### No. 83-344 INTHE SUPREMECOURTOF THE STATEOF MONTLNA 1984

DIANEKAY FEELEYFOREMAN, Plaintiff andAppellant,

MICHAEL LEEMINNIE, YELLOWSTONE COUNTY,MONTANA and BOB SMITH LINCOLN-MERCURY, INC., Defendants and Respondents.

APPEAL FROM: DistrictCourtof the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Charles Luedke,Judgepresiding.

COUNSELOF RECORD: ForAppellant: JosephP. Hennessey, Billings,Montana

For Respondents: Keefer, Roybal, Hanson,Stacey & 

### Jarussi,Billings, Montana

SubmittedonBriefs: May 31, 1984 Decided: Xugust 9,1984fir. Justice John Conway Harrison delivered the Opinion of the Court. Appellant brings this appeal from a jury verdict in the Thirteenth Judicial District, Yellowstone County, for the defendants. The jury found the respondents not liable for the injuries appellant sustained in an automobile accident between a sheriff's deputy's vehicle and a vehicle inwhich appellantrode asapassenger. We affirm. On March 15, 1977, appellant (thenage 15)accepted 

### a ride from school with Bradley Shaw. They drove around Billings for 

### a few hours. They stopped at appellant's parent's house and also stopped at a drive-in for dinner. Following this period of driving around, looking for and visiting friends, Shaw purchased a "six pack" of beer ata local bar. Be then drove up to the "Rimrocks" to "park," drink beer and listentomusic. About 

### 8:30 p.m. they started to return to Billings. Around the same 

### time, a severe accidentoccurred on the

### west side of Billings. The sheriff's office dispatched deputies Michael Lee Minnie and Charles Maxwell 

### to investigate and assistatthe accident scene. They drove their patrol cars out of Billings, with sirens blaring and emergency lights flashing, in

### a westerlydirection on Route 3 parallel tothe "Rimrocks." Evidence differs as to the speed of respondent's vehicle, but it exceeded 65 miles per hour. Respondent drove approximately between one-eighth and one-quarter of amileahead of Maxwell. Shaw drove hisvehicle from 23rd Streetand turned out infrontof respondent ontoRoute 3. Respondent, apparently unable to stop or avoid colliding with Shaw, slammed into

### the side of Shaw's vehicle. Both cars skidded off the highway and into the barrow pits on different sides of the road. A day or two after the accident, appellant requested that an officer search the Shaw vehicle for some jewelry she had lost. The officer conducting the search found several empty beer cans and bottles, a few full beer cans and some drug paraphernalia. Both appellant and Shaw admitted consuming at least

one beer during the course 

### of the evening. They admitted having consumed some marijuana prior to the date of the accident,but adamantly denied having consumed anymarijuana

on thedate of the accident. Justprior to the trial, appellant's attorney sought a motioi~in limine to preclude the admission of any evidence of the discovery of the drug paraphernalia in Shaw's vehicle. The District Court denied appellant's motion. A 

### jury then found respondents not liable for the injuries appellant suffered 

### as a result of the accident. Appellant raises the following issues for appeal:

(1)

### Did the District Court err in permitting Deputy Maxwell to testify as an expert witness and state his conclusion as 

### to the cause of the accident? (2) 

### Did the court err in giving a jury instruction regarding the statutory prohibition against driving under the influence? (3)

### Did the court err in denying appellant's jury instruction regarding not imputing appellant's negligence from the negligence of Shaw? (4)

### Did the courterr indenying appellant's motion inlimine topreclude the admission into evidence of the drug paraphernalia found inthe Shaw vehicle? (5) Did the jury render a verdict contrary to the evidence and law? Appellant first contends that the court erred 

### in permitting Deputy tlaxwell's testimony regarding the causeof the accident under Rule 704, Montana Rules of Evidence. There 

### was no need for such testimony because the subject matter was not beyond the ordinary understanding of the jury. She alsoquestionsDeputy Maxwell's qualifications as



### an expert witness in this case. He also improperly testified regarding the legal cause of the accident. We set forth the standard that the determination of the qualification and competency of expert witnesses rests largely with the trial judge, and without a showing of an abuse of discretion such determination will not be disturbed. Goodnough v. State (Mont. 1982), 647 P.2d 364, 39 St.Rep. 1170. This Court affirmed 

### a trial court's determination that highway patrolmen meet necessary qualificationstotestify asexpertwitnesses for automobile accidents and permitted them totestify regarding the cause of the accident. Goodnough 

