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.


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                                    11