Rosenbalm v. Winski

• Decision Date: 14 August 1975
• Docket Number: No. 3--973A120,3--973A120
• Parties: Bonnie L. ROSENBALM, Plaintiff-Appellant, v, Michael D. WINSKI, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 249

332 N.E.2d 249

165 Ind.App. 378

Bonnie L. ROSENBALM, Plaintiff-Appellant, v, Michael D. WINSKI, Defendant-Appellee.

No. 3--973A120.

Court of Appeals of Indiana, Third District.

Aug. 14, 1975.

Rehearing Denied Sept. 15, 1975.

Richard F. Joyce, Kizer, Neu, Joyce & Rockaway, Plymouth, for plaintiff-appellant.

Lester Murphy Jr., East Chicago (Murphy, McAtee, Murphy & Costanza, East Chicago, of counsel), for defendant-appellee.

GARRARD, Judge.

Rosenbalm brought suit for the wrongful death of her husband who was killed in an intersection collision. At the time, he was driving a firetruck in response to a call to extinguish a grass fire. The firetruck entered an intersection with U.S. Highway 30 against a red light and collided with Winski's automobile. Trial by jury resulted in a verdict for the defendant.

On appeal Rosenbalm alleges error in the admission of certain opinion testimony and in the giving of an instruction regarding possible contributory negligence on the part of the decedent. We affirm.

At trial an Indiana state police officer who investigated the accident testified to his opinion of the speed of the vehicles at the time of collision. The admission of that testimony is attacked upon two grounds.

First, it is charged that a non-eyewitness may not properly give an opinion as to the pre-impact speed of vehicles involved in a collision.

However, examination of the record discloses that no objection asserting this theory was made at the trial. The record, therefore, presents nothing to review. Furthermore, while some prior Indiana cases support Rosenbalm's proposition, we believe that they fall within the line of authority expressly overruled by our Supreme Court in DeVaney v. State (1972), 259 Ind. 483, 288 N.E.2d 732.

While the point at issue in DeVaney was opinion as to the point of impact, the Court spoke to the per se exclusion of this kind of expert opinion testimony and concluded that henceforth it would be admissible when properly presented. In other words, a properly founded expert opinion on speed, point of impact, mechanical failure, etc. is not inadmissible merely on the ground that the opinion seeks to elicit an 'ultimate fact' or assertedly invades the province of the jury. ¹

The second point raised by Rosenbalm to exclude the opinion regarding speed of the firetruck is that it was based upon hearsay. This objection was asserted at trial and is based upon the following which occurred during preliminary questions asked if the witness before his opinion was admitted:

'Q: Officer, you indicated that you had an opinion of the fire truck speed, is that right?

'A: Yes.

'Q: Did you obtain your opinion from questioning other witnesses?

'A: Partially.

'Q: So your opinion would be based upon what they might have told you?

'A: Partially, yes.'

It has been said that the general rule excludes a direct opinion by an expert where the opinion is based upon reports that are not in evidence or are inadmissible as substantive evidence under the hearsay rule. See: McCormick on Evidence (2d Ed., 1972), at 34.

Many of the older cases simply denounced this as usurpation of the jury function, since in such instances the expert might be said to have determined the credibility of and weighed the evidence of his informants. However, the modern view rejects this notion at least partially upon the ground that the opinion may still be attacked and the jury may choose to discredit it. See: DeVaney.

On the other hand, it is valid to observe that in such instances the jury is asked to accept as probative evidence the witness' conclusion based upon someone's hearsay assertion of a fact which the jury has no basis for finding to be true. Furthermore, if the opinion is actually dependent upon classic hearsay, the expert may lack the knowledge-qualification required for expert opinions. See: Fischer v. State (1974), Ind.App., 312 N.E.2d 904 (transfer denied).

Despite the generalization, it is well recognized that many admissible expert opinions are based, in part, upon items which are technically hearsay, such as stopping distance tables. Ryan v. Payne (Ky., 1969), 446 S.W.2d 273.

In addition, an expert may give his opinion based upon tests not performed by him but by technicians under his direction. Indianapolis, Union Railway v. Walker (1974), Ind.App., 318 N.E.2d 578.

In eminent domain proceedings, expert opinion on valuation regularly rests upon hearsay determinations of the sale price of other parcels of land.

