Dunkin v. Reagon, WD

Decision Date27 May 1986
Docket NumberNo. WD,WD
Citation710 S.W.2d 498
PartiesPatricia DUNKIN, Appellant, v. Duane Albert REAGON and Sam Young, Inc., Respondents. 36778.
CourtMissouri Court of Appeals

Ronald R. Holliger, Kansas City, for appellant.

B.W. Jacob, Robert C. Haldiman, Bagby & Jacob, Kansas City, for respondents.

Before CLARK, C.J., and KENNEDY and LOWENSTEIN, JJ.

CLARK, Chief Judge.

Plaintiff sued defendant truck line and truck driver for injuries and property damage sustained in a vehicle collision. A jury returned its verdict for defendants and this appeal followed.

The accident occurred October 5, 1979 on Interstate Highway 70 near the Truman Sports Complex. Both vehicles, plaintiff's passenger car and defendants' semi-tractor trailer, were westbound in a divided trafficway consisting of three lanes for travel in the direction the parties were moving. It was agreed by the two witnesses, plaintiff and the truck driver, that the collision occurred in the center lane of the three. Beyond that, there was dispute as to what was the cause of the impact. Plaintiff's version was that the truck had been in the inside lane and struck her car when the truck moved into the center lane where her vehicle was already located. Defendant contended the truck was substantially in the center lane and was struck when plaintiff attempted to maneuver from the outside lane into the center lane. Liability was the determinative issue in the case.

Appellant's first and primary point on appeal contends that the trial court erred in excluding the testimony of her expert witness, one Glass, who purportedly would have testified that the accident could not have happened as the truck driver, Reagon, described. The ruling on the admissibility of the testimony occurred in the following manner. Defendants filed a motion in limine on the second day of trial after the jury had been selected, opening statements had been made and one witness had testified. The motion asserted that an attempt by plaintiff to call an accident reconstruction witness was anticipated. Defendants objected to the reception of such evidence from a witness who had not seen the accident when it happened.

The motion was called up for disposition at the opening of court on the second trial day. Plaintiff's counsel noted that the court and jury had heard the testimony of the truck driver, the witness who testified the previous day, and that plaintiff intended to call an expert, Glass, who would testify "that from the physical evidence, the testimony of the defendant and the plaintiff and the police officer and the police report that he can reconstruct this accident to help the jury understanding (sic) that the accident didn't happen as alleged and testified to by the defendant." No further elicitation of Mr. Glass's testimony was provided and, although plaintiff's attorney stated that he would make an offer of proof, none was submitted beyond the statement quoted above.

The record does not disclose on what basis the witness Glass was asserted to have expert qualification. We know only that he would utilize the evidence otherwise available to the jury, the testimony of the parties and the results of the post-accident police investigation, to give his opinion of how the collision must have occurred. Presumably, the opinion would have been that the impact was caused, as plaintiff contended, by movement of the truck from the inside traffic lane into the lane where plaintiff's vehicle was situated.

The point contending that exclusion of the testimony by witness Glass was error has not been preserved for appellate review. The proper procedure to present and preserve an offer of proof is to put the witness on the stand and propound the questions. The offer must show all the facts necessary to establish the admissibility of the testimony sought to be introduced and must be specific and definite, not a mere statement of the conclusions of counsel. Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983); State v. Sullivan, 553 S.W.2d 510, 513 (Mo.App.1977). If no offer of proof is made, any error in exclusion of evidence is not preserved. Buder v. Martin, 657 S.W.2d 667, 670 (Mo.App.1983).

In her brief, appellant asserts that counsel was willing to make an offer of proof as to the content of witness Glass's testimony but the offer was rejected. The record does not bear out this assertion, at least if it be construed to suggest that the trial court prevented the formal presentation of an offer. The attorney did say that he would make an offer of proof "if necessary," but he did not do so, did not undertake to call witness Glass to the stand and made no request for leave to supplement in any detail his conclusionary description of the proffered evidence. The point is therefore not available for review.

Even were the alleged error to have been preserved, however, the contention that the testimony was improperly excluded has no merit. The opinion evidence by the witness as to how the accident must have happened was not admissible.

In the case of Housman v. Fiddyment, 421 S.W.2d 284, 289 (Mo. banc 1967), the court stated the rule as to admission of opinion testimony by experts:

"An expert witness, in a manner, discharges the functions of a juror; and his evidence should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw conclusions from the facts...

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20 cases
  • Zweifel v. Zenge and Smith
    • United States
    • Missouri Court of Appeals
    • August 1, 1989
    ...(Mo.App.1923); Fowler v. Sone, 226 S.W. 995, 997 (Mo.App.1920); and where particular testimony has been excluded, as in Dunkin v. Reagon, 710 S.W.2d 498 (Mo.App.1986); see also Siebern, 711 S.W.2d 935; Salsberry, 587 S.W.2d We hold therefore that plaintiffs are not entitled to reversal for ......
  • Stucker v. Chitwood, 17580
    • United States
    • Missouri Court of Appeals
    • December 2, 1992
    ...part, is capable of reaching its own conclusions with regard to fault and degree of fault in a case of this type. See Dunkin v. Reagon, 710 S.W.2d 498, 500 (Mo.App.1986). The instructions and verdict forms impose that duty on the triers of fact and guide its proper performance. The challeng......
  • Jake C. Byers, Inc. v. J.B.C. Investments
    • United States
    • Missouri Court of Appeals
    • July 14, 1992
    ...is superfluous because the fact finder is competent to decide the issue without the aid of expert opinion testimony. Dunkin v. Reagon, 710 S.W.2d 498, 500 (Mo.App.1986); Wessar v. John Chezik Motors, Inc., 623 S.W.2d 599, 602 (Mo.App.1981). In addition, when the fact finder is given enough ......
  • State v. Jones
    • United States
    • Missouri Supreme Court
    • April 19, 1988
    ...exclude expert testimony is one left to the discretion of the trial court. State v. Jones, 594 S.W.2d 932, 938 (Mo.1980); Dunkin v. Reagon, 710 S.W.2d 498 (Mo.App.1986).8 Section 490.680, RSMo 1986.9 Gerald v. Caterers, Inc., 382 S.W.2d 740, 743 (Mo.App.1964).10 State v. Schlup, 724 S.W.2d ......
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