West Virginia Human Rights Commission v. Tenpin Lounge, Inc.

• Decision Date: 21 January 1975
• Docket Number: No. 13386,13386
• Citation: 211 S.E.2d 349,158 W.Va. 349
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA HUMAN RIGHTS COMMISSION v. TENPIN LOUNGE, INC., et al.

Page 349

211 S.E.2d 349

158 W.Va. 349

WEST VIRGINIA HUMAN RIGHTS COMMISSION v. TENPIN LOUNGE, INC., et al.

No. 13386.

Supreme Court of Appeals of West Virginia.

Jan. 21, 1975.

Syllabus by the Court

1. Since equitable issues are generally determined by a court without a jury, one is not entitled, as a matter of right under the law, to a jury trial of such issues; however, there is no constitutional right to a trial without a jury and the submission of equitable issues to a jury does not constitute reversible error.

2. Upon an allegation before a trial court that a juror falsely answered a Material question on Voir dire, and where a request is made for a hearing to determine the truth or falsity of such allegation it is reversible error for the trial court to refuse such hearing.

3. If it be determined that a juror falsely answered a question on Voir dire examination, whether or not a new trial should be awarded is within the sound discretion of the trial court.

A. Andrew MacQueen, III, Asst. Atty. Gen., Charleston, for appellant.

No appearance for appellee.

CAPLAN, Justice:

This is an appeal from an action instituted in the Circuit Court of Monongalia County pursuant to the provisions of The West Virginia Human Rights Act. W.Va. Code, 1931, 5--11--1 et seq., as amended. Therein, the West Virginia Human Rights Commission, hereinafter sometimes called Commission, sought to enforce specific performance of a conciliation agreement entered into between it and the Tenpin Lounge, Inc., by Patrick Rundle, its president. Upon the return of an adverse jury verdict and the entry of a judgment thereon, the Commission filed and served a motion for judgment notwithstanding the verdict and in the alternative a motion for a new trial in accordance with Rule 59 of the West Virginia Rules of Civil Procedure. Upon the denial of such motions the Commission prosecuted this appeal.

The West Virginia Human Rights Act was enacted by the Legislature in 1967. This act, reflecting the public policy of the State of West Virginia in the field of human relations, is designed to prohibit discrimination in employment, in housing accommodations and places of public accommodations by reason of race, religion, color, national origin, ancestry, sex or age.

The action by the Commission in the instant case involves a charge that the defendant, Tenpin Lounge refused membership to certain persons because of their race. The Tenpin Lounge is a state licensed private liquor club located in Morgantown. Complaint was made against said club and its president charging that early in 1969 two Negro residents of Morgantown were refused membership in the Tenpin Lounge because of their race. This resulted in an investigation by the Commission which thereafter made a determination that probable cause existed to substantiate the charges. in accordance with procedures of the Commission, representatives of the Tenpin Lounge were contacted and it was determined that the matter could be resolved without any administrative hearing.

After some negotiations between the Tenpin Lounge and the Commission a conciliation agreement was executed on October 23, 1969. By the terms of this agreement the Tenpin Lounge adopted a policy of nondiscrimination with regard to admission to membership and service. By the admission of the complainants to membership and execution of the aforesaid agreement the matter was closed as satisfactorily adjusted.

Approximately one year later the Commission received complaints from two other Negro residents of Morgantown charging that the Tenpin Lounge had denied them service and admission to membership because of their race. Again an investigation was undertaken by the Commission and as a result thereof it was determined that the charges were substantiated. The conciliation agreement referred to above is expressly authorized under the provisions of W.Va. Code, 1931, 5--11--8(d)(4), as amended. The Commission, on December 16, 1970, instituted an action in the Circuit Court of Monongalia County alleging that the Tenpin Lounge had violated the provisions of said conciliation agreement and sought specific performance thereof. This was done under the express provisions of W.Va. Code, 1931, 5--11--8(d)(5), as amended. In its answer to the complaint the Tenpin Lounge and Patrick Rundle, its president, denied the material allegations of the complaint and demanded a jury trial. Prior to the trial the Commission, under the provisions of Rule 39(a)(2), R.C.P., filed a motion to disallow a jury in the trial of this matter. The motion was argued and denied by the court.

