No. 13010 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ALLEN I..JELLS WILSON, a minor by and through 

his Guardian, Gloria Roche, 

Plaintiff and Appellant, 

JAMES H. SWANSON, JR. and JAMES H. SWANSON, III., 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant : 

Morrison and Hedman, Whitefish, Montana 

Frank B. Morrison argued, Whitefish, Montana 

For Respondents: 

Warden, Walterskirchen & Christiansen, Kalispell, 

Montana 

Merritt N. Warden argued and Gary L. Christiansen, 

argued, Kalispell, Montana 

Submitted: December 12, 1975 

FER 11 195 

Filed : 

Decided: FEE 1 I j175 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is a personal injury action by a 14 year old 

passenger in a panel truck against the 15 year old driver and 

his father. Plaintiff appeals from a judgment entered on a 

jury verdict in favor of both defendants and from denial of 

their motion for a new trial. 

Plaintiff is Gloria Roche, mother and guardian of the 

14 year old passenger, Allen Wells Wilson. Defendants are James 

H. Swanson 111, the 15 year old driver, and James H. Swanson, Jr., 

his father. The father's liability is predicated on signing 

his son's application for a driver's license. 

The accident forming the basis of this action occurred 

about 7:00 p.m. on May 18, 1972. Plaintiff's son, Allen Wells Wilson, 

was a guest passenger in a 1953 GMC panel truck driven by defendant James H. Swanson 111. The vehicle was being driven on a 

"trail" through the woods in the area of Glen Lake, southeast of 

Eureka, Montana. After descending a hill, the vehicle hit a 

ditch intersecting the trail, left the trail, hit a tree, and 

propelled plaintiff partially through the windshield. According 

to plaintiff, he sustained a fracture of the right femur, has 

had a cup mold arthroplasty performed to temporarily alleviate 

complications involving his right hip joint, and in the future 

will require a total hip replacement. 

The primary battleground at the trial was the speed at 

which the panel truck was traveling prior to and at the time of 

the accident. The truck had no speedometer and opinion evidence 

of the occupants of the vehicle varied. 

Following the accident, the truck's gear shift was observed to be locked in second gear. Defendant James H. Swanson, 

Jr. was permitted to testify that in his experience with a similar truck, a 1951 GMC flatbed, the maximum speed in second gear 
was 18 mph. On rebuttal the previous owner of the accident 

vehicle, Harry Fowler, testified that he had conducted a test 

with an identical 1953 GMC panel truck and the maximum speed 

was 23 mph in second gear. 

The jury was instructed, in effect, that Fowler's rebuttal testimony was limited to affecting the weight and credibility of defendants' evidence and for impeachment purposes 

of defendants' witnesses. 

Another point of conflict at the trial was what steps 

plaintiff had taken for his own safety and whether or not any of 

his acts or omissions rendered him contributorily negligent and 

barred recovery of damages. 

Four issues are presented for review on appeal: 

(1) Should the issue of contributory negligence have been 

submitted to the jury? 

(2) The admissibility of James H. Swanson, Jr.'s testimony 

concerning the maximum speed in second gear of a 1951 GMC flatbed 

truck, 

(3) Error in giving instruction No. 6 on rebuttal testimony. 

(4) Constitutionality of the Montana guest statute. 

It is conceded that the district court submitted the 

issue of contributory negligence to the jury and instructed them 

that if they found plaintiff was contributorily negligent his 

action was barred. Plaintiff contends that there is no evidence 

on which to base such an instruction, while defendants contend 

there is. 

We hold that submission of the issue of contributory negligence was reversible error under the evidence at the trial. 

Montana's guest statute requires gross negligence and reckless 

operation before liability attaches to the driver, ordinary 
negligence being insufficient to render the driver liable to 

the passenger. Section 32-1113, R.C.M. 1947. Thus as a general 

rule, ordinary negligence on the part of the guest passenger 

will not bar his claim. 5 Blashfield Automobile Law Practice, 

Third Edition, Secs.215.51, 215.3 and 215.4; 44 ALR2d 1342, 

Sec. 2; 7 Am Jur 2d, Automobiles & Highway Traffic, Sec. 362, 

p. 909; 8 Am Jur 2d, Automobiles & Highway Traffic, Sec. 525, p. 

