No. 85-51 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

KERRY ELDON WHITE, 

Cross-Claimant and Appellant, 

VIC PHILLIPS and FRANCIS PHILLIPS as 

successors in interest to IKE V. PHILLIPS, 

Cross-Defendants, Respondents and 

Cross-Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Goetz, Madden & Dunn; William J. Madden, Jr. argued, 

Bozeman, Montana 

For Respondent: 

Keefer, Roybal, Hanson, Stacey & Jarussi; Calvin J. 

Stacey argued, Billings, M.ontana 

Submitted: October 8, 1985 

Decided: January 23, 1986 

Filed: ilAN 2 3 1986 

Clerk 
Mr. Justice Frank E. Morrison, Jr. delivered the Opinion of 

the Court. 

Kerry Eldon White was the driver of one of two cars 

involved in a fatal accident on September 7, 1980. White was 

sued by his passengers, Randy Simonson and Dave Rasmussen, as 

was the driver of the other automobile, Ike V. Phillips. 

White also filed a cross-claim against Phillips. The various 

lawsuits were consolidated, but on plaintiff-passengers' 

request, trial on the liability issues was bifurcated from 

that on damages. Following trial by jury, White's negligence 

was found to be the proximate cause of 40% of his passengers' 

injuries. Phillips' negligence was responsible for the other 

60%. The conduct of both White and Phillips was also found 

to be willful or wanton. Pursuant to instructions given the 

jury, White's cross-claim against Phillips was denied because 

White was found to be guilty of willful or wanton conduct. 

White appeals the judgment entered by the Eighteenth Judicial 

District Court on his cross-claim against Phillips. We 

vacate the judgment and remand for a new trial. 

The accident occurred at approximately 2:30 a.m. on the 

Canyon Ferry Road eight miles east of Hel-ena. Ike Phillips 

was driving east to his family's home on Canyon Ferry Lake. 

He had been drinking and was driving at a high rate of speed. 

His vehicle failed to negotiate a curve, somersaulted and 

landed upside-down in the borrow pit on the south side of the 

road. The vehicle landed headed in a westwardly direction. 

Very shortly thereafter the White vehicle, also 

proceeding east on Canyon Ferry Road, came upon the scene. 

As White topped the hill immediately prior to the curve, he 

saw what appeared to be headlights in his driving lane. 

White testified that to avoid a collision, he drove his car 

into the ditch on the right (south) side of the road. On 

entering the ditch, White saw Phillips' car and tried to 
regain the road, but crashed into the Phillips' vehicle. 

Phillips was killed. It is unknown which collision caused 

his death. All occupants of the White vehicle suffered 

injury. 

In the pre-trial order, the passengers, Rasmussen and 

Simonson, claimed that defendant Phillips' negligence was the 

primary proximate cause of their injuries and that defendant 

White was negligent, if at all, to a slight degree. 

Cross-claimant White alleged that Phillips was "negligent 

and/or negligent as a matter of law;" that as a result of 

such negligence "a hazard or sudden emergency was created;" 

that White "was not negligent in responding to the hazard or 

sudden emergency;" and that if White were negligent in his 

response, his negligence was less than the negligence of 

Phillips which created the hazard or sudden emergency. 

Further, White alleged that Phillips' conduct was willful or 

wanton and that therefore, the doctrine of comparative 

negligence should not be applied to reduce White's claim. 

Rather than joining in the pre-trial order, Phillips 

stated his contentions in a separate trial brief. However, 

that brief was incorporated into the pre-trial order by the 

following interlineation--"Phillips1 contentions: Please 

refer to Phillips' trial brief." In his brief, Phillips 

maintained that he was not negligent, and that if he had been 

negligent, his negligence was not a proximate cause of the 

claimants' injuries. Phillips further alleged that White was 

negligent; that White's negligence was the sole proximate 

cause of White's, Rasmussen's and Simonson's injuries; and 

that White's negligence constituted a superseding and 

intervening cause cutting off Phillips' liability, if any. 

Finally, Phillips' brief listed two allegations in support of 

his claim against White: 
1. White's driving abilities (including hut not 

limited to perception and reaction capabilities) 

were substantially impaired by his use of alcohol 

and drugs; and 

2. White drove his vehicle in a reckless and 

careless manner (speed) . 

