Pavlos v. Albuquerque Nat. Bank

• Court: Court of Appeals of New Mexico
• Writing for the Court: WOOD; SPIESS; SUTIN
• Citation: Pavlos v. Albuquerque Nat. Bank, 82 N.M. 759, 487 P.2d 187, 1971 NMCA 96 (N.M. App. 1971)
• Decision Date: 18 June 1971
• Docket Number: No. 612,612
• Parties: , 56 A.L.R.3d 558 Arnold G. PAVLOS and Catherine Pavlos, individually and as mother and next friend of Christina Pavlos, Plaintiffs and Counter-Defendants, Appellees, v. ALBUQUERQUE NATIONAL BANK, Executor of the Estates of Bernard Brint and Rebecca Brint, Defendant and Counter-Claimant, Appellant. ALBUQUERQUE NATIONAL BANK, Administrator of the Estate of Claire Brint, Deceased, Plaintiff, v. Arnold G. PAVLOS, Defendant.

Page 187

487 P.2d 187

82 N.M. 759, 56 A.L.R.3d 558

Arnold G. PAVLOS and Catherine Pavlos, individually and as mother and next friend of Christina Pavlos, Plaintiffs and Counter-Defendants, Appellees, v. ALBUQUERQUE NATIONAL BANK, Executor of the Estates of

Bernard Brint and Rebecca Brint, Defendant and

Counter-Claimant, Appellant.

ALBUQUERQUE NATIONAL BANK, Administrator of the Estate of Claire Brint, Deceased, Plaintiff, v. Arnold G. PAVLOS, Defendant.

No. 612.

Court of Appeals of New Mexico.

June 18, 1971.

Eugene E. Klecan, James T. Roach, Julius M. Wollen, Albuquerque, for appellant.

Charles G. Berry, O. L. Puccini, Jr., McAtee, Marchiondo & Berry, Albuquerque, for appellees.

OPINION

WOOD, Judge.

The appeal in this automobile accident case involves (1) the exclusion of nonexpert opinion testimony; (2) a directed verdict against defendant on the issue of liability; and (3) a directed verdict against the non-driver co-owner of the car who was present in the car when the accident occurred. The appeal is from the judgment in favor of Catherine Pavlos.

The Pavlos vehicle was proceeding in a southerly direction within its lane of travel. The Brint vehicle was approaching the Pavlos vehicle from the south. The Brint vehicle was observed coming across the highway until it was approximately five feet in the lane of travel of the Pavlos car. This maneuver by the Brint car was in a normal manner; that is, not erratically. The Brint vehicle then moved back into its proper lane, again in what appeared to be in a normal manner. It then swerved diagonally across the highway.

The driver of the Pavlos car had observed the Brint car when it first crossed into the lane of travel of the Pavlos car. The driver of the Pavlos car started slowing his vehicle and moved to the right. The collision between the cars occurred at, or slightly west of, the western edge of the lane of travel for southbound vehicles. The point of impact on the Pavlos car was the left front, on the Brint car the point of impact was at the doorpost between the front and back doors on the right-hand side of the car.

The accident happened in daylight. The road was straight but 'hilly.' The road surface was dry. All witnesses who testified on the point said it was windy.

Mr. and Mrs. Brint died from injuries suffered in the collision. Mrs. Brint was driving. It was stipulated that Mr. and Mrs. Brint were the owners of the car.

Exclusion of non-expert opinion testimony.

Defendant attempted to present evidence, through the witness Teague, that wind conditions caused the Brint vehicle to swerve across the highway into the path of the Pavlos car. No attempt was made to qualify Teague as an expert on wind conditions or as to the effect of wind on the Brint car. His opinion was asked as a non-expert.

In presenting this issue, defendant argues that non-expert testimony may be received in certain instances. We agree. State v. Cooley, 19 N.M. 91, 140 P. 1111, 52 L.R.A.,N.S., 230 (1914) holds that where descriptive language is inadequate to convey the precise facts to the jury, or the bearing of the facts on the issue, the description of the witness must of necessity be allowed to be supplemented by his opinion. See also Skala v. N.Y. Life Ins. Co., 24 N.M. 78, 172 P. 1046 (1918). As stated in Padgett v. Buxton-Smith Mercantile Company, 262 F.2d 39 (10th Cir. 1958), cert. denied 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961): '* * * all non-expert opinion and impression evidence is competent if it is necessary or appropriate to reproduce the witness' knowledge of the pertinent facts. * * *'

Some of the New Mexico decisions applying this non-expert opinion rule are: State v. Chaves, 77 N.M. 274, 421 P.2d 796 (1966)--experienced lay witness testified as to reaction of narcotics drug users; State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966)--insanity; State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964 (1959), and Bunton v. Hull, 51 N.M. 5, 177 P.2d 168 (1947)--speed; Skala v. N.Y. Life Ins. Co., supra--despondent mood; State v. Cooley, supra--appearance of friendly relations.

