony, and he admitted the third
element, that his negligence proximately caused the
accident and Leona’s death.
10

to infer that Leona heard the discussion about purchasing
beer and the argument that ensued between her sister and
Mullins, and that she therefore knew Charles was going to
drink and drive that evening. 	This same evidence,
according to Charles, also supports his testimony that he
and Leona were together approximately an hour and one-half
before the accident. 	Finally, Charles posits that his BAC
level corroborates the fact that he had consumed alcohol
before the accident and that his ability to drive was
impaired. 	Thus, he claims that his testimony on this
critical element of his defense was sufficiently
corroborated. 	We do not agree.
Code § 8.01-397 provides that “[i]n an action by or
against a person who, from any cause, is incapable of
testifying . . . no judgment or decree shall be rendered in
favor of an adverse or interested party founded on his
uncorroborated testimony.” 	The statute was designed, in
part, “to prevent a surviving party from having the benefit
of his own testimony where, by reason of the death of his
adversary, the latter’s personal representative is deprived
of the decedent’s version of the [facts].” 	Haynes, Ex’x v.
Glenn, 197 Va. 746, 752, 91 S.E.2d 433, 437 (1967).
We do not question that certain aspects of Charles’
testimony concerning the events of the evening in question
11

and the circumstances of the accident were corroborated by
other evidence. 	However, the critical inquiry is whether
his testimony presented an essential issue that, if not
corroborated, would defeat his contributory negligence
defense. 	See Hereford v. Paytes, 226 Va. 604, 608, 311
S.E.2d 790, 792 (1984). 	We have previously recognized, and
we do so again in this appeal, that “it is impossible to
formulate a fixed rule as to the corroboration necessary in
every situation” because each case must be decided on its
particular facts. 	Id.
However, we have stated some general principles that
are pertinent here. 	“It is not necessary that the
corroborative evidence should of itself be sufficient to
support a verdict, for then there would be no need for the
adverse or interested party’s testimony to be
corroborated.” 	Brooks, Adm’r v. Worthington, 206 Va. 352,
357, 143 S.E.2d 841, 845 (1965) (citing Burton’s Ex’r v.
Manson, 142 Va. 500, 509, 129 S.E. 356, 359 (1925); Davies
v. Silvey, Adm’x, 148 Va. 132, 137, 138 S.E. 513, 514
(1927); Clay v. Clay, 196 Va. 997, 1002, 86 S.E.2d 812, 815
(1955)). 	“Corroborating evidence tends to confirm and
strengthen the testimony of the witness[,]” and it may come
from other witnesses as well as from circumstantial
evidence. 	Hereford, 226 Va. at 608, 311 S.E.2d at 792. 	It
12

is not essential that a survivor’s testimony be
corroborated on all material points. 	Id.; Brooks, 206 Va.
at 357, 143 S.E.2d at 845.
The corroboration, to be sufficient under the statute,
however, must at least tend, “in some degree, of its
own strength and independently, to support some
essential allegation or issue raised by the pleadings
[and] testified to by the [surviving] witness . . .
which allegation or issue, if unsupported, would be
fatal to the case.”
Hereford, 226 Va. at 608, 311 S.E.2d at 792 (quoting
Burton’s Ex’r, 142 Va. at 508, 129 S.E. at 359). 	(First
emphasis added.) 	Accord Diehl, Adm’x v. Butts, 255 Va.
482, 489, 499 S.E.2d 833, 838 (1998).
In the present case, we view these principles in the
context of the necessary elements of Charles’ contributory
negligence defense. 	“[A] guest may be guilty of
contributory negligence if [the guest] knows or reasonably
should know that [the] driver had been drinking
intoxicating liquor[7] to an extent likely to affect the
manner of . . . driving and voluntarily continues as a
passenger after a reasonable opportunity to leave the
automobile.” 	Meade v. Meade, 206 Va. 823, 827, 147 S.E.2d
7 While the term “intoxicating liquor” is not defined
in the Code, it appears to encompass beer, as well as wine,
spirits, alcohol, and other such substances. 	See Code
§ 4.1-100 (defining “[a]lcoholic beverages” as including
all those substances, and further defining “[i]ntoxicated”
with reference to “alcoholic beverages”).
13

