                                      No. 12270

         IN THE SUPREME COURT OF THE STATE OF M N A A
                                               OTN

                                          1972



JESSIE A. STEPHENS, E x e c u t r i x of t h e
E s t a t e o f F r a n k l i n P , S t e p h e n s , Deceased,

                              P l a i n t i f f and Respondent,

         -vs   -
GLEN BROWN,

                              Defendant and A p p e l l a n t .



Appeal from:          D i s t r i c t Court of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
                      Honorable Robert C. Sykes, Judge p r e s i d i n g .

Counsel of Record:

      For Appellant:

               M a r s h a l l H. Murray a r g u e d , K a l i s p e l l , Montana.
               Joseph F. Daley, K a l i s p e l l , Montana.

     For Respondent:

               Korn, Warden, W a l t e r s k i r c h e n and C h r i s t i a n s e n ,
                K a l i s p e l l , Montana.
               Merrit N. Warden and Gary R.. C h r i s t i a n s e n a r g u e d ,
                Ka l i s p e l l , Montana.



                                                   Submitted:          October 1 7 , 1972
M r , J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court,

        This i s an appeal from a judgment notwithstanding a v e r d i c t ,
which judgment was granted on t h e i s s u e of l i a b i l i t y with damages
t o be determined on a new t r i a l .             P l a i n t i f f brought t h e a c t i o n i n
Flathead County i n t h e eleventh j u d i c i a l d i s t r i c t t o recover
s p e c i a l , general and p u n i t i v e damages a g a i n s t defendant on two
counts, survivorship and wrongful death.                       Punitive damages were
withdrawn during t r i a l .         The j u r y rendered a v e r d i c t f o r defendant.
Subsequently, p l a i n t i f f moved f o r judgment notwithstanding t h e
v e r d i c t and f o r a new t r i a l .    The c o u r t ordered judgment entered
a g a i n s t t h e defendant on t h e i s s u e of l i a b i l i t y , and s e t t h e
i s s u e of damages f o r t r i a l ,
        O June 21, 1970, a t 9:50 p,m,, on Whitefish Lake, a c o l l i -
         n
s i o n occurred between two outboard motor boats.                        The sun had
j u s t s e t b u t i t was s t i l l d a y l i g h t , v i s i b i l i t y was good, t h e
l a k e was calm and t h e weather c l e a r .
        One of t h e b o a t s was owned by Frank Stephens, t h e o t h e r
by Glen Brown.          Stephens and Brown were next door neighbors
on t h e lake.       The Stephens boat was a 14' f i b e r g l a s Glastron,
powered by a 55 H,P. Evinrude.                  I t had a l i t t l e over a f o o t of
freeboard; pushbutton e l e c t r i c c o n t r o l s ; and two bucket s e a t s
facing t h e f r o n t , which were divided by a deep console.                        The
s t e e r i n g wheel was on t h e r i g h t ; a s were t h e s h i f t c o n t r o l s and
throttle.
        The Brown boat was a 17' aluminum Flying C r e s t , powered by
an 85 H.P.      Evinrude.        I t was higher o f f t h e water than t h e
Stephens boat and had s i m i l a r c o n t r o l s .         It had bench type s e a t s ,
a f r o n t one and two s i d e s e a t s .
        A f t e r an afternoon of golf and a               at her's day evening
barbecue, Glen Brown and t h r e e g u e s t s went f o r a c r u i s e on t h e
lake.     They had had c o c k t a i l s e a r l i e r and one of t h e i r number
took t h e b o t t l e of bourbon along.             Driving t h e boat was Glen
Brown.      A f t e r they had c r u i s e d up t h e l a k e , Brown increased h i s
speed on h i s r e t u r n t o about 25 miles per hour.                   The occupants
were watching t h e scenery and a c t i v i t i e s ashore.
       The Stephens boat had j u s t s t a r t e d a t r i p up t h e lake.
Frank Stephens was d r i v i n g , h i s wife s e a t e d i n t h e bucket s e a t
t o the l e f t .     Mrs. Stephens could n o t o p e r a t e t h e boat.              She
t e s t i f i e d t h a t Frank noticed t h e r e a r l i g h t was f l i c k e r i n g .
He pushed t h e n e u t r a l b u t t o n on      t h e c o n t r o l s and, asking h i s
wife t o hold t h e s t e e r i n g wheel, went t o t h e r e a r n e a r t h e l i g h t .
Mrs. Stephens remained s e a t e d i n t h e passenger's s e a t opposite
t h e c o n t r o l s and o u t of t h e i r reach.      She t e s t i f i e d t h a t t h e
boat was i n n e u t r a l and dead i n t h e water o r j u s t d r i f t i n g .
       A eyewitness, on shore and f a r enough
        n                                                           away from t h e
scene t h a t he could n o t s e e people, t e s t i f i e d the Stephens b o a t
                             1t
was moving "slow";                wasn't throwing a wake";           odera rate speed,
two miles an hour maybe. J u s t b a r e l y going along, b a r e l y cruising";
"moving but i t wasn't dead",