The case was tried before a jury. At the close of the 

presentation of evidence, all parties submitted proposed 

instructions. Over Phillips' objections, the court agreed to 

give White's proposed comparative negligence instruction and 

an instruction that the comparative negligence doctrine does 

not apply if defendant's conduct is willful or wanton. 

A special verdict form was prepared by White asking the 

jury to determine whether the conduct of Phillips was willful 

or wanton. Phillips again objected because it failed to ask 

the jury to determine whether Kerry White also acted 

willfully or wantonly. Phillips1 objection was overruled and 

White's special verdict forms were adopted by the court. 

After several hours of deliberation, the jury returned 

with questions for the court, one of which was: 

Cases A and B [the claims of Simonson and Rasmussen 

against White and Phillips] Question 3 asks if Ike 

Phillips was willful or wanton, why isn't the 

question asked if Kerry White was willful or 

wanton. He is also a d.efendant. 

In response, the court amended the special verdict forms 

to include a determination by the jury of whether White acted 

willfully or wantonly. The instruction on when the 

comparative negligence doctrine does not apply was unaltered. 

At the request of Phillips and plaintiffs, the court amended 

the pleadings and the pre-trial order to include a specific 

willful or wa-nton conduct charge against White. 

White objected to these changes on several grounds, the 

most important being that the court lacks judicial power to 

amend instructions and verdict forms after the case has been 

tried, argued, submitted and deliberated upon if such 

amendments substantially and materially change the theory of 
the case. White also requested the court to give an 

instruction on gross negligence and an instruction permitting 

the comparison of willful or wanton conduct with like conduct 

under the comparative negligence doctrine. Both requests 

were denied. 

Thereafter, the case was returned to the jury for 

further deliberations. There were three specia.1 verdict 

forms before the jury. Form A involved the claim of 

passenger Simonson against White and the successors in 

interest to Phillips. Form B was for passenger Rasmussen's 

claim against the same individuals. Form C was for White's 

claim against the successors in interest to Phillips. 

The jury found both Simonson and Rasmussen to be 

negligent, but held their negligence not to be a proximate 

cause of their injuries; found White's and Phillips' conduct 

to be negligent and willful or wanton; and divided the 

responsibility for Rasmussen's and Simonson's injuries 

between White and Phillips 40% and 60% respectively. Then, 

on White's cross-claim against Phillips, the jury found both 

individuals' conduct to be negligent and willful or wanton 

and held both individuals' conduct to be a proximate cause of 

White's injuries. However, pursuant to instructions on Form 

C, since the jury found White's and/or Phillips' conduct to 

be willful or wanton, the jury did not assign proportions of 

negligence to either of them. Therefore, White's willful or 

wanton conduct became an absolute defense to Phillips' 

willful or wanton conduct, barring any finding of liability 

on the part of Phillips for White's injuries. 

Further facts will be developed as necessary for 

resolution of this case. 

White appeals, raising the following issues: 
1. Whether the District Court erred in amending the 

pleadings and special verdict forms to permit a finding of 

wanton or willful conduct on the part of Kerry White? 

2. Whether the District Court erred in refusing to 

permit comparison of appellant's wanton and willful conduct 

with like conduct on the part of Phillips? 

3. Whether the District Court erred in requiring 

appellant White to transcribe the entire trial court record, 

when only that part from settlement of jury instructions 

through taking of the verdict is necessary to determine the 

issues raised by this appeal? 

Phillips also submits several issues on cross-appeal for 

this Court's consideration should. we remand for a new trial. 

1. Did the District Court err in granting White's 

motion in limine preventing Phillips from introducing any 

testimony relating to White's use of drugs on the day of the 

accident? 

2. Did the District Court err in allowing Officer James 

Curtin of the Montana Highway Patrol to testify as an expert 

witness and express his opinion as to the estimated speeds of 

the vehicles driven by White and Phillips at the time of the 

accident? 

3. Did the District Court err in allowing White to 

introduce testimony and exhibits relating to an experiment 

which he performed in an attempt to recreate the accident in 

question in light of the fact certain dissimilarities existed 

between the experiment and what actually occurred on the 

night of the accident? 

4. Did the District Court err in submitting a "sudden 

emergency1' instruction to the jury at the request of White? 

5. Did the District Court err when it dismissed 

defendants "IKE V. PHILLIPS and the ESTATE OF IKE V. 

