NO. 83-452
IN THE SUPREICE COURT OF THE STATE OF MONTANA
1934
MITZI SCOFIELD, as Personal Representative
of the Estate of DANIEL C. SANDERS, Deceased,
Plaintiff and Respondent,
ESTATE OF JAMES J. WOOD,
Defendant and Appellant.
........................................
ESTATE OF J A m S J. WOOD, GLEN P. WOOD,
and ROSALYN JUNE WOOD,
Counterclaimants, Cross-Plaintiffs
and Appellants,
MITZI SCOFIELD, as Personal Representative
of the Estate of DANIEL C. SANDERS, Deceased,
Counterdefendant, Cross-Defendant
and Respondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Leroy McKinnon, Judge presiding.
COUWSEL OF RECORD:
For Appellants:
Landoe, Brown, Planalp, Kornmers & Lineberger;
Gene I. Brown, Bozeman, Montana
For Respondents:
Christine C. Parker for Scofield, Dillon, Montana
Thomas 3 . Scott, Dillon, Montana
C. Richard Anderson, Butte, Montana
----- -.- . . --
Submitted on Briefs: April 5, 1984
Decided: June 27, 1984
Clerk
Mr. Chief Justice Frank T. Haswell delivered the Opinion of
the Court.
The James J. Wood estate appeals a iudgment awarded
against it in the sum of S24,000 based on a jury verdict
finding decedent 80 percent negligent and plaintiff Daniel J.
Sanders 20 percent negligent in an action for wrongful death
in the Beaverhead County District Court.
Decedent Wood was proceeding north on Highway 4 . in
1
Beaverhead County and decedent Sanders proceeding south on
the same highway when the two vehicles collided about eight
miles north of Dillon, Montana. The drivers of both vehicles
had been drinking beer the evening immediately prior to the
early morning accident. The vehicl-es collided in decedent
Sanders' lane of travel, and both drivers were killed. A
passenger in Sanders' vehicle recovered from the accident but
was unabl-e to recall any details of the accident. Blood
samples taken from Sanders and Wood, £011-owing their demise,
indicated blood alcohol levels of .22 percent by volume for
Sanders and .04 percent blood alcohol 1-eve1 517 volume for
Wood.
The personal representative of Sanders' estate brought
an action for wrongful death against Wood's estate. Wood's
estate and his parents counterclaimed and filed a cross-claim
against Sanders' personal representative in what they labeled
a survival action.
A jury trial was held June 1-3, 1983. The investigat-
ing highway patrolman testified that the accident occurred
because the Wood vehicle was over the centerline and in
Sanders' lane of travel. During the settlement of jury
instructions, prior to the conclusion of testimony, the court
indicated that an instruction on blood alcohol levels was
necessary. However, the court did not give the instruction
as indicated. The jury rendered a verdict in favor of Sand-
ers' estate and awarded damages in the amount of $24,000.
Wood's estate appeals the judgment and a subsequent survival
action filed by Sanders' representative.
The following issues are presented in this appea.1:
1. Was the highway patrolman's testimony concerning
the cause of the accident properly admitted in evidence?
2. Was it reversible error for the trial court to fail
to give a jury instruction regarding blood alcohol levels
after it had indicated. it would?
3. Is a survival action a compulsory counterclaim to a
counterclaim asserting such a survival action, or may it be
brought ind.ependently in a subsequent lawsuit?
Appellant objects to the foll.owing testimony by the
highway patrolman:
"Q. Frank, during your investigation,
did any person inform you that the Sand-
ers vehicle had been swerving prior to
the accident? A. No.
"Q. Was there any evidence that the
Sanders vehicle was not in control at the
time of the accident? A. No.
"Q. From your investigation, you made a
determination as to which vehicle caused
the accident. A. Yes.
"Q. And what is that determination?
A. I would say that the Wood vehicle was
over the centerline in the Sanders lane
of traffic."
This evidence was admitted following an in-chambers
discussion between counsel and the presiding judge. Counsel
for Sanders argued that there is controlling Montana case law
permitting such testimony. We agree.
