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MR. JUSTICE STARK
delivered the opinion of the court.
This cause involves the title and right to the possession of a strip of land 277.8 feet wide and one-half mile in length, containing 15.56 acres located in section 34, township 4 north, range 7 west, in Jefferson county.
The complaint alleges the corporate existence of the plaintiff and that it is, and at all times therein mentioned was, the owner and entitled to the possession of the southeast quarter of section 34, township 4 north, range 7 west, known locally as the Peter Hansen ranch; that on or about the fifth day of August, 1920, the defendant wrongfully entered upon said premises and began digging fence post boles thereon parallel with the west side line thereof, and threatened to build a fence upon a portion of the same and thereby interfere with plaintiffs’ peaceful enjoyment;
The defendant’s answer admitted that plaintiff was a corporation, but denied generally all the other allegations of the complaint and set up title in himself under a government patent. The case was tried before the court without a jury on June 22, 1922.
To sustain the allegations of its complaint the plaintiff first offered in evidence a patent from the United States of America to Peter Hansen conveying to him the southeast quarter of the southeast quarter and the west half of the southeast quarter of section 34, township 4 north, range 7 west, “containing 120 acres *nore or less according to the official plat of the survey of said lands returned to the general land office by the surveyor-general,” which patent was dated June 20, 1883, and also a homestead patent for the northeast quarter of the southeast quarter of said section 34, “containing forty acres according to the official plat of the survey of said land returned to the general land office by the surveyor-general,” issued to Jeremiah Collins and dated December 8-, 1905.
By the evidence and stipulations of counsel it was shown that by mesne conveyances all the right, title and interest of Peter Hansen and Jeremiah Collins in and to the lands mentioned in these patents had passed to the plaintiff long prior to the commencement of this suit and that the plaintiff was the owner and in actual possession of the same. It was also stipulated that the defendant entered into and within the exterior boundary lines of the land claimed by the plaintiff at a point approximately 280 feet east of a fence that inclosed the so-called Peter Hansen premises on the west side and dug a series of post-holes from the south boundary fence north and parallel with the said west fence line and that said west fence line runs north from a certain monument or stone set in the ground by W. "W. De Lacy, a government surveyor on May 9, 1877, and which, said stone is the southwest comer of the premises described in the plaintiff’s complaint.
The only matter developed at the trial upon which there was a serious dispute was whether this stone marked the location of the southwest comer of plaintiff’s land, or whether such corner was located at a point approximately 280 feet to the east of it. For brevity the point indicated by this stone will be referred to as “Cor. A.”
It was not disputed but that this stone was placed at this point by De Lacy on May 9, 1877, and had never been moved. It was also shown without dispute that Peter Hansen, for the purpose of inclosing the land embraced in his patent, as early as 1882 built a fence east from this stone a distance of one-half mile along the south boundary of section 34 to the southeast corner of this section being the common section corner of sections 3'4 and 35, township 4 north, range 7 west, and sections 2 and 3 of township 3 north, range 7 west, which was established by De Lacy, as hereinafter shown, on May 16, 1877, and which will be referred to as “Cor. B.”
There were also introduced in evidence the field-notes and plat of the survey of the subdivisional lines of township 4 north, range 7 west, made by De Lacy in 1877. In mailing this survey De Lacy started at the point designated as “Cor. B” and ran north forty chains to the quarter section comer between sections 34 and 35, which will be designated as “Cor. C.” On this plat the distance between “Cor. A” and “Cor. B” is shown as forty chains.
It was also shown that Hansen for the purpose of inclosing his land built a fence north from “Cor. A” to the point of intersection of a line projected due north from that corner with a line projected due west from “Cor. C,” and also built a fence from the last-mentioned point east to “Cor. C,” and likewise built a fence on his eastern boundary line. The fences so built were continuously maintained by Hansen from 1882 down to the time of his death in 1906, and subsequently by plaintiff and its predecessors in interest down to the time of the trial. It is thus seen that if the corners A, B and C are accepted, the northeast, southeast and southwest corners of the southeast quarter of section 34 were definitely established by the official government surveys.
The original field-notes and plat show that “Cor. A” was established by De Lacy by running a line from a designated point on the south boundary line of township 3 north, range 7 west, to the north boundary thereof “at the quarter-section comer 'between sections 3 and 34” where he set the stone which we have designated “Cor. A.” The field-notes and plat also show that in this survey De Lacy ran a lin% from “Cor. A” a distance of forty chains and there “set a stone marked with an ‘X’ 12 inches in the ground for corner to sections 2, 3, 34 and 35,” which is the point above designated as “Cor. B” and is the point above referred to as the eastern terminus of the fence which Hansen built along his south line from “Cor. A.”
The testimony disclosed that upon this plat as originally prepared lines were drawn showing the west and north boundaries of the southeast quarter of section 34 which had been located by projecting a line due north from “Cor. A” and due west from “Cor. C” until they intersected, and that the area thus included had been marked “160 acres,” but that at some subsequent time these north and west lines and also the figures “160” had been erased and in place thereof lines had been drawn showing that only the southeast quarter of the southeast quarter of section 34 had been platted and the figures “40” had been inserted in lieu of “160.” When, by whom, or under what circumstances these erasures and changes were made was not definitely disclosed. It was shown, however, that the plats of surveys are prepared in the office of the surveyor-general from the field-notes of the surveyor making the survey, and that at the time the plat in question was originally prepared it was the custom to make a copy of the original plat to be forwarded to the commissioner of the general land office. The surveyor-general, testifying as a witness, said: “It might happen that the copy of the commissioner’s plat sent to him still shows that indicated as 160 acres survey of the southeast quarter of section 34.”
Following this testimony the plaintiff introduced in evidence Exhibit 30, being the certified copy of a letter from the acting commissioner of the general land office, addressed to the surveyor-general of Montana, dated November 4, 1905, concerning instructions to 'be given to one Frank M. Elmer in connection with further surveys to be made in township 4 north, range 7 west, adjacent to the surveys made by De Lacy in 1877, in which letter the writer said: “A diagram of T. 4 N., R. 7 W. is attached herewith showing the old surveys platted according to their true length and bearing.”
The diagram attached to the letter and referred to therein shows the entire southeast quarter of section 34 as having been surveyed and platted, and also that the south line thereof was forty chains in length.
There were also introduced in evidence plats and field-notes of the surveys of eight quartz lode mining claims upon which patents had been issued by the United States government, which surveys had been made at different times from 1893 to 1914 by United States mineral surveyors and approved by the surveyor-general, each of which surveys is tied to Comer A, the reference thereto being: ‘‘The quarter-section comer on the south boundary line of section 34, township 4 north, range 7 west.”
Considerable other testimony was introduced' tending to show that ‘‘Cor. A” had at all times been generally recognized as the southwest corner of the southeast quarter of section 34.
On behalf of the defendant there was introduced a patent from the United States conveying to him, amongst other lands, lots 10 and 11, section 34, township 4 north, range 7 west, bearing date the twenty-ninth day of January, 1918. In connection therewith the plat of a survey of portions of this township made by Frank M. Elmer in 1907 and which is the survey referred to in Exhibit 30 above mentioned, and also an amended plat of a part of this same survey, were introduced, from which it is made to appear that the area embraced in what would other wise be the west half of the southeast quarter of section 34 is designated as lots 3 and 4, lot 4 being the southerly one, and that the distance from ‘ ‘ Cor. B ” to the southwest corner of lot 4 is 36.23 chains; that the lands lying immediately west of lots 3 and 4 are designated as lots 10 and 11, and that the comer heretofore designated as “Cor. A” is about 280 feet west of the southwest comer of lot 4.
The area embraced in a parallelogram formed by projecting lines north from “Cor. A” as located in the 1877 survey, and the southwest corner of lot 4 as shown in the 1907 survey, is the land involved in this suit.
After the introduction of all the testimony the trial court made findings of fact to the effect that all of this disputed area lies west of the east boundary line of lots 10 and 11 as established by the 1907 survey; that the plaintiff had no interest in any portion thereof, and as a conclusion of law found that the defendant was entitled to judgment against the plaintiff.
Subsequent to the decision of the court the plaintiff made a motion to remedy certain defects, omissions and deficiencies therein and that the court make and enter findings of fact and conclusions, of law in its favor. This motion was denied and thereupon judgment was duly rendered in favor of the defendant, from which the plaintiff has appealed. Counsel for plaintiff have assigned seventy-five specifications of error, but it will not be necessary to consider any of them separately, since, in effect, they all aim at the same point.
From the foregoing statement it is apparent that the decisive question in the case is whether the point designated as “Cor. A, ” as established by the De Lacy survey of 1877, is the southwest corner of the southeast quarter of section 34, or whether the place designated in the 1907 survey as the southwest corner of lot 4 is the point of division on the south line of the premises claimed by the plaintiff and defendant.
The first position assumed by counsel for defendant in the conduct of the trial of the cause in the lower court, as well as in his brief filed in this court, is that the southeast quarter of section 34 had not been surveyed at the time the Hansen patent was issued and therefore there was nothing to which the description contained therein could attach, and that until the Elmer survey of 1907 it was a mere “floating description.” This position, of course, cannot be sustained. The patent issued to Hansen is regular on its face. It is duly signed, countersigned and sealed. It is the highest possible evidence of title. When a patent for public land is issued by proper authority, it is presumed that all precedent conditions have been complied with (and one of these conditions is that the land has been surveyed), and such patent is not open to collateral attack. The decisions of the courts so holding are uniform. (St. Louis S. & R. Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; American Assn., Ltd., v. Innis, 109 Ky. 595, 60 S. W. 388; United States v. Maxwell Land Grant Co., 121 U. S. 325, 30 L. Ed. 949, 7 Sup. Ct. Rep. 1015; United States v. Reading, 18 How. 1, 15 L. Ed. 291; Simmons v. Wagoner, 101 U. S. 260, 25 L. Ed. 910; Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; De Guyer v. Banning, 167 U. S. 723, 42 L. Ed. 340, 17 Sup. Ct. Rep. 937; Le Marchel v. Teegarden (C. C.), 133 Fed. 826; Steele v. St. Louis Smelting etc. Co., 106 U. S. 447, 27 L. Ed. 226, 1 Sup. Ct. Eep. 389; Turner v. Donnelly, 70 Cal. 597, 12 Pac. 469; Hoofnagle v. Anderson, 7 Wheat. (U. S.) 212, 5 L. Ed. 437 [see, also, Rose’s U. S. Notes]. And such has been the holding of this court in the cases of Ming v. Foote, 9 Mont. 201, 23 Pac. 515; Colburn v. Northern Pac. Ry. Co., 13 Mont. 476, 34 Pac. 1017; Gebo v. Clarke Fork Coal Co., 30 Mont. 87, 75 Pac. 859; Traphagen v. Kirk, 30 Mont. 562, 77 Pac. 58; Thomas v. Horst, 54 Mont. 260, 169 Pac. 731.)
It is further contended by the defendant that since the point designated as “Cor. A” — that is, the quarter-section comer between sections 3 and 34 — was established in running the north boundary line of township 3 and not in running the south boundary line of township 4, it was a legal establishment only of the north quarter-section corner of section 3 and did not establish the south quarter-section comer of section 34, and also that, since the field-notes and plat of the 1877 survey of ■township 4 north do not show that the quarter-corners were established on the north and west boundaries of section 34, that survey did not bring the situation within the rule of the general land office that when three surveyed corners of a quarter-section are established it constitutes a survey thereof, even though it be conceded that “Cor. A” did establish the south quarter comer of section 34. We do not think these contentions can be sustained. The Hansen patent conveyed the land “according to the official plat of the survey of said lands returned to the general land office by the surveyor-general.” Where lands are so granted, the plat itself with all of its notes, lines, descriptions and landmarks becomes a part of it. (Barringer v. Davis, 141 Iowa, 419, 120 N. W. 65; United States v. Montana Lumber Co., 196 U. S. 573, 49 L. Ed. 604, 25 Sup. Ct. Rep. 367; Little v. Williams, 231 U. S. 335, 58 L. Ed. 256, 34 Sup. Ct. Rep. 68 [see, also, Rose’s U. S. Notes]; Weaver v. Howatt, 161 Cal. 77, 118 Pac. 519.)
If we should concede that the plat on file with the commissioner of the general land office at the time of the issuance of the Hansen patent mistakenly shows that the entire southeast quarter of section 34 had been surveyed by reason of the fact that the draftsman in the surveyor-general’s office in Montana had failed to. follow the rules with reference to the preparation of such plat, that would not help defendant’s position. He could not under his answer properly have been allowed to so show such mistake for the reasons pointed out above; but even if he had properly pleaded and proven such a mistake it would not have availed him, for, as was said by the supreme court of Iowa in Hedrick v. Eno, 42 Iowa, 411: “But in case the instructions were not followed as to location of comers and the like, we hardly think it could be held that the survey should be set aside for that reason, after having been adopted by .the department, plats made therefrom which were recognized by the government as correct and true, and the lands sold in subdivisions as indicated thereby. ’ ’
Turning now to the record relating to the plaintiffs case, we ■find it is conceded that De Lacy established comers B and C (the southeast comer of section 34 and the quarter-section corner between sections 34 and 35) in May, 1877; also that he establishd “Cor. A” as the quarter-section corner between sections 3 and 34 in the same month.
Ye think it satisfactorily appears from these surveys that independent of any presumptions which arise from the issuance of the patent itself, a plat was in fact prepared which showed the southeast quarter of section 34 to have been surveyed with its southwest comer at the point designated “Cor. A”; that a copy of this plat was forwarded to the commissioner of the general land office by the surveyor-general of Montana and that such plat, showing the location of the southeast comer of section 34 to be at a point forty chains west of “ Cor. B,’’ was the .one referred to in the Hansen patent. To hold otherwise would render it necessary to wholly disregard the plat attached to exhibit 30 which shows that for at least a period of twenty-three years it had 'been regarded in the general land office that the southeast quarter of section 34 was surveyed by De Lacy in 1877 and that the south line thereof was forty chains in length.
The fact that a subsequent survey made a change in these lines and corners cannot affect the rights of the plaintiff which were acquired by its predecessors long before the later survey. Original surveys of public lands by the United States government, on the faith of which property rights have been acquired, control over surveys subsequently made by the government which affect such rights. (22 R. C. L. 282, sec. 42; Burt v. Busch, 82 Mich. 506, 46 N. W. 790; Barringer v. Davis, 141 Iowa, 419, 120 N. W. 65; Slack v. Orillion, 13 La. 56, 33 Am. Dec. 551; Washington Rock Co. v. Young, 29 Utah, 108, 110 Am. St. Rep. 666, 80 Pac. 382; MiUer v. White, 23 Fla. 301, 2 South. 614; 5 Cyc. 946.)
On this state of the record the trial court was in error in holding that the defendant owns and is entitled to the possession. of the strip of land in controversy, and erred in failing to sustain the plaintiff’s motion to correct the findings of fact and conclusions of law upon which the judgment in the action is based.
For these reasons the judgment appealed from is reversed and the cause remanded to the district court, with directions to modify the findings of fact and conclusions of law in accordance with the plaintiff’s motion, and to enter judgment thereon in favor of the plaintiff. ''
Reversed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Galen, concur.
Mr. Justice Cooper, being absent, did not hear the argument and takes no part in the foregoing decision.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the” court.
This action was instituted to recover taxes paid under protest. A general demurrer to the complaint was overruled, and •the defendant, declining to plead further, suffered judgment to be entered against him, and appealed therefrom.
In paragraphs 4, 5, 6 and 7 of the complaint it is alleged that the county assessor of Silver Bow county arbitrarily classified plaintiff’s property under class 7, giving it a taxable value of $90,020, whereas it should have been assigned to class 2, with a taxable value of $45,010; that plaintiff applied to the county board of equalization for a reclassification, which was denied; that an appeal was taken to the state board of equalization, but the state board refused plaintiff any relief. The allegations of these four paragraphs may be disregarded at once, since neither the assessor, the county board of equalization nor the state board of equalization has anything whatever to do with the classification of property for the purpose of taxation.
It is the duty of the assessor to make an assessment of all taxable property in his county not subject to assessment by the state board of equalization. (See. 2002, Rev. Codes.) An ■assessment means the process by which persons subject to taxation are listed, their property described and its full cash value ascertained and stated. (Hilger v. Moore, 56 Mont. 146, 182 Pae. 477.) The duty of the county board of equalization is to examine the assessment-book and equalize the assessment of property in the county. (Sec. 2113.) Aside from its administrative function and its duty to assess interoounties property the state board of equalization is charged with the duty to adjust and equalize the valuation of property subject to taxation, to change, increase or decrease valuations placed on property by the assessor or fixed by the county board of equalization, and to supervise the administration of the tax' laws, “to the end that all assessments of property be made relatively just and equal at true value in substantial compliance with law.” (Laws 1923, Chap. 3', sec. 8, subd. 6.)
The levy for state purposes is made by the legislative assembly (sec. 2147, Eev. Codes), and the rate is fixed by the state board of equalization (sec. 2149). The levy for county purposes is made and the rate fixed by the county board of equalization. (Bee. 2150.) As soon as the county clerk receives from the state board of equalization a statement showing the changes made by that board, he must make corresponding changes in the assessment-book. (Sec. 2159.) Section 2160 provides: “The county clerk must then compute, and enter in a separate money column in the assessment-book, the respective sums in dollars and cents, rejecting the fractions of a cent, to be paid as a tax on the property therein enumerated, and foot up the column showing the total amount of such taxes, and the columns of total value of property in the county, as corrected under the direction of the state board of equalization.”
On or before the first Monday of October the clerk must deliver to the county treasurer a duplicate of the corrected assessment-book with the taxes extended (see. 2161), and within ten days thereafter the treasurer must give the notice required by section 2169, which notice constitutes a demand upon the taxpayer to pay the amount indicated in the notice.
Thus the process is made reasonably clear: The assessor makes the assessment; the county board equalizes the assessment; and the state board reviews the action of the assessor and county board, making such changes in the assessment as will secure a relatively just and equal valuation upon all prop erty subject to taxation. When the process of equalization is completed and the changes made are spread upon the assessment-book, the classification statute first becomes operative. The county clerk must compute the amount of the tax upon the percentage of assessed value indicated by section 2000, and when this is done and the tax is extended, the assessment-book is turned over to the treasurer, whose duty it is to demand and collect the tax. It will thus be seen that the classification statute has nothing whatever to do with the assessment of property or the determination of assessed value. It deals only with the imposition of the tax by furnishing the legal basis for computation, and its provisions are directed to the clerk whose duty it is to make the computation. (State ex rel. Galles v. Board of County Commrs., 56 Mont. 387, 185 Pac. 456.)
Since neither the assessor, the county board nor the state board has anything to do with the classification of property for taxation, and a classification by any one or all of them is without legal effect, it becomes apparent at once that all of the allegations contained in paragraphs 4, 5, 6 and 7 of plaintiff’s complaint are wholly immaterial, and should be stricken or disregarded. Likewise eveiy allegation of paragraph 9, after the first clause, is but the statement of a bald legal conclusion; and the allegations of paragraph 10 are surplusage, and do not aid in the statement of a cause of action. (Belknap Realty Co. v. Simineo, 67 Mont. 359, 215 Pae. 659.) Eliminating these allegations, the question arises: Does the complaint state a cause of action? It sets forth that the defendant is the county treasurer of Silver Bow county; that plaintiff is a foreign corporation authorized to do and doing business in that county, with property therein subject to taxation on the first Monday in March, 1923; that plaintiff prepared and submitted to the assessor a statement of its property, giving the true value thereof — $225,050; that thereafter, about November 30', 1923, plaintiff paid to the treasurer $26,552.50, of which sum $2,182.99 was paid under protest.
A cause of action is the right which a party has to institute a judicial proceeding, and to state a cause of action the plaintiff must disclose its right and an infringement of that right by the defendant. (Johnson v. County of Lincoln, 50 Mont. 253, 146 Pac. 471.) It is not sufficient for it to say, “Some one invaded my right and did me an injury”; it must state the facts which disclose a cause of action in its favor and against the defendant. What wrong, then, was done the plaintiff, and by whom? It is not alleged that the county treasurer ever demanded that plaintiff pay $26,552.50 or any other sum, or that the county clerk computed plaintiff’s taxes upon an erroneous basis. In other words, there is not anything to disclose that the tax collected, or any part of it, was unlawful.
In their brief counsel for plaintiff say: “The county clerk should and did extend and foot the rolls and in this case the classification ultimately appearing was that made by the assessor in the first instance. * * # The clerk thereby adopted the classification of the assessor and made it his own. ’ ’ But there is not a suggestion in the complaint that the clerk did anything of the kind, or in fact did, anything at all. The complaint fails to state a cause of action, and the court erred in overruling the demurrer.
The judgment is reversed and the cause is remanded, with directions to sustain the demurrer.
Reversed.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was instituted to obtain the cancellation of record of an oil and gas lease and to recover the statutory penalty with costs and an attorney fee and actual damages alleged to have been suffered by the plaintiffs. (Daley v. Torrey, 69 Mont. 599, 223 Pac. 498.) After the decision upon the former appeal plaintiffs procured a writ of attachment to be issued and property belonging to the defendant Torrey to be seized. Thereafter Torrey transferred his interest in the attached property to the Montana National Bank of Havre, and the new owner appeared in the action and moved to discharge the attachment. The motion was granted and plaintiffs appealed from the rv’der. The only question presented for determination is whether an attachment may issue in an action of this character.
Under the general statute (secs. 9256, 9257, Rev. Codes) a writ of attachment may issue only in an action upon a contract, express or implied, for the direct payment of money where payment is not secured by a mortgage, lien or pledge, or, if originally secured, such security has become valueless without any act of the plaintiff or the person to whom the security was given.
The present action is not one upon a contract, express or implied, for the direct payment of money. It is a special statutory action, legal in character, in which the plaintiffs seek, among other things, the recovery of a penalty and damages arising from the commission of a tort. (Solberg v. Sunburst Oil & Gas Co., 70 Mont. 177, 225 Pac. 612.) But the fact that plaintiffs were not entitled to a writ of attachment under sections 9256 and 5257 above, is not conclusive. This action is prosecuted under sections 6902, 6903 and 6904, Revised Codes. The statute was first enacted in this state in 1917 (Chap. 22, Laws 1917), and the title of the Act fairly indicates the purpose of the legislation. The title is: “An Act in relation to the release of record of oil, gas, and other mineral leases; providing civil remedies in connection therewith. ’ ’
Section 6902 imposes upon the lessee the duty to release of record any oil, gas or other mineral lease within sixty days from the date such lease is forfeited. Section 6904 provides for a demand before suit is brought and for the use of secondary evidence to prove that the demand was made, and, having thus defined the duty of the lessee and prescribed the preliminary proceedings to be observed by the owner, the statute is devoted entirely to the civil remedies made available to the owner upon default by the lessee. Section 6903 declares that for failure of the lessee to perform the duty imposed by section 6902, the owner may maintain an action to obtain such release, and in that action he may also recover the statutory penalty of $100, his costs, together with a reasonable attorney fee and any additional damages he may be able to show that he has suffered. In other words, the owner is authorized to maintain an appropriate action and combine therein (a) a cause of action for the cancellation of the lease; (b) a cause of action for the recovery of the statutory penalty; and (c) a cause of action for damages, and, as an incident, he is author ized to recover Ms- costs and a reasonable attorney fee. If the statute stopped at this point, no one would insist that a writ of attachment could be procured in such an action; but section 6903 declares expressly that “in all such actions writs of attachment may issue as in other cases.”
Attachment is classified by our Codes as a provisional remedy. It is a summary proceeding ancillary to the action in which it is issued, and is purely of statutory origin. (Duluth Brewing & Malting Co. v. Allen, 51 Mont. 89, 149 Pac. 494.) The same law-maHng authority which was invoked in the enactment of the general attachment statute (secs. 9256, 9257) was equally available to enact a different statute dealing with a particular phase of the same subject. It is a general rule of statutory construction that where one Act deals with a subject generally, and another with a part of the same subject, the two are to be read together and harmonized, if possible, but to the extent of any necessary repugnancy between them, the special statute prevails over the general one. (Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454; Reagan v. Boyd, 59 Mont. 453, 197 Pac. 832; Walden v. Bitter Root Irr. Dist., 68 Mont. 281, 217 Pac. 646.) The two Acts in question may be reconciled without difficulty. The general statute declares that the writ of attachment will issue only in an action upon a contract, express or implied, for the direct payment of money where the payment is not secured, whereas, the special statute provides that the writ may issue also in the particular tort action for which provision is made in section 6903. And the right to a writ of attachment in an action arising out of tort is not peculiar to Montana. In 6 C. J. 80, the author says: “In a number of states the statutes now extend the remedy by attachment to claims arising ex delicto,” citing authorities from many jurisdictions. Indeed, the special Act now under review is not the only statute in this state which extends the right to a writ of attachment beyond the scope of sections 9256 and 9257. Section 12267 provides for a proceeding in the nature of a civil action in a bastardy case, and, notwithstanding the existence of a lien in favor of the plaintiff (sec. 12269), an attachment may be issued (see. 12270).
It is insisted by counsel for the bank, however, that the concluding phrase “as in other cases” limits the right to a writ of attachment to cases which fall within the purview of sections 9256 and 9257; in other words, to actions upon contracts, express or implied, for the direct payment of money. But such an interpretation of the language employed does violence to the most elementary rules of statutory construction. Every word of a statute must be made operative, if it is possible to do so (State ex rel. Anaconda C. M. Co.v. District Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103), and no word in a statute is to be deemed meaningless, if a construction can be adopted which will give it effect. (Mid-Northern Oil Co. v. Walker, 65 Mont. 414, 211 Pac. 353.) In the concluding sen- tence of section 6903, “In all such actions writs of attachment may issue as in other cases,” the words “such actions” refer to the actions to cancel oil and gas leases of record in which either the statutory penalty or damages for the failure of the lessees to remove a cloud from the owner’s title is or both are sought to be recovered, — in other words, to actions arising out of torts; hence to say that an attachment may be procured only in an action upon a contract, express or implied, for the direct payment of money, would nullify completely this declaration of section 6903, which the legislature was authorized to make and did make. The phrase, “as in other cases,” manifestly refers to the time at which the writ may issue and to the effect which it has when issued. Thus construed, the general statute and special enactment are harmonized and full effect is given to each.
It is not an available argument to say that sections 6902- 6904 do not provide for a form of the affidavit which must be filed, for section 8882 provides: “When jurisdiction is, by the Constitution or this Code, or any other statute, conferred on a court or judicial officer, all the means necessary to carry into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
The courts are not at liberty to disregard the plain language of a valid legislative enactment, and, when section 6903 declares that a writ of attachment may issue in an action of this character, it must be held to mean just what it says.
The order is reversed.
Reversed.
Mr. Chief Justice Callaway and Associate Justices Rankin and Stark concur.
Mr. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
|
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PER CURIAM.
Relator’s application for writ of injunction herein, is denied.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1915 Mrs. Margaret McIntyre owned a large amount of property in Hill county, including lot 12 and the west half of lot 13 in block 9, original town site of Havre, npon which parcels of ground was situated the McIntyre Opera House. In December, 1915, she leased the opera house to Koemer & Needham for the term of three and a half years at a rental of $100' per month. Later during the term W, H. Wheeler became the assignee of the lease, kept the covenants and continued in possession of the building. In October, 1916, Mrs. McIntyre sold lot 12 and the west half of lot 13 to the Security State Bank for $15,000, reserving the ppera house building, which she agreed to remove in the spring of 1917, bnt when she undertook to carry out the agreement Wheeler secured an injunction which restrained her from removing it until the expiration of the lease. (Wheeler v. McIntyre, 55 Mont. 295, 175 Pac. 892.) Abont November, 1917, a controversy arose between the bank and Mrs. McIntyre over the title to the building, and, to protect his lease, Wheeler filed a bill of interpleader and-under an order of court paid the rental into court. That action was not determined until January 3, 1920, when a judgment was entered which awarded the building to Mrs. McIntyre and to the bank $100 per month as ground rental for the time it was kept out of possession of the lots after November 1, 1917. The building was finally removed October 15, 1922. In the meantime Mrs. McIntyre conveyed property to her daughter Laura, as follows: November 23, 1918, her real estate and two dwelling-houses, all of the aggregate value of $27,500 or more; January 14, 1919, $7,000 in cash, and December 10, 1919, the opera house building which then had a value of approximately $1,000.
On March 31, 1920, Mrs. McIntyre died intestate, leaving an estate valued at $300. Her only heirs were her daughters Laura and Emma (Mrs. Des Rosier), and her only indebtedness, that due to the bank for ground rental as indicated above. Laura McIntyre was appointed administratrix of her mother’s estate and in due time gave notice to creditors. The bank presented its claim which was rejected in part. .Within the statutory period it instituted an action and such proceedings were had therein that a judgment was rendered in its favor for $5,445.55, which amount was adjudged to be a valid claim against the estate. Nothing was paid on the judgment, and it appearing that there were practically no funds in the estate, this action in the nature of a creditor’s bill was commenced to subject to the payment of the bank’s claim the property transferred by Mrs. McIntyre to her daughter Laura. The trial of the cause resulted in a judgment in favor of the bank, and from that judgment Laura McIntyre prosecuted this appeal.
The trial court found that Mrs. McIntyre transferred her property to her daughter with the intention to defraud the bank and hinder and delay it in the collection of its claim, and that Laura McIntyre knew all of the facts and entertained the same fraudulent intent. It is the contention of the appellant that the evidence does not sustain this finding.
Although at the time the opera house building was transferred, the controversy between Mrs. McIntyre and the bank over the title to it had not been determined, Mrs. McIntyre did know that she had not delivered possession of the lots sold to the bank as she had agreed to do; that from the very nature of the case the bank had a just claim against her for reasonable ground rental, and that this claim would be augmented from month to month until the building was removed. Under these circumstances she was a debtor to the bank within the meaning of section 8598, Revised Codes, and the bank was her creditor. (See. 8599.)
Our theory of property rights has its foundation in the principle that, as a general rule, everyone has dominion over his own property and may make any disposition of it which accords with his own goodwill and pleasure and does not exceed the limits prescribed by law. He may sell it or give it away and is not deprived of his dominion over it or of his power to control it, merely by reason of the fact that he is indebted or even insolvent. It is only when he disposes of his property in fraud of his creditors that the law takes cognizance of his transactions.
Section 8603, Revised Codes, so far as applicable here, provides: “Every transfer of property * * * made * * * with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor,” etc. It is the fraud ip the transaction, and not the fact of indebtedness, which gives rise to an action to set aside the conveyance and subject the property to the creditor’s claim. But, except as otherwise provided in section 8604 — a statute with which we are not now concerned — “the question of fraudulent intent is one of fact and not of law” (sec. 8606); and since fraudulent intent is the result of mental process, there are generally no means by which to ascertain whether it exists except by considering the acts of the parties engaged in the transaction "and making proper deductions therefrom in accordance with principles which have been established by common observation and experience. Experience has demonstrated that certain acts have fraudulent aspects and .for convenience they are referred to in the books as “badges of fraud.” Financial embarrassment, heavy indebtedness and insolvency are generally classed as badges of fraud, with inadequacy of consideration, false recitals, concealment, and the like.
1. Insolvency: Though decided cases are to be found to the contrary, we agree with counsel for appellant that the great weight of authority supports the rule that a creditor who is not injured thereby may not complain of any disposition which his debtor makes of his property. Fraud without injury or injury without fraud will not support an action of this character; unless they coexist, the courts will not render relief. (Kennedy v. Bank, 107 Ala. 170, 36 L. R, A. 308, 18 South. 396.) Common sense seems to compel the conclusion that if the debtor retains ample property subject to seizure and fair sale within the same jurisdiction, any conveyance of other property by him cannot amount to fraud on his creditor and no inference of an intent to defraud can be drawn therefrom. (Albertoli v. Branham, 80 Cal. 631, 13 Am. St. Rep. 200, 22 Pac. 404.)
In Bigelow on Fraudulent Conveyances, 210, the rule is stated as follows: “It is not enough, even for a prima facie case, if we accept the more general doctrine, to show that the grantor, being in debt, made a voluntary alienation. Indeed, to show that a man was deeply in debt when he made a gift is in itself nothing, for he may still have, after the gift, ample means out of which payment may be enforced. The evidence should go so far as to show that the grantor was either “alieno aere prae gravatus, weighted down, embarrassed with debt, or in debt to such an extent that to withdraw the property in question from the claims of creditors would defeat or delay them.”
Likewise the rule has been deduced that to state a cause of action for setting aside a conveyance as fraudulent, facts must be alleged showing that the conveyance was made in such manner and under such circumstances as to have that effect; hence it must be made to appear that at the time the conveyance was completed, the debtor did not have other property subject to immediate seizure out of which the debt could be satisfied. (Bump on Fraudulent Conveyances, 4th ed., 548; 2 Moore on Fraudulent Conveyances, 851; 12 R. C. L. 661.) In this instance the sufficiency of the complaint is not questioned.
It is the general rule, also, that where several conveyances of property are made by a debtor at different times, the fact that one of them is executed with intent to defraud credi tors will not render the others void, if they are separate and independent transactions. But it is otherwise if they are so interrelated as to constitute parts of the same transaction, and particularly if made to the same grantee. (27 C. J. 466.)
Mrs. McIntyre disposed of her property to her daughter by three transfers, the first and second of which disposed of practically all of it and were made within less than two months. Although the trial court did not make any specific finding that the three transfers were in fact but parts of one transaction, it did treat them as one, and in the brief of appellant they are apparently so treated. If, however, a finding that they were but parts of one transaction were necessary to sustain this judgment, the case would be treated as though the finding had been made, under the doctrine of implied findings which prevails in this jurisdiction. (Thomas v. Ball, 66 Mont. 161, 213 Pac. 597.)
If, then, the conveyance of Mrs. McIntyre’s property to her daughter is to he deemed to be completed upon the transfer of the opera house building, no difficulty whatever is experienced upon this phase of the case; for at that time (December 10, 1919) she had withdrawn all money from the plaintiff bank. She had remaining her claim upon the $2,600 then in the custody of the court, representing the rentals which Wheeler had paid on the opera house building, and her indebtedness to the bank then accumulated amounted to $2,600 and was increasing constantly at the rate of $100 per month. It is not sufficient to say that the money in court was later adjudged to belong to Mrs. McIntyre and in amount was equal to her then accumulated indebtedness to the bank. The law looks to practical results, and a solvency which it cannot subject to the payment of the debts of an unwilling debtor is not distinguishable from absolute insolvency so far as practical results are concerned. (Adams v. Prather, 176 Cal. 33, 167 Pac. 534.) Hence the rule that to avoid a decree setting aside a conveyance as fraudulent it must appear that the property retained by the debtor was sufficient in amount, easily accessible and subject to immediate attachment or execution at the suit of a creditor. (27 C. J. 552; 12 R. C. L. 661.)
It is elementary that money or other property in custodia legis is not subject to- seizure by ordinary legal process, and it is equally true that money deposited in court by order of court to abide final determination as to its ownership is in the custody of the law. (Mattingly v. Grimes, 48 Md. 102; Corbitt v. Farmers’ Bank, 114 Fed. 602.) So that we may dismiss from .further consideration the claim that Mrs. McIntyre retained the money paid into court by Wheeler, for until the interpleader action was finally determined the title to that, money was in litigation.
If, then, this claim upon the deposit in court constituted the only property retained by Mrs. McIntyre, the trial court was fully justified in finding that by conveying the properties mentioned above she rendered herself absolutely insolvent so far as the bank was concerned.
But appellant contends that her mother retained other property. She testified that at the time the opera house building was transferred to her, Mrs. McIntyre had $2,500 on deposit in the Farmers’ State Bank of Havre, and also had from $1,200 to $1,500 in cash on her person. But the trial court refused to accept this testimony as sufficient to establish the fact sought to be established by it. Under the situation most favorable to her, appellant would be compelled to sustain the burden of showing that the evidence preponderates clearly against the trial court’s finding. (Hartnett v. Sterling, 67 Mont. 46, 214 Pac. 330; Richardson Grain Separator Co. v. Valier Elevator Co., 67 Mont. 227, 215 Pac. 237; Wood v. Robbins, 67 Mont. 409, 215 Pac. 1101.) However, appellant is not in the most favorable situation; indeed, she is not in a position to ask this court to give any consideration whatever to the evidence. Subdivision 3, Rule YII of the Rules of this court provides: “In equity eases and in matters and proceedings of an equitable nature, wherein questions of fact arising upon the evidence presented in the record are to be submitted for review by this court, the testimony relating to such questions shall be presented by question and answer.” In this instance all of the evidence is presented in narrative form.
In Koopman v. Mansolf, 51 Mont. 48, 149 Pac. 491, this court said: “The purpose of the rule is to require appellant in equity cases and proceedings of an equitable nature, to present to this court the evidence involving controverted questions of fact, in the exact words of the witnesses, to the end that the duty imposed upon the court by section 6253 of the Revised Codes [see. 8805, Rev. Codes, 1921] may be properly discharged. Speaking generally, observance of the rule is imperative, for, as has been frequently pointed out, the statute requires this court, in the review of questions of fact in this class of cases, to assume, as nearly as may be, the position of the trial court and to make its examination accordingly. The extent of the review is necessarily limited by the fact that an important item of testimony, viz., the appearance and demeanor of the witnesses, cannot be embodied in the record. Hence due allowance must always be made for the difference between the probative value of the testimony as delivered by the living witness and the testimony of the witness as it is presented in the printed record.”
Because of the failure or refusal to observe the rule, appellant is not entitled as of right to have the evidence considered for any purpose (Gilmore v. Ostronich, 48 Mont. 305, 137 Pac. 378); and under the most liberal view we are obliged to place greater reliance upon the trial court’s findings than otherwise would be necessary. (Officer v. Swindlehurst, 41 Mont. 126, 108 Pac. 583.)
In Wilson v. Harris, 21 Mont. 374, 440, 54 Pac. 46, 69, Mr. Justice Hunt observed aptly: “The jury and the judge of the district court saw the witnesses and heard them testify. This is of the greatest advantage, especially in cases of alleged fraud.”
Notwithstanding appellant testified to the existence of this asset amounting to from $3,700 to $4,000, she was unable to say what became of the money, except that her mother spent it, although she had managed her mother’s business for many years and because of physical infirmities Mrs. McIntyre was unable to draw a check after December 14, 1919. Furthermore, it will be borne in mind that appellant was the sole beneficiary of her mother’s bounty. She had received property valued at from $35,000 to $45,000 under the circumstances narrated. She alone was interested in maintaining the integrity of the transaction and she alone would be affected adversely if the conveyance were set aside. Under these circumstances the language of this court in Reid v. Hennessy Mercantile Co., 45 Mont. 383, 123 Pac. 397, becomes peculiarly pertinent. The court said: “A trial court is not bound to believe all the testimony that it hears. The appearance and demeanor of the witnesses, their manner of testifying, and the probability or improbability of the truth of their statements are all to be considered in connection with the other facts and circumstances in the case. When the statements of witnesses, although positive, and not directly contradicted by other witnesses, are improbable, contradictory and inconsistent in themselves, when they relate to alleged transactions with persons who by death or absence are unable to dispute them, when the witnesses are directly and pecuniarily interested in the result of the controversy, and their testimony may furnish the basis for a recovery in their favor, and the attendant circumstances are such as to cast suspicion upon the entire transaction as narrated by them, the court may disbelieve such witnesses and disregard their testimony.”
We cannot say, and appellant is not in a position to ask us to say, that the evidence preponderates against the finding that at the time Mrs. McIntyre completed the transfer of the property mentioned she was insolvent, and if insolvent, the court was justified in treating the insolvency as a badge of fraud.
2. Inadequacy of consideration: In answer to the charge of fraud contained in the complaint, appellant in her answer undertook to plead adequate consideration for the transfer of the property to her. She alleged that at divers times between November 2, 1907, and October 26, 1918, she advanced money to her mother to discharge indebtedness against her mother’s property, to improve the property and pay taxes and insurance, in amounts aggregating $9,000; and also advanced to her mother $5,000 to erect a residence building; that she furnished support for her mother up to the time the transfer was made and promised to support her as long as Mrs. McIntyre lived; that she managed her mother’s business for many years, and in order to do so and to furnish the proper support, it was necessary that she forego, and she did forego marriage though she had the opportunity to marry. She alleges that all these acts and things were done and performed by her at the special instance and request of her mother.
These several items, together with the love and affection of her mother for her, constitute the consideration relied upon. It is now conceded, however, as it must be, that an agreement for future support is not a valid consideration for the transfer as against the claim of an existing creditor (Officer v. Swindlehurst, above; 27 C. J. 530); and a contract in restraint of marriage of any other person than a minor is void; (Rev. ’Codes, sec. 7562.)
Notwithstanding the condition of the record and respondent’s objection to our considering the evidence for any purpose, we have reviewed it so . far- as it touches upon this subject. It is fairly deducible therefrom that between November, 1907, and October, 1919, Laura McIntyre earned substantially $15,500, and that aside from the necessary expense of her own living, she contributed this amount to her mother, probably as loans or advances. She -testified that she furnished the entire support for her mother during that period, though the actual cost or reasonable value of the support is not given. The evidence discloses, however, that during the same' period Mrs. McIntyre had an income from rentals amounting approximately to $17,000, and that she received from the sale of the lots- to the bank the further sum of $15,000 in cash., Appellant testified that she managed her mother’s business for many years, but the value of her services is not given. It is made manifest that such services occupied but a small portion of her time, as she was engaged in the regular employment of others. At best appellant is unable to show that the consideration for the transfer of the property to her exceeded one-half the value of the property; and in any event she has failed to convince us that the evidence preponderates against the finding that the consideration was grossly inadequate.
So far as the transfer depends upon the consideration of natural love and affection, it is to be treated merely as voluntary. (27 C. J. 527.)
3. Relationship of the parties: While it is true that the mere fact of the relationship of parent and child existing between Mrs. McIntyre and Laura McIntyre is not a badge of fraud (Wilson v. Harris, above), it is the general rule that transactions between near relatives are subject to the most rigid scrutiny, and the fact of such relationship is to be considered with other evidence as reflecting the intention with which the transfer was made. (Lambrecht v. Patten, 15 Mont. 260, 38 Pac. 1063; Shepherd v. First Nat. Bank, 16 Mont. 24, 40 Pac. 67; 27 C. J. 495.) The rule and the reason for it are stated aptly 'by the supreme court of Virginia, as follows: “As fraud is generally accompanied by a secret trust, the debtor usually selects some person in whom he can repose secret confidence. And as this trust and confidence is more likely to exist between relatives, or those who occupy confidential relations, their transactions with each other, when fraud is charged, will be more closely scrutinized.” (Ford v. Chelf, 112 Va. 98, 70 S. E. 500.)
The record then presents the case as follows: Mrs. McIntyre, indebted to the bank and having property of the value exceeding $35,000 immediately available to the satisfaction of her indebtedness, transferred all of her property to her daughter for a consideration which did not exceed one-half its value, leaving the bank without any direct means of satisfying its claim. That these facts are sufficient from which to draw the inference of an intention on the part of Mrs. McIntyre to defraud the bank and to hinder.and delay it in enforcing its claim, finds support in the authorities generally (27 C. J. 791); and under the circumstances of this case the same facts, coupled with the fact that Laura McIntyre had been her mother’s confidential adviser and business manager for many years and was intimately familiar with her mother’s business, afford ample grounds for the trial court’s finding that appellant participated actively in perpetrating the fraud.
Rehearing denied September 9, 1924.
The fact that Laura McIntyre was her mother’s creditor at the time the transfer was made does not militate against the finding. While it may be stated broadly that a debtor is at liberty to prefer one creditor over another (sec. 8601, Rev. Codes), the general rule is that where he transfers to one creditor in payment of that debt property the value of which is greatly in excess of the debt, this circumstance is a badge of fraud affording strong evidence thereof (Sukeforth v. Lord, 87 Cal. 399, 25 Pac. 497; Clark v. Bell, 40 Tex. Civ. App. 39, 89 S. W. 38; Reilly v. Barr, 34 W. Va. 95, 11 S. E. 750), and a fortiori, when coupled with other circumstances such as the preferred creditor’s knowledge of the debtor’s insolvency and the fact that the debtor disposed of all his property (27 C. J. 537).
We do not find any reversible error in the record, and accordingly the judgment is affirmed.
Affirmed.
■ Mr. Chief Justice Callaway and Associate Justices Galen and Stark concur.
Mr. Justice Cooper, being absent, did not hear the argument and takes no part in the foregoing decision.
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] |
HONORABLE JOSEPH R. JACKSON, District Judge,
sitting in place of MR. JUSTICE RANKIN, disqualified, delivered the opinion of the court.
Defendant was tried under indictment for the crime of grand larceny. -At the close of the state’s case the trial court granted defendant’s motion to dismiss, and from this order appeal is taken.
The record discloses that about May 1, 1918, Henry and Johanna Hagen, husband and wife, were loaned by the Banking Corporation of Montana the sum of $16,000, to secure the payment of which a mortgage on an apartment house in Fort Benton, Montana, was given by them. Thirty-two bonds, numbered 1 to 32, inclusive, were issued against this mortgage, in the sum of $500 each, maturing by pairs in numerical order on the first day of November and of May of each year until final payment, due May 1, 1926. The bonds were payable to the Banking Corporation of Montana, trustee, or bearer. Two of these bonds, numbered 19 and 20, respectively, maturing May 1, 1923, were purchased by Mrs. Ida Tund Byers on or about May 1, 1918, and she was still the owner of them down to and including the day of the trial.
About March 23, 1923, the mortgage was paid and a satisfaction thereof, executed on behalf of-the bank by the defendant as president and O. A. Tweed as secretary, and sealed with the seal of the bank, was given to the mortgagors, bearing date March 19, 1923, and recorded in Chouteau county on March 24, 1923. The money received in satisfaction of the loan was checked off to the various persons holding the unpaid bonds, including $1,035 to Mrs. Byers, in the form of cashier’s cheeks and dated March 28, 1923. These cashier’s checks, with the exception of one in the amount of $535, were all found in the bank unpaid after May 2, 1923, on which day the bank ceased to function.
On April 7, 1923, the defendant wrote Mrs. Byers as follows: “My Dear Mrs. Byers: The next semi-annual interest payment date on the above bonds will be May 1. Arrangements have been completed for paying the loan off as soon as the bonds can all be gathered in. You will please turn your bonds in to us at your convenience and within the next ten; days or two weeks so that the details can be completed.”
On April 12 Mrs. Byers brought her bonds to the bank for collection. She talked with the- defendant, who said nothing of the mortgage having been paid in full. He did not deliver to her the cashier’s check, but instead a receipt for the bonds.. She never did receive any part of her money, save the ten percent dividend from the receiver in December, 1923.
For the purpose of proving criminal intent, evidence was introduced regarding a MeCaully-Speneer bond issue, which was handled in the same manner as the Hagen loan.
But one question is presented, and that is: Did the state produce sufficient evidence -to go to the jury?
The defendant urges in his brief that four things were essential for the state to prove, namely: First, that title to the property appropriated stood in another person; second, that the defendant took or appropriated the property to his own use and benefit, or the use and benefit of another; third, that the true owner was deprived of the said property; fourth, and in addition that the defendant took or appropriated the property to his own use or the use of another with the fraudulent intent at the time of taking to deprive the owner thereof, not temporarily but permanently, and if the facts established indicate that it was not the intention of the defendant to permanently deprive the owner of the said property, then the said defendant is not guilty of larceny.
In support of this contention, the case of State v. Wallin, 60 Mont. 332, 199 Pac. 285, appears to be the chief authority cited. ' The facts here are so totally at variance with those of the Wallin Case that it is not necessary in this opinion to attempt to set forth the distinction.
There can be no question but that the title to the amount of money as shown by the cashier’s check stood in Mrs. Byers. Neither can it be gainsaid that she was deprived of this property, and its use and benefit went to another. As to the fraudulent intent of the defendant to permanently deprive the true owner of the property, the cashier’s check of March 28, the letter of the defendant of April 7, his subsequent conversation with Mrs. Byers on April 12, wherein he made no mention of the loan having been paid and when, instead of handing her the cashier’s cheék already in her name and which was never delivered to her, he took the bonds and had issued a receipt, the evidence received concerning the McCaully bond issue — all with certainty establish a sufficient case for the deliberations of a jury.
Accordingly, the order appealed from is reversed and the cause remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Callaway, Associate Justices Hollo, way and Stark and Honorable Frank P. Leiper, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
|
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] |
PER CURIAM:
This is an original proceeding against the Attorney General óf Montana for contempt of court by reason of his alleged violation of an order of this Court prohibiting “* * * all public out-of-court statements that may conceivably influence public opinion for or against any person or issue * * * ” in pending criminal prosecutions involving workmen’s compensation matters.
The background of the present proceeding indicates that for some time prior to June 11, 1976, many charges and counter-charges by the attorney general’s special prosecutors on the one hand and various defense attorneys on the other relating to pending criminal prosecutions involving workmen’s compensation matters were being widely disseminated throughout Montana by means of out-of-court statements to the detriment of fair and just legal proceedings therein and that such actions were rapidly approaching a crisis.
On June 11, 1976, the attorney general called a press conference in which he charged three named district judges in pending cases with voluntary actions resulting in “substantial delays” in bringing the defendants to trial and that the workmen’s compensation investigation and prosecution “is one of the sad chapters in Montana history and, if not turned around, is going to be a sad chapter in the history of the judiciary” because of dilatory actions by lawyers for the defendants and the lack of firmness by many of the judges. At this press conference one of the attorney general’s special prosecutors announced that he was resigning because of “substantial delays” resulting in his prosecuting only one case in 10 months and charging there was almost “an incestuous relationship” between a small number of judges and some lawyers.
At said press conference the attorney general called .hpon this Court “to take hold of the matter” by calling in the judges, defense lawyers and prosecutors and making it clear to them “that they should get on with the business of the day which is to get these cases to trial.”
That in response to the attorney general’s complaints and request and in view of the rapidly deteriorating relationship between the attorney general and his prosecutors on one side, defendants and defense counsel on another side, with a number of trial judges in the middle, this Court called a conference of prosecutors, defense counsel, and presiding judges by its order of June 14, 1976, and provided, among other things:
“That in order to prevent further injury to the rights of the public, the state, the defendants and the judiciary pending the conference herein provided, all counsel, their staffs, clerks, stenographers and attaches are ordered and directed to refrain directly or indirectly from public comment in any way relating to the litigation heretofore described.”
and
“Any violation of this order shall subject the offender to proceedings for contempt of court.”
The conference was held in the courtroom of this Court on June 21, 1976. The attorney general and members of his staff were present and participated. At said conference, among other things, this Court, through the Chief Justice, explicitly stated:
“Finally, the objectives that we are prepared to insist upon can be stated in the following charge to each of you. First, accord this litigation its rightful paramount priority. ■ Second, bring these cases to trial with all deliberate speed. Third, cease and desist from all public out-of-court statements that may conceivably influence public opinion for or against any person or issue relating to this pending litigation. Fourth, each of you will be held responsible for your own conduct in accomplishing these objectives. * * *”
On August 12, 1976, at a meeting of the Kiwanis Club in Sidney, Montana, the attorney general, a candidate for governor, spoke for approximately 10 minutes at which time he made no remarks concerning the workmen’s compensation criminal prosecutions. That thereafter certain questions from the audience were directed to him regarding the workmen’s compensation litigation. That the attorney general asked if there were any members of the press present and then proceeded to publicly blame three other district judges from those named at his press conference of June 11 for some of the prosecution’s difficulties; that all three judges were appointed by former Governor Forrest Anderson; implied that these judges were looking out for the interest of the former democratic governor and his friends; and went on to tell how he was trying to get the cases tried quickly but the three judges and the lawyers representing the defendants had been filing numerous unwarranted motions and dragging their feet to stall the trials past election time. The attorney general indicated that he realized he was making the type of comments that are frowned upon by the Supreme Court and mentioned this Court’s order against public comment on the cases.
After this matter came to the attention of this Court, we issued an order and citation to the attorney general to appear and show cause why contempt proceedings should not be instituted against him. The attorney general appeared, admitted the substance of events and statements giving rise to our order and citation, but denied that they were intended to or did constitute contempt. Following hearing, this Court by order of September 7, 1976, directed that contempt proceedings be instituted against the attorney general • and designated attorney Charles F. Angel to institute such proceedings.
On September 28, 1976, contempt proceedings were instituted by the filing of an affidavit for contempt by Mr. Angel. The attorney general responded on October 7, by filing a motion to quash and dismiss the proceeding and an answer to the affidavit for contempt. Briefs were filed, testimony was taken, exhibits were offered in evidence, oral argument was had and the matter was submitted for decision on October 14, 1976.
The attorney general attacks the contempt proceeding on these principal grounds: (1) That there was no court order in effect at the time he made his statements at the Sidney Kiwanis meeting; (2) if a court order did exist, it was unconstitutionally vague, indefinite, and ambiguous; (3) that the court order he is accused of violating is in itself a violation of the free speech, due process, equal protection and separation of powers provision of the federal and state constitutions.
To reach the merits- of this case, we make the following preliminary rulings heretofore taken under advisement: (1) Relator’s exhibit A (the newspaper article of June 11, 1976, in the Independent Record) is admitted in evidence; (2) respondent’s exhibits B through F (newspaper articles) are admitted in evidence; (3) all motions to quash or dismiss this proceeding are denied.
We make the following findings of ultimate fact:
(1) This Court’s orders of June 14 and June 21 and the conference of June 21 were made and held on the basis of complaints and at the special instance and public request of the attorney general.
(2) That at no time has the attorney general applied to this Court for relief from the orders of June 14 and June 21 on any grounds.
(3) That the attorney general willfully, knowingly and deliberately violated the order of this Court of June 21 directing him, among others to “cease and desist from all public out-of-court statements that may conceivably influence public opinion for or against any person or issue relating to this pending litigation” by reason of his statements and remarks at the Kiwanis meeting of August 12 in Sidney, Montana.
(4) That the circumstances existing on June 14 and June 21 presented a clear and present danger to the proper functioning of the judicial processes of this state and the rights of its citizens, the defendants, and the investigation and prosecution of criminal cases involving workmen’s compensation matters, and that remedial action was necessary and required of this court.
(5) That the orders of this Court of June 14 and June 21 were made in response thereto.
We conclude as a matter of law:
(1) That the orders of this Court on June 14 and June 21 were within its jurisdiction and authority pursuant to Art. VII, Section 2 of the 1972 Montana Constitution and were in all respects valid and legal;
(2) That the due process, equal protection, separation of powers and freedom of speech provisions of the state.and federal constitutions were not violated by the order of this Court of June 14 and June 21, 1976, under the unique and compelling circumstances of this case.
(3) That the remedy for any alleged prejudice to the attorney general’s political campaign lies in applying to this Court for relief from its order of June 21, which remedy has never been sought.
(4) That the attorney general is guilty of contempt of court pursuant to section 93-9801(5), R.C.M.1947, by reason of his willful, knowing and deliberate violation of this Court’s order of June 21 commanding him, among others, to cease and desist from all public out-of-court statements that may conceivably influence public opinion for or against any person or issue involved in pending criminal prosecutions involving workmen’s compensation matters.
On the basis of the foregoing findings of fact and conclusions of law, we enter judgment as follows:
(1) The attorney general is hereby adjudged guilty of contempt of court.
(2) That'a fine of $250 is assessed as a penalty.
(3) That the attorney general may purge himself of contempt of court by agreeing in open court within 10 days of the date hereof that in the future he will abide by the order of this Court of June 21 until the same is altered, amended or revoked by proper legal proceedings and according to law.
MR. JUSTICE CASTLES
is absent at the time of the preparation of this Opinion and has taken no part therein. He will have the opportunity to express his views later.
|
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] |
MR. JUSTICE DALY
delivered the opinion of the Court.
This is an appeal from a judgment of the district court, Lewis and Clark County. The judgment affirmed a decision of the Superintendent of Public Instruction, upholding the decision of the County Superintendent of Schools, Fergus County, in the matter of the dismissal of Wesley A. Lindgren by the Board of Trustees of School District No. 1, Fergus County.
Appellant was employed as an industrial arts and math teacher at Fergus County High School. He had had teaching contracts with Fergus County School District No. 1 for fourteen consecutive years and was a tenure teacher. On April 2, 1973, the Board of Trustees of School District No. 1, hereinafter referred to as the Trustees, offered appellant a contract to teach for the 1973-74 school year; he signed and returned the contract on April 30, 1973.
On April 14, 1973, appellant was arrested and charged with the violations of driving while under the influence of intoxicating liquor (third offense) and driving without a valid driver’s license. He plead guilty to these charges. Imposition of sentence was deferred for one year upon condition that appellant complete the Alcohol Rehabilitation and Treatment Program at the state hospital at Galen and thereafter regularly attend meetings of Alcoholics Anonymous for a period of one year. These conditions were satisfied and on March 7, 1975 appellant was allowed to withdraw his guilty plea and the charges were dismissed.
On August 13, 1973 the Trustees resolved that a letter of dismissal be sent to appellant based upon his being “convicted” for driving while under the influence of intoxicating liquor and driving without a valid driver’s license. A letter of dismissal and notification of hearing was dispatched to appellant by the chairman of the Board of Trustees.
The Trustees convened on August 27, 1973, and appellant appeared and submitted to the Trustees a proposal asking them to consider a written agreement which would allow him to continue teaching. This hearing was recessed until August 29, 1973. When the parties failed to reach an agreement at the second hearing, the Trustees moved that a hearing be held on September 4, 1973.
On August 31, 1973, the chairman of the Trustees addressed a letter to appellant amending the grounds for appellant’s dismissal, listing additional basis for dismissal, and offering appellant additional time for preparation to meet the new charges. The Trustees convened on September 4, 1973, and upon motion adopted and ratified the amended and consolidated notice for dismissal.
Appellant appeared before the Trustees on September 4, 1973, and objected to the amended letter of dismissal. He demanded that hearing be based upon the initial letter of dismissal dated August 15, 1973. Appellant withdrew from the hearing when the Trustees indicated the hearing would be based upon the charges contained in the amended letter of dismissal. Subsequent to appellant’s withdrawal, the Trustees resolved that appellant was dismissed, based upon charges contained in the amended letter of dismissal.
Appellant appealed his dismissal to the County Superintendent of Schools and requested a determination limiting the scope of the hearing. The County Superintendent of Schools ordered the scope of the hearing to include those charges set forth in the amended letter of dismissal and set the hearing for September 21, 1973.
On September 18, 1973, appellant petitioned the district court, Fergus County, for a writ of prohibition, writ of mandate or other appropriate writ restraining the County Superintendent of Schools from proceeding to hearing on the charges. The district court issued, and subsequently dismissed, an alternative writ of mandate and prohibition directed to the County Superintendent of Schools and the Trustees.
Appellant petitioned this Court for a writ of supervisory control on September 26, 1973, and asked that the district court order dismissing the alternative writ be overruled. This Court dismissed the petition, Lindgren v. District Court, 162 Mont. 548, 514 P.2d 767.
The County Superintendent of Schools heard appellant’s appeal on October 2, 1974, and affirmed the Trustees’ decision to dismiss appellant.
Appellant appealed to the State Superintendent of Public Instruction who entered a decision holding there was substantial evidence supporting the findings of the County Superintendent of Schools based upon the amended letter of dismissal. The district court of Lewis and Clark County affirmed the decision of the State Superintendent of Schools and from that final judgment Lindgren appeals and presents two issues for review:
1. Did the Board of Trustees of High School District No. 1, Fergus County, dismiss appellant in accordance with the laws of the State of Montana?
2. Was there substantial evidence on the record to support the finding appellant was incompetent and unfit to teach under his 1973-74 school contract?
The first allegation of error concerns the procedural manner in which appellant was dismissed from his teaching duties. Sec tion 75-6107, R.C.M.1947, sets forth the applicable law in Montana pertaining to the dismissal of a teacher under contract:
“The trustees of any district may dismiss a teacher before the expiration of his employment contract for immorality, unfitness, incompetence, or violation of the adopted policies of such trustees. Any teacher who has been dismissed may in writing within ten (10) days appeal such dismissal to the county superintendent; following such appeal a hearing shall be held within ten (10) days. If the county superintendent, after a hearing, determines that the dismissal by the trustees was made without good cause, he shall order the trustees to reinstate such teacher and to compensate such teacher at his contract amount for the time lost during .the pending of the appeal.”
Section 75-5930, R.C.M.1947, provides in pertinent part:
“No business shall be transacted by the trustees of a district unless it is transacted at a regular meeting or a properly called special meeting.”
See: Wyatt v. School District No. 104, 148 Mont. 83, 417 P.2d 221.
It is appellant’s contention the Trustees’ act of dismissal is legally ineffective. He reaches this conclusion by construing the Trustees’ initial letter of dismissal in combination with the amended and consolidated letter of dismissal as a single notice to dismiss. Appellant argues that section 75-5930, R.C.M.1947, requires that the amended letter of dismissal “be transacted at a regular meeting or properly called special meeting” of the Trustees. Appellant concludes the attempt to discharge him is void since the amended letter of dismissal was merely adopted and ratified by the Trustees rather than being transacted at the meeting. We find this argument without merit.
The initial letter of dismissal notified appellant he was dismissed and that his services would not be used during the 1973-74 school year. This initial letter based appellant’s dismissal on these grounds:
“* * * This action is taken because of your conviction on July 16, 1973 for driving while under the influence of intoxicating liquor, third conviction, and driving without a valid driver’s license. In addition these facts place you in violation of section 75-6108, R.C.M.1947, as amended which requires that ‘any teacher under contract with a district shall: conform to and enforce the laws * * * ’ ”
Our initial discussion concerns the basis upon which the trustees determined appellant should be dismissed. In the district court we find the minutes of the August 13, 1973 Trustees’ regular meeting. In these minutes appears this subtitle:
“LETTER OF DISMISSAL TO BE SENT TEACHER: Trustee Swift moved seconded by Trustee Tresch that a letter of dismissal be forwarded to Wesley Lindgren, teacher in Fergus High School, because of a D.W.I. and driving without a valid license and conviction on both counts. The motion carried.”
We conclude from this record that on August 13, 1973 at a regular meeting of the Trustees, it was resolved that appellant be dismissed from his 1973-74 teaching duties on the basis of appellant’s above mentioned violations.
Next, we determine whether the basis for dismissal utilized by the Trustees is legally sufficient for dismissal. Under section 75-6107, R.C.M.1947, the dismissal of a teacher under contract requires a showing of immorality, unfitness, incompetence, or violation of the adopted policies of the Trustees. The initial letter of dismissal failed to substantiate any causal relationship between appellant’s violations and his performance of teaching duties. This Court does not find, as a matter of law, that violations for driving under the influence of intoxicating liquor and driving without a valid driver’s license are tantamount to “immorality, unfitness, incompetence, or violation of the adopted policies of such trustees.” Absent such showing, the discharge of appellant amounted to a breach of contract. Hovland v. School Dist. No. 52, 128 Mont. 507, 278 P.2d 211.
Respondent Trustees contend appellant’s dismissal should be upheld based upon the amended and consolidated letter of dismissal which states:
“Since charges were initially brought against Mr. Lindgren, additional information has come to the board. For this reason, amended and consolidated notice for dismissal is given.
“The causes are: ‘immorality, unfitness, incompetence, and failure to conform to and enforce the laws * * (See sections 75-6107 and 75-6108, Revised Codes of Montana.) These causes grow out of Mr. Lindgren’s arrest for DWI and driving without a valid Montana driver’s license on April 14, 1973 and his conviction thereupon on July 16, 1973. In addition, the charges stem from Mr. Lindgren’s performance as a teacher in his school, particularly as to his poor relationship with students, his, lack of willingness to make adequate plan preparation, his failure to accept responsibility in the school, his lack of interest in the students, his failure to maintain adequate class supervision and discipline, his poor example to students, his failure to convey skills possessed by him to his students as he should, his failure to take proper care of the classroom and the property placed in his charge, and his arrival at school in a disheveled appearance, smelling of alcoholic beverages.”
Respondents argue the clear and unequivocal ratification of the amended and consolidated letter of dismissal is proper. Furthermore, they contend appellant was not prejudiced by the amended notice of dismissal. Respondents cite the holding of the district court as authority for the proposition that “so long as there is notice and opportunity for hearing the Board can amend its charges for dismissal prior to hearing as was done here”. We do not agree.
The additional charges alleged in the amended and consolidated letter of dismissal are derived from information which was available to the trustees at the time of the drafting of the initial letter of dismissal and at the time the Trustees accepted a new contract of employment for the 1973-74 year on April 30, 1973. This Court has already concluded the initial letter of dismissal did not establish legally adequate grounds for dismissal. To recognize the amended letter of dismissal as adequate in law would amount to submitting appellant to the burden of establishing the invalidity of charges propounded for the purpose of remedying legally inadequate charges. The Court concludes appellant incurred substantial legal prejudice when required to meet these additional charges.
In view of our determination of appellant’s first issue, further discussion regarding the sufficiency of the evidence is unnecessary.
The judgment of the district court is reversed and the cause remanded for the determination of emoluments due appellant pursuant to statute and case authority.
MR. CHIEF JUSTICE JAMES T. HARRISON and JUSTICES HASWELL and JOHN C. HARRISON, and JACK GREEN, District Judge, sitting for Justice Castles, concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by plaintiffs against thirty-sis' defendants, including appellant herein, to have adjudicated the rights of the parties, respectively, to the use of the water flowing in Flint creek, in Granite county. Appeals by the defendant James McGowan, from the decree and an order denying his motion for a new trial, have heretofore been heard and determined. (See Featherman v. Hennessy, 42 Mont. 535, 113 Pac. 751.) Reference is made to the opinion delivered on those appeals, for a statement of the issues tried. In his answer the appellant claims rights under separate appropriations, of different amounts at different dates, from April 1, 1870, up to October 6, 1883. No complaint is made of the action of the court in determining any of them, except the last, which consists of 1,500 inches, alleged to have been appropriated by appellant and one Dunkelberg on the date last mentioned, for the purpose of furnishing power to operate a gristmill, then owned by appellant and said Dunkelberg, but now, together with the water right, owned exclusively by the appellant, and to irrigate certain lands belonging to the appellant. So far as they concern this right, the findings and conclusions of the court are the following:
“Finding No. 1. * * * That each of the plaintiffs and each of the answering defendants herein, and they and each of their grantors and predecessors in interest, have since the respective dates of the several appropriations mentioned in these findings to the present time used the amounts of water mentioned in these findings, and which are found to have been appropriated and diverted by them and each of them, respectively, for irrigating their several lands and for mining, domestic and other useful purposes, and the use of said waters to the amount stated was and is necessary for the purposes mentioned. # * *
“Finding No. 49. * * * That on or about the 6th day of October, 1883, the defendant George W. Morse and his grantors and predecessors in interest appropriated and diverted from said Flint creek, by means of a ditch of sufficient capacity to carry the same 1,500 inches of the waters of said Flint creek, for the purpose of running a flourmill and a mill for chopping feed; and that said mill has since said time been operated by the said defendant George W. Morse about two weeks in June of each year, and in the months of September and October of each year. That the said waters so appropriated and diverted on October 6, 1883, were not appropriated or diverted or used for any other purpose than for operating said flourmill and mill for chopping feed; and after said use said waters flowed back into said Flint creek a very short distance below said mill, except that on or about April 1, 1905, the said defendant diverted and used about ninety inches of the said 1,500 inches of water for the purpose of irrigating certain lands belonging to him and described in his answer herein. And the use of said water must be confined in the future to such purposes and to the manner and times in and at which it has heretofore been used except that such may be changed to some other without injury to any other party to this action. "When the said George W. Morse is not using said water for the purpose of operating said mill, the said 1,500 inches of water so appropriated and diverted by him shall be available to any and all junior appropriators on said creek, excepting said ninety inches used by said defendant for irrigating his said lands, which said ninety inches of water the said defendant is and shall be entitled to for irrigating his said lands and as of date April 1,1905.
“Conclusions of Law. * * * 50. That the defendant George W. Morse, for the purpose of irrigating his said land and for other useful and beneficial purposes, is the owner and entitled to the use of 1,500 inches of the waters of said Flint creek as of the date of October 6, 1883, for the purpose of operating the mill mentioned in findings of fact No. 49. Reference is hereby made to said finding of fact No. 49 for the purpose of making it part of this conclusion of law No. 50, and for a more particular statement of the rights of said defendant Morse, and the manner and extent of his ownership and use of, in and to the said 1,500 inches of the waters of said Flint creek.”
The decree is in conformity with these findings and conclusions, and declares the restrictions subject to which all the parties are entitled to the use of the amounts awarded to them. It requires the appellant to limit the use of the 1,500 inches awarded to him subject to the rights of prior appropriators, to the times specified in finding 49 and exclusively for the purpose of generating power for his mill, except that, subject to a like restriction-in favor of other rights used for agricultural purposes, he is permitted to use ninety inches of this amount for agricultural purposes, dating the initiation of this right on April 1, 1905. The appeal is from the decree.
Contention is made that finding 49 is indefinite and uncertain by reason of the use of the word “about,” with reference to the time in the month of June of each year during which appellant’s use may continue, and hence is defective. It is also said that the finding is defective in that it does not designate what two weeks in the month of June the use may be had. There was no motion for a new trial. The record contains no bill of exceptions showing any objection to the findings, or request to have them amended in any particular. It consists of the judgment-roll alone. Section 6766, Revised Codes, declares that in no case shall a judgment be reversed for want of findings unless they shall have been requested as therein provided; and that when a case has been tried by the court, the judgment shall not be reversed on appeal for defects in the findings, or any of them, unless exception be made in the trial court because of such defect and the exception reserved in a bill. Section 6767 points out the mode by which the exception must be brought into the record. "While it is incumbent upon the trial court in every case tried without a jury to make findings, unless they are waived by the parties (Rev. Codes, secs. 6763, 6765; Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25), yet the party who fails to pursue the course pointed out in sections 6767, supra, and 6768 cannot complain either that the duty enjoined by section 6764 has been omitted, or that the result of an effort to perform it is defective. (Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447; Bordeaux v. Bordeaux, supra.) Therefore, though it be conceded that the finding is defective in the first particular complained of, the decree may not be reversed for this reason, if by any reasonable construction the finding supports it.
The word “about,” used in connection with expressions of distance, number, etc., ordinarily signifies “nearly, approximately, almost.” (Century Dictionary.) In the same connection, too, it is sometimes construed to mean “not exceeding.” (People ex rel. Bettner v. City of Riverside, 70 Cal. 461, 11 Pac. 759; Simpson v. New York etc. R. Co., 16 Misc. Rep. 613, 38 N. Y. Supp. 341; 1 Words and Phrases, 25.) When used in statements of courses and distances, if there are no other words rendering it necessary to retain it, it is discarded as without significance, and the course or distance, as the case may be, is taken as positively stated. (1 Words and Phrases, 21, 23, and citations.) Evidently the court intended to fix a definite time ■during and not to exceed which the use might continue, in the month of June; for no other words are used indicating that the intention was to state the time by way of estimate. Rejecting this word as without modifying force, the finding is made sufficiently specific as to the length of time. That the court did not specifically ascertain the portion of the month to which appellant’s use had theretofore been confined renders the finding and provision in the decree based thereon vague and indefinite; but appellant is not aggrieved by it, and hence is not in a position to complain. He is left to his own choice to select the time of use, subject only to the proviso that he does not exceed the limit of two weeks. The owners of subsequent rights on the stream above the point of appellant’s diversion might well insist that they cannot ascertain definitely during what portion of the month they must refrain from diverting water through their ditches, and thus avoid a violation of the injunction feature of the decree. This lack of definiteness does not affect the appellant, and, since the owners of these subsequent rights do not complain, this court must presume that they are satisfied with the findings as they stand.
Complaint is made that paragraphs 1 and 49 of the findings quoted are inconsistent in that, in paragraph 1, the court found in effect that appellant has since the date of his appropriation used his right continuously, whereas in paragraph 49 the use is limited to specific months during the year; and in that the use of ninety inches for agricultural purposes is found to have been initiated on April 1, 1905, thus postponing this amount of the right in point of time for twenty-two years, whereas it should have been assigned the date of the original appropriation. If we understand appellant’s counsel, his argument is that because of this inconsistency the findings do not furnish support to the decree. There is no inconsistency in the findings. Paragraph 1 is a general introductory finding, applicable to the rights of all the defendants, and is to be construed with the specific findings. Standing alone, it would be meaningless, because it does not make specific mention of any particular right, and becomes intelligible only when read in connection with the specific finding as to each separate right, including that of appellant described in parar graph 49. It might have been omitted altogether without affecting the sufficiency of the specific findings, which furnish ample support for the decree, even though it be conceded that these findings are inconsistent with it, as appellant insists. All of the findings must be construed together, and, if possible, such construction be given them as will sustain the decree; otherwise a general finding, inconsistent with the specific finding, must be rejected and the decree held to be supported by the specific finding. (Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. 614, 36 L. Ed. 330.) "What the facts are as shown by the proof, with reference to the use of the appropriation in question, of course we cannot know; but having found the facts as stated in paragraph 49, the court properly limited the use to the time and purposes for which appellant had made his appropriation and theretofore used it, subject to such changes only, as to the purpose and place of use, as could be effected without infringement of the rights acquired by others pending such use.
The right to the use of water in the streams of this state is public. “As between appropriators, the one first in time is first in right” (Rev. Codes, sec. 4845) ; but when the first appropriator has finished his use he must return the water to the stream, to be used by subsequent appropriators (Rev. Codes, sec. 4844). But though he may change the point of diversion or may use it for other purposes, his right to do so is subject to the well-settled rule that the change may not affect injuriously the rights of subsequent appropriators. (Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959; Head v. Hale, 38 Mont. 302, 100 Pac. 222; Kinney on Irrigation and Water Rights, sec. 234; Rev. Codes, sec. 4842.) Upon the facts found in paragraph 49 and in the conclusion based thereon, the court properly limited the original appropria tion to the purpose of generating power, with the right to change this use so as not to infringe upon the rights of others.
The use of ninety inches for agricultural purposes was found to have been initiated on April 1, 1905. This was a change of the original use and resulted in a consumption of the quantity so diverted to the new use, and therefore amounted pro tanto to a new appropriation. Such being the case, under the rule above stated, the court reached the proper conclusion, to-wit, that the right to use this amount for this purpose must bear the date at which the change was made.
There is some doubt, upon the record before us, whether or not all the adverse parties were properly served with the notice of appeal. In their brief counsel for respondents have submitted a motion to dismiss the appeal for this reason. The conclusion we have reached renders it unnecessary to consider and determine this motion.
The judgment is affirmed.
'Affirmed.
Mr. Justice Smith and Mr. Justice Holloway concur.
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] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
On June 1, 1906, Albert Lynes was employed by the Northern Pacific Eailway Company as a locomotive engineer, operating from Missoula west and particularly between the stations of De Smet and Eeid. His duty was to assist with his locomotive in drawing west-bound trains over the mountain.. On the morning of June 1 Lynes was ordered to attach his locomotive to the front of west-bound extra train No. 1300 and proceed westward. He was notified before leaving De Smet to meet east-bound extra train No. 1308 — of which the defendant Bell was the engineer in charge — at Beid, and, to effect the passage of the two trains, it was the duty of Lynes to take his train upon the siding at Beid, and he so understood the order. Immediately after Lynes’ train left De Smet, Bell’s train reached Beid, pulled past the station on the main line and stopped. The switch, by means of which Lynes’ train would be placed on the siding at Beid, was some 3,500 feet east of the station. From a point a considerable distance east of the switch to a point 200 feet east thereof the track, proceeds on a downgrade of about seventy-eight hundredths per cent, and near the switch assumes an ascending grade of about two and two-tenths per cent compensated. Near the switch there is a curve. Lynes proceeded to take his train westward from De Smet, but passed the east ¡switch at Beid and ran up the main line track until his locomotive collided with Bell’s. Immediately before the two trains came together, Lynes jumped from his locomotive and sustained injuries. He brought this action to recover damages against the railway company and Bell, and alleges negligence in the following particulars: (a) Negligence on the part of Bell in running his train past the station at Beid; (b) negligence on the part of the railway company in permitting Bell’s train to occupy a position on the main track east of the station; (c) negligence on the part of Bell and the crew of his train in failing to throw the east switch at- Beid so that plaintiff’s train would go upon the sidetrack; and (d) negligence on the part of the company in failing to give the plaintiff a caution card before he left De Smet. The defendants answered jointly, denying all the allegations of negligence charged, and pleading contributory negligence and assumption of risk. The trial of the cause resulted in a judgment in favor of plaintiff, and from that judgment and an order denying them a new trial the defendants have appealed.
1. It is insisted that the complaint does not state a cause of action. It is alleged that Lynes was injured as the result of his own act in jumping from the moving train, and it is urged that the complaint does not disclose that in jumping from his locomotive the plaintiff was free from contributory. negligence. The former decisions of this court, beginning with Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21, and concluding with Badovinac v. Northern Pacific Ry. Co., 39 Mont. 454, 104 Pac. 543, have established in this jurisdiction the exception to the general rule of pleading in negligence cases, vis., that where plaintiff’s own act is a proximate cause of his injury, he must allege and prove that in doing the particular act he was moved by those considerations for his own safety which would actuate a reasonably prudent person, similarly situated, to do as he did. In Kennon v. Gilmer, the excuse offered by the plaintiff for jumping from a rapidly moving coach was “apparent danger and fear of bodily injury.” This court held that the allegation was insufficient to relieve the plaintiff from the imputation of negligence on his part, and the reasons, given are there set forth. In the Badovinac Case the plaintiff alleged that he jumped from a moving train “because (1) it was dark and he could not determine that the train was moving at a great rate of speed; and (2) the brakeman directed him to jump,” and this pleading was likewise held insufficient, and the subject received consideration at great length. In the present instance the plaintiff, after alleging that he was deceived by the legend on the mile-post east of the switch and because of the character of his train ^nd the track, he ran past the switch and in Bell’s train, then continues: “That immediately before such collision, plaintiff recognizing that it was inevitable, jumped from his engine while so running, as aforesaid, to avoid being killed, and in so doing received grievous bodily injuries,” etc. In the Badovinac Case above, this court said: “In other words to show by his complaint that he was not guilty of contributory negligence he [plaintiff] must allege facts sufficient to show that he acted as a reasonably prudent person under like circumstances would have acted. This rule seems to be founded in reason. The standard of action in all such cases must be that “of a reasonably prudent person.”
In order, then, to determine whether the plaintiff has stated facts sufficient, it is only necessary to ask whether the jury could say from the facts pleaded, if supported by the evidence, that he did act as a reasonably prudent person under like circumstances would have acted. Assume that plaintiff went upon the stand and testified: “I realized that a collision between Bell’s train and mine was inevitable, and I jumped from my locomotive to save my life,” and that this was all the evidence upon the subject. Did he act as a reasonably prudent person would have acted under the circumstances? We undertake to say that no man or body of men could answer the question one way or another, because there are not sufficient facts upon which to base an answer or to form an opinion. If Lynes’ train was running fifty miles per hour, the question would doubtless be answered in the affirmative by everyone. If, on the other hand, his train was running at two miles per hour, a negative answer might be fully justified; while, if it was running four miles per hour, different persons might disagree as to the proper answer to be made. It will be observed that the complaint does not state the rate of speed at which plaintiff’s train was moving when he discovered Bell’s train, or how far away Bell’s train was when the discovery was made.
Nearly thirty years have elapsed since this court, in Kennon v. Gilmer, announced the rule applicable here, and there can scarcely be any excuse offered at this late day for disregarding the law as there laid down. The complaint fails to state facts sufficient to negative the presumption of negligence, and in that it fails to state a cause of action under the circumstances disclosed by the pleading itself.
2. The trial court undertook to state in instruction No. 1 the material allegations of the pleadings and the general issues for trial. Objection was made by defendants that the statement was not complete and did not fairly present the matters in issue. The objection was overruled, and error is predicated upon the ruling. In the complaint plaintiff pleads that it was his duty to place his train on the siding at Beid; but the court in its general instruction omits any reference to this admission, and when its attention was called to the omission, there was a refusal to correct the instruction so as to present the admitted fact to the jury. The admission was material, since it showed knowledge on the part of plaintiff of the duty imposed upon him and a full appreciation of the duty. The practice of giving a general charge analyzing the pleadings and defining the issues is to be commended, but such charge should present the matters fully and fairly, that the jury may be enlightened and not misled. (Rand v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87.) The trial court should have corrected the instruction so as to include the admission in the complaint mentioned above.
