No. 85-51
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
KERRY ELDON WHITE,
Cross-Claimant and Appellant,
VIC PHILLIPS and FRANCIS PHILLIPS as
successors in interest to IKE V. PHILLIPS,
Cross-Defendants, Respondents and
Cross-Appellants.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Goetz, Madden & Dunn; William J. Madden, Jr. argued,
Bozeman, Montana
For Respondent:
Keefer, Roybal, Hanson, Stacey & Jarussi; Calvin J.
Stacey argued, Billings, M.ontana
Submitted: October 8, 1985
Decided: January 23, 1986
Filed:
ilAN 2 3 1986
Clerk
Mr. Justice Frank E. Morrison, Jr. delivered the Opinion of
the Court.
Kerry Eldon White was the driver of one of two cars
involved in a fatal accident on September 7, 1980. White was
sued by his passengers, Randy Simonson and Dave Rasmussen, as
was the driver of the other automobile, Ike V. Phillips.
White also filed a cross-claim against Phillips. The various
lawsuits were consolidated, but on plaintiff-passengers'
request, trial on the liability issues was bifurcated from
that on damages. Following trial by jury, White's negligence
was found to be the proximate cause of 40% of his passengers'
injuries. Phillips' negligence was responsible for the other
60%. The conduct of both White and Phillips was also found
to be willful or wanton. Pursuant to instructions given the
jury, White's cross-claim against Phillips was denied because
White was found to be guilty of willful or wanton conduct.
White appeals the judgment entered by the Eighteenth Judicial
District Court on his cross-claim against Phillips. We
vacate the judgment and remand for a new trial.
The accident occurred at approximately 2:30 a.m. on the
Canyon Ferry Road eight miles east of Hel-ena. Ike Phillips
was driving east to his family's home on Canyon Ferry Lake.
He had been drinking and was driving at a high rate of speed.
His vehicle failed to negotiate a curve, somersaulted and
landed upside-down in the borrow pit on the south side of the
road. The vehicle landed headed in a westwardly direction.
Very shortly thereafter the White vehicle, also
proceeding east on Canyon Ferry Road, came upon the scene.
As White topped the hill immediately prior to the curve, he
saw what appeared to be headlights in his driving lane.
White testified that to avoid a collision, he drove his car
into the ditch on the right (south) side of the road. On
entering the ditch, White saw Phillips' car and tried to
regain the road, but crashed into the Phillips' vehicle.
Phillips was killed. It is unknown which collision caused
his death. All occupants of the White vehicle suffered
injury.
In the pre-trial order, the passengers, Rasmussen and
Simonson, claimed that defendant Phillips' negligence was the
primary proximate cause of their injuries and that defendant
White was negligent, if at all, to a slight degree.
Cross-claimant White alleged that Phillips was "negligent
and/or negligent as a matter of law;" that as a result of
such negligence "a hazard or sudden emergency was created;"
that White "was not negligent in responding to the hazard or
sudden emergency;" and that if White were negligent in his
response, his negligence was less than the negligence of
Phillips which created the hazard or sudden emergency.
Further, White alleged that Phillips' conduct was willful or
wanton and that therefore, the doctrine of comparative
negligence should not be applied to reduce White's claim.
Rather than joining in the pre-trial order, Phillips
stated his contentions in a separate trial brief. However,
that brief was incorporated into the pre-trial order by the
following interlineation--"Phillips1 contentions: Please
refer to Phillips' trial brief." In his brief, Phillips
maintained that he was not negligent, and that if he had been
negligent, his negligence was not a proximate cause of the
claimants' injuries. Phillips further alleged that White was
negligent; that White's negligence was the sole proximate
cause of White's, Rasmussen's and Simonson's injuries; and
that White's negligence constituted a superseding and
intervening cause cutting off Phillips' liability, if any.
Finally, Phillips' brief listed two allegations in support of
his claim against White:
1. White's driving abilities (including hut not
limited to perception and reaction capabilities)
were substantially impaired by his use of alcohol
and drugs; and
2. White drove his vehicle in a reckless and
careless manner (speed) .
