McCroskey v. Proctor

• Decision Date: 10 July 1985
• Docket Number: No. 16046,16046
• Citation: McCroskey v. Proctor, 332 S.E.2d 646, 175 W.Va. 345 (W. Va. 1985)
• Court: West Virginia Supreme Court
• Parties: Jeffrey McCROSKEY v. Roger Melvin PROCTOR.

Page 646

332 S.E.2d 646

175 W.Va. 345

Jeffrey McCROSKEY v.Roger Melvin PROCTOR.

No. 16046.

Supreme Court of Appeals of West Virginia.

July 10, 1985.

Syllabus by the Court

1." 'Jurors may be questioned on their voir dire not only for the purpose of showing cause for a challenge, but also, within reasonable limits, to elicit such facts as enable the parties to exercise intelligently their right of peremptory challenge.The nature and extent of the examination, however, should be left largely to the discretion of the trial court.'State v. Stonestreet, Point 1 Syllabus, 112 W.Va. 668[166 S.E. 378(1932) ]."Syl. pt. 4, Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186(1961).

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." 'Expert opinion evidence concerning a matter as to which the jury are as competent to form an accurate opinion as the witness, is inadmissible.'Syllabus Point 7, Lawrence Adm'r v. Hyde, 77 W.Va. 639, 88 S.E. 45(1916)."Syl. pt. 2, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376(1981).

Benjamin N. Snyder, Clendenin, Scott S. Segal, Wood, Segal, Davis & Johnson, Charleston, for appellant.

Skeen & Skeen, John D. Hoffman and Larry L. Skeen, Ripley, for appellee.

PER CURIAM:

This is an appeal from a final order entered on June 15, 1983, in the Circuit Court of Roane County, upon a jury verdict finding the appellant(plaintiff below) and the appellee(defendant below) to be equally at fault in causing a collision between their respective motor vehicles.

The appellant assigns as error: (1) the refusal of the trial judge to ask certain questions during the voir dire of the jury venire, pertaining to the influence of advertising by insurance companies; and (2) the trial judge's rulings, sustaining objections to questions asked of the investigating officer, Trooper Frank Slone.

I

The appellant contends that the trial court impermissibly restricted the scope of jury voir dire by refusing to ask the following questions:

1.Is there anyone on this jury panel who has ever read an add [sic] in a magazine or newspaper or seen advertisements on TV or heard them on the radio which suggest that large jury verdicts increase insurance premiums?

2.Is there anyone on this jury panel who believes that large jury verdicts in car accident cases would increase their insurance premiums?

3.Is there anyone on this jury panel who has ever read an add [sic] in a magazine or newspaper or seen advertisements on TV or heard them on radio which suggest that only the doctors and the lawyers for the Plaintiff receive any money from any jury verdict?

4.Is there anyone on this jury panel who believes that only the doctors and the lawyers for the Plaintiff receive any money from any jury verdict?

The appellant argues that the insurance industry in this country engages in advertising campaigns designed to influence the size of damage awards.

In the absence of a complete record, we can only speculate that the purpose of disallowing the questions was to prevent the issue of insurance from being impressed on the minds of the jurors.

Mentioning of insurance to the jury generally is reversible error.Leftwich v. Wesco Corp., 146 W.Va. 196, 119 S.E.2d 401, 412-13(1961).An exception to the general rule may be made "where a reference to insurance is brought out for the purpose of showing bias on the part of a witness ..."Leftwich, supra, 146 W.Va. at 216, 119 S.E.2d at 413.Questions seeking to discover whether potential jurors are stockholders, employees, officers, or agents of an insurance company are not permitted unless counsel initially explains to the trial court the reasons necessitating the inquiry.Adams v. Cline Ice Cream Co., 101 W.Va. 35, 131 S.E. 867(1926);Lynch v. Alderton, 124 W.Va. 446, 20 S.E.2d 657(1942).

The limited record we have before us does not show that any explanation or showing of possible prejudice was offered to the trial court.Jurisdictions which permit an inquiry into juror bias generated by insurance advertising require a proper showing, including an offer of recent advertisements.Borkoski v. Yost, 182 Mt. 28, 594 P.2d 688(1979);King v. Westlake, 264 Ark. 555, 572 S.W.2d 841(1978).

In syllabus point 4 of Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186(1961), this Court held:

"Jurors may be questioned on their voir dire not only for the purpose of showing cause for a challenge, but also, within reasonable limits, to elicit such facts as enable the parties to exercise intelligently their right of peremptory challenge.The nature and extent of the examination, however, should be left largely to the discretion of the trial court."State v. Stonestreet, Point 1 Syllabus, 112 W.Va. 668[166 S.E. 378(1932) ].

We find no abuse of discretion in the trial court's refusal to ask voir dire questions relating to insurance advertising.

II

On April 12, 1981, at approximately 6:45 p.m. a 1979Ford Bronco, driven by the appellant, and a 1980 Ford pickup truck, driven by the appellee, collided on Poca Road near Walton in Roane County.

We have been provided with a partial transcript of the trial, containing only the testimony of the investigating officer.Appellant's brief summarizes other testimony as follows:

The Plaintiff was called to the stand and testified as to the details of the accident the following: that he was driving towards Walton on Poca River Road on his side of the road when he observed Defendant's vehicle coming into a sharp curve at a rate of speed excessive for the road, and Defendant locked up his brakes and began sliding sideways, impacting Plaintiff's car while Plaintiff was off the road with the right-front tire, knocking Plaintiff over the hill causing Plaintiff's vehicle to roll over and end up close to the Poca River.

....

The Defendant testified that when he first observed Plaintiff, Plaintiff was over the center line and travelling at a rate of speed between 25 and 35 mile per hour and that he put on his brakes, and the truck slid uncontrollably into Plaintiff's vehicle.

The appellee's brief does not challenge the substance of the foregoing summaries.

The appellant called the investigating officer, Trooper Frank Slone, as a witness.The trial judge, on appellant's motion, ruled, without objection, that Trooper Slone was qualified as an expert in accident investigation.

Trooper Slone prepared a diagram of the accident scene that was shown to the jury...