Home / Fulltext Opinions / Supreme Court of Virginia / MOTLEY v. TARMAC AMERICA, INC.





June 11, 1999

Record No. 982081





Melvin R. Hughes, Jr., Judge

Present: All the Justices


Code Sect. 8.01-375, states in relevant part:

"The court trying any civil case may upon its own
motion and shall upon the motion of any party, require
the exclusion of every witness. However, each named party
who is an individual, one officer or agent of each party
which is a corporation or association . . .
shall be exempt from the rule of this section as a matter
of right."

In this appeal, we consider whether the circuit court erred in
denying the plaintiff’s post-trial motion for a new trial because
the corporate defendant designated as its agent, for purposes of
Code Sect. 8.01-375, its former employee, whose negligent
acts and omissions were at issue in this litigation, thus
permitting the former employee to observe the trial even though
the circuit court had excluded the witnesses.

Plaintiff, Lucille B. Motley, filed her motion for judgment
against James N. Mobley, Tarmac Mid-Atlantic, Inc., and Tarmac
America, Inc. She alleged that Mobley, while acting within the
scope of his employment, negligently operated a truck, and that
his negligence was a proximate cause of her injuries. The
plaintiff nonsuited Mobley and Tarmac Mid-Atlantic, Inc., and the
case was tried before a jury against Tarmac America, Inc.

After the jury had been empanelled, defendant’s counsel
stated: "Mr. Mobley is going to be my corporate designee.
I’d make a motion to separate the witnesses
. . . ." The circuit court granted the
motion. Counsel for the litigants made their opening statements
and presented evidence.

According to the plaintiff’s evidence, the plaintiff was
driving a car in a westerly direction on Broad Street in Richmond
on February 22, 1996, about 10:45 a.m. This portion of Broad
Street consists of four lanes of travel, two lanes extending in
an easterly direction and two lanes extending in a westerly

The plaintiff testified that as she was driving her car, a
white vehicle "whipped over in front" of her, and she
swerved her car to the left to avoid it. The plaintiff, who was
driving approximately 25 m.p.h., lost control of her car and
traveled across the two lanes of eastbound traffic, "slammed
into a wall," "bounced back onto the street," and
injured a pedestrian.

The plaintiff was unable to identify the white vehicle that
entered her lane of travel. However, Thomas G. Aukward testified
that as he was driving his car on Broad Street, he observed in
his rearview mirror a white truck, similar to the truck that
Mobley was driving, approach his car "fairly quick."
Aukward "braced himself," thinking that the white truck
was going to collide with his car. As Aukward looked into his
mirror a second time, the white truck "was gone," and
as he was "trying to figure out where the vehicle
went," he saw Motley’s car "skidding" across the
traffic lanes.

Deborah K. Matthews, another witness, testified there was no
doubt in her mind that the truck that Mobley was driving was the
truck that entered the plaintiff’s lane of travel. Floyd Marable,
who also saw the accident, testified that the truck Mobley was
operating was the only white truck in the area when the accident
occurred. Marable stated that he observed the truck move into the
plaintiff’s lane of travel, and that the operator of the truck
did not give a turn signal when the truck changed lanes. Charles
B. Howard, a Richmond police officer, testified that Mobley
stated at the scene of the accident that he had been operating
his truck in the left westbound lane.

Mobley, who was present during the entire trial, testified
that his truck was not involved in the accident and he operated
his truck in the "right lane all the time," and that
Officer Howard’s conflicting testimony was not true. At the
conclusion of the evidence, the jury was instructed and returned
a verdict in favor of the defendant.

After the circuit court had entered a judgment on the verdict,
but before the court lost jurisdiction, the plaintiff learned
that the defendant had terminated Mobley’s employment before the
trial, but the defendant failed to inform the plaintiff of this
fact. The plaintiff filed a motion for a new trial and asked that
the court vacate its judgment order because Mobley was not the
defendant’s employee and, therefore, he should not have been
allowed to remain in the courtroom to observe the testimony of
other witnesses.

Counsel for the litigants filed memoranda in support of their
respective positions, and the circuit court considered argument
of counsel. During the argument, defendant’s counsel stated:
"At the time of trial [Mobley] was not an employee and the
facts are that the plaintiff nonsuited him and that I said on the
record that he was going to be the corporate designee." The
circuit court denied plaintiff’s motion and entered a judgment in
favor of the defendant. Plaintiff appeals.

The plaintiff argues that she is entitled to a new trial
because Mobley was not an agent of the defendant within the
intendment of Code Sect. 8.01-375 and, therefore, he was not
entitled to remain in the courtroom once the circuit court
ordered the exclusion of witnesses. The defendant responds that
Code Sect. 8.01-375 permits it to appoint any person
as an "agent of . . . a corporation" and,
thus, Mobley was exempt from the statutory exclusion. We disagree
with the defendant.

Code Sect. 8.01-375 requires a circuit court trying any
civil case, upon motion of any party, to exclude every witness.
The statute, however, contains an exception for each named party
who is an individual or "one officer or agent of each party
which is a corporation." Code Sect. 8.01-375. The
purpose of this statute is to discourage and expose fabrication
and collusion by witnesses and to minimize the likelihood that
witnesses will alter their testimony so that such testimony is
consistent with testimony provided by other witnesses. See,
e.g., United Dentists, Inc. v. Commonwealth,
162 Va. 347, 352, 173 S.E. 508, 509 (1934). This statute is
important to the administration of justice because the exclusion
of witnesses will often assist the finder of fact in its quest to
ascertain the truth. And, as Professor Wigmore observed, the
sequestration of witnesses "is (next to cross-examination)
one of the greatest engines that the skill of man has ever
invented for the detection of liars in a court of justice."
6 John H. Wigmore, Wigmore on Evidence
Sect. 1838 at 463 (James H. Chadbourn ed. 1976).

We hold that Mobley was not an agent of the defendant within
the intendment of Code Sect. 8.01-375 because he was neither
employed by the defendant at the time of trial, nor did he have
any other relationship with the defendant at that time. We reject
the defendant’s contention that it is entitled to appoint anyone
as its agent for purposes of Code Sect. 8.01-375 because
such an interpretation would permit litigants to circumvent and
frustrate the very purposes that the statute was designed to
achieve. For example, the defendant’s position, which we do not
accept, would permit a corporate litigant to appoint as its
"agent of the corporation" any witness whose testimony
may be crucial to the determination of a case, thereby permitting
that witness to observe the testimony of other witnesses and
judicial rulings even though that person has no association or
relationship with the corporate defendant.

In view of our disposition of this case, we need not consider
the plaintiff’s remaining contentions. Accordingly, we will
reverse the judgment of the circuit court, and we will remand
this case for a new trial.

Reversed and remanded.