171, 174 (1966) (citing Seaboard Air Line Ry. Co. v.
Terrell, 149 Va. 344, 354-55, 141 S.E. 231, 235 (1928);
Yorke v. Maynard, 173 Va. 183, 188, 3 S.E.2d 366, 369
(1939); Bates, Adm’x v. Thompson, 200 Va. 501, 506, 106
S.E.2d 728, 732 (1959)). 	It is not sufficient merely to
establish that the driver of an automobile has been
drinking and that the passenger knew that fact. 	Meade, 206
Va. at 827, 147 S.E.2d at 174. 	The evidence must also
prove that the driver’s ability to operate the vehicle was
impaired because of the consumption of alcoholic beverages,
that the passenger knew, or in the exercise of ordinary
care should have known, of the driver’s impaired ability,
and that the passenger nevertheless entered or continued to
ride in the vehicle. 	Id.
Thus, we conclude that the question whether Leona knew
or should have known that Charles’ ability to drive was
impaired because of his consumption of beer and she,
nevertheless, chose to continue to ride with him is the
sole essential issue raised by Charles’ testimony regarding
his contributory negligence defense, which, if unsupported
by corroborating evidence, is fatal to his defense. 	See
Hereford, 226 Va. at 608, 311 S.E.2d at 792; see also
Vaughn v. Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130
(1994) (holding that Code § 8.01-397 required corroboration
14

of sole essential allegation on which claim was based);
Ratliff, Adm’x v. Jewell, 153 Va. 315, 326, 149 S.E. 409,
412 (1929) (“witness need not be corroborated on all
material points, but must be supported on some essential
fact whose establishment is necessary to sustain the
judgment”). 	We find no such corroborating evidence in the
record.
Even if we accept the stipulation and McClanahan’s
testimony about the events at Mullins’ house as
corroboration of Charles’ testimony that Leona knew about
the plans to purchase beer, there nevertheless is not even
a scintilla of evidence that “tends to confirm and
strengthen” his assertion that Leona knew or should have
known that his ability to drive was impaired. 	Hereford,
226 Va. at 608, 311 S.E.2d at 792. 	Instead, we find
evidence supporting a different conclusion. 	Charles
testified that, even though he felt a “buzz” when he
stopped to use the bathroom, he did not have any trouble
with his driving and did not believe anyone would view him
as intoxicated. 	Furthermore, the toxicologist stated that
Charles’ degree of intoxication would not have been
apparent to an objective observer because of his history of
excessive drinking. 	Thus, rather than having corroborating
evidence that Leona knew that Charles’ ability to drive was
15

impaired that evening, the record actually contains
evidence indicating the opposite. 	Nor is there evidence to
corroborate Charles’ testimony that Leona voluntarily
continued to ride in his truck with him even though she
allegedly knew the extent of his drinking on that evening,
and never asked to get out of the truck or to go home.
Thus, we conclude that, while corroboration on all
material points of Charles’ contributory negligence defense
is not necessary, the essential issue raised by his
testimony remains unsupported. 	Hence, the circuit court
did not err in striking Charles’ contributory negligence
defense and submitting the case to the jury solely on the
issue of damages. 	Generally, when there is more than a
scintilla of corroborating evidence, the question whether
testimony has been sufficiently corroborated is an issue
for the jury to resolve. 	Brooks, 206 Va. at 357, 143
S.E.2d at 845 (citing Timberlake’s Adm’r v. Pugh, 158 Va.
397, 403, 163 S.E. 402, 404 (1932)). 	However, for the
reasons already stated, the circuit court correctly
determined that Charles’ testimony was not corroborated as
a matter of law. 	See Whitmer v. Marcum, Adm’x, 214 Va. 64,
68, 196 S.E.2d 907, 910 (1973)(“corroboration need not
always present a jury issue”).
16

Since Charles admitted his liability and the court
properly struck his defense of contributory negligence, the
only issue for the jury’s consideration was that concerning
the question of damages. 	Thus, we turn to the Rices’
assignment of error regarding the amount of damages
awarded.
The Rices argue that the jury verdict in the exact
amount of Leona’s funeral expenses was inadequate as a
matter of law because the verdict failed to compensate the
statutory beneficiaries for the non-monetary elements of
damage, such as sorrow, mental anguish, and loss of solace,
despite uncontroverted evidence with regard to such
damages. 	In response, Charles contends that, because the
jury was instructed that it “may” consider items of non-
economic damages but “shall” award damages for funeral
expenses, the verdict is proper and supported by the
evidence.8 We agree with the Rices.
8 The entire jury instruction on this issue states the
following:
If you find your verdict for the plaintiffs, then in
determining the damages to which they are 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 defendant as damages
suffered by the beneficiaries:
(1) 	any sorrow, mental anguish, and loss of solace
suffered by the beneficiaries. 	Solace may
17

