Lollis v. Superior Sales Co., Inc.

• Decision Date: 10 June 1978
• Docket Number: No. 48717,48717
• Citation: 224 Kan. 251,580 P.2d 423
• Parties: George LOLLIS, Appellant, v. SUPERIOR SALES COMPANY, INC., and Stephen P. Manard, Appellees.
• Court: Kansas Supreme Court

Page 423

580 P.2d 423

224 Kan. 251

George LOLLIS, Appellant, v. SUPERIOR SALES COMPANY, INC., and Stephen P. Manard, Appellees.

No. 48717.

Supreme Court of Kansas.

June 10, 1978.

Syllabus by the Court

1. Under K.S.A. 60-456 the opinion testimony of experts on the ultimate issue or issues is not admissible without limitation. Such testimony is admissible only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.

2. The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of laymen jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible.

3. In an automobile accident negligence case, an expert witness, whether an investigating police officer or other expert, may not state his opinion as to which of the parties was at fault in causing the accident or his opinion concerning what acts of the parties contributed to the accident. (Overruling in part Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954 (1973), and Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974).)

John H. Fields, of Carson, Fields & Boal, Kansas City, argued the cause and was on the brief for appellant.

Gerald L. Rushfelt, of Rushfelt, Mueller, Lamar, Druten & Moran, Prairie Village, argued the cause and was on the brief for appellees.

Gene E. Schroer, of Jones, Schroer, Rice & Bryan, Chartered, Topeka, was on the amicus curiae brief on behalf of the Kansas Trial Lawyers Ass'n.

PRAGER, Justice:

This is a review of a decision of the Court of Appeals affirming the district court in an unpublished opinion. The plaintiff-appellant, George Lollis, brought an action to recover damages for personal injuries sustained in a collision which occurred in Kansas City, Kansas, between a motorcycle driven by the plaintiff and a beer truck driven by the defendant-appellee, Stephen P. Manard, and owned by the defendant-appellee, Superior Sales Company, Inc. The sole question presented for determination is whether the trial court erred in permitting a police officer, who investigated the accident, to testify that his official accident report contained his conclusions that the plaintiff, the driver of the motorcycle, had illegally speeded and followed too closely and that his report did not show any contributing actions on the part of the driver of the beer truck.

The facts in the case are not greatly in dispute and essentially are as follows: On the morning of April 17, 1974, a motorcycle driven by plaintiff Lollis collided with a beer truck driven by defendant Manard. Both Lollis and Manard had been in a grocery store on the southwest corner of 11th and Waverly Streets in Kansas City, Kansas, just prior to the collision. Manard, having completed his deliveries, started the truck engine, turned on his left-turn signal, pulled away from the curb, and proceeded in a southerly direction down 11th Street. Plaintiff Lollis, at approximately the same time, started up his motorcycle which was parked behind the beer truck and proceeded to follow the truck in the same direction. 11th Street is a two-way street, 32 feet in width. The pavement was asphalt and the road surface was dry. The posted speed limit on 11th Street was thirty miles per hour. It is undisputed that the beer truck driven by Manard made a right-hand turn to the west on Greeley Street, a block south of Waverly. Plaintiff's motorcycle collided with the right-rear side of the beer truck. The driver of the truck heard an impact and stopped the truck. Plaintiff and his motorcycle ended up close to the corner of 11th and Greeley near the curb.

