No. 83-344 

IN THE SUPREME COURT OF THE STATE OF MONTLNA 

19 84 

DIANE KAY FEELEY FOREMAN, 

Plaintiff and Appellant, 

MICHAEL LEE MINNIE, YELLOWSTONE 

COUNTY, MONTANA and BOB SMITH 

LINCOLN-MERCURY, INC., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph P. Hennessey, Billings, Montana 

For Respondents: 

Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, 

Montana 

Submitted on Briefs: May 31, 1984 

Decided: Xugust 9, 1984 
fir. 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 

in which appellant rode as a passenger. We affirm. 

On March 15, 1977, appellant (then age 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 at a 

local bar. Be then drove up to the "Rimrocks" to "park," 

drink beer and listen to music. 

About 8:30 p.m. they started to return to Billings. 

Around the same time, a severe accident occurred on the west 

side of Billings. The sheriff's office dispatched deputies 

Michael Lee Minnie and Charles Maxwell to investigate and 

assist at the accident scene. They drove their patrol cars 

out of Billings, with sirens blaring and emergency lights 

flashing, in a westerly direction on Route 3 parallel to the 

"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 a mile ahead of Maxwell. 

Shaw drove his vehicle from 23rd Street and turned out 

in front of respondent onto Route 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 any marijuana 

on the date of the accident. 

Just prior 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 court err in denying appellant's motion in 
limine to preclude the admission into evidence of the drug 

paraphernalia found in the 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 cause of 

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 also questions Deputy 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 

qualifications to testify as expert witnesses for automobile 

accidents and permitted them to testify 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), 165 Mont. 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 in the 

accident investigation. That combined with his experience 
clearly qualifies him as an expert. 

Appellant contends Maxwell stated the legal cause of 

the accident in his testimony which was inadmissible. 

Maxwell made the following statements in his 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. 

"THE COURT: Overruled. You may answer. 

"A. Yes. 

What is that opinion? 

"A. I believe that he just failed to 

yield the right of way because of, I 

believe, alcoholic beverages. 

"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 

of his vehicle? 

"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 a proper question. 

"THE COURT: The objection is overruled. 

You may answer. 

"Q. What is that opinion? 

"A. I believe that he was driving in a 

correct and legal manner, 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 facts underlining the 

expert opinion. Therefore, the weight of the testimony 

remains with the jury and the testimony was properly 
admitted . 

Appellant also contends that the expert testimony was 

unnecessary because the cause of the accident was 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 in the dissent in Ployhar, supra: 

"This Court has long held that expert 

testimony should be admitted whenever the 

issue before the jury concerns a subject 

of such a nature that the average person 

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, 

(Harrison J. dissenting). 

We hold in the instant case that the trial court 

properly determined the subject matter required expert 

testimony so as to assist the jury 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 the fol.lowing jury instruction: 

"You are instructed that Montana Statutes 

provide that it is unlawful for any 

person who is under the influence of 

alcohol or a narcotic drug to drive or be 

in actual physical control of a motor 
vehicle upon the highways of this state." 

Appellant argues that insufficient evidence came into the 

trial to warrant the giving of this instruction. We 

disagree. 

Court's instruction no. 13 which instructs that it is 

unlawful to drive a motor vehicle while under the influence 

of alcohol or narcotics, should be read along with court's 

instruction no. 18: 

"If you find from the evidence that a 

person in this accident conducted himself 

in violation of any statute, you are 

instructed that such conduct was 

negligence as a matter 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 to an injury found by you 

to have been suffered by the plaintiff." 

No objection was made by the appellant to the giving 

of this instruction. The basic issue to be determined by 

the jury in this case was the degree of negligence, if any, 

on the part of the drivers of both vehicles. Under 

instruction no. 18, it becomes appropriate to instruct that 

if the driver of the car in which 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 the two instructions together, it is 

clear that no. 18 clarifies no. 13 and it becomes a proper 

instruction on the law of the case. 

In the instant case, evidence indicated Shaw consumed 

at least one beer prior to the accident. Several beer cans 

and bottles were found in the vehicle, also an officer found 

drug paraphernalia in Shawls vehicle. Sufficient evidence 

indicates that Shaw could have been driving under the 
influence. We hold the trial court properly instructed the 

jury on this matter. 

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 to a 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 court merely instructed the jury 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. We disagree. 

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 evidence 
of drug paraphernalia possibly impeaches appellant's and 

Shaw's testimony and supports the theory that Shaw's 

negligence caused the accident. We therefore hold the trial 

court properly denied the motion in limine. 

Appellant finally contends the jury rendered a verdict 

contrary to the law and the facts. She contends the 

evidence clearly demonstrates 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 the verdict." 

"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, citing Gunnels v. Hoyt (Mont. 1981), 633 P.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 

his vehicle. Clearly sufficient evidence existed to support 

the jury's verdict. We hold the jury had substantial 

evidence to justify the verdict. 

The verdict is hereby affirmed. 
We concur: 

744 4. &ud 

Chief ust tic& 

Justices 
I would reverse and remand for a new trial holding that 

it was error to permit the investigating officer to give 

opinion testimony regarding the cause of this accident. 

This Court has been liberal in allowing law enforcement 

officers to testify about the cause of an accident. The time 

has come to reeval-uate our evidentiary position. 

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 officer may be able to estimate 

speed from skid marks. Likewise, an officer may he able to 

determine a point of impact from gouge 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-way because alcoholic beverages were 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. 'We would 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 our people generally. Therefore, I 

would reverse and remand for a new trial. C 

L I concur with Justice Morrison. 

QL sf ice e,~ 

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