       While Frank Stephens was i n t h e r e a r of h i s boat f i x i n g
t h e l i g h t , Mrs. Stephens was enjoying t h e scenery.                    She observed
a l a r g e boat t r a v e l i n g a t a high r a t e of speed, b u t gave no
thought t o i t .        L a t e r she again observed t h e Brown boat t r a v e l i n g
towards them a t high speed, but she was n o t concerned because
they were c l e a r l y v i s i b l e and t h e r e was ample opportunity f o r
t h e o p e r a t o r t o t u r n t o avoid them.       But, she next saw t h e Brown
boat bearing down on h e r husband and h e r s e l f from a s h o r t d i s t a n c e
and r e a l i z e d t h a t i t s operator had n o t seen them.              She stood up
and screamed, i n a v a i n e f f o r t t o a t t r a c t t h e a t t e n t i o n of Brown,
       The Brown boat never saw t h e Stephens boat and s t r u c k i t ,
t h e p o i n t of c o n t a c t about midship on t h e r i g h t s i d e .        The Brown
boat s t r u c k with such an impact a s t o go completely up and over
t h e Stephens b o a t , s t r i k i n g Frank Stephens on the head and body
and knocking him out of t h e boat i n t o t h e water, where he d i e d
from drowning.           One passenger i n t h e Brown boat was thrown i n t o
t h e water.        The Brown boat r i g h t e d i t s e l f and was a b l e t o pick
up i t s passenger from t h e water.               Frank ~ t e ~ h e n s ~ b o d y r e -
                                                                             was
covered the next day.   Mrs. Stephens was bruised in the collision
and Brown and one of his passengers were injured.
     Mrs. Stephens brought this action as executrix of the estate
of Frank Stephens.
     The issues on appeal are:
     1, Did the court err in denying defendant the defense of
contributory negligence?
     2.   Did the court err by granting judgment notwithstanding
the verdict on the question of liability?
     3.   Did the court err in denying defendant's motion for
summary judgment and motions to dismiss or for nonsuit or
directed verdict and thus allow the survivorship claim to go
to the jury?
     4.   Did the court err in denying defendant's offers of
proof:
     (a) To the question of admission of the deceased's will?
     (b) To the question of instantaneous death and appreciable
period of time?
     Directing our discussion to issues 1 and 2 together, we
shall attempt to set up the problem without giving all the
details of efforts to amend the pleadings, rulings on evidence,
instructions given, and even tactics of counsel. Suffice it to
say that the issue of contributory negligence on the part of
the deceased Frank Stephens and the plaintiff, his widow and
beneficiary of his estate, was permitted in the case.   Substan-
tially for this reason the trial judge granted the motion for
judgment notwithstanding the verdict on the issue of liability.
In other words, he held finally, as a matter of law, that the
sole proximate cause of the death of Frank Stephens was the
negligence of defendant Brawn.
    Appellant, defendant Brown, contends on appeal that the
evidence presented was sufficient to establish a fact question
for the jury on contributory negligence of deceased Frank
Stephens, for having abandoned his controls to his wife who
knew nothing about operating a boat and f a i l i n g t o keep a proper
lookout.      Defendant a l s o urges t h a t p l a i n t i f f took no evasive
a c t i o n a f t e r observing ~ r o w n ' sboat and d i d n o t warn h e r husband
i n time.
        Here we have a wide open l a k e , stephensf boat d r i f t i n g o r
moving very slowly, a scene duplicated thousands of times y e a r l y
i n any c r u i s i n g o r f i s h i n g scene,     The occupants i n a t t e n t i v e .
They might be f i s h i n g , sunbathing, o r merely t i n k e r i n g with a
l i g h t , a s here.    Coming a t them a t high speed, a boat under
considerable power, i t s d r i v e r and occupants                 not looking ahead
a t what i s p l a i n l y v i s i b l e with a wanton d i s r e g a r d f o r t h e
s a f e t y of o t h e r s , smashes i n t o them,        The s o l e proximate cause
a s a matter of law i s t h e negligence of t h e b l i n d l y speeding
boat.     Defendant urges right-of-way r u l e s , maritime law, and
t h a t a f a c t question e x i s t s ; b u t i t simply does n o t a s t o t h e
s o l e proximate cause of t h e accident.
        Our conclusion, a s was t h a t of t h e t r i a l c o u r t , does n o t
r e q u i r e us t o d i s c u s s whether o r n o t t h e c o n t r i b u t o r y negligence
of a b e n e f i c i a r y would be a b a r t o recovery.           W make t h e comment
                                                                     e
only because defendant's b r i e f on appeal dwells a t length on
the subject.
        Before i t i s proper t o submit t h e question of c o n t r i b u t o r y
negligence t o t h e j u r y , t h e r e must be evidence n o t only i n d i c a t i n g
                                                                                 )   d&:lc# q:<   &

