Proudfoot v. Dan's Marine Service, Inc.

• Decision Date: 30 October 2001
• Docket Number: No. 29291.,29291.
• Citation: 210 W.Va. 498,558 S.E.2d 298
• Parties: Laurel PROUDFOOT, Plaintiff Below, Appellee, v. DAN'S MARINE SERVICE, INC., a West Virginia Corporation, Defendant Below, Appellant. Shore-Masters, Inc., A Minnesota Corporation, Defendant Below.
• Court: West Virginia Supreme Court

558 S.E.2d 298

210 W.Va. 498

Laurel PROUDFOOT, Plaintiff Below, Appellee, v. DAN'S MARINE SERVICE, INC., a West Virginia Corporation, Defendant Below, Appellant.

Shore-Masters, Inc., A Minnesota Corporation, Defendant Below.

No. 29291.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2001.

Decided October 30, 2001.

Concurring Opinion of Justice Starcher January 8, 2002.

David W. Frame, Clarksburg, West Virginia, for appellee.

Avrum Levicoff, Brown & Levicoff, Pittsburgh, Pennsylvania, for appellant.

MAYNARD, J.

Dan's Marine Service, Inc., the appellant and defendant below, appeals the July 27, 2000 order of the Circuit Court of Taylor County in which the circuit court denied the appellant's motion for a new trial. After reviewing the issue raised by the appellant, we reverse and remand.

I. FACTS

On August 16, 1996, Laurel Proudfoot, the plaintiff below and appellee, was injured when she fell through the floating dock at the marina at Tygart Lake in Taylor County, West Virginia. The marina was operated by Dan's Marine Service, Inc., the defendant below and appellant.

Ms. Proudfoot subsequently filed a personal injury action against Dan's Marine Service. Liability was admitted, and a two-day trial was held on February 16 and 17, 2000, on the issues of causation and damages. After hearing the evidence, the jury returned a verdict for Ms. Proudfoot in the amount of $140,956.45. In its March 6, 2000 order, the circuit court entered judgment for Ms. Proudfoot in the amount of $143,387.39 which included pre-judgment and post-judgment interest.

Dan's Marine Service filed a motion for a new trial in which it alleged, inter alia, that one of the jurors, Olive Crow, had been convicted of a felony and was, therefore, disqualified from sitting on a jury pursuant to W.Va.Code § 52-1-8(b)(6). Subsequent hearings on the motion revealed that several years earlier Ms. Crow had pled guilty to one count of embezzlement. On the juror qualification form filled out by potential jurors prior to trial, Ms. Crow had answered "No" to the question "Have you ever been convicted of perjury, false swearing, or other infamous crime?" Further, Ms. Crow failed to reveal her felony conviction during voir dire when the circuit court inquired of the jury panel whether any of them had been convicted of a felony.¹ Dan's Marine Service asserted that Ms. Crow's statutory disqualification from serving as a juror automatically mandated the granting of a new trial. In its July 27, 2000 order denying Dan's Marine Service's motion for a new trial, the Circuit Court of Taylor County made the following findings of fact and conclusions of law:

First, the Court finds and concludes that Olive Crow, one of the jurors who was sworn and subscribed to the verdict in this matter, is and was at the time of jury selection ... and at the time of trial ... a convicted felon having been convicted by the Circuit Court of Randolph County for the felony offense of embezzlement.

Second, the Court finds that no agents, servants or employees of the defendant, Dan's Marine Service, Inc., including Dan Williams, appeared at jury selection, but that only counsel for the defendant appeared at jury selection.

Third, the Court finds that the juror, Olive Crow, on the initial juror qualification form marked that she had not ever been convicted of perjury, false swearing or any other infamous offense. The Court finds that such response on the juror qualification form was false.

Fourth, at the time of the general swearing of the jury, the Court went through each question on the juror qualification form, and specifically explained that the term "infamous offense" meant a felony. The Court inquired of the jury panel whether any of them had been so convicted. At that time, the juror Olive Crow either failed to answer or did not admit that she had been convicted of a felony. Therefore, the Court finds that she answered the Court's questions falsely.

Fifth, the Court finds and concludes that at the time of trial, Olive Crow was, in fact, disqualified from sitting on the jury in this case, or on any other jury in a civil case in West Virginia, in light of the statutory disqualification provided under West Virginia Code 52-1-8(d)(6) [sic].

