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Solich v. Hale

435 P.2d 883

11208

Montana

Montana Supreme Court

435 P.2d 883 (1967) Matt SOLICH, Jr., Plaintiff and Respondent, v. Helen Wilson HALE, Defendant and Appellant. No. 11208. Supreme Court of Montana. Submitted October 17, 1967. Decided December 27, 1967. *884 Chadwick H. Smith (argued), Helena, for appellant. Michael Chilton (argued), Helena, for respondent. CASTLES, Justice. This is an appeal brought by the defendant, Helen Wilson Hale, hereinafter referred to as the appellant, from a jury verdict and judgment awarding $7,000 in damages to Matt Solich, Jr., hereinafter referred to as the respondent, in an action for damages resulting from an alleged breach of a lease, which alleged breach was the result of failing to repair after a fire. On July 3, 1962, appellant leased to the respondent "premises situate on the west side of North Main Street [now North Last Chance Gulch], in the said City of Helena, between Edwards Street and Sixth Avenue, and being on the ground floor in what is known as `THE WILSON BUILDING,' and designated as No. 20½ N. Main Street, known as the `MINT BAR,' and also the basement room underneath the first mentioned room." The Wilson building consisted of an original building purchased by Mrs. Hale's father and an addition built by the father to the north of the original building. The northern outside wall of the original building became a two foot thick stone rubble wall separating the two portions of the building. At the time of the fire, passageways had been knocked through this stone rubble wall on the second and third floors and these stories were operated as a hotel. The ground floor was occupied by various businesses, including the respondent. The building was operated as one for insurance, managerial, and heating purposes. In effect there was only one building, with two sections or portions. This conclusion is supported by the lease agreement involved in the present case which spoke only of the "THE WILSON BUILDING" and did not distinguish between the two portions of the building. Under the original lease agreement, respondent's premises had been located solely on the south side of the stone rubble wall. However, the respondent had asked for and received permission to cut holes through this wall in order that he might locate certain facilities on the north side of the rubble wall. These new facilities included restrooms, an office, and a dance floor. An examination of the blueprints for the building reveals that the facilities located on the north side of the rubble wall are at least one-third as large as those on the south side of the rubble wall. The fire which occurred on April 28, 1965, and which brought on the suit involved in this appeal completely gutted that portion of the building which was north of the stone rubble wall. The roof and upper two floor of that portion of the building south of the rubble wall were extensively damaged. The first floor of the south portion, wherein the respondent had the larger part of his business, suffered smoke and water damage. Appellant, operating through her agent John Schroeder of Schroeder Brothers Company, the insurer of the building, and under the advice of an architect appointed by her insurance company and an order of the City of Helena to vacate, repair or demolish the building, ordered the tenants, including Solich, to vacate the building, which was then demolished. Respondent, feeling that the premises were repairable and that appellant had violated the lease, brought suit against her. At the close of respondent's case, the attorney for the appellant made a motion for a directed verdict in accordance with Rule 50, M.R.Civ.P. The grounds for this motion were (1) that plaintiff had failed to prove that any act or omission by the appellant was responsible for the damage suffered by the respondent; (2) that the building was destroyed; (3) that under R.C.M. 1947, § 42-109, which states that the hiring of a thing is terminated by the destruction of the thing hired, the lease was terminated; and, (4) that there was no agreement between *885 the two parties which would prevent the working of this particular statutory provision. The denial of this motion is specified as error by the appellant in her appeal to this court. Section 93-5205, R.C.M. 1947, provides that a directed verdict may be given by a judge: "Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto." Following a rule set down by a long line of cases, this court in reviewing the correctness of the district court in refusing to grant the motion for a directed verdict must view the evidence "from the standpoint most favorable to plaintiff, and every fact must be deemed proved which the evidence tends to prove. [Citing case.] No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence." Mellon v. Kelly, 99 Mont. 10, 20, 41 P.2d 49, 52, Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4. The only factual issue presented by this case, other than damages, was whether the building had been destroyed, or whether it had been merely damaged. This was recognized by the trial court when it denied the motion for a directed verdict. Once this basic factual question is resolved, all other questions posed by the case are questions of law to be decided by the court. If it is found that the building is destroyed, by operation of law the lease would be terminated. Only an agreement to the contrary between the two parties could prevent the action of this statute. The only agreement present is the lease itself, and the interpretation of that document is a matter for the court, section 93-2501-2, R.C.M. 1947. The problem for this court is to decide whether the evidence points so clearly to destruction that reasonable men could come to no other conclusion, and hence, only questions of law were presented. Appellant has presented for this court's consideration two tests to be used in determining whether a building was destroyed. The first test is that of untenantability. Under this test the thing hired is considered destroyed: "When destruction of the demised premises is of such a nature that it cannot be used for the purposes for which it was rented and cannot be restored to a fit condition by ordinary repairs, made without unreasonable interruption of the lessee's use." Presbyterian Distribution Services v. Chicago National Bank, 28 Ill. App.2d 147, 171 N.E.2d 86, at 90. Under the second test suggested to this court a building is considered destroyed if the cost of restoration of the building as it was immediately before the fire is more than one-half of the value of the property at the time of the fire. Both of these tests were presented to the jury in the instructions given by the trial court in the present case. We fail to see how, even viewing the evidence most favorable to the plaintiff, and considering as proven everything which the evidence tends to prove, that a reasonable man could come to any other conclusion but that the building involved here was destroyed. As to the first test, the complaint indicates that the respondent himself considered the building to be untenantable after the fire. The record contains no evidence as to how long it would take to return the building to a tenantable condition. However, the record clearly indicates that more than ordinary repairs would be necessary in order to return the building to a tenantable condition. One of the witnesses for the respondent, Oscar Baarson, an engineer, testified that, after a somewhat cursory examination, he felt that a "part" of the building could be repaired. His testimony seemed to indicate that that part of the building occupied by Matt's Club was repairable. However, *886 whether one adopts the theory that there was only one building, or that there were two, one must still be concerned with the repairability of the whole building, and not just that part occupied by Matt's Club. Respondent's second witness as to the repairability, Kermit Mueller, also made somewhat cursory examination of the building. He did not go up onto the roof and did not examine the parts of the building for structural soundness except by observing them. He concluded from his observations that the building was repairable. However his comments indicated that he considered anything short of building a new building to be "repairing." His comments on repairability were certainly not limited to ordinary repairs. Appellant had two witnesses who testified on the subject of repairability. These witnesses, both of whom were architects, carried on more extensive examinations than respondent's witnesses. Both concluded that the building was structurally unsound and that any repair would amount to virtual rebuilding of the structure. In view of the above testimony it would seem that under the first test no reasonable person could come to any other conclusion but that the building was destroyed. The second test of destruction, the cost of repair, would also seem to lead to the conclusion that the building was destroyed. A report issued by the insurance company which insured the building, prepared with estimates supplied by building contractors, estimated that the cost of repairing the building would be approximately $209,717.25. And this would be the repair of a building which immediately before the fire had a value of $197,235.00. Given such figures no reasonable man could come to any other conclusion that under the second test the building had been destroyed. In arriving at this conclusion this court has not merely considered the premises leased by the respondent. We have considered the whole of the building in which those premises were located. For the leased premises did not and could not exist independently of the whole building. A reading of the lease shows that this was not the intention of the parties. The lease by reference made the exterior walls and roof of the Wilson Building a part of the lessor-lessee relationship. The lease agreement obligated the appellant to keep the roof and exterior walls of the entire building in good repair. The premises wherein the bar was located formed only a part of the thing hired. In arriving at this conclusion, that the building was destroyed, this court has somewhat ignored the argument presented to it by both parties as to whether there was one or two buildings involved. If one adopts the assumption that two buildings were involved, the evidence still indicates that the building in which most of respondent's business was located was destroyed. In addition, parts of respondent's business were located in both buildings. A destruction of even the "so-called" north building would be sufficient to terminate the lease under the statute involved. If one adopted the position that only one building was involved, and considering all the facts plus the wording of the lease which refers only to "THE WILSON BUILDING," and drawing no distinction between the portions thereof, the result would be the same. The entire building was destroyed and the lease, which by reference included the roof and outer walls of the whole building, was terminated. Only an agreement between the parties could have the effect of preventing the application of the statute involved. Since the only agreement presented to this court between the parties was the lease itself, and obligation on the part of the appellant to rebuild a destroyed building must be found there. The pertinent part of the lease dealing with the subject of whether the appellant had an obligation to rebuild or only to repair is as follows: "And the said party of the first part [owner, Mrs. Hale] shall bear the expense of all exterior alterations and repairs including *887 repairs and maintenance to the roof." The question presented by this language is whether an obligation to make repairs or alterations would obligate the lessor to make such "repairs" if those repairs would amount virtually to rebuilding the building. The cases dealing with this matter, and they are numerous, are not always consistent. Comprehensive attention is given to the problem in 38 A.L.R.2d 674. That annotation states, at page 685: "Where the property has been destroyed or rendered untenantable and the lease contains covenants to `repair' rather than covenants to `restore' or `rebuild,' the cases support the general principles (1) that if the covenant to repair is general in scope, the lessor's duty is to restore or rebuild the premises, but (2) if the covenant to repair is limited or specific, he is or at least may be under no such duty." This same annotation on page 705 states: "It is well settled that the use of language which can be construed only to limit or make specific the duty of a lessor to repair structures on the leased premises may prevent an extension of the duty so as to embrace an obligation to restore or rebuild, in case of substantial or total destruction by fire * * *. A covenant * * * to keep the roof or other parts of a leased building in repair does not bind him to rebuild * * *." It would seem from a reading of the above authorities and cases discussed therein, plus a reading of the lease agreement itself, that the covenant of the appellant was in the nature of a limited covenant to keep the exterior parts of the building in repair. We cannot imply from such a limited covenant an obligation upon the part of the appellant to rebuild the destroyed building. Because of the fact that only questions of law were presented by this case, and because these questions of law should have been resolved in favor of the appellant, it was error for the lower court to deny a motion for a directed verdict. The decision of the lower court is reversed and it is remanded with instruction to enter a verdict for the appellant. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES HASWELL, ADAIR and JOHN C. HARRISON concur.

December 27, 1967

97b54d9a-860f-4c16-9279-67fff929b8a2

St. Paul Fire & Marine Ins. Co. v. Thompson

150 Mont. 182, 433 P.2d 795

11313

Montana

Montana Supreme Court

433 P.2d 795 (1967) 150 Mont. 182 ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff v. Bruce THOMPSON, Defendant Third-Party Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Third-Party Defendant and Appellant. No. 11313. Supreme Court of Montana. Submitted September 15, 1967. Decided October 27, 1967. Rehearing denied December 6, 1967. *796 William A. Brolin (argued), Anaconda, Lyman H. Bennett, Jr. (argued), Bozeman, for appellant. Donald A. Nash (argued), Morrow & Nash, Berg, O'Connell & Angel, Charles F. Angel (argued), Edmund P. Sedivy (argued), Bozeman, for respondent. CASTLES, Justice. This is an appeal from a judgment entered on a motion for summary judgment in favor of third party plaintiff Thompson for the amount of $2,500 attorney fees and other costs, the judgment running against the third party defendant. St. Paul Fire & Marine Insurance Company brought an action against Bruce Thompson. Thompson in turn filed a third-party complaint against State Farm Mutual Automobile Insurance Company. The parties will be hereinafter called, for brevity, St. Paul, Thompson, and State Farm. St. Paul insured Haggerty-Messmer Company and sues as subrogee. Haggerty-Messmer Company was the employer of Thompson. One Welch, in 1963, recovered judgment in the amount of $61,500 against Haggerty-Messmer Company and Thompson as joint tort-feasors in an action arising out of an automobile accident. Thompson, the employee, negligently drove his own automobile while acting in the course and scope of his employment by his employer; and thus, Haggerty-Messmer Company was the subject of the joint judgment against itself and Thompson. (See our *797 Opinion affirming the judgment in Welch v. Thompson, 145 Mont. 69, 399 P.2d 748.) The instant suit by St. Paul as subrogee, is on what we will term a theory of indemnity against Thompson; that is, a suit seeking indemnity by a joint debtor, the employer who was found liable by reason of the doctrine of respondeat superior. Thompson had an insurance policy covering his own liability with State Farm. State Farm actively defended Thompson in the Welch case referred to above. St. Paul paid $57,240.61 on the Welch judgment. State Farm paid $11,204.64 on the same judgment. State Farm's policy limits were, generally speaking, $10,000 for bodily injury and $5,000 for property. The judgment was for bodily injury. After Thompson was sued in the instant case, he notified State Farm and requested State Farm to defend him in said action. State Farm did commence to defend Thompson by a motion to dismiss, which motion was subsequently overruled. Shortly thereafter the insurer, State Farm, advised the insured, Thompson, that it would not further defend him. As a result, Thompson filed a third party complaint against the insurer seeking damages for the insurer's breach of contract to defend the suit. The relevant portion of the contract read: "(1) To pay all damages which the insured shall become legally obligated to pay because of (A) bodily injuries sustained by other persons, and (B) injury to or destruction of property of others, caused by accident arising out of the ownership, maintenance or use, including loading or unloading of the owned automobile. "Limits of Liability Coverages (A) and (B) unless specifically amended in the declarations, the company's limit of liability shall not exceed under coverage (A) $10,000 for all damages arising out of bodily injuries sustained by one person in any one accident and subject to this provision $20,000 for two or more persons in any one occurrence; coverage (B), $5,000 for all damages to all property of one or more persons or organizations in any one occurrence. "The inclusion herein of more than one insured shall not increase the limits of liability. "(2) As respects the insurance afforded under coverages (A) and (B) and in addition to the applicable limits of liability; "(a) To defend any suit against the insured alleging such bodily injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; "(b) To pay costs taxed against the insured in any such suit and, after entry of judgment, all interest accruing on the entire amount thereof until the company has paid or tendered such part of such judgment as does not exceed the limit of the company's liability thereon * * *." (Emphasis supplied.) As far as this appeal is concerned, the judgment was rendered on a motion for summary judgment entered in favor of Thompson for $2,500 attorney fees for defense of the suit and for other costs. The issue presented is whether, under the terms of the insurance policy, State Farm had a duty to defend this action for indemnity between joint tort-feasors, one of whom was its insured under the quoted contract above. An aside as to the issue is that appellant's brief set up numerous issues which involved St. Paul as well as Thompson. On oral argument and in a supplemental brief, the issues mentioned were abandoned, leaving Thompson as the sole respondent. Now then, we observe as did appellant's brief, the exact issue could have been brought to issue in the first trial as Haggerty-Messmer Company was a party to that action and did nothing then about attempting to assert a cross-claim as against Bruce Thompson, although that right was *798 available. (See M.R.Civ.P., Rule 13(g).) Of course, again as an observation, Haggerty-Messmer's position in the first trial was that Thompson was not in the course of employment at the time of the accident. Thus, to have asserted the claim of indemnity would have been somewhat inconsistent at that time. Now, however, since the judgment then was against both Thompson and Haggerty-Messmer, the subrogee seeks indemnity. Appellant State Farm's position is that the policy imposes no duty to defend this suit of indemnity because its only duty was, "to defend any suit against the insured alleging such bodily injury or destruction and seeking damages * * *." The respondent Thompson's position is since the continuing language of sub-para. (a) partially quoted immediately above is "any suit * * * on account thereof, even if such suit is groundless, false or fraudulent"; that such language should be interpreted to mean that this action by St. Paul against Thompson is merely a continuation of the original action by Welch in which the insurer defended the insured. To support this, the respondent looks also to the language in paragraph 1, "arising out of bodily injury"; and in addition paragraph 2 as hereinbefore underlined. The district court found the respondent's position correct, and we affirm. We have found no case specifically interpreting the contract language here. Our statute, R.C.M. 1947, § 13-270, has been interpreted to mean, among other things that, "in case of uncertainty, every doubt should be resolved in favor of the insured and the policy should be construed strictly against the insurer." (Niewoehner v. Western Life Insurance Co. (Mont. 1967) 422 P.2d 644.) In Eby v. Foremost Insurance Co., 141 Mont. 62, 66, 374 P.2d 857, this court quoted Prickett v. Hawkeye-Security Ins. Co., 10 Cir., 282 F.2d 294, 301, 83 A.L.R. 2d 1224, in stating the Kanses rule in part as follows: "`But if the terms of the policy are ambiguous, obscure, or open to different constructions, the construction most favorable to the insured or other beneficiary must prevail.'" (And see Johnson v. Equitable Fire & Marine Ins. Co., 142 Mont. 128, 131, 381 P.2d 778.) We hold that the language of the contract is uncertain in this regard. We think the recognition previously mentioned that the indemnification matter might have been litigated in the Welch trial under Rule 13(g), at a time when the duty to defend was clear, is sufficient to support this finding. Again, looking to the Kansas rule which we have adopted, we find that, "the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of an insured would understand them to mean." A reasonable person in the position of Thompson would understand that his insurance carrier, State Farm had a duty to defend him in "any suit * * * on account thereof, even if such suit is groundless, false or fraudulent." Appellant State Farm goes even further, though in asserting that it had paid the policy limits. State Farm cites Commercial Union Insurance Company of New York v. Adams (D.C.Ind. 1964), 231 F. Supp. 860; Lumbermen's Mutual Casualty Company v. McCarthy, 90 N.H. 320, 8 A.2d 750, 126 A.L.R. 894; Denham v. LaSalle-Madison Hotel Co., (C.C.A. 7th Cir.1948), 168 F.2d 576; Mead Corporation v. Liberty Mutual Ins. Co., 107 Ga. App. 167, 129 S.E.2d 162; and General Casualty Co. of Wisconsin v. Whipple (C.C.A. 7th Cir.1964), 328 F.2d 353. First of all, the payment of policy limits is clearly distinct and separate from the duty to defend. The policy provides that. Interestingly, the Mead Corporation v. Liberty Mutual case, supra, holds the same. In that case the rule of the Lumbermen's Mutual Casualty Co. v. McCarthy *799 case, supra, was expressly rejected and in the Mead case it was stated: "`The principle that "the duty to defend is broader than the duty to pay" is now beyond cavil.' The agreement to defend is not a covenant subordinate to or dependent on the agreement to indemnify; it is distinct from, different from, independent of, and broader than the insurer's promise to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury. There is no language in the policy making the defense covenant dependent on the amount of liability for bodily injury. The defense covenant is clear, positive, and unambiguous, and should be accorded its plain and ordinary meaning." Comunale v. Traders & Gen. Ins. Co., 321 P.2d 768, 773 (Cal. App.). Under the facts of the instant case, State Farm's duty to defend continued even though it had paid the policy limits. We have not attempted to distinguish the other cases cited by State Farm, that is, Commercial Union Insurance Company of New York v. Adams, supra; Denham v. La Salle-Madison Hotel Co., supra, nor General Casualty Co. of Wisconsin v. Whipple, supra. However, those cases do not impress us as the correct law in the area. We find then that the obligation to defend does exist. But, State Farm argues that it should be allowed to defend rather than paying counsel to defend the action. There can be no question of the good faith and sincere defense by counsel for State Farm in the Welch suit nor here. However, the inconsistent and yes, antagonistic positions that have developed make it clear that Thompson was required to hire his own counsel. No issue as to the amount of damages is involved. But one more matter needs discussion. Subsequent to the oral argument and predicated upon the fact that State Farm, as appellant, abandoned several of the issues on appeal, leaving in effect Thompson as the sole respondent, St. Paul has filed a motion for damages for appeal without merit. We believe our discussion previously indicates that St. Paul might have litigated the issue of idemnity in the previous action, but chose not to because of an inconsistent position. Even though St. Paul now has the favorable position of being "let-out" on issues on appeal, nonetheless it is very much a part of the issue. We have no doubt, for that matter, that it likely would have appeared as amicus curiae. Additionally, we have observed previously that the parties were and are in good faith, we hold that assessment of damages for appeal without merit are not proper. It is so ordered. By what has been heretofore stated, the judgment appealed from is affirmed. JAMES T. HARRISON, C. J., and ADAIR and JOHN HARRISON JJ., concur. HASWELL, Justice (specially concurring in part and dissenting in part): I concur in the result reached by the majority finding a breach of duty to defend by State Farm and awarding Thompson the sum of $2,500 by reason thereof. I do not agree however, that the duty to defend arises from ambiguous policy provisions construed in favor of the insured, Thompson. In my opinion the policy provisions relating to the duty to defend are clear, definite, unambiguous, and impose no duty on State Farm to defend in the instant situation under any recognized principles of construction. Under the terms of the policy, State Farm has the duty "to defend any suit against the insured alleging such bodily injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent." (Emphasis supplied.) The instant action by St. Paul against Thompson does not allege bodily injury or destruction of property and seek damages on account thereof. On the contrary it is an action by one of two joint judgment *800 debtors against the other to recover all sums paid by the one debtor on the judgment secured against both. It is based on the principle of indemnity and is in no sense an action seeking damages for bodily injury or destruction of property. In my view, to hold that the language of the policy requires State Farm to defend here is to strain the meaning of the English language. I would base the result reached here on the principle of estoppel. In the action resulting in the joint judgment, State Farm had control of Thompson's defense under standard policy provisions. For tactical reasons, State Farm chose not to litigate the respective rights and liabilities existing between the two defendants (who later became the two judgment debtors), but instead elected to confine that action to the question of liability as between the plaintiff therein on the one hand, and the two defendants jointly on the other. The effect of this choice was twofold: (1) To remove the duty to defend from the ambit of the policy provisions, and (2) To necessitate the instant action to determine rights as between the two joint judgment debtors. As the rights involved in the instant case could have been litigated in the original suit and if so litigated then, there would have been a clear duty on the part of State Farm to represent and defend Thompson therein, I would estop State Farm from denying the duty to defend Thompson in the instant case. In my view, sound public policy requires this approach. I dissent from that part of the majority opinion refusing recovery of damages to St. Paul from State Farm based on an unmeritorious appeal. The only reason that St. Paul is involved in this appeal at all is because State Farm appealed from the trial judge's denial of summary judgment in favor of Thompson against St. Paul. A denial of a motion for summary judgment is not an appealable order. (Rule 1, M.R.App.Civ.P.; Barron and Holtzoff, Federal Practice and Procedure, Vol. 3, § 1242; Moore's Federal Practice, Vol. 6, § 56.21[2]; Jones v. St. Paul Fire and Marine Ins. Co., 5 Cir., 108 F.2d 123; John Hancock Mutual Life Ins. Co. v. Kraft, 2 Cir., 200 F.2d 952; Dutton v. Cities Service Defense Corp., 8 Cir., 197 F.2d 458; McGarth v. Hunt, 2 Cir., 194 F.2d 529; Atlantic Co. v. Citizens Ice & Cold Storage Co., 5 Cir., 178 F.2d 453; Marcus Breier Sons v. Marvlo Fabrics, Inc., 2 Cir., 173 F.2d 29.) The reason it is not appealable is that a denial of summary judgment is an interlocutory order, leaving the case pending for trial, and no party's rights are finally foreclosed. To my mind, this appeal insofar as St. Paul is concerned, is clearly without merit and obviously for the purpose of delaying St. Paul's indemnity action against Thompson. It is true that upon oral argument, State Farm abandoned its appeal from the trial court's denial of a motion for summary judgment in favor of Thompson against St. Paul, but by that time the damage was done; St. Paul had prepared its brief on appeal; St. Paul's attorneys were before the court for the purpose of oral argument; and St. Paul's attorneys proceeded with oral argument and supplemental briefs in much the same fashion as on any appeal. For the foregoing reasons I would award damages for an appeal without merit and for the purpose of delay in favor of St. Paul and against State Farm to the extent of a reasonable attorney's fee for St. Paul's attorneys on this appeal pursuant to Rule 32, M.R.App.Civ.P.

October 27, 1967

cc6b318e-0d72-4df6-9c34-cf505a7febcd

STATE v LEWIS

N/A

13365

Montana

Montana Supreme Court

No. 13365 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Appellant, -VS- DONALD LEWIS, Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding Counsel of Record: For Appellant: Hon. Michael Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Charles A. Bradley, Deputy County Attorney, argued, Billings, Montana For Respondent : Moses, Kampfe, Tolliver and Wright, Billings, Montana D. Frank Kampfe argued, Billings, Montana Submitted: January 24, 1977 Decided: JUN 1 O 1971 Mf; Justice Gene B. Daly delivered the Opinion of the Court. The state appeals from an order of the district court, Yellowstone County, suppressing evidence the state sought to introduce in the trial of defendant Donald Lewis. Oh the evening of October 8, 1975, an anonymous person called the home of Del Jones, a member of the Billings School Board. The caller threatened Jones and his family with the statement: "If the schools are not closed tomorrow, your house will be bombed." The recipient of the telephone call laid the telephone receiver on a table and the Billings police were informed of the threatening call. The police, with the assist- ance of telephone company personnel, traced the call to defendant's residence. Tracing the call was accomplished by means of a "telephone trap" which keeps open the connection. between the parties as long as the recipient of the call does not replace the telephone receiver in its cradle. The telephone trap was placed on the telephone at the Jones residence with the consent of Jones and as a result of telephone-. threats made to members of the school board during the teachers' strike in Billings. Once the call's origin was traced to defendant's residence two Billings police officers were dispatched for the purpose of confirming the telephone connection between defendant's telephone and the telephone at the Jones residence. Upon arriving at de- fendant's residence, at approximately 11:OO p.m. on the evening of October 8, 1975, one of the police officers requested and re- ceived defendant's permission to use defendant's telephone. When the police officer picked up the telephone receiver he realized the telephone line was dead. The accompanying police officer was - 2 - sent outside to investigate. This investigation established the telephone line between defendant's house and the telephone pole was severed. The police officers then informed defendant they intended to leave defendant's residence to obtain the assistance of a telephone company lineman, who could trace the connection from the severed line. In the early morning hours of October 9, 1975, between 1:00 a.m. and 2:00 a.m., a telephone company employee and police officer returned to defendant's residence and, from the alley behind defendant's property, pulled the fallen tele- phone line in defendant's backyard over defendant's fence. A line- man's portable telephone was attached to the retrieved telephone line and the connection to the Jones residence was confirmed. Later on the morning of October 9, 1975, another police officer and an accompanying telephone company lineman arrived at defendant's home. The police officer informed defendant of his Miranda rights and advised defendant the investigation was to continue and photographs were to be taken from defendant's backyard. The lineman repaired and replaced the telephone line, giving the removed portion of the telephone line to the investi- gating officer. Photographs were taken by the police from inside defendant's backyard. When the police officer and lineman had left defendant's home, after their second visit on the morning of October 9, 1975, defendant went to the police station inquiring as to the events taking place. Defendant was again informed of his Miranda rights and he proceeded to secure counsel. On October 9, 1975, the county attorney for Yellowstone County filed an Information charging defendant with the crime of intimidation in violation of section 94-5-203(1) ( a ) , R.C.M. 1947. Subject to the filing of the Information, on October 17, 1975, a police officer and a telephone company lineman returned to defendant's home. The entire telephone cable, from the telephone pole to the defendant's home, was removed at this time % and additional photographs of the defendant's home were taken from the street. All searches and seizures conducted on the four noted occasions were performed without a search warrant. On March 26, 1976, defense counsel submitted a motion to suppress evidence obtained from defendant's home by law enforce- ment officers and to suppress all statements made by defendant at the time police conducted their investigations. A hearing on defendant's motion to suppress was held in the district court April 2, 1976. On April 9, 1976, the district court issued its order and memorandum holding: "* * * that any and all physical evidence secured from the curtilage owned by the defendant and any and all testimony relating thereto shall be suppressed and are deemed inadmissible as evidence against the defendant. I' The following issues are presented for review: I ) Whether the district court erred when it ordered all physical evidence secured from the curtilage owned by the de- fendant and any and all testimony relating thereto suppressed as inadmissible evidence? 2) whether the district court erred when it ordered evidence secured by the wire tap into defendant's telephone line during the early morning hours of October 9, 1975, suppressed as in- admissible evidence? The state contends the evidence secured by warrantless search and seizure on the four occasions in question is admis- sible under these theories: A ) The telephone company had the authority to secure the evidence in question under section 95-701(b) (d) , R.C .M. 1947, and even though the telephone company was acting as agents of the police, this authority was not lessened. B) The plain view doctrine sanctions such seizure of evidence if ( 1 ) the law enforcement officer was situated in a place where he had a legal right to be and ( 2 ) the discovery of the evidence was inadvertent. Section 95-701, R.C.M. 1947, provides: "Searches and seizures--when authorized. A search of a person, object or place may be made and instruments, articles or things may be seized in accordance with the provisions of this chapter when the search is made: " ( a ) As an incident to a lawful arrest. " ( b ) With the consent of the accused or of any other person who is lawfully in possession'of the ob- ject or place to be searched, or who is believed upon reasonable cause to be in such lawful 'possession by the person making the search. " ( c ) By the authority of a valid search warrant. " ( d ) Under the authority and within the scope of a right of lawful inspection granted by law," It is admitted by the state and the facts show that the telephone company was acting as the agent of the police. Telephone company personnel came upon defendant's property at the request of the police and they were accompanied by the police on each occasion. The establishment of such an agency presupposes that any warrantless search and seizure conducted by telephone company personnel is legally justified, just if legally justified when conducted by the police. Section 95-701(b) legally justifies such a warrantless search and seizure where the defendant gives his consent to the search. However, in the instant case, the testimony of the investigating officer establishes that defendant only consenbd to the officer's initial entry into defendant's residence and the use of defendant's telephone. This expressed consent falls short of any expressed authorization to search the premises, remove physical evidence or tap into telephone lines. Furthermore, no implied consent authorizing telephone company personnel to enter the premises for the purpose of general mainten- ance and repair can be construed to authorize an inspection under section 95-701(d), carried on for the purpose of obtaining evidence for the state to be used in a criminal prosecution. State v. LaFlarnme, Mont . , 551 P.2d 1011, 33 St.Rep. 632. The state's theory "B" justifying the warrantless search and seizure of evidence adopts a simplified interpretation of the plain view doctrine. We find Mr. Justice Stewart's remarks in Coolidge v. New Hampshire, 403 U.S.443, 91 S.Ct. 2022, 29 L ed 2d 564, clarifying: "What the 'plain view' cases have in common is that the police officer in each of them had a prior justifi- cation for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification--whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused--and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." 403 U.S. 466 "The limits on the doctrine are implicit in the state- ment of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, t h a t no amount of probable cause can j u s t i f y a warrantless search o r seizure absent 'exigent circumstances.' Incontrovertible testimony of the senses t h a t an incriminating object is on premises belonging t o a criminal suspect may estab- l i s h the f u l l e s t possible measure of probable cause. But even where the object i s contraband, t h i s Court has repeatedly s t a t e d and enforced the basic rule t h a t the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1; Johnson v. United . # . States, 333 U.S. 10; ~ c ~ o n a l d v. United S t a t e s , 335 U. S. 451; Jones v. United States, 357 U.S. 493,497-498; Chapman v. United States, 365 U.S. 610; Trupiano v. United S t a t e s , 334 U.S. 699 ." (Emphasis supplied.) 403 U.S. 468. I n l i g h t of the above discussion, we hold the p l a i n view doctrine misapplied t o the f a c t s of t h i s case. The police, with the a i d of telephone company personnel, had no p r i o r j u s t i f i c a - t i o n f o r searching the defendant's premises, much l e s s seize evidence, without a search warrant. There i s an obvious absence of hot pursuit, search incident t o lawful a r r e s t o r other exigent circumstances which would permit the application of t h e plain view doctrine t o j u s t i f y a search and seizure without securing a search warrant. S t a t e v. Amor, 164 Mont. 182, 520 P.2d 773; Coolidge v. N e w Hampshire, supra. W e find, a s did the d i s t r i c t court, t h a t the f a c t s demon- s t r a t e the Billings police secured evidence from defendant's residence without defendant's consent and without a search warrant. Such a warrantless seizure, absent l e g a l j u s t i f i c a t i o n , renders the evidence and a l l testimony r e l a t i n g thereto inadmissible i n defendant's criminal prosecution. The order of the d i s t r i c t court i s af W e Concur: ' \ ---- - - ------7'

June 10, 1977

6b84d8e0-ecc7-4401-8e9d-6d27fd1f7795

GARSJO v DEPT OF LABOR INDUSTRY

N/A

13425

Montana

Montana Supreme Court

No. 13425 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CARLYLE M. GARSJO, Petitioner and Appellant, THE DEPARTMENT OF LABOR AND INDUSTRY OF THE STATE OF MONTANA, a Municipal Organization, and LORAINE HORNER, Defendants and Respondents. Appeal from: District Court of the Seventeenth Judicial District Honorable M. James Sorte, Judge presiding. Counsel of Record: For Appellant: Robert Hurly argued, Glasgow, Montana For Respondents: Garden and McCann, Wolf Point, Montana Jerry M. Schuster argued, Wolf Point, Montana J. Mayo Ashley argued, Helena, Montana Submitted: January 13, 1977 Decided : MAR I 7 5971~ Filed: A 1 ( $7/ M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court. This i s an appeal from the d i s t r i c t court, Valley County, which affirmed a wage decision by a hearings examiner i n favor of Loraine Horner. Carlyle M. Garsjo, employer, i s the owner of the Rainbow Motel i n Glasgow, Montana. I n mid-summer 1974, he hired Loraine Horner, employee, t o operate the motel. The f i r s t month she was employed on a t r i a l basis and paid by the hour. During t h i s month she worked and was paid f o r 14 hours per day. A t the end of the t r i a l period, she was hired full-time a t $275 per month salary and an apartment a t the motel valued a t $125 per month which she was required t o l i v e in. During the term of the employment, employee's duties consisted of checking people i n and out of the motel; attending the motel switchboard; keeping a l l of the motel records; doing a large p a r t of the d a i l y cleanup which included changing sheets, cleaning the rooms, doing the laundryi and other maintenance work. She was a s s i s t e d i n the cleanup by a s e r i e s of part-time maids. The employer came by every few days t o pick up t h e proceeds f o r deposit i n the bank. Employee kept the records a t the motel and the only hours she kept, a f t e r she became a salaried employee, were those hours she worked on her day off and f o r which she was paid overtime. I n t h e f a l l 1974, employee asked f o r a r a i s e and f a i l i n g t o get one f i l e d a wage claim with the Montana Department of Labor and Industry. A hearing was held before a Department of Labor and Industry hearings examiner who found t h a t employee (1) was not employed i n a "bona f i d e executive * * JC capacity", (2) was covered by the Montana Minimum Wage and Hours Act; (3) was not paid the proper wage; and ( 4 ) was due $2,267 in back wages. Employer appealed the ruling pursuant to section 82-4216, R.C.M.194?, the judicial review section of the Montana Administra- tive Procedure Act. In his appeal to the district court employer raised the same issues he raises here: 1 ) Whether the Department of Labor's administrative regu- lations exceed the statutory authorization and are arbitrary and capricious. 2 ) Whether the live-in agreement is authorized by specific regulations promulgated by the Department. 3 ) Whether there was a failure of proof. 4 ) Whether there were inadequate findings of fact. The district court ordered the employer to pay a 100% penalty and the employee's attorney fee. Employer also appeals from those orders. Issue 1 . Employer argues the regulations as promulgated absolutely prohibit the employee from being an executive because she did not receive $150 per week and she did not direct the work of two or more employees,and are therefore unreasonable. The Montana Minimum Wage and Hours Act provides at section "The provisions of section 41-2303 of this act shall not apply to: " ( j ) Any individual employed in a bona fide executive, administrative, or professional capacity as these terms are defined and de- limited by regulations of the commissioner." The commissioner of labor has promulgated regulations which cover over 40 pages i n the Montana Administrative Code interpreting t h i s section of the Act. For the most part these rules are a verbatim copy of the federal regulations (29 C.F.R. Part 541) promulgated t o interpret the equivalent section of the Fair Labor Standards Act, modified t o make them compatible with the Montana statute. The regulations involved here are MAC 24-3.14BII (2) - S1420 and MAC 24-3.14BII (2) -S1450 (13). The f i r s t rule defines "Executive" and reads as aplies here: "(1) The term 'employee employed i n a bona fide executive * * * capacity' i n section 41-2304(j) of the Montana Minimum Wage Law shall mean any employee : "(a) Whose primary duty consists of the manage- ment of the enterprise i n which he is employed o r of a customarily recognized department o r subdivision thereof; and "(b) W h o customarily and regularly directs the work of two or more other employees therein; and "(c) W h o has the authority t o hire o r f i r e other employees o r whose suggestions and recommendations as to the hiring or f i r i n g and as t o the advancement and promotion or any other change of status of other employees w i l l be given particular weight; and "(d) \ h a customarily and regularly exercises dis- cretionary powers; and "(e) W h o does not devote more than 20 percent or i n the case of an employee of a r e t a i l or service estab- lishment who does not devote as much a s 40 percent, of h i s hours of work i n the workweek t o a c t i v i t i e s which are not directly and closely related t o the performance of the work described i n subsections (a) through (d) of t h i s section: "Provided, That t h i s paragraph s h a l l not apply i n the case of an employee who i s i n sole charge of an independent establishment o r a physically separated branch establish- ment, or who owns a t least a 20 percent interest i n the enterprise i n which he i s employed; and "(f) W h o is compensated for h i s services on a salary basis a t a rate of not less than $150 per week, exclusive of board, lodging, or other f a c i l i t i e s * * *.I1 MAC 24-3.14BII (2) -S1450 (13) deals with the ' sole-charge excep- tion' and states in pertinent part: " ( a ) An exception from the percentage limitations on nonexempt work is provided in MAC 24-3.14BII ( 2 ) - S1420 subsection (e) for 'an employee who is in sole charge of an independent establishment or a physically separated branch establishment * * *'. Such an em- ployee is considered to be employed in a bona fide executive capacity even though he exceeds the applicable percentage limitation on nonexempt work." This Court had held the Montana Wage and Hours Act consti- tutional and the specific section in question here was held not to constitute an unlawful delegation in City of Billings v. Smith, 158 Mont. 197, 207, 490 P.2d 221, which sets out the test of the validity of regulations promulgated under the authority of section 41-2304(j), R.C.M. 1947: It* * * such power is constitutionally exercised where the definition formulated by the administrator is within the limits laid down by the Congress which * * * are marked out by the fair and natural meaning of the words 'bona fide executive --- - * * * capacity.' (Emphasis added.) his indicates that to find the power to have been un- constitutionally exercised, this Court will have to find the definitions of the Commissioner of Labor to be outside the fair and natural meaning of the words. See Walling v. Yeakley, * * * 1 4 0 F.2d 830." The regulations attempt to set out specific objective and subjective criteria which are generally characteristic of an executive's job. Certainly an executive must manage as his primary duty, and it would be rare indeed to find an executive who did not direct two or more employees--employees he has the authority to hire and fire. The typical executive's job requires the exercise of discretion and he does executive type work as a sub- stantial, if not exclusive, part of his job. Therefore, these regulations are logical and well within the boundaries of the fair and natural meaning of the word "executive". Here, employee does not fall within the requirements of subparts ( a ) through ( e ) , MAC 24-3.14BII ( 2 ) -S1420, because she exercises little discretion and spends a substantial amount of her time doing nonexecutive work. In Williams v. Corbett, 205 Ore. 69, 286 P.2d 115, 117, the Oregon court said: "Plaintiff's job was to clean the rooms, change bed linens, turn the mattresses from time to time, clean the windows, the hall and the lobby, take care of the lavatories and showers, and attend to the registering of guests. She kept the money paid by the guests until the defendant called for it, but she did not order supplies nor pay the bills. * * * * "We do not think that the words 'administrative' and I executive', as they are commonly understood, may fairly be said to comprehend the duties of the plaintiff. Those words suggest something higher in the scale of employment than the calling of a maid-of-all work, with the few additional responsibilities which we have described thrown in. * * *" The effect of the regulations set out above is that an employee who meets the requirements of MAC 24-3.14BII ( 2 ) -S 1420, subparts ( a ) through ( e ) , is a bona fide executive and is excepted from the minimum wage and overtime provisions of the statute. If the employee ( 1 ) spends over 4 0 % of her time doing nonmanagement work, but is in sole charge of an independent enterprise, ( 2 ) meets the requirements of subparts ( a ) through ( d ) , and ( 3 ) is paid more than $150 per week, then there is also an exception to the general applicability of the wage and hour provisions of the statute. The logic of these regulations is clear. A real full-time executive doing executive work is given an exemption from the minimum wage and overtime provisions no matter what he is paid, but an executive who does a substantial amount of nonexecutive work for which the minimum wsge would have to be paid if done by another person, may avo id the provisions of the Act only if the pay is high enough assure that the minimum wage law is not being circumvented. In this case, assuming the hearings examiner's findings are correct and the employee worked a 1 4 hour day, six days a week, then the $150 per week requirement works out to approximately $1.80 per hour. This is certainly not an outrageous rate of pay for an executive. If the employee had been paid the $150 per week set by the rule to avoid "subterfuge executives" and the only difficulty would be the two employee requirement, then the employer's argument that as applies to this employee the regulation is un- reasonable might carry some weight. But where, as here, the employee does not do a substantial amount of executive work, it does not. The regulations are reasonable. Issue 2 . The employer argues that MAC 24-3.14BII ( 1 4 ) - S14090, which speaks in terms of allowing reasonable agreements applies here. That regulation interprets the term "hours worked'' and speaks of reasonable agreements as to computation of overtime where the employee is required to reside at the place of work. The cases interpreting the equivalent federal rule indicate that the regulation concerns agreements for computing compensation for overtime actually worked, or in excess of those hours actually worked. Case law holds that an employee may not enter into an agreement which operates to waive compensation for overtime actually worked. Skelly Oil Co. v. Jackson, 194 Okl. 183, 148 P.2d 182, Travis v. Ray, 41 F. Supp. 6. That regulation does not apply here. Issue 3 . The employer argues there was a failure of proof. The section under which appeal to the district court was taken, section 82-4216(7), R.C.M. 1947, sets out the standard of review of the evidence: "The court s h a l l not substitute i t s judgment f o r t h a t of the agency a s t o the weight of the evidence on questions of f a c t . * * * The court may reverse o r modify the decision i f substantial r i g h t s of t h e appellant have been prejudiced because the administrative findings, inferences, conclusions o r decisions are: "(e) c l e a r l y erroneous i n view of t h e r e l i a b l e , probative and substantial evidence on t h e whole record." Here, employer did not keep records required by law and which could have e a s i l y supplied the needed information. I n Anderson v. M t . Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L ed 1515, 1523, the United States Supreme Court i n a F a i r Labor Standards Act case discussed t h i s d i f f i c u l t y : ' I * * * where the employer's records a r e inaccurate o r inadequate and the employee cannot o f f e r convincing s u b s t i t u t e s , a more d i f f i c u l t problem a r i s e s . The solu- t i o n , however, is not t o penalize the employee by denying him any recovery on the ground t h a t he i s unable t o prove the precise extent of uncompensated work. Such a r e s u l t would place a premium on an employer's f a i l u r e t o keep proper records i n conformity with h i s statutory duty; it would allow the employer t o keep the benefits of an employee's labors without paying due compensation a s con- templated by t h e F a i r Labor Standards Act. I n such a s i t u a t i o n we hold t h a t an employee has carried out h i s burden i f he proves t h a t he has i n f a c t performed work f o r which he was improperly compensated and ifhexproduces s u f f i c i e n t evidence t o show t h e amount and extent of t h a t work a s a matter of j u s t and reasonable inference. * * *I1 I n Purcell v. Keegan, 359 Mich. 571, 103 N.W.2d 494, 497, the Michigan Supreme Court discussed t h i s problem and s e t out exact procedure: "* * * When the employee shows, a s he did here, ' t h a t he did i n f a c t .perform overtime work f o r which he was not properly compensated and produces s u f f i c i e n t evidence t o show the extent and amount of such work a s a matter of j u s t and reasonable inference, the burden s h i f t s t o the employer t o come forward with evidence of the precise amount of the work performed o r with evidence t o negate the reasonableness of t h e inference t o be drawn from the evidence of the employee. And i f t h e employer f a i l s t o produce such evidence, it i s the duty of the court t o enter judgment f o r the employee, even though the amount be only a reasonable approximation.' * * +." I n the instant case Loraine Horner t e s t i f i e d she worked 16 hours each day but conceded t h a t she l e f t t o take her c h i l d t o school and do shopping. The time sheet f o r July indicates t h a t while she was employed on an hourly b a s i s , she was paid f o r 14 hours per day. N o evidence a s t o the precise amount of work done was offered by the employer and the inference of t h e hearings examiner i s a reasonable one. It i s not c l e a r l y erroneous i n view of the r e l i a b l e , probative, and substantial evidence on the record a s a whole. There i s no f a i l u r e of proof. Issue 4. Employer alleges the findings of f a c t a r e inadequate. Under the review provisions of the Montana Administrative Procedure Act, section 82-4216(7), quoted heretofore and under which the employer appealed, subsection (g) thereof allows the d i s t r i c t court t o reverse: "(g2 because findings of f a c t , upon issues e s s e n t i a l t o the decision, were not made although requested." N o request f o r the missing finding was made. The finding claimed t o be missing finding s e t t i n g out the number of hours f o r which payment i s due. W e note t h a t the hearings examiner attached t o h i s findings the worksheets he used t o calculate the amount due. These worksheets adequately provided the necessary information. There is no error. Employer next argues the assessment of penalties by the d i s t r i c t court was e r r o r p a r t i c u l a r l y i n view of the f a c t they were not assessed by the hearings examiner. He c i t e s and r e l i e s on State ex r e l . Neiss v. D i s t r i c t Court, 162 Mont. 3 2 4 , 511 P.2d 979. That case i s not applicable t o t h e f a c t s here f o r i n Neiss the Court d e a l t with three categories of wage claims: 1. I n the f i r s t group a deposit had been made by employer into the d i s t r i c t court f o r wages due t o a group of unidentified employees. We noted there the employer having complied, there was no penalty due. Here, employer Garsjo made no deposit. 2 . The second group, consisted of employees who had settled their claims. The Court held: "These employees having been represented by the county attorney * * * liquidated damages are not applicable." In the instant case, the employee had a private attorney. 3. The third group of employees brought the action either through the labor commissioner or the county attorney, and this Court noted the penalty was to be disposed of by the district court. Under the provisions of section 41-1302, R . C . M . 1947, the commissioner of labor is charged in cases where he institutes an action for the collection of wages due, to collect the penalty. The wording of the statute is "A penalty shall * * * be assessed." We find here no error in assessing the penalty. The question of attorney fees is raised where not only the commissioner of labor presecutes the claim, but where in addition the employee has hired her own counsel. Employer here relies on Neiss but as noted heretofore, that case is distinguishable on the facts. There the employees were represented by the county attorney, who was carrying out his official duties. Here, private counsel was hired, even though the claim was assigned to the commissioner. Employee is entitled to an award of attorney fees. Section 41-1314.2, R.C.M. 1947, provides that the judgment should include all costs reasonably incurred in connection with the pro- ceedings, including reasonable attorneys' fees. Here, the trial court set the attorney fees in the amount of $880 and no issue is raised as to the reasonableness of the fee. .'s The judgment is affirmed. ( ' \ , , . . . 7 /' 2 - 5 ' 3 '\ \\. -4-5 i~ < - z 9 P + . , f$ Justice : J . I W e Concur: Chief Justice

March 16, 1977

dd14a5c7-8413-4ebf-b9c1-9c4f9950c4af

Haggart Construction Company v. State Highway Commission

427 P.2d 686

11093

Montana

Montana Supreme Court

427 P.2d 686 (1967) The HAGGART CONSTRUCTION COMPANY, a Corporation, Plaintiff and Respondent, v. The State of Montana Acting By and Through the STATE HIGHWAY COMMISSION, Defendant and Appellant. No. 11093. Supreme Court of Montana. Submitted April 12, 1967. Decided May 11, 1967. Rehearing denied May 25, 1967. Forrest H. Anderson, Atty. Gen., Helena, Donald D. MacPherson, Daniel J. Sullivan, Robert A. Tucker, K.M. Bridenstine, Helena, D. R. Matthews, Missoula, Peter McKinney and Thomas F. Dowling, Harry C. Alley (argued), Helena, for appellant. Loble, Picotte &amp; Fredericks, Helena, Anderson, Symmes, Forbes, Peete &amp; Brown, Billings, Gene A. Picotte (argued), Helena, Jerome Anderson (argued), Billings, for respondent. CASTLES, Justice. This is an appeal from a judgment entered in favor of plaintiff, hereinafter referred to as Haggart, for additional expenses incurred on a road construction contract between Haggart and appellant, Montana State Highway Commission. Haggart, a general contracting company, received at its offices in Fargo, North Dakota, an invitation from appellant to bid on a highway construction project near Richey, Montana. This "Notice to Bidders" was received 19 days prior to bid letting. Haggart thereupon requested a "Bid Proposal" from appellant, which included the "Plan and Profile" and the proposed "General Contract." These materials were received by Haggart 14 days before bid letting, and included "Available Surfacing Materials Reports." Such reports contained technical data on three gravel pits near the construction site from which the contractor could obtain materials to be used on the road. The three pits were State-optioned and gravel therefrom would be supplied free of charge to the successful bidder; or put another way "royalty-free" gravel close to the job site. The available materials report was based on test drillings and laboratory analysis conducted by appellant and indicated that acceptable surfacing materials could be produced economically and in sufficient quantities from the pits. Haggart won the *687 contract. As stated in the findings of fact made by the district court, and these findings are not challenged, the gravel in all three pits was not suitable for the intended use and could not have been processed by Haggart to meet quality specifications in the contract. Haggart incurred expenses in excess of $147,000.00 in obtaining suitable gravel elsewhere and obtained a judgment therefor. The district court's findings, unchallenged here, are to the effect that: (1) the appellant intended the bidders to rely on its sources of material; (2) the bidders could not independently investigate nor check the accuracy of the representations; and (3) the representations as to fitness constituted a warranty. While no finding of wilful misrepresentation was made, at least an implied finding of negligent testing by the appellant was made. In this connection one witness testified that samples containing too much sand were rejected as a standard practice. At the very least the findings were that the representations were misleading. Appellant does not seriously deny the fact that the material reports were misleading inasmuch as the gravel obtained was not of the quality indicated. Rather appellant relies upon certain exculpatory provisions of the contract, arguing that such provisions place the risk squarely on the contractor to make an independent assessment of available materials. The district court ruled that appellant in effect warranted the existence of suitable materials and that Haggart acted in justifiable reliance on such representations to his detriment. The only issue, then, is whether the exculpatory provisions offer a defense to appellant under the particular circumstances of this case. Language in the contract relied upon by appellant provides in pertinent part: "The Commission will provide test data concerning quality and quantity but will make no guaranty in any respect as to quality and quantity of material produced therefrom * * *. If the contractor elects to use any or all of such indicated sources, * * * the contractor shall be wholly and completely responsible for the quality and quantity of any and all materials supplied and furnished in such a case. * * * The contractor may use any indicated source he chooses, but it shall be his responsibility, and his alone, to produce satisfactory material therefrom * * *." In addition, the "Available Surfacing Materials Report" itself contained the following language: "The data shown herein represents condensed information from the Laboratories and as reported by the Field Forces regarding the source of surfacing materials for this project. It does not constitute a guarantee by the State Highway Commission of the quality or quantity of the material as shown * * *." Although Haggart argues that the contract is ambiguous and should be construed against the drafter of the instrument (here the appellant), we feel that the above-cited provisions are quite clear. But having considered case law and policy issues raised, we do not feel that the exculpatory clauses are enforceable in this instance. Appellant admits that one purpose in furnishing available materials reports to prospective bidders is to induce lower bids. The advantage to Montana taxpayers as a result of this practice is clear. Since Haggart received the materials report only 14 days before bid letting, the practical difficulty in making an independent analysis of such materials is obvious. The record further indicates that few contractors bidding on such projects have sufficient time or test facilities to make an intelligent appraisal of available materials. There is nothing to show that appellant expects less than complete reliance on its materials reports. If the State Highway Commission were allowed to rely on the exculpatory provisions of the contract, the purpose for which such reports are offered would be sadly frustrated, if not totally destroyed. No prudent contractor would proceed in reliance *688 on such reports at his absolute peril; the necessity to guard against unforeseen deficiencies would result in much higher bids than conditions would normally warrant. Although appellant cites some authority to the contrary, the position which the court takes here is amply supported in case law. In Sandkay Const. Co. v. State Highway Commission, 145 Mont. 180, 184, 399 P.2d 1002, 1005, this question was posed: "Or to state it with more particularity, where plans and estimates or specifications are used as a basis for bids, is a contractor who has been led to believe that the conditions indicated in such plans exist, able to rely on them and recover for expenses necessary by conditions being other than as represented by such plans?" We answered in the affirmative. In Fehlhaber Corp. v. United States, 151 F. Supp. 817, the plaintiff was permitted damages resulting from reliance on false governmental representations in spite of exculpatory clauses. In Hollerbach v. United States, 233 U.S. 165, 34 S. Ct. 553, 58 L. Ed. 898, the Supreme Court held that the government could not deny liability for similar misleading statements. The recent California case of Wunderlich v. State, Cal., 56 Cal. Rptr. 473, 423 P.2d 545, involved a fact situation similar to the one before us and had an interesting history in the California courts. The district court of appeals awarded a contractor damages caused by the failure of gravel pits tested by the state to conform to expectations. The lower court said: "In the present case it would not be reasonable to hold that the state, by resorting to provisions of an exculpatory nature in the standard specifications, could escape responsibility for the accuracy of information upon which it expected bidders to place reliance in formulating their bids. In such circumstances the state is not relieved from liability by general contractual provisions requiring the bidder to investigate a source of materials which is designated by the state as being satisfactory in nature." (50 Cal. Rptr. 151, 162, 423 P.2d 545, 556.) The Supreme Court of California reversed in favor of the State, and said: "* * * Although there is some evidence that plaintiffs `relied' on the alleged representations as to the character of the Wilder pit, the question is whether, under the circumstances of the indefinite nature of the statements and the existence of exculpatory provisions, the bidder could justifiably rely on the statements. It does not appear that plaintiffs could have done so, and the state is not responsible for the subjective interpretation placed upon the information by bidders." Thus the California Supreme Court based its decision on an absence of justifiable reliance. But we feel that the facts in this case differ from those in Wunderlich in several important particulars. The representations made in the California case fell far short of a warranty and contained considerably more cautionary language than is here present. The California high court characterized the statements as "suggestive only" or "merely indications," falling short of assertions of fact. In Wunderlich, the contractor had a greater opportunity to examine the job site personally and in fact did make such an inspection before submitting a bid. Furthermore, the gravel involved in the state optioned source was not readily available but had to be purchased by the contractor. And finally, there was no direct evidence that test reports were furnished for the express purpose of eliciting lower bids. We agree with the California Supreme Court that, "The crucial question is thus one of justified reliance." Wunderlich v. State, 56 Cal. Rptr. 473, 476, 423 P.2d 545, 548. Although the two California courts disagreed in analyzing the facts, both opinions fairly set forth the legal issues presented. Considering the record before us, there is every reason to believe that Haggart's reliance upon the representations made was justified. This is particularly *689 true when the appellant expected such reliance to result in lower bids. The State Highway Commission places itself in a contradictory position when on one hand it warrants the condition of the gravel pits, but the next moment disclaims any liability arising from reliance on such representations. Section 13-719, R.C.M. 1947, provides: "Inconsistent words rejected. Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected." Certainly the exculpatory clauses are inconsistent with the statements made concerning gravel sources and the purpose for which such statements were rendered. Basic notions of fair play, as well as sound principles of public policy, require the contradiction to be resolved in favor of Haggart in this case. Individual contractors are in a poor bargaining position with respect to the type of road construction contract involved here. It would be unreasonable to suppose that prospective bidders could obtain more equitable terms, since the customary practice of appellant seems to include the use of these exculpatory clauses. The contractor is inevitably in a "take it or leave it" situation. The danger to public interests, implicit in such a case, is pointed out in Ozark Dam Constructors v. United States, D.C., 127 F. Supp. 187, 190: "A contract for immunity from the harmful consequences of one's own negligence always presents a serious question of public policy. That question seems to us to be particularly serious when, as in this case, if the Government got such an immunity, it bought it by requiring bidders on a public contract to increase their bids to cover the contingency of damages caused to them by the negligence of the Government's agents. Why the Government would want to buy and pay for such an immunity is hard to imagine. If it does, by such a provision in the contract, get the coveted privilege, it will win an occasional battle, but lose the war." For the foregoing reasons, the judgment must be affirmed. We are not here holding that such exculpatory clauses may not be enforced in other situations, that detrimental reliance may be assumed in all cases, or that parties to such contracts are bound to exercise anything less than reasonable and prudent judgment. In other words we will look to "justifiable reliance." If appellants were to prevail here, the State of Montana would be enriched to the extent of additional work done by Haggart, without showing any negligence or misconduct on the part of the contractor. Not only would individual interests represented here suffer an injustice, but so would the taxpaying public in general. The judgment is affirmed. JAMES T. HARRISON, C. J., and DOYLE, ADAIR and JOHN C. HARRISON, JJ., concur.

May 11, 1967

e329923c-375d-475d-bad5-531a89788394

Chevron Oil Co. v. Oil and Gas Conservation Com'n

435 P.2d 781

11350

Montana

Montana Supreme Court

435 P.2d 781 (1967) CHEVRON OIL COMPANY, Plaintiff and Appellant, v. OIL AND GAS CONSERVATION COMMISSION, Robert H. Scott and Virgil Bakke, Defendants and Respondents. No. 11350. Supreme Court of Montana. December 27, 1967. *782 Crowley, Kilbourne, Haughey, Hanson &amp; Gallagher, James M. Haughey (argued), Billings, for plaintiff and appellant. John Risken (argued), Helena, Loren J. O'Toole (argued), Plentywood, for defendants and respondents. JAMES T. HARRISON, Chief Justice. This is an appeal from a judgment for the defendants-respondents in an action brought by the plaintiff-appellant to have Order No. 6-66 of the Montana State Oil and Gas Conservation Commission declared invalid and set aside, and to enjoin the Commission from applying or giving effect to the order. The case was presented to the district court on a stipulation of facts and issues. It appears that all of Sections 1 and 12 of Twp. 37 North, Rge. 57 East, Sheridan County, Montana, lie within the boundaries of the Flat Lake Oil Field as defined by the Montana State Oil and Gas Conservation Commission (hereafter called the Commission). By its Order No. 10-65 the Commission established spacing rules for the field, and in such order provided that the field should be developed on the basis of one well per 160-acre tract, with the permitted well location in each tract to be in the approximate center of the NE quarter of each tract. On the basis of this order, wells were drilled in Sections 1 and 12. All the wells in Section 12 were producers. One well was drilled in Section 1. This well was drilled in the SE ¼ and in accordance with the spacing rules for the field. It was a dry hole. The landowner of the SW ¼ Virgil Bakke, and the oil and gas lessee, Robert H. Scott, requested an exception to the normal spacing in the field so that they could drill a well in the center of the SE ¼ SW ¼ of Section 1 rather than in the center of the NE ¼ SW ¼ as was authorized by the field spacing rules. The basis for respondents Scott and Bakke's application for an exception to the spacing rules was that the well location in the SW ¼ under the authorized spacing rules was allegedly beyond the end of the Flat Lake Pool. Yet there was probably oil under part of the SW ¼. Scott and Bakke wanted to drill at a location which would result in giving them any oil under their land. Under the rule of Pattie v. Oil &amp; Gas Comm., 145 Mont. 531, 402 P.2d 596 (1965), the Commission was required to consider Scott and Bakke's correlative rights to the oil under the SW ¼ in an application for an exception to the field spacing rules. By the Commission's Order No. 6-66, the exception location was granted over the protest of the appellant, which owns the lessee's interest in the wells in Section 12. The order did not in any way limit the production rate or restrict the quantity of oil to be produced by respondents Scott and Bakke in the event they should encounter oil after drilling at the exception location. Approximately thirteen days later, appellant applied for a rehearing, which was denied. Appellant brought this action, and subsequently the well was drilled and completed as a producer. The parties entered into a stipulation in which the facts were stated and the issues agreed to be the following: (1) Whether Order No. 6-66, Docket No. 2-66, of the Montana Oil and Gas Conservation Commission, granting an exception to the prescribed field-wide pattern location, in response to the application requesting an exception location because the pattern location was allegedly beyond the edge of the pool, is invalid because said order did not *783 include a finding of fact to the effect (a) that the requested exception location is located on the edge of a pool or field and adjacent to a producing unit, or (b) that for some other reason specified in the order, the requirement to drill the well at the authorized location on the spacing unit would be inequitable or unreasonable; (2) Whether the Commission possesses the authority to limit the production rate or otherwise control the quantity of oil or gas to be produced from a well where there has been no showing of waste occurring, in order to protect the correlative rights of owners of interests in production from adjoining lands; and (3) And, if issue (2) above is answered in the affirmative, whether the Commission's failure to include in order No. 6-66 any provisions which would appropriately limit the production rate or otherwise control the quantity of oil to be produced from the Scott-Bakke exception well so as to prevent defendants Scott and Bakke from producing more than their reasonable and equitable share of the oil in the Flat Lake Field, constituted a failure to protect the correlative rights of adjoining lessees and lessors, and is therefore unlawful. In its findings of fact, conclusions of law and judgment, the district court concluded that the findings of fact in Order No. 6-66 were adequate, and thus decided issue (1) in the negative. On this appeal, the appellant does not challenge the district court's determination of issue (1). However, the district court also found and concluded, in considering issue (2), that the Commission has no authority to limit the production rate or otherwise control the quantity of oil or gas produced from a well, where there has been no showing of waste occurring, in order to protect the correlative rights of owners of interests in production from adjoining lands. It is this finding and conclusion which appellant contends is in error. The question for this court is whether the Commission has the authority, in the absence of a showing of waste, to protect correlative rights when an exception location is granted. The authority of the Commission to grant exceptions to field spacing rules is found in R.C.M. 1947, § 60-129, subd. C. We said in Pattie v. Oil &amp; Gas Comm., supra, at p. 537, 402 P.2d at p. 599, that "Unless the Montana Act is flexible enough to permit the Commission to make orders with an eye to the interests of adjacent landowners in sharing in the common supply the legislation would have to be held unconstitutional as a deprivation of property without due process of law * * *." We then found it was implicit in section 60-129, subd. C, that the Commission had the authority and duty to consider correlative rights in granting exceptions to field spacing rules. It was on this case that Scott and Bakke based their application for an exception to the field spacing rules. The respondents, Scott and Bakke and Commission, now contend that the consideration of correlative rights must be limited to only the rights of the applicant for the exception location. We cannot agree. Correlative rights are not a one-way street. The authority of the Commission to limit production to protect the correlative rights of adjoining owners when an exception location well is granted is a natural facet of the authority to consider correlative rights when granting the exception-location. For a consideration of the elements and factors involved in correlative rights in Montana under the Montana Oil and Gas Conservation Act see the Pattie case, supra. As respondents state in their brief, "the controlling property right is that of the applicant to production from his property," not from an adjoining owner's property. The Commission has the authority to restrict the production of the exception well, on a proper showing, so that it does not result in a taking of production from an adjacent owner's property. This authority is only an incident of the authority to grant exceptions to established spacing rules. Such order must naturally be consistent *784 with the purpose of the Conservation Act and not result in waste. Just as the Act protects the rights of the owner to capture his share of the oil and gas when the pool is only under part of his land, it must protect the adjoining landowners from having their share of the oil and gas appropriated by the exception location well. To hold otherwise would be the equivalent to operating under the Rule of Capture theory but without the protection afforded an adjoining landowner under the Off-set Drilling Rule theory. Although no exact or precise determination can be made as to the amount of oil or gas under each tract, it can be made within reasonable limits and subject to redetermination as more knowledge is acquired about the particular field. All factors involved in the production from the exception location well should be taken into account. The respondents emphasize that the appellant did not offer any evidence at the hearing of the Commission on the application for the exception location. They also state that this court must find that the acts of the Commission were arbitrary or unreasonable in order to sustain appellant's position. This is not so. The Commission denies that it possesses the authority to limit production from the exception location well in the absence of a showing of waste. They did not make any findings as to injury of adjoining owners' correlative rights. We find they have the authority to limit production if the evidence supports a finding that the adjoining owners' correlative rights are jeopardized. The respondents have stipulated that this was one of the issues to be decided in this case. The Commission has granted, and the district court has upheld, the granting of the exception location well. We do not overrule this finding. The Commission must now hear evidence on the issue of injury to the correlative rights of adjoining landowners and determine if there are grounds for the exercise of its authority to limit production of the exception location well. The judgment is thus reversed in part, and the cause remanded to the district court with direction to enter a judgment consistent with what has been hereinbefore stated, and providing for return of the cause to the Oil and Gas Conservation Commission for further proceedings. MR. JUSTICES HASWELL, ADAIR, CASTLES and JOHN CONWAY HARRISON concur.

December 27, 1967

a5f41577-874f-4b0b-ad33-0b4d115fec4a

Bjerum v. Wieber

427 P.2d 62

11224

Montana

Montana Supreme Court

427 P.2d 62 (1967) Lloyd B. BJERUM and Velma M. Bjerum, Plaintiffs and Respondents, v. Joseph P. WIEBER and Josephine M. Hogan, A CO-partnership, Defendants and Appellants. No. 11224. Supreme Court of Montana. Submitted February 7, 1967. Decided April 28, 1967. *63 Worden, Worden, Thane &amp; Robb, Donovan Worden, Jr. (argued), Missoula, for appellants. Tipp, Hoven &amp; Brault, Vernon Hoven (argued), Missoula, for respondents. JOHN C. HARRISON, Justice. This is an appeal from a judgment in the amount of $25,000 arising out of an action to recover damages for an alleged breach of an agreement to lease a piece of property known as the "Park Hotel" situated in Missoula County. The cause was tried without a jury. The briefs and exhibits present the following information concerning the ownership and transfers of interests in the Park Hotel. A copy of the Memorandum Agreement signed by Josephine M. Hogan, Joseph P. Wieber and Lloyd B. Bjerum is shown below: This agreement made at Missoula, Montana this 28th day of December, 1961, between: Joseph P. Wieber and Phyllis D. Wieber and Josephine M. Hogan, Lessors and Lloyd B. Bjerum and Velma M. Bjerum, Lessees. Witnesseth: That Lessors shall lease the Park Hotel described as shown on the attached Description and made a part hereof Together with the attached Inventory of Personal Property on terms as follows: From these basic facts the court made its finding of fact and conclusions of law, which will be set forth for discussion. They are: "I. That on the 28th day of December, 1961, the defendants, Joseph P. Wieber and Josephine M. Hogan, were partners owning the Park Hotel in Missoula, Montana, under and by virtue of a Contract for Deed between themselves as co-partners, and one Peter M. Lambros. "II. That prior to the 28th day of December, 1961, the defendants had entered into a contract for the sale of the Park Hotel to one Eric Anderson, and that on the 27th day of November, 1961, the defendants had caused to be served upon Eric C. Anderson a Notice of Forfeiture of the said sales contract for the reason that the said Eric C. Anderson was in default and had not complied with the terms and conditions thereof. "III. That prior to the 27th day of November, 1961, and after the execution of the sales contract between the defendants and Eric C. Anderson the plaintiffs had entered into a contract for the purchase of the Park Hotel from Eric Anderson and had paid to the said Eric Anderson the sum of $24,000.00 upon the execution of the said contract. "IV. That on the 28th day of December, 1961, the plaintiffs and the defendants entered into a Memorandum Agreement, plaintiffs' Exhibit 3 in the above-entitled cause and as consideration therefor the plaintiffs paid to the defendants the sum of $1,000.00 together with a release of any and all claims that the plaintiffs might have against the defendants as of the date of the execution of the Memorandum Agreement (Exhibit 3), said Release being plaintiffs' Exhibit 4 in the above-entitled cause, together with Quit Claim Deeds to the Park Hotel premises, being plaintiffs' Exhibit 5 in the above-entitled cause. "V. That pursuant to the Memorandum Agreement, plaintiffs' Exhibit 3, defendants were to deliver to the plaintiffs a standard form of lease to the Park Hotel premises together with a contract for the purchase of the premises by the plaintiffs from the defendants, the Memorandum Agreement containing an option for the purchase of said premises at the end of one (1) year after the lease agreement was entered into. "VI. That the defendants at no time tendered to plaintiffs a standard form of lease and/or a purchase contract as provided *65 for in the Memorandum Agreement, plaintiffs' Exhibit 3. "VII. That on the 1st day of March, 1962, the plaintiff was compelled to remove himself from the Park Hotel premises for the reason that the sellers under the contract of purchase between defendants and Lambros was in default by the purchasers, the defendants here. "VIII. That the plaintiffs purchased from the City of Missoula a liquor license for the calendar year of 1962 at a cost to the plaintiffs of $500.00; that upon the execution of the Memorandum Agreement plaintiffs delivered to the defendants the sum of $1,000.00. "IX. That on the 1st day of March, 1962, the plaintiff was the owner of a State of Montana liquor and beer license of the value of $25,000.00 and that defendant by virtue of his removal from the premises of the Park Hotel is no longer the owner thereof. "X. That prior to the 28th day of December, 1961, the plaintiffs had improved the Park Hotel premises by the establishment of a cafe therein and obligated themselves in connection therewith to the sum of $6,100.00, and that on the 28th day of December, 1961, said cafe was in operation on the said premises. That in the latter part of January of 1962 the plaintiffs paid to the defendants the further sum of $200.00. "XI. That the defendants, are not capable of complying with the terms of the Memorandum Agreement in that they are no longer the owners of the Park Hotel premises, the subject of the Memorandum Agreement and the purchase option. "From the foregoing facts the Court concludes: "I. That the defendants did not, and cannot, comply with the terms of the Memorandum Agreement of December 28, 1961. "II. That the plaintiffs have been damaged by the nonperformance of the terms of the agreement of December 28, 1961, in the sum of $25,000.00, as prayed; and that defendants may take no damages on their counterclaim. "III. That the plaintiffs are entitled to their costs and disbursements herein expended." While the appellants fail to set forth in their brief their specifications of error, to the trial court's findings and conclusions, four contentions are made which we will discuss: 1. The court erred due to its finding that the error for the breach of contract (agreement) was by the appellants while it should have found the breach by respondents. 2. The court erred in finding wrongful acts by the appellants which entitled the respondents to a judgment. 3. There is no substantial proof of damage. 4. The damages, if any, took place prior to the Memorandum Agreement upon which the respondents found their cause of action and which had been released by appellants at the signing of the Memorandum or for the alleged loss of a liquor license. Before considering the above contentions, and in view of our disposition of this case in returning it to the district court for a new trial, we desire to call attention to this record. Ordinarily in a situation of this kind we could make findings and conclusions and direct the entry of judgment. However, the court has spent many hours examining the exhibits, reading the record and briefs, and conferring among ourselves. The record is so sparse, in so many particulars, that we can only surmise that there were pre-trial conferences or other conferences between court and counsel where facts were presented but not included in the appellate record. Considering appellants' first contention we find that the court's assessing the breach of agreement to the appellants is clearly erroneous. As previously noted at the end of the first month of occupancy under *66 the agreement, January 1962, the respondents were already $500.00 behind in payments. To argue, as the respondents here do, that appellants failed to tender a copy of a lease to respondents, is to fly in the face of what record was made. The non-performance in respondents' failure to make the payment is clear and undenied, and the submission to them of a lease would have been a useless act. The appellants' exhibit 2, a letter written by respondent Lloyd Bjerum to appellant Joseph Wieber on February 12, 1962, shows the fiscal difficulties of respondents. "Dear Joe. It goes real slow here. I gave $100 to Montana Power again today. Rent is real bad as the men seem to be out of work and a lot of the unemployment checks don't come. I will keep working and if I get Montana Power satisfied I can work on your money for you. Maybe some will come in pretty soon. Sincerely, Lloyd B." Here we have an ample showing of a man, the respondent, withholding payments to pay the most pressing bills; and not a lessee waiting to receive a copy of the lease before making any further payments. With the appellants' second contention that the court erred in its finding that appellants, had caused the breach by some wrongful act we must agree. This record is devoid of any wrongdoing on the part of the appellants that would support the court's conclusion that "defendants did not, and cannot, comply with the terms of the Memorandum Agreement of December 28, 1961." Considering the third contention of appellants concerning damages, we must agree that here too the court erred in finding for the respondents in the amount of $25,000. A judgment for damages must be supported by substantial evidence. Here we can only guess, speculate, or surmise that the trial court reached its award on one of two theories (1) that respondents were out $24,000, paid to the Andersons plus $1,000 paid down at the time of the Memorandum Agreement, or (2) that the liquor license was worth the figure given by the respondents of $20,000 plus some $5,000 incidentals of which proof is not clear or adequate. Taking the first theory in trying to arrive at how the court found the damages it should be noted that both the respondents and appellants agreed that the only document to be considered in this case was the Memorandum. To consider the $24,000 paid by respondents to Anderson would be error, for, as previously pointed out in this opinion the memorandum allowed the respondents to purchase the hotel for $115,000 from the appellants while in the agreement made with Anderson less than five months before he would have paid $172,000.00. Considering the second theory that the court might have used the loss of the liquor license we must agree with the appellants' contention that "the loss of this license was entirely within the control of the respondents and that this loss was occasioned by the respondents' own actions and not through any cause of appellants." Too, there was insufficient testimony given at the hearing to warrant setting any true value on the license. The final contention made by the appellants concerns the liquor license, but here again there is not one scintilla of evidence as to what happened to the licenses after March 1, 1962, and except for respondents' valuation no substantial evidence to base a value of the licenses. For the above reasons the cause is reversed and remanded to the district court for a new trial. Each party to pay his own costs on this appeal. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES ADAIR, DOYLE and CASTLES concur.

April 28, 1967

6c8d02c7-7ac5-42f4-8c29-3dcb21eb2a69

Sheehan v. DeWitt

430 P.2d 652

11178

Montana

Montana Supreme Court

430 P.2d 652 (1967) William F. SHEEHAN, Plaintiff and Respondent, v. E.A. DeWITT, Defendant and Appellant. No. 11178. Supreme Court of Montana. Submitted June 20, 1967. Decided July 28, 1967. *653 Skelton &amp; Hendricks, Missoula, Robert R. Skelton (argued), Missoula, for appellant. Wade Dahood (argued), Anaconda, for respondent. CASTLES Justice. This is an appeal from a judgment entered on a jury verdict. The plaintiff brought the action to recover damages for an assault upon him by defendant. The verdict and judgment were $1,500 as compensatory damages and $5,000 as exemplary damages. Plaintiff is the county attorney of Granite County. In his capacity as county attorney he had been informed by one Bailey that defendant, appellant E.A. DeWitt, here, had taken some of his, Bailey's cattle and refused to give them to him. Plaintiff wrote a letter requesting defendant to come to his office to discuss the situation; the defendant went to plaintiff's office and the following account of the assault was related by plaintiff: "* * * I extended my hand and shook hands with him, and I informed him who I *654 was, and told him that my name is William Sheehan, and I was the county attorney, and I thanked him for coming in. He sat down at one side of the desk, and I sat down on the other side of the desk, and I think I should tell you that it is a different desk than we have there now, as it was a very narrow desk at that time, and since then we have a much wider one. Well, then we visited for a moment or two about maybe the weather or something like that, and he announced to me that he had been an attorney at one time, and practiced, if I remember right, in Oregon, and I again stepped up from my chair and extended my hand and shook hands with him, and I congratulated him, and said to him that we shouldn't have very much trouble over this thing then, because I said to him that he would know and understand why I wanted to talk to him, and everything was very agreeable. So then I proceeded to tell him, with details, about what this situation was that I have just explained to you, and I noticed that he was becoming a little angry, and I made it very clear to him that I was not accusing him, but all that I had asked him up there for was to see, because I have been in this game a while, and I wanted to know what both sides of the thing was, and what the explanation might be, and I asked him to please wait until I had finished, and then he could tell me actually what happened, and so I went on then and explained some more of the details of this contract, and as I remember it, twice I asked him to wait, as he broke in and wanted to talk, and I asked him to wait until I had finished, and I could see that he was getting a little upset, and then I got down to the end of it, and I said that Mr. Bailey had accused him of stealing his cattle, and right then he said, `You are a God-damn liar,' and he hit me in the face, and it was just so quick that I didn't realize that a man that old could do it. So I reached for the telephone, realizing that he was an old man, to call Nick to come and get him, and I did say then, `You are going to be arrested,' in no uncertain terms, and, as fast as that, he grabbed the telephone out of my hand, and I stepped around my desk and passed him to the door, and I will admit that I was really angry by this time, and I said, `Now, you get out of here,' and I held the door open, and he really moved out. Now, that is the story." The injury was described by the plaintiff as follows: "Q. Where were you struck? A. In the chin. * * * "Q. Was it a hard blow? A. Yes. "Q. Did it cause pain? A. Yes. "Q. Did it cause any bleeding? A. Yes. "Q. And what did you do? A. I walked out in the hall from my office from my outer office, and my secretary was out, and I walked out in the hallway, and my secretary and the clerk of court were walking up the stairs, and I well, it is hard to remember exactly the words that I said, but I was really upset by the whole affair, and was kind of numbed by it, and one of the women suggested to me that I had better get my handkerchief because your face is bleeding, and I proceeded to wipe it off, and then is when I began to realize what had happened, and immediately I tried to see where he had gone because I wanted him picked up, and when I couldn't see him outside of the courthouse, why then I proceeded to Dr. Cunningham's office for an examination, to see if anything had actually hurt my jaw or anything like that. "Q. You went to see Dr. Cunningham? A. Yes. "Q. And it turned out to be not serious? A. That's right. "Q. And the doctor attended to you briefly and then released you? A. That's right. "Q. And then what did you do, Mr. Sheehan? A. Well "Q. Did you come back to your office at all, Bill, do you recall? A. I don't exactly remember that, but I remember that I *655 was tremendously upset, and it seems to me like I went home." As to the injury previously described by quoting plaintiff's testimony, Dr. Cunningham was called by plaintiff and testified that upon examination there were contusions of the lower lip and that no treatment was necessary. The appellant sets forth four issues for review, but as we view the case, only one issue need be reviewed to determine the case; that one is that the jury verdict was excessive. The only evidence concerning damages is that previously set forth. Not even a doctor bill was put into evidence. Plaintiff could not even remember whether he went home or came back to the office. The doctor who examined him said no treatment was necessary and that it was not serious. On this minimal showing a verdict of $1,500 for compensatory damages was returned. It seems that just such a simple recitation as this answers the issue that damages awarded were excessive. Plaintiff, respondent here, seemingly recognizes the lack of proof of damages because in this brief he goes on to relate that because of defendant's bragging around the county about slapping the county attorney that the county attorney "did suffer from the humiliation and mocking of the citizens in the community because it was quite a joke for several months." Perhaps this is so, but if it is, it simply was not proven or even mentioned. Plaintiff goes further in his brief to recite that $5,000 as compensatory damages had been prayed for in the complaint, and the jury had reduced this to $1,500.00, and that somehow this bolsters the proof of the amount of damages. The logic of this reasoning escapes us! Keeping in mind the only proof of damages, we shall call it minimal, though a poke in the chin by an assailant who he described as being "just so quick that I didn't realize that a man that old could do it" may be more serious than minimal. The defendant described himself, and it was not challenged as, "Well, I am all crippled up, but I done the best I could my hands is all crippled up with arthritis * * *." Our attempts to describe the injury, and thus the only measure of damages proven here (lacking as the proof did, medical proof, loss of earning, any substantial pain or impairment, or even inconvenience) is made in an effort to achieve some sort of yardstick to gauge whether the verdict was excessive. A discussion of damages generally by Federal District Judge William J. Jameson in a reported opinion in Chavez v. United States, 192 F. Supp. 263, 270 (D.C. 1961) is pertinent here. In that case the injuries being discussed were a displaced fracture of the middle third of the left femur, lacerations on his shoulder and back which left scars, ten days hospitalization, traction, intramedullary nails, crutches for five months, further hospitalization for removing the nail from his leg and considerable pain and discomfort. There Judge Jameson stated: "Under the Montana law the measure of damages `is the amount which will compensate for all the detriment proximately caused' by the accident, `whether it could have been anticipated or not.' Section 17-401, R.C.M. 1947. In personal injury actions there is no measuring stick by which to determine the amount of damages to be awarded and each case must depend upon its peculiar facts. Pfau v. Stokke, 1940, 110 Mont. 471, 103 P.2d 673, 674; Jewett v. Gleason, 1937, 104 Mont. 63, 65 P.2d 3; Wilson v. Northland Greyhound Lines, D.C.Mont. 1958, 166 F. Supp. 667; 1938, 15 Am.Jur. 480, Damages § 71. "Aside from the medical and hospital expenses totaling $849.30, there is no accurate measurement for the recovery of damages for the personal injury sustained by Darryl. An allowance may be made for mental and physical pain and suffering. Bourke v. Butte Electric &amp; Power Co., 1905, 33 Mont. 267, 83 P. 470. "In my opinion $1,250 in addition to the medical and hospital expenses of $849.30 *656 and loss of motor bike in the sum of $189 or a total of $2,288.30 will fairly compensate Darryl Sorenson and his parents for the injury sustained and the expenses incurred. It is understood that this sum will cover both the child's cause of action pursuant to Section 93-2805, R.C.M. 1947, and the parents' cause of action, pursuant to Section 93-2809." Our quotation here is not meant as an approval or disapproval of the amount, but besides accurately stating the law as far as it was involved there, the quotation does suggest that some measuring device beyond just any amount is applicable, and further that by comparison to the injuries in the Chavez case, the injuries here are indeed minimal. The punch in the chin did create some damage, but what amount was proven? We also point out that we are not herein concerned about exemplary damages at this point. In Tanner v. Smith, 97 Mont. 229, 241, 33 P.2d 547, 552, this court observed: "This court has consistently adhered to the rule that `it is peculiarly within the province of juries to fix the amount of compensation to be paid for personal injuries, unless the result of their deliberation is such as to shock the conscience and understanding of the court.' Wise v. Stagg, [94 Mont. 321, 22 P.2d 308,] supra; Kelley v. John R. Dailey Co., 56 Mont. 63, 181 P. 326; Staff v. Montana Petroleum Co., 88 Mont. 145, 291 P. 1042. But this court, in common with courts generally, has not hesitated to scale judgments in cases where the amount has been so great as to shock the conscience and understanding of the court. See Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 P. 673; Forquer v. North, 42 Mont. 272, 112 P. 439; Wise v. Stagg, supra. "In this case at bar we are impressed by the claim that the award of the jury was so excessive as to effect the above result." In Jewett v. Gleason, 104 Mont. 63, 70, 71, 65 P.2d 3, 4, the same issue was discussed as follows: "The most serious assignment of error is that which relates to the size of the verdict and the judgment, and is to the effect that it is excessive and so far out of proportion to the injuries suffered as to indicate that it was given under the influence of passion and prejudice. The question thus tendered must be considered in the light of the general principle that in this type of case there is no measuring stick by which to determine the amount of damages other than the intelligence of the jury. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025, and cases cited. "Applicable rules with relation to this matter have been often stated by this court and many other courts. The proposition has always been a puzzling one for courts to solve. In the case of Ashley v. Safeway Stores, Inc., 100 Mont. 312, 47 P.2d 53, 62, the rule in this jurisdiction was restated in the following language: `It is a well-established rule of this court, and of courts generally, that the amount of damages to be paid for personal injury is peculiarly within the province of juries, and that such findings are final and conclusive unless the results are such as to shock the conscience and understanding of a court. It is always difficult to decide just when and under what circumstances that kind of condition exists. We do not deem it our prerogative to substitute our judgment for the judgment of a jury in the ascertainment of damages where the finding is based upon conflicting evidence. The rule in such a situation is no different from that obtaining in all controverted fact issues properly submitted to juries. It is not a question of the amount this court would have awarded under the circumstances. It is not the amount which in our opinion would compensate the injured party; rather it is a question of what amount of damages will the record in the case support when viewed, as it must be, in the light most favorable to the plaintiff. It is when the testimony the facts of the case fails to support and justify a verdict and judgment that the conscience and understanding of the court are *657 shocked. Such a result must of necessity be shocking when it is understood as fundamental that solemn judgments of courts must be predicated upon definite and tangible supporting facts. "`We believe it is our duty to leave undisturbed and to affirm any judgment, regardless of size or extent, that has reasonable support in the evidence, even though the evidence is conflicting and controverted. It is not our province to resolve such controversies; that problem is for the jury. But, where the amount of damages awarded cannot be reconciled with a conscientious interpretation of evidence or a rational understanding of the facts as a whole, the court may then say that its conscience and understanding are shocked.' "In the Ashley case, supra, the verdict was approved in part and condemned in part. The decision was based upon the precedent established by the following cases wherein verdicts and judgments were ordered scaled down as an alternative for a new trial; Kennon v. Gilmer, 5 Mont. 257, 5 P. 847, 51 Am. Rep. 45; Forquer v. North, 42 Mont. 272, 112 P. 439; Wise v. Stagg, 94 Mont. 321, 22 P.2d 308; Tanner v. Smith, 97 Mont. 229, 33 P.2d 547. "Many judgments alleged to have been excessive on the grounds mentioned have been sustained by this court. Some of them have seemed excessive; but an examination of the opinions will disclose that in each instance resort was had to a consideration of the particular facts of the case, and that by reason of such facts it was held that the verdicts and the judgments were sufficiently sustained. Compare the following cases: Staff v. Montana Petroleum Co., 88 Mont. 145, 291 P. 1042; McNair v. Berger, 92 Mont. 441, 15 P.2d 834; Fulton v. Chouteau County Farmers' Co., supra; McCartan v. Park Butte Theater Co., 103 Mont. 342, 62 P.2d 338, and authorities therein cited." Now then, with these views in mind, $1,500 compensatory damages for such minimal proof of damages is shocking. We would be inclined to scale it down except for the fact that an additional $5,000 exemplary damages were allowed. We have not separately discussed the exemplary damage feature, but it too would seem to be out of line. It is clear that, where an assault is malicious, punitive damages may be awarded. (Hageman v. Arnold, 79 Mont. 91, 254 P. 1070). The question of malice is generally for the jury. (Vaughn v. Mesch, 107 Mont. 498, 87 P.2d 177). Malice is defined by statute. (R.C.M. 1947, § 19-103, subd. 18.) We observe that we, members of the Supreme Court, are also public officials, and have been county attorneys. We take a dim view of anyone assaulting public officers doing their legal duty. Nevertheless, considering that the proof of actual damages was minimal, that the plaintiff's own description of the assailant could not be interpreted as one describing much of an assaulting force, the further fact that criminal remedies were available and were used in an attempt to achieve punishment or for sake of example, we feel that $5,000 exemplary damages are not consistent with a conscientious attempt at fairness. In an effort to end the litigation, and admittedly with no yardstick, we scale the judgment down to $100.00 as compensatory damages and $500.00 as and for exemplary damages. If this scaled down judgment be accepted by plaintiff within ten days after remittitur the judgment as so modified is affirmed. If such scaled down judgment be not accepted the judgment is reversed as to damages alone, affirmed as to liability, and remanded for trial on the issue of damages alone in conformity with our discussion hereinbefore. It is so ordered. JAMES T. HARRISON C. J., and ADAIR and JOHN CONWAY HARRISON, JJ., concur.

July 28, 1967

bbe948af-6a71-4116-8eb3-2da74a381af2

City of Harlem v. State Highway Commission

425 P.2d 718

11162

Montana

Montana Supreme Court

425 P.2d 718 (1967) The CITY OF HARLEM, a municipal Corporation, and Clarence Olson, Plaintiff and Appellant, v. STATE HIGHWAY COMMISSION of the State of Montana, and the State of Montana, Acting By and Through the State Highway Commission of the State of Montana, Defendant and Respondent. No. 11162. Supreme Court of Montana. Submitted January 13, 1967. Decided March 22, 1967. *719 Harry L. Burns (argued), Chinook, for appellant. Harry C. Alley (argued), Helena, for respondent. DOYLE, Justice. This is an appeal from an order dismissing and dissolving an injunction prohibiting the State Highway Commission from proceeding with construction of a primary highway project by-passing the City of Harlem, Montana. For many years Highway No. 2, a primary highway, has been located adjacent to the business district of Harlem, Montana. On June 26, 1957, an agreement was executed between the State Highway Commission and the United States Bureau of Public Roads wherein the State Highway Commission agreed to construct 4.7 miles of secondary highway which would by-pass the Harlem business district. Pursuant to this agreement the State Highway Commission expended $90,926.70 to acquire all of the land necessary for the right-of-way except for one tract which for some time has been the subject of litigation. Additional preparation for the new route was made by letting a contract to construct a bridge across the Milk river which has since been completed and fully paid for. An agreement was entered into between the City of Harlem and the State Highway Commission on June 8, 1964, wherein it was agreed that the new highway should be located over the southwest corner of the city. During 1965 the 39th Montana Legislature enacted Chapter 210, Laws of Montana, which required the State Highway Commission to secure the consent of incorporated municipalities before by-passing them with new secondary highways. The material part of Chapter 210, Laws of Montana, was codified as Section 32-1628, R.C.M. 1947, and reads as follows: "32-1628. Bypassing of municipalities consent of municipal governing body. (1) The highway commission shall not construct highway bypasses or highway relocations projects without prior consent of the governing body of an incorporated municipality when the bypasses or projects: "(a) Are not part of the national system of interstate highways built under the national defense highway act; and *720 "(b) Divert motor vehicles from an existing highway route through a municipality incorporated prior to January 1, 1965. "(2) The highway commission shall notify the governing body of such municipality by certified mail that they propose to bypass the municipality. No contract shall be let nor work commenced until the governing body notifies the commission of its consent, or until the elapse of sixty (60) days after the notice has been sent by the highway commission to such municipality, whichever first occurs. The failure of such municipality to act and notify the highway commission of its action within such sixty (60) day period shall constitute implied consent to the bypass. "(3) Actual consent or refusal to bypass shall be in the form of a resolution, duly adopted by a majority of the members of the governing body of the municipality. "(4) The governing body may not withdraw consent once the highway commission has been notified of such consent. "(5) Nothing contained in this act shall in any way modify the provisions of section 32-1625, R.C.M. 1947." After the enactment of the above-quoted section the City of Harlem brought an action to enjoin further construction of the bypass. The matter was heard on its merits and an order issued releasing the State Highway Department from all prior restraints. From this order the City of Harlem appeals. Two questions are determinative of all of the issues in this appeal. (1) Whether application of Chapter 210, Laws of 1965, to the facts of this case would be retrospective? (2) Whether the legislature intended Chapter 210, Laws of 1965 to be applied retrospectively? The first question requires nothing more than a definition of the word "retrospective." This court has held that the words "retrospective" and retroactive" as applied to laws are synonymous and may be used interchangeably. Continental Oil Company v. Montana Concrete Co., 63 Mont. 223, 231, 207 P. 116, 118. The Continental case further states that a law is retrospective in a legal sense which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions already past. The record clearly shows that the State Highway Commission had for several years prior to the enactment of Chapter 210, Laws of 1965, been actively engaged with construction of the Harlem bypass. Rights and obligations had been acquired and assumed as the result of the State Highway Commission's exercise of its power to contract under section 32-1608, R.C.M. 1947. Prior to the enactment of Chapter 210, Laws of 1965, the State Highway Commission had the power to select routes for highways which by-passed municipalities without first gaining consent. The enactment of this new law imposed a restriction on the State Highway Commission by removing that power and imposed the new duty of gaining consent. Therefore we hold that application of section 32-1628 to the facts of this case would be retrospective. Section 12-201, R.C.M. 1947, provides a strict rule for the retrospective application of statutes in the following language: "No law contained in any of the codes or other statutes of Montana is retroactive unless expressly so declared." This section provides a rule of construction which requires that the intent of the legislature is to be gained from the act itself and from no other source. Mills v. State Board of Equalization, 97 Mont. 13, 33 P.2d 563. We can find nothing in section 32-1628 or from Chapter 210, Laws 1965, which expressly declares a legislative intent to apply the law retrospectively. Finding no error the order dismissing the injunction is affirmed. JAMES T. HARRISON C.J., and ADAIR, JOHN C. HARRISON and CASTLES JJ., concur.

March 22, 1967

dce7dbac-a01a-42a7-a627-206d751d0129

STATE v FINLEY

N/A

13358

Montana

Montana Supreme Court

No. 13358 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- JOHN LeROY FINLEY, Defendant and Appellant. Appeal from: District Court of the First Judicial District, Honorable Gordon R . Bennett, Judge presiding. Counsel of Record: For Appellant: Small, Cummins and Hatch, Helena, Montana Gregory A. Jackson argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Charles Graveley, County Attorney, argued, Helena, Montana Submitted: May 11, 1977 Decided: JUL f 2 1 ! 3 n Clerk M r . Chief J u s t i c e Paul G. Hatfield delivered t h e Opinion of t h e Court. Defendant John Leroy Finley appeals from a judgment of t h e d i s t r i c t court,Lewis and Clark County, of conviction f o r d r i v i n g a motor v e h i c l e upon t h e highways while under t h e influence of intoxicating liquor. O n t h e n i g h t of January 18, 1976, defendant's wife l e f t t h e i r family home a f t e r an argument with defendant. Defendant drove h i s automobile on t h e c i t y s t r e e t s of Helena, Montana, i n an attempt t o l o c a t e h i s wife. When defendant's wife discovered defendant w a s driving t h e family c a r , she telephoned t h e Helena c i t y p o l i c e and reported defendant was d r i v i n g while intoxicated. The p o l i c e responded t o t h e c a l l , stopped defendant as he w a s returning t o h i s house, concluded he w a s indeed d r i v i n g while intoxicated, and placed him under a r r e s t f o r t h e offense of driv- ing a motor vehicle, while under t h e influence of i n t o x i c a t i n g l i q u o r . The a r r e s t i n g o f f i c e r s , according t o uncontroverted testimony a t t r i a l , then advised defendant of h i s Miranda r i g h t s , took him i n t o custody, and transported him t o t h e Helena c i t y jail. From t h e t i m e defendant entered t h e p o l i c e s t a t i o n t o t h e t i m e he w a s placed i n a j a i l c e l l , h i s words and a c t i o n s w e r e recorded on an audio-video t a p e recording. Defendant d i d not give h i s consent t o t h e recording; nor d i d t h e p o l i c e inform him they were audio-video taping h i s a c t i o n s and speech. Defendant, who had two previous d r i v i n g under t h e i n f l u - ence convictions, w a s charged under s e c t i o n 32-2142(d), R.C.M. 1947, and arraigned i n d i s t r i c t court, L e w i s and Clark County. Defendant, i n a p r e t r i a l motion, moved t o exclude t h e audio-video tape recording from admission i n t o evidence a t t r i a l . The d i s - t r i c t c o u r t denied defendant's motion and a t t r i a l admitted t h e tape i n t o evidence, over defendant's objections, t o a i d t h e jury i n understanding t h e testimony of eyewitnesses. A t least s i x p o l i c e o f f i c e r s and employees observed defendant while he w a s audio-video taped, and t h r e e of those witnesses t e s t i f i e d a t t r i a l . A s i x person jury found defendant g u i l t y a s charged. Defendant w a s t h e r e a f t e r sentenced t o one year i n Montana S t a t e Prison. Defendant appealed h i s conviction, contending t h a t p o l i c e use of audio-video t a p e recording without h i s consent, and ad- mission of t h e t a p e i n t o evidence a t t r i a l , v i o l a t e s t h e s e con- s t i t u t i o n a l l y protected r i g h t s and p r i v i l e g e s : 1. The p r i v i l e g e a g a i n s t self-incrimination, protected by t h e F i f t h Amendment, United S t a t e s C o n s t i t u t i o n , and by A r t . 11, Section 25, 1972 Montana Constitution. 2 . The r i g h t t o not be deprived of l i b e r t y without due process of law, recognized i n t h e Fourteenth Amendment, United S t a t e s Constitution, and i n A r t . 11, Section 17, 1972 Montana Constitution. 3. The r i g h t t o be secure from unreasonable searches and s e i z u r e s , guaranteed by t h e Fourth Amendment, United S t a t e s Con- s t i t u t i o n , and A r t . 11, Section 11, 1972 Montana Constitution. Defendant's primary contention is t h a t h i s c o n s t i t u t i o n a l l y protected p r i v i l e g e a g a i n s t self-incrimination was abridged when h i s words and a c t i o n s w e r e recorded on audio-video t a p e without h i s consent o r knowledge, and then submitted t o t h e jury as evi- dence a t t r i a l . Defendant claims t h e audio-video t a p e was in- criminating evidence obtained from him by compulsion, and must be supressed under t h e r u l e of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L ed 2d 694. Under t h e F i f t h Amendment t o t h e United S t a t e s Consti- t u t i o n , and under t h e s u b s t a n t i a l l y i d e n t i c a l l y worded A r t . 11, Section 25, 1972 Montana Constitution, no person may be compelled t o t e s t i f y a g a i n s t himself i n a criminal proceeding. This Court has held the Montana constitutional guarantee of the privilege against self-incrimination affords no broader protection to an accused than does the Fifth Amendment. State v. Armstrong, Mont . , 552 P.2d 616, 33 St.Rep. 688. The opinions of the United States Supreme Court, therefore, delineate the maximum breadth of the privilege against self-incrimination in Montana. The Supreme Court has distinguished between testimonial compulsion and compulsion which does not force the accused to be a witness against himself, but merely requires him to be the source of real or physical evidence. Testimonial compulsion is proscribed by the Fifth Amendment and by Art. 11, Section 25, 1972 Montana constitution. The Court in Miranda stated that, to safeguard the privilege against self-incrimination, police must, prior to in- terrogation of a suspect in custody, inform the accused he has the right to remain silent; that anything he says may be used as evidence against him in court; that he has the right to consult a lawyer and have the lawyer present with him during the interro- gation; and, if he is indigent, he may obtain court appointed counsel. Without the Miranda warning or other equally effective measures, the person in custody would not be deemed to have in- telligently waived his privilege against self-incrimination, and any evidence of a testimonial nature obtained from the accused would be inadmissible at trial. The privilege against testimonial compulsion extends to the defendant's written and oral statements as well as to communicative gestures, such as a nod of the head in response to a question. "It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take * * *." Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L ed 2d 908, 916. Real or objective evidence taken from the accused, how- ever, is not protected by Art. 11, Section 25, or by the Fifth Amendment. In Schmerber, results of a test for alcohol in blood taken from defendant despite his refusal to consent to the test, were admissible at trial and did not violate defendant's privilege against self-incrimination. The Court in Schmerber followed a long line of Supreme Court decisions when it held: " * * * The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'cornrnunications' or 'testimony', but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." 16 L ed 2d 916. This Court, too, has long and consistently recognized that, while testimonial compulsion is constitutionally prohibited, the privilege against self-incrimination does not extend to real or objective evidence. State v. Fuller, 34 Mont. 12, 85 P. 369; State v. Campbell, 146 Mont. 251, 405 P.2d 975; State ex rel. Sikora v. Dist. Ct., 154 Mont. 241, 462 P.2d 897. The crucial inquiry, therefore, is whether the audio-video taping of the speech and actions of defendant in the police station constituted con- stitutionally prohibited testimonial compulsion or whether his words and actions recorded on the tape were merely real, physical, or objective evidence. We hold that the audio-video taping in this case was ob- jective evidence and, therefore, outside the scope of Art. 11, Section 25 and Fifth Amendment protection. There is no evidence in the record which indicates the recording contained any speech or gesture of defendant which was testimonial in nature. The tape did not contain defendant's responses to interrogation by police. The audio-video tape was introduced into evidence not for the incriminating content of the words uttered by defendant, but as evidence helpful to the jury in understanding the testimony of the police officers and employees who observed defendant's unsteady walk and slurred speech in the police station. While t h i s Court has n o t s p e c i f i c a l l y r u l e d on t h e a d m i s s i b i l i t y of video t a p e s we now join o t h e r j u r i s d i c t i o n s which have held, provided t h e proper foundation is l a i d , t h a t both motion pic- t u r e s and video t a p e s r e l e v a n t and m a t e r i a l t o contested i s s u e s may be admitted i n t o evidence i n t h e sound d i s c r e t i o n of t h e t r i a l judge. See Annot., 62 ALR2d 686, 701-703 87. This i s a l o g i c a l extension of t h i s C o u r t ' s holdings t h a t sound recordings, S t a t e v. Warwick, 158 Mont. 531, 494 P.2d 627, and photographs, S t a t e v. Harney, 160 Mont. 55, 499 P.2d 802, may be admissible i n evidence. The d e c i s i o n s of c o u r t s i n s e v e r a l o t h e r j u r i s d i c t i o n s support t h e holding t h a t t h e audio-video t a p e involved i n t h i s c a s e w a s o b j e c t i v e , r a t h e r than t e s t i m o n i a l evidence, and as such, d i d not i n f r i n g e defendant's p r i v i l e g e a g a i n s t s e l f - i n - crimination. I n Hendricks v. Swenson, 456 F.2d 503, 506, 507, wherein t h e a d m i s s i b i l i t y of an audio-video t a p e of a defendant's murder confession was i n i s s u e , t h e Eighth C i r c u i t Court of Appeals s t a t e d : " A s t o whether t h e use of such t a p e comes danger- ously c l o s e t o r e q u i r i n g t h e defendant t o incrim- i n a t e himself, w e t h i n k t h i s no more incriminates him t h a t t h e taking of still p i c t u r e s o r blood o r u r i n e samples. Such procedure does not v i o l a t e t h e F i f t h Amendment. [Citing cases.] W e conclude t h a t a video t a p e incriminates t h e defendant only i f t h e statement i t s e l f i s incriminating. I f t h e proper foundation has been l a i d , t h e reception i n evidence of a video t a p e should a i d t h e trier of f a c t . " 456 F.2d 506. The c o u r t s of s e v e r a l s t a t e s have r u l e d on t h e p r e c i s e question of t h e a d m i s s i b i l i t y of motion p i c t u r e s , video t a p e s , and audio-video t a p e s of defendants who have been a r r e s t e d f o r d r i v i n g motor v e h i c l e s while under t h e influence of i n t o x i c a t i n g l i q u o r . The c o u r t s i n t h e following c a s e s held t h a t such t a p e s o r motion p i c t u r e s a r e o b j e c t i v e , r a t h e r than t e s t i m o n i a l evidence, and a r e admissible a t t r i a l without v i o l a t i n g defendants' p r i v i l e g e a g a i n s t self-incrimination. S t a t e v. Fellows, 4 7 Ohio App.2d 154, 352 N.E.2d 631, 635 (video t a p e ) ; C i t y of Piqua v. Hinger, 15 Ohio St.2d 1 1 0 , 238 N.E.2d 766, c e r t . den., 393 U.S. 1 0 0 1 , 89 S.Ct. 484, 21 L ed 2d 466 (motion p i c t u r e s ) ; Thompson v. People, 181 Col. 1 9 4 , 510 P.2d 311, (video t a p e ) ; Lanford v. People, 159 Col. 36, 409 P.2d 829, (sound motion p i c t u r e s ) ; People v. Fenelon, 1 4 Ill.App.3d 622, 303 N.E.2d 38, (video t a p e ) ; S t a t e v. S t r i c k l a n d , 276 N.C. 253, 173 S.E.2d 129, (sound motion p i c t u r e s ) ; Carpenter v. S t a t e , 169 Tex. C r i m . App. 283, 333 S.W.2d 391, (motion p i c t u r e s ) ; Housewright v. S t a t e , 154 Tex. C r i m . App. 101, 225 S.W.2d 417 (motion p i c t u r e s ) . Only one s t a t e has r u l e d t h a t motion p i c t u r e s of a de- fendant who w a s a r r e s t e d on a d r i v i n g while under t h e influence of i n t o x i c a t i n g l i q u o r charge c o n s t i t u t e d t e s t i m o n i a l evidence. The Oklahoma Court of Criminal Appeals i n Spencer v. S t a t e , Okla. 4 0 4 P.2d 46, C r i m . App. 1965,/ruled t h a t Oklahoma's c o n s t i t u t i o n a l p r i v i l e g e a g a i n s t self-incrimination provision was broad enough t o p r o h i b i t use, a s evidence, of motion p i c t u r e s taken of t h e defendant with- o u t h i s knowledge. The c o u r t r e l i e d on Spencer a s a u t h o r i t y f o r its holdings i n two subsequent cases. R i t c h i e v. S t a t e , Okla. C r i m . App. 1966, 415 P.2d 176; Stewart v. S t a t e , Okla. C r i m . App. 1967, 435 P.2d 191. Other j u r i s d i c t i o n s , however, have expressly declined t o follow t h e reasoning of t h e Oklahoma c o u r t i n Spencer. S t a t e v. S t r i c k l a n d , 276 N.C. 253, 173 S.E.2d 129; S t a t e v. Faidley, 202 Kan. 517, 450 P.2d 20. I n a r e c e n t opinion, t h e Oklahoma Court of Criminal Appeals expressly overruled Spencer. Ross v. S t a t e , Okla. C r i m . App. 1976, 556 P.2d 638, 640, c i t i n g S t a t e v. Thomason, Okla. C r i m . App. 1975, 538 P.2d 1080. Because w e hold t h e audio-video t a p e of defendant i n t h e p o l i c e s t a t i o n was o b j e c t i v e evidence, unprotected by defendant's c o n s t i t u t i o n a l p r i v i l e g e a g a i n s t self-incrimination, t h e holding i n Miranda is inapplicable t o t h e f a c t s of t h i s case. W e need not i n t h i s case, t h e r e f o r e , d i s c u s s whether t h e Miranda warning given by t h e p o l i c e t o defendant a t t h e t i m e of h i s a r r e s t would have s u f f i c e d t o s u s t a i n defendant's incriminating t e s t i m o n i a l statements made a t t h e p o l i c e s t a t i o n and recorded without h i s knowledge. Defendant r a i s e d two o t h e r c o n s t i t u t i o n a l i s s u e s which he apparently abandoned, s i n c e he f a i l e d t o d i s c u s s them i n h i s b r i e f . W e s h a l l , however, d e a l with those i s s u e s i n t h i s opinion t o provide guidance i n f u t u r e appeals. Defendant s t a t e d t h e in- troduction of t h e audio-video t a p e i n t o evidence v i o l a t e d t h e due process and search and s e i z u r e c l a u s e s of t h e Montana and United S t a t e s Constitutions. The p r o t e c t i o n s of A r t . 11, Section 17 and A r t . 11, Section 11, 1972 Montana C o n s t i t u t i o n , a r e i d e n t i c a l t o t h o s e of t h e Fourteenth Amendment due process c l a u s e and t h e Fourth Amendment p r o t e c t i o n a g a i n s t unreasonable searches and s e i z u r e s , r e s p e c t i v e l y . For t h e reasons s t a t e d h e r e a f t e r , defendant's due process and search and s e i z u r e claims a r e without m e r i t . This Court has noted t h a t even where evidence obtained from a defendant is " r e a l " o r "objective" evidence, and t h u s out- s i d e t h e coverage of t h e F i f t h Amendment, " t h e manner i n which such evidence i s obtained must be c o n s i s t e n t with t h e require- ments of due process." S t a t e v. Campbell, 146 Mont. 251, 259, 405 P.2d 978, 983. H e r e , t h e procedure of audio-video taping defend- a n t w a s not " b r u t a l " o r "offensive" conduct s i m i l a r t o t h e f o r c i b l e opening of a defendant's mouth and t h e f o r c i b l e pumping of h i s stomach which "shocked t h e conscience" and v i o l a t e d t h e defend- a n t ' s due process r i g h t s i n Rochin v. C a l i f o r n i a , 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. The audio-video taping of defendant was a l e s s e r personal invasion than t h e forced blood tests upheld by t h e Court i n Schmerber and i n Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L ed 2d 448, 452-53, where t h e Court s t a t e d : " * * * Modern community l i v i n g r e q u i r e s modern s c i e n t i f i c methods of crime d e t e c t i o n lest t h e public go unprotected * * * "As a g a i n s t t h e r i g h t of a n i n d i v i d u a l t h a t h i s person be held i n v i o l a b l e * * * must be s e t t h e i n t e r e s t s of s o c i e t y i n t h e s c i e n t i f i c determination of i n t o x i c a t i o n * * *. And t h e more so s i n c e t h e t e s t likewise may e s t a b l i s h innocence, thus afford- ing p r o t e c t i o n a g a i n s t t h e treachery of judgment based on one o r more of t h e senses." Neither does defendant's Fourth Amendment r i g h t t o be secure from unreasonable searches and s e i z u r e s p r o t e c t him from having h i s words and a c t i o n s audio-video taped i n a p o l i c e sta- t i o n , a f t e r he had been a r r e s t e d . Although t h e Fourth Amendment may p r o t e c t what an indi- v i d u a l seeks t o preserve a s p r i v a t e , even when he is i n a public what place,/a person " * * * knowingly exposes t o t h e p u b l i c , even i n h i s own home o r o f f i c e , is not a s u b j e c t of Fourth Amendment p r o t e c t i o n . " Katz v. United S t a t e s , 389 U.S. 347, 88 S.Ct. 507, 1 9 L ed 2d 576, 582. Defendant i n t h e i n s t a n t c a s e d i d not j u s t i f i a b l y r e l y on h i s privacy a s d i d t h e defendant i n Katz, whose conversations were recorded when he placed phone c a l l s i n a glass- enclosed telephone booth. Here defendant was i n a p o l i c e s t a t i o n where he knew p o l i c e o f f i c e r s and employees were observing h i s words and a c t i o n s . The United S t a t e s Supreme Court has c o n s i s t e n t l y upheld t h e use i n evidence of recorded conversations between defendants and t h e p o l i c e informants whom they mistakenly believed t o be compatriots. I n such c a s e s , defendants' misplaced confidences i n p o l i c e informants are not protected by t h e Fourth Amendment. United S t a t e s v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L ed 2d 453; Hoffa v. United S t a t e s , 385 U.S. 293, 87 S.Ct. 408, 17 L ed 2d 374; Lopez v. United S t a t e s , 373 U.S. 427, 83 S.Ct. 1381, 10 L ed 2d 462. I n t h e i n s t a n t c a s e , defendant d i d not t a l k and walk in the presence of police informants, but in the presence of police officers, while in the police station. Defendant had no legitimate expectation of privacy to be protected by Art. 11, Section 11, 1972 Montana Constitution or by the Fourth Amendment. The judgment of the district court is affirmed. 4 i Chief Justice 3 We concur: .............................. Justices

July 12, 1977

fe28ef8f-a9c0-4c35-8ee8-b2b5d677d4e7

LaFOREST v RONALD LeLAND E K WI

N/A

13284

Montana

Montana Supreme Court

No. 13284 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 JOSEPH E. LAFOREST, Plaintiff and Appellant, RONALD LELAND AND COMPANY and E. K. WILLIAMS COMPANY, Defendant and Respondent. Appeal from: District Court of the Second Judicial District Honorable Arnold H. Olsen, Judge presiding. Counsel of Record: For Appellant: Gregory J. Skakles argued, Anaconda, Montana For Respondent : Greenwood and Petaja, Helena, Montana Nicholas C. Jacques argued, Helena, Montana Submitted: January 11, 1977 ~ecided: JAN 2 0 1977 M r . J u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court. This i s an a c t i o n f o r damages r e s u l t i n g from an alleged f a i l u r e of defendants t o procure worker's compensation coverage f o r t h e operation of p l a i n t i f f ' s s e r v i c e s t a t i o n i n Butte, S i l v e r Bow County, Montana. From an order of t h e d i s t r i c t court, S i l v e r Bow County, t r a n s f e r r i n g venue t o t h e d i s t r i c t c o u r t , L e w i s and Clark County, Montana, p l a i n t i f f appeals. The complaint a l l e g e s t h a t i n February, 1972, defendant Roland LeLand and Company entered i n t o an o r a l c o n t r a c t with p l a i n t i f f t o procure worker's compensation coverage f o r t h e operation of p l a i n t i f f ' s s e r v i c e s t a t i o n i n Butte, S i l v e r Bow County, Montana. The complaint a l l e g e s both breach of c o n t r a c t and negligence by defendant i n f a i l i n g t o procure t h e coverage. P l a i n t i f f was subsequently injured i n an i n d u s t r i a l accident. The complaint seeks damages i n t h e amount of workmen's compensa- t i o n b e n e f i t s t o which p l a i n t i f f would have been e n t i t l e d had coverage been procured. The place of performance w a s not expressed i n t h e o r a l contract. A d i s p u t e e x i s t s concerning whether t h e place of contracting w a s i n Butte, S i l v e r Bow County, o r Helena, L e w i s and Clark County. P l a i n t i f f r e s i d e s and operates h i s s e r v i c e s t a t i o n i n Butte, S i l v e r Bow County. The p r i n c i p a l place of business of defendant Roland LeLand and Company i s i n Helena, L e w i s and Clark County, and its president Roland LeLand r e s i d e s there. W e hold t h a t t h e place of performance of t h e c o n t r a c t c o n t r o l s venue i n t h i s case. Section 93-2904, R.C.M. 1947. Ab- s e n t t h e underlying c o n t r a c t , t h e r e i s no negligence, no claim f o r r e l i e f , and no lawsuit. The gravamen of t h e complaint is f a i l - u r e t o procure t h e coverage as agreed. By necessary implication, t h e coverage was t o be procured by defendant a t i t s place of business in Lewis and Clark County. The place of performance exception applies to contracts where the place of performance is indicated by necessary implication. McGregor v. Svare, 151 Mont. 520, 445 P.2d 571 and cases cited therein. Judgment affirmed. Justice We concuj?: Mr. Justice Daniel J. Shea, deeming himself disqualified, did not participate in this case.

January 20, 1977

66f7e614-641c-4382-b516-22dc02b3b9e0

Ryan v. Ald, Inc.

427 P.2d 53

11196

Montana

Montana Supreme Court

427 P.2d 53 (1967) Clarence A. RYAN, Plaintiff and Respondent, v. ALD, INC., a corporation, Defendant and Appellant. No. 11196. Supreme Court of Montana. Submitted February 6, 1967. Decided April 26, 1967. *54 Weir, Gough, &amp; Booth, and Ward A. Shanahan, Helena, Edwin S. Booth and *55 Ward A. Shanahan (argued), Helena, for appellant. C.W. Leaphart, Jr. (argued), Helena, for respondent. DOYLE, Justice. This is an appeal from a judgment of $3,696.28 against the defendant, ALD, Inc., for actual damages arising out of a contract for the sale of laundry equipment. Respondent, Clarence A. Ryan (hereinafter called plaintiff) entered into a sales agreement with the appellant, ALD, Inc. (hereinafter called defendant) on August 28, 1959, wherein defendant agreed to sell and plaintiff agreed to buy two Westinghouse washing machines and two Westinghouse dryers for the purpose of establishing a "Laundromat." The equipment was delivered in the manufacturer's containers and the plaintiff paid the balance of the full purchase price on receipt from the carrier. Plaintiff undertook to install the equipment himself but was unable to get it functioning properly. There was considerable communication between the plaintiff and defendant concerning the malfunctioning machines including some new parts and instructions. Finally plaintiff attempted to rescind the sale and have his money returned. The rescission was not accepted and plaintiff filed a complaint against the defendant on October 28, 1963, asking for damages. Plaintiff had judgment which the defendant appealed and was granted a reversal and new trial in Ryan v. ALD, Inc., 146 Mont. 299, 406 P.2d 373. Ryan v. ALD, Inc., supra, decided the following: 1. That this was an action for damages for breach of a written contract; 2. That the terms of the contract were clear and therefore parol evidence was not admissible; 3. That punitive damages were not recoverable in this action; and 4. That the trial judge made remarks which were prejudicial to the defendant. This is an appeal from a judgment for the plaintiff resulting from the second trial. During the pre-trial conference that preceded the second trial, the presiding judge announced that the case would be retried on the theory that the sales contract carried with it an implied warranty of fitness for use. Defendant objected to this theory on the grounds that implied warranties were expressly disclaimed by the sales contract and that even in the absence of a disclaimer no warranty could be implied under the facts of this case. At the end of all the evidence presented at the trial the verdict was directed in favor of the plaintiff on the question of liability and the jury was instructed to determine the amount of damages, if any, that were proximately caused by the breach of the sales agreement. The trial judge ruled that the reverse side of the sales agreement would be excluded from the evidence because the terms printed therein were in difficult to read, small, dim, blue type. While responding to questions asked by counsel, the court indicated that it would change this ruling if a foundation was laid by showing that the plaintiff's attention had been directed to the reverse side of the sales agreement and that he understood what was printed there. In ruling that the reverse side of the sales agreement was not admissible, the district court ignored the opinion rendered in the former appeal of this case. Ryan v. ALD, Inc., supra, at 146 Mont. 300, 406 P.2d 374, included the following statement: "* * * The agreement contained, among others, the following provisions: that the seller makes no warranties with respect to the equipment; that ordinary manufacturer's warranties as to repair and replacement parts apply * * *." These were all terms from the reverse side of the sales agreement. In this manner it was impliedly, if not expressly, held that the terms on the reverse side of the sales agreement were part of the contract. This holding became the law of the cast and was binding upon the district judge. O'Brien v. Great Northern R. Co., Mont., 421 P.2d 710. The observations of the trial judge concerning the readability of the contract terms were pertinent, but it is not the *56 law that a person who seeks to enforce the terms of a contract must first show that the person sought to be charged had both read and understood the contract before signing it. The correct rule is exactly the opposite. A party to a contract cannot avoid its terms merely by saying that he has not read or understood the obligations contained therein. Guthrie v. Halloran, 90 Mont. 373, 3 P.2d 406. The exception to this rule is that a party to a contract may as a matter of defense show that he was prevented from ascertaining the contents and meaning of a written contract by means of deceit or fraud. Hjermstad v. Barkuloo, 128 Mont. 88, 270 P.2d 1112. If this issue had been allowed to proceed normally, evidence of an express disclaimer would have shifted the burden of going forward with the evidence to the plaintiff who then might have offered evidence that the disclaimer was ineffective. No issue of fraud or deceit was raised at either trial or by the former appeal. Consequently, the former appeal does not prevent consideration of this issue in any subsequent proceedings by reason of the doctrine of the law of the case. O'Brien v. Great Northern R. Co., supra. The sales agreement does not of itself show that the plaintiff should be excused from knowledge of the terms on the reverse side and therefore it was error to rule that the reverse side should be excluded as a matter of law. The large print at the bottom of the face of the sales agreement, near the place where the plaintiff signed his name, stated the following: "THIS IS AN OFFER TO PURCHASE SUBJECT TO DISTRICT APPROVAL AND CONDITIONS ON THE REVERSE SIDE HEREOF WHICH ARE A PART OF THIS AGREEMENT." In the absence of other evidence, the plain statement just quoted was sufficient to apprise the plaintiff of the terms on the reverse side and to give him the means of ascertaining their contents before signing the agreement. It was also error to direct the verdict on the theory that the defendant had breached an implied warranty of fitness for use. In so holding the trial judge ignored an express disclaimer of implied warranties on the reverse side of the sales agreement and the applicable law of implied warranties. Paragraph five of the terms printed on the reverse side of the sales agreement recited the following: "Seller makes no representations or guaranties, express or implied in respect to any of the equipment covered by this order, except that it will deliver good title to said equipment sold, free from all liens and encumbrances. * * *." We have already held that this and the other terms on the reverse side of the sales agreement should have been placed before the jury. If this disclaimer of implied warranties was in fact a part of the contract between plaintiff and defendant there is no reason why it would not be sufficient to avoid warranties otherwise implied by law. This case arose from a contract made before the Uniform Commercial Code became effective in Montana. Section 74-325, R.C.M. 1947. Therefore, any implied warranty of fitness for use applicable to this case must be founded on the authority of section 74-316, R.C.M. 1947, if at all. Section 74-316 provides: "One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose." Although the trial judge expressly disapproved of it, Harrington v. Montgomery Drug Co., 111 Mont. 564, 111 P.2d 808, is still the law of this state with respect to implied warranties applicable under statute prior to the adoption of the Uniform Commercial Code. The Harrington case, supra, at 111 Mont. 566, 111 P.2d 809, states the rule applicable to this case. "* * * In this state a seller who is not the manufacturer of goods other than provisions for domestic use sold to one who buys for consumption makes no implied warranty of their fitness for the intended use. "Section 7607 (74-310, R.C.M. 1947) provides: `Except as prescribed by this chapter, *57 a mere contract of sale or agreement to sell does not imply a warranty.' Hence before plaintiff may rely upon an implied warranty she must point to a statute giving her that right." In the instant case, as in the Harrington case, the defendant is not the manufacturer and this fact alone prevents any liability from being imposed under section 74-316. No liability can be enforced against the defendant in this case on the theory of a breach of an implied warranty unless it is shown that the attempted disclaimer was not effective and that the warranty is implied by statute. The course this case has followed to date has called our attention to the following statement, and has made it worthwhile repeating here. "To follow the dictates of justice when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever the consequences they may lead is a duty. This applies as well to rules establishing remedies, as to those establishing rights. Whoever undertakes to determine a case solely by his own notions of abstract justice, breaks down the barriers by which the rules of justice are erected into a system, and he thereby annihilates law." Duncan v. Magette, 25 Tex. 245. Finding error in the proceedings, the judgment is reversed and the cause is remanded for a new trial in conformity with this opinion. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICE CASTLES concur. MR. JUSTICE JOHN C. HARRISON, dissenting: I dissent. This is the second time that this case has been decided by a jury and unfortunately the second time the respondent has had to bear the costs of the appeal. Here, due to no fault of either the respondent or his attorney, this cost burden becomes his, due to the trial court's deliberate disregard of this court's previous Opinion. This in my opinion is most unjust. Costs are provided by our statutes and this case is an example of a fair general rule working a hardship in this specific instance. I wish it were possible here to make a different assessment of the costs. MR. JUSTICE ADAIR, dissenting: I dissent to the majority opinion rendered in this cause by Associate Justices Stanley M. Doyle, Wesley Castles and by Chief Justice James T. Harrison, and I concur in the above-quoted dissenting opinion by Associate Justice John Conway Harrison in this cause.

April 26, 1967

1e4b0a08-999f-4c4a-8123-fe0498cb6b1c

Tigh v. College Park Realty Co.

427 P.2d 57

11191

Montana

Montana Supreme Court

427 P.2d 57 (1967) Thomas TIGH, Plaintiff and Respondent, v. COLLEGE PARK REALTY CO., Defendant and Appellant. No. 11191. Supreme Court of Montana. Submitted January 11, 1967. Decided April 26, 1967. *59 Alexander, Kuenning &amp; Hall, John H. Kuenning (argued), Great Falls, for appellant. John C. Hoyt and Richard V. Bottomly (argued), Great Falls, for respondent. DOYLE, Justice. This is an appeal from an order granting a new trial. The action was brought in the district court of Cascade County to recover damages for personal injuries alleged to have resulted when the plaintiff slipped and fell on the defendant's parking lot. There was a unanimous verdict for the defendant and from an order granting a new trial the defendant appeals. During 1957 the respondent, Thomas Tigh (hereinafter called the plaintiff) was involved in a collision between the motorcycle he was driving and an automobile. As a result of this collision the plaintiff suffered severe injuries to the left side of his body including a fractured left leg. About nine and one-half months later the same leg was again fractured while the plaintiff was sitting on the edge of a bed. Recovery was further complicated by an infection in the fractured leg. Part of plaintiff's treatment was under the supervision of Doctor Power who has his office in the College Park Medical Center which is owned and maintained by the appellant, College Park Realty Company (hereinafter called defendant). On one of his visits to Dr. Power's office during 1965, plaintiff slipped and fell on the College Park Medical Center's parking lot and refractured his leg. This action was brought to recover for injuries sustained from the fall on defendant's parking lot. During the two days previous to plaintiff's fall, the City of Great Falls, Montana, experienced unseasonably high temperatures which melted much of the existing snow cover. This thaw was followed by a freeze with the result that the city, including the defendant's parking lot, was coated with a sheet of ice covered by a skiff of new snow. The plaintiff denied knowing of the ice, but observed the snow. Plaintiff, who no longer used crutches and braces, drove his car to the defendant's parking lot by himself. Although his left arm was paralyzed and the motion of his left knee was limited, plaintiff walked unassisted *60 from the place where he parked his car to Dr. Power's office. Plaintiff fell and was injured as he was returning to his car about thirty minutes later. Plaintiff alleged that the defendant was negligent in not warning him of the dangerous condition of the premises and that the defendant was further negligent in not making the premises safe. Defendant denied negligence on the ground that removing the snow and not the ice was the accepted custom and usage of similar parking lots in the community and that he had no duty to warn the plaintiff because the hazard was obvious. The grounds specified for granting a new trial appeared as follows: "It is hereby ordered that plaintiff, Thomas Tigh, be and he is hereby granted a new trial on the grounds and for the reason that there was an insufficiency of evidence to justify the verdict and the jury's decision was against the law; that there was error in the law occurring at the trial and excepted to by the party making application for a new trial; that there was irregularity in the proceedings which prevented the plaintiff from having a fair trial." These are three of the eight general statutory grounds provided in section 93-5603, R.C.M. 1947. The district court did not elaborate on the statutory language. There are several well-established rules governing new trials. The trial court has broad discretion to grant or to refuse to grant new trials and will not be reversed upon appeal except for a manifest abuse of discretion. An order granting a new trial will be upheld if it can be sustained on any ground named therefor. Orders granting new trials will not be set aside as readily as orders denying new trials since the latter ends the litigation while the former restores the parties to their respective positions before the trial. State Highway Commission v. Greenfield, 145 Mont. 164, 399 P.2d 989, and cases cited. See also Johnson v. Whitcomb, 149 Mont. 23, 422 P.2d 642, where the rules summarized in the Greenfield case were recently approved. Under the rules just stated the appellant has the burden of proving that the district court manifestly abused its discretion by granting the new trial. This is a difficult burden because it requires proof of the negative fact that no error was committed which would justify a new trial. However, a prima facie case of manifest abuse of discretion may be made by discrediting the grounds specified for granting the new trial or showing that existing error did not materially affect the substantial rights of the moving party as required by section 93-5603. The arguments advanced for this appeal placed great emphasis on the propriety of admitting portions of a complaint filed by the plaintiff in a prior action. Some additional background is necessary to understand the issues involved. From the beginning of the trial it became apparent that the issue of damages would be drawn into sharp dispute because of the former injuries. The evidence adduced on behalf of the plaintiff was intended to prove that the plaintiff had enjoyed a near total recovery and that therefore most of the existing disability can be attributed to injuries sustained on the defendant's parking lot. In this connection, Mr. Howard Tigh, father of the plaintiff, testified that his son had been leading an active life after the 1957 injury and before the 1965 injury including hunting, fishing and hiking. On cross-examination additional details of the plaintiff's hunting, fishing and hiking activities were supplied. Then, without objection, these questions were asked and these answers were given: "Q. Prior to this time and after the accident of 1957, did anybody tell you that Tom's leg was 75 percent permanently disabled? A. I never knew that to be true. I never even knew that he had that much disability in the leg. In fact, I never knew exactly what his disability was in that leg. He seemed to get around awfully good. And he wanted to go on outings and exercise. "Q. I take it then, Mr. Tigh, that you never represented to anybody that it was 75 *61 percent permanently disabled, if you never knew it? A. I never knew it was 75 percent. I don't know it yet." Then, over objection that the cross-examination exceeded the scope of the direct examination, the court allowed a portion of a complaint filed in connection with the 1957 injury to be entered into evidence. Only that portion of the complaint which recited Thomas Tigh's leg was 75 percent permanently disabled was allowed. This complaint was signed, under oath, by the witness as guardian ad litem for Thomas Tigh who was then a minor under our former rules which required a verification. Plaintiff contends that the admission of the statement contained in the complaint was improper impeachment and one ground for sustaining the order granting a new trial. We think this contention fails when tested against the applicable rules of evidence. Section 93-1901-7, R.C.M. 1947, provides that a witness may be cross-examined as to any facts stated in his direct examination or connected therewith. The direct examination of Howard Tigh raised the question of plaintiff's physical condition by describing him as being active. Cross-examination with respect to the witness's prior statement of the plaintiff's physical condition during the same period of time can hardly be outside the facts testified in such direct examination. Section 93-1901-12, R.C.M. 1947, provides that a witness can be impeached by use of a prior inconsistent statement so long as a proper foundation is laid. The witness's statement that his son's leg was 75 percent permanently disabled is clearly inconsistent with his direct testimony that his son was able to lead an active life prior to the 1965 injury. The witness recognized the source and nature of the complaint and admitted having signed such a sworn document. Impeachment is limited by the rule that it will not be allowed with respect to collateral matter. Bullard v. Smith, 28 Mont. 387, 401, 72 P. 761, 764. This limitation is not invoked here because the extent of plaintiff's physical disability prior to the injury sustained on defendant's parking lot is both relevant and material to the issue of damages. No question of opinion evidence is raised by the admission of the prior inconsistent statement because it was admitted for the purpose of impeachment and not for the purpose of proving the truth of the statement. Even if the portions of the complaint read to the jury were held to be inadmissible no prejudice could have resulted. The evidence objected to is relevant to damages only. Since the jury found no liability on the part of the defendant the question of damages was not reached. Another source of error argued in this appeal was the instruction given on the duty owed by owners or occupiers of land to their invitees. In particular the plaintiff objected to the jury being instructed that there is no duty to warn invitees of obvious dangers. The instruction given is very similar to instruction 120.4 of the Montana Jury Instruction Guide (MJIG) recently approved in Regedahl v. Safeway Stores, Inc., Mont., 425 P.2d 335, and correctly stated the duty owed to the plaintiff. Other instructions refused by the court attempted to establish that the dangerous condition of the parking lot was not obvious as a matter of law and that the defendant had a duty to make the premises safe for the plaintiff. The duty to warn invitees depends upon whether it would be reasonable to expect an ordinary person to observe the danger under the circumstances of the individual case. Regedahl v. Safeway Stores, Inc., supra, Clark v. Worrall, 146 Mont. 374, 406 P.2d 822. Normally the question of the existence of a duty to warn an invitee will be a question for the jury as we think it is in this case. Owners or occupiers of land do not have an absolute duty to make their premises safe for their invitees but need only use *62 ordinary care to keep their premises reasonably safe. Regedahl v. Safeway Stores, Inc., supra, and cases cited. We are also of the opinion that the record submitted in this case does not permit a finding that the defendant was negligent as a matter of law. This issue was properly submitted to the jury. All of the potential errors argued before this court as grounds for a new trial have been considered and are found to be without merit. Only those issues which raised a substantial legal question have been discussed. We are of the opinion that the record actually discloses a trial favorable to the plaintiff and therefore conclude that the district court did abuse its discretion by granting a new trial. The order granting a new trial is reversed. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES ADAIR, CASTLES and JOHN C. HARRISON concur.

April 26, 1967

2a2069bd-907f-441f-853b-976f6dd46798

Rozan v. Rosen

431 P.2d 870

11142

Montana

Montana Supreme Court

431 P.2d 870 (1967) Alice F. ROZAN, Plaintiff and Respondent, v. Eugene D. ROSEN, Roderick L. Dungan, Betty I. Dungan, Jerome Shulkin, Jane Shulkin, Norma R. Rosen et al., Defendants and Appellants. No. 11142. Supreme Court of Montana. Submitted June 19, 1967. Decided September 19, 1967. Raymond Hildebrand, Glendive, Edwin S. Booth, Helena, Cyril Moss, Beverly *871 Hills, Cal., Stanley B. Frosh, Washington, D.C., Jerome Shulkin, Seattle, Wash., for appellants. Kelly &amp; Carr, Miles City, Frank F. Jestrab, Williston, N.D., for respondent. JAMES T. HARRISON, Chief Justice. This is an appeal by certain defendants from a judgment in favor of plaintiff in an action to quiet title brought in the District Court of Fallon County. The plaintiff, respondent herein, obtained an interlocutory divorce decree against defendant Maxwell M. Rozan (hereinafter called Rozan) in California. The decree declared that all the property owned at the time the parties separated was community property and awarded 65 percent of that property to the plaintiff. Rozan appealed that judgment and it was upheld with modifications. Rozan v. Rozan, 49 Cal. 2d 322, 317 P.2d 11 (1957). This action was brought by plaintiff to quiet title to certain mineral interests in Fallon County, Montana, on the theory that the interests had been acquired by Rozan with community property. The plaintiff contended that Rozan supplied money to his nephew, defendant Eugene D. Rosen (hereinafter called Rosen), to purchase the "Miller" mineral interest with intent to defraud her of her community property share. Plaintiff also contended that Rozan transferred the "Bellis" interest to his nephew Rosen for no consideration, to the same end. The district court, sitting without a jury, found for the plaintiff. The appellant contends that the judgment should be reversed for three reasons. First, that the plaintiff's cause of action was barred by the statute of limitations. Second, that plaintiff has not carried her burden of proof. And lastly, that plaintiff should be denied relief on the ground that she does not have clean hands. We cannot agree with appellant's contention that the cause of action is barred by the statute of limitations. The statute of limitations for fraud is two years from the discovery of the facts constituting the fraud. R.C.M. 1947, § 93-2607. It is appellant's position that the facts constituting the fraud were discovered at about the time the plaintiff was renegotiating her fee arrangement with her attorney. That agreement was filed in Fallon County on January 24, 1958. This action was filed on March 11, 1960. The cause of action herein was, however, originally brought on November 24, 1959 as a counterclaim in Civil Suit No. 3646 in Fallon County. The counterclaim was brought within two years of the discovery even accepting appellant's version of the time of the discovery of the facts constituting the fraud. Thus it was not barred by the statute of limitations. The counterclaim was dismissed on motion of the appellants herein on November 20, 1963. Under R.C.M. 1947, § 93-2708 the plaintiff had one year from the dismissal of the counterclaim to bring another action on the dismissed counterclaim. The case at bar was clearly instituted prior to the expiration of the one-year limitation. To bring herself within R.C.M. 1947, § 93-2708, respondent must show that the dismissal was not voluntary on her part. Tietjen v. Heberlein, 54 Mont. 486, 171 P. 928 (1918). The dismissal of the counterclaim was on the motion of the appellants herein and consequently respondent is within the application of the statute. Since the counterclaim was not barred and this action was brought within the time limit of R.C.M. 1947, § 93-2708, it is not barred by the statute of limitations. Wilson v. Norris, 43 Mont. 454, 117 P. 100 (1911); Peterson v. City of Butte, 44 Mont. 129, 120 P. 231 (1911). Appellant further contends that in considering the application of the statute of limitations it should date from the filing of the amended complaint, which was filed February 4, 1965, rather than March 11, 1960. Rule 86, M.R.Civ.P., provided that the Montana Rules of Civil Procedure control in all actions pending at the time they took effect on January 1, 1962, unless the court is of the opinion that they should not so control. *872 (State ex rel. Rozan v. District Court, 147 Mont. 532, 416 P.2d 19 (1966)). The lower court made no finding as is required by Rule 86, thus the question of relation back of the amended complaint is controlled by Rule 15(c), M.R.Civ.P. The controlling question under Rule 15(c), is whether "[T]he claim * * * asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading * * *." Professor Moore describes the character of amendments which will relate back as follows: "* * * Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged * * * will relate back even though the statute of limitations has run in the interim. * * * "The Federal Rules have broadened the meaning of the concept of `cause of action,' shifting the emphasis from a theory of law as to the cause of action, to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. And an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back." (Footnotes omitted.) 3 Moore's Federal Practice 2d. § 15.15(3), p. 1021. In the case at bar it is clear that the allegation of fraud was the basis for the quiet title action. This is admitted by the appellant in his brief where he says: "Since the action to quiet title depends upon the proof in an action to establish the fraud on the part of the appellant, the Complaint must stand or fall on the case for fraud." The amended complaint merely stated the allegations of fraud specifically. Since the quiet title action stood or fell on the facts establishing fraud the amended complaint relates back to the time of filing the quiet title action. Appellant's second specification of error is that the plaintiff did not prove that the mineral interests were acquired with community property, nor that Rozan and Rosen conspired to defraud her. When such a question is presented to this court is will only review the evidence to ascertain whether there is substantial evidence in the record to sustain the findings of the court. Teesdale v. Anschutz Drilling Company, 138 Mont. 427, 357 P.2d 4 (1960), and cases cited therein. The trier of facts is in the best position to observe the demeanor of the witnesses and determine the truth of the testimony. In the case at bar the transcript and exhibits are voluminous. From all this material a reasonable man can find that Rozan and Rosen conspired to defraud plaintiff of her community property share. This court will not sit as a second trier of facts. The record contains substantial evidence to support the findings of the lower court. Appellant's third basis for appeal is that plaintiff has not come into equity with clean hands. The essence of appellant's claim is that the plaintiff made deliberate errors in the proposed findings of fact prepared by her counsel and submitted to the court and in the computation of damages. In addition, that the proposed findings of fact and conclusions of law so prepared by the plaintiff were not served on the appellant. Appellant did, however, move to amend the court's findings of fact and conclusions of law and his motion was granted in part so he was heard thereon. State ex rel. Rozan v. District Court, supra. As to the contended errors in the findings of fact in the computation of damages, there is nothing to show that those items were the result of a deliberate attempt to mislead the court. *873 Section 93-5305, R.C.M. 1947, provides that in cases tried by the court the judgment shall not be reversed on appeal for defects in the findings unless exceptions are made in the district court. No exceptions to the findings complained of here by the appellant were made in the district court and defects cannot be raised for the first time upon appeal. We find that the allegation of lack of clean hands is without substance and relief should not be denied on that ground. The judgment is affirmed. CASTLES, ADAIR and JOHN CONWAY HARRISON, JJ., concur.

September 19, 1967

ab8128e0-f0e0-4c01-8114-0d639622086b

Western Airlines, Inc. v. Michunovich

428 P.2d 3

11210

Montana

Montana Supreme Court

428 P.2d 3 (1967) WESTERN AIRLINES, INC., Plaintiff and Appellant, v. Catherine J. MICHUNOVICH, et al., Defendants and Respondents. No. 11210. Supreme Court of Montana. Decided April 24, 1967. Submitted February 9, 1967. Rehearing denied June 15, 1967 *4 Crowley, Kilbourne, Haughey, Hanson &amp; Gallagher, Billings, Jardine, Stephenson, Blewett &amp; Weaver, John D. Stepenson (argued), Great Falls, for appellant. John L. Adams, Jr., County Atty., Harold F. Hanser (argued), Billings, William A. Douglas (argued), Helena, for respondents. CASTLES Justice. This is an appeal from a judgment rendered against the appellant Western Airlines for certain property taxes levied by respondents. The assessment in question was on flight property used by appellant in Montana in 1964. The appellant is a scheduled interstate airline company. On the assessment date in question, it owned and used three types of aircraft throughout its system: Boeing 720B's, Lockheed Electras and Douglas DC-6B's. The appellant's operations in Montana were limited to DC-6B piston aircraft. Neither the 720B jets nor the Electra prop jets were operated into or over Montana. In 1964, the appellant filed with the Board of Equalization the report required by Section 84-6403, R.C.M. 1947. Upon being advised *5 of a tentative assessment of its flight property at $1,190,000, appellant appeared before the Board to show cause why that figure should be lowered. The Board did not lower the assessment, but instead fixed it at the tentative figure of $1,190,000. It apportioned $371,263 of the assessed value to Yellowstone County, which then levied a tax of $16,688.99 thereon. On November 30, 1964, appellant paid $763.85 of said tax to Yellowstone County. It paid the remaining $15,925.14 under written protest. This action was commenced to recover the $15,925.14 paid under protest. The facts were presented on stipulation to the district court judge, sitting without a jury. The court below gave a judgment in favor of appellants for $5,039.23. In this appeal, appellant seeks to recover the balance under protest. There are two fundamental issues presented. The first concerns the propriety of the formula used by the Board of Equalization to determine the value of flight property under the "unitary" method of taxation. The second issue is whether the depreciated value of aircraft should have been used in this formula rather than some higher figure. The respondent used the "unitary" or "going concern" approach as distinguished from a direct ad valorem assessment. The "unitary" method represents an attempt to realize a fair assessment value on property which is not habitually located in any given state, but which is used extensively in interstate commerce. The underlying philosophy of the "unitary" method is that the property so used forms a part of an organic system and may be assessed in terms of the economic contribution which each component makes to the entire system. This approach has been firmly established in a series of decisions of the Supreme Court of the United States. Fargo v. Hart, 193 U.S. 490, 24 S. Ct. 498, 48 L. Ed. 761; Galveston, Harrisburg &amp; San Antonio Ry. Co. v. State of Texas, 210 U.S. 217, 28 S. Ct. 638, 52 L. Ed. 1031; United States Express Co. v. State of Minnesota, 223 U.S. 335, 32 S. Ct. 211, 56 L. Ed. 459; Union Tank Line Co. v. Wright, 249 U.S. 275, 39 S. Ct. 276, 63 L. Ed. 602. A good statement of the purpose and operation of the "unitary" method is found in Pullman Co. v. Richardson, 261 U.S. 330, 338, 43 S. Ct. 366, 368, 67 L. Ed. 682. "And, if the property be part of a system and have an augmented value by reason of a connected operation of the whole, it may be taxed according to its value as part of the system, although the other parts be outside the state; in other words, the tax may be made to cover the enhanced value which comes to the property in the state through its organic relation to the system." Thus the "unitary" method determines not only the apportionate share of the entire enterprise which may be taxed by each state but also determines the "enhanced value" attributable to the equipment used by virtue of its being a component part of the system. The "unitary" method assumes that the value of the entire system, as a going concern, is somewhat greater than the total fair market value of its equipment. A critical issue in any form of taxation of tools used in interstate commerce is whether constitutional prohibitions on undue interference with interstate commerce have been violated. Western Airlines contend that they have. In Pullman v. Richardson, supra, 261 U.S. at page 338, 43 S.Ct. at page 368 the Court said: "In taxing property so situated and used, a state may select and employ any appropriate means of reaching its actual or full value as part of a going concern such as treating the gross receipts from its use in both intrastate and interstate commerce as an index of measure of its value and if the means do not involve any discrimination against interstate commerce and the tax amounts to no more than what would be legitimate as an ordinary tax upon the property, valued with reference to its use, *6 the tax is not open to attack as restraining or burdening such commerce." Let us examine the procedure used by the respondent Board. Section 84-6402, R.C.M. 1947, provides for the taxation of flight property used by scheduled airlines in Montana. Section 84-6404, R.C.M. 1947, provides for the manner in which the value of flight property may be determined. It states: "The board shall determine the full and true valuation of all flight property operated or used by every scheduled airline company in air commerce in this state. In determining the valuation apportioned to this state of such flight property, the board may consider the proportion of total tonnage in the state, total time in equated plane hours, number of revenue ton miles and number of arrivals and departures as required to be reported under section 84-6403." The Board of Equalization examined the appellant's entire operation to determine what proportion of the four factors enumerated in Section 84-6404 could be attributed to appellant's business conducted in Montana. An average percentage of 3.3134% was arrived at in this manner which was then applied to the sum of Western Airlines' total stock and debt for all aircraft ready for flight and Western's total net earning capitalized at 6%. The resulting figure of $1,972,396.00 formed the basis for the assessment which is here in issue. The appellant does not attack the use of the "unitary" method as such, but insists that it be applied only to that portion of their business arising directly from the use of DC-6B aircraft. The position of Western Airlines is that the result of applying the "unitary" technique to their whole operation is to tax those aircraft Electras and 720B's which were never in this state. It is clear from the record that the Board of Equalization never attempted to directly tax such aircraft. Chapter 64 of Title 84, R.C.M. 1947, provides for the manner in which "flight property" used in Montana is to be assessed and taxed. There can be little doubt but that the Montana Legislature intended to employ a type of "unitary" taxation when the chapter is read as a whole. But we feel that the most significant problem which remains is whether the use of DC-6B aircraft in this state was sufficiently related to the balance of appellant's business to include in the assessment formula factors attributable to the use of other types of aircraft. For the sake of brevity, we shall refer to such factors as "jet values." The respondent stipulated to statistics introduced by appellant showing what percentage of passengers arriving in or departing from Montana on DC-6B's transferred to other types of planes. The maximum percent of such transfer passengers is agreed to be 0.76%, or 0.67% in terms of passenger revenue miles. These figures are stated as theoretical maxims, with the actual percentage being closer to 0.50%. To the Court, these figures demonstrate a total lack of significant "organic unity" between the DC-6B operation and the rest of appellant's system. It is the concept of "organic unity" which permits the application of a "unitary" assessment and which at the same time limits the scope of this form of taxation. Even though this general technique may be permitted under Montana law and we have concluded that it is certain constitutional requirements must be satisfied. Otherwise the "unitary" method may become an octopus which extends the taxing power of the state beyond the legal limit. Although Western Airlines offers basically the same type of service throughout its system and is a single going concern, it is the opinion of the Court that the concept of "organic unity" must include more than a mere managerial overlay. The stipulated facts clearly indicate that the DC-6B system was an independent line in that it bore no substantial relationship to the rest of appellant's system apart from carrying the same name, etc. We therefore believe that here it would be patently unjust *7 to permit a "unitary" formula to consider "jet values." Since the use of the "unitary" method is intended to prevent excessive taxation, the taxing agency should bear a certain burden of showing the propriety of their action. It is true as a general rule that the taxpayer must overcome the presumption in favor of the correctness of the assessment. Statistics presented by appellant and stipulated to by the respondents at least indicate prima facie a lack of substantial relationship. The Board of Equalization, under such circumstances, should not be permitted to rely almost entirely upon legal presumptions which favor them. The ultimate issue is one of fact, not legal theory, and we feel that evidence presented by appellant is conclusive of the matter. Our conclusion here is predicated upon finding a separate system operated with DC-6B aircraft. We might add parenthetically that the type of aircraft used is not the significant factor to be considered. In theory, all three types of planes used by appellant could have been employed in Montana in the same so-called "feeder line," and the same result would follow in the absence of a substantial relationship to other systems, assuming that these planes were used only within the "feeder line." The problem before us is simplified somewhat by the fact that only DC-6B's were used in this state, and the facts stipulated to as hereinbefore referred to demonstrated an "independent" rather than a "feeder" line. It is not necessary for us to determine at this time what degree of inter-relationship must exist to extend the scope of the "unitary" method. We feel that less than one percent is clearly inadequate. The formula used by the District Court in rendering its judgment eliminated "jet values" from the stock and debt portion of the equation but not from the capitalized earning index. We cannot find any logical justification for this approach; if "jet values" are properly to be considered, they should appear in both factors. If they are not to be considered as we hold in this case "jet values" should be eliminated from both the stock and debt figure and the capitalized earnings portion. We now turn to consider whether the depreciated value of the DC-6B's should have been used by the respondent in the "unitary" method formula rather than some higher figure. Clearly the use of a depreciated value would in no manner approximate the value of the aircraft to the appellant. The taxation policy contemplated by the "unitary" method is quite different from that permitting the use of depreciated values in other taxation situations. Appellant does not, and indeed cannot, argue that the depreciated value of the aircraft represents their actual worth. The Board of Equalization assessed the aircraft at 98.398% of their original cost, yielding a figure of $1,190,000.00. The depreciated figure sought by appellant would lower the assessment to $54,460.00. The highest price obtained for a DC-6B by appellant in the open market was $335,000.00. It is important to note that the "unitary" method tends to assess property at its value to the owner thereof. This figure might be more than the fair market value of the property. In Southern Ry. Co. v. Commonwealth of Kentucky, 274 U.S. 76, 81, 82, 47 S. Ct. 542, 71 L. Ed. 934, the Court said: "The value of the physical elements of a railroad whether that value be deemed actual cost, cost of reproducing new, cost of reproduction, less depreciation or some other figure is not the sole measure of or guide to its value in operation." While we are reluctant to approve the 98% plus figure used by the respondent, it is no less tenable than the depreciated figure sought by appellants. Since no intermediate amount is being sought by either party, we are constrained to recognize, in this instance, certain prerogatives enjoyed by the Board of Equalization. The amount of the resulting tax does not appear to us to be unreasonable or burdensome. *8 The parties have thoughtfully stipulated to alternative results which they agree should follow the conclusions of law established by this court. We have determined that "jet values" may not be considered, but that the 98% plus evaluation of the DC-6B's may be permitted to stand. The assessment of appellant's flight property should accordingly be reduced to $671,377. Of this amount, $209,469.62 should be apportioned to Yellowstone County, resulting in a tax of $9,416.08. Appellant is therefore entitled to a judgment for $7,272.91. The case is remanded with instructions to enter judgment for appellants for $7,272.91. JAMES T. HARRISON C.J., and DOYLE, ADAIR and JOHN C. HARRISON JJ., concur.

