*1 47,051 No. Ziegler, and Western Appellant, W. Crofoot
Lester John Inc., a Coporation, Appellees. Associates,
(516 954) P. 2d Opinion 8, 1973. filed December Johnson, cause, argued N. Schroer, Topeka, and Leo E. Gene appellant. Grove, him on the brief was with
Council Briman, Cogswell, Topeka, Palmer, Goodell, Casey, & E. Rice Arthur *2 Rice, firm, cause, formerly argued of the was with him Ernest same J. appellees. for the the brief o£ court was delivered by The as a result of a two comеs vehicle appeal This Fromme, J.: 17, 1969, on K-177 north of highway
intersection accident January Grove, Council Kansas. driving Lester was his truck east on plaintiff, Ziegler, pickup high- road and turned south at intersection onto the township way. The defendant W. Crofoot on said driving was south John trial
highway. The issues in the were the of negligence involved defendant by reason of the of his vehicle under the dark and speed foggy conditions then existing, contributory negligence plaintiff by reason of failing right-of-way defendant’s vehicle. The returned a defendants’ verdict and plaintiff appeals.
The questions raised relate to the solely of testi- admissibility Reed, given on cross-examination Don by mony highway patrol- man who accident and investigated the made an accident report. The accident occurred at 6:25 m. The p. patrolman at the arrived scenе twelve minutes later. During the patrolman quali- fied as an years with sixteen in accident experience investigation. No is raised here as to his general quali- fications.
On direct examination the patrolman testified concerning the physical facts himby during observed investigation his including measurements as to and location skidding vehicles, of the measure- ments of the road, highway the township weather and road conditions, surfаce identity vehicles and statements by drivers. He testified on direct examination that the physical facts observed were recorded on an accident report prepared by him.
The third page this report drawing contained a on which he recorded the pertinent measurements at the scene and the routes traveled by the vehicles. Defendant’s attorney objected to the introduction this drawing unless thе whole report admitted in evidence. objection overruled and the drawing admitted in evidence. cross-examination to the relate appeal raised questions the second page On attorney. defendant’s by
of this witness con- circumstances certain had noted the report accident X marks had indicated The patrolman the accident. tributing 1 (the plain- number that driver the form spaces providеd number and as to driver right-of-way, failed to yield had tiff) no actions were indicated there defendant) (the the patrolman progressed to the accident. As the cross-examination the circumstances which as to give seemed hesitant continued attorney Defendant’s contributed to the accident. acci- second using page press cross-examination by That part recollection. dent to refresh thе report patrolman’s it had previously prepared was not in been evidence After the of his duties. patrolman’s the course asked, recollection was following questions refreshed the answered and now in the record: appear *3 “By [attorney Mr. for defendant] Rice: time, now, Trooper: “Q. you You have in front of Let me ask one more you (showing part your report do, you Exhibit C to the same that I don’t cоmparison). witness for documents) (Examining Yes, “A. both sir. “Q. you question: upon your investigation, Let me Based based ask this upon your upon experience, upon your training, all based and based you investigation scene, you gleaned your factors found at the that from entire accident, night, day, you your report of this both that the next did —answer yes contributing you any or no—indicate whether determined there were cause, actions on Mr. Crofoot’s toward this accident? Yes, I “A. did. [attorney plaintiff] Now, minute; just minute, a a wait “Mr. Schroer: just object question. place, proper I minute. to that In that is not a the first question; laid; things hearsay, there’s no foundation him to consider asked further, certainty probability and that is not within the realm reasonable required be, thing, report, as it’s and —and it a different than means trying it, what Mr. Rice is a conclusion make of and it asks him to state without fоundation. yes No; overruled. Answer or no. “The Court: yes. He said “Mr. Rice: sorry. you say yes? Oh—I’m Did “The Court: Yes. “Witness:
“By Mr. Rice: investigation “Q. you your your And did as a indicate result of any contributing part official insofar as on the of Mr. action Crofoot concerned? objections. Schroer: Same
“Mr. right. “The Court: All ‘Contributing required my report circumstances’ to indicate "A. On I’m all one drivers of vehicles. and/or right. “Q. All part that I indicate Mr. I found could On Mr. Crofoоt’s Crofoot “A. —on
‘None’,-— n Now, experience your training your “Q. upon your based and years Highway Patrol, you investigated, the various accidents have with accident, upon your investigation night all and based that of this factors through investigation night you your made known to and the next official day, you yes your did determine —answer this or no—as result investi- gation, you opinion, any and did form an as to whether or not there were Ziegler part factors on as this Mr. insofar accident’s con- yes cerned? And answer that or no. “A. Yes. right; “Q. All and what was that? objections “Mr. Schroer: Same I made earlier. right; All “The overruled. Court: They my report, do, ‘Contributing “A. show as I’m circum- stances’, Ziegler, being and on Mr. I who indicate Driver No. I show right way. that he failed to questions.”
