instruction proper where third-party driver encountered collision caused by others and did not in any way create the emergency himself
How later courts described this case
- instruction proper where third-party driver encountered collision caused by others and did not in any way create the emergency himself
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, dissenting. I disagree that the Thomsons’ counsel failed to object to Officer Jeffers’s testimony. The investigating officer had been called as the plaintiffs’ witness, but on cross-examination the questioning veered off into how the officer assessed fault in the accident. The attorney for the Thomsons immediately stopped the trial and asked for a sidebar conference. At that conference, outside of the jury’s hearing, this exchange occurred:
- Thomsons’ Counsel: Your Honor, I’m not sure where this is headed.
Defense Counsel: I think he knows where it’s headed. I am going to ask him if he found any fault in this accident and go through the contributing factor section of his report. I have no intentions of asking him about citations. I don’t think that’s admissible; but I think I can ask his findings.
Thomsons’ Counsel: I don’t think it would be proper to go through the fault section of the report, Your Honor, in this particular situation.
Defense Counsel: He qualified him over a hundred ■ accident investigations. ■
BY THE COURT: As long as you stay away from citations I don’t have a problem.
It was obvious to the three participants what was at issue. And the trial court ruled on the matter.
The majority says Thomsons’ counsel made no.objection. Presumably, had counsel stated, “I object to going through the fault section of the report” as opposed to “I don’t think it would be proper to go through the fault section of the report,” the majority would be satisfied. I see little or no distinction between the two statements. In Black’s Law Dictionary, “objection” is defined as the “act of a party,” which is “[u]sed to call the court’s attention to improper evidence or procedure.” Black’s, p. 1073 (6th Ed. 1990). The term is further defined as an “adverse reason or argument.” Id. All of the requirements for an objection were met in this case. In viewing what occurred here, it is too restrictive to have the decision turn on whether the word “object” was used.
I further disagree that the grounds for the objection were unclear or imprecise. This was a sidebar conference. The Thomsons’ counsel objected to the officer’s testimony as to fault. True, the Thomsons embellished on that argument in their appeal, but the core objection was made at trial. Our Rules of Evidence state that specificity of the grounds asserted may be determined from the objection or the context. Ark. R. Evid. 103(a)(1); Philmon v. State, 267 Ark. 1121 , 593 S.W.2d 504 (1986). Here, both pertain. In other words, it is obvious from counsel’s statements and the context what the basis for his objection was — an investigating officer may not opine as to which parties were at fault.
Here, Officer Jeffers proceeded to give his opinion:
DEFENSE COUNSEL: Did you find any contributing factors to this accident whatsoever?
JEFFERS: There was one contributing factor; yes, sir.
DEFENSE COUNSEL: And, what was that?
JEFFERS: That was the vehicle that was cited for following too closely.
DEFENSE COUNSEL: And, what vehicle was that?
JEFFERS: That would have been the vehicle of the Riechmanns.
DEFENSE COUNSEL: Did you find any contributing factors on the part of the Allen Jones vehicle?
JEFFERS: No contributing factor.
DEFENSE COUNSEL: Did you find any contributing factors on the part of the Deborah Thomson vehicle?
JEFFERS: No contributing factors.
DEFENSE COUNSEL: Did you find any contributing factors on the part of Ted Tritt’s vehicle?
JEFFERS: No contributing factors.
DEFENSE COUNSEL: Did you as a result of your accident investigation satisfy yourself that Ted Tritt’s actions and inactions that may have occurred were not a contributing factor to this event?
JEFFERS: I was completely satisfied that Mr. Tritt was not a factor in this collision.
The impact of this testimony was clearly immense, and counsel’s objection, just as clearly, was voiced to the trial court. I find no basis for the majority’s conclusion that the Thomsons’ counsel “acquiesced” in this testimony in any respect. I would hold that an objection was made on specific grounds and reach the merits of this issue. I respectfully dissent.
Holt, C.J., and Roaf, J., join.