Dudek v. Popp

• Decision Date: 08 July 1964
• Docket Number: No. 44,44
• Citation: 129 N.W.2d 393,373 Mich. 300
• Parties: Joseph DUDEK, Plaintiff and Appellee, v. John M. POPP, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 393

129 N.W.2d 393

373 Mich. 300

Joseph DUDEK, Plaintiff and Appellee, v. John M. POPP, Defendant and Appellant.

No. 44.

Supreme Court of Michigan.

July 8, 1964.

van Benschoten & van Benschoten, Saginaw, for plaintiff and appellee.

Heilman, Purcell & Tunison, Saginaw, for defendant and appellant.

Before the Entire Bench.

O'HARA, Justice.

This case arises from the collision of 2-motor vehicles, one a passenger car, the other a tractor semi-trailer unit. The vehicles were approaching each other on a 20-foot paved 2-lane highway, at about 10 o'clock in the forenoon. Plaintiff Dudek, appellee here, was driving the automobile south, defendant-appellant Popp, the tractor-trailer north. Each was alone in his vehicle. Each claims the other crossed the center line. Popp was uninjured and his vehicle virtually undamaged. Dudek sustained injury. Tried to a jury, a verdict for $40,000 was returned. Defendant Popp appeals from denial of his motion for a new trial. Seven claims of error are assigned. We regard several of them as the same in principle.

The following restatements fairly present the issues as to the evidentiary questions raised:

(1) Is the interpretation of physical facts learned upon investigation of a motor vehicle collision such an area of expertise as permits an investigating officer to give opinion testimony as to an ultimate factual issue?

(2) The same question, but posed as to a diagram prepared by the investigating officer and a photograph of the scene of the accident?

The trial court allowed the investigating officer, over continuous and strenuous objection, to testify as follows (as to the photograph):

'This [photograph] shows the area where we believe the impact took place. * * * On this photograph there is a mark. * * * This particular mark, I refer to, I believe to be a skid mark * * *. In my opinion, sir, the skid marks started south and continued toward the north.

'Q. So that means the vehicle, in your opinion, Officer, was traveling which way to make the skid mark?

'A. In a north direction. * * *

'Q. Now with regard to that skid mark, Officer May, could you tell the court and jury whether or not the particular skid mark was made by an extremely heavy vehicle, or by, say, an automobile as opposed to a truck loaded with gravel? * * *

'A. It would have had to have been made by a heavy vehicle.'

As to the diagram made by Officer May and another officer, the following was allowed to be made of record:

'Q. Officer May, you did make a diagram regarding these measurements, so on?

'A. Yes, sir.

'Q. And you say that was done with Officer Kelly?

'A. Yes, sir.

'Q. And when was this done?

'A. Sometime after the accident.

'Q. The same day?

'A. Yes.

'Q. I show you plaintiff's Exhibit 22. Is that a photostatic copy of your diagram?

'A. Yes, is it.

'Q. I'll offer plaintiff's Exhibit 22 in evidence.

'Mr. Heilman: Your Honor, I have the same objection I did previously. It has conclusions on it. It is not proper for that reason.

'Mr. van Benschoten: Well, I think, your Honor, if Mr. Heilman is going to argue this, I will ask----

'The Court: In view of the testimony we have had, gentlement, I think I'll receive it, for what it is worth, over objection. * * *

'Q. How did you determine for the purposes of this diagram, or what did you determine to indicate what you call the point of impact?

'A. By the amount of dirt, or mud, referred to as debris, in a more or less concentrated spot. * * *'

On the interpretation of facts observed at the scene of the accident the following testimony was recorded:

'Q. Did you make an investigation as to the collision location? Put it this way, did you make any investigation as to the location of the actual collision between the 2 vehicles involved?

'A. Yes.

'Q. How did you make that investigation? Tell the court and jury what you did.

'A. I believe that we looked--I say 'we',--I looked for collision damage or a point of impact, so to speak, where the initial collision took place.

'Q. All right. Did you find the place?

'A. Yes, sir.

'Q. And could you tell this court and jury about how far from Joe's car where it came to rest, up the road was that point, if you can remember?

'A. (Pause) I will say approximately 275 or 300 yards.

'Q. All right. Will you just tell the court and jury what you found at this spot.

'A. At the spot where [we] figured the collision or the initial impact took place, there was a pile or--there was debris.

'Q. What do you mean by the word 'debris'?

'A. Dirt, gravel, glass, just debris.

'Q. Can you tell us with regard to the center line of the road where it was located, Officer May, or primarily located?

'A. To the best of my recollection, the debris was on the west-on the roadway on the west--that would be on the left side.

'Q. That would be on the southbound lane, then?

'A. Yes.

'Q. If that road goes north and south, correct? If East street goes north and south, you are saying it was on the west side of the highway?

'A. Yes, sir.

'Q. That would be on Joe Dudek's side of the highway?

'A. Yes.'

In view of the expending areas in which opinion evidence is being received by courts, we believe a brief review of principles is indicated. In the law of evidence 'opinion' is an inference or conclusion drawn by a witness from facts. Under ordinary circumstances a witness is to be restricted to facts within his personal knowledge, and his opinion or conclusion with respect to matters in issue, or relevant to the issue, may not be received in evidence. (See 32 C.J.S. Evidence § 438, p. 70.) The danger involved in receiving the opinion of a witness is that the jury may substitute such opinion for their own. Accordingly, where all the relevant facts can be introduced in evidence and the jury are competent to draw a reasonable inference therefrom, opinion evidence will not be received. When the conclusion to be drawn from the facts depends on professional or scientific knowledge or skill, the conclusion may be stated. (32 C.J.S. Evidence § 446, pp. 74, 75.)

Our question here resolves itself into 2 subdivisions. First, is the subject matter about which Officer May testified within that area of esoteric knowledge in which the average juror would be unschooled and unexperienced? Secondly, is Officer May the possessor of that measure of skill and special knowledge which would qualify him to testify opinionatively?

Much has been written upon this general topic in both case law and legal publications. If any trend be ascertainable, it is in the direction of the relaxation of the rule, both as to the subject matter of expertise and in the qualifications necessary to enjoin expert status. Even popular news weeklies have recognized the current re-examination of the question by courts. (See Time, March 20, 1964, The Law.)

Historically, opinion evidence as to cause and effect in areas of ordinary human experience has been barred, on the reasonable assumption that such determination is attainable by the jurors themselves. We note, however, a definitive trend toward the acceptance of police officers with extensive experience in accident investigations as 'experts' and in consequence the allowance (within limits) of their opinion evidence. These opinions have included the point of impact (Zelayeta v. Pacific Greyhound Lines, 104 Cal.App.2d 716, 232 P.2d 572), braking and stopping distances (Kerr v. Caraway [Fla.], 78 So.2d 571).

We align ourselves with the authorities which hold that one properly qualified in accident investigative background may testify either from personal observation or from properly authenticated and admitted exhibits that, in his opinion, certain marks are skid marks and that they were made by a given motor vehicle and his reasons therefor. On the same basis and for the same reasons, he may point out in his opinion the point of impact.

Our former Court Rule No. 37, § 16 (present GCR 605) is reflective of this trend and we make it applicable to the question here presented:

'Questions calling for the opinion of an expert witness need not be hypothetical in form unless the judge, in his discretion, so requires. The witness may state his opinion and reasons therefor without first specifying data on which it is based, but upon cross examination, he may be required to specify such data. The judge, in his discretion, may require that a witness,...