No. 83-390 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

CHARLES E. LINDBERG, et al., 

Plaintiffs and Appellants, 

LEATHAb1 BROTHERS, INC. , a 

Utah Corporation and THE 

STATE OF MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Whalen & Whalen; Timothy J. Whalen argued, Billings, 

Montana 

For Respondents: 

McNamer, Thompson & Cashmore; William 8. PlcNamer argued, 

Billings, Montana 

Allen B. Chronister, Asst. Attorney General argued, 

Belena, Montana 

Filed: 

Submitted: October 31, 1984 

Decided : January 4, 1985 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is a wrongful death and survivorship case brought 

by plaintiffs against the above-named defendants in the 

District Court, Thirteenth Judicial District, Yellowstone 

C~unty. A jury returned a verdict for the defendants and 

judgment was entered thereon; plajntiffs appeal and we 

affirm. 

This action arises from a car-truck accident on June 30, 

1980, at approximately 10:50 p.m., in which a head-on 

collision occurred between the car driven by Patricia A. 

Lindherg and a trailer truck driven by David Toland of 

Leatham Brothers, Inc. (Leatham) . The Lindberg vehicle was 

traveling north on U.S. Highway 87 and the Leatham truck was 

traveling south at the time the vehicles met on the Pass 

Creek Bridge south of Wyola, Montana. Mrs. Lindberg was 

killed in the collision. 

The existing roal! conditions were described by Janet 

Elwell who was driving behind the Lindberg vehicle prior to 

the collision. Rain had diminished to a light sprinkle. The 

road was shiny and reflective, reducing visibility. 

Centerlines and side stripes were poorly marked on the road 

making it diffjcult to see the two-lane highway. The road 

surface was rough. The zebra-striped reflective bridge 

marker was missing on the corner where the Lindberg car 

approached the Pass Creek Bridge. 

The driver of the truck, Toland, testified to the 

circumstances immediately preceding the fatal accident. The 

headlights of the Lindberg car were raised from low beam to 

high beam at approximately 150 yards from his truck. Toland 
turned the truck lights on bright. and back to dim to indicate 

the truck's lights were set on low beam. Toland testified 

that the Lindberg vehicle swerved into his lane, immediately 

before impact. 

There is conflicting testimony regarding the point of 

impact and the position of either vehicle. Testimony of the 

investigating patrolman, Officer Lee Graves, indicated the 

Lindberg car crossed the centerline and drove into the 

Leatham truck. Appellants' expert witness, F. Denman Lee, a 

physicist, reconstructed the accident and presented testimony 

that the collision occurred in the northbound lane. 

Dr. Tranel, a clinical psychologist from Billings, 

Montana, testified as to the visual and perceptual field 

available to the decedent just before the colli.sion. Dr. 

Tranel opined that perceptual distortion immediately prior to 

the accident triggered an irrational or panic response by 

Mrs. Lindberg causing her to swerve her car to correct the 

visual aberration, thus proximately causing her death. The 

court refused to hear Dr. Tranel's testimony as to what 

caused perceptual distortion. 

Appellants contend that defense counsel's lack of 

cooperation during discovery stage caused undue delay which 

denied appellants a fair trial. Guaranty National Insurance 

Co. insured both Leatham and Patricia A. Lindberg. Separate 

counsel was hired by Guaranty Natj-onal to represent each 

insured when T,eatham filed a counterclaim seeking damages 

against Lindberg. When Patricia Lindberg's present counsel 

attempted to discover facts from Guaranty National, her 

insurer, counsel for Lindberg hired by Guaranty National djd 

not release information from its investigation file until 

respondent Leatham had determined its position. Driver 
Toland's 7oq hook was never provided, even though highway 

patrolman Lee Graves said he either gave it to the truck 

driver or put it back in the truck after he finished 

reviewing it. Photographs taken on behalf of the decedent, 

and in the possession of insurance adjuster Sid Griffin, were 

mad-e available to the appellants only after extended delay. 

Appell-ants raise these issues on appeal: 

(1) Did the District Court commit error in excluding 

the expert testimony of Dr. Tranel regarding the causes of 

perceptual distortion encountered by Patricia A. Lindberg 

immediately before her death? 

(2) Did an abuse of the discovery process by respondent 

Leatham and Guaranty National Insurance Company prejudice 

appellants' discovery of relevant facts and evidence prior to 

trial and deny appellants a fair trial? 

(3) Did the District Court err in excluding from 

evidence appellants' offered exhibit nos. 133, 134, 137 and 

138? 

