State Farm Fire and Cas. Co. v. Sawyer
| Citation | 522 So.2d 248 |
| Parties | STATE FARM FIRE AND CASUALTY COMPANY and Ronald J. Lippe v. James Hollis SAWYER. 86-523. |
| Decision Date | 04 March 1988 |
| Court | Supreme Court of Alabama |
William H. Filmore and Henry B. Steagall III, Ozark, for appellants.
Steadman S. Shealy, Jr., and Joey Hornsby of Buntin & Cobb, Dothan, for appellee.
State Farm Fire and Casualty Company and Ronald J. Lippe (hereinafter "plaintiffs") appeal from the trial court's denial of their motion for new trial, which followed a jury verdict for the defendant, James Hollis Sawyer. 1 We affirm.
The plaintiffs brought this action against Sawyer for negligently or wantonly causing or allowing a fire to ignite in a residence owned by plaintiff Lippe and rented to Sawyer. The house was a total loss. Auto-Owners Insurance Company, Sawyer's insurer, was added as a defendant because of its failure or refusal to provide insurance coverage on this fire destruction. Sawyer denied plaintiffs' claim and counterclaimed for personalty lost in the fire due to plaintiffs' alleged negligent maintenance of the premises.
Prior to trial, Auto-Owners Insurance Company was dismissed from the suit. Sawyer's counterclaim and the plaintiffs' wantonness count were also dismissed.
The jury returned a verdict for the defendant. The plaintiffs filed a motion for new trial, which was denied by the trial court. This appeal followed.
Plaintiffs raise two issues in this appeal:
(1) Did the trial court err in permitting, over objection, the defendant's expert to offer opinion evidence?
(2) Was the verdict for the defendant against the great weight of the evidence?
Ronald and Joyce Lippe built their home outside of Dothan in 1981 at a cost of approximately $110,000. The Lippes lived in the house for a year and then rented the house to Sawyer for $600 per month. The lease signed by Sawyer was not in evidence, but Ronald Lippe testified that it was a standard lease and contained a clause providing that the tenant would be responsible for damages caused by the tenant's negligence.
After the house had been rented to Sawyer for approximately ten months, plaintiff Lippe tentatively put the house on the market. On the day before the fire, Ronald Lippe had shown the house to a prospective buyer. That same night Lippe went to the house to pick up the rent check and to have dinner with Sawyer and his wife.
The fire occurred the following morning. By the time the fire department arrived at 10:12 a.m., the entire house was engulfed in flames and eventually burned to the ground. Sawyer testified that a pot of grease had been left on the stove the night before. He also testified that he had made tea on the morning of the fire and then had left the premises. Sawyer also testified that he always used a particular eye of the stove and that he had put the tea pan in the sink when he was finished. He also testified, "I'm pretty sure I turned the burner off." Sawyer testified that the dishwasher was on when he left the house. He had previously reported to Lippe that the dishwasher had on occasions malfunctioned.
A witness for the plaintiffs testified that, at the scene of the fire, Sawyer said, "I think I left a burner on [on] the stove." The fire marshal was then informed of that possibility, and the stove, manufactured by Jenn-Air, was pulled out of the debris, along with some pans identified by Sawyer as being those left on the stove. The focus of the fire investigation centered on the stove and the location of certain pans on the stove, one of which contained grease.
At the time of the fire, the fire marshal made several photographs of the scene and, particularly, of the stove itself. Another investigation was made two days later by Bob Pate, a fire expert hired by the plaintiffs. Pate also took photographs of the fire scene and several photographs of the stove itself. A comparison of the fire marshal's photographs and those taken by Pate indicated that the stove had been set off further from the fire debris in the two days that had elapsed before Pate visited the scene of the fire.
There was considerable disputed testimony concerning the value of the house and the personal property contained within, which is not relevant to this appeal.
As best we can glean from the plaintiffs' argument, their primary objection to the expert testimony presented by the defendant concerning the cause of the fire was that the expert, Jim Posey, lacked personal knowledge of the fire scene and, therefore, that any testimony elicited from him had to be in the form of a hypothetical question. Plaintiffs also claim the trial court erred in permitting Posey to use a Jenn-Air stove as a demonstrative aid to his testimony.
Posey's testimony revealed that he had made no personal inspection of the fire scene at the time of the fire, and had made no physical examination of the evidence. On direct examination by defense counsel, Posey was shown the photographs taken by the fire marshal and those taken by one of the plaintiffs' experts, Bob Pate. Both sets of photographs were admitted into evidence. The following testimony occurred:
There was no objection made by the plaintiffs concerning Posey's qualifications to testify as an expert. Thus, the narrow issue before this Court is whether the trial court abused its discretion in permitting him to give his opinion as to whether the house fire's origin was a grease fire on the stove, where the basis for the hypothetical question was photographs of the stove, which were in evidence.
Our analysis of this issue begins with the standard of review this Court set forth in Russellville Flower Craft, Inc. v. Searcy, 452 So.2d 478, 480 (Ala.1984):
In Osborne Truck Lines, Inc. v. Langston, 454 So.2d 1317, 1329 (Ala.1984), quoting from Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968), this Court stated:
"
And, as this Court noted in Thompson v. Jarrell, 460 So.2d 148, 150 (Ala.1984), the following is also well settled:
Plaintiffs cite us to the case of Yeager v. Hurt, 433 So.2d 1176 (Ala.1983), for the proposition that an expert cannot derive personal knowledge from the review of photographs; therefore, they say, an opinion based solely on review of photographs is not permissible. We do not think that Yeager stands for the proposition that an expert can never base his opinion on a photograph. Cf. Alabama Power Co. v. Scholz, 283 Ala. 232, 241, 215 So.2d 447 (1968) ().
In Yeager, the trial court refused to allow the expert, an automobile theft investigator, to testify as to his opinion of whether a serial number on a motorcycle had been altered based on his observation of a photograph of the motorcycle showing the serial number. This Court noted that the trial court's ruling was particularly justifiable in light of the fact that another expert, who had personally inspected the motorcycle, testified that he could not determine from that personal inspection whether the serial number had been altered. In this case, both of the plaintiffs' experts testified that their examination of the stove, as represented by the...
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...an expert is not required to possess direct personal knowledge of a matter in order to express an opinion. State Farm Fire & Cas. Co. v. Sawyer, 522 So.2d 248, 250-52 (Ala.1988) (expert witness allowed to give an opinion even though hypothetical question was based on photographs and expert ......
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