### v. State, supra; Workman v. McIntyre Construction Co. (Mont. 1980), 617 P.2d 1281, 37 St.Rep. 1637; Rude v. Neal (1974), 165Mont. 520, 530 R.2d 428. Appellant contends that Deputy Maxwell was not the investigating officer at the accident and therefore would not qualify as an expert witness. Maxwell was at the accident site, he witnessed the accident and assisted inthe accident investigation. That combined with his experience

### clearly qualifieshim as an expert. Appellant contends Maxwell stated the legal cause of the accident in his testimony which was inadmissible. Maxwell made the following statements inhis testimony: "Q. [By counsel for respondents] Do you have an opinion, based upon your experience and based upon all of your knowledge of this case,as to whether or not there was any violation of law by Bradley Shaw in this case? "MR. HARTMAN [counsel for appellant]: 

### Qbject, Your Honor, on the grounds it calls for a legal conclusion. "THECOURT: Overruled. Youmay answer. "A.Yes. What is that opinion? "A. I believe that he just failed to yield the right of way because of, I believe, alcoholicbeverages. "Q. 

### Do you have an opinion, Officer Maxwell, as to whether or not Officer Minnie,at the time and place immediately preceding the collision,was driving in a lawful and careful manner and in control ofhisvehicle? "iJIR. HENNESSEY [counsel for appellant]: 

### If 

### the Court please, there has been no foundation for this testimony, it invades the province of the jury, it's immaterial and it's not aproper question. "THE COURT: The objection is overruled. Youmay answer. "Q. 

### What is that opinion? "A. I 

### believe that he was driving in a correct and legalmanner, sir." While Maxwell testified as to what he considered the

cause of the accident, adequate opportunity was given to appellant to elicit any assumptions or factsunderlining the expert opinion. Therefore, the weight of the testimony remains with the jury and the testimony was properlyadmitted

# . Appellant also contends that the expert testimony was unnecessary because the cause of the accidentwas not beyond the ordinary understanding of the jury. Appellant cites Ployhar v. Board of Trustees of Missoula (Mont. 1980), 609 P.2d 1226, 37 St.Rep. 744, for support. We find the facts in the instant case dissimilar to Ployhar

## , supra. Ployhar involved the accidental death caused by heavy equipment being backed over the top of the decedent. The instant case involves an accident where the parties alleged different factors caused the accident. Appellant must have believed the cause of the accident was complicated because she brought in an expert witness to testify regarding the speed of the vehicles. As was properly stated inthedissent inPloyhar, supra: "This Court has long held that expert testimony should be admittedwhenever the issue before the jury concerns a subject of such a nature that the averageperson cannot reach as intelligent a conclusion as one who has had experience with the subject. See, Demarais v. Johnson (1931), 90 Mont. 366, 370, 3 P.2d 283, 285." Ployhar at 612 P.2d at 1228, (HarrisonJ. dissenting). We hold in the instant case that the trial court properly determined the subject matter required expert testimony soasto assistthejury and it properly admitted Maxwell's testimony. We turn to the next 

### issue regarding the jury instrilctions. Appellant contends the trial court erred by admitting thefol.lowingjury instruction: "You are instructed thatMontana Statutes provide that it 

### is unlawful for any person who 

### is under the influence of alcohol or a narcoticdrug todriveor be in actual physical control of a motor

### vehicle upon thehighways of thisstate." Appellant argues that insufficient evidence came into the trial to warrant the giving of this instruction. We 

### disagree. Court's instruction no. 13which instructs that it 

### is 

### unlawful todrive a motor vehicle while under the influence of alcohol or narcotics, should be read along with court's instructionno. 18: "If you find from the evidence that a person inthisaccidentconducted himself in violation of any statute, you are instructed that such conduct was negligence asamatter of law. "However, in this action, a violation of law is 

### of no consequence unless it 

### was a proximate cause of or contributed as a proximate cause toan injuryfound by you tohave been sufferedby theplaintiff." No objection was made by the appellant to the giving of this instruction. The basic issue to be determined by thejury in thiscasewas thedegree of negligence, if any,

on the part of the drivers of both vehicles. Under instructionno. 18, it

### becomes appropriate toinstruct that if 

### the driver of the car inwhich appellant was riding was under the influence of alcohol or narcotic drugs while driving, then it 

