No. 80-109 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

NANCY McALPINE, Individually and as 

Personal Representative, 

Plaintiff and Appellant, 

VS. 

MIDLAND ELECTRIC CO., and THE STATE 

OF MONTANA, 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hoyt and Trieweiler, Great Falls, Montana 

John C. Hoyt argued, Great Falls, Montana 

For Respondents: 

Cure and Borer, Great Falls, Montana 

Edward Borer argued, Great Falls, Montana 

Marra, Wenz, Iwen & Johnson, Great Falls, Montana 

Joseph Marra argued, Great Falls, Montana 

Filed: 

SEP 2 9 198Q 

Submitted: June 9, 1981 

Decided: September 28, 1.981 

- 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

~aniel McAlpine was killed in an automobile accident on 

~pril 27, 1975. is widow, Nancy McAlpine, filed a wrongful 

death action against Roger Dahl, Midland Electric Company, 

and the State of Montana. Summary judgment was entered in 

favor of all three defendants in May 1977. Nancy McAlpine 

appealed, and this Court reversed the orders granting summary 

judgment. Dahl settled with McAlpine, and trial was had as 

to the remaining defendants in November 1979. On December 

1, 1979, the jury returned verdicts for Midland Electric 

Company and the State of Montana. Plaintiff McAlpine filed 

combined motions to set aside the jury verdict and for a new 

trial on the issue of damages only. The district judge 

refused to grant the relief sought by McAlpine, and she 

appeals. We reverse. 

On Sunday, April 27, 1975, Arthur Krueger was driving a 

one-ton pickup with a gooseneck fifth wheel trailer westward 

on a two-lane stretch of Highway 89 near Great Falls, Montana. 

Krueger was a job foreman for Midland Electric Company of 

Billings, Montana, and the vehicles belonged to Midland. At 

about 9:30 p.m., a wheel came off of the left side of the 

trailer. The trailer was immobilized and blocked the westbound 

lane of traffic. Krueger had no warning devices, but was 

given three reflectors by passersby. These were placed 

behind the trailer to the east. A short time later ~ighway 

Patrolman James Coey arrived. Coey radioed for a wrecker 

and Dahl's Wrecker Service dispatched a vehicle. Coey 

stayed on the scene for about one-half hour, but left before 

the wrecker arrived. Coey did not place any warning devices 

upon the highway, but gave Krueger two fusees before departing. 

He left in order to assist a fellow officer in the apprehension 
of a suspect on a bad check charge. The other officer had 

not requested assistance. 

Coey passed the Dahl wrecker on the highway and instructed 

Dahl over the radio that the trailer should be towed to an 

approach 300-400 feet east of where it had come to rest. 

Dahl hooked his wrecker to the left rear of the trailer (the 

side without wheels). This put the Dahl wrecker in the 

westbound lane of traffic but facing in an easterly direction. 

Dahlls clearance lights, four-way flashers, rotating beacon 

and work light were all in operation. The Midland vehicle's 

clearance lights and flashers were on. There were fusees 

and reflectors on the roadway to the east. Ronald Mammen, 

Dahlls stepson, was standing in the highway alongside the 

trailer holding a flashlight with a yellow hazard light on 

top. Dahl began towing the disabled fifth wheel trailer in 

an easterly direction but in the westbound lane. Krueger 

was in the pickup, driving it in reverse. They were traveling 

at a very slow speed. 

At this time the vehicle owned by Daniel McAlpine 

approached the scene. McAlpine was a farmer/rancher from 

Sunburst, Montana. He had spent the day at Stanford, Montana, 

attending a bull sale. Michael Hofer had accompanied him to 

the sale. Hofer had moved to the McAlpine ranch two days 

before the accident. He had been hired to help with spring 

planting. Whether he had begun work was a trial issue. At 

trial two witnesses testified to seeing both Hofer and 

McAlpine consume alcohol at different locations in Stanford 

after the bull sale. Two other witnesses testified that the 

McAlpine vehicle passed them at a high rate of speed and was 

being driven in an erratic manner. Roger Dahl and Ronald 

Mammen testified that the McAlpine vehicle approached the 

disabled vehicle at a high rate of speed and did not appear 
to slow down. When the McAlpine vehicle reached the wrecker, 

