No. 89-115
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
LINDA M. HART-ANDERSON,
Plaintiff and Respondent,
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GERALDINE C. HAUCK and STATE FARM --- -1
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INSURANCE COMPANY, l7
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Defendants and Appellant. - 3
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APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. D. Peterson; Peterson, Schofield & Leckie, ~illings,
Montana (Hauck)
For Respondent:
Ronald R. Lodders; Crowley, Haughey, Hanson, Toole &
Dietrich, Billings, Montana
L. B. Cozzens, Billings, Montana
Submitted on Briefs: July 13, 1989
Decided: October 2 3 , 1989
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from an order by the Thirteenth Judi-
cial District, Yellowstone County, granting a directed ver-
dict in favor of plaintiff. Defendant appeals. We reverse.
The issues presented for our review are:
1. Did the District Court err in granting a directed
verdict?
2. Did the District Court err in excluding certain
hearsay evidence?
3. Did the District Court err in allowing a police
officer to testify as to the cause of the accident?
4. Did the District Court err in excluding testimony
regarding a traffic citation?
The present case involves a traffic accident and issues
of negligence. The case was originally tried by jury in May
of 1985. It was subsequently appealed to this Court. In
Hart-Anderson v. Hauck (1988), 748 P.2d 937, 45 St.Rep. 18,
we remanded the case for a new trial.
A second jury trial was held on December 10, 1988, and
at the conclusion of the evidence the court granted plain-
tiff's motion for a directed verdict, concluding that as a
matter of law defendant was negligent and plaintiff was not
contributorily negligent. Defendant contends that a directed
verdict was not appropriate in that the testimony at trial
raised issues of fact as to whether plaintiff was
contributorily negligent. Defendant contends that this
evidence should have been submitted to a jury.
Regarding a directed verdict, this Court has previously
stated that, "No case should be withdrawn from the jury if
reasonable men may differ as to the conclusions drawn from
the evidence.I' Mydlarz v. Palmer/Duncan Const. Co. (1984),
209 Mont. 325, 682 P.2d 695. Our review of the record
reveals issues of fact upon which reasonable men could differ
and we conclude that a directed verdict was not appropriate
in this case.
This automobile accident occurred in Billings, Montana
on December 6, 1982. The streets that day were very icy.
Plaintiff and defendant were both in vehicles traveling east
on Broadway, approaching the intersection to Tenth Avenue,
with plaintiff ahead of defendant. Broadway approaches Tenth
Avenue with a downhill incline. As plaintiff approached
Tenth Avenue, she noticed a large delivery truck crossing the
intersection in front of her. She also noticed a small
Volkswagen on Tenth Avenue behind the truck. As plaintiff
approached the intersection she also noticed defendant ap-
proaching from her rear. Ultimately defendant's vehicle hit
the rear end of plaintiff's vehicle, knocking plaintiff's
vehicle across Tenth Avenue, where it collided with the
Volkswagen. It came to rest alongside the Volkswagen, facing
south. The damage to plaintiff's car was estimated at $685.
There was testimony presented at trial from five eyewit-
nesses to the accident. In addition to the testimony of both
plaintiff and defendant, there was testimony submitted by
deposition from Ms. Heald, the driver of the Volkswagen. The
jury also heard testimony from Mr. Poindexter and Mr.
Merriweather, both eyewitnesses to the accident. Mr.
Merriweather witnessed the accident as he was sitting inside
a business establishment at the corner of Broadway and Tenth
Avenue. Mr. Poindexter also witnessed the accident from the
second floor window of a nearby office building. Some of the
testimony from these witnesses differs markedly as to how and
where the accident occurred.
Plaintiff testified that as she traveled down Broadway
her rear tire bumped the curb approximately 50 feet prior to
reaching the intersection. She testified that she
straightened her vehicle and was beginning her turn when the
impact occurred. The testimony of Mr. Poindexter, Mr.
Merriweather and Ms. Heald was substantially in accord with
this account. These witnesses testified that the impact
occurred on Broadway as plaintiff began to turn onto Tenth
Avenue. Mr. Poindexter also testified that he saw plain-
tiff's rear tire bump the curb approximately 40 to 50 feet
from the corner.