April 24, 1967

e6a129d9-d883-4a10-9125-34d6a91cc079

Stapp v. Nickels

150 Mont. 220, 434 P.2d 141

11156

Montana

Montana Supreme Court

434 P.2d 141 (1967) 150 Mont. 220 Kennon STAPP, Plaintiff and Appellant, v. Jack W. NICKELS and Sharol Nickels, Defendants and Respondents. No. 11156. Supreme Court of Montana. November 7, 1967. Rehearing denied December 15, 1967. *142 Robert Hurly (argued), Glasgow, for appellant. Paul E. Hoffmann, Glasgow, Alexander, Kuenning &amp; Hall, John Hall (argued), Great Falls, for respondents. CASTLES, Justice This is an appeal from a judgment entered upon findings of fact and conclusions of law. The judgment was simply that the plaintiff take nothing by this action. Plaintiff brought an action to enjoin the defendants from interference with plaintiff's use of a road. The road had been cabled and locked by defendants on their own land; but the contention of plaintiff was that it was a public road. Plaintiff leases 1,000 acres from the United States government. The land is bounded on the north and east by the Missouri River, on the west by lands of the defendants, on the south by federal land leased and controlled by plaintiff. This land on the south is somewhat steep "bad-land" terrain. The north and east are essentially blocked by the river. The only roadway giving access to plaintiff's leased farm land was a road described in the evidence as #1A. Two other roads, described as #1 and #2 lead from existing county roads to #1A. Road #1A crosses lands acquired by defendants from McCone County in the year 1940. Plaintiff farmed the Government leased lands raising hay and grain crops. In the year 1965 defendants forbade the use of road #1-A to plaintiff and in July of that year erected a cable and padlock across the roadway. Plaintiff obtained a temporary restraining order keeping the road open. Subsequently a trial of the issues was had with the judgment for the defendants. Plaintiff had sought a permanent injunction against defendants, damages, and exemplary damages as and for oppression and malice. The trial court made findings of fact. The essential finding to focus on the main issue presented on appeal is as follows: "That plaintiff has failed to establish his right of use in the roadways designated herein as #1, 1-A and 2." It follows that if plaintiff failed to establish his right to the use of road #1A, that defendants on their own land could not be restrained from locking the cable across the road; and therefore no damages would follow. Thus, the main issue here is whether the district court erred in finding that the plaintiff had failed to establish a public use in Road #1A. Much is said in both briefs about Roadways #1 and 2; but since their use would not avail to the plaintiff the access he seeks, no extended discussion need be had. The interference alleged against defendants was as to the use of Road #1A and any discussion of Roadways #1 and 2 is somewhat academic. We have considerable difficulty in attempting an analysis of plaintiff's various positions. Several factors contribute. The district court's findings may have gone further than necessary since they included findings as to Roads #1 and 2 whereas road #1A as discussed above is all that was necessary to the result. However, even more important, no exception to the findings of fact were made. Under the authority *143 of Olsen v. United Benefit Life Ins. Co., Mont. 432 P.2d 381, which case relied on Rozan v. Rosen, 150 Mont. 431 P.2d 870, the failure to except to the findings is fatal. Apparently counsel, not only in this case but in others, are seriously misinterpreting Rule 46, M.R.Civ.P. Rule 46 merely states that "formal" exceptions are not necessary, but it goes on to note that if the party "makes known" the action he desires, etc., it is sufficient. Note that this language is in connection with the trial. R.C.M. 1947, § 93-5305, was not repealed. That section provides that in cases tried by the court the judgment shall not be reversed on appeal for defects in the findings unless exceptions are made in the district court. Perhaps the confusion is in the word "exceptions" as used in Rule 46 and in section 93-5305. But whatever the reason for the confusion, we emphasize here that section 93-5305 is still the law. The effect is that counsel must point out his exceptions to the findings so that the trial court may have an opportunity to correct them. The failure to do so results in the findings becoming final and the judgment will not be reversed. Now then, section 93-5502 was repealed by the adoption of the Civil Rules, but its import did not go to section 93-5305 as noted above. This effect is noted in the annotation to section 93-5502 and in the Table C, Statutes superseded, of M.R.Civ.P. Even though the failure to except to the findings here makes them final, nonetheless we shall discuss the issues presented. Roadways Nos. 1 and 2 lead from public ways and at an intersection become a single way, that of #1A. The trial court found that at the time defendants purchased section 8 across which roadway #1A passed, in 1940, there were no maintained access roads to serve the land of the plaintiffs, "* * * although there was evidence of many trails which over the years had served the area in the past, but such trails had fallen into disuse for lack of construction, maintenance and repair, and were impassable by ordinary motor vehicles." The trial court also found as a fact that in the year 1952 defendants constructed roadway #1A, equipping it with culverts and gates, "* * * at the sole expense of defendants; that said roadway was constructed along a course which in some stretches adopted ancient trails and used by defendants' predecessors; that throughout the years said roadways designated herein as #1 and 1A have not followed a definite and fixed course, but have been located and relocated from time to time by prior users and by defendants in their effort to maintain the roadway in such a manner as to reduce erosion, cost of maintenance and repair, and to suit their own convenience." The trial court also specifically found that use of road No. 1A had previously been permissive, and that no public use had been established either by use, dominion, or maintenance. What we have referred to hereinbefore as the single issue to be considered, that of the status of road No. 1A, is attacked in several different ways by the plaintiff, appellant here. The plaintiff lists the grounds as follows: Of these alleged grounds, we have heretofore indicated that (6) above is not in issue as, in any event, if roadway #1A is not public, plaintiff would not have access. The status of roads # 1 and 2 are of no consequence, *144 and we are neither approving nor disapproving the trial court's findings as to them. The point is that the judgment appealed from simply denies relief to the plaintiff and does not settle any property rights. As to ground (7) above, both parties make much of an issue as to whether plaintiff had access to the government lease through his own controlled lands. This issue might have had a bearing on the damage issue but has nothing to do with the legal status of road #1A. We will therefore rearrange and consolidate the alleged grounds of error for discussion purposes as follows: The plaintiff asserts that defendant Nickels admitted on the stand that plaintiff "had a right to use road #1A." A very short excerpt of testimony out of context does indicate that result; but considered with the entire context it is clear that the alleged admission was no admission at all. We could develop this further, but it would serve no useful purpose. Suffice it to say that defendant Nickels continued to assert that if plaintiff would have done his part in building and maintaining the road, he would have been allowed to continue to use it. The various Federal provisions alleged as grounds for error can be, for simplicity of understanding, stated as follows: Plaintiff is a lessee of Federal land; defendants are lessees or permittees of Federal land. Because the Federal leases or permits and/or regulations provide in substance that obstruction of entry on Federal range is prohibited, plaintiff reasons that defendants cannot restrict the use of their own private land. Just the statement of the issue in these simple terms shows the logic untenable insofar as it applies to Road # 1A. It lies on defendants' own land. As to issue #3 above, defendants purchased the land from McCone County. The deeds, reflected in plaintiffs' exhibit 7, stated: "Reserving to McCone County, the right of way for all roads now located upon, or hereafter established on or over the above premises." It follows, of course, that before the reservation is effective, there must have been a road to reserve. We shall not concern ourselves with whether the reservation was definite and certain. Neither do we need discuss whether roads "hereafter established" could be affected. If such a reservation were interpreted to mean that literally, we doubt whether it would be constitutional. The facts as found, and we find borne out by the record, is that no public road as such was proven to have existed. It is true that a 1908 U.S. Geological Survey map shows a trail or even a road in the general area. It is likewise true that subsequent aerial photos show some sort of trails or roads through the same terrain if our photo interpretation means anything. But the testimony contained on the subject bears out the findings hereinbefore quoted in part that the roadways have not followed a definite and fixed course, have been relocated from time to time, have never been publicly maintained, have never been generally used by the public adversely to the owner nor in any way has a public road by prescriptive right been established. For a discussion of the law on establishment of a public roadway by prescription see our discussion in Kostbade v. Metier, 150 Mont. 432 P.2d 382. For the foregoing reasons, the judgment is affirmed. JAMES T. HARRISON, C. J., and HASWELL, ADAIR and JOHN CONWAY HARRISON concur.

November 7, 1967

cb21e5fe-0900-40bc-a230-632dbb89ce38

Selway v. Burns

429 P.2d 640

11260

Montana

Montana Supreme Court

429 P.2d 640 (1967) James E. SELWAY, as Administrator of the Estate of Mary E. Burles, Deceased, Plaintiff and Appellant, v. Richard F. BURNS, as Executor of the last will and Testament of E.L. Burles, sometimes Known as Edward L. Burles, Deceased, Defendant. Carrie May Suthard, Movant to vacate and set aside Judgment, Respondent. No. 11260. Supreme Court of Montana. Submitted May 11, 1967. Decided July 5, 1967. As Amended on Denial of Rehearing July 24, 1967. *641 Meloy &amp; Kline, Helena, John R. Kline (argued), Helena, Weir, Gough &amp; Booth, and Cordell Johnson, of counsel, Helena, Edwin S. Booth (argued), Helena, W.G. Gilbert, Jr. (argued), Dillon, for appellant. John H. Jardine (argued), Whitehall, Frank M. Davis (argued), Dillon, for respondent. DOYLE, Justice. This is an appeal from an order of the district court of Beaverhead County setting aside a judgment on the ground that it was gained by fraud. *642 The judgment vacated resulted from a suit brought against Richard F. Burns in his capacity as executor of the E.L. Burles' estate. The Honorable Philip C. Duncan, Judge of the 5th Judicial District, presided over both the probate of the E.L. Burles' estate and the civil action brought against it. After motions were made to remove Richard F. Burns as executor on the ground of incompetence and to vacate the judgment against the estate on the ground that it was gained by fraud, Judge Duncan disqualified himself and called in the Honorable W.W. Lessley, Judge of the 18th Judicial District. Judge Duncan testified at the hearing on the motion to vacate before Judge Lessley who made the following findings of fact: "8. That there is evidence which leads the Court to find that the Plaintiff and Defendant had a relationship which resulted in concealing the existence of this action from the principal party interested, Carrie May Suthard; "9. * * * and immediately upon the discovery of the existence of said judgment, she consulted counsel, who filed the motion now before the Court; * * * "11. That the judgment herein made would not have been made if the said Richard F. Burns had not represented to the Honorable Philip C. Duncan and opposing counsel that Carrie May Suthard had consented thereto; that said representation so made to Judge Philip C. Duncan was false, and did deceive and mislead the Court * * *." An Order was entered vacating the judgment and providing the defendant estate an additional 20 days to answer. From this order both plaintiff and defendant appeal. It should be noted however, that Richard F. Burns has been removed as executor and that the administrator of the estate (with will annexed) appointed in his place, has made an appearance in this action. E.L. Burles died May 13, 1963, survived by his wife, Mary E. Burles. A will was admitted to probate in the estate of E.L. Burles which devised all of his property to his wife for life with the remainder over to his daughter, Carrie May Suthard (movant and respondent hereinafter called Suthard). The will also nominated Richard F. Burns (defendant and appellant hereinafter called Burns) as executor. Burns, an attorney admitted to practice in Montana, subsequently qualified and was appointed executor of the E.L. Burles' estate. Mary E. Burles died intestate May 28, 1963, survived by James E. Selway (plaintiff and appellant hereinafter called Selway) her sole living heir who was appointed administrator of the estate. Mr. Selway, son of Mary E. Burles by a former marriage, and Mrs. Suthard, daughter of E.L. Burles by a former marriage, are related as step-brother and step-sister. Selway filed an action against the estate of E.L. Burles in his capacity as administrator of the estate of Mary E. Burles claiming that all of the property included in the husband's estate was in fact the property of the wife's (his mother's) estate. The theory expressed in the complaint was that all such property had been purchased with funds taken from a bank account held in joint tenancy by E.L. and Mary Burles and that the ownership of the property purchased retained the character of the bank account. Burns, in his capacity as executor, was not served with summons in the action against the E.L. Burles' estate but he nevertheless filed a motion to dismiss for failure to state a claim. A minute entry shows that the motion was denied and the defendant was granted an additional twenty days to answer the complaint. No answer was filed and the matter was disposed of by acceptance of defendant's offer of judgment under Rule 68, M.R.Civ.P. Selway and Burns claim that this judgment divided the property originally included in the E.L. Burles' estate about equally between Mrs. Suthard and Selway, but this was seriously questioned by Mrs. Suthard during argument on this appeal. Mrs. Suthard testified that during the entire period of the probate of her father's *643 estate she was never contacted by Burns and that she received all of her information concerning the probate proceedings from Selway who contacted her from time to time. It was Selway who first notified her of the death of her father, at her home in Hialeah, Florida. The funeral of E.L. Burles provided the only occasion for a conversation in person between Mrs. Suthard and Selway prior to her discovery of the judgment against the estate. On this occasion Mrs. Suthard stated her belief that there would be very little property in the estate and offered to help pay the funeral expenses. Selway replied that he would be the executor and there would be enough to pay all expenses and take care of his mother, the then surviving widow. After the funeral Mrs. Suthard returned to her home in Florida where she remained until after entry of the judgment against her father's estate. While in Florida Mrs. Suthard had several communications with Selway by letter and telephone. During 1964 Selway informed Mrs. Suthard that Burns had been appointed executor. During 1965 he further revealed to Mrs. Suthard that she would realize about $40,000 from the estate. When Mrs. Suthard asked if that much property would require her presence in Dillon Selway discouraged her from making such an expensive trip by saying that it was unnecessary and that he would look after her interests. Selway did not take advantage of his several communications with Mrs. Suthard to inform her that he had brought suit against her father's estate to recover all of the included property. Sometime in August of 1965 Selway informed Mrs. Suthard that he had forwarded a draft in the amount of $24,150.79. After the money was deposited Mrs. Suthard was faced with the problem of proving to tax officials, that the money resulted from inheritance rather than from successful wagering at Florida race tracks. When she could not get satisfactory proof from Selway she used her vacation to travel to Dillon during November of 1965 for the purpose of obtaining the necessary papers in person. On or about December 23, 1965, Mrs. Suthard discovered that there was a judgment entered against her father's estate. She immediately engaged counsel who filed the motion giving rise to this appeal. The testimony of Selway and Burns concerning their failure to inform Mrs. Suthard of the suit against her father's estate borders on the incredible by any known standard. Selway explained that he acted properly because Burns was the only person who had a duty to notify Mrs. Suthard. Burns explained that he indeed desired to notify Mrs. Suthard but he was unable to do so because he only know that she lived in Hialeah, Florida, and Selway had refused to give him the full address although he had requested it many times. Judge Duncan testified at the hearing on the motion to vacate. His testimony revealed a serious irregularity which occurred during the hearing on the defendant's offer of judgment over which he presided. The material portion of his testimony reads as follows: "Q. [By Mr. Jardine] Can you recall any of the circumstances of the signing of that order? A. [Judge Duncan] Well, yes, I can, not too specific, but I can recall some parts of it, I think. "Q. Do you know whether or not the attorneys listed therein, Mr. Gilbert and Mr. Burns, appeared before you that day? A. Yes. "Q. And did they have a stipulation in connection with that lawsuit they presented to you? A. Yes, they did. "Q. Do you recall whether or not you asked Mr. Burns whether he had obtained permission of his client to compromise this? A. Yes, I'm sure I did. "Q. And do you recall what his answer was? A. Well I think I asked him whether he had secured consent of well, it would be the heir, or beneficiary of this estate. *644 "Q. Mrs. Suthard? A. Mrs. I'm not sure of her name, but I knew that she was interested in this estate and I asked Mr. Burns if he had secured her consent or that she was agreeable to such stipulation. "Q. Do you know what his answer was? A. He told me that he had." At the hearing on the motion to vacate, Burns explained that he was able to make this response to Judge Duncan because his opponent, Mr. Selway, had told him of her assent, but not her address. Judge Duncan was not informed of the source of this information at the time the judgment was granted. The basic contentions of the two appellants are that Mrs. Suthard had no standing to make the motion to vacate under Rule 60(b), M.R.Civ.P., because she was never joined as a proper party and she was not required to be joined as a necessary party, see Rule 19, M.R.Civ.P.; and, that even if she had standing there is no evidence of fraud. Respondent has argued that Mrs. Suthard is an indispensable party to this action and that the district courts have discretionary power to set aside their own judgments upon a showing that it was gained by fraud. Appellant's contention that Mrs. Suthard's standing before the court depends upon Rule 60(b) and the joinder requirements of Rule 19 is too narrow. It is not necessary for the purposes of this appeal to construe Rule 60(b) to determine standing, because it has long been the rule in Montana that a court of equity has inherent power, independent of statute, to grant relief from judgments gained by fraud. Bullard v. Zimmerman, 88 Mont. 271, 292 P. 730. The Bullard case, supra, has since been followed many times by this court. Most recently, in Cure v. Southwick, 137 Mont. 1, 349 P.2d 575, this court added that the relief may be granted either on motion in the original action or in a separate equity suit. Rule 60(b) expressly preserved this inherent power in its last sentence which provides: "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not personally notified as may be provided by law, or to set aside a judgment for fraud upon the court." Our federal courts also recognize and use the historic equity power to set aside judgments gained by fraud. Hazel-Atlas Glass Co. v. Hartford Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250. The only limitation that has been placed upon the exercise of this power is that the investigating court must observe the usual safeguards of the adversary process by granting notice to affected persons and by conducting a fair hearing on the existence of the fraud. Universal Oil Co. v. Root Refining Co., 328 U.S. 575, 66 S. Ct. 1176, 90 L. Ed. 1447. The fraud that will move a court of equity to exercise its inherent power to vacate judgments has been described as that which prevents the unsuccessful party from having a trial or presenting its case fully. Clark v. Clark, 64 Mont. 386, 210 P. 93; Hoppin v. Long, 74 Mont. 558, 241 P. 636. It is always the kind of fraud that goes to the very integrity of the judicial system because the court is mislead and made one of the victims of the fraud. Hazel-Atlas Glass Co. v. Hartford Co., supra. Cases decided by this court show that the prohibited result may be achieved either by affirmatively misrepresenting facts (State ex rel. Sparrenberger v. District Court, 66 Mont. 496, 214 P. 85, 33 A.L.R. 464) or by concealment of facts by a person who was under a legal duty to make a full disclosure to the court (See the discussion of the Sohler case, Sohler v. Sohler, 135 Cal. 323, 67 P. 282, in Hoppin v. Long, supra, at 74 Mont. 579-81, 241 P. 636). The record of this case is regrettably more than sufficient to support the district court's finding that the judgment against the E.L. Burles' estate was gained by means of a fraud on the court. Selway and Burns compromised a claim made against the estate. Said compromise *645 was made under circumstances which kept the court and the only person beneficially interested in the E.L. Burles' estate ignorant of several important facts. The amazing if not shocking details have been fully set out herein and do not need to be repeated. If it were conceded that Burns in fact believed that Mrs. Suthard had been consulted and had consented to the stipulated judgment he still failed in his duty as an attorney to deal candidly with the court. Taking the word of an opponent on such an important question, and expressing the same as a fact within his own knowledge, is so far removed from candor as to border on a deliberate falsehood. Under the circumstances Burns had a clear duty to explain the source of his information or simply state that he did not know. If the judge had been apprised of the conduct of the parties he would have had ample reason to doubt that he was presiding over an adversary proceeding. The record overwhelms the reader with the suggestion that the judge was mislead and would have required a different procedure before granting judgment if he had not been subjected to misrepresentation and concealment of important facts. It was also argued that Mrs. Suthard's motion to vacate was not timely. If this argument is based on the requirements of Rule 60(b) it cannot be accepted because the power invoked by the court in this matter does not depend on statute. Cure v. Southwick, supra; Gillen v. Gillen, 117 Mont. 496, 159 P.2d 511. Any time limitations that may be involved in this case require that a balance be struck between the public interest in putting an end to litigation at some point and the public interest in keeping its judicial system free of corruption. For this reason the timeliness of the motion to vacate must ultimately depend upon equitable principles and placed within the sound discretion of the court. In the instant case the judgment was filed November 9, 1964. Mrs. Suthard came to Montana during November of 1965. She discovered the existence of the judgment against her father's estate on or about December 3, 1965. She immediately engaged an attorney who filed the motion to vacate. Under these facts it cannot be said that she failed to act in a timely manner. The arguments made on both sides of this appeal require some additional discussion of matters which are not involved in this case. It is the conduct of the parties and not the procedure followed which requires that the judgment be vacated. Section 91-3202, R.C.M. 1947, authorizes both parties to sue and be sued in their own names without joining persons interested in the respective estates. Since the parties were properly before the court they were entitled to proceed to judgment under Rule 68, M.R.Civ.P., if fraud had not been used as the means of securing the court's approval. The findings of fact and conclusions of law also rely upon the theory that the approval of the probate court was necessary before any property could be transferred from the E.L. Burles' estate to the Mary E. Burles' estate. This theory fails to recognize that the title to the property was drawn into question by the complaint. Therefore, if the plaintiff estate prevailed it would do so because of its own good title and no transfer from the defendant estate would be involved. No consideration has been given herein to perjured testimony. This court has held that perjury is not grounds for a collateral attack on a judgment. Friedrichsen v. Cobb, 84 Mont. 238, 275 P. 267. The instant case rests solely on the narrow ground that the judgment was gained by means of a fraud on the court. *646 The order of the district court vacating the judgment and providing the defendant estate additional time to enter an appearance is affirmed with the instruction that the district court require either or both parties to make such restitution or give such security as will restore the parties to as good a position as they occupied at the time the judgment was rendered. The finding of facts and conclusions of law made by the district court are hereby amended to conform with this opinion. It is so ordered. JAMES T. HARRISON, C. J., and ADAIR, CASTLES and JOHN CONWAY HARRISON concur.

July 24, 1967

96e1eba2-cabe-48d0-b365-495e59f155a4

Lenz v. Mehrens

427 P.2d 297

11223

Montana

Montana Supreme Court

427 P.2d 297 (1967) Pearl M. LENZ, Plaintiff and Respondent, v. William M. MEHRENS and Marie C. Mehrens, Defendants and Appellants. No. 11223. Supreme Court of Montana. Submitted April 13, 1967. Decided May 4, 1967. Rehearing denied May 25, 1967. McKeon &amp; Brolin, John L. McKeon (argued), Anaconda, for appellants. Doepker &amp; Hennessey, Maurice F. Hennessey (argued), Butte, for respondent. JOHN C. HARRISON, Justice. This is an appeal by defendants from a judgment entered in favor of the plaintiff. The plaintiff-respondent is an aunt of Marie Mehrens, and will be referred to as the respondent. The Mehrens, husband and wife, will be referred to as appellants. The injury suffered by the respondent arose as a result of a visit by her to the home of the defendants wherein she stepped backward and fell down a basement stairs. The respondent was seriously injured and there was no question raised with respect to her injuries, rather the question concerns what duties were owed respondent who was a social guest. The respondent, a resident of Seattle, was visiting her relatives in Butte, Montana, and during the evening of January 27, 1966, made a visit to the home of the defendants accompanied by Mr. and Mrs. Dave Walsh, the parents of Mrs. Mehrens. Several days prior to this date Mrs. Mehrens had received a call from her mother, the respondent's sister, telling her that the respondent was in town and would like to pay *298 her a visit. While there is some question as to the day and time of the visit it was agreed by both parties that the defendants anticipated the visit and looked forward to it. On the evening in question Mr. Mehrens, not knowing exactly when respondent was coming to visit, left the home to take one of the children skating, leaving his wife and three other children at home. Shortly thereafter Mrs. Mehrens heard a car drive up alongside the house and when she looked out she saw that it was her father's car and she saw her mother and the respondent in the car. Being quite feminine her immediate reaction was to go immediately to either the bedroom or bathroom to comb her hair. Her father, mother and the respondent in the meantime had gotten out of the car and were coming into the house via the back porch and back door. There was a light on, lighting up this rear entrance at the time respondent entered the rear door. The home was constructed in several stages by the defendants with the help of Mr. Walsh, the father of Mrs. Mehrens. For several years the defendants lived in what is now the basement, and the back door, above-mentioned, was the only door of the home. To enter the house it was necessary to climb four concrete stairs. The door opened outward to the right and just above and to the left of the door was the outside light. When the defendants finished their home above the basement they kept the entrance as it was and in order to get into the kitchen it was necessary to turn left and step up one step. On the night in question when the respondent, and Mr. and Mrs. Walsh reached the rear porch, Mr. Walsh testified that the following took place as they approached the defendants' home: "A. There was no light on in the kitchen. "Q. Did all three of you come up the stairs together? A. Pearl and my wife went ahead of me. "Q. You were behind? A. I was behind. "Q. Did you notice how Pearl [respondent] and your wife went into the house? A. Well, the wife opened the door and she said, `Go on in.' Pearl went in, Pearl got in the entryway, she looked around, the wife said, `Turn in there.' Pearl said, `You go first,' and at that she kind of stepped back out of the way and the wife went in the kitchen, and that's when Pearl fell and the wife went running, screaming into the house and I went down in the basement and picked Pearl up." With these basic facts, at the end of the respondent's case the appellants moved and were denied, a directed verdict. The appellants make three specifications of error: (1) The court had no jurisdiction to try the cause without first having held a pre-trial conference and having entered a pre-trial order. (2) The presiding judge had no jurisdiction to try the cause as plaintiff's disqualification of the trial judge was untimely. (3) The court erred in denying defendants' motion for a directed verdict. With appellants' specification of error (1) we find no merit. Rule 16, M.R.Civ.P., relating to pre-trial procedures is a permissive not a mandatory rule. The adoption of the Rules of Civil Procedure in 1962 by this court was to promote justice and the above rule was adopted, and we have encouraged its widest use by the trial courts of this state always recognizing that it is optional and leaving to the trial court's discretion whether to utilize the rule and to what extent. The appellants' second specification of error is not well-taken. In view of the facts set forth in the briefs concerning the disqualification of Judge Allen, who was to try the case, and the subsequent calling in of Judge Dignan, by agreement of both counsel, we find no violation of the provisions of our law, section 93-901, R.C.M. 1947. In considering the third specification of error we cannot presume that the trial court committed error; the appellant *299 must assume the burden of showing that error was in fact committed. Bouma v. Bynum Irr. Dist., 139 Mont. 360, 364 P.2d 47; Laughnan v. Sorenson, 139 Mont. 531, 364 P.2d 433. The respondent in the district court, and before this court argues that this case is an exception to the rule of guest cases in that here the host knew of a concealed danger on the premises and is guilty of negligence if he allows the guest to come on the premises unwarned. In so contending he cites a recent case of this court, Maxwell v. Maxwell, 140 Mont. 59, 367 P.2d 308, and 38 Am.Jur. Negligence, § 117, p. 778. The respondent cites another recent opinion of this court which we find not applicable due to the fact it concerned a business invitee, McIntosh v. Linderkind Lumber Co., 144 Mont. 1, 393 P.2d 782. We are quite aware of these holdings and of our obligation to sustain a jury finding when possible, but must under the facts presented here, find that a directed verdict should have been given under the laws of this state. Here the respondent entered the home of appellants, not at the request of the appellants, but at the direction of another guest. She walked onto an unlit platform just inside the door and we fail to observe in any manner how negligence can be imputed to the appellants on the theory that the stairway was a concealed trap. An early English case well states the historical basis for the guest rule where the court said: "* * * one who comes on an express invitation to enjoy the hospitality as a guest must take the house as he finds it, and that his right to recover for an injury growing out of the dangers on the premises is not greater than that of a mere licensee. The principle of the decision seems to be that a guest who is receiving the gratuitous favors of another has no such relation to him as to create a duty to make the place where hospitality is tendered safe or better than it is." Southcote v. Stanley, 1 Hurl &amp; N. 246. See also Prosser on Torts 2d., pp. 447-448. In Montana the law is well-settled as to the duty owed a social guest. Our latest decision is Maxwell v. Maxwell, 140 Mont. 59, 367 P.2d 308, wherein this court said: "The jury having concluded that plaintiff was a social guest or licensee our next question is to determine what duty the defendant owed to her. "The court instructed the jury that `the defendants owed her only the duty to refrain from acts of willful and wanton negligence.' * * * "The duty to a licensee is generally stated as the duty to refrain from acts of willful and wanton negligence. * * * "`In 38 Am. Jur., Negligence, § 117, p. 778, the duty to a social guest is stated as follows: "`* * * There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises. No exception is made to the rule because of the fact that the guest enters on the host's express invitation to enjoy his hospitality. * * * A better reason for the rule is that a host merely offers his premises for enjoyment by his guests with the same security that the host and members of his family who reside with him have. However, the rule is that a host who knows of a concealed danger upon the premises is guilty of negligence if he permits the guest, unwarned of the peril, to come in contact therewith, and he may be held liable to the guest for an injury thus sustained.'" We then have the question of whether or not there was a trap or hidden peril. Again, the Maxwell case is the authority in Montana, where it is held: "`In 65 C.J.S. Negligence, § 38, a statement is made regarding hidden perils as follows: The exceptions noted in the Maxwell case, supra, are not present here in that this stairway was not a concealed danger under the facts presented here. 25 A.L.R.2d 474. The verdict and judgment of the trial court is reversed with directions to dismiss the case. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES DOYLE, ADAIR and CASTLES concur.

May 4, 1967

c3e16cbe-be64-45c3-aaa6-6f2bb8676880

Lewis v. Potter

427 P.2d 306

11072

Montana

Montana Supreme Court

427 P.2d 306 (1967) Arlin C. LEWIS, Plaintiff and Appellant, v. Lynn W. POTTER et al., Defendants and Respondents. No. 11072. Supreme Court of Montana. Submitted April 10, 1967. Decided May 12, 1967. Baldwin &amp; Jellison, Kalispell, for appellant. S.Y. Larrick, Kalispell, for respondents. Robert Swanberg and L.V. Harris, Helena, amicus curiae. JAMES T. HARRISON, Chief Justice. This is an appeal from an order of the district court granting defendants' motion for summary judgment. We wish to preface our discussion of this case by stating that this is an action brought by an employee against third persons whom such employee alleges caused the injuries which he received in the course of his employment, as permitted by section 92-204, R.C.M. 1947, a part of the workmen's compensation act. For this reason the matter of workmen's compensation is not otherwise mentioned in this opinion, such compensation being paid to a workman injured in the course of his employment under other provisions of the workmen's compensation law, and it is not here involved. The plaintiff-appellant is Arlin C. Lewis and will be referred to as plaintiff. The defendants-respondents are all members of the same family who have formed a partnership which does business as Cascade Machine Works and Montana Plywood. The individual members of the partnership are Lynn W., Dora M., Donald L., and David E. Potter. We will refer to the individual members of the partnership by name and to all the members of the partnership as defendants. The only issue presented by plaintiff in this appeal is stated in his brief in this manner: "Did the District Court err in entering summary judgment in the instant case upon its conclusion that the loaned servant doctrine was applicable under the facts of the case?" The events which led up to the accident and which established the relationships between the various individuals that were working at the scene of the accident are these: Howard Hamilton the employer and direct supervisor of plaintiff, Arlin C. Lewis, owned and operated the Whitefish Block Shop, a business generally engaged in excavating, cement, sand and gravel operations. School officials in Whitefish, Montana, approached Hamilton concerning his interest *307 in digging up and removing from the school premises a large oil fuel tank which was no longer being used. There was no written agreement between Hamilton and the school officials, but Hamilton did agree to dig up the tank to remove it from the school premises, and to backfill the area. Hamilton also agreed that these operations would be performed during a period of the year when the children were not attending school. During the last week of December, 1962, Hamilton began his project. He immediately determined that his equipment alone would not be adequate to remove the tank as it was quite large. The tank was cylindrical in shape, having the approximate dimension of 10 feet in diameter and 22 feet in length. The record contains no reference to the exact weight of the tank, but from the difficulty encountered in attempting to remove it from the hole in which it rested, it can be assumed that its weight was considerable. Hamilton contacted two other business firms that were generally engaged in the business of excavating. He rented a backhoe (with operator) from Ole's Plumbing in Whitefish and a backhoe (with operator) from B &amp; F Excavating in Columbia Falls. Hamilton also had various pieces of his own excavating equipment at the scene. After the tank had been uncovered, Hamilton decided that he would need additional equipment, and he contacted Lynn Potter concerning the possibility of securing the use of defendants' "cherrypicker." At this point we note that defendants are generally engaged in the plywood business. Their business does extend to some machine shop repairs and to some logging operations. However, their regular business is not excavating nor renting equipment that can be used for this purpose. Lynn Potter supplied the "cherrypicker" (with operator) to Hamilton, but this additional equipment was still inadequate. Hamilton again sought the aid of Lynn Potter and requested the use of a bulldozer. Defendants supplied a bulldozer (with operator). The bulldozer arrived on the scene on the afternoon of December 31, 1962. Cables had been strung around the tank and attached to the various pieces of equipment. Likewise another cable was strung around the tank and attached to the bulldozer after it arrived on the scene. Initial attempts to pull the tank out of the hole after the bulldozer was connected to the tank were unsuccessful. It was then decided that the cable around the tank and connected to the bulldozer should be slid lower around the tank. Plaintiff, who was an employee of Hamilton, Hamilton, and another man jumped into the hole to slide the cable down into a lower position. Plaintiff grabbed the cable at a place where the cable wrapped around the tank and pulled down. Hamilton began moving out of the hole to signal the bulldozer operator to make a move to give the cable more slack. It was at this time that somehow the slack in the cable quickly took up, cutting off some fingers on plaintiff's left and right hands. Plaintiff sued defendants alleging that the operator of defendants' bulldozer had operated the bulldozer in such a negligent and careless fashion as to cause plaintiff's injury. In preparation for the trial of this action, many depositions were taken from the various parties and individuals who had any knowledge of the accident. Upon these depositions and other pleadings that were part of the district court file, the defendants moved for summary judgment contending that the operator of the bulldozer was in fact a loaned servant or employee of Hamilton, and thus, the plaintiff was barred from recovering from defendants. The district court granted defendants' motion for summary judgment, agreeing with their contention. Plaintiff admits that his action will not lie if the bulldozer operator is indeed the loaned servant or employee of Hamilton. But it is plaintiff's contention that the facts of this case do *308 not justify the district court's conclusion. We disagree with plaintiff's position and find that the facts do support the district court's ruling. As noted in the briefs of both parties, there have not been many decisions in Montana on the question of the loaned servant doctrine. This court has rendered several decisions which have analyzed the decisions from other jurisdictions and have established the legal rules which determine when the employee or servant of one person becomes the employee or servant of another. One case which dealt with this question was Devaney v. Lawler Corp., 101 Mont. 579, 589, 590, 56 P.2d 746. The facts of that case are briefly these: As is well known, during the early 1930's the Congress of the United States enacted legislation to combat the widespread unemployment that then existed. Congress created various government agencies to carry on public work projects. The Civil Works Administration (CWA) was one of these agencies. The CWA was without the necessary men and equipment, but it quickly hired various personnel. These men in turn arranged for equipment. One Hicks was general superintendent of the CWA highway work in Montana. He entered into an agreement with the Lawler Corporation whereby Lawler Corporation agreed to furnish trucks and drivers to the CWA, to properly gas and oil these trucks, and to furnish a man to keep the trucks in good repair. In return, the CWA agreed to pay a set sum per hour for the truck with the driver and the agreed upkeep. The Lawler Corporation was to pay the drivers itself. Lawler Corporation had previously been engaged in general highway construction work, and this business of renting out trucks was not its usual business. Devaney, an employee of the CWA, was injured when a truck in which he was a passenger was involved in an accident. The truck and its driver, one Cooper, had been supplied to the CWA by Lawler Corporation. Devaney sued the Lawler Corporation for Cooper's alleged negligence, but Lawler Corporation contended that Cooper was in fact the servant or employee of the CWA. This court first discussed the appropriate factors to be considered in determining whose servant Cooper was: "Different factors and elements tending to show the power of control in the general or special employer are presented in practically every case dealing with the subject. This perhaps explains to a great extent the seeming inconsistency and conflict among the decided cases. In the final analysis, however, the authorities are pretty generally in accord upon the proposition that the really determinative and controlling question is, In whose business was the servant engaged? This fact stands out in many of the cases to which we have already referred." This court then continued to explain its reasons for finding that Cooper was an employee of the CWA in the following manner: "The matter then resolves itself into a legal proposition, which proposition is narrowed by the inquiry as to whose servant Cooper was at the time of the accident. It seems to us to be incontravertible that he was engaged in the business of the CWA, that he was working for the CWA, and that the CWA was exercising complete control, domination and direction in the premises. We say this in spite of the fact that although defendant owned the trucks and employed and paid the drivers and perhaps had a right to discharge a driver, nevertheless it had no control, authority or supervision over either the trucks or the drivers during the time they were on the job; there they were under the absolute domination of the CWA officials. "It is important to have in mind in this connection that the defendant company was not generally engaged in hiring out trucks with drivers. It was not engaged in the general taxicab or trucking business; on the contrary, its business was that of general contracting, and it engaged in the CWA enterprise outside of the usual course of business and as hereinbefore *309 outlined. It was not then and had not been engaged in the business of hiring its trucks out in the manner in effect on this occasion, or at all." We have quoted extensively from the Devaney case, supra, since the facts of the instant case fit very closely with the facts of the Devaney case. The facts show that it was Hamilton's project; that he was in charge and directed the operations; and that he obtained the necessary men and equipment. Hamilton's position is similar to the position of the CWA. Like the CWA, Hamilton may have been unable to fire the bulldozer operator, but he did have supervision over him during the time the operator took part in the operations. Defendants were paying the bulldozer operator and could have fired him and replaced him with another operator, but they could not, and did not, supervise his performance at the scene of the tank removal. Another important factor noted in the Devaney case, supra, was the fact that defendant Lawler Corporation was not generally engaged in the type of business in which plaintiff was injured. In the instant case, it is not the usual business of defendants to rent out bulldozers to aid in excavation projects. In Oklahoma Ordnance Works Authority v. Garrison (Okla.1967) 424 P.2d 983, 985, the Supreme Court of Oklahoma noted that the usual loaned servant case arises "* * * where it is not the usual business of the original master to loan or hire out such servant and the business of such master is not directly furthered thereby, the borrowing master alone benefitting from the servant's labor and the original master making no profit from the borrowing of his servant." Defendants' bulldozer and its operator were clearly engaged in Hamilton's business, and Hamilton was the one who stood to profit from the work performed by the bulldozer and its operator. As long as defendants consented to the bulldozer and its operator remaining at the job, they were powerless to control the operator, and they did not stand to benefit from the removal of the tank. The district court properly concluded that the bulldozer operator was the loaned servant or employee of Hamilton and did not err in granting the motion for summary judgment. The order appealed from is affirmed. DOYLE, ADAIR, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

May 12, 1967

972ee044-aabb-47ee-b3a5-4d216e248698

Robuck v. Dennis

425 P.2d 327

11168

Montana

Montana Supreme Court

425 P.2d 327 (1967) Irene B. ROBUCK, also known as Irene Robuck, plaintiff and Appellant, v. Jesse J. DENNIS, also known as J.J. Dennis, and Drusilla E. Dennis, his wife et al., Cross-Defendants, v. George L. BACKEN and Evelyn Backen, his wife, Defendants and Cross-Complainants and Respondents. No. 11168. Supreme Court of Montana. Submitted January 9, 1967. Decided March 21, 1967. Petition for rehearing denied April 5, 1967. Colgrove &amp; Brown, Miles City, Robert E. Purcell, Jordan, Bruce M. Brown (argued), Miles City, for appellant. Lucas &amp; Jardine, Miles City, Charles W. Jardine (argued), Miles City, for respondents. JAMES T. HARRISON, Chief Justice. This is an appeal from a judgment entered in a quiet title action tried by the court sitting without a jury. The district court made findings of fact and conclusions of law. The portion of the judgment which is relevant to this appeal held that the plaintiff was the constructive trustee for the defendant of the disputed land and that defendant was the owner of the disputed land. The plaintiff-appellant is Mrs. Irene B. Robuck and she will be referred to by name. The defendants-respondents are George L. Backen and Evelyn Backen, husband and wife, and they will be referred to by name. The judgment entered in this action established other interests in the disputed land. Both parties admit that the judgment is correct in regard to the interests of Garfield County and Mr. and Mrs. Alven R. Clark. Therefore, we limit our discussion to the controversy between Mrs. Robuck and Mr. Backen. The issue presented by this appeal is whether the evidence introduced at the trial by the Backens is of the nature that is required to establish the constructive trust which was found by the district court. The facts of the case are these. Mrs. Robuck was the record owner of the land on July 10, 1962, when she entered into a *328 contract for the sale of the disputed land to Mr. and Mrs. Alven R. Clark. In April, 1963, Mrs. Robuck sought to quiet title to the land, but Mr. Backen resisted the action by claiming to be the owner of the land by reason of a constructive trust that had been created between Lewis Thompson and Backen in 1943. The district court concluded as a matter of law that "Lewis Thompson acquired and held title and possession of lands involved in this action as constructive trustee for defendant George L. Backen" and "That plaintiff acquired title to said lands subject to the constructive trust mentioned above and likewise held legal title as constructive trustee for defendant." Mrs. Robuck and Backen are sister and brother. Mr. Lewis Thompson, who was also known as L. Thompson, was in no way physically or legally related to Mrs. Robuck or Backen, but he did raise them both as if they were his own children. He was referred to by both of them as "Dad." The land which is in dispute is situated in Garfield County, Montana. Mrs. Robuck's exhibits reveal that Garfield County took the property for delinquent taxes in 1939. The land was conveyed to L. Thompson, agent, in 1943 by means of a commissioner's deed. This deed was recorded in 1945. L. Thompson, agent, conveyed the land to Irene Robuck by a warranty deed dated December 10, 1951, wherein the parties are described as "L. Thompson, agent, also known as L. Thompson, a single man, party of the first part, and Irene Robuck, of Whitefish, Montana, principal to the first party the party of the second part." (Emphasis added.) This deed was recorded in 1959. Mrs. Robuck's testimony confirmed the fact that Mr. Thompson was considered by her to be like a father. She stated that she read in the newspaper that the land was going to be sold for taxes and instructed Mr. Thompson in 1943 to buy it for her. Mr. Thompson used his own money to purchase the property. Mrs. Robuck testified that she paid all the taxes on the property from the time of its purchase in 1943. Prior to Thompson's death on May 11, 1961, Mrs. Robuck stated that she sent the money for the taxes to Thompson, thereafter she paid the taxes directly herself. During the period between 1943 and 1961, Mrs. Robuck testified that she sent money to Thompson to enable him to make various repairs to the property. Mr. Backen's exhibits showed that he was the record owner of the property in 1935. He testified that in 1935, when Thompson was 75 years of age, Thompson and he entered into an oral agreement by which Thompson was permitted to live on the property rent free provided he kept up the taxes. As previously noted, the taxes were not kept up, and Garfield County took the property. Backen attempted to raise the money to redeem the property, but he was unsuccessful. Mr. Backen's testimony concerning the conversation took place after the purchase of the land by Thompson in 1943 is very critical to the entire case. The strongest testimony that Backen could give concerning the alleged constructive trust was that Thompson "didn't say he was my agent, I more or less assumed he was, due to the fact that agent was on the tax title deed." As previously noted, Backen made no claim to the disputed land until Mrs. Robuck instituted this quiet title action. Backen's explanation of why he took no action to establish his claim to the property is difficult to understand, if not a little unbelievable. Mr. Backen testified that he did not learn of the transfer of the land from Thompson to Mrs. Robuck until the day of Thompson's death in May, 1961. He stated that he consulted four different lawyers after Thompson's death and that each attorney advised him to do nothing until Mrs. Robuck brought some action. He identified one as Mr. Lemire of Miles City, now deceased, another as the county attorney in his home county, and two others in Lewistown whose names he could not remember. It is *329 at this point that Backen's testimony becomes a little difficult to believe. It may have been that Backen misinterpreted the advice given to him by the various attorneys, but we seriously doubt that he was advised to further delay his claim to the disputed property, especially in view of the nature of his claim. The testimony of Backen's two other witnesses added little support to Backen's position. Previous decisions of this court have established the nature of the evidence that must be presented in order to prove a constructive trust in cases such as the instant case. In Lewis v. Bowman, 113 Mont. 68, 78, 121 P.2d 162, 167, we stated the rule as follows: "Where the legal title rests in one person, in order to establish a resulting trust for the benefit of another against the presumption in favor of the legal title, the evidence must be clear and convincing, especially when an attempt is made to establish a resulting trust after the lapse of many years, or where parol evidence alone is relied upon." And again in Barrett v. Zenisek, 132 Mont. 229, 238, 315 P.2d 1001, 1006, we stated that "in order to recover upon the theory of a resulting or constructive trust, the proof must be clear, satisfactory, convincing and practically free from doubt." (Citing the Lewis case, supra.) Thus, when Mrs. Robuck established record title to the disputed land, the burden was cast upon Backen to prove his contention of a constructive trust with evidence clear, satisfactory, convincing and practically free from doubt. Mr. Backen's evidence does not meet these requirements. Backen's claim is made some 20 years after the alleged constructive trust was created. Further, his claim is based primarily on a conversation he had with a man who was not able to confirm or deny the conversation since he was deceased. The strongest position that Backen was able to make out of this conversation with Thompson was that he "assumed" that Thompson was his agent. A constructive trust cannot be established in this case on the mere assumption of one party to the alleged trust. The action of Thompson in deeding the property to Mrs. Robuck in 1951 indicates that he did not feel obligated to hold the property for Mr. Backen. The purpose of allowing proof of a constructive trust is to prevent unjust enrichment and fraud, but, if we were to allow such weak evidence to establish a constructive trust, the purpose would be defeated. We hold that Mrs. Robuck has established that she was the record owner of the land and that Mr. Backen has failed to establish the alleged constructive trust. The district court erred in its findings of fact, conclusions of law, and judgment insofar as they deal with the constructive trust. The judgment appealed from is reversed with instructions to enter new findings of fact, conclusions of law, and judgment not inconsistent with what has been stated in this opinion. ADAIR, DOYLE, CASTLES and JOHN CONWAY HARRISON JJ., concur.

March 21, 1967

bfb607a6-c25f-450a-ad37-e175eec6b4cd

ZELL v ZELL

N/A

13161

Montana

Montana Supreme Court

No. 13161. I N THE SUPREPE COURT OF THE STATE O F M O N T A N A 1977 R A Y M O N D W. ZELL, P l a i n t i f f and Respondent, VICTORIA ZELL, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court o f t h e Ninth J u d i c i a l D i s t r i c t , Honorable B. W. Thomas, Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t : Smith, Emmons, B a i l l i e and Walsh, G r e a t F a l l s , Montana Robert J. Emmons a r g u e d , G r e a t F a l l s , Montana For Respondent : F r i s b e e and Moore, Cut Bank, Montana L a r r y E p s t e i n a r g u e d , Cut Bank, Montana Submitted: March 30, 1977 Decided: JUN -6 1971 F i l e d : ! 6 19id - C l e r k M r . Chief J u s t i c e Paul G. Hatfield d e l i v e r e d t h e Opinion of t h e Court . This is an appeal of t h e d i s t r i c t c o u r t ' s property d i v i s i o n rendered i n a divorce a c t i o n . Before t h e m e r i t s of t h e case can be reached w e must determine whether t h i s appeal i s properly before t h i s Court. Respondent, Raymond W. Z e l l , has f i l e d a motion t o dismiss t h i s appeal, based upon t h e f a i l u r e of a p p e l l a n t , V i c t o r i a M. Z e l l , t o f i l e a timely n o t i c e of appeal with t h e d i s t r i c t c o u r t . There has been no d i s t r i c t c o u r t record f i l e d with t h i s Court t h e r e f o r e w e must r e l y upon t h e b r i e f s of t h e p a r t i e s t o e s t a b l i s h t h e t i m e sequence involved. The judgment was entered October 2 0 , 1975, with t h e n o t i c e of e n t r y of judgment personally served upon a p p e l l a n t ' s t r i a l counsel October 23, 1975. A f t e r contacting another a t t o r n e y a p p e l l a n t f i l e d a n o t i c e of appeal on December 9 , 1975. Thereafter a p p e l l a n t r e t a i n e d a t h i r d a t t o r n e y t o present t h i s appeal. The f a c t s show t h i s n o t i c e of appeal w a s f i l e d 17 days a f t e r t h e e x p i r a t i o n of t h e 30 days allowed f o r f i l i n g a n o t i c e of appeal by t h e Montana Rules of Appellate C i v i l Procedure. Rule 4 ( a ) , M. R.App.Civ.P. s t a t e s : "An appeal s h a l l be taken by f i l i n g a n o t i c e of appeal i n t h e d i s t r i c t court. * * *" (Emphasis supplied.) Rule 5, M.R.App.Civ.P. states i n p a r t : "The t i m e within which an appeal from a judgment o r an order must be taken s h a l l be 30 days from t h e e n t r y t h e r e o f , except t h a t i n c a s e s where s e r v i c e of n o t i c e of e n t r y of judgment i s required by Rule 77(d) of t h e Montana Rules of C i v i l ~ ; o c e d u r e t h e time s h a l l be 30 days from t h e s e r v i c e of n o t i c e of e n t r y of judgment * * *. "Upon showing of excusable n e q l e c t , t h e d i s t r i c t c o u r t may extend t h e time f o r t i l i n g t h e n o t i c e of appeal by any p a r t y f o r a period not t o exceed 30 days from t h e e x p i r a t i o n of t h e o r i g i n a l time prescribed by t h i s r u l e . " (Emphasis supplied.) It is well s e t t l e d i n Montana t h a t an untimely n o t i c e of appeal is a j u r i s d i c t i o n a l d e f e c t , which renders t h i s Court powerless t o hear t h e appeal. Jackson v. Tinker, 161 Mont. 51, 504 P.2d 692; L e i t h e i s e r v. Mont. S t a t e Prison, 161 Mont. 343, 505 P.2d 1203; Haywood v. S e d i l l a , 167 Mont. 101, 535 Appellant does not d i s p u t e t h e f a c t t h a t t h e f i l i n g of her n o t i c e of appeal was untimely. What she now argues is t h a t she is e n t i t l e d t o an extension of t i m e , a l l e g i n g excusable neglect. However, t h i s Court i s not t h e proper forum f o r such a request. Rule 5, M.R.App.Civ.P., only g r a n t s t o t h e d i s t r i c t c o u r t t h e a u t h o r i t y t o extend t h e t i m e f o r taking an appeal. Furthermore Rule 3 and Rule 2 1 ( b ) , M.R.App.civ.P., p r o h i b i t t h i s Court from extending t h e t i m e f o r t a k i n g an appeal. Rule 3 states: " I n t h e i n t e r e s t of expediting d e c i s i o n upon any matter before it, o r f o r o t h e r good cause shown, t h e Supreme Court may, except as otherwise pro- vided i n Rule 21(b) , suspend t h e requirements o r provisions of t h e s e r u l e s on a p p l i c a t i o n of a p a r t y o r on its own motion and may order pro- ceedings i n accordance with i t s d i r e c t i o n . " (Emphasis supplied. ) Rule 2 1 (b) provides: "The c o u r t f o r good cause shown may upon motion - - extend t h e time prescribed by t h e s e Rules o r by its order f o r doing any act, and may thereby permit an act t o be done a f t e r t h e e x p i r a t i o n of such t i m e i f t h e f a i l u r e t o act w a s excusable under t h e circumstances; but t h e c o u r t may not extend t h e time f o r f i l i n g a n o t i c e of appeal, except as provided i n Rule 5." (Emphasis supplied.) The combined e f f e c t of Rule 3 and Rule 21(b) is f u r t h e r explained i n t h e Advisory Committee's Note t o Rule 3 , M.R.App.Civ.P., wherein it i s s t a t e d : " * * * Rule 21(b) p r o h i b i t s t h e Supreme Court from extending t h e t i m e f o r taking appeal." This i n t e r p r e t a t i o n of Rule 3 and Rule 21(b) i s i d e n t i c a l t o t h a t given t h e i r counterparts i n t h e f e d e r a l r u l e s of a p p e l l a t e procedure. The Advisory Committee notes p o i n t o u t t h a t t h e s e s p e c i f i c r u l e s , Rule 3 and Rule 21(b) w e r e p a t t e r n e d a f t e r t h e f e d e r a l r u l e s . I n f a c t , Rule 3, M.R.App.Civ.P. and Rule 2 , of t h e f e d e r a l r u l e s a r e i d e n t i c a l i n substance and comment. 9 Moore's Federal P r a c t i c e 11202.03, i n t e r p r e t i n g Rule 2 of t h e f e d e r a l r u l e s s t a t e s : "Thus a c o u r t of appeals has no power t o permit an appeal t o be sought o r taken a f t e r t h e ex- p i r a t i o n of t h e t i m e f i x e d by s t a t u t e o r r u l e . * * *" (Emphasis supplied. ) See a l s o : Bogart v. People o f S t a t e of C a l i f o r n i a , 409 F.2d 25, cert. den. 393 U.S. 1101, 89 S.Ct. 900, 2 1 L Ed 2d 793; United S t a t e s v. Tallman, 437 F.2d 1103; Bryant v. E l l i o t t , 467 F.2d 1109; Cramer v. W i s e , 494 F.2d 1185. For t h e s e reasons, w e conclude t h a t t h i s Court h a s no a u t h o r i t y t o permit an appeal t o be taken a f t e r t h e e x p i r a t i o n of t h e t i m e f i x e d by Rule 5, M.R.App.Civ.P. I f an extension of t i m e i s sought, t h e proper forum t o make such a r e q u e s t is t h e d i s t r i c t c o u r t . A question, which n a t u r a l l y arises and which must be discussed, i s t h e l e n g t h of t i m e a p a r t y has t o r e q u e s t a n exten- s i o n of t i m e from t h e d i s t r i c t c o u r t f o r f i l i n g a n o t i c e of appeal. The f e d e r a l r u l e s of a p p e l l a t e procedure s p e c i f i c a l l y address t h i s s u b j e c t . I n 9 Moore's Federal P r a c t i c e 11204.08, Rule 4 (a) provides i n p a r t : " * * * Such an extension may be granted b e f o r e o r a f t e r t h e t i m e otherwise p r e s c r i b e d by t h i s subdivision * * *." (Emphasis supplied.) The Montana Rules of Appellate C i v i l Procedure are s i l e n t a s t o t h i s s u b j e c t and do n o t provide any guidance one way o r t h e o t h e r . W e b e l i e v e t h a t allowing a p a r t y t o r e q u e s t such an extension of t i m e before o r a f t e r t h e e x p i r a t i o n of t h e o r i g i n a l t i m e prescribed by Rule 5, M.R.App.Civ.P., i s t h e b e t t e r procedure and w e adopt t h i s view. This does n o t , however, g i v e a p a r t y a n unlimited amount of t i m e t o request an extension of time from t h e d i s t r i c t c o u r t . Rule 5 provides: "Upon showing of excusable neglect, t h e d i s t r i c t c o u r t may extend t h e t i m e f o r f i l i n s t h e n o t i c e - - of appeal by any p a r t y f o r a period-not t o exceed 30 days from t h e e x p i r a t i o n of t h e o r i q i n a l t i m e prescribed by t h i s Rule." (Emphasis supplied.) Consequently t h e d i s t r i c t c o u r t l o s e s its a u t h o r i t y t o g r a n t such an extension a f t e r t h e a d d i t i o n a l 30 day period expires. A s applied t o t h i s case, t h i s r u l e would r e q u i r e t h e a p p e l l a n t t o make a request f o r extension of time no l a t e r than 60 days from t h e s e r v i c e of n o t i c e of e n t r y of judgment. For t h e s e reasons, t h e respondent's motion t o dismiss t h i s appeal i s granted. Furthermore, t h e d i s t r i c t c o u r t is i n s t r u c t e d t h a t its a u t h o r i t y t o consider a p p e l l a n t ' s r e q u e s t f o r an extension of t i m e , i f she should s o choose, e x p i r e s 60 days from t h e d a t e of s e r v i c e of n o t i c e of e n t r y of judgment, excluding t h e amount of time we concur: L 7 h - LA/& - - - - - - - - ------ -----

June 6, 1977

90464d2a-f733-4a5e-acfb-ad3af71ea2e6

In Re Petition of Dixson

149 Mont. 412, 430 P.2d 642

11328

Montana

Montana Supreme Court

430 P.2d 642 (1967) 149 Mont. 412 In re Petition of Donald DIXSON. No. 11328. Supreme Court of Montana. May 10, 1967. Donald Dixson, pro se. JAMES T. HARRISON Chief Justice. Donald G. Dixson, an inmate of the Montana State Prison, appearing pro se, has filed with this court a petition for a writ of habeas corpus. Petitioner makes two contentions, first that the information under which he was charged was duplicitous, vague, unclear and fatally defective upon its face and by reason thereof he could not understand the nature and cause of the accusation against him. Secondly, that the Uniform Act for Out-of-State Parolee Supervision, sections 94-7901 and 94-7902, R.C.M. 1947, insofar as sub-sections (3) and (4) of said section 94-7901 are concerned, is repugnant to the United States Constitution because they deny citizens, and petitioner specifically, due process of law and equal protection thereof, including access to the courts both state and federal, deny the right to legal counsel and abridge and deny the privileges and immunities of the citizens of the several states. As to the first contention, petitioner alleges that the information charged him with two separate and distinct crimes, robbery and premeditated murder, and that under the law then in force a criminal information could not embrace more than one offense. By reference to the copy of the information annexed to his petition it appears that it charged the defendant with the crime of first degree murder, in that on or about June 10, 1953, the defendant committed the crime of murder in the perpetration of robbery, reciting the commission of the robbery and that in the perpetration of the robbery the defendant wilfully, unlawfully, feloniously, maliciously, deliberately, premeditatedly and with malice aforethought killed and murdered the deceased. This information alleged but one crime, that of murder in the first degree as defined by section 94-2503, R.C.M. 1947 which reads: "All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willufl, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, or perpetrated from a *643 deliberate and premeditated design, unlawfully and maliciously, to effect the death of any human being other than him who is killed, is murder of the first degree; and all other kinds of murder are of the second degree." This section has been interpreted by this Court in State v. Reagin, 64 Mont. 481, 210 P. 86; State v. Bolton, 65 Mont. 74, 212 P. 504; and State v. Jackson, 71 Mont. 421, 230 P. 370. There is no merit to this contention of petitioner. As to petitioner's second contention it appears from his petition that he was paroled on or about December 20, 1963, under the provisions of the Uniform Act for Out-of-State Parolee Supervision, he being required to live and work in Port Orford, Curry County, Oregon; that he was then under the supervision and jurisdiction of the State of Oregon; that on or about July 11, 1964, petitioner was taken into custody by the Sheriff of Curry County as a parole violator, that he was held until July 30, 1964, when he was delivered by the sheriff to officers of the State of Montana, who transported him back to the Montana State Prison. In support of his contention petitioner refers partially or fully to the following provisions of the United States Constitution: (1) Article I, § 8, clause 3; (2) Article IV, § 1; (3) Article IV, § 2, clauses 1 and 2; (4) Amendment VI; and (5) Amendment XIV, § 1. Petitioner's contention that various constitutional rights of his have been violated is not novel. In fact, the case of Pierce v. Smith, 31 Wash. 2d 52, 195 P.2d 112, 114, certiorari denied 335 U.S. 834, 69 S. Ct. 24, 93 L. Ed. 387, decided on June 25, 1948, dealt with constitutional arguments that were very similar if not identical. The facts of the Pierce case are these: Pierce was convicted of a felony in Washington on November 10, 1939, and sentenced to twenty years in the state reformatory. Under provisions of the "Interstate Compact for the Supervision of Parolees and Probationers" Pierce was paroled to his home in Oregon City, Oregon. On January 13, 1943, Pierce was convicted of a crime in Oregon and sentenced to one year in jail. Washington revoked his parole on March 5, 1943, and upon completion of his sentence in Oregon, Pierce was returned to the Washington state reformatory as a parole violator. Pierce was again paroled to his family in Oregon in April 1944, but upon the recommendation of the Oregon board, his parole was revoked, and he was returned to the Washington state reformatory. Pierce filed a petition for writ of habeas corpus in the Supreme Court of Washington on October 2, 1947, alleging among other things that he was unlawfully removed from Oregon without extradition and that his detention was in contravention of his constitutional rights. The Supreme Court of Washington specifically pointed out that the Congress of the United States consented to interstate compacts such as the one Pierce was attacking by an Act of June 6, 1934, which is presently Title 4, U.S.C.A., § 112. Next the Washington Court pointed out that "All legal requirements to obtain extradition of fugitives from justice are waived on the part of states party to the compact as to such persons, and the decision of the sending state to retake a person on probation or parole, is conclusive upon and not reviewable within the receiving state." (116 of 195 P.2d.) The Washington Court noted that contentions that such interstate compacts are repugnant to Art. IV, § 2, clause 2, and the Fourteenth Amendment of the United States Constitution had been considered in Re Tenner, 20 Cal. 2d 670, 128 P.2d 338, and rejected. Finally, the Washington court noted that "A parole is not a right, but a privilege to be granted or withheld, as sound official discretion may impel." (117 of 195 P.2d.) Pierce was not satisfied with the Washington court's decision, and he sought relief in the federal courts, Pierce v. Smith, 175 F.2d 193. The United States Court of Appeals, Ninth Circuit, on June 2, 1949, *644 denied Pierce any relief, and though the court felt that all the questions presented to the Washington court were not properly before it, the court by way of dictum approved the Washington's court's decision. At least four other Circuit Courts of the United States Court of Appeals have considered the various constitutional arguments raised by the petitioner. The case involed, the year and the circuit court are listed as follows: United States ex rel. MacBlain v. Burke, 200 F.2d 616, (1952, Third Circuit); Cook v. Kern, 330 F.2d 1003, (1964, Fifth Circuit); United States ex rel. Simmons on Behalf of Gray v. Lohman, 228 F.2d 824, (1955, Seventh Circuit); Caveny v. State of Illinois, 359 F.2d 787, (1966, Seventh Circuit); and Curtis v. Bennett, 351 F.2d 931, (1965, Eighth Circuit). The above list of cases is not intended to be a complete list of the courts which have considered the problem. We believe that petitioner confuses the rights which are extended to one charged with a crime and the conditions which the state may impose on a convicted felon as terms for his parole. In Curtis v. Bennett, supra, at 933 of 351 F.2d it is stated: "A parole is a matter of grace, not a vested right. A large discretion is left to the States as to the manner and terms upon which paroles may be granted and revoked. Federal due process does not require that a parole revocation be predicated upon notice and opportunity to be heard. (Citing previous cases)." The Federal Court in United States ex rel. Simmons on Behalf of Gray v. Lohman, supra, at 826 of 228 F.2d, clearly pointed out the distinction in the two legal positions: "We might add that we discern no similarity between the situation wherein a person has been released on parole or probation and that where the person commits a crime and flees from the jurisdiction. In the former situation, a person is granted permission to take up his abode in another State and enters into an agreement with the sending State which, if violated, requires his return. Having entered into such agreement, it is not discernible how or in what manner his constitutional rights are violated when it is sought, upon a violation, to obtain his return. Assuming, however, contrary to what we think, that any constitutional right is involved, it is waived by the agreement which the parolee makes with the state." In order to secure his own parole, petitioner agreed to waive certain rights. He is now bound by his own waiver. The petitioner's second contention is likewise without merit. The writ sought is denied and the proceeding is dismissed. DOYLE, ADAIR, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

May 10, 1967

bb4abacb-4e2e-4cc8-99be-2e461c8140bb

Brown v. Thornton

432 P.2d 386

11297

Montana

Montana Supreme Court

432 P.2d 386 (1967) Dale BROWN, Plaintiff and Appellant, v. Warren L. THORNTON, and Gertrude L. Thornton, Defendants and Respondents, and Dale Thornton and Lillian Thornton, Intervenors. No. 11297. Supreme Court of Montana. Submitted September 11, 1967. Decided October 10, 1967. *387 Robert Hurly (argued), Glasgow, for appellant. Paul E. Hoffmann, Glasgow, Alexander, Kuenning &amp; Hall, John Hall (argued), Great Falls, for respondents. Francis Gallagher, Glasgow, for intervenors. JOHN C. HARRISON, Justice. This is an appeal from a judgment for the defendant entered following an order granting a motion for summary judgment. The judgment was entered in the District Court at Glasgow, the Honorable Tom Dignan, District Judge, presiding. As a result of intervention, there are two sets of parties named "Thornton." The defendants and respondents are Warren L. Thornton, and his wife Gertrude. These will be referred to as "defendants." *388 Dale Thornton, the son of defendants, and his wife Lillian will be referred to as "intervenors." The plaintiff and appellant, Brown, will be referred to as "plaintiff." The trial court had the pleadings, the depositions of plaintiff and defendant, and certain exhibits before it from which to make its decision. It appears from these documents that the intervenors bought certain real property described in the complaint in about September 1957. Between October 1957, and October 1960, plaintiff sold and delivered building materials and supplies to the intervenors which were used in the construction of improvements on this property. About April 17, 1959, the intervenors mortgaged the property to defendants to secure loans made to them by defendants in the approximate amount of $45,000.00. Intervenors were unable to meet the mortgage payments, and the property was conveyed by them to defendants about January 31, 1961, at which time the mortgage was satisfied of record. Shortly before intervenors conveyed the property to defendants, plaintiff filed a mechanic's lien, dated January 26, 1961, upon the property in question for the same amount claimed due from defendants in this action. This mechanic's lien names the intervenors as the owners of the property. Plaintiff admits that no foreclosure action was instituted on this lien and that it has lapsed. In October 1962, intervenors filed a petition in bankruptcy. Plaintiff received notice of this petition, which included the debt to him that is involved here. At this time plaintiff did not appear in the bankruptcy action, and did not assert that the debt was that of the defendants. The plaintiff alleges in his complaint, filed February 17, 1965, that defendants were co-owners of the property and had financial interests therein, and had agreed to and did in fact advance funds for the improvements on the property. Plaintiff also alleges, that as owners of the property, defendants received the use and benefit of the materials furnished by the plaintiff and thus must pay to the plaintiff their value. In his deposition, however, plaintiff says that he "never did check into it to see whether the names [defendants' and intervenors'] were tied up together on the purchase of the land." The evidence that the land was owned solely by intervenors and that the only interest defendants had in the premises was a mortgage to secure a debt is uncontroverted. Concerning ownership of the land the plaintiff further testified: "Q. What ownership you claim that Warren and Gertrude Thornton [defendants] had in the land described in the complaint? A. All I can say about it is that Dale [intervenor] told me that they were in it together. "Q. Does this answer apply also to your allegations about the financial interests that the defendants might have had in the described property? A. I would say so." In regard to the alleged agreement between defendants and plaintiff, that defendants would pay for the materials, the plaintiff stated: "Q. All right. Now then, Dale [intervenor], in his dealings with you, represented that his father was going to make certain advances to help defray the costs of improvements. Is that right? A. Right. "Q. Did the father [defendant] ever make any such representations to you? A. I can't say that he did, no. "Q. Your dealings, then, with reference to the credit arrangements, the deliveries and the purchases here, were conducted with Dale Thornton [intervenor]? A. Dale Thornton. "Q. And when you are referring here in paragraph 2 [of the complaint], being the paragraph I read, to the agreements to advance funds, this is a matter in which you relied entirely upon the word of Dale Thornton that his father was backing him up or was, in one way or another interested *389 in the property? A. Well, of course, Dale at one time went to his father and made some arrangements to get me some money, told him he would, which he did. He didn't get me all he was supposed to, but he got me part of it. "Q. Again, Dale [plaintiff], what you have just related is a fact situation which in turn had been related to you by Dale Thornton. Isn't that true? A. Yes. "Q. You didn't directly make any financial arrangements with Mr. Warren Thornton [defendant] nor with his wife, Gertrude? A. No. "Q. In no stage of the proceedings here under complaint did they promise to pay on behalf of their son to you, did they? A. No. "Q. They didn't represent that they would make payment if you would make a delivery of certain merchandise? A. No. "Q. This was simply your acceptance of the word of your customer, Dale Thornton? A. Right." The defendant, Warren Thornton, in his deposition, testified that he made no agreement of any kind with the plaintiff. He said that he loaned money to his son, with a mortgage on the property in question as security, and that there was no agreement as to what his son was to do with the money. A mortgage creates no estate or interest in land. It is simply security for the performance of an act. Federal Land Bank of Spokane v. Green, 108 Mont. 56, 90 P.2d 489; Morrison v. Farmers' &amp; Traders' State Bank, 70 Mont. 146, 225 P. 123. On the basis of the depositions and exhibits it is clear that defendants did not own the property in question and that they made no agreement with plaintiff to pay for the materials he supplied. Rule 56(c), M.R.Civ.P., provides that summary judgment shall "be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On a motion for summary judgment the issues presented by the pleadings are not controlling. The court must consider the depositions, answers to interrogatories, admissions on file, oral testimony and exhibits presented, and other similar material to determine whether any of the issues are real and genuine. Hager v. Tandy, 146 Mont. 531, 410 P.2d 447. When the complaint is considered next to the plaintiff's own testimony, it is apparent that there has been no genuine factual issue presented. Plaintiff argues on appeal that had he been allowed to go to trial he would have presented further proof that defendants were co-owners of the property and made an agreement to pay for the materials. Notice was given and a hearing had before the motion for summary judgment was granted and again notice was given and a hearing had before plaintiff's motion to vacate judgment was denied. Nowhere in the record is there any hint of this further proof. When on the record there is no genuine issue as to any material fact before the court the burden is on the party opposing the motion for summary judgment to present facts of a material and substantial nature raising a genuine issue. The trial judge has no duty to anticipate possible proof that might be offered. To impose such a duty would be to demand clairvoyance not possessed by even a trial judge. Silloway v. Jorgenson, 146 Mont. 307, 406 P.2d 167; Naegeli v. Daniels, 145 Mont. 323, 400 P.2d 896. As to the requirement that there be no genuine issue as to any material fact the granting of the motion for summary judgment was correct. It remains to be shown that on the facts the defendants are entitled to judgment as a matter of law. The plaintiff testified as to the basis of his cause of action: "Q. Now, will you please tell me how you understand they [defendants] became obligated to pay this sum of money to you? *390 A. Well, the main thing is that they reaped the benefits from all them improvements. As far as I can see, the place is pretty much intact, and it was switched over to Mr. Thornton. They rented it and they have got the benefit out of it, are using it." Also, the plaintiff states in his appeal brief that the action was brought on a quantum meruit theory. Since it appears that plaintiff never had any dealings at all with defendants he must rely, as he does, on a contract implied in law or quasi-contract. The obligation in such a contract arises not from consent of the parties but from the law of natural justice and equity, and is based on the doctrine of unjust enrichment. Keith v. Kottas, 119 Mont. 98, 172 P.2d 306; French v. County of Lewis &amp; Clark, 87 Mont. 448, 288 P. 455. For a contract to be implied at law on the basis of unjust enrichment the plaintiff must show some element of misconduct or fault of some sort on the part of the defendant, or that he was in some way taken advantage of. See Butler v. Peters, 62 Mont. 381, 205 P. 247; and 17 C.J.S. Contracts § 6, p. 573. We find no element of misconduct shown on the part of defendants in this action. When defendants took title to the property, in partial repayment of the debt owed to them, the plaintiff had an apparently valid lien on the premises as security. The defendants are not to be blamed because this lien was allowed to lapse. The mere fact that defendants were benefited by plaintiff's materials is not of itself sufficient to require defendants to make restitution therefor. Restatement of the Law of Restitution, § 1(c), p. 13; 17 C.J.S. Contracts § 6, p. 573; Chandler v. Washington Toll Bridge Authority, 17 Wash. 2d 591, 137 P.2d 97. It appears that plaintiff had a contract with intervenors to supply building materials and supplies. He delivered on credit. He cannot now collect from intervenors as the debt is barred in bankruptcy. He received notice of the petition in bankruptcy but ignored it. Plaintiff also had a remedy against the premises where his goods were used. He has allowed this to lapse. Like the trial court we can see no reason in law or equity why plaintiff should be allowed to recover on a judgment in personam against defendants who now own the land. Having given careful consideration to the entire case, we hold that the judgment of the lower court was correct and it is affirmed. JAMES T. HARRISON, C. J., and HASWELL, CASTLE and ADAIR, JJ., concur.

October 10, 1967

2c78eefa-a083-4882-8951-f3c0ef78cd61

Montana Power Company v. FERGUS ELECTRIC CO-OPERATIVE

425 P.2d 329

11177

Montana

Montana Supreme Court

425 P.2d 329 (1967) THE MONTANA POWER COMPANY, a Montana Corporation, Plaintiff and Respondent, v. FERGUS ELECTRIC CO-OPERATIVE et al., Defendants and Appellants. No. 11177. Supreme Court of Montana. Submitted January 11, 1967. Argued March 21, 1967. *330 J.E. McKenna, Lewistown, Hoyt &amp; Bottomly, Great Falls, Richard V. Bottomly (argued), Great Falls, for appellants. James C. Wilkins, Jr. (appeared), Lewistown, William Coldiron and Robert D. Corette (appeared), Butte, John C. Hauck (argued), Butte, for respondent. JAMES T. HARRISON, Chief Justice. This is an appeal from a judgment which restrains and enjoins the defendants from supplying electric current or service to the property of the Peavey Company at Lewistown, Montana. The plaintiff-respondent is the Montana Power Company, a Montana corporation, and will be referred to as the Company. The defendants-appellants are the Fergus Electric Co-operative, Inc., a non-profit, membership corporation organized under the laws of Montana, and its manager, C.W. Rader, and will be referred to as the Co-operative. The issue presented by this appeal is whether electric current and service was available to the Peavey Company property from existing facilities and plants of the Company. This action was tried to the district court, sitting without a jury, on an agreed statement of facts. Included in this statement of facts was a map of the area in which both parties sought to provide electric service. This map was marked Exhibit A. In order that a more meaningful discussion of this case might be accomplished, we have taken portions of Exhibit A and reproduced them. *331 *332 In the reproducing process we have not been able to reproduce the color used in the exhibit. Thus, an explanation of the LEGEND must be made. As the LEGEND indicates, there are only two co-operative lines shown on the exhibit. They are a 12.5 KV Distribution Line-3φ and a 7.2φ KV Distribution Line-1φ . The 12.5 KV Distribution Line-3φ is the line running into Miller Slaughter House. The 7.2 KV Distribution Line-1φ is the line which joins the 12.5 KV Line at a point just north of the Miller Slaughter House and runs approximately parallel to State Highway No. 19 and branches just past the point at which it crosses the C.M. St. P. &amp; P.R.R. Despite the loss of the color, the LEGEND is accurate if one keeps in mind the explanation just given. Although the reproduction of Exhibit A is not complete, it adequately represents the area concerned, and we will refer to the reproduction simply as Exhibit A. In September 1965, the Peavey Company acquired a tract of land about 1½ miles from Lewistown, as shown on Exhibit A, as a site for the construction of a commercial grain elevator, feed mixing plant, and store. The Peavey Company would require single-phase electric service during the construction of its facilities and three-phase electric service for the operation of its business. In September of 1965, as shown by Exhibit A, the company had three-phase electric lines on three sides of the general area; a line constructed in 1912 on the south edge of the quarter-section, some 2,000 feet from the Peavey Company property; a line acquired in 1958 on the east side of the quarter-section; and a line constructed prior to 1929 about one mile to the west; of the Peavey Company property. The Company was serving customers in the area. The Co-operative's electric lines at that time, as shown by Exhibit A, consisted of a single-phase line which was across the railroad tracks and highway from the Peavey Company property. There was a service pole located 210 feet from the Peavey Company property from which pole a line extension could be run. The Co-operative's nearest source of three-phase service was located near the Miller Slaughter House, about one mile from the Peavey Company property. When the Peavey Company announced its construction plans, both the Company and the Co-operative offered to supply the required electric service. On December 8, 1965, the Company commenced construction of a three-phase line, as shown by Exhibit A, to the Peavey Company property. This line extends a distance of some 2,062 feet and was completed on December 17, 1965. On December 16, 1965, the Co-operative began construction of a line to the Peavey Company property. On December 20, 1965, the Company began this legal action and obtained a temporary restraining order from the district court. The Co-operative was served with the necessary legal papers that same morning. The question as to which party had the legal right to serve the property of the Peavey Company was now before the district court. Section 14-502, R.C.M. 1947, is relevant to the decision of this case and reads in part: "Cooperative, non-profit, membership corporations may be organized under this act for the following purposes: "(a) For the purpose of supplying electric energy and promoting and extending the use thereof in rural areas, in which electrical current and services are not otherwise available, from existing facilities and plants; * * *." This section has been interpreted by this Court in prior decisions. In Montana Power Company v. Park Electric Co-op., 140 Mont. 293, 300, 371 P.2d 1, 5, we commented as follows: "It is observed that Montana's statute, section 14-502 is more restrictive than any similar statute in other states. It spells out the limits of the Co-operative service, restricting it to rural areas and where service *333 is not otherwise available from existing facilities and plants. The Legislature has used restrictive language. The public policy declared is one for the Legislature and not for this court." Thus, under section 14-502, the Co-operative could not legally serve the Peavey Company property unless there was no service available from existing facilities and plants. The Company provided the Peavey Company property with the required electric service by the construction of a line some 2,062 feet in length. For the Co-operative to provide the requisite three-phase service, construction of more than one mile would be necessary. The Court is aware that the co-operative's single-phase line could have been utilized to provide the three-phase service by making some additions to the existing poles, but the fact remains that these alterations would span a distance of more than one mile. We are not establishing distance as the only criteria in determining whether electric service is available from existing facilities and plants. In this case, it is an important fact, but we realize there may be other situations in which it will not be the determining factor. A careful study of Exhibit A reveals that the Company was serving other customers in the same quarter-section in which the Peavey Company property is located and in the quarter section immediately to the west of the Peavey Company property. Taking all the factors into consideration, that is, the type of existing Company facilities surrounding the Peavey Company property, the existence of other Company customers in the immediate area, the distance each party would have to extend its service to supply the Peavey Company property, we come to the same conclusion as the district court that electric service was available to the Peavey Company property from existing facilities and plants of the Company. The Co-operative was beyond the limits defined by the Legislature in section 14-502, and the district court was correct in its judgment restraining the Co-operative from providing electric service to the Peavey Company. The Co-operative contends that the Company was not entitled to injunctive relief since the Company was allegedly in violation of Railroad and Public Service Commission Schedule LE-50 when it constructed its line to the Peavey Company property. The Co-operative takes the position that Schedule LE-50 limits free extension by the Company to 800 feet for three-phase service to a general service customer such as the Peavey Company and requires a customer to pay for all costs of line extension beyond 800 feet. It is admitted that the Company constructed the three-phase service to the Peavey Company property without cost to the Peavey Company and that such construction covered more than 800 feet. However, the Company meets the contention of the Co-operative by stating that Schedule LE-50 establishes a minimum distance that the Company MUST make free construction and does not limit the length of free construction that the Company CAN make if the customer is financially worthwhile from the Company's standpoint. The Company further contends that this is the manner in which the Railroad and Public Service Commission interprets the Schedule. Thus, the Co-operative alleges violation of Schedule LE-50, and the Company denies it. If the Co-operative has been injured by this alleged violation, it should properly present its complaint to the Railroad and Public Service Commission. Therefore, we find no merit in this contention. The remaining issues presented by the Co-operative have either been previously decided adversely to the Co-operative point of view by its own admission, or they have no place in this case on the basis of the facts presented in the agreed statement of facts. We have carefully considered each of these issues and find them all without merit. The judgment appealed from is affirmed. ADAIR, DOYLE and CASTLES JJ., concur. *334 JOHN CONWAY HARRISON, Justice. I concur in part and dissent in part. Mr. Justice Freebourn, speaking for a unanimous court in the case of Sheridan County Electric Co-op, Inc. v. Montana-Dakota Utilities Co., 128 Mont. 84, 270 P.2d 742, said in construing the Rural Electric Cooperative Act, sections 14-501 to 14-531, R.C.M. 1947, to determine whether or not the REA had exclusive rights in rural areas to provide electrical energy: "Under the provisions of this Act the plaintiff has a right to provide electric energy to the designated rural areas. Nowhere in said Act, however, can one find anything which, by express words or by implication, indicates that the Legislature intended to give an exclusive right to plaintiff to furnish electric energy in such rural districts. To the contrary, the plain wording of R.C.M. 1947, § 14-503, indicates the opposite intention and limits the right of plaintiff to provide electric energy, in such rural areas, to certain users, § 14-503 providing: `A cooperative shall have power: * * * (d) To generate, manufacture, purchase, acquire, and transmit electric energy, and to distribute, sell, supply and dispose of electric energy in rural areas to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten per centum (10%) of the number of its members. "Had our lawmakers intended that co-operatives should have the exclusive right to furnish electric energy in such rural areas, and thus prevent competition by other authorized electric public utility, they should have used clear and apt words to so declare. Certainly, no such far reaching right can be left to implication or inference. * * * "* * * It is also a well-known rule of construction that so long as the language of the statute or ordinance is plain and unambiguous, it is not subject to interpretation or open to construction, but must be accepted and enforced as written." We have carefully, for some twenty years followed the dictate of this opinion, which in its broadest sense does not allow an REA co-op to compete in a city, where the utility has a franchise to provide electric energy, but does allow such public utility to compete with REA co-ops in rural areas where the public facilities are available. There has developed in the past few years, with the urbanization of this state, another class of cases where co-op facilities and public utility facilities compete due to the expanding of the city area into what was once clearly a rural area serviced by REA. Though these problem conditions have been obvious for some five years and this court has had to rule on two such cases the legislature has so far failed to provide legislative guidance to meet the problem. Montana Power Co. v. Vigilante Electric Co-op, 143 Mont. 119, 387 P.2d 718; Montana Power Co. v. Park Electric Co-operative, 140 Mont. 293, 371 P.2d 1. This court pointed out in the Park Electric case, supra, that "The public policy declared" by the Legislature fixing the limits of co-operative electric service "is one for the Legislature and not for this court." However, concerning the facts presented in this case I view them differently than the majority. As has been pointed out the Peavey Company was located a mile and a half from Lewistown, in an area serviced both by the REA and the Montana Power Company. Both wanted to provide the service to this new plant so both entered into negotiations for the business. At this point, as I understand the law, they legally could compete for the business. On December 6, 1965, the appellant alleges that the Peavey Company chose the REA and that in addition they joined the cooperative as a member. While the respondent public utility denies this, alleging that the membership card was not delivered until a later date, the fact remains clear that the Peavey Company did join at sometime and a reasonable assumption can be made that they joined when appellant alleges in order to benefit from the rates offered. Too, the appellants' brief indicates that upon learning this fact the public utility rushed to completion its *335 line finishing on December 20th at which time it filed its restraining order preventing the REA from completing its line into the plant to provide Peavey with electric service. Viewing these facts, and they do not appear to be seriously controverted by the public utility we have a situation on December 20, 1965, where the Peavey Company who was either a member of the Co-op or who had applied for membership but not in possession of a membership card being denied service from the Co-op. Even more seriously do we have what appears to me to be the reverse of the Park County Electric Co-op case, supra. For these reasons I disagree with the fact-holding of the majority in this case.

March 21, 1967

43b68ae7-9c26-4309-9e4c-64192372b57f

State Ex Rel. Nepstad v. Danielson

427 P.2d 689

11139

Montana

Montana Supreme Court

427 P.2d 689 (1967) STATE of Montana ex rel. James NEPSTAD, Petitioner and Respondent, v. Russell L. DANIELSON, C.L. Duffy and Roy G. Riley, the Sheriff of Big Horn County, Montana, Respondents and Appellants. No. 11139. Supreme Court of Montana. Submitted April 11, 1967. Decided May 12, 1967. *690 Forrest H. Anderson, Atty. Gen., Helena, Robert H. Wilson and Kenneth R. Neill, Hardin, Chadwick Smith, Sp. Asst. Atty. Gen. (argued), Helena, for appellants. Lee Overfelt (argued), Billings, for respondent. DOYLE, Justice. This is an appeal from an order granting a writ of habeas corpus. James Nepstad a non-Indian was arrested and charged with violating section 26-307, R.C.M. 1947, by killing two bull elk on the Crow Indian Reservation during the closed season. The accused petitioned the district court of the thirteenth judicial district for a writ of habeas corpus on the theory that the State of Montana was *691 without jurisdiction in this matter because the elk were killed on a Crow Indian Reservation located in southeastern Montana. The district court agreed with the petitioner and an order was entered April 12, 1966, granting the writ of habeas corpus releasing him from the custody of the Big Horn County Sheriff. The order contained the following statement "* * * It is elementary that all Indian lands within the State are under the absolute jurisdiction and control of the United States. (See the Enabling Act of Montana.) In any event, the Congress, by enacting the statute in question (Title 18, § 1165) on July 12, 1960, following the act of our Legislature in 1957, seems clearly to have pre-empted the field and left the jurisdiction to punish the petitioner, if he be guilty of any crime, in the courts of the United States * * *." It is well-settled that the United States Congress may exercise its powers to circumscribe the exercise of state police power by virtue of the Supremacy Clause of the United States Constitution. U.S.Const., Art. VI, Clause 2; Morris v. Jones, 329 U.S. 545, 91 L. Ed. 488, 67 S. Ct. 451, 168 A.L.R. 656. A state statute may be effectively "pre-empted" by an act of Congress directly inconsistent with the state statute or by a clear expression of an intention to exclusively occupy a limited field encompassing the state statute. Savage v. Jones, 225 U.S. 501, 32 S. Ct. 715, 56 L. Ed. 1182; Schwartz v. State of Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231. Regulation of elk hunting within the borders of the State of Montana is clearly a proper exercise of the state's police power. Van Camp Sea Food Co. v. Department of Natural Resources of the State of California, 9 Cir., 30 F.2d 111, and cases cited; State v. Rathbone, 110 Mont. 225, 100 P.2d 86. Section 26-104, subd. (15), R.C.M. 1947, authorizes the Fish and Game Commission to exercise the state's power with respect to setting seasons and fixing bag limits. Section 26-307, subd. (3), R.C.M. 1947, provides that it is a misdemeanor to hunt game animals during a closed season. The first question presented in this appeal is whether Congress has pre-empted all state regulation of fish and game on Indian reservations by enacting conflicting legislation. Section 1165 of Title 18, United States Code was the only federal statute cited as inconsistent and reads as follows: "Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited." P.L. 86-634, § 2, 74 Stat. 469. It is significant to note that section 1165 does not directly prohibit hunting and fishing but makes the act of going upon the Indian reservation a violation if done for the purpose of hunting or fishing. Section 1165 expressly permits hunting and fishing on Indian reservations without additional federal regulation if proper permission or authorization is given for the entry. Therefore, section 1165 must be considered to be a statute providing a penalty for trespass to an Indian reservation and not an attempt by Congress to enter the field of fish and game regulation. This construction is fortified by the section preceding section 1165 wherein a penalty is provided for the destruction of boundary signs erected by Indian tribes to give notice that hunting, trapping, and fishing on the reservation is not permitted without lawful authority or permission. Title 18, § 1164 U.S.C. We hold that a statute which provides a penalty for trespass to the possessory rights of reservation *692 Indians does not conflict with fish and game regulation by the State of Montana. Nothing has been advanced to this court to show that Congress has expressed an intention to occupy the field of fish and game management on Indian reservations, nor would we concede that it could. A contrary general policy was noted in Organized Village of Kake v. Egan, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573. In the Kake case the United States Supreme Court demonstrated by historical discussion a continuing tendency to relax federal regulation over Indian affairs by permitting more tribal self-government. A concurrent increase of the influence of state law on Indian reservations was also noted. The fact that it is possible to violate section 1165 and Montana fish and game regulations by the same act or acts does not require the conclusion that there is a conflict between state and federal law. It has long been recognized that under our system of dual sovereignty a single act may constitutionally constitute a crime against both sovereigns. Bartkus v. People of State of Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684; Abbate v. U.S., 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729. Since Congress has not acted to exclude all state regulation of fish and game on Indian reservations the only remaining question is whether the state's regulatory power extends to a person who is not a tribal Indian hunting upon the reservation. This question is a subdivision of the larger question of whether the police power of the state may be extended to persons on Indian reservations who are not tribal Indians. In this connection respondent Nepstad contends in his brief that the State of Montana is precluded from exercising any regulatory power over persons on Indian reservations by section 4, second part, of its own Enabling Act which reads as follows: "Second. That the people inhabiting said proposed (State of Montana) do agree and declare that they forever disclaim all right and title * * * to all lands lying within the said limits owned or held by any Indian or Indian tribes; * * * and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States * * *." The effect of the above-quoted portion of the Montana Enabling Act was considered in Draper v. United States, 164 U.S. 240, 17 S. Ct. 107, 41 L. Ed. 419, upon an appeal from a conviction of murder alleged to have been committed on an Indian reservation situated within the boundaries of the State of Montana. The Draper case followed an earlier U.S. Supreme Court decision by holding that the retention of "absolute jurisdiction and control" over Indian lands did not deprive the State of Montana of jurisdiction over crimes committed on reservations by other than Indians or against Indians. In Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251, the United States Supreme Court declared that absent governing acts of Congress the test of the applicability of state law on Indian reservations is whether such application would interfere with reservation self-government. The most recent statement on this question appears in the Kake Village case, supra, at 369 U.S. 71, at 82 S.Ct. 568: "The Senate amendment was designed simply to make clear what an examination of past statutes and decisions makes clear also: that the words `absolute jurisdiction and control' are not intended to oust the State completely from regulation of Indian `property (including fishing rights)'. `Absolute' in § 4 carried the gloss of its predecessor statutes, meaning undiminished, not exclusive." From the foregoing we conclude that the State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with respect to persons who are not tribal Indians unless precluded from doing so by an act of Congress or unless *693 such enforcement would interfere with self-government on the reservation. We have already discussed the absence of prohibiting or conflicting acts of Congress. Further, no convincing argument has been made to show how enforcement of state hunting and fishing regulations against a non-Indian would in any manner interfere with self-government of the reservation. Therefore, we hold that the district court erred when it decided that state courts have no jurisdiction over non-Indians, particularly the respondent. The order granting the writ is reversed. JAMES T. HARRISON, C. J. and ADAIR, CASTLES and JOHN C. HARRISON, JJ., concur.

May 12, 1967

6279c9de-2ac2-4593-9589-2045118c8c7e

Grey v. Silver Bow County

425 P.2d 819

11150

Montana

Montana Supreme Court

425 P.2d 819 (1967) Glenn W. GREY, Plaintiff and Appellant v. SILVER BOW COUNTY, a body politic, Defendant and Respondent. No. 11150. Supreme Court of Montana. Submitted February 10, 1967. Decided March 15, 1967. Rehearing Denied April 24, 1967. H.L. McChesney (argued), Missoula, for appellant. Poore, Poore, McKenzie &amp; Roth, Butte, Allen R. McKenzie (argued), Butte, for respondent. JAMES T. HARRISON, Chief Justice. This is an appeal by the plaintiff from a summary judgment entered in favor of defendant. The summary judgment dismissed plaintiff's action upon the grounds that it had not been filed within the statute of limitations. The plaintiff-appellant is Glenn W. Grey and will be referred to as plaintiff. The defendant-respondent is Silver Bow County and will be referred to as defendant. The plaintiff makes three specifications of error which raise the issue of whether the district court was correct in holding that plaintiff's action was barred by the statute of limitations. The record before this court reveals the following facts: On August 23, 1961, plaintiff underwent surgery to his left hip at the Silver Bow General Hospital, a hospital owned, operated, and maintained by defendant and situated in Butte, Montana. Plaintiff's surgery was necessitated by a fracture which had occurred in a mine accident in Philipsburg, Montana. Following surgery, a hip length cast was applied to plaintiff's leg. The cast covered the site of the surgery. Plaintiff was discharged from the Silver Bow General Hospital *820 on September 21, 1961. He returned to his home in Philipsburg. On October 18, 1961, plaintiff sought medical treatment from Dr. Cunningham, a Philipsburg physician, and Dr. Cunningham cut a window in the cast at the site of the surgical intervention. Dr. Cunningham found an infection which was subsequently diagnosed as staphylococcus infection. Plaintiff's complaint was filed on October 19, 1964. After pre-trial discovery procedures had been employed by both sides, plaintiff filed an amended complaint on June 9, 1965, which alleged that the infection was introduced into plaintiff's body because proper sterile techniques were not employed by defendant's hospital; that the infection was introduced on August 23, 1961, the day of the surgery; and that the infection was not discovered until October 18, 1961. In granting the motion for summary judgment made by defendant, the district court found that plaintiff did not know of the infection until October 18, 1961. The district court was of the further opinion that the action could have been filed at any time within three years of plaintiff's discharge from the hospital. However, the action was not so filed but was filed within three years of the date plaintiff discovered the infection. The district court held that it was barred by the statute of limitations. The plaintiff contends that the statute of limitations should begin to run in this case from the date plaintiff discovered the infection, namely, October 18, 1961, while, on the other hand, defendant contends the statute of limitations should begin to run from the date of the alleged negligence, namely, August 23, 1961. In substance, plaintiff asks this court to apply the so called "discovery doctrine" to the facts of this case. The "discovery doctrine" has been thoroughly explained, praised, and criticized in opinions of courts of other jurisdictions. In Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224, 232, the Supreme Court of Idaho made a thorough discussion of the "discovery doctrine" and states the doctrine in this manner: "Where a foreign object is negligently left in a patient's body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body." The Billings case, supra, was cited with approval in Johnson v. St. Patrick's Hospital, 148 Mont. 125, 417 P.2d 469, a case in which a surgical sponge left in Mr. Johnson's hip was not discovered for nearly seven years. We recognize that the assertion can be made that there is a distinct factual difference between leaving a sponge in a patient's body by a surgeon and introducing an infection into a patient's body due to a hospital's failure to employ proper sterile techniques during an operation. But we believe this distinction fails to recognize the real similarity between the two acts. That similarity is the fact that the patient does not know of his own condition be it introducing the infection or leaving the sponge until some time later when he learns of, or in the exercise of reasonable care and diligence he should have learned of it. Defendant argues that the "discovery doctrine" is usually applied only in cases where plaintiff relies on the theory of res ipsa loquitur. Defendant then argues that the instant case will not be a res ipsa loquitur case. This contention may possibly be correct. It is not necessary for us to determine the validity of that contention at this stage of the case. However, the district court file is full of interrogatories and answers made and requested by both sides. Defendant did not object to any question on the ground that the delay had made the information unavailable. The application of the "discovery doctrine" in this case extends the statute of limitations about 57 days (from August 23, 1964, to October 19, 1964) beyond the time *821 it would expire if we were to accept defendant's contention that the statute of limitations begins to run from the date of the alleged negligence. At least one reason for the statute of limitations is to protect defendant from having to defend against claims that are stale. Likewise, an often expressed criticism of the "discovery doctrine" is that it compels defendant to undertake a defense when witnesses and information have disappeared due to the passage of time. However, we doubt that the defendant in this case could seriously contend that the defense was prejudiced by a 57 day extension of what would be the usual statute of limitations. The "discovery doctrine" as set forth in the Billings case, supra, was analyzed by the United States Court of Appeals, Ninth Circuit, in Owens v. White, 342 F.2d 817, 820, and reasonable limitations were placed on the "discovery doctrine." The Federal court made the following observations: "Consistent with the prominence given to the policy underlying statutes of limitations in Billings, supra, we believe the Idaho court would temper application of the discovery doctrine by hedging it with equitable considerations. To illustrate, courts in other states that have applied the discovery doctrine to non-foreign object cases have emphasized factors such as the `continuing relationship' between doctor and patient as a reason for applying the rule. [Citing cases.] This suggests in our estimation, that the discovery doctrine is itself subject to some restraint as the time from the occurrence of the malpractice grows greater. In such circumstances, the considerations of fairness to the defendant underlying statutes of limitation become more insistent, while the plaintiff's appeals to equity implicit in the discovery doctrine become less so. We believe the Idaho courts would apply a concept akin to the equitable doctrine of laches to limit the discovery rule, a rule which itself has its genesis in equity. Thus, the suit of a plaintiff who is reasonably diligent may be barred if the defendant shows undue prejudice because of an extreme lapse of time between the commission of the wrongful act and the commencement of suit. To so conclude strikes us as a reasonable accommodation between the competing considerations noted in Billings of giving full scope to the statute of limitations on the one hand and according a reasonable measure of justice to the plaintiff on the other." Keeping in mind the limitations placed upon the "discovery doctrine" by the Federal Court in the Owens case, supra, we believe that its application to the facts presented in this appeal will not work a hardship on the defendant. However, this holding should not be construed as an encouragement to future plaintiffs to delay filing of their actions if they can be filed within the usual statute of limitations. The "discovery doctrine" has a very narrow field of application and can only be successfully and fairly applied if it retains the flexibility suggested in the Owens case, supra. Finally, defendant raises the "question of whether October 19, 1964, is within three years of October 18, 1961, in any event." As previously noted, the plaintiff's complaint was not filed until October 19, 1964, three years and one day after the discovery of the infection, but October 18, 1964, was a Sunday. However, defendant makes no strenuous objection to plaintiff's position that the complaint was filed in a timely manner. Defendant's brief states, "(W)e concede his [plaintiff's] position may be correct under Kelly vs. Independent Publishing Co., 45 Mont. 127, 122 P. 735 [38 L.R.A.,N.S., 1160]." Reference to Rule 6 (a) M.R.Civ.P. supports plaintiff's position. Rule 6(a) reads in part: "In computing any period of time prescribed * * * by any applicable statute, the day of the act * * * after which the designated period of time begins to run is not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in *822 which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday." The district court erred in finding that the statute of limitations had run on plaintiff's action. The judgment appealed from is reversed. ADAIR, JOHN CONWAY HARRISON and CASTLES, JJ., concur. DOYLE, Justice (specially concurring). Having dissented in Johnson v. St. Patrick's Hospital, 148 Mont. 125, 417 P.2d 469, and stating my reasons for such dissent, I now concur in this cause by reason of the doctrine of stare decisis.

March 15, 1967

6f05862a-b13c-4dc1-8a66-328d19e20370

McLane v. Farmers Ins. Exchange

432 P.2d 98

11248

Montana

Montana Supreme Court

432 P.2d 98 (1967) Dennis McLANE, Plaintiff and Respondent, v. FARMERS INSURANCE EXCHANGE, Defendant and Appellant. No. 11248. Supreme Court of Montana. Submitted June 22, 1967. Decided August 24, 1967. Rehearing Denied October 18, 1967. *99 Poore, Poore, McKenzie &amp; Roth, Allen R. McKenzie (argued), Butte, for appellant. McKeon &amp; Brolin, John L. McKeon (argued), Anaconda, for respondent. JAMES T. HARRISON, Chief Justice. This is an appeal by the defendant from a judgment entered in the District Court of Deer Lodge County in favor of plaintiff in an action seeking recovery on an insurance policy. The plaintiff had previously recovered a judgment against one Gerald Roberts as a result of an automobile collision caused by Roberts' negligence. Roberts had been issued an automobile liability insurance policy by the defendant prior to the collision. This suit was brought to recover on that insurance contract. The policy was issued on May 22, 1964, for a period of six months. On June 7, 1964, Roberts was involved in the collision with the plaintiff. By at least the 17th of that month defendant acquired information that Roberts had not answered all the questions on the application for insurance truthfully. The defendant continued to accept premium payments from Roberts on June 18 and 23, 1964. Prior to June 30, 1964, the defendant paid other claims arising from the same accident. A suit against Roberts was brought by the plaintiff on June 24, 1964. On July 10, 1964, the defendant sent notice to Roberts declaring the insurance policy rescinded and void from the beginning because of the misrepresentations. On July 22, 1964, plaintiff was granted judgment against Roberts and the next day brought this action against defendant to recover the amount of the judgment reduced to the amount of the insurance policy. The defendant counterclaimed against Roberts and on February 4, 1966, received a default judgment against him. The District Court gave judgment to the plaintiff stating the defendant could have cancelled under the terms of the policy or brought an action to rescind and since it did neither plaintiff could recover. On this appeal defendant contends that the insurance policy was voidable because of the misrepresentations and that this would negate any coverage to Roberts from its inception. (Citing 89 A.L.R.2d 1027.) Resolving that issue in favor of defendant, however, is not determinative in this case, since if the policy was voidable as defendant contends then another issue arises, that being: Was the conduct of the defendant after notice, and prior to the attempted rescission, such that it would amount to an implied waiver of its right to rescind? If so, the policy was in effect at the time of the accident and plaintiff could recover. The defendant would have to meet the requirements of R.C.M. 1947, §§ 40-3713 and 13-905 to rescind. The defendant had a right to a reasonable time in which to investigate (Cannon v. Travelers Indemnity Co., 314 F.2d 657 (C.C.A. 8, 1963); Hesselberg v. Aetna Life Ins. Co., 75 F.2d 490 (C.C.A. 8, 1935) and upon discovering the facts entitling him to rescind he was required to act promptly to rescind. (R.C.M. 1947, § 13-905, subd. 1; Fontaine v. Lyng, 61 Mont. 590, 202 P. 1112; Restatement, Contracts, § 483; Williston on Contracts, § 1525). Defendant learned at least by June 17, 1964, that it might have a right to rescind because of the misrepresentations. After acquiring this knowledge it continued to act in a manner inconsistent with an election to rescind. It accepted premium payments and paid other claims arising out of the same accident. It was not until after the foregoing and the filing of plaintiff's suit against Roberts that the record shows any action on the part of the defendant to further investigate the misrepresentations or rescind. There was more than a mere passage of time. The defendant's affirmative acts were sufficient to show an implied waiver and thus the length of time between discovery and attempted recission is not material in this case. The defendant did *100 not meet the requirement that he promptly rescind and thus has waived his right to void the policy ab initio. Defendant has pointed out the case of Travelers Indemnity Company v. Harris, 216 F. Supp. 420 (U.S.D.C.Mo.1961), in which a delay of 40 to 42 days after notice of the misrepresentation before rescission was found not to be a waiver. That case is distinguished from the present case in that the only affirmative act showing waiver was the commencement of the investigation of the accident, and the court found that was terminated within a reasonable time after notice. Also cited by defendant is the case of Keys v. Pace, 358 Mich. 74, 99 N.W.2d 547, 553 (1959). That case is distinguished from the case at bar because in that case the insurance company did not have actual notice of the misrepresentations until after it had commenced defending the suit. The court in that case said "In fact, when actual knowledge was gained, the insurer was not slow to act, cancelling the policy ab initio and withdrawing its legal representation of the insured." The defendant contends that the plaintiff can have no more rights in the policy than Roberts. (Fireman's Fund Indemnity Co. v. Kennedy, 97 F.2d 882 (C.C.A. 9, 1938)). Consequently, the defendant contends, its default judgment against Roberts determines the rights of the plaintiff to recover on the policy. However, the judgment against Roberts cannot affect the rights of the plaintiff for his rights vested prior to the attempted rescission. (45 C.J.S., Insurance, § 453) They vested either at the time of the accident or at the time of the implied waiver of the right to rescind. Exactly which of the two possible times this court need not decide. In either case Roberts and the defendant cannot do anything either in concert or through the failure of Roberts to defend to affect the rights of plaintiff after they vested. 45 C.J.S., Insurance, § 455a (2). Once there has been a waiver it could not be revoked as to the plaintiff without his consent. 45 C.J.S., Insurance, § 678. There can be a valid waiver as to the plaintiff even though Roberts has not defended his own possible rights. 45 C.J.S., Insurance, § 677. The determination that the policy was effective until notice of rescission determines plaintiff's rights to recover. "Cancellation of an insurance policy for any cause whatsoever is always a serious matter, both for the insured and for the insurer * * *. Unless convinced that the trial court reached an impermissible conclusion thereon, this court will not reverse." Cannon v. Travelers Indemnity Co., 314 F.2d 657. In Empire Fire and Marine Ins. Co. v. Goodman, 147 Mont. 396, 412 P.2d 569, the insurer brought a declaratory judgment action against its insured, and while our decision did not turn upon that point we did make reference to the fact that the district court, under its view of the law, had found that the plaintiff had alleged facts which in themselves denied the plaintiff the relief that it sought. In the instant cause the facts appearing in this record deny appellant the relief it seeks. The judgment is affirmed. MR. JUSTICES ADAIR, CASTLES and JOHN C. HARRISON concur.

August 24, 1967

ad6a58d5-a82f-4a22-9e39-c98bb6ab25ee

Hackley v. Waldorf-Hoerner Paper Co.

425 P.2d 712

11085

Montana

Montana Supreme Court

425 P.2d 712 (1967) Herbert M. HACKLEY, Plaintiff and Appellant, v. WALDORF-HOERNER PAPER PRODUCTS CO., Grover-Dimond Associates, Defendants and Respondents. No. 11085. Supreme Court of Montana. Submitted February 7, 1967. Decided March 23, 1967. *713 Lee A. Jordan (argued), Missoula, for appellant. Garlington, Lohn &amp; Robinson, Sherman V. Lohn (argued), Missoula, for respondents. JOHN C. HARRISON Justice. This is an appeal from a directed verdict given at the close of appellant's case for Grover-Dimond Associates and from a jury verdict for the Waldorf-Hoerner Paper Products Company. The appellant Hackley brought this action seeking damages for injuries sustained in a fall while working for the Bumstead-Woolford Company where he was employed as a steamfitter. The appellant *714 originally brought suit against three defendants with the third defendant, Hightower &amp; Lubrecht Construction Company, being taken out of the case at the end of plaintiff's case by a directed verdict. The respondent, Waldorf-Hoerner Paper Company in 1959 began an extensive expansion of its pulp mill located in Missoula County. Grover-Dimond Associates, an engineering architect firm, was employed by respondent to prepare plans and specifications for the new plant and to generally oversee the construction. The part of the plant expansion of import to this case concerns a building built to house No. 2 turbine. Throughout the construction program personnel from Grover-Dimond and from the respondents' home office were on the job site checking on the construction. Once the plans were drawn Grover-Dimond broke the job down into different categories, structural, mechanical, piping, etc., and then put these jobs out either on bids or in some cases on negotiated contracts. Each of the companies dealt with for the job received a purchase order which served as a contract, and during the years of the construction as many as 15 or 20 contractors were working on the project each as an independent contractor for its particular phase. Hightower &amp; Lubrecht Construction Co. did construction work which included the erection of a superstructure for the housing of the power plant. The work of this company was according to plans and specifications drawn by Grover-Dimond, and began in the fall of 1959 and completed early in 1960. At the time of the accident, July 25, 1960, the Hightower &amp; Lubrecht Company had some months before turned over the building to those who were to do the installation of the power plant. During the construction period it was routine for supervisory personnel of all the independent contractors on site to meet with several of Waldorf-Hoerner's officials to discuss job problems and to see to it that each contractor knew what was to be done during the next week. In this manner they were able to coordinate the work and also the respondents' officials were kept current on the construction progress. There was no testimony introduced that officials of respondent via this meeting exercised dominion over the various independent contractors on the job. Rather it was a method of coordination of the construction. The appellant had worked in the turbine pit for several days prior to the accident connecting pipes. The turbine pit was some 14 feet in depth with access only through two manholes at the opposite ends of the pit. In designing the pit, the Grover-Dimond Associates provided a steel rung ladder as a means of access which the testimony showed was for the use of maintenance personnel once the turbine was in operation. This means of access was designed so that the cover was flush with the floor with the 13 steps of the ladder beginning from the first step six inches from the floor at a rate of one step every 12 inches leaving the 13th step 19¾ inches from the top of the pit. The appellant and his fellow employees, who worked in the pit doing the various job necessary to install the turbine, used the ladder from which he fell as a means of access to and from their work. The appellant testified that during the day when he was injured that he had been up and down the ladder numerous times, and that when he was injured it was at quitting time. He describes the accident as follows: "A. Well, I was in the bottom of the pit, and the welder was out. It was around quitting time and he said `either let's break down or let's take up, one or the other,' which he meant to take the gauges off and roll the hose up and take them to the storeroom. That was company policy. Them things had to be locked up overnight in a storeroom. "Q. So what did you do? A. I started up this pit and when I got to the top, I reached over the ledge and there was a, [ledge] this was to pull myself up, to pull *715 myself against the ledge, and when I did my hands slipped and I went back through the pit on the concrete floor." From this fall the appellant suffered serious injuries. His feet including his heels were broken and he suffered a broken back. The respondent, Waldorf-Hoerner maintained throughout the case that each of the various contractors were independent general contractors and that with regard to the appellant this suit was simply an action by an employee of a third party (Bumstead-Woolford) against Waldorf-Hoerner, the owner of the premises, the landlord. The appellant contended throughout that Waldorf-Hoerner was in reality a general contractor who controlled the entire project and was responsible for the condition of the premises. During the course of the trial appellant tried to show that several of the officials of respondent, Waldorf-Hoerner, to-wit, Mattison &amp; Lodendorf, were on the job site at all times, that they exercised control over the various general contractors, in addition to the supervisory personnel of Grover-Dimond. Appellant produced testimony that three days prior to the accident the job steward of the Bumstead-Woolford employees protested the conditions in the pit, alleging an oily floor, lack of light, and the ladder in question, to Mr. Mattison, and that Mattison agreed to have the conditions fixed. On the day of the accident appellant's job steward made a complaint to a Mr. Lodendorf about the conditions, and that Lodendorf agreed to have the conditions fixed, and made more safe. The respondent introduced testimony to the effect that Mr. Mattison was on the job as a material expediter, and that Mr. Lodendorf was a combustion expert and on the job site to analyze fuel and the power problems of the system being installed. During the course of the trial, appellant unsuccessfully tried to introduce a pamphlet containing the standards of the American Standards Association to show that the ladder the appellant fell from was not built to the safety standards required by the pamphlet, too, that an effort was made to show that the ladder construction on the respondents' premises did not meet the minimum Safety Standards for the Construction Industry in Montana as set forth in our Industrial Accident Code, sections 41-1703, 41-1706, R.C.M. 1947. In addition, appellant tried to introduce evidence, which was denied, that respondent Waldorf-Hoerner immediately after the accident had side rails installed as a safety precaution alongside the ladder in question; in addition appellant was unsuccessful in his effort to introduce pictures taken some 13 days after the accident of the construction area where the accident occurred. The appellant sets forth eight issues for review, three of which he labels as major issues. They are: "1. Admissibility of the Minimum Safety Standards for the Construction Industry in Montana as promulgated by the I.A.B. pursuant to direct legislative authorization, and the Court's refusal to allow their use for ANY purpose. "2. Admissibility of the standards of the American Standards Association concerning fixed iron rung ladders, and the Court's refusal to allow their use for ANY purpose. "3. Correctness of the Court's action in denying plaintiff's motion for a directed verdict on the question of liability against the defendant Waldorf-Hoerner Paper Products Company. "4. Correctness of the Court's action in granting the motion for a directed verdict of Grover-Dimond Associates, the architectural and engineering firm which drew the blue prints and plans for the pit and ladder involved in this accident, and oversaw and checked the construction work as it progressed. "5. Correctness of the Court's action in refusing plaintiff's proof that it was Waldorf-Hoerner employees who actually repaired the ladder from which plaintiff fell, within hours after the accident. *716 "6. Correctness of the Court's action in refusing to admit plaintiff's pictures of the pit and ladder involved in this case taken 13 days after the accident. "7. Correctness of the Court's action in admitting defendants' pictures, taken 5 years after the accident, not of the accident scene, or anything similar thereto. "8. The Court erred in giving instructions on `assumption of risk'." Considering the ruling of the district court in refusing any testimony on the minimum Safety Standards for the Construction Industry, section 41-1702, R.C.M. 1947, we must first examine the purpose and the coverage of the statute. Such statute provides: "(a) Every employer shall furnish a place of employment which shall be safe for the employees therein and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such places of employment safe, and shall do every other thing reasonably necessary to protect the life and safety of such employees; "(b) Every employer and every owner of a place of employment, shall repair, and maintain the same as to render it safe. If [In] any civil suit or action brought against a landlord by an employee or by a member of the public for recovery of damages for injury or death the provisions of this section shall not be construed to apply or in any way increase or affect the present liability of said landlord." It should be noted that the section in the first instance is directed at every employer, and that employer's duty to provide a safe working place for his employees. A thorough and careful review of this record does not make Waldorf-Hoerner an employer of the injured appellant, rather, the evidence produced leaves but one conclusion and that was that the appellant was the employee of the Bumstead-Woolford Company which had a general contract on the project. We then look to subsection (b) to see if under its provisions a case can be made for appellant. This section speaks of "every employer" and "every owner of a place of employment," which under the facts in this case would make Waldorf-Hoerner a landlord. The limitation of this subsection of a "civil suit * * * by an employee or by a member of the public" against a landlord makes this an action by an employee of a third party against the owner of the premises, Waldorf-Hoerner. This is not to say that this court in a proper factual case will not allow the admittance of safety regulations. Under facts presented here we cannot hold the right to oversee that the work of the various independent contractors proceeds satisfactorily imposes on the respondent the duty to insure that the contractor's work is done in compliance with all the various safety codes. This court recently allowed the admittance of a safety code provision when we recognized the "Scaffolding Act," section 69-1401, R.C.M. 1947, as being properly considered by the jury. Pollard v. Todd, 148 Mont. ___, 171, 418 P.2d 869. With regard to the second alleged error, the refusal to allow the admission into evidence of the pamphlet standards published by the American Standards Association, we find that the district court properly found in this case that the evidence was inadmissible. While there are cases holding to the contrary McComish v. DeSoi, 42 N.J. 274, 200 A.2d 116, we believe the view to be the minority view is not as well reasoned as that of the majority of our sister states. The majority view is set forth in 75 A.L.R.2d 778, 780, and is: "The majority view is that evidence of codes or standards of safety issued by governmental bodies as advisory material, but not having the force of law, is not admissible on the issue of negligence * * *." In this case the question of whether the ladder was properly designed and installed is not difficult for the average juror to consider. It involved no difficulty to the *717 ordinary juror in determining the issue without special reference to the rules and regulations. Here too, there were numerous witnesses who testified that the ladder was not standard, not approved and unsafe. In addition the jury had before it throughout the trial a full-sized sketch of the ladder. At the most the evidence proposed would have been cumulative and as such admission would have been discretionary with the trial court. We find no merit to appellant's third issue concerning the court's failure to direct a verdict against the respondent. Bumstead-Woolford here in the fullest sense of the phrase is an independent contractor. Although Waldorf-Hoerner had supervisory personnel and specialists on the job site and brought the various contractors together each Friday to see that the work progressed these roles were not shown to be of sufficient supervisory character to negate our conclusion that Bumstead-Woolford was an independent contractor. Generally a landowner is not liable for injuries suffered by servants of an independent contractor. 57 C.J.S. Master and Servant § 600. The position of the appellant here is that of an invitee or a business visitor lawfully on the premises and this court in the case of Cassaday v. City of Billings, 135 Mont. 390, 340 P.2d 509, 510, summarized the law in Montana as follows: "It is well-established in Montana that a landowner is obligated toward an invitee to either use ordinary care to have the premises reasonably safe, or to warn the invitee `of any hidden or lurking danger therein'. Milasevich v. Fox Western Montana Theatre Corp., 118 Mont. 265, 270, 165 P.2d 195, 197, and see Restatement, Torts, Negligence, § 343. He is not an insurer against all accidents and injuries to such persons while there." See also Chichas v. Foley Brothers Grocery Co., 73 Mont. 575, 236 P. 361. While this state has not had to consider the matter there is an exception to the rule which arises when a landlord has retained control over the property on which work is being performed. The landlord then has the duty to use ordinary care, so that the premises will be reasonably safe for the independent contractor's servants. Dillingham v. Smith-Douglass Co., 261 F.2d 267, 269 (4th Cir.1958); 57 C.J.S. Master and Servant, § 603; 38 Am.Jur., Negligence, § 94. For the purposes of this case it must be concluded that Bumstead-Woolford Co. was an independent contractor and the disposition of the case is governed by the general rule, which under the present circumstances free a landowner from liabilities for injuries suffered by an independent contractor's servants, and not by the exception. On the fourth issue of granting the directed verdict for the Grover-Dimond Associates at the end of appellant's case, we find no error. Appellant relies upon an Illinois case against an architect firm where a school gym collapsed during a remodeling, due to the design being in violation of the law. Miller v. DeWitt, 59 Ill. App.2d 38, 208 N.E.2d 249. With this holding we have no argument, but in this case we are presented with an entirely different fact situation. Grover-Dimond's designed ladder did not collapse, nor did it fail to function for the purpose designed. Here all the alleged defects were open, obvious, and there was no concealment or trap of any kind. There being no showing of any latent defect or concealed danger in the design of the ladder the court properly directed a verdict for Grover-Dimond Associates. Inman v. Binghampton Housing Authority, 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895, 59 A.L.R.2d 1072 (1957). Appellant complains that the court erred in not allowing him to produce evidence that shortly after the accident the respondent had hand rails put up alongside the ladder as a safety measure. While recognizing that evidence of subsequent improvements cannot be introduced to show that the defendant was negligent, the appellant here attempted to introduce such *718 evidence for the purpose of showing Waldorf-Hoerner's dominion and control over the premises. Numerous efforts were made throughout the trial to get this evidence before the jury, bringing adverse rulings each time by the court. However, it should be noted that just at the end of the trial appellant successfully maneuvered to get the very evidence here complained of being excluded, into the record. We cannot see how he can now allege prejudice to his case. Such evidence, in a proper case, can be made admissible, but this is not such a case. May v. City of Anaconda, 26 Mont. 140, 66 P. 759; Cochran v. Harrison Memorial Hospital, 42 Wash. 2d 264, 254 P.2d 752. Issues six and seven are concerned with the court's refusal to not admit certain pictures and in allowing others to be admitted. We find no error in the court's rulings in these matters. This court has long followed the principle that the trial court has wide discretion in the admission of photographs. Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4; Gobel v. Rinio, 122 Mont. 235, 200 P.2d 700; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025. We have carefully reviewed all the matters desired to be covered by the photos refused and find the evidence fully described by witnesses and diagrams. Last but not least is appellant's contention that the court erred in giving instructions on "assumption of risk." While not directing our attention to any particular instruction we must point out that appellant begins his argument on this alleged error based upon an assumption we have long disposed of in this case, and that concerns specification of error No. 1, the refusal to admit the minimum safety standard in this case. We have no argument with the cases cited if they were applicable to the facts in this case, but they are not. We find that the district court included much of what appellant desired in covering this matter when the court adopted instructions offered by appellants which became court's instructions 23 and 24. It would appear to us that when read with court's instruction 21 A, the appellant was properly protected. The judgment and verdict of the district court is affirmed. JAMES T. HARRISON, C. J., and ADAIR, DOYLE and CASTLES JJ.

March 23, 1967

933184ef-fa12-41a9-a58b-12aacf8c3c62

Gessell v. Jones

427 P.2d 295

11261

Montana

Montana Supreme Court

427 P.2d 295 (1967) Elizabeth F. GESSELL, Plaintiff and Appellant, v. Raymond J. JONES, Defendant and Respondent. No. 11261. Supreme Court of Montana. Submitted April 13, 1967. Decided May 10, 1967. Tipp, Hoven &amp; Brault, Raymond W. Brault (argued), Missoula, for appellant. Lucas &amp; Jardine, Charles A. Jardine (argued), Miles City, for respondent. DOYLE, Justice. Action on a contract for the payment of child support. On May 9, 1959, Raymond J. Jones (hereinafter called Jones) filed a divorce action against Elizabeth F. Jones (now Gessell and hereinafter called Gessell) in the district court of Custer County, Montana. On September 30, 1959, the parties entered into a "separation and property agreement" wherein Jones agreed to pay Gessell the sum of $200 per month for the support of the three children of the marriage in *296 addition to the sum of $100 each August for the purchase of school clothing. A decree of divorce was granted October 14, 1959, providing that Jones should pay $200 per month for child support. In that action the divorce decree contained an express recognition of the agreement between the parties but "neither approved nor disapproved" of it. Jones petitioned the court April 18, 1961, for a modification of the decree to require payment of $140 per month for child support. On June 2, 1961, both parties stipulated through their respective counsel that the support payments should be reduced to $175 per month and the decree was so modified. A second modification was made July 3, 1964, after a hearing with both parties being represented by their respective counsel wherein the support payments were further reduced to $135 per month. On January 31, 1966, Gessell brought on action for $3,430.00 based on the claim that Jones owed her the difference between the sum of the support payments he had made under the various decrees and the sum of the payments required by the agreement. The district court decided that this action was barred by the doctrine of collateral estoppel raised by the previous modifications and for that reason entered an order granting Jones's motion for summary judgment under Rule 56(b), M.R.Civ.P. The single question determinative of this appeal is whether parties named in a divorce decree may enforce a prior contract for the support of minor children of the marriage when the court assuming jurisdiction to grant the divorce has subsequently decreed provisions for child support differing from those of the contract? The doctrine of collateral estoppel as applied by the district court to support its order of summary judgment provides the answer to this question. Section 21-138, R.C.M.1947, provides: "In action for divorce the court or judge may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same." (Emphasis supplied.) When the provisions for the support of the children are made the subject to a separation agreement between the parents, such agreement may be binding upon the parties but it does not bind the child or the court having jurisdiction over the divorce proceeding. Kane v. Kane, 53 Mont. 519, 165 P. 457; State ex rel. Floch v. District Court, 107 Mont. 185, 81 P.2d 692. Therefore, the district court was free to modify the original decree, as it did, to provide for child support payments which were lower than those named in the agreement. The effect of modifying a divorce decree to provide child support payments differing from prior contractual provisions is to create an estoppel to the enforcement of such contractual child support provisions. "Collateral estoppel" as raised by this case may be considered as a branch of the doctrine of res judicata but is distinguishable from the bar to litigation normally called res judicata. The distinction is that res judicata bars the same parties from relitigating the same cause of action while collateral estoppel bars the same parties from relitigating issues which were decided with respect to a different cause of action. See Cromwell v. County of Sac, 94 U.S. 351, 24 L. Ed. 195, for a frequently cited discussion of this distinction. The bar that arises from collateral estoppel extends to all questions essential to the judgment and actually determined by a prior valid judgment. Nadeau v. Texas Co., 104 Mont. 558, 69 P.2d 586, 593, 111 A.L.R. 874; Restatement of Judgments, § 68. In the instant case the parties to this action twice appeared before a court of competent jurisdiction to determine the child support payments under the decree. The resulting modifications finally fixed the sums due under the decrees to the date this action was filed. We hold that as a result of these prior judicial determinations *297 appellant Gessell is estopped to contend that a greater amount of child support is due and owing under contractual obligations. The judgment is affirmed. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES ADAIR, CASTLES and JOHN CONWAY HARRISON concur.

May 10, 1967

41e586a6-899a-4142-bdc4-5dbc5de8a1a3

State v. Houchin

428 P.2d 971

11273

Montana

Montana Supreme Court

428 P.2d 971 (1967) STATE of Montana, Plaintiff and Appellant, v. James Robert HOUCHIN, Jr., Defendant and Respondent. No. 11273. Supreme Court of Montana. Submitted May 8, 1967. Decided June 15, 1967. Forrest H. Anderson, Atty. Gen., Helena, Marshall Candee, County Atty., Libby, Charles M. Joslyn, Asst. Atty. Gen. (argued), Helena, for appellant. Murphy, Robinson, Heckathorn &amp; Phillips, Kalispell, C. Eugene Phillips (argued), Kalispell, for respondent. JOHN C. HARRISON, Justice. This is an appeal by the State from an order granting a new trial after a jury had found the respondent guilty of petit larceny and two prior convictions. This is a companion case to State v. Armstrong, 149 Mont. 470, 428 P.2d 611, decided by this court on June 2, 1967. In the Armstrong case, supra, a rather lengthy statement of facts was set forth and is referred to in considering this case. Only those additional facts as are particular to this case will be set forth. *972 The trial of the respondent was held approximately one week after his companion Armstrong had been convicted, after a jury trial, of petit larceny with two prior convictions and sentenced to two years in the State Penitentiary. At this trial a button that was found at the scene of the telephone line cutting was introduced without objection. It matched a button on the coat the respondent was wearing at the time of his arrest. Three buttons were missing on the coat but one remained which was used for comparison with the above-mentioned button. As at the trial of Armstrong, the State offered into evidence the horseshoe nippers found in the pickup respondent was driving, but unlike the Armstrong case the trial judge refused the admission into evidence of such nippers. A deputy sheriff testified here that after the Armstrong trial he had talked with a Mr. Elletson, who owned and had loaned the pickup to the respondent, and that he had been informed by Mr. Elletson that all the tools recovered from the vehicle, including the horseshoe nippers, were not his property. Further, at this trial the State offered to prove that Martha Houchin, respondent's wife, had guided two deputies to the location of 4,100 feet of missing telephone wire to which the respondent objected on the ground that her testimony was privileged, that it was not within any of the exclusions or exceptions of the hearsay rule and that no proper foundation had been laid. The trial court sustained the objection to the entrance of the recovered 4,100 feet of wire, but did not specifically state his reason. At the conclusion of the State's case, the respondent moved (1) that the court instruct the jury to return a verdict of not guilty on the grounds and for the reasons that there had been an utter failure of proof on the part of the State; (2) that as an alternative, to advise the jury to return a verdict of not guilty on the grounds that the state of proof is such that if the jury returned a verdict of guilty the verdict would have to be set aside; and (3) that as an alternative to the foregoing, to remove from the case the element of grand larceny on the ground that there was a total failure of proof as to the value of the property in Lincoln County, Montana, the place where the same was stolen. The court denied all three motions. The jury found respondent guilty of petit larceny. Respondent filed a motion for a new trial which resulted in a full scale hearing. It is noteworthy that little evidence was produced supporting the motion for a new trial. However, the trial judge in reconsidering several rulings he had made during the course of the trial granted a new trial for the following reasons: (1) That the court misdirected the jury in a matter of law and has erred in a decision of a question of law arising during the course of the trial; and (2) that the verdict is contrary to the law and the evidence. The appellant (the State) set forth three specifications of error for our consideration contending that the court erred in: (1) granting respondent's motion for a new trial; (2) not allowing the testimony of Deputy Sheriff Fisher that he was guided to the location of the wire by respondent's wife; and (3) not allowing State's exhibit 7, the horseshoe nippers, to be admitted into evidence. Specifications of error 2 and 3 will be first considered for it was in the exclusion of the evidence set forth in these specifications that the trial court created the situation wherein the appellant's case was short on proof. We agree with the appellant that the trial court committed error in not allowing into evidence the testimony of the deputy sheriff that he was guided to the location of the wire by the respondent's wife. The offer of proof by the appellant was to the effect that Martha Houchin accompanied the deputy and pointed out the location of the wire. The offer was limited solely to the fact and that it would not include testimony of any extra-judicial statements of the wife. *973 Our statute section 94-8802, R.C.M. 1947, provides: "Except with the consent of both, or in cases of criminal violence upon one by the other, or in case of abandonment, or neglect of children by either party, or of abandonment or neglect of the wife by the husband, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties." Applying the fact situation here, and strictly construing the statute, it is apparent that this statute is not applicable to the defense for here the wife was not called as a witness. The trial court's rule on the exclusion went to testimony of the deputy sheriff who would have testified that the wife of the respondent accompanied him to the area where the wire was recovered, and such testimony should have been allowed. Respondent also objected to the offer of proof on the grounds that it was hearsay testimony. We find no merit to this contention for the reasons above set forth that here the wife did not testify. The privilege accorded to husbands and wives in this state extends to communications only, that is utterances and not acts. See 10 A.L.R.2d 1395. To the appellant's third specification of error, that the court erred in not allowing the horseshoe nippers into evidence, we find merit. Here the respondent rests his position on the exclusion of the evidence squarely on Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), acknowledging that Preston under the specific language contained therein, might dictate a reversal in this case, the United States Supreme Court in Cooper v. State of California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (Feb. 20, 1967), has now elaborated on the meaning of that decision. If Cooper does not overrule Preston subsilentio, as contended by the dissent in Cooper, it does very clearly ingraft on the Preston rule an extension of the traditional concepts under which the search of automobiles may be conducted without a warrant. Insofar as the Federal Constitutional principles apply, an automobile may be searched by the police at a time and place remote from the arrest, providing the police have valid custody of the automobile at the time, and providing the arrest is valid, and providing the search is made for the fruits of the crime or evidence relating to the crime for which the accused was validly arrested. See also recent United States Supreme Court case, Warden, Maryland Penitentiary v. Hayden, 387 U.S. ___, 87 S. Ct. 1642, 18 L.Ed.2d ___ (May 29, 1967). Here the sheriff had valid possession of the pickup, used by respondent who was legally arrested, and the search of the pickup specifically related to the crime for which he was arrested. We do not find that our Constitution requires a more restrictive rule with respect to automobiles than that applied under Federal Constitutional standards as set forth by the United States Supreme Court. We therefore find the search to have been a reasonable one in this case. Turning to the first specification of error the district court was in error in granting a new trial for the reasons expressed in the court's memorandum, but in view of the errors occurring upon the trial which we have discussed, a new trial must be had. Cause is remanded to the district court for a new trial. JAMES T. HARRISON C.J., and ADAIR and DOYLE, JJ., concur. CASTLES, Justice, (specially concurring): I concur in the result. The District Court's discretion in granting of a new trial will not be interfered with unless a manifest abuse of discretion appears; or put another way that there is no basis for exercising any discretion. I believe that a complete discussion of the facts and evidence presented in this case, aside from the *974 Opinion's reference to the Armstrong case, would indicate to the reader that, in spite of the verdict of guilty, a new trial was in order because of the District Court's errors on the admission of evidence.

June 15, 1967

3cc36d73-9722-492b-9538-6f490801c15e

State v. Rollins

428 P.2d 462

11241

Montana

Montana Supreme Court

428 P.2d 462 (1967) The STATE of Montana, Plaintiff and Respondent, v. Fred ROLLINS, Defendant and Appellant. No. 11241. Supreme Court of Montana. Decided June 5, 1967. Submitted May 10, 1967. Michael J. Whalen (argued), Billings, for appellant. Forrest H. Anderson, Atty. Gen., Helena, John Adams, Jr., County Atty., H.F. Hanser, Deputy County Atty., Billings, James R. Beck, Asst. Atty. Gen. (argued), Helena, for respondent. CASTLES, Justice. This is an appeal from a judgment of conviction of assault in the second degree. The appellant, Fred Rollins, was charged with the crime of assault in the first degree; he was tried and the jury verdict resulted in the conviction from which he is appealing. The incident giving rise to charges against the appellant occurred in the early morning hours of December 5, 1965. On the evening in question, Ray Earsley, his wife Nikki and the appellant's former wife Laurel Rollins were at the Rimrock Bar in *463 Billings. The appellant was also at this bar the same evening. At about 2:00 a.m. Earsley, his wife, and Laurel Rollins left the bar and got into a car owned by Laurel Rollins. Upon pulling away from the curb, Ray Earsley, the driver, noticed that a rear tire had gone flat and stopped to investigate. He got out of the car and was standing at the right door when he first noticed appellant, who had pulled up in his car just prior to this. The appellant had a rifle in his hand when he got out of his car. He approached Ray Earsley and Laurel Rollins, who had gotten out of the car and was standing nearby. The appellant pointed the rifle at his ex-wife and told her to come with him. Upon being told by Earsley to leave her alone, he walked over and hit him alongside the head with the rifle, knocking him to the ground. At this point there is some conflict in the testimony. Several witnesses stated that after Earsley was lying on the ground, the appellant shot him once through the neck. According to appellant, the rifle accidentally discharged when he struck Earsley with it across the cheek. Ray Earsley himself had only a dim recollection of the event. After shooting Earsley the appellant turned on his ex-wife and pointed the rifle at her. He struck her with the butt of the rifle, knocking her down, and then stood over her pointing the rifle in her face. More shots were fired but fortunately no further injuries occurred. The appellant then left the scene in his car, and was later arrested in Wyoming. The rifle, admitted by the defendant to be the same one used, was found some four blocks distant. There are three issues presented. First, whether testimony concerning the assault upon Laurel Rollins was properly admitted into evidence; second, whether a photograph showing Ray Earsley's wound was properly admitted; and finally, whether the court erred in giving an instruction relating to the credibility of witnesses. The District Court permitted several witnesses to testify to the assault on appellant's ex-wife. As a general rule, evidence of a separate or collateral crime is not admissible. But an exception may occur when one criminal act is so closely related to the one upon which the charge is based as to form part of the "res gestae." In State v. Howard, 30 Mont. 518, 524, 77 P. 50, 52, this court said: "* * * If, while a person is engaged in the commission of one felony, he commits another, evidence of the commission of both is admissible as part of the res gestae." See also State v. Tighe, 27 Mont. 327, 71 P. 3, in support of this rule. Although the concept of "res gestae" is sometimes abused in an attempt to rationalize the use of otherwise inadmissible evidence, we feel that testimony concerning the attack on Laurel Rollins was properly received by the district court here. Appellant struck Laurel Rollins immediately after shooting Earsley; to separate these events in a reconstruction of the facts at trial would be extremely difficult as a practical matter. Moreover, the continuity of act and intent demonstrated by both assaults, coupled with the fact that appellant fired more shots after assaulting Earsley, greatly minimize the possibility that Earsley was shot "accidentally," as claimed by appellant. In passing on the question of criminal intent, the assault of Laurel Rollins was highly relevant. The second issue is whether a color photograph taken of Earsley's wounds at the hospital was improperly shown to the jury. Appellant cites State v. Bischert, 131 Mont. 152, 308 P.2d 969, in support of the proposition that such evidence may not be used if intended to inflame the minds of the jury rather than enlighten them as to the facts. We affirm the rule of the Bischert decision but reject its application in this instance. In passing on the admissibility of such evidence, the court should weigh its probative value against its prejudicial effect. The photograph involved in Bischert was particularly distasteful and did not make a significant contribution to the development of facts in that case. The picture *464 of Earsley here in question is not of that character, It was taken after the bullet wound had been cleaned and dressed. The reason offered by the State for its introduction was that it showed the presence of powder burns which were no longer visible at the time of trial. Such burns might corroborate appellant's version of the facts that the gun discharged when Earsley was struck on the cheek with the weapon. It might even be argued that the photograph minimizes the severity of the wound inflicted. The trial judge should have latitude of discretion in passing on the admissibility of such evidence, and we cannot find any abuse of such discretion in this case. The final issue, and the one of greatest concern to this court, is whether an instruction given on the credibility of witnesses constituted reversible error. The instruction, or variations thereof, has enjoyed a long and dubious history in the case law of this state. It reads as follows: "The Court instructs the jury that you are the sole judges of the credibility of the witnesses, and of the weight of their testimony. In determining the weight and credibility, you may take into consideration the character of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to, or his or her feeling toward the defendant, the probability or improbability of his or her statements, as well as all the facts and circumstances given in evidence, and a witness false in one part of their testimony is to be distrusted in others, except insofar as it may be corroborated by other and credible evidence in the case." (Emphasis supplied.) The specification of error involves only the last part of the instruction, and in particular that portion which permits otherwise distrustful evidence to be "restored" to credibility by corroborating evidence. Section 93-2001-1, subsection 3, provides that a jury may be instructed: "That a witness false in one part of his testimony is to be distrusted in others; * * *." It is interesting to note that Professor Wigmore in his treatise on evidence says, with reference to this very type of instruction: "The propriety of giving such an instruction is questionable; for it merely informs the jury of a truth of character which common experience has taught all of them long before they become jurymen." Wigmore on Evidence, Third Edition, Section 1010. Although we are inclined to agree with the professor, it is nevertheless true that the general form of the instruction is permitted under Montana statute. The appended exception "* * * except insofar as it may be corroborated by other and credible evidence in the case," has never been approved by this court. The first case to disapprove of such an instruction is State v. Penna, 35 Mont. 535, 90 P. 787, decided in 1907. The Penna case held that while the instruction was incorrect, it did not constitute sufficient error for reversal and was not prejudicial per se. Another case taking a dim view of a similar instruction is State v. Belland, 59 Mont. 540, 197 P. 841, 844 (1921). At page 549 the court said: "It [the instruction] is essentially erroneous, and a like instruction has been condemned by this court so often that it seems inconceivable that the error could be repeated at this late day." If the day was late in 1921, it must certainly be so today. In State v. Hogan, 100 Mont. 434, 49 P.2d 446, the giving of this type of instruction was finally held to be reversible error. The Hogan case involved a defendant convicted of four prior felonies; this fact was apparently argued by the county attorney to justify the use of the instruction, though admitted to be incorrect. There was also a reference made in the closing argument in the Hogan case to an alleged second robbery committed by the defendant. This second robbery had not previously been a part of the trial. Under the particular circumstances of the Hogan case, including the failure of the trial judge to order a stenographic *465 record of closing argument, the instruction was given as one ground for reversal. The most recent Montana decision on this issue is State v. Carns, 136 Mont. 126, 345 P.2d 735. The same type of instruction was condemned in that decision, but since the case was reversed on other grounds, statements in reference to the instruction were dicta. Appellant urges that the instruction is grounds for reversal in itself without a specific showing of prejudice. We cannot agree. The Hogan case did not go quite this far, but sought only to assure a fair trial to a defendant who had been clearly prejudiced on several accounts. If the Hogan decision suggests that such instruction is inherently prejudicial, we must here clearly reject such an interpretation. In State v. Penna, supra, additional instructions were given the jury indicating that they were the sole judge of the credibility of witnesses. The same is true in the instant case. In State v. Hay, 120 Mont. 573, 194 P.2d 232 in passing on the same type of instruction, this court held that mere technical error, without a showing of prejudice to the substantial rights of the parties, is not grounds for reversal. While there is some conflict in testimony here, it is clear enough from the record that the appellant committed a grossly reprehensible assault. Considering the highly indiscreet use of a deadly weapon, appellant is fortunate that he was not found guilty, as charged, with first degree assault rather than second degree. We simply cannot find any prejudice to appellant through the giving of the instruction, and refuse to reverse on what we consider to be a technical deviation from a statute of doubtful significance. For the foregoing reasons, the judgment is affirmed. JAMES T. HARRISON C.J., and ADAIR, DOYLE and JOHN C. HARRISON JJ., concur.

June 5, 1967

adeaa160-0b2b-4851-bb3c-06e56170c1e1

MONT. DEACONESS HOSP. v. Lewis & Clark County

149 Mont. 206, 425 P.2d 316

11129

Montana

Montana Supreme Court

425 P.2d 316 (1967) 149 Mont. 206 MONTANA DEACONESS HOSPITAL, a nonprofit corporation, Plaintiff and Appellant, v. LEWIS AND CLARK COUNTY, a political subdivision of the State of Montana and Lewis and Clark County Welfare Board, Defendants and Respondents. No. 11129. Supreme Court of Montana. Submitted February 8, 1967. Decided March 13, 1967. *317 Church, Harris, Johnson &amp; Williams, Cresap S. McCracken (argued), Great Falls, for appellant. Thomas Hanrahan, County Atty., Thomas F. Dowling, Deputy County Atty., Helena, William F. Crowley (argued), Missoula, for respondent. JOHN C. HARRISON, Justice. This is an appeal from the findings of fact and conclusion of law of the District Court of the First Judicial District, County of Lewis and Clark, State of Montana, that Mary Lou Desonia was not a resident of Lewis and Clark County at the time of furnishing emergency surgical services to her and that she was not a medically indigent person. Mary Lou Desonia, a single woman, 26 years old, was admitted to the Montana Deaconess Hospital in Great Falls, Montana, on May 22, 1964. She was suffering from acute appendicitis. Surgery was performed and Miss Desonia remained in the hospital until May 29, 1964. During her stay, the hospital investigated her financial circumstances and determined that she was apparently without funds. The hospital authorities immediately contacted the Cascade County Welfare Department. An application for assistance was made by Miss Desonia, at the hospital's request, although it was not her desire to apply. She said she was willing to and desired to pay the hospital bill herself, and she admits her liability to make payment, although it can fairly be said that she never paid, made any effort to pay, nor does she have any apparent ability to pay. Cascade County denied any responsibility for Miss Desonia and referred the Deaconess Hospital to Lewis and Clark County. The Lewis and Clark County Welfare Department investigated and recommended denial of the claim. The denial was based on two grounds: (1) There was insufficient evidence that Miss Desonia was a resident of Lewis and Clark County; and (2) Miss Desonia was fully employable. After Miss Desonia's release from the hospital, several monthly bills were mailed to her, and on one occasion, a phone call was made to her by the hospital. On June 24, 1964, the Deaconess Hospital filed a claim with the Lewis and Clark County Commissioners for Miss Desonia's bill. The claim was denied. This law suit was then initiated. From an adverse ruling in the lower court, the Montana Deaconess Hospital now appeals. Four issues are involved in this matter. (1) residency; (2) real party in interest; (3) indigency; and (4) must an appeal be taken to the State Welfare Board before instituting a court action? The first issue is whether or not Miss Desonia's residence in Lewis and Clark County was proven. This action came to the district court as a review of the Board of County Commissioners' denial of the hospital's claim for payment. However, at the hearing in the district court the appellant produced Mary Lou Desonia, who in spite of the finding of the district court that she was not a resident of Lewis and Clark County, testified that she was born and raised in the County and had only lived in Cascade County a month prior to her operation. This was the only evidence as to residency produced by either side and the court clearly erred in its finding that she was not a resident of Lewis and Clark County. The second issue concerns whether the hospital can prosecute the claim as a real party in interest. The district court held that the hospital in this instance had standing as a real party to sue in this case. Respondent, relying on Rule 14, M.R.Civ.P., requests that this holding be reviewed. This court sustained the lower court's ruling, finding that the hospital in these emergency medical care cases can become a real party in interest and bring an action. This court considered the question of emergency hospitalization to an indigent in the case of State ex rel. Montana Hospital Association, Inc. v. Pitch, 140 Mont. 349, *318 372 P.2d 90. In that case the Hospital Assn., the assignors of a claim of one of their member hospitals, brought mandamus proceeding against the Board of County Commissioners of the alleged home county of the indigent. This court upheld the denial of mandamus by the district court on the basis that a plain, speedy and adequate remedy was available at law under section 16-1808, R.C.M. 1947. In so doing we most certainly recognized the hospital as a real party in interest entitled to assign its claim. Under our statutes hospitals may collect from counties for welfare cases either by contracting with the county to handle such cases or for services rendered to one who has been unable to provide such necessities for himself. Here there is no contract between appellant hospital and Lewis and Clark County. Rather the hospital having determined that Miss Desonia was unable to pay for her hospitalization bases its claim to her rights under the Welfare Act. The hospital incorrectly assumed that it had the power to determine whether or not Miss Desonia was "unable to provide for herself." The legislature has failed to provide for "emergency medical or hospital care" outside the confines of a county other than via the contract method, however, section 71-308, R.C.M. 1947, provides in part: "Medical aid and hospitalization for persons unable to provide such necessities for themselves are hereby declared to be the legal and financial duty and responsibility of the board of county commissioners, payable from the county poor fund. * * *" Clearly, so long as the provisions as to notice, etc., are followed it was contemplated by the legislature that emergency situations would be provided for administratively by the board of commissioners either within or beyond the county lines. To hold otherwise would not be in harmony with our statutes. If hospitals were to reject admission of emergency cases until the legal settlement is established, or until one who is responsible accepts the obligation to care for such indigent, much harm could result. Recognizing that the hospital can become the real party in interest, it is incumbent upon it to establish, as would an indigent, that it is entitled to collect. Here the hospital, once having decided to prosecute its claim, assumed the burden at the trial of proof of residency and proof of indigency. The third issue is whether or not proof of medical indigency was submitted proving Mary Lou Desonia eligible for medical or hospital assistance under the public welfare and relief laws. We approach this question assuming that an employable adult must be presumed not to be an indigent within the meaning of our statutes. While medical indigency has never been defined by this court, for our purposes here we look to the language of section 71-308, R.C.M. 1947, and Article X, § 5, of our Montana Constitution, that indigent persons entitled to medical aid and hospitalization are those persons unable to provide such necessities for themselves by reason of age, infirmity or misfortune. Recognizing that the primary obligation to pay for such service rests upon the individual who benefits from them and that the legal obligation upon the county does not mature into a liability until it has been shown that the individual is an indigent person, we must recognize that some agency must be charged with the duty of establishing such indigency. Our legislature has given that duty to the welfare department and the county commissioners and has set up the procedural steps to be followed in carrying out the Welfare Act. See sections 71-223 and 71-306, R.C.M. 1947. Under our statutes the Welfare Department is charged with the duty of investigation and upon such investigation to make recommendation to the Board of County Commissioners. In this case as previously pointed out no creditable investigation was made either of the residency claim of Miss Desonia or whether or not she was an indigent. *319 Therefore, when the matter was presented to the Commissioners for a decision they had inadequate information upon which to base their decision. It is the duty of the Board of County Commissioners under our law to serve as a fact finding body and to make decisions based upon the claims presented to them. In view of the right to appeal, set forth in our statutes, the Board should make findings of fact in each case so that these findings can be reviewed by the state Welfare Board should an appeal be made. Answering issue number four, it should be noted that if a claimant is denied assistance under the public welfare and relief laws, they may appeal to the county board and to the state board and submit proof of the validity of the claim. As to the question of medical indigency as it pertains to the emergency operation here in question, the first hearing before the Board of County Commissioners, received no creditable information from the Welfare Department on whether or not Miss Desonia was either a resident or an indigent. Rather they had to make their decision on whether or not she was employable, and if so she ipso facto was not eligible for welfare as an indigent. However, at the hearing in the district court enough evidence was produced concerning whether she was a medically indigent person, so that the district court ruled that in its opinion she was not a medically indigent person. However, this finding is in our opinion contrary both to the testimony introduced and to the spirit of the legislative intent of the welfare statutes of this state. The fact was that Miss Desonia never has supported herself and apparently never would. Just what the social, moral, mental, or physical reasons for her inabilities to be a productive citizen are do not appear; but the fact remains she was at the time of admission to the hospital an indigent in every legal and social sense. What we have said heretofore indicates that the burden of proof of indigency, residence and the other factors in these cases rests both upon the claimant (the hospital in this case) and upon the Welfare Department, to the extent that full facts be disclosed. In the light of what we consider inadequate consideration by all parties here, we are not called upon to place the burden of proof with particularity. We therefore reverse the decision of the district court and return the case with the directions that judgment be entered for appellant hospital. JAMES T. HARRISON C. J. and ADAIR, LESSLEY, and CASTLES, JJ., concur.

