No. 83-390
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
CHARLES E. LINDBERG, et al.,
Plaintiffs and Appellants,
LEATHAb1 BROTHERS, INC. , a
Utah Corporation and THE
STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Whalen & Whalen; Timothy J. Whalen argued, Billings,
Montana
For Respondents:
McNamer, Thompson & Cashmore; William 8 . PlcNamer argued,
Billings, Montana
Allen B. Chronister, Asst. Attorney General argued,
Belena, Montana
Submitted: October 31, 1984
Decided : January 4, 1985
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is a wrongful death and survivorship case brought
by plaintiffs against the above-named defendants in the
District Court, Thirteenth Judicial District, Yellowstone
C~unty. A jury returned a verdict for the defendants and
judgment was entered thereon; plajntiffs appeal and we
affirm.
This action arises from a car-truck accident on June 30,
1980, at approximately 10:50 p.m., in which a head-on
collision occurred between the car driven by Patricia A.
Lindherg and a trailer truck driven by David Toland of
Leatham Brothers, Inc. (Leatham) . The Lindberg vehicle was
traveling north on U.S. Highway 87 and the Leatham truck was
traveling south at the time the vehicles met on the Pass
Creek Bridge south of Wyola, Montana. Mrs. Lindberg was
killed in the collision.
The existing roal! conditions were described by Janet
Elwell who was driving behind the Lindberg vehicle prior to
the collision. Rain had diminished to a light sprinkle. The
road was shiny and reflective, reducing visibility.
Centerlines and side stripes were poorly marked on the road
making it diffjcult to see the two-lane highway. The road
surface was rough. The zebra-striped reflective bridge
marker was missing on the corner where the Lindberg car
approached the Pass Creek Bridge.
The driver of the truck, Toland, testified to the
circumstances immediately preceding the fatal accident. The
headlights of the Lindberg car were raised from low beam to
high beam at approximately 150 yards from his truck. Toland
turned the truck lights on bright. and back to dim to indicate
the truck's lights were set on low beam. Toland testified
that the Lindberg vehicle swerved into his lane, immediately
before impact.
There is conflicting testimony regarding the point of
impact and the position of either vehicle. Testimony of the
investigating patrolman, Officer Lee Graves, indicated the
Lindberg car crossed the centerline and drove into the
Leatham truck. Appellants' expert witness, F. Denman Lee, a
physicist, reconstructed the accident and presented testimony
that the collision occurred in the northbound lane.
Dr. Tranel, a clinical psychologist from Billings,
Montana, testified as to the visual and perceptual field
available to the decedent just before the colli.sion. Dr.
Tranel opined that perceptual distortion immediately prior to
the accident triggered an irrational or panic response by
Mrs. Lindberg causing her to swerve her car to correct the
visual aberration, thus proximately causing her death. The
court refused to hear Dr. Tranel's testimony as to what
caused perceptual distortion.
Appellants contend that defense counsel's lack of
cooperation during discovery stage caused undue delay which
denied appellants a fair trial. Guaranty National Insurance
Co. insured both Leatham and Patricia A. Lindberg. Separate
counsel was hired by Guaranty Natj-onal to represent each
insured when T,eatham filed a counterclaim seeking damages
against Lindberg. When Patricia Lindberg's present counsel
attempted to discover facts from Guaranty National, her
insurer, counsel for Lindberg hired by Guaranty National djd
not release information from its investigation file until
respondent Leatham had determined its position. Driver
Toland's 7oq hook was never provided, even though highway
patrolman Lee Graves said he either gave it to the truck
driver or put it back in the truck after he finished
reviewing it. Photographs taken on behalf of the decedent,
and in the possession of insurance adjuster Sid Griffin, were
mad-e available to the appellants only after extended delay.
Appell-ants raise these issues on appeal:
(1) Did the District Court commit error in excluding
the expert testimony of Dr. Tranel regarding the causes of
perceptual distortion encountered by Patricia A. Lindberg
immediately before her death?
(2) Did an abuse of the discovery process by respondent
Leatham and Guaranty National Insurance Company prejudice
appellants' discovery of relevant facts and evidence prior to
trial and deny appellants a fair trial?
(3) Did the District Court err in excluding from
evidence appellants' offered exhibit nos. 133, 134, 137 and
138?
(4) Did the District Court commit error in excluding
exhibit nos. 117, 118, 119, 120, 121 and 122 from the jury
room during del iherations, even though the exhjbits were
received into evidence at the time of trial?