Sixth, the Court finds based upon the testimony of witnesses who have appeared at the post verdict hearings in this matter, specifically the testimony of Dan Williams, that the defendant did not have knowledge of Olive Crow's felony conviction and consequent disqualification until the day after the trial in this matter.

...

Seventh ... the Court is of the opinion that such disqualification and false concealment by the juror is not in and of itself a sufficient basis to set aside the verdict and grant a new trial. Instead, the Court is of the opinion that under the current law the defendant must separately demonstrate actual prejudice....

Eighth, the Court finds and concludes that ... the defendant has not otherwise shown substantial prejudice.

Dan's Marine Service now appeals this order.

II. STANDARD OF REVIEW

This Court has held:

Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). Recently, we noted that in reviewing an order denying a new trial, we review "the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Gum v. Dudley, 202 W.Va. 477, 482, 505 S.E.2d 391, 396 (1997) quoting Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). With these standards in mind, we now turn to the issue before us.

III. DISCUSSION

The appellant's position is that a verdict should be set aside and a new trial granted without any additional specific showing of prejudice when it is discovered that a juror is a convicted felon and lied to conceal the conviction. In support, the appellant argues, first, that our system of jurisprudence vests so much trust and confidence in the jury that any substantial irregularity in the impaneling of the jury must require setting aside the verdict. Two, because of the constraints on investigating the deliberative process of juries, it is doubtful that a specific showing of prejudice could ever be made. Three, the guarantee of a trial by jury in Article III, Section 13 of the West Virginia Constitution presumably means six qualified jurors. Finally, cases in other jurisdictions clearly hold that when a disqualified juror lies to conceal the disqualification and subscribes to the verdict, a new trial is required.

In response, the appellee points to State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989), on which the circuit court based its ruling, which states the traditional West Virginia rule that before juror disqualification merits a new trial, it must appear that the complainant suffered injustice by reason of the disqualification. The appellee's primary argument is that no juror bias or prejudice has been shown in this case, nor is there any rational reason to infer prejudice. Second, the appellee opines that the appellant was allowed under the applicable rules to make a limited inquiry into the jury's decision but failed to do so. Finally, the appellee contends that the majority of other jurisdictions support the requirement of actual prejudice to set aside a jury verdict.²

The appellee is correct in asserting that traditionally this Court has required a showing of prejudice or harm to the complainant prior to setting aside a verdict due to alleged juror disqualification. This rule was stated early on in Syllabus Point 1 of Flesher v. Hale, 22 W.Va. 44 (1883):

It is the settled law of this State, in both criminal and civil trials, that the verdict of a jury will not be set aside for objections to jurors, on grounds which existed before they were sworn, unless it appears that by reason of the existence of such grounds the party objecting has suffered wrong or injustice; and the ignorance of the parties of the existence of such grounds until after verdict is immaterial.

See also, Syllabus Point 17, Sweeney v. Baker, 13 W.Va. 158 (1878), overruled in part on other grounds by Bailey v. Charleston Mail Ass'n, 126 W.Va. 292, 27 S.E.2d 837 (1943), ("A new trial will not be granted, because a juror is alleged to have made up his mind on the merits of the case, before he was called on the jury; unless it appears from the whole case, that the party seeking the new trial suffered injustice from the fact, that such juror served"); Malone v. Monongahela Valley Traction Co., 105 W.Va. 60, 141 S.E. 440 (1928) (affirming denial of a new trial where two jurors were alleged to be incompetent, one because of bias and partiality and the other because of a relationship with the plaintiff); Watkins v. Baltimore & O.R. Co., 130 W.Va. 268, 43 S.E.2d 219 (1947) (reversed trial court's grant of new trial where complainant's affidavit, alleging that a juror was an employee of the defendant, was found to be deficient because it did not show prejudice to the plaintiff); Syllabus Point 13, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966) (holding that "[e]ven if a petit juror served on the jury which convicted a defendant and also had served on the grand jury which had indicted him, the verdict of the jury will not be set aside on motion of the defendant after the verdict if it appears that the defendant had a fair and impartial trial"); Beck v. Thomson, 31 W.Va. 459, 7 S.E. 447 (1888), overruled in part on other grounds by Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), (affirming the denial of a new trial where a...