Jones v. Garnes

• Decision Date: 20 July 1990
• Docket Number: No. 19365,19365
• Citation: 183 W.Va. 304,395 S.E.2d 548
• Court: West Virginia Supreme Court
• Parties: Stella F. JONES, Appellant, v. Heber H. GARNES and Brenda K. Garnes, Appellees.

Page 548

395 S.E.2d 548

183 W.Va. 304

Stella F. JONES, Appellant, v. Heber H. GARNES and Brenda K. Garnes, Appellees.

No. 19365.

Supreme Court of Appeals of West Virginia.

July 20, 1990.

Syllabus by the Court

1. " 'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.' W.Va.R.Evid. 702." Syl. Pt. 3, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).

2. "Whether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court and its ruling will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Syl. Pt. 5, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

3. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983)." Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

Jeffrey T. Jones, Hunt and Wilson, Charleston, for Stella F. Jones.

David Mohler, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for Heber H. Garnes and Brenda K. Garnes.

PER CURIAM:

This case is before this Court pursuant to an appeal by Stella F. Jones, following a jury verdict in Kanawha County Circuit Court. The appellant was found by the jury to have been 60% negligent in an automobile accident she was involved in with the appellee, Brenda K. Garnes. The appellee was found to be 40% negligent. The appellant asserts on appeal that the trial court erred when it sustained objections made by appellee's counsel to the investigating officer rendering an opinion as to who failed to yield the right of way in the accident. Error is also alleged to have occurred when the court excised portions of the officer's report of the accident. Lastly, the appellant asserts that error was committed when the court erroneously allowed the appellee's counsel to refer to an exhibit in his closing argument, when the court had previously held that such chart was not admissible. Based on the court's error in not permitting the opinion testimony of the investigating officer, we reverse this case and remand it for a new trial.

The accident at issue occurred on August 30, 1986. The appellant (and plaintiff below) was proceeding north on Route 21; the appellee (defendant below) had exited Interstate 77 and was pulling out onto Route 21 to head south when the vehicles collided. Kanawha County Sheriff's Deputy Michael Stiltner was called to the scene to investigate the accident. A civil action arising as a result of the accident was instituted on November 6, 1987. ¹ The deputy was unavailable to testify at trial, but he testified pursuant to an evidentiary deposition. Objections were made by appellee's counsel during this deposition regarding the deputy giving an opinion as to which party failed to yield the right of way. The specific objection to this opinion testimony was grounded on the premise that it went to the "ultimate issue."

The trial took place on November 22 and 23, 1988, before the Honorable Herman G. Canady, Jr. At that time the court held an in camera hearing to rule on the objections made at the time of the deposition and to determine what portions of the deposition testimony should be excluded. The court informed the parties' counsel at this in camera hearing that there were only three areas on which he would allow the officer to testify: The point of impact, skidmarks, and speed of a vehicle. The court sustained the appellee's objection as to opinion testimony on the issue of who failed to yield the right of way, agreeing with appellee's counsel that such testimony went to the ultimate issue.

Upon a review of the pertinent rules of evidence, we disagree with the court's ruling. West Virginia Rule of Evidence 704 provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact." This rule is applicable both to lay and expert witnesses. Based on the clear import of this rule, a motion made solely on the basis that such testimony involves the ultimate issue is meritless. Instead, the point to focus on is whether an opinion is "otherwise admissible."

Since the testimony at issue was given by a witness who was determined by the court to be an expert, a review of the rules of evidence relating to expert witnesses is necessary in order to determine if the deputy's testimony comports with what the rules permit. In order to be admissible, an expert's testimony needs to have a factual basis, which may be derived from personal observation, as in the case before us. W.Va.R.Evid. 703. ² Furthermore, W.Va.R.Evid. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." See Syl. Pt. 3, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987). Actually, "[t]he key test is whether the witness has specialized knowledge that will assist the trier of fact." Ventura, 178 W.Va. at 86, 357 S.E.2d at 768.

Turning to the pertinent facts in this case, we find that the deputy did possess specialized knowledge which would have assisted the trier of fact. He had been employed as a deputy sheriff in Kanawha County since 1980 and had completed a three-month training course at the West Virginia State Police Academy in 1982. He testified that accident investigation was one of his duties and admitted that during his time on the force he had investigated several hundred to one thousand accidents. With regard to the accident between the petitioner and respondent, the deputy testified that upon arrival at the scene of the accident he secured the area, took statements from witnesses and measurements of the accident...