No. 85-51 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

KERRY ELDONWHITE, Cross-Claimantand Appellant,

VIC PHILLIPS and FRANCIS PHILLIPS as successors in interest to IKEV. PHILLIPS, Cross-Defendants,Respondents and Cross-Appellants.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Thomas Olson, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: 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: 

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ClerkMr. 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 accidenton September 7,1980. White was sued by hispassengers,Randy Simonsonand DaveRasmussen, as

was the driver of the other automobile, Ike V. Phillips. White also filed a cross-claim against Phillips. Thevarious lawsuits were consolidated, but on plaintiff-passengers' request, trial on the liability issues was bifurcated from that ondamages. Following trialby jury,White's negligence

was found to be the proximate cause of 40%ofhispassengers' injuries. Phillips' negligencewas responsible for the other 60%. The conduct of both White and Phillipswas also found to be willful orwanton. Pursuant to instructions given the jury,White's cross-claim against Phillipswas denied because White was found to be guilty of willful or wanton conduct. White appeals the judgmententeredby the Eighteenth Judicial District Court on his cross-claim against Phillips. We vacate the judgmentand remand fora 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 wasdriving at ahigh rate of speed. His vehicle failed to negotiate a curve, somersaulted and landedupside-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 toregain 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' negligencewas 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' conductwas 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 hewas not negligent,and that ifhe had been negligent, his negligence was not a proximate cause of the claimants' injuries. Phillips furtheralleged thatWhite 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 supportof his claim againstWhite: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 courtagreed to give White's proposed comparative negligence instruction and

an instruction that the comparative negligence doctrine does not apply ifdefendant's conduct iswillful orwanton. A special verdict formwas prepared by White asking the jury to determine whether the conduct of Phillipswaswillful

or wanton. Phillips again objected because it failed to ask the jury to determine whether Kerry White also acted willfully orwantonly. Phillips1objectionwas 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 ofwhichwas: CasesA and B [theclaims 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 isalso a d.efendant. In response, the court amended the special verdict forms to includeadeterminationby the jury ofwhether White acted willfully or wantonly. The instruction on when the comparativenegligence doctrinedoesnot applywas unaltered. At the request of Phillips and plaintiffs, the court amended the pleadings and the pre-trial order to include a specific willful orwa-ntonconduct charge againstWhite. White objected to these changes on severalgrounds, 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 ofthe case. White also requested the court to give an instruction on grossnegligenceand an instruction permitting the comparisonofwillful orwanton 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.1verdict 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 instructionson Form C, since the jury found White's and/or Phillips' conduct to be willful orwanton, 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 forWhite's injuries. Further facts will be developed as necessary for resolutionof 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 orwillful conducton thepart ofKerryWhite? 2. Whether the District Court erred in refusing to permit comparison of appellant's wanton and willful conduct with like conducton thepart of Phillips? 3. Whether the District Court erred in requiring appellantWhite 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 raisedby 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 theDistrict Court err in allowing Officer James Curtin of the Montana Highway Patrol to testify as an expert witness and express his opinionas 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 andsubstituted 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 innature,wewill 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 "IkeV. Phillipsand the Estate of IkeV. 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 ofhis death, hisparents 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 ispermitted under Rule 17(a), M.R.Civ.P., without adversely affecting any applicable statuteof 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. Weagree the jury was improperly instructed, but for reasons different than those offeredby White. Phillips alleged in his trial brief that White acted in a reckless manner. Reckless conduct has been found synonymouswith willful orwanton conduct in numerous Montana

cases. See for example,Mallory v. Cloud (1975), 167Mont. 115, 535 P.2d 1270. In fact, Webster's International Dictionary defines "wanton" as "reckless, heedless or malicious." Cashinv. Northern Pac. Ry. Co. (1934),96Mont. 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 thatWhite's conductwaswillful 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 conductwas reckless,became part of thepleadings. Therefore,itwas proper to instructthe jury concerning Phillips' allegation that White's conduct was willful or wanton. However, those instructions came too late.The original instructionsdid 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 aswell as to argue in response to defenses raised by the otherparties is essential to the litigant's right to have his case fairly presented to the jury. It includes the opportunity "toargue 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.

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# . 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 inferencesto be drawn from all the testimony, and point out the weaknesses of theiradversaries' positions.

In a 

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# . . 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 submissionof the case to judgment. Herring v. New York (1975), 422U.S. 853, 862, 95 s.Ct. 2550, 2555, 45 L.Ed.2d 593, 600. Therefore,sinceWhite was denied the opportunity to argue thathis conductwas notwillful 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 trialgranted. Section 25-11-102

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## ,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 thatwillful or wanton conductmay 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 conductmay 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, consistentwith the comparative negligence statute, a person may recover damages for his injuries only

so long ashis 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 actsbut also for any injury occasioned to anotherby hiswant of ordinary care or skill in the management of his property orperson 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 statuteas it has been previously interpreted "to limit a comparison of plaintiff's acts only when defendanthas committed acts of a similar kind." Derenberger, 674 P.2d at 487, 40 St.Rep. at 905.

We need notdetermine whether it was error for the trial judge to require White to provide this Court with an entiretranscript 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. Sincewe 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 marijua.na,using cocaine and ingesting 1or 2 capsules ofEphredine Sulphateon 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 DistrictCourt,dated April 26, 1984. Cross-appellant contends that the firstpart 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 inNelson v. Hartman (1982),199Mont. 295, 299, 648 P.2d 1176, 1178. There, the trial judge conditionallyexcluded the evidence until a foundation linking the defendant's driving record with his competency to drive at the time of the accidentwas laid. Likewise,we approve this trial judge's demand for a link between the prejudicialevidence and the accident. If White's negligencewas 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 thathe 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 todrive. 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 itsprejudicialeffect.

The investigating highway patrol officer, James Curtin, testified that inhis opinion Phillipswas traveling too fast to safely negotiate the corner and Whitewas 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 grantedwide discretion in determiningwhether to admit opinion testimony of investigating police officersregarding the speeds of vehicles. Graham v. Rolandson (1967),150Mont. 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.1accident. 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 thatused repeatedlyby courts inMontana: You are instructed thatwhen aperson is facedwith a sudden emergency which is not createdby 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 themost judicious courseasdisclosedby subsequentevents. Jury Instruction #16. There is no rea-sonfor this instructionto 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. l1The circumstances" includes the pressure and split-seconddecision-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 somehowexcused from the ordinary standard of carebecause an emergency existed. This is not the law. See W. P. Keeton, The Law ofTorts 5 33 (5thed. 1984). In Knapp v. Stanford (Miss. 1981), 392 So.2d 196, the Mississippi Supreme Court abolished prospectively the sudden emergency instruction in allnegligence cases,stating: The hazard of relying on the doctrine of "sudden emergency" is the tendency to elevate its principles abovewhat 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 theprinciple of comparative negligence that iswell 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 ishereafterbanned. The verdict isva.ca.ted and this cause is remanded for a

new trial,consistent with t

We concur: 

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