(4) Did the District Court commit error in excluding 

exhibit nos. 117, 118, 119, 120, 121 and 122 from the jury 

room during del iherations, even though the exhj bits were 

received into evidence at the time of trial? 

(5 Did the District Court err in excluding from 

evidence appellants' offered exhibit nos. 160 and 161, when 

the defendant, State of Montana, had admitted the genuineness 

of the exhibits and a foundation had been laid to introduce 

the exhibits into evidence? 

(6) Did the District Court err in excluding appellants' 

offered exhibit no. 123, though the exhibit had been used by 

their accident reconstruction expert witness and truck driver 

Toland admitted his signature was on the document? 
(7 DjC! the District Court commit error when it 

disallowed testimony from defendant and witness Toland as to 

whether U.S. Department of Transportion Regulation No. 

391-21 (10) had been complied with in hiring truck driver 

Toland, and in refusing to allow the jury to hear evidence 

with regard to the integrity of driver Toland both as a 

Person and a professional truck driver? 

(8) Did the District Court commit error when it refused 

to allow testimony from Charles E. Lindberq, a truck driver 

with 23 years experience, as to appropriate use of lights 

under the circumstances that prevailed when the Leatham 

vehicle collided with the Lindberg vehicle? 

(9) Did the District Court err in excluding from 

evidence appellants' exhibit nos. 149 through 152, 

photographs of the roadway where the accident occurred, taken 

by Charles E. JJindberg1s son a few months after the accident? 

(10) Did the District Court err in excluding exhibj t 

nos. 154 and 155, photoaraphs depicting Patricia A. Lindberg, 

deceased, and the appellant Paul Gerard Teaford, neither of 

whom were able to be present at the time of trial.? 

611) Did the District Court commit error by allowing 

Jack Leatham, part owner of Leatham Brothers to submit 

testimony regarding an inspection of the condition of the 

headlights on the Leatham truck in January 1980? 

(12) Did the District Court unfairly prejudice 

appellants' case by revealing bias against appel-lantsr expert 

witnesses and by commenting upon the evidence offered by 

appellants, implying the judge's opinion as to the weight 

such evidence merited? 

(13) Did the District Court commit reversible error by 

refusing to give appellants' offered instruction no. 11? 
(14) Did the District Court commit error in si~ring 

instruction no. 19, the State of Montana's offered 

instruction no. 16? 

(15) Did the District Court commit error in granting 

the respondents' joint motion for a directed verdict aqainst 

appellants on the claim for damages under what has heretofore 

been known as a survival cause of action? 

(16) Did the District Court commit error by not 

allowing the jury to take an evening recess before 

deliberating and consjdering their verdict and. thus deny 

appellants a fair trial? 

We note that appellants presented two separate theories 

of liability in this case. The first theory imposes 

liability on the State of Montana for failing to keep Highway 

37 in proper repair and for negligently allowing unsafe 

conditions to exist at the time of the accident. These 

unsafe conditions included a bumpy and narrow roadway, poorly 

marked centerline and sideline, and no zebra-striped warning 

marker attached to the Pass Creek bridge. Appellants argue 

that these conditions alone or coupled with the improper 

light-dimming sequence of the driver, Toland, caused a 

perceptual distortion which in turn caused an irrational 

panic response. The manifestation of this irrational panic 

response experienced by Mrs. Lindberg was her swerving into 

the wrong lane and into the path of the Leatham truck. 

The second theory advanced by appellants is that the 

accident occurred in the northbound lane where the Lindberg 

vehicle was properly proceeding. The Leatham truck 

negligently crossed the centerline of the highway and 

collided with the Lindberg vehicle. 
Respondents' theory is that the Lin$.berg vehicle swerved 

across the centerline into the southbound lane and collided 

with the truck. 

I. DID THE DISTRICT COURT COMMIT ERROR IN EXCLUDING THE 

TESTIMONY OF DR. TRANEI; REGARDING THE CAUSES OF PERCEPTUAL 

DTSTORTION ENCOUNTERED BY PATRICIA A. LINDRERG IMMEDIATELY 

BEFORE HER DEATH? 

This issue presents the question of the scope of expert 

testimony and the trial court's role in regul-ating it. Art. 

VII, M.R.Evid., deals with opinion and expert testimony. 

Rule 702, provides: 

"If scientific, technical, or other specialized 

knowledae 2 will. assist - the trier --- of fact to 

understand the evidence or to determine a fact in 

issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or 

education may testify thereto in the form of an 

opinion or otherwise." (Emphasis added.) 