it passed to the right of it but struck the right rear 

corner of the Midland trailer. Michael Hofer, who was 

driving, and Daniel McAlpine were killed instantly. Hofer 

died with a beer can between his legs. There were empty 

beer cans in the vehicle. Hofer's blood alcohol level was 

Nancy McAlpine brought suit and judgment was eventually 

entered for defendants Midland Electric Company and the 

State of Montana. Because we are reversing the judgment, we 

will only address those issues that are likely to reemerge 

if the case is retried: 

1. Was it error to admit the blood alcohol tests of 

Hofer and McAlpine? 

2. Were the results of the blood alcohol tests inadmissible because their proponents failed to establish a foundation 

which would assure their trustworthiness? 

3. Did the District Court commit reversible error by 

improperly instructing the jury on the issue of contributory 

negligence? 1) 

Appellant McAlpine bases her argument on this issue 

upon the restriction of the Uniform Accident Reporting Act. 

That Act contains the following language at section 61-7- 

114, MCA: 

"Accident reports confidential, (1) All required 

accident reports and supplemental reports shall 

be without prejudice to the individual so reporting and shall be for the confidential use of 

the division or other state agencies having use 

for the records for accident prevention purposes, 

or for the administration of the laws of this 

state relating to the deposit of security and proof 

of financial responsibility by persons driving or 

the owners of motor vehicles, except that the division may disclose the identity of a person involved 

in an accident when such identity is not otherwise 

known or when such person denies his presence at 

such accident. 
" (2) All accident reports and supplemental information filed as required by this part shall be 

confidential and not open to general public inspection, nor shall copying of lists of such reports 

be permitted, except, however, that the report and 

supplemental information filed by law enforcement 

personnel, as required by this part, may be examined 

by any person named in such report or reports or by 

any driver, passenger, or pedestrian involved in the 

accident or by his representative designated in 

writing, or if such person shall be deceased, by 

his executor or administrator or by the attorney 

representing such executor or administrator . 

"(3) No such report shall be used as evidence in 

any trial, civil or criminal, arising out of an 

accident, except that the division shall furnish 

upon demand of any person who has or claims to have 

made such a report or upon the demand of any court 

a certificate showing that a specified accident report has or has not been made to the division solely 

to prove a compliance or a failure to comply with 

the requirement that such a report be made to the 

division. " 

The blood alcohol percentages of the accident victims 

were brought before the jury in the form of the laboratory 

analysis reports of both the Michael Hofer and Daniel McAlpine 

blood samples. Appellant did not raise the prohibitory 

language of section 61-7-114, MCA, in her objection to the 

admission of these reports. Normally, the party complaining 

of error must stand or fall upon the ground relied upon in 

the trial court and objections which are urged for the first 

time on appeal will not be considered by this Court. Bower 

v. Tebbs (1957), 132 Mont. 146, 160, 314 P.2d 731, 739. 

Nevertheless, this Court has a duty to determine whether the 

parties before it have been denied substantial justice by 

the trial court. This Court can, within its sound discretion, 

consider whether the trial court has deprived a litigant of 

a fair and impartial trial, even if the parties ignored the 

mandate of a statute or an established precedent. Halldorson 

v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169; Kudrna 

v. Comet Corp. (1977), 175 Mont. 29, 572 P.2d 183. If the 

prohibition of section 61-7-114, MCA, should have been 
applied to the blood test results of Hofer and McAlpine, it 

would have been plain error to allow the tests into evidence 

despite the lack of a specific reference to the statute in 

the objection. In order to determine if the appellant has 

been denied substantial justice, we will consider whether 

section 61-7-114, MCA, mandates exclusion of this evidence. 

