Gable v. Kroger Co., No. 19996

CourtWest Virginia Supreme Court
Writing for the CourtNEELY
Citation410 S.E.2d 701,186 W.Va. 62
PartiesRonald A. GABLE, Administrator of the Estate of Carol A. Gable, and Ronald A. Gable, Individually, Appellant, Plaintiff Below, v. The KROGER COMPANY, a corporation, Appellee, Defendant Below.
Decision Date16 October 1991
Docket NumberNo. 19996

Page 701

410 S.E.2d 701
186 W.Va. 62
Ronald A. GABLE, Administrator of the Estate of Carol A.
Gable, and Ronald A. Gable, Individually,
Appellant, Plaintiff Below,
v.
The KROGER COMPANY, a corporation, Appellee, Defendant Below.
No. 19996.
Supreme Court of Appeals of
West Virginia.
Submitted Sept. 11, 1991.
Decided Oct. 16, 1991.

Page 702

[186 W.Va. 63] Syllabus by the Court

1. Under Rule 611 of the West Virginia Rules of Evidence [1985], a party is entitled to call an adverse party and interrogate that party by leading questions.

2. Under Rule 611(a) of the West Virginia Rules of Evidence [1985], the trial judge clearly has discretion to "exercise reasonable control over the mode and order of interrogating witnesses in presenting evidence...."; and in doing so, he must balance the fairness to both parties.

3. To be admissible at all, similar occurrence evidence must relate to accidents or injuries or defects existing at substantially the same place and under substantially the same conditions. Evidence of injuries occurring under different circumstances or conditions is not admissible.

4. Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant.

5. "Ordinarily, a juror's claim that he was confused over the law or evidence and therefore participated in the verdict on an incorrect premise is a matter that inheres in or is intrinsic to the deliberative process and cannot be used to impeach the verdict." Syllabus Point 3, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981).

Donald J. Tennant, Jr., Wheeling, for appellant.

Scott S. Blass, Bachmann, Hess, Bachmann & Garden, Wheeling, for appellee.

NEELY, Justice:

Ronald G. Gable, as administrator of his late wife's estate and in his individual capacity, appeals from several trial court rulings in a slip and fall case. On 19 September 1987, Carol Gable slipped and fell while shopping at a Kroger store in Benwood, West Virginia, causing her to suffer a herniated disc. Mrs. Gable sued Kroger for its alleged negligence in the accident. The jury found Mrs. Gable 65% negligent and the trial judge, therefore, entered judgment in favor of Kroger. Mr. Gable, as his wife's successor, now appeals. We affirm.

I.

Mr. Gable planned to call four Kroger employees as adverse witnesses during his case-in-chief. The trial judge, however, granted a motion in limine by Kroger that prevented Mr. Gable from doing so, but the judge required Kroger to stipulate that it would call the employees in question during its case-in-reply.

The controlling issue involves the interplay among the various rules that have governed trial procedure for calling adverse witnesses. Both the West Virginia Rules of Civil Procedure and the West Virginia Rules of Evidence are modeled after their federal counterparts; therefore, the history of the federal rules provides guidance in interpreting our rules. Rule 43, Fed.R.Civ.Pro. was adopted as a provisional evidentiary framework in 1937 supplanting the previous common law system. 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice p 43.01[1.1] (2nd ed.1991). Rule 43(b) provided, in part: "A party may call an adverse party ... and interrogate him by leading questions...." Thereafter, the ability to call an adverse party and interrogate him with leading questions remained a part of Rule 43(b) until it was abrogated in 1975, following the adoption of the Federal Rules of Evidence. 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice p 43.01 (2nd ed.1991).

Rule 611(c) of the Federal Rules of Evidence replaced Rule 43(b) of the Federal Rules of Civil Procedure as the law controlling the calling of adverse witnesses. The United States Supreme Court's 1971 draft of Rule 611(c) provided:

Leading Questions.--Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. In civil cases, a party is entitled to call an adverse party or witness identified with

Page 703

[186 W.Va. 64] him and interrogate by leading questions. (Emphasis added.)

The version adopted by Congress, however, was substantially different. It provided:

Leading Questions.--Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party is entitled to call an adverse party or a witness identified with an adverse party, interrogation may be by leading questions. (Emphasis added.)

Although the version adopted by Congress omits the explicit language "a party is entitled to call an adverse party," the House report shows that Congress did not intend to change a party's ability to call an adverse witness and examine him with leading questions. The report states:

The Committee amended this Rule to permit leading questions to be used with respect to any hostile...

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34 practice notes
  • State v. Phillips, No. 22633
    • United States
    • Supreme Court of West Virginia
    • July 21, 1995
    ...to the sound discretion of the trial court and its judgment will not be overturned absent an abuse of discretion. Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991); State v. Dillon, supra. Additionally, "[t]he balancing necessary under Rule 403 must affirmatively appear on the record......
  • Jordan v. Jenkins, No. 19-0890
    • United States
    • Supreme Court of West Virginia
    • June 15, 2021
    ...whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant." Syl. Pt. 4, Gable v. Kroger Co. , 186 W. Va. 62, 410 S.E.2d 701 (1991). The evidence about which Safeco complains – including Safeco's post-conversion conduct relative to the settlement of......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse.”); see also Gable v. Kroger Co., 186 W.Va. 62, 66, 410 S.E.2d 701, 705 (1991) ( “Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant e......
  • State v. Taylor, No. 31405.
    • United States
    • Supreme Court of West Virginia
    • February 3, 2004
    ...substantially outweighed by its prejudicial effect is reviewed only for abuse of discretion, e.g., syl. pt. 10, Derr; Gable v. Kroger Co., 186 W.Va. 62, 66, 410 S.E.2d 701, 705 (1991) ("Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant ......
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34 cases
  • State v. Phillips, No. 22633
    • United States
    • Supreme Court of West Virginia
    • July 21, 1995
    ...to the sound discretion of the trial court and its judgment will not be overturned absent an abuse of discretion. Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991); State v. Dillon, supra. Additionally, "[t]he balancing necessary under Rule 403 must affirmatively appear on the record......
  • Jordan v. Jenkins, No. 19-0890
    • United States
    • Supreme Court of West Virginia
    • June 15, 2021
    ...whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant." Syl. Pt. 4, Gable v. Kroger Co. , 186 W. Va. 62, 410 S.E.2d 701 (1991). The evidence about which Safeco complains – including Safeco's post-conversion conduct relative to the settlement of......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse.”); see also Gable v. Kroger Co., 186 W.Va. 62, 66, 410 S.E.2d 701, 705 (1991) ( “Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant e......
  • State v. Taylor, No. 31405.
    • United States
    • Supreme Court of West Virginia
    • February 3, 2004
    ...substantially outweighed by its prejudicial effect is reviewed only for abuse of discretion, e.g., syl. pt. 10, Derr; Gable v. Kroger Co., 186 W.Va. 62, 66, 410 S.E.2d 701, 705 (1991) ("Rules 402 and 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant ......
  • Request a trial to view additional results

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