Voelker v. Frederick Business Properties Co., No. 22865

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH; ALBRIGHT; MILLER
• Citation: 195 W.Va. 246,465 S.E.2d 246
• Parties: Pamela J. VOELKER, Administratrix of the Estate of Blake Andrew Weisenburg, Plaintiff Below, Appellant, v. The FREDERICK BUSINESS PROPERTIES COMPANY and Vincent Joseph Root, Sr., Defendants Below, Appellees.
• Decision Date: 17 November 1995
• Docket Number: No. 22865

Page 246

465 S.E.2d 246 195 W.Va. 246 Pamela J. VOELKER, Administratrix of the Estate of Blake
Andrew Weisenburg, Plaintiff Below, Appellant,
v.
The FREDERICK BUSINESS PROPERTIES COMPANY and Vincent Joseph
Root, Sr., Defendants Below, Appellees. No. 22865. Supreme Court of Appeals of
West Virginia. Submitted Sept. 13, 1995.
Decided Nov. 17, 1995.

Page 248

[195 W.Va. 248] Syllabus by the Court

1. " ' " '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)." Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).' Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985)." Syl. pt. 10, Board of Education v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).

2. Evidence of a beneficiary's relationship with the decedent may be admitted into evidence for purposes of determining damages in a wrongful death action pursuant to W.Va.Code, 55-7-6(c)(1) [1989] which provides for the recovery of damages for "[s]orrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent[.]" Whether evidence is relevant pursuant to W.Va.R.Evid. 401 and 402 when determining damages in a wrongful death action and whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice pursuant to W.Va.R.Evid. 403 must be determined on a case-by-case basis. Moreover, on appeal this Court will not disturb a trial court's ruling on the admissibility of such evidence unless there has been an abuse of discretion.

3. " 'In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.' Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103 [, 181 S.E.2d 334] (1971)." Syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327 (1978).

4. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

5. " 'Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.' Syllabus Point 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964)." Syl. pt. 3, O'Neal v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420 (1991).

6. "The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties." Syl. pt. 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).

7. " ' " ' "Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone." Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971).' Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986)." Syllabus Point 3, Lenox v. McCauley, 188 W.Va. 203, 423 S.E.2d 606 (1992).' Syllabus Point 6, Michael

Page 249

[195 W.Va. 249] v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994)." Syl. pt. 7, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).

D. Michael Burke, Burke & Schultz, Martinsburg, for Appellant.

Robert B. Keddie, Keddie & Keddie, Bridgeville, Pennsylvania, for, Appellee Vincent Joseph Root, Sr.

Donna M. Robinson, Nashville, Tennessee, for Appellee Frederick Business Properties Company.

McHUGH, Chief Justice:

The appellant, Pamela J. Voelker, appeals the August 24, 1994 order of the Circuit Court of Berkeley County which denied her motion for a new trial. The appellant, as an administratrix, sought to recover damages for the wrongful death of her son who was almost six years old at the time of his death. The jury returned a verdict for the appellees, Frederick Business Properties Co. and Vincent Joseph Root, Sr. For reasons explained below, we affirm the circuit court's order.

I

On May 3, 1991, the appellant's son was standing at a school bus stop located near an apartment complex with an adult, Glenda Smith, and another child. ¹ As the appellee, Vincent Root, approached the school bus stop, the appellant's son started to run out into the street in front of Mr. Root's vehicle. Mr. Root brought his vehicle to a complete stop without hitting the appellant's son.

Mr. Root then motioned for Ms. Smith and the two children to cross the street. Ms. Smith declined to cross the street. Mr. Root testified that he understood Ms. Smith to be responding on behalf of herself and the two children.

Thereafter, Mr. Root started to move his truck when he felt a bump. Upon stopping his truck and exiting the vehicle, Mr. Root saw that his left front tire had run over the appellant's son causing fatal injuries to his abdomen and thoracic regions.

II

The primary issue in this case concerns the admission of evidence of a beneficiary's relationship with a decedent in an action brought for the wrongful death of the decedent. ² More specifically, in the case before us, the appellant challenges the admission of evidence regarding a mother's character, parental expertise, and private personal relationships in an action brought for the wrongful death of her child.

The appellant maintains that the admission of such evidence is not relevant pursuant to W.Va.R.Evid. 401 and 402 when determining whether a wrongful death occurred, and even if it would be relevant, such evidence should be excluded pursuant to W.Va.R.Evid. 403 because its probative value is substantially outweighed by the danger of unfair prejudice. Conversely, the appellees contend that such evidence in the case before us is relevant when determining whether damages for [195 W.Va. 250]

Page 250

"[s]orrow, mental anguish, and solace ..." should be awarded in a wrongful death action. See W.Va.Code, 55-7-6 [1989]. ³ Furthermore, the appellees assert that the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice.

At common law there was no action for damages arising out of a wrongful death. See Dunsmore v. Hartman, 140 W.Va. 357, 359, 84 S.E.2d 137, 138 (1954). The wrongful death action was first created by an English statute known as Lord Campbell's Act which this State essentially adopted in 1863. Id. Today the right to bring a wrongful death action is codified at W.Va.Code, 55-7-5 [1931] which states, in relevant part:

Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person, who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured[.]

W.Va.Code, 55-7-6 [1989] provides, inter alia, who may bring an action for wrongful death, the damages which may be collected, and how the damages are to be distributed. More specifically, W.Va.Code, 55-7-6(c)(1) [1989] states:

(c)(1) The verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.

(emphasis added). The question, in the case before us, is whether evidence regarding the relationship between a beneficiary and the decedent is relevant in determining whether damages should be awarded for "[s]orrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent[.]" Id.

In essence, the appellant argues that any evidence regarding the bad character of the plaintiff beneficiary or her poor relationship with the decedent is irrelevant in a wrongful death action. The appellant asserts such evidence is prejudicial in that the jury may choose to not award damages solely because of the bad character of the plaintiff beneficiary or the poor relationship with the decedent and ignore the evidence which clearly shows that the defendant's wrongful act, neglect, or

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[195 W.Va. 251] default caused the decedent's death. We disagree with the appellant's conclusion.

Our discussion begins with W.Va.R.Evid. 401, 402, and 403. We emphasize that these three rules are to be read together and are not to be applied in isolation. See 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 4-1[E](4) (3d ed.1994). W.Va.R.Evid. 402 states: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of Appeals....