Hinson v. Phoenix Pie Co., 2

• Decision Date: 29 June 1966
• Docket Number: CA-CIV,No. 2,2
• Citation: 416 P.2d 202,3 Ariz.App. 523
• Parties: William Reid HINSON and Constance Marie Hinson, husband and wife, Appellants, v. PHOENIX PIE COMPANY, an Arizona corporation; and James Hancock and Jane Doe Hancock, husband and wife, and John Doe and Richard Roe, Appellees. 191.
• Court: Arizona Court of Appeals

Page 202

416 P.2d 202

3 Ariz.App. 523

William Reid HINSON and Constance Marie Hinson, husband and wife, Appellants, v. PHOENIX PIE COMPANY, an Arizona corporation; and James Hancock and Jane Doe Hancock, husband and wife, and John Doe and Richard Roe, Appellees.

No. 2 CA-CIV 191.

Court of Appeals of Arizona.

June 29, 1966.

Joseph H. Soble, Tucson, for appellants.

Spaid, Fish, Briney & Duffield, by Richard Briney, Tucson, for appellees.

KRUCKER, Chief Judge.

Appellant, William Reid Hinson, plaintiff below, was injured when the pie delivery truck he was driving left the road and overturned. He filed suit to recover for the injuries sustained alleging that the appellees herein, defendants below, were negligent in providing him with an unsafe vehicle. Several days prior to trial the appellants moved for a continuance on grounds that the location of a missing witness, the highway patrolman who had investigated the accident, had been located and that additional time was required to interview this witness and properly prepare for trial. The motion was heard and denied on grounds that sufficient time existed prior to the trial to interview this witness. The issue went to trial and at the close of appellants' case, the trial court granted appellees' motion for directed verdict and judgment was entered thereon. A motion for a new trial was duly filed and denied. From denial of the motion for a continuance, from the directed verdict and judgment thereon, and from denial of the motion for new trial, this appeal is taken.

Appellee Phoenix Pie Company was the owner of the pie delivery truck driven by Hinson when injured. An agreement existed between this company and appellee Hancock for the distribution of pies in the Tucson area. The agreement provided that Phoenix Pie Company would provide Hancock with a delivery truck, that Hancock would undertake responsibility for the repair and maintenance of the vehicle, that required repairs would be paid for from funds collected in the sale of pies, that from such funds Hancock would keep approximately $125.00 per week for his services and would deposit the balance in an account for the company.

Appellant Hinson had contacted Hancock regarding employment as a pie deliveryman and after consulting Phoenix Pie Company, Mr. Hancock entered into an agreement with Mr. Hinson concerning the employment. Hinson was to make several trips to Phoenix each week to pick up pies, using the Phoenix Pie Company vehicle supplied Hancock and deliver them to Tucson. He was to be paid $10.00 per trip and was given $10.00 for gas and oil on each trip. In addition, Mr. Hinson was paid $30.00 per week for making certain pie deliveries in the Tucson area.

On May 1, 1961, Mr. Hinson was making one of his trips to Phoenix when the delivery truck went off the highway and overturned, seriously injuring him. A highway patrolman was dispatched to the accident and arrived at the scene approximately 20 to 30 minutes after the accident occurred. The patrolman found Mr. Hinson standing near the overturned truck in a state of shock and suffering severe bodily injuries. Mr. Hinson was taken to the Pinal County Hospital, where he remained unconscious for approximately three days. He was later released and thereafter admitted to the Veterans Hospital in Tucson where a damaged kidney was removed and psychiatric treatment undertaken.

At the trial Mr. Hinson was suffering from retrograde amnesia and was unable to recall any of the events which occurred on the date of the accident. The highway patrolman who had investigated the accident testified as to what he observed at the scene of the accident but was not permitted to testify as to what, in his opinion, had caused the accident. He testified that he observed little twists of rubber marking the highway and that thereafter there were deep gouges in the highway running in the same direction that the truck apparently took in going off the road. This witness further indicated that the right rear tire had no tread and was blown out, that the right rear him was worn and bent, that the other tires on the truck were all inflated and that there were no foreign objects in the tire or on the roadway prior to the black marks. He testified that during his employment with the Arizona Highway Patrol from 1956 through 1962, he had investigated a minimum of 300 automobile accidents, had taken special courses in traffic accident investigation and had personally taken part in many tire safety experimental tests. However, when asked on the basis of his observations and experience what caused the black marks and gouges to appear on the highway, the court sustained appellees' objection and the witness was not permitted to express an opinion as to the cause of the markings and the cause of the accident. Appellants assign this ruling as error, alleging that in prohibiting the highway patrolman from testifying as to the cause of the marks on the highway, the court erroneously eliminated proper evidence upon which the jury could determine the ultimate fact of causation.

