459 S.W.2d 281 | Mo. | 1970
This is an action by one insurance-agent-broker, Herman Falke, against another insurance-agent-broker, H. E. Snyder, to recover $300,000.00 damages for “severe economic loss, including the loss of business, a loss of business reputation, and substantial harassment and humiliation in the conduct of his business.” The allegation in plaintiff’s petition is that between the dates of August 1961 through August 1962 he placed “a number of risks with defendant during that period, but that defendant, in violation of his duty of ordinary care, diligence, and best judgment did neglect to place such insurances in sound insurance companies, but rather negligently placed said risks with Guaranty Insurance Exchange, which company was in an unsound position and which fact could have been determined by said defendant had he exercised appropriate care and diligence.” But, the plaintiff alleges, as a result of the charged negligence plaintiff suffered the noted losses and injuries.
At the close of the plaintiff’s evidence the court sustained the defendant’s motion for a directed verdict and plaintiff has appealed. In his brief here plaintiff asserts that the court was in error in thus directing a verdict because “a prima facie cause had been established by substantial evidence of negligence, damage and proximate cause.” The plaintiff has cited no cases or other authority in support of his theory of recovery and the defendant has cited no helpful authority. The plaintiff asserts that the “placements of insurance,” particularly in Guaranty, “constituted negligence.” But whatever plaintiff’s basic theory of liability he asserts that negligence would have been established “had the excluded expert opinion (the subject of Point I) been admitted.” In addition, he says, however, that a reasonable inference from all the testimony which was admitted “the court arrived at the same probandum (see “probant” in Oxford English Dictionary and “factum probandum” in Ballentine Law Dictionary, p. 456); that Snyder was negligent.”
The difficulty with appellant’s “proban-dum” is that it is not dependent on the
In this background and as indicated the plaintiff’s cause of action was wholly dependent upon expert testimony and by the court’s ruling his two witnesses to the essential facts were not qualified as experts in the subject matter. The appellant’s only answer to the court’s ruling, particularly as to Mr. Roseworn, is that the court’s ruling “was confined to a hearsay objection” — that is that his testimony and opinion were based on hearsay. But that was only one of the reasons the court did not consider the witnesses qualified — that all their information and opinions were based on hearsay, again as indicated, the court’s ruling was that the witnesses did not possess the requisite and peculiar knowledge, training or experience necessary to qualify them as experts and the appellant’s “hearsay” contention (Compare the only case cited by appellant, State ex rel. State Highway Comm. v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 25), does not in any manner demonstrate that the court’s ruling was erroneous either as a matter of fact or law. The Bloomfield case recognizes the applicable, governing rule that “(t)he qualification of an expert or one standing in the role of an expert is a
The case relied on by the appellant concerned the value of land in condemnation and the court observed, as have others, that “One need not be an ‘expert/ in the sense that word is ordinarily used, to testify as to the value of land.” When, as here, the essential issue involves the financial condition of an insurance company and whether the conduct of an agent in “placing a number of insurances” in a particular company “was ordinarily good, prudent practice as an agent in the greater Kansas City metropolitan area,” the problem is whether the qualification and hence the testimony of the witness is based on adequate facts and data and ultimately whether the offered testimony is of such substance and probative force, supported by reasons, as to constitute substantial evidence. And here, under these tests, the testimony of the two witnesses offered as experts “does not constitute substantial, probative evidence, particularly when it is considered that this is the only evidence from which a lay jury is to draw the essential and hypothesized inference of defective regulator, negligence and consequent liability” in tort. Gaddy v. Skelly Oil Co., 364 Mo. 143, 154, 259 S.W.2d 844, 851-852. As to opinions or conclusions as to the solvency of a rather complicated corporation, as a bank or an insurance company, even based upon an examination of company books, “(i)f the witness is not shown to be qualified to express an opinion as to solvency or insolvency * * * his opinion on that question is inadmissible.” 31 Am.Jur.2d (Expert and Opinion Evidence) Sec. 176, p. 740; State v. Peer, Mo., 39 S.W.2d 528; State v. Long, Mo., 44 S.W.2d 67.
With a case and record in this posture, whatever the plaintiff’s theory of liability, there was no evidence to support it and the trial court did not err in directing a verdict for the defendant — accordingly, the judgment is affirmed.
PER CURIAM:
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
All of the Judges concur.