Pickett v. Taylor

• Decision Date: 21 December 1987
• Docket Number: No. 17103,17103
• Citation: 364 S.E.2d 818,178 W.Va. 805
• Parties: Mary PICKETT, Administratrix, etc., Appellant, v. Anthony Lee TAYLOR, Appellee. Anthony Lee TAYLOR, Appellee, v. Marshall HALL, Appellee.
• Court: West Virginia Supreme Court

Page 818

364 S.E.2d 818

178 W.Va. 805

Mary PICKETT, Administratrix, etc., Appellant, v. Anthony Lee TAYLOR, Appellee.

Anthony Lee TAYLOR, Appellee, v. Marshall HALL, Appellee.

No. 17103.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1987.

Syllabus by the Court

1. "A trial court, pursuant to the provisions of R.C.P. 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to the civil actions which have been so consolidated." Syllabus Point 1, Holland v. Joyce, 155 W.Va. 535, 185 S.E.2d 505 (1971).

2. Under W.Va.Code, 17C-9-4, a driver who wishes to enter a public highway from a private road or driveway may not proceed into the path of other vehicles on the highway unless the entry can be made safely in the exercise of reasonable care. Where a safe entry is impossible, the driver must reduce speed or stop his vehicle, as necessary, to permit the passage of favored vehicles. However, there is no absolute duty to stop in all instances.

3. "The fact that a vehicle may have a right of way over a public road or street, does not relieve the operator of such vehicle from the duty to operate the same with reasonable care." Syllabus Point 1, Vaughan v. Oates, 128 W.Va. 554, 37 S.E.2d 479 (1946).

4. Where the violation of a motor vehicle speed statute is relied upon to prove negligence on the part of the operator of a motor vehicle, it is not necessary to prove that the operator was aware of the speed limit.

5. Testimony that a speed limit sign was posted on a public highway gives rise to a presumption that the speed limit was properly authorized by the appropriate governmental agency. Once the presumption is invoked, the burden shifts to the opposing party to prove an irregularity in the authorization process which would render the limit void.

Randall L. Veneri, Princeton, for Pickett and Hall et al.

G.W. Lavender, III, Bluefield, for Taylor.

MILLER, Justice:

We consider in this appeal the propriety of a circuit court order consolidating two cases under Rule 42(a) of the West Virginia Rules of Civil Procedure (W.Va.R.C.P.), which arose out of a motor vehicle accident. That order consolidated for trial purposes (1) a suit for wrongful death resulting from the accident, and (2) a suit for battery involving an altercation immediately after the accident. Error is also assigned with regard to certain instructions. We conclude that the court abused its discretion in ordering a consolidation and that instructional error was committed. We, therefore, reverse and remand for a new trial.

Benjamin Jessie Hall, Sr. was killed on September 3, 1982 when his vehicle was struck by a pickup truck driven by Anthony Lee Taylor. The collision occurred as the deceased attempted to pull out of a convenience store parking lot onto State Route 71 near Montcalm, West Virginia. Upon impact, the deceased was thrown from his vehicle and sustained fatal injuries to his upper chest. His wife, Elizabeth Marie Hall, was a passenger in the Hall vehicle and sustained personal injuries.

Marshall Hall, a son of the deceased, witnessed the accident while working at the convenience store only a few yards away. He immediately ran to the accident situs and began to render assistance. What happened next is the subject of dispute by the parties. Taylor contends the younger Hall struck him without provocation on the left side of the chin. The testimony of other trial witnesses suggests the altercation arose after Taylor referred to the deceased as an "old son of a bitch" and said he had "pulled out in front of [him]" prior to the accident. Taylor was required to undergo surgery for injuries to his jaw.

Mrs. Hall was duly appointed as executrix of her husband's estate and, on November 2, 1983, brought a wrongful death suit against Taylor in the Circuit Court of Mercer County. She subsequently resigned as executrix, and brought personal injury suits on her own behalf against Taylor and the Hall estate. Mary Pickett, the deceased's daughter, was appointed as administratrix c.t.a. and substituted as plaintiff in the wrongful death suit. ¹

On May 4, 1983, Taylor brought suit against Marshall Hall for battery, and sought compensatory and punitive damages in the amount of $300,000. Over one year later, Taylor moved to consolidate the wrongful death and battery suits. The circuit court granted the motion in an order dated July 19, 1984. The order stated that consolidation would save expenses and promote judicial economy, as the same witnesses would be called in both cases.