The evidence offered by plaintiff Lollis and that of the defendants as to how the collision occurred was in conflict. Plaintiff testified that when the beer truck drove away from the curb it had its left-turn signal on and that the signal was still blinking at a point about halfway down the street toward the corner. Plaintiff, believing that the driver of the beer truck intended to make a left turn, started to pass the beer truck on the right side. At that time, the beer truck was traveling in the middle of the street. There were no parked cars in the area and there were no cars ahead when the plaintiff started past the beer truck. Plaintiff testified that, as the front of his motorcycle became even with the back of the truck, the truck's left-turn signal was still blinking. This was about thirty feet from Greeley Street. At this point, the plaintiff was on the right-hand side of the truck going down the middle of the lane, out about three feet, nine inches, from the curb. After plaintiff passed the rear end of the truck, the beer truck without warning made a right-hand turn. The plaintiff's motorcycle collided with the rear wheels of the truck. At that time, the plaintiff testified that he was driving twenty to twenty-five miles per hour. Plaintiff did not sound his horn. He may have applied his brakes at the time of the collision, but not before. He remembered the truck going over him and being under the wheels, just dragging down the street. Plaintiff had no recollection of where he was located or where the cycle was located, except that he could see both the truck and motorcycle. The plaintiff suffered serious personal injuries. After the accident, he lay on his back looking straight up and could not move. Plaintiff remembered that the driver of the truck came up and said that he had not seen the plaintiff. The plaintiff told the police officer that he was hurting and should go to the hospital. The plaintiff did not tell the police officer how the accident happened. Stated simply, it was plaintiff's theory that the beer truck was proceeding south on 11th Street with its left-turn signal indicating a left turn. Plaintiff then proceeded to pass the truck on the right. The truck suddenly turned into him. The vehicles collided and the motorcycle was dragged by the truck from the point of impact until the truck stopped. The specific acts of negligence relied upon by the plaintiff were that the defendant driver executed an improper right turn, failed to give a proper signal for a right turn, and failed to keep a proper lookout.

Defendant Manard testified that when he left the grocery store after making his delivery, he observed the plaintiff's motorcycle parked behind his truck. He did not recall ever seeing the plaintiff. Defendant entered the truck, started the engine, pulled the brake off, and turned on his left-turn indicator. He checked his rearview mirror and then pulled away from the curb. He let the steering wheel turn the left-turn signal off, and then turned on the right-turn signal. This was about halfway down the block. The beer truck's speed was less than twenty miles per hour. After Manard turned on his right-turn signal, he never turned it off. The beer truck proceeded down 11th Street toward Greeley traveling approximately in the middle of the street. As the beer truck traveled south, the driver did not become aware of anyone behind; he did not hear any horn or screech of brakes. The driver started to turn his wheel to the right as the truck was even with the sidewalk on Greeley Street. As the driver proceeded in his turn, he heard a noise that sounded like broken glass. He stopped, put on his flasher, got out of the truck, and saw the plaintiff in the street. The motorcycle was lying north of the truck on Greeley up against the curb and in the gutter. There was no damage to the rear of the truck and no broken glass. Stated simply, it was the theory of the defendants that the beer truck was proceeding with due care south on 11th Street toward the intersection with its right-turn signal blinking and properly commenced its turn to the right on Greeley Street. The specific acts of contributory negligence relied upon by defendants were that the plaintiff operated his motorcycle at an excessive rate of speed; failed to keep a proper lookout; made an improper attempt to pass on the right side of the beer truck; failed to stop, swerve, or turn aside to avoid a collision; and failed to sound his horn or otherwise signal his intention to pass the beer truck. It should be noted that the defendants did not claim that the plaintiff's motorcycle was following the beer truck too closely.

At the trial of the case, the plaintiff called as his first witness Tommy Smith, a relative of plaintiff's wife, who arrived at the scene after the collision had occurred. His testimony was restricted to a description of the scene and his observations of the plaintiff lying on the street along with the motorcycle. The plaintiff's second witness was Charles Gibson of the Kansas City, Kansas, Police Department, who testified in substance as follows: On April 17, 1974, Gibson was a police officer with the traffic division. He investigated the motorcycle-truck accident involved in this case. Following his investigation at the scene, he prepared a report of accident. Gibson was not familiar with motorcycles and he could not determine from the motorcycle's condition whether it was disabled from operation as a result of damage received in the collision. There was no damage to the truck. Gibson determined the point of impact between the motorcycle and truck to be at the extreme right side of the truck behind the right-dual wheels. No persons at the scene reported that they had seen the collision. There was no debris on the street from the impact itself. The officer observed what he described as skid marks or gouge marks on the street. He measured thirty-nine feet of gouge marks which he described as angling in a westerly direction from their point of beginning to the corner, going in a radius around the corner. The thirty-nine feet of gouge marks were apparently made by the...