March 13, 1967

18fb0b37-4df1-405a-92d9-9e0d55bb6593

Elliot v. SCHOOL DIST. NO. 64-JT

425 P.2d 826

11221

Montana

Montana Supreme Court

425 P.2d 826 (1967) Robert A. ELLIOT, Creel Poole, James E. Wilson, Sr., James E. Wilson, Jr., Robert Shellhamer and Emmett Wilson, Plaintiffs and Appellants, v. SCHOOL DISTRICT NO. 64-JT. OF MUSSELSHELL-ROSEBUD COUNTY et al., Defendants and Respondents. No. 11221. Supreme Court of Montana. Submitted February 9, 1967. Decided April 3, 1967. *827 Roy V. Morledge, Jr. (argued), Billings, for appellants. Forrest H. Anderson, Atty. Gen., Helena, Ross Cannon, Sp. Asst. Atty Gen. (argued), Helena, Thomas M. Ask (argued), Roundup, for respondents. CASTLES, Justice. This is an appeal from a judgment upholding the validity of a school bond election. The appellants are taxpayers who voted in an election which they seek to have declared illegal, null and void. The respondents are two school districts, the three members of the Board of Trustees, and the Clerk of both districts. Both school districts are joint districts with boundaries including land in Musselshell and Rosebud counties, with the proposed school building (the subject of the bond issue election) for both districts to be located at the town of Melstone, in Musselshell County. School District 64JT is the elementary district and School District 64H-JT the high school district. Both districts have the same boundaries and the same three individuals comprise the Board of Trustees for both districts. The election which is challenged was held on April 2, 1966, for the purpose of authorizing each district to issue bonds for the purpose of building a new school. The buildings would contain separate wings for the elementary and high school, joined by a common gymnasium to be used by all students. Both measures were approved by a vote of 72 yes and 56 *828 no in the High School District and 73 yes and 54 no in the Elementary District. This suit was commenced before the bonds were sold, and a temporary restraining order was issued to prevent such sale. This order was later modified to permit the sale of the bonds but to prevent delivery pending disposition of the case. The bonds have been sold but are not as yet delivered. The appellants set forth six specifications of irregularities in the election. Initially it is argued that the election was null and void for failure of the clerk of the school districts to set out in full in the minute books of the Board of Trustees the resolution authorizing the sale of the bonds. Section 75-3910, R.C.M. 1947, authorizes the Board of Trustees to pass a resolution calling for a school bond election and set forth certain specifics which the resolution shall contain, such as the amount of the bonds, the rate of interest, and so forth. Section 75-1901, R.C.M. 1947, requires a clerk to keep a record of Board of Trustee meetings. This section does not contain any specific language concerning the degree of particularity required of such minute entries made by the Clerk. On April 20, 1966, an entry was made in the minute books of respondent Board of Trustees noting that the school bond resolution was considered and approved. There is no allegation or showing that the resolution itself, on file with the Board of Trustees, was defective or inadequate. Appellants have not presented any Montana or other credible authority requiring the minute books to reflect the exact contents of the resolution. Nor can we find any abstract or logical basis for the interpretation urged by appellants, and find it is to be without merit. The second allegation of error that notice of the sale of bonds was not published in a New York City newspaper pursuant to Section 75-3917, R.C.M. 1947 is conceded by appellants upon oral argument to be unsound and does not require further comment. The third alleged irregularity was the failure to separately state on the ballots the cost of the gymnasium, high school, elementary school, and the necessary land therefor in violation of section 75-3901, R.C.M. 1947. That section states in broad terms the purposes for which school bonds may be sold. The real objection of appellants seem to be in the failure to separately state the cost of land involved. Authority cited is Lorang v. High School District "C" of Cascade County, 126 Mont. 204, 247 P.2d 477, a case construing Section 2, Chapter 130, Laws of 1949. Since this statute has been repealed by Chapter 120, Laws of 1953, there is no longer any statutory requirement that a bond issue proposal must include acquisition of the land as well as construction of the school buildings. Appellants object to the failure of the bond ballots to separately state the purposes for which the funds would be used, or to allocate specifically the amount each district would contribute to joint facilities such as the gymnasium. Since a single school and gymnasium was contemplated by both bond issues, we are hard pressed to believe that the purpose of the bond election was not set out with sufficient clarity. Our attention is next drawn to a series of "irregularities" in the election procedure which are said to have affected the free and intelligent casting of votes, rendering the ascertainment of the result so doubtful as to invalidate the election. These include the manner of distributing absentee ballots, the placing of numbers on some ballots, requesting poll-watchers to leave the room in which the ballots were being counted, and other less significant charges. We have carefully examined the transcript and find these various matters of dubious consequence. One of the two poll-watchers requested to leave testified that she could have remained had she so chosen. Numbers placed on the ballots by mistake were removed before being given to the voters and there is no indication that this technical departure from legal norms was prejudicial or in fact adversely affected the free choice of any witness. *829 The fifth allegation of unlawful procedure, which is responsible for a substantial part of the testimony presented, is that the bond ballots required the voter to indicate whether he was "For" or "Against" the measure, rather than "Yes" or "No". The lack of merit in this instance most clearly illustrates the creative determination with which appellants seek to attack the results of the election. Section 75-3911, R.C.M. 1947, sets forth a sample school bond ballot and states in part, "All such ballots shall be substantially in the following form: * * *" Emphasis supplied. The statutory sample uses "Yes" and "No," rather than "For" and "Against." If we may concede for purposes of argument only that the ballots in question did use "For" and "Against," it is doubtful in our minds that this would substantially deviate from the statutory recommendation. It is comforting to see from the transcript that certain of the complaining witnesses felt that "For" meant "Yes," and "Against" meant "No." The inability to cast an intelligent vote under such circumstances should not be attributed entirely to the form of the ballot. Whether the use of "For" and "Against" is proper is an issue which actually need not be met, since all the ballots placed in evidence by respondents used "Yes" and "No." An absentee ballot which arrived too late to be counted was opened by the trial judge; it said "Yes" and "No." We feel that the documentary evidence presented is the best evidence of the form in which the bond issue was presented. Although the appellants contend that the ballot was worded in such a manner as to be difficult to comprehend, none of appellants' witnesses were able to recall any specific language which was misleading or were able to state in general terms how they were confused. This is astonishing, since appellants state in their brief that "No one other than the dissident taxpayers remembered the terminology of the bond ballots." Having examined the ballots, we find them in substantial conformity to statutory form and sufficiently clear. The final allegation of error is that the trial court refused to grant appellants' motion to reopen for additional testimony, based upon the affidavit of Robert E. Wilson, the absentee voter whose ballot was opened by the district judge at the trial. Since Mr. Wilson was in Montana at the time of trial and was not called by appellants as a witness, the grounds urged for reopening is that appellants were surprised by the introduction into evidence of Mr. Wilson's absentee ballots. We can readily believe that appellants were surprised, at least with respect to the contents of the absentee ballots. They clearly show that the words "Yes" and "No" were used and that the balance of the ballot conformed to those placed in evidence by the respondents. But whether the appellants could reasonably have anticipated that the absentee ballots would be placed in evidence is a matter apart from what those ballots revealed. We feel that the trial judge correctly refused to hear additional testimony. The affidavit of the absentee voter raised only the issue of how his ballot was worded. The actual document, which had never been opened prior to trial, provides conclusive evidence on that issue and further testimony would serve no useful purpose. Several of appellants' witnesses testified that "rumors" were circulating before the election to the effect that there would be no provision in the ballot to vote against the bond issue. Many voters apparently believed they would not have a fair election prior to the event itself. We have the impression that certain voters had made up their minds as to the legality of the election before it took place. The rather serious inference that the ballot box was "stuffed" runs throughout the transcript, but was not pleaded and not proved. It is evident that appellants are dissatisfied with the results of the election. But this fact alone will not justify an attack on the election procedure which is entirely without substance in fact. The evidence was such that the *830 district judge, who heard the case without a jury, had little choice but to rule for the respondents. For the foregoing reasons the judgment is affirmed. The case is remanded with instructions to dissolve the temporary restraining order and to permit delivery of the school bonds to the purchaser. JAMES T. HARRISON C. J., and ADAIR, DOYLE and JOHN C. HARRISON JJ., concur.

April 3, 1967

94470ae8-ba59-42dc-98a6-e71e6355da8c

Mountain States Supply v. Mountain States F. &L. Co.

149 Mont. 198, 425 P.2d 75

10965

Montana

Montana Supreme Court

425 P.2d 75 (1967) 149 Mont. 198 MOUNTAIN STATES SUPPLY, INCORPORATED, formerly Mountain States Transport, Incorporated, a Montana Corporation, Plaintiff and Appellant, v. MOUNTAIN STATES FEED AND LIVESTOCK COMPANY, Incorporated, a Montana Corporation, Swift &amp; Company et al., Defendants and Respondents. No. 10965. Supreme Court of Montana. Submitted January 10, 1967. Decided March 13, 1967. *76 Herron &amp; Reber, Clayton R. Herron (argued), Helena, for appellant. James, Crotty, Corontzos &amp; Fopp, Theodore Corontzos (argued), Great Falls, for respondents. DOYLE Justice. This is an appeal from an order of the Cascade County District Court dismissing the complaint filed in this cause with respect to the individual defendants, Thaine R. Wulf, Marjorie Wulf and Jerome Whitaker. Plaintiff-appellant, Mountain States Supply Company, (a Montana corporation, hereinafter called plaintiff) alleged that it had entered into several leasing agreements with the defendant-respondent, Mountain States Feed and Livestock Company, (a Montana corporation, hereinafter called defendant) wherein the plaintiff agreed to lease certain motor vehicles and trailer equipment to the defendant. It was further alleged that the plaintiff had fully performed its obligations under the alleged leases and that the defendant owes a balance of $20,971.18 thereunder. Thaine Wulf, Marjorie Wulf and Jerome Whitaker (hereinafter called the individual defendants) were joined on the theory that they were jointly and severally liable as directors of the defendant corporation. Swift and Company, an Illinois corporation, was joined as a party defendant under an agency theory but was dropped as a party by stipulation. Subsequently an order was entered also dismissing the action with respect to the individual defendants on the ground that the complaint failed to state a claim against any of them. From this order the plaintiff appeals. Plaintiff contends that the individual defendants are personally liable as directors of the defendant corporation under section 15-811, R.C.M. 1947, which in material part reads as follows: "(1) Every corporation, having a capital stock, * * * shall by March 1st * * * file * * * a report of the condition of said corporation on December 31st preceding, which shall state the amount of the authorized capital stock, the proportion thereof actually paid in, and the amount thereof actually paid in in cash, and the amount issued, if any in payment of property purchased, services rendered, or labor performed, and the amount of existing debts, and also the names and addresses of the directors or trustees, and of the president, vice-president, general manager (if any) and secretary and treasurer of the corporation. * * * The report shall be verified *77 by the oath of the president, vice-president, secretary, or treasurer of such corporation. If the directors or trustees of any corporation shall fail to file such report, the directors of the corporation shall jointly and severally be liable for all debts or judgments of the corporation which may thereafter be in anywise incurred until such report shall be made and filed * * *. "(2) If the required report be made and filed after the time herein specified, the directors shall not, on account of the prior failure to make report, be liable for the debts thereafter contracted." Plaintiff's contention is made in two parts, first, that the individual defendants are subject to the statutory liability between March 1st and the date of the filing subsequent to March 1st of the years in question. Secondly, that the individual defendants should be held personally liable for the corporation's debts incurred after the annual reports were filed because they contained false statements and therefore cannot be deemed to fulfill the requirements of section 15-811. Defendant has answered these contentions by pointing out that section 15-811 only requires that a report be filed and that section 15-410, R.C.M. 1947, is the section that provides penalties against corporation officers for filing false reports. Defendant would even go a step further by urging this court that the information required by section 15-811 is not sufficient to give notice of a corporation's true financial condition and therefore compliance with that section would not be required. Section 15-811, R.C.M. 1947, has existed in one form or another in Montana since 1895 and has been the subject of considerable litigation. This court has consistently enforced the statutory liability imposed by section 15-811 holding that it is in the nature of a penalty which may be enforced by a creditor. Continental Supply Co. v. Abell, 95 Mont. 148, 24 P.2d 133; National Supply Co.-Midwest v. Abell, 87 Mont. 555, 289 P. 577; Williams v. Hilger, 77 Mont. 399, 251 P. 524; Anderson v. Equity Cooperative Assn. of Roy, 67 Mont. 291, 215 P. 802; First National Bank v. Cosier, 66 Mont. 352, 213 P. 442; Butler v. Peters, 62 Mont. 381, 205 P. 247, 26 A.L.R. 560; Giddings v. Holter, 19 Mont. 263, 48 P. 8; State Savings Bank of Butte City v. Johnson, 18 Mont. 440, 45 P. 662, 33 L.R.A. 552; Wethey v. Kemper, 17 Mont. 491, 43 P. 716; Elkhorn Trading Co. v. Tacoma Mining Co., 16 Mont. 322, 40 P. 606; Gans v. Switzer, 9 Mont. 408, 24 P. 18. The liability thus imposed on the directors is joint, several and primary and not that of surety or guarantor of the corporation, First National Bank of Missoula v. Cottonwood Land Co., 51 Mont. 544, 154 P. 582. Therefore the only question presented is whether the plaintiff is entitled to rely upon section 15-811. Since this case has not been heard on its merits and the order appealed from was made on the pleadings, we must look to the complaint to see if sufficient facts are alleged to invoke the liability of corporate directors under section 15-811. As in Daily v. Marshall, 47 Mont. 377, 133 P. 681, a creditor who seeks to hold directors personally liable for corporate debts because of failure to file the statutory annual report must clearly allege all of the facts and circumstances which are necessary under the statute to give rise to the liability. See also Stanton Trust &amp; Savings Bank v. Johnson, 107 Mont. 348, 85 P.2d 336. Section 15-811 states the conditions precedent to the directors' liability as follows: "the directors of the corporation shall jointly and severally be liable for all debts or judgments of the corporation which may thereafter be in anywise incurred until such report shall be made and filed * * *. If the required report be made and filed after the time herein specified, the directors shall not, on account of the prior failure to make report, be liable for the debts thereafter contracted. * * *." It appears from the portions of the section just quoted that only those debts which are incurred during the period of default of making and filing the report are *78 chargeable against the directors and further that debts are deemed incurred at the time of contracting. This construction is reasonable because the reports appear to be intended to give some notice of the condition or activities of the corporation and such notice would only be useful at the time of contracting. Plaintiff alleged in its complaint that the leasing agreements were entered into on the following dates: November 2, 1959, April 30, 1960, October 21, 1960, April 26, 1961, May 5, 1961, November 9, 1961. It was further alleged that the annual reports which are required by section 15-811 to be filed by March 1st were actually filed on April 11, 1960, April 12, 1961 and June 22, 1962. Applying the statute to the plaintiff's allegations we find that not one of the alleged contracts were entered into during a period when the corporation was in default of filing the annual report. Therefore we conclude that the complaint shows on its face that the plaintiff is not entitled to proceed against the individual defendants under the liability imposed by section 15-811. The plaintiff's contention that a false report is, in legal effect, the same as no report under section 15-811 is unconvincing. We are satisfied that the legislature intended that the penalty imposed on corporate officers for filing false reports is contained in section 15-410, R.C.M. 1947, which reads as follows: "Any officer of a corporation who willfully gives a certificate, or willfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages resulting therefrom to any person injured thereby, and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable." While the above-quoted section is broad enough to cover more than the annual report required by section 15-811 it clearly includes section 15-811 and no persuasive reason has been advanced why it should not be the exclusive remedy. Since the legislature has provided a remedy for the harm caused by false reports it would be of doubtful wisdom for the courts to undertake to determine the adequacy of each report on a case by case basis. When considering the sufficiency of an annual corporate report in Fisk Tire Co. v. Lanstrum, 96 Mont. 279, 30 P.2d 84, this court held that when a person is required to make a statement, which from the nature of things can only be made from information and belief, an affidavit in that form meets the requirement; thus minimal requirements under section 15-410 provide adequate protection against false reports. We are also unconvinced by the defendants' contention that section 15-811 does not require sufficient facts to apprise the public of the financial condition of the corporation and therefore should not be enforced. This contention ignores the very nature of corporations. Corporations were unknown at common law and exist purely as creatures of statute. They have only the powers which the creating sovereign grants. Section 15-101, R.C.M. 1947; Hutterian Brethren of Wolf Creek, etc. v. Haas, (9th Cir. U.S.D.C.), 116 F. Supp. 37. The chief advantage which is granted under the corporate form of doing business is that members thereof are shielded from personal liability for the obligations of the corporation. The sovereign is free to impose the conditions precedent to granting such immunity and equally free to remove the corporate immunity upon failure to meet the conditions. With respect to directors, one of those conditions is that an annual report be filed by March 1st. This court need not decide whether the required contents of the annual report give the best possible notice or any notice of the corporation's financial condition. The annual report is a condition precedent to a director's immunity and the filing thereof is a legal burden assumed when a person undertakes to become a director. *79 Finding no reversible error the order dismissing Thaine R. Wulf, Marjorie Wulf, and Jerome Whitaker as parties defendant is affirmed. JAMES T. HARRISON, C. J., and ADAIR, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

March 13, 1967

9b2186c4-34ee-434d-af81-5c22766818ea

State Ex Rel. Ross v. Dist. Ct.

150 Mont. 233, 433 P.2d 778

11359

Montana

Montana Supreme Court

433 P.2d 778 (1967) 150 Mont. 233 The STATE of Montana ex rel. George Edward ROSS and Myra M. Ross, Husband and Wife, Relators, v. THE DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT of the State of Montana IN AND FIR the COUNTY OF MISSOULA and the Honorable E. Gardner Brownlee, a judge thereof, Respondents. No. 11359. Supreme Court of Montana. Submitted August 24, 1967. Decided November 20, 1967. *779 Wooten &amp; Kidder, Hugh Kidder (argued), Missoula, for relators. Sherman V. Lohn (argued), Missoula, for respondents. PER CURIAM: This is an original proceeding brought in this court on July 21, 1967, at which time a petition seeking a writ of mandamus was filed. Following an ex parte hearing this court directed that an alternative writ of mandamus be issued requiring the respondent judge to honor an affidavit of disqualification and call in another judge to preside in cause 10242, Guardianship of Roland Mark Watson and Darin Scott Watson, pending in the district court of Missoula County, or to appear before this court on the 26th day of July, 1967, and show cause why he had not done so. On July 24th, the return day was vacated until the further order of the court. On August 8th, to facilitate our consideration we directed the clerk of the district court in Missoula County to transmit to this court any and all files in the matter of the estates and guardianships of Roland Mark Watson and Darin Scott Watson. On August 14th, a supplemental petition for writ of mandate was filed. On August 16th this court assumed jurisdiction of and ordered causes 30510, Ross v. Watson, and A-10242, Guardianship of Roland Mark Watson and Darin Scott Watson, consolidated with this proceeding. On August 21st respondent district judge filed a motion to dismiss and a motion to vacate. These motions were set to be heard on August 24th. On the day of the hearing, August 24th, a petition for writ of prohibition or other appropriate writ was filed in this cause by Relator which involved an order issued in cause 10204, Guardianship of Roland Mark Watson and Darin Scott Watson, by the respondent district judge on August 19th, which order was apparently issued for the purpose of requiring an accounting. Following the hearing on August 24th this court issued an order wherein we assumed jurisdiction over causes 10204, Guardianship of Roland Mark Watson and Darin Scott Watson; A9967, The Estate of Candyce Clair Ross Watson, deceased; 30332, Wrongful Death Action by George *780 E. Ross, Administrator of the Estate of Candyce Clair Watson v. Westmont Tractor Company, et al; and 10571, Wrongful Death Action by Roland Mark Watson, a minor, et al. v. Milo Wilson, et al.; and ordered these additional causes consolidated for the purposes of the court's further consideration. The court further appointed and commissioned Randall Swanberg, Esq., an attorney residing in Great Falls, as special master of this court in this and the consolidated causes with full powers, all as specified in Rule 53, M.R.Civ.P. The report of the special master was received and filed on October 17, 1967. Because so many action have been consolidated in this cause the court made an order designating who should be considered as "parties." The clerk of this court gave notice of the filing of the report of the special master to all "parties" as specified in the court's order and notified them of their right to file objections in accordance with Rule 53, M.R.Civ.P., within ten days after being served with the notice. No objections were filed. Relators move for adoption of the Report of the Special Master. In this situation no hearing is necessary and the court has considered the special master's report, has deleted portions thereof and now adopts the portions thereof hereinafter set forth to-wit: "The basic facts of the controversy, so far as they are pertinent to the decision of the matters involved, are as follows: Under date of February 25, 1966, in a divorce action filed in Ravalli County, Candyce Watson was granted a decree of divorce from Roland J. Watson, together with custody of two minor children, Roland Mark Watson and Darin Scott Watson, born September 26, 1962, and November 13, 1964, respectively. Defendant was ordered to pay to plaintiff $100.00 per month for their support, and to pay the usual attorneys' fees and costs. This decree was signed by the Honorable E. Gardner Brownlee, District Judge. The complaint was based upon mental cruelty. From the complaint, and from a report filed with the court by Ravalli County Welfare Department in Missoula County Cause Number 30510, a subsequent action for the custody of these children, it is learned that the parties were married in Salmon, Idaho, on May 16, 1960, at which time Roland was 16 years old and Candyce was 15, and that in June 1960, Roland was apprehended as a juvenile delinquent, the delinquency involving vandalism at a cheese factory, burglary of a home, and arson of a barn. As a result of the hearing on these charges, on June 8, 1960, about 3 weeks after the marriage, Roland was committed to the Montana State Industrial School in an order signed by the Honorable Emmet Glore, District Judge. Candyce continued to live with her parents, Roland was later paroled from the State Industrial School, to Mr. and Mrs. G.E. Ross, parents of Candyce. During the succeeding years it does not appear that either Roland or Candyce had steady employment, and their support, together with that of their children as they came along, was contributed to materially by Mr. and Mrs. Ross. Later, Roland entered the armed forces of the United States, although he was in Montana at the time of the filing of the divorce action, since he admitted service of the summons and complaint. After the divorce, Roland's contribution to the support of his children, required by the decree at $100.00 a month, consisted of a $400.00 payment received from the Army, on October 16, 1966, which came after the hardship discharge of Roland from the Army as hereinafter set forth, such payment leaving him still in arrears under the terms of the decree. "On June 29, 1966, Candyce Watson was killed in an automobile accident, under circumstances which gave rise to several claims for damages. So far as is material here, these were: (1) claim of the decedent herself, provided she survived an appreciable length of time after the accident, (2) claims on behalf of each of the minor children, (3) claim of Mr. and Mrs. G.E. Ross, parents of the decedent, *781 and (4) claim of the surviving husband Roland. It does not appear that this last claim was ever litigated, but the others were. At the time of the death of Candyce Watson, the children were being cared for by Mr. and Mrs. Ross, and they continued to do so. Because of the death of his wife and the existence of the minor children, Roland was granted a hardship discharge from the army, to assist with the care and support of the children, returned home and lived with Mr. and Mrs. Ross until March, 1967. During that month, or thereabouts, the Selective Service Board, investigating whether or not the terms of Roland's hardship discharge were being carried out, issued a questionnaire, and upon the return thereof, determined that Roland was not assuming the responsibilities of the children, and classified him 1A. Roland appealed this decision and a hearing thereon was set for April 20, 1967. "On March 24, 1967, he removed the children from the home of Mr. and Mrs. Ross, and on April 22, was married to Janice Maxine Joseph. "In the meantime, following the death of Candyce on June 29, G.E. Ross, her father, filed a petition for letters of administration of her estate, listing the unliquidated claim for damages for wrongful death as the corpus of the estate, and on July 18, he was duly and regularly appointed administrator, and letters were issued to him. In this matter Ross was represented by the law firm of Wooten &amp; Kidder, and the order appointing adminstrator was signed by the Honorable Emmet Glore, District Judge. It appears that Ross had retained the firm of Wooten &amp; Kidder through a written retainer agreement, providing for an attorney's fee of 25 per cent of any settlement prior to instituting suit, 33 1/3 per cent of any settlement, verdict, or recovery after instituting suit, and 40 per cent if the case was appealed, and the claims involved in said retainer agreement were those for damages sustained by Ross, his deceased daughter and her estate. Suit by the administrator of the estate was not actually filed until February 3, 1967, in Missoula County, where, as to civil actions, the district court of the fourth district is departmentalized. "At about the same time, a petition was filed, on January 30, 1967, in Ravalli County, asking the appointment of George E. Ross as guardian ad litem of the two minor children, and such an order was signed on the same day, by the Honorable Jack L. Green, District Judge. Thereafter and on February 7, 1967, in Ravalli County, suit for damages was filed by the two minor children through their guardian ad litem, and by George E. Ross and Myra Mae Ross, his wife, on their own behalf, for damages resulting from the death of Candyce Watson. With the filing of this complaint, because the fourth judicial district court is not departmentalized in Ravalli County, Wooten &amp; Kidder filed an affidavit of disqualification of the Honorable E. Gardner Brownlee. Disqualification of Judge Brownlee appears to be a standard practice with this law firm, and considerable friction has developed between them and Judge Brownlee as a result. "While the two damage suits were pending, and because of the removal by Roland of the children from the home of Mr. and Mrs. Ross, mentioned hereinabove, a complaint was filed in Missoula County on March 29, 1967, by Mr. and Mrs. Ross against Roland, seeking custody of the children and alleging, inter alia, both the pendency of the damage suit, and the fact that Roland had been reclassified 1A by the Draft Board in Hamilton, intimating that his interest in the children was due to these two facts. Upon this complaint, summons was duly issued and served, as was also an order to show cause (issued upon a separate petition simultaneously filed with the complaint), and signed by the Honorable Jack L. Green, in which temporary custody of the children was vested in Mr. and Mrs. Ross, and Roland was ordered to deliver the children to them at their home in Hamilton. Why this subject matter was not handled in *782 the divorce action in Ravalli County, which would appear to be the normal forum for disposition of the custody of the children, does not appear, but since the equity jurisdiction of the district court is sufficiently broad to encompass a question of the custody of minors as a separate proceeding, it probably is not important. In any event, the complaint for custody, and the petition for an order to show cause were both filed on March 29, 1967, and the order to show cause itself was filed on April 10, after having been served on March 31, 1967. On April 3, the defendant appeared through his counsel, Lyman J. Hall, and among other things requested that the portion of the order to show cause relating to temporary custody be rescinded and that Roland be allowed to keep the children during the pendency of the action. This petition was granted by the Honorable Jack L. Green under date of April 3, 1967. The order to show cause issued by Judge Green set the matter for hearing on April 17, 1967, but under date of April 7, 1967, an order filed April 17 was entered by Judge Emmet Glore continuing the hearing to April 27, with copies of the order to Wooten &amp; Kidder, Lyman J. Hall, and for information, to the Honorable Jack L. Green. Following this, on April 19, appears a minute entry by Judge Glore indicating that the three judges of the fourth district considered themselves disqualified in the matter, and calling in the Honorable James D. Freebourn of the second district to assume jurisdiction. No actual affidavits of disqualification had been filed in this case by anyone, against any of the three district judges. Neither does the minute entry indicate which of the first three subsections of section 93-901, R.C.M. 1947, as amended, were the grounds for the three judges deeming themselves disqualified. It appears that Judge Glore informally inquired of the other two judges whether they wanted to assume jurisdiction and upon being answered in the negative, he made the minute entry. While it is clear that a district judge may disqualify himself on his own motion, it is almost equally clear that he should no do so in the absence of a valid reason. 48 C.J.S. [Judges § 93, pp.] 1079-1080. * * * "Later, the hearing date of April 27, 1967, as set in the order of April 7, was again changed to April 24, 1967, by order dated April 17, and filed April 21. On April 24 Roland filed his answer to the petition, in which, oddly enough, he does not allege his recent marriage, but claims the right to custody of the children principally on the basis that he was their natural father. Trial was had before the Honorable James D. Freebourn on April 24 and 25, in which some 18 witnesses testified on behalf of the plaintiffs, and 7 on behalf of the defendant. The matter was then submitted to Judge Freebourn who, with commendable promptness, filed his findings of fact and conclusions of law on May 29, 1967, in which he found, among other things, that both Roland Watson and Mr. and Mrs. George Ross were fit and proper persons to have custody of the minor children, and held that the right of the natural father to custody of his children was superior to that of the grandparents. Accordingly he awarded custody to Roland. Upon these findings of fact and conclusions of law, judgment was entered on the same day. "Thereafter, and on June 6, 1967, the plaintiffs filed a motion for a new trial on the grounds of newly discovered evidence, to the effect that Roland had been inducted into the armed services as of May 31, 1967, and several other contentions, most of which are conclusions of law rather than actual grounds for a new trial. Simultaneously with the filing of their motion for a new trial, plaintiffs filed an affidavit of disqualification of Judge Freebourn. Thereafter, on June 26, 1967, and prior to the hearing on the motion for a new trial, a second affidavit of disqualification was filed by Ross against Judge Freebourn. Both of these affidavits of disqualification are in the words of section 93-901, as amended by the Legislative Session of 1965. "While all this was going on in the custody suit, the two damage suits hereinabove *783 referred to had been in the process of negotiations for settlement. We have already seen that George E. Ross had been appointed administrator of the estate of Candyce Watson, and guardian ad litem of the two children for the purposes of the damage suit in Ravalli County. With settlement of the damage suits imminent, and the suit for custody of the children pending, George E. Ross and Roland Watson quite sensibly arrived at a compromise agreement in order that settlement of the damage suits be not delayed, and they jointly petitioned the Missoula County Court for appointment as joint guardians, dating the petition April 24, 1967, the same day the custody suit came on for trial, and filing the same on May 9. At the same time Roland J. Watson filed an approval of the settlement arrived at, from which, together with a petition filed in the matter of the estate of Candyce Watson, also on May 9, it appears that the two law suits had been settled for a total sum of $75,000.00. Of this, $5,000 was assigned as the value of the claim of decedent Candyce Watson, and in the order approving the settlement of the estate claim, signed by the Honorable Jack L. Green, an attorney's fee of one third and expenses was approved. Of the remaining $70,000, a sufficient amount was assigned to the claim of George E. Ross and Myra Ross to refund to them the funeral expenses which they had paid in the sum of $1,152.63, and the approval of the settlement signed by Roland Watson indicates that the balance, after deduction of attorney's fees, which would accrue to the two minors was the sum of $43,627.80. On the same day, the Honorable Jack L. Green impliedly approved these figures by issuing his order appointing Ross and Watson as joint guardians and fixing bonds in the amount of $45,000.00 each. Each of the guardians qualified and letters of guardianship issued. Subsequently the proceeds of the settlement accruing to the minors were deposited in separate accounts for each of the minors, in each of two savings and loan associations in Missoula, resulting in four accounts, each within the insurance limits of the Federal Savings &amp; Loan Insurance Corporation, and such accounts are there to this day. * * * "With the children thus having guardians legally appointed over their estate, it is clear that nothing more than personal custody was involved in the proceedings pending before Judge Freebourn. Further, Roland Watson had agreed in his approval of the settlement, dated May 9, that George Ross might take charge of the funds, placing them in trust accounts in the savings and loan associations. * * * The possibility existed, of course, that custody of the children might carry with it the right to obtain the expenses incurred in raising the children out of the funds acquired by them in the litigation. "Returning to the custody action, the motion for new trial filed by Ross through his counsel was supported by the affidavit of George E. Ross, and to this motion and affidavit, Roland filed his counter affidavit on June 13, 1967, in which he contended that no new evidence was really involved in plaintiff's motion, notwithstanding the affidavit of Ross. There the matter rested, with no date having been set for hearing of the motion, but with an affidavit of disqualification having been filed against the Honorable James D. Freebourn. "Under these circumstances, assuming the validity of the affidavit of disqualification, it becomes the duty of the district judge in whose court, or whose department, the matter is pending, to take cognizance of the situation, and call in a new judge, fixing a time for hearing, or for other disposal of the motion. Fuller v. Gibbs, 122 Mont. 177, 199 P.2d 851. A reasonable time is allowed in which this may be accomplished, of course, but the district judge having this responsibility is required to proceed in good faith and without unreasonable delay. Failure to do so gives rise to a proceeding in mandamus. State ex rel. Coleman v. District Court, 120 Mont. 372, 186 P.2d 91. "A matter of a week does not seem to be an unreasonable time. Within that *784 week, and in the early morning hours of June 17, 1967, Roland J. Watson, to whom Judge Freebourn had confided custody of the children, was killed in an automobile accident. At the time, he had been married less than sixty days to Janice Maxine Joseph. The death of a party to whom the custody of minor children has been confided constitutes such a change of circumstances as to require reassessment of the custody problems. June 17 was a Saturday. On June 19 an order was issued and filed by the Honorable Emmet Glore, in whose department the matter was pending, and who had previously `deemed' himself disqualified without an affidavit having been filed, but who retained jurisdiction for purposes of settling the calendar and calling in a new judge, in which order the death of Roland was noted, as was also the affidavit of disqualification filed against Judge Freebourn. This order transferred the custody of the children, pending the final disposition of the matter, to Mr. and Mrs. Ross, set the hearing on further custody (not mentioning the technicality of the motion for new trial) for Wednesday, June 28, 1967, and called in the Honorable W.R. Flachsenhar to assume jurisdiction. The space provided for Judge Flachsenhar to indicate his acceptance of jurisdiction remains unfilled. * * * "It was later withdrawn under date of June 27 in a minute entry, because Judge Flachsenhar had never been formally called and the order had never been served, and further that it was superseded by an order in a different case, number A10242, hereinafter referred to. "Also on Monday, June 19, there was filed on behalf of Janice Maxine (Joseph) Watson, the second wife of Roland, a petition for appointment of guardian, which was assigned the court number A10242. In probate matters, the district court for Missoula County is not departmentalized, so that any judge to whom the matter is brought may act. This petition sets forth that petitioner is the surviving wife of Roland Watson, that Roland had been granted custody of the two children in the order of Judge Freebourn dated May 25 and that Roland had been killed on June 17. The petition also stated that it was necessary and convenient that a guardian be appointed to the persons and estates of the minor children, and requested such appointment. In view of the fact that the same district court had already appointed guardians of the estates of the two minor children, it was clear at the time this petition was filed that it could involve nothing but guardianship of the persons of the children, a term which to all practical purposes is synonymous with custody, which was already before the court in another suit in which a motion for new trial was pending. The filing of this petition was therefore superfluous, and it was clearly subject to the objection that another action was pending covering the same subject matter, although there are some subtle distinction between guardianship of the person of a child, and custody of the same child. "Notwithstanding these considerations, an order was entered by Judge E. Gardner Brownlee on the same day, ex parte, not for the appointment of a guardian of the persons of the children, but giving custody of the children to the second wife, pendente lite the determination of the custody suit then pending. In view of the fact that no notice of this proceeding was given to counsel for Mr. and Mrs. Ross, and in view of the further fact that the order itself makes reference to the pending custody suit, number 30510, so that both court and counsel were aware of its pendency, the entry of this order seems a little hasty. If, as has been suggested, the procedure was adopted of filing a petition for guardianship and receiving an order granting temporary custody because the second Mrs. Watson was not a party to the custody action, it would appear that the preferable procedure would have been to file a petition to intervene directly in the custody suit. And in any event, since the custody suit was in the department of Judge Glore, who that day was on the bench in a criminal action, and later in the day issued the order hereinabove *785 referred to which was later revoked, due caution should have suggested referring the matter to the judge already concerned with the matter involved in the petition. In the light of subsequent developments, this order is moot, but it does seem to point up either a deficiency in the court rules of the fourth judicial district which permits all three judges concurrent jurisdiction in probate matters, or a failure to observe the amenities that would necessarily flow from the existence of such a rule. "Upon obtaining information of the entry of this order in the second guardianship proceeding, counsel for Mr. and Mrs. Ross filed a rather remarkable document. Entitled a `Motion to Dismiss,' it purports to be filed on behalf of the above-named defendant, (no defendant being named) and asks dismissal of the action because the complaint (there being no complaint) fails to state a claim against the defendant (there being none), and on the further ground that there was another action pending. Accompanying this motion there was also filed an affidavit of disqualification against the Honorable E. Gardner Brownlee. This affidavit, too, is in the words of the statute, and was filed on the day following the entry of the order above referred to. It does not appear that any action was ever taken on the so-called `Motion to Dismiss.' "In the custody action, Number 30510, on June 21, there was filed a praecipe, signed by counsel for Roland Watson, who at the time was deceased, indicating the withdrawal of counsel who had previously represented the defendant, and requesting the entry of the name of Anthony F. Keast as the new attorney for the defendant. While at common law the death of a client terminated the attorney-client relationship, in Montana, section 93-2101, R.C.M. 1947, provides otherwise. * * * On the same day Mr. Keast filed a motion resisting the affidavit of disqualification of Judge James D. Freebourn, and also setting out the entry by Judge Glore of the order calling in Judge Flachsenhar, hereinabove referred to, and designating both the affidavit of disqualification and the order by Judge Glore as void ab initio, but setting forth no reasons why this was so. This motion then requests that Judge Freebourn hold a hearing on the motion for new trial and dispose of it. Notice of time and place of said hearing was given by Mr. Keast, the same being set in the notice for Thursday, June 29, at 10 o'clock a.m. There is no order by Judge Freebourn setting the matter for hearing. Following this notice, Messrs. Wooten &amp; Kidder once again filed an affidavit of disqualification of Judge Freebourn, and again the affidavit is in the words of the statute. "Notwithstanding these two affidavits of disqualification, the matter came on for hearing on June 29 before Judge Freebourn and the minutes indicate, and a formal order filed July 6, 1967 confirms, that Judge Freebourn granted the motion of Anthony F. Keast to serve as counsel for the defendant, notwithstanding the fact that the defendant was deceased; that the affidavits of disqualification of Judge Freebourn were set aside, notwithstanding the fact that yet a third such affidavit was filed on June 29, that defendant's motion to quash Judge Glore's order of June 19 as void ab initio was granted; that defendant's motion to resist the subsequent affidavit of disqualification was granted, and the same was quashed; that the court took judicial notice of the order in guardianship file number A-10242 granting temporary custody to the second Mrs. Watson, and that the motion of the Rosses for a new trial was denied, together with their motion for care, custody, and control of the minor children. Since this order was entered squarely in the teeth of three affidavits of disqualification, it becomes necessary to consider the power of a district court to overrule, quash, or ignore such an affidavit. * * * "It has long been the rule in Montana that an affidavit of disqualification may be filed with effect at a time when a motion for new trial is pending. As early as 1905, in an opinion by Chief Justice Brantly in State ex rel. Carleton v. District Court, 33 Mont. *786 138, 144, 82 P. 789, the following language was used: "`* * * The word "motion" seems to have been inserted purposely, to indicate that it was the intention of the legislature to allow the litigant to work the disqualification at any time before the time for trial on the merits, and further, at any time before a hearing on a motion in the progress of the case which involves a final adjudication of the rights of the parties upon that particular branch of the case. To illustrate: that it might be filed at any time before the hearing of a demurrer or motion to strike, or motion for judgment on the pleadings, or trial on the merits, or a hearing on motion for a new trial, or a motion to set aside a default, or the like, but not in any of these instances, on the day of the hearing or during its progress. * * *'" "In 1909, in a case where the presiding judge disqualified himself at a time when a motion for new trial was pending, and the successful litigant objected to his doing so and calling in another judge, the Supreme Court recognized the Carleton decision and held: "`In this state a party has no absolute right to have his motion for a new trial passed upon by the judge who tried the cause. State ex rel. Carleton v. Dist. Ct., 33 Mont. 138, 82 P. 789.'" Hill v. Nelson Coal Company, 40 Mont. 1, 104 P. 876. "Again, in Russell v. Sunburst Refining Company, 83 Mont. 452, 461, 272 P. 998, decided in 1928, where a disqualifying affidavit had been filed against the presiding judge while a motion for a new trial was pending, the court used the following language: "`A motion for a new trial must be submitted to, heard and determined by the court and not by the judge thereof. When Judge Horsky appeared and assumed jurisdiction of the cause he became vested with all the power and authority over the same which a judge of that court theretofore possessed. In the settlement of the bill of exceptions the plaintiff had elected, as was his right, not to have the same prepared, allowed or settled until after the decision on his motion for a new trial.'" "Thus the law in Montana at the time the motion in the present case came on for hearing, was to the effect that such an affidavit was proper after the filing of a motion for new trial and before hearing on the merits thereof. "The wording of our disqualification statute, section 93-901, R.C.M. 1947, as amended, is to the effect that it is the filing of the affidavit which works the disqualification, and not the truth of the contents thereof. If the affidavit is in the words of the statute, and is properly verified, the judge against whom it is filed is without jurisdiction to consider its contents, but must simply accept the fact of the filing of the affidavit, and step aside. In State ex rel. Grogan v. District Court, et al., 44 Mont. 72, 75, 119 P. 174, we find the following language: "`It cannot, we think, be controverted that the affidavit filed in the district court was sufficient to work a disqualification of Judge Smith and deprive him of jurisdiction in the case of Cline v. Grogan et al. Under the statute (Rev.Codes, sec. 6315) a disqualification is wrought by the filing of an affidavit imputing bias and prejudice to the presiding judge at any time before the day fixed for the hearing. The imputation may be made in the language of the statute, and proof of facts showing actual bias and prejudice is not required nor permitted. (State ex rel. Carleton v. District Court, 33 Mont. 138, 82 P. 789).'" "It is to be observed at this point that the judgment against which the motion for new trial was directed was filed on May 29, 1967. The hearing on the motion took place on June 29, 1967. This being more than ten days after the filing of the original judgment, the provisions of Rule 59(d) do not appear to be involved. [Court Note: For cases involving Rule 59(d) see State ex rel. Bellon v. District Court, 140 Mont. 447, 373 P.2d 314; State *787 ex rel. Cline v. District Court, 142 Mont. 278, 384 P.2d 490; and State ex rel. Peery v. Dist. Ct., 145 Mont. 287, 400 P.2d 648.] "It would thus appear that Judge Freebourn was without jurisdiction to enter his order of June 29, 1967, filed July 6, 1967. Certain other facets of the situation confronting Judge Freebourn, however, must be considered. As we have seen above, when the matter came on for hearing on June 29, Roland Watson, in whom custody of the minor children had been placed by the order of May 29, was dead. Since the very nature of the custody of children is such that it cannot be exercised by a deceased person, it was evident that custody of necessity had to be transferred. The only other persons before the court were the plaintiffs in the action, Mr. and Mrs. George Ross. Since the court had already found them to be fit and proper persons in its judgment of May 29, and since they were blood relatives, it would appear that they would be the ones to whom custody of the children should be confided. To award such custody to any other person or persons would at the very least require an investigation into the fitness of such person or persons. The provisions of section 91-4515, R.C.M. 1947, and particularly subdivision 3 thereof, would seem to be controlling. It provides as follows: "`3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows: "`First To a parent. "`Second to one who was indicated by the wishes of a deceased parent. "`Third To one who already stands in the position of a trustee of a fund to be applied to the child's support. "`Fourth To a relative.' "Without a new trial, therefore, the custody of the children could go only to Mr. and Mrs. Ross. They qualify under two of the four provisions of subdivision 3, and only three of those sections could be applicable to the present case. The new trial should therefore have been granted, although as we have seen, the disqualification of Judge Freebourn effectively prevented action on his part. If, as has been suggested, the real contending party against the Rosses is the second wife of the deceased Roland Watson, then it would be necessary, if she is to be heard at all, that a petition for leave to intervene be filed on her behalf, and if she has testimony to offer under the second proviso of subsection 3 of section 91-4515, it can be heard. "Accordingly, the entire matter should be remanded to the district court, in the department in which it was originally filed, and the presiding judge in that department should call in a new judge from outside the district who can then entertain a petition for leave to intervene, and if sufficient reason appears to grant the same, hear the testimony offered in the support of the desire of the second wife to have custody. * * * "One matter remains. In cause number A10204, the first guardianship proceeding, in which, as we have seen, George E. Ross and Roland J. Watson were appointed and qualified as co-guardians, the funds accruing from the settlement of the damage actions were by them deposited in the two savings and loan associations in Missoula. These funds were received May 9, 1967, or shortly thereafter, as appears from the record. Under the provisions of section 91-4906, R.C.M. 1947, it then became the duty of the guardians, in this case the survivor, to file within three months, an inventory and appraisement of the property coming into their possession as guardians. This has not been done. By August 9, 1967, the date upon which such inventory was apparently due, the parties were already before this court, a fact which may have caused the necessity of the inventory to be overlooked. This may extenuate, but does not excuse, the failure. "As a result of the neglect, an order was issued on August 19, 1967, by the Honorable E. Gardner Brownlee, citing the surviving guardian to appear and account for the funds. It appears that the order was *788 issued on the court's own motion, no one having filed an application for such an order. It is couched in language which indicates dissatisfaction with the attorney's fees received by counsel for the plaintiffs in the damage actions, and which also indicates that the issuing judge has probably pre-determined the matter. * * * "The order appointing guardians was issued by the Honorable Jack L. Green. * * * It is therefore recommended that the surviving guardian be ordered to file his inventory and appraisement, and opening accounting with reference to attorney's fees, and that the same be considered * * * with an appropriate order to be * * * entered. "In the matter of the estate of Candyce Watson, publication of notice to creditors has been given and appraisers appointed. Time for filing claims expired September 25, and the matter is therefore in condition for closing in the near future. Doubtless the comments above, with reference to the guardianship, will be sufficient to result in prompt action in the estate matter. "It is therefore recommended as follows: "1. That in cause 30510, the custody suit, the orders entered by Judge Freebourn, after disqualification, be set aside, a new trial granted, and the case be remanded with instructions to the judge in whose department the case originally fell, and none other, to call in an outside judge to hear the matter on the basis of the observations hereinabove contained; "2. That cause number A10242 be dismissed as superfluous; "3. That in cause number A10204, the guardian be required to account as hereinabove set forth; "4. That in the other consolidated cases, because they are either concluded or moot, no action be taken." The findings and recommendations above set forth are hereby approved and adopted by this court, and by virtue thereof it is hereby ORDERED: 1. In cause 30510, Ross v. Watson, the orders entered by Judge Freebourn after his disqualification be, and they are hereby, set aside and held for naught; 2. In cause 30510, Ross v. Watson, a new trial is granted and the cause is remanded to the district court and to the judge in whose department the case originally fell, and none other, with directions to call in an outside judge to hear the matter in accordance with the views herein expressed; 3. That cause A10242, Guardianship of Roland Mark Watson and Darin Scott Watson, be, and it is hereby, dismissed; 4. That in cause A10204, Guardianship of Roland Mark Watson and Darin Scott Watson, the Guardian, George Edward Ross, be required to account, which accounting shall include a consideration of attorneys' fees, as hereinbefore set forth; 5. That we relinquish jurisdiction over all causes hereinbefore consolidated and return them to their respective courts. 6. In view of the situation in Missoula County of the Fourth Judicial District with respect to a lack of court rules relating to primary jurisdiction over probate and guardianship matters, as noted in the Special Master's Report, this court orders that within sixty days from the date hereof the judges of that district adopt an appropriate court rule for Missoula County to the end that a determination of primary jurisdiction can be made from the rule adopted, in other words, so that it can be determined at any given time from the rule itself which judge has primary responsibility and jurisdiction in a given probate or guardianship cause. The clerk of this court is directed to forward certified copy of this order with each case file as it is returned to the district court from which it came; and, further, copies of this order shall be transmitted to the four district judges and four counsel who were designated as "parties" in our previous order.

November 20, 1967

72c8559a-ca27-4317-88cd-ee5a8567a4f3

National Farmers UP & C. Co. v. GENERNAL GUAR. INS. CO.

434 P.2d 708

11291

Montana

Montana Supreme Court

434 P.2d 708 (1967) NATIONAL FARMERS UNION PROPERTY &amp; CASUALTY COMPANY and Russell Salisbury, Plaintiffs and Appellants, v. GENERAL GUARANTY INSURANCE CO., and Clifford Lingen, Defendants and Respondents. James WILCOX, Plaintiff and Appellant, v. NATIONAL FARMERS UNION PROPERTY AND CASUALTY CO. et al., and Guaranty Ins. Co. et al., Defendants and Respondents. No. 11291. Supreme Court of Montana. Submitted September 13, 1967. Decided December 1, 1967. *709 Hoyt &amp; Bottomly, Great Falls, Richard V. Bottomly (argued), Great Falls, Loble, Picotte, Fredricks &amp; Smith, Helena, Gene Picotte (argued), Helena, for appellants. Jardine, Stephenson, Blewett &amp; Weaver, Great Falls, John Stephenson (argued), Great Falls, for respondents. JAMES T. HARRISON Chief Justice. This is an appeal by the plaintiffs from an adverse judgment in a declaratory judgment action. The action was brought to declare that, in respect to an accident occurring on March 9, 1964, defendant-respondent General Guaranty Insurance Company's coverage was "primary" and plaintiff-appellant National Farmers Union Property &amp; Casualty Company's coverage was "excess." Lingen was insured by General Guaranty Insurance Company (hereinafter called General) and Salisbury was insured by National Farmers Union Property &amp; Casualty Company (hereinafter called National). The circumstances surrounding the accident are these. Clifford Lingen needed a dented fender fixed on his car. He obtained four estimates and then contacted Russell Salisbury for another. Salisbury's estimate was lower or as low as the lowest of the others. Lingen then told Salisbury to contact the insurance company which was to pay for the repairs and Salisbury did so. The insurance company approved Salisbury's estimate and told him to proceed with the work. Within the next couple of days and on March 9, 1964, Lingen drove to Salisbury's farm where Salisbury was to do the work. Lingen could not wait for the work to be done so he needed a ride home. Lingen suggested they take his car since it was already warm. Lingen drove home and while *710 Salisbury was driving back to his farm in Lingen's car he was involved in an accident with one James Wilcox. Wilcox brought suit against Lingen and Salisbury for damages arising out of the accident. National tendered the defense of Salisbury to General on the theory that General was primarily liable. General declined but undertook the defense of Lingen. National then brought this declaratory judgment action, joining Salisbury as a co-plaintiff and Lingen as a co-defendant with General. General moved to join Wilcox and a hearing was held on the motion. Wilcox did not appear and resist the motion, and the court granted it. Thereupon Wilcox filed a complaint in this action wherein he alleged facts with respect to the collision; that he had filed a complaint in the district court of Cascade County naming Salisbury and Lingen as defendants; that he suffered certain injuries and sought judgment against the two defendants; that since the filing of that complaint a controversy had arisen between the insurance companies covering the two defendants; and he prayed for a declaration of the relative rights and duties of the insurance companies under their respective policies of insurance. The cause was submitted to the court, sitting without a jury, on the pleadings, depositions of the parties, and briefs. The court found for the defendants. The provision of General's insurance contract with Lingen which is in issue is as follows: "Insuring agreements. III. Definition of insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word `insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply: "(1) to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, but this provision does not apply to a resident of the same household as the named insured, to a partnership in which such resident or the named insured is a partner, or to any partner, agent or employee of such resident or partnership." (Emphasis supplied.) The lower court found that Salisbury was a person operating an automobile repair shop; that the accident arose out of the operation thereof; that Salisbury was not an agent of Lingen; and that General had no duty to defend Salisbury. Appellants claim these findings were in error and that National is entitled to its costs and attorney's fees incurred in the defense of Salisbury and of requiring General to assume its obligation of defense. Appellant Wilcox claims further error in the court's ruling making him a party to this action. The district court found as a fact that Salisbury was a person operating a repair shop. The law is well-established that the findings of fact of the trial court and the judgment based thereon are presumptively correct and such findings must be sustained if they are supported by substantial evidence. O'Connell v. Haggerty, 126 Mont. 442, 253 P.2d 578 (1953); State ex rel. Raw v. City of Helena, 139 Mont. 343, 363 P.2d 720 (1961); Close v. Ruegsegger's Estate, 143 Mont. 32, 386 P.2d 739 (1963). This court will not overturn the findings of the trial court when the evidence, fully considered, furnishes reasonable grounds for different conclusions. Stauffacher v. Great Falls Public Service Co., 99 Mont. 324, 43 P.2d 647 (1935). Thus, the first question for this court is whether there was substantial evidence supporting the findings. It is true that Salisbury's principal occupation was farming. His automobile repair *711 work was done on an occasional basis. He had retained tools from a time when he operated a service station. These tools were kept in the shop on his father's farm where Salisbury lived in a trailer house. His father also kept tools in the shop and the shop was used when farm machinery needed repairs. The shop was located in a building which was also used as a granary, but according to Salisbury, part of it was normally used for the shop. In the approximately two and one-half years prior to the accident Salisbury did more than eleven repair jobs. Some were done for insurance companies. At least one-half of the repair jobs were done in the shop. Others did not require the tools and facilities of the shop and were done elsewhere. We find there is substantial evidence in the record to support a finding that Salisbury was operating a repair shop. It is not necessary that the work be a full time business to constitute a repair shop within the language of the exclusion. See Brower v. Employers' Liability Assur. Co., 318 Pa. 440, 177 A. 826 (1935). Appellant cites Allstate Insurance Co. v. Lake Shore Mutual Ins. Co., 33 Ill. App.2d 172, 178 N.E.2d 675 (1961), which involves the same provision in issue here. That case is very similar on its facts and resulted in a finding that the driver did not come within the repair shop exclusion. The court in that case relied upon the fact that there was no "shop" maintained. In that case the repairman did his work in the street or a driveway. The court said: "In the present case we have a repairman who was not operating a repair shop within the literal meaning of the exclusionary clause * * *." In the case at bar such a shop exists, so that case furnishes no authority for appellants' position here. The second specification of error is that the district court should not have found that the accident arose out of the operation of the repair shop. The general rule, with respect to exclusion provisions of the type in General's policy, is that accidents occurring when the repairman is driving a customer's car to or from the repair shop in connection with the repair work, do arise out of the operation thereof. Couch on Insurance, 2d § 45:986; Berry v. Travelers Insurance Co., 118 N.J.L. 571, 194 A. 72 (1937); Pennsylvania Threshermen and Farmers' Mutual Casualty Ins. v. Travelers Ins. Co., 233 Md. 205, 196 A.2d 76 (1963); Dixie Automobile Ins. Corp. v. Mason (Fla.App. 1963), 155 So. 2d 172. Appellants contend that the above cases should not control for they involve full time repair shops. We cannot agree. Appellants have pointed out no reason to apply a different test to part time repair shops when both part time and full time are covered by the same provisions in the policy. The finding was not in error. Appellants' third claim is that the court was in error in finding that Salisbury was not Lingen's agent. It is clear and admitted that as to the repairs to be done, Salisbury was not an agent of Lingen's. Consequently the determining question here is whether driving the customer's car to or from the repair shop is a relationship of a different character. Restatement of Agency 2d, § 14 N, Comment b., describes a non-agent independent contractor as one "who contracts to accomplish something for another or to deliver something to another, but who is not acting as a fiduciary for the other * * *." In driving the car back to Salisbury's farm there is no fiduciary relationship. It is a bailment. A bailment is distinguished from an agency in that an agent has the power to subject the principal to personal liability. "In this respect, the agency relation differs from that arising from a bailment, since a bailee has, as such, no power to subject the bailor to liability in contract or in tort." Restatement of Agency 2d, § 12, Comment c. There was no authority given by Lingen to Salisbury to bind him to a contract with a third party. Also Lingen would not be personally liable for any damage caused by Salisbury's negligence in driving *712 without some further act on Lingen's part. We find that the lower court was correct and that Salisbury was not Lingen's agent. The final specification of error with which we must deal is appellant Wilcox's claim that he was not a proper party to this action and that the order making him a party should be reversed and Wilcox ordered dismissed. This is a dispute between two insurance companies, whereby is sought a declaration of the relative rights and duties of the two companies under their respective policies of insurance with respect to the accident. Rule 19 (a), M.R.Civ.P., provides that a person may be made an involuntary plaintiff when the persons have "a joint interest." Wilcox does not have a joint interest with National in this action. Wilcox was not a party to either of these policies of insurance, and is only indirectly interested in the outcome of this litigation between the two insurance companies. Wilcox is an improper party to this action. Fed. Ins. Co. v. Michigan Mutual Liability Co., 166 F. Supp. 537, (D.C. 1958); 2 Barron &amp; Holtzoff, Fed. Prac. and Proc., § 513.6, pp. 124-125. He was not an indispensable party. 2 Barron &amp; Holtzoff, Fed. Prac. and Proc. § 512, p. 100. The case of Sauer v. Newhouse, 24 F. Supp. 911 (U.S.D.C., N.J. 1938), held that where complete relief could be afforded plaintiff without the addition of the parties demanded, the latter were not "necessary" or "indispensable." Complete relief could be granted here. Although we find that Wilcox is an improper party to this action the relief asked for cannot be granted. We have long held that a claim of misjoinder must be raised at the proper time or it is deemed waived. Schauer v. Morgan, 67 Mont. 455, 216 P. 347 (1923); Frost v. J.B. Long &amp; Co., 66 Mont. 385, 213 P. 1107 (1923). This is the general rule (39 Am. Jur., Parties, §§ 104, 118 and 119.) and has not been altered by the adoption of the Montana Rules of Civil Procedure. Wilcox did not resist the motion making him a party. Since he did not do so we cannot hold the district court in error when it had no opportunity to rule on the issue. For the foregoing reasons the judgment is affirmed. HASWELL, CASTLES, ADAIR and JOHN CONWAY HARRISON, C.J., concur.

December 1, 1967

1191a224-730e-4182-a130-ef37a24bbd2e

Miller v. Meredith

423 P.2d 595

11185

Montana

Montana Supreme Court

423 P.2d 595 (1967) Raymond M. MILLER, Plaintiff, v. Beulah F. MEREDITH, Nanet Meredith Hill, Ross Whitfield, Florence Whitfield, wife of Ross Whitfield, Defendants. No. 11185. Supreme Court of Montana. Submitted January 11, 1967. February 2, 1967. *596 B. Miles Larson, Jr., Stanford, Church, Harris, Johnson &amp; Williams, Cresap S. McCracken, Great Falls, James C. Wilkins, Jr., Lewistown, for defendants and respondents. Charles Davidson (argued), Great Falls, for plaintiff and appellant. JOHN C. HARRISON, Justice. This is an appeal from a summary judgment entered in the district court, in and for the County of Judith Basin, Montana, the Honorable LeRoy McKinnon, judge presiding. The action was brought in the spring of 1965, founded upon allegations that the appellant had an option to certain lands owned by Beulah F. Meredith, subsequently conveyed to her daughter, Nanet Meredith Hill, who later conveyed to Ross and Florence Whitfield. By extensive discovery proceedings, questions of fact were eliminated from the case and upon appropriate motion the court granted summary judgment of dismissal in favor of respondents on May 13, 1966. Beulah F. Meredith acquired the land in question in the early 1930s. In 1948, the appellant Miller leased the land from her for three years and this 1948 lease was extended from time to time until November 1960. At that time appellant drew a new lease for three years commencing January 1, 1961, and expiring December 31, 1963. Under the lease he drew, the appellant provided: "It is further agreed that Raymond Miller shall have the right of option should the lands be for sale." Appellant summer-fallowed and planted winter wheat in the Fall of 1963. No new lease was submitted by appellant at the end of the lease on December 31, 1963. In April the respondents Whitfield purchased the property from Beulah F. Meredith and her daughter Nanet Meredith Hill for the sum of $10,000. On April 20, they notified appellant of their purchase, and he immediately flew to Colorado Springs on April 22, where he was told that the sale had been made. Upon return to Montana the appellant wrote respondent Hill on April 28, stating that he wanted to purchase the land, suggested an installment purchase of same and that he was "very interested in exercising my option to purchase the land." In May the land was conveyed to the respondents Whitfield and they received the landlord's share of the 1964 crop. Suit was *597 not filed until late in March 1965, and Mrs. Meredith was not served with summons until a year and one-half passed after the end of the lease. Service on Mrs. Hill took an additional month. In the meantime Mrs. Meredith had become an incompetent and her daughter Mrs. Hill had been made guardian ad litem. While appellant set forth two specifications of error which are (1) that the court erred in finding that the option granted in 1961 lease had no force or effect after January 1, 1964 and (2) that the court erred in finding that defendants Whitfield were purchasers in good faith and without notice, we feel the only issue before this court is whether the tenant, upon the expiration of a written lease and option, has an effective option by operation of law some three and one-half months after the expiration date. The question of whether a tenant holding over can exercise an option has not been before this court. This court held in Hart v. Barron, 122 Mont. 350, 204 P.2d 797, when called upon to interpret a contract: "If any uncertainty exists in such contract it is to be interpreted most strongly against the plaintiff promisor who caused such uncertainty to exist. Section 7545, R.C.M. 1935 [now section 13-720, R.C.M. 1947]." See also Voyta v. Clonts, 134 Mont. 156, 328 P.2d 655. This court has defined the word "option" as follows: "An option is a right acquired by contract to accept or reject a present offer within a limited or reasonable time." Winslow v. Dundom, 46 Mont. 71, 125 P. 136, quoting from Snider v. Yarbrough, 43 Mont. 203, 115 P. 411. And, "`It is simply a contract, by which the owner of property agrees with another person that he shall have the right to buy his property, at a fixed price, within a certain time.'" (Quoting from Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am.St.Rep. 17.) It is apparent on the face of the lease that the option drawn by appellant is neither a first refusal option nor a conditional option. A lease and an option are distinct agreements. The terms and the conditions of the lease are not the terms and conditions of the option. 32 Am.Jur., Landlord and Tenant, § 308, p. 286. Too, the very act of holding over and becoming a trespasser, though as hereinafter pointed out such status is protected by virtue of statute, such action cannot equitably be used to create in him a right. This court has held concerning a tenant: "`Since a tenant is under duty, it being a covenant express or implied in all leases, to deliver up the premises to the landlord on the termination of a lease, the tenant can hold over rightfully only pursuant to a valid agreement with the landlord. * * * A tenant holding over has no election to regard himself as a tenant; such election is in the landlord.' 32 Am. Jur., Landlord and Tenant, §§ 918, 919, pp. 778, 779. Mahoney v. Lester, 118 Mont. 551, 168 P.2d 339." State ex rel. Needham v. Justice Court, 119 Mont. 89, 94, 171 P.2d 351. Under the common law the holdover tenant was considered a trespasser and in order to get away from the harshness of such a rule, and to conform to agricultural practices of the state, our Code specifically provided for agricultural lessees in section 93-9703, R.C.M. 1947. Under this section a holdover tenant for sixty days without notice who invests time and seed will not lose this investment to the landlord. However, the statute gives him no more than the right to harvest his crop to protect his investment and protects him from liability in an action for unlawful detainer. Had the Legislature in its wisdom wanted to provide more it could have done so by statute. We must, therefore, construe the statute strictly. Having answered the principal issue presented upholding the action of the district court in granting summary judgment, we further note that we find no merit to appellant's second specification of error. The respondent Whitfields owed no obligation to appellant and in view of agreed statement of facts, the case presents a substantial basis upon which a court of equity *598 could have barred the claim by laches and estoppel. The judgment of the district court is affirmed. JAMES T. HARRISON, C. J., and ADAIR, DOYLE and CASTLES, JJ., concur.

February 2, 1967

2e6f011b-1fa1-4e50-bdd3-39335869bca0

Regedahl v. Safeway Stores, Inc.

425 P.2d 335

11151

Montana

Montana Supreme Court

425 P.2d 335 (1967) Ingvall REGEDAHL, Plaintiff and Respondent, v. SAFEWAY STORES, INC., Defendant and Appellant. No. 11151. Supreme Court of Montana. Submitted February 8, 1967. Decided March 20, 1967. *336 Arnold Huppert, Jr., Livingston, Lyman H. Bennett, Jr. (argued), Bozeman, for appellant. Drysdale &amp; Sabo, Douglas R. Drysdale (argued), Bozeman, for respondent. DOYLE, Justice. This is an appeal from a judgment and verdict of $22,060.00 awarded for personal injuries arising out of a slip and fall in defendant's grocery store. The case was tried February 9, 1966, before the Honorable Jack D. Shanstrom, Judge of the Sixth Judicial District. Error is specified in the instructions given and refused and for failure to grant defendant's motions for directed verdict, and for judgment. Respondent, Ingvall Regedahl, arrived at appellant's grocery store at about 8:00 A.M., September 29, 1961, in the course of his ordinary duties of delivering milk. He followed the practice normal for himself and other delivery men of using the delivery door at the back of the grocery store building. The Store's delivery door opened onto a ramp on the inside which was about nine feet long, five feet wide and descended down into the store at a slope of fifteen to eighteen degrees. The walk-in cooler which was to be stocked with milk had a door located approximately twelve feet beyond the lower end of the ramp. Respondent walked directly into the cooler via the back door and the ramp to determine the amount of milk required to be stocked. He returned to his delivery truck by the same route taking with him a hand cart belonging to the store. Respondent slipped at the top of the ramp as he attempted to reenter the store and fell with his load of milk landing on top of him and was injured. The weather at the time was bright and clear and there was a skiff of new dry snow which had fallen the previous night. The ramp in question was periodically coated with an abrasive substance to increase traction but there was conflicting evidence as to the amount of abrasive remaining at the time of the accident. Testimony given at the trial placed the store manager, James S. Ricci, at the foot of the ramp in front of the cooler door checking deliveries at the time of the injury. Other testimony showed that Edward M. Connelley, Jr., another dairy deliveryman, had slipped on the ramp just prior to the time the respondent slipped and fell and had informed Mr. Ricci that the ramp was slippery. The complaint alleged that the ramp was in a dangerous condition in that it was poorly lit, excessively steep, worn slick, smooth and covered with a slippery substance. It was further alleged that the defendant gave the plaintiff no warning of the dangerous condition. Most of appellant's assignments of error in the instructions given and refused can be consolidated into the single legal question of the duty of the defendant-appellant, Safeway Stores, Inc., (hereinafter called Safeway). The remaining assignments of error deal with instructions which were refused because their substance was contained *337 in other instructions given or because they were so clearly improper that they raise no questions of law which merit discussion herein. The instruction given at the trial relating to the duty owed by Safeway was Montana Jury Instruction Guide (MJIG) instruction 120.4 pertaining to invitees. The relevant portion of MJIG 120.4 which was given as Court's Instruction 24, reads as follows: "The owner (or occupant) of a place of business who has extended an invitation, express or implied, owes to all invitees who come upon the premises the legal duty to exercise ordinary care under the circumstances to keep the premises in a condition reasonably safe for use by the invitee in every reasonable pursuit of any purpose included within the invitation. "If there is danger attending the invitee's use of the premises and such danger arises from conditions not readily apparent to the senses of the ordinary person, and if the owner (or occupant) has actual knowledge of such conditions, or if such conditions would have been known to an owner (or occupant) in the exercise of ordinary care under the circumstances, the law then imposes upon the owner (or occupant) the duty to give the invitee reasonable warning of such danger. "But the responsibility of the owner (or occupant) of the premises is not absolute; it is not that of an insurer. The owner (or occupant) is not charged with knowledge of defects which reasonable inspection would not disclose; and the owner (or occupant) is entitled to assume that the invitee will see and observe that which would be obvious through reasonable expected use of an ordinary person's senses. There is no duty to give the invitee notice of an obvious danger." Safeway contends that this instruction is contrary to the decisions of this court because it would allow recovery even though the dangerous condition is open and obvious and even though there has been no showing that the defendant's knowledge of the condition is superior to that of the claimant. We cannot agree with this interpretation of the instruction. The above-quoted instruction contains two well established duties owed by occupiers of land to their invitees. First, he must use ordinary care to keep his premises reasonably safe. Second, he must warn invitees of hidden dangers if he knows or should know of their existence. Clark v. Worrall, 146 Mont. 374, 406 P.2d 822; Kerns v. F.W. Woolworth Co., 138 Mont. 249, 356 P.2d 127; Ahlquist v. Mulvaney Realty Co., 116 Mont. 6, 152 P.2d 137; Robinson v. F.W. Woolworth Co., 80 Mont. 431, 261 P. 253; Montague v. Hanson, 38 Mont. 376, 383, 99 P. 1063. The difficulty in applying this law seems to arise when attempting to determine what relationship exists between these two duties. It is clear that both duties are discharged if the owner or occupier gives notice of the danger which is reasonable under the circumstances. Cassaday v. City of Billings, 135 Mont. 390, 340 P.2d 509; Taylor v. Chicago, Milwaukee, St. Paul &amp; Pacific Ry. Co., 142 Mont. 365, 384 P.2d 759; Zimmer v. California Co. (1959 U.S.D.C. 9th Cir) 174 F. Supp. 757. But if no warning is given, it follows that the jury might find liability either for failure to use ordinary care to keep the premises reasonably safe or for failure to warn of hidden danger or both. It may become necessary to consider the duty to warn separately from the duty to keep the premises reasonably safe inasmuch as the duty to warn of hidden dangers might be imposed even as to premises which are considered reasonably safe. There is no duty owed to an invitee with respect to dangerous conditions if, under the circumstances, it would be reasonable to expect that an ordinary person would observe the danger. Clark v. Worrall, supra, 146 Mont. at 380, 406 P.2d at 822. Safeway made no claim that it had warned the respondent. Therefore, the jury was in position to consider the existence of liability on either the ground of breach of the duty to keep the premises reasonably safe or breach of the duty to *338 warn. It would appear that there was sufficient credible evidence to warrant the jury in finding liability on either or both grounds. Evidence concerning the design and condition of the ramp was sufficient to imply that ordinary care was not exercised to keep the premises reasonably safe. Other evidence would have supported the finding that the ramp became slippery after the respondent last used the ramp and that Safeway's manager had knowledge of this fact but did not exercise an existing opportunity to warn the respondent. We observed in McIntosh v. Linder-Kind Lumber Co., 144 Mont. 1, 393 P.2d 782, that the basis of the liability placed on owners or occupiers of land with respect to invitees is their superior knowledge of the condition of the premises. While this is indeed the underlying reason or policy for the liability it is not intended to be the fully articulated rule or final test. At least as it is applied to the facts of this case, the above-quoted instruction correctly states the rules for fixing the liability of owners or occupiers of land to their invitees. Safeway also contends that the court erred in giving an instruction which allowed loss of earnings as an element of damages on the ground that there is no evidence of loss of earnings in the record. The following quotation from the transcript will dispose of this contention. (Direct examination of the respondent.) "Q. Did you stop working that day? A. Yes, I did. "Q. For how long did you stop? A. Seven weeks. "Q. How much were you making at this time? A. Around sixty-eight dollars and some cents. "Q. Did you work at all during the next seven weeks following September 29, 1961? A. No." Finding no error in the instructions it follows that the motions for directed verdict and judgment notwithstanding the verdict were properly refused. The judgment is affirmed. JAMES T. HARRISON C. J. and ADAIR, JOHN C. HARRISON and CASTLES concur.

March 20, 1967

7214898c-df63-473c-889b-ccb334f43de7

STATE v CAVANAUGH

N/A

83-021

Montana

Montana Supreme Court

PJo. 83-21 I N THE SUPREME COURT O F THE STATE O F M O N T A N A 1983 T I E STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- JAMES CAVANAUGH, Defendant and Appellant. APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County of Cascade, The Honorable J o e l G. Roth, Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Steven E. Hagerman, Great F a l l s , Montana For Respondent : Won. Mike Greely, Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, Great F a l l s , Montana Submitted on B r i e f s : August 25, 1983 Decided: Deceinber 23, 1983 F i l e d : DEC 2 a 1983 Clerk Mr. Justice Frank B. Morrison, Jr. d.elivered the Opinion of the Court. Defendant James Cavanaugh appeals the November 22, 1982, order of the District Court of the Eighth Judicial District, Cascade County, denying his petition for post-conviction relief. On August 9, 1977, Cavanaugh and co-defendant Sam Spicer were each charged by information with four felony offenses: count I, deceptive practices; count 11, attempt (deliberate homicide); count 111, aggravated kidnapping; and count IV, aggravated assault. Pursuant to a plea bargaining agreement, each defendant pled guilty on August 15, 1977, to counts I11 and IV. Once the guilty pleas were accepted, and, upon notion of the county attorney, counts I and I1 against both defendants were dismissed. Cavanaugh and Spicer were each sentenced on September 19, 3.977 to 100 years for aggravated kidnapping and to 20 vears for aggravated assault, the maximum penalties for each offense. Further, pursuant to section 46-18-202 (2) , MCA, enacted July 1, 1977, the trial judge ordered that Cavanaugh and Spicer were both ineligible for parole or for participation in the prisoner furlough program. Co-defendant Spicer has since died. James Cavanaugh and James Mesler thereafter filed an ori..gina.l application for a writ of habeas corpus in this Court, challenging the constitutionality of section 46-18-202(2), MCA, on several grounds: equal protection; due process; vagueness; and as being an unlawful d-elegation of legislative authority. We held the statute to be constitutional on August 14, 1980. See Cavanaugh and Mesler v. Crist (1980), 615 P.2d 890, 37 St.Rep. 1461. Now, in this appeal. of the trial court's denial of his petition for post-conviction relief, Cavanaugh asserts that his pleas of guilty to the aggravated kidnapping and aggravated assault charges were not made knowingly, voluntarily, intelligently or with any understanding of their consequences for two reasons: 1. He was not told that pursuant to section 46-18-202(2), MCA, he might be denied parole or participation in the furlough program; and 2. He did not understand. what was transpiring when he pled guilty. As we are persuaded by reason one, we find it unnecessary to address reason two. Defendant was denied parole and participati-on in the furlough program pursuant to section 46-18-202(2), MCA, which states in relevant part: " (2) Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant be ineligible for parole and participation in the supervised release program while serving his term." It is undisputed that the possibility of being ineligible for parole or participation in the furlough program was not mentioned by either the tria.1 judge or the county attorney until the sentencing hearing. Cavanaugh testified at his post-conviction hearing that he had never been told by his attorney or anyone else, that if he pled guilty, he might be denied parole. Cavanaugh's original attorney testified at that same hearing that he did not recall whether he informed Cavanaugh of that possibility. Despite extensive efforts to do so, that attorney was unable to locate Cavanaugh's case file. There is no evidence contradicting defendant's claim that he was first informed of the possibility that he might be denied parole at the sentencing hearing. Section 46-16-105(1), MCA states: "Plea of guilty. (1) Before or during trial, a plea of guilty may be accepted when: (a) the defendant enters a plea of guilty in open court; and (b) the court has informed the defendant of the consequences of his plea. and of the maximum penalty provided by law which ma.y be imposed upon acceptance of such plea." Defendant pled guilty in open court after being informed of the maximum penalties for each count. However, defendant contends that failure to inform him prior to the entry of his guilty pleas of the possibility that he might be denied parole constitutes failure to inform him of a consequence of his plea. Therefore, the tria.1 court should not have accepted his guilty pleas and he must now be permitted to withdraw them, pursuant to section 46-16-105(2), MCA: "(2) At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." We agree. The consequences of one's guilty plea includes, among many other things, the sentence which accompanies such a plea. "The restriction of parole and furlough program eligibility is 'a part of the sentence' by the express terms of [section 46-18-202(2), MCA] . . . " Cavanaugh v. Crist, 615 P.2d at p.893, 37 St.Rep. at p. 1464. Such a restriction has a great and profound effect upon the ultimate sentence served by a defendant. ". . . the unavailability of parole directly affects the length of time an accused will have to serve in prison. If parole is unava.ila.hle, the mandatory period of incarceration under a given sentence is three times as long . . . It would seem that such a major effect on the length of possible incarceration would have great import- ance to an accused in considering whether to plead guilty. "The danger is that the accused makes his decision to plead guilty underestimating by a factor of three the risk of prolonged mandatory incarceration." Bye v. United States (2nd Cir. 1970), 435 F.2d 177 at p . 180. Here, defendant knew when he pled guilty that he could be sentenced to a maximum of one-hundred years for aggravated kidnapping and twenty years for aggravated assault. He did not know that he might be found ineligible for parole. A flat sentence of one-hundred years is far different than the sentence anticipated. by a defendant who knows he might be sentenced to one-hundred and twenty years, but presumes that parole will be possible. Because of the disparity between the anticipated and actual sentence, the plea ba.rgain into which defendant thought he was entering was not the plea bargain accepted by the trial judge. Federal trial courts are required to allow a defendant to withdraw his guilty plea if the trial judge refuses to accept the remainder of the plea bargain. Federal Rule of Criminal. I?rocedure 11 (e) (4) provides : "(4) Rejection of a plea agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court . . . that the court is not hound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." The American Law Institute adopted a nearly identical rule : "Sentencing Following Plea. "If, at the time of sentencing, the court for any reason determines to impose a sentence more severe than that provided for in a plea agreement between the parties, the court shall inform the defendant of that fact and shall inform the defendant that the court will entertain a motion to withdraw the plea . . ." The ALI, A Model Code of Pre-?xraignment Procedure, Section 350.6 (Adopted May 20, 1975). The American Bar Association a.lso agrees. The ABA Standards Relating to The Administration of Criminal Justice: The Function of the Trial Judge, section 4.1 (c) , (1974) , provides: "Role of the judge in plea discussions and plea agreements. " (c) If the plea agreement contemplates the qranting of charge or sentence concessions by the trial judge, he should: " (i) unless he then and there grants such concessions, inform the defends-nt as to the role of the judge with respect to such agreements, as provided in the following subparagraphs; " (ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions; and " (iii) permit withdrawal of the plea (or, if it has not yet been a.ccepted, withdrawal of the tender of the plea) in any case in which the judge determines not to grant the charge or sentence concessions contemplated by the agreement." And, The ABA Standards Relating to the Administration of Criminal Justice: Pleas of Guilty, section 3.3 (b) (19741 , states: "Responsibilities of the trial judge. I' (b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the re~resentations ma-de to him. If the trial -- - judge conc;rs, but later decides -- that the final disposition should not include the charge or sentence concessions~contem~lated bv the lea L agreement, he shall so advike the z f e n ~ n t and then call uFon the defendant to either affirm or -- withdraw his ~ l e a of auiltv ornolo contendere." 2 - - - 2 - - (Emphasis addeh. Finally, the concept of "fairness" has been added by the United States Supreme Court to the "voluntary and knowing" test used to determine whether a defendant should be allowed to withdraw a guilty plea. Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. We therefore adopt the previously discussed standards of the American Bar Association and F.R.Civ.P. ll(e)(4), and require the trial iudge, who accepts a plea but rejects any other portion of the plea bargain, to afford the defendant the opportunity to withdraw his guilty plea and enter a plea of not guilty. The decision in this case shall have prospective application only. The decision applies to defendant James Cavanaugh and all who are sentenced after the effective date of this decision. In support of this prospective holding, see State v . Campbell (1979), 182 Mont. 521, 597 P.2d 1146. With respect to defendant Cavanaugh, more than six years have elapsed since sentencing. It would be unfair to the state to allow withdrawal of the plea if crucial witnesses are not now available. Therefore, on remand we direct that the state can elect to have (1) defendant sentenced in accordance with the plea bargain or (2) defendant withdraw his plea of guilty with the state being allowed to revive the dismissed charges. Such a procedure has been followed bv other courts. See State v. Williams (1971) , 107 ~ r i z . 421, 489 P.2d 231. The order of the District Court denying defendant ' s petition for post-conviction relief is reversed. This cause is remanded to the District Court for further proceedings in conformance with this opinion. We concur: %4 d # & 4 Chief Justick Justices Mr. Justice Daniel J. Shea., concurring in part and dissenting in part: 1 join in the opinion insofar as we have now adopted meaningful standards for permitting a defendant to withdraw a guilty plea if the district judge does not abide by the plea bargain. Justice requires this. I do not, however, agree that the decision should have prospective application only, nor do I believe that the State should have the option of going along with the plea bargain or going to trial on the charges that were dismissed. Due process requires that defendants be permitted to withdraw their pleas where they were not given the chance to withdraw their plea on the trial court refusing to go along with the plea bargain. Due process also requires that the right to withdraw that plea should not depend on the fortuitious circumstances of whether the plea was entered before or after our decision. Nor do I agree that the State should have the option on remand of dictating to defendant whether he will go to trial again or whether he must content himself with the benefit of the plea bargain. It is not defendant who caused the procedural situation lacking in due process, and it should not be the defendant who must await his fate at the hands of the prosecution. Rather, fairness requires that the choice of obtaining the benefit of the plea bargain or going to t j trial on revived charges, should belong to the defendant. Mr. J u s t i c e L.C. Gulbrandson d i s s e n t i n g . I r e s p e c t f u l l y d i s s e n t . I n my v i e w , t h e m a j o r i t y h a s d e p a r t e d f r o m l o n g s t a n d i n g p r a c t i c e and h a s adopted a new Rule of Criminal Procedure. The m a j o r i t y d e c l a r e s , "We t h e r e f o r e adopt t h e p r e v i o u s l y d i s c u s s e d s t a n d a r d s o f t h e American Bar A s s o c i a t i o n on F.R.Civ.P. l l ( e ) ( 4 ) , and r e q u i r e t h e t r i a l judge, who a c c e p t s a p l e a , b u t r e j e c t s any o t h e r p o r t i o n of t h e p l e a b a r g a i n , t o a f f o r d t h e o p p o r t u n i t y t o withdraw h i s g u i l t y p l e a and e n t e r a p l e a of n o t g u i l t y . " The a d o p t i o n of t h i s r u l e g o e s f a r beyond t h e i s s u e r a i s e d on t h i s appeal. Counsel f o r d e f e n d a n t Cavanaugh h a s n o t contended t h a t t h e s e n t e n c i n g judge r e j e c t e d any p o r t i o n of t h e p l e a b a r g a i n and h a s n o t argued o r suggested t h a t t h e above s t a n d a r d s be adopted by t h i s Court. The s o l e i s s u e was "That D e f e n d a n t ' s G u i l t y P l e a was n o t done v o l u n t a r i l y , i n t e l l i g e n t l y , knowingly and w i t h an u n d e r s t a n d i n g of t h e consequences of h i s p l e a and t h e r e f o r e should be vacated." The main t h r u s t of d e f e n d a n t ' s argument is t h a t he was n o t t o l d , u n t i l j u s t p r i o r t o s e n t e n c i n g , t h a t t h e s e n t e n c i n g judge could d e c l a r e him i n e l i g i b l e f o r p a r o l e , o r f o r t h e p r i s o n f u r l o u g h system, and t h e r e f o r e , h e d i d n o t understand t h e consequences o f h i s g u i l t y p l e a . S e c t i o n 46-16-105, MCA, s t a t e s t h a t t h e p l e a o f g u i l t y may be a c c e p t e d when t h e c o u r t h a s informed t h e d e f e n d a n t o f t h e c o n s e q u e n c e s o f h i s p l e a . O t h e r c o u r t s h a v e d i s t i n g u i s h e d between d i r e c t consequences of t h e g u i l t y p l e a , of which t h e d e f e n d a n t must be t o l d , and t h o s e c o l l a t e r a l consequences of t h e g u i l t y p l e a , of which t h e d e f e n d a n t need n o t be t o l d i n o r d e r f o r h i s g u i l t y p l e a t o be v a l i d . Durant v. United S t a t e s (1st C i r . 1 9 6 9 ) , 410 F.2d 689; Spradley v. United States (5th Cir. 1970), 421 P.2d 1043. Ineligibility for parole was not a direct and necessary corollary to Cavanaugh's guilty plea. Ineligibility for parole was a "consequence" of the serious nature of the crimes Cavanaugh committed and his prior record of five felony and ten misdemeanor convictions as set forth in the pre-sentence report. Parole and participation in the supervised release program, both of which relate to punishment, are pr ivileges--matters of grace, not rights. Lopez v . Crist, ( [ f o n t . 1978), 578 P.2d 312, 314, 35 St.Rep. 622, 624; Petition of Hart (1965), 145 Mont. 203, 206, 399 P.2d 984, 985. When Cavanaugh earlier challenged the constitutionality of Section 46-18-202(2), MCA, this Court answered: "The district judges did not deprive petitioners of a right when they decided that petitioners should be imprisoned with no possibility of parole or participation in the furlough program. The district judges withheld grace. 'I Cavanaugh v. Crist (Mont. 1980), 615 P.2d at 895, 37 St.Rep. at 1466. Cavanaugh was told of the maximum possible punishment, but argues that he should have been told that maximum meant maximum and that there was a possibility that legislative grace of actually serving a lesser amount of time might be withheld. The issue presented by Cavanaugh's appeal is similar to that addressed in State v . McGuire, No. 82-156-M (D. Mont. filed April 27, 1983.) In McGuire, the question presented to the Court was whether a conviction should be set aside because petitioner was unaware that his prior conviction might cause him to be designated as a dangerous offender and that such a designation would affect his eligibility for parole. The McGuire Court stated that: "The law is c l e a r t h a t a v a l i d p l e a of g u i l t y r e q u i r e s t h a t t h e d e f e n d a n t be made a w a r e o f a l l ' t h e d i r e c t c o n s e q u e n c e s o f h i s p l e a . ' Wade v . Coiner ( 4 t h C i r . 1 9 7 2 ) , 468 F.2d 1059, 1060. By t h e same token, it is e q u a l l y w e l l s e t t l e d t h a t , b e f o r e p l e a d i n g , t h e d e f e n d a n t need n o t be a d v i s e d of a l l c o l l a t e r a l consequences of h i s p l e a , o r , a s one C o u r t h a s p h r a s e d it, of a l l ' p o s s i b l e a n c i l l a r y o r c o n s e q u e n t i a l r e s u l t s w h i c h a r e p e c u l i a r t o t h e i n d i v i d u a l and which may flow from a c o n v i c t i o n of a p l e a o f g u i l t y , . . . ." I d . a t 3 , n. 1. - "The q u e s t i o n o f t h e d e s i g n a t i o n o f t h e d e f e n d a n t a s dangerous o r nondangerous d o e s n o t a r i s e u n t i l t h e t i m e o f s e n t e n c i n g . See S e c t i o n 46-18-404, MCA. ~ d . - a t 3, n. 2 . " The McGuire Court went on t o s t a t e : "The problem o f how a s t a t e s h a l l d e s i g n a t e o f f e n d e r s a n d w h a t e f f e c t t h a t d e s i g n a t i o n s h a l l have upon p a r o l e is s o l e l y a q u e s t i o n f o r t h e s t a t e l e g i s l a t u r e and t h e s t a t e c o u r t s . There is s i m p l y no problem of f e d e r a l c o n s t i t u t i o n a l law." - I d . a t 4. The p o s s i b i l i t y o f i n e l i g i b i l i t y f o r p a r o l e , l i k e t h e p o s s i b i l i t y of d e s i g n a t i o n a s a dangerous o f f e n d e r , is a d i s c r e t i o n a r y s e n t e n c i n g a l t e r n a t i v e . They a r e n o t d i r e c t consequences o f t h e g u i l t y p l e a and t h e r e f o r e t h e c o u r t s h o u l d n o t be r e q u i r e d t o inform t h e d e f e n d a n t o f t h e s e p o s s i b i l i t i e s a t t h e e n t r y o f t h e g u i l t y p l e a . I would a f f i r m t h e d e c i s i o n o f t h e D i s t r i c t Judge, and would d e f e r t o t h e L e g i s l a t u r e on t h e i s s u e of a d o p t i n g t h e d e s c r i b e d s t a n d a r d s . ~ u s t i c e / I j o i n w i t h Mr. J u s t i c e L.C. Gul randson i n t h e f o r e g o i n g d i s s e n t . 4

December 23, 1983

8a078004-866b-43e6-8c6e-f98e553087a4

Gransberry v. State

423 P.2d 853

11270

Montana

Montana Supreme Court

423 P.2d 853 (1967) Robert GRANSBERRY, Petitioner, v. The STATE of Montana and Edward Ellsworth, Jr., Warden of the State Penitentiary of The State of Montana, Respondents. No. 11270. Supreme Court of Montana. Submitted January 6, 1967. Decided February 21, 1967. *854 William F. Crowley (argued), Missoula, for petitioner. Forrest H. Anderson, Atty. Gen., James R. Beck, Asst. Atty. Gen. (argued), Helena, Gene B. Daly, County Atty., Great Falls, for respondents. PER CURIAM: This is an application for post conviction remedy brought by an inmate of the state prison by aid and assistance of counsel for the Montana Defender Project. Following an ex parte hearing an alternative order to show cause was issued by this court on December 20, 1966. An answer and return was filed by the Attorney General and the County Attorney of Cascade County on behalf of respondents. The matter was argued before this court on January 6, 1967. On November 16, 1960, an information numbered 4986 was filed in the District Court of the Eighth Judicial District, Cascade County, charging Robert Gransberry with the crime of taking and using an automobile without the consent of the owner. The information charged that on or about the 15th day of November, 1960, he did: "* * * commit the crime of taking and using an automobile without the consent of the owner * * *." The defendant was arrested and brought before the District Court, the Honorable R.J. Nelson, judge presiding, on November 21, 1960, for arraignment. The arraignment was continued to November 23, 1960, when the court appointed attorney Robert Merrill to represent Gransberry. On November 30, 1960, the defendant was again brought before the court for continuation of the arraignment and pleaded "Not Guilty" to the charge. Trial was set for December 21, 1960. On December 2, 1960, a motion was made and permission of the court was granted for the filing of another information, this one charging Gransberry with the crime of grand larceny together with prior convictions of five enumerated felonies. The charging part of the information alleged that Gransberry, on or about the 15th day of November, 1960, did: "* * * commit the crime of grand larceny, in that the said Robert Gransberry, then and there being, then and there did, wilfully, wrongfully, unlawfully, and feloniously take, steal, and carry away a 1954 Ford 2-door, bearing 1959 license No. 2-7666, of the value of more than Fifty and no/100 Dollars ($50.00), then and there the property of Gordon M. Helleshein, of Belt, Montana, with the intent then and there in him, the said Robert Gransberry, to deprive the true owner of the said property, and to appropriate the same to his own use." This information was filed December 5, 1960, the following Monday. The court records indicate that the motion requesting permission to file was made and permission was granted ex parte with neither the defendant nor his counsel present. On December 5, 1960, Gransberry was arraigned on the new information, No. 4992, and, on motion of his counsel, the first information, No. 4986, was dismissed. On December 7, 1960, Gransberry pleaded "Not Guilty" to the charge of grand larceny and "Not True" to the five prior convictions alleged in information *855 No. 4992. His trial was set for the same date originally set for trial on the charge of taking and using, No. 4986. This setting was vacated when the Honorable R.J. Nelson was disqualified and the case continued to the January term. Gransberry was tried on February 27 and 28, 1961, after changing his plea to the allegations of prior convictions to "True." He was found guilty and sentenced to 25 years in the state prison. The petitioner, Robert Gransberry, contends that the filing of the second information, No. 4992, was in truth and fact an amendment in a matter of substance of the first information, No. 4986, and, as such, a violation of his rights under section 94-6207, R.C.M. 1947, which provides: "Information may be amended. An information may be amended in matter of substance or form at any time before the defendant pleads, without leave of court. The information may be amended at any time thereafter and on the trial as to all matters of form, at the discretion of the court, where the same can be done without prejudice to the rights of the defendant. No amendment must cause any delay of the trial unless for good cause shown by affidavit." It is contended that although the second information was not entitled as an amended information and was assigned a different number by the clerk of court, it was filed in the same way, served the same office, and had the effect of amending the statement of the offense then pending before the court. It alleged the same taking of the same automobile belonging to the same owner on the same day in Great Falls, Cascade County, Montana. It was filed while the first information was still pending, and no attempt was made by the state to dismiss the first information. The second information was assigned the same trial date previously assigned to the first. Now then, the state argues that the filing of the second information was not an amendment of the first information; that the treatment and effect was that a new and completely different information was had. Under section 94-6207, R.C.M. 1947, it does not make a significant difference if the second information be (a) an amendment in the matter of substance or (b) an entirely new information. After a plea to the information, § 94-6207 prohibits any amendment in the information as to substance. However, § 94-6207 does not prohibit dismissal of the information and a filing of a new information. We need not determine whether the information No. 4992 was a new information and not an amendment. Information No. 4992 changed the grade of the offense (from taking and using an automobile without the consent of the owner to grand larceny) and the maximum penalty (from five years in the state prison to a possible life term). Section 94-3305, R.C.M. 1947, is a unique statute in that the nature of the crime, whether it is felony or misdemeanor, is not determined until the sentence is imposed. However, section 94-2704, R.C.M. 1947, is a felony. In State v. Fisher, 79 Mont. 46, 49, 51, 254 P. 872, 873, 874, a situation very similar to this case was before this court. There an information alleging violation of the state liquor laws had originally charged a misdemeanor. It was amended after defendant's plea of "Not Guilty" to include allegations of a prior conviction which changed the offense to a felony. We stated: "The offense charged after amendment is a felony, punishable perforce by imprisonment in state prison. It charged an entirely different character of crime. Crimes are divided into felonies and misdemeanors. The two are essentially different in grade and penalty. A felony and a misdemeanor are two distinct offenses. By the amendment, the defendant was charged with a different offense from that originally charged. If this amendment is not a matter of substance, then there is no substantial difference between a misdemeanor and a felony, which we know is not true." "The cases holding that an amendment which charges a crime different in grade, *856 character, or penalty from that first charged is one of substance are almost innumerable * * *." The case of State v. Knight, 143 Mont 27, 30, 387 P.2d 22, 23, involved the amendment of an information after plea to include allegations of prior conviction. This court commented as follows: "In our view the amendment was clearly one of substance since it increased the minimum penalty, in that section 94-4303, R.C.M. 1947, provides imprisonment for a term not less than one year, and section 94-4713, R.C.M. 1947, provides that if the second offense is such that upon a first conviction the term of sentence would exceed five years, as in robbery since there is no maximum, the minimum term is then ten years." Thus, under the holdings in the Fisher and Knight cases, supra, the filing of information No. 4992 might have been an amendment of information No. 4986; but in view of our holding hereafter we shall assume that it was an amendment. We wish to make it clear that what we have just stated does not prevent the county attorney from availing himself of section 94-9505, R.C.M. 1947, by having the first information dismissed and then filing a second information. The state further contends that "petitioner has waived any right he may have had to object to the so-called amendment." The state points out "that the petitioner did not move to dismiss the second information nor did he demur to it, but rather he entered a plea and moved to dismiss the first information. There was no objection entered to the information at the trial, nor did the petitioner raise this question in his appeal to the Montana Supreme Court. State v. Gransberry, 140 Mont. 70, 367 P.2d 766." The state's contention concerning waiver is sound. In Treat v. District Court, 122 Mont. 249, 200 P.2d 248, we held that the prohibitions of section 94-6207 may be waived by an affirmative action in open court. At all stages of the proceedings in the district court, the petitioner was represented by counsel. In fact, as pointed out by the state, it was petitioner's own counsel who moved to dismiss the first information. Petitioner's counsel was well aware of the possible objection he could have made to the second information. He made no such objection. Finally, we note that petitioner has made no allegation of incompetency of counsel who was appointed to represent him. Petitioner has made reference to the case of State ex rel. Biebinger v. Ellsworth, 147 Mont. 512, 415 P.2d 728. However, there is a fundamental distinction between this case and the Biebinger case, supra, and that is the fact that Biebinger was without counsel in his proceedings before the district court. Biebinger had no one to advise him of his rights. Petitioner, on the other hand, had the advice of court appointed counsel. We come to the final point that must be discussed in this case. Before seeking relief in this court, petitioner sought relief from the district court of the Eighth Judicial District of the State of Montana, Cascade County the district court in which he had been tried, convicted, and sentenced. The district judge, the Honorable Truman G. Bradford, entertained the petition and had a full hearing on it. He entered a judgment which made three rulings: (1) He ruled that the petitioner was correct in his assertion that the second information was merely an amendment of the first and that the amendment was prohibited by section 94-6207, R.C.M. 1947. (2) He held that the petitioner had waived his right to object to the second information. (3) He ruled that the district court of the Eighth Judicial District did not have jurisdiction to entertain the petition for writ of habeas corpus since petitioner was not being held in the Eighth Judicial District as required by Article VIII, Section 11 of the Constitution of the State of Montana. We have discussed the first two rulings which the district court made and have either assumed or found them to be correct. *857 It is the third ruling of the district court which we believe is in error. Article VIII, Section 11 of the Constitution of the State of Montana provides for the district court's jurisdiction and reads in part: "* * * Said courts and the judges thereof shall have power also to issue, hear and determine writs of mandamus, quo warranto, certiorari, prohibition, injunction and other original and remedial writs, and also all writs of habeas corpus on petition by, or on behalf of, any person held in actual custody in their respective districts. * * *" Thus, the district court has the power to issue "other original and remedial writs." In the instant case the petition sought a writ of habeas corpus or other appropriate post conviction remedy. But the fact remains that the petition in essence sought to remedy what petitioner considered to be an error that had been committed by the district court of the Eighth Judicial District. For several years now, this court has been receiving petitions from inmates of the state prison concerning alleged errors that occurred during the legal proceedings which eventually lead to their incarceration at the state prison. We have referred many of these petitions directly to the district court in which the legal proceedings took place. See for instance Petition of Darby, 146 Mont. 142, 404 P.2d 884; Petition of Gregg, 146 Mont. 551, 405 P.2d 218; Petition of Jones, 146 Mont. 547, 405 P.2d 771; and Petition of Tooker, 146 Mont. 35, 403 P.2d 204. Many of these petitions cannot be properly considered without reference to the district courts since they contain issues of fact that can be best determined at the trial court level. The district court has the jurisdiction, under Article VIII, Section 11, Constitution of the State of Montana, to consider petitions from the inmates of the state prison, seeking post conviction relief if the inmate was sent to prison from the judicial district in which he is seeking such post conviction relief. Since we have found that petitioner waived his right to object to the second information, we deny the application for post conviction relief.

February 21, 1967

e18aafa1-7673-476b-bfb0-a8648ff00f98

Kostbade v. Metier

432 P.2d 382

11249

Montana

Montana Supreme Court

432 P.2d 382 (1967) Howard KOSTBADE and Christine Kostbade, Plaintiffs and Respondents, v. Earl METIER, Dave Rigler and Bryan T. Lovely, Members of the Board of Park County Commissioners, of Park County, Montana, George Stebbins, Park County Rroad Foreman and Jack D. Shanstrom, County Attorney, Park County, Montana, Defendants and Appellants. No. 11249. Supreme Court of Montana. Submitted September 15, 1967. Decided October 3, 1967. *383 Byron Robb (argued), Livingston, Arnold Berger (argued), Billings, for appellants. Arnold Huppert, Jr. (argued), Livingston, Joseph B. Gary (argued), Bozeman, for respondents. CASTLES, Justice. This is an appeal from a judgment for plaintiffs entered upon findings of fact and conclusions of law. This court previously heard the matter on April 11, 1967, and granted rehearing on June 6, 1967. *384 In June of 1964, the Commissioners of Park County, appellants here, issued a notice to respondents, husband and wife, owners of private property, requesting them to remove certain gates located on a certain road, described hereinafter. This action was commenced by respondents on June 30, 1964, to determine whether the road was public or private, and to enjoin further interference by the County Commissioners. Testimony was heard by District Judge George J. Allen on September 9, 1964. Judge Allen died in December 1964, without making a determination of the cause. Jurisdiction was thereafter assumed by Judge W.W. Lessley, who entered findings on July 15, 1966, and judgment for plaintiffs, finding that the road was private, on July 26, 1966. Due to the untimely death of Judge Allen who heard the testimony, Judge Lessley was called in. He did not actually observe the witnesses, their demeanor, their candor or lack of candor. Judge Lessley reached his decision solely on the basis of the transcript and exhibits, the same documents that are before this court. This court is in just as good a position as the trial court was to make findings solely from the record. Thus, the rule that this court will not ordinarily disturb the findings of the trial court where there is conflict in the evidence does not necessarily apply in this case. Where the reason of a rule ceases, so should the rule. R.C.M. 1947, § 49-102. In this instance we are free to make our own examination of the entire case and to make a determination in accordance with what we find. The respondents are the owners of certain land located in the southern part of Park County, Montana, having purchased these lands in 1958. The road which is the subject of this action runs along Mol Heron Creek through this property. It was originally constructed by one Taylor sometime around the turn of the century and terminates at the site of the old Taylor homestead. There is some evidence that a road of sorts goes beyond this point but it has been conceded that beyond the old Taylor homestead any road which may exist is private so we are not now concerned with anything beyond this point. In 1938, Roy Armstrong, a predecessor in interest of respondents, constructed a gate across the road. Throughout the transcript this gate is called the "top of the hill gate" and it will be called the same here. This gate was sometimes closed, to keep cattle from drifting down the road, but was always left unlocked. In 1964, respondents constructed two gates across the road which they locked. These gates denied access to most of the road and were the impetus of this action to establish the right to maintain them. It was stipulated between the parties that the road was originally private, and that if it were now public, it became so by prescription. That the public may acquire the right by prescription to pass over private land is undisputed and such is the law in Montana. To establish the existence of a public road by prescription it must be shown that the public followed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner. Brannon v. Lewis and Clark County, 143 Mont. 200, 387 P.2d 706; Descheemaeker v. Anderson, 131 Mont. 322, 310 P.2d 587, 63 A.L.R.2d 1153; Peasley v. Trosper, 103 Mont. 401, 64 P.2d 109. This road has followed a definite course over the same strip of land for over 50 years. In 1954 one Melvin Standish, a logger, made some alterations. He widened a curve so that logging trucks could pass and repaired a section washed out by the creek. He did this for his own convenience and not with the permission of the landowner at that time. This improvement of the road without altering its course is not fatal to the establishment of a prescriptive right as the path of the road is unchanged. The road was originally used for buggy and horse-drawn wagons and has through use become suitable for automobiles but the evidence is convincing that it has not changed its course to an appreciable extent. *385 By "continuous and uninterrupted use" is meant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned by the one claiming it. Scott v. Weinheimer, 140 Mont. 554, 374 P.2d 91. The record leaves no doubt that the use of this road by the public was continuous until the installation of the two locked gates in 1964. The top of the hill gate did not preclude the public from using the road as it was left unlocked. During the greater part of the year this gate was left open and there is also testimony that the public opened it and passed through during the times that it was closed. There is no evidence that the public, through the county officials or any other way, abandoned any rights it may have acquired to use the road. This court has said that to establish a prescriptive right it must be shown by clear and convincing evidence that the use was adverse and not by permission of the landowner. Peasley v. Trosper, supra; Violet v. Martin, 62 Mont. 335, 205 P. 221. However, the older a road the more difficult it usually is to produce the proof of actual adverse use because the witnesses are usually no longer available. At the trial of this case the history of the early use of the road was brought out as well as it could be. The witness Mickey McDonald testified he first recalled using this same road around 1904 or 1905 and that for over fifty years hunters used the road freely. Anton Stermitz said he had been familiar with the road for as long as he could remember and that the public had used it freely. He was 66 years old at the time of the trial. Dave Rigler testified he had been familiar with the road for over 40 years, that access was never denied to him, and he had always thought it was a public road. Sheriff Albert Nickelson said he had hunted up the road in an automobile in 1928 and had free access. All of these men observed other members of the general public using the road during these early days and there is no evidence at all that any of these people used the road with the permission of the landowner. Respondents produced no evidence showing that the public was ever denied use of the road. The picture is not complete but it does show open and notorious use by members of the public commencing over half a century ago with no showing whatever that the use was permissive. In later years this use has continued. Roy Armstrong, who owned the land from the late 1920's or early 1930's until his death in about 1955, can no longer testify but no less than eight witnesses said that they had free access to the road during the time without ever obtaining his permission. Respondents' immediate predecessor in interest testified that the public used the road freely when he owned the land and that he considered it a public road. George Stebbins, now Park County Road Foreman, testified that he personally maintained the road as a county employee from 1940 to 1947. He was ordered to perform this work by Roy Armstrong who during that time was both the owner of the land over which the road passes and a County Commissioner. The presumption is that official duty has been regularly performed, R.C.M. 1947, § 93-1301-7(15); so, in the absence of a showing to the contrary, this work must be considered as having been done by the county acting through its officers. Documentary evidence and testimony was introduced showing periodic maintenance of the road by the county in succeeding years. Witnesses for respondents testified that they had not seen county equipment on the road but admitted that such maintenance could have taken place. Since 1953 the period of adverse user required to establish a prescriptive right has been 5 years. R.C.M. 1947, §§ 67-1203, and 93-2504. Between 1895 and 1953 the period was 10 years. The evidence is convincing that the public used this road continuously for at least 50 years prior to the respondents' installation of the two locked gates in 1964. Use of the character involved here raises a presumption that the use was adverse, under claim of right and sufficient to *386 establish a public highway by prescription. State v. Auchard, 22 Mont. 14, 55 P. 361; Smith v. Zimmer, 45 Mont. 282, 125 P. 420; Scott v. Weinheimer, supra. Opposing this presumption that the road is public is the fact of the "top of the hill gate." The fact that a road has been barred by gates to be opened and closed by the parties passing over the land has always been considered as strong evidence of a mere license to the public to pass over the designated way. Maynard v. Bara, 96 Mont. 302, 30 P.2d 93; Peasley v. Trosper, supra; Descheemaeker v. Anderson, supra. A close examination of the facts of this particular case, however, reveals that this gate was not constructed or maintained in such a way as would show permissive use of the road. The gate is part of a drift fence constructed in 1938 to control cattle. It was never locked, and was only closed during the summer. Its purpose was not to control traffic on the road and it appears that it did not in fact hinder public use of the road. The county did not stop its maintenance work at the gate but continued on through it to the old Taylor homestead. The road was in use by the public for 25 or more years before the construction of the gate and this use continued virtually unchanged for 26 years after it was built. The evidence of this one gate, admittedly built not to stop people but cattle, is not enough standing alone to rebut the presumption established by such long public use. Respondents have shown that no reduction was made in their taxes because of the road across their land. In Montana this fact is immaterial to the establishment of a way by prescription. Brannon v. Lewis and Clark County, supra. Appellants claimed in their briefs and on oral argument that this action was not properly brought because an injunction was prayed for. We find it unnecessary to examine this point, as the issue of public road versus private is, by the facts and by stipulation of counsel, the one main issue of the case; and it was properly joined at trial and on appeal. It is on this issue that we have based our decision. Having thus reconsidered all of the law and evidence we find that the road in question has become a public road by prescription. The judgment of the lower court is reversed. JAMES T. HARRISON C. J., and HASWELL, ADAIR and JOHN CONWAY HARRISON concur.

October 3, 1967

e261bb09-e00a-4351-b1f4-ee9858100661

Stevens v. Waldorf-Hoerner Paper Co.

425 P.2d 832

11086

Montana

Montana Supreme Court

425 P.2d 832 (1967) Richard A. STEVENS, Plaintiff and Appellant, v. WALDORF-HOERNER PAPER PRODUCTS COMPANY, a Corporation, and Missoula Cartage Company, Inc., a Corporation, Defendants and Respondents. No. 11086. Supreme Court of Montana. Submitted March 6, 1967. Decided April 3, 1967. Petition for rehearing denied April 26, 1967. Lee A. Jordan (argued), Missoula, for appellant. Garlington, Lohn &amp; Robinson, Boone &amp; Karlberg, Sherman V. Lohn and Karl R. Karlberg (argued), Missoula, for respondents. VICTOR H. FALL, District Judge, sitting in place of CASTLES, J. This is an appeal by plaintiff from a judgment entered on a directed verdict in favor of defendants. The plaintiff-appellant is Richard A. Stevens and will be referred to as plaintiff. There are two separate defendants-respondents. Waldorf-Hoerner Paper Products Company, a corporation, (hereinafter called Waldorf-Hoerner) and Missoula Cartage Company, Inc., a corporation, (hereinafter called Missoula Cartage). The only issue raised by this appeal is whether the district court was correct in directing a verdict in favor of each of the defendants at the close of plaintiff's evidence. The facts in this action disclose the following: Waldorf-Hoerner operates a large (by Montana standards) industrial complex some 15 miles west of Missoula. It is engaged in the manufacture of paper and paper products and uses vast quantities of wood in this operation. One gathers that the bulk of the wood so used is hauled to the plant in the form of wood chips which are the by-product of the several saw mills located in the surrounding area. In order to transport the wood chips from the several saw mills to the Waldorf-Hoerner plant, it entered into a contract, the details of which are not pertinent here, with Missoula Cartage to do the hauling. From the record we learn that Missoula Cartage owned the tractors that pulled the large *833 open-bed trucks and that the trucks themselves, wherein the chips were placed, were owned by the defendant, Waldorf-Hoerner. The combination of tractor and truck resulted in an outfit some 55 feet long, 13½ feet high and 8 feet wide, and from pictures introduced in evidence one gathers that the truck bed is not dissimilar in size to the ordinary railroad box car. These large trucks were filled at the source of supply with these wood chips, which were piled in loosely to the very top, sometimes covered with a tarp and then hauled to the Waldorf-Hoerner plant. Upon arrival it is necessary for the driver to drive into the plant, swing past the unloading dock and then back his load in where the front end of the truck is lifted up so that this large load of wood chips is spilled out into a bin and thence conveyed by a conveyor system to the supply pile. It should be noted that when an outfit drives in to unload, the custom and practice was, and is, for the entire tractor and truck to drive past the unloading dock and then back in, and it certainly would be visible to anyone in that immediate area. Not only were these chip hauling outfits large, but also, the evidence is that the motors pulling the same were quite noisy. Immediately over and surrounding the unloading dock there was, and is, a large amount of steel construction made out of, principally, "I" beams and girders. This framework is a part of the basic construction of the Waldorf-Hoerner plant and for the proper maintenance of the same it is necessary that it, from time to time, be painted. Pursuant to the need of proper maintenance, Waldorf-Hoerner employed the B &amp; L Painting Company, an independent contractor, to paint, the "I" beams, scaffoldings and girders just mentioned above and under and between which these large tractors and trucks pass in their unloading operations. Plaintiff was a painter employed by the B &amp; L Painting Company and on August 14, 1962, was 34 years of age. He had learned his trade from his father and stated that he had started painting when he was age 13. On the date in question he had been regularly employed in painting at the Waldorf-Hoerner plant for some four weeks and his particular job was that of a specialist in "high" work. On the morning of the accident, he rode out to the job from Missoula with his foreman, Charles Schmiedke, Jr., in a company pick-up truck. After being admitted to the plant these two went over to the paint shack, changed into their painting clothes, mixed the paint for the day's work and then went over to the tower or scaffolding and framework which is located immediately adjacent to and above the unloading dock described herein. In order to reach the "I" beam and girders, which plaintiff was to work on that day, he used what is called a "bos'n" chair, which is a sort of a swing wherein the workman seats himself and fastens himself in, hooks on a can of paint on each side and by some means attaches his brushes and then, by means of a rope and a series of pulleys, pulls himself up to his place of work. These chairs are in common use for painting in such circumstances and the plaintiff had used this means of reaching his work on many prior occasions. The upper pulleys through which the rope was placed were directly in the center of the driveway wherein these loaded chip trucks were backed to unload their loads. The testimony of the plaintiff is, and it is not contradicted, that he went to the center of the driveway to get into his "bos'n" chair; that in so doing he had his back toward the entrance to the unloading dock and to the lane of traffic which would necessarily be used by any truck backing in to unload. He stated that it takes about a minute to get into the chair and there was further testimony that it would take him some three to four minutes to hoist himself 14 feet so as to be above the top of any incoming truck. During his work he had noticed the coming and going and dumping operations of the chip trucks and was familiar with their presence in the *834 area. At the time in question his foreman and companion climbed to the top of the tower to adjust the upper pulleys, and he saw the entire occurrence. After getting into the chair, plaintiff started to raise himself and when he was about four feet off the ground saw, for the first time, that one of the trucks was backing in to unload. He was called upon to make an instantaneous decision as to whether to let go of the rope and fall to the ground and attempt to roll to one side, or to attempt to hoist himself high enough to avoid the oncoming truck. He chose the latter and the result was that he was struck in such a manner that he swung out and then he came back and lit on top of the truck. His testimony was that he whistled and yelled at the driver but that apparently he was not heard. It is the testimony of his foreman, Schmiedke, that he too whistled and yelled. The evidence indicates that probably the noise of the motor prevented either being heard. Immediately following the accident, the plaintiff climbed down off the top of the truck and shortly thereafter was taken to town to be examined by a doctor. He did some work the next day on this same job but has not worked subsequent to that time. This action was brought against Waldorf-Hoerner and Missoula Cartage, and in his complaint plaintiff charges these companies with negligence and that their negligence caused the accident and the injuries. The negligence charged is as follows: (1) That the defendants negligently and carelessly caused the said truck and trailer combination rig to be operated on the premises of defendant Company without providing for and the keeping of a lookout for plaintiff Richard A. Stevens; (2) Without providing for and the giving of warning to plaintiff Richard A. Stevens that the said truck and trailer combination rig was going to be backed up into a position where it might collide with and strike plaintiff Stevens; (3) Without providing for and the giving to plaintiff Richard A. Stevens a safe place in which to work, while plaintiff Stevens was performing the duties entrusted to him and commanded of him by the B &amp; L Painting Company, and while plaintiff Stevens was on defendant Company's premises, and while plaintiff Stevens was in a precarious and perilous position. As this court understands these allegations what they amount to is that the defendants are charged with (1) failing to keep a lookout for the plaintiff; (2) failing to warn the plaintiff; and (3) failing to provide a safe place in which to work. At the conclusion of plaintiff's evidence, both defendants moved for a directed verdict which the district court granted. In support of their motions, both defendants argued, among other grounds, that plaintiff's evidence established his own contributory negligence and thus barred recovery. In granting the motions of the defendants, the district court made the following finding: "The Court finds as a matter of law that the plaintiff was guilty of contributory negligence which contributed as a proximate cause to his injuries and the jury will be directed to return a verdict for the defendants." Plaintiff properly notes that this court in reviewing the correctness of the district court in granting the motions for directed verdict must view the evidence "from the standpoint most favorable to plaintiff, and every fact must be deemed proved which the evidence tends to prove." Mellon v. Kelly, 99 Mont. 10, 20, 41 P.2d 49, 52, Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4. In George v. Northern Pacific Ry. Co., 59 Mont. 162, 171, 196 P. 869, 870, this court made the following observations concerning the defense of contributory negligence: "In this jurisdiction it is the rule that contributory negligence is a matter of defense to be established by preponderance of the evidence. The plaintiff has made out a prima facie case when his evidence discloses injury to himself and that the negligence of the defendant was the proximate cause of it. [Citing previous cases.] It *835 is the rule also that when the circumstances attending the injury, as detailed by the plaintiff's evidence, raise a presumption that he was not, at the time, in the exercise of due care, he has failed to make out a case for the jury. The burden is then upon him, and if he fails to introduce other evidence to remove the presumption, he is properly nonsuited. [Citing previous cases.] As we have previously pointed out, plaintiff was familiar with the fact that the unloading area was in constant use. He had seen the chip trucks backing into the unloading area. Yet, by his own testimony, which we will set forth, plaintiff admitted that he took no precautions whatever to protect himself from injury. On cross-examination the plaintiff explained his action on the day of the accident in this manner: "Q. And whatever the reason it is the cold fact is it not, that you didn't take one iota of precaution for your own safety? A. I just did what I did every day. I didn't pay any attention, you are right. "Q. Either by your use of your sense of hearing, your sense of vision, or anything else, that is true, is it not? A. Your sense of hearing is nullified by hearing noise. "Q. You didn't use your eyes to try to protect yourself? A. I didn't look. "Q. And you didn't put any signs up yourself, did you? A. It wasn't my job. My job was to paint. "Q. You didn't do a blessed thing to look out for yourself? A. Absolutely not." Thus, the evidence presented by the plaintiff, viewed in any light, reveals that plaintiff was familiar with the unloading area; that plaintiff knew that trucks backed into the area frequently; that plaintiff knew the trucks could only come from one direction to back into the unloading area; and that plaintiff knew that the unloading area was a dangerous place in which to linger. Despite the knowledge of these facts, plaintiff fastened himself in the "bos'n" chair with his back to any approaching trucks. These activities on the part of the plaintiff under any theory cannot be called "the exercise of due care." The district court was correct in finding that the plaintiff was guilty of contributory negligence as a matter of law and that such contributory negligence barred recovery from either of the defendants. Finding no error, the judgment is affirmed. JAMES T. HARRISON C. J., and ADAIR, DOYLE and JOHN CONWAY HARRISON JJ., concur.

April 3, 1967

0b00fb42-e6f8-4748-985c-ae7052da664a

Jangula v. United States Rubber Co.

149 Mont. 241, 425 P.2d 319

11253

Montana

Montana Supreme Court

425 P.2d 319 (1967) 149 Mont. 241 John JANGULA, Plaintiff and Appellant, v. UNITED STATES RUBBER COMPANY, a Corporation, Defendant and Respondent. No. 11253. Supreme Court of Montana. Submitted March 7, 1967. Decided March 21, 1967. *320 Mark Doepker, Maurice Hennessey (argued), Butte, for appellant. Corette, Smith, Dean &amp; Robischon, Kendrick Smith (argued), Butte, for respondent. PER CURIAM: Appeal from an order and judgment dismissing plaintiff's action following defendant's motion to dismiss for want of prosecution. This cause was previously before this court upon an appeal by the defendant from a judgment in favor of the plaintiff entered in the district court. The former appeal was argued May 12, 1965, decided on September 30, 1965. Following petition for rehearing a rehearing was granted solely to consider privity of contract in warranty cases, but as to the merits of the appeal and the Opinion of the Court ordering a new trial the petition for rehearing was denied. The Opinion of September 30, 1965, was withdrawn. The rehearing was held on January 11, 1966, and the Opinion was handed down on January 28, 1966, see 147 Mont. 98, 114, 410 P.2d 462. The concluding paragraphs of that opinion state: "Having found error prejudicial to the defendant occurred upon the trial, we must exercise our discretion as to the proper disposition of this appeal. "We recognize in considering the bona fides of plaintiff's claim that Dr. Shields thought that the cause of plaintiff's trouble was the rubber boots; that plaintiff had never had any breaking out on his body previously but wound up in the hospital the third day after wearing the U.S. Rubber boots; that he wore another boot thereafter with no ill effects but on a second attempt to wear the U.S. Rubber boots again broke out and went back to the hospital. Had the court sustained the objections to the hypothetical questions, as properly it should have, plaintiff might have been able to eliminate the speculative elements contained in the questions, or, if not, at least he would have been aware of his lack of proof and had an opportunity to otherwise supply it. "These circumstances impel us to the view that in the exercise of our discretion in this cause a new trial `would better serve the ends of justice.' "The judgment is reversed and a new trial ordered." No effort was made by either plaintiff, defendant, or the court to see that the cause was set for the new trial as ordered. Defendant says it was the obligation of plaintiff to do so; plaintiff in response to the motion to dismiss stated that it is necessary that an amended complaint be filed, but no application for leave of court for that purpose had been sought. See Rule 15, M.R.Civ.P. We are well aware of the long standing precedent that there is inherent power in the district court, in the exercise of sound discretion, to dismiss an action for failure to prosecute. See State Savings Bank v. Albertson, 39 Mont. 414, 102 P. 692; Silver v. Eakins, 55 Mont. 210, 175 P. 876; Smotherman v. Christianson, 59 Mont. 202, 195 P. 1106; State ex rel. Johnstone v. District Court, 132 Mont. 377, 319 P.2d 957. This precedent is carried into the new Rules of Civil Procedure as Rule 41(b) and the motion was made under authority of that rule. However, this court ordered a new trial and in that connection we quote from Estate of Stoian, 138 Mont. 384, 357 P.2d 41, as follows: "There can be no question as to this court's power to remand a case to the district court with directions that certain further action be taken by it. Section 93-216, R.C.M. 1947, provides in part: "`The supreme court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered or direct a new trial or further proceedings to be had.' Emphasis supplied. "Many jurisdictions recognize the principle that a lower court cannot ignore an appellate court's mandate in disposing of a case after it has been returned to the lower court. "`On the remand of the cause after appeal, it is the duty of the lower court to comply with the mandate of the appellate court and to obey the directions therein * * * the trial court commits error if it fails to follow the directions of the appellate court.' 5B C.J.S., Appeal and Error, § 1966, p. 577. Citations to cases from 40 jurisdictions are contained in the footnotes to the above statement. "This court also has held that the district court cannot refuse to carry out its mandate when a case has been remanded to the district court for further proceedings. In Montana Lumber &amp; Mfg. Co. v. Obelisk Mining &amp; C. Co., 16 Mont. 117, 40 P. 145, the district court was reversed because it refused to follow the mandate laid down by this court on a former appeal of the same case. (Montana Lumber &amp; Mfg. Co. v. Obelisk Mining &amp; C. Co., 15 Mont. 20, 37 P. 897), wherein the district court had been directed to include certain property in a decree of foreclosure. *321 "In further support of the proposition that the district court must follow this court's mandate see Kennedy v. Dickie, 36 Mont. 196, 92 P. 528; State ex rel. LaFrance Copper Co. v. District Court, 40 Mont. 206, 105 P. 721; State ex rel. St. George v. District Court, 81 Mont. 300, 263 P. 97; State ex rel. United State Fidelity &amp; Guaranty Co. of Baltimore, Md. v. District Court, 77 Mont. 594, 251 P. 1061; and Hansen v. Hansen, 134 Mont. 290, 329 P.2d 791." We were recently confronted with much the same problem in State of Montana ex rel. Gage v. District Court, 148 Mont. 284, 419 P.2d 746, and in that case we delineated the steps to be taken by the district court in order to expedite a final determination of the case of Reilly v. Maw, 146 Mont. 145, 405 P.2d 440, which on the original appeal had been remanded to the district court with directions and suggestions which were not carried out and the results we had hoped for were not achieved. A similar situation was before the United States Court of Appeals, District of Columbia Circuit, in Rankin v. Shayne Bros., Inc., 108 U.S.App.D.C. 47, 280 F.2d 55. In that case U.S. District Judge Alexander Holtzoff dismissed an action for lack of prosecution and an appeal was taken. The question there, as here, was whether the district court abused its discretion in dismissing the action. The Court of Appeals held that the district court erred for two reasons. The first had to do with the illness of appellant and his counsel which is of no moment here. The second reason is pertinent. The Court of Appeals had reversed a judgment entered on a verdict directed by the district court against the appellant who was plaintiff in the district court and the cause was remanded for a new trial. See Rankin v. Shayne Brothers, Inc., 98 U.S.App.D.C. 214, 234 F.2d 35. The Opinion upon the last appeal, appearing in 280 F.2d 55, states in part: "There is a secondary reason also why we conclude that, although appellee is now entitled to a prompt trial, appellant should not *322 be denied any trial. This reason is the absence of any call of the case, referral of it to the Assignment Commissioner or other action designed to initiate any steps toward securing compliance with our judgment. See Meloy v. Keenan, 17 App.D.C. 235. "There is strength in appellee's argument that it might be prejudiced by the passage of time; but this argument is not sufficiently supported factually to overbalance the certainty of prejudice to appellant if deprived entirely of a retrial as authorized by our previous decision." In the circumstances which exist here we feel that the district court abused its discretion in granting the motion to dismiss without having placed the case upon the trial calendar in accordance with the mandate of this court. That plaintiff has been dilatory should not be used as an excuse to void our order granting him a new trial. We say to plaintiff that further delay will not be excused. If application is to be sought under Rule 15, M.R.Civ.P., it should be done forthwith; if not, the district court should set the cause for trial at the next jury term. Each party to bear their own costs on this appeal. VICTOR H. FALL, District Judge, sat in the hearing and oral argument of this appeal and participated in its determination in the place of CASTLES, J.

March 21, 1967

a1853a36-f21d-41c0-afa8-8a1a30fabaa3

Mally v. Asanovich

423 P.2d 294

11203

Montana

Montana Supreme Court

423 P.2d 294 (1967) Mike MALLY, Plaintiff and Respondent, v. Mary ASANOVICH, Defendant and Appellant. No. 11203. Supreme Court of Montana. Submitted January 12, 1967. Decided January 26, 1967. Rehearing denied February 1, 1967. *295 Poore, Poore, McKenzie &amp; Roth, Allen R. McKenzie (argued), Butte, for appellant. Thomas F. Joyce and John T. Prothero (argued), Butte, for respondent. JOHN C. HARRISON, Justice. This is an appeal from a judgment of the district court of the second judicial district of the State of Montana, in and for the County of Silver Bow, arising out of an automobile injury to a pedestrian. Mike Mally, plaintiff in the cause below, suffered serious personal injuries when struck by an automobile driven by the appellant on Harrison Avenue in the City of Butte, Montana. Harrison Avenue is one of the city's busy thoroughfares generally running north and south and is a part of U.S. Highway No. 10. In the area where the accident occurred there are no cross-walks. On the evening of September 10, 1964, Mike Mally left his home to make a phone call at a booth located about a block away. After making his call he followed a path south along Harrison Avenue for a block where he reached a place where the curbing ended and here he chose to recross the Avenue. Before crossing, going from west to east, Mally looked north and south to see what the traffic conditions were before crossing. Three cars were seen by Mr. Mally, one in the immediate area that went by him before he left the pathway, one to the north about three blocks away and one to the south about three blocks away. Thinking he had sufficient time to safely cross Harrison Avenue he testified as follows as to what happened as he crossed: "Q. You looked in both directions, and then what did you do? A. I looked before I started across the road. I kept going, I went in kind of a diagonal position towards my house. "Q. What happened then? A. I kept walking, right from diagonally right straight towards my house and I got struck. And that was on the other side of the white line, in the center of the line. "Q. The center line? A. The center line right. "Q. The other side of the center line? A. That would be on the west side of the center line?" Concerning what he remembered just before being hit Mally testified that he saw no car, no lights, heard no horn nor could be recall hearing any brake squeal. The appellant was called and testified as an adverse witness on behalf of Mally. Her testimony was that on the evening in question she was driving her brother's 1960 Plymouth and that she was taking a nephew to the airport. She estimated her speed going south on Harrison Avenue at between 20 and 25 miles per hour. Concerning what happened just prior to the accident she testified as follows: "Q. As you passed Moran's Trailer Court that particular evening, you were later involved in a collision with Mr. Mally, isn't that right? A. Yes, sir. "Q. And at some point there I think you saw Mr. Mally in front of you, did you not? A. Yes, sir. "Q. How far would you say you were when you saw him? A. Very close. In fact, I couldn't tell you, but very close. The car was practically on top of him when I saw him because it is dark in that area. "Q. But you were paying attention to the road in front of you; you were looking ahead, were you not? A. Yes, sir. *296 "Q. You weren't distracted by anything in the car? A. No, sir. "Q. So that when you got to the point where your lights illuminated the road ahead of you and Mr. Mally appeared within that view, that's when you first saw him? A. Yes, sir * * * "Q. When you first saw him it looked like he A. Looking west. "Q. didn't see you? A. He may have seen me; that I couldn't say. "Q. But at any rate, his head wasn't directed toward you? A. No. "Q. As you saw him he appeared to be looking west. A. Yes. "Q. And he was right there in the road ahead of you, right? A. Yes, sir. "Q. And when you saw him did you honk the horn? A. I did not. I applied the brakes and swerved to the left. "Q. But when you applied your brakes did you bring your car to a stop? A. No, not a complete stop. "Q. When you applied the brakes did you dynamite them? A. I applied the brakes and if he didn't turn I would have avoided him. But he turned towards me and that's when "Q. You saw him in front of you? A. Yes. "Q. You had him in your view while you were turning and applying the brakes. A. Yes, sir. * * * "A. Well, I'll tell you, all I thought was if I stopped, came to a sudden stop there, cars behind me would plow into me. I had to be going to be off the highway. "Q. So after you saw Mr. Mally, did you make a mental judgment there, you would not stop. A. Yes. "Q. You were only going twenty, not very fast. A. Not very fast. "Q. You could have stopped. A. If I wanted to, why certainly." While considerable other testimony was produced during the course of the trial this testimony constitutes the meat of the appeal. Throughout the trial, respondent Mally admitted negligence but contends that under the last clear chance doctrine he should prevail. It should be noted, to understand the following discussion that this case was plead as a last clear chance doctrine case and while depositions were taken prior to trial the case immediately developed on trial to be an inattentive pedestrian case. A careful examination of the evidence presented at the trial and a study of both counsel's briefs leads us to believe that throughout the trial and in the appeal that appellant failed to recognize the theory of respondent's case. Appellant contended from the outset respondent was negligent; that he assumed the risks involved in crossing the street; that he was guilty of contributory negligence; that in his jaywalking he violated a city ordinance; that all of this created a continuing and concurrent negligence all of which negates recovery from appellant even under the last clear chance doctrine. The respondent admits all of this but argues that in spite of his negligence that he clearly comes within the doctrine of last clear chance as enunciated by the case law of this court. Particularly does he rest his case on this doctrine in view of the testimony he elicited from the appellant when she appeared as an adverse witness to wit; she saw him in her headlights about 100 feet ahead of her car, the fact he seemed to pay no attention to her oncoming car, and the fact she didn't try to stop nor did she blow her horn. With this testimony in, and apparently believed by the jury, the respondent's position became that regardless of his own negligence he could recover. Commencing early in the century with the case of Neary v. Northern Pac. R. Co., 37 Mont. 461, 97 P. 944, 19 L.R.A., N.S., 446 (1908), to the more recent cases of Sorrels v. Ryan, 129 Mont. 29, 281 P.2d 1028, and Gustafson v. Northern Pac. Ry. Co., 137 Mont. 154, 351 P.2d 212, this court has recognized and developed the doctrine of last clear chance in Montana. Generally the cases under this doctrine fall into two classifications; (1) the helpless plaintiff, *297 and (2) the inattentive plaintiff. These two situations are ably set forth and discussed in 2 Restatement of Torts 2d, §§ 479 and 480. Under the facts of this case the plaintiff falls under the rules applicable under section 480 and the case law of this state which recognizes the position of an inattentive plaintiff who negligently places himself in a perilous position. Sorrels v. Ryan, supra. Recovery under this situation is much narrower than that of the helpless plaintiff for an inattentive plaintiff to recover it must be shown that the defendant knew of the plaintiff's perilous situation, or should have known, and failed to exercise care to avoid injuring the plaintiff. Clearly here under the facts before the jury they could reasonably have found that defendant some 100 feet away from plaintiff, driving at about 20 miles per hour who observed the plaintiff not paying any attention to her and who failed to either blow the horn or to stop her vehicle until after the accident could be found to be the proximate cause of the accident. The appellant sets forth four specifications of error. (1) Was defendant entitled to a judgment of dismissal pursuant to her motion for summary judgment under Rule 56, M.R.Civ.P., on the basis of the pleadings and the depositions of the plaintiff and defendant and of the applicable law? (2) Was defendant entitled to a directed verdict under Rule 50 or a judgment of dismissal under Rule 41(b), M.R.Civ.P., pursuant to the motion made at the end of plaintiff's case? (3) Did the court err in giving instruction 17 and in refusing to give defendant's proposed instruction 12? (4) Did the court err in denying defendant's motion for judgment notwithstanding the verdict pursuant to Rule 59, M.R.Civ.P.? Concerning appellant's argument on being entitled to a summary judgment on the deposition, we find no merit. Where an appeal is taken from either the granting of a summary judgment, or the failure to grant a motion for summary judgment in negligence cases, this court will review the testimony in the most favorable aspect it will bear in support of plaintiff's claim of the right to present the merits of his case to the factfinder. Kober &amp; Kyriss v. Stewart &amp; Billings Deaconess Hospital, Mont., 417 P.2d 476; Johnson v. St. Patrick's Hospital, Mont., 417 P.2d 469. In summary judgment, the burden is on the moving party to clearly establish that there is no factual issue to be determined, and the burden is not upon the opposing party to show a prima facie case. It is the function of the trial court to allow a plaintiff to present a case so that the actual occurrences might be determined, the character and import of the events analyzed, and having resolved these matters, to determine whether the defendant failed to exercise that degree of care and forethought which an ordinarily prudent person would have exercised in the fulfillment of the duty to protect the plaintiff from injury. With respect to the use of summary judgment in a negligent action, 6 Moore, Federal Practice 2583, § 56.17[42], states the general proposition "that issues of negligence, including such related issues as wanton or contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner." We are unable to agree with the appellant's contention under her second specification of error, that she was entitled to a dismissal of respondent's case at the end of his presentation of evidence under Rule 41(b), M.R.Civ.P. A review of the evidence shows that the trial judge properly denied the giving of defendant's proposed instruction 12 and properly gave instruction 17. The question was not raised whether "she should have seen"; the testimony clearly shows she did *298 see him and failed to exercise reasonable care to have prevented the injury. Finally after a careful review of all the evidence presented we find no error in the district judge's denial of defendant's motion for a judgment notwithstanding the verdict pursuant to Rule 59, M.R.Civ.P. The judgment of the district court is affirmed. JAMES T. HARRISON, C. J., and DOYLE, ADAIR and CASTLES, JJ., concur.

January 26, 1967

bb3cbbb7-b362-4f13-a4bb-b2b202772426

Bridges v. Moritz

425 P.2d 721

11073

Montana

Montana Supreme Court

425 P.2d 721 (1967) Edna I. BRIDGES, Plaintiff and Respondent, Ernest E. Johnson, Plaintiff and Respondent, v. Earl MORITZ, d/b/a Central Construction Company, Kenneth L. Brewer, Defendants and Appellants, and The Montana Power Company et al., Defendant and Appellant. No. 11073. Supreme Court of Montana. Submitted February 6, 1967. Decided March 21, 1967. Rehearing Denied April 6, 1967. *722 Weir, Gough &amp; Booth and Ward A. Shanahan, Keller, Magnuson &amp; Reynolds, Helena, Ward A. Shanahan and Edwin S. Booth (argued), Helena, Paul T. Keller (argued), Helena, for appellants. Loble, Picotte &amp; Fredricks, Helena, Gene A. Picotte (argued), Helena, for respondents. CASTLES, Justice. This is an action for damages by Bridges, the owner of a building destroyed by a gas explosion, and Johnson, the owner of a business occupying the building, against the Montana Power Company, Earl Moritz, d/b/a Central Construction Company, and Kenneth L. Brewer. A gas service line was struck during construction work on a Special Improvement District in the City of Helena, and an explosion ensued burning the building and destroying the business therein. The district court entered a directed verdict against all three defendants on the question of liability and judgment was entered accordingly pursuant to damages set by the jury. The three defendants appealed, with Moritz and Brewer joining in one brief and Montana Power Company filing a separate brief. The only question presented is whether the district court erred in granting a directed verdict against all defendants. In 1963 the City of Helena created a Special Improvement District and engineers for the City, Morrison and Maierle, did the surveys, made maps and plans, and set grade stakes to guide construction workers. Earl Moritz, d/b/a Central Construction Company (and hereafter referred to as Moritz) was successful bidders and commenced work in July of 1963. Moritz employed the defendant Brewer, a heavy equipment operator who owned his own bulldozer, to do certain excavation work. Throughout the course of the construction work, the Montana Power Company had employees on the scene to point out the location of gas mains located under the street surface and otherwise to assure the safety of Power Company facilities. Prior to the date of the accident, one Green, who was an employee of Moritz, discovered that the gas main on 15th Avenue was too close to the surface to meet the specifications set forth by the city engineers. The Power Company was so notified and lowered these gas lines to the required depth. On August 9, 1963, Brewer started grading on 15th Avenue with his bulldozer at the direction of Moritz's superintendent. At about 10:00 o'clock a.m., a rock got *723 between the blade of the bulldozer and the gas service line into Ernie's Body Shop and exposed the pipe. Montana Power Company men were on the scene and at that time pointed out to Brewer the location of the service line. They also tested the line and determined that the impact had not caused any leakage. After the pipe had been struck and tested the Power Company employees dug a hole closer to Ernie's Body Shop along the service line to determine the depth at that point. Brewer continued to grade on 15th Avenue but mounded dirt over the exposed service line to permit the bulldozer to pass over the line without damaging it. General conversation took place between the Montana Power Company employees and Brewer and there is some conflict in the testimony as to what was said. It does appear to be fairly certain that Brewer was instructed not to grade in the area where the service line passed under the curb. He was also informed that the Power Company men would take a lunch break between 12:00 o'clock noon and 1:00 o'clock p.m. and that Brewer should not grade near the pipe until the Power Company personnel returned at 1:00 o'clock with a city engineer. The Montana Power Company also knew that Brewer was in the habit of taking one half hour for lunch from 12:00 to 12:30 o'clock p.m. Brewer did commence grading at 12:30 o'clock p.m. at a time when there was no supervision by the Power Company. Shortly before 1:00 o'clock, Brewer struck the gas service line and bent it about 18 inches out of line. He made an attempt to enter Ernie's Body Shop to check for leakage but was unsuccessful. Finding a radio-equipped truck of the Power Company, Brewer summoned Maras, one of the Power Company employees who had been supervising. Maras and others immediately cut the gas main but at this time an explosion occurred inside the Body Shop which destroyed the building and its contents. Fortunately there were no personal injuries. In this appeal, all defendants disclaim responsibility for any negligence, or at least deny primary liability. Section 93-5205, R.C.M. 1947, provides: "Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto." The circumstances in which a directed verdict is proper have been clearly delineated in the case law of this state. Since any genuine question of fact should be submitted to the jury, a directed verdict may be entered only when it flows from the evidence as a matter of law. Holland v. Konda, 142 Mont. 536, 385 P.2d 272, 6 A.L.R.3d 824. The test employed to determine the legal sufficiency of the evidence used to support a motion for a directed verdict is whether reasonable men can draw different conclusions from the evidence. If but one conclusion is reasonably possible, then the directed verdict is proper. Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4. There is little dispute as to the actual cause of the explosion. Nor can we entertain any serious discussion on the question of whether the defendant Brewer had sufficient notice of the location of the gas service line and the dangers involved in grading without supervision in the vicinity of the gas line. Uncontradicted testimony reveals that Brewer struck the line the morning of the accident. At that time the line was exposed and its proximity to the surface of the ground clearly revealed to Brewer. Of course Brewer was the only witness to the events which precipitated the explosion, and there is some disagreement as to how far from the curb the impact occurred. Yet none of these factual variables detract from the negligent character of the act which caused the damage. We have no trouble in sustaining the decision of the district court with respect to the liability of the defendant Brewer. A more difficult and critical question concerns the scope of the duties of *724 Moritz and the Montana Power Company as they relate to the negligent act. Brewer was clearly an agent of Moritz. Although Brewer owned his own equipment and was not permanently employed by any one principal, he was hired on an hourly basis by Moritz for this particular job. Moritz, acting through his supervisors, directed the activities of Brewer and under well-established rules of agency, which we must here recognize, must answer for the torts of the agent committed within the scope of the agency. With respect to Moritz and Brewer the trial judge had little choice but to direct a verdict against them on the question of liability, and we must affirm that holding. The position of the Montana Power Company differs from that of the other defendants in many important particulars. These factors, which we shall discuss, all relate to the scope of the duty owed by the Power Company to the plaintiffs in this action. As a general rule, a gas company is not an insurer of every injury caused by exploding gas. In Staff v. Montana Petroleum Co., 88 Mont. 145, 156, 291 P. 1042, 1046, this court said that employees of a gas company must "use a degree of care commensurate with the danger involved." While the "danger involved" in the transmission and handling of natural gas is clearly of substantial magnitude, it is not so absolute as to render an absolute standard of care. We feel that the duty owed by the Power Company should be coextensive with the risks involved in this case and that their liability should be limited by reasonable discharge of that duty. The Montana Power Company had the obligation to take reasonable means to protect existing gas transmission facilities during the repaving of the streets. Some degree of supervision of the activities of the construction company would clearly be necessary in discharging this responsibility. Since the Power Company could not be liable under the rules of agency for the dereliction of Brewer, the only grounds upon which liability of the Power Company could be predicated would be upon failure to take precautions reasonably necessary to protect the gas lines. It is clear that adequate measures were not taken, else the explosion would not have occurred. Yet any legal inquiry must assess the reasonableness of the activity involved and not the effectiveness. Having carefully reviewed the record, we cannot escape the conclusion that the Montana Power Company reasonably discharged its duty. We also feel that a directed verdict was entered against the Power Company upon a misapprehension of the scope of duty owed by that defendant. In De Vries v. City of Austin (1961), 261 Minn. 52, 110 N.W.2d 529, the Court affirmed the following proposition: "* * * it would be unreasonable to charge plaintiff [the gas company] with the duty of constantly watching the operations over which it had no control to ascertain, at its peril, when defendants [contractors] intended to proceed with such work as might damage its service lines." The same case goes on to point out that a contrary result would in reality render the gas company an insurer of any misfortune precipitated by the construction company. Brewer was instructed by employees of the Montana Power Company not to grade near the gas service line until 1:00 o'clock p.m. when the Power Company men returned from lunch. It is true that the Power Company knew that Brewer was in the habit of resuming work at 12:30 o'clock p.m. Should the Power Company reasonably anticipate that Brewer would not follow explicit instructions given him a short time before the accident? We think clearly not. Brewer of course professed ignorance of the true location of the gas service line, which we find slightly incredible since the location of the line was clearly pointed out to him the morning of the explosion. The primary beneficiaries of this construction project were the City of Helena and Moritz. The Montana Power Company became involved in a passive and *725 supervisory capacity to protect their easements under the streets. We feel that the duty of the utility company under these circumstances must, as a matter of law, fall somewhat short of absolute liability for the negligent acts of others. Under Rule 50(b), M.R.Civ.P., a party who moves for a directed verdict at the close of the evidence may preserve this motion and renew it after the verdict and judgment thereon has been entered, in effect seeking judgment notwithstanding the verdict. As Rule 50(b) points out, the motion deals with the legal sufficiency of the evidence. We believe that there was error in failure to grant the defendant Montana Power Company's motion for a directed verdict, since the record demonstrates unequivocally that the Power Company took every reasonable precaution to protect its facilities and customers. The judgment is therefore affirmed as to defendants Earl Moritz, d/b/a Central Construction Company and Kenneth M. Brewer. The cause is remanded with instructions to dismiss the action with respect to the defendant Montana Power Company. JAMES T. HARRISON C. J. and ADAIR, DOYLE and JOHN CONWAY HARRISON, JJ., concur.

March 21, 1967

0817ea89-f381-4fdb-9aeb-c953f001489f

Olsen v. United Benefit Life Insurance Company

432 P.2d 381

11181

Montana

Montana Supreme Court

432 P.2d 381 (1967) Lawrence J. OLSEN and Mattilda J. Olsen, Plaintiffs and Appellants, v. UNITED BENEFIT LIFE INSURANCE COMPANY, a Corporation, Defendant and Respondent. No. 11181. Supreme Court of Montana. Submitted September 13, 1967. Decided October 3, 1967. Hoyt &amp; Bottomly, Great Falls, B. Miles Larson Jr., Stanford, Richard V. Bottomly (argued), Great Falls, for appellants. Hughes &amp; Bennett, George T. Bennett (argued), Helena, for respondent. PER CURIAM: Plaintiffs instituted this action in the district court of Fergus County to recover certain *382 commissions and renewal commissions on the sale of policies issued by the defendant and sold by the plaintiff Lawrence J. Olsen, and others, while Olsen, was under contract with the defendant insurance company as a salesman. Following the trial before the court, sitting without a jury, the court made and entered findings of fact, conclusions of law, order for judgment and judgment. Parenthetically, we have examined the record and the findings and find them completely substantiated, hence it is not necessary to discuss those matters in view of what is hereinafter set forth. On February 11, 1966, plaintiffs were served with notice of entry of the findings and judgment. It should be noted that defendant submitted proposed findings to the court but the plaintiffs did not do so. Following entry of the findings and judgment neither side filed any exceptions. On February 21, 1966, plaintiff Lawrence J. Olsen filed a motion for a new trial. This motion was not acted upon within the time provided by section 93-5606, R.C.M. 1947, and by the provisions of the statute was deemed denied. This appeal was then taken. Appellants' brief contains one heading: "Statement of Facts." No effort has been made to comply with the provisions of Rule 23, M.R.Civ.App.P., in that the brief contains no table of contents, no table of cases, no statement of issues or specifications of error, nor appendix. In the course of the brief, appellants state: "This case in the main involves questions of fact in which plaintiff contends the Court's findings were in error and in error as the Court applied such facts to the law." We recently stated in Rozen v. Rosen, 150 Mont., 431 P.2d 870, that "Section 93-5305, R.C.M. 1947, provides that in cases tried by the court the judgment shall not be reversed on appeal for defects in findings unless exceptions are made in the district court. No exceptions to the findings complained of here by the appellant were made in the district court and defects cannot be raised for the first time upon appeal." This has long been the law of Montana. See Tolson v. Tolson, 145 Mont. 87, 399 P.2d 754; Park Saddle Horse Co. v. Cook, 89 Mont. 414, 300 P. 242; Haggin v. Saile, 23 Mont. 375, 59 P. 154 (1899), and cases cited therein. We appreciate that counsel on appeal are not the same counsel who tried the case in the district court, but the employment of new counsel cannot change the record and such new counsel takes the case on the record then appearing. In view of the lack of exceptions to the findings, section 93-5305, R.C.M. 1947, there is nothing for this court to decide. Since no justiciable issues are presented this court has the power, sua sponte, to dismiss the appeal. See Wilson v. State Highway Comm'n, 140 Mont. 253, 370 P.2d 486, and cases therein cited. For the foregoing reasons this appeal is dismissed.