Defendant however, testified that plaintiff's tire
bumped the curb as plaintiff was making her right turn onto
Tenth. In substance, defendant stated that she noticed
plaintiff having difficulty ahead of her but that she was
required to turn right because of the delivery truck on Tenth
Avenue. Defendant testified that plaintiff's vehicle was
stopped in front of her as she turned the corner, and that
the impact occurred on Tenth Avenue. She alleges that she
would have made the right turn without problem had plaintiff
not had difficulty negotiating her turn and if plaintiff had
not stopped in front of her.
Defendant relies on this Court's holding in Reed v.
Little (1984), 209 Mont. 199, 680 P.2d 937, for the proposi-
tion that the defense of contributory negligence is available
to her, and should properly have been submitted to the jury.
We conclude that Reed is controlling in the present case. In
Reed, we discussed negligence per se and its interaction with
Montana's newly enacted statute on contributory negligence,
B 27-1-702, MCA. In Reed, we stated:
We hold that the defense of contributory negligence
on plaintiff's part is available to a defendant who
has violated a traffic statute. It is for the fact
finder to determine the comparative degree of
negligence on the part of plaintiff and defendant.
Reed, 6 8 0 P.2d a t 9 4 0 .
I n Reed, d e f e n d a n t rear-ended t h e v e h i c l e ahead o f him.
Although t h e e v i d e n c e i n Reed on b e h a l f o f d e f e n d a n t e s t a b -
l i s h e d t h a t p l a i n t i f f made a n a b r u p t s t o p i n f r o n t of d e f e n -
dant, p l a i n t i f f denied t h e stop. This c o n f l i c t i n g testimony
was p r o p e r l y s u b m i t t e d t o t h e j u r y . I n Reed, t h e j u r y found
t h e l e a d d r i v e r was c o n t r i b u t o r i l y n e g l i g e n t even though
d e f e n d a n t h i t h e r from b e h i n d . I n t h e p r e s e n t c a s e , defen-
d a n t t e s t i f i e d t h a t p l a i n t i f f was having d i f f i c u l t y c o n t r o l -
l i n g h e r c a r and making t h e r i g h t t u r n . She t e s t i f i e d t h a t
plaintiff came t o a s t o p i n f r o n t o f h e r . Although t h r e e
witnesses corroborated plaintiff's version, nonetheless,
d e f e n d a n t t e s t i f i e d i n a c o n t r a r y manner. I t i s n o t appro-
p r i a t e f o r t h e c o u r t t o weigh c o n f l i c t i n g e v i d e n c e ; r a t h e r ,
t h a t i s t h e function of t h e t r i e r of f a c t , i n t h i s case, t h e
jury. A s i n Reed, i t was p o s s i b l e f o r t h e j u r o r s t o f i n d
t h a t p l a i n t i f f came t o an a b r u p t s t o p i n f r o n t o f d e f e n d a n t
and was c o n t r i b u t o r i l y n e g l i g e n t . W conclude t h a t reason-
e
a b l e men might d i f f e r i n drawing c o n c l u s i o n s from t h e e v i -
dence. Thus a d i r e c t e d v e r d i c t i n f a v o r o f p l a i n t i f f was n o t
appropriate. We remand this c a s e t o t h e ~ i s t r i c tC o u r t .
A d d i t i o n a l l y , we a d d r e s s t h e f o l l o w i n g e v i d e n t i a r y i s s u e s f o r
guidance a t a subsequent t r i a l .
I1
Did t h e D i s t r i c t C o u r t e r r i n e x c l u d i n g c e r t a i n h e a r s a y
evidence?
A t trial, c o u n s e l f o r d e f e n d a n t made an o f f e r o f proof
regarding the admissibility of certain testimony by Mr.
Poindexter. The o f f e r o f p r o o f was d e n i e d . I n t h e o f f e r of
proof, defendant asserted that if allowed, Poindexter
Mr.
would t e s t i f y t h a t s h o r t l y a f t e r t h e a c c i d e n t , h e p l a c e d a
phone c a l l t o t h e a t t e n d a n t a t a nearby s e r v i c e s t a t i o n ,
s t a t i n g t h a t he had w i t n e s s e d t h e a c c i d e n t , and t h a t it was
the sole fault of the truck pulling out. Defendant contends
that although this testimony is hearsay, it is admissible
pursuant to either Rule 803(1) or 803(2), M.R.Evid., as
either a present sense impression or an excited utterance.
The statement at issue was clearly hearsay. Defendant
presented no facts in the offer of proof which would place
this statement within either the present sense impression or
excited utterance exception to the hearsay rule. We conclude
that this offer of proof was properly denied. We affirm the
District Court on this ruling.
