### 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 JudicialDistrict, 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: 

## SEP29

# 198Q Submitted: June 9, 1981 Decided: September 28, 1.981



# -ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

~aniel McAlpine was killed inan 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 allthree defendants inMay 1977. Nancy McAlpine appealed, and thisCourt reversed the orders granting summary judgment. Dahl settledwith McAlpine, and trialwas had as tothe remaining defendants inNovember 1979. On December 

### 1, 1979, the jury returned verdicts forMidland Electric Company and the Stateof Montana. Plaintiff McAlpine filed combined motions to 

### set aside the jury verdict and for a new trial on the issue of damages only. The districtjudge refused to grant the relief sought by McAlpine, and she appeals. Wereverse. On Sunday, April 27, 1975, Arthur Krueger 

### was driving a one-ton pickup with a gooseneck fifthwheel trailer westward

on a two-lane stretchof Highway 89 near GreatFalls, Montana. Krueger was a job foreman forMidland Electric Company of Billings, Montana, and the vehicles belonged toMidland. At about 9:30 p.m., a wheel came off of the leftside of the trailer. The 

### trailer was immobilized and blocked the westbound lane of traffic. Krueger had no warning devices, butwas 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 Servicedispatched a vehicle. Coey stayed on the scene for about one-half hour, but leftbefore thewrecker arrived. Coey didnot place any warning devices upon the highway, but gave Krueger two fusees before departing. He leftinorder to assista fellow officer inthe apprehensionof 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 feeteastof where 

### it had come to

### rest. Dahl hooked his wrecker to the leftrear of the trailer (the sidewithout wheels). This put the Dahl wrecker inthe westbound lane of traffic but facing inan easterly direction. Dahllsclearance lights, four-way flashers, rotating beacon and work lightwere allinoperation. The Midland vehicle's clearance lights and flasherswere on. There were fusees and reflectors on the roadway to the east. Ronald Mammen, Dahlls stepson, was standing inthe highway alongside the trailer holding a flashlightwith a yellow hazard lighton top. Dahl began towing the disabled fifthwheel trailer in

an easterlydirection but inthe westbound lane. Krueger

was inthe pickup, driving 

### it inreverse. They 

### were traveling ata very slow speed. Atthis time the vehicle owned by Daniel McAlpine approached the scene. McAlpine was a farmer/rancher from Sunburst, Montana. He had spent the day atStanford, 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. Hehad 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 atdifferent locations inStanford after the bull sale. Two other witnesses testified that the McAlpine vehicle passed them ata high rate of speed and was being driven inan erraticmanner. Roger Dahl and Ronald Mammen testified that theMcAlpine vehicle approached the disabled vehicle ata high rate of speed and did not appearto slow down. When the McAlpine vehicle reached the wrecker, 

### itpassed to the right of 

### itbut struck the right rear
corner of theMidland 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 inthe vehicle. Hofer's blood alcohol levelwas

Nancy McAlpine brought suitand judgment was eventually entered for defendants Midland Electric Company and the State of Montana. Because we arereversing the judgment, we 

### willonly address those issues that are likely to reemerge if the case 

### isretried: 1. Was 

### it error to admit the blood alcohol tests of Hofer and McAlpine? 

### 2. Were the results of the blood alcohol tests inadmissiblebecause their proponents failed to establish 

### a foundation which would assure their trustworthiness? 3. Did the DistrictCourt 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. ThatAct contains the following language atsection 61-7- 

### 114, MCA: "Accident reports confidential, (1)Allrequired accidentreports and supplemental reports shall be without prejudice to the individual so reporting and shallbe for the confidential use of the division or other stateagencies having use for the records for accident prevention purposes, or for the administration of the laws of this staterelating to the deposit of security and proof of financialresponsibility by persons driving or the owners of motor vehicles, except that the divisionmay disclose the identity of a person involved inan accident when such identity 