(5 Did the District Court err in excluding from
evidence appellants' offered exhibit nos. 160 and 161, when
the defendant, State of Montana, had admitted the genuineness
of the exhibits and a foundation had been laid to introduce
the exhibits into evidence?
(6) Did the District Court err in excluding appellants'
offered exhibit no. 123, though the exhibit had been used by
their accident reconstruction expert witness and truck driver
Toland admitted his signature was on the document?
(7 DjC! the District Court commit error when it
disallowed testimony from defendant and witness Toland as to
whether U.S. Department of Transportion Regulation No.
391-21 (10) had been complied with in hiring truck driver
Toland, and in refusing to allow the jury to hear evidence
with regard to the integrity of driver Toland both as a
Person and a professional truck driver?
(8) Did the District Court commit error when it refused
to allow testimony from Charles E. Lindberq, a truck driver
with 23 years experience, as to appropriate use of lights
under the circumstances that prevailed when the Leatham
vehicle collided with the Lindberg vehicle?
(9) Did the District Court err in excluding from
evidence appellants' exhibit nos. 149 through 152,
photographs of the roadway where the accident occurred, taken
by Charles E. JJindberg1sson a few months after the accident?
(10) Did the District Court err in excluding exhibjt
nos. 1 5 4 and 155, photoaraphs depicting Patricia A. Lindberg,
deceased, and the appellant Paul Gerard Teaford, neither of
whom were able to be present at the time of trial.?
611) Did the District Court commit error by allowing
Jack Leatham, part owner of Leatham Brothers to submit
testimony regarding an inspection of the condition of the
headlights on the Leatham truck in January 1980?
(12) Did the District Court unfairly prejudice
appellants' case by revealing bias against appel-lantsrexpert
witnesses and by commenting upon the evidence offered by
appellants, implying the judge's opinion as to the weight
such evidence merited?
(13) Did the District Court commit reversible error by
refusing to give appellants' offered instruction no. 11?
(14) Did the District Court commit error in si~ring
instruction no. 19, the State of Montana's offered
instruction no. 16?
(15) Did the District Court commit error in granting
the respondents' joint motion for a directed verdict aqainst
appellants on the claim for damages under what has heretofore
been known as a survival cause of action?
(16) Did the District Court commit error by not
allowing the jury to take an evening recess before
deliberating and consjdering their verdict and. thus deny
appellants a fair trial?
We note that appellants presented two separate theories
of liability in this case. The first theory imposes
liability on the State of Montana for failing to keep Highway
37 in proper repair and for negligently allowing unsafe
conditions to exist at the time of the accident. These
unsafe conditions included a bumpy and narrow roadway, poorly
marked centerline and sideline, and no zebra-striped warning
marker attached to the Pass Creek bridge. Appellants argue
that these conditions alone or coupled with the improper
light-dimming sequence of the driver, Toland, caused a
perceptual distortion which in turn caused an irrational
panic response. The manifestation of this irrational panic
response experienced by Mrs. Lindberg was her swerving into
the wrong lane and into the path of the Leatham truck.
The second theory advanced by appellants is that the
accident occurred in the northbound lane where the Lindberg
vehicle was properly proceeding. The Leatham truck
negligently crossed the centerline of the highway and
collided with the Lindberg vehicle.
Respondents' theory is that the Lin$.berg vehicle swerved
across the centerline into the southbound lane and collided
with the truck.
I. DID THE DISTRICT COURT COMMIT ERROR IN EXCLUDING THE
TESTIMONY OF DR. TRANEI; REGARDING THE CAUSES OF PERCEPTUAL
DTSTORTION ENCOUNTERED BY PATRICIA A. LINDRERG IMMEDIATELY
BEFORE HER DEATH?
This issue presents the question of the scope of expert
testimony and the trial court's role in regul-ating it. Art.
VII, M.R.Evid., deals with opinion and expert testimony.
Rule 702, provides:
"If scientific, technical, or other specialized
knowledae will. assist - trier - - -to
2
the of fact
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of an
opinion or otherwise." (Emphasis added.)
The facts of each case and the substance of the expert
testimony offered must be considered on a case-by-case basis
by the trial court to determine if the testimony falls within
the rule. The proposed opinions offered by Dr. Tranel sought
to establish that the perception of Mrs. Lindberg was so
distorted because of the conditions created by defendants
that a col.l.ison was very likely. The conditions caused the
distortion and. the distortion caused the accident. Dr.
