Cline v. Durden

NO. 90-266

IN THE SUPREME COURT 0
1990

LEON CLINE,
Plaintiff-Counterclaim Defendant and Appellant,
-vs-
LEO DURDEN,
Defendant-Counterclaimant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial ~istrict,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Joseph R. Marra, Marra, Wenz, Johnson & Hopkins,
Great Falls, Montana
Daniel A. Boucher, Altman & Boucher, Havre, Montana
For Respondent:
Curtis G. Thompson, Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana

Submitted: October 19, 1 9 9 0
Decided: December 27, 1990
Filed:
 I

Justice John C. Sheehy delivered the Opinion of the Court.

Leon Cline appeals from a judgment entered in the District

Court, Eighth Judicial District, Cascade County, awarding Leo (Tom)
Durden $737,223. We affirm the District Court.
The issues raised by Cline are:
1. Whether the District Court erred in allowing Deputy Smrdel

to give opinion testimony as to the cause of the accident.
2. Whether the ~istrictCourt erred in allowing testimony and
exhibits of Forest Service employees MacKay and Armstrong.
3. Whether the District Court erred in regard to introduction
of Durdenls military medical records and disability benefit
application.
4. Whether the introduction of previously excluded medical
conclusions constituted reversible error.
5. Whether the court erred in refusing several of Cline's
instructions and special verdict form.
6. Whether the court erred in failing to rule on Cline's
motion for a new trial.
Cline and Durden were involved in a head-on snowmobile
collision on December 14, 1986. Cline and Durden were traveling
in opposite directions on what is known as the Divide Road, near
the summit of King's Hill Pass in the Little Belt Mountains. The
trail at the area of the collision was wide enough to accommodate
four snowmobiles. The orientation of the vehicles on impact and
direction of travel by both parties was the central dispute at
trial. Cline contended that Durden was cutting across the trail
from his left to right when the impact occurred. Durden claimed
it was Cline who angled from his right to the left, encroaching
upon Durdenls right-of-way. Durden, Cline and his companion, Ron

Harmon, who was traveling a short distance behind Cline when the
accident occurred, were the only witnesses to the accident.
However, Durden has no memory of what occurred due to head trauma
he suffered.
Both parties were injured in the impact. Cline was taken by
ambulance to the hospital; Durden was airlifted by helicopter due
to his critical condition. The accident scene was thereafter
cleared of debris by onlookers to minimize hazards to other
snowmobilers. Due to the failing light, investigation of the
accident scene by the Cascade County Sheriff's Department and U.S.
Forest Service was not conducted until the next morning. Sheriff's
Deputy Dan Smrdel prepared his report with the aid of a quick
response unit representative, Dick Mosher, who had witnessed the
accident scene shortly after the accident the previous evening, and
Forest Service employees Armstrong and MacKay. From the remaining
physical evidence, such as gasoline spill and small debris, and
from Mosherls observations, the evening before, Smrdel prepared his
report, which included diagrams, measurements and written
explanation.
Cline commenced this action on December 9, 1988, claiming

negligence on the part of Durden. On February 2, 1989, Durden

answered and counterclaimed. Trial commenced on November 27, 1989
and was concluded on December 6, 1989. The jury returned a special
verdict, concluding Cline to be solely negligent and awarded Durden
$737,223 in damages. This appeal resulted.
Cline asserts the lower court erred in allowing Deputy Sheriff
Dan Smrdel to testify as to the cause of the accident. Prior to
trial, cline made a motion in limine to exclude any testimony from
Smrdel as to the cause of the collision, as well as an accident
report and diagram of the scene prepared by Smrdel the morning
after the accident. Cline stated that Smrdel lacked the adequate
training in accident reconstruction and did not conduct a thorough
enough investigation to render an opinion as to cause.
At the pretrial conference, the court stated it was inclined
to grant Cline's motion in limine to exclude Deputy Smrdells
testimony, based upon opposing counsel's failure to file a reply
brief as required under Uniform District Court Rule No. 2.