### is not otherwise known orwhen such person denies hispresence at such accident.

### "(2) All accident reports and supplemental information filed asrequired by thispart shallbe 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, asrequired by this part, may be examined by any person named in such report or reports orby any driver, passenger, or pedestrian involved inthe accident orby 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 shallbe 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 tohave 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 toprove 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 accidentvictims

were brought before the jury inthe form of the laboratory analysis reports of both theMichael Hofer and Daniel McAlpine blood samples. Appellant did not raise the prohibitory language of section 61-7-114, MCA, inher objection to the admission of these reports. Normally, the party complaining of errormust stand or fallupon the ground relied upon in the trial court and objectionswhich areurged for the first time on appeal 

### willnot be considered by this Court. Bower


### v. Tebbs (1957), 132Mont. 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 litigantof

a fairand impartial trial, even if the parties ignored the mandate of a statuteor an established precedent. Halldorson

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

v. Comet Corp. (1977), 175Mont. 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 intoevidence despite the lack of a specificreference to the statutein the objection. Inorder todetermine if the appellant has been denied substantial justice, 

### wewillconsider 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 arenot 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 discloserelates solely to the testing of blood from an individual. The forms do not provide forreference to the occurrence of an accidentor the conditions existing atthe time of the

occurrence of an accident. Further, the forms contain a "Notification of Rights" which states inpart that: "Prior tomy 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 ina court of law. 

### 4. That any admissions I 

### make, or any information contributed by me, may be used againstmy interestina court of law." The "Notification of Rights" clearly indicates that the lab 

### test form 

### isnot a required report towhich a guarantee of confidentialitywas meant to attach. Inaddition, the language of section 61-7-109 (2)

## , MCA, 

### shows that the lab test result forms arenot supplemental reports required under the statute: "The division [of motor vehicles] may require any driver of a vehicle involved inan accident of which reportmust be made asprovided inthis section tofile supplemental reportswhenever the original report 

### is insufficient

# . .." The lab testresult forms are not addenda used to complete a prior insufficient report, nor
were they required of a "driver of 

### a vehicle involved inan accident." They arenot "supplemental reports" and were not excludable by reason of section 61-7-114, MCA. Despite our conclusion that the labreport forms which

were admitted 

### werenot required reports, we must 

### still

concern ourselves with cases cited by appellantwhich hold that thatwhich goes intoa report required by the Uniform Accident Reporting Act 

### isasinadmissible asthe report itself. Courts which so conclude generally follow the reasoning of cases such asCooper 

### v. State (Fla. Dist. Ct. App.

"There can be no questionbut that the taking of the blood sample 

### was intended asa part of the investigation for the purpose of completing the report, 

### required of the officer. Further, 

### itwas atthe insistence and request of the officer that the doctor took the blood sample. This blood sample formed a basis, or atleasta 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 inoriginal.) We 

### willnot construe section 61-7-114, MCA, inthe same
manner as the Florida court. The reasoning of Cooper could, if taken to the 

### limitsof 

### its logic, require the exclusion of any information, regardless of 

### its source, which contributed to the completion of a required report. Wecannot accept such a broad apnl-icationof the statutory exclusion. Ithas been held inCaliforniathat: "[The Vehicle Code] requires the driver of a vehicle involved inan accident

# . . . to cause a written report tobe made 

# . . . [and] provides that no such report shall be used 

### as evidence inany 

### trial arising outof such accident. But 

### itwas not a report so provided tobe made thatwas offered

# . .. No evidence of the facts thatoccurred atthe 

### timeof a vehicular accident 

### isprivileged. Only thosereports are confidential which are so made by [the Code]. To make a statementprivileged and inadmissible 

### itmust come within the express terms of the section." Stroud v. Hansen (1941), 48 Cal.App. 2d 556, 559-560, 120P.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, 

### 14Cal.Rptr. 668, 674. The decision inCumminqs 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 thatplaintiff sought to have this required report admitted in spiteof the reference to the consumption of alcohol. Defendants successfullyprevented 