Tranel was going to supply the element of causation to
appellants' case.
Appellants rely heavily on State v. Chapple (Ariz.
1983), 660 P.2d 1208, for the proposition that it is an abuse
of discretion for the trial judge to exclude expert testimony
that could possibly aid the jury in understanding a fact in
issue.
Appellants seek to broaden the law set forth in Chapple.
The Arizona Supreme Court generally adhered to the criteria
set forth in United States v. Amaral (9th cir. 1.9731, 488
F.2d 1148. Amaral and Chapple set forth factors we believe
are useful in determining the admissibility of expert
testimony. The Amaral factors are: (1) qualified expert;
(2) proper subject; (3) conformity to generally accepted
explanatory theory; and (4) probative value compared to
prejudicial effect.
The testimony offered in Chapple regarded the factors
involved in assessing the reliability of the eyewitness
testimony. No opinion was rendered regarding the ultimate
credibility of specific witnesses. Chapple, 660 P.2d at
1222. Dr. Tranel was allowed to testify to fa.ctors involving
perceptional distortion. He was not allowed to testify to
how these factors affected Mrs. Lindberg's mental processes
even a.s the expert in Chapple could not testify that the
existence of an identification factor made a particular
witnesses perception or memory faulty. Chapple was also
limited to its facts on this issue. Chapple, 660 P.2d at
1224.
We hold the trial court. acted within its discretion in
limiting the testimony of Dr. Tranel.
1 . DID AN ABUSE OF DISCOVERY PROCESS EY RESPONDENT
LEATHAM AND GUARANTY NATIONAL INSURANCE COMPANY PREJUDICE
APPELLANTS' DISCOVERY OF RELEVANT FACTS AND EVIDENCE PRIOR TO
TRIAL AND DENY APPELLANTS A FAIR TRIAL?
Appellants argue that discovery abuses prevented them
from obtaininq a fair trial. In Massaro v. nunham (1979),
184 Mont. 400, 603 P.2d 249, we discussed discovery abuse.
That case involved a divorce action where various attempts to
discover information concerning child support payments and to
require production of documents related thereto were ignored
by opposi.ng counsel.. We set forth some general propositions
that govern:
"The District Court has the inherent discretionary
power to control discovery. That power is based on
the District Court's authority to control trial
administration. See, State v. Mecca Twin Theater &
Film Exchange, Inc. (1973), 82 Wash.2d 87, 507 P.2d
1165, 1167. In controllinq discovery, the District
Court must regulate traffic to insure a fair trial
to all concerned, neither according one party an
unfair advantage nor placing the other party at a
disadvantage. State v. Boehme (196?), 71 Wash.2d
621, 430 P.2d 527, 534.
"We will reverse the District Court only when its
judgment may materially affect the substantial
rights of the appellant and allow the possibility
of a miscarriage of justice. Wolfe v. Northern
Pacific Railway Co. (1966), 147 Mont. 29, 41, 409
P.2d 528, 534. We find such a situation here.
"The purpose of discovery is to promote the
ascertainment of truth and the ultimate disposition
of the lawsuit in accordance therewith. Discovery
fulfills this purpose by assuring the mutual
knowledge of a . relevant facts gathered by both
l1
parties which are essential to proper litigation.
gickman v. Taylor (1947), 323 U.S. 495, 507, 67
S.Ct. 385, 392, 91 L.Ed. 451, 460." 180 Mont. at
404, 405, 603 P.2d at 251, 252.
Appellants compl-ain that certain accident reports
prepared by Guaranty on behalf of Leatham were not produced.
The reports were prepared in anticipation of litigation. The
District Court ruled that appellants did not demonstrate a
substantial need for the investigative reports to require
production pursuant to Rule 26(b), M.R.Civ.P. The appellants
offer no substantive reasons why the reports in question
should have been turned over to them; they only complain that
respondents never applied for a protective order. The
District Court properly denied relief to Lindberg.
This ruling was made on September 1, 1982, 8 1./2 months
before trial commenced. Appellants' presentation a t trial
was not prejudiced by this delay.
