No. 89-115 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

LINDA M. HART-ANDERSON, 

Plaintiff and Respondent, 

GERALDINE C. HAUCK and STATE FARM 

INSURANCE COMPANY, 

Defendants and Appellant. 

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APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, 1989 
Justice 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 of plaintiff. Defendant appeals. We reverse. 

The issues presented for our review are: 

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 cause of the accident? 

4. Did the District Court err in excluding testimony 

regarding a traffic citation? 

The present case involves a traffic accident and issues 

of negligence. The case was originally tried by jury in May 

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 for a 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 plaintiff was not 

contributorily negligent. Defendant contends that a directed 

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 has previously 

stated that, "No case should be withdrawn from the jury if 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 record 
reveals issues of 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 in vehicles traveling east 

on Broadway, approaching the intersection to Tenth Avenue, 

with plaintiff ahead of defendant. Broadway approaches Tenth 

Avenue with a downhill incline. As plaintiff approached 

Tenth Avenue, she noticed a large delivery 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. It came to rest alongside the Volkswagen, facing 

south. The damage to plaintiff's car was estimated at $685. 

There was testimony presented at trial from five eyewitnesses to the accident. In addition to the testimony of both 

plaintiff and defendant, there was testimony submitted by 

deposition from Ms. Heald, the driver of the Volkswagen. The 

jury also heard testimony from Mr. Poindexter and Mr. 

Merriweather, both eyewitnesses to the accident. Mr. 

Merriweather witnessed the accident as he was 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 a nearby office building. Some of the 

testimony from these witnesses differs markedly as to how and 

where the accident occurred. 

Plaintiff testified that as she traveled down Broadway 

her rear tire bumped the curb approximately 50 feet prior to 

reaching the intersection. She testified that she 
straightened her vehicle and was beginning her turn when 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 plaintiff was 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 right because 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 turn without problem had plaintiff 

not had difficulty negotiating her turn and if plaintiff had 

not stopped in front of her. 

Defendant relies on this Court's holding in Reed v. 

Little (1984), 209 Mont. 199, 680 P.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 that Reed is controlling in the present case. In 

Reed, we discussed negligence per se and its interaction with 

Montana's newly enacted statute on contributory negligence, 

B 27-1-702, MCA. In Reed, we stated: 

We hold that the defense of contributory negligence 

on plaintiff's part is available to a defendant who 

has violated a traffic statute. It is for the fact 

finder to determine the comparative degree of 

negligence on the part of plaintiff and defendant. 
Reed, 680 P.2d at 940. 

In Reed, defendant rear-ended the vehicle ahead of him. 

Although the evidence in Reed on behalf of defendant established that plaintiff made an abrupt stop in front of defendant, plaintiff denied the stop. This conflicting testimony 

was properly submitted to the jury. In Reed, the jury found 

the lead driver was contributorily negligent even though 

defendant hit her 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 to weigh conflicting evidence; rather, 

that is the function of the trier of fact, in this case, the 

jury. As in Reed, it was possible for the jurors to find 

that plaintiff came to an 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 in favor of plaintiff was not 

appropriate. We remand this case to the ~istrict Court. 

Additionally, we address the following evidentiary issues for 

guidance at a subsequent trial. 

I1 

Did the District Court err in excluding certain hearsay 

evidence? 

At trial, counsel for defendant made an offer of proof 

regarding the admissibility of certain testimony by Mr. 

Poindexter. The offer of 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 was 
the 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 statement within either the present sense impression or 

excited utterance exception to the hearsay rule. We conclude 

that this offer of proof was properly denied. We affirm the 

District Court on this ruling. 

I11 

Did the District Court err in allowing a police officer 

to testify as to the cause of 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 a police officer. He testified that his 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 defendant was driving too fast 

for the road conditions. Defendant objected to this testimony at trial, urging lack of foundation. Defendant also 

contends the accident was not sufficiently complex to necessitate expert opinion regarding causation. 

We do not agree that an officer with years of experience 

in investigating accidents cannot assist the jury in its 

determinations. In Foreman v. Minnie (1984), 211 Mont. 441, 

689 P.2d 1210, this Court allowed a deputy sheriff to testify 

as to the cause of an automobile accident. In Foreman we 

also noted that there was adequate opportunity to 
cross-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, 530 P.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 foundation was presented for his 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, 647 P.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 of proof during trial, requesting that she be allowed to testify to an alleged statement 

made to her by Officer Oberg. The offer of proof stated that 

if allowed defendant would testify that while issuing her a 

traffic citation, Officer Oberg told her, "I'm going to issue 

this to you, but you don't deserve it, but I have to do it 

because of my superiors. If I don't do it, they will make 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 ticket be dismissed. Defendant contended that 

although this alleged statement was hearsay, it was admissible to impeach Officer Oberg's testimony regarding the cause 

of the accident. The trial court denied this offer of proof. 

The offered testimony refers to the issuance of a criminal citation and is inadmissible because it is irrelevant and 
prejudicial. 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 

Court did not err in denying this offer of proof. We affirm 

the District Court's ruling on this issue. 

L 

We Concur: 

Justices 
Justice R. C. McDonough dissenting: 

I would affirm the directed verdict in favor of the 

plaintiff. The defendant was clearly negligent as a matter 

of law. The defendant failed to slow and control her vehicle 

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 a proximate cause of the accident 

is imaginative. There isn't any substantial evidence 

favorable to the defendant which 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 John C. 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. It was 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 

sustained by Hart-Anderson's automobile, and that the failure 

of the insurer to quickly pay such claim was evidence of its 

bad faith in the handling of insurance claims. 

On the first trial, the jury determined that Mrs. 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-Anderson was zero percent responsible. It found damages 

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 was made 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 100 
percent 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 liability of the insurer. 

From the record of this case then, we have the finding 

of the first jury that Mrs. Hauck was 100 percent negligent 

because of the collision; we have the testimony of a 

respected retired claims adjuster that Hauck was 100 percent 

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 Hauck was 100 percent 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 of Hauck was 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 to Hauck'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 "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." 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 

directed verdict. 

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), 163 Mont. 

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 

collision rests upon the following driver. 

This case is controlled by 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 conclusion but 

that she is 100 percent 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 recoveries by 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 a directed verdict. In this state we don't need 

tort reform; what is wanting is court reform. 

I would affirm. Two trials are enough already. 

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

Justice