3. That portion of defendant’s line of road between De Smet and Reid constituted a -block, and the movements of trains over this track were governed by the block signal system. The semaphore at Reid was directly in front of the station and marked the beginning of the block. Under what is known as a' positive block, a collision is practically impossible, for only one train can be on a block at any given time. There is, however, a permissive block upon which two or more trains may be at one time, under cautionary instructions. The siding at Reid which is altogether east of the station is not a part of the block system. This record contains more than 1400 pages. Much of it is given to explanations of the block signal rules. "Without attempting a summary, we must content ourselves with the mere statement of our conclusions from the record, since it is impossible to state even the substance of the evidence within any reasonable limit.
In running his train from the west past the semaphore at Reid and entering upon the block between Reid and De Smet without orders, and despite the fact that the signal at Reid was displayed against his train, Bell was guilty of negligence. The rules under which he operated are written in plain, terse English. It was his duty to keep his train west of the semaphore at Reid, until Lynes ’ train had cleared the east switch and was upon the siding, for cautionary instructions were not given, such as the rules contemplate for a permissive block. In running past the east switch at Reid and up the main line instead of taking the siding, Lynes violated the reasonable rules of the company and the orders under which he was operating, and was, prima facie, guilty of negligence which contributed to his own injury. If this record concluded with the establishment of these facts alone, Lynes could not recover, and the court so instructed the jury. In instruction 32 the jury were told that the burden was upon the plaintiff to overcome the prima facie presumption-of his own contributing negligence, by showing that in running past the switch and colliding with Bell’s train, he was exercising reasonable care under the circumstances. In other words, the plaintiff was under the necessity of excusing himself for his apparent wrongdoing. It was his duty to stop his train before reaching the east switch and to go upon the siding. He fully understood and appreciated this, as the evidence demonstrates beyond question. In excuse of. his failure to obey the rules and the orders under which he was running, the plaintiff says: “The reason I did not stop in time to go into the sidetrack,-1 was misled by the mile-board and could not locate the switch until I was right on it on account of the curve.” .In instruction 38 the court told the jury that neither one nor both of these would constitute an excuse for plaintiff’s failure to stop and take the siding. This instruction was the law of the case and binding upon the jury (Bliss v. Wolcott, 40 Mont. 491, 135 Am. St. Rep. 636, 107 Pac. 423), and a verdict contrary thereto is a verdict contrary to law, which justifies a new trial under section 6794, Revised Codes. (State v. Radmilovich, 40 Mont. 93, 105 Pac. 91.)
In the brief of counsel for appellants instruction 36 is treated as declaring the law above. It does not do so. Whether there is a mere clerical error or a misapprehension by counsel does not appear. The fact that instruction 38 is not mentioned would impel us to disregard this assignment but for the other errors appearing in the record.
In the brief of counsel for respondent it is insisted that there are grounds of excuse other than those mentioned by plaintiff above. However, this does violence to the plain language employed by the plaintiff, who was certainly in a position to know the causes which led to his violation of the rules and orders. It, is suggested that plaintiff had been on duty a long time and that the same degree of alertness could not be demanded of him as of an engineer who had rest and sleep within a reasonable time before the accident occurred. This argument would be available if plaintiff relied upon his exhausted physical condition as a reason for forgetting his orders or as an excuse for not accurately locating the switch; bnt he does not do so. He testified that he remembered his orders, knew that he had to ta¿e the siding, and directed the fireman to call the head brakeman to turn the switch. It is also suggested that the failure of the air-brakes to work as plaintiff assumed they would was also an element to be considdered in excuse for his failure to stop before reaching the switch. At least, this is the force of the argument as we gather it from the brief; but this is not available, for there is not any evidence that plaintiff endeavored to use the air to stop, until, as he says, he was right at the switch — within a car-length of it.
4. It is claimed in the complaint that the company was negligent in failing to give Lynes a caution card before he left De Smet. Just what assistance such card would have rendered plaintiff is difficult to determine. It would not have disabused his mind of the erroneous impression as to the location of the mile-post, or furnished him any information as to the exact location of the switch. It would have told him that Bell’s train was east of the station at Reid and within the block, but plaintiff does not claim that he ran by the switch purposely; on the contrary, the only legitimate conclusion from his own testimony is that he did his utmost to locate the switch and fully intended to stop east of it and go upon the siding, and that he did not do so because he was misled by the legend on the mile-post, and was unable to locate the switch by reason of the curve in the track immediately east of it.
5. Appellants insist that even if plaintiff showed himself excusable for running up to the switch before he located it definitely, still by the exercise of reasonable care he could have stopped his train in time to avoid the collision. From the plaintiff’s own testimony it appears that he ran past the switch from 450 to 500 feet before striking Bell’s train. The defendants offered an expert witness to prove that by the use of the air-brakes with which Lynes’ train was equipped, he could have stopped the train before the collision occurred. They also had identified certain tables representing experiments made with these air-brakes by the Westinghouse company, and offered the tables in evidence as tending to show the duty or available power of these brakes to control trains of different tonnage under varying circumstances. The offered evidence was rejected, and error is predicated upon the ruling. The tables were offered as corroborative of the expert opinion given by the witness, and as independent evidence of the facts shown. The objection to the evidence was that it was irrelevant, incompetent and hearsay. It can scarcely be said that the offered evidence was irrelevant. It tended to prove an issue which was being controverted. If the evidence was incompetent, it was so only because it was hearsay. The courts which have rejected this character of evidence have done so uniformly upon the ground that it is hearsay, coming from a witness who was not under oath in making his experiments or in compiling his tables, and not subject to cross-examination.
It may be conceded at once that the weight of authority, numerically at least, is against the reception of this particular class of evidence; yet many of the very courts which reject it admit the standard mortality tables, almanacs, market reports and the like, which have no other basis for their evidentiary value than that they represent experiments, observations or calculations made by men of learning or experience, and that they are standard works, recognized as such and acted upon by men in the particular business to which their information relates. It does not follow, because one thousand men at the age of fifty years actually live an average of 20.91 years thereafter, that any other man of the age of fifty now will survive for that exact period of time; and yet there is scarcely a court in all the land which rejects the mortality tables, and very few which now require any preliminary proof. They are admitted, not because they are absolutely correct, but because they have been found to contain reliable information as a basis of calculation or comparison, which is so generally accepted and acted upon as to be evidence of facts of general notoriety and interest. In addition to the mortality tables, almanacs and the like, the courts are now coming to adopt a more liberal and sensible view as to the admissibility of learned treatises, tables of scientific calculations, and the like. In Garwood v. New York C. & H. R. R. Co., 45 Hun. 128, the New York court held that Leffel’s Tables are admissible to prove the service capacity of certain pumps. In Banco De Sonora v. Bankers Mutual Casualty Co. (Iowa), 95 N. W. 232, Bouvier’s Law Dictionary was introduced in evidence to show the meaning of the word ‘ ‘ adult, ’ ’ as used in the civil law of Mexico. In Warrick v. Reinhard, 136 Iowa, 27, 111 N. W. 983, the certificate of a Breeders’ Association was admitted in evidence to show the breeding of an animal, as reflecting upon the question of its value. In Cherry Point Fish Co. v. Nelson, 25 Wash. 558, 66 Pac. 55, the court held that tide tables prepared for Puget Sound by the engineers of the Government Coast and Geodetic Service, were admissible to prove the depth of water at low tide at a particular point. In State v. Coleman, 20 S. C. 441, the court dismissed the subject with this brief remark: “We understand that an expert may be examined as to how far standard works sustain or conflict with his opinion.”
In Western Assur. Co. v. Mohlman Co., 83 Fed. 811, 28 C. C. A. 157, 40 L. R. A. 561, certain tables prepared by the United States Forestry Bureau, showing the result of tests made, and like tables from Kent’s Mechanical Engineer’s Pocketbook and Johnson’s Strains in Frame Structures, were introduced in evidence to show the crushing strength of different kinds of timbers. Upon the admissibility of these tables the circuit court of appeals says: ‘ ‘ That information of great value is obtained by multiplying such tests and tabulating the results is surely self-evident. Under the rule contended for, that valuable information would be available for the use of a court of justice so long as the men who made the tests and prepared the tabulations were living and producible, but after their death or disappearance the information they have gathered would be lost to the court, although available for everyone else in the community,, and relied upon by engineers and builders whenever a new structure is in process of erection. Upon the precise point here presented the diligence of counsel has not succeeded in discovering a single authority. We feel, therefore, no hesitancy in so modifying the general rule as to hold that, where the scientific work containing them is concededly recognized as a standard authority by the profession, statistics of mechanical experiments and tabulations of the re- suits thereof may be read in evidence by an expert witness in support of his professional opinion, when such statistics and tabulations are generally relied upon by experts in the particular field of the mechanic arts with which such statistics and tabulations are concerned.1 ’
These cases are cited as tending to show the disposition of courts to adopt a more liberal view as to the admissibility in evidence of documents the contents of which are available to everyone else and relied upon in the most serious affairs of life. The subject is very thoroughly treated in 3 Wigmore on Evidence, chapter 55, and the conclusion to be drawn from that learned author’s discussion is, that if the proper preliminary proof is made, viz., that the book or chart offered is by a person indifferent between the parties litigant, is standard among the profession, trade or occupation to which it relates, and is accepted and acted upon as accurate, it should be admitted, upon the theory that the matters'which it contains are facts of general notoriety and interest.
We ’decline to accept the narrow definition given by the supreme court of California, in Gallagher v. Market St. Ry. Co., 67 Cal. 13, 56 Am. Rep. 713, 6 Pac. 869, of the phrase “facts of general notoriety and interest,” as used in section 7940 of the Revised Codes. Manifestly, the legislature intended that a very wide latitude should be allowed in fixing a definition for those terms. It was doubtless considered that a fact unrecognized to-day may become one of general notoriety and interest, as the result of scientific investigation or experiments. There is not any reason which will justify the admission of mortality tables, almanacs, market reports, and the like, which will not apply equally in favor of these tables. Assuming that the proper foundation was laid — and there was not any objection upon that score — we think the court erred in excluding the evidence.
6. Witnesses were interrogated at length as to the proper meaning to be given to certain rules promulgated by the railway company for the control of its employees in operating under the block signal system; and in instruction No. 3 the court sub mitted to the jury, for it to determine, the meaning which should be given to these rules. If the language of a rule is vague and its meaning uncertain, evidence is admissible to show the practical interpretation put upon it by those called upon to construe the rule or by those under whose supervision the rule was promulgated. But where, as in this instance, the language of the rules is plain and the meaning apparent, it is the duty of the court to declare that meaning and not leave it to the speculation of the jury. (Rev. Codes, sec. 7875; Doherty v. Northern Pacific Ry. Co., ante, p. 294, 115 Pac. 401.)
7. Complaint is made of the action of the trial court in refusing to strike out of plaintiff’s cost bill certain items relating to the mileage of witnesses, and an expression found in the opinion in McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428, is relied upon as justifying the contention now urged. In the McGlauflin Case, Commissioner Clayberg, speaking for the court, said: “Section 4648 of the Political Code (of 1895) provides that witnesses attending a trial are entitled to ten cents per mile each way from their place of residence to the place of trial.” The question whether mileage should be allowed from the place of residence was not involved in that case, and the use of the word “residence” was a mere inadvertence. The statute cited does not impose any such limitation. That section, which is now section 3182, Revised Codes, when read with section 7169, Revised Codes, clearly means that the prevailing party may recover his necessary disbursements, including mileage of witnesses. Whether the mileage shall be computed from the place of residence will depend upon the circumstances of each case. There was not any error committed in this instance.
8. Complaint is made of the refusal of the trial court to give certain instructions requested by the defendants. The record discloses that the court gave forty-eight instructions, which is three or four times as many as the question presented for trial warranted. The least that can be said is, that the court did not commit error in refusing to give other instructions requested.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed md remanded.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
Rehearing denied June 22, 1911.
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MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1909 the assessor of Silver Bow county made an assessment of the property of the Western Union Telegraph Company, in form as follows:
Pole lines consisting of copper and iron.wires..........$10,445
Office furniture and instruments...................... 500
Franchise assessment............................... 2,000
The taxes upon this valuation amounted' to $249.57, and of that amount the telegraph company paid $204.57, but refused to pay the $45 representing the tax upon the assessment of $2,000 for “franchise.” This action was commenced by the state to enforce the payment of the tax of $45. The cause was tried upon an agreed statement of facts, and resulted in a judgment for the defendant company. From that judgment the state appealed.
The facts agreed upon, so far as material here, are: (a) The Western Union Telegraph Company is a New York corporation which has been engaged in business in the territory and state of Montana for many years; (b) that on June 5, 1867, defendant company accepted the provisions of an Act of the Congress of the United States entitled “An Act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes,” approved July 24, 1866, Chapter 230, 14 Statutes at Large, 221; (c) that the business of the. telegraph company consists in transmitting messages by electric telegraph between points wholly within this state and between points within and without the state, and between the officers, agents and departments of the federal government ; (d) that the assessment of $2,000 “represents the valuation by said assessor upon the right or privilege of carrying on the said telegraph business within the said county of Silver Bow.”
The only question in dispute here is the right of the revenue officers of this state to collect a tax upon the “franchise” of this company. There is not any disagreement as to the meaning of the term “franchise,” as used in the assessment or as used in the Constitution and statutes of this state.
By the Act of the Congress to which reference is made, the general government granted to telegraph companies, which should accept the provisions of the Act, rights of way over the public domain, along military or post roads, and over, under, or across navigable streams, and also granted the right to take and use public land for stations, and stone, timber, and other materials for construction work. As a consideration for the grant thus made, the government exacted (1) that government communications should be given priority in transmission; (2) that the rates for government business should be fixed by the postmaster-general; and (3) that the government might purchase all the lines and property of any consenting company. The Western Union company, having accepted the benefits and burdens of this Act, thereby became an agency of the federal government for the transaction of its postal business, and an instrumentality of interstate and foreign commerce. (City Council of Charleston v. Postal Tel. Co., 3 Am. Elect. Cas. 56; Western Union Tel. Co. v. Mayor (C. C.), 38 Fed. 552, 3 L. R. A. 449; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, 24 L. Ed. 708; Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067.)
That the state may not tax the right to carry on interstate commerce or to conduct the business of the government is too well settled to be open to argument. (Telegraph Co. v. Texas, above; California v. Pacific Railroad Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150; Philadelphia & So. Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200.)
The business of this company consists in transmitting three distinct classes of messages: (1) Interstate private messages; (2) intrastate private messages; and (3) government messages, interstate and intrastate. It is suggested by the attorney general that it will not be presumed that the assessor attempted to assess the right to do interstate or governmental business, but rather the presumption should be indulged that he intended to assess only the right of the company to do purely local or intrastate private business. If we had before us only the entry on the assessment-roll as indicated above, we might feel somewhat uncertain; but in the agreed statement we are told that the assessment of $2,000 on “franchise ” “represented the valuation by said assessor upon the right or privilege of carrying on the said telegraph business within the said county of Silver Bow.” The words “said telegraph business” refer bach to the description of the business of the defendant company as given in paragraph 1 of the agreed statement, to-wit: “That for more than twenty-five years last past said defendant has been and is doing what' is commonly called a general telegraph business in all the states and territories of the United States, and among others, particularly the state of Montana and especially the county of Silver Bow therein, and transmitting on its said lines and in the course of the conduct of said business telegraph messages for the public generally as well as those sent from point to point within said state of Montana as those from points without to points within, and from points within to points without' said last-named state”; and the further description of the business contained in paragraph 4 of the agreed statement, to-wit: ‘ ‘ That all of the telegraph lines of said defendant corporation within the territory that is now included in the state of Montana were constructed and ever since have been maintained and operated by said defendant under and pursuant to the provisions of the said Act of Congress above set forth, and defendant has at all times since said construction and during such maintenance and operation transmitted telegraph messages between the several departments of the governments of the United States and their officers and agents, for the government of the United States and relating to the civil, military, postal, and general administration thereof, all as in said Act provided. ’ ’
The right to carry on the telegraph business, then, includes any and all of the business. The words “within the said county of Silver Bow ’ ’ must refer to business originating or terminating in, or passing through, the offices in Silver Bow county. They cannot be construed to refer to business conducted wholly between points within that county, but even if they did they would still include governmental messages; and, as thus construed, they indicate that the assessor was attempting to fix a valuation on the right or privilege of the company to transact any business whatever within Silver Bow county, and having made his assessment in a lump sum, and not having fixed a separate-valuation upon the right of the company to do intrastate private business only, the entire assessment on the franchise becomes void and the tax illegal.
In considering a like question, the supreme court in California v. Pacific R. R. Co., above, said: “It follows that, in each one of the cases now before us, the assessment made by the state board of equalization comprised the value of franchises or property which the board was prohibited by the Constitution of the state or of the United States from including therein; and that these values are so blended with the other items of which the assessment is composed that they cannot be separated therefrom. The assessments are, therefore, void.”
It is not necessary to determine whether the state may lawfully tax the franchise of this company or its right to transact intrastate private business only, but that such right exists appears to be recognized by expressions found in each of the following eases: Telegraph Co. v. Texas, above; Ratterman v. Western Union Tel. Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1383, 32 L. Ed. 311; Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586. For the reason given, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Application for mandamus. On May 22, 1911, there was presented to the board of commissioners of Chouteau county a petition asking for the creation of a new county, to be named Blaine, out of territory within the boundaries of Chouteau county described in the petition. The proceeding thus sought to be initiated is authorized by an Act of the last legislative assembly providing a uniform mode for the “creation, organization and classification of new counties, for locating the county seats, ’ ’ and for other purposes incidental and necessary to accomplish the main purpose of tbe legislation. (Laws 1911, Chap. 112, p. 205.) The petition contained a statement of the facts necessary to confer jurisdiction upon the board and require it to proceed. It purported to bear the signatures of more than one-half of the qualified electors of the proposed new county whose names appeared on the official registry books used at the last preceding general election held therein, as required by the statute, and was properly verified by the affidavits of three qualified electors and taxpayers. By order of the board duly made, notice was published fixing the hearing for June 11. The number of signatures to the petition was 681. Prior to its formal presentation to the board, however, written requests for leave to withdraw their signatures were filed with the board by forty of the original signers. During the course of the hearing, which was adjourned from time to time until July 1, the board struck off the names of those who had requested to withdraw, the number of signatures being thus reduced to 641. None of the facts stated in the petition or attached affidavits were controverted by anyone. At the hearing it appeared that there were upon the official register used at the last preceding general election a total of 1,411 names. Counsel representing the petitioners introduced evidence showing that of this number many had either died or permanently removed from the county, or had registered in two different precincts. This evidence was in the form of sworn testimony of witnesses who had personal knowledge of the persons who bore the names in question, and was not controverted. At the conclusion of the hearing the board found all of the facts as stated in the petition; that all of the 641 signatures were of electors entitled to join in the petition; that of the total of 1,411 names on the register, 143 did not, because of deaths, permanent removal from the county, etc., represent qualified electors, and that, deducting these names from the list, 641 represented more than one-half of the remainder. It nevertheless held the petition insufficient and refused to proceed because it did not bear the signatures of at least one-half of' the total number of 1,411. Thereupon the relator, a taxpayer and resident of the proposed county of Blaine, instituted this proceeding. The district court was of the opinion that from the facts found by the board, and stated above, the petition was sufficient, and rendered judgment directing the writ to issue. The defendants have appealed.
Section 1 of the Act referred to defines the circumstances under which a new county may be created either out of territory within a county already existing, or out of territory included in two or more adjoining counties.
Section 2 confers the power to create the new county upon the board of commissioners of the county out of which the territory of the proposed new county is to be taken; or, if it is the purpose to include in the proposed county, territory from two or more counties, upon the board of the county from Avhieh the greatest area of territory is to be taken. The proceeding must be initiated by petition. “Such petition shall be signed by at least one-half of the qualified electors of the proposed new county, whose names appear on the official registration books used at the general election held therein last preceding the presentation of said petition to the board of county commissioners as herein provided; * * * .” If territory is to be taken from more than one county, separate petitions must be presented by the electors from such portions of territory so to be taken. There must be attached to each petition the affidavits of three qualified electors and taxpayers of the territory from which it comes, verifying the genuineness of the signatures and also the truth of the statements recited. The course of procedure to be pursued by the board is indicated, and at the hearing, after notice, the board may take the petition as prima facie evidence of the jurisdictional facts, or it may hear evidence; or, upon proper petition by qualified electors from a definite portion of territory, may change the boundaries of the proposed county so as to exclude such portion of territory. If upon the hearing the facts are found justifying action by the board, it must by resolution make a record of them.
Section 3 then makes it incumbent upon the board to divide the designated territory into townships, road and school districts, and to designate election precincts, and thereupon to proclaim and hold an election. If upon canvassing the returns it is found that the result is in favor of the new county, as required by section 4, the board shall by resolution declare the county organized. The election must include the selection of a county seat and the necessary county and township officers.
Sections 5 to 15, inclusive, embody provisions directing how the internal affairs of the county are to be adjusted by the newly elected officers.
From this brief resume of the provisions of the Act, it is apparent that it was the duty of the defendant board to proceed to proclaim and hold the election, if the number of signatures to the petition was sufficient under the requirement of section 2; for, all the other jurisdictional facts having been found in favor of the petitioners, the board had no discretion but to proceed under the provisions of section 3. This is conceded by the attorney general, but he argues that it was the clear intent of the legislature, as expressed in the language, supra, from Section 2, that the number of signatures must be at least one-half of the number of names of electors as they appear upon the registration books, without regard to the number of them which might have been canceled by the registry agent under section 467, Revised Codes, because of death, removal, etc. Counsel for relator contend that the requirement refers to those qualified electors only whose names are properly on the list, and hence that the board having found that 143 of the names on the list do not represent qualified electors, it should have deducted these from the total sum. With this latter contention we agree. It is clear from the language employed that the signers of such a petition shall at the time of signing possess two qualifications, viz., they must be qualified electors of the proposed new county, and their names must be found upon the registration books. Though a name is found upon the list of registered electors, it does not follow necessarily that the person who was registered under that name is therefore a qualified elector. At best, if he is living, he is only prima facie such, even if he retains his residence. Death or a disqualification then existing or thereafter wrought by change of residence or other cause, removes him from the class of electors. Therefore, to give significance to the expression * ‘qualified electors of the proposed new county,” it must be understood as a limitation upon the number of those who only may be taken into account, notwithstanding the number of names appearing on the list. In other words’, the number of names upon the list is not the criterion, but the number of names of those who at the date of signing the petition are qualified electors. That this is the correct view is made manifest by the duties which must be discharged by the board in determining the sufficiency of the petition. While it must be accepted as prima facie evidence of the truth of everything contained in it, on final consideration of it the board must hear the petitioners and any •opponents and receive evidence offered to establish or controvert the facts set forth in it. It must thereupon determine the truth •of all jurisdictional facts, among others, whether it “contains the genuine signatures of at least one-half of the qualified electors of the proposed new county as herein required.” (Section 2.) If the facts stated, among which is the fact that the signers are qualified electors of the proposed new county, may be controverted, it may be shown that any signer is not such an elector, even though his name is on the list. Hence the petitioners may show that some of the names on the list are not those of qualified electors.
It is argued by the attorney general that this conclusion recognizes, as lodged in the board, the power to cancel from the registration books the names of deceased or disqualified electors, whereas by the statute (section 476, supra) it is lodged exclusively in the registry agent, to be exercised during the period of registration only. We do not agree with this. The board does not remove any name. It merely ascertains from the list the names of those who are qualified electors, in order that it may know that the petition bears the signatures of the requisite number.
A number of cases are cited by counsel in support of their respective contentions, including State ex rel. Stringfellow v. Board of Commissioners, 42 Mont. 62, 111 Pac. 144; but the provisions of the statutes examined in them differ materially from those under consideration here. Hence they have not sub' stantially aided us in reaching a conclusion.
The judgment is affirmed.
Affirmed.
Mr. Justice Smith and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE SMITH
delivered the opinion of the court.
Application for a writ of mandamus to compel the district court of Silver Bow county and the Honorable John B. McClernan, one of its judges, to vacate an order made in the case of Oram Stephens (this relator), against Frank Conley, granting the latter’s motion for a change of place of trial to Powell county, and to make an order denying said motion. The relator is a resident of Silver Bow county, while Frank Conley resides in Powell county. He was, however, served in Silver Bow county. The complaint in Stephens v. Conley contains three causes of action. In the first the plaintiff alleges that ever since the 12th day of July, 1907, the defendant has been the warden of the state penitentiary at Deer Lodge in Powell county; that P. J. Tuohy and Joseph Quesenberry were guards at the prison, in his employ, during the years 1908 and 1909; that while plaintiff was confined* in the prison under a sentence of the district court of Fergus county, the defendant ordered Tuohy and Quesenberry to manacle and shackle him and to confine him in a dirty, filthy, loathsome, dark and obnoxious cell called the “Hole,” which they did; that under Conley’s direction the guards assaulted him, placed him in solitary confinement and fed him on bread and water. The second cause of action is predicated upon the allegation that Conley, as warden, retained plaintiff in custody at the prison for a period of 177 days after his term had expired. The third cause of action is for an alleged malicious prosecution after plaintiff was released from the prison.
The defendant’s motion for a change of place of trial was based upon the following allegation, among others: “That the causes of action set forth in the complaint are for certain alleged acts specified in said complaint, done by said defendant in virtue of his office as warden of the penitentiary, and all of said causes of action arose in the county of Powell.” Plaintiff filed a counter-motion praying that the cause be not sent to Powell county because of the fact that the people of that county are so prejudiced against him that he could not have a fair and impartial trial. This motion was overruled by the district court and that of defendant was granted.
Section 6502, Revised Codes, provides: “Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the * # * powder of the court to change the place of trial; * * * 2. Against a public officer, * * * , for an act done by him in virtue of his office, * * *
Section 6504 reads: “In all other cases, the action shall be tried in the eounty in which the defendants, or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found; * * * Actions upon contracts may be tried in the county in which the contract was to be performed; and actions, for torts in the county where the tort was committed; subject, however, to the power of the coqrt to change the place of trial, as provided in this Code.”
Section 6505 reads: “If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.”
When Conley appeared in the action he filed an affidavit of merits, and subsequently an amended affidavit was filed by leave of court. We find no abuse of discretion in allowing the amended affidavit to be filed. It reads as follows:
“Frank Conley, the defendant in the above-entitled cause, being first duly sworn, on oath deposes and says, the summons and complaint in this action were served on me on the 13th day of June, A. D. 1911. I further say that I have fully and fairly stated the case and all the facts in this cause, to C. F. Kelley, one of my counsel and attorneys in this case, who resides at No. 829 West Park street, in the city of Butte, Montana, and after such statement, I am advised by the said Kelley, and verily believe, that I have a good and substantial defense on the merits in this cause, and to all of the causes of action set forth in said complaint; that at all the times mentioned in plaintiff’s complaint and at all times since, including the time of commencement of this action, affiant has been and now is a resident of, and resided in, and now resides in the county of Powell, state of Montana; that all of the alleged causes of action set forth in said complaint arose within, and all the alleged tortious acts, if any, alleged in said complaint, against this defendant, were committed within the said county of Powell, and that all of said alleged causes of action, which occurred subsequent to July 1, 1908, are brought against me by virtue of certain alleged acts, which it is alleged were either done by me, or suffered and permitted to be done by me, while acting in the capacity of warden of the state penitentiary of the state of Montana, located in the city of Deer Lodge, in said county of Powell. That I am now, and during all of the times mentioned in said complaint, since July 1, 1908, have been the duly appointed, qualified and acting warden of the said penitentiary of said state.”
1. It is contended that the affidavit of merits is insufficient in that it fails to set forth the facts relied on by the defendant as a defense to the action. The case of Pearce v. Butte Electric Ry. Co., 40 Mont. 321, 106 Pac. 563, is cited by the relator to this point. This court held in the Pearce Case, following the earlier decisions on the subject, that to justify an order relieving a defendant from a default judgment, it was necessary to file an affidavit setting forth the facts constituting his defense or tender a copy of his proposed answer. The affidavit referred to is called in the opinions an “affidavit of merits” and is, strictly speaking, an affidavit setting forth the merits of the proposed defense. But the statute does not so denominate it. The Code (see. 6589, Rev. Codes) provides that the court may relieve a party from a judgment, “in furtherance of justice, and on such terms as may be just,” and this court, in Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887, held that no relief should be granted unless the facts constituting the defense were stated in the moving affidavit. The rule there laid down has been since consistently adhered to and followed. (See, also, Schaeffer v. Gold Cord Mining Co., 36 Mont. 410, 93 Pac. 344.) It may be confidently asserted, therefore, that an affidavit such as that presented in this case would not be sufficient to warrant the court in vacating a default judgment. And there is good reason for the rule. A judgment regularly entered after service of process is presumed to be just; and the burden is upon the defendant to make a prima facie showing that it is unjust. Mr. Chief Justice Wade, speaking for the court in Donnelly v. Clark, very pertinently inquired: “How could it be made to appear unless the nature of the defense is disclosed ? ’ ’
But the affidavit required on demand for a change in the place of trial is specifically referred to in the statute as an “affidavit of merits.” At the time of the adoption of the Code and for many years prior thereto the term “affidavit of merits” had a well-defined meaning. “On a motion to change the venue defendant must swear to a meritorious defense, as he is advised by his counsel.” (1 Ency. Pl. & Pr. 375.) “The form of the affidavit of merits usually required to be made by a defendant and which should generally be followed, is ‘that defendant has fully and fairly stated the case to his counsel and that he has a good and substantial defense upon the merits in the action, as he is advised by his counsel and verily believes. ’ Every part of this form is material and any departure from it should be avoided.” (2 Am. & Eng. Ency. of Law & Pr. 722.) We think the affidavit of merits required by section 6505, Revised Codes, is the formal affidavit referred to and the form of which is given in the authorities just quoted. The affidavit in this ease is therefore sufficient.
2 It is contended by the counsel for relator that Silver Bow county was a proper place in which to try the action because of the fact that it was the county where plaintiff resides and where the defendant was served. And, it is argued, this being true,' the plaintiff had a right to insist that. the cause should be tried in that county, notwithstanding the fact that defendant resided in Powell county and the torts complained of were there committed. Under statutory provisions similar to ours, the court of appeals of Colorado held: “In an action for a tort the county where the defendant resides, and the county where the plaintiff resides and the defendant is served, and the county where the tort was committed, are equally proper counties for trial; and, if the action is commenced in any one of these counties, the place of trial cannot be changed, on the ground that the county designated is not the proper county.” (Denver etc. R. Co. v. Cahill, 8 Colo. App. 158, 45 Pac. 285.) We may assume, without deciding, that the Colorado court has correctly interpreted the statute. But there is an element in this cause •which, is lacking in the Colorado case. It is shown by the complaint that Conley is the warden of the state penitentiary and that some of the acts complained of were committed by him while in the exercise of his authority as such officer. The fact that other tortious acts are charged in the third cause of action does not deprive him of his right to demand a change in the place of trial. (Bond v. Hurd, 31 Mont. 314, 78 Pac. 579.) There is no question that the warden of the state penitentiary is a public officer. (See sec. 9720, Rev. Codes.) Section 6502, Eevised Codes, supra, provides that an action against a public officer, for an act done by him in virtue of his office, must be tried in the county where the cause of action, or some part thereof, arose, subject to the power of the court to change the place of trial. Section 6506, Eevised Codes, provides: “The court or judge must, on motion, change the place of trial in the following cases: 1. "When the county designated in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change. 4. When, from any cause, the judge is disqualified, etc.”
It is contended that the tortious acts complained of were not committed by the defendant “in virtue of his office,” but we think there is no force in the suggestion. It could only have been by reason of the fact that he was warden, that opportunity was given to commit the alleged acts. If he could commit only legal acts “in virtue of his office,” plaintiff would have no cause of complaint.
We think the legislature intended that an action against a public officer for a tort alleged to have been committed by him in the exercise of his authority as such officer, should be tried in the county.where the act was done; and that, in cases where the place of trial is otherwise properly selected by the plaintiff, the defendant has an absolute right to have it changed to the county where such act was committed. (Cowen v. Quinn, 13 Hun, 344; Porter v. Pillsbury, 11 How. Pr. 240.) The Code provides that the action must be tried in that county. In all eases where the venue is properly laid, however, the court may change the place of trial where there is reason to believe that an impartial trial cannot be had in the county first selected, or when the convenience of witnesses and the ends of justice would be promoted by the change, or when the judge is 'disqualified.
Plaintiff’s counter-motion was properly disregarded. That motion could only be considered after the cause was sent to the proper county for trial.
The proceedings are dismissed.
'Dismissed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Application for an injunction. The purpose sought by this application is to have this court, in the exercise of original jurisdiction compel the several defendants to dismiss certain actions brought by them and now pending against the relator, the city of Helena, and to refrain from instituting others of a similar character hereafter. The actions described in the petition are: One instituted by the defendant Charles E. Bockus, as receiver of the Helena Waterworks Company, in the circuit court of the United States for the district of Montana, to enjoin the issuance and sale of bonds by the city to procure funds for the purpose of installing its own water supply system; a second, brought by the defendants Lokowich, Stabler, the two Baums, Fisher, Davies, Dallas, Thompson, Beatty, and Filson, in the district court of the Ninth judicial district of Montana, in and for Broadwater county, to restrain the city from diverting from Beaver creek, in said county, any of the water flowing therein and conveying it to the city, the same being outside of the watershed drained by the stream; and a third, brought in the same court for the same purpose as the foregoing, by the defendant Custer Mines Consolidated Company. The defendants Gunn, Hall, Hartman, and Walsh are the attorneys, each representing some one or more of the plaintiffs in these several actions. It is alleged, in substance, that they, conspiring together with the said Bockus and others, have brought and procured to be brought all of the said actions, well knowing that the alleged rights involved therein have heretofore been fully adjudicated by the courts of Montana, and that the said actions are wholly without merit, for the sole purpose of embarrassing the city in making a sale of its bonds, and to obstruct it in the prosecution of its purpose to install its water system to supply its inhabitants with water. As a reason why this court .should assume original jurisdiction, it is alleged that, since an appeal would lie from the decision of any action or proceeding brought in a .district court to obtain relief, such decision would not be effective because of the delay necessarily incident to the appeal; it being necessary and desirable that the sale of bonds now advertised should be consummated.
The defendants, in response to an order to show cause, made upon the presentation of the application, filed their answers, reserving, however, the right to question the power of this court to grant the relief prayed for. The cause was then submitted for final judgment, upon the pleadings, a transcript of the testimony of several witnesses in the form of depositions taken in the action brought by Lokowich and his codefendants, and other documentary evidence. The controlling question presented for decision arises upon the objection of the defendants to the jurisdiction of this court. Even without objection, what ever may be the merits of a controversy from a judicial point of view, this court may not assume original jurisdiction in any case unless authority to do so is found in the Constitution.
This court was created by the Constitution. That instrument is the charter of its power. The assumption by it to exercise a power not expressly granted or necessarily implied would be a •usurpation. On the other hand, a refusal to exercise any power granted, when properly invoked, would be a clear violation of its duty. When we turn to the Constitution to ascertain the powers conferred, it is apparent that the purpose of the convention that formulated it was to constitute a court exclusively a court of review, with all the auxiliary powers necessary to the exercise of this jurisdiction, except in so far as it expressly declared otherwise. The provisions defining and limiting its powers are found in sections 2 and 3 of Article VIII, as follows:
“See. 2. The supreme court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law.
“Sec. 3. The appellate jurisdiction of the supreme court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction.”
The- different justices are in the latter part of section 3 clothed with power to issue, hear and determine writs of habeas corpus, and also writs -of certiorari to review proceedings for contempt in the district courts; but these powers are conferred upon the justices individually. Consideration of them is not pertinent here. In section 2 the grant is of “appellate jurisdiction only,” “except as otherwise provided,” and “a general supervisory control over all inferior courts.” The appellate jurisdiction here granted is properly invoked by appeal-only, or perhaps by writ of error, and is confined in its exercise to a review of cases which have been decided by the district courts. The supervisory power — which is also appellate in its nature — was designed to control summarily the course of litigation in the inferior courts and prevent an injustice being done through a mistake of law or a willful disregard of it when there is no appeal from the erroneous order, or the relief obtained through the appeal would be inadequate. Its purpose is pointed out in State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pae. 395. Its appropriate use is illustrated by the following eases: State ex rel. Anaconda C. Min. Co. v. District Court, 25 Mont. 504, 65 Pac. 1020; State ex rel. Shores v. District Court, 27 Mont. 349, 71 Pac. 159; State ex rel. Sutton v. District Court, 27 Mont. 128, 69 Pac. 988; State ex rel. Boston & Mont. C. C. <& S. Min. Co. v. District Court, 30 Mont. 96, 75 Pac. 956; State ex rel. Boston & Mont. C. C. & S. Min. Co. v. District Court. 30 Mont. 206, 76 Pac. 206; State ex rel. Clark v. District Couri, ’30 Mont. 442, 76 Pae. 1005. It is not necessary to consider it further here.
By section 3 the jurisdiction granted under section 2 is extended to “all cases at law and in equity.” The rule of interpretation to be applied in order to ascertain the limits of this jurisdiction is embodied in the maxim, “Inclusio unius est exclusio alterius”; for in the Declaration of Rights this rule of interpretation is declared as follows: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” (Article III, section 29.) In section 2, above, the word “only” is exclusive. It signifies “no other than,” as applied to the objects with reference to which it is used. Hence it excludes the notion of original jurisdiction in any case, except so far as it is conferred by some other provision. The word “all,” used in section 3, is inclusive, and signifies “the whole number of” with reference to “cases at law and in equity.” Thus again the affirmative words in this section operate to exclude the notion of original jurisdiction over any case which falls in the designated classes. Hence the authority to assume jurisdiction of the case in hand, if asserted at all', must be found in the grant of power, contained in section 3: to issue, hear, and. determine the six original writs- enumerated therein, including the writ of injunction.
It will be observed that, while the supervisory and appellate jurisdictions conferred are to be exercised under limitations and regulations prescribed by law, the writs enumerated in section 3 are put into the hands of the court to be made use of at its discretion, to effectuate their appropriate purposes. All of them, except the writ of injunction, are common-law writs, and their uses were at the time of the adoption of the Constitution well defined and understood. It is not necessary to discuss them. The purpose and functions of the writ of injunction are discussed and defined in State ex rel. Clark v. Moran, 24 Mont. 433, 63 Pac. 390. Inasmuch as it (a non jurisdictional writ) is found grouped with five other jurisdictional writs, the rule “noscitur a sociis” was applied to determine the uses which it must serve, and the conclusion was reached in that case that it was the intention of the convention that it was not to be used as a provisional remedy in aid of an independent equity jurisdiction conferred upon this court, — because none such was conferred, — but as a new prerogative or quasi prerogative writ (the equity arm of the court’s original jurisdiction) which, together with its associates, would fully equip the court as a court of final resort “on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives or the liberties of the people.” In this definition of its purpose w-e -adopted the view of the supreme court of Wisconsin, in Attorney General v. Railroad Companies, 35 Wis. 425, construing an identical constitutional provision, as follows: “And, plainly recognizing the intention of the Constitution to vest in this court one jurisdiction, by several writs, to be put to several uses, for one consistent, congruous, harmonious purpose, we must look at the writ of injunction in the light of that purpose, and seek its use in the kindred uses of the other writs associated with it. ‘Noscitur a sociis’ is an old and safe rule of construction, said to have originated with as great a lawyer and judge as Lord Hale, peculiarly applicable to this consideration. Lord Bacon gives the same rule in a more detailed form, more emphatic here. ‘Gopulatio verborum indicat acceptationem in eodem sensu.’ Here are several writs of defined and certain application'classed with one of vague import. We are to be guided, in the application of the uncertain, by its certain associates. The joinder of the doubtful writ with the defined writs operates to interpret and restrict its use, so as to be accepted in the sense of its associates; so that it and they may harmonize in their use, for the common purpose for which it is manifest that they were all given. And thus, in this use and for this purpose, the Constitution puts the writ of injunction to prerogative uses and makes it a quasi prerogative writ. ’ ’ The writ is classed as correlative to the writ of mandamus, to be resorted to to restrain excess, just as mandamus may be used in the same class of cases to compel action and supply defects. Its use was limited to eases strictly publici juris — those which directlv affect the sovereignty of the state, its franchises or prerogatives, or the liberties of the people, and in which the interests of the state are primary and not remote. After further consideration of the subject, we are satisfied that the limitation of its use thus made is proper. Public and private rights may be involved in the same case, and, in protecting the public rights, private rights may incidentally bp protected and enforced; yet the rights of the public — that is, of the state — must be the paramount and moving consideration.
Section 6255 of the Revised Codes, among other things, provides: “No action to obtain an injunction must be commenced in the supreme court, except in cases where the state is a party, or in which the public is interested, or the rights of the public are involved, but the proper district court has jurisdiction of all injunctions, and the commencement of all actions therefor, except as in this section provided. The supreme court may provide rules for the commencement and trial of actions for injunctions in that court.” As has already been said, the use of the writ and its associates is by the Constitution lodged .exclusively in the discretion of this court. Therefore the legislature may not define or limit their use. Nevertheless, in this provision we have a legislative definition of the purposes for which it may be used, which is the same, though expressed in different terms, as that laid down in State ex rel. Clarke v. Moran, supra. Under the definition thus made by the legislature, a right of the state, or, what is the same thing, some public interest, must be the subject of the controversy, put in issue by the state itself as a party, or by someone acting in its behalf or by its authority. In the case of Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829, 70 Pac. 517, this court issued a writ of injunction. But this was as an auxiliary only, for the purpose of preserving the subject of the action until the appeal could be determined. This was in no sense an exercise of original jurisdiction.
In this case no interest of the public — that is, of the state— is involved. In its comprehensive sense, the term “public” is. the opposite of the term “private,” and applies to the affairs, of the state or some division thereof, as opposed to those of a. private citizen. A municipality, such as the city of Helena, possesses two classes of powers: (1) Those which are governmental, legislative, or public; and (2) those which are proprietary or private, or, as is sometimes said, quasi private. In the exercise of the first, it is an instrumentality of 'the state government, and, to the extent of its powers of this character,, it is a part of the state sovereignty. It is the public to its inhabitants and those who fall within the purview of its authority. In the exercise of the second class of powers, it does not act as an agency of the government, but rather as a legal personality or corporate individual representing the private advantage of the compact community for the government of which it is. created. (1 Dillon on Municipal Corporations, 4th ed., sec. 66 ; Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518, and eases cited.) Therefore, in seeking to provide a water system and a supply for itself and its inhabitants, it acts exclusively in its private corporate capacity, and, in all controversies arising in connection with this enterprise, it stands, for the time being, upon the same footing as any other private corporation, and is entitled to invoke the same remedies, and no others. In the prosecution of this proceeding it acts in its private capacity; not as a representative of the sovereignty of the state. Therefore it must be remanded to the appropriate district court for such relief as it may be entitled to.
In anything said herein we do not wish to be understood as holding that a state court may in any case issue an injunction to stop proceedings in a federal court.
The order to show cause is set aside, and the proceeding dismissed.
Dismissed.
Mr. Justice Holloway
: In State ex rel. Clarke v. Moran, this court determined that it does not have the jurisdiction sought to be invoked in this proceeding, and, while I do not subscribe to all that is said in that case, the decision ought not to be reversed except for the most cogent reasons. It is necessary that due consideration be given the former decisions of courts of last resort, to the end that litigants may know upon what they are to rely. I concur in the result reached by the Chief Justice, primarily upon the ground of stare decisis; but, if it be assumed that this court has original jurisdiction in equity cases, the record before us does not justify an order directing the dismissal of the suit in the federal court or the suit instituted by the Custer Mines Consolidated Company; and, with those cases pending, it is not made to appear that any advantage whatever would accrue to the city of Helena by having the Lokowich suit dismissed. If this court has jurisdiction, it ought to be exercised only in cases where the wrong to be averted is imminent and substantial relief can be awarded. The presentation of a mere abstract right, without any beneficial result to flow from it, is not sufficient to justify interference.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an action to recover the sum of $7,311.50 and interest The complaint alleges that, prior to and at the date of the death of John Boehme, a partnership existed between Boehme, Roberts, and Fitzgerald; that the partnership property consisted of a certain mining lease; that Boehme owned seven-sixteenths of such-interest; that, from the death of Boehme, Roberts and Fitzgerald operated the property covered by the lease for fourteen months at a net profit, over all expenses, of $17,910; that Boehme’s estate was entitled to $7,836.50; that Fitzgerald -retained the portion belonging to Boehme’s estate, and, though demand has been made upon him, he has refused to pay over the same, or any part, except the sum of $525. Issues were joined, and the cause brought to trial. The court sustained an objection to the introduction of any evidence on the part of the plaintiff, and rendered and had entered a judgment for defendant. From that judgment this appeal is prosecuted. The only question presented is: Does the complaint state a cause of action ?
It is not clear, from the allegations of the complaint, whether Boehme, Roberts, and Fitzgerald wrere mining partners or general trading partners. If they were mining partners, the death of Boehme did not operate to dissolve the partnership, and his estate succeeded to his interest, and occupies the same relative position that Boehme would occupy, if alive. (27 Cyc. 763; Higgins v. Armstrong, 9 Colo. 38, 10 Pac. 232; Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho, 241, 28 Pac. 433.) Since the other partners owned a majority interest, they were entitled to the management and control. (Rev. Codes, see. 5544.) If the relationship existing between these parties was that of general trading partnership, the death of Boehme dissolved the partnership (section 5494); but the surviving partners were still entitled to continue in possession and to settle the partnership affairs (section 7607). It would be their duty to account to the administratrix of Boehme’s estate, and upon failure to do so they could be compelled by summary proceedings. (Section 7607, above.) The section of the Code to which -reference has just been made also provides that the administratrix may maintain against the surviving partner “any action which the defendant could have maintained.” In the matter of relief, then —aside from the remedy furnished through the probate court— the personal representative of the decedent occupies the same relative position, with reference to the surviving partners, that the deceased, if alive, would sustain to his copartners.
In the absence of a settlement of the partnership business, one partner cannot maintain an action at law against his copartner with reference to the partnership affairs. This rule is recognized uniformly. (30 Cyc. 461, and cases cited.) In Doll v. Hennessy Mercantile Co., 33 Mont. 80, 81 Pac. 625, this court said: “One partner cannot sue his copartner at law to recover his share of the firm assets. The amount to which he is entitled always depends upon a settlement of the partnership affairs and an adjustment of the balances between the partners”; citing McMahon v. Thornton, 4 Mont. 46, 1 Pac. 724. In Riddell v. Ramsey, 31 Mont. 386, 78 Pac. 597, we said: “The individual interest of one partner in the firm assets can only be ascertained by a settlement of the partnership [citing cases]. Such settlement can only be accomplished by agreement of the partners, or by an action in equity for an accounting, settling their several interests. ’ ’ The reason for the rule which denies to one partner the right to sue another at law before a settlement is had is apparent. One partner does not own or have a right to any specific portion of the partnership property. Section 5469, Revised Codes, provides: “The interest of each member of a partnership extends to every portion of its property.” In Parsons on Partnership, section 112, it is said: ‘ ‘ Every partner owns the whole partnership property, subject to equal ownership of every other partner; and no one partner can make his own ownership of any part absolute, or relieve it from the encumbrances of the ownership of the others, without their consent. * * * But, although no partner owns absolutely any part of the property, he has an interest in the whole.” In 30 Cyc. 444, the same thing is said in effect, as follows: “The interest of a partner in the firm assets is not that of a tenant in common, or of a joint tenant, at common law. It is the share to which he is entitled under the partnership contract, after the firm debts are paid and the partners’ equities are adjusted.”
Confessedly, the profits made by Roberts and Fitzgerald belonged to the partnership, and constituted a part of the .partnership assets (Rev. Codes, secs. 5468 and 5485); but until a settlement of the partnership affairs is had, one partner cannot assert a right to any particular portion of the firm property. In 30 Cye. 445, it is said: “As firm property is not owned by the partners in severalty, but belongs to the partnership, it follows that neither partner is entitled to exclusive possession of the firm estate, or of any item of property composing it. If a partner wrongfully asserts such exclusive possession, the other partners may obtain relief in equity; but they cannot maintain a purely possessory action at common law.”
This complaint does not state whether there are firm debts outstanding, whether losses were incurred prior to Boehme’s death, or whether any settlement or adjustment of the partnership business has ever been had. In Riddell v. Ramsey, above, this court held, in harmony with the authorities generally, that a complaint in an action at law by one partner against another, which fails to allege that a settlement has been had, does not state a cause of action. Since Boehme’s personal representative is not in any better position in this respect than Boehme himself would be, if alive, this complaint does not state a cause of action, and the trial court’s ruling was correct.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
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] |
PER CURIAM.
The appeal in the above-entitled cause is hereby dismissed in accordance with motion of counsel for appellants.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In October, 1907, Lewis B. Bender made application in the United States land office for patent to the Friday lode claim. Within the period of publication of notice, William C. Orton filed his protest and adverse, claiming that a portion of the ground included in the Friday claim belongs to, and is included in the boundaries of, the Merchant lode claim, owned by Orton. The adverse was allowed and proceedings in the land office stayed. Within thirty days thereafter, this action was commenced by Orton to quiet title to the area in conflict. The plaintiff claims the disputed portion, by virtue of his location of the Merchant lode claim, made February 20, 1906. The defendant claims the same ground by virtue of the Friday lode claim, which it is alleged was located August 16, 1905. The cause having been brought to issue was tried to the court without a jury. Findings of fact and conclusions of law were made, and a decree rendered and entered, adjudging plaintiff to be entitled to the disputed territory. From that judgment and an order denying him a new trial, the defendant appealed.
The trial court found that in August, 1905, Bray and Spencer, the predecessors of defendant, made discovery of mineral-bearing rock in place and posted notice, claiming the ground as the Friday lode claim; that they marked the boundaries, and, on October 26, filed for record the declaratory statement containing the matters required by statute. Finding No. 5 is as follows: “That neither of said locators, Bray or Spencer, or either of them, or the defendant, at any time within sixty days, or at any time prior to February 20, 1906, subsequent to August 16, 1905, sank or caused to be sunk, at the point of discovery, or elsewhere upon said claim, a shaft at least ten feet deep from the lowest part of the rim of such shaft at the surface, or of any greater depth than eight feet and nine inches. ’ ’ The court further found that the locators of the Friday claim, after posting notice, altered the notice by changing the date from August to October, for the purpose of postponing the time within which the development work would have to be done, and that they used as a part of their discovery shaft an old, abandoned hole. Finding No. 20, made by the court, follows: “That the locators of the alleged Friday lode claim did not, at any time prior to the 20th day of February, 1906, intend in good faith to sink a discovery shaft upon said lode or claim to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary to show a well-defined crevice or valuable deposit, within sixty days from the date of posting said notice upon said claim.” The court also found that Orton made discovery and a valid location of the ground in controversy on February 20, 1906, and perfected his location of the Merchant lode claim.
While there are many assignments of error, counsel for appellant in their brief say: ‘.‘The only serious question in this case is whether or not the Friday locators sunk the Friday discovery shaft ten feet below the lowest point of the rim before February 20, 1906, when respondent initiated his Merchant lode location.” They also contend that the evidence preponderates in favor of an affirmative answer to this question. We are not able to agree with counsel that there is not a substantial conflict in the evidence as to the extent and character of the development work done on the Friday lode claim prior to February 20, 1906.
Since the defendant relies upon a discovery made in August, 1905, and insists that by virtue of the acts done by him and his predecessors in interest the area in conflict was withdrawn from the public domain, and was not subject to location on February 20,1906, when plaintiff made discovery and attempted to locate the Merchant claim, it must appear that the defendant complied with the requirements of the law prior to February 20, 1906. Those requirements in force at that time were: “ (1) The discovery of a vein or lode; (2) the posting of a notice of location at the point of discovery containing the matters designated by section 3610 [Political Code, 1895]; (3) the marking of the boundaries on the ground, and the doing of certain development work, designated in section 3611; and (4) the filing for record of a declaratory statement containing the matters mentioned in section 3612.” (Butte Consolidated Min. Co. v. Barker, 35 Mont. 327, 89 Pac. 302, 90 Pac. 177; Butte Northern Copper Co. v. Radmilovich, 39 Mont. 157, 101 Pac. 1078; Thornton v. Kaufman, 40 Mont. 282, 135 Am. St. Rep. 618, 106 Pac. 361.) The development work which the statute then required, so far as involved here, consisted in sinking “a shaft upon the lode or claim to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface,, or deeper, if necessary to show a well-defined crevice or valuable deposit.” (Section 3611, above.)
In speaking of this development work, the court, in Butte Consolidated Min. Co. v. Barker, supra, said: “The doing of this development work and the filing for record of the declaratory statement are purely statutory requirements, which the state may rightfully exact in addition to the acts required by federal statutes.” And again: “The requirements that a shaft be sunk upon the claim ten feet deep, or deeper, if necessary to-disclose a well-defined crevice or valuable deposit, * * * has a double purpose in view: ‘ (1) To demonstrate to a reasonable degree of certainty that the deposit sought to be located as a lode is in fact a vein of quartz or other rock in place; (2) to compel the discoverer to manifest his intention to claim the-ground in good faith under the mining laws.’ ”
The trial court found that the defendant failed to comply with- the requirements of the statute in a material respect. To secure a reversal of this finding, the appellant in this court must assume the burden of showing from the record that the evidence preponderates against the finding made. In Kift v. Mason, 42 Mont. 232, 112 Pac. 392, this court said: “It is, the rule in this state, now too well established to be open to further controversy, that on appeal in an equity case the findings of the trial court will be sustained, unless it appears that the evidence preponderates against such findings”; citing Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Pope v. Alexander, 36 Mont. 82, 96 Pac. 203, 565; Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860.
It appears from the record that the presiding judge of the trial court was invited to inspect the property in controversy during the course of the trial, and counsel for respondent in their brief assert that such inspection was made. We shall assume this to be the fact, though it is not of very much consequence here. A review of the evidence discloses a very pronounced conflict upon almost every question presented for determination, particularly upon the question of the character and extent of the development work done upon the Friday claim. To set forth even a brief summary showing the conflict would not serve any useful purpose.
It does not aid defendant that the trial court in some of its findings apparently discredited witnesses for the plaintiff. In Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013, we held that the credibility of a witness is a matter exclusively for the trial court to determine, in a case submitted without a jury. The trial court had the witnesses before it, heard them testify, observed their demeanor on the witness-stand, and was in a much more advantageous position to judge of their credibility and of the weight to be given to their testimony, than are the members of this court. Upon the evidence before us, we cannot say that the trial court was not fully justified in finding that the locators of the Friday claim did not do the development work required by law — in fact, that they did not act in good faith in attempting to locate the Friday claim.
One ground of the motion for a new trial is accident and surprise, which ordinary prudence could not have guarded against, and another is newly discovered evidence. Issue was made upon the validity of the location of the Friday claim in the pleadings, and defendant cannot now be heard to say that plaintiff attacked that location upon a ground different from the one he was led to believe would be relied upon by the plaintiff. A party litigant must prepare himself to meet all issues raised by the pleadings, and if he does not do so, he cannot plead accident or surprise after he has been defeated. In Hill v. McKay, 36 Mont. 440, 93 Pac. 345, this court considered a similar question, and our observations then made are pertinent here and conclusive against appellant on this ground of his motion.
Defendant presented to the trial court an affidavit of J. H. Crone, to the effect that affiant had measured the discovery shaft on the Friday claim in 1905, and then ascertained that it was more than ten feet deep from the lowest part of the rim. Plaintiff presented a counter-affidavit by J. H. Tiggerman, to the effect that he has known Crone for sixteen years, that he knows Crone’s reputation for truth and veracity in the neighborhood where he lives, and that the same is bad. In Landeau v. Frazier, 30 Mont. 267, 76 Pac. 290, this court said: “In most respects this new evidence would be merely cumulative and of an impeaching nature. As the granting or refusing of a new trial upon the ground of surprise or newly discovered evidence rests largely in the discretion of the trial court, and as the record does not disclose an abuse of discretion in this instance, the ruling of the court below will not be disturbed”; citing numerous cases. The language just quoted is peculiarly applicable here.
The record includes all the evidence taken before the trial court touching the discovery and location of the Merchant claim, although there is not any attack made upon that location. It is conceded that the Merchant claim is valid, if the ground was open to entry on February 20, 1906. Much needless expense has been incurred in preparing the transcript for this court. Counsel for appellant in their brief assert that respondent is responsible for this, but the only recital in the record is: “On October 6, 1909, and within the time allowed therefor by the court, defendant duly served his proposed bill of exceptions upon plaintiff; and within time allowed therefor plaintiff duly served his proposed amendments of 127 pages upon defendant. The amendments were thereafter allowed by the court and incorporated herein.” It is impossible for us to determine the character of the amendments proposed. It does not appear that counsel for defendant objected to the allowance of the amendments, and we must assume that they were proper and cor rectly incorporated as a part of the record. Error must be made to appear. It will not be presumed.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantlt and Mr. Justice Smith concur.
|
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] |
MR. JUSTICE PREEBOURN:
This is an action brought by Clayton Richardson, plaintiff and respondent, against Emma Crone, defendant and appellant, for services rendered in combining and hauling wheat.
Following an instruction from the trial judge, the jury returned a verdict for plaintiff and against defendant. From a judgment in plaintiff’s favor, defendant appeals.
The complaint alleges: That at defendant’s request, plaintiff, between August 11 and August 19,1949, combined and harvested the wheat on 357 acres of land and hauled 3,933 bushels of grain from the land to the grain elevators at Whitetail, Montana; that the agreed price for such services was $3 per acre for the combining and 5‡ per bushel for the hauling; and that payment for such services had not been made. Judgment was asked in the amount of $1,267.65 with interest thereon at the rate of six per cent per annum from August 20, 1949.
The answer admitted such services were rendered and the value thereof, but denied the amount was owing. Such answer set up a counterclaim wherein it was alleged that such services were performed under an oral contract whereby plaintiff agreed, when defendant notified him the wheat was ready, to immediately start five machines combining such wheat; that on August 7, 8 and 10, 1949, she notified him the wheat was ready for harvesting and to bring five combines; that on August 11, 1949, plaintiff commenced combining with but one combine and on August 17 started four additional combines; that on August 15 standing wheat was damaged by wind and hail; that had plaintiff started five combines, as agreed, the damaged wheat would have been harvested before the wind and hail came; and that defendant thereby lost 2,109.04 bushels of wheat valued at $4,218.08. Judgment was asked for $4,218.08, less the $1,267.65 claimed by plaintiff, with interest on such difference.
By reply plaintiff put in issue the new matters contained in the answer.
But one witness testified. This was defendant, who called as a witness by plaintiff. When asked, ‘ ‘ Just what were the terms of the contract?,” she said, “That he should come on to my place as soon as my grain was ready for combining, come on with five machines and do the work, and I was to pay him three dollars an acre plus five cents per bushel for hauling, for his services, and I was to drop him a card. He said he would come in three or four days to look at the grain again, it wasn’t quite ready. * * * In the meantime I was to drop him a card and keep him posted.
“Q. Was there anything- else said at that time, was that all that was said about the terms of the contract ? A. I think we’ve covered it, he was to come with five machines when the grain was ready. * * * Just how it was worded between us and all that, I can’t remember the exact wording after two years, but he did agree to come with five machines. ’ ’
Defendant’s testimony shows that the contract between the parties was a grain combining and hauling contract only. She testified:
“Q. Well, at that time you didn’t have any idea that you were making- any kind of a contract but a combining and grain hauling contract ? A. That’s right. ’ ’
Defendant’s testimony also makes it clear that, in making the oral contract, it was not within the contemplation of the parties that plaintiff would be liable for damage to the grain by hail or weather, even though plaintiff did not commence combining with five machines.
She testified:
‘ ‘ Q. And did you mention to him at that time, that you expected him to insure your crops against any acts of God ? A. No.
“Q. Never mentioned anything like that to him at that time? A. No, I didn’t * * * Acts of God? No, it never occurred to me to ask him to insure me against any acts of God. * * *
“Q. You didn’t expect him at that time to assume any responsibility to you for any loss or damage to your crops by hail, did you? A. No.”
R. C. M. 1947, sec. 13-714, is controlling here. It provides that, ‘ ‘ However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.”
The authorities generally agree that the damages recoverable in cases such as this must be limited to such as may fairly be supposed to have been within the contemplation of the parties when they entered into the contract. Myers v. Bender, 46 Mont. 497, 129 Pac. 330, Ann. Cas. 1916E, 245; Hall v. Advance-Rumley Thresher Co., 65 Mont. 566, 212 Pac. 290; Healy v. Ginoff, 69 Mont. 116, 220 Pac. 539.
In Hayes v. Cooley, 13 N. D. 204, 100 N. W. 250, 251, a case where plaintiff sought to foreclose a thresher’s lien and wherein the defendants counterclaimed for damages to flax which plaintiff failed to thresh as agreed, the North Dakota Supreme Court said: “Upon the facts of this case we are compelled to hold, both upon principle and authority, that the defendants cannot recover the damages in question. The fundamental error in their contention lies in the assumption that where a thresher ■ has, by failure to perform his contract, exposed crops to storms, and they are thereby destroyed, the loss is the natural and proximate consequence of his breach of contract. It is true, subsequent events may, and in this case they do, show that the loss would not have occurred but for the delay; but the indisputable fact remains that the storm is the direct and efficient cause of the loss, and for such loss, save under contracts resting upon exceptional circumstances, to which we will hereafter refer, he is not liable. It is well settled that, where one’s failure to perform his contract merely exposes- property to destruction by causes for which he is not responsible, the supervening cause, and not his failure to perform, is the proximate cause of the loss. * * * The findings in this case merely present the breach of an ordinary contract to thresh grain. The loss of crops which may follow the breach of such a contract is, as we have seen, a remote, and not a natural and proximate, consequence of the breach.” See also, Lynn v. Seby, 29 N. D. 420, 151 N. W. 31, L. R. A. 1916E, 788.
The record shows, when plaintiff rested his case upon the testimony of defendant and made his motion for a directed verdict, that defendant gave no indication that she had any evidence to offer and made no move to call any witness to the state.
One may well assume that the only possible witnesses to the making of the oral contract were plaintiff and defendant, and since neither side called plaintiff as a witness, and defendant having’ given a version of the contract and alleged breach thereof most favorable to her, the trial judge was in a position to properly decide the question of law raised by the motion for a directed verdict. See, Williamsburg City Fire Ins. Co. v. Lichtenstein, 181 App. Div. 681, 169 N. Y. S. 146.
This assumption is given color by the fact that the record discloses that no objection was made by defendant either to the motion for a directed verdict as made, or to the instruction by the court directing the jury to bring in such verdict.
"Where, upon the trial of an issue by a jury, the ease presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto.” R. C. M. 1947, sec. 93-5205.
In Consolidated Gold & Sapphire Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152, 156, this court said: "So, too, whenever the defendant has failed to make proof of his defense, but has left the plaintiff’s ease, as shown by his evidence, uncontroverted, and this stands unimpeached so that but one inference may be drawn from it; and that favorable to the plaintiff, it has been the practice for the court to direct a verdict for the plaintiff. This course was pursued in Mayer v. Carothers, 14 Mont. 274, 36 Pac. 182, and was recognized as the proper rule of practice in Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969, and Murray v. Hauser, 21 Mont. 120, 53 Pac. 99. When a case is in this condition, it is stripped of questions of fact, and presents only a question of law for decision by the court. Helena Nat. Bank v. Rocky Mt. Tel. Co., 20 Mont. 379, 51 Pac. 829, 63 Am. St. Rep. 628; Emerson v. Eldorado Ditch Co., supra; Murray v. Hauser, supra; Dunseth v. Butte Electric Ry. Co., 41 Mont. 14, 108 Pac. 567.”
For the reasons stated the judgment of the district court is affirmed.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICE BOTTOMLY, concur.
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MR. JUSTICE ANDERSON:
John Kendrick was found guilty of the crime of assault in the first degree. Hé was sentenced to a term in the penitentiary. His appeal is from the judgment of conviction and from an order denying him a new trial.
The incidents leading up to the crime with which defendant was charged took place on a ranch in Carter County, Montana.
Henry Nuhn, his wife, Oney Nuhn, and their child lived in a house belonging to Henry’s father, George Nuhn. On the night of August 16, 1952, Henry Nuhn and his wife were awakened by George Nuhn who inquired of Henry when he was going to vacate the house where he was residing.
Later, during the same night, the defendant, who resided on the ranch wherein the alleged assault was committed, sought entrance to Henry Nuhn’s house and upon being admitted made the remark that he was there to clean house. The defendant thereupon started toward Oney Nuhn in. a threatening fashion. Oney Nuhn picked up a .22 rifle and attempted to repel the defendant with the butt of the rifle. The defendant took the rifle away from Oney Nuhn and turned it upon her and shot her. The defendant then declared, “I’ll get all of you.” Henry Nuhn then picked up a shot gun and fired it at a close range toward the defendant, inflicting upon him a serious but not fatal wound.
The defendant, after falling to the floor, arose and went out of the house and proceeded to another building where he got a 30-40 rifle. In the meantime Henry Nuhn helped his wife, by putting her and the child in an automobile, and started to drive toward town in search of medical aid.
Sam Shepard attempted to dissuade the defendant from using the 30-40 rifle but was pushed aside by the defendant who said, “he’d get them.” Whereupon defendant went out of the building and fired upon the automobile which was being driven by Henry Nuhn in which were Oney Nuhn and their child. The bullet hit the automobile and exploded. There is evidence that particles of the bullet struck Henry Nuhn and the child.
The state elected to rely upon its evidence of the assault occurring wdien defendant discharged the 30-40 rifle at Henry and Oney Nuhn when they were departing from the ranch home they were occupying. The claimed assault tending to show that Oney Nuhn was shot by defendant with a .22 rifle was not involved and the jury was so instructed.
Gus Klentworth, a deputy sheriff, testified that on the morning after the fracas above described he went to the ranch and while there found, among other things, a 30-40 rifle leaning against the building to which the defendant went to get said rifle after being shot; that the stock and breach of the gun were covered with blood. He also found a 30-40 cartridge case on the ground and an examination of the gun revealed a cartridge in the barrel and one in the chamber.
Testimony of Dr. Sion F. Sherell was given which showed that he had treated the defendant for the wounds defendant sustained as a result of the shot fired by Henry Nuhn; that it was two and a half hours after the defendant was wounded beforedie saw him; that at the time he made the initial examination of the defendant, he talked intelligently and answered questions in an intelligent manner. Some effort was made in the brief and argument to indicate that defendant, as a result of his wounds, went into a state of immediate shock and thus was unable to have the intent necessary to commit the crime with which he was charged. The record does not justify us to come to any such conclusion. The fact that he went after the 30-40 rifle after being shot, and then pushed aside the witness Shepard who attempted to stop him from using the gun to carry out his express desire, “ I ’ll get them, ’ ’ discourages the possibility that shock was present. This is especially true when two and one-half hours after he was shot his attending physician found the defendant to be in “moderate” shock and further testified that there was no particular rule about shock; that where it may immediately affect one person it would not affect another.
The question of whether or not appellant had the requisite intent to kill was one for the jury to be decided from all the evidence presented relevant to the point. We find no legal reason, from an examination of the record, to disturb its finding on this point.
Other theories advanced by the defendant are as follows: That the shot' fired at the. moving’ automobile was an accident and that the shot was fired in self defense.
These theories, in view of the record presented on appeal, are wholly without merit. If the theories presented a defense at all in the instant case, they were resolved by the jury and will not be disturbed upon appeal since there is substantial evidence to support the finding’s of the jury. See State v. Broell, 87 Mont. 284, 286 Pac. 1108; State v. Neely, 90 Mont. 199, 300 Pac. 561.
The appellant’s last contention is that the court erred in refusing to allow the following instruction to be given to the jury, viz: “If you are not satisfied beyond a reasonable doubt that the defendant discharged the firearm with the intent to kill Henry and Oney Nuhn, or either of them, but that the same was accidentally discharged, then your verdict shall be in favor of the defendant.”
The court did instruct the jury as follows: “You are instructed that if you find from the evidence beyond a reasonable doubt that the Defendant did wilfully and wrongfully fire and discharge a rifle at Henry Nuhn and Oney Nuhn, or either of them, with the intention on the part of him, the said Defendant, to kill the said Henry Nuhn and Oney Nuhn, or either of them, then you should find the Defendant guilty.” And: “You are instructed that if you believe from the evidence that the gun of the defendant, at the time of the alleged assault, was accidentally discharged, then j^on shall find the defendant not guilty.”
The refusal of the trial court to give the requested instruction is not error because the instruction, even if we assumed it to be legally accurate, was adequately covered by the instructions which were given and the rights of the defendant were fully protected. State v. Messerly, 126 Mont. 62, 244 Pac. (2d) 1054; State v. Bosch, 125 Mont. 566, 242 Pac. (2d) 477.
The judgment of the district court is affirmed.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, ANGSTMAN and FREEBOURN, concur.
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] |
MR. JUSTICE FREEBOURN:
Application for a writ of prohibition. Relators secured a verdict, at the hands of a jury, upon trial of an action for damages in the district court. The trial judge being disqualified, Judge R. M. Hattersley was called in upon motion for a new trial and granted such motion. It is relators’ contention that the action of Judge Hattersley in granting such new trial came too late.
On July 29, 1953, Judge Hattersley, after arguments made by counsel upon the motion for a new trial, made in part the following oral order, as appears on the records of the district court: “* * * Thereupon all parties having rested said matter was submitted to the court. Whereupon court decided matter not considered submitted until all briefs are in, said defendants (Phillips Dairies et al.) allowed 20 days to submit brief and plaintiff (E. R. Kraut) to submit reply to brief 10 days thereafter.”
It is admitted in the answer and return of plaintiff (Kraut) that the last brief to be filed under the court’s order of July 29, 1953, was, after service thereof on opposing counsel, filed with the clerk of the district court on August 25, 1953.
Intending to get quick action from a trial court in passing upon motions for a new trial, our legislature enacted R. C. M. 1947, sec. 93-5606, which in part provides: “* * * the court shall decide the motion within fifteen days after the same is submitted. If the court shall fail to decide the motion within said time, the motion shall, at the expiration of said period, be deemed denied.
Under the issues raised in this proceeding, the question to be answered is: Was the motion for a new trial submitted when the last brief was filed on August 25, 1953, or was it submitted upon the last day allowed for the filing of such brief, August 29, 1953 ?
When plaintiff Kraut filed his brief on August 25, 1953, the court had before it all the briefs contemplated by the order of July 29, 1953, which briefs constituted everything necessary to deciding the motion for a new trial. Since the court had everything necessary to a decision on the motion for a new trial on August 25, 1953, it could have decided such motion the next day, if it so desired, or any day thereafter within the time allowed by statute.
The 30 days allowed for briefs were for the benefit of the parties. It did not set the time when the motion for a new trial was deemed submitted, except and only if the briefs or some of them were not filed within such time. In such event the court could, after the lapse of such thirty days, pass upon the motion. That the court, in mailing its order of July 29, 1953, contemplated the matter would be considered when the briefs were in, and not at the end of the 30 day period given for their filing, seems clear, in view of the words of the order, “* * * matter not considered submitted until all briefs are in * *
In McCarthy v. Employers’ Fire Ins. Co., 97 Mont. 540, 37 Pac. (2d) 579, 582, 97 A. L. R. 292, we said: “* • * a case is not ‘submitted’ to the court sitting -without a jury, until all that is necessary to a decision is before the court * *
In Crane v. Leclere, 204 Iowa 1037, 216 N. W. 622, 624, the court said: “It is manifest that there was something yet to be done before the submission was complete, and that was the filing of the respective briefs by the contending parties, within the time allowed by the court; and the case could not be considered as finally submitted until the briefs had been filed or the time for the filing of the same had expired. * * * The effect of granting time to file briefs was that the case was not finally submitted for determination by the court until the court could have the briefs for the consideration of the matters before him, or until the expiration of the time granted for the filing of same. * * * ” To the same effect is Plattsmouth Loan & Bldg, Ass’n v. Sedlak, 128 Neb. 509, 259 N. W. 367.
We conclude, with reason, that when the briefs of counsel were all filed and the court had before it everything necessary to decide the motion for a new trial, then and at that time, August 25, 1953, the law considered the said motion as having-been submitted. Since the court did not decide such motion for a new trial “within fifteen days after” such submission, the motion at the expiration of said period was “deemed denied” and the court’s ruling made on September 11, 1953, granting a new trial was null, void and of no effect. See State ex rel. King v. District Court, 107 Mont. 476, 86 Pac. (2d) 755.
For the reasons stated a peremptory writ will issue restraining the Honorable R. M. Iiattersley, district judge presiding, from taking any further action on the motion for a new trial in cause No. 22641, in the records and files of the district court of the first judicial district of the State of Montana, in and for the County of Lewis and Clark.
MR. JUSTICE BOTTOMLT, concurs.
|
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MR. JUSTICE ANGSTMAN:
This is an original application for a writ of mandate to require Judge McConoehie to call in Judge Watts of Musselshell county to preside over a certain probate proceeding pending in Fergus county. The facts set out in the application are these: George L. Lux died in November 1944 in Fergus county, leaving a last will and testament devising and bequeathing his property to his nine brothers and sisters, share and share alike and in which Katherine Simpson was named as executrix; by agreement the will was admitted to probate and Katherine Simpson was appointed as executrix; thereafter and in August 1946 relatrix as one of the legatees and devisees filed an affidavit disqualifying Judge McConoehie the resident judge, on the ground of imputed bias and prejudice; in July 1947 Judge McConoehie made an order calling in Judge Derry of Yellowstone county to preside in the probate matter, who thereupon assumed jurisdiction; in December 1952 Judge Derry made an order withdrawing from the ease; relatrix thereafter through her counsel made repeated requests of Judge McConoehie that he appoint Judge Watts under R. C. M. 1947, sec. 91-2001, to assume jurisdiction in the proceeding, as he is the judge nearest to Lewistown; although there were matters in said estate ready for hearing and although Judge McConoehie promised to call in another judge to hear them, he did not do so and on April 13, 1953, relatrix made this application to this court; on April 14th, and before this court issued its alternative writ, Judge Mc-Conochie made an order appointing Judge Watts to assume jurisdiction in the estate.
Counsel for relatrix contends, however, that he has not yet received that which he sought and which he is entitled to because Judge McConoehie made his order under R. C. M. 1947, sec. 93-901, instead of under R. C. M. 1947, sec. 91-2001, and in consequence he is fearful that Judge Watts may in the passage of time find it to his advantage to relinquish jurisdiction as did Judge Derry. That, he contends, is the effect of an appointment under section 93-901, whereas he contends when the appointment is made under section 91-2001 the judge assuming jurisdiction must see it through to a conclusion, and relatrix desires to procure the appointment of a judge who will retain jurisdiction throughout the proceeding.
Is relatrix entitled to the appointment of a judge under R. C. M. 1947, sec. 91-2001? That section reads: “No will shall be admitted to probate, or letters testamentary or of administration granted, before any judge who is interested as next of kin to the decedent, or as legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, and any judge who shall have acted as attorney for the decedent in the preparation or drawing of the will, or as the attorney of the executor or administrator of the estate of any deceased person, in the administration of the estate of such deceased person, or as the attorney of any legatee or devisee under the will, or heir of the decedent, or of any person or persons claiming to be such legatee, devisee, or heir, shall, from and after the approval of this act, be disqualified from making any order, or rendering any judgment or decree, or doing anything whatsoever in the matter of the estate of such deceased person. Whenever it shall be made to appear of record that any judge presiding in any court in which proceedings in probate matters have been, or are about to be, instituted, is disqualified from acting therein, it shall be the duty of such judge to, as soon thereafter as practicable, request the nearest district judge to preside in the place of the judge so disqualified in such proceedings. It shall be the duty of the judge so requested, if he be not himself disqualified, to, from time to time as occasion may require, preside in the place of the disqualified judge in all proceedings in such probate matters. ’ ’
It is to be noted that this section in substance and effect disqualifies a judge when he is interested in the estate or has served as attorney for an interested party. It has nothing to do with disqualification for imputed bias or prejudice.
Counsel for relatrix relies upon the case of State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 Pac. 244, 247, as sustaining his right to the appointment of Judge Watts under R. C. M. 1947, sec. 91-2001. In that case the court said: “Section 180 [Code Civ. Proc. 1895, now R. C. M. 1947, see. 93-901], as amended, therefore, must apply to all proceedings provided for in the Code of Civil Procedure, unless a special provision is found in some part of it in conflict with that section, or the nature of the proceeding does not permit such application. Nor is section 2530, supra [Code of Civ. Proc. 1895, now R. C. M. 1947, sec. 91-2001], either as first enacted or as amended (Sess. Laws 1897, p. 244), in conflict with any provision contained therein. Such additional disqualifications as are declared in the act of 1897 are to be regarded as merely cumulative in character, and not exclusive.”
The contention made in the Nissler ease was that disqualification of a judge for imputed bias and prejudice under what is now R. C. M. 1947, sec. 93-901, could not be made in a probate matter. The language of the court above referred to is an answer to that contention and the court merely held that a judge may be disqualified for imputed bias and prejudice in a probate matter.
Neither that case nor any other that has been brought to our attention holds that when a judge is disqualified for imputed bias and prejudice in a probate matter, he must act under section 91-2001 in calling in the nearest district judge to preside in the matter. Judge McConochie acted properly when disqualified for imputed bias and prejudice under section 93-901 in calling in another judge under that section. Section 91-2001 has no application when the disqualification is for imputed bias and prejudice.
The only other question presented is whether relatrix is entitled to attorneys’ fees as damages, and if so, how much.
R. C. M. 1947, sec. 93-9112, provides in part: “If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, or as may be determined by the court or referees, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay. * *
Attorneys’ fees are damages within the meaning of this statute. State ex rel. Lynch v. Batani, 103 Mont. 353, 62 Pac. (2d) 565; State ex rel. Gebhardt v. City Council of City of Helena, 102 Mont. 27, 55 Pac. (2d) 671; State ex rel. Shea v. Cocking, 66 Mont. 169, 213 Pac. 594, 28 A. L. R. 772.
Does the fact that the court made the order sought, after the institution of the proceedings but before a hearing was had, affect the right of relatrix to damages and costs? This same question was before the Supreme Court of Kansas under a section substantially the same as our section 93-9112 and that court in Nolte v. Kansas City Long Distance Tel. Co., 86 Kan. 770, 121 Pac. 1111, 1112, said:
“Section 723 of the Civil Code (Gen. St. 1909, see. 6319) is cited as the only authority for rendering a judgment for the recovery of damages in an action of mandamus. It reads: ‘If judgment be given for plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in a civil action, and costs; and a peremptory mandamus shall also be granted to him without delay.’ The only question is whether the defendant in such an action can defeat the plaintiff’s right to recover the damages he has theretofore suffered by complying with the demand after the action is brought and before the time set for the hearing for the peremptory writ.
“The appellant concedes that the court, in its discretion, could tax the costs of the proceeding to the appellant. In McClure v. Scates, 64 Kan. 282, 67 Pac. 856, it is decided that the plaintiff in such an action may, ‘in the same proceeding and as a part of his remedy, recover such damages as he has actually sustained through the wrongdoing of the defendants’; also that the attorney’s fees and other expenses necessarily incurred are included in such damages. See, also, Larabee [Flour Mills Co.] v. [Missouri Pacific] Railway Co., 85 Kan. 214, 116 Pac. 901. Indeed, it is quite customary, in original actions of mandamus in this court, to allow the petitioner, if successful, to recover attorney’s fees and Other expenses as damages. This does not usually appear in the opinions filed, for the reason that such allowances are made, after the decisions are filed, upon motion.
“It is true that judgment was not rendered in favor of the appellee for one part of the remedy to which she was entitled, for the reason before stated. But the findings were in favor of the appellee, and there is the same authority under the section quoted for the court to ascertain and render judgment for the damages sustained as there is for assessing the costs against the appellant, and it would appear to be a travesty on justice that the defendant in an action could satisfy part of the remedy to which the plaintiff was entitled and thereby prevent the recovery of another part.”
In that case the court sustained a $50 attorney’s fee. The ruling in that case was adhered to under somewhat similar circumstances in Columbia Knickerbocker Trust Co. v. Finney, 93 Kan. 302, 144 Pac. 222.
