NO. 83-452 IN THE SUPREICE COURT OF THE STATE OF MONTANA 1934

MITZI SCOFIELD,as PersonalRepresentative of the Estate of DANIELC. SANDERS,Deceased, Plaintiff and Respondent,

ESTATE OF JAMES J. WOOD, DefendantandAppellant.



## ........................................ ESTATEOF JAmSJ. WOOD,GLEN P. WOOD, and ROSALYN JUNE WOOD, Counterclaimants, Cross-Plaintiffs and Appellants,

MITZI SCOFIELD,

### as PersonalRepresentative of the Estate of DANIELC. SANDERS, Deceased, Counterdefendant,Cross-Defendant and Respondent.

APPEAL FROM: DistrictCourtof the Fifth JudicialDistrict, Inand for the County of Beaverhead, TheHonorable LeroyMcKinnon, Judgepresiding. COUWSEL OF RECORD: ForAppellants: 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

ClerkMr. 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 80percent negligent and plaintiff Daniel

### J. Sanders 20 percent negligent in an action forwrongful 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-escollided 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-owingtheir demise, indicated blood alcohol levels of .22 percent by volume for Sanders and .04 percent blood alcohol 1-eve1517 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 counterclaimedand filed a cross-claim against Sanders'personal representative inwhat they labeled

a survivalaction. 

### A jury trialwas 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 wasnecessary. 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 ithad indicated.it would? 3. Is a survivalaction a compulsory counterclaim to a counterclaim asserting such a survival action, or may it be brought ind.ependentlyin 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 Sandersvehiclewas 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. Iwould say that theWood vehiclewas 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 controllingMontana case law permitting such testimony. We agree. Thehighway 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-vehicleaccid-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 thepoint of impactwas across the centerline in Sanders' Lane of 

### travel-. In Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428, this Courtheld that as long asan officer isproperly qualified as an expert and is inpossession of sufficient facts to warrant the conclusions stated, expert opinion evidence is admissible in expl-ainingthe causeof 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 tobe decided hy 

### the trier of 

### fact." Also

### see,Pachekv. Norton ConcreteCo. (1972),160Mont. 16, 499 

### P.2d 766 (whereultimate 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 statehis opinion as to the point of impact)

# . Appellant also objects to the patrolman's testimony on the ground that his statementsconcerningabsence of evidence of prior weaving of the Sanders' vehicle were speculativeandexceeded permissible expert opinion. This objection is withoutmerit. Appellant failed to object at the 

### time of trial to the opinj-ons. Rule 103(a)(1)

## ,Mont.R.Evid., places aburden 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),174Mont. 107, 568 P.2d 571; In re Stevenson (1975), 167Mont. 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-ypatrolman



### wasmade, and none appears in the record. The grounds stated for objection on appeal were not stated at trial., nor for thatmatter,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 claimedprejudice 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 notbe disturbed on appeal. Graham



### v. Rolandson (1367), 150Mont. 270, 435 P.2d 263. The next issue concerns the withdrawn jury instruction

on blood alcohol levels. The instruction was offered by defenda.ntWood

### '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 lessby 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 theperson's blood, it shall be presumed that the person was under the infl-uence of alcohol.I' The statuteprovides: 

### "(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 followingpresumptions: '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 defendantwas not under the influence of alcohol. 

### "(b) If therewas 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 knewof none other to give. The followingday thedefense called its finalwitness, 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 objectionwas raised by 

### defense counsel. It is obvious that, at the time of this trial, the controlling statute on presumptions arisinq fromblood alcohol levels was applicable only to criminal prosecutions for driving while under the influence of alcohol. The plain language of the statute soprovides,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 instructionno. 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. Thewitness discl-osedthat 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.gelsaction. Accordingly, there isno error. Finally, appellant requests this Court to reach the issue 

### of whether a survival action is a compulsory counterclaim to a counterclaim alleginga survivalaction. The record indicates the issue was never raised or decided by 

### the District Court. Issues not raised at trial need notbe 

### considered by this Court. Huggansv. 

### 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 treatmentof 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,shouldbe able to testify about speed if they are in the possession of certainphysical evidence. 

### A highway patrolman should also be permitted to testify about point of impact if sufficientphysical evidence is available to provide a foundation for the giving of an expert opinion. No investigating officer should be permitted to draw conclusions aboutwhat caused an accident orwhether 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 statingwhat, in his opinion,caused the accident. 

### I would change the law prospectively becasue these litigants and the trial judge relied upon ourpast decisions. However, from this day forward I 

### would hold that investigating officerswill not be permitted to testify about the causesof an accident or give opinion testimony about ,-aw violationson the part of amotor vehise operator.

I

### concurwithMr. JusticeMorrison.