Stucker v. Chitwood, 17580

• Decision Date: 02 December 1992
• Docket Number: No. 17580,17580
• Citation: 841 S.W.2d 816
• Parties: Edwin A. STUCKER, Clara Barton Stucker, September Ayers Finley and Larry Wayne Ayers, b/n/f Edwin A. Stucker, Plaintiffs-Appellants, v. John David CHITWOOD and Robert McAdams, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 816

841 S.W.2d 816

Edwin A. STUCKER, Clara Barton Stucker, September Ayers

Finley and Larry Wayne Ayers, b/n/f Edwin A.

Stucker, Plaintiffs-Appellants, v. John David CHITWOOD and Robert McAdams, Defendants-Respondents.

No. 17580.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 2, 1992.

Stephen C. Wilson, Buerkle, Beeson & Ludwig, Jackson, for plaintiffs-appellants.

James E. Spain, Spain, Merrell, and Miller, Poplar Bluff, for defendants-respondents.

FLANIGAN, Chief Judge.

On March 26, 1992, this court issued an opinion in this cause. On June 2, 1992, by order of the Supreme Court of Missouri, this cause was transferred to that court. On November 24, 1992, the Supreme Court entered an order retransferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.

This is an action for the wrongful death of Brenda Ayers who died in a collision which occurred on September 15, 1987, at approximately 12:07 a.m. on U.S. Highway 60 in Butler County. Brenda was the driver of a 1980 Dodge sedan which collided with a tractor-trailer unit, an 18-wheeler, driven by defendant John Chitwood and owned by his employer, defendant Robert McAdams. Plaintiffs are Brenda's survivors.

The petition pleaded that Chitwood was negligent in failing to drive on the right hand side of the roadway. The answer pleaded that Brenda's death "was the direct and proximate result of the carelessness and negligence of [Brenda] contributing thereto." At the trial, defendants conceded agency. The jury returned a verdict in favor of defendants and assessed their percentage of negligence as zero. Plaintiffs appeal.

Prior to the collision, Brenda was driving the Dodge eastwardly on Highway 60, and Chitwood was driving the tractor-trailer unit westwardly. At the place where the accident occurred, Highway 60 is a two-lane highway running generally east and west, essentially level, with a five-foot shoulder on each side. The road is about 10 to 15 feet above the surrounding terrain and drops sharply on the north side.

Skid marks of both vehicles indicated that each applied its brakes while in the north or westbound lane. In other words, the Dodge was on the wrong side of the road prior to the collision. The parties agree that at the moment of impact, which took place in the eastbound lane, both vehicles were entering the eastbound lane.

Plaintiffs' principal witnesses on the issue of liability were Sgt. Jerome Burford of the Missouri State Highway Patrol, and John Bentley, a professional engineer who practices in the field of accident reconstruction.

Plaintiffs' point, based upon an incident which occurred during the cross-examination of Sgt. Burford by defense counsel, states: "The trial court erred in permitting Sgt. Burford to testify over objection that he found no contributing circumstances on behalf of defendant Chitwood in causing the accident for the reason that such testimony was a conclusion, was not supported by any evidentiary foundation establishing expertise, and further such testimony invaded the province of the jury, going to an ultimate issue to be decided by the jury."

Sgt. Burford was the only officer who investigated the accident. On direct examination, Burford testified that he arrived at the scene at 12:25 a.m., approximately 20 minutes after the collision had occurred. He testified with respect to conditions which he found at the scene, including the final positions of the vehicles and location and measurements of skid marks. Without objection, he testified with respect to the location of the point of impact, a matter concerning which there was no dispute. The area of impact was about three feet south of the center lane.

On cross-examination, over objection of plaintiffs' counsel, defense counsel posed the following question: "Based on your investigation and based upon what you found out there, did you find any contributing circumstances of Mr. Chitwood?" The witness answered, "No, sir." The grounds of the objection were, in essence, the same grounds set forth in plaintiffs' point.

