DeFries v. Post

Court of Appeals of Oregon

DeFries v. Post

815 P.2d 224, 108 Or. App. 298, 1991 Ore. App. LEXIS 1167

CourtCourt of Appeals of Oregon

DecidedJuly 31, 1991

DocketCV 89-0962; CA A67018

StatusPublished

This text of 815 P.2d 224 (DeFries v. Post) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeFries v. Post, 815 P.2d 224, 108 Or. App. 298, 1991 Ore. App. LEXIS 1167 (Or. Ct. App. 1991).

Pincite

Opinion

RICHARDSON, P. J.

Plaintiff appeals a judgment for defendant in this action arising out of the collision of their vehicles. The judgment was based on the jury’s finding that plaintiffs comparative fault exceeded defendant’s. Plaintiffs sole assignment is that the court erred by allowing a police officer, who was called in to investigate the day after the accident, to give expert testimony about the speed at which plaintiff was driving before the accident.

Plaintiff relies on Thomas v. Dad’s Root Beer, Etc., 225 Or 166, 356 P2d 418, 357 P2d 418 (1960), and Bailey v. Rhodes, Adm., 202 Or 511, 276 P2d 713 (1954), for the proposition that an officer who was not a witness to an accident may not be permitted to testify about vehicular speed or similar facts about the accident. Defendant argues that neither that proposition nor those cases survive the enactment of OEC 702 and OEC 703 or the decision in State v. Stringer, 292 Or 388, 639 P2d 1264 (1982).

In Stringer, the court held that certain expert “accident reconstruction” evidence was admissible. It expressly stated that the admissibility of such evidence is not dependent on the expert having witnessed the accident or, as some other jurisdictions have held, on there being no other eyewitness:

“[W]e are of the opinion that to restrict the use of experts who did not witness the accident to instances in which no eye witnesses are available is a distinction which unnecessarily clutters the law of evidence. If such expert testimony has probative value it should be admitted.” 292 Or at 394.

Plaintiff nevertheless argues that the proposition that he ascribes to Thomas v. Dad’s Root Beer, Etc., supra, and Bailey v. Rhodes, Adm., supra,1 remains viable, and that Stringer discussed those cases but did not overrule them. It is correct that Stringer does not expressly overrule Thomas or Bailey. However, what Stringer says is diametrically opposed to what plaintiff understands Thomas and Bailey to say about [301]*301the ability of an officer to testify as an expert regarding an accident that he did not witness. Assuming plaintiffs understanding of the two earlier cases to be correct, the fact that Stringer does not say that it overrules them does not end the inquiiy and is, in fact, inconsequential. There are many decisions that are at odds with earlier decisions of the same courts, but that do not mention the word “overrule.” See, e.g., Bauman v. SAIF, 295 Or 788, 670 P2d 1027 (1983). It is the substance of what the later case says that matters, not whether it says overtly that earlier conflicting decisions are no longer precedential.²

The trial court did not err by admitting the testimony, over plaintiffs objection, that the officer was not a witness to the accident. Plaintiff also argues that the testimony should have been excluded on various grounds pertaining to the foundation for the witness’ opinion and the data on which it was based.³ We have considered that argument and conclude that all of plaintiffs points relate to the weight of the evidence rather than to its admissibility. The evidence was admissible under OEC 702 and OEC 703.

Affirmed.

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RICHARDSON, P. J.

Plaintiff appeals a judgment for defendant in this action arising out of the collision of their vehicles. The judgment was based on the jury’s finding that plaintiffs comparative fault exceeded defendant’s. Plaintiffs sole assignment is that the court erred by allowing a police officer, who was called in to investigate the day after the accident, to give expert testimony about the speed at which plaintiff was driving before the accident.

Plaintiff relies on Thomas v. Dad’s Root Beer, Etc., 225 Or 166, 356 P2d 418, 357 P2d 418 (1960), and Bailey v. Rhodes, Adm., 202 Or 511, 276 P2d 713 (1954), for the proposition that an officer who was not a witness to an accident may not be permitted to testify about vehicular speed or similar facts about the accident. Defendant argues that neither that proposition nor those cases survive the enactment of OEC 702 and OEC 703 or the decision in State v. Stringer, 292 Or 388, 639 P2d 1264 (1982).

In Stringer, the court held that certain expert “accident reconstruction” evidence was admissible. It expressly stated that the admissibility of such evidence is not dependent on the expert having witnessed the accident or, as some other jurisdictions have held, on there being no other eyewitness:

“[W]e are of the opinion that to restrict the use of experts who did not witness the accident to instances in which no eye witnesses are available is a distinction which unnecessarily clutters the law of evidence. If such expert testimony has probative value it should be admitted.” 292 Or at 394.

Plaintiff nevertheless argues that the proposition that he ascribes to Thomas v. Dad’s Root Beer, Etc., supra, and Bailey v. Rhodes, Adm., supra,1 remains viable, and that Stringer discussed those cases but did not overrule them. It is correct that Stringer does not expressly overrule Thomas or Bailey. However, what Stringer says is diametrically opposed to what plaintiff understands Thomas and Bailey to say about [301]*301the ability of an officer to testify as an expert regarding an accident that he did not witness. Assuming plaintiffs understanding of the two earlier cases to be correct, the fact that Stringer does not say that it overrules them does not end the inquiiy and is, in fact, inconsequential. There are many decisions that are at odds with earlier decisions of the same courts, but that do not mention the word “overrule.” See, e.g., Bauman v. SAIF, 295 Or 788, 670 P2d 1027 (1983). It is the substance of what the later case says that matters, not whether it says overtly that earlier conflicting decisions are no longer precedential.²

The trial court did not err by admitting the testimony, over plaintiffs objection, that the officer was not a witness to the accident. Plaintiff also argues that the testimony should have been excluded on various grounds pertaining to the foundation for the witness’ opinion and the data on which it was based.³ We have considered that argument and conclude that all of plaintiffs points relate to the weight of the evidence rather than to its admissibility. The evidence was admissible under OEC 702 and OEC 703.

Affirmed.

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Bluebook (online)

815 P.2d 224, 108 Or. App. 298, 1991 Ore. App. LEXIS 1167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/defries-v-post-orctapp-1991.

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