Appellants claim they were prejudiced by the fact that
they were denied certain photos taken by insurance adjuster,
Sid Griffin before the April 6, 1984 deposition of expert,
Dr. F. Denham Lee. Appellants do not move at trial to limit
inquiry or exclude the use of Dr. Lee's first deposition for
impeachment. Appellants does not identify these crucial.
photos by exhibit number here on appeal nor point out how
they were crucial to Dr. Lee's change in position. Dr. Lee
testified he did a lot more work after his initial
deposition. He viewed 80 additional photos before changing
his position. He had an opportunity to explain his change
from the swerve theory to the theory that the Leatham truck
crossed the centerline. Even if the seven so-called Sid
Griffin photos were wrongfully withheld from appellants their
omission does not amount to reversible error.
111. WHETHER THE DISTRICT COURT ERRED IN EXCLUDING FROM
FVIOENCE APPELLANTS' OFFERED EXHIEIT KOS. 133, 134, 137, 138.
The exhibits are photographs measuring approximatel-y ?
1/2 inches square taken by the county coroner. Each one
depicts a separate piece of decedent's body lying on the road
after the collision. Respondents contend the trial court
properly excluded the photographs because due to their
gruesome nature they were inflammatory and hence their
probative value was outweighed by their prejudicial effect.
Appellants contend the photographs showed a path of
debris that allowed Dr. Lee to reconstruct the accident. The
photographs supported and lent credibility to Dr. Lee's
analysis and tended to disparage Patrolman Grave's version.
The law regarding photographs is easy to state but
sometimes difficult to apply. If the trial court determines
the probative value outweighs the prejudical effect, the
photographs should be admitted. State v. Hoffman (Mont.
1982), 639 P.2d 507, 309 St.Rep. 29; State v. 0'Donnell
(1972), 159 Mont. 138, 496 P.2d 299.
Given the gruesome nature of the photographs, their
quality and size, the lack of background detail, and wealth
of other photographs and information available to Dr. Lee the
trial court did not abuse its discretion by excluding this
evidence.
IV. DID THE DISTRICT COURT COb3"IIT ERROR IN EXCJAITDING
EXHIBIT NOS. 117, 118, 119, 120, 121, AND 122 FROM THE JURY
ROOM DURING DELIBERATION?
The above-mentioned exhibits, a map and models which
aided Dr. Lee in explaining his theory, were admitted into
evidence. Jt was stipulated that the evidence is
demonstrative in nature. Appellants argue that this evidence
was intended to go to the jury room during deliberation from
the time it was admitted.
Respondents urge that no objection to the admission of
this evidence was made on the condition that it would not go
to the jury room. The trial court did not affirmatively rule
on whether these exhibits could be used by the jury during
deliberations.
The jury had the opportunity to view the evidence. The
exclusion from the jury room of these exhibits did not
material]-y prejudice the appellants' case.
v. DID THE DISTRICT COURT ERR IN EXCLUDING FROM
EVIDENCE LINDBERG'S OFFERED EXHIBIT NOS. 160 AND 161, WHERE
THE DEFENDANT, HIGHWAY DEPARTMENT, HAD ADMITTED THE
GENUINENESS OF THE EXHIBITS AND FOUNDATION HAD EEEN LAID TO
INTRODUCE THE EXHIBITS JNTO EVIDENCE?
Fxhibit nos. 160 and 161 are internal Highway Department
memoranda that contain evaluations of specific stretches of
road within the state. The memoranda include an eva-luation
of the segment of road where this collision occurred. These
documents were drafted to assist the Monta.na Highway
Department in planning a.nd budgeting road. repair, improvement
and replacement. Exhibit no. 161 shows a computer print-out
that summarizes road conditions over a 5.3 mile stretch of
road which includes the col-lision site.
Don Opitz, a state employee, testifying at trial
explained the documents and laid a foundation for their
admission. The District Court excluded exhibit nos. 160 and
161. after lengthy discussion in chamhers with counsel.
The State contends the excluded exhibits were
irrelevant, confusing, prejudicial and erroneous. Appellants
contend the exhihits tend to prove the condition of the
roadway which contributed to the zccident.
Rules 401, 402 and 403, M.R.Evid., provide the general
framework in which this issue must be resolved. These rules
state:
--
"Rule 401. Relevant evidence means evidence having
any tendency to make the existence of any fact that
is of consequence to the determination of the
action more probable or less probable than it would
he without the evidence. Relevant evidence ma.y
include evidence bearing upon the credibility of a
witness or hearsay declarant."
"Rule-
- 402. All releva.nt evidence is admissible,
except as otherwise provided by constitution,
statute, these rules, or other rules applicable in
the courts of this state. Evidence which is not
relevant is not admissible."