Relatrix here is seeking the sum of $650 costs and damages of which $500 is claimed as attorneys ’ fees. At the hearing counsel for relatrix claimed costs for traveling from Harlowton to Lewistown and return several times to consult Judge Mc-Conoehie about calling in a judge and for living expenses while thus traveling. It is our view that this was a matter that should have been attended to by letter or telephone and is not a proper item of costs incident to the institution of the mandamus proceeding.
The court finds that a reasonable attorneys ’ fee,' costs and damages for instituting and prosecuting this proceeding is the sum of $250 and further determines that Judge Mc-Conochie appeared in this proceeding and made return thereto and defense therein in good faith.
Relatrix is accordingly entitled to judgment in the sum of $250 as costs and damages.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN, and ANDERSON, concur.
Order
PEE CURIAM.
It is ordered that relatrix’s memorandum of costs and disbursements be disallowed as included in the opinion heretofore rendered herein.
|
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MR. JUSTICE BOTTOMLY:
This is an appeal by Axel Nelson, executor, from a judgment dated March 21, 1951, and filed March 27, 1951, in favor of defendant, Howard S. Wheeler.
The question presented by this appeal concerns the ownership of certain United States savings bonds, series E, or the value thereof. Said bonds were issued to and registered in the name of Alpheus J. Wheeler, only.
It appears from the record that Alpheus J. Wheeler of Fair-view, Richland county, Montana, had conducted a mixed farming business and had accumulated considerable property, both real and personal. Sometime in the spring of 1947 he had been in and out of the hospital in Miles City, stopping at times with his half-brother, Howard S. Wheeler, the defendant herein, and his wife, Clara Wheeler/ He carried his belongings in a suitcase and hand bag. Apparently sometime in the spring of 1947 he returned to the hospital in Miles City, suffering from a kidney disease, although there was no medical testimony whatever introduced in the proceeding. All the evidence in regard to the physical condition and occurrences appertaining to deceased was given by lay witnesses.
Prior to November 7, 1947, deceased had undergone two am putations upon one of his legs. It is the contention of the defendant, Howard S. Wheeler, that on or about November 7, 1947, while Howard and his wife were visiting Alpheus at the hospital in Miles City, and just before visiting time was up, a fellow railroader friend of Howard’s, by the name of Alvin B. Tuelke, an ambulatory patient, came into the room and Howard introduced him to Alpheus; that while they were still talking Alpheus handed to Howard an envelope and said, “If I don’t get well, this is for you,” or words to that effect. The envelope contained United States savings bonds, series E, all registered in the name of said Alpheus J. Wheeler only, issued in the years 1945 and 1946, and in maturity denomination of two $1,000, two $200 and six $100, or a total maturity value of $3,000. Defendant contends that the transaction, being voluntary on Alpheus J. Wheeler’s part, and while the donor was suffering from a disease from which he finally died, a gift causa mortis was consummated. The defendant further contends that upon the death of Alpheus, the title to the bonds passed to the defendant, Howard S. Wheeler, and that he became the sole owner thereof.
Plaintiff Axel Nelson, administrator, contends that United States Treasury savings bonds, series E, under the contract and regulations pertaining thereto cannot be transferred by a gift causa mortis; that the trial court erred in holding to the contrary; that it erred in holding that the decedent during his lifetime made a valid gift of the bonds and that it erred in failing to hold that if a gift was in fact attempted, same was revoked by the decedent’s subsequent testamentary disposition of all his property. It is apparent that in no event would the title to the bonds pass until the death of Alpheus J. Wheeler.
The record shows that in decedent’s deposit box there were other United States savings bonds, made out in the name of both Alpheus and Howard S. Wheeler; the defendant could not remember how many but they were issued in the years 1945 and 1946. During the latter part of 1947 and 1948 Alpheus J. Wheeler was again in and out of the hospital at Miles City and he was a patient in the hospital at Billings, and in the hospital at Sidney.
On November 3, 1948, Alpheus J. Wheeler executed his last will in due testamentary form, nominating and appointing therein as his executor Axel Nelson, the plaintiff herein. Thereafter and on June 16, 1949, Alpheus J. Wheeler died. His will was admitted to probate by order of the court dated July 13, 1949, and letters testamentary issued to Axel Nelson on the same date. Thereafter Axel Nelson duly qualified as such executor and entered upon his duties as such executor and at all times since and now is the duly qualified and acting executor of the will and estate of Alpheus J. Wheeler, deceased.
On or about February 1, 1950, Axel Nelson, executor, discovered that United States savings bonds, series E, as described in his complaint and in the judgment entered therein, were in the possession of defendant Howard S. Wheeler. Said bonds were in the name of Alpheus J. Wheeler only. On or about the 9th day of February 1950 demand was made of Howard S. Wheeler for the possession of said bonds, but defendant refused to deliver them.
This suit was thereupon instituted by the executor to recover the bonds or the value thereof as a part of the assets of the estate. The trial of the issues.had before the court without a jury resulted in a judgment for defendant, the court finding that decedent had made a valid and complete gift causa mortis of the bonds.
The record shows that a year after decedent is alleged to have given the bonds to defendant, decedent duly made, executed, declared and published his last will and testament wherein he provided for the disposition of all his property, as follows:
“I, Alpheus J. Wheeler of Fairview, Montana, being of sound mind and legally competent, make and publish my last will as follows:
“I give, devise and bequeath to my half-brother, Howard S. Wheeler, of Miles City, Montana, the sum of $100.00.
“I give, devise and bequeath to Clara Wheeler, wife of Howard S. Wheeler, of Miles City, Montana, the sum of $200.00.
“I give, devise and bequeath to May Wheeler of Fairview, Montana, the sum of $1000.00.
“I give, devise and bequeath to J. W. Biehl of Fairview, Montana, the sum of $300.00.
“I give, devise and bequeath to John Kaufman of Glendive, Montana, the sum of $500.00.
“I give, devise and bequeath to B. R. Poff and Wilma Poff, his wife, of Sidney, Montana, in equal shares or to the survivor thereof, all of my cattle and the increase or the proceeds therefrom which are branded O-V on the left shoulder, which cattle are on the Poff Ranch in Richland County, Montana.
“I give, devise and bequeath all the rest, residue and remainder of my property to the Montana Children’s Home and Hospital at Helena, Montana.
“I nominate and appoint Axel Nelson of Sidney, Montana, the Executor of this Will to serve without bond at all times and he shall have full power and authority to sell, lease, exchange, mortgage, or otherwise handle or dispose of my property as I might have done if living, and full authority is given to execute such instruments as may be proper or required for any such purpose, and in the event of sale of real or personal property, the executor shall have full power to sell at public or private sale, with or without notice for cash or on terms and at such prices as he may determine without any order of any Court or Judge and without bond.
“I revoke all prior wills.
“Witness my hand and seal at Miles City, Montana, this 3rd day of November, 1948.
“Alpheus J. Wheeler (Seal)”
(Duly subscribed by two attesting witnesses.)
It is revealing to note that here the deceased made his solemn testamentary disposition of six specific bequests and then by his residuary clause devised and bequeathed all the rest, residue ánd remainder of his property to the Montana Children’s Home and Hospital.
At the time of making his last will Alpheus J. Wheeler was the legal and equitable owner of the bonds in question, as much so as he was owner of any other of his property. The mere fact, if it is a fact, that he gave the physical possession and custody of the bonds to the defendant did not alter his legal and equitable title and ownership. The defendant could not exercise any right of ownership in them; he was only the cutsodian thereof.
Apart from the foregoing, the ownership of these bonds turns upon the proper application of settled rules of the law of contracts. There is here a contract between the deceased and his government, by the terms of which the deceased, as registered owner, acquires the right to have the bonds paid only in accordance with the regulations under which the government issued them to him and reciprocally he is bound to dispose of his claim against the United States only as the regulations provide.
There is no question but that these bonds could have been reissued at any time during Alpheus’ lifetime naming Howard S. Wheeler as beneficiary, or the bonds could have been issued to Howard S. Wheeler individually if such had been the wish of the registered owner thereof, and in this way the full title and ownership could have been conveyed to Howard S. Wheeler. The latter testified that while in possession of the bonds he noted before Alpheus’ death that the bonds were issued in the name of Alpheus J. Wheeler only, but did not think it necessary to say anything to Alpheus about it. Howard took no steps to have the bonds reissued so as to conform with the requirements of the contract.
Alpheus J. Wheeler, being the registered owner of the bonds, was the legal and equitable owner thereof at all times until the instant of his death. Even if there were an attempted gift causa mortis on November 7, 1949, Alpheus J. Wheeler could at any time before his death revoke it. By his last will which he duly executed November 3, 1948, after making six specific bequests, he devised and bequeathed all the rest, residue and remainder of his property.
These bonds were issued under authority of 31 U. S. C. A. sec. 757e. The treasury regulations were promulgated under this authority and have the force and effect of federal law. United States v. Birdsall, 233 U. S. 223, 34 S. Ct. 512, 58 L. Ed. 930; United States v. Janowitz, 257 U. S. 42, 42 S. Ct. 40, 66 L. Ed. 120; Warren v. United States, 68 Ct. Cl. 634, certiorari denied 281 U. S. 739, 50 S. Ct. 346, 74 L. Ed. 1154. No state law can vary the terms of federal obligations or derogate from their full enforcibility. See Franklin Washington Trust Co. v. Beltram, 133 N. J. Eq. 11, 29 A. (2d) 854, 856; Irvine v. Marshall, 20 How. 558, 15 L. Ed. 994; Ruddy v. Rossi, 248 U. S. 104, 39 S. Ct. 46, 63 L. Ed. 148, 8 A. L. R. 843.
Our Federal Constitution gives to Congress the power to borrow money on the credit of the United States, U. S. Const, art. 1, see. 8, cl. 2, and “To make all Laws which shall be necessary and proper for carrying into Execution” this power, U. S. Const, art. 1, sec. 8, cl. 18; and especially should we' observe Article VI, clause 2, which provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound hereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The supremacy of the federal law in such matters has been established by many decisions. Compare: Lemon v. Foulston, 169 Kan. 372, 219 Pac. (2d) 388; Franklin Washington Trust Co. v. Beltram, supra; Harvey v. Rackliffe, 141 Me. 169, 41 A. (2d) 455, 161 A. L. R. 296, and cases therein cited; In re Bartlett, D. C., 71 F. Supp. 514; United States v. Janowitz, 257 U. S. 42, 42 S. Ct. 40, 66 L. Ed. 120; Maryland Casualty Co. v. United States, 251 U. S. 342, 40 S. Ct. 155, 64 L. Ed. 297; 11 Am. Jur., Conflict of Laws, sec. 8, p. 306.
The federal treasury’s regulations at the date and under which the bonds in question were issued' are the law of the case and such law is a part of the contract. These treasury regulations are contained in circular 530, sixth revision, Code of Federal Begulations, Title 31, secs. 315.1 to 315.63, inclusive, issued under 55 Stat. 7, 31 U. S. C. A. sec. 757c. Section 315.2 provides in part: “United States Savings Bonds are issued only in registered form. * * * The form of registration used must express the actual ownership of and interest in the bond and * * * -will be considered as conclusive of such ownership and interest.” The regulations further provide that the bonds are not transferable, may not be hypothecated or pledged and are payable only to the owner or owners named thereon, except in case of disability or death of the owner. (Sec. 315.11.) Upon the death of the owner, the bonds will be considered as belonging to his estate, and will be paid to the duly authorized representative of the estate or, upon his request, will be reissued in the names of the persons entitled to share in the estate, but in any event only in accordance with the provisions of the regulations. (Sec. 315.47.)
“Bonds of series E may be registered * * * (1) in the name of one person * * * (2) in the names of two * * * persons in the alternative as co-owners * * * (3) in the name of one * * * person, payable on death to one * * * other person * * *” and not otherwise. (Sec. 315.4.)
It is apparent from the regulations and clearly the intention of the law that “E” savings bonds shall not be transferable except in strict compliance with the requirement of registration. Thus by following the requirements of registration a gift, a gift in trust, or a gift effective at death, may be made.
The non-transferability of the bonds was a security for both the registered owner and our government, and this court has no power to waive any requirement or to rewrite the contract. Compare: In re Estate of Wallace, 266 Ill. App. 500; In re Hartman’s Estate, 44 Pa. Dist. & Co. 272; Saper v. Sussman, 185 Misc. 277, 56 N. Y. S. (2d) 377; In re Deyo’s Estate, 180 Misc. 32, 42 N. Y. S. (2d) 379; Moore’s Administrator v. Marshall, 302 Ky. 729, 196 S. W. (2d) 369, 168 A. L. R. 241.
To hold that a gift causa mortis of these bonds is valid would require this court to set aside the federal law and substitute the state law. This we may not do under our oath, U. S. Const., Art. VI, cl. 3, and the supremacy clause of our Federal Constitution, Art. VI, cl. 2, supra, and because of the supremacy of federal law a state law or rule has no application to the contract consummated by the issuance of such bonds. Lemon v. Foulston, supra.
There is not an abrogation of any state law relative to inheritance or passing of title to property, but there is a necessity of the recognition of the supremacy of the federal law in a matter relating to the borrowing power of Congress, and the necessity of a uniform procedure relating to federal savings bonds in all states, and no state statute or rule of law may stand in the way of enforcing the applicable federal law embodied in the contract as made.
The regulations make clear the steps to be taken in establishing the right to the bonds or their proceeds through the regular administration of estates and the probate of wills. While gifts of other securities and property causa mortis are recognized as valid in many instances under proper proof under state law, the disposition of United States savings bonds must be administered under federal law. It seems quite clear that the law under which these bonds were issued makes registration the sole evidence of ownership with the one exception in the regulations, 31 Code Fed. Regs., sec. 315.47, supra, recognizing the formal procedures for the administration of estates. It necessarily follows, and we hold, that United States savings bonds, series E, are not subject to gift causa mortis; that Alpheus J. Wheeler was the owner thereof at the time of his death; and that his executor is entitled to their possession and custody under the terms of their registration. See Moore’s Administrator v. Marshall, 302 Ky. 729, 196 S. W. (2d) 369, 168 A. L. R. 241. Compare : Fidelity Union Trust Co. v. Tezyk, 139 N. J. Eq. 316, 51 A. (2d) 105; Fidelity Union Trust Co. v. Tezyk, 140 N. J. Eq. 474, 55 A. (2d) 26, 173 A. L. R. 546; Weeks v. Johnson, Me., 82 A. (2d) 416; Lemon v. Foulston, supra; In re Owens’ Estate, 177 Misc. 1006, 32 N. Y. S. (2d) 747, 750; In re Bartlett, D. C., 71 F. Supp. 514; In re Ballard’s Estate, 161 Misc. 785, 293 N. Y. S. 31.
In a section of the regulations dealing with creditor’s rights, bankruptcy, receivers of insolvents and divorce decrees, provision was made for the determination by judgment or decree of a court of competent jurisdiction for a transfer by operation of law. These provisions plainly contemplate proceedings involving the bankruptcy of the registered owner or assignments for the benefit of his creditors, and divorce decrees. An exception, however, was made which precluded any decree or determination of a court upon an action or proceeding instituted for the purpose of giving effect to an attempted transfer by the owner.
The judgment is reversed and the cause remanded with directions to enter judgment for Axel Nelson, executor of the estate of Alpheus J. Wheeler, deceased, in conformity with the prayer of his complaint.
MB. CHIEF JUSTICE ADAIB, and ASSOCIATE JUSTICES FBEEBOUBN and ANDEBSON, concur.
MB. JUSTICE ANGSTMAN deeming himself disqualified took no part in the decision.
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Per Curiam.
On application made in open court by relators ’ counsel Charles F. Moses, leave is hereby granted him to withdraw from the files of the clerk of this court all papers other than the original affidavit and petition for alternative writ of mandamus and relators’ original brief; and
It is further ordered that this proceeding be, and it is, dismissed without prejudice.
|
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] |
Per Curiam.
Upon application of the defendant-appellant, in the above-captioned matter and Stipulation filed;
It is hereby ordered, that the appeal herein from the order denying motion for change of venue in the above-entitled cause be, and it is dismissed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMLY, concur.
|
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MR. JUSTICE ANGSTMAN:
Plaintiffs brought this action to quiet title to certain described real estate situated in Dawson County, comprising 2,880 acres. The defendants filed an answer in which they admit the plaintiffs are the owners of the land in question, but allege that they gave to the Ohio Oil Syndicate, one . of the defendants named, a certain oil and gas lease, which was duly recorded. They allege that the Ohio Oil Syndicate is a co-partnership consisting of defendants K. Hunter and E. J. Kinzler as co-partners. The answer denies that the defendants Naddy and J. F. Miskimen and his wife, Helen Miskimen, have any claim or interest in or to the property, and hence hereafter when referring to defendants we will be referring to all defendants save the Miskimens and Naddy. The answer alleges that the ■defendants have complied with the terms, conditions and covenants of the oil and gas lease, including the payment or tender of payment of oil delay rentals. Their prayer is that judgment be entered that the oil and gas lease be declared to be a valid, binding lease upon the lands described in the complaint.
The reply admits the execution of the lease but denies its validity. It admits that defendants Hunter and Kinzler are ■a co-partnership doing business under the name Ohio Oil Syndicate. It alleges that the lease in question was executed as a result of fradulent representations to the effect that the defendants would drill a well on or before May 11, 1952; that the defendant co-partnership, through its agent Naddy, was given the form of a lease which plaintiffs desired to have executed, and that he without the consent of the plaintiffs caused the lease to be drafted entirely different in form and contents, and that plaintiffs, relying upon the representations and having faith and confidence in the agent, signed the lease relying upon the fraudulent representation that the lease would be in the form which was submitted to him, and that the plaintiffs were thereby deceived and damaged.
The reply further alleges that the lease was executed without any monetary consideration received by plaintiffs. It further alleges that the defendants failed to commence the drilling operations prior to May 11, 1952, or at all, and by reason of their failure so to do the lease became null and void and of no effect.
Their reply further alleges that the plaintiffs have refused to accept or receive any delay rental after May 11, 1952; that, they notified Naddy as the agent of the other defendants that the oil and gas lease was terminated and void; that the same constitutes a cloud against the plaintiffs’ title to the lands,, which they desire to have removed from the records of Dawson County.
The cause was tried to the court without a jury. Judgment went in favor of the plaintiffs and defendants have appealed.
The court found that the association between the plaintiffs- and the defendant Naddy built up a relationship whereby the plaintiffs placed implicit reliance and confidence upon him; that the oil and gas lease was executed under the following fraudulent representations:
First, that the lease was obtained by Naddy under the representation that oil drilling operations would be commenced on the land on or before May 11, 1952, and that this promise or agreement induced plaintiffs to sign the lease without the payment of any bonus money;
Second, that the defendant Naddy, as the agent for the other defendants, was given the form of lease as modified by plaintiffs and which plaintiffs desired to have executed, which provided for the drilling or the commencement of the drilling ing of an oil well on or before May 11, 1952, and for the forfeiture of the lease if a well were not commenced within that time; that the lease was to be drafted in accordance with the terms set forth in the lease form delivered to Mr. Naddy by plaintiffs; that without the consent of the plaintiffs and without their presence Mr. Naddy caused the lease to be drafted entirely different in form and contents and contrary to what the plaintiffs desired and demanded to have incorporated in the lease; that plaintiffs in reliance upon the faith and confidence of Naddy and his representations signed the lease; that the plaintiffs’ signatures to the lease were procured because of Mr. Naddy’s fraudulent representation that defendants would commence the drilling of a well on or before the 11th day of May 1952; that by virtue of this promise to commence the drilling operations plaintiffs agreed to waive any cash payment or any cash consideration for the execution and delivery of the lease; that the fraudulent representations made by Naddy were known by him to be false at the time they were made to the plaintiffs, and they were made for the purpose of deception and that they thereby procured the signatures of plaintiffs to the lease; that plaintiffs accepted the representations as true and were deceived and damaged thereby.
The court concluded that the plaintiffs are now the owners of the land free and clear of any claim by reason of the execution of the purported oil and gas lease, which the court found to be utterly void and invalid and of no effect whatsoever. The court found also that the defendants have no interest in the land by reason of the lease, and that plaintiffs are entitled to judgment expunging the lease from the records as being void and of no effect.
The record reveals that plaintiffs were Italians who came to this country at the conclusion of World War I and settled about 15 miles southeast of Glendive on the land in question here. Both had become American citizens. Neither of them had the benefit of much schooling. It appears that Mable had a third grade education in Italy, but her husband had practically no schooling. When the oil boom started in eastern Montana, they received various offers to enter into oil and gas leases. They had an offer of $2.75 per acre bonus from the Shell Oil Company but this they refused and rejected because the oil company would not promise any oil drilling but wanted a ten-year lease where drilling could be deferred from year to year by the payment of delay rental. Plaintiffs did not want that sort of a lease and were willing to forego bonuses if they could get the land drilled. They entertained the notion that their land was underlaid with oil and they wanted it drilled out during their lifetime. At the time of the trial the husband was about 63 years of age while the wife was about 56. When Naddy first met plaintiffs he evinced an interest in uranium. He cultivated the acquaintance of plaintiffs by making several visits to their ranch ostensibly in search of uranium. According to plaintiffs’ testimony he- finally sought an oil and gas lease and offered to do the necessary drilling within one year if a lease would be executed to him. The plaintiffs were assured that if no drilling were commenced within one year after the execution of the lease, the lease would terminate. Mr. Naddy delivered to plaintiff a form lease the night before it was actually signed, and Mrs. Giarratana, by the use of a dictionary, worked it over during the night and made such changes in it as she thought necessary so as to have it provide definitely that the drilling should be done within one year’s time or the lease would be forfeited. The following day they went to the office of a friend of plaintiffs’, Mrs. A. J. McCarty, to have the lease typewritten. Mrs. Giarratana handed to Mrs. McCarty the copy of the lease which she had worked over and asked her to copy it on the typewriter. Naddy picked up the copy and supervised the preparation of the final lease by telling Mrs. McCarty what to incorporate in the lease. Mrs. McCarty thought he was giving her the information to put on the final lease from the copy which had been delivered to her by Mrs. Giarratana. Mrs. McCarty knew of the fact that they had been offered a bonus of $2.75 per acre, and asked why they were rejecting such an offer. Mrs. Giarratana replied they were interested in obtaining a drilling contract and not a ten-year lease, regardless of the bonus, and assured Mrs. McCarty that Naddy was going to drill within a year. She told Mrs. McCarty that what they desired was to have drilling- operations within the year, and if not that the lease should be forfeited at the end of the year.
The record justifies the findings and conclusions reached by the trial court with respect to fraud. We can do no better than to allude to the authorities referred to by and the trial judge in his findings of fact and conclusions of law wherein reference was made to the case of Hale v. Hale, 62 W.Va. 609, 59 S.E. 1056, 1058, 14 L.R.A., N.S., 221, where the court said: “A court of equity is a court of conscience and will not tolerate unfairness, inequitable conduct, or corruption * * * however strong and clear his equitable right against the other party. * * * There is a vast difference, too, between the status of one who has received nothing for that with which he has parted, and as to whom the transaction was wholly fradulent, and that of a man who has made a contract by which he has not only parted with something, but received something in exchange, and in which the fraud operated only partially, reaching the substance to be sure, but not constituting the basis of the entire transaction.”
And to the case of Knutsen v. Alitak Fish Co., 176 Wash. 169, 28 Pac. (2d) 334, 337, where the court quoted with approval from the case of American Savings Bank & Trust Co. v. Bremerton Gas Co., 99 Wash. 18, 168 Pac. 775, as follows: “ ‘Fraud is a thing- to be described, rather than defined. Deception may find expression in such a variety of ways that most courts have studiously avoided reducing its elements to accurate definition. Human foresight is not sufficiently acute to anticipate the secret and covert methods of the artful and designing of those who endeavor to reap where they have not sown. Once let it be known what the courts consider fraudulent and those engaged in its perpetration will busy themselves in inventing some means of evasion. The courts therefore should content themselves with determining from the facts of each case whether fraud does or does not exist. While fraud is not lightly to be inferred, it does not follow that the inference of fraud cannot be gathered from surrounding circumstances, provided they are of sufficient strength and cogency to overcome the presumption of honesty and fair dealing.’ ”
And to the same general effect are Eckert v. Miller, 57 Ariz. 94, 111 Pac. (2d) 60, and McGinn v. Tobey, 62 Mich. 252, 28 N.W. 818, 4 Am. St. Rep. 848. As before stated, we find ample evidence in the record to sustain the trial court’s findings and judgment with respect to fraud. True, some of that evidence was denied by evidence offered on behalf of defendants, but these conflicts were resolved by the trier of the facts. We are not at liberty to substitute our judgment for that of the trial judge where, as here, there is ample evidence supporting the findings. Finding no reversible error in the record, the judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANDERSON, DAVIS and BOTTOMLY, concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiff, an employee of the defendant railway company, was injured while in the discharge of his duties as section-hand, and brought this action to recover damages. He contends that he was required to work with a pick, the points of which had become- so worn and dull that the use of it greatly increased the hazards of his employment; that about September 1, 1922, he complained to the foreman in charge, who promised to have it sharpened or to supply a sharpened pick; that he relied upon the promise and continued to use the defective tool; that on September 24, while engaged in an ef fort to split or chip off the top of an old tie in order that it might be replaced by a new one, the pick, because of its dull condition, failed to penetrate the wood but glanced off, striking a rock and dislodging particles of rock, some of which struck him in the face and eyes, causing the injury of which complaint is made. Upon the trial and at the conclusion of all the evidence the court directed a verdict for the defendant, and plaintiff appealed from the judgment dismissing his complaint. The correctness of the trial court’s ruling sustaining defendant’s motion and directing a verdict is the ultimate question before us.
Section 9364, Revised Codes, 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.” In the interpretation of that statute, this court has announced the following rules:
(1) Upon a motion for a directed verdict in favor of the defendant, the evidence introduced by the plaintiff will be considered in the light most favorable to him and as proving whatever it tends to prove.
(2) A cause should never be withdrawn from the jury, unless the conclusion from the facts follows necessarily, as a matter of law, that a recovery cannot be had upon any view which can be drawn reasonably from the facts which the evidence tends to establish.
(3) In reviewing an order directing a verdict for the defendant, this court will consider only the evidence introduced by the plaintiff, and if that evidence, when viewed in the most favorable light, tends to establish the case made by the plaintiff’s pleadings, the order will be reversed. (Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Lehane v. Butte Electric Ry. Co., 37 Mont. 564, 97 Pac. 1038; Moran v. Ebey, 39 Mont. 517, 104 Pac. 522; Carroll v. King, 59 Mont. 403, 196 Pac. 996; Mitchell v. Northern Pac. Ry. Co., 63 Mont.. 500, 208 Pac. 903; Long v. Davis, 68 Mont. 85, 217 Pac. 667.)
The term “plaintiff’s evidence,” as employed in the foregoing rules, excludes merely a bare scintilla, but includes every fair inference which may be drawn from the facts proved and, as well, any evidence introduced by the defendant which tends to support the plaintiff’s case.
In considering the evidence before us, allowance must be made for the crude manner in which the witnesses expressed themselves. Plaintiff is an Albanian, his witness Miller is a Greek, and his witness Maros a foreigner also. As disclosed by the record, these witnesses had a very limited knowledge of the English language; but evidence is not to be weighed by the elegance of diction or the terseness of expression, but by its intrinsic worth.
The record discloses that the plaintiff went to work for the defendant as a section-hand on the section at Drexel about the end of July, 1922; that Paulos was the section foreman; that, when the picks became dull from use, they were gathered up once a month and sent to the shops at Deer Lodge or Tacoma to be sharpened; that new or sharpened picks were delivered once a month by the supply car which came through about the 20th of every month; that, during the summer of 1922, there was a strike of blacksmiths at the shops and new or sharpened picks were not delivered from June until December; that, when plaintiff went to work, the supply car had already passed this section for the month of July; that he knew when the car passed through in August, but did not know that the car had passed in September before he was injured, although it had done so.
Counsel for defendant insist that the evidence is insufficient to carry the case to the jury. They argue, first, that it does not disclose that the pick was in a defective condition, or, stated differently, that it was not in a reasonably safe condition.
It is made to appear that a pick in a reasonably efficient condition has prongs which are from eight to ten inches long; that, at the time plaintiff went to work, all the picks in use on this section were somewhat dull, the points being about as thick as the end of a man’s little finger; that by constant use they became much duller, so that at the time of the injury the prongs were only six or seven inches in length and the points as thick as the end of a man’s thumb-.
Miller testified that when a dull pick strikes a rock it causes more particles of rock to fly than will a sharp pick; that a blow from a sharp pick will cause the point of the pick to penetrate a tie and it will not glance off.
Plaintiff testified that a sharp pick will not break a rock as much or cause particles of the rock struck to scatter as much as will a dull pick. He testified further: “It was dangerous to work with those picks, because dull picks will fly large dirt up and no stick in tie.” And again: “While- working before at Drexel, it breaks a rock and hits me on the legs.”
We think this evidence, with other evidence of like character in the record, is sufficient, if not contradicted, to justify a jury in finding that the pick was not in a reasonably safe condition for use, and that the use of it increased the hazards of plaintiff’s employment.
Again, it is contended that the evidence fails to disclose the proximate cause of plaintiff’s injury. It does appear that, at the time of his injury, plaintiff was in the discharge of his duties, removing old ties and replacing them with new ones; that he- was using his pick, attempting to- split or chip off the top of an old tie in order to remove it; that he struck three blows, the first two of which were ineffective for any purpose; that when he struck the third blow, the pick failed to penetrate the tie, but glanced off, passed through a thin covering of fine dirt and struck something, with the result that a hard substance flew up, striking the plaintiff in the- eye and causing a severe injury. On cross-examination, plaintiff testified: “Don’t know what hit me in the eye * * * something hard hit me in the eye.”
Miller testified that immediately after the injury he examined the place where plaintiff’s pick struck and1 discovered a rock which had been hit by a pick, the blow dislodging particles of the rock. Maros, who was working with the plaintiff at the time, testified: “Sam [plaintiff] started to chip off the top, started chipping off tie two or three times and pick slip, hit rock, and rock was thrown over and hit him in the eye; I seen myself the rock, could tell it was hit. I see the mark on rock after he hit it. * * * Some rock flew by me but didn’t hit me.”
It is the rule in this jurisdiction, and elsewhere generally, that the proximate cause of an injury may be proved by indirect evidence (De Sandro v. Missoula L. & Ry. Co., 48 Mont. 226, 136 Pac. 711); indeed, more often than otherwise, it is a matter of inference from the facts disclosed by the evidence. Under almost identical circumstances, the supreme court of Iowa held this evidence sufficient to make out a prima facie case, and we agree with that conclusion. (Swaim v. Chicago, R. I. & P. Ry. Co., 187 Iowa, 466, 174 N. W. 384.)
Again it is insisted that the evidence fails to show a suffi cient complaint, a sufficient promise to repair, or a reliance upon the promise, if one was made. Plaintiff testified: “Complained to Paulos about it being dangerous to work with that pick before and after I got hurt on the leg. * * * I told the foreman we got to have some tools, because the tools is kind of dangerous working like this. He say he ordered the roadmaster to send some to us. * * * The foreman told us to do the best we can. * * * He said this week or next week some time the picks will come. The foreman told me would have to wait for the supply car to get the picks. I said, I told him that the picks were dangerous. Danger would be somebody getting hurt because of the dull picks.”
Paulos testified: “All the men' said that the tools are not suitable to work with. * * * Whenever the boys make that complaint, I told them that I had ordered picks, and was expecting them in the supply car. * * * In the month of August I made a requisition for some sharp picks. Every month I made that requisition.”
In answer to the question, “What made you stay on and work with dangerous picks?” the plaintiff replied: “He told me there come some more'picks; I believed him, that is why I stayed. * * * Suppose Paulos had told me that we wouldn’t get any new picks, I would quit.”
In 4 Labatt on Master and Servant, section 1345; the rule established by the current of authority is stated as follows: “When complaining of defective instrumentalities of machinery, it is not necessary that the servant shall state in exact words that he apprehends danger to himself by reason of the defects, nor need there be a formal notification that he will leave the service, unless the defects be repaired or remedied. It is sufficient, if from the circumstances of the case it can bé fairly inferred that the servant is complaining on his own account, and that he was induced to continue in the service by reason of the promise.” And in section 1343 the author says: “Any acts or expressions by which the servant gives the proper agent of the employer to understand that he is unwilling to continue in the employment unless the cause of danger is removed constitute a sufficient complaint, and any acts or expressions by which such agent gives the servant to understand that the cause of danger will be removed constitute a sufficient promise.”
In Hermanek v. Railway, 186 Fed. 142, 108 C. C. A. 254, the court said: “The evidence discloses that the plaintiff, on one or two occasions before the injury in question, complained to Barry, the foreman, of the worn and defective condition of the bars in question, and that they were dangerous to use; Barry stating in response thereto that he would fix them or send them to Clinton to be fixed. Whether the evidence in this regard shows a specific promise upon the part of Barry to procure new or repaired bars, that plaintiff so understood Barry’s premise, and relied upon the same, is not altogether clear; but the evidence in this respect is of such a character that it should have been submitted to the jury to say whether or not Barry’s statements to plaintiff were intended by Barry, and under stood by plaintiff, to be a promise that new or repaired tools would be furnished, and whether plaintiff continued to work with the tools, relying' upon such promise.”
In support of their contention that the promise, if made, was not relied upon, counsel for defendant direct attention to the testimony of plaintiff given on cross-examination, to the effect that, if he had not been injured, he would have continued the employment and the use of the defective pick. But counsel would have us reverse the rule, and consider plaintiff’s testimony in the light most unfavorable to him, and this we may not do. But even if we consider the evidence referred to, it does not follow that a jury would not be justified in finding that the promise of defendant was the inducing cause tor plaintiff’s continuing his work.
In Missouri, K. & T. Ry. Co. v. Brown (Tex. Civ. App.), 180 S. W. 1117, the court said: “The fact that the jury found, npon testimony which seems to have warranted it, that the plaintiff intended to continue in the employment of the defendant, using the lifting jack, ‘if he hadn’t got his finger hurt,’ does not, under all the facts and circumstances in evidence, require a holding that he did not rely upon the promise to furnish a new jack. . The plaintiff had the right to wait a reasonable time for the fulfillment of the foreman’s promise to provide for him and his associates a new jack, and his statements upon which the jury’s finding here under consideration was based, and the finding itself, are subject to the interpretation that the plaintiff meant, and the jury found, that his intention was to continue in defendant’s service until the new jack arrived, and not indefinitely, regardless of the defective condition of the jack that hurt him, and the failure of the foreman to provide the new one.”
Whether plaintiff did continue to work with the defective pick for .an unreasonable time after the promise was given was a question for the jury to determine. (Breen v. Iowa Cent. Ry. Co., 159 Iowa, 537, 141 N. W. 410.)
In Diehl v. Swett-Davenport Lumber Co., 14 Cal. App. 495, 112 Pac. 561, the court said: “But when the promise is that the repair shall be made upon the happening of a certain event, the master assumes the risk until the event has happened and for a reasonable time thereafter.”
In Atchison, T. & S. F. R. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343, the court said: “The employee has still a reasonable time after the employer is in default before he is required either to quit the service or assume the risk.”
We are satisfied that these authorities state the rule correctly.
• Paulos was the foreman in charge of these men. He had general supervision and direction of their work; kept their time; made requisitions for supplies, including new or sharp picks, upon printed forms furnished to him by .the railway company. He had charge of the tools, which he kept in a toolhouse at night, and this toolhouse he kept locked and retained the key himself. In Prezeau v. Davis, 67 Mont. 523, 216 Pac. 773, this court said: “For the purpose of providing a safe place for an employee to work, or of assuring him that a known defect will be remedied, a foreman is the representative of the employer.” (Grant v. Nihill, 64 Mont. 420, 210 Pac. 914; 4 Labatt on Master and Servant, sec. 1344, and the cases cited in the notes.)
We conclude that plaintiff’s evidence, when viewed in the light most favorable to him, required a submission of this case to the jury, unless the character of the instrumentality with reference to which the promise was given, affects the result and compels a different conclusion.
It is conceded by counsel for plaintiff that the pick in question is a simple tool within the meaning of that term as it is employed in the law of master and servant, and it is over the application of the so-called simple tool doctrine' that the particular controversy herein is waged.
The general principles of law which define the duty of the . master, and define and limit the doctrine of assumption of risk, are well settled, and, for the purposes of this appeal, may' be stated briefly as follows: It is the duty of the master to exercise ordinary care to provide the servant with reasonably safe tools and appliances, and to see that they are kept in a reasonably safe and suitable condition for use. If the servant, with knowledge that the appliance furnished for his use is in a dangerously defective condition and, with an appreciation of the danger which its continued use involves, voluntarily continues to use it, he assumes the risk. If the appliance furnished for the use of the servant is a simple tool, he assumes the risk of injury arising from the use of it. Upon the statement and application of these principles, counsel for the respective parties agree.
It is also a rule equally well settled that, if the servant discovers that the appliance furnished for his use is in a dangerously defective condition, and he makes proper complaint to the master, and the master promises to repair the defect, the servant, in reliance upon that promise, may continue the employment and the use of the defective appliance for a reasonable time during which period he is relieved of the burden of assumption of risk, unless the danger is of such imminent character that a reasonably prudent person would not be justified in taking the chances of injury. As we understand counsel, they agree upon the statement of this rule but fail to agree upon its proper application, and the fact that they fail to agree is not surprising when it is recalled that the courts of last resort are unable to agree upon the same question.
Counsel for defendant contend that the rule should be so limited in its application as to exclude from its benefits the servant who is injured through the use of a defective simple tool, and direct our attention to decided cases which lend support to their view. The leading one is Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56, decided in 1886. The case involved an injury arising from the use'of a defective ladder, and the New York court denied to the plaintiff the right to recover, upon the theory that the general rule stated above is not applicable to a case of injury arising from the use of a simple tool or appliance. Curiously enough the court, after thus limiting the application of the rule, proceeded to hold that the plaintiff had failed to prove that the ladder was defective. The court said: “'The evidence would not justify a recovery, for the reason that the defendant [master] did not fail in furnishing a proper ladder for the use of the plaintiff.”
The rule has its very foundation in the fact that the appliance with which the servant is required to work is in a defective condition, and, by reason thereof, the hazards of the employment are increased. If the appliance is not defective, there cannot be any room for the application of the rule or for a discussion of its limitations; hence it would seem to follow that, in so far as it limits the application of the rule, the decision of the New York court is obiter dictum. But even so, the case has been followed in other jurisdictions, and was followed by the supreme court of New York in Baumwald v. Trenkman, 88 N. Y. Supp. 182, decided in 1904.
Corcoran v. Milwaukee Gaslight Co., 81 Wis. 191, 51 N. W. 328, likewise grew out of the use of a defective ladder. After referring to the general rule above, the court said: “The allegations here fail to bring the case within the- rule stated. Besides, as indicated in Marsh v. Chickering, 101 N. Y. 396, the rule is hardly applicable to a case like the one at bar.” Meador v. Lake Shore & M. S. Ry. Co., 138 Ind., 290, 46 Am. St. Rep. 384, 37 N. E.. 721, also involved an injury arising from the use of a ladder. The court limited the rule so as to exclude the servant injured by the use of a simple tool, upon the authority of Marsh v. Chickering, and Corcoran v. Milwaukee Gaslight Co.
The ease of Webster Mfg. Co. v. Nisbett, 205 Ill. 273, 68 N. E. 936, grew out of an injury caused by the use of a defective hammer. The court applied the same limitation to the rule, citing Marsh v. Chickering and Meador v. Lake Shore & M. S. Ry. Co., and the decision was followed in Gunning System v. Lapointe, 212 Ill. 274, 72 N. E. 393, and in Kistner v. American Steel Foundries, 233 Ill. 35, 84 N. E. 44.
McGill v. Traction Co., 79 Ohio St. 203, 128 Am. St. Rep. 705, 19 L. R. A. (n. s.) 793, 86 N. E. 989, involved an injury arising from the use of a stepladder, and the court there followed Marsh v. Chickering, Meador v. Lake Shore & M. S. Co., and Gunning System v. Lapointe.
In Turkey Foot Lumber Co. v. Wilson, 182 Ky. 42, 206 S. W. 14, the court referred to cases which had established the simple tool doctrine in that state, and said: “And, as here recognized and applied, it absolves the master from liability to the servant for injuries sustained in using such a simple tool, even though there has been a promise to repair or an assurance of safety.” This was followed in Cincinnati, N. O. & T. P. Ry. Co. v. Burton, 184 Ky. 2, 211 S. W. 186.
The force of these decisions is impaired somewhat by the fact that the courts simply ignored the authorities holding the contrary view.
Counsel for defendant also cite Musser-Sauntry L. L. & M. Co. v. Brown, 126 Fed. 141, 61 C. C. A. 207, Railway Co. v. Kelton, 55 Ark. 483, 18 S. W. 933, Rahm v. Railway, 129 Mo. App. 679, 108 S, W. 570, and Brewer v. Coal Co., 97 Tenn. 615, 37 S. W. 549; but these eases are not in point.. In Musser-Sauntry L. L. & M. Co. v. Brown, the decision is placed squarely upon the ground that injury from using the defective appliance was so imminent that the servant was culpably negligent in continuing to use it, even after a promise by the master to repair; and the decision in Railway Co. v. Kelton is placed upon the same ground. In Rahm v. Railway, the injury which gave rise to the action was inflicted in Illinois, and the Missouri court merely applied the rule as it existed in Illinois. The decision in Brewer v. Coal Co. involved only a question of pleading. It was held that there was not any allegation that the servant relied upon the master’s promise, and it was not disclosed how long before the accident the promise was made.
We have searched these authorities for a reason for the limitation thus imposed upon the general rule, but have failed to find any satisfactory to us. In Marsh v. Chickering, it is said that.the rule which relieves the servant from the assumption of risk after the master’s promise to repair has been given “is one of a just and salutary character, designed for the benefit of employees engaged in work where machinery and materials are used, of which they can have but little knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely familiar.” That language is referred to approvingly in Meador v. Lake Shore & M. S. Ry. Co., Webster Mfg. Co. v. Nisbett and Corcoran v. Traction Co., above. If these courts mean what they say, then the application of the rule to the facts of any given case depends upon the extent of the servant’s knowledge of and familiarity with his working tool, rather than upon the simplicity or complexity of the instrumentality itself. If the rule was intended only for the benefit of laborers using machinery and materials, of which they have but little knowledge, then it sets a premium upon ignorance and stupidity. It denies the right to recover, not only to the servant who uses ■ simple tools, but as well, to every skilled mechanic using the most intricate machinery, if he has the mental capacity and technical knowledge to understand his machine, know its defects and appreciate the danger of using it in its defective condition. If it applies only to the servant using machinery so complicated that even an expert machinist can acquire but little knowledge of it, then the rule is so restricted that it is useless when viewed from a practical standpoint.
In Gunning System v. Lapointe, the Illinois court said: “The cases where the rule of assumed risk is suspended, and the servant exempted from its application under a promise from the master to repair or cure the defect complained of, are those in which particular skill and experience are neees sary to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge, and not those eases where the servant is engaged in ordinary labor or the tools used are only those of simple construction, with which the servant is as familiar and as fully understands as the master.” This court also fails to suggest any reason why the expert mechanic, who knows the defects in the machinery with which he works, appreciates the danger of using it in its defective condition, in fact, is just as familiar with it as is the master, should be relieved of the assumption of risk' by the master’s promise to repair; but the same immunity should be denied to the servant who uses a simple tool with which he is no more familiar than is the expert with his machine.
A rule without reason would not commend itself to anyone, and there must be some rational theory underlying the rule which relieves the servant of the assumption of risk after the master has promised to repair.
Speaking generally, the risk is upon the master in the first instance, by virtue of the contract of employment. The burden shifts to the servant when, with knowledge of the defective appliance and an appreciation of the danger, he voluntarily continues to use it, under the maxim volenti non fit injuria. The effect of the servant’s complaint, then, must be this: “I am unwilling to continue to use the defective tool, because, if I am injured by the use of it, I will be held to have assumed the risk, and I will quit the employment rather than take the chances of injury.” If the master’s promise is to be given any effect whatever, it must be held to be tantamount to saying to the servant: “If you will continue the employment and the use of the defective tool for a reasonable time, I agree to relieve you of the burden of assumption of risk which otherwise would fall upon you.” By continuing the employment in reliance upon that promise, the servant accepts the offer, and a new agreement is created.
In Holmes v. Clarke, 6 Hurl. & N. 349, the English court said: “It must be considered that the master takes upon himself the responsibility- of any accident that may occur during that period.” Referring to that case, Labatt (4 Labatt on Master and Servant, sec. 1348) says, that the effect of the master’s promise “is to bring into existence a new stipulation which operates so as to east upon the master temporarily the responsibility for the particular risk in question.”
In Eureka Co. v. Bass, 81 Ala. 200, 8 South, 216, it is said: “The assurances of the employer that the danger shall be removed is an agreement by him that he will assume the risk incident to the danger for a reasonable time,” and this is approved in Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 248, 47 Am. Rep. 785, 17 N. W. 378.
In St. Louis I. M. & S. Ry. Co. v. Holman, 90 Ark. 555, 120 S. W. 146, it is said: ‘ ‘ The effect of a promise to repair by the master, and of the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation whereby the master assumes the risks impendent during the time specified for the repairs to be made. Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail himself of the defense of assumption of the risk by the servant continues for a reasonable time,” and this is followed in Clark Lumber Co. v. Johns, 98 Ark. 211, 135 S. W. 892.
In Swift & Co. v. O’Neill, 187 Ill. 337, 58 N. E. 416, the court stated the general rule above and said: “The reason of this rule being, that by the promise of the master a new relation is created between him and the employee, whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following his promise.” To the same effect are Morden Frog Works v. Fries, 228 Ill. 246, 119 Am. St. Rep. 428, 81 N. E. 862, and Scott v. Parlin, & Orendorff Co., 245 Ill. 460, 92 N. E. 319.
It is the rule in New York that the promise of a master to repair, when made to induce the servant to continue to work, constitutes a contract on the part of the master to assume the risk and relieve the servant therefrom. (Rice v. Eureka Paper Co., 174 N. Y. 385, 95 Am. St. Rep. 585, 62 L. R. A. 611, 66 N. E. 979; Altman v. Schwab Mfg. Co., 54 Misc. Rep. 243, 104 N. Y. Supp. 349; Citrone v. O’Rourke etc. Co., 113 App. Div. 518, 99 N. Y. Supp. 241.)
In Trotter v. Furniture Co., 101 Tenn. 257, 47 S. W. 425, it is said: “The assurance of the master that the defect shall be remedied is an agreement by him that he will assume the risk for a reasonable time.” If this be the correct theory, and we think it is, then we cannot perceive any reason for saying that the master’s agreement shall be binding upon him when made with the servant who is required to use a complicated instrumentality, but that the same agreement is not binding upon him when made with the servant who uses a simple tool. Just how the simplicity or complexity of the instrumentality can affect the validity of the agreement is beyond our comprehension.
But counsel for defendant insist that, since, in this state, the risk of injury arising from the use of a simple tool is one of the ordinary risks of the employment (Miller v. Granite County Power Co., 66 Mont. 368, 213 Pac. 604), the promise of the master to repair a simple tool cannot have the effect of imposing liability upon him, since none existed before the promise was given, and in support of that contention quote from 4 Labatt on Master and Servant, section 1347, the following: “Before the master can be held liable as for a failure to perform a promise to remove a specific danger, it is necessary to show that the existing conditions were of such nature that their maintenance implied culpability.” The authorities cited in support of the text, and the following paragraph of the same section, however, disclose that the language quoted means only that it must be shown that the appliance was actually defective, and, by reason thereof, the hazards of the employment were increased. The author continues: “The very effect of the doctrine of the promise to repair is to make the master liable when he would not be liable otherwise because of the operation of the doctrine of assumption of risk.”
The situation of the servant using the simple tool and the one using the complicated machinery is precisely the same at the moment complaint is made and the promise to repair is given. In effect the servant using the simple tool says: “I will not continue to use this defective appliance, for in ease of injury I will be held to have assumed the risk; hence I will quit the employment rather than take the chances of injury.” And the effect of the master’s promise to repair must be: “If you will continue the employment and the use of the defective tool for a reasonable time, I agree to relieve you of the burden of the assumption of risk which otherwise would fall upon you, by reason of the fact that the risk of injury from the use of a simple tool is one of the ordinary risks of your employment. ’ ’
Some of the leading cases which apply the rule to simple tools as well as to complicated ones, and refuse to recognize the limitation imposed by the New York court, are Fischer v. Chicago, M. & St. P. Ry. Co., 154 Minn. 78, 191 N. W. 262; Swaim v. Chicago, R. I. & P. Ry. Co., above; Brouseau v. Kellogg, S. & S. Co., 158 Mich, 312, 27 L. R. A. (n. s.) 1052, 122 N. W. 620; Barr v. Pen Carbon M. Co., 81 N. J. L. 712, 80 Atl. 930; Hermanek v. Railway, above; Missouri, K. & T. Ry. Co. v. Puckett, 62 Kan. 770, 64 Pac. 631; Cudahy Packing Co. v. Skoumal, 125 Fed. 470, 60 C. C. A. 306; Shea v. Seattle Lumber Co., 47 Wash. 70, 91 Pac. 623.
In the following cases the rule was applied to injuries arising from the use of simple tools without considering the distinction sought to be made by the New York court: Alkire v. Myers Lumber Co., 57 Wash. 300, 106 Pac. 915; Notthoff v. Los Angeles, G. & E. Co., 161 Cal. 93, 118 Pac. 436; Cincinnati, N. O. & T. P. Co. v. Robertson, 139 Fed. 519, 71 C. C. A. 335; Gold-Hunter M. & S. Co. v. Johnson, 233 Fed. 857, 147 C. C. A. 523; Ohio & Pittsburgh Milk Co. v. Fehl, 187 Fed. 792, 109 C. C. A. 640; Shue v. Central of Georgia Ry. Co., 6 Ga. App. 714, 65 S. E. 697; Sapp v. Christie Bros., 79 Neb. 701, 705, 113 N. W. 189, 115 N. W. 319; Dailey v. Swift & Co., 86 Vt. 189, 84 Atl. 603.
In Spencer v. Worthington, 44 App. Div. 496, 60 N. Y. Supp. 873, decided in 1899, the court, after referring to Marsh v. Chickering, and other New York cases, said: “The learned counsel for the respondent, from an elaborate analysis of the decided cases in this state, deduces the rule that, where only simple appliances are used, the servant assumes the risk of their character or condition, so far as they are known to him, notwithstanding any promise of the master; but, where machinery is used, the promise of the master to repair defects relieves the servant from assuming the risk. We do not see on what principle such a rule can well stand. There is a great difference between the use of a steam boiler and that of a stepladder. * * * But when, because the servant is an expert, or for any other reasons, his knowledge of the danger arising from the use of the boiler is just as great as an ordinary servant would possess in the use of a stepladder, we do not see on what ground any distinction can be drawn between the two cases.”
In Indianapolis Union Ry. Co. v. Ott, 11 Ind. App. 564, 38 N. E. 842, 39 N. E. 529, decided six months after the Meador Case, a recovery by the servant for injuries sustained by the use of a defective lantern after the master’s promise to repair it, was sustained.
In Louisville Holel Co. v. Kaltenbrun, 26 Ky. Law Rep. 208, 80 S. W. 1163, there was involved a claim for damages arising from an injury occasioned by the use of a box, conceded to be a simple instrumentality, and the court was urged to adopt the limitation imposed by the New York court. In response to the contention that the servant should not be relieved of the burden of assumption of risk, even though he had complained and received the master’s promise to repair, the court said: “To this we cannot agree. The difference between a simple instrument and a complicated one vanishes when the servant fully understands that it is dangerous to further use it.”
The decision in Marsh v. Chickering is criticised by the author of the notes to Brouseau v. Kellogg S. & S. Co., in 27 L. R. A. (n. s.) 1053, and is disapproved by Labatt (4 Labatt on Master and Servant, sec. 1355), who says: “It is difficult to see any rational ground upon which the distinction thus indicated can be sustained * * * The conclusion arrived at by the New York court of appeals is possibly to be explained by the fact that its attention was not properly directed to the rationale of the ‘effect ascribed to a promise, as being essentially a stipulation by the master to accept temporarily the responsibility for any accident that may occur. (See secj 1348, subd. a, ante.) It seems not reasonable to suppose that, if due prominence had been given to this aspect of the relations of the parties, the learned judges who concurred in the decision in Marsh v. Chichering would have been more fully alive to the anomaly of the position to which that decision commits them. ’ ’
Under the doctrine announced by the New York court, the servant, whose employment requires the use of simple tools only, has no right to rely upon the master’s promise to repair; hence, after he discovers that his working tools are defective, he has no other alternative but to continue work and bear the burden of assumption of risk or quit the employment, even though it is necessary for what Carlyle calls the “altogether indispensable for daily bread.”
In our judgment there is not any reason for the limitation sought to be imposed upon the rule, and we decline to recognize it.
The judgment is reversed and the cause is remanded for trial.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Rankin, Galen and Stark concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This proceeding was instituted under the provisions of section 9872, Revised Codes, by filing with the district court an agreed statement of facts as follows: Plaintiff, an irrigation district organized under the laws of this state (Chap. 146, Laws of 1909), tendered to the defendant, county clerk and recorder of Broadwater county, certain papers for recording, which papers were in due form and were required to be recorded in that county, but defendant refused to record them unless paid in advance $104, the statutory fees which would be required of a private individual for like service; and in order to secure the papers to be recorded plaintiff paid the fees, but under protest. 'The trial court held that defendant was not entitled to demand any fees, and rendered and had entered a judgment in favor of the plaintiff, from which the defendant appealed.
. Section 4887, Revised Codes, and subsequent sections require every salaried county officer to collect the fees therein mentioned for the use of the county; but section 4893 provides: “No fees must be charged the state, or any county, or any subdivision thereof, or any public officer acting therefor * * * for official services rendered, and all such services must be performed without the payment of fees.” In State v. Story, 53 Mont. 573, 165 Pac. 748, this court held that the terms “fees” used in those sections “imports specific charges to be collected from private individuals for particular services.”
Chapter 146, Laws of 1909 (secs. 7166-7173, Rev. Codes of 1921), under which this plaintiff was organized, provides: “Every irrigation district so established hereunder is hereby declared to be a public corporation for the promotion of the public welfare.” (Sec. 7169, Rev. Codes.)
Section 5901 provides: “Corporations are either public or private. Public corporations are formed or organized for the government of a portion of the state; all other corporations are private. ’ ’
We need not stop to determine whether by its bare ipse dixit the legislature may create a public corporation out of a purely private enterprise which does not exercise any functions of government. For the purposes of this appeal it is sufficient to say that the existence of a public corporation does not depend upon the exercise of all of the functions of government within its prescribed limits. (Dean v. Davis, 51 Cal. 406.)
It may be true that in Oregon and Nevada an irrigation district does not perform any governmental function whatever (Directors v. Peterson, 64 Or. 46, 128 Pac. 837, 129 Pac. 123; In re Walker Irr. Dist., 44 Nev. 321, 195 Pac. 327); but that is not true here, for an irrigation district organized under the laws of this state does exercise some governmental functions; for example, it may levy taxes (see. 7232, Rev. Codes), which is the exercise of one of the highest prerogatives of sovereignty (People ex rel. Scott v. Pitt, 169 N. Y. 521, 58 L. R. A. 372, 62 N. E. 662).
We may accept without further comment the declaration of the legislature that an irrigation district is a public corporation, and the ultimate question for determination still remains: Is it a subdivision of the state within the meaning of section 4893, above, and entitled to have the services herein de manded, rendered by tbe county clerk without the payment of any fees?
Independently of these or like statutory definitions, it has been heldi generally that whether a public corporation is a subdivision of the state depends upon the connection in which the phrase “subdivision of the state” is used. A school district is generally regarded as a subdivision of the state (Skelly v. School District, 103 Cal. 659, 37 Pac. 643), and this rule is recognized by the supreme court of Missouri (Wilson v. Drainage and Levee District, 237 Mo. 39, 139 S. W. 136); but it was held that a school district is not a subdivision of the state within the meaning of that phrase as used in the Constitution defining the jurisdiction of the supreme court (School District v. Boyle, 182 Mo. 347, 81 Pac. 409; State ex rel. School District v. School District, 238 Mo. 407, 141 S. W. 1111). The same court held that a drainage district is a subdivision of the state for certain purposes (Morrison v. Morey, 146 Mo. 543, 48 S. W. 629; Squaw Creek Drainage Dist. v. Turney, 235 Mo. 80, 138 S. W. 12); and likewise a levee district (State ex rel. Stotts v. Wall, 153 Mo. 216, 54 S. W. 465; Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 94 Am. St. Rep. 727, 60 L. R. A. 190, 70 S. W. 721). But it is also held that neither comes within the meaning of the phrase as employed in section 12, Article VI, of the Missouri Constitution. (Wilson v. Drainage and Levee District, above.) Likewise the Texas court held that a commissioner’s precinct is a subdivision of the state within the meaning of that phrase as- used in the local option law (Cofield v. Briton, 50 Tex. Civ. App. 208, 109 S. W. 493), but that an election district is not (Efird v. State, 46 Tex. Cr. App. 582, 80 S. W. 529); and neither is a school district (Ex parte Haney, 51 Tex. Cr. App. 634, 103 S. W. 1155). In Lydecker v. Drainage & Water Commissioners of Englewood, 41 N. J. L. 154, it was held that a drainage district is not a subdivision of the state within the meaning of that provision in the Constitution fixing the limit of taxing districts. In New York and Nevada it is held that a political subdivision of the state within the meaning of the election laws is a district of the state within which any public officer is elected. (In re Richards, 179 App. Div. 823, 167 N. Y. Supp. 152; In re Walker Irr. Dist., above.) In Kinne v. Burgess, 24 Ariz. 463, 211 Pac. 573, it was held that an irrigation district created under Chapter 49 of Laws of Arizona 1915 is a political subdivision of the state. And in Elmore v. Drainage Commrs., 135 Ill. 269, 25 Am. St. Rep. 363, 25 N. E. 1010, it was held that a drainage district is a public, involuntary quasi corporation, to be classed with counties, townships, school districts, road districts, etc. The Internal Revenue Bureau held that the interest on irrigation district bonds is not subject to federal income tax, solely upon the theory that an irrigation district is a subdivision of the state. (Cumulative Bulletin No. 2, 93.) And so references might be multiplied without deriving any material assistance in the solution of the problem before us.
In addition to the legislative declaration that an irrigation district organized under the laws of this state is a public corporation, and the authority conferred upon it to levy taxes, the following circumstances reflect upon its character: It is authorized to issue bonds (sec. 7210-, Rev. Codes), but when the bonds are sold the proceeds are paid to the county treasurer (see. 7215, as amended by see. 10, Chap. 157, Laws of 1923), who is made the treasurer of every irrigation district organized in his county (see. 7239). The district may not spend the proceeds from the sale of its bonds without the approval of the commission (sec. 7220, as amended by sec. 11, Chap. 157, Laws of 1923'), composed of the attorney general, state engineer and state examiner (sec. 7223). The bonds, when properly certified, constitute legal investments for all trust funds, funds of banks, insurance companies and trust companies, and for school funds. (See. 7225.) While the district levies the tax to pay the interest on its bonds and to create a sinking fund, the county clerk is required to extend these taxes on the assessment-roll, and the county treasurer is required to collect the taxes at the same time and in the same manner as county and state taxes are collected (sec. 7240), and these officers are compelled to perform. these services for the district without additional compensation. Section 7209, Revised Codes, provides: “The bonds issued under the provisions of this Act, rights of way, ditches, flumes, pipe-lines, dams, water rights, reservoirs, and other property of like character, belonging to any irrigation district, shall not be taxed for state, county, or municipal purposes.” Whether the legislature had the authority to declare such an exemption may be questioned, but no one can be in doubt that it was dealing with an irrigation district as a part of the state itself rather than as an enterprise fostered by the state.
To summarize: An irrigation district is a public corporation organized for the government of a portion of the state and for the promotion of the public welfare. It exercises essential governmental functions, and one of its principal officers is the county treasurer. It may not expend its funds without the approval of public officers, and the interest on its bonds is not subject to the federal income tax laws. So far as it was possible to do so the legislature has emphasized its public character and expressed an intention that it shall be relieved of the ordinary burdens which are imposed upon private enterprises. From these considerations we think it is fairly dedueible that it was the purpose of the legislature that an irrigation district should be deemed a, subdivision of the state within the meaning of section 4893, Revised Codes.
The judgment is affirmed.
Affirmed.
Mr. Chief .Justice Callaway and Associate Justices Galen and Stark concur.
Mr. Justice Cooper, being absent, did not hear the argument, and takes no part in the foregoing decision.
|
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PEE CUEIAM.
On stipulation of counsel, the appeal herein is dismissed.
|
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] |
PER CURIAM.
On motion of respondent to dismiss the appeal herein for failure of appellant to file the record within the time prescribed by law, the appeal is dismissed.
|
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] |
PER CURIAM.
Relaitor’s application for a writ of supervisory control herein, is denied.
|
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] |
PER CURIAM;
On motion of the attorney general to dismiss the appeal herein [on the ground that appellant is a fugitive from justice] is sustained and the appeal ordered dismissed.
|
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MR. JUSTICE RANKIN
delivered the opinion of the court.
Elizabeth Louise Miller was murdered on or about the third day of July, 1921. She left surviving her a mother, three sisters and two brothers. On August 16, 1922, there was filed in the district court an instrument dated January 29, 1921, purporting to be the last will, holographic in form, of Elizabeth Louise Miller. On August 24, 1922, a petition was filed in which the instrument was offered for probate by the contestee, Bertha Josephine Houston, a sister of deceased. Prior to the hearing on the petition the right to receive the purported will was contested by A. E. Farley, Esq., as attorney for two of deceased’s sisters and her two brothers (the mother having died in the meantime), upon the ground that the instrument was a forgery. The cause was tried to the court sitting with a jury, and resulted in a verdict in favor of the contestants and a finding that the will was not entirely written, dated, and signed by Elizabeth Louise Miller. Before judgment was rendered, an affidavit on' behalf of contestant was filed, disqualifying Joseph C. Smith, one of the judges of the district court before whom the cause was tried, who, notwithstanding the affidavit, rendered judgment rejecting the purported will and refusing to admit it to probate. Thereafter a motion was made for a new trial, which was denied. It is from the judgment that this appeal is prosecuted.
As ground for reversal, contestee insists that the district judge, having been disqualified after the verdict, was without authority to render judgment. It becomes necessary, then, to determine whether section 8868, Revised Codes of 1921, which provides, “Such affidavit * * * shall be filed with the clerk of the district court * * * at any time before the day appointed or fixed for the hearing or trial of any such action, motion, or proceeding,” permits the filing of a disqualifying affidavit after verdict but before judgment.
This court decided in State ex rel. Carleton v. District Court, 33 Mont. 138, 8 Ann. Cas. 752, 82 Pac. 789, that an affidavit imputing bias and prejudice may be filed after a trial has been had and while a motion for a new trial is pending, at any time before the date set for the hearing of such motion. In. so far as that decision permits a change of judge, when application is made under section 8868 prior to the date set for a hearing upon a motion for new trial upon the ground that it is pro hoc vice a proceeding independent of the trial of the cause on the merits, we have no particular fault to find with it. The rule there announced may not, however, be extended to permit the filing of a disqualifying affidavit after verdict and prior to the entry of judgment. The rendition of judgment is too much a part of the trial of the action on the merits to be characterized as a separate, independent proceeding in the sense that the term is used in the foregoing section. The trial court committed no error in disregarding the affidavit and ren dering judgment.
The contestee urges the insufficiency of contestants’ complaint upon the grounds, first, that it fails to show the con testants have such an interest in the estate of Elizabeth Louise Miller as to entitle them to contest the probate of the will; and, second, that it fails to allege authority on the part of A. E. Farley, an attorney at law, to represent contestants.
Without determining whether the complaint, standing alone, sufficiently alleges that the contestants are persons who, but for the will, would succeed in some degree to decedent’s estate, it is clear that the admission in the answer of the contestee “that these contestants are brothers and sisters of said decedent, and owing to the death of the mother are entitled to share equally in the distribution of the estate of the deceased, if the deceased died intestate,’’ remedies any possible infirmity of the character suggested. It is the rule at common law, and it has long been settled in this jurisdiction, that where neces-
sary allegations are omitted from the complaint, but supplied by defendant’s answer, the defect is cured. (1 Chitty on Pleading, 703; Hershfield & Bro. v. Aiken, 3 Mont. 442; Murphy v. Phelps, 12 Mont. 531, 31 Pac. 64; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713; Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112; Crowder v. McDonnell, 21 Mont. 367, 54 Pac. 43 ; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201; Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Mantle v. White, 47 Mont. 234, 132 Pac. 22; Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189; Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601; Kummrow v. Bank of Fergus County, 57 Mont. 390, 188 Pac. 649; Hurley v. Great Falls Baseball Assn., 59 Mont. 21, 195 Pac. 559; Sevanin v. Chicago, M. & St. P. Ry. Co., 62 Mont. 546, 205 Pac. 825; Anderson v. Wirkman, 67 Mont. 176, 215 Pac. 224; 1 Sutherland on Code Pleading, Practice and Forms, see. 361; Bliss on Code Pleading, 3d ed., see. 437; Pomeroy on Code Remedies, 579; 31 Cyc. 714.)
The contention that the complaint must allege that Mr. Farley was the attorney for the contestants is without merit. Heirs at law may contest a will through attorneys appointed by them. (Sec. 10029, Rev. Codes 1921.) And it is presumed without allegation or proof that an attorney at law who represents a client does so with his consent and by virtue of his retainer. (Pullen v. City of Butte, 45 Mont. 46, 121 Pac. 878; Davenport v. Davenport, 69 Mont. 405, 222 Pac. 422; Strand Improvement Co. v. City of Long Beach, 173 Cal. 765, 161 Pac. 975; Drew v. Burley (D. C.), 287 Fed. 916; Gila Valley El., Gas & Water Co. v. Arizona Trust & Sav. Bank, 25 Ariz. 177, 215 Pac. 159; Jordan v. Evans, 99 Neb. 666, 157 N. W. 620; Miller v. Continental Assur. Co., 233 Mo. 91, Ann. Cas. 1912C, 102, 134 S. W.) 1003; Keithley v. County of Clark, 206 Ill. App. 500.) “The universal rule is that, where an attorney appears and undertakes to act for another in a capacity and for a purpose within the scope of the ordinary powers of a duly licensed practitioner, his authority so to act will be presumed.” (1 Thornton on Attorneys, sec. 230.)
If the eontestee desired to question the right of Mr. Farley to represent contestants, she should have applied to the trial court at the earliest opportunity for an order requiring him to produce and prove the authority under which he appeared, in accordance with the provisions of section 8994 of the Revised Codes of 1921. His authority to represent the contestants not having been challenged in the district court, the right to attack it later was waived. (Missoula Belt Line Ry. Co. v. Smith, 58 Mont. 432, 442, 193 Pac. 529; 6 C. J. 631; Smith v. Smith, 145 Cal. 615, 79 Pac. 275; Brown v. Arnold, 131 Fed. 723, 67 C. C. A. 125.)
Error is predicated upon the ruling of the trial court in permitting M. F. McDonald, a witness for contestants, to testify, over objection, with reference to the signature of the purported will, as follows: “ Q. Did you compare that with any other papers you knew to be genuine? A. Yes. Q. I will ask you to state your opinion based upon your comparison as to whether or not, in your opinion, that is the handwriting of Mrs. Louise Miller? A. It is not.” Contestee also assigns as error the court’s ruling in permitting other witnesses, over objection, to give their opinion as to the genuineness of the handwriting of the purported will, based upon a comparison with other writings in evidence admitted to be genuine. These assignments of error involve the same legal principles and will be treated together.
Section 10592, Revised Codes of 1921, provides as follows: “Evidence respecting the handwriting may also be given by comparison, made by the witness or jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.” This section was adopted from the California statutes after the supreme court of that state had construed the term “witness” to mean expert witness. (Goldstein v. Black, 50 Cal. 462; Spottiswood v. Weir, 80 Cal. 448, 22 Pac. 289.) It is to be presumed, under the rule consistently adhered to by this court, that we adopted the construction thus placed upon it as a part of the law itself. (Territory v. Stears, 2 Mont. 324; Lindley v. Davis, 6 Mont. 453, 13 Pac. 118; First National Bank of Butte v. Bell etc. Min. Co., 8 Mont. 32, 19 Pac. 403; Price v. Lush, 10 Mont. 61, 9 L. R. A. 467, 24 Pac. 749; Stackpole v. Hallahan, 16 Mont. 40, 28 L. R. A. 502, 40 Pac. 80; Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714; Largey v. Chapman, 18 Mont. 563, 46 Pac. 808; Stadler v. First National Bank, 22 Mont. 190, 74 Am. St. Rep. 582, 56 Pac. 111; Butte & Boston Con. Min. Co. v. Montana Ore Pur. Co., 25 Mont. 41, 63 Pac. 825; Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136; Miller v. Miller, 47 Mont. 150, 131 Pac. 23; Moreland v. Monarch Min. Co., 55 Mont. 419, 178 Pac. 175; State ex rel. Rankin v. State Board of Examiners, 59 Mont. 557, 197 Pac. 988; Mares v. Mares, 60 Mont. 36, 199 Pac. 267; State ex rel. Murray v. Walker, 64 Mont. 226, 210 Pac. 90; Winnett Pacific Oil Co. v. Wilson, 71 Mont. 250, 229 Pac. 850.) A nonexpei't witness may give an opinion as to the handwriting of a person whom he has seen write, or when he has seen writings purporting to be his, upon which he has acted or been charged, and who has thus acquired a knowl edge of Ms handwriting (sec. 10591, Rev. Codes 1921), or he may refresh his memory by examining other writings known or admitted to be genuine (22 C. J. 630), but he cannot give his opinion based upon a comparison of writings in regard to which the jury are equally capable of forming an opinion from the writings in evidence (Spottiswood v. Weir, supra; Johnston v. Bee, 84 W. Va. 532, 7 A. L. R. 252, 100 S. E. 486; Griffin v. State, 90 Ala. 596, 8 South. 670; Griffin v. Working Women’s Home Assn., 151 Ala. 597, 44 South. 605; Mixer v. Bennett, 70 Iowa, 329, 30 N. W. 587). It was reversible error for the trial court to admit'the evidence.
It is insisted that the trial court erred in permitting the witness George Allen to answer the following question over the objection of the contestes: “Q. I will ask you, from your acquaintance with Mrs. Louise Miller, your knowledge of her association and dealings with different banks in the state of Montana, her dealings with yourself as an attorney, and your knowledge as to the ordinary form of a holographic will, from your reading of the different law books, whether or not it is probable or improbable for a woman in the condition that Mrs. Louise Miller was in, to execute such an instrument?” The witness answered that in his opinion it was improbable that deceased “prepared and wrote” the purported will. 'Contention is made that the subject is not one calling for expert testimony, and with this we agree. “The theory upon which expert testimony is held competent is that there are persons whose knowledge of a science, art or trade being superior to that of the mass of mankind, qualifies them to express an opinion upon any matter pertaining thereto.” (De Sandro v. Missoula Light etc. Co., 52 Mont. 333, 157 Pac. 641.) When, however, it can be said as a matter of law that the jurors are equally capable of forming an opinion or can draw, or can readily be directed how to draw, a reasonable inference, then the matter is not the subject of expert testimony. (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42; Copenhaver v. Northern Pac. By. Co., 42 Mont. 453, 113 Pac. 467; Westlake v. Keating Gold Min. Co., 48 Mont. 120, 136 Pac. 38.) In other words, when the conclusions to 'be drawn from the facts stated are within the range of ordinary training, intelligence and common observation, expert testimony is not admissible. (Kelley v. John R. Daily Co., 56 Mont. 63, 181 Pac. 326; State v. Keeland, 39 Mont. 506, 104 Pac. 513; 22 C. J. 642.) “‘The necessity for opinion evidence only exists where the facts in controversy are incapable of being detailed and described so as to give the jury an intelligible understanding concerning them; but when the facts are such as can be detailed or described, and the jury are able to understand and draw a correct conclusion from them without such opinion evidence, the necessity for it does not exist.’ ” (Cummings v. Reins Copper Co., 40 Mont. 599, 621, 107 Pac. 904.) Manifestly this testimony elicited from George Allen should have been excluded under the rules governing the admission of opinion evidence, and it was prejudicial error to receive it.
I Inasmuch as a new trial must be granted, it is proper to consider contestants’ contention that the court erred in excluding their exhibits 5, 6 and 7, each of which is a letter written by deceased, containing declarations as to her feelings and attitude toward the contestes. Exhibit 5 is dated February 2, 1921, which is four days after the date of the purported will. Exhibits 6 and 7 are undated but disclose upon examination that they are in no sense a part of the res gestae. .In our opinion these exhibits were properly excluded. The 'declarations of the deceased in all of the exhibits do not come ¡within any exception to the law excluding hearsay evidence upon the trial of an action. They are not declarations against interest. The will could not take effect until after her ¡death, and therefore the declarations had no effect upon her ■interest. (In re Colbert’s Estate, 31 Mont. 461, 107 Am. St. Rep. 439, 3 Ann. Cas. 952, 78 Pac. 971, 80 Pac. 248.) "We 'think the correct rule of law applicable to the admission of ^declarations of this character is stated concisely by the supreme court of the United States in the case of Throckmorton v. Holt, 180 U. S. 552, 45 L. Ed. 663, 21 Sup. Ct. Rep. 474, speaking through Mr. Justice Peckham: “When they are not a part of the res gestae, declarations of this nature are excluded because they are unsworn, being hearsay only, and where they are claimed to be admissible on the ground that they are said to indicate the condition of mind of the deceased with regard to his affections, they are still unsworn declarations, and they cannot be admitted if other unsworn declarations are excluded. In other words, there is no ground for an exception in favor of the admissibility of declarations of a deceased person as to the state of his affections, when the mental or testamentary capacity of the deceased is not in issue.” (In re Colbert’s Estate, supra.)
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Associate Justices Holloway, Galen and Stark concur.
Mr. Chibe Justice Callaway, being disqualified, did not hear the argument and takes no part in the foregoing decision.
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] |
ORDER
PER CURIAM:
Following adversary hearing we decline to accept jurisdiction herein at this time, the application of relator for an extraordinary writ is denied, this proceeding is dismissed, and this cause remanded to the district court for further proceedings, all without prejudice.
|
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] |
ORDER
PER CURIAM:
The petition of Franklin Wayne Shammel for review of the sentence herein is denied for the reason that said sentence has already been reviewed by the Sentence Review Division, an arm of this Court.
|
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MR. JUSTICE HASWELL
delivered the opinion of the court.
Plaintiff Mark M. Moore, as buyer, brought this action against defendants Swansons, as sellers, to rescind a contract for deed or, in the alternative, to recover money damages. The district court awarded damages to plaintiff, and defendants appeal.
On July 18, 1973, plaintiff and defendants executed a contract for deed whereby defendants agreed to convey to plaintiff the Alpine Village Motel near Red Lodge, Montana and the property upon which the motel was situated, consisting of approximately twelve acres. The purchase price was $98,000, of which $73,000 was payable on terms over ten years.
During negotiations preceding the formal contract, the plaintiff made specific inquiry of defendants concerning water rights available to the property. Defendant Howard Swanson told plaintiff that defendants owned all of the spring rights on the property and that the motel and residence were connected to Red Lodge city water. The representations were embodied in the contract by reciting therein the promise that the going business known as the Alpine Village Motel, together with all its “contracts and engagements, benefits and advantages,” was assured to the plaintiff-buyer. The contract further warranted fee simple title in the described realty and in “all water rights used in connection therewith.”
The evidence adduced at trial established the following facts concerning these “water rights” in the property. The spring rights on the property had been reserved to adjoining land by an instrument executed in 1940. When the defendants purchased the property in 1952, their own deed was subject to this reservation of spring waters to the adjoining owners. However, defendants did not disclose this fact to the plaintiff either in oral negotiations or in the contract for deed. In addition, plaintiff was never informed of the fact that the city water connected to the property was provided by a private line approximately one thousand feet long. This line ran through and across property owned by the Northern Pacific Railway. The Northern Pacific had given two permits for this line which were absolutely can-celable upon 90 days’ notice. The permits required that the entire line be maintained and repaired at the user’s sole expense. The Northern Pacific permits were not a matter of public record and they were in the defendants’ private possession. Their existence was not made known to plaintiff until after he had signed the contract and made payments. Further, the permits were not assignable by defendants without the Northern Pacific’s written consent; defendants had never obtained such consent.
The contract herein entitled plaintiff to an abstract of title which “shall show a good record fee simple title in the Sellers.” If the abstract disclosed defects not corrected by sellers within a reasonable time, buyer was then given the right to cancel the contract. After plaintiff received the abstract, he had it examined by an attorney. The examination disclosed the reservation of spring rights to plaintiff’s neighbors. Plaintiff gave defendants’ attorney written notification that he did not accept the- abstract, as was his right under the contract. Defendants never took steps to correct these defects.
Another aspect of the transaction concerns the Alpine Village Motel’s Triple A rating with the American Automobile Association. During negotiations, defendants specifically told plaintiff that the motel fully complied with Triple A standards. A covenant of the contract required the plaintiff to maintain the motel’s membership with the American Automobile Association during the term of the contract. Nevertheless, before the plaintiff and his wife took possession of the premises in accordance with the contract, defendants received a written deficiency notification from the Association that certain improvements were required; and defendants in no way communicated this information to the plaintiff or his wife. Because of the deficiency notice, plaintiff expended $1,720.13 for the items necessary to retain the motel’s Triple A rating.
Regarding both the water rights from the city line and the springs, and the Triple A standards, the plaintiff testified that he would not have purchased the motel property had the defendants apprised him of the facts as they subsequently developed and as we have outlined above.
When it became apparent to plaintiff that the defendants were not going to remedy the title defects or make the necessary improvements to the property, plaintiff filed suit for rescission based upon fraud and failure of consideration, or alternatively, for damages for the reasonable costs of providing a new water supply and for making necessary improvements to maintain Triple A standards in the amount of $10,000. Following a non-jury trial before District Judge C. B. Sande, the court entered findings of fact and conclusions of law denying rescission but awarding plaintiff $8,000 in damages plus a refund of interest. The damages were to be deducted from the total contract price rather than be paid upon judgment, making the contract price $90,000 instead of $98,000. Defendants appeal from the district court’s denial of their motion for a new trial, and present three issues for review:
1. Did the district court err in finding that the city water was unavailable to plaintiff as a matter of right?
2. Did the district court err in concluding that city water was a water right under the contract for deed?
3. Was there substantial evidence to support the district court’s award of damages to plaintiff?
As to the first issue, the bare facts of the record show that the city water line connecting with the motel property existed for the benefit of the property owners only at the sufferance of the Northern Pacific Railway. The Northern Pacific permit to use the water line was cancelable by'it upon ninety days notice. The fact it had not yet been cancelled at the time of trial is immaterial. There was not a scintilla of evidence that the motel property was within the boundaries of the Red Lodge municipal water service area; so the district court could not indulge in the presumption that the city had a “duty” to furnish.water to the property under the rule of Polson v. Public Service Commission, 155 Mont. 464, 473 P.2d 508. Therefore, the city water was not available as a matter of right and the district court did not err in so holding.
In their second issue, defendants contend alternatively that the city water connection was not a “water right” as that term was used in the contract for deed. This issue turns on the meaning of the words used in the contractual description of the real property conveyed: “TOGETHER with all water rights used in connection therewith.” Defendants suggest that “water rights” is a term of art referring specifically to property rights regulated by the state under Title 89, R.C.M.1947. Thus, they say, the city water was not such a specific property right and was not included in the contract. However, such a strict interpretation of the language is untenable under the facts of this case. Plaintiff is an inexperienced buyer of real estate with a ninth grade education. Defendants and plaintiff specifically discussed the use of the city water on the premises in their negotiations and plaintiff communicated to defendants his concern about all water usable thereon. We are therefore guided by section 13-710, R.C.M.1947, concerning interpretation of contracts:
“The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.”
The district court was correct in holding that:
“* * * for purposes of the contract for deed which forms the subject of this action, Red Lodge city water shall be deemed a water right used in connection with the lands sold by defendants to plaintiff.”
