Daniel B. by Richard B. v. Ackerman

• Decision Date: 16 July 1993
• Docket Number: No. 21489,21489
• Citation: 190 W.Va. 1,435 S.E.2d 1
• Court: West Virginia Supreme Court
• Parties: DANIEL B., An Infant, Who Sues By His Next Friend, RICHARD B., and Richard B. and Jenny B., His Parents, Individually, Plaintiffs Below, Appellees, v. Terry C. ACKERMAN, Defendant Below, Appellant.

Page 1

435 S.E.2d 1

190 W.Va. 1

DANIEL B., An Infant, Who Sues By His Next Friend, RICHARD B., and Richard B. and Jenny B., His Parents Individually, Plaintiffs Below, Appellees, v. Terry C. ACKERMAN, Defendant Below, Appellant.

No. 21489.

Supreme Court of Appeals of West Virginia.

Submitted June 1, 1993.

Decided July 16, 1993.

Syllabus by the Court

1. " ' "Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court." Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ].' Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956)." Syl. Pt. 5, State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988).

2. "The collateral source rule also ordinarily prohibits inquiry as to whether the plaintiff has received payments from collateral sources. This is based upon the theory that the jury may well reduce the damages based on the amounts that the plaintiff has been shown to have received from collateral sources." Syl. Pt. 8, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).

3. "Records made routinely in the regular course of business, at the time of the transaction or occurrence, or within a reasonable time thereafter, are generally trustworthy and reliable, and therefore ought to be admissible when properly verified." Syl. Pt. 4, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982).

John B. Garden, Rhonda L. Wade, and Jeffrey A. Grove, Bachmann, Hess, Bachmann & Garden, Wheeling, for appellant.

Jacob M. Robinson, Wheeling, for appellees.

PER CURIAM:

This is an appeal by Terry C. Ackerman from a June 5, 1992, order of the Circuit Court of Ohio County which set aside a defense verdict in favor of the Appellant and granted the Appellees a new trial. The Appellant contends that the lower court's decision to grant a new trial was in error. We agree, and accordingly reverse the decision of the circuit court and reinstate the original jury verdict.

I.

This action was initiated by the Appellees, Daniel B., an infant, suing by his next friend, Richard B., and Richard B. and Jenny B., individually, subsequent to an accident which occurred on November 4, 1984. ¹ Daniel B., then nine years of age, was injured when he was struck by the side of the Appellant's vehicle on Eoff Street in Wheeling, West Virginia. The Appellees' civil action alleged that the Appellant had negligently operated her motor vehicle and sought recovery for Daniel's personal injuries and medical expenses. The Appellant denied negligence.

On March 30, 1990, subsequent to a four-day trial, the jury returned a verdict in favor of the Appellant, finding that negligence had not been proven by preponderance of the evidence. The Appellees filed a motion for a new trial, and the verdict was set aside on March 11, 1991, upon the following three grounds: (1) prejudicial remarks made by the Appellant during a jury viewing of the accident scene; (2) improper references to insurance made by the Appellant during direct examination; and (3) improper admission of Daniel B.'s hospital record containing prejudicial hearsay which was unsupported by a witness. The Appellant contends that the alleged errors did not deprive the Appellees of a fair trial and that they did not form a legitimate basis for the granting of a new trial.

II.

During a jury view of the accident scene, the jurors were permitted to stand on a porch where one of the Appellees' witnesses claimed to have observed the accident. The Appellant allegedly commented to her counsel's paralegal that it was impossible to see the accident scene from that vantage point because trees and a van would have blocked the witnesses' vision. Subsequent to the jury view, counsel for the Appellees advised the court in chambers as follows:

While we were at the view, I overheard the defendant, Ms. Ackerman, comment to the paralegal, Brenda Gittings, I believe her name is, that works for Mr. Garden that it was impossible to see the porch where Dottie Jaeger was positioned at the time of the collision or to see the boy from the porch from Lane 22 because the trees and the van blocked vision. It was within hearing of the jurors. I can't say that any of the jurors heard it.