The highway patrolman was the investigating officer and
arrived on the scene shortly after the accident. By his own
testimony, he had experience investigating hundred-s of
mul-tiple-vehicle accid-ents. His qualifications as an expert
witness were not challenqed at trial. He testified that he
measured scuff and skid. marks, noted the resting positions of
the vehicles, examined damage to the vehicles, mapped gouge
marks in the pavement and noted the accident site's relation
to nearby features of the highway as a part of his investi-
gation. From the information gathered at the accident site
and twenty-nine years of experience as a highway patrolman,
he concluded the point of impact was across the centerline in
Sanders' Lane of travel-.
In Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428,
this Court held that as long as an officer is properly quali-
fied as an expert and is in possession of sufficient facts to
warrant the conclusions stated, expert opinion evidence is
admissible in expl-aining the cause of the accident.
Additionally, Rule 704, Mont.R.Evid., provides:
"Testimony in the form of an opinion or
inference otherwise ad.missible is not
objectionable because it embraces an
ultimate issue to be decided hy the trier
of fact."
A l s o see, Pachek v. Norton Concrete Co. (1972), 160 Mont. 16,
499 P.2d 766 (where ultimate question of negligence of driver
or proximate cause of injuries not addressed by testimony,
opinion of patrolman as to cause of accident admissible);
State v. Stoddard (1966), 147 Mont. 402, 412 ~ . 2 d827 (pa-
trolman with ten years of experience assigned to accident
investigation allowed to state his opinion as to the point of
impact) .
Appellant also objects to the patrolman's testimony on
the ground that his statements concerning absence of evidence
of prior weaving of the Sanders' vehicle were speculative and
exceeded permissible expert opinion. This objection is
without merit.
Appellant failed to object at the time of trial to the
opinj-ons. Rule 103 (a)(1), Mont.R.Evid., places a burden upon
the party at trial. to object and state the specific ground of
objection. An objection raised for the first time on appeal
is not timely. Berdine v. Sanders County (1.974), 164 Mont.
206, 520 P.2d 650. Unless a timely objection to evidence or
testimony is raised at the trial level, it cannot be consid-
ered on appeal. Sikorski v. Olin (1977), 174 Mont. 107, 568
P.2d 571; In re Stevenson (1975), 167 Mont. 220, 538 P.2d 5;
Close v. Ruegsegger's Estate (1963), 143 Mont. 32, 386 P.2d
739. No objection to the testimony of the highwa-y patrolman
was made, and none appears in the record. The grounds stated
for objection on appeal were not stated at trial., nor for
that matter, were any grounds given at all. Appellant failed
a t trial. to preserve this issue for appeal. Counsel must
preserve the record to perfect appellate review of an issue.
Goggams v. Winkl-ey (1972), 159 Mont. 85, 495 P.2d 594; Clark
v. Worra.11 (1965), 146 Mont. 374, 406 P.2d 822.
Furthermore, the claimed prejudice could have been, and
in fact was, alleviated through cross-examination. In the
absence of a showing of an abuse of the trial court's discre-
tion, its decision should not be disturbed on appeal. Graham
v. Rolandson (1367), 150 Mont. 270, 435 P.2d 263.
The next issue concerns the withdrawn jury instruction
on blood alcohol levels. The instruction was offered by
defenda.nt Wood ' s estate. Proposed. instruction no. 36 reads
as follows:
"You are instructed that the laws of the
State of Montana recognize the foll-owing
presumptions:
"(a) If there was at the time 0.05% or
less by weight of alcohol in the person's
blood, it shall be presumed that the
person was not under the influence of
alcohol.
"(b) If there was at the time in excess
of 0.05% but less than 0.10% by weight of
alcohol in the person's blood, that fact
shall not give rise to the presumption
that the person was or was not under the
influence of alcohol.
"(c) If there was at the time 0.10% or
more by weight of alcohol in the person's
blood, it shall be presumed that the
person was under the infl-uence of
alcohol. I
'
The statute provides:
" ( 3 ) In any criminal prosecution for a
violation of subsection (1) of this
section relating to driving a vehic1.e
while under the influence of alcohol, the
amount of alcohol in the defendant's
blood at the time alleued, as shown by
chemical analysis of the defendant's
blood, urine, breath, or other bodily
substance, shall give rise to the follow-
ing presumptions:
' (a) If there was at that
I time 0.05% or
less by weight of al.coho1 in the defen-
dant's blood, it shall be presumed that
the defendant was not under the influence
of alcohol.