The final issue raised by defendants is whether the evidence substantiates the award of damages to plaintiff. As shown by the fact that the spring waters on the motel property were owned by adjoining landowners rather than by the owner of the motel property, and by our discussion of the first issue regarding unavailability of city water as a matter of right, it is plain that plaintiff did not receive the water rights for which he contracted. Instead of awarding rescission, the district court determined the reasonable cost of drilling wells and replacing the water system so that plaintiff would not be dependent on his neighbors and the city, and the actual cost of remedying defects in the motel pursuant to the deficiency notice.
With respect to the cost of wells and water, the only evidence at trial was a bid by a local contractor for the construe tion of a new water system. The estimate was $7,380.70, and the district court found this to be the reasonable cost of constructing an alternative water supply for the motel property. Defendants do not contest the reasonableness of the bid per se, but contend that the proposed construction is unnecessarily large for supplying present water needs to the motel and to plaintiff’s residence. However, there is no evidence that the proposed water system would produce an amount of water disproportionately larger than the amount of water which plaintiff contracted to purchase as part of the property from the defendants. Thus the cost of water supply replacement is supported by substantial, uncontradicted evidence and we will not disturb the district court’s finding on appeal.
Defendants also claim that the damages awarded for replacement of water supply are speculative as based upon a possibility of future injury. This argument, however, depends upon the erroneous proposition that plaintiff has suffered no legal harm. To the contrary, plaintiff is presently entitled to the benefit of his bargain, that is, the benefit of the adequate water supply which defendants promised to deliver. As heretofore demonstrated, plaintiff is not entitled to city water as a matter of right, nor does he have rights in spring waters reserved to his neighbors. This present injury is compensable as found by the district court.
Finally, the district court did not err in awarding plaintiff his expenses incurred in improving the motel to retain its Triple A rating. It is undisputed that the repair expenses were necessary to meet Triple A standards, and that plaintiff expended the amount awarded. Thus, substantial evidence supports the findings and conclusions of the district court.
The “as is” disclaimer clause regarding condition of premises does not bar plaintiff’s recovery of repair damages. Defendants represented to plaintiff that the motel was in all respects in compliance with Triple A standards, when in fact it was not. The district court correctly found this representation to be material to the transaction and a matter contributing to a partial failure of consideration on defendants’ part. Therefore, damages are appropriate to compensate the plaintiff. Compare: Fontaine v. Lyng, 61 Mont. 590, 202 P. 1112.
Finding no error, we affirm the judgment of the district court.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES JOHN C. HARRISON and DALY, and the HON. LEROY L. McKINNON, District Judge, sitting for Mr. Justice Castles, concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
A statement of the facts of this case will be found in the opinion upon the former appeal. (Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 Pac. 416.) Upon the return of the cause to the district court, plaintiff amended his complaint, and the issues being joined, a trial was had, which resulted in a verdict and judgment in his favor for $25,000. Defendants have appealed from the judgment and from an order denying them a new trial.
1. The complaint as originally drawn charged negligence in the operation of the car which resulted in the injury, particularly in that Le Sage, the motorman at the time, failed to turn off the electric current, apply the brakes, and stop the ear before striking the child. Upon the former appeal we held that the evidence failed to prove the specific act of negligence thus pleaded. The amendment made to the complaint consists in substituting for the allegation of the specific aet of negligence in failing to apply the brakes, etc., an allegation that Le Sage failed to keep any vigilant or proper lookout, whereby he might have seen the child and avoided the injury. It is now insisted that the so-called amendment was in fact the substitution of a different cause of action.
There cannot be any question as to the general rule of law applicable in such cases. In Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327, this court said: “Under the statute, to allow amendments is the rule; to deny them is the exception. The rule observed by this court has always been to allow .them with great liberality, where they do not change the nature of the action, or mislead- the adversary to his prejudice; its application going even to the extent of permitting them after verdict and judgment. ’ ’ The only difficulty arises in applying the rule to the facts of the particular case. “To constitute a cause of action for a tort, then, the plaintiff’s right must have been infringed by the wrongful act of the defendant, with the result that plaintiff suffered damages.” (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960.) It is alleged in the original and also in the amended complaints that the negligence of the defendants in operating the car caused the injury. May the plaintiff, then, substitute as the charging part of his complaint one specific act of negligence for another, without introducing a different cause of action ?
In Kerr v. Grand Forks, 15 N. D. 294, 107 N. W. 197, the original complaint charged that the injury resulted from negligence of the city in permitting a sidewalk to be constructed in a dangerous manner. The amendment charged that the negligence consisted in permitting the sidewalk to remain in a dangerous condition after the city had notice. It was held that this amendment was properly allowed.
In Peery v. Quincy etc. R. Co., 122 Mo. App. 177, 99 S. W. 14, the original complaint charged that the negligence consisted in- failing to keep a fence in repair. The amendment charged negligence in maintaining a defective gate. The allowance of this amendment was held proper.
In Chapman v. Nobleboro, 76 Me. 427, the pleading is not set forth, but in disposing of the objection to the amendment the Court said: “The first of the amendments is, not a change in, but an addition to, the description of the alleged defect in the way, and the second relates to the manner in which the accident happened, leaving the accident itself and the result of it the same. There is therefore no change in the cause of action, either in the alleged defect or the result of it, and the allowance of the amendments was within the discretion of the presiding justice.”
In Davis v. Hill, 41 N. H. 329, the original declaration charged negligence in permitting a roadway to be uneven and encumbered with snow and ice, by reason whereof the injury resulted. The amendment charged negligence in failing to maintain a railing or barrier along the road, by reason of which the injury resulted. It was held that this amendment was properly allowed.
In Montgomery Traction Co. v. Fitzpatrick, 149 Ala. 511, 43 South. 136, 9 L. R. A., n. s., 851, the original complaint charged that plaintiff was wrongfully ejected from a street-ear on the Court street line by the conductor of the car. The amendment charged that the conductor on the Electric Park line negligently tore and mutilated plaintiff’s transfer ticket, by reason whereof he was ejected by the conductor of the Court street line. It was held that this amendment was proper.
In Salmon v. City Electric Ry. Co., 124 Ga. 1056, 53 S. E. 575, the original complaint charged negligence on the part of the railway company in placing certain poles too near the track. The amendment offered charged negligence on the part of the conductor in failing to warn the plaintiff of the proximity of the poles to the track. It was held error to refuse the amendment.
In Smith v. Bogenschultz, 14 Ky. Law Rep. 305, 19 S. W. 667, 20 S. W. 390, the original complaint charged that plaintiff’s injury was caused by the jostling of a ladle containing molten iron, occasioned by the narrowness of the passageway through which the ladle had to be carried. The amendment charged that the injury resulted from the negligence of defendant in furnishing a defective ladle. It was held error to refuse the amendment.
In City of Evanston v. Richards, 224 Ill. 444, 79 N. E. 673, the original declaration pleaded negligence on the part of the city in permitting certain boards in a sidewalk to become loose, whereby plaintiff tripped and fell. The amendment charged negligence in permitting the sidewalk to remain in an unsafe condition, by reason whereof plaintiff stepped upon and broke through a defective board, thereby sustaining the injury. It was held proper to allow the amendment, and in the course of the opinion the court said: “In the case at bar the act or wrong charged was the disregard by the appellant of its duty to keep its sidewalk in safe repair, and in permitting it to be and remain in bad and unsafe repair and condition. In the original declaration the pleader stated the manner in which the condition complained of resulted in the injury to appellee. Upon the trial the proof tended to show the condition complained of was as alleged in the declaration, but that the manner of appellee’s injury was not as alleged, but in the manner stated in the amendment. The act or wrong of appellant which resulted in the injury was the same in the original declaration as charged by the amended declaration; the mode or manner in which it resulted in the injury was stated differently. ’ ’
The theory of all these eases is that, so long as the plaintiff adheres to the injury originally declared upon, he may amend his pleading -by alleging that the injury was caused in a different manner, without infringing the general rule against introducing a different cause of action. (1 Ency. of PI. & Pr. 564.)
In More v. Burger, 15 N. D. 345, 107 N. W. 200, it is well said: “The test generally adopted to determine whether an amendment is permissible is whether a recovery upon the cause of action set up by the amendment would be a bar to a suit upon the other.”
The same injury is described in the original and in the amended complaint in this instance, and relief for that injury is sought in each pleading. The measure of damages is the same in each instance, and that a judgment recovered upon either pleading would bar recovery upon the other admits of no doubt. "We approve the action of the district court in allowing the amendment, as well within the rule heretofore announced by this court.
2. It is insisted that the complaint does not state a cause of action against the railway company. It must be admitted at once that the liability of the railway company for the negligent act of Le Sage is grounded in the rule respondeat superior, and in order for that rule to apply the person sought to be charged must stand in the relation of superior to the person doing the wrongful act. (1 Thompson’s Commentaries on the Law of Negligence, see. 578; King v. New York Central & H. R. R. Co., 66 N. Y. 181, 23 Am. Rep. 37; Hexamer v. Webb, 101 N. Y. 377, 54 Am. Rep. 703, 4 N. E. 755.) It is urged that the complaint in this instance does not allege that Le Sage was a servant of the railway company; and while the allegation in express terms cannot be found in the amended complaint, and its absence is scarcely excusable, still, if there are sufficient facts alleged from which such relationship may fairly be inferred, we will not feel justified in reversing the judgment.
The complaint alleges that at the time of the injury the defendant railway company was the owner of, and operating, street-cars on. West Park street in Butte, for the purpose of transporting passengers from point to point in the city; that at such time and place Le Sage was in charge of one of said cars, in the capacity of conductor; that at such time and place the car so in charge of Le Sage was proceeding along West Park street between Columbia and Crystal streets; “that the defendant Le Sage was driving said car as motorman, and not acting in his usual and regular capacity as conductor on said car, doing so with the knowledge and consent of the defendant corporation.” In each of the separate answers filed by the defendants, these specific allegations are admitted. In attempting to charge the relationship of master and servant, it must be conceded that it is not necessary to plead any facts other than those necessary to be proven, in order to establish such relationship when in issue.
In 1 Shearman & Redfield on the Law of Negligence, section 158, it is said: “When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car, or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant’s servant.”
In 1 Thompson’s Commentaries on the Law of Negligence, section 580, the same rule is announced as follows: “So it is not necessary to prove an express contract of employment in order to establish the relation of master and servant, but the relation may be implied from circumstances, as where the person committing the wrong is at the time in the actual conduct of the business of another with his seeming consent, in which case that, other will be responsible for the wrong done by the former within the scope of the apparent employment, on the ground that he has induced the belief that such person is his servant, and has led another to act upon that belief to his injury.” To the same effect are McCoun v. New York Central & H. R. R. Co., 66 Barb. (N. Y.) 338; Growcock v. Hall, 82 Ind. 202; Norris v. Kohler, 41 N. Y. 42. Even though this complaint may not be a model pleading, we think it fairly appears from it that Le Sage was the servant of the railway company at the time of the injury, and that the rule of respondeat superior is properly invoked.
3. It is insisted, also, that the complaint fails to state facts showing a breach of duty on the part of defendants, and also that the negligence alleged was a proximate cause of the injury. The complaint alleges, and the answers admit, that the car was being operated in a public and much-used street in the city of Butte. From this fact it follows that the defendants were under the obligation or duty to keep a vigilant lookout for people who might be rightfully using the street. The general rule, with the authorities supporting it, is found stated in 36 Cyc. 1520, as follows: “It is the duty of the driver or motorman of a street-car to exercise reasonable and ordinary care to discover persons using the street on or near the track, and liable to be injured by his ear, in time to avoid injuring them, and if he fails to discover a person on or near the track, when by the exercise of ordinary care he could have done so in time to stop the car or otherwise avoid the injury, it is negligence for which the company is liable.”
The complaint alleges that Le Sage, the motorman, at the time failed to keep a vigilant or proper lookout, whereby he might have seen the child before it came into a place of danger. We think the complaint contains a sufficient statement of the duty and breach.
The only specific act of negligence charged is in failing to keep a proper lookout; and the complaint then proceeds: ‘ ‘ That by reason of the negligence of said defendants he [plaintiff] was injured.” This is a sufficient showing of the causal connection between the alleged act of negligence and the injury. (Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 129 Am. St. Rep. 659, 100 Pac. 971; see, also, same case in 16 Ann. Cas. 1189, and note; Reino v. Montana Min. Land Dev. Co., 38 Mont. 291, 99 Pac. 853.)
4. Without reviewing the evidence at length, we think it sufficient to go to the jury upon the question of Le Sage’s negligence in failing to keep a proper lookout, and that a verdict was justified if the plaintiff’s evidence was treated as true, as it must have been. We cannot agree with counsel for appellants that the evidence is subject to but one construction, viz., that the child appeared on the track under such circumstances as to make its injury unavoidable. There is a sharp conflict in the evidence as to whether a wagon passed the car immediately before the injury happened or whether there was a dust storm which might have interfered with Le Sage in attempting to keep a lookout; and under these circumstances it was proper to submit to the jury the question whether or not the injury was or was not unavoidable. (Harrington v. Butte etc. Ry. Co., 39 Mont. 299, 102 Pac. 330.)
5. It is insisted that the verdict returned in this instance is grossly excessive. It has been well said: “To ascertain what is a fair and just compensation for a personal injury is a judicial problem of difficult, if not impossible, solution.” In the note to Cleveland etc. R. Co. v. Hadley (170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A., n. s., 527), as reported in 16 Ann. Cas. 1, there is a most complete collation of cases involving personal injuries. The cases are carefully analyzed and classified according to the character of injury and the action taken by the appellate court. A review of those cases involving an injury of the character suffered in this instance discloses that, except in New York and Texas, in every instance where the verdict exceeded $15,000 it has been disapproved, and that in nearly every instance the amount has been reduced to $12,500, or less. While the views of these courts are not binding upon us, they at least indicate in a general way the prevailing opinion as to the reasonableness of verdicts in this class of cases. Considering all the facts and circumstances as disclosed by this record, we think a recovery of $12,500 will compensate for the injury sustained, assuming, as we must, that it is possible to measure in money the extent of an injury which deprives a person of one member of his body.
It is ordered that this cause be remanded to the district court, with directions to grant a new trial, unless within thirty days after the remittitur is filed, and plaintiff has notice thereof, he shall file with the clerk of the district court his consent in writing that the amount of the judgment be reduced to $12,500 as of the date of the filing of such writing. If such written consent be filed within the time designated, then the judgment shall be modified accordingly, and as modified shall stand affirmed, and under those circumstances the order refusing a new trial will also be affirmed, with costs to respondent.
New trial granted nisi.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
Behearing denied April 17, 1911.
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PER CURIAM.
It is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed, in accordance with motion of respondent.
|
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] |
MR. JUSTICE SMITH
delivered the opinion of the court.
This cause was submitted to the district court of Silver Bow county, sitting without a jury, upon an agreed statement of facts. The court found in favor of the defendant Great Northern Eailway Company (the other defendants having been dismissed from the action), and judgment was entered accordingly. From that judgment, an appeal has been taken.
From the statement it appears that two tracks of the defendant company, known as the “Stockyards” and “Y” tracks, extend through the city of Butte; that Warren avenue, so-called, extends from a northerly direction up to the right of way of the railway company in the vicinity of these tracks; that there is another street' called Warren avenue, extending up to the right of way of the defendant company on the opposite side of the tracks, but which, if extended, would not connect with the first-named Warren avenue; that neither of said streets has been extended as a public highway across the tracks of the defendant, and the intervening space has never been dedicated to public use as a highway. It appears, however, that “for a period of at least fifteen years that portion of said ground over which said ‘Stockyards’ track and ‘Y’ track are constructed. which lies between the lower ‘ Y’ switch and the ‘Stockyard’ switch in said track have been continually used, without any invitation from, but with the knowledge of, said railway company and. its officials, by the people of that vicinity as pedestrians, for the purpose of crossing on foot from that portion of said city lying easterly and northeasterly from said tracks, to that portion lying on the southerly and southwesterly side thereof, and especially by large numbers of miners in going to and from their homes and to and from the mines northeasterly thereof, and to and from the Western Iron Works and other industries in which they are engaged; that while said crossings have been made by such persons indiscriminately at various points between said switches, the great number of said crossings has been made along a beaten footpath, and over a strip of ground which would have been within the limits of Warren avenue if it had been extended southerly or southwesterly ; that said tracks during all the times herein mentioned were, and still now are, built upon a railway grade or roadbed, the slope of which toward said Western Iron Works was and is about two feet vertically at the place where the deceased was killed, and varies’in other places from two to four feet as regards that portion thereof facing the Western Iron Works, and the length of said slope is about five feet from the ties to the level of the surrounding country, and the slope of the roadbed facing away from the Western Iron Works is about four feet deep vertically, with a length of slope of about ten feet; that John Meehan, deceased, left the saloon of John Skubitz at some time after midnight of October 6, 1908, intending to go to his cabin, which was then located in the vicinity of the buildings of the Largey Lumber Company (on the opposite side of all the Great Northern Eailway tracks), and upon leaving said saloon stated to Skubitz: ‘I am going up Warren avenue where I will only have two tracks to cross, and will avoid the rough travel and the danger of all the switching while crossing the yards’; that no one saw the deceased after he left the saloon, until about 3 o’clock on the following morning, when he was found lying across the ‘Y’ track aforesaid, with one leg across said track’; the leg had been run over and cut off, and the other leg broken by some car or cars of the Great Northern Railway Company, in consequence of which he was then in a dying condition, and subsequently died within a few hours; that the train of cars mentioned constituted the only cars or car or engine, or other vehicle, owned or operated by the Great Northern Railway Company or its employees, that was on any part of said ‘Y’ track on the night of October 6 or the morning of October 7; that a passenger train of the defendant company backed over the ‘Y’ switch on the night in question until the rear ear thereof had reached a point beyond the point where the deceased was found ; that neither on the night of October 6 nor the morning of October 7 was any portion of said ‘Stockyards’ or ‘Y’ track lighted by any means of illumination furnished by the railway company, but that during the whole of said night an arc-light of the same size and capacity as is used elsewhere in the city of Butte for street lighting purposes was located at a point about 300 feet distant from the place where the deceased was found; and said light was actually burning and giving the amount of light given by ordinary street electric arc-lamps; that in backing said train the trainmen did not blow the whistle at all, nor ring the bell at all; that there was an acetylene gas-light on the outside of and in the cupola of the rear platform of the rear car of the train, which was an observation car, said light being intended to light the rear platform thereof and being equal to about a thirty-two candle.-power electric-light, and the entire rear portion of said rear car consisted mainly of large windows and a door with full glass panels, but that no other lamps were on the outside of the rear end of said car as it backed down, nor was any brakeman or other employee of the defendant company stationed upon said rear car; that neither the railway company nor any of its employees discovered the presence of deceased on the track or learned of his death until four hours after he was found; that at the time the rear car of the train was going over the lower ‘Y’ switch, backing as aforesaid, it was running at a rate of four miles an hour, and thereafter the speed of said train was proportionately reduced from four miles an hour to a dead stop; that no obstructions of any kind existed at the time aforesaid within a circle with a radius of 200 feet, with a center at the point where said deceased was found, and no obstructions and no buildings or other structures of any kind existed on the ground lying between the track extending from said lower *Y’ switch to the ‘Stockyards’ switch, in a southerly direction to the south line of Second street, except as indicated; that at the time in question the Great Northern Railway Company had in force the two following rules: ‘ (1) The engine bell must be rung when an engine is about to move, also when running through tunnels and the streets of towns or cities, and for a quarter of a mile before reaching every public road crossing at a grade and until it is passed; (2) When a train is being pushed by an engine, except when shifting and making up trains in yards, a trainman must be stationed in a conspicuous position on the front of the leading car with the proper signals, so as to perceive the first sign of danger, and immediately signal the engineman’; that the night of October 6 and the early morning of October 7 were clear and windy, and the weather was fair; there was no precipitation; that persons who were in the vicinity of the place where Meehan was killed, differ as to whether it was cloudy and dark, or clear and bright.” It was further agreed that the judge of the district court might inspect the premises where Meehan was killed, and the observation car which ran over him. We presume the learned judge made the inspection.
It is contended on the part of the appellant (1) that the place in question was a “prescriptive highway”; (2) that, if not a prescriptive highway, the evidence shows a highway by common-law dedication; (3) that, if it was not a highway, the railway company owed to the deceased the same duty of .exercising ordinary care for his safety as would have been the case had it been a highway, on account of the fact that he was a licensee upon its tracks. We do not, however, find it necessary to decide the questions involved in these contentions, because we are of opinion that, assuming that the defendant was guilty of a want of ordinary care, the district court was justified in concluding that the plaintiff had failed to overcome the prima facie showing of contributory negligence on the part of deceased disclosed by the facts and circumstances embodied in the agreed statement.
In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the plaintiff, but its presence is a matter of defense. (Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Mulville v. The Pacific Mut. Life Ins. Co., 19 Mont. 95, 47 Pac. 650; Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 Pac. 140; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. 756; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Nelson v. Boston & Mont. C. C. & S. Min. Co., 35 Mont. 223, 88 Pac. 785; Birsch v. Citizens’ El. Co., 36 Mont. 574, 93 Pac. 940.) The law presumes that a person exercises ordinary care for his own safety. (Rev. Codes, sec. 7962, par. 4; Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243.) However, as was said by this court in Harrington v. Butte etc. Ry. Co., 37 Mont. 169, 95 Pac. 8, 16 L. R. A., n. s., 395: “When the plaintiff’s own case presents evidence which, if unexplained, would make out prima facie contributory negligence on his part, there must be further evidence exculpating him, or he cannot recover.”
Whether we regard the agreed statement of facts as constituting the plaintiff’s case alone, or that of both parties, which is perhaps more nearly the fact, the result is the same. On its face it discloses a case of unexplained contributory negligence on the part of the deceased. Let us remember that the railroad tracks were in themselves a warning of danger. Meehan was on foot, and there was nothing to divert his attention. Not only that, but he had in mind the necessity of crossing the tracks when he left the saloon, and in order to get upon them he was obliged to climb an embankment of some height. Even though it be conceded that the defendant company negligently omitted to light its tracks, and that its employees neglected to give the required signals, it was nevertheless the duty of Meehan to make a vigilant use of his senses; to look or listen, and to stop for that purpose, if necessary, to learn if there was danger. (Hunter v. Montana Central Ry. Co., supra.) He was bound to look and listen before attempting to cross the tracks, and not to walk carelessly into a place of danger. What situation do the surrounding facts and circumstances disclose ? The train was backed down to the place of the accident at a very slow rate of speed, so slow, indeed, that a man might easily walk ahead of it in safety; there was a city arc-light at a point not to exceed 300 feet away, and we take notice that such a light will east its rays much farther than 300 feet; the train consisted of several cars, besides the locomotive, and must have made some noise, even at the slow rate of speed at which it was proceeding; railroad ears are large objects, easily discernible by electric-light; added to this there was an acetylene gas-light in the cupola on the outside of the observation car, which was intended to, and, as we know from every-day experience, does light the rear platform of the car; there were no obstructions of any kind to interfere with the power of observation of the deceased, and no buildings or other structures which would tend to form a dark background to the ears as they approached. We are impelled to the conclusion that Meehan neither looked, listened, nor took any precautions for his own safety. Had he used his senses, he could not have failed both to hear and to see the approaching train. Having omitted to use them, he was guilty of contributory negligence, and the district court properly so held.
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr..Justice Holloway concur.
|
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MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover $157.70 and costs, and to establish and foreclose a mechanic’s lien. The complaint alleges that in June, 1909, the plaintiff entered into a contract with the defendants W. W. Lamb and Boama M. Lamb, by the terms of which he agreed to furnish materials and do work for which the defendants Lamb agreed to pay him certain prices aggregating $157.70; that plaintiff fully performed his part of the contract, completing the work on August 7, 1909; that defendants have failed and refused to pay him any sum whatever; and that on August 14, 1909, he filed for record his claim for a lien. A copy of the lien is attached to and made a part of the complaint by reference. The complaint also contains a description of the property sought to be charged, and it is alleged that, while the defendant McDonald has some interest in the property, the real owners are the defendants W. W. Lamb and Boama M. Lamb. A joint answer was filed by the defendants, which admits the ownership of the property to be in the defendants Lamb, and admits the filing of plaintiff’s lien on August 14, 1909. There is an affirmative defense by all of the defendants and a counterclaim by defendants W. W. and Boama M. Lamb. The cause was tried to the court without a jury. At the conclusion of plaintiff’s case, the defendants by a joint motion moved for a nonsuit, specifying several different grounds. The motion was sustained and a judgment rendered and entered that plaintiff take nothing, and that defendants recover their costs. From that judgment and an order denying his motion for a new trial, the plaintiff appealed.
1. Upon the assumption that the lien itself is invalid, the judgment is nevertheless erroneous; for the plaintiff was prima facie entitled to a personal judgment against W. W. Lamb and Roama M. Lamb, if his complaint states a cause of action for money due, and the proof sustained it. In Western Plumbing Co. v. Fried, 33 Mont. 7, 114 Am. St. Rep. 799, 81 Pac. 394, we reviewed the former decisions of this court, and held that, even though the plaintiff fails to establish his lien, he may still have a personal judgment in the same action against the person liable for the material furnished or work or labor done. The complaint in this instance clearly states facts sufficient to constitute a cause of action for money due, and there is not any contention made that it does not; but it is insisted that there is a fatal variance between the allegations of the complaint and the proof, in these two particulars: (1) Plaintiff “alleged a contract with W. W. Lamb and Roama M. Lamb, and submitted his proof showing only an agreement with W. W. Lamb.” (2) Plaintiff ‘1 alleged a contract showing an agreement to do a good ordinary job, and his testimony shows that he agreed to do a good job.”
In their counterclaim the defendants W. W. Lamb and Roama M. Lamb allege affirmatively that they employed plaintiff to do the work described in the complaint, and, having thus admitted that the contract was made by both, they cannot now be heard to say that it was not, or that there is a material variance between the plaintiff’s pleading and the proof in this respect. The defendants W. W. Lamb and Roama M. Lamb are bound by the position which they assumed in their pleading; and defendant McDonald, having joined with them in the motion for nonsuit, will suffer with them, if the order was erro neous as to any of them. (Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994.)
The plaintiff alleges that he was employed to do “a good, ordinary job.” The evidence tends to show that he was to do an “ordinary job,” or “a good job,” or “ordinary, just a good job.” Section 6585, Revised Codes, provides: “No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” We do not think there is a court in the land which would hold that the slight, technical variance above is material. The proof follows the pleading substantially, and this appears to be all that is required. (Robinson v. Helena Light & Ry. Co., 38 Mont. 222, 99 Pac. 837; Yancey v. Northern Pacific Ry. Co., 42 Mont. 342, 112 Pac. 533; Barrett-Hicks Co. v. Glas, 14 Cal. App. 289, 111 Pac. 760.) The plaintiff having shown prima facie that he is entitled to a personal judgment in this action, the judgment denying him any relief whatever is erroneous and must be reversed.
2. The lien which is attached to the complaint does not follow the exact terms of the statute. Section 7291, Revised Codes, provides that the lien claimant must file with the county clerk “a just and true account of the amount due him, after allowing all credits,” etc. The notice of lien in this instance states: “That there is due and owing to said C. F. Wertz from W. W. Lamb and Roama M. Lamb, husband and wife, of Bozeman, Montana, after allowing just credits and offsets, the sum of one hundred and fifty-seven and 70/100 (157.70) dollars.” It will be observed that the word “all” before the word “credits” in the statute is omitted in this lien notice, and the word “just” inserted in lieu thereof. The right to a lien is given by statute, and the statute must be complied with substantially in order that the lien may be created. (McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428.) Our present Code provision is substantially the same as section 6, Chapter 40, page 510, of the Laws of 1871-72, and in Black v. Appolonio, 1 Mont. 342, this court in construing that section said: “It appears to us that all our statute requires is that a person wishing to avail himself of the benefits of it should honestly state his account”; and this has been accepted as a correct interpretation ever since. (Western Iron Works v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. 413; Mills v. Olsen, 43 Mont. 29, 115 Pac. 33.)
As disclosed by the remarks made at the time the nonsuit was granted, the trial judge apparently entertained the idea that the lien notice must have attached to it a verification, in form similar to that required for pleadings. In this instance the entire lien is in form an affidavit, with an itemized statement attached. Section 7291 above provides that the lien shall be “verified by affidavit.” The word “verified” means to confirm by oath. (Anderson’s Law Dictionary.) “An affidavit is a written declaration under oath.” (Rev. Codes, see. 7988.) In Western Plumbing Co. v. Fried, above, this court said: “The statute provides that the lien is made up of, first, the account; second, the description of the property; and, third, the affidavit.” But this language was employed in speaking of matters of substance, and not of form. In Bethell v. Chicago Lumber Co., 39 Kan. 230, 17 Pac. 813, the statute considered provided: “Any person claiming a lien as aforesaid, shall file in the office of the clerk of the district court of the county in which the land is situated, a statement setting forth the amount claimed, * * * verified by affidavit. ’ ’ And the court said: “The statement constituting the contract and the lien were all included in the affidavit; and the plaintiff in error contends that because of this fact there was no lien. It does not to us seem material whether or not the facts alleged and set out, which, if true, entitled the claimant to a lien, are set out in a statement by themselves, and an affidavit attached thereto, or whether all these facts are embraced in the affidavit itself.” Substantially the same doctrine is announced in Boisot on Mechanics’ Liens, see. 450; Rockel on Mechanics’ Liens, see. 81; Bender-Moss on Law of Mechanics’ Liens, sec. 410; Kezartee v. Marks & Co., 15 Or. 529, 16 Pac. 407; Parke & Lacy Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 82 Pac. 51; Turner v. St. John, 8 N. D. 245, 78 N. W. 340. The lien must comply substantially with the requirements of the statute; but it is not necessary that the exact words of the statute should be used. Certainty to a common intent is sufficient. (27 Cyc. 152, 153.)
Plaintiff’s lien is made up of an,account and a description of the property, contained in a paper which is itself an affidavit, and, since our statute does hot require that any particular form be observed, we think it is a sufficient compliance with, and meets fully the demands of, the Code as determined in Western Plumbing Co. v. Fried, above.
3. Objection is made by respondent that the lien was not introduced in evidence. A copy of the lien was attached to the complaint and by reference made a part of it. The answer admits that, “on or about the fourteenth day of August, 1909, the plaintiff perfected and filed the alleged lien' mentioned in plaintiff’s complaint upon the building and land therein described.” The lien was therefore before the court, and it was not necessary that it be separately introduced in evidence. A party is required to prove only matters in issue. There was not any issue made by the pleadings in this case which the lien, if introduced, would have tended to prove.
4. In McGlauflin v. Wormser, above, this court held that the plaintiff, in an action to foreclose a mechanic’s lien, must allege and prove that he has complied with the requirements of the Code (sec. 7291, above; Code Civ. Proc. 1895, sec. 2130). In the present instance the complaint alleges: “That on the fourteenth day of August, 1909, the plaintiff, for the purpose of securing and perfecting a lien for the moneys due him as aforesaid, under said contract upon the building and land herein-before described under the provisions of the laws of the state of Montana, filed for record in the office of the county clerk and recorder of Gallatin county, Montana, his claim for the amount so due him, duly verified as required by law, a copy of which lien is hereto attached and marked, ‘ Exhibit B, ’ and the same is made a part of this amended complaint.” If the lien is sufficient, a reference to it in the complaint to which it is attached is likewise sufficient for the purpose of showing compliance with the statu tory provisions. (27 Cyc. 387, and note; Matthiesen v. Arata, 32 Or. 342, 67 Am. St. Rep. 535, 50 Pac. 1015.)
5. The complaint alleges that the plaintiff completed his work on or about August 7, 1909, and that his lien was filed on August 14, 1909. This is a sufficient allegation that the lien was filed within ninety days after the materials were furnished and the work done. (Bust-Owen Lumber Co. v. Fitch, 3 S. D. 213, 52 N. W. 879; 27 Cyc. 369.)
6. Counsel for respondents in his brief says: “We therefore respectfully submit that the judgment of the district court should be affirmed, and that the plaintiff should be permitted to proceed against the defendants for a personal judgment, if. he has any right of action at all.” But it is impossible for the plaintiff to proceed at all in this action, if the judgment be affirmed, for he is confronted by the judgment, which recites that he is not entitled to any relief whatever. If he is entitled to a personal judgment, he is entitled to it in this action, not in some other action which he might commence. It is never the policy of the law to require two actions to be prosecuted where one will afford the same relief; and even if plaintiff commenced an action, he might be met with this judgment, pleaded in bar of his right to recover.
7. Counsel for appellant urge that this court should direct the foreclosure of plaintiff’s lien, citing the principle announced by this court in actions at law (State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 105 Pac. 721; Gregory v. Chicago etc. Ry. Co., 42 Mont. 551, 113 Pac. 1123), and in suits in equity (Short v. Estey, 33 Mont. 261, 83 Pac. 479). The Code declares that in equity cases this court shall, on appeal, determine the controversy, “unless for good cause a new trial or the taking of further evidence in the court below be ordered.” (Revised Codes, sec. 6253.) In actions at law, where plaintiff should have been nonsuited or a directed verdict for defendant should have been ordered, and the proper motion was made and denied, this court will generally direct final disposition of the cause. (State ex rel. La France Copper Co. v. District Court, above.) The present case does not fall within either rule, and the circumstances do not warrant the application of either rule. The procedure for the foreclosure of a claim secured by a mechanic’s lien, under our Code, is sui generis; it is neither strictly at law nor in equity, but it is a blending of both. (Mcchon v. Sullivan, 1 Mont. 470.) In so far as the entry of a personal judgment upon the failure of the lien is authorized, the procedure is at law; while the foreclosure of the lien is governed by the rules of equity. Much confusion would be avoided in actions of this character if the question of indebtedness was first tried as an ordinary action at law, and, if anything is found to be due to the lien claimant, then proceed as in equity.
The pleadings in this action raise an issue as to whether there is in fact anything due to the plaintiff, and also an issue as to whether defendants Lamb are entitled to recover on their counterclaim. Neither of these issues has ever been fully tried.
The order granting the nonsuit and the judgment denying plaintiff any relief were entered erroneously, and for these errors the judgment and order denying a new trial are reversed, and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant has appealed from the judgment rendered against him herein, and from an order denying his motion for a new trial. The judgment was entered on January 29, 1910. The order denying the motion for a new trial was made on January 18, 1911. Notice of appeal from the judgment and order was served and filed on March 13, 1911. The appeal from the judgment was not taken until the lapse of more than one year after its entry, and is therefore not before us. (Rev. Codes, sec. 7099.) It is accordingly dismissed.
The plaintiff brought the action to compel the defendant to account to him for the value of his share of the increase of a herd of cows and a band of mares, which, it is alleged, the defendant delivered to the plaintiff in the spring of the year 1901, to herd, care for, and breed, under a verbal agreement; that in consideration of his services in that behalf and the care by plaintiff and his wife of certain ranches situate in Madison and Carbon counties, the plaintiff was to receive one-half of the increase, the defendant agreeing to pay certain specified items of expense and to furnish necessary hired help. It is alleged that the agreement was to continue in force so long as the parties were mutually satisfied, but that it was determinable at the' option of either party, whereupon all of the old animals then living were to be returned to the defendant, and the increase not theretofore sold should be equally divided. It is further alleged that the agreement continued in force, the plaintiff having observed all of its terms and conditions, until April 1, 1904, when the defendant terminated it, and, contrary to its provisions, wrongfully took exclusive possession both of the old animals and the increase, except such as had died or been sold, and still retains such possession, refusing to account to the plaintiff for any part of the increase or for Ms share of the proceeds of the sale of a large number of calves and colts, made by defendant during the time the agreement was still in force. The prayer is (1) that the defendant be required to account for the proceeds of all sales made during the life of the agreement, and to pay to plaintiff his share thereof; (2) that the property still unsold be partitioned between the parties, if partition can be made without material injury to their respective rights, or, otherwise, that the property be sold and the' proceeds divided equally; (3) that an injunction issue restraining the defendant from mailing other sales, and that a receiver be appointed to take charge of the property pending the litigation; and (4) that plaintiff have general relief.
Among other defenses which are not now in question, the defendant relied on the limitations prescribed by subdivisions 2 and 3 of section 6449, and subdivision 3 of section 6447, of the Revised Codes. At the close of plaintiff’s evidence the court denied a motion by defendant to dismiss the action on the ground that it was barred, holding that it did not fall within any of the limitations pleaded. Whether the ruling was correct is the only question submitted for decision.
Counsel for defendant has devoted much space in his brief to a discussion of the character of the action. He argues (1) that it is an action for trespass on personal property and is barred by subdivision 2 of section 6449, fixing the limitation at two years; or (2), in case this is not the class in which it falls, that it is for the taking, detaining or injuring of personal property and is barred by the same limitation prescribed in subdivision 3 of this section; or (3) that otherwise it is clearly an action upon “an obligation or liability, not founded upon an instrument in writing, other than a contract, account or promise,” and hence must fall within, and is barred by, the limitation of three years prescribed by subdivision 3 of section 6447. Counsel for plaintiff contend that it is an action for an accounting, and hence that the limitation of five years, prescribed by section 6451, applies. It follows therefore, they say, that the defendant’s motion was properly denied. It is not necessary to determine any of these contentions.
The agreement was terminated by the defendant and possession assumed by him on April 1, 1904. This is the third action brought by the plaintiff for the cause determined in this case. The first was brought on April 5, 1904. This was dismissed upon plaintiff’s own application, but without prejudice, on March 6, 1905. On the same day another action was commenced. The trial of this latter, on May 20, 1907, resulted in a judgment of nonsuit on motion by the defendant. The present action was brought on July 16, 1907, or within one year thereafter. No question is or can be made that the second action, a substitute for the first, was brought in time. From an inspection of the record in this latter ease, the material parts of which are incorporated in the bill of exceptions, it is apparent that it was terminated in a manner other “than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits.” Therefore, the action of the trial court in denying the motion was correct. (Rev. Codes, sec. 6464; Glass v. Basin & Bay State Min. Co., 34 Mont. 88, 85 Pac. 746; Id., 35 Mont. 567, 90 Pac. 753.),
The order is affirmed.
Affirmed.
Mr. Justice Smith and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover damages claimed to have been suffered by plaintiff as the result of alleged negligence on the part of the city of Butte. The trial of the cause resulted in a verdict and judgment in favor of the defendant city. The trial court granted plaintiff a new trial, and defendant appealed from the order.
The complaint alleges that the city was negligent in caring for a certain public sewer; that the sewer-pipe became decayed; that the city was given notice of the defect, but failed to make repairs; that the sewer-pipe finally gave way, and the sewage flowed out. over plaintiff’s property, causing damage to the amount of $2,750. The complaint does not allege that plaintiff, or anyone in its behalf, ever gave to the city or its officers any notice of the injury. It is alleged that the damage occurred on May 15, 1909. The action was commenced on November 4, 1909. Section 3289, Revised Codes, provides: “Before any city or town in this state shall be liable for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public ground, ferry-boat or public works of any kind in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred.” The provisions of this section are applicable alike to injuries to person and injuries to property. (Nichols v. City of Minneapolis, 30 Minn. 545, 16 N. W. 410.) In Tonn v. City of Helena, 42 Mont. 127, 111 Pac. 715, the reason for requiring such notice is fully set forth. The same reason exists for the notice in case of injury to property as in case of injury to the person. (Nichols v. City of Minneapolis, above.) In an action against a municipality, under a statute of this character, the rule is quite uniform throughout the country that in order to state a cause of action, the complaint must allege that the required notice was given. <28 Cyc. 1470.)
In failing to allege that the notice was given, the complaint fails to state a cause of action, and the trial court erred in granting .a new trial. The order is reversed and the cause is remanded, with directions to set aside the order, and enter, in lieu thereof, an order refusing plaintiff a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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] |
PER CURIAM.
The appeal in the above-entitled cause is hereby, upon appellant’s motion, dismissed.
|
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ME. JUSTICE SMITH
delivered the opinion of the court.
This action was begun in Silver Bow county to compel the defendants O’Neill and Flanigan, who are president and secretary, respectively, of the defendant corporation Open Eange Sheep Company, to transfer to the plaintiff on the boobs of the company, twenty-three shares of its capital- stock theretofore standing in the name of C. B. McCarthy, and to issue to plaintiff a certificate of stock in his own name for said number of shares. The district court found generally in favor of the plaintiff and entered a judgment as prayed for. The cause was tried without ■the assistance of a jury. Defendants appeal from the judgment and also from an order denying their motion for a new trial. The record is voluminous, but careful examination thereof dis closes but few contested questions of fact, all of which are presumed to have been resolved in favor of. the respondent.
There is substantial evidence to warrant the following specific findings of fact: In the summer of 1906 the appellant O’Neill owned a sheep ranch near Miles City which was mortgaged; the mortgage was about to be foreclosed, and O’Neill gave to C. B. McCarthy an option to purchase the ranch. McCarthy associated himself with the respondent Fitzpatrick and, after spending some time in perfecting the necessary preliminary arrangements, on November 21, 1906, they organized the Open Range Sheep Company with a capital stock of $95,000, divided into 950 shares of $100 each, and (apparently) five directors; O’Neill received 175 shares of the capital stock for his ranch, and the company assumed his indebtedness; Fitzpatrick and McCarthy, at that time president and secretary, respectively, issued to themselves 345 shares as promotion stock, and each purchased sixty-five shares, paying cash and par therefor. The company then sold to the appellant Flanigan fifty shares of treasury stock for $5,000 in cash. On March 25, 1907, a meeting was held in the office of Judge McHatton at Butte, which meeting was attended by Sydney Sanner, Esq., as attorney for O’Neill; Judge McHatton, who had theretofore been named as a director but who was not a stockholder; McCarthy and Fitzpatrick. The purpose of this meeting was to settle differences which had arisen relative to the 345 shares of so-called promotion stock held by McCarthy and Fitzpatrick. Judge McHatton and Mr. Sanner informed them that they had no right to these shares of stock issued to themselves without authority, but Judge McHatton said that they were entitled to some remuneration for promoting the company. Mr. Sanner said: “They certainly are. What do you think is right?” Fitzpatrick replied: “About fifty shares or $5,000.” Mr. Sanner said: ‘ ‘ That is very reasonable, and I will advise Mr. O ’Neill to do that, ’ ’ also stating that he expected that they would charge $10,000. Someone then suggested that McCarthy write to Flanigan, who was at Hot Springs, Arkansas, relative to the matter under discussion, and McCarthy immediately wrote a letter, of which the following is a copy:
“March 26, 1907.
“Friend Jerry:
“There will be a meeting of the stockholders of the Open Range Sheep Company, held at its offices in Butte, Montana, for the purpose of electing a board of directors and officers of the company and such other business that might properly come before it. Said meeting to be held within two weeks from this date or as soon as we can get your proxy, which proxy we would like that you send here at the earliest possible date. This meeting was discussed last evening by the directors, that is Judge McHatton, Mr. Fitzpatrick, Mr. Sanner (representing Mr. O’Neill), and myself, and it was the sense that you be written with request that you sign the enclosed proxy for your wife, Mrs. Flanigan, in order that she might vote for you at said meeting, in your stead. The proposition of what would be fair to allow McCarthy-Fitzpatriek for their trouble in getting the property of the company together, and in organizing it, was the opinion of those present that fifty shares would be reasonable for said work, all of which would be satisfactory to us. Now, in order to make this legal it would be necessary for the stockholders to vote this amount of stock to us as compensation for the organization of the company, at a meeting to be held within two weeks. If you think it reasonable you might instruct Mrs. Flanigan to so vote. We have, as you know Jerry, put in all of our time in the organization of this company, and have paid in cash for shares of stock we have. We have never made any charge for looking after the business thus far, and we thought It only fair that the company allow us a reasonable amount for our services rendered. This will, of course, be in stock. The company is in excellent shape, and will, I am sure, be able to pay a handsome dividend on the investment this year. Trusting that you will give the matter of signing the enclosed proxy yonr early attention, in order that it will reach us at the earliest possible date, we are,
‘ ‘ Resp ectfully' yours,
‘1 McCarthy-Fitzpatkick, Inc.
“Per C. B. McCarthy.”
Inclosed was a blank proxy, drawn by Judge McHatton. Flanigan replied: “I have instructed Mrs. Flanigan that you are [or] Fitz would instruct her Me what is right is right please -find enclosed proxy as you requested.” Inclosed in this letter was the power of attorney or proxy, running to Mrs. Lou Flanigan and duly signed by her husband. By this power of attorney, authority was expressly delegated to vote in favor of the issuance of twenty-five shares of stock each to McCarthy and Fitzpatrick. The 345 shares of promotion stock held by McCarthy and Fitzpatrick were surrendered and canceled on March 26, 1907. On April 6, 1907, a directors’ meeting was held in Butte, at which Fitzpatrick, O’Neill and McCarthy were present; at this meeting the matter of giving McCarthy and Fitzpatrick twenty-five shares of stock each for promoting the company was discussed; a stockholders’ meeting was subsequently held on the same day. The following is a minute of what took place at this stockholders’ meeting:
“Minutes of a special meeting of the stockholders of the Open Range Sheep Company, held at its offices in Butte, Montana, this 6th day of April, 1907.
“Those present: F. D. O’Neill, representing 175 shares of stock. J. J. Flanigan (by proxy Mrs. Lou Flanigan) representing 50 shares. J. B. Fitzpatrick, representing 65 shares; and C. B. McCarthy, representing 65 shares.
“The following business to be acted on: F. D. O’Neill moves that the company deliver to C. B. McCarthy and J. B. Fitzpatrick 50 shares of the capital stock of the Open Range Sheep ■Company, to be in full payment for all services rendered in promotion of the said company. J. J. Flanigan (by proxy Mrs. Lou Flanigan) representing 50 shares, in favor of the resolu tion; F. D. O’Neill, representing 175 shares, in favor; C. B. McCarthy, representing 65 shares; and J. B. Fitzgerald, representing 65 shares, in favor of the resolution.
“No other business being before the meeting, on motion adjourn,
“Frank D. O’Neill.
“J. J. Flanigan,
“Prox. Mrs. Lou Flanigan.
“J. B. Fitzpatrick.
“C. B. McCarthy.”
The minutes of the directors’ meeting of April 6 show an attempt to substitute O’Neill for Brophy as a director, and the former afterward acted and voted as such. On the day before the stockholders’ meeting of April 6, McCarthy called on Mrs. Flanigan and showed her the letter from her husband, together with the proxy. The latter document was present, on the table, during the stockholders’ meeting and was then filed with other papers of the company. As to what took - place at the meeting, O’Neill testified as follows: “I explained to Mrs. Flanigan and those there that these men felt they were entitled to certain remuneration and that it had been decided by attorneys and others that they were entitled to $5,000 in stock, with the understanding that they would proceed to promote and further and make a success of the business and settle all our little differences and everything else; and, for general welfare of the business, we were granting these men that amount of stock, not merely for the services they had rendered, but with the understanding that they would then take the position of promoters, and promote the business to a final success which they have not done to this time.” After the meeting twenty-five shares of stock were issued to McCarthy by certificate No. 12, and twenty-five to Fitzpatrick by certificate No. 11. On July 17, 1907, a, stockholders’ meeting was held at Miles City, at which McCarthy voted all of his shares without objection. Certain by-laws were adopted, by one of which it was provided that the number of directors should be three. A president and general manager, vice-president, secretary and treasurer, and three directors were elected. One of the by-laws adopted reads as follows. “No stock of this company now in the treasury shall be sold or disposed of to any person for any price or for any purpose except by a vote of the majority of the stock outstanding, at a meeting regularly called for that purpose, and no stock in the treasury shall in any case be sold for less than par.” At a stockholders’ meeting held on August 5, 1907, at Butte, Judge MeHatton, as proxy for Fitzpatrick, voted all of the latter’s stock without objection. The stockholders at this meeting ratified the proceedings had at Miles City on July 17, again elected a board of directors and a president and general manager, authorized the president to sign checks and pay the current expenses of the company, and resolved that certain payments be made upon a mortgage against the company, held by the First National Bank of Miles City. On December 2, 1907, Fitzpatrick purchased of McCarthy, for a valuable consideration, twenty-three of the twenty-five shares of stock evidenced by certificate No. 12, and on January 16, 1908, these twenty-three shares were assigned to him by indorsement on the back of the certificate. The stock was purchased as an investment. On January 20, 1908, O’Neill and Flanigan purported to hold a directors’ meeting at which they ordered certificates Nos. 11 and 12 canceled. On March 18, 1908, O’Neill, as president, and Flanigan, as secretary, notified McCarthy and Fitzpatrick that the stock had been canceled. On April 9, 1908, Fitzpatrick presented certificate No. 12 to Flanigan, as secretary, with the request that the stock be transferred in accordance with the assignment thereof, and Flanigan refused, stating that it was canceled. •
1. While some suggestion is made in the brief of counsel for the appellants that the plaintiff is not in a situation to invoke the aid of a court of equity, the point does not appear to be insisted upon; and we are satisfied, moreover, that under the circumstances of this case, it is not well taken. In their excellent work on Private Corporations, volume 3, section 605, Messrs. Clark and Marshall thus express the rule: “There are some cases in which it has been held that a suit in equity will not lie to compel a corporation to register a transfer on its books and issue a new certificate to the transferee, on the ground that there is an adequate remedy at law by an action to recover damages for its refusal to recognize and make the transfer. This view, however, is contrary to the overwhelming weight of authority. An action for damages does not always afford an adequate remedy for refusal of a corporation to recognize a person as a stockholder, and it is well settled, therefore, that if a corporation wrongfully refuses to recognize and register a valid transfer of stock, and issue a new certificate to the transferee, he may maintain a bill in equity to compel it to do so.” And see our own case of Barker v. Montana Gold etc. Co., 35 Mont. 351, 89 Pac. 66.
Counsel also says: “After reading the pleadings and the evidence, the court will observe that the material issue of fact involved herein is: Was the vote of the stockholders in favor of paying C. B. McCarthy and J. B. Fitzpatrick for promotion services induced and secured upon the supposition that the company was legally liable therefor?” And again: “As a matter of law, is, or was, the company liable to its promoters for services in creating it?” We find nothing in the record to justify a finding that McCarthy and Fitzpatrick induced the stockholders to vote in favor of the issuance of stock to them by any claim that the corporation was legally liable for promotion services, or that any threats were made which impelled the stockholders to vote contrary to their convictions in the matter. We find no evidence of deceit or misrepresentation on the part of McCarthy and Fitzpatrick. On the contrary, they appear to have been very frank and open in the premises, submitting to the judgment of Judge McHatton and Mr. Sanner when advised that they could not hold the 345 shares, and when at the suggestion of the attorneys they were invited to name a sum which would be satisfactory to them for their services, they named an amount which was regarded by all present as reasonable and proper. The testimony of the appellant O’Neill himself is amply sufficient to show that the issuance of the two certificates Nos. 11 and 12 was the result of an arrangement which was perfectly agreeable and satisfactory to all present at the stockholders’ meeting of April 6, 1907. McCarthy fully and fairly stated the facts to Flanigan and the latter executed the proxy to his wife with full knowledge that his stock was to be voted in favor of the issuance of the stock in dispute.
It is not necessary to decide here whether there is any liability on the part of a corporation to its promoters in the absence of an express promise by it after organization. On April 6, 1907, the Open Range Sheep Company was fully organized, although all of its capital stock had not been subscribed. No question as to the rights of subsequent stockholders having no knowledge of the issuance of the stock is before us. All of the then stockholders had knowledge that the stock was about to be issued and all agreed to the issuance. No stockholder was, misled or deceived. All agreed that the amount issued was reasonable. Under these circumstances we are of opinion that the corporation could legally issue stock in payment for services performed in its promotion and organization, and that the issuance of such stock must be deemed to have been upon sufficient consideration. (See 1 Clark & Marshall on Private Corporations, sec. 103; Hayward v. Leeson, 176 Mass. 310, 320, 57 N. E. 656, 49 L. R. A. 725; Franklin Fire Ins. Co. v. Hart, 31 Md. 60; Western Screw & Mfg. Co. v. Cousley, 72 Ill. 531.)
2. But it is contended that the stock could not be legally issued by authority of the stockholders. Appellants maintain that the directors alone possessed the power to bind the corporation in this regard. Section 3833, Revised Codes, provides that the corporate powers, business and property of all domestic corporations must be exercised, conducted and controlled by a board of directors. But it is not the universal rule that the corporation must act exclusively through its board of directors. “Formal action is often dispensed with, even in the most important matters, where all the members of the corporation, including the shareholders and directors, are present and concur, although there is no formal vote either of the shareholders or of the directors.” (10 Cye. 761; Lemars Shoe Co. v. Lemars Shoe Mfg. Co., 89 Ill. App. 245.) In the ease of Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332, it was held that a chattel mortgage agreed upon and assented to by all the directors and stockholders of a corporation assembled together, and drafted and executed in their presence, was valid, notwithstanding “there was no formal action, or the record of any action taken, carried on the records of the company authorizing the making of the mortgage. ’ ’ Perhaps the leading case on this subject is Union Pac. Ry. Co. v. Chicago etc. Ry. Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265. In the opinion prepared by the late Chief Justice Fuller, it appears that the executive committee of the Union Pacific Railway Company passed a resolution approving a certain contract and authorizing the president of the company to execute it; that afterward the stockholders at their regular annual meeting voted to approve the contract and the action of the executive committee relative thereto. The board of directors never formally acted. The parties to the contract immediately entered upon its execution. The court summarily disposed of the matter in the following language: “Appellants contend that the action of the stockholders and the executive committee was ineffectual because the board of directors was the only body that could authorize the president and secretary to make the contract. The contract appearing on its face to have been duly executed, and the parties having entered upon its execution, necessarily with the full knowledge on the part of the board of directors of the Pacific Company, the board would be presumed to have ratified it, although it in fact took no affirmative action in the matter.”
The ease at bar is even stronger than the federal case in favor of the validity of the action of the stockholders and the ratification of their act by the board of directors. The record shows that at the time this resolution was taken the corporation had not adopted any by-laws, but when by-laws were finally adopted, on July 17, 1907, it was expressly provided that no treasury stock should be sold or disposed of except by a vote of the majority of the outstanding stock. This by-law discloses the attitude of the corporation in the matter of disposal of stock. The minutes of the several meetings, heretofore quoted, show that the stockholders of the corporation performed many of the ordinary functions of management usually left to the directors. At the meeting at which the stock was voted to McCarthy and Fitzpatrick every outstanding share of stock was duly represented and voted in favor of O’Neill’s motion; every director who held any stock was present, save Flanigan; and if we assume that O’Neill was properly elected as a director in place of Brophy (a matter which he may not question after having acted as such), then a majority of all the directors was present and assenting. The fact that McCarthy and Fitzpatrick also voted their stock is immaterial, for the reason that the result would have been the same had they not done so. In addition to the foregoing we have the fact that this stock was subsequently twice voted without objection at stockholders’ meetings at which Flanigan and O’Neill were both present. Under these circumstances we are satisfied that it would be altogether inequitable for this court to declare these two certificates of stock invalid as having been issued without authority.
3. The fact that the by-laws provided that none of the officers of the corporation should receive any salary or compensation for any services rendered or to be rendered has no bearing upon the questions we have under consideration.
4. The stock having been legally issued upon a sufficient consideration, the attempt to cancel the certificates was a nullity.
5. In view, of the fact that the court below found all of the issues in favor of the plaintiff, we find nothing in the record to justify the conclusion that he is not invoking the aid of the court “with clean hands.”
We have examined the other specifications of error but find nothing to warrant a reversal.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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] |
ME. JUSTICE SMITH
delivered the opinion of the court.
The district court of Lewis and Clark county, on February 17, 1909, in the case of Dolenty v. Rocky Mountain Bell Telephone Company, entered a judgment for the defendant; on appeal to this court, the judgment was reversed, and the following order entered: “Since there is not any dispute as to the facts of this case, a new trial is not necessary; but the cause is remanded to the district court, with directions to set aside its findings and judgment, and enter judgment in favor of the plaintiff for $1,821.93 and costs.” (Dolenty v. Rocky Mountain Bell Tel. Co., 41 Mont. 105, 108 Pac. 921.) This order was made on April 18, 1910. On May 18, 1910, respondent’s motion for a rehearing was denied. No motion was made in this court by the appellant for a correction of the order, or for a nunc pro tunc order providing for interest on the judgment. On May 23, 1910, a remittitur was filed with the respondent, clerk of the district court; on January 5, 1911, counsel for Dolenty presented to the respondent a judgment in the sum of $1,821.93, with costs, and demanded, in effect, that it be entered as of February 17, 1909, so that it would draw interest from that date. The clerk refused to enter the- judgment, whereupon this proceeding in mandamus was instituted to compel him to do so. The matter has been submitted on the pleadings.
When the remittitur was issued, this court lost jurisdiction of the cause. (Kimpton v. Jubilee Placer Min. Co., 16 Mont. 379, 41 Pac. 137, 42 Pac. 102.) Section 7120, Revised Codes, provides that, when judgment is rendered upon appeal, it must be certified by the clerk of the supreme court to the clerk with whom the judgment is filed, or the order appealed from is entered, and in cases of appeal from the judgment the clerk with whom the roll is filed must attach the certificate to the judgment-roll, and enter a minute of the judgment of the supreme court on the docket against the original entry. The respondent complied literally with the mandate of this 'statute. However, in the absence of other legislative directions on the subject, the practice of signing and recording a formal judgment, on receipt of the remittitur, by the clerk, has long been established, as we believe. Such practice appears to us to be legal and proper, and has a tendency to make the reeprd certain and specific. "We recommend its continuance.
While it is true that this court in the original case instructed the court below to set aside its former judgment and enter one as directed, the mandate must be interpreted in the light of the statute laws governing the entry of judgment after appeal. The entry of judgment for the plaintiff would ipso facto vacate the judgment for the defendant, and the direction to enter judgment as instructed must be construed as addressed to the clerk. Our order was silent as to interest, and therefore it was the clerk’s duty to enter such judgment as was authorized by law; the amount of the judgment, exclusive of interest, having been definitely fixed by this court. Section 7173, Revised Codes, provides that the “clerk must include in the judgment entered by him, any interest on the verdict or decision of the court, from the time it was rendered or made.” The preceding section relates to costs on appeal, after remittitur filed with the clerk below, and section 7173 may very well be construed as applying to judgments rendered or ordered by an appellate court. However that may be, we think it should, by analogy, be so applied as to make it the duty of the clerk below, in the absence of specific directions as to interest, to include in the judgment interest from the date of the order of this court to the time of entry.
As the respondent was without authority to enter the judgment tendered him, the proceedings are dismissed.
Dismissed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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PER CURIAM.
It is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed, on motion of appellant.
|
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MR. JUSTICE ANDERSON:
This action was brought for the purpose of quieting title to certain property in Glacier County. Herman and Marvin C. Erdmann were plaintiffs and Minnie Erdmann was defendant. The district court, sitting without a jury, heard evidence for the plaintiffs. The defendant rested without introducing any evidence. The district court found that neither of the plaintiffs were entitled to recover judgment against the defendant, and that the evidence was insufficient, and therefore dismissed the action. From this judgment plaintiffs appeal.
Respondent moves for the first time in this court to strike the bill of exceptions for the reason that it was not presented for settlement within the time allowed by law or any valid extension thereof in that the last extension was void for want of a sufficient affidavit showing the necessity therefor. Appellants then filed a motion for diminution asking that the transcript be corrected by adding a copy of the affidavit for extension of time, which affidavit had been timely filed in district court but overlooked in the preparation of the original transcript.
Counsel for the respondent contends that this court has no jurisdiction under the rule laid down in O’Donnell v. City of Butte, 72 Mont. 449, 235 Pac. 707, and further contends that nothing said on the same point in Atlantic-Pacific Oil Co. of Montana v. Gas Development Co., 105 Mont. 1, 69 Pac. (2d) 750, militates against the rule in the O’Donnell Case.
The order granting the plaintiffs additional time, in the instant case, in addition to the time theretofore allowed, reads in part as follows: “Upon application of the plaintiffs in the above entitled cause of action, and good cause appearing therefor ;
“It Is Hereby Ordered That the plaintiffs be, and they are hereby granted an additional fifteen (15) days to the time already allowed by the Court herein, for the preparation, filing and serving their Bill of Exceptions in the above-entitled matter. ’ ’
Under R. C. M. 1947, sec. 93-5505, the only way that an additional period of time can be extended is by “affidavit showing the necessity”. When the district court, by its order, used’ the term ‘ ‘ application, ’ ’ it showed that the court was proceeding according to statute and acting upon a showing made. "We will not presume that the lower court acted in violation of the applicable statute in the absence of a showing to the contrary. Here the showing is that an affidavit of necessity had been, in fact, timely filed in the district court. No objection was raised to the settlement of the bill of exceptions in the lower court. In the O’Donnell Case, objections were raised in the lower court and the fact there was that no affidavit had ever been filed as provided by statute.
We are inclined to encourage the hearing of cases on their merits and to discourage the disposition of cases on technical interpretations which do not affect any substantial right. The record here was sufficient for this court to assume jurisdiction and respondent’s application to strike the bill of exceptions is denied.
Appellants point out that the complaint was in the usual form. First: That plaintiffs be adjudged owners of the property. Second: That the defendant be adjudged to have no right or interest in the property. Third: That defendant be forever debarred from asserting any claim in or to the property, etc.
Appellants at the trial introduced an abstract of title to the property, which abstract showed: (1) That Herman 0. Erdmann and Minnie Erdmann, his wife, were granted the property on March 3, 1947; (2) that Herman 0. Erdmann granted the property by quitclaim deed to Minnie Erdmann on January 7, 1948.
Appellant Herman Erdmann claims that the quitclaim deed to Minnie Erdmann, who was his wife at the time of conveyance, should have been cancelled in view of the fiduciary relationship of husband and wife, because the consideration for the conveyance was the promise of the grantee to keep the house for him and never put him out, and that the consideration failed when Minnie Erdmann rented out the premises. The evidence shows too that the parties later were divorced. The answer of respondent denies that appellant has any interest in the property and this is tantamount to an allegation that respondent did not hold the home for him.
The record discloses that plaintiff Marvin C. Erdmann had no interest in the property in question and the dismissal of the action, as to him, was clearly right.
It can be concluded from the testimony of Herman Erdmann that part, if not most, of the money paid for the original purchase of the property was his.
A real estate agent, who apparently was the only third person familiar with the transaction, prepared the deed from Herman Erdmann to Minnie Erdmann, and there is evidence to the effect that the same real estate agent advised Herman Erdmann that he could obtain old age assistance if he deeded the property to his wife. No money was paid to Herman Erdmann at the time the deed was given and so far as the record shows the consideration for the deed is the promise of the grantee to keep the home for him.
No effort was made by plaintiffs to show whether any other consideration had, in fact, passed from the grantee to the grantor at the time the deed was made and delivered, but the fact that Herman Erdmann said he would never have signed the deed if he had known his wife would later put him out of the house is sufficient to show that- that was the consideration which he thought he was to get for the deed.
Neither Minnie Erdmann nor the real estate agent were called as witnesses to refute the testimony given by Herman Erdmann.
A credible witness is one whose statements are within reason and believable and the evidence of one witness is sufficient to establish a fact. Whitney v. Bertoglio Mercantile Co., 65 Mont. 358, 211 Pac. 323.
In the instant case the evidence submitted to the lower court shows that sometime after the transfer of the property was made, the usual relationship of husband and wife was no longer apparent and the relationship ended in divorce.
Herman Erdmann, who was without the benefit of education and had little, if any, understanding of a so-called quitclaim deed, was asked at different stages of his examination the following questions and gave the following answers:
“Q. Where was the deed made out? A. At Mrs. Bloomstrom’s.
“Q. Who was present at the time the deed was made out? A. Me and my wife and her.
‘ ‘ Q. Can you tell the court what led up to the signing of that deed? A. Yes. Well, the taxes came due and this was a joint account that she or that we had and—
“Q. Just a minute. What do you mean by a joint account? A. That property. That property we had.
“Q. You mean it stood in both of your names? A. Yes.
“Q. Go ahead. A. Well, the taxes came due and I had only $30.00 — $31.00 to pay for taxes and that was about half what the taxes was and I asked her to help me for the taxes and she said, ‘No.’ I said, ‘Minnie, we will lose the place if we can’t pay the taxes — we will lose our home.’ She said, ‘I won’t.’ It kept on for awhile — two weeks — and then she said, ‘If you turn it over to me, if you sign it over to me I will hold the home. ’ Well, I was tied, I couldn’t hold it. I would like to keep the house so we went down to Mrs. Bloomstrom’s and I went along and that is where we made it.
“Q. Was there any conversation at Mrs. Bloomstrom’s office between you and your wife and Mrs. Bloomstrom? A. Yes. * * *
“Q. Did Mrs. Erdmann say anything to you at that time? A. Yes.
‘ ‘ Q. What did she say ? A. She said she would hold the home. I asked her, ‘Why, you can put me out.’ She said, ‘I will never do it. ’ That is what she said.
“Q. Mr. Erdmann, would you have signed the deed if you had known that your wife would later put you out of the house ? A. No.”
In the case of De Atley v. Streit, 81 Mont. 382, 263 Pac. 967, 969, this court said: “Examination of a large number of cases discloses that the courts in this country, with a few exceptions, regard contracts of the character set out in the complaint, en tered into between parties who occupy fiduciary relations toward each other, such as husband and wife or parent and child, in which the grantee agrees to furnish maintenance and support to the grantor as the consideration for the conveyance of all or a major portion of his property, as being in a class by themselves.” Emphasis ours.
Generally speaking, the cases have arisen where elderly people have turned over their property in consideration of support and maintenance during the remainder of their lives. However, the underlying reasons for the relief granted in those cases are basically the same as in the instant case.
In the granting of a deed by a husband, well along in years, to his wife, for a consideration as herein set out, there is a confidence reposed by one toward the other, sacred in its nature, a breach of which no court should tolerate upon technical rules. Transactions of this kind are classed by themselves and enforced without reference to the writing by which they are expressed. De Atley v. Streit, supra.
A court of equity will closely scrutinize all transactions between a husband and wife to the end that injustice and oppression may not result. 41 C. J. S., Husband & Wife, see. 120, page 594.
In the instant case the plaintiff Herman Erdmann attempted to explain that his marriage, after 43 or 44 years, reached a point where it was not going so good and was stopped by the court. ‘ ‘ Q. How long ago, if you know, was that relationship changed ? A. Well, it ain\been going so good for the last — The Court: No, No!” Herman Erdmann was asked the following question: ‘' Q. What was your understanding when you signed this deed 1 ’ ’ The lower court refused the plaintiff the right to answer the question.
It is the judgment of this court that the district judge did not allow the plaintiff Herman Erdmann the latitude of explanation required in equity eases and thereby failed to scrutinize all the transactions prior to and after the deed was made. The relationship of husband and wife is regarded as of a con fidential nature. If there is any misrepresentation or any concealment of material facts, or any just suspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void and as far as possible restore the parties to their original rights. 26 Am. Jur., Husband & Wife, sec. 268, p. 876.
We. are not satisfied that the plaintiff Herman Erdmann made out a prima facie ease in the record presented here, but because of the limits of inquiry placed upon him and his counsel by the district judge, there is grave doubt that substantial justice will result from the judgment of the court below. Counsel for the plaintiff, at the close of his ease, pointed out: “We once again are attempting to get this evidence in to show the intention at the time of the execution of the deed.”
Under the powers and duties of this court as prescribed by R. C. M. 1947, see. 93-216, the judgment of the lower court is reversed with directions that further proceedings be had which are consistent with this opinion.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANGSTMAN, concur.
|
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
Kristina Hanson, a niece of decedent Berger O. Mebust, appeals from an order of the District Court for the Twelfth Judicial District, Hill County, concerning distribution of Mebust’s estate. We affirm.
The issue is: How does representation occur under Montana law when the only surviving heirs of an intestate decedent are the children and grandchildren of predeceased brothers and sisters?
Berger O. Mebust died intestate in February 1991. He left no surviving spouse or parents and had no children. He had three brothers, Pete, Hans, and Einar, and one sister, Lillian, all of whom predeceased him.
Pete had two children, both of whom are deceased, one leaving three children who survive and another leaving four children who survive. Hans had three children, all of whom survive. Einar had one child who survives. Lillian had five children, four of whom survive and one who is survived by a child.
In October 1991, the District Court entered an order indicating its intent to divide the estate into eleven equal shares, one for each of Mebust’s nieces and nephews. It further indicated its intent to distribute a one-eleventh share to each of the eight surviving nieces and nephews and to divide the one-eleventh share of each of the three deceased nieces and nephews among his or her surviving children. The court allowed any interested person to argue why a different distribution should be made.
Four of the heirs, including appellant Kristina Hanson, petitioned the court to divide the estate into four equal shares, one for each of Mebust’s brothers and sister, and to distribute the estate to the issue of such deceased sibling based on such sibling’s one-fourth share. Under that scheme of distribution, Hanson, as the only child of Einar, would receive a one-fourth, rather than a one-eleventh, share of the estate.
After considering the arguments, the District Court reaffirmed its decision that under Montana’s statutes, the distributable estate should be divided into eleven shares. The court certified its decision pursuant to Rule 54(b), M.R.Civ.R, to allow for immediate appeal to this Court.
Section 72-2-203, MCA, the applicable intestate succession statute, provides:
The part of the intestate estate not passing to the surviving spouse under 72-2-202, or the entire intestate estate if there is no surviving spouse, passes as follows:
(3) if there is no surviving issue or parent, to the brothers and sisters and the children or grandchildren of any deceased brother or sister, by representation;
(4) if there is no surviving issue, parent, brother, sister, or children or grandchildren of a deceased brother or sister, to the next of kin in equal degree, except that where there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearer ancestors must be preferred to those claiming through an ancestor more remote.
The District Court ruled that subsection (3) applies in this case. Hanson argues that both subsection (3) and subsection (4) apply.
Hanson supports her interpretation with an argument concerning the legislative intent and history of Section 72-2-203, MCA. However, Montana has long recognized that where the language of a statute is clear and unambiguous, other rules of statutory construction do not apply. See, e.g., State ex rel. Swart v. Casne (1977), 172 Mont. 302, 307, 564 P.2d 983, 985-86.
By its clear and unambiguous terms, subsection (4) of Section 72-2-203, MCA, applies only if there are no surviving “issue, parent, brother, sister, or children or grandchildren of a deceased brother or sister.” In this case, as the District Cotut pointed out, there are surviving children and grandchildren of Mebust’s deceased brothers and sister. Therefore, we conclude the District Court was correct in applying only subsection (3).
The District Court applied the definition of “representation” provided at Section 72-2-204, MCA:
If representation is called for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner.
Hanson claims the specific provisions of subsections (3) and (4) of Section 72-2-203, MCA, override the above definition of “representation.” Relying on her argument concerning legislative intent, she asserts those provisions declare that the children or grandchildren of any deceased brother or sister will take the share their parent would have taken had the parent survived the decedent.
We have stated that clear statutory language controls over other rules of statutory construction and that subsection (4) does not apply in this case. Subsection (3) does not define “by representation,” but the clear language of Section 72-2-204, MCA, does, and applies wherever “representation is called for by this code.” Hanson’s argument therefore fails.
Applying Section 72-2-204, MCA, to this case, the nearest degree of kinship in which there are surviving heirs is that including Mebust’s nieces and nephews. Therefore, we hold that the District Court was correct in dividing the estate into equal shares for the nieces and nephews and, where the niece or nephew predeceased Mebust, dividing that person’s share among his or her issue.
Affirmed.
JUSTICES HUNT, TRIEWEILER, McDONOUGH and WEBER concur.
|
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JUSTICE WEBER
delivered the Opinion of the Court.
After a hearing, the District Court for the Eleventh Judicial District, Flathead County, modified the original decree of dissolution and ordered that the amount of child support owing to Debbe A. Glidden (Ms. Glidden) by Jerry Howard (Mr. Howard) be increased from $300 per month to $1,172.50 per month, retroactive to December 1, 1990. He appeals. We affirm in part and reverse in part.
The issues for our consideration are:
1. Did the District Court err in increasing Mr. Howard’s child support obligation from $300 per month to $1,172.50 per month?
2. Did the District Court err in failing to deduct support payments allegedly made by Mr. Howard to his mother in arriving at the correct modified child support obligation?
3. Did the District Court err in modifying Mr. Howard’s child support obligation effective December, 1990?
4. Did the District Court err in granting Ms. Glidden attorney fees?
Jerry and Debbe Howard were divorced on August 9, 1982, pursuant to a decree of dissolution entered by the Eleventh Judicial District Court, Flathead County, Montana. In accordance with the terms of a custody and property settlement agreement, Ms. Glidden was awarded custody of the parties’ two minor children, and Mr. Howard was ordered to pay a total amount of $300 per month in child support.
In December of 1990, when both parties were residing in the State of Washington, Mr. Howard received a letter from Ms. Glidden’s counsel requesting child support modification. On February 12,1991, Ms. Glidden filed a petition in a superior court of the State of Washington for modification of child support. Copies of the petition and summons were served on Mr. Howard’s current spouse at his home in Washington on February 17, 1991. Mr. Howard challenged the petition on jurisdictional grounds and the motion was ultimately dismissed for insufficiency of process.
Subsequently, Ms. Glidden filed a motion to modify child support in the Flathead County District Court on August 15,1991. Again Mr. Howard challenged the petition on jurisdictional grounds. The District Court denied his motion.
After a hearing, the District Court ordered that Mr. Howard should pay $1,172.50 per month for child support, retroactively from and including December of 1990, allowing a credit for the $300 per month which Mr. Howard had already paid. The District Court further ordered Mr. Howard to pay Ms. Glidden’s reasonable attorney fees and costs incurred as a result of bringing the motion to modify. Mr. Howard appeals.
I
Did the District Court err in increasing Mr. Howard’s child support obligation from $300 per month to $1,172.50 per month?
Mr. Howard maintains that such an enormous increase in child support payments is per se unconscionable. Ms. Glidden maintains that the District Court properly applied the Montana Child Support Regulations and Guidelines and that Mr. Howard has failed to prove otherwise.
Mr. Howard cites no authority for his argument that a substantial increase in child support is per se unconscionable. Furthermore, he does not specify any error in the District Court’s findings, only in its conclusion increasing the child support. The District Court made extensive and particular findings regarding the income of the parties and their respective child support obligations. Absent a clear abuse of discretion, the District Court will not be overruled. Marriage of Graveley (1990), 244 Mont. 137, 139, 796 P.2d 585, 586.
We conclude the District Court did not abuse its discretion. We hold that the court did not err in increasing Mr. Howard’s child support obligation from $300 per month to $1,172.50 per month.
II
Did the District Court err in failing to deduct support payments allegedly made by Mr. Howard to his mother in arriving at the correct modified child support obligation?
The District Court found:
15. Petitioner claims he should be allowed to deduct, for child support purposes, $15,148.58 he pays annually for the Kalispell residence, a vehicle, insurance, and approximately $225.00 per month to his mother for her support. The Regulations do not provide for such a deduction.
Mr. Howard maintains he is bound by law to provide for his indigent mother, citing Sec. 40-6-301, MCA, as authority. It provides:
Duty of child to support indigent parents. It is hereby declared and made the duty of every adult child, having the ability so to do, to furnish and provide necessary food, clothing, shelter, and medical attendance for his indigent parent or parents, unless, in the judgment of the court or jury, he is excused therefrom by reason of intemperance, indolence, immorality, or profligacy of such parent.
The record contains no evidence that Mr. Howard’s mother is indigent. Absent such proof, the District Court is not bound to consider the support of his mother as a legal duty which might be considered as an expense in calculating child support. We hold the District Court correctly refused to deduct support payments Mr. Howard made to his mother in arriving at the modified child support obligation.
Ill
Did the District Court err in modifying Mr. Howard’s child support obligation effective December, 1990?
Mr. Howard maintains the District Court erred in ordering the increased child support obligation to be retroactive to December, 1990. The court found that to be the date Mr. Howard “became aware of [Ms. Glidden’s] legal proceeding to modify the support”. Mr. Howard maintains that a child support obligation may only be made retroactive to the date the motion to modify child support was filed. We agree.
Section 40-4-208(1), MCA, provides:
[A] decree maybe modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification. (Emphasis added).
Ms. Glidden filed her motion for modification in the District Court in Montana on August 15,1991, and Mr. Howard was properly served. The District Court concluded that the notice given to Mr. Howard under the filing in the superior court in Washington, constituted notice under the statute. We conclude that is not appropriate under the specific wording of the statute. We conclude that under the statute the right to the modified child support accrued on the date actual notice was given of the motion for modification in the Montana proceedings.
We conclude the District Court erred in ordering the increased child support obligation to be retroactive to December 1990. We hold that the modified child support shall be retroactive only to August 15, 1991.
IV
Did the District Court err in granting Ms. Glidden attorney fees?
The District Court ordered Mr. Howard to pay $1,978 in attorney fees as a result of her motion to modify. Mr. Howard maintains that ordering him to pay fees is a “substantial injustice”.
Ms. Glidden correctly cites Sec. 40-4-110, MCA, as authority for the court ordering Mr. Howard to pay attorney fees. We also point out that as the District Court noted in its order, Mr. Howard failed to object to the finding that Ms. Glidden should recover attorney fees or to the reasonableness of such fees. It is well settled law that a party may not raise an issue, not raised in the District Court, for the first time on appeal. We hold that the District Court did not err in granting Ms. Glidden attorney fees.
The judgment of the District Court is affirmed with the exception that an appropriate order shall be entered modifying the child support to show that it is retroactive only to August 15, 1991.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and HUNT concur.
|
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JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from the Fifth Judicial District Court, Jefferson County, order denying defendant’s motion to dismiss. We affirm. The sole issue on appeal is whether solicitation of incest is a crime in Montana.
In September, 1990, J.S. was alone in a swimming pool with defendant, her natural father. Defendant repeatedly asked J.S. to “fool around” with him. She refused because the request had a sexual connotation.
J.S. told a social worker that her father became increasingly aggressive toward her. In mid-March of 1991, he cut a peep hole in the bathroom wall so he could watch J.S. Later that month, when J.S. and her father were home alone, he again asked her if she would “fool around” with him. When she refused he asked, “Please, for me?” J.S. continued to refuse her father’s propositions. After showering on April 2,1991, J.S. discovered a video camera hidden in the bathroom. The camera was running and aimed to video tape a person in the bathroom.
Defendant admitted to law enforcement officers that he asked his daughter to fool around with him in a sexual manner. Defendant further admitted that he had placed the video camera and drilled the peep hole. He conceded he knew these actions were wrong.
The State charged the defendant, Jack Sage, with two counts of solicitation of incest in violation of §§ 45-4-101, MCA, and 45-5-507, MCA. Defendant filed a motion to dismiss, arguing that solicitation of incest is not a crime in Montana. The District Court denied the motion. On December 9,1991, defendant entered a conditional guilty plea to one count of solicitation of incest. The District Court found that defendant was in fact guilty of soliciting incest and gave him a deferred imposition of sentence. Defendant appeals contending the District Court erred in denying his motion to dismiss.
Our standard of review of a district court’s conclusions of law is plenary. We determine whether the district court’s conclusions are correct. Steer, Inc. v. Dept, of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
The policy behind the crime of solicitation is to protect people from “exposure to inducements to commit or join in the commission of crime.” State v. Bush (1981), 195 Mont. 475, 480, 636 P.2d 849, 852. Among other things, the sohcitation statute facilitates prosecution of those who formulate and cultivate criminal schemes before a completed scheme can cause injury to others. William F. Crowley, Montana Criminal Law, 607-609 (1990).
Defendant contends sohcitation of incest is not a crime in Montana. He reasons he did not intend that J.S. commit a crime, rather she was his intended incest victim. Relying on Illinois law, defendant further reasons that the crime of sohcitation applies only where a person requests another to commit a crime and not when the person solicits a victim. However, under Montana’s statute the status of the person solicited is neither an element of nor a defense to the crime of sohcitation. See § 45-4-101, MCA.
Montana adopted its sohcitation statute from the Illinois Criminal Code of 1961. When Montana adopted it, the Illinois statute read, “A person commits sohcitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” 111. Ann. Stat. ch. 38 para. 8-1 (Smith-Hurd 1989) (emphasis added). When the Montana Legislature adopted the statute in 1973 it changed the language. See § 94-4-101, RCM (1977). The legislature has not changed the statute since its enactment. The Montana version states, “A person commits the offense of sohcitation when, with the purpose that an offense be committed, he commands, encourages or facilitates the commission of that offense.” § 45-4-101, MCA, (emphasis added).