October 3, 1967

4f664c80-735d-454a-8ea9-a224288628f8

STAPLETON v FIRST SECURITY BANK

N/A

82-303

Montana

Montana Supreme Court

No. 8 2 - 3 0 3 IN TBE SUPREME COURT OF THE STATE OF MONTANA 1983 ELEANOR STAPLETON, Plaintiff and Appellant, -vs- FIRST SECURITY BANK, Defendant and Respondent. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Flissoula, The Honorable W. W. Lessley, Judge presiding. COUNSEL OF RECORD: For Appellant: Milodragovich, Dale & Dye; Lon J. Dale argued, Missoula, Montana For Respondent : Mulroney, Delaney & Dalby; Dexter Delaney argued, Missoula, Montana Filed: Submitted: September 13, 1983 Decided: December 23, 1983 - Clerk Mr. Justice Fred J. Weher delivered the Opinion of the Court. Plaintiff Eleanor Stapleton sued for statutory conversion of $32,600. She appeals from the judgment of the Fourth Judicial District Court, Missoula County, in favor of three defendant banks. We reverse and remand for further proceedings. The relevant issues are: 1. Did the District Court err in determining, as to drawee banks Western Montana National Bank (Western) and Federal Home Loan Bank of Seattle (Federal), that plaintiff as a joint payee could recover less than the face amount of the converted instruments? 7 A * Did the District Court err in determining that collateral estoppel precluded recovery by the plaintiff? Arthur and Eleanor Stapleton, husband and wife, had a joint checking account at First Security Bank (First Security). On October 1, 1.974, Eleanor closed the account by withdrawing all remaining funds and writing "closeout" in the memo portion of her check. First Security recognized her cl-osing of the account by not carrying the account on the bank's computer trial bala.nce and by not sending statements after October, 1974. In April 1976, Arthur deposited two joint-payee checks in the closed account. Both checks were payable to Arthur M. and Eleanor M. Stapleton. The two checks were in payment for sale of real property located in I!lissoula, Montana and owned by Eleanor and Arthur as joint tenants. The checks totaled approximately $32,600. First Security reopened the closed account and deposited the checks. The District Court expressly found that Eleanor was no longer a customer of the bank. First Security accepted both checks without the endorsement of either payee and without the knowledge or consent of Eleanor. Despite the absence of endorsements, Western and Federal, the drawee banks, accepted and paid the respective checks when received by them. Shortly after depositinq the checks, Arthur withdrew $32,500 from the account without the knowledge or consent of Eleanor. Later in 1976, Arthur left Montana and initiated divorce proceedings against Eleanor in the State of Nevada. Eleanor participated in the Nevada proceedings and was represented by ccunsel. The Nevada District Court determined the marital assets of the Stapletons, including proceeds from the sale of real property. The Court found assets in the amount of approximately $125,000. The Court referred to the sale of the Missoula property and noted that the proceeds from the sale represented by the two checks were converted by Arthur. But the decree did not specifically find that the proceeds were available for distribution. The Court did not specifically determine whether Arthur had retained or dissipated those proceeds. First Security now claims those proceeds were available for distribution. The Court reco~nized Arthur ' s attempts to abscond with marital assets. Finally, the Court awarded Eleanor $25,000 plus miscellaneous personalty. Arthur appealed the Nevada judgment, but prior to decision the parties settled. They executed a Settlement Agreement and Satisfaction of Judgment, whereby Eleanor released Arthur from all oblj gations emanating from the divorce decree in return for $13,500 and dismissal of the appeal. The Settlement Aureement stated it was an effort to "resolve all litigation" between the parties in the State of Nevada and any other actions "emanating" from the Nevada iudgment . The Satisfaction of Judgment incorporated the Settlement Agreement and stated that the parties had "settled all matters of controversy between them . . . in consideration of . . . $13,500." The Settlement Agreement and Satisfaction of Judgment were executed more than two months after this lawsuit was filed. Eleanor filed suit in Montana for statutory conversion under the Montana Uniform Commercial Code (UCC) aqainst First Security, the depositary bank, in January 1977. Eleanor later amended the complaint to include defendants Western and Federal, drawee banks. Both drawee banks cross-claimed against First Security for indemnification under the warranty provisions of the UCC. First Security counterclaimed against Eleanor and filed. a third-party action against Arthur. The District Court severed the third-party action. The case was submitted on stipulated facts to the District Court sitting without a jury. Findings and conclusions were entered on June 3, 1982 and judgment for defendants was entered on June 18, 1982. Plaintiff Eleanor appeals. The parties executed a "Stipulation for Nonappearance" of Western and Federal because First Security must indemnify Western and Federal for any liability in this matter. Only First Security appears as a defendant on appeal. Appellant argues that section 30-3-419(2), MCA allows her to recover the full face amounts of the converted checks from Western and Federal. She contends the District Court erred in determining that her award is anythi.ng less than the face amount of the checks. The District Court held that all three defendant banks converted the respective checks because they paid the checks without endorsement. Section 30-3-419 (1) (c) , MCA provides: "(1) An instrument is converted when: "(c) it is paid on a forged endosement." Payment on a "forged endorsement" includes payment on an unauthorized endorsement or without any endorsement. Beyer v. First Nationai Hank of Dillon (Mont. 1 9 8 0 ) , 612 P.2d 1285, 1289, 37 St.Rep. 1035, 1040. The District Court's conversion holding is not challenged on appeal. A coll-ecting bank warrants to a d.rawee bank, according to the terms of section 30-4-207, MCA, that payment is authorized. The objective of the UCC is to place the loss on the wrongdoer or, beca.use the wrongdoer is usually unavailable or unable to pay, upon the party who last dealt with the wrongdoer. This party is best able to prevent the conversion by carefully checking endorsements. Perkins State Bank v . Connolly (5th Cir. 1980), 632 F.2d 1306, 1318. Thus, although First Security must indemnify drawee banks, the issue remains the measure of drawees1 liability. Eleanor argues the District Court failed to apply the proper measure of damages. The District Court held that under section 30-3-419(2), MCA the measure of liability for conversion may be shown to be less than the whole amount of the converted instruments. Appellant a.rgues that the District Court was without authority to reduce the amount of her recovery against drawee banks. Section 30-3-419 (2) wrovj.des: " (2) In an action against a drawee under subsection (1) the measure of the drawee's liability is the face amount of the instrument. In any other action under subsection (1) the measure - of liability is presumed to be the face amount of the instrument." (emphasis added} Official Comment 4 to this section states: "Subsection (2) . . . adopts the rule generally applied to the conversion of negotiable instruments, that the obligation of any party on the instrument is presumed . . . to be worth its face value. Evidence is admissible to show that for any reason . . . the obligation is in fact worth less, or even that it is without value. In the case of the drawee, however, the presumption i s ---- - replaced 2 - rule - of absolute liability." (emphasis added) Plaintiff argues that under Official Comment 4, Western and Federal are absolutely liable for the full amount of the checks even though the checks are made payable to two persons. Plaintiff would admit that First Security might be able to prove her interest is somethins less than the face amount of the checks, but emphasizes the absolute liability of the drawee banks. See Annot., 47 A.L.R.3d 537, 542. F J e agree that liability for statutory conversion is undisputed here, but the a.mount of recovery by a joint payee is not fixed. Neither the statute nor the comment addresses joint-payee instruments. Eased upon the Official Comment, plaintiff argues that she is entitled under the statute to collect $32,600, the face amount of both checks. Plaintiff's interpretation would allow a windfall to a joint payee who owns less than the face amount of a check. Under that theory, wherever there are joint payees, each could recover the face amount of a check, requiring a drawee bank to pay two times the amount of the checks, or more. We do not conclude that the statute requires recovery without regard to the joint payee's actual interest in the check. There is some authority for the absolute position of appellant. In Smith v. General. Casualty Co. of Wisconsin (Ill. App. 1979), 394 N.E.2d 804, a $7,000 check was made payable to an attorney and his client as joint payees. The check was paid over a forged endorsement to the attorney. The client sued drawee, General Casualty, for conversion. Before trial, the client received partial reimbursement of $2,500 from the Illinois Client Security Fund. 394 N.E.2d at 805-06. Drawee contended that the client ' s recovery should be reduced by the amount already received through the Client Security Fund. 394 N.E.2d at 807. The Court rejected that argument, holding that the equivalent of section 30-3-419(2), MCA sets the measure of damages as the face amount of the instrument. The Court stated: "There is no authority for reducing the amount of recovery thus established by statute, and the 6 general rule regarding collateral sources [citations omitted] militates against creating such a rule here. We believe the trial court correctly awa.rded plaintiff the face amount of the converted instrument." 394 N.E.2d at 807. The Court did not determine the relative interests of the joint payees in the check. The payment was received from a security fund, a type of insurance, which reasonably should not have reduced the liability of the drawee. Reduction of recovery by payment from a collateral source is distinguishable from determination of a joint payee ' s actual interest. First Security argues that the same measure of damages applies to a drawee bank as to a collecting bank. We do not agree. It is true that in an action against a collecting bank, "[elvidence is admissible to show that - for any reason such as insolvency or the existence of a defense the obligation is in fact worth less, or even that it is without value. " Official Comment 4, section 30-3-419 (2) , MCA (emphasis added). Rut such defenses are not available in determining the measure of draweesr liability. That measure is "absolute" liability for the face amount of the check. Official Comment 4. We conclude that Western and Federal are absolutely liable for $32,600, the face amount of the checks. However, the relative interests of the joint payees in that amount must be determined. The total of the shares of the joint payees should add up to $32,600. We have concluded that the amount of recovery by a joint payee is that amount to which he is entitled, which may be up to and including the face amount of the check. Other courts have employed this concept on similar facts. In Mueller v. Fidelity-Baltimore National Bank (Md. 1961) 171 A.2d 789, a purchaser of real estate issued joint-payee checks to a husband and wife. Husband had inherited the real estate from his father. Husband forged wife's endorsements and cashed the checks. Wife sued the cashing bank to recover the amounts of the two checks, but the trial court denied recovery because it found that wife had no right to any of the check proceeds. 174 A.2d at 790. On appeal, wife argued she was a joint owner of the checks and that joint payees of negotiable instruments are presumed, absent contrary evidence, to be equal owners. The appellate court agreed that her recovery depended on her relative interest in the proceeds of the real estate, hut found she had released her interest in the real estate prior to its sale. The lower court's judgment was affirmed. 174 A.2d at 790-92. We agree that a joint payee should not be all-owed to recover more than his or her interest in converted checks. We hold that Western and Federal are liable to Eleanor to the extent of her interest in the two checks. The record shows that the converted checks were the proceeds of real property owned by Arthur and Eleanor Stapleton as joint tenants. In Montana, joint tenants are entitled to equal shares of joint property absent proof to the contrary. Marshall v. Minlschmidt (1966), 148 Mont. 263, 269-70, 419 P.2d 486, 489; Henniqh v . Hennigh (1957), 131 Mont. 372, 376, 309 P.2d 1022, 1024-25. Section 30-1-103, MCA states that "[ulnless displaced by the particular provisions of this code [the UCC] , the principles of law and equity . . . shall supplement its provisions. " The principles of joint ownership are not displaced by the UCC provision here in question and may he used to supplement the UCC. We hold that absent proof to the contrary, Eleanor may recover one-half the amount of the checks. On remand, the District Court may consider evidence presented by the parties that Eleanor's proportional interest in the proceeds was greater or less than one-half. This shall not include evidence of other transactions or obligations between Eleanor and Arthur or Eleanor and the banks. Eleanor argues that section 30-1-106 (1) , MCA further supports her claim for recovery of the face amount. hat section states: "The remedies provided hv this code [the UCC] shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had ful-ly performed but neither consequential or special nor penal damages may be had except as specifically provided in this code or by other rule of law." While we agree with Eleanor that the measure of damages section should be libera.11~ administered, we note that this section emphasizes the goal of putting a party in "as good a position," not in a better position. We believe the procedure outlined above will accomplish precisely what this statute demands. Appellant argues that the District Court erred in applying collateral estoppel to deny her recovery. She argues that under either of two suggested tests, collateral estoppel does not apply. We agree. In Gessell v. Jones (1967), 149 Mont. 418, 427 ~ . 2 d 295, we stated: "'Collateral estoppel' . . . may be considered as a branch of the doctrine of res judicata but is distinguishable from the bar to litigation normally called res judicata. The distinction is that res judicata bars the same parties from relitigating the same cause of action while collateral estoppel bars the same parties from relitigating issues - - - which were decided with respect to a different cause of action . . . . The bar that arises from collateral estoppel extends to all questions essential to the judgment and actua.11~ determined by a prior valid judgment." 149 Mont. at 421, 427 P.2d at 296 (emphasis added). Coll-ateral estoppel prevents parties from attempting to redetermine issues already decided. The parties cite the four-part test of Smith v. County of Musselshell. (1970), 155 Mont. 376, 472 P.2d 878, to determine whether collateral estoppel applies: "These criteria. are: (1) the parties or their privies must he the same; (2) the subject-matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject-matter; and (4) the capacities of the persons must be the same in reference to the sub ject-matter and to the issues between them. I' 155 Mont. at 378, 472 P.2d at 880. First Security makes extended arguments with regard to the four-part test and suggests certain changes in the collateral estoppel rule. We do not consider these arguments because we conclude that part (3) of the test, that the issues must be the same and relate to the same subject matter, is not met here. In Rrannon v. Lewis and Clark County (1963), 143 Mont. 200, 387 P.2d 706, this Court concluded that of the four criteria, identity of issues is the most important. Further, identity of issues requires that the "precise question" has been litigated in the prior action. 143 Mont. at 207, 387 P.2d at 710-11. We reiterated these principles in Harris v. Harris (Mont. 1980), 616 P.2d 1099, 1101, 37 St.Rep. 1696, The Nevada divorce proceedings did not involve the "precise issues" litigated in the UCC conversion action. The Nevada findings listed the various monies and assets of Eleanor and Arthur Stapleton. No reference was made in the Nevada proceedings to the right of a conversion action against Western and Federal. The issues in this action require a determination of whether the defendant banks paid checks without joint payees' endorsements and determination of the amount of the checks and the relative interests of Eleanor and Arthur, the joint payees. These issues were not determined in the Nevada proceedings and in fact were not even considered by the Nevada Court. We hold that the issues litigated in the Nevada proceeding and those litigated in this action are not identical and that collateral estoppel does not bar plaintiff's recovery. The judgment of the District Court is reversed. and the cause is remanded for determination of Eleanor Stapleton's interest in the checks. We concur: - Chief Justice Justices i l .I & 3 y - 'I ~i . III~,:[A~~ , t h e t . qpn. John M. McCarvel d7itting for Mr. Justice Frank B. Morrison, Jr. Mr. Justice John C. Sheehy, concurring and dissenting: I dissent to the portion of the majority opinion that plaintiff is entitled only to one-half of the face amount of the two checks in the absence of additional proof. Instead, I would order on remand that judgment be entered in her favor for the face amount of the two checks. There is no reason for us to assume that the legislature did not know what it was doing when it imposed absolute liability on the drawee bank in section 30-3-419(2), MCA. It is evident to me that the legislature thought it important to prescribe full liability for the face of the instrument as a measure to prevent happening what did happen here, a careless negotiation in a closed account of unendorsed checks presented by one of two named pavees. The statute imposes a heavy liability even though one of the joint payees is a wrong-doer. It is more important, I believe, and the legislature surely so believed, to preserve the integrity of the banking process in handling negotiable instruments for the benefit of the commercial community. After all, the UCC was largely produced by bankers, and they saw in the provision of absolute liability protection to themselves as well as to the public dealing with banks. The majority pay large attention to the circumstance of two names in these checks which is not mentioned in section 90-3-419(2). Here the majority have placed a molehill on the desk, and managed to make a mountain of j . t . The solution should be simple: The banks are absolutely liable for the face of the in.struments, once. It is the business of the joint payees how the proceeds should be divided between them. Section 70-1-311, MCA. Instead, the majority supersede the p l a i n mandate of t h e lawmakers i n r e f u s i n g t o impose a b s o l u t e l i a b i l i t y . Although I d i s a g r e e w i t h t h e m a j o r i t y i n whole, I must p o i n t o u t a l s o t h e i r m i s i n t e r p r e t a t i o n of j o i n t ownership law i n assuming t h e w i f e i s e n t i t l e d t o a t l e a s t one-half of t h e proceeds. That r e s u l t i s based. on t h e assumption t h a t t h e r e e x i s t e d h e r e a. j o i n t tenancy i n t e r e s t . No such i n t e r e s t e x i s t s on t h e record here. Every i n t e r e s t c r e a t e d i n f a v o r of two o r more persons i s a tenancy i n common, i n c l u d i n g husband and w i f e , u n l e s s t h e instrument c r e a t i n g t h e i n t e r e s t e x p r e s s l y provides f o r a. j o i n t tenancy. S e c t i o n 70-1-312, MCA. Here w e know o n l y t h a t t h e checks w e r e made payable t o two persons, w i t h o u t a c r e a t i o n of j o i n t tenancy. Property i n tenancy i n common may be owned by t h e p a r t i e s i n any p r o p o r t i o n . O n t h e o t h e r hand, i f a j o i n t tenancy i s c r e a t e d t h e law d i c t a t e s t h a t t h e several- persons own i n e q u a l s h a r e s . S e c t i o n 70-1-307, MCA. Thus, t h e banking laws provide t h a t even i n j o i n t tenancy, t h e whole of t h e d e p o s i t may be p a i d t o any of t h e d e p o s i t o r s demanding t h e same. S e c t i o n 32-1-442, MCA. Here t h e w i f e had a r i g h t by s t a t u t e t o t h e whole of t h e f a c e amount of t h e checks. She should n o t be p u t t o p r o o f , between h e r and t h e bank, a s t o h e r ownership o f a p o r t i o n of t h e d e p o s i t . I concur i n t h e rest o f t h e opinion. ' . . J u s t i c e I a l s o join t h e m a j o r i t y oPil/nion w i t h t h e exception t h a t I j o i n J u s t i c e Sheehy i n h i s d i s s e n t . Judgment should be e n t e r e d i n f a v o r of p l a i n t i f f f o r t h e f a c e amount o f t h e two checks.

December 23, 1983

c6453f25-0bc0-4137-b33d-a8009b5edf36

Blackman v. Crowe

425 P.2d 323

11182

Montana

Montana Supreme Court

425 P.2d 323 (1967) Ruby BLACKMAN, Plaintiff and Respondent, v. Betty Lou CROWE, as Executrix of the Estate of Louie Kolokotrones, deceased, administratrix of the Estate of Dorothy Kolokotrones, deceased, Defendant and Appellant. No. 11182. Supreme Court of Montana. Submitted March 7, 1967. Decided March 22, 1967. Corette, Smith, Dean &amp; Robischon, Butte, Kendrick Smith (argued), Butte, for appellant. John L. Peterson (argued), Butte, John V. Potter, Jr. (argued), White Sulphur Springs, for respondent. *324 JAMES T. HARRISON, Chief Justice. This is an appeal by the defendant in a personal injury action from a judgment entered on a jury verdict in favor of plaintiff. The plaintiff-respondent is Mrs. Ruby Blackman and will be referred to as plaintiff or Mrs. Blackman. The defendant-appellant is Betty Lou Crowe, as executrix of the estate of Louie Kolokotrones, deceased, and as administratrix of the estate of Dorothy Kolokotrones, deceased. Mrs. Blackman's action arose out of an injury suffered in a fall that took place in the yard of Mr. and Mrs. Kolokotrones' home. However, prior to the trial of this case both Mr. and Mrs. Kolokotrones died. During the trial the action was dismissed as to Mrs. Crowe in her representative capacity as administratrix of the estate of Dorothy Kolokotrones, but that dismissal is not contested by plaintiff on this appeal. We will refer to Mrs. Crowe as defendant and to the Kolokotrones by name. The issue presented by this appeal is whether upon the basis of the evidence presented at the trial it can be stated as a matter of law that Mrs. Blackman was a licensee and not an invitee on the day she visited the Kolokotrones' residence, fell and suffered her injury. The record before this court reveals the following facts: Mrs. Blackman and the Kolokotrones had been friends and neighbors for about eight years prior to the accident. The Kolokotrones had three children. In early January, 1964, the Kolokotrones planned an afternoon birthday party for their youngest child, Connie Kay. Mrs. Kolokotrones invited Mrs. Blackman to the birthday party, which took place on January 23, 1964. Mrs. Blackman attended the birthday party and on her way home she slipped and fell in the Kolokotrones' yard. An important issue at the trial was for what purpose Mrs. Blackman had been invited to the birthday party. Since the Kolokotrones had died prior to the trial, the only significant testimony about why Mrs. Blackman was invited to the party and what she did at the party was given by Mrs. Blackman herself. On direct examination by her counsel, Mrs. Blackman explained her invitation to and activities at the birthday party in this manner: "Q. How did this invitation arise? A. We were together and was talking, and we were over to the store over on Harrison Avenue and I bought a gift for Connie Kay and Dorothy asked me if I would come over for the birthday. "Q. What did you say? A. I said, `yes.' "Q. Did she tell you why she wanted you to come? A. She said I could help serve the children. "Q. What was your response to this invitation? A. I said I would come over. "Q. And then did you actually go over to the Kolokotrones' home? A. Yes. I went over about I think about 3:00 or 3:30 I went over. I took a little gift to Connie Kay and she opened her gifts and then Dorothy and I went and she set the table and Connie Kay and the children got around the table so Connie Kay blowed the candles out off the cake. Dorothy cut the cake and I cut the ice cream and we served them at the table. We had a piece of the cake and some of the ice cream and ate that, and of course it was getting time for me to go home to get dinner for my husband, so I started home and fell." The other significant evidence which pertained to the purpose of Mrs. Blackman's attendance at the party consisted of a statement made by Mr. Kolokotrones prior to his death and introduced at the trial by the plaintiff without any objection and a part of Mrs. Blackman's deposition read into the record by defendant's counsel without objection by plaintiff. The relevant portion of Mr. Kolokotrones' statement reads as follows: "She [Mrs. Blackman] had come over to our house at *325 3:45 or 4:00 P.M. to bring a present for our daughter. She had cake and ice cream while she was there and visited for a while. She was not there to help run the party. * * *" The portion of the deposition read at the trial is as follows: "Q. How would you characterize, Mrs. Blackman, your presence in the Kolokotrones' home? By that I mean would you say that you were a guest there that day? A. Well, I would assume I was. "Q. You weren't there to work? A. No. "Q. You weren't there to see the Kolokotrones about any matter other than the matter of their daughter's birthday? A. That's right." The legal distinction between an invitee and a licensee has been discussed by this Court on several occasions in the past. An early discussion of this area of the law was contained in Jonosky v. Northern Pac. Ry. Co., 57 Mont. 63, 73, 187 P. 1014, 1015, where it is stated: "* * * An invitation is inferred where there is a common interest or mutual advantage, while a license is implied where the object is the mere pleasure, convenience, or benefit of the person enjoying the privilege." The "common interest or mutual advantage" test has been followed in many Montana cases since the Jonosky case, supra. For instance, see Vogel v. Fetter Livestock Co., 144 Mont. 127, 394 P.2d 766. In Maxwell v. Maxwell, 140 Mont. 59, 62, 63, 367 P.2d 308, 310, one issue presented was whether plaintiff was a social guest at the home of defendants who were her son and daughter-in-law or an invitee present at defendants' home at the request of the daughter-in-law for the purpose of helping the daughter-in-law with fixing the dinner, cleaning the dishes, and possibly taking care of the children in case defendants went out. This court made the following comments concerning how plaintiff's status was to be determined: "Thus, it was the purpose for which plaintiff went on the defendants' premises that determines her status. If she went there to perform services for her son and his wife then she might be found to be an invitee. But if she went to the holiday meal as a guest and was only to perform any customary and incidental chores then she was a licensee. * * *" Mrs. Blackman's own testimony shows that she accepted the invitation to the birthday party so she could bring her present and possibly help with the serving of the ice cream and cake. This testimony certainly falls quite short of demonstrating the required "common interest or mutual advantage" necessary to place Mrs. Blackman within the legal definition of an invitee. As the only adult attending the birthday party outside of the Kolokotrones themselves, Mrs. Blackman's act of helping serve the ice cream and cake can only be classified as a "customary and incidental" chore. Mrs. Blackman's status was never that of an invitee. Mrs. Blackman was only a licensee. At the close of the plaintiff's testimony and again at the end of the trial, defendant's counsel moved for a directed verdict on the ground that plaintiff had shown no right to relief since she had failed to establish her status as an invitee. The district court denied these motions, and in doing so it committed error. The judgment appealed from is reversed with instructions to enter judgment for defendant. ADAIR, DOYLE, and JOHN CONWAY HARRISON JJ., and VICTOR H. FALL, District Judge, sitting in place of CASTLES, J., concur.

March 22, 1967

5606a706-85bf-4cd2-af49-22d95dbe4fde

PENROD v HOSKINSON

N/A

13251

Montana

Montana Supreme Court

No. 13251 I N T H E SUPREME C O U R T O F THE STATE O F M O N T A N A 1976 JEANETTE PENROD, P l a i n t i f f , -VS - WILLIAM S. HOSKINSON, M.D., Defendant . C e r t i f i e d by: U.S. D i s t r i c t Court Honorable James F. B a t t i n , U.S. D i s t r i c t Judge presiding. Counsel of Record : For P l a i n t i f f : Cate, T,ynaugh, Fitzgerald and Huss , B i l l i n g s , Montana George W. Huss argued, B i l l i n g s , Montana For Defendant : Anderson, Symrnes, Forbes, Peete and Brown, B i l l i n g s , Montana Richard F. Cebull argued, B i l l i n g s , Montana Submitted: June 3, 1976 Decided : J U L 2 1 1976 Filed : $fJb 2 1 1 G7C'; M r . J u s t i c e Frank I. H a s w e l l d e l i v e r e d t h e Opinion of t h e Court. This is an o r i g i n a l proceeding f o r d e c l a r a t o r y judgment pursuant t o Rule 1 of t h e Rules of t h e Montana Supreme Court. It is based upon t h e c e r t i f i c a t i o n of t h e Hon. James F. B a t t i n , United S t a t e s D i s t r i c t Judge, presiding i n a c i v i l cause i n United S t a t e s D i s t r i c t Court f o r t h e D i s t r i c t of Montana e n t i t l e d " J e a n e t t e Penrod, p l a i n t i f f , v. William S. Hoskinson, M.D., defendant." The c e r t i f i c a t i o n states t h a t such l i t i g a t i o n involves a c o n t r o l l i n g question of Montana l a w a s t o which t h e r e is a sub- s t a n t i a l ground f o r a d i f f e r e n c e of opinion, v i z . whether s e c t i o n 93-2624, R.C.M. 1947, a s amended, o r s e c t i o n 93-2605, R.C.M. 1947, i s t h e a p p l i c a b l e s t a t u t e of l i m i t a t i o n . Judge B a t t i n has f u r t h e r c e r t i f i e d t h a t adjudication of t h i s question by t h e Montana Sup- reme Court w i l l m a t e r i a l l y advance u l t i m a t e termination of t h e f e d e r a l l i t i g a t i o n . The p r e c i s e question f o r determination a s c e r t i f i e d by Judge Battin: " I s § 93-2624, R.C.M. 1947, a s amended, enacted i n 1971, o r is 9 93-2605, R.C.M. 1947, t h e applic- a b l e s t a t u t e of l i m i t a t i o n i n a medical malpractice a c t i o n i n which t h e a l l e g e d negligent a c t took p l a c e i n May of 1969, t h e p l a i n t i f f a l l e g e d l y having discovered t h e negligence i n September of 1973, and t h e a c t i o n having been f i l e d on A p r i l 23, 1975?" Judge B a t t i n has c e r t i f i e d t h e following f a c t s giving rise t o t h i s issue: "On May 6, 1969, p l a i n t i f f underwent surgery i n t h e Holy Rosary Hospital i n Miles City, Montana, where she underwent a hysterectomy, g a l l bladder removal, and i n c i d e n t a l appendectomy. The doctor who performed t h e surgery was t h e defendant i n t h i s case, WILLIAM S. HOSKINSON, M.D. O n September 21, 1973, during a r o u t i n e physical examination, plain- t i f f was advised by a physician a t t h e Holy Rosary Hospital t h a t it appeared on X-ray t h a t she had a s u r g i c a l d r a i n i n t h e a r e a of her spleen. "On August 15, 1974, p l a i n t i f f underwent surgery a t Holy Rosary Hospital f o r removal of t h e d r a i n . " P l a i n t i f f f i l e d a Complaint charging t h e defend- a n t with malpractice on o r about t h e 23rd day of April, 1975." Defendant has f i l e d a motion f o r summary judgment i n t h e f e d e r a l c o u r t a c t i o n , claiming t h e a c t i o n is barred by s e c t i o n 93-2624, R.C.M. 1947. P l a i n t i f f has opposed t h e motion f o r summary judgment on t h e ground t h a t s e c t i o n 93-2605(3), R.C.M. 1947, i n conjunction with t h e "discovery d o c t r i n e " set f o r t h i n Johnson v. S t . P a t r i c k ' s Hosp., 148 Mont. 125, 417 P.2d 469, makes t h e f i l i n g of p l a i n t i f f ' s complaint timely. The question f o r determination involves a f i n d i n g of t h e s t a t u t o r y law of Montana, upon which t h e r e i s no guiding opinion, and s p e c i f i c a l l y d e a l s with t h e r e t r o a c t i v e e f f e c t of s e c t i o n 93-2624, R.C.M. 1947. Judge B a t t i n has c e r t i f i e d t h a t t h e answer t o t h e question is c o n t r o l l i n g i n t h e a c t i o n before him and t h a t adjudication thereof by t h e Montana Supreme Court w i l l m a t e r i a l l y advance u l t i m a t e termination of t h e f e d e r a l c o u r t l i t i g a t i o n . W e accepted j u r i s d i c t i o n on March 19, 1976, provided f o r t h e f i l i n g of b r i e f s , heard o r a l argument on June 3, 1976 and took t h e matter under advisement. W e observe t h a t a t t h e t i m e of t h e a l l e g e d malpractice on May 6, 1969, t h e a p p l i c a b l e s t a t u t e of l i m i t a t i o n was t h e general t o r t s t a t u t e of l i m i t a t i o n c o d i f i e d a s s e c t i o n 93-2605, R.C.M. 1947, providing i n p a r t : "93-2605. Within t h r e e years. Within t h r e e years: " * * * " 3 . A n a c t i o n upon an o b l i g a t i o n o r l i a b i l i t y , not founded upon an instrument i n w r i t i n g , o t h e r than a c o n t r a c t , account, o r promise." I n 1966 we held t h a t an a c t i o n f o r malpractice does not accrue u n t i l t h e p a t i e n t l e a r n s of it o r i n t h e e x e r c i s e of reasonable c a r e should have learned of it. Johnson v. S t . P a t r i c k s Hos- p i t a l , supra. I n 1971 before p l a i n t i f f ' s a c t i o n had become barred by s e c t i o n 93-2605, t h e Montana L e g i s l a t u r e enacted a s p e c i f i c s t a t u t e a p p l i c a b l e t o medical malpractice a c t i o n s . This s t a t u t e has been c o d i f i e d as s e c t i o n 93-2624, R.C.M. 1947, and provides i n p a r t : "93-2624. Actions f o r medical malpractice. Action f o r i n j u r y o r death a g a i n s t a physician o r surgeon * * * based upon such person's a l l e g e d professional negligence, o r f o r rendering profes- s i o n a l s e r v i c e s without consent, o r f o r e r r o r o r omission i n such person's p r a c t i c e , s h a l l be commenced within t h r e e ( 3 ) y e a r s a f t e r t h e d a t e of i n j u r y o r t h r e e (3) years a f t e r t h e p l a i n t i f f discovers, o r through t h e use of reasonable d i l i - gence should have discovered, t h e i n j u r y whichever occurs last, but i n no c a s e may such a c t i o n be commenced a f t e r f i v e (5) y e a r s from t h e d a t e of i n j u r y . However, t h i s t i m e l i m i t a t i o n s h a l l be t o l l e d f o r any period during which such person has f a i l e d t o d i s c l o s e any a c t , e r r o r , o r omission upon which such a c t i o n i s based and which is known t o him, o r through t h e use of reasonable d i l i g e n c e subsequent t o s a i d act, e r r o r o r omission would have been known t o him." I n 1973 t h i s s t a t u t e was f u r t h e r amended t o enlarge t h e c l a s s of persons s u b j e c t t o t h e s t a t u t e , b u t t h i s amendment i s i r r e l e v a n t t o t h e p r e s e n t case. The general t h r e e year t o r t s t a t u t e of l i m i t a t i o n i n s e c t i o n 93-2605 has a t a l l t i m e s r e - mained i n ef f ec t. The g i s t of p l a i n t i f f ' s contention i s t h a t s e c t i o n 93- 2624 should n o t be given r e t r o a c t i v e e f f e c t and applied t o bar p l a i n t i f f ' s a c t i o n because t h e l e g i s l a t u r e d i d not s o intend. Instead, p l a i n t i f f argues, t h e s t a t u t e of l i m i t a t i o n s i n e f f e c t a t t h e t i m e of t h e a l l e g e d malpractice, s e c t i o n 93-2605, i n conjunction with t h e "discovery d o c t r i n e " of Johnson , governs p l a i n t i f f ' s a c t i o n and p r e s e n t s no bar. The p r i n c i p a l contention of defendant is t h a t s e c t i o n 93-2624 is t h e applicable s t a t u t e of l i m i t a t i o n because t h e language e x h i b i t s a l e g i s l a t i v e i n t e n t t h a t it be applied t o claims a r i s i n g p r i o r t o 1971, t h e d a t e of i t s enactment. De- fendant argues t h a t s o applied, p l a i n t i f f ' s a c t i o n i s barred because f i v e years had expired before it w a s f i l e d . A t t h e o u t s e t we note s e c t i o n 12-201, R.C.M. 1947, which provides : "No l a w contained i n any of t h e codes o r o t h e r s t a t u t e s of Montana i s r e t r o a c t i v e unless expressly SO declared." This s t a t u t e c r e a t e s a presumption a g a i n s t construing a s t a t u t e r e t r o a c t i v e l y . Dunham v. Southside National Bank of Missoula, Mont . , 548 P.2d 1383, 33 St.Rep. 372, 376, and c a s e s c i t e d t h e r e i n . The r a t i o n a l e behind t h i s presumption was f i r s t expressed by t h i s Court i n Sullivan v. C i t y of Butte, 65 Mont. 495, 498, 2 1 1 P. 301, and quoted with approval i n Dunham: "'While our Constitution does n o t f o r b i d t h e enactment of r e t r o s p e c t i v e laws generally, it is a r u l e recognized by a u t h o r i t i e s everywhere t h a t r e t r o s p e c t i v e laws a r e looked upon with d i s f a v o r . It is a maxim s a i d t o be a s o l d as t h e law i t s e l f t h a t a new s t a t u t e ought t o be prospective, n o t r e t r o s p e c t i v e , i n its operation. * * * The maxim has its foundation i n t h e pre- sumption t h a t t h e l e g i s l a t u r e does n o t intend t o make a new r u l e f o r p a s t t r a n s a c t i o n s and every reasonable doubt w i l l be resolved a g a i n s t a r e t r o s p e c t i v e o p e r a t i o n . ' " The i n t e n t of t h e l e g i s l a t u r e t o g i v e a s t a t u t e r e t r o - a c t i v e e f f e c t a s required by s e c t i o n 12-201, must be determined by t h e s t a t u t e i t s e l f and from no o t h e r source. C i t y of Harlem v. S t a t e Highway Comm'n, 149 Mont. 281, 425 P.2d 718. W e f i n d nothing i n s e c t i o n 93-2624 e x h i b i t i n g a l e g i s - l a t i v e i n t e n t t h a t it be applied r e t r o a c t i v e l y . Absent such i n t e n t , it is applicable only prospectively. The remedy v. r i g h t d i s t i n c t i o n drawn i n G i l l e t t e v. Hibbard, 3 P4ont. 412 and Whitcraft v. Semenza, 145 Mont. 94, 399 P.2d 757, does not mandate r e t r o a c t i v e a p p l i c a t i o n of s e c t i o n 93-2624. This d i s t i n c t i o n is s i g n i f i c a n t only i n determining t h a t t h e r e a r e no c o n s t i t u t i o n a l o r s t a t u t o r y o b s t a c l e s t o l e g i s l a t i v e enactment of s t a t u t e s r e l a t i n g t o remedies which a r e r e t r o a c t i v e operation. The d i s t i n c t i o n is i r r e l e v a n t determination of l e g i s l a t i v e i n t e n t t h a t a s t a t u t e apply r e t r o a c t i v e l y . Guiterman v. Wishon, 21 Mont. 458, 54 P. 566, is d i s - tinguishable and o f f e r s no solace t o defendant. There t h e former f i v e year s t a t u t e of l i m i t a t i o n on a c t i o n s on account was repealed and a new t h r e e year s t a t u t e of l i m i t a t i o n enacted. e If t h e new s t a t u t e of l i m i t a t i o n w a s n o t given r e t r o a c t i v e e f f e c t t h e r e would be no s t a t u t e of l i m i t a t i o n a t a l l on a c t i o n s on account. Under such circumstances, t h i s Court found a l e g i s - l a t i v e i n t e n t t o make t h e new s t a t u t e of l i m i t a t i o n r e t r o a c t i v e . Defendant cites t h e Arkansas c a s e of S t e e l e v. Gann, 197 Ark. 480, 123 S.W.2d 520, 120 A.L.R. 754, where a contrary r e s u l t was reached i n support of h i s p o s i t i o n here. The r u l i n g i n S t e e l e is based on t h e proposition t h a t a s t a t u t e of l i m i t a - t i o n s a f f e c t s t h e remedy, not t h e r i g h t , and is t o be applied t o a l l cases t h e r e a f t e r brought i r r e s p e c t i v e of when t h e cause of a c t i o n a r o s e , s u b j e c t t o a reasonable period t h e r e a f t e r i n which t h e r i g h t can be a s s e r t e d . This is d i r e c t l y c o n t r a r y t o Montana's s t a t u t e , s e c t i o n 12-201, which p r o h i b i t s r e t r o a c t i v e operation of s t a t u t e s "unless expressly s o declared". The F l o r i d a c a s e s of DeLuca v. Mathews, (Fla.App. 1974) 297 S.2d 854, and (Fla.App. 1974) Maltempo v. Cuthbert,/288 S.2d 517, c i t e d by p l a i n t i f f , a r e more persuasive i n view of our s t a t u t e s and c a s e law. Accordingly, w e hold t h a t s e c t i o n 93-2605, R.C.M. 1947, is t h e a p p l i c a b l e s t a t u t e of l i m i t a t i o n i n a medical m a l - p r a c t i c e i n which t h e a l l e g e d negligent a c t took place i n May 1969, t h e p l a i n t i f f a l l e g e d l y having discovered t h e negligence i n September 1973, and t h e a c t i o n having been f i l e d on A p r i l 2 3 , 1 9 7 5 , pursuant t o t h e c e r t i f i c a t e of f a c t s and i s s u e s herein. J u s t i c e W e concur: Hon. Edward Dussualt, D i s t r i c t Judge, s i t t i n g i n place of M r . Chief J u s t i c e James T. Harrison.

July 21, 1977

4d6e23a0-3560-482e-b2ad-081ea44d4215

Gormley v. Montana Deaconess Hospital

423 P.2d 301

11132

Montana

Montana Supreme Court

423 P.2d 301 (1967) Viola GORMLEY, Plaintiff and Respondent, v. MONTANA DEACONESS HOSPITAL, Defendant and Appellant. No. 11132. Supreme Court of Montana. Submitted December 13, 1966. Decided January 11, 1967. Rehearing denied February 21, 1967. Smith &amp; Emmons, Great Falls, for appellant. Alexander, Kuenning &amp; Hall, Great Falls, Paul E. Hoffmann, Glasgow, for respondent. JAMES T. HARRISON, Chief Justice. This is an appeal from a judgment entered on a special jury verdict which awarded the plaintiff $20,145.36 in damages and which awarded the defendant $3,980.72 on its counterclaim. The plaintiff-respondent is Viola Gormley and will be referred to as either the plaintiff or Mrs. Gormley. The defendant-appellant is the Montana Deaconess Hospital, a Montana corporation, and will be referred to as the defendant or the hospital. The plaintiff's action arose out of an injury suffered while a patient at the hospital. The defendant's counterclaim was for services rendered to plaintiff during her *302 stay in the hospital. Although the appeal is from the entire judgment entered by the district court, the defendant has directed its attack at that portion of the trial, verdict, and judgment which deals with plaintiff's recovery. The defendant makes six specifications of error which raise the following questions: Whether the district court properly instructed the jury on the doctrine of res ipsa loquitur as it applies to the facts of this case. Whether the district court erred by instructing the jury that nurses were instrumentalities of the hospital. The record before this court reveals the following facts: On February 19, 1963, Mrs. Gormley, about sixty years of age, entered the hospital for a vaginal hysterectomy operation. The operation was performed on February 20, 1963, by Dr. H.W. Fuller, who was assisted by Dr. Robert E. Asmussen. Following the completion of the operation, Mrs. Gormley was returned to her hospital room to begin her post-operative period of recovery. Dr. Fuller saw Mrs. Gormley on the evening of the operation, February 20, and he examined her on the next morning, February 21. Dr. Fuller found that Mrs. Gormley's recovery during the first 24 hours seemed quite normal but that she did not appear to be fully aware of the circumstances or conditions around her due to the recent anesthesia and drugs given for pain. About 4:40 p.m. on February 22, 1963, Mrs. Gormley experienced a grand mal seizure. This seizure lasted about three minutes, and it was followed by a second grand mal seizure which occurred approximately fifteen minutes after the first seizure had subsided. When the first seizure began, only Mr. Gormley was in the room with his wife. He immediately summoned help. A nurse, two nurse's aides, and an orderly came to the room. Dr. Asmussen was summoned from his office immediately, and he arrived as the second seizure was beginning. As Dr. Asmussen entered the hospital, he summoned Dr. F. Hughes Crago, a specialist in internal medicine, who arrived very shortly after Dr. Asmussen. Shortly after the second seizure subsided, Dr. Crago examined Mrs. Gormley in an attempt to determine the cause of the seizure. Dr. Asmussen observed the examination but did not take an active part in this examination. Dr. Crago made another examination of Mrs. Gormley about 9:00 p.m. of the same evening. Upon the advice of the doctors, special registered nurses were employed to give round the clock nursing care to Mrs. Gormley. This care began around 6:00 p.m. on February 22. Around 1:00 p.m. on February 23, the special nurse noticed severe swelling and bruises on Mrs. Gormley's right shoulder. At 8:00 a.m., February 23, Dr. Crago again examined Mrs. Gormley and ordered x-rays taken of Mrs. Gormley's right arm and shoulder. It was subsequently confirmed that Mrs. Gormley had sustained a comminuted fracture of the right humerus. Dr. Fuller testified that Mrs. Gormley did not have any injury to her arm and shoulder before she entered the operating room or after she came out of the operating room. Dr. Crago testified that he did not have an opinion as to what caused the fracture. Upon the basis of his examinations of Mrs. Gormley on the evening of February 22, he thought that the injury had to have happened between 9:00 p.m., February 22, and 8:00 a.m., February 23. However, Mrs. Gormley was constantly attended to from the time of her first grand mal seizure until the time Dr. Crago ordered the x-rays to determine the extent of the injuries to her arm and shoulder. No unusual incident happened to her during this time. Dr. John Wolgamot, a specialist in orthopedic surgery, also had no opinion as to how the injury occurred. *303 Dr. Ernest Cashion whose practice includes general surgery and neurology and neurological surgery also examined Mrs. Gormley on the evening of the seizures in an attempt to determine their cause. He diagnosed the seizures as of a metabolic type, caused by her hospitalization, surgery, drugs, and possible blood transfusions and not due to the injury which Mrs. Gormley had suffered. Mr. Gormley testified that he came to his wife's hospital room around 8:30 a.m. on February 22. He stayed until noon and returned about 2:30 p.m. the same day. During the time Mr. Gormley was with his wife, nothing unusual happened to her until she experienced the grand mal seizure at 4:40 p.m. Mr. Gormley further testified that when he left the hospital at noon, Mrs. Gormley was receiving an intravenous feeding in the right arm. On his return the intravenous feeding was in the left arm. The hospital records indicate that the intravenous feeding was started at 9:55 a.m. and discontinued at 3:00 p.m., but there is no notation of the changing of arms. The nurses' notes that were kept on Mrs. Gormley while she was a patient in the hospital were introduced in evidence by the plaintiff. The hospital regulations require the registered nurse on duty to administer intravenous feedings and to make initialed or signed notation thereof in the nurses' notes. The nurses' notes for the hours of 7:00 a.m. to 3:00 p.m. on February 22, 1963, are not signed by any registered nurse. It was never established who the registered nurse was that was on duty that day during those hours. Mrs. Emma Golie was a student practical nurse employed by the hospital at the time of Mrs. Gormley's hospitalization. The hospital records indicate that she was the only person having charge of Mrs. Gormley from 7:00 a.m. to 3:00 p.m. on February 22. Mrs. Golie testified that it was her recollection that there was no intravenous feeding in the morning and that it was started after lunch. This recollection is not in agreement with the unsigned hospital records as hereinbefore noted. From the various hospital records and the testimony of other persons who observed Mrs. Gormley during the first few days after her operation, it is apparent that she was in a drugged condition from the time she left the operating room up to the time of the seizure and that for some time after the seizures at least until the time the injury was discovered by Dr. Crago she was in a comatose state, unable to make any voluntary movements. There was ample evidence introduced which showed that Mrs. Gormley was dependent upon the hospital for her care and attention. She had undergone a serious major operation. She was receiving medication to relieve pain. She has no recollection of the events for about a three week period. No testimony was given which would indicate that this inability to recall was an unusual occurrence. Another important issue that was well covered at the trial was the length of time that would pass before swelling and discoloration would appear on an individual who had experienced this type of injury. At least three doctors gave their opinions as to how long a time it would take before the swelling and discoloration would begin. Dr. Asmussen testified that the swelling could occur within fifteen minutes and that discoloration could occur at the very least time within two or four hours or longer. Dr. Crago testified that swelling would appear from one-half hour to two hours after the injury and that discoloration could occur in two, three, four, or five hours. Dr. Wolgamot said the time in which the swelling and discoloration would appear was a very rough one to estimate and that it could occur roughly between four and forty-eight hours. The testimony given at the trial shows that no one was able to say how or when the injury to Mrs. Gormley occurred. *304 It should be noted that at the time the defendant moved for a directed verdict the court admitted there was a complete conflict in the evidence as to when the plaintiff sustained her injuries and expressed the feeling that a special verdict might be required, and also that if the fracture occurred at or after the second seizure the defendant would not be liable. The motion was denied and the court thereafter, without objection, instructed the jury to return a special verdict. In that special verdict the jury found that the plaintiff sustained her fracture prior to the start of her second seizure on February 22, 1963, and further, that the defendant was negligent in its care of the plaintiff and that such negligence was the proximate cause of the plaintiff's injuries. This brings us to a consideration of the first question raised on this appeal, namely, whether the district court's instructions on the doctrine of res ipsa loquitur were correct. It has been the defendant's position throughout the entire course of this case both trial and appellate level that "The plaintiff must establish the thing that caused the injury since the doctrine of res ipsa loquitur permits an inference that the known act that produced the injury was a negligent act it does not permit an inference as to what act did produce the injury * * *." and that various instructions were improper because they did not add this requirement. (Emphasis supplied.) To preface our discussion we quote from Stocking v. Johnson Flying Service, 143 Mont. 61, 387 P.2d 312, these comments: "In the commission of certain injuries it is impossible for a party to prove facts showing negligence, but by common knowledge and experience it is clear that the injury would not have occurred but for the responsible party's negligence. When this situation arises, courts generally apply the doctrine of res ipsa loquitur, or `the thing speaks for itself.' Maki v. Murray Hospital, 91 Mont. 251, 263, 7 P.2d 228. "Res ipsa loquitur is defined as: `That when an instrumentality which causes injury, without any fault of the injured person, is under the exclusive control of the defendant at the time of the injury, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, then the law infers negligence on the part of the one in control as the cause of the injury.' [Emphasis supplied.] Whitney v. Northwest Greyhound, 125 Mont. 528, 533, 242 P.2d 257; Davis v. Trobough, 139 Mont. 322, 326, 363 P.2d 727. "`This doctrine is not an exception to the rule that the burden is on the plaintiff to prove actionable negligence, nor does it permit a recovery on mere proof of the injury; it merely "has the force of a disputable presumption of law and supplies the place of proof necessarily wanting" when the injured party cannot disclose the cause of his injury, but it is apparent prima facie that the accident would not ordinarily have happened had the defendant exercised ordinary care. [Cases cited.] "`Further, this doctrine is not, as sometimes said, proof of negligence by a species of circumstantial evidence, the inference to be drawn by the jury from the probability of negligence resting, not upon evidence, direct or circumstantial, but upon a postulate from common experience that accidents of the kind involved do not ordinarily occur in the absence of negligence. [Reference material cited.]' Maki v. Murray Hospital, supra." Other recent cases in which the court has dealt with res ipsa loquitur include Krohmer v. Dahl, 145 Mont. 491, 402 P.2d 979; Jackson v. William Dingwall Co., 145 Mont. 127, 399 P.2d 236, and Baumgartner v. National Cash Register Co., 146 Mont. 346, 406 P.2d 686. Insofar as they were applicable in these cases we have followed the same criterion set forth in our quotation from Stocking, supra. In our opinion this conception of the doctrine is the majority view, and while we do not wish to unduly extend this opinion on this point we call *305 attention to the annotation "Res Ipsa Loquitur in Action Against Hospital for Injury to Patient," appearing in 9 A.L.R.3d 1315, 1319, for a full discussion of all aspects of this doctrine. It is therein stated by the author of the annotation that: "The traditional conditions to applicability of the res ipsa doctrine in a given case, or, as they are sometimes called, the traditional `elements' of the rule namely, defendant's control of the injury-producing instrumentality, the unusualness of the occurrence in the absence of negligence, superior knowledge on the part of the defendant as to the cause of the injury, and, at least in some jurisdictions, absence of voluntary action on the part of the injured person are all applicable in actions against a hospital for injury to a patient." In our view these traditional "elements" are all present here. The same elements are stated in different language by the Washington Supreme Court in Leach v. Ellensburg Hospital Association, 65 Wash. 2d 925, 400 P.2d 611, 9 A.L.R.3d 1303, in these words: "* * * In a recent decision by this court, the doctrine of res ipsa loquitur as it applies to hospitals was summarized and discussed. In Horner v. Northern Pacific Beneficial Ass'n Hospitals, Inc., 62 Wash. 2d 351, 359, 382 P.2d 518, 523 (1963), this court said: `Further proof of negligence is not essential to take a case to the jury or to overcome challenges to the sufficiency of the evidence where (1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone's negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff. * * *'" Instructions No. 26 and 28 contain the elements which the plaintiff had the burden of proving. We will set forth the portions of Instructions No. 26 and 28 which cover each of the elements outlined by the Washington court. Element (1) is covered by Instruction No. 26, subsection 6, and Instruction No. 28, subsection 3, which read: "That such injuries do not happen in the ordinary course of things had the defendant hospital used ordinary care under the circumstances." and "That such injuries do not happen in the ordinary course of things when the person who has control uses ordinary care under the circumstances." Element (2) is covered by Instruction No. 26, subsections 1 and 7 and Instruction No. 28, subsection 2, which read: "That plaintiff following said operation was under the exclusive care and control of defendant hospital, its nurses, servants, guards and employees" and "That she sustained the damages she has alleged, as a proximate cause of defendant hospital's failure to look after, guard or care for her." and "That some certain instrumentality by which her injuries were proximately caused was in the possession and under the exclusive control of defendant hospital at the time the injuries were sustained; nurses, servants, guards and employees are to be regarded as instrumentalities." Element (3) is covered by Instruction No. 26, subsection 2, which reads: "That following said operation she was so incapacitated in mind and body by reason of anaesthesia, drugs or sedatives as to be unable to care for herself and to be unaware of her action." The plaintiff bore the burden of proving each of these elements. The plaintiff was not required to establish the THING that caused the injury. If such a requirement were added to this case, plaintiff would not be able to recover although it was shown that she suffered an injury while a patient in the hospital. Common sense tells us that such an injury cannot take place without negligence on someone's part. Thus, the main issue at the trial was who was responsible for the injury. The doctrine of res ipsa loquitur is simply the conduit by which the plaintiff gets her *306 case to the jury on this question of negligence. The doctrine leaves it up to the jury to decide the question of who was negligent. The defendant was given the opportunity to present its testimony to refute plaintiff's contentions that the hospital was negligent. In this case defendant simply was not successful in explaining to the jury how the injury could occur without negligence on its part. The district court's instructions on res ipsa loquitur as it applies to the facts of this case were correct. We come now to a consideration of whether nurses were instrumentalities of the hospital in this case. We believe that the position of the nurse in cases similar to the instant case has been discussed by previous decisions of this court. The nurse can be an agent or employee of the hospital, Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228, Davis v. Trobough, 139 Mont. 322, 363 P.2d 727, or of a doctor, Simons v. Northern Pacific Ry. Co., 94 Mont. 355, 22 P.2d 609. The nurse can even be a completely independent contractor. But the facts of each case decide the nurse's position. We would be closing our eyes to reality if we were to rule that the ordinary nurse, hired by the hospital, paid by the hospital, assigned to certain patients by the hospital, and generally responsible to the hospital to obey its rules and regulations is not an employee or agent of the hospital. Such is simply not the case. Nurses such as we have described here, working on the floor of the hospital are employees of the hospital and come under the doctrine of respondeat superior. By making this ruling, we do not rule out cases where it can be clearly shown that the nurse is an agent of some person or party other than the hospital. We simply hold that in this case the hospital failed to show that its regular nursing staff was responsible to any person or party other than itself for the care and attention of Mrs. Gormley. We find no error in the instruction of the district court in regard to including nurses as instrumentalities of the hospital on the basis of the facts presented in this case. We have carefully considered each specification of error and find them all without merit. Finding no error, we affirm the judgment appealed from. ADAIR, DOYLE, JOHN CONWAY HARRISON and CASTLES, JJ., concur.

January 11, 1967

8a281376-0092-40b7-a1ed-7d16a190cc84

State v. Sanders

424 P.2d 127

11163

Montana

Montana Supreme Court

424 P.2d 127 (1967) The STATE of Montana, Plaintiff and Respondent, v. Roy SANDERS, Defendant and Appellant. No. 11163. Supreme Court of Montana. Submitted February 10, 1967. Decided February 23, 1967. Maurice Maffei and John Frankovich (argued), Butte, for appellant. Forrest H. Anderson, Atty. Gen., William A. McCormick, Asst. Atty. Gen., Helena, Mark Sullivan, County Atty. (argued), John Prothero, Deputy County Atty., Butte, for respondent. JAMES T. HARRISON, Chiwf Justice. This is an appeal by the defendant from a judgment entered on a jury verdict of guilty of first degree murder. The defendant was sentenced to life imprisonment. The defendant-appellant is Roy H. Sanders and will be referred to as the defendant. The defendant makes four specifications of error which in substance contend that the verdict and judgment are contrary to the law and evidence because the jury did not find the defendant insane at the time he committed the crime with which he was charged and convicted. Although the defendant makes the contention that the judgment and verdict are contrary to the law, the defendant's brief does not refer this court to a single error of law made by the district court. Thus, the single issue presented by this appeal is whether there is sufficient evidence to support the jury's verdict. The information charging the defendant with first degree murder reads in part: "That at the County of Silver Bow, State of Montana, on or about the 5th day of August, A.D. 1965, * * * the said defendant did willfully, unlawfully, and wrongfully, knowingly, intentionally, feloniously, deliberately and premeditatively, with and of his malice aforethought, kill and murder one Robert Henningsen, a human being, contrary to the form, force, and effect of the statute is such case made and provided, and against the peace and dignity of the State of Montana." The defendant testified in his own behalf at the trial. From defendant's own *128 testimony the events that took place on the day of the shooting can be summarized. The shooting took place on August 5, 1965. Defendant was in his early seventies and resided at the Silver Bow Homes in Butte, Montana. Defendant received his monthly social security check on the 3rd or 4th of August, 1965. When defendant left his home on August 5, 1965, to pay his rent and make some purchases in uptown Butte, he took with him a small 38-caliber revolver. Defendant paid his rent as planned and proceeded to uptown Butte. His first stop uptown was at Penney's department store to buy a pair of slippers. Then he went to the State liquor store and bought a bottle of brandy. Both of these stores are located on Park Street which runs generally in an east-west direction. His next intended stop was the Royal Bakery on North Main Street, which runs generally in a north-south direction. Defendant retraced his path over Park Street. He did not go all the way to Main Street but used an alley that runs north-south between Park Street and Broadway Street. This alley exits on Broadway Street at a point in between the Prudential Federal Savings and Loan Building and the Christie Furniture Store. As the defendant came out of the alley onto Broadway Street, he saw Mr. Robert Henningsen in the display window of the Christie Furniture Store. Defendant stated that Mr. Henningsen was moving furniture around in the window fixing the display like a bedroom. Defendant stated that he saw two or three other persons also working in the store. Sometime after defendant had made the purchase at Penney's department store, he had placed his small revolver in the package containing the slippers. Defendant entered the Christie Furniture Store and walked to the display window where Mr. Henningsen was working. There was an exchange of greeting. Then, defendant took out the small revolver and said to Mr. Henningsen, "I got something for you, Bob, you thieving son of a bitch." Defendant shot Mr. Henningsen one time. Working in or near the display window with Mr. Henningsen were three other Christie Furniture Store employees. They were Catherine McIntosh, Glen Lewis, and Wendell Pollard. Their testimony concerning the shooting substantially agreed with the account told by the defendant. After the shooting Wendell Pollard wrestled with the defendant and knocked him to the ground. Glen Lewis took the gun from the defendant while the defendant and Mr. Pollard were scuffling. Defendant did not attempt to use the gun on the other employees in the display window. After the gun had been taken from him, defendant sat in a chair in the store waiting to be taken to the police station. At this time he stated to Mr. Pollard, "I should have shot you, too." With the exception of this one threatening comment, Mr. Pollard and Mr. Lewis testified that defendant sat quietly in the chair waiting for the police. Thus, the events surrounding the actual shooting are not in dispute. Section 94-201, R.C.M. 1947, provides in part: "All persons are capable of committing crimes except those belonging to the following classes: "3. Lunatics and insane persons. * * *" Section 94-119, subd. (2), R.C.M. 1947, provides in part: "When the commission of the act charged as a crime is proven, and the defense sought to be established is the insanity of the defendant, the same must be proven by the defendant by a preponderance of the testimony * * *." At the trial the defendant attempted to make use of the defense of insanity. To support his contention of insanity the defendant testified, several exhibits were introduced, and the expert testimony of a psychiatrist was offered for the jury's consideration. *129 While testifying, defendant was given a complete opportunity to tell his story to the jury. He was allowed to explain his version of the business dealings he had had with Christie Furniture Store and Mr. Henningsen. Defendant was allowed to trace many incidents in his life in which he alleged he had been unjustly treated or unfairly treated by courts of law, doctors, attorneys and others. He stated his reasons for shooting Mr. Henningsen. There was no attempt by the county attorney to limit the defendant's testimony to the facts surrounding the shooting incident. Every fact which the defendant wished to put before the jury was allowed. Two of the exhibits introduced by the defendant dealt with his business dealings with Christie Furniture Store. The other two exhibits were letters one written by defendant to an attorney concerning another legal action in which defendant had been involved and the attorney's reply. The purpose of introducing these exhibits was undoubtedly to demonstrate that defendant was confused as to the actual dealings that had taken place between him and Christie Furniture Store and to further show by his letter his confused state of mind that he would never receive "justice" in or from a court of law. Dr. Henry W. Hogan, a Missoula psychiatrist, testified concerning defendant's sanity. Dr. Hogan had examined defendant on February 11, 1966, at the Silver Bow County jail. This examination lasted about one and a quarter hours and took place about one week before the trial. Dr. Hogan's opinion was based on this examination and his observation of the defendant in the courtroom during the course of the trial, and other history of the defendant that was gathered from defendant's son, and a review of the psychiatric report of the Montana State Hospital at Warm Springs. Dr. Hogan testified that it was his opinion that at the time of the trial the defendant was not "able to distinguish between right and wrong as the rest of society views it." Dr. Hogan testified that it was his opinion that the defendant "was unable to choose right from wrong at that time (the day of the shooting) as you and I know it." Dr. Hogan further testified that the defendant was a "very dangerous man." To rebut this contention of the defendant concerning insanity, the state offered the testimony of Dr. M.F. Gracia, a psychiatrist at the Montana State Hospital at Warm Springs. Less than two weeks after the shooting defendant had been sent to Warm Springs for a psychiatric examination and evaluation. This examination and confinement lasted for about two months. Dr. Gracia repeatedly examined the defendant during his confinement. On the basis of this period of confinement and examination, Dr. Gracia testified that he felt that the defendant "knew right from wrong at the time" when he was being examined in Warm Springs. Dr. Gracia was reluctant to give any opinion as to the mental condition of the defendant at the time of the shooting. In this regard he stated, "(W)hat happened before it (the period the defendant was confined in Warm Springs for examination) is pretty difficult to say." In summary Dr. Gracia testified that defendant had a "paranoiac personality"; that having a touch of paranoia does not make a man a psychotic or an insane person; that on the basis of the testimony that he had heard the defendant give in court he felt that defendant knew right from wrong then; and finally, that the defendant "would be a dangerous person" to be at large. It was a legal defense for the defendant to allege insanity as a bar to his being convicted of the crime charged, but by using this defense defendant was charged with the burden of proving to the jury "by a preponderance of the testimony" that he was in fact insane as required under § 94-201. As previously noted, defendant makes no contention that the district court's instructions to the jury concerning insanity are in *130 error. In his brief, defendant quotes from several Montana cases which have discussed the type of instructions that are proper in insanity defense cases. Defendant makes no contention that these cases should be set aside. Rather defendant contends that he has carried the burden of proving to the jury that he was insane at the time of the crime and that the verdict is contrary to the law and evidence. We cannot agree with this contention. The fact that defendant shot and killed Mr. Henningsen was clearly established at the trial, and defendant does not deny it. Defendant's own testimony demonstrates that his activities on the day of the shooting were quite normal and followed his usual routine. The testimony of the various witnesses to the shooting demonstrated that defendant was quite calm after the shooting had occurred. The testimony of the two psychiatrists who testified at the trial differs in some respects, but it was for the jury to resolve whatever conflicts that might have existed in the testimony. The jury did not resolve these conflicts in the defendant's favor. In State v. Noble, 142 Mont. 284, 304, 384 P.2d 504, 514, we commented on this court's function in reviewing the jury's verdict in a criminal matter: "* * * the weight of the evidence in a criminal matter is for the jury to determine in the first instance. If the circumstances reasonably justify the verdict, this court must assume existence of every fact which the jury could have reasonably deduced from all the evidence to reach its verdict." There was considerable evidence in this case which indicated that the defendant was sane at the time he shot Mr. Henningsen. It was for the jury to weigh the evidence presented which might have indicated that the defendant was insane. In our view the evidence in this case is sufficient to sustain the jury's verdict. The judgment appealed from is affirmed. ADAIR, DOYLE, JOHN C. HARRISON and CASTLES, JJ., concur.

February 23, 1967

fef88b73-ee83-4bd7-ac43-d75e779078e6

NARUM v CITY OF BILLINGS

N/A

83-099

Montana

Montana Supreme Court

No. 8 3 - 9 9 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 3 LARRY NARUM, P l a i n t i f f and A p p e l l a n t , CITY OF BILLINGS; BARRY BERLINGER, and RICHARD WAGNER, D e f e n d a n t s , R e s p o n d e n t s & C r o s s - a p p e l l a n t s . APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of Y e l l o w s t o n e , T h e H o n o r a b l e D i a n e G. B a r z , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : P a t t e n & R e n z ; J a m e s A. P a t t e n & John K. A d d y , B i l l i n g s , M o n t a n a For R e s p o n d e n t s & C r o s s - A p p e l l a n t s : P e t e r s o n , Schofield & L e c k i e ; D a n e C. Schofield, B i l l i n g s , M o n t a n a C r o w l e y Law F i r m ; R a n d a l l B i s h o p , B i l l i n g s , M o n t a n a Stephens & C o l e ; R o b e r t L. Stephens, B i l l i n g s , M o n t a n a S u b m i t t e d on B r i e f s : O c t o b e r 6 , 1 9 8 3 D e c i d e d : D e c e m b e r 2 2 , 1 9 8 3 F i l e d : DEG 2 2 1,983 8 4?/ d L L k m , . . - C l e r k Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Larry Narum filed a complaint June 9, 1981 in the Thirteenth Judicial District Court, County of Yellowstone, naming as defendants the City of Billings, Barry Beringer and Richard Wagner. The complaint requested judgment against the defendants for twice the alleged value of paint equipment Narum lost due to defendants1 actions, or $5,600 plus costs. Following a bench trial, it was found that: (1) Narum lost paint equipment valued at $1,843.70 due to the negligence of the City of Billings; (2) Beringer was unjustly enriched in the amount of $800 when he sold Narum's equipment to Wagner for that sum; and (3) Wagner was a bona fide purchaser for value without notice and entitled to retain the paint equipment. Judgment was entered November 19, 1982, limiting Narumls recovery to the actual value of the lost equipment. Beringer was ordered to pay Narum the $800 by which he was unjustly enriched and the City was ordered to pay Narum the remaining $1,043.70. A motion was subsequently filed by Narum requesting the trial court to reconsider its judgment insofar as it failed to award Narum double damages pursuant to section 70-5-209, MCA (1981). In addition, defendant Beringer filed a motion and supporting memorandum requesting the trial court to amend that portion of its judgment finding Beringer to have been unjustly enriched and ordering him to pay Narum $800. A hearing was held December 30, 1982, following which an order denying both motions was issued. A notice of appeal from both the judgment and the order was filed by Narum on January 26, 1983. Beringer and the City of Billings have filed cross appeals, Beringer requesting reconsideration of its motion to amend and the City requesting reconsideration of the judgment against it. Larry Narum was hired in 1979 to paint a warming house at Terry Park in Billings, Montana. One of Narum's employees completed the paint job on Friday, November 2, 1979. He then, per instructions from Narum, left the spray painting equipment by the curb near the warming house to be picked up by Narum later that evening. Barry Beringer noticed the equipment on his way to dinner that evening. When the equipment was still there on his return, Beringer decided to call- the police. Beringer testified at trial that he presumed the equipment belonged to the City of Billings since it had obviously been used to paint a public building in a city park and that, as a concerned taxpayer, he notified the police of the equipment in order to prevent its theft. Beringer remained with the equipment until the police arrived, then told the investigating officer that if no one claimed the property, he would be interested in having it. The investigating officer told Beringer to check with the department in thirtv days and if no one had claimed the property, it would be his. The investigating officer's report of the incident contained the following information: 1. Complainant reports he found several items near the warming house in Terry Park. 2. Complainant also reports that someone had been painting the warming house and that the items probably belong to that person. 3. The found items consist of: (1) a small prop air compressor; (2) an eight foot ladder; (3) three gallons of paint; (4) five gallon mixing cans; (5) one five gallon can containing an unknown chemical; (6) an extension cord; and (7) a paint scraper. Reringer checked with the police department after the thirty days had passed and was told by property Officer Stanley Frank that he would have to wait another sixty davs before he could claim the property. Beringer testified at trial that Officer Frank told him: "'Technically, we have to hold it for a year and then advertise it, and then we will give it to you. ' But he said, 'we don't have the budget and we don't have the place to store it, so we just wait 90 days. And then after 90 days, that allows people to go on vacation, extended vacation, and stuff.' And that's what he told me." Tr. p. 20. At the end of the ninety days, Beringer once again contacted Officer Frank and was told he could claim the property. Beringer and Officer Frank testified in detail concerning their conversation when Beringer picked up the property. BERINGER: "Q. Was there any time that anyone conveyed to you that the idea that there had been any report filed that this had been lost or was missing or had been stolen? "A. No. "Q. Did you have any idea that such a report had been filed? "A. No. "Q. Would it be fair to say that as far as you could tell from the information given to you by the police report that the property was abandoned? "A. Yeah. "Q. Did you ask whether you could sell the property? "A. I asked if it was mine, and I was told that it was. "Q. Prior to the time that property was delivered to you by the City, on February lst, 1980, did you think you had any rights whatsoever to that property? "A. Before February? "Q. Before it was delivered to you, did you consider it yours in any way? "A. No. "Q. Whose do you think it was? "A. The City's. (Tr. pp. 21, 22) OFFICER FRANK: "Q. Did you tell Mr. Beringer when he came to pick up the property that no claims had been filed on it? "A. I told him that I didn't receive one. " Q . So you indicated to him that it was unclaimed? "A. When I gave it to him. " Q . It would have been wrong to give it to him if you had knowledge that someone else owned it? "A. (Nods head affirmatively.) (Tr. p. 46) A witness to most of the conversation, David Webber, confirmed Beringer's testimony. Relying on Officer Frank's comments, Reringer sold the paint eqiupment to Richard Wagner for $800. Evidence showed the value of the equipment to be $1843.70. Meanwhile, Narum had telephoned the Billings Police Department on November 6, 1979 to report the theft of his property. A written report was to have been filed by an employee while Narum was on vacation. The employee failed to do so. Therefore, Narum's wife filed a written report with the police on December 21, 1979, more than thirty but less than ninety days after Beringer reported the property to the police. The property officer searched the department's computer twice during the initial thirty day period for a written report concerning the theft of the paint equipment. Despite retaining the property an additional sixty days, no other search of the stolen property reports was ever made. Thus, the property officer was unaware that the equipment had been reported as stolen when he released it to Beringer. At trial, Assistant Police Chief Sampson testified that it is the duty of the investigating officer to follow-up on stolen property reports (tr. p. 50) and the duty of the property officer to check the computer for any reported thefts of property meeting the description of that in his possession (tr. p. 61). Neither officer fulfilled his responsibilities regarding this property. Upon learning that the paint equipment he had purchased from Beringer was equipment previously reported stolen by Narum, Richard Wagner contacted Beringer and a meeting between a representative of the police department, Beringer, Narum and Wagner followed. However, the participants were unable to reach a mutually satisfying solution and this action was commenced. The issues presented by Narum in this appeal of the District Court's decision are: 1. Whether the District Court erred in finding that the City of Rillings had been negligent, rather than grossly negligent, in its handling of Narum's property? 2. Whether the District Court erred in holding that the City of Billings and Barry Beringer were separately liable rather than jointly and severally liable to Larry Narum for the loss of his property. 3. Whether the District Court erred in failing to hold the finder (City of Billings) liable to Larry Narum for double the value of lost property, pursuant to section 70-5-209, MCA (1981) . The issues raised on cross appeal are: 1. Whether the District Court erred in entering judgment against defendant Reringer on the basis of unjust enrichment? 2. Whether the District Court erred in holding that the City of Billings is liable to Larry Narum, or to any other party? The District Court erred in finding the Billings Police Department to be the finder of the lost paint equipment, pursuant to sections 70-5-101, et seq., MCA (1981). It is difficult to ascertain the intent of the 1895 legislature when it promulgated that chapter. However, it is highly unlikely that the legislative intent was for the chapter to apply to municipal police departments. Rather, we interpret that chapter to apply to the private citizen who finds property and chooses to take charge of the property in order to find its rightful owner. Section 70-5-102, MCA (1981). Barry Beringer became the statutory finder of the paint equipment by discovering the property and exerting control over it. If control was not exercised in reporting to the police it was exercised when Beringer ultimately obtained the subject equipment and sold it. Although Beringer may well have acted in good faith he became obligated to follow the statutory procedures for locating the true owner of the property. Since Beringer failed to follow those procedures and chose instead to treat the property as his own by selling it to an innocent third party, he became liable to the true owner of the property for its value. In addition, section 70-5-209, MCA (1981), penalizes finders for failing to follow the statutorily mandated procedures by holding them liable to the true owner for double the value of the lost property. Therefore, since the value of the paint equipment was $1,843.70, Barry Beringer is liable to Larry Narum for $3,687.40. However, the evidence presented at trial supports the conclusions of the District Court that (1) "The City of Billings knew the true owner of the property as a result of information provided to the City by Narum on December 21st, 1979, and therefore had a duty to use reasonable diligence" to return the property to the owner; (2) the City of Billings negligently dealt with the property while it was in its possession, and "such negligence was the proximate cause of the damages sustained by Plaintiff Narum"; and (3) Beringer justifiably relied on representations made to him by the City of Billings indicating that the property was his. These conclusions support a finding for Beringer on his cross-claim against the City of Billings, which asserts that the City's negligence wa.s the primary cause of Narum's loss. Since the District Court held the City of Billings to be the "finder" and thus liable to Narum, Beringer's cross-claim was not considered. We therefore remand this case to the District Court for judgment in Narum's favor for $3,687.40 against Beringer and in Beringer's favor on his cross-claim against the City of Billings. In its judgment, the District Court shall find the City's liability to Beringer to be $2,887.40. That amount represents the total damages suffered by Beringer due to the Citv's negligence ($3,687.40), less the $800 which Beringer received when he sold the equipment. Remanded for entry of judgment in accordance with this opinion. We concur: IN THE SUPREME COURT OF THE STATE OF MONTANA No. 83-99 LARRY NARUM , Plaintiff, Appellant and Cross Respondent, VS. CITY OF BILLINGS, BARRY BERINGER and RICHARD WAGNER Defendants, Respondents, and Cross Appellants. CLERK OF SUPREME COURT O R D E R STATE OF MONTANA The Court has considered the petition for rehearing filed by Defendant, Barry Beringer, pursuant to Rule 34 M.R.App.Civ.P. and finds that the original opinion should be modified by striking from the concluding paragraph the following language: "We therefore remand this case to the District Court for judgment in Narum's favor for $3,687.40 a.gainst Beringer and in Beringer's favor on his cross-claim against the City of Billings. In its judgment, the District Court shall find the City's liability to Beringer to be $2,887.40. That amount represents the total damages suffered by Beringer due to the City' s negligence ($3,687.40) , less the $800 which Beringer received when he sold the equipment." We substitute therefore the following language: "We therefore remand this case to the District Court for a determination of damages in favor of Beringer on his cross-claim against the City of Billings. The District Court may consider any damages legally caused by the negligence of the City of Billings including attorneys fees and costs. " With this modification the petition for rehearing is denied. Justices

December 22, 1983

6aa1655b-bddb-4b1b-ab5d-514eab24eab8

STATE v JOHNSON

N/A

83-296

Montana

Montana Supreme Court

IN THE SUPREME COURT O F THE STATE OF MONTANA NO. 83-296 STATE OF MONTANA, P l a i n t i f f and A p p e l l a n t , v. GREGORY LYNN JOHNSON, Defendant and Respondent. O R D E R PER CURIAM: The o p i n i o n of t h i s Court d a t e d December 1 6 , 1983, S t a t e of Montana v. Gregory Lynn Johnson, is hereby modified t o d e l e t e t h e words " a t t r i a l " on page t h r e e ( 3 ) , l i n e f o u r t e e n ( 1 4 ) of t h e o r i g i n a l opinion. The Clerk is d i r e c t e d t o m a i l a t r u e copy of t h i s o r d e r t o c o u n s e l of r e c o r d f o r a l l p a r t i e s . DATED t h i s 2 1 s t day of December, J J u s t i c e s No. 83-296 I N THE SUPREME COURT O F THE STATE O F M O N T A N A 1983 STATE O F MONTANA, P l a i n t i f f and A p p e l l a n t , -vs- GREGORY L Y N N JOHNSON, Defendant and Respondent. APPEAL FROM: District C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f G a l l a t i n , The Honorable J o s e p h B. Gary, Judge p r e s i d i n g . COUNSEL O F RECORD: For A p p e l l a n t : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana A. Michael S a l v a g n i , County A t t o r n e y , Bozeman, Montana F o r Respondent : Goetz, Madden & Dunn, Bozeman, Montana "- Submitted on B r i e f s : September 2, 1983 Decided: December 1 6 , 1983 F i l e d : .ILL j. -: I Y U ~ 8 -- C l e r k Mr. J u s t i c e L.C. Gulbrandson d e l i v e r e d t h e Opinion of t h e Court. T h i s c a s e comes on a p p e a l from an o r d e r of t h e D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t i n Bozeman, Montana, g r a n t i n g p a r t of d e f e n d a n t ' s motion t o s u p p r e s s evidence. The a l l e g e d f a c t s i n t h i s c a s e i n d i c a t e t h e f o l l o w i n g . On t h e morning of August 23, 1982, t h e v i c t i m , a Bozeman r e a l t o r , r e c e i v e d a phone c a l l from an i n d i v i d u a l c l a i m i n g t o be a Frank B a r t l e t t . The c a l l e r r e q u e s t e d t h a t t h e v i c t i m show him a house t h a t was l i s t e d through her r e a l e s t a t e agency. Arrangements were made t o meet a t t h e house l a t e r t h a t morning. The v i c t i m a r r i v e d j u s t b e f o r e 1 1 : O O a.m. She e n t e r e d t h e house t o make s u r e e v e r y t h i n g was i n o r d e r b e f o r e t h e p r o s p e c t i v e buyer a r r i v e d . When s h e e n t e r e d t h e master bedroom, a man wearing a s k i mask and h o l d i n g a gun jumped o u t and grabbed h e r . She grabbed t h e b a r r e l of t h e gun and pushed it away from h e r . A s t r u g g l e ensued. The a s s a i l a n t overpowered t h e v i c t i m and threw h e r t o t h e f l o o r . H e threw t h e gun i n t o a nearby c l o s e t and l a i d down on t o p of h e r . The a s s a i l a n t p u l l e d o u t a h u n t i n g k n i f e and t r i e d t o remove a s t r i p of t a p e from its b l a d e t o cover t h e v i c t i m ' s eyes. She began t o s t r u g g l e a g a i n and grabbed a t t h e k n i f e , c u t t i n g her hand. The s t r u g g l i n g ceased and t h e a s s a i l a n t was a g a i n l y i n g on t o p of t h e v i c t i m . The a s s a i l a n t t h e n p l a c e d t a p e over t h e v i c t i m ' s mouth and taped h e r hands behind h e r back. H e then p u l l e d her over t o a c o r n e r of t h e room, p l a c e d h e r i n a s i t t i n g p o s i t i o n and reached i n s i d e h e r c l o t h i n g touching her breast. The assailant then left. The victim freed herself and reported the assault to the Gallatin County Sheriff. She gave the Sheriff's office a description of the assailant's voice and general appearance. On September 1, 1982, approximately one week after the assault, the Sheriff's office informed the victim that they had a suspect and wanted her to come in and listen to his voice. The victim went to the Sheriff's office and was asked to stand nea.r a door that was slightly opened. She listened for approximately five minutes as the suspect talked with Sheriff's officers. She could not see the suspect. When asked if she could identify the voice, she stated, - , "Yes, I believe I can identify that voice. That voice, if not the same voice I heard up at Story Hills on the 23rd, it was extremely similar. I would say it was the same voice." The victim stated she talked with the assailant for approximately thirty minutes when the assault occurred. The suspect was placed under arrest following the voice identification. On May 13, 1983, the District Court granted the defendant's motion to suppress the voice identification as evidence at trial. The District Court relied upon our decision in State v. Pendergrass (1978), 179 Mont. 106, 586 P.2d 691, in making its ruling. The State now appeals claiming the District Court erred in granting defendant's motion to suppress the voice identification. The reliability of procedures used in eyewitness identification was addressed by the United States Supreme Court in a group of cases known as the Wade trilogy. United States v. Wade (1967), 388 U.S. 218, 07 S.Ct. 1926, 10 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v . Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The Wade trilogy established a per se rule that excluded all evidence of an identification obtained through unnecessarily suggestive procedures when a fairer alternative was available. Thus, the court in Stovall said: "The practice of showing suspects singly to persons for the purposes of identification, and not as part of a lineup, has been widely condemned. [footnote omitted]. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding i t . . . Stovall, 388 U.S. 302. In Stovall, the court found an exigent circumstance exception to the per se rule when they approved an identification made after a one-on-one confrontation because the witness was in danger of death. Subsequent cases have not strictly applied the standards expressed in the Wade trilogy, but have adopted a more lenient totality of the circumstances approach. Under this approach, the admission of testimony concerning an unnecessarily suggestive identification procedure does not violate due process standards so long as the identification possesses sufficient aspects of reliability. Neil v. Biqgers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. In Biggers, the court identified certain criteria to be considered in determining whether the likelihood of misidentification exists: "We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Bigqers, 409 U.S. at 199. The Bigqers rationale was adopted by the Court in Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140. In Manson, the Court examined the two post-Biggers approaches taken by lower courts regarding evidence obtained through suggestive identification procedures: "The first, or per se approach . . . focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whether it has been obtained through unnecessarily suggested confrontation procedures. (footnote omitted) "The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admiss ion of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability." Manson, 432 U.S. at 110. The Manson Court rejected the e r se rule stating, " [tlhe per se rule . . . goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant." The Manson Court added that "reliability is the linchpin" in determining admissibility for both pre- and post-Stovall confrontations. The Manson Court concluded that the factors set out in Biggers are to be applied, "and against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson, 432 U.S. at 114. In State v. Pendergrass (1978), 179 Mont. 106, 586 P.2d 691, we applied the Biggers-Manson test to a voice identification procedure. In Pendergrass, the defendant was accused of committing a rape at a Helena grocery store. Thirty-two hours after the incident occurred, the victim of the assault was asked to come to the police station. She was told that a suspect in the crime was going to be questioned, and was given an opportunity to listen to the conversation. The defendant and an officer were on one side of a room divided, floor-to-ceiling, by filing cabinets with the victim stationed on the other side. The officer interrogated the suspect as to his activities on the night in question. The suspect was not asked to repeat any phrases the victim had said her assailant used. When the victim was asked her opinion of the defendant's voice, she replied either "I think that is the voice" or "I believe that is the voice." We concluded that the totality of the circumstances surrounding the voice identification gave rise to a very substantial likelihood of irreparable misidentification and due process required exclusion of the evidence. In reaching that conclusion, we used a step-by-step application of the Biggers-Manson criteria. By applying the five-step Biqgers-Manson test, as adopted in Pendergrass, to the facts of this case, we conclude that the District Court erred in its decision. Specifically, the five factors provide: (1) Opportunity of the witness to view the criminal at the time of the crime. Here, as in Pendergrass, the victim did not see the assailant's face. However, in Pendergrass the victim made conscious effort not to see her assailant while the victim, in the present case, gave a detailed description of his overall appearance. In particular, the victim viewed her assailant for approximately twenty minutes before her eyes were taped and described him as male, approximately 5 ' 6 " in height, wearing brown scratched shoes, blue jeans, blue hooded sweatshirt, dark curly hair, hazel eyes with long eyelashes, strong garlic smell on his breath, a heavy smell of aftershave and a soft, hesitating voice. These facts indicate the first step of the Pendergrass test was satisfied. (2) The witness' degree of attention. Clearly the victim was paying close attention to the assailant to describe him as she did. Indeed, the assailant laid on top of the victim for approximately thirty minutes after they had scuffled over the gun and knife. In addition, at the suppression hearing, the victim testified she was paying close attention to the voice. Thus, the second step of the Pendergrass test was satisfied. (3) The accuracy of the prior description. The previous discussion indicates the witness gave a detailed description of her assailant. The description was much more full and complete than the description given by the victim in Pendergrass and the District Court properly determined that the third step was satisfied. (4) The witness1 level of certainty at the confrontation. As previously noted, when the victim in this case was asked if she could identify the voice of the defendant at the initial confrontation she stated: "Yes, I believe I can identify that voice. That voice, if not the same voice I heard up at Story Hills on the 23rd, it was extremely similar. I would say it was the same voice." (emphasis added) At the suppression hearing, the victim gave the following testimony on direct examination: "Q. And could you identify this voice? "A. At the time I thought it was identical to the voice I heard in the house. "Q. And this was approximately one week a£ ter? "A. One week after. "Q. You've testified that you conversed with the assailant for approximately a half hour, is that correct? "A. Yes, I talked constantly the whole time, and he talked back to me. He never told me to shut up. "Q. And how close to this individual were you during these conversation? "A. If it wasn't face to face, he was, it was always a very close proximity. "Q. And during these conversations, were you paying attention to this voice? "A. Yes "Q. Were there any distractions? "A. No, well just the gun and the knife. "Q. But other than that-- "A. No, no distraction. It was absolutely silent except for the two people talking, the two of us." Upon cross examination the victim stated: "Q. Well, you are completely sure that that was the voice you heard. "A. At that time I was." The victim also said the following on cross examination: "Q. And you were not at that time, that is during the assault, focusing on a voice. You were concerned about protecting yourself and your welfare and getting rid of the person. "A. That's true, but it got to the point where when he was laying on top of me for it seemed like an eternity, we talked during that time, and his voice was like right here and we-- I at that point, I think I'm an astute observer. I listened and we conversed; and at that point there were less distractions other than the entire incident. "Q. But you were not focusing at that time or any other time on his voice specifically? "A. I was focusing on getting out of there alive. " The District Court held that the victim made the type of equivocal voice identification that we held was inadmissible on due process grounds in Pendergrass. In Pendergrass, we said: "Rather than making an unequivocal statement at the time she made the identification, the response of the witness here was a qualified 'I think that's the voice' or 'That sounds like the voice.'" Pendergrass, 179 Mont. at 117. However, the statement of the victim in Pendergrass was more equivocal than the statement of the victim in this case. Rather than say "I think" or "I believe that's the voice," here the victim said she could identify the voice and added "I would say it was the same voice." This was an unequivocal voice identification that should not have been suppressed by the District Court. Moreover, the fact that the assailant was lying on top of the victim for approximately twenty minutes as he was speaking, makes the victim's voice identification even more reliable than the identification in Pendergrass. Thus, the fourth step of the Biggers-Manson test was satisfied and the voice identification should not have been suppressed because of the victim's uncertainty. (5) The time between the crime and the confrontation. In Penderqrass, thirty two hours elapsed between the crime and the confrontation. In the present case, approximately one week elapsed between the assault and the confrontation. We agree with the District Court that seven days between the assault and the confrontration should not render the identification inadmissible. Indeed, in State v. Dahl (Mont. 1980), 620 P.2d 361, 37 St.Rep 1852, we held that an eight-day delay between the time of the crime and the confrontation was permissible. In short, the application of the - Biggers-Manson criteria as adopted in Pendergrass, to the facts of this case, indicate sufficient indicia of reliability to allow the voice identification into evidence. However, our decision does not stand for the proposition that the identification procedure used by the police in this case was ideal. Clearly a "voice line-up," in which the victim must make an identification after listening to several voices, is the most reliable procedure. Nevertheless, our analysis of the totality of the circumstances in this case convince us that the victim's voice identification was sufficient, and the District Court erred in its ruling. We therefore reverse and remand in accordance with our decision. We concur: Mr. Justice Daniel J. Shea, dissenting: I dissent. The one-person voice line-up was unduly suggestive and I would hold the voice identification to be inadmissible.

December 16, 1983

c1d0a315-c3db-4d80-8b45-a0e794206cfa

Johnson v. Whitcomb

422 P.2d 642

11062

Montana

Montana Supreme Court

422 P.2d 642 (1967) Eldon C. JOHNSON, Plaintiff and Respondent, v. Stuart WHITCOMB, et al., Defendants and Appellants. No. 11062. Supreme Court of Montana. Submitted September 8, 1966. Decided January 19, 1967. Smith &amp; Emmons, Great Falls, Marvin J. Smith and Robert J. Emmons (argued), Great Falls, for appellants. Hoyt &amp; Bottomly, Great Falls, Richard V. Bottomly (argued), Great Falls, for respondent. L.C. GULBRANDSON, District Judge, sitting in place of DOYLE, Justice. This is an appeal from an order of the district court of Cascade County granting a new trial. The plaintiff's motion for a new trial came after the trial judge had entered judgment on a jury verdict for defendants. The plaintiff-respondent is Eldon C. Johnson and will be referred to as the plaintiff. The defendants-appellants are Bernice Kingsbury, plaintiff's sister, and Stuart Whitcomb, plaintiff's nephew and Mrs. Kingsbury's son, and will be referred to as the defendants. The issue to be decided by this appeal is whether the trial judge abused his discretion in granting the motion for a new trial. *643 The record before this court reveals the following facts. The defendants operated and maintained a farm and ranch in Pondera County, Montana. A large dwelling house is located on the properties owned and operated by the defendants. The plaintiff was employed by the defendants as a handyman and on July 11, 1963, while engaged in the repair of fire damage to the attic and roof of defendants' dwelling house he was injured. Entrance to the attic of defendants' dwelling house is gained by means of a unique stairway-ladder arrangement. Plaintiff had climbed into the attic by means of the stairway-ladder to survey and to repair the damage. Plaintiff, after making some measurements, started to back down the stairway-ladder when he fell. Just exactly how he fell was a matter that was in dispute at the trial. As result of the fall the plaintiff suffered various injuries which required medical treatment and hospitalization. On August 7, 1963, while plaintiff was in the hospital recovering from his injuries, he was interviewed by an insurance investigator employed by the defendants' liability insurance carrier. This interview between the investigator and plaintiff was recorded on a portable dictating machine. Prior to the time of trial, a written copy of the interview was given to plaintiff's attorneys. However, after trial, the plaintiff's attorneys complained the copy they had been furnished contained twenty-seven errors in transcription. In cross examining the plaintiff, defendants' attorneys made use of the written copy of the interview for impeachment purposes. Later, during defendants' case in chief, the defendants' attorneys sought the trial judge's permission to play the recording of the interview for the jury's consideration. The jury was excused while attorneys for plaintiff and defendant made argument to the court concerning the playing of the interview to the jury. Plaintiff's attorneys strongly urged the court to listen to the interview first, but the judge rejected this idea since he was under the impression that the interview could be played only one or two more times before the recording would deteriorate to such a condition that it would no longer be audible. Finally, over plaintiff's attorneys' objections, the trial judge decided to play the interview to the jury without first hearing it. The interview was played to the jury but the court reporter did not take any notes on it because he was unable to understand it as played before the jury. The trial judge also had considerable difficulty in understanding the interview, and declared that ninety per cent of the tape as played was inaudible even though he had been furnished with a copy of the transcription. During the noon recess, a sound technician was employed to amplify and clarify the recording. With the jury absent, the interview was played for the district judge. The judge found that the written copy of the interview contained many errors but that the amplified interview was quite clear. Therefore, he decided to play the interview to the jury a second time. Again plaintiff's attorney objected and added the objection that a second playing placed undue emphasis upon the testimony, but the judge overruled these objections and allowed the interview to be played to the jury a second time. During the second playing of the interview to the jury the court reporter again did not make a record of the interview. On September 25, 1965, some seven months after trial, the court reporter transcribed the interview at the request of the defendants' attorneys without notice to plaintiff's counsel. Thus, it now appears as part of the record before this court. The interview, as it was reproduced by the court reporter on September 25, 1965, contains statements by the plaintiff on fact issues that were in dispute in this lawsuit, for instance, the plaintiff's familiarity with the stairway-ladder construction features; the safeness of the stairway-ladder; the number of times plaintiff had used the *644 stairway-ladder; and the plaintiff's opinion as to the cause of the accident. The majority of the argument surrounding the motion for a new trial dealt with the manner in which the interview was presented to the jury and the fact that it had been played twice. The district court's order granting the new trial gave several reasons, among which was the reason "that there was an irregularity in the proceedings that prevented the plaintiff from having a fair trial." In State Highway Commission v. Greenfield, 145 Mont. 164, 399 P.2d 989, this court reviewed previous decisions dealing with appeals from orders granting new trials. This review of the cases clearly established that granting a new trial is within the sound discretion of the district judge and that generally it will not be reversed if there is no showing that discretion has been abused. The record before this court supports the idea that the manner in which the recorded interview was presented to the jury was at least unusual. In State v. Driver, 38 N.J. 255, 183 A.2d 655, 672, the court stated: "In all situations, however, the trial judge should listen to the recording out of the presence of the jury before allowing it to be used. In this way he can decide whether it is sufficiently audible, intelligible, not obviously fragmented and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted." Here the recorded interview was first played to the jury with the trial judge later declaring that about ninety per cent of the interview was unintelligible while defendants' counsel contended that only ten per cent was unintelligible. Then, after electronic equipment was available, the interview was again played in its entirety to the jury over objections of plaintiff's counsel. It was well within the discretion of the trial judge to rule that the use of the recorded interview in that manner created an irregularity in the proceedings which prevented the plaintiff from having a fair trial. This is true even more so when we consider that use of the interview for impeachment purposes appeared to be a major portion of the defense case. Our holding that the trial judge did not abuse his discretion in ordering a new trial renders a consideration of the other specifications of error moot. The order appealed from is affirmed. JAMES T. HARRISON and C.J., and ADAIR, JOHN CONWAY HARRISON and CASTLES, JJ., concur.

January 19, 1967

aa0aa321-3ccc-4ea9-acd8-3bb6fef38526

Bodine v. Bodine

422 P.2d 650

11096

Montana

Montana Supreme Court

422 P.2d 650 (1967) Anne G. BODINE, Plaintiff and Respondent, v. Richard A. BODINE and Helen Jane Bodine, husband and wife, Defendants and Appellants. No. 11096. Supreme Court of Montana. Submitted October 5, 1966. Decided January 19, 1967. J.H. Morrow, Jr. argued, Edmund P. Sedivy argued, Bozeman, for appellants. Ben E. Berg, Jr. argued, Bozeman, for respondent. *651 JOHN C. HARRISON, Justice. This is an appeal from the findings of fact, conclusions of law and judgment of the district court of the Sixth Judicial District of the State of Montana, in and for the County of Park, the Honorable W.W. Lessley having been called in to preside. The plaintiff-respondent was the mother of the defendant-appellant Richard Bodine, and mother-in-law of defendant Helen Jane Bodine. Plaintiff brought this action against defendant on two counts. The first count prayed that defendants be declared to hold approximately 2,200 acres of land located in Park County in trust for the plaintiff during her lifetime and that the defendants be required to account for and pay over to the plaintiff the rentals and profits received by defendants from said property for the year 1963, and to reconvey said lands to the plaintiff. The second count prayed that defendant Richard Bodine be ordered to deliver to plaintiff, as owner, certificates of stock of the Investors Mutual, Inc., representing some 318 shares. The trial court entered judgment for plaintiff on both counts. It is important in this decision that we carefully set forth a rather detailed fact situation. Anne G. Bodine, plaintiff, was over 80 years of age at the time this matter was heard by the district court, and appeared in district court by way of a deposition. At the time of appeal she had died as had Richard A. Bodine. Anne G. Bodine was the widow of Alban Bodine a prominent and successful businessman of Livingston, Montana, who died July 10, 1951, leaving surviving Anne G. Bodine, his widow, and four children, Howard Bodine, Richard A. Bodine, Marjorie Bodine O'Connor and Dorothy Bodine Janseen. The defendant Richard was seriously crippled by polio at the age of 7, but in spite of severe physical handicap he attended the University of Montana from which he earned an LL.B. In June of 1941 he entered into the practice of law in Livingston, Montana, and continued in the practice of law until his death in March 1966. In addition to providing the defendant with a fine education it should be noted that his brother and two sisters received college educations in the colleges of their choice. The defendant Richard was the only one receiving a legal education. While not stated in so many words the facts show that the Alban Bodine family, quite naturally, early in the defendant's life made provisions to insure his well being not only in the education given him but in the estate planning as evidenced by the holographic will of Alban Bodine which directed that the Potter Basin property (the lands here at issue) be devised to Anne G. Bodine to use during her lifetime, with the right to dispose of any part thereof during her lifetime, the remainder to go at her death to Richard. In a will made for Anne G. Bodine on October 15, 1952, just a little over a year after her husband's death, along with bequests to her children, she gave, devised and bequeathed unto Richard A. Bodine, all her real property commonly known and called Potter Basin, in Park County, Montana, and further stated that if he died prior to his mother, the lands in question would go to his wife Helen Jane Bodine (the other appellant in this case) and their children in equal shares. The defendants, Richard and Helen, have two minor sons. Both the testimony produced at the trial and the exhibits reveal that both Alban and Anne Bodine were generous parents. Not only did they give each child the best education possible but throughout both of their lives they provided for the needs of their children. The uncontradicted testimony of defendant showed that prior to his father's death a sum over $10,000 was given to Marjorie Bodine O'Connor to help her and her husband purchase a Chevrolet Agency in Nebraska. The exhibits show that after Alban's death the plaintiff gave checks to her son-in-law *652 E.D. O'Connor on the following dates and in the following amounts: Concerning gifts by the parents to Howard, who is now substituted as a party plaintiff after his mother's death, the uncontradicted testimony shows that after Howard's graduation from college he went into the cattle business with his father and that the ranch where they raised Hereford cattle was put in Howard's name. This ranch was later sold for some $65,000 and was not a part of Alban's estate due to it being in Howard's name. There was a $25,000 mortgage mentioned in Alban's will which was part of the estate, but due to Howard's desire to borrow money against the ranch the family agreed to release the mortgage with the understanding that Howard would pay his mother the sum of $1,000 per year so long as she lived. This was done either in the year 1955 or 1956, and according to the testimony given by Richard no $1,000 payments were ever made by Howard. In addition, the testimony and exhibits show that Howard received from his mother the following: These business dealings and gifts within the family must be considered in light of the testimony concerning plaintiff's actions with regard to her children after Alban's death. As heretofore set forth it is obvious that she was a most generous mother, and not only were Howard and Marjorie given help, but the evidence clearly shows that Richard too benefited. The gifts and arrangements made for him are only different because of his legal relationship to his father's estate and as an adviser to his mother. His mother paid $16,000 on a mortgage Richard had on his home at the time she sold her home in Livingston in the Fall of 1961. The plaintiff, after the death of her husband Alban, continued to live in Livingston for some 10 years during which time she traveled rather extensively and from the testimony lived well. The estate of her husband was valued over $100,000 and though never fully probated it seemed to provide the necessary income for her to live comfortably. Both sons, Richard and Howard, served as executors for their father's estate and helped their mother in business matters. As previously set forth, plaintiff sold her home in Livingston in 1961 and moved to Bozeman where her son Howard lived. Whether or not there had been family difficulties prior to that time is questionable, but shortly after her move to Bozeman difficulties arose between the plaintiff mother and her son Richard concerning the 2,200 acres of land previously mentioned, and two stock certificates. On July 13, 1958, plaintiff executed and delivered to her son Richard and his wife a warranty deed, made out as husband and wife as joint tenants with right of survivorship. In this deed the mother conveyed all of her interest in the 2,200 acres known as the Potter Basin Lands. The deed was prepared by her son Richard at the mother's request though she stated in a deposition she didn't remember signing the deed. The deed was a specially prepared deed, not a form deed, and was acknowledged by a disinterested third party. Defendant testified that the deed was drawn at his mother's request just prior to a trip she was making to Nebraska and that he was hesitant to draw it. He testified "finally several days before she was taking a trip to Nebraska she called me and said now I want that deed prepared and I want you to bring it down so that I can sign it and deliver it to you. We'll have it recorded right away, and I want that done before I go *653 to Nebraska. That was the 31st day of July. And she told me that she wanted me to she wanted Jane and me to have this property, both of us, not just one of us. She was very specific. I would like to point out that this was not a form deed that she could have signed in blank." At the time the deed was signed by plaintiff the Potter Basin land was leased to a Robert Shiplet for $1,500 per year, said lease being for a period of five years commencing January 1, 1957. Under the terms of the lease, payments were to be made to plaintiff. These rentals were paid for the five years by Shiplet though there was some question of who received all or part of the 1961 rental. In the Fall of 1961, just prior to the termination of the five-year lease to Shiplet the defendant entered into a new lease for a period of three years for the Potter Basin land. This lease was in defendant and his wife's name as the lessors, however, Mr. Shiplet, as had been his custom, made payment to Anne G. Bodine and such check was deposited to plaintiff's account by defendant, signed "her attorney in fact." He testified that this was done because of certain bills that were outstanding particularly brought on by the fact that his mother had entered a Rest Home on Labor Day 1961. Defendant testified that after the transfer of the land to him in 1958, he estimated that he and his wife had paid one-half the taxes and his mother the other half up through the lease ending in December 1961. In addition to the deed prepared by defendant, he had a general power of attorney in his name to facilitate handling his mother's business. This was made out on November 13, 1961, several months after his mother went to the Rest Home in Bozeman, and it was used by him in handling her affairs until November 25, 1963, when it was revoked by plaintiff. Shortly thereafter, she gave her son Howard the power of attorney. In the meantime, in December 1962, the defendant Richard Bodine became very ill. On December 31, 1962, he executed a conveyance of all his property "of every kind and nature whatsoever, and wheresoever situated or located" to his wife, Helen Jane Bodine. This was filed for record November 22, 1963. On the previous day November 21, 1963, defendant, Richard Bodine, executed a quitclaim deed to Helen Jane Bodine of certain real property, including the Potter Basin Land, and to Lots 17, 18 and 19, in Block 88 of Park Addition to the City of Livingston, (the home). The facts concerning count two revolve around two stock certificates of the Mutual Investors Fund. On January 21, 1953, plaintiff purchased certificate No. 297073 for $1,000, and certificate No. 354419 was purchased by her on January 21, 1954 for $4,000. Both certificates read: "Anne G. Bodine as trustee for Richard A. Bodine." The testimony on how defendant came into possession of these two certificates is conflicting, but there is no testimony imputing a fraudulent taking by defendant. Both sides agree that up until the time when plaintiff sold her house, in the summer of 1961, just before she went to Bozeman to the Rest Home, that the stock certificates were in a strong box containing other family papers. At that time all four children, at plaintiff's request, closed out the family home and each took personal family things that they wanted. The defendant's account is that the certificates were taken out of the box by plaintiff and given to him and that he had had possession since that date. He testified that the dividend checks on those certificates were issued to plaintiff, that his brother Howard made a demand on him under his power of attorney for delivery of the certificates on January 20, 1964, but that he refused to deliver. His mother, at the time of the taking of the deposition, admitting that she was mentally a bit hazy because of her age, made conflicting statements about how her son came into possession of the certificates. Early in the taking of the deposition *654 and before she became tired and confused she stated on cross-examination: "Q. Do you remember giving those certificates to your son Richard? A. Yes. "Q. And when you use the word `Bud' you mean Richard? A. I mean Richard. "Q. Do you remember about when you gave those certificates to him? A. Well they were in his father's strong box and he got it, he took the strong box. "Q. Did you deliver or give them to him? A. I gave them to him. I consented to his taking them." Several pages later still under cross-examination: "Q. Did you tell Bud he could have the certificates, the Investors Certificates? A. No, I did not. "Q. You did not, you say? A. No, I did not say he could have them." Much later in the deposition and just after plaintiff indicated a desire to terminate the conversations with both lawyers she was again asked: "Q. Didn't you tell Bud that those Mutual Fund certificates were to be his property? A. I don't remember that I did. "Q. You could have said that? A. I could have." While defendant sets forth numerous specifications of error to the findings of fact and conclusions of law of the district judge, we feel that they can be combined and considered in two main discussions. 1. Was there an actual transfer by deed of the Potter Basin lands from plaintiff-mother in 1958 to defendant-son Richard effective at the end of the then existing five-year lease, or did defendant Richard hold these lands and all rentals as a trustee? 2. Was there a legal delivery, with the accompanying intent, and acceptance by the donee which would constitute a gift inter vivos under our law? We cannot agree with the findings of fact and conclusions of law of the presiding judge as to the 2,200 acres of land located in Potter's Basin. Clearly the exhibits and oral testimony produced by both parties can leave but one inference concerning the period during which this deed was made. The plaintiff was in the process of putting her affairs in order. She and her late husband had given rather generously to the four children. She was a widow approaching her 76th or 77th year and was possessed of an estimated estate of at least $100,000. It is reasonable to assume from all the evidence that she had either discussed with advisers or at least considered paring down the estate for within a little over a year after the deeding of the property in question, she had her children close out the family home and take those things they desired. During the same period she either loaned or gave substantial sums to some of the children. From her own testimony, given through her deposition, she never evidenced a great interest in her fiscal affairs other than that there be money available to care for her needs for the remainder of her life. She estimated those needs to be in the neighborhood of $200 per month and at that time had some $50,000 assets to care for same. While the plaintiff's thrust of argument goes to sustaining the action of the district court on the following points we must for reasons stated disagree. 1. Citing McQuay v. McQuay, 81 Mont. 311, 263 P. 683, counsel contends that if the evidence satisfied the lower court that we must follow the lower court's findings unless there is a decided preponderance of the evidence against them. Viewing the evidence set forth we find that it does preponderate against the court's findings. 2. Counsel next stresses the constructive trust theory based on the confidential relationship between the parties. In weighing this argument three statutes must be considered: Section 13-307, R.C.M. 1947, provides: "Fraud, actual or constructive. Fraud is either actual or constructive." *655 Section 13-309, R.C.M. 1947, provides: "Constructive fraud. Constructive fraud consists: "1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; or, "2. In any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud." Section 86-210, R.C.M. 1947, provides: "Involuntary trust resulting from fraud, etc. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other or better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it." It must be noted that if we are to sustain the district court in imposing a constructive trust on the Potter Basin lands then fraud must be found. This the trial court failed to do and it should be noted that neither the pleadings nor proof showed a finding of "accident," "mistake," "undue influence," violation of a trust, or wrongful act, as to come within the provisions of section 86-210, R.C.M. 1947. This court in a recent decision, McReynolds v. McReynolds, 147 Mont. 476, 482, 414 P.2d 531, in a case involving transfers of property within a family said: "Just as the written statements of the defendants were not admissible to vary the terms of the deeds, neither are their oral statements. Where there was nothing ambiguous or uncertain in the terms of a deed it speaks for itself, and parol evidence tending to show a prior or contemporaneous oral agreement or tacit understanding with respect to the terms of the conveyance is inadmissible." The deed here must be construed as it is written. We can neither put words into the deed which are not there, nor can we put a construction on words directly contrary to their obvious meaning. 23 Am.Jur.2d Deeds, § 161, pp. 209-210. Under the law of this state and the facts presented here, we must hold the district court in its order improperly imposed a constructive trust on the Potter Basin lands, and order the return of this property to defendants. Nor do we find merit to plaintiff's contention that the trial court could rely on the conclusive presumption established by subdivision (3) of section 93-1301-6, R.C.M. 1947, to resolve the conflict in the testimony of the parties. Such section of the Code provides: "Specification of conclusive presumptions. The following presumptions, and no others, are deemed conclusive. * * * "3. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it." We find nothing in the court's findings of fact or conclusions of law to warrant such a finding by the district court. 4. Last but not least the plaintiff contends the trial court properly rescinded the sale of the property under its equitable powers approved by this court in the cases of De Atley v. Streit, 81 Mont. 382, 263 P. 967, and Erdmann v. Erdmann, 127 Mont. 252, 261 P.2d 367. In the De Atley case the court held: "Courts of equity have a marked tendency, owing to the usual hardship of these cases, to afford the grantor relief, particularly where he is of advanced years and without other means * * *." We do not disagree with the holding in the De Atley case, nor the holding in the later Erdmann case, rather, as previously shown we find factwise that the cases are not similar. Therefore, the equitable holdings are not applicable. Concerning the stock certificates, whether or not sufficient evidence was presented to find a legal delivery with intent *656 by the donee to constitute a gift inter vivos, we must sustain the rulings of the trial court. The evidence discloses that from July 1961, when defendant came into possession, until trial, that the certificates were never endorsed nor is there evidence of an assignment over to defendant. In considering our statutes on "gifts" and the "Uniform Stock Transfer Act," section 67-1706, R.C.M. 1947, provides: "A gift is a transfer of personal property, made voluntarily, and without consideration." Section 15-628, R.C.M. 1947, provides how title to certificates and shares may be transferred in the following manner: "Title to a certificate and to the shares represented thereby can be transferred only, "(a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or "(b) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either blank or to a specified person, or "(c) By delivery of the certificate with an assignment endorsed thereon or in a separate instrument signed by the trustee in bankruptcy, receiver, guardian, executor, administrator or other person duly authorized by law to transfer the certificate on behalf of the person appearing by the certificate to be the owner of the shares represented thereby." This court under similar fact situations has held that the burden of establishing the gift rested with the donee. Currie v. Langston, 92 Mont. 570, 16 P.2d 708; In re Brown's Estate, 122 Mont. 451, 206 P.2d 816; Lyons v. Freshman, 124 Mont. 485, 226 P.2d 775, 23 A.L.R.2d 1165. Recently this court in Marans v. Newland, 141 Mont. 32, 374 P.2d 721, carefully considered a fact situation concerning stock gifts, citing the above cases as part of its authority, however the quantum of proof in the Maran's case is lacking here. For here, in addition to the stock certificates in the strong box, were other family business papers that defendant makes no claim to. Here the stock certificates remain in the name of Anne G. Bodine as Trustee for Richard A. Bodine, the certificates allegedly are or were still in the family strong box. There has been no endorsement or assignment nor did the defendant explain why he had made no effort to get same transferred into his name. The cause is returned to the district court to be modified to comply with this opinion. JAMES T. HARRISON C.J., and ADAIR and DOYLE, JJ., concur. CASTLES, Justice (specially concurring: I concur in the majority opinion with respect to the Potter Basin real estate. It is well established that in an equity case this court can review all questions of law and fact. Hart v. Barron, 122 Mont. 350, 204 P.2d 797; Barrett v. Zenisek, 132 Mont. 229, 315 P.2d 1001. We are therefore not absolutely bound to accept the findings of fact of the district court. This is particularly true when the type of evidence in question can be as readily evaluated by this court as it can by the court below. I feel that the deposition of Anne Bodine is of little or no probative value. It reveals a total lack of ability to remember those events which are here in controversy. Through persistent examination, Anne Bodine would admit that almost any state of facts did or could have existed. For this reason I feel that this deposition cannot be relied upon as a source of evidence. *657 The majority says, "Viewing the evidence set forth we find that it does preponderate against the court's findings." Rather than balance the evidence presented in this fashion, I believe that there is simply a lack of evidence supporting the finding of the district court as to the real property, particularly in view of the rule announced in Barrett v. Zenisek, supra, that proof of a resulting or constructive trust must be clear, satisfactory and practically free from doubt. The fact that Richard Bodine continued to give his mother rental payments after she deeded over the land has little significance of itself. Surely this is no indication that Richard Bodine promised to "support" his mother in consideration of receiving the property. The conclusion of the majority also appears to rest on the fact that the district court made no formal finding of fraud or violation of a trust, and therefore failed to support a constructive trust under section 86-210, R.C.M. 1947. I believe that a finding of fraud or violation of trust is implicit in the ruling below. We have said that where no findings of fact were either made or requested, every finding necessary to support the judgment of the lower court would be implied. Farmers Union Trading Co. of Sheridan v. Wiggins, 127 Mont. 481, 267 P.2d 117. For this reason I think the rationale of the majority is not well-founded. The clear and uncontradicted intent of Alban and Anne Bodine was to give the Potter Basin property to Richard Bodine. Because there is a complete lack of evidence to the contrary, the ruling of the district court should be reversed, and I concur. I must also agree, though with some reluctance, that there is insufficient evidence to show a valid gift of the stock certificates. It is the necessary element of delivery which is not clearly established by the record. Both of the certificates were held by Anne Bodine as trustee for Richard Bodine. However, by the terms of the trust instrument, Anne Bodine retained complete control over disposition of the stock. She could sell or otherwise dispose of the shares, whereupon the trust would automatically terminate. She also was entitled to receive dividends on the stock. The trust arrangement was primarily a testamentary device because the beneficiary, Richard Bodine, would receive a real interest in the stock only if he survived Anne Bodine. The case of Marans v. Newland, 141 Mont. 32, 374 P.2d 721, cited by the majority, is distinguishable from the case at hand. In the Marans case two types of share certificates were involved. One group was issued in the name of Marans and his children as joint tenants, while others were issued in the name of the children only as tenants in common or sole owners. All of these stocks were left in a safe deposit box held in joint tenancy by Marans and the children. When Marans died, the ownership of the shares was placed in issue. We held that Marans estate had no interest in any of the shares. The stock issued to the children as tenants in common and individually constituted a valid gift when they were purchased. Ownership of stock issued in joint tenancy to Marans and his children passed entirely to the surviving joint tenants on the death of Marans. If the share certificates purchased by Anne Bodine were held in joint tenancy by her and Richard, we could easily follow the holding of the Marans case and find a completed gift when the stocks were purchased. However, the fact that Richard was only named as beneficiary of a revocable trust does not permit us to follow the Marans' holding. He had no present interest in the stocks and there was no delivery to him when the stocks were purchased. The fact that Anne Bodine had not endorsed the certificates as required under section 15-628, R.C.M. 1947, is significant because it is further evidence that no delivery occurred. I do not believe that such endorsement is absolutely necessary to a valid gift of stock certificates. There is a great deal of authority holding that the Uniform Stock Transfer Act (embodied by section 15-628) was enacted for the benefit and protection of corporations, and does not affect *658 the right of individuals to make gifts of stock certificates among themselves. Collins v. Alexander, 37 Tenn. App. 129, 260 S.W.2d 414; In re Maijgren's Estate, 193 Misc. 814, 84 N.Y.S.2d 664; In re Estates of Antkowski, 286 Ill. App. 184, 3 N.E.2d 132; Hausfelder v. Security-First National Bank, 77 Cal. App. 2d 478, 176 P.2d 84. So while endorsement might not be necessary to a valid gift, the lack of endorsement by Anne Bodine is further indication that there was no delivery. Although Anne Bodine consented to Richard taking possession of the certificates, along with other documents, I do not think it would be wise to hold that mere possession establishes a valid delivery, or indicates an intent to make a gift. Even though Anne Bodine intended Richard to acquire the stocks upon her death, the evidence is inadequate to show a valid inter vivos gift, and for the reasons set out above I would affirm that part of the judgment of the district court.

January 19, 1967

8a0649a2-15ae-4272-b067-b28a87a053d1

State v. Chappel

423 P.2d 47

11193

Montana

Montana Supreme Court

423 P.2d 47 (1967) The STATE of Montana, Plaintiff and Respondent, v. Cecil CHAPPEL, Defendant and Appellant. No. 11193. Supreme Court of Montana. Submitted January 9, 1967. Decided January 31, 1967. James A. Reno (argued), Billings, for appellant. Forrest H. Anderson, Atty. Gen., Charles M. Joslyn, Asst. Atty. Gen (argued), Helena, John L. Adams, Jr., County Atty. (argued), Billings, for respondent. DOYLE, Justice. This is an appeal from a jury verdict of "guilty" wherein the defendant was charged with first degree assault in the district court of Yellowstone County, before the Honorable Guy C. Derry, presiding judge. The defendant was sentenced to twenty years at hard labor on May 13, 1966. After a denial of a motion for a new trial this appeal followed. The shooting victim, Mrs. Green, went to the Stone Front Bar in Billings, Montana, between 8:00 p.m. and 9:00 p.m. on *48 Christmas eve, December 24, 1965, without a male escort. On her arrival she extended seasons greetings to the owners and bartender of the establishment. Approximately one hour later, the defendant appeared. From the record herein, we gather that the relationship between Mrs. Green and the defendant had been earlier in the year somewhat closer than platonic, but on this holiday night Mrs. Green had developed a pronounced antipathy for the defendant and told him this fact in words of one syllable. Overtures of peace apparently were made by the defendant to Mrs. Green from time to time during the evening, but they did not soften or abate the rancor Mrs. Green possessed for the defendant despite the spirit of yuletide. Shortly after midnight on December 25, the victim and defendant had a further altercation and Mrs. Green attempted to call the police when the defendant displayed a concealed nine shot, .22 caliber revolver and told her he would kill her. The victim either struck or attempted to strike the defendant with the telephone receiver. The defendant fired a single shot from his revolver which struck the victim above the left breast. A witness, Sharon Barton, for the prosecution, but a friend of the defendant testified she heard an argument between Mrs. Green and the defendant, but did not hear the subject matter of the controversy. She further testified she saw the defendant shoot Mrs. Green with the revolver which was admitted into evidence. The defendant was disarmed and left the premises. He went to his room, packed his clothes in his car and on observing a police prowl car went out the rear window of his rooming house to the home of a friend where the police apprehended him at about 4:10 a.m. Commencing about 4:30 a.m., the defendant after being carefully and fully advised of his constitutional rights, gave the Billings police a confession. The evidence is clear that the defendant was told he did not have to talk, that he was entitled to an attorney; that there was a free telephone on the desk in front of him to use. The confession discloses that the defendant made a change in the context of the document and initialled the change. While the defendant had been drinking, he was not intoxicated to a degree to make him unaware of his crime and what was transpiring around him. Evidence was adduced from the police officers out of the presence of the jury and they were cross-examined by defense counsel and by the trial court to accurately and factually determine that the contents of the confession was a product of his own free will, and that he was not overborne by pressure or threats of the officers. The defendant on appeal cites two specifications of error: (1) That the court erred in admitting into evidence over defendant's objection, the confession taken by the police department; and (2) That the evidence adduced in the trial will not support a conviction of guilty of first degree assault. Addressing the first specification of error, appellant's brief contends that the defendant was intoxicated at the time of the confession which made the confession involuntary and inadmissible. However, in oral argument, defendant's counsel raised the further question of admissibility by citing Miranda v. State or Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 694. The legal principles enunciated in Miranda, supra, are not applicable here as Miranda not only lacks absolute retrospectivity but applies only to cases where trial commenced on or after June 13, 1966. This cause was commenced on May 9, and ended on May 10, 1966. See In re Petition of Jones, 148 Mont. ___, 416 P.2d 540. The record here discloses a drinking defendant, but not intoxicated. Section 94-119, subd. (1), R.C.M. 1947, provides: "1. No act committed by a person while in a state of voluntary intoxication is less *49 criminal by his being in said condition. But, whenever the actual existence of any particular purpose, motive, or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." In State v. Rossell, 113 Mont. 457, 466, 127 P.2d 379, 383, this Court stated that the rule in this state is that the "question whether an alleged confession of one charged with crime made while in custody was voluntarily made depends largely upon the particular facts in each case, its admissibility in evidence is a matter for the trial court's determination in the first instance and its finding thereon will not be disturbed on appeal unless clearly against the weight of the evidence. [State v. Dixson, 80 Mont. 181, 260 P. 138.]" Defendant argues in the second specification of error that when he was struck on the head by the telephone receiver wielded by Mrs. Green that he was so stunned as to be incapable of having the intent necessary for a conviction of first degree assault. We observe that despite the defendant's contention of being not only intoxicated but stunned, he was able to recite with great clarity exact conversations, incidents and his several locations for three hours in the bar where the shooting occurred, together with defendant's perception of the police prowl car looking for him. All of these questions of fact were submitted to a jury and resolved against the defendant. On the question of intent, see State v. Laughlin, 105 Mont. 490, 73 P.2d 718, and State v. Lukus, Mont., 423 P.2d 49, decided January 20, 1967. The judgment of conviction is affirmed. JAMES T. HARRISON, C.J., and ADAIR, CASTLES and JOHN C. HARRISON, JJ., concur.

January 31, 1967

aec35509-182b-4fd3-bdea-b340fdfed1a2

BOWERMAN v STATE COMPENSATION FUND

N/A

83-061

Montana

Montana Supreme Court

NO. 83-61 IN THE SUPREPU COURT OF THE STATE OF MONTANA 1983 JERRY BOWERMAN, Claimant and Appellant, -vs- EMPLOYMENT SECURITY COMMISSION, Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Utick, Grosfield & Uda; Norman Grosfield argued, Helena, Montana For Respondent: Wm. Bailey Dunn argued, Helena, Montana Submitted: September 16, 1983 Decided: December 22, 1983 Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. The single issue presented in this appeal. is whether the statute limitations for instituting Workers ' Compensation claim is tolled in the case of a latent injury during the period that the injury was unknown or unsuspected by the claimant. We hold that the statute of limitations is tolled during that period. This is an appeal by the claimant Jerry Fowerman from a decision of the Workers' Compensation Court that his claim for compensation is ba-rred by section 39-71.-60l, MCA (1981). That statute provides: "(1) In cases of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him on his behalf. " (2) The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months. " Subparagraph (2) of section 39-71-601, was added by the legislature in 1973 ( 5 1, Ch. 264, Laws of 1973). This Court, in dicta, in Williams v. Wellman-Power Gas, Inc. (1977), 174 Mont. 387, 389-390, 571 P.2d 90, 92, stated that the purpose of the 1973 amendment was to solve the latent injury problem by granting the Division the authority to extend the time period. on a reasonable showing of lack of knowledge of disability. The employer and the insurer in this case rely on language of the 1973 enactment and the dicta in Williams v . Wel-lman-Power Gas, Inc. as an indication that the legislature has acted with respect to latent iniuries and the courts should permit no further extensions. In the facts reported to us in this case, the claimant Bowerman suffered an industrial injury arising out of and in the course of his employment in 1976 when he fell into a stairwell after stepping on a pencil. He immediately reported the incident to his supervisor, who recommended that Bowerman file a report. However, Bowerman did not file a claim or report at the time of the accident because he felt it was not necessary as he was only "shaken up." In late 1976, claimant began experiencing headaches. On January 7, 1977, he sought treatment from an optometrist who diagnosed his problem as myopic astigmatism, unrelated to the 1976 injury. In December 1977, he sought treatment for shoulder pain and headaches from an orthopedic surgeon who diagnosed cuff tendonitis. The same doctor treated claimant again in 1979. About March 1980, claimant's condition worsened to the point that he concluded that his back pain and headaches were not going to disappear on their own. His employer was informed that his ability to perform on the job was impaired. On May 25, 1981-, Bowerman terminated his employment for the sole reason of his health condition. Coworkers and witnesses testified that Bowerman did not display symptoms of physical difficulties until late sprinq 1980. On December 15, 1980, Bowerman submitted a claim for Workers' Compensation coverage to the State Compensation Insurance Fund because of his disabling physical condition. The case was referred to a hearing examiner for the Division of Workers' Compensation who ruled that the claimant was precluded from having his claim considered because it was submitted more than three years after the time of the accident. The hearing examiner reasoned that the decision as to whether the latent injury concept was an exception to the three year maximum time limit under section 39-71-601, MCA, properly rested with this Court. Bowerman excepted to the decision of the hearing officer . On April 20, 1982, the administrator of the Division issued his order of determination sustaining the findings and conclusion of the hearing officer. Thereafter Bowerman appealed to the Workers' Compensation Court. That court determined that the claim had been filed too late under the applicable statute of limitations. It is from the decision of the Workers' Compensation Court that the matter comes on appeal to this Court. In general, Bowerman's contentions are that the time period for Workers' Compensation claims should not run until the claimant has been reasonably apprised of the seriousness and compensable character of his injury. He further contends that although section 39-71-601, MCA, is an "accident" type of statute in that the clock. runs from the time of the accident rather than the time of the injury, this is not an insuperable obstacle to judicial achievement of a more humane rule under libera,- construction. Bowerman also argues that the addition of subsection (2) to section 39-71-601, MCA, by the 1-egislature should not he taken to indicate an intent by the legislature to preclude any other application of the latent in jury rule. Respondent contends that the language of section 39-71-601, is plain and that there is an absolute prohibition of all claims after a maximum of three years. Respondent also contends that by enacting an "accident" statute, the legislature carefully chose to limit actions from the date of the accident rather than from the manifestation of the injury and that the 1973 amendment to section 39-71-601 in enacting subsection (2) is a specific and exclusive codification by the legislature of the latent injury principle. We have held that section 39-71-601., MCA, does not exclude all late-filed. claims. In Frost v. Anaconda Company (Mont. 1982), 645 P.2d 419, 39 St.Rep. 879, and in Jaeger v . Stauffer Chemical Company (Mont. 1982), 645 P.2d. 942, 39 St.Rep. 919, it was he1.d that the statutory period could be tolled for equitable reasons where the injured worker was paid by his employer sums equivalent to Workers1 Compensation benefits which in effect lulled the injured worker into failure to timely file for Workers' Compensation. The Workers' Compensation Court noted that in 3 Larson, Workmen's Compensation Law, S S 78.40, at 15-155, et seq. (1983) , the author argues for an interpretation of the time period for notice of claim to be tolled until the claimant as a reasonable man should recognize the nature, seriousness and probable, compensable character of his injury or disease. Larson says: "It is odd indeed to find, in a supposedly beneficent piece of legislation, the survival of this fragment of irrational cruelty surpassing the most technical forfeitures of legal statutes of limitation. Statutes of limitation generally proceed on the theory that a man forfeits his rights only when he inexcusably delays assertion of them, and any number of excuses will toll the running of the period. But here no amount of vigilance is of any help. The limitations period runs against a claim that has not yet matured; and when it matures, it is already barred.. . ." Larson, supra, S 78.4?(S), at 15-225. In Johnson v. St. Patri.ckls Hospital (1966), 148 Mont. 1-25, 417 P.2d 469, this Court by judicial decision did not follow the literal language of the statute of limitations, but adopted the rule in a medical. malpractice case that where a foreign object is neglj-gently left in a patient's body and the pa.tient is ignorant of the fact, his time for filing action does not begin until the patient learns of or in the exercise of reasonable care and diligence should have learned of the presence of the foreign object in his body. In that case the dissenting justice contended that it was a matter for the legislature to determine. The legislature did in fact subsequently enact such a provision in 1971 (section 27-2-205, MCA) . It is not exclusively evident that in enacting subsection ( 2 ) of section 39-71.-601, MCA, the legislature was acting only with respect to latent injuries unsuspected by the claimant. The language of subsection (2) is broad and could encompass any number of situations where in equity the Division would be moved to extend the time for filing the notice of claim up to the 24 months provided. We would prefer a specific enactment by the legislature of a statute of limitations relating to latent injury claims. The course taken by this Court in medical malpractice claims in Johnson v. St. Patrick's Hospital, supra, had the effect of prodding the legislature into providing expressly for an extended period of 1imi.ta.tions where the nec~ligence of the treating physician or hospital was not discovered by the patient within the time allowed by the applicable statute of limitations. The logic expressed by Larson in his position that latent injuries should not be barred by the statute of limitations until the statutory period has run from the time of dscovery is unassailable, and appeals to this Court whose duty is to interpret liberally the provisions of the Workers' Compensation Act. We therefore determine that section 39-71-601, MCA, should be interpreted, in cases of latent injury, so that the time period for notice of claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable, compensable character of his latent injury. Accordingly, the decision of the Workers' Compensation Court is reversed and this cause is remanded to the Workers' Compensation Court for further proceedings, either before the Court or Division, except that section 39-71-601, MCA, shall not be considered a bar to Bowerman's claim. The Workers' Compensation Court did not decide in this case whether Bowerman in fact su.stained a compensable cla.im. It was not necessary for the Workers' Compensation Court to reach that decision because of its interpretation of the statute of 1-imitations question. \ f i l e likewise express no opinion as to the compensahility of Bowerman's injury. We Concur: ?i-d JM Chief Justice C A B - a%--%?-- Justices The Hon. Diane G. Barz, District JuZge, dissenting: I respectfully dissent from the majority opinion because I believe the result reached therein is contrary to the clear legislative enactment. Prior to 1973, any claim not presented within twelve months from the date of the happening of the accident was barred. In 1973, the legislature enacted subsection ( 2 ) as follows: "The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months. " The 1973 emendment strongly suggests that the legislature was attempting to deal with the latent-injury problem. Recognizing that subsection (1) made no allowance in cases where a claimant was unaware that he had suffered a disability, the legislature, by the enactment of subsection (2), specified that a claimant who lacked knowledge of his disability could he granted an a2ditional 24 months in which to present a claim. As a consequence of the maiority' s holding, subsection (2) is rendered meaningless. Forthwith, the Division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement for an unlimited period of time. Such a result is inconsistent with the plain meaning of the statute. I have no quarrel with the assertion that the Workers' Compensation Act is to be liberally construed in favor of the injured worker. However, the majority's construction runs contrary to the express limitation of the statute. The restraint exercised. by the Supreme Court of our sister state, Wyoming, in the face of an undesirable result, is noteworthy in that it reminds us that our function as jurists is to interpret, and not to enact. In State ex rel. Director, Workers ' Compensation Division v. Wyo-Dak (Wyo. 1 9 7 9 ) , 589 P.2d 835, an injured worker's claim was denied because the filing time had expired, even though the disability was of a type that he could have no knowledge of until after the statute of limitations had run. Justice Rose, specially con-curring, observed: "I agree with the result and reasoning of this decision, but I feel compel-led to emphasize that I do so because I am not permitted, under the pretense of statutory interpretation, to rewrite a clear legislative enactment." Wyo-Dak, 589 P.2d a . t 839. Recause the statute was clear in meaning, the Court could not apply rules of construction--liberal or otherwise. The legislation. dealt with by the Wyoming Court in Wyo-Dak was recognized as being particularly unfair, and the sane recognition might be made of our own statute, which permits waiver of the time limit only up to an additional 24 months. Regardless, the legislature has spoken to the issue, and this Court should not auestion its wisdom in so doing. Accordingly, I would affirm the decision of the Workers' Compensation Court. Hoh. Diane G. Barz, District Judge, sitting for \ Mr. Justice Frank B. Morrison , I 1 join in the foregoing dissent of Judge d z : . . - 1 i

December 22, 1983

6f05bd17-b985-4fc4-8b40-04b550effa78

STATE v HOLMES

N/A

83-197

Montana

Montana Supreme Court

NO. 83-197 IN THE SUPRE143 COURT OF THE STATE OF MONTANA 1983 STATE OF MONTANA, Plaintiff and Respondent, -vs- JAMES D. HOLMES, Defendant and Appellant. APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Valley, The Honorable M. James Sorte, Judge presiding. COUNSEL OF TXCORD : For Appellant: Moses Law Firm; Stephen Moses argued, Billings, Montana For Respondent: Won. Mike Greely, Attorney General, Helena, Montana Judy Browning argued, Asst. Atty, General, Helena David Nielsen, County Attorney, Glasgow, Montana Submitted: September 12, 1983 Decided: December 13, 19 83 -- -- - . . -. Clerk Mr. J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court. T h i s is a n a p p e a l from c e r t a i n d e n i e d m o t i o n s , c o n v i c t i o n s and t h e s e n t e n c i n g of a p p e l l a n t James D. Holmes on two c o u n t s of f e l o n y t h e f t from t h e D i s t r i c t Court of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t , V a l l e y County, Montana. The f a c t s i n t h i s c a s e a r e s e t f o r t h a s f o l l o w s . James D. Holmes s e r v e d a s p r e s i d e n t of V a l l e y I n d u s t r i a l Park I n c . ( V I P . ) , a n o n p r o f i t c o r p o r a t i o n set up t o o p e r a t e and m a i n t a i n t h e former Glasgow Air Force Base. On A p r i l 9, 1981, Holmes t r a v e l e d w i t h Brenda H i l l by c h a r t e r a i r p l a n e t o G r e a t F a l l s . I n G r e a t F a l l s , a t Eklund's Appliance and T.V., Holmes n e g o t i a t i e d w i t h Harvey Barvyo, a salesman, t o o b t a i n 3 7 , 19-inch t e l e v i s i o n sets f o r V.I.P. Included i n t h i s p u r c h a s e , b u t n o t r e f l e c t e d on t h e i n v o i c e , was a "Sony" l a r g e s c r e e n t e l e v i s i o n . The p u r c h a s e r e f l e c t e d a h i g h e r a v e r a g e p r i c e f o r each i n d i v i d u a l s e t s o a s t o d i s g u i s e t h e p r e s e n c e of t h e "Sony." On A p r i l 1 0 , 1981, Holmes went t o Big Sky T.V. i n Glasgow, Montana, and purchased more t e l e v i s i o n sets. H e i n c l u d e d i n t h i s p u r c h a s e a t r a s h c o m p a c t o r and a dishwasher. The l a r g e s c r e e n "Sony" t e l e v i s i o n was shipped w i t h l a b e l i n g i n d i c a t i n g it was t o be p i c k e d up by Holmes, and i n f a c t Mrs. Holmes r e c e i v e d t h e television. Holmes o r d e r e d t h e t r a s h compactor and dishwasher t o be d e l i v e r e d t o a v a c a n t house n e x t t o t h e Holmes' house. Holmes a s s e r t s t h a t t h e "Sony" t e l e v i s i o n and a p p l i a n c e s purchased i n A p r i l were f o r an e x e c u t i v e home ( t h e v a c a n t house) l o c a t e d n e x t t o t h e Holmes ' house. I n J u l y of 1981, V.I.P. t e r m i n a t e d Holmesl employment. I-Ie then went on v a c a t i o n and r e t u r n e d o n l y v e r y b r i e f l y t o h i s r e s i d e n c e i n Glasgow. He l e f t t h e d e t a i l s of packing and moving t o h i s wife. O n August 18, 1981, a moving company t r a n s p o r t e d t h e Holmes' p e r s o n a l p o s s e s s i o n s from t h e Glasgow r e s i d e n c e t o a s t o r a g e warehouse i n B i l l i n g s . T e s t i m o n y i n d i c a t e s Mrs. Holmes d i r e c t e d t h e mover t o i n c l u d e t h e items i n q u e s t i o n w i t h t h e i r p e r s o n a l p r o p e r t y , t h e r e b y co-mingling. These i t e m s ended up i n s t o r a g e i n B i l l i n g s w i t h t h e r e s t of t h e Holmes' p r o p e r t y . The Holmes' t h e n t r a v e l e d t o Georgia t o l i v e . I n September, a u t h o r i t i e s i n i t i a t e d an i n v e s t i g a t i o n and d i s c o v e r e d t h i s V.I.P. p r o p e r t y w i t h Holmesl p r o p e r t y i n B i l l i n g s . A s p e c i a l i n v e s t i g a t o r , Tom Adams, t r a v e l e d t o Georgia and interviewed Holmes a t h i s l i v i n g q u a r t e r s . Following t h e i n t e r v i e w , Holmes claimed he f i r s t d i s c o v e r e d t h e V.I.P. p r o p e r t y co-mingled w i t h h i s by examining a b i l l of l a d i n g prepared by t h e movers and s i g n e d by h i s wife. The V a l l e y County A t t o r n e y ' s o f f i c e then charged Holmes w i t h four c o u n t s of f e l o n y t h e f t . The c o u r t l a t e r d i s m i s s e d two of t h e c o u n t s . During t h e p e r i o d l e a d i n g up t o Holmes' d i s m i s s a l from V.I.P., much p u b l i c i t y c e n t e r e d a r o u n d Holmes and t h e a c t i v i t i e s a t V.I.P. Around t h a t t i m e , government o f f i c i a l s c o n s i d e r e d using V.I.P. f o r a Cuban r e f u g e e camp. T h i s c r e a t e d a g r e a t c o n t r o v e r s y i n Glasgow and made Holmes a v e r y c o n t r o v e r s i a l f i g u r e . Many newspapers c a r r i e d r e l a t e d s t o r i e s , and e v e r y j u r o r d u r i n g v o i r d i r e s t a t e d t h e y knew of V.1.P and Holmes. A t t h e t r i a l f o l l o w i n g v o i r d i r e , one of t h e s e l e c t e d j u r o r s heard a r a d i o news account of t h e c a s e and t h e n conversed w i t h t h e newscaster a t a l o c a l s t o r e . Following t e s t i m o n y by t h e j u r o r and t h e n e w s c a s t e r , t h e c o u r t d i s m i s s e d h e r from t h e j u r y . T h e r e a f t e r , t h e r e remained no a l t e r n a t e j u r o r . Then, a t t h e end of t h e t r i a l , b e f o r e t h e j u r y reached a v e r d i c t , a t h i r d p e r s o n t o l d t h e j u r y w h i l e t h e y were s e a t e d f o r l u n c h , "I d o n ' t c a r e what you t h i n k , h e ' s g u i l t y . " The p e r s o n was charged w i t h improper i n f l u e n c e on an o f f i c i a l and f o r f e i t e d bond. Due t o t h i s i n c i d e n t , t h e c o u r t p o l l e d t h e j u r y p r i o r t o announcing t h e v e r d i c t , t o d e t e r m i n e whether t h e y made t h e i r d e c i s i o n w i t h o u t e x t e r n a l p r e s s u r e s o r i n f l u e n c e s . They answered a f f i r m a t i v e l y . A p p e l l a n t p r e s e n t s many i s s u e s f o r review: (1) Did t h e c o u r t e r r i n denying d e f e n d a n t ' s motion f o r a change of venue? ( 2 ) Did t h e c o u r t e r r i n denying a new t r i a l on t h e grounds of j u r y tampering? ( 3 ) Can t h e c o u r t p r o p e r l y s e n t e n c e on t h e two c o u n t s of f e l o n y t h e f t ? ( 4 ) Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e c o n v i c t i o n ? ( 5 ) Did t h e c o u r t e r r i n denying motions t o d i s m i s s , based on improper i n f o r m a t i o n ? ( 6 ) Did t h e c o u r t e r r i n g i v i n g and o m i t t i n g c e r t a i n j u r y i n s t r u c t i o n s ? ( 7 ) Did t h e c o u r t e r r by r e f u s i n g t o d i s q u a l i f y i t s e l f f o r s e n t e n c i n g ? ( 8 ) Did t h e c o u r t v i o l a t e r u l e s of e v i d e n c e of t h e s e n t e n c i n g h e a r i n g ? ( 9 ) Was t h e s e n t e n c e e x c e s s i v e ? ( 1 0 ) Did t h e c o u r t e r r i n n o t s u p p r e s s i n g t h e d e f e n d a n t ' s s t a t e m e n t t o an i n v e s t i g a t i n g s p e c i a l d e t e c t i v e due t o t h e l a c k of a Miranda warning? A p p e l l a n t f i r s t c o n t e n d s t h e c o u r t e r r e d i n denying a change of venue. T h i s C o u r t i n S t a t e v. Link (Mont. 1 9 8 1 ) , 640 P.2d 436, 38 St.Rep. 982, s t a t e s : " [ T l h e r u l e is t h a t a n a c c u s e d is e n t i t l e d t o a change of venue when it a p p e a r s t h e r e a r e r e a s o n a b l e grounds t o b e l i e v e t h a t t h e p r e j u d i c e a l l e g e d a c t u a l l y e x i s t s and t h a t by r e a s o n of t h e p r e j u d i c e t h e r e is a r e a s o n a b l e a p p r e h e n s i o n t h a t t h e a c c u s e d c a n n o t r e c e i v e a f a i r and i m p a r t i a l t r i a l . People v. B e r r y ( 1 9 6 7 ) , 37 I11.2d 329, 226 N.E.2d 591, 592-593." I n S t a t e v. P a i s l e y (Mont. 1 9 8 3 ) , 663 P.2d 322, 324, 40 St.Rep. 763, 765, w e s t a t e d : "Absent abuse of d i s c r e t i o n , t h e District C o u r t ' s r u l i n g on a motion f o r change of venue w i l l be a f f i r m e d . S t a t e ex r e l . Coburn v. B e n n e t t ( 1 9 8 2 ) , Mont. I , 655 P.2d 502, 506, 39 St.Rep. 2300, 2306. "When p r e j u d i c i a l p r e t r i a l p u b l i c i t y is a l l e g e d , t h e p u b l i c i t y m u s t b e i n f l a m m a t o r y a n d c r e a t e a r e a s o n a b l e a p p r e h e n s i o n t h a t a f a i r t r i a l is n o t p o s s i b l e b e f o r e t h e m o t i o n w i l l b e a r a n t e d . S t a t e v. Richardson (1982) , 2 Mont . - 1 - , 647 P.2d 830, 832, 39 St.Rep. 1201, 1203-04." A p p e l l a n t s p o i n t t o some newspaper a r t i c l e s t h a t t h e y c o n s i d e r inflammatory and p r e j u d i c i a l . The a r t i c l e s focused on t h e a t t e m p t t o b r i n g Cuban r e f u g e e s t o t h e a r e a , and mention c r i t i c i s m of Holmes, b u t none r e g a r d i n g t h e a l l e g e d c r i m i n a l a c t i v i t i e s . Because of h i s p o s i t i o n , he became a n o t o r i o u s and c o n t r o v e r s i a l f i g u r e . Though p r e j u d i c e and inflammation could a r i s e from i n c i d e n t s and t r a n s a c t i o n s c o n c e r n i n g an accused u n r e l a t e d t o t h e c h a r g e s a t hand, such is n o t t h e c a s e h e r e . During e x t e n s i v e v o i r d i r e , a l l t h e j u r o r s claimed t h e y had heard of Holmes, b u t o n l y two p e o p l e were removed because t h e y e x p r e s s e d p r e j u d i c e a g a i n s t him. The c o u r t removed one more j u r o r a f t e r empanelment, b u t n o t due t o any p r e c o n c e i v e d p r e j u d i c e a c q u i r e d p r i o r t o t r i a l . W e f i n d no abuse of c o u r t ' s d i s c r e t i o n i n t h i s c a s e . T r a n s c r i p t s i n d i c a t e t h e D i s t r i c t C o u r t used many p r e c a u t i o n s t o i n s u r e f a i r n e s s and t h e r e f o r e p r o p e r l y d e n i e d a p p e l l a n t ' s motion f o r a change of venue. A p p e l l a n t ' s second i s s u e i n v o l v e s t h e i n c i d e n t t h a t o c c u r r e d w h i l e t h e j u r y was a t lunch. A p p e l l a n t c o n t e n d s t h a t t h e comment made by a t h i r d p a r t y t o t h e j u r y c o n s t i t u t e d j u r y tampering. W e d i s a g r e e . A p p e l l a n t cites Mattox v. U.S. ( 1 8 9 2 ) , 146 U.S. 140, 36 L.Ed 917, 13 S.Ct. 50. Even through j u r o r s s i g n e d a f f i d a v i t s s t a t i n g t h e y w e r e n o t i n f l u e n c e d , t h e U.S. Supreme C o u r t found j u r y tampering e x i s t e d when a b a i l i f f made s t a t e m e n t s t o t h e j u r o r s i n d i c a t i n g t h e d e f e n d a n t was g u i l t y . The j u r y a l s o o b t a i n e d n e w s p a p e r a r t i c l e s e x p r e s s i n g t h e d e f e n d a n t was g u i l t y . T h a t C o u r t h e l d , " P r i v a t e c o m m u n i c a t i o n s , p o s s i b l y p r e j u d i c i a l , b e t w e e n j u r o r s and t h i r d p e r s o n , o r w i t n e s s e s , o r t h e o f f i c e r i n c h a r g e , are a b s o l u t e l y f o r b i d d e n and i n v a l i d a t e t h e v e r d i c t , a t least u n l e s s t h e i r h a r m l e s s n e s s is made t o appear." I n P a r k e r v. Gladden ( 1 9 6 6 ) , 385 U.S. 363, 17 L.Ed.2d 420, 87 S.Ct. 468, and Sheppard v. Maxwell ( 1 9 6 6 ) , 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507, c i t e d by a p p e l l a n t , t h e U.S. Supreme Court a l s o found j u r y tampering. Common t o t h e s e c a s e s was t h e f a c t t h a t t h e b a i l i f f made improper comments t o t h e j u r y r e g a r d i n g t h e g u i l t of t h e d e f e n d a n t . T h i s Court addressed t h i s problem i n S t a t e v. Eagen ( 1 9 7 8 ) , 178 Mont. 67, 582 P.2d 1195. I n t h a t c a s e a j u r o r approached a t h i r d p a r t y i n a bar and expressed h i s o p i n i o n t h a t t h e d e f e n d a n t was g u i l t y and h a l f t h e j u r o r s were f r i e n d s of t h e v i c t i m . W e s t a t e d t h e r u l e , " t h a t i f j u r y i n i s c o n d u c t is shown t e n d i n g t o i n j u r e t h e d e f e n d a n t , p r e j u d i c e t o t h e d e f e n d a n t is p r e s u m e d ; h o w e v e r , t h e presumption is n o t a b s o l u t e and may be r e b u t t e d by t h e use of t h e j u r o r s t o show f a c t s which prove t h a t p r e j u d i c e d i d n o t o r could n o t e x i s t . . . ( c i t a t i o n s o m i t t e d ) I n S t a t e v. Baugh ( 1 9 7 7 ) , 174 Mont. 456, 571 P.2d 779, a j u r o r viewed a video-tape of t h e exhumation of t h e v i c t i m ' s body. The c o u r t dismissed her from t h e j u r y and p o l l e d t h e remaining j u r o r s regarding any comments s h e may have made t h a t might have p r e j u d i c e d them. T h i s Court found no r e v e r s i b l e e r r o r p r e j u d i c i n g of t h e j u r y . These c a s e s s u g g e s t t h a t w h i l e a presumption of p r e j u d i c e e x i s t s when something improper o c c u r s w i t h a j u r y , t h e c o u r t can r e b u t . t h e presumption by t a k i n g c o r r e c t i v e s t e p s and p o l l i n g t h e j u r y a s t o whether they were i n f l u e n c e d by anything o t h e r t h a n t h e evidence i n t r o d u c e d a t t r i a l . That is n o t t o s a y t h a t t h i s is s u f f i c i e n t i n a l l c a s e s t o r e b u t ' t h e presumption. The improper a c t i v i t y must be harmless o r rendered h a r m l e s s i n o r d e r t o p r o v i d e t h e d e f e n d a n t a f a i r t r i a l . I n i n s t a n t c a s e , a t l e a s t two j u r o r s o v e r h e a r d comments made by a t h i r d p a r t y w h i l e t h e y s a t a t a t a b l e d u r i n g a lunch break. The t h i r d p a r t y made a comment, " I d o n ' t c a r e what you t h i n k , h e ' s g u i l t y . " He was coming o u t of a bar and was joking when he made t h e comment. The c o u r t p o l l e d t h e j u r y p r i o r t o t h e i r announcing t h e v e r d i c t i f t h e y were i n f l u e n c e d by anything o t h e r than t h e evidence i n reaching t h e i r d e c i s i o n . Each j u r o r answered t h a t he o r s h e made h i s o r her d e c i s i o n s o l e l y on t h e evidence p r e s e n t e d i n c o u r t and was n o t i n f l u e n c e d by anything o u t s i d e of t h e p r o c e e d i n g s . W e t h e r e f o r e f i n d no p r e j u d i c e o c c u r r e d s u f f i c i e n t t o be cause f o r a new t r i a l . A p p e l l a n t n e x t c o n t e n d s t h e c o u r t e r r e d i n n o t g r a n t i n g a motion t o d i s m i s s one c o u n t based upon d u p l i c i t y of t h e i n f o r m a t i o n . A p p e l l a n t contends t h e i n f o r m a t i o n s t a t e d o n l y one o f f e n s e e x c e p t they mentioned d i f f e r e n t i t e m s i n t h e t h e f t . T h e r e f o r e , t h e i n f o r m a t i o n should have been c o n s o l i d a t e d and o n l y one count of t h e f t charged, because t h e two c o u n t s involved o n l y one t r a n s a c t i o n . S e c t i o n 46-11-404(1), MCA, p e r m i t s t h e c o u r t t o j o i n c h a r g e s . S e c t i o n 46-11-502, MCA, p e r m i t s p r o s e c u t i o n when conduct c o n s t i t u t e s more t h a n one o f f e n s e , b u t r e q u i r e s c o n v i c t i o n of no more t h a n one o f f e n s e i f : " ( 1 ) one o f f e n s e is i n c l u d e d i n t h e o t h e r ; ( 2 ) one o f f e n s e c o n s i s t s o n l y of a c o n s p i r a c y o r o t h e r form of p r e p a r a t i o n t o commit t h e o t h e r ; ( 3 ) i n c o n s i s t e n t f i n d i n g s of f a c t a r e r e q u i r e d t o e s t a b l i s h t h e commission of t h e o f f e n s e s ; ( 4 ) t h e o f f e n s e s d i f f e r o n l y i n t h a t one is d e f i n e d t o p r o h i b i t a d e s i g n a t e d kind of conduct g e n e r a l l y and t h e o t h e r t o p r o h i b i t a s p e c i f i c i n s t a n c e o f s u c h conduct; o r ( 5 ) t h e o f f e n s e is d e f i n e d t o p r o h i b i t a c o n t i n u i n g c o u r s e of c o n d u c t and t h e d e f e n d a n t ' s c o u r s e o f c o n d u c t was i n t e r r u p t e d , u n l e s s t h e law p r o v i d e s t h a t t h e s p e c i f i c p e r i o d s o f s u c h c o n d u c t c o n s t i t u t e s e p a r a t e o f f e n s e s . " I n Parker v. C r i s t (Mont. 1 9 8 0 ) , 621 P.2d 484, 37 St.Rep. 2048, t h i s Court, c i t i n g above s t a t u t e s , e x p r e s s l y p e r m i t t e d charging seven c o u n t s of robbery a r i s i n g o u t of t h e same i n c i d e n t . I n t h e i n s t a n t c a s e , t h e s t a t e p r o s e c u t e d t h e d e f e n d a n t on two c o u n t s of t h e f t . The f i r s t count a r o s e over t h e t a k i n g of a big-screen T.V., t h e second count o c c u r r e d when t h e d e f e n d a n t t o o k c o n t r o l o v e r a few a p p l i a n c e s . While a l l of t h e s e items were loaded on a moving van, a t t h e same t i m e t o complete t h e e x e c u t i o n of unauthorized c o n t r o l over them, t h e y were a c q u i r e d through d i f f e r e n t schemes and t h e r e b y c o n s t i t u t e d d i f f e r e n t crimes. W e t h e r e f o r e f i n d t h e c o u r t p r o p e r l y found a p p e l l a n t g u i l t y and sentenced him f o r two c o u n t s of t h e f t . A p p e l l a n t c l a i m s t h e S t a t e f a i l e d t o prove i t s c a s e . S p e c i f i c a l l y t h e S t a t e f a i l e d t o i n t r o d u c e any e v i d e n c e t h a t d e f e n d a n t o r h i s w i f e e x e r t e d unauthorized c o n t r o l over t h e p r o p e r t y . F u r t h e r , a f a t a l v a r i a n c e e x i s t e d between what t h e S t a t e charged and what t h e y proved, and t h e i n f o r m a t i o n lacked s u f f i c i e n t f a c t s r e g a r d i n g t h e time and p l a c e of t h e crime. I n S t a t e v. Godsey (Mont. 1 9 8 2 ) , 656 P.2d 811, 39 St.Rep. 2354, we r e i t e r a t e t h e s t a n d a r d of review t o b e , " a f t e r viewing t h e evidence i n t h e l i g h t most f a v o r a b l e t o p r o s e c u t i o n , any r a t i o n a l t r i e r of f a c t could have found t h e e s s e n t i a l elements of t h e crime beyond a r e a s o n a b l e doubt." W e f i n d s u f f i c i e n t evidence t o s u p p o r t t h i s v e r d i c t . Evidence demonstrated t h a t a p p e l l a n t , by v i r t u e of h i s p o s i t i o n , could d i s g u i s e t h e purchase of a big-screen T . V . and o t h e r a p p l i a n c e s . He c o n t r o l l e d t h e V . I . P . o p e r a t i o n which enabled him t o s h u f f l e t h e p r o p e r t y around, u n t i l it was f i n a l l y loaded i n t o a moving van with a l l of h i s o t h e r p r o p e r t y . He precluded V . I . P . from knowing of t h e e x i s t e n c e or whereabouts of t h e p r o p e r t y he o r d e r e d it t o purchase. W e t h e r e f o r e f i n d s u f f i c i e n t evidence t o s u p p o r t t h e v e r d i c t . A p p e l l a n t a r g u e s t h e r e e x i s t s a f a t a l v a r i a n c e between what he was charged w i t h and what t h e S t a t e p r e s e n t e d . The i n f o r m a t i o n s t a t e d t h e t h e f t o c c u r r e d on o r about August 18, 1981, y e t t h e S t a t e ' s c a s e a l s o involved t r a n s a c t i o n s t h a t o c c u r r e d i n A p r i l of 1981. W e f i n d t h e a p p e l l a n t was c o n v i c t e d upon proper information. S e c t i o n 4 6 - 1 1 - 4 0 1 ( l ) ( c ) ( i v ) , MCA, p r o v i d e s t h e charge s h a l l s t a t e t h e time and p l a c e of t h e o f f e n s e a s can be done. I n S t a t e v. Dunn ( 1 9 7 0 ) , 155 Mont. 319, 327, 472 P.2d 288, 294, w e s t a t e d t h e test of t h e s u f f i c i e n c y of t h e language t o be, " I s t h e d e f e n d a n t a p p r i s e d of t h e c h a r g e s brought a g a i n s t him s o a s t o p r e v e n t s u r p r i s e ? . . . W e see no reason why t h e c o n t e n t s of t h e s u p p o r t i n g a f f i d a v i t s f i l e d i n t h e c a s e i n t h e p r e s e n c e of t h e d e f e n d a n t and h i s counsel . . . cannot be used i n d e t e r m i n i n g t h e meaning of t h e language c o n t a i n e d i n t h e information." The S t a t e contended t h a t on o r about August 1 8 , 1981, t h e d e f e n d a n t committed t h e f t . I n t h e a t t a c h e d a f f i d a v i t , t h e S t a t e a l l e g e d t h a t t h e a p p e l l a n t set i n t o motion t h e p r o c e s s of e x e r t i n g unauthorized c o n t r o l over t h e p r o p e r t y i n A p r i l of 1981; however, t h e a c t was n o t completed u n t i l August of 1981. C l e a r l y t h e S t a t e a p p r i s e d t h e d e f e n d a n t of t h e c h a r g e s and f a c t s t h e y would prove a t t r i a l . W e f i n d no d e f e c t i n t h e i n f o r m a t i o n o r any v a r i a n c e between what was charged and what t h e S t a t e p r e s e n t e d a t t r i a l . A p p e l l a n t n e x t o b j e c t s t o t h e g i v i n g and denying of c e r t a i n j u r y i n s t r u c t i o n s . "On a p p e a l , w e review t h e i n s t r u c t i o n s a s a whole. S t a t e v. Farnes ( 1 9 7 6 ) , 171 Mont. 368, 558 P.2d 472. I t i s impossible t o d e l i v e r t h e whole of t h e law i n any one i n s t r u c t i o n , and f o r t h a t reason, a l l i n s t r u c t i o n s a r e c o n s i d e r e d a s a whole and i f t h e y f a i r l y t e n d e r t h e c a s e t o a j u r y , t h e f a c t t h a t o n e i n s t r u c t i o n s t a n d i n g a l o n e is n o t a s f u l l o r a c c u r a t e a s it m i g h t b e i s n o t r e v e r s i b l e e r r o r . S t a t e v. Caryl ( 1 9 7 5 ) , 168 Mont. 414, 543 P.2d 389." S t a t e v. Coleman ( 1 9 7 9 ) , 185 Mont. 299, 397, 605 P.2d 1000, I n i n s t a n t c a s e t h e i n s t r u c t i o n s d e l i v e r e d f a i r l y t e n d e r e d t h e c a s e t o t h e j u r y , we t h e r e f o r e f i n d no p r e j u d i c i a l e r r o r o c c u r r e d i n t h e j u r y i n s t r u c t i o n s . The n e x t i s s u e w e w i l l c o n s i d e r is, d i d t h e c o u r t e r r i n r e f u s i n g t o d i s q u a l i f y i t s e l f i n t h e s e n t e n c i n g proceeding? A p p e l l a n t moved t o d i s q u a l i f y Judge S o r t e because he signed o r d e r s f o r i n v e s t i g a t i v e subpoenas and o r d e r s f o r s e i z u r e d u r i n g t h e p e r i o d of p r e s e n t e n c e i n v e s t i g a t i o n . 9 e made t h o s e o r d e r s f o l l o w i n g a review of a£ f i d a v i t s submitted by t h e V a l l e y County a t t o r n e y . The county a t t o r n e y was i n v e s t i g a t i n g a n o t h e r c r i m i n a l c a s e i n v o l v i n g a p p e l l a n t and sought t h e n e c e s s a r y o r d e r s . I n i n s t a n t c a s e , nothing s u g g e s t s t h a t Judge S o r t e s o u g h t a d d i t i o n a l i n f o r m a t i o n o r t h e S t a t e s o u g h t t o i n f l u e n c e h i s s e n t e n c i n g d e t e r m i n a t i o n by p r e s e n t i n g a f f i d a v i t s i n s u p p o r t of o r d e r s i n o r d e r t o f a c i l i t a t e an i n v e s t i g a t i o n . Nothing i n d i c a t e s t h e c o u r t r e l i e d on t h i s m a t e r i a l t o i n f l u e n c e its d e c i s i o n . I n f a c t t h e c o u r t s p e c i f i c a l l y s t a t e d it would n o t c o n s i d e r any i n f o r m a t i o n r e c e i v e d c o n n e c t e d w i t h t h e o t h e r i n v e s t i g a t i o n f o r s e n t e n c i n g purposes. I n S t a t e v. Olson (Mont. 1 9 8 0 ) , 514 P.2d 1 0 6 1 , 37 S t . R e p . 1 3 1 3 , t h i s C o u r t f o u n d p r o p e r s e n t e n c i n g when t h e c o u r t was exposed t o improper m a t t e r s b u t r e f used t o c o n s i d e r them. I n i n s t a n t c a s e , we f i n d no p r e j u d i c e d e r r o r i n s e n t e n c i n g when t h e c o u r t r e f u s e d t o c o n s i d e r m a t t e r s i n v o l v i n g i n v e s t i g a t i o n s i n t o o t h e r a l l e g e d crimes committed by a p p e l l a n t . A p p e l l a n t a s s e r t s t h e c o u r t improperly conducted t h e s e n t e n c i n g h e a r i n g by p e r m i t t i n g r e l a x e d r u l e s of evidence. I n S t a t e v. Lamere (Mont. 1 9 8 3 ) , 658 P.2d 376, 40 St.Rep. 110, w e s t a t e d t h a t t h e Montana Rules of Evidence do n o t a p p l y t o s e n t e n c i n g h e a r i n g s , R u l e 1 0 1 ( c ) ( 3 ) , Mont.R.Evid. W e f i n d i n i n s t a n t c a s e t h e c o u r t c o r r e c t l y used r e l a x e d r u l e s of evidence f o r s e n t e n c i n g purposes. A p p e l l a n t c l a i m s t h e c o u r t imposed an e x c e s s i v e s e n t e n c e . Appellant l e g a l l y f a i l s t o show any c l e a r abuse of d i s c r e t i o n . H e merely a r g u e s on e q u i t a b l e terms t h a t t h e s e n t e n c e is u n f a i r . T h i s m a t t e r should be brought b e f o r e t h e Sentence Review Board and n o t t h i s Court. S t a t e v. Hubbard (Mont. 1 9 8 2 ) , 649 P.2d 1331, 39 St.Rep. 1608. A p p e l l a n t f i n a l l y a r g u e s t h a t t h e testimony of Tom Adams should have been suppressed. He c l a i m s Adams f a i l e d t o g i v e him Miranda warnings. T h i s p r e c l u d e s any s t a t e m e n t s made by him t o Adams t o be admitted into evidence. W e d i s a g r e e . P.ppellant r e l i e s on Niranda v. Arizona ( 1 9 6 6 ) , 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, f o r t h e p r o p o s i t i o n t h a t s t a t e m e n t s made, w h i l e a person is i n c u s t o d y o r " o t h e r w i s e deprived of h i s freedom by a u t h o r i t i e s i n any significant way," are inadmissible unless warnings are given. Orozco v . Texas (1969), 394 U.S. 324, 22 L.Ed.2d 311, 89 S.Ct. 1095, the Supreme Court held that four officers who surrounded and questioned a defendant at his home constituted sufficient impairment of freedom and thereby suppressed statements made without Miranda warnings. The U.S. Supreme Court in Brewer v. Williams (1977), 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232, stated that when a person is in custody and they request an attorney, further questioning must stop until an attorney is present. Appellant contends the language in State v. Blakney (1979), 185 Mont. 470, 605 P.2d 1095, "maybe I should have an attorney" requires questioning to cease. In State v. Ryan (1979), 182 Mont. 130, 135, 595 P.2d 1146, 1143, we stated: " [MI iranda warnings are required only where there has been such a restriction on a person's freedom as to render him in custody. ' It was that sort of coercive environment to which Mir anda by its terms was made applicable, and to which it is limited. [Oregon v. Mathiason (1977)], 429 U.S. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719." In instant case, the appellant invited Tom Adams and a Georgia officer into the residence where he was staying, and during a cup of coffee, discussed the whereabouts of the missing V.I.P. property. Appellant requested an attorney if their conversation was taped. Thereafter Adams did not use a tape recorder and sought to hear appellant's side of the story. Adams neither sought a confession nor even suggested he would be under arrest. Appellant was never in custody, nor was his freedom restricted in any way. He requested an attorney only if a t a p e r e c o r d e r was u s e d . H e made no i n c r i m i n a t i n g s t a t e m e n t s . W e t h e r e f o r e hold t h e c o u r t p r o p e r l y a d m i t t e d Tom Adams' testimony. A p p e l l a n t made h i s s t a t e m e n t s t o Adams v o l u n t a r i l y and f u r t h e r , because he was n o t i n a c u s t o d i a l s e t t i n g o r had h i s freedom impaired i n any manner, Miranda warnings were unnecessary. W e a f f i r m t h e D i s t r i c t Court. W e concur: c a , & t 9 . & m d Chief J u s t i c e s i t t i n g i n p l a c e o f Mr. ~ u s t i c e Frank B. Morrison J r .

