NO. 83-452 

IN THE SUPREICE COURT OF THE STATE OF MONTANA 

1934 

MITZI SCOFIELD, as Personal Representative 

of the Estate of DANIEL C. SANDERS, Deceased, 

Plaintiff and Respondent, 

ESTATE OF JAMES J. WOOD, 

Defendant and Appellant. ........................................ 

ESTATE OF JAmS J. WOOD, GLEN P. WOOD, 

and ROSALYN JUNE WOOD, 

Counterclaimants, Cross-Plaintiffs 

and Appellants, 

MITZI SCOFIELD, as Personal Representative 

of the Estate of DANIEL C. SANDERS, Deceased, 

Counterdefendant, Cross-Defendant 

and Respondent. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Leroy McKinnon, Judge presiding. 

COUWSEL OF RECORD: 

For Appellants: 

Landoe, Brown, Planalp, Kornmers & Lineberger; 

Gene I. Brown, Bozeman, Montana 

For Respondents: 

Christine C. Parker for Scofield, Dillon, Montana 

Thomas 3. Scott, Dillon, Montana 

C. Richard Anderson, Butte, Montana 

----- - -. . . -- 

Submitted on Briefs: April 5, 1984 

Decided: June 27, 1984 

Clerk 
Mr. Chief Justice Frank T. Haswell delivered the Opinion of 

the Court. 

The James J. Wood estate appeals a iudgment awarded 

against it in the sum of S24,000 based on a jury verdict 

finding decedent 80 percent negligent and plaintiff Daniel J. 

Sanders 20 percent negligent in an action for wrongful death 

in the Beaverhead County District Court. 

Decedent Wood was proceeding north on Highway 41. in 

Beaverhead County and decedent Sanders proceeding south on 

the same highway when the two vehicles collided about eight 

miles north of Dillon, Montana. The drivers of both vehicles 

had been drinking beer the evening immediately prior to the 

early morning accident. The vehicl-es collided in decedent 

Sanders' lane of travel, and both drivers were killed. A 

passenger in Sanders' vehicle recovered from the accident but 

was unabl-e to recall any details of the accident. Blood 

samples taken from Sanders and Wood, £011-owing their demise, 

indicated blood alcohol levels of .22 percent by volume for 

Sanders and .04 percent blood alcohol 1-eve1 517 volume for 

Wood. 

The personal representative of Sanders' estate brought 

an action for wrongful death against Wood's estate. Wood's 

estate and his parents counterclaimed and filed a cross-claim 

against Sanders' personal representative in what they labeled 

a survival action. 

A jury trial was held June 1-3, 1983. The investigating highway patrolman testified that the accident occurred 

because the Wood vehicle was over the centerline and in 

Sanders' lane of travel. During the settlement of jury 

instructions, prior to the conclusion of testimony, the court 

indicated that an instruction on blood alcohol levels was 
necessary. However, the court did not give the instruction 

as indicated. The jury rendered a verdict in favor of Sanders' estate and awarded damages in the amount of $24,000. 

Wood's estate appeals the judgment and a subsequent survival 

action filed by Sanders' representative. 

The following issues are presented in this appea.1: 

1. Was the highway patrolman's testimony concerning 

the cause of the accident properly admitted in evidence? 

2. Was it reversible error for the trial court to fail 

to give a jury instruction regarding blood alcohol levels 

after it had indicated. it would? 

3. Is a survival action a compulsory counterclaim to a 

counterclaim asserting such a survival action, or may it be 

brought ind.ependently in a subsequent lawsuit? 

Appellant objects to the foll.owing testimony by the 

highway patrolman: 

"Q. Frank, during your investigation, 

did any person inform you that the Sanders vehicle had been swerving prior to 

the accident? A. No. 

"Q. Was there any evidence that the 

Sanders vehicle was not in control at the 

time of the accident? A. No. 

"Q. From your investigation, you made a 

determination as to which vehicle caused 

the accident. A. Yes. 

"Q. And what is that determination? 

A. I would say that the Wood vehicle was 

over the centerline in the Sanders lane 

of traffic." 

This evidence was admitted following an in-chambers 

discussion between counsel and the presiding judge. Counsel 

for Sanders argued that there is controlling Montana case law 

permitting such testimony. We agree. 