In Bowers v. Sprouse, 254 Va. 428, 492 S.E.2d 637
(1997), this Court held that “a jury award in a personal
injury action which compensates a plaintiff for the exact
amount of the plaintiff’s medical expenses and other
special damages is inadequate as a matter of law,
irrespective of whether those damages were controverted.”
Id. at 431, 492 S.E.2d at 639. 	Similarly, in Johnson,
Adm’r v. Smith, 241 Va. 396, 403 S.E.2d 685 (1991), we
examined the adequacy of a damage award in a wrongful death
action. 	In Johnson, the verdict represented only about two
years of the decedent’s income for the widow, and only
slightly more than one year of the decedent’s income for
each of two children. 	The verdict did not include any sum
for sorrow, mental anguish, and solace for the decedent’s
widow and children, nor any sum for the children’s lost
services and protection. 	Id. at 399, 403 S.E.2d at 686.
We found that verdict “incomprehensible” and concluded that
“the jury must have misconceived or misunderstood the facts
include society, companionship, comfort,
guidance, kindly offices, and advise [sic] of the
decedent.
If you award damages, you may distribute these damages
among Rita Sue Rice, Johnnie W. Rice, and Beverly Rice
McClanahan.
If you find your verdict for the plaintiff[s], you
shall award damages for:
18

or the law.” 	Id. at 400-01, 403 S.E.2d at 687. 	Accord
Hall, Adm’x v. Hall, 240 Va. 360, 365, 397 S.E.2d 829, 832
(1990).
We reach the same conclusion in this case. 	The jury
verdict for the exact amount of Leona’s funeral expenses
was inadequate as a matter of law because it failed to
compensate her statutory beneficiaries for any other items
of damage despite the fact that the court instructed the
jury that Charles was liable for Leona’s death and any
damages suffered by her parents and her sister. 	By
returning a verdict for only the amount of the funeral
expenses, the jury demonstrated a misunderstanding of
either the law or the facts, or both. 	Furthermore, the
evidence at trial clearly supported the conclusion that
Leona’s statutory beneficiaries experienced sorrow, mental
anguish, and loss of solace as a result of Leona’s death.
Thus, they were entitled to compensation for these elements
of damage. 	See Bowers, 254 Va. at 431, 492 S.E.2d at 638.
Our conclusion is not changed by the fact that the
circuit court instructed the jury that it “shall award
damages for . . . reasonable funeral expenses” but “may
consider . . . any sorrow, mental anguish, and loss of
solace suffered by the beneficiaries.” 	(Emphasis added.)
(1) reasonable funeral expenses.
19

We agree with Charles that this instruction is the law of
this case because the circuit court gave it to the jury
without any objection by the Rices, see King v. Sowers, 252
Va. 71, 77, 471 S.E.2d 481, 484 (1996), and that the
instruction does not incorporate the precise language of
Code § 8.01-52.9 However, we do not accept Charles’
argument that the jury followed the instructions given to
it and elected, as it was told it could by use of the term
“may,” not to award any damages for non-economic losses.
The damage instruction given to the jury in Bowers
also used the term “may” with regard to the elements of
damage to be considered by the jury. 	254 Va. at 431 n.3,
492 S.E.2d at 638 n.2. 	Notwithstanding that fact, we did
not approve the verdict, but instead concluded that the
jury verdict for the exact amount of the plaintiff's
medical expenses and other special damages in that case was
inadequate as a matter of law. 	Id. at 431, 492 S.E.2d at
639. 	Similarly, the use of the term “may” rather than
“shall” with regard to damages for sorrow, mental anguish,
9 Code § 8.01-52 states that a verdict in a wrongful
death action “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;
. . . [and]
4. Reasonable funeral expenses . . . .
20

and loss of solace does not justify the jury’s failure in
this case to compensate the statutory beneficiaries for any
other items of damage.
For these reasons, we will affirm the judgment of the
circuit court in part, reverse in part, and remand for a
new trial solely on the issue of damages. 	See Rawle v.
McIlhenny, 163 Va. 735, 748, 177 S.E. 214, 220 (1934) (when
evidence is insufficient to support verdict finding
defendant not liable, new trial is limited to question of
damages).
Affirmed in part,
reversed in part,
and remanded.
21