Seal v. Miller, 89-CA-0637

• Decision Date: 22 July 1992
• Docket Number: No. 89-CA-0637,89-CA-0637
• Citation: 605 So.2d 240
• Parties: Paula Suzette SEAL v. Jeffrey MILLER.
• Court: Mississippi Supreme Court

Page 240

605 So.2d 240

Paula Suzette SEAL v. Jeffrey MILLER.

No. 89-CA-0637.

Supreme Court of Mississippi.

July 22, 1992.

Harry R. Allen, Mark W. Garriga, Allen Cobb & Hood, Gulfport, for appellant.

Colette A. Oldmixon, David R. Smith, Smith Smith Tate & Cruthird, Poplarville, Thomas D. McNeese, Aultman Tyner McNeese & Ruffin, Columbia, for appellee.

Before HAWKINS, P.J., and BANKS and PITTMAN, JJ.

BANKS, Justice, for the Court:

I.

This case comes to us on appeal from the Circuit Court of Pearl River County, where on October 29, 1987, Jeffrey Miller filed a complaint for damages against Paula Seal alleging inter alia that Seal negligently drove his car on January 8, 1987, causing a one-car accident which left him severely injured. Seal, conversely, alleged by counterclaim that Miller was driving the car the day of the accident and that she was also injured. Prior to the jury trial on October 12, 1988, Miller and Seal stipulated to the amount of damages each suffered.

Because the accident left both parties partial amnesiacs, the sole issue before the circuit court was the identity of the driver. The jury returned a verdict in favor of Miller, and Seal appeals, assigning as error, the allowance of an investigating officer and ambulance attendant to express opinions, without being qualified as experts, the limiting of the scope of the testimony of one of Seal's expert witnesses, and permitting inspection of an automobile not involved in the accident for demonstrative purposes.

II.

Seal and Miller were childhood friends, who had not seen each other for about six or seven years prior to January 1987. On January 7, 1987, they renewed their friendship by engaging in an evening of horseback riding, followed by dinner and dancing with friends. Before leaving the restaurant in Louisiana, they made plans with Miller's brother, Wade and a friend, Mike Temples, to meet at the home of Ruth Fleming, Miller's mother.

En route to Ruth Fleming's house, Mike and Wade Miller rode in a truck, while Miller and Seal traveled together in Ruth's Nissan 280-ZX. The parties stopped somewhere after they crossed the Louisiana/Mississippi line to give Wade a cigarette light. Mike and Wade testified that Miller was driving the car at this time. A few miles down the highway, the two vehicles stopped again and pulled into the parking lot of Dixie Lighting. Miller was still in the driver's seat.

Afterwards, Wade and Mike pulled back onto Highway 26 headed towards Picayune, Mississippi. Wade testified that about one-half mile down the road, he saw the 280-ZX pull onto the highway from Dixie Lighting. As he approached the crossroads, the sports car came "flying around my left side and made a turn fast ..." to the right and onto Highway 43. Wade could not see the driver, but stated that the car was going faster than what he had earlier observed. Both Mike and Wade testified that they reached Ms. Fleming's home around 12:30 a.m. and were surprised that Miller and Seal had not arrived, since the couple had driven past them.

Seal testified that the last thing she remembered, after stopping the second time, was sitting in the passenger's seat as they drove past a convenience store about one and one-quarter mile from the accident scene. The car then left the road and struck a utility pole. Neither party remembered the impact.

At trial, the parties offered conflicting expert testimony from Dr. William Bushkirk, a bio-mechanical engineer, and Dr. Roy Arnold, a physicist, to aid in determining who was the driver, based on the physical evidence and the reported body positions of the two when discovered.

Sgt. Varnado was the investigating officer on the night of the accident. At the time of the accident, she had been employed by the Picayune Police Department for six and a half years. Prior to her employment, Sgt. Varnado had been trained in accident investigations. She investigated several hundred motor vehicle accidents in the course of her employment, including one-car accidents. Her training required that she focus on "[t]he tracks of the vehicle, the debris, what object it struck, and the location of people in the automobile after the accident."

III.