"Rule -
- 403. Although relevant, evidence may be
excluded if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or
by consi.derations of undue delay, waste of time, or
needless presentation of cumulative evidence."
These exhibi-ts are relevant. They tend to show the
general condition of the highway which was a material issue
in the appel-lants' case against the State of Montana. The
argument of the Highway Department th3.t the printouts were
too prejudicial or confusing is without merit. The Hi9hwa.y
Department was afforded ample opportunity to present the
factual evidence expl-aining the reports to the jury in
cross-examination of sta.te employee Opitz and. in final
argument. The view that the jury would be misled and would.
not take into account the photographs of the road and other
evidence or be able to sort out the d.ifferent theories of the
case is very paternalistic and shows a lack of confidence in
the intelligence and common sense of the average juror.
The trial court erred by not admitting this evidence.
However, given all of the evidence admitted concerning the
road conditions, the error did not material]-y prejudice
appellants' case and i.s harmless.
VI. DID THE DISTRICT COURT ERR IN EXCLUDJNG LINDBERG'S
OFFERED EXHIBIT NO. 123, EVEN THOUGH THE EXHIBTT HAD BEEN
USED BY THEIR ACCIDENT RECONSTRUCTION EXPERT WITNESS AND
TRUCK DRIVER TOLAND ADMITTED HIS SIGNATURE APPEARED ON THE
DOCUMENT?
Exhibit no. 123 is a receipt or bill of lading which was
signed. by driver Toland when he picked up his load before he
left Seeley Lake. Appellants argue the document should have
been admitted because it wa-s used to impeach driver Toland.
Appellants also assert that the credibility of Dr. Lee was
damaged by respondent's counsel's assertion that exhibit no.
123 contained unreliable hearsay.
Driver Toland was confronted with exhibit no. 1 2 3 . He
admitted signing it. Appellants' counsel offered the
document into evidence. The trial court did not admit it.
At the time exhibit no. 1-23 was rejected, Toland had not yet
made the prior inconsistent statement referred to in
appellants' brief. Jn fact, the inconsistency was elicited
by respondent's counsel. Appell-ants made no further effort
to use exhibit no. 123 to impeach Toland or attempt to have
it admitted as evidence. We find no error.
T7II. DID THE DISTRICT COURT COMMIT REVERSIBLE: ERROR
WHEN IT DISALLOWED THE TESTIMONY FROM WITNESSES LEATHAM AND
TOLAND AS TO WHETHER US. DEPARTMENT OF TRAP~SPORTATION
REGULATTON NO. 391-21 (10), HAD BEEN COMPLIED WTTF IN HIF.ING
TOLAND AND IN REFUSING TO ALLOW THE JURY TO HEAR EVIDENCE
WITF REGARD TO THE INTEGRITY OF DRIVER TOLAND BOTH A
PERSON AND A PROFESSIONAL TRUCK DRIVER?
The U.S. Department of Transportation Regulation No.
391-21, requires that the employer submit information
concerning employees who drive tractor-trailer rigs on the
highways. The information is basically the same as required
on most job applications. The information contained in this
form shows that Toland had been fired from a bus-driving job
for being late for work.
This evidence is relevant only to prove a character
trait of driver Toland, to-wit: He is an irresponsible
employee. Character evidence of this nature is specifically
proscribed. See Rule 404, M.R.Evid.
This evidence has no bearing on truth or veracity. It
does not tend to prove Toland is untruthful. See Rule 608,
M.R.Evid.
Appellants misconstrue what is meant by putting ones
character into issue. Rule 404 (a)(11, M.R.Evid.,
incorporates the time-honored practice of allowing the
accused in a criminal case to introduce evidence of his good
character. The prosecution may then rebut the same. The
rule has no application in civil cases unless the character
trait is an essential element of the charge, claim, or
defense. A character trait of tardiness is not an essential
element of an action alleging negligent driving.
VIII. DID THE DISTRICT COURT COMBIT REVERSIBLE ERROR
WHEN IT REFTJSED TO ALLOW TESTIMONY FROM CHARLES E. LINDBERG,
A TRUCK DRIVER OF 23 YEARS EXPERIENCE, ON THE APPROPRIATE IJSE
OF LIGHTS IJNDER THE CIRCUMSTP.NCES THAT PREVAILED WHEN THE
TRUCKING COMPANY VEHICLE COLLIDED WITH THE LSINDBERG TTEHICLE?
