Frase v. Henry
Frase v. Henry
Opinion of the Court
Plaintiff-Appellee, Frase, is the administrator of the estate of Lacey E. Teer and Julia M. Teer. Defendant-Appellant, Henry, is the administrator of the estate of Paul L. Findley and Lenna A. Findley. Appellee filed a wrongful death and survival action against appellant in the United States District Court of Kansas. Jurisdiction was founded upon diversity of citizenship. A jury returned a general verdict in the sum of $62,500 for appellee.
Appellee’s wrongful death action devolved out of an auto collision between appellee’s deceased (Teer) and appellant’s deceased (Findley). The occupants of both vehicles died in the accident or shortly thereafter, and there were no known eyewitnesses to the collision. Carl Rempe, the state highway patrolman who investigated the accident, testified, and it was his testimony which provided most of the evidence concerning the accident.
On September 4, 1967, Teer and his wife were proceeding west on U. S. Highway 36. Approximately 12 miles west of Phillipsburg, Kansas, U. S. 36 is intersected by a north-south county road known as Long Island Road. At the north approach to U. S. 36 from the county road there was a stop sign for southbound county road traffic entering or crossing U. S. 36. The Findley vehicle was proceeding south on the county road toward U. S. 36.
As reconstructed by Rempe, the Teer vehicle was traveling west about 60 miles per hour when the Findley vehicle
Patrolman Rempe, as a witness for the plaintiff, was accepted as an expert witness by both parties and was allowed to testify in the form of opinions concerning various aspects of the collision. Important to this appeal is his testimony on direct examination in response to the question: Who did you find at fault in this accident ? Rempe replied, “Vehicle Number 2, the Findley car, failed to yield the right-of-way for Vehicle Number 1, the Teer car.”
Appellant strenuously urges that this line of testimony was inadmissible for the reason that it constituted an opinion on the ultimate fact in issue and thereby usurped the function of the jury. While recognizing the liberal Kansas rule allowing expert opinion embracing the ultimate issue, appellant contends that there must be some necessity for introducing such an opinion. Appellant concludes that in negligence cases, juries are fully capable of ascertaining fault and have no need for an expert to help them make this assessment.
“Under Rule 43 of the Federal Rules of Civil Procedure the federal courts will admit evidence if it is proper under the rules of evidence applied in courts of general jurisdiction in the state in which the trial court sits.”
While an expert witness may opine on the ultimate issue, he may do so only insofar as the witness aids the jury in the interpretation of technical facts or to assist in understanding the material in evidence.
These . fundamental principles have been discussed at length because the patrolman’s testimony in the instant case comes perilously close to telling the jury what result should be reached. Patrolman Rempe was asked: Who was at fault? Had the witness simply replied that appellee’s deceased or appellant’s deceased was at fault, we would be constrained to consider this testimony as within the category of inadmissible conclusions in the nature of what has been discussed above, e, g., Gardner v. Pere-boom, 197 Kan. 188, 416 P.2d 67 (1966); Nave v. Hixenbaugh, 180 Kan. 370, 304 P.2d 482 (Kan. 1957). However, Rempe\ did not respond to the question in that I manner; instead, he replied that from his investigation, which he detailed at trial, he reasoned that the Findley car jj failed to yield the right-of-way. In our view, this answer was admissible because it was an aid to the jury insofar as it synthesized the foregoing facts which the jurors unaided could not have synthesized for themselves.
We pass on to the other question on appeal, whether it was prejudicial error to allow two witnesses for appellee to testify that appellee’s deceased was a good driver. Witness Mrs. Bodge testi
“Character” is a generalized description of one’s disposition in respect to a general trait such as honesty, temperance, or carefulness, while “habit” is more specific. The latter designates a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.
While the distinction between trait of character and habit or custom is easy in statement, it is more difficult in application. The difficulty is not lessened by reference to Kansas cases since there are no Kansas cases construing the pertinent statutes. Certain things are abundantly clear though. Obviously had the testimony been merely that the deceased was a careful, cautious man, it would not have been admissible because such testimony is not specific enough to tend to prove that the deceased was careful in a specific instance in specific circumstances.
In view of the trial judge’s wide discretion in receiving evidence, and since in the absence of state rulings a trial judge’s view is highly persuasive as to what the law of the State of Kansas is or would be,
Affirmed.
. The context of the question and answer is important for a full appreciation of the issue on appeal:
THE COURT: While they are doing that, ladies and gentlemen of the jury, I told you I would instruct you about expert witnesses. I think I would just do it now. I will do it again.
Let me say to you that when testimony is received by what has been denoted as experts, that is, a person who has been stipulated to be an expert, or who, by experience or training professes knowledge on matters not common to mankind in general, the law permits such a witness to give his opinions regarding such matters. Now, the testimony of an expert is to be considered like any other testimony and is to be tried by the same tests and should receive such weight and credit as the jury think it is entitled to, when viewed in connection with all other facts and circumstances, and when a witness testifies as to a determination or a conclusion, then of course, a jury may consider the facts upon which he bases that conclusion as to the credibility they will give to the expert.
This is what we mean by “expert testimony”. You can bear it in mind.
Proceed, Mr. Frank.
Q. (By Mr. Frank) Trooper Rempe, based upon your training and experience in automobile investigation, you made the findings that appear on the Kansas Highway Patrol accident report?
A. Yes, sir.
Q. And in your investigation of this accident with that experience and training, did you make a finding as to the cause of the accident?
[Objection interposed and denied.]
Q. (By Mr. Frank) Yes, based upon your experience and training as a highway trooper and based upon the in-, vestigation you made of this accident, you made a finding which you reported to the Kansas Highway Patrol in the accident report as to who was at fault in this accident?
A. Yes, sir, contributing circumstances.
Q. All right.
[Objection interposed and denied.]
Q. Who did you find at fault in this accident?
A. Vehicle Number 2, the Findley car, failed to yield the right-of-way for Vehicle Number 1, the Teer car.
. Worden v. Tri-State Insurance Co., 347 F.2d 336, 340 (10th Cir. 1965).
. “If tlie witness is testifying as an expert, testimony of tlie witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
. Trimble v. Coleman Co., 200 Kan. 350, 437 P.2d 219 (1968).
. Gardner v. Pereboom, 197 Kan. 188, 416 P.2d 67 (1966).
. See Nave v. Hixenbaugh, 180 Kan. 370, 304 P.2d 482 (1957).
. See Advisory Committee’s Note to Rule 704, Proposed Rules of Evidence for the United States Courts and Magistrates (March, 1971), reported in 51 F.R.D. 315.
. Atkins v. Bayer, 204 Kan. 509, 464 P.2d 233 (1970); see Jones on Evidence, 5th ed., §§ 417, 418.
. Cf. Hildebrand v. Mueller, 202 Kan. 506, 449 P.2d 587 (1969).
. McCormick on Evidence, § 162, pp. 340-341 (1954).
. Williams v. Union Pacific Railroad Co., 204 Kan. 772, 465 P.2d 975 (1970).
. See Notes and Comments to §§ 60-448, 449, 450, Vernon’s Kansas Code of Civil Procedure, Fowks, Harvey and Thomas.
. Worden v. Tri-State Insurance Co., supra.
Reference
- Full Case Name
- Gerald L. FRASE, in the capacity of Administrator of the Estates of Julia M. Teer and Lacey E. Teer, Decedents v. W. F. HENRY, Administrator of the Estates of Paul L. Findley and Lenna F. Findley, Decedents
- Cited By
- 44 cases
- Status
- Published