The facts of each case and the substance of the expert 

testimony offered must be considered on a case-by-case basis 

by the trial court to determine if the testimony falls within 

the rule. The proposed opinions offered by Dr. Tranel sought 

to establish that the perception of Mrs. Lindberg was so 

distorted because of the conditions created by defendants 

that a col.l.ison was very likely. The conditions caused the 

distortion and. the distortion caused the accident. Dr. 

Tranel was going to supply the element of causation to 

appellants' case. 

Appellants rely heavily on State v. Chapple (Ariz. 

1983), 660 P.2d 1208, for the proposition that it is an abuse 

of discretion for the trial judge to exclude expert testimony 

that could possibly aid the jury in understanding a fact in 

issue. 
Appellants seek to broaden the law set forth in Chapple. 

The Arizona Supreme Court generally adhered to the criteria 

set forth in United States v. Amaral (9th cir. 1.9731, 488 

F.2d 1148. Amaral and Chapple set forth factors we believe 

are useful in determining the admissibility of expert 

testimony. The Amaral factors are: (1) qualified expert; 

(2) proper subject; (3) conformity to generally accepted 

explanatory theory; and (4) probative value compared to 

prejudicial effect. 

The testimony offered in Chapple regarded the factors 

involved in assessing the reliability of the eyewitness 

testimony. No opinion was rendered regarding the ultimate 

credibility of specific witnesses. Chapple, 660 P.2d at 

1222. Dr. Tranel was allowed to testify to fa.ctors involving 

perceptional distortion. He was not allowed to testify to 

how these factors affected Mrs. Lindberg's mental processes 

even a.s the expert in Chapple could not testify that the 

existence of an identification factor made a particular 

witnesses perception or memory faulty. Chapple was also 

limited to its facts on this issue. Chapple, 660 P.2d at 

1224. 

We hold the trial court. acted within its discretion in 

limiting the testimony of Dr. Tranel. 

1. DID AN ABUSE OF DISCOVERY PROCESS EY RESPONDENT 

LEATHAM AND GUARANTY NATIONAL INSURANCE COMPANY PREJUDICE 

APPELLANTS' DISCOVERY OF RELEVANT FACTS AND EVIDENCE PRIOR TO 

TRIAL AND DENY APPELLANTS A FAIR TRIAL? 

Appellants argue that discovery abuses prevented them 

from obtaininq a fair trial. In Massaro v. nunham (1979), 

184 Mont. 400, 603 P.2d 249, we discussed discovery abuse. 

That case involved a divorce action where various attempts to 
discover information concerning child support payments and to 

require production of documents related thereto were ignored 

by opposi.ng counsel.. We set forth some general propositions 

that govern: 

"The District Court has the inherent discretionary 

power to control discovery. That power is based on 

the District Court's authority to control trial 

administration. See, State v. Mecca Twin Theater & 

Film Exchange, Inc. (1973), 82 Wash.2d 87, 507 P.2d 

1165, 1167. In controllinq discovery, the District 

Court must regulate traffic to insure a fair trial 

to all concerned, neither according one party an 

unfair advantage nor placing the other party at a 

disadvantage. State v. Boehme (196?) , 71 Wash.2d 

621, 430 P.2d 527, 534. 

"We will reverse the District Court only when its 

judgment may materially affect the substantial 

rights of the appellant and allow the possibility 

of a miscarriage of justice. Wolfe v. Northern 

Pacific Railway Co. (1966), 147 Mont. 29, 41, 409 

P.2d 528, 534. We find such a situation here. 

"The purpose of discovery is to promote the 

ascertainment of truth and the ultimate disposition 

of the lawsuit in accordance therewith. Discovery 

fulfills this purpose by assuring the mutual 

knowledge of al.1 relevant facts gathered by both 

parties which are essential to proper litigation. 

gickman v. Taylor (1947), 323 U.S. 495, 507, 67 

S.Ct. 385, 392, 91 L.Ed. 451, 460." 180 Mont. at 

404, 405, 603 P.2d at 251, 252. 

Appellants compl-ain that certain accident reports 

prepared by Guaranty on behalf of Leatham were not produced. 

The reports were prepared in anticipation of litigation. The 

District Court ruled that appellants did not demonstrate a 

substantial need for the investigative reports to require 

production pursuant to Rule 26(b), M.R.Civ.P. The appellants 

offer no substantive reasons why the reports in question 

should have been turned over to them; they only complain that 

respondents never applied for a protective order. The 

District Court properly denied relief to Lindberg. 
This ruling was made on September 1, 1982, 8 1./2 months 

before trial commenced. Appellants' presentation at trial 

was not prejudiced by this delay. 