Appellants argue that the testimony of the decedent's
husband, and appellant, should have been allowed because it
would assist the trier of fact in understanding the customs
and accepted driving practices of over-the-road
tractor/trailer drivers. Respondents argue that Lindberg was
not qualifiei!, facts not in evidence were assumed, and that
the subject matter was within common knowledge of the jury.
The trial court must exclude expert testimony if the
subject is one of such common knowledge that men of ordinary
education could reach a conclusion as intelligently as the
witness, but if the matter is suffici-ently beyond common
experience that the opiri.on of the expert would assist the
trier of fact the court must admit the evidence. State v.
Howard (1981), 195 Mont. 400, 404, 405, 637 P.2d 15, 17. We
defer to the discretion of the trial. court in finding no
error here.
IX. DID THE DISTRICT COURT ERR IN EXCLUDING EVIDENCE OF
LINDBERGS' EXHIBIT NOS. 149 THROUGH 153, WHICH ARE
PHOTOGPAPHS OF THE ROADWAY WHERE THE ACCIDENT OCCURRED, TAKEN
BY CHARLES E. LINDBERG'S SON A FEW MONTHS AFTER THE ACCIDENT?
The photos depict the roadway and the scraggy remains of
a bush off the side of the road. The bush photographed hears
no resemblance to the way it looked in full bloom on June 30,
1980. The photograph does not tend to prove, disprove, or
support any material fact in the case. It only tends to
prove the location of a bush. The bush is depicted in other
admissible photos. The evidence is irrelevant and repetitive
and its exclusion was properly within the discretion of the
trial court.
X. DID THE DISTRICT COURT ERR IN EXC1,UDING EXHIBIT NOS.
154 and 155, PHOTOGRAPHS DEPICTING PATRICIA A. LINDBERG,
DECEASED, AND AN APPELLANT, PAUL GERARD TEAFORD, NEITHFR OF
WHOM WERE ABLE TO BE PRESENT AT THE TIME OF TRIAL?
One exhibit shows a happy and healthy Patricia Lindberg
with her son and, the other shows her with her class of
Wyoming school children. The photos were offered to prove
Mrs. Lindberg was in good health. The photo of decedent and
her son was taken in 1976 and the class picture in 1973.
The discretion of the District Court again is the reason
we find no basis to this claim of error. The District Court,
as we have said many times, has broad discretion in the
matter of admitting relevant evidence.
XI. DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY
AL1,OWING JACK LEATHAM, PART OWNER OF LEATHAM TO SUBYIT
TESTIMONY REGARDING AN INSPECTION OF THE CONDITION OF THE
HEADLIGHTS OF THE LEATHAM TRUCK IN JANUARY 1 9 8 0 ?
Appellants claim the testimony of Jack Leatharn should
have been stricken because the matters testified to were not
within his personal knowledge and the testimony was hearsay.
Leatham testified that the truck involved in the collison was
inspected and this inspection included the head lights.
Leatham had no personal knowledge that the headlights on
this particular truck were inspected. His testimony was
based on hearsay. By definition, "hearsay is a statement,
other than one made by the declarant while testifying at
trial or hearing, offered in evidence to prove the truth -
of
- matter
the asserted. If Rule 801 (c), M.R.Evid.
Hearsay is inadmissible except as otherwise provided by
statute, the Montana Rules of Evidence, or other rules
applicable in the courts of this state. Rule 802, M.R.Evid.
Leatham did not acquire his knowledge that the truck was
inspected from personal observation but from a document in
the company records. An out-of-court statement, the
document, was made and repeated in court by Leatham to prove
the truth of the matter asserted, to-wit: that an inspection
of the lights were made in January 1980.
Leatham attempted to introduce this document to prove
his testimony but the matter was dropped when the evidence
was admitted. This document was itself hearsay but could.
have been admitted under the "records of regularly conducted
activity1' exception to the hearsay rule, Rule 803 ( 6 ) ,
M.R.Evid., if a proper foundation were laid. Since appellant
did not pursue their objection and acquiesced to the
admission of Leatham's testimony, we find no reversible
error.
XII. DID THE DISTRICT COURT UNFAIRLY PREJUDICE
LINDBERG'S CASE BY REVEALING TO THE JURY ITS ETAS AGAINST
LINDBERG'S EXPERT WITNESSES AND BY COMMENTING UPON THE
EVIDENCE OFFERED BY LINDRERG IMPLYING TTS OPINION AS TO THE
WEIGHT SUCH EVIDENCE MERITED?