December 13, 1983

686dab77-6f73-4645-94d2-3184024df3ba

MARRIAGE OF OVERTON

N/A

83-216

Montana

Montana Supreme Court

NO. 83-216 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 IN RE THE MARRIAGE OF CYNTHIA LOUISE OVERTON, Petitioner and Appellant, -vs- RICHARD ORVILLE OVERTON, Respondent and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding. COUNSEL OF RECORD: For Appellant: LaRue Smith, Great Falls, Montana For Respondent : Barry T. Olson, Great Falls, Montana -- Submitted on Brief: September 15, 1983 Decided: December '22, 1983 Filed: DEC 2 2 1983 5 7 ~ & , d u * f - Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the wife, from an order of the District Court of the Eighth Judicial District, Cascade County, providing for the daughter's surname be changed to the husband's surname, his name be placed on a birth certificate and specifically settling visitation rights for husband. Cynthia Louise (Miller)(Overton) and Richard Orville Overton were married on June 13, 1979. The court entered a decree of dissolution of their marriage, March 6, 1980. Wife was pregnant at the time of the dissolution, as a result of that marriage. She gave birth to a baby girl July 2, 1980, in Great Falls, Montana. At the time of the birth, she named the child Chantelle Winifred Miller. She had two other illegitimate children with surnames Miller and desired all of her children to have the same surname so as to prevent confusion and embarrassment. In July of 1982, respondent tried to obtain a birth certificate of his daughter, Chantelle, so as to enroll her in the Indian tribal rolls. The Cascade County Clerk and Recorder's Office informed him that the birth certificate did not name a father and further stated the child's name to be Chantelle Winifred Miller. Respondent then brought this action to have his daughter's surname changed to be the same as his, and to clarify his visitation rights. Following the submission of briefs and a hearing, the court ordered the child's surname changed to Overton; that respondent's name be placed as the father on the birth certificate; and that he be granted visitation rights with his daughter one weekend a month, on alternate holidays and six weeks during the summer. Appellant raises four issues on appeal: (1) Did the court err in its findings of fact regarding the visitation rights of the husband; (2) did the court err in not conducting a welfare investigation before granting husband visitation rights; (3) did the order to change the surname of the daughter violate Section 40-5-103, MCA, and Article 11, Section 4 of the Montana Constitution; and (4) was there sufficient evidence to prove it was in the best interest and welfare of the child to have her surname changed? This Court will not overturn findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. "We will not substitute our judgment for that of the trier of fact, but rather will only consider whether substantial credible evidence supports the findings and conclusions. These findings will not be overturned by this Court unless there is a clear preponderance of the evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings. Nicolai v. Nicolai (Mont. 1981), 631 P.2d 300, 303, 38 St.Rep. 1100, 1103. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. " Appellant contests the court's findings on the issue of visitation rights. A review of the evidence shows sufficient evidence to support the findings. We do not find the District Court clearly erroneous in its findings on the issue of visitation. Appellant contends the trial court erred when it first stated it would request a welfare investigation on respondent before granting visitation rights and then p r o c e e d t o make t h e o r d e r f o r v i s i t a t i o n w i t h o u t s a i d i n v e s t i g a t i o n . The D i s t r i c t C o u r t may r e q u i r e i n v e s t i g a t i o n , i n t e r v i e w s and g a t h e r t h i s i n f o r m a t i o n as it deems n e c e s s a r y . Such review is w i t h i n t h e D i s t r i c t C o u r t ' s d i s c r e t i o n f o r t h e d e t e r m i n a t i o n o f v i s i t a t i o n r i g h t s . S e c t i o n 40-4-217, MCA presumes t h e n o n c u s t o d i a l p a r e n t is e n t i t l e d t o r e a s o n a b l e v i s i t a t i o n r i g h t s s o l o n g as it is i n t h e b e s t i n t e r e s t of t h e c h i l d . "To a s s u r e t h a t t h i s s t a n d a r d is complied w i t h , it is e s s e n t i a l t h a t t h e t r i a l c o u r t examine a l l p e r t i n e n t and r e l e v a n t f a c t o r s p r e s e n t e d a t t r i a l . ' ' J o n e s v. J o n e s (Mont. 1 9 8 0 ) , 620 P.2d 850, 37 St.Rep. 1973. The c o u r t c o n s i d e r e d t h e e v i d e n c e a t t r i a l a n d made s u f f i c i e n t f i n d i n g s a n d c o n c l u s i o n s t o s u p p o r t its o r d e r . T h e r e f o r e t h e t r i a l c o u r t d i d n o t e r r by n o t c o n d u c t i n g a f u r t h e r i n v e s t i g a t i o n . A p p e l l a n t n e x t c o n t e n d s t h e c o u r t v i o l a t e d S e c t i o n 40-6-103, MCA, and Article 11, S e c t i o n 4 o f t h e Montana C o n s t i t u t i o n , by changing t h e c h i l d ' s surname. W e d i s a g r e e . I n Firman v. Firman (Mont. 1 9 8 1 ) , 610 P.2d 178, 37 St.Rep. 888, t h i s C o u r t c o r r e c t l y found t h a t o t h e r t h a n t h e s t a t u t e s f o r name changes, S e c t i o n 27-31-101 e t s e q . , " t h e r e is no o t h e r s t a t u t e i n p o i n t . . . . " Firman, s u p r a , i n v o l v e d a d i s p u t e between a husband and w i f e o v e r t h e surname t o be used by t h e c h i l d r e n . The w i f e d e s i r e d t h e c h i l d r e n t o u s e t h e name of h e r new husband. T h i s C o u r t i n its r u l i n g d e t e r m i n e d t h e c h i l d r e n s h o u l d u s e t h e n a t u r a l f a t h e r ' s surname, based upon t h e " b e s t i n t e r e s t o f t h e c h i l d . " Firman, s u p r a (Mont. 1 9 8 1 ) , 610 P.2d 178, 181, 37 St.Rep. 888, 891. The D i s t r i c t C o u r t ' s f i n d i n g s and c o n c l u s i o n s s t a t e n o t h i n g t o t h e e f f e c t t h a t husband h a s any p r e f e r e n c e o r n a t u r a l r i g h t t o have h i s d a u g h t e r bear h i s surname. The c h i l d ' s b e s t i n t e r e s t d o e s n o t i n v o l v e t h e e q u a l i t y o f s e x e s i n t h i s c a s e . The f i n d i n g s and c o n c l u s i o n s stress t h e b e s t i n t e r e s t of t h e c h i l d . T h e r e f o r e w e f i n d a p p e l l a n t ' s argument w i t h o u t m e r i t . F i n a l l y w e t u r n t o t h e i s s u e o f : d o e s t h e e v i d e n c e s u p p o r t t h e f i n d i n g s and c o n c l u s i o n s o f t h e D i s t r i c t Court r e g a r d i n g t h e change o f name and whether it was i n t h e b e s t i n t e r e s t of t h e c h i l d ? A p p e l l a n t r a i s e s many o b j e c t i o n s t o t h e f i n d i n g s and c o n c l u s i o n s r e g a r d i n g t h e change o f name. I n reviewing t h e t r a n s c r i p t , we f i n d n o t h i n g i n t h e f i n d i n g s and c o n c l u s i o n s c l e a r l y e r r o n e o u s and t h e r e is s u f f i c i e n t evidence t o s u p p o r t t h e s e f i n d i n g s . I t should be n o t e d , t h a t t h e t r i a l c o u r t may have made a c l e r i c a l e r r o r i n f i n d i n g t h e c h i l d was of twenty-five p e r c e n t I n d i a n blood. But t h i s can be c o r r e c t e d by a Rule 6 0 ( a ) motion f o r c o r r e c t i o n of c l e r i c a l m i s t a k e s . Having f o u n d t h e D i s t r i c t C o u r t was n o t c l e a r l y e r r o n e o u s i n its f i n d i n g s and c o n c l u s i o n s , w e hereby a f f i r m . W e concur: i I L l Chief J u s t i c e

December 22, 1983

19345794-25c3-4ab0-bdcb-15210ca26b0c

R H SCHWARTZ CONSTR SPECIALTIES v

N/A

83-241

Montana

Montana Supreme Court

No. 53-241 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 R. H. SCHWARTZ CONSTRUCTION SPECIALTIES, INC., a Montana corportion, Plaintiff and Appellant, THOMAS J. HANRAHAN, Defendant and Respondent. APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Dawson, The Honorable R. C. McDonough, Judge presiding. COUNSEL OF RECORD: For Appellant: Nye & Meyer; Jerrold L. Nye argued, Billings, Montana For Respondent: Huntley & Eakin; Ira Eakin argued, Baker, Montana - - - = - - . - - - . - - - Submitted: October 27, 1983 Decided: December 6, 1 9 8 3 Filed: [jC!> ci '$83 Clerk Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Schwartz Construction filed complaint March 1983 in the District Court of the Seventh Judicial District, Dawson County, alleging legal malpractice by Thomas Hanrahan. The complaint was dismissed on May 10, 1983, for failure to state a claim upon which relief could be granted. Schwartz Construction appeals. Schwartz Construction hired Thomas Hanrahan, a 1-icensed, practicing attorney, to act as its legal counsel in two suits filed against it. According to the malpractice complaint filed by Schwartz Construction (which is the only evidence we have on the matters), Hanrahan failed to file answers in both cases. One suit resulted in a default judgment against Schwartz Construction and a subsequent sheriff's sale of some of its property. The other suit resulted in execution on Schwartz Construction's bank account. Execution on the account apparently resulted in the bank stripping Schwartz Construction's account of all funds. Section 7 of the complaint alleges: "7. The failure of the Defendant [Hanrahan] to perform even rudimentary legal functions to protect his client from the above law suits was negligent, wrongful, and failed to comply with the standard.^ by which conduct of any attorney are measured. These failures were the proximate cause of great expense and harm to Plaintiff." Further, the complaint seeks $50,000 in actual damages from Hanrahan for failure to represent his client and punitive and exemplary damages of not less than $250,000. Counsel for Hanrahan filed a motion to dismiss on April 19, 1983, based on Schwartz Construction's failure to allege that "'but for the negligence of the attorney' the particular result would not have occurred." The motion to dismiss was granted for that reason. Schwartz Construction did not attempt to amend its complaint, but brought this appeal instead. Montana's liberal rules of pleading are found in Rule 8, M.R.Civ.P. The rules relevant to this proceeding are: "Rule 8(a). Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. "Rule 8(e). Pleading to be concise and direct - consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motion are required." Schwartz Construction's claim against Hanrahan is one of attorney malpractice, a negligence action. It is axiomatic that negligence requires the existence of a duty, a breach of that duty and harm caused by that breach. The complaint at issue simply and concisely sets forth allegations supporting each of those elements: (1) Schwartz Construction hired Hanrahan to act as its legal counsel. (2) While so acting, Hanrahan failed to file answers to two complaints filed against Schwartz Construction. ( 3 Those failures resulted in default judgments against Schwartz Construction. (4) Schwartz Construction suffered $50,000 in actual damages because of those judgments and demands relief in at least that amount. Clearly, the complaint against Hanrahan is sufficient under Rule 8, M.R.Civ.P. We therefore reverse the decision of the District Court and remand this cause for trial on the complaint. This decision is limited solely to the determination that the complaint filed by Schwartz Construction adequately states a claim against Thomas Banrahan for attorney malpractice. We leave for another time the substantive issue of what type of proof is required in an attorney malpractice action. Reversed and remanded. We concur: Justices Mr. Justice John C. Sheehy, dissenting: I dissent. The order of the District Court dismissing the complai.nt here is proper. Rule 8 (a), M.R.Civ.P., provides that a claim for relief '"hall contain (1) a . short and plain sta-tement of the claim showing -- that the pleader - is entitled - to relief . . ." One cannot read into plaintiff's claim in this case any showing that the plaintiff is entitled - to relief. Para-graph 7 of the complaint, upon which the majority relies, is so vague and overbroad as to be illusory. An examination of paragraph 7 will reveal that nothing in it contains facts from which it could be drawn that the plaintiff had been improperly sued or that the judgments against it were not proper. The allegation that the failures o f Hanra.han a.s alleged in the comp'l-aint "were the proxima.te cause of great expense and harm to the pla.intiffn may include the fact that the lawsuits were properly brought, and judgments would have resulted regardless of what Hanrahan did in the premises. Therefore, the complaint does not show on its face that plaintiff "is - entitled - to relief'' in the language of Rule 8 (a) , M.R.Civ.P. An essential allegation a.gainst an attorney on the grounds of ma]-practice is that the malpractice resul-ted in actual loss to the client. As the Arizona court said in Brosie v. Stockton (1970), 105 Ariz. 574, 468 P.2d 933, 936: "The question in the instant case is whether the allegation of a representation by the defendant as an attorney for both the plaintiff and his former wife is of itself an allegation of damage to plaintiff. As far as the complaint is concerned, it falls short of stating that plaintiff was damaged in any way. He alleges the defendant, in violation of his obligations to the plaintiff, wilfully and intentionally brought suit; however, he does not allege that the suit was not a just one, nor that he did not owe money to his former wife under the property settlement. He does pray for damages, but in no place in the complaint does he allege damages. The whole theory of his cause of action is that the defendant had represented both plaintiff and his wife in a divorce case. This is not enough to show damage. ". . . 'Under the new rules of procedure the test as to whether a complaint is sufficient to withstand a motion to dismiss is whether enough is stated therein which, if true, would entitle plaintiff to some kind of relief on some theory.. . .' "In the instant case it does not appear that the plaintiff is entitled to relief under any state of facts susceptible of proof." In the words of Professor Ploore, 2A Moore's Federal Practice 8.14 at 8-136 ( 2 d ed. 1982) : "True, the courts will go very far in finding a basis on which to sustain a pleading as against a motion to dismiss for failure to stat-e a claim, but good practice demands that the pleader state his claim with simplicity and clarity in the first instance, rather than set out a jumble of unrelated facts and hope that the court will work out his case for him. Further, if the pleading is to give 'fair notice' of the claim, it will normally have to be bottomed upon some theory supporting recovery." (Footnotes omitted.) Professor Moore further points out that in ruling on the sufficien.cy of a pleading that is on the borderline, if this case can be considered on the borderline, the court should consider the following: " (1) At what stage of the action is the objection raised? "(2) Are the prima facie elements of the claim or defense stated? " (3) If these are stated, is the statement fair notice to the adverse party? " ( 4 ) Is it fea.si.ble to require more particularity?" 2A Moore's Federal Practice 9 8.13 at 8-130, 8-131 (2d ed. 1982) (Footnotes omitted.) The pleading here f a i l s t e s t no. 2 i n t h a t t h e prima f a c i e elements of t h e claim a g a i n s t Hanrahan a r e not s t a t e d , since it i s not shown t h a t t h e a c t u a l l o s s , i f any, sustained by t h e p l a i n t i f f is t h e proximate r e s u l t of t h e claimed i n s u f f i c i e n t representation of t h e attorney. It does not m e e t t e s t no. 3 because t h e pleading i s not a f a i r n o t i c e t o t h e adverse attorney, s i n c e he i s not advised from t h e pleading t h a t he i s t h e cause of a c t u a l l o s s . Moreover, i n t h i s case it i s f e a s i b l e t o r e q u i r e more p a r t i c u l a r i t y of t h e p l a i n t i f f , e i t h e r by a more d e f i n i t e statement, o r by an amendment. I hold t o t h e propriety of t h e theory of t h e Montana Rules of C i v i l Procedure, i d e n t i c a l t o t h a t of t h e Federal Rules of C i v i l Procedure, t h a t pleadings a r e i n e f f e c t n o t i c e t o t h e adverse p a r t y of t h e claim being made. I do n o t , however, throw o u t t h e window every necessity f o r pleading, because even under n o t i c e pleadings, t h e opposing p a r t y i s e n t i t l e d t o understand from t h e pleading t h e nature of t h e claim a g a i n s t him. This complaint is a r t f u l l y contrived not t o a l l e g e t h a t t h e r e was a c t u a l l o s s a r i s i n g from t h e a t t o r n e y ' s d e f i c i e n c i e s , but seems r a t h e r i n t e n t on embarassing him f o r claimed d e f i c i e n c i e s which may not have proximately resulted i n a l o s s t o t h e c l i e n t . I t i s proper under Rule 1 2 ( b ) , M.R.Civ.P., t o a t t a c k a pleading upon the ground t h a t it f a i l s " t o s t a t e a claim upon which r e l i e f can be granted. " That i s what happened here. F-ule 1 2 (b) may become u s e l e s s i f , a s here, m e r e unrelated, vague, overbroad, and i l l u s o r y statements of damage can be held t o s t a t e a claim. When t h e motion t o dismiss was made i n t h i s case on t h e ground t h a t t h e compl-aint was i n s u f f i c i e n t , t h e p l a i n t i f f did not move to amend his pleading so as to make the proper allegations. That indicates to me a basic deficiency in plaintiff's case; otherwise, a motion for amendment would have been simple to make and proper for the District Court to grant. I : therefore disagree with the ma-jority and would affirm the dismissal by the District Court. Justice I join in Justice Sheehy's dissent. d ? ! f L Justice ,

December 6, 1983

59cdbfda-3530-4cb7-aafb-c420f5a7e6d4

PURCELL v AUTOMATIC GAS DIST IN

N/A

82-054

Montana

Montana Supreme Court

NO. 82-54 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 DONALD PURCELL and JOSEPH B. GARY, Plaintiffs and Respondents, AUTOlvlATIC GAS DISTRIBUTORS, INC . , a Colorado Corp., E.D. ORSER, et al., Defendants and Appellants. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Gordon Bennett, Judge presiding. COUNSEL OF RECORD: For Appellants: Crowley, Haughey, Hanson, Toole & Dietrich; Robert Edd Lee argued, Billings, Montana Berg, Coil, Stokes & Tollefsen; Ben Berg, Jr., Bozeman, Montana John F. Blackwood, Livingston, Montana For Respondents: Landoe, Brown, Planalp, Kommers & Lineberger; James M. Kommers argued, Bozeman, Montana Submitted: October 31, 1983 Decided : December 19, 1983 Filed: , 1* d g y & 2?& c : ;" 5.-%4,-k.*& Clerk Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. The plaintiffs (Respondents) in a hench trial, recovered judgment against defendants (Appel-lants) for compensatory damages arising out of breach of contract as well as $50,000 in favor of each plaintiff for exemplary damages. Defendants Automatic Gas Distributors, Inc., (Automatic Gas) and E. D. Orser (Orsex), do not appeal the award of compensatorv damages for breach of contract but do appeal the award of punitive damages in the amount of $50,000 for each plaintiff. The defendants Western Crude Oil, Inc., (Western Crude) and Spruce Oil Corporation (Spruce Oil) appeal the entire judgment entered against them. Western Crude owns Spruce Oil (a wholesaler and unbranded jobber) and also owns Automatic Gas (an unbranded retailer) . Automatic Gas provided gasoline and pumps, meters, and other facilities, to retail operators, who were in the busi-ness of "serve yourself" gasoline sales. The retailers split profits with Automatic Gas. The two respondents were retail operators. Spruce Oil provided Automatic Gas a security of supply, having superior access to refineries, but gave Automatic Gas no special prices. P,utomatic Gas was not bound to supply its local operators with gasoline from Spruce Oil, but the local operators were required through a marketing aqreement to obtain their gasoline from Automatic Gas in return for Automatic's installation of pumps, meters and tanks. Automatic Gas had an agreement with appellant Orser to pay him $ cent per gallon of gasoline sold by the operators Orser found for Automatic Gas. Although Automatic's marketing agreement with the local operators did not reflect any obligation on the part of the local operators to pay any part of Orser's commission, nevertheless Automatic Gas withheld the Orser commission as part of the "cost of gas". Five local operators sued for damages arising from Automatic's withholding Orser's commission before splitting the net proceeds with them. The facts relating to each of the five original plaintiffs were different. Three of the operators obtained judgments for both punitive and. compensatory damages and no appeal was taken in those cases. In the cases where judgment was entered but not appealed from, there was testimony that each of the operators was falsely assured by Orser that Automatic Gas had access to lower gasoline prices and that the savings would he passed onto them. This evidence is not present in the record supporting a judgment in favor of the respondents here. The trial court assessed punitive damages on the basis of fraud and termed the Orser payment a "commission rip-off." If there is substantial credible evidence in the record to support the trial court's findings, the trial court must be affirmed. This is true though the evidence in support is inherently weak. Lacey v. Herndon (Mont. 1983), 668 P.2d 251, 40 St.Rep. 1375. Additionally, the evid.ence must be viewed in a light most favorable to the respondents. Grimsley vs. Estate of Spencer (Mont. 1983), 670 P.2d 85, 40 St.Rep. 1585. The respondents, as retailers, were solely responsible for collecting qasoline proceeds and depositing these proceeds in bank accounts set up by Automatic: Gas. All petroleum products were purchased and paid for by Automatic Gas. Respondents relied upon Automatic Gas for an accounting of all monies. The net receipts to be split were calculated by subtracting the "total cost of gasoline delivered" from the gross retail sales receipts. Such cost of gasoline was defined by the marketing agreement as follows: "b.) Total Cost of Gasoline Delivered is defined as the total delivered cost, which shall include the Distributor's cost of purchasing the gasoline, all freight costs and all applicable local, state and federal gasoline taxes and charges at and into the Distributor's dispensing equipment located as specified herein." The trial court in its Findings of Fact and Conclusions of Law, para.graph 4 of the findings of fact, found as follows: "4. In addition to the items authorized by paragraph 8 of the agreement to be utilized in arriving at net receipts, Automatic Gas included an amount representing a commission of one-half cent per gallon on all gasoline sales to be paid to E. D. Orser, one-fourth cent to be paid by Automatic Gas and one-fourth cent to be paid out of the marketer's share of gross receipts. With respect to sales of diesel fuel by Plaintiff Purcell, a commission of one-fourth cent per gallon was paid to Orser, with one-eighth cent per gallon being charged to Automatic Gas and one-eighth cent per gallon charged to the marketer. The commissions paid to E. D. Orser were not an item of cost of gasoline or diesel fuel as specified in paragraph 8 of the agreement." Regular monthly statements were supplied by Automatic Gas to the retailers. A sample commission statement was as follows: GAS COMJYIISSION, MONTH OF JANUARY, 1977 SALES (IIETERED DOLLARS ) : Regular $ 14,974,.78 Premium 2,897.69 No Lead TOTAL SALES OR NET RECEIPTS COST OF SALES: GALLONS PRODUCT COST DOLLAR AMOUNT 25,864 Regular .51774 13,390.83 4,838 Premium .54516 2,637.48 3,234 No Lead .52862 33,936 NET PROFIT Equipment Amortization Adjusted Net Profit Operating Expense 1 / 2 Due Bozeman Robbery payment Apply on Note Payment Interest NSF Short Payment Deposit Correction GALLONS SOLD THIS MONTH LAST YEAR 43,676 GALLONS SOLD YEAR TO DATE 33,936 INVENTORY OVER/SHORT The Orser commission is not identified but was included in the amount shown as product cost. The record is in conflict about the knowledge of respondents respecting the Orser commission. However, the clear preponderance of the evidence is that, at the time each of the respondents contracted with Automatic Gas, they did not know the Orser commission was going to be charged to them. The following testimony was elicited from respondent Gary on direct examination: "(2. Do you know whether or not b l r . Ed Orser's commission was included in the cost of gasoline? "A. My understanding, I didn't know how Ed Orser got paid. I never knew until you advised me that we were paying Ed Orser a commission. I never knew that until you told me." On cross-examination respondent Gary testified as follows : , "Q. When you had some questions as to the acquisition cost of the gasoline by Automatic Gas, did you ever ask Mr. Ensor ow Mr. Bruskotter to provide you with copies of delivery slips to show you evidence of the acquisition cost? "A. All I, as I told you, I would receive those monthly reports and they would say that the cost of sales, this was told to me as to what that cost Automatic Gas; and let's take December, 1976. They said it cost Automatic Gas $51,000 -- .51497 cents, and. no lead .52123 and then we would have to account for the dollars amount that we sold it for. "Q. I und.erstand that, and I understand the contents of the gasoline commission statements. What puzzles me is the fact that if that question existed, there was rather a simple way to resolve it, was there not? It was not a hidden fact by Automatic Gas. "A. Certainly. Ed Orser was certainly a hidden fact. "Q. I didn't ask about Mr. Orser but about the acquisition cost of the gasoline. "A. This is what I was told. I assumed what they were telling me was correct. I assumed they were an honest company and that that was what it was costing them. "Q. Did you ever ask Mr. Orser or Mr. Bruskutter to provide you with documentation evidencing the acquisition cost of gasoline? "A. According to what Mr. Berq introduced in evidence, apparently I did at one time; and they apparently supplied it to me. I don't remember it, though, to be very honest, and certainly since during this recess I have checked all those statements, and there is not one statement on there of any charge to Ed Orser." Respondent Gary conceded on cross-examination that, pursuant to his request, at a time subsequent to his contracting, information about the Orser commission was supplied to him. Notwithstanding this concession, it is clear from the record that there m 7 a s a period of time when the Orser commission was withheld from respondent Gary without his knowledge and in contravention of the agreement herein set forth. Respondent Purcell succeeded to the interest of Franks. There is evidence that Franks knew of the Orser commission but there is substantial credible evidence in the record to support a finding that the Orser commission was withheld from Purcel-1, in contra.vention of the agreement, without Purcellls knowledge. The trial court found compensatory damages accruing to respondent Gary in the sum of $7,091.50 representing the amount of the Orser commission improperly withheld. Likewise, the trial court found the sum of $6,107.50 was wrongfully withheld from respondent Donald Purcell. With respect to Purcell there was an offset. The compensatory awards for wrongfully withholding the Orser commission in contravention of the marketing agreement, were not appealed. These awards are grounded in breach of contract. The award of punitive damages, based upon fraud, forms the basis for this appeal. The court did not make a compensatory award for fraud but found there were actual damages. The trial court entered the judgment against all defendants including Spruce Oil and. Western Crude. The basis for the award against Western Crude and Spruce Oil was that they were part of a scheme to defraud the respondents. The following finding shows the trial court's reasoning: "The bad faith dealing implicit in their pricing scam is made explicit in their commission rip-off. There ma.y be reason to believe they did not act together and in concert, as suggested by defendants, but none appears in the record, which militates ineluctably to the conclusion that there was a high degree of cooperation between the three segments of this corporate conglomerate operating out of the same building. The credulity of the most naive observer would be reached in attempting to believe that Western Crude was uninvolved in or unaware of the operations of its two wholly-owned subsidiaries." The following two issues are presented in this appeal: 1. Is there a sufficent factual basis in the record to the support an award of punitive damages asainst all the defendants or any of them? 2 . Is there evidence in the record to support any judgment against Western Crude and Spruce Oil? Punitive damages are governed by section 27-1-221, MCA, which provides as follows: "When exemplary damages allowed. In any action for a breach of an obligation not arising from contract where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in a.ddition to the actual damages, may give damages for the sake of example and by way of punishing the defendant." If the conduct of a particular defenda.nt is tortious, the fact that there was an underlying contract, does not defeat an award of punitive damages. Gates vs. T,ife of Montana Ins. Co. (Mont. 1983), 668 P.2d 213, 40 St.Rep. 1287. In this case the trial court found. fraud which, if present in the record, would constitute a tort and provid-e a basis for an award. of exemplary damages. Section 28-2-404, MCA, states: "Fraud is either actual or constructive. Actual fraud is always a question of fact." Section 28-2-405, MCA, defines actual fraud, in relevant part, as follows: "Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with his connivance with intent to deceive another pa.rty thereto or to induce him to enter into the contract:" (emphasis added) For respondents to succeed in establishing a claim premised upon actual fraud they would have to show that defendants had an "intent to deceive" and in furtherance thereof suppressed that which they knew to be true. Certainly the fact that the Orser commission was being partlv charged to respondents was, at first, a fact concealed. The record is very weak in support of a claim that there was an "intent to deceive". Fraud may, pursuant to the provisions of 28-2-404, consist of constructive fraud. Constructive fraud is defined in 28-2-406, MCA, as: "(1) Any breach of duty which, without an acutally fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or (2) Any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud." In this case there was a fiduciary duty with respect to accounting. The respondents reposed their confidence in the accounting procedures of Automatic Gas and relied upon Automatic Gas to accurately calculate the cost of the product sold. The record shows tha.t this trust was violated and that Automatic Gas withheld the Orser comrnj.ssion as a cost of product. At the very least this constitutes a constructive fraud. Section 27-1-221, MCA, allows punitive damages for fraud. Section 28-2-404, MCA, specifically defines fraud as including constructive fraud. We therefore hold that the breach of a fiduciary relationship constituting a constructive fraud forms the basis for an award of punitive damages. Such holding accords with the "oppression" provisions of 27-1-221. This Court has defined oppression as "an act of cruelty, severity, unlawful exaction, domination - or excessive use of authority. l1 -- Ramsbacher vs. Hohman (1927), 80 Mont. 480, 488, 261 P. 273,276 (emphasis supplied). Oppression was defined in Simpson vs. Weeks (D.C.Ark., 1977), 530 F.Supp 196, 207, aff'd in part 570 F.2d 240, 1978, as: "An act is oppressively done if done in a way or manner which violates the right of another person with unnecessary harshness or severity as by misuse or abuse of authority or power." (emphasis added) Abuse of authority or power is also the essence of constructive fraud. Our inclusion of constructive fraud within the ambit of the fraud upon which punitive damages can be premised, finds additional support by the legislative inclusion of oppression as a proper basis for punishment. The failure of Automatic Gas to identify the Orser commission in accounting to respondents is sufficient factual basis for a finding of oppressioil and fraud. We therefore affirm the trial court's award of punitive damages as to Automatic Gas. We can find no basis in the record, beyond mere speculation, supporting the complicity of Western Crude or Spruce Oil. The trial court's finding is based upon a mere suspicion. The ownership of stock is i.r,sufficient. There is not a factual basis for finding that Automatic Gas, Spruce Oil, and Western Crude were a single corporation. In fact they were separate corporations with different functions. Since the record is bare of any evidence to support a finding of oppressj-on or fraud as to Western Crude or Spruce Oil we must vacate the judgment as to these two defendants. Similarly, we find no basis in the record supporting a finding of oppression or constructive fraud on the part of E.D. Orser with respect to Gary and Purcell. The essence of the wrong to these plaintiffs was the violation of the trust placed in Automatic Gas to fairly calculate and disclose the "cost" of gasoline. There is no evidence that Orser had any duty to disclose Automatic Gas' accounting methods, nor that he misrepresented or hid the fact of who was paying his commission, nor that he gained any advantage by the hidden commission. The punitive damage award, and judgment entered thereon, against Automatic Gas Distributors, Inc. is affirmed. The judgment against Western Crude Oil, Inc., Spruce Oil Corporation and E.D. Orser is vacated. The matter is remanded to the District Court with directions to enter judgment in favor of Spruce Oil Corporation, Western Crude Oil, Inc., and E.D. Orser. We concur: - Chief Justice Justices Mr. Justice John C. Sheehy, concurring in part and. dissenting: I concur with the majority opinion insofar as it sustains the punitive damage award in judgment against Automatic Gas Distributors, Inc., in favor of the plaintiffs Purcell and Gary. I dissent from the majority position that the judgments against Western Crude Oil, Inc., Spruce Oil Corporation, and E. D. Orser, must be vacated. To begin with, I am at a loss to understand how the majority can set aside the judgment aga.inst Orser. He was the agent of Automatic Gas Distributors, Inc., who came to the plaintiffs, and represented to them that if they would do business with Automatic Gas Distributors, Inc., that company could obtain for them fuel supplies at a price below what the plaintiffs would otherwise have to pay, that this would lead to a lower pump price, and thus larger volume sales and larger margin of profit per ga.llon to be split with Automatic Gas Distributors, Inc., as "net receipts" under the agreement. None of these representations were true. When the plaintiffs purchased gas from Automatic Gas Distributors, Inc., they were charged the "rack price" that any other dealer would have to pay at any other rack in the vicinity and that any other dealer would also pay Automatic Gas without such a marketing agreement. Automatic Gas did not and could not obtain fuel supplies at a price less than that otherwise obtainable. There was no margin th.at would lead to a lower pump price or to a larger volume of sales. What really occurred was that Automatic Gas became half of the dealership operated by the plaintiff and by taking half of the profit, reduced by that extent the amount that the plaintiffs might reasonably have expected to obtain as a per gallon profit if they had not dealt with Automatic Gas. Since Orser made the representations upon which the plaintiffs relied, though he was acting on behalf of Automatic Gas, it should be clear that he is equally liable with Automatic Gas for the actual loss in profits sustained by the plaintiffs, and for the punitive damages which result from his fraudulent representations. Strangely, the majority here is holding the principal and not the agent. The majority here also does not explain adequately the intercorporate relationship between the three corporations here involved. Western Crude Oil, Inc., during the times here pertinent, owned all of the stock of Spruce Oil Corporation. Western Crude Oil, Inc. also owned all of the stock of Automatic Gas Distributors, Inc. Western Crude paid all of the salaries of the employees of its two subsidiary corporations, for which it was compensated by a later bookkeeping charge-back against the subsidiaries. The corporation's headquarters are in the same office building. It appears they used the same receptionist. They may have used the same telephone number. But more important in the relationship between the parties, and particularly with respect to the representations that Orser made to the plaintiffs, is the "scam" which shocked the District Court, the method that Western Crude used, through its subsidiaries, to exact two profits from the plaintiffs. Thus, Spruce Oil Corporation purchased the gasoline products from refiners. It sold the products to Automatic Gas and others, at a price upon which Spruce Oil Corporation made a profit. Automatic Gas, taking the same product, then sold the same to the plaintiffs, again exacting one-half of the profits gained by the plaintiffs. The result was that Western Crude Oil, Inc., acting through its subsidiaries, and in contravention of Orser's representations, made large volume purchases from refiners through Spruce Oil Corporation, but did not pass on the advantage of those large volume purchases to the plaintiffs, as Orser had indicated would occur. Instead, it made a profit in the transaction from Spruce to Automatic Gas, and then Automatic Gas made a profit on the efforts of the plaintiffs in selling the gasoline product. The result, as the District Court found and concluded, was predictable: the plaintiffs and the other dealers involved with Automatic Gas all lost money, three of them went broke, one bought out at a loss of $20,000, and the only survivor (Purcell) abandoned the agreement. The District Court found that ' ' i n the course of it all they had been systematically robbed of a part of their agreed-upon profit, which they were forced to recover by this action, harrassed by the accounting practices of the defendants, and forced to exhaust their resources, other businesses, and credit to continue serving the defendants at what amounted to slave wages . . ." Western Crude's wholly owned subsidiary, Automatic Gas Distributors, Inc., employed an agent, Orser, who fraudulently induced the plaintiffs and others to enter into marketing agreements and lease agreements, and hid from them the fact that another of Western Crude's wholly owned corporations, Spruce Oil Corporation, stood behind Automatic Gas and the refiners and exacted a profit that in reality had been promised by Orser to the plaintiffs. The District Court was completely correct in assessing punitive damages against all of the defendants because all are equally responsible. The majority opinion does not answer the cross-appeal of Purcell, who is still open to further hearings on the counterclaim on which judgment against him has been entered. So that the record may be clear for him, I would hold that the judgment on the counterclaim against him in favor of Automatic Gas is not yet final, and its merits should be determined, if necessary, in a future appeal. Mr. Chief Justice Frank I . Haswell concurs with Mr. Justice John C. Sheehy's concurrence and dissent. %&A, 4. Chief '~ustice Mr. Justice Daniel J. Shea will file a written opinion later.

December 19, 1983

64b5d80f-3e63-4dcd-b2d5-b8e42f197068

Bartsch v. Irvine Company

427 P.2d 302

11252

Montana

Montana Supreme Court

427 P.2d 302 (1967) Ronald D. BARTSCH, Administrator of the Estate of Deanna L. Bartsch, Deceased, Plaintiff and Respondent, v. The IRVINE COMPANY, a West Virginia corporation, Heckman &amp; Shell, a co-partnership, and Yellowstone Park Co., a Delaware Corporation, Defendants and Appellants. No. 11252. Supreme Court of Montana. Submitted April 11, 1967. Decided May 5, 1967. Rehearing denied May 25, 1967. *303 Berg, Angel &amp; O'Connell, Lyman H. Bennett, Jr. (argued), Bozeman, for appellant. Landoe, Gary &amp; Brown, H.B. Landoe (argued), Gene I. Brown (argued), Bozeman, for respondent. JAMES T. HARRISON, Chief Justice. This is an appeal by defendant from a judgment entered in favor of plaintiff. The plaintiff-respondent is Ronald D. Bartsch, administrator of the estate of Deanna L. Bartsch, deceased, and will be referred to as plaintiff or by name. The defendant-appellant is Heckman &amp; Shell, a co-partnership, and will be referred to as defendant. The facts of this case are these: On October 5, 1965, Mr. Bartsch was returning to his home in Bozeman, Montana, from a business trip to Whitehall, Montana. Mr. Bartsch's wife Deanna and his two year old son Steven were in the car with him. He was proceeding toward Bozeman on Highway 289 east from Norris, Montana. It was getting dark, and headlights were in use. Mr. Bartsch dimmed his lights as another vehicle approached from the other direction, and just as he passed the other vehicle, he got a split second glimpse of a horse in the roadway. The vehicle and the horse collided. The horse crushed in the top of the car. Mrs. Bartsch was killed in the collision. The horse was not owned by defendant, but was being pastured by them on land which they leased. The horse had wandered off defendant's leased pasture lands and along the highway right of way for some distance. The testimony at the trial showed that the area in which the accident happened was not a herd district or a grazing district, but was simply open range country. The testimony further established that the highway on which the accident occurred was a Montana Secondary Highway. There was no evidence introduced at the trial to establish that the highway came within the definitions set forth in section 32-1018, R.C.M. 1947. This section and sections 32-1019 and 32-1020, R.C.M. 1947, have no application to the facts of this case. Plaintiff based his action on section 58-607, which provides in part: "Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned by another by his want of ordinary care or skill in the management of his property or person * * *." Plaintiff contends that allowing a horse to pasture in an area where it wandered onto the highway right of way and remained for *304 some period of time resulting in a collision with plaintiff's car is lack of ordinary care or skill in the management of property and thus negligent. At the close of all the testimony defendant moved for a directed verdict in its favor upon the grounds and for the reasons that there was a failure of proof on the plaintiff's part of any negligence on the part of defendant or of any willful act on the part of defendant in placing or permitting the horse to remain on the highway right of way where the accident occurred. The district court denied this motion. The issue presented by this appeal is whether it was negligent for defendant to pasture horses in an area of open range country in which such horses might wander onto the highway right of way during the course of their grazing. Montana has been open range country even before Montana became a state. The law of the Territory provided that recovery for damages done by trespassing livestock could only be accomplished if the trespassed property was enclosed by a lawful fence, which the laws also defined. In Smith v. Williams, 2 Mont. 195, 201, the Supreme Court of the Montana Territory dealt with an action brought for damages due to the trespass of cattle on plaintiff's land. The cattle ate plaintiff's crop of growing grain. Looking to the law which required a lawful fence before the action could be sustained, the Court made the following comment: "(W)e also think a lawful fence entirely surrounding the ground entered, or some obstruction equivalent thereto, is a condition precedent to the right to bring the action * * *." When Montana became a state, the policy of the open range continued, and the legislature enacted various statutes which dealt with trespass by livestock and the necessity of lawful fences to support any action for trespasses. In Beinhorn v. Griswold, 27 Mont. 79, 90, 69 P. 557, 558, 59 L.R.A. 771, the doctrine of the open range was further discussed and explained in another trespass action. In this action the plaintiff was the owner of the cattle, and the defendant was the owner of the land upon which the cattle had wandered and had drunk a poisonous liquid: "The cattle-owning plaintiff did not owe to the land-owning defendant the duty to fence his cattle in. The latter did not owe to the former the duty to fence them out. Neither of them was under obligation to the other in that regard. The defendant is not liable in this action unless he was negligent. There cannot be negligence without breach of duty. Hence, manifestly, the defendant was not guilty of negligence in omitting to prevent the plaintiff's cattle from going upon his unfenced land. "As has just been said, the straying of the plaintiff's cattle upon the defendant's land did not involve the violation of any legal duty upon the part of the defendant * * *." In another trespass action, Schreiner v. Deep Creek Stock Ass'n, 68 Mont. 104, 109, 112, 217 P. 663, 665, this court further explained the doctrine of the open range: "This state has long been a public range state wherein livestock of private ownership have been and now are permitted by license of the government to graze without hinderance or restriction on the open, unoccupied, public domain. Such stock are said `to be running on the range.' "`The defendants were under no duty to herd, or keep in herd, or under herd, their cattle or any of them. In Montana and in other states, where, as here, the land owners must, by lawful inclosure, "fence out" the livestock of others, it is too plain for argument that the cattle owner may at his own pleasure either keep his cattle on his own land or turn them out with freedom to range and roam wheresoever they may desire * * *.'" In Thompson v. Mattuschek, 134 Mont. 500, 506, 333 P.2d 1022, 1025, we commented as follows: "Under common law, livestock must be fenced in, but under range law, they must be fenced out. R.C.M. 1947, § 46-1409. They may not be herded in damage *305 of a neighbor, Herrin v. Sieben, 46 Mont. 226, 127 P. 323, and they wander at their own and their owner's risk of loss. Beinhorn v. Griswold, [supra]. But, in range country they may wander. They are not closed in." In Montgomery v. Gehring, 145 Mont. 278, 283, 400 P.2d 403, 406 (1965) this court again recognized the fact that Montana remains an open range state and commented in this manner: "One releasing his livestock onto lands where he has a right to do so is under no duty to restrain them from entering another's unenclosed land. Such livestock owner is not responsible for damages occasioned by the entry of his livestock on such unfenced land through following their natural instincts. The exception to this, of course, is willful or intentional herding or driving of livestock onto another's unfenced land or placing them so near that trespass is bound to occur. Such is not the law in all jurisdictions, but it has been the law for a long time in Montana." Thus, in open range country, the owner of livestock or one upon whose land such livestock is being pastured, has no duty to prevent the livestock from wandering. Since he has no duty to prevent such wandering, he cannot be said to be negligent if the livestock do wander even if such wandering takes them onto a highway right of way which runs through the open range. The testimony at the trial did not show that there was any willful act or intention on the part of the defendant to drive the horse onto the highway right of way. For an example of what has been considered a negligent act by an owner of premises see Hopkins v. Ravalli County Electric Coop, Inc., 144 Mont. 161, 395 P.2d 106. The plaintiff's case failed to establish any duty on the part of the defendant which the defendant had violated. The district court erred in not granting defendant's motion for a directed verdict. The judgment appealed from is reversed with instructions to grant defendant's motion for a directed verdict and to enter judgment accordingly. MR. JUSTICES ADAIR, DOYLE and CASTLES concur. MR. JUSTICE JOHN C. HARRISON specially concurring: It must be realized that Montana is and will remain for some time an open range oriented state. However, it must also be realized that being so oriented or not, we live in the last third of the twentieth century. This is a century which has brought us mixed blessings of automation and technology. As much as we may dislike it, there are certain technological changes which Montana can not react to, as a Brigadoon. Automobile travel is one of these. This concurrence is meant to be limited to the facts of this case. The testimony in this case covers nearly 300 pages. The evidence is conflicting and contradictory as to the propensities of horses, the care of the horses by the appellants considering these horses escaped and went several miles when the appellant employed about twelve range riders to watch them, the adequacy of the fences, the adequacy of the river as a barrier and other issues of fact. While I must agree with the majority I feel deeply that this is a legislative matter that warrants the utmost consideration by our Legislature. It is not this court's function to make law, rather it is to interpret the law, but where, as here, we must follow the law given us I feel that justice requires that we point out that human needs should be given consideration. The national government, in its interstate highway program, has fenced off the highways to protect life and limb, and we in this state are spending considerable sums in accident prevention. Aware as I am of the economic problems of our agriculture and livestock industry, I feel we as a people must soon approach legislatively this most humane need to protect our motorist.

May 5, 1967

69378758-455d-4f65-b42e-bc119686b754

Morigeau v. State

423 P.2d 60

11268

Montana

Montana Supreme Court

423 P.2d 60 (1967) Adrian Jaycean MORIGEAU, Petitioner, v. The STATE of Montana, and Ed Ellsworth, Jr., Warden of the State Penitentiary of the State of Montana, Respondents. No. 11268. Supreme Court of Montana. Submitted January 6, 1967. Decided January 25, 1967. William F. Crowley, Missoula, for petitioner. *61 Forrest H. Anderson, Atty. Gen., Charles Joslyn, Asst. Atty. Gen. (argued), Helena, Marshall Candee, County Atty., Libby, for respondents. JAMES T. HARRISON, Chief Justice. This is an original proceeding wherein petitioner seeks a writ of review or other appropriate post-conviction remedy. Following an ex parte hearing an alternative order to show cause was issued by this court on December 20, 1966. An answer and return was filed by the attorney general's office on behalf of the respondents. The matter was argued before this court on January 6, 1967. The record discloses that on January 29, 1965, petitioner and two other defendants were jointly charged in a two count information with the crimes of first degree burglary and grand larceny. On February 11, 1965, petitioner entered a plea of guilty to each of the two counts in the information and was sentenced to two years in the state prison on each count, the sentences to run consecutively. All but the first thirty days of the consecutive sentences was suspended. The suspended sentences were revoked by the district court on April 1, 1966, and the petitioner was taken to the state prison to serve the remainder of his sentences. Prior to the filing of this petition in this court, petitioner filed a petition in the district court in which he had been sentenced. The dstrict court held a hearing at which petitioner was represented by his present counsel and the respondents were represented by the local county attorney. At that hearing the attorneys for the respective parties made an open court stipulation that the facts to be used by the district court in rendering its decision would consist of the testimony of petitioner Morigeau and his co-defendants, Larry John Britton and Ronald Dean Shelmerdine at their pre-sentence hearing. In denying the relief sought by the petition, the district court made findings of fact, conclusions of law, and order and judgment, which are exhibits to petitioner's petition in this court. Again in this court neither petitioner nor respondents argue with the facts as found by the district court, but rather the parties put a different interpretaion on their results and legal ramifications. Therefore, we will set forth the facts as found by the district court. "(T)he facts concerning the two offenses with which petitioner was charged in the Information and to which he pleaded guilty herein and was subsequently sentenced were as follows: Petitioner, Ronald Dean Shelmerdine and Larry John Britton were drinking coffee in the Ten Pin Cafe in Libby, Lincoln County, Montana, at about 1:00 a.m. on January 29, 1965, when they decided to break into the Smith Beer Parlor in Libby. They discussed this for an undetermined period of time and thereupon petitioner and Ronald Dean Shelmerdine left the Ten Pin Cafe, looked over the windows at the Smith Beer Parlor, and petitioner walked around to the back of the building and broke a window. Petitioner and said Shelmerdine returned to the Ten Pin Cafe and drank another cup of coffee for 15 or 20 minutes. Thereupon petitioner, Shelmerdine, and Britton left the cafe, got into Britton's car and drove around the streets of Libby for one-half hour to one hour trying to locate the whereabouts of the city policeman on duty. After seeing him park the police car, petitioner, Shelmerdine and Britton drove to Smith's Beer Parlor and Shelmerdine and petitioner got out with Britton driving his car several blocks away in the general area of a highway overpass below which was a baseball park. Shelmerdine lifted petitioner up and petitioner went through the window that had been previously broken and after entering the building, went around to the back door, opened it and Shelmerdine entered. Petitioner and Shelmerdine then entered the barroom and looked around for about five minutes. After this time had elapsed they opened a door, saw about 50 cases of beer therein and carried 19 cases of beer and removed the 19 cases of beer from the premises stacking it *62 in the rear thereof. Thereupon petitioner and Shelmerdine walked to the baseball park where Britton's car was parked, the three returned to the alley behind Smith's Beer Parlor and loaded the 19 cases of beer into Britton's car and drove off." Petitioner's position in this proceeding can be summarized in this manner: (1) Section 94-4701, R.C.M. 1947, provides in part: "An act or omission which is made punishable in different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one * * *." (2) A man can be charged and convicted of more than one offense arising out of a single transaction, but he can, under section 94-4701, be punished for only one of them. (3) The offense committed in this case was a single unbroken series of acts having as their object only one result, the theft of the cases of beer. (4) Petitioner received two consecutive sentences for one act. (5) Therefore, the sentences imposed upon him were in violation of section 94-4701, and the second of the two consecutive sentences assessed against him is illegal and void. Petitioner's legal argument, as developed in his brief, is based upon the contention that his criminal activities on the morning of January 29, 1965, were a single act. We are unable to agree with this contention. As early as Territory v. Willard, 8 Mont. 328, 331, 332, 21 P. 301, 302, this court noted the distinctions between burglary and larceny, stating: "It is plain from the definitions that they [burglary and larceny] are two distinct crimes, and the larceny is not necessarily included in the burglary. In order to sustain the indictment for burglary it would only be essential to prove the felonious entry with the intent, while to convict on the charge of larceny, it becomes necessary to show the taking, for the entry may have been without any felonious intent. Burglary, on the other hand, may, as it frequently does, exist without actual theft, and larceny may be committed without burglary. Therefore, in making out the case of larceny, the prosecution need not have shown any burglarious intent or entering; it became only necessary to prove the usual elements of theft, that is, the venue, the identity of the accused, the felonious taking, the intent to convert to the taker's use, the property stolen, its value, the ownership, and that the offense occurred within the time limited for such prosecutions * * *." The various decisions of this court since the Willard case, supra, have not materially departed from this explanation of the two crimes. The manner in which the petitioner and his companions committed the burglary and larceny divide the crimes neatly. There is a distinct time interval between each crime. Either crime can be proven without the slightest reference to the other crime. There are two distinct acts by which two distinct crimes were committed. The vital element of petitioner's argument, that is, the single act contention, is not supported by the facts. Therefore, we are not required to interpret the meaning of section 94-4701. We make this further comment concerning petitioner's sentences for his crimes. For the crime of first degree burglary alone, the petitioner could have received a sentence of 15 years. However, petitioner's sentences for both crimes, as previously noted, totaled only four years. The petitioner was given an additional leniency by the district court by reason of the suspension of all but the first thirty days of the sentences. The manner in which the district court treated the petitioner was fair and lenient. The writ is denied. ADAIR, DOYLE, CASTLES and JOHN C. HARRISON, JJ., concur.

January 25, 1967

145a9041-9402-4096-9dac-b46ccf468d92

State v. Lukus

423 P.2d 49

11161

Montana

Montana Supreme Court

423 P.2d 49 (1967) The STATE of Montana, Plaintiff and Respondent, v. John LUKUS, Defendant and Appellant. No. 11161. Supreme Court of Montana. Submitted December 12, 1966. Decided January 20, 1967. *50 Howard C. Foreman (argued), Billings, for appellant. Forrest H. Anderson, Atty. Gen., James R. Beck, Asst. Atty. Gen (argued), Helena, John L. *51 Adams, Jr., (argued), County Atty., Billings, for respondent. DOYLE, Justice. Defendant appeals from a conviction by a jury of the crime of assault in the first degree and from denial of his motion for a new trial by the District Court of Yellowstone County. Sometime between 12:30 and 1:00 a.m., January 9, 1966, the manager of defendant's apartment dwelling received complaint about a disturbance in defendant's apartment. The manager responded by twice going to defendant's door and asking him to be quiet. These requests were met with cursing and increased noise and a statement by the defendant that he would do as he pleased. The manager then informed the defendant that he would call the police. When the disturbance continued the manager went to the residence of the owner of the apartment building who called the police. Officers Pace and Bracken of the Billings Police Department responded to the call and were directed by the manager to the defendant's apartment. When the officers knocked on the defendant's door for the first time there was no disturbance in progress. They knocked several more times and announced that they were police officers and had come to investigate a complaint of a disturbance. The defendant made no response whatever and did not open his door as requested. The officers made no mention of an intention to arrest the defendant. No complaint had been signed against the defendant and no warrant had been issued for his arrest. The defendant testified that he had asked the officers to slide their identification cards under the door but the two officers and the man living in the adjacent apartment testified that there was no sound from behind the defendant's closed apartment door. The officers asked the manager if he had a key to the defendant's door. Several keys were produced and tried. Officer Bracken testified that he was the one who used the correct key and opened the defendant's door. After being unlocked the door swung free until it hit the end of the chain of the night latch leaving an opening of about four inches. After the door was opened there was a response from inside the defendant's apartment. The testimony of the two officers and the man living in the adjacent apartment is not clear as to the exact words used. The essence of their testimony is that the defendant was heard cursing generally and twice repeating that he would "get" or "kill" those outside the door. The defendant denied the threats and testified that he warned the officers to get away from the front of the door. The officers remained where they had been, in front of the defendant's door, fully uniformed and visible in the lighted hallway. The light that had been on behind the defendant's partially open door went out and the officers attempted to investigate the inside of the apartment by shining their flashlights through the four-inch opening. As they investigated in this manner they continued to state that they were police officers and desired to talk with the defendant. Suddenly a shot was fired through the door which hit Officer Pace in the cheek just below his left eye. The first shot was followed by a pause and a volley of four more shots fired in regular succession. The officers moved to safety and help was summoned through the patrol car radio. Help came in the form of several additional policemen one of whom took Officer Pace to a local hospital for medical attention. After an attempt to kick in defendant's door failed one officer fired three shots and another officer fired a single shot into the upper right hand corner of the door. After the fourth shot the defendant responded to the officers' command to come out with his hands raised. Defendant was *52 arrested, handcuffed and bodily dragged and carried to a police car because he refused to go under his own power. After the defendant was arrested and removed to police headquarters an investigation of the premises was conducted by members of the Billings Police Department. A 22 caliber pistol with five spent cartridges and one live round was found. The apartment also contained several empty beer and liquor containers. Officer Pace's injuries were amazingly minor. The bullet passed completely through his flesh while only grazing his cheek bone. He was back on duty as a policeman after a week's convalescence. There was ample evidence at the trial that the defendant had drunk a considerable quantity of beer and liquor just prior to the incident in which Officer Pace was shot. The defendant gave a statement and testified that he had been drinking earlier in his apartment with his mother and that he had taken her home in a cab, had some more to drink in a bar and returned home and continued to drink. The arresting officers testified that they could tell that the defendant had been drinking from his actions and because the defendant smelled of liquor. The information charging the defendant with first degree assault was filed January 10, 1966. Defendant asked for and received court-appointed counsel. After a three-day trial, the jury returned a verdict of guilty as charged by the information. Defendant was sentenced to a term of ten years in the state penitentiary. A motion for a new trial by defendant was denied and this appeal was then perfected. In addition to denying the charge against him generally, defendant asserted the defense that "his home was his castle" and that he was therefore privileged to use a gun in the manner charged by the information to protect against a trespass. Defendant also relied upon section 94-119, subd. (1), R.C.M. 1947, by maintaining that he was too intoxicated to have been able to form the requisite specific intent to commit the crime of first degree assault. Defendant specifies error because the court did not instruct the jury, as a matter of law, that prior to the shooting, officers Pace and Bracken were acting illegally because they were not in the process of making a lawful arrest at the time they opened defendant's door. Defendant further contends that the court should have instructed the jury that the unlawful acts of the policemen constituted a trespass which the defendant was entitled to forcibly resist. Section 94-6003, R.C.M. 1947, provides that a peace officer may make an arrest only in obedience to a warrant or without a warrant: "(1) For a public offense committed or attempted in his presence; (2) When a person arrested has committed a felony, although not in his presence; (3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it; (4) on a charge made, upon a reasonable cause, of the commission of a felony by the party arrested; (5) At night when there is reasonable cause to believe that he has committed a felony." The jury was instructed according to the foregoing statute. However, it would be difficult to find any evidence that would support a finding of an arrest attempted prior to the shooting based on this statute. When the officers arrived no disturbance was in progress. They had no warrant for the arrest of the defendant and they at no time informed the defendant that they intended to arrest him as would be required by section 94-6008, R.C.M. 1947. It does not follow, however, that the act of opening defendant's door was unlawful and a trespass. The law's traditional high regard for the security of persons, within the confines of their dwelling places, is the unquestioned source and truth of the saying that "a man's home is his castle." This court has afforded its full protection to the security of property and dwelling places. See State v. Nickerson, 126 Mont. 157, 247 P.2d 188. But at times it must be recognized that this protection is not boundless. The technical rules of trespass are literally replete with exceptions which are usually *53 stated as "privileges." A large number of the commonly accepted "privileges to enter land" are set forth in topic 2 of chapter 8, Restatement of Torts 2d, §§ 191-211. The evidence warrants the assumption for the purposes of this opinion that the officers did not open the defendant's door pursuant to an attempt to arrest him. Therefore, the question is how far can an officer of the law probe into the dwelling of another while investigating a complaint in the course of his official duties without committing an unlawful act? A somewhat similar situation is discussed in People v. Roberts, 47 Cal. 2d 374, 303 P.2d 721, where police officers went to the door of an apartment and received no response. While standing there waiting the officers heard what they thought were moans and groans. They entered and found no one. While holding the entry to be unlawful the court said, "Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose." In the instant case officers Pace and Bracken were presented with several reports of a great disturbance apparently caused by a single man. But as they attempted to investigate they received no response from the inside of the apartment which had been reported to contain a cursing, raging man. Under such circumstances the officers may very well have been prompted by the belief that something serious had happened to the occupant of the apartment and that he might have been in need of help. For this reason it cannot be held, as a matter of law, that the two officers were not privileged to open the defendant's door. A jury could have found that the slight opening of the door by police officers for the purpose of determining what had happened to cause a raging man to fall silent was privileged as an act of necessity and within their official duties. It is necessary to add the caveat that the privilege to enter as a matter of necessity is a limited privilege. The facts of this case place it near the fringe of the privilege. Police officers are in all cases required to have reasonable grounds to believe that a necessity exists before they are entitled to rely on a privileged entry. Even if it were conceded that the officers were trespassing when the defendant discharged his firearm the defendant may still be guilty of first degree assault if he exceeded his privilege to resist. A citizen of this state is authorized to use force by two statutes. Section 94-5002, R.C.M. 1947, provides: "Resistance sufficient to prevent the offense may be made by the party about to be injured "(1) To prevent an offense against his person, or his family, or some member thereof; "(2) To prevent an illegal attempt by force to take or injure property in his lawful possession." Section 94-605, R.C.M. 1947, provides that: "To use or attempt or offer to use force or violence upon or towards the person of another is not unlawful in the following cases: * * * "(3) When committed either by the party about to be injured, or by another person in his aid or defense, in preventing or attempting to prevent an offense against his person, or a trespass or other unlawful interference with real or personal property in his possession, if the force or violence used is not more than sufficient to prevent such offense." Both statutes authorize the use of force only to the extent to which it is necessary to prevent the offense. Therefore the question presented is whether the defendant exceeded the force necessary to prevent the continuation of a trespass or an offense against his person when he fired his pistol into the door. State v. Daw, 99 Mont. 232, 43 P.2d 240, it was held that a person may act upon appearances to meet force with force and to even slay his assailant and it does not matter that he was *54 not in real peril if under the circumstances he acted reasonably. The jury was properly instructed on the rule just restated from the Daw case, supra, and it must be presumed that the jury did consider all of the evidence relevant to the circumstances as they appeared to the defendant just prior to the time he discharged his firearm. The evidence that the jury might have considered with respect to the extent of the force used is more than sufficient to support a finding that the force used by the defendant was excessive. On two occasions the defendant was asked to cease the disturbance he was making. He was then told that the police would be called. Several minutes passed and the defendant then heard men knocking at his door claiming to be police officers and asking to talk with the defendant. The defendant's door was not forced open nor was there any disturbance which might have justified the conclusion that peril was only moments away. On the contrary, the record is consistent in its showing that the door was opened with a key and then only a few inches to the point where it was held by the chain of the night latch. No attempt was made to force the door beyond the limits of this chain and it remained in place until the defendant opened the door himself. While the door was in this partially opened position the defendant was not menaced but was again assured that the persons on the other side were police officers. The testimony of the police was that during the entire period the defendant refused to communicate and therefore did not attempt to verify their identity. Defendant's only discernible responses were cursing and five shots from a 22 caliber revolver. The jury was fully instructed on defendant's right to use force under section 94-5002, R.C.M. 1947, and therefore defendant's offered instruction number 8 would have added nothing. It is not error for a court to refuse an offered instruction when its legal theory is covered by one or more of the instructions given and the substantial rights of the defendant are thereby protected. State v. Lagge, 143 Mont. 289, 388 P.2d 792. Defendant also contends that the court should not have given instruction 17 because it deprives the defendant of his right to require the State to prove the element of specific intent. Instruction 17 was given as follows: "You are instructed that in every crime or public offense there must be a union or joint operation of act and intent. The intent or intention is a state of mind and every sane person is presumed to intend the natural and probable consequences of his act, and such intent may be inferred from the acts of the person charged with crime as well as by his words or declarations. It is not necessary to a conviction that an express intention be proved. It may be manifest by circumstances connected with perpetration of the offense without any positive testimony as to express intent." The objection to this instruction centers around the last two sentences and particularly the term "express intent." Defendant interprets the use of "express intent" here to mean the intention to commit the crime charged. This interpretation is difficult to accept in the abstract and even more difficult when taken in context of the entire instruction. Webster's Third New International Dictionary's first definition of the word "express" is, "directly and distinctly stated or expressed rather than implied or left to inference." Where the instruction states that it is not necessary that an express intent be proven it is merely making a negative restatement of the preceding sentence which states that intent may be inferred from the acts of a person. It does not seem likely that this would be confusing or misleading to a jury which had the benefit of the whole instruction. Interpreted in this manner, instruction 17 is a correct statement of the law as provided in section 94-118, R.C.M. 1947. Defendant also contends that the evidence is insufficient to sustain a conviction of first degree assault because the record clearly shows that the defendant was in an *55 intoxicated condition. Defendant concludes that under the authority of section 94-119, subd. (1), R.C.M. 1947, he could only be convicted of some lesser degree of assault if any. Section 94-119, subd. (1), provides: "No act committed by a person while in a state of voluntary intoxication is less criminal by his being in said condition. But, whenever the actual existence of any particular purpose, motive, or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." Under this provision a jury might find that the accused was so intoxicated that he was unable to form a specific criminal intent as distinguished from a general criminal intent. State v. Palen, 119 Mont. 600, 178 P.2d 862; Alden v. State of Montana, D.C., 234 F. Supp. 661. Section 94-119, subd. (1), is applicable to this case because the definition of first degree assault contained in section 94-601, R.C.M. 1947, requires the specific intent to kill a human being or to commit a felony on the person or property of the one assaulted. The court, in its instruction number 18, submitted section 94-119, subd. (1) to the jury verbatim. Therefore the only question that remains with respect to the defendant's alleged intoxication is whether the jury had sufficient credible evidence to support a finding that the defendant was able to form the specific intent to commit the crime of first degree assault. The defendant is now placed in the curious position of claiming sufficient mental competence to execute a plan to forcibly protect his dwelling and himself from a trespass on one hand and on the other, that he was so intoxicated as to be unable to form the intent requisite to first degree assault. The record contains considerable evidence of activity by the defendant which the jury might have used to determine the degree of his intoxication. When the door was opened to the limit of the night latch the defendant turned off his lights inside the apartment and by his own testimony reached into a near-by drawer to get his revolver and prepare it for action. In contradiction to the defendant's testimony that he aimed low, the photographs show that his shots struck the door near the level of the doorknob. Later the defendant was apparently able to conclude that he was overpowered by the police fire power and that he should surrender. He did surrender by walking out of his apartment under his own power with his hands in the air. The officer who took the defendant's statement at police headquarters immediately after the defendant was arrested testified that the defendant had no difficulty recounting the recent events. The statement was entered into evidence and shows considerable detail. Here, as in State v. Reagin, 64 Mont. 481, 210 P. 86, where the jury has been properly instructed and there is sufficient credible evidence to support its finding, the question of the relationship of voluntary intoxication to specific intent will not be reconsidered upon appeal. In passing it may be worthwhile to observe that State v. Quinlan, 126 Mont. 52, 244 P.2d 1058, cited by the defendant in support of his contention that he was so intoxicated as to be unable to form the specific intent necessary to the crime of first degree assault is not persuasive. In the first place, State v. Quinlan, supra, probably states a rule of criminal responsibility which is on the very fringe of the operation of statute and may be reviewed in a proper case. In the second place, the Quinlan case is not in point here because it is based on section 94-201, subd. (5) while this appeal is concerned with section 94-119, subd. (1). The defendant's contentions that there was a conspiracy to violate his civil rights and that he was subjected to an illegal search and seizure are without merit. A discussion of these contentions would not *56 serve to add any substance to what has already been said herein. Finding no reversible error the conviction is affirmed. JAMES T. HARRISON, C. J., and ADAIR, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

January 20, 1967

fc3e3184-4d3e-4106-90d5-591286dbc105

FOSTER v KOVICH

N/A

82-450

Montana

Montana Supreme Court

No. 82-450 IN THE SUPREPG COURT OF THE STATE OF MONTANA 1983 DAVID E. FOSTER, Plaintiff and Appellant, HELEN KOVICB, Election Administrator, County of Lewis & Clark, State of Montana, Defendant and Respondent. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Mark P. Sullivan, Judge presising. COUNSEL OF RECORD: For Appellant: Cannon & Sheehy; Edmund F. Sheehy, Jr. and Ross Cannon argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Judy Browning argued, Asst. Atty. General, Helena Mike McGrath, County Attorney, Helena, Montana Submitted: June 3, 1983 Decided: December 12, 1983 Filed: D t G i d 1983 Clerk Mr. Justj.ce Daniel 3 . Shea delivered the Opinion of the Court. Plaintiff, David E. Foster, the mayor of East Helena, appeals from summary judgment entered against him in Lewis and Clark County District Court. The trial court dissolved the temporary injunction prohibiting the recall election and ordered that the election take place. The trial court then suspended entry of the order pending the outcome of this appeal. Plaintiff presents two issues. First, he argues that the allegations in the recall petition were legally insufficient to constitute grounds for recall under section 2-1.6-603(3), MCA, of the Montana Recall Act. We agree with plaintiff that under the Montana Recall Act, the legal sufficiency of allegations in a recall petition is a judicial as opposed to a politi.ca1 auestion, and is to be decided by the District Court. Second, he argues that the Montana Recall Act, section 2-16-601 et seq., MCA, is unconstitutional because it delegates legislative power to the election administrator to determine the sufficiency of the petition as to form. We reverse the trial court and hold that the allegations in the recall petition were insufficient as a matter of law to constitute grounds for recall and direct the trial court to enter an order enjoining the election administrator from authorizing the election. We do not reach the constitutional issue because we find the issue regarding the petition dispositive. The recall petition was based on three of the five alternative grounds for recall of an elected public official specified in section 2-16-603 (3) , MCA, of the Montana Recall Act. First, it was alleged that the mayor was guilty of official- misconduct because he demoted the police chief without cause as required by a city ordinance. Second, the petition alleged that the mayor violated his oath of office by failing to follow the prescribed order of business for four city cou~cil meetings in January and February 1982. Third, the petition alleged that the mayor was incompetent to hold office because he failed to conduct an orderly council meeting on February 4, 1982, and used vulgar language while conducting that meeting. The first recall petition was, on the advice of the county attorney, rejected because it was wrongly addressed and because the general statement of reasons for recall exceeded the 200-word limit imposed by section 2-16-616, MCA. Petitioner revised the general sta-tement as required and properly addressed the second petition to the Clerk and Recorder for Lewis and Clark County. The second petition was, on the advice of the county attorney, accepted as sufficient to allow a recall election if the requisite number of signatures were obtained. Invoking a remedy provided for in the Recall. Act, the mayor then petitioned the trial court asking that the recall petition be held invalid. The mayor contended that the reasons for recall cited bv the petition were not adequately specific and insufficient to meet any definition of the grounds for recall specified in section 2-16-603(3), MCA. The mayor also contended that the Montana Recall Act unconstitutionally delegates legislative power to the county election administrator to determine the sufficiency of the recall petition as to form. The trial court rejected out of hand the contention that the Montana Recall Act was an unconstitutional delegation of power to the election administrator. In rejecting the claim that the charges in the petition were not sufficiently specific and definite to allow the mayor to respond and defend himself before the people, the trial court relied on authority from the states of Washington and Michigan. This authority, however, is inapplicable to the recall provision in this state because the constitutional and statutory grounds for recall in Michigan and Washington are substantially dissimilar to the grounds for recall specified in section 2-16-603 (3) of the Montana Recall Act. Michigan constitutional and statutory law require only that the recall petition ". . . state clear1.y . . ." the reasons for recall. However, determination of the sufficiency of the grounds stated for recall is left to the Michigan electorate. It is not a judicial determination as in Montana. Further, Michigan 1-aw does not limit the grounds for recall to specific constitutional or statutory provisions but Montana does. See, section 2-16-603(3) of the Recall Act. Therefore, the trial court's reliance on the Michigan cases of Molitor v. Miller (Mich. 19801, 301 N.W.2d 532, and Amberg v. Walsh (Mich. 1949), 38 N.W.2d 304 was misplaced. The trial court also improperly relied on the Washington case of Bocek v. Rayley (1973) , 81 Wash. 2d 831, 505 P.2d 814. In Washington, an elective public officer may be recalled for any zcts of malfeasance or misfeasance in office, or for a violation of the oath of office. Art. 1, § 33, (Amendment 8) Wash. Const.; RCW S 29.82.010. However, malfeasance or misfeasance is not a ground for recall in Montana. In 1979, the Montana Recall Act was amended by removing malfeasance and misfeasance, and inserting official misconduct as a ground for recall. We presume that the legislature , in adopting an amendment to a statut-e , intended to make some change in existing 1-aw. Montana Milk Control Board v . Community Creamery Co. (1961), 139 Mont. 523, 366 P.2d 151. That presumption is especially applicable where, as here, the amendment materially changes the statutory provisions. We believe the legislature intended to change the law regarding grounds for recall by substituting official misconduct for malfeasance or misfeasance. It follows that malfeasance and misfeasance cannot be equated to official misconduct under the Montana Recall Act. The only similarity between the Washington and Montana recall provisions is that a public officer may be recalled for violating an oath of office. But a careful reading of Bocek indicates that even reliance by the trial court on the violation of oath of office similarity was misplaced. Although in Rocek, the recall petition alleged violations of oath of office, the Washington Supreme Court did not hold that any of the acts alleged were such a violation. Rather, the Washington court analyzed the allegations only in light of misfeasance and malfeasance, grounds that are not a statutory basis for recall in Montana. We proceed to a discussion of each charge alleged in the recall petition. The first charge, one that the mavor "misconducted himself in office by removing" a police officer from his position, requires a discussion of the statutory ground for recall, "official misconduct." Although not specified in the recall petition, it appears that the petitioners, in alleging the removal of the police officer as a ground of recall, intended to charge the mayor with "official misconduct" as specified in section 2-16-603 (3) of the Recall Act. We determine, however, that the allegations here cannot fall within the meaning of "official misconduct" as intended by the legislature, for the legislature intended "official misconduct" to be defined only as it is defined in the criminal code under section 45-7-401, MCA . Official misconduct is set forth in section 2-16-603(3) as a ground of recall. This statute provides in pertinent part: "Officers subject to recall -- g - - - . rounds for .- recall. (1) ~ v e r ~ p e r s o n holding a public Efice of the state or any of its political subdivisions, either by election or appointment, is subject to recall from such office. "(3) Physical or mental lack of fitness, incompetence, violation of his oath of office, official misconduct, or conviction of a felony offense enumerated in Title 45 is the only basis for recall. No person may be recalled for performing a mandatory duty of the office he holds or for not performing any act that, if performed, would subject him to prosecution for official misconduct." The second sentence of subsection 2-16-603 (3) , MCA, expressly states that "[nlo person may be recalled . . . for not performing any act that, if performed, would subject him to prosecution for official misconduct." (Emphasis added.) V ? e are convinced by this statutory language and by the legislative history of section 2-16-603, MCA, that official misconduct is to be applied for purposes of recall as it is defined in the criminal code under section 45-7-401, MCA. That statute provides in relevant part: "Of ficia.1 misconduct. (1) A public servant commits the offense of official misconduct when in his official capacity he commits any of the followi.ng acts: "la) purposely or negligently fails to perform any mandatory duty as required by law or by a court of competent jurisdiction; " (bj knowingly performs an act in his official capacity which he knows is forbidden by law; " (c) with the purpose to obtain advantage for himself or another, performs an act in excess of his lawful authority; " ( d ) solicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law; or " (e) knowingly conducts a meeting of a public agency in violation of 2-3-203." A publ-ic servant is not guilty of official misconduct and subject to recall unless he has committed one or more of the acts specified in section 45-7-401, MCA. As we discuss below, removal or demotion of a police officer without cause does not constitute grounds upon which to seek recall of the mayor. The petition alleges that the "removal" and "demotion" of the police officer viol-ated a city ordinance relating to the powers of the mayor. That ordinance, section 1-6-2, provides in pertinent part: "Powers. The Mayor shall have the power: "B. To suspend and, with the consent of the council, to remove any nonelective officer, stating in the suspension or removal the cause therefor." Although not necessary to our decision, we note first the failure of the charge to specify what the mayor had done. The charge alleges that the mayor removed the police officer without cause but it does not specify the allegation, that is, whether the mayor failed to give a reason for the removal or whether a reason was given but that it was insufficient on which to base a removal. One facing a recall petition and possible election is entitled to more precision than given here. But more important insofar as a violation of the law is alleged, we determine that the city ordinance does not apply to an act of the mayor in demoting a police officer, which is the case here. The city ordinance requires cause to be stated only when a nonelective officer is suspended or removed, but here the police officer was demoted. We therefore conclude that the mayor did not violate the ordinance by demoting the police chief and his act could. not trigger a recall election based on an allegation of "official The second charge in the petition is that the mayor violated his oath of office by failing to follow the prescribed order of business specified in City Ordinance 1-5-3. The oath of office, required of all members of the 1egisla.ture and a.11 executive, ministerial and judicial officers, reads : "'I do solemnly swear (or affirm) that I will support, protect, and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God). ' No other oath, declaration, or test shall be required as a qualification for any office or public trust." Art. 111, § 7, Mont. Const.; section 2-16-211, MCA. A failure to follow a prescribed order of business is hardly a failure to "support, protect, and defend" the United States and Montana Constitutions. Therefore, the act on the part of the mayor must, to sufficiently constitute a ground for recall und-er section 2-16-603(3) of the Recall Act, be a failure to "discharge the duties of [his] office with fidelitv." The trial court relied on the Eli-chigan case of Molitor v. Miller, supra, to hold that a violation of a city ordinance is a violation of the oath of office. However, as stated previously, this case has no application to the Montana Recall Act, as the Michigan Constitution precludes the judiciary from determining the legal. sufficiency of allegations in a recall petition. In Michigan, that determination is left to the electorate. The petition bases the oath of office violation on City Ordinance I--5-3, which provides: "Order of Business: At the hour appointed for themeeting, the Council shall - be called - to order a the Mayor . . . Upon - the appearance of a quorum, the Council shall proceed - tobus-ness in the following -- order: "A. Reading, amending and a.pproving the minutes of the previous meeting. "B. Reports of officers. "C. Reports of standing committees. "D. Reports of special committees. "E. Presentation of petitions and communications. "F. New business. "G. Unfinished business. "H. Bills. "All. questions relating to the priority of business shall be decided without debate." (Emphasis added.) Assuming arguendo that a violation of this ordinance would constitute a ground for recall, the petition fails to specifically set forth what order of business was followed by the mayor and how that was in violation of the ordinance. The allegation is conclusory and indefinite. We recently held that the allegations in a recall petition must be definite a-nd specific so that the public officer charged is adequately apprised of the exact alleged wrongdoing so that he may answer the charges before the people. Steadman v. Halland (Mont. 1982), 641 P.2d 448, 39 St.Rep. 343. Further, by our reading of City Ordinance 1-5-3, the city council is equally responsible for conducting the business of the meetings in the prescribed order. The petition does not specify whether the city council objected at the time the mayor allegedly violated the ordinance. Nor does the petition otherwise set forth reasons why the mayor alone was responsible for the alleged deviation from the prescribed order of business. The second charge fails to meet the test of specificity and definiteness under Steadman, supra, and is legally insufficient to constitute a ground for recall under section 2-16-603(3) of the Recall Act. The third and final charge in the petition al-1-eged the mayor to be "incompetent to hold office" because he allegedly failed to conduct an orderly council meeting on February 4, 1.982, and because he used "vulgar language" while conducting that meeting. The charge neither specified how the meeting was disorderly nor set forth the words used that were allegedly "vulgar." While we hold that these allegations are conclusory and general. and therefore subject to the same attack under the rule of Steadman, supra, we hold also that the failure to hold an orderly council meeting and use of vulgar language, do not constitute grounds for recall under section 2-16-603(3) of the Recall Act. An assumption that the mayor used "vulgar language" at the city council meeting could. lead to a conclusion that he used poor taste, but use of such language does not establish that the mayor is ' " u n f i t ' ' or "unsuited" for the office. And further assuming that the mayor did not conduct an orderly council meeting on February 2, 1982, that fact does not justify a conclusion sufficient to invoke a recall election based on a charge that he was "incompetent to hold office." Assuming the meeting to have been disorderly, the petition is devoid of information that would tell why the meeting was disorderly, how or why the mayor was responsible for the lack of order, and how or why the failure to maintain order justified a recall election on the ground of incompetence. The legislature has made clear its intent to Limit the grounds for recall to specific instances of conduct. The Attorney General. observed in 38 Op. Att'y Gen. 139 (1979): "The [Recall] act was amended by the legislature in 1977 and 1979. The 1977 amendment repealed a provision of the original act which allowed recall for 'any reason causing the electorate dissatisfaction with a. pub1.i~ official . . . notwithstanding good faith attempts to perform the duties of his office.' [See former section 59-612(3) , R.C.M. 1974. I "The house and senate committee reports concerning the 1977 amendment reveal that portions of the Montana Recall Act as passed by the 1976 initiative were ambiguous and so broad as to conflict with existing law. Of major concern was the possibility an organized minority might cause a costly recall.. election merely to harass an official who was acting in a manner which was contrary to their wishes. " Some state constitutions or statutes provide very broad reca.11 provisions and vest in the electorate the power to determine whether the acts al-leged in the petition are grounds f o r r e c a l l . I n Montana, however, the Legislature has limited t h e grounds f o r r e c a l l and has given t h e D i s t r i c t Court t h e power t o determine t h e l e g a l sufficiency of t h e a l l e g a t i o n s i n t h e r e c a l l p e t i t i o n . The l e g a l sufficiencv of t h e a l l e g a t i o n s i s not l e f t t o t h e e l e c t o r a t e . Therefore, a p e t i t i o n may never reach t h e e l e c t o r a t e because it f a i l s t o specify a c t s l e g a l l y s u f f i c i e n t t o c o n s t i t u t e grounds f o r r e c a l l under s e c t i o n 2-16-603 (3) of t h e Recall Act. W e reverse t h e t r i a l court, hold t h a t t h e al-legations i n t h e p e t i t i o n a r e l e g a l l y i n s u f f i c i e n t t o c o n s t i t u t e grounds f o r r e c a l l , and d i r e c t t h e t r i a l c o u r t t o e n t e r an order enjoining t h e e l e c t i o n administrator from authorizing a r e c a l l e l e c t i o n . Reversed and remanded with d i r e c t i o n s . W e Concur: edi, 4 Chief J u s t i c e I J u s t i c e s . / District Judge, sitting for Mr. Justice John C. Sheehy

December 12, 1983

54a109c4-2c61-4acd-a6d2-80be75105698

BAGLEY v RISLEY

N/A

82-277

Montana

Montana Supreme Court

No. 82-277 IN THE SUPREME COURT OF THE STATE OF YONTAIJA 1983 PJAYNE L. BAGLEY, Petitioner and Respondent, -vs- HENRY RISLEY, Respondent and Appellant. APPEAL FROM: District Court of the Third Judicial District, In and for the County of Deer Lodge, The Honorable Robert J. Boyd, Judge presiding. COUNSEL OF RECORD: For Appellant: Nick A. Rotering, Dept. of Institutions, Helena, Montana For Respondent: Wayne L. Bagley, pro se, Deer Lodge, Montana Aurelio P. Nardi, St. Paul, Minnesota Submitted on Briefs: September 2, 1983 Decided: December 8, 1983 Filed: 3 : ' '983 Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Henry Risley, as warden of the Montana State Prison, appeals from an order of the District Court of the Third Judicial District, Powel-1 County, granting habeas corpus to prison inmate Wayne L. Bagley. We reverse. On April 3, 1970, the petitioner, Wayne L. Bagley, was convicted of burglary in Treasure County and sentenced to ten years in the Montana State Prison. He was released on parole in December 1971, but was subsequently returned to the Montana State Prison in November 1976 after beinq convicted of burglary in Stillwater County and given another ten year sentence. The Board of Pardons revoked the petitioner's parole on December 29, 1976. At this time, the Board of Pardons did not t a k ~ any action to forfeit any good time that the petitioner may have earned on parole because the Department of Institutions was under the impression that the existing law did not permit a parolee to earn good time during parole. On May 13, 1-982, the petitioner filed a petition for a writ of habeas corpus in the District Court contending that he was entitled to a credit for good time earned while he was on parole, and that the good time earned while he was on parole should be applied to reduce the discharge date of his second sentence, as the second sentence had been merged with the first sentence. The District Court found the petitioner's argument to be persuasive and after finding that the application of the petitioner's good time earned while he was on parole to the petitioner's second sentence, effectively discharged the petitioner's second sentence, ordered the petitioner released from custody. The issues before this Court are: 1) whether the petitioner was entitled to receive good time while on parole, and 2) whether such good time may properly be applied to reduce the petitioner's discharge date on the second sentence. Section 53-30-105(3), MCA, pertaining to good time allowances now reads: "A person may not earn good time under this section while he is on probation or parole." Before the 1981 amendments to section 53-30-105(3) read: "This section applies to all persons who are on prohation or parole or eligible to be placed on probation or parole. No person convicted and sentenced before April 1, 1-955, sha.11 have his good. time allowance reduced as a result of this section. " The prison administration believed that this section acted only as a savings clause applicable to inmates convicted prior to April 1, 1955. This belief was challenged. by two inmates in Crist v. Segna (Mont. 1981), 622 P.2d 1028, 38 St.Rep. 150, where this Court held that the plain meaning of section 53-30-105 is that parolees are entitled to good time while on parole. As the 1981 a-mendments were r,ot in effect at the time that the petitioner in this case was on parole, the Crist decision is applicable, and the petitioner is entitled to good time for the period he was on parole. The question now arises as to how the good time should he applied to the petitioner's sentences. At the hearing on the writ of habeas corpus before the District Court, the petitioner contended that because the second sentence was to be served concurrently with the first sentence, the discharge date of the first sentence was rendered meaningless and all good time should be applied to the discharge date of the second sentence. Section 95-3221, R.C.M. 1947, as applicable to the petitioner at the time of sentencing provided that: "Any prisoner who cornmi-ts a . crime while at large upon parole or conditional release, and who is convicted and sentenced therefor, shall serve such sentence concurrently with the terms under which he was released, unless otherwise ordered by the court in sentencing for the new offense." The statute directs that the petitioner1 s sentences run concurrently. The statute does not require that sentences be merged for the purposes of applying good time. Good time is given to inmates as a reward for good conduct. Stephens v. Conley (1914), 48 Mont. 352, 138 P. 189. As such, it is an incentive to the i.nmates to follow the rules and conditions set forth by the Department of Institutions and the prison administration. Therefore, the manner j . n which good time is credited must be consistent with the rationale behind qood - time . Here, the District Court found that if all of the good time earned by the petitioner while on parole, a total of 866 days, were applied to the petitioner's first sentence, that sentence would have been discharged 18 days into the second sentence. Suppose, then, that the petitioner had continued to abide by the conditions of his parole a short time longer; if he had, his first sentence wou1.d have been discharged before the second sentence had begun and he would not have been entitled to apply any of the good time he h a . d previously earned to the second sentence. Instea.d, the petitioner in this case willfully violated the conditions of his parole by committing a burglary; and despite this, he a.rgues that simply because his two sentences overlap, he should be allowed to app1.y his previously earned qood time to his second sentence. It would seem incongruous that the petitioner be allowed to benefit from his previous1.y earned good time where he commits a crime before fully serving his first sentence, and yet not be allowed the same benefit if the first sentence had been duly served and discharged while on parole. If the principle behind good time is to be followed, the petitioner's misconduct should not be rewarded by granting him the good time on his second sentence. We h o 1 . d that the good time earned by the petitioner while on parole on his first sentence is to be applied to his first sentence. Any good time the petitioner has earned whi1.e serving his second se~tence shall be applied to his second sentence. This Court recognizes that the application of the good time to the petitioner's first sentence will have no effect on the petitioner's ultimate discharge date. This is proper. The petitioner cannot draw on a penal checking account balance of 866 days of previously earned good time in order to make a downpayment against a crime not yet perpetrated. In accord, State v. Ouimette (R.I. 1977), 375 A.2d 209. The District Court is reversed and the case remanded for further proceedings consistent with this opinion. / Justice / We Concur:

December 8, 1983

8ee4e20b-95e6-47a4-836e-fd12b0000b4b

State v. District Court of Eighth Judicial District

423 P.2d 598

11274

Montana

Montana Supreme Court

423 P.2d 598 (1967) STATE of Montana ex rel. Lester C. LARSON, Petitioner, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF CASCADE, and the Honorable Paul G. Hatfield, Judge thereof, Defendants. No. 11274. Supreme Court of Montana. Submitted January 23, 1967. February 2, 1967. Hoyt &amp; Bottomly, Great Falls, for petitioner. *599 Jardine, Stevenson, Blewett &amp; Weaver, George McCabe, Great Falls, for defendants. JAMES T. HARRISON, Chief Justice. This is an original proceeding wherein petitioner seeks a writ of supervisory control or other appropriate writ. Following an ex parte hearing an order to show cause was issued by this Court on January 11, 1967. The matter was argued before this Court on January 23, 1967. Petitioner is Lester C. Larson, plaintiff in Civil Cause No. 66861 C, entitled Lester C. Larson v. North Central Life Insurance Company, and will be referred to as petitioner. The defendants in this proceeding are the district court of the Eighth Judicial District of the State of Montana, the Judge of Department C thereof, and they will be referred to as the district court, and the North Central Life Insurance Company, which will be referred to as North Central. The facts which give rise to this proceeding are these, Petitioner's complaint in Civil Cause No. 66861 C, briefly summarized, made the following allegations: In September of 1964, petitioner bought a used car from a car dealer. His method of paying for the car was the installment contract plan. This contract included a disability insurance policy with North Central as insurer. This disability insurance provided that in the event the petitioner should become disabled to the degree that he was unable to engage in any gainful occupation for which he was reasonably qualified by reason of his education, training and experience, resulting from an accident, the insurance purchased by petitioner and included in the installment contract would make the monthly installment payments. Petitioner suffered an industrial accident in April of 1965, and his leg was amputated below the knee as a result of this accident. Later the leg was re-amputated below the hip. Petitioner alleges that as a result of this accident and the ensuing operations he has been totally disabled from engaging in any gainful occupation for which he is reasonably qualified by reason of education, training or experience. North Central made some installment payments. Petitioner further alleges that North Central was late in making these payments as a result of which petitioner was threatened with having his car repossessed on several occasions. Petitioner then engaged attorneys to compel North Central to make the payments pursuant to the policy. Petitioner, through his attorneys, made several demands on North Central to make the required payments and offered to allow North Central to have a doctor of its own choice examine the petitioner in order to satisfy itself that petitioner was disabled within the meaning of the policy. North Central made no attempt to examine the petitioner and finally announced on August 16, 1966, that it would make no further payments under the terms of the insurance policy. Petitioner alleges he was then forced to borrow money to pay the installment contract as a result of North Central's refusal to make further payments. Petitioner further alleges in his complaint that the conduct of North Central in refusing to pay the installment payments was in violation of the laws of Montana and that it was oppressive, malicious and fraudulent to the petitioner. Finally, the petitioner prays for actual damages and for punitive or exemplary damages. North Central filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, which was denied, and a motion to strike portions of the complaint dealing with punitive damages. The district court granted the motion to strike stating in its order that it was of "the opinion that the case of Westfall v. Motors Insurance Corp., 140 Mont. 564, 374 P.2d 96, bars exemplary damages * * *." Since the district court granted the motion to strike on the authority of the *600 Westfall case, supra, we must examine the factual situation of that case in relation to the facts as alleged in the complaint in this case. In this case we are still at the pleading stage. Therefore, we will accept the allegations of petitioner's complaint as true, realizing that all the allegations are subject to proof through the regular trial procedures. Westfall had a claim against Motors Insurance Company for a loss related to a used car which he had recently purchased and wrecked. After some negotiations with the defendant's adjuster, Westfall signed a Damage Agreement and a Bill of Sale to his car. Westfall contended that the adjuster represented to him that after the conditional sales contract still owing on his car was paid off there would be "something" left over for Westfall. The only "something" which Westfall received was the unearned portion of the insurance premium. Westfall then asserted that the defendant's adjuster had made the representation fraudulently, knowing all the time that it was untrue. We held that exemplary damages were not proper in the case since the action was one arising out of contract. There were no allegations in the Westfall case, supra, that the alleged fraudulent representation was an unlawful act in violation of the insurance laws of Montana. Making reference to the Westfall case, supra, and to section 17-208, R.C.M. 1947, North Central takes the position that exemplary damages are not proper in any action arising out of a contract obligation. We note, however, that section 17-201 provides that "Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages." Therefore, if a party can state a claim which brings him under the provisions of section 17-201, he can also come within the provisions of section 17-208 and attempt to collect exemplary damages. In the instant case petitioner alleges that the manner in which North Central refused to make the installment payments had two results, not just one. First, he contends that it was a breach of a contractual obligation owed to him, and second, he contends that it was a violation of the insurance laws of Montana and that it was oppressive, malicious and fraudulent to him. Thus, this second contention or claim by petitioner distinguishes the instant case from the Westfall case, supra. North Central further contends that exemplary damages are not proper because "we still have a situation where the sole actual damages suffered by the plaintiff (petitioner) are not the result of any violation of statute, but were caused solely by reasons of the termination of payment on August 16, 1966 * * *." This is not a valid argument at the pleading stage of a trial. It may very well be that petitioner will not be able to prove the allegations of his complaint, but that is the purpose of the trial to determine the validity of the allegations. Petitioner contends that North Central has violated section 40-4011, R.C.M. 1947, which provides in part: "* * * Indemnities payable under this policy for any loss other than loss for which this policy provides any periodic payment, will be paid immediately upon receipt of due written proof of such loss. Subject to due written proof of loss, all accrued indemnities for loss for which this policy provides periodic payment will be paid * * * (insert period for payment which must not be less frequently than monthly) and any balance remaining unpaid upon the termination of liability will be paid immediately upon receipt of due written proof." Petitioner then notes that section 40-4034 makes violations of the chapter subject to the penalty imposed by section 40-2617, which provides for a fine or imprisonment in the county jail or both for violations. Thus, in the insurance contract we have a unique situation; that is, some acts may be both breaches of contract and violations of the laws of Montana. *601 The issue presented by the application for this writ is whether the Westfall case, supra, prevents the claim for exemplary damages on the basis of the unique facts alleged in petitioner's complaint. We hold that it does not. The Westfall case, supra, is in no manner contradictory to what we have stated here. The Westfall case, supra, remains the general rule that exemplary damages are not allowed in actions arising out of a breach of contract. Let the writ issue directing the district court to vacate its order granting the motion to strike and to enter an order denying the motion to strike. ADAIR, DOYLE, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

February 2, 1967

68a3b937-f2eb-481d-9b4b-9c214a883bf0

CYPRUS MINES CORP v MADISON COUNT

N/A

13524

Montana

Montana Supreme Court

No. 13524 IN THE S U P R E T I I E COURT OF THE STATE OF MONTANA 1977 CYPRUS MINES CORPORATION, a Corporation, Plaintiff and Respondent, MADISON COUNTY, a political subdivision of the State of Montana; ALICE FLAGER, County Treasurer of Madison County; and the DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Defendants and Appellants. Appeal from: District Court of the Fifth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellants: R . Bruce McGinnis argued, Helena, Montana For Respondent : Kline and Niklas, Helena, Montana John R. Kline argued, Helena, Montana Submitted: January 17, 1977 Decided : MAR "i137T Mr. Justice Gene B. Daly delivered the Opinion of the Court. The Department of Revenue of the State of Montana (De- partment) appeals from the judgment of the district court, Madison County. At issue is respondent's net proceeds of mines tax, a tax in lieu of "ad valorem" property tax on net proceeds of its mines. Pfizer v. Madison County, 161Mont. 261, 505 P.2d 399. The court, sitting without a jury, found plaintiff taxpayer was compelled to pay excess taxes when certain deductions on its net proceeds of mines statement were disallowed. The court ordered the treasurer of Madison County to refund the excess taxes. Plaintiff is Cyprus Mines Corporation, (Taxpayer), an international corporation which owns and operates the Yellowstone and Beaverhead Mines, talc mines located in Madison County; a storage facility and wash plant located at Alder, Montana; and a grinding mill located at Three Forks, Montana. Taxpayer operates these three Montana facilities through Cyprus Industrial Minerals Company, which also has operations in Nebraska, California, Texas, Maryland, South Caroline, Georgia, Tennessee, Nevada and Ghent, Belgium. Taxpayer mines talc at its Yellowstone and Beaverhead Mines. It transports the talc to its other facilities for processing by a or grinding/upgrading procedure known as beneficiation. The beneficiated talc is either sold or further milled to various fine sizes. Talc is used in the manufacture of paper, paint, ceramics, catalytic converters, spark plugs, vinyl flooring, rubber, plastics, cosmetics and pharmaceuticals. The< present action stems from Taxpayer's filing its 1974 net proceeds of mines statement. The department disallowed axp payer's deductions for net proceeds of mines tax and other taxes paid in 1973, marketing expenses, and cost of conversion into money. Taxpayer paid under protest that portion of the property tax relating to the disallowed deductions. It brought an action in the district court to recover $91,418.54 in purported excess taxes. The district court entered judgment for Taxpayer. The Department of Revenue appeals and presents two issues for review: 1. Whether Taxpayer is entitled to deduct net proceeds of mines taxes and other taxes paid on the Yellowstone and Beaverhead Mines in 1973, in determining its net proceeds of mines tax for 1974? 2. Whether Taxpayer is entitled to deduct marketing expenses and cost of conversion into money in computing its net proceeds of mines tax when the expenses are incurred after the beneficiation stage or are not directly related to the cost of extracting talc? Taxpayer contends the Department's first issue should be resolved in Taxpayer's behalf since it has consistently deducted taxes as a miscellaneous deduction in determining the net proceeds of its mines. Further, Taxpayer argues taxes are expenses actually required and necessary in mining and should be a deductdble item as there is no specific legislative provision characterizing taxes as a nondeductible item. A general rule of taxation is that an item may serve as a deduction only when the legislature specifically establishes the deduction. Anaconda Copper Mining Co. v. Junod, 71 Mont. 132, 227 P. 1001. A revenue statute allowing a deduction should be con- strued with specificity, as opposed to the rule of liberal construc- tion which generally applies to revenue laws. State ex Yel. Whitlock v. State Board of Equalization, 1 0 0 Mont. 72, 45 P.2d 684. - 3 - Title 84, Chapter 54, Mines-General Property and Net Proceeds Tax, R.C.M. 1947, section 84-5403 sets forth those items which the taxpayer may deduct from the gross yield of a mine in arriving at the net proceeds upon which the tax is calculated. There is no provision in section 84-5403 which would characterize taxes as a deductible item. Absent such specific language, we fail to find Taxpayer entitled to a deduction for taxes paid in 1973 in determining its net proceeds of mines tax for 1974. The Department's second issue concerns the validity of axp payer's deductions for cost of marketing and conversion into money. Taxpayer contends due to the complexities of the talc industry it should be allowed to calculate these deductions by an allocation formula, rather than a cost accounting basis. Taxpayer has valued the net proceeds of the Yellowstone and Beaverhead Mines by comparing the sales of rrom these mines at the beneficiation stage to the total sales of the Cyprus Industrial Minerals Company. and applying that ratio to the total marketing and conversion into money costs for Cyprus Industrial Minerals Company. Included in Taxpayer's cost of marketing and conversion, into money are expenses for administration, production, engineering, accounting, data processing and research and-development. Taxpayer contends that authority for such an allocation procedure is provided in section 84-5403 ( 6 ) , R . C .M. 1947 : "6. All moneys actually expended for transporting the ores, and mineral products or deposits from the mines to the mill or reduction works or to the place of sale, and for extracting the metals and minerals therefrom, and for marketing the product and the conversion of the same into money." (Emphasis added. ) The controversy in the instant case does not require a resolution as to the validity of deductions for cost of marketing and conversion into money, The statute allows such a deduction. Here, this issue necessitates a determination as to the validity of the allocation process by which Taxpayer arrived at its deduction. This Court, in a determination of the procedure to be utilized in arriving at the net proceeds of mines in Anaconda Copper Mining Co. v . Junod, 71 Mont. 132, 140, 227 P. 1001, stated: "* * * It was the aim and intention of the legislature to fix some definite and uniform basis for the deter- mination of net proceeds of mines for taxation purposes. This it has done by authorizing deductions of only actual costs. It was not its intention to permit deduction of every conceivable item of expense. " The language used in Anaconda Copper Mining Ca. displays an intent to determine the net proceeds of mines by a definite and uniform method, On the other hand, Taxpayer's allocation formula contemplates expenses incurred not only by its Montana facilities, but by all of the facilities which comprise the Cyprus Industrial Minerals Company. Further, Taxpayer's allocation formula contemplates expenses incurred by the Taxpayer beyond the beneficiation stape as defined in Pfizer v . Madison County, 161 Mont. 261, 267, 505 P.2d 399. In Pfizer the issue was at which stage of the processing of talc does the mining cease and the manufacturing or marketing begin. This, of course, determines the point and value at which the net proceeds tax is applied. The State Board of Equalization claimed the reduction operation was nothing more than an integrated mining operation and the value for the tax would be taken at the selling price, subsequent to the milling operation. The district court held, and this Court affirmed, that the net proceeds tax does not apply to the talc once it has passed the beneficSatbn stage and further held: "* * * Only deductions for the mining operation will be allowed up through the beneficiation stage. All other expenses will be incurred as to the manufacturing process. I I ax payer's allocation formula fails to meet the test of definiteness and uniformity contemplated in section 84-5403, R.C.M. 1947. Taxpayer failed to allocate the actual costs which it incurred in the mining of talc, when determining the net proceeds of its Yellowstone and Beaverhead Mines. The judgment of the district court is reversed. We Concur:

March 7, 1977

a22058fd-f205-4bd1-b702-296c2aca9778

LAWRENCE v DONOVAN

N/A

83-218

Montana

Montana Supreme Court

VIOLA T J o . 83-218 IN THE SUPREPIE COURT OF THE STATE OF MONTANA 1983 LAWRENCE, Plaintiff and Respondent, SHARON LEE DONOVAN and VICTORIA RAE ROSBARSi<Y, Defendants and Appellants. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon R. Bennett, Judge presiding. COUNSEL OF RECORD: For Appellants: Carl A. Hatch; Small, Hatch, Doubek & Pyfer, Helena, Montana For Respondent : Galt & Swanberg, Helena, Montana Submitted on Briefs: September 15, 1983 ~ecided: December 8, 1983 - Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Sharon Lee Donovan and Victoria Rae Rosbarsky appeal from a decree of the District Court of the First Judicial District, Lewis and Clark County, confirming the partition of certain properties located near Hauser Lake. Sharon Lee Eonovan and Victoria Rae Rosbarsky also appeal from an order of the District Court denying their motion to amend the findings of fact and conclusions of law entered by the District Court as to the partition. We affirm the actions of the District Court. Sharon Lee Donovan, Victoria Rae Rosbarsky and Cleber Amundson are the children of Viola Lawrence and Harry Amundson. Harry Amundson purchased the property which is sought to be partitioned in 1933. Sometime thereafter he married Viola Lawrence and during the course of their marriage it was decided that Harry and Viola would hold the property as tenants in common, with each receiving a one-half interest in the property. Harry Amundson died in April 1972, and approximately one year later, Viola married Mallory Lawrence. Viola and Mallory Lawrence moved into the house that had been built on the property soon after their marriage and were living there at the time of the partition. According to the terms of Harry Amundson's will, Viola was to receive a life estate in Harry's one-half interest in the property with the remainder interest to go to his children. Shortly after the close of probate, Viola initiated a partition action seeking d.ivision of her one-half interest in the property as tenant in common from the one-half interest that had belonged to Harry as tenant in common and was now subject to the terms of Harry's will. The partition was contested and it was eventually decided in Lawrence v. Donovan (Mont. 1980), 619 P.2d 1183, 37 St.Rep. 1756, that Viola Lawrence had the right to a partition of the property as a tenant in common and the holder of a life estate in the property. Viola Lawrence then moved for an order directing partition of the property and the appointment of a referee to make recommendations to the court concerning partition. The District Court appointed a referee who partitioned the land into two parcels of approximately equal value, disregarding the value of any improvements upon the land. Of the two parcels, the referee recommended that Viola Lawrence receive Site No. 1, the parcel containing the house and other improvements. The appellants objected to the referee's report on various grounds and filed their objections with the District Court. The court considered the appellant's objections, but finding them unpersuasive, issued findings of fact and conclusions of law affirming the referee's report and denying the appellant ' s objections . The appel-1-ants then filed a motion to amend the court's findirgs of fact and conclusions of law. The District Court denied the motion and entered a decree confirming partition. The following issues are raised on appeal: 1. Whether the District Court erred in awarding Viola Lawrence that portion of the property containing all of the improvements. 2. Whether the District Court erred in adopting the referee's valuation of the lands bordering the lakeshore. 3. Whether the District Court erred by failing to consider any mineral potential of the property. 4. Whether the District Court's description of the tracts comprising Site No. 1 and Site No. 2 are in. error. 5. Whether the District Court erred in assessing 50 percent of the surveyor fees, referee fees, and other costs of partition to the defendants as holders of the remainder interest. ALLOTMENT OF THE PROPERTY CONTAINING ALL IMPROVEMENTS The appellants contend that when the referee attempted to divide the land without considering the value of the improvements upon them, he committed an error in equity. They further contend that the District Court compounded that error by following the referee's recommendation without recognizing in some way that the children should be compensated for their remainder interest in the improvements which were present upon the land at the time of Harry Amundson's death. Section 70-29-207, MCA, sets forth the manner in which the referee should allot shares when partitioning land as fol.lows: "70-29-207. Allotment of shares of land --improvements. I n c z e s the c o u z shall direct the referees, in making partition of land, to allot the share of each of the parties owning an interest in the whole or in any part of the premises sought to be partitioned and to locate the share of each cotenant so as to embrace a . s far as practicable the improvements made by such cotenant upon the property, and the value of the improvements made by the tenants in common must be excluded from the valuation in making allotments, and the land must be valued without regard to such improvements, in case the same can be done without material injury to the rights and interests of the other tenants in common owning such land." From this, it is apparent that the referee properly excluded the improvements in appraising the property, and that he properly included the improvements in allocating the two parcels between the parties. Although the appellants may have a remainder interest in the improvements that were in existence on the property at the time of Harry Amundson's death, the terms of the statute direct the referee to locate each cotenant's share so as to embra-ce the improvements attributable to that cotenant only "as far as practicable." Because the improvements made by Viola Lawrence were placed near the house and Viola and her husband were living in the house, i-t was practicable to allot Site No. 1 to Viola Lawrence rather than to the children. THE VALUE OF THE PROPERTY BORDERING THE LAKESHORE The a.ppe1lants contend that the referee undervalued a certain piece of lakeshore property awarded to Viola Lawrence. The referee placed a value of approximately $7,500 on the 4.2 acre tract in question. However, the appellants contend that because they have received an offer of $24,500 for the tract if title can be conveyed fee simple, the valuation of the referee is obviously in error. The rule laid down by this Court in In re Moran's Estate (1954), 128 Mont. 1-89, 195, 273 P.2d 671, has bearing on this "It is a well settl-ed rule that where a partition has been made by commissioners, the court interferes with their action with reluctance. It is only where a . clear mistake has been made that their proceedings will be interfered with. Cooper v. Long, 115 Okl. 286, 244 Pac. 167, 46 A. L. R. 343. "Ordinarily where the commissioners have arrived at a value and there is a showing that other persons think the property is of a higher value, the presumption is that the commissioners have acted fairly and honestly and the presumption must obtain unless overthrown by a clear preponderance of the evidence. See Aldrich v. Aldrich, 75 S. C. 369, 55 S. E. 887, 117 Am. St. Rep. 909." Here, as in Moran, the appellants must present sufficient evidence to overcome the presumption that the value of the property was arrived at fairly and honestly. The $24,500 offer presented by the appellants was dependent on the transfer of a fee simpl-e title. However, no present fee simple title could be transferred by reason of Viola Lawrence's life estate in the property. Theref ore, the presumption has not been overcome and the value of the property arrived at by the referee will be presumed to be the correct valuation of the property. CONSIDEaATION OF MINERAL POTENTIAL The appellants contend that the referee should have considered the mineral potential of the property because of the proximity of the sapphire mine located on the Wesley Castle property to the southeast boundary of Site No. 1 . . However the District Court, after considering all of the evidence, found "that the evidence introduced fails to establish that there are valuable mineral deposits which should receive consideration in the partition of the subject property." We have reviewed the record and are in agreement with the District Court. The mere assertion of a mineral potential, without more, cannot render the finding of the District Court clearly erroneous. THE DISTRICT COURT'S DESCRIPTION OF THE PARTITIONED LAND Both parties agree that there are discrepancies between the amount of acreage partitioned by the referee in his report and the amount of acreage awarded by the District Court in its decree confirming partition. The referee in his report lists the total amount of acreage to be partitioned as 216.6 acres. Of this, 122.5 acres were placed in Site No. 1 with a total value of $1-27,420, and the remaining 94.10 acres were placed into Site No. 2 with a total value of $127,690. When the total number of acres awarded by the District Court is calculated the result is that 156.4 acres are contained in Site No. 1 . and 97.15 acres are contained in Site No. 2. This is a difference from the referee's totals of 34 acres and 3.05 acres, respectively. There must he a remand for correction of the land descriptions. THE ASSESSMENT OF PARTITION COSTS The appellants contend that all of the costs of pa.rtition must be borne by Viola Lawrence because she alone will benefit from the partition. Section 70-29-218 sets forth the manner in which the costs of partition shall be apportioned among the parties as follows: "70-29-218. Costs - of partition--apportionment among parties--lien . The costs of partition, including reasonable counsel fees, expended by the or either of the defendants £ 0 ; the common benefit, fees of referees, or other disbursements must be pa-id by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case, they shall be a lien on the several shares a.nd the judgment may be enforced by execution against such shares and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expense of such litj-gation to be paid by the parties thereto or any of them." (sic) It is difficult to conclude that on117 Viola Lawrence will be benefited by the partition of the property. First, Site No. 2 is in effect set aside for the appellant's future use with the life tenant bearing the burden of making necessary repairs and paying taxes upon the land until the life estate is terminated. Section 70-16-103, MCA. Second, future arguments over which portion of the property is subject to the remainder interest are eliminated and if Viola. Lawrence's fee interest should be sold or mortgaged the boundaries of the property will be cl.early established. From this, it is clear that Viola Lawrence will not be the only beneficiary of the partition. The District Court followed the statute in apportioning the costs of partition. Therefore, the District Court is affirmed in all respects except for the description of the parcels, and the cause is remanded solely for the purpose of correcting the descriptions of the lands consti.tuting Site No. 1 and Site No. 2. \ - . Justice We Concur: . Chief Justice . / Justices

December 8, 1983

2ec6727c-e80a-4fe8-9040-228f549490dc

MATTER OF R L S v BARKHOFF

N/A

83-089

Montana

Montana Supreme Court

No. 83-89 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 IN THE MATTER OF THE CUSTODY OF R.L.S. and T.L.S., Petitioners and Respondents, VS . CARLA JEAN BARKHOFF, a/k/a ENGDAHL, Appellant and Respondent. Appeal from: District Court of the Tenth Judicial District, In and for the County of Fergus Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: William E. Berger, Lewistown, Montana For Respondents: Berger Law Firm, Billings, Montana Torger Oaas, Lewistown, Montana Submitted on Briefs: September 2, 1983 Decided: December 16, 1983 Filed: DEC I 6 1983 & & , * l L l & - , , , C Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is the second time the custody dispute over these two children has reached this Court. The first decision, Sayer v . Barkhoff (Mont. 1981), 632 P.2d 703, 38 St.Rep. 1328, reversed the District Court ruling and remanded it for futher proceedings. On remand the Honorable Nat Allen assumed jurisdiction from the Honorable LeRoy McKinnon at the request of the parties, and a new trial was held. This appeal is taken from the District Court ruling granting attorney fees before the second trial, and from the ruling granting modification of a Wyoming custody decree. The second trial was a series of accusations and counter accusations as to the unfitness of the opposing party to raise the children. From the record the few uncontroverted facts appear as follows. Appellant, hereinafter Mother and respondent, hereinafter Father, are the natural parents of R.L.S., born October 7, 1975, and T.L.S., born October 1, 1976. When the children were born, the couple resided together in Sheridan, Wyoming, without the aid of marriage. They separated in the summer of 1979, and initially Father retained custody of the children. Following several extralegal attempts to gain custody, Mother petitioned a Wyoming District Court for, and was granted, a writ of habeas corpus giving her custody of the children. Finally the parties signed a custody agreement in settlement of a paternity suit brought by Father. The agreement established Father's paternity, but gave primary custody of the children to Mother and a reasonable r i g h t of v i s i t a t i o n t o F a t h e r . S p e c i f i c a l l y Mother was t o have t h e c h i l d r e n t h e f i r s t s i x months of each y e a r and F a t h e r t h e l a s t s i x months u n t i l each c h i l d reached s c h o o l age. When each c h i l d s t a r t e d a t t e n d i n g s c h o o l , Mother would have c u s t o d y d u r i n g t h e s c h o o l y e a r and F a t h e r d u r i n g t h e summer months. Sometime t h e r e a f t e r , Mother and t h e c h i l d r e n l e f t S h e r i d a n and moved t o Lewistown, Montana. F a t h e r p e t i t i o n e d t h e District Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Y e l l o w s t o n e C o u n t y , f o r a m o d i f i c a t i o n o f t h e c u s t o d y d e c r e e , s e e k i n g primary custody. Mother answered and c r o s s p e t i t i o n e d s e e k i n g s o l e c u s t o d y h e r s e l f . Venue was s u b s e q u e n t l y changed t o t h e Tenth J u d i c i a l D i s t r i c t , Fergus County, where a non-jury t r i a l was h e l d . On December 1, 1980, t h e D i s t r i c t Court e n t e r e d its f i n d i n g s of f a c t and c o n c l u s i o n s o f law, g r a n t i n g t h e Mother s o l e c u s t o d y of t h e c h i l d r e n , and l i m i t i n g t h e F a t h e r t o one month's v i s i t a t i o n d u r i n g t h e summer. The e v i d e n c e a t t h i s t r i a l was l i m i t e d t o t e s t i m o n y a b o u t e v e n t s o c c u r r i n g a f t e r t h e Wyoming d e c r e e was i s s u e d , and t h i s Court h e l d t h a t was e r r o r . On August 20, 1981, t h e c a s e was r e v e r s e d and remanded t o t h e D i s t r i c t Court f o r f u r t h e r p r o c e e d i n g s . Mother moved t h e District Court on September 23, 1981, t o g r a n t her a t t o r n e y f e e s f o r b o t h t h e f i r s t t r i a l and t h e a p p e a l . A f t e r a h e a r i n g t h e motion was g r a n t e d on J a n u a r y 28, 1982. The second t r i a l commenced on August 5, 1982. A t t h i s p o i n t t h e u n c o n t r o v e r t e d f a c t s n e a r l y d i s a p p e a r , and t h e p a r t i e s t e l l almost d i a m e t r i c a l l y opposed s t o r i e s . A t t h e s e c o n d t r i a l , F a t h e r a t t e m p t e d t o show t h a t M o t h e r ' s h o u s e k e e p i n g s k i l l s were n i l l , t h a t s h e n e g l e c t e d t h e c h i l d r e n and b e a t them, t h a t s h e abused a l c o h o l and d r u g s , t h a t her l i v i n g arrangements were v e r y u n s t a b l e and posed a n u n h e a l t h y environment and s h e c o u l d n o t hold a job. Mother a t t e m p t e d t o show t h a t F a t h e r abused a l c o h o l , had a v i o l e n t temper and was brainwashing t h e c h i l d r e n i n t o b e l i e v i n g s h e had abandoned them. Both s i d e s p r e s e n t e d numerous w i t n e s s e s i n s u p p o r t of t h e i r r e s p e c t i v e s t o r i e s . On October 25, 1982, t h e D i s t r i c t Court e n t e r e d i t s f i n d i n g s of f a c t , c o n c l u s i o n s of law and o r d e r . The c o u r t found t h e environment i n t h e Mother I s home e n d a n g e r e d t h e i r p h y s i c a l , m e n t a l , m o r a l and e m o t i o n a l h e a l t h , t h a t any harm l i k e l y t o be caused t o t h e minor c h i l d r e n b y a c h a n g e t o F a t h e r ' s c u s t o d y , would b e outweighed by t h e a d v a n t a g e s and t h a t it was i n t h e b e s t i n t e r e s t of t h e c h i l d r e n t o modify t h e d e c r e e . I t was o r d e r e d t h a t t h e c u s t o d y of t h e c h i l d r e n be changed t o F a t h e r and t h a t Mother have l i m i t e d r i g h t s o f r e a s o n a b l e v i s i t a t i o n . T h i s a p p e a l followed. Four i s s u e s a r e r a i s e d by t h e p a r t i e s : 1. Did t h e D i s t r i c t Court e r r by photocopying and a d o p t i n g v e r b a t i m F a t h e r I s proposed f i n d i n g s of f a c t and c o n c l u s i o n s of law? 2. Did F a t h e r show s u f f i c i e n t f a c t s from which t h e D i s t r i c t Court could o r d e r a m o d i f i c a t i o n of t h e c u s t o d y d e c r e e p u r s u a n t t o S e c t i o n 40-4-219, MCA? 3 . Did F a t h e r show s u f f i c i e n t f a c t s from which t h e D i s t r i c t Court could l i m i t M o t h e r w s v i s i t a t i o n p u r s u a n t t o S e c t i o n 40-4-217, MCA? 4. Did t h e D i s t r i c t Court e r r by awarding a t t o r n e y fees and expenses to Mother for the first trial and appeal, and not the full amount of her attorney fees for the second trial? Mother also seeks an award of $1,000 for attorney fees of the present appeal. Mother asserts the trial court abused its discretion by photocopying Father's proposed findings of fact and conclusions of law, and argues that since the evidence was conflicting the trial court should have been more careful to exercise its own judgment. Finally she points out certain facts found by the District Court which she claims are not supported by the record. This Court has consistently held that it is not good practice for the District Court to adopt verbatim one party's proposed finding of fact and conclusions of law because it may lead to error. Tomaskiev. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep.416; In Re Marriage of Beck (Mont. 1981), 631 P.2d 282, 38 St.Rep. 1054. However, once the District Court adopts findings and conclusions they become the court's own, and may not be overturned on appeal unless they are clearly erroneous under Rule 52(a), M.R.Civ.P. Speer v. Speer (Mont. 1982), 654 P.2d 1001, 39 St.Rep. 2204. There is no more than a technical difference between photocopying one party's proposed findings and conclusions and adopting them verbatim, the legal effect is the same. As the cases cited above show, even if the District Court adopts one party's proposed findings and conclusions verbatim, the "clearly erroneous" standard applies on appeal. When the findings and conclusions are not clearly erroneous and are supported by the record, the judge has not abused his discretion by ratifying the proposals of one party. The record in the case at bar contains two stories, and it is difficult to imagine how they could be farther apart. We note that although Father requested the District Court to order an investigation of the "[Hlome, life style, living conditions and stability," of Mother by the Department of Social and Rehabilitation Services, no order was issued. Section 40-4-215, MCA, gives the District Court the discretion to order such an investigation, and we have ruled that absent an abuse of this discretion, it is not error to fail to make such an order. Schiele v. Sager (1977), 174 Mont. 533, 571 P.2d 1142. However, where the respective tales are nearly irreconcilable as here, it is possible that the true facts may not be ascertained by oral testimony alone, and an independent investigation may aid the court immensely. In the future though, District Courts would be well advised to make use of this tool to avoid having to rule simply by choosing between two incredible stories. Approximately five percent of the pertinent facts are agreed on by the parties, the remainder being stubbornly contested by both sides. When the testimony is conflicting and the credibility of the witnesses is the determinative factor, it is the function of the trier of fact to set forth the correct facts. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. On appeal this Court views the evidence in the light most favorable to the prevailing party, and if there is substantial evidence to support the lower court's findings they will not be overturned, Cameron, supra. Though t h e evidence c o n f l i c t s w i t h o t h e r e v i d e n c e , it may still be s u b s t a n t i a l . Campeau v. Lewis ( 1 9 6 5 ) , 144 Mont. 543, 398 P.2d 960. I f t h e D i s t r i c t C o u r t J u d g e i n t h i s c a s e f o u n d F a t h e r ' s w i t n e s s e s more c r e d i b l e , t h e f i n d i n g s of f a c t made were c l e a r l y n o t erroneous. S e v e r a l w i t n e s s e s t e s t i f i e d t o Mother's s l o v e n housekeeping h a b i t s and l i f e s t y l e . She a d m i t s s h e h a s h e l d s e v e r a l d i f f e r e n t j o b s i n t h e p a s t few y e a r s and was f i r e d from one f o r being h a b i t u a l l y l a t e . There was ample testimony of her abuse of a l c o h o l and d r u g s i n t h e presence of t h e c h i l d r e n s i n c e her move t o Lewistown. Mother admitted having changed r e s i d e n c e s a t l e a s t f i v e times i n t h e two y e a r s b e f o r e t r i a l , and is p r e s e n t l y r e c e i v i n g no s t e a d y income. T h e r e was a l s o p h y s i c a l evidence i n t h e form of photographs i n t r o d u c e d a t t r i a l , showing b r u i s e s on t h e body of R.L.S., along w i t h t e s t i m o n y t h a t one of t h e p e r s o n s w i t h Mother had b e a t t h e c h i l d . Mother p o i n t s o u t s p e c i f i c f a c t s which s h e c l a i m s a r e n o t supported by t h e r e c o r d . W e have examined t h e r e c o r d and f i n d her a s s e r t i o n s i n c o r r e c t . A t b e s t t h e r e is c o n t r a d i c t o r y evidence concerning each claimed e r r o r and a s s t a t e d above w e must d e f e r t o t h e judgment of t h e t r i a l c o u r t where t h e f i n d i n g s a r e based on c o n f l i c t i n g evidence. The record c o n t a i n s s u b s t a n t i a l c r e d i b l e evidence t o s u p p o r t t h e D i s t r i c t C o u r t ' s f i n d i n g s o f f a c t a n d c o n c l u s i o n s of law. Viewing t h e r e c o r d i n t h e l i g h t most f a v o r a b l e t o t h e p r e v a i l i n g p a r t y , t h e c o u r t c l e a r l y a c t e d w i t h i n i t s d i s c r e t i o n a s t r i e r of f a c t . The second i s s u e r a i s e d by Mother is whether t h e r e is a s u f f i c i e n t c h a n g e i n c i r c u m s t a n c e s t o w a r r a n t a m o d i f i c a t i o n of t h e c u s t o d y d e c r e e p u r s u a n t t o S e c t i o n 0) 40-4-219(c), MCA, which p r o v i d e s t h a t : h "The c o u r t s h a l l n o t m o d i f y a p r i o r c u s t o d y d e c r e e u n l e s s it f i n d s , upon t h e b a s i s of f a c t s t h a t have a r i s e n s i n c e t h e p r i o r d e c r e e o r t h a t were unknown t o t h e c o u r t a t t h e t i m e of e n t r y o f t h e p r i o r d e c r e e , t h a t a change h a s o c c u r r e d i n t h e c i r c u m s t a n c e s o f t h e c h i l d o r h i s c u s t o d i a n and t h a t t h e m o d i f i c a t i o n is n e c e s s a r y t o s e r v e t h e b e s t i n t e r e s t o f t h e c h i l d . I n a p p l y i n g t h e s e s t a n d a r d s t h e c o u r t s h a l l r e t a i n t h e c u s t o d i a n appointed p u r s u a n t t o t h e p r i o r d e c r e e u n l e s s : " ( c ) t h e c h i l d ' s p r e s e n t e n v i r o n m e n t endangers s e r i o u s l y h i s p h y s i c a l , m e n t a l , moral, o r emotional h e a l t h and t h e harm l i k e l y t o b e c a u s e d by a c h a n g e o f e n v i r o n m e n t is o u t w e i g h e d b y i t s advantages t o him." The s t a t u t e s e t s o u t a two p a r t test. The f i r s t p a r t of t h e test c o n t a i n s two s u b p a r t s which b e a r a q u a l i f y i n g r e l a t i o n t o each o t h e r . Gilmore v. Gilmore ( 1 9 7 5 ) , 166 Mont. 47, 530 P.2d 480. There must be a change o f c i r c u m s t a n c e s , b u t t h a t change is n o t measured i n a vacuum. The change must be s i g n i f i c a n t enough i n r e l a t i o n t o t h e b e s t i n t e r e s t s of t h e c h i l d t h a t t h o s e i n t e r e s t s a r e no l o n g e r s e r v e d by t h e d e c r e e i n f o r c e . The b e s t i n t e r e s t s o f t h e c h i l d i n a m o d i f i c a t i o n proceeding a r e judged by t h e c r i t e r i a of S e c t i o n 40-4-212, MCA. S c h i e l e v . Sager ( 1 9 7 7 ) , 174 Mont. 533, 571 P.2d 1142. The second p a r t of t h e t e s t a l s o i n v o l v e s two s u b p a r t s which bear less of a r e l a t i o n t h a n t h o s e above, b u t a r e i n t e r t w i n e d n o n e t h e l e s s . The primary c u s t o d i a n may n o t be changed u n l e s s t h e c o u r t f i n d s t h e enumerated d a n g e r s e x i s t , and t h e advantages of change outweigh t h e d i s a d v a n t a g e s . A s mentioned above, t h e f a c t s found by t h e t r i a l c o u r t a r e s u p p o r t e d by t h e r e c o r d and a r e thus applied to the test set out in the statute. The District Court did not enumerate the facts which met each part of the test. However, this court will look through the form to the substance of the trial court's findings. In Re the Marriage of A.R.C. v . C.K.C. (Mont. 1983), 661 P.2d 459, 40 St.Rep. 499. The facts, as found by the court, clearly show a change in circumstances of Mother and the children. Mother has removed the children from the Sheridan, Wyoming, area to Lewistown, Montana, several hundred miles from Father. When Mother was granted custody, she held a steady job in Sheridan, but since that time she has bounced from job to job and at the time of trial had no steady means of support. Mother has also developed a habit of changing residences every few months and maintained what could be termed "communal" living arrangements because of the large number of different persons residing with her on both temporary and permanent bases. The children have been left with a variety of young babysitters or with none at all. Mother was incarcerated and fined for conducting herself in a disorderly manner at a Lewistown bar during the time she had custody of the children. There was also evidence that both Mother and members of her household had struck and physically abused the children. This is by no means an exhaustive list of the changed circumstances; suffice it to say that the evidence clearly supports the District Court's conclusions of law numbers 2, 3 and 4. The children's environment with Mother, "endangers seriously their physical, mental, moral and emotional health." "[Tlhe harm likely to be caused to the minor children by a change of environment t o t h a t of t h e n a t u r a l f a t h e r is most c e r t a i n l y outweighted by its advantages t o t h e minor c h i l d r e n ; " and " m o d i f i c a t i o n is n e c e s s a r y t o s e r v e t h e b e s t i n t e r e s t s of t h e minor c h i l d r e n . " Next, Mother c o n t e n d s t h a t t h e D i s t r i c t Court e r r e d by l i m i t i n g her v i s i t a t i o n because t h e r e was no f i n d i n g t h a t v i s i t a t i o n would endanger t h e c h i l d r e n , nor would t h e r e c o r d s u p p o r t such a f i n d i n g . The Wyoming c u s t o d y d e c r e e g a v e b o t h p a r t i e s r e a s o n a b l e v i s i t a t i o n r i g h t s w h i l e t h e c h i l d r e n were i n t h e c a r e of t h e o t h e r p a r e n t . Thus, t h e D i s t r i c t C o u r t ' s r e s t r i c t i o n of Mother's v i s i t a t i o n is governed by S e c t i o n 40-4-217(3), MCA, which sets o u t t h e a p p l i c a b l e s t a n d a r d . A p a r e n t s ' v i s i t a t i o n r i g h t s may n o t be r e s t r i c t e d u n l e s s t h e c o u r t f i n d s t h a t t h e v i s i t a t i o n would, " [ e l n d a n g e r s e r i o u s l y t h e c h i l d ' s p h y s i c a l , m e n t a l , moral o r emotional h e a l t h . " W e n o t e t h a t t h i s is t h e same s t a n d a r d used t o judge t h e m o d i f i c a t i o n of c u s t o d y d e c r e e s i n S e c t i o n 40-4-219, MCA. Applying t h e f a c t s found by t h e t r i a l c o u r t , t h e r e is c l e a r l y no e r r o r h e r e . The f a c t s d i s c u s s e d i n d e c i d i n g t h e p r e v i o u s i s s u e a l l s u p p o r t t h e D i s t r i c t C o u r t ' s d e c i s i o n t o l i m i t Mother's v i s i t a t i o n . S p e c i f i c a l l y i n c o n c l u s i o n o f law number 2 , t h e c o u r t found, "That t h e minor c h i l d r e n s ' environment w i t h t h e n a t u r a l mother endangers s e r i o u s l y t h e i r p h y s i c a l , m e n t a l , moral and e m o t i o n a l h e a l t h . " T h i s Court w i l l look through t h e form t o t h e s u b s t a n c e of t h e D i s t r i c t C o u r t ' s r u l i n g , A.R.C., s u p r a , and t h e D i s t r i c t C o u r t a p p a r e n t l y f e l t t h a t t h i s u n h e a l t h y e n v i r o n m e n t e x i s t e d when t h e c h i l d r e n v i s i t e d Mother a s w e l l a s when s h e had c u s t o d y of them. The v i s i t a t i o n r i g h t s were a d j u s t e d a c c o r d i n g l y , and we f i n d no e r r o r i n t h a t r u l i n g . The f o u r t h i s s u e i s r a i s e d by b o t h F a t h e r , who c o n t e n d s t h a t t h e D i s t r i c t Court e r r e d by g r a n t i n g Mother a t t o r n e y fees f o r t h e f i r s t t r i a l and a p p e a l , and Mother, who contends t h e D i s t r i c t Court e r r e d by n o t g r a n t i n g h e r t h e f u l l amount of a t t o r n e y f e e s r e q u e s t e d f o r t h e second t r i a l . The chronology of e v e n t s must be e l a b o r a t e d h e r e t o p r o v i d e a c o n t e x t f o r d i s c u s s i o n of t h i s i s s u e . The District Court e n t e r e d i t s f i n d i n g s of f a c t and c o n c l u s i o n s of law and o r d e r f o r t h e f i r s t t r i a l on December 1, 1980. Mother had r e q u e s t e d a t t o r n e y f e e s i n h e r answer t o F a t h e r ' s p e t i t i o n f o r m o d i f i c a t i o n , b u t none were g r a n t e d by t h e D i s t r i c t Court i n its December 1, 1980, o r d e r . F a t h e r f i l e d h i s n o t i c e of a p p e a l on December 30, 1980. T h i s Court r e v e r s e d t h e D i s t r i c t Court r u l i n g on August 20, 1981, and remanded f o r f u r t h e r p r o c e e d i n g s . On December 28, 1981, Mother moved t h e D i s t r i c t C o u r t t o g r a n t h e r a t t o r n e y f e e s f o r t h e f i r s t t r i a l and a p p e a l , and f o r f u t u r e c o s t s of t h e second t r i a l . B r i e f s were submitted and arguments made b e f o r e t h e D i s t r i c t C o u r t , and t h e motion was g r a n t e d on J a n u a r y 28, 1982. F a t h e r was o r d e r e d t o p a y o v e r t o t h e c l e r k o f c o u r t $ 1 , 5 0 0 r e p r e s e n t i n g Mother's a t t o r n e y f e e s f o r t h e f i r s t t r i a l and a p p e a l , and $700 f o r f u t u r e a t t o r n e y f e e s . The money was d e p o s i t e d w i t h t h e clerk of c o u r t and Mother's a t t o r n e y r e c e i v e d t h e e n t i r e amount by August 23, 1982. The second t r i a l concluded on August 30, 1982 and t h i s a p p e a l followed. F a t h e r c o n t e n d s t h e D i s t r i c t C o u r t was w i t h o u t j u r i s d i c t i o n t o g r a n t a t t o r n e y f e e s f o r t h e f i r s t t r i a l and a p p e a l , and w e a g r e e . Mother's motion was made p u r s u a n t t o S e c t i o n 40-4-110, MCA, which a l l o w s a t t o r n e y f e e s i n c e r t a i n d o m e s t i c r e l a t i o n s c a s e s . However, s i n c e t h e judgment d i d n o t p r o v i d e f o r a t t o r n e y f e e s , t h e judgment must have been amended b e f o r e e i t h e r p a r t y could be o r d e r e d t o pay t h o s e f e e s . A motion t o amend a judgment must be made w i t h i n t e n d a y s of its e n t r y , Rule 5 9 ( g ) M.R.Civ.P. T h i s r u l e a p p l i e s t o r e q u e s t s f o r a t t o r n e y f e e s , and is n o t o v e r r i d d e n by S e c t i o n 40-4-110, MCA. McDonald v. McDonald ( 1 9 7 9 ) , 1 8 3 Mont. 312, 599 P.2d 356. S i n c e Mother's motion was made more t h a n a y e a r a f t e r t h e judgment was e n t e r e d , it w a s u n t i m e l y and t h e District Court was w i t h o u t j u r i s d i c t i o n t o g r a n t a t t o r n e y f e e s f o r t h e f i r s t t r i a l . The D i s t r i c t Court was a l s o w i t h o u t j u r i s d i c t i o n t o g r a n t Mother a t t o r n e y f e e s on a p p e a l when t h e m a t t e r f i r s t appeared b e f o r e t h i s Court. The f i r s t o p i n i o n d i d n o t a d d r e s s t h e r e q u e s t , t h u s it is deemed d e n i e d . T h a t t a c i t d e n i a l is a s e f f e c t i v e as i f s e t o u t e x p l i c i t l y i n t h e o p i n i o n , and it is p a r t of t h e judgment of t h i s C o u r t . Lloyd v. C i t y of G r e a t F a l l s ( 1 9 3 9 ) , 107 Mont. 588, 87 P.2d 187. On remand, t h e D i s t r i c t C o u r t h a s no power t o modify t h e judgment of t h e Supreme Court. S t a t e Ex R e l . Vaughn v. D i s t r i c t C o u r t ( 1 9 4 1 ) , 111 Mont. 552, 111 P.2d 810. S i n c e t h i s C o u r t e s s e n t i a l l y o r d e r e d each p a r t y t o b e a r its own a t t o r n e y f e e s , t h e D i s t r i c t Court e r r e d by o r d e r i n g F a t h e r t o pay Mother's a t t o r n e y f e e s . Mother claims t h a t t h e judgment i n t h e second t r i a l should have c o n t a i n e d an award of t h e remaining amount o f h e r a t t o r n e y f e e s i n c u r r e d f o r t h a t t r i a l . Her r e a s o n i n g is t h a t t h e J a n u a r y 28, 1982, o r d e r g r a n t e d h e r f u t u r e a t t o r n e y f e e s , which s h e i n t e r p r e t s t o mean a l l a t t o r n e y f e e s . However, the order granted a specific amount and did not make a blanket award. Section 40-4-110, MCA, gives the District Court discretion in awarding attorney fees, and absent an abuse of discretion its ruling will stand. Harris v . Harris (Mont. 1980), 616 P.2d 1099, 37 St.Rep. 1696. Finally, Mother requests an award of attorney fees incurred for this appeal. The record contains affidavits of both parties with respect to their financial affairs, which disclose that neither party is receiving an inordinate amount of income over their necessary expenses. In light of the foregoing opinion affirming the District Court, it is ordered that both parties bear their own attorney fees. From the record of this case, it is apparent that neither parent has provided an ideal environment for raising the children. Given that the District Court has continued jurisdiction over child custody matters, see Erhardt v. Erhardt (1976), 171 Mont. 49, 554 P.2d 758, the District Court is hereby ordered to direct the Department of Social and Rehabilitation Services or other appropriate public body, to conduct periodic investigations and make reports of the living conditions and environment of both parents as it may relate to the welfare of the children. This order is made pursuant to Section 41-3-201, MCA, et seq., and is to remain in effect for one year from the date of its entry by the District Court, unless that court deems an extension necessary. Since the children will spend the majority of their time with their Father and thus may be in Wyoming, the District Court shall empower the Department to obtain whatever cooperation and assistance is necessary from the agencies of that state to carry out the order. Affirmed in part, reversing award of attorney fees. We concur: %Add. * z WQa? Chief Justice Justices Mr. Justice Daniel J. Shea, specially concurring: Although I would affirm the result, I emphasize again that the process of adopting verbatim the proposed findings and conclusions of the prevailing party is demeaning to the judicial process.