Clearly, any reports required by the Uniform Accident 

Reporting Act, section 61-7-101 et seq., and any reports 

which supplement the required reports are not admissible in 

court. However, the blood test result forms themselves were 

admitted below. We conclude that the blood test results are 

not required or supplemental accident reports as contemplated 

by the statute. The information they disclose relates 

solely to the testing of blood from an individual. The 

forms do not provide for reference to the occurrence of an 

accident or the conditions existing at the time of the 

occurrence of an accident. Further, the forms contain a 

"Notification of Rights" which states in part that: "Prior 

to my voluntary consent to give a sample of body substance 

for chemical analysis, I was informed . . . 3. That the 

results of the chemical analysis of the body substance, 

given by me, might be used against me in a court of law. 4. 

That any admissions I make, or any information contributed 

by me, may be used against my interest in a court of law." 

The "Notification of Rights" clearly indicates that the lab 

test form is not a required report to which a guarantee of 

confidentiality was meant to attach. In addition, the 

language of section 61-7-109 (2) , MCA, shows that the lab 

test result forms are not supplemental reports required 

under the statute: "The division [of motor vehicles] may 

require any driver of a vehicle involved in an accident of 

which report must be made as provided in this section to 
file supplemental reports whenever the original report is 

insufficient . . ." The lab test result forms are not 

addenda used to complete a prior insufficient report, nor 

were they required of a "driver of a vehicle involved in an 

accident." They are not "supplemental reports" and were not 

excludable by reason of section 61-7-114, MCA. 

Despite our conclusion that the lab report forms which 

were admitted were not required reports, we must still 

concern ourselves with cases cited by appellant which hold 

that that which goes into a report required by the Uniform 

Accident Reporting Act is as inadmissible as the report 

itself. Courts which so conclude generally follow the 

reasoning of cases such as Cooper v. State (Fla. Dist. Ct. App. 

"There can be no question but that the taking of the 

blood sample was intended as a part of the investigation for the purpose of completing the report, required of the officer. Further, it was at the insistence and request of the officer that the doctor 

took the blood sample. This blood sample formed a 

basis, or at least a portion of the basis for the 

officer's written report. If the report was inadmissible . . . then the information obtained by whatever method, if obtained for the purpose of making 

the report speak the facts, was inadmissible." (Emphasis in original.) 

We will not construe section 61-7-114, MCA, in the same 

manner as the Florida court. The reasoning of Cooper could, 

if taken to the limits of its logic, require the exclusion 

of any information, regardless of its source, which contributed 

to the completion of a required report. We cannot accept 

such a broad apnl-ication of the statutory exclusion. It has 

been held in Californiathat: 

"[The Vehicle Code] requires the driver of a vehicle 

involved in an accident . . . to cause a written 

report to be made . . . [and] provides that no such 

report shall be used as evidence in any trial arising 

out of such accident. But it was not a report so 

provided to be made that was offered . . . No 

evidence of the facts that occurred at the time of 

a vehicular accident is privileged. Only those 
reports are confidential which are so made by [the 

Code]. To make a statement privileged and inadmissible it must come within the express terms of 

the section." Stroud v. Hansen (1941), 48 Cal.App. 

2d 556, 559-560, 120 P.2d 102, 104. (Stroud also contained language relative to contributory negligence 

instructions. That language was "disapproved" in 

Cummings v. County of Los Angeles (1961), 56 Cal.2d 

258, 268, 363 P.2d 900, 906, 14 Cal.Rptr. 668, 674. 

The decision in Cumminqs did not involve the question 

of the admissibility of accident reports.) 

The fact that the accident victims had consumed alcohol 

was entered upon officer Coey's accident report. Although 

the exact figures from the lab tests were not written into 

Coey's report, the figures formed a basis for the completion 

of his report. (We note that plaintiff sought to have this 

required report admitted in spite of the reference to the 

consumption of alcohol. Defendants successfully prevented 

its admission by raising the statutory prohibition now in 

question. ) Even though the lab test results formed a portion 

of the basis for the completion of the officer's report, the 

lab test result forms were not required reports. We adopt 

the reasoning of the California court, and hold that lab 

reports of blood alcohol analyses are not inadmissible by 

reason of the prohibition of the Uniform Accident Reporting 

Act. 