I11
Did the District Court err in allowing a police officer
to testify as to the cause of the accident?
Officer Oberg, a Billings city police officer, investi-
gated the accident shortly after it occurred. He was not an
eyewitness to the accident. At trial he testified that he
had investigated several hundred automobile accidents in his
14 years as a police officer. He testified that his investi-
gation of this accident included interviews with the parties
involved, and observations of the scene of the accident, the
vehicles, and the road conditions. Officer Oberg was then
asked to state his opinion as to the cause of the accident.
He stated that in his opinion defendant was driving too fast
for the road conditions. Defendant objected to this testimo-
ny at trial, urging lack of foundation. Defendant also
contends the accident was not sufficiently complex to neces-
sitate expert opinion regarding causation.
We do not agree that an officer with years of experience
in investigating accidents cannot assist the jury in its
determinations. In Foreman v. Minnie (1984), 211 Mont. 441,
689 P.2d 1210, this Court allowed a deputy sheriff to testify
as to the cause of an automobile accident. In Foreman we
also noted that there was adequate opportunity to
cross-examine the officer regarding any facts underlying the
expert opinion. For other cases allowing an investigating
officer to testify regarding the cause of an automobile
accident or vehicular speed, see Goodnough v. State (1982),
199 Mont. 9, 647 P.2d 364; Rude v. Neal (1974), 165 Mont.
520, 530 P.2d 428.
We conclude that Officer Oberg's testimony could assist
the trier of fact on the issue of causation. He had exten-
sive experience in these types of investigations and an
adequate foundation was presented for his testimony. Defense
counsel cross-examined the officer as to the basis of his
opinion. The jury is free to decide the weight to be given
this testimony. Goodnough, 647 P.2d at 369.
We affirm the District Court's ruling on this issue.
IV
Did the District Court err in excluding testimony re-
garding a traffic citation?
Defendant made an offer of proof during trial, request-
ing that she be allowed to testify to an alleged statement
made to her by Officer Oberg. The offer of proof stated that
if allowed defendant would testify that while issuing her a
traffic citation, Officer Oberg told her, "I'm going to issue
this to you, but you don't deserve it, but I have to do it
because of my superiors. If I don't do it, they will make me
go out and issue it, and then just cause some additional
problems." Her offer of proof further stated that Officer
Oberg told her if she would plead not guilty, he would re-
quest that the ticket be dismissed. Defendant contended that
although this alleged statement was hearsay, it was admissi-
ble to impeach Officer Oberg's testimony regarding the cause
of the accident. The trial court denied this offer of proof.
The offered testimony refers to the issuance of a crimi-
nal citation and is inadmissible because it is irrelevant and
prejudicial. Further, such testimony has no bearing on the
cause of the accident. Smith v. Rorvik (Mont. 1988), 751
P.2d 1053, 1056, 45 St.Rep. 451, 455. Additionally, the
testimony was hearsay and did not directly impeach Officer
Oberg's former testimony. We conclude that the District
Court did not err in denying this offer of proof. We affirm
the District Court's ruling on this issue.
L
We Concur:
Justices
Justice R. C. McDonough dissenting:
I would affirm the directed verdict in favor of the
plaintiff. The defendant was clearly negligent as a matter
of law. The defendant failed to slow and control her vehicle
when difficulties of traffic on the highway were foreseeable
to her and was the sole proximate cause of the accident.
On this record for a fact finder to find that
plaintiff's action in ultimately controlling her car was
contributory negligence and a proximate cause of the accident
is imaginative. There isn't any substantial evidence
favorable to the defendant which would permit such a finding.
There is not present here, nor under the icy conditions
could there have been, a sudden stop or any action by
plaintiff which would rise to the point of creating an
unforeseeable emergency situation under these circumstances.
Justice John C. Sheehy, dissenting:
When this case was before us previously, it was a
entitled Linda M. Hart-Anderson, plaintiff, v. Geraldine C.
Hauck and State Farm Insurance Company, defendants (1988),
748 P.2d 937. Hart-Anderson had sued Hauck and her insurer,
State Farm Insurance Company, because of the collision which
occurred in Billings, Montana, December 6, 1982. It was the
position of Hart-Anderson that Hauck was solely responsible
for the collision, that Hauck's insurer should have
recognized her sole responsibility and paid the damages
sustained by Hart-Anderson's automobile, and that the failure
of the insurer to quickly pay such claim was evidence of its
bad faith in the handling of insurance claims.
