Ganrud v. Smith

• Decision Date: 28 March 1973
• Docket Number: No. 55211,55211
• Parties: Gordon A. GANRUD and Ruth E. Ganrud, Appellants, v. Bernard Andrew SMITH, d/b/a Smith Trucking Company, Appellee.
• Court: Iowa Supreme Court

Page 311

206 N.W.2d 311

Gordon A. GANRUD and Ruth E. Ganrud, Appellants, v. Bernard Andrew SMITH, d/b/a Smith Trucking Company, Appellee.

No. 55211.

Supreme Court of Iowa.

March 28, 1973.

Nelson & Fassler, Cedar Rapids, for appellants.

Nolan, Lucas & Nolan, Iowa City, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, HARRIS and McCORMICK, JJ.

MOORE, Chief Justice.

This is a law action by plaintiff, Gordon A. Ganrud, for personal injury damages and by his wife, Ruth, for loss of consortium, arising out of a head-on collision between a semi truck in which Ganrud was a sleeping passenger and a semi truck owned by defendant and driven by his employee Willis Bible. Plaintiffs have appealed from judgment on jury verdicts for defendant.

Plaintiffs' assigned errors are directed at alleged erroneous rulings by the trial court on admission of opinion evidence given by defendant's two witnesses, Dr. George W. Brown and William E. Billings. We consider each assignment, infra, in the order asserted.

The factual situation here involved is the same as that in Berghammer v. Smith, Iowa, 185 N.W.2d 226, although the problems on this appeal are entirely different.

Ganrud was employed by Admiral Merchants Motor Freight (Admiral) as a truck driver. He had been regularly assigned to a round-trip route between St. Paul, Minnesota and St. Louis, Missouri. He worked regularly with a fellow employee and co-driver, John F. Berghammer. Usually while one drove the other slept in the sleeper cab.

About 2:45 A.M., September 27, 1966 the Admiral truck was proceeding north on U.S. Highway 218, south of Hills, Iowa. Berghammer was driving. Ganrud was sleeping in the cab. Berghammer testified that while crossing a bridge, he noticed the southbound oncoming tractor-trailer rig owned by defendant and driven by Willis Bible. Approaching the curve in the road north of the bridge, Berghammer stated the other truck began to cross into the east, or northbound, lane of the highway. Berghammer said he took evasive action, pulling the Admiral truck as far onto the right shoulder as he could without tipping over. He said he began to realize the southbound truck was now completely in the northbound lane, and as the vehicles drew quite close (5--10 feet), Berghammer pulled the wheel hard to the left to attempt to avoid a collision. However the vehicles collided and with considerable force. Berghammer testified his vehicle was on the east side of the center line when the two vehicles collided.

As a result of the collision defendant's tractor was torn loose from the trailer and the cab completely destroyed. The Admiral trailer was ripped open and the cab torn from the tractor. The load of merchandise from the Admiral trailer was spread on the highway, shoulders and ditches. The location of the various parts of the vehicles on and off the highway are clearly shown by photographs taken soon after the accident. They are undisputed in the record.

Defendant's driver, Bible, was killed instantly. Berghammer received serious personal injuries. He was knocked unconscious and remained so for more than 20 hours. Ganrud was also rendered unconscious, received serious personal injuries and was hospitalized for over a month.

In addition to witness Berghammer, plaintiffs called two highway patrolmen, Brian Thompson and Blaine Goff who had investigated the accident before either of the vehicles had been removed. Thompson had arrived before either of the injured or Bible were removed. Goff arrived about a half hour later. Both Thompson and Goff stated their opinions, based upon their experience, training the personal examination of the accident scene, that the vehicles collided in the east, or northbound lane of traffic. Other evidence submitted by plaintiffs is not material to the appeal questions.

Defendant produced two experts at trial. Dr. George W. Brown, a physiologist and accident reconstructionist from the University of Iowa and William E. Billings, an accident reconstruction specialist from Cleveland, Ohio. The expression of their opinions, over plaintiffs' objections, gives rise to questions presented to us.

I. As all plaintiffs-appellants' assigned errors concern the admission of opinion testimony, the following preliminary statements of the applicable legal principles should be made. The whole subject of the use of expert testimony is exhaustively discussed in Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646. A recent coverage of the subject is found in 19 Drake L.Rev. 245, 'Opinion Evidence in Iowa.'

Opinion testimony will be allowed if it is of a nature that it will aid the jury in determining the case and is based upon some special training, experience or knowledge of the witness in respect to the matter under investigation. Greenwell v. Meredith Corporation, Iowa, 189 N.W.2d 901, 908; Bernal v. Bernhardt, Iowa, 180 N.W.2d 437, 438, 439; McCrady v. Sino, 254 Iowa 856, 862, 118 N.W.2d 592, 595.