The case was tried before a jury. At the close of the
presentation of evidence, all parties submitted proposed
instructions. Over Phillips' objections, the court agreed to
give White's proposed comparative negligence instruction and
an instruction that the comparative negligence doctrine does
not apply if defendant's conduct is willful or wanton.
A special verdict form was prepared by White asking the
jury to determine whether the conduct of Phillips was willful
or wanton. Phillips again objected because it failed to ask
the jury to determine whether Kerry White also acted
willfully or wantonly. Phillips1 objection was overruled and
White's special verdict forms were adopted by the court.
After several hours of deliberation, the jury returned
with questions for the court, one of which was:
Cases A and B [the claims of Simonson and Rasmussen
against White and Phillips] Question 3 asks if Ike
Phillips was willful or wanton, why isn't the
question asked if Kerry White was willful or
wanton. He is also a d.efendant.
In response, the court amended the special verdict forms
to include a determination by the jury of whether White acted
willfully or wantonly. The instruction on when the
comparative negligence doctrine does not apply was unaltered.
At the request of Phillips and plaintiffs, the court amended
the pleadings and the pre-trial order to include a specific
willful or wa-nton conduct charge against White.
White objected to these changes on several grounds, the
most important being that the court lacks judicial power to
amend instructions and verdict forms after the case has been
tried, argued, submitted and deliberated upon if such
amendments substantially and materially change the theory of
the case. White also requested the court to give an
instruction on gross negligence and an instruction permitting
the comparison of willful or wanton conduct with like conduct
under the comparative negligence doctrine. Both requests
were denied.
Thereafter, the case was returned to the jury for
further deliberations. There were three specia.1 verdict
forms before the jury. Form A involved the claim of
passenger Simonson against White and the successors in
interest to Phillips. Form B was for passenger Rasmussen's
claim against the same individuals. Form C was for White's
claim against the successors in interest to Phillips.
The jury found both Simonson and Rasmussen to be
negligent, but held their negligence not to be a proximate
cause of their injuries; found White's and Phillips' conduct
to be negligent and willful or wanton; and divided the
responsibility for Rasmussen's and Simonson's injuries
between White and Phillips 40% and 60% respectively. Then,
on White's cross-claim against Phillips, the jury found both
individuals' conduct to be negligent and willful or wanton
and held both individuals' conduct to be a proximate cause of
White's injuries. However, pursuant to instructions on Form
C, since the jury found White's and/or Phillips' conduct to
be willful or wanton, the jury did not assign proportions of
negligence to either of them. Therefore, White's willful or
wanton conduct became an absolute defense to Phillips'
willful or wanton conduct, barring any finding of liability
on the part of Phillips for White's injuries.
Further facts will be developed as necessary for
resolution of this case.
White appeals, raising the following issues:
1. Whether the District Court erred in amending the
pleadings and special verdict forms to permit a finding of
wanton or willful conduct on the part of Kerry White?
2. Whether the District Court erred in refusing to
permit comparison of appellant's wanton and willful conduct
with like conduct on the part of Phillips?
3. Whether the District Court erred in requiring
appellant White to transcribe the entire trial court record,
when only that part from settlement of jury instructions
through taking of the verdict is necessary to determine the
issues raised by this appeal?
Phillips also submits several issues on cross-appeal for
this Court's consideration should. we remand for a new trial.
1. Did the District Court err in granting White's
motion in limine preventing Phillips from introducing any
testimony relating to White's use of drugs on the day of the
accident?
2. Did the District Court err in allowing Officer James
Curtin of the Montana Highway Patrol to testify as an expert
witness and express his opinion as to the estimated speeds of
the vehicles driven by White and Phillips at the time of the
accident?
3. Did the District Court err in allowing White to
introduce testimony and exhibits relating to an experiment
which he performed in an attempt to recreate the accident in
question in light of the fact certain dissimilarities existed
between the experiment and what actually occurred on the
night of the accident?
4. Did the District Court err in submitting a "sudden
emergency1' instruction to the jury at the request of White?
5. Did the District Court err when it dismissed
defendants "IKE V. PHILLIPS and the ESTATE OF IKE V.
