Bennett v. Walton

294 S.E.2d 85, 170 W. Va. 283, 1982 W. Va. LEXIS 814
CourtWest Virginia Supreme Court
DecidedJune 25, 1982
Docket15092
StatusPublished
Cited by3 cases

This text of 294 S.E.2d 85 (Bennett v. Walton) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. Walton, 294 S.E.2d 85, 170 W. Va. 283, 1982 W. Va. LEXIS 814 (W. Va. 1982).

Opinion

PER CURIAM:

Appellants, Irene C. Bennett and Virgil A. Bennett, appeal from a final order of the Circuit Court of Marshall County denying their motion for a new trial and affirming a jury verdict in favor of the appellees, defendants below, Ronald Joseph Walton and Shelly & Sands, Inc. Appellants propound ten assignments of error in this appeal. Several of these relate to matters admittedly within the discretion of the trial judge and, finding no merit in them, we do not believe they warrant extended discussion. Neither do we find appellants’ main assignments of error persuasive, and accordingly, we affirm.

The facts which gave rise to this matter may be briefly stated. On April 26, 1976, Irene Bennett was travelling north on West Virginia Route 2 near Moundsville, West Virginia, when she collided with a tanker truck operated by appellee Ronald Joseph Walton for Shelly & Sands, Inc. The point of impact of the vehicles and their position at the time of the accident were subjects of dispute at trial.

Appellants complain of the admission of certain evidence at trial. They contend that expert witness John Purcupile relied upon calculations in forming his opinion as to the point of impact which were outside the scope of the hypothetical question put to him, and that he used a model of the scene of the accident for demonstrative purposes, which model was not constructed to scale. Appellants also complain of the admission of certain testimony of Officers J. G. Watson and Samuel Michael Pinion, who originally investigated the accident. Appellants also assert that the trial court erred in refusing plaintiff’s instruction no. 8, regarding the agency relationship between Walton and his employer, Shelly & Sands, Inc., and in giving defendant’s instructions regarding contributory negligence, nos. 12-14. We address these assignments in order.

John Purcupile, a professor of mechanical engineering, was retained by the defense in 1979, in his capacity as a member of the consulting firm Purcupile & Associates, to conduct an extensive investí- *286 gation of the accident. Purcupile conducted aerial and ground inspections of the accident site, examinations of the tanker truck and of Mrs. Bennett’s automobile, and research of the reports of the investigating officers. Purcupile computed mathematical calculations based on the findings from these various inspections and reports. As we stated in Syllabus point 7 of Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975) and Syllabus point 7, Kerr v. Lunsford, 31 W.Va. 659, 8 S.E. 493 (1888):

“In putting hypothetical questions to expert witnesses counsel may assume the facts in accordance with their theory of them; it is not essential that they should state them as they exist; but the hypothesis should be based on a state of facts, which the evidence in the cause tends to prove.”

There was nothing improper in using these calculations to help form the opinion expressed in response to the hypothetical question asked by counsel for appellees.

During direct examination Purcupile used a model of the accident scene which he had prepared to demonstrate his version of the accident. Immediately following direct examination of Purcupile, before trial was adjourned for the evening, plaintiffs counsel conducted considerable cross-examination. When trial was resumed the following morning, plaintiffs cross-examination of Purcupile continued. This examination was lengthy and exhaustive. At the conclusion of cross-examination, the court took a recess, counsel for the appellees announced that he had no re-direct examination for Purcupile. Counsel for appellant requested that the court allow him to reopen cross-examination in view of an alleged discrepancy in the measurements of the model used for demonstrative purposes by the witness. The trial judge pointed out that the model had been available for inspection by plaintiffs counsel during the previous evening recess, and that the model was not in evidence, and was used only for demonstrative purposes by the witness. The trial judge refused to permit further cross-examination. We do not believe the trial court abused its discretion in so ruling. Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975) (Syllabus point 18).

Appellants complain of the use of allegedly inaccurate police reports by Officers Watson and Pinion and of the admission into evidence of the opinions of these officers as to the orientation of the vehicles involved in the crash at the time of impact. Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), dealt with a situation very similar to this aspect of the case before us. In that case an investigating police officer was permitted to testify “regarding the location of the accident occurrence and the impact points between the two vehicles involved in the collision ... although the police official was not an eye witness to the occurrence.” 158 W.Va. at 32, 210 S.E.2d at 624. We set forth the rule governing the situation in Syllabus point 5:

“Whether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court and its ruling will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.” Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

After reviewing the qualifications of the police officer and the foundation of his conclusions, the court in Jordan concluded that the opinion offered was, under the circumstances, “unobjectionable, relevant, and competent.” 158 W.Va. at 40, 210 S.E.2d at 628. We find this to be a fair characterization of the evidence offered by Officers Watson and Pinion in the trial below.

Instruction no. 8 offered by the appellants sought to define the effect of the agency relationship existing between Walton, the truck driver, and Shelly & Sands, Inc., his employer, on the responsibility of these parties for damages in the event of an award. We express no opinion as to the propriety of the instruction offered, but merely point out that the refusal of the instruction was, at most, harmless error in view of the fact that the jury here found no negligence on the part of either defendant Walton or Shelly & Sands, Inc. Defendant’s instructions nos. 12 and 13 were objected to by the appellants, but the objections interposed were not specific objections. As we stated in syllabus point 4 *287 of Fortner v. Napier, 153 W.Va. 143, 168 S.E.2d 737 (1969) “[t]he stringent requirements of Rule 51, R.C.P., i.e., stating ‘distinctly’ the ground of objection to an instruction, is not met by a general objection.”

Admission of certain photographs taken by defense witnesses is assigned as error. These photographs depict the accident scene and the vehicles involved. As we stated in Syllabus point 2 of State v. Dunn, 162 W.Va.

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Related

State v. Deskins
380 S.E.2d 676 (West Virginia Supreme Court, 1989)
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296 S.E.2d 37 (West Virginia Supreme Court, 1982)

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Bluebook (online)
294 S.E.2d 85, 170 W. Va. 283, 1982 W. Va. LEXIS 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-walton-wva-1982.