Nat Harrison Associates, Inc. v. Byrd
| Citation | 256 So.2d 50 |
| Decision Date | 15 December 1971 |
| Docket Number | No. 71--150,71--150 |
| Court | Court of Appeal of Florida (US) |
| Parties | NAT HARRISON ASSOCIATES, INC., a Florida corporation, and Anna Agness, Executrix of the Estate of Ralph Scialla, Deceased, Appellants, v. Ruth B. BYRD, a Widow, Appellee. |
Michael Jeffries, of Neill Griffin & Jeffries, Fort Pierce, for appellants.
Stephen G. Hayskar, of Carlton, Brennan & McAliley, Fort Pierce, for appellee.
On 19 April 1965 Ruth B. Byrd, the plaintiff, instituted a wrongful death action against Nat Harrison Associates, Inc., a corporation, and Anna Agness as executrix of the estate of Ralph Scialla, deceased, in the Circuit Court for St. Lucie County, Florida, for damages sustained as a result of the alleged wrongful death of her husband, George Benjamin Byrd.
A jury trial which commenced on 14 December 1970 resulted in a verdict in favor of the plaintiff in the amount of $125,000.00.
The defendants' post-trial motions were denied, a final judgment was entered, and defendants brought this appeal.
The major issue here is the propriety of the admission in evidence of certain opinion testimony relating to speed.
On 26 October 1964 a flat-bed truck owned by defendant Nat Harrison Associates, Inc., and operated by Ralph Scialla, was proceeding north on the Florida Turnpike. Around 6:30 in the evening, approximately 17.5 miles north of the Forth Pierce interchange, this vehicle was struck from the rear by a tractor-trailer rig operated by George Benjamin Byrd, the plaintiff's now deceased husband. Mr. Byrd's rig was owned by Leonard Bros. Trucking Company. The Nat Harrison truck was apparently in the outside north bound lane when struck. There were no eye witnesses to the accident, and both drivers were dead by the time anyone arrived on the scene.
Appellants' first point is:
'Whether or not the speed estimates made by Delton Dollar were incompetent evidence?'
The appellants contend that the trial court erred in failing to sustain their objections to three questions put to an expert witness called by appellee relating to the speed of the vehicles at the time of the accident. The expert witness, Mr. Delton Dollar, was offered by the appellee and apparently accepted by the appellants as an expert in the reconstruction of motor vehicle accidents.
During her case in chief, the appellee submitted the following 'hypothetical' questions to the expert in the following order:
(1) '. . . I will refer Mr. Dollar to two photographs, Plaintiff's Exhibit No. 9 and Exhibit No. 6, which are the plaintiff's vehicle and the defendant's vehicle, and ask you, from the extent of the damage as shown in these two photographs can you give an opinion based upon your knowledge of accidents that have taken place, and so forth, as to the speed differential of these two vehicles at the time of the impact?'
(2) '. . . Mr. Dollar, if we assume that the police officer investigating the accident found gouge marks in the road, at the point of maximum debris, and finds at that point also lumber that would have been located on the Nat Harrison vehicle, can you determine and give an opinion as to the speed of the Nat Harrison vehicle at the time that it was struck?'
(3) 'Would you assume, please, that the skid marks extend from the rear of the Leonard Brothers' trailer a distance of 145 feet back along the highway, as you can see there, to the point where they began, based on those, on that assumption, can you give an opinion as to the speed of the trailer?'
When the appellee thereafter sought the witness' opinion based on the hypotheticals, the appellants objected. As to the opinion based on the first hypothetical, the appellants' objection was stated as follows:
'Now, I would object to that, Your Honor, that there not being a proper predicate laid for the witness to give an opinion based on merely those two photographs.'
As to the opinion based on the second hypothetical, the appellants' objection was stated as follows:
'No, sir, my objection is I think he has got to have more of a foundation and personal knowledge of the particular factors involved than what he does here.'
As to the opinion based on the third hypothetical, the appellants' objection was stated as follows:
'I am going to make the same objection, Your Honor, that a proper predicate has not been laid for the witness to give his opinion on this.'
