West Virginia Dept. of Highways v. Fisher
| Decision Date | 22 March 1982 |
| Docket Number | No. 15379,15379 |
| Citation | 170 W.Va. 7,289 S.E.2d 213 |
| Court | West Virginia Supreme Court |
| Parties | WEST VIRGINIA DEPARTMENT OF HIGHWAYS, A Corporation, and Charles L. Miller, West Virginia Commissioner of Highways v. E. L. FISHER and Anna Margaret Fisher, Husband and Wife. |
Syllabus by the Court
1. "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).
2. Where a physician-patient relationship exists between a party to litigation and a prospective juror, although such prospective juror is not disqualified per se, special care should be taken by the trial judge to ascertain, pursuant to W.Va.Code, 56-6-12 [1931], that such prospective juror is free from bias or prejudice.
3. In an eminent domain action, although all prospective jurors stated that they could return a verdict free from bias or prejudice, where the record indicates that 13 prospective jurors were acquainted with the landowners and/or their appraisal witnesses, which witnesses testified at trial, and, of the petit jury selected from those prospective jurors, six jurors were acquainted with the landowners and/or such appraisal witnesses, a likelihood of bias or prejudice on the part of the jury existed sufficient to require that the verdict of the jury be set aside and a new trial awarded.
Preiser & Wilson, L. Alvin Hunt, Charleston, for appellants.
Jack D. Huffman, Gassaway, for appellees.
This action is before this Court upon the petition of the West Virginia Department of Highways (hereinafter "appellant"), and the commissioner of that department, for an appeal from the final order of the Circuit Court of Braxton County, West Virginia. Specifically, the appellant appeals to this Court from a verdict in the amount of $841,900 returned by a jury in favor of the appellees, E. L. Fisher and Anna Margaret Fisher, husband and wife. That verdict resulted from an eminent domain proceeding instituted by the appellant in circuit court. This Court has before it the petition for appeal, all matters of record, including a transcript of the trial in this matter, and the briefs and argument of counsel.
The appellee, E. L. Fisher, is a physician and has practiced medicine in Braxton County for more than 40 years. During the period in question, the appellees were the owners of a cattle farm in excess of 500 acres in Braxton County, West Virginia. That land fronted on U.S. Route 19 and W.Va. Route 4 and was located near Flatwoods, West Virginia. Pursuant to the construction of Interstate 79 through West Virginia, the appellant acquired, by eminent domain, right-of-ways and easements over approximately 80 acres of the appellees' property. That taking resulted in the construction of the Flatwoods interchange to Interstate 79.
The date of the taking of the appellees' property by the appellant was April 29, 1970, as designated by order of the circuit court pursuant to the eminent domain procedures outlined in W.Va.Code, 54-2-1, et seq. On August 19, 1970, a hearing was held before condemnation commissioners. Both the appellant and the appellees filed exceptions to the award of the commissioners, and a jury trial in circuit court resulted.
On August 4, 1980, a circuit court jury was selected by counsel for the parties. On September 10, 1980, however, that jury was discharged as the result of a mistrial, and new jury selection began on September 11, 1980. Trial then began, and on September 19, 1980, the jury returned its verdict compensating the appellees in the amount of $841,900 for the taking of their land. The circuit court entered judgment upon the jury verdict, and by order entered December 3, 1980, denied the appellant's post-trial motion. It is from the final order of the Circuit Court of Braxton County that the appellant appeals to this Court.
A substantial difference of opinion existed in this action with respect to the amount of compensation to which the appellees were entitled for the taking of their property. The appellees asserted that they were entitled to in excess of one million dollars for the taking. On the other hand, the appellant asserted that $38,500 was fair and just compensation for the taking.
During the trial, the appellee, Dr. Fisher, was called as a witness. He testified that his property taken by the appellant for highway construction had a fair market value in April, 1970, of $1,506,830. Furthermore, Dr. Fisher testified that the damage to the residue of his property was $196,970. Therefore, Dr. Fisher asserted that he was entitled to a total of $1,703,800 as fair and just compensation for the taking of his property by the appellant. 1 During his testimony, Dr. Fisher divided the property into categories based upon the characteristics of the property. Based upon those categories, values per acre were assigned to the property.
The appraisal witnesses who testified on behalf of the appellees were Harry Kyer and Wallace H. Hefner, Jr. At the time of trial, Kyer had been in the real estate business for six or seven years, and Hefner was a loan officer in a bank. Both witnesses were familiar with the appellees' farm and during the trial discussed other properties in the area. 2 Neither witness, however, based his appraisal of the property in question upon the sales of comparable property. Specifically, Hefner testified that there was no property in the area that was, in fact, comparable to the appellees' property.