The highway patrolman was the investigating officer and 

arrived on the scene shortly after the accident. By his own 
testimony, he had experience investigating hundred-s of 

mul-tiple-vehicle accid-ents. His qualifications as an expert 

witness were not challenqed at trial. He testified that he 

measured scuff and skid. marks, noted the resting positions of 

the vehicles, examined damage to the vehicles, mapped gouge 

marks in the pavement and noted the accident site's relation 

to nearby features of the highway as a part of his investigation. From the information gathered at the accident site 

and twenty-nine years of experience as a highway patrolman, 

he concluded the point of impact was across the centerline in 

Sanders' Lane of travel-. 

In Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428, 

this Court held that as long as an officer is properly qualified as an expert and is in possession of sufficient facts to 

warrant the conclusions stated, expert opinion evidence is 

admissible in expl-aining the cause of the accident. 

Additionally, Rule 704, Mont.R.Evid., provides: 

"Testimony in the form of an opinion or 

inference otherwise ad.missible is not 

objectionable because it embraces an 

ultimate issue to be decided hy the trier 

of fact." 

Also see, Pachek v. Norton Concrete Co. (1972), 160 Mont. 16, 

499 P.2d 766 (where ultimate question of negligence of driver 

or proximate cause of injuries not addressed by testimony, 

opinion of patrolman as to cause of accident admissible); 

State v. Stoddard (1966), 147 Mont. 402, 412 ~.2d 827 (patrolman with ten years of experience assigned to accident 

investigation allowed to state his opinion as to the point of 

impact) . 

Appellant also objects to the patrolman's testimony on 

the ground that his statements concerning absence of evidence 

of prior weaving of the Sanders' vehicle were speculative and 
exceeded permissible expert opinion. This objection is 

without merit. 

Appellant failed to object at the time of trial to the 

opinj-ons. Rule 103 (a) (1) , Mont.R.Evid., places a burden upon 

the party at trial. to object and state the specific ground of 

objection. An objection raised for the first time on appeal 

is not timely. Berdine v. Sanders County (1.974), 164 Mont. 

206, 520 P.2d 650. Unless a timely objection to evidence or 

testimony is raised at the trial level, it cannot be considered on appeal. Sikorski v. Olin (1977), 174 Mont. 107, 568 

P.2d 571; In re Stevenson (1975), 167 Mont. 220, 538 P.2d 5; 

Close v. Ruegsegger's Estate (1963), 143 Mont. 32, 386 P.2d 

739. No objection to the testimony of the highwa-y patrolman 

was made, and none appears in the record. The grounds stated 

for objection on appeal were not stated at trial., nor for 

that matter, were any grounds given at all. Appellant failed 

at trial. to preserve this issue for appeal. Counsel must 

preserve the record to perfect appellate review of an issue. 

Goggams v. Winkl-ey (1972), 159 Mont. 85, 495 P.2d 594; Clark 

v. Worra.11 (1965), 146 Mont. 374, 406 P.2d 822. 

Furthermore, the claimed prejudice could have been, and 

in fact was, alleviated through cross-examination. In the 

absence of a showing of an abuse of the trial court's discretion, its decision should not be disturbed on appeal. Graham 

v. Rolandson (1367), 150 Mont. 270, 435 P.2d 263. 

The next issue concerns the withdrawn jury instruction 

on blood alcohol levels. The instruction was offered by 

defenda.nt Wood ' s estate. Proposed. instruction no. 36 reads 

as follows: 

"You are instructed that the laws of the 

State of Montana recognize the foll-owing 

presumptions: 
"(a) If there was at the time 0.05% or 

less by weight of alcohol in the person's 

blood, it shall be presumed that the 

person was not under the influence of 

alcohol. 

"(b) If there was at the time in excess 

of 0.05% but less than 0.10% by weight of 

alcohol in the person's blood, that fact 

shall not give rise to the presumption 

that the person was or was not under the 

influence of alcohol. 

"(c) If there was at the time 0.10% or 

more by weight of alcohol in the person's 

blood, it shall be presumed that the 

person was under the infl-uence of 

alcohol. I' 

The statute provides: 

" (3) In any criminal prosecution for a 

violation of subsection (1) of this 

section relating to driving a vehic1.e 

while under the influence of alcohol, the 

amount of alcohol in the defendant's 

blood at the time alleued, as shown by 

chemical analysis of the defendant's 

blood, urine, breath, or other bodily 

substance, shall give rise to the following presumptions: 

'I (a) If there was at that time 0.05% or 

less by weight of al.coho1 in the defendant's blood, it shall be presumed that 

the defendant was not under the influence 

of alcohol. 