Thereafter, Durden filed a motion to reconsider on the grounds that
the failure to file a reply brief had simply been an oversight.
Just prior to opening statements, the court, in camera, stated
it would reserve a ruling on the admissability of opinion testimony
by Deputy Smrdel. Over the objections of counsel for Cline, the
court thereafter allowed Smrdel to render an opinion as to the
cause of the accident, stating that:
. . . [H]els laid foundation for his qualifications. He
went to basic training school at the Montana Law Academy
and went back there for a two-week course put on by the
Northwest Traffic Institute, and then went back on other
occasions.
 I

Neither Cline's claim of surprise nor insufficient foundation
has merit. Being trained in accident reconstruction, Deputy Smrdel
was qualified to give his opinion of the accident's cause. Under
the Montana Rules of Evidence, the trial court is given wide
latitude in determining whether to admit opinion testimony of
investigative officers. Simonson v. White (1986), 220 Mont. 14,
713 P.2d 983. Leeway is allowed in such instances, and provided
that the cross-examiner is given adequate opportunity to elicit any
assumptions or facts underlying the expert's opinion, the weight
to be given the testimony is for the trier of fact to determine.
Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364. Given the
foundation cited by the court, the early inclusion of Deputy Smrdel
as an expert witness, and the availability to Cline of all reports
and diagrams prepared by Smrdel, we find no error in allowing his
opinion testimony.
Error is also asserted as to the testimony of Douglas MacKay
and James Armstrong. Rangers MacKay and Armstrong were stationed
nearby at the King's Hill Ranger District Station, and accompanied
Deputy Smrdel and ski patrolman Dick Mosher to the accident scene
the next morning. With the aid of Mosher, who had responded to the

accident the previous evening, the parties determined the point of
impact and the final resting spots of Cline and Durden. Relying
upon Mosher's observations and evidence such as snowmobile debris
and blood, Armstrong took photographs depicting the impact area and
the resting positions of Cline and Durden. In addition, MacKay
prepared a diagram based on observations and measurements.
 Cline contends the court erred in allowing the testimony and
exhibits of Armstrong and MacKay. However, counsel for Cline did
not object to either the photographs or the diagram when offered
into evidence. Investigative reports prepared by Armstrong and
MacKay were never offered nor admitted into evidence. MacKay was
asked to refer to his report, first on cross-examination by Cline's
counsel, and then on redirect by Durdenls counsel. On redirect,
the following dialogue occurred:
Q: And, then, sir, directing your attention to paragraph
five of your report, would you please tell this jury what
you thought, or felt to be the cause of this accident?
A. Once again, this is inconclusive and speculative, but
it would appear Mr. Cline's machine and Mr. Cline failed
to yield the right-of-way to Mr. Durden.
Q: And upon what do you base that? A. The location of
the impact, as you can tell from the northern edge of the
road there is only four to five feet from the center mass
of the impact to the edge of the road, and, indeed Mr.
Durden was going in [a westerly] direction, that should
have been his lane of traffic. And Mr. Cline should have
been on the opposite side of the road going east, or the
southern part of the road.
After the jury had been impanelled, counsel had met in chambers to
discuss proposed amendments to the pretrial order. Counsel for
Durden wished to present the photographs, diagrams and reports of
MacKay and Armstrong, all recently discovered. Counsel for Cline
objected on the basis of timeliness and inadmissable opinion
testimony. After discussion, Cline's counsel agreed to stipulate
to the photographs, but renewed objections to the written reports,
due to the unsubstantiated opinions within. The court reserved any
ruling upon the reports.
 Clearly, an opinion as to the cause of the accident was
elicited of and rendered by Durdenls own witness. No ruling was
made by the court, nor was any objection renewed. We find that
Cline's objection in chambers was sufficient to preserve it for
purpose of review on appeal. However, we find no error in the
testimony, as counsel for Cline was first to delve into the subject
matter of the report on cross-examination:
Q: Mr. MacKay, you have got your case report in front
of you? A: Yes, I do.

