No. 89-115

INTHE SUPREMECOURTOF THE STATEOF MONTANA 1989

LINDAM. HART-ANDERSON, Plaintiffand Respondent,

GERALDINEC. HAUCK and STATEFARM INSURANCECOMPANY, DefendantsandAppellant. 2- m (3X 

## - '.z -1 

### --

- Ti, 53

## - l-7 0 

### xrlTl -3 0 C 33 4

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, Inand for the County ofYellowstone, TheHonorableRussell Fillner,Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
K. D. Peterson; Peterson,Schofield & Leckie, ~illings, Montana (Hauck)

For Respondent: Ronald R. Lodders; Crowley, Haughey, Hanson,Toole & Dietrich, Billings,Montana L. B. Cozzens,Billings, Montana

Filed: Submitted on Briefs: July 13, 1989 Decided: October 23, 1989Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from an order by the Thirteenth Judicial District, Yellowstone County, granting a directed verdict in favor ofplaintiff. Defendant appeals. We reverse. The issues presented forour revieware: 1. Did the District Court err in granting a directed verdict? 2. Did the District Court err in excluding certain hearsay evidence? 3. Did the District Court err in allowing a police officer to testify as to the causeof the accident? 4. Did the District Court err in excluding testimony regardinga traffic citation? The present case involves a traffic accident and issues of negligence. The casewas originally tried by jury inMay of 1985. It was subsequently appealed to this Court. In Hart-Anderson v. Hauck (1988), 748 P.2d 937, 45 St.Rep. 18,

we remanded the case fora new trial. A second jury trial was held on December 10, 1988, and at the conclusion of the evidence the court granted plaintiff's motion for a directed verdict, concluding that as a matter of law defendant was negligent and plaintiffwas not contributorily negligent. Defendant contends that adirected verdict was not appropriate in that the testimony at trial raised issues of fact as to whether plaintiff was contributorily negligent. Defendant contends that this evidence should have been submitted to a jury. Regarding a directed verdict, this Court haspreviously stated that, "No case should be withdrawn from the jury if reasonable men may differ as to the conclusions drawn from the evidence.I' Mydlarz v. Palmer/Duncan Const. Co. (1984)

### , 209 Mont. 325, 682 P.2d 695. Our review of the recordreveals issuesof fact upon which reasonable men could differ and we conclude that a directed verdict was not appropriate in this case. This automobile accident occurred in Billings, Montana

on December 6, 1982. The streets that day were very icy. Plaintiff and defendant were both invehicles traveling east
on Broadway, approaching the intersection to Tenth Avenue, with plaintiff ahead ofdefendant. Broadway approachesTenth Avenue with a downhill incline. As plaintiff approached TenthAvenue, shenoticed a largedelivery truck crossing the intersection in front of her. She also noticed a small Volkswagen on Tenth Avenue behind the truck. As plaintiff approached the intersection she also noticed defendant approaching from her rear. Ultimately defendant's vehicle hit the rear end of plaintiff's vehicle, knocking plaintiff's vehicle across Tenth Avenue, where it collided with the Volkswagen. Itcame to restalongside theVolkswagen, facing south. The damage to plaintiff's carwas estimated at $685. Therewas testimony presented at trial from five eyewitnesses to the accident. In addition to the testimony ofboth plaintiff and defendant, there was testimony submitted by deposition fromMs. Heald, the driver of theVolkswagen. The jury also heard testimony from Mr. Poindexter and Mr. Merriweather, both eyewitnesses to the accident. Mr. Merriweather witnessed the accident as hewas sitting inside

