Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Massie Firmstone.  

1998 Henderson v. Henderson, 255 Va. 122, 495 S.E.2d 496.

By deed of gift Earl Henderson conveyed to his granddaughter Terry Henderson a parcel of land. At time of conveyance grandfather was 92 years’ old. Grandfather thereafter filed Bill of Complaint seeking rescission of deed of gift on grounds of undue influence and constructive fraud. Fraud, whether actual or constructive, must be strictly proved by clear and convincing evidence that a false representation of material fact was made, innocently or negligently, and that injured party suffered damage as a result of reliance on misrepresentation and that false representation was made to induce reasonable person to believe it. Here grandfather sought to prove that Terry falsely represented that there would not be any taxes due as result of conveyance. Grandfather’s own testimony however was that Terry told him there would be small income tax due. Therefore grandfather’s testimony fails to support misrepresentation alleged. In this case grandfather did not offer any clarification or explanation of his testimony, and therefore this constitutes judicial admission under Massie v. Firmstone.

1996 Norfolk & W. Ry. v. Chittum, 251 Va. 408, 468 S.E.2d 877.

Doctrine does not apply to adverse statement standing in isolation from litigant’s testimony as a whole. Damaging statement made in one part of testimony must be considered in light of explanation of such statement made in later part of testimony.

1992 Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 419 S.E.2d 627.

Slip and fall as elderly plaintiff stepped on elevator that was misaligned. Plaintiff presented testimony of eye doctor as to her problems with sight. Fact that plaintiff testified that she believed she could have seen misalignment if looking down did not preclude testimony of eye doctor since plaintiff’s testimony simply statement of opinion, therefore, Massie v. Firmstone not applicable.

1989 Lucas v. HCMF Corp., 238 Va. 446, 384 S.E.2d 92.

While party’s testimony is binding upon him, same is not true of testimony of party’s witness. Where party presents two or more witnesses with conflicting testimony, then party may rely on one more favorable.

1988 Payne v. Gloeckl, 236 Va. 356, 374 S.E.2d 32.

Rule as applied to tort actions is that litigant whose testimony, considered as whole, conclusively absolves alleged tortfeasor of actionable negligence forfeits cause of action against him.

1988 Charlten v. Craddock-Terry Shoe Corp., 235 Va. 485, 369 S.E.2d 175.

Suit for wrongful termination under Workers’ Compensation Act. Plaintiff’s expression of opinion as to reason for termination did not invoke Massie rule.

1987 Deskins v. T.H. Nichols Line Contractor, 234 Va. 185, 361 S.E.2d 125.

Plaintiff’s testimony concerning point of impact amounted to more than mere estimate or opinion. Testimony constituted unequivocal statement of fact within Deskins’ knowledge and he is bound by that.

1987 Transilift Equip., Ltd. v. Cunningham, 234 Va. 84, 360 S.E.2d 183.

This doctrine is not categorical or absolute. By definition it applies only to statements of fact made by litigant wherein facts are within his own knowledge and to necessary inferences therefrom. Rule does not apply to adverse statement standing in isolation from litigant’s testimony as whole. Rule is intended to compel exercise of good faith on part of litigant not to penalize him for honest mistakes or infirmities of memory. In this case, plaintiff was properly allowed to explain why his trial testimony was inconsistent with his earlier responses to discovery.

1986 Austin v. Jewell, 232 Va. 197, 349 S.E.2d 113.

Plaintiff in this case answered interrogatory seemingly absolving defendant of liability. Another interrogatory seemed different from this. Plaintiff then amended answers to first interrogatories. This did not bar plaintiff’s case under Massie.

1983 Hogan v. Carter, 226 Va. 361, 310 S.E.2d 666.

Litigant whose testimony, considered as whole, conclusively absolved alleged tortfeasor of negligence forfeits his claim against him. This rule does not apply to mere estimates of fact, such as speed or distance, or to statements of opinion. In this case plaintiff testified that she did not see oncoming car and did not believe that her driver had opportunity to see anything that she had not seen. This testimony is expression of opinion. She did not have same duty of lookout as did her driver. As such, Massie rule does not apply.

