Hagan Storm Fence Co. v. Edwards

148 So. 2d 693, 245 Miss. 487, 1963 Miss. LEXIS 530

• Court: Mississippi Supreme Court
• Decided: January 14, 1963
• Docket: 42419
• Status: Published

Opinions

McGehee, C. J.

On this appeal it is assigned as error, among other things, that the trial court erred in admitting the opinion testimony of one Alvin Doyle, who is referred to in the brief of appellee and in some of the intermediate State Courts of Appeal cases and federal decisions as an accidentologist, upon the theory that his experience as an operator of a large automobile repair shop at Baton Rouge, Louisiana, his training and experience in determining which automobile was responsible for the collision in an automobile accident on the highway, his experience as a photographer, in judging the rate of speed of the respective automobiles involved in an accident, the point of impact, the angle of the respective cars when they collided, and as an automotive engineer consultant of several years experience at the Louisiana State University, rendered such, testimony competent. Doyle’s testimony was objected to by the appellant, and the objection was overruled by the trial court. We think the trial court erred in overruling appellant’s objection of the opinion evidence.

We shall deal only with the assignment of error disclosed in the foregoing paragraph. We would affirm the case insofar as the other alleged errors are concerned.

The appellee James Edwards was driving northward at the intersection of Wiggins Road, running generally north and south, and Gault Street, running generally east and west, in the City of Jackson, Mississippi. On August 19, 1960, Theron M. McGregor was travelling in an easterly direction on Gault Street in a Volkswagen, and at that time was engaged about the business of his employer Hagan Storm Fence Company. His vehicle collided with the Chevrolet panel truck which was travel-ling northward on the Wiggins Road, as aforesaid. The testimony of witnesses other than Alvin Doyle disclosed where the two vehicles came to rest respectively, and the photographs which were taken at or near the time of the accident were introduced before the jury. Mr. Doyle arrived in Jackson the day before the trial in July 1961 and visited the scene of the accident and he based his conclusion as an expert witness on the position of the automobiles as related to him by others, the angle of the vehicles, and the photographs shown him, and placed the responsibility for the accident upon the Volkswagen driven by T. M. McGregor, employee of the appellant Hagan Storm Fence Company, and with the result that a verdict of $20,000 was rendered against the said defendant.

The drivers of both the Volkswagen and the panel truck suffered from amnesia after the accident and neither of them could recall anything whatever about how the accident occurred. Therefore the trial court permitted the testimony of Mr. Doyle to be given as an expert on the ground of necessity, and of Ms qualifications as such, as testified to by Mm.

It should be observed that Mr. Doyle had no facts before him on which to reach his conclusions that the jury did not have. He testified from photographs that had been introduced in evidence, the location at which the two vehicles came to rest as necessarily related to him by witnesses, and testified as to the indicated speed of each automobile at the time of the accident, and of course he did not know the point of impact except from hearsay, and on the basis of his experience as hereinbe-fore set forth.

There is nothing complicated about this intersection collision of the two vehicles. The car which is alleged to have been at fault was travelling east and struck a car in the intersection which was travelling north.

In the case of Illinois C. R. R. Co. v. Williams, et al, 242 Miss. 586, 135 So. 2d 831, this Court, speaking through Mr. Justice Ethridge, stated in its opinion: "Where the facts can be produced and presented to the jury or other trier of facts by direct evidence, in such a manner that they can have an adequate basis for formulation of their own decision, without extraneous assistance, opinion evidence (such as that here) should not be admitted. Ordinarily a witness must confine his testimony to matters within his own knowledge.” Citing authorities.

In this state a trial by jury is guaranteed by our State Constitution. It is the view of the writer of this opinion that the testimony of Doyle was a clear invasion of the province of the jury, and this Court has repeatedly rejected testimony which has undertaken to invade the province of a jury. We assume that it is wholly unnecessary to cite cases upholding the constitutional right of trial by jury and holding that testimony which invades the province of the jury is inadmissible in this state. The appellee in his brief says: “* * * it is a matter of interest and significance that his testimony in the following recent reported cases has been accepted without question and relied upon by the respective courts in their opinions: Fendlason v. Allstate Insurance Company, (Court of Appeal, La., 1961) 136 So. 2d 814; Swillie v. General Motors Corporation, (Court of Appeal, La., 1961) 133 So. 2d 813; Sinclair v. Cook, (Court of Appeal, La., 1961), 128 So. 2d 247, and Randall v. Baton Rouge Bus Company, (Court of Appeals, La., 1959) 114 So. 2d 98.” It is to be noted from the above that these cases are from intermediate Courts of Appeal in the State of Louisiana and that the appellee does not cite any state Supreme Court decisions on this point supporting his contention in this case. We have no cases by our own Supreme Court which uphold the admissibility of testimony of this type.

The witness claimed that he had testified in the courts of twelve states, including testimony in the state and federal courts of Mississippi. We do not know whether this testimony was objected to or not, but we are of the opinion if it had been objected to the objection should have been sustained.

It has been the uniform rule in this state that we let the witness tell the facts and leave it to the jury to determine the conclusion to be drawn from the facts.

We think that this case should be reversed and remanded for a new trial because of the error in the admission of the testimony of Mr. Doyle as an expert ac-cidentologist.

Reversed and remanded.

Lee, Kyle, Gillespie, and McElroy, JJ., concur.