At this point in time I would, simply, ask that Ms. Ackerman be instructed on proper procedure, that she not make comments in front of jurors, and I will, likewise, advise the plaintiffs of that. I don't know how else to treat that.

Counsel for the Appellees neither sought a mistrial nor made any formal objection, and the issue was not raised again until the Appellees filed their post-trial motions.

Dottie Jaeger, the witness for the Appellees who allegedly observed the collision from the porch, testified at trial regarding her recollection of the accident and the position from which she allegedly saw the accident. Mrs. Jaeger testified that she had known the Appellees for approximately five years and had visited their house on several occasions. She also explained that she had not told the police that she had witnessed the accident when they first arrived on the scene. Furthermore, she testified that she had first met with the Appellees' counsel and discussed her recollection of the accident on the Friday prior to trial.

We have consistently maintained that failure to make a timely objection seriously impairs the right to subsequently raise the objection. In syllabus point 5 of State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988), we explained:

" 'Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.' Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ]." Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956).

Despite the failure of the Appellees' counsel to object or seek a mistrial, the lower court determined that the Appellees were entitled to a new trial because of "the remarks made by Defendant [Appellant] at the view of the scene of the accident. These were highly prejudicial." However, the Appellees' counsel did not formally object to the comment during the jury view, and there was no evidence to indicate that any juror had actually heard the remark. Furthermore, the lower court specifically instructed the jury to consider only the evidence introduced at trial. Absent evidence that any juror actually heard the remark or was prejudiced by it in some fashion, we fail to discern any harm in the remark and conclude that the lower court erred by relying upon this remark as a basis for its decision to award a new trial.

III.

The lower court also based its award of a new trial upon the Appellant's alleged improper reference to insurance during her direct examination. The Appellant, a registered nurse, was questioned during her direct examination regarding admission procedures in an emergency room. The testimony proceeded as follows:

Q: Are you familiar and were you familiar in 1984 with what the protocol was about the taking of a history of a patient who presented themselves to the Emergency Room?

A: Well, I can only tell you from my own, personal experience as far as--my son broke his arm when he was two years old.

They take them in, and if they're immediately in danger, then they will take care of the child first, and then later on you have to go through insurance people and give them all of the insurance and everything. You also have to give them a brief summary of what happened to the child.

This reference by the Appellant to insurance was the only mention of insurance in the presence of the jury at any time during the trial.

Subsequent to that comment and the request of Appellees' counsel to approach the bench, the lower court ordered a conference in chambers. Counsel for the Appellees made the following statement:

The introduction into this case of insurance information, health insurance, or whatever type of insurance she was alluding to, I think prejudices the plaintiffs' case to a substantial degree. I would move for some type of an appropriate remedial action or, in the alternative, a mistrial with the cost to be borne by the defense.

The lower court denied the motion for a mistrial, reasoning that the mention of insurance was inadvertent. At the close of the evidence, the Appellees renewed their motion for a mistrial, and that motion was again denied.

We have previously explained that not every mention of insurance during trial constitutes reversible error. Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981). In Ratlief, a plaintiff indicated during direct examination that he had medical insurance. On cross-examination, it was disclosed that eighty percent of his medical bills had been paid by insurance. After addressing the mentioning of insurance during trial, we concluded that any error in the admission of testimony regarding insurance was harmless since the jury found in favor of the defendant on the issue of liability. Id. at 787, 280 S.E.2d at 590. In syllabus point 8 of Ratlief, we explained that "[t]he collateral source rule also ordinarily prohibits inquiry as to whether the plaintiff has received payments from collateral sources. This is based upon the theory that the jury may well reduce the damages based on the amounts that the plaintiff has been shown to have received from collateral sources." In other words, the rule has its foundations in the concern that a jury may inaccurately or unfairly determine the amount of damages to which a plaintiff is entitled. As we recognized in Ratlief, however, when the case is resolved on the issue of liability, reference to insurance is not dispositive of the issue of harm. "The reason the error is harmless in this...