December 16, 1983

5cc70c01-743e-454f-a488-0139afeea5f9

DONNES v SUPERINTENDENT OF PUBLIC

N/A

83-075

Montana

Montana Supreme Court

NO. 83-75 IN THE SUPREME COURT OF THE'STATE OF MONTANA 1983 ADELINE DONNES , Petitioner and Appellant, STATE OF MONTANA, ex rel., SUPERINTENDENT OF PUBLIC INSTRUCTION, and BOARD OF TRUSTEES, CARBON COUNTY SChOOL DIST. #1, Respondent and Respondent. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant: Utick, Grosfield & Uda; Joan A. Uda argued, Ilelena, Montana For Respondent: John W. Larson argued, Helena, llontana Arthur W. Ayers, Jr., argued, Red Lodge, Montana Filed: Submitted: September 15, 1983 Decided: November 23, 1983 - Clerk The Honorable Douglas G. Harkin delivered the Opinion of the Court. Petitioner Adeline Donnes (Donnes) appeals her termination as a tenured teacher by the Carbon County Board of Trustees (Trustees). The decision of the Trustees to terminate Donnes was reviewed and sustained by the County Superintendent of Schools (County Superintendent), and the State Superintendent of Public Instruction (State Superintendent) and the First Judicial District Court. At each level, sufficient evidence was found to support her termination because of her poor relationship with her students in the sixth grade. We affirm. The following issues are raised by appellant: 1. Are the administrative and court decisions upon which this appeal is based fatally defective under the Montana Administrative Procedure Act, and is the District Court's decision clearly erroneous because not supported by reliable, probative and substantial evidence on the record as a whole? 2. Was the Trustees' termination of Donnes as a tenured teacher in violation of due process requirements, and in violation of the covenant of good faith and fair dealing in employment contracts? 3. Did the County Superintendent commit reversible error in adopting verbatim the proposed findings of fact and conclusions of law submitted by the attorney for the Trustees? Donnes was a tenured teacher with 35 years of teaching experience. The evidence suggests that she performed well "in the cognitive area," but, despite warnings, received negative evaluations, had frequent confrontations with parents and the school principal, and was abusive, arbitrary and insensitive to the students1 feelings. Donnes is now in her late sixties and asks not that this Court reinstate her, but that it award back pay to her if her termination is overturned. Donnes was first notified of her termination in March of 1977, after the Trustees followed the principal's recommendation and voted unanimously not to rehire her. Upon her request, Donnes was furnished with a specific statement of reasons for her termination and was granted a hearing by the Trustees, who then affirmed their decision to fire her. They also ad.ded reasons 5 and 6 to the following statement of reasons for her termination: 1. Belittling and ridiculing students by making degrading comments about students in the presence of students. 2. Failure to satisfactorily correct problems as outlined in a post-evaluation with the principal. 3. Creating negative feeling toward school, which substantially impairs normal educational progress. 4. Inconsistent and erratic grading practices. 5. Failure to sign Evaluation according to Trustees1 policy. 6. Repeated physical abuse or corporal punishment contrary to statute. In May of 1977, upon Donnes' petition, the County Superintendent conducted a hearing. A transcript was made and records of Trustees' meetings and letters, were entered into the record. The principal testified extensively, but much of his evidence of specific instances of Donnes1 conduct was hearsay. The hearsay evidence from the principal was admitted by the County Superintendent for the limited purpose of showing that complaints had been received, not that the accusations were true. The only other witness actually testifying about Donnes' conduct was the mother of a girl who had received a "U" (unsatisfactory) grade from Donnes. This witness was also the wife of a member of the Trustees. There is much conflict in the transcript regarding Donnes' awareness of the problems and complaints, whether she actually abused the students, and whether she had been warned by the principal that he would recommend her termination if her conduct did not improve. The record includes evidence that the Trustees had attempted to terminate Donnes two years earlier for physically disciplining certain children, but that attempt was unsuccessful because it was not properly effected, and was overturned after review by the County Superintendent. On July 1, 1977, the County Superintendent upheld the Trustees' termination of Donnes. However, the only significant finding supporting the County Superintendent's decision was that "[tlhe Board of Trustees . . . had substantial evidence upon which to base its decision." The State Superintendent denied Donnes' petition for a hearing de novo, and held reasons 5 and 6 must be stricken. -- After a hearing at which Donnes testified and was allowed to present additional evidence, the State Superintendent concluded that even without reasons 5 and 6, there was sufficient evidence to support the County Superintendent's decision. The State Supperintendent issued detailed findings of fact based upon (1) its review of the written transcript of the hearing before the County Superintendent, (2) testimony of Donnes before the hearing examiner appointed by the State Superintendent and (3) the remainder of the record. Donnes petitioned the District Court for administrative review, reinstatement and an award of back pay or, in the alternative, an order directing the State Superintendent to hold a hearing de novo. The District Court affirmed the - - decision of the State Superintendent and this appeal followed. MAPA DEFECTS Donnes argues two substantial defects in the decision of the County Superintendent. First, the County Superintendent failed to include findings of fact with an explicit statement of the underlying facts supporting the findings as required by the Montana Administrative Procedure Act (MAPA) at Section 2-4-623(1), MCA. Second, the County Superintendent failed to rule on Donnes' proposed findings of fact as required by the MAPA at Section 2-4-623 (4) , MCA. Donnes argues that because of these defects, the administrative decision was "made upon unlawful procedure", was made in violation of statutory provisions and substantially impaired the rights of the appellant because findings of fact were not made. Section 2-4-704 (2) (a) , (c) , (g) , MCA. The provisions of MAPA became applicable to school controversies on July 1, 1977 when the statutory definition of "agency" was amended to include state and county superintendents. See Yanzick - v. School District - No. - 23 (Mont. 1982), 641 P.2d 431, 39 St.Rep. 191; Section 2-4-102(2) (c), MCA amd. Section 2, Ch. 285, Laws of Montana (1977) . July 1, 1977 was also the date of the decision of the County Superintendent. Although the 1977 amendments to the MAPA do not contain an express provision defining the effect upon pending proceedings, the MAPA, at its original enactment in 1971, provided that "pending proceedings shall not be affected". Section 26 of Ch. 2, Ex. Laws of 1971. Consistent application of such a clear statement of legislative intent mandates that the 1977 amendment to the MAPA does not apply to the Donnes proceeding that was then pending before the County Superintendent. Donnes' argument that the MAPA applies to the proceeding before the County Superintendent is without merit. SUFFICIENCY OF EVIDENCE Donnes also argues that the District Court's decision is clearly erroneous because it was not supported by reliable, probative and substantial evidence on the record as a whole pursuant to Section 2-4-704(2)(e), MCA. Specifically, Donnes urges that (1) the evidence of incidents of improper conduct was merely a list of complaints admitted into evidence for the purpose of establishing the fact of the complaints only, and that for any other purpose the incidents were hearsay, (2) the only other evidence was unreliable as it was the testimony of Mrs. Maurlen Marcusson, the mother of a student who received a "U" (unsatisfactory) grade from Mrs. Donnes. The District Court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. Section 2-4-704 ( 2 ) , MCA; Yanzick - v. School District - No. - 23 (Mont. 1982), 641 P.2d 431, 438, 39 St.Rep. 191, 200. To effect a reversal of the District Court's decision based on the weight 9f evidence, this Court must find the decision of the District Court to be "clearly erroneous1'. Section 2-4-704 (2) (e) , MCA; Wheatland County - v. Bleeker (1978), 175 Mont. 478, 575 P.2d 48. It is true that much of the principal's testimony was admitted solely for the purpose of establishing the fact of complaints. However, beyond that testimony, there is ample evidence to support the decision of the District Court: 1. There were a great number of complaints about Donnes' treatment of her students; 2. Mr. Gist, the principal, investigated the complaints and in his opinion most were well founded; 3. Mr. Gist testified as to his own observations of students crying and disruptions in Donnes' classroom; 4. Mr. Gist was of the opinion that Donnes was an ineffective teacher from the standpoint of dealing with the feelings of the school children; 5. Both Mr. Gist and Mrs. Marcusson knew some of Donnes1 students personally, and noted a very definite change for the worse in the attitude of these students toward Donnes and the school after attending her class; 6. Mr. Gist testified that he did not feel Donnes progressed in her relationships with her students between November 1976 and March 1977; 7. Mrs. Marcusson personally observed the teachinq of Donnes on a daily basis, for nearly three weeks; and 8. Mrs. Marcusson testified that Donnes frequently wasted more than one-half of each class bickering with students and frequently disciplined students erroneously. Donnes' contentions of hearsay and unreliability notwithstanding, this Court finds this evidence to be sufficient to support the independent and consistent decisions of the Trustees, the County Superintendent and the District Court. GOOD FAITH AND FAIR DEALING Donnes next contends that her firing and the circumstances surrounding her firing were a violation of due process and the covenant of good faith and fair dealing in the employment contract. Donnes refers this Court to the covenant of good faith and fair dealing in employment contracts recognized by this Court in Gates v. Life of - - - Montana Ins. Co. (Mont. 1983), 668 ~ . 2 d 213, 215, 40 St.Rep. - - 1287, 1289. This issue is not properly before this Court as no such tort was pled in the District Court. It is well settled that a party may not change his theory on appeal to this Court from that advanced in the trial court. Velte - v. Allstate Ins. Co. (1979), 181 Mont. 300, 593 ~ . 2 d 454; - Chamberlain v . Evans (1979), 180 Mont. 511, 591 P.2d 237; - Sturdevant v . Mills (1978), 177 Mont. 137, 580 ~ . 2 d 923. - Donnes' allegations of denial of due process are therefore relevant only to the extent that they demonstrate prejudice to the substantial rights of the appellant justifying reversal of the agency decisions under Section 2-4-704 (2) (a) , MCA. None of the alleged breaches of due process kept Donnes from having a full, fair and correct adjudication of her substantive rights. VERBATIM ADOPTION OF FINDINGS Finally, Donnes challenges the County Superintendent's verbatim adoption the proposed findings fact and conclusions of law submitted by the attorney for the Trustees. Findings and conclusions which are "sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and which are supported by the evidence," will not be prejudicial merely because the court followed proposals of counsel. In Re the Marriage of Parenteau (Mont. The decision of the District Court is affirmed. ~istrict- Judge, sitting in place of Mr. Justice Frank B. Morrison, Jr. We concur: % a & @ & Chief Justice Justices Mr. J u s t i c e John Conway H a r r i s o n , d i s s e n t i n g . I r e s p e c t f u l l y d i s s e n t . I n s o d o i n g , I f i n d t h a t t h e f a c t s i t u a t i o n h e r e r e q u i r e s t h a t someone speak o u t t o t h e p o i n t of due p r o c e s s and t h e covenant of good f a i t h and f a i r d e a l i n g w i t h t h i s t e a c h e r . Adeline Donnes gave t h e s c h o o l system of Carbon County t h i r t y - t w o y e a r s of f a i t h f u l s e r v i c e p r i o r t o March 7 , 1977, when t h e Board o f T r u s t e e s v o t e d a t a s p e c i a l meeting n o t t o renew h e r c o n t r a c t f o r t h e y e a r 1977-78. Records r e v e a l t h a t s h e was n o t n o t i f i e d t h a t h e r c o n t r a c t would be d i s c u s s e d a t t h a t meeting, and was n o t p r e s e n t . She was, however, n o t i f i e d of t h e d e c i s i o n t o f i r e h e r i n a l e t t e r d a t e d March 1 4 , 1977. She r e q u e s t e d a w r i t t e n s t a t e m e n t " d e c l a r i n g c l e a r l y and e x p l i c i t l y s p e c i f i c r e a s o n o r reasons" f o r such t e r m i n a t i o n , by l e t t e r d a t e d March 21, 1977. On March 22, t h e Board h e l d a n o t h e r s p e c i a l meeting s p e c i f i c a l l y " t o f o r m u l a t e t h e r e a s o n s f o r n o t o f f e r i n g Mrs. Adeline Donnes a c o n t r a c t f o r t h e 1977-78 s c h o o l y e a r . " The r e a s o n s a r r i v e d a t by t h e Board d u r i n g t h e meeting were: "1. B e l i t t l i n g and r i d i c u l i n g s t u d e n t s by making d e g r a d i n g comments a b o u t s t u d e n t s i n t h e p r e s e n c e of s t u d e n t s . "2. F a i l u r e t o s a t i s f a c t o r i l y c o r r e c t p r o b l e m a r e a s a s o u t l i n e d i n a p o s t - e v a l u a t i o n w i t h p r i n c i p a l . 3 . C r e a t i n g n e g a t i v e f e e l i n g toward s c h o o l , w h i c h s u b s t a n t i a l l y i m p a i r s normal e d u c a t i o n a l p r o g r e s s . "4. I n c o n s i s t e n t and e r r a t i c g r a d i n g p r a c t i c e s . " On March 22, 1977, t h e Board mailed Mrs. Donnes a s e c o n d and a l m o s t i d e n t i c a l l e t t e r n o t i f y i n g h e r o f t e r m i n a t i o n , which was done because t h e f i r s t l e t t e r was n o t s e n t by c e r t i f i e d m a i l , a s r e q u i r e d by s t a t u t e . The second l e t t e r was s e n t by c e r t i f i e d m a i l , b u t d i d n o t c o n t a i n a copy of S e c t i o n 20-4-204, MCA, which is r e q u i r e d by t h e s t a t u t e t o accompany s u c h l e t t e r s . By l e t t e r d a t e d March 2 8 , 1977, t h e Board gave Mrs. Donnes a s t a t e m e n t of i t s r e a s o n s f o r t e r m i n a t i o n a s r e q u i r e d by t h e s t a t u t e , which were word f o r word a s q u o t e d above, from t h e B o a r d ' s m i n u t e s of its March 22, 1977, meeting; Mrs. Donnes t h e n r e q u e s t e d a t e r m i n a t i o n h e a r i n g b e f o r e t h e Board. By l e t t e r d a t e d A p r i l 8 , 1977 ( a F r i d a y ) , t h e Board n o t i f i e d Mrs. Donnes t h a t h e r t e r m i n a t i o n h e a r i n g would b e h e l d on A p r i l 11, 1977 ( t h e f o l l o w i n g Nonday), a t 6:35 p.m. A s s c h e d u l e d , t h i s h e a r i n g was h e l d on A p r i l 11, 1977. I t commenced a t 6:30 p.m. and ended a t 7:15 p.m., a f t e r which t h e Board went i n t o s p e c i a l s e s s i o n and v o t e d t o a f f i r m t h e i r p r e v i o u s d e c i s i o n t o t e r m i n a t e Mrs. Donnes' s e r v i c e s . The Board a l s o t h e n v o t e d t o add two new r e a s o n s f o r t e r m i n a t i o n t o t h o s e p r e v i o u s l y d e c i d e d : "5. F a i l u r e t o s i g n E v a l u a t i o n a c c o r d i n g t o Board p o l i c y . "6. Repeated p h y s i c a l a b u s e o r c o r p o r a l punishment c o n t r a r y t o s t a t u t e s . " By a l e t t e r d a t e d A p r i l 1 9 , 1977, t h e Board n o t i f i e d Mrs. Donnes t h a t t h e y had a f f i r m e d t h e t e r m i n a t i o n d e c i s i o n and of a d d i t i o n a l r e a s o n s f o r t e r m i n a t i o n . Mrs. Donnes appealed t h e d e c i s i o n t o t h e Carbon County S u p e r i n t e n d e n t o f S c h o o l s , Peggy Ann K o t a r , who h e l d a h e a r i n g on May 1 0 , 1977. S u p e r i n t e n d e n t Kotar i s s u e d h e r findings and order sustaining the Board's decision on July 1, 1977. Superintendent Kotar did not send a copy of the order to Mrs. Donnes, and Mrs. Donnes did not become aware of the order until August, 1977. On August 16, 1977, Mrs. Donnes appealed Superintendent Kotar's order to the State Superintendent of Public Instruction. On October 13, 1977, the State Superintendent signed a notice of hearing, scheduling a hearing to be held on October 19, 1977. This October 13th notice of hearing was actually mailed out to the parties on October 17, 1977, two days prior to the hearing. On October 18, 1977, the State Superintendent appointed Corbin Howard, her staff attorney, as hearing examiner, and the hearing was held as scheduled on October 19, 1977. This was a "supplementary hearing" and not a hearing de novo as requested by Mrs. Donnes. The hearing examiner issued his findings of fact, conclusions of law, ten months later on July 6, 1978, and exceptions were filed on behalf of Mrs. Donnes. The State Superintendent filed the final order on November 6, 1978. On December 5, 1978, Mrs. Donnes appealed this decision to the District Court. Upon Respondent State Superintendent's motion to dismiss, the Honorable Gordon R. Bennett ruled: (1) that Mrs. Donnes' appeal to the State Superintendent was timely filed; (2) that Mrs. Donnes was not entitled to a hearing de novo before the State Superintendent; (3) that the Montana Administrative Procedure Act, Section 2-4-101 et seq., MCA, applies to teacher appeals; and (4) that the State Superintendent's motion to dismiss her appeal was denied. On November 1, 1979, Judge Bennett withdrew from the case and the Honorable William J. Speare was substituted. None of the parties were notified of the substitution at that time, due to an oversight by the Clerk of Court's office in failing to mail copies to any of the parties. After further preliminary matters the case was submitted for the court's decision on June 13, 1980, the District Court denied the State Superintendent's "renewed" motion to dismiss on January 21, 1982, and also denied Mrs. Donnes' motion for a supplemental hearing before the District Court to take supplemental evidence on procedural irregularities as permitted by Section 2-4-704, MCA. The court then set a final briefing schedule and the matter was submitted March 31, 1982 for the final decision by that court on January 13, 1983. Of the three issues set forth in the appeal, I feel that all are of the utmost importance, but in view of the fact that the majority uphold the procedures followed herein, I will direct my comments to the first two issues, that of the administrative and court decision upon which the appeal was based being fatally defective under the Montana Administrative Procedure Act and therefore erroneous, and the due process question raised on the second issue. It is my opinion that the standard of review for the Montana Administrative Procedure Act (MAPA) as applied to teachers' appeals was set forth in Yanzick v. School District No. 23 Mont . at 387. In Yanzick this Court stated, "Under this section, [2-4-704, MCA] the District Court may not substitute its judgment for that of the County Superintendent as to the weight of the evidence on questions of fact." Therefore, Yanzick requires that the decision of the County Superintendent be the key decision for the judicial review of termination of a tenured teacher. Under Montana law it is clear that the provisions of Section 2-4-623, MCA, apply to the findings and conclusions prepared by both the State and County Superintendents in tenured teacher appeals. Additionally, this Court made clear in Yanzick, supra, our scope of review when the case is presented to us. "We hold that this Court should not substitute its judgment for that of the County Superintendent as to the weight of the evidence on questions of fact and that this Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings and conclusions are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." 641 P.2d at 439, 196 Mont. at 388. In my opinion, in the instant case, the findings of fact and conclusions are defective in a number of instances, and are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." First, the County Superintendent made no findings of fact from the evidence presented before her on the May 10, 1977 hearing. Her findings of fact concerned solely the procedural events which preceded that hearing. She ignored the elementary facts before her and made no comment on the weight she placed upon those facts as required by Section 2-4-623, MCA. Nor was the deficiency corrected by either her findings of fact and conclusions of law, or her order which states her conclusion that "substantial evidence" existed, without indication as to what the substantial evidence was. I note that the sole witness before the State Superintendent was Mrs. Donnes. No witnesses for the Board of Trustees appeared before the State Superintendent. Thus, the State Superintendent was not in the position of "trier of fact;" she did not have the benefit of hearing all the witnesses. What she did in my opinion, is precisely what Section 2-4-704(2), MCA, forbids: she attempted, by issuing her own findings of fact, to substitute her judgment on evidentiary questions for that of the County Superintendent. These after-the-fact findings do not correct the glaring and totally deficient hearings of this County Superintendent. The Carbon County Superintendent's decision, therefore, is the central decision upon which the validity of this case rests, and is in my opinion entirely defective and clearly erroneous. Here, the County Superintendent never ruled on the weight of the evidence presented by the Principal of the school, Mr. Gist. The list of complaints that Mr. Gist presented contained the "substance" of most of his testimony. This was objected to by Mr. Worswick, the MEA representative, who on a two day notice appeared to assist Mrs. Donnes in her difficulties and who made the objection that the testimony was hearsay. In addition the County Superintendent's decision is in my opinion defective because she failed to rule on Mrs. Donnes' proposed findings and conclusions, as required by Section 2-4-Q23(4), MCA. Also, under Section 2-4-704(2) (c) , MCA, the County Superintendent's decision was "made upon unlawful procedure," because she did not clearly follow the statutory decision-making requirements of Section 2-4-623, MCA, in that she failed to make findings of fact, failed to cite authorities, failed to give reasoned opinions and failed to rule on Mrs. Donnes' proposed findings and conclusions. In addition she did not make findings of fact on issues essential to the decision, even though the proposed findings and conclusions were submitted on behalf of Mrs. Donnes. More important, I find that the evidence here is incredible upon which to base a finding of fact and conclusion upon. Although several witnesses appeared to testify on Board procedures only two, Mr. Gist and Mrs. Marcuson, appeared to testify on substantial natters concerning Mrs. Donnes. In regard to Mrs. Marcuson, she is the mother of a student who had some difficulties in the appellant's class due to alleged discipline complaints. Mrs. Marcuson's husband, was a member of the School Board who was present and voted on April 11, 1977, to terminate the services of Mrs. Donnes. The relationship between the School Board member and Mrs. Marcuson, is in my opinion, a very telling factor in the unfair procedure that Mrs. Donnes suffered. Mr. Marcuson was not, although attorney was present for the Board, requested to decline to participate in the proceedings, since his wife was the sole parent to appear, and this to me is fatal. Next for consideration, I feel that the Board's firing of Mrs. Donnes was a violation of due process and a violation of covenant of good faith and fair dealing in the employment c o n t r a c t s . T h i s Court h e l d r e c e n t l y i n G a t e s v. L i f e of Montana I n s . Co. (Mont. 1 9 8 2 ) , 638 P.2d 1063, 1067, 39 St.Rep. 16, 20, t h a t t h e r e is a covenant of good f a i t h and f a i r d e a l i n g i n employment c o n t r a c t s . That good f a i t h i n my o p i n i o n should be a p p l i c a b l e t o a tenured t e a c h e r c a s e . I n t h e i n s t a n t c a s e , t h e d e n i a l s of good f a i t h , f a i r d e a l i n g s and due p r o c e s s a r e numerous and a p p a l l i n g . I f i n d t h a t t h e Board of T r u s t e e s ' procedures i n t h e A p r i l 11, 1977, " h e a r i n g " d o n o t come even c l o s e t o meeting t h e elementary and fundamental p r i n c i p l e s of a j u d i c i a l i n q u i r y . Nor was t h e " t r u t h o r f a l s i t y " of t h e c h a r g e s a g a i n s t Mrs. Donnes e v e r proven, a s r e q u i r e d by a long s e r i e s of c a s e s f o l l o w i n g S t a t e ex rel. Howard v. I r e l a n d ( 1 9 4 3 ) , 114 Mont. 488, 495, 138 P.2d 569. I t may w e 1 1 b e t h a t t h e time f o r Mrs. Donnes' d e p a r t u r e from t e a c h i n g t h e s i x t h g r a d e , one of t h e most d i f f i c u l t g r a d e s i n t h e school system, had come. However, s h e gave t h e b e s t p a r t of h e r l i f e t o t h e s c h o o l system, and s h e was e n t i t l e d t o more t h a n a shanghai o p e r a t i o n t o t e r m i n a t e her s e r v i c e s . I would r e v e r s e and remand t o t h e County S u p e r i n t e n d e n t f o r a f u l l h e a r i n g on t h i s m a t t e r .

November 23, 1983

c1082bc9-a3a9-4a3d-b7ac-96cbd833f47d

STATE v GRAY

N/A

83-004

Montana

Montana Supreme Court

NO. 83--04 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 STATE OF MONTANA, Plaintiff and Respondent, -vs- JAMES E. GRAY, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Ravalli, The Honorable H. William Coder, Judge presiding. COUNSEL OF RECORD: For Appellant: John E. Riddiough argued, Missoula, Montana For Respondent: Mark Murphy argued, County Prosecutor Services, Helena, Montana -- Submitted: October 25, 1983 Decided: December 23, 1983 - - . Clerk 2.1~. Chief J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court. Following a j u r y t r i a l i n t h e D i s t r i c t C o u r t o f R a v a l l i C o u n t y , d e f e n d a n t was c o n v i c t e d o f c r i m i n a l m i s c h i e f , a f e l o n y , by r e a s o n of damaging a p i c k u p w i t h t h e p u r p o s e of d e f r a u d i n g an i n s u r e r . Defendant a p p e a l s from t h e judgment of c o n v i c t i o n . T h i s is a n a p p e a l f o l l o w i n g t h e second t r i a l of t h i s c a s e . T h i s C o u r t r e v e r s e d t h e f i r s t c o n v i c t i o n of d e f e n d a n t f o r p r o c e d u r a l e r r o r s i n a d m i t t i n g " o t h e r crimes" e v i d e n c e . S t a t e v. Gray (Mont. 1 9 8 2 ) , 643 P.2d 233, 39 St.Rep. 622. The p r e s e n t c a s e is a r e t r i a l of d e f e n d a n t on t h e o r i g i n a l c h a r g e b e f o r e a d i f f e r e n t judge and j u r y . I n e s s e n c e , t h e S t a t e ' s e v i d e n c e i n d i c a t e d t h a t d e f e n d a n t con- s i d e r e d h i s pickup a "lemon" and wanted t o g e t r i d of it; t h a t h i s i n s u r a n c e on t h e p i c k u p was b e i n g c a n c e l l e d e f f e c - t i v e August 31, 1980; t h a t on August 28, he i n t e n t i o n a l l y d r o v e t h e v e h i c l e over a s t e e p bank on t h e Skalkaho road t o c o l l e c t t h e i n s u r a n c e ; t h a t d e f e n d a n t a n d o n e S t e p h e n Forsman concocted a s t o r y t h a t d e f e n d a n t was f o r c e d o f f t h e road by a t r u c k h a u l i n g a h o r s e t r a i l e r ; t h a t t h e r e a f t e r t h e i n s u r a n c e a d j u s t e r determined t h a t t h e p i c k u p was n o t a t o t a l l o s s b u t was r e p a i r a b l e ; and t h e r e a f t e r one T e r r y A t k i n s v a n d a l i z e d t h e p i c k u p w i t h d e f e n d a n t d r i v i n g A t k i n s t o its l o c a t i o n and a c t i n g a s a l o o k o u t . D e f e n d a n t ' s e v i d e n c e e s s e n t i a l l y c o n s i s t e d o f a r e f u t a t i o n of t h e S t a t e ' s e v i d e n c e by impeachment of t h e S t a t e ' s w i t n e s s e s t o g e t h e r w i t h d e f e n d a n t ' s t e s t i m o n y concerning t h e e v e n t s i n q u e s t i o n . B a s i c a l l y , d e f e n d a n t t e s t i f i e d t h a t he l e f t h i s t r a i l e r on t h e evening of August 28 in a rage to drive up to Skalkaho Falls to cool off; that he did not like Stephen Forsman and was mad at his step- daughter Leala for running around with Forsman; that they followed him in another vehicle and when he looked over his shoulder to see if they were still following him, his pickup went over the bank on the Skalkaho road and injured him; that the story about being forced off the road by a truck and horse trailer was entirely the invention of Stephen Forsman but he went along with it to protect Forsman. Defen- dant denied any complicity in later vandalizing his pickup and denied prior knowledge of cancellation of the insurance on his pickup. Defendant advances three specifications of error: 1. Defendant is entitled to a new trial because of prosecutorial misconduct resulting in the admission in evidence of defendant's parole status. 2. The refusal of the court to instruct the jury on the lesser included offense of unsworn falsification to authorities, a misdemeanor, constitutes reversible error. 3. The admission of photographs of defendant's truck after it had been vandalized constitutes reversible error. At a hearing in chambers on the first day of trial, the following colloquy took place between the opposing attorneys concerning defendant's parole status: "MR. RIDDIOUGH: I would have one final request, Your Honor, and that would be with regards to the fact that Mr. Gray was on parole at the time that this offense was allegedly committed and I would request that the State caution its witnesses before testimony to not mention during their testimony anything regarding any prior convictions or any parole or parole revocation. "THE COURT: Mr. Murphy? "MR. MURPHY: Your Honor, i n t h e t r i a l of t h e f i r s t c a s e Mrs. Townsend took g r e a t p a i n s t o s a n i t i z e t h e r e c o r d of Mr. G r a y ' s p r e v i o u s r e c o r d . I n f a c t , t h e r e is an i n d i c a t i o n on t h e p a r t of James B a i l e y t h a t he r e f u s e d t o answer a ques- t i o n p u t t o him by Mrs. Townsend concern- i n g what he d i d n e x t . What he d i d n e x t was c o n t a c t Ralph F i s h e r , t h e Defendant's p a r o l e o f f i c e r . W e w i l l a g a i n a t t e m p t t o s a n i t i z e t h e r e c o r d o f a n y o f t h o s e r e f e r e n c e s and I w i l l c a u t i o n my w i t - n e s s e s and a t t e m p t t o avoid any mention of t h a t . "MR. RIDDIOUGH: T h a t ' s s u f f i c i e n t f o r me. "THE COURT: Okay." Leala Gray, d e f e n d a n t ' s s t e p d a u g h t e r , was c a l l e d a s a w i t n e s s i n t h e S t a t e ' s case-in-chief. During d i r e c t examina- t i o n by t h e p r o s e c u t o r , t h e f o l l o w i n g exchange took p l a c e r e g a r d i n g Stephen Forsman, a n o t h e r of t h e S t a t e ' s w i t n e s s e s : "(2. And s o you proceeded back. Did you t a l k about anything else on t h e way back? A. Well, S t e v e was mumbling a b o u t , what am I going t o do. I d o n ' t want t o be i n t r o u b l e . I d o n ' t want t o g e t involved. "Q. Did t h a t make s e n s e t o you? A. Yeah. "Q. How d i d you f e e l t h a t he would be i n t r o u b l e ? A. The c o n v e r s a t i o n a t d i n n e r - time would make him f e e l l i k e he could p o s s i b l y g e t i n t r o u b l e . Q . With your f a t h e r , w i t h t h e a u t h o r i - t i e s , what kind of t r o u b l e ? A. W e l l , s e e , what we t a l k e d about a t d i n n e r t i m e was t h e t r o u b l e we've been having w i t h t h e brown t r u c k and t h e argument dad h a s with C&M Arrow and him being on p a r o l e and he knew t h a t s i n c e dad wrecked t h e t r u c k , t h a t would a f f e c t h i s p a r o l e and t h a t would b r i n g i n t h e law and S t e v e d i d n ' t l i k e t h e law -- d o e s n ' t l i k e t h e law. '' L a t e r , d u r i n g t h e same examination of t h i s w i t n e s s by t h e p r o s e c u t o r i n t h e S t a t e ' s c a s e - i n - c h i e f , t h e f o l l o w i n g exchange took p l a c e : "Q. Okay. But you t o l d t h i s s t o r y t o O f f i c e r B a i l e y because you d i d n ' t want t o l i e ; is t h a t r i g h t ? A. Because I wanted t o h e l p S t e v e s t a y o u t of t h e scene of t h i s whole t h i n g . I g u e s s t h e word I ' m looking f o r is cover f o r S t e v e . "Q. And what had S t e v e done wrong? A. W e l l , he t o l d them t h a t t h e r e was a t r u c k and t r a i l e r involved t h a t w a s n ' t . "Q. And h e t o l d them t h a t because he was a f r a i d he was going t o g e t i n t r o u b l e ? A. Uh-huh. "Q. For what? A. Because h e knew a b o u t t h e argument my dad had w i t h C&M over t h e t r u c k and h e a l s o knew t h a t my dad was on p a r o l e . 'I A t t h e c o n c l u s i o n of t h e d i r e c t examination of L e a l a Gray, a p p e l l a n t moved f o r a m i s t r i a l i n chambers o u t s i d e t h e p r e s e n c e of t h e j u r y based upon t h e e l i c i t i n g of t h e testi- mony of d e f e n d a n t ' s p a r o l e s t a t u s by t h e p r o s e c u t o r a s i n d i c a t e d above. The c o u r t d e n i e d t h e motion f o r m i s t r i a l b u t gave a c a u t i o n a r y i n s t r u c t i o n a s f o l l o w s : "Ladies and gentlemen of t h e j u r y , you have r e c e i v e d some testimony i n t h i s c a s e t h a t t h e accused, James Gray, was on p a r o l e a t t h e time t h a t t h e e v e n t s o c c u r r e d i n t h e i n s t a n t c a s e . "You a r e i n s t r u c t e d t o e n t i r e l y d i s r e g a r d s u c h t e s t i m o n y . The s t a t u s o f t h e a c c u s e d i s t o t a l l y i r r e l e v a n t a n d i m m a t e r i a l t o a n y i s s u e i n t h e c a s e b e f o r e you and t o c o n s i d e r such t e s t i m o n y i n your d e l i b e r a t i o n s would be v i o l a t i v e o f your o a t h s a s j u r o r s . " Defendant c o r r e c t l y p o i n t s o u t t h a t t h e p r o s e c u t o r b r e a c h e d h i s p r o m i s e t o c a u t i o n L e a l a G r a y a g a i n s t mentioning h e r s t e p f a t h e r ' s p a r o l e s t a t u s . A d d i t i o n a l l y , q u e s t i o n s were asked on two o c c a s i o n s d u r i n g L e a l a G r a y ' s d i r e c t examination by t h e p r o s e c u t o r t h a t e l i c i t e d t h e f a c t t h a t d e f e n d a n t was on p a r o l e . Defendant a r g u e s t h a t t h e evidence that he was on parole at the time of the commission of the crime charged is evidence of other crimes that must pass both the test of admissibility and the test of proper notice before it can be introduced in evidence. State v. Just (1979) 184 Mont. 262, 602 P.2d 957; State v . Case (Mont. 1980), 621 P.2d 1066, 37 St.Rep. 2057; State v . Gray (Mont. 1982), 643 P.2d 233, 39 St.Hep. 622. Additionally, the prosecutor stated that he purposely did not talk to Leala Gray prior to her testimony, although he had promised to caution her against disclosing her step-father's parole status. It is clear that misconduct by a prosecutor may form the basis for granting a new trial where the prosecutor's actions have deprived defendant of a fair and impartial trial. State v. Bain (1978), 176 Mont. 23, 575 P.2d 919; State v. Toner (1953), 127 Mont. 283, 263 P.2d 971; State v. Hart (Mont. 1981), 625 P.2d 21, 38 St.Rep. 133. The prosecution admits that it breached its promise to caution Leala Gray against disclosing her father's parole status during her testimony. The prosecution argues that the State did not intentionally fail to warn Ms. Gray not to mention her stepfather's parole status; that the State did not purposely elicit from her the testimony concerning her stepfather's parole status; that any prejudice caused by the mention of defendant's status was eliminated by the court's cautionary instruction; and that defense counsel had more than an equal opportunity by virtue of numerous contacts with Leala Gray to prevent this error by warning her himself and that defense counsel also failed to warn her. The State also argues that the error was harmless in any event. W e f i n d no excuse f o r t h e f a i l u r e of t h e p r o s e c u t i o n t o warn L e a l a Gray n o t t o mention h e r s t e p f a t h e r ' s p a r o l e s t a t u s a s t h e p r o s e c u t o r had promised. However, w e h o l d t h a t under t h e c i r c u m s t a n c e s of t h i s c a s e t h e District C o u r t d i d n o t abuse i t s d i s c r e t i o n denying t h e motion f o r mistrial f o r t e s t i m o n y concerning d e f e n d a n t ' s p a r o l e s t a t u s . Rule 4 0 3 , Mont.R.Evid., p r o v i d e s t h e e x c l u s i o n o f r e l e v a n t e v i d e n c e t h a t may p r e j u d i c e t h e j u r y . However, a s recognized by t h e Commission on Evidence, "a key e l e m e n t of t h i s r u l e is t h e d i s c r e t i o n of t h e judge i n d e c i d i n g whether o t h e r w i s e r e l e v a n t e v i d e n c e is t o be excluded." I n S t a t e v. R o l l i n s ( 1 9 6 7 ) , 149 Mont. 481, 428 P.2d 462, t h i s C o u r t h e l d t h a t on q u e s t i o n s of t h i s n a t u r e , t h e " t r i a l judge s h o u l d have l a t i t u d e of d i s c r e t i o n . " 149 Mont. a t 484; s e e a l s o , S t a t e v. Austad (Mont. 1 9 8 2 ) , 641 P.2d 1373, 39 St.Rep. 356; S t a t e v. Azure ( 1 9 7 9 ) , 1 8 1 Mont. 47, 591 P.2d 1125; W a l l i n v. Kenyon E s t a t e ( 1 9 7 4 ) , 164 Mont. 160, 519 P.2d 1236. A s a m a t t e r of law, w e c a n n o t hold t h a t t h e D i s t r i c t C o u r t abused its d i s c r e t i o n i n denying t h e motion f o r a m i s t r i a l . F i r s t o f a l l , t h e j u d g e s t a t e d t h a t f r o m o b s e r v a t i o n o f t h e j u r y , t h e i m p a c t o f L e a l a G r a y ' s t e s t i m o n y c o n c e r n i n g t h e d e f e n d a n t ' s p a r o l e s t a t u s was minimal. Also, t h e c o u r t c a u t i o n e d t h e j u r y t o d i s r e g a r d a l l e v i d e n c e o f d e f e n d a n t ' s p a r o l e s t a t u s a s it was i r r e l e v a n t and i m m a t e r i a l w h i c h c u r e d a n y r e s u l t i n g p r e j u d i c e t o him. Furthermore, w e r e c o g n i z e t h a t p r e j u d i c e w i l l n o t b e presumed; it must be e s t a b l i s h e d from t h e r e c o r d t h a t a s u b s t a n t i a l r i g h t was d e n i e d . S e c t i o n 46-20-701, MCA; S t a t e v. Wells (Mont. 1 9 8 3 ) , 658 P.2d 381, 40 St.Rep. 127; S t a t e v. Dupre (Mont. 1982), 650 P.2d 1381, 39 St.Kep. 1660. The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the conviction. State v. Wells, supra; State v. Lave (1977), 174 Mont. 401, 571 P.2d 97; also see, Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Here, Leala Gray was a hostile witness for the State. She, unlike a law enforcement officer, had no motive to secure her stepfather's conviction. The State had no influ- ence over her testimony. The evidence supporting defendant's conviction was substantial, if not overwhelming. Although there were many attempts to impeach various witnesses for both the State and the defendant during the trial, the defendant's version of events is simply incredible. It was refuted by witnesses Forsman, Atkins, Leala Gray and to some extent by the highway patrolman and the nurse at the hospital. We hold that the totality of circumstances shows no reasonable possibility that the inadmissible evidence might have contributed to defendant's conviction. Directing our attention to the second specification of error, we note that the court refused to give defendant's offered instruction on unsworn falsification to authorities, a misdemeanor. We further note that an identical instruction had been accepted and given by the court in appellant's first trial. Defendant argues that the District Court's instruc- tions must cover every issue or theory having support in the evidence, and the inquiry of the District Court must only be whether o r n o t any e v i d e n c e e x i s t s i n t h e r e c o r d t o w a r r a n t an i n s t r u c t i o n . S t a t e v. Buckley ( 1 9 7 6 ) , 1 7 1 Mont. 238, 557 P.2d 283; S t a t e v. Bouslaugh ( 1 9 7 8 ) , 176 Mont. 78, 576 P.2d 261. The crime w i t h which d e f e n d a n t was charged r e a d s as f o l l o w s : "45-6-101. C r i m i n a l m i s c h i e f . (1) A p e r - son commits t h e o f f e n s e of c r i m i n a l m i s - c h i e f i f h e knowingly o r p u r p o s e l y : " ( c ) damages o r d e s t r o y s p r o p e r t y w i t h t h e purpose t o d e f r a u d a n i n s u r e r ; " The misdemeanor o f f e n s e of unsworn f a l s i f i c a t i o n t o a u t h o r i t i e s p r o v i d e s t h a t a p e r s o n commits t h a t o f f e n s e i f w i t h a p u r p o s e t o m i s l e a d a p u b l i c s e r v a n t i n performing h i s o f f i c i a l f u n c t i o n , he u t i l i z e s a w r i t i n g i n a manner by which t o m i s l e a d . S e c t i o n 45-7-203, MCA. Where t h e same a c t o r t r a n s a c t i o n c o n s t i t u t e s a v i o l a - t i o n of two d i s t i n c t s t a t u t o r y p r o v i s i o n s , t h e t e s t t o b e a p p l i e d t o d e t e r m i n e whether t h e r e a r e two o f f e n s e s o r o n l y one is whether each p r o v i s i o n r e q u i r e s proof of a f a c t which t h e o t h e r d o e s n o t . Blockburger v. United S t a t e s ( 1 9 3 2 ) , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Here, t h e e l e m e n t s o f t h e c r i m e o f unsworn f a l s i f i c a t i o n t o a u t h o r i t i e s a r e n o t r e q u i r e d t o be proved t o e s t a b l i s h t h e crime of c r i m i n a l m i s c h i e f . To d e t e r m i n e i f one crime is a lesser i n c l u d e d o f f e n s e of a n o t h e r , t h e s t a t u t o r y e l e m e n t s o f t h e r e s p e c t i v e o f f e n s e s , n o t t h e f a c t s of t h e i n d i v i d u a l c a s e , c o n t r o l . Blockburger v. United S t a t e s , s u p r a . A s i m p l e r e a d i n g of t h e two s t a t u t e s makes it c l e a r t h a t t h e e l e m e n t s n e c e s s a r y t o c o n s t i t u t e t h e two crimes a r e s e p a r a t e and d i s t i n c t , having l i t t l e i n common. F i n a l l y , d e f e n d a n t a r g u e s t h a t he is e n t i t l e d t o a new t r i a l because s e v e r a l photographs of d e f e n d a n t ' s damaged p i c k u p a f t e r it had been v a n d a l i z e d were a d m i t t e d i n e v i - dence. Defendant c o n t e n d s t h a t a s he had n o t been charged w i t h committing t h e vandalism t h e p h o t o g r a p h s were e v i d e n c e of o t h e r c r i m e s . I n s u b s t a n c e d e f e n d a n t s a y s t h a t t h e e v i - dence s h o u l d have been excluded a s its p r o b a t i v e v a l u e was s u b s t a n t i a l l y outweighed by t h e danger of u n f a i r p r e j u d i c e , c o n f u s i o n of t h e i s s u e s , o r m i s l e a d i n g of t h e j u r y as s e t f o r t h i n Rule 403, Mont.R.Evid. Also see, S t a t e v. Azure ( 1 9 7 9 ) , 1 8 1 Mont. 47, 591 P.2d 1125; S t a t e v. R o l l i n s ( 1 9 6 7 ) , 149 Mont. 481, 428 P.2d 462. Defendant a r g u e s t h a t t h e p r o b a t i v e v a l u e of t h e s e p h o t o g r a p h s was minimal a s t e s t i m o n y r e g a r d i n g t h e v a n d a l i z i n g o f t h e p i c k u p w a s e l i c i t e d from s e v e r a l w i t n e s s e s i n t h e c a s e . Defendant a r g u e s t h a t under S t a t e v. B i s c h e r t ( 1 9 5 7 ) , 131 Mont. 152, 308 P.2d 969, and Azure, s u p r a , t h e e v i d e n c e should n o t have been a d m i t t e d and he is e n t i t l e d t o a new t r i a l . The S t a t e c o u n t e r s by a d m i t t i n g t h a t t h e p i c t u r e s d o c o n t a i n e v i d e n c e of o t h e r crimes b u t t h a t a p r o p e r n o t i c e o f t h e same was g i v e n t o t h e d e f e n d a n t a s r e q u i r e d by S t a t e v. J u s t ( 1 9 7 9 ) , 184 Mont. 262, 602 P.2d 957. The S t a t e a r g u e s t h a t t h e p i c t u r e s show t h e damage done i n b o t h i n c i d e n t s and t h e y were a d m i t t e d t o c o r r o b o r a t e t h e S t a t e ' s t h e o r y on motive of t h e d e f e n d a n t . They were n o t gruesome and would n o t i n f l a m e t h e j u r y . I n our view t h e p i c t u r e s were p r o p e r l y a d m i t t e d i n t h e d i s c r e t i o n of t h e t r i a l c o u r t a s proof o f motive of t h e de- f e n d a n t and t h e r e f o r e t h e i r p r o b a t i v e v a l u e w a s s u b s t a n t i a l and was n o t outweighed by p r e j u d i c e t o t h e d e f e n d a n t . A£ £ irmed. W e concur: Justices Mr. Justice Daniel J. Shea, dissenting: I dissent. I would grant a new trial. The trial court in effect granted a verbal motion in limine directing the State not to present evidence that d.efendant was on parole. Although the State agreed that it would caution each of its witnesses not to maintain that defendant was on parole, the State deliberately chose not to talk to one of its witnesses before calling her to the witness stand. This witness therefore, was not warned that she must not mention that defendant was on parole. The witness twice (or three times) testified that defendant was on parole. The admission of this evidence in violation of a court order excluding such evidence, is presumptively prejudicial. The State has failed to demonstrate that this prejudicial evidence did not affect the outcome of the trial and therefore J would grant a new trial. It makes no difference whether the State deliberately elicited the forbidden testimony or inadvertently did so. The harm to the defendant is the same in either case. It can hardly be denied that evidence that a defendant has already been convicted of a felony is prejudicial. to his trial. It was the State's burden, once this inadmissible and prejudicial testimony was admitted, to prove a lack of reasonable possibility that the inadmissible evidence contributed to the conviction. Chapman v. California (1-967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The State failed in this burden and this Court, therefore, has the duty of reversing the conviction and ordering a new trial. If the State had tactical reasons for not talking to witness Leala Gray before she testified, the State nonetheless was not freed from its duty of warning this witness not to testify that defendant was on parole. The State still had a method by which this witness could be given the admonition. Just before the witness testified, the State could have asked for a court conference in chambers, and then the witness could have been called in to chambers, and, at the State's request, the court could have warned the witness not to testify that defendant was on parole. But this was not done and the defendant should not have to bear the burden of the State's omission by having to satisfy this Court that the prejudicial evidence was considered in the jury's deliberations. Rather, it was the duty of the State to show that it was not considered. I further emphasize that the procedural context of the issue of defendant's being on parole, does not lead me to the conclusion that the prosecutor's conduct was as white as the driven snow. Defense counsel undoubtedly made the motion in limine because he knew that defendant's status a . s a parolee was bound to be injected into the trial. He knew this because of the record of the first trial and because of the investigation made before trial that indicated defendant's parole status was discussed. Therefore, before trial began, he made the verbal motion in limine. When witness Leala Gray in a nonresponsive answer to the State, first mentioned that defenda.nt was on parole, defense counsel d.id not then move for a mistrial, undoubtedly because of the fear of further emphasizing the forbidden evidence. But later in the witnesses redirect examination, she again mentioned that defendant was on parole. Again, d-efense counsel d.id not immediately move for a mistrial. Instead., he waited. until her examination had concluded and then he moved in chambers, for a mistrial because the forbidden evidence was placed before the jury. The trial court denied the motion but upon coming into the courtroom, gave the iury the cautionary admonition quoted by the majority. This cautionary instruction did not, however, cure the error, for the error was committed by the State. This error was presumptively prejudicial, and the State has not overcome this presumption of prejudice by a demonstration that the jury disregarded the fact that he was already a convicted felon. When defense counsel made his verbal motion in limine to forbid the mentioning that defendant was on parole, the prosecutor expressed his displeasure, but nonetheless expressed that he would go along with the efforts to "sanitize" the trial just as the State had made efforts to "sanitize" the first trial. It appears, however, that in bringing in the forbidden evidence, the State was not quite as white as the driven snow. The State knew that the witness most likely to bring in defendant's status as a parolee was Leala Gray, and she is the one witness who the State deliberately did not talk to before trial thereby avoiding warning the witness not to mention that defendant was on trial. Although the State asserts its noncomplicity in bringing the forbidden evidence before the jury, the context of the questioning leads me to believe that the assertion of innocence cannot stand. The first question asked by the prosecutor appears to be innocent enough, and Leala Gray's answer also appears to be nonresponsive. Nonetheless, they told the jury defendant was on parole and the State could have prevented this from happening (or at least done its part in doing so) by moving i . n chambers to have the court warn her not to mention that defendant was on parole. But the State chose not to do so and therefore viola-ted the order compelling the State to warn each of its witnesses. Later, in the redirect examination of Leala Gray, the prosecutor again asked questions of Leala Gray that no longer smack of innocence. The prosecutor asked the witness a second time about witness Stephen Forsman's fears that he would be in trouble. "Q. And he [Steve Forsman] told them [the authorities] that he was afraid he was going to get in trouble? A. Uh-huh. "Q. For what? A. Because he knew about the argument my dad had with C&M over the truck and he -- also knew that my dad was on parole." --- --- This second series of questions was asked after the witness had already, during the first series of questions, di.sclosed that defendant was on parole. By this time, the prosecutor was on notice that the witness was likely to again mention that defendant was on parole if the same kind of questions were directed to her. The prosecutor could only expect tha.t the same kind of question asked a second time would again elicit the same response--that defendant was on parole. And it did. For these reasons, I cannot look a the prosecutor's conduct as being a.s white as the driven snow. Here the jury had evidence before it that defendant had already been convicted of a felony, for his being on parole could lead only to that conclusion. It was axiomatic that admission of the defendant's previous criminal record is prejudicial. See Rule 404x(b), Mont.R.Evid., and the comments to that rule. The prejudice to defendant is increased where the evidence is admitted without any legal basis to support its admission. And that is precisely the situation here. It makes little sense to then impose the burden on the defendant to prove that the inadmissible and prejudicial evidence adversely affected the outcome of his trial. But that is what the majority has done here. The majority punishes the wrong party for the infraction of the trial court's order that certain evidence not be given to the jury. The majority has imposed an impossible burden on the defendant, a result hardly in accord with sound and fair rules of trial and. a-ppellate procedure. I next attempt to cut through the fog of the majority holding that admission of defendant's criminal record was harmless error. It is a difficult job because the fog is thick. In reviewing defendant's claim of error, the majority purports to be guided by Chapman v. California (1967), 386 U.S. 1-8, 87 S.Ct. 824, 17 L.Ed.2d 705, in stating the "test - - of prejudicial error." The majority states that the test is - "whether there is a reasonabl-e possibility the inadmissible evidence might have contributed to the conviction." (Emphasis added. ) And yet the majority did not analyze the evidence in light of this test to determine whether the admitted inadmissible and prejudicial evidence might have infected the jury's verdict. Instead, the majority seeks several reasons to justify its decision not to reverse. First, the majority relies on the decision of the trial court refusing to grant a new trial. It is common, of course, for trial courts to refuse motions for new trials. And, once the trial court decided not to grant the motion he had to conclude that the inadmissible and prejudicial evidence had minimal. impact on the jury. He couldn't very well say the evidence had a great impact on the jury and still refuse to grant the motion for mistrial. I doubt, furthermore, tha.t the trial courtt s observations in this situation should be given much weight. The jury did not have to drop its teeth before the trial court concluded the evidence would adversely affect their deliberations. Second, the majority uses the standard ruling where a conviction is to be affirmed--the cautionary instruction given by the tria.1 court cured all. Yet we all know that once the knife is plunged in, a cautionary instruction does not cure all. The point is that the State, through questioning its witness, put the evidence before the jury that the defenda.nt was already a convicted felon. A cautionary instruction could not withdraw that information from the jury's mind. Third, the majority engages in a remarkable reversal of roles when it holds that even though the evidence was prejudicial, the duty is nonetheless imposed on the defendant to show that the offending evidence contributed to his conviction. The only way he could do this in a normal case would be to produce jury affidavits, and this is normally an impermissible method of demonstrating prejudice. Moreover, once the jury convicted, jurors would be reluctant to admit that the inadmissible evidence played a part in their decision to convict. Fourth, the majority concludes that Leala Gray was a hostile witness because she would have no motive to secure her stepfather's conviction. The fact is, however, that she a.nd her boyfriend Stephen Forsman testified at the first trial, and neither of them were called as hostile witnesses. And neither were they called as hostile witnesses by the State in the second trial. The implication is that Leala Gray purposely sought to produce a mistrial by testifying that her stepfather-defendant was on parole. Rut the evidence does not support that conclusion. A fair reading of the trial transcript indicates that the State was more than happy to get before the jury the fact that defendant was already a convicted felon. If the State did not want this information before the jury, it certainly did nothing to prevent it, and therein lies the evil of the majority holding. The State is given the benefit of its deliberate choice not to warn Leala Gray that she must not testify that the defendant was on parole. This choice flew in the face of the trial court's order. Fifth and finally, we get to the catch-all-, the apparent real justification for upholding the conviction. Apparently with Chapman 7 7 . California, supra, in mind, the majority declares : "The evidence supporting defendant's conviction was substantial, if not overwhelming." If the evidence of defendant's guilt was overwhelming, it was the duty of the majority to set forth a.11 of that evidence to describe its overwhelming character. On the other hand, if the evidence of defendant's guilt was only "substantial," then the conviction cannot be affirmed by an application of the harmless error rule. Substantial evidence is required to affirm any criminal conviction challenged for legal sufficiency of the evidence, and substantial evidence is not enough to avoid a reversal based on application of the test set forth in Chapman v. California. I would vacate the iudgment and order a new trial.

December 23, 1983

ac19ed1e-bb5c-4fca-b209-145bbb6352e1

State v. Johnson

424 P.2d 728

11157

Montana

Montana Supreme Court

424 P.2d 728 (1967) The STATE of Montana, Plaintiff and Respondent, v. Bruce A. JOHNSON, Defendant and Appellant. No. 11157. Supreme Court of Montana. Submitted January 13, 1967. Decided March 6, 1967. *729 John M. McCarvel, Great Falls, for appellant. Charles F. Moses, Billings, Oscar Hendrickson (argued), Chinook, John Cavan (argued), Billings, for respondent. CASTLES, Justice. This is an appeal from a judgment of conviction of five counts of grand larceny. The judgment sentenced the defendant to five years imprisonment on each count, and on the last two counts, the sentence of five years was to run concurrently with the sentence on the previous counts. The wild west is not dead. The saga of cattle rustling, running irons, brands, dewlaps, wattles, ear marks, cowboys and even Indians giving rise to these facts might well have been written by Zane Grey, the western story author. A brief narrative of the facts testified to will be made before setting forth significant procedural and other matters specified as error. In the spring of 1964 one Robert Long, a neighbor rancher of the defendant, Bruce Johnson, saw the defendant bring in about 100 head of cattle belonging to Wellington D. Rankin. Long was able to identify the animals by their general appearance and by dewlaps on their brisket. Dewlaps were explained as a strip of hide cut to hang free so that it produces a distinctive mark or identifying object. On May 6, he saw cows with a worked-over or altered brand described as a written E bar Y to a reversed B bar K. He noticed more cattle showing up around the 8th or 10th of May with re-worked brands. He testified that he used field glass, 20 x 50 power. In May or June, the ditch rider who passed through defendant's property regularly and was familiar with the Rankin brand, saw worked-over brands on the defendant's ranch. He estimated that he saw about twenty-five head of worked-over branded cattle. He saw one particular whiteface cow whose right hind foot had been frozen in a previous year. The same cow was seen again by the ditch rider in the Havre yards and is one of the cattle with which the defendant is charged as a separate count. *730 On August 4, 1964, Tom Little, a rancher, was in an area in what is designated as the Pauly place. He saw nine cows with the same worked-over brand. He contacted Ted McCrea, a State Livestock Inspector. McCrea, on the following day, "tracked" the cattle to the Pauly lease. An investigation disclosed that the Pauly lease was land being rented by defendant from Pauly. It consisted of both deeded land and Federal lands. Although defendant alone signed the agreement for rental with Pauly, Pauly understood that defendant's brother also was in the agreement. The Federal Agency involved had not approved the subleasing of its lands and were not aware of the cattle being on the premises. However, defendant testified that he had some kind of oral permission from the Coal Creek Grazing District, the state agency responsible for issuing grazing licenses for private lands. In 1963 there was a dispersal sale of all of the defendant's cattle. The explanation given by the defendant for the presence of 162 cows on his property was that they were a herd developed from 10 head which the defendant had set aside in 1955. His alleged purpose was to create a herd to provide funds for his children's college education. None of these cattle appeared on tax assessment rolls, the defendant claiming that this was "unintentional" on his part. There is no doubt that the defendant lawfully acquired the reverse B bar K brand. In 1964 he applied to the Montana Livestock Commission, Department of Marks and Brands for the 8 bar K brand, but was told that it was in conflict with the reverse B bar K owned by Arthur Bollinger of Jordan, Montana. Thereafter the defendant purchased the reverse B bar K brand from Mr. Bollinger, legitimizing the mark, if not the animals to which it was applied. The Bureau of Land Management and Department of the Interior, operating through the Range Conservation Department, are responsible for issuing grazing permits on public lands. This agency also has the duty to check the forage on such property and investigate trespass. Glen Stickley is the Administrator of Public Lands and is employed by the Range Conservation Department. Stickley was informed that there were cattle upon the Pauly lease. Feeling that there was no authority for these cattle to be on the Pauly lease, Stickley, accompanied by Lawrence Johnston, an inspector for the State Livetock Commission, drove to the Pauly lease on September 2, 1964. The cattle were examined and photographed. Upon further inquiry, the defendant told Stickley that the cattle branded with the reverse B bar K belonged to him. Johnston, having years of experience as an inspector of livestock brands, concluded that the cattle on the Pauly lease had altered brands. On September 4, 1964, Johnston obtained a search warrant from Judge Lewis in Chinook directed to Sheriff John Garland. On September 5, 1964, the sheriff and others served the warrant on the defendant and took into custody 157 head from the Pauly place. Five more cows with worked-over brands were found at the defendant's home. Defendant was duly arrested and charged with five counts of grand larceny. In his first specification of error, defendant alleges that the language of the information was not specific enough to inform him of the charge. A cursory examination of the information fails to support this allegation. We find it difficult to believe that the defendant was not adequately apprised of the charges upon which he was arrested. The information was filed directly on leave of court as provided by section 94-4903, R.C.M. 1947. Defendant contends that there is no record of a showing of probable cause before the magistrate who granted leave to file directly. In State v. Vuckovich, 61 Mont. 480, 491, 203 P. 491, 493, this court said: "The right of the court to grant leave to file an information without previous examination by a committing magistrate is *731 settled law in this state. It is authorized by the Constitution (section 8, art. 3), granted by the statute (sections 9105, 8929), and confirmed by numerous decisions of this court * * *." While leave to file an information directly, without a preliminary hearing, cannot be a perfunctory affair, the information in the hands of the prosecuting attorney in this case was overwhelming, as the subsequent trial revealed. The motion to file directly was supported by an affidavit and we can find no error or abuse of the statutory privilege to by-pass the preliminary hearing, particularly when such a hearing would clearly serve no purpose nor secure any advantage to the defendant. The second general specification of error involves the search and seizure of the cattle. Article III, § 7, of the Constitution of Montana provides: "The people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures, and no warrant to search any place or seize any person or thing shall issue without describing the place to be searched, or the person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing." Defendant would have us believe that the manner in which the search and arrest was made violated his rights under the laws and Constitution of Montana and of the United States. We find this charge to be without support. Lawrence Johnston, the livestock inspector, testified that he could discern the worked-over brands before he actually entered the Pauly lease. Furthermore, it was his duty to conduct the type of investigation which occurred. The defendant placed the cattle on open range land where they could be seen by neighbors, ditch-riders, and others who were privileged to enter the property. The type of lease involved, at least with respect to public lands, was a mere license to graze cattle and did not confer exclusive rights of possession upon the defendant. In several Montana decisions, including State v. Ladue, 73 Mont. 535, 237 P. 495, and State v. Arnold, 84 Mont. 348, 275 P. 757, this court has held that open pastures and farm lands are not the type of property which the Constitutions of Montana and the United States intended to protect from unreasonable search and seizure. There is no evidence in the record that the search warrant issued was inadequate. Cattle removed from the vicinity of the defendant's home were taken with his consent. Under the rule of State ex rel. Muzzy v. Uotila, 71 Mont. 351, 229 P. 724, such consent served as a waiver of defendant's right to object to the evidence gained through the search. There is nothing before us to indicate that the sanctity and security of defendant's home or person was violated, and we cannot help but feel that the defendant is grasping after technicalities which have no basis in fact. The defendant also contends that there was a systematic exclusion of Indians from the jury panel. The testimony of the defendant at trial clearly indicates that he was unfamiliar with those qualifications necessary to be a juror. The following excerpt is from the cross-examination of the defendant: "Q. You didn't know what the qualifications were? A. No, only as of sound mind and body. "Q. So the basis of your determination whether they qualified was whether they had real estate or were of sound mind and body and that is all? A. Right." It also developed at trial that the defendant based his charge on an examination of a tax assessment roll for 1965 rather than 1964. The State presented ample evidence of the manner in which the jury list was drawn up. Minor administrative deviations did occur but these fell far short of "systematic exclusion" of Indians. We might note in passing that the defendant is not of Indian extraction, and while this fact is not material in considering whether a representative jury was selected, it does *732 underscore a clear lack of prejudice in the instant case. The final specification of error concerns the manner in which five separate counts of grand larceny were set forth in the information. The five counts were established primarily in terms of manner of proof. One count was alleged for larceny of an old cow with a crippled rear hoof. The second count referred to 15 head, where the identity and the reworking of the brands was particularly pronounced. Count three included 5 head which were found at the Johnson home rather than the Pauly lease. The fourth count referred to the balance of the stolen animals with the exception of one animal contained in count five. This cow was owned jointly by Rankin and Arthur Acher, the difference in ownership being the basis of a separate count. Section 94-6407.1, R.C.M. 1947, permits an information to charge more than one offense in separate counts. In State v. Boe, 143 Mont. 141, 146, 388 P.2d 372, 375, this court said: "The controlling word is offenses, it [section 18, Art. III, Mont.Const.] does not refer to acts, which, by statute, are made one or more separate offenses. The test of `former jeopardy' is whether a verdict of either acquittal or conviction of one or more of the offenses could be imposed as a bar to a prosecution for any of the other offenses charged therein. In this case where the separate acts are set forth as required by statute, clearly each is a separate offense and acquittal or conviction on one or more counts does not affect any of the other." While the Boe decision is factually distinguishable from the case at hand, the citation above states a principle which we feel is applicable. Constitutional requirements of due process will be satisfied if each count in the information states a separate offense. We feel that this requirement is met here. Section 94-2704, subd. (3), R.C.M. 1947, provides: "Grand larceny is larceny committed with a felonious intent in either of the following cases: * * * "3. When the property taken is a stallion, mare, gelding, colt, foal, or filly, cow, steer, bull, stag, heifer, calf, mule, jack, jenny, goat, sheep, or hog." One clear purpose of this section is to render the theft of such animals grand larceny without reference to the value of the animal. We also feel that this section makes the theft of each separate animal a separate and distinct offense. It is obvious that a criminal offense is not defined in terms of the case with which it can be proven at trial. It is also true that ownership of the property of itself does not determine whether an offense has been committed. In State v. Akers, 106 Mont. 43, 74 P.2d 1138, this court has said that while the fraud may be against the owner, the crime is against the state, and that while ownership must be alleged "the allegation does not give character to the act, but is merely a matter of description." But since we have concluded that the larceny of each cow is a separate offense under Montana statute, there was no prejudice to the defendant in the manner in which the five counts were set forth. The evidence presented by the State on the trial of this case left the jury with no choice but to find as it did. A number of highly qualified livestock brand inspectors testified that the brands had been altered. The evidence presented by the State was overwhelming. The altered brands, the securing of the brand that could be used, and all of the other facts added up to ironclad proof of larceny of the cattle. The jury obviously was not satisfied with the defendant's version of the facts. Having carefully reviewed the specifications of error we find them to be without merit, and the judgment is accordingly affirmed. JAMES T. HARRISON, C. J., and ADAIR, DOYLE and JOHN CONWAY HARRISON, JJ., concur.

March 6, 1967

9b65fb0c-7048-481e-893a-05079522f717

Crosby v. Billings Deaconess Hospital

149 Mont. 314, 426 P.2d 217

11174

Montana

Montana Supreme Court

426 P.2d 217 (1967) 149 Mont. 314 James CROSBY, a Minor, by Rev. James B. Crosby, the guardian of his Estate, Plaintiff, v. BILLINGS DEACONESS HOSPITAL, a Corporation, Defendant and Third-Party Plaintiff and Appellant, v. A.M. FULLER and W.H. Cain, as co-partners, doing business as Midwest Leasing Co., Third-Party Defendants and Respondents. No. 11174. Supreme Court of Montana. Submitted February 9, 1967. Decided April 4, 1967. Crowley, Kilbourne, Haughey, Hanson &amp; Gallagher, Michael J. Whalen, George C. Dalthorp (argued), Billings, for appellant. Berger, Anderson &amp; Sinclair, Arnold A. Berger (argued), Billings, for respondents. JAMES T. HARRISON, Chief Justice. This is an appeal from an order granting a motion for summary judgment. There were three parties involved in the district court proceeding which gave rise to this appeal. Only two of these parties are before this court. We will identify the parties since all will be referred to during the course of the opinion. The plaintiff was James Crosby, a minor, by Rev. James B. Crosby, the guardian of his estate. The plaintiff is not before this court. The plaintiff sued the Billings Deaconess Hospital, a corporation, (hereinafter called the hospital) for injuries received when he was burned about his mouth by a TV regulator switch while a patient at the hospital. The defendant hospital filed a cross-complaint against A.M. Fuller and W.H. Cain, co-partners, doing business as Mid-West Leasing Co., (hereinafter *218 called Mid-West) as third-party defendants. Mid-West filed a motion for summary judgment as to the third-party claim against it, and the motion was granted by the district court. The hospital then appealed. After the summary judgment had been granted and prior to the oral argument of this appeal, the hospital and plaintiff entered into an out-of-court settlement of plaintiff's claim against the hospital. The facts of this case are these: James Crosby, a young boy, was a patient in the hospital. His hospital room was equipped with a television set which could be controlled from his bed by means of a TV regulator switch. In some way the young boy inserted the TV regulator switch into his mouth and received an electrical burn about his mouth and lips. The plaintiff's complaint alleged two acts of negligence on the part of the hospital. The complaint's first count alleged that the hospital "through its employees and agents negligently placed in the possession of the plaintiff an electrical control mechanism for the regulation of a television picture, said mechanism being in such a condition that the bare wires thereof came into contact with the flesh about the mouth of the plaintiff." At the time of plaintiff's injury, the television equipment in plaintiff's hospital room was leased by the hospital from Mid-West. The hospital believed that under the terms of this lease agreement it was entitled to file a cross-complaint against Mid-West pursuant to Rule 14(a), M.R.Civ.P., which reads in part: "At any time after commencement of the action a defendant as a third-party plaintiff may cause to be served a summons and complaint upon a person not a party to the action who is or may be liable to such third-party plaintiff for all or part of the plaintiff's claim against him. * * *" The hospital's cross-complaint made the following allegations: (1) that pursuant to a lease between the hospital and Mid-West, Mid-West had installed in, and leased to the hospital, TV equipment, including the TV regulator switch from which the Crosby boy received his burn; (2) that Mid-West had agreed to install all the equipment at its own expense and in good workmanlike manner; (3) that Mid-West was to maintain, service, and repair the equipment; (4) that since the obligation for installing and maintaining the equipment was that of Mid-West rather than that of the hospital, if the TV regulator switch was negligently installed or maintained and, as a result, if the hospital is liable in damages to the Crosby boy, then the hospital is entitled to be indemnified for damages by Mid-West. Rule 56(c), M.R.Civ.P., specifies when a summary judgment should be rendered and reads in part: "* * * The judgment sought shall be rendered forthwith if the pleading, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *" When the district court considered the motion for summary judgment, the only relevant pleadings and admissions on file were these: (1) plaintiff's complaint; (2) the hospital's cross-complaint and answer; and (3) the hospital's admission that the copy of the personal property lease supplied to the district court by Mid-West was a true copy. The question presented by this appeal is whether the district court committed error in granting the motion for summary judgment. The hospital's position in this appeal is explained in its brief in the following manner: "The sole purpose of this appeal is to attempt to extricate the Billings Deaconess Hospital from the effect of the summary judgment in favor of Mid-West so that the hospital will be free to pursue its claim for indemnity against Mid-West. The summary judgment granted by the District Court has the effect of depriving the hospital from being heard on its claim for *219 indemnity against Mid-West Leasing Co. Rule 56, M.R.Civ.P., provides that a motion for summary judgment will be granted only if `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' Questions of fact presented by the pleadings here include whether negligent construction, installation or maintenance of the TV regulator switch in question caused the child's injuries, and whether the hospital is entitled to recover indemnity for damages paid therefor over and from Mid-West Leasing Co. "The court granted Mid-West's motion for summary judgment without comment and without leave to amend. The motion was heard and decided at a time when the trial of the action was imminent. Having Mid-West Leasing Co. retained as a third-party defendant would probably have forced a delay of the trial. To prevent this result, the court could have denied Mid-West's motion for summary judgment and severed the main action from the third-party claim and granted a separate trial thereon pursuant to the provisions of Rule 14(a), M.R.Civ. P. We contend that if the court did not wish to delay the trial, this is the course which it should have followed, rather than granting the motion for summary judgment. The course that the court took precludes the hospital from having its claim for indemnity against Mid-West determined. * * * "The hospital's theory in seeking indemnity against Mid-West is that if Mid-West negligently designed, installed or maintained the leased property, including the TV regulator switch which burned the Crosby boy's mouth, then the hospital would have the right to be indemnified by Mid-West for any damages that the hospital might be, or has been, required to pay to the plaintiff." In reply, Mid-West's brief makes the following argument: "The appellant [the hospital] argues that questions of fact were presented by the pleadings including negligent construction, installation or maintenance of the TV regulator switch in question. Respondent [Mid-West] adamantly denies that a question of fact is raised by the pleadings. Conceding, however, for purpose of argument only, that a question of fact is properly raised here, it becomes apparent from appellant's brief that the third party complaint was not proper in the first instance since that complaint would, in essence, make respondent a joint tort-feasor and as indicated, a third party complaint is only proper where one would be secondarily liable. The third party complaint may not properly be used to join a joint tort-feasor. * * * "The plaintiff's theory of recovery against the defendant hospital was pure and simple. Namely, the hospital had no business placing an electrical apparatus in the hands of such a small child, or, after having done so, had some duty to supervise its use. There can be no question by the pleadings, agreements, or anything else, that the hospital had the exclusive choice of whether or not to place such instruments in the hands of minor children. This was the plaintiff's theory of recovery. * * * The question of defective installation and maintenance was contrary to the plaintiff's theory of negligence, and if the plaintiff prevailed under his own theory and the allegations of the complaint, then the hospital was solely and clearly liable. * * * "The hospital seeks contributions by calling it indemnity and is entitled to neither." [1] We are unable to agree with Mid-West's argument that plaintiff's theory in no way rested upon negligent design, installation or maintenance of the TV regulator switch. We have previously quoted from the first count of plaintiff's complaint and refer again to the allegation that the mechanism that caused the burn was "in such a condition that the bare wires thereof came into contact with the flesh about the mouth of the plaintiff." Surely this allegation opens the door for plaintiff to *220 prove various faults in the mechanism itself. Mid-West argued to the district court and to this court that the cross-complaint was an attempt by the hospital to force contribution between joint tort-feasors. It may well be that Mid-West will be able to defeat the hospital's claim for indemnity by showing that the hospital is truly a joint tort-feasor, but that should be done at a trial of the issue and not by means of a summary judgment. We are at the pleading stage of this action. The cross-complaint states a claim seeking indemnity. Proof of that claim may be another matter. Each party refers to different sections of the lease agreement (which is a lengthy document consisting of seven double spaced typewritten pages) to support its position. It is not necessary to go into the various legal arguments made by the parties at this time concerning this document. However, it is interesting to note that the hospital characterizes the document as a lease agreement and Mid-West prefers to call it a conditional sales contract. Also, the parties differ over the provisions of the agreement concerning liability insurance, notice of defects in the equipment, and waiver of liability. In the hospital's answer, the hospital denied that it had committed any wrongful act or omission which caused the plaintiff's injury. In its cross-complaint, the hospital contended that it was the negligence of Mid-West that caused plaintiff's injury. The hospital sought indemnity for any damages it might be required to pay plaintiff, due only to the relationship between the plaintiff and the hospital and not due to any negligence on the part of the hospital. In support of this position, the hospital refers this court to the following quotation from Great Northern Railway Co. v. United States, D.C., 187 F. Supp. 690, 693: "Where the parties are not in pari delicto, and an injury results from the act of one party whose negligence is the primary, active and proximate cause of the injury, and another party, who is not negligent or whose negligence is remote, passive and secondary, is nevertheless exposed to liability by the acts of the first party, the first party may be liable to the second party for the full amount of damages incurred by such acts." Thus, the factual issue of whether the Crosby boy was injured solely through the negligence of Mid-West is presented by the pleadings. This is a genuine issue of a material fact. The district court committed error in granting the summary judgment. The order appealed from is reversed. ADAIR, DOYLE, CASTLES and JOHN C. HARRISON, JJ., concur.

April 4, 1967

31a5a7e4-3e8f-44a9-a643-b6ed35cf50bb

DICK IRVIN INC v MONTANA DEPT

N/A

83-284

Montana

Montana Supreme Court

No. 83-284 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 DICK IRVIN, INC., A Montana corp., Petitioner and Respondent, MONTANA DEPARTMENT OF LABOR, et al., and VEKg 0 . GREENWOOD, Respondents and Appellants. APPEAL FROM: District Court of the Ninth Judicial District, In and for the County of Toole, The Honorable R. D. McPhillips, Judge presiding. COUNSEL OF RECORD: For Appellants: D. Michael Eakin, Montana Legal Services, Billings, Montana R. Scott Currey, Dept. of Labor, Helena, Montana For Respondent : John H. Grant; Jackson, Oitzinger & Murdo, Helena, Montana Submitted on Briefs: September 2, 1983 Decided: December 30, 1983 Filed: UkC $ J !gtj'$ - . - Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Vern Greenwood appea.1~ the Toole County District Court's reversal of the Board of Labor Appeals of the Montana Department of Labor and Industry determination that he was entitled to unemployment henefits after his discharge from Dick Irvin, Inc., respondent. On March 26, 1-981, Dick Irvin, Inc., hired. Vern Greenwood as a truck driver. On May 29, 1982, Irvin d.is- charged Greenwood. Several incidents led. to his termination. First, in April 1981, on a haul to California, Greenwood attempted to drive to Big Timber to meet his wife. At Moore, his truck broke down causing a delay in the deliv- ery of the load. There is a dispute as to whether Irvin had given specific routing instructions to Greenwood. Further, Greenwood contends that any deviation from the normal route wou1.d have only been sixty-one miles. He was instructed not to take such side trips aga.in, and he obeyed. Second, Greenwood was involved in an accident in Texas where a car ran into the lower right front of his tractor as he was turning right. Greenwood asserts that he was signal- ling for the turn, and the car was travelinu completely on the shoulder of the road attempting to pass him on the right. Greenwood was issued a citation, but it is unclear what the violation was. He also claims that he sent a notarized statement of an eyewitness to the accident to Irvin, but it is not part of the record. Irvin blames Greenwood for the accident because he was issued the citation and Irvin's insurance carrier paid for the damage to the other vehicle. Third, on one of Greenwood's hauls the wheel-, tire and huh came off the axle due to lack of oil in the hub of the wheel. Greenwood accepts partial responsibility for this as he failed to check the oil level on this occasion. However, he argues that Irvin knew the truck was due for service at this time but dispatched him on another delivery. Fourth, while on a haul into Louisiana, Greenwood needed certain permits to pass through Texas with an oversize load. Apparently, he would have violated Texas law by trav- eling without the permits. Thu-s, he waited over the weekend to obta.in them at the border instead of traveling into Texas to pick them up at New Boston as instructed by Mark Cole of the Irvin office. This caused a late delivery in Louisiana. Fifth, while he and a forklift driver were loading his truck, the forklift operator drove the lift over a piece of sideboard and punched a hole therein. Greenwood claims that the high winds blowing at the time prevented the sidehoard from standing up so he simply laid it on the deck of the truck. Irvin replaced the sideboard with a new piece of plywood. Finally, the last incident prior to Greenwood's termi- nation was an accident in Wyoming. It appears that while turning a corner in a Casper suburb, the underside of the trailer was pulled across the front or hood of another vehi- cle causing damage to the vehicle. No citations were issued for the accident, although Irvin's insurance carrier again paid for the damaged vehicle. In May 1982 Greenwood was discharged and, according to Greenwood, this occurred upon the advice of Irvin's insurance company. He then applied for unemployment benefits. Irvin challenged this application asserting that Greenwood was ineligible because he had been discharged for misconduct. On June 14, Greenwood was awarded benefits and Irvin appealed this decision to the appeals section of the Employment Secu- rities Division of the Department of Labor and Industry. A telephone hearing was conducted and the hearings officer found that Greenwood was ineligible for benefits due to discharge for misconduct. Greenwood then appealed to the Board of Labor Appeals, and another telephone hearing was conducted. The Board found in favor of Greenwood and reversed the decision of the ap- peals section. In accordance with section 39-51.-2410, MCA, Lrvin filed a petition for judicial review of the Board's decision. A hearing was held on April 21, 1983, in the Ninth Judicial District, Honorable R. D. McPhillips presiding, after which the decision of the Board was reversed. Essen- tially, the District Court found that Greenwood's actions were within the definition of misconduct and, according to section 39-51-2403, MCA, sufficient to deny benefits. From this decision Greenwood appeals and raises three issues for our consideration. 1. Did the District Court err by making findings of fact different than those of the Board of Labor Appeals? 2. Is there substantial evidence supporting the Board's findings? 3. Did the District Court err by determining that the acts of appellant are within the statutory definition of misconduct to deny unemployment benefits? First, Greenwood asserts that the District. Court erred by making findings of fact different than those made by the Board. The District Court must first determine if substan- tial evidence supports the Board's factual findings, and, if so, those facts are conclusive and the District Court juris- diction is confined to questions of law. If the Court determines no such substantial evidence exists, it can make its own findings. This deterpination was never made; thus, the District Court was incorrect in making its own findings. Irvin simply contends that the District Court accepted the findings of the Board. In essence, the District Court did not ma.ke its own factual findings. The District Court's review of rulings made by the Board of Labor Appeals is strictly governed. by statute and case 1 . a w . Section 39-51-2410 (5) , MCA, outlines the scope of judicial review of Board decisions. This su.bsection read.s: "(5) In any judicial proceeding under 39-51-2406 through 39-51-2410, the find- ings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. Such action and the questions so certified shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under the workers' compensation law of this state . '' This Court has enllnciateci and. further defined this standard on several occasions. In Kirby Co. of Bozeman, Inc. v. Employment Security Division (Mont. 1980), 614 P.2d 1040, 37 St-Rep. 1255, we were called upon to determine whether the District Court erred by entering findings of fact different from those ma.de by the Board of Labor Appeals. Justice Ra.rrison, writing for a unanimous court explained that, "Under the plain meaning of this statute and the case law interpreting it, the District Court must treat the findings of the Board as conclusive, if the findings are supported by the evidence and in the absence of fraud. Noone v. Reeder (1968), 151 Mont. 248, 252, 441 P.2d 309. The District Court should, therefore, limit its review of the findings of the Board to a consideration of whether they are supported by the evidence. The District Court should not enter findings different from the Board's without first determining the Board's findings are not supported by the evidence." 614 P.2d at 1042-1043. Although finding that such procedural. error did not require reversal since the District Court affirmed the decision of the Board, this Court held that under section 39-51-2410, MCA, it is not proper for the District Court to enter find- ings different from those determined by the Board without first determi.ning that the Board's find.ings are not supported by the evidence. See also, Jordan v. Craighead et al. (1943), 114 Mont. 337, 136 P.2d 526. In this case the District Court found: (1) April 1981, Greenwood was deliberately out of route; (2) December 1981, Greenwood refused to follow instruc- tions to go sixty miles across the Texas border to New Boston to pick up oversize load. permits, and instead sat at the border for twenty-four hours waiting for a weigh station to open ; (3) December 15, 1.981, Greenwood rammed a car in Hous- ton, Texas, and was found I00 percent at fault; (4) March 23, 1982, Greenwood neglected to check the hub oil level and, as a result of the hub being low on oil, lost a wheel; (5) Greenwood punched a hole in the sideboard of a trailer while loading it in Iowa; (6) May 1982, in Wyoming, Greenwood again crashed into a car and was found 100 percent at fault; (7) Greenwood was constantly speeding; and (8) Greenwood was constantly insubordinate. The Board's findings were as follows: ". . . The evidence before the Board of Labor Appeals establishes that during the period. the claimant was employed, he was involved in two accidents driving a vehicle of the employer. In addition, on one occasion, the claimant deviated from a scheduled route, however, he was al- lowed to continue his employment after that incident and the claimant did not violate the employer's policy regarding scheduled routes thereafter. On the occasion which led to the termination of the claimant's employment, the claimant was involved i r , an accident in which he struck a car while making a turn in Casper, Wyoming. Although the incidents when considered together or even individ- ually are sufficient basis to justify the employer making the decision to terminate the claimant ' s employment, his conduct was not such as to lead to a conclusion that the claimant had a deliberate disre- gard for the interest of the employer or that he acted in a willful or wanton manner in connection with the operation of the employer's vehicle." We find that the District Court's findings were consid- erably different than those made by the Board, and the Dis- trict Court entered its findings without a determination of whether the Board's findings were supported by substantial evidence. This is completely contrary to the stands-rd of review of Board decisions discussed above and clearly improper. Further, the findings of the Board were supported by the evidence but were completely inadequate for the District Court to review the Board's decision. Thus, we must reverse and remand the case to the District Court with directions to remand to the Board of Labor Appeals for entry of complete findings fact reqarding all alleged miscon- duct. Jrvin discharged Greenwood on the basis of six specif- ic incidents of alleged misconduct. The Board on1.y mentioned three such incidents. The Board must make complete findings regarding the nature of each incident so that the District Court can adequately review the decision of the Board. This prevents the District Court from making its own fi~dings, adhering to the standard of review for Roard decisions, and provides a proper basis for the District Court to review the decision of the Roard. The other issues raised by appellant become moot as new findings of fact will be entered. The order and judgment of the District Court is vacat- ed. This cause is remanded to the District Court with direc- tions to remand to the Board of Labor for entry of findings on all claims of misconduct alleged by the employer together with entry of an appropriate order. ~ ~ 4 ! . % , . , , . & Chief Justlce We concur: Justices Mr. Justice John C. Sheehy, dissenting: I dissent. The majority opinion contains an inadequa.te examination of the record in this case, and that ina.dequacy has lead the court into error. Here are the facts from the record as I find them: On June 2, 1982, Vern Greenwood applied to the Depart- ment of Labor and Industry, Unemployment Insurance Division, for unemployment insurance benefits following the termination of his employment by Dick Irvin, Inc. On June 4, 1982, Dick Irvin, Inc., objected in writing to the payment of unemployment insurance benefits to Greenwood, listing the following grounds: 1. Greenwood was dispatched from Shelby, Montana, to Los Angeles, California, but went off-route to Billings, using additional mileage of 409 miles. 2 . Greenwood failed to call in as he was told to do regarding permits for travel with an oversized load in Texas and the company incurred $976 for delivery a day late. 3. An accident in. Houston, where Greenwood ran into a car. 4. The loss of a front wheel on the truck because Greenwood failed to check the oil level in the hub. 5. Greenwood poked a hole in the sideboard of a trailer through his neglect through the use of a forklift, and bent the back of the trailer, hitting a dock. These are the five and only reasons assigned by Dick Irvin, Inc. in its letter of June 4, 1982, obiecting to the payment of benefits. No claim was made in that letter by Dick Irvin, Inc., that Greenwood was discharged because of an accident which occurred in Casper, Wyoming. Because Dick Irvin, Inc., had filed an objection to payment of the benefits, Greenwood's claim was assigned to a heaxing examiner of the Department of Labor for determination pursuant to section 39-51-2402, MCA. That examiner, P. Hyatt, determined on June 14, 1982 that Greenwood was not disqualified. The examiner's findings stated: "YOU were discharged because it is contended that you caused damage to property owned by the employer. The evidence in the record does not establish your actions to have been willful or intentional. You were discharged for reasons other than misconduct connected with the work." On that basis, Greenwood was entitled to his unemploy- ment insurance benefits. However, Dick Irvin, Inc., filed a protest on June 1, 1982. A redetermination was refused on June 22, 1982, be- cause the Department "had received no additional information on which to base the redetermination." Dick Irvin, Inc., appealed from the determination made under section 39-51-2402, supra. Such an appeal goes to an appeals referee under the provisions of section 39-51-2403, MCA. The appeals referee was Rodney G. Stebbins. He con- ducted a telephone hearing on June 30, 1982, and based on that hearing made the following findings of fact: "The claimant was employed as a truck driver by the above-named employer for about 14 months. He was paid on the basis of 16 1/2 cents per mile. "Without authorization on April 19, 1981, he drove the truck several hundred miles out of the way to visit his wife. During the course of his employ- ment, he was involved in two accidents in which he was found to be at fault and which resulted in $2,650 in damages. The last accident occurred on May 23, 1982. As the result of the above infrac- tions, he was discharged on May 29, 1982." Note that Stebbins included in his findings the accident which occurred in Casper, Wyoming, that on May 23, 1982. Based on his findings, Stebbins found that Greenwood's "conduct showed a deliberate disregard of the employer s interests and of the standards of behavior the employer had a right to expect of him as an employee." Therefore, Stebbins held that Greenwood was discharged for misconduct connected with his work which directly affected his employment. The appeals referee therefore made a finding in favor of the employer, and against Greenwood, but upon only three grounds: (1) The driving off-route, (2) the accident in Texas, and (3) the accident in Casper, Wyoming. Greenwood appealed on July 2, 1982, from the decision of the appeals referee. That appeal went to the Board of Labor Appeals under section 39-51-2404, MCA. The Board of Labor Appeals is a quasi-judicial board. Section 39-51-310, MCA. As such, it may consider not only the record made before the appeals referee but new evidence produced at the board hearing. City of Billings v. Board of Labor Appeals (Mont. 1983), P.2d - , 40 St.Rep. 648, 651. The Board of Labor Appeals conducted a hearing at which Greenwood attended personally, and Dick Irvin, Inc., partici- pated through the telephone. After the hearing, the Board of Labor Appeals made its decision on August 30, 1982. In that decision, the Board of Labor Appeals decided not to expand on the grounds on which the appeals referee had decided. Instead, it took the three grounds on which the appeals referee had made its decision, and refuted the same as reported in the majority opinion. It was not necessary for the Board of Labor Appeals to go into other matters because the issues before it on the reasons for termination of Greenwood were limited by the appeals referee in his decision. Notably, the effect of the majority decision now is to tell the Board of Labor Appeals to go beyond what was pre- sented to it in the appeal from the appeals referee, and make factual findings on other issues not decided by the appeals referee, including one issue, the Casper, Wyoming, accident that was not raised by the employer in his initial report to the Unemployment Compensation Division. Dick Irvin, Inc., appealed the adverse decision of the Board of Labor Appeals to the District Court. In contrast to the broad appellate power of the Board of Labor Appeals provided in section 39-51-2404, MCA, the appellate power of the District Court and of this Court, is severely limited under section 39-51-2410, MCA, when considering appeals from the Board of Labor Appeals. The latter section provides that the findings of the Board as to facts, if supported by the evidence and in the absence of fraud are conclusive, and the jurisdiction of the District Court is confined to questions of law. In my opinion, the findings of the Board of Labor Ap- peals as to the facts, that is the three issues decided by the Board of Labor Appeals, are supported by the evidence, and neither the District Court nor this Court has any power to overturn them. The jurisdiction of the District Court is limited in this case to questions of law, and it exceeded its jurisdiction in this case when it purported to go beyond the factual issues that had been presented to the Board of Labor Appeals through the appellate process in the Department of Labor. In like manner, now that the appeal has reached this Court, under section 39-51-2410, MCA, where we are reviewing what was done in the District Court, we are likewise limited to the findings of the Board as to facts, and if they are supported by the evidence, they are conclusive and our juris- diction is confined to questions of law. Section 39-51-2410. The majority opinion does not discuss, although it is crucial to the case, what must be established by an employer who seeks to prevent a terminated employee from receiving unemployment compensation benefits. Here it is claimed that Greenwood was disqualified from benefits under section 39-51-2303, MCA, in that he had been discharged for miscon- duct connected with his work or a.ffecting his employment. This Court has defined wha-t is meant by such misconduct in Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445, 524 P.2d 1108. It is: "(1) A deliberate, willful or wanton disregard of an employer's interests or of the standards of behavior which he has a right to expect of his employer, or "(2) Carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent, or evil design." Instead of determining that the Board of Labor Appeals should now look at issues which were not presented to it by the appeals referee, this Court should examine the findings of fact made by the Board and determine as a question of law whether they constitute misconduct as we have defined it in Gaunce . The facts on the whole record are, with respect to those findings, that Greenwood went off-route more than a year prior to his termination by driving to Billings. That he had two traffic accidents j-n the handling of his truck, one of which was not ascribed a . s a . reason for his termination by the employer. On the whole record, the Board of Labor Appeals was correct in determining that as a matter of law the grounds used by the appeals referee to refuse benefits did not constitute misconduct in that there is no showing of deliberateness, willfulness, or wantonness in the a.cts of the employee. I find that as a matter of law. Therefore, I would reverse the District Court, and reinstate the findings of the Board of Labor Appeals, without any further folderol.

December 30, 1983

c9d55a24-57d3-4087-84a3-575594807732

SHACKLETON v NEIL

N/A

83-264

Montana

Montana Supreme Court

No. 83-264 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 JOBN A. SHACKLETON, Plaintiff and Appellant, ROBIN R. NEIL, an individual, S.S. WHITE COMPANY, and JOHN DOE CORPORATION, Defendants and Respondents. ............................................ S. S. WHITE RETAIL DIVISION I a Division of Pennwalt Corporation, Third'Party Plaintiff and Respondent, -vs- TELEDYNE, INC., a corporation, Third Party Defendant and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable H. William Coder, Judge presiding. COUNSEL OF RECORD: For Appellant: Joseph W. Duffy, Great Falls, Montana ardine, Stephenson, Blewett & Weaver; Keith Tokerud, Great Falls, Montana For Respondents: (2 lexander & Baucus; Edward C. Alexander, Great Falls, Montana Smith, Baillie & Walsh; James R. Walsh, Great Falls, Montana Submitted on Briefs: September 8, 1983 Decided: December 1, 1983 Filed: DEC 1 - '981 E" 8 & fq,zym& - Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. John Shackleton appeals the Cascade County District Court dismissal for failure to prosecute in his personal injury action against Robin R. Neil, S. S. White Retail Division of Pennwalt Corporation (White) and. Teled!lne, Inc. (Teledyne), all respondents in this appeal. We affirm. On June 29, 1972, John Shackleton swallowed a metal dental instrument while his dentist, Robin Neil, was working on him. Neil initially indicated it would pass hy normal bodily function. However, it had to be surgically removed. At this time, Shackleton was fifteen years old. Dwayne Shackleton, appellant's father, was in the United States Air Force; consequently, the Shackleton family was often transferred around the country. In 1974 they were apparently transferred to Florida. Also, Dwayne Shackleton was stationed overseas at certain times during the pendency of this action. In 1975 Shackleton reached majority, and on June 27 of that year he filed a complaint against Neil, S. S. White Retail Division, retailer of the instrument, and Teledyne, Inc., manufacturer of the instrument, for damages incurred from swallowing the instrument. The filing date was just a few days prior to the expiration of the statute of ].imitations. During the pendency of this action, there were many delays, postponements and continuances. This was especially noticeable in the discovery process. In June 1982 all respondents joined in a motion to dismiss for failure to prosecute, pursuant to Rule 41(b), M.R.Civ.P., and Rule 56 of the Rules of the Eighth Judicial District. After several continuances, the matter was heard on October 14, 1982. The District Court entered findings of fact and conclusions of law on January 14, 1983. The District Court found that: (1) the only discovery conducted by Shackleton was interrogatories propounded to Neil and Teledyne in September 1979, and, after these were answered, he took no further affirmative action to bring the case to trial; ( 2 ) answers to interrogatories from Neil and White had to be compelled and in each instance Shackleton did not meet later deadlines established by order or stipulation; (3) failure to answer Neil's interrogatories caused the District Court to vacate the pretrial conference set for May 16; (4) respondents had difficulty in deposing Shackleton; (5) Shackleton did not inform the respondents of the identity of his expert witness; (6) appellant has never answered Neil's second set of interrogatories filed October 3, 1979; (7) at the time of filing the motion to dismiss for failure to prosecute, Shackleton was not conducting any discovery or taking other action to bring this case to trial.; (8) recog- nizing that appellant's counsel was incapacitated due to illness and a car accident during portions of 1979 and 1981, the facts indicate that Shackleton has not prosecuted his complaint with due diligence. Based upon these findings and the conclusion that sufficient excuse had not been shown for delay, the District Court dismissed the action with prejudice for failure to prosecute in accordance with Rule 41(b), M.R.Civ.P., and Rule 56 of the Rules of the Eighth Judicial District. From the District Court record we also find that other parties requested extensions. Both White and Teledyne moved the court to vacate the original trial date for various reasons. From the District Court action Shackleton brings this appeal and raises one issue for our consideration: Did the lower court abuse its discretion in granting respondents1 motion to dismiss for failure to prosecute? First of all-, Shackleton argues that he advanced suffi- cient excuse for the various delays and postponements to prevent dismissal. In fact, the District Court did not consider the explanation of Shackleton's absence a . n d the absence of his father due to military service. His father would be a key witness in this case, as he had complete knowledge of the incident and steps taken to solve the prob- lem. Further, the court did not consider Shackleton's coun- sel's excu.sa.ble absence due to illness and recovery from a car accident. The District Court's lack of consideration of the above matters, Shackleton contends, is an abuse of dis- cretion and reversible error. Second, appellant asserts that respondents did not show requisite prejudice or injury from the delay in the case. Third, Shackleton claims that the District Court abused its discretion in failing to consid-er various de1.avs by respondents. Finally, it is argued that the District Court imposed an extremely severe sanction without consideration of lesser sanctions that would be expedient. Thus, Shackleton was deprived of his day in court. Initially, we recognize that the appellant has failed to provide a transcript for review pursuant to Rule 9(h), M.X.App.Civ.P., which could be grounds for dismissal of this appeal. Yetter v. Kennedy (1977), 175 Mont. 1, 571 P.2d 1152. However, while a transcript on respondents' motion to dismiss for failure to prosecute would he helpful in our review of the District Court's action, it is not absolutely necessary. Rule 4(a), M.R.App.Civ.P., expressly provides: " (a) Filing the notice of appeal. An appeal shall be taken by filing a notice of a.ppea1 in the district court. Failure of an appellant to take a.ny step other - - - - than the timely filing o f a notice of - - appeal does not affect the valxdity of the -- appeal, but is ground only for such action -- -- as the supreme court deems appropriate, - - which may include dismissal of the -- - - Deal." (Em~hasis added.) See also, Yetter v. Kennedy, supra. Here no witnesses testified at the hearing; rather the court only heard arguments from counsel. This is reflected in both trial and appellate briefs. Accordingly, we will- decide this appeal on the record before us. Failure to prosecute is not a complicated concept. It simply means that a plaintiff has failed to exercise due diligence in bringing his case to a conclusion. ~ u l e 41(b), M.R.Civ.P., establishes that a defendant can move for invol- untary dismissal for this reason. The rule provides in part: "Involuntary dismissal--effect thereof. For failure of the ~la.intiff to rosec cute -- or to comply withc these r u e or any order of court, a defendant may move f o ; dismissal of an action or of any claim against him. . . . " (Emphasis added.) It is generally held, in the absence of a statute prescribing time limitations for bringing an action to trial, that the matter of dismissal for want of prosecution is a matter addressed to the sound discretion of the trial court. Calaway ~ r . Jones (1978), 177 Mont. 516, 582 P . 2 6 1 756. This Court stated in Cremer v. Rraa.ten. (1968), 151 Kont. 18, 438 "It is within the discretion of the trial court to dismiss an action if it has not been prosecuted with reasonable dili- c j e n c e . It is presumed. that the trial court acted correctly and its decision will not he overturned without a showing of an abuse of discretion. M.R.Civ.P., Rule 41 (b) ; State Savings Bank v. Albertson, 39 Pqont. 414, 415, 102 P. 692; Silver v. Eakins, 55 Mont. 210, 175 P. 876." 151 Mont. at 19-20, 438 P.2d at 554. The standard for determining whether there has been an abuse of discretion in ruling on motions to dismiss for failure to prosecute is adequately stated in Anderson v. Air West, Inc. (9th Cir. 1976), 542 F.2d 522, cited by ~ealey v. Transportacion Maritima Mexicana , S .A. (9th Cir. 1980) , 662 F.2d 1275. The court ruled that: "A district court's dismissal pursuant to Rule 41 (b) wil.1 not he overturned unless the district judge clearly abused his discretion . . . A rule of thumb as to the meaning of the abuse of discretion standard provides that the trial court's exercise of discretion should not be disturbed unless there is 'a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighi.ng of the relevant factors. ' " 662 F.2d at 1278. The relevant factors referred to in the above quotation are set forth in States Steamship Company v. Philipine Air Lines (9th Cir. 1970), 426 F.2d 803, 805. hey are as follows: ". . . !1) the appellant's right to a hearing on its claim, (2) the impairment of the appellees' defenses presumed from the unreasonable delay, (3) the wholesome policy of the law in favor of the prompt disposition of law suits, and (4) the duty of the appellant to proceed with d.ue d.iligence. " The first factor is inherent in every leqal proceeding and needs no citation. The other factors have been recognized by this Court where we have determined the propriety of dismissals for failure to prosecute. It is well settled in Montana that an action may be dismissed for failure to prosecute it with due diligence, absent a sufficient showing of excuse. Calaway , supra ; Cremer, supra; State ex rel. Johnstone v. District Court (1957), 132 Mont. 377, 319 P.2d 957. Furthermore, there is no burden on the defendant to show injury by the delay. When the plaintiff has slept on a case for a long period of time, the law presumes injury and places the burden on the plain- tiff to show good cause for the delay. Cremer, 151 Mont. at 20, 438 P.2d at 554; Johnstone, supra. We have specifically recognized that an unreasonable delay raises a presumption of impairment of defendant's defenses. Peters v. Newkirk (Mont. 1981), 633 P.2d 1210, 1212, 38 St.Rep. 1526, 1528. An unreasonable delay therefore operates to place upon the party seeking relief the burden of demonstrating a rea- sonable excuse for his inaction. Calaway, 177 Mont. at 520, 582 P.2d at 758. We believe a delay of over seven years is unreasonable; thus, the question we must decide is whether the District Court abused its discretion in concluding that Shackleton did not meet this burden. We hold the District Court did not abuse its discretion in granting the motion to dismiss for failure to prosecute. There was no clear error in deciding that Shackleton did not show reasonable excuse for his inaction. First, the District Court did consider excuses for Shackleton's absence--his father's service in the military and counsel's illnesses. The District Court specifically mentioned these situations in its findings of fact. With respect to his father's military service, it found that his absence due to this service should have no effect on the plaintiff's pursuit of his action. The court also found that counsel's illnesses during 1979 and 1981 should not have prevented plaintiff from prosecuting his complaint with due diligence. It is evident that the District Court did consider the reasons advanced for Shackleton's delay; however, it found unreasonable inaction after weighing other factors that indicated his failure to prosecute. The record indicates that the court made no clear error in this determination. The action dragged on eleven years after the unfortu- nate incident, over seven years after the filing of the complaint. Shackleton's lack of affirmative action prosecut- ing this case is a matter of record. Only two interrogato- ries were filed by him durinq the pendency of the proceedings. Shackleton's inaction is also evident as he was compelled to answer interrogatories which caused a pretrial conference to be vacated. While his counsel was incapacitat- ed, Shackleton made no other arrangements nor showed any desire to obtain new counsel. Up until the time when the motion to dismiss was heard, Shackleton still had not in- formed respondents of the identity of his expert witnesses and Neil's second set of jnterrogatories had not been an- swered. The record indicates difficulty in deposing Shacklet-on. The parties indicate a deposition was eventually taken, but it is not of record. In sum, we find that very little was done by Shackleton in over seven years to bring his case to a conclusion, and it is an undue burden on the court and the respondents to allow the inaction to continue. Shackleton also claims that the respondents did. not show injury or prejudice to their case from his inaction. As previously discussed, this burden is not placed upon the defendants. It is the plaintiff who must show reasonahle excuse for delay. In this case, this burden was not met. Appellant contends that the District Court did not consider delays initiated by the respondents; namely, White's and Teledyne's motions to vacate the original trial date. We find that continuing a trial on one occasion is not unusual and does not indicate unreasonable delay. This is especially true in light of the many delays and postponements occasioned by Shackleton. Affirmed . We concur:

December 1, 1983

662a65d7-f27a-43a0-ae11-3d6241041bfd

OLD FASHION BAPTIST CHURCH v MT D

N/A

83-166

Montana

Montana Supreme Court

NO. 83-166 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 OLD FASHION BAPTIST CHURCH, Plaintiff and Appellant, VS . MONTANA DEPARTMENT OF REVENUE, et al., Defendants and Respondents. Appeal from: District Court of the Second Judicial District, In and for the County of Silver Bow Honorable M a & + & & & % , Judue presiding. .+?@&OLD O L S E ~ Counsel of Record: For Appellant: John Leslie Hammer argued, Butte, Montana For Respondents: Larry G. Schuster argued, Helena, Montana R. Lewis Brown, Butte, Montana Filed t NOV 3 - 1983 Submitted: September 1 3 , 19 8 3 Decided: November 3 , 1 9 8 3 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Old Fashion Baptist Church appeals from a Silver Bow County District Court judgment disallowing its claimed property tax exemptions. We affirm in part and reverse in part, and remand for further proceedings. On July 23, 1975, the Church recorded a. gra.nt deed to lots 10-16 in a subdivision near Butte. On the same day a notice of purchasers interest was recorded by the Church for lots 6-9 in the same subdivision. All lots a.re surrounded by one fence. On lots 10-11, there is a building used as a . church school and place of worship. There is a house on lot 14 used as a parsonage. A road leading to the church crosses 1-ots 6, 7, 8 and 9. Other portions of lots 6-9 as well as the rest of the lots a.re used for recreational.. a.ctivities by church members but are unoccupied and unimproved. A softball backstop has been erected on one of the lots. Reverend Gary Miller, pastor of the Church, testified that the property was purchased for convenience and usage and all of the property is used by the school ministry and youth ministry for religious services and fellowship. The Montana Department of Revenue (DOR) granted tax exemptions to lots 10-16 in 1980. However, the exemption for lots 6-9 was denied, and property taxes thereon were assessed for 1975 and all subsequent years. Since taxes were delinquent on lots 6-9, Lee MacDonald took a tax assignment on those lots and, without proper notice to the Church, obtained a tax deed and recorded the deed. On March 3, 1980, MacDonald quitclaimed his interest in lots 6-9 to James Walters by recorded deed. On May 22, 1980, the Church recorded its deed from Marjorie Noland for lots 6-9. There is some evidence that MacDonald or Walters visited the pastor of the Church and demanded $6,000 to reconvey their alleged interest acquired by tax deed. There is also eviden.ce that threats of ouster were made. MacDonald would not clear title as requested by the Church. Thereafter, the Church filed this action to quiet title. The District Court found that the Church was the record owner of all lots in question and voided the tax deed. Further, it granted a tax exemption on lots 10, 11 and 14, concluding that the other lots were not reasonably necessary for the convenient use of the church buildings. Also, the court determined that ingress and egress could he achieved by means other than the road on lots 6-9. This appeal followed. The Church raises two issues for our consideration: (1 Is the Church entitled to an exemption, as a religious institution, on all lots surrounding the church buildings? (2) Did the District Court act without jurisdiction in disallowing exemptions previously granted by the Department of Revenue? The Church con.tends that the land surrounding the church buildings is reasonably necessary for convenient use of the church buildings; thus, the Church is entitled to an exemption under section 15-6-201 (1) (b) , MCA. The land is used exclusively by the Church, the school ministries, and youth ministries for religious purposes. Ingress and egress is accomplished by the road which is on lots 6, 7, 8, and 9. A DOR witness testified that he had only been on the property twice but saw no activity. Consequently, the Church argues, DOR failed to contradict the Church1 s evidence regarding the use of the property. The Church also a.rgues tha.t the legislative enactment of the exemption for adjacent lands necessary for the convenient use of buildings indicates an intent to liberally construe the exemption statute. DOR asserts that the tax exemption statutes must be strictly construed against exemptions and in favor of taxation. A tax exemption cannot be implied but must be expressed in clear, unambiguous language. DOR recognizes that the church, parsonage and land on which they sit is exempt from property tax. However, the adjacent land does not fall under section 15-6-201, MCA, as it is not reasonably necessary for convenient use of the church buildings. DOR points out that all of the lots were unimproved and vacant, and no activity was ever witnessed on the property. Under rules of strict construction an exemption cannot be granted on such property. Property tax exemptions for religious institutions a.re established in Art. VIII, Section 5, of the 1972 Montana Constitution, which reads in part: "Property - tax exemptions. (1) The legislature may exempt from taxa.tion: " (b) Institutions of purely public charity, hospitals and places of burial not used or held for private or corporate profit, places for actual religious worship, and property used exclusively for educational purposes. (c) Any other classes of property." Section 15-6-201 (1) (b) , MCA, provides: "Exempt categories. (1) The following categories of property are exempt from taxation : (b) build.ings, with the land they occupy and furnishings therein, owned by a church and used for actual religious worship or for residences of the clergy, together with adjacent land reasonably necessary for convenient use of such buildings;" Generally, property tax exemptions for religious institutions are strictly construed against the claimant. 71 Am.Jur. State and Local Taxation, 5 381 at 688; Grace, Inc. v. Board of County Comm. (N.M.App. 1981), 639 P.2d 69; Yakima First Baptist Homes, Inc. v. Gray (1973), 82 ~ash.2d 295, 510 P.2d 243; Board of Publication of the Methodist Church v. Oregon State Tax Commission (1964), 239 Or. 65, 396 ~ . 2 d 212; see also, other cases cited in 15 ALR2d 1064, 1065. This Court so held in Flathead Lake Methodist Ca.mp v. Webb (1965), 144 Mont. 565, 399 P.2d 90, citing Town of Cascade v. Cascade County (1926), 75 Mont. 304, 243 P. 806, and Cruse v. Fischl (1918), 55 Mont. 258, 175 P. 878. However, lathe ad Lake also recognized that each case must be viewed from a realistic standpoint, quoting language from a New York court: "'We must, as in all other judicial determinations, place in juxtaposition the two extremes of judicial interpretation. On the one hand is the policy of strict construction which frowns upon tax exemption. [Citin.g cases.] On the other hand, innocent collateral activities essential to the furtherance of the true purposes of the corporation should not blind the court to the genuineness of those purposes nor to the sincerity of their a.ctua1 accomplishment. ' [Citing cases.] 281 N.Y.S. 545 at page 546." 144 Mont. at 573, 399 P.2d at 95. While strict construction of exemption statutes is the majority rule, the balancing approach adopted by this Court lays a foundation for construing our statute. We construe the exemption statute to allow an exemption for the actual land that is the access roadway. It was brought out in oral argument that because of the topography of the surrounding land, ingress and egress can only be achieved by the church access road, not by Wynne Avenue as determined by the District Court. This access road crosses lots 6, 7, 8 and 9. We find that roads for ingress and egress are certainly within the meaning of "adjacent land reasonably necessary for convenient use of such [church] buil-dings," stated in section 15-6-201 (1) (b) , MCA. Access to church buildings is necessary for the convenient use of such buildings. We exempt only the land on which the roadway sits, adhering to the policy of strict construction of tax exemption statutes. The balance is swung toward strict construction rather than a more permissive interpretation since the property is largely undeveloped and the use thereof is not clearly evident nor documented. Hence, it is difficult to ascertain whether such use is essential to the furtherance of the true purposes of the Church. Our holding is strictly limited to the facts of this case and does not foreclose other religious institutions from asserting tax exemptions on property adjacent to church buildings. The Church also asserts that the District Court had no jurisdiction to remove exemptions on lots previously exempted by DOR. The tax exempt status of those lots was not involved in the litigation and DOR did not challenge such status. DOR argues that the exempt status of the lots was raised by the Church and thus became subject to litigation. A District Court does not have jurisdiction to grant relief outside of the issues presented by the pleadings unless the parties stipulate that other questions be considered or the pleadings are amended to conform to the proof. Heller v. Osburnsen (19731, 162 Mont. 182, 510 P.2d 13, National Surety Corp. v. Kruse (19481, 121 Mont. 202, 192 P.2d 317; Welch v. All Persons (19271, 78 Mont. 370, 254 P. 179; Wallace v. Goldberg (1925), 72 Mont. 234, 231 P. 56. In National Surety Corp., this Court recognized that "[tlhe rule in Montana as well as in other jurisdictions seems to be well settled that a judgment must be based on a verdict or findings of the court and must be within the issues presented -- to the court. " - - 121 Mont. at 205-206, 192 P.2d at 319. (Emphasis added.) This rule was clearly upheld in Heller, 162 Mont. at 288, 510 P.2d at 16. We hold the District Court had no jurisdiction to remove the exempt status originally granted by DOR. In this case the original action was to quiet title on lots 6, 7, 8 and 9, as the tax deed clouded the Church's title. As previously mentioned, the Church alleged that the tax deed was void since no delinquency occurred because the property should have been tax exempt. Therefore, the issues of the action embraced lots 6 through 9. The exemption granted on lots 10 through 16 by DOR was acknowledged in its answer. DOR's prayer for judgment specifically asked that the nonexempt status and subsequent assessment on lots 6 through 9 be affirmed. Lots 10 through 16 were not mentioned. Finally, the Church's application for a writ of prohibition. only dealt with the tax assessment on lots 6 through 9, not lots 10 through 16. The above facts regarding the pleadings indicate that the tax exempt status of lots 10 through 16 was never brought into this litigation. Rather, the essence of the action was the validity of the tax deed which depended, in part, on the tax status of lots 6 through 9. Consequently, the District Court acted without jurisdiction in removing the exemption status of lots 10 through 16. The judgment is reversed a . s to lots 10 through 16. The judgment as to lots 6 through 9 is vacated and remanded to the District Court for determination of the actual, physical dimensions of the access road for tax exemption, which would refer back to time of acqui-sition. The remainder of the judgment is affirmed. 'a-,+ qQq Chief Justice We concur: Justices &strict Judge, sitting in. place of Mr. Justice Frank B. Morrison, Jr. Mr. Justice John C. Sheehy, dissenting: I dissent from this improper and unworkable decision relating to the exemption of church-related property. The majority admit that Rev. Gary Miller, pastor of the church, testified that the property was purchased for convenience and usage and all of the property was used by the school ministry and youth ministry for religious services and fellowship. The majority ha.ve ignored that language in determining that a portion of the church property must be taxed. This is the testimony which bears on the question: "Q. I believe that you testified during the course of a direct examination that those particular lots were used for picnics, hayrides, tobogganing and activities of that sort, is that correct? A. (Rev. Miller) Yes, related to our ministries, our youth ministries, our school ministry . . . "THE COURT: You have a road and you have a baseball diamond on 6, 7 and 8 and 9. There is a road in all three or four. "THE WITNESS: The road has to be on all of them but maybe 6. That's not vacant. Its used everyday." In contrast, the Depa-rtment of Revenue employee testified that he had been on the premises only twice, not on a day when church or school activities were going on, and that he had no direct knowledge of any kind as to the use of the lots with respect to the church ownership. Lots 6 through 9, and lots 10 through 16 are all used as one unit, and are enclosed in a common fence. There is a baseball diamond located on lots 6 through 9, as well as a roadway which the majority have seen fit to exempt from taxation. The evidence is that the recreational portion of lots 6 through 9 in connection with the school ministry. This case should be controlled by Flathead Lake Methodist Camp v. Correan M. Webb, County Treasurer, (1965), 144 Mont. 565, 399 P.2d 90. In that case, this Court held that that portion of church property used for recreational purposes in connection with its religious educational purposes was entitled to exemption from taxes. I see no difference in the situation existing here, particularly where the testimony indicates that the property is used "everyday" in connection with the ministry of the church. This case sets a danqerous precedent. Now a l . 1 church properties will be examined by the Department of Revenue, and those portions of the their properties which are not in active use on the two days the Department of Revenue may come by to observe will be subject to taxation. The real question in cases like this should be whether the church is attempting to gain an exemption for more land than is necessary for its purposes. No such situation exists here. I therefore dissent. : u& 8 J?/b7 Justice

November 2, 1983

29f493c6-41c4-4cc1-a2d9-436900984bc6

HANLEY v DEPT OF REVENUE

N/A

82-497

Montana

Montana Supreme Court

No. 82-497 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 JOHN C. and RUTH HANLEY, DORIS A. KROPP, LORETTA L. UBER, et al., Plaintiffs and Appellants, THE DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Defendant and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable R. D. McPhillips, Judge presiding. COUNSEL OF LWCORD: For Appellants: Clary & Clary; Thomas Clary argued, Great Falls, Montana For Respondent: Larry Schuster argued, Dept. of Revenue, Helena, Montana - Submitted: September 16, 1983 Decided: December 22, 1983 Filed: DEC? ? 1983 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is a continuation of what has been tabbed the "34%" property tax controversy, which has been brewing in this state for several years. A group of Cascade County taxpayers brought this petition for declaratory judgment and writ of mandamus seeking reinstatement of property values which had been set by the county tax appeal board in 1980 and subsequently raised by the Department of Revenue. From the District Court's order denying the petition this appeal is taken. In 1975, the Montana legislature instituted a new procedure for appraisal of all taxable property in Montana. Section 15-7-111, MCA, provides an "appraisal cycle" approach to revaluation of taxable property. Over a five year period or cycle, all taxable property in the state is to be appraised and its value updated. Once the property values are set, they are to remain stationary until the next cycle begins and new values are set. This procedure was enacted to comply with the Montana constitutional mandate that the state, through the Department of Revenue, ". . . shall appraise, assess and equalize the valuation of all property which is to be taxed in the manner provided by law." 1972 Constitution of the State of Montana, Article VIII, Section 3. The present cycle began in 1978 and will be completed in 1985, a two year extension having been granted by the legislature in 1981. Chapter 350, Section 3, Laws of Montana (1981). The properties which are the subject of this appeal are "Class 4" properties as defined in Section 15-6-134, MCA, and include both residential property and commercial improvements to real property. The appraisals of "Class 4" property conducted by D.O.R., were done pursuant to the valuation guidelines from two different appraisal manuals. Residential property was appraised from the 1972 Montana Appraisal Manual and commercial improvements were appraised from the 1976 Marshall-Swift Appraisal Manual. The use of different manuals gave rise to the " 3 4 % " controversy which has plagued D.O.R. since 1978. After the cycle commenced, it became apparent to taxpayers across the state that the relative values of similar "Class 4" properties were not always comparable. Several appraisals were contested before various county tax appeal boards; the taxpayers contending that the appraisal values reached by using the Marshall-Swift manual were on the average much higher than the appraisal values reached by using the Montana Manual. In 1980, appellants contested their valuations before the Cascade County tax appeal board, and were granted a 34% reduction from their 1978 assessed values, to be effective through the remainder of the current appraisal cycle. D.O.R. did not appeal this decision. Approximately the same time appellants' reductions were granted, a change of policies and personnel took place at D.O.R. A new Director was appointed and it was soon acknowledged by D.O.R. that there was a disparity between the relative values resulting from use of the different manuals. Attempting to find an adequate solution, D.O.R. consulted local officials, county commissioners and school boards to seek advice. From these discussions and the recommendation of a D.O.R. appraiser, it was determined that t h e d i s p a r i t y averaged approximately 12%. I n June of 1981 a proposed s t i p u l a t i o n agreement was s e n t by D.O.R. t o each taxpayer w i t h an a p p e a l of t h e commercial v a l u a t i o n s pending b e f o r e a county t a x a p p e a l board, o f f e r i n g a 12% r e d u c t i o n from t h e 1978 v a l u e s . S e v e r a l t a x p a y e r s accepted t h i s o f f e r , b u t a p p e l l a n t s and t h e m a j o r i t y of t h o s e c o n t a c t e d d i d n o t . I t was a p p a r e n t l y f e l t by D.O.R. t h a t t h e s p o r a d i c r e s p o n s e s were n o t s o l v i n g t h e problem. Thus a d i r e c t i v e was i s s u e d t o each county a s s e s s o r i n t h e s t a t e o r d e r i n g t h a t a l l v a l u e s of commercial p r o p e r t y reached by u s e o f t h e Marshall-Swift manual be r e t u r n e d t o t h e i r 1978 v a l u e s and reduced by 12%. E f f e c t i v e J a n u a r y 1, 1982, t h i s r o l l b a c k was t o t a k e p l a c e r e g a r d l e s s of whether t h e p a r t i c u l a r p r o p e r t y v a l u e s were t h e s u b j e c t of p a s t o r p r e s e n t a p p e a l s o r were n o t being c o n t e s t e d a t a l l . T h i s d i r e c t i v e a p p l i e d t o a p p e l l a n t s ' p r o p e r t y and had t h e n e t e f f e c t of r a i s i n g t h e i r p r o p e r t y v a l u e s by 22%. A p p e l l a n t s a p p e a l e d t h i s r o l l b a c k t o t h e C a s c a d e County t a x a p p e a l board. A t t h e same t i m e a p p e l l a n t s f i l e d t h i s a c t i o n i n D i s t r i c t Court s e e k i n g a d e c l a r a t o r y judgment t h a t t h e procedure i n s t i t u t e d by t h e d i r e c t i v e was i l l e g a l and improper and a w r i t of mandamus r e q u i r i n g D.O.R. t o r e t u r n t h e a p p r a i s e d v a l u e s of a p p e l l a n t s ' p r o p e r t y t o t h o s e set by t h e Cascade County t a x a p p e a l board i n 1980. B r i e f s were f i l e d and t h e m a t t e r was heard b e f o r e Judge R.D. M c P h i l l i p s . F i n d i n g s of f a c t and c o n c l u s i o n s o f law were e n t e r e d and t h e p e t i t i o n was denied. A p p e l l a n t s moved t o amend t h e f i n d i n g s and c o n c l u s i o n s o r i n t h e a l t e r n a t i v e g r a n t a new t r i a l . A f t e r reviewing a d d i t i o n a l b r i e f s and h e a r i n g o r a l arguments, t h e motion was d e n i e d . T h i s a p p e a l is t a k e n from t h e o r d e r denying a p p e l l a n t s ' p e t i t i o n . Three i s s u e s a r e r a i s e d f o r c o n s i d e r a t i o n : (1) Can D.O.R. circumvent t h e county t a x a p p e a l b o a r d ' s d e c i s i o n w i t h i n t h e a p p r a i s a l c y c l e , o r is it p r e c l u d e d from doing s o by A.R.M. 2.51.307(3) (Admin. Rules of Montana)? ( 2 ) Are a p p e l l a n t s p r e c l u d e d from r a i s i n g t h e f i r s t i s s u e f o r f a i l u r e t o r a i s e it a t t h e D i s t r i c t Court l e v e l ? ( 3 ) Should t h e D i s t r i c t Court have r e q u i r e d D.O.R. t o r e t u r n t h e v a l u a t i o n s of a p p e l l a n t s ' p r o p e r t y t o t h o s e g r a n t e d by t h e Cascade County t a x a p p e a l board i n 1980? Our answer t o t h e second i s s u e d i s p o s e s of t h e f i r s t i s s u e , which w i l l n o t be d i s c u s s e d . A p p e l l a n t s a r g u e t h a t D.O.R. should n o t be allowed t o change t h e v a l u a t i o n s of t h e i r p r o p e r t y because it d i d n o t a p p e a l t h e 1980 Cascade County t a x a p p e a l board r u l i n g . A.R.M. 2.51.307(3) (Admin. Rules of Montana) would seem t o r e q u i r e such a h o l d i n g a s it is a r e s t a t e m e n t of t h e d o c t r i n e of r e s j u d i c a t a adapted t o f i t t h e p u r p o s e s of t h e s t a t e and county t a x a p p e a l boards. However, D.O.R. c o r r e c t l y c o n t e n d s t h a t s i n c e a p p e l l a n t s d i d n o t r a i s e t h i s t h e o r y i n t h e District C o u r t , t h e y may n o t d o s o on a p p e a l . I t h a s l o n g been t h e r u l e i n Montana t h a t a l e g a l t h e o r y r a i s e d f o r t h e f i r s t t i m e on a p p e a l w i l l n o t be c o n s i d e r e d by t h i s Court. Chamberlain v. Evans ( 1 9 7 9 ) , 180 Mont. 5 1 1 , 5 9 1 P.2d 237. A p p e l l a n t s ' p e t i t i o n f o r d e c l a r a t o r y judgment and w r i t of mandamus a l l e g e d t h a t D.O.R. had i m p r o p e r l y r e a p p r a i s e d o r r e a s s e s s e d t h e i r p r o p e r t y w i t h i n t h e a p p r a i s a l c y c l e . On a p p e a l , t h e y b r o a d l y s t a t e a s t h e i r t h e o r y b e f o r e t h e D i s t r i c t Court t h a t " p r o c e d u r a l d e f e c t s " p r e c l u d e d t h e D . O . R . I s a t t e m p t e d a c t i o n s . They have argued a p p l i c a t i o n of t h e above c i t e d a d m i n i s t r a t i v e r u l e , and a s s e r t t h a t it is n o t a new l e g a l t h e o r y b u t a d d i t i o n a l s u p p o r t f o r t h e i r " p r o c e d u r a l d e f e c t s " t h e o r y . T h i s argument is n o t p e r s u a s i v e because " p r o c e d u r a l d e f e c t s " is much t o o broad t o be c o n s i d e r e d a p p e l l a n t s 1 l e g a l t h e o r y f o r t h i s purpose. A p p e l l a n t s p o i n t e d o u t t h e p r o c e d u r a l d e f e c t s i n t h e i r p e t i t i o n and argued them b e f o r e t h e D i s t r i c t Court. W e have p r e v i o u s l y h e l d t h a t t h e proposed a p p l i c a t i o n of a s t a t u t e r a i s e d f o r t h e f i r s t time on a p p e a l w i l l n o t be c o n s i d e r e d . Hares v. Nelson ( 1 9 8 1 ) , 195 Mont. 463, 637 P.2d 1 9 . A s w i t h t h e s t a t u t e i n Hares, t h e proposed a p p l i c a t i o n of t h e r u l e r a i s e s an e n t i r e l y new set of q u e s t i o n s n o t argued b e f o r e o r p r e s e n t e d t o t h e District Court. There can be no e r r o r on a n i s s u e n o t p r e s e n t e d t o o r r u l e d on by t h e lower c o u r t , t h u s we w i l l n o t review t h e q u e s t i o n on a p p e a l . A p a r t y complaining o f e r r o r must s t a n d o r f a l l on t h e grounds r e l i e d upon i n t h e t r i a l c o u r t . S t a t e e x r e l . , D e p a r t m e n t o f H e a l t h and Environmental S c i e n c e s v. L a s o r t e ( 1 9 7 9 ) , 182 Nont. 267, 596 P.2d 477. By r a i s i n g t h e t h i r d i s s u e and p h r a s i n g it i n such a broad way, a p p e l l a n t s a t t a c k t h e D i s t r i c t C o u r t ' s h o l d i n g t h a t t h e f a c t s and law p e r t a i n i n g t o t h e c a s e w a r r a n t e d n e i t h e r a d e c l a r a t o r y judgment i n t h e i r f a v o r , nor i s s u a n c e of a w r i t o f mandamus. The f a c t s found by t h e t r i a l c o u r t a r e n o t c o n t e s t e d on a p p e a l , and s o w e t e s t o n l y t h e c o n c l u s i o n of t h e D i s t r i c t Court t h a t a p p e l l a n t s a r e n o t e n t i t l e d t o a d e c l a r a t o r y judgment o r w r i t of mandamus a s a matter of law. We first address the District Court's refusal to issue a declaratory judgment in appellants' favor . As noted in the discussion of the previous two issues, appellants claimed in the District Court that D.O.R.'s actions were procedurally incorrect. Specifically, they contend that the valuation of taxable property cannot be altered during the course of an appraisal cycle. Our inquiry is thus limited to deciding whether the valuation of taxable property in this state may be changed in the midst of an appraisal cycle in the manner it was done here. There is no question that the 1978 appraisals of "Class 4" property did not always result in equivalent values being placed on similar properties. The use of two different appraisal manuals, and divergent sets of valuation statistics belie this difference. This Court noted in Department of Revenue v. State Tax Appeal Board and ................................................... Countryside Village (M0nt.1980)~ 613 P.2d 691, 37 St.Rep. 1063, that, "If different valuation statistics are applied to different pieces of property in the same legal classification, an illegal disparity in valuation is likely to result." 613 P.2d at 693, 37 St.Rep. at 1065. The factual background of Countryside, was the same as that which gave rise to the present controversy, the disparity caused by use of the two manuals being the focus of that case as well. Though we did not hold that there was an illegal disparity in Countryside Village, D.O.R. has since concluded that there in fact was an illegal disparity and by their actions attempted to remedy the problem. D.O.R. properly assumed the responsibility of a l l e v i a t i n g t h e problem. The S t a t e is c o n s t i t u t i o n a l l y a u t h o r i z e d and d i r e c t e d t o " [A] p p r a i s e , a s s e s s and e q u a l i z e t h e v a l u a t i o n of a l l p r o p e r t y which is t o be taxed i n t h e manner provided by law." 1972 C o n s t i t u t i o n of t h e S t a t e of Montana, A r t i c l e V I I I , S e c t i o n 3 (emphasis s u p p l i e d ) . The S t a t e h a s i n t u r n empowered D.O.R. t o , " [ A l d j u s t a n d e q u a l i z e t h e v a l u a t i o n of t a x a b l e p r o p e r t y among t h e s e v e r a l c o u n t i e s and d i f f e r e n t c l a s s e s of t a x a b l e p r o p e r t y i n any county and i n t h e s e v e r a l c o u n t i e s and between i n d i v i d u a l t a x p a y e r s . . . " S e c t i o n 1 - 9 - l O l ( 1 ) MCA (emphasis s u p p l i e d ) . D.O.R. was c l e a r l y a c t i n g u n d e r i t s c o n s t i t u t i o n a l mandate and a u t h o r i t y t o e q u a l i z e v a l u e s of t a x a b l e p r o p e r t y . A s noted above, a p p e l l a n t s a t t a c k e d D . O . R 1 s a c t i o n s i n t h e D i s t r i c t Court by contending t h a t t h e y had a c t u a l l y r e a p p r a i s e d t h e p r o p e r t y , which c o u l d n o t be done w i t h i n t h e a p p r a i s a l c y c l e . The D i s t r i c t Court d i d n o t f i n d t h i s argument p e r s u a s i v e and n e i t h e r do w e , f o r two r e a s o n s . F i r s t , a p p r a i s a l o r v a l u a t i o n is t h e a c t o f a s c e r t a i n i n g t h e market v a l u e of t a x a b l e p r o p e r t y (see T i t l e 1 5 , Chapter 7 , Montana Code A n n o t a t e d ) , and d e a l s w i t h t h e i n d i v i d u a l a s p e c t s of s p e c i f i c p r o p e r t y . E q u a l i z a t i o n , on t h e o t h e r hand, refers t o a d j u s t m e n t s made between c l a s s , county and i n d i v i d u a l p r o p e r t y v a l u e s (see S e c t i o n 15-9-101(1) MCA) and is a much broader and more amorphous power. D.O.R. c l e a r l y was r e l y i n g on t h e i r a u t h o r i t y t o e q u a l i z e h e r e . Second, t h e power t o e q u a l i z e i n c l u d e s t h e power t o ad j u s t a p p r a i s e d v a l u e s . W e h a v e h e l d t h a t t h e c o n s t i t u t i o n a l and s t a t u t o r y d i r e c t i v e t o e q u a l i z e r e q u i r e d t h e S t a t e Board o f E q u a l i z a t i o n t o , Ir[D]o a l l t h i n g s necessary to secure a fair, just and equitable valuation of all taxable property among the counties, and between the different individual taxpayers. " (emphasis supplied) State ex rel. Board of Equalization v. Price (1971), 157 Mont. 134 at 140, 483 P.2d 284 at 288. See also Section 15-9-101(1), FICA. After the 1972 Montana Constitution was enacted the State Board of Equalization was split, and eventually replaced by the State Tax Appeal Board and D.O.R. D.O.R. received the administrative powers of the old Board of Equalization, including the broad power to equalize the values of taxable property in the state affirmed in Price. Department of Revenue v. Burlington Northern, Inc. (1976), 169 Mont. 202, 545 P.2d 1083. The overall effect of D.O.R. Is action may have been to set new appraised values, but this was within their power to equalize. This Court has held that when D.O.R., or its predecessor, becomes aware of unequal values of taxable property, it has a duty to equalize. - State ex rel. Schoonover v . Stewart (1931), 89 Mont. 257, 297 P . 476. D.O.R. is required to, " [D]o all things necessary to secure a fair, just and equitable valuation of all taxable property." Montana National Bank of Roundup v. Department of Revenue (1975), 167 Mont. 429 at 431, 539 P.2d 722 at 724. There can be no doubt that the power to equalize includes the power to alter appraised values set at the beginning of an appraisal cycle. Appraisal is an administrative function utilized to facilitate the collection of revenue in the state. However, the power and duty to equalize is constitutionally mandated to ensure that this collection of revenue is done in a just and equitable manner. We therefore hold that D.O.R. has the authority, when acting under its power to equalize, to change the taxable value of property in this state within an appraisal cycle to comply with its constitutional mandate to tax on a uniform basis. The District Court properly refused to issue the declaratory judgment requested. Appellants rested their request for a writ of mandamus on the argument that D.O.R. had a clear legal duty to rescind the new valuations placed on their property. This was apparently done in anticipation of a declaratory judgment that the procedures followed in setting these new values were improper and illegal. Since we hold that the District Court was correct in denying appellants' petition for declaratory judgment, the clear legal duty upon which their case hinged is nonexistent. The District Court properly refused to issue the writ of mandamus. Finally, we point out two rulings which are absent from this decision. First, we make no ruling on the correctness of the values placed by D.Q.R. on appellants' property. Nor do we hold that D.O.R. has unbridled discretion to set property values when exercising its power to equalize. We only hold that it is within the parameters of D.O.R. 's equalization power to adjust the taxable value of property within an appraisal cycle. Appellants' approach to this lawsuit has been to attack D.O.R.'s authority to take the contested action. The propriety of the new values has only been tangentially mentioned, and no probative evidence from either side was forthcoming in the trial court or on appeal. We note that appellants filed an appeal with the Cascade County tax appeal board simultaneous to filing the case at bar, and initial determination of that issue will properly be made in that forum. "Tax appeal boards are particularly suited for settling disputes over the appropriate valuation of a given piece of property or a particular improvement, and the judiciary cannot properly interfere with that function." Northwest Land and Develo~ment of Montana, Inc. v. State Tax Appeal Board (Mont. 1983), 661 P.2d 44 at 47, 40 St.Rep. 470 at 473, citing Larson v . Department of Revenue (1975), 166 Mont. 449 at 457, 534 P.2d 854 at 858, and Blair v. Potter (1957), 132 Mont. 176, 315 P.2d 177. Second, we do not rule on the question of whether D.O.R. can effectively overrule a county or State Tax Appeal Board decision by exercising its power to equalize. As noted above, appellants improperly raised this issue on appeal as it was not raised at the District Court level. The District Court denial of appellants' petition for declaratory judgment and issuance of a writ of mandamus is a£ f irmed. We concur: sitting in place of Mr. kustib,e Frank B. Morrison Jr. i . - + , ' Justices Mr. Justice Fred J. Weber dissents as follows: In general I agree with the majority opinion in its well written legal analysis of the basic issue of the equalization power of the DOR. I dissent from its specific application in this case. I do not conclude that it is necessary as a matter of law to he trapped into the position of approving the technique used by the DOR to overrule the decision of the County Tax Appeal Board (not appealed by the DOR) with a resulting 22% increase in property tax value for the plaintiffs. I concede that the primary argument on the part of the plaintiffs at the district court level was directed to the lack of power to reappraise assessments statewide. I further agree with the majority conclusion that the DOR does have a power of statewide equalization. The majority states that it does not rule on the question of whether the DOR can effectively overrule a county tax appeal board decision by exercising its power to equalize, pointing out that the plaintiffs improperlv raised the issue on appeal for the first time. I disagree with that conclusion. The petition for declaratory judgment on the part of the plaintiffs in substance alleged: (1) Plaintiffs protested appraisal of their property in 1979 or 1980, and obtained a 34% reduction in appraised value for those years. (2) In 1981 plaintiffs' appraised values were the same as 1980. (3) DOR requested the Cascade County assessor to return the appraised value for taxpayers improvements to the value set by the DOR in 1978 and the appraisal office did so. (4) DOR then directed the coun.ty assessor to reduce the 1978 value by 12% on all improvements appraised from the 1976 Marshall Valuation Service for the tax years 1982, 1983, 1984 and 1985. In the prayer the plaintiffs asked for a declaratory judgment finding that the procedure adopted by the DOR in attempting to adjust the appraised value of improvements by returning the value to a 1978 level and reducing by only 12% is illegal and improper. The District Court reached the following conclusion: "That DOR, in utilizing a. uniform equalization process which reduces the value of all commercial improvements by 12% for tax year 1982 and thereafter, proceeded to do so in a wholly lawful manner, both procedurally - a n F ~ubstanti~el~." (emphasis added) The record does not support the conclusion as to these taxpayers and can properly be classed as "clearly erroneous" as to them. A determination of value at the county tax appeal board level is binding upon the DOR. A.R.M. 5 2.51.307(3) states: " (3) The decision of the county tax appeal board shall be final and binding on all interested parties for the tax year in question unless reversed or modified by the state tax appeal board review. If not reviewed by the state tax appeal board, the decision of the county tax appeal board shall also be final and binding - - on all interested parties - - for all subsequent tax years . . . ." (emphasis added) I concede that the majority opinion is correct in holding that the DOR has the general power to equalize tax assessments. However, I would hold that the application of such equalization to the present plaintiff taxpayers is both improper and unlawful. As to these taxpayers, the effect of the equalization is to repeal or overrule the determination by the county tax appeal board. That cannot be done under the regulations to which the DOR is subject. I would hold that the pleadings and proof are sufficient to establish an appraisal of the plaintiff taxpayers' property under the Marshall Valuation Service in 1978 and 1979, reduction of such appraisals by 348 by the county tax appeal board. Subsequent equalization by the DOR had the effect as to plaintiff taxpayers of improperly reducing the 34% figure to 12%, thereby increasing the values by 22%. I would therefore conclude that a declaratory judgment should be entered by the District Court, holding the equalization procedure followed by the DOR was improper as to plaintiff taxpayers who were entitled to rely upon their tax appeal board determination. T concur. 3 4 a 8, & H e Chief ,Justice

