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04/18/95 BILLY RAY KILCREASE D/B/A/ KILCREASE &

April 18, 1995

BILLY RAY KILCREASE D/B/A/ KILCREASE & SONS LOGGING
v.
JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY AND JOHN DEERE CREDIT SERVICES, INC.



Appeal from Crenshaw Circuit Court. (CV-93-22). H. Edward McFerrin, TRIAL JUDGE.

As Corrected May 5, 1995. The Name of this Case has been Corrected by the Court. Rehearing Denied June 9, 1995.

Jones, Retired Justice. Shores, Ingram, Kennedy, and Cook, JJ., concur. Houston, J., concurs in the result.

The opinion of the court was delivered by: Jones

JONES, RETIRED JUSTICE.

John Deere Industrial Equipment Company and John Deere Credit Services, Inc. (referred to collectively as "John Deere"), brought this action to recover a deficiency allegedly owed by Billy Ray Kilcrease, following the repossession and sale of logging equipment that Kilcrease had purchased from and financed with John Deere. Kilcrease counterclaimed, alleging fraud, breach of contract, conversion, and a commercially unreasonable Disposition of the collateral (the logging equipment). See Ala. Code 1975, §§ 7-9-504, -506, and -507. The court entered a judgment on a jury verdict for John Deere on its claim and on Kilcrease's counterclaim; Kilcrease appealed.

We need address only one of the issues raised by Kilcrease: Whether the trial court erred in rejecting the testimony of Kilcrease's proffered "expert" witness, James W. Skelton; and, if so, whether the error requires a reversal of the judgment. We answer both questions in the affirmative, and reverse and remand.

At trial, in support of his contention that John Deere had sold the collateral in a commercially un reasonable manner, Kilcrease offered the testimony of James W. Skelton, whom he presented as an expert witness. On appeal, Kilcrease contends that the trial court committed reversible error in sustaining John Deere's objection to Skelton's testifying as an expert on the issue of commercial reasonableness of the sale of the collateral.

The trial court is vested with wide discretion in accepting or rejecting the qualifications of an expert witness. Tidwell v. Upjohn Co., 626 So. 2d 1297 (Ala. 1993). We hold, however, that that discretion was abused here with respect to the witness Skelton, who had wide experience as an appraiser of used logging equipment. Skelton also had experience in the "financing end" of the logging equipment business, having worked at various times for several lending entities involved in the financing of heavy equipment. It is for the jury to determine the weight and credibility of an expert witness's testimony. State v. Holloway, 293 Ala. 543, 307 So. 2d 13 (1975).

Two sections of the Code are pertinent:

"Section 12-21-114. Market value testimony.

"Direct testimony as to the market value is in the nature of opinion evidence; one need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion."

"Section 12-21-160. Expert witnesses.

"The opinions of experts on any question of science, skill, trade or like questions are always admissible, and such opinions may be given on the facts as proved by other witnesses."

See, also, Johnson v. State, 378 So. 2d 1164 (Ala. 1979); and C. Gamble, McElroy's Alabama Evidence ยง ...


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