After a two day trial in May, 1985, the jury returned a verdict in favor of Taylor in both of the consolidated cases. The sum of $5,520.72 in compensatory damages and $12,500 in punitive damages was awarded to Taylor in the battery suit. A final judgment order was entered on June 14, 1985, and the Hall estate brings this appeal.

I.

We address first the plaintiff's argument that the court improperly ordered a consolidation of the wrongful death and battery suits. Rule 42(a), W.Va.R.C.P., authorizes a trial court to consolidate two or more suits pending before it where the suits "involv[e] a common question of law or fact[.]" This rule, like its federal analogue, serves to advance two related goals--to promote judicial dispatch and economy, and to guarantee substantial justice to the parties. 9 C. Wright & A. Miller, Federal Practice & Procedure § 2381 (1971).

The circuit court is vested with a broad discretion to determine whether consolidation is desirable. Where, however, the court abuses that discretion to the prejudice of one or more of the parties, a reversal on appeal will be warranted. We summarized these principles in Syllabus Point 1 of Holland v. Joyce, 155 W.Va. 535, 185 S.E.2d 505 (1971):

"A trial court, pursuant to the provisions of R.C.P. 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to the civil actions which have been so consolidated."

See also, Fortner v. Napier, 153 W.Va. 143, 168 S.E.2d 737 (1969).

Applying our rule in Holland, we conclude that consolidation of the suits involved here was an abuse of discretion. The circuit court, in its order, emphasized the overlap of potential witnesses in the wrongful death and battery suits, and concluded that consolidation would promote judicial economy. These reasons, however, overlook the threshold requirement for application of Rule 42(a). The rule specifically provides, as a condition for consolidation, that the suits "involv[e] a common question of law or fact[.]" St. Paul Fire & Marine Ins. Co. v. King, 45 F.R.D. 519 (W.D.Okl.1968); Olivier v. Humble Oil & Ref. Co., 225 F.Supp. 536 (E.D.La.1963); 9 C. Wright & A. Miller, Federal Practice & Procedure § 2382 (1971). A review of the record demonstrates convincingly that there are no common questions presented in the wrongful death and battery suits.

It is true, as Taylor points out, that the events which underlie the two suits were proximate in time and space. Of greater importance to our inquiry is that the suits were premised upon separate theories of liability and involved distinct operative facts. The wrongful death suit had as its central issues the negligence of Taylor and the deceased in the operation of their respective vehicles. These issues were to be resolved by application of motor vehicle rules on speed, lookout and right of way. Marshall Hall was not a participant in the accident and his conduct, therefore, would play no part in the jury's apportionment of negligence and assessment of damages.

The battery which occurred after the accident bore no relationship to the accident issues. Factually, it arose out of the circumstances of the altercation, and not out of the motor vehicle accident. It involved an intentional tort by a party unconnected to the automobile accident such that his role had nothing to do with its issues.

It is, we believe, equally apparent that substantial prejudice flowed from the consolidation order. The circumstances of the battery were highly inflamatory and prone to have an adverse impact on the wrongful death suit. There were at least two potential sources of prejudice. First, the posture of the consolidated cases could have led the jury to believe the wrongful death and battery were interdependent--that is, that recovery in the wrongful death suit was conditioned on the younger Hall being "fault free" in the battery suit. Second, it would have been only natural for the jury to seek to "punish" Hall's family for the perceived impetuousness of Marshall Hall. The cumulative and pervasive nature of the prejudice mandates a reversal under Holland.

II.

We believe that additional error was committed in certain instructions given by the trial court with regard to the wrongful death claim.

A.

The plaintiff objects to "Taylor's Instruction No. 8," as amended by the court, which dealt with the subject of yielding the right of way. The instruction informed the jury that upon approaching the highway, the deceased was obliged to "stop and ... not enter or start into the highway without first seeing that such a movement [could] be made with safety[.]" (Emphasis added.) The jury was further instructed that Taylor, as a driver lawfully upon the highway, was entitled to assume that the deceased would stop his vehicle prior to entry.

This entry on the highway issue is controlled by W.Va.Code, 17C-9-4, which reads:

"The driver of a vehicle...