Barker v. Benefit Trust Life Ins. Co., 16093

CourtSupreme Court of West Virginia
Citation324 S.E.2d 148,174 W.Va. 187
Docket NumberNo. 16093,16093
PartiesFred B. BARKER v. BENEFIT TRUST LIFE INS. CO., etc.
Decision Date19 December 1984

Syllabus by the Court

Where a trial by jury has been secured by a party to litigation under W.Va.R.Civ.P. 38 or 39(b), a party to such litigation has a right to an impartial and unbiased jury; and, in order to insure that right, the party is entitled, in the absence of a waiver upon the record, to meaningful voir dire examination and peremptory challenges of the prospective jurors. W.Va.R.Civ.P. 47; W.Va.Code, 56-6-12 [1931].

Joseph R. Martin, Cooper & Martin, Sutton, for appellant.

W.E. Mohler, Charlston, for appellee.

McHUGH, Chief Justice:

This action is before this Court upon the appeal of Benefit Trust Life Insurance Company, the appellant and defendant below, from a final order of the Circuit Court of Braxton County, West Virginia, in which that court awarded Fred B. Barker, the appellee and plaintiff below, compensatory damages in the amount of $8,500 upon a claim of libel; reimbursement for hospital and physician expenses under a medical insurance policy; and, $12,500 in punitive damages for the failure of the appellant to reimburse the appellee under a medical insurance policy for hospital and physician expenses emanating from the hospitalization of the appellee.

The appellant assigns a number of errors on the part of the circuit court including its rulings on the admissibility of evidence, its failure to grant the appellant's various motions and its giving of certain instructions to the jury. Only one of them has merit. The appellant asserts that the circuit court erred, when, after setting aside a default judgment and granting the appellant's request for trial by jury, the appellant was not afforded voir dire examination of the prospective jurors. Nor was it permitted to exercise its peremptory challenges of those jurors. 1

It should be noted at the outset that neither party demanded in writing a trial by jury under the provisions of W.Va.R.Civ.P. 38(b), 2 therefore, under W.Va.R.Civ.P. 38(d), 3 both parties had waived their rights to a trial by jury when the proceedings commenced on September 7, 1982. The issue presented to this Court is whether the appellant was entitled to voir dire and peremptory challenges of the prospective jurors once the circuit court set aside the default judgment and granted the appellant's request for trial by jury under W.Va.R.Civ.P. 39(b). 4 We answer this question in the affirmative.

In March, 1981, the appellee filed a complaint against the appellant in the Circuit Court of Braxton County, West Virginia, to recover the expenses incurred for hospital treatments and for alleged libelous statements published against the appellee in a letter in which the appellant refused to pay medical benefits under an insurance policy. Neither party demanded a trial by jury in the pleadings.

Trial was scheduled for September 7, 1982. When court convened at 9:00 a.m. on September 7, 1982, neither a representative of the appellant nor the appellant's counsel were present. The proceedings were recessed while the appellant's counsel was telephoned to ascertain his whereabouts. Because the trial judge believed that no representative of the appellant was going to appear, the circuit court granted the appellee's motions for a default judgment and the impanelling of a jury for inquiry into the issue of damages. The appellee waived voir dire and the court impanelled the first 12 jurors that were called. The circuit court thereafter informed the jury that inasmuch as "the Court has awarded judgment of liability in favor of the plaintiff in this case * * * your inquiry will be limited to the issue of the amount of damages." The hearing on the issue of damages was continued until the following morning and the remainder of the jury panel was dismissed until the next term of the circuit court.

The record indicates that the proceedings again convened at 9:37 a.m. on that same morning with the appellant's counsel present. The appellant's counsel admitted fault for his late arrival stating that he was under the impression that the proceedings were not scheduled to begin until 9:30 a.m. The appellant moved the court to set aside the default judgment and further requested a trial by jury. The circuit court eventually set aside the default judgment, however, the circuit court, over the appellant's objections, ordered that the trial on the merits proceed the following morning with the jury that had previously been selected to decide the issue of damages. The proceedings reconvened the following morning at which time the court informed the jury that it had set aside the default judgment and that the jury would decide the issues of liability and damages.

