*1 48,717 No. Lollis, Appellant, v. Superior
George Inc., Company, Sales Manard, Appellees. P. Stephen 423) P.2d
(580 Opinion filed 1978. June Fields, Carson, Boal, City, argued H. Fields & of Kansas the cause and John appellant. was on the brief for the Rushfelt, Mueller, Lamar, Moran, Rushfelt, Gerald L. Druten & of Prairie Village, argued appellees. the cause and was on the brief for the Schroer, Schroer, Chartered, Jones, Bryan, Topeka, Gene E. Rice & was on Lawyers Trial amicus curiae brief on behalf of Kansas Association. by of the court was delivered This is a review of decision of the Court of Prager, J.: opinion. Appeals affirming unpublished the district court in an Lollis, plaintiff-appellant, George brought to re- action personal injuries sustained in a collision which damages cover for Kansas, City, driven occurred in Kansas between defendant-appellee, and a beer truck driven Manard, defendant-appellee, Su- Stephen P. and owned Company, question presented Inc. perior The sole for Sales permitting is whether the trial court erred determination police officer, testify who investigated plain- official accident contained his *2 tiff, motorcycle, speeded illegally the driver had and closely followed and that his not show too did con- tributing actions on the of the driver the beer truck. greatly essentially dispute The facts in the case are not in and morning April 17, 1974, On motorcycle as follows: the by plaintiff driven Lollis collided with a truck beer driven and grocery defendant Manard. Both Lollis Manard had been in a Waverly store on the southwest corner 11th and Streets Kansas, City, just prior Manard, having Kansas to the collision. deliveries, completed started the engine, his truck turned his on pulled signal, away curb, proceeded left-turn from the and ain southerly Lollis, direction down 11th Street. approxi- Plaintiff time, mately up motorcycle the same started his which was parked proceeded behind the beer truck and to follow the truck street, the same 11th two-way direction. Street is a 32 feet width. pavement asphalt The was dry. and the road surface was posted The speed limit thirty per on 11th Street was miles It hour. undisputed that the truck beer driven Manard made right-hand Street, Greeley turn to the west on a block south of Waverly. motorcycle Plaintiff’s collided right-rear with the side the beer The truck. driver of the impact truck heard an and stopped the Plaintiff motorcycle up truck. and his ended close the Greeley corner of 11th near the curb. by plaintiff
The evidence offered Lollis that of the defend- ants as to the how collision occurred inwas conflict. Plaintiff testified that the away when beer truck drove from the curb it had its left-turn signal signal on and that the still blinking was at a point halfway Plaintiff, about down street the toward the corner. believing the driver of beer the truck intended to make a left turn, pass started time, beer truck on right side. At that the beer truck was traveling middle of street. There were parked no cars the area and there no cars ahead plaintiff past started the beer truck. Plaintiff testified that, as the front of his became even with the back truck, signal the truck’s left-turn was still blinking. This was thirty about from Greeley point, feet Street. plaintiff At this was on right-hand side going of the truck down the middle lane, feet, out inches, about three nine from curb. After truck, rear the beer truck without plaintiff passed the end col- right-hand turn. The warning made a time, plaintiff At wheels of truck. lided with the rear twenty twenty-five per hour. driving he miles testified that applied brakes his horn. He have Plaintiff did not sound collision, but He remembered the at the time of the not before. wheels, just dragging being under the going truck over him and he had no of where down street. Plaintiff recollection located, cycle except that he could see located or where the plaintiff motorcycle. The suffered serious both the truck and lay looking personal injuries. After the he back straight up move. Plaintiff remembered that and could not up and had driver came said that he not seen the truck police plaintiff. hurting told the officer that hospital. not tell the go did should plain- happened. simply, Stated it was officer the accident how *3 theory proceeding truck was south on 11th tiff’s the beer indicating a signal its left turn. Plaintiff then Street with left-turn suddenly proceeded pass right. on the truck the The truck motorcycle vehicles and the turned into him. The collided point impact the the truck dragged truck from until the stopped. specific negligence relied the The acts improper plaintiff