December 22, 1983

aea5acbd-ea59-4657-8c07-7073ddbb222a

MONTANA POWER CO v PUBLIC SVC CO

N/A

82-340

Montana

Montana Supreme Court

NO. 82-340 I N T H E SUPREME C O U R T O F T H E STATE OF MONTANA 1983 THE MONTANA P O W E R COMPANY, a Mont. corp. , P l a i n t i f f and Appellant, THE PUBLIC SERVICE COMMISSION, a s an agency of t h e S t a t e of Elontana, Defendant and Respondent. APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , I n and f o r t h e County of Lewis & Clark, The Honorable P e t e r G. Meloy, Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: Gough, Shanahan, Johnson & Waterman; Ronald Waterman argued, Helena, Montana For Respondent: E i l e e n Shore argued, Helena, Montana For Amicus Curiae: Bon. Mike Greely, Attorney General, Helena, Montana William H. Mellor, 111 and Constance F. Brooks, (Mountain S t a t e s Legal Foundation), Denver, Colorado Submitted: May 1 2 , 1983 Decided : October 2 7 , 1983 F i l e d : OGI 2 7 1983 Mr. Justice Fred J. Weber delivered the Opinion of the Court. Montana Power Company (Montana Power) appeals from an order of the District Court of the First Judicial District, Lewis and Clark County. The District Court order denied Montana Power's application for a writ of prohibition and affirmed in part an order of the Public Service Commission (Commission), which prohibited Montana Power from proceeding with a proposed corporate reorganization. We reverse the order of the District Court. The issues presented on appeal are: 1. Can the Commission act summarily without notice or hearing in prohibiting Montana Power from proceeding with the establishment of a holding company while the Commission investiga.tes the proposed reorganization? 2. Does the Commission have the power to prohibit establishment of a holding company by Montana Power during the investigation by the Commission? 3. Does the Commission have subject matter jurisdiction to approve or disapprove the proposed reorganization? Montana Power has proposed the formation of a new corporation, Montana Energy Company, and the reorganization of Montana Power to be accomplished by a reverse triangular merger. Upon completion of the merger, Montana Energy Company would become the sole shareholder of the common stock of Montana Power. The common shareholders of Montana Power would become shareholders of Montana Energy Company through a share-for-share exchange. Following merger, Montana Power would become a direct subsidiary of Montana Energy Company. On February 23, 1982, the Boa.rd of Directors of Montana Power voted to present the reorganiza.tion plan to the shareholders at the annual meeting in May. On the following day, February 24, 1982, Montana Power explained the proposed reorganization to the Commission and advised the Commission that shareholder a.pprova1 would be sought on May 4, 1982. On March 1, 1982, the Commission instituted an investigation of the reorganization plan and issued an order prohibiting Montana Power from implementing the plan until the investigation was completed. The order provided: "1. The Commission staff shall hold a prehearing conference at a time and place to be previously noticed to the public through legal advertisements. "2. The staff shall, at the prehearing conference review with interested persons, the issues set out in this order. Interested persons may propose additions or deletions to those issues, as we11 as suggest procedures to be followed in this Docket. 113 . The Commission staff shall propose to the Commission, following the prehearing conference, the procedures to be followed and any issues not set out in this Order to be considered in this Docket. "4. The Commission staff shall schedule and notice a public hearing to allow this Commission to take testimony and receive public comments concerning issues raised in this Docket. "5. The Montana Power Company is prohibited from - taking any further steps preparing for or - - advancing the establishment of a holdinq compan except for those actions thatTigEt be necessary tg address the issues raised in this Docket, such as preparation of testimony. "6. A copy of this order shall be mailed to the Montana Power Company, the Montana Consumer Counsel and all intervening parties in Docket Nos. 80.4.2 and 81.6.57." (emphasis added) The Commission issued this order without notice or hearing, and without any opportunity for appearance by Montana Power. No deadline was specified for the completion of the investigation. No termination date was prescribed for the order prohibiting action by Montana Power. Following its unsuccessful attempt to invoke the jurisdiction of this Court, Montana Power filed a complaint in District Court on April 19, 1982, seeking a writ of prohibition or injunction on the grounds that the Commission's stay order was issued absent subject matter jurisdiction and absent power to enjoin. The District Court issued a preliminary order allowing the shareholder vote on the reorganization plan. However, the court en joined implementation of the plan until "ten (10) days after entry of an appropriate judgment." The shareholders voted and approved the reorganization plan at the May 1982 shareholders' meeting. The Commission refused to participate at the subsequent show cause hearing. Commission counsel chose not to present evidence or to cross-examine the three Montana Power witnesses, who testified as to the possible effects of the proposed reorganization. The Commission explained to the District Court that it refused to participate because the question of the Commission's subject matter jurisdiction over the proposed reorganization was still pending before the Commission. The Commission also argued that testimony was not required because the issues raised by Montana Power involved questions of law to be resolved by statutory interpretation. As a result, the evidence submitted for consideration by the District Court and this Court is limited to the uncontradicted testimony of the witnesses for Montana Power. Can the Commission act summarily without notice or hearing in prohibiting Montana Power from proceeding with the establishment of a holding company while the Commission investigates the proposed reorganization? The Montana Constitution guarantees equal protection of the laws and due process to all persons. MONT. CONST. art. 11, 55 4 & 17. A l . 1 persons found within the State of Montana are subject to the jurisdiction of the courts; and corporations are included in the definition of "person." Rules 4A & 4B(1), M0nt.R.Civ.P. "A corporation is a 'person' within the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution." Mt. States, Etc. v. Dept. of Pub. Serv. Reg. (Mont. 1981), 634 P.2d 181, 188, 38 St.Rep. 1479, 1487. The power to act summarily by issuing an order prohibiting action by a utility without a hearing is a - 4 - drastic power to be implied only where required for the protection of the public. As noted by James 0 . Freedman, Professor of Law, University of Pennsylvania: " . . . The power to act summarily is a drastic and - - - - - - sensitive one, akin to the injunctive power of a court; - --- - - it is granted to agencies, usually those having the confidence of the legislature, only for the performance of a limited number of tasks. Given the political process by which administrative agencies are brought to birth and the drastic nature of the power to act summaril.y, it is justifiable to assume that a legislature's failure to delegate summary authority was not inadvertent. Whatever arguments can be made in - - - - favor of implying the existence in an agency o f articuEr powers n ~ t ~ ~ r e s s l ~ or p r ~ i s ~ y delegated, : h e 2-- are not appropriate to the power to act summarily. -- -- "Moreover, any assertion of authority to act summarily potentially presents questions of constitutional dimension, particularly with respect to the limitations summary action may impose in the right to a hearing. By enforcing a requirement of statutory authorization, courts insure that they will confront these questions only when the legislature has focused upon them as a matter of policy and has unambiguously elected to present them. " J. Freedman, Summary Action 2 Administrative Agencies, 40 University of Chicago Law Review at 5-6 (1972) (emphasis added). When a summary power is expressly granted, it is ordinarily limited to situations where the public risks avoided by the summary action outweigh the intrusions upon legal rights which would normally follow. Even in cases where a statute expressly grants the power of summary action, constitutional rights still must be protected. Here the Commission acted without notice and without an opportunity for hearing on the part of Montana Power. That type of procedure is in striking contrast to the notice and hearing procedures required in the district courts when restraining orders, preliminary injunctions and permanent injunctions are sought under Title 27, Chapter 19, MCA. Section 69-3-110(5), MCA specifies: "In addition to the other remedies provided by this chapter for the prevention and punishment of any violation of the provisions thereof and all orders of the commission, the commission may compel compliance with the provisions of this chapter and of the orders of the commission by proceedings in mandamus, by injunction, or by other civil remedies." This section shows the clear legislative intent that the Commission use the court system to seek enforcement by injunction, as distinguished from issuing any injunctive type order on its own part. Procedures to protect constitutional rights to notice and hearing are manda-ted by Title 27, Chapter 19, MCA, which governs issuance of injunctive orders by the courts. Our review of the public utility law discloses that the legislature has not specifically addressed the topic with which we are here involved, i.e. corporate reorganization. Chapter 3 of Title 69, covering the regulation of utilities, does not contain any specific procedural requirements regarding notice or hearing. Neither do we find any provision in the Administrative Rules of Montana which authorizes the Commission to make a summary order without notice and opportunity for a hearing. We have also reviewed Title 27, Chapter 19, MCA, entitled "Injunctions." Chapter 19 does not contain any legislative provision specifically applying to corporate reorganizations. By analogy, however, section 27-19-203, MCA is of assistance. That section applies to an adjudicatory proceeding or formal investigation by the Commission relating to continuation or interruption of service. It authorizes the district court to enter a restraining order prohibiting the parties from acting in the manner complained of until the Commission has rendered its decision. Thus, the legislature has provided for issuance of a restraining order, during the pendency of an investigation, without requiring proof on the merits of the entire case prior to the granting of the order. This is comparable to the present case where the Commission concluded that Montana Power must be restrained for the protection of the ratepayers pending its investigation. While section 27-19-201, MCA pertains to injunctions during the course of litigation, subsection (3) allows an injunction when it appears that the adverse party threatens to do some act which will tend to render the judgment ineffectual. This indicates legislative intent that an injunction might be issued in a fact situation comparable to the present case, where the Commission has contended that permitting Montana Power to reorganize would render the Commission's final determination ineffective. In this case, a conference was conducted by the Commissioners on their own motion without notice to Montana Power. The order initiating the investigation of the extent of the Commission's jurisdiction and the ramifications of the proposed reorganization was issued on March 1, 1982. The order contained provisions as to a prehearing conference, procedures during investigation, and a public hearing. Montana Power was ordered not to take any steps in advancing its reorganization plan. The duration of this prohibition was not specified in the order. Counsel informed this Court during oral argument that the Commission's investigation had not been completed and no date had been set by the Commission for its final decision. The restraint on Montana Power has been in effect for over a year and a half. The response of the Commission to questioning regarding the restraint was to challenge Montana Power to show that damages had resulted from the restraint. Apparently the Commission does not feel any constitutional rights of Montana Power have been infringed. Having found no authority in either the Montana Code Annotated or the Administrative Rules of Montana in support of the Commission's power to issue, without notice or hearing, an order prohibiting certain conduct for an indefinite period, we look to case law. This is an issue of first impression in Montana. As Justice Frankfurter observed, fairness of procedure is "due process" in the primary sense. "Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process. ". . . The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is chall-enged, the balance of hurt complained of and good accomplished - these are some of the considerations that must enter into the judicial judgment." Anti-Fascist Committee v. McGrath (1951), 341 U.S. 123, 163, 71 S.Ct. 624, 644, 95 L.Ed. 817, 849 (Frankfurter, J., concurring) . "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner."' Mathews v. Eldridge (1976), 424 u.S, 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32, citing Armstrong v. Manzo, (1965) 380 U.S. 545, 552, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62, 65. The notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. Walker v. Hutchinson City (1956), 352 U.S. 112, Administrative agencies are not exempt from the constitutional restraints of due process requirements. Long ago the United States Supreme Court recognized that due process protections cannot be compromised based on an assertion that expediency was necessary. "Regulatory commissions have been invested with broad powers within the sphere of duty assigned to them by law. Even in quasi-judicial proceedings their informed and expert judgment exacts and receives a proper deference from courts when it has been reached with due submission to constitutional restraints. Indeed, much that they do within the realm of administrative discretion is exempt from supervision if those restraints have been obeyed. All the more insistent is the need, when power has been bestowed so freely, that the 'inexorable safeguard' of a fair and open hearing be maintained in its integrity. The right to such a hearing is one of 'the rudiments of fair play' assured to every litigant by the Fourteenth Amendment as a minimal requirement. There can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored. " Ohio Bell Tel. Co. v. Comm'n. (1937), 301 U.S. 292, 304-05, 57 S.Ct. 724, 730-31, 81 L.Ed 1093, 1101-02 (citations omitted). Due process rights in an action involving a public utility commission were considered in Southwest. Bell Tel. Co. v. Public Util. Com'n (Tex.Civ.App. 1981), 618 S.W.2d 130. The Texas Public Utility Commission issued a summary order, without hearing, ordering a utility company to cease conducting a certain experiment pending an evidentiary hearing on whether the Commission had jurisdiction to prohibit the experiment. In preparation for the experiment, the utility had notified the Commission of its plan, expended large amounts of money and transfered employees. As is the case here, the Commission's summary order was challenged when the utility filed an action for injunctive relief and declaratory judgment on the ground that the Commission lacked authority to issue the summary order. On appeal, the appellate court reversed the trial court and held that the legislature had not given the Commission power by implication to enter, without prior hearing, orders that prohibit any conduct by a public utility. The Court noted that the entire tenor of the Texas Administrative Procedure Act was antithetical to any power in the Commission to issue summary orders that substantially affect legal rights or duties. "The grant of such power is ordinarily limited to situations where the public risks avoided by summary action outweigh the unconstitutional invasions that would normally follow. Even when such a justification exists, the power to act summarily and without prior hearing and adjudication must be directly, expressly and clearly given by the Legislature to the agency." Southwest. Bell, 618 S.W.2d at 134. We note that the Utility Commission appealed to the Texas Supreme Court, which dismissed the case upon being advised that the cause had become moot. We cite the appellate court's decision for its factual similarity to the instant case and its legal analysis. We note that the Texas Supreme Court vacated both the trial court's and the lower appellate court's opinions "without regard to the merits of the cause or the views expressed in the opinion of the court of civil appeals." Public Util. Com'n v. Southwest. Bell el. Co. (1981), 623 S.W.2d 316. The grant of summary power should be limited to situations where the public risk to be avoided by the summary action outweighs the limitation placed on the constitutional rights of the parties. Here there was no time problem. The order of the Commission was dated March 1, 1982. Protection, if any, was needed against the next step in the reorganization process, the stockholders' vote of approval scheduled for May 4. The Commission had more than sufficient time to proceed to court had it chosen to do so. Other than the claimed need for protective action, the Commission has advanced no justification to explain its disregard of the due process rights of the utility. As pointed out by Justice Frankfurter in McGrath, due process is not a yardstick but a delicate process involving the exercise of judgment, which requires a balancing of the hurt complained of and the good accomplished. The Commission has completely failed to demonstrate a hurt which requires summary action on its part without regard to the constitutional due process rights of the Montana Power Company. We have found no statute, regulation, administrative rule or case from which to conclude that the Commission may suspend due process protections where, in the opinion of the Commission, doing so would be in the public interest. We hold that under the facts of this case the Commission disregarded the due process rights of Montana Power in issuing its summary order without notice or hearing. 11. Does the Commission have the power to prohibit establishment of a holding company by Montana Power during the investigation by the Commission? In general, property devoted to public use or to a use in which the public has an interest ca.n be controlled by the public for the common good. State ex rel. Mt. States T. & T. Co. v. District Court (1972), 160 Mont. 443, 447, 503 P.2d 526, 529. In Montana, public utilities are regulated by the Public Service Commission through the exercise of powers granted by the Legislature. "[Tlhe Commission is a creature of, owes its being to, and is clothed with such powers as are clearly conferred upon it by statute." Great Northern Utilities Co. v . Public Service Com'n. (1930), 88 Mont. 180, 203, 293 P. 294, 298. The Commission has no inherent common law powers. City of Polson v. Public Service Commission (1970), 155 Mont. 464, 473 P.2d 508. "It has only limited powers, to be ascertained by reference to the statute creating it, and reasonable doubt as to the grant of a particular - - - - - power will be resolved against the existence of the -- -- power. Collier on Publ-ic Service Companies, 404-405." State v. Boyle (1921), 62 Mont. 97, 102, 204 P. 378, 379 (emphasis added). Section 69-I--102, MCA defines the role of the Commission: "A public service commission is hereby created, whose duty it is to supervise and regulate the operations of public utilities . . . Such supervision and regulation shall be in conformity with this title." Legislative intent that the Commission supervise and regulate public utilites in conformity with Title 69 is reiterated in section 69-3-102, MCA: "The commission is hereby invested with full power of supervision, regulation, and control of such public utilities, subject to the provisions of this chapter . . .." While full power of supervision, regulation and control of utilities is granted to the Commission, the legislature has provided that this power does not include judicial powers. Section 69-3-103(1), MCA, provides: "In addition to the modes of procedure hereinafter prescribed in particular cases and classes of cases, sa.id commission shall have power to prescribe rules of procedure and to do all thinqs necessary and c~nv~nient in the exercise of the powers conferred by this chapter upon the commission; provided that nothing in this chapter - - shall be construed as vesting judicial powers on - - said co~ission . . ." (emphasis added). The Commission claims implied power to enjoin the reorganization of Montana Power, pending investigation, under the legislative grant of "full power of supervision, regulation, and control" in section 69-3-102, MCA. The Power Company argues that the Commission exceeded its authority by issuing an order, on its own motion without notice or hearing, enjoining Montana Power from implementing its decision to reorganize. The Commission's right to regulate rates and to supervise services is undisputed. See sections 69-3-108 and 69-3-301 through -330, MCA. The scope of the Commission's jurisdiction over corporate reorganization and the existence of Commission power to enjoin sua sponte are at issue here. Since no statutory provision expressly authorizes Commission involvement in corporate reorganization or in the formation of new corporations, we look to Title 69, Chapter 3, MCA as a whole, to determine the scope of the Commission's powers. Part 1 of Chapter 3 defines "public utility" and the Commission's general powers; Part 2 specifies the requirements under which public utilities must function; Part 3 sets forth the Commission's ratema.king procedures; and Part 4 defines procedures for review of Commission actions. Section 69-3-106 (1) , MCA, entitled "Supervision of Management of Public Utilities," defines the legislature's grant of general investigatory powers to the Commission: "The commission shall have authority to inquire into the management of the business of all public utilities, shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from any public utility all necessary information to enable the commission to perform its duties." Subsection (2) of this statute permits the Commission to inspect books and records and to examine officers, agents and employees of the utility. Subsection (3) authorizes the Commission to order production of records. Both parties here agree that section 69-3-106, MCA a.uthorizes the Commission to investigate Montana Power's proposed reorganization and determine how the reorganization might affect future rates and services. Section 69-3-110, MCA is significant in that it specifies the manner in which public utility law is to be enforced by the Commission: "(1) The commission shall inquire into any neglect or violation of the 1a.ws of this state by any public utility . . .. The commission shall enforce the provisions of this chapter and report all violations thereof to the attorney general. "(2) All rates, fares, charges, classifications, and joint rates fixed by the commission shall be enforced and are prima facie lawful from the date of the order until changed or modified by the cornmi-ssion or in pursuance of part 4. All rules, practices, and services prescribed by the commission shall be enforced and enforcement actions shall be brought pursuant to the provisions of part 4 until the rules, practices, or services are changed or modified by the commission upon a satisfactory showing being ma.de. "(3) Upon the request of the commission, it is the duty of the attorney general or the prosecuting attorney of any county to aid in any investigation, prosecution, hearing, or trial had under the provisions of this chapter a.nd to institute and prosecute all actions or proceedings necesary for the enforcement of this chapter. " (4) Any forfeiture or penalty herein provided shall be recovered and suit thereon shall be brought in the name of the state in the district court of any county having jurisdiction of the defendant. The attorney general shall be the counsel in any proceeding, investigation, hearing, or trial prosecuted or defended by the commission, as also shall any prosecuting attorney selected by the commission or other special counsel furnished the commission in any county where such action is pending. " ( 5 ) In addition to the other remedies provided by this chapter for the prevention and punishment of any violation of the provisions thereof and all orders of the commission, the commission may compel compliance with the provisions of this chapter and of the orders of the commission & proceedings in mandamus, injunction, or 5 other c i v z remedies." (emphasis added) Legislative intent that the Commission use the court system is clear. Refusal to comply with a commission order, issued pursuant to section 69-3-106, MCA, subjects the utility to liability for a fine. The fine is to "be recovered in a civil action" in which the Commission would be the complaining party. Section 69-3-206 (2), MCA. Here legislative intent that the Commission utilize the court system is again obvious, since a civil action can only be commenced by filing a complaint with the court. Rule 3, M0nt.R.Civ.P. Other remedies provided for in Part 2 ("Requirements of the Public Utilities") of Chapter 3 include: (1) a civil action to recover penalty payments for failure to make reports or permit examination of utility records (section 69-3-208, MCA) ; (2) a civil action to recover penalty payments for violation of safety regulations (section - 14 - 69-3-207, MCA) ; and (3) court enforcement of penalties for violations of "any lawful requirement or order made by the commission or any court" (section 69-3-209, MCA) . Legislative intent that the Commission use the court system to enforce its requirements, regulations and orders is evident from the language of sections 69-3-206 (2) and -207(2), both of which provide: "Such fine sha.11 be recovered in a civil action upon the complaint of the commission in any court of competent jurisdiction." It is anomalous to suggest that the Legislature granted to the Commission implied power to enjoin a corporate reorganization while requiring the same Commission to go to court in order to collect a $100 fine. The enforcement provisions (sections 69-3-110, 69-3-206, -207 and -209, MCA) do not specifically extend the Commission's power to inquire into management, as defined in section 69-3-106, MCA. None of these provisions authorizes or suggests that the Commission should enforce its orders by temporary ' restraining order or in junction issued by the Commission itself. Part 3 ("Ratemaking Procedures") of Chapter 3 provides for the filing of schedules of rates, tolls and charges, review by the Commission, and processing of complaints from the public. Section 69-3-321 (1) , MCA permits the Commission to investigate any complai-nt made against a public utility by a person or entity that is "directly affected" by the utility's rates, tolls, charges, schedules, regulations, measurements, practices, acts or service. Section 69-3-324, MCA authorizes the Commission to initiate an investigation without a formal complaint by an affected party: "The commission may at any time, upon its own motion, investigate any of the rates, tolls, charges, rules, practices, and services and after a full hearing as provided in this part may make by order such changes as may be just and reasonable, the same as if a formal complaint had been made." Again, this initiation of investigation is limited to rates, tolls, charges, rules, practices and services. In Part 4 ("Review of Commission Actions") I the legislature authorized district courts to issue injunctive relief from commission orders and to review the reasonableness and lawfulness of such orders. Like the enforcement provisions in Parts 1 and 2, the review provisions of Part 4 refer the parties to the court system. Section 69-3-402, MCA specifies who may seek relief from commission orders. Section 69-3-403 (1) , MCA authorizes the district courts to review such orders and to issue injunctive relief upon a proper showing: "Any party in interest, being dissatisfied with the order of the commission fixing any rate, fare, charge, classification, or joint rate or any order fixing or prescribing any rule, practice, or service, may apply to the district court for an injunction, staying and suspending the operation of the order of the commission pending the final determination of the reasonableness and lawfulness of said order in the courts. Upon proper showing an injunction shall be issued such court." - - (empha.~ is added) Sections 69-3-110(5) and 69-3-403(1), MCA are the only statutes in the "Regulation of Utilities" chapter of Title 69 that deal with the subject of injunctions. As noted above, neither of these statutes grants a.uthority to the Commission to enjoin utilities. Both statutes direct the parties to the district court. The Commission's standing to seek civil remedies and its ratemaking authority are the only tools specifically provided by sta.tute as methods by which the Commission may supervise, regulate and control utilities. Section 69-3-102, MCA invests the Commission with "full power of supervision, regulation, and control" of public utilities. The Commission, therefore, has discretion in choosing the means by which it will accomplish its functions. It does not, however, have limitless power or legislative prerogative. Having analyzed the scope of the powers statutorily granted to the Commission, we find no basis for respondent's contention that the legislature, by implication, has given the Commission power to prohibit corporate reorganization by its own order. The legislature's intent that the Commission, public utilities and affected parties use the courts is expressed in all four parts of Chapter 3 of the Public Utilities Act. Use of the court system provides a necessary check and balance. The legislature has provided a procedural framework that should not be abandoned merely because the matter to be investigated by the Commission was not specifically addressed by the legislature. Excepting orders prohibiting termination of service pending hearing on a consumer complaint, nothing in Chapter 3 indicates legislative intent to grant to the Commission broad power to issue injunctions or orders of that type. On the contrary, those sections that d-eal specifically with the subject of in junctions expressly direct the Commission to the district courts. In addition, the legislature has specified that, upon motion of the Consumer Counsel, interested persons or their legal representatives, a district court may enter a restraining order prohibiting a utility from engaging in a certain course of conduct pending a. formal investigation. Such a restraining order may become an injunction for the duration of the proceeding before the Commission. Section 27-19-203, MCA. Although this section applies to "continuation or interruption of service," it illustrates clear legislature intent that the Commission apply to the court for restraining orders and injunctions, rather than issue such orders itself. In summary, the legislature has concluded that the Commission does not have judicial powers and has consistent1.y set forth its view that enforcement of the Public Utilities Act by the Commission is to be sought through court injunctions or other court process. The Commission argues that the possibility of irreversible or irreparable harm to ratepayers warranted its conduct in prohibiting further action by Montana Power and that it is reasonable to infer such apower in order to protect the ratepayers. That argument disregards the remedies which are granted to the Commission. As previously mentioned, section 6 9 - 3 - 1 1 0 ( 5 ) , MCA provides that the Commission may compel compliance with the provisions of the chapter by injunction from the district court. On March 1, 1982, the Commission was advised of the reorganization plan. The next step in that reorganization plan was to submit the question to the Montana Power stockholders on May 4, 1982. This left ample time for the Commission to proceed to seek an injunctive order. Following appropriate notice to Montana Power and a hearing at which the Commission could present evidence showing the possibility of irreversible and irreparable harm from the corporate reorganization, the District Court could properly have issued an injunction, if the evidence were sufficient to move the discretion of the court to restrain further steps in the reorganization. We conclude that the statutes of Montana do not expressly or by implication confer upon the Commission the power to restrain or enjoin the establishment of a utility holding company during investigation. The Commission has failed to show any need for its exercise of such a summary power. Adequate means for prohibition and restraint are provided in the court system. We further conclude that the - 18 - reasonable doubt as to the grant of the summary power to the Commission will be resolved against the existence of the power. We hold that the Commission does not have the summary power by its own order to prohibit or restrain reorganization during its investigation. 111. In the hearing before the District Court, no evidence was submitted in behalf of the Commission, or otherwise, showing any factual need for the prohibition or restraint. The only evidence submitted was that in behalf of Montana Power. Had the Commission chosen to submit evidence to substantiate its contentions, it might have been appropriate for the District Court to enter an order restraining the implementation of the reorganization. In the absence of a factual basis for such a conclusion, the order of the District Court cannot be sustained. Ironically, the District Court ruled that it had no factual basis on which to exercise its own injunctive powers; yet, it concluded that the Commission had power to enjoin without a demonstrated fa.ctual basis and affirmed the Commission's stay of the reorganization. We hold that the District Court should have granted the writ of prohibition against the Commission. IV. The last issue is whether the Commission has subject matter jurisdiction to approve or disapprove the proposed reorganization. We recognize that this question is the central issue in the proceeding taking place before the Commission pursuant to its order of March 1, 1982. We therefore conclude that it would be premature for this Court to attempt to rule on that issue. That issue will not be ripe for our consideration until the decision by the Commission in its own proceeding and subsequent proceedings in the District Court. We therefore do not rule on Issue 3. - 19 - The judgment of the District Court is reversed and the cause is remanded for the entry of an appropriate writ of prohibition against the Public S We concur: 3 ~ 4 dL@*&j Chief Justice Mr. Justice Frank B . Morrison, Jr. dissents as follows: I respectfully dissent from all aspects of the majority's opinion. It is abundantly clear to me that if the Public Service Commission's statutory powers are to be at all meaningful, the Commission must have the authority to issue orders deemed essential for exercising those powers. The March 1, 1.982, order by the Commission, which prohibits Montana Power from implementing its proposed reorganizational plan pending an investigation by the Commission of the plan and its effects, is such an order. Granted, there is no express statutory provision giving the Commission the power to issue, without notice or hearing, that order. But we should not strictly limit the Commission's powers to those expressly granted. The legislature can not possibly foresee every circumstance under which the Commission will exercise its express powers. Therefore, we have previously, and should continue to recognize that the legislature has also, by implication, given the Commission the powers required to carry out its express powers. "But the powers which an officer, commission or department may exercise are not confined to those expressly granted by the Constitution or statutes of the state. 'In addition to powers expressly conferred upon him by law, an officer has by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom. But no power will be implied other than those which are necessary for the effective exercise and discha.rge of the powers and duties expressly conferred.' (46 C.J. 1032.)" ~uillot* v. State Highway Commission (1936), 102 Mont. 149, 153-154, 56 P.2d 1072, 1074. To reaffirm this holding would not be contra to any case wherein we have held the Commission to be granted only those powers expressly conferred upon it by the legislature. See for example City of Polson v. Public Service Commission (1970), 155 Mont. 464, 473 P.2d 508. We would not be giving the Commission new powers, as such. Rather, we would be giving it the tools needed to implement the powers expressly conferred upon it. " . . . no powers will be implied other than those necessary for the effective exercise and discharge of the powers and duties expressly conferred." State ex Rel. Dra-gstedt v. State Board of Education (1936), 103 Mont. 336, 338, 62 P.2d 330, 331-332. The powers expressly conferred upon the Commi.ssion are broad. Section 69-3-102, MCA, gives the Commission the power to supervise, regulate and control public utilities. Section 69-3-108, MCA, and Part 3 of Chapter 3, Title 69, MCA, give the Commission the specific authority to supervise, regulate and control the services provided and the rates implemented by public utilities. Section 69-3-324, MCA, permits the Commission to initiate its own investigation of "any of the rates, tolls, charges, practices, and services" of a public utility. And finally, section 69-3-106 (1) , MCA states: "Supervision of management of public utilities. (1) The commission shall have authority to inquire into the management of the business of all public utilities, shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from any public utility all necessary information to enable the commission to perform its duties." The Commission wishes to investigate, pursuant to section 69-3-324, MCA, the effects of Montana Power's proposed reorganiza.tion on its rates and services. It is undisputed that the Commission is expressly granted the authority to do so. It should also be undisputed that in order for such an investigation to be meaningful, any reorganization by Montana Power must be stayed, pending completion of the investigation. Otherwise, the results of the investigation might very well be moot, and the powers expressly bestowed upon the Commission rendered useless. For example, an investigation without such an order may disclose that the reorganization will adversely affect Montana Power's rates and services, but that the reorganization has already resulted in a holding company which insulates the individual companies from the Commission's control. The people of Montana would then lack any recourse against the adverse rates and services. Surely the legislature did not intend such a consequence. "When 'one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controll..ed by the public for the common good to the extent of the interest he has thus created.'" Great Northern Utilities Co. v. Public Service Commission (1930), 88 Mont. 180, 205, 293 P. 294, 298, quoting Lord Chief Justice Hale, and approved by the Supreme Court in German Alliance Ins. Co. v. Lewis (1914), 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011. The majority considers the proper recourse for the Commission to be the judicial system. Again, I cannot agree. Section 69-3-110(5), MCA, sets forth when the Cornmrnission may seek judicial action: "(5) In addition to the other remedies provided by this chapter for the prevention a.nd punishment of any violation of the provisions thereof and all orders of the commission, the commission may compel compliance with the provisions of this chapter and of the orders of the commission by proceedings in mandamus, by injunction, or by other civil remedies." The Commission has no standing to seek judicial action here because, unlike the examples cited in the majority opinion, the purpose of this order is not to compel compliance with any provision of Chapter 3, Title 69, MCA, nor is it to compel compliance with any order issued by the Commission. Its purpose is merely to stay Montana Power's reorganization, pending an authorized investigation by the Commission. Even if the Commission did have standing to seek a judicial remedy, none of the judicia.1 remedies would be appropriate. In order to obtain a preliminary injunction or a restraining order, the Commission would have to present evidence showing the possibility of irreversible or irrepara-ble harm due to the reorganization. Section 27-19-201(2), MCA. If the Commission could have done that, there would have been no need for the freeze order because the investigation would have been practically complete. In addition, a temporary restraining order would be of no benefit to the Commission because it would last only ten days. I must also take exception with the majority's statement that the Commission's order is actually a judicial order and therefore inappropriately issued by an administrative agency. A four-part test has been adopted by the state of Washington to distinguish legislative-type activities from judicial actions. (1) Whether the court could have been charged in the first instance with the responsibility of making the decision the administrative body must make; (2) Whether the function the administrative agency performs is one that courts have historically been accustomed to performing and had performed prior to the creation of the administrative body; (3) Whether the action involves the application of existing law to past or present facts for the purpose of declaring or enforcing liability rather than reflecting a response to changing conditions through the enactment of a new law of prospective application. ( 4 Whether the action resembles the ordinary business of courts as opposed to that of legislators or administrators. Francisco v. Board of Directors (1975), 85 Wash.2d 575, 537 P.2d 789; reaffirmed in Standow v. City of Spokane (1977), 88 Wash.2d 624, 564 P.2d 1145, appeal dismissed 434 U.S. 992, 98 S.Ct. 626, 54 L.Ed.2d 487. Under this test, the order of the Commission is clearly not judicial and the Commission did not exceed the limits of its powers in issuing it. I find: 1. The Commission has the initial responsibility for determining whether actions by public utilities affect their rates or services. 2. The courts have never performed that function, except to review any initial administrative decision by the Commission. 3. There has been no declaration or enforcement of liabilitv. This is an order which would be applied prospectively. Therefore, it is more a legislative action than a judicial action. Strumsky v. San Diego County Employees Retirement Ass'n (1974), 112 Cal.Rptr. 805, 520 P.2d 29. 4. The action clearly resembles that of administrators. The foregoing responds to that which is set forth in the majority opinion for the guidance of counsel in these proceedings, or, in other words, to the dictum. The holding of the majority is that the Commission disregarded the constitutional due process rights of Montana Power when it issued its summary order without notice or hearing. Due process rights attach when any person is deprived of life, liberty or property. A corporation is included in the term "person". "The right to carry on a lawful business is a property right; due process requires that it not be unreasonably or unnecessarily restricted. U.S. Const., Amend. XIV, Sec. 1; 1972 Mont. Const. Art. 11, Sec. 17." (emphasis supplied) Billings Assoc. Plumbing, Heating & Cooling Contractors v. State Board of Plumbers (1979), 602 P.2d 597, 600, 36 St.Rep. 1996, 1998-1999. Montana Power has failed to show that its right to carry on a lawful business has been unreasonably or unnecessarily restricted. That right has not been restricted. Montana Power remains free to carry on its business as it has for years, pending completion of the Commission's investigation. Further, there has, as yet, been no determination that Montana Power's proposed reorganization is legal. Therefore, Montana Power could not possibly have proved that the temporary stay of its reorganization restricted its right to "carry on a lawful business." Since the Commission's order does not restrict a protectible interest, no notice or hearing was required prior to the issuance of the order. Finally, with respect to the due process issue, I reemphasize that the order merely requires Montana Power to maintain its management system "a.s is", pending completion of the Commission's investigation. The purpose of the investigation is to determine whether the Commission has jurisdiction over Montana Power's proposed reorganization. Exercise by an agency of its power to determine its lurisdiction does not require a hearing. Marshall v. Able Contractors, Inc. (9th Cir. 1978), 573 F.2d 1055. The opinion of the majority, with inadequate legal bases, essentially strips the Commission of any ability to effectively exercise the powers expressly granted it by the legislature. The majority opinion reserves to another day the issue of whether the Public Service Commission can ultimately stop the reorganization. I predict that issue will become moot by reason of fact accomplished. If reorganization prevents the P.S.C. from examining the price Montana Power Company pays its subsidiary for coal then the Montana ratepayer will be the loser and the court system will have sanctioned the victimization. I will not be a party to this result. . 9 - 1 . 1 . iono or able hich.a&'l H: ~ e k d ~ , ' ~istrict Judge, sitting in place of Mr. Justice John C\. Sheehy, disse~ting: I would affirm the decision of the District Court. The March 1, 1982 order of the Public Service Commission prohibited Montana Power Company from implementing its reorganization plan pending an investigation by the Commission to determine whether it would have jurisdiction over the plan.. under these circumstances, the order was a proper exercise of the Commission's regulatory authority. The Plontana legislature has invested the Commission "with full power of supervision, regulation, and control of (Montana Power), subject to th.e provisionsof (Chapter 3 of Title 69, P I C A ) . . . I . Section 69-3-102, MCA. Provisions of Chapter 3 give the Commission specific powers of regulation and control over services provided and rates imposed by PZontana Power. See sections 69-3-108 and Part 3 of Chapter 3, Title 69, MCA. On the other hand, it may not have the power to correct or to neutralize a util.ityls abuses of its corporate, managerial rights if the reorganization proposed has already taken place. Because this corporate plan has the potential to irreparably impair Montana Power's services, or to insulate decisions bearing upon power rates from the control and supervision of the Comnis- sion, and because these potential effects are clearly within the Conmission's regulatory authority, an investigation before the fact is proper, warranted, and also within the Commission's authority. The Commission by its order has not substituted or attempted to substitute its own judgment for that of Montana Power's 3oard of Directors, as no decision regarding corporate reorgani- zation has been made by the Commission. When such a decision is made, if it is, Montana Power can then seek judicial relief from any claimed harm. In the meantime, however, the Commission must be allowed. to exercise its regulatory authority in the first instance to determine the nature and extent of any adverse im- pact which the reorganization as proposed would have upon rates or services, and the scope of its own jurisdiction in regulating, controlling, or even prohibiting corporate endeavors if harmful effects can fairly be anticipated, and are determined to be material. As indicated, the investigation would result only in a determination of whether the Commission has jurisdiction over Montana Power's reorganization plan. it is a well-established principle of law that an administrative agency has the right and duty, in the first instance, to determine the extent of its own jurisdiction over actions by companies which cone under its reach. Marshall v. Burlington Northern, Inc. (9th Cir. 19731, 595 F.2d 511; Marshall v. Able Coctractors, Inc. (9th Cir. 1978), 573 F.2d 1055. Allowing Montana Power to proceed with its reorganization while the Commission investigates to determine its jurisdiction could result in a holding company structure which would insulate the utility's rates and services from further review by the Commission. The Coriunission's statutorily-granted regulatory powers would thereby be rendered totally useless. Without the autlnority to stay the reorganization pending its "jurisdic- tion" investigation, the Commission is stripped of any ability it night otherwise have to control Montana Power for the common good. "Public service 'commissions are generally em- powered to, and are created with the intention that they should, regulate public utilities insofar as the powers and operations of such utilities affect the public interest and welfare.' 64 &i.Jur.2dr Public UtilitiesrS232, p. 740." Northwestern Bell Telephone Co. v. Hagen (N.D. 1975), 234 N.W.2d 841, 845. To reiterate, the Commission's order assists in the implementation of its right to determine whether it has juris- diction over Montana Power's reorganization. The Commission has not sought unlimited authority over Montana Power's manage- rial decisions, nor does the District Court's decision confer any such authority upon the Commission. Rather, the Commission is merely attempting to effectively exercise its authority, under section 69-3-1Cg6(1), MCA, to inquire into the rmnagenent of the business of Montana Power. The exercise of that authority would be an empty ceremony if, while such an inquiry were being conducted, the Commission could not prohibit execution of the proposed management d-ecision. This is particularly true where the decision, once made, may become incapable of being reversed by the Commission and may have permanent and deleterious effects upon the utility's rates and services. Finally, Montana Power has neither alleged nor demonstrated any irreparable harm as a result of the Commission's order. No actual changes in the reorganization plan can be mandated by the Commission without a full hearing, after which Montana Power could seek judicial relief from any claimed harm. Sections 69-3-324 through 69-3-326, P I I C A . Thus, Montana Power's due process rights were not violated by the Commission's order and will be fully protected in the future. The March 1, 1982 order by the Public Service Commission was in furtherance of the Commission's responsibility to pro- tect "future, as well as present, consumer interests." In re Permian Basin Area Rate Cases, 390 U.S. 747, 798, 88 S.Ct. 1344, 1376, 20 L.Ed.2d 312, 353-354; reh. den. 392 U.S. 917, 88 S.Ct. 2050, 20 L.Ed.2d 1379 (1968). It should be upheld. Mr. Justice Daniel J. Shea, dissenting: I agree generally with the views of Justice Morrison expressed in his dissent, and also in general with the views of Judge Keedy. I also add my own views in dissenting from the majority opinion stripping the Public Service Commission of its implied powers to maintain the status quo until a decision on the question of subject matter jurisdiction has been made. The majority decision on the issues raised is baffling. In deciding issue 1, the contention that the Commission could not issue the restraint without notice and hearing to the power company, the majority impliedly holds that the Commission does have the power to issue an order of restraint if it complied with the procedural safeguards of notice and hearing. For if the Commission could not issue a temporary order of restraint, notice and hearing would be an idle act. But then the majority decides just the opposite on issue 2, the question of whether the Commission does have authority to issue a temporary order of restraint. Here the majority holds that the Commission has no such authority. If that is the case then any notice or hearing given pursuant to an assumption that the Commission had the authority would be an idle act indeed. The majority's ruling on issue 2 means that the Commission, once it gave notice and had a hearing, could not follow through with an order of restraint. And to further confuse the issues, on issue 3 the question of whether the Commission had subject matter jurisdiction to approve or disapprove the proposed reorganization, the majority has, by invoking the rule that an administrative agency should first be given the opportunity to rule on its own juri-sdiction, has declined to rule. The result is administrative chaos. The majority decision leaves the Public: Service Commission stripped of authority to maintain the status quo pending its decision of whether it has subject matter iurisdiction. The horse may well be out of the barn if the Commission later rules it has subject matter jurisdiction and enters an order prohibiting the reorganization. The majority suggests that the proper avenue for the Commission is to go to court and obtain a temporary restraining order. But, as Justice Morrison points out, the Commission can go to court to obtain a restraining order only if one of the parties under its jurisdiction refuses to obey its order. Here the Montana Power Company obeyed the order of restraint but at the same time challenged that order in court. Had the Montana Power Company proceeded with its reorganization efforts in violation of the Commission's order, then the Commission could have gone to court to obtain a temporary restraining order. If this Court refuses to rule on the primary question of whether the Public Service Commission has subject matter jurisdiction, but instead leaves the matter initially for the decision of the Public Service Commission, then the Commission should not at the same time be stripped of the means for maintaining the status quo before it reaches its decision. But that is precisely what has happened here. The Public Service Commission has at least temporarily assumed jurisdiction over the question of whether it has the authority to approve of or disapprove the proposed reorganization. To effectuate this temporary assumption of jurisdiction it has told the Montana Power Company not to reorganize until the Commission has investigated the effect of the reorganization on the rate making and regulatory process. Because this Court has refused to rule on the question of subject matter jurisdiction, we must at this point assume that the Public Service Commission does have that jurisdiction and that it has simply taken the steps to maintain the status quo pending its investigation. This Court should not at this juncture, strip the Public Service Commission of the means of maintaining the status quo pending the outcome of its investigation. The powers of the Commission to maintain the status quo must of necessity he implied if the Commission is to have meaningful regulatory powers. Because the Commi-ssion's order is simply one of maintaining the status quo pending its investigation and final determination, which includes a question of whether the Commission will hold that it has subject matter jurisdiction, I fail to see how the Montana Power Company had a right to notice and hearinq before the order maintaining the status quo was issued. The Commission does not have jurisdiction over the Montana Power Company on a case by case basis. Rather, it has continuing jurisdiction over the Montana Power Company in administering the regulatory process, and this act was simply one of continuing this jurisdiction. Furthermore, I fail to see any harm to the Montana Power Company because of this claimed failure to give notice and an opportunity to be heard. It has participated fully in all proceedings before the Commission. From the time the Commission issued the order maintaining the status quo until the present time, the Montana Power Company has been fully participating in the Commission's investigation, and has apparently been fully cooperating with the Commission. Surely the Montana Power Company has availed itself of every opportunity to let its views be known to the Commission. Based on these views, I wou1.d affirm the order of the trial court and let the Public Service Commission's order remain in effect at least until it has decided for itself the question of whether it has subject matter jurisdiction. If the Commission rules it does have subject matter jurisdiction, and if the Commission further rules that the Montana Power Company cannot reorganize, I have no doubt that the case will once again thread its way through the court system. But I would wait for that to happen and not in the meantime deprive the Commission of its implied authority to maintain the status quo before it reaches a decision on the question of subject matter jurisdiction. Despite mv views on the issues, it appears now that by the majority opinion, the Public Service Commission w i 11 be compelled to file an action in District Court asking for a temporary restraining order to remain in effect pending the Commission's ruling. This approach, however, will only bog down the process for any aggrieved party could appeal to this Court from any action that the District Court might take.

October 27, 1983

f390ef84-09aa-4447-baf8-574f5a759179

RASMUSSEN v BENNETT

N/A

83-208

Montana

Montana Supreme Court

No. 83-208 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 M Y RASMUSSEN and PAULINE RASMUSSEN, Plaintiffs and Appellants, LARRY C. BENNETT, CLIFFORD HARDEN, DANIEL P. J A I I I E S , DONALD WHITING, and NELSON DAVES, Defendants and Respondents. APPEAL FROM: District Court of the Ninth Judicial District, In and for the County of Toole, The Honorable John M. PlcCZ-mvel, Judge presiding. COUNSEL OF RECORD: For Appellants: James C. Bartlett argued; Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana For Respondents: P. Jbhn 'jg: Paul argued; Alexander & Baucus, Great Falls, Montana Submitted: November 3, 19 83 Decided: November 23, 1983 Filed: !\dov 2 3 I9983 Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from an order granting summary judgment in a libel and slander action filed in the District Court of the Ninth Judicial District, State of Montana, in and for the County of Toole. The appellant opens the introduction of his brief with the statement "the facts of this case are a mess." With that statement we are in total accord. Late in this year of 1983, this Court is called upon to consider disputed facts that began in March, 1968. In addition, in a summary judgment decision, we are faced with a situation where the District Court that granted the summary judgment, did not have available to it the depositions of the four defendants, a fact unknown to either counsel until the record on appeal was prepared. In view of the complicated issues raised by this appeal, and the length of the hibernation period that this case lay at rest unattended by the caretakers of our judicial system, we find it necessary to remand the cause to the trial court with the four depositions for reconsideration. The four issues raised for our consideration are: (1) whether the defendants are liable under state law for libel and slander; (2) whether the defendants can properly claim a privilege or qualified privilege on religious grounds; (3) whether the defense of truth, based on religious grounds is applicable; (4) whether the District Court erred in granting summary judgment f o r d e f e n d a n t s , i n t h a t t h e r e r e m a i n m a t e r i a l q u e s t i o n s o f f a c t t h a t ought t o be l i t i g a t e d and t r i e d on t h e m e r i t s ; and whether t h e D i s t r i c t Judge e r r e d i n g r a n t i n g summary judgment when it d i d n o t have a v a i l a b l e t o it t h e f o u r d e p o s i t i o n s f o r review. A s p r e v i o u s l y noted it is t h i s f i n a l i s s u e we f i n d c o n t r o l l i n g , n e c e s s i t a t i n g a r e t u r n t o t h e t r i a l c o u r t . While t h e D i s t r i c t Court d i s p u t e d on s e v e r a l f a c t s i n t h e c a s e , it found t h e y were n o t r e l e v a n t because of a l e t t e r from t h e Watchtower B i b l e and T r a c t S o c i e t y of New York I n c . , d a t e d August 3, 1982, which c o n t r o l l e d t h e l i t i g a t i o n . Had t h e c o u r t had b e f o r e it t h e d e p o s i t i o n s , it is p o s s i b l e t h a t it could have a s c e r t a i n e d t h a t t h e r e was s u f f i c i e n t evidence t o go t o a j u r y . Rule 5 6 ( c ) M.R.Civ.P., p r o v i d e s t h a t summary judgment is p r o p e r i f : " * * * t h e p l e a d i n g s , d e p o s i t i o n s , answers t o i n t e r r o g a t o r i e s , and a d m i s s i o n s on f i l e show t h a t t h e r e is no genuine i s s u e a s t o any m a t e r i a l f a c t and t h a t t h e moving p a r t y is e n t i t l e d t o a judgment a s a m a t t e r of law." I n Harlan v. Anderson ( 1 9 7 6 ) , 169 Mont. 4 4 7 , 450, 548 P.2d 613, 615, t h i s Court commented on t h e above r u l e : " T h i s C o u r t h a s o n many o c c a s i o n s commented upon t h e n a t u r e of t h e burden of proof imposed on t h e moving p a r t y u n d e r R u l e 56. The C o u r t h a s c o n s i s t e n t l y h e l d t h a t t h e p a r t y moving f o r summary judgment h a s t h e burden of showing t h e c o m p l e t e a b s e n c e o f a n y genuine i s s u e a s t o a l l f a c t s which a r e deemed m a t e r i a l i n l i g h t o f t h o s e s u b s t a n t i v e p r i n c i p l e s which e n t i t l e d him t o a judgment a s a m a t t e r of law. W e have a l s o h e l d t h e r u l e o p e r a t e s t o h o l d t h e movant t o a ' s t r i c t s t a n d a r d ' and t h a t : "' * * * To s a t i s f y h i s burden t h e movant must make a showing t h a t is q u i t e c l e a r what t h e t r u t h is, and t h a t e x c l u d e s any r e a l d o u b t a s t o t h e e x i s t e n c e of any genuine i s s u e of m a t e r i a l f a c t . * * * ' Kober & K y r i s s v. S t e w a r t & B i l l i n g s Deaconess H o s p i t a l , 148 Mont. 117, 122, 417 P.2d 476, 478." Where a s h e r e , t h e c o u r t d i d n o t have t h e d e p o s i t i o n s b e f o r e it, and q u i t e p o s s i b l y d i d n o t have a l l t h e f a c t s b e f o r e it, summary judgment was i m p r o p e r l y g r a n t e d . Summary j u d g m e n t is s e t a s i d e a n d t h e c a u s e i s r e t u r n e d t o t h e D i s t r i c t C o u r t f o r f u r t h e r c o n s i d e r a t i o n . W e concur: s-,-Qos*4 Chief J u s t i c e ~ r d ~ u s t i c e John C. Sheehy, s p e c i a l l y c o n c u r r i n g : It h a s been a l o n g t i m e coming b u t t h e C o u r t h a s now a t least p a r t i a l l y r e v e r s e d Mustang Beverage Co., I n c . v . J o s e p h S c h l i t z Brewing Company ( 1 9 7 3 ) , 162 Mont. 2 4 3 , 511 P.2d 1. n

November 23, 1983

4d92a1d2-2d9c-4f30-9955-3daf513e76c2

BRIGHAM YOUNG UNIVERSITY v SEMAN

N/A

83-145

Montana

Montana Supreme Court

No. 83-145 IN THE SUPREIIE COURT O F THE STATE OF NONTANA 19 83 BRIGHAM YOUNG UNIVERSITY, a corp. , P l a i n t i f f and Appellant, SHIRLEY M. SEbfAN, JAMES R. K O O N T Z , and ALLEN H. BLOOTlGREN, Defendants and Respondents. APPEAL FROJJ: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Cascade, The Honorable John 1 1 . McCarvel , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Cure C , Borer; lilaxon Davis, Great F a l l s , Montana For Respondents : Smith, B a i l l i e 6 Walsh; James R . TYalsh, Great F a l l s , Vent ana Submitted on B r i e f s : J u l y 2 1 , 1983 Decided: November 3, 1983 F i l e d : NOV 3 - 1983 Mr. Justice John C. Sheehv delivered the Opinion of the Court. This is an appeal by Brigham Young University from a judgment in its favor against the defendants in the sum of $1,897.20 entered in the District Court, Cascade County. The respondents Shirley M. Seman, James R. Koontz, and Allen H. Bloomgren (SKB) have cross-appealed from the same judgment. This controversy arises out of a written lease agreement between Brigham Young University as lessor and SKB as lessees or tenants of office space described as suite no. 306 of the Strain Building, Grea.t Falls, Montana. The lease provides for a term from January 1, 1979 to January 1, 1984. The first principle issue arises from a lease provision which provided that SKB would not assign the lease nor sublease the same without the consent of BYU, "which consent shall not be unreasonably withheld." The second principle issue is the amount of damages to be awarded, depending upon our decision as to the effect of the consent provision. We affirm the judgment of the District Court but find that revision of the damages awarded is necessary and remand for that purpose. SKB occupied the leased office space from January I, 1979 until late 1980 when SKB relocated their firm's offices to another building in Great Falls, the executive plaza. Thereafter, SKB endeavored to find a new tenant to take over the Strain Building lease for the balance of the lease term. In June 1981, SKB proposed to BYU's building manager, Lester R. Rodger, that suite 306 be sublet to the Montana Board of Parole and Probation, a state agency. Rodger testified that at about the same time as he was approached by SKB for consent to the sublease, he was also stopped by a number of existing tenants in the Strain Building who indicated opposition to the possible tenancy of the parole board. Rodger consulted counsel, and thereafter circulated a questionnaire to the existing tenants. A number of the tenants indicated on their returns to the questionnaire that they opposed the sublease to the state agency. One tenant in particular, Dr. James Crouch, threatened to file a lawsuit if consent were granted and the parole board became a tenant of the Strain Building. Following the return of the questionnaires, BYU advised SKB that the consent of BYU to the proposed sublease was denied. In response, SKB advised BYU that it considered the lease terminated as a result of the refusal and that thereby SKB was relieved of any further obligation to pay rent, effective July 2, 1981. SKB returned the keys to suite no. 306. The proposed sublease would have commenced on August 1, 1981 for a period of two years to August 1, 1983. The sublessee would have commited itself to Pay $850 per month for the first year to SKB. The second year payments would have included an increase equal to six to ten percent of the first year's recital. These rental payments were less than those agreed to under the primary lease between BYU and SKB. Under the sublease, the parole board would occupy only eight of the ten rooms contained in suite no. 306. After the refusal of SKB to pay rent after July 2, 1981, BYU attempted to rent suite no. 306 in an effort to mitigate damages. Eventual-ly, the tenants who occupied a smaller suite, no. 304 in the building, Waddell and Reed moved from suite no. 304 to suite no. 306. That move took place on June 1, 1982. Thereafter BYU filed suit against SKB seeking $11,624.39 for unpaid rent from July 3, 1981 to June 1, 1982 and an additional $5,900.00 representing the difference between the rent received from Waddell and Reed on suite no. 306 and the losses incurred because of the vacancy in suite 304, after Waddell and Reed moved. BYU claimed in the District Court, and now claims that the withholding of consent to the sublease was not unreasonable because (1) the parole board was not paying enough to SKB to cover SKB's obligations under the primary lease; (2) two rooms of the suite would not be occupied by the parole board under the sublease; (3) tenants had come to the BYU building manager to express concern about the rumor that the parole board would be moving into the building; (4) negative responses were received in writing from a number of the tenants who were polled in the questionnaire and who opposed the occupancy of the office space; (5) one tenant threatened to file a lawsuit if the sublease were consented to; (6) BYU could have lost Waddell and Reed as tenants, who were renting on a 30 day, month-to-month basis; and (7) there was a possibili-ty that other tenants would not renew their leases at the end of their terms if the sublease was consented to by BYU. The District Court found that the Montana Board of Parole and Pardons had rented offices in the Central Plaza Building in Great Falls for several years and that no complaints had been made by other tenants in the building of misconduct on the part of persons who visited their offices; it had also occupied leased offices in the Great Falls Savings and Loan Building, with no complaints by other tenants of misconduct by persons visiting their offices; and /there were several a-ttorneys who practiced 1a.w and represented criminal defendants who occupied space in the Strain Building at the time of the proposed sublease, three of the whom were fulltime public defenders. The court found as a fact that although BYU permitted its tenants to make the decision as to whether to allow SKR to sublease, the questionnaire used was biased in that it was not d-esigned to evoke a favorable response. Thus no competent evidence was presented to show that the parole board was an undesirable tenant. The District Court therefore found that BYU's withholding of consent to the sublease was unreasonable. As a preface to the issues here, BYU contends on appeal that this Court owes no deference to the finding of the District Court that BYU's withholding of consent was unreasonable. It contends that the determination of reasonableness is a question of law or at best a mixed question of facts and law and that the resolution of such is not binding upon the reviewing court, relying on Schuldes v. Wubbolding (1971), 15 Ariz.App. 527, 489 P.2d 1229; Sharp v. Hoerner Waldorf Corporation (1978), 178 Mont. 419, 584 P.2d 1298; and Sanborn v. Lewis and Clark County (1942), 113 Mont. 1, 120 P.2d 567. Under Rule 52(a), M.R..Civ.P., this Court may not set aside the findings of fact of a trial court in a nonjury trial unless the findings are clearly erroneous. We have stated in numerous cases that we will review the evidence in the light most favorable to the prevailing party to sustain the District Court findings, that substantial credible evidence will support such findings, and that conflicts which may exist in the evidence presented at the trial are to be resolved by the trial judge as a part of the trial judge's duty and function. Particularly we have stated that the trial court's function in nonjury cases is to find ultimate facts from conflicting evidence and its findings are sufficient if sustained by competent, substantial, although conflicting evidence. Holloway v. University of Montana (1978), 178 Mont. 198, 582 P.2d 1265. Here we have a lease which provides that the consent of the lessor to a proposed assignment or sublease shall not be unreasonably withheld. Whether the withholding of the consent was reasonable is a determination that must be made as an ultimate fact. It is true that a statement of ultimate fact, such as the finding that RYU was unreasonable in withholding consent, might also be read as a conclusion of law. We held in Holloway that the statement does not thereby lose its character as a finding of ultimate fact because of such dual nature. 178 Mont. at 203, 582 P.2d at 1268. In this case, the finding of the District Court that BYU1s withholding of consent was unreasonable is an ultimate fact supported by evidence of record, and is not clearly erroneous. The decision of the District Court on this point must therefore be sustained by us. A lessor has an undoubted right to control what lawful use his property may be put to, and what persons may lawfully possess the same. When a lessor agrees in the lease that he will not unreasonably withhold his consent to an assignment or sublease of the premises he thereby makes a new promise which impinges on his full right of control and which must be given some legal effect. At the least it appears to us that in a commercial lease such as this, such a provision in the lease means that the lessor, in determining whether to withhold consent, will be governed by principles of fair dealing and commercial reasonableness. From that viewpoint also, we sustain the finding of the District Court that as a matter of law BYU unreasonably withheld its consent here. A factor in this determination is that RYU itself had attempted earlier to lease the same premises to the same state agency before leasing to SKB. We adopt a s astandard of reasonableness under a clause such as this conduct of a reasonably prudent person in the landlord's position exercising reasonable commercial responsibility. See Chanslor-Western Oil and Development Company v. Metropolitan Sanitary District (1970) , 131 Ill.App.2d 527, 266 N.E.2d 405; American Book Company v. Yeshiva University Development Foundation, Inc. (1969), 59 Misc.2d 31, 297 N.Y.S.2d 156. Arbitrary considerations of personal taste, sensibility or convenience are not proper criteria for the landlord's consent, nor is personal satisfaction the sole determining factor. The financial responsibility of the proposed sublessee, the character of his business, its suitability for the building, the legality of the proposed use, and the nature of the occupancy are among the proper criteria. We turn now to determine the damages, if any, allowable to the parties in this case. The core of that determination is the position taken by SKB when it notified BYU that because of the breach of the consent clause, any further of SKB's obligations under the lease agreementwere terminated. Naturally we look first to the lease agreement to see what it provides. The lease gives the lessor the right to terminate the lease after fifteen days written notice. It also requires corrective action for any breach of covenant by SKB which could be corrected. No reciprocal right is provided to SKB as lessee for any breach of covenant that may be committed by BYU under the lease. SKB cannot point, therefore, to a lease provision which would give it the right to terminate its obligations to pay accruing rentals after the breach of the consent clause by BYU. Can SKB terminate its rentalpayment obligation because of this breach absent a lease provision permitting the same? Although there is some caselaw to the contrary, we think properly not. When BYU breached the consent clause, SKR had several options: (1) it could sue for specific performance; ( 2 ) assign or sublet the premises to the parole board and leave the legality of the sublease to a court determination; (3) sue for a declaratory judgment; or ( 4 ) offset the landlord's claim for rent. The District Court here, in determining the damages, pursued the fourth course and we agree. We determine in this case that the refusal by BYU to consent to the sublease was not an interference by the landlord with the leasehold estate of the lessee which would justify a cancellation of the lease by the lessee. No power to terminate the lease by the lessee is provided by the lease agreement, and even where the lessor unreasonably withholds consent contrary to a specific provision of the written lease, the consent clause has been construed to be an independent clause, not mutually dependent on other clauses in the lease. A substantial breach of the independent covenant not to withhold consent unrea.sonably to a sublease does not excuse the lessee from further performance of his duties under the lease. Rock County Savings and Trust Company v. Yost's, Inc. (1967), 36 Wis.2d 360, 153 N.W.2d 594. In effect the District Court here, by using the measure of damages it applied, gave effect to section 27-1-311, MCA, which provides for the measure of damages for breach of contract. The District Court determined that S K B was entitled to those amounts which would compensate it for all the detriment which was proximately caused by the breach of the consent agreement by BYU or which in the ordinary course of things would be likely to result therefrom. Accordingly, in this case, BYU is entitled to recover from S K B the rentals which would have accrued from and after the refusal to pay by S K B on July 2, 1981, reduced by those rentals which S K B would have received from the parole board during the term of the parole board.'s lease if BYU had consented. Further the rentals paid by Waddell and Reed during the remainder of the primary lease term would likewise reduce the rental obligation of S K B to BYU. However, BYU contends in this case that in addition to its accrued rentals for the remaining term of the written lease, it should also recover its damages for rentals it would have received from Waddell and Reed in suite no. 304, amounting to $5,900, incurred because of the vacancies suite no. 304 caused by the Waddell and Reed move. The District Court ruled out such recovery and we agree. The answer again is found in section 27-1-311, MCA, providing for damages for a breach of contract. Thus damages must be proximately caused under the statute whereas the damages claimed by BYU for the vacancy in the Waddell and Reed suite are remote. Moreover, they are not clearly ascertainable both in their nature and origin as a . result of any breach of contract by the lessee and therefore cannot be recovered by BYU. We have not overlooked SKB's contention that in the Restatement (2d) of Property S 15.2, page 106 (comment h), it is stated that a breach of a landlord by withholding its consent to a proposed transfer leased premises unreasonably gives a right to the other party to terminate the lease. There may in a proper ca.se arise such a right, but as we have indicated above, it would be in a situation where a breach of the clause constituted an unjustifiable interference with the leasehold estate in the premises possessed by the lessee. It is likewise contended by BYU in this case that our holding in Lemley v. Bozeman Community Hotel Company (Mont. 1982), 651 P.2d 979, 39 St.Rep. 1877, controls this case on whether the landlord breached the consent clause. The difference between L e y and this case is that in Lemley, the District Court found that the landlord's refusal to permit subletting was reasonable. We stated in our opinion that substantial evidence supported that finding. 651 P.2d at 982, 39 St.Rep. at 1882. It is important for counsel in appellate cases to recognize the effect of Rul-e 52(a), M.R.Civ.P. In Lemley, the District Court held that the landlord's refusal to consent was reasonable. Under Rule 52(a), we may not set that finding of fact aside unless it is clearly erroneous. In the case at bar, the District Court found that the refusal to consent was unreasonable. Again, Rule 52(a) controls our examination, and if substantial evidence supports the District Court's finding so that it is not clearly erroneous, the District Court's findings of fact control our appellate review. The final contention of BYU is that the District Court improperly calculated the damages in any event. BYU contends that the court did not give effect to the escalator clause contained in the lease, and that it should have been awarded rentals for the period of time that suite no. 306 was occupied by Waddell and Reed. S K B agrees that the court did overl-ook the effect of the escalator clause, but denies that any rental should be considered as accruing during the period that Waddell and Reed occupied the lease premises. The parties agree, therefore, that some revision of the damages must be made, but disagree as to the effect of the occupancy of the lease premises by Waddell and Reed. What we have said foregoing, with respect to damages controls this last dispute. BYU is entitled to the rentals accruing under the lease for the full term after the attempted termination by S K B . Whatever rentals were paid by Waddell and Reed to BYU for the period of its occupation during the primary lease term between BYU and S K B are to be treated as a mitigation of damages allowable to BYU. The judgment of the District Court is affirmed, but the cause is remanded to the District Court for a redetermination of the damages allowable, in accordance with this opinion. Costs to S K B . We Concur: 3 4 4 J&d. Chief Justice

November 2, 1983

42b3a8dd-59b5-4564-953d-97efc1d79f23

OBERG v CITY OF BILLINGS

N/A

82-284

Montana

Montana Supreme Court

NO. 82-284 IN THE SUPREME COURT OF THE STATE OF PlONTAPJA 1 9 8 3 BRUCE P. OBERG, Plaintiff and Appellant, CITY OF BILLINGS, a niunicipal corp., HOWARD C. PORTER, NOEL RIGBY and NATHANIAL W. MORRIS, et al., Defendants and Respondents. APPEAL FROM: The District Court of the Thirteenth Judicial (District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding. COUNSEL OF RECORD: For Appellant: Jones, Jones & Work; Blair Jones argued, Billings, Montana For Respondents: Peterson, Schofield & Leckie; Dane Schofield argued, Billings, Montana Filed: Submitted: January 13, 1983 Decided : December 22, 1983 - -. Clerk Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Bruce P. Oberg, a Billings police officer appeals from a summary judgment of the Yellowstone County District Court upholding a determination of the Billings Police Commission that Officer Oherg was guilty of insubordination for refusing a direct order to take a polygraph examination. The trial court enforced the Police Commission's recommendation that Officer Oberg be suspended without pay for 15 days, followed by a six-month probationary period. Officer Oberg challenges the constitutionality of that part of a statute which provides that only employees of public law enforcement agencies can be compe1I.ed to take polygraph examinations. Officer Oherq has challenged the statute on five constitutional grounds. He claims that the exception for public law enforcement agencies violates his constitutionally guaranteed right to equal protection of the 1-aws, right to privacy, freedom from unlawful search and seizure, freedom from compelled self-incrimination and due process. We reverse the trial court's summary judgment and declare that section 3 9 - 2 - 3 0 4 ( 2 ) , MCA, is an unconstitutional viol-ation of public law enforcement agency employees ' right to equal protection of the laws. Although we believe the statute also offends the equal protection clause under the Fourteenth Amendment to the United States Constitution, we limit our holding to the conclusion that the statute offends the equal protection clause under Art. 11, 5 4, of our own constitution. We therefore l i m i t our discussion to the equal protection issue and do not reach the remaining issues. We summarize the agreed statement of facts submitted to the trial court. Bruce P. Oberg, a Billings police officer arrested a citizen who later filed a complaint with the police department claiming that Officer Oberg struck him after he was a.rrested and handcuffed. As a part of the police department's internal investigation of the citizen's complaint, the police chief wrote to Oberg on July 24, 1979, and formal-ly ordered Oberg to submit to a polygraph examina- tion. On Ju1.y 37, 1979, Oberg responded by letter informing the police chief that he refused to submit to the polygraph exahmination. Officer Oberg asserted that mandatory compliance with the police chief's order violated various constitutional rights guaranteed by both the United States and Montana Constitutions. The Chief of Police then filed charges against Officer Oherg and brought the matter before the Billings Police Commission. The Chief of Police charged among other things that Officer Oberg's failure to comply with the order to submit to a polyqraph examination constituted insubordination. The Billings Police Commission held a hearing and later on October 15, 1979, found Officer Oberg guilty of insubordination and ordered that Officer Oberg be disciplined by removal from duty for fifteen working days with forfeiture of a-ll wages for that period of time together with the imposition of a six month probationary period. On October 19, 1979, the acting city administrator issued an order enforcing the decision of the police comrnis- sion . On December 11, 1979, Oberg filed a petition in Yellowstone County District Court for judicial review. After t.he pleadings were filed both Cherg and the City moved for summary judgment on the ground that no issues of material- fact were presented to the trial court for resolution. The trial court granted the City's motion for summary judgment and held that the polygraph provision as applied to police officers was constitutional. The statute invol.ved, section 39-2-304 ( I . ) , MCA, provides: "Lie detector tests prohibited--exception . (1) No person, firm, corporation, or other business entity or representative thereof shall require as a condi- tion for employment or continuation of employment any person to take a polygraph test or any form of a mechanical lie detector test. A person who ~riolates this section is guilty of a misdemeanor. "(2) This section shall not apply to public law enforcement agencies." F J e hold that subsection (2) denies employees of public law enforcement agencies equal protect.ion of the law in violation of state constitutional provisions. The Montana Constitution, Art. 11, 5 4, states: "Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exer- cise of his civil or political rights on account of race, color, sex, culture, social oriqin or condi- tion, or political or religious ideas." In upholding the exception that permits employers to give polygraph tests to public law enforcement agencies, the trial court applied a strict scrutiny analysis. The trial court assumed that because a right of privacy violation was alleged, a strict scrutiny analysis was required. However, we have held that a mere all.egation that a fundamental right is burdened is insufficient to trigger a strict scrutiny analysis. Godfrey v. Movt. State Fish & Game Com'n. (1981), Mont . - - , 631 P.2d 1265, 38 St.Rep. 661. Here, the plaintiff has challenged a general legislative classification but has failed to lay the groundwork for a claim that the classification either burdened a fundamental right or involved a suspect criteria. Examples of fundamental riahts include privacy, freedom of speech, freedom of religion, right to vote and right to interstate travel. Examples of suspect criteria are wealth, race, nationality and alienage. Plaintiff has not gone beyond the mere allegation that the required polygraph test violated his riqht to privacy. The accusations against plaintiff unquestionably involved his work as a police officer, and as such he could not reasonably claim that the police department could not investigate his actions based upon a citizen's complaint. He could be questioned and otherwise required to cooperate with an interdepartmental investigation based on the citizen's complaint. Because we feel plaintiff has failed to show that any fundamental right. was substantially abridged by the statute, we determine that it was unnecessary to apply the strict scrutiny analysis to the challenqed part of the statute. However, even under the less vigorous test requiring that a classification must bear a rational relationship to a legitimate governmental purpose, section 39-2-304(2), MCA, still must fail a challenge under the equal protection clause of our state constitution. This Court cannot determine whether this classification hears a rational relationship to a legitimate governmental. purpose because there is no expressed purpose for the classification on the face of the statute or in the statute's legislative history. For that reason, the challenged part of the statute is overbroad and vague on its face, and an unconstitutional violation of the plaintiff's right to equal protection of the law. Subsection (1) of the statute is a directive to all employers in this state--private and pub1i.c--telling them that they cannot subject a prospective employee or an employee to polygraph examination, either as a condition of gaining employment or as a condition of retaining employment. The intent is crystal clear. Subsection ( 2 ) , however, is different. That subsection creates a class of people who for some undeclared reilson are not to receive the protection against compelled polygraphs provided in subsection (1). While the courts are seldom concerned with the wisdom of legislation, the purpose of the legislation is of vital concern where the constitutionality of a statute is challenged as a denial of equal protection. Did the legislature intend, for example, that not only police officers, but other law enforcement employees such as secretaries, clerks, dispatchers, meter maids and dogcatchers he subject to the requirements of a polygraph examination? All these people are as much employees of law enforcement agencies as are pol-jce officers. No rational basis is discernible from the statute that would justify excluding employees of "publj-c law enforcement agencies" from the protection given to all other private and public employees in this state. The exclusion gives no limit of the classification's sccpe, and the legislative history is so scant that it provides no substantive background regarding the purpose or scope of the classification. The City would have us read the exclusion as zpplying only to police officers, but we cannot read the exclusion so narrowly. Rather, it must he read to include all empl-oyees of public law enforcement agencies. To hold that all these employees were not entitled to the benefit of the statute would make them second cl-ass citizens. The loose wording and absence of enforcement guidelines from which a purpose for the classification might be discerned, make this statute unconstitutional on its face. The City argues that the statute must at least permit the administering of polygraph examinations to police officers. Police officers may be placed in a special. class for purposes of administering polygraph examinations, the City argues, because they occupy a particularly high position of public trust, and it is the goal of the City to maintain law enforcement aqencies of the highest integrity. But this argument is no less true for all governmental departments and agencies. Still, under the statute, no government employee or prospective government employee can be compelled to take a pol-ygraph examination unless he was applying for a job with or had a job with a "public law enforcement agency." We are not tempted to create second class citizenship for police officers by redefining and tail-orinq the term "public law enforcement agencies" to apply only to police officers. It would not be fair for this Court to save the statutory exception by dreaming up a rational relationship to some governmental purpose by filling the v 0 j . d left by the legislature and declaring that the necessity of maintaining high standards in our pol-ice officers is justification for the statutory exception. The first part of the statute is a clear declaration of public policy that forbids employer use of polygraph examinations as a tool for conditioning employment or continued empl oyment . If this blanket statutory protection to all employees is to be withdrawn from a class of employees, it is the legislature, not this Court, that must define that class and set forth the policy behind denying the protection expressly granted to all other employees in this state. In arguing the maintenance of public trust in police officers as a justification for giving them polygraph examinations, the City has had to speculate that this was the purpose behind the amendment to the statute. We also would be required to speculate on the purpose behind the amendment. The statute, before it was amended to include subsection ( 2 ) , was clearly intended to benefit all private and public employees and to act as a bar to employer use of polygraph for employees or prospective employees. Under these circumstances we are neither equipped nor inclined to define the purpose behind the "publ-ic law enforcement agencies" exception. In a dissent to Schulte Co. v. Gangi (1946) , 328 I J . S . 108, 121-122, 66 S.Ct. 869, 90 L,.Ed. 1045, Justice Frankfurter wrote that "the 'policy1 of a statute should be drawn out of its terms as nourished by their proper environment, and not, like nitrogen, out of the air." We believe this to be especially so where the legislature has enacted legislation for the benefit of all private and public employees of this state, but then creates a special class that is not entitled to the protection of the statute. It is not our role to breathe life into a statute that is unconstitutional on its face. We will not grab out of the air what we consider to be an acceptable judicial rationalization of legislative action. The legislature must declare the policy and purpose behind its laws. Here, it has failed to do so. We cannot doubt that police officers occupy a position of public trust in our society, but this fact does not breathe life into an ambiguous statute whose enforcement is sought exclusively against police officers. By the clear wording of the statute, secretaries, clerks, di~patchers, meter maids and dogcatchers are as much employees of public law enforcement agencies as are police officers, but they do not occupy the same position of power and concomitant trust that must reside in our police forces. To hold that all "public law enforcement agencies" can be compelled, under the statute, to take a polyqraph examination, would be to stamp them all as second class citizens. And an interpretation restricting the classification to police officers would stamp an even smaller cl-ass as second class citizens. Other states have adopted similar legislation regulating the use of lie detectors in the employment context. Some of these states have also provided exceptions to the ban on the use of lie detectors and some have even singled out law enforcement agencies. Regardless of the purpose behind such a classi.fication by other states, when our legislature has failed to declare its purpose for a statutorily created classification, we will not look to other jurisdictions. We cannot rely on the purpose behind similar legislation in other states to save an ambiguous statute in our own state when our legislature has failed to declare its purpose behind the statute. Interestingly, California has specificall-v provided that no "public safety officer" can be compelled to take a polygraph test a . n d the officer's refusal cannot in any way affect his employment status. See, Cal. Gov't. Code $ 3307 (West 1971). Had the legislature provided any evidence that the statute was only to apply to police officers because of their positions of high public t.rust and integrity, we would have no trouble upholding the statute under the rational relationship test. However, such a statute could still he attacked under the strict scrutiny test. It would be up to the challenging officer to provide evidence that a fundamental riqht, such as invasion of privacy, would be violated. It would then be up to the state or local government to show a compelling public interest to justify the invasion. Art. 11, S 4 of our state constitution provides for the protection of every citizen's "individual dignity." It cannot be doubted that subjecting one to a lie detector test is an affront to one's dignity and unless strictly structured can be an invasion of privacy. The legislators were concerned with the types of questions that can be used by polygraph examiners to establish a response pattern and this concern was expressed in committee hearings preceding the passage of this statute. (See House Committee on Labor and Employment Committee Minutes, January 25, 1974.) We cannot assume that in sdministering a polygraph examination a.31 questions would be confined to employment-related matters. Assuming furthermore, that a statutory exception were enacted to specifical-ly exclude policy officers from the general statutory protection granted all other employees in this state, we doubt that such an exception would survive a sustained attack under the strict scrutiny test. Although we declare section 39-2-304(2), MCA, to be unconstitutional because it denies to plaintiff equal protection of the Law, we emphasize nonetheless that employees of law enforcement agencies can be questioned or otherwise required to cooperate in interdepartmental investigations. The accusations against plaintiff involved his work as a police officer, and as such he could not reasonably claim that the police department could not investigate his actions based on a citizen's complaint. However, the police department's order that plaintiff take a polygraph examination viol-ated plaintiff's right to equal protection of the law. The order of the District Cou We Concur: Chief Justice Justices Mr. Justice Frank R. Morrison, Jr. specially concurring: I concur in the result but disagree with "rational basis" as the premise for this result. The Montana State Constitution, Article 11, Section 10, provides : "The right of indj-vidual privacy is essential to the wel-1-being of a free society and shall not be infringed without the showing of a compelling state interest." Subsection 2 of section 39-2-304 subjects employees of public law enforcement agencies to an invasion of their right to privacy by allowing employers to require them to submit to polygraph examinations. It is difficult to conceive of a greater privacy invasion and although it could he argued there is a compelling state interest to require police officers to su.bmit to polygraph examinations there is no compelling state interest requiring all employees of public law enforcement agencies to so submit. This case involves the implication of a fundamental right, that is the right of privacy, and therefore strict scrutiny attaches. White v. State (Mont. 1983), 661 P.2d 1272, 40 St.Rep. 507. I agree with the majority opinion that there is no justifiable basis for this class legislation. However, it is important to note that our State Constitution, in this case, extends greater protection than does the Federal Constitution. There is a specific privacy provision in our State Constitution which implicates a fundamental right and requires a strict scrutiny analysis. This may or may not be true under the Federal Constitution. We accorded a broader equal protection in White v. State, supra, on the basis of constitutional language present in the Montana State Constitution but not present in the Federal Constitution. The same rationale applies here and provides a solid basis for turning this case on the State Constitution rather than the Federal Constitution. Subsection 2 of section 39-2-304, MCA , is unconstitutional and must he stricken from the statute. Subsection 1 of the same statute provides that no employee shall be subjected to a polygraph examination and this language protects Bruce P. Oberg, the appellant. Mr. Chief Justice Frank I. Haswell, dissenting: I would hold section 39-2-304 ( 2 ) , MCA, constitutional on its face and as applied to the facts of this case. At the outset, Officer Oherg lacks standing to attack the statute on the ground that it requires other employees of I-aw enforcement agencies (such as secretaries, clerks, dis- patchers, meter maids and dog catchers) to submit to poly- graph examinations. The normal rule is that constitutional rights are personal and a person cannot defeat a statute on the ground that it might in other applications violate the rights of third persons. United States v. Raines (1960), 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; Broderick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830; Wurtz v . Risley et al. (9th Cir. 1983), - F.2d - (Cause 82-3352, decided November 8, 1983). Secondly, the legislature is not required to express the policy and purpose behind its laws in order to withstand an equal protection attack based on an alleged discriminatory classification. Examples abound in Montana case law uphold- ing legislative classifi.cations absent an expressed purpose and policy for the classification: Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St.Rep. 912 (upholding constitution- ality of Montana Medical Legal Panel Act); Matter of Montana Pac. Oil & Gas Co. (Mont. 1980), 614 P.2d 1045, 37 St.Rep. 1238 (upholding constitutionality of legislative classifica- tion applicable to all mineral producers holding unclaimed interests in minerals); State v. Gafford (1977), 172 Mont. 380, 563 P.2d 1129 (upholding constitutionality of classifi- cation of prior convicted felons for special treatment); Rurritt v. City of Butte (1973), 161 Mont. 530, 508 P.2d 563 (establishing different classifications between resident freeholders and nonresident freeholders or resident nonfreeholders with respect to an annexation statute). Finally, I would hold that a rational relationship to a legitimate state interest exists in this case for classifying and treating "employees of law enforcement agencies" differ- ently from other public employees. This Court has recognized that "[tlhe similar provi- sions of the equal protection clauses of the United States and Montana Constitutions provide generally equivalent but independent protection in their respective jurisdictions." Emery v. State (1978), 177 Mont. 73, 580 P.2d 445, cert. denied, 439 U.S. 874, 99 S.Ct. 210, 58 L.Ed.2d 187. No basis can be found in the proceedings of the Montana Constitutional Convention to indicate an intention to treat our equal pro- tection guarantee any differently than its counterpart in the United States Constitution. One who attacks a statute as violating equal protection has the burden of proving that the classification is arbitrary. State v. Jack (1975), 167 Mont. 456, 539 P.2d 726. Officer Oberg has failed to do so. A rational basis exists for the exclusion of public l.aw enforcement agencies from the prohibition on the use of lie detector tests. That rational basis is the use of the lie detector in internal investigations for the maintenance of a police department that "is of the highest integrity and beyond suspicion." Eshelman v. Rlubaum (1975), 114 Ariz. 376, 560 P.2d 1283, 1285. See also, McCain v. Sheridan (1958), 160 Cal.App.2d 174, 324 P.2d 923; Fichera v. State Personnel Board (1963), 217 Cal.App.2d 613, 32 Cal.Rptr. 159; Coursey v. Board of Fire and Police Commissioners (1967) , 90 Ill.App.2d 31, 234 N.E.2d 339; Roux v. New Orleans Police Department (La.App. 1969) , 223 So. 2d 905; Seattle Police Officers' Guild v. City of Seattle (1972), 80 Wash.2d 307, 494 P.2d 485; Richardson v. City of Pasadena (Tex.Civ.App. 1973), 500 S.W.2d 175; Dolan v. Kelly (1973), 348 N.Y.S.2d 478; Raker v. City of Lawrence (Mass. 1979), 409 N.E.2d 710; State Department of Highway Safety, Etc. v. Zimmer (Fla. 1981), 398 So.2d 463. About ten states, including Montana, have passed simi- lar legislation regulating the use of polygraph tests in employment situat.j.ons. See, Alaska Stat. S 23.10.030; Cal. Labor Code S 432.2 (West 1971); Cal. Gov't Code S 3307 (West 1971); Conn. Gen. Stat. $ 31-51 (1983); 19 el. Laws 704 (1979); Hawaii Rev. Stat. $ 378-21 (1976); Idaho Code S$ 44-903, 904 (1977); Md. Ann. Code Art. 100, S 95 (1978); Mass. Gen. La.ws Ann. Ch. 149, (5 19B (West 1982); Or. Rev. Stat. S§ 659.225, 659.227; R. I. Gen. Laws S 28-6.1-1 (1979); Wis. Stat. 111.37 (1974). Of those nine other states, five states (Ala.ska, California, Connecticut, Idaho and Maryland) have enacted. specific exclusions for a cl.a.ss of employees. The exclusions range from police departments and law enforce- ment agencies to federal agencies. In each instance, the state legislature recognized a rational basis for such classification. The compelling interest which necessitates the classi- fication was succinctly described by the Supreme Court of "A police department is a highl-y-sensi- tive agency entrusted and charged with the duty of protecting the community it serves from the evils of crime and cor- ruption. To efficiently and effectively acccmplish its mission it requires the respect and regard of the public, and when it has reason to believe that some of its members may be engaging in disrep- utable practices, it has a valid interest in purging itself of such practices through internal departmental procedures and the right to require the full cooper- ation of its membership to this end." Seattle Police Officers' Guild v. City of Seattle (1972), 80 Wash.2d 307, 494 P.2d 485, 490. Public law enforcement officials occupy a unique position in tha.t they are empowered to do certain acts which can have va.st and far-reaching consequences. They are empow- ered to deprive persons--if even for only a short time--of the most cherished of all rights, the right of freedom. They are empowered to point an accusing finger at persons, and the weight of their authority leaves little room for challenge. They have the power, within certain confines, to take physi- cal liberties with individuals. In short, they have an authority which no one else, public or private, has. When those officials come under fire for alleged irregularities in the performance of their duties, the cloud which results is potentially damaging not only to the official against whom the allega.tion is made, but to the orga.nization as a whole. When a cloud. hangs over such an organization, its efficiency deteriorates and its effectiveness diminishes. As has been recognized: ". . . a member of the police force must be above suspicion of violation of the very laws he has sworn and empowered to enforce . . . [policemen] can perform their duties only if they merit the trust and confidence of the mass of law-abiding citizens. Whatever weakens that trust tendls to destroy our system of law en- f orcemen t. " McCain v. Sheridan (Cal. 1 9 5 8 ) , 324 P.2d 923, 926. In this respect, employees of law enforcement agencies differ substanti.aX1.y from other public employees. The statute provides a reasonable classification that properly included Oberg and in so doing did not offend equal protection guarantees. State v. Turk (Mont. 1982), 643 ~ . 2 d 224, 39 St.Rep. 584. It has not been challenged by anyone outside the intended class. Nor, as applied to Oberg, did its application require Oberg to incriminate himself to discuss matters of individual privacy or to allow unlawful search or seizure of Oberg for the purpose of acquiring incriminating evidence. Oberg was informed that the test would be used for the purpose of an internal investigation of a citizen's complaint. There is no indication that the questions he would have been asked would not have been related specifically and narrowly to the per- formance of his official duties or that the results would have been used against him in a subsequent criminal proceed- ing. Under Garrity v. New Jersey (1967), 385 U.S. 493, 87 S.Ct. 616, 17 LI.Ed.2d 562; Gardner v. Broderick (1968), 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, 20 L.Ed.2d 1082; and, Uniformed Sanitation Men Assn., Inc. v. Sanitation Commissioner of the City of New York (1968), 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1989, such result would not be admissible. To hold otherwise, reduces those who complain of police brutality to the status of second-clzss citizens by withhold- ing normal investigative tools from use against police officers . I would affirm. 4 . %& Chief Justice I concur the foregoing dis sent of the Ch' f Justice. /""

December 22, 1983

2b719123-a30a-4fc1-8b5f-95fbe0a18a93

BOSCARINO v GIBSON

N/A

82-412

Montana

Montana Supreme Court

NO. 82-412 IPJ THE SUPREME COURT OF T I I E STATE OF J I O N T A T J A 1983 SAMUEL J. BOSCARINO and HAZEL BOSCARINO, Plaintiffs and Respondents, -vs- RAY N. GIBSON, ARTHUR E. BAILEY, et al., Defendants and Appellants. APPEAL FROM: District Court of the Third Judicial District, In and for the County of Granite, The Honorable Robert J. Boyd, Judge presiding. COUNSEL FOR RECORD: For Appellants: Tipp, Hoven, Skjelset & Frizzell; Thomas Frizzell argued, Missoula, Montana For Respondents: Mulroney, Delaney & Dalby; Stephen 13. Dalby argued, P?issoula, Montana Submitted: September 19, 1983 Decided: December 7, 1983 - Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Ray Gibson, et al. appeal from a decision of the District Court of the Third Judicial District, Granite County, in favor of the Eoscarinos. Findings, conclusions and judgment were filed on April 1-4, 1952, which declared. Boscarino's mining cl-aim val-id as against Ray Gibson and his co-locators. In addition, Lee Morin was permanently enjoined from performing work upon the mining claim known as the Reynolds City Placer Mining Claim. After the District Court denied the defendants' motion to amend the findings, conclusions and judgment, they filed a notice of appeal on July 6, 1982. We affirm the District Court iudgment. This case involves an area of public land located in the Garnet Mining District, situated in both Granite and Powell County. Federal statutes allow any person to enter and. explore public lands for minerals. 30 U.S.C. S5 22, 26. The act of exploration gives the explorer a right to possession of the exploration area, whereas compliance with the federal and state statutes, including discovery of a valuable mineral deposit, is necessary for a locator to enjoy a right to exclusi~re possession of a claim. Cole v. Ralph (1920), 252 U.S. 286, 40 S.Ct. 321, 64 L.Ed. 567; 30 U.S.C. S 26; Davis v. Nelson (9th cir. 1.964), 329 F.2d 840; Anaconda Co. v. Whittaker (Mont. 1980), 610 P.2d 1177, 37 St-Rep. 902. The law at the time of the attempted location controls in a determination of whether a mineral location was valid. Anaconda Co. v. Whittaker, supra. Therefore, Boscarino's claim must be reviewed according to 1968 law. Section 50-701, R.C.M. 1947, states tha-t: "Any person who discovers upon the public domain of the United States, within the state of Montana, a vein, lode, or ledge of rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, or a placer deposit of gold, or other deposit of minerals having a commercial value which is subject to entry and patent under the mining laws of the United States, may, if qualified by the laws of the United States, locate a mining claim upon such vein, lode, ledge, or deposit in the following manner. . ." The statute goes on to describe how to post and mark the location. A certificate of the locati-on is required and when verified "is prima facie evidence of all facts properly recited therein." Section 50-702, R.C.M. 1947. In 1968, Ray Austin and Dennis OILaughlin filed a certificate of location in Granite County for an unpatented placer mineral location, which they named the Reynol-ds City Placer Mining Cl-aim. The boundaries of the claim formed a rectangle which lay across the Granite County-Powel.1 County border. The four corners of the cla.im were marked by three hl-azed trees and a post which was painted yellow and steadied by a mound of rocks at its base. A notice of location was posted near the point of discovery. There were blazed trees between each of the ma-rked four corners. Austin and OILaughlin were unaware that part of the claim lay in Powell County; thus they originally filed their certificat.e only in Granite County. They were also unaware that the claim constituted approximately 31 acres of land rather than the 20 stated in the certificate. OILaughlin and Austin made their discovery of gold by using a backhoe. In the years from 1-968 until the time they sold the claims to Sam and Hazel Boscarino, OILaughlin and. Austin f j.1-ed affidavits of annual representation on the cl-aims, as required by section 82-2-103, MCA (formerly section 50-704, R.C.M. 1947). Following the sale, Boscarino filed such affidavits. In June 1973, OILaughlin found out that a portion of the claim was located in Powell County and filed a certificate of location in that county, on June 25, 1973, simila-r to the one filed in Granite County. On June 18, 1973, just a week prior, Gibson ha.d filed a certificate of location in Powell County for a placer mining claim called the Reynolds City Off Day Gulch. The Gibson cl.aim overlapped at least a portion of Boscarino's claim in Powell County. When this certifica.te was filed, Gibson knew of Roscarino's claim and that his certificate was not filed in Powell County. Gibson filed additional certificates of location in 1974, 1975 and 1979. In 1980, Lee Morin located two claims (Faith No. 2, a placer and lode claim and Faith No. 14, a lode claim), both of which overlapped Powell Countv land described in Boscarino's certificate of location. Morin was digging holes and test pits in an effort to explore for barite, which samples showed was present. On October 15, 1980, Boscarino filed a complaint in the District Court requesting that Morin be restrained and enjoined from entering upon or working the claims located. on Boscarino's claim. The complaint also asked the District Court to determine the rights of the parties involved (including Gibson, et a.1. ) and to find the Boscarinos owners of the real property on which their claims were filed. Finally, Roscarino asked for $50,000 for slanzer of title. After a trial, the District Court adopted, for the most part, the findings of fact and concl.usions of law submitted by Boscarino. The court concluded that the mining claim f i l e d i n 1968 and 1973 by Austin and O'Laughlin was a " v a l i d l y located, recorded and e x i s t i n g p l a c e r mining claim under t h e laws of t h e S t a t e of Montana-." The D i s t r i c t Court concluded t h a t t h e Gibson claim, on t h e o t h e r hand, was made "other than i n good f a i t h and with n o t i c e t h a t t h e P l a i n t i f f s had v a l i d l y located, marked and recorded . . ." t h e i r claim. The Gibson claim was declared void, a s it v i o l a t e d t h e 80-acre l i m i t a t i o n s e t i.n 30 U.S.C. SS 35, 36 and a s it was "not properly located on t h e ground s o t h a t i t s boundaries could be r e a d i l y t r a c e d and contained no reference t o a n a t u r a l o b j e c t o r permanent monument a s would i d e n t i f y t h e claim," i n v i o l a t i o n of s e c t i o n s 82-2-101 and 1 0 2 , MCA. The subsequent c e r t i f i c a t e s of l o c a t i o n s f i l e d by Gibson w e r e a l s o declared void a s v i o l a t i v e of f e d e r a l and s t a t e law. The c e r t i f i c a t e of l o c a t i o n s f i l e d f o r F a i t h N o . 2 and F a i t h No. 1.4 by Lee Morin were declared void because, i n t e r a l i a , llorin had " a c t u a l and c o n s t r u c t i v e n o t i c e " of Boscarino's claim, a s it e x i s t e d i n both Granite and Powell Counties. Based on t h e foregoing conclusions, t h e D i s t r i c t Court declared t h a t Boscarinc? owned a v a l i d p l a c e r mining claim, located i n both Granite and Powell Counties. The c o u r t a l s o permanently enjoined and r e s t r a i n e d Morin from engaging i n o r performin? any work upon t h e Roscarinos' claim. The a p p e l l a n t s r a i s e two i s s u e s on appeal: (1) D i d Soscarino have a r i g h t t o exclusive possession of h i s unpatented mining claim; and ( 2 ) D i d Morin have a r i g h t t o be protected from f o r c i b l e e v i c t i o n by c o u r t order? The f i r s t i s s u e a r i s e s from Gibson's contention t h a t a t t h e time of Gibson's exploration and l o c a t i o n of t h e Reynolds C i t y Off Day Gulch claim Boscarino had no r i g h t t o exclusive possession of the land. Boscarino allegedly had not made a discovery of gold sufficient to perfect his title to the claim and therefore had only constructive possession provided by the certificate of location filed in Granite County. It is well-established that for a location of a mining claim on public property to be valid there must have been a discovery of a valuable mineral. Cole v. Ra.lph (1920), 252 U.S. 286, 40 S.Ct. 321, 64 L.Ed. 567; Belk v. Meagher (1881), 104 U.S. 279, S.Ct. , 26 L.Ed. 735; Davis v. Nelson (9th cir. 1964), 329 F.2d 840; 30 U.S.C.A. S 23; Anaconda Co. v. Whittaker (Mont. 1.980), 610 P.2d 1177, 37 St.Rep. 902; Ferris v. McNally (1912), 45 Mont. 20, 121 P. 889; Upton v. Larkin (1885), 5 Mont. 600, 6 P. 66. "Until discovery is made, no right of possession to any definite portion of the public mineral lands can even be initiated. Until that is done, the prospector's rights are confined to the ground in his actual possession, and until that possession is disturbed no right of action accrues, and even then no injunction would issue to restrain a mere trespass--certainly not in the absence of some showing of irreparable injury or the insolvency of the trespasser. " Gemrnel v . Swain (1903) , 28 Mont. 331, 335, 72 P. 662. Between rival claimants the test of what constitutes a sufficient discovery has become that of a "prudent man." The prudent man rule was discussed in Chrisman v. Miller (1905) , U.S. "'Where mineral-s have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met. To hold otherwise would tend to make of little avail, if not entirely nuga-tom, that provision of the law whereby "all valuable mineral deposits in 1-ands belonqing to the United States . . . are . . . declared to he free and open to exploration and purchase."' (Quoting Castle v. Womble (1894), 19 L.D. 455, 457.) "It is true that when the controversy is between two mineral claimants the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural entry, for the reason that where land is sought to be taken out of the category of agricultural lands the evidence of its mineral character should be reasonably clear, while in respect to mineral- lands, in a controversy between claimants, the question is simply which is entitled to priority. That, it is true, is the case before us. But even in such a case, as shown by the authorities we have cited, there must be such a discovery of mineral as gives reasonable evidence of the fact either that there is a vein or lode carrying the precious mineral, or if it be claimed as placer ground that it is valuabl-e for such mining." and Murray v. White (1910), 42 Mont. 423, 433-4, 113 P. 754, "Neither the federal nor state statutes require that, to constitute a placer, the ground shall- vield anv s~ecific auantitv of ~recious metals. . 1 . heither is i< require; that ; h e - d e G o s i t s of mineral shall be sufficiently extensive to pay operating expenses in order to locate and maintain a valid placer claim. "It has long been the settled rule that to constitute a discovery, within the meaning of that term as used in mining law, i . t is sufficient that precious metals be found in the ground in quantity which justifies the locator in spending his time and money in prosecuting development work with the reasonable hope or expectation of findinq mineral in payment q6antities, Harrington v. chambers, 3 Utah, 94, 1 Pac. 362; Book v. ~ u s t i z Mining Co., -- (C. C.) 58 Fed. 106; Nevada Sierra Oil Co. v. Home ---- Oil Co.. (C. C.) 98 Fed. 676, 27 Cvc. 556: Snyder . . K ~ i n e s , 349, 360: ~hre;e v. Copper Bell - - M. Co., 11 Mont. 309, 28 Pac. 315; K ~ h a n e v . Kenkle, 18 Mont. 208, 44 Pac. 979, 33 L. R. A. 851, 56 Am. St. Rep. 577; Noyes Clifford, 37 Mont. 138, 94 Pac. 842." The question of whether Boscarino made a discovery sufficient to make valid his location is for the trier of fact. Ferris v. McNally (1912), 45 Mont. 20, 1 2 1 . P, 889; Lange v. Robinson (9th cir. 1.906), 148 F. 799. The District Court in this case concluded that the claim made by 0'1,auqhlin and Austin (Boscarino's predecessors in interest) was a "validly located, recorded and existing pla.cer mining claim under the 1-aws of the State of Montana.." It is undisputed tha.t this Court's function is limited to determining whether the District Court's findings and conclusions were supported by substantial. evidence. The test remains the sa.me where proposed findings are adopted whol-esale by the District Court, even though this Court has disapproved of such adoption. Sawyer-Adecor International v. Anglin (Mont. 1982), 646 P.2d 1194, 39 St.Rep. 1118. Viewing the evidence in a light most favorable to Roscarino, there is amp1.e support for the District Court's finding of a valid location. It is undisputed that a discovery of gold was made by Austin and O'Laughlin. As to his discovery, OIT,a.ughlin testified as follows: "Q. What. ki.nd of work did you do? A. I went up there with my hackhoe and dug trenches and. prospected it. "Q. Did you at any time actively work the claim for profit? A. Well, not very much. "Q. By that you mean a little bit? A. Yeah, I never could find too much. "Q. On one occasion d.id you find something that was worth pursuing? A. Well, I figured. it was. "Q. Did you leave tha.t area open? A. Well., yes, and I hauled up sluice boxes and put them in there. "Q. And then you worked it with a sluice box? A. Yes." The annual representation reports filed by O'Laughlin, Austin, and Boscarino list roadbuilding, road improvements, diqging, and testing as work done over the years on the land. It is also relevant that OIL,aughlin is an experienced miner and that the claim is located in an area where mining had historically occurred and was currently occurring. Once a valid location is made, the holder has an exclusive right of possession which is "subject to sale an.d other forms of disposal . . . " Cole v. Ralph (1920), 252 U.S. 286, 295. Thus, a valid location by Austin and OILaughlin gave them an interest transferable and enforceable by Boscarino. Resolution of the first issue in favor of Boscarino dictates the outcome of the second issue. Morin contends that because Boscarino was not in actual possession of the land, the doctrine of pedis possessio, which gives a right to possession of the area of actual exploration., provided Morin protection against ouster. Norin seeks to have the injunction granted by the District Court declared improper. Morin is precluded from asserting a p i s possessio right of possession given Boscarino's valid location. As the claims made by Morin were on the la.nd included in the area to which Boscarino had exclusive possession, Morin was precluded from entering on the ] . a n d to make an adverse claim. The District Court was correct in granting the injunction. The District Court judgment is affirmed. c c . Justice We Concur: Chief Justice Hon. Thomas A. Olson, District Judge, sitting for Mr. Justice Frank B. Morrison, Jr.

December 7, 1983

ad4b7233-eebe-4a30-9383-912d16dc9049

EWALT v SCOTT

N/A

82-270

Montana

Montana Supreme Court

NO. 82-276 I N TIlE SUPkEME COURT G F TEE STATE O F F ! i O N r Y A M A 1983 ROBERT EWALT, SERRY M. HEKSLEY, b O R O T W Y EFJALT , and EVZRETT E W A L T , P l a i n t i f f s and Respondents, -vs- CHARLES SCOTT, Defendant and Appeilant. Appeal from: District Court o f t h e S i x t e e n t h J u d i c i a l G i s t r i c t , i n and f o r t h e County of C a r t e r , The Honorable Aifred B. Coate, Judge p r e s i d i n g . Counsel of Record: For Appellant: Lucas & Monaghan; Thomas Monaghan, Xiles C i t y , Montana For Respondents: Gene ~ u n t l e y , Baker, Montana .-- -- - Submitted on B r i e f s : March 17, 1983 Decided: November 1 6 , 1983 F i l e d : - Clerk Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Charles Scott appeals from an order of the Carter County District Court that refused to set aside his default in a wrongful death action filed against him. He also appeals from the trial court's order refusing to let him have a jury trial on the issue of damages. On the question of damages, he alleges that the damages awarded to plaintiffs are excessive and that the trial court erred in admitting evidence in support of his childrens' (all adults) claim for mental anguish. We hold that the trial court abused its discretion in refusing to set aside the default, and therefore vacate the judgment and remand for further proceedings. We need not address the issue of whether defendant has a right to jury trial on damages after his default had been entered. The issue of mental anguish is controlled by our decision in Dawson v. Hill & Hill Truck Lines (Mont. Decided October 21, 19831, - P.2d - , 40 St.Rep. 1689. In Dawson, we held that ". . . damages for the sorrow, mental distress or grief of the parents of a deceased minor are recoverable in a wrongful death action brought pursuant to section 27-1-512, P I C A . " The right to recover damages for this element of damages must also be recognized for the children who bring an action for the wrongful death of a parent, whether the children be unemancipated or adults. We confine the remainder of this opinion to the default judgment issue. On March 19, 1976, the defendant Charles Scott (who was employed as a truck driver by England) struck and killed 80 year old Charles Ewalt on a street in Alzada, Montana. Shortly after Ewalt's death, an inquest was held and Scott testified as to what happened. Other than himself, there were no eyewitnesses. The coroner's jury found no culpable negligence on the part of Scott and no criminal charges were filed. Scott returned to Utah shortly after the inquest. Shortly after Scott returned to Utah, Scott left England's employ, whose business offices are located at Salt Lake City, Utah. Scott did not have a forwarding address for his former employer. More than a year after the accident, on April 11, 1977, the plaintiffs (all adult children of the deceased) filed a wrongful death action against England and Scott seeking damages for the death of their father. On May 3, 1977, England was personally served in Salt Lake City and his office manager accepted service on behalf of Scott. On May 24, 1977, a law firm representing both England and Scott filed a motion to dismiss with the Carter County District Court. Nothing happened until a year later, June 15, 1978, when plaintiffs noticed the deposition of Scott for July 13, 1978, to be taken at Ekalaka, Montana. Scott could not be located and the deposition was postponed. Almost two years passed when the plaintiffs moved the trial court to enter a default judgment against Scott for his failure to appear for the deposition scheduled two years earlier. The trial court heard this motion on June 6, 1980, and on June 16, 1-980, the court entered an order giving counsel for England and Scott 60 days from the date of the order to report on any progress in locating Scott. Scott could not be located, however, and the plaintiffs renewed their motion for a default judgment against Scott. Pursuant to plaintiffs' request, the trial court awarded a $105,000 judgment to plaintiffs against defendant Scott on1.y. The plaintiffs then dismissed the action against England., without prejudice. After this entry of default on September 15, 1980, counsel for Scott moved to file an answer and a demand for jury trial as to damages. The trial record does not reflect whether the trial court actually ruled on these motions. Nine more months had passed when Scott was finally located i . n March 1981. Through counsel, Scott filed a motion to set aside the default. The uncontradicted deposition testimony of Scott indicates that he had no idea a lawsuit had been filed against him until he was finally located near his home in another state. The court, however, refused to set aside its order of default and proceeded to a hearing of evidence on the question of damages. The hearing on damages took place on April 13, 1982, and on May 20, 1982, the court entered its findings, conclusions and order and awarded plaintiffs $100,000 in general damages--confined solely to the grief and sorrow of the adult children, and $1,760 in special damages (representing the funeral bill). The trial court entered Scott's default because he failed. to appear at a deposition scheduled in 1978 / even though he had never been personally served and had never been notified of the deposition or even that a civil wrongful death action had been filed against him. His deposition, uncontradicted by any other evidence, clearly demonstrated a lack of knowledge on his part that he had. been sued. In addition, there is every indication in the record. that Scott's former employer, England, and counsel here, made reasonable efforts to locate Scott to tell him about the pending lawsuit, to no avail. The trial court entered the default against Scott and refused to set it aside apparently because it believed England had accepted service on behalf of Scott and had thereby caused his disappearance and the inability to locate him. Not a scintilla of evidence suggests, however, that England had caused Scott's disappearance or the inability of the parties to locate him. In fact, the trial court expressly found that plaintiffs had not proved willfulness or bad faith, but somehow it reasoned that England was at fault and that Scott should therefore be punished. In Owen v. F. A. Buttrey Co. (Mont. 19811, 627 P.2d 1233, 38 St.Rep. 714, we stated that sanctions such as dismissal or defaults are tools that may be used against parties who deliberately flout the discovery process or disobey the orders of trial courts. However, we also stated that such extreme sanctions are not permitted unless there is a showing of willfulness. Here, the trial court not only expressly found that willfulness did not exist, the record contains no evidence to support a finding of willfulness. Scott can hardly be faulted when he had no idea he had been sued; and the record demonstrates that England made a reasonable effort to find Scott. Scott was finally located through the efforts of private investigators representing England. The order refusing to set aside the default judgment is vacated and this cause is remanded to the District Court for further proceedings consistent with the opinion. We Concur:

November 16, 1983

74d8824d-d79d-4100-a927-a43017fd3bd1

STATE v VAN HAELE

N/A

82-481

Montana

Montana Supreme Court

No. 32-481 IN THE SUP3EME COURT OF THE STATE OF PIONTASA 1983 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- THOMAS VAN HAELE, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert H. Wilson, Judge presiding. COUNSEL OF RECORD: For Appellant: Wade J. Dahood argued, Anaconda, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Asst. Attorney General, Helena Harold F. Hanser, County Attorney, Billings, Montana - - - . - - - - - . - Submitted: September 12, 1983 ~ecided: December 12, 1983 The Hon. Chan Ettien delivered the Opinion of the Court. The defendant, Thomas Van Haele, appeals from his conviction of aggravated assault, a felony, in the District Court of the Thirteenth Judicial District, Yellowstone County. We affirm the conviction. The incident leading to Van Haele's arrest and ultimate conviction occurred on the premises of Shur-gard Mini Storage, a rental warehouse business in Billings, Montana. At closing time on July 31, 1981, Van Haele, using the alias "Bill Hayes," appeared at the gate leading into the storage buildings and asked if he could have access to his cubicle for approximately five minutes. Robert Westfall, who managed the business with his wife, Mae, agreed to let Van Haele in, and in return, Van Haele gave him five dollars. The Westfalls had earlier allowed another tenant and friend of theirs, Tim Bender, onto the premises and had given him permission to lock up when he left. Now that Van Haele was also on the premises, Mae Westfall went to find Bender and tell him not to lock the other tenant in. She found Bender and asked him if he had seen the other tenant. Bender replied "yes," and told her where Van Haele's cubicle was located. Then, wanting to tell Van Haele to hurry, she went to find his cubicle. Mae Westfall testified that as she approached Van Haele's cubicle she noticed the padlock had been removed from the door but the door itself was shut. She knocked on the door and said, "hey you." There was no response, so she knocked on the door again and hollered, "hey you in there." Again there was no response and she opened the door. She then saw Van Haele "sitting on the floor with a gun in my face." She got behind the door and Van Haele came out of the cubicle. At this time, Bender, who had followed Mae Westfall to Van Haele's cubicle, asked to look at the gun to see if it was loaded. Van Haele replied, "you're damned right it's loaded" and Bender attempted to grab the gun. When he could not easily disarm Van Haele, Bender left and returned to his own cubicle. Mae Westfall had already fled the area. Van Haele stopped by the office as he was leaving and attempted to speak to Mae Westfall but was told by Robert Westfall that she refused to see him. On August 11, 1981, the county attorney's office filed charges against Van Haele for aggravated assault. He appeared before the court the same dav and pled not guilty. Trial began on November 10, 1981, and the iury convicted Van Haele. He was sentenced to serve ten years in the Montana State Prison with five years suspended. Van Hael-e presents the following issues on appeal: 1. Whether the evidence presented at trial is sufficient as a matter of law to warrant and sustain the verdict of guilty of aggravated assault. 2. Whether the District Court erred in refusing defendant's instruction explaining the defense of reasonable doubt and failure of the prosecution to establish the requisite proof. 3. Whether the sentence of ten years should be set aside and a new hearing on sentence be conducted since the trial court considered the conviction and fifteen year sentence of Thomas Van Haele for the crime of possession of dangerous drugs with intent to sell which arose out of the instant case and which was reversed by this Court on August 23, 1982 (See State v. Van Eaele (Plont. 1980), 649 P.2d 1311, 39 St.Rep. 1586). With regard to the first issue, Van Haele contends that the evidence fails as a matter of 1 . a w to support the jury verdict of guilty on the charge of aggravated assault. More specifically, he contends that: 1) the evidence fails to show that Mae Westfall was placed in reasonable apprehension of serious bodily injury as a result of his actions; and 2) the evidence fails to show that he acted purposely or knowingly in causing that result. Van Haele contends that Mae Westfall was not fearful or apprehensive when she opened the door and saw him with a gun because she immediately said, "what the hell are you doing with that gun?" In addition, he points out that she did not scream or cry for help. As for his own actions, Van Haele contends that he was in his cubicle when the door was suddenly opened, surprising him. He contends that he did not knowingly or purposely point the gun at any person, but because of the height of the cubicle, only four feet, he was forced to be in a stooped position, and in exiting from a kneeling position, it may have appeared that he pointed the gun at Mae Westfall. The State contends that the jury duly consid.ered the conflicting evidence presented to them in relation to whether Mae Westfall was placed in reasonable apprehension and whether Van Haele acted purposely or knowingly, and that they weighed this evidence before reaching their verdict. Therefore, they contend that this Court should be reluctant to substitute its judgment for that of the jury. It has been recognized by this Court as a fundamental rule of law that questions of fact must be determined solely by the jury, and that given a certain legal minimum of evidence, this Court, on review, will not substitute its judgment for that of the jury. State v. Pendergrass (1978), 179 Mont. 106, 118, 586 P.2d 691, 697-8; State v. Merseal (1975), 167 Mont. 412, 415, 538 P.2d 1366, 1367-8, and cases cited therein. The standard of legal sufficiency is whether the verdict is supported by substa.ntia1 evidence. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In reviewing the evidence to determine whether substantial evidence exists, this Court will view the evidence in the light most favorable to the State. Pendergrass, 179 Mont. at 118; Merseal, 167 Mont. at 415-6. At trial, the State produced testimony that Mae Westfall opened the door to Van Haele's cubicle and found a loaded .38 pistol pointed at her face from a dista.nce of one foot away. Mae Westfall testified that she was scared and that she felt terrible as she was looking at the gun, so terrible, in fact, that she couldn't even move. Van Haele, on the other hand, never offered Mae Westfall an innocent explana.tion for his conduct when he had the chance to do so. When Mae Westfall asked him what he was doing with a gun, his only reply was, "who in the hell are you?" In addition, when Van Haele stopped at the office on his way out, Robert Westfall testified that Van Haele's attitude was not contrite, but rather was "belligerent." Although Van Haele testified that he did not intentionally point the gun a . t Westfall, and that he had no intention to frighten her, the jury was free to consider all evidence presented and to pick and choose which of the witnesses it wished to believe. State v. Swazio (1977), 173 Mont. 440, 445, 568 P.2d 124, 127, citing State v. Fitzpatrick (1973), 163 Mont. 220, 226, 516 P.2d 605, 609. The jury may also use circumstantial evidence to determine the existence of a particular mental state. That is, thev may infer the mental state from what the defendant does and says and from all the facts and circumstances involved. State v. Pierce (Mont. 19821, 647 P.2d 847, 850-51, 39 St-Rep. 1205, 1209. Based on the foregoing principl-es, we find that the record contains substantial evidence to support the jury's finding that Van Haele purposely or knowingly caused Mae Westfall reasonable apprehension of serious bodily injury. In conju-nction with this issue, Van Haele contends that even if this Court should find substantial evidence to support the jury's verdict, the conviction is still improper as a matter of law. Van Haele argues that under section 45-3-104, MCA, he had a right to use force to defend his property. However, a scrutiny of the record reveals that the issue of justification was never raised at the trial level. It is a well settled rule that on appeal, this Court will consider for review only those questions raised in the trial court. State v. Campbell (Mont. 1981), 622 P.2d 200, 38 St.Rep. 19; State v. Armstrong (1977), 172 Mont. 552, 562 P.2d 1129. As the issue was not raised in the trial court, we will not consider it further on appeal. As his next issue, Van Haele contends that his proposed instruction no. 7 explaining reasonable doubt and the prosecution's burden of proof should have been given to the jury. Van Haele contends that the instruction was necessary in order for the jury to understand his defense based on the failure of the prosecution to establish the requisite proof. The State contends that the instruction was properly refused by the trial court in that: 1) the last sentence of the instruction told the jury "unless you find beyond a reasonable doubt that the defendant is - not guilty of the offense charged, your verdict should he 'not guilty;'" which is an incorrect statement of law, and; 2) the substance of the refused instruction was covered by other instructions given by the court, so that the defendant I s ability to argue his theory to the jury was not impaired. (Emphasis added.) This Court has consistently held that the District Court need not give repetitious instructions nor instruct on every nuance of a theory of defense. State v. Graves (Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9, 16, and cases cited therein. The court gave nine instructions discussing burden of proof and presumption of innocence, including instructions that the State was required to prove every element of the charge; that the prosecution bore the burden of proof; that the defendant is presumed innocent; and that in case of reasonable doubt the defendant is entitled to an acquittal. The important elements of the refused instruction were contained in the other instructions given by the District Court, therefore it was not error for the District Court to refuse Van Haelels proposed instruction no. 7 or a corrected version of the instruction. Finally, Van Haele contends that the District Court erred in considering a drug charge on which he had been convicted, but was later reversed by this Court in State v. Van Haele (Mont. 1982), 649 P.2d 1311, 39 St-.Rep. 1586. Van Haele cites State v. Olsen (Mont. 1980), 614 P.2d 1061-, 37 St.Rep. 1313, where this Court held that a defendant is entitled to have his sentence pred-icated on substantially correct information, and where improper matters are considered by the sentencing court, a defendant has a right to be resentenced. However, this Court has also recognized that if it is obvious from the record that the judge did not rely on the infirm conviction and the sentence would not have been different had the judge disregarded the prior conviction, this Court will find no prejudice to the defendant. Fitzpatrick v. State (Mont. 1981), 638 ~ . 2 d 1002, At sentencing, the District Court stated: "So far as the charge of which you were found guilty in this Court, you have been sentenced on that drug charge and I think that sentence must stand on its own in that particular case." The court made no further reference to the drug case. The judgment reflects that the court based its sentence on the facts set forth in the presentence report, the defendant's past history, and his chemical dependency, not the drug conviction. Therefore, we find no prejudice to Van Haele and his sentence is upheld. The judgment and. sentence are affirmed. District. Jud.ge, Sitting for Mr. Justice Frank B. Morrison., Jr. W e Concur: %A&$&&+) Chief Jus'tkce J u s t i c e s M r . J u s t i c e John C. Sheehy d i s s e n t s and w i l l f i l e a w r i t t e n d i s s e n t l a t e r . IN THE SUPREME COURT OF THE STATE OF MONTANA 82-481 THE STATE OF MONTANA, Plaintiff/Respondent, VS. THOMAS VAN HAELE, Defendant/Appellant. DISSENT OF MR. JUSTICE JOHN C. SHEEHY Opinion filed: December 12, 1983 Dissent filed: January 11, 1984 CLERK OF SUPREME COURT SPATE OF MONTANA Justice John C. Sheehv dissenting: On January 26, 1981, Thomas Van Haele, under the nane of Bill Hayes, entered into a written rental agreement with Shurgard Mini Storage, at 5504 King Ave. East, near Billings, Montana. The subject of the rental was a storage unit in one of the buildings of Shurgard. The unit itself was small in dimensions, 5 feet by 5 feet in floor area and about 4 feet in height. Such cubicles are used for the storage of personal property. The rights of Shurgard (landlord) and Van Haele (tenant) are defined by the written rental agreement. It is aareed in the instrument that Shurgard is not engaged in storing goods or operating a warehouse, but is "simply a landlord renting a storage unit in which tenants can store items of personal property owned by tenants." It is further provided that "1andl.ord will not maintain supervision or control over the storage unit rented herein, but said unit is under the exclusive control of tenant and tenant must take whatever steps are necessary to safeguard whatever property is stored in the unit." It is the duty of the tenant to buy a lock if he wishes to maintain a locked unit. The landlord has a right to inspect the unit but even that is fenced around: "Tenant will allow landlord free access at all reasonable times to the unit for the purpose of inspection, making repairs, additions or alterations to the unit that may be required under the landlord ' s obligations contained" in the instrument. The written agreement contains no provisions that fix or limit the times at which the tenant can come to the storage unit for whatever purposes he may have. I t i s obvicus t h a t Shurgard and Van Haele entered i n t o a c o n t r a c t of h i r i n g . This i s a c o n t r a c t by which one gives t o another t h e temporary possession and use of property, o t h e r than money, f o r reward, and t h e t e n a n t agrees t o r e t u r n t h e same t o t h e landlord a t a f u t u r e time. Section 70-1-601, MCA. I n such c o n t r a c t s , a s a matter of s t a t u t e , t h e landlord hinds himself " t o secure t o t h e h i r e r t h e q u i t e possession of t h e t h i n g hired." Section 70-1-602, MCA. Mae Frances Westfall, and her husband Robert F. Westfall apparently were hired a s c a r e t a k e r s by Shurgard f o r t h e r e n t a l u n i t premises. A s a r e p r e s e n t a t i v e of t h e landlord, M r s . W e s t f a l l ' s only r i g h t t o e n t e r t h e c u b i c l e rented t o Van Haele was f o r t h e reasons l i s t e d i n t h e agreement, f o r t h e purpose of inspection, o r t o make a l t e r a t i o n s o r r e p a i r s . She had no r i g h t t o e n t e r f o r any o t h e r purpose. She t h e r e f o r e had t h e s t a t u s of an i n t e r l o p e r when she opened t h e door of t h e c u b i c l e , while Van Haele was i n s i d e , t o f i n d him crouching i n s i d e with a gun i n h i s hand. H e had t o crouch; t h e height of t h e c u b i c l e would not permit standing up. T i m Bender was p r e s e n t when t h e Mae Westfall came t o Van Haele's cubicle. Each of them t e s t i f i e d t h a t t h e she knocked on t h e door 2 o r 3 times, t h a t t h e r e was no answer and t h a t she thereupon opened t h e door which w a s unlocked. When she opened t h e door, t h e defendant was i n s i d e hol-ding a handgun and it was pointed a t M r s . Westfall. Bender claimed he waved it a t him a l s o . When Van Haele came o u t of t h e c u b i c l e , Bender grabbed t h e arm t h a t held t h e gun and t r i e d t o w r e s t l e t h e gun away from Van Haele, but he was unable t o do so. So Bender l e t go of Van Haele's arm and went back t o h i s own bin. Van Haele thereupon l e f t t h e building. Upon opening the door, Mae Westfall immediately said to Van Haele, "What in hell are you doing with that gun?" He responded, "Who in hell are you?" The only testimony as to any effect upon Mae Westfall was that she was "scared." She left the premises immediately. It is upon this evidence that the defendant has been convicted of felonious aggravated assault. Under section 45-5-202, the defendant is guilty of aggravated assault only if he purposely or knowingly caused reasonable apprehension of serious bodily injury in Mae Westfall by use of a weapon. Van Haele would be justified in the use of threat of force against her to the extent that he reasonably believed that such was necessary to prevent or terminate her unlawful entry into his occupied structure, section 45-3-103, MCA. Jn my opinion, the evidence fails completely to establish an offense of aggravated assault. Van Haele could only have acted purposely if it was his conscious object to raise reasonable apprehension of serious bodily injury in Mae Westfall by use of the weapon. Section 45-2-101(15), MCA. He could act "knowingly" with respect to aggravated assault if he was aware that his conduct would raise in her a reasonable apprehension of serious bodily injury. The proof is totally lacking in these two aspects. It is further lacking in any testimony that Mae Westfall was in fear of serious bodily injury. She did not so testify. It would be improper to convict Van Haele simply because he was standing or crouching in his cubicle, while holding a gun. He has a constitutional right to keep or bear arms in defense of his own home, person and property, which right may not be called into question, Article 11, section 12, ( 1 9 7 2 ) Mont. Constitution. In my opinion, this incident was ballooned a l l out of proportion and the sentence imposed is harsh in the extreme.

December 12, 1983

1ad82955-3881-497d-ace6-c8f6172d1a7f

STATE v PALMER

N/A

83-313

Montana

Montana Supreme Court

No. 83-313 I N THE SUPREME C O U R T O F T I E STATE O F M O N T A P J A 1983 STATE OF MONTAXA, P l a i n t i f f and Respondent, -vs- GARY L. PALMER, Defendant and Appellant. APPEAL F R O M : D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t , I n and f o r t h e County of Lincoln, The Honorable Robert M. H o l t e r , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Sverdru2 & Spencer, Libby, Montana For Respondent: Eon. Mike Greely, Attorney General, Helena, Montana W i l l i a m L. Douglas, County Attorney, Libby, Montana Submitted on B r i e f s : September 2 2 , 1983 Decided: December 8 , 1983 @EC c- - F i l e d : L , 1983 Mr. J u s t i c e L.C. Gulbrandson d e l i v e r e d t h e Opinion of t h e Court. Defendant Gary Palmer a p p e a l s from h i s c o n v i c t i o n on c h a r g e s o f f e l o n y t h e f t and f e l o n y c r i m i n a l m i s c h i e f f o l l o w i n g a j u r y t r i a l i n t h e D i s t r i c t C o u r t o f t h e N i n e t e e n t h J u d i c i a l D i s t r i c t , Lincoln County. For t h e r e a s o n s s t a t e d below, w e a f f i r m d e f e n d a n t ' s c o n v i c t i o n . On November 1 3 , 1982, two employees of t h e S t . Regis Paper Company observed Palmer and f o u r companions, George Busse, William Glidden, Donald Souder and Bruce Bothum, c u t t i n g trees on l a n d owned by S t . Regis. The employees n o t i f i e d t h e county s h e r i f f ' s o f f i c e , which d i s p a t c h e d a d e p u t y t o t h e scene. En r o u t e , t h e d e p u t y was j o i n e d by two law enforcement o f f i c e r s from t h e Kootenai N a t i o n a l F o r e s t . A s t h e t h r e e men approached t h e s c e n e of t h e t r e e c u t t i n g , one of t h e c u t t e r s , l a t e r i d e n t i f i e d a s Glidden, r a n behind some bushes. Glidden d i d n o t emerge from t h e bushes u n t i l t h e o f f i c e r y e l l e d f o r him t o come o u t . Glidden e x p l a i n e d t h a t he had gone behind t h e bushes o n l y t o r e l i e v e h i m s e l f , b u t t h e o f f i c e r could f i n d no t r a c e s of u r i n a t i o n i n t h e brush. The o f f i c e r s and t h e deputy asked Glidden and t h e o t h e r s f o r evidence of p e r m i s s i o n t o be c u t t i n g t r e e s on t h e s e c t i o n . They were r e f e r r e d t o t h e d e f e n d a n t , Palmer, who produced a s m a l l s l i p of paper i n d i c a t i n g t h a t Palmer had a u t h o r i t y t o c u t t r e e s on s e c t i o n 3 6 , a t r a c t owned by t h e S t a t e of Montana. The s l i p was s i g n e d by Ralph James, who had a Christmas t r e e c u t t i n g p e r m i t from t h e S t a t e f o r s e c t i o n 36. However, one of t h e o f f i c e r s noted t h a t t h e a r e a t h e men were working was s e c t i o n 35, owned by S t . Regis, which l i e s a d j a c e n t t o t h e state-owned s e c t i o n . Palmer, h i s c o l l e a g u e s , and t h e o f f i c e r s l e f t t h e s c e n e and went t o t h e s h e r i f f I s o f f i c e t o d i s c u s s t h e problem f u r t h e r . The n e x t day, November 14, t h e s h e r i f f I s deputy and S t . Regis employees r e t u r n e d t o s e c t i o n 35 t o conduct an i n v e s t i g a t i o n . One of t h e employees determined t h a t t h e most r e c e n t c u t t i n g had been done on S t . Regis l a n d , and found no evidence of r e c e n t c u t t i n g on state-owned s e c t i o n 3 6 . T h i s c o n c l u s i o n was confirmed by a s t a t e f o r e s t e r o b s e r v i n g t h e a r e a a few days l a t e r . Palmer had i n s i s t e d t h a t he and h i s c o l l e a g u e s were c u t t i n g on s e c t i o n 36. Photographs taken a t t h e s c e n e r e v e a l e d t h a t t h e p r o p e r t y l i n e s were c l e a r l y demarcated by p o s t e d n o t i c e s , although Palmer maintained t h a t he had n o t s e e n t h e s e n o t i c e s u n t i l t h e f o r e s t s e r v i c e o f f i c e r s and t h e deputy had d i s c o v e r e d t h e c u t t i n g on November 13. The i n v e s t i g a t i o n r e v e a l e d t h a t Palmer and t h e o t h e r s had been c u t t i n g t h e t r e e s near t h e ground, and "topping" t h e f e l l e d t r e e s s o t h a t t h e t o p s could be used a s Christmas t r e e s . S t . Regis employees and t h e s h e r i f f ' s deputy were a b l e t o match t h e b u t t s of t h e trees t o stumps on s e c t i o n 3 5 . The deputy r e t a i n e d some of t h e t r e e s , b u t t s and stumps a s evidence. S t . Regis r e t a i n e d t h e topped Christmas t r e e s and o t h e r b u t t s . The t r e e s were l a t e r s o l d a t wholesale f o r approximately $1,600. The employees a l s o took e s t i m a t e s of damages t o t h e land. The e s t i m a t e s i n c l u d e d $200 t o remove t h e stumps; $329 f o r replacement of p l a n t s e e d l i n g s , and $1,849 f o r l o s s of t h i r t y y e a r ' s tree growth. Palmer and h i s f o u r a s s o c i a t e s were charged w i t h f e l o n y t h e f t and f e l o n y c r i m i n a l m i s c l ~ i e f f o r i l l e g a l l y removing and damaging t h e t r e e s . The f o u r a s s o c i a t e s n e g o t i a t e d a p l e a b a r g a i n and p l e a d g u i l t y t o misdemeanor t h e f t . Palmer p l e d n o t g u i l t y t o a l l t h e c h a r g e s a g a i n s t him. Although h i s c o l l e a g u e s t e s t i f i e d on h i s b e h a l f a t t r i a l , Palmer was c o n v i c t e d and s e n t e n c e d t o two y e a r s i n t h e Montana S t a t e P r i s o n . Palmer a p p e a l s from h i s c o n v i c t i o n , and r a i s e s t h r e e i s s u e s : (1) Whether t h e D i s t r i c t Court e r r e d i n f a i l i n g t o d i s m i s s t h e c h a r g e s a g a i n s t Palmer because of t h e S t a t e ' s a l l e g e d s u p p r e s s i o n o r d e s t r u c t i o n o f m a t e r i a l a n d e x c u l p a t o r y evidence? ( 2 ) Whether P a l m e r ' s c o n v i c t i o n o f b o t h f e l o n y t h e f t and f e l o n y c r i m i n a l m i s c h i e f v i o l a t e s m u l t i p l e punishment s t a t u t e s ? ( 3 ) Whether t h e D i s t r i c t Court e r r e d i n a l l o w i n g t e s t i m o n y of monetary v a l u e s o t h e r t h a n " c u r r e n t market v a l u e " t o e s t a b l i s h proof of f e l o n y c r i m i n a l m i s c h i e f ? ISSUE ONE: P r i o r t o t r i a l , and immediately f o l l o w i n g p r e s e n t a t i o n of t h e s t a t e ' s c a s e - i n - c h i e f , P a l m e r ' s c o u n s e l moved f o r d i s m i s s a l of t h e c h a r g e s on t h e grounds t h a t t h e s t a t e had s u p p r e s s e d o r d e s t r o y e d m a t e r i a l , e x c u l p a t o r y e v i d e n c e . Palmer maintained t h a t , because t h e S t a t e had d i s p o s e d o f a l l b u t f o u r o r f i v e of t h e t r e e s c u t by Palmer and h i s a s s o c i a t e s , he had no e v i d e n c e which would t e n d t o prove t h a t t h e y had been c u t t i n g t r e e s on State-owned s e c t i o n 36. S u p p r e s s i o n o r d e s t r u c t i o n o f m a t e r i a l , e x c u l p a t o r y e v i d e n c e by t h e S t a t e amounts t o a v i o l a t i o n of a d e f e n d a n t ' s due p r o c e s s r i g h t s and w a r r a n t s d i s m i s s a l of c h a r g e s a g a i n s t him. See Brady v. Maryland ( 1 9 6 3 ) , 373 U . S . 53, 83 S.Ct. 1194, 10 L.Ed.2d 215; S t a t e v. C r a i g ( 1 9 7 6 ) , 169 Mont. 150, 545 P.2d 649. The D i s t r i c t Court d e n i e d a l l motions by d e f e n s e c o u n s e l t o d i s m i s s t h e c h a r g e s . W e f i n d no e r r o r i n t h e c o u r t ' s a c t i o n s . When t h e d e p u t y a n d t h e S t . R e g i s e m p l o y e e s r e t u r n e d t o t h e s c e n e o f c u t t i n g , t h e y i n v e s t i g a t e d both s e c t i o n s i n d i s p u t e . They found no e v i d e n c e of r e c e n t c u t t i n g on State-owned s e c t i o n 36, b u t d i d f i n d s u c h e v i d e n c e on s e c t i o n 3 5 , and g a t h e r e d s u f f i c i e n t e v i d e n c e r e l e v a n t t o t h a t a r e a . Although a n i n v e s t i g a t i o n of s e c t i o n 36 i n F e b r u a r y , 1983, r e v e a l e d t h a t t r e e s had been f e l l e d on t h a t s e c t i o n around November, 1982, t h e method of c u t t i n g was markedly d i f f e r e n t t h a n t h a t used by Palmer and h i s c o l l e a g u e s on s e c t i o n 35. Furthermore, t h e t r e e s i n q u e s t i o n were r e t a i n e d and l a t e r s o l d by S t . R e g i s , and n o t t h e S t a t e , a s Palmer h a s argued s i n c e t r i a l . P a l m e r ' s c o u n s e l f i l e d a motion t o produce a l l t h e t r e e s c u t on t h e a r e a s i n q u e s t i o n n e a r l y f i v e months a f t e r t h e i n c i d e n t a r o s e . I n S t a t e v. Clements ( 1 9 8 1 ) , 52 0r.App. 309, 628 P.2d 433, under f a c t s v e r y s i m i l a r t o t h o s e a t b a r i n t h e immediate c a s e , t h e Court of Appeals of Oregon h e l d t h a t a d e f e n d a n t could n o t a v a i l h i m s e l f of t h e p r o t e c t i o n s a f f o r d e d under Brady, s u p r a , where a motion t o d i s c l o s e e v i d e n c e was f i l e d l o n g a f t e r t h e e v i d e n c e h a d b e e n d e s t r o y e d and where t h e s t a t e had no r e a s o n t o know o f d e f e n d a n t ' s c l a i m s p r i o r t o t h e f i l i n g of t h e motion. Clements involved t h e d e s t r u c t i o n o f meat a l l e g e d l y s t o l e n from a g r o c e r y s t o r e . Although t h e d e f e n d a n t i n t h a t c a s e was aware of a p o s s i b l e e x c u l p a t o r y v a l u e i n t h e meat, i.e., t h a t he a l l e g e d l y had n o t s t o l e n it, b u t w a s r e t u r n i n g it t o t h e s t o r e because it was supposedly t a i n t e d , t h e s t a t e had no r e a s o n t o know t h a t t h e c o n d i t i o n of t h e meat w a s m a t e r i a l t o d e f e n d a n t ' s c a s e u n t i l t h e motion was f i l e d . 52 0r.App. 309, 628 P.2d a t 435-36. I n t h e i n s t a n t c a s e , t h e d e f e n d a n t c o u l d have moved v e r y e a r l y i n t h e p r o c e e d i n g s t o p r e s e r v e any e v i d e n c e having some, i f any, c o n n e c t i o n t o s e c t i o n 36. However, t h e i n i t i a l i n v e s t i g a t i o n of t h e two s e c t i o n s gave n e i t h e r t h e S t a t e nor S t . Regis any i n d i c a t i o n t h a t t h e t r e e s s e i z e d were connected t o s e c t i o n 36, o r t h a t any m a t e r i a l s g a t h e r e d from s e c t i o n 36 would be c r i t i c a l t o e s t a b l i s h i n g P a l m e r ' s innocence. Indeed, we f i n d no i n d i c a t i o n i n t h e r e c o r d t h a t t h e r e was any e x c u l p a t o r y e v i d e n c e a v a i l a b l e t o Palmer. Moreover, t h e a l l e g e d l y e x c u l p a t o r y e v i d e n c e w a s never i n t h e p o s s e s s i o n of t h e S t a t e . The r e c o r d is c l e a r t h a t S t . R e g i s was i n e f f e c t i v e c o n t r o l of t h e remaining t r e e s , s t u m p s and b u t t s f o u n d on s e c t i o n 3 5 . Under t h e s e c i r c u m s t a n c e s , t h e S t a t e d i d n o t have p o s s e s s i o n o r c o n t r o l of t h e s e items f o r Brady purposes. Clements, s u p r a , 52 0r.App. 309, 628 P.2d a t 436 n. 5. ISSUE TWO: Palmer f u r t h e r a l l e g e s t h a t h i s c o n v i c t i o n f o r b o t h f e l o n y t h e f t and f e l o n y c r i m i n a l m i s c h i e f v i o l a t e s t h e p r o v i s i o n s o f t h e m u l t i p l e p u n i s h m e n t s t a t u t e , S e c t i o n 46-11-502, MCA, and t h i s C o u r t ' s c o n s t r u c t i o n o f t h a t s t a t u t e . S e c t i o n 46-11-502 p r o v i d e s t h a t : "When t h e same t r a n s a c t i o n may e s t a b l i s h t h e commission o f more t h a n one o f f e n s e , a p e r s o n charged w i t h s u c h conduct may be p r o s e c u t e d f o r e a c h s u c h o f f e n s e . H e may not, however, be convicted of more than one offense if: (1) one offense is included in the other; (2) one offense consists only of a conspiracy or other form of preparation to commit the other; (3) inconsistent findings of fact are required to establish the commission of the offenses; (4) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or (5) the offense is defined to prohibit a continuing course of conduct and the defendant's course of conduct was interrupted, unless the law provides that the specific periods of such conduct constitute separate offenses." In a recent decision, State v. Wells (Mont. 1983), 658 P.2d 381, 40 St.Rep. 127, we had this to say about multiple punishments: "The double jeopardy prohibition contained in the Fifth Amendment to the United States Constitution has been applied to state proceedings since 1969. Benton v. Maryland (1969), 395 U.S. 784, 796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 717. This prohibition protects a defendant from both multiple prosecutions for offenses arising out of the same transaction and from multiple punishments imposed at a single prosecution for the same offense. See North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656,664-665. Where, as here, defendant was tried at a single prosecution for all of the statutory crimes in question, the issue is one of multiple punishments. State v. Close (1981), Mont . , 623 P.2d 940, 949, 38 St.Rep. 177, 188. "The analysis that this Court has consistently applied in determining whether one offense is included within another offense is the test set forth in Blockburger v . United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. In Blockburger, the Court ruled: 'The applicable rule is that where the same act or transaction constitutes a v i o l a t i o n o f two d i s t i n c t s t a t u t o r y p r o v i s i o n s , t h e t e s t t o be a p p l i e d t o d e t e r m i n e whether t h e r e a r e two o f f e n s e s o r o n l y o n e , is whether e a c h p r o v i s i o n r e q u i r e s proof of a f a c t which t h e o t h e r d o e s n o t . ' 284 U.S. a t 304, 52 S.Ct. a t 182, 76 L.Ed. a t 309. "The B l o c k b u r g e r t e s t is c o d i f i e d i n s e c t i o n 46-11-502, MCA. " T h i s C o u r t h a s a d o p t e d t h e a p p r o a c h whereby t h e a n a l y s i s is a p p l i e d t o t h e s t a t u t e s i n q u e s t i o n r a t h e r t h a n t o t h e f a c t s of t h e i n d i v i d u a l c a s e . S t a t e v. R i t c h s o n ( 1 9 8 1 ) , Mont. , 630 P.2d 234, 237, 38 St.Rep. 1 0 1 5 , 1 0 1 8 . I n d e t e r m i n i n g whether m u l t i p l e punishments s h o u l d be allowed f o r o f f e n s e s a r i s i n g o u t o f t h e same t r a n s a c t i o n , t h e d i s p o s i t i v e q u e s t i o n t h e n becomes whether t h e l e g i s l a t u r e i n t e n d e d t o p r o v i d e f o r m u l t i p l e p u n i s h m e n t s . S t a t e v . C l o s e ( 1 9 8 1 ) , s u p r a , 623 P.2d a t 9 4 9 , 38 St.Rep. a t 188. ' B l o c k b u r g e r ' s a n a l y s i s must s t a n d o r f a l l on t h e working of t h e s t a t u t e s a l o n e , n o t on t h e i n d i c t m e n t . ' C l o s e , 623 P.2d a t 950, 38 St.Rep. a t 189. See a l s o , S t a t e v. Buckman ( 1 9 8 1 ) , Mont. , 630 P.2d 743, 745, 38 S t . R e p . 1 0 0 r 1 0 0 9 ; S t a t e v . Coleman 11979). Mont. , 605 P.2d 1000. 1008-i009,3 St.Rep. i i 3 4 , 1 1 3 8 - 1 1 4 0 ~ ; S t a t e v . P e r r y ( 1 9 7 9 ) , 1 8 0 Mont. 3 6 4 , 368. 590 P.2d 1129. 1131: S t a t e v. Davis & c i o s e ( 1 9 7 8 ) , 176 ~ o n t ' . 196, 199, 577 P.2d 375, 377; S t a t e v. Radi, s u p r a , 176 Mont. a t 462, 578 P.2d a t 1176." Adhering t o t h e s e s t a n d a r d s , w e f i n d no e r r o r i n c o n v i c t i n g Palmer on b o t h f e l o n y t h e f t and f e l o n y c r i m i n a l m i s c h i e f . T h e f t i n t h e c o n t e x t of t h i s c a s e c o n s i s t s of p u r p o s e l y o r knowingly t a k i n g t h e p r o p e r t y of a n o t h e r w i t h t h e p u r p o s e t o d e p r i v e . S e c t i o n 4 5 - 6 - 3 0 1 ( 1 ) ( a ) , MCA. C r i m i n a l m i s c h i e f i n t h e c o n t e x t of t h i s c a s e c o n s i s t s of p u r p o s e l y o r knowingly damaging o r d e s t r o y i n g t h e p r o p e r t y of a n o t h e r w i t h o u t h i s c o n s e n t . S e c t i o n 4 5 - 6 - 1 0 1 ( 1 ) ( a ) , MCA. C l e a r l y , t h e two s t a t u t e s a r e s i m i l a r o n l y i n t h e r e q u i r e m e n t s c o n c e r n i n g m e n t a l s t a t e , a n d p r o o f o f a r e q u i s i t e mental s t a t e is a f e a t u r e of any c r i m i n a l s t a t u t e . P a l m e r , h o w e v e r , i n s i s t s t h a t t h e a c t o f " t a k i n g " o r " d e p r i v i n g " involved i n t h e f t is synonomous w i t h t h e a c t of " d e s t r o y i n g " o r "damaging" involved i n c r i m i n a l m i s c h i e f . Common s e n s e d i c t a t e s t h a t t h e o f f e n s e s of t h e f t and c r i m i n a l m i s c h i e f a r e n e i t h e r c o e x t e n s i v e n o r w h o l l y i n c l u d i b l e w i t h i n each o t h e r . There a r e many s i t u a t i o n s where t h e a c t s of a wrongdoer i n v o l v e both t h e f t and c r i m i n a l m i s c h i e f , and t h e i n s t a n t c a s e is b u t one example. Palmer d e p r i v e d S t . R e g i s o f i t s p r o p e r t y , by t a k i n g p o r t i o n s of t r e e s t o u s e o r s e l l a s Christmas t r e e s . Palmer damaged S t . R e g i s p r o p e r t y , a s t h e r e was e v i d e n c e o f diminished v a l u e t o t h e l a n d because of t h e d e s t r u c t i o n . The c o n v i c t i o n on c h a r g e s of t h e f t and c r i m i n a l m i s c h i e f was l e g a l l y p e r m i s s i b l e . ISSUE THREE: Palmer contends t h a t t h e e v i d e n c e of v a l u e used t o charge and c o n v i c t him of f e l o n y c r i m i n a l m i s c h i e f was i n a d m i s s i b l e . I n t h e absence of any a c c e p t a b l e v a l u e s , Palmer m a i n t a i n s t h a t h i s c o n v i c t i o n on t h a t c h a r g e c a n n o t s t a n d . The g i s t of P a l m e r ' s d e f e n s e is t h a t proof of " v a l u e , " f o r t h e purpose of e s t a b l i s h i n g commission of a f e l o n y , is c o n t r o l l e d by S e c t i o n 4 5 - 2 - 1 0 1 ( 6 9 ) ( a ) , MCA, which s t a t e s t h a t v a l u e "means t h e market v a l u e a t t h e time and p l a c e of t h e crime o r , i f such cannot be s a t i s f a c t o r i l y a s c e r t a i n e d , t h e c o s t of t h e replacement of t h e p r o p e r t y w i t h i n a r e a s o n a b l e t i m e a f t e r t h e crime." The evidence of " v a l u e " produced a t t r i a l t o e s t a b l i s h t h e a c t of f e l o n y c r i m i n a l mischief c o n s i s t e d of c o s t s of stump removal, r e p l a n t i n g , and l o s t f u t u r e t r e e growth. While t h e c o s t s a s s o c i a t e d w i t h t h e s e items a r e n o t w i t h i n t h e scope of "value" a s d e f i n e d i n S e c t i o n 4 5 - 2 - 1 0 1 ( 6 9 ) ( a ) , w e f i n d t h a t t h e y a r e still a d m i s s i b l e t o e s t a b l i s h proof of f e l o n y c r i m i n a l m i s c h i e f . Most c r i m i n a l s t a t u t e s , i n c l u d i n g t h e f t , draw t h e l i n e between a f e l o n y and a misdemeanor based upon t h e "value" o f t h e p r o p e r t y involved. I t is t o t h e s e s t a t u t e s t h a t t h e d e f i n i t i o n c o n t a i n e d i n S e c t i o n 45-2-101(69)(a) a p p l i e s . The d i s t i n c t i o n between f e l o n y and misdemeanor c r i m i n a l m i s c h i e f , h o w e v e r , is n o t m e a s u r e d by t h e " v a l u e " o f p r o p e r t y damaged o r d e s t r o y e d . On t h e c o n t r a r y , t h e d i f f e r e n c e is c o n t r o l l e d by t h e amount of " p e c u n i a r y l o s s " t o t h e owner of t h e p r o p e r t y . See S e c t i o n 45-6-101(3). The term " v a l u e , " a s d e f i n e d by S e c t i o n 4 5 - 2 - 1 0 1 ( 6 9 ) ( a ) , d o e s n o t appear i n t h e c r i m i n a l m i s c h i e f s t a t u t e . Palmer p o i n t s t o c e r t a i n Compiler's Comments t o t h e s t a t u t e which u s e t h e word "value" i n t h e c o n t e x t of c r i m i n a l m i s c h i e f , b u t t h e s e comments, a p p a r a n t l y d r a f t e d by t h e Montana C r i m i n a l Law I n f o r m a t i o n and Research C e n t e r a t t h e U n i v e r s i t y of Montana Law School, a r e n o t p a r t of t h e s t a t u t e and t h u s do n o t have t h e f o r c e of law. Moreover, t h e y a r e c l e a r l y m i s l e a d i n g w i t h r e s p e c t t o c l a s s i f y i n g c a t e g o r i e s of c r i m i n a l m i s c h i e f . S e c t i o n 4 5 - 1 - 1 0 2 ( 2 ) r e q u i r e s p r o v i s i o n s o f t h e c r i m i n a l code " t o be c o n s t r u e d a c c o r d i n g t o t h e f a i r import of t h e i r terms w i t h a view t o e f f e c t [ t h e o b j e c t of t h e code] . . . and t o promote j u s t i c e . " Simply d e f i n e d , " p e c u n i a r y l o s s " means " [ a ] l o s s o f money, o r something by which money o r something o f money v a l u e may be a c q u i r e d . " B l a c k ' s Law D i c t i o n a r y 1018 ( 5 t h ed. 1 9 7 9 ) . Evidence o f damages from loss of future tree growth, as well as the out-of-pocket expense of removing stumps and replanting, is includible within the concept of pecuniary loss. Obviously, the statute was carefully drafted to avoid reference to "value," because property damaged or destroyed by criminal mischief may not, in some instances, have a market value or replacement cost. The trial court properly allowed the State's evidence to show the monetary losses arising from defendant's damage to St. Regis property. This evidence clearly established more than $150 of pecuniary loss---enough to charge and convict Palmer of felony criminal mischief. Even if we accept as true one of Palmer's subarguments, i.e., that there was insufficient evidence to establish any attempt by St. Regis to remove stumps and reseed the harvested portions of section 35, the evidence of money damages from lost future tree growth clearly exceeds the $150 minimum necessary to impose a felony conviction. Accordingly, the conviction of the defendant Palmer is affirmed. We concur: > h a - $1 $%iMdk Chief Justice

December 8, 1983

adacb3c6-be4c-420e-98f9-a16eacd90326

STATE v ERLER

N/A

82-358

Montana

Montana Supreme Court

No. 8 2 - 3 5 8 IN THE SUPREME COURT OF THE STATE OF I d l O N T A V A 1983 STATE OF YONTPNA, P l a i n t i f f and A p p e l l a n t , - v s - ?!ARK EWER, a / k / a PIARK MAP.TIN, Defendant and Respondent. APPEAL FRO]!: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f J e f f e r s o n , The Honorable Mark P. S u l l i v a n , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: Hon. lmike Creely, Attorney General, Helena, Yontana John P . Connor, Jr. argued, County A t t a r n e y , Boulder, FIontanB: Bob Peterson argued, Deputv County A t t y . , Boulder, ?.lantana For Respondent : Harlen 8 Thompson; Shaun R . Thompson argued, Helena, Montana Submitted: O c t o b e r 1 3 , 1983 Decided: P J o v e m b e r 2 9 , 1983 Clerk Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. The State of Montana appeals the July 30, 1982, order of the District Court of the Fifth Judicial District, Jefferson County, suppressing all evidence seized from the defendant's residence in a search conducted on December 30, 1981. The search was held to be illegal because the application for the search warrant was found to have failed to establish probable cause sufficient to justify a search of defendant, Mark Erler's residence. We find that the application for the search warrant did contain sufficient probable cause to support the issuance of the search warrant and reverse the order of the District Court. On December 29, 1981, Jefferson County Undersheriff Tom Dawson was advised by Lewis and Clark County law enforcement officers of a tip they had received indicating that marijuana and cocaine would be entering Lewis and Clark County from the Jefferson County residence of Mark Erler. Further, the drugs were to be transported in a Chevrolet Malibu registered to a Cynthia Olson, with license number 5-50069. Although the informant was not identified, Lewis and Clark County officers did state that they had received reliable information from the same person on three previous occasions. On the basis of the above information and his knowledge that Erler's residence is located approximately two miles up Basin Creek Road from U.S. Highway 91, Undersheriff Dawson positioned a county deputy at the junction of the two roads. At 10:37 p.m. December 29, 1981, the deputy observed the above-described automobile entering Highway 91 from the Basin Creek Road. Lewis and Clark County officers were so notified and the Olson vehicle was stopped approximately one mile inside the Lewis and Clark County line at 11:18 p.m. It had travelled approximately 35 miles in 41 minutes. The registered owner of the vehicle, her husband and Theresa Jo Bennett were in the car, together with approximately one and one-half pounds of marijuana. Undersheriff Dawson then applied to a justice of the peace for a search warrant to search Mark Erler's residence. The application contained the information set forth above. The warrant was issued and a search of the residence was conducted in the early morning hours of December 30, 1981. The search uncovered $2070 in cash, drug paraphernalia, marijuana and other controlled substances. It is that evidence which the State contends was erroneously suppressed by the District Court. To determine whether there was probable cause to issue the instant search warrant, we must look only at the information contained within the four corners of the search warrant application. State v. Isom (1982), 196 Mont. 330, 641 P.2d 417. That information was given to Lewis and Clark County officers by an informant and then relayed to Jefferson County officers, whose subsequent investigation successfully corroborated nearly all of the informant's allegations. Prior to the United States Supreme Court's recent decision of Illinois v. Gates (1983), U.S. - 1 - S.Ct. - 1 - L.Ed.2d , 51 U.S.L.W. 4709 (No. 81-430, June 8, 1983) , an informant's tip (and thus the information in the application) had to meet the rigidly interpreted "two-prong test" set forth in Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, for determining whether probable cause exists for issuing a search warrant before the warrant would be valid. That test is: 1. The magistrate must be informed of some of the circumstances underlying the informant's conclusions or his "basis of knowledge"; and 2. The magistrate must be informed of some of the circumstances underlying the officer's conclusions that the informant was credible or his information reliable. Aguilar, 378 U.S. at p. 114, 84 S.Ct. at p. 1514, 12 L.Ed.2d at p. 729. The Supreme Court in Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, then expanded upon the Aguilar test to hold that a tip could contain sufficient "self-verifying" detail to satisfy the "basis of knowledge" requirement. "In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, 393 U.S. at p. 416, 89 S.Ct. at p. 589, 21 L.Ed.2d at p. 644. The Spinelli case also indicated that a pre-~guilar case, Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, remains the authority for determining the veracity of an informant's tip. Thus, an officer's personal verification, through corroboration of an informant's very specific allegations, is sufficient circumstance to verify a conclusion that the information is credible or reliable. Spinelli, 393 U.S. at pp. 416-417, 89 S.Ct. at p. 589, 21 L.Ed.2d at p. 644. In Illinois v. Gates, supra, however, the Supreme Court abandoned the two-prong test set forth in Aguilar and returned to a more traditional standard for determining whether sufficient probable cause exists to issue a search warrant on the basis of an informant's tip. The Gates test involves a "totality of the circumstances" analysis and incorporates the specifics set forth in Aguilar without requiring that each and every element be proved before probable cause can be found. The absurdly technical aspects of the previous test are thus abandoned. The magistrate must now simply "make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying heresay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, U.S. at p . , S.Ct. at p. - L.Ed.2d at p. , 51 U.S.L.W. at p. 4716. Then, the standard for the reviewing court is a return to the concept set forth in Jones v. United States (1960), 362 U.S. 257 at p. 271, 80 S.Ct. 725 at p . 736, 4 L.Ed.2d 697 at p. 708, that the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause to issue a search warrant existed. The probable cause requirement for the issuance of a search warrant is found in the Fourth Amendment to the United States Constitution: " . . . no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized;" and in Article 11, Section Eleven of the Montana State Constitution: " . . . No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing." We find sufficient probable cause to issue the search warrant in the instant case under either the Aguilar-Spinelli test or the Gates test set forth by the United States Supreme Court. The Aguilar-Spinelli Test Although the justice of the peace was never told the informant's "basis of knowledge", the tip contained sufficiently detailed information to enable the magistrate to reach the determination that the tip was based on "something more substantial than a casual rumor1' or "an accusation based merely on [defendant's] general reputation." The informant knew such details as the model of car which would be leaving defendant's house carrying drugs, its license number and its registered owner. That information is much too specific to be considered part of a "casual rumor". Further, the informant's specific information was substantially corroborated by Jefferson County law enforcement officers, thus verifying both the credibility of the informant and the reliability of his information. The information regarding the make of car, its license number and its registered owner was corroborated, as was the allegation that the car would contain a quantity of marijuana. The only information not corroborated by the officers was that the car would be coming from Mark Erler's residence. However, the car was seen approximately two miles from defendant's residence on the route which would usually be taken to Lewis and Clark County from that residence. Together with the corroboration of the other, very specific, details of the tip, seeing Olson's car on that route was sufficient reason for the justice of the peace to determine that there was a probability that the car had come from Erler's residence and to find probable cause to issue the warrant to search the house. The Gates Test Since we have upheld the search warrant under the Aguilar-Spinelli test, there is no doubt but that the warrant is also valid under the less stringent test of Gates. Given the specific details of the informant's tip and the officers' ability to corroborate those details, there was substantial basis for the justice of the peace to make the determination that "there [was] a fair probability that contraband or evidence of a crime" would be found at the residence of Mark Erler. The order of the District Court is reversed. The search warrant is held to be valid and all evidence acquired as a result of that warrant is admissible against the defendant, Mark Erler. We Concur: Chief Justice M r . Chief J u s t i c e Frank I. Haswell, s p e c i a l l y concurring: I concur i n t h e r e s u l t on t h e ground t h a t probable cause e x i s t e d f o r i s s u i n g a search warrant under I l l i n o i s v. Gates (1983), U.S. ' - S.Ct. - I - L.Ed.2d , 51 U.S.L.W. 4709 (No. 81-430, Decided June 8 , 1983). - - --- Chief J u s t i c e M r . J u s t i c e Daniel J. Shea and M r . J u s t i c e John C. Sheehy d i s s e n t and w i l l f i l e w r i t t e n d i s s e n t s l a t e r .

November 29, 1983

6974e135-2a50-44e8-9797-30184ad7deb9

MARRIAGE OF MCNEFF

N/A

83-008

Montana

Montana Supreme Court

No. 83-08 I N THE SUPFSIIE C O U R T O F THE STATE OF MONTANA 1983 I N I P E T H E M A R R I A G E OF CINDY LUELLA McNEFF, P e t i t i o n e r and Respondent, and T I M O T H Y RAY McNEFF, Respondent and Appellant. Appeal from: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t , I n and f o r t h e Countv of Lincoln Honorable Robert M. Holter, Judge presiding Counsel of Record: For Appellant: Donald L. Shaffer, Libby, Montana For Respondent : Sverdrup & Spencer, Libby, Montana Scott B. Spencer, Libby, Montana Submitted on b r i e f s . September 2 , 1983 Decided. D e c e m b e r 2 2 , 1983 P c l e r k Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is taken from a judgment modifying the support provisions of a 1980 decree dissolving the marriage of the parties. Appellant objects to the District Court raising the amount owed for support of the minor children of which respondent has custody. Cindy Luella McNeff (hereinafter Mother) and Timothy Ray McNeff (hereinafter Father) were married on June 22, 1972, in Laramie, Wyoming. Two children were born of this marriage; Trevor Ray McNeff, now 10 years of age, and Camron Zack McNeff, now 4 years of age. The marriage was dissolved on July 28, 1980. Pursuant to the decree of dissolution, Mother was granted custody of the children and Father was given specific visitation rights. Mother did not have visitation rights during two months in the summer. Father was ordered to pay all debts of the marriage, all medical expenses of the children and $100 per month per child to Mother for their support. The total debt incurred during the course of the marriage was over $32,000. Two years later on July 29, 1982, Mother petitioned the District Court for modification of visitation rights and support payments. After a hearing held before Judge Robert M. Holter, judgment was entered granting the relief requested. The visitation rights of Mother during the summer were provided for. Father's support obligation was raised from $100 per month per child to $175 per month, but Father was relieved from the obligation for the two months he has custody. From that judgment this appeal is taken. The sole issue raised by Father is whether the facts of the case show a change of circumstances so substantial and continuing as to make the amount of support payments set forth in the 1980 decree of dissolution unconscionable and allow the District Court to modify those terms. Father properly sets forth the threshold which must be met. In absence of a written agreement, a modification of the child support terms in a decree of dissolution may only be ordered, "[Ulpon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." Section 40-4-208(2)(b)(i), MCA. As there was no written agreement between the parties, we submit the facts to this statutory test. The facts of the case are relatively uncontested. Father must show that those facts clearly preponderate against the District Court's ruling to gain reversal. Reynolds v. Reynolds (Mont. 1983), 660 P.2d 90, 40 St.Rep. 321. That preponderance of evidence is necessary to overcome the presumption that the judgment of the District Court is correct. Jensen v. Jensen (1979) 182 Mont. 472, 597 P.2d 733. In addition, this Court views all the evidence in a light most favorable to the prevailing party. Nicolai v. Nicolai (Mont. 1981), 631 P.2d 300, 38 St.Rep. 1100. The testimony elicited at the District Court hearing showed that Mother had been employed when the decree of dissolution was entered, but was unemployed when she filed the petiton for modification. At the date of the hearing she was temporarily employed, but her job was to terminate in approximately two months. Mother's new husband was providing most of the support for the children, as well as making support payments of his own. She testified that even with help from her new husband's income, the $100 per month payments for each child is insufficient to properly care for the children. And as she stated during the hearing, "[I] t costs a lot [more] to buy a bag of groceries now than it did two years ago." Father testified that his net pay was between $1100 and $1200 per month. Under the terms of the decree he was liable for all debts of the marriage; that amount originally was over $32,000 and in the two years since the dissolution was granted it had been reduced by over $11,000. Included in this debt were payments for medical bills for the children, a house trailer in which he now resides, and a pickup which Mother was given in the decree. Father testified that the low support payments set forth in the decree were in exchange for his assuming all the debts of the marriage. He further testified that he owes approximately $5,000 more to his parents which should be included in the marital debt. Father has not remarried. This Court has refused to define the term unconscionable as it is used in Section 40-4-208, MCA. Green v . Green (1978), 176 Flont. 532, 579 P.2d 1235. Its interpretation must be made on a case by case basis after scrutinizing the underlying facts. Green, 176 Mont. at 539, 579 P.2d at 1238-1239. However, that interpretation must begin with an objective standard. That standard is found in the basic purpose behind support payments and how that purpose is to be achieved. The purpose of ordering child support payments is to " [MI ake reasonable provision(s) for spouse and minor children during and after litigation . . ." Section 40-4-101(4), MCA. "Child support must reflect a balance among the needs of the parties involved and the ability of the parents to pay." Rome v. Rome (Mont. 1981), 621 P.2d 1090 at 1092, 38 St.Rep. 50 at 52. Thus the determination of what is unconscionable is made by reference to the relative position of the parties, and how close to this balance the present arrangement is. The District Court found on the facts presented that the existing arrangement was unconscionable and we agree. As the presiding judge noted, it is very difficult to support a child on $100 per month. It became considerably more difficult when Mother lost her job. It appears from the transcript that the judge did not feel the proper balance had been struck in the original decree, and when Mother lost her job the balance shifted heavily toward unconscionability. Father contends that Mother simply losing her job is an insufficient change in circumstances to allow modification under the statute. However, again this change must be analyzed in light of the prevailing facts. Here neither party is bathed in riches, and when the already small amount available for the children's support is reduced by even the slightest amount, it has great impact. The District Court was entirely justified in finding that the changed circumstances made the amount of support payments unconscionable, and Father has failed to persuade us otherwise. We find that a preponderance of the evidence supports the District Court's ruling and so hold. Affirmed. W e c o n c u r : PA&- d ( d ~ C h i e f J u s t i c e - J u s t i c e s C/

December 22, 1983

33a7e2f6-d6d0-40c9-b094-5dcaf2168c1b

Hardin v. Hill

423 P.2d 309

11077

Montana

Montana Supreme Court

423 P.2d 309 (1967) Dennis W. HARDIN and Joyce S. Hardin, Plaintiffs and Respondents, v. Glenn D. HILL and Rose Hill, husband and wife, and Arthur D. Hill and Lottie Hill, husband and wife, Defendants and Appellants. No. 11077. Supreme Court of Montana. Submitted November 7, 1966. Decided January 23, 1967. Rehearing denied February 21, 1967. *310 J.A. Turnage (argued), Polson, John D. French, Ronan, Murphy, Robinson &amp; Heckathorn, I. James Heckathorn (argued), Kalispell, for appellants. Korn, Warden &amp; Walterskirchen, Merritt N. Warden (argued), Kalispell, for respondents. CASTLES, Justice. This is an action for rescission of a contract for the sale of a ranch initiated by respondents, hereinafter referred to as Hardin. Rescission was denied, but Hardin obtained a judgment for breach of contract in the amount of $139,450.35, from which the defendants appeal. The defendants, appellants here, are Arthur D. Hill and Lottie Hill, husband and wife, and their son Glenn D. Hill and his wife Rose Hill, and will be referred to as Hills. The Hills were joint owners of a large cattle ranch lying in Flathead and Lake counties. In 1960 the Hills listed the ranch for sale with various realtors, including Peder Pedersen. Dennis W. Hardin and his wife Joyce S. Hardin, respondents, were residents of Colorado and answered an ad for the ranch placed by Pedersen. After some correspondence between the Hardins and Pedersen, the Hardins came to Montana to inspect the ranch. On October 3, 1960, Pedersen escorted the Hardins to the Hill property to inspect it and enter further negotiations. On the following day the Hardins entered a buy and sell agreement; the final contract was signed on October 5, 1960. The purchase price of $300,000.00 included real estate, two houses, various outbuildings, equipment and machines, and some livestock. The ranch contained both deeded land and adjacent leased or permitted land owned by four owners, the land, which the parties considered as a lease. The leases were generally for a period of one year and customarily were renewed to the owner of the deeded property. Throughout the period of negotiation, the Hills represented to the Hardins that the ranch contained approximately 5,000 acres of deeded property and 10,000 acres of leased land. The Hills also stated that approximately 11,000 acres of deeded and leased land were under fence; the area so enclosed being the "heart" of the ranch, containing the best grazing land. The Hardins realized that a survey had never been made of the ranch, and that the statements regarding acreage were rough estimates. The alleged source of the representations made by the Hills was a map prepared by the United States Soil Conservation Service which erroneously included a large portion of land within the ranch which in fact was not owned or leased by the Hills. As this map itself indicated, the boundary lines were "used for conservation planning only." Additionally, the testimony indicates *311 that the map was not relied upon, even if seen prior to the contract. The Hardins entered possession in January of 1961 and continued to raise cattle on the property. In September of 1963 the Hardins discovered a shortage in acreage. A survey revealed a shortage of 279 acres of deeded land and 1,456 of leased. In addition, 2,383 acres were not fenced in as represented. The Hardins attempted to renegotiate the contract and then notified the Hills of their intent to rescind the contract. This action was commenced on December 23, 1963. While rescission was not permitted by the district court, damages for breach of contract were awarded to the Hardins on a rather broad spectrum, as follows: $45,390.00 for the shortage of land within the fence. This amount was deducted from the total purchase price of $300,000.00 for purposes of recomputing the 29 percent down payment used in the contract. The difference between the actual down payment and readjusted down payment was apparently allowed as an element of damages. An additional $24,340.35 was awarded for interest actually paid and interest owing over the life of the contract on the $45,390.00 excess (computed at 4 ½ percent, the contract rate). The total judgment entered for the shortage of land was $77,566.14. Additional damages were allowed for loss of anticipated profits over the life of the contract in the amount of $61,884.21. This figure was awarded without interest and was payable in annual installments from 1965 to 1972. Appellants' motion for a new trial was denied; they contend on this appeal that the Hardins were not entitled to any relief and that damages awarded were excessive. There are several interesting issues presented. Initially we must consider whether the misrepresentations made by the Hills were "fraudulent" by legal definition; and whether the failure of the Hardins to investigate the truth of those assertions would be a bar to relief. Section 13-309, R.C.M. 1947, defines constructive fraud to include, "any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice * * *." We think that the district court correctly ruled that there was "fraud," but it is evident that the Hills did not intend to deceive anyone and made an honest mistake. The Hardins relied upon the Hills' statements since they made no attempt to confirm the amount of acreage or obtain an abstract of title prior to entering the contract. We say, parenthetically that this is astonishing. According to the testimony of Mr. Hardin, a survey monument was discovered in 1963 at the southeast corner of the ranch on the fence line which indicated the true location of the boundary, and which in itself showed that the soil conservation map was in error. The contract described the deeded property by section and lot number from which the deficiency could easily have been computed. Perhaps the most aggravating aspect of this case is the failure of the buyers to exercise a reasonable degree of circumspection before signing the contract. Certainly this is not the case of a naive or inexperienced party who is led astray by the deliberate manipulations of the seller. Mr. Hardin was an experienced real estate developer and it is clear from the record and evidence that he had every confidence in his ability to consummate the sale to his satisfaction. The only attorney who participated in the sale was Don Olsson, an officer of the Ronan State Bank. He drew up the contract and deed at the request of Pedersen. The bank was the escrow holder of the deed and legal services rendered by Olsson were pursuant to his affiliation with the bank. In any event, the Hardins relied upon their own judgment, based upon their own inspection, and did not seek independent legal advice before entering the agreement. *312 Montana decisions have held that the defense of caveat emptor (let the buyer beware) is available in an action based on false representations. Lee v. Stockmen's National Bank, 63 Mont. 262, 207 P. 623; Helena Adjustment Co. v. Claflin, 75 Mont. 317, 243 P. 1063. However, these cases apply the rule where the purchaser had actual notice of the true state of affairs prior to entering the contract for sale. Under the facts of this case it is at least arguable that the Hardins knew that the Hills did not have substantial factual support for the statements made concerning the amount of acreage. To allow a defense of caveat emptor on this basis involves a degree of conjecture which this court should not entertain, and we do not feel it is necessary to a proper resolution of this dispute to formally rule on the matter of caveat emptor. But the relative conduct of the parties in a suit for equitable relief cannot be overlooked. The Hardins at least co-authored the defective transaction before us and should not be heard to deny all responsibility for the consequences. The Hills urge that this was a sale in gross, as distinct from a sale by the acre, and since the Hardins purchased the ranch as a single unit they would not be entitled to any relief. The evidence clearly shows that the ranch was sold as a single going concern; there was no discussion or agreement on a per acre price. Moreover, the contract described the deeded land by section and lot number and did not indicate the number of deeded acres. The lease land was described as "approximately Ten Thousand (10,000) acres." Taking the language of the contract together with the express intent of the parties to bargain for the ranch as a whole, we feel that the sale was clearly one in gross. Generally when land is sold in gross, a variation in acreage from what the parties had contemplated is not grounds for rescission or other relief. Faure v. Martin, 7 N.Y. 210. But this proposition does not apply to a sale in gross induced by material misrepresentations. (55 Am.Jur., Vendor and Purchaser, § 129, p. 604). We therefore hold that the Hardins are entitled to some relief. It is difficult to understand why the district court refused to grant rescission, yet awarded such extensive damages, even more than under rescission. It is true that the court below was in a better position to determine whether it would be possible to restore the parties to the positions they occupied prior to the contract. We do feel that damages awarded to the Hardins are excessive and cannot be allowed to stand as a final judgment. Damages given fall into two categories: for shortage of acreage and for loss of anticipated profits. It is this second element with which we are most concerned. Section 17-301, R.C.M. 1947, provides: "For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." Montana decisions construing this section have consistently followed the test first established in the 1854 English case of Hadley v. Baxendale, 156 Eng.Rep. 145; damages proximately caused by breach of contract are those which were within the reasonable contemplation of the parties at the time the contract was entered. Healy v. Ginoff, 69 Mont. 116, 220 P. 539; Myers v. Bender, 46 Mont. 497, 129 P. 330; Smith v. Fergus County, 98 Mont. 377, 39 P.2d 193. Although this ranch was not purchased on a "cow-unit" or animal unit basis, representations made by the Hills with respect to the number of cows which the ranch would support are relevant in considering what the parties expected and contemplated. The amount of land which was fenced in also relates directly to the question of anticipated profits. *313 The direct testimony of Mr. Hardin clearly indicates how many head he could reasonably expect to run. Mr. Warden: "And I believe the testimony before at the hearing last September was that they [the Hills] told you they were running about 200 head or a few more and that another hundred could be raised without doing anything, improving any of the stuff within the fence?" Mr. Hardin: "That's correct." Mr. Warden: "Now, did this business of how many cattle the ranch would raise have anything to do with your final decision and the payment schedule of the contract?" Mr. Hardin: "Yes." Mr. Warden: "In what way?" Mr. Hardin: "The payment schedule on it or terms of pay on the contract, they reflect the income off of the cattle that the ranch would run." The Hills said that the ranch would carry about 300 to 325 head without further improvements. The district court found that as a matter of fact the ranch would support 500 head. We must conclude from this evidence that the property would support a substantially greater number of cattle than the Hills represented. It is significant also that the Hardins were not experienced in the ranching business; there is no indication that the Hardins made an independent assessment of the carrying capacity of the ranch prior to entering the contract. We are now dealing with what was within the reasonable expectation of the parties at the time of contracting. Applying this standard it is clear that the Hardins were not damaged for loss of profits by the shortage in acres. Now, it is possible that had there been 1,100 more acres under fence, an additional 100 head per year could have been run. But to allow damages on this basis ignores the correct legal standard. The Hardins had up to 800 head on the ranch. There is evidence that cattle placed outside the fence strayed back inside because the fences were not in good repair. It appears that some cattle belonging to neighboring ranchers also wandered inside the fenced area. Perhaps this is why Mr. Hardin claimed that the ranch would not support even 225 head. We doubt that a pasture so over-taxed could support any cattle. That evidence indicates that poor ranch management could have been the reason that expected profits failed to materialize. We feel that there is no evidence to support a judgment for damages based on loss of profits reasonably anticipated by the parties, and hold that such damages should be disallowed as a matter of law. The Hardins should be entitled to the contract value of the missing acreage. The district court assigned a value of $20.00 per acre to land missing from within the fence and $3.50 per acre for land outside. The amount of land fenced in presents an improper or misleading issue. What is actually involved is not whether the land is fenced but the quality of the land so enclosed and the number of cattle it will support. The testimony throughout indicates that the real concern of the Hardins was the occurrence of good grazing land within the fence. As the Hills correctly pointed out, it would be a relatively simple matter to fence off more acreage, if this in fact was the crux of the matter. The Hardins said that this would be of no avail, since land not already within the fence was not good open pasture, being hilly and partially forested. This court has held that representations as to the quality of land and the ability of the land to produce profits sufficient to meet contract payments are expressions of opinion or judgment only, and will not per se constitute actionable fraud. Ott v. Pace, 43 Mont. 82, 92, 115 P. 37. As we have pointed out, there is no evidence that the Hills made any misrepresentations as to the productivity of the ranch. The Hills may have incorrectly expressed their opinion as to the amount of prime grazing acreage, but standing alone this is insufficient *314 grounds for relief. No distinction should be drawn, therefore, between land under fence and that beyond the fence for purposes of computing damages. Whether the leased property is worth as much as the deeded land is basically a fact question. This court has recognized that leased property contiguous to a ranch is valuable to a rancher. Ivins v. Hardy, 134 Mont. 445, 462, 333 P.2d 471, 334 P.2d 721. In computing damages, the district court valued the two types of land equally, and we feel that there is sufficient evidence to support this finding. The Hills certainly considered the leased land to be of equal value as did other ranchers testifying on this question. Damages allowable for the missing acreage should be computed from the contract value on a per acre basis, without distinction between deeded and leased land and whether fenced or open. The Hardins testified that they attributed about $210,000 of the total purchase price to the real estate alone, exclusive of buildings, equipment and livestock. Although the Hills placed a somewhat greater value on the improvements, the figure of $210,000 seems fair and reasonable. The value per acre of 15,000 acres calculated at the contract rate would be $14.00. Since the total shortage was 1,735, damages allowable should be $24,290 (which is 1,735 multiplied by $14). It is of interest to note that the offer of settlement proposed by the Hardins prior to bringing this action was termed "unconscionable" by the trial judge, yet the damages awarded below appear to us equally harsh and excessive. A new trial should be granted unless the respondents agree to accept $24,290 plus interest in damages. In the event a new trial is had, we feel that the possibility of allowing rescission should be considered. The cause is remanded to the district court, with directions to grant a new trial in accordance with this opinion, unless within sixty days after the remittitur is filed with the clerk of that court, the respondents shall file their written consent that the judgment may be reduced to $24,290 plus interest at the rate of 6 percent from the date of the contract. We have not hereinbefore alluded to the contract terms. Contract payments are, and have been, in default since December 15, 1963. In order that proper credit on contract payments be achieved, the district court shall hold a hearing to determine the present contract status, both as to payment and interest schedule. Because of our holding that "fraud," albeit constructive fraud, was had by Hills, and our finding that the Hardins "co-authored" the defective transaction, we do not allow interest to run on the contract payment schedule, during the pendency of this litigation. If the above consent is given, and after such hearing as the district court may hold to achieve the contract schedule as above, the judgment will be and is affirmed as modified, each party to pay their own costs. JAMES T. HARRISON, C. J., and ADAIR, DOYLE and JOHN C. HARRISON, JJ., concur.