It is fundamental that once a party secures a trial by jury there is a further requirement that the jury be "impartial and unbiased." This Court stated in Carpenter v. Hyman, 67 W.Va. 4, 6, 66 S.E. 1078, 1079 (1910):

It is the right of every litigant in cases tried before a jury to have an impartial and unbiased panel. To this end, he has the right to ascertain the fitness of the jurors called, by an examination within the scope of that provided by our statute on this subject.

As we further noted in Thornton v. CAMC, W.Va., 305 S.E.2d 316, 319 (1983), "[a] fair and impartial trial ... requires a fair and impartial jury...." See State v. Peacher, W.Va., 280 S.E.2d 559, 569 (1981).

In Darbin v. Nourse, 664 F.2d 1109, 1112-13 (9th Cir.1981), the United States Court of Appeals for the Ninth Circuit stated that "[t]he voir dire examination plays a critical role in securing the right to an impartial jury in civil, as well as criminal, trials." See also Fietzer v. Ford Motor Co., 622 F.2d 281, 284 (7th Cir.1980). See generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 2482 (Supp.1983).

We held in syllabus point 1 of Thornton v. CAMC, supra, quoting West Virginia Human Rights Commission v. Tenpin Lounge, Inc., 158 W.Va. 349, 355, 211 S.E.2d 349, 353 (1975):

Voir dire examination is designed to allow litigants to be informed of all relevant and material matters that might bear on possible disqualification of a juror and is essential to a fair and intelligent exercise of the right to challenge either for cause or peremptorily. Such examination must be meaningful so that the parties may be enabled to select a jury competent to judge and determine the facts in issue without bias, prejudice or partiality.

See also State v. Ashcraft, W.Va., 309 S.E.2d 600, 608 (1983); State v. Williams, W.Va., 305 S.E.2d 251, 263 (1983); Fluharty v. Wimbush, W.Va., 304 S.E.2d 39, 41 (1983); State v. Pendry, 159 W.Va. 738, 745-46, 227 S.E.2d 210, 216 (1976), overruled, in part, on other grounds, Jones v. Warden, West Virginia Penitentiary, 161 W.Va. 168, 241 S.E.2d 914, cert. denied 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978); State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 (1927).

Similarly, a litigant's right to peremptory challenges of prospective jurors is considered necessary to secure an impartial and unbiased jury. See generally 9 C. Wright & A. Miller, supra at § 2483; 50 C.J.S. Juries § 280(b) (Cum.Supp.1984); 47 Am.Jur.2d Jury § 235 (Cum.Supp.1984). This Court has stated that "[t]he right to peremptory challenges is conferred by statute and undoubtedly it is reversible error to deny that right to a litigant entitled thereto." Tawney v. Kirkhart, 130 W.Va. 550, 561, 44 S.E.2d 634, 641 (1947); see State v. Pearis, 35 W.Va. 320, 13 S.E. 1006 (1891); see also Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759, 772 (1965); Carr v. Watts, 597 F.2d 830, 833 (2d Cir.1979).

Voir dire examination of prospective jurors by parties to civil litigation is procedurally controlled by Rule 47 of the West Virginia Rules of Civil Procedure. Subsection a of that rule provides as follows:

Examination of jurors.--The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. 5

Furthermore, W.Va.Code, 56-6-12 [1931], provides:

Either party in any action or suit may, and the court shall on motion of such party, examine on oath any person who is called as a juror therein, to know whether he is a qualified juror, or is related to either party, or has any interest in the cause, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection; and if it shall appear to the court that such person is not a qualified juror or does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause. And in every case, unless it be otherwise specially provided by law, the plaintiff and defendant may each challenge four jurors peremptorily.

The scope of voir dire is generally within the discretion of the trial court and will not be disturbed upon review unless there is an abuse of that discretion. Thornton v. CAMC, supra at 319; syl. pt. 1, Fluharty v. Wimbush, supra; State v. Harshbarger, W.Va., 294 S.E.2d 254, 257 (1982); syl. pt. 5, State v....

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