driver executed an were that defendant turn, turn, proper signal for and failed right right a a failed keep proper a lookout. grocery he store Manard testified that when left Defendant motorcycle making delivery, plaintiff’s after he observed the his plain- parked seeing did recall ever behind his truck. He not truck, engine, pulled the started the tiff. Defendant entered the off, He checked his on his left-turn indicator. brake turned let pulled away from He mirror and then the curb. rearview off, on and then turned steering signal wheel turn the left-turn halfway right-turn signal. This about down the block. twenty per than miles hour. After was less beer truck’s right-turn he turned it off. The signal, his never Manard turned on Greeley traveling proceeded 11th toward down Street beer truck truck of the street. As beer approximately in the middle south, anyone did not aware be- the driver become traveled driver hind; of brakes. The hear horn screech he did not as the was even with right wheel to the truck turn his started to Greeley proceeded on Street. As the driver in his sidewalk turn, glass. stopped, he heard a noise that sounded like broken He truck, put flasher, got plaintiff his out and saw the on lying Greeley up street. The north of the truck on against gutter. damage the curb and There was no to the glass. rear it simply, truck and no broken Stated was the theory of the defendants beer proceeding truck was with 11th due care south on Street toward the intersection with its right-turn signal blinking properly turn commenced its Greeley specific right contributory Street. The negli- acts upon by gence plaintiff operated relied defendants were that the speed; keep his excessive rate of failed lookout; improper attempt pass made an right on the truck; stop, swerve, side of the beer failed to or turn aside to avoid collision; and failed to sound his signal horn or otherwise pass the intention to beer truck. It should be noted that plaintiff’s motorcycle defendants did claim that following closely. the beer truck too
At the trial called as his first witness Smith, wife, Tommy a relative of who arrived at the scene after the collision had occurred. His was re- description to a stricted of the scene and his observations of the lying along motorcycle. on the street with the plaintiff’s second witness City, was Charles Gibson of the Kansas Kansas, Department, Police who testified in substance follows: 17, 1974, April On Gibson was a officer with traffic investigated motorcycle-truck He division. accident involved Following investigation scene, this case. prepared at the of accident. Gibson was not familiar motorcycles with *4 and he could not from motorcycle’s determine the condition operation it whether was disabled from aas of damage result received the collision. damage There was no the truck. point impact Gibson the determined motorcycle of between the and right truck to be at the extreme side the of truck behind the right-dual persons wheels. No reported at the they scene had seen the collision. There was no debris on the street from the impact itself. The officer observed he what described as skid gouge marks or marks on the thirty-nine street. He measured feet gouge marks which he angling westerly described as in a point from beginning corner, direction their going to the in a thirty-nine gouge feet of marks around the corner. radius at by motorcycle. When he arrived the apparently made west, Greeley facing Street scene, truck on the defendants’ 11th approximately at the west curb of dual with the wheels lying immediately behind Street. The had moved. He found Neither vehicle been right-dual wheel. or mirrors. Because lights, signals, turn no defects condition, take a plaintiff’s physical Gibson did not statement any never time obtained plaintiff at the scene. Gibson from the as accident. Lollis to his version statement from at the scene with defendant truck driver Officer Gibson talked told up and what led to it. Defendant Manard about the accident Street, right making 11th the officer that he was southbound on of an Greeley. He heard the noise go turn to westbound on truck, “somebody impact, stopped and saw that had slid into truck.” right rear of his cross-examined defense counsel. It Officer Gibson was then the claim of trial error now cross-examination which raises cross-examination, Gibson before the court for determination. On driver, that, upon the the truck testified statements of based officer’s) (the positions speculation part, the final on his marks, vehicles, he at the time of gouge determined right making truck turn and question, incident roadway. straight The wit- going down he had if made ness was then asked the defense counsel either driver determination to what action on the as objection Plaintiff’s have contributed to this incident. hearsay speculation
