Foreman v. Minnie

No. 83-344
IN THE SUPREME COURT OF THE STATE OF MONTLNA

1984

DIANE KAY FEELEY FOREMAN,
Plaintiff and Appellant,

MICHAEL LEE MINNIE, YELLOWSTONE
COUNTY, MONTANA and BOB SMITH
LINCOLN-MERCURY, INC.,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

Joseph P. Hennessey, Billings, Montana

For Respondents:
Keefer, Roybal, Hanson, Stacey & Jarussi, Billings,
Montana

Submitted on Briefs: May 31, 1984
Decided: Xugust 9, 1984
f i r . J u s t i c e J o h n Conway H a r r i s o n delivered t h e Opinion of
the Court.

Appellant brings t h i s appeal from a jury verdict in

the Thirteenth Judicial District, Yellowstone County, for

the defendants. The j u r y found t h e r e s p o n d e n t s n o t l i a b l e

for the injuries appellant sustained in an automobile

a c c i d e n t b e t w e e n a s h e r i f f ' s d e p u t y ' s v e h i c l e and a v e h i c l e

i n which a p p e l l a n t r o d e a s a p a s s e n g e r . W affirm.
e

On March 1 5 , 1 9 7 7 , a p p e l l a n t ( t h e n a g e 1 5 ) a c c e p t e d a

ride from school with Bradley Shaw. They drove around

Billings for a few hours. They stopped at appellant's

parent's h o u s e and a l s o stopped a t a drive-in for dinner.

Following this period of driving around, looking for and

visiting friends, Shaw p u r c h a s e d a " s i x p a c k " o f b e e r a t a

l o c a l bar. Be t h e n d r o v e up t o t h e "Rimrocks" to "park,"

d r i n k b e e r and l i s t e n t o m u s i c .

About 8:30 p.m. they s t a r t e d to return t o Billings.

Around t h e same t i m e , a s e v e r e a c c i d e n t o c c u r r e d on t h e west

s i d e of B i l l i n g s . The s h e r i f f ' s o f f i c e d i s p a t c h e d d e p u t i e s

M i c h a e l Lee M i n n i e and C h a r l e s Maxwell t o i n v e s t i g a t e and
a s s i s t a t the accident scene. They d r o v e t h e i r p a t r o l c a r s

out of Billings, with s i r e n s b l a r i n g and emergency l i g h t s

f l a s h i n g , i n a w e s t e r l y d i r e c t i o n on Route 3 p a r a l l e l t o t h e

"Rimrocks." Evidence differs as to the speed of

respondent's vehicle, but it exceeded 65 m i l e s per hour.

Respondent drove approximately between one-eighth and

one-quarter o f a m i l e a h e a d o f Maxwell.

Shaw d r o v e h i s v e h i c l e from 2 3 r d S t r e e t and t u r n e d o u t

i n f r o n t of r e s p o n d e n t o n t o Route 3 . Respondent, a p p a r e n t l y

unable t o s t o p or a v o i d c o l l i d i n g w i t h Shaw, slammed into
the side of Shaw's vehicle. Both cars skidded off the
highway and into the barrow pits on different sides of the
road.
A day or two after the accident, appellant requested
that an officer search the Shaw vehicle for some jewelry she
had lost. The officer conducting the search found several
empty beer cans and bottles, a few full beer cans and some
drug paraphernalia.
Both appellant and Shaw admitted consuming at least
one beer during the course of the evening. They admitted
having consumed some marijuana prior to the date of the
accident, but adamantly denied having consumed any marijuana
on the date of the accident.
Just prior to the trial, appellant's attorney sought a
motioi~ in limine to preclude the admission of any evidence
of the discovery of the drug paraphernalia in Shaw's
vehicle. The District Court denied appellant's motion. A
jury then found respondents not liable for the injuries
appellant suffered as a result of the accident.
Appellant raises the following issues for appeal:
(1) Did the District Court err in permitting Deputy
Maxwell to testify as an expert witness and state his
conclusion as to the cause of the accident?
(2) Did the court err in giving a jury instruction
regarding the statutory prohibition against driving under
the influence?
(3) Did the court err in denying appellant's jury
instruction regarding not imputing appellant's negligence
from the negligence of Shaw?
(4) Did the court err in denying appellant's motion in
l i m i n e t o p r e c l u d e t h e admission i n t o evidence of the drug

p a r a p h e r n a l i a f o u n d i n t h e Shaw v e h i c l e ?

( 5 ) Did the jury render a verdict contrary to the

e v i d e n c e and l a w ?

Appellant first contends that the court erred in
p e r m i t t i n g Deputy t l a x w e l l ' s t e s t i m o n y r e g a r d i n g t h e c a u s e o f

the accident under Rule 704, Montana Rules of Evidence.