By modifying the statute, the legislature broadened the types of conduct which are criminal under the sohcitation statute. Bush, 636 P.2d at 851. In Montana, the status of the person solicited is not a part of the offense of sohcitation, rather the intent of the solicitor is the basis of the crime. Bush, 636 P.2d at 852.
Defendant completed the crime of sohcitation of incest when he asked his daughter to aid him in performing incest. A person commits incest if he knowingly has sexual contact with a descendant. § 45-5-507, MCA. Defendant purposely urged his natural daughter to have sexual relations with him. Defendant thus encouraged the commission of incest with the purpose that incest be committed. Montana’s statute requires nothing more to bring the crime of solicitation to fruition. See § 45-4-101, MCA.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, HUNT, GRAY and WEBER concur.
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JUSTICE HUNT
delivered the opinion of the Court.
Appellant Sean Dean Ogle was tried by a jury and convicted of sexual assault, a felony, pursuant to § 45-5-502, MCA (1989), in the Twentieth Judicial District Court, Lake County. Appellant appeals from this conviction. We affirm.
Appellant offers three issues for this Court to consider.
1. Was appellant denied his right to a fair trial by repeated instances of alleged prosecutorial misconduct?
2. Did the District Court err by instructing the jury that sexual assault was a lesser included offense of sexual intercourse without consent?
3. Did the District Court err by instructing the jury that “without consent” was an essential element of the offense of sexual assault?
Appellant lived in Poison with his parents across the street from K.B. and S.B. and their children, including their 13-year-old adopted daughter, J.C.B. K.B. was the pastor of a local church and appellant became active in church activities. At the same time, appellant also developed a friendship with J.C.B., who was developmentally disabled and needed special education. J.C.B. enjoyed fishing and fre quently would go fishing at the public boat docks near her home. Appellant would sometimes go with J.C.B. and play guitar while she fished.
On October 11, 1990, the family planned to attend a local high school basketball game. J.C.B. told her parents that she would rather go fishing and they agreed. At some point, appellant said that he would watch J.C.B. to ensure her safety. When her parents returned from the game, J.C.B. was at home and they did not notice anything ■unusual.
The following Saturday, S.B. was doing the weekly laundry when she found a note in the pocket of J.C.B.’s jeans. The note was addressed to appellant and was signed “your sex girlfriend.” A few days later, J.C.B.’s mother spoke with her about the note and during the conversation J.C.B. admitted to having sex with appellant. Later in the evening, J.C.B. repeated her story to her father, who then informed the Lake County Sheriff’s Office. After J.C.B. was privately interviewed by Officer Walrod, a Justice Court complaint was filed against appellant and he was arrested and taken into custody on October 17, 1990.
The next morning appellant voluntarily confessed during two taped interviews to having sexual contact with J.C.B. On the night of the arrest, he also confessed to a fellow jail inmate, Corey White. At trial, White testified that appellant said he had touched J.C.B. ■with his penis.
An information was filed in Lake County District Court charging appellant with sexual intercourse without consent, a felony, and failure to register as a sexual offender, a misdemeanor. Appellant pled guilty to the misdemeanor, with sentencing deferred until after the completion of trial on the charge of sexual intercourse without consent. A jury trial was held on January 21, 1991, and appellant was found guilty of the lesser-included offense of sexual assault, a felony.
On direct examination, the Lake County Attorney questioned J.C.B. in the following manner:
Q. We talked about what promising to tell the truth “so help you God” meant, remember?
A. (Witness nodded.)
Q. What would it mean if you lied?
A. I don’t know.
Q. Would it be a bad thing towards God?
A. Yeah.
Q. Okay. Do you love God?
A. Yeah.
Q. And you’re very — you attend church at your father’s church?
J.C.B. also testified at trial that appellant placed his penis in her vagina and rubbed his penis on her buttocks. This testimony was consistent with what J.C.B. had previously told her father, and the Lake County Undersheriff, both of whom testified at trial. At trial, the appellant denied he had any sexual contact with J.C.B.
Appellant also testified that after reading a law book provided to him on his first night in jail, he decided to confess to the lesser-included offense of sexual assault in hope of securing a deal with the interviewing undersheriff and receiving half the prison sentence possible for sexual intercourse without consent. During cross-examination, the following exchange took place between appellant and the Lake County Attorney.
Q. You’re married, are you not?
A. Yes.
Q. You have a small baby?
A. She has a baby.
Q. It’s not yours?
A. It’s not mine.
Q. But she is still married to you?
A. I’m not sure. She put in for a divorce and that’s the last I heard about it. I haven’t talked to her. She moved. Well, I had asked her for a divorce because I caught her in bed with my best friend and some other things that happened.
Q. And you don’t find her any more attractive than you found [J.C.B.], right?
A. I loved my wife a great deal.
Q. You loved [J.C.B.], too, didn’t you?
A. No.
Q. You used her and threw her away the same way you threw your wife away?
A. I never told [Corey White] anything had happened.
Q. All of those things were lies; is that right?
A. I never told Corey White I had anything to do with her. I had told Walrod what was necessary to make it through to the next day to where I could try and fight that tape because I can fight a tape and I can’t fight death.
Q. Let’s get this straight. [J.C.B.] lied, right?
A. Apparently, yes.
Q. Corey White lied?
A. Yes, and he had plenty of reason to. [Emphasis added.]
During closing argument the State made the following comments:
You have to accept his version of the facts as he testified today and reject his version of the facts as he gave it at other times. You have to find that little [J.C.B.], when she came in and testified, lied. You have to find that Corey White, who heard the confession from the defendant, lied. You would have to find that both the previous confessions of the defendant on tape are lies.
Today one of the worst lies I would suggest you may have heard is when he said he didn’t find her desirable.
During the settling of jury instructions, the prosecution requested that certain instructions be given on sexual assault. Defense counsel objected to the giving of the instructions without explanation. The instructions on sexual assault were given over this objection.
At trial, the jury found the defendant not guilty of sexual intercourse without consent, but convicted him of the crime of sexual assault, a felony. At sentencing, the District Court found appellant to be a persistent felony offender pursuant to § 46-18-501, MCA. The court sentenced appellant to 60 years in the Montana State Prison with 20 years suspended. For purposes of this appeal, the appellant only appeals his conviction of sexual assault.
I.
Was appellant denied his right to a fair trial by repeated instances of alleged prosecutorial misconduct?
Appellant contends that the State engaged in prosecutorial misconduct by eliciting inadmissible evidence with no factual basis; characterizing witnesses as liars; using misleading and inflammatory argument; expressing personal opinions; and using the complaining witness’s religious beliefs to enhance her credibility.
Section 46-20-104(2), MCA, procedurally bars review of alleged errors not objected to at trial.
(2)Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).
§ 46-20-70l(2)(a)-(c), MCA, allows claims which are presented for the first time on appeal if the error is prejudicial to the defendant’s guilt and:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated where not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence. The record reflects that in all of the instances appellant claims
were prosecutorial misconduct, not one objection was made by defense counsel. Appellant’s claim does not fall into one of the three exceptions listed in § 46-20-701, MCA.
Appellant also alleges that not withstanding the lack of objections at trial, the prosecution’s misconduct amounted to plain error. In State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588, we stated:
The plain error doctrine provides a remedy in such situations to prevent manifest injustice. When the substantial rights of a defendant are involved, the lack of timely objection does not preclude us from exercising our power of discretionary review to examine any error at the trial court level.
Wilkins, 746 P.2d at 589. We utilize the plain error doctrine only when it is necessary to insure a fair and impartial trial. Wilkins, 746 P.2d at 589. The plain error doctrine is used sparingly and should not be relied upon by counsel. Wilkins, 746 P.2d at 589. The record does not contain any error not objected to that demonstrates an infringement of the substantial rights of appellant that persuades us to exercise our discretionary review. We hold that appellant was not denied his right to a fair trial.
II.
Did the District Court err by instructing the jury that sexual assault was a lesser included offense of sexual intercourse without consent?
At the settlement conference for jury instructions, the State proposed a series of instructions which sought to include sexual assault as a lesser included offense of sexual intercourse. The record reflects that defense counsel objected to the giving of the lesser included instruction but did not specifically state his reasons for the objections. Over defense counsel objections, the District Court gave the State’s lesser included instructions as Court Instructions No. 11 through No. 15.
Section 46-16-401(4)(b), MCA (1989), requires that counsel has a duty to specify the grounds upon which a jury instruction objection is based. The statute provides in relevant part:
On such settlement of instructions, the respective counsel or the parties shall specify and state the particular ground on which an instruction is objected to. It shall not be sufficient to object generally that the instruction does not state the law or is against the law, but the objection must specify particularly wherein the instruction is insufficient or does not state the law or what particular clause therein is objected to.
In absence of a proper objection, the lesser-included offense issue was not preserved for appeal in accordance with § 46-20-701(2), MCA. Without discussing whether § 45-5-502, MCA (1989), is a lesser-included offense of § 45-5-503, MCA (1989), we hold that appellant waived his objection for the pin-pose of this appeal.
III.
Did the District Court err by instructing the jury that “without consent” was an essential element of the offense of sexual assault?
In Instruction No. 12, the District Court stated that an element of sexual assault is that the sexual contact was without the consent of J.C.B. It has long been the rule in Montana that “without consent” is not an element of sexual assault where the victim is less than 14 years old and the offender is three or more years older than the victim. State v. Price (1980), 191 Mont. 1, 622 P.2d 160; State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339; State v. SorLokken (1991), 247 Mont. 343, 805 P.2d 1367; § 45-5-502, MCA (1989). J.C.B. was 13 years old and appellant was 25 years old at the time of the offense. The court also gave Instruction No. 14 which stated that:
Consent is ineffective, under the offense of Sexual Assault, if the victim is less than 14 years old and the offender is 3 or more years older than the victim.
Instruction No. 12 added an extra element for the State to prove beyond a reasonable doubt. Thus, the giving of the erroneous instruction did not prejudice the appellant.
In addition, appellant failed to object to this instruction on the grounds stated for in this appeal. Defense counsel objected to Instruc tion No. 12 on the grounds that it addressed the lesser-included offense. The giving of Instruction No. 14 cured any possible error by the erroneous instruction. We hold that the District Court did not error in giving Instruction No. 12.
We affirm.
JUSTICES HARRISON, TRIEWEILER, McDONOUGH and WEBER concur.
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] |
JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the Seventeenth Judicial District, Valley County, the Honorable Leonard Langen presiding. The matter was tried without a jury and the appellant David C. Mogan (Mogan) appeals from the order and judgment. We affirm.
The issues presented for review are:
1. Whether the District Court erred when it struck out Mogan’s counterclaim and third party complaint and prevented Mogan from seeking relief thereon.
2. Whether the District Court erred when it awarded $5,198.99 pursuant to Rule 37(c), M.R.Civ.P., for the purported failure of Mogan to admit the genuineness of certain documents submitted by respondent Credit Associates, Inc.
The dispute herein lies in Mogan’s failure to pay certain charges made on credit cards that he obtained from two companies: the Sinclair Oil Company and Tandy Credit/Radio Shack. These cards were used to charge merchandise in the amount of $1,402.57 (Sinclair) and $5,102.86 (Tandy). No payment was made on either balance. These amounts were subsequently assigned to Credit Associates, Inc. for collection and this action was filed.
Thereafter, Mogan filed a motion to vacate service of process on the grounds that the sheriff failed to exhibit the original summons to Mogan personally and instead served him with a copy of the summons. Mogan failed to pay the required $40 filing fee, but the court clerk filed his motion without it. Electing not to strike the motion, as he was authorized to do, Judge Langen entered the following order on December 20,1989:
1. The Defendant’s Motion to Vacate Service is denied.
2. The Defendant shall pay the $40.00 filing fee.
3. The Defendant has 10 days within which to serve and file his Answer.
4. The Clerk of Court is ordered to accept no further papers from this Defendant, or for that matter from any party, without payment of filing fees as required under Section 25-10-403, MCA.
The court found Mogan’s Motion to Vacate Service “totally without merit” because Rule 4D(2), M.R.Civ.R, requires only that “a copy of the summons and of the complaint” be delivered to the defendant. The court reduced the time for filing an Answer from twenty days to ten as “a small penalty for this Defendant trying to escape the entry of a Default by nonpayment of the filing fee and through filing of a spurious pleading.”
On March 14, 1990, Mogan filed a “Motion to Reconsider and Memorandum in Support Thereof Concerning Defendant’s Motion to Vacate Service” and a “Motion for Reconsideration of Order dated 12-20-89 and Request for Oral Argument.” On July 2, 1991, Judge Langen responded in a “Memorandum Opinion and Order” from which we quote:
This is really a very simple case.... Credit Associates, Inc., Plaintiff [Respondent] has attempted to collect the sum of $6,743.36 from Mogan. Instead of complying with my order of December 20,1989, and filing his Answer, [Mogan] has barraged the Clerk of Court with a barrage of so-called legal documents, which included a Motion to Reconsider, a Motion for Oral Argument, a Motion for Partial Summary Judgment, and a few others .... Accompanying these Motions are so-called Briefs. In none of these Briefs does Mogan deny that he owes the amount. [Emphasis added.]
Judge Langen went on to say that he did not intend to spend any more time reviewing the “irrelevant, foolish and trivial pleadings” that Mogan had filed in this case, and that “either Mogan owes the $6,743.36 prayed for in the [Credit Associates’] Complaint, or he owes part of it, or he doesn’t owe any part of it.” The court then set the matter for a non-jury trial and ordered Mogan to file his answer in ten days or a default judgment would result. A copy of Judge Langen’s July 2, 1991 Order is attached as an Appendix to this Opinion.
On July 12,1991, Mogan filed an Answer, Counterclaim and Third Party Complaint, along with a demand for a jury trial (withdrawn by Mogan in December 1991). In his order dated September 3, 1991, setting the case for jury trial on October 25,1991, Judge Langen noted that Mogan had disobeyed his previous order by filing a counterclaim and third party complaint, raising “the same frivolous issues” referred to in the court’s Memorandum Opinion and Order of July 2, 1991. The September 3, 1991 Order also stated that “the attempt of the Defendant to raise these additional frivolous issues contrary to the Court’s Order dated July 2nd, shall subject the Defendant to Rule 11 Sanctions.”
The September 3, 1991 order struck Mogan’s counterclaim and third party complaint and limited the issues to be tried by jury as follows:
[Mogan’s] Answer constitutes a general denial of the Plaintiff’s Complaint and shall remain as a pleading. The Complaint and Answer frame the issues to be tried before the jury. No other issues shall be submitted to the jury. [Emphasis added.]
After numerous other actions filed by Mogan, including a demand for a twelve-person jury, which was denied pursuant to Section 3-15-106, MCA, and an unsuccessful attempt to disqualify or substitute the district judge, the matter was finally tried to the court sitting without a jury on December 19,1991, where Mogan appeared pro se. The court heard testimony and examined the proof offered by the respective parties. It found that Mogan owed Tandy/Radio Shack $5,072.85 and Sinclair Oil Corporation $1,402.57, plus interest computed from April 18, 1989 on both accounts, and that these claims had been assigned to Credit Associates, Inc. Finding that Credit Associates was entitled to a reasonable attorney’s fees under the terms of the credit card agreements and to attorney’s fees and expenses pursuant to Rule 37(c), M.R.Civ.P, the court directed that judgment be entered in favor of Credit Associates, Inc. in the amount of $13,181.78. This total includes $2,858.43 for attorney’s fees and attorney’s expenses; $2,040.56 for witness expenses, and $139.40 for costs and fees. The court reduced attorney’s fees by $300 because some of the copies of charge slips sent to Mogan were illegible.
We affirm this judgment and conclude that the District Court properly denied the counterclaim and third-party complaint because they were frivolous. Because Mogan failed to admit the genuineness of the documents supporting Credit Associates’ claims, which were later proved genuine, we also hold that the court properly awarded attorney’s fees and witness expenses pursuant to Rule 37(c).
CHIEF JUSTICE TURNAGE, JUSTICES WEBER and McDonough concur.
APPENDIX TO NO. 92-100
MONTANA SEVENTEENTH JUDICIAL DISTRICT COURT, VALLEY COUNTY
Valley County
Cause No. 16826
CREDIT ASSOCIATES, INC. Plaintiff, v. David C. Mogan, Defendant
DAVID C. MOGAN, Third Party Plaintiff, v. SINCLAIR OIL CO., COLLECTION CENTER OF WYOMING; CREDIT ASSOCIATES, INC., of GREAT FALLS; TANDY CREDIT/RADIO SHACK; LARSEN & NEILL and DIRK LARSEN, Third Party Defendants.
MEMORANDUM OPINION AND ORDER
On July 1, 1991,1 spent several hours reviewing this file.
The last time I had completely reviewed this file was on December 20,1989. On that date I prepared a Memorandum Opinion and Order Denying Mogan’s Motion to Vacate Service of Process.
This Memorandum Opinion was prepared in connection with Mogan’s “SPECIAL MOTION TO VACATE SERVICE AND MEMORANDUM IN SUPPORT THEREOF.” Mogan had argued that I should make a Court Order vacating the service of process upon him on the grounds that the Sheriff had failed to personally exhibit to Mogan the original Summons, and instead had only served him with a copy of the Summons.
I denied this Motion, and Ordered as follows:
(1) Defendant’s Motion to Vacate Service is denied.
(2) Defendant shall pay his $40.00 filing fee forthwith.
(3) The Defendant has 10 days within which to serve and file his answer.
(4) The Clerk of this Court is Ordered to accept no further papers from the Defendant, or for that matter from any party, without the paying of filing fees as required under Sec. 25-10-403, M.C.A..
APPENDIX (Cont.)
This is really a very simple case. In this case, the Credit Associates, Inc., Plaintiff, has attempted to collect the sum of about $6,743.36 from Mogan.
Instead of complying with my Order of December 20, 1989, and filing his Answer, Defendant has barraged the Clerk of court with a barrage of so-called legal documents, which include a Motion to Reconsider, a Motion for Oral Argument, a Motion for partial Summary Judgment, and a few others that I can’t remember.
Accompanying this Motions are so-called Briefs. In none of these Briefs does Mogan deny that he owes the amount.
Instead, Defendant has long arguments claiming that the Plaintiff violated 15 U.S.C., Sec. 1692 (e) 9. He quotes from an ABA Decision, C-735/Informal Ethics Opinions (ABA) 323 (1975).
He wants me to take judicial notice of the fact that the Plaintiff’s Complaint was prepared by a “lay person” who was not authorized to practice law, and that this has been specifically prohibited by enactments of the Congress of the United States.
He goes into some detail about the legislative history of F.D.C.P.A., which was signed at a White House Ceremony on September 20,1977, and became law on March 20, 1978.
Mogan points out that Congressman Annunzio sheparded the original bill and its successors through several redrafts and through years of debate and negotiation.
This Defendant, David Mogan, is not new to the Montana Seventeenth Judicial District Court. Defendant has filed numerous lawsuits in the counties making up the Seventeenth Judicial District. Generally, he appears Pro Se.
His pleadings generally follow an established modus operandi consisting mainly of filing a barrage of irrelevant pleadings which can totally engulf the Court system. If the presiding Judge were to attempt to read all of these documents and attempt to answer them, it would engulf the system.
Most of Mogan’s cases are not of great consequence, and in the ordinary course of business, the above-entitled case should be handled quite quickly.
However, this is impossible in any case involving David Mogan. Judge Thomas, who has a very patient, kindly disposition, finally had enough. He placed Mogan in jail for more than a week in order to convince Mogan to stop his dilatory methods.
APPENDIX (Cont.)
Only time will tell whether Judge Thomas’ use of jail has induced Mogan to improve his conduct before this Court.
I have just spent several hours reviewing the above captioned case file - time which I should have been spending on other more important cases which are terribly delinquent because of my inability to find the time to handle them.
I do not intent to spend any more time on this case in the review of such irrelevant, foolish and trivial pleadings as Mogan has filed in this lawsuit.
When I reviewed this file on December 20,1989,1 anticipated that this file could conceivably triple in volume if I failed to take some action. I could have applied money sanctions on the Rule 11, M.R.C.P., or possibly found reason to use jail incarceration under the Contempt power of the Court. Instead, I exercised a simple procedure.
I told the Clerk not to file any more of Mogan’s documents in this file. She has been instructed to keep them in a separate file folder, unfiled, and labeled as Civil File No. 16826CR. I leave it to your imagination as to the origin of the letter CR.
This is a simple case. Either Defendant Mogan owes the $6,743.36 prayed for in Plaintiff’s Complaint, or he owes part of it, or he doesn’t owe any part of it.
I think we can solve this issue very simply.
THEREFORE IT IS ORDERED as follows:
(1) Defendant has 10 days within which to file his Answer, which shall admit or deny that he owes the sum or sums alleged in Plaintiff’s Complaint.
(2) If Mogan fails to file an Answer within this time, I shall Order that Defendant’s Default be entered.
(3) That this case be set for trial before the Court, without a jury, to commence at 9:00 A.M. on Tuesday, the 13th day of August, 1991, in the Courtroom of the Valley County Courthouse at Glasgow, Montana.
DATED this 2nd day of July, 1991.
/s/ Leonard H. Langen
Judge of the District Court
|
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] |
JUSTICE HUNT
delivered the opinion of the Court.
Appellant Cindy R. Johnston appeals from the Findings of Fact, Conclusions of Law and Order, and Decree of Dissolution of the Ninth Judicial District Court, Pondera County.
We affirm in part and remand.
Appellant raises five issues for this Court to consider:
1. Did the District Corut err in its enforcement of the premarital agreement when dividing the marital estate?
2. Did the District Court err in the calculation of child support?
3. Did the District Court err in failing to implement its order for a psychological exam of respondent?
4. Did the District Court err in failing to appoint an attorney to represent the children?
5. Did the District Court err in awarding joint physical custody?
6. Did the District Court err in failing to award appellant attorney fees?
Respondent Fausto Turrin, a licensed attorney of this state, has provided this Court with 29 issues to consider. We conclude that with the exception of the constitutional issues raised by Fausto, the various issues raised in his brief are essentially the same as those raised by Cindy. Accordingly, we shall only address those issues raised in Cindy’s brief and make references to Fausto’s brief when appropriate. At the outset, we hold that Fausto has either failed to properly raise the constitutional issues stated in his brief, the issues are now moot, or are without merit, and therefore, we will not discuss these issues.
The parties were married on May 5,1985, in Great Falls. Two days before the wedding the parties entered into a premarital agreement. Two minor children were born into the marriage, Fausto John Turrin, III, age five, and Melissa Kay Turrin, age three. Cindy works as a computer programmer/supervisor for a CPA firm in Great Falls, and Fausto is a practicing attorney.
On August 8, 1989, Cindy filed a petition for dissolution. Fausto was represented by an attorney and acted as co-counsel, drafting many of his own documents and appearing alone in most of the hearings. On September 18, 1989, the court awarded Cindy temporary custody of the minor children with visitation to be worked out by the parties. On March 6, 1990, the parties stipulated to visitation of the children by Fausto but the agreement failed to work in practice. The court ordered mediation in an effort to avoid litigation, but that effort also met with failure. Following a bench trial, the court entered its findings of fact, conclusions of law, and decree on May 16, 1991. On May 30, 1991, Cindy filed a motion to amend the court’s decree. On July 8, 1991, a hearing was held on the motion, which the court orally denied, with the exception of redetermining monthly child support and back child support payments. On July 26, 1991, Cindy filed her notice of appeal. On August 12, 1991, Fausto filed his notice of cross-appeal.
Unfortunately, like so many other domestic relations cases that come before this Court, this is rife with bitterness between the parties. The District Court file contains approximately 360 documents mainly comprised of motions and countermotions. Since the appeal, the parties have filed 18 motions with this Court. It is under these conditions that we render this opinion.
I.
Did the District Court err in its enforcement of the premarital agreement when dividing the marital estate?
The parties executed a premarital agreement on May 3,1985, two days prior to their wedding. In its order, the District Court found that the premarital agreement was valid and enforceable. The court then proceeded to divide the marital estate according to the agreement. On appeal, Cindy does not challenge the validity of the agreement. Instead, she alleges that the District Court erred in failing to acknow ledge that the terms of the agreement were not implemented because Fausto did not contribute to the parties’joint checking account which would be used to pay the bills, and therefore, a more equitable distribution of the marital estate is warranted.
The parties executed the premarital agreement prior to the 1987 Legislature’s enactment of the Uniform Premarital Agreement Act. As a result, Section 40-4-202(1), MCA (1985), requires the District Court to consider the validity of the premarital agreement, but it is not required to enforce it. The premarital agreement is but a factor, not the exclusive consideration, among many listed in Section 40-4-202(1), MCA (1985), for the court to consider when distributing the property of the marital estate. In re the Marriage of Keepers (1984), 213 Mont. 291, 691 P.2d 810.
Our standard of review relating to the division of marital property was recently clarified as whether the district court’s findings of fact are clearly erroneous. In re the Marriage of Danelson (Mont. 1992), [253 MOnt. 310,] 833 P.2d 215, 49 St. Rep. 597. In its findings of fact, and conclusions of law, the District Court found that the premarital agreement was valid and chose to enforce it. Cindy’s share of the marital property amounted to $25,450 while Fausto’s share amounted to $66,120 because he was given the home and the equity in the home.
The parties’ home had a purchase price of $111,000. With the various repairs made, the current fair market value of the house was $119,000, which is supported by the record. Fausto contributed $32,000 toward the down payment from his separate funds. In addition, he paid off a second mortgage valued at $14,000 with his own funds, thereby creating an original equity in the home of $46,000. In addition, Fausto made mortgage payments totalling $12,537.
Cindy contends that she paid $23,681 in total monthly payments. Fausto states that she actually paid approximately $2000 more. In addition, she sold a boat for $5000, and her own home which had $7000 in equity. She also contended that she paid the day-to-day living expenses. However, the record reflects that she could not recall what she had done with her $12,000, or how much of the day-to-day living expenses she paid. The court concluded that it was logical that a substantial amount of Cindy’s money went toward house payments and family living expenses. Even so, it is unclear from the record who made the monthly payments and the source of the funds for the payments. The court found that the parties’ home had an equity of $63,000. Considering that Fausto contributed $46,000 of his own money toward the home, the court awarded Fausto the equity in the home.
Cindy requests that she be reimbursed for the bookkeeping she performed for Fausto’s law practice, as the terms of the premarital agreement stated that any money earned by either party should be kept separate. However, Fausto performed legal services for Cindy’s rentals. The District Court refused to reimburse Cindy, concluding that the legal services provided by Fausto equalled Cindy’s bookkeeping services. We hold that there was substantial evidence in the record to support the District Court’s determination.
Cindy also objects to the court’s valuation of the 1979 Datsun 280-ZX and the 1976 Ford pickup. She testified that the fair market value of the Datsun was only $1900, and the value of the Ford pickup was $1500. Fausto offered into evidence an independent fair market valuation by Taylor’s Used Cars stating that the Datsun’s fair market value was $2650, and the Ford’s was $2850. This was the valuation the court used in dividing the property. We hold there was substantial evidence to support the District Court’s valuation of the two vehicles.
Finally, Cindy requests that this Court modify the District Court’s decree and order Fausto to return “baby books” to her and reimburse her for half of the living expenses paid for support of the family. We decline to do so. We hold that there is substantial evidence to support the District Court distribution of the marital property.
II.
Did the District Court err in the calculation of child support?
In reviewing child support, this Court has stated that a presumption exists in favor of the district court’s determination, and this Court will reverse the district court only if it has abused its discretion. In re the Marriage of Sacry (Mont. 1992), [253 Mont. 378,] 49 St. Rep. 452, 833 P.2d 1035.
Ahearing was held on August 28,1989, pertaining to temporary child custody. The court awarded Cindy temporary custody until a final determination was made. The court held a hearing on a motion to amend the final judgment on July 8,1991. In the motion to amend, Cindy requested that the District Court grant back child support payments on the basis of sole custody and not split custody as provided in the decree. During that hearing, the court orally agreed to award back child support on the basis of sole custody. However, there is no written order issued by the District Court to reflect that decision. Cindy filed her notice of appeal on July 25, 1991. We conclude that the District Court properly should have entered a written order awarding back child support covering the period of sole custody by Cindy.
Another issue raised by Cindy is at what point in the dissolution process do the modified SRS Child Support Guidelines come into effect. Apparently, from the time the parties submitted their proposed child support calculations to the issuance of the decree, the Guidelines were amended and the decree does not reflect these changes. Cindy offers no authority, but argues that the Guidelines came into effect on the date of the order. Therefore, the District Court should use the most recent Guidelines before issuing its order.
A district court is granted considerable discretion in calculating child support, and it may deviate from the Guidelines if it finds by clear and convincing evidence that the application of the standards and Guidelines is unjust to the child or any of the parties, or is inappropriate to a particular case. Section 40-4-204(3)(a), MCA. If a court decides to apply an older version of the Guidelines, then it must state its reasons for finding that the amended SRS guidelines are not applicable. Section 40-4-204(3)(b), MCA.
At the hearing on the motion to amend the final judgment on July 8, 1991, the court requested that Fausto supply the new proposed Guidelines so that it could amend child support. On July 12, 1991, Fausto then filed a motion for consideration of all of the Guidelines, alleging that Cindy was living with another man who contributed substantially to the support of the children. Cindy denied this in her brief in opposition. The issue was never decided because Cindy filed an appeal on July 25,1991, based on the court’s May 16,1991, decree. We remand for a redetermination of child support by the District Court in accordance with Section 40-4-204(3), MCA, as most recently amended. Cindy has raised several other specific errors relating to the calculation of child support. Because of our holding above, she may bring these errors to the attention of the District Court.
III.
Did the District Court err in failing to implement its order for a psychological exam of Fausto?
On January 30, 1991, Cindy moved for the District Court to order a psychological evaluation of Fausto, due to the deterioration of the visitation between him and the children. The court considered the matter at a March 18, 1991, hearing. Dr. George Hossack, a licensed psychologist and Cindy’s counselor, recommended a psychological evaluation at the hearing. The court orally agreed with Dr. Hossack’s recommendation but did not require psychological evaluations in its final order. On July 29,1991, four days after the notice of appeal was filed by Cindy, the court issued an order requiring the parents and the children to obtain psychological evaluations. There was a motion to quash this order filed by Fausto’s attorney, but the record ends at this point. Because we do not have a record before us to decide whether further psychological evaluations are required, we remand this issue to the District Court for further consideration.
IV.
Did the District Court err in awarding joint custody?
Our standard of review in child custody matters is whether the district court abused its discretion. In re the Marriage of Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159. When determining child custody, the district court must take into consideration the best interests of the children. Section 40-4-212, MCA. The court shall consider, but is not limited to, the factors set out in Section 40-4-212(a)-(g), MCA. Here, the court awarded Cindy and Fausto joint physical custody. Fausto had physical custody of the children during the first six months of the year and Cindy had custody the last six months of the year. The court stated in its findings that both parties were in sufficient physical and emotional health to care for the children. In the transcripts, the court explained that it was awarding joint physical custody primarily because Cindy would be required to work long hours during the tax season. The court was very cognizant of the bitterness between the parties and reserved the right to have the children examined by a proper expert to see if the children were harmed by the custody provisions which, from viewing the record on appeal, the court is now attempting to do. Therefore, we hold that the District Court did not err in awarding joint physical custody.
V.
Did the District Court err in failing to appoint an attorney to represent the children?
Section 40-4-205, MCA, allows the court to appoint an attorney to represent the interests of the children with respect to support, custody, and visitation. In a recent case, we held that Section 40-4- 205, MCA, was a permissive, not a mandatory statute. In re the Marriage of Merriman (1991), 247 Mont. 491, 807 P.2d 1351. The decision to appoint an attorney to represent children in custody matters is discretionary with the court. In re the Marriage of Hammill (1987), 225 Mont. 263, 732 P.2d 403. We hold that the District Court did not abuse its discretion in refusing to appoint an attorney to represent the children.
VI.
Did the District Court err in failing to award appellant attorney fees?
Both Fausto and Cindy claim that they are entitled to attorney fees. The premarital agreement granted attorney fees to the party successfully defending the agreement. Section 40-4-110, MCA, grants the District Court the discretion to award reasonable attorney fees. Absent an abuse of discretion, this Court will not overturn the District Court’s decision denying attorney fees. In re the Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. The court found that the litigation of this matter was prolonged by both parties, however, more so by Fausto than by Cindy. The court concluded that the unnecessary attorney fees caused by each party offset each other and denied attorney fees to both parties. From our examination of the record, we concur with the court’s conclusion.
In our order dated September 24, 1991, we denied Cindy’s request to divide the cost of the transcript on appeal between the parties. We stated that responsibility for the costs of the transcript would be determined by this Court under Rule 33, M.R.Civ.P. Because Fausto has filed numerous requests to have additional transcripts filed with this Court, as well as numerous requests for extensions of time in filing his responsive brief, thereby creating significant delay in our ability to render a decision, we hereby order that costs of the transcript on appeal be equally divided between the parties.
Affirmed in part and remanded for further determination in accordance with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and WEBER concur.
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JUSTICE WEBER
delivered the Opinion of the Corut.
Plaintiff, Revo Somersille, appeals from an order by the District Court of the Eleventh Judicial District, Flathead County, granting summary judgment to defendants, Columbia Falls Aluminum Company (CFAC). We affirm in part and reverse in part.
We state the issues as follows:
1. Was the “Termination Agreement” between plaintiff and CFAC a valid enforceable agreement?
2. Was the plaintiff barred under the Termination Agreement from claiming any additional share of profits for distribution after his termination from employment?
This case arose as a wrongful discharge action brought under the provisions of the Montana Wrongful Discharge from Employment Act, Sec. 39-2-901, et seq., MCA. Plaintiff is a certified public accountant, and was the chief financial officer for CFAC. In September 1989, one year prior to the filing of the present action, CFAC furnished a proposed “Termination Agreement” to plaintiff for his consideration. During the next four weeks plaintiff reviewed such Agreement with his attorney and with his wife. He also negotiated several changes in the agreement. On September 29, 1989, he executed the revised Termination Agreement. The Termination Agreement included the following provisions:
1. Termination. Somersille’s employment with the Company will be terminated effective September 30, 1989.
2. Compensation. Somersille shall be entitled to receive as severance pay:
(1) his present salary through June 30, 1990; such salary to be paid in three equal installments on November 15,1989; February 15, 1990, and May 15, 1990, and
(2) an amount equal to the profit sharing distribution to which Somersille normally would be entitled under the Company’s profit sharing plan based on his employment from January 27, 1989 to September 30,1989. This profit sharing distribution will be made to Somersille at the time profit sharing distributions for 1989 are made to all employees, currently contemplated for January 1990.
3. Medical Insurance. For the eighteen months ended March 31, 1991, Somersille will be provided medical insurance under the Company’s medical insurance policy in force at the time. The cost of this insurance will be reimbursed to Somersille within two weeks of his paying the monthly premium due for such insurance. In the event Somersille obtains medical insurance under another insurance plan, the Company’s obligation to provide the aforesaid insurance will terminate upon the effective date of Somersille’s new insurance.
4. Medical Insurance for Wife. At the end of the above eighteen-month period (March 31, 1991) and without limitation as to time, the Company will provide medical insurance to Somersille’s current wife, Carmen, under the Company’s medical insurance policy in force at the time. The Company will reimburse Somersille within two weeks of his paying the monthly premiums due for each insurance up to the cost of Plan 1, High Option Major Medical $500 deductible as provided for in the medical plan in effect at the time. The Company’s obligation to provide this insurance will terminate at the time of either his wife’s death or at the effective date of new medical insurance coverage for Carmen Somersille.
7. Waiver of Claims. Both parties hereby waive and relinquish any and all claims, known and unknown, and do hereby mutually release and forever discharge one another, including all stockholders, directors and officers of the Company, from any and all actions, suits, debts, agreements, obligations, costs, expenses and other liabilities relating to Somersille’s employment relationship with the Company. The foregoing shall include, but not be limited to, any claim for past salary, wrongful termination or profit sharing.
Each party represents that it has had the opportunity to consult with an attorney, and has carefully read and understands the scope and effect of the provisions of this Agreement. Neither party has relied upon any representations or statements made by the Agreement. The parties agree that this Agreement is the result of a compromise . . .
In accordance with the Termination Agreement, plaintiff’s employment terminated September 30, 1989. CFAC paid plaintiff in excess of $48,000 as his present salary through June 30, 1990, under paragraph 2(1). In addition, on January 3,1990, CFAC paid plaintiff $49,710 as the profit sharing distribution provided for under paragraph 2(2). Plaintiff also was reimbursed $4,320 for the cost of medical insurance under paragraph 3. As a result, plaintiff received over $102,000 under the terms of the Termination Agreement, and $15,000 relocation allowance remained available if he chose to relocate by June 30, 1991.
Approximately one year after his termination in September 1989, the plaintiff filed the present action. After CFAC filed a motion for summary judgment, plaintiff filed an amended complaint, alleging wrongful discharge, fraud, breach of contract, and other common law tort and contract claims. He also alleged that CFAC had breached its obligations under the profit sharing plan with its employees, and sought losses of profit sharing to which he was entitled both before and after his termination from employment date. With regard to the waiver of all claims set forth in paragraph 7 of the Termination Agreement, plaintiff contends the waiver should be set aside because it was fraudulently induced, in violation of public policy, and unconscionable. On August 13,1991, the District Court granted defendants’ motion for summary judgment. Plaintiff appeals.
I
Was the “Termination Agreement” between plaintiff and CFAC a valid enforceable agreement?
Plaintiff maintains that the release provision in the termination agreement was procured through fraudulent misrepresentation, undue influence and is unconscionable. He maintains that defendants falsely promised and misled him so as to cause him to believe that he had previously received his proper share of profit sharing with the intent to induce him to release them from any claims. Plaintiff further maintains that defendants used the fact that his wife was seriously ill as leverage in inducing him to sign the Termination Agreement. In his affidavit, plaintiff averred:
30. Defendants took advantage of my confidence and revelation of my wife’s illness and the emotional and economic stresses of such illness by offering to continue my wife on the company health insurance coverage as described in the “Termination Agreement” if I would agree to sign such purported “Termination Agreement”.
The District Court concluded there was no evidence of mistake, undue influence, menace or fraud in the record. It stated:
Plaintiff Somersille consulted with an attorney and had discussed the agreement thoroughly with his wife before he signed it. Plaintiff had the agreement in his possession for review for almost a month. After he consulted with an attorney, he met and discussed the agreement again with company officials. He made specific proposals for inclusion in the agreement, some of which were agreed to by the company. Plaintiff insisted that the principal owner of the company sign the agreement, for additional security for himself. He discussed with his wife the consequences of signing the agreement. He was not under any other incapacity (drugs, physical duress, etc.) when he signed the agreement. He thoroughly read it and understood its terms. He was aware that in signing the agreement he was making a firm agreement to not bring the suit which he now seeks to maintain. (Emphasis added.)
With specific regard to the element of fraud, the District Court further stated:
The plaintiff in his affidavit has recited various facts which, he claims, give rise to an issue of fact over his claim that the Defendants engaged in fraud to induce him to sign the release agreement. However, it appears from his own deposition and affidavit that he was fully aware of the various incidents and occurrences, upon which he now relies to claim fraud, before he executed the release document... There is no evidence before the court which suggests that there was fraud on Defendants’ part in inducing the Plaintiff to sign the termination agreement. Any “discrepancies” or irregularities of either party were known to the Plaintiff and waived by him when he signed the termination agreement containing the release of all claims.
The District Court then concluded that the execution of the release agreement was knowing and voluntary and fully ratified by him, stating:
Again, to the extent that Plaintiff suggests that Defendants engaged in a violation of public policy in its pre-release conduct, those facts predated the signing of the release and were fully known to the Plaintiff when he consulted with legal counsel before signing the release.
The Plaintiff’s execution of the release document was knowing and voluntary, and was subsequently fully ratified by him when he accepted all of the monetary benefits of the Termination Agree ment that were still being paid to him when he brought his suit. See Constant v. Continental Tel. Co., 745 F.Supp. 1374 (D. Ill. 1990). He should not be now allowed to engage in litigation to fully explore and develop the full dimensions of the potential claims which he was releasing when he executed the termination agreement.
Defendants maintain that plaintiff’s voluntary relinquishment of all potential claims against CFAC precluded him from pursuing this action. Defendants maintain that plaintiff read and understood the terms of the Termination Agreement; thus, it is a valid and enforceable contract entered into with the free and mutual consent of the parties. Defendants contend that the Utah Supreme Court case of Horgan v. Indus. Design Corp. (Utah 1982), 657 P.2d 751, is persuasive authority here.
In Horgan, a former employee brought an action against his former employer seeking to recover additional compensation following his termination and after he had signed an agreement by which he was paid stock redemptions, profit sharing, three months’ termination pay, vacation pay, medical and health benefits, and other miscellaneous payments. The parties also signed a release precluding either party from ever asserting any employment-related claim against the other. Horgan claimed that the release was invalid because he signed it under duress as a result of the unexpected loss of his employment, thus negating the mutual assent necessary for a valid contract.
The Utah Court defined duress as “any wrongful act or threat which actually puts the victim in such fear as to compel him to act against his will”. Horgan, 657 P.2d at 753. The Court went on to state that to constitute legal duress, the defendant must have acted against his will and have had no other viable alternative. Horgan, 657 P.2d at 754. The Court further stated that the “mere fact of an improvident or bad bargain or a feeling of latent discontent is not a sufficient basis to avoid the effect of an otherwise valid release.” Horgan, 657 P.2d at 754. Thus, the Horgan Court concluded that the plaintiff did not sign the release under duress, but rather that he was someone who after signing, and upon subsequent reflection, concluded he could have received more out of the agreement. Significantly, the Horgan Court also stated that “emotional distress is not the equivalent of duress and is inadequate to invalidate the release”. Horgan, 657 P.2d at 753.
In arguing that he was unduly influenced, the plaintiff in this case contends that his wife’s illness created emotional distress and increased financial demands, enhanced his need to remain in the same community, increased bis dependence on the CFAC group health insurance plan, and enhanced the need to avoid further stress upon his family.
Plaintiffs arguments in support of undue influence parallel those made in the case of Horgan discussed above. His undue influence claim necessarily includes an argument of economic duress in this case. Thus, we will discuss the elements of both undue influence and economic duress.
Section 28-2-407, MCA, provides that undue influence consists of:
(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.
Plaintiff has failed to present facts sufficient to demonstrate -undue influence under the foregoing statute.
This Court has recently addressed economic duress in Hoven v. First Bank (N.A.)-Billings (1990), 244 Mont. 229, 234, 797 P.2d 915, 919, where we stated that the three elements of economic duress are (1) a wrongful act that; (2) overcomes the will of a person; (3) who has no adequate legal remedy to protect his interests. Plaintiff has failed to present facts demonstrating economic duress either under the Horgan test or the Hoven test.
In order to prove he was defrauded, plaintiff must prove all of the nine elements of fraud, including that he was ignorant of the falsity of any misrepresentations. See Batten v. Watts Cycle & Marine, Inc. (1989), 240 Mont. 113, 117, 783 P.2d 378, 380-81. As the District Court stated, the facts plaintiff relies on for his claims of fraud predated the signing of the release and were fully known to him when he consulted with his legal counsel before signing the release. We agree with the conclusion of the District Court that the plaintiff has failed to provide evidence of fraud sufficient to warrant a setting aside of the Termination Agreement.
Summary judgment is only proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Summary judgment is never a substitute for a trial on the merits. Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028. In granting summary judgment, the District Court held that by signing the Termination Agreement, plaintiff voluntarily relinquished all potential claims against CFAC and was precluded from bringing this action.
Plaintiff has failed to raise any issues of material fact with regard to his execution of the Termination Agreement. The District Court set forth its reasons for determining that the Termination Agreement was valid and enforceable. We agree with the District Court.
We hold that the Termination Agreement executed by plaintiff and CFAC was a valid enforceable agreement.
II
Was the plaintiff barred under the Termination Agreement from claiming any additional share of profits for distribution after his termination from employment?
Plaintiff claims an additional share of profits is due to him for distributions made prior to his termination from employment. As more folly appears in this part, we have concluded that plaintiff has failed to raise any issue of material fact with regard to such prior profit distributions, and that his claim in connection with such prior profit distributions is barred under his waiver of claims. As a result, this issue will be limited to consideration of the claimed share of profits which were to be distributed to the plaintiff after his termination from employment. Such profits were distributed during January 1990.
The record before us demonstrates that the Profit Sharing Plan covering all employees of CFAC in part provided:
— The Board of Directors of the Columbia Falls Aluminum Company will determine each year the amount of profits available for distribution. Fifty percent of the distributable profits as determined by the parent company will be distributed to employees.
— The profit sharing pool will be divided among the salaried and hourly groups based on the ratio of each group’s pay to total pay.
— The resultant salaried profit sharing will be further divided among all salaried employees who were employed on the last day of the fiscal year, using a ratio of the individual’s fiscal year-to-date pay to the total covered salaried payroll for the fiscal period.
— The salaried employees will be given a choice of cash or deferral (in 25% increments). If cash, it will be taxed as ordinary income. If deferred, tax is delayed until money is received. The deferral amounts will be held in a separate account within the new savings plan. It will be a 401(k)-type contribution: unavailable for withdrawal, 100% (sic) vested, and subject to the discrimination tests of 401(k).
— The resultant hourly profit sharing pool will be further divided among all hourly employees, in a manner to be determined by the company and the union.
Plaintiff maintains that in January 1990, he was to have received the profit sharing to which he was entitled -under the promises of the employment contract, Profit Sharing Plan and Termination Agreement. He maintains that instead, he received a profit sharing distribution payment which reflected a profit sharing declaration which was disproportionately small. He further maintains that he did not become aware that the profit sharing distribution was disproportionate to the profit sharing expected until the post-termination distribution in January 1990. In his affidavit filed in support of his opposition to summary judgment, plaintiff averred the following:
20. Contemporaneous with the calculation declaration and distribution in January and February of 1989, very large sums of money were transferred to Los Angeles, out of the control or record of my office such that I was unable to determine whether profits distributable and/or actually distributed were equally divided between employees and employers.
21. Subsequent declarations and distributions of profit sharing do not appear to be proportionate to the vast sums of money, profits and cash transferred from Columbia Falls to the Los Angeles office. 23. The only way to actually determine whether the profit sharing paid to CFAC employees is equal to the profit sharing promised would be to examine financial documents of the company that demonstrate actual profits, actual distributions (in any form) to owners, actual profit sharing payments, actual loans and interest on loans to owners or their interests and actual FICA and other tax payments, agreements and withholdings. Without such documents and evidence it would be impossible for me to give or secure an affidavit establishing the degree of discrepancy between profit sharing promised and profit sharing paid.
In considering the execution of the Termination Agreement with the release contained in paragraph 7, the District Court in its Order stated:
Plaintiff’s signature on the Termination Agreement represents his consent and agreement to enter into a valid and enforceable contract. For the valuable and considerable consideration of over $100,000 in compensation and benefits plaintiff agreed that he would “waive and relinquish any and all claims ...” (Emphasis supplied) that he had against the defendant. He further agreed to “release and forever discharge” the defendant “from any and all actions, suits ... and other liabilities relating to his employment relationship” with the company. Specifically, it was agreed that such release included a release of all claims arising from “wrongful termination” as well as past salary and specifically including “profit sharing.”
Plaintiff’s voluntary relinquishment of all potential claims against Defendant precludes him from pursuing this action. Because there are now no factual disputes before this Court as to any material issue, and the release affirmatively discharges any potential liability the defendant may have incurred because of Plaintiff’s termination, as a matter of law summary judgment should be granted in favor of Defendant.
We conclude that the District Court’s analysis is appropriate with regard to profit sharing to be paid for years prior to the termination of plaintiff’s employment. However, there are additional elements which the District Court did not consider with regard to the profit sharing distribution made in January 1990 to the plaintiff.
The District Court properly referred to paragraph 7 of the Termination Agreement which in pertinent part provided:
7. Waiver of claims. Both parties hereby waive and relinquish any and all claims, known and unknown, and do hereby mutually release and forever discharge one another... from all actions, suits, debts, agreements, obligations, costs, expenses and other liabilities relating to Somersille’s employment relationship with the Company. The foregoing shall include, but not limited to, any claim for past salary, wrongful termination or profit sharing.
The District Court then relied upon the foregoing waiver of claims and concluded that plaintiff’s claim for additional profit sharing to be distributed in January 1990 was clearly relinquished. In reaching that conclusion, the court did not consider the following pertinent portion of the Termination Agreement:
2. Compensation. Somersille shall be entitled to receive as severance pay:
(2) an amount equal to the profit sharing distribution to which Somersille normally would be entitled under the Company’s profit sharing plan based on his employment from January 27, 1989 to September 30, 1989. This profit sharing distribution will be made to Somersille at the time profit sharing distributions for 1989 are made to all employees, currently contemplated for January 1990.
While it is true that the waiver of all claims contained in paragraph 7 clearly applied to all profit sharing which had been made by the defendant prior to the termination of plaintiff’s employment, a different approach is required for the January 1990 distribution. In connection with that distribution, we conclude that both of the foregoing paragraphs 2 and 7 of the Termination Agreement must be considered. While it is true that the waiver is broad enough to cover all profit sharing in general terminology, we have the companion agreement by the defendant to pay Somersille an amount equal to the profit sharing distribution he normally would have been entitled to for his employment from January 27,1989 to September 30,1989, the date of his termination. The paragraph on waiver of claims should not be construed to include the consideration specifically provided for him under paragraph 2. By signing the Termination Agreement plaintiff should not be considered to have foreclosed his right to sue for the consideration he claims was to be furnished to him under paragraph 2.
The amount to be paid under paragraph 2 of the Termination Agreement was unknown to both the plaintiff and the defendant on the date of employment termination. Clearly the intent of the parties was that by January 1990, several months after plaintiff’s termination of employment, the defendant would calculate and pay the profit sharing payment to the plaintiff. In substance the Profit Sharing Plan required that 50 percent of the distributable profits as determined by the parent company, be distributed to the employees, with the division to be made among the various groups based upon the ratios of each group’s pay to the total pay. By his affidavits plaintiff has raised an issue of fact as to whether the profit sharing distribution actually made was incorrectly calculated and therefore disproportionately small. Plaintiff has also raised an issue of fact as to his contention that he did not become aware of the disproportionate nature of the profit sharing distribution until the actual distribution in January of 1990.
We conclude that plaintiff has raised issues of material fact with regard to the January 1990 profit distribution to the plaintiff. We therefore reverse the judgment insofar as it precluded the claim for profit sharing distribution contemplated for January 1990, and covering the period of plaintiff’s employment in 1989.
We therefore affirm on Issue I holding that the Termination Agreement was a valid enforceable agreement, and reverse and remand on Issue II for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDonough, hunt, gray and honorable Jeffrey SHERLOCK, District Judge, sitting for JUSTICE TRIEWEILER concur.
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] |
JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal by plaintiff Richard Shubert of an order of the Fourth Judicial District Court granting the defendant’s motions for summary judgment on Shubert’s claim for breach of the covenant of good faith and fair dealing and on defendant’s counterclaim for restitution in the amount of $276,381.41. We affirm.
There are two issues on appeal:
1. Did the District Court err in granting defendant’s motion for summary judgment on plaintiff’s claim of bad faith?
2. Did the District Court err in granting defendant’s motion for summary judgment on defendant’s counterclaim for restitution?
The Cabin Bar and Motel, owned by Dell E. Tyler and Richard Shubert as partners, was destroyed by fire. Investigation by the Missoula Fire Department and the insurer, Fireman’s Fund (Fireman’s) followed. Fireman’s did not make payments to the partners for their losses until six months later when Tyler and Shubert threatened to file a bad faith action. Thereafter, Fireman’s paid the partners $276,381.41.
Tyler and Shubert filed a bad faith claim against Fireman’s under the Montana Unfair Trade Practices Act. The defendant filed its initial answer and filed an amended answer after learning that the fire was caused by arson by one of the partners, Dell E. Tyler. Later, the defendant filed a motion for summary judgment on a bad faith claim and on its counterclaim for restitution.
Dell E. Tyler filed a response to defendants’ motion for summary judgment. In this response, he agreed that the bad faith claim should be dismissed as it pertained to him. He also agreed that Fireman’s was entitled to a judgment against him on the issue of restitution. A hearing on the motion for summary judgment as it pertained to Shubert, was held and the District Court issued its order and judgment. Amotion by Shubert to reconsider the judgment concerned only the issue of the restitution counterclaim. The motion was denied and this appeal followed.
“Under Rule 56(c), M.R.Civ.R, summary judgment is proper if the record discloses no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. (citation omitted.) In reviewing a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion, (citation omitted.)” Kaseta v. Northwestern Agency of Great Falls (1992), 252 Mont. 135, 827 P.2d 804, 49 St. Rep. 183, 184.
I.
Shubert contends that there are multiple issues of fact and law present in this case so it was improper for the District Court to grant summary judgment. Moreover, he argues that the District Court erred in awarding summary judgment to Fireman’s on Shubert’s bad faith claim and Fireman’s counterclaim for restitution. Defendant Fireman’s counters that the bad faith claim in settling the insurance claim cannot exist where the cause of the fire was arson and that arson voided the insurance policy. Further, it states that Fireman’s was fraudulently induced to pay the losses and restitution is the appropriate recourse.
Fireman’s cites Woodhouse v. Farmer’s Union Mut. Ins. Co. (1990), 241 Mont. 69, 785 P.2d 192, as determinative of this action. We agree. In Woodhouse, a woman attempted to recover from her insurance company for personal possessions lost in a trailer fire. Patricia Woodhouse was coinsured with her ex-husband on the trailer awarded to him during their divorce action. She still had many possessions in the trailer when her ex-husband intentionally burned the trailer, causing a total loss.
Woodhouse filed a claim for the loss of her possessions but the insurance company concluded that coverage was precluded because the fire had been intentionally set. Farmer’s policy read:
We do not insure for loss caused directly or indirectly by any of the following ... h. Intentional Loss, meaning any loss arising out of any act committed: (1) by or at the direction of an insured; and (2) with the intent to cause a loss.
Woodhouse, 785 P.2d at 193. The Court agreed with Farmer’s that the meaning of the contract was clear. Alan Woodhouse, the ex-husband, was an “insured” and his act was intentional. Therefore, coverage was precluded for him and Patricia, his coinsured.
The policy provision at issue here states:
This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto. (Page 1 of Standard Form Fire Insurance Policy).
The policy also states:
F. Perils Excluded. The property coverage does not insure against loss caused by, resulting from, contributed to or aggravated by:
(11) Any fraudulent, dishonest or criminal acts done by or at the instigation of any insured, partner, or joint adventurer in or of any insured, an officer, director, or trustee of any insured ...
(Page 3 of Commercial Property Coverage Policy).
This language is clear and unambiguous. “The property coverage does not insure against loss caused by... criminal acts done by... any insured, partner ....” Coverage is precluded because of the arson committed by Dell E. Tyler, the partner of Richard Shubert. “An innocent co-partner [can] not recover under a policy where arson was committed by a partner because the language of the policy specifically barred recovery ....” Woodhouse, 785 P.2d at 193.
Fireman’s argues that the bad faith claim is barred because the cause of the fire was arson. We stated in Britton v. Farmer’s Ins. Group (1986), 221 Mont. 67, 73, 721 P.2d 303, 307, “[a]s to the insured ..., the failure of the insurer to comply with Sec. 33-24-102, MCA would be unimportant if in fact Britton had committed arson to cause the loss for then he would not be entitled to coverage in any event.” Here, where the cause of the fire was arson, there can be no bad faith action and the District Court was correct in granting summary judgment to the Defendant.
II.
Fireman’s argues that it is at least as innocent as Shubert and therefore restitution is appropriate. Fireman’s cites McDonald v. Northern Ben. Ass’n. (1942), 113 Mont. 595, 131 P.2d 479, for the proposition that when an insurer has paid a claim for loss under a mistake of fact, it is entitled to recover the amount paid. In McDonald, the plaintiff’s husband obtained a certificate for death benefits from defendant, a mutual benefit association. He maintained in the application that he was in good health and had not consulted a doctor within the past five years, both statements being false. Shortly after McDonald’s death, the defendant made a partial payment to the deceased’s beneficiary, his wife. The beneficiary then brought an action against the defendant for recovery of the rest of the benefits. Defendant answered that the statements given were false. The written application, expressly made a part of the contract stated: “I also agree ... that no liability shall exist against the Ass’n. if any of the answers to the above questions relative to my health on the date below are found to be untrue.” McDonald, 131 P.2d at 483.
The Court concluded that:
[t]here is no doubt that a party is entitled to sue and recover money which he has paid by mistake of fact, or of mingled fact and law, and which the receiver ought not, in equity and good conscience, to retain .... The fact that the second payment of $50 was made after the defendant had some reason to suspect the falsity of the answers to the questions concerning the member’s health, does not affect the defendant’s right to recover the money, not in itself having the elements of an estoppel, or of a waiver, which latter consists of the intentional relinquishment of a known right... and not apparently having caused plaintiff to change her position for the worse so as to entitle her in equity and good conscience to keep the money.
McDonald, 131 P.2d at 486-487.
The partners obtained the insurance proceeds based on a fraud, even though Shubert was unaware of the fraud. Under the insurance contract, the policy was void and the partners were not entitled to any of the payments made on the insurance loss. Fireman’s may recover the money paid for the fraudulent claim.
Shubert argues that he has had a change of circumstances and therefore should not be required to pay restitution to the insurance company. He cites the Restatement of Restitution to support his argument. Section 142, Restatement of Restitution states that:
(1) The right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.
(2) Change of circumstances may be a defense or a partial defense if the conduct of the recipient was not tortious and he was no more at fault for his receipt, retention or dealing with the subject matter than was the claimant. (Restatement of Restitution § 142.)
Shubert states in his brief that the insurance “proceeds received from Respondent in this matter were used to discharge the outstanding debts of the partnership,” and therefore are a change of circumstances. However, Comment b to § 142 provides for exceptions to the general rule. Comment b states:
Where money has been paid which the payee has used for the payment of debts incurred prior to its receipt, such payment of debts does not constitute a change of circumstances which would prevent restitution by him.
Under comment b to § 142, the use of the insurance proceeds falls within the exception to “change of circumstances” and this argument falls.
Finally, Sec. 35-10-307, MCA, reads as follows: “All partners are liable ... (2) jointly for all other debts and obligations of the partnership ....” The District Court correctly concluded that Shubert, as a partner, albeit an innocent partner, is liable for restitution for the insurance proceeds.
Shubert argues that laches, waiver and equitable estoppel apply to this case and warrant reversing the District Court judge’s order. These issues were not briefed or argued in the lower court and thus are not appropriate for review. Shubert’s answer to Fireman’s counterclaim claims that his third defense to the counterclaim was laches and his fourth defense was estoppel. Waiver was not even pled by Shubert. Other than these contentions, there is no real argument or discussion regarding these issues. They are not addressed at all by the lower court in its opinion. “This Comb will not consider for the first time on appeal an issue which was not raised in the District Court.” Keller v. Dooling (1991), 248 Mont. 535, 540, 813 P.2d 437, 441. See also Merriman v. Merriman (1991), 247 Mont. 491, 496, 807 P.2d 1351, 1354.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and TRIEWEILER concur.
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] |
JUSTICE HUNT
delivered the opinion of the Court.
Appellant Daniel Lee Jess appeals from an order of the Thirteenth Judicial District Court, Stillwater County, denying his petition for reinstatement of his driver’s license pursuant to § 61-8-403, MCA.
We affirm.
Three issues are presented to this Court for our consideration.
1. Did the District Court err in holding that appellant has the burden of proof for seeking reinstatement of his driver’s license following its suspension under § 61-8-403, MCA?
2. Was there sufficient evidence in the record to support the District Court’s conclusion that the arresting officer had reasonable grounds to suspect that appellant had been driving under the influence of alcohol?
3. Did the officers have reasonable grounds to make an arrest?
On May 25,1991, Daniel Lee Jess, accompanied by a friend, drove Jess’s pickup truck from Columbus to Rapelje to perform contract work. On Jess’s return home from Columbus, he was observed by another motorist who had followed him for a long distance and who testified that Jess was driving erratically and his vehicle was “all over the road.” She stated that at one point he started to veer off the road and nearly hit a bridge near Kaiser Creek. She also testified that she saw the driver drink something, but could not identify what it was. When the witness arrived at Columbus, she immediately went to the sheriff’s office and gave the dispatcher the description of the pickup, the license plate number, and reported that she had recognized Jess as the driver of the pickup. She also described what she believed to be erratic driving.
While the witness went to the sheriff’s office, Jess and his companion drove to a bar in Columbus and began drinking there. The dispatcher radioed the information given by the witness to Officer Woods. Deputy Salte was in the dispatch office when the witness made her complaint. Approximately five minutes later, the officers located the pickup outside the bar. Neither officer had seen appellant drive his pickup truck.
Following a discussion inside the bar, Officer Woods requested that appellant come outside. Officer Woods told appellant that a witness had reported a drunken driver. After another conversation ensued, Officer Woods requested that appellant accompany her in the police car to the sheriff’s office. It is in dispute as to whether Officer Woods demanded or requested that appellant go to the sheriff’s office. Appellant did accompany the officer to the sheriff’s office. Both officers observed that appellant had slurred speech, bloodshot eyes, and was staggering, and concluded that he was under the influence of alcohol. Officer Woods informed appellant that if the witness did not sign a complaint against him, then he would be returned to the bar. Appellant believed that he was arrested at this point and was compelled to go to the sheriff’s office.
Upon arrival at the sheriff’s office, there was a problem with locating the witness and appellant was placed in a booking room. Approximately 15 minutes later, they located the witness and she signed a written statement. Officer Woods then placed appellant under arrest. Appellant refused the breathalyzer test and his license was immediately suspended for one year.
Appellant filed for a reinstatement hearing which was held on August 26, 1991. On September 23,1991, the court entered its order and memorandum denying reinstatement of appellant’s license. Appellant appeals this decision.
I.
Did the District Court err in holding that appellant has the burden of proof for seeking reinstatement of his driver’s license following its suspension under § 61-8-403, MCA?
Appellant raises a constitutional challenge to § 61-8-403, MCA. He readily admits that this challenge was not raised in District Court, nor was the Montana Attorney General properly notified. Therefore, we will not discuss appellant’s constitutional challenge.
As to the burden of proof issue, appellant contends that even though a proceeding brought under § 61-8-402, MCA, is civil in nature, the determinations made by the District Court are traditional criminal issues in which the State always has the burden of proof. This is an issue of first impression before this Court.
Under Montana’s implied consent law, a person who is arrested for operating a motor vehicle while under the influence of alcohol is considered to have given his consent to a breathalyzer test for the purpose of determining the amount of alcohol in his blood. A person who refuses to consent to a breathalyzer test will face immediate seizure of his driver’s license and formal suspension of his driving privileges by the Department of Justice. § 61-8-402(3), MCA.
Upon suspension of a driver’s license for failure to take a breathalyzer test, the individual may appeal to the district court for review under § 61-8-403, MCA, which states:
The department shall immediately notify any person whose license or privilege to drive has been suspended or revoked, as hereinbefore authorized, in writing and such person shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person resides or in the district court in the county in which this arrest was made. Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided. [Emphasis added.]
We have stated that a hearing held under § 61-8-403, MCA, is “a civil proceeding, separate and distinct from a criminal trial ....” Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265. During this civil proceeding, the judge is limited to only reviewing the propriety of the suspension of the driver’s license for refusing to submit to a breathalyzer test. The issues are clearly defined by statute and require a lower burden of proof than the criminal proceeding. § 61-8-403, MCA, limits the inquiry to the following issues:
(1) whether the arresting officer had reasonable grounds to believe the following:
(a) that the petitioner had been driving or was in actual physical control of a vehicle;
(b) that the vehicle was on a way of this State open to the public; and
(c) that the petitioner was under the influence of alcohol;
(2) whether the individual was placed under arrest; and
(3) whether the individual refused to submit to a chemical test.
Gebhardt, 775 P.2d at 1265.
In a criminal proceeding for driving under the influence, the judge or jury actually decides the ultimate issue, of whether, beyond a reasonable doubt, the defendant had been driving or was in actual physical control of a vehicle on the ways of this state open to the public while under the influence of alcohol. Gebhardt, 775 P.2d at 1265. We have also stated that the ability to operate a motor vehicle on a public highway is not a fundamental right, but a revokable privilege that is granted upon complying with statutory licensing procedures. State v. Skurdal (1988), 235 Mont. 291, 767 P.2d 304.
Unfortunately, § 61-8-403, MCA, does not clearly state who has the burden of proof in the civil proceeding. Both parties cite to numerous state jurisdictions to support their position. Even so, we believe that § 26-1-401, MCA, is the applicable statute. It states the following:
The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Thereafter, the burden of producing evidence is on the party who would suffer a finding against him in the absence of further evidence.
We have previously interpreted this statute to mean that “the party asserting a right in any case has the burden of proving each of the material allegations stated in the complaint.” McDonald v. Peters (1954), 128 Mont. 241, 243, 272 P.2d 730, 731. The State’s action of immediately seizing the driver’s license is authorized upon the appellant’s refusal to comply with the implied consent statute, and review of the revocation is initiated only at the request of the appellant. § 61-8-402 and -403, MCA. There is a presumption of correctness to the State’s action until otherwise shown to be improper. § 61-8-402, MCA. Thus, it is the appellant who is asserting the right to reinstatement of his driver’s license by filing a petition with the District Court. If he fails to file his petition or produce any evidence, then the suspension remains in effect. The burden of proof falls upon the appellant to prove the invalidity of the State’s action, rather than require the State to justify its act of revocation. We hold that the District Court did not err in requiring that appellant have the initial burden of proof.
II.
Was sufficient evidence in the record to support the District Court’s conclusion that the arresting officer had reasonable grounds to suspect that appellant had been driving under the influence of alcohol?
Appellant claims that the officers did not have the requisite “particularized suspicion” to investigate him. In determining whether an officer is justified in making an investigatory stop, the State must prove the existence of a “particularized suspicion.” In the Matter of the Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 712 P.2d 1338. This can be accomplished by proving “(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing.” Blake, 712 P.2d at 1340. An officer has reasonable grounds if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the defendant is under the influence of alcohol. Gebhardt, 775 P.2d at 1265. In addition, we have stated that an arresting officer may rely on information conveyed by a reliable third person. Boland v. State (1990), 242 Mont. 520, 792 P.2d 1. In State v. Sharp (1985), 217 Mont. 40, 46, 702 P.2d 959, 962, the majority of the Court held that information conveyed by a “citizen informant” is considered presumptively reliable. In that case, the citizen informant reported a possible DUI and gave the license number of the vehicle, its description, and the direction it was travelling. If an officer receives a complete vehicle description, the officer has a particularized reason to question a suspect. State v. Ellinger (1986), 223 Mont. 349, 352, 725 P.2d 1201, 1203.
In this instance, the witness followed appellant’s truck for a considerable amount of time and observed the vehicle swerving on the road, go partially off the road, and nearly hit a bridge. The witness reported to the dispatcher the license plate number, the description of the truck, and that she recognized the driver as appellant. She described the erratic driving and the direction the pickup was heading. She also stated that the passenger was wearing a red hat. The dispatcher relayed the information to Officer Woods. Deputy Salte testified that he was in the dispatcher’s office when the witness gave the information to the dispatcher. The information was corroborated when, within five minutes, the officers located appellant’s vehicle parked at the bar. At a minimum, the citizen tip provided the officers with probable cause to investigate.
Upon entering the bar, Officer Woods located appellant, as well as his friend who was wearing a red hat, and asked appellant to step outside, to which he agreed. At this point, both officers observed that appellant had slurred speech, trouble keeping his balance, and smelled of alcohol. Appellant admitted to driving on the road and he testified that he had had two beers to drink at the bar. We hold that there was sufficient evidence to conclude that Officer Woods had reasonable grounds to suspect that appellant had been driving under the influence of alcohol and had reasonable grounds to detain him.
III.
Did the officers have reasonable grounds to make an arrest?
A founded suspicion to stop for investigative detention may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop. Sharp, 702 P.2d 963. For an arrest to be valid, we must determine whether an officer had probable cause to make an arrest. This is accomplished by determining if at the time of the arrest the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a rehable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. Ellinger, 725 P.2d at 1202.
Both officers testified that based upon their observations they believed that appellant was under the influence of alcohol. Appellant accompanied Officer Woods to the sheriff’s office where the officer spoke with the witness to confirm the information relayed by the dispatcher. At this point, Officer Woods believed she had probable cause and placed appellant under arrest. Appellant then became belligerent and refused to take a breathalyzer test. We hold that Officer Woods had probable cause to make the arrest.
We affirm.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and WEBER concur.
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JUSTICE HUNT
delivered the opinion of the Court.
Appellant, State Compensation Mutual Insurance Fund (State Fund), appeals from an adverse decision rendered by the Workers’ Compensation Court. We affirm.
The only issue before this Court is whether the Workers’ Compensation Court erred in determining that Section 39-71-1033, MCA (1989), provides an independent right to pursue a contested case hearing before the Department of Labor and Industry (Department), when a claimant has failed to timely request a hearing pursuant to Section 39-71-1018, MCA (1989).
Claimant Nona Buechler Gibson was injured while working as a nurses’ aide on October 10, 1989. Claimant’s employer was insured for workers’ compensation coverage by the State Fund. The State Fund accepted liability and paid benefits from October 25,1989, until July 2, 1991.
In April 1991, the State Fund requested a rehabilitation panel be convened pursuant to Section 39-71-1016, MCA(1989). The panel met on May 15,1991. The panel report dated May 24,1991, recommended several positions, as previously identified by the designated rehabilitation provider, as appropriate for claimant under Section 39-71-1012(c), MCA (1989), which provides for a disabled worker to “return to a related occupation suited to the claimant’s education and marketable skills.” Pursuant to Section 39-71-1018, MCA(1989), the Department adopted the panel recommendations, and on June 5, 1991, issued an initial order of determination. Claimant did not submit a written exception to the initial order within ten days as provided by Section 39-71-1018, MCA (1989), and therefore, the Department’s initial order of determination became the final order of determination. Claimant did not bring an appeal from the final order of determination to the Workers’ Compensation Court within the ten days provided under Section 39-71-1018, MCA (1989).
The State Fund notified claimant on June 18,1991, that based on the Department’s order of June 5, 1991, her benefits would be terminated in 14 days. On September 4, 1991, claimant filed with the Department a document entitled “Appeal of Final Order of Determination.” The State Fund filed a motion to dismiss claimant’s request, alleging a lack of jurisdiction because claimant had failed to comply with the time requirements of Section 39-71-1018, MCA (1989), within which a party may request a hearing. Claimant resisted this motion, arguing that although the time limit for requesting a hearing had run under Section 39-71-1018, MCA (1989), jurisdiction existed pursuant to Section 39-71-1033, MCA (1989). On November 22, 1991, the hearing examiner dismissed claimant’s request. The hearing examiner determined that claimant’s request was not timely under Section 39-71-1018, MCA(1989), and concluded that Section 39-71-1033, MCA (1989), did not provide claimant with the right to request a contested case hearing independent of the appeals process set out in Section 39-71-1018, MCA (1989).
Claimant appealed this decision to the Workers’ Compensation Court. On March 24, 1992, the Workers’ Compensation Court reversed the decision of the hearing examiner. The Workers’ Compensation Court concluded that the two statutes in question are not in conflict and that the language of Section 39-71-1033, MCA (1989), provides an independent right to pursue a contested case hearing. The Workers’ Compensation Court remanded the matter to the Department to conduct a contested case hearing as provided for in Section 39-71-1033, MCA (1989). The State Fund appeals from that decision.
The only issue to be decided by this Court is whether the Workers’ ■ Compensation Court erred in determining that Section 39-71-1033, MCA(1989), provides an independent right to pursue a contested case hearing before the Department when a claimant has failed to timely request a hearing pursuant to Section 39-71-1018, MCA (1989).
Appellant requests that this Court review a conclusion of law made by the Workers’ Compensation Court. Concerning our standard of review of conclusions of law we recently stated:
“In such a case, the appropriate standard of review is simply whether the lower comb’s interpretation of the law is correct. We are not bound by the lower court’s conclusion and remain free to reach our own.”
Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523 (quoting Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309, 314, 697 P.2d 909, 912). This Court has explained this standard of review stating that:
The reasoning for simply determining if the court’s conclusions are correct is that no discretion is involved when a tribunal arrives at a conclusion of law — the tribunal either correctly or incorrectly applies the law. For that reason, this Court concludes that our standard of review relating to conclusions of law, whether the conclusions are made by an agency, workers’ compensation court, or trial court, is whether the tribunal's interpretation of the law is correct.
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The instant case deals with a conclusion of law, and therefore, upon review we will simply determine whether the conclusion was or was not correct. Additionally, it is well-settled that the law existing at the time of injury governs. Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331. Claimant was injured in 1989.
The resolution of this case depends upon an interpretation of several Montana statutes. In interpreting statutes, this Court is guided by several well-established principles. First, when a general statute and a specific statute are inconsistent, the specific statute governs, so that a specific legislative directive will control over an inconsistent general provision. State v. Montana Dept. of Public Service Regulation (1979), 181 Mont. 225, 593 P.2d 34; Section 1-2-102, MCA. However, when called upon to interpret several different provisions this Court will, if possible, construe the statutes so as to give effect to all of them. Section 1-2-101, MCA. A specific statute will only govern over a more general statute if the two statutes are in conflict and cannot be resolved. In this case, the Workers’ Compensation Court concluded that the statutes could be interpreted so as to give meaning to both statutes. While the statutes in question are not models of clarity, we agree with the Workers’ Compensation Court that the statutes are not in direct conflict with each other.
The State Fund argues that as the statute specifically addressing the filing of exceptions and requests for hearings on the findings of the panel, Section 39-71-1018, MCA (1989), should govern in this situation. Section 39-71-1018, MCA (1989), provides that:
(1) The department shall issue an initial order of determination within 10 working days of receipt of a report from a rehabilitation panel. If the initial order of determination differs from the findings and recommendations of the panel, the order must state the reasons for the difference.
(2) Within 10 working days from the date the initial order of determination is mailed, a party may submit a written exception to the order. On its own motion or at the request of any party, the department shall conduct a hearing. The department shall issue a final order of determination within 20 working days of the hearing.
(3) If no party submits an exception within 10 working days, the initial order of determination becomes the final order of determination and must be issued by the department.
(4) Within 10 working days after the date of mailing of the department’s final order of determination, an appeal may be taken to the workers’ compensation court.
Claimant concedes that she did not submit any written exceptions to the initial order of determination, nor did she appeal the final order of determination to the Workers’ Compensation Court, within the time provided in Section 39-71-1018, MCA (1989). However, claimant argues that Section 39-71-1033, MCA (1989), provides a separate right to request a contested case hearing before the Department. Section 39-71-1033, MCA (1989), provides that:
In addition to pursuing the hearing opportunities provided in 39-71-1018 and 39-71-1032, a party may bring a dispute arising under the provisions of this part, except for a dispute over which the department of social and rehabilitation services has jurisdiction under 39-71-1019, before the department under the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, and any rules promulgated by the department. Within 10 days after mailing of the department’s final order, an interested party may appeal to the workers’ compensation court. [Emphasis added.]
As the hearing examiner correctly noted, claimant’s request for a contested case hearing -under Section 39-71-1033, MCA (1989), would be considered timely pursuant to Rule 24.29.215(2), ARM. This rule provides a claimant with 90 days to appeal from the notice of any adverse action. Therefore, the only question before this Court is whether Section 39-71-1033, MCA (1989), provides a separate right of appeal.
The Workers’ Compensation Court, in discussing the effect of Section 39-71-1018, MCA (1989), stated that:
On its face, Section 39-71-1018, MCA, allows an appeal to the Workers’ Compensation Court without the need for a contested case hearing or a hearing of any kind before the Department. Any such appeal, of necessity, would have to be based on a “paper record.” Indeed even the filing of exceptions, as provided in subsection (2) does not mean that a hearing would necessarily follow.
The Workers’ Compensation Court noted that the clear language of Section 39-71-1033, MCA (1989), provides for a contested case hearing in addition to the hearing opportunities provided for in Section 39-71-1018, MCA (1989). The Workers’ Compensation Court noted in discussing the two statutes that:
By construing section 39-71-1033 to provide a party an independent right to pursue a contested case under the Montana Administrative Procedure Act, the Court can preserve both statutes and give meaning to the phrase “In addition to ....”
The Court notes that if the legislature had intended these sections to be mutually exclusive it could easily have done so. The fact that such exclusion is not apparent requires the Court to give meaning to all of the provisions of part 10.
The State Fund argues that the Workers’ Compensation Court’s interpretation of these two statutes will only confuse “administrative procedure for the implementing agency and the parties who must be able to rely on the statutes in consideration of applicable hearing and appeal periods.” The Workers’ Compensation Court merely interpreted the statutes as written, giving effect to both provisions. Any resulting confusion is entirely attributable to the legislative enactments which created a separate right of appeal in Section 39-71-1033, MCA (1989). Under the facts as presented in this case, the Workers’ Compensation Court was correct in concluding that Section 39-71-1033, MCA (1989), provides a contested case hearing opportunity in addition to the process provided for in Section 39-71-1018, MCA (1989).
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and GRAY concur.
|
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JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the Workers’ Compensation Court, the Honorable Timothy W. Reardon presiding. The Workers’ Compensation Court adopted the Findings of Fact and Conclusions of Law and Proposed Judgment of the hearing examiner granting claimant Clarence Mennis (Mennis) permanent total disability benefits and reasonable attorney’s fees and costs, but denying domiciliary care benefits. Mennis appeals from that part of the judgment which denied domiciliary care benefits. We affirm.
The issue on appeal is whether the Workers’ Compensation Court erred in denying Mennis’ claim for domiciliary care benefits pursuant to Sec. 39-71-704, MCA (1983), and the five part test adopted in Carlson v. Cain (1985), 216 Mont. 129, 700 P.2d 607.
Mennis worked in the metal fabrication shop at Anderson Steel Supply (Anderson Steel) as a fabricator and welder. His duties included producing orders, building door frames, fabricating doors, and modifying doors. On February 22, 1985, three steel door frames fell on him and fractured his cheek bones, broke several teeth, separated his right shoulder, and inflicted a traumatic closed head injury. At the time of the accident Anderson Steel was enrolled under Compensation Plan Two of the Workers’ Compensation Act and EBI Insurance Company (EBI) was its insurer.
When his shoulder had healed satisfactorily, his doctor released him to return to work. Mennis returned to Anderson Steel on April 24, 1985, in the same position he had before the accident. In August 1985, Mennis complained of lightheadedness and headaches to Dr. Person. Dr. Person referred Mennis to Dr. Labunetz, a neurologist at the Great Falls Clinic, who diagnosed Mennis’ condition as “muscle contraction/vascular headaches, post concussive as well as post concussive syndrome.” By March 1986, Dr. Labunetz felt that this condition basically had been resolved. In July 1986, Dr. Labunetz referred Mennis to Dr. Shubat, a clinical psychologist, for biofeedback relaxation therapy to help control some continuing pain and for neuropsychological evaluation. Dr. Shubat diagnosed Mennis as suffering from mixed organic brain syndrome. Dr. Shubat referred Mennis to Charles Bock, a speech pathologist, for cognitive retraining. Mennis also received treatment from Dr. David Bush, a psychologist, from March through June of 1987 for what Mennis perceived as personality changes and declining cognitive performance.
In January 1988, Mennis transferred from the fabricating and welding shop to the sales force at Anderson Steel. The noise, dust, and heat of the shop aggravated Mennis’ problems caused by the injury. Anderson Steel did not create this position to accommodate Mennis; rather, the position came open and Mennis received a transfer.
In September 1988, Mennis did not return to work at Anderson Steel after undergoing a septoplasty to correct a nasal obstruction that was secondary to the injury caused by the accident. Anderson Steel had informed Mennis that it could not hold his job open because it did not know when he would return after the surgery. He has been unemployed since September 13, 1988.
In July 1989, Mennis’ wife Beverly also quit working full time, reducing her hours to six hours a week. She is employed as a legal secretary. Mennis claims she quit working full time at the direction of Drs. Labunetz and Shubat. However, Jeanne Dussault, an independent living specialist who met with the Mennises in March 1990, testified that Beverly had indicated that she wanted to quit working before Mennis’ accident to spend more time with the children, and that she reduced her hours because of her needs and to alleviate the stress she felt from working full time and being a full time homemaker.