It is clear that the witness's answer to the challenged question was considered significant by both sides. The final argument of defense counsel included the following:

"This trooper, who it is part of his job, told you. He is far more of an expert at investigating automobile accidents than the guy that was paid. This trooper said he found no contributing circumstances--

MR. WILSON: Judge, I object to this argument he took issue to that earlier and--

MR. SPAIN: And the objection was overruled, Your Honor.

THE COURT: I think that's true. It's closing argument.

MR. SPAIN: This unpartial expert witness said he found no contributing circumstances and not ten percent, zero. And that's why you ought to put the zero right here because that's where it is. This is their case."

The challenged question is quite broad. The witness was asked if he found "any contributing circumstances" on the part of Chitwood. Clearly the question sought the opinion of the witness on whether Chitwood's mode of operation of the 18-wheeler had any causal connection with the collision and its tragic consequences. His answer amounted to a statement that in his opinion, based on his investigation, Chitwood was not at fault and that his percentage of fault was zero. Such was the plain meaning of his answer, and such was the construction placed upon the answer by defense counsel.

Seeking to uphold the trial court's ruling on the challenged question, defendants argue that "the admission of such evidence is within the trial court's discretion and is not objectionable by virtue of the fact that it embraces an ultimate issue to be decided by the trier of fact." Defendants also say that § 490.065 ¹ "governed the issue of the admissibility of this evidence.... The scope of expert testimony is greatly enlarged by the enacting of this statute."

Section 490.065, enacted in 1989, and which was in effect at the time of the trial, reads, in pertinent part:

1. In any civil action, 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.

2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (Emphasis added.)

Section 490.065.1 is identical to Federal Rules of Evidence, Rule 702, except that the latter rule does not have the opening words "in any civil action." Section 490.065.2 is, for civil case purposes, the equivalent of Federal Rules of Evidence, Rule 704(a).

Defendants make no attempt to justify the question on the ground that such testimony could properly be elicited from a lay witness. The statute on which defendants rely makes no mention of lay testimony. "A jury of laymen, possessed of the facts, is as competent as a witness to draw conclusions on subjects within the experience and knowledge common to mankind in general, and opinion testimony may be excluded because superfluous." Christian v. Jeter, 287 S.W.2d 768, 770 (Mo.1956). "Generally, witnesses must state facts from which the jurors are to form their opinion, but when a witness has personally observed events, he may testify to his 'matter of fact' comprehension of what he has seen in a descriptive manner which is actually a conclusion, opinion or inference, if the inference is common and accords with ordinary experiences of everyday life." Patton v. May Dept. Stores Co., 762 S.W.2d 38, 42 (Mo.banc 1988). Christian and Patton involved admissibility of the opinion of a lay witness. Compare Federal Rules of Evidence, Rule 701, which reads:

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

Defendants argue that the question was proper because, so they say, Burford was an expert and the statute permitted the inquiry.

Missouri courts have held that the opinion testimony of expert witnesses "should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved." Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573, 586 (Mo. banc 1978). To similar effect see Hendricks v. M-K-T R. Co., 709 S.W.2d 483, 492 (Mo.App.1986). The essential test of admissibility of expert opinion evidence is whether it will be helpful to the jury. Hendricks, at 493.

Even before the enactment of § 490.065, this court said:

[A]n expert's opinion as to causation is no longer objectionable solely upon the ground that the opinion bears on an ultimate issue in suit. Eickmann v. St. Louis Pub. Sv. Co., 363 Mo. 651, 663-664, 253 S.W.2d 122, 129-130[7, 8] (1952). Nevertheless, our Supreme Court has balked at permitting the complete "reconstruction" of automobile casualties so as to permit the allocation of fault by expert hindsight. Housman v. Fiddyment, 421 S.W.2d 284, 289[1-4] (Mo. banc 1967).

Deskin v. Brewer, 590 S.W.2d 392, 397 (Mo.App.1979) (citing authorities).

In order for an expert witness to be qualified it must appear that by reason of education or specialized experience he possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of drawing correct conclusions.

Shelby County R-IV School District v. Herman, 392 S.W.2d 609, 616 (Mo.1965).

The question of the qualification of a witness as an expert in the field...