McCraney v. Kuechenberg, 468A65

• Decision Date: 10 June 1969
• Docket Number: No. 468A65,No. 1,468A65,1
• Citation: 144 Ind.App. 629,248 N.E.2d 171
• Parties: Charles E. McCRANEY, as Guardian of the Estate of Stephen Michael McCraney, an Incompetent, Appellant, v. Margaret R. KUECHENBERG, Appellee
• Court: Indiana Appellate Court

Page 171

248 N.E.2d 171

144 Ind.App. 629

Charles E. McCRANEY, as Guardian of the Estate of Stephen Michael McCraney, an Incompetent, Appellant, v. Margaret R. KUECHENBERG, Appellee.

No. 468A65.

Appellate Court of Indiana, Division No. 1.

June 10, 1969.

Clarence Borns, Thomas E. Kotoske, Call, Call, Borns & Theodoros, Gary, for appellant.

Robert J. Addison, Clarence J. Greenwald, Gary, for appellee.

SULLIVAN, Judge.

On April 15, 1968, plaintiff-appellant filed his transcript and assignment of errors. On May 31st, 1968, said appellant filed a petition to make additional marginal notes in said transcript. On the same date, appellee filed her motion to dismiss or in the alternative to affirm the judgment below, alleging as grounds thereof that marginal notes were not contained in the transcript as required by Indiana Supreme Court Rule 2--5 and that appellant, as guardian of the Estate of Stephen Michael McCraney, an incompetent, was not a party to the judgment and therefore has no appealable interest and alleging further that there should have been joined as an additional party appellee the original co-defendant. On July 30, 1968, this Court entered an Order authorizing appellant to make additional marginal notations and on said date overruled appellee's motion to dismiss but held in abeyance its ruling upon appellee's motion to affirm.

The appellant, as the father and next friend of Stephen Michael McCraney, a minor, brought this action for personal injuries against appellee, Margaret R. Kuechenberg and against Alfred J. Kuechenberg, as co-defendants. When Stephen Michael McCraney was later adjudged incompetent appellant was appointed guardian of his estate and was substituted as plaintiff below. During the course of the trial, the cause was dismissed against the co-defendant, Alfred J. Kuechenberg, without objection by this appellee. By reason of the facts hereinabove set forth, it is our opinion that said motion to affirm should be and it is hereby overruled.

As to the merits, the evidence discloses that on the night of February 19, 1963, plaintiff-appellant's ward was walking alternately on and off the travelled portion of a dark and narow public highway in Lake County, Indiana, with a friend, both of whom were dressed in dark clothing. Said ward was walking in or adjacent to the same lane as traffic approaching from his rear despite the fact that there was a path which would permit the boys to walk 'Indian file' and not encroach on the blacktop highway. There was further evidence that the defendant was operating a motor vehicle approaching the boys from the rear and that when she noticed the boys in front of her car she immediately applied her brakes, laid down 35 feet of skid marks, but was unable to avoid striking Steven Michael McCraney.

At the conclusion of plaintiff's evidence the trial court refused to direct a verdict for the defendant-appellee. Following submission of defendant's evidence the jury returned a verdict for defendant upon which judgment was entered. The overruling of appellant-plaintiff's motion for new trial is here assigned as error.

Appellant's first contention relates to the refusal of the trial court to permit a deputy sheriff who was not an eyewitness to give an opinion as to the speed of defendant's automobile at the time of the collision.

Not unaware of our holdings in Briney v. Williams (1968), Ind.App., 242 N.E.2d 132; McDonald v. Miller (1968), Ind.App., 242 N.E.2d 39; and Presser v. Shull (1962), 133 Ind.App. 553, 181 N.E.2d 247, we nevertheless do not here hold that law enforcement officers cannot be qualified by training, experience, or both, so as to properly testify concerning their opinions in various facets of accident investigation or reconstruction. See generally, Rimco Realty & Investment Corp. v. LaVigne (1943), 114 Ind.App. 211, 50 N.E.2d 953; 13 I.L.E. Evidence §§ 254 and 291; nor do we here rule upon the question of admissibility of opinion evidence by a non eye-witness relative to speed under circumstances different than here presented. See generally, Kuhn v. Stephenson (1928), 87 Ind.App. 157, 161 N.E. 384; Lake Erie & Western R.R. Co. v. Moore (1912), 51 Ind.App. 110, 97 N.E. 203; and Rump v. Woods (1912), 50 Ind.App. 347, 98 N.E. 369. In a proper case such evidence might well be admitted and lift to the trier of fact to weigh in the light of all other evidence upon that issue. We do hold, however, that exclusion of the witness' opinion was proper here.

