Wheeler v. Murphy

• Decision Date: 08 December 1994
• Docket Number: No. 22140,22140
• Citation: 452 S.E.2d 416,192 W.Va. 325
• Court: West Virginia Supreme Court
• Parties: Joanna Porter WHEELER, Individually, and as Administratrix, D.B.N. for the Estate of Paul David Porter, Plaintiff below/Appellant v. Joseph MURPHY, Defendant below/Appellee.

Page 416

452 S.E.2d 416

192 W.Va. 325

Joanna Porter WHEELER, Individually, and as Administratrix D.B.N. for the Estate of Paul David Porter Plaintiff below/Appellant v. Joseph MURPHY, Defendant below/Appellee.

No. 22140.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 5, 1994.

Decided Dec. 8, 1994.

Syllabus by the Court

1. " 'The true test to be applied with regard to qualifications of a juror is whether a juror can, without bias or prejudice, return a verdict based on the evidence and the court's instructions and disregard any prior opinions he may have had.' State v. Charlot, 157 W.Va. 994, 1000, 206 S.E.2d 908, 912 (1974)." Syl. pt. 1, State v. Harshbarger, 170 W.Va. 401, 294 S.E.2d 254 (1982).

2. Proof of insured status offered on rebuttal as a financial asset that should be considered by the jury in awarding punitive damages does not violate Rule 411, WVRE [1994].

3. A plaintiff should be given the opportunity for pure rebuttal as a matter of right when the rebuttal evidence consists of non-collateral evidence that is made material and relevant only because of the defense case.

4. If a defendant does not offer evidence of his financial status or imply poverty, then neither may the plaintiff offer evidence of the defendant's insurance coverage either in the plaintiff's case in chief or on rebuttal. However, once the defendant offers evidence of his financial status to influence the jury on punitive damages, then the plaintiff may rebut such evidence by introducing proof of the defendant's liability insurance.

5. " 'An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.' [Citations omitted.]" Syllabus Point 6, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).

B. Karleton Kesner and Anita R. Casey, Meyer, Darragh, Buckler, Bebenek & Eck, Charleston, for appellant.

Daniel R. Schuda and Luci R. Wellborn, Steptoe & Johnson, Charleston, for appellee.

NEELY, Justice:

Joanna Porter Wheeler, individually and as Administratrix, D.B.N. for the Estate of Paul David Porter, appeals from the 31 December 1992 Order by the Circuit Court of Kanawha County enforcing the jury verdict returned in favor of the Appellee, Joseph Murphy. The complaint asserts that on 13 April 1989, Mr. Murphy, while a passenger in a car driven by J.C. Cottrill, substantially assisted or encouraged Mr. Cottrill's intoxication, and that Mr. Cottrill's intoxication was the proximate cause of the automobile accident killing himself, and Mr. Porter, the driver of the other vehicle, and seriously injuring Ms. Wheeler, a passenger and the owner of the vehicle driven by Mr. Porter. Mr. Cottrill and Mr. Murphy were together on the day of the accident from about 2:30 or 3:30 p.m. until the accident occurred at 9:39 p.m. The evidence reflects that although Mr. Murphy was passed out in the back seat of the vehicle at the time the accident occurred, these two friends and co-workers had been drinking together throughout the course of that afternoon and evening.

I.

The course of events on the day of the accident was as follows: At approximately 9:39 p.m. on 13 April 1989, a 1986 Chevrolet "IROC" Camaro, driven by its owner, J.C. Cottrill, crossed into the left lane of Pinch Road in Kanawha County, West Virginia colliding with a 1980 Buick Rivera driven by Paul David Porter. Both Mr. Porter and Mr. Cottrill were killed as a result of the collision. Joanna Porter Wheeler, the owner of the vehicle driven by Mr. Porter, was a passenger at the time of the accident and suffered extensive injuries. An autopsy report revealed that Mr. Cottrill's blood alcohol level was 0.28 at the time the accident occurred.

Joseph Murphy was a passenger in Mr. Cottrill's vehicle when the accident occurred. Mr. Murphy and Mr. Cottrill had been together from approximately 2:30 to 3:30 p.m. that day, until the accident occurred at 9:39 p.m. Mr. Murphy and Mr. Cottrill worked together that day at Krogers and got off of work within an hour of each other. Mr. Cottrill picked Mr. Murphy up at work immediately following the end of Mr. Murphy's shift. Mr. Murphy testified that he did not see Mr. Cottrill consume any alcohol at work on the day of the accident.

