Simonson v. White

• Decision Date: 23 January 1986
• Docket Number: No. 85-51,85-51
• Citation: 220 Mont. 14,43 St.Rep. 133,713 P.2d 983
• Court: Montana Supreme Court
• Parties: Randy SIMONSON and Dave Rasmussen, Plaintiffs and Respondents, v. Kerry Eldon WHITE, et al., Defendants and Appellants.

Page 983

713 P.2d 983

220 Mont. 14

Randy SIMONSON and Dave Rasmussen, Plaintiffs and Respondents, v. Kerry Eldon WHITE, et al., Defendants and Appellants.

No. 85-51.

Supreme Court of Montana.

Submitted Oct. 8, 1985.

Decided Jan. 23, 1986.

Goetz, Madden & Dunn, William J. Madden, Jr., argued, Bozeman, for plaintiffs and respondents.

Keefer, Roybal, Hanson, Stacey & Jarussi, Calvin J. Stacey, argued, Billings, for defendants and appellants.

MORRISON, Justice.

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 Helena. 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--"Phillips' 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 but 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. Phillips' 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 defendant.

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 wanton 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 special 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 emergency" 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...