" (b) If there was at that time in excess 

of 0.05% but less than 0.10% by weight of 

al-coho1 in the defendan.tls blood, that 

fact shall not give rise to any presumption that the defendant was or was not 

under the influence of alcohol but such 

fact may be considered with other competent evidence in determining the guilt or 

innocence of the defendant. 

"(c) If there was at that time 0.10% or 

more by weight of alcohol in the defendant's blood, it shall be presumed that 

the defendant was under the influence of 

alcohol. " Section 61-8-401 (3), MCA 

(1981). 

At the close of the second day of trial and before the 

defense had completed its testimony, counsel and the court 

settled the instructions to he given the jury. During this 
conference counsel for plaintiff objected to the foregoing 

proposed instruction no. 36 on the ground that the presumptions stated in the proposed instruction are applicable only 

to criminal trials. After noting that the jury needed some 

guidance on the effect of blood alcohol levels on performance, the judge stated the instruction was helpful and he 

knew of none other to give. 

The following day the defense called its final witness, 

Kenneth Anderson, a forensic scientist employed at the Montana State Criminal Investigation Laboratory. Anderson 

testified on the physiological effects of various levels of 

blood alcohol. 

At the time the jury was instructed, proposed instruction no. 36 was omitted. No objection was raised by defense 

counsel. 

It is obvious that, at the time of this trial, the 

controlling statute on presumptions arisinq from blood alcohol levels was applicable only to criminal prosecutions for 

driving while under the influence of alcohol. The plain 

language of the statute so provides, and there is nothing for 

the court to interpret. Mont. Ass'n. of Underwriters v. 

State, Etc. (1977), 172 Kont. 211, 563 P.2d 577. Since 

proposed instruction no. 36 did not state the law applicable 

to the facts of this case, it was an improper instruction. A 

party cannot claim reversible error from the denial of an 

improper instruction. 

Additionally, Ken Anderson, a forensic scientist, 

testified extensively on aI-coho1 impairment immediately 

before the jury retired. The witness discl-osed that the test 

results showed decedent Sanders' blood alcohol level to be 

.22 percent. Counsel for the defense elicited testimony 
concerning the impairment of vision and c~ordination at this 

level of intoxication. 

We find the proposed instruction improper and fail to 

discern any prejudicia.!. reliance on its offering and the 

-jud.gels action. Accordingly, there is no error. 

Finally, appellant requests this Court to reach the 

issue of whether a survival action is a compulsory counterclaim to a counterclaim alleging a survival action. 

The record indicates the issue was never raised or 

decided by the District Court. Issues not raised at trial 

need not be considered by this Court. Huggans v. Weer (Mont. 

1980), 615 P.2d 922, 37 St.Rep. 1512. 

Affirmed. 

?Ad42 ,g&,&&9 Chief Justice 

We concur: 

Justices 
Mr. Justice Frank B. Morrison, Jr. specially concurs as 

follows : 

I concur in the result but dissent from the majority's 

treatment of the first issue. 

The majority correctly notes that Montana has a liberal 

rule permitting nearly every form of opinion testimony 

offered by an investigating officer. In this case the 

Highway Patrolman, pursuant to that rule, was permitted to 

testify about whether a certain driver had lost control at 

the time of the accident and was permitted to testify about 

the cause of the accident. The Montana rule as applied makes 

no sense. 

Highway patrolmen and other persons with specialized 

training in accident investigation, should be able to testify 

about speed if they are in the possession of certain physical 

evidence. A highway patrolman should also be permitted to 

testify about point of impact if sufficient physical evidence 

is available to provide a foundation for the giving of an 

expert opinion. No investigating officer should be permitted 

to draw conclusions about what caused an accident or whether 

certain drivers were guilty of law violations. An anomaly 

appears in the Montana law. We do not permit evidence that 

the officer ticketed a party to the lawsuit. However, we do 

permit the officer to give the same form of evidence by 

stating what, in his opinion, caused the accident. 

I would change the law prospectively becasue these 

litigants and the trial judge relied upon our past decisions. 

However, from this day forward I would hold that 

investigating officers will not be permitted to testify about 

the causes of an accident or give opinion testimony about ,-aw 

violations on the part of a motor vehise operator. 

I concur with Mr. Justice Morrison.