### its admission by raising the statutoryprohibition 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 arenot 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 thatpost-mortem blood clotting did not result ina higher blood alcohol reading; 2. failed to show that the procuring and testing of the samples followed the procedures setout in the Administrative Rules of Montana;

### 3. failed to show the blood tested came from the victims

### ' bodies; and 

### 4. failed toproduce the gas chromatograph records used toachieve the 

### test results. A review of the testimony 

### willaid inour resolution of this issue. Mortician Ray Fischer testified that he drew the Hofer sample. Heknew that 

### it

### was Hofer because of what he was told atthe hospital and because he called the Hutterite colony atwhich Hofer had been raised forpermission to embalm. Heused the carotid artery and internaljugular vein and drew a sample from the rightventricle of the heart. He filleda 30 

### milliliter sample bottle with blood. No embalming had yetbeen 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 toHighway 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 LesliePatzer did not have an independent recollection of having drawn theMcAlpine blood sample. However, he was the only person athis funeral home who took blood samples. He employed standard blood drawing procedures each 

### timehe drew blood. He was fairly certain thatnone of the disinfectant used to clean his instrumentswould have contaminated the McAlpine sample. Patzer also gave his sample topatrolman Zaharko

# . Patrolman Zaharko testified thathe had picked up the samples from themorticians, received information from themnecessary to fillout the forms, sealed the samples inthe presence of themorticians, and mailed them to the lab. Richard Paulsen 

### isa fieldhealth officer for the Montana Department of Health and 

### is also a certified operatorsupervisor of gas chromatography. Paulsen testified generally

astoprocedures used inalcohol 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 

### itwould be broken up before testing. Paulsen tested the Hofer and McAlpine samples and found the blood alcohol contents tobe .09 percent and 

### .14 percent respectively. Itwas not until the testimony of these four witnesses

was presented that the blood alcohol 

### test results were admitted into evidence. Wenow turn to our analysis of what appellanturges tobe the inadequacy of the foundation for the 

### test results. First, appellant contends that respondents did not show thatpost-mortem blood clotting did not seriously affect the testresults. 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 inthe blood alcohol content. Atmost, appellant laid the basis for a suggestion that a change inthe blood of the victims occurred between the 

### timeof death and the time the blood was drawn. Such a suggestion goes toweight, not admissibility. The lapse of 9 to 12hours between death and sampling, without proof of 

### its effects, did not render the 

### test results inadmissible.Appellant next maintains thatrespondents did not show that there was adherence to the procedures forblood 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 drivingwhile 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 

### isentitled 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 areused in a civil case. This 

### is especially true where, as in the case before us, the statutorypresumption was not relied upon. InBach

v. Penn Central Transportation Co. (6thCir. 1974), 502 F.2d 1117, the court held that the statutorypresumption of the "driving while under the influence" law did not apply in civil cases. That courtwent on to say thatwhere the statutorypresumption 

### isnot applied, 

# ".

. . evidence of blood alcohol concentration inappropriate cases should be received like any other expert testimony. The 

### test procedures need not necessarily conform to those described inthe statute, but they must accord with good practice inthe field toassure reliable results." 

# - Bach, 502 F.2d at11-21. The testimony of respondents

## ' witnesses established that the procedures employed followed good practice in the field. We hold that 

### itwas 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 toprove that the samples came from the victims, consists of littlemore 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 

### meritin this argument. Finally, appellantmaintains 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 attrial. Appellant claims that thisviolates Rule 1002, M.R.Evid.: "To prove the content of a writing 

# . .

. the original writing 

# . 

# . . isrequired 

# .

# . . except as otherwise provided by 

# .

# . . these rules." The lab 

### test result form was admitted into evidence. Itwas completed by the lab technician who firstran the 

### test, ascertained the graph readings, and then completed the form. Thus, the results aswritten 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 ina writing kept in the regular course of business copied from another such writing by manual ormechanical means ator near the 