PHILLIPS" from the lawsuit on the first day of trial and
substituted in their place as defendants "VIC PHILLIPS and
FRANCIS PHILLIPS AS SUCCESSORS IN INTEREST TO IKE V.
PHILLIPS?"
As the final issue raised by cross-appellant Phillips is
jurisdictional in nature, we will address it first. Phillips
contends the trial judge erred when, on the first day of
trial, he substituted "Vic Phillips and Francis Phillips as
successors in interest to Ike V. Phillips" for defendants
"Ike V. Phillips and the Estate of Ike V. Phillips."
We find no error in this substitution. Section
27-1-501, MCA, provides that a cause of action against a
deceased may be brought "in the name of his representatives
or successors in interest." See Muir v. Kessinger (D.C.
Mont. 1940), 35 F.Supp. 116, 117. Since Ike Phillips was
unmarried and childless at the tine of his death, his parents
are his successors in interest. Section 72-2-203(2), MCA.
This action was initially brought against Ike Phillips
and his estate. Section 72-3-104 (1), MCA, requires the
appointment of a personal representative prior to the
commencement of a claim against the estate of a deced.ent.
Since there was no estate, no personal representative was
appointed. Therefore, it became necessary to substitute the
real parties in interest, Phillips1 successors in interest,
for his estate. Such a substitution is permitted under Rule
17(a), M.R.Civ.P., without adversely affecting any applicable
statute of limitations.
Appellant's Issues
I.
Initially, White contends Phillips failed to allege
willful or wanton conduct on the part of White. Therefore,
the trial judge erred when he amended the pleadings and
special verdict forms to include such an allegation. We
agree the jury was improperly instructed, but for reasons
different than those offered by White.
Phillips alleged in his trial brief that White acted in
a reckless manner. Reckless conduct has been found
synonymous with willful or wanton conduct in numerous Montana
cases. See for example, Mallory v. Cloud (1975), 167 Mont.
115, 535 P.2d 1270. In fact, Webster's International
Dictionary defines "wanton" as "reckless, heedless or
malicious." Cashin v. Northern Pac. Ry. Co. (1934), 96 Mont.
92, 110, 28 P.2d 862, 869. See also, W. Prosser, - - -of
The Law
Torts 5 34 (4th ed. 1971). Thus, by alleging reckless
conduct, Phillips alleged that White's conduct was willful or
wanton. To hold otherwise would be contrary to Montana's
liberal pleadings law. Morse v. Espeland (Mont. 1985), 696
P.2d 428, 430, 42 St.Rep. 251, 252-253 and Rule 8, M.R.Civ.P.
Since Phillips' trial brief was incorporated by
reference into the pre-trial order, his brief, and his
allegation that White's conduct was reckless, became part of
the pleadings. Therefore, it was proper to instruct the jury
concerning Phillips' allegation that White's conduct was
willful or wanton. However, those instructions came too
late.
The original instructions did not include any reference
to Phillips' affirmative defense that White's conduct was
willful or wanton. Therefore, White was denied the
opportunity to argue against that defense prior to the case
going to the jury. The right to argue one's case as well as
to argue in response to defenses raised by the other parties
is essential to the litigant's right to have his case fairly
presented to the jury. It includes the opportunity "to argue
every material issue in a case upon which evidence has been
introduced .... " Ring v. Kaplan (Cal. 1949), 211 P.2d
578, 580.
It can hardly be questioned that closing argument
serves to sharpen and clarify the issues for
resolution by the trier of fact. ...For it is
only after all the evidence is in that counsel for
the parties are in a position to present their
respective versions of the case as a whole. Only
then can they argue the inferences to be drawn from
all the testimony, and point out the weaknesses of
their adversaries' positions.
In a ... trial, which is in the end basically a
fact-finding process, no aspect of such advocacy
could be more important than the opportunity
finally to marshal the evidence for each side
before submission of the case to judgment.
Herring v. New York (1975), 422 U.S. 853, 862, 95 s.Ct. 2550,
2555, 45 L.Ed.2d 593, 600. Therefore, since White was denied
the opportunity to argue that his conduct was not willful or
wanton, it was error for the trial judge to later amend the
pleadings and. special verdict forms to allow the jury to
consider that issue.