Appellants claim they were prejudiced by the fact that 

they were denied certain photos taken by insurance adjuster, 

Sid Griffin before the April 6, 1984 deposition of expert, 

Dr. F. Denham Lee. Appellants do not move at trial to limit 

inquiry or exclude the use of Dr. Lee's first deposition for 

impeachment. Appellants does not identify these crucial. 

photos by exhibit number here on appeal nor point out how 

they were crucial to Dr. Lee's change in position. Dr. Lee 

testified he did a lot more work after his initial 

deposition. He viewed 80 additional photos before changing 

his position. He had an opportunity to explain his change 

from the swerve theory to the theory that the Leatham truck 

crossed the centerline. Even if the seven so-called Sid 

Griffin photos were wrongfully withheld from appellants their 

omission does not amount to reversible error. 

111. WHETHER THE DISTRICT COURT ERRED IN EXCLUDING FROM 

FVIOENCE APPELLANTS' OFFERED EXHIEIT KOS. 133, 134, 137, 138. 

The exhibits are photographs measuring approximatel-y ? 

1/2 inches square taken by the county coroner. Each one 

depicts a separate piece of decedent's body lying on the road 

after the collision. Respondents contend the trial court 

properly excluded the photographs because due to their 

gruesome nature they were inflammatory and hence their 

probative value was outweighed by their prejudicial effect. 

Appellants contend the photographs showed a path of 

debris that allowed Dr. Lee to reconstruct the accident. The 

photographs supported and lent credibility to Dr. Lee's 

analysis and tended to disparage Patrolman Grave's version. 
The law regarding photographs is easy to state but 

sometimes difficult to apply. If the trial court determines 

the probative value outweighs the prejudical effect, the 

photographs should be admitted. State v. Hoffman (Mont. 

1982), 639 P.2d 507, 309 St.Rep. 29; State v. 0'Donnell 

(1972), 159 Mont. 138, 496 P.2d 299. 

Given the gruesome nature of the photographs, their 

quality and size, the lack of background detail, and wealth 

of other photographs and information available to Dr. Lee the 

trial court did not abuse its discretion by excluding this 

evidence. 

IV. DID THE DISTRICT COURT COb3"IIT ERROR IN EXCJAITDING 

EXHIBIT NOS. 117, 118, 119, 120, 121, AND 122 FROM THE JURY 

ROOM DURING DELIBERATION? 

The above-mentioned exhibits, a map and models which 

aided Dr. Lee in explaining his theory, were admitted into 

evidence. Jt was stipulated that the evidence is 

demonstrative in nature. Appellants argue that this evidence 

was intended to go to the jury room during deliberation from 

the time it was admitted. 

Respondents urge that no objection to the admission of 

this evidence was made on the condition that it would not go 

to the jury room. The trial court did not affirmatively rule 

on whether these exhibits could be used by the jury during 

deliberations. 

The jury had the opportunity to view the evidence. The 

exclusion from the jury room of these exhibits did not 

material]-y prejudice the appellants' case. 

v. DID THE DISTRICT COURT ERR IN EXCLUDING FROM 

EVIDENCE LINDBERG'S OFFERED EXHIBIT NOS. 160 AND 161, WHERE 

THE DEFENDANT, HIGHWAY DEPARTMENT, HAD ADMITTED THE 
GENUINENESS OF THE EXHIBITS AND FOUNDATION HAD EEEN LAID TO 

INTRODUCE THE EXHIBITS JNTO EVIDENCE? 

Fxhibit nos. 160 and 161 are internal Highway Department 

memoranda that contain evaluations of specific stretches of 

road within the state. The memoranda include an eva-luation 

of the segment of road where this collision occurred. These 

documents were drafted to assist the Monta.na Highway 

Department in planning a.nd budgeting road. repair, improvement 

and replacement. Exhibit no. 161 shows a computer print-out 

that summarizes road conditions over a 5.3 mile stretch of 

road which includes the col-lision site. 

Don Opitz, a state employee, testifying at trial 

explained the documents and laid a foundation for their 

admission. The District Court excluded exhibit nos. 160 and 

161. after lengthy discussion in chamhers with counsel. 

The State contends the excluded exhibits were 

irrelevant, confusing, prejudicial and erroneous. Appellants 

contend the exhihits tend to prove the condition of the 

roadway which contributed to the zccident. 

Rules 401, 402 and 403, M.R.Evid., provide the general 

framework in which this issue must be resolved. These rules 

state: 

"Rule -- 401. Relevant evidence means evidence having 

any tendency to make the existence of any fact that 

is of consequence to the determination of the 

action more probable or less probable than it would 

he without the evidence. Relevant evidence ma.y 

include evidence bearing upon the credibility of a 

witness or hearsay declarant." 