" (b) If there was at that time in excess
of 0.05% but less than 0.10% by weight of
al-coho1 in the defendan.tlsblood, that
fact shall not give rise to any presump-
tion that the defendant was or was not
under the influence of alcohol but such
fact may be considered with other compe-
tent evidence in determining the guilt or
innocence of the defendant.
"(c) If there was at that time 0.10% or
more by weight of alcohol in the defen-
dant's blood, it shall be presumed that
the defendant was under the influence of
alcohol. " Section 6 1 - 8 - 4 0 1 ( 3 ) , MCA
(1981).
At the close of the second day of trial and before the
defense had completed its testimony, counsel and the court
settled the instructions to he given the jury. During this
conference counsel for plaintiff objected to the foregoing
proposed instruction no. 36 on the ground that the presump-
tions stated in the proposed instruction are applicable only
to criminal trials. After noting that the jury needed some
guidance on the effect of blood alcohol levels on perfor-
mance, the judge stated the instruction was helpful and he
knew of none other to give.
The following day the defense called its final witness,
Kenneth Anderson, a forensic scientist employed at the Mon-
tana State Criminal Investigation Laboratory. Anderson
testified on the physiological effects of various levels of
blood alcohol.
At the time the jury was instructed, proposed instruc-
tion no. 36 was omitted. No objection was raised by defense
counsel.
It is obvious that, at the time of this trial, the
controlling statute on presumptions arisinq from blood alco-
hol levels was applicable only to criminal prosecutions for
driving while under the influence of alcohol. The plain
language of the statute so provides, and there is nothing for
the court to interpret. Mont. Ass'n. of Underwriters v.
State, Etc. (1977), 172 Kont. 211, 563 P.2d 577. Since
proposed instruction no. 36 did not state the law applicable
to the facts of this case, it was an improper instruction. A
party cannot claim reversible error from the denial of an
improper instruction.
Additionally, Ken Anderson, a forensic scientist,
testified extensively on aI-coho1 impairment immediately
before the jury retired. The witness discl-osed that the test
results showed decedent Sanders' blood alcohol level to be
.22 percent. Counsel for the defense elicited testimony
concerning the impairment of vision and c~ordinationat this
level of intoxication.
We find the proposed instruction improper and fail to
discern any prejudicia.!. reliance on its offering and the
-jud.gelsaction. Accordingly, there is no error.
Finally, appellant requests this Court to reach the
issue of whether a survival action is a compulsory counter-
claim to a counterclaim alleging a survival action.
The record indicates the issue was never raised or
decided by the District Court. Issues not raised at trial
need not be considered by this Court. Huggans v. Weer (Mont.
1980), 615 P.2d 922, 37 St.Rep. 1512.
Affirmed.
d 2 ,g&,&&9
? AChief4 Justice
We concur:
Justices
Mr. Justice Frank B. Morrison, Jr. specially concurs as
follows:
I concur in the result but dissent from the majority's
treatment of the first issue.
The majority correctly notes that Montana has a liberal
rule permitting nearly every form of opinion testimony
offered by an investigating officer. In this case the
Highway Patrolman, pursuant to that rule, was permitted to
testify about whether a certain driver had lost control at
the time of the accident and was permitted to testify about
the cause of the accident. The Montana rule as applied makes
no sense.
Highway patrolmen and other persons with specialized
training in accident investigation, should be able to testify
about speed if they are in the possession of certain physical
evidence. A highway patrolman should also be permitted to
testify about point of impact if sufficient physical evidence
is available to provide a foundation for the giving of an
expert opinion. No investigating officer should be permitted
to draw conclusions about what caused an accident or whether
certain drivers were guilty of law violations. An anomaly
appears in the Montana law. We do not permit evidence that
the officer ticketed a party to the lawsuit. However, we do
permit the officer to give the same form of evidence by
stating what, in his opinion, caused the accident.
I would change the law prospectively becasue these
litigants and the trial judge relied upon our past decisions.
However, from this day forward I would hold that
investigating officers will not be permitted to testify about
the causes of an accident or give opinion testimony about ,-aw
violations on the part of a motor vehise operator.
I concur with Mr. Justice Morrison.