January 23, 1967

e70040b2-49e8-455a-816a-9581cac3ae3e

MARRIAGE OF MILLER

N/A

83-189

Montana

Montana Supreme Court

No. 53-189 IN THE SUPREME COURT OF THE STATE OF MON'TANA 1983 IN RE THE MARRIAGE OF KAREN L. MILLER, Petitioner and Respondent, and CHARLES F. MILLER, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Eonorable Douglas Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana For Respondent : Anthony F. Keast, Missoula, Montana Rammerer Law Offices, Missoula, Montana Submitted on Briefs: August 25, 1983 Decided: November 17, 1983 Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. The marriage of the parties was dissolved by order of the court on June 19, 1981. That order awarded two parcels of real property to Karen L. Miller (Wife) and ordered her to pay to Charles F. Miller (Husband) $16,000 for his interest in the 5 acre parcel and $10,000 for his interest in the 59.16 acre pa.rce1. In order to enforce the decree, the husband moved the court for a writ of execution on all real property owned by the wife. On February 8, 1983, the District Court ordered issuance of a writ of special execution "against the five-acre parcel for the judgment of $16,000, plus interest, and against the 59 and 16/100-acre parcel for the judgment of S10,000, plus interest." We affirm the order of the District Court. The June 19, 1981 order dissolved the parties' 12 year marriage, provided for child custody, visitation and support of the parties' minor child, and divided the marital assets and debts. Regarding the award of real property to the wife, the order specifically provided: "7. The Petitioner [wife] is granted all right, title and interest, but subject to the existing mortqage, in the five-acre parcel . . . Respondent shall have no interest in such parcel except as set out below. "8. Petitioner shall pay the Respondent [husband] the sum of Sixteen Thousand Dollars ($16,000.00) with interest at the rate of ten percent (10%) per annum on the unpaid balance commencing July 1, 1981, for his interest in the five-acre parcel . . . Until such time as the Sixteen Thousand Dollars ($16,000.00) plus interest is paid in full, the Respondent shall have a lien on the subject property as security for such sum. "9. Petitioner shall pay the Respondent the sum of Ten Thousand Dollars ($10,000.00) with interest at the rate of ten percent (10%) per annum commencing July 1, 1981, for his interest in the fifty-nine and sixteen hundreds acre parcel. It is hereby ordered that the Respondent shall have a lien on such parcel until such time as the Ten Thousand Dollars ($10,000.00) plus interest to date is paid in full. Such lien shall. constitute Respondent ' s only interest in the fifty-nine and sixteen hund.redths acre parcel. "11. Petitioner [wife] shall receive no maintenance. The Court specifically intends that the property awarded to the Petitioner herein shall be in lieu of maintenance." The 5 acre and 59.16 acre parcels are adjoining properties. Both were gifts from the wife's parents. The District Court determined that the 5 acre parcel was granted to the wife with the intention that it would be used by both parties. A mobile home, which was the Miller family residence, is situated on the 5 acre tract and is presently the home of the wife and the minor child. The wife's parents reside in a home located on the adjoining 59.16 acre pa-rcel, which the parents had deeded to their daughter and grandson. The District Court entered the following conclusions of law regarding the 59.16 acres, title to which was held by the wife and minor child as joint-tenants: "7. Although Petitioner's parents do not own a titled life estate in the fiftg-nine and sixteen hundredths (59.16) acre parcel, it is clear that a strong argument can be made for the proposition that the parcel is held by the Petitioner and her son subject to an equitable trust for a life estate for the benefit of Petitioner's parents. By any account, it would be manifestly unfa.ir to eject the grandparents from their home situa.ted on the f ity-nine and sixteen hundredths (59.16) acre parcel. "8. Respondent has worked hard to improve the fifty-nine and sixteen hundredths acre parcel under the mistaken impression that he was an owner thereof. He is entitled to be compensated for his efforts in the sum of Ten Thousand Dollars ($10,000.00)." The court's order awarding real property to the wife, awarding dollar amounts to the husband and restricting the husband's liens on the wife's real property are based on specific findings of fact and conclusions of law. This order was never appealed and is not challenged here. On March 12, 1982, approximately 9 months after entry of the dissolution order, the husband moved the District Court for leave to execute on the wife's real and personal property in order to satisfy the $26,000 money judgment in his favor. The matter was heard and briefed. The husba.nd alleged in his brief in suppport of the motion that ha had tried to work out a settlement with the wife, hut he had been "continually asked to substantially discount his portion of the estate, or accept small payments over many years." The wife filed an affidavit statinq that her parents had acquired $10,000, together with 10% interest from July 1, 1981. She stated that these funds were available to the husband provided he would execute a satisfaction of judgment on the 59.16 acres so that this parcel could be sold. The wife moved the court for judicial relief in the form of an order allowing the payment of $10,000 plus accrued interest in return for "a Satisfaction of Lien relating to the 59-acre tract." She stated that such an order would in no way affect the remaining $16,000 lien on the 5 acre parcel. The District Court found that a special execution, restricting levy and sale of particular parcels of land for specified amounts, would further the intention of the court and the language contained in its 1981 order. The following Order of Special Execution was entered: "A writ of execution may issue against the five-acre parcel for the judgment of $l6,OOO, plus interest, and against the 59 and 16/100-acre parcel for the judgment of $10,000, plus interest." The question on appeal is whether the trial court abused its discretion by so restricting the execution liens and limiting the husband's right to enforce the money judgment in his favor. Section 40-4-202(1) (c), MCA provides that the court shall consider whether "the property division serves as an alternative to maintenance arrangements." The trial court specifically stated its intention that the award. of property to the wife was in lieu of maintenance. (Provision 11 of the June 19, 1981 Order.) The court also stated the following special considerations: "This [5 acre] parcel will operate to provide a home for the Petitioner a.nd her son. "This [59.16 acre] parcel will provide a source of potential income to the Petitioner if she chooses to sell it consistent with her son's legal interest and the life estate, if any, of her parents." Disposition of Property Consideration, June 19, 1981 order, Exhibit "D" at 3. The District Court molded its decree to do equity to both parties. It ordered a special execution to comply with provisions of the original decree. Appellant-husband failed to appeal the original order, which clearly restricted his lien on each of the two properties to a certain dollar amount. He will not now be permitted collatera-lly to attack those restrictions by arguing that, under enforcement sections of the state code, docketing of the money judgment in his favor automatically lifted these court ordered restrictions. As to money judgments, the code specifically provides: "Whenever an order for the payment of a sum of money is made by a court or judge pursuant to the provisions of this code, it may be enforced b 1 7 execution in the same manner as if it were a judgment." Section 25-13-204, MCA. "When the judgment is for money . . . the same may be enforced by a . writ of execution . . .." Section 25-13-201, MCA. Here the District Court ordered the wife to pay the husband two sums certain and ordered liens to attach to two parcels of property until payment of those sums had been made. Neither party has objected to or appealed from that order. Clearly the District Court has the power to enforce the liens by writ of execution, as stated in section 3-1-113, MCA : "When jurisdiction is, by the constitution or any statute, conferred on a court or judicial officer, all the means necessary for the exercise of such jurisdiction are also given." We hold that the District Court did not abuse its discretion in fashioning a writ of execution in compliance with and to enforce its original order. We affirm the District Court's Order of We concur: Special Execution. b& $, P / , , Chief Justice,

November 17, 1983

f0a0c7fa-b481-4284-94a9-515a73d9dfdb

VERSLAND v CARON TRANSPORT

N/A

82-211

Montana

Montana Supreme Court

IN THE SUPREME COURT OF THE STATE OF MONTANA SHARON R. VERSLAND, Individually, as Personal Representative of the Estate of BERT MARTIN VERSLAND, Deceased, et al., Plaintiff, -vs- CAROTd TRANSPORT, Defendant. ORIGINAL PROCEEDING: FOR COUNSEL: For Plaintiff: Richard W. Anderson argued; Anderson, Edwards & Plolloy, ~illings, Montana: Donald Molloy argued, Billings, For Defendant: Herbert I. Pierce, 111, argued, Crowley Law Firm, Billings, Montana Submitted: May 31, 1983 Decided : Filed: 0 1 : i L I 1~83 Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The United States District Court for the District of Montana has certified this action to this Court for a determination of three issues. The following facts were stipulated for certification. On October 7, 1980, Bert Ma.rtin Versland was driving a New Holla.nd bale wagon in a northerly direction on Montana Highway 191. Near his home, approximatley eighteen miles north of Big Timber, a collision occurred between the bale wagon and the defendant's semi-truck driven by Richard Martineau. Bert Versland was killed in the collision. Sharon Versland, the plaintiff, witnessed part of the collision and then saw her husband's body at the scene. At the time of his death, Bert Versland was married to Sharon Versland. He was the stepfather of Michelle Louise Jones and Laura Marie Korpela, Sharon Versland's minor children by prior marriages. The children were not adopted by the decedent but lived with him and were dependent upon him for support. On November 25, 1980, Sharon Versland filed a complaint against defendant in United States District Court for the District of Montana. In the complaint and her more definite statement, she seeks relief in her own behalf, as personal representative of her husband's estate, and as custodian and next friend of the two minor children. In addition to a claim for her husband's wrongful death, Versland seeks to recover for the shock, fright, mental pain and suffering which she claims were caused by seeing pa.rt of the collision and then seeing her husband-'s body at the scene of the accident. The defendant, Caron Transport, filed a motion seeking to dismiss Sharon Versland's claim for emotional shock and mental anguish on the ground that it fails to state a claim upon which relief can be granted. The defendant al-so challenges the right of the nonadopted minor stepchildren of Bert Versland to state a claim for the loss of consortium and support of Bert Versland. The parties agree three issues materially affect the case and therefore the United States District Court for the District of Montana has requested this Court to accept jurisdiction and decide these issues of state law: 1. Whether under Montana law a spouse may recover for the emotional trauma caused by witnessing a collision which causes the infliction of death or injury of the other spouse; 2. Whether under Montana law a spouse m a . y recover for the negligent infliction of emotional trauma caused by witnesssing a collision which causes the infliction of death or injury to the other spouse; and 3. Whether under Montana law the nonadopted minor stepchildren of a decedent may state a claim for the deprivation of the decedent's consortium and support when they had been received into decedent's family and were supported by the decedent as if he were the natural or adoptive father. Counsel for the plaintiff does not address issue number one in either the brief or in oral argument. Counsel for defendant defines the first issue to mean that plaintiff is asking this Court to hold that there is strict liability in infliction of emotional distress cases. We are somewhat at a loss as to the precise meaning of the first issue; however, assuming defendant's interpretation is correct, this Court can find no rational basis, no overriding interest and no existing authority for extending a blanket of strict liability for the infliction of such emotional distress. Issue No. 2 asks whether a spouse may recover for the negligent infliction of emotional trauma caused by witnessing a collision which causes the infliction of death or injury to the other spouse. This issue has been addressed by many courts in many jurisdictions. Early courts denied recovery of damages for emotional trauma if there was no physical impact with the plaintiff. Mitchell v. Rochester Railway Co. (1896), 151 N.Y. 107, 45 N.E. 354. Later the impact rule was replaced with the "zone of danger" rule. Under this rule, a plaintiff could recover if he were located within the zone of defendant's negligent conduct and feared for his own safety. Amaya v. Home Ice, Fuel & Supply Co. (1963), 59 Cal.2d 295, 379 P.2d 513. In Dillon v. Legg (1968), 68 Cal.2d 728, 441 P.2d 912, the California Supreme Court abandoned the zone of danger rule and allowed recovery for emotional trauma suffered by a mother who witnessed her daughter killed by a motorist as she crossed a street. Although the mother was not in physical danger, the court held it reasonably foreseeable that negligent operation of a motor vehicle that causes injury to a child will cause mental distress to a parent who witnesses the accident. The Dillon court stated: "Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can esta.blish the extent of that obligation for every circumstance of the future. We cam, however, define guidelines which will aid in the resolution of such an issue. . ." Dillon, 441 P.2d 912, 920. In establishing guidelines, the California Supreme Court stated: I1 . . . [in] determining . . . whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: "(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. ( 3 ) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." Dillon, 441 P.2d 912, 920. Since Dillon, many courts have rejected the prior limitation of zone-of-physical-danger and instead have created a zone-of-psychic-danger limitation which is reflected in the first two elements of the Dillon test. The New York Court of Appeals recognized in 1961 that using the impact rule to bar a . 1 1 claims of psychic trauma absent actual physical impact was arbitrary. Battalla v. State (19611, 10 N.Y.2d 237, 176 N.E.2d 729. The court chose instead to rely upon competent medical proof and the jury's historic ability to weed out fraudulent claims. Battalla, 10 N.Y.2d at 242, 176 N.E.2d at 731-732. In another New York case, bafferty v. Manhasset Medical Center Hospital (1980), 103 ~isc.2d 98, 425 N.Y.S.2d 244, a woman was allowed recovery for emotional distress caused by witnessing the death of her mother-in-law resulting from the transfusion of mismatched blood. The court held that since the plaintiff's presence was actually known to the hospital, the only reasonable circumscription of the extent of the duty owed to her wa-s that of a reasonable zone of danger within which psychic trauma could be inflicted. As a result of this reasonably foreseeable danger, a duty arose on the part of the hospital owing directly to the daughter-in-law. In 1979, the Pennsylvania Supreme Court held. that where a mother witnessed a negligently driven automobile strike and kill her minor daughter, while not being in any physical danger herself, the mother could recover for her psychic injuries under the theory that such injuries would be reasons-bly foreseeable to any tortfeasor. Sinn v. Burd (1979), 486 Pa. 146, 404 A.2d 672. In Barnhill v. Davis (Iowa. 1981), 300 N.W.2d 104, the Iowa Supreme Court considered the traditional view, which conditioned recovery on the bystander's presence in the zone of danger but decided that the better view permitted recovery regardless of whether the plaintiff was in the zone of physical danger. Barnhill, 300 N.W.2d at 107. The Dillon requirement of presence at the scene has been expanded in some jurisdictions, including California where a mother was a.llowed to recover when she witnessed her young son being pulled from defendant's pool and participated in the attempt to revive him. The child died three days later. The court concluded that, as a matter of law, it could not say that the injuries resulting from the pool owners' negligence were not still being experienced at the time the mother arrived on the scene. Nazaroff v. Superior Court in and for Cty. of Santa Cruz (1978), 80 Cal.App.3d 553, 145 Cal.Rptr. 657. See also, Landreth v. Reed (Tex.Civ.App. 1978), 570 S.W.2d 486; Grimsby v. Samson (1975), 85 Wash.2d 52, 530 P.2d 291; Archibald. v. Braverman (1969), 275 Cal.App.2d 253, 79 Cal.Rptr. 723. The second Dillon guideline is "whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence." Dillon, 441 P.2d 912, 920. This requirement of actual observance of the event has been expanded since Dillon to include sensory perception of the accident and not just strict observance of the event. Bliss v. Allentown Public Library (E.D. Pa. 19801, 497 F.Supp. 487; Corso v. Merrill (1979), 119 N.H. 647, 406 A.2d 300; a.nd Krouse v. Graham (1977), 19 Cal.3d 59, 562 P.2d 1022. It is clear that over the years since Dillon was handed down, the requirements of presence and observation h.a.ve been expanded and the distinctions between the two elements have blurred. We find that if a plaintiff is required to experience actual sensory perception of the accident, the requirement of proximity is necessarily satisfied. Consequently, we hold that to recover in Montana for the negligent infliction of emotional distress the first element to be considered shall be as foll-ows: Whether the shock resulted. from a direct emotional impact upon plaintiff from the sensory and contemporaneous preception of the accident, as contrasted with learning of the accident from others after its occurrence. The next element pertains to the degree of relationship between the plaintiff and the victim. Dillon requires that the plaintiff and victim be "closely related," as contrasted with the absence of any relationship or the presence of only a distant relationship. This requirement has also been expanded by various jurisdictions in the years since ill on. For example, Arizona, in Keck v. Jackson (1979), 122 ~ r i z . 114, 593 P.2d 668, interpreted this requirement as including "a person with whom the plaintiff has a close personal relationship, either by consanguinity or otherwise." Keck, 593 P.2d 668, 670. The Supreme Court of Hawaii held that the absence of a blood relationship between the victim and the plaintiff bystander would not foreclose recovery of damages for psychic injury, and the New York lower appellate court in Lafferty, supra, permitted a daughter-in-law to recover. We hold, however, that the guideline for the necessary relationship shall be the same as that of Dillon: Whether plaintiff and the victim were closely related, as contrasted with an absence of any rela.tionship or the presence of only a distant relationship. The third element which we hold must be considered in an action for the negligent infliction of emotional distress is: Either death or serious physical injury to the victim must have occurred as a result of defendant's negligence. Under the foreseeability test, supra, we find that it is reasonably foreseeable to a defendant that serious emotional distress to one party may arise from defendant's negligent acts inflicting serious bodily injury or death to a second party. We do not choose to limit recovery strictly to accidents wherein the victim dies. However, we do not intend that bystanders be allowed to recover even where there is severe emotional distress when the victim is not seriously injured . Whether the injury is sufficiently severe to support a claim for recovery will have to be decided on a case-by-case basis in the trial court. We note that a number of jurisdictions still require tha.t plaintiff bystander prove physical manifestations of the underlying emotional trauma. While required under Dillon, California abandoned this requirement in Molien v. Kaiser Foundation Hospitals (1980), 167 Cal.Rptr. 831, 616 ~ . 2 d 813. In Molien the court stated: "It supposedly serves to satisfy the cynic that the claim of emotional distress is genuine. Yet we perceive two significant difficulties with the scheme. First, the classification is both overinclusive and underinclusive when viewed in the light of its purported purpose of screening false claims. It is overinclusive in permitting recovery for emotional distress when the suffering accompa.nies or results in any physical injury whatever, no matter how trivial. . . More significantly, the classification is underinclusive because it mechanica.11~ denies court access to claims that may well be valid and could be proved if the plaintiffs were permitted to go to trial. "The second defect in the requirement of physical injury is that it encoura.ges extravagant pleading and distorted testimony. Thus it has been urged that the law should provide a remedy for serious invasions of emotional tranquility, 'otherwise the tendency would be for the victim to exaggerate symptoms of sick headaches, nausea, insomnia, etc. , to make out a technical basis of bodily injury, upon which to predicate a para.sitic recovery for the more grievous disturbance, the mental and emotional distress she endured. ' (Magruder, Mental and Emotional Disturbance in the Law of Torts (1936), 49 Harv.L.Rev. 1033, 1059; see also Anno. (1959) 64 A.L.R.2d 100, 117, fn. 18, 128 & f. 8 [suggesting that 'in most instances of severe mental disturbance some deleterious physical consequence can, with a little ingenuity, be found . . . , I and that characterization of an injury as physical or mental may depend on the ingenuity of counsel in framing the pleadings] .) " Molien, 616 P.2d at 820. The Court reasoned that the attempted distinction between physical and psychological injury merely clouds the essential issue of proof: whether pla.intiff suffered a serious and compensable injury. In addition, we find that in light of today's more advanced state of medical science, technology and testing techniques, the traditional limitation of requiring the existence of physical injury as a condition precedent to recovery for psychic injury is no longer necessary. While physical manifestation of emotional trauma may be considered by the trier of fact along with other evidence, physical manifestations will not be required to support a prima facie case for negligent infliction of emotional distress. Defendant argues that acceptance of bystander recovery will not further justice and that arbitary rules will not shield the defendant from unlimited liability. We find defendant's arguments unconvicing. Defendant's a-rguments are essentially the same as those raised by the defendan.t in Dillon, and history has shown that Dillon did not provide a basis for unlimited liability, even in those jurisdictions which have relaxed Dillon's basic requirements. We do not state that defendant has unlimited liability in a circumstance such as the facts of this case. Indeed, we specifically hold that defendant has potential liability only for injuries to others which to defendant at the time were reasonably foreseeable. In summary, we hold the following to be proper elements for the courts to apply when determining a claim for dama.ges for the negligent infliction of emotional distress: 1. The shock must result from a direct emotional impact upon the plaintiff from the sensory and contemporaneous perception of the accident, as contrasted with learning of the accident from others after its occurrence. 2. The plaintiff and victim must be closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. 3. Either death or serious physical injury of the victim must have occurred as a result of the defendant's negligence. Issue No. 3 asks whether the nonadopted minor stepchildren of decedent may state a claim for the deprivation of decedent's consortium and support. Plaintiff argues the basis for these damages is section 27-1-323, MCA: "[iln every action under 27-1-512 and 27-1-513 such damages may be given as under all the circumstances of the case may be just,'' and section 27-1-513, MCA: " [wlhen the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person." (Emphasis added.) Plaintiff contends decedent's nonadopted stepchildren are "heirs" within the meaning of section 27-1-513, MCA, and to exclude their claim would be contrary to public policy. Heirs are those persons who are entitled to the property of a decedent under the statutes of intestate succession. Section 72-1-103 (18) , MCA. A child may take from a decedent through intestate succession if the child is issue of the decedent. Section 72-2-203, MCA. Issue of a person means all his lineal descendants. Section 72-1-103 (22) , MCA. Thus, nonadopted stepchildren of a decedent are not heirs as defined by the intestacy statutes. As this Court stated in Swanson v. Champion International Corp. (Mont. 1982) , 646 P.2d 1166, 1170, 39 St.Rep. 639, 643, ". . . the source of the damages recoverable in a wrongful death action is personal to the survivors of the decedent. The damages are not those of the decedent, but of the heirs by reason of his death." As the stepchildren are not heirs, they are not entitled to bring a claim for the deprivation of decedent's consortium and support. Plaintiff argues the Arkansas Supreme Court recognized stepchildren's claim for loss of consortium and support in Moon Distributors, Inc., v. White (1968) , 245 Ark. 627, 434 S.W.2d 56. However, under Arkansas's wrongful death statute, beneficiaries of a wrongful death claim "are the surviving spouse of the deceased person, children, father and mother, brothers and sisters, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood --- in loco parentis." Ark.Stat.Ann. Section 27-908. (Emphasis -- a.dded.) Thus, the Arkansas wrongful death statute is drafted specifically to include stepchildren whereas the Montana wrongful death statute is not. Pla.intiff claims a stepparent who provides support to a stepchild becomes a "presumptive parent." Section 40-6-217, MCA. However, this section is not related to the wrongful death statute and only provides that "if he receives them into his family and supports them, it is presumed that he does so as a parent and, where such is the case, they are not liable to him for their support nor he to them for their services." Lastly, plaintiff argues even if the stepchildren cannot recover under the wrongful death statute, they are entitled to bring a separate action for loss of consortium. In some jurisdictions a natural child may bring a cause of action for loss of consortium. See, Ferriter v. Daniel OIConnell's Sons, Inc. (Mass. 1980), 413 ~ . ~ . 2 d 690. However, these cases deal only with natural children whereas the issue certified by the Federal District Court deals only with nonadopted stepchildren. Thus, these cases are not controlling. We therefore hold that nonadopted minor stepchildren of a decedent cannot state a claim for the deprivation of decedent's consortium and support. A copy of this opinion shall be mailed to the Clerk of the United States District Court for Montana, Billings Division. % A d ? g * ~ Chief Justice We concur: District Judge, sitting in place of Mr. Justice John Conway Harrison

October 21, 1983

9f30ae88-07e4-458c-a4dd-18031edd0780

MONTANA INNKEEPERS ASSOC v CITY O

N/A

83-250

Montana

Montana Supreme Court

NO. 83-250 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 MONTANA INNKEEPERS ASSOCIATION, Plaintiff and Appellant, VS . CITY OF BILLINGS, Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Charles Luedke, Judge presiding Counsel of Record: For Appellant: Philip W . Strope argued, Helena, Montana Hjort, Lopach & Tippy, Helena, Montana Roger Tippy argued, Helena, Montana For Respondent: K. D. Peterson argued, Billings, Montana For Amicus Curiae: Larry Huss, Helena, Montana Larry Mansch aruued Helena Montana Landoe, Brown Law Firm, Bozeman, Montana Submitted. September 13, 1983 Decided October 27, 1983 Filed. QCT 2 ? 1983 Clerk Honorable John M. McCarvel, District Judge, delivered the Opinion of the Court. This is an appeal from the District Court of the Thirteenth Judicial District of the State of Montana, in and for the County of Yellowstone, the Honorable Charles Luedke presiding. The appellant-plaintiff, Montana Innkeepers Association, hereinafter referred to as "Innkeepers," instituted a declaratory judgment proceeding pursuant to the provisions of the Uniform Declaratory Judges Act, Title 27, Chapter 8, Montana Code Annotated, against the City of Billings, Montana, respondent-defendant, hereinafter referred to as "City," to declare Ordinance No. 83-4461 enacted by the City Council of Billings, Montana, to be illegal and void. Amicus curiae briefs were permitted to be filed by the Montana Legal Defense Fund, Inc., a division of the Montana Taxpayers Association, and by the City of West Yellowstone, Montana, which has enacted a similar ordinance. Prior to the 1972 Constitution of the State of Montana, local governments could exercise only such powers as were expressly granted to them by the State together with such implied powers as were necessary for the execution of the powers expressly granted. The 1972 Montana Constitution, in addition to providing for the continuance of the county, municipal and town governmental forms already existing, opened to local governmental units new vistas of shared sovereignty with the state through the adoption of the self-government charters. Whereas the 1972 Montana Constitution continues to provide that existing local governmental forms have such powers as are expressly provided or implied by law (to be liberally construed), Art. XI, Sec. 4, 1972 Mont. Const., a local- government unit may now also act under a self-government charter with its powers uninhibited except by express prohibitions of the constitution, law or charter, Art. XI, Sec. 6, 1972 Mont. Const.: "Self-government powers. A local government unit adopting a self- government charter may exercise any power not prohibited bv this constitution, law or charter . . ." The broad expanse of shared sovereignty given to self-governing local units is illustrated by section 7-1-103, MCA, which provides: "A local government unit with self- government powers which elects to provide a service or perform a function that may also be provided or performed by a general power government unit is not subject to any limitation in the provision of that service or performance of that function except such limitations as are contained in its charter or in state law specifically applicable to self-government units." And again in section 7-1-106, MCA: "The powers and authority of a local government unit with self-government powers shall be liberally construed. Every reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority." State ex rel. Swart v.Molitor (Mont. 1981), 621 P.2d 1100, Pursuant to such authorization, according to the Secretary of the Montana League of Cities and Towns, Inc., the following nineteen local governments have elected to be self-governing: Anaconda-Deer Lodge County Glasgow Billings Helena Bridger Hingham Broadview Neihart Browning Poplar Butte-Silver Bow County Sunburst Circle Virginia City Clyde Park Ennis Fromberg West Yellowstone Whitefish The City of Billings is a municipality in the State of Montana, which has adopted a charter form of government with self-governing powers. On August 23, 1982, the City of Billings adopted Ordinance No. 82-4461, which provides for a "fee" of $1.00 per adult transient occupant for each day of occupancy of a room in a hotel, motel, or other place of lodging within the City when the occupancy is for a period of one day or more, but not exceeding fourteen consecutive days. The ordinance was referred to the electors of the City of Billings at the election held in November 1982, the voters approved it, and the ordinance became effective January 1, The owner or operator of a lodging establishment is obligated to collect the fee and remit the same to the City monthly, less 2 percent administrative costs, and is subject to penalty for noncollection, audit and inspection. Section 5.10.010 of the ordinance states specifically its purpose: "Purpose of the occupancy fee imposed by this ordinance is to provide a portion of the revenue necessary to construct and reconstruct the arterial and collector streets of the City in a good substantial condition and a portion of the necessary expense of police and fire and allocable incidental administration costs. The fees imposed hereby will enable those persons non-resident of the City to pay a portion of the services of the city that extant within the City for their benefit and protection during their sojurn within the City. " In addition the city council could allocate up to 20 percent of revenue to promote tourism, conventions and other similar activities within the City. Innkeepers is a nonprofit corporation organized under the laws of the State of Montana. It is a voluntary trade a.ssociation organized and existing for the benefit of the lodging industry of the State of Montana. Members thereof are the owners and operators of lodging establishments within the City of Billings wherein they pro.trid.e, among other things, overnight lodging services for the genera1 public. The District Court held that the express purpose of the ordinance was to generate revenue; that the ordinance does not indicate any activity that is being regulated; and concluded, as a matter of law, that the "fee" imposed by the 0rdin.a-nce is a tax, and not a "fee." Innkeepers do not appeal that portion of the District Court order. The sole issue on a-ppeal is whether the tax imposed by the ordinance is a tax prohibited by statute, and specifically section 7-1-112(1, MCA, which provides as follows: "A local government with self-government powers is prohibited the exercise of the following powers unless the power is specifically delegated by law: " (1) the power to authorize a tax on income or the sale of goods or services, except that this section shall not be construed to limit the authority of a local government to levy any other tax or establish the rate of any other tax." The power to tax the sale of goods or services has not been delegated to local governments. The District Court held that the renting of a hotel or motel room is the sale of a service, but since the ordinance imposed the tax on the person occupying the room and not on the transfer of that room, it is not a tax on the sale of goods or services. Counsel for the City a.rgued that the renting of the room has nothing to do with the tax imposed. Therefore, every nonresident of the City upon entering the City is subject to the tax. However, hotel and motel operators are the only busi-nesses permitted to levy the tax. Restaurants, bars and other businesses may not collect the tax from a transient nonresident. This reasoning of course is fallacious. The renting of the room cannot be divorced from the collection of the tax. Therefore, the tax is a tax on the sale of a service and prohibited by section 7-1-112(1), MCA. J. A. Tobin Const. Co. v. Weed (1965), 158 Colo. 430, 407 P.2d 350. 68 Am.Jur.2d Sales and Use Taxes, § -- Hotels and motels sell a product or service which is temporary lodging. The occupant is the consumer since he purchases the service. No title changes hands, but the consumer comes into temporary possession of the room. A tax placed on that transaction is a sales tax. The District Court relied as sole support for its decision on the case Teachers Retirement System of Georgia v. City of Atlanta (1982), 249 Ga. 196, 288 S.E.2d 200. That case held a public entity cannot claim its tax-exempt status on properties it has acquired through foreclosure, for that would result in significant loss of revenue to the taxing authorities. The entity acquires title to those properties subject to existing taxes. The Georgia court merely decided who must pay the tax. - A crucial distinction must be made between Teachers Retirement System and the case at hand. In the Georgia case, the validity of constitutionality of the taxes was not at issue. The question of whether the Atlanta hotel--motel excise tax wa.s or was not a sales tax was not before the court. Teachers Retirement System based its entire case on the sole argument that it enjoyed tax-exempt status. Whether a tax is actually imposed on the vendor, or upon the occupant, may be important for deciding whether the taxing authorities can collect the tax. It is of no importance in determining the nature of the tax--whether it is or is not a sales tax. Therefore, Teachers Retirement System is of minimal significance to the issue of whether the City of Billings has imposed an invalid sales tax. Ordinance No. 82-4461 enacted by the City is illegal and void. The judgment. of the District Court is reversed. ~Ystrict Judge, sitting in place of Mr. Justice Frank B . Morrison, Jr. We concur: L a . . $ & & J woaQ Chief Justice

October 27, 1983

78222829-b64b-4ddc-9276-7f2ed28038e8

STATE v WILLIS

N/A

82-322

Montana

Montana Supreme Court

No. 82-322 IN T I I E SUPREIflJ COURT OF THE STATE OF MONTANA 1983 STATE OF MONTANA, Plaintiff and Respondent, -vs- VICTOR M.ARVIN WILLIS, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John PI. McCarvel, Judge presiding. COUNSEL OF RECORD: For Appellant: Ralph T. Randono argued, Great Falls, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana George Schunk argued, Legal Intern, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Submitted: September 12, 1983 Decided: December 13, 1983 Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Willis was convicted of sexual intercourse without consent and agqra~rated burglary in the District Court of Cascade County following a jury trial. The Court sentenced Pillis to a term of fifteen years on each count to be served concurrently and designated Willis a nondangerous offender. Willis appeals both the convictions and the sentences. We affirm. The rape victim was awakened in her apartment by a man with his hands around her throat at approximately 5:00 to 5:15 a.m. on December 21, 1981. When she screamed for help, the man's hands tightened around her throat and he told her to "shut up." She did not recognize his voice this first time he spoke. She attempted to scream again and her attack- er again told her, this time in a different tone of voice, to "shut up." This time she immediately recognized Willis's voice and used his name, to which he did not respond. He also called her by her nickname and told her to ". . . shut up, or I'll hurt you." The victim recognized the cologne or aftershave Willis was wearing, and although the light was dim, she recognized Wj-llis's profile by the light from a street light shining through a window. A review of the file, including the initial police reports, shows that the victim has never had any doubt regarding the identity of her attack- er. There were, however, discrepancies between the victim's description of her attacker s clothing and the clothing Willis was said to have been wearing that night. After the rape, when the victim was able to get away from Willis, she grabbed a robe and ran barefoot and scream- ing into the street. Still screaming, she knocked on neighbors' doors but they did not respond. Joyce Carter, a woman who heard her screams while delivering newspapers, came to her assistance and took her to the sheriff's department. Carter saw the attacker as he ran to his car. She ~bserved Willis drive away in his car which she identified as a bright blue Ford small car. At the time she thought the car was either a Pinto or a Mustang from the front but not from the rear and at that time could not remember the name of the other Ford compact car. At the time of the rape, Willis owned a bright blue Ford Maverick. From the sheriff's department, the victim was taken directly to a hospital for a rape examination. The doctor testified that the physical evidence showed that she had had sexual intercourse within the preceding twelve hours. He also noted the presence of abrasions on both sides of her neck. Defendant Willis relied on an alibi defense at his trial. He had several witnesses who testified that he had been with them at an all-night beer party and did not leave until approximately 5:30 a.m. This testimony was impeached on rebuttal by the testimony of Officer Renman, who testified that he had interviewed the witnesses shortly after the rape and at that time they stated that the drinking party had broken up earlier. Officer Renman used his handwritten notes of these interviews to refresh hjs recol-lection during direct examination-in-chief on rebuttal. Whether these handwritten notes are subject to discovery under section 46-15-302(2), MCA, is appellant's basic issue on appeal. Three issues are raised which we summarize as follows: 1. Did the trial court err in denying defendant's motion for a mistrial when a police officer testified at the trial from notes which had not been produced in response to a motion to produce? 2. Are the notes of a police officer, taken during interviews with defense witnesses, exempt from discovery under the "prosecution work product" exception to section 46-15-302 (2) , MCA? 3. Must handwritten police officers' notes of the prior inconsistent statements of defense witnesses, used for impeachment, be produced as exculpatory under section 46-15-302 (2) , MCA? The defendant both raises and disposes of the first issue regarding whether a mistrial should have been declared. when it was discovered for the first time during trial that there were police offi.cer's notes in existence. The record shows that defense counsel was informed of the existence of Officer Renman's personal notes during the omnibus hearing held approximately two months prior to trial-. In addition, defense counsel's own motion to produce filed prior to trial specifically mentions Officer Renmanls handwritten notes. Defense counsel can hardly state that he first discovered the existence of the notes at trial when they were discussed at the omnibus hearing and were later specifically identified in his motion to produce. An examination of the relevant statute is dispositive of this appeal. That statute provides: "46-15-302. Discovery of writings and objects. In all criminalcases oriainallv triable in the district court, the follow: ing rules shal.1 apply: "(2) Upon motion of the defendant within a reasonable time before trial, the court may, upon a showinq of good cause, order the prosecution to produce, prior to trial at a time and place designated by the court, for inspection, photographing, or copying by the defendant designated books, statements, papers, or objects obtained from the defendant or others by the prose- cution which are material, relevant, and necessary to the preparation of the defen- dant's case. This subsection does not apply to the work product of the prosecu- tion, which is documents drawn up by law enforcement officials for internal commu- nications and law enforcement officers ' field notes, except that any exculpatory information contained in such documents or notes must be produced." (Emphasis added. ) We note that the statute first requires a showing of %>* A good cause before a court can order the prosecution to pro- duce evidence. A thorough review of the record fails to disclose any showing of good cause by defense counsel in requesting the officer's field notes. These notes were taken during inter- views with defense counsel's own witnesses. He had continual access to these witnesses from the investigation stage of the ma.tter through the final resolution. There is nothing to indicate tha.t any of these witnesses were oth.er than totally cooperative with defense counsel. However, even if they had been hostile or uncooperative, other forms of discovery, such as the taking of their depositions, were available to coun- sel. He did not avail himself of these other discovery methods. Counsel also cou1.d have reviewed the notes during trial but chose not to take advantage of this privilege. Instead, he elected to move for a mistrial but. did not prevail. Defense counsel argues, and we agree, that discovery is an important aspect of criminal procedure. He cites Williams v. Florida (1970), 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446, which states that the primary purpose of discovery is to avoid a "poker game attitude" in which players enjoy an absolute right to conceal their cards until played. We agree with this statement also. However, there is no risk of concealment under the circumstances disclosed here. These were defense witnesses, not prosecution witnesses, and were clearly accessible and cooperative. All counsel had to do to discover the contents of the notes was to ask his own wit- nesses what thev said to Officer Renman, depose him with a subpoena duces tecum, or examine the notes at the trial. None of these available remedies was utilized. There was no showing of good cause nor could there be such a showing under these circumstances. In conclusion, we find that in order for counsel to prevail under section 46-15-302 ( 2 ) , MCA, there must first be a showing of good cause before the court can order produc- tion. There was no such showing here. Since there was no showing of this first requirement of good cause, we never reach the issue of the work product exclusion or the excep- tion of exculpatory material. We affirm. 344.$44m& Chi-ef Justice We concur: trict Judge, sitting in place of Mr. Justice Frank B. Morrison, Jr.

December 13, 1983

96b6919f-f066-4bcf-afec-0f108516a731

HUTCHINSON v MORAN

N/A

83-083

Montana

Montana Supreme Court

No. 83-83 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 BURTON HUTCHINSON, Plaintiff and Respondent, DUANE MORAN, HAROLD R. DeP4ERS and JEFFERSON COUNTY, Defendants and Appellants. APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Ilonorable Mark P. Sullivan, Judge presiding, COUNSEL OF ,WCORD: For Appellant: Richard E. Gillespie; Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, Montana For Respondent : James P. Harrington, Butte, Montana Submitted on Briefs: October 7, 1983 Decided: December 29, 1983 Filed: 3%&: 2 3 \983 Clerk Mr. Justice John. C. Sheehy delivered the Opinion of the Court. This case comes on appeal from an order of the District Court, Second Judicial District, Silver Bow County, denying defendant's motion for a change of venue. We affirm. Sometime during 1981, Si lver Row County erroneously reissued the registration number of plaintiff's vehicle, a 1973 Torino, to an automobile belonging to one Paul Miller. Miller's car, a Toyota, was subsequently stolen and Miller reported that fact to the Butte-Silver Bow County Sheriff. The vehicle was later recovered, but Silver Bow County officials failed to reflect that fact on their records. Later, on May 31, 1981, codefendant Duane Moran, a Jefferson County deputy sheriff, was patrolling the main street in Basin, Jefferson County, Montana. Moran saw plaintiff's parked vehicle with the same 1-icense number as that registered to Miller's Toyota. Moran requested status information from the Jefferson County Sheriff's Office which later confirmed, after inquiry to Silver Bow County, that the license number matched the car registration number reported stolen. Plaintiff was arrested because he could not produce his vehicle registration certificate. Later that day, plaintiff was released when the Jefferson County authorities discovered the error. Plaintiff brought suit against Silver Bow County and Jefferson County and their agents in Silver Row District Court seeking damages for several constitutional vi olations, negl-igence, false arrest, false imprisonment and invasion of privacy. On August 31r 1982, defendant Jefferson County moved for a change of venue to Jefferson County as to all the claims against it and its agents. The District Court denied the motion and this appeal followed. This Court has decided venue in earlier cases in which counties have been named as defendants. In Good Roads Machinery Co. v. Broadwater County (1933), 94 Mont. 68, 70-71, 20 P.2d 834, 835, we held that the "may" provision in section 9095, R.C.M. 1921 (now section 25-2-106, MCA), constituted a statutory grant of permission to sue a county, and that a plaint-iff was limited to bringing the suit in the defendant county. In State ex rel. Montana Deaconess Hosp. v . Park County (1963), 1.42 E I o n t . 26, 381 P.2d 297, we found an exception to the rule where two counties were necessary parties to the action and the suit had been brought in the District Court of one of the counti-es. In State ex rel. Kesterson v. District Court (Mont. l980), 614 P.2d 1050, 37 St.Rep. 1278, we held where the complaint did not show that each of the two counties sued was a necessary party to the action, the counties should he sued where they are located. The holdings in those cases must he re-examined in the light of Art. 11, § 18, 1972 Mont. Const., which makes state and political subdivisions subject to suit for injury to person or property except as may be specifically provided by two-thirds vote of each house of the legislature, and the further provisions for venue of county defendants contained in section 2-9-312, MCA, first adopted in 1973. Good Roads Machinery Co., above, was decided before the adoption of the constitutional provision here referred to and so its holding that the venue statute, section 25-2-106, MCA (formerly section 93-2903, R.C.M. 1-947) , consti-tuted a grant of permission to sue a county no longer holds. The right to sue county now exists by virtue of constitutional authority, supplemented by legislati~re action. The venue of actions against counties is now governed by the provisions of section 2-9-312 (2) , I l ' I C A , as fo3 lows: " (2) Actions against a political subdivision shall he brought in the county i n which the cause of action arose or in any county where the political subdivision is located." In section 2-9-101(l) (e) , MCA, a county is included in the definition of a "political subdivision." Section 2-9-102, MCA, makes every governmental entity subject to liability for its torts and those of its employees except as specifically provided otherwise by the legislature under Art. 11, § 18, 1972 Mont. Const. Jurisdiction of actions brought against a state governmental entity is given to the d-istrict courts in section 2-9-311, MCA, and in that section it is also provided that such actions shall be governed by the Montana Rules of Civil Procedure insofar as they are consistent with the statutes relating to suits against political subdivisions. Since by statute the Montana Rules of Civil Procedure apply, we find in Rule 19(a), that a "person [which includes in this case a county1 who is subject to service of process shall be joined as a pa.rty in the action if (1) in his absence complete relief cannot be accorded among those a1rea.d~ parties . . . " However, Rule 19 (a) , also provides that " [i] f the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action." It thus a.ppea.rs that if we applied the provisions of the venue section, section 2-9-312 (2) , supra, and Rule 19 (a3 , strictly, our holding should. be that where two counties are sued in one action, and both are necessa-ry parties to the action, nevertheless, one of t.hem must be dismissed from the action if it raises an objection as to venue. That is what has occurred here. Such a result, however, would appear to us to be obnoxious and not within. the contemplation of the framers of either the statutes permitting suits against governmental subdivisions or the Montana Rules of Civil Procedure. In this case, for example, if Jefferson County were to be dismissed from the Silver Row County action, the provisions of Rule 19 (b) , Montana Rules of Civil Procedure could very well come into play. Under Rule 19(b), if the court determined that in equity and good conscience the action should not proceed with the remai-ning county before it, that action would be dismissed because the absent county would be regarded a . s indispensable. On the other hand, if the plaintiff commenced an action against and in Jefferson County and named Silver Bow County as an additional defendant, the same resu1.t would eventually obtain. Thus the plaintiff i s placed in an impossible situa.tion where there are two indispensable parties either of which mav object to venue and on strict a.pplication of the rules and statutes, each would be entitled to either a change of venue or dismissal. In this situation, we advert to and adopt the reasoning of this Court in State ex rel. Monta.na Deaconess Hosp. v. Park County ( 1 9 6 3 ) , 1.42 Mont. 26, 28, 381 P.2d 297, 298, wherein we said: "In the Good Roads Machinery Co. case, this Court held that the provisions of this statute should he strictly construed and that if an action against a county brought in a county other than the one sued, the District Court would be without jurisdiction to try it. This interpretation is correct where only a single county is involved, but here we have a s i t u a t i o n where two counties a r e necessary p a r t i e s defendant. I n our opinion, reason d i c t a t e s t h a t i n such a s i t u a t i o n e i t h e r county would be a proper county i n which t o commence and prosecute t h e a c t i o n and t h a t r e l a t o r may choose e i t h e r of s a i d counties i n which t o f i l e i t s action and such county w i l l then become t h e proper county f o r t h e t r i a l thereof a g a i n s t both defendant counties." Because both counties i n t h i s case a r e necessary p a r t i e s t o t h e a c t i o n , and because S i l v e r BOW County i s a proper venue f o r a t l e a s t one of t h e defendant counties, we a f f i r m t h e ord.er of t h e D i s t r i c t Court i n refusing t o g r a n t change of venue a s t o Jefferson County and J u s t i c e (1 i W e Concur: J u s t i c e s Mr. Justice L.C. Gulbrandson dissenting. I respectfully dissent. The plaintiff's allegations against Silver Bow County state a claim based upon negligence while the allegations against Jefferson County charge false arrest, false imprisonment, assault and battery and several constitutional violations. This Court in State ex rel. Kesterson v. District Court (Mont. 1980), 614 P.2d 1050, lQ52, 37 St.Rep. 1278, 1280, stated: "In Deaconess Hospital, two counties disclaimed liability for one hospital payment for a welfare patient. Because it was necessary to determine which of the counties was the residence of the patient, and thus liable, both counties had to be joined as party defendants. This Court found that either county would be a proper one in which to prosecute the action. Deaconess Hospital, supra, 142 Mont. at 27-28, 381 P.2d at 298. "In this case, the complaint does not allege that either Missoula County or Lake County was the exclusive cause of one injury. Rather, the pleadings indicate that the plaintiffs could have been damaged by the actions of either or both counties acting separately. In such a situation both counties are not necessary parties to one action, and the counties should be sued where they are located." (emphasis supplied) Here, it appears that each county, for its separate acts under the pleading, could be found liable to the plaintiff. I would reverse and order that the action against Jefferson County and its officials be tried in Jefferson County. I Justice

December 29, 1983

9cd29e71-cf58-4ab1-af04-45b7c203d8e1

MARRIAGE OF SARSFIELD

N/A

83-140

Montana

Montana Supreme Court

No. 83-140 IN THE SUPREME COURT OF THE STATE OF MONTANA 1383 IN RE THE MARRIAGE OF LINDA H. SARSFIELD, Petitioner and Appellant, and MICHAEL J. SARSFIELD, Respondent and Respondent. APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable Arnold Olsen, Judge presiding. COUNSEL OF RECORD: For Appellant: Daniel R . Sweeney, Butte, Montana For Respondent: Deirdre Caughlan, Butte, Montana -------.-- Submitted on Briefs: August 4, 1983 Decided: October 27, 1983 Filed: 8CT 2 :? El83 @ * 4 4 - - -- Clerk Mr. Justice L.C. Gulbrandson delivered the Opinion of the Court. Linda Sarsfield appeals from an order of the District Court of the Second Judicial District, Silver Bow County, in favor of her former husband, Michael Sarsfield, modifying a prior child custody decree by transferring custody of the former couple's minor children from Linda to Michael. For the reasons stated below, we reverse the order of the trial court and remand for additional proceedings consistent with this opinion. Michael and Linda were married in November, 1970, and remained together for approximately nine years. Two children were born of this union: Michael John, now twelve, and Sarah, now four. Husband Michael apparantly left the family home in 1979 shortly before Sarah's birth. Linda filed a petition for dissolution of the marriage in November, 1980, and sought permanent custody of the children and child support. Michael agreed to the custody proposal, and after negotiations between the parties over child support and property were completed, the court issued a final decree of dissolution on February 6, 1981. Linda received custody, and Michael was allowed liberal visitation rights. Michael moved into a mobile home located next door to the family home. He remarried sometime later, and he and his new wife had a baby girl in 1982. The immediate dispute began nearly a year after the entry of the divorce decree and custody order. On April 16, 1982, Michael filed a petition to modify the custody decree. The petition alleged that the children had been left alone on several occasions in the care of M.M., whom Michael believed to be a child molester. The petition further alleged that Linda and M.M. were planning to marry, and that the homelife of the children seriously endangered their physical, mental, moral, and emotional health. Michael sought temporary and permanent custody of the children, maintaining that the benefits of a transfer would outweigh any disadvantages. He also filed a motion requesting that the court conduct an in camera inspection of all records and documents in possession of the Department of Social & Rehabilitation Services (S.R.S.) relating to abuse of M.M.'s daughter. In her answer, Linda admitted her impending marriage to M.M., but denied that the children were in any danger and that a change in custody would be in their best interests. She also filed a counter-petition, contending that Michael's petition was vexatious and constituted harrassment. Four separate hearings were held concerning the proposed modification. The first, conducted May 7th, 1982, focused primarily on the allegations concerning M.M. and the supposed threat to the Sarsf ield children. Michael testified in support of his petition, as did his new wife, Penny. M.M. was called as a hostile witness, but the bulk of testimony concerning M.M.'s sexual proclivities came from M.M.'s former wife, who appeared voluntarily at Michael's request. Dr. Janet Allison, a psychologist, also testified on matters concering sexual abuse of children. Linda took the stand to challenge the allegations of Michael and his witnesses. Her minister, Dwayne Miller, testified on her behalf. At the conclusion of the hearing, the court ordered that the children be placed in Michael's custody for two weeks, and then be returned to Linda for two weeks. The court further ordered that public welfare authorities investigate the home environments of Michael and Linda while the children were in their respective custody. Finally, the court ordered that M.M. was not to be allowed in the presence of the Sarsfield children, and granted Michael's motion for a court inspection of the S.R.S. file on M.M.'s daughter . The second hearing, held May 28th, dealt with the alleged presence of M.M. in Linda's home in violation of the court's May 7th order. Testimony was taken from Michael, Linda, and members of their respective families, as well as M.M. Upon conclusion of the hearing, Michael was granted temporary custody of the children. The third hearing, held June 18th, consisted primarily of testimony from Dave Evans, the social worker who investigated Michael's and Linda's home environments. Evidence was also taken from Michael and his mother, Olive, as well as Linda and Pastor Miller, and Ronald Kautzman, Michael John Sarsfield's principal at the school he attended while under his mother's custody. A separate colloquy was held with Michael John on September 28th in the presence of counsel, wherein the court interviewed the boy concerning his current family life and that of his sister Sarah. The court entered its findings and conclusions November 29th, 1982. Specifically, the court found that the children's physical, mental, moral and emotional health were seriously endangered by the association of M.M. with Linda Sarsfield, because of M.M.'s status as a child molester, and t h a t t h e r e was a p o t e n t i a l f o r f u t u r e harm i f t h e c h i l d r e n remained i n L i n d a ' s custody. The c o u r t f u r t h e r found t h a t L i n d a ' s c o n d u c t was, u n d e r t h e c i r c u m s t a n c e s , " g r o s s l y n e g l i g e n t and i r r e s p o n s i b l e . " The c o u r t concluded t h a t a t r a n s f e r of custody t o Michael was i n t h e b e s t i n t e r e s t s of t h e c h i l d r e n , i n t h a t t h e a.dvantages of t r a n s f e r outweighed t h e d i s a d v a n t a g e s . Linda was g r a n t e d v i s i t a t i o n r i g h t s . A motion t o amend t h e f i n d i n g s and c o n c l u s i o n s was promptly f i l e d . A h e a r i n g was had, and t h e motion t o amend was denied. Notice of a p p e a l was t i m e l y f i l e d . Linda r a i s e s t h r e e i s s u e s on a p p e a l : (1) Whether t h e t r i a l c o u r t e r r e d by f a i l i n g t o d i s m i s s M i c h a e l ' s p e t i t i o n f o r m o d i f i c a t i o n f o r f a i l u r e t o meet t h e j u r i s d i c t i o n a l p r e r e q u i s i t e s of S e c t i o n 40-4-219, MCA? ( 2 ) Whether, i n l i g h t of t h e evidence and t h e s t a t u t o r y r e q u i r e m e n t s c o n c e r n i n g c h a n g e s i n t h e c i r c u m s t a n c e s of t h e c h i l d r e n , t h e c o u r t e r r e d i n modifying t h e o r i g i n a l custody d e c r e e ? ( 3 ) Whether t h e t r i a l c o u r t e r r e d i n s u s t a i n i n g an o b j e c t i o n t o h e a r i n g testimony concerning a l l e g a t i o n s of M i c h a e l ' s f i t n e s s t o b e g r a n t e d c u s t o d y , w h e r e t h e a l l e g a t i o n s involved m a t t e r s o c c u r i n g b e f o r e and a f t e r t h e o r i g i n a l custody d e c r e e ? Once a g a i n , t h i s Court is c a l l e d upon t o assume t h e unenviable r o l e of King Solomon and render judgment between p a r e n t s warring over t h e f u t u r e of t h e i r c h i l d r e n . T h i s s a d and d i f f i c u l t t a s k is made even more vexing because of t h e unique f a c t s of t h i s c a s e . Many of t h e e v i d e n t i a r y m a t t e r s r a i s e d by t h e p a r t i e s have n o t y e t been addressed by t h e appellate courts of sister states, especially those that, like Montana, have adopted Uniform Marriage and Divorce Act provisions respecting modification of child custody decrees. Thus, we set out, to an extent, upon unchartered waters, although our prior experience with considering modified custody decrees does offer at least one star upon which we may rely when plotting our course. The polestar that guides our discretion in this modification case is mapped out carefully in certain provisions of Section 40-4-219, MCA: "40-4-219. Modification. (1) The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless: "(c) the child's present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him." Subsection (c) is a jurisdictional prerequisite to determining whether modification of the prior decree is in the best interests of the child. In other words, the district court "is powerless to entertain . considerations [of best interests and changes in circumstances] if it has not found at the outset [that] the child's welfare [is] 'endangered seriously' by the present custody arrangement." Gianotti v . McCracken (1977), 174 Mont. 209, 214, 569 P.2d 929, 932. See also In re the Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 171-2. This prerequisite codifies the basic policy behind the modification statute: a presumption in favor of custodial continuity. Dallln er supra. Thus, the party -7z-I seeking modification bears a heavy burden to prove the circumstances necessary for modification. Groves v. Groves (1977), 173 Mont. 291, 298-99, 567 P.2d 459, 463. The sine qua non of appellant's case is a satisfactory showing that the trial court proceeded without regard to the evidence relied upon to support the change in custody. We emphasize, however, that the findings and conclusions of the court will not be disturbed if they are supported by substantial, credible evidence. Sawyer-Adecor Intern., Inc. v . Anglin (Mont. 1982), 646 P.2d 1194, 39 St.Rep. 1118. Appellant's first issue for review goes to the trial court's decision not to dismiss Michael's petition following presentation of his case-in-chief at the first hearing. Her principal objections are that there was no evidence pointing to actual serious danger to the minor children during her association with M.M., and that the testimony of M.M.'s former wife concerning M.M.'s history of child sexual abuse should not have been admitted into evidence. We first consider the admissibility of the former wife's testimony. M.M. was subpoened by Michael to testify as a hostile witness, but he invoked his constitutional privilege against self-incrimination and did not answer questions concerning allegations that he had sexually abused his daughter a few years prior to the immediate case. The trial court protected him from any incriminating questions posed by Michael's attorney. After he was dismissed, however, M . M . ' s former w i f e was c a l l e d a s a w i t n e s s . She t e s t i f i e d t h a t her daughter had been removed from t h e f a m i l y home because s h e had been s e x u a l l y abused by M.M. She had never witnessed any i n c i d e n t s of abuse, b u t her husband had a d m i t t e d t h e i n c i d e n t s t o h e r . M.M. i n d i c a t e d t o h i s w i f e t h a t , f o r a t l e a s t s i x y e a r s p r i o r t o h i s admission, he had "used v a r i o u s items, h i s hands, p o k e r s , v a r i o u s i n s t r u m e n t s of t h a t s o r t t o induce her [ t h e d a u g h t e r ] i n v a r i o u s ways" on s e v e r a l o c c a s i o n s . No c r i m i n a l c h a r g e s were f i l e d a g a i n s t M.M., b u t t h e daughter was removed by a u t h o r i t i e s and underwent t r e a t m e n t f o r emotional problems connected w i t h t h e abuse. A f t e r her r e t u r n from t h e r a p y , M.M. admitted t o h i s w i f e t h a t he had s e x u a l l y molested t h e g i r l a g a i n . The d a u g h t e r was removed t o a c h i l d r e n s ' home w h e r e s h e c o n t i n u e s t o undergo therapy. According t o t h e former w i f e , M.M. is n o t allowed t o s e e t h e g i r l w i t h o u t o t h e r s p r e s e n t . H e admitted h i s problem t o c o u n s e l o r s , b u t has a p p a r e n t l y n o t committed any d e v i a n t a c t s s i n c e t h e l a s t i n c i d e n t w i t h h i s d a u g h t e r . L i n d a ' s a t t o r n e y o b j e c t e d t o t h e e n t i r e l i n e o f testimony on grounds t h a t it was based s o l e l y on p r i v i l e g e d communications between M.M. and h i s former w i f e d u r i n g t h e c o u r s e of t h e i r marriage. I n t h e a l t e r n a t i v e , c o u n s e l o b j e c t e d t o t h e testimony a s i n a d m i s s i b l e h e a r s a y . The t r i a l c o u r t o v e r u l e d t h e o b j e c t i o n . W e f i n d no e r r o r i n t h e c o u r t ' s r u l ing. The p r i v i l e g e a g a i n s t e x a m i n a t i o n c o n c e r n i n g i n t e r - s p o u s a l c o m m u n i c a t i o n s is s e t f o r t h i n S e c t i o n 26-1-802, MCA: "Spousal p r i v i l e g e . A husband c a n n o t b e examined f o r o r a g a i n s t h i s w i f e w i t h o u t h e r c o n s e n t o r a w i f e f o r o r a g a i n s t h e r h u s b a n d w i t h o u t h i s c o n s e n t ; n o r c a n e i t h e r d u r i n g t h e m a r r i a g e o r a f t e r w a r d , b e , w i t h o u t t h e c o n s e n t of t h e o t h e r , examined a s t o any communication made by one t o t h e o t h e r d u r i n g t h e m a r r i a g e ; b u t t h i s e x c e p t i o n d o e s n o t a p p l y t o a c i v i l a c t i o n o r proceeding by one a g a i n s t t h e o t h e r o r t o a c r i m i n a l a c t i o n o r p r o c e e d i n g f o r a crime committed by one a g a i n s t t h e o t h e r . " M i c h a e l a r g u e s t h a t w e h a v e g e n e r a l l y a b r o g a t e d t h i s p r i v i l e g e , c i t i n g Matter of J . H . (Mont. 1 9 8 2 ) , 640 P.2d 445, 39 St.Rep. 267. A p p e l l a n t n o t e s c o r r e c t l y , however, t h a t M a t t e r - - - o f J . H . w a s c o n c e r n e d s o l e l y w i t h t h e s p o u s a l p r i v i l e g e as it p e r t a i n s t o p a r t i e s t o an a c t i o n , and is t h e r e f o r e n o t a p p l i c a b l e t o r e v e a l i n g communications between n o n - p a r t i e s , a s is t h e s i t u a t i o n is i n t h e c a s e b e f o r e us. N e v e r t h e l e s s , w e t h i n k a p p e l l a n t i s f o c u s i n g o n a n i r r e l e v a n t a s p e c t of t h e p r i v i l e g e when a s k i n g t h i s C o u r t t o throw o u t t h e evidence. W e have p r e v i o u s l y r e c o g n i z e d t h a t t h e purpose o f t h e s p o u s a l p r i v i l e g e is t o p r o t e c t t h e s a n c t i t y of t h e m a r r i a g e and home. Matter of J . H . , s u p r a , 640 P.2d a t 447, 39 St.Rep. a t 269; S t a t e v. Taylor ( 1 9 7 3 ) , 163 Mont. 106, 119, 515 P.2d 695, 703. T h i s p r i v i l e g e , however, is s u b j e c t t o t h e maxim t h a t , when t h e r e a s o n f o r a r u l e c e a s e s t o e x i s t , s o t h e n should t h e r u l e . See S e c t i o n 1-3-201, MCA. Thus, i n M a t t e r o f J . H . , w e h e l d t h a t once a f a m i l y member h a s been s e x u a l l y abused, t h e s a n c t i t y o f t h e home and t h e r e f o r e t h e r e a s o n f o r t h e r u l e a r e s i m u l t a n e o u s l y d e s t r o y e d , 640 P.2d a t 447, 39 St.Rep. a t 269, and t h a t a mother c o u l d t e s t i f y a b o u t h e r h u s b a n d ' s s e x u a l a b u s e o f t h e i r s o n i n a c h i l d n e g l e c t p r o c e e d i n g , where t h e f a t h e r was a p a r t y t o the action. In the immediate case, the sexual abuse of M.M. 's daughter decidedly contributed to the destruction of the family home and M.M.'s marriage. Under the circumstances, we believe the privilege concerning communications about this abuse died with the marriage, and we are disinclined to invoke the privilege even though M.M. and his former wife are not parties to this custody battle. Additionally, Professor Wigmore has criticized the spousal privilege in situations involving non-parties on other grounds: "[Tlhe exclusion of a wife on the ground that her testimony may reveal his misconduct, and thus 'tend' to charge [or incriminate] him, rests on the assumption, false in fact, that her testimony on the stand would in any sense be a revelation, an unsealing of that which was secret. Nothing prevents her from revealing her knowledge out of court; in most instances she has in fact done so. It would be mere hypocrisy to sanction her silence on the stand on the pretext that the husband was thus really safeguarded from her disclosure." 8 J. Wigmore, Evidence Section 2234 (NcNaughton rev. 1961). Clearly, the subject of the supposedly privileged communications had been revealed to welfare authorities and, as it turned out later, to M.M.'s "counselor," Pastor Miller. We agree with the trial court that the testimony of M.M.'s wife was not protected by the spousal privilege under these facts. Neither the trial court nor the parties have fully explored appellant's suggestion that the testimony was inadmissible as hearsay, whether or not the spousal privilege applied. We find that the evidence would be admissible as a statement against interest, an exception to the hearsay rule. See Rule 804(b)(3), Mont.R.Evid. Hearsay testimony admitted under the enumerated subsections of Rule 804 cannot be admitted unless the declarant is "unavailable" for trial. Exemption from testifying on grounds of privilege is one form of "unavailability." Rule 804 (a) (1) , Mont.R.Evid. A witness' claim of the privilege against self-incrimination is generally regarded as a sufficient ground of unavailability to warrant reception as a statement against interest of a prior statement or communication made by him. See generally Annot., 43 ALR3d 1413 (1972). In this case, M.M.'s communications to his wife were "so far tended to subject him to . . . criminal liability . . . or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement[s] unless he believed [them] to be true." See Rule 804(b)(3), Mont.R.Evid. There being circumstantial guarantees of trustworthiness, we conclude that the communications were admissible. We next examine appellant's argument that Michael and his witnesses presented no evidence of an actual danger to the children while in the wife's custody. Indeed, there was nothing to suggest that either of the children, especially the girl Sarah, who was probably the most susceptible to harm, had ever been physically molested. Nevertheless, we recognize that child abuse presents a special problem with respect to proof of danger. Specifically, we must decide whether or not the probability of danger is great enough to give the trial court jurisdiction over the proposed modification. See Section 40-4-219(1)(c). No other appellate court has dealt with this particular problem, so we must rely solely on a reasonable construction of the existing statute and the available evidence. During the initial hearing, the trial court heard evidence concerning M.M.'s record as a sexual molester. In addition, Dr. Allison, a psychologist qualified to discuss child sexual abuse, testified concerning the causes of this deviant behavior and treatment methods. She testified that child molesters cannot be cured, but can only be controlled. In short, the molester must be carefully monitored, especially in the sensitive situation when children are present. Although Dr. Allison had not examined M.M. personally, she indicated that if a previous offender like M.M. were placed in a family environment like Linda's, the risk of reoccuring sexual abuse, especially of the young girl, would be "rather high." She reiterated this concern later in her testimony, believing that there would be a substantial risk involved in placing an admitted child molester in a family situation. She also noted that Montana does not have a comprehensive treatment program for offenders. Given the testimony described above, we cannot say that the trial court erred by not dismissing the petition after presentation of Michael's case-in-chief. There was substantial evidence before the court to suggest that a potentially serious situation existed with respect to M.M.'s association with Linda and her children. Appellant insists, however, that without proof of "actual danger ," the jurisdictional pre-requisites of Section 40-4-219(1)(c) have not been met. We find it difficult to accept this line of reasoning under these facts. Appellant is surely not maintaining that until one of the Sarsfield children is sexually assaulted, a trial court cannot consider altering the terms of an initial custody decree. Other courts interpreting statutory provisions similar to Section 40-4-219 (1 ) (c) have concluded that, even in less serious situations than sexual abuse, the potential for or probability of serious h a r i m is sufficient to invoke the trial court ' s jurisdiction to contemplate modification of a custody decree. See e.g., , ; n re Marriage of Padiak (1981), at@ 101 111.App. 3d, 427 N . E . , , 1372 (testimony by psychiatrist that child's mental, moral and emotional health was potentially endangered by custodial parent's social behavior held sufficient to justify consideration of modification). In summary, we will not interpret the provisions of the modification statute so narrowly as to prevent trial courts from assuming jurisdiction over modification petitions where substantial, credible evidence of a potential danger is presented by a petitioner during the case-in-chief. Such is the case here, and the trial judge did not abuse his discretion by failing to dismiss the complaint. With respect to the second issue for review, appellant must again point to a lack of substantial, credible evidence to warrant further consideration of the proposed modification. We conclude that, in addition to testimony presented by Michael and his witnesses at the first hearing, subsequent testimony and information brought to the attention of the court provided substantial, credible evidence of a change in circumstances so as to warrant consideration of modifying the prior decree. At the May 7th hearing, Linda testified that she knew of the allegations a b o u t M.M. n e a r l y two months b e f o r e Michael f i l e d h i s p e t i t i o n , and t h a t s h e was aware t h a t M.M. was being counseled about h i s problem by h i s m i n i s t e r , Dwayne M i l l e r . A t t h e May 28th h e a r i n g , t h e c o u r t heard t e s t i m o n y t h a t M.M. had been i n t h e p r e s e n c e of t h e S a r s f i e l d c h i l d r e n on a t l e a s t o n e o c c a s i o n i m m e d i a t e l y f o l l o w i n g t h e May 7 t h h e a r i n g , c o n t r a r y t o t h e c o u r t ' s o r d e r t h a t h e s t a y away from t h e c h i l d r e n . F i n a l l y , a t t h e J u n e 28th h e a r i n g , t h e c o u r t i n d i c a t e d t h a t it had c o n d u c t e d a n i n c a m e r a i n s p e c t i o n of t h e S.R.S. f i l e on M . M . ' s d a u g h t e r , and t h e n e n t e r e d p o r t i o n s of t h e f i l e i n t o e v i d e n c e f o r f u r t h e r c o n s i d e r a t i o n . I n a d d i t i o n , t h e c o u r t heard testimony from O l i v e S a r s f i e l d , M i c h a e l ' s mother, t h a t Linda had t h r e a t e n e d n o t t o a l l o w her t o see t h e g r a n d c h i l d r e n a g a i n i f s h e ( L i n d a ) was s u c c e s s f u l i n t h e c u s t o d y b a t t l e , and t h a t O l i v e was " i n l e a g u e w i t h t h e devil'' because of her s u p p o r t f o r M i c h a e l ' s p e t i t i o n . To c o u n t e r t h i s e v i d e n c e , a p p e l l a n t p o i n t s t o h e r s t a t e m e n t s t h a t t h e impending m a r r i a g e t o M.M. had been postponed, and e v e n t u a l l y t h a t t h e r e l a t i o n s h i p was s e v e r e d because of h e r o v e r r i d i n g i n t e r e s t i n t h e c h i l d r e n . She f u r t h e r t e s t i f i e d t h a t s h e had a s s u r a n c e s from P a s t o r Miller t h a t M.M. was "O.K.," and t h a t t h e t e s t i m o n y of M . M . ' s w i f e was m o t i v a t e d by j e a l o u s y because s h e wanted M.M. back. Linda a l s o relies on t h e remarks of P a s t o r M i l l e r , who contended t h a t M . M . ' s r e l i g i o u s c o n v e r s i o n had brought him down t h e p a t h t o s o l v i n g h i s s e x u a l problems, and t h a t a s a m i n i s t e r and a c o u n s e l o r t o M . M . , h e would n o t h a v e s a n c t i o n e d t h e impending m a r r i a g e had he n o t been convinced t h a t M . M . ' s problems had been s o l v e d . Linda a l s o d i s p u t e s t h e a l l e g a t i o n t h a t M.M. was i n t h e p r e s e n c e of h e r c h i l d r e n a f t e r t h e May 7 t h h e a r i n g , as s e v e r a l members of h e r f a m i l y t e s t i f i e d t h a t t h e c h i l d r e n were n o t i n t h e home when M.M. was t h e r e . Linda a l s o renews e a r l i e r arguments t h a t t h e c h i l d r e n were never p h y s i c a l l y harmed by M.M., and t h a t Michael, who l i v e d n e x t door f o r much of t h e t i m e of t h e h e a r i n g , was i n a p o s i t i o n t o d e a l w i t h any problems i f t h e y a r o s e . The f i n d i n g s of a t r i a l judge w i l l n o t be d i s t u r b e d on a p p e a l w h e r e t h e y a r e b a s e d on s u b s t a n t i a l t h o u g h c o n f l i c t i n g e v i d e n c e , u n l e s s t h e r e is a c l e a r preponderance of e v i d e n c e a g a i n s t such f i n d i n g s . I n re Marriage o f Schwartz (Mont. 1 9 7 9 ) , 602 P.2d 175, 176-77, 36 St.Rep. 1980, 1981. I t is n o t t h e f u n c t i o n of t h i s C o u r t t o r e s o l v e c o n f l i c t s i n t h e e v i d e n c e . Weyler v. Kaufnan ( 1 9 8 1 ) , 196 Mont. 132, 136, 638 P.2d 393, 396. The t r i a l judge h a s t h e s u p e r i o r advantage of o b s e r v i n g t h e demeanor and c r e d i b i l i t y of t h e w i t n e s s e s , Brooks v. Brooks ( 1 9 7 6 ) , 171 Mont. 132, 134, 556 P.2d 901, 902, and we w i l l n o t d i s p u t e h i s o r h e r p a r t i c u l a r r e s o l u t i o n of c o n f l i c t i n g s t a t e m e n t s u n l e s s t h e e v i d e n c e c l e a r l y p r e p o n d e r a t e s a g a i n s t t h e f i n d i n g s . Here, many of a p p e l l a n t ' s arguments i n v o l v e c o n f l i c t i n g e v i d e n c e . The t r i a l c o u r t had s u b s t a n t i a l e v i d e n c e b e f o r e it t o conclude t h a t M.M. w a s a p o t e n t i a l t h r e a t t o t h e s a f e t y o f t h e S a r s f i e l d c h i l d r e n , a n d h a d a p p a r a n t l y d e f i e d t h e c o u r t ' s May 7 t h o r d e r t o s t a y away from t h e c h i l d r e n . O b v i o u s l y , t h e t r i a l j u d g e was n o t c o n v i n c e d by t h e t e s t i m o n y of Linda, members of h e r f a m i l y , o r P a s t o r Miller (who was n o t q u a l i f i e d as a n e x p e r t on s e x u a l a b u s e ) , and we r e f u s e t o a s s i g n a d i f f e r e n t w e i g h t t o t h e i r c o l l e c t i v e t e s t i m o n y . I n summary, w e f i n d no e r r o r i n t h e t r i a l c o u r t ' s f i n d i n g s w i t h r e s p e c t t o t h e p o t e n t i a l danger r a i s e d by M . M . ' s a s s o c i a t i o n w i t h Linda and L i n d a ' s conduct once s h e knew o r had r e a s o n t o know of M . M . ' s p a s t . W e n o t e t h a t d u r i n g t h e J u n e 1 8 t h p r o c e e d i n g s , t h e r e was t e s t i m o n y t h a t M.M. had l e f t t h e community and t h e r e f o r e i n f e r e n t i a l l y posed no t h r e a t t o t h e S a r s f i e l d c h i l d r e n . N e v e r t h e l e s s , d u r i n g t h e September 28th c o l l o q u y , Michael John S a r s f i e l d i n d i c a t e d t h a t he u s u a l l y saw M.M. a t t h e same church a t t e n d e d by Linda, Michael John, and Sarah when Linda had v i s i t a t i o n r i g h t s , and t h a t Linda would speak t o M.M. a t t h a t t i m e . The c o u r t could t h u s r e a s o n a b l y conclude t h a t L i n d a ' s a s s o c i a t i o n w i t h M.M. had n o t ended, even i f t h e i r former m a r r i a g e p l a n s were i n limbo. Having concluded t h a t t h e p o t e n t i a l danger t o t h e c h i l d r e n was a s u f f i c i e n t change i n c i r c u m s t a n c e s t o j u s t i f y modifying t h e p r i o r d e c r e e , t h e t r i a l c o u r t was s t i l l bound t o c o n s i d e r t h e b e s t i n t e r e s t s of t h e c h i l d r e n b e f o r e d e c i d i n g t h a t t r a n s f e r of c u s t o d y t o Michael was mandated. A p p e l l a n t ' s t h i r d i s s u e goes t o t h e u n w i l l i n g n e s s of t h e t r i a l c o u r t t o h e a r evidence c o n c e r n i n g a l l e g a t i o n s a b o u t M i c h a e l ' s behavior b e f o r e t h e i n i t i a l d e c r e e was e n t e r e d i n 1981 and s h o r t l y t h e r e a f t e r . W e conclude t h a t t h e f a i l u r e t o a l l o w t h i s evidence i n t o t h e r e c o r d was r e v e r s i b l e e r r o r . Although t h e s o c i a l worker, Dave Evans, t e s t i f i e d t h a t M i c h a e l ' s new home l i f e was s u i t a b l e f o r r a i s i n g t h e c h i l d r e n , and a l t h o u g h Michael John i n d i c a t e d d u r i n g t h e September 28th c o l l o q u y t h a t he and S a r a h were happy l i v i n g w i t h t h e i r f a t h e r , h i s new w i f e , and t h e i r newborn c h i l d , Linda attempted to put in evidence concerning Michael's moral behavior prior to and shortly after the dissolution of their marriage. Linda did testify at the early hearing that Michael did not relate well to the children, and had "deserted" the family in 1979, but the evidentiary problem arose during the June 18th hearing when the court sustained an objection to having Linda elaborate on the question of Michael's moral conduct and fitness to raise children. We disagree with respondent that Linda's argument is a twelfth-hour attempt to convince the court that modification of the decree was unnecessary. In her answer to Michael's petition, Linda generally denied several averments made by Michael, including the ones that he could provide "a safe and stable home for the children," and that at the very least, temporary custody was "in the best interests of the children." By denying these averments, Linda put into issue Michael's fitness as a custodial parent, and her testimony on this issue should not have been summarily refused. Section 40-4-219(1) specifically contemplates that: "[tlhe court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown at the time of entry of the prior decree, that a change has occured in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child." (emphasis added) Clearly, the statute requires the trial court to consider post-decree facts, as well as pre-decree facts unknown to the trial court at the time the decree was entered, in determining both the "change in circumstances" and the "best interests" requirements. Respondent Michael argues that, because there was no issue as to Michael's fitness during c o n s i d e r a t i o n of t h e f i r s t d e c r e e , t h e t r i a l c o u r t is a u t o m a t i c a l l y precluded from probing t h a t i s s u e i n a l a t e r m o d i f i c a t i o n h e a r i n g . T h i s is i n c o n s i s t e n t w i t h a f a i r reading of t h e s t a t u t e and our d e c i s i o n i n Matter of Custody of R.L.S. (Mont. 1 9 8 1 ) , 632 P.2d 703, 38 St.Rep. 1328, wherein w e held t h a t it was r e v e r s i b l e e r r o r f o r a t r i a l c o u r t t o l i m i t evidence i n a custody d i s p u t e t o post-decree f a c t s . Whether t h e r e was no h e a r i n g p r i o r t o e n t r y of t h e i n i t i a l d e c r e e , a s i n Custody of R.L.S., o r whether t h e f i t n e s s of t h e p a r e n t s e e k i n g m o d i f i c a t i o n was n o t a t i s s u e p r i o r t o e n t r y of t h e i n i t i a l d e c r e e because t h a t p a r e n t d i d n o t c h a l l e n g e h i s s p o u s e ' s demand f o r c u s t o d y , t h e primary concern of t h e t r i a l c o u r t is still t h e w e l f a r e of t h e c h i l d . The c o u r t c a n n o t s a t i s f y t h i s c o n c e r n i f i t c o n s c i o u s l y or unconsciously a v o i d s f a c t s a b o u t t h e p a r e n t s e e k i n g m o d i f i c a t i o n t h a t took p l a c e p r i o r t o e n t r y of t h e i n i t i a l d e c r e e . C o n t r a r y t o t h e t h r u s t o f M i c h a e l ' s a r g u m e n t , L i n d a ' s t e s t i m o n y c o n c e r n i n g h i s c o n d u c t o r behavior p r i o r t o e n t r y of t h e f i r s t d e c r e e may i n v o l v e " f a c t s . . . unknown t o t h e c o u r t a t t h e t i m e of e n t r y " w i t h i n t h e scope of S e c t i o n 40-4-219, and t h i s testimony should n o t have been p r o h i b i t e d . See a l s o Boggs v. Boggs ( 1 9 7 8 ) , 65 Ill.App.3d 965, 383 N.E.2d 9; I n r e Rankin ( 1 9 6 9 ) , 76 Wash.2d 533, 458 P.2d 176. Accordingly, t h e judgment of t h e d i s t r i c t c o u r t is r e v e r s e d and t h e c a s e is remanded f o r f u r t h e r proceedings. Upon remand, t h e t r i a l c o u r t s h a l l t a k e testimony r e l a t i n g t o f a c t s o r a l l e g a t i o n s t h a t have a r i s e n s i n c e t h e p r i o r d e c r e e o r t h a t were unknown t o t h e c o u r t a t t h e t i m e of entry of that decree concerning Michael's fitness to obtain custody. The trial court shall decide whether its findings with respect to Michael's fitness, considered in conjunction with its earlier findings concerning the changes in circumstances, still warrant modification of the initial decree by placing the Sarsfield children in Michael's custody. We concur: - - . Chief Justice

October 27, 1983

d10d9552-b5e8-416d-bd96-b33e64750bf1

STATE v JACKSON

N/A

80-405

Montana

Montana Supreme Court

No. 80-405 I i J TEE SUPREME COURT O F TI-IE STATE O F MOT.JTANA 1983 THE STATE O F MONTANA, P l a i n t i f f and Appellant, -vs- ROBERT CHARLES JACKSON , Defendant and Respondent. APPEAL FROM: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , I n and f o r t h e County of G a l l a t i n , The Honorable Joseph B. Gary, Judge p r e s i d i n g . ON R E M A N D F R O M UNITED STATES SUPREME C O U R T For Appellant: Hon. Mike Greely argued, Attorney General, Xelena, Montana Sarah Power argued, A s s t . Atty. General, Helena A. I~lichael Salvagni, County Attorney, Bozeman, Montana For Respondent: Goetz & Madden; Zames Goetz argued, Rozeman, Pqontana For Amicus Curiae: Mark Connell; Baldassin, Connell & Beers, Missoula, Montana (American C i v i l L i b e r t i e s Union) -- - - - - . . - -- -- Submitted: May 31, 1983 Decided : October 21, 1983 F i l e d : OCT 2 i 1983 - . - . - - - Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This case comes to us for the second time following remand by the United States Supreme Court. This case began when defendant, Robert Charles Jackson, was cha.rged with driving a motor vehicle while under the influence of alcohol, fourth offense, a misdemeanor, in the District Court of Gallatin County. During the course of prosecution, the District Court entered an order suppressing all evidence of Jackson's refusal to submit to a breathalyzer sobriety test. On appeal, this Court affirmed the District Court in a 4-3 decision. On application by the State, the United States Supreme Court granted certiorari, reviewed our decision, and entered the following order which we quote in pertinent part: "The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Supreme Court of Montana to consider whether its judgment is based upon federal or state constitutional grounds, or both, and, if its judgment is not based upon state constitutional grounds, for further consideration in light of South Dakota v. Neville, 459 U.S. , (1983) ." The factual background of this case commenced on June 6, 1980, when Jackson was arrested by Bozeman police for driving under the influence of alcohol. At the police station, he was asked to submit to a breathalyzer test. He refused. This was recorded on videotape together with his performance of certain coordination tests. Jackson was charged with driving a motor vehicle under the influence of alcohol, fourth offense, in violation of section 61-8-401, MCA. He filed a motion in limine seeking suppression of all evidence of any license suspension resulting from tha.t refusal. The District Court granted suppression, apparently holding that part of Montana's implied consent statute permitting the admission of such evidence unconstitutional. On appeal, this Court in a split decision affirmed the District Court on the basis that such refusal was testimonial in nature and coerced; hence, admission of such evidence would violate Jackson's right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution and Article 11, Section 25, of the Montana Constitution. State v. Jackson (1981), 195 Mont. 185, 637 P.2d 1. The Montana Attornev General filed a petition for writ of certiorari seeking a review of our decision by the United States Supreme Court. Thereafter, the United States Supreme Court issued an opinion in a South Dakota case holding that the Fifth Amendment protection against self-incrimination did not prohibit admission in evidence of a person's refusal to take a blood-alcohol sobriety test in a DUI prosecution under South Dakota's implied consent statute. South Dakota v, Neville (1983), 459 U.S. , 103 S.Ct. 916, 74 L.Ed.2d 748. Finally, the United States Supreme Court vacated our judgment in the instant case and remanded it to us for further consideration as heretofore set forth. On remand, we ordered supplemental briefing and heard oral argument on May 31, 1983. Two issues are presented for our consideration: 1. Was our Jackson decision based on federal or state constitutional grounds, or both? 2. If our Jackson decision was not based on state constitutional grounds, was it overruled by South Dakota v. Neville? ' The State contends that there are no a.dequate and independent state constitutional grounds supporting this decision. Court's ~ackson/ The State argues that our Jackson opinion rests on an an.alysis of federal cases construing the Fifth Amendment protection against self-incrimination and no reasons are given in the Jackson opinion for construing Montana ' s constitutional prohibitions against self-incrimination any differently. The State points to prior decisions of this Court holding that Montana's constitutional provision against self-incrimination affords no broader protection to the accused than does the Fifth Amendment in the United States Const.itution. Jackson contends that this Court in Jackson expressly held that its decision was based on state constitutional grounds as well as federal constitutional grounds. He a.rgues that this Court in Jackson gave reasons for according greater breadth to Montana's constitutional prohibition against self-incrimination than that in the federal constitution by its ana.lysis of cases from other states. Jackson buttresses his argument by pointing out references in Jackson to state constitutional considerations. The United States Supreme Court has addressed this question on numerous prior occasions to determine its authority to review a state court decision. It is well settled that the United States Supreme Court is the ultimate authority in interpreting provisions of the United States Constitution just as the state supreme court is the ultima-te authority in interpreting the provisions of its state constitution. A problem arises when it is unclear whether a . state decision is ba.sed on the United States Constitution or the state constitution, or both. Essentially, the United States Supreme Court has ruled that unless the state court opinion is based on adequate and independent state grounds, the United States Supreme Court has jurisdiction to review it. Michigan v. Long (1983), - U.S. , 103 S.Ct. 3469, 77 L.Ed.2d 1201; South Dakota v. Neville, supra; Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; Zacchini v. Scripps-Howard Broadcasting Co. (1977) , 433 U.S. Within this basic framework, the United States Supreme Court has developed more specific guidelines. Where the state supreme court "held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of tha.t compulsion. It shou1.d be free to decide . . . these suits according to its own local law." Missouri ex rel. Southern R. Co. v. ~ayfield (1950), 340 U.S. 1, 5, 71 S.Ct. 1, 95 L.Ed. 3, cited with approval. in Zacchini v. Scripps-Howard Broadcasting Co., supra. If the state court "felt compelled by what it understood to be federal constitutional considerations to construe . . . its own 1a.w in the manner it did," then the United States Supreme Court will not treat a normally a-dequate state ground as independent and its jurisdiction is clear. Delaware v. Prouse, 440 U.S. at 653. The essence of the principle applicable to resolution of the issue has recently (July 6, 1983) been summarized in this manner: ". . . Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal Law required it to do so. If a, state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. . ." Michigan v. Long, 103 S.Ct. at 3476, 77 L.Ed.2d at 1214. Our original Jackson decision contained statements that to admit evidence of refusal to submit to a breatha-lyzer sobriety test would violate the Fifth Amendment privilege against self-incrimination and Montana's privilege against self-incrimination guaranteed by Article 11, Section 25 of the Montana Constitution. The opinion indicates that the basis of that ruling was that such refusal is testimonial in nature and coerced, thus falling within the ambit of protection against self-incrimination. As we read the Jackson opinion, tha.t conclusion is reached primarily by an analysis of federal cases interpreting the Fifth Amendment protection against self-incrimination. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, is distinguished on the basis that a blood sample is real, physical evidence of a nontestimonial nature beyond Fifth Amendment protection. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 ~ . ~ d . 2 d 91, was cited for the proposition that a person's refusal to take a sobriety test is an overt communication of that person's thoughts, compelled by the police, from which it was reasoned that it was protected against self-incrimination by the Fifth Amendment; a statement follows that under our constitution, the privilege against self-incrimination of an accused person's thoughts, whether by acts or words spoken, and the fact it does not extend its protection to forbid the compulsory exhibition of physical characteristics does not nullify the protection it does provide; Hoffman v. United States (1951), 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, and Murphy v. Waterfront Comm'n (1964), 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, were cited as support for a liberal construction of the Fifth Amendment in favor of the accused followed by a statement that we must also liberally construe Article 11, Section 25, of the Montana Constitution. A number of state decisions are cited as examples of state rulings that the admission of evidence of a refusal to take a sobriety test violates the privilege against self-incrimination. Of the state cases cited, four are based on interpretation of the Fifth Amendment to the United States Constitution, one is based on both federal and state constitutions, and two are based exclusively on their own state constitutions (State v. Andrews (Minn. 1973), 212 N.W.2d 863, and Application of Baggett (Okla. 1974), 531 P.2d 1011). No reasons are given in Jackson why we should interpret our own constitution the same as Minnesota and Oklahoma interpreted theirs, nor does the opinion contain any analysis or reason for extending the scope of Montana's constitutional protection against self-incrimination beyond that afforded by its Fifth Amendment counterpart in the federal constitution. The Jackson opinion ignores prior rulings by this Court that the Montana constitutional guarantee of the privilege against self-incrimination affords no broader protection to an accused than does the Fifth Amendment (State v. Armstrong (1976), 170 Mont. 256, 552 P.2d 616) and that the opinion of the United States Supreme Court delineates the maximum breadth of the privilege against self-incrimination in Monta.na (State v. in ley (19771, 173 Mont. 162, 566 P.2d 1119). In sum, we read the Jackson opinion as based primarily on United States Supreme Court decisions interpreting the Fifth Amendment to the United States Constitution. Any reference to the state constitution is not independent of the federal constitutional decisions interpreting the Fifth Amendment. No reasons are given nor an analysis made for extending our state constitutional protections against self-incrimination beyond that afforded by its federal counterpart. The following language of the United States Supreme Court in a Michigan case is equally applicable to our Jackson opinion: ". . . The references to the state constitution in no way indicate that the decision below rested on grounds in any way independent from the state court ' s interpretation of federal law. Even if we accept tha.t the Michigan constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fa.irly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law." Michigan v. Long, 103 S.Ct. at 3477, 77 L.Ed.2d at 1216. We now reconsider our Jackson decision in the light of South Dakota v. Neville, supra. In that case ~eville was stopped by two Madison, South Dakota, police officers after they saw him fail to stop at a stop sign. The officers asked him for his driver's license and asked him to get out of the car. As Neville left the car, he staggered and fell against the car to support himself. The officers smelled alcohol on his breath. Neville did not have a driver's license and informed the officers that it was revoked after a previous driving-while-intoxicated conviction. The officers asked him to touch his finger to his nose and to walk a straight line. When Neville failed these field sobriety tests, he was placed under arrest and read his Miranda rights. He a.cknowledged that he understood these rights and agreed to talk without a lawyer present. Reading from a printed card, the officers then asked Neville to submit to a blood-alcohol test and warned him that he could 1-ose his license if he refused. Neville refused to take the test stating, "I'm too drunk, I won't pass the test." The officers again read the request to submit to a test and then took Neville to the police station, where they read the request to submit a third time. Neville continued to refuse to take the test, again saying he was too drunk to pass it. South Dakota law provides that refusal to submit to a blood-alcohol test "may be admissible into evidence at the trial." Another South Dakota statute specifically provides that evidence of refusal to submit to a chemical analysis of blood, urine, breath or other bodily substance "is admissible into evidence" at a trial for driving under the influence of alcohol and tha.t a person "may not claim privilege against self-incrimination with regard to admission of refusal to submit to chemical analysis." The trial court granted suppression for three reasons: (1) the South Dakota statute allowing evidence of refusal violated Neville's federal constitutional rights; (2) the officers failed to advise Neville that the refusal could be used against him at the trial; and, (3) the refusal was irrelevant to the issue at the trial. The South Dakota Supreme Court affirmed the suppression on the ground that the statute allowing introduction in evidence of the refusal violated the federal and state privilege against self-incrimination. The South Dakota Supreme Court reasoned that the refusal was a communicative act involving Neville's testimonial capacities and that the state compelled this communication by forcing Neville "to choose between submitting to a perhaps unpleasant examination and producing testimonial evidence against himself." State v. Neville (S.D. 1981), 312 N.W.2d 723, 726. The United States Supreme Court granted certiorari and upon review reversed the judgment of the South Dakota Supreme Court. The United States Supreme Court held that the admission in evidence of a defendant's refusal to submit to a blood-alcohol test did not offend his Fifth Amendment right against self-incrimination. The Court reasoned that a refusal to take such a test after a police officer has lawfully requested it is not an act coerced by the officer and thus is not protected by the privilege against self-incrimination. The Court reasoned that the offer of taking the test is clearly legitimate and becomes no less legitimate when the state offers a second option of refusing the test with the attendant penalties for making that choice. The United States Supreme Court went on to hold that it was not fundamentally unfair or in violation of due process to use Nevil-lets refusal to take the blood-alcohol test as evidence of guilt, even though the police failed to warn him that the refusal could be used against him at the trial. The court held that such failure to warn was not the sort of implicit promise to forego use of evidence that would unfairly "trick" Neville if the evidence were later offered against him at the trial. Montana's implied consent law provides in pertinent part that any person who operates a motor vehicle on the public highways shall be deemed to have given his consent to a chemical test of his blood, breath or urine if arrested by an officer for driving a motor vehicle while under the influence of intoxicating liquor. Section 61-8-402(1), MCA. The statute further provides that if he refuses, no test shall be given but that his driver's license shall be suspended for sixty days under certain circumstances. Section 61-8-402 ( 3 ) , MCA. The implied consent law also provides that proof of refusal to submit to the test is admissible in evidence upon his tria.1 for DUI. Section 61-8-404, MCA. In the instant case, Jackson is alleged to have refused to submit to a breathalyzer sobriety test. The United States Supreme Court has clearly held that the admission in evidence of a defendant's refusal to submit to a blood-alcohol test in a DUI prosecution does not violate the defendant's Fifth Amendment right against self-incrimination. Since Montana's implied consent law covers a breath test as well as a blood-alcohol test, as does South Dakota's, the Neville case is squarely applicable to Jackson and compels reversal of the District Court's suppression of evidence of refusal on Fifth Amendment grounds. The Neville decision likewise forecloses defendant's claim that the Montana statute offends Jackson's right against self-incrimination under Montana's Constitution, Article 11, Section 25. The Fifth Amendment to the United States Constitution provides, " [nlo person . . . shall be compelled in any criminal case to be a witness against himself . . ." while its counterpart in the Montana Constitution provides, "[nlo person shall be compelled to testify against himself in any criminal proceeding." The language used in the two constitutions is substantially identical and affords no basis for interpreting Montana's prohibition against self-incrimination more broadly than its federal counterpart. Nor do we find any indication in the proceedings of Montana's Constitutional Convention that would indicate that the framers intended to grant any broader protection thereunder than that contained in the Fifth Amendment to the United States Constitution. Moreover, this Court has expressly held to the contrary. "The Montana constitutional guaranty affords no greater protection than that of the Federal constitution." State v. Armstrong, supra, 552 P.2d at 619. A year later we relied on this statement in Armstronq and further held, "[tlhe opinions of the United States Supreme Court, therefore, delineate the maximum breadth of the privilege against self-incrimination in Montana." State v. Finley, supra, 566 P.2d at 1121. Accordingly, we hold that the Montana constitutional prohibition against self-incrimination is not offended by the admission in evidence of defendant's refusal to submit to a breathalyzer sobriety test pursuant to section 61-8-404, MCA. wedo notreach the question of whether evidence of defendant's license suspension is admissible. Although that issue was included in defendant's motion in limine, it was neither briefed nor argued in the District Court nor in this Court on appeal. The order of the District Court suppressing evidence of Jackson's refusal to submit to a breathalyzer sobriety test is reversed. This cause is remanded to the District Court of Gallatin County for further proceedings. We concur: Justices Mr. Justice Frank B. Morrison, Jr. specially concurring. I concur in the result. Originally my vote was to find the subject statute unconstitutional as a violation of Jackson's right against self-incrimination. At that time my vote was not based upon independent State grounds but rather upon my own interpretation of the Fifth Amendment to the United States Constitution and Article 11, Section 25 of the Montana Constitution. Furthermore, I tried to determine what the United States Supreme Court would do when confronted with the question. My feeling is that where language in the Montana State Constitution is identical to language in the United States Constitution, we should feel bound by determinations made by the United States Supreme Court in interpreting that Language. Therefore, though I disagree with the decision of the United States Supreme Court, my vote is to follow their interpretation. Mr. Justice John C. Sheehy, dissenting: I dissent. In our original opinion in this case, we had examined the rights guaranteed our citizens under state constitutional principles, in the light of federal constitutional decisions. Now the United States Supreme Court has interjected itself, commanding us in effect to withdraw the constitutional rights which we felt we should extend to our state citizens back to the limits proscribed by the federal decisions. Effectively, the United States Supreme Court has intruded upon the rights of the judiciary of this sovereign state. Instead of knuckling under to this unjustified expansion of federal judicial power into the perimeters of our state power, we should show our judicial displeasure by insisting that in Montana, this sovereign state can interpret its constitution to guarantee rights to its citizens greater than those guaranteed by the federal constitution. I agree with Justice Stevens, who dissented in Michigan v. Long (Decid.ed July 6, 1983) No. 82-256, U.S. We can pa.ra.phrase what his majority has done to Montana by quoting from his dissent: "In this case the State of [Montana] has arrested one of its citizens and the [Montana] Supreme Court has decided to turn him loose. The respondent is a United States citizen as well as a [Manta-na] citizen, but since there is no claim that he has been mistreated by the State of [Montana], the final outcome of the state processes offended no federal interest whatever. [Montana] simply provided greater protection to one of its citizens than some other State might provide or, indeed, than this Court might require throughout the country." Slip opinion at 4. What Justice Stevens is saying, and I am glad to echo, is that the United States Supreme Court has no business contravening the final decisions of a state judiciary where no federal right guaranteed to all citizens has heen offended. Constitutional rights are guaranteed to persons, not states. Here the State has complained to the United States Supreme Court because its own state judiciary has protected the constitutional rights of one of its citizens, and extended those rights beyond what the State perceives as the federal limits. It has always been the rule that the states could extend federal constitutional rights past the boundaries of the federal limitations as defined by the federal judiciary, but could not delimit such constitutional rights to a lesser degree than would be permitted under federal rules. In other words, the United States Supreme Court historically has intervened to make sure that persons who seek to vindicate federal rights have been fairly heard. Historically, as Justice Stevens pointed out, the United States Supreme Court reviewed the findings of fact of a state court, only "where a federal right has been denied." Slip opinion at 5. No federal rights of a citizen were denied in our original opinion in this case. The general public may have a perception that courts operate in a degree of permanency, interpreting constitutions and laws unchangingly. That perception is most misleading. The shades of opinion and the quality of a court's interpretations are transient, depending in large measure upon the changing personnel making up the court, and the ability of its members to withstand the tides of public opinion. The most illustrative example of this transiency is the United States Supreme Court itself. Its vagaries of opinions in the fields of civil rights, human rights, education, and the rights of states in the past 20 years must be astounding to anv student of judicial history. The result of the decision in Michigan v. Long will be, as Justice Stevens said, a swelling increase in the number of cases the United States Supreme Court will be called on to interpret, where states complain that their own judiciaries have granted greater rights than the federal decisions have allowed. The great likelihood is that the United States Supreme Court must in the future reverse its position and adopt a stance that adequate state grounds for its decision are independent of federal grounds unless it clearly appears from the state's opinion otherwise. We should at least attempt to force the United States Supreme Court to come to that proper stance. If a majority of this Court had the will to press the issue, we cou1.d put the question to the United States Supreme Court four-square, that this State judiciary has the right to interpret its constitution in the light of federal decisions, and to go beyond the federal decisions in granting and preserving rights to its citizens under its state constitution. That is the route I would take in this case. Justice Mr. Justice Daniel J. Shea, dissenting: I join in Justice Sheehy's dissent and add my own dissent to the decision of the majority to undo what we declared the law to be in State v. Jackson (1981) , 195 Mont. (In this dissent, I refer to our 1981 Jackson decision as Jackson - I and to the present decision a . s Jackson - 11.) I dissent not because I believe opinions I have authored are cast in granite, but because the majority here has ignored the full import of our decision in Jackson - I, the import of which they fully recognized in their dissent. We held that not only were the defendant's constitutional rights violated under the Fifth Amendment to the United States Constitution, but also and as an independent ground, [that defendant's rights were violated under the self-incrimination of Art. 11, § 25 of our own state constitution.] In the guise of compliance with the mandate of the United States Supreme Court's order of remand vacating our judgment, the majority has simply rewritten Jackson to comport with its own views as to interpreting our state constitution. In doing so, the majority has delegated to the United States Supreme Court our duty to interpret our constitution. This constitutes an abdication of our duty to interpret our own constitution. Before launching into the body of my dissent, I detour here to comment on the current trends to crack down on drunk driving. Those trends are laudable and every effort to do so is a step in the right direction--provided that no constitutional rights are violated in the process. In South Dakota v. Neville (1983), - U.S. , 103 S.Ct. 916, 74 L.Ed.2d 748, the United States Supreme Court referred. to the carnage of our highways as a result of drunk driving. No one can deny the tragic statistics relating to drinking and driving. However, the criminal law does not have to be enforced in such a manner as to ca.use a. head-on confrontation with either the Fifth Amendment or Art. 11, 5 25 of our own constitution. Driving is a privilege, and tha.t privilege can be revoked. I see nothing unconstitutional in a law providing that if a driver (on reasonable probable cause) is asked by a law officer to give a blood alcohol sample or a breath sample and refuses to do so, his license can be suspended. The refusal can be the triggering event for suspension. However, if the State chose, it could still proceed against the defendant on a charge of driving while intoxicated. In the criminal proceeding, however, the State should not be able to use the defend.ant1s refusal against him as a tacit admission that his refusal was based on his belief that he could not pass the test. That, in my judgment, violates at least Art. 11, 5 25 of our own constitution, and. that is what I thought we held in Jackson - I. As the author of Jackson - I, I clearly made a mistake, for I did not recognize the extent to which the United States Supreme Court stood ready to intrude on the judicial affairs of this state in interpreting our own constitution. However, the remand order failed to analyze our decision, for to have done so would have been to recognize that we did indeed rely on Art. 11, 5 25, as an independent ground of decision. Instead, the Supreme Court remanded the case to this Court to determine whether our decision "was based upon federal or state constitutional grounds, or both,. . ." (Emphasis added. ) A reading of our decision should have told an objective United States Supreme Court that our decision was based on both and tha.t a decision based on our own - - constitution was sufficient for that Court to deny certiorari. In his dissent from the majority's remand order, however, Justice Stevens did take the time to analyze this Court's decision in Jackson - I, and he was eminently satisfied that we clearly based our decision on an independent state ground by relying on Art. 11, S 25 of our own constituti-on. I quote Justice Steven's dissent in full so that the reader can make his or her own determination of whether this Court reached its decision on an independent sta.te ground. "Justice Stevens, dissenting. "In its opinion explaining its holding that the defendant's refusal to submit to a breathalizer sobriety test is inadmissible, the majority of the Supreme Court of Montana stated, in part: "'We hold that such refusal is testimonial in nature and that to admit evidence of the fact of refusal would violate the defendant's Fifth Amendment privilege as guaranteed by the United States Constitution, and would further violate defendant's privilege as guaranteed by Art. 11, S 25 of the Montana Constitution. ' App. to Pet. for Cert. A-2. "After analyzing the federal constitutional question in the light of this Court's opinion in Schmerber - v. Californ-ia, 384 U.S. 757, the court continued: "'The issue is also controlled by Art. 11, S 25 of our own constitution, which provides that "no person shall be compelled to testify against himself in a criminal proceeding." The issue involves a communication that is testimonial in nature, and we must resolve the issue by applying Art. 11, S 25. Clearly, to permit evidence of defendantt s refusal to take the breathalyzer test would violate not only the United States Constitution, but also our own constitution.' " 'In State v. Finley (1977) , 173 Mont. 162, 566 P.2d 1119, we held that a defendant's privilege against self-incrimination was not violated by admitting into evidence a videotape recording of his post-arrest words and actions. We decided that the tape had not been introduced for the incriminating content of the words uttered by the defendant, but rather for the purpose of aiding the jury in understanding the testimony of the witnesses who had observed the defendant's unsteady walk and his slurred speech after his arrest. We specifically noted that the videotape did not contain incriminating responses to interrogation by the police. But the same situation does not exist here. It is obvious that defendant's refusal is inherently self-incriminating because it carries a strong inference of guilt--the prosecutor would surely argue that defendant's refusal to take the test was prompted only by his knowledge that the test results would reveal his intoxication, and therefore incriminate him.' "'We hold under our own constitution, that if a communication of refusal, whether written, verbal, or otherwise, involves the defendant's consciousness of the facts and the operation of his mind in expressing it, the communication is testimonial in nature. A defendant's silence or negative reply to an officer's request which calls for an immediate reply is clearly an overt communication of the defendant's thoughts in response to the request. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. It is the act of refusal that is pertinent and suggestive of guilt, rather than the way in which it is communicated. Under our constitution, the privilege against self-incrimination forbids any compulsory communica.tion of an accused person ' s thoughts, whether by acts or words spoken, and the fact that it does not extend its protection to forbid the compulsory exhibition of physical characteristics does not nullify the protection it does provide.' App. to Pet. for Cert. A-8-A-LO. "Consistent with the views I expressed in dissent + in South Dakota v. Neville, U.S. - 1 - (1983) , I believe t h e statementr~ have quoted are sufficient to demonstrate that the judgment of the Montana Supreme Court rests on an adequate and independent state ground and that this Court is therefore without jurisdiction to vacate its judgment. I therefore respectfully dissent." In unfortunate statements in two previous cases this Court declared that the Montana constitutional provision against self-incrimination would march lock-step with interpretation given to the Fifth Amendment clause of the United States Constitution. State v. Finley (1977), 173 Mont. 162, 566 P.2d 1119; State v. Armstrong (1976), 170 Mont. 256, 552 P.2d 616. Although the ma.jority in Jackson I1 - now again rely on these sta.tements, they recognized full well in dissenting to Jackson - I that the intent of the majority was to give greater protection in Montana than what the federal constitution provided. The dissent states in part: ". . . It [the majority holding] extends the breadth of Montana's constitutional provision beyond that afforded by the United States Constitution and overrules sub silento this Court's own interpretation of Montana's own interpretation of ~ontana' s privilege against self-incrimination [obviously referring to the statements in Armstronq and Finley that Montana's constitutional provision against self-incrimination had only the meaning that the United States Supreme Court chose to give to it.]" 195 Mont. at 196, 637 P.2d at 7. There, the dissenters recognized tha.t Armstrong and Finley had been overruled to the extent that we would let the United States Supreme Court interpret Art. 11, S 25 of our own constitution for us. But the present majority in Jackson 11, now sings a different tune. They conclude, without alluding to their own admissions in Jackson - I, our constitutional provision against self-incrimination must derive its sole meaning from decisions of the United States Supreme Court interpreting the Fifth Amendment. Before I became a member of this Court and since I have been a member of this Court, I have been constantly bothered by the inconsistency of this Court in its decisions, but particularly so in the administration of the criminal law where even more consistency is required because of the underlying life and liberty considerations involved with each case. The majority opinion here demonstrates once again this inconsistency and our unstated policy to treat each criminal appeal on an ad hoc basis. This unstated policy undermines the integrity of the appellate process and as a matter of judicial policy is just plain dangerous. This result could not have been reached--in this case--if the United States Supreme Court had not arrogated to itself the powers that should, in our federal system, belong only to the states. I once again state that I agree with the concerns of Justice Sheehy in his dissent, for his concerns are real. The danger of this intrusionary policy is fully exemplified by the arrogance of a concurring opinion in Florida v. Casal (Fla.S.Ct., June 17, 1983), No. 81-2318, slip op. There the United States Supreme Court let stand a decision of the Florida Supreme Court that appeared to have relied on a sta.te constitutional provision and state statute in reaching its decision. But the Chief Justice of the United States Supreme Court did not agree with the decision of the Florida. Supreme Court and suggested that the United States Supreme Court was the sole repository of judicial wisdom and rationality. In the final paragraph of this con.curring opinion, the Chief Justice expressed an attitude that fully reflects the judicial power that he would arrogate for the United States Supreme Court: "With our dual system of state and federal laws, administered by parallel state and federal courts, different standards may arise in different areas. But when state courts interpret state law to require more than the Federal Constitution requires, the citizens of the state must be aware that they have the power to amend state law to ensure rational law enforcement. The people of Florida have now done so with respect to Art. 1, 5 12 of the State Constitution; they have it within their power to do so with respect to Florida Statute 5 327.56 [the statute involved that was interpreted by the Florida Supreme Court contrary to what the Chief Justice believed its interpretation should be. I . " Florida v. casal? supra, at 3 (Burger, J., concurring) (Emphasis added. ) This philosophy appears to have permeated a majority of the members of that Court and I suggest that this philosophy is what led to the remand in this case. The Chief Justice would have state governments amend state constitutions and statutes to march lock-step with the judicial pronouncements of the United States Supreme Court. It appears that this philosophy is contagious. The majority here has declared that Art. 11, S 25, of our own constitution has only the meaning that the United States Supreme Court chooses to give it. I suggest that the provisions of our own constitution do have meaning independent of the interpretations given to the United States Constitution, and that so long as we do not deny rights guara.nteed by the United States Constitution, we can and should, where the situation arises, interpret our own constitution to give more rights than those granted by the United States Constitution. But the majority has abdicated that responsibility by holding that provisions of our constitution "substantially identical" (whatever that means) with provisions of the United States Constitution can get their meaning only from the United States Supreme Court. It seems the majority has adopted the philosophy suggested by Chief Justice Burger in Florida v. ~asal? and would permit the United States Supreme Court to tell us what our state constitution means. Based on these considerations, I would reaffirm our opinion in Jackson - I, an opinion that not only attempted to interpret the United States Constitution, but also relied on a state ground in affirming the trial court's order. A

October 21, 1983

cc79bf61-a351-4f6e-8e57-1e4928801480

BOSSARD v SULLIVAN

N/A

83-119

Montana

Montana Supreme Court

No. 8 3 - 1 1 9 I N 'l'HE SUPREME COURT OF THE STATE OF MONTANA 1983 RICHARD C. BOSSARD, FLOYD BOSSARD, JAMES T. MADDUX, and DAVID P. JACOBSOFJ, P l a i n t i t f s and R e s p o n d e n t s , ZAME K. SULLIVAN, D e f e n d a n t and Appellant. APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of M i s s o u l a , T h e H o n o r a b l e john S . H e n s o n r Judge presiding. C o u n s e l of R e c o r d : For A p p e l l a n t : B o o n e , K a r l b e r g & I l a d d o n , M i s s o u l a , M o n t a n a For R e s p o n d e n t : Worden, T h a n e & H a i n e s ; R o b e r t J. P h i l l i p s , M i s s o u l a , M o n t a n a S u b m i t t e d on B r i e f s : June 1 6 , 1 9 8 3 D e c i d e d : O c t o b e r 2 7 , 1 9 8 3 Filed: oci .:i iY&i C l e r k Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Zane Sullivan (Sullivan) appeals an order of the Missoula County District Court granting summary judgment to the plaintiffs, Richard C. Bossard, et al. (Rossard) . Bossard filed the action to compel Sullivan to pay an equal amount on a $120,000 promissory note. All the parties had signed personal guaranties, but Sullivan revoked his guaranty before payment of the principal was due. Bossard and the other stockholders paid part of the interest and principal when it came due. The trial court found that Sullivan's revocation could not affect his guaranty on the original note. The trial court declined to listen to evidence, and granted summary judgment to Bossard. Sullivan claims that inequality among the parties, modification of the terms of the note, and his revocation, excuse payment. Sullivan claims that because the parties were in unequal positions regarding stock ownership, he should not be required to contribute equally. Sullivan also appeals the award of Bossard's attorney fees. We vacate the summary judgment and remand for further proceedings to determine if the doctrine of equality applies. The award of attorney fees is reversed. On May 2, 1979, the Title Company of Billings executed a note to the Montana Bank of Billings. The note was for $120,000, annual interest at 13 percent. Interest was payable monthly, and the principal due on demand or on May 1, 1980. The same day, Sullivan and plaintiffs Bossard, et al. , signed guaranties of the note. The guaranty was a continuing one, and provided that no extension of time for payment, nor renewal would affect the quarantor's liability. Liability was in effect until the Rank received written notice of revocation. A guarantor's revocation did not affect liability for any obligation or renewal created before revocation. The original note was renewed on May 1, 1980, and due on demand or on May 1, 1981. The renewal was for $121,000 at a higher rate of interest. Sullivan did not participate in the renewal and did not sign the second renewal note. One month before the renewed note was due, Sullivan revoked in writing his guaranty. When the second renewal note came due on May 1, 1981, the title company was insolvent. Bossard and the others negotiated with Montana Bank of Billings to defer their payment, and on May 7, 1981, they paid $30,000 toward the principal and interest. On the same day they signed a third note for approximately $92,000, the balance on the renewal note. Sullivan did not participate in the negotiations, and refused to make any payment. On May 21, 1981, Bossard and the others demanded that Sullivan contribute; when he refused, they brought suit. Sullivan argues that receipt of unequal benefits from a common obligation destroys the general rule of equal contribution. All the parties except Sullivan were stockholders in the title company. Sullivan alleges he had been promised stock in the company in exchange for setting up the corporation, hut Bossard and the others failed to complete their promise. Contribution among co-obligors is an equitable concept, and an equitable defense of one obligor must be permitted to be raised and presented. The trial court refused to consider the doctrine of equality, and refused to hear evidence on the issue of the inequality of the parties' ownership of stock in the corporation, and granted summary judgment to Bossard. The principle of unequal benefits affecting equal liability is illustrated b l 7 a Montana. ca.se, In Re Daily's Estate (1945), 117 Mont. 194, 159 P.2d 327. In Daily, the court held that a husband and wife, both deceased, were joint obligors on two promissory notes. The court held that without proof to the contrary, the presumption is that joint obligors benefited equally from a common debt and the obligors equally liable. The Daily's respective estates were held to be equally liable. Following this analysis, if one joint obligor offers proof that he did not receive equal benefits, th.a.t obligor is not required to equally contribute. The California courts have held that the right to contribution is based in equity and is separate from the contract to the creditor. Blankenhorn-Hunter-Dulin Co. v. Thayer (CA 1926) , 247 P. 1088, involved marginal traders and persons who had paid for their stock in full. The brokerage became insolvent, and the trustee in bankruptcy claimed that the Blankenhorn-Hunter-Dulin Co., which had paid in full for its stock, should contribute rata.bly with the margin purchasers to discharge the brokerage's debt. But the California Supreme Court held that since the right of contribution rested on equity and principles of natural justice, it was not equitable for parties in unequal positions to be equally liable for payment of a debt. In the present case, Sullivan raises the issue of equality of benefits, and was prepared to offer proof to the contrary. Only a trial could resolve this issue. If this were an action by the bank, our decision would be different. Between the primary creditor and a co-obligor, the guaranty binds the obligor. Had the bank acted against Sullivan, he would be liable on the note, and could, in turn, seek reimbursement from his co-obligors. However, in this case, the action is among the co-obligors, one of whom alleges he did not receive an equal benefit from the common obligation. We also reverse on the issue of attorney fees. The trial court granted Bossard and the other stockholders their attorney fees and costs. We find no authority for this award and the trial court did not give any reasoning. Absent statutory authority, or an agreement among the parties, Bossard should not have been granted attorney fees. Reversed and remanded for further proceedings in accordance with this opinion. We Concur:

October 27, 1983

f31d1562-4b64-48ed-9301-51955c24a48f

Niewoehner v. WESTERN LIFE INSURANCE COMPANY

422 P.2d 644

11091

Montana

Montana Supreme Court

422 P.2d 644 (1967) George Roy NIEWOEHNER, Dirk Niewoehner et al., Plaintiffs and Respondents, v. WESTERN LIFE INSURANCE COMPANY, A Minnesota Corporation, Defendant and Appellant. No. 11091. Supreme Court of Montana. January 20, 1967. *645 Weir, Gough, Booth &amp; Johnson, Edwin S. Booth and Cordell Johnson, Helena, for appellant. Hubert J. Massman, Helena, for respondents. L.C. GULBRANDSON, District Judge, sitting in place of DOYLE, Justice. This is an appeal by the defendant, Western Life Insurance Company, a corporation, from a judgment entered for the plaintiffs by the Fourteenth Judicial District in and for the County of Meagher. Plaintiffs are the named beneficiaries of life insurance policy No. 92980, issued by the defendant, and insuring the life of George Edward Niewoehner in the face amount of $5,500.00, dated September 12, 1939. The case was tried by the district court sitting without a jury upon an agreed statement of facts, and upon testimony and exhibits, after defendant's motion for a summary judgment was denied. The issue before the district court and presented upon appeal is; Was the accidental *646 death benefit provision of the policy in effect on August 4, 1963, the date of the accidental death of the insured? The policy, folded, contains the following information on its cover: The first page of the unfolded policy itself contains, in somewhat more detail, the salient facts concerning the policy that are contained on the cover of the folded policy. The first page sets forth that the premium payments can be paid monthly at the rate of $16.92 per month, for twenty years or until prior death of the insured. At the bottom of this page the effective date of September 12, 1939, is set forth. Below the signature the policy states that it is an Endowment at Age 60, premiums payable for 20 years, Waiver of Premium, Double Indemnity. The italicized portions above appear as red typing or stamping on the policy. The detailed and specific policy provisions begin on page two of the policy. The subject of each paragraph is stated in the left-hand margin, under separate numbers for each paragraph. The first paragraph of page two states that the policy contains the entire contract. The second paragraph of page two states that the policy shall be incontestable, after being in force two years from its date of issue during the lifetime of insured, except (a) for failure to pay premiums and (b) as to the provisions and conditions, if any, relating to benefits in the event of total and permanent disability and those granting additional insurance in the event of death resulting from injury through accidental means. The Accidental Death Benefit "rider" which forms a portion of this contract provides, in its first paragraph, as follows: "If, during the premium paying period of this Policy, and while this Policy is in full force and effect, the death of the Insured shall result, from accidental causes, as defined in this benefit, the Company will pay in addition to other Death Benefits an amount equal to the Face Amount of this Policy." The fifth paragraph of the Accidental Death Benefit provides in part, as follows: "This Benefit shall be automatically cancelled and the premium therefor will no longer be payable when and if * * * (d) This Policy * * * becomes paid-up for its Face Amount." The seventh paragraph of the Accidental Death Benefit states: "When this Benefit is cancelled or otherwise terminated, the annual premium under this policy will be reduced $11.00, which is the premium charged for this Benefit and which amount is included in the premium stated in this policy." The policy became a paid-up policy at the end of the twenty-year premium paying period on September 12, 1959. Upon receipt of the final premium, the defendant issued a paid-up policy certificate stating: "This is to certify that all premiums due and payable on policy No. 92980 on the Life of George Edward Niewoehner have been *647 paid and such Policy is hereby declared Paid-up in accordance with the terms thereof." The defendant paid the face amount of the policy, plus paid-up additions, to the beneficiaries but refused payment of the Accidental Death Benefit on the grounds that the coverage was not in effect on the date of death, August 4, 1963. Plaintiff offered four exhibits which were received in evidence as follows: Plaintiff's Exhibit No. 1: Premium deposit fund record. Plaintiff's Exhibit No. 2: Loan record showing that the insured borrowed money on the policy after the "Paid-up Policy Certificate" was issued. Plaintiff's Exhibit No. 3: Receipt for $226.38 as "annual premium due September 12, 1960." This exhibit also contained the statement, "This is not a premium receipt." Plaintiff's Exhibit No. 4: Certified copy of page A-12 of the rate manual, 1963 edition, of the defendant Life Insurance Company, which exhibit indicates that the defendant Company, by 1963, had changed the language of the Accidental Death Benefit riders, then being issued, to provide coverage to the anniversary date of the policy nearest the insured's 65th birthday. Exhibit number 2 indicates that the amount referred to in exhibit number 3 was in fact interest on the loan, and the policy itself bears a stamped and written statement that the loan was paid in full on August 9, 1961. The court made Findings of Fact which included the following: "6. The provisions of the policy are ambiguous, uncertain, vague and evasive in the following instances: "(a) The cover and first page of the policy contain stamped purple-ink notations stating that the policy provides for `Waiver of Premium' and `Double Indemnity'; However, the insurer has attempted to limit coverage, exclude coverage, and cancel coverage resulting from accidental death by numerous Provisions appearing on the unnumbered ninth page of the policy. "(b) The policy provision relating to Double Indemnity purports to be limited to the `premium-paying period,' a period of uncertain duration, and a term describing the period during which the policy is maintained, without adding any limitation not otherwise existing. "(c) The face of the policy sets forth the premium as a single amount in contradiction to the unnumbered pages 8 and 9 of the policy, which purports to provide separate monthly premiums for the Waiver of Premium and Double Indemnity provisions of the policy. "(d) The provisions of the policy are not set forth with simplicity and clarity of expression. "(e) The defendant insurer's agent identified monies received from the insured as `annual premium' at a time when the insured claims no premium was due on the policy. "(f) The policy contains contradictory language and provisions referred to applicability of Waiver of Premium benefits and Accidental Death Benefits." The court then filed Conclusions of Law: "1. That the plaintiff beneficiaries under policy No. 92980 are entitled to double indemnity benefits for accidental death of the insured. "2. The amount of said benefits is the sum of $5,500.00 plus interest on said sum in the amount of 6 per cent per annum from and after the date of death until said sum is paid. "3. That said benefits are due to the plaintiff beneficiaries because of: "(a) The presence of vague, evasive, uncertain and ambiguous language existing in the policy. "(b) The fact that `premium paying period' is a descriptive and not limiting policy provision. "(c) The fact that the premium was represented to the insured on the face of *648 the policy as a single amount and is therefore not severable. "(d) The fact that the policy provisions were not set forth with simplicity and clarity of expression, despite the fact that it was within the power, and was the duty of the defendant insurer to do so. "(e) The fact that the defendant insurer, through its agent, identified monies received from the insured after the paid-up policy certificate had been issued, as `annual premium.' "(f) The fact that the cover and first page of the policy by purple stamped ink notation provides for `double indemnity' and such notation under the provisions of Section 13-717, R.C.M. 1947, controls over the purported limiting terminology appearing on page 8 (as the court has numbered it) of the policy, and the court believes the decisions in [New York Life Ins. Co.] v. Hiatt, [9 Cir.] 140 F.2d 752, 168 A.L.R. 551, and Montana's Holmstrom cases, Holmstrom v. Mutual Benefit Health &amp; Accident Ass'n, 139 Mont. 426, 364 P.2d 1065, make the ruling herein foregone." Defendant's motion for amended and additional findings, or for a new trial, was denied and defendant appealed from the judgment. Section 13-717, R.C.M. 1947, relied upon by the court and referred to in its conclusions of law reads: "Contract partly written and partly printed written parts control. Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded." For the judgment to stand, this court must find that the contract was ambiguous. This court has many times stated that in case of uncertainty, every doubt should be resolved in favor of the insured and the policy should be construed strictly against the insurer. On the other hand, if the intention of the parties is clear, the courts have no authority to change the contract in any particular, or to disregard the express language used. In James v. Prudential Ins. Co. (1957), 131 Mont. 473, 312 P.2d 125, 127, the court said: "But even though it is a cardinal principle of insurance law that a contract of insurance is to be construed liberally in favor of the insured and strictly against the insurer, contracts of insurance should be given a fair and reasonable construction. Park Saddle Horse Co. v. Royal Indemnity Co., 81 Mont. 99, 111, 261 P. 880. In arriving at such construction, no matter how strictly construed against the insurer the intention of both insurer and insured is to be ascertained from the language of the policy. R.C.M. 1947, section 13-704. Effect must be given to every part of the policy contract. R.C.M. 1947, 13-707. The words of the contract are to be understood in their usual meaning. R.C.M. 1947, § 13-710. Common sense controls." In Holmstrom v. Mutual Benefit Health and Accident Association, (1961), 139 Mont. 426, 428, 364 P.2d 1065, 1066, which was cited with approval in Kansas City Fire &amp; Marine Insurance Co. v. Clark, 217 F. Supp. 231, (D.C.Mont. 1963), affirmed in 329 F.2d 647, this court said: "The full policy must be read to see whether or not any ambiguity exists, and whether if such ambiguity does exist if it is confusing and uncertain in its terms. Ambiguity does not exist just because a claimant says so. It can only exist where the wording or phraseology of a contract is reasonably subject to two different interpretations. See Osterholm v. Boston &amp; Montana Mining Co., 40 Mont. 508, 107 P. *649 499; Johnson v. Metropolitan Life Ins. Co., 107 Mont. 133, 83 P.2d 922; Scinski v. Great Northern Life Ins. Co., 110 Mont. 106, 99 P.2d 218." Here the policy clearly provides that premiums are payable for 20 years. The policy was issued in 1939. Premiums were all paid and a paid-up policy certificate was issued in 1959, at the end of the premium paying period. The Accidental Death Benefit rider clearly provides that the benefit is payable only if insured dies accidentally during the premium paying period of the policy, and that the benefit is automatically cancelled if the policy becomes paid up. The premium paying period ended in 1959 and the policy became a paid-up policy in 1959, some four years prior to insured's accidental death in 1963. The rubber stamped, red-inked phrase "Double Indemnity" that appears on the cover and first page of the policy is not determinative of all issues. Section 13-717, R.C.M. 1947, sets forth the rule that written parts control the printed parts, and if the two are absolutely repugnant, the latter must be so far disregarded. This statute, however, does not restrict the right of the parties to explain the coverage, or limit it, in the body of the policy. Clearly the insured could take the basic insurance at lower premium cost without the Accidental Death Benefit rider or the Permanent Total Disability rider. Here the insured applied and paid for both, and the riders were inserted in the policy and the policy was stamped with the two phrases "DOUBLE INDEMNITY" and "WAIVER OF PREMIUM." The two stamped phrases do not create ambiguity. They do denote that the policy incorporates double indemnity provisions and waiver of premium provisions. To determine the scope of each, the riders themselves must be read and given a fair interpretation. Either, or both, of the coverages could have been dropped by the insured on any anniversary date of the policy and the annual premium would have been reduced $11.00 for the double indemnity provision and $4.18 for the waiver of premium provision. Clearly, the provision of each coverage must, of necessity, be examined to determine the rights of both parties. For interpretation of very similar policy provisions, see Hubach v. Mid-Continent Life Ins. Co., (1958), 228 Ark 926, 311 S.W.2d 307. The mere fact that the cover of the policy sets forth the annual, semi-annual and quarter annual premiums, and that page one of the contract sets out the monthly premium, does not make this a "single premium" policy with unseverable double indemnity provisions. Both benefit riders clearly provided that the premium would be reduced by a fixed amount if the coverage was dropped by the insured. Also, the fact that an employee of the defendant issued a temporary receipt to the insured for interest paid on the loan made after the policy became "paid-up" does not constitute an admission against interest on the part of the defendant. Exhibit No. 3 clearly indicated it was not a premium receipt and exhibit No. 2 clearly indicated that the payment was for interest. At the time of this payment the paid-up certificate had been issued, no other premiums had been paid, and the insured, a practicing lawyer, could not have been misled into believing that he was embarking on another premium paying period. We further find that the conduct of the defendant, evidenced by exhibit No. 4, in issuing a different Accidental Death Benefit coverage some 24 years after the policy here was issued, is not material or relevant. We find that the death of the insured did not occur during the premium paying period and further that the policy was a paid-up policy, and that therefore, the Accidental Death Benefit provision was *650 not in force on the date of death of the insured. The judgment is reversed with directions to enter judgment for the defendant. JAMES T. HARRISON C.J. and ADAIR, CASTLES and JOHN C. HARRISON, JJ., concur.

January 20, 1967

56049bd0-641b-4782-81e8-7a47cce2fefc

MATTER OF W C

N/A

83-060

Montana

Montana Supreme Court

NO. 33-60 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 LN THE MATTER OF W.C., Petitioner and Appellant, and E.L.S.B.C., Natural Mother ot T.M.B., Putative Minor, and R. J.B., Respondent. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding. COUNSEL OF RECORD: For Appellant: Oleson Law Firm; James Oleson argued, Kalispell, Montana Baldassin, Connell & Beers, Missoula, Montana For Respondent: Jonkel & Kemmis; Daniel Kernmis argued, Missoula, Montana Thomas Poullot, Dept. of Revenue, Helena, Montana Constitutionality-Hon. Mike Greely, Attorney General, - - Helena, Montana - Submitted: September 16, 1983 ~ecided : November 2, 1983 Filed: NOV 2 - 1983 -- Clerk Mr. Justice L.C. Gulbrandson delivered the Opinion of the Court. Petitioner appeals from a dismissal of his action by the District Court of the Fourth Judicial District, Missoula County. Erna (E.L.S.B.C.), natural mother of Tara (T.M.B), and Rodger (R.J.B), the respondent, were married on January 23, 1976. Tara was born on June 22, 1976, five months following the marriage of respondent and Erna. Respondent was identified as Tara's father on her birth certificate. On May 24, 1979, a divorce decree was entered dissolving the marriage of Erna and the respondent. The final decree stated that Tara was a child born of the parties' marriage. The decree ordered respondent to provide child support and allowed him visitation rights. In June, 1982, the petitioner-appellant, Wallace (W-c. ) I married Erna. On July 21, 1982, petitioner-appellant filed an action in Lake County to determine the parentage of Tara. The petition contained the results of an HLA blood test stating that the probability of parentage of appellant to Tara was 99.77 percent. On September 15, 1982, the case was transferred to Missoula County. The District Court dismissed the petition on December 1 5 I 1982, on the basis that the petitioner-appellant was barred by the five-year statute of limitations, Section 40-6-108(1)(b), MCA, from challenging the presumed father and child relationship between respondent and Tara. Appellant now argues that the District Court erred in dismissing his petition. ~nitially, appellant asserts that the five-year statute of limitations contained in Section 40-6-108(1)(b), MCA, has been rendered unconstitutional by the United States Supreme Court's decisions in Mills v. Habluetzel (1982), 456 U.S. 91, 71 L.Ed.2d 770, and Pickett v. Brown (1983), U.S. , 76 L.Ed.2d 372. In Mills, the Court struck down Texas' one-year statute of limitations in an action for child support on behalf of an illegitimate child. The decision was based upon equal protection considerations. The Court held that the one-year statute of limitations was unconstitutional because it made it more difficult for illegitimates to obtain child support than for legitimates to obtain support. In Pickett, the Court struck down a Tennessee statute that required paternity and support actions to be filed within two years unless the child was a public charge. The deprivation of equality by governmental classification that was present in Mills and Pickett is absent in the case at bar. In Mills, the Court held that illegitimate children were denied equality because their right to bring an action for support was more restricted than for legitimate children. Thus, the Court determined the extent to which the right of illegitimate children to support recognized in Gomez v . Perez (1973), 409 U.S. 535, 35 L.Ed.2d 56, may be circumscribed by a state's interest in avoiding prosecution of stale or fraudulent claims. Similarily, in Pickett, the Court relied heavily on its decision in Mills. The Pickett Court stated: "Much of what was said in the opinion in Mills is relevant here, and the principles discussed in Mills require us to invalidate this limitations period on equal protection grounds. "Although Tennessee grants illegitimate children a right to paternal support . . . and provides a mechanism for enforcing that right . . . the imposition of a two-year period within which a paternity suit must be brought . . . restricts the right of certain illegitimate children to paternal support in a way that the identical right of legitimate children is not restricted. In this respect, some illegitimate children in Tennessee are treated differently from, and less favorably than, legitimate children." In the present case we are not considering the constitutionality of a statute of limitations that would bar an illegitimate child's right to support. The child herein involved is not illegitimate because respondent has been presumed to be the father in accordance with Section 40-6-105(1)(a), MCA. In addition, the action is not being brought on behalf of the minor child and there is no allegation the child is being denied support. The Montana statutes at issue in this case are not unconstitutional under Mills or Pickett because they do not differentiate between legitimate and illegitimate children. Section 40-6-107(1), MCA. The invidious discrimination discussed in Mills and Pickett is not present here. Indeed, the Montana statute does not discriminate in any way against the appellant. Section 40-6-108 states: "(1) An action may be commenced: . . . (b) for the purpose of declaring the nonexistence of the father and child relationship presumed under subsection (a), (b), or (c) of 40-6-105(1), only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but not later than 5 years after the child's birth." In short, Mills and Pickett are not controlling and do not render Section 40-6-108(1)(b), MCA, unconstitutional. Likewise, the District Court did not err in relying on our decision in Borchers v . McCarter (1979), 181 Mont. 169, I 592 P.2d 941, when it dismissed the appellant's petition. The appellant argues that Mills and Pickett, along with our decision in State Dept. of Revenue v. Wilson (Mont. 1981), 634 P.2d 172, 38 St.Rep. 1299, overruled our decision in Borchers. In Borchers, a petition was filed more than five years after a child's birth to have someone other than the presumed father declared the father. The District Court granted the petition and we reversed on appeal holding that a person wishing to establish a parent-child relationship between a child and a nonpresumed person must first rebutt the presumption of another's paternity and Section 40-6-108(1)(b), MCA, was a bar to an action to rebutt the presumption. Similarily, in the present case, the District Court held that Section 40-6-108(1)(b), MCA, barred appellant's petition challenging the presumed father-child relationship. In Wilson, the issue before us was whether the three-year statute of limitations on the determination of paternity in Section 40-6-108(3), MCA, violated the equal protection clause of the Fourteenth Amendment of the United States Constitution and Article 11, Section 4, of the Montana Constitution. Section 40-6-108(3), MCA, provides, "An action to determine the existence or nonexistence of the father and child relationship as to a child who has no presumed father under 40-6-105 may not be brought later than three years after the birth of the child." In affirming the District Court's decision, we held that the statute was valid as against the state but unconstitutional as to an action brought for support on behalf of an illegitimate child. Specifically, the statute was held unconstitutional because illegitimate children would be discriminated against in the bringing of actions for support. Since Borchers did not concern an action brought by an illegitimate child for support or the statute of limitations provided in Section 40-6-108(3), MCA, Wilson does not overrule Borchers. Thus, the District Court properly relied upon our decision in Borchers to dismiss appellant's action. The appellant also argues that his cause of action is actually subject to a nineteen-year statute of limitations pursuant to our decision in Sutherland v. Hurin (Mont. 1980), 605 P.2d 1133, 37 St.Rep. 183. However, the Sutherland decision is inapplicable to this case. In Sutherland we held that children born before the July 1, 1975 effective date of the Montana Uniform Parentage Act have a nineteen-year statute of limitations for paternity actions. The child involved in this action is presumed legitimate so the case does not apply. Appellant further contends that the five-year statute of limitations provided in Section 40-6-108(1)(b), MCA, is inapplicable to appellant because he is actually subject to the provisions of Section 40-6-105(1)(e), MCA. Appellant asserts that Section 40-6-105(1)(e), MCA, is not controlled by a statute of limitations and he is subject to the provisions of that section because he acknowledged his alleged paternity of Tara to the District Court. Section 40-6-105 provides: "(1) A man is presumed to be the natural father of a child if: "(a) he and the child's natural mother are or have been married to each other and the child is born during the marriage. . . "(e) he acknowledges his paternity of the child in a writing filed . . . with the district court of the county where he resides, which court or department shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed . . . with the district court of the county were the acknowledgment was filed. If another man is presumed under this section to be the child's father, acknowledgment may be ----------- effected only with the written consent of the presumed f a t h e r o r a f t e r t h e ................................ presumption has been rebutted. (emphasis added ) A careful reading of this section indicates that appellant's assertion is incorrect. Since respondent is the presumed father and has not given his written consent to appellant's assertions, appellant must first rebutt the presumption that respondent is the presumed father before any written acknowledgment of paternity would be effective. Thus, appellant is again barred by the five-year statute of limitation on actions challenging the presumption of paternity. Section 40-6-108(1)(b), MCA. Finally, appellant asserts that the State of Montana has "confessed error" in the ruling of the District Court that Section 40-6-108(1)(b), MCA, is constitutional. Specifically, appellant argues that because the Attorney General of Montana failed to appear and argue against appellant's constitutional challenge, the State of Montana has admitted the District Court erred in relying upon the statute. In all the cases appellant cites as authority for this argument the confession of error rule was applied to an opposing party who did not respond to a particular issue on appeal. Respondent's brief in the present action has clearly addressed the consitutional challenge to Section 40-6-108(1)(b), MCA. The Attorney General does not have a duty to appear in every action concerning the constitutionality of a statute. Rule 38, f4.R.App.Civ.P. requires a party challenging the constitutionality of a statute to give the Attorney General notice of the challenge but Rule 38 has never been interpreted as meaning the State of Montana has an absolute duty to appear whenever a challenge arises. Rather, the purpose of Rule 38 is to give the Attorney General the opportunity to defend the acts of the Nontana legislature. Gilbert v. Gilbert (1975), 166 Mont. 312, 533 P.2d 1079; Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; Grant v. Grant (1975), 166 Mont. 229, 531 P.2d 1007. We find no reversible error and, therefore, affirm the decision of the District Court. We concur: ~ a ~ ~ , $ l g ! ~ ~ ~ ~ Chief Justice i 1 , / GL .~*4. , ~ d n . 'Diane G. Barz, ~ i s t f i c t Xudae. s i t t i n g i n p l a c e of Mr. $ ~ s t i c & ~ ' Frank B. Morrison J r . \ \ . - + )

November 1, 1983

40d2866b-f127-4f24-9b43-c30c7fe2d94f

ROGERS V SWINGLEY

N/A

83-302

Montana

Montana Supreme Court

NO. 83-302 I N THE SUPREME COURT OF THE STATE O F P I O N T A I i l A 1983 G L E N N E. ROGERS, P l a i n t i f f , Counterclaim Defendant and Respondent, D O U G L A S J. SWINGLEY and N E L D A J. SWINGLEY, husband and wife, Defendants, Counterclaim P l a i n t i f f s and Appellants. APPEAL F R O M : The D i s t r i c t Court of t h e Eighth J u d i c i a l District, I n and f o r t h e County of Cascade, The Honorable J o e l G. Roth, Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellants: H a r t e l i u s and Ferguson, Great F a l l s , Montana For Respondent: M. Richard Gebhardt , Ronan, Montana Robert Emmons, Great F a l l s , Kontana - Submitted on B r i e f s : August 18, 1983 Decided: October 20, 1983 DOT 3 ; , F i l e d : . J (J -- Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Douglas L. Swingley and Nelda J. Swingley, defendants, appeal from the summary judgment of the District Court, Eighth Judicial District, Cascade County, granted in favor of Glenn E. Rogers, plaintiff. We find the District Court erroneously granted summary judgment. The judgment is hereby reversed and the case remanded to the District Court. Douglas L. Swingley and. Nelda J. Swingley first met Glenn E. Rogers and his wife at the International Mink Show held in Madison, Wisconsin, during January 1978. Both the Swingleys and the Rogers were then in the business of raising mink. The Rogers were operating a mink ranch in Ronan, Montana, and the Swingleys had begun operation of a mink ranch west of Great Falls, Montana. Glenn E. Rogers had begun his mink ranching operation through a mink leasing arrangement and he suggested that the Swingleys might also be able to benefit from an arrangement of this kind. The Swingleys agreed and in early December 1978 the parties entered into a written lease agreement whereby Rogers agreed to lease 600 pastel female mink and 120 male mink to the Swingleys. In return, the Swingleys agreed to pay Rogers one kit per female mink annually, or one-fourth of the annual kit crop, if the total female mink leased produced an average of four kits. The term of the lease was from November 15, 1978 to November 15, 1980. At or about the time the parties entered into the lease agreement, Rogers strongly suspected that at least a small percentage of those mink leased to the Swingleys were infected with Aleutian Disease (AD). This disease affects the productivity of the mink and impairs their resistance to other diseases. Douglas L. Swingley eventually became aware of greater than normal losses among the leased mink and their kits and a lower than normal productivity rate among the female mink. Because of these problems, the parties agreed to a payment of $5,000 on the lease for the first year rather than a payment of mink. The problems continued into the second year and Swingley did not make the final payment under the lease. To ensure payment, Rogers then sought a temporary restraining order preventing the Swingleys from selling any of the mink or mink pelts. The parties then attempted to reconcile their differences by replacing the lease with a promissory note for $49,750 and a mortgage as security for the promissory note. The promissory note contained five paragraphs: the first four paragraphs set forth the terms for payment of the obligation and the last paragraph contained a release whereby "the makers of this note hereby covenant and agree to release GLENN E. ROGERS and TREASURE STATE MINK RANCH from any and all future liability which may arise out of the said mink lease." The Swingleys failed to make the first payment on the promissory note and on June 3, 1981, Rogers filed a complaint asking for judgment against the Swingleys for the full amount of the promissory note and for foreclosure of the mortgage securing the promissory note. The Swingleys filed an answer and a counterclaim in which they alleged that the promissory note and mortgage were procured through fraud and that Rogers was liable to them for various damages. Although Rogers has alleged that he informed the Swingleys of the presence of AD in the leased mink soon after the lease was signed, the Swingleys claim that they never knew that the leased mink were infected with AD and that they would not have signed the promissory note containing the release if they had known that the mink were infected. Rogers moved for summary judgment following discovery. The District Court granted summary judgment for Rogers, awarded him the full amount of the promissory note, and ordered the mortgage foreclosed. The sole issue on appeal is whether summary judgment was properly awarded to Rogers. More specifically, viewing the record in the light most favorable to the Swingleys, is there a genuine issue of material fact? Summary judgment under Rule 56(c), M.R.Civ.P., is proper only if the record discloses no genuine issue of material fact as a matter of law. Abell v. Traveler's Insurance Co. (Mont. 1983), 663 P.2d 335, 40 St.Rep. 738; Downs v. Smyk (Mont. 1982), 651 P.2d 1238, 39 St.Rep. 1786. This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all the facts which are deemed material in light of those substantive principles which entitle him to a judgment as a matter of law. Krone v. McCann (Mont. 1982), 638 P.2d 397, 39 St.Rep. 10; Big Man v. State (Mont. 1981), 626 P.2d 235, 38 St.Rep. 362. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kober & Kryss v. Stewart & Billings Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476; 6 Moore's Federal Practice ¶ 56.15 [31. In addition, a11 reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party who opposes summary judgment. Abell v. Travelers Insurance Co. (Mont. 1983), 663 P.2d 335, 40 St.Rep. 335; Downs v. Smyk (Mont. 1982), 652 P.2d 1238, 39 St.Rep. 1786; Brown v. Merrill Lynch Pierce Fenner's Smith, Inc. (Mont. 1982), 640 Here, the District Court failed these principles. In its finding of fact no. 4, the District Court stated: "4. The affidavit of defendant Douglas L. Swingley stated that he was unaware, at the time the note was executed, that his mink were infected with Aleutian Disease and, therefore, the note was secured by fraud by plaintiff. This assertion is not supported by evidence." In support of this conclusion, the court cited the following: "5. In sworn testimony of Defendant Douqlas L. Swingley in Swingley v. kernaghanl s services, Inc. , et al, Eighth District, Cascade County, CDV-80-416, -- Defendant Swingley, in answer to cross-examination by Robert J. Emmons, Attorney-at-law, stated: "'Q. At one time you indicated that you had 70% of your herd were infected with this particular disease. Is that correct? A. Yes.' "Q. What year was that? A. That was November of 1980. " From this the Court found: "6 . By Defendant Douglas Swingley's sworn admission, he stated that he was aware of the Aleutian Oisease infection prior to execution of the promissory note." This appears to be the decisive piece of evidence which ultimately led the District Court to grant summary judgment. If Douglas Swingley knew that his mink were infected with Aleutian Disease prior to the execution of the promissory note, there would be no genuine issue of material fact and summary judgment would be proper. However, t h e statement made by Douglas L. Swingley can be read two ways: 1) That, Douglas L. Swingley knew, i n November 1980, t h a t h i s mink were i n f e c t e d with AD; o r 2 ) That, a t t h e time of h i s deposition i n 1981, Douglas L. Swingley knew t h a t h i s mink had been i n f e c t e d i n November 1980. I f Douglas L. Swingley i s t o be afforded t h e b e n e f i t of a l l reasonable inferences t h a t may be drawn from t h e evidence, then t h e p o s s i b i l i t y of hindsight must be examined. I n h i s deposition, Douglas Swingley s t a t e d t h a t he c a l l e d Rogers on t h e telephone some t i m e i n e a r l y December 1980 a f t e r t h e promissory note was signed. A t t h a t time, Rogers t o l d Swingley t h a t Rogers had t e s t e d h i s mink herd f o r AD during November 1980, and t h e t e s t r e s u l t s revealed t h a t about 30 percent of h i s mink were i n f e c t e d with AD. Swingley then t e s t e d h i s mink and t h e r e s u l t s revealed t h a t around 70 percent of h i s mink were i n f e c t e d with AD. When Swingley responded i n t h e deposition c i t e d by t h e D i s t r i c t Court t h a t 70 percent of h i s mink were i n f e c t e d with AD i n November 1980, i n s t e a d of December 1980, when he t e s t e d h i s mink, he could merely ha.ve been looking back t o t h e e a r l i e s t time when he could be s u r e t h a t h i s mink were i n f e c t e d with AD. Rogers t e s t e d h i s mink i n November 1980. Swingley leased t h e mink from Rogers. Therefore, Swingley could reasonably assume t h a t t h e leased mink i n h i s possession were a l s o i n f e c t e d with AD a s e a r l y a s November 1980. This Court has c o n s i s t e n t l y held t h a t t h e D i s t r i c t Court's function i s not t o adjudicate genuine i s s u e s of f a c t on a motion f o r summary judgment; i t s function i s merely t o determine whether such issues exist. Abell v. Travelers Insurance Co. (Mont. 1983), 663 P.2d 335, 40 ~t.Rep. 738; Small v. McRae (Mont. 1982), 651 P.2d 982, 39 St.Rep. 1896. If there is any doubt as to the propriety of a motion for summary judgment, it should be denied. Cheyenne Western Bank v. Young (l978), 179 Mont. 492, 587 P.2d 401; Engebretson v. Putnam (1977), 174 Mont. 409, 571 P.2d 368; Fulton v. Clark (1975), 1.67 Mont. 399, 538 P.2d 1371. It is not clear, so as to exclude all real doubt, that the burden of establishing no genuine issue of material fact was met. The summary judgment is reversed and the case remanded to the District Court for further proceedings. L... /I. d - - L- 9 Justice We Concur: J q4-4 d .Q/M u L P ! Chief Jus'tlce

October 20, 1983