"Rule -- 402. All releva.nt evidence is admissible, 

except as otherwise provided by constitution, 

statute, these rules, or other rules applicable in 

the courts of this state. Evidence which is not 

relevant is not admissible." 

"Rule -- 403. Although relevant, evidence may be 

excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, 
confusion of the issues, or misleading the jury, or 

by consi.derations of undue delay, waste of time, or 

needless presentation of cumulative evidence." 

These exhibi-ts are relevant. They tend to show the 

general condition of the highway which was a material issue 

in the appel-lants' case against the State of Montana. The 

argument of the Highway Department th3.t the printouts were 

too prejudicial or confusing is without merit. The Hi9hwa.y 

Department was afforded ample opportunity to present the 

factual evidence expl-aining the reports to the jury in 

cross-examination of sta.te employee Opitz and. in final 

argument. The view that the jury would be misled and would. 

not take into account the photographs of the road and other 

evidence or be able to sort out the d.ifferent theories of the 

case is very paternalistic and shows a lack of confidence in 

the intelligence and common sense of the average juror. 

The trial court erred by not admitting this evidence. 

However, given all of the evidence admitted concerning the 

road conditions, the error did not material]-y prejudice 

appellants' case and i.s harmless. 

VI. DID THE DISTRICT COURT ERR IN EXCLUDJNG LINDBERG'S 

OFFERED EXHIBIT NO. 123, EVEN THOUGH THE EXHIBTT HAD BEEN 

USED BY THEIR ACCIDENT RECONSTRUCTION EXPERT WITNESS AND 

TRUCK DRIVER TOLAND ADMITTED HIS SIGNATURE APPEARED ON THE 

DOCUMENT ? 

Exhibit no. 123 is a receipt or bill of lading which was 

signed. by driver Toland when he picked up his load before he 

left Seeley Lake. Appellants argue the document should have 

been admitted because it wa-s used to impeach driver Toland. 

Appellants also assert that the credibility of Dr. Lee was 

damaged by respondent's counsel's assertion that exhibit no. 

123 contained unreliable hearsay. 
Driver Toland was confronted with exhibit no. 123. He 

admitted signing it. Appellants' counsel offered the 

document into evidence. The trial court did not admit it. 

At the time exhibit no. 1-23 was rejected, Toland had not yet 

made the prior inconsistent statement referred to in 

appellants' brief. Jn fact, the inconsistency was elicited 

by respondent's counsel. Appell-ants made no further effort 

to use exhibit no. 123 to impeach Toland or attempt to have 

it admitted as evidence. We find no error. 

T7II. DID THE DISTRICT COURT COMMIT REVERSIBLE: ERROR 

WHEN IT DISALLOWED THE TESTIMONY FROM WITNESSES LEATHAM AND 

TOLAND AS TO WHETHER US. DEPARTMENT OF TRAP~SPORTATION 

REGULATTON NO. 391-21 (10) , HAD BEEN COMPLIED WTTF IN HIF.ING 

TOLAND AND IN REFUSING TO ALLOW THE JURY TO HEAR EVIDENCE 

WITF REGARD TO THE INTEGRITY OF DRIVER TOLAND BOTH A 

PERSON AND A PROFESSIONAL TRUCK DRIVER? 

The U.S. Department of Transportation Regulation No. 

391-21, requires that the employer submit information 

concerning employees who drive tractor-trailer rigs on the 

highways. The information is basically the same as required 

on most job applications. The information contained in this 

form shows that Toland had been fired from a bus-driving job 

for being late for work. 

This evidence is relevant only to prove a character 

trait of driver Toland, to-wit: He is an irresponsible 

employee. Character evidence of this nature is specifically 

proscribed. See Rule 404, M.R.Evid. 

This evidence has no bearing on truth or veracity. It 

does not tend to prove Toland is untruthful. See Rule 608, 

M.R.Evid. 
Appellants misconstrue what is meant by putting ones 

character into issue. Rule 404 (a) (11, M.R.Evid., 

incorporates the time-honored practice of allowing the 

accused in a criminal case to introduce evidence of his good 

character. The prosecution may then rebut the same. The 

rule has no application in civil cases unless the character 

trait is an essential element of the charge, claim, or 

defense. A character trait of tardiness is not an essential 

element of an action alleging negligent driving. 

VIII. DID THE DISTRICT COURT COMBIT REVERSIBLE ERROR 

WHEN IT REFTJSED TO ALLOW TESTIMONY FROM CHARLES E. LINDBERG, 

A TRUCK DRIVER OF 23 YEARS EXPERIENCE, ON THE APPROPRIATE IJSE 

OF LIGHTS IJNDER THE CIRCUMSTP.NCES THAT PREVAILED WHEN THE 

TRUCKING COMPANY VEHICLE COLLIDED WITH THE LSINDBERG TTEHICLE? 