On May 21, 1971 a jury was selected and the trial began. Two questions were submitted to the jury as follows:

1. Has the Tenpin Lounge denied or refused its facilities,

privileges, or services to any person after October 23,

1969, solely on the basis that he or she was of the

Negro race?

_____ _____

Yes No

2. On October 5, 1970, was Philip Mack refused or denied

the facilities, privileges, or services of the Tenpin

Lounge solely because he was not an orderly and

respectable person?

_____ _____

Yes No

The first question was answered in the negative and the second in the affirmative. No instructions were submitted to the jury by the court. Counsel for the Commission, immediately upon return of the verdict, advised the court that he had information which indicated that three jurors on the trial panel had committed perjury in responding to Voir dire questioning prior to the selection of the jury. Counsel represented to the court that there was a possibility that two jurors, contrary to their affirmations, were affiliated with an organization which discriminated against Negroes in its membership policy and that one juror, contrary to his affirmation, was, in fact, a member of the Tenpin Lounge. Counsel then moved the court to make inquiry to determine the truth of these possibilities and, if true, to declare a mistrial. This motion was summarily denied by the court.

On November 15, 1971 final judgment was entered in accordance with the jury verdict and the action for specific performance was dismissed. Within ten days the Commission filed and served its Motion For Judgment Notwithstanding Verdict and In the Alternative For New Trial. This was filed under the provisions of Rule 59, R.C.P.

The two main grounds assigned by the Commission in support of its motion were: (1) the defendant was not entitled to a trial by jury, and, (2) certain jurors falsely swore under oath during Voir dire examination regarding memberships in organizations, fraternities and clubs which discriminate against members of the Negro race. Upon the hearing of that motion counsel for the Commission advised the court that certain jurors had been summoned to testify. The court refused to hear such jurors and after considerable discussion denied the motion. It is from the order denying said motion that this appeal was prosecuted.

The principal errors assigned are that (1) the court erred in allowing a jury trial; (2) the court erred in refusing to permit the Commission to interrogate certain trial jurors to determine the truth or falsity of their statements during the Voir dire examination.

'The right of trial by jury as declared by the Constitution or statutes of the State shall be preserved to the parties inviolate.' Rule 38, R.C.P. Rule 39(a), R.C.P. provides that when a trial by jury has been demanded the action shall be designated on the docket as a jury action and shall be tried by a jury unless '(2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the State.' Thus, it is established that if the court finds that a right of trial by jury does not exist under the constitution or statutes of the state, a jury trial may be denied.

It has been held generally that one is not entitled to a jury trial of equitable issues. That an action for specific performance is equitable was forcefully demonstrated by the court in Klein v. Shell Oil Company, 386 F.2d 659 (8 Cir., 1967), as follows: 'The authorities are unanimous in holding that the remedy of specific performance is purely equitable in nature . . . Traditionally, there has been no right to a trial by jury in an action for specific performance presenting issues which are purely equitable . . .' See 5 Moore's Federal Practice, § 38.21 (2nd ed. 1974); 9 Wright and Miller, Federal Practice and Procedure, Civil, section 2308.

The instant case presents issues in equity in that its main objective is to enforce specific performance of the conciliation agreement. As indicated by the questions submitted to the jury, however, there are also questions of fact to be determined. In view of the above discussion it is clear that the defendant is not entitled, as a matter of right, to a jury trial of the equitable issues. This does not, however, preclude that court, in its discretion, from acceding to the demand of the defendant to hold a jury trial. Here, the defendant demanded a jury trial; here, it appears that a showing was made under Rule 39(a)(2), R.C.P. that the right to a jury trial did not exist; here, the court permitted a trial by jury. We are of the opinion that the court was permitted to exercise discretion under Rule 39(a)(2), R.C.P. and that he did not abuse his discretion in allowing a jury trial. See Wright & Miller, Federal Practice and Procedure: Civil § 2334.

This matter may be summed up by the following quote from 2B Barron and Holtzoff, Federal Practice and Procedure, § 873, p. 32 (Rules...