### should be considered as negligence as a matter of law. Reading thetwo instructions together, it 

### is 

### clear that no. 18 clarifies no. 13and it 

### becomes a proper instructionon thelawof thecase. In the instant case, evidence indicated Shaw consumed atleastone beer prior to the accident. Several beer cans and bottleswere found inthe vehicle, alsoan officer found drug paraphernalia in Shawls vehicle. Sufficient evidence indicates that Shaw could have been driving under theinfluence. We hold the trialcourt properly instructed the jury on thismatter. Appellant contends the court erred by failing to provide a jury instruction regarding not imputing the negligence of Shaw to appellant. Absent a showing of joint enterprise the negligence of a driver of a vehicle cannot be imputed toa passenger. We find no error occurred in the omission of giving appellant's instruction. No comparative negligence theory in this case implied that plaintiff acted negligently to cause her injuries. The courtmerely instructed thejury to decide if the acts of the respondents were the proximate

cause of the accident. Because the jury did not consider appellant's negligence, if any, in the determination of respondents' negligence, then this instruction became unnecessary. Appellant next argues the court erred in denying her motion in limine to exclude evidence of the drug paraphernalia found in Shaw's vehicle. She asserts its prejudicial effect outweighs the probative value of this evidence. Wedisagree. In the instant case, the prejudicial effect of the evidence did not outweigh 

### its probative value. While both Shaw and appellant testified that they did not smoke any marijuana on the day of the accident, they did admit smoking it previous to that day. Evidence also indicated Shaw had owned the vehicle for a short 

### time prior to the accident. Because the paraphernalia was found in the vehicle, that would tend to show Shaw was actively consuming controlled substances within a few days of the accident. The evidenceof drug paraphernalia possibly impeaches appellant's and Shaw's testimony and supports the theory that Shaw's negligence caused the accident. We thereforehold the trial courtproperly denied themotion inlimine. Appellant finallycontends thejury rendered a verdict contrary to the law and the facts. She contends the evidence clearlydemonstrates respondent acted negligently. We disagree. In reviewing the sufficiency of the evidence 

### we "review the evidence in a light most favorable to the prevailing party. We will reverse only where there is 

### a lack of substantial evidence to support theverdict." "If there 

### is conflicting evidence in the record, the credibility and weight given to such conflicting evidence is the province of the jury and not this court." Anderson v. Jacqueth (Mont. 1983), 668 P.2d 1063, 1064, 40 St.Rep. 1451, 1453, citingGunnels v. Hoyt (Mont. 1981), 633P.2d 1187, 38 St.Rep. 1492. Evidence at trial indicates respondent's vehicle was traveling between sixty-five and ninety 

### miles per hour. Evidence also indicated Shaw pulled out in front of an emergency vehicle with 

### its siren blaring and 

### its lights flashing. Shaw admitted consuming some alcohol, and several beer cans and bottles and drug paraphernalia were found in hisvehicle. Clearlysufficientevidence existed tosupport the jury's verdict. We hold the jury had substantial evidence tojustify the verdict. The verdict is hereby affirmed.We

### concur: 

## 744 

# 4. &ud Chief

### ust tic&

Justices

### I

### would reverse and remand for a new trialholding that it was error to permit the investigating officer to give opinion testimonyregardingthe causeof thisaccident. This Court has been liberal in allowing law enforcement officers to testify about the causeofanaccident. The time has come to reeval-uateourevidentiaryposition. Some law enforcement officers have, through training, acquired some knowledge which may allow them to properly testify as expert witnesses on matters of accident reconstruction. However, the training of these officers should be confined to those areas where they do have some expertise. For instance, an officermay be able to estimate speed from skid marks. Likewise,an officermay he able to determine a point of impact fromgouge marks and debris. On the other hand, there is no basis for an officer testifying that the cause of an accident was failure to yield the right-of-waybecause alcoholicbeverageswere consumed. This type of opinion testimony is totally lacking in foundation. The officer is in no better position to draw such a conclusion than are individual jurors. 'Wewould not allow the officer's opinion reflected in the issuance of a ticket for traffic violation, to be admitted into evidence. Likewise the officer's oral testimony about his opinion regarding law violations should not receive our judicial blessing. The admission of the officer's testimony in this case exceeds even the precedent previously set by this Court. I 

### believe the time has come to rein in the testimony of law enforcement officers and properly confine that testimony to those areas where the officer actually has some expertise apart from that held by ourpeople generally. Therefore, I 

### would reverse and remand 

### for

### a

### new trial.

C

L 

### Iconcurwith JusticeMorrison.

sfice 

# QL

# e,~

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