Appellants argue that the testimony of the decedent's 

husband, and appellant, should have been allowed because it 

would assist the trier of fact in understanding the customs 

and accepted driving practices of over-the-road 

tractor/trailer drivers. Respondents argue that Lindberg was 

not qualifiei!, facts not in evidence were assumed, and that 

the subject matter was within common knowledge of the jury. 

The trial court must exclude expert testimony if the 

subject is one of such common knowledge that men of ordinary 

education could reach a conclusion as intelligently as the 

witness, but if the matter is suffici-ently beyond common 

experience that the opiri.on of the expert would assist the 

trier of fact the court must admit the evidence. State v. 

Howard (1981), 195 Mont. 400, 404, 405, 637 P.2d 15, 17. We 

defer to the discretion of the trial. court in finding no 

error here. 
IX. DID THE DISTRICT COURT ERR IN EXCLUDING EVIDENCE OF 

LINDBERGS' EXHIBIT NOS. 149 THROUGH 153, WHICH ARE 

PHOTOGPAPHS OF THE ROADWAY WHERE THE ACCIDENT OCCURRED, TAKEN 

BY CHARLES E. LINDBERG'S SON A FEW MONTHS AFTER THE ACCIDENT? 

The photos depict the roadway and the scraggy remains of 

a bush off the side of the road. The bush photographed hears 

no resemblance to the way it looked in full bloom on June 30, 

1980. The photograph does not tend to prove, disprove, or 

support any material fact in the case. It only tends to 

prove the location of a bush. The bush is depicted in other 

admissible photos. The evidence is irrelevant and repetitive 

and its exclusion was properly within the discretion of the 

trial court. 

X. DID THE DISTRICT COURT ERR IN EXC1,UDING EXHIBIT NOS. 

154 and 155, PHOTOGRAPHS DEPICTING PATRICIA A. LINDBERG, 

DECEASED, AND AN APPELLANT, PAUL GERARD TEAFORD, NEITHFR OF 

WHOM WERE ABLE TO BE PRESENT AT THE TIME OF TRIAL? 

One exhibit shows a happy and healthy Patricia Lindberg 

with her son and, the other shows her with her class of 

Wyoming school children. The photos were offered to prove 

Mrs. Lindberg was in good health. The photo of decedent and 

her son was taken in 1976 and the class picture in 1973. 

The discretion of the District Court again is the reason 

we find no basis to this claim of error. The District Court, 

as we have said many times, has broad discretion in the 

matter of admitting relevant evidence. 

XI. DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY 

AL1,OWING JACK LEATHAM, PART OWNER OF LEATHAM TO SUBYIT 

TESTIMONY REGARDING AN INSPECTION OF THE CONDITION OF THE 

HEADLIGHTS OF THE LEATHAM TRUCK IN JANUARY 1980? 
Appellants claim the testimony of Jack Leatharn should 

have been stricken because the matters testified to were not 

within his personal knowledge and the testimony was hearsay. 

Leatham testified that the truck involved in the collison was 

inspected and this inspection included the head lights. 

Leatham had no personal knowledge that the headlights on 

this particular truck were inspected. His testimony was 

based on hearsay. By definition, "hearsay is a statement, 

other than one made by the declarant while testifying at 

trial or hearing, offered in evidence to prove the truth - of 

- the matter asserted. If Rule 801 (c) , M.R.Evid. 

Hearsay is inadmissible except as otherwise provided by 

statute, the Montana Rules of Evidence, or other rules 

applicable in the courts of this state. Rule 802, M.R.Evid. 

Leatham did not acquire his knowledge that the truck was 

inspected from personal observation but from a document in 

the company records. An out-of-court statement, the 

document, was made and repeated in court by Leatham to prove 

the truth of the matter asserted, to-wit: that an inspection 

of the lights were made in January 1980. 

Leatham attempted to introduce this document to prove 

his testimony but the matter was dropped when the evidence 

was admitted. This document was itself hearsay but could. 

have been admitted under the "records of regularly conducted 

activity1' exception to the hearsay rule, Rule 803 (6), 

M.R.Evid., if a proper foundation were laid. Since appellant 

did not pursue their objection and acquiesced to the 

admission of Leatham's testimony, we find no reversible 

error. 