The specific question put to the witness was as follows:

'Do you have an opinion based on the skid marks, the evidence that you have observed at the point of impact, your experience as a police investigator as to whether or not this woman was exceeding the speed and if so what speed was she going at?'

Appellee's objection to the question was that:

'There is no basis for such an opinion to be given by this officer as an expert's opinion.'

It is appellant's contention that exclusion of this deputy's testimony was erroneous because all the evidence showed him to be a competent expert and because appellee-defendant did not negate by her own evidence or by cross-examination the 'prima facie' showing of competence and qualification. In this regard, suffice it to say that the burden of establishing the qualifications of a witness in order to permit him to testify as an expert is upon the party seeking to have such evidence admitted. It is not the burden of the adversary to prove that said witness is not qualified. 31 Am.Jur.2d, Expert & Opinion Evidence, § 31. Further, whether any such witness is qualified to testify as an expert is for the determination of the trial court whose decision will be set aside only where there is a manifest abuse of discretion. Chicago & Erie R. Co. v. Monesmith (1941), 110 Ind.App. 281, 37 N.E.2d 724.

To accept appellant's contention would require us to hold that a deputy sheriff with eight years law enforcement experience, only three of which were devoted to accident investigation, is, as a matter of law, qualified to testify as an expert upon the speeds of motor vehicles under any and all circumstances. We cannot and will not do so. See Indiana Union Traction Co. v. Hiatt (1916), 65 Ind.App. 233 at 248, 114 N.E. 478, 115 N.E. 101.

Appellant did not address himself to the related but distinct question of the foundation laid for the question posed despite the fact that appellee's objection was thus confined in that it was directed solely to the 'basis for such opinion. Compare Carthage Turnpike Co. v. Andrews (1885), 102 Ind. 138, 1 N.E. 364.

Whether a witness' sources of information are sufficiently reliable to warrant reception of an opinion is for the trial court in the exercise of its discretion to determine and we hold that the admissibility of such opinion is necessarily dependent upon the laying of a proper factual foundation. Western & Southern Life Ins. Co. v. Danciu (1940), 217 Ind. 263, 26 N.E.2d 912, 27 N.E.2d 763; Whittaker v. VanFossan (4th Cir. 1961) 297 F.2d 245; Ross v. Newsome (5th Cir. 1961) 289 F.2d 209; Chesapeake & Ohio Ry. v. Schlink (6th Cir. 1960) 276 F.2d 114; 32 C.J.S. Evidence § 546(63). The question posed to the witness here did not include sufficient physical facts to justify an opinion as to speed by any non eye-witness, expert or otherwise. Nor did the prior evidence establish such physical facts.

In the case before us the witness' testimony prior to the proffered opinion dealt with his knowledge subsequent to the accident concerning weather and road conditions, degree of darkness, presence of skid marks and debris, distance from such debris where the automobile was found at rest, the apparent distance that plaintiff-appellant's ward was thrown by impact and the portions of the vehicle which were damaged.

There are other relevant factors indispensable here to a probative opinion on speed. Such factors may include, but are not necessarily restricted to, the weight and load of the vehicle as well as its condition and that of its brakes and tires. See Whittaker v. VanFossan, supra, and Ross v. Newsome, supra. Even if the officer were competent to render an opinion as to speed such opinion would not be admissible if he failed to take into account every factor essential to the formulation of that opinion. The specific question posed to the officer here, even when coupled with his prior testimony, lacked the requisite physical elements or foundation to allow any opinion, expert or otherwise concerning speed.

Appellant next contends that the giving of appellee-defendant's instruction concerning the doctrine of 'sudden emergency' was improper. Appellant reasons that because there was some evidence of negligence by defendant the doctrine of sudden...