Phillips v. Emmons
Decision Date | 02 October 1987 |
Citation | 514 So.2d 1369 |
Parties | Ruby J. PHILLIPS, et al. v. Annie EMMONS. 86-840. |
Court | Alabama Supreme Court |
Greg F. Jones of Wilkins, Bankester & Biles, Bay Minette, for appellants.
John Earl Chason of Chason & Chason, Bay Minette, for appellee.
Appeal by plaintiffs from a judgment for defendant based upon a jury verdict and from the denial of plaintiffs' motion for a new trial. We reverse and remand.
The plaintiffs were Ruby Janice Phillips and Angela Phillips, who sued by her next friend, William Phillips. Alabama Farm Bureau Mutual Casualty Insurance Company was added as a party plaintiff on motion of the defendant, Annie Emmons. Emmons was the driver of a school bus that collided with a vehicle occupied by the plaintiffs, who subsequently brought this action to recover damages.
The sole issue on appeal concerns the admission of certain testimony of Trooper Cecil Myrick relating to the cause of the accident.
Trooper Myrick was called as a defense witness. His testimony revealed that he had investigated the accident and attempted to determine the relative paths of the respective vehicles. He described the scene of the accident and, specifically, the tire tracks that he connected to the paths of the two vehicles. Although he did not witness the accident, Trooper Myrick testified that the vehicles remained at their final resting places and that the parties were still at the scene of the accident when he arrived. Over objection, Trooper Myrick was allowed to testify, in the following exchange, as to "what caused the accident":
The appellant argues that this evidence was inadmissible for three reasons. First, she argues that Trooper Myrick was not qualified to give an opinion as to the "cause" of the accident. Second, she argues that his opinion was speculative and conjectural. Third, she argues that his opinion on the cause of the accident invaded the province of the jury. We need not address all of the grounds appellant argues in support of reversal, because, even if we assume arguendo that Trooper Myrick was qualified to give an opinion as to the cause of the accident, we find that his testimony was, nevertheless, inadmissible inasmuch as it was expert testimony based on facts not in evidence and not within the trooper's firsthand knowledge.
Trooper Myrick, in his testimony, did not respond to any hypothetical questions posed by counsel, nor did he rely on facts in evidence. Rather, his testimony was based solely on his observations while at the accident scene. His testimony thus falls within the "firsthand knowledge rule." This rule "arises out of the general recognition that, in order to testify to certain facts, the witness must have had the opportunity to observe the facts to which he testifies and have actually observed them." C. Gamble, McElroy's Alabama Evidence § 105.01 (3d ed. 1977). Under this rule, Trooper Myrick could have testified as to what he had observed at the scene, i.e., the location of the tire tracks, the description and condition of the roadway, the weather conditions, the final resting place of the vehicles, and the location of any debris, as well as any particular measurements of distances that he might have obtained during his investigation. Worsham v. Fletcher, 454 So.2d 946 (Ala.1984).
The one exception to the "firsthand knowledge rule" relates to opinion evidence of an expert witness. In these cases, it is axiomatic that an expert may base his opinion not only on facts of which he has firsthand knowledge, but also on facts that are assumed in hypothetical questions, Armstead v. Smith, 434 So.2d 740 (Ala.1983), provided that the facts, either known to the expert or hypothesized to him, are in evidence, Romine v. Medicenters of America, 476 So.2d 51 (Ala.1985), or will come into evidence at a later time in the trial, Belcher v. Versatile Farm Equipment Co., 443 So.2d 912 (Ala.1983).
Trooper Myrick did not witness the collision between the two vehicles. His opinions as to the cause of the accident, while based on the evidence of the scene, nevertheless, exceeded the scope of his firsthand knowledge. His opinions were based in part on assumed mental processes and conclusions of both drivers that could not have been derived from his observations of the physical scene. He testified that the bus driver "took continuous, evasive action ... attempting to yield as much of the roadway as possible; applied brakes, [and] steered to the shoulder of [the] roadway." Relative to the appellant, he testified that she "[a]pparently ... continued travel to the most [sic] portion of [the] roadway, collided causing [her vehicle] to veer under [the bus] as the vehicles came to a final rest."
Moreover, his opinions as to the cause of the accident do not coincide with the testimony given at trial by either the plaintiff or the defendant. Additionally, on cross- examination, Trooper Myrick conceded that he did not form his opinions as to the cause of the accident based on conversations with the parties or witnesses to the accident:
Thus, we have a situation in which, even were we to assume that Trooper Myrick was qualified as an expert, his opinions were based upon facts of which he had no...
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Henderson v. State
...was not necessary, because he could have also based his opinion on facts that are assumed in hypothetical questions. Phillips v. Emmons, 514 So.2d 1369, 1371 (Ala.1987); Wesley v. State, 575 So.2d 108 (Ala.Cr.App.1989). to the face. 2 Even if we were to find that it was error to exempt Dr. ......
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Wesley v. State
... ... Versatile Farm Equipment Co., 443 So.2d 912 (Ala.1983)." Phillips v. Emmons, 514 So.2d 1369, 1371 (Ala.1987). "[E]xpert opinions based on facts not in evidence or within the expert's personal knowledge are ... ...
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Maxwell v. State
...knowledge and the facts already in evidence, not on speculation or conjecture. We find this case distinguishable from Phillips v. Emmons, 514 So.2d 1369, 1372 (Ala.1987) in which the Alabama Supreme Court stated that, "the admission of an expert's opinion testimony as to the 'apparent' caus......
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