1982 Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675.

Massie doctrine applies only to “statements of fact” made by litigant; it does not apply to statements of opinion. When litigant-witness explains or clarifies adverse statement his testimony must be considered as whole.

1981 Evans v. Briley, 221 Va. 1042, 277 S.E.2d 184.

Plaintiff testified as to facts of accident. Plaintiff cannot then rely on defendant’s version of accident as alternative when that version is diametrically opposed to plaintiff’s. Plaintiff must recover on his version or not at all.

1980 Parker v. Davis, 221 Va. 299, 269 S.E.2d 377.

Party not bound by own estimates of speed and distance nor by statements of opinion.

1980 Wieringa v. Moody, 221 Va. 95, 266 S.E.2d 891.

If litigant, person of average intelligence and in possession of his faculties, testifies clearly and unequivocally to facts within his knowledge, he is bound thereby and cannot rely on contrary evidence of another party.

1977 Holland v. Holland, 217 Va. 874, 234 S.E.2d 65.

Clear and unequivocal testimony from plaintiff that defendant did nothing wrong was judicial admission that was binding on her and she may not recover.

1976 Erlich v. Hendrick Constr. Co., 217 Va. 108, 225 S.E.2d 665.

Rule that litigant’s testimony is binding on him applies to statements of facts and not to statements of opinion.

1976 Baines v. Parker, 217 Va. 100, 225 S.E.2d 403.

Plaintiff should not be allowed to profit at defendant’s expense by contradicting her own sworn statements concerning facts within her own knowledge. Such statements, when unequivocal and against her own interest, are judicial admissions, and, unless they are explained or clarified elsewhere in plaintiff’s testimony, she cannot disown them or adopt contrary statements made by others.

1975 Turner v. Manning, 216 Va. 245, 217 S.E.2d 863.

Plaintiff bound by his own testimony.

1973 Shelley v. West, 213 Va. 611, 194 S.E.2d 899.

Plaintiff’s testimony not absolutely binding on her as testimony was not clear and unequivocal and plaintiff had been severely injured in accident.

1971 Leslie v. Nitz, 212 Va. 480, 184 S.E.2d 755.

Plaintiff’s statement of facts and necessary inferences therefrom are binding on her.

1970 Harris v. Harris, 211 Va. 459, 177 S.E.2d 534.

Mother injured when car driven by her son left highway and struck bridge abutment. In action against her son, mother testified that proximate cause of accident was negligence of driver of another car which forced them off road. Her case can be no stronger nor rise any higher than her own positive, clear and unequivocal testimony permits.

1970 Yates v. Potts, 210 Va. 636, 172 S.E.2d 784.

Rule in Massie does not necessarily apply to statements of opinion or of incomplete facts. It applies where litigant testifies unequivocally to facts within his knowledge and upon which his case turns. Massie not applicable to estimate of speed.

1970 Crawford & Perdue v. Quarterman, 210 Va. 598, 172 S.E.2d 739.

Plaintiff’s case can be no stronger than his own testimony permits. In this case, plaintiff essentially absolved defendant of being cause of accident.

1968 National Union Fire Ins. v. Bruce, 208 Va. 595, 159 S.E.2d 815.

Defendant is not so bound by his own admissions as to be precluded from availing himself of defenses brought out in evidence of his adversary, although such evidence is at odds with his own.

1968 Saunders & Rittenhouse v. Bulluck, 208 Va. 551, 159 S.E.2d 820.

Massie v. Firmstone doctrine applies to statements of fact and not statements of opinion.

1967 Tyree v. Lariew, 208 Va. 382, 158 S.E.2d 140.

Plaintiff not limited to his own testimony but is entitled to present evidence that goes beyond his testimony.

1966 White v. John Doe, 207 Va. 276, 148 S.E.2d 797.

Plaintiff is bound by his own testimony and his case can rise no higher than his own evidence.

