Hemet Dodge v. Gryder

• Decision Date: 22 April 1975
• Docket Number: No. 1,CA-CIV,1
• Citation: 534 P.2d 454,23 Ariz.App. 523
• Parties: HEMET DODGE, a California Corporation, Appellant, v. Dana Lynn GRYDER, a minor by and through Alice C. Rutan, Guardian of the Estate of said minor, Appellee. 2431.
• Court: Arizona Court of Appeals

Page 454

534 P.2d 454

23 Ariz.App. 523

HEMET DODGE, a California Corporation, Appellant, v. Dana Lynn GRYDER, a minor by and through Alice C. Rutan, Guardian of the Estate of said minor, Appellee.

No. 1 CA-CIV 2431.

Court of Appeals of Arizona, Division 1, Department A.

April 22, 1975.

Rehearing Denied May 27, 1975.

Review Denied June 24, 1975.

Beer, Kalyna & Simon, by Olgerd W. Kalyna, Phoenix, for appellant

Divelbiss & Gage, by G. David Gage, and O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C., by Thomas A. McGuire, Jr., Phoenix, for appellees.

OPINION

FROEB, Acting Presiding Judge.

This action, involving personal injuries sustained by Dana Lynn Gryder, a minor, arose from an accident which occurred when a radiator cap installed by Hemet Dodge, a California corporation, was removed from an overheated radiator on a 1965 Dodge truck owned and operated by Christopher Looke.

In June, 1970, Looke took his truck to be serviced at Hemet Dodge, a car dealership in Hemet, California. The agency made a number of repairs, which included replacing radiator hoses and clamps, adding radiator coolant and supplying a new radiator cap. Instead of installing a radiator pressure cap with a lever release to allow pressure to be vented before it was removed from the radiator, Hemet Dodge used a 'non-lever' cap which testimony revealed was not a recommended cap for Looke's truck. A lever release on the top of the cap is a safety feature which allows the cooling system to be depressurized before the cap itself is removed. Though it lacked the safety feature, the cap which Hemet Dodge installed was adequate to close the filler opening on the radiator and to allow the cooling system to function. The difference between the two radiator caps takes on particular significance in view of the location of the motor and radiator of the truck since they were located inside the cab between the driver and passenger seats beneath a removable cover.

On July 10, 1970, having previously driven to the Phoenix area, Looke began his return trip to Hemet, California, with Dana Gryder then three years old, as his passenger. The outside temperature was hot and before proceeding to California, Looke pulled into a service station to check the radiator. Dana Gryder was seated in the front passenger seat with the seat belt fastened. Looke opened the engine compartment and started to remove the radiator cap. He testified that 'it apparently blew off in my hands . . . the pressure blew my hands, scalding me and the little girl' with a 'good amount' of water shooting up in the air, where it 'hit the ceiling of the truck.' Though Looke immediately went around the truck and released Dana Gryder's seat belt, she received serious burns over twenty-five to thirty-five percent of her body and required hospitalization and extensive medical treatment. The most serious burns were located on her left shoulder and arm. Medical testimony at the trial revealed permanent discoloration and scarring.

Suit was filed by Dana Gryder through Alice C. Rutan, guardian of her estate, against Chrysler Motor Corporation, Christopher Looke and Marian Looke, his wife, and Hemet Dodge, a California corporation. The jury returned verdicts in favor of Dana Gryder against the Lookes and Hemet Dodge fr $56,000 and in favor of Chrysler Motor. The Lookes are not parties to the appeal.

Appellants have raised four assignments of error. The first relates to the opinion testimony of Edward Heler, a manpower economist. After being qualified as an expert, Mr. Heler testified that over her lifetime a hypothetical person with the background of Dana Gryder would experience an impairment of earning capacity of between twenty percent to fifty percent of total earning capacity which, when translated into present value, would be a loss in earning capacity of from $26,500 to $66,000. Appellant contends that the testimony was improper for two reasons. First, that it was speculative and based on conjecture and, second, that the opinion was based upon hearsay matters not in evidence. As to the first objection, we find there is a sufficient foundation in the record based upon a reasonable degree of probability for a jury to determine potential impairment of future earnings, notwithstanding that it involved a three-year old child (at the time of the accident) with obviously no record of earnings. Heler acknowledged that his opinion was based upon a statistical analysis of all persons in a similar category, and he did not purport to state the specific impairment of future earnings which would be attributable to Dana Gryder. From his testimony the jury could have reasonably concluded that Dana Gryder would experience a diminution of earning capacity without resort to speculation. The fact that the loss is not susceptible to exact calculation did not make it error to admit the testimony into evidence.