There was no n e e d for such testimony because the subject

matter was not beyond the ordinary understanding of the

jury. She a l s o q u e s t i o n s D e p u t y M a x w e l l ' s q u a l i f i c a t i o n s a s

an expert witness in this case. He also improperly

t e s t i f i e d r e g a r d i n g t h e l e g a l c a u s e of t h e a c c i d e n t .

W e set forth the standard that the determination of

the qualification and c o m p e t e n c y of expert witnesses r e s t s

l a r g e l y with t h e t r i a l judge, and w i t h o u t a showing o f an

abuse of discretion such determination w i l l not be

disturbed. Goodnough v . State (Mont. 1 9 8 2 ) , 647 P.2d 364,

39 St.Rep. 1170. This Court affirmed a trial court's

determination that highway patrolmen meet necessary

q u a l i f i c a t i o n s t o t e s t i f y a s expert witnesses f o r automobile

a c c i d e n t s a n d p e r m i t t e d them t o t e s t i f y r e g a r d i n g t h e c a u s e

of the accident. Goodnough v. State, supra; Workman v.

M c I n t y r e C o n s t r u c t i o n Co. (Mont. 1980), 617 P.2d 1281, 37

St.Rep. 1 6 3 7 ; Rude v . Neal ( 1 9 7 4 ) , 1 6 5 Mont. 520, 530 R.2d

428.

Appellant contends that Deputy Maxwell was not the

investigating officer at the accident and t h e r e f o r e would
not qualify as an expert witness. Maxwell was at the

a c c i d e n t s i t e , h e w i t n e s s e d t h e a c c i d e n t and a s s i s t e d i n t h e

accident investigation. T h a t combined w i t h h i s e x p e r i e n c e
clearly qualifies him as an expert.
Appellant contends Maxwell stated the legal cause of
the accident in his testimony which was inadmissible.
Maxwell made the following statements in his testimony:
"Q. [By counsel for respondents] Do you
have an opinion, based upon your
experience and based upon all of your
knowledge of this case, as to whether or
not there was any violation of law by
Bradley Shaw in this case?
"MR. HARTMAN [counsel for appellant] :
Qbject, Your Honor, on the grounds it
calls for a legal conclusion.
"THE COURT: Overruled. You may answer.
"A. Yes.
What is that opinion?
"A. I believe that he just failed to
yield the right of way because of, I
believe, alcoholic beverages.
"Q. Do you have an opinion, Officer
Maxwell, as to whether or not Officer
Minnie, at the time and place immediately
preceding the collision, was driving in a
lawful and careful manner and in control
of his vehicle?
" J R HENNESSEY [counsel for appellant] :
iI.
If the Court please, there has been no
foundation for this testimony, it invades
the province of the jury, it's immaterial
and it's not a proper question.
"THE COURT: The objection is overruled.
You may answer.
"Q. What is that opinion?
"A. I believe that he was driving in a
correct and legal manner, sir."
While Maxwell testified as to what he considered the
cause of the accident, adequate opportunity was given to
appellant to elicit any assumptions or facts underlining the
expert opinion. Therefore, the weight of the testimony
remains with the jury and the testimony was properly
admitted .
A p p e l l a n t a l s o c o n t e n d s t h a t t h e e x p e r t t e s t i m o n y was

u n n e c e s s a r y b e c a u s e t h e c a u s e of t h e a c c i d e n t was n o t beyond

the ordinary understanding of the jury. Appellant cites

Ployhar v. Board of T r u s t e e s of M i s s o u l a (Mont. 1 9 8 0 ) , 609

P.2d 1 2 2 6 , 37 S t . R e p . 744, f o r s u p p o r t .

We find the facts in the instant case dissimilar to

Ployhar , supra. Ployhar involved the accidental death

c a u s e d by heavy e q u i p m e n t b e i n g b a c k e d o v e r t h e t o p o f the

decedent. The i n s t a n t c a s e i n v o l v e s a n a c c i d e n t w h e r e t h e

parties alleged different f a c t o r s caused the accident.

A p p e l l a n t must have b e l i e v e d t h e c a u s e of t h e a c c i d e n t was

complicated because she brought in an expert witness to

testify regarding the speed of the vehicles. As was

properly s t a t e d i n the d i s s e n t i n Ployhar, supra:

"This Court h a s long h e l d t h a t e x p e r t
t e s t i m o n y s h o u l d b e a d m i t t e d whenever t h e
issue before the jury concerns a subject
of s u c h a n a t u r e t h a t t h e a v e r a g e p e r s o n
cannot reach a s i n t e l l i g e n t a conclusion
a s o n e who h a s had e x p e r i e n c e w i t h t h e
subject. S e e , D e m a r a i s v. Johnson
( 1 9 3 1 ) , 90 Mont. 3 6 6 , 3 7 0 , 3 P.2d 2 8 3 ,
285." P l o y h a r a t 612 P.2d a t 1228,
( H a r r i s o n J. d i s s e n t i n g ) .