question required an answer based on objected question was sustained. Counsel also factors contained grounds that as to The trial court in a are not admissible into evidence. as what he state his conclusion ruled that the witness could conclusion, if the founda- reached his found and how he again to his testified Officer Gibson then tion were laid. deter- thirty-nine feet marks and his gouge observation motorcycle. He observed they came from the mination that scene. position arrived at the of the vehicles by defense counsel questions were then asked following given officer Gibson: answers you you Now, at the scene did factors that observed there those based on “Q. *5 investigative may as an to some conclusion officer as to what driver’s action come have contributed to this incident? object being improper purposes I that as for the “FIELDS: to foundation the record. may “COURT: He answer. Yes, “A. sir. any object “FIELDS: I further answers. question. you “RUSHFELT: Let me ask the next Rased on those factors that observe, your respect regard did what was in that with conclusion to the driver’s you your report? that action contributed to incident show it there on objection “FIELDS: Renew our basis no foundation. “COURT: Overruled. You answer. one, illegally speeded “A. Driver number which would be the Honda had and closely. followed too you Did show action the driver of the “Q. truck? “A. None.” Following answers, questions these and Gibson testified that did not talk to the and did not know his version of the they were, nevertheless, but that the best conclusions he could come to under circumstances he at found the scene. plaintiff’s
On counsel, redirect examination the officer tes- tified that he to the motorcycle came conclusion that moving speed or illegal solely totally at an unsafe presence the gouge marks. He did talk not to the driver of the motorcycle anyone nor had else who had seen the movement of prior motorcycle vehicles collision. He did not see the collision; prior nobody to the motorcycle told him how fast going time of the again collision. Officer Gibson stated motorcycle that his conclusion that the going illegal at an unsafe solely wholly was based on the fact that cycle thirty-nine skidded feet laid down gouge some marks prior place he found it be lying at the time he arrived at regard the scene. In to his conclusion that following closely, nobody too Gibson testified that at the scene prior impact told him that the beer truck was driving well out into the middle street and signaling to make a left-hand turn and that the was attempting pass the truck in right-hand the clear agreed lane. He if those facts were correct, typical it was not the rear-end Nobody situation. at the scene told him that those facts. The first time he heard happened version what was right then at trial. Officer Gibson did think he would have come to different conclu- sions had he heard the version out at the scene. Gibson *6 weigh job testified that it was his at the scene to and facts isn’t, telling make determinations to who is the truth and who physical along with the evidence at the scene. It clear that the police only only officer talked to defendant Manard and received story. one side of the counsel,
On recross-examination defense officer Gibson that, testified as of the date of the he had been a member years ten force for and had investigated excess of accidents, involving thousand all kinds of vehicles. officer contributing also stated that circumstances are of his Later, report. prior official resting his counsel upon moved for mistrial based the admission of officer Gibson’s conclusions as to the actions of the drivers which contributed to the accident. This motion was denied. presented
There was other evidence at the trial which need not appeal. important be considered for a determination of the It is note, however, testified, at the time officer Gibson neither plaintiff Lollis nor defendant Manard had taken the stand to respective their versions as happened. to how the accident only of officer Gibson actually was based on what he observed at the scene and what he was told at the scene defendant Following Manard. a verdict in favor of the defend- ants, plaintiff appealed Appeals, to the Court claiming several Appeals trial errors. The Court of affirmed the trial court. This granted court review on the sole issue of whether the trial court permitting erred in testify officer Gibson to on cross-examination concerning his conclusions in the accident discussed above.