On the first trial, the jury determined that Mrs. Hauck
was negligent and her negligence was the proximate cause of
the property damages suffered by Hart-Anderson; that
Hart-Anderson was not negligent, and that as to comparative
negligence Mrs. Hauck was 100 percent responsible and Linda
Hart-Anderson was zero percent responsible. It found damages
to Hart-Anderson's car in the sum of $687.00; it found that
Hart-Anderson had suffered emotional distress for which she
was entitled to $25,000.00; and it found the insurer guilty
of a breach of the unfair Claims Settlement Act of Montana
and levied exemplary damages against the insurer in the sum
of $687,000.00.
On the first appeal to this Court, no issue was made by
defendant Hauck or her insurer as to findings of the jury
that Hauck was 100 percent responsible for the collision.
The judgment in the first case was reversed on appeal on
issues relating to the claim against the insurer and no issue
was decided on appeal which would dispute the finding of 100
percent negligence on the part of Mrs. Hauck. Nonetheless
the majority of this Court, in an opinion ill-considered as
we pointed out in dissent, reversed the cause for a retrial
of all issues, and directed that the cause be bifurcated as
to any liability of the insurer.
From the record of this case then, we have the finding
of the first jury that Mrs. Hauck was 100 percent negligent
because of the collision; we have the testimony of a
respected retired claims adjuster that Hauck was 100 percent
in fault in the accident and that the plaintiff was not
negligent at all; we have the testimony of Earl Hanson, an
attorney practicing law in ~illings,that under the facts of
this case Hauck was 100 percent negligent; and now, as to the
retrial, which is now on appeal, the opinion of the ~istrict
Court that the case should not go to the jury because the
negligence of Hauck was so clearly established.
None of these circumstances deter the majority from
ordering a new trial - - issue - negligence!
on the of
The District Court in this case granted the motion for
directed verdict as to Hauck's negligence because whether one
accepted her version of the incident or that of the other
witnesses, she was nonetheless solely responsible for the
accident. The majority here has manufactured an issue of
fact in stating "Defendant testified that plaintiff's vehicle
was stopped in front of her as she turned the corner, and
that the impact occurred on Tenth Avenue." That statement
ignores that this case does not concern a sudden stop nor
even a following-too-closely situation. Here the defendant
Hauck had one-half to one-quarter of a block to see the
danger and avoid the collision. Hauck had the primary
responsibility to avoid the collision in that situation.
In Grabs v. iss sou la Cartage Company, Inc. (19761, 169
Mont. 216, 219, 221, 545 P.2d 1079, 1081, 1082, this Court
stated:
The classic test employed to determine whether a
question is one of fact or law, involves the
application of a rule of reason. Where reasonable
men could draw different conclusions from the
presented evidence, the question is one of fact.
But if only one conclusion could reasonably be
drawn, the question is one of law, properly
resolvable through the procedural device of
directed verdict.
But the primary responsibility must be on those
drivers who have the opportunity to detect the
potentially hazardous situation ahead. (Citing
authority.)
In Custer roadc casting Corp. v. Brewer (1974), 163 Mont.
519, 521-522, 518 P.2d 257, 259, the Court said:
However, in cases where a driver of a vehicle is
following another vehicle too closely, we follow
the doctrine that the primary duty of avoiding a
collision rests upon the following driver.
This case is controlled by the provisions of § 61-8-329,
MCA, which provides:
Followinq too closely. (1) The driver of a motor
vehicle shall not follow another vehicle more
closely than is reasonable and prudent, having due
regard for the speed of such vehicles and the
traffic upon and the condition of the highway.
In this case, Geraldine Hauck, following on an icy
street, as the testimony shows, almost three-quarters of a
block behind the Hart-Anderson vehicle, failed to keep her
vehicle under control so as to avoid colliding with the
Hart-Anderson vehicle. There can be no other conclusion but
that she is 100 percent responsible.
District judges of this state are in an intolerable
position because of the continuing pattern of this Court to
set its face against all recoveries by plaintiffs whether by
judge or by jury. Here, under the cases cited above in this
dissent, the District Court would have been subject to
reversal if it had not qranted a directed verdict. Yet here
the District Court has been reversed for following the law
and grantinq a directed verdict. In this state we don't need
tort reform; what is wanting is court reform.
I would affirm. Two trials are enough already.
I concur in the foregoing dissent of Justice John C. Sheehy.
Justice