“Mr. Rice: No further Basically, contentions are plaintiff’s the patrolman’s was not based opinion testimony sufficient foundation facts that said testimony usurped province of the jury by stating ultimate facts which should have been reserved for the jury’s final determination.
The Code of Civil Procedure governs the admissibility and other opinion testimony. our present case the patrolman testified as an expert. His qualifications in field of accident investigations were not Our questioned. Kansas Statutes Annotated *4 bearing upon subject an testimony by expert are follows: Testimony opinion “60-456. in form of “(a) opinions non-experts.] [Relates to “(b) testifying If expert, testimony witness as an of the witness in opinions the form of opinions or inferences is limited to such judge as the finds perceived are by based on facts personally or data or known or made hearing known to the witness at the scope and within the of the special knowledge, skill, experience training possessed by or the witness. “(c) judge Unless testimony excludes the shall he be deemed to have finding requisite made the to its admission. “(d) Testimony in the form of or inferences otherwise admissible
484 issue embraces the not because it under this article is trier of the fact. issues to be decided or may Preliminary judge require that a witness examination. The “60-457. concerning testifying opinion examined inference be first in terms of or before opinion upon or is fоunded. data which the inference calling necessary. Hypothesis expert opinion not Questions “60-458. unless hypothetical in form opinion not be for the of an witness need opinion may requires, state in his discretion so but an based as specifying it is on which and reasons therefor without first data may hypothesis otherwise; upon be or cross-examination specify data.” such cer- there are statutes argues under abоve plaintiff in the evidence must be established tain which first preconditions Under (b) be may given. before of the must 60-456, testimony supra, argues such plaintiff made or known facts data “based on perceived personally an must be the patrolman known to the He contends witness”. acci- to the cause eyewitness perceive contributed dent. 518, Co., 538, it v. 431 2d 199 Kan. P. Casey Phillips Pipeline
is said: upon testimony requires “K. S. A. base his 60-456 personаlly perceived by him at the facts to him or known to or known made through hearing. acquired knowledge own senses one’s ‘Perceived’ means (K. [c]), put S. A. 60-459 known’ in evidence.” ‘made refers facts (Syl. fl.) thrust is that plaintiff’s argument necessary eyewitness the accident and that it therefore became to frame a all the facts hypothetical question encompassing might circumstances the accident before his surrounding Hildebrаnd be admitted have held See evidence. We otherwise. Rouse, Mueller, 506, 509, 587; v. 2d Kan. 449 P. v. McElhaney 136, 241, & 144, 197 Kan. v. Staudinger Pipe P. 2d Sooner 100, Corporation, 103, Supply 208 Kan. 2d 619. 490 P. In Staudinger based K. S. 60-457 this court upon A. held when is not advised of material sufficiently relevant matters prerequisite first judge may him require to be further concerning examined data will be founded. In Howard Stoughton, 199 Kan. 787, 790, 433 P. 2d in an action to determine injuries plain- resulting collision, tiff from an intersectiоn it held a hypo- thetical only of the related portion facts is not including *5 the facts some presented witness is if the manner, study depositions, other as by previous acceptable accident. The quali- said charts, concerning diagrams pictures admissibility testimony fications of an and unless judge, are discretion of matters within sound made he shall be deemed have testimony excludes the Maxwell, 197 Kan. v. admission. findings (Taylor its requisitе 509, 511, to admission findings requisite 419 P. 2d To be admissible expert’s supra. forth in opinion are set 60-456 (b), per- based on facts data should testimony ceived made witness at the known or known personally skill, trial and ex- knowledge, within the scope special perience or the witness. training possessed by
The plaintiff foundation facts does not specify particular are lacking before necessary patrolman could be givеn as to to the accident. contributing circumstances After the witness had properly testified on permitted the for conduct further redirect attorney plaintiff to 60-458, examination as After suggested supra. reading the record we feel certain that relatively whatever foundation facts were pre- viously lacking counsel in the fully explored by experienced redirect examination and in the recross-examination which followed.