1964 Scott v. Foley, 205 Va. 382, 136 S.E.2d 849.

Person of average intelligence and in possession of his faculties is bound by testimony he clearly and unequivocally gives.

1964 Bond v. Joyner, 205 Va. 292, 136 S.E.2d 903.

Massie v. Firmstone rule not applicable since plaintiff did not testify on most crucial issue of case.

1963 Atwell v. Watson, 204 Va. 624, 133 S.E.2d 552.

Where litigant testifies unequivocally to facts within his knowledge and upon which his case turns, he is bound thereby and cannot rely on other evidence in conflict with his own testimony.

1962 VEPCO v. Mabin, 203 Va. 490, 125 S.E.2d 145.

Party who testifies to matter within his own knowledge is bound thereby. This testimony must be read as whole.

1960 Hailey v. Johnson, 201 Va. 775, 113 S.E.2d 664.

Litigant is bound by uncontradicted evidence of his opponent, when not inherently incredible and counter to no reasonable inference. This is especially so when opponent testifies as adverse witness.

1958 Hargrow v. Watson, 200 Va. 30, 104 S.E.2d 37.

Adverse witness was held to be bound by his testimony and was barred from taking stand on direct examination to explain his testimony.

1955 Edmonds v. Mecklenburg Elec. Coop., 197 Va. 540, 90 S.E.2d 188.

Where plaintiff’s testimony as whole shows no case, he is bound by his testimony; but not so where reasonable men may differ as to effect of his testimony.

1955 Vaughan v. Eatoon, 197 Va. 459, 89 S.E.2d 914.

Testimony of plaintiff as to speed and proximity of defendant’s oncoming vehicle were mere estimates and did not establish contributory negligence on her part as matter of law. To establish contributory negligence from plaintiff’s testimony, it must be determined from fair reading of plaintiff’s entire testimony.

1955 Von Roy v. Whitescarver, 197 Va. 384, 89 S.E.2d 346.

Party’s statements of facts and necessary inferences therefrom are binding upon him. No litigant can successfully ask court or jury to believe that he has not told truth.

1952 Whichard v. Nee, 194 Va. 83, 72 S.E.2d 365.

Plaintiff can make no stronger case than that shown by his own evidence.

1952 Clayton v. Taylor, 193 Va. 555, 69 S.E.2d 424.

For litigant to be barred from recovery because his testimony is irreconcilable or at variance with physical facts or other certain proof, it must have been unequivocal and upon matter within his knowledge and so conclusively in conflict with other proved facts as to have no room for difference of opinion between reasonable men. If reasonable minds could differ, question is one to be resolved by jury.

1948 Crew v. Nelson, 188 Va. 108, 49 S.E.2d 326.

If plaintiff’s testimony establishes unequivocally that he has no case, then plaintiff cannot recover. But whether such has been effect of plaintiff’s testimony must be determined from fair reading of all plaintiff’s testimony and not just portions of it.

1948 Burruss v. Suddith, 187 Va. 473, 47 S.E.2d 546.

Plaintiff is bound by his own testimony. This rule is intended to compel good faith on part of litigant not to penalize him for honest mistakes or infirmities of memory.

1948 Waller v. Waller, 187 Va. 25, 46 S.E.2d 42.

Conflict within testimony of party’s witness will not dictate that such testimony be rendered incredible. Litigant may ask court to accept as true those statements most favorable to him. This is not true where there is conflict between party’s statements and those of witness.

1944 Chappell v. Mite, 182 Va. 625, 29 S.E.2d 858.

When two or more witnesses offered by litigant vary in their testimony, party has right to ask court and jury to accept that which is most favorable. Rule is different when party’s testimony differs from that of witness of that party.

1942 Birtcherd’s Dairy v. Randall, 180 Va. 311, 23 S.E.2d 229.

Party is bound by his own testimony given at trial. This rule does not apply to witness offered by litigant. Litigant here was defendant corporation and witness was its driver.