We have concluded that the district in admitting court erred conclusions of officer Gibson as to the contributing factors to First, accident proper for two reasons: there was no foundation conclusions; second, laid for the officer’s and the conclusions of officer as to the factors were not subject testimony. We will each these consider Spraker Lankin, separately. 609, 612, matters 218 Kan. 545 (1976), recognized experienced police P.2d 352 we officers troopers Patrol, Highway having requisite and the Kansas experience training, frequently have been to ex- press opinions highway as to the of vehicles involved collisions, scene, including based evidence observed at the
258 travel, marks, point impact, damages to the skid
direction of vehicles, in which the vehicles came to rest. We and the location receipt by accident evidence noted also ap- experts physicists frequently has been reconstruction opinions of proved by this court. We further observed that experts may helpful to a court or in motor vehicle cases eyewitnesses a collision. How- particularly where there no ever, reasonably opinions must be based accurate data such data, compu- at the scene. Where there is little factual available upon assumption speculation not be based should tations Hall, In Smith v. 215 Kan. received evidence. Estate of (1974), police report we held that a of an accident P.2d hearsay character investigation which contains statements of *7 part report preparing on the of the officer conclusions emphasized an not admissible as substantive evidence. We expert’s opinion expression opinion is not admissible where an pass upon require credibility him would of witnesses or disputed weight of evidence. police
In a number of cases
court has held that
officer’s
“contributing
an
as to
factors” to
automobile
report,
distinguished
on his accident
from his
noted
conditions,
physical
recorded observation as to
are inadmissible
Smith,
218,
evidence.
In Morlan v.
191 Kan.
P.2d 312
into
(1963),
report
improper
the accident
contained the statement “no
driving
portion
indicated.” The court held the admission of that
report
prejudicial
to be
error. The court reasoned
report
and,
place,
hearsay,
secondly
the first
state
—the
ment,
indicated,”
improper driving
pure
“no
was a
conclusion on
investigating
dealing
very question
officer
with
jury
impaneled
try.
negligence
Again
which the
in Allen
Ellis,
(1963),
v.
191 Kan.
Turning to the factual as to the actions of the testified that his conclusions Gibson upon the to the accident were based drivers which contributed marks, at the thirty-nine the locations of the vehicles gouge feet of scene, the scene of of the truck driver made at and the statement plain- police that the The conclusion of the officer the accident. thirty mile-per-hour exceeding the tiff’s assumption limit, upon the necessity, had to be based prior to pavement marks on the occurred thirty-nine gouge feet of attempt applied in an the brakes the collision as arriving at his stop motorcycle and thus avoid the collision. relied, at least in illegal speed, the officer as to conclusion *8 Manard, him hearsay made to part, upon the statement weigh the officer had to concluding, In so driver of the beer truck. version of the completely reject ignore or marks testimony gouge was that Officer Gibson’s accident. point westerly their in a direction from angle seemed to went in a radius around and then to the corner beginning that both sides There was corner. together. This bent the handle bars were damaged and that motorcycle collided with prove tending
was evidence and under the the street dragged, along then was the truck and the street surface. made on truck, marks to be causing gouge impact. point indicate on the street to was no debris There before the apply his brakes that he did not plaintiff testified 260 impact.
time
evidence
This
was not known to officer
Gibson
prepared
report.
circumstances,
the time he
his
Under
we
prejudicial
conclude that it was
error
for
court to admit
into
police report
evidence the
officer’s
conclusions
his
driving
illegal
speed,
at an
rate of
following
closely,
too
these actions contributed to the
accident, and, further,
that he found no actions of the truck driver
which
the accident.
judgment,
contributed to
In our
there was
insufficient
factual data to serve as a foundation for the officer’s
based,
clearly
conclusions. The conclusions were
part,
at least in
hearsay
statements of defendant Manard made at the
scene,
accept
and the officer had to
these statements as true to
circumstances,
reach his conclusions. Under the
the trial court
admitting
erred in
the officer’s conclusions
into evidence.
We
now turn to the contention of the
that the conclu-
sions of officer Gibson were inadmissible because such conclu-
proper subject
expert
sions were not a
testimony.
for
Prior to the
statutory
enactment of the
rules of evidence contained in the 1964
(K.S.A.
Kansas Code of Civil Procedure
seq.),
60-401 et
various
general
Kansas decisions stated the
opinions
rule to be that the
of a witness
should not be received in evidence.
Many decisions, however,
recognized,
exception
as an
general rule, that a
having special
witness
knowledge
quali-
subjects
special
fications on
requiring
skills and studies could
testify
opinion
as to his
expertise.
matters within
field
The basis
expert opinion
for the admission of
testimony was said
(Erb
necessity.
to be
Popritz,
264,
[1898].)
