Cline v. Durden
| Citation | 803 P.2d 1077,246 Mont. 154 |
| Decision Date | 27 December 1990 |
| Docket Number | No. 90-266,90-266 |
| Parties | Leon CLINE, Plaintiff-Counterclaim Defendant and Appellant, v. Leo DURDEN, Defendant-Counterclaimant and Respondent. |
| Court | Montana Supreme Court |
Joseph R. Marra, Marra, Wenz, Johnson & Hopkins, Great Falls, and Daniel A. Boucher, Altman & Boucher, Havre, for plaintiff-counterclaim defendant and appellant.
Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, for defendant-counterclaimant and respondent.
Leon Cline appeals from a judgment entered in the District Court, Eighth Judicial District, Cascade County, awarding Leo (Tom) Durden $737,223. We affirm the District Court.
The issues raised by Cline are:
1. Whether the District Court erred in allowing Deputy Smrdel to give opinion testimony as to the cause of the accident.
2. Whether the District Court erred in allowing testimony and exhibits of Forest Service employees MacKay and Armstrong.
3. Whether the District Court erred in regard to introduction of Durden's military medical records and disability benefit application.
4. Whether the introduction of previously excluded medical conclusions constituted reversible error.
5. Whether the court erred in refusing several of Cline's instructions and special verdict form.
6. Whether the court erred in failing to rule on Cline's motion for a new trial.
Cline and Durden were involved in a head-on snowmobile collision on December 14, 1986. Cline and Durden were traveling in opposite directions on what is known as the Divide Road, near the summit of King's Hill Pass in the Little Belt Mountains. The trail at the area of the collision was wide enough to accommodate four snowmobiles. The orientation of the vehicles on impact and direction of travel by both parties was the central dispute at trial. Cline contended that Durden was cutting across the trail from his left to right when the impact occurred. Durden claimed it was Cline who angled from his right to the left, encroaching upon Durden's right-of-way. Durden, Cline and his companion, Ron Harmon, who was traveling a short distance behind Cline when the accident occurred, were the only witnesses to the accident. However, Durden has no memory of what occurred due to head trauma he suffered.
Both parties were injured in the impact. Cline was taken by ambulance to the hospital; Durden was airlifted by helicopter due to his critical condition. The accident scene was thereafter cleared of debris by onlookers to minimize hazards to other snowmobilers. Due to the failing light, investigation of the accident scene by the Cascade County Sheriff's Department and U.S. Forest Service was not conducted until the next morning. Sheriff's Deputy Dan Smrdel prepared his report with the aid of a quick response unit representative, Dick Mosher, who had witnessed the accident scene shortly after the accident the previous evening, and Forest Service employees Armstrong and MacKay. From the remaining physical evidence, such as gasoline spill and small debris, and from Mosher's observations, the evening before, Smrdel prepared his report, which included diagrams, measurements and written explanation.
Cline commenced this action on December 9, 1988, claiming negligence on the part of Durden. On February 2, 1989, Durden answered and counterclaimed. Trial commenced on November 27, 1989 and was concluded on December 6, 1989. The jury returned a special verdict, concluding Cline to be solely negligent and awarded Durden $737,223 in damages. This appeal resulted.
Cline asserts the lower court erred in allowing Deputy Sheriff Dan Smrdel to testify as to the cause of the accident. Prior to trial, Cline made a motion in limine to exclude any testimony from Smrdel as to the cause of the collision, as well as an accident report and diagram of the scene prepared by Smrdel the morning after the accident. Cline stated that Smrdel lacked the adequate training in accident reconstruction and did not conduct a thorough enough investigation to render an opinion as to cause.
At the pretrial conference, the court stated it was inclined to grant Cline's motion in limine to exclude Deputy Smrdel's testimony, based upon opposing counsel's failure to file a reply brief as required under Uniform District Court Rule No. 2. Thereafter, Durden filed a motion to reconsider on the grounds that the failure to file a reply brief had simply been an oversight.
Just prior to opening statements, the court, in camera, stated it would reserve a ruling on the admissibility of opinion testimony by Deputy Smrdel. Over the objections of counsel for Cline, the court thereafter allowed Smrdel to render an opinion as to the cause of the accident, stating that:
... [H]e's laid foundation for his qualifications. He went to basic training school at the Montana Law Academy and went back there for a two-week course put on by the Northwest Traffic Institute, and then went back on other occasions.
Neither Cline's claim of surprise nor insufficient foundation has merit. Being trained in accident reconstruction, Deputy Smrdel was qualified to give his opinion of the accident's cause. Under the Montana Rules of Evidence, the trial court is given wide latitude in determining whether to admit opinion testimony of investigative officers. Simonson v. White (1986), 220 Mont. 14, 713 P.2d 983. Leeway is allowed in such instances, and provided that the cross-examiner is given adequate opportunity to elicit any assumptions or facts underlying the expert's opinion, the weight to be given the testimony is for the trier of fact to determine. Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364. Given the foundation cited by the court, the early inclusion of Deputy Smrdel as an expert witness, and the availability to Cline of all reports and diagrams prepared by Smrdel, we find no error in allowing his opinion testimony.
Error is also asserted as to the testimony of Douglas MacKay and James Armstrong. Rangers MacKay and Armstrong were stationed nearby at the King's Hill Ranger District Station, and accompanied Deputy Smrdel and ski patrolman Dick Mosher to the accident scene the next morning. With the aid of Mosher, who had responded to the accident the previous evening, the parties determined the point of impact and the final resting spots of Cline and Durden. Relying upon Mosher's observations and evidence such as snowmobile debris and blood, Armstrong took photographs depicting the impact area and the resting positions of Cline and Durden. In addition, MacKay prepared a diagram based on observations and measurements.
Cline contends the court erred in allowing the testimony and exhibits of Armstrong and MacKay. However, counsel for Cline did not object to either the photographs or the diagram when offered into evidence. Investigative reports prepared by Armstrong and MacKay were never offered nor admitted into evidence. MacKay was asked to refer to his report, first on cross-examination by Cline's counsel, and then on redirect by Durden's counsel. On redirect, the following dialogue occurred:
After the jury had been impanelled, counsel had met in chambers to discuss proposed amendments to the pretrial order. Counsel for Durden wished to present the photographs, diagrams and reports of MacKay and Armstrong, all recently discovered. Counsel for Cline objected on the basis of timeliness and inadmissable opinion testimony. After discussion, Cline's counsel agreed to stipulate to the photographs, but renewed objections to the written reports, due to the unsubstantiated opinions within. The court reserved any ruling upon the reports.
Clearly, an opinion as to the cause of the accident was elicited of and rendered by Durden's own witness. No ruling was made by the court, nor was any objection renewed. We find that Cline's objection in chambers was sufficient to preserve it for purpose of review on appeal. However, we find no error in the testimony, as counsel for Cline was first to delve into the subject matter of the report on cross-examination:
. . . . .
Rule 106, Montana Rules of Evidence, states in part:
(a) When part of an act, declaration, conversation, writing or recorded statement or series...
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