Present:     All the Justices

LUCILLE B. MOTLEY
                       OPINION BY JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 982081              June 11, 1999

TARMAC AMERICA, INCORPORATED

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Melvin R. Hughes, Jr., Judge

      Code § 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 § 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 direction.

     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


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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.


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     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 § 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 § 8.01-375 permits it to appoint any person as an


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"agent of . . . a corporation" and, thus, Mobley was exempt

from the statutory exclusion.   We disagree with the defendant.

     Code § 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 § 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 § 1838 at 463 (James H.

Chadbourn ed. 1976).

     We hold that Mobley was not an agent of the defendant

within the intendment of Code § 8.01-375 because he was

neither employed by the defendant at the time of trial, nor


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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

§ 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.




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