After leaving work, Mr. Cottrill and Mr. Murphy went by the bank, and then drove to Coonskin Park in Kanawha County where they were joined by Tracy Woods and Jennifer Summers. Ms. Woods and Ms. Summers rode with both men to Mr. Murphy's trailer in the vehicle driven by Mr. Cottrill. Both women testified that during the ride to Mr. Murphy's trailer, the men had a glass bottle containing a dark liquor that Ms. Woods thought to be "Wild Turkey." The women also testified that the bottle was passed from Mr. Murphy to Mr. Cottrill upon demand. ¹

Ms. Summers testified that Mr. Murphy served beer to everyone at his trailer, other than herself and Ms. Woods, including Mr. Cottrill. Ms. Woods and Ms. Summers recalled that wine was also served to everyone at Mr. Murphy's residence. The entire group spent approximately one hour at Mr. Murphy's trailer before returning to Coonskin Park. The women observed that Mr. Murphy and Mr. Cottrill continued to share alcohol during their drive back to the park. Ms. Woods and Ms. Summers left Mr. Murphy and Mr. Cottrill after spending some more time at Coonskin Park. When the women left the park, both observed that Mr. Cottrill was very drunk. In view of Mr. Cottrill's condition, Ms. Summers asked a stranger in the park to drive her the short distance to Ms. Woods' car, rather than risk riding with Mr. Cottrill.

After the women left, Mr. Cottrill drove Mr. Murphy to Terry Miller's house located near Pinch, West Virginia. When they arrived at Mr. Miller's house, Mr. Murphy had passed out in the back seat of the vehicle. Joseph Stowers and Carlotta Spangler observed Mr. Cottrill at Mr. Miller's house and testified that while Mr. Cottrill was at Mr. Miller's home he did not act intoxicated. However, Ms. Spangler did say that it looked like there was something wrong with Mr. Cottrill. Ms. Spangler further observed that Mr. Cottrill entered the house carrying a bottle of Jim Beam from which he took one drink. Mr. Cottrill did not take the bottle with him when he left Mr. Miller's house.

Mr. Stowers left the Miller residence with Mr. Cottrill and the unconscious Mr. Murphy, and was a passenger in the vehicle at the time of the accident. Mr. Stowers testified that Mr. Cottrill did not act visibly drunk, however he was driving in a highly erratic manner. Mr. Stowers stated that when Mr. Cottrill approached Route 114, he "shot out in the road" in front of a truck, and "cut a donut around the telephone pole in the funeral home parking lot and took off up the road." The accident occurred shortly thereafter.

Mr. Murphy's memory of the events leading up to the accident were hazy. He recalled one cup of an unidentified alcoholic substance being present in the vehicle. He did not remember serving his guests alcohol. However, he did admit that he became ill at Coonskin Park, and that he was drunk on the night of the accident. Although he could not say whether he passed alcohol to Mr. Cottrill while they were in the car together on this occasion, he did state that it was possible that he had done so. Furthermore, he admitted that he and Mr. Cottrill had on previous occasions, including the night before the accident, shared alcoholic beverages while driving.

II.

Mrs. Wheeler asserts that two errors occurred during jury selection. First, that the lower court erroneously excused juror Ronald Perry, upon the court's own motion, without inquiring whether he was unable to be an impartial juror. The circuit court excused Mr. Perry after he revealed that he had campaigned for one of the local magistrates.

As previously set forth by this Court, " 'The true test to be applied with regard to qualifications of a juror is whether a juror can, without bias or prejudice, return a verdict based on the evidence and the court's instructions and disregard any prior opinions he may have had.' State v. Charlot, 157 W.Va. 994, 1000, 206 S.E.2d 908, 912 (1974)." Syl. pt. 1, State v. Harshbarger, 170 W.Va. 401, 294 S.E.2d 254 (1982). However, Mrs. Wheeler's counsel raised no objection to the court's decision to excuse Mr. Perry until after the verdict was rendered. ²

Generally, a party seeking a new trial based on an irregularity is estopped from raising the issue unless the record reflects that the irregularity was called to the court's attention "as soon as it was first discovered or as soon thereafter as the cause of the proceeding would permit." McGlone v. Superior Trucking Co., Inc., 178 W.Va. 659, 668, 363 S.E.2d 736, 745 (1987). Furthermore, West Virginia Code 56-6-16 [1923] provides that:

No irregularity in any writ of the venire facias, or in the drawing, summoning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless objection specifically pointing out such irregularity was made before the swearing of the jury, or unless the party making the objection was injured by the irregularity.

[Emphasis added.] See McGlone, supra (holding that a verdict will not be set aside for any irregularity in impaneling a jury unless there is a proper objection before the swearing of the jury or unless it is shown that the party making the objection was injured). Mrs. Wheeler failed to make a timely objection. Thus, she is estopped from raising this issue as a ground for reversal.

Mrs. Wheeler also alleges that the lower court erred in refusing to grant the her motion to strike juror Robert Rife for cause. We disagree. Mr. Rife's son had been seriously injured in an automobile accident while driving under the influence of alcohol. There were no passengers involved. The appellant makes no claim that Juror Rife's presence compromised the impartiality of the jury. Instead, Mrs. Wheeler...