We hold in the instant case that the trial court

properly determined the subject matter required expert

t e s t i m o n y s o a s t o a s s i s t t h e j u r y and i t p r o p e r l y a d m i t t e d

Maxwell's testimony.

We turn to the next issue regarding the jury

instrilctions. Appellant contends t h e t r i a l c o u r t e r r e d by

admitting t h e fol.lowing j u r y i n s t r u c t i o n :

"You a r e i n s t r u c t e d t h a t Montana S t a t u t e s
provide t h a t it is unlawful f o r any
p e r s o n who i s u n d e r t h e i n f l u e n c e o f
a l c o h o l o r a n a r c o t i c d r u g t o d r i v e o r be
i n a c t u a l p h y s i c a l c o n t r o l of a motor
 v e h i c l e upon t h e h i g h w a y s o f t h i s s t a t e . "
Appellant argues that i n s u f f i c i e n t e v i d e n c e came into the
trial to warrant the giving of this instruction. We

disagree.
C o u r t ' s i n s t r u c t i o n no. 1 3 w h i c h i n s t r u c t s t h a t i t i s
u n l a w f u l t o d r i v e a motor v e h i c l e w h i l e u n d e r t h e i n f l u e n c e
of a l c o h o l o r n a r c o t i c s , should be read along w i t h c o u r t ' s

i n s t r u c t i o n no. 1 8 :
" I f you f i n d f r o m t h e e v i d e n c e t h a t a
person i n t h i s a c c i d e n t conducted himself
i n v i o l a t i o n o f a n y s t a t u t e , you a r e
instructed that such conduct was
n e g l i g e n c e a s a m a t t e r of law.
"However, i n t h i s a c t i o n , a v i o l a t i o n o f
law is o f no c o n s e q u e n c e u n l e s s i t was a
p r o x i m a t e c a u s e of o r c o n t r i b u t e d a s a
p r o x i m a t e c a u s e t o an i n j u r y f o u n d by you
t o h a v e b e e n s u f f e r e d by t h e p l a i n t i f f . "
No o b j e c t i o n was made by t h e a p p e l l a n t t o t h e g i v i n g
of this instruction. The b a s i c i s s u e t o be d e t e r m i n e d by
t h e j u r y i n t h i s c a s e was t h e d e g r e e o f n e g l i g e n c e , i f any,

on the part of the drivers of both vehicles. Under
i n s t r u c t i o n no. 1 8 , i t becomes a p p r o p r i a t e t o i n s t r u c t t h a t

if t h e d r i v e r o f t h e c a r i n which a p p e l l a n t was r i d i n g was
under the influence of alcohol or narcotic drugs while

driving, then it s h o u l d be considered a s negligence a s a
m a t t e r of law. R e a d i n g t h e two i n s t r u c t i o n s t o g e t h e r , i t i s

c l e a r t h a t no. 1 8 c l a r i f i e s no. 1 3 and i t becomes a p r o p e r
i n s t r u c t i o n on t h e l a w o f t h e c a s e .

I n t h e i n s t a n t c a s e , e v i d e n c e i n d i c a t e d Shaw consumed
a t l e a s t one beer p r i o r t o t h e a c c i d e n t . Several beer cans
and b o t t l e s were found i n t h e v e h i c l e , a l s o a n o f f i c e r f o u n d
drug p a r a p h e r n a l i a i n Shawls v e h i c l e . S u f f i c i e n t evidence
indicates that Shaw could have been driving under the
influence. W hold the t r i a l court properly instructed t h e
e

j u r y on t h i s m a t t e r .

Appellant contends the court erred by failing to

provide a jury instruction regarding not imputing the

n e g l i g e n c e of Shaw t o a p p e l l a n t . A b s e n t a showing o f j o i n t

e n t e r p r i s e t h e n e g l i g e n c e of a d r i v e r o f a v e h i c l e c a n n o t b e

imputed t o a p a s s e n g e r .

W e f i n d no e r r o r occurred i n t h e omission of giving

appellant's instruction. No c o m p a r a t i v e n e g l i g e n c e t h e o r y

in this case implied that plaintiff acted negligently to

cause her i n j u r i e s . The c o u r t m e r e l y i n s t r u c t e d t h e j u r y t o

decide if the a c t s of the respondents were the proximate

c a u s e of the accident. Because t h e j u r y d i d n o t c o n s i d e r

appellant's negligence, if any, in the determination of

respondents' negligence, then this instruction became

unnecessary.