82; Restatement 2d, Torts, Sec. 482, p. 538. Contributory 

negligence is allowed as a complete defense or bar, under the 

doctrine of comparative misconduct, only when the guest's lack 

of care for his own safety equals the recklessness or willfulness of the driver. 8 Am Jr 2d, Automobiles & Highway Safety, 

Sec. 525, p. 82; 44 ALR2d 1342, Sec. 4. A review of the record 

discloses no evidence of gross negligence or reckless conduct on 

&&'-&%pd 

the part of the passenger permitting a basis for ad- of 

the issue of contributory negligence to the jury. The prejudicial effect of such submission is obvious. 

The plaintiff asserts that the trial court erred in permitting James H. Swanson, Jr. to testify as to the maximum speed 

in second gear of a 1951 GMC flatbed truck. The truck involved 

in the accident was a 1953 GMC panel truck. Plaintiff objected 

to this testimony on the basis that it relates to an experiment 

or test and no foundation was laid to show that the 1951 GMC 

flatbed was substantially similar to the 1953 GMC panel truck. 

We find that the district court was not in error. First, 

plaintiff misconstrues the nature of the evidence presented by 

James H. Swanson, Jr. His testimony relates to his experience 

with a similar vehicle and is not a report as to the results of 

a test or experiment. In Irion v. Hyde, 110 Mont. 570, 105 P.2d 

666, this Court said that a witness with special knowledge on a 

subject outside the experience of the ordinary man may be permitted 
to state his conclusion as to what happened based on facts he 

has observed. A witness of this type possesses an area of 

superior knowledge which enables him to understand, as one without this special knowledge could not, what he has observed. Mr. 

Swanson has had extensive experience with a similar vehicle and 

his testimony was properly offered as an aid to the jury in determining the speed the truck was traveling prior to the accident. 

Second, a foundation was properly laid for the admission of this 

testimony. On direct examination Mr. Swanson testified that he 

has been a truck driver for many years, is experienced with a 

variety of vehicles, and has driven a 1951 GMC flatbed well over 

one hundred thousand miles. He stated that both the panel and 

flatbed trucks have identical four speed transmissions and gearing. 

If any further foundation was needed it was completed on crossexamination when he testified that both trucks had identical 248 

cubic inch six cylinder engines. We hold the testimony admissible. 

Plaintiff presented the testimony of Henry Fowler, the 

former owner of the accident vehicle, in rebuttal. The substance 

of his testimony was that he had conducted a test with a 1953 

GMC panel truck identical to the accident vehicle and had achieved 

a speed of 23 mph in second gear. The district court gave this 

instruction to the jury concerning Fowler's testimony: 

"You are instructed that the plaintiff presented 

certain testimony as rebuttal. Such evidence is 

limited to affecting the weight and credibility 

of the defendants' evidence and for impeachment 

purposes of defendants' witnesses." 

The reason the court gave this instruction is indicated 

in its memorandum attached to its order denying plaintiff a new 

trial. Plaintiff did not at the time of the pretrial conference 

or at any time prior to trial indicate an intention to call Fowler 

as a witness. The spirit of the Rules of Civil Procedure and the 

practice of the district judge require full disclosure of witnesses 
in advance of trial. Thus Fowler could not be used as a witness 

in plaintiff's case-in-chief to furnish substantive proof of a 

fact in issue. But neither the Rules of Civil Procedure nor the 

district judge's practice requires advance disclosure of rebuttal 

witnesses for obvious reasons. Thus Fowler could testify on rebuttal, but the instruction was necessary to prevent his testimony being considered on the same basis as those witnesses who 

were disclosed in advance of trial and gave testimony in plaintiff's 

case-in-chief. So went the district court's reasoning. 

