American Family Mutual Insurance Co. v. Lacy

FENNER, Judge,

dissenting.

I respectfully dissent. I believe that the evidence was sufficient to avoid summary judgment.

My disagreement with the majority is in regard to the admissibility and probative effect of Deputy Sheriff Cook’s statements that “it sure looked like he [Staffers, who was American Family’s insured] lined it up and just hit that car head on,” and that he saw Staffers’ car “going straight for the blue [Turner] vehicle at a high rate of speed,” as well as defendant Turner’s statement that although he (Turner) attempted to pull over to avoid Staffers, the Staffers car moved from its traffic lane and appeared to “take aim” at his car.

While generally a witness must state facts from which jurors are to form an opinion, when a witness has personally observed an event, the witness may testify to matter of fact comprehension of what the witness has seen in a descriptive manner which is actually a conclusion, opinion or inference, if the inference is common and accords with the ordinary experiences of every day life. Travelers Indemnity Company v. Woods, 663 S.W.2d 392, 399 (Mo.App.1983) (allowing testimony that furniture in question was “real nice furniture”); citing State v. Morrow, 541 S.W.2d 738, 742 (Mo.App.1976) (allowing testimony that one person “pointed” at another).

Furthermore, witnesses are permitted to express their observations in terms understandable to the average person, even though the term utilized is a summary of a condition of sensory impressions. Travelers Indemnity Company v. Woods, 663 S.W.2d at 399 ; citing Whitney v. Central Paper Stock Company, 446 S.W.2d 415, 419 (Mo.App.1969) (holding that testimony that wood was “rotten” should have been allowed). The test for allowing such testimony being that “when it is impossible or extremely difficult for a witness to convey an accurate and actual meaning, and the nature of the thing described may be more clearly and practically conveyed to the jury by a summary of the witness’s impressions, or by comparison with some ordinary object or condition familiar to the court or jury, then the practical administration of justice requires acceptance of the testimony even though it may be, in a sense, the conclusion of the witness.” Travelers Indemnity Company v. Woods, 663 S.W.2d at 399 ; citing Whitney v. Central Paper Stock Company, 446 S.W.2d at 419 ; also citing State v. French, 476 S.W.2d 509, 512 (Mo.1972) (allowing a description of clothes as “flashy”); See also Brown v. Kroger Company, 358 S.W.2d 429 (Mo.App.1962) (allowing testimony that a carton of Pepsi “was discolored like it had been wet”).

The statement by defendant Turner that although he attempted to pull over to avoid Staffers, the Staffers car moved from its traffic lane and appeared to “take aim,” as well as the statements by Deputy Sheriff Cook that the Staffers’ car was “going straight for the blue [Turner] vehicle at a high rate of speed,” and that “it sure looked like he [Staffers] lined it up and just hit that car head on,” clearly and practically convey to the jury the witness’s impressions of the movement of the Staffers car. The above statements convey the witnesses’ impressions in terms understandable to the average person, where it was otherwise difficult for the witness to convey the accurate and actual meaning in order to put the finder of fact in the witness’s place. A witness’s testimony should not be so limited to a recitation of pure facts to such an extent that the finder of fact is precluded from being able to receive the witness’s true observation to enable the fact finder to be able to equally well draw the inference of the witness. See Brown v. Kroger Company, 358 S.W.2d at 95 .

I believe that the testimony of Deputy Sheriff Cook and defendant Turner, as previously set forth, was admissible. In my opinion, this testimony, together with the testimony of Officer Burton describing the movements of the Staffers car, presents a *317 genuine issue of whether or not Stoffers acted intentionally. 1

I would reverse the decision of the trial court granting summary judgment.

. As recited in the majority opinion, Officer Burton testified as follows in regard to his observation of the movement of the Stoffers car:

Q. And did you see the Chevrolet [Turner vehicle] before the collision?

A. Yes.

Q. Tell me what you saw it do.

A. Well, it was headed south, we were going north. We were in pursuit of this vehicle, being the red Datsun [Stoffers vehicle]. He [Stoffers] made an adjustment in steering so as to align his car up with the front of the other car. The other car, being the Chevrolet, reacted by slowing down and pulling closer to the shoulder of the road. When he did that, the driver of the Datsun made another adjustment so as to line up with the front of the vehicle, with the front of the oncoming car, and after that, the crash happened.

Q. You were able to observe the driver [Stof-fers] make those adjustments?

A. Yes.

Q. You were able to see the upper part of his body as though he was turning the steering wheel?

A. Well, he had his hands on the steering wheel and you would see him purposely, in my judgment, of course for whatever that's worth, he had an adjustment to that end, yes.

Q. You saw him do that?

A. Yes.

[Objections by counsel].

[[Image here]]

Q. And you saw this driver turn once in the direction of the oncoming Chevrolet?

A. Correct.

Q. And then you saw the Chevrolet take what appeared to be evasive action?

A. Correct.

Q. Any (sic) you saw the driver of the Dat-sun realign the steering wheel so as to keep on a direct line with the Chevrolet?

A. Right.