Although the appellant did not make an offer of proof in accordance with Rule 43(h), Arizona Rules of Civil Procedure, 16 A.R.S., the voluminous transcript reveals that it was obvious to the court that testimony of the highway patrolman would have been that, in his opinion, the defective right rear tire was the cause of the accident. In accordance with the doctrine of our Supreme Court in Watson v. Southern Pacific Company, 62 Ariz. 29, 152 P.2d 665 (1944), we believe that the discussions of counsel, out of the jury's presence, on appellees' objections to the opinion testimony of the highway patrolman, was sufficient notice to the court to bring the matter within the requirements of Rule 43(h).

Appellees contend that the trial court must conduct a preliminary inquiry both as to the subject matter of the particular issue and as to the qualifications of the witness as an expert. As to the subject matter, appellees allege that the issue must be beyond the understanding of average laymen to permit expert witness opinion testimony and in this case the questions posed to the highway patrolman were not beyond the understanding of average laymen. Regarding qualifications of the witness as an expert, appellees assert that it is for the trial judge, in the proper exercise of his discretion, to determine whether a witness is competent to testify as an expert. Thus, it is contended that the nature of the questions regarding the cause of marks on the highway and the cause of the accident were issues for the jury and the court properly refused to permit the witness to usurp the function of the jury and to speculate and opine as to the ultimate facts in the case.

Although it is noted in Udall, Arizona Law of Evidence § 21 (1960), that the traditional rule prohibits an expert from giving an opinion on an ultimate fact to be decided by the jury, it is further recognized by Udall, supra, at page 35: ¹

'The modern trend, however, is against a strict exclusion of testimony solely because it amounts to an opinion upon an ultimate fact. An Arizona decision has suggested that courts often make no distinction between evidential and ultimate facts subject to expert opinion, since it is considered more important to get to the truth of the matter than to quibble over distinctions which are in many instances impracticable. Accordingly, in many cases experts have been permitted to state facts known to them because of their expert knowledge, though the testimony involved one of the ultimate facts to be determined by the jury. This is especially applicable where the ultimate fact is one the jury cannot properly appreciate and evaluate without benefit of expert opinion.'

One of the ultimate facts in this case was determination of what caused the accident. This determination, in turn, partially depended upon a determination of what caused certain black marks and gouges on the highway. We have previously noted that the highway patrolman was permitted to testify as to what he witnessed at the scene of the accident but was not permitted to express his opinion as to what caused the marks on the highway or caused the accident. The trial judge indicated several times that sufficient foundation had not been laid to link the marks and gouges on the highway with the accident and that there was no evidence showing that the marks and gouges were not on the highway prior to the accident or were not caused subsequent to the accident. Thus, without further foundation, the trial court would not permit this witness to render an opinion.

We believe that Udall, supra, at pages 37--38, indicates the difficulties with which trial judges are concerned in allowing such testimony.

'A properly qualified expert who did not witness the accident has been permitted to give his opinion as to the speed of an automobile based on skid marks, damage to the vehicles, injuries and other effects of a collision. But so many variables are involved in trying to reconstruct an accident that the court should carefully scrutinize the qualifications and the information of a non-eyewitness expert who undertakes to offer opinions beyond those involving speed, skidmarks and point of impact.'

We are cognizant of the fact that where facts can be intelligently described to jurors and understood by them and they can form reasonable opinions for themselves, the opinion of expert witnesses will be rejected. Alires v. Southern Pac. Co., 93 Ariz. 97, 378 P.2d 913 (1963); City of Phoenix v. Schroeder, 1 Ariz.App. 510, 405 P.2d 301 (1965). Furthermore, the question of the competency of an expert witness is a matter resting in the sound discretion of the trial court and its exercise will not be reviewed except for abuse. City of Phoenix v. Brown, 88 Ariz. 60, 352 P.2d 754 (1960); Gray v. Woods, 84 Ariz. 87, 324 P.2d 220 (1958); Allied Van Lines v. Parsons, 80 Ariz. 88, 293 P.2d 430 (1956); City...