PHILLIPS" from the lawsuit on the first day of trial and 
substituted in their place as defendants "VIC PHILLIPS and 

FRANCIS PHILLIPS AS SUCCESSORS IN INTEREST TO IKE V. 

PHILLIPS?" 

As the final issue raised by cross-appellant Phillips is 

jurisdictional in nature, we will address it first. Phillips 

contends the trial judge erred when, on the first day of 

trial, he substituted "Vic Phillips and Francis Phillips as 

successors in interest to Ike V. Phillips" for defendants 

"Ike V. Phillips and the Estate of Ike V. Phillips." 

We find no error in this substitution. Section 

27-1-501, MCA, provides that a cause of action against a 

deceased may be brought "in the name of his representatives 

or successors in interest." See Muir v. Kessinger (D.C. 

Mont. 1940), 35 F.Supp. 116, 117. Since Ike Phillips was 

unmarried and childless at the tine of his death, his parents 

are his successors in interest. Section 72-2-203(2), MCA. 

This action was initially brought against Ike Phillips 

and his estate. Section 72-3-104 (1) , MCA, requires the 

appointment of a personal representative prior to the 

commencement of a claim against the estate of a deced.ent. 

Since there was no estate, no personal representative was 

appointed. Therefore, it became necessary to substitute the 

real parties in interest, Phillips1 successors in interest, 

for his estate. Such a substitution is permitted under Rule 

17(a), M.R.Civ.P., without adversely affecting any applicable 

statute of limitations. 

Appellant's Issues 

I. 

Initially, White contends Phillips failed to allege 

willful or wanton conduct on the part of White. Therefore, 

the trial judge erred when he amended the pleadings and 

special verdict forms to include such an allegation. We 
agree the jury was improperly instructed, but for reasons 

different than those offered by White. 

Phillips alleged in his trial brief that White acted in 

a reckless manner. Reckless conduct has been found 

synonymous with willful or wanton conduct in numerous Montana 

cases. See for example, Mallory v. Cloud (1975), 167 Mont. 

115, 535 P.2d 1270. In fact, Webster's International 

Dictionary defines "wanton" as "reckless, heedless or 

malicious." Cashin v. Northern Pac. Ry. Co. (1934), 96 Mont. 

92, 110, 28 P.2d 862, 869. See also, W. Prosser, --- The Law of 

Torts 5 34 (4th ed. 1971). Thus, by alleging reckless 

conduct, Phillips alleged that White's conduct was willful or 

wanton. To hold otherwise would be contrary to Montana's 

liberal pleadings law. Morse v. Espeland (Mont. 1985), 696 

P.2d 428, 430, 42 St.Rep. 251, 252-253 and Rule 8, M.R.Civ.P. 

Since Phillips' trial brief was incorporated by 

reference into the pre-trial order, his brief, and his 

allegation that White's conduct was reckless, became part of 

the pleadings. Therefore, it was proper to instruct the jury 

concerning Phillips' allegation that White's conduct was 

willful or wanton. However, those instructions came too 

late. 

The original instructions did not include any reference 

to Phillips' affirmative defense that White's conduct was 

willful or wanton. Therefore, White was denied the 

opportunity to argue against that defense prior to the case 

going to the jury. The right to argue one's case as well as 

to argue in response to defenses raised by the other parties 

is essential to the litigant's right to have his case fairly 

presented to the jury. It includes the opportunity "to argue 

every material issue in a case upon which evidence has been 

introduced . . . . " Ring v. Kaplan (Cal. 1949), 211 P.2d 

578, 580. 
It can hardly be questioned that closing argument 

serves to sharpen and clarify the issues for 

resolution by the trier of fact. . . . For it is 

only after all the evidence is in that counsel for 

the parties are in a position to present their 

respective versions of the case as a whole. Only 

then can they argue the inferences to be drawn from 

all the testimony, and point out the weaknesses of 

their adversaries' positions. 

In a . . . trial, which is in the end basically a 

fact-finding process, no aspect of such advocacy 

could be more important than the opportunity 

finally to marshal the evidence for each side 

before submission of the case to judgment. 

Herring v. New York (1975), 422 U.S. 853, 862, 95 s.Ct. 2550, 

2555, 45 L.Ed.2d 593, 600. Therefore, since White was denied 

the opportunity to argue that his conduct was not willful or 

wanton, it was error for the trial judge to later amend the 

pleadings and. special verdict forms to allow the jury to 

consider that issue. 

