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Powell v. State Farm Mutual Automobile Insurance Co.10/18/2005
W.2d 430, 433-34 (Mo. App. 1976) . When a witness testifies that he "believes" a certain fact, his testimony is "objectionable and should be rejected." Galovich v. Hertz Corp. , 513 S.W.2d 325, 335 (Mo. 1974)(quoting Armstrong v. Croy , 176 S.W.2d 852, 853 (Mo. App. 1944)) . Even if received without objection, such testimony "is of no probative force or evidential value and definitely so if the witness is not testifying as an expert." Id. (quoting Armstrong , 176 S.W.2d at 853) . And even if a witness is qualified to express his opinion, such testimony will be rejected unless the term employed sufficiently appears to be used to express his opinion. Id. (quoting Armstrong , 176 S.W.2d at 853-54) . Officer Powell was not testifying as an expert, expressing his opinion on the question propounded. His belief that his employer paid his medical bills did not constitute substantial evidence that it did. Additionally, the question identified Officer Powell's employer as the City of Kansas City but other evidence in the record showed that the Board of Police Commissioners was his employer. So, even if Officer Powell's testimony justified a finding that the City of Kansas City paid his medical bills, it was questionable whether the City of Kansas City was his employer.
While the parties had an opportunity to make legal arguments on the issue of whether the offset provision of the insurance policy applied in this case, no hearing was conducted to introduce necessary evidence regarding the issue. The trial court apparently considered the exhibits attached to State Farm's motion to reduce the verdict in ruling that State Farm was entitled to offset the verdict by $9,011.44. The exhibits were accepted as true without any opportunity for Officer Powell to contest or introduce evidence on the amounts or application of the provision. Because an evidentiary hearing on State Farm's motion was not conducted, the trial court lacked a factual basis for deciding the issue. See Prewitt, 979 S.W.2d at 525 (where trial court did not hold evidentiary hearing on whether juror intentionally failed to disclose material information, court had no evidence before it to determine issue). The judgment of the trial court is, therefore, reversed, and the case is remanded to the trial court to conduct a hearing to elicit evidence regarding application of the offset provision, to make appropriate findings of fact, and to render its judgment. See Id.
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