Fluharty v. Wimbush

• Decision Date: 30 March 1983
• Docket Number: No. 15539,15539
• Citation: 172 W.Va. 134,304 S.E.2d 39
• Parties: Charles E. FLUHARTY, et al. v. John A. WIMBUSH, et al.
• Court: West Virginia Supreme Court

Page 39

304 S.E.2d 39

172 W.Va. 134

Charles E. FLUHARTY, et al. v. John A. WIMBUSH, et al.

No. 15539.

Supreme Court of Appeals of West Virginia.

March 30, 1983.

Rehearing Denied July 5, 1983.

Syllabus by the Court

1. "It is an abuse of discretion and reversible error for a trial judge, in the exercise of his discretionary control over the scope of inquiry during voir dire, to so limit the questioning of potential jurors as to infringe upon a litigant's ability to determine whether the jurors are free from interest, bias or prejudice, or to effectively hinder the exercise of peremptory challenges." Syl. pt. 5, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).

2. "It is not improper for a trial judge to express in the presence and hearing of the jury the mere legal basis of his ruling upon an objection to the admissibility of particular evidence." Syl. pt. 3, Ellison v. Wood & Bush Co., 153 W.Va. 506, 507, 170 S.E.2d 321 (1969).

3. "A new trial on the basis of newly-discovered evidence will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. However, when the newly-discovered impeachment evidence comes within the following rules, a new trial will be granted: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) The facts must appear in his affidavit that the party was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) The evidence must be new and material, and not merely cumulative. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits." Syl. pt. 2, State v. Stewart, 161 W.Va. 127, 239 S.E.2d 777 (1977).

Monty L. Preiser and E. Dixon Ericson, Preiser & Wilson, Charleston, for appellants.

W.E. Mohler, Charleston, for appellees.

PER CURIAM:

Charles E. and Juanita M. Fluharty, husband and wife, and their daughter Charlene sued defendant appellees for negligently operating a tractor-trailer truck causing a collision on U.S. Route 35 near Winfield, Putnam County, West Virginia. Both defendants denied the allegations and counterclaimed, contending that the negligence of Charlene Fluharty, who was driving the family car when the collision occurred, was the sole proximate cause of the accident.

At the conclusion of the evidence, the jury returned a verdict finding defendant Wimbush, the driver of the tractor-trailer, only 15% negligent while Charlene Fluharty was 85% at fault in proximately causing the collision. Verdicts of $40,000 and $10,000, respectively, were returned in favor of the defendant trucking company and its truck driver against Charlene and Charles Fluharty. The verdicts were reduced to $34,000 and $8,500 by the 15% negligence attributable to the defendants. The jury also found for Juanita and Charles Fluharty in the sum of $5,000 and $1,000, respectively. The trial court entered judgment on the jury verdicts and thereafter denied appellants' motion for a new trial. This appeal followed.

We shall address appellants' eight assignments of error to the extent that they warrant discussion. They first contend that the trial court refused to permit adequate, meaningful voir dire, and thereby denied them their right to select a fair and impartial jury. They point principally to the fact that the trial court itself conducted the voir dire examination without participation by counsel other than through the submission of written voir dire questions to the court; that the jury panel was examined as a group rather than individually; and that the trial court informed the jury panel that the voir dire questions were posed by appellants. Appellants urge us to formulate guidelines on the scope of voir dire examination in civil cases.

We decline the invitation to formulate more detailed standards regulating voir dire and find that the trial judge did not unduly limit voir dire examination or misbehave during the voir dire. A trial court judge has broad discretion to conduct a voir dire, W.Va.Code, 56-6-12, utilizing any procedure that will better determine the impartiality of jurors and permit intelligent and meaningful peremptory challenges. See, Syl. pt. 2, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976). A trial judge's discretion about the scope of voir dire, however, is not boundless. Recently, in syllabus point 5 of State v. Peacher, 167 W .Va. 540, 280 S.E.2d 559 (1981), we stated:

"It is an abuse of discretion and reversible error for a trial judge, in the exercise of his discretionary control over the scope of inquiry during voir dire, to so limit the questioning of potential jurors as to infringe upon litigant's ability to determine whether the jurors are free from interest, bias or prejudice, or to effectively hinder the exercise of peremptory challenges."

A review of this transcript completely belies appellants' contention that they were prejudiced by the trial judge's conduct of the voir dire. He examined the jury panel to determine if any juror had an interest in the case, was biased or prejudiced, or had formed an opinion about the case, and did not refuse any voir dire question that was reasonably calculated to determine whether the jurors were impartial. There was no refusal to permit a more probing inquiry of a panel member who had expressed possible bias or prejudice. See, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981); State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

Those questions he refused were either improper or were not material to the case. While the trial judge did advise the panel that the voir dire questions were asked at appellants' counsel's request, the record clearly does not reveal that this disclosure was...