The objections were overruled and the witness expressed an opinion that the speed difference between the two vehicles at the time of impact was between 40 and 60 miles per hour; that the Nat Harrison truck at that time was traveling less than 10 miles an hour, and the speed of the Leonard Brothers' trailer (apparently at the time of impact) was 51 miles an hour.
It is obvious that the combined effect of these three answers made out a prima facie case for the plaintiff by demonstrating that the deceased, at the time of the accident, was traveling at a reasonable rate of speed and that the driver of the vehicle with which the deceased collided was traveling at a slow speed on a high-speed roadway.
Where one desires to make an objection to a question propounded to a witness, the ground of the objection should be stated with specificity, unless the ground for the objection is clearly apparent. Caldwell v. People's Bank of Sanford, 1917, 73 Fla. 1165, 75 So. 848, 852; Atlantic Coast Line R. Co. v. Shouse, 1922, 83 Fla. 156, 91 So. 90, 95. This rule is supported by the notion that the ultimate aim of trial procedure is the development of the truth rather than the obfuscation of it. A specific objection provides the trial judge with a clear-cut issue upon which to rule and the adverse party with an opportunity to meet the objection by restating his question or by any other appropriate method. In our opinion, the foregoing principle eliminates the necessity for an appellate review of the objection to and the court's ruling on the second question quoted above. The objection was insufficient for want of specificity and on appeal should be disregarded for that reason. See Caldwell v. People's Bank of Sanford, supra.
Different considerations prevail with respect to the first and third questions and the trial court's rulings thereon. When an expert is called upon to give an opinion as to past events which he did not witness, all facts related to the event which are essential to the formation of his opinion should be submitted to the expert in the form of a phypothetical question. No other facts related to the event should be taken into consideration by the expert as a foundation for his opinion. The facts submitted to the expert in the hypothetical question propounded on direct examination must be supported by competent substantial evidence in the record at the time the question is asked or by reasonable inferences from such evidence. See Atlantic Coast Line R. Co. v. Shouse, supra; Autrey v. Carroll, Fla.1970, 240 So.2d 474; Sheehan v. Frith, Fla.App.1962, 138 So.2d 76. Adherence to this form for the direct examination of an expert prevents the expert from expressing an opinion based on unstated and perhaps unwarranted factual assumptions concerning the event; facilitates cross-examination and rebuttal; and fosters an understanding of the opinion by the trier of fact.
Once an expert has been qualified to give opinion testimony, the sufficiency of the facts submitted to the expert to permit him to formulate an opinion must normally be decided by the witness himself, at least in the first instance. This of necessity must be the rule because, the trial judge (like an appellate judge) would not ordinarily be in a position to know whether the facts submitted to the expert were sufficient to permit the formation of the expert's opinion. See Myers v. Korbly, Fla.App.1958, 103 So.2d 215, 221. As a corollary to this proposition, deficiencies in a factual predicate submitted to an expert as a basis for an expert opinion, normally relate to the weight and not the admissibility of the opinion. Compare State Road Department v. Falcon,...
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...Cox, 453 So.2d 1171 (Fla. 3rd DCA 1984); DeSantis v. Acevedo, 528 So.2d 461, 462 n. 1 (Fla. 3rd DCA 1988); Nat Harrison Associates, Inc. v. Byrd, 256 So.2d 50 (Fla. 4th DCA 1971); Herman v. State, 372 So.2d 996 (Fla. 4th DCA 1979); Parry v. Nationwide Mut. Fire Ins. Co., 407 So.2d 936 (Fla.......
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Carter v. Moberly
...185 Kan. 694, 347 P.2d 433, 437 (1959); Atkinson v. Mock, 271 Minn. 393, 135 N.W.2d 892, 894 (1965); and Nat Harrison Associates, Inc. v. Byrd, 256 So.2d 50, 55 (Fla.App.1971). See also 46 A.L.R.2d 9 at These cases include decisions in which trial courts have been reversed for excluding suc......
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...rev. denied, 602 So.2d 942 (Fla.1992); Sears, Roebuck & Co. v. McAfoos, 303 So.2d 336, 337 (Fla. 3d DCA 1974); Nat Harrison Assocs. v. Byrd, 256 So.2d 50, 53 (Fla. 4th DCA 1971). There is a very limited and rarely invoked fundamental error exception to this principle of appellate review, na......
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Cross-Examining Causation Experts
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