Expert testimony is not admissible unless the witness is shown to be qualified and the facts upon which he bases his opinion are sufficient to enable a witness so qualified to express an opinion which is more than a mere conjecture. Hedges v. Conder, Iowa, 166 N.W.2d 844, 857; Hardwick v. Bublitz, 254 Iowa 1253, 1259, 119 N.W.2d 886, 889. It is not enough that a witness be generally qualified in a certain area, he must also be qualified to answer the particular question propounded. Tiemeyer v. McIntosh, Iowa, 176 N.W.2d 819, 824; Karr v. Samuelson, Iowa, 176 N.W.2d 204, 210.

The receipt of opinion evidence, lay or expert, rests largely in the sound discretion of the trial courts and we will not reverse its ruling absent manifest abuse of that discretion to the prejudice of the complaining party. Olson v. Katz, Iowa, 201 N.W.2d 476, 482; Marean v. Petersen, 259 Iowa 557, 563, 564, 144 N.W.2d 906, 910; Grismore v. Consolidated Products Co., 232 Iowa 328, 342, 5 N.W.2d 646, 654. See also 31 Am.Jur.2d. Expert and Opinion Evidence, § 3, p. 497. Of course, the discretion exercised in admitting or excluding expert or opinion testimony is not unlimited, but must be a legal one based on sound judicial reason. Sauer v. Scott, 176 N.W.2d 140, 144; Dougherty v. Boyken, 261 Iowa 602, 607, 608, 155 N.W.2d 488, 491. The discretion of the trial court ceases where the record shows as a matter of law the witness is not qualified or the facts upon which the opinion is based are not sufficiently stated by the witness. Bernal v. Bernhardt, Iowa, 180 N.W.2d 437, 439; Hedges v. Conder, Iowa, 166 N.W.2d 844, 857, 858.

We are committed to a liberal rule on the admission of opinion testimony. Tiemeyer v. McIntosh, supra, Iowa, 176 N.W.2d 819, 824. Our reasoning is thus stated in Bengford v. Carlem Corporation, Iowa, 156 N.W.2d 855, 865, 866:

'The admission of opinion evidence rests largely in the sound discretion of the court and considerable leeway is allowed in this field of evidence for the reason that no matter how the opinion question is phrased or formulated, it remains an opinion which the trier of facts is at liberty to reject. Therefore only in clear cases of abuse would admission of such evidence be found prejudicial. (Citations).'

II. Plaintiffs first assert the trial court erred in the admission of Dr. Brown's opinion testimony that Berghammer probably suffered loss of memory of events occurring immediately before the collision, i.e., retrograde amnesia. Plaintiffs objected to Dr. Brown answering the hypothetical question on the grounds it called 'for the opinion and conclusion of the witness on matters he has not been shown qualified or competent to testify to * * *.' They argue here Dr. Brown's testimony should have been excluded because he is not a physician licensed in this or any other state.

Admittedly Dr. Brown is not a medical doctor or physician. He however testified at length regarding his qualifications. He received a B.A. in general science from the University of Iowa in 1940. In 1942 he received a M.S. degree in chemistry from the University of Iowa, majoring in metallurgy. He then entered the Army, serving in the Chemical Warfare Service until 1946. He returned to Iowa University to do advance work. From 1946--48 he was a research assistant in metallurgy and chemistry. He worked on his Ph.D. degree in physical chemistry but changed fields to physiology and obtained a Ph.D. in that field in 1952. Some of the physiology courses he passed were also required courses for medical students. Prior to receiving his Ph.D., Dr. Brown worked at Wright-Patterson Air Force Base as a research physiologist. His doctoral thesis was on problems and mechanics of concussion and brain damage asspociated with aircraft accidents.

After receiving his Ph.D. he spent a year in the Department of Surgery further studying neurological problems associated with head injury. He made a study of the relationship and effect of concussion upon human memory. He has written articles in this area which have been published in recognized medical journals.

The question posed is whether an expert need be a licensed physician to give opinion testimony of the probability of loss of memory following head injury and a long period of unconsciousness.

No case has come to our attention which is factually the same as the case at bar. Directly in point is this from Jones on Evidence, (6th ed.), § 14.13, p. 619:

'Like licensed experts in other fields the fact that a person is licensed to practice in a branch of the healing arts carries a presumption of qualification to testify as an expert at least in his given field. But licensing does not necessarily settle the matter conclusively, as the necessity of specialization may be shown where the matter in issue calls for it. Nor is the lack of license necessarily a bar to accepting the person as a witness, as learning and experience may provide the essential elements of qualification.'

In support of the last sentence...