Appellant argues that even if the Uniform Accident 

Reporting Act does not bar introduction of the results of 

the blood alcohol tests, the results were still inadmissible 

because they lacked a proper foundation. Appellant claims 

that the respondents: 

1. failed to show that post-mortem blood clotting did 

not result in a higher blood alcohol reading; 

2. failed to show that the procuring and testing of the 

samples followed the procedures set out in the Administrative 

Rules of Montana; 
3. failed to show the blood tested came from the victims ' 

bodies; and 

4. failed to produce the gas chromatograph records used 

to achieve the test results. 

A review of the testimony will aid in our resolution of 

this issue. 

Mortician Ray Fischer testified that he drew the Hofer 

sample. He knew that it was Hofer because of what he was 

told at the hospital and because he called the Hutterite 

colony at which Hofer had been raised for permission to 

embalm. He used the carotid artery and internal jugular 

vein and drew a sample from the right ventricle of the 

heart. He filled a 30 milliliter sample bottle with blood. 

No embalming had yet been done. The sample was drawn with a 

stainless steel tube that comes apart for sterilization. 

Fischer testified that the sample was a representative and 

uncontaminated sample, and that the blood serum had not 

separated from the cells. Fischer gave the sample to Highway 

Patrolman Richard Zaharko, who had waited in the funeral home 

lobby while the sample was drawn. Zaharko completed the 

forms that accompany the sample bottle, placed the bottle in 

the mailing container, and sealed and mailed the container. 

Mortician Leslie Patzer did not have an independent recollection of having drawn the McAlpine blood sample. 

However, he was the only person at his funeral home who took 

blood samples. He employed standard blood drawing procedures 

each time he drew blood. He was fairly certain that none of 

the disinfectant used to clean his instruments would have 

contaminated the McAlpine sample. Patzer also gave his 

sample to patrolman Zaharko . 

Patrolman Zaharko testified that he had picked up the 

samples from the morticians, received information from them 
necessary to fill out the forms, sealed the samples in the 

presence of the morticians, and mailed them to the lab. 

Richard Paulsen is a field health officer for the 

Montana Department of Health and is also a certified operatorsupervisor of gas chromatography. Paulsen testified generally 

as to procedures used in alcohol testing. He stated that 

the gas chromatography test can distinguish between different 

types of alcohol and can also distinguish substances such as 

embalming fluids. Paulsen stated that the sample bottles 

contain an anticoagulant which prevents clotting, but that 

if clotting occurred it would be broken up before testing. 

Paulsen tested the Hofer and McAlpine samples and found the 

blood alcohol contents to be .09 percent and .14 percent 

respectively. 

It was not until the testimony of these four witnesses 

was presented that the blood alcohol test results were 

admitted into evidence. We now turn to our analysis of what 

appellant urges to be the inadequacy of the foundation for 

the test results. 

First, appellant contends that respondents did not show 

that post-mortem blood clotting did not seriously affect the 

test results. Appellant brought no evidence to support this 

contention. Appellant did not challenge respondents' witnesses 

by reference to treatises which supported appellant' s theory 

as to changes in the blood alcohol content. At most, appellant 

laid the basis for a suggestion that a change in the blood 

of the victims occurred between the time of death and the 

time the blood was drawn. Such a suggestion goes to weight, 

not admissibility. The lapse of 9 to 12 hours between death 

and sampling, without proof of its effects, did not render 

the test results inadmissible. 
Appellant next maintains that respondents did not show 

that there was adherence to the procedures for blood testing 

outlined in section 16-2.26 (1) - S2600, Administrative Rules 

of Montana (ARM), (now section 23.3.931, ARM) . The procedures 

established in the administrative rules implement section 

61-8-405(6), MCA. That code section provides for the administration of blood tests of persons arrested for driving while 

under the influence of intoxicating liquor. Under section 

61-8-401, MCA, a presumption of being under the influence of 

alcohol may arise if a defendant's blood alcohol reaches a 

certain level. This presumption may be used in an effort to 

convict a person of the charge of driving while intoxicated. 

A criminal defendant is entitled to the procedural safeguards 

provided by the ARM before such a presumption is applied. 