Plaintiff further contends the foundation testi- mony was insufficient because
state that his opinion as to circumstances was based on reasonable probabilities. No are cited cases by plaintiff sup- port of this particular requirement and we know of We none. believe that plaintiff confusing the requirements needed generally for opinion testimony by medical to establish a propеr causal relation between a given accident and a resulting impair- ment Wilson, or disability. See v. 443, 447, Nunez 211 Kan.
An expert as to testifying investigation accident highway should not be permitted to give opinion testimony based on con jecture speculation (Staudinger Sooner &Pipe Cor Suрply poration, supra), but if his testimony amounts to an honest expres sion of professional opinion that is sufficient its justify admission if the requirements of K. S. A. 60-456 (b) are otherwise met. *6 the witness claim to his relates contention final Plaintiffs usurped thereby fact and to an ultimate testify to as permitted
was in the past time of period There was a the jury. of the province When years. for many the courts harassed when problem towas jury whiсh the issue the same involved expert’s opinion invaded question that the urged commonly was objection decide it objection Therefore, around this to get the the jury. of province mythical of the form the in expert was to ask of customary questions situation analogous be in an as his would opinion to what inquiry toway the same that it in which the could infer applied from jury be- jury way the about the issue in the case In round being triеd. particular the applied came informed of the to expert’s opinion 40 in This in are discussed case. this area practice changes the Testi- Ladd, 437, Opinion Law Other Expert Minn. Review mony. Civil Procedure to the advent of our Code of prior present
Even the calling in changed Kansas. practice Questions the the expressed of an witness need not in form opinion be form, in dis mythical in unless the his inquiry, hypothetical may opinion cretion so state his requires. the all which reasons therefor first data on specifying without is based he bemay cross-examination all data. K. When specify 60-458.) such basic S. an ex (See A. pert is not from testifying personal personal knowledge subject examination of the in its discretion inquiry still in v. require questions hypothetical (Staudinger form. may Sooner &Pipe Supply Corporation, test of supra.) comрe of an is tency expert witness whether he discloses sufficient knowl of the
edge subject of his inquiry to entitle go juiy, question of degree knowledge more goes weight of than to v. admissibility. (Casey Phillips Pipeline Co., supra, Syl. 2.)¶
Under 60-456 supra, (d), testimony in the form opinions or inferences otherwise admissible is not it because to; embraces the tN'mate issue issues be the trier decided 509, fact. v. (Atkins 1, 233; Kan. Syl. 204 P. 464 2d Noland Bayer, ¶ Sears, v. Co., Roebuck & 207 Kan. 483 P. 2d Syl. 1029.) ¶ 72 However, opinion testimony not without limitations and although an expert witness may permitted to give bearing the he issue do so may only insofar as the opinion aid will in assist technical facts or when it will jury interpretation the material evidence. jury understanding (Staudinger & Pipe Sooner Supply Corporation, Syl. supra, ¶ In the case opinions requested under consideration the and given were directed to tire actions if any, cоntributed parties, cause accident. We believe the on this would assist die understanding summarizing material in the and it was objectionable. evidence relies case of Frase v. appellee Henry, strongly F. 2d 1228 where the Tenth Circuit Court of had Appeals a similar before asked it. that case who at and he that vehicle number 2 failed replied found fault That right-of-way for vehicle number 1. court after examining our statutes cautioned that there still exists assurances *7 against of the admissions which tell what opinions merely jury result to reach. only It stated that are to up admissible where point expression would the to require pass weight the or credibility question of the evidence. The together with the in that answer case were held not unresponsive to be such that the jury would be to abdicate its prevailed upon function or responsibility for reаching independent judgment on the negligence ultimate issues of and contributory negligence. The court said the free jury was the knowledgeably weigh evi- dence, credit the wisdom of its witnesses arrive at own finally verdict.
This court feels that to give permit who atwas an accident is causing objectionable and should fault be permitted. Frase the tenth circuit court that recognized the . “patrolmans . . per- [came] ilously close to telling the what results jmy should be reached.” permitted the testimony to stand because the patrolman fault, further explained if was any, based a failure to yield right-of-way. In addition the court attached significance to the trial judge’s cautionary instruction which preserved ultimate decision for the jmy.