Appellants contend that the trial court prejudiced the
jury by its comments to appellants' expert witnesses and
comments on the evidence. After reviewing the instances
cited by appellants in their brief and looking at the record
as a whole, we find no showing of bias that could be imputed
to the District Court.
XIIL. DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY
REFUSING TO GIVE LINDRERG'S OFFERED INSTRUCTION NO. 11?
Appellants' offered instruction nos. 1 0 and 11 quoted
federal and state laws which concern the dimming of
headlights at night on. the highway. The court gave instruc-
tion no. 1 0 but refused to give instruction no. 11. Both
instructions are related and are set forth:
"[Instruction no. 10.1 Federal Motor Carrier
Safety Regulations as prescribed by U. S. Depart-
ment of Transportation, Federal Highway Administra-
tion; Section 392.23, provides:
"'Sec. 329.32 Upper and lower head-lamp beams.
During the time when lighted l-am.ps are required,
every driver shall obey the following:
" (a) Upper beam. He shall use the upper distri-
bution of light when there is no oncoming vehicle
within 5 0 0 feet: Provided, however, that a lower
distribution of light may be used when fog, dust,
or other atmospheric conditions make it desirable
for reasons of safety, and when within the confines
of municipalities where there is sufficient light
to render clearly discernible persons and vehicles
on the highway at a distance of 5 0 0 feet ahead;
"(b) Lower beam. When within 5 0 0 feet of an
on-coming vehicle, he shall use a distribution of
light or composite beam so aimed that the glaring
rays are not projected into the eyes of the
on-coming driver and such distribution of light
shall also be used when following another vehicle
within 5 0 0 feet.'
"If you find David Toland, the driver of the
Leatham Brothers', Inc. truck violated the above
section at or about the time of the happening of
the accident in this case, then such violation may
be considered by you in determining whether or not
there was negligence upon the part of the
defendant, Leatham Brothers, Inc., a Utah
corporation."
"[Instruction no. 11.1 Section 61-9-221(1), MCA,
provides :
"'61-9-221. Use of multiple beam road lighting
equipment. Whenever a motor vehicle is being
operated on a roadway or shoulder adjacent thereto
during the times specified in 61-9-201, the driver
shall use a distribution of light, or composite
beam, directed high enough and of sufficient inten-
sity to reveal persons and vehicles at a safe
d.istance in advance of the vehicles, subject to the
fol.lowing requirements and limitations:
" (1) Whenever the driver of a vehicle 2pproaches
an oncoming vehicle within 1,000 feet, such driver
shall. use a distribution of light or composite beam
so aimed that the gl-aring rays are not projected
into the eyes of the oncoming driver. The lower-
most distribution of light specified in 61-9-220(2)
shall be deemed to avoid glare at all times,
regardless of road contour and loading.'
"The times specified in Sec. 61-9-201, as applica-
ble to this case, is at any time from one-half hour
after sunset to one-half hour before sunrise.
"Secti.on 61-9-220 ( 2 ) , Montana Code ~nnotated,
provides :
" ' ( 2 ) There shall be a lowermost distribution of
light, or composite beam, so aimed and of suffi-
cient intensity to reveal persons and vehicles at a
distance of at least 100 feet ahead; and on a
straight level. of road under any condition of
loading none of the high-intensity portion of the
beam shal.1 be directed to strike the eyes of any
approaching driver.'
"If you find from the evidence in this case that
David Toland, the driver of the Leatham Brothers,
Inc. truck, operated the truck in violation of the
sections above quoted of the Montana Code, you are
instructed - - conduct was negligence - -
that such as a
matter - -
of law.
"However, in this action, a viol-ation of law is of
no consequence unless it was a proximate cause of
the death of Patricia A. Lind-berg. I
' (Empha.sis
added. )
The trial court refused to give instruction no. 11
because it referred only to driver Toland.
Appellants point out that the proposed instruction
mentions that violation of the statute must be a proximate
cause of Mrs. Lindberg's death. They argue that it was not
prejudicial to Leatha.m because Leatham never raised the
contention that the 1igh.t~on Mrs. Lindberg's car blinded
Toland and. that this in some way contributed to the
collision.