Thus, it may be that the proper generalization recognizes that an expert opinion is not excludable because it is based in part on hearsay, where the hearsay is of a type normally found reliable and is customarily relied upon by the expert in the practice of his profession or area of expertise. Smith v. State (1972), 259 Ind. 187, 285 N.E.2d 275, cert denied, 409 U.S. 1129, 93 S.Ct. 951, 35 L.Ed.2d 261 (1973); Jenkins v. United States (1962), 113 U.S.App.D.C. 300, 307 F.2d 637; but see: Briney v. Williams (1968), 143 Ind.App. 691, 242 N.E.2d 132 (transfer denied), where medical opinion by a non-treating physician is inadmissible when based in part upon history related by the patient. ²

In addition, it would appear that an otherwise validly drawn expert opinion should not be rendered inadmissible merely because somewhere along the way the expert was exposed to an item of hearsay which he may have 'considered' in that it appeared to corroborate or not dispute his conclusion. See: e.g., Trinity Univ. Ins. Co. v. Town of Speedway (1965), 137 Ind.App. 510, 210 N.E.2d 95.

Applying the foregoing to the present case it appears that the officer's opinion was based in part upon undisclosed hearsay reports. It does not appear that the hearsay was of a type regularly found reliable and customarily relied upon, nor does it appear that the opinion was founded independently of the hearsay. It was, thus, error to admit it.

However, under the mandate of Indiana Rules of Procedure, Trial Rule 61, ³ we hold that in this case the error was not reversible. The officer's opinion was that the firetruck was being operated at 30 m.p.h. Six eyewitnesses testified to their appraisal of the truck's speed; one said, 'under 40, about 35'; the second said, '30 to 35'; the third, '35'; the fourth, '40'; the fifth, '20'; and the sixth, 'around 20 to 25'. Accordingly, refusal to reverse upon this error does not appear inconsistent with substantial justice.

Rosenbalm next objects to the admission of the police officer's opinion that it was unsafe for the firetruck to proceed into the intersection.

We first consider whether such opinion evidence is within the DeVaney rule, for if it is, the assignment is disposed of.

Justice Hunter, writing for a unanimous court in DeVaney, considered the traditional proposition that expert opinions on ultimate facts are inadmissible. He stressed the difficulty in defining 'ultimate fact' and quoted McCormick with approval in observing that because of the difficulty of definition, application of the rule is ofttimes:

'. . . unduly restrictive, pregnant with close questions of application and the possibility of misapplication, and often unfairly obstructive to the presentation of a party's case . . .'. (259 Ind. at 490, 288 N.E.2d at 736, 737.)

In addition, the Court rejected the notion that such opinions usurp the jury function, since the cross-examiner remains free to impeach the opinion and the jury is free to reject it.

While we are in wholehearted agreement with the DeVaney rule, we do not perceive that it implies that all conclusions drawn by expert witnesses are thereby rendered admissible at trial.

Professor McCormick, in discussing opinions on the ultimate issues of a case, points out that in reality the terms 'fact' and 'opinion' denote merely a difference of degrees of concreteness of description or a difference in nearness or remoteness of inference, rather than mutually exclusive absolutes. ⁴

Thus, while criticizing the 'ultimate fact exclusion rule', he nevertheless observes:

'Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided or as to the amount of unliquidated damages which should be given. It is believed all courts would exclude such extreme expressions.' (Footnote omitted.) McCormick, supra, at 26.

Broad form conclusions such as 'A is liable'; 'A is at fault'; 'A is guilty of contributory negligence'; should not be allowed as expert opinions. The reason for the exclusion does not lie in the assertion that they are ultimate facts. Indeed they are not. Even apart from the 'fact vs. conclusion' analysis they are inadmissible.

The general rule, long adhered to in Indiana, is that expert opinion is inappropriate on matters within the common knowledge and experience of ordinary men. Equitable Accident Insurance Company v. Stout et al. (1893), 135 Ind. 444, 33 N.E. 623; Brunker v. Cummins (1892), 133 Ind. 443, 32 N.E. 732.

Thus, where the question posed to the expert injects as an element necessary to the answer, the issue of whether a party was negligent or exercising reasonable care, the question becomes objectionable because in the eyes of the law ordinary men and women are capable of making that assessment based upon their common knowledge and experience. In such instances the holding in DeVaney is not at issue. The question is simply not one upon which an expert should testify.

In the case at bar, defense counsel established the witness' experience in driving through red lights on emergency calls and then posed a hypothetical question to seek an opinion whether it was safe for the firetruck to proceed into the intersection at any speed. The opinion was stated that the driver could have proceeded past the red light after determining that it was safe to do so. The officer was then asked if he assumed the same facts plus a collision, whether in his...