This error alone resulted in substantial injustice to
White. Therefore, the verdict should be set aside and a new
trial granted. Section 25-11-102 (7), MCA.
Appellant next objects to the trial judge's refusal to
permit apportionment of fault between White and Phillips if
the conduct of either or both is willful or wanton. The
trial judge's decision is premised on this Court's decision
in Derenberger v. Lutey (Mont. 1983), 674 P.2d 485, 40
St.Rep. 902. However, Derenberger holds only that willful or
wanton conduct may not be compared to negligent conduct under
Montana's comparative negligence statute, S 27-1-702, MCA.
The above statutory construction indicates to us
that mere negligence and willful and wanton
misconduct are different in kind, rather than
degree. Consequently, we find that the legislature
did not intend that they be compared under
Montana's comparative negligence statute.
Derenberger, 674 P.2d at 487-488, 40 St.Rep. at 906. No
decision was rendered in Derenberqer with respect to whether
willful or wanton conduct may be compared with like conduct.
Since we have held willful or wanton conduct to be
different in kind from negligent conduct, the comparative
negligence statute can not apply to wil-lful or wanton
conduct. However, the comparative negligence doctrine was
adopted to ameliorate the harshness of the "all or nothing"
result under the old contributory negligence approach. It
makes no sense to retain this harsh result where the conduct
being compared is other than negligent. Derenberger, supra.
The better rule is to allow comparison of the parties'
conduct so long as the conduct is of the same "kind".
Therefore, we hold that like conduct of parties, regardless
its label, may be compared for purposes of ascertaining
damages. However, consistent with the comparative negligence
statute, a person may recover damages for his injuries only
so long as his misconduct is not greater than the conduct of
the person against whom recovery is sought. Section
27-1-702, MCA.
Finally, S 27-1-701, MCA, states:
Liability for negligence as well as willful acts.
Everyone is responsible not only for the results of
his willful acts but also for any injury occasioned
to another by his want of ordinary care or skill in
the management of his property or person except so
far as the latter has willfully or by want of
ordinary care brought the injury upon himself.
Our holding today is not inconsistent with this statute as it
has been previously interpreted "to limit a comparison of
plaintiff's acts only when defendant has committed acts of a
similar kind." Derenberger, 674 P.2d at 487, 40 St.Rep. at
905.
We need not determine whether it was error for the trial
judge to require White to provide this Court with an entire
transcript of the proceedings below as White's appeal is
successful. The cost of preparing a transcript for appeal
purposes is one of the costs on appeal awarded to the
successful party under Rule 33 (c), M.R.App. Civ.P. and
S 25-10-104 (2) , MCA.
CROSS-APPELLANT' S ISSUES
Cross-appellant Phillips presents several issues for
this Court's consideration. Since we are remanding for a new
trial, we will address only the legal issues raised, not the
application of the facts to the law in the previous trial.
White admitted smoking mari jua.na, using cocaine and
ingesting 1 or 2 capsules of Ephredine Sulphate on the day of
the accident. Simonson, Rasmussen and White filed a joint
motion in limine requesting that all evidence regarding the
use of drugs prior to the accident be excluded from trial.
Following a hearing and filing of briefs in the matter, the
motion was granted and the evidence excluded unless a
foundation could be established showing:
a. At the time of the collision, the driver was
under the influence of drugs, and the passengers
knew or should have known that he was under the
influence ; and
b. The driver's negligence was the proximate or
controlling cause of the injuries to plaintiffs.
Order of the District Court, dated April 26, 1984.
Cross-appellant contends that the first part of the test
is nearly impossible to prove and that the second part is a
determination which should be left for the jury. We
disagree.
Evidence of the use of drugs is, by its very nature,
prejudicial. We previously approved a similar foundational
requirement as a condition to admission of prejudicial
evidence in Nelson v. Hartman (1982), 199 Mont. 295, 299, 648
P.2d 1176, 1178. There, the trial judge conditionally
excluded the evidence until a foundation linking the
defendant's driving record with his competency to drive at
the time of the accident was laid. Likewise, we approve this
trial judge's demand for a link between the prejudicial-
evidence and the accident. If White's negligence was not a
cause of the accident, it should not be a-dmitted. Again,
there is no error.
