Gulf Ins. Co. v. Provine

• Decision Date: 03 November 1975
• Docket Number: No. 48398,48398
• Citation: 321 So.2d 311
• Parties: GULF INSURANCE COMPANY v. Bob PROVINE, Jr.
• Court: Mississippi Supreme Court

Page 311

321 So.2d 311

GULF INSURANCE COMPANY v. Bob PROVINE, Jr.

No. 48398.

Supreme Court of Mississippi.

Nov. 3, 1975.

Rehearing Denied Dec. 22, 1975.

Heidelberg, Woodliff & Franks, Robert T. Gordon, Jr., W. Swan Yerger, Jackson, for appellant.

Fraiser & Burgoon, Greenwood, for appellee.

Before RODGERS, PATTERSON and SUGG, JJ.

RODGERS, Presiding Justice.

The appellee, Bob Provine, Jr., brought suit in the Circuit Court of Leflore County, Mississippi, against the appellant Gulf Insurance Company, a non-resident insurance company doing business in Mississippi, upon a policy of insurance issued to the appellee insuring him against loss or damage to a certain 1973 model Cessna 8 AG Wagon aircraft owned by appellee.

The aircraft was damaged in a sudden ground crash while being flown to fertilize a farm. The owner, Bob Provine, Jr., contended that the aircraft was totally destroyed and could not be safely repaired. The insurance company denied that the aircraft was damaged beyond repair and offered testimony to show that the cost of repair would amount to much less than the full value of the aircraft as set out in the policy.

The jury returned a verdict in favor of the aircraft owner for the full amount of the liability set out in the insurance policy. The appellant Gulf Insurance Company has appealed to this Court and now contends that the trial court committed a reversible error in permitting the expert witnesses for the appellee to testify that, in their opinion, certain tubular framework of the aircraft was bent because the skin covering of the aircraft was wrinkled, when the fact could have been ascertained by a removal of the engine and cockpit covering; that in fact the covering was removed and the tubular frame was not bent. It is, therefore, argued that the testimony offered by the plaintiff should have been excluded and a directed verdict entered in favor of the insurance company.

We have examined the record, testimony, the many photographs and the authorities cited by appellant and appellee, and have reached the conclusion that the expert testimony offered by appellee, Provine, was admissible in evidence before the jury. One of the expert witnesses for the defendant admitted that there were wrinkles in the skin of the aircraft. The appellee testified that this witness told him that when certain pressure was removed that the situation would adjust itself by 'snapping back into place.'

The expert witnesses disagreed as to whether or not the door to the aircraft would fit after the accident. They disagreed about the meaning of the wrinkles on the skin of the aircraft, and they disagreed as to whether or not the nose cowling was jammed against the baggage section so that when removed it popped out.

One of the plaintiff's witnesses, Mr. Stewart Kimmel, a Federal Aviation Administration licensee who had many years of experience as an aircraft mechanic, testified that he examined the wrecked aircraft here involved the next day after the accident in company with one John Ritz, the aviation maintenance and service specialist for Cessna Manufacturing Company. He testified that the doors to the aircraft were sprung, and 'would not properly fit,' that on the right-hand side of the plane where the injured wing had 'jammed into the ground or bank,' the wing had hit the cabin structure and 'wrinkled the skin on the right-hand side.' He said, 'Well, anytime you have wrinkling of skin, you have got internal structure damage-this is one thing that a pilot is always taught and everything to look for-.' He said that 'the nose cowling was jammed back against the hopper section or the baggage section.' He said that they removed the cowling to inspect the engine and when they did, 'it popped out' under quite a bit of pressure. He testified that from the examination he reached the conclusion that the framework or 'tubular structure' of the aircraft was damaged, that it would cost from eleven thousand dollars ($11,000.00) to thirteen thousand dollars ($13,000.00) to repair the items mentioned, and that it would cost an additional twelve thousand dollars ($12,000.00) to put the aircraft in a jig to straighten the bent body or tubular structure. He said the aircraft was a total loss.

On cross-examination, this witness admitted that the sides to the body structure were not removed by him to observe the tubular body structure. He said, however, that one could not know whether the tubing was bent unless it was put in a jig, and on reflection, he thought he did remove the right-hand panel but was not positive. He would not assume that there was no damage to the body structure of the aircraft.

The defendant objected to this testimony and requested the trial judge to grant a directed verdict because he argued that there was no direct testimony that the tubular structure of the aircraft was damaged. The trial court overruled the objection and the motion.

I.

We have detailed the foregoing evidence because the defendant contends that the opinion of the witness was not based on a proper foundation of fact; that before this testimony was available it was essential that the witness's testimony should afford a reasonably accurate factual basis for his conclusion; and that in the instant case, the testimony does not show that the body or tubular structure was in fact bent, that this could have been established as a fact by simply removing the panels on the sides of the aircraft.

The appellant cites Boston Insurance Co. v. Wade, 203 Miss. 469, 35 So.2d 523 (1948), as authority for this conclusion. In that case, there was evidence that the truck involved was badly damaged. The visible damage would amount to one thousand forty-seven dollars and forty cents ($1,047.40). The witness said, however, 'but that injury might, and probably would show up thereafter not ascertainable without taking the truck to pieces.' 203 Miss. at 473, 35 So.2d at 523. In that case the Court simply held that this testimony was speculative and the Court should have limited the recovery to cost of repairs.

The Wade case is not applicable on this point, because the witness in the instant case testified that the aircraft structure was bent, based upon the fact that the skin was wrinkled. He gave his reasons for his conclusion, and he also testified that the only way to determine whether or not the tubular structure was damaged was to put it in a jig, and he was of the opinion that there was no jig for this particular aircraft design. Generally, the question as to whether or not the opinion of an expert is based on, and supported by, sufficient facts or evidence to sustain it, is a question of law for the court. 32 C.J.S. Evidence § 546(63), at 266 (1964).

It has been said that absolute certainty is not required of an expert witness. It is only necessary that the facts on which an expert relies for his opinion should afford a reasonably accurate basis for his conclusion. It is not necessary that the testimony of an expert witness be capable of demonstration, it is sufficient if his testimony is probably true rather than possibly true, or simple guesswork or conjecture. 32 C.J.S. Evidence § 546(64), at 270 (1964).

Moreover, the qualification of an expert witness to give an opinion as to the value of the damages to the aircraft was largely within the sound judicial discretion of the trial judge. St. Louis Fire and Marine Co. v. Lewis, 230 So.2d 580 (Miss.1970).

A medical heart specialist is not required to operate on a patient before he can testify that in his opinion the patient died of congestive heart failure, and this is true, although a pathologist may later perform an autopsy and testify that the patient died as the result of a cerebral hemorrhage caused by trauma.

The objection of the defendant goes to the weight of...