Ehman v. Rathbun, No. 2

• Court: Court of Appeals of Arizona
• Writing for the Court: RICHMOND; HOWARD, C. J., and HATHAWAY; HOWARD, C. J. and HATHAWAY
• Citation: 569 P.2d 1358,116 Ariz. 460
• Parties: Dewey Ray EHMAN, a minor, by his mother and guardian ad litem, Donna Ehman, Appellant and Cross Appellee, v. Billy RATHBUN and Marjorie Rathbun, husband and wife, Appellees and Cross Appellants. 2410.
• Decision Date: 02 June 1977
• Docket Number: No. 2,CA-CIV

Page 1358

569 P.2d 1358 116 Ariz. 460 Dewey Ray EHMAN, a minor, by his mother and guardian ad litem, Donna Ehman, Appellant and Cross Appellee,
v.
Billy RATHBUN and Marjorie Rathbun, husband and wife, Appellees and Cross Appellants. No. 2 CA-CIV 2410. Court of Appeals of Arizona, Division 2. June 2, 1977.
Rehearing Denied Aug. 19, 1977.
Review Denied Sept. 22, 1977.

[116 Ariz. 462]

Page 1360

Verity, Smith, Lacy, Allen & Kearns, P. C. by Bruce F. Rinaldi, Tucson, for appellant and cross appellee.

Kipps & Salter by Gordon S. Kipps, Tucson, for appellees and cross appellants.

OPINION

RICHMOND, Judge.

Appellant, hereinafter plaintiff, was a passenger in a pickup truck that collided with a car driven by appellee Billy Rathbun, hereinafter defendant. The pickup truck was being driven by Russell Kosten, who also was a plaintiff in the court below. After a verdict and judgment awarding damages to both plaintiff and Kosten, and in favor of Kosten and against defendant on the latter's counterclaim, the trial court granted defendant's motion for new trial as against plaintiff on the issue of damages only. Plaintiff has appealed from that order, and defendant has perfected a cross appeal from so much of the order denying a new trial on all issues. There has been no appeal from the judgment in favor of Kosten.

In granting a new trial on damages the trial court concluded that an expert witness was permitted improperly to testify regarding plaintiff's future economic losses, which were based on the premise that he would be unable to work as a truck driver at a copper mine as a result of his accident injuries. The court specifically found that there was "insufficient foundational evidence" to substantiate the premise.

Although ordinarily the granting of a new trial is to a great extent discretionary with the trial court, Cano v. Neill, 12 Ariz.App. 562, 473 P.2d 487 (1970), this appeal involves no such discretion. The question is whether the record, contrary to the court's finding, reflects an evidentiary foundation for the witness's computation of damages.

Plaintiff relies on the testimony of three witnesses: Dr. Silver, the orthopedic surgeon who attended him; Dr. Johnson, a rehabilitation psychologist who administered vocational tests, and Dr. Buehler, the economist.

Dr. Silver testified that as a result of his injuries plaintiff had sustained a 20 to 25 per cent partial permanent disability of the right leg, which might preclude his working at hard labor in a copper mine "unless he was willing to assume the responsibilities that he could break his leg." He went on to state:

"I think he might hurt himself or hurt others if they depended on him in time of crisis. Some sudden twist or emergency movement to save himself or somebody else might cause him irreparable harm or loss of life."

On cross examination he characterized plaintiff's problems as mild.

Plaintiff was 15 at the time of the accident. He had dropped out of school in the eighth grade. Before the accident he had worked as a janitorial helper for his father's office maintenance company. Dr. Johnson, based on his testing, testified that with no physical disability plaintiff could have worked at a variety of jobs, including driving a truck. He also testified that if plaintiff "were unable to work in the mines because of his physical disability and his physical disability prevented that type of employment," his tests indicated it was possible to "re-train" him to work as a draftsman or television repairman.

Dr. Silver did not testify that plaintiff would be physically unable to work as a truck driver, and Dr. Johnson's opinion on "re-training" was based on projected inability "to work in the mines," not as a driver. However, Dr. Buehler, who computed future[116 Ariz. 463]

Page 1361

economic loss from the difference between the wages paid a truck driver at the mines and those paid a draftsman or television repairman, was permitted to testify, over hearsay objection, as follows:

"Q. In your research in analyzing this situation, was there a step of employment or beginning part of employment with a majority of the mines other than truck driver?

"A. Yes. Most of the mines that I surveyed do not hire a truck driver directly. They hire an individual in as a laborer and if he is responsible, reliable and a good worker, then he can make application to become a truck driver, which people in the mines indicate a preferred job in terms of salary and working conditions."

From this, plaintiff argues that physical disqualification for hard labor would prevent him from ever qualifying as a truck driver.

Despite a developing trend to the contrary, ¹ it is still the rule in Arizona that expert opinion may not be based on hearsay statements or information received by the witness outside the court. Hemet Dodge v. Gryder, 23 Ariz.App. 523, 534 P.2d 454 (1975); Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962). It is true that the so-called "expertise" of the witness necessarily is based on hearsay in the course of his training and experience. The door is closed, however, to hearsay sources of information in acquiring factual knowledge of the specific subject on which he is to testify. 2 Jones on Evidence 639, § 14:21 (6th Ed. 1972).

Dr. Buehler was head of the economics department at the University of Arizona, and the jury was told that ". . . a part of the science of economics . . . can be used in making projections as to the effect of (an) injury on a person's earning capabilities" by the following means:

"Essentially,...