State Highway Commission v. Arnold

PERRY, J.,

specially concurring.

I concur generally in the law of the case as expressed in the opinion of the majority. However, I must disagree with the obiter dictum expressed as follows:

“Even though Mr. Wahto or the other testing engineers had not been called to testify Holbrook would have been entitled to testify as to the value *80 of the cone, basing his opinion in part upon the disclosed reports of laboratories.”

Certainly, there are many situations in the law where hearsay evidence must be admitted because the law cannot insist upon impossible standards, but this is not one of them. Under this statement, through the guise of an exception to the general rules governing hearsay evidence, there is admitted for the consideration of the jury the opinion of another expert which may not be tested by cross-examination. The jury is thus permitted to accept as true a premise unestablished by competent evidence and which relates directly to the quality of the product whose value is in dispute.

The fallacy of such a procedure must, it seems to me, be at once apparent, for the jury, in order to evaluate the opinion of the expert on value, must of necessity evaluate the premises upon which the opinion is based.

While I concur in the result, I must dissent from this expression of the majority and any other language in the opinion that can be interpreted as enlarging the general rules of law relating to hearsay evidence. Even if I was disposed to enlarge the exceptions to the hearsay rules which are designed to cause a judgment to be rendered upon facts and not rumor, the authorities relied upon by the majority do not extend the enlargement as far as the majority would infer it should be extended.

The excerpt from 58 Yale Law Journal 1242, 1263, so far from supporting the opinion is opposed to it. The writer there says that experts representing a recognized and tested science may base conclusions on “the reported data of fellow scientists and technologists, despite its hearsay character.” He concludes “but if the scope of the expert’s qualification * * * falls short, then he is likely to be confined to the interpreta *81 tion of specified data already in evidence.” The cases cited for the exception to the general rule, relied upon in McCormick on Evidence, p 33, § 15, are all to the same effect.

On appellant’s petition for rehearing.

Since Mr. Holbrook, although a competent real estate appraiser, is not an engineer or a minerologist or a scientist of any sort, he would be confined in Ms testimony in the manner indicated by the author of the Yale Law Journal article.