Kan.
261 understanding The jury in the material evidence. assist qualifications experience and of held that the normal court where given laymen jurors permit them to draw conclusions from circumstances, expert opinions facts and conclusions It is and circumstances are inadmissible. drawn from facts state, way, simply different that these observations obvious necessity, expert testimony of that the basis for the admission is arising particular circumstances of case. out expert testimony limiting The rule the introduction stated and followed in Massoni is through- generally rule followed See, (Sixth example, for on out the United States. Evidence Jones Edition, Gard) 14.28, quoted 14.27 and which is in the §§ Ed., Massoni opinion. Law 3rd In 11 Blashfield Auto Revised Evidence, 431.1, Trial it is stated: § testimony subject-matter compli- “Expert only be received where the is should Expert elementary knowledge. cated and embraces or of common masters it,
testimony jury along get where the and it is is not desirable can without only likely jury. admitted to be of aid to the opinions possession “. . A witness . state or conclusions when in subject-matter thereof, special inexperienced knowledge skill or and if likely incapable persons prove forming judgment a correct without 607.) opinion.” 602, (pp. 604 & witness’ rule, opin- applying there is In this one situation where have universally ultimate issues almost been held to ions on fact improper cases it negligence be inadmissible. In automobile all of evidence on sides and submit to witness both (Jones injury. what accident or ask him was the cause Edition, 14.27.) question Gard] Evidence [Sixth § admissibility expert’s of or of an as to the cause to an automobile accident has caused factors Ziegler Crofoot, difficulty. some Kan. court (1973), patrolman, investigated who had highway P.2d 954 question, on cross-exami- intersection collision testify, objection, that in his written under nation over “Contributing Circumstances” he showed that the column yield right-of-way; regard driver failed to appeal, driver, On defendant he indicated “None.” challenged urging of this admission province ultimate facts which “usurped by stating jury’s for the final determination.” should have been reserved *10 court, judgment was affirmed the majority opinion divided 60-456(d) expert pointing testimony out that under K.S.A. in the opinions objectionable form of otherwise admissible is not be- cause it embraces the ultimate issue or issues to be decided syllabus trier of fact. The in court held 7 that in an intersection ¶ accident, 60-456(d) if requirements met, all of the of otherwise expert may give opinion an to be as to actions and any, parties, circumstances if which contributed to note, however, It important accident. is page to that on 487 of the opinion, permit stated that court to an give opinion on was at in causing objection- who accident fault permitted. able and should not be again
The issue was in before the court Massoni v. State Commission, Highway supra. In that the investigating highway patrolman found, was asked what he “if anything, contributing have been the circumstance to this An accident?” objection question to the overruled. The witness answered stating that cause of report accident listed on his improper overtaking on the one the vehicles in involved the collision. It should noted question be that the same was asked highway patrolman in both Ziegler and Massoni —whether any the officer had determined contributing factors the ac- highway patrolman cident? In each case the marked on his report accident certain boxes as contributing circumstances They the accident. testify both were they asked to as to what marked they accident both so In testified. Massoni, a majority of Ziegler the court held to be distinguish- able on the basis that the Ziegler opinion officer in gave his as to parties what actions of contributed to the whereas Massoni the officer testified who was at in causing the fault collision. Mr. Owsley Massoni, dissented in stating that Justice was unable to draw meaningful distinction between “contributed” to a collision and “caused” a collision with rela- tion to the of a witness. majority court in Massoni held that the officer’s
conclusion as to who causing fault the accident was improperly received since the matters at issue in the case were not sufficiently beyond the common knowledge ordinary persons an expert helpful would be jury. complicated case words, of a or technical nature. In other qualifi- experience and the normal was one where the situation draw laymen jurors have enabled them to would cations of opinions. the aid of conclusions without situation, expert It is difficult is inadmissible. such a why the factors any logical reason issue beyond experience and a matter the normal to the accident was Ziegler, of who laymen jurors issue qualifications of within the causing the accident was held was at fault in Mas- jurors laymen experience qualifications normal soni. *11 Massoni case, Ziegler we have reconsidered between “caus-