In order to investigate Mennis’ claim, EBI hired Allstate Professional Investigators to observe Mennis. Larry Alexander, the investigator assigned to the case, testified at trial that he first observed Mennis on December 19, 1989. On that day he saw Mennis drive his vehicle to his home, pick up the mail, and enter his home. He again observed Mennis on January 11, 1990. On that day he watched Mennis drive his children to and from school and drive his wife to work. Mr. Alexander also observed Mennis depart in his vehicle and later return on foot.
EBI later hired Putman and Associates to do further surveillance of Mennis. Rick Hawk testified that he first observed Mennis from February 21 to February 24, 1990. During that time he observed Mennis driving his vehicle on numerous occasions, washing the interior and exterior of his vehicle, buying groceries for his children’s lunch, and cleaning a storage shed beside his house. Mr. Hawk testified that he never observed a problem with Mennis’ driving. Mr. Hawk also observed Mennis from April 15 to April 18,1990, and saw him drive with no difficulty on those occasions.
Mennis claims that it is necessary for his wife to stay home to provide domiciliary care and that he should receive benefits to pay for her services. The Workers’ Compensation Court denied Mennis’ claim for domiciliary care benefits finding that he failed to meet the five point test adopted in Carlson for allowing domiciliary care. The issue on appeal is whether the Workers’ Compensation Court erred in denying Mennis’ claim for domiciliary care pursuant to Sec. 39-71-704, MCA (1983), and the five part test of Carlson.
This Court will not overturn the findings and conclusions of the Workers’ Compensation Court where there is substantial credible evidence to support them. Nor will this Court substitute its judgment for that of the Workers’ Compensation Court as to the weight of evidence on questions of fact. EBI / Orion Group v. State Compensation Mut. Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d 1070, 1072 (citing Steffes v. 93 Leasing Co., Inc. (1978) 177 Mont. 83, 86, 580 P.2d 450, 452-453). In this case we are asked to determine whether there is substantial credible evidence to support the Workers’ Compensation Court’s determination that Mennis is not entitled to domiciliary care benefits under Carlson.
Initially, Mennis’ claim to domiciliary care arises out of Sec. 39-71-704(l)(a), MCA (1983), which states:
Payment of medical, hospital, and related services. (1) In addition to the compensation provided by this chapter and as an additional benefit separate and apart from compensation, the following shall be furnished:
(a) After the happening of the injury, the employer or insurer shall furnish, without limitation as to length of time or dollar amount, reasonable services by a physician or surgeon, reasonable hospital services and medicines when needed, and such other treatment as may be approved by the division for the injuries sustained.
Domiciliary care comes within the “such other treatment” language of the statute. This Court adopted a five point test in Carlson to determine whether in-home services are compensable. Those factors are:
(1) The employer knows of the employee’s need for medical services at home resulting from the industrial injury; (2) the preponderance of credible medical evidence demonstrates that home nursing care is necessary as a result of accident, and describes with a reasonable degree of particularity the nature and extent of duties to be performed by the family members; (3) the services are performed under the direction of a physician; (4) the services rendered are of the type normally rendered by trained attendants and beyond the scope of normal household duties; and (5) there is a means to determine with reasonable certainty the approximate value of the services performed.
Carlson, 700 P.2d at 614.
We subsequently reaffirmed the use of that test in Larson v. Squire Shops, Inc. (1987), 228 Mont. 377, 742 P.2d 1003.
Although the Workers’ Compensation Court found that Mennis was permanently totally disabled, it also found that he failed to meet any part of this test, so it denied domiciliary care. As EBI correctly points out, the evidence required to prove permanent total disability is different than that required to justify domiciliary care.
The first element of the Carlson test requires that the employer know of the employee’s need for medical services at home as a result of the accident. In his Petition For Hearing and Amended Petition For Hearing, Mennis sought domiciliary care benefits from the date of his injury. The first indication Anderson Steel had that Mennis claimed a need for domiciliary care came in June of 1989 when EBI’s attorney received a letter from Mennis’ attorney. That letter included copies of letters from Drs. Labunetz and Shubat. In a letter dated May 22, 1989, Dr. Labunetz claimed:
Domiciliary care or supervision would be important and in fact essential. This would be required constantly unless or until he developed a rigid enough program to function with only spot supervision, though this seems unlikely.
In a letter dated May 24, 1989, Dr. Shubat claimed:
It is clearly apparent that Beverly Mennis’s presence in the home is absolutely paramount.... [I]t is still going to require the presence of Beverly in the home to implement these programs in an integrated and consistent manner.
Up to this point, Anderson Steel was justifiably unaware of any need for full time care. As noted previously, Mennis returned to work approximately two months after the accident and worked for approximately two and a half years before not returning after the nasal surgery. His supervisor, Dan Sayre, testified at trial that Mennis had a noticeable sinus problem and complained of the noise, dust, and heat in the shop. These symptoms did not give any indication that Mennis required domiciliary care. Apart from those two problems, Sayre testified that Mennis was a reliable, conscientious worker whose quality of work did not suffer after the accident and who did not require help from others. Nor did Mennis receive any reprimands for his work after the accident.
As evidence that Anderson Steel knew that he needed care, Mennis cites the testimony of his brother-in-law and co-worker, Phillip War-math, who testified that Mennis became forgetful and needed correct ing. Warmath’s statements, however, show only occasional difficulty with the job; they are irrelevant to Anderson Steel’s knowledge of a need for domiciliary care.
Mennis’ return to work and his thirty months of continued employment distinguish this case from Carlson, Larson, and Hilbig v. Central Glass Co. (1989), 238 Mont. 375, 777 P.2d 1296, where the claimants were unable to return to work due to the severity of injuries caused by an industrial accident. Although Mennis may have suffered a permanent total disability, that did not automatically put the employer on notice that he also required domiciliary care. Anderson Steel had no knowledge of any need for domiciliary care during the two and a half years Mennis continued to work or for another nine months after that until the doctors made the claim.
The second element of the test requires that the preponderance of credible medical evidence demonstrate that home nursing care is necessary and that the nature and extent of the duties to be performed by the family members be described with a reasonable degree of particularity. There was much testimony regarding whether Mennis needs care. Mennis argues that the opinions of Drs. Shubat and Labunetz establish his need for domiciliary care. Dr. Shubat’s main concerns were that Mennis have structure, have someone to administer his medications, and have someone present during emergencies. However, he admitted that he did not know how Mennis would react in an emergency and that Mennis should be tested and should practice responding to emergencies. Dr. Labunetz admitted that Beverly Mennis could see that Mennis took his medication as directed by administering it in the morning, at lunch, and in the evening when she returned from work.
Dr. Charles Bock found no significant malingering on Mennis’ behalf. He felt that even though Beverly’s personality is such that other people could provide better therapy for Mennis, she had provided an environment on a day-to-day basis that was optimum for dealing with such problems as his short attention span, distractibility, and limited ability to plan and carry out tasks.
Jeanne Dussault, an independent living specialist, stated that a domiciliary caretaker might have helped Mennis learn some basic homemaking skills during the year that she worked with him (March 1989 to February 1990).
Mennis also retained the services of Dr. Lloyd Cripe, a clinical neuropsychologist, to test him and evaluate the other information gathered on him. Dr. Cripe testified in his deposition that a person with the degree of brain dysfunction Mennis suffered typically does not need attendant care. He stated that on the basis of the neuropsychological test results alone, Mennis would not need attendant care. He did add, however, that Mennis’ depression and headaches complicate the situation. In the end, Dr. Cripe deferred to Drs. Shubat and Labunetz on the issue of domiciliary care.
On the other hand, even Dr. Shubat testified that Mennis’ “bad” days only meant that he did not have a good day with his children or with himself. Although Dr. Tompkins of the Montana Medical/Legal Panel did not have an opinion as to whether Mennis needed full time care, he did find that Mennis possessed some functional skills, was purposeful, motivated, cooperative, and able to initiate action.
Dr. Bock felt that it is easier for Mennis to sit back and not deal with the complexities of the day, but he did not order domiciliary care. He testified that Mennis could draw up a schedule for the day with his computer program which broke down chores and activities into small tasks. EBI plausibly argues that structuring the day does not require a trained nursing attendant.
Dr. Bush, a psychologist who treated Mennis from March through June of 1987, testified that at that time Mennis was capable of maintaining himself in the home during the day, and that he found it hard to believe that a person with the type of injury Mennis suffered would decline to the point of total invalidism unless he had medical complications leading to severe damage of the central nervous system. In his June 5,1989, deposition, Dr. Bush was surprised to learn that Mennis requested domiciliary care.
Dr. Lees-Haley, the expert retained by EBI, evaluated Mennis on March 12, 1991, and testified at trial. We note that Mennis made a great effort to discredit Dr. Lees-Haley’s credentials and testing. However, Dr. Lees-Haley’s extensive curriculum vitae was entered into evidence. Dr. Lees-Haley is a board certified vocational expert, a fellow of the American College of Forensic Psychology, and a diplómate of the American Board of Professional Psychology and the American Board of Vocational Experts. Dr. Tompkins testified in his deposition that he felt Dr. Lees-Haley chose reasonable tests. This Court will not substitute its judgment for that of the Worker’s Compensation Court concerning the credibility of witnesses or the weight of their testimony. Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 510, 813 P.2d 405, 408.
Dr. Lees-Haley found Mennis’ claim that he could not do a number of things implausible because of his objective performances on the tests he and other doctors administered and because of Mennis’ observable behavior on the day he tested him. As part of his evaluation of Mennis’ claim, Dr. Lees-Haley viewed the video surveillance tapes. He testified as follows regarding what he learned from the tapes:
Q. Do you have an opinion on whether or not the videotape behavior of Clarence Mennis was consistent with the cognitive deficits identified by Dr. Shubat?
A. Yes.
Q. What is your opinion?
A. Number one, that he is functioning superior to his functioning as opined by Dr. Shubat. Number two, that he was behaving in a way that was different than Dr. Shubat appears to have believed, based on his own observations and what Mr. Mennis told him. There’s a discrepancy between what you learn about Mr. Mennis from Dr. Shubat’s record and what you learn from the videotape, and my viewing of the videotape is that he is able to move about, ride a bicycle, drive a car, talk with people, read from a loose-leaf notebook. Apparently he takes a car to the doctor’s office [referring to the fact that Mennis took a cab to the Dr.’s office on the day that he was videotaped even though he drove his own car on numerous other occasions that same day]. Putting a variety of things together. But he drove a vehicle with no assistance in the videotape, and he appears to be monitoring children.
I feel that it’s inconsistent. That to say a man is so incapacitated he can’t be left alone himself without a babysitter for him and see him, in fact, supervising children. He drove a car with a child and assumed responsibility for driving a car with a child in the car, and a woman that I correctly or incorrectly interpreted as being Mrs. Mennis .... The ability to move around, ride a bicycle, and drive a car, things like that have some relevance.
Dr. Lees-Haley also found Mennis able to initiate and sustain purposeful activity. He testified as follows:
Q. Do you have an opinion as to whether Clarence Mennis is able to initiate and sustain purposeful activity?
A. Yes, ma’am.
Q. (By Ms. Rebeck) What is your opinion?
A. That he is able to do so.
Q. On what is your opinion based?
A. Broadly on two things. One is that complete lack of evidence that he can’t, and he’s an adult man of normal intelligence. Number two, that when he came with me and met with me in the evaluation, when I met him in person, he walked in and did all sorts of things that are consistent with being able to engage in purposeful activity, ranging from little spontaneous things to self-care things like we ordered lunch. He decided what he wanted, he ate, and he answered the questions. He was able to monitor my questions and bring out information. He was able to go to the phone and call for information unassisted. He was able to maintain his train of thought when I interrupted him to see if he was capable of maintaining his train of thought. He was able to take written tests. He was able to ask appropriate questions about the instructions, to clarify things. He was able to accomplish the tests, to begin and continue and complete the tests, answer my complicated and simple questions, understand the questions, and give answers when he needed to. He didn’t always know them. There were a few times when he said that he didn’t know or didn’t remember or didn’t understand, but I see no reason to believe this gentleman can’t engage in purposeful activity, initiate his own activity. I think he’s doing it. I consider the videotape, driving a child in the car, is hardly the inability to do purposeful and dangerous activity.
We note that the surveillance occurred almost a year after Drs. Shubat and Labunetz claimed in their letters that Mennis required domiciliary care. There is substantial credible evidence supporting the Workers’ Compensation Court’s determination that the need for domiciliary care was not established.
Nor did the request for domiciliary care describe with a reasonable degree of particularity the nature and extent of the duties to be performed by the family members. The Workers’ Compensation Court in its Findings of Fact and Conclusions of Law noted that Dr. Labunetz did not prepare a specific plan stating the medical assistance Mennis needed. We find nothing in the record to the contrary.
As we hold that substantial credible evidence exists to justify the Workers’ Compensation Court’s decision on the first two requirements of the Carlson test, we need not discuss the other elements. The test is clearly a conjunctive test requiring that all elements be satisfied.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY, McDONOUGH, HUNT and WEBER concur.
|
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JUSTICE McDONOUGH
delivered the Opinion of the Court.
Plaintiffs, Thomas and Denise Baird, brought this action to recover damages from Norwest Bank for accelerating payment and repossessing their truck and van upon a default under an installment note. The complaint sought damages based on breach of contract; breach of the covenant of good faith and fair dealing; breach of the Montana Unfair Trade Practices and Consumer Protection Act; fraud; and intentional infliction of emotional distress. The jury returned a verdict for the Bairds and awarded them $5,200 for violation of the Montana Consumer Protection Act; $6,600 for breach of contract obligations; $27,000 for fraud; and $81,000 in punitive damages. Norwest appeals. We affirm in part and reverse in part.
The issues for our review are:
1. Was there sufficient evidence to support the jury’s verdict that Norwest Bank breached the contract?
2. Was there sufficient evidence to support the jury’s verdict that Norwest Bank committed fraud?
3. Was there sufficient evidence to support the jury’s award of emotional distress damages?
4. Did the District Court err in allowing the Bairds’ former attorney to testify as an expert witness?
5. Does the Montana Unfair Trade Practices and Consumer Protection Act apply to consumer loans by banks?
6. Did Norwest Bank waive the default provisions of the installment note by accepting late payments?
7. Should the Bairds be awarded attorney’s fees on appeal?
8. Did the District Court properly review the punitive damages award?
Plaintiffs, Thomas and Denise Baird, were the owners of a 1975 Dodge van and a 1979 4-wheel drive pickup truck. In early 1989, the front end of the truck failed and the Bairds borrowed $1,190.77 from Norwest Bank (Norwest) and used the money to fix the front end of the truck. The truck was put up as a security for the loan. The first payment on this loan was paid on time.
In April 1989, the engine on the truck failed and the Bairds borrowed additional money from Norwest to replace the truck engine. The second loan was for the amount of $2,904.81 and the money was used to repay the first Norwest loan and to purchase the new truck engine. Both the truck and the van were secured by a note and security agreement with monthly payments set at $140.68 beginning May 24, 1989.
The first payment on the second loan was eleven days late. The second payment was twenty-two days late. The delinquent account was assigned to a Norwest employee collector named Sarah Mosure (Ms. Mosure). When the third payment, due July 24th, became fifteen days overdue, Ms. Mosure initiated collection procedures on the Bairds’ account. Shortly thereafter, Ms. Mosure telephoned Mr. Baird.
The substance of that phone call was central to the issues decided by the jury. Ms. Mosure maintained that Mr. Baird and she agreed that the account would be brought up to date by September 1st. The Bairds maintained that Ms. Mosure agreed to give them until September 15th to make the payment. Ms. Mosure entered the September 1st date as the agreed date on the bank computer.
On September 12, 1989, when no payment had been made, Nor-west accelerated the note and repossessed the Bairds’ van. Norwest maintained that the Bairds were advised that they could obtain possession of their van by paying the accelerated loan balance. On September 13, the Bairds attempted to make the July and August payments by depositing a check in the Norwest night deposit. Nor-west returned those payments to the Bairds. The Bairds attempted to make timely September, October and November payments but those payments were also rejected by Norwest and were returned to them. On December 12, 1989, the pickup truck was also repossessed without notice to the Bairds.
The Bairds brought this action against Norwest and the case was tried before a jury. The jury returned a verdict for the Bairds, specifically finding that Norwest had breached a contract with the Bairds, committed fraud, and violated the Montana Unfair Trade Practice and Consumer Protection Act of 1973 (CPA). The jury awarded punitive damages. Norwest appeals the denial of its motion for directed verdict, the judgment entered on the jury verdict, and the denial of its motions for judgment NOV and new trial.
I
Was there sufficient evidence to support the jury’s verdict that Norwest breached the contract?
The jury was instructed with regard to the breach of contract claim as follows:
INSTRUCTION NO. 11
The issues to be determined by you in this case are these:
[D]id the Defendant breach its contractual obligations to Plaintiffs. If you find Defendant did not breach the contract, you will not consider the issue farther. If, however, you find such a breach occurred you will have a second question to consider, namely:
Was the breach the cause of any damage to Plaintiffs? If your answer to this question was “no” you will not consider the issue further. If your answer is “yes”, you will have a third question to consider, namely:
What actual damages arose from breach of the contract: (You may not award damages for emotional distress damages or punitive damages under this theory of recovery. You may not award damages already awarded under the Consumer Protection Act.)
The jury concluded that Norwest breached the contract and awarded damages of $6,600 to the Bairds.
Norwest contends there was a complete failure on the part of the Bairds to prove that Norwest agreed to give the Bairds until September 15th to bring their loan current. Bairds contend that Ms. Mosure had agreed to a payment date of September 15th.
The testimony of both Mr. and Mrs. Baird established that they told Ms. Mosure, the collector for Norwest, that they could make the payment “after the 10th.” Repossession took place on September 12. The testimony of Mr. Poston, at one time the attorney for Bairds, supports the Bairds’ contention that a September 15th date was agreed to and that Norwest breached the contract.
In addition, the testimony of Jean Fangsrud, also of Norwest, established that the Bairds had told her they had promised to pay by September 15:
Q. Can you describe for the jury what contact, if any, you had with either Tom or Denise Baird?
A. The only contact that I had with them was the day after the repossession. I first talked to Denise and then later that day I did talk to Tom in reference to the repossession.
Q. Would you describe for the jury the substance of the conversation that you had with Mrs. Baird?
A. Okay. When Denise did call me, she wanted to know why that Norwest Bank had repossessed the van. I explained to her because there was a broken promise to pay for two payments and then she had also indicated to me that Tom was going to make the two payments. I also told her at that time that Norwest Bank will not accept the two delinquent payments. The loan needed to be paid off in full, plus the expenses that Norwest Bank had incurred.
Q. You informed Denise at that time that the two payments, even if the Bairds were to attempt to make them that day, would not be accepted?
A. Correct.
Q. Did you have any further conversation with Mrs. Baird?
A. I don’t believe so.
Q. Would you describe for the jury the conversation you had with Mr. Baird later that day?
A. Mr. Baird had contacted me and also wanted to know why the repossession had taken place. I explained to him what had happened, the broken promise to pay the two payments. He had told me that he did not promise to pay on September 1 of ‘89. Because we had not received that it was assigned out to take possession.
Q. However, in reviewing the comments entered by Sarah Mosure, do you find information contrary to Mr. Baird’s assertion—
A. Yes.
Q. — that he did not promise to pay on September 1?
A. He had told Sarah that he would make payments on September 1. He said that the doctors paid by September 1.
Q. You also recognize, do you not, that in the course of your conversation Mr. Baird was in disagreement with Sarah’s position that he had promised by September 1st?
A. Yes, he informed me that he did not make a promise to pay for two payments on September 1st.
Q. He informed you he had promised to pay by September 15th? A. That’s what he informed me.
Q. And the only information you had that would dispute him was what Sarah had typed in?
A. Yes.
The jury concluded that Norwest breached the contract and assessed damages for such breach in the amount of $6,600.
The standard of review to be applied here was set forth in Barrett v. ASARCO (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080; and Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1261:
Substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Black’s Law Dictionary 1281 (5th Ed. 1979); Stanhope v. Lawrence (Mont. 1990), [241 Mont. 468], 787 P.2d 1226, 1228-1229, 47 St.Rep. 438, 440. Although it may be based on weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous. Christensen v. Britton (Mont. 1990), [(1989), 140 Mont. 393,] 784 P.2d 908, 913, 46 St.Rep. 2223, 2230. [Emphasis added.]
Barrett, 245 Mont. 196, 799 P.2d 1078.
In Hash v. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, 1365, this Court held “[t]his Court cannot reweigh the evidence or disturb the findings of a jury unless that evidence is so inherently impossible or improbable as not to be entitled to belief.” All of the parties agree that the payment date by agreement was extended. The contested fact is to what date. Although the Bairds failed to positively testify to an agreement with Norwest for a September 15th payment date, after considering all of the evidence, we conclude there was evidence which a reasonable mind might accept as adequate to support a conclusion of a September 15th payment date. We hold that there was sufficient evidence to support the jury’s verdict that Norwest breached the contract.
II
Was there sufficient evidence to support the jury’s verdict that Norwest committed fraud?
The jury was instructed on fraud as follows:
If you find that the parties agreed that the late payments were to be made by September 15,1989, then you may consider whether the Defendant committed fraud. If you find that the parties agreed that the late payments were to be made by September 1,1989, then you may not consider whether the Defendant committed fraud.
The jury was further instructed on the nine elements necessary to establish actual fraud. This Court recently described the same elements in Batten v. Watts Cycle and Marine (1989), 240 Mont. 113,117, 783 P.2d 378, 380-381. The elements and applicability to this case are:
1. Was there a representation?
The alleged representation in this case was that Norwest represented that it would allow the Bairds until September 15th to make their payment. Because in Issue I the jury found that the parties agreed to the payment date of the 15th, this element is satisfied.
2. Was the representation false?
Again, this element is disposed of under Issue I.
3. Was the false representation material?
From the facts it is clear that the payment date of September 15th was material.
4. Did the speaker have knowledge as to the falsity of the representation?
In other words, did Ms. Mosure, the speaker, know that she was falsely representing the agreed upon payment date when she entered September 1st into the computer? A review of the record demonstrates the total absence of evidence that Ms. Mosure knew of the falsity of the September 1 date. We therefore must conclude that the Bairds failed to satisfy this element of fraud.
5. Did the speaker intend that the false representation should be acted upon by the person and in the manner reasonably contemplated?
To restate, did Ms. Mosure, agent of Norwest, intend that the Bairds should act upon the false representation which Ms. Mosure had made as to the September 15th date? There is nothing in the record to demonstrate that Ms. Mosure intended that the Bairds act upon the September 15th date. Even the Bairds’ testimony fails to prove this point. Mr. Baird testified he told Ms. Mosure that he needed until after September 10th to make his payment. He did not testify that Ms. Mosure told him he could have until September 15th to make the payment. Ms. Mosure testified that Mr. Baird asked her if he could have until the 10th, but that she agreed to a payment date of the 1st. Even though we have affirmed the jury’s verdict under Issue I, that the parties agreed to a payment date of September 15th, there is absolutely no indication in the record that Ms. Mosure intentionally entered the wrong date into the computer.
In proving this element of fraud it is the speaker’s intent we are concerned with. That would be Ms. Mosure. It is true that the jury found there was an agreed upon date of September 15th, but the jury was able to consider all of the testimony and evidence and the surrounding circumstances in arriving at that conclusion. In satisfying this particular element of fraud only Ms. Mosure’s intent as the speaker may be considered. The record fails to reveal any such intent on Ms. Mosure’s part. Furthermore, no one testified that Bairds were intentionally given the wrong date or that Ms. Mosure intentionally entered the wrong date. Not even the Bairds so testified. In fact, the Bairds only maintain that Ms. Mosure mistakenly entered the wrong date. We conclude that the Bairds have failed to prove this essential element of fraud.
The Bairds failed to prove two of the essential elements required under the instruction in order to establish actual fraud. Therefore, we hold that there was not sufficient evidence to support the jury’s verdict that Norwest committed fraud and reverse on this issue.
We note that the jury awarded damages for fraud in the amount of $27,000. Because we reverse on this issue, the District Court shall vacate the damages awarded for fraud in the amount of $27,000.
Ill
Was there sufficient evidence to support the jury’s award of emotional distress damages?
The only damage award on the verdict form which might be construed to include emotional distress parasitic damages was for fraud. Such award is vacated by Issue II of this opinion. Therefore the issue is moot.
IV
Did the District Court err in allowing the Bairds’ former attorney to testify as an expert witness?
Mr. Poston, the Bairds’ first attorney, testified at trial about his involvement with the Bairds and about his contacts with Norwest and its attorney. Norwest maintains that he testified as an expert. It maintains that he testified to his legal opinion on the law of waiver, self-help repossession without notice, and acceleration of a note. Thus, Norwest maintains that all of these questions eliciting this testimony were improper.
Norwest states that as a general rule, an attorney cannot advise the jury as to the law of the case. Safeco Ins. Co. v. Ellinghouse (1986), 223 Mont, 239, 251, 725 P.2d 217, 224. Norwest maintains that Mr. Poston’s testimony pertained to ultimate legal issues in this case— whether Norwest acted fairly in the conduct of commerce under the CPA; whether Norwest had the right to repossess the vehicle absent notice; and whether Norwest had waived its right to accelerate the debt absent notice.
The Bairds urge that the only objection of Norwest’s counsel to the testimony of Mr. Poston was:
I object, your honor. I believe that the offer of an opinion may improperly invade the province of the jury in determining facts in this case. [Emphasis added.]
That objection was overruled and no objection was made that Mr. Poston was testifying to any legal opinions.
In view of the limited objection made by counsel for Norwest, we hold that there was no error in allowing Mr. Poston to testify.
V
Does the Montana Unfair Trade Practices and Consumer Protection Act apply to consumer loans by banks?
The CPA prohibits unfair trade practices by entities engaged in “trade or commerce.” “Trade or commerce” is defined as follows:
(6) “Trade” and “commerce” mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state.
Section 30-14-102, MCA.
The first question is whether or not the loaning of money, taking security therefor, and the collection of money, are transactions within the above definition of trade or commerce. This Court has not previously decided this issue. Statutes prohibiting unfair trade practices have been interpreted to be broad in scope and flexible in application so as to respond to human inventiveness. See In re Smith (3rd. Cir. 1989), 866 F.2d 576. The business of mortgage lenders is the sale of a service within the scope of unfair practices acts; see In Re Smith, supra. In the case of Garland v. Mobile Oil Corporation (1972), 340 F.Supp 1095, in which Mobile argued the uniform act does not apply to debtor-creditor relations involving credit card transactions and collections, the court stated as follows:
Only an artificially narrow construction would hold that the statute applies broadly to practices utilized to effect a sale, but cannot reach the practice utilized in its financing.
Garland at 1099. Here the money loaned was used by the consumer at least in part for repairs and a new engine for a private motor vehicle.
Our statute does not in anyway define or limit the words “any services” as used in Section 30-14-102(6), MCA, supra, or as used in Section 30-14-133, MCA, which establishes the cause of action asserted here. Section 30-14-133, MCA, so far as pertinent is as follows:
(1) Any person who purchases or leases goods or services primarily for personal, family, or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act, or practice declared unlawful by 30-14-103 may bring an individual but not a class action -under the rules of civil procedure in the district court of the county in which the seller or lessor resides or has his principal place of business or is doing business to recover actual damages or $200, whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained and may provide such equitable relief as it considers neces- ■ sary or proper.
There is no reason why the word “services” as used in Section 30-14-102(6), MCA, be interpreted differently than as used in Section 30-14-133, MCA.
The approach to defining what is meant by the word “services” in the statute should be broad in scope. See In re Smith, supra. This statute being in derogation of the common law, should be liberally construed with a view to effect its object and to promote justice. See Section 1-2-103, MCA, 1991.
Norwest has cited the case of Riverside National Bank v. Lewis (Tex. 1980), 603 S.W.2d 169, which held that money (borrowing of money) is neither a “good” or a “service” and stated:
Money, as money, is quite obviously neither work nor labor. Seeking to acquire the use of money likewise is not a seeking of work or labor. Rather, it is an attempt to acquire an item of value. We hold that an attempt to borrow money is not an attempt to acquire either work or labor as contemplated in the DTPA.
Riverside at 174.
However, the Texas statute defined more restrictively what services are under the statute. We note that the Riverside case states that seeking to acquire the use of money is an attempt to acquire an item of value. The Riverside case, was later limited to its facts which were the extension of credit unrelated to a specific acquisition. Our Section 30-14-102, MCA, defines “trade” or “commerce” as the “[s]ale, or distribution of... [a] thing of value.”
Later Texas cases expanded the Texas Act to include services of a bank in connection with the extension of credit. See Security Bank v. Dalton (Tex.Ct.App. 1991), 803 S.W.2d 443, 452. This conclusion was arrived at even though the Texas Act defined “services” as follows:
(1) “Goods” means tangible chattels or real property purchased or leased for use.
(2) “Services” means work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods....
(4) (Consumer) means an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business customer that has assets of $25 million or more. . . .
In the case of Pa. Bankers Ass’n v. Com., Bureau of Consumer Protection (1981), 427 A.2d 730, the Commonwealth Court of Pennsylvania held that under the Unfair Trade Practices Act the activity of lending and collecting money is trade or commerce. The court had previously held in Pennsylvania Retailers, etc. v. Lazin (1981), 426 A.2d 712, 718, that lending and collecting money was within the definition of service.
We conclude therefore that the Unfair Trade Practices and Consumer Protection Act applies to consumer loans by banks in the lending and collecting of such loans.
VI
Did Norwest waive the default provisions of the installment note by accepting late payments?
In light of our holding under Issue I, it is not necessary to address this issue.
VII
Should the Bairds be awarded attorney’s fees on appeal?
Norwest maintains that upon reversal, the Court should direct the District Court to award Norwest its attorney’s fees for both the lower court proceedings and the appeal herein.
The Bairds maintain that the parties stipulated and agreed to the amount of attorney’s fees which should be awarded the plaintiffs as prevailing party in the District Court litigation. The Bairds ask this Court to grant them their attorney’s fees necessary to defend this appeal with the proper amount to be determined by stipulation of the parties, or if necessary, by the District Court.
The contract involved here provides for attorney’s fees to the prevailing party. Section 28-3-704, MCA, provides that a contractual right to attorney’s fees is reciprocal. In addition, the CPA, Section 30-14-133, MCA, allows the “prevailing party” to recover attorney’s fees.
The parties entered a stipulation as to attorney’s fees which provides:
COMES NOW the parties above named through their counsel of record and stipulate and agree that Plaintiffs, as prevailing parties in this matter under the contract and Montana Consumer Protection Act claims, are entitled to the sum of Nineteen Thousand Dollars ($19,000) as their reasonable attorney fees and further agree that the judgment entered herein may be amended nunc pro tunc to allow for the addition of that amount of attorney fees.
This agreement is based on Plaintiffs’ status as prevailing party and the amount specified in this agreement has no force and effect should an appeal result in a reversal of Plaintiffs verdict under one or both of the claims giving rise to Plaintiffs rights to attorneys’fees. The amount specified in this agreement applies only to attorney fees incurred through February 15, 1991, the last day of the jury trial in this matter, and does not apply to any attorney fees which may be incurred in post-trial matters, including appeal. The parties agree to deal with all such post-trial attorney fees issues at the appropriate time and before the appropriate court. [Emphasis added.]
Inasmuch as there has been no reversal of the claims under which the prevailing party is entitled to reasonable attorney’s fees, the plaintiffs are entitled to their fees to defend this appeal.
VIII
Did the District Court properly review the punitive damages award?
This Court having reversed the verdict on the tort of fraud, the award of punitive damages is to be vacated and the issue is moot. Due to the fact that the award for punitive damages is vacated and was included in the total award by the jury and the District Court having stated in its order on post-trial motions that it was taking the award into consideration in not awarding treble damages for violation of CPA, we hereby remand to the District Court for consideration in its discretion to award treble damages under Section 30-14-133( 1), MCA, and for such further action as may be necessary in conformance with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and GRAY concur.
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
Cynthia Frydenlund appeals from an order of the Ninth Judicial District Court, Toole County, designating respondent Merlin Frydenlund as primary physical custodian of the parties’ two youngest children. We reverse.
The sole issue on appeal is whether the District Court erred by applying the “best interest” standard contained in Section 40-4-212, MCA.
The parties’ marriage was dissolved on June 20,1985. The District Court awarded Merlin and Cynthia (Cindy) joint custody of their three children, Tiffany, Travis and Tennile, and designated Cindy as the physical custodian. Merlin has enjoyed liberal visitation since the dissolution.
On January 29, 1992, Merlin moved to modify the joint custody award, requesting that the court dissolve joint custody and award him sole custody of Travis, age 11, and Tennile, age 9; he also requested that Tiffany, age 15, be allowed to reside with the parent of her choice. The motion alleged that the children’s circumstances had changed since the decree and that their physical, mental, moral or emotional health was seriously endangered. In his supporting affidavit, Merlin claimed that the children’s desire to live with him, Cindy’s unstable home, an incident of physical abuse to Tiffany, and the children’s adjustment to his household supported his motion.
The District Court heard testimony from numerous witnesses and interviewed Travis and Tennile in camera. The testimony generally established that both parents were fit, caring and loving, and that the children were polite and well-adjusted. After Merlin’s case in chief, and again at the close of testimony, the District Court expressed its intention to use the best interest standard in considering Merlin’s motion. In response, Cindy’s counsel argued that Section 40-4-219, MCA, and more specifically — given Merlin’s motion and testimony— the serious endangerment standard contained therein, applied rather than the best interest standard announced by the court. In closing argument and rebuttal, Merlin’s counsel argued that the children’s present environment with their mother seriously endangered their mental or emotional health.
Did the District Court err by applying the ‘best interest” standard contained in Section 40-4-212, MCA?
Cindy argues that the District Court erred as a matter of law in concluding that Section 40-4-212, MCA, rather than Section 40-4-219, MCA, applied to the case before it. Our standard of review relating to conclusions of law is whether the district court’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.
Insofar as is pertinent here, the District Court began by making the following finding of fact:
6. The Respondent only expressed at trial a desire for a change in primary custodian with reasonable rights of visitation, not sole custody. The Petitioner met this issue with testimony of her own.
Based on that finding, the District Court concluded that pursuant to Rule 15(b), M.R.Civ.P., the issue of modifying only the physical custody provisions of the joint custody decree was raised by the express or implied consent of the parties at the hearing. As a result, the court concluded that the “serious endangerment” standard of Section 40-4-219, MCA, did not apply, and that the proper test was the ‘best interest of the child” standard pursuant to Section 40-4-212, MCA. The District Court modified the joint custody award by designating Merlin as the primary physical custodian of Travis and Tennile and allowing Tiffany to choose her residence. Cindy appeals.
Our analysis begins with the finding set forth above which forms the basis for the conclusions of law at issue. In reviewing a district court’s finding of fact, we apply the clearly erroneous test, the first prong of which is whether the finding is supported by substantial evidence. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. Our review of the record indicates a lack of substantial evidence to support the District Court’s finding.
Merlin’s original motion unequivocally requests that joint custody be dissolved and that he be awarded sole custody of Travis and Tennile on the basis that the children’s present environment “serious ly endangers their physical, mental, moral or emotional health ....” Thus, the motion clearly mirrors the requirements of Section 40-4-219, MCA. Nor did Merlin relinquish his claim for sole custody at the hearing; he reinforced his commitment to sole custody with testimony such as the following:
Q: Have you filed with this Court a motion to modify a prior custody order with respect to Travis and Tennile, to give you sole custody of these children?
A: Yes, I have. [Emphasis added.]
The entire thrust of Merlin’s case reveals his intent to seek sole custody pursuant to Section 40-4-219, MCA. He farther testified that:
(1) Cindy is not mentally stable enough to provide for the needs of the children;
(2) Cindy physically abused Tiffany in front of the younger children;
(3) Cindy’s younger boyfriend spends the night at her house, which he feels is not a good environment for the children; and
(4) The children’s strong desire to live with him would result in serious endangerment of their mental or emotional health if custody is not modified.
Finally, Merlin’s counsel in closing argument continued to stress that the children’s present environment with their mother seriously endangered their mental or emotional health, echoing the requirements of Section 40-4-219, MCA.
The District Comet’s finding that Merlin “only expressed at trial a desire for a change in primary custodian with reasonable rights of visitation, not sole custody” is devoid of support in the record. Therefore, we conclude that the finding is clearly erroneous.
Based on this erroneous finding, the District Court concluded that the issue of modifying only the physical custody provisions of the joint custody decree was raised by express or implied consent of the parties at the hearing, citing Rule 15(b), M.R.Civ.R That conclusion is erroneous as a matter of law. As discussed, Merlin himself did not “consent” to that issue. More importantly, even if Merlin had consented to revising the issue before the court, Cindy clearly did not do so. Indeed, Cindy’s counsel reiterated objections to the court’s use of the “best interest” standard at every juncture. No consent of the parties exists in this case upon which the court properly could characterize the issue before it as one of modifying physical custody only. Therefore, the District Court’s application of Rule 15(b), M.R.Civ.P., was in error.
The issue before the District Court was whether to dissolve joint custody and award sole custody of Travis and Tennile to Merlin. Montana law is clear that, where a joint custodian seeks to terminate joint custody and obtain sole custody, Section 40-4-219, MCA, applies. See Section 40-4-224(3), MCA; In re Marriage of Gahm (1986), 222 Mont. 300, 722 P.2d 1138; Keil v. Ferguson (1990), 246 Mont. 344, 805 P.2d 1334. Thus, the court erred in applying only the best interest standard of Section 40-4-212, MCA.
Merlin argues, somewhat disingenuously given the posture of his case throughout the District Court proceedings, that the court merely modified physical custody of Travis and Tennile and, therefore, that it did not err in applying Section 40-4-212, MCA. He directs our attention to a number of cases in which we have stated that modification of the physical custody provisions of a joint custody award, as opposed to termination of joint custody, is governed by Section 40-4-212, MCA. Merlin’s characterization of the cases is correct; however, the cases are distinguishable.
For example, in In re Marriage of Johnson (1989), 238 Mont. 153, 777 P.2d 305, the father moved to modify the physical custody provisions of the joint custody award. We focused on the nature of his motion and concluded that Section 40-4-212, MCA, rather than Section 40-4-219, MCA, was applicable because the motion sought only a modification of physical custody. Id. at 156. Similarly, when a father petitioned the court for clarification of the physical custody arrangements of a joint custody award, we again affirmed the district court’s application of the best interest standard of Section 40-4-212, MCA. In re Custody of J.H. (1988), 231 Mont. 301, 303, 752 P.2d 194, 195. The moving parties in J.H. and Johnson did not actively seek dissolution of the joint custody and granting of sole custody as Merlin did in this case.
As discussed above, the case presented to the District Court, and the issue before it, was a motion to terminate joint custody and to award sole custody to Merlin. Rule 15(b), M.R.Civ.P, did not operate to alter or amend the issue. A district court’s acts must be within the issues presented to the court. In re Custody of C.S.F. (1988), 232 Mont. 204, 209, 755 P.2d 578, 582 (citations omitted).
Finally, Merlin argues, under both the “serious endangerment” and the “integration” factors, that the requirements of Section 40-4-219, MCA, were met. We decline to address this argument absent an opportunity for the District Court to do so first on the record before it.
Reversed and remanded for findings and decision pursuant to Section 40-4-219, MCA.
CHIEF JUSTICE TURNAGE, JUSTICES WEBER, McDONOUGH and HUNT concur.
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JUSTICE HUNT
delivered the opinion of the Court.
Appellants George and Mary Rivera appeal from the decision of the District Court of the Fourth Judicial District, Ravalli County. This dispute arose out of a contract to buy and sell certain land in Ravalli County, Montana. The District Court refused to grant Riveras’ rescission of the contract and awarded respondents, Brien and Gayle Weber, liquidated damages in the amount of $43,000. We affirm in part and reverse in part.
There are two issues before the Court:
1. Was the District Court clearly erroneous in denying Riveras the right to rescind the contract?
2. Did the District Court incorrectly find the liquidated damages clause of the contract valid under § 28-2-721, MCA?
Brien and Gayle Weber listed their ranch property, located in Ravalli County, for sale in June 1990. The Weber family had owned the ranch property since 1911 and had lived in the residence located on the property since 1915. In June 1990, Maty Rivera was shown several properties in the area by a sales representative of a local real estate agency, including the Webers’ ranch property. In July 1990, Mary Rivera travelled from California to Montana with her husband George, to again view several properties in the Ravalli County area. The Weber property was one of the properties the Riveras were to view.
The District Court found that prior to viewing the Weber ranch property, George Rivera questioned the sales representative concerning the water used for the residence located on the property. The sales representative replied that although the water would not “test out,” the Weber family had been using it for three generations and that to the best of their knowledge no one had ever had any problems. Upon arriving at the property, George Rivera asked Brien Weber about the water. Weber replied that his family had been drinking the water for years without any difficulty, but that it would not test out. It is not clear that the actual source of the water was adequately explained to the Riveras. The Riveras deny that at that time they were told the water would not test out.
On July 17, 1990, the same day they both viewed the property, the Riveras made an offer to purchase the property for $430,000. They then signed a form contract provided and required by United National Real Estate, a national company of which the local real estate agency was a member. The Riveras made an initial deposit of $5000 earnest money at the time they signed the contract. Shortly thereafter, the Webers executed the contract. The contract entered into by the parties had a clause which stated that if either party failed to complete the transaction they would be required to pay to the other party ten percent of the purchase price as “liquidated damages.”
In early August 1990, Mary Rivera returned to Montana to obtain water samples for testing. The sales representative told her that she was wasting her time because, as he had previously indicated, the water would not check out. On August 7, 1990, the Riveras received the results of the water tests. The tests indicated the water was contaminated. On August 13,1990, the Riveras communicated to the sales representative their intent that the contract be voided and that the $5000 deposit be returned. The Riveras then received several letters from the Webers’ counsel. The Webers denied making any misrepresentations concerning the quality of the water, but suggested that something could be worked out regarding the costs of putting a well on the property. Additionally, the Webers reiterated that the contract called for a closing date of September 1, 1990, and that they were still willing to close the transaction on that date. The closing did not occur on September 1, 1990.
The Webers brought suit on October 24, 1990, alleging breach of contract and seeking to enforce the liquidated damages clause in the contract. The Riveras filed an answer and counterclaim alleging that the liquidated damages provision was actually an invalid penalty clause. The Riveras raised the affirmative defenses of constructive fraud and mistake of fact. In the counterclaim, the Riveras alleged negligent representation by both the Webers and the sales representative. Abench trial was held on November 22,1991. The District Court entered judgment for the Webers on March 3, 1992. The court concluded that the Riveras had failed to perform their obligations under the contract and awarded $43,000 in liquidated damages. The Riveras took nothing under their counterclaim. The Riveras appeal.
I
Was the District Court clearly erroneous in denying the Riveras the right to rescind the contract?
The District Court found that the Riveras were not entitled to rescind the contract in question. On appeal, this Court will not disturb the District Court’s findings of fact in a bench trial unless they are clearly erroneous. In the Matter of the Mental Health of E.P. (1990), 241 Mont. 316, 787 P.2d 322; Rule 52(a), M.R.Civ.P. This Court will also give due regard to the opportunity of the District Court to judge the credibility of the witnesses. In the Matter of the Mental Health of R.J.W. (1987), 226 Mont. 419, 736 P.2d 110.
The Riveras contend that pursuant to § 28-2-401, MCA, their consent to the contract was neither real nor free because of constructive fraud on the part of the Webers and because of mistake. § 28-2-1711, MCA, allows a party to rescind a contract if that party’s consent was given by mistake or obtained through fraud. The Riveras argue that the quality of the water was misrepresented, either intentionally or unintentionally, prior to the time they entered the contract. They also contend that had they known the true nature of the water on the Weber property they would never have contracted to buy the property. At trial, the parties offered conflicting testimony as to their discussions concerning the water prior to entering the contract.
The Webers and the sales representative testified that prior to entering into the contract, the Riveras were told that although the water would probably not test out, the Weber family had been drinking it without problems for generations. The Riveras testified that they were not given this information -until after they had entered the contract. In fact, the Riveras testified that prior to entering into the contract they were led to believe by the Webers that the water was fine. The record does not indicate that the source of the water was clearly explained to the Riveras. However, it was the quality of the water and not its source, which was the basis for the Riveras’ decision to seek rescission of the contract.
The resolution of this issue depends upon a factual determination as to what was actually said concerning the water quality prior to the execution of the contract. If the Webers did communicate to the Riveras that the water would not test out, then there is no basis upon which to allow the Riveras to rescind the contract.
The District Court resolved this factual dispute in favor of the Webers, finding that they did communicate to the Riveras that the water would not test out. The District Court, having had the opportunity to observe and judge both the demeanor and credibility of the witnesses, was in a position superior to this Court to make such a factual finding. The District Court was not clearly erroneous in finding that the Riveras were not entitled to rescission of the contract.
II
Did the District Court incorrectly find the liquidated damages clause of the contract valid under § 28-2-721, MCA?
The District Court concluded that the Webers were entitled to $43,000 in liquidated damages. On appeal, the Riveras have requested that this Court review this conclusion of law. Our standard of review of questions of law is simply whether the District Court’s interpretation of the law is correct. Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522. The basis for this standard of review is that no discretion is involved when a tribunal arrives at a conclusion of law. The tribunal either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
The contract between the Webers and the Riveras contained a clause which stated that:
It is agreed that if either seller or buyer fails or neglects to perform his part of this agreement he shall forthwith pay as liquidated damages to the other party a sum equal to ten percent of the agreed price of sale.
Based on this clause, the District Court awarded $43,000 in liquidated damages to the Webers. The Webers contend on appeal that the clause was a valid liquidated damages provision under Montana law. The Riveras allege the clause was in reality a penalty clause and is void under existing Montana law. § 28-2-721, MCA, provides that:
(1) Every contract by which the amount of damage to be paid or other compensation to be made for a breach of an obligation is determined in anticipation thereof is to that extent void, except as expressly provided in subsection (2).
(2) The parties to a contract may agree therein upon an amount which shall be presumed to be an amount of damage sustained by a breach thereof when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.
As set out in the statute, a contractual provision in Montana purporting to set out in advance the amount of damages payable upon a breach of the contract is void. However, an exception is provided for situations in which the parties have agreed in advance on an amount of damages because it would be impracticable or extremely difficult to fix the actual damages. This Court has previously explained in interpreting this statute that:
“Whether the forfeiture provision imposed a penalty, or provided for liquidated damages, is to be determined from the language and subject matter of the contract, the evident intent of the parties and all the facts and circumstances under which the contract was made. The most important facts to be considered are whether the damages were difficult to ascertain, and whether the stipulated amount is a reasonable estimate of probable damages or is reasonably proportionate to the actual damages sustained at the time of the breach.”
Morgen and Osgood v. Big Sky of Montana (1976), 171 Mont. 268, 273, 557 P.2d 1017, 1020 (quoting Waggoner v. Johnston (Okl. 1965), 408 P.2d 761, 769).
In this case, the provision for liquidated damages was contained in a form contract prepared and required by United National Real Estate. There was absolutely no attempt on the part of the parties prior to entering the contract to reasonably estimate what the damages might be in the event of a breach. Both the Webers and the sales representative testified that they had no idea how the amount in the provision was even chosen. Pursuant to the provision, the Webers were entitled to $43,000 regardless of whether they were able to resell the property the next week, the next month, or the next year. They would have been entitled to the $43,000 even if they found a subsequent purchaser willing to pay more than the Riveras. In short, the provision provided for a set amount of damages without any regard for or attempt to determine what the actual damages might be.
Despite the lack of any evidence in the record indicating that an attempt was made to reasonably estimate the damages upon breach of the contract, the Webers argue on appeal that it would have been extremely difficult to determine what the actual damages might have been in this situation. The Webers point out that this Court has previously upheld a liquidated damages clause in a similar situation involving a contract for the sale of land. Erickson v. First Nat’l. Bank of Minneapolis (1985), 215 Mont. 350, 697 P.2d 1332. Additionally, the Webers point out that it appears as if the amount of damages specified in the provision approximate those actually suffered. The Webers argue that this weighs heavily in favor of the provision being interpreted as a valid liquidated damages provision. However, any relationship between the amount of actual damages suffered and the amount specified in the provision is merely a fortuitous coincidence and not the result of a reasonable estimate in advance to determine what the damages might be. The fact that the liquidated damage provision in this case may approximate the actual damages suffered, is insufficient by itself to create a valid liquidated damages provision. Our decision in Morgan, along with the applicable statute, makes it clear that other factors must also be considered. In this case, it is clear from the subject matter, the surrounding circumstances, and the intent of the parties that the provision was simply a penalty clause and as such is void under Montana law. This matter must be remanded to the District Court for a determination of the actual damages suffered by the Webers as a result of the breach of contract by the Riveras.
This matter is affirmed in part and reversed in part and is remanded to the District Court for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, TRIEWEILER, McDONOUGH and WEBER concur.
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JUSTICE WEBER
delivered the Opinion of the Court.
A jury in the Eighth Judicial District Court, Cascade County, Montana, convicted Richard J. Fertterer, Sr. of seven misdemeanor fish and game violations and two counts of felony criminal mischief. This jury also found David John Fertterer guilty of four misdemeanor fish and game violations and two counts of felony criminal mischief. Defendants appeal the felony convictions and the sentence imposed by the District Court. We affirm in part and reverse in part.
The Fertterers raise the following issues for our review:
1. Are wild animals “public property” within the purview of Sec. 45-6-101, MCA?
2. Does Title 87, MCA, provide an exclusive remedy for the illegal taking of game?
3. Are wild animals property within the definition of Sec. 45-2-101(54), MCA?
4. Is Montana’s criminal mischief statute, as applied to the Fertterers, unconstitutionally vague?
5. Did the District Court properly charge the Fertterers with the costs of investigation?
6. Did the District Court properly charge Fertterers with jury costs?
From November 1989, through August 1990, the Department of Fish Wildlife and Parks (FWP) conducted an undercover investigation of a large scale poaching operation run by the Fertterers. During the investigation FWP agents, posing as out-of-state hunters, had extensive contact with the defendants. At trial, agents testified they were actively guided by the Fertterers during two separate five-day hunts. Neither defendant had an outfitter license. In addition, agents testified that during those hunts, Fertterers were spotlighting and killing game without proper tags, illegally trapping bear, soliciting the sale of an illegally killed mountain lion hide, and attempting to sell approximately 1000 pounds of deer and elk meat to an Illinois FWP agent posing as an owner of a meat market.
The jury convicted Richard Fertterer of two counts of felony criminal mischief for illegally killing three elk, six deer and three antelope. It also convicted him of several misdemeanors under Title 87, MCA, including: two counts of outfitting without a license; two counts of unlawfully selling, transporting and possessing game; two counts of hunting with aid of artificial light; and one count of unlawfully trapping game animals.
Likewise, the jury convicted David John Fertterer of two counts of felony criminal mischief for unlawfully killing one mountain lion and three elk. He was also convicted of several misdemeanors under Title 87, MCA, including: guiding without a license, unlawful sale or possession of game, hunting with aid of artificial light, and unlawful trapping of game animals.
Fertterers contend they were wrongfully convicted of felony criminal mischief where wild animals are not properly classified as property or public property within Montana’s criminal code. In the alternative defendants claim the criminal mischief statute is unconstitutionally vague as applied to Fertterers and violates the legislative intent of Title 87, MCA.
As a condition of the Fertterers’ partially suspended sentences, the District Court charged both defendants with the cost of the jury trial, investigation expenses incurred by FWP, and restitution for the value of the wild game they illegally killed. Defendants argue the court improperly charged them with jury costs where the state improperly tried and convicted them of criminal mischief, and that the costs were excessive due to the length of the trial and the change of venue caused by the State’s excessive publicizing of the case. Finally they contend the court wrongfully charged them with investigative costs incurred by FWP prior to filing an information.
I
Are wild animals “public property’ within the meaning of Sec. 45-6-101, MCA?
Section 45-6-101(l)(a), MCA, provides:
(1) A person commits the offense of criminal mischief if he knowingly or purposely:
(a) injures, damages, or destroys any property of another or public property without consent;...
In this instance, defendants contend the District Court incorrectly instructed the jury that wild animals in Montana are owned by the State and are public property. Fertterers argue that the State has no title ownership in the wild animals within its borders; thus, the animals are not owned by the State.
Although the criminal code fails to define “public property’, it offers some other definitions regarding ownership which are helpful in defining “public property” under Montana’s criminal code.
Section 45-2-101(46), MCA, defines owner as follows:
“Owner” means a person other than the offender who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.
Under this definition, ownership is not limited to title ownership such as that applied to the ownership of real property or to personal property such as cattle or other livestock. The statute recognizes that a lesser interest than title ownership is sufficient as an ownership interest in property crimes.
In State v. Tome (1987), 228 Mont. 398, 742 P.2d 479, this Court recognized that an interest less than title ownership was sufficient to prove ownership for the purpose of Montana’s criminal mischief statute. Tome, 228 Mont. at 401, 742 P.2d at 481. In that case, the defendant was charged with felony criminal mischief for $191 in vandalism damages to a city building and $359 in damages to a vending machine leased by a golf pro employed by the city. The defendant argued that the lower court incorrectly considered $359 in damages to the machine in convicting him of felony criminal mischief. This Court held that mere possessory ownership is sufficient to show ownership under the criminal mischief statute.
Similarly here, the State need not prove it had title ownership interest in wild game within its borders. As stated in Sec. 45-2-101(46), MCA, the State is an owner of the property if, without the State’s consent, the Fertterers had no authority to exert control over the game.
Next Section 45-2-101(55), MCA, defines property of another as follows:
“Property of another” means real or personal property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender himself may have an interest in the property.
Again, this definition focuses not on title ownership of the property but on a superior interest. Under this definition, the State need only prove that it had an interest in the wild game which the Fertterers had no authority to either defeat or impair. Once again under the definition of § 45-2-101(55), MCA, the State need not prove it has title ownership to the game to be classified as an owner.
While the criminal code does not require the State to prove title ownership, the State must prove it possesses an interest superior to the interest of the Fertterers. We conclude that under the statutes and cases of Montana, the State has a superior interest under the ownership theory and also has such an interest by virtue of its police power to regulate the taking of game.
A brief historical analysis shows that beginning with Geer v. Connecticut (1896), 161 U.S. 519, the United States Supreme Court recognized that the states had a right to regulate the taking of game within their borders. This regulatory power was derived from the states’ “title ownership” in the game, and also from the states’ police power. In Geer, the Court determined that a Connecticut law prohibiting the taking of game birds outside its borders did not violate interstate commerce. That court likewise relied on the title ownership theory in subsequent federal cases including Baldwin v. Montana (1978), 436 U.S. 371. In Baldwin, the Court recognized Montana’s interest in regulating the taking and preserving the game animals within its borders. It held that Montana’s disparate licensing fees between resident hunters and non-resident hunters did not violate the privileges and immunities clause of the Constitution or the equal protection clause. In the 1979 case of Hughes v. Oklahoma (1979), 441 U.S. 322, the United States Supreme Court concluded that an Oklahoma law which prohibited the transporting of live minnows across state lines into Texas violated the interstate commerce clause. As a part of that opinion, it expressly abandoned the title ownership theory as promulgated in Geer. The defendants argue that the Hughes decision effectively precludes Montana from convicting them of criminal mischief for destroying public property.
The State contends there are no federal constitutional questions of interstate commerce, equal protection, or privileges and immunities; and as a result, Hughes is not controlling. We agree with that contention. There is no federal constitutional issue or other federal question presented in the present case. As a result, the holding in Hughes is not controlling here. We do point out that as we compare Hughes to Baldwin, we are not certain the holding expressed in this case would be found to contradict Hughes.
Montana has long recognized that Montana has the power to regulate game animals under both a title ownership and police power theory. In Rosenfeld v. Jakways (1923), 67 Mont. 558, 216 P. 776, this Court stated the rule very clearly as follows:
That the ownership of wild animals is in the state, held by it in its sovereign capacity for the use and benefit of the people generally, and that neither such animals nor parts thereof are subject to private ownership except in so far as the state may choose to make them so, are principles now too firmly established to be open to controversy. (Geer v. Connecticut, 161 U.S. 519, 40 L.Ed. 793, 16 Sup.Ct.Rep. 600, [See, also, Rose’s U.S Notes]; 12 R.C.L. 691-703.) If the state so elects it may prohibit absolutely the killing of such . animals, or it may regulate the killing and prohibit the sale in this state of such animals or the parts, whether the animals were killed within or without the state. It may grant or withhold the right to hunt, and if it grants the right at all it may do so upon such terms and conditions as it sees fit to impose so long as constitutional limitations or guaranties are not infringed. Aside from any question of common ownership, the state may exercise these rights in virtue of its police power. There is practically not any dissent from these general propositions. (Emphasis supplied.)
The State’s ownership in wild game for the use and benefit of its people was affirmed in Heiser v. Severy (1945), 117 Mont. 105, 158 P.2d 501, and again in State ex rel. Visser v. State Fish and Game Comm’n, 150 Mont. 525, 437 P.2d 373. In Visser, this Court confirmed the State’s ownership of wild game as long as those regulations do not violate the Constitution.
Montana’s case law affirming the State’s property interest in wild game is consistent with case law from other jurisdictions, including Washington, Colorado, Oregon, Indiana, Texas, Michigan and Alabama. In State v. Gillette (Wash. 1980), 621 P.2d 764, Washington sued and recovered damages from property owners whose reconstruction of a stream bank resulted in the killing of salmon. That court concluded that Washington had standing to sue. It held: “food fish of the state are the sole property of the people of the state ...” Likewise in Collopy v. Wildlife Comm’n (Colo. 1981), 625 P.2d 994, that court upheld a regulation prohibiting hunting within a specific area. The court recognized that the ownership of wild game is in the state for the benefit of all the people. Finally, in Rogers v. State (Ala.App. 1985), 491 So.2d 987, that court stated: The authority of the state to regulate hunting ... derives from the long established and well recognized principle of law that ownership of wild animals is vested in the state." See also, Ridenour v. Furness (Ind.App. 1987), 504 N.E.2d 336; Wiley v. Baker (Tex.App. 1980), 597 S.W.2d 3; and Glave v. Michigan Terminix Co. (Mich.App. 1987), 407 N.W.2d 36.
In accordance with the above cited Montana cases, and consistent also with Baldwin, we hold that Montana has an ownership interest in wild game held by it in its sovereign capacity for the use and benefit of the people. We further hold that under its police powers, which extend to such wild game, the State may prohibit the killing of wild game and regulate the killing of the same. We hold that wild animals are public property within the meaning of Montana’s criminal mischief state, and that Montana’s interest in such public property is superior to the interest of the Fertterers.
II
Does Title 87, MCA, provide an exclusive remedy for the illegal taking of game?
First, Fertterers contend the State cannot charge them under Title 45 where Title 87 provides a more specific definition of the conduct. The State contends that the prosecutor has the discretion to charge under any statute. We agree with the State. This Court most recently affirmed the prosecutor’s discretion to charge in State v. Brady (1991), 249 Mont. 290, 816 P.2d 413. In Brady the defendant claimed he should have been charged under the more specific crime of domestic abuse rather than aggravated kidnapping. We affirmed the conviction and upheld the prosecutor’s discretion to charge any offense as long as the defendant’s conduct meets the elements of the crime. As in Brady, here we conclude that the prosecutor had the discretion to charge the Fertterers under Title 45, Montana’s criminal code.
Next, Fertterers contend that charging them with felony criminal mischief circumvents the will of the legislature. Defendant’s further claim the result, a felony conviction in District Court, is manifestly unjust where Title 87, MCA, only exposes them to misdemeanor penalties. The State contends that Title 87, MCA, does not provide an exclusive remedy, thus Fertterers’felony convictions were a proper result. Section 87-1-102, MCA (1989), provides in pertinent part:
(1) A person violating any provision of this title, any other state law pertaining to fish and game, or the orders or rules of the commission or department is, unless a different punishment is expressly provided by law for the violation, guilty of a misdemeanor ... (Emphasis supplied.)
We affirm the conclusion of the District Court and resulting felony convictions. In this case a “different punishment” had been expressly provided in Title 45, MCA. We further conclude that none of the sections of Title 87 comprehensively define the Fertterers’ conduct. We conclude the legislature did not intend the misdemeanor provisions of Title 87 to constitute the exclusive punishments for fish and game violations.
We hold Title 87, MCA, does not provide an exclusive remedy for the illegal taking of game.
III
Are wild animals property within the definition of § 45-2-101(54), MCA?
Fertterers contend wild animals are not property within the definition of § 45-2-101(54), MCA. Section 45-2-101(54)(h), MCA, defines property as: “any tangible or intangible thing of value .... Property includes but is not limited to: birds, animals, and fish which ordinarily are kept in a state of confinement; ...” [Emphasis added.] Although Fertterers agree this is a non-exclusive list, they argue that by including domestic animals in the category, the legislature clearly intended to exclude wild game from the definition of property. Once again, we disagree with the defendants. We conclude that property under this section is defined broadly enough to include wild game.
Fertterers further argue that wild animals are not public property within the meaning of § 70-1-104, MCA, and § 70-2-111, MCA. We conclude definitions of Title 70, MCA, are not controlling in Montana’s criminal code. We hold that wild animals are property within the definition of § 45-2-101(54), MCA.
IV
Is Montana’s criminal mischief statute, as applied to the Fertterers, unconstitutionally vague?
Fertterers contend that the criminal mischief statute, as applied, is unconstitutionally vague and violates due process. Fertterers cite two Ninth Circuit cases defining vagueness. First, a statute is void for vagueness if it fails to give a person of ordinary intelligence notice of the illegal conduct. United States v. Dupree (9th Cir. 1976), 544 F.2d 1050,1051. Next they cite United States v. Stenberg (9th Cir. 1986), 803 F.2d 422, which held that statutes must apply explicit standards to avoid arbitrary and discriminatory applications. In essence, Fertterers argue that although they knowingly violated misdemeanor statutes under Title 87, MCA, they were not provided sufficient notice that their conduct violated Montana’s criminal mischief statute. We do not find this argument compelling.
As stated previously, wild animals are public property within the meaning of § 45-6-101, MCA, and the definitions in Title 45, MCA, provide sufficient notice that wild animals are public property within the criminal code. Thus, reasonable persons would have realized that the conduct of destroying wild animals without the consent of the State, specifically violated § 45-6-101(l)(a), MCA. Further, Montana’s criminal mischief statute applies explicit standards which prevent arbitrary and discriminatory application.
We hold that the criminal mischief statute as applied to the Fertterers does not violate due process.
V
Did the District Court properly charge the Fertterers with the costs of the investigation?
Section 46-18-232(1), MCA, provides:
A court may require a convicted defendant in a felony or misdemeanor case to pay costs, as defined in 25-10-201, plus costs of jury service as part of his sentence. Such costs shall be limited to expenses specifically incurred by the prosecution in connection with the proceedings against the defendant.
Section 25-10-201, MCA, specifies costs generally allowable. That section does not include investigative costs incurred prior to the State’s filing of an information.
Although this is a case of first impression in Montana, this Court has held that in civil cases, statutory authority must exist in order for the district court to award costs. Masanovich v. School Dist. No. 1 (1978), 178 Mont. 138, 582 P.2d 1234. Oregon has not allowed the state to recover costs of police investigations incurred prior to the filing of the information. State v. Haynes (Or.App. 1981), 633 P.2d 38. We adopt the holding in Haynes and conclude the District Court improperly charged the Fertterers with the investigative costs expended prior to the filing of the information.
Oregon has recognized an exception to that general rule. As stated in State v. Pettit (Or.App. 1985), 698 P.2d 1049, Oregon allowed the state to recover money paid directly to the defendants as part of an undercover drug investigation as restitution. The State argues in the present case that under the restitution theory of Pettit it should be allowed to recover cash amounts paid by the State to Fertterers through its undercover agents.
We likewise approve of the Pettit exception to Haynes and conclude that here restitution is appropriate under the Pettit analysis. We further conclude that such restitution should be limited to amount paid directly to the Fertterers for guided hunts and for meat and animal parts purchased in the undercover investigation. We remand to the District Court in order that it may determine the extent of the restitution to be allowed to the State under this theory.
VI
Did the District Court properly charge Fertterers with jury costs?
[12] The pertinent statute on the issue of payment of costs by a defendant is § 46-18-232, which in pertinent part provides:
Payment of costs by defendant. (1) A court may require a convicted defendant in a felony or misdemeanor case to pay costs, as defined in 25-10-201, plus costs of jury service as a part of his sentence. Such costs shall be limited to expenses specifically incurred by the prosecution in connection with the proceedings against the defendant.
(2) The Court may not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take into account the financial resources of the defendant and the nature of the burden that payment of costs will impose.
(3) A defendant who has been sentenced to pay costs and who is not in default in the payment thereof may at any time petition the court that sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs. ... (Emphasis added.) In two different cases the constitutionality of the foregoing statute
has been upheld against claims of a violation of due process rights under the Constitution. State v. Weinberger (1983), 204 Mont. 278, 306, 665 P.2d 202, 217; State v. Pease (1987), 227 Mont. 424, 434, 740 P.2d 659, 665.
The primary argument on the part of the defendants is that the due process rights of the defendant were denied when they were required to pay costs attended to a change of venue where pretrial publicity requiring the change was created and encouraged by the State. Defendants urge this Court to adopt a rule which would not allow costs to be awarded where the State was primarily responsible for extensive pretrial publicity.
As pointed out by the State, the record does not contain any evidence to support the contention that the State was primarily responsible for pretrial publicity and the State vigorously contests such factual assertions. The State properly points out that no motion concerning this issue was made to the District Court and no hearing was requested on this issue in the District Court. As a result, there are no findings and conclusions of the District Court for this Court to review, nor is there any hearing record containing testimony from witnesses. We conclude that the State is correct that the assertion that the State somehow caused the extensive pretrial publicity is not sufficient to raise an issue on the matter of jury costs. As a result we will not consider this for the first time on appeal.
We conclude that the plain and unambiguous language of § 46-18-232, MCA, establishes that the District Court properly assessed all costs associated with jury service.
We hold the District Court properly charged Fertterers with jury costs.
The District Court is affirmed with the exception of our remand for recalculation of restitution under Part V.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON AND McDonough concur.
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] |
JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from a judgment of the First Judicial District Court, Lewis and Clark County, convicting Larson of negligent endangerment in violation of Section 45-5-208, MCA. Affirmed.
The issues on appeal are:
1. Whether a trial judge may allow the prosecution to compare the blood alcohol level of a defendant in a non-DUI case with the blood alcohol level that the scientific community has determined will impair a person’s ability to drive an automobile.
2. Whether the jury heard sufficient evidence to find that Larson acted negligently.
On July 21,1991, five-year old Brenda Perry suffered fatal injuries when a horse she and Myron Larson were riding reared and fell backward, crushing Brenda. She died a short time later of internal bleeding.
The accident occurred during a barbecue at a rural home near Helena. Larson attended the barbecue with his son, his girlfriend Kate Perry, and Kate’s children. Brenda was one of Kate’s children.
Larson had consumed several alcoholic beverages that day. He testified that he drank four sixteen-ounce cans of beer and two shots of whiskey. The coroner, however, testified that Larson admitted to drinking six or seven cans of beer and two shots of whiskey.
Larson saw the hostess, Heidi St. Germaine, riding a horse named Taz and asked St. Germaine if he could ride the animal. Before St. Germaine allowed Larson to ride Taz, she gave him instructions on handling the horse. She told Larson that Taz was “inexperienced” and “hot-blooded.” She also told him that Taz did not like to have her mouth tugged by the reins.
Larson rode the horse for a while, then returned to talk to St. Germaine. Larson asked her if his son could go for a ride. St. Germaine testified that she told Larson she did not want children riding the horse. She also testified that she told him the horse did not like anything, even saddle bags, behind the saddle. Larson, on the other hand, testified that St. Germaine told him she did not want children on the horse alone. He also testified that she said nothing about riding double.
Moments later, Brenda said that she wanted a ride. Kate Perry, Brenda’s mother, lifted Brenda onto the horse. She grabbed Larson around the waist and gripped the horse’s flanks with her legs. The horse began to “crow-hop,” so Larson pulled back on the reins. The horse reared straight up and fell backward onto Larson and Brenda. A bystander rushed Brenda to the hospital, but she died of internal injuries.
At the hospital, law enforcement officers requested that Larson submit to a blood test, because a strong odor of alcoholic beverage emanated from his breath. Larson refused, stating either, “It’s obvious that I’ve been drinking” or, “Can’t you see I’m drunk.”
After the officers got a search warrant, a lab technician drew a blood sample from Larson. By then, over three hours had elapsed since the accident. Lynn Kurtz, a forensic scientist for the State Crime Lab, measured Larson’s blood alcohol content at .17 grams of alcohol per 100 milliliters of blood. Kurtz estimated that Larson had a blood alcohol content between .20 and .27 at the time of the accident.
At trial, Larson objected to any discussion of the statutory level of intoxication sufficient for an inference that a DUI defendant is under the influence of alcohol. The court sustained the objection.
The court, however, permitted Kurtz to compare Larson’s blood alcohol level with the level that the scientific community has determined will impair a person’s ability to drive a motor vehicle. Kurtz testified that the scientific community has determined that a blood alcohol level of .08 grams of alcohol per 100 milliliters of blood will impair a person’s ability to safely operate a motor vehicle.
In addition to the physical effects of alcohol, Kurtz testified concerning the effect of alcohol on a person’s reasoning and judgment. He said that a person with a blood alcohol level as low as .05 “will do stupid things.”
The prosecution argued that Larson made mistakes in judgment due to his alcohol consumption. In closing, the prosecution mentioned to the jury that Larson’s blood alcohol level at the time of the accident was three times the level that will impair a person’s ability to drive an automobile. The prosecution also argued that a person who is too impaired to drive an automobile safely is too impaired to ride a horse safely, and certainly is too impaired to allow a five-year old child on a high-spirited horse with him. The prosecution closed by stating:
[Ufs not a crime to put a child on a horse. That’s true. It’s not. It’s not a crime to drive an automobile. But had Myron Larson been .17, gets in a car, runs off the interstate, plows into another car and people are killed, we wouldn’t have any trouble with that. He would be held accountable for his own acts. I submit to you this is the same situation. He engaged in a course of conduct that created a substantial risk of death for this child. He should be held accountable.
The jury found Larson guilty of negligent endangerment in violation of Section 45-5-208, MCA. This appeal follows.
I.
May a trial judge allow the prosecution to compare the blood alcohol level of a defendant in a non-DUI case with the blood alcohol level that the scientific community has determined will impair a person’s ability to drive an automobile?
We have consistently held that a trial judge has great discretion in ruling on the admissibility of evidence. State v. Oman (1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119 (citing cases). This Court will overturn a trial judge’s determination of the admissibility of evidence only for an abuse of discretion. Oman, 707 P.2d at 1119.
Larson contends that “blood alcohol standards, which establish whether a person is too impaired to drive safely, apply only in cases involving a charge of driving under the influence.” He reasons that a comparison between the blood alcohol level which impairs one’s ability to drive, and Larson’s blood alcohol level on the day of the accident is actually a “DUI-type presumption” in disguise.
To support his contention, Larson relies on cases concerning a statute that, at one time, created a presumption of intoxication if a DUI defendant had a certain blood alcohol level. See generally Section 61-8-401, MCA; State v. Morgan (1982), 198 Mont. 391, 646 P.2d 1177; State v. Leverett (1990), 245 Mont. 124, 799 P.2d 119. In Leverett, this Court held it was unconstitutional, thus reversible error, to give a jury instruction that raised a mandatory rebuttable presumption of an element essential to a criminal charge. 799 P.2d at 124. In Morgan, we noted that after a court has held that the jury would not be instructed on the presumed level of intoxication, a prosecutor should not refer to such a presumption. In that case, despite a pre-trial order forbidding it, the prosecutor repeatedly referred to the blood alcohol level that gave rise to a presumption of intoxication. Morgan, 646 P.2d at 1181-82.
Neither case applies to the case at hand. Montana’s statute no longer mandates a presumption that a DUI defendant with a certain blood alcohol content is intoxicated. Rather, it allows the trier of fact to infer that a person with a certain blood alcohol level is under the influence of alcohol for purposes of the DUI law. See Section 61-8-401(4)(c), MCA. The prosecution did not mention the contents of the statute after the court sustained Larson’s objection to any mention of the statute. Therefore, Larson’s contention that a comparison of a non-DUI defendant’s blood alcohol level with the level which will impair a driver is actually a “DUI-type presumption” is unfounded.
Larson also contends that the level of blood alcohol which will impair a person’s ability to drive is irrelevant to his conduct relative to a high-spirited young horse. On the contrary, “[rjelevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid.
The test of relevance is whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used to measure this acceptable probative value is ‘any tendency to make the existence of any fact... more probable or less probable than it would be without the evidence’.
State v. Fitzpatrick (1980), 186 Mont. 187, 207, 606 P.2d 1343, 1354 (quoting M.R.Evid. Commission Comments).
At Larson’s trial, the prosecution offered his blood alcohol level to show that alcohol had impaired his reactions and judgment when he chose to ride double on a high-spirited horse with a young girl. Larson’s blood alcohol level on the day of the accident is relevant.
The comparison of Larson’s blood alcohol level with that which the scientific community has determined will impair a person’s ability to drive a motor vehicle is also relevant. The comparison aided the jury in evaluating Larson’s level of intoxication. It allowed the jurors to apply their experience and logic to determine whether Larson’s level of intoxication clouded his judgment and impaired his reactions, and its probative value outweighs any prejudice to the defendant. We hold that the court did not abuse its discretion in admitting the comparison.
II.
Did the jury hear sufficient evidence to find that Larson acted negligently?
When reviewing whether evidence was sufficient to support a criminal conviction, this Court views the facts in a light most favorable to the prosecution. The standard of review is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150; See also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
The jury convicted Larson of negligent endangerment. This required a finding that Larson negligently engaged in conduct which created a substantial risk of death or serious bodily injury to another. See Section 45-5-208, MCA. Larson contends that his conduct did not amount to criminal negligence.
Criminal negligence is defined as follows:
[A] person acts negligently with respect to a result or to a circumstance described by a statute defining an offense ... when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Gross deviation” means a deviation that is considerably greater than lack of ordinary care.
Section 45-2-101(37), MCA.
At trial, the jury heard evidence that a blood alcohol level of .05 begins to affect a person’s reasoning and judgment. The scientific community has determined that a blood alcohol level of .08 will affect a person’s reactions and judgment to the point of impairing the person’s ability to safely operate a motor vehicle.
Shortly before the accident Larson had consumed at least four cans of beer and two shots of whiskey. His blood alcohol level at the time of the accident was at least .17, and likely much higher.
In that condition, Larson mounted a horse described to him by the owner as “hot-blooded” and “inexperienced.” The owner of the horse had warned him not to tug back on the reins and not to give rides to children. Yet, Larson allowed a five-year old child on the horse with him. When the horse began to jump, Larson reined the horse back. The animal fell over backward, fatally crushing the child.
Upon these facts, a rational jury could find that Larson’s conduct amounted to a gross deviation from the ordinary care that a reasonable person would observe in a similar situation. We hold that the jury was justified in finding beyond a reasonable doubt that Larson acted negligently. Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, TRIEWEILER, HUNT and WEBER concur.
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
Rueben C. and Lavone M. Pitsch appeal from an adjudication of water right claims in Big Coulee Creek, a tributary of the Musselshell River, by the Montana Water Court, the Honorable Bernard W. Thomas presiding. We affirm.
We address the following issues on appeal:
1. Did the Water Court err in determining that the 1893 and 1921 water rights claimed by appellants were abandoned?
a. Should this Court expressly overrule 79 Ranch?
b. Did the Water Court err in its application of 79 Ranch?
2. Did the Water Court err in determining that the claimed 1973 water right was not perfected?
3. Are appellants entitled to a 1976 priority date for water applied to a beneficial use?
This is the third occasion on which the water right claims of Rueben and Lavone Pitsch have been appealed to this Court. For the most part, the claims before us originally went to trial in 1979 and appealed. We vacated and remanded in 79 Ranch, Inc. v. Pitsch (1981), 193 Mont. 229, 631 P.2d 690, and findings of feet, conclusions of law and judgment on remand were entered in 1982. The case was appealed again and resulted in our decision in 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 666 P.2d 215, in which we affirmed in part and remanded for modification. A modified decree and judgment was entered on August 22,1983.
Before the earlier proceedings finally had been resolved in August, 1983, Pitschs filed five Statements of Claim pursuant to Montana’s 1973 Water Use Act. The Water Court consolidated the claims of existing water rights in Big Coulee Creek, a tributary of the Musselshell River, asserted by Pitschs and other parties into Case No. 40A-48C. Claims by Eugene and Lois Schaff, Warren Sillivan and Coulee Hill Ranch, Inc., Chris and Betty Schaff and appellants Pitschs, as well as objections to those claims, were tried beginning February 8,1990.
After hearing, the Water Court ruled on the water right claims before it. With specific regard to appellants, the court determined that their one-third interest in the 1893 Montana Cattle Company water right (Claim No. 45635) had been perfected for 131 acres, but abandoned by their predecessors in interest. In addition, the court ruled that a 1921 Notice of Appropriation (Claim No. 45634) had been perfected for 23.5 acres, but abandoned, and that another 1921 Notice of Appropriation (Claim No. 45632) was not perfected or, if perfected, was abandoned. The court further determined that a 1953 irrigation right based on a reservoir right (Claim No. 182127) was not perfected. Finally, the court determined that appellants’ claim based on their predecessors’ 1973 Notice of Appropriation (Claim No. 45633) was not perfected by reason of lack of reasonable diligence in putting the water to beneficial use.
This appeal followed entry of judgment and certification pursuant to Rule 54(b), M.R.Civ.P. We note at the outset that only the Pitschs appeal from the judgment of the Water Court and that they do not appeal the Water Court’s determination that the asserted 1953 irrigation right was not perfected.
1. Did the Water Court err in determining that the 1893 and 1921 water rights claimed by appellants were abandoned?
Appellants argue two separate issues in support of their contention that the 1893 and 1921 water rights were not abandoned. First, they argue that this Court should expressly overrule 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 666 P.2d 215 (hereafter 79 Ranch). Second, they argue that, in any event, the Water Court erred in its application of 79 Ranch to the facts of their water right claims. We will address these issues separately.
a. Should this Court expressly overrule 79 Ranchi
Appellants assert that our decision in 79 Ranch in 1983 and our subsequent decision in E.E. Eggebrecht, Inc. v. Waters (1985), 217 Mont. 291, 704 P.2d 422, have resulted in an irreconcilable conflict in the law of abandonment in Montana. We disagree.
79 Ranch addresses the question of abandonment of claimed water rights. Eggebrecht addresses the extent and abandonment of an easement by grant and decides only the narrow issue of who has standing to raise the issue of abandonment of such a grant originally made by the United States. The two interests are separate and distinct and the distinctions between the two form the basis for the difference in legal approach to questions regarding them, including the question of abandonment.
Montana law has long recognized that water rights and easement rights such as ditch rights are distinct interests which can be conveyed separately and abandoned separately. See McDonnell v. Huffine (1912), 44 Mont. 411, 120 P. 792. The controlling principle upon which water “rights” in Montana are perfected and continue to possess legal validity is that of beneficial use; water rights cease when the water is no longer applied to a beneficial use. Power v. Switzer (1898), 21 Mont. 523, 55 P. 32; 79 Ranch, 204 Mont. at 431-32. Water rights are thus inherently different from other rights or interests not fundamentally premised or conditioned on use of the particular right or interest; necessarily, then, abandonment of a water right is a question distinct from abandonment of a right created in a different manner.
In this regard, Montana’s law on abandonment of water rights has a long and evolutionary history. See, e.g., Smith v. Hope Mining Co. (1896), 18 Mont. 432, 45 P. 632; Moore v. Sherman (1916), 52 Mont. 542, 159 P. 966; Thomas v. Ball (1923), 66 Mont. 161, 213 P. 597; Shammel v. Vogl (1964), 144 Mont. 354, 396 P.2d 103; Holmstrom Land Co. v. Meagher Cty. Newlan Creek (1979), 185 Mont. 409, 605 P.2d 1060; 79 Ranch (1983); § 85-2-404, MCA. Appellants correctly assert that our decision in 79 Ranch was a change in the law of abandonment of water rights. Given Smith and Holmstrom, however, both of which held a long period of non-use of water rights to be “strong evidence” of intent to abandon, it was not the “stunning reversal” appellants assert it to be.