Q: Okay. And I believe that report states, does it not,
when the investigation was initiated the morning
following the accident, both snowmobiles had been removed
from the scene; is that correct? A: That's correct.
Q: And due to this removal investigate results are
inconclusive and speculative; is that correct? A: That
is also correct.
Q: And you go on and say, however, assumptions can be
drawn from debris remaining and statements offered at the
site by Richard Mosher, a National Ski Patrol member who
administered first aid shortly after the accident? A:
Yes.

Q: And would it be a fair statement to say that your
report is based purely on what you saw at the scene the
day after, and what Mosher told you? A: That would be
correct.
Q: And you don't profess to contend that this is
accurate insofar as what happened at the accident. You
are not an accident reconstruction person? A: No, not
per se.
Rule 106, Montana Rules of ~vidence,states in part:
(a) When part of an act, declaration, conversation,
writing or recorded statement or series thereof is
introduced by a party:
 (2) an adverse party may inquire into or introduce any
other part of such item of evidence or series thereof.
By inquiring into MacKayls report for the first time on cross-
examination, counsel for Cline effectively overcame his own
objection to matters contained therein and opened the door for
further inquiry on redirect. The court has wide discretion in
determining the scope and extent of re-examination as to the new
matters brought out on cross-examination. State v. Heaston (1939),
109 Mont. 303, 316, 97 P.2d 330. "You may not parry with sharpened
blade in cross and expect only a sheathed blade in return." State
v. Board (1959), 135 Mont. 139, 145, 337 P.2d 924.
Cline next contends the court erred in several aspects
regarding the admission of Durdenls military disability benefits
application and supporting military medical records. Cline sought
the introduction of the disability benefit application and medical
records, presumably to contend that some of Durdenls maladies
predated the snowmobiling accident. Durden filed a motion in
limine to preclude any presentation of evidence of the application
for disability benefits, which was granted by the court. However,
the application was later admitted by Durden during his case in
chief.
Cline contends error in the initial exclusion, and the later
admittance of the application without the supporting medical
records during Durdenls case in chief. Cline contends the late
admittance of the application precluded Cline from addressing it
during opening statement. If any error existed from the early
exclusion of the application, its effect was negligible, as Cline
8
 e