Kyer appraised the property of the appellees taken by the appellant at $1,707,420, with damage to the residue in the amount of $355,590. According to Kyer, therefore, the appellees were entitled to a total sum of $2,063,010 for the taking of their land. Hefner valued the property taken at $20,000 per acre for a total amount due the appellees of approximately, $1,600,000.
The appraisal witness for the appellant was Harold Wingate. Wingate had been a real estate appraiser for 25 years. Wingate had experience in appraising various tracts of land in Braxton County and first examined the appellees' land in 1967. As did the appellees, Wingate divided the appellees' property into various categories based upon the characteristics of that property. Upon the basis of those categories, Wingate assigned values per acre with respect to the property taken. Wingate concluded that $38,500 was fair and just compensation as of April 29, 1970, for the taking of the appellees' property by the appellant. Wingate further concluded that the construction of Interstate 79 resulted in an increase in value of the residue of the appellees' property beyond any damage sustained. Wingate stated during the trial that in arriving at the $38,500 figure, he considered sales of land in the area he believed to be comparable to the land of the appellees. Those sales included the sale of 84 acres in March, 1966, the sale of 57 acres in November, 1966, and the sale of 4.77 acres in August, 1966.
As the petition for appeal indicates, the appellant asks this Court to reverse the final order of the circuit court and grant a new trial. As a ground for relief, the appellant contends that many prospective jurors, from which the petit jury was selected, were personally acquainted in a social or business manner with the appellees and their witnesses. Therefore, the appellant contends that its motion to dismiss all 20 prospective jurors for cause and its motion for a change of venue should have been granted. The appellant contends that the jury was not fair and impartial and that the verdict for the appellees was excessive. The appellant further contends that certain instructions given by the circuit court were improper. The contentions of the appellant will be combined where appropriate for purposes of discussion.
The principal ground for relief asserted by the appellant before this Court concerns the 20 prospective jurors and the petit jury drawn from those prospective jurors. It is undisputed that many prospective jurors were personally acquainted with the appellees and their witnesses. That connection between the prospective jurors and the appellees was based upon the fact that appellee, E. L. Fisher, was born in Braxton County and practiced medicine in that county in excess of 40 years. During the voir dire examination, testimony was elicited, for example, to the effect that Dr. Fisher treated the parents of one prospective juror, delivered another prospective juror at birth and delivered the children of a third prospective juror.
At the beginning of the trial of this action, a general voir dire examination was conducted in open court. Thereafter, an individual voir dire examination was conducted in chambers. The appellant's motion to dismiss all 20 prospective jurors for cause and the appellant's motion for a change of venue were denied.
As indicated by the statements of the prospective jurors made in open court and in chambers, nine prospective jurors were acquainted with the appellees. Ten of the prospective jurors, including six of those who knew the appellees, were acquainted with one or the other of the appellees' appraisal witnesses, Harry Kyer and Wallace Hefner. An analysis of all prospective jurors reveals that 13 prospective jurors out of 20 knew the appellees and/or certain witnesses for the appellees. See n. 3, infra. Furthermore, another appraisal witness for the appellees, Jack Butler, was not called to testify during the trial. Four of the prospective jurors, including those who were acquainted with the appellees or Harry Kyer or Wallace Hefner, were acquainted with Mr. Butler. 3
Subsequent to the voir dire examinations, the petit jury was selected. Six members of the jury were acquainted with the appellees and/or Mr. Kyer or Mr. Hefner. Another juror was acquainted with...
To continue reading
Request your trial
-
Doe v. Wal-Mart Stores, Inc.
...a particular cause may not be sufficient for the trial court to conclude that no such bias exists." West Virginia Dep't. of Highways v. Fisher, 170 W.Va. 7, 11, 289 S.E.2d 213, 218 (1982). We believe that the fact that the juror owned stock in Wal-Mart and that her husband was employed by W......
-
White v. Lock
...under the instructions of the court.' Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974)." Syl. pt. 1, W.Va. Dept. of Highways v. Fisher, 289 S.E.2d 213, cert. den. 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 Here, the appellants sought disqualification of a juror on the sol......
-
State v. Newcomb
...strikes, free of the taint of reasonably suspected prejudice or bias." Id. at 288, 565 S.E.2d at 410. In W.Va. Dep't of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982), this Court addressed the methodology to be utilized by a trial court in determining whether removal is necessary, e......
-
Poet v. Traverse City Osteopathic Hosp.
...for cause to a juror whose husband sold a particular type of baler which allegedly injured the plaintiff); West Virginia Dep't of Hwys. v. Fisher, 289 S.E.2d 213 (W.Va.1982) (physician-patient privilege existed between a party and a prospective juror; although not disqualification per se, t......