XII. DID THE DISTRICT COURT UNFAIRLY PREJUDICE 

LINDBERG'S CASE BY REVEALING TO THE JURY ITS ETAS AGAINST 
LINDBERG'S EXPERT WITNESSES AND BY COMMENTING UPON THE 

EVIDENCE OFFERED BY LINDRERG IMPLYING TTS OPINION AS TO THE 

WEIGHT SUCH EVIDENCE MERITED? 

Appellants contend that the trial court prejudiced the 

jury by its comments to appellants' expert witnesses and 

comments on the evidence. After reviewing the instances 

cited by appellants in their brief and looking at the record 

as a whole, we find no showing of bias that could be imputed 

to the District Court. 

XIIL. DID THE DISTRICT COURT COMMIT REVERSIBLE ERROR BY 

REFUSING TO GIVE LINDRERG'S OFFERED INSTRUCTION NO. 11? 

Appellants' offered instruction nos. 10 and 11 quoted 

federal and state laws which concern the dimming of 

headlights at night on. the highway. The court gave instruction no. 10 but refused to give instruction no. 11. Both 

instructions are related and are set forth: 

"[Instruction no. 10.1 Federal Motor Carrier 

Safety Regulations as prescribed by U. S. Department of Transportation, Federal Highway Administration; Section 392.23, provides: 

"'Sec. 329.32 Upper and lower head-lamp beams. 

During the time when lighted l-am.ps are required, 

every driver shall obey the following: 

" (a) Upper beam. He shall use the upper distribution of light when there is no oncoming vehicle 

within 500 feet: Provided, however, that a lower 

distribution of light may be used when fog, dust, 

or other atmospheric conditions make it desirable 

for reasons of safety, and when within the confines 

of municipalities where there is sufficient light 

to render clearly discernible persons and vehicles 

on the highway at a distance of 500 feet ahead; 

"(b) Lower beam. When within 500 feet of an 

on-coming vehicle, he shall use a distribution of 

light or composite beam so aimed that the glaring 

rays are not projected into the eyes of the 

on-coming driver and such distribution of light 

shall also be used when following another vehicle 

within 500 feet.' 

"If you find David Toland, the driver of the 

Leatham Brothers', Inc. truck violated the above 
section at or about the time of the happening of 

the accident in this case, then such violation may 

be considered by you in determining whether or not 

there was negligence upon the part of the 

defendant, Leatham Brothers, Inc., a Utah 

corporation." 

"[Instruction no. 11.1 Section 61-9-221(1), MCA, 

provides : 

"'61-9-221. Use of multiple beam road lighting 

equipment. Whenever a motor vehicle is being 

operated on a roadway or shoulder adjacent thereto 

during the times specified in 61-9-201, the driver 

shall use a distribution of light, or composite 

beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe 

d.istance in advance of the vehicles, subject to the 

fol.lowing requirements and limitations: 

" (1) Whenever the driver of a vehicle 2pproaches 

an oncoming vehicle within 1,000 feet, such driver 

shall. use a distribution of light or composite beam 

so aimed that the gl-aring rays are not projected 

into the eyes of the oncoming driver. The lowermost distribution of light specified in 61-9-220(2) 

shall be deemed to avoid glare at all times, 

regardless of road contour and loading.' 

"The times specified in Sec. 61-9-201, as applicable to this case, is at any time from one-half hour 

after sunset to one-half hour before sunrise. 

"Secti.on 61-9-220 (2) , Montana Code ~nnotated, 

provides : 

" ' (2) There shall be a lowermost distribution of 

light, or composite beam, so aimed and of sufficient intensity to reveal persons and vehicles at a 

distance of at least 100 feet ahead; and on a 

straight level. of road under any condition of 

loading none of the high-intensity portion of the 

beam shal.1 be directed to strike the eyes of any 

approaching driver.' 

"If you find from the evidence in this case that 

David Toland, the driver of the Leatham Brothers, 

Inc. truck, operated the truck in violation of the 

sections above quoted of the Montana Code, you are 

instructed -- that such conduct was negligence - as - a 

matter -- of law. 

"However, in this action, a viol-ation of law is of 

no consequence unless it was a proximate cause of 

the death of Patricia A. Lind-berg. I' (Empha.sis 

added. ) 

The trial court refused to give instruction no. 11 

because it referred only to driver Toland. 
Appellants point out that the proposed instruction 

mentions that violation of the statute must be a proximate 

cause of Mrs. Lindberg's death. They argue that it was not 

prejudicial to Leatha.m because Leatham never raised the 

contention that the 1igh.t~ on Mrs. Lindberg's car blinded 

Toland and. that this in some way contributed to the 

collision. 