It does not follow that the same safeguards must be employed 

when blood test results are used in a civil case. 

This is especially true where, as in the case before 

us, the statutory presumption was not relied upon. In Bach 

v. Penn Central Transportation Co. (6th Cir. 1974), 502 

F. 2d 1117, the court held that the statutory presumption of 

the "driving while under the influence" law did not apply in 

civil cases. That court went on to say that where the 

statutory presumption is not applied, ". . . evidence of 

blood alcohol concentration in appropriate cases should be 

received like any other expert testimony. The test procedures 

need not necessarily conform to those described in the 

statute, but they must accord with good practice in the 

field to assure reliable results." - Bach, 502 F.2d at 11-21. 

The testimony of respondents ' witnesses established that the 

procedures employed followed good practice in the field. We 

hold that it was not error to fail to prove compliance with 

section 23.3.931, ARM. 
The appellant's third contention on foundation, that 

there was a failure to prove that the samples came from the 

victims, consists of little more than a selective presentation 

of the testimony below. Both morticians had no doubt that 

the samples were from the victims of this accident. We find 

no merit in this argument. 

Finally, appellant maintains that she was harmed because 

the laboratory technician who tested the samples did not 

produce the graphs made by the gas chromatograph when he 

testified at trial. Appellant claims that this violates 

Rule 1002, M.R.Evid.: "To prove the content of a writing . . 

. the original writing . . . is required . . . except as 

otherwise provided by . . . these rules." The lab test 

result form was admitted into evidence. It was completed by 

the lab technician who first ran the test, ascertained the 

graph readings, and then completed the form. Thus, the 

results as written on the forms were copies of entries in 

the regular course of business. "A copy of an entry in the 

regular course of business consists of an entry in a writing 

kept in the regular course of business copied from another 

such writing by manual or mechanical means at or near the 

time of the transaction. " Rule 1001 (5) , M.R.Evid. The lab 

test result forms were admissible as copies in lieu of the 

graph under Rule 1003, M.R.Evid.: "A duplicate, or copy of 

an entry in the regular course of business as defined in 

Rule 1001(5), is admissible to the same extent as an original." 

Rule 1003 contains three exceptions to admission of a copy, 

none of which apply here. It was not error to allow the lab 

test result forms into evidence without the graph. 

In summary, we hold that none of the appellant's issues 

concerning improper foundation constitute error. 
We find that the District Court committed reversible 

error by submitting its contributory negligence instruction 

to the jury. The court's instruction no. 33 read as follows: 

"Under the law of the State of Montana, a passenger, 

or one who is riding in a motor vehicle driven by 

another may be guilty of contributory negligence 

in riding in an automobile which is driven by an 

individual under the influence of intoxicating 

liquor, if you find that the driver's intoxication 

contributed to some degree as a cause of the accident." 

The statement that the driver's (Hofer ' s) intoxication 

must have "contributed to some degree as a cause of the 

accident" totally fails to state the essential proximate 

cause element of contributory negligence. Before Montana 

adopted the doctrine of comparative negligence, this Court 

set down the rule that for contributory negligence to be 

available as a defense, the negligence of the plaintiff must 

have been - a proximate cause of the injury. Wolf v. Barry 

O'Leary, Inc., (1957), 132 Mont. 468, 318 P.2d 582; Dimich 

Company 

v. Northern Pacific ~ailwa~/(1959), 136 Mont. 485, 503, 348 P.2d 

786, 795; (Harrison, C.J. dissenting); Leichner v. Basile 

(1964), 144 Mont. 141, 394 P. 2d 742; Sztaba v. Great Northern 

Railway Company (1966), 147 Mont. 185, 411 P.2d 379. "Contributory negligence by definition in Montana includes 

'proximate cause', and this strict formula does not tolerate 

any less or remote 'contribution' by the plaintiff. Plaintiff's 

conduct must not only 'contribute' to the injury but must 

contribute -- as a 'proximate cause."' DeVerniero v. Eby (1972), 

159 Mont. 146, 152, 496 P.2d 290, 293. (Emphasis in original.) 

"We have always adhered to the strict formula of 'proximate 

cause'. No less formula will suffice to give the jury a 

correct instruction on contributory negligence. " Wolf, 318 P. 2d 

at 585. The misstatement of proximate cause misled the jury 

and thereby prejudiced the plaintiff. The fact that the 

jury was misled is brought out by an examination of the 
court's instruction no. 28. 

