McMichen v. Moattar, A96A0118
| Decision Date | 02 May 1996 |
| Docket Number | No. A96A0118,A96A0118 |
| Parties | McMICHEN v. MOATTAR. |
| Court | Georgia Court of Appeals |
Hughes & Gibson, Ralph E. Hughes, Clarkston, for appellant.
Harper, Waldon & Craig, Thomas D. Harper, Atlanta, Sharon W. Ware & Associates, Lynn D. Heath, Tucker, for appellee.
Before McMURRAY, P.J., and JOHNSON and RUFFIN, JJ.
Mildred McMichen sued Iman Moattar for injuries she sustained when the car Moattar was driving struck her as she walked across a five-lane highway. Two eyewitnesses to the accident and the investigating officer testified at trial. The jury returned a verdict in favor of Moattar. McMichen moved for a new trial, arguing that the trial court, over objections, erroneously admitted certain opinion testimony from Poland and the investigating officer. The trial court denied McMichen's motion, and she appealed. For reasons which follow, we reverse.
1. McMichen asserts that the trial court erred in admitting testimony from the investigating officer concerning the cause of the accident.
The record shows that over McMichen's objection, the trial court allowed the following testimony from the investigating officer: Under the circumstances of this case, we agree that the trial court erred in admitting this testimony.
In denying McMichen's motion for new trial, the trial court relied on Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga.App. 385(3), 414 S.E.2d 521 (1991). Although we find that the legal principles expressed in Clark control the issue in this case, the trial court misapplied those principles.
In Clark, we found that as a general rule, where an investigating officer's training and experience qualify him as an expert, it is proper for the officer to testify concerning the cause of an accident. Id. at 392, 414 S.E.2d 521. The trial court in this case applied that general rule in admitting the investigating officer's testimony. However, our analysis in Clark did not stop there. In Clark, we also discussed whether the subject of the officer's opinion was a proper one for opinion testimony. Even in light of the general rule expressed above, Id.
This same principle was more recently espoused in Emory v. Dobson, 206 Ga.App. 482, 426 S.E.2d 50 (1992). There, we affirmed the trial court's order prohibiting the parties from asking the investigating officer who caused the collision. We found that the officer was properly allowed "to testify fully about what he observed at the accident scene and to opine based on that evidence about how the collision occurred." Id. at 483-484, 426 S.E.2d 50. However, under the facts of that case, we concluded that questions concerning who was at fault Id. at 484, 426 S.E.2d 50.
It is apparent from both of these cases that a trial court's determination regarding admission of an investigating officer's testimony concerning the cause of an accident should depend in part on the specific facts of the case. In some cases, the circumstances may permit the officer to describe with clarity what he observed and how the collision occurred. In such cases, jurors are likely able and should be permitted to reach their own conclusions as to who was at fault. See, e.g., Smith v. Fee, 197 Ga.App. 483, 398 S.E.2d 801 (1990) ().
The record in this case shows that the officer's conclusion was unnecessary and improper testimony. The collision involved only Moattar's car and the defendant. Both eyewitnesses and the officer testified concerning their observations of how the accident occurred. From this testimony, the jurors should have been able to reach their own conclusions as to who was at fault. See Emory, supra. Because the subject of the officer's opinion was not a proper one for opinion testimony, the trial court erred in admitting it over McMichen's objections.
2. Since the issue may arise upon retrial, we address McMichen's contention that the trial court erred in admitting certain opinion testimony from eyewitness Thomas Poland. The record shows that over McMichen's objections, the trial court permitted the following testimony during Moattar's cross-examination of Poland: ...
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