In our view, the limiting instruction was applied here 

as a sanction to promote the salutary objective of full disclosure 

of witnesses in advance of trial as required by the Rules of Civil 

Procedure. Nonetheless, the substantive effect of rebuttal evidence cannot be diminished in this manner to accomplish even the 

most laudable purpose. The correct rule is summarized in the following language from 31 C.J.S. Evidence 5 2: 

"Rebutting evidence is that which is given to 

explain, repel, counteract, or disprove facts 

given in evidence by the adverse party. It is 

that evidence which has become relevant or important only as an effect of some evidence introduced by the other side. Rebutting evidence 

means not merely evidence which contradicts the 

witnesses on the opposite side, but also evidence 

in denial of some affirmative fact which the 

answering party has endeavored to prove. It 

embraces all testimony which tends to counteract 

or overcome the legal effect of the evidence for 

the adverse party." 

Also see State v. Hewett, 73 Idaho 452, 254 P.2d 677; State v. 

Mundell, 66 Idaho 339, 158 P.2d 799; State v. Gish, 87 Idaho 341, 

393 P.2d 342; 29 Am Jur 2d, Evidence S 250, p. 298; 4 Jones on 

Evidence, 6th ed, 5 24:1, p. 74. 

In our view, the limiting instruction should not have 

been given under those circumstances. 

The final question concerns the constitutionality of 

Montana's guest statute, section 32-1113: 
"Owner or operator of vehicle released from 

responsibility for injuries of quest, when. 

The owner or operator of a motor vehicle shall 

not be liable for any damages or injuries to 

any passenger or person riding in said motor 

vehicle as a guest or by invitation and not for 

hire, nor for any damages to such passenger's 

or person's parent or guardian, unless damage or 

injury is caused directly and proximately by 

the grossly negligent and reckless operation 

by him of such motor vehicle." 

The same, similar, and dissimilar guest statutes have 

been declared both constitutional and unconstitutional by various 

state and federal courts for a variety of reasons. For representative decisions holding guest statut~unconstitutional see Brown 

v. Merlow, 106 Cal.Rptr. 388, 506 P.2d 212; Henry v. Bauder, 213 

Kan. 751, 518 P.2d 362; Johnson v. Hassett, N.Dak. Q974), 217 N.W. 

2d 771; Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365; Primes v. 

331 N.E.2d 723 

Tyler, 43 Ohio St.2d 195,/(1975); Manistee v. McGowan, 394 Mich. 

655, 232 N.W.2d 636; Laakonen v. Eighth Judicial District Court, 

Nev. (1975), 538 P.2d 574. Contra: Silver v. Silver, 280 U.S. 117, 

50 S.Ct. 57, 74 L.ed 221; Cannon v. Oviatt, Utah (1974), 520 P.2d 

883; Justice v. Gatchell, Del. (1974), 325 A.2d 97; Keasling v. 

Thompson, Iowa (1974), 217 N.W.2d 687; Naudzius v. Lahr, 253 Mich. 

216, 234 N.W. 581; Delany v. Badame, 49 I11.2d 168, 274 N.E.2d 353. 

Montana's guest statute has been in effect for over 40 

years. It was created by the legislature (Ch. 195, Laws of 1931) 

and has now been annulled by the legislature (Ch. 236, Laws of 

1975). Its repeal became effective July 1, 1975. Under these 

circumstances we decline to hasten its demise by judicial decision. 

We decline to legislate retroactively as condemned in Montana Horse 

Products Co. v. Great Northern Ry. Co., 91 Mont. 194, 7 P.2d 919; 

Sunburst 0. & R. Co. v. Great North. Ry. Co., 91 Mont. 216, 7 

P.2d 927, afffd 287 U.S. 358, 53 S.Ct. 145, 77 L.ed 360, 85 ALR 

254; 10 ALR3d 1371, Sec. 7 (a) . 

The judgment of the district court is reversed and the 
case remanded to the district court for a new trial. 

L 

Justice 

We concur: - 1 

6 - 

Chief Justice 

Justice Wesley Castles specially concurring: 

I concur in the result but not in all that is said 

therein.