was allowed full opportunity to cross-examine Durden regarding the
application. Cline recalled his economic expert and elicited
opinions from him based on the application. That no further
mention was made of the application, including closing argument,
would suggest that it was not considered of crucial import to
Cline's case.
Cline contends it was error to exclude Durdenls military
medical records, which were referred to in the disability benefits
application. Cline cites Rule 106, M.R.Evid., the llcompleteness
ruler1' the grounds requiring their inclusion. We disagree with
as
Cline's contention. Rule 106 does not mandate the inclusion of
related evidence. The rationale behind the inclusion of
supplementary evidence is that it is allowed if it is needed to
make the primary evidence understandable. State v. Sheriff (1980),
190 Mont. 131, 619 P.2d 181. The application was clear on its face
in this instance, particularly after witnesses for Durden explained
its purpose, and Cline was afforded the chance to cross examine.
Further, the rule states that the "adverse party may inquire into
or introducel1 any other part of the writing. Its inclusion is not
mandatory, but is an option granted the adverse party. Cline made
no attempt to introduce the military records after the application
was introduced. He cannot now predicate error on his own failure.
Cline next contends the court erroneously allowed hearsay
testimony by Durdenls expert witness, psychologist Edward Shubat.
Cline states that Shubat was I1primedl1by Durden to circumvent an
earlier order disallowing the medical conclusions of a number of
medical specialists by testifying as to their conclusions. This
contention lacks merit, as it was Cline who elicited the limited
testimony that point during cross examination of Shubat . Cline
cannot create error for his own benefit on appeal.
Cline contends the court erred in refusing plaintiff's
instruction no. 3, which stated:
Evidence of any oral admissions, claimed to have been
made outside of court by any party to this case, ought
to be viewed with caution.
This instruction comes from the old Montana Jury Instruction
Guide, which has been superseded by the Montana Pattern
Instructions. Cline sought the instruction in light of a statement
used to impeach Cline's trial contention as to positions of the
snowmobiles just prior to the accident. Cline had given the
statement by telephone to an insurance adjuster while still
hospitalized. Cline did not deny the statement, but claimed no
memory of it due to heavy sedation. Cline contends that in such
a condition, he was susceptible to suggestion and that the jury
should have been informed by instruction to the unreliability of
the statement.
We cannot agree with Cline's contention. No evidence was
offered to show he was sedated when the statement was made. The
jury was properly instructed that it, as the trier of fact, had the
responsibility of weighing all evidence. This was sufficient where
there was a prior inconsistent statement which Cline was afforded
the opportunity to deny or explain. Rule 613(b), M.R.Evid.
 Cline next contends error in the denial of his instructions
nos. 17, 25 and 60, all detailing applicable standards of care.
Nos. 17 and 60 both referred to standard of care in operation of
vehicles in light of surrounding circumstances, including
situations of I1emergency calling for quick action. It The court
declined the instruction, stating:
So when the Court starts calling [the position of the
vehicles prior to the accident] an emergency [situation],
then it's drawing conclusions of fact, and I think that Is
for the jury to decide, whether or not there was an
emergency situation here. For me to call it an emergency
seems to be commenting on the evidence.
We hold the court properly excluded the instruction no. 17 and
no. 60, as they made reference to an "emergency situation," and
which was not conclusively proven to exist, but was a question of
fact to determined solely by the jury. Section 26-1-202, MCA.
"Sudden emergencyt1instructions are looked upon with disfavor in
Montana. Simonson v. White (1986), 220 Mont. 14, 713 P.2d 983;
Ewing v. Esterholt (1984), 210 Mont. 367, 684 P.2d 1053.
plaintiff's proposed instruction no. 25 stated:
ordinary care is not an absolute term, but a relative
one. That is to say, in deciding whether ordinary care
was exercised in a given case, the conduct in question
must be considered in the light of all the surrounding
circumstances, as shown by the evidence.
Cline contends error in the refusal of that instruction,
particularly in light of the court's refusal to give proposed
instruction no. 17 and Cline's theory of the case--that he met
Durden on the wrong side of the trail and was forced to take
evasive action.
 We hold that court's instructions nos. 10 and 11 adequately
addressed the notions of ordinary and reasonable care commensurate
with the circumstances. Cline can show no prejudice in the court's
refusal of his proposed instruction no. 25, as other instructions
adequately covered the point. Funk v. Robbin (1984), 212 Mont.
437, 689 P.2d 1215.

Cline next contends error in the refusal of his proposed
instruction no. 19, which gave a mathematical formula by which a
vehicle's speed may determine its distance traveled over time.
Cline claims it was error to refuse the instruction, as it would
have helped resolve conflicts in the testimony of the opposing
accident reconstruction experts.
We find no error in the court's refusal of the instruction,
as it would merely have added another factor to consider, and one
not particularly helpful to the layman in determining standards for
perception/reaction time to which the experts testified. It is
within the district court's discretion to decide how to instruct
the jury, taking into account the theories of the contending
parties, and we will not overturn except for abuse of that
discretion. State v. Barnes (1988), 232 Mont. 405, 758 P.2d 264.
Cline next contends the court erred in refusing his
instruction as to fixing damages for loss of future earnings.
gain, we find no error, as the court Is instruction no. 20 more
than adequately addressed the subject.
Cline next contends it was error for the court to give
Durdenls form of special verdict in lieu of Cline's. Cline states
 -

the jury became confused, as shown by the question put to the court
during deliberation whether negligence must total 100 percent. A
review of both special verdict versions shows they are strikingly
similar, both requesting a determination of apportionable
negligence. Cline cannot show that the offered version was in any
way inadequate, or that the jury's final determination was in any
way subject to confusion. We find no error in the given special
verdict form.
Cline's final contention of error is predicated on the court Is
failure or refusal to rule on his motion for new trial. However,
it is not uncommon practice for the district court to deny such a
motion by failing to rule within the 45-day limit set out in Rule
59 (d), M.R. Civ.P. Such was the case here, and no error may be
assigned to the court's denial.
\
Affirmed. I
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Justice
We Concur: R .\ - /

Justices
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