Ours v. West Virginia Dept. of Motor Vehicles, 16043

• Decision Date: 13 April 1984
• Docket Number: No. 16043,16043
• Court: West Virginia Supreme Court
• Parties: Darlina Kay OURS v. WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES and Virginia L. Roberts, as Commissioner.

Page 634

315 S.E.2d 634

173 W.Va. 376

Darlina Kay OURS v. WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES and Virginia L Roberts, as Commissioner.

No. 16043.

Supreme Court of Appeals of West Virginia.

April 13, 1984.

Syllabus by the Court

1. Reports prepared by a police officer investigating an automobile accident and reports prepared by persons involved in such accident may not be the sole evidence upon which the Commissioner of the Department of Motor Vehicles bases a determination, after a suspension hearing conducted pursuant to W.Va.Code, 17D-3-15 [1972], that there is a "reasonable possibility of judgment" against a driver or owner of a vehicle involved in the accident and from whom security for that accident has been required pursuant to the provisions of chapter 17D, article 3 of the West Virginia Code.

2. "Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: '(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.' " Syl. pt. 2, Shepherdstown Volunteer Fire Department v. State of West Virginia Human Rights Commission, W.Va., 309 S.E.2d 342 (1983).

Keith H. Gordon, Fairmont, for appellant.

John E. Shank, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Chief Justice:

This action is before this Court upon appeal pursuant to W.Va.Code, 29A-6-1 [1964], of the West Virginia Administrative Procedure Act (hereinafter "APA"), ¹ from the final judgment of the Circuit Court of Kanawha County, entered October 27, 1983, in which that court affirmed an order of the appellee, the Commissioner of the West Virginia Department of Motor Vehicles (hereinafter "Commissioner"). After an administrative hearing, the Commissioner, pursuant to the provisions of chapter 17D, article 3 of the West Virginia Code, suspended the operator's license and vehicle registration of the appellant, Darlina Kay Ours, when the Commissioner determined that there was a "reasonable possibility of judgment" against the appellant for her involvement in an automobile accident. This Court has before it the petition for appeal, all matters of record and the briefs and oral argument of counsel.

On August 18, 1982, the appellant was involved in an automobile accident with Paul Eddy in Marion County, West Virginia. According to an accident report prepared by a Fairmont police officer, reports prepared by the persons involved and the testimony of the appellant, the accident occurred at a "T" intersection. The appellant was travelling east on the vertical portion of the "T" toward the intersection and intended to turn left to go to her sister's house which was located approximately 200-300 yards from the intersection. The appellant testified that she came to a stop at the intersection and then slowly proceeded into the horizontal portion of the "T". She stated that bushes and various other structures obstructed her view to the left and the movement into the intersection was necessary to observe vehicles coming from that direction. She testified that she heard a car coming from the left and that "he was coming out there fairly fast." She then stopped her car in such a position that approximately two feet of her car was protruding into the intersection. The two cars collided causing over $250 property damage to the car driven by Eddy. It is uncontested by the parties that on the day of the accident the appellant did not have automobile insurance.

In October, 1982, the Commissioner sent the appellant a proposed order of suspension informing her that her operator's license and vehicle registration would be suspended if she failed to perform one of various options calculated to insure her financial responsibility for the accident. ² The appellant was also informed of her right to an administrative hearing which she requested in lieu of the above options. During the administrative hearing only the appellant and her sister testified. Eleven exhibits were accepted into evidence by the hearing examiner including accident reports prepared by a police officer, Eddy and the appellant. At the hearing, the appellant objected to the admission into evidence of the accident reports of the police officer and Eddy on the basis of being hearsay.

An order was subsequently entered by the Commissioner suspending the operator's license and vehicle registration of the appellant. In her findings of fact, the Commissioner overruled the appellant's objections to the evidentiary use of the reports and noted that the appellant had been cited by a Fairmont police officer, who had arrived at the scene after the accident, for not having the right of way at the intersection. The Commissioner concluded that there was "a reasonable possibility that a civil judgment could be rendered against Darlina K. Ours as a direct result of her involvement in the accident."

The appellant appealed the Commissioner's order to the Circuit Court of Kanawha County pursuant to W.Va.Code, 29A-5-4 [1964], of the APA, ³ contending that the Commissioner had erred when the hearsay accident reports of the police officer and Eddy were admitted into evidence and relied upon. The circuit court affirmed the order.

The principal issue presented to us is the extent to which the Commissioner may consider reports prepared by a police officer investigating an automobile accident and reports prepared by persons involved in such accident when the Commissioner determines, after a suspension hearing conducted pursuant to W.Va.Code, 17D-3-15 [1972], that there is a "reasonable possibility of judgment" against a driver or owner of a vehicle involved in the accident and from whom security has been required under the provisions of chapter 17D, article 3 of the West Virginia Code. ⁴

The appellant primarily challenges the procedures employed by the Commissioner under W.Va.Code, 17D-3-15 [1972], which section establishes the right of a person from whom security has been required under article 3 to an administrative hearing. ⁵ W.Va.Code, 17D-3-15 [1972], provides that "[t]he scope of such hearing shall be whether there is a reasonable possibility of judgment being rendered against the person requesting the hearing as a result of the accident in question." The same section further provides that "[a]ll of the pertinent provisions of article five, chapter twenty-nine-A of this Code shall apply to and govern the hearing and the administrative procedures in connection with and following such hearing with like effect as if the provisions of said article five were set forth in extenso in this section...."

With respect to evidence during these hearings, W.Va.Code, 29A-5-2 [1964], of the APA, provides, in relevant part, as follows:

(a) In contested cases irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the circuit courts of this State shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Agencies shall be bound by the rules of privilege recognized by law. Objections to evidentiary offers shall be noted in the record. Any party to any such hearing may vouch the record as to any excluded testimony or other evidence.

(b) All evidence, including papers, records, agency staff memoranda and documents in the possession of the agency, of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.

See generally 73A C.J.S. Public Administrative Law and Procedure §§ 125-130 (1983).

Under our rules of evidence, hearsay is inadmissible as evidence unless it meets one of the numerous exceptions to this well-founded rule. See Hill v. Joseph T. Ryerson & Son, Inc., W.Va., 268 S.E.2d 296 (1980); Salerno v. Manchin, 158 W.Va. 220, 213 S.E.2d 805 (1974); Reynolds v. W.T. Grant Co., 117 W.Va. 615, 186 S.E. 603 (1936); Wade v. Haught, 112 W.Va. 469, 164 S.E. 662 (1932). Hearsay is defined as an extrajudicial assertion, whether it be written, verbal or nonverbal conduct, which is offered for the truth of the matter asserted therein. See generally D. Binder, Hearsay Handbook, § 1.01 (2d ed. 1983); E. Cleary, McCormick's Handbook of the Law of Evidence § 246 (2d ed. 1972); F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 48 (Cum.Supp.1983). As a general rule, accident reports are admissible under the official records exception to the hearsay rule if they meet certain criteria calculated to insure their reliability and trustworthiness. See generally Binder, supra at § 10.02; Cleckley, supra at § 58.

Although W.Va.Code, 29A-5-2 [1964], clearly provides that "[t]he rules of evidence as applied in civil cases in the circuit courts of this State shall be followed" in administrative hearings and further provides that "[a]ll evidence, including papers, records, agency staff memoranda...