negligence on t h e p a r t of p l a i n t i f f b u t a l s o t h a t such evl; en e
                                         1

contributed a s a proximate cause t o t h e accidentand r e s u l t i n g
injuries.       DeVerniero v. Eby,                 M nt
                                                    o     .       , 496   P.2d 290,
29 St.Rep.      273, and c a s e s c i t e d t h e r e i n ,
        Defendant c i t e s Sullivan v.John Doe,                      Mont ,         , 495
P.2d 193, 29 St.Rep, 190, f o r t h e p r o p o s i t i o n t h a t before a
p l a i n t i f f can recover he must show t h a t he exercised h i s i n t e l l i -
gence t o discover and avoid t h e danger which he a l l e g e s was
brought about by t h e negligence of defendant.                       However, except
t h a t t h e p o s i t i o n s of p l a i n t i f f and defendant a r e reversed,
S u l l i v a n supports our holding here.               There, a p o l i c e c a r d r i v e r
was h e l d a s a matter of law t o have seen a parked c a r on t h e
s t r e e t c l e a r l y v i s i b l e , i f he had looked,
       Defendant a l s o c i t e s Hoffman v , Herzog,                  158Mont.        296,
491 P,2d 713, 28 St.Rep.1009,                and S h i e l d s v. Murray, 156 Mont,
493, 481 P. 2d 680, f o r t h e proposition t h a t a case should n o t
be withdrawn from a jury where reasonable and fair-minded men
could reach opposite conclusions. I n each c a s e , t h e r e was con-
f l i c t i n g evidence and we declared we were unable t o say t h a t t h e
evidence permitted but one i n f e r e n c e ; and t h a t a j u r y question
was posed.       However, a s we h e r e t o f o r e have described t h e f a c t s
h e r e , t a k i n g t h e f a c t s i n defendant's view---they             lead t o but
one conclusion.
       I n i s s u e 3, defendant's contention goes to t h e survivorship
claim,     That i s , defendant urges t h a t t h e death of Frank Stephens
was instantaneous and t h e r e f o r e t h e r e was no b a s i s f o r an a c t i o n
based upon h i s surviving h i s i n j u r i e s , under t h e provisions of
s e c t i o n 93-2824, R.C.M.       1947,      The i s s u e ,was r a i s e d by defendant
b e f o r e t r i a l by motion f o r summary judgment and during t r i a l
by motion f o r nonsuit o r d i s m i s s a l and by motion f o r d i r e c t e d
verdict,      O each occasion defendant was denied r e l i e f ,
               n
       The evidence e s t a b l i s h e d t h a t Frank Stephens received
m u l t i p l e s e r i o u s i n j u r i e s t o h i s head, neck and body when
s t r u c k by t h e Brown boat while he was s t i l l i n h i s own b o a t ,
He was then propelled by f o r c e i n t o t h e water where he d i e d
from drowning.         A p a t h o l o g i s t t e s t i f i e d from h i s f i n d i n g s on
autopsy t h a t t h e i n j u r i e s , though s e r i o u s , would n o t by them-
s e l v e s have caused death,          He f u r t h e r t e s t i f i e d t h a t t h e death
could r e s u l t "within a few seconds o r a couple of minutes".
A s defendant d e s c r i b e s i t h e r e , t h e deceased died from drowning
while unconscious, obviously without s t r u g g l e , pain o r anguish.
       On t h e o t h e r hand, p l a i n t i f f s t a t e s t h a t s i n c e Stephens
died from drowning, he survived h i s i n j u r i e s f o r an appreciable
length of time.
        Section 93-2824, R,C.M, 1947, provides in pertinent
part :
         An action * * * shall not abate by death * * *
        It