These points are well taken but considering the fact 

that the court gave appell-ants' instruction no. 10, we find 

no reversible error. Instruction no. 10 is a fair statement 

of the law. It sets forth the duty of driver TolanC! with 

regard to dimming his lights. This instructi-on differs from 

instruction no. 11 in that it states a violation of the 

regulation may be considered in determining negligence where 

violation of the Montana statute is declared neal-igence as a 

matter of law by the language of instruction no. 11. It 

would have been preferable for the District Court to instruct 

on the Montana statutes as they pertain to the use of high 

and low beams of headlights at night. However, the 

instruction given is sufficiently consonant with the statutes 

that the jury could not have been misled. Therefore we find 

no error here. 

XIV. WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE 

ERROR IN GIVING INSTRUCTION NO. 19, STATE OF MONTANA'S 

OFFERED INSTRUCTION NO. 16? 

Instruction no. 19 given by the court is quoted in part 

from the language of section 61-8-321, MCA, and reads as 

follows: 

"You are instructed that Montana law requires as 

follows: 'Upon all roadways of sufficient width a 

vehicle shall be driven upon the right half of the 

roadway. ' 
"If you find from the evidence that a party to this 

action conducted his or herself in violation of the 

law just read to you, 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 

an injury." 

Appellants object to the instruction because 

section 61-8-321, MCA, was not set forth in its entirety and 

hence appellant was prejudiced. The remaining portions of 

the statute not quoted in the instruction are irrelevant. 

Section 61-8-321, MCA, in unabridged form states: 

" (1) Upon all roa.d.ways of sufficient width a 

vehicle shall be driven upon the right half of the 

road.wzy, except as follows: 

"(a) when overtaking and passing another vehicle 

proceeding in the same direction under the rules 

governing such movement; 

"(b) when the right half of a roadway is closed to 

traffic while under construction or repair; 

"(c) upon a roadway divided into three marked 

lanes for traffic under the rules applicable thereon; or 

"(dl upon a roadway designated and signposted for 

one-way traffic. 

" (2) Upon all roadways any vehicle proceeding at 

1-ess than the normal speed of traffic at the time 

and place and under the conditions then existing 

shall be driven in the right-hand lane then available for traffic, or as close as practicable to the 

right-hand curb or edge of the roadway except when 

overtaking and passing another vehicle proceeding 

j.n the same direction or when preparing for a left 

turn. at an intersection or into a private road or 

driveway. I' 

Appellants complain that giving instruction no. 19 had 

the effect of exonerating the State of Montana by making 

Lindberg or Leatham negligent per se. An instruction on 

comparative fault was given. The jury was not instructed to 

disregard any negligence on the part of the State of Montana, 

only that both parties involved in the collision must drive 
on the right side of the road. The court did not err in 

giving this instruction. 

XV. DID THE COURT COMMIT REVERSIBLE ERROR TN GRANTING 

THE RESPONDENTS' JOINT MOTION FOR DIRECTED VERDICT AGAINST 

APPELLANTS ON THE CLAIM FOR DAMAGES UNDER WHAT HAS HERETOFORE 

BEEN KNOWN AS A SURVIVAL CAUSE OF ACTION? 

This issue involves the damages allowable in a survival 

action. The appellants apparently ask this Court to 

reexamine the doctrine that a decedent must live "an 

appreciable amount of time" in order for a survival action to 

accrue. See Stephens v. Brown (1972), 160 Mont. 453, 457, 

503 P.2d 667, 670; Dillon v. Great Northern Ry. Co. (1909), 

38 Mont. 485, 496, 100 P. 960, 963; Smith, Thoughts - on 

Survival Action - in Montana - and Related Matters, 41 

Mont.L.Rev. 165 (1980). 

Since the jury found that respondents were not liable 

and we affirm their verdict, the above issue is moot a.nd left 

for another da.y . 

XVI . DID THE DISTRICT COURT COf?IMIT ERROR BY MOT 

ALLOWING THE JURY TO TAKE A RECESS BEFORE DELIBERATING AND 

CONSIDERTNG THEIR VERDICT AND THUS DENY APPEJJL,ANTS A FAfR 

TRIAI, ? 

Appellants cannot be heard here on appeal to complain 

about a tired jury heing sent to deliberate when they did not 

object at trial. 

The trial cou.rt should consid-er the hour and condition. 

of the jurors before sending them to deliberate. It is the 

duty of the trial court acting within its sound discretion 

not to allow the jury to begin deliberations under conditions 

that would prejudice either party. No objection was raised 
at trial, and we have no grounds to find inherent prejudice 

to the appel.lants. 

A£ f irmed. 

, 

> 

i Justice f 

,jf './ 

We Concur: 

Justices