a business establishment at the corner of Broadway and Tenth Avenue. Mr. Poindexter also witnessed the accident from the second floor window of anearby officebuilding. Some of the testimony from these witnesses differsmarkedly as tohow and where the accidentoccurred. Plaintiff testified that as she traveled down Broadway her rear tirebumped the curb approximately 50 feetprior to reaching the intersection. She testified that shestraightened her vehicle and was beginning her turnwhen the impact occurred. The testimony of Mr. Poindexter, Mr. Merriweather and Ms. Heald was substantially in accord with this account. These witnesses testified that the impact occurred on Broadway as plaintiff began to turn onto Tenth Avenue. Mr. Poindexter also testified that he saw plaintiff's rear tire bump the curb approximately 40 to 50 feet from the corner. Defendant however, testified that plaintiff's tire bumped the curb as plaintiffwas making her right turn onto Tenth. In substance, defendant stated that she noticed plaintiff having difficulty ahead of her but that she was required to turn rightbecause of the delivery truck on Tenth Avenue. Defendant testified that plaintiff's vehicle was stopped in front of her as she turned the corner, and that the impact occurred on Tenth Avenue. She alleges that she would have made the right turnwithout problem had plaintiff not had difficulty negotiating her turn and if plaintiffhad not stopped in front ofher. Defendant relies on this Court's holding in Reed v. Little (1984), 209 Mont. 199, 680P.2d 937, for the proposition that the defense of contributory negligence is available to her, and should properly have been submitted to the jury. We conclude thatReed is controlling in thepresent case. In Reed,we discussed negligenceper se and its interaction with Montana's newly enacted statute on contributory negligence, B 27-1-702,MCA. InReed,we stated:

We hold that the defense of contributorynegligence onplaintiff's part is available to adefendantwho hasviolated a traffic statute. It is for the fact finder to determine the comparative degree of negligence on the part of plaintiff and defendant.Reed, 680P.2d at940. In Reed, defendant rear-ended thevehicle ahead of him. Although the evidence inReed on behalf of defendant established that plaintiff made an abrupt stop infront of defendant, plaintiff denied the stop. This conflicting testimony

was properly submitted tothejury. InReed, thejury found the lead driver was contributorily negligent even though defendant hither from behind. In the present case, defendant testified that plaintiff was having difficulty controlling her car and making the right turn. She testified that plaintiff came to a stop in front of her. Although three witnesses corroborated plaintiff's version, nonetheless, defendant testified in a contrary manner. It is not appropriate for the court toweigh conflicting evidence; rather, that isthe function of the trierof fact, inthiscase, the jury. As in Reed, it was possible for the jurors to find that plaintiff came toan abrupt stop in front of defendant and was contributorily negligent. We conclude that reasonable men might differ in drawing conclusions from the evidence. Thus a directed verdict infavor of plaintiff was not appropriate. We remand this case to the ~istrict Court. Additionally, we addressthe following evidentiaryissuesfor guidance ata subsequenttrial. I1 Did the District Court errinexcluding certainhearsay evidence? Attrial, counsel for defendant made an offer of proof regarding the admissibility of certain testimony by Mr. Poindexter. The offerof proof was denied. In the offer of proof, defendant asserted that if allowed, Mr. Poindexter would testify that shortly after the accident, he placed a phone call to the attendant at a nearby service station, stating that he had witnessed the accident, and that it wasthe sole fault of the truck pulling out. Defendant contends that although this testimony is hearsay, it is admissible pursuant to either Rule 803(1) or 803(2), M.R.Evid., as either a present sense impression or an excited utterance. The statement at issue was clearly hearsay. Defendant presented no facts in the offer of proof which would place this statementwithin either the present sense impression or excited utterance exception to thehearsay rule. We conclude that this offer ofproof wasproperly denied. We affirm the DistrictCourt on this ruling. I11 Did the District Court err in allowing a police officer to testify as to the causeof the accident? Officer Oberg, a Billings city police officer, investigated the accident shortly after it occurred. He was not an eyewitness to the accident. At trial he testified that he had investigated several hundred automobile accidents in his 14 years as apolice officer. He testified thathis investigation of this accident included interviews with the parties involved,and observations of the scene of the accident, the vehicles, and the road conditions. Officer Oberg was then asked to state his opinion as to the cause of the accident. He stated that in his opinion defendantwas driving too fast for the road conditions. Defendant objected to this testimony at trial, urging lack of foundation. Defendant also contends the accidentwas not sufficiently complex to necessitate expert opinion regarding causation. We donot agree that an officerwith years of experience in investigating accidents cannot assist the jury in its determinations. In Foremanv. Minnie (1984),211Mont. 441, 689P.2d 1210,this Court allowed adeputy sheriff to testify