No. 28 stated that: 

"You are instructed that: 

"If you find that Michael Hofer was negligent, but that 

his negligence, if any, occurred without awareness of 

the danger, adding to existing peril, his conduct is 

said to concur with the defendants' negligence, if 

any, in proximately causing the loss. If you find 

that Hofer saw or should have seen the danger and 

negligently failed to avoid it, his conduct is held 

an unforeseeable, intervening cause (superseding 

cause) cutting off liability of the defendants." 

The jury foreman submitted the following question to the 

judge: "We have a question on instruction no. 28. If we 

agree Hofer should have seen the danger does that cut off 

liability of the defendants entirely?" The judge replied 

that " [ylou are not to single out any certain sentence or 

any individual point or instruction, and ignore the others, 

but you are to consider all the instructions as a whole, and 

to regard each in the light of all the others." The foreman's 

question indicates that the jury was concerned with the 

causal link of Hofer's conduct. While we do not criticize 

the district judge's response to the foreman's question, 

referring the jury to the other instructions would of course 

lead them to no. 33. That instruction allowed the jury to 

find the defendants not liable if Hofer's conduct "contributed 

to some degree as a cause of the accident." The jury was 

allowed to base their verdict upon a standard other than the 

true standard of proximate cause. Failure to properly state 

this essential and well-settled element of the defense of 

contributory negligence was prejudicial to the plaintiff and 

reversible error. 

We note for the benefit of the trial court that instruction 

no. 28 should not be given in a retrial of this case. It is 

both confusing and a misstatement of the law. We are unable 

to determine what the first sentence of the instruction is 
supposed to mean. The second sentence purports to be a 

statement of intervening cause, but it, like no. 33, fails 

to state that Hofer's conduct must have been a proximate 

cause of McAlpine's injuries. 

Plaintiff argued that she was entitled to sanctions because of an improper closing argument concerning the amount of 

the settlement with Dahl. The argument was not proper. The 

jury was instructed that it should not concern itself with 

the settlement as the court would take care of that if the jury 

found damages for the plaintiff. In the course of final argument, counsel for defendant stated that Roger Dahl had paid 

for his share of the accident and that should end it. Such 

argument went outside the instructions and should not be permitted in a retrial. 

The judgment is reversed and the cause remanded for a 

new trial. 

We concur: 

Chief Justice 1 

Justices 
Mr. Justice Frank B. Morrison, Jr., specially concurs to the 

majority opinion. 

I concur in the result. However, instruction no. 33 is 

defective for reasons not referred to in the majority opinion. 

The subject instruction allows the jury to find the passenger 

guilty of contributory negligence if the driver's intoxication 

contributed to the cause of the accident. This is not the law. 

A passenger can only be defeated if the passenger, knew or should 

have known, that the driver was intoxicated. The driver's intoxication, standing alone, cannot defeat recovery on the part of 

the passenger. 

The error in this instruction goes to the heart of this 

case and is highly prejudicial. The blood alcohol reading of 

the driver was found to be .09. Such a reading is in the "gray 

area". The driver may well have been under the influence of 

an intoxicant, but yet not give any indication of that influence 

to the passenger. The driver's impairment must be observable to 

a reasonably prudent person. If a reasonably prudent person would 

not be able to detect the driver's intoxicated state, then that 

person cannot be denied recovery on the basis of contributory 

negligence. It is obvious from the facts of this case that the 

jury could have found the driver to be under the influence and 

denied recovery to the passenger without the requisite finding 

that the passenger was himself guilty of failure to exercise 

reasonable care. 

In my opinion this instruction cannot be cured by changing 

its definition of "proximate cause". 

I concur in the special concurrence./ 
I join in the majority opinion, but also agree with 

Justice Morrison as to why it was error to give Instruction No. 33.