In the case present the form of questions and the answers are not same subject to this objection. ques- tion mеrely called conclusion as to patrolman’s what actions any, if parties, contributed to the accident. The jury fault, free make the ultimate as to decisions con- negligence the require- if all In an intersection accident tributary negligence. bemay per- met an expert 60-456 are otherwise S. A. ments K. circumstances of the as to actions and give mitted to the accident. contributed any, if parties, is affirmed. judgment is a step I think the dissenting: majority opinion J., Owsley, in the adminis- for improvement in the search unending backward I dissent. and must justice tration 60-456, majority opinion, permits as construed K. S. A. that at the time he made his testify officer an investigating police “Contributing the title Cir- on the under report marked report Under failed to right-of-way. the plaintiff cumstances” that he was per- under the same circumstances heading and the same defendant, in reference to “None indicated.” to testify mitted to such statements on conclusionary was made No reference Defendant, on cross-examina plaintiff. direot examination as to the cause any refused to state tion, after the officer accident, submit to the objections over permitted many part disclosed. For this state years the report to acts negligence an officer’sstatements as covering on the ground denied admission and cause of an accident were Smith, conclusions. they hearsay (Morlan and were 380 P. 2d Kan. can be is in the statute which construed to cover said
Nothing written The statute aimed at inferences report. officer’s police while The rule expressed by testifying. a witness stated or opinions *8 by in Morían has not been K. S. A. 60-456. affected a police report, if the officer’s applies testimony Even statute therein remains inadmissible. repeating conclusionary statements that are not (cl) provides opinions K. S. A. 60-456 the ultimate issue in a trial if such they because embrace majority The fails consider the phrase, are “otherwise admissible.” admissible”, in its construction in the statute. The rules “otherwise the law by relating expert case and developed expert opinions testimony The in applicable. following are still rules stated the still be applied: authorities must may “Although usurp jury weighing an not function of the deciding are, arriving
the evidence and facts the at a quite reasonable factual conclusion from the evidence is believed is This, function, too, jury in or other matters technical another matter. like, jury knowledge, skill, experience, requiring special and or the may judge trying quite aid who under- the cаse at sea without the of those experience mysteries they or no in such matters. better than of little stand the may general rule to the effect that a ‘If it be said that still exists there may upon fact, express an ultimate issue of it is ob- not into vious that the extensive relaxation of the rule turns it what amounts an expression by receipt the courts of even reluctance reserve jury for the which would seem to substitute the witness final On basis to be confusion decision. this what would seem may reflecting conflict be looked as a trend toward a common sense and arbitrary an view. This common sense view is to receive the testimony appears it that where the trier the fact would be assisted rather impeded problem.” (Gard, than in the solution of Jones Evidence, Opinion Testimony, §14.28, p. 660.) determining expert testimony “The crucial consideration in whether should subject inquiry be received is whether ‘. . . is one of such knowledge ordinary common that men of education could reach a conclusion intelligently whether, hand, as the witness or on the other the matter is sufficiently beyond experience common would (People Cole, supra, assist 103; Witkin, the trier of fact.’ 47 Cal. 2d Evidence, 367). p. (Smith [2d California 1966] ed. . . .” v. Lock- §409 Propulsion Co., 774, 783, heed Rptr. 128, 247 C. A. 2d 56 Cal. 29 A. L. R. 3d 538.) [M]any expert opinion “. . . courts which testimony state that is not prove merely admissible to applying general ultimate fact in issue are excluding testimony rule necessity such admission, where there is no for its in some proposition cases this is demonstrated the statement of the expert opinion testimony concerning an ultimate fact in issue should not be admitted unless its admission is demanded the necessities of the case.” (31 2d, Expert Opinion Evidence, 22, p. Am. § Jur. these rules
Relating to the o£ the provisions statute should we reach the results in following negligence cases:
(1) opinions of witness on the ultimate issues should be permitted only when to an necessary understanding expertise matter of his testimony. opinions of an expert witness in a scien- tific field should not be permitted unless they aid the in its. jury determination of the ultimate facts. testimony of an expert witness in a scientific field should not include his opinion on the ultimate issues when the testimony in his field of expertise permits a to determine ultimate issues with equal intelligence to that of the witness. these
Applying rules of to the law facts in case, I am satisfied the statements made in the officer’s report as to the ultimate issues *9 the officer first place,
were inadmissible. testimony. Further- of his expert not essential to conclusion on more, have reached an intelligent could officer. In рolice my issues as could readily judg- have been limited officer should police ment marks, cars, con- relating to facts skid speed, position conditions, conditions, weather road tributing like I matters. conclude the trial erred permitting officer disclosed act of police testify specific accident, negligence that it contributed to plaintiffs that the the defendant testify report disclosed was not guilty any contributing acts of negligence. in the J., foregoing dissent. Prager, join
Fontron J.