as to the cause 

### of an automobile accident. In Foreman we also noted that there was adequate opportunity tocross-examine the officer regarding any facts underlying the expert opinion. For other cases allowing an investigating officer to testify regarding the cause of an automobile accident or vehicular speed, see Goodnough

### v. State (1982), 199 Mont. 9, 647 P.2d 364; Rude v. Neal (1974), 165 Mont. 520, 530P.2d 428. We conclude that Officer Oberg's testimony could assist the trier of fact on the issue of causation. He had extensive experience in these types of investigations and an adequate foundationwaspresented forhis testimony. Defense counsel cross-examined the officer as to the basis of his opinion. The jury is free to decide the weight to be given this testimony. Goodnough, 647P.2d at 369. We affirm the District Court's ruling on this issue. IV Did the District Court err in excluding testimony regarding a traffic citation? Defendant made an offer ofproof during trial,requesting that she be allowed to testify to an alleged statement made toher by Officer Oberg. The offer ofproof stated that if allowed defendant would testify that while issuing her a traffic citation,Officer Oberg told her, 

### "I'mgoing to issue this to you, but you don't deserve it, but I have to do it because ofmy superiors. If Idon't do it,theywillmake me go out and issue it, and then just cause some additional problems." Her offer of proof further stated that Officer Oberg told her if she would plead not guilty,he would request that the ticketbe dismissed. Defendant contended that although this alleged statementwas hearsay, itwas admissible to impeach Officer Oberg's testimony regarding the cause of the accident. The trial courtdenied this offer ofproof. The offered testimony refers to the issuance of a criminal citation and is inadmissible because it is irrelevantandprejudicial. Further, such testimony has no bearing on the

cause of the accident. Smith 

### v. Rorvik (Mont. 1988), 751 P.2d 1053, 1056, 45 St.Rep. 451, 455. Additionally, the testimony was hearsay and did not directly impeach Officer Oberg's former testimony. We conclude that the District Courtdid not err in denying this offer ofproof. We affirm the DistrictCourt's ruling on this issue.

L We Concur:

JusticesJusticeR. C. McDonoughdissenting:

I would affirm the directed verdict in favor of the plaintiff. The defendant was clearly negligent as a matter of law. Thedefendant failed to slowand controlhervehicle when difficulties of traffic on the highway were foreseeable to her and was the sole proximate cause of the accident. On this record for a fact finder to find that plaintiff's action in ultimately controlling her car was contributory negligence and aproximate cause of the accident is imaginative. There isn't any substantial evidence favorableto the defendantwhich would permit such a finding. There is not present here, nor under the icy conditions could there have been, a sudden stop or any action by plaintiff which would rise to the point of creating an unforeseeable emergency situation under these circumstances.Justice JohnC. Sheehy,dissenting:

When this case was before us previously, it was a entitled Linda M. Hart-Anderson, plaintiff, v. Geraldine C. Hauck and State Farm Insurance Company, defendants (1988), 748 P.2d 937. Hart-Anderson had sued Hauck and her insurer, State Farm Insurance Company,because of the collision which occurred in Billings,Montana, December 6, 1982. Itwas the position of Hart-Anderson that Hauck was solely responsible for the collision, that Hauck's insurer should have recognized her sole responsibility and paid the damages sustainedby Hart-Anderson's automobile,and that the failure of the insurer to quickly pay such claimwas evidence of its bad faith in the handling of insurance claims. On the first trial, the jury determined thatMrs. Hauck