Eggebrecht did not relate to water rights or abandonment of water rights. There, a reservoir right of way by grant was acquired from the United States under federal law authorizing such grants on public land of ground occupied by certain ditches, canals or reservoirs. Relying on City of Billings v. O.E. Lee Co. (1975), 168 Mont. 264, 542 P.2d 97, we stated in Eggebrecht that “mere non-use of an easement by grant, no matter how long continued, does not constitute abandonment.” Eggebrecht, 217 Mont. at 295. (Emphasis supplied.) The statement clearly encompassed easements by grant only; as noted above, the creation and continued existence of such an interest is not analogous to the creation and continued existence of a water right in Montana. If anything, the easement by grant in Eggebrecht might be analogous to a ditch right by grant, rather than to a water right.
79 Ranch and Eggebrecht are not in conflict. Nor, given the differences between water rights and easements by grant, is there any reason that Montana law on abandonment of those interests should be identical.
Appellants also contend that our 79 Ranch decision, insofar as it relates to a rebuttable presumption of abandonment, violates the Montana Constitution. Their constitutional argument is based in large part on sweeping statements as to the extent and effect of our holding which are simply incorrect and of other matters which do not appear of record.
We do not address these statements in any detail. Building on our holdings in Smith and Holmstrom that a “long period of nonuse is strong evidence of an intent to abandon the water rights,” we went on in 79 Ranch to conclude that “[i]n effect, such a long period of continuous nonuse raises the rebuttable presumption of an intention to abandon, and shifts the burden of proof onto the nonuser to explain the reasons for nonuse.” 79 Ranch, 204 Mont. at 432-33. We said no more than this.
Appellants quote Article IX, Section 3(1) of the 1972 Montana Constitution, which recognizes and confirms “existing rights to the use of any waters for any useful or beneficial purpose ...” They construe that provision as prohibiting the state, whether through the legislature or this Court, from any post-1972 actions which could negatively impact in any way on pre-1972 water rights. We previously have rejected similar constitutional arguments regarding legislative changes in Montana water law since the 1972 Constitution. We reject them here as they relate to state action via decisions of this Court.
As discussed above, valid and existing water rights in Montana have long been premised on beneficial use. These are the “existing rights” that the 1972 Constitution recognizes and confirms, and we have held that “constitutional recognition of water rights is effective and will be sustained.” McDonald v. State (1986), 220 Mont. 519, 722 P.2d 598. We specifically recognized that the State’s ability to affect existing and recognized water rights survived the adoption of Article IX, Section 3(1), of the 1972 Montana Constitution. Dept. of State Lands v. Pettibone (1985), 216 Mont. 361, 702 P.2d 948. Indeed, earlier this year, in considering an abandonment issue under the 1973 Water Use Act, we determined that the constitutional recognition of existing water rights “does not establish that pre-1973 water rights are immune from sovereign powers.” Matter of Adjudication of Yellowstone River Water Rights (Mont. 1992), [253 Mont. 167,] 832 P.2d 1210, 1214, 49 St.Rep. 413, 415. While those rights are “protected against unreasonable state action[,] ... they have not been granted indefeasible status.” Id. We concluded that “consistent with Article IX, Section 3(1), of the Montana Constitution, the State Legislature may enact constitutionally sound regulations including the requirement for properly owners to take affirmative actions to maintain their water rights.” Id.
We adopt the foregoing rationale as it applies to our “rebuttable presumption of abandonment” holding in 79 Ranch. Requiring a water right claimant to explain the reasons for a long period of continuous non-use of water is a constitutionally permissible affirmative action, particularly when the action required is but an incremental change from the earlier rule that longperiod of non-use is “strong,” “potent,” or “clear” evidence of an intent to abandon. Indeed, 79 Ranch is akin to a caveat to claimants that they should not rest their case without addressing the potent evidence of intent to abandon which arises from a long period of non-use. We hold, therefore, that our decision in 79 Ranch does not violate Montana’s constitutional provision recognizing and confirming existing water rights.
b. Did the Water Court err in its application of 79 Ranch?
The Water Court found that the 1893 Montana Cattle Company water right was applied to irrigation via 393 acres of land between 1893 and 1912; thus, the water right was perfected. Thereafter, no irrigation of any kind based on this water right occurred for at least forty years. The Water Court found, under 79 Ranch, that appellants failed to show reasonable cause for non-use of the water for the forty year period and, thus, that the right had been abandoned.
Similarly, the Water Court found that the claimed water right based on a March 22, 1921, Notice of Appropriation filed by Claude Hill, appellants’ predecessor in interest, was put to beneficial use. The court further found, however, that the water was not used for a period of some forty years and that appellants failed to show reasonable cause for non-use over that period. Finally, as to appellants’ claimed water right based on a Notice of Appropriation filed in September, 1921, by Claude Hill and others, the court found that appellants failed to prove that the water was ever put to beneficial use on the sections specified in the Notice of Appropriation. In the alternative, the court found that, if the water ever had been put to beneficial use, the right was abandoned through non-use for more than forty years and appellants’ failure to establish reasonable cause for the non-use.
Appellants assert that they presented sufficient evidence to explain the reasons for non-use under 79 Ranch. According to appellants, the Water Court erred in concluding that we had held “that broad claims such as [ditches blowing shut, lack of money, the depression, the war, the need for cooperation to restore the ditches and the lack of water], unsupported by specific evidence, are not sufficient to rebut the presumption.”
Appellants are technically correct. We did not have before us in 79 Ranch the variety or number of ‘broad claims” subsequently presented to the Water Court at the trial of this case; thus, it might be said that the Water Court characterized our statement in 79 Ranch too broadly. Nevertheless, the Water Court correctly applied the thrust of 79 Ranch to the facts before it.
In 79 Ranch, the only evidence before us in rebuttal of the presumption of abandonment was Pitsch’s argument that his predecessors in interest did not have sufficient funds to irrigate. We concluded that “[s]uch a broad claim, unsupported by more specific evidence, is not sufficient to rebut the presumption of abandonment.” 79 Ranch, 204 Mont. at 433. We relied on In re CF & I Steel Corporation v. Purgatoire River Water Conservation District (Colo. 1973), 515 P.2d 456, for the principle that some fact or condition excusing longperiods of non-use must be established to rebut the presumption, not mere expressions of desire or hope. Id. With specific regard to Pitsch’s “lack of sufficient funds” argument, we also found the Colorado Court’s reasoning persuasive:
“Considering the large demands for all of the appropriatable water in this state..., it might be said that nearly every abandoned water right could have its non-use justified by the economics that might prevail sometime in the future for use of this water .... This gleam-in-the-eye philosophy is not consistent with the protection and preservation of existing water rights.”
79 Ranch, 204 Mont. at 433-34; citing CF & I, 515 P.2d at 458.
With 79 Ranch clearly before us, we have scrutinized the entirety of the record in the case. Appellants presented general evidence of a variety of negative factors in an effort to span a period of non-use from at least the 1920s to 1976: dry conditions in the 1920s; the “dust bowl years” of the 1930s; the depression; World War II; blown-in ditches; lack of water; lack of money; and the need for cooperation to restore a lengthy series of ditches to operating condition. As presented, the evidence generally encompassed the Big Coulee area and was not specific to the acreage to which the claimed water rights related. In addition, the evidence was nearly all conclusory in nature; that is, the evidence was that certain spans of years were “pretty dry,” “most people” did not have sufficient funds to reopen ditches, and so on. Specific evidence explaining or excusing the long period of non-use of the particular water rights on the specific property was lacking. In addition, evidence was presented by other parties that sufficient water was available for irrigation from Big Coulee in some years, that portions of the blown-in ditches were easily opened and thereafter utilized, and that at least one properly was irrigated from Big Coulee Creek every year there was water from 1941 to 1990.
We agree with appellants’ argument that a person cannot put water to beneficial use when there is no water available. The record here reflects, however, that some quantity of water was available for irrigation from Big Coulee Creek for many, if not most, of the years at issue here. The overall impression from the record is that much farming in the Big Coulee area was diy land farming and that the farmers there were little interested in irrigation. In any event, appellants presented no specific evidence establishing any fact or condition sufficient to excuse the long period of non-use, as required by 79 Ranch.
Appellants’ reliance on Hallenbeck v. Granby Ditch and Reservoir Company (Colo. 1966), 420 P.2d 419, is misplaced. In Hallenbeck, the issue was whether the Granby Ditch and Reservoir Company had made a sufficient showing to rebut the presumption of abandonment of storage rights in a number of reservoirs. The Colorado Court stated that “a reasonable justification for non-use may very well exist where it can be shown that economic, financial or legal difficulties or natural calamities prevented the storing of all the water that was originally decreed.” Hallenbeck, 420 P.2d at 426 (citations omitted). The evidence showed that Granby was unable to keep the reservoirs in peak operating condition during the depression, but that it did keep parts of the reservoir system operating with specifically-proved expenditures of money. Evidence also indicated that material and engineering shortages during the war hampered operations, but that all of the reservoirs save one were used until 1945. Repairs on a dam on one of the reservoirs were prohibitively expensive as a result of U.S. Forestry requirements. However, increasingly larger amounts were spent on the remaining system from 1945 until 1961. On these facts, the Colorado Supreme Court affirmed the trial court’s finding of insufficient facts to show intent to abandon.
Hollenbeck is distinguishable from the case before us. There, Granby continued to use portions of its storage rights throughout the period. In addition, it presented specific evidence as to its continuing efforts to maximize operation of its reservoir system and its storage rights as well as specific evidence of the economic financial or legal difficulties or natural calamities which hampered its efforts.
Appellants presented no evidence of any effort whatsoever by their predecessors in interest to apply the claimed water rights to beneficial use. Nor did they present any specific evidence of obstructions to their ability to do so. When this case was last before us, we stated that Pitsch’s argument that his predecessors did not have sufficient funds to irrigate was too broad a claim, unsupported by more specific evidence, to rebut the presumption of abandonment. Appellants did not add any specific evidence in that regard. Overall, they presented merely a series of conclusoiy statements concerning a variety of negative factors spanning nearly fifty years. Based on the record before us and upon which the Water Court made its findings, we cannot say the Water Court erred in its findings or in its application of 79 Ranch.
2. Did the Water Court err in determining that the claimed 1973 water right was not perfected?
Appellants filed a Statement of Claim for an irrigation right, claiming 325.80 acres of irrigation use in sections 35 and 36, T5N, R19E, with a 1973 priority date. Appellants’ claim was based on a Notice of Appropriation for irrigation lose filed May 30,1973, by their predecessors in interest Bert and Victoria Schaff. The water was claimed by the Schaffs for use on the NWV4 of section 35 and the NWV4 of section 36, T5N, R19E and was never put to beneficial use by them.
Appellants purchased sections 35 and 36, T5N, R19E, including all water rights, from the Schaffs in August 1975. They first put water to beneficial use in July 1976, principally on land in the NE1/4 and SV2 of section 35, T5N, R19E. The Water Court found, on these facts, that appellants failed to prove reasonable diligence on the part of their predecessors in interest in applying the 1973 water right to a beneficial use. Appellants argue that the court’s finding of lack of reasonable diligence is error. As a result, according to appellants, the pre-1973 Water Use Act appropriation was perfected and their priority date relates back to the date of filing.
“ What constitutes due diligence is a question of fact to be determined by the court in each case.’ ”Mont. Dept. of Nat. R. & C. v. Intake Water Co. (1976), 171 Mont. 416, 434, 558 P.2d 1110, 1120 (citation omitted). Thus, our standard of review is whether the court’s finding of feet is clearly erroneous. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285,1287.
In Intake Water Co., we cited Clark, Waters & Water Rights, Vol. 6, § 514.1, pp. 308, 309, as follows:
‘Diligence does not require unusual or extraordinary effort, but it does require a steady application of effort — that effort that is usual, ordinary and reasonable under the circumstances. * * * So long as the applicant prosecutes the construction of works in good faith with a steady effort, he should be held to have prosecuted with diligence.”
171 Mont. at 434. In that case, we determined that the applicant had met the diligence requirement. Appellants herein assert that that case is apposite here and mandates a reversal of the Water Court’s finding. Appellants fail to take into account the significant factual differences between the two cases.
In Intake Water Co., the Notice of Appropriation was filed on June 8, 1973 and the water had not been put to beneficial use — indeed, construction of the diversion works had not begun — by the time the DNRC’s declaratory judgment action was tried. The record reflected that the contemplated multi-million dollar project was of great complexity and magnitude which would require several years to complete even after the project was physically under way. The company was progressing toward removal of both actual and legal constraints arising out of the Yellowstone River Compact and several Montana statutes. In addition, actual construction of the diversion project could not begin until National Environmental Policy Act requirements were met and federal government approval was obtained. Under these facts, we held that the statutory language did not require “commencement of actual on-site excavation or construction of the diversion works, but that it encompasses the steady on-going effort in good faith by Intake to prosecute the construction of the project. ...” Intake Water Co., 171 Mont. at 436.
In the case before us, appellants’ predecessors in interest filed the Notice of Appropriation in May, 1973. Bert Schaff ordered an irrigation system that year, laid out pipe in the fields and bulldozed a site for his pump. Necessary parts for the irrigation system were not delivered. By the time he sold the property to appellants in August, 1975, Schaff had undertaken no additional efforts to obtain the parts to complete the irrigation system. Appellants subsequently put the claimed water to beneficial use in July, 1976, more than three years after the notice had been filed.
The record reflects no complexity, legal barriers or justifiable actual barriers regarding the contemplated irrigation project for which the 1973 Notice of Appropriation was filed, such as were present in Intake Water Co. Appellants’ predecessors did not proceed with any steady on-going effort toward completion of their irrigation project after initial steps were taken. Substantial, credible evidence supports the Water Court’s finding that appellants failed to prove reasonable diligence on the part of their predecessors in interest in applying the claimed 1973 water right to beneficial use. In addition, the court did not misapprehend the law; nor are we left with the conviction that a mistake has been committed. We hold that the Water Court’s finding of lack of reasonable diligence is not clearly erroneous. Absent perfection of the 1973 Notice of Appropriation, appellants cannot now claim an existing pre-1973 water right. Holmstrom, 185 Mont. 430.
3. Are appellants entitled to a 1976 priority date for water applied to a beneficial use?
Appellants’ final contention is that they are entitled to a 1976 priority date for the water they utilized under the 1973 Notice of Appropriation. We addressed this precise issue in 79 Ranch and address it again here only because of its importance in the on-going water rights adjudication and permit processes.
The Water Court determined that appellants acquired a different type of sprinkler system to put the water to beneficial use; further, they changed both the place of diversion and the place of use stated in the 1973 Notice of Appropriation. The court noted that these significant changes were “all indicative of a new appropriation” in 1976. Appellants’ argument for a 1976 priority date apparently is based on this determination. They misapprehend the effect of the determination vis-a-vis the 1973 Water Use Act.
In essence, and notwithstanding the failure of their claim under the 1973 Notice of Appropriation, appellants’argument is that their claim still must be adjudicated under pre-1973 law. lb accept this argument would be to ignore both the thrust and the specific requirements of the 1973 Water Use Act regarding new appropriations of water and to revert to pre-1973 law.
All new appropriations of water must be established through a water use permit system. Section 85-2-302, MCA. “A right to appropriate water may not be acquired by any other method.... The method prescribed by this chapter is exclusive.” Section 85-2-301(3), MCA. These statutes are perfectly clear and clearly negate appellants’ argument. In addition, this precise issue was addressed and decided in 79 Ranch. We refused to affirm the 1976 priority date established by the court for a new “use” right, noting the 1973 Act’s “emphatic” statement that it contained the exclusive procedures for post-1973 acquisition of water rights and the absence of record support for compliance with those procedures. 79 Ranch, 204 Mont. at 436.
AFFIRMED.
JUSTICES HARRISON, HUNT, TRIEWEILER and McDonough concur.
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
James Blaze Colt (Colt), appeals his conviction for issuing a bad check (common scheme), and two counts of deceptive practices. The conviction and subsequent sentence and order were entered in the District Court for the Eleventh Judicial District, Flathead County. We affirm the conviction.
In this appeal, we address the following issues raised by Colt:
1. Was the extent of the District Court’s inquiry sufficient to allow Colt to make a knowing, intelligent, and voluntary waiver of his right to assistance of counsel?
2. Did the District Court violate Colt’s constitutional right to pro se representation by requiring standby counsel to assist in a portion of Colt’s defense during the State’s case-in-chief?
On September 19,1991, Colt was formally charged with one count of issuing a bad check, a felony common scheme; and two counts of deceptive practices, also felonies. The information filed against Colt in Count I alleged he issued or delivered checks for the payment of money to various individuals and businesses in Flathead County knowing the checks would not be honored by the drawee bank.
Count II alleged Colt purposely or knowingly obtained control over a 1984 pickup truck by deception; specifically, that Colt caused the owners of the truck to execute title by leading them to believe sufficient funds would be available to cover two checks written for the purchase of the truck. Count III alleged deceptive practices in that Colt purposely or knowingly made a false or deceptive statement in order to procure credit.
Prior to trial, Colt filed pleadings asking that he be allowed to proceed with his defense pro se. An October 31, 1991 order gave Patrick D. Sherlock (Sherlock), Colt’s court-appointed counsel, permission to withdraw and allowed Colt to proceed pro se. Additionally, the District Court appointed Chris Christensen as standby counsel. Subsequent to the District Court’s order allowing Colt to proceed pro se, District Judge Leif B. Erickson, before whom the cáse had been pending, accepted a federal appointment. District Judge Robert S. Keller assumed jurisdiction and replaced Judge Erickson.
After a two-day trial, the jury returned a verdict of guilty as to all three counts. The District Court sentenced Colt to ten years in prison as to Count I; ten years in prison on Count II, all of which was suspended; and ten years as to Count III, all of which was suspended and was concurrent to the sentence imposed for Count II. The sentences imposed for Counts II and III were consecutive to the sentence for Count I. Finally, Colt was ordered to make restitution in the amount of $2,391.34. Colt now appeals his conviction to this Court.
I.
Was the extent of the District Court’s inquiry sufficient to allow Colt to make a knowing, intelligent, and voluntary waiver of his right to assistance of counsel?
In his first assignment of error, Colt claims the District Court did not fully discuss with him the consequences of self-representation and thereby he did not make a knowing and intelligent waiver of his right to assistance of counsel. The right to the assistance of counsel or the right to proceed pro se in all criminal prosecutions is fundamental under the Montana Constitution:
In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel...
Art. II, § 24, Mont.Const.
“Article II, Section 24 of the 1972 Montana Constitution, and the right to a fair trial inherent in the due process clause of Art. II, Section 17, guarantee a defendant charged with a crime the right to assistance of counsel.” State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781. The right to assistance of counsel applies with equal force to all persons regardless of their ability to pay. Enright, 758 P.2d at 781. In addition, “the Sixth Amendment right to counsel includes the right of an accused to personally make his own defense.” State v. Brown (1987), 228 Mont. 209, 213, 741 P.2d 428, 431.
However, because an accused relinquishes many of the benefits associated with the right to counsel when he undertakes his own defense, the trial court must ensure certain criteria are met before allowing the defendant to proceed pro se. Faretta v. California (1974), 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581. In essence, the trial court must ensure the defendant is competent to abandon his right to assistance of counsel and proceed pro se. Brown, 741 P.2d at 431. Competence on the part of a defendant to abandon his right to counsel and proceed pro se does not necessarily mean he have the skill and experience of a lawyer. Faretta, 422 U.S. at 835. It does mean, however, that the defendant’s relinquishment of his right to counsel must not only be voluntary, but also must be made knowingly and intelligently. State v. Plouffe (1982), 198 Mont. 379, 385, 646 P.2d 533, 536 (citing Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct 1880, 68 L.Ed.2d 378).
The record indicates that two separate motions were presented to the District Court requesting that Colt be allowed to proceed pro se. The first motion was filed on behalf of Colt by Sherlock. The second motion was filed by Colt himself. Additionally, Colt asked the District Court to remove Sherlock as his counsel of record and appoint Chris Christensen as standby counsel. Colt stated that he believed Sherlock was doing an inadequate job of representing him and he did not have confidence in Sherlock.
Nothing in the record indicates that Sherlock was failing to render effective assistance of counsel. Nor does Colt argue ineffective assistance of counsel in this appeal. As to the confidence Colt had in Sherlock, effective assistance of counsel does not require that the defendant have confidence in appointed counsel. State v. Forsness (1972), 159 Mont. 105, 110, 495 P.2d 176, 178. In addition, the District Court was under no obligation to appoint a different public defender to act as standby counsel for Colt. The right to the assistance of counsel does not vest in a defendant the right to counsel of his choice. Enright, 758 P.2d at 781. Notwithstanding this fact, by order dated October 31,1991, the District Court allowed Sherlock to withdraw as Colt’s defense counsel and allowed Colt to proceed pro se with public defender Chris Christensen appointed to act as standby counsel.
As previously mentioned, Colt complains the District Court did not ensure his waiver of his right to counsel was made knowingly and intelligently. We disagree. Colt’s statements to the District Court Judge, and the pleadings he filed with the District Court as well as those filed by appointed counsel, amount to an assertion of his right to self-representation. State v. Strandberg (1986), 223 Mont. 132, 135, 724 P.2d 710, 712. At the hearing to determine Colt’s competence to execute a valid waiver of his right to counsel, Judge Erickson engaged Colt in the following colloquy:
The Court: Mr. Colt, I certainly under — you know, I certainly recognize that if you wish to proceed pro se ordinarily you’re allowed to do so. Do you have any legal training or background which would enable you to do this?
Colt: Yes I do.
The Court: And what is that, sir?
Colt: Scholastically, I’ve had civil law and litigation courtroom procedure. Familiarity with criminal law.
The Court: I have looked at some of the motions you’ve filed. Quite frankly, some have some merit; some, I’m not sure you understand the procedure, quite frankly. That’s why I asked the question.
Quite frankly, factual questions are resolved in trial, not by the Court. I can’t resolve factual questions. I don’t have the authority. Several procedural matters are the things that I can handle.
But that’s why I’m concerned about you proceeding pro se, that you don’t understand the distinction of what is proper for me to handle and what is not. I certainly don’t want to deny you the opportunity to proceed pro se; I’m concerned you have adequate help. I want to make it perfectly clear you have a right to counsel.
Colt: Yes.
The Court: And Mr. Sherlock was appointed to be your counsel.
Colt: Montana has a uniqueness about its judiciary in the post federal or other states.
The Court: I don’t know what states you’re familiar with, but we’re based primarily, to a large extent, on, one point, California law and, more recently, Illinois law. Much more law comes from Illinois.
But as I say, you understand you do have the right to counsel, and you wish to waive that right; is that correct?
Colt: Yes, I do.
The Court: And you do so understand that I would hold you to the same standards as though you were counsel, and I can’t cut you any slack just because you choose to proceed pro sel The rules of law apply whether a person’s appearing pro se or with the assistance of counsel.
Colt: I would like to consult with an attorney, but not representation, on procedure as far as trial goes. [Emphasis added.]
In addition, at the start of Colt’s trial, Judge Keller admonished Colt about pro se representation:
The Court:... I haven’t anyidea what Judge Erickson talked to you about when you made your determination to appear Pro Se. Normally, you should have been advised, and I am satisfied you probably were, that you can represent yourself, but you represent yourself as if you are an attorney, and you are governed by the same rules that attorneys are. And I am not in the posture that I can help. I can’t sit and arbitrate this thing between the two sides and help one side. So you are on your own, to that extent....
Applying the criteria necessary for a valid waiver of the right to the assistance of counsel to the case at bar, the record establishes that Colt was “fully aware of the dangers and disadvantages of self-representation,” knew what he was doing, and made his choice to waive assistance of counsel and proceed pro se with his eyes open. Faretta, 422 U.S. at 835. Drawing from the record and the testimony as to his appearance, the District Court properly found that Colt made a voluntary, knowing, and intelligent waiver.
Colt argues that this Court should adopt the three-part test utilized in the United States Court of Appeals for the Ninth Circuit to determine whether or not a defendant in a criminal proceeding validly waived his right to counsel. The first prong requires that a request by a defendant to forego the assistance of counsel be unequivocal. Second, the waiver must be voluntary. The final prong requires the waiver to be made knowingly and intelligently. United States v. Robinson (9th Cir. 1990), 913 F.2d 712, 714-15. In addition, before a waiver of counsel can be knowing and intelligent, the Ninth Circuit requires the trial court to specifically discuss “the nature of the charges, the possible penalties, and the dangers and disadvantages of self representation....” United States v. Balough (9th Cir. 1987), 820 F.2d 1485, 1487.
In urging this Court to adopt this test, Colt admits his choice to proceed pro se was both voluntary and unequivocal. Moreover, he admits he was informed of the nature of the charges against him, and the possible penalties if convicted of those charges. It is the alleged failure of the District Court to specifically discuss the dangers and disadvantages of self-representation upon which Colt hangs his hat.
This Court does not require district courts to adhere to a rigid set of requirements in ascertaining whether a defendant in a criminal proceeding has made a knowing and intelligent waiver of his right to counsel. District judges are in the best position to determine whether the defendant has made a knowing and intelligent waiver of his right to counsel. As noted in a concurring opinion in Balough, “they can consider the level of understanding demonstrated by the defendant, his background and prior experience with the legal system, the deliberation with which he has made the decision to proceed without counsel and his seriousness of purpose.” Balough, 820 F.2d at 1490 (Kozinski, J., concurring). Requiring the district courts to specifically discuss the dangers and disadvantages of pro se representation is far beyond the scope of what Faretta or our case law requires. Faretta requires the accused “be made aware of the dangers and disadvantages of self representation ....’’Faretta, 422 U.S. at 835 (emphasis added).
Additionally, establishment of generic criteria by which the District Court would by rote discuss certain specific dangers and disadvantages of self-representation will do little to protect the rights of the accused. It is the district court judges who consider, assimilate, and absorb the nuances of each individual case. They are not constrained, as we are, to garnering all of their information from a cold record. Therefore, it is the district judges who are in the best position to determine the extent, context, and degree of inquiry necessary to determine whether the individual before them has made a voluntary, knowing, and intelligent waiver of the right to counsel. So long as substantial credible exists to support the decision of the District Cotut that the defendant made a voluntary, knowing and intelligent waiver, it will not be disturbed on appeal. Plouffe, 646 P.2d at 536. Accordingly, we hold the District Court’s inquiry was sufficient in its context to allow Colt to make a knowing and intelligent waiver of his right to assistance of counsel.
II.
Did the District Court violate Colt’s constitutional right to pro se representation by requiring standby counsel to assist in a portion of Colt’s defense during the State’s case-in-chief?
In his second assignment of error, Colt contends his constitutional right to proceed pro se was denied when Judge Keller required standby counsel to assume cross-examination of two of the State’s witnesses. At this juncture we note that neither our research, nor that of counsel, reveals any Montana case law which is remotely on point. Specifically, we address whether the District Court’s requirement that standby counsel assist a pro se defendant due to the defendant’s repeated failure to follow courtroom procedure constitutes a violation of the defendant’s right to conduct his own defense.
We are tolerant of “the layman’s lack of familiarity with procedure or with legal principles” when a layman chooses to represent himself in a judicial proceeding. State v. Graham (1983), 206 Mont. 49, 54, 669 P.2d 691, 693. However, when an accused chooses to forego the benefits of assistance of counsel and proceed on his own behalf, he is not entitled to have the “rules of procedures and law ... applied less strictly against him.” State v. Poncelet (1980), 187 Mont. 528, 548, 610 P.2d 698, 709. Moreover, the right of self-representation does not vest in a pro se defendant “a license to abuse the dignity of the courtroom” or allow him “not to comply with relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 835, n. 46.
Colt argues that infringement of a pro se defendant’s Sixth Amendment right must be based upon serious and obstructionist misconduct deliberately engaged in by the defendant. Faretta, 422 U.S. at 834-35, n. 46. We do not agree. The accused has a Sixth Amendment right to continue conducting his own defense only so long as “he is able and willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins (1983), 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122, 130. “[T]he primary focus must be on whether the defendant had a fair chance to present his case in his own way.” McKaskle, 465 U.S. at 177, 104 S.Ct. at 950.
While the record does not establish that Colt deliberately engaged in misconduct, it is apparent that Colt abused his Sixth Amendment right to self-representation. Colt repeatedly commented upon the evidence. He failed to pose proper questions. He continually attempted to testify on his own behalf while cross-examining the State’s witnesses. And, he engaged in irrelevant cross-examination. We note that the District Court and the County Attorney were very tolerant of Colt’s failure to play by the rules.
It was only after Colt had been admonished by the District Court on at least four occasions, and other instances of abuse had passed with no admonishment, that standby counsel was required to finish the cross-examination of one witness and control the direct, cross, and redirect examination of the State’s final witness of the day. After these two witnesses testified, the court recessed for the day. When trial resinned the next morning, Colt was allowed to resume his self-representation and did so without further abuses.
Colt contends that in requiring standby counsel to assist in part of his defense, the District Court exceeded the limits imposed on participation by standby counsel. The McKaskle Court held:
[T]he Faretta right must impose some limits on the extent of standby counsel’s unsolicited participation.
[T]he right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel.
McKaskle, 465 U.S. at 177, 104 S.Ct. at 950. (Emphasis added).
The instant case is factually different than the claimed facts argued in McKaskle. In Colt’s case, standby counsel only participated after the District Court ordered him to do so. Standby counsel did not engage in unsolicited participation of his own volition, as was the case in McKaskle. From the record before us, such participation was neither intrusive or excessive and did not deny Colt a fair chance to present his case in his own way. Aside from the minimal interlude at the end of the first day of trial, Colt controlled all aspects of his defense. This included: voir dire; opening argument; cross-examination of all but two of the State’s witnesses; control of all aspects of his case-in-chief and closing argument. Additionally, Colt filed several motions, presented his own jury instructions, and interjected objections during witness examination.
We hold that an accused is permitted to conduct his own defense so long as he is able and willing to abide by the rules of courtroom procedure and substantive and procedural law. Where substantial credible evidence exists to support the District Court’s decision requiring standby counsel to assist in the defense where a pro se defendant fails, or is unable, to adhere to proper courtroom procedure and protocol, it will not be disturbed on appeal.
As we have held there to be no denial of the Faretta right of self-representation, there is no per se prejudicial error, and we do not address Colt’s final issue that he is entitled to reversal of his conviction. Conviction affirmed.
JUSTICES HARRISON, GRAY, McDONOUGH, TRIEWEILER, WEBER and HUNT concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
Appellant Lindey’s, Inc. appeals from an order of the District Court of the Fourth Judicial District, Missoula County, awarding damages for loss of use of property, supplemental relief, costs and attorney’s fees. Lindey’s also appeals from a subsequent order setting the amount of attorney’s fees and costs. We affirm in part and reverse in part.
Appellant presents fourteen issues on appeal. We consolidate these issues as follows:
1. ) Did the District Court err in denying Lindey’s request for a jury trial on the issue of damages?
2. ) Did the District Court err in its award of damages to enforce the 1987 determination of the boundary between Lots 1 and 2?
3. ) Did the District Court err in ordering Lindey’s to pay for the transcription of a video-taped deposition?
4. ) Did the District Court err in admitting hearsay evidence of a reduction in the taxable value of Goodover’s property?
5. ) Can Lindey’s raise issues that were raised or should have been raised in an earlier appeal?
6. ) Did the District Court err in awarding costs to Goodover?
7. ) Did the District Court err in awarding attorney’s fees to Goodover?
The case before us is the third appeal stemming from a protracted and bitter boundary dispute between two property owners in Seeley Lake. The facts regarding the earlier stages of the litigation are detailed in Goodover v. Lindey’s, Inc. (1988), 232 Mont. 302, 757 P.2d 1290 [Goodover I] and Goodover v. Lindey’s, Inc. (1990), 246 Mont. 80, 802 P.2d 1258 [Goodover II]. Additional facts will be set forth as appropriate in the discussion of the issues. Briefly, respondent Pat M. Goodover (Goodover) owns Lot 2 of the Seeley Lake Shore Sites in Missoula County. Appellant Lindey’s, Inc., (Lindey’s) owns adjoining Lot 1. In 1984, Goodover filed an action for quiet title and declaratory judgment to locate the disputed northeast comer marker of the lots. After a bench trial in 1987, the District Court issued findings of fact, conclusions of law and judgment which established the boundary line. The court also bifurcated the issue of damages for later determination. This Court affirmed in Goodover I. Shortly before the 1987 trial, Lindey’s constructed a restroom facility and installed two -underground fuel storage tanks in the disputed area. After we affirmed the boundary determination, it was clear that the restroom and a fence encroached on Goodover’s property; although the storage tanks lay below the surface, the position of the air vents indicated an additional encroachment.
After failed negotiations to remove the encroachments, Goodover moved the court for an order requiring Lindey’s to show cause why it should not be compelled to remove the encroachment. Following a hearing, the District Court ordered Lindey’s to move the restroom at least three feet from the boundary and to locate the underground storage tanks. It also expressly reserved jurisdiction over the issue of damages. Lindey’s appealed the District Court’s jurisdiction to fashion such supplemental relief. The District Court established a $5,000 bond on appeal to satisfy any damages resulting from Lindey’s encroachments.
On December 18, 1990, this Court affirmed the District Court’s decision on supplemental relief in Goodover II. After the parties received that decision, Goodover promptly filed a motion for forfeiture of the appeal bond.
In March of 1991, the District Court ordered Lindey’s to submit a work plan detailing the removal of the restroom and the location of the underground storage tanks and set a July 20,1991, deadline for all work to be completed. Lindey’s submitted a report locating the tanks, finding them within three feet of the established boundary. On July 24, 1991, Lindey’s moved the restroom, but left the concrete foundation encroaching on Goodover’s property.
After numerous continuances, the District Court held a hearing on damages on August 2, 1991. On August 5, 1991, Goodover filed a petition for removal of the tanks, asserting that although they did not lie on Goodover’s property, they violated local fire codes requiring underground storage tanks to be set back three feet from any boundary. On January 2, 1992, the District Court entered findings of fact, conclusions of law and order on damages. Finally, on February 25, 1992, the District Court ordered Lindey’s to pay Goodover $10,761.86 in attorney’s fees and $524.45 in costs. Lindey’s appeals from both orders.
I.
Did the District Court err in denying Lindey’s request for a jury trial on the issue of damages?
Goodover initially filed an action for quiet title and declaratory judgment to locate the boundary between the lots. In his second amended complaint, Goodover added a prayer for damages of $500. In answering the second amended complaint on July 30, 1985, Lindey’s did not request a jury trial. Instead, it requested a jury trial in its response to Goodover’s motion to forfeit the appeal bond on January 25, 1991, nearly six years later. The District Court denied Lindey’s request for a jury trial.
Lindey’s argues that because Goodover’s second amended complaint did not pray for damages over $500 (as were eventually awarded), it had no notice of the potential for larger damages. Therefore, it argues that it was unaware of the need to request a jury trial in its answer to the second amended complaint, in violation of its due process rights. We disagree.
Although Lindey’s claims it had no notice of the potential for greater damages, each count of the second amended complaint contains a request for “such other and further relief as the court may seem [sic] appropriate.” Furthermore, Lindey’s cites no authority for its argument. Rule 38(b) of the Montana Rules of Civil Procedure clearly provides:
Any party may demand a trial by jury of any issue triable by right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.
Lindey’s should have demanded a jury trial in its answer to the second amended complaint. Failure to serve this demand constitutes a waiver of trial by jury. Rule 38(d), M.R.Civ.R Lindey’s waived its right to a jury trial by failing to comply with the requirements of Rule 38(b).
Lindey’s also argues that Goodover should have been required to amend his complaint to request larger damages, thereby giving Lindey’s the opportunity to request a jury trial. This argument is without merit, because even if Goodover had amended the complaint to include a request for more money damages and coercive relief, Lindey’s previous waiver of a trial by jury would not have been revoked. Rule 38(d), M.R.Civ.R, provides in pertinent part:
A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.
Each damage claim that Lindey’s finds objectionable arose out of the same occurrence in the second amended complaint, the disputed boundary between Lots 1 and 2. The District Court did not err in denying Lindey’s untimely motion for a trial by jury.
II.
Did the District Court err in its award of damages to enforce the 1987 determination of the boundary between Lots 1 and 2?
At the hearing on damages, Goodover called Ken Hayes, an area realtor, to testify as an expert witness. Hayes testified that the value of Goodover’s lot was $100,000 and the rental value of the lot during the rental season was $350 per week. He also testified that the presence of the encroachments decreased the value of the lot by 10 to 20%.
Goodover testified that the value of his property ranged from $150,000 to $175,000. Goodover also testified that the County Tax Appeals Board had reduced his appraised property value by $10,000 due to the ongoing litigation.
Lindey’s real estate expert, Jeff Macon, testified that an undeveloped campsite in the Seeley Lake area rented for $160 per month, but acknowledged that a lot with amenities similar to Goodover’s would yield higher rentals. He also testified that the encroachments would not have a substantial effect on sales price. Clarence Rich, a Seeley Lake real estate agent, also testified for Lindey’s. He testified that the underground tanks would increase the sales value of adjacent property. He admitted, however, that his experience with such appreciation occurred fifteen years ago.
Michael Pat Goodover, Jr., Goodover’s son, also testified as an expert realtor. As a member of the Montana Association of Realtors Risk Reduction Task Force, he concluded that the underground storage tanks decreased the sales value of the adjacent lot.
The District Court determined that the reasonable rental value of Goodover’s property was $350 per week and that the encroachments caused a 10% reduction in the value of the lot. Therefore, the court calculated that 10% of $350 yielded damages of $35 per week for loss of use of property. The court awarded $35 per week from August 1986 through August 1991, arriving at a total damage award of $9,100 for loss of use of property, and ordered $2,540 of that amount forfeited from the appeal bond. The court also awarded $500 in supplemental relief for the fire code violation and $350 per week coercive damages for every week the encroachments remained on the property after the July 20, 1991, deadline for removal.
Lindey’s raises a profusion of related arguments concerning the District Court’s determination and computation of damages. Specifically, Lindey’s claims that the District Corut erred in awarding damages in excess of those in the complaint and supplemental petition, that it admitted and relied on expert testimony in error, and that it erroneously computed the damages. We address these three claims individually.
First, Lindey’s claims that the District Court erred in awarding damages beyond those requested in the second amended complaint and the petition for supplemental relief, thereby denying it “fair notice” of Goodover’s damages. This argument is without merit. Goodover brought this action to quiet title and for declaratory relief. The Uniform Declaratory Judgments Act provides for supplemental relief to enforce a declaratory judgment. Section 27-8-313, MCA, reads:
Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by a declaratory judgment or decree to show cause why further relief should not be granted forthwith.
In this case, Goodover filed a motion to show cause, requesting the court to order Lindey’s to remove the encroachments. Lindey’s concedes that this motion served as a supplemental petition under Section 27-8-313, MCA. The District Court issued the order to show cause pursuant to the statute and held a hearing. In a corrective order issued after the hearing, the District Court expressly reserved continuing jurisdiction over the issue of damages. As we said in Goodover II, this statute enables the district court to retain jurisdiction and grant further relief as it deems necessary and proper to enforce the declaratory judgment. 246 Mont. at 82, 802 P.2d at 1260 (emphasis added). We held that in fashioning the remedy, the court is not bound by relief requested in the complaint but may order any relief needed to effectuate the judgment. Id. In this case, the District Court retained jurisdiction to grant relief necessary to enforce its judgment under the Uniform Declaratory Judgments Act and its earlier orders. The District Court correctly determined that monetary damages and coercive relief were necessary to provide complete relief to Goodover.
Furthermore, Rule 54(c), M.R.Civ.P., states that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings. Goodover’s failure to request specific money damages or coercive damages does not hinder the District Court’s ability to order any relief necessary to effectuate its judgment. We hold that the District Court did not err in awarding damages in excess of those requested in the complaint and petition for supplemental relief.
Second, Lindey’s objects to the expert testimony relied on by the District Court in computing damages. Lindey’s claims that Goodover’s expert, Hayes, was not qualified as an expert and should not have been allowed to testify about property values. The trial court’s determination that a witness is qualified to testify as an expert will not be disturbed absent a showing of abuse. Price Bldg. Service Inc. v. Christensen (1985), 215 Mont. 372, 375, 697 P.2d 1344, 1346. Hayes was a licensed realtor with over fifteen years’ experience in selling and renting property in Missoula County. The District Court did not abuse its discretion in allowing Hayes to testify as an expert.
Lindey’s further argues that the trial court erred in choosing Hayes’ valuation over those of its experts, Macon and Rich. The trial court is free to select and reject appraisal values, so long as there is substantial credible evidence in support of the value selected. In re Marriage of Williams (1986), 220 Mont. 232, 242, 714 P.2d 548, 554 (citations omitted). In this case, Hayes’ testimony provided substantial credible evidence to support the court’s valuations. We hold that the District Court did not err in adopting the values testified to by Hayes.
Third, Lindey’s challenges the amount of damages awarded for loss of use of property, coercive relief, and the fire code violation. Lindey’s begins by arguing that the District Court erred in computing the damages for loss of use of property. The detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of such occupation. Section 27-1-318, MCA. Reasonable rental value is a proper estimation of the value of use of property. Smithers v. Hagerman (1990), 244 Mont. 182, 191, 797 P.2d 177, 183; Pritchard Petroleum Co. v. Farmers Co-Op (1947), 121 Mont. 1, 7, 190 P.2d 55, 58. Lindey’s argues that the District Court should have taken into account the appreciation of the property during litigation when determining reasonable rental value. Lindey’s cites no authority for its position and, in any event, presented no evidence on the effect of appreciation on rental value. The District Court did not err in its computation of reasonable rental value of the property encroached upon by Lindey’s.
Lindey’s additionally argues that the District Court should not have awarded damages for loss of use for the winter months because Goodover did not use the property in the winter. Therefore, Lindey’s contends, the court could not have attributed any damages to the appeal bond prior to the second appeal because that period of time fell during the winter. Based on Hayes’ testimony, Lindey’s asserts that Goodover used his property for only fourteen weeks in the summer of 1990. The transcript reads:
Q Now what is the rental season up in Seeley Lake, generally speaking?
A From May through September.
Q Okay. And approximately how many weeks per summer if you —
A Probably about 14 weeks would be prime time.
Hayes’ testimony does not support Lindey’s factual contention. Rather, it refers to rental property in Seeley Lake in general, not Goodover’s property in 1990; it also refers to “prime time” rental season only.
Moreover, the encroachments continued year-round. Section 27-1-318, MCA, authorizes damages for the wrongful occupation of property for the time of the wrongful occupation. The District Court did not err in applying the reasonable rental figure to each week the encroachments existed.
Lindey’s argues that the amount of coercive damages the District Court awarded to Goodover was in error. As discussed in Goodover II, coercive damages are a proper tool to enforce a declaratory judgment. 246 Mont. at 82, 802 P.2d at 1260. Here, the coercive damages managed to accomplish what five years of litigation could not — remove the encroachments. The District Court did not err in awarding $350 per week for every week the encroachments remained on Goodover’s property.
Finally, Lindey’s claims that by awarding $500 in supplemental relief for the fire code violation and $35 per week for loss of use of property, the District Court put Lindey’s in “double jeopardy.” We disagree. We note initially that double jeopardy is a term of art not applicable to a civil proceeding. We assume Lindey’s is arguing that the court awarded double damages for the same violation. That is not the case here.
The District Court computed the award of $35 per week by figuring the loss of use of property caused by the encroachments over the five year period. The court also awarded $500 in supplemental relief for the fire code violation in lieu of removing the underground storage tanks. The underground tanks posed possible environmental and fire hazards that affected the property value separately and distinctly; Hayes, Rich and Goodover, Jr. all testified as to the impact of the storage tanks on the value of the real estate. The court is not bound by the opinion of a particular party or expert but remains free to adopt any reasonable valuation that is supported by the record. In re Marriage of Dzivi (1991), 247 Mont. 165, 167, 805 P.2d 567, 568. The District Court did not err in awarding a separate $500 damage award for the underground storage tanks.
In sum, the District Court made extensive findings of fact regarding damages and how they were computed. These findings are not clearly erroneous under the three-part “clearly erroneous” test we enunciated in Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. First, the testimony of Hayes, Goodover, Rich and Goodover, Jr. provides substantial credible evidence supporting the District Court’s valuations. In addition, the District Court did not misapprehend the effect of the evidence. Finally, we are not left with a definite and firm conviction that a mistake has been made. We hold that the District Court did not err in its determination and award of damages.
III.
Did the District Court err in ordering Lindey’s to pay for the transcription of a video-taped deposition?
Gary Johnson testified for Lindey’s at a hearing on March 14,1991. He was unable to complete his testimony that day and the parties agreed to a perpetuation deposition pursuant to Rule 30, M.R.Civ.P., to allow Johnson to complete his testimony. The deposition was taken a few days later. Goodover subsequently moved the court to order Lindey’s to provide a written transcript of the video-taped deposition; the District Court granted the motion on April 8,1991. Lindey’s filed its objection to Goodover’s motion on April 10, 1991. Lindey’s now argues that the District Court violated Rule 2 of the Uniform District Court Rules in issuing the order.
Rule 30(h)(1)(c), M.R.Civ.P., specifically allows the court, upon motion for good cause, to order the party who took the video deposition to furnish a transcript of that deposition at that party’s expense. The expert testified on Lindey’s behalf, and Lindey’s took the deposition for the convenience of its expert. Also, Lindey’s original objection to Goodover’s motion was not based on an asserted violation of U.D.C.R. 2. This Court will not address on appeal an issue not presented to the district court. Wyman v. DuBray Land Realty (1988), 231 Mont. 294, 299, 752 P.2d 196, 200. The District Court did not err in ordering Lindey’s to pay for the transcription of Gary Johnson’s video-taped deposition.
IV
Did the District Court err in admitting hearsay evidence of a reduction in the taxable value of Goodover’s property?
Lindey’s claims that the District Court erred by allowing Goodover to testify to inadmissible hearsay. When asked whether he had approached the local County Tax Appeal Board about the value of his lot, Goodover responded “[t]he Tax Appeal Board ruled during the legislation [sic], the legal involvement, they would reduce my property taxation value by $10,000.00.” Lindey’s objected that the answer required hearsay, and the District Court overruled the objection.
Under Rule 801 of the Montana Rules of Evidence, hearsay is defined as a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 602, M.R.Evid., states:
A witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.
The term “hearsay,” as used in the law of evidence, signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited. State v. Sharbono (1977), 175 Mont. 373, 387, 563 P.2d 61, 69, quoting State v. Crean (1911), 43 Mont. 47, 59, 114 P. 603, 607. Goodover’s testimony established his personal knowledge of the reduction. He personally participated in the tax reduction proceeding and has first-hand knowledge of the reduction in the taxable value of his property. Therefore, his testimony does not constitute hearsay. We hold that the District Court did not admit hearsay evidence of the reduction in the taxable value of Goodover’s property.
V.
Can Lindey’s raise issues that were raised or should have been raised in an earlier appeal?
Lindey’s claims the District Court’s Conclusion of Law XIII is not supported by the record. The conclusion reads:
Current Fire Marshall regulations in effect since 1985, require a set back of at least three feet from property boundaries for underground fuel storage tanks. (Source, Uniform Fire Code 79.601(a), Testimony of Sisk.)
This Conclusion of Law is a verbatim repetition of Conclusion of Law VIII in the District Court’s February 23, 1990 order appealed to this Court in Goodover II. Having failed to raise the issue in Goodover II, Lindey’s cannot now raise the sufficiency of the evidence to support this conclusion. Downs v. Smyk (1982), 200 Mont. 334, 343, 651 P.2d 1238, 1242.
Similarly, Lindey’s attempts to resurrect the argument that the equitable doctrine of laches should defeat Goodover’s claim of encroachment. As Goodover points out, a careful look at Lindey’s appellate brief in Goodover II reveals the same argument. We stated in Goodover IT.
Lindey’s raises a myriad of issues in an attempt to relitigate the boundary-line question. We refuse to examine these arguments, however, because the boundary-line issue was reviewed and finally decided during the first appeal to this Court. The District Court’s determination of the boundary line is thus res judicata and cannot be reconsidered on this appeal.
246 Mont. at 82, 802 P.2d at 1260. Lindey’s again argues that Goodover’s alleged delay in acquiring a survey should bar the claim of encroachment. This argument has no more merit now than it did when Lindey’s raised it in Goodover II. All issues relating to the boundary and the encroachments are res judicata.
VI.
Did the District Court err in awarding costs to Goodover?
Lindey’s makes several objections to the bill of costs submitted by Goodover and approved by the District Court. Lindey’s claims the District Court erred by awarding $570 to Goodover for expert witness fees. We agree.
Legal fees of witnesses, plus mileage, are allowable statutory costs under Section 25-10-201, MCA. By statute, an expert witness is a witness and receives the same compensation as a witness. Section 26-2-505, MCA. The statutory witness fee in a civil case is limited to $10 per day. Section 26-2-501, MCA. A party may pay an expert witness any fee he or she chooses, but a district court cannot award costs in excess of $10 per day per witness. Witty v. Pluid (1986), 220 Mont. 272, 274, 714 P.2d 169, 171. From our review of the record of the hearing, Hayes, Gregory Martinsen and Goodover, Jr., each testified one day for Goodover; thus, the total witness fee awardable as costs for those witnesses is $30. We hold that the District Court erred in the amount of witness fees awarded as costs to Goodover.
Lindey’s also asserts that the District Court erroneously awarded Goodover the costs of the survey used to prepare the map that located the storage tanks. We disagree. This map was introduced through Goodover’s expert Martinsen as Plaintiff’s Exhibit 1. Under Section 25-10-201(8), MCA, reasonable expenses for making maps are allowed if required and necessary for use at trial or hearing. Lindey’s claims that Goodover’s exhibit was not necessary because Lindey’s submitted a report locating the tanks in July. However, Goodover’s survey is more detailed than, and different in result from, Lindey’s report. Expenses incurred in preparing maps for the express purpose of explaining the factual situation to the court are allowed as recoverable costs. Funk v. Robbin (1984), 212 Mont. 437, 449, 689 P.2d 1215, 1222. The District Court did not err in awarding Goodover $524.45 in costs for reasonable expenses in preparing the map.
VII.
Did the District Court err in awarding attorney’s fees to Goodover?
Lindey’s argues that the District Court erred in awarding Goodover attorneys fees. We agree.
To support its award of attorneys fees, the District Court made the following findings of fact in its January 2, 1992, order:
[XXXI] Beginning with the hearings held on supplementary relief, counsel for Lindey’s, Inc., has attempted to interject the relitigation of the original boundary issue, exhibits related to the relitigation of the boundary issue, and other extraneous matters rather than to address the issues before the Court. Again, based on this Court’s extensive experience as a Trial Judge, these efforts were transparent attempts to vex, obstruct, and delay the proceedings in this case.
[XXXII] On April 8,1991, this Court issued an Order requiring the transcription of a deposition of one of Lindeys, experts. The strategy employed by Lindey’s, Inc., and its counsel to delay and vex compliance with this valid Court Order are as follows:
A. Telling the private Court Reporter who reported at this deposition that they would not guarantee payment.
B. Filing a premature Writ of Certiorari to the Montana Supreme Court which was dismissed.
C. Maintaining that while they did not possess the tape, they had not lost the video tape which the Court Reporter’s notes indicated had been delivered to them ... and which the Court records indicate had never been filed.
D. Only agreeing to guarantee payment for the video tape after a Rule 37(b) Motion had been filed by Plaintiff’s counsel and a hearing date set.
E. Finally acknowledging that the video tape was in the possession of Mr. Lindemer in late July 1991.
F. The deposition was finally transcribed on July 31, 1991. A delay caused exclusively by Lindey’s actions of approximately four months.
G. These actions by Lindey’s, Inc., have also delayed the determination of the Contempt Issue which was submitted to this Court on June 14, 1991, but couldn’t be decided until the transcript was prepared.
[XXXV] Based on the slow progress made in this case, due in large measure to Defendant Lindey’s frequent attempts to relitigate this case, both at the District Court and Supreme Court level, the number of extraneous exhibits and issues which this Court often admitted over objection, despite their minimal relevance, materiality and/or weight, the Court finds that in this particular case, the exercise of its equitable powers to award the Plaintiff its reasonable attorney's fees is justified.
[XXXVI] Such actions by Lindey’s during the pendency of boundary litigation and its subsequent refusal to move the encroachments even after the boundary dispute was resolved are actions taken in bad faith and with malice and are the factual basis for the Court’s award of attorney’s fees to Plaintiff.
The District Court concluded that these factual circumstances justified the exercise of its equitable powers and awarded Goodover reasonable attorney’s fees.
The longstanding rule in Montana is that, absent statutory or contractual authority, attorney’s fees will not be awarded. Bitney v. School Dist. No. 44 (1975), 167 Mont. 129, 137, 535 P.2d 1273, 1277; Ehly v. Cady (1984), 212 Mont. 82, 100, 687 P.2d 687, 696; Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605 P.2d 1107, 1112. This rule, also called the American Rule, prohibits fee shifting in most cases. Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141, 147. The District Court did not rely on any statute or rule of civil procedure in its award of attorney's fees. Instead, the District Court first relied on a United States Supreme Court decision that discussed the powers of the federal district court to assess attorney’s fees as an appropriate sanction under the “bad faith” exception to the general rule. The District Court then concluded that its general equity power to make a party whole in some cases included the right to award attorney’s fees, and that Lindey’s bad faith and malicious behavior towards Goodover merited such an award.
In isolated instances, a district court may award attorney’s fees to make an injured party whole under its equity powers. Foy v. Anderson (1978), 176 Mont 507, 511-12, 580 P.2d 114, 116-17; Holmstrom Land Co. v. Hunter (1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363; Stickney v. State, County of Missoula (1981), 195 Mont. 415, 418, 636 P.2d 860, 862. We have invoked the “equitable” exception to the general rule infrequently, however, and only in cases with particularly limited facts.
In Foy, Eggan and Foy were passengers in a car struck from the rear by Anderson. Eggan sustained only minor injuries and did not file a claim against Anderson. Anderson filed a declaratory action against his insurer and sought to bring in Eggan as a third party, alleging that Eggan had asserted a claim against him. We held that because Eggan asserted no claim against Anderson, and she was forced to hire an attorney to write and argue her motion to dismiss through no fault of her own, she would not be made whole without an award of attorney’s fees. 176 Mont. at 512, 580 P.2d at 117.
In Holmstrom, the district court issued an order to the water commissioner, defendant Hunter, to charge all water flowing from Newlan Creek to Holmstrom. Holmstrom refused to pay and Hunter padlocked his headgates. Holmstrom then brought a civil action against Hunter. We held that Hunter acted pursuant to a court order, was forced to retain counsel, and as a matter of equity required an award of attorney’s fees. 182 Mont. at 48, 595 P.2d at 363. We reasoned that if water commissioners were required to defend suits out of their personal funds for suits brought against them for their official acts, no one would be willing to serve as a water commissioner. Comparing the case to Foy, we stated, “[j]ust as Anderson had no reason or justification for dragging Eggan into the lawsuit ..., Holmstrom had no reason to sue Hunter.” 182 Mont. at 49, 595 P.2d at 363. Again, this award of attorney’s fees was based on our inherent equitable power to grant the relief that justice requires.
We applied the Foy exception again in Stickney with similar limitations. In Stickney, Justice of the Peace Jensen asked several spectators in her courtroom to leave before a trial, they refused, and she found them in contempt. 195 Mont. at 416, 636 P.2d at 861. The spectators sued Jensen in her personal capacity for official misconduct in office. We held that the facts as pleaded presented no basis for personal liability, therefore the attorney’s fees awarded by the district court were proper. As in Foy, Jensen was forced to personally defend against a frivolous action through no fault of her own. 195 Mont. at 418, 636 P.2d at 862.
This equitable exception to the general rule is available in those unique factual situations in which a party is forced into a frivolous lawsuit and must incur attorney’s fees to dismiss the claim. In such cases, equity requires an award of attorney’s fees to “make the party whole.” We have rejected many efforts to expand the limited application of Foy and its progeny. Indeed, two months after the Foy decision, we sharply limited its applicability in Masonovich v. School District No. 1 (1978), 178 Mont. 138, 582 P.2d 1234.
The plaintiff in Masonovich obtained a preliminary injunction against the defendants and included attorney’s fees in his memorandum of costs. We distinguished Foy, stating:
In the instant case the plaintiff’s position is entirely different from the third party defendant’s position in Foy. Here, plaintiff obtained an attorney to institute legal action. He did not obtain an attorney to help him defend against a claim against him as in Foy. Plaintiff freely chose to obtain the services of a private attorney to institute a suit against others ....Foy is distinguishable on this basis and is not controlling in this case.
178 Mont. at 141, 582 P.2d at 1236 (emphasis added). Goodover’s position as the plaintiff in this litigation, as we explained in Masonovich, normally will preclude an award of attorney’s fees under Foy.
We again explained the distinguishing characteristics of Foy in State ex rel. Wilson. v. Dept. of Natural Resources (1982), 199 Mont. 189, 202, 648 P.2d 766, 772, stating:
The Foy exception has been narrowly drawn and is applicable only where the action into which the prevailing party has been forced is utterly without merit or frivolous.
Here, Goodover was not forced into wholly frivolous litigation through no fault of his own; he filed suit against Lindey’s. Furthermore, if the losing party had a reasonable basis to believe his cause might prevail, the Foy exception is inapplicable. Id. Lindey’s has prevailed at various points in this litigation, and we did not determine its earlier appeals to be utterly without merit. Foy and its progeny are distinguishable from the present case and do not form a basis for an award of attorney’s fees.
In addition to the equitable exception invoked to make a party whole, some states and the federal courts have adopted a bad faith exception to the American Rule. See Chambers v. NASCO, Inc. (1991) _U.S._,_, 111 S.Ct. 2123, 2133, 115 L.Ed.2d 27, 45. Montana has not expressly adopted a malicious or bad faith equitable exception to the American Rule and we decline to do so at this time. In the present case, the District Court relied on Joseph Russell Realty Co. for the proposition that this Comb announced therein a “bad faith or malicious or fraudulent basis” for the award of attorneys fees. This reliance is misplaced.
In Joseph Russell Realty Co., the plaintiff argued that attorneys fees should be awarded when another’s fraudulent act is the cause of litigation, citing Home Ins. Co. v. Pinski Brothers, Inc. (1972), 160 Mont. 219, 500 P.2d 945. We stated that assuming this exception exists, it was not applicable to the facts in that case because the defendant had not acted fraudulently, maliciously or in bad faith. Joseph Russell Realty Co., 185 Mont. at 505, 605 P.2d at 1112.
Joseph Russell Realty Co. cited Home Ins. Co. for the possibility of a “fraudulent exception” to the American Rule but did not rely on or apply such an exception. In Home Ins. Co., this Court awarded attorney’s fees against an insurer based on its breach of its duty to defend an insured, not on a fraudulent exception to the American Rule. Home Ins. Co., 160 Mont. at 228, 500 P.2d at 950. Under the Home Ins. Co. rationale, we have steadfastly refused to extend this narrow exception beyond those cases in which an insurer breaches its duty to defend.
We recently refused to extend the Home Ins. Co. exception to cover the situation in which an insurer wrongfully refused to provide coverage to the insured. Yovish v. United Services Auto. Ass’n (1990), 243 Mont. 284, 291, 794 P.2d, 682, 686. Although the distinction between failing to defend and failing to provide coverage may be slight, we hesitated to expand the exception to the general rule without legislative authority. Id. Similarly, we will not expand the insurance exception to include the more general exception for bad faith and malice relied on by the District Court in this case. Montana’s statutes and Rules of Civil Procedure, together with the limited Foy exception, provide ample opportunity for awarding attorneys fees when a party or an attorney abuses the judicial system.
The District Court found that the slow progress in this litigation was due in large measure to Lindeys attempts to re-litigate the case both at the District Court and Montana Supreme Court levels. While this may be true to some extent, we did not determine Lindey’s earlier appeals to be wholly without merit. Nor do we agree that Lindey’s should shoulder all of the blame for this lengthy and bitter litigation. In any event, attorney’s fees were neither argued to, nor awarded by, the District Court under Section 37-61-421, MCA.
The awarding of attorney’s fees is within the discretionary power of the district court. Grenfell v. Duffy (1982), 198 Mont. 90, 96, 643 P.2d 1184, 1187. The general rule remains that attorney’s fees will not be awarded to the prevailing party absent statute or contract. This action presents neither a statutory nor a contractual basis for the award of attorney’s fees, nor does it fall within one of the narrow exceptions to the general rule recognized in Montana. Yovish, 243 Mont. at 290, 794 P.2d at 686. We hold, therefore, that the District Court abused its discretion in awarding attorney’s fees.
Affirmed in part, reversed in part and remanded for entry of judgment in accordance with this opinion.
JUSTICES HUNT, McDONOUGH and WEBER concur. CHIEF JUSTICE TURNAGE did not participate.
|
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] |
JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the District Court of the Nineteenth Judicial District, Lincoln County, the Honorable Robert S. Keller presiding. Appellant John Michael Shaw (Shaw) appeals from a judgment entered on a jury verdict finding him guilty of conspiracy to sell dangerous drugs, a felony, in violation of Section 45-4-102, MCA. We reverse and remand.
The issues are:
1. Did the District Court err in allowing rebuttal testimony over defense counsel’s objections that the testimony violated the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52 (the Modified Just Rule), and that the testimony exceeded the scope of cross-examination?
2. Did the District Court err in refusing Shaw’s Proposed Jury Instruction No. 21?
The Lincoln County Sheriff’s Office conducted an undercover drug investigation from September 1990 to May 1991. Kline Gassett served as the primary detective in the investigation and Hal Turner served as the undercover agent. During the course of that investigation, the sheriff’s office obtained sufficient evidence to charge Rodney Reynolds (Reynolds). In order to further the investigation, Gassett offered Reynolds a deal in which Reynolds would work as an agent for the sheriff’s office in return for a recommended suspended sentence and a fine. Reynolds agreed.
The officers provided Reynolds with the names of people, including Shaw and Brian Kair, from whom they wanted Reynolds to try to purchase drugs. Reynolds and Shaw had known each other for a number of years. Reynolds did not know Kair well enough to approach him directly, so he decided to go through Shaw as a means of introduction because Shaw and Kair knew each other well.
Reynolds approached Shaw at the Libby softball fields after practice on May 2, 1991, and asked Shaw if he could get him a pound of marijuana or some cocaine. Reynolds testified at trial, “He [Shaw] said he’d check it out.” Shaw testified as follows:
I told him that the whole team was going to go down to the Mint and I was sure that there was somebody down there that would sell drugs, and that I could probably line him up with somebody that I knew on the team, or whatever.
After practice, Shaw went to the Mint with other team members because the Mint sponsored his softball team. Reynolds also went to the Mint later that day. When he entered the bar, he approached Shaw and the two of them went into the restroom for privacy. Shaw then left the restroom to get Kair. Up to that point Shaw had made no effort to contact anyone about the drugs. When Shaw and Kair returned to the restroom, Shaw told Kair that Reynolds wanted to buy some drugs. Reynolds and Kair then discussed drugs for ten to fifteen minutes. Although Shaw listened to the conversation, he did not take part in it. Reynolds and Kair agreed to meet at the Legion Bar two days later. Shaw did not make further contacts or participate in the deal after making the introduction.
Reynolds and Kair met at the Legion Bar on Saturday as they had planned. Kair did not have the drugs at that time, but set Sunday or Monday as a follow-up date. Reynolds then called Kair on Sunday to see if he could get a sample of the marijuana. Later that day he went to Kair’s residence where he gave Kair’s wife, Jenny, $400 as payment for a four ounce sample of marijuana. The marijuana was supposed to be delivered on Monday. This is the last time Reynolds had contact with any of the people involved.
On May 7, 1991, the Lincoln County Attorney filed a complaint charging Shaw with conspiracy to sell dangerous drugs, a felony, in violation of Section 45-4-102, MCA. A jury found Shaw guilty of the crime charged.
I
Did the District Court err in allowing rebuttal testimony over defense counsel’s objections that the testimony violated the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52 (the Modified Just Rule), and that the testimony exceeded the scope of cross-examination?
During the trial, the State recalled Detective Gassett. During that portion of his testimony, Detective Gassett stated that a search warrant had been issued for the Kair residence. On cross-examination, defense counsel, Mr. Sprinkle, brought out the fact that a search warrant was not issued on Shaw’s residence.
Q. [By Mr. Sprinkle] And you never executed a search warrant on John’s house and recovered any drugs or paraphernalia, did you? A. We didn’t have any reason to do the search warrants on John’s house.
On redirect examination, the county attorney, Mr. Spencer, then elicited the following testimony from Detective Gassett.
Q. You were asked on cross some question about searching Shaw’s house. Did you hear that?
A. Yes.
Q. What was that question again?
A. Did we do a search warrant on Shaw’s residence, or why didn’t we do a search warrant.
Q. Looking for paraphernalia or something?
A. Yeah.
Q. And you did not, did you?
A. No, we did not.
Q. Does that mean you did not have reason to believe that, other than what Rodney Reynolds said, that Brian Shaw was involved in drugs?
A. John Shaw?
Q. John Shaw. I’m having a terrible time with these names. Dyslexia, I guess.
A. Just because we didn’t do a search warrant doesn’t mean anything.
Q. Did you in fact have other evidence that tends to show that John Shaw was involved in drugs?
At this point, Mr. Sprinkle objected to the question as, among other things, beyond the scope of cross-examination and prejudicial. In conference, Mr. Sprinkle argued that his line of questions to Detective Gassett went to show the jury that no evidence existed, other than the events of May 2, 1991, on which to charge Shaw with conspiracy. The State argued, and the court agreed, that Mr. Sprinkle had opened the door with his question about the search warrant.
When the questioning continued, the following exchange occurred:
Q. [By Mr. Spencer] Now, Kline, when we broke we were talking about — I’m not sure what we were talking about, but talking about the search warrant, and is that the only basis you had, or whatever. You recall that question?
A. Yes, sir.
Q. Now — and that is yes or no. Do you have other basis for your determinations that we’re talking about here with John Shaw?
A. Yes.
Q. Are those based on — is that based on information provided to you as part of this undercover operation by Hal Turner?
A. Yes.
Q. Is Hal Turner the 'undercover agent that was hired?
A. Yes, from September to May of’91.
Q. Right. I’m not sure if I ever asked that.
At this point Mr. Sprinkle objected to the testimony on the basis of lack of notice as required by Just. (We point out that the proper authority would have been Matt.) The District Court overruled this objection and Mr. Spencer continued.
Q. One additional question. Is this also based on documented information you have of several years ago?
A. Yes.
Q. Point of fact, eight years ago?
A. Yes.
We disagree with the District Court’s rulings on this matter. We find that this testimony exceeded the scope of cross-examination and was allowed in violation of the notice requirements of the Modified Just Rule.
Rule 611(d), M.R.Evid., governs the scope of redirect examination. It provides:
Re-examination and recall. A witness may be re-examined as to the same matters to which the witness testified only in the discretion of the court, but without exception the witness may be re-ex amined as to any new matter brought out during cross-examination ....
The trial court “has wide discretion in determining the scope and extent of re-examination as to the new matters brought out on cross-examination.” Cline v. Durden (1990), 246 Mont. 154, 161, 803 P.2d 1077, 1081; State v. Heaston (1939), 109 Mont. 303, 316, 97 P.2d 330, 336. We therefore look to whether the District Court abused its discretion by allowing the above testimony from Detective Gassett.
On cross-examination, Mr. Sprinkle asked a series of questions intended to show that no evidence existed, other than the introduction and conversation of May 2, 1991, to establish that Shaw was involved in this conspiracy to sell drugs. In doing so he merely asked Detective Gassett whether a search warrant had been issued for Shaw’s residence. Throughout the trial, he had not denied that Shaw was ever involved in drugs. However, the court determined that this line of questioning was intended to imply that Shaw’s involvement in this matter was purely coincidental. The court then ruled that Mr. Sprinkle opened the door to testimony about Shaw’s prior acts or wrongs of eight years ago.
The State relies on State v. Simtob (1975), 168 Mont. 495, 544 P.2d 1210, and State v. Mix (1989), 239 Mont. 351, 781 P.2d 751, in arguing that Mr. Sprinkle opened the door to this testimony. In Simtob, the defendant’s witness testified that the defendant did not use or traffic in drugs. On cross-examination the State was allowed to bring out the fact that the defendant had been in prison, and on rebuttal the State was allowed to present evidence that the defendant had a reputation as a major drug dealer in Montana. This Court upheld the District Court’s ruling that defense counsel had brought the defendant’s character and reputation in issue and that cross-examination and rebuttal testimony were proper.
In Mix, the defendant testified as to his general character as a peace loving man. This Court upheld the District Court’s ruling which allowed the State to present rebuttal testimony concerning the defendant’s prior attacks on the victim because the defendant had opened the door to evidence regarding his peaceful character. We do not find Simtob or Mix to be controlling.
We do not find that this single question regarding a search warrant can be construed as a suggestion that Shaw was innocent of all drug related activity or that it brought his character into issue. Therefore, the evidence was inadmissible under Rule 404(a)(1), M.R.Evid., which allows the State to rebut a defendant’s character evidence with its own evidence. As we hold that the State could not introduce character evidence on these facts, the rule noted in Mix, whereby evidence of other crimes, wrongs, or acts may be introduced under Rule 404(a)(1) without meeting the Just notice requirements, does not apply.
The State further argues that the requirements of Just (more accurately Matt) do not apply because Detective Gassett’s testimony did not constitute “other crimes” evidence under Rule 404(b), M.R.Evid. That rule provides:
Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The State relies on State v. Sorensen (1990), 243 Mont. 321, 792 P.2d 363, where this Court rejected the defendant’s argument that a photograph of a person standing in a marijuana patch constituted other crimes evidence. The officer in that case testified that he thought the man in the picture was the defendant. In that case we noted that it is not a crime to stand in what appears to be a marijuana patch, the defendant took full advantage of his opportunity to argue to the jury that the man in the picture was not him, and the photo’s prejudicial effect was questionable in relation to all the other evidence presented at trial. In contrast, in the present case Detective Gassett was allowed to testify directly that he had documented evidence tending to show that Shaw was involved in drugs. This is more than a “mere suggestion of illegal or improper conduct” as argued by the State. It is an affirmative statement that the authorities had documented evidence of Shaw’s prior drug related activity. As such, Shaw was entitled to notice that the information would be brought out at trial.
We hold that the District Court abused its discretion by allowing the State to introduce this evidence.
II
Did the District Court err in refusing Shaw’s Proposed Jury Instruction No. 21?
Shaw was charged with violating the conspiracy statute. That statute provides:
45-4-102. Conspiracy. (1) A person commits the offense of conspiracy when, with the purpose that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement has been committed by him or by a coconspirator.
Shaw sought to have the following instruction given to the jury:
“There can be no conspiracy between a defendant and one who only feigns acquiescence in a crime; however, if an undercover agent acts in conjunction with more than one person to violate a law, his participation will not preclude a conviction of the others for a conspiracy among themselves.”
During the settling of instructions, the State argued, and the court agreed, that “[y]ou can have a conspiracy between two people, one of which is an undercover agent who has no intention of breaking the law. That’s settled case law.” However, the State admits to the contrary in its brief, and cites extensive case law on the matter. It is well established that:
“There is neither a true agreement nor a meeting of the minds when an individual ‘conspires’ to violate the law with only one other person and that person is a government agent.” ... An individual must conspire with at least one bona fide co-conspirator to meet the formal requirements of a conspiracy.
United States v. Schmidt (9th Cir. 1991), 947 F.2d 362, 367 (citation omitted); United States v. Kelly (11th Cir. 1989) 888 F.2d 732 (it is legally impossible to conspire with a government agent); United States v. Giry (1st Cir. 1987), 818 F.2d 120 (it takes two to conspire and a government informer is not a true conspirator), cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987).
The State argues that the proposed instruction is only relevant in cases involving one defendant, and that it was not relevant in this case where there were two individuals other than the government agent involved — Shaw and Kair. We disagree given that the State argued on numerous occasions dining its closing argument that a conspiracy could have arisen between Shaw and Reynolds. That is not the law. Shaw was entitled to an instruction that limited the jury to finding a conspiracy between Shaw and Kair; in fact, the instruction was necessary given the State’s argument to the jury. The first part of this instruction serves that purpose. Furthermore, contrary to the State’s argument, the proposed instruction does encompass the situation where more than one individual and a government agent are involved. The second part of the instruction covers that situation.
We hold that the District Court erred in refusing to give Shaw’s Proposed Jury Instruction No. 21.
We reverse and remand for a new trial in conformity with the foregoing.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, TRIEWEILER, WEBER and McDONOUGH concur.
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] |
JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the Workers’ Compensation Court, the Honorable Timothy W. Reardon presiding. Claimant Gloria Weaver (Weaver) appeals the Workers’ Compensation Court judgment that she is not entitled to past and present temporary total disability benefits for certain injuries incurred during the course and scope of her employment at Buttrey Food and Drug. Respondent Buttrey Food and Drug (Buttrey) cross-appeals the Workers’ Compensation Court judgment that Weaver’s back condition is causally related to her work injury. We affirm.
Weaver was injured on June 15,1986, while working as a checker at the Buttrey store in Cut Bank, Montana. At the time of the accident she was a 46-year old high school graduate and married with two dependent children. She had been working at the same Buttrey store for approximately twenty-one years.
The accident occurred when a customer pushed a cart piled high with large canned goods through Weaver’s checkstand. When Weaver opened the front gate of the cart, the cans began to tumble out. To avoid being struck by a can, Weaver jumped backward and sideways with a twisting motion. As she did so, she felt a hot searing pain in her left thigh. She finished her shift, but by that time two large lumps had formed on her thigh. Her supervisor immediately took her to a doctor who diagnosed the injury as a hematoma and recommended elevation and ice packs.
Weaver continued to work at the Buttrey store until September 17, 1986. By then her leg was bothering her so much that she took vacation and then, on the manager’s recommendation, a leave of absence. Buttress insurer paid benefits for temporary total disability from September 17, 1986 until April 4, 1987. During this period Weaver consulted Dr. J. W. Bloemendaal, an orthopedic surgeon in Great Falls. Dr. Bloemendaal diagnosed a possible rupture of the facia around Weaver’s left quadriceps and prescribed physical therapy and exercise to strengthen the muscle. On March 18, 1987, Dr. Bloemendaal wrote to a Workers’ Compensation adjuster, stating that in his opinion Weaver could return to work. Buttrey already had terminated her employment, however, because the six-month disability leave allowed by her union contract had expired. Weaver never returned to the Buttrey store, which burned down in November 1987, though she did apply for work at the new store in 1988.
Weaver considered Dr. Bloemendaal’s letter a “release,” but she did not feel that she could return to work because her leg was weak and she still had lumps on her thigh and numbness down the side of her leg and in her foot. Buttrey’s insurer refused to extend her temporary total disability benefits, however, and after a hearing in July 1987, the Workers’ Compensation Court later denied temporary total disability benefits on the grounds that her leg injury had reached maximum healing on March 18, 1987.
On June 4, 1987, Weaver’s injured leg “gave out” while she was climbing a bleacher at a Little League game. She fell, injuring her left knee and reinjuring her left thigh. Dr. Bloemendaal saw her two weeks later. In his July 1989 deposition, he testified that she would not have fallen “if she had had a good strong quadriceps” and that even after the June 4 accident she still should be able to work if she kept that muscle “in tone and function.” Weaver continued to experience pain, weakness, and numbness in her leg, and at the time of trial in December 1991 she still limped, found it difficult to drive a car, and had curtailed her homemaking and recreational activities.
In August 1988, Weaver petitioned the Workers’ Compensation Court for a determination of permanent partial disability benefits under Sec. 39-71-703, MCA(1985). At the hearing in November 1988, the former manager of the Cut Bank Buttrey store testified that Weaver had worked for him for nearly ten years, that she was an “excellent employee,” and that he would rehire her if she had a release to return to work and he had a position available. Weaver’s vocational rehabilitation counselor testified that Weaver would be physically capable of half-time work as a checker. The court found that Weaver was permanently partially disabled but held that “measurement of her post-injury earning capacity is impossible because of [Weaver’s] failure to introduce evidence necessary for such determination.”
Weaver interpreted the court’s order as a request for additional proof of disability. Accordingly, she consulted Dr. Lawrence Iwersen of the Kalispell Orthopedic Clinic in May 1989, without seeking approval from Buttrey’s insurer. Dr. Iwersen recommended “nerve testing” and referred her to Dr. John Stephens, a rehabilitation specialist in Kalispell. Dr. Stephens saw Weaver twice in June 1989, without approval from Buttrey’s insurer. He ordered magnetic resonance imaging (MRI), which showed a “moderate disk bulge” in her lower back, and conducted an electromyograph study (EMG), which showed no evidence of radiculopathy, or nerve root damage. Despite the negative EMG results, Dr. Stephens wrote in his notes for June 13, 1989 that “it is certainly possible that her work-related injury resulted in the back problem as well as it is possible that the alteration in her gait has aggravated this.”
Dr. Stephens referred Weaver to Dr. James Mahnke, a Kalispell neurologist. Dr. Mahnke performed a complete examination in August 1989 and diagnosed a “structural disease of the lower spine,” which “may respond only to surgery.” Weaver learned of this diagnosis for the first time when she saw Dr. Stephens again in May 1990. In his notes for that consultation, Dr. Stephens stated that Weaver needed further evaluation and treatment, adding, “I would feel on a more probable than not basis that her problem is related to her work-related injury.”
In August 1990, Dr. Stephens referred Weaver to another neurologist, Dr. Stephanie Herder in Great Falls. Dr. Herder recommended nerve conduction studies and another EMG, “in order to definitively rule out or rule in surgery.” Dr. Stephens did repeat the EMG in January 1991 and again found no clear evidence of radiculopathy.
In the meantime, Weaver was working at the tavern that she and her husband had bought in 1985. By 1988 she had taken over the bookkeeping function, replacing a part time employee who had been paid $6.50 an hour. This work occupied Weaver for three hours each weekday morning. During the summer of 1988, she began to assume afternoon and evening bartending duties as well. The bar was equipped with a stool at each end so that she could sit down when not waiting on customers. By 1989 Weaver had taken over the duties of three part-time bartenders, and by the time of the trial in December 1991, she and her husband were doing all the work required to rim the business, seven days a week.
In September 1991, the Weavers sold the tavern to Weaver’s sister and her husband. At her deposition in October 1991, Weaver said that the “anticipated arrangement” for running the tavern would include herself and her husband, “mainly to give us a way to earn a living until things [her Workers’ Compensation claim] are resolved.” At the time of the trial in December 1991, Weaver and her husband were paying themselves, as they had in the past, by “taking cash out of the bar.”
Weaver petitioned the Workers’ Compensation Court for the third time in May 1991, seeking reinstatement of her temporary total disability benefits retroactively and prospectively, as well as medical benefits, costs and attorney’s fees. The basis of her claim was her lower back condition, which had not been reported as an injury at the time of her accident at the Buttrey store in 1986 and therefore had not been considered when her benefits were terminated on April 4, 1987.
The court held that although Weaver was not entitled to temporary total disability benefits, Buttrey’s insurer was responsible for the medical expenses related to her “low back pain” because Dr. Stephens had related the back pain to the June 15,1986 injury. The court found that “a preponderance of the medical evidence” supported the conclusion that Weaver’s lower back injury was caused by the June 15, 1986 accident or by the change in her gait due to her left leg pain. The insurer was held hable only for future medical bills for Weaver’s lower back condition, however, because Weaver had not obtained its approval for the examinations performed by Drs. Iwersen, Stephens, Mahnke, and Herder. The court also found that because Buttrey had not unreasonably refused payment of disability benefits, Weaver was not entitled to the 20 percent penalty authorized by Sec. 39-71-2907, MCA (1985). Weaver was awarded costs and attorney’s fees on the issue of medical benefits only.
The issues on appeal are:
(1) Did the Workers’ Compensation Court err in finding that Weaver’s back condition was caused by her 1986 work injury?
(2) Did the Workers’ Compensation Court err in refusing to reinstate Weaver’s temporary total disability benefits for injuries sustained at the Buttrey store on June 15, 1986?
(3) Did the Workers’ Compensation Court err in denying Weaver medical benefits for the diagnostic work done on her lower back during the 1989-91 period?
(4) Is Weaver entitled to a penalty for unreasonably withheld temporary total disability and medical benefits?