The issue here is not whether, as a general proposition, non-expert opinion may be received; the issue is whether a sufficient basis was presented to permit receipt of the non-expert opinion.

Teague, driving south about one-fourth mile behind the Pavlos vehicle, was on a downhill slope and had a view of the area where the accident occurred. He saw some of the events which took place shortly before the collision and also saw the collision. He testified the wind was blowing 'strong,' that there were cuts 'all along there' that '* * * would cause the wind to slack up its speed anywhere in there.' He also testified that at the place where the accident occurred the road was not between hills or cliffs close to the road.

Teague testified he took the '* * * ordinary precaution you take with driving with the wind on your side. * * *' '* * * (T)here were dust devils all down through there.' There was a dust devil '* * * coming in that area right about the time of the impact. * * *' The two cars were approaching and '* * * the northbound car was in its lane and the next moment I saw it there was an impact, * * * and dust right at that point of impact.' Teague couldn't state the angle of the Brint car as he approached, but when he got to the accident scene the Brint car '* * * was straight across the road, * * * it was east and west.'

After the above evidence was received, defendant tendered the following question and answer:

'Q. Mr. Teague, based upon what you observed there at the scene, and what you had experienced in the way of weather conditions and all other factors, and based upon your prior driving experience, do you have an opinion as to what caused the northbound car to go over into the southbound lane?

'A. All through that area there is these cuts, as I have described, and my opinion is as she was coming out of one of these cuts one of the gusts hit her car and caused her to swerve into that lane. That is my only conclusion. It was like an unavoidable accident as far as I am concerned.'

The trial court correctly refused to permit this question and answer in evidence. In so holding we disregard the following: (1) the fact that we have no idea what was meant by 'all other factors;' (2) the fact that the evidence of prior driving experience was only that Teague was familiar with the road, having 'traveled' it several times; and (3) that the answer, 'like an unavoidable accident' raises a question as to an inadmissible opinion on a matter of law. See Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, 84 A.L.R.2d 1269 (1960).

We consider only that portion of the question concerning Teague's observations at the scene and his experience 'in the way of weather conditions.'

In each of the New Mexico cases cited above on the non-expert opinion rule, personal observation is a key factor in permitting the opinion. 7 Wigmore, Evidence § 1928, at 24 (3rd ed. 1940), in arguing for the non-expert opinion rule which New Mexico has adopted, bases his justification for the admission of such testimony on the personal observations of the witness.

An examination of Teague's testimony reveals that he never testified that he observed a cut near the accident scene, never said a dust devil was near the accident scene or the Brint car and never testified that he observed the movement of the Brint car when it left its lane of travel and moved across the highway to the point of collision. His observations as to wind conditions at the scene simply are too general. His testimony is about 'anywhere in there;' 'all through there;' 'in that area.' The evidence is that the area of visibility was up to two miles for a car driving to the south. Teague's observation testimony about wind conditions is never applied to the Brint car near the accident scene.

Specifically, on the foundation laid at the time the question and answer was tendered, Teague's opinion was speculative. Such a speculative opinion was properly excluded. See Fitzgerald v. Fitzgerald, 70 N.M. 11, 369 P.2d 398 (1962); Adamson v. Highland Corporation, 80 N.M. 4, 450 P.2d 442 (Ct.App.1969). Compare Bunton v. Hull, supra.

The only evidence as to Teague's experience as to whether conditions, apart from that included in his 'observation' testimony, is that he was observing the ordinary precaution taken in driving with the wind on your side. There is no evidence as to the effects of wind on the Brint car, nor evidence of wind conditions in the vicinity of that car. Nor is there evidence as to Teague's experience with wind conditions similar to the conditions he observed immediately prior to the accident. Compare the testimony as to the plaintiff's observations of the effects of wind in Wood v. Michigan Millers Mutual Fire Insurance Co., 243 N.C. 158, 90 S.E.2d 310 (1955). Teague's 'ordinary precaution' testimony is not a basis for an opinion as to the effects of wind on the Brint car because there is no testimony as to the effect of wind either on the Brint car or cars generally. Specifically, there is no testimony concerning 'experience.' Compare State v. Chavez, supra.

The trial court did not err in refusing the tendered question and answer. After this ruling, defendant then retendered a question to a state policeman concerning signs warning of gusty winds. The objection to this question was properly sustained because the question was too broadly framed. The accident happened 20 miles south of Socorro. The question was directed to signs twenty-five miles in either direction from the accident scene, and then changed to ask about signs from Socorro on the north to Truth or Consequences on the south, a distance of approximately 72 miles. With the question directed to such distances, the trial court could, in its discretion, properly refuse to permit the question absent some showing as to the relevancy of signs at those distances. C...