### timeof the transaction.

### " Rule 1001(5)

## ,M.R.Evid. The lab 

### test result forms 

### were admissible ascopies inlieu of the graph under Rule 1003, M.R.Evid.: "A duplicate, or copy of

an entry inthe regular course of business asdefined in Rule 1001(5),

### is admissible to the same extentas an original." Rule 1003 contains three exceptions to admission of a copy,
none of which apply here. Itwas not error toallow the lab test result forms intoevidencewithout the graph. In summary, 

### we hold thatnone of the appellant's issues concerning improper foundation constituteerror.We find that the DistrictCourt 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 

### isriding ina motor vehicle driven by another may be guiltyof contributory negligence inriding inan automobile which 

### isdriven 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 essentialproximate

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), 132Mont. 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), 

### 144Mont. 141, 394 P.2d 742; Sztaba v. Great Northern Railway Company (1966), 

### 147Mont. 185, 411P.2d 379. "Contributory negligence by definition inMontana 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 injurybutmust contribute 

### -- asa 'proximate cause."' DeVerniero v. Eby (1972), 159Mont. 146, 152, 496 P.2d 290, 293. (Emphasis inoriginal.) "We have always adhered to the strictformula of 'proximate cause'. No less formula 

### will suffice to give the jury a correct instructionon contributory negligence.

### " Wolf, 318 

### P.2d at585. The misstatement of proximate cause misled the jury and thereby prejudiced the plaintiff. The fact that the jury was misled 

### isbrought outby an examination of thecourt's instruction no. 28. No. 28 stated that: "You are instructed that: "If you find thatMichael Hofer was negligent, but that his negligence, if any, occurred without awareness of the danger, adding toexisting peril, his conduct 

### is said to concur with the defendants' negligence, if any, inproximately causing the loss. If you find that Hofer saw or should have seen the danger and negligently failed to avoid 

### it, his conduct 

### isheld an unforeseeable, intervening cause (superseding cause) cutting off liabilityof 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 cutoff liability of the defendants entirely?" The judge replied that "[ylou arenot to single outany certain sentence or any individual point or instruction, and ignore the others, butyou are to consider allthe instructions as a whole, and to regard each inthe lightof 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 districtjudge'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 ina retrial of this case. It

### is both confusing and a misstatement of the law. We areunable todetermine what the firstsentence of the instruction 

### issupposed tomean. The second sentence purports tobe a statement of intervening cause, but 

### it, likeno. 33, fails to state thatHofer's conductmust have been a proximate

cause of McAlpine's injuries. Plaintiff argued that shewas entitled to sanctions because of an improper closing argument concerning the amount of the settlementwith Dahl. The argument was not proper. The jury was instructed that 

### it should not concern itself with the settlement as the courtwould 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 forhis share of the accident and that should end 

### it. Such argument went outside the instructions and should not be permitted ina retrial. The judgment 

### isreversed and the cause remanded for a
new trial.

We concur:

Chief Justice 1

JusticesMr. Justice Frank B. Morrison, Jr., specially concurs to the majority opinion.

I concur inthe result. However, instruction no. 33 

### is defective for reasons not referred to inthe majority opinion. The subject instruction allows the jury to find the passenger guiltyof contributory negligence if the driver's intoxication contributed to the cause of the accident. This 

### isnot 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 defeatrecovery on the part of the passenger. The error 

### inthis instructiongoes to the heart of this

case and 

### ishighly prejudicial. The blood alcohol reading of the driver was found tobe .09. Such a reading 

### is inthe "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 tobe under the influence and denied recovery to the passenger without the requisite finding that the passenger was himself guilty of failure toexercise reasonable care. Inmy opinion this instruction cannot be cured by changing itsdefinitionof "proximate cause".

I concur inthe special concurrence./

### I 

### join in the majority opinion, but also agree with Justice Morrison as to why itwas error to give Instruction No. 33.