Wimer v. Hinkle, 18258

• Decision Date: 13 March 1989
• Docket Number: No. 18258,18258
• Citation: 180 W.Va. 660,379 S.E.2d 383
• Court: West Virginia Supreme Court
• Parties: Patricia WIMER, Administratrix of the Estate of Timothy Wimer v. Stephen Clark HINKLE and Patsy Hinkle.

Page 383

379 S.E.2d 383

180 W.Va. 660

Patricia WIMER, Administratrix of the Estate of Timothy Wimer v. Stephen Clark HINKLE and Patsy Hinkle.

No. 18258.

Supreme Court of Appeals of West Virginia.

March 13, 1989.

Syllabus by the Court

1. An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence.

2. "To summarize the basic operation of the Deadman's Act, W.Va.Code, 57-3-1, a concurrence of three general conditions must be met in order to bar the witness's testimony. First, the testimony must relate to a personal transaction with a deceased or insane person. Second, the witness must be a party to the suit or interested in its event or outcome. Third, the testimony must be against the deceased's personal representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988).

3. The test as to whether a witness is an interested party within the meaning of W.Va.Code, 57-3-1, is not whether he or she may be interested in the question in issue, or may entertain wishes on the subject, or may even have occasion to test the same question in a future suit, but whether the proceeding can be used for evidence in some pending or future suit. Such person must have an interest to be affected by the result of the suit or by the force of the adjudication. This was the common law rule, which still prevails in this state.

4. The clear import of the 1937 amendment to W.Va.Code, 57-3-1, is to allow testimony by a defendant or the defendant's servant or employee relating to facts surrounding the wrongful death claim, except "evidence of any conversations with the deceased." This provision has altered the cases of Strode v. Dyer, 115 W.Va. 733, 177 S.E. 878 (1934), and Willhide v. Biggs, 118 W.Va. 160, 188 S.E. 876 (1936).

5. W.Va.Code, 57-3-1, does not preclude a passenger in a defendant driver's vehicle from testifying as to the movements of the plaintiff's decedent's vehicle prior to and at the time of the accident, even though the passenger may have a claim for injuries against the estate of the plaintiff's decedent arising from the accident.

Jerry D. Moore, Franklin, for Patricia Wimer.

George I. Sponaugle, II, Franklin, Oscar M. Bean, Bean & Bean, Moorefield, for Stephen & Patsy Hinkle.

MILLER, Justice:

The single issue raised on this appeal is whether the Deadman's Act, W.Va.Code, 57-3-1, should have barred testimony of a guest passenger in a truck which struck the automobile of the plaintiff's decedent.

The decedent, Timothy Wimer, was driving a 1980 Datsun automobile in a southerly direction on State Route 28 in Pendleton County. The defendant, Stephen Hinkle, was driving in the opposite direction. His pick-up truck struck the Wimer vehicle, killing Timothy Wimer. At trial, the plaintiff introduced evidence to show that the Hinkle truck had crossed into the Wimer lane of traffic causing the collision.

Prior to trial, the plaintiff moved in limine to bar the testimony of the passenger in the truck, Rebecca Davis, under the Deadman's Act. This motion was denied, and the jury was permitted to hear Ms. Davis's testimony, which was quite damaging to the plaintiff's case. It should be noted that Ms. Davis was the only eyewitness to the accident. The driver of the truck, Mr. Hinkle, had no recollection of the details of the accident.

Ms. Davis testified that as Mr. Wimer came over the crest of a hill, he swerved his vehicle into Mr. Hinkle's lane of traffic, and immediately returned to his lane of traffic. She further testified that just as Mr. Wimer was returning to his own lane of traffic, Mr. Hinkle swerved his vehicle into Mr. Wimer's lane of traffic and the vehicles collided. Her testimony suggested that Mr. Wimer had created a sudden emergency and that Mr. Hinkle had reacted by crossing the centerline.

Ms. Davis also indicated that she was the girlfriend of the defendant, Mr. Hinkle. She also testified that she had a claim for personal injuries against the Wimer estate and that she had previously collected a sum of money for damages from Mr. Hinkle. The plaintiff had informed the trial court of Ms. Davis's claim against Mr. Wimer when the motion in limine was argued on the day of trial.