Seal asserts that the lower court erred in allowing Sgt. Varnado to render expert opinion testimony, without being qualified as an expert. She submits that Varnado attempted to "venture into the scientific fields of accident reconstruction and physics" with the following testimony:

Q. Based on your investigation, what evidence, if any, did you find that the vehicle had spun or done a 360 degree turn either before hitting the pole or after hitting the pole?

A. None.

Seal also raises the following:

Q. Based on your observations and what you observed and your experience as a law enforcement official, who has got six and a half years of investigating automobile accidents, who did you determine was driving the vehicle at the time of the impact?

A. Miss Seal.

Q. Have you ever seen any studies about what happens to individuals without seat belts on impact?

A. Yes, sir.

Q. Have you noticed that in those studies--you've probably seen some videos put out by the National Institute of Highway Safety Administration.

A. Yes, sir.

Q. Those impact studies--do you recall that when there is an impact without seat belts, the head usually goes forward first and rises?

MS. OLDMIXON: Your Honor, we object. I think he said the time of impact--how the impact is being accomplished. Object to form of the question.

THE COURT: Well I'm going to sustain the objection to her testifying to what she might have read in a book. She can testify of her experience, and, of course, ya'll have objected to her being an expert in some of these fields.

MR. ALLEN: I was overruled in my objection.

THE COURT: On her personal observations and so forth. Now if you want to go into this, if she's experimented or done personal observation, of course, I'll allow you the same latitude as Ms. Oldmixon.

Seal also asserts that the trial court erred by allowing Billy Graham, an ambulance attendant, to render "expert" opinion testimony regarding whether he observed evidence that the car had flipped or rolled over. Graham, a registered nurse and paramedic, with eight years experience in emergency medical services works on injured victims at the scene of motor vehicle accidents.

Graham's duties entail discerning whether there was an accident, whether the vehicle involved was moving at a rapid or slow pace, observing physical conditions of the victims, taking into account the positions of the victims in the vehicle, the interior items in the vehicle, mechanisms of the accident, and the location of damage to the vehicle.

Seal objected to the following testimony by Graham:

Q. All right, now what evidence, when you were reviewing the physical damage to the vehicle and the scene of the accident, did you find of the car having rolled or flipped?

A. None.

MR. ALLEN: Objection ... Your Honor. There's no predicate layed [sic] that this man has any special expertise to make that kind of conclusion.

THE COURT: I'm going to overrule the objection on his personal observation. That's what he's testifying from--just his personal observation.

Miller, conversely, argues that both witnesses testified to their personal observations at the accident scene. He contends, moreover, that neither witness was directed to reconstruct the accident nor render an opinion about how the impact of the car caused the bodies to move within the vehicle. Thus, the testimony amounted to opinion testimony by lay witnesses governed by Miss.Rules of Evidence, Rule 701.

IV.

The admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand. Hooten v. State, 492 So.2d 948, 950-51 (Miss.1986) citing Weiss v. Louisville, N.O. & T. Ry. Co., 7 So. 390 (1890).

We are not here presented with a Rule 702 issue. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We are not faced with the question of whether Sgt. Varnado and Billy Graham were qualified as experts to render the testimony given because neither witness was tendered as an expert. Roberson v. State, 569 So.2d 691, 694 (Miss.1990). Our analysis may be different had the two been tendered as experts and a subsequent query arose regarding their qualifications to render such testimony. Compare Miller v. Stiglet, 523 So.2d 55 (Miss.1988). Thus, we now turn to a discussion of whether the testimony of the two witnesses was admissible under Rule 701, lay witness opinion.

Rule 701 of the Mississippi Rules of Evidence together with its comment in part states:

If the witness is not testifying as an expert, his testimony is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of his testimony or the determination of a fact in issue.

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Comment

The traditional rule regarding lay opinions has been, with some exceptions, to exclude them from evidence. Rule 701 is a departure from the traditional rule. It favors the admission of lay opinions when two considerations are met. The first consideration is the familiar requirement of first-hand knowledge or observation. The second consideration is that the witness' opinion must be helpful in resolving the issues. Rule 701, thus, provides flexibility when a witness has difficulty in expressing himself in language which does not reflect an opinion. Rule 701 is based on the recognition that there is often too thin a line between fact and opinion...