Appellant next argues t h e c o u r t e r r e d i n denying her

motion in limine to exclude evidence of the drug

paraphernalia found in Shaw's vehicle. She asserts its

prejudicial effect outweighs the probative value of this

evidence. We disagree.

In the instant case, the prejudicial effect of the

evidence d i d not outweigh its probative value. While b o t h

Shaw and appellant testified that they did not smoke any

m a r i j u a n a on t h e d a y of t h e a c c i d e n t , t h e y d i d a d m i t smoking

it p r e v i o u s t o t h a t day. E v i d e n c e a l s o i n d i c a t e d Shaw had

owned the vehicle for a short t i m e prior t o the accident.

Because the paraphernalia was found in the vehicle, that

would tend to show Shaw was a c t i v e l y consuming c o n t r o l l e d

s u b s t a n c e s w i t h i n a few d a y s of t h e a c c i d e n t . The e v i d e n c e
of drug paraphernalia possibly impeaches appellant's and

Shaw's testimony and supports the theory that Shaw's

negligence caused t h e a c c i d e n t . W e t h e r e f o r e hold t h e t r i a l

c o u r t p r o p e r l y denied t h e motion i n l i m i n e .

Appellant f i n a l l y contends t h e j u r y rendered a v e r d i c t

contrary to the law and the facts. She contends the

evidence c l e a r l y demonstrates respondent acted negligently.

W disagree.
e

In reviewing the sufficiency of the evidence we
"review the evidence in a light most favorable to the

prevailing party. We will reverse o n l y where there is a

l a c k of s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e v e r d i c t . "

"If t h e r e is c o n f l i c t i n g e v i d e n c e i n t h e r e c o r d , the

c r e d i b i l i t y and w e i g h t g i v e n t o s u c h c o n f l i c t i n g e v i d e n c e i s

t h e p r o v i n c e of t h e j u r y and n o t t h i s c o u r t . " Anderson v.

J a c q u e t h (Mont. 1 9 8 3 ) , 668 P.2d 1063, 1064, 40 St.Rep. 1451,

1 4 5 3 , c i t i n g G u n n e l s v. Hoyt (Mont. 1 9 8 1 ) , 6 3 3 P.2d 1 1 8 7 , 38

St.Rep. 1492.

Evidence a t t r i a l indicates respondent's v e h i c l e was

traveling between sixty-five and ninety miles per hour.

Evidence also indicated Shaw pulled out in front of an

emergency vehicle with its siren blaring and its lights

flashing. Shaw a d m i t t e d consuming some a l c o h o l , and s e v e r a l

beer c a n s and b o t t l e s and d r u g p a r a p h e r n a l i a w e r e f o u n d i n

h i s vehicle. Clearly s u f f i c i e n t evidence existed t o support

the jury's verdict. We hold the jury had substantial

evidence t o j u s t i f y the verdict.

The v e r d i c t is h e r e b y a f f i r m e d .
W e concur:

7 4 4
Chief
4. u
&
ust tic&
d

Justices
 I would reverse and remand for a new trial holding that
it was error to permit the investigating officer to give
opinion testimony regarding the cause of this accident.
This Court has been liberal in allowing law enforcement
officers to testify about the cause of an accident. The time
has come to reeval-uate our evidentiary position.
Some law enforcement officers have, through training,
acquired some knowledge which may allow them to properly
testify as expert witnesses on matters of accident
reconstruction. However, the training of these officers
should be confined to those areas where they do have some
expertise. For instance, an officer may be able to estimate
speed from skid marks. Likewise, an officer may he able to
determine a point of impact from gouge marks and debris. On
the other hand, there is no basis for an officer testifying
that the cause of an accident was failure to yield the
right-of-way because alcoholic beverages were consumed. This
type of opinion testimony is totally lacking in foundation.
The officer is in no better position to draw such a
conclusion than are individual jurors. 'We would not allow
the officer's opinion reflected in the issuance of a ticket
for traffic violation, to be admitted into evidence.
Likewise the officer's oral testimony about his opinion
regarding law violations should not receive our judicial
blessing.
The admission of the officer's testimony in this case
exceeds even the precedent previously set by this Court. I
believe the time has come to rein in the testimony of law
enforcement officers and properly confine that testimony to
those areas where the officer actually has some expertise
apart from that held by our people generally. Therefore, I
would reverse and remand for a new trial. C

L
I concur with Justice Morrison.

QL
sfice
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11