Lee v. Hartwig, WD

• Decision Date: 22 December 1992
• Docket Number: No. WD,WD
• Citation: 848 S.W.2d 496
• Parties: Amber Nicole LEE, et al., Appellants, v. William I. HARTWIG, Respondent. 45198.
• Court: Missouri Court of Appeals

Page 496

848 S.W.2d 496

Amber Nicole LEE, et al., Appellants, v. William I. HARTWIG, Respondent.

No. WD 45198.

Missouri Court of Appeals Western District.

Dec. 22, 1992.

Application for Transfer Sustained Dec. 22, 1992.

Case Retransferred March 23, 1993.

Court of Appeals Opinion Readopted March 26, 1993.

J. Kirk Rahm, Rahm, Rahm & Koenig, P.C., Warrensburg, Michael W. Manners and P. Kevin Blackwell, Paden, Welch, Martin & Albano, P.C., Independence, for appellants.

Andrew H. McCue, Campbell, Holt & McCue, Kansas City, for respondent.

Before LOWENSTEIN, C.J., and BERREY and SMART, JJ.

SMART, Judge.

This wrongful death action concerns the shotgun-blast death of Larry Lee, who was mistaken for game by his neighbor while both were hunting for turkeys in a wooded area in Carroll County. Family members of Mr. Lee sued William Hartwig, contending Mr. Hartwig negligently killed Mr. Lee. Following a trial, the jury found neither the deceased nor Mr. Hartwig were at fault, assessing zero percent fault to both. The family of Mr. Lee appeals, contending that the court erred in failing to direct a verdict for plaintiffs, and in unduly restricting the cross-examination of defendant's expert. Judgment affirmed.

William Hartwig went hunting early on the morning of October 14, 1985, on wooded land in Carroll County. He was hunting alone. Mr. Hartwig set out a decoy and was sitting on the ground with his back against a tree, calling for turkeys. Mr. Hartwig testified that he heard what he thought was a turkey calling in response to his call. The sound seemed to be behind him and to his left. When asked about his actions upon believing a turkey was nearby, he responded: "I raised up real slow, and I turned around, and that's when I saw what was in my mind a turkey, and that's when I shot." He described his perception as follows: "Well, in my mind what I saw was like a turkey's head, kind of greenish-blue, and maybe a little black, and I just thought it was a turkey." He said he saw the object "bob" at least twice, slowly. Describing his conduct later in his testimony, he said, "I seen this object move two or three times, so I flipped off the safety and shot it." On cross-examination he said, "when I turned around, I was looking for movement ... when it bobbed like a turkey a couple of times or more, and when it went down, I did shoot." His pre-trial deposition included the following statement (received in evidence at trial): "When I got ready to shoot, I was sitting on the ground, and I scooted up and had my back against that tree, and I scooted up against that tree, and in one motion I turned around and looked and seen what I thought in my mind was a turkey, and I fired."

When Mr. Hartwig went to find his game, he found the body of Larry Lee on the ground. Mr. Lee had received a shotgun blast in the back, shoulder, head, and side of the face. Mr. Lee's body was approximately 55 feet from where Mr. Hartwig had discharged his weapon. Mr. Lee was either already dead, or expired shortly thereafter while Mr. Hartwig was attempting to get help.

The cross-examination of defendant's expert witness

Plaintiffs contend on appeal that the trial court erred by unduly restricting counsel for plaintiffs from cross-examining defendant's expert witness as to opinions previously expressed by said expert in his deposition testimony. In a pre-trial deposition, the hunting safety expert witness of defendant Hartwig acknowledged on cross-examination that Hartwig was "negligent" in firing his gun "without properly identifying his target."

During his testimony at trial, the expert, Mr. Staton, testified that turkey hunting is considered the most dangerous hunting sport in the United States. Turkeys tend to like areas of thick timber. Turkey hunters generally wear camouflage clothing and hunters often duplicate the sounds made by turkeys. "Hunter orange" has not generally been worn by turkey hunters because turkeys are not color blind (as are some other types of game) and the bright colors may make it more difficult to attract turkeys.

