Ehman v. Rathbun
Decision Date | 02 June 1977 |
Docket Number | No. 2,CA-CIV,2 |
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. |
Court | Arizona Court of Appeals |
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:
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 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:
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, we treat the human being as an economic asset to determine what that individual could generate in economic benefits into the future and then to use a technique called discounting to bring the value of those future earnings, future monies that would be generated, to what is known as a present value; in other words, a sum of money that is payable today invested at a reasonable rate of interest would generate earnings or interest over the normal life of an individual, the normal working life of an individual such that he would have earned exactly what he would have earned if he had not been disabled."
Information regarding the hiring practices of prospective employers is not part of the economist's qualification to project future economic loss. It is as much a part of the facts with which he works as information about the prospective employee, which would have been subject to hearsay objection. See Hemet Dodge v. Gryder, supra. Thus, Dr. Buehler's testimony regarding "most of the mines that (he) surveyed" 2 did not supply the foundation for his computation of future economic losses. The latter testimony should have been excluded, and the trial court was correct in ordering a new trial.
We believe, however, that it was error to limit the new trial to the issue of damages. There was sufficient evidence from which a jury could legitimately conclude that plaintiff assumed the risk of the specific danger that caused his injuries. 3 Although the jury found in favor of Kosten as well as plaintiff on liability, and against defendant on his counterclaim, the verdict was not conclusive on the issue of assumption of risk. 4
In Tovrea Equipment Co. v. Gobby, 72 Ariz. 38, 230 P.2d 512 (1951), the Arizona Supreme Court said:
". . . (A) new trial on the question of damages only will be granted when liability is not contested or has been clearly proved by the plaintiff so that the issues may be deemed separable; on the other hand when liability is contested and the issues are so inextricably entwined that a fair trial could not be given one of the parties on the issue of damages alone then a new trial will be ordered on all issues."
72 Ariz. at 42, 230 P.2d at 515.
Defendant on his cross appeal has questioned the exclusion of testimony that plaintiff's brother had made statements after arriving at the accident scene to the effect that he had warned Kosten and plaintiff not to drive the pickup truck until its lights and brakes had been fixed. The statements were properly excluded. They did not qualify as excited utterances, and the trial court correctly prevented defendant, after calling plaintiff's brother as a witness, from eliciting his denial of the statements in order to render them admissible through other witnesses for impeachment.
The order granting a new trial is modified by eliminating therefrom that portion limiting the issue to be retried to the amount of damages, and as modified is affirmed.
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