I.

Initially, the defendant, Mr. Hinkle, argues that the evidentiary issue concerning the Deadman's Act was waived because no objection was made at trial to Ms. Davis's testimony. The matter had been raised by way of motion in limine which the court decided on the day of trial. The record reflects that there was a full discussion of this issue with the trial court. Relevant law was cited, and there was a description of the interest held by the potential witness, Ms. Davis, which was her potential claim for monetary damages against the plaintiff's decedent's estate. ¹

It was the court's view that since Ms. Davis was not a party to the present litigation, she had no interest. Consequently, there was no impediment to her testifying. After making this ruling, plaintiff's counsel asked that his "exceptions to the rulings of the court" be noted. The court responded: "It would be so noted." There was no renewal of the objection at the time Ms. Davis testified. Consequently, the defendant urges that this point is waived. We do not agree.

We have in our earlier cases recognized the practice of filing motions in limine as a means of acquainting the trial court with specific evidentiary issues that may occur at trial. See Smith v. Holloway Constr. Co., 169 W.Va. 722, 289 S.E.2d 230 (1982); State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980). Such a procedure enables the trial court judge to become acquainted with potentially troublesome issues prior to trial. It permits more of an opportunity to study and reflect on the issue than if it were first raised during the trial. ² This practice is specifically encouraged under Rule 103(c) of the West Virginia Rules of Evidence. ³

We spoke to this issue in Smith. There, no objection was made to the court's initial ruling in limine which granted the defendant's request to preclude the plaintiffs in a blasting case from testifying about damages caused to other buildings. We concluded that the failure to make an objection at the time the ruling was made foreclosed our addressing the issue on appeal.

In State v. Clark, 170 W.Va. 224, 292 S.E.2d 643 (1982), defense counsel had, just prior to the beginning of trial, objected to several prosecution photographs on the ground that they were inflammatory. No ruling was made, and the objection was renewed at trial and argued in chambers, but the judge again made no ruling. When the photographs were introduced at trial, the defense made no objection. We concluded that the defendant had failed to preserve the point.

We believe that this case differs from both Smith and Clark. Here, the motion was considered by the trial court after the jury had been empaneled and before any evidence was taken. A full explanation of the motion was given to the trial judge with legal authorities, and, after due consideration, he made the ruling permitting the testimony of Ms. Davis. The plaintiff objected.

The fundamental purpose of an objection to evidence is to bring to the court's attention potentially inadmissible evidence so that the court may make a ruling on the question. A corollary principle is that ordinarily a party may not claim evidentiary error on appeal where no objection is made at the trial level. ⁴ This is designed to prevent a party from obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the objection and thereby correct potential error.

When tested by these standards, we believe the trial court was given a fair opportunity to consider this matter, and there was a sufficient objection to preserve the point. ⁵ The Colorado Supreme Court en banc has considered this question at some length in Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo.1986). After noting that there was a split of authority, ⁶ the Colorado court concluded that an objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered. A different result may be warranted where there is a significant change in the basis for admitting the evidence. When this occurs, a further objection may be required. Here, there was no change in the basis for admitting the evidence from the time the in limine ruling was made until the evidence was introduced at trial. Therefore, the plaintiff's objection to the in limine ruling preserved the point.

II.

We turn now to the substantive issue regarding the competency of Ms. Davis to testify under the Deadman's Act. We recently discussed this statute at some length in Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988). In Moore, we pointed out that the Act established three conditions that must be met in order to bar testimony, as outlined in Syllabus Point 10:

"To summarize the basic operation of the Deadman's Act, W.Va.Code, 57-3-1, a concurrence of three general conditions must be met in order to bar the witness's testimony. First, the testimony must relate to a personal transaction with a deceased or insane person. Second, the witness must be a party to the suit or interested in its event or outcome. Third, the testimony must be against the deceased's personal representative, heir at law, or beneficiaries or the assignee or committee of an insane person."

In considering these conditions, the parties do not appear to dispute that the movement of the deceased's vehicle at the time of the accident was a "personal transaction." This was based on our prior cases of Strode v. Dyer, 115 W.Va. 733, 177...