This error alone resulted in substantial injustice to 

White. Therefore, the verdict should be set aside and a new 

trial granted. Section 25-11-102 (7) , MCA. 

Appellant next objects to the trial judge's refusal to 

permit apportionment of fault between White and Phillips if 

the conduct of either or both is willful or wanton. The 

trial judge's decision is premised on this Court's decision 

in Derenberger v. Lutey (Mont. 1983), 674 P.2d 485, 40 

St.Rep. 902. However, Derenberger holds only that willful or 

wanton conduct may not be compared to negligent conduct under 

Montana's comparative negligence statute, S 27-1-702, MCA. 

The above statutory construction indicates to us 

that mere negligence and willful and wanton 

misconduct are different in kind, rather than 

degree. Consequently, we find that the legislature 

did not intend that they be compared under 

Montana's comparative negligence statute. 
Derenberger, 674 P.2d at 487-488, 40 St.Rep. at 906. No 

decision was rendered in Derenberqer with respect to whether 

willful or wanton conduct may be compared with like conduct. 

Since we have held willful or wanton conduct to be 

different in kind from negligent conduct, the comparative 

negligence statute can not apply to wil-lful or wanton 

conduct. However, the comparative negligence doctrine was 

adopted to ameliorate the harshness of the "all or nothing" 

result under the old contributory negligence approach. It 

makes no sense to retain this harsh result where the conduct 

being compared is other than negligent. Derenberger, supra. 

The better rule is to allow comparison of the parties' 

conduct so long as the conduct is of the same "kind". 

Therefore, we hold that like conduct of parties, regardless 

its label, may be compared for purposes of ascertaining 

damages. However, consistent with the comparative negligence 

statute, a person may recover damages for his injuries only 

so long as his misconduct is not greater than the conduct of 

the person against whom recovery is sought. Section 

27-1-702, MCA. 

Finally, S 27-1-701, MCA, states: 

Liability for negligence as well as willful acts. 

Everyone is responsible not only for the results of 

his willful acts but also for any injury occasioned 

to another by his want of ordinary care or skill in 

the management of his property or person except so 

far as the latter has willfully or by want of 

ordinary care brought the injury upon himself. 

Our holding today is not inconsistent with this statute as it 

has been previously interpreted "to limit a comparison of 

plaintiff's acts only when defendant has committed acts of a 

similar kind." Derenberger, 674 P.2d at 487, 40 St.Rep. at 

905. 

We need not determine whether it was error for the trial 

judge to require White to provide this Court with an entire 
transcript of the proceedings below as White's appeal is 

successful. The cost of preparing a transcript for appeal 

purposes is one of the costs on appeal awarded to the 

successful party under Rule 33 (c) , M.R.App. Civ.P. and 

S 25-10-104 (2) , MCA. 

CROSS-APPELLANT ' S ISSUES 

Cross-appellant Phillips presents several issues for 

this Court's consideration. Since we are remanding for a new 

trial, we will address only the legal issues raised, not the 

application of the facts to the law in the previous trial. 

White admitted smoking mari jua.na, using cocaine and 

ingesting 1 or 2 capsules of Ephredine Sulphate on the day of 

the accident. Simonson, Rasmussen and White filed a joint 

motion in limine requesting that all evidence regarding the 

use of drugs prior to the accident be excluded from trial. 

Following a hearing and filing of briefs in the matter, the 

motion was granted and the evidence excluded unless a 

foundation could be established showing: 

a. At the time of the collision, the driver was 

under the influence of drugs, and the passengers 

knew or should have known that he was under the 

influence ; and 

b. The driver's negligence was the proximate or 

controlling cause of the injuries to plaintiffs. 

Order of the District Court, dated April 26, 1984. 

Cross-appellant contends that the first part of the test 

is nearly impossible to prove and that the second part is a 

determination which should be left for the jury. We 

disagree. 

Evidence of the use of drugs is, by its very nature, 

prejudicial. We previously approved a similar foundational 

requirement as a condition to admission of prejudicial 

evidence in Nelson v. Hartman (1982), 199 Mont. 295, 299, 648 

P.2d 1176, 1178. There, the trial judge conditionally 
excluded the evidence until a foundation linking the 

defendant's driving record with his competency to drive at 

the time of the accident was laid. Likewise, we approve this 

trial judge's demand for a link between the prejudicialevidence and the accident. If White's negligence was not a 

cause of the accident, it should not be a-dmitted. Again, 

there is no error. 