was negligent and her negligence was the proximate cause of the property damages suffered by Hart-Anderson; that Hart-Anderson was not negligent, and that as to comparative negligence Mrs. Hauck was 100 percent responsible and Linda Hart-Andersonwas zero percent responsible. It founddamages to Hart-Anderson's car in the sum of $687.00; it found that Hart-Anderson had suffered emotional distress for which she

was entitled to $25,000.00; and it found the insurer guilty of a breach of the unfair Claims Settlement Act of Montana and levied exemplary damages against the insurer in the sum of $687,000.00. On the first appeal to this Court,no issue wasmade by defendant Hauck or her insurer as to findings of the jury that Hauck was 100 percent responsible for the collision. The judgment in the first case was reversed on appeal on issues relating to the claim against the insurer and no issue

was decided on appeal which would dispute the finding of 100percent negligence on the part of Mrs. Hauck. Nonetheless the majority of this Court, in an opinion ill-considered as
we pointed out in dissent, reversed the cause for a retrial of all issues, and directed that the cause be bifurcated as to any liabilityof the insurer. From the record of this case then,we have the finding of the first jury thatMrs. Hauck was 100 percent negligent because of the collision; we have the testimony of a respected retired claims adjuster that Hauck was 100percent in fault in the accident and that the plaintiff was not negligent at all; we have the testimony of Earl Hanson, an attorney practicing law in ~illings, that under the facts of this case Hauckwas 100percent negligent;and now, as to the retrial,which is now on appeal, the opinion of the ~istrict Court that the case should not go to the jury because the negligence ofHauckwas so clearly established. None of these circumstances deter the majority from ordering a new trial

### -- on the issue 

### - of negligence! The District Court in this case granted the motion for directed verdict as toHauck's negligence because whether one accepted her version of the incident or that of the other witnesses, she was nonetheless solely responsible for the accident. The majority here has manufactured an issue of fact in stating "Defendanttestified that plaintiff'svehicle

was stopped in front of her as she turned the corner, and that the impact occurred on Tenth Avenue." That statement ignores that this case does not concern a sudden stop nor
even a following-too-closely situation. Here the defendant Hauck had one-half to one-quarter of a block to see the danger and avoid the collision. Hauck had the primary responsibility to avoid the collision in that situation.In Grabs v. 

### iss sou la Cartage Company, Inc. (19761, 169 Mont. 216, 219, 221, 545 P.2d 1079, 1081, 1082, this Court stated: The classic test employed to determine whether a question is one of fact or law, involves the application of a rule of reason. Where reasonable men could draw different conclusions from the presented evidence, the question is one of fact. But if only one conclusion could reasonably be drawn, the question is one of law, properly resolvable through the procedural device of directedverdict.

But the primary responsibility must be on those drivers who have the opportunity to detect the potentially hazardous situation ahead. (Citing authority.)
In Custer

### roadc casting Corp. v. Brewer (1974),163Mont. 519, 521-522, 518 P.2d 257, 259, the Court said: However, in cases where a driver of a vehicle is following another vehicle too closely, we follow the doctrine that the primary duty of avoiding a collisionrestsupon the following driver. This case is controlledby the provisions of § 61-8-329, MCA,which provides: Followinq too closely. (1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

In this case, Geraldine Hauck, following on an icy street, as the testimony shows, almost three-quarters of a block behind the Hart-Anderson vehicle, failed to keep her vehicle under control so as to avoid colliding with the Hart-Anderson vehicle. There can be no other conclusionbut that she is 100percent responsible.District judges of this state are in an intolerable position because of the continuing pattern of this Court to set its face against all recoveriesby plaintiffs whether by judge or by jury. Here, under the cases cited above in this dissent, the District Court would have been subject to reversal if it had

## not qranted a directed verdict. Yet here the District Court has been reversed for following the law and grantinq adirectedverdict. In this state we don'tneed tort reform;what iswanting is courtreform. Iwould affirm. Two trials are enough already.

I concur in the foregoing dissent of Justice John C. Sheehy.

Justice