Browning v. Hickman

• Decision Date: 10 June 2015
• Docket Number: No. 13–1116.,13–1116.
• Citation: 235 W.Va. 640,776 S.E.2d 142
• Parties: Aaron BROWNING, Plaintiff Below, Petitioner v. David HICKMAN, Defendant Below, Respondent.
• Court: West Virginia Supreme Court

235 W.Va. 640

776 S.E.2d 142

Aaron BROWNING, Plaintiff Below, Petitioner

v.David HICKMAN, Defendant Below, Respondent.

No. 13–1116.

Supreme Court of Appeals of West Virginia.

Submitted April 21, 2015.

Decided June 10, 2015.

John–Mark Atkinson, Esq., Atkinson & Polak, PLLC, Charleston, WV, Harry M. Hatfield, Esq., Hatfield & Hatfield, PLLC, Madison, WV, W. Douglas Witten, Esq., Avis, Witten & Wandling, L.C., Logan, WV, for Petitioner.

Benjamin M. Mishoe, Esq., Shaffer & Shaffer, PLLC, Madison, WV, for Respondent.

Opinion

LOUGHRY, Justice:

Aaron Browning, the plaintiff below and the petitioner herein, appeals from the September 16, 2013, order of the Circuit Court of Logan County denying his motion for a new trial following an adverse jury verdict in his civil action for damages arising from an automobile accident. He asserts that the circuit court made various evidentiary errors at trial. David Hickman, the defendant below and the respondent herein, contends that there was no error. After a careful review of the parties' briefs, the arguments of counsel, the pertinent authorities, and the appendix record, we affirm.

I. Factual and Procedural Background

Shortly before 6:15 a.m. on October 24, 2011, the parties in this litigation were involved in an automobile accident at an intersection in Logan, West Virginia. Mr. Hickman (hereinafter “the defendant”) was traveling straight through the intersection. Mr. Browning (hereinafter “the plaintiff”), who had been traveling in the opposite direction, was making a left turn across the defendant's lane of traffic. The front passenger side of the defendant's car struck the rear passenger side of the plaintiff's pickup truck, causing the plaintiff's truck to spin around. Each driver claimed to have had the right-of-way at the time of the collision. The plaintiff filed suit against the defendant alleging negligence and seeking recovery for his personal injuries and the loss of his truck.

The matter was tried before a jury on March 18 and 19, 2013. The plaintiff testified he had a green turn arrow light allowing him to make the left turn. He also contended at trial that the defendant was speeding,¹ had failed to maintain a proper lookout, and had failed to yield the right-of-way to the plaintiff's car which was already in the intersection. Although the plaintiff acknowledged that he saw the defendant's approaching vehicle, he explained that he nonetheless pulled across the defendant's lane of traffic because of the green arrow and because the defendant was far away from the intersection.

Conversely, the defendant testified he had a green light to proceed straight through the intersection. He explained that when he was about ten feet away from the point in the intersection where the collision would occur, the plaintiff pulled out in front of him. The defendant testified that he immediately applied his brakes and swerved his car to the left, but was unsuccessful in avoiding the accident. He estimated that he was driving forty miles per hour, which was under the speed limit.

Immediately after the collision, a female who identified herself as “Toni” called the Logan 911 Emergency Center and reported the accident. The caller told the 911 operator that “it was the red truck, [it] pulled out in front of the vehicle.” It is undisputed that the “red truck” was driven by the plaintiff, while the defendant drove a sedan referred to as “the vehicle.” After the audio recording of the 911 call was authenticated by an official from the 911 Center, and over the plaintiff's objection, the defendant was permitted to play the recording for the jury. As discussed in section III–A of this opinion, due to the admission of the 911 call, the plaintiff moved for a mistrial or, in the alternative, a mid-trial recess so he could endeavor to locate the 911 caller. The circuit court denied the plaintiff's motion.

City of Logan Police Officer Jacob Miller was dispatched to the accident. At trial, he testified about his investigation, the accident scene, and the responsibilities each driver had upon approaching the intersection. Notably, the officer did not know which driver had the green light or arrow at the time of the collision.