Mr. Staton testified that it would be "wrong" for Mr. Hartwig to have identified a turkey by sound, color or movement. He stated that a safety rule dictates that the hunter must be sure of his target before he pulls the trigger. The hunter should never allow excitement to affect his behavior. He was asked to express an opinion as to whether William Hartwig exercised the care that "a very prudent turkey hunter would have exercised under the same or similar circumstances," assuming, for purposes of the question, that Mr. Hartwig "saw a dark peaked, what he believed to be a turkey head, bobbing up and down at least twice, at the time he fired." Mr. Staton stated that if Mr. Hartwig had heard a sound, or had seen a color, or had seen movement of a bush, and had fired only on the basis of any of those things, Mr. Hartwig would clearly have failed to exercise the care that a "very prudent" turkey hunter would have exercised. However, said Mr. Staton, if the question required him to assume that Mr. Hartwig believed that he actually saw a turkey, and then fired, he could not say whether or not the degree of care exercised by Hartwig was appropriate.

On cross-examination, Mr. Staton acknowledged that one of the "Ten Commandments of Firearm Safety" which he teaches is the commandment to "be sure of your target before you pull the trigger." Mr. Staton further acknowledged that Mr. Hartwig violated that commandment. Plaintiff's counsel then asked Mr. Staton whether Mr. Hartwig was "negligent" by violating the commandment to be sure of one's target. The court sustained an objection that plaintiffs' question was "calling for a legal conclusion that is in the language of the court."

Plaintiffs contend it was error for the court to restrict the questioning on cross-examination because plaintiffs were entitled under § 490.065, RSMo Supp.1991 to elicit an opinion from the expert as to whether Hartwig was "negligent." Defendant contends that the trial court properly sustained the objection because the question improperly called for a legal conclusion.

Section 490.065 provides that testimony by an expert witness "is not objectionable because it embraces an ultimate issue to be decided by the trier of facts." This statute clearly allows an expert to testify as to his opinion concerning an ultimate issue, such as whether a party was negligent. The term "negligence" should be defined in the questioning so that it can be ascertained whether the standard for determining "negligence" which is used by the expert is the same standard to be applied by the jury under the instructions of the court. When the legal term "negligence" is defined in accordance with the applicable jury instruction, the legal issue of negligence becomes an ultimate fact issue for the trier of fact. Expert testimony is not admissible on issues of law. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 957 (1933); 7 Wigmore, Evidence § 1952 (Chadbourn rev. 1978). Under § 490.065, testimony on ultimate fact issues is admissible for the guidance of the jury in their fact finding mission. Neither juries nor expert witnesses are permitted to manufacture their own definitions of operative legal terms. Those definitions are provided by the law.

We are mindful § 490.065 permits an expert to give testimony in opinion form. However, the opinion must be based upon the established standard of care and not upon a personal standard. The question must be phrased as to leave no doubt that the expert is basing the opinion on well recognized standards.

Dine v. Williams, 830 S.W.2d 453, 457 (Mo.App.1992). Here, plaintiffs' counsel did not provide the definition of the word "negligence" in the immediate context of the question. ¹ While Mr. Staton may have understood the definition of "negligence" which he was to apply in answering the question, the jury might well not have. Reasonable discretion must be allowed to the trial judge in determining whether adequate definition of an operative legal term has been provided. The trial judge is in the best position to determine the risk that the jury will be confused. It was not an abuse of discretion to sustain the objection, in view of the failure of either party to define the term "negligence." The question was phrased in terms of "inadequately explored legal criteria." 1 McCormick, Evidence § 12, at 50-51 (4th ed. 1992). Plaintiffs suggest on appeal that the lack of legal criteria is solved by the fact that the court, in the jury instructions, defines the term negligence. This misses the point. Without a definition of negligence supplied in the context of the particular question and answer, the jury may not be able to know what the witness means by the word "negligence," although it may later find out what the court means by that term.

Plaintiffs further contend that the court should have allowed them to pursue this line of questioning because the questioning was designed to impeach Mr. Staton by showing prior inconsistent statements in his deposition testimony, in which Mr. Staton appeared to acknowledge that Mr. Hartwig was "negligent." Since Mr. Staton testified on direct that he did not have an opinion as to whether Hartwig exercised the "care that a very prudent turkey hunter would have exercised under the circumstances," plaintiffs would have been entitled to ask about the apparently contradictory deposition testimony had the proper foundation been laid. The fact that neither Staton nor plaintiffs' counsel, at the time of Staton's deposition testimony, defined the word "negligence" (nor was there an objection at that time on the basis of lack of definition) would not prohibit its use where the definition intended by Staton can be explored in his court testimony, and can be compared to the legal definition. However, plaintiff did not lay the proper foundation for impeachment by prior inconsistent statement.

The foundation to...