We deal next with the second objection. In preparation for his testimony, Heler obtained information from Sandra Brown, mother of Dana Gryder, and Alice Rutan, her grandmother, relating to family background and history, together with certain other sociological data pertaining to the family. They provided information prior to trial by way of answers to questionnaires which during the trial were marked for identification as Exhibit 20. Heler testified that it was necessary for him to obtain this information in his analysis of future earning potential. Before Heler testified, the subject of his testimony and the admissibility of the exhibit was raised by counsel before the court in chambers by way of motion in limine. Appellant argued that Exhibit 20 was hearsay and that the information it contained should only be presented in open court before the jury by admissible evidence. While the record is not clear, it appears that during this session in chambers the court overruled appellant's objections made in limine pertaining to both the forthcoming testimony of Mr. Heler as well as the admissibility of Exhibit 20. During the same session in chambers, counsel for appellee avowed that Mrs. Brown and Mrs. Rutan would appear and testify that they prepared the answers in the questionnaires and furnished the information based on their own knowledge. When Heler later testified, he acknowledged that he used the information in Exhibit 20 as the foundation for his opinion. With Exhibit 20 placed before him in court, Heler was asked to assume for purposes of the forthcoming hypothetical question that the information supplied on Exhibit 20 was information applicable to the hypothetical individual represented by Dana Gryder. When Heler was asked to give his opinion, counsel for appellant objected on the ground that it was going to be based on facts not in evidence. The objection was overruled and Heler gave his opinion testimony concerning the impairment of earning capacity. Thereafter, in accordance with the avowal previously made in chambers, counsel for appellee called Mrs. Brown and Mrs. Rutan as witnesses. Both were handed Exhibit 20 for identification and testified that they had furnished the information on the questionnaires from personal knowledge. They were not examined further by counsel for appellee on direct testimony concerning the information on Exhibit 20, nor did appellant see fit to cross-examine either of the two witnesses concerning the exhibit or information which it contained. For reasons which are not known, the exhibit was not offered into evidence at that time. Thereafter, at the conclusion of the trial, in chambers, counsel for appellee moved for the admission of Exhibit 20 into evidence. There was neither objection nor comment by opposing counsel. Inexplicably, there was no order of the court either admitting or denying Exhibit 20 as evidence, nor was the exhibit thereafter presented to the jury. It is the well-settled rule in Arizona that expert opinion may not be based on hearsay statements or information received by the witness outside the court. See, Udall, Arizona Law of Evidence, § 24 (1960). The purpose of the rule is to prevent the expert from basing his testimony on assumptions which are unknown to the jury and unsupported by the evidence. Gillespie Land & Irrigation Co. v. Gonzalez, 93 Ariz. 152, 379 P.2d 135 (1963); Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962); Middleton v. Green, 35 Ariz. 205, 276 P. 322 (1929).

'An expert may be allowed, in cases where expert opinion is appropriate, to interpret facts in evidence which the jury are not qualified to interpret for themselves, (citing cases). He may base such an opinion either on his personal observations given into evidence, (citing cases), or upon assumption that some portion of the testimony of others already in evidence is true, (citing cases). He must, however, base his opinion only upon competent evidence.' Gilbert v. Quinet, 91 Ariz. at 32, 369 P.2d at 268--269.

The rule is clearly applicable to the testimony of the expert in the present case. He indicated in his testimony that in order to evaluate the earnings potential of a given person it was necessary to obtain a background of family and social history. He pointed out that, while not conclusive, it was a necessary aid to his analysis and opinion. He testified that he relied upon the facts presented in Exhibit 20 for his opinion. Had he been asked to relate the contents of Exhibit 20, the hearsay objection would have been applicable. On the witness stand he was not asked to relate them, but when asked for his expert opinion, which was based on this exhibit, counsel for appellant objected on the ground of no proper foundation. The objection was overruled. We hold this was error and, but for what occurred thereafter, we would feel constrained to reverse.

Following Mr. Heler's testimony concerning the impairment of potential earning capacity, both Mrs. Rutan and Mrs. Brown were called as witnesses by appellee and testified that all of the...