Kettle v. Smircich

• Decision Date: 25 May 1967
• Docket Number: No. 280,280
• Citation: 415 S.W.2d 935
• Parties: Lester W. KETTLE v. John SMIRCICH. . Corpus Christi
• Court: Texas Court of Appeals

Page 935

415 S.W.2d 935

Lester W. KETTLE v. John SMIRCICH.

No. 280.

Court of Civil Appeals of Texas Corpus Christi.

May 25, 1967.

L. Taylor Zimmerman, of Bonilla, DePena, Reed & Bonilla, Corpus Christi, for appellant.

Guy Allison, Corpus Christi, for appellee.

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that Lester W. Kettle, appellant, plaintiff below, take nothing by his suit against John Smircich, appellee, defendant below.

Plaintiff sued for damages because of personal injuries suffered by him in a motor vehicle accident which occurred on June 5, 1965 in Aransas Pass, Texas. Plaintiff was riding in an automobile owned and then being operated by Mr. Curtis Lee Boykin, which was pulling a trailer and small boat. The Boykin vehicle was travelling in a southerly direction and the defendant's vehicle in a northerly direction on State Highway 35 just prior to the collision between them.

The jury verdict in response to the special issues submitted was in substance as follows: (1) defendant did not fail to keep a proper lookout, (2) not answered (proximate cause), (3) defendant was not operating his vehicle at an excessive rate of speed, (4) not answered (proximate cause), (5) defendant did not operate his vehicle across the center line into his left, or plaintiff's lane of traffic at the time of the collision, (6) not answered (negligence), (7) not answered (proximate cause), (8) defendant did not go to sleep immediately prior to the collision, (9) not answered (negligence), (10) not answered (proximate cause), (11) there was no issue so numbered, (12) at or immediately prior to the collision the vehicle driven by Curtis Boykin was partially in the north bound or defendant's lane of traffic, (13) which was the sole proximate cause of the collision, (14) defendant was acting under an emergency at the time of the accident, (15) defendant acted as an ordinary prudent person would have under the same or similar circumstances. In response to issue No. 16 inquiring concerning an amount for medical and hospital services which would reasonably and necessarily be incurred by plaintiff in the future, the jury answered $10,000.00 . In response to issue No. 17, inquiring concerning an amount which would reasonably compensate plaintiff for various other elements of damage, including past and future physical pain and mental anguish, loss of earnings and diminished earning capacity, as a result of the accident in question, the jury answered $15,000.00. The parties stipulated the amount of past medical expenses.

Appellant asserts four points of error. It is apparent to us that points 2, 3, and 4 do not present reversible error for the reasons hereinafter stated, and this appeal turns upon point number 1.

Appellant's point I asserts in substance that the trial court erred in permitting appellee's witness John Bentley to give opinion evidence as an expert because he was not qualified to do so and that he could not give such opinion or make calculations approximately one year after the accident based upon photographs in evidence and the assumption of facts not in evidence.

Appellant's contention that the trial court erred in permitting Bentley to testify as an expert witness over appellant's objection that he was not shown to be qualified is not well taken. The witness testified in substance that he was an accident consultant; that he had previously served six years, until 1964, with the Texas Department of Public Safety as a highway patrolman and as an investigator, having been designated by the Department as an expert for reconstruction of accidents and as a witness on the trial of cases; that he went to school while in the Department, took police courses in mathematics and in connection with investigation and reconstruction of accidents; that he had formerly served as a Deputy Sheriff; that he was a high school graduate; that while serving in the military service for four and a half years he had technical schooling involving mathematics, electronic theory and mechanics; that the mathematics studies involved equations, vectors and quadrids; that vectors are important in accident analysis, particularly where two vehicles, each with its own course of travel and force conflict and the different forces act against each other; that he was able to calculate and express the kinetic energies for formulas and apply them to vehicles in motion; that as an accident consultant he goes into the field of reconstruction of accidents, the physical damage and physical evidence and the scene involved; that he applies the principles of physics and mathematics in connection with his work; that he has had experience in interpreting pictures, gouges or marks, such as were involved in this case; that while with the Department of Public Safety he investigated, either by himself or with other persons, about 240--250 accidents per year; that on secondary schooling in the Department he had experience with evaluating physical forces, energy, applying kinetic energy formulas, dealing with test skills, reaction time, speed, angles, marks, gouges, and taking pictures; that he studied many controlled tests involving such factors; that he applied his skills to reconstruction of accidents including rotational or broadside tests where cars were rotating or spining; that in 1965 he reconstructed 47 accidents for trial, and in 1966, up to the time of trial on May 18th, he had reconstructed about 44 accidents; that he was able to apply his knowledge of physics and kinetic energy to the physical facts that are available; that he had gone to the scene of the accident involved in this suit with officer McGary (who had investigated the accident shortly after its occurrence) a week or so before the trial and had studied the photographs of the scene and of the vehicles involved, which photographs were admitted into evidence by stipulation; that he heard the testimony of officer McGary on the trial of this case, and also heard part of the defendant's testimony. Thereafter, he gave his opinion as to how the accident happened and particularly as to the point of impact. Before he did so, counsel for appellant conducted a voir dire examination of the witness, during which it was developed that he did not have a college degree in physics or mathematics or other subjects and that most of his experience had been practical. At the conclusion of such voir dire examination the trial court overruled appellant's objection that the witness was not qualified as an expert in traffic, and the witness was allowed to continue his testimony. Among other things, Bentley testified that in his opinion the collision in question occurred in the north bound or defendant's lane of traffic, and that the Boykin vehicle, in which plaintiff was riding, was on its left or wrong side of the highway. That opinion supported the defendant's testimony and was contrary to that of Boykin and the plaintiff.

In the case of Mesa Trucking Company v. King, 376 S.W.2d 863, 868, 869 (Tex.Civ.App., Amarillo, 1964, wr. ref., n.r.e.) where the court passed upon objections to expert testimony similar to those made here by appellant, the court said:

'It has been textually stated in Volume 66 A.L.R.2d 1057 that:

"In a growing number of jurisdictions the courts have held that skilled or expert opinion evidence as to the point of impact or collision is admissible in motor vehicle accident cases upon the ground that a skilled or expert witness can aid the jury in drawing correct inferences from raw and unsorted facts.'

'Also in Volume 2, McCormick and Ray, Texas Law of Evidence, Section 1401, Page 235, it is said:

"The burden of establishing his qualification naturally rests upon the party offering the alleged expert. Whether the person offered possesses the required qualification is a preliminary question to be determined by the trial judge and should not be left to the jury. In the decision of this question our courts have wisely held that the trial judge has a wide discretion not subject to review in the absence of clear abuse.'

'That same text in the same volume at page 220, Section 1395, states:

"Furthermore the controlling cases from...