### No. 13010 

### INTHE SUPREME COURT OF THE STATE OF 

### MONTANA

ALLEN I..JELLSWILSON, 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: ForAppellant: 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

# 11195 Filed: Decided: 

## FEE

## 1

## Ij175Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This 

### is a personal injury action by a 14year old passenger in a panel truck against the 15year 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 14year old passenger, Allen WellsWilson. Defendants areJames H. Swanson 111, the 15 year old driver, and 

### James H. Swanson, Jr., his father. The father's liability 

### ispredicated 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 WellsWilson,

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 hita ditch intersecting the trail, leftthe trail, hit a tree, and propelled plaintiff partially through the windshield. According toplaintiff, 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 inthe future 

### willrequire a total hip replacement. The primary battleground atthe trialwas the speed at which the panel truck was traveling prior to and atthe 

### timeof the accident. The truck had no speedometer and opinion evidence of the occupants of the vehiclevaried. Following the accident, the truck's gear shiftwas observed tobe locked in second gear. Defendant James H. Swanson, Jr. was permitted totestify that inhis experience with a 

### similar truck, a 1951 GMC flatbed, themaximum speed in second gearwas 18mph. 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 themaximum speed

was 23 mph in second gear. The jury was instructed, ineffect, that Fowler's 

### rebuttal testimony was limited toaffecting the weight and credibilityof defendants' evidence and for impeachment purposes 

### of defendants' witnesses. Another point of conflict atthe trial

### waswhat steps plaintiff had taken for his own safety and whether ornot any of his acts oromissions rendered him contributorily negligent and barred recovery of damages. Four issues arepresented for review on appeal: (1)Should the issueof contributory negligence have been submitted tothe jury? (2) The admissibility of James H. Swanson, Jr.'s testimony concerning themaximum speed in second gear of a 1951GMC flatbed truck, (3) Error ingiving instructionNo. 6 on rebuttal 

### testimony. (4) Constitutionality of the Montana guest statute. It 

### is conceded that thedistrict court submitted the issueof contributory negligence tothejury and instructed them that if they found plaintiff was contributorily negligent his action was barred. Plaintiff contends that there 

### is no evidence on which tobase such an instruction, while defendants contend there is. We hold that submission of the issue of contributory negligencewas reversible error under the evidence atthe trial. Montana's guest statute requires gross negligence and reckless operation before liabilityattaches tothe 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. 8Am 

### 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 accidentwas a 1953 GMC panel truck. Plaintiff objected to this testimony on the basis that it relates to an experiment

or test and no foundationwas 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 Irionv. Hyde, 110Mont. 570, 105 P.2d 666, this Court said that a witness with special knowledge on a subject outside the experience of the ordinaryman may be permitted

### to statehis conclusion astowhat happened based on factshe has observed. A 

### witness of thistype possesses an area of superior knowledge which enables him tounderstand, asone 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 asan aid tothe jury indetermining the speed the truck was traveling prior to the accident. Second, a foundationwas properly laid for the admission of this testimony. On direct examination Mr. 

### Swanson testified that he has been a 

### truck driver formany years, is

### experienced with a variety of vehicles, and has driven a 1951GMC 

### flatbed well

### over
one hundred thousand miles. He 

### stated thatboth the panel and flatbed trucks have identical four speed transmissions and gearing. If any further foundationwas needed it 

### was completed on crossexamination when he testified that both trucks had identical 248 cubic inch sixcylinder engines. We hold the testimony admissible. Plaintiff presented the testimony of Henry Fowler, the former owner of the accident vehicle, inrebuttal. The substance of his testimony was that he had conducted a testwith a 

### 1953 GMC 

### panel truck identical tothe accident vehicle and had achieved

a 

### speed of 23 mph in second gear. The district court gave this instruction tothe jury concerning Fowler's testimony: "You are instructed that theplaintiff presented certain testimony asrebuttal. Such evidence is 

### limited toaffecting the weight and credibility of thedefendants' 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 atthe time

### of the pretrial conference

oratany time

### prior to trial indicate an intention tocallFowler

as a 

### witness. The spiritof the Rules of Civil Procedure and the practice of thedistrictjudge require fulldisclosureof witnessesin advance of 

### trial. Thus Fowler could not be used asa witness inplaintiff's case-in-chief to furnish substantiveproof of a fact in issue. But neither the Rules of Civil Procedure nor the districtjudge's practice requires advance disclosure of rebuttal witnesses for obvious reasons. Thus Fowler could testifyon 

### rebuttal, but the instructionwas necessary toprevent his 

### testimony being considered on the same basis 

### as those witnesses who



### were disclosed inadvance of 

### trial and gave testimony inplaintiff's case-in-chief. So went the district court's reasoning. In our view, the limiting instruction was applied here

as a sanction topromote the salutary objective of fulldisclosure of witnesses inadvance of trial asrequired by the Rules of Civil Procedure. Nonetheless, the substantive effect of rebuttal evidence cannot be diminished in thismanner toaccomplish even the most laudable purpose. The correct rule 

### is summarized inthe following language from 31C.J.S. Evidence 

### 5 2: "Rebutting evidence 

### is that which isgiven 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 indenial of some affirmative factwhich the answering party has endeavored toprove. It embraces alltestimony which tends tocounteract or overcome the legal effect of the evidence for the adverse party." Also 

### see Statev. 

### Hewett, 73 Idaho 452, 254 P.2d 677; State

### v. Mundell, 66 Idaho 339, 158 P.2d 799; Statev. 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 constitutionalityof Montana's guest statute, section 32-1113:"Owner or operator of vehicle released from responsibility for injuriesof quest, when. The owner oroperator of a motor vehicle shall not be liablefor any damages or injuries to any passenger orperson riding in said motor vehicle 

### as a guest or by invitation and not for hire, nor for any damages to such passenger's orperson's parent orguardian, 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 stateand federal courts for 

### a variety of reasons. For representativedecisions 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 DistrictCourt, 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 statutehas been ineffect 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 effectiveJuly 1, 1975. Under these circumstances we decline tohasten 

### itsdemise by judicial decision. We decline tolegislateretroactively 

### as condemned inMontana Horse Products Co. v. Great Northern Ry. Co., 91Mont. 194, 7 P.2d 919; Sunburst 0. & R. Co. v. Great North. Ry. Co., 91Mont. 216, 

### 7 P.2d 927, afffd287 U.S. 358, 53 S.Ct. 145, 77 L.ed 360, 85 ALR 254; 10ALR3d 1371, Sec. 7(a)

# . The judgment of the districtcourt isreversed and the

### case remanded tothedistrictcourt for a new trial.

L 

### Justice We

### concur: 

## - 1

6

## - Chief Justice

JusticeWesley Castles speciallyconcurring: I 

### concur inthe result but not inallthat is said therein.