Autrey v. Carroll

• Decision Date: 07 October 1970
• Docket Number: No. 39260,39260
• Citation: 240 So.2d 474
• Parties: Frank H. AUTREY and Betty Autrey, his wife, Petitioners, v. Anne M. CARROLL, Executrix of the Estate of Frank E. Carroll, Deceased, Respondent.
• Court: Florida Supreme Court

Page 474

240 So.2d 474

Frank H. AUTREY and Betty Autrey, his wife, Petitioners, v. Anne M. CARROLL, Executrix of the Estate of Frank E. Carroll, Deceased, Respondent.

No. 39260.

Supreme Court of Florida.

Oct. 7, 1970.

Rehearing Denied Nov. 24, 1970.

Michael H. Oritt, Snyder, Young & Stern, North Miami Beach, for petitioners.

James E. Tribble, Blackwell, Walker & Gray, Miami, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Autrey v. Carroll, 227 So.2d 697), which allegedly conflicts with a prior decision of this Court (Arkin Construction Company v. Simpkins, 99 So.2d 557) on the same point of law. Fla.Const., art. V, § 4 (F.S.A.).

An automobile operated by petitioner Betty Autrey, plaintiff below with her husband, was involved in a head-on collision with one driven by respondent's decedent, Frank E. Carroll, who was found dead at the place of the accident. His death was attributed to heart failure. The opinion of the District Court of Appeal contains the following:

'The collision occurred in Miami, on Northeast Second Avenue between Seventh and Eighth Streets. There were lanes for northbound traffic and for southbound traffic. Carroll was driving north in the northbound lane. A double yellow line divided it from the southbound traffic lane. Carroll's car swerved to the left, into the southbound lane, resulting in a head-on collision with the plaintiff's automobile.

'There was medical evidence from which the jury could find that Carroll had suffered a heart attack prior to the impact, and that the collision resulted from the sudden incapacity or death of Carroll, rather than from negligent driving. In addition thereto, opinion testimony of a traffic expert was introduced to supplement and support that reason for the accident. The latter involved hypothetical questions, based on the circumstances of the collision and the condition and position of Carroll's body in his car as observed after the collision.' (227 So.2d 697, 698)

From a dissenting opinion it appears that respondent listed sixteen assumptions made in the hypothetical question put to the traffic expert and listed sixteen items as supporting testimony for the assumptions. The dissent points out that two of these items were portions of the expert opinion testimony previously given by the traffic experts. A dissenting opinion may be resorted to in determining whether or not a conflict exists. Huguley v. Hall, 157 So.2d 417 (Fla.1963).

In the Arkin case, Supra, the deceased claimant was injured in the course of his employment, but completed his normal duties that day and returned to work the next day with a slight limp. The following morning, while at home, he died. In workmen's compensation proceedings the doctor testified that the fall produced pain and shock, both of which did not build up until some time after the accident. The doctor testified further that the pain and tension precipitated or 'triggered' the occurrence of the fatal heart attack. The testimony of this doctor was the only evidence of a causal relation between the fall and subsequent death. An order granting compensation was quashed as this evidence was not competent. In discussing the doctor's testimony, the Court said:

'It is clear from the foregoing testimony that the witness assumed that the deceased claimant suffered pain, nervous tension and anxiety, but the record in this cause is void of any evidence to support his assumption. * * *

'It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.

'For the reasons above expressed we are allowed to give little, if any, value to the opinion and conclusion of the claimants' specialist.' (p. 561 of 99 So.2d)

We have jurisdiction.

Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922), contains the following statement:

'The purpose of a hypothetical or supposititious question, and the only reason for its allowance, is to obtain the opinion of an expert witness as to probabilities under a given case, the facts of which recited in the question are supposed to be established. The case submitted in the question must consist of such facts only as the evidence proves or fairly tends to prove, or that accord with a reasonable theory of the effect of the evidence.' (p. 93)

There must be competent, substantial evidence in the record tending to prove each of the basic facts set forth in the hypothetical question. Such basic facts do not need to be proven conclusively before a hypothetical question can be based thereon. Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754 (Fla.App.4th, 1969) This principle distinguishes the case of LaBarbera v. Millan Builders, Inc., 191 So.2d 619 (Fla.App.1st, 1966), relied upon by respondent.

In the LaBarbera case, a home owner sought to recover from a building contractor for fire damage to the home from the alleged negligent installation of a central heating unit by the defendant builder. The plaintiff's case rested primarily on the testimony of an expert who testified that, in his opinion, a ceiling ventilation unit in the furnace room had been clogged with insulating materials so that insufficient oxygen was allowed to enter the furnace room. The plaintiff introduced substantial evidence which indicated that materials had been placed over a louver in the ceiling of the furnace room prior to the fire. The evidence was contradicted by direct evidence. Upon this, plaintiff's expert witness based his opinion that the fire started from a 'puffback,' occurring because of a lack of air. The Court in its opinion said:

'The expert opinion of this witness was based upon physical facts found to exist at the time of his inspection of the premises and examination of the heating...