Even if the test is met, the trial court must still
weigh the probative value of the evidence against its
prejudicial effect. Rules 401 a.nd 403, M.R.Evid. With
respect to the probative value of the evidence,
cross-appellant's own expert witness, Dr. Kenneth Mueller,
testified that he could not state with a reasonable degree of
medical certainty that White's use of the drugs had any
adverse effect on his driving ability at the time of the
accident. Under Aasheim v. Humberger (Mont. 1985), 695 P.2d
824, 42 St.Rep. 235, the proper test to be used at the next
trial is whether White's drug useage "more likely than not"
affected his ability to drive. Aasheim, 695 P.2d at 827-828,
42 St.Rep. at 239, 2 4 0 . If this test cannot be met by
Phillips, there will be no abuse of discretion should the
trial judge hold that the probative value of the evidence is
not outweighed by its prejudicial effect.
The investigating highway patrol officer, James Curtin,
testified that in his opinion Phillips was traveling too fast
to safely negotiate the corner and White was traveling within
the speed limit immediately prior to the accident.
Cross-appellant objects, contending that Officer Curtin was
not qualified to offer such an opinion because he did not
conduct drag factor or coefficient of friction tests. The
trial judge is granted wide discretion in determining whether
to admit opinion testimony of investigating police officers
regarding the speeds of vehicles. Graham v. Rolandson
(1967), 150 Mont. 270, 285, 435 P.2d 263, 271. Given Officer
Curtin's qualifications and experience, as well as the
general nature of his testimony, we find no abuse of
discretion.
Next, cross-appellant objects to the admission into
evidence of pictures taken during a re-creation of the
accident. White assisted with the re-creation, then
explained to the jury the dissimilarities between the
re-creation and the actua.1 accident. If the conditions of
the re-creation are "substantially similar" to those at the
time of the accident and the re-creation has been properly
foundationed, there is no abuse of discretion by the trial
judge in admitting the evidence. Johnson v. Y.M.C.A. of
Great Falls (1982), 201 Mont. 36, 41-42, 651 P.2d 1245,
1248-1249; Barmeyer v. Montana Power Company (Mont. 1983),
IV.
Finally, cross-appellant objects to the use of a sudden
emergency instruction in this case. The instruction given is
that used repeatedly by courts in Montana:
You are instructed that when a person is faced with
a sudden emergency which is not created by his own
negligence, his conduct is to be tested by what an
ordinarily prudent person would have done under the
same circumstances and he is not chargeable with
negligence for failing to adopt the most judicious
course as disclosed by subsequent events.
Jury Instruction #16.
There is no rea-son for this instruction to ever be given
in an automobile accident case. It adds nothing to the
established law applicable in any negligence case, that due
care under the circumstances must be exercised. l1 The
circumstances" includes the pressure and split-second
decision-making which accompanies the crisis prior to some
automobile accidents. Further, a driver is never held
responsible for non-negligent actions which prove, with
hindsight, to have been incorrect. The instruction adds
nothing to the law of negligence and serves only to leave an
impression in the minds of the jurors that a driver is
somehow excused from the ordinary standard of care because an
emergency existed. This is not the law. See W. P. Keeton,
The Law of Torts 5 33 (5th ed. 1984).
In Knapp v. Stanford (Miss. 1981), 392 So.2d 196, the
Mississippi Supreme Court abolished prospectively the sudden
emergency instruction in all negligence cases, stating:
The hazard of relying on the doctrine of "sudden
emergency" is the tendency to elevate its
principles above what is required to be proven in a
negligence action. Even the wording of a
well-drawn instruction intimates that ordinary
rules of negligence do not apply to the
circumstances constituting the claimed "sudden
emergency." Also it tends to confuse the principle
of comparative negligence that is well ingrained in
the jurisprudence of this State.
Knapp, 392 So.2d at 198.
larly , the use of the sudden emergency instruction
Sj-mi
in automobile accident cases is hereafter banned.
The verdict is va.ca.tedand this cause is remanded for a
new trial, consistent with t
We concur: /