These points are well taken but considering the fact
that the court gave appell-ants' instruction no. 10, we find
no reversible error. Instruction no. 10 is a fair statement
of the law. It sets forth the duty of driver TolanC! with
regard to dimming his lights. This instructi-on differs from
instruction no. 11 in that it states a violation of the
regulation may be considered in determining negligence where
violation of the Montana statute is declared neal-igence as a
matter of law by the language of instruction no. 11. It
would have been preferable for the District Court to instruct
on the Montana statutes as they pertain to the use of high
and low beams of headlights at night. However, the
instruction given is sufficiently consonant with the statutes
that the jury could not have been misled. Therefore we find
no error here.
XIV. WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE
ERROR IN GIVING INSTRUCTION NO. 19, STATE OF MONTANA'S
OFFERED INSTRUCTION NO. 16?
Instruction no. 19 given by the court is quoted in part
from the language of section 61-8-321, MCA, and reads as
follows:
"You are instructed that Montana law requires as
follows: 'Upon all roadways of sufficient width a
vehicle shall be driven upon the right half of the
roadway. '
"If you find from the evidence that a party to this
action conducted his or herself in violation of the
law just read to you, you are instructed that such
conduct was negligence as a matter of law.
"However, in this action, a violation of law is of
no consequence unless it was a proximate cause of
an injury."
Appellants object to the instruction because
section 61-8-321, MCA, was not set forth in its entirety and
hence appellant was prejudiced. The remaining portions of
the statute not quoted in the instruction are irrelevant.
Section 61-8-321, MCA, in unabridged form states:
" (1) Upon all roa.d.ways of sufficient width a
vehicle shall be driven upon the right half of the
road.wzy, except as follows:
"(a) when overtaking and passing another vehicle
proceeding in the same direction under the rules
governing such movement;
"(b) when the right half of a roadway is closed to
traffic while under construction or repair;
"(c) upon a roadway divided into three marked
lanes for traffic under the rules applicable there-
on; or
"(dl upon a roadway designated and signposted for
one-way traffic.
" (2) Upon all roadways any vehicle proceeding at
1-ess than the normal speed of traffic at the time
and place and under the conditions then existing
shall be driven in the right-hand lane then avail-
able for traffic, or as close as practicable to the
right-hand curb or edge of the roadway except when
overtaking and passing another vehicle proceeding
j n the same direction or when preparing for a left
.
turn. at an intersection or into a private road or
driveway. I'
Appellants complain that giving instruction no. 19 had
the effect of exonerating the State of Montana by making
Lindberg or Leatham negligent per se. An instruction on
comparative fault was given. The jury was not instructed to
disregard any negligence on the part of the State of Montana,
only that both parties involved in the collision must drive
on the right side of the road. The court did not err in
giving this instruction.
XV. DID THE COURT COMMIT REVERSIBLE ERROR TN GRANTING
THE RESPONDENTS' JOINT MOTION FOR DIRECTED VERDICT AGAINST
APPELLANTS ON THE CLAIM FOR DAMAGES UNDER WHAT HAS HERETOFORE
BEEN KNOWN AS A SURVIVAL CAUSE OF ACTION?
This issue involves the damages allowable in a survival
action. The appellants apparently ask this Court to
reexamine the doctrine that a decedent must live "an
appreciable amount of time" in order for a survival action to
accrue. See Stephens v. Brown (1972), 160 Mont. 453, 457,
503 P.2d 667, 670; Dillon v. Great Northern Ry. Co. (1909),
38 Mont. 485, 496, 100 P. 960, 963; Smith, Thoughts -
on
Survival Action -
in Montana -
and Related Matters, 41
Mont.L.Rev. 165 (1980).
Since the jury found that respondents were not liable
and we affirm their verdict, the above issue is moot a.nd left
for another da.y .
XVI . DID THE DISTRICT COURT COf?IMIT ERROR BY MOT
ALLOWING THE JURY TO TAKE A RECESS BEFORE DELIBERATING AND
CONSIDERTNG THEIR VERDICT AND THUS DENY APPEJJL,ANTS A FAfR
TRIAI,
?
Appellants cannot be heard here on appeal to complain
about a tired jury heing sent to deliberate when they did not
object at trial.
The trial cou.rt should consid-er the hour and condition.
of the jurors before sending them to deliberate. It is the
duty of the trial court acting within its sound discretion
not to allow the jury to begin deliberations under conditions
that would prejudice either party. No objection was raised
a t trial, a n d w e h a v e no grounds t o find i n h e r e n t p r e j u d i c e
to t h e a p p e l . l a n t s .
A£ f i r m e d .
,
>
i Justice
f
,f
j
'./
W e Concur:
Justices