No. 12243 

IM THE SUPREME COURT OF THE STATE OF MONTAEA 

1972 

MARILYN J. DP,WE, 

Plaintiff and Appellant, 

R. REX DALLEY, and the MONTANA HIGH SCHOOL 

ASSOCIATION, a corpora tion, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hughes, Bennett and Alan F. Cain, Helena, Montana. 

George T. Bennett argued, l?elena, Montana. 

Kli-ne and Niklas, Helena, Montana. 

John R. Kline argued, Helena, Montana. 

For Respondents: 

Gough, Booth, Shanahan and Johnson, Helena, Montana. 

Ward A. Shanahan and Ronald F. Waterman argued, 

Helena, Montana. 

Submitted: October 26, 1972 

Dec i-ded : DEC 2 6 1% 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal by the plaintiff, Marilyn J. Dawe, 

from an adverse jury verdict rendered in the district court of 

Lewis and Clark County. 

The basis of Mrs. Dawe's claim for relief was an automobile accident, which occurred on February 27, 1970. The location of the accident was on the south or descending side of 

Boulder Hill on Highway 91 in Jefferson County. Both parties 

were traveling to Butte, Montana on the day of the accident and 

the road was icy and snowpacked. The Dalley vehicle first came 

upon the Dawe vehicle on the north or ascending side of the hill. 

Following the Dawe vehicle for approximately three-fourths of a 

mile Dalley was able to see that Mr. Dawe was having difficulty 

negotiating the hill. The car would slow down, then speed up 

again and was fishtailing. Dalley passed the Dawe vehicle but he 

had to stop at the top of the hill to clear a windshield wiper. 

At this point the Dawe vehicle passed the Dalley vehicle and both 

proceeded down the hill. Dalley was again able to determine 

that Dawe was having trouble controlling his car. Both drivers 

testified that they were traveling no faster than 15 miles per 

hour with Dalley testifying that he was trying to keep between 

50 to 75 feet behind the Dawe vehicle. Upon reaching a sharp 

righthand curve the Dawe vehicle went out of control with the 

front wheels colliding with the snow bank on the right side of 

the road first and the rear end of the car sliding around to 

hit the bank. At this point Dalley first tried to turn to the 

left to go around the car but was unable to do so because of 

oncoming traffic. Dalley then applied the brakes and slid into 

the Dawe vehicle. It is this impact that Mrs. Dawe contends 

caused her injuries. The physical damage to each car was slight 
as they were both able to leave the scene of the accident under 

their own power. 

There are three issues in this case for our consideration. 

The first is whether it was proper for the trial court to instruct 

the jury on "sudden emergency". 

In considering this issue we must determine if this was 

a proper case for the use of the Usudden emergency" instruction. 

Instruction No. 17 given by the trial court was as follows: 

"A sudden emergency exists when the driver of a motor 

vehicle is suddenly placed in a position of imminent 

peril, great mental stress, or danger, which situation 

has not been brought about by his own negligence, but 

in which instant action is necessary to avoid a 

threatened danger. But the driver must use that care 

which the ordinary prudent person would exercise under 

like or similar circumstances. One suddenly confronted with a peril through no fault of his own, 

who in attempting to escape does not choose the best 

or safest way should not be held negligent because 

of such choice, unless it was so hazardous that an 

ordinary prudent person would not have made (it) 

under similar circumstances." 