Even if the test is met, the trial court must still 

weigh the probative value of the evidence against its 

prejudicial effect. Rules 401 a.nd 403, M.R.Evid. With 

respect to the probative value of the evidence, 

cross-appellant's own expert witness, Dr. Kenneth Mueller, 

testified that he could not state with a reasonable degree of 

medical certainty that White's use of the drugs had any 

adverse effect on his driving ability at the time of the 

accident. Under Aasheim v. Humberger (Mont. 1985), 695 P.2d 

824, 42 St.Rep. 235, the proper test to be used at the next 

trial is whether White's drug useage "more likely than not" 

affected his ability to drive. Aasheim, 695 P.2d at 827-828, 

42 St.Rep. at 239, 240. If this test cannot be met by 

Phillips, there will be no abuse of discretion should the 

trial judge hold that the probative value of the evidence is 

not outweighed by its prejudicial effect. 

The investigating highway patrol officer, James Curtin, 

testified that in his opinion Phillips was traveling too fast 

to safely negotiate the corner and White was traveling within 

the speed limit immediately prior to the accident. 

Cross-appellant objects, contending that Officer Curtin was 

not qualified to offer such an opinion because he did not 

conduct drag factor or coefficient of friction tests. The 

trial judge is granted wide discretion in determining whether 

to admit opinion testimony of investigating police officers 
regarding the speeds of vehicles. Graham v. Rolandson 

(1967), 150 Mont. 270, 285, 435 P.2d 263, 271. Given Officer 

Curtin's qualifications and experience, as well as the 

general nature of his testimony, we find no abuse of 

discretion. 

Next, cross-appellant objects to the admission into 

evidence of pictures taken during a re-creation of the 

accident. White assisted with the re-creation, then 

explained to the jury the dissimilarities between the 

re-creation and the actua.1 accident. If the conditions of 

the re-creation are "substantially similar" to those at the 

time of the accident and the re-creation has been properly 

foundationed, there is no abuse of discretion by the trial 

judge in admitting the evidence. Johnson v. Y.M.C.A. of 

Great Falls (1982), 201 Mont. 36, 41-42, 651 P.2d 1245, 

1248-1249; Barmeyer v. Montana Power Company (Mont. 1983), 

IV. 

Finally, cross-appellant objects to the use of a sudden 

emergency instruction in this case. The instruction given is 

that used repeatedly by courts in Montana: 

You are instructed that when a person is faced with 

a sudden emergency which is not created by his own 

negligence, his conduct is to be tested by what an 

ordinarily prudent person would have done under the 

same circumstances and he is not chargeable with 

negligence for failing to adopt the most judicious 

course as disclosed by subsequent events. 

Jury Instruction #16. 

There is no rea-son for this instruction to ever be given 

in an automobile accident case. It adds nothing to the 

established law applicable in any negligence case, that due 

care under the circumstances must be exercised. l1 The 

circumstances" includes the pressure and split-second 
decision-making which accompanies the crisis prior to some 

automobile accidents. Further, a driver is never held 

responsible for non-negligent actions which prove, with 

hindsight, to have been incorrect. The instruction adds 

nothing to the law of negligence and serves only to leave an 

impression in the minds of the jurors that a driver is 

somehow excused from the ordinary standard of care because an 

emergency existed. This is not the law. See W. P. Keeton, 

The Law of Torts 5 33 (5th ed. 1984). 

In Knapp v. Stanford (Miss. 1981), 392 So.2d 196, the 

Mississippi Supreme Court abolished prospectively the sudden 

emergency instruction in all negligence cases, stating: 

The hazard of relying on the doctrine of "sudden 

emergency" is the tendency to elevate its 

principles above what is required to be proven in a 

negligence action. Even the wording of a 

well-drawn instruction intimates that ordinary 

rules of negligence do not apply to the 

circumstances constituting the claimed "sudden 

emergency." Also it tends to confuse the principle 

of comparative negligence that is well ingrained in 

the jurisprudence of this State. 

Knapp, 392 So.2d at 198. 

Sj-mi larly , the use of the sudden emergency instruction 

in automobile accident cases is hereafter banned. 

The verdict is va.ca.ted and this cause is remanded for a 

new trial, consistent with t 

We concur: /