In the Uniform Crash Investigation Report (hereinafter “accident report”), Officer Miller concluded that the defendant had failed to yield the right-of-way. However, during his pre-trial deposition, the officer admitted that he did not know which driver had the green light and it was just as likely that the plaintiff had failed to yield. Because of this change, the circuit court granted a motion in limine, preventing the plaintiff from telling the jury of the officer's conclusion in the accident report.

At the end of the trial, the jury returned a verdict in favor of the defendant, finding that he was not negligent and had not proximately caused the accident. Thereafter, the plaintiff filed a motion for a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure. The circuit court denied this motion by order entered on September 16, 2013.

The plaintiff asserts two assignments of error on appeal. First, he contends the circuit court erroneously denied his motion for a mistrial or recess upon the admission of the 911 call. Second, he asserts the court erroneously denied his motion for a new trial both because of the admission of the 911 call and the exclusion of Officer Miller's opinion on fault in the accident report.

II. Standard of Review

All of the plaintiff's contentions on appeal are subject to an abuse of discretion standard of review. With regard to motions for mistrial, we have held that

“[w]hether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court's discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused.” Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968).

Syl. Pt. 9, Bd. of Educ. v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990). Regarding mid-trial recesses, this Court articulated that “[a] trial court has considerable discretion as to matters involving the length of a recess or temporary adjournment of a trial.” Syl. Pt. 8, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982). Similarly, when a party appeals an order denying a motion for new trial,

“the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt. 4, in part, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

Syl. Pt. 2, Estep v. Mike Ferrell Ford Lincoln–Mercury, Inc., 223 W.Va. 209, 672 S.E.2d 345 (2008).

The motions for mistrial and new trial both concerned the circuit court's rulings on the admissibility of evidence. As we explained in syllabus point four of State v. Rodoussakis, “[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” 204 W.Va. 58, 511 S.E.2d 469 (1998). Likewise, “[t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong.” Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

With this in mind, we proceed to consider the parties' arguments.

III. Discussion

A. The 911 Call

Additional background information is necessary to understand the arguments surrounding the 911 call. During the call, the caller only identified herself as “Toni” and stated that she was “not from around here.” During pre-trial discovery, the Logan 911 Center provided the parties with a recording of the call and various data summaries, but none of this information included the caller's last name, telephone number, or contact information.

Before trial, neither party had located “Toni.”

Both parties filed motions in limine regarding the admissibility of the 911 call. The defendant argued that the call was relevant and satisfied various exceptions to the rule against hearsay.² See W.Va. R. Evid. 401, 801 –803. The plaintiff asserted the 911 call was hearsay and not relevant. See W.Va. R. Evid. 401 –403, 801. He noted that the 911 caller had merely said that the “truck, [it] pulled out in front of the vehicle [,]” without stating who had the green light or the right-of-way. In his written motion in limine, the plaintiff admitted that he had “cut in front of the defendant [but] the issue is whether the plaintiff had the ‘green arrow’ on the traffic control light and was thus entitled to the right of way.” (emphasis added.) He then restated this assertion, arguing that “the issue is not whether or not plaintiff Browning pulled in front of defendant Hickman—he did, but rather whether or not plaintiff Browning, by virtue of the green arrow light, had the lawful right of way.” The plaintiff also argued that there was no way to determine whether the caller saw the collision as it occurred. See W.Va. R. Evid. 601 –602.

During a pre-trial conference held via telephone on March 11, 2013,³ in addition to both counsel arguing their respective motions in limine, the defense counsel advised the court that he had just obtained the number of the cellular telephone used to place the 911 call.⁴ The defendant's counsel indicated that his investigator was attempting to find the caller, and he requested a witness subpoena for trial in the event the caller was located. The plaintiff objected to allowing the caller to testify at trial without first having the opportunity to depose her. The circuit court established a deadline of “Thursday at noon” to locate the caller and set a deposition;...