have the conclusion that the distinction reached a an accident” is distinc- ing “contributing an accident” and to quarrel We no with the rule a difference. have tion without Lankin, experienced police Spraker v. supra, recognized in that experts, experi- requisite having and reconstruction the officers express opinions as to training, should be to ence and highway in when based of vehicles involved collisions at scene of the includ- the evidence observed travel, marks, point impact, damages ing of direction skid of vehicles, in came to rest. and the location which the vehicles concluded, however, highway patrolman or other We have expert properly opinion as which of the may not state either his causing opinion parties was at fault in an accident or con- parties An to the accident. cerning what actions contributed must, to an accident negligence act of which contributes We note that necessity, part causing have least a the accident. at Dictionary (3rd ed.), Third New International in Webster’s “to have a defined in a sense as “contribute” is causal word Likewise, “contributing” is effect.” the word share in act or We, producing something part “has a an effect.” as defined case, an therefore, negligence hold that an automobile witness, expert, investigating police an officer or another whether any, if parties, opinion to what actions of state his causing at or as who was fault to the collision contributed Crofoot, supra, Ziegler specifically overrule the collision. We Commission, supra, insofar as Highway v. State Massoni an in an permit witness those decisions par- concerning what actions negligence case automobile ties, any, if contributed to collision. presented officer Gibson this case was
highly prejudicial. always is danger There that a will be impressed overly police gives officer who impression being public authority. clothed with In this cases, emphasized inas most counsel for defendants report section the accident designating “Contributing report. Circumstances” was of the officer’s We must official recognize performance that a officer in the duties is required to fill out the accident scene of the accident. complete investigation At that time no of the accident has been Quite frequently made. unknown witnesses accident turn up At usually later. scene officer does not have the time to physical reflect present facts and circumstances and to along consider them conflicting with versions of the accident standpoint from reliability of different witnesses. The aof police officer’s conclusions pertaining recorded at the scene “contributing very circumstances” suspect. is its nature Issues as to who negligent and whose negligence contributed to or caused an automobile properly collision should be left for deter- jury. mination the members of the That their function in a jury trial.
For the reasons set forth judgment above the of the Court of Appeals affirming the district court judgment is reversed. The the district court is reversed and the case is remanded *12 to district court grant with directions plaintiff-appellant a new trial. J., concurring. provides: K.S.A. 60-456
Fromme, “(a) testifying If the is witness not as an his or her in the form opinions opinions or inferences judge is limited to such or as inferences (a) may rationally finds perception (b) based on the of the witness and are helpful understanding testimony. clearer of his or her “(b) testifying expert, testimony If the is witness as an of the witness in the opinions opinions (1) form or judge inferences limited to such as the finds are perceived by personally based on facts or data or known or made known hearing (2) scope special skill, witness at the knowledge, within experience possessed training the witness. “(c) judge Unless the excludes the he or she shall be deemed to have requisite finding made the its admission. “(d) Testimony opinions form of or inferences otherwise admissible objectionable under this article is not because it embraces the ultimate issue or issues to be decided the trier of the fact.” When Officer proper Gibson testified at the trial no foundation had been laid for the officer’s and it was reversible speculative error to admit his conclusions as to the circumstances which contributed to the accident.
However, interpret I provisions of the above statute (a) witness, subsection authorizes after a foundation laid, opinions has been opinions if rationally such are perception based on the helpful witness and ato clearer understanding testimony. of his or her An qualified may give perception based on both and facts other- wise made (d) known to him at the hearing. specifi- Subsection cally says opinions that if such they are otherwise admissible objectionable they because embrace the ultimate issues to be decided the trier of the fact.
I disagree with that majority opinion which has the (d) effect of nullifying subsection of the statute. J., joins foregoing opinion. concurring
McFarland,