        but shall in all cases, where a cause of action
        or defense arose in favor of such party prior to
        his death * * *survive, and be maintained by his
        representatives or successors in interest * * *I1.
        In the year 1909, this Court speaking through Mr. Justice
Holloway, in discussing a similarly worded survival statute
contained in the fellow servant statute passed in 1907, (now
section 41-110, R.C.M. 1947), in the case of Dillon v. Great
Northern Ry, Co., 38 Mont, 485, 496, 100 P. 960, had this to
say :
        "With these elementary principles before us the
        question recurs, Is it possible for one who is
        instantly killed to have a cause of action for the
        wrong which caused his death? The very statement
        of the question would seem to suggest its own
        answer. Since there is not any appreciable length
        of time between the wrong and the death, or in
        other words, the wrong and the death being coinci-
        dent in point of time, the instant the wrong is
        committed the victim of the wrong has ceased to
        exist, and it seems impossible that there is any
        cause of actian in favor of such victim, This
        conclusion seems inevitable when the elements which
        are considered in determining the measure of damages
        are taken into account. Those elements are physical
        and mental pain and suffering, expense of medical
        attendance, loss of time, and decreased earning
        capacity. In the case of instant death every one
        of those elements is absent. To presume the existence
        of any one of them is to presume that life did not
        become extinct until some appreciable time had
        elapsed after the wrong was committed, a fact which
        is negatived by the agreed statement of facts in this
        case.
        Justice Holloway put forth the instant death and surviva1
for an appreciable time language applied since that time.     In
Welch v, Nepstad, 135 Mont. 65, 337 P.2d 14, the deceased was
severely bruised over the right eye and temple, bruised on the
chest, back, upper arms and hand; the truck he was riding in
was thrown into about two and one-half feet of muck, slime and
water in a sump hole beside the road; and, death was by drowning.
There a doctor testified, in his opinion, that five to seven
minutes elapses for death to occur in drowning. This Court
held such evidence was sufficient to show survival for an
appreciable length of time.
        Defendant h e r e s t a t e s t h a t Welch passes over t h e s p e c i f i c
question,        I n f a c t , i t d i d not "pass over i t " but h e l d squarely
                                                                   I1
t h a t such evidence was s u f f i c i e n t t o show a                s u r v i v a l f o r an
a p p r e c i a b l e period of time."       W s e e no reason t o d e p a r t from
                                              e
t h a t r u l i n g and f i n d no merit i n i s s u e 3 .
        I n i s s u e 4 , defendant claims e r r o r on t h e p a r t of t h e
t r i a l c o u r t i n r e f u s i n g t o perinit t h e i n t r o d u c t i o n i n t o evidence
of the w i l l of decedent t o e s t a b l i s h t h a t p l a i n t i f f was t h e
s o l e b e n e f i c i a r y of h e r husband's e s t a t e .   The reasons given
were t o show t h e i n t e r e s t of t h e widow a s a witness and t o a i d
defendant i n h i s argument on damages.                   W s h a l l n o t dwell a t
                                                            e
length on t h i s i s s u e , because i n t h e context of t h e t r i a l t h e
i n t e r e s t of t h e widow was obvious.           The w i l l could n o t possibly
have made i t more obvious.               Neither do we s e e any p r e j u d i c e on
t h e defendant's argument on damages.
        F i n a l l y , a l s o i n i s s u e 4 , defendant urges e r r o r i n t h e
t r i a l judge's r e f u s a l t o permit t h e defendant t o r e c a l l t h e
p a t h o l o g i s t f o r t h e purpose of having him express an opinion
t h a t t h e death from drowning was instantaneous.                         W e have already
shown t h a t t h e witness had t e s t i f i e d t o t h e s e f a c t s and h i s
opinion.       Thus, no e r r o r appears.
       Having considered a l l of t h e i s s u e s presented and f i n d i n g
no e r r o r , we a f f i r m .


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