On reviewing such an instruction we must determine whether 

it was error in light of the evidence contained in the record 

which supports the instruction. "The instruction must be taken 

in connection with the evidence bearing on the matter referred 

to * * *." Burns v. United States, 274 U.S. 328, 331, 71 L.Ed 

1077, 47 S.Ct. 650. The other requirement is that a party is 

entitled to an instruction on its theory of the case and in 

Gran v. Dasovic, 275 Minn. 415, 147 N.W.2d 576, 579, it is stated: 

"We are also of the opinion that the court did 

not err in instructing the jury with reference to 

the emergency doctrine. An instruction on this 

theory should also be given where it is consistent 

with the theory of one of the parties to the action 

and where the evidence submitted by such party would 

sustain a finding that he had been confronted with 

a sudden peril or emergency and acted under its 

stress. " 

The record in this case amply supports the instruction on both 

grounds. Dalley was following a car at a safe distance for the 
speed his car was traveling. The Dawe vehicle suddenly went out 

of control causing Dalley to take emergency action. Also the 

record clearly shows this was the theory of the defense in the 

trial. Following our own Montana rule as stated in Peabody v. 

Northern Pacific Ry. Co., 80 Mont. 492, 498, 261 P. 261, on the 

giving of the sudden emergency instruction, it should have been 

given ; 

"If the evidence in this case were sufficient 

to warrant a reasonable conclusion that at the 

time in question the defendant Siege1 was confronted with a 'sudden emergency,' or that 'there 

was want of time in which to form a judgment,' 

under the circumstances, as they appeared to 

him, the court should have given the offered 

instruction." Emphasis supplied. 

The second issue is whether the court should have allowed a 

pharmacist to testify regarding the effects of taking a pain 

killing drug by the plaintiff. 

During the trial of the cause the defense used the testimony of a local pharmacist. The purpose of the testimony was 

to have an expert opinion on the dffect to a person of taking a 

particular pain killing drug. This expert testimony was objected to by Mrs. Dawe's attorney on the ground that a pharmacist 

was not a qualified expert to give such an opinion. 

It appeared that Mrs. Dawe suffered from back pain prior 

to the accident and she testified that she occasionally took 

Darvon 65 to relieve pain prior to February 27, 1970. It further 

appeared that Mrs. Dawe received a prescription on January 12, 

1970 for 100 capsules of Darvon 65 and these had been mostly used 

up so on the day of the accident the prescription had been refilled. Medical testimony indicated Darvon 65 was a pain killer 

with greater strength than aspirin but less than codine. 

The pharmacist called by the defense testified as to his 

general background which included working for Eli Lilly and 
Company, the manufacturers of Darvon 65, and he was asked about 

the normal dosage of the drug and testified that the average 

dosage was one capsule three or four times daily, which would be 

every six to eight hours. Mrs. Dawe's prescription was for 

Darvon once every three hours, or twice the average dosage. 

Plaintiff claims that as a result of this testimony concerning the effects of taking an overdose of the pain killing 

drug prescribed for her prior to the time of the accident the 

defense was allowed to argue to the jury that Mrs. Dawe's injuries were the result of that overdose. However, in our reading of the transcript, it becomes apparent the damaging testimony 

was brought out by plaintiff on cross-examination. She cannot 

now come in and complain of this when the adverse result was of 

her own making. In a Montana case, Hogan v. Shuart, 11 Mont. 

498, 504, 28 P. 969, where the party insisted the witness answer 

the question and then claimed error because he did so, this Court 

held : 

"We are unable to see any reason for complaint 

upon the part of the appellants, because they 

insisted upon their right to have the question 

propounded, and the answer is responsive to the 

same. " 

We find no error here. 

The last issue concerns the alleged misconduct of defendants' counsel. 

During the course of the trial the plaintiff wished to 

use the deposition of Dr. Swenson of Salt Lake City, Utah. 

Shanahan, counsel for Dalley, noted that there existed "no reason * * * right now for offering it except as a grandstand." Further during cross-examination of plaintiff's expert witness by 

Shanahan it was brought out that the witness and plaintiff's 

counsel had worked together on the sales tax proposal. Both of 
these instances are charged by plaintiff as being misconduct 

on the part of defendants' attorney. 

We do not agree with the contention that the actions of 

defendants' counsel at the time of offering of the deposition 

or in the cross-examination of plaintiff's witness are of a 

character to constitute miscon requiring a new 

The judgment is affirme