Thompson v. Vanlandingham

David Newbern, Judge,

concurring. Although I agree with the result and the basis for it stated by the majority, I believe the appellant’s points for reversal should be addressed.

The appellant contends the trial court erred in admitting into evidence a repair estimate of $913.77 (the amount of the judgment) which the appellee had obtained from Billington Buick, Inc. The appellee contended it was admissible because of Ark. Stat. Ann. § 28-1001, Rule 703 (Repl. 1979). The rule states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the heaing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

While Rule 703 permits an expert to base his opinion upon “facts or data,” it does not permit him to present another expert’s opinion, which is what occurred here. Thus, I agree with the appellant that the trial judge erred in allowing the appellant to submit the Billington estimate with his testimony. However, I find the error was harmless.

The appellant’s second point for reversal is. that the court erred in basing its decision upon the improperly admitted evidence. In his findings, the court referred to the Billington estimate as the “best evidence’of the measure of damages. Regardless of the court’s apparent reliance upon the erroneously admitted evidence, I cannot say the lower court’s judgment was clearly erroneous or clearly against the preponderance of the evidence, A. R. Civ. P., 52 (a), given the appellant’s own testimony to which the majority opinion refers.