(5) Is Weaver entitled to reasonable costs and attorney’s fees for the disability issue as well as for the medical benefits issue?
I
The first issue is whether the Worker’s Compensation Court erred in finding that Weaver’s lower back injury was caused by her accident at the Buttrey store in June 1986. We will not substitute our judgment for that of the Workers’ Compensation Court when substantial, credible evidence supports the court’s conclusion, as it does here. McIntyre v. Glen Lake Irrigation Dist. (1991), 813 P.2d 451, 455, 48 St.Rep. 579, 581; Anderson v. Hammer (1992), 826 P.2d 931, 934, 49 St.Rep. 165, 167.
The immediate, visible consequences of Weaver’s accident had to do with her left leg. Because she told the physicians who examined her during the next several months that her leg hurt, they focussed exclusively on the leg. Not until May 1989, after Weaver had experienced pain and weakness in her leg for three years, did a doctor suspect that she might have a back problem. The medical evidence accumulated since then establishes that she has a damaged disc in her lower spine but does not establish what caused this injury. It may have been a pre-existing condition that was aggravated by the accident itself or by the fact that the pain in her left leg caused her to limp. Whether it was caused or merely aggravated by the accident, however, it is a compensable disability. Belton v. Carlson Transport (1983), 202 Mont. 384, 386, 658 P.2d 405, 407 (“An accident is compensable if the traumatic event or unusual strain aggravates a pre-existing injury.”). See Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140 (claimant injured his back while working as a logger in 1976 but was entitled to benefits for subsequent disability caused by bending and lifting activities in his work as a lumber grader). We hold that substantial, credible evidence supports the Worker’s Compensation Court’s award of medical benefits for Weaver’s lower back condition.
II
Given that Weaver’s back injury is compensable, the second question is whether she is entitled to temporary total disability benefits for that injury. To be entitled to temporary total disability benefits, a claimant must meet the requirements of Sec. 39-71-116(19), MCA (1985), which defines temporary total disability as:
a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit.
To demonstrate “total loss of wages,” a claimant must establish what jobs constitute her normal labor market and prove complete inability to perform the duties associated with those jobs. Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687 P.2d 1033, 1035. Here, Weaver failed to meet her burden of proving a complete inability to perform the jobs within her normal labor market. She had been working for at least three years as a bookkeeper and bartender, and she had applied for a job as checker in the new Cut Bank Buttrey store. At the trial in December 1991, she stated that she thought she could work as a checker and would “give it a good try,” but that she was waiting for a resolution of her Workers’ Compensation claim before applying at the new Cut Bank IGA store. As the Workers’ Compensation hearing examiner put it, “[t]he evidence of her ability to work is overwhelming.”
Weaver asserts that she has not been “gainfully employed” since her temporary benefits were terminated in March 1987. She is paid no money as a direct wage for her work at the tavern, she says, and receives no benefits. This Court, however, has adopted the “economic gain” standard for determining eligibility for total disability benefits. Anderson v. Hammer (1992), 826 P.2d 931, 936, 49 St.Rep. 165, 168. Under the Workers’ Compensation Act, “wages” simply means gross earnings, or “anything of value received as consideration for work ... constituting real economic gain to the employee.” Scyphers v. H & H Lumber (1989), 237 Mont. 424, 426, 774 P.2d 393, 394.
Here, Weaver and her husband took a “draw” on the tavern income to meet their living expenses. Weaver’s contribution to the effort that generated this income was at least equal to her husband’s. In her October 1991 deposition, for example, she stated that she worked in the bar “three or four nights a week” in addition to her daily bookkeeping duties, and that “I can’t handle it by myself, but my husband is not a bookkeeper and he’s not a bartender. He don’t like it and he’s not good.” Whether Weaver’s share of the tavern receipts is described as a “draw” or “wages,” it has covered her living expenses for at least four years. Indubitably, it is “real economic gain.”
The Workers’ Compensation Court also based its denial of temporary total disability benefits on its previous finding that Weaver had reached maximum healing with respect to her leg injury. That finding was based on Dr. Bloemendaal’s “release” of March 18, 1987. Weaver argues that Dr. Bloemendaal’s opinion referred only to her leg injury, that further evaluation and treatment was needed for the back injury that was discovered in 1989, and that she therefore has not reached maximum healing and is entitled to temporary total disability benefits. We do not address this issue because we hold that Weaver’s earnings from the tavern alone disqualified her for those benefits.
Ill
Next, we must decide whether Weaver is entitled to medical benefits for the diagnostic work done on her back during the 1989-91 period. The Workers’ Compensation Court found that Buttrey’s insurer is not responsible for Weaver’s medical expenses during this period because Weaver neither requested nor obtained authorization from the insurer for her visits to Drs. Iwersen, Stephens, Mahnke and Herder. Rule 24.29.1403, ARM, requires authorization from the insurer for changing a worker’s treating physician or referring a worker to a medical specialist. Carroll v. Wells Fargo Armored Service Corp. (1989), 240 Mont. 151, 783 P.2d 387.
Weaver argues that under Rule 24.29.1403 the injured worker selects the initial treating physician; that Drs. Iwersen and Stephens were the “initial treating physicians for her back injury;” and that under Sec. 39-71-704(1), MCA (1985), Buttrey’s insurer is required to pay for reasonable services provided by those doctors. Further, Weaver argues, because Drs. Mahnke and Herder were neurological consultants for Dr. Stephens, Buttrey’s insurer should pay for their services too.
Weaver did not, however, consult Dr. Iwersen about her back problem. Her purpose in calling him was to find support for her Workers’ Compensation claim, for which Dr. Bloemendaal was the initial treating physician. It is undisputed that she did not ask for authorization to consult Dr. Iwersen or Dr. Stephens and that she also did not seek approval for Dr. Stephens’ subsequent referrals to other doctors. We hold that the Workers’ Compensation Court applied Rule 24.29.1403 correctly in denying medical benefits for the 1989-91 period while awarding future benefits for medical expenses incurred in compliance with the rules.
We distinguish our holding here from our holding in Chapman v. Research Cottrell (1991), 248 Mont. 353, 811 P.2d 1283. In Chapman, the Workers’ Compensation Court denied medical benefits to a claimant who had consulted a neurologist without authorization from her employer’s insurer. We reversed on the grounds that the doctor designated by the insurer as the initial treating physician was not selected by the claimant and had performed no treatment other than to prescribe medication, while the neurologist was selected by the claimant and was the first doctor to diagnose her injury correctly. Here, Dr. Bloemendaal, who was considered by Buttrey’s insurer to be Weaver’s initial treating physician, treated Weaver’s leg extensively from October 1986 through June 1987. His letter of March 18,1987 was regarded by both Weaver and the insurer as a “release” indicating that her leg was healed enough for her to return to work. Moreover, Weaver waited nearly two years after her last visit to Dr. Bloemendaal to consult Dr. Iwersen, while the claimant in Chapman consulted the neurologist within a month after her accident. We held, therefore, that the Chapman claimant had only one initial treating physician, for whom the insurer’s authorization was not required. Here, Weaver changed her treating physician, which does require authorization.
IV
Next, we consider whether Weaver is entitled to a penalty for unreasonably withheld benefits. Section 39-71-2907, MCA (1985), provides that the Workers’ Compensation Court may increase a claimant’s benefit by 20 percent if it finds that payment of compensation has been unreasonably delayed or refused by an insurer. Unreasonableness is a question of fact, and we will not overturn the trial court’s finding if it is supported by substantial evidence. Milender v. Carpenter (1987), 230 Mont. 1, 6, 748 P.2d 932, 935.
Here, Weaver argues that Buttrey’s insurer unreasonably withheld payment of disability and medical benefits for her back injury. We disagree. Since it was not self-evident that this injury was caused by Weaver’s accident at Buttrey’s in June 1986, and since the medical evidence linking the injury to the accident was submitted at least three years after the accident occurred and was somewhat equivocal, denial of the claim was not unreasonable. We hold, therefore, that substantial credible evidence supports the Workers’ Compensation Court’s denial of the 20 percent penalty.
V
Finally, we address the issue of costs and attorney's fees. Under Sec. 39-71-611, MCA (1985), an insurer who denies liability for a claim that is later adjudged compensable by the Workers’ Compensation Cotut is hable for reasonable costs and attorney’s fees. Here, Buttrey’s insurer has consistently denied liability for Weaver’s back injury, which the Worker’s Compensation Court and now this Court have adjudged compensable. Weaver argues that she therefore is entitled to all costs and attorney’s fees incurred in connection with this claim for a back injury. The court awarded costs and attorney’s fees for litigating the issue of medical benefits only.
We held in Buckman v. Montana Deaconess Hospital (1989), 238 Mont. 516, 521, 776 P.2d 1210, 1213, that attorney’s fees should not be awarded for issues on which the claimant did not prevail, for the same reason that an attorney would not receive attorney fees in a case where he did not prevail on any issue. Here, Weaver is not entitled to attorney’s fees and costs associated with the issue of disability benefits because the Workers’ Compensation Court found that she is not entitled to disability benefits at this time. Although, as the court pointed out, Weaver might be entitled to permanent partial disability benefits if she were to apply for them, she is not entitled to attorney’s fees on this issue now. At present, the court has found only the medical benefits to be payable. Therefore, Weaver is entitled to costs and attorney’s fees only for that claim.
Affirmed on all issues.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, McDONOUGH and WEBER concur.
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JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from an order and declaratory judgment of the Eighth Judicial District, Cascade County. The District Court ruled that the collective bargaining strategy exception to the open meeting law, Sec. 2-3-203(4), MCA, is constitutional. We reverse.
We address the following issue:
Is Sec. 2-3-203(4), MCA, the collective bargaining strategy exception to the open meeting law, constitutional under Article II, Section 9, of the Montana Constitution?
Appellant raises an additional issue regarding the District Corut’s refusal to compel discovery of the subject matter of closed meetings. Because we determine the collective bargaining strategy exception to be unconstitutional, the motion to compel need not be addressed.
This action stems from labor negotiations between the respondent, Great Falls Public Schools, Board of Trustees (the Board) and a bargaining unit of teacher’s aides and library aides. The Board engaged a fact-finder to conduct a hearing and make a report and recommendation to the Board in regard to the negotiations for a new bargaining agreement. After the fact-finder entered a written report, dated July 17, 1990, the Board issued an agenda in which it announced that on September 10,1990, a closed meeting would be held to discuss matters related to the fact-finder’s report. The appellant, Great Falls Tribune Company (the Tribune) contacted the Board and, pursuant to the open meeting law, requested the meeting be open. The Board agreed to conduct the meeting in open session.
At the September 10,1990 meeting, there were neither discussions nor deliberations with respect to the report. Instead, the Board moved that the report be rejected, a vote was taken and nothing further in regard to the report took place. There is a factual dispute regarding whether or not the Board conducted discussions relating to the fact-finder’s report outside of and prior to the September 10, 1990 meeting. The Tribune alleges that discussions between members of the Board were held privately, specifically to avoid the requirements of the open meeting law. The Board denies such meetings occurred, suggesting that any discussions that may have taken place prior to the September 10, 1990 meeting were not “meetings” within the meaning of the applicable law. Further, it argues that any meetings that may have taken place were entitled to be secret because they pertained to collective bargaining strategy.
The Tribune initially filed this action against the Board alleging violation of the open meeting laws and the “right to know” provision of Sec. 2-3-203, MCA, and Article II, Section 9, of the Montana Constitution. The Board filed a counterclaim requesting declaratory judgment that meetings held by the Board were lawful and proper and that the collective bargaining strategy exception to the open meeting law, Sec. 2-3-203(4), MCA, is constitutional. The court granted the Board’s motion for summary judgment on its counterclaim holding that the collective bargaining strategy exception is constitutional and was properly invoked. This appeal followed.
Section 2-3-203(4), MCA provides:
Meetings of public agencies and certain associations of public agencies to be open to the public - exceptions.
(4) However, a meeting may be closed to discuss a strategy to be followed with respect to collective bargaining or litigation when an open meeting would have a detrimental effect on the bargaining or litigating position of the public agency.
The constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be presumed, unless its unconstitutionality appears beyond a reasonable doubt. Fallon County v. State (1988), 231 Mont. 443, 445, 753 P.2d 338, 339.
The Tribune contends that the collective bargaining strategy exception is constitutionally infirm because it expands on the limited exception allowed under Article II, Section 9, of the Montana Constitution. Article II, Section 9, of the Montana Constitution provides:
Right to Enow. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Essentially, the Tribune argues that under Article II, Section 9, a public agency may close meetings for the sole purpose of protecting individual privacy. The Tribune contends, and we agree, that the instant case does not involve a matter of individual privacy but instead involves a public agency desiring privacy.
To determine the meaning of a constitutional provision we employ the same rules of construction employed to construe statutes. Keller v. Smith (1976), 170 Mont. 399, 553 P.2d 1002. The intent of the framers of a constitutional provision is controlling. The intent should be determined from the plain meaning of the words used. If that is possible, we apply no other means of interpretation. State v. Cardwell (1980), 187 Mont. 370, 609 P.2d 1230.
The Board argues that Article II, Section 9, of the Montana Constitution is ambiguous because the word “deliberations” is not clearly defined. The plain meaning of “deliberations” allegedly fails to clearly provide the intended scope of Article II, Section 9, and therefore, the Board argues, it is appropriate to resort to extrinsic aids and rules of construction. The dispositive issue is whether Article II, Section 9, requires a balancing of the right to know with other constitutional provisions and policy considerations or whether individual privacy is the only matter against which the right to know should be balanced.
We have clearly held that Article II, Section 9, of the Montana Constitution is unambiguous and capable of interpretation from the language of the provision alone. Great Falls Tribune v. District Court (1980), 186 Mont. 433, 437, 608 P.2d 116. Associated Press v. Board of Education (1991), 246 Mont. 386, 804 P.2d 376. In Associated Press, we noted Article II, Section 9, to be “unique, clear and unequivocal” and held that:
We are precluded, by general principles of constitutional construction, from resorting to extrinsic methods of interpretation.
Associated Press, 246 Mont. at 391, 804 P.2d at 379. We decline the Board’s invitation to revisit the already settled question of whether we will use extrinsic aids or rules of construction to interpret Article II, Section 9, of the Montana Constitution. We conclude that Article II, Section 9, is clear and unambiguous and does not require extrinsic aids or rules of construction to ascertain its intent that all meetings shall be open except when individual privacy matters are implicated.
Article II, Section 9, clearly instructs that when the demand for individual privacy exceeds the merits of public disclosure, the public’s right to know may be limited. The right to know provision was designed to provide the public information to enable citizens to determine the propriety of governmental actions. Mountain States v. Department of Pub. Serv. Reg. (1981), 194 Mont. 277, 285, 634 P.2d 181, 186-187.
The Board argues that Article II, Section 9, is subject to balancing against other constitutional provisions. Specifically, the Board argues Article X, Section 8, of the Montana Constitution, among others, provides school boards supervision and control of schools in their district. Supervision and control is argued to include a duty to bargain effectively and to spend monies in an effective and responsible manner. The Board urges this Court to make a policy determination whereby the duty to supervise the school district is balanced against the right to know provision of the Constitution.
We are not persuaded by the Board’s argument. First, Article II, Section 9, is not necessarily in conflict with the other constitutional provision as the Board asserts. The Board’s duty to supervise and control its district is not necessarily thwarted by opening its collective bargaining strategy sessions. Second, the Board fails to present a matter of individual privacy as mandated by the Constitution to create an exception to the open meeting law. Third, despite the mandate of power given the local boards to control their schools, Article X, Section 8, does not confer on school boards the power to act in violation of express guarantees contained in the Constitution. For example, school boards must comply with Article II, Section 13, the right of suffrage, etc. of the Constitution. The reasoning applied in Associated Press at 391, 804 P.2d at 379, applies here. We stated as follows:
First and foremost, is the realization that the Constitution is the supreme law of this State. Its mandate must be followed by each of the three branches of government. Therefore, while this Court is authorized to adopt rules governing the practice of law, it may not enact any rule which violates express guarantees contained in the Constitution.
Such reasoning would be applicable if we adopted a procedural rule which violated the due process clause.
The Board relies on Mountain States for the proposition that this Court has engaged in a balancing of competing rights and interests when interpreting Article II, Section 9. In Mountain States, we determined that a corporation’s trade secrets were a matter of individual privacy and that because trade secrets are constitutionally protected property rights, on balance, they exceeded the merits of full public disclosure. Our ruling in Mountain States recognized and fulfilled the mandate of the public’s right to know while simultaneously protecting Mountain States property/privacy interest in trade secrets. We interpreted the section relative to a specific matter as to whether it was encompassed within the meaning of the demands of individual privacy and to the extent the privacy would be protected. Here there is a lack of any individual privacy being involved.
We conclude that pursuant to the clear language of Article II, Section 9, meetings may be closed only when the need for individual privacy exceeds the merits of public disclosure. The collective bargaining strategy exception is an impermissible attempt by the Legislature to extend the grounds upon which a meeting may be closed. We conclude that Sec. 2-3-203(4), MCA, is unconstitutional and the District Court is reversed.
We have been presented with arguments as to the potential hazards of creating an uneven playing field in the statutorily provided collective bargaining arena. However, our decision is governed by the facts and issues of the case before us. The Legislature and the citizens of Montana have the plenary power to take actions necessary to alleviate or eliminate any problems which may be present, or level the playing field, all within the constraints of the Constitution. Reversed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, TRIEWEILER and GRAY concur.
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] |
JUSTICE HUNT
delivered the opinion of the Court.
Appellant David Hoffman appeals from an amended order of the Sixteenth Judicial District, Rosebud County, granting respondent Town Pump, Inc.’s, motion for a directed verdict because appellant failed to exhaust available internal procedures for wrongful discharge prior to filing an action against respondent, as required by Section 39-2-911(2), MCA.
We affirm in part and reverse in part.
Two issues are presented to this Court for review:
1. Did the District Court err in granting respondent’s motion for a directed verdict?
2. Did the District Court err in awarding respondent $25,000 in attorney fees?
In July 1985, appellant David Hoffman was hired by Town Pump, Inc., as a manager-trainee. Within a short period of time, he was made manager of a Town Pump located in East Helena. He worked there for approximately three years, and was then transferred to a Town Pump located in Helena. Appellant earned a monthly salary of approximately $1500 as manager of the store. In addition to a monthly salary, Town Pump store managers had the opportunity to earn bonuses based upon a variety of factors. In June 1989, a dispute arose between appellant and his field representative, Bob Enke, when Enke hired his stepdaughter to work in the same store as appellant. This dispute led appellant to file a grievance with Town Pump. A meeting was held between appellant and Town Pump management. Appellant was offered and accepted a position as a manager of Town Pump in Hardin. Soon thereafter, a manager resigned from the Colstrip store. Appellant was then offered the Colstrip position, which he accepted.
On July 11, 1989, appellant was transferred to Colstrip. During this period, Colstrip was experiencing a severe housing shortage. In order to offset higher housing costs, appellant requested and received a $150 per month wage increase. Apparently Town Pump indicated that it would pay for appellant’s motel costs for seven to ten days. Appellant had insufficient funds to relocate to a rental and stayed in the motel for approximately 24 days. Town Pump notified appellant that they would not pay for the entire motel bill which at this point amounted to $840. Appellant moved out of the motel and lived in his car with his son for approximately two weeks. Appellant alleges that Town Pump knew of his situation but failed to assist even after repeated requests by appellant. Appellant contends that the situation became so intolerable that he was forced to resign. On August 19, 1989, appellant sent a letter of resignation indicating that he was resigning effective August 24,1989.
On August 24, 1989, appellant filed a complaint in District Court alleging that he had been constructively discharged by Town Pump in violation of Montana’s Wrongful Discharge From Employment Act. A jury trial commenced on June 26, 1990. At the close of appellant’s case in chief, respondent moved for a directed verdict. The District Court granted the motion but denied respondent’s request for attorney fees. Respondent filed a motion to clarify the District Court order, and on March 28, 1991, the court amended its order, awarding respondent $25,000 in attorney fees.
I.
Did the District Court err in granting respondent’s motion for a directed verdict?
Appellant argues that the District Court erred in granting a directed verdict because Section 39-2-911(3), MCA, requires that an employer must provide any discharged employee notice of any wrongful termination grievance procedures and supply the discharged employee with a copy of those procedures within seven days. Because respondent failed to notify him of the existence of the internal grievance procedures, appellant was not required to comply with Section 39-2-911(2), MCA.
Respondent maintains that appellant was intimately aware of the grievance procedure. On July 29, 1987, appellant had received and read a copy of the handbook for Town Pump employees which contained a section on employee grievance procedure, and had utilized the procedure during his dispute with Mr. Enke. Respondent concludes that appellant had constructive notice of the procedures and was required to comply with Section 39-2-911(2), MCA. These arguments are moot because the District Corut ruled on different grounds.
Our standard of review for directed verdicts is whether the District Court’s interpretation of the law is correct. Foster v. Albertsons, Inc. (Mont. 1992), 835 P.2d 720, 49 St. Rep. 638. Section 39-2-911(2) and (3), MCA, requires the employer and employee to do the following:
(2) If an employer maintains written internal procedures, other than those specified in 39-2-912, under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this part. The employee’s failure to initiate or exhaust available internal procedures is a defense to an action brought under this part. If the employer’s internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under this part and for purposes of this subsection the employer’s internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions of the employer’s internal procedures extend the limitation period in subsection (1) more than 120 days.
(3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2).
The court determined that it was undisputed that appellant had a copy of the written internal procedures, had knowledge of those procedures, and did not avail himself of those procedures. Appellant terminated his employment on August 24, 1989, the same day that he filed his complaint in District Corut alleging wrongful discharge. By filing the complaint before exhausting respondent’s procedures, appellant effectively precluded respondent from complying with Section 39-2-911(2), MCA. It would have been impossible for respondent to notify appellant of the written procedures within seven days of the discharge prior to the commencement of the action. In this instance, the date of discharge would be the date that appellant’s resignation became effective because that was when, under these facts, there was a complete severance of the employer/employee relationship. See Allison v. Jumping Horse Ranch, Inc., [255 Mont. 410,] 843 P.2d 753. Appellant failed to exhaust respondent’s internal procedures before filing his complaint in District Court and is not excused from complying with Section 39-2-911(2), MCA, because of respondent’s inability to comply with the statute.
In its original order, the District Court granted appellant the right to refile his claim after exhausting respondent’s internal grievance procedure because the statute of limitations for wrongful discharge is tolled pending completion of the grievance procedure. In its amended order, the court did not make a determination on whether appellant could refile his claim in District Court once he completed the grievance procedure. The issue was not briefed by the parties on appeal, and therefore, appellant is allowed to refile his claim in District Court upon completion of respondent’s grievance procedure. We hold that the District Court did not err in granting respondent’s directed verdict.
II.
Did the district court err in awarding respondent $25,000 in attorney fees?
Section 39-2-914, MCA, provides that the parties may submit their dispute to arbitration if they agree in writing to arbitration. Section 39-2-914, MCA, states:
(1) Under a written agreement of the parties, a dispute that otherwise could be adjudicated under this part may be resolved by final and binding arbitration as provided in this section.
(2) An offer to arbitrate must be in writing and contain the following provisions:
(a) A neutral arbitrator must be selected by mutual agreement or, in the absence of agreement, as provided in 27-5-211.
(b) The arbitration must be governed by the Uniform Arbitration Act, Title 27, chapter 5. If there is a conflict between the Uniform Arbitration Act and this part, this part applies.
(c) The arbitrator is bound by this part.
(3) If a complaint is filed under this part, the offer to arbitrate must be made within 60 days after service of the complaint and must be accepted in writing within 30 days after the date the offer is made.
(4) A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this part is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer.
(5) A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevails in such arbitration is entitled to have the arbitrator’s fee and all costs of arbitration paid by the employer.
(6) If a valid offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under this part. The arbitrator’s award is final and binding, subject to review of the arbitrator’s decision under the provisions of the Uniform Arbitration Act.
Respondent sent a written offer to appellant to have the matter settled by arbitration, which appellant rejected. No agreement to arbitrate existed between the parties as required by statute. The award of attorney fees was in error, and therefore, is reversed.
We affirm in part and reverse in part.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and GRAY concur.
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JUSTICE WEBER
delivered the Opinion of the Corut.
This is an appeal from a judgment by the Third Judicial District Court, Powell County, granting plaintiffs’ motion for partial summary judgment and denying defendants’ motion for summary judgment. We affirm.
The issues on appeal are:
1. Was summary judgment appropriate where a realtor’s commission was claimed?
2. Did the District Court err in granting summary judgment to plaintiffs?
3. Did the District Corut err in awarding attorney’s fees to plaintiffs?
H.W. Smith, Jr. and Elizabeth Smith (Smiths) owned the Avon Family Cafe in Avon, Montana. The Smiths wished to sell this property and listed it with brokers James Lane and Deanna Lane (Lanes) who are realtors with Realty West, Lane and Associates. The Listing Agreement was signed on June 20,1986 and was to expire on June 20, 1987 with a 90-day grace period in which the terms were to be effective. Subsequently, the Lanes advertised the property and Edward C. and Diana M. Kibler (Kiblers) answered the ad. The Lanes showed the property to the Kiblers and although interested, the Kiblers could not afford a downpayment on the property.
The Kiblers were, however, interested in a Lease-Purchase Agreement which was agreed to within the time parameters of the Listing Agreement on September 5,1986, after negotiations with the Smiths. The Lease-Purchase Agreement, drawn up by the Lanes’ attorney and containing a provision that the Lanes receive a commission if the option was exercised, was effective for two years ending October 1, 1988. A provision in the Lease-Purchase Agreement also provided for a partial commission payment of $1,000. Such partial payment was made. The agreement provided the terms under which the option could be exercised, and provided for 90 days’ notice to the lessors when the lessees decided to exercise the option to buy.
The Smiths approached the Kiblers on July 3, 1988, before the Lease-Purchase Agreement expired, and wanted to know if the Kiblers intended to exercise their option. Subsequently, negotiations between the Smiths and Kiblers ensued and a title commitment on the property was issued on September 28, 1988, two days before the Lease-Purchase Agreement expired. The closing transaction took place on October 7, 1988, seven days after the expiration date specified in the agreement.
The Smiths refused to pay the remaining portion of the broker’s fee. The Lanes initiated this action on October 28, 1988. The parties filed cross motions for summary judgment. The court held a hearing on May 17, 1991 and granted summary judgment to the Lanes on June 3, 1991. The Smiths appeal the summary judgment entered against them.
I.
Was summary judgment appropriate where a realtor’s commission was claimed?
The Smiths argue on appeal that the District Court should not have considered summary judgment at all because summary judgment is inappropriate where determination of a realtor’s commission is at issue. The Smiths did not argue this to the District Court. We will not address this issue because it was not raised at the District Court level. See Weaver v. Law Firm of Graybill, Ostrem, Warner & Crotty (1990), 246 Mont. 175, 803 P.2d 1089.
II.
Did the District Court err in granting summary judgment to plaintiffs?
Our standard of review on appeal from a grant of summary judgment is a two-pronged determination: we consider whether there are genuine issues of material fact and whether the movant is entitled to judgment as a matter of law. Payne Realty & Housing v. First Security Bank of Livingston (1991), 247 Mont. 374, 807 P.2d 177. To be successful, the movant for summary judgment must show clearly what the truth is. Berens v. Wilson (1990), 246 Mont. 269, 806 P.2d 14. Once this is done, it is incumbent on the non-moving party to come forward with substantial evidence demonstrating there are genuine issues of material fact which preclude summary judgment. Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 797 P.2d 232.
The District Court determined that the Lanes performed their obligation under the Listing Agreement by procuring a buyer to whom the property was sold or conveyed on terms acceptable to the Smiths. The court found no genuine issues of material fact. We agree.
The undisputed material facts contained in the contracts involved are: the Smiths are the sellers who executed an exclusive one-year Listing Agreement with the Lanes as their brokers on June 20,1986, containing the following pertinent provisions:
In the event that [Lanes], or any other brokers cooperating with you, shall find a buyer ready and willing to enter into a deal for said price and terms, or such other terms and price as I may accept, or that during your employment you supply me the name of or place me in contact with a buyer to or through whom at any time within 90 days after termination of said employment I may sell or convey said property, I hereby agree to pay you in cash for your services a commission equal in amount to six percent of the above stated selling price.
The purchasers were the Kiblers who leased the property first and finally exercised an option to buy the property. The Lease-Purchase Agreement in which the option is contained was executed on September 5, 1986, within the time parameters of the Listing Agreement, and it contained a provision that the Lanes immediately receive a partial commission plus the remainder when the purchasers exercised their option.
The title commitment was issued on September 28,1988, two days before the Lease-Purchase Agreement expired and the transaction was closed on October 7, 1988, seven days after the expiration date of the Lease-Purchase Agreement. The terms of the final sale varied somewhat from the Lease-Purchase Agreement. The Smiths refused to pay the remainder of the commission.
On appeal, the Smiths argue that genuine issues of material fact preclude summary judgment. We note that argument was not presented at the District Court level. Smiths argue that there is a question of fact as to the source from which the commission was to be paid. We conclude that the determination of that question is not required in this case. We have reviewed the record and conclude there are no genuine issues of material fact concerning the contract issues which are presented by this case.
The District Court further determined that the Lanes were entitled to summary judgment as a matter of law. The court concluded that the Lanes had performed under their Listing Agreement because they procured a buyer for the property on terms which were acceptable to the seller. Further, the court concluded that the date of the sale must relate back to the time the original option to purchase was given, which, in this case, was within the time frame of the Listing Agreement. The court also concluded that the 90-day notice provision in the Lease-Purchase Agreement was inserted for lessors’ benefit and since the lessor negotiated the sale, they had notice despite the lack of a formal 90-day notice. The court concluded finally that because the Smiths refused to pay the Lanes the remainder of their commission, the Smiths had breached the Listing Agreement.
Appellants contend that the Listing Agreement is an exclusive Listing Agreement and, therefore, ‘procuring cause’ is an inappropriate test to use in determining whether a commission is due. Appellants cite Flinders v. Gilbert (1963), 141 Mont. 442, 378 P.2d 385, for this proposition. The listing agreement in Flinders was a non-exclusive listing agreement where determination of the ‘procuring cause’ among many brokers was a necessary determination. Respondents argue, and we agree, that Flinders does not hold that ‘procuring cause’ is only appropriate to non-exclusive listing agreements.
The procuring cause doctrine permits a broker to show that his or her part of the contract was performed and that the principal reaped a benefit from the efforts. D. Burke, Jr., The Law of Real Estate Brokers, Sec. 3.4 (1992). The doctrine is not confined to consideration of non-exclusive listing agreements; it applies in all situations unless the parties agree otherwise in the listing contract. Id.
Here, the contract contains no such prohibitive provision. The District Court determined that because the brokers had performed their contractual agreement, they were the procuring cause of the sale. We conclude that the brokers produced the Kiblers who purchased the property during the required period under the Listing Agreement. We further conclude that the Lease-Purchase contained a provision granting the Lanes their commission and that the Kiblers bought the property.
Other jurisdictions have used the procuring cause doctrine in tandem with an exclusive listing agreement. Humphrey v. Knobel (Nev. 1962), 369 P.2d 872; Fox. v. Stewart (Ill.App. 1980), 414 N.E.2d 881. These cases, along with recognized treatises, indicate that one instance in which procuring cause is appropriate is in regard to the change of purchase price from a listing agreement to final sales terms. D. Burke, Jr., Law of Real Estate Brokers, Sec. 3.4 (1992). The change in the final terms of the purchase does not automatically eliminate the broker’s commission as appellants contend. All that is necessary for the broker to receive his commission is that the seller and buyer were brought together by the broker:
Where an agent contracts to furnish a purchaser for land at a stipulated price and such agent does furnish a purchaser whom the owner accepts, and in the negotiations of the contract the owner agrees upon and accepts a different price from that at which the agent was instructed to sell, still such agent would be entitled to his compensation...
Barrett v. Ballard (1980), 191 Mont. 39, 47, 622 P.2d 180, 185; citing Shober v. Blackford (1912), 46 Mont. 194, 127 P. 329. Both parties agree that the buyer and seller were brought together by the ad placed by the Lanes.
The terms of the initial contract clearly state that the Lanes are due a commission either on the terms listed in the agreement, or any other terms that the sellers accept. The sellers accepted the terms of the Lease-Purchase Agreement made within the time frame of the Listing Agreement. The sellers also accepted the final terms of the sales contract, agreed to within the time frame of the Lease-Purchase Agreement, which provided the Lanes a commission.
We conclude that the Lanes met their responsibilities under the contract and were the procuring cause of the sale and that the different final contract terms do not deprive the Lanes of their commission.
The District Court further concluded that the date of the sale must relate back to the signing of this Lease-Purchase Agreement. The Smiths argue that this is inappropriate — the transaction was closed seven days after the termination of the Lease-Purchase Agreement and the Lanes are not entitled to a commission. The Lanes argue that other jurisdictions have determined that when an option is exercised, the date of sale relates back to the time the option was given.
The Lease-Purchase Agreement granted a commission to the Lanes if the Kiblers exercised their option to purchase. Basic fairness dictates that the date of sale relate back to the date the option was created in the Lease-Purchase Agreement. The payment of the partial commission to the Lanes demonstrates agreement between the parties that the Lanes were responsible for the sale to the Kiblers.
Other jurisdictions have reached the same results. In a case almost identical to the facts before us, the California Court of Appeals held that the date of final sale relates back to the date the option was given:
It is well established that an option is not a sale of property, but rather a sale of a right to purchase. The option becomes a contract of sale binding on both parties only on acceptance of the option by the optionee. This does not mean, however, that a new contract is in fact made by and at the time of the acceptance. On the contrary, the contract has already been made as far as the optionor is concerned, but is merely subject to conditions which are removed by acceptance. [Emphasis added.]
Anthony v. Enzler (CA App. 1976), 132 Cal.Rptr. 553, 556. The court went on to hold that where options to buy property were granted and executed before the expiration date of the listing agreement, brokers were entitled to commission when the buyer exercised the option, even though the option was not exercised until after the expiration date of the listing agreement. Anthony, 132 Cal.Rptr. at 557.
We conclude that when negotiated within the time parameters of a listing agreement, the date on which a lease-purchase agreement is entered into is the effective date of sale for purposes of determining a broker’s commission.
Appellants further argue that the Lanes are not due a commission because the Kiblers did not execute a notice of intent to buy 90 days before the exercise of the option as the contract requires. The court concluded that the purpose of the provision in the contract was to notice the lessors (Smiths), and the lack of notice does not affect the broker’s commission.
We conclude that the District Court was correct. The 90-day notice provision of the Lease-Purchase Agreement was for the benefit of the Smiths. See Zaniewski v. Mancinone (Conn. 1981), 435 A.2d 50. Thus, the lack of notice does not affect the Lanes’ commission because the Smiths knew about the sale as they alone negotiated the final terms of the agreement.
Finally, we conclude that the Lanes have performed their duties under the Listing Agreement by procuring a buyer on terms acceptable to the Smiths and are entitled to their commission. We further conclude that by refusing to pay the remainder of the commission owed to the Lanes, the Smiths have materially breached their contract and the Lanes are entitled to judgment as a matter of law.
Under these facts, we hold that the District Court did not err in granting summary judgment to the plaintiffs.
III.
Did the District Court err in awarding attorney’s fees to the plaintiffs?
The District Court concluded that because the Smiths had breached the Listing Agreement, and because the Lanes were obliged to enter into litigation to obtain their commission, the Lanes were entitled to reasonable attorney’s fees according to the provision of the Listing Agreement.
Attorney’s fees are properly awarded only when contractually or statutorily provided. Ehly v. Cady (1984), 212 Mont. 82, 687 P.2d 687. Here, the contract specifically states:
In case of suit or action on this contract, it is agreed between us that the court, whether trial or appellate, may allow the prevailing party such sum as may be adjudged that party’s reasonable attorney’s fees.
This language is clear and unambiguous. Where the language is clear, the court need only enforce the contract. Keller v. Dooling (1991), 248 Mont. 535, 813 P.2d 437.
We hold that the District Court did not err in awarding attorney’s fees to the plaintiffs.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and GRAY concur.
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] |
JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the District Court of the Seventeenth Judicial District, Valley County, the Honorable Leonard H. Langen presiding. Appellants Dale and Yvonne Lund (the Lunds) appeal from the Judgment, Decree of Foreclosure and Order of Sale entered against them by default on February 3, 1992. We affirm.
The issues are:
1. Do the provisions of Sec. 25-10-404, MCA, impose a duty on the clerk of court to inform parties that the statute exists?
2. Did the clerk’s failure to inform Dale Lund of the necessity of filing an affidavit in order to proceed in forma pauperis deny the Lunds their opportunity to defend?
3. Should the default judgment be set aside?
Respondent Northwest Farm Credit Services, ACA, (Northwest) is a lending corporation organized under the Federal Farm Loan Act. On April 5, 1990, Northwest loaned $99,923 to the Lunds for operating capital. This note was due and payable on November 1,1990. The Lunds executed a promissory note as evidence of this loan. On March 1, 1991, Northwest loaned $2,500 to the Lunds as operating capital to plant their crops. This note was due on demand. The Lunds executed a second promissory note as evidence of this loan.
As security for the repayment of these loans and previous loans, together with interest and any costs and attorney’s fees Northwest might incur, the Lunds executed and delivered a mortgage on certain lands located in Valley County. The mortgage was dated October, 12, 1988, but it secured future loans within a five year period from that date. As further security, the Lunds executed a security agreement pledging various items of personal property as collateral.
The Lunds failed to repay the promissory notes according to their terms, so on October 15, 1991, Northwest filed its Complaint to Foreclose Real Estate Mortgage and Security Agreement. The Lunds were served with the complaint on October 21, 1991. Dale Lund received help from an attorney, Mr. Martell, in drafting an answer, but Mr. Martell did not sign the answer. He did inform Dale Lund that he could ask the court to waive the filing fee but did not explain the procedure.
Dale Lund attempted to file his answer on November 12, 1991. He did not present the $100 filing fee. As a result, the clerk date-stamped the answer but did not file it. It is unclear from the record exactly what exchange occurred between Dale Lund and the clerk at that time. It appears Mr. Lund neither asked about the procedure for filing as a pauper under Sec. 25-10-404, MCA, nor did the clerk inform him of the procedure. On November 25, 1991, the clerk returned the answer along with a letter stating, “I am returning your Answer forthwith, as I have yet to receive $100.00 for filing the same. Upon receiving the fee, I will at that time file the same.”
On December 9, 1991, the clerk entered the Lunds’ default for failing to plead, answer, or otherwise defend. On January 15, 1992, Northwest filed its Motion for Entry of Judgment, Decree of Foreclosure and Order of Sale and for Award of Attorney’s Fees. Northwest also filed its Notice of Hearing and sent a copy of both documents to the Lunds. Northwest’s attorney, A. Lance Tonn, also enclosed a letter in which he urged the Lunds to seek legal counsel in this matter. Mr. Tonn also spoke with the Lands by telephone on January 30, and once again advised them to seek counsel. He also told them that he would agree to a continuance if the Lunds hired an attorney and wished to put some defenses before the court. The Lunds failed to enlist counsel, however, and the hearing proceeded on February 3, 1992.
At the hearing, Mr. Tonn offered evidence on the legal fees incurred by Northwest in prosecuting this action. The court allowed Mr. Lund to give a statement in which he basically raised his defenses to the initial complaint, although the court refused to reopen the case or accept evidence as to those defenses. Those defenses raised issues as to whether the Lunds had been credited with all their payments and whether they were authorized by Northwest to use proceeds from the sale of two items pledged as security. At best, those defenses, even if valid, would only have gone to reduce the amount the Lunds owed Northwest. Mr. Tonn testified, however, that the foreclosure action would still have proceeded. Even if the statements made by Dale Lund were true, the Lunds would still have been in default on their loans. At the close of the hearing, the Judge signed the Judgment, Decree of Foreclosure and Order of Sale. The court made it clear that Mr. Lund was to have an opportunity to ensure that his account was properly credited. Mr. Tonn assured the court that he would promptly ask that the judgment be amended if there was an error.
I
Do the provisions of Sec. 25-10-404, MCA, impose a duty on the clerk of court to inform parties that the statute exists?
The Lunds argue that Sec. 25-10-404, MCA, imposes a duty on the clerk of court to disclose its existence. That statute reads:
25-10-404. Poor persons not required to prepay fees. Any person, who will file an affidavit stating that he has a good cause of action or defense and that he is unable to pay the costs or procure security to secure the same, may commence and prosecute or defend an action in any of the courts and administrative tribunals of this state; then it is hereby made the duty of the officers of the courts and administrative tribunals to issue all writs and serve the same and perform all services in the action without demanding or receiving their fees in advance.
Although Dale Lund was aware that he could file his answer without paying the fee, it does not appear that he asked Mr. Martell or the clerk how to do so. The functions performed by the clerk must be demanded by law. See Platz v. Hamilton (1982), 201 Mont. 184, 653 P.2d 144; Anderson v. Hinman (1960), 138 Mont. 397, 357 P.2d 895. The only express duty found in this statute requires the clerk to perform all services requested once a party has filed the proper affidavit. This statute does not expressly impose a duty upon the clerk to disclose. Nor, as the Lunds admit, does any other statute impose a duty upon the clerk to disclose the existence of Sec. 25-10-404, MCA. The legislature has not imposed a duty upon clerks to disclose. Although we sympathize with the Lunds and others similarly situated, we are unwilling to impose such a duty. We hold that Sec. 25-10-404, MCA, does not impose a duty on the clerk.
II
Did the clerk’s failure to inform Dale Lund of the necessity of filing an affidavit in order to proceed in forma pauperis deny the Lund’s their opportunity to defend?
As we hold that the clerk had no duty to inform Dale Lund of the necessity of filing an affidavit in order to proceed in forma pauperis, her actions did not deny the Lunds their opportunity to defend. The Lunds must bear responsibility for not defending in this action. In Federal Land Bank of Spokane v. Gallatin County (1929), 84 Mont. 98, 274 P. 288, this Court held that ignorance of the law was no justification for relief from a default judgment. We followed that time-honored principle recently in Donovan v. Graff (1991), 248 Mont. 21, 808 P.2d 491. In Donovan, this Court found that the pro se plaintiffs were not entitled to relief from entry of summary judgment simply because they did not understand the law regarding the filing of papers in support of their motion for summary judgment.
Not only is ignorance of the law not an argument for lack of opportunity to defend, but it was the Lunds’ own inaction that caused them to lose their chance to defend. “Every person is bound to take care of his own rights, and to vindicate them in due season, and in proper order. This is a sound and salutary principle of law.” Federal Land Bank at 111, 274 P. at 291 (quoting Dunne v. Yund (1916), 52 Mont. 24, 33-34, 155 P. 273, 276). We also have a maxim of equity that “the law helps the vigilant before those who sleep on their rights.” Section 1-3-218, MCA. A review of the facts indicates that, aside from ignorance of the law, it was the Lunds’ own inaction that caused them to lose their chance to defend in this action.
As noted above, when the clerk failed to receive the filing fee from the Lunds, she sent a letter on November 25, 1991, stating, “I am returning your Answer forthwith, as I have yet to receive $100.00 for filing the same. Upon receiving the fee, I will at that time file the same.” The Lunds do not deny receiving the letter. However, they did not respond to the letter or take any other action. Two weeks later, on December 9, 1991, the clerk entered their default. The Lunds did nothing in response to the entry of default. When Mr. Tonn sent a copy of his motion and a Notice of Hearing to the Lunds on January 14, 1992, he included a letter in which he urged the Lunds to seek legal advice. Mr. Tonn stated (capitalized in original):
YOU ARE IN GRAVE JEOPARDY OF A JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE BEING ENTERED AGAINST YOU. IF YOUHAVE ANY QUESTIONS ABOUT YOUR LEGAL RIGHTS, YOU SHOULD IMMEDIATELY CONTACT AN ATTORNEY OF YOUR CHOOSING. ONCE AGAIN, IF YOU FAIL TO TAKE ANY ACTION, A JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE WILL BE ENTERED AGAINST YOU.
Although the Lunds received this letter, they did not respond or take any action.
Also, Mr. Tonn spoke with Dale Lund on the telephone on January 30,1992. During that conversation he encouraged Mr. Lund at least three times to contact an attorney because he felt the court world enter the decree. Mr. Tonn offered, however, to stipulate to a continuance if the Lunds hired an attorney and wished to put forth some defenses. Mr. Lund did nothing in response to this offer either. Under these facts, the Lunds were clearly aware of the realities of the situation and were given an opportunity to defend should they choose to. The Lunds, not the clerk, must bear responsibility for losing their opportunity to defend. We hold the clerk’s failure to inform the Lunds was not error.
Ill
Should the default judgment be set aside?
The Lunds neither requested the District Court to set aside the default under Rule 55(c), M.R.Civ.P., nor made a motion for relief from the default judgment under Rule 60(b), M.R.Civ.P. We need only determine whether the District Cotut acted properly when it initially entered the default judgment under Rule 55(b). See Johnson v. Murray (1982), 201 Mont. 495, 656 P.2d 170. Rule 55(b), M.R.Civ.P. governs the entry of a default judgment by the court. In pertinent part it reads:
Rule 55(b). Judgment. Judgment by default may be entered as follows:
(2) By the court. In all other cases the party entitled to a judgment by default shall apply to the court therefor;... If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the applica tion for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the state of Montana.
In this case, the clerk entered the Lunds’ default on December 9,1991. On January 15,1992, Mr. Tonn filed his Motion for Entry of Judgment, Decree of Foreclosure and Order of Sale and For Award of Attorney’s Fees. At that time he also sent proper notice to the Lunds that he would bring his motion on February 3,1992. This is far more advance notice than the three required days. The court held a hearing at which it took evidence from Mr. Tonn on the legal fees incurred by Northwest. It also gave Dale Lund an opportunity to make a statement. He did not dispute the amount of attorney’s fees and costs testified to by Mr. Tonn.
We note that in order to make a prima facie case for foreclosure Northwest was required to show three elements: (1) the debt of the borrowers; (2) nonpayment of the debt; and (3) present ownership of the debt by the lender. First National Bank of Albuquerque v. Quinta Land & Cattle Co. (1989), 238 Mont. 335, 339, 779 P.2d 48, 50. In support of its motion, Northwest submitted the affidavit of Wayne Erlenbush, an authorized agent of Northwest, as evidence of the foregoing. Based on this and a sufficient showing of attorney’s fees, the District Court entered a Judgment, Decree of Foreclosure, and Order of Sale in favor of Northwest.
We hold that the District Court properly entered a default judgment against the Lunds.
Affirmed.
JUSTICES HUNT, GRAY, McDONOUGH and WEBER concur.
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JUSTICE HUNT
delivered the opinion of the Court.
Appellant Mark Lopez appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the District Court of the Eighth Judicial District, Cascade County. At issue is the District Court’s valuation and distribution of the marital estate. We affirm.
We phrase the issues to be considered as follows:
1. Was the District Court’s valuation of appellant’s interest in Century Financial Services, Inc., and the Century Court Partnership clearly erroneous?
2. Did the District Court abuse its discretion in finding that a school loan taken out by respondent after the separation, but prior to the dissolution, was a marital debt to be considered in the valuation and distribution of the marital assets?
3. Was the District Court clearly erroneous in finding that a bank account of $2,577.13 was an asset of the marital estate?
4. Was it an abuse of discretion for the District Court to admit into evidence respondent’s Exhibit D, a report prepared by respondent’s expert witness?
Appellant Mark Lopez and respondent Lauri Lopez were married on June 18, 1977, in Cascade County, Montana. Two minor children were bom during the marriage. The children were ages nine and seven at the time of the dissolution. The parties separated in April 1990, and Mark filed a petition for dissolution on May 24, 1990.
At the time of the parties’ marriage, Mark was employed as a service station attendant. Approximately three years after their marriage, Mark began selling insurance for an insurance company in Great Falls. The District Court found that during the marriage Mark excelled as an insurance salesman. Mark left the insurance company he had been working for, and in the fall of 1987, along with three other individuals, formed Century Financial Ser vices, Inc. (CFS). CFS is primarily involved in the sale of life, health, and disability insurance. Mark is the only employee of CFS and owns 30 percent of the stock.
In the spring of 1989, Mark and the other three shareholders in CFS, formed the Century Court Partnership (partnership). The only asset of the partnership is a commercial building in Great Falls which houses CFS’s office. Mark has a 25 percent interest in the partnership. The commercial building was purchased for $231,000, with Mark’s 25 percent interest costing him an initial investment of $7500.
Prior to the marriage, Lauri had been a student at the University of Montana. Immediately prior to the marriage, Lauri returned to Great Falls and obtained an associate degree in criminal justice from the College of Great Falls. Lauri worked full time until the spring of 1990 when her employment was terminated through no fault of her own. Following her termination, Lauri unsuccessfully sought employment. Lauri is currently in college working toward a degree in special education. After the separation, but prior to the dissolution, Lauri obtained a student loan in the amount of $4000 to enable her to continue her education.
The bench trial in this matter began on March 29, 1991, and concluded on April 2, 1991. On June 17, 1991, the court entered the final decree of dissolution. From the findings of fact, conclusions of law, and decree of dissolution entered by the District Court, Mark brought this appeal. Mark alleges that the District Court’s findings regarding the valuation of several assets of the marital estate were clearly erroneous and must be reversed. The parties stipulation prior to trial regarding child custody, child support, and visitation was adopted by the District Court in the final decree of dissolution and is not at issue in this appeal.
I
Was the District Court’s valuation of appellant’s interest in his insurance business and the Century Court Partnership clearly erroneous?
Mark attacks the findings, conclusions, and decree entered by the District Court as they relate to the valuation and distribution of the marital estate. In the past, district court decisions concerning the division of the marital estate have been reviewed by this court under an abuse of discretion standard. This Court’s standard of review in these cases has been recently clarified. The factual findings of the district court relating to the division of marital property will be reviewed using the clearly erroneous standard. In re Marriage of Sacry (Mont. 1992), 833 P.2d 1035, 49 St. Rep. 452; Rule 52(a) M.R.Civ.P. Concerning this Court’s review of conclusions of law made by a lower court “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for simply determining if the lower court’s conclusions of law are correct is that there is no discretion in determining a question of law. The lower court either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
The courts are obligated to fashion a distribution which is equitable to each party under the circumstances. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350; § 40-4-202, MCA. Working in equity, the courts must seek a fair distribution of the marital property using reasonable judgment and relying on common sense. Reaching this equitable distribution will at times require the court to engage in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed on appeal absent an abuse of discretion by the lower court. Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456.
Mark’s first issue concerns the District Court’s valuation of his interest in his insurance business and the Century Court Partnership. The District Court found that Mark’s interest in his business was $100,240, and his interest in the partnership was $17,000.
We will first review the District Court’s valuation of Mark’s interest in his insurance business. The court’s valuation of $100,240 was based on goodwill, the only asset of the business. Mark concedes that the value of goodwill in a business is to be considered a part of the marital estate and may properly be distributed between the parties. In re Marriage of Arrotta (1990), 244 Mont. 508, 797 P.2d 940. It is the District Court’s valuation of the goodwill in this instance which is disputed by Mark.
Lauri presented testimony at trial from Jack Stevens, a certified public accountant. Mr. Stevens was asked to prepare a valuation of Mark’s business. In preparing the valuation, Mr. Stevens relied on various authorities and information, most of which he included in a written report. This report, respondent’s Exhibit D, was introduced into evidence at trial over Mark’s objection. The method used by Mr. Stevens to calculate the value of goodwill in this case is similar to the method approved of by this Court in In re Marriage of Hull (1986), 219 Mont. 480, 712 P.2d 1317. The method used by Mr. Stevens requires the capitalization of the income generated by the business over and above what the individual would have earned as a salaried employee without the business. These excess earnings or discretionary cash, when capitalized using the appropriate formulas, result in a valuation for goodwill. As the amount of excess earnings increases, so will the value of goodwill. Using this method, Mr. Stevens calculated the value of goodwill in Mark’s business at $102,240.
Mark does not take issue with the method employed by Mr. Stevens in determining the value of goodwill. Mark argues that the wrong numbers were used in the formula, resulting in an exaggerated value for goodwill. Mark called Marshall Bertsch, an accountant, to testify. Mr. Bertsch was asked to use the same formula, but was asked to use a higher number for what Mark’s salary would have been without his business. Mr. Bertsch arrived at a value of $37,039.60 for goodwill in the business. Additionally, Mark called two associates in the insurance industry who testified that the value of goodwill in the business was very little or nothing.
In a dispute over the value of property in a marriage dissolution, the District Court may assign any value that is within the range of values presented into evidence. In re Marriage of Kramer (1987), 229 Mont. 476, 747 P.2d 865. In this instance, the District Court, after weighing all the evidence and the credibility of the witnesses, found the value of the goodwill in the business to be $100,240. This value was within the range of figures presented. The finding of the District Court as to the value of the business is not clearly erroneous.
Mark also disputes the District Court’s valuation of his interest in the partnership. Mark had a 25 percent interest in a partnership which owned as its sole asset a commercial building located in Great Falls. The building was purchased in 1988 for approximately $231,000. Mark’s share of the initial investment in the building was $7500. At the time of trial, the outstanding loan balance on the building was $207,000.
No evidence was presented by Mark concerning the fair market value of the building at the time of trial. When asked on direct examination, Mark answered that he did not know the fair market value of the building. However, evidence was presented that the partnership agreement provided that in the event of the death of a partner the value of the building would be considered to be $275,000. The District Court adopted this figure, subtracted the outstanding balance on the loan, and determined that the partnership equity in the building was $68,000. Mark’s 25 percent interest in the building was valued at $17,000. The District Court’s valuation of Mark’s interest in the partnership was not clearly erroneous.
II
Did the District Court abuse its discretion in finding that a school loan taken out by Lauri after the separation, but prior to the dissolution, was a marital debt to be considered in the valuation and distribution of the marital estate?
Following the parties’ separation, Lauri’s employment was terminated through no fault of her own. When she was unable to find other employment, Lauri decided to go back to school. In order to do so, she took out a student loan in the amount of $4000 prior to the time of dissolution. The District Court considered this debt in determining the net marital estate. Mark argues that the debt should not have been included.
The well-settled rule in Montana is that absent unique circumstances, the marital estate should be valued at or near the time of dissolution. In re Marriage of Swanson (1986), 220 Mont. 490, 716 P.2d 219. However, the appropriate time for valuing the marital estate cannot always be tied to some specific time or event in the dissolution process and the District Court must exercise discretion in determining the proper time for valuation. In re Marriage of Wagner (1984), 208 Mont. 369, 679 P.2d 753. In some instances, a valuation at or near the time of dissolution may effectuate an injustice because of the nature of the assets or the course of conduct by the parties. In re Marriage of Gebhardt (1989), 240 Mont. 165, 783 P.2d 400. The unique circumstances found in the Gebhardt case requiring valuation at a time other than the time of dissolution, are not present in this case. The District Court did not abuse its discretion by including Lauri’s student loan debt in the marital estate.
III
Was the District Court clearly erroneous in finding that a bank account of $2,577.13 was an asset of the marital estate?
The District Court included in the net marital estate $2,577.13 that Mark had in a checking account. Mark testified at trial that following the separation the parties decided to equally divide certain assets and that the $2,577.13 represented his half. On appeal, Mark contends that the amount should deducted from the net assets of the estate, or that an equivalent amount should be charged to the wife. While the record regarding this matter is less than enlightening, it appears that Lauri testified at trial that the $2,577.13 in question was earned during the marriage and that she did not receive an equivalent amount of money. The evidence was conflicting as to whether an equal division of some assets occurred following the separation. In light of the District Court’s opportunity to observe and judge the credibility of the witnesses, we cannot say that the court’s determination in this matter was clearly erroneous.
IV
Was it an abuse of discretion for the District Court to admit into evidence respondent’s Exhibit D, a report prepared by respondent’s expert witness?
Rulings on the admissibility of evidence are within the discretion of the district court. Cooper v. Rosston (1988), 232 Mont. 186, 756 P.2d 1125. Absent an abuse of discretion, this Court will not reverse a district court’s ruling on the admissibility of evidence. Cooper, 756 P.2d at 1127. However, an abuse of discretion by a district court in allowing into evidence that which properly should have been excluded is not always grounds for reversal. In order for the abuse of discretion to warrant a reversal, it must be so significant so as to materially affect the substantial rights of the complaining party. Rule 61, M.R.Civ.P.; Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908.
Mark alleges that much of the material in respondent’s Exhibit D, which was admitted into evidence over objection, is inadmissible hearsay and materially affected his substantial rights. Lauri’s expert testified concerning much of the material which was contained in the report. While some of the material in the report may have been inadmissible hearsay, there is no evidence showing that the admission of the report materially affected Mark’s substantial rights. There has been no showing that the District Court relied on any inadmissible material or that Mark was prejudiced in any way.
Affirmed.
JUSTICES HARRISON, WEBER, McDONOUGH and GRAY concur.
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] |
MR. JUSTICE STARK
delivered the opinion of the court.
This is an action to recover damages for an alleged malicious prosecution of plaintiff by the defendant upon a criminal charge, It has heretofore been before this court (Puutio v. Roman, 76 Mont. 105, 245 Pac. 523), and was remanded to the district court for a new trial. The facts upon which it is based are sufficiently set forth in the opinion on the former appeal, and they need not be repeated here.
Upon the retrial in the district court, the jury returned a verdict in favor of the plaintiff for the sum of $10,000 actual and $10,000 exemplary damages, and a judgment was entered thereon. Defendant made a motion for a new trial upon various grounds, amongst them being that the evidence was insufficient to justify the verdict and that the damages awarded were excessive and appeared to have been given under the influence of passion or prejudice. Upon a consideration of this motion, the courb made an order to the effect that the same should be sustained unless the plaintiff should consent to a reduction of the judgment to the sum of $6,000. The plaintiff duly filed her written consent to the reduction in conformity with the terms of the court’s order. From the judgment as thus modified the defendant has appealed and has made six specifications of error.
1. The first and fourth specifications are based upon a contention that the complaint does not state a cause of action, for the reason that it fails to allege that the prosecution of the criminal action against the plaintiff finally terminated in her favor. This contention is without merit. Paragraph 5 of plaintiff’s complaint contains allegations, showing sufficiently the fact that the prosecution of the criminal action had been terminated in plaintiff’s favor.
2. Specifications of error 2 and 3 relate to the admission of certain testimony in the plaintiff’s case in chief. While the complaint in the criminal action instituted by the defendant in the justice’s court did not state facts sufficient to charge the commission of a crime, that fact did not preclude plaintiff from maintaining an action for malicious prosecution based on the proceedings taken as a result of the filing of such complaint. (Puutio v. Roman, supra.)
One of the probative facts which the defendant deemed necessary to state in this complaint, and which he did state positively under oatli in order to procure the warrant for plaintiff’s arrest, was that she was a prostitute. The testimony to which the above specifications of error are directed is that of two witnesses which tend to establish, from physical conditions, that plaintiff was not what the defendant charged her to be, and that of several other witnesses who testified to an acquaintance with the plaintiff for various periods of time preceding the date of her arrest, and a knowledge of her general reputation for chastity and morality at the place of her residence in and around Red Lodge, and that her general reputation in the named particulars was good in and about the places where she had resided.
In civil actions, as a general rule, the character of the plaintiff is not in issue until the same is attacked by the defendant, and, until so attacked, it is presumed to be good, and there is no necessity or propriety in giving affirmative proof of such character. “This, as a general rule, is undoubtedly the true rule; but in an action for the malicious prosecution of a criminal action, where the main question in the ease is whether the defendant had probable cause for instituting such proceedings, an exception should be made. In such action the plaintiff must prove a negative — that is, prove that the prosecutor did not have probable cause to believe him guilty of the offense charged — and, as bearing upon that question, he ought to be permitted to give evidence of his previous known good reputation.” (Woodworth v. Mills, 61 Wis. 44, 50 Am. Rep. 135, 20 N. W. 728; McIntosh v. Wales, 21 Wyo. 397, Ann. Cas. 1916C, 273, 134 Pac. 274; 38 C. J. 483.)
The testimony disclosed that both plaintiff and defendant had resided in Red Lodge for a period of at least two years prior to the time this controversy arose, that they had been personally acquainted during that period of time and that the defendant was the proprietor of a moving picture theater which plaintiff frequently patronized. If, as testified to by the several witnesses, the plaintiff’s general reputation for chastity and morality in that community was known to be good, it was for the jury to determine whether that general reputation was known to the defendant when he instituted the criminal proceedings against her.
In his endeavor to state facts in the complaint showing that plaintiff had committed a crime, the defendant went further than was necessary in making the assertion that she was a prostitute. Counsel for defendant argues that it is wholly immaterial in this case whether or not that charge was true. Had the charge been made on information and belief, counsel’s argument might be well grounded, but it was not so made. Proof of the falsity of this positive assertion was competent as having some bearing upon the question of malice.
3. In discussing assignments of error 5 and 6, counsel for defendant urges in his brief that, by reducing the amount of damages which the jury awarded to plaintiff, the court of necessity found that the verdict of the jury was influenced by passion or prejudice, and therefore defendant was entitled as a matter of right to have his motion for a new trial sustained on that ground. A similar contention was made in the case of Bull v. Butte Electric Ry. Co., 69 Mont. 529, 223 Pac. 514, and, in disposing of it, this court said: “It does not follow, however, from the order now under review that the trial court found that the jurors were actuated by passion and prejudice. "While it is true that the mere fact that a verdict is excessive is not made a statutory ground for a new trial (Kelley v. Daily Co., 56 Mont. 63, 181 Pac. 326), the contention that the damages awarded are excessive may be raised under the specification that the evidence is insufficient to sustain the verdict (1 Spelling on New Trial and Appellate Practice, sec. 247; 1 Hayne on New Trial and Appeal, secs. 94 and 95).”
It must be conceded that the evidence was sufficient to justify a finding by the jury that defendant, in instituting the criminal proceeding against the plaintiff, did so without probable cause, and that he was actuated by malice. The verdict may therefore fairly be said to be within the purview of the evidence and not founded upon extrinsic considerations. This condition of the record involves the further concession that plaintiff was entitled to recover from the defendant such an amount as would compensate her for any injury which she had sustained. And to us the evidence indicates that it was sufficient to entitle the plaintiff to a verdict for substantial, not merely nominal, damages. We think it would be impossible to say from the record before us that it is apparent that passion or prejudice entered into and influenced the decision of the jury in its determination that the plaintiff was entitled to recover such substantial damages from the defendant.
And it further seems clear that, if passion or prejudice influenced the jury’s verdict at all, it went no further than to swell its amount. When this condition appears, the excess may be ordered remitted as a condition to denying a motion for a new trial. (Griffin v. Chicago, M. & St. Paul Ry., Co., 67 Mont. 386, 216 Pac. 765; Bull v. Butte Electric Ry. Co., supra.)
Under these specifications of error counsel for defendant further contends that the trial court has authority to scale a verdict only when it is apparent that there is some standard by which the damages may be computed, and that the jury used the wrong standard of computation, or did not calculate correctly, and, because that condition does not exist in this case, the court exceeded its authority in modifying the judgment by reducing it to $6,000 as a condition of overruling defendant’s motion for a new trial; in other words, that the rule permitting the scaling of verdicts does not apply where the action is for unliquidated damages.
In support of this contention, citation is made to expressions in some Montana cases which seem to justify it. Notwithstanding such expressions, an examination of our eases discloses that this court has in a great number of instances approved the scaling of verdicts in actions for unliquidated damages, wherein the amount recoverable rested in the sound discretion of the jury, and amongst them we cite Kennon v. Gilmer, 9 Mont. 108, 22 Pac. 448; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 Pac. 40; Conway v. Monidah Trust, 51 Mont. 113, 149 Pac. 711; Cornner v. Hamilton, 62 Mont. 239, 204 Pac. 489; Anderson v. Wirkman, 67 Mont. 176, 215 Pac. 224; Griffin v. Chicago, M. & St. Paul Ry. Co., supra.
This identical contention was presented to and fully considered try this court in Bull v. Butte Electric Ry. Co., supra, and in disposing of it, the court, speaking through Mr. Justice Holloway, said: “In Chenoweth v. Great Northern Ry. Co., 50 Mont. 481, 148 Pac. 330, a question was suggested as to the propriety of applying the rule in any case except where the amount of the excess can be accounted for by resort to mathematical calculations based upon some error in the standard adopted by the jury — a rule which prevails in a few jurisdictions — but the question before us then was not res integra in this state. The overwhelming weight of authority sustains the view that the rule is applicable to actions for unliquidated damages— that is to say, to actions wherein the amount of damages recoverable rests in the sound judgment and discretion of the jury. (20 R. C. L. 317, sec. 100; 39 L. R. A. (n. s.) 1067.)
In conclusion, counsel for defendant contends that even the judgment as reduced by the lower court is excessive and ought not to be sustained for that reason.
In fixing the amount of damages to be awarded to the plaintiff, it was proper to take into consideration, amongst other things, the injury to plaintiff’s reputation, the humiliation and disgrace to which she was subjected, and her mental suffering caused by the acts of the defendant of which complaint was made. Of course there is no definite standard by which these items can be measured. Their ascertainment depends upon the particular circumstances of each case, the relative situation of the parties, the degree of malice shown, the general impression made at the trial from the whole evidence, the character and manner of the witnesses, and variety of other circumstances which cannot be shown in a printed record. The learned judge of the trial court had the superior advantage of observing the appearance of the parties and their witnesses during the progress of the trial. He was in position to determine between the apparent and the real, and to exercise an independent judgment upon what was a fair compensation to be awarded to the plaintiff. His action ought not to be disturbed in the absence of a clear showing of an abuse • of discretion. No such showing is made here.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Matthews and Galen concur.
|
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JUSTICE WEBER
delivered the Opinion of the Court.
This is an appeal from an order and opinion of the Third Judicial District Court, Powell County, dismissing Daniel L. Remington’s application for mandamus, habeas corpus, and declaratory relief. We affirm.
We consider the following issues on appeal:
1. Did the District Court abuse its discretion in dismissing Remington’s petition for declaratory judgment?
2. Should this Court issue a writ of habeas corpus based on an inmate’s liberty interest in prison “good time” credits for correspondence courses?
Daniel L. Remington (Remington) is currently a parolee from the Montana State Prison. During his confinement, Remington has pursued a college degree by engaging in college level extension courses and numerous correspondence courses from accredited colleges across the country. For his College of Great Falls extension courses, Remington has received “good time” credit pursuant to Section 53-30-105, MCA, and prison policies No. 505 and PD 84-214. This “good time” acts to shorten his term of incarceration or parole. However, Remington has received no “good time” credit for the correspondence courses he has successfully completed at accredited universities such as University of Nevada at Reno, University of Utah, Eastern Washington University, and the University of Ohio.
Over a period of years, Remington sought approval from various prison authorities for “good time” credit to which he claims entitlement based on his correspondence courses. This credit has been denied.
Remington filed a petition for mandamus, habeas corpus, and declaratory relief with the Third Judicial District Court, Powell County. The court dismissed Remington’s petition in an opinion and order dated March 31, 1992. Remington appealed. By order dated November 24, 1992, this Court granted Remington’s motion to consolidate his appeal of denial of his petition for declaratory judgment and his application to this Court for habeas corpus.
I.
Did the District Court abuse its discretion in dismissing Remington’s petition for declaratory judgment?
The District Court dismissed Remington’s petition for writ of habeas corpus, mandamus and declaratory judgment. Denial of a writ of habeas corpus is not appealable to this Court. Coble v. Magone (1987), 229 Mont. 45, 744 P.2d 1244.
We will not address Remington’s petition for mandamus because the District Court did not review the petition as a request for mandamus and Remington has not argued it to this Court.
Dismissal of Remington’s petition for declaratory judgment is reviewable by this Court. When a District Court determines that declaratory relief is not necessary or proper, we will not disturb the court’s ruling absent an abuse of discretion. Empire Fire and Marine Ins. Co. v. Goodman (1966), 147 Mont. 396, 412 P.2d 569.
A declaratory judgment is primarily intended to determine the meaning of a law or a contract and to adjudicate the rights of the parties therein, but not to determine controverted issues of fact such as facts which give rise to a claim of denial of procedural due process. Raynes v. City of Great Falls (1985), 215 Mont. 114, 696 P.2d 423. The resolution of the questions in this case involves factual determinations prior to any consideration of due process or equal protection. We conclude, therefore, that declaratory judgment was not the proper procedure for resolution of this case.
We hold that the District Court did not abuse its discretion in dismissing Remington’s petition for declaratory judgment.
II.
Should this Court issue a writ of habeas corpus based on an inmate’s liberty interest in prison “good time” credits for correspondence courses?
Remington filed a second habeas corpus application to this Court in the event that this Court determined that it could not review the District Court’s denial of his petition. We have considered Remington’s arguments and find that he has failed to present facts that warrant habeas corpus.
Remington argues that he has a liberty interest in receiving “good time” credit and that because the Department of Corrections and Human Services (Department) has denied him “good time” credit for his correspondence courses, he is being restrained of liberty and denied his due process rights and equal protection of the law. The State argues that Remington does not have a liberty interest in “good time” credit and, therefore, has not been denied due process or equal protection of the laws.
The District Court determined that the Montana statute did not create a liberty interest in good time credit. The court went on to consider Remington’s equal protection argument, finding that he had not been denied equal protection as no inmate has ever been given “good time” credit for correspondence courses. Because of the consistent administering of the prison policies, the court determined that the policy was not being arbitrarily applied.
If Remington has a liberty interest in “good time” credits, as he argues, due process concerns are raised “to insure that the state-created right is not arbitrarily abrogated.” Wolff v. McDonnell (1974), 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951. A liberty interest is created when the legislature expressly mandates to an agency the performance of some activity to be carried out within specific parameters which include definitions, criteria, and mandated “shalls.” Connecticut Board of Pardons v. Dumschat (1981), 452 U.S. 458, 466, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158, 166.
The enabling statute for the Department of Institutions is Section 53-30-105, MCA. The statute enables the Department to make rules concerning the dispensation of “good time” credits:
(1) The department of corrections and human services shall adopt rules providing for the granting of good time allowance for inmates employed in any prison work or activity. The good time allowance shall operate as a credit on his sentence as imposed by the court, conditioned upon the inmate’s good behavior and compliance with the rules made by the department or the warden. The rules adopted by the department may not grant good time allowance to exceed:
(d) 13 days per month for those inmates enrolled in school who successfully complete the course of study or who while so enrolled are released from prison by discharge or parole;
Section 53-30-105, MCA. This statute contains no definitions, no criteria, and no mandated “shalls” for the rules it directs the Department to make.
The Department has virtually unfettered discretion in establishing the rules which will govern the dispensation of “good time” credits to prisoners. The only applicable limitations placed upon the Department by the legislature are a thirteen day cap on the amount of credits given for educational pursuits and that this credit be conditioned on the inmate’s good behavior and compliance with the Department or the warden’s rules.
Considering the enabling legislation, the Department instituted a basic policy on July 1,1983, called Policy #505. This policy established parameters for assessing “good time” credits for all activities deemed eligible for good time by the Department. According to Policy #505 and in line with the enabling statute’s cap on “good time” credits for educational pursuits, the Department allotted thirteen days per month for good time earned by pursuing educational activities.
Subsequently, in September of 1984, the Department published the revised PD 84-214 which “outlines and defines the function and operation of the Education Department at the prison.” This particular directive deals with good time earned through educational pursuits. It is a more specific policy. PD 84-214 states unequivocally that “term-based extension services” provided by approved colleges or universities will receive good time credit. Also stated unequivocally, is the denial of “good time” credit for correspondence courses.
PD 84-214 deals with two different kinds of prison educational programs: extension programs from approved colleges or universities and correspondence courses. One type of course is approved for “good time” credits and the other is not.
Nothing in the prison educational policies conflicts with the enabling statute. Therefore, we conclude the Department has set these rules in line with the broad directive provided to it by the enabling statute. Because a liberty interest is created only when the enabling statute (Section 53-30-105, MCA) specifically constrains or limits the discretion of the decision maker (the Department) and such constraint is absent here, we hold that Remington and the other inmates of the Montana State Prison do not have a liberty interest in “good time” credits. Such liberty interest being absent, Remington has not been denied due process of law because he has been denied credit for his successfully completed correspondence courses.
Remington also argues that the enabling statute denies him equal protection under the law because the prison regulation infringes on his constitutional rights. He argues that the regulation forbidding “good time” credit to inmates taking correspondence courses is valid only if it is reasonably related to a legitimate penological interest. Turner v. Safley (1987), 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64. Remington contends that the Department has not shown a reasonable relationship to a penological interest.
The record reveals testimony from respondents that correspondence courses put an unwieldy time pressure on the prison because prison personnel need to proctor exams. Extension classes are controlled and staffed by the home college. The record also suggests that extension courses are structured to guide their students.
Further, correspondence courses are missing easy access to instructors and counselors when problems arise. Remington himself testified at the evidentiary hearing that when he needed to call a contact person in Ohio or another state that he had to forgo his allotted weekly telephone call. In addition to on-site classes, extension programs provide on-site personnel who are available at regular times to help inmates even if the inmate is involved in a self-study course more individually tailored to his needs. The basic difference between these two types of courses is that the universities control and staff the extension programs while prison personnel provide the needed time to help with correspondence courses. Such time required of prison officials is not always easily found, particularly if many prisoners are enrolled in these courses from various universities.
The Department has set as its goal for the Education Program “to educate inmates to render them more knowledgeable, better socialized, and more employable upon release.” The Department has made a careful assessment that extension programs are more capable of carrying out this goal. If the Department has applied the prohibition of “good time” credits to all inmates, as the record shows, then Remington is not being denied equal protection. We conclude that the Department has a legitimate interest in promoting inmate education while also preserving the efficient administration of the prison. We conclude that the record establishes that the denial of “good time” credit for correspondence courses has not been arbitrarily made but is reasonably related to a legitimate penological interest.
We hold that a writ of habeas corpus is not appropriate because Remington is not being unconstitutionally restrained of freedom due to the prison’s denial of “good time” credits for his successfully completed correspondence courses.
Remington’s application for writ of habeas corpus to this Court is denied.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and GRAY concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
This is an appeal from a judgment entered by the Eighteenth Judicial District Court, Gallatin County, in October of 1990. The judgment settled obligations between the parties and determined entitlement to monies from a prior judgment award entered in Crystal Springs v. First State Bank of Froid (1987), 225 Mont. 122, 732 P.2d 819. We affirm and remand.
Appellants raise the following issues on appeal:
1. Did the District Court err in concluding that the February 13, 1982, agreement was not a loan agreement?
2. Did the District Court err in determining that Ron Preston must repay loans made by Ken Nyquist from Preston’s individual share of the judgment award?
3. Did the District Court err in declining to award attorney’s fees to appellants?
4. Did the District Court err in failing to determine that the repayment of advanced litigation expenses should come first from the corporation’s share of the judgment award?
5. Does Section 28-1-1302, MCA, result in a waiver by Ken and Kathleen Nyquist of interest accrued since the date of appellants’ post-judgment motion for partial release of trust funds?
6. Did the District Court err in imposing on the Bradfords an obligation to repay advanced litigation expenses pursuant to the February 13, 1982, agreement?
All parties to this appeal were successful plaintiffs in previous litigation in Broadwater County. In the original action, the Crystal Springs Trout Company and its shareholders brought a damage action against First State Bank of Froid (First Bank) and its agent. Judgment for the plaintiffs in that action was entered in June of 1985. After appeal and remand for further damage calculations, the court entered an Order Clarifying Amounts on August 20,1987. That order directed First Bank to tender to all plaintiffs one check in the amount of $413,170, reflecting the total amount due all of the plaintiffs, offset by money Ken and Kathleen Nyquist owed First Bank. The 1987 order was not appealed. The judgment award was paid by First Bank to plaintiffs’ attorney, Ron Waterman, who held the money in trust for plaintiffs. When the shareholders could not agree as to disbursal of the money, Waterman put the money in an interest-bearing account. Interest has raised the balance in the account to approximately $425,000 at the time of trial. Waterman has refused to release any of the monies without a court order due to dissension among the parties regarding amounts due each of them from the judgment award.
The dissension arises in large part from differing interpretations of a February 13, 1982, agreement (1982 agreement) between Ken and Kathleen Nyquist, the Crystal Springs Trout Company (CSTC), and CSTC’s other shareholders except Earl and Alice Bradford. Under the 1982 agreement, Ken and Kathleen agreed to continue to advance litigation expenses for the First Bank lawsuit because the other parties had no source of funds to pursue the action. These expenses, plus 20% interest on amounts advanced “per annum from the date such advance was made to the date of actual recoupment... ” are to be recovered by Ken and Kathleen from any judgment award arising from the First Bank litigation. Ken and Kathleen Nyquist filed the current action to enforce what they view as unfulfilled obligations under the February 13, 1982, agreement. They also seek repayment of promissory notes executed by Ron Preston and Tom and Virginia Nyquist. In response, Tom and Virginia Nyquist, Ron Preston and CSTC raised Ken and Kathleen’s failure to pay a deficit sum to the judgment fund and usury under the 1982 agreement and sought, inter alia, a penalty against Ken and Kathleen for usurious interest and attorney’s fees. As discussed below, the Bradfords did not join in the response by the other defendants.
Following trial of this action, the District Court determined the specific obligations between and among the various parties and the appropriate sums owed each party from the judgment award in the original action. In its October, 1990, Findings of Fact, Conclusions of Law and Judgment, the court determined that, pursuant to the 1982 agreement, Ken and Kathleen were entitled to the litigation monies they had advanced plus interest, but were not entitled to funds they alleged to be due them as a result of tax consequences in funding the litigation; the court further determined that nothing in the agree ment entitled Ken and Kathleen to reimbursement for the accounting fees they claimed to have incurred in such funding. The court found that Ron Preston and Tom Nyquist defaulted on their promissory notes. Finally, the District Court determined that the 1982 agreement was not a loan and, therefore, no usury issue existed under that agreement.
Ron Preston, Tom and Virginia Nyquist and CSTC, appellants herein, moved the court to amend its Findings of Fact, Conclusions of Law and Judgment. The motion was deemed denied by operation of law when the District Court did not rule within 45 days. Appellants also filed a motion for partial release of trust funds. Before a ruling on the motion or expiration of the 45-day limit, notice of appeal was filed.
We will not set aside a district court’s findings of fact unless the findings are clearly erroneous. Klose v. Klose (1990), 243 Mont. 211, 793 P.2d 1311. We review a court’s conclusions of law to determine whether they are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
I.
Did the District Court err in concluding that the February 13, 1982, agreement was not a loan agreement?
The District Court concluded that the 1982 agreement was not a loan agreement because it did not contain an unconditional obligation to repay; on that basis, it determined that no usury issue existed. Appellants contend that the 1982 agreement was a loan which they had an absolute duty to repay. As such, according to appellants, the 20% interest rate contained in the agreement is usurious pursuant to Sec. 31-1-107(1), MCA, in that the appropriate ceiling interest rate on the date of the agreement was 16%.
If an obligation is based on “a certain condition which may or may not happen or occur, the transaction is not a loan.” Rae v. Cameron (1941), 112 Mont. 159, 167, 114 P.2d 1060, 1064. The February 13, 1982, agreement provides:
Kenneth and Kathleen Nyquist shall be entitled to recoup and recover from any awards and proceeds arising out of such court action prior to the distribution thereof to any of the other parties in this Agreement all of such funds so advanced by them .... [Emphasis added.]
The plain wording of the agreement establishes that Ken and Kathleen Nyquist are entitled to recoupment only from any proceeds arising out of the First Bank litigation. Thus, a judgment award of damages in plaintiffs’ favor in the First Bank action was a condition precedent to any obligation of CSTC and the other shareholders to repay the advanced litigation expenses; in other words, it was a condition which “may or may not happen.” No certainty ever existed that the plaintiffs in that litigation would prevail and receive a damage award.
We conclude that the 1982 agreement contains a conditional, rather than an unconditional, obligation to repay. We hold that the District Court did not err in concluding that the February 13, 1982, agreement was not a loan agreement.
II.
Did the District Court err in determining that Ron Preston must repay loans made by Ken Nyquist from Preston’s individual share of the judgment award?
Via Exhibit Ato its October, 1990, Findings and Conclusions, the District Comb determined that seven loans made by Ken Nyquist to Ron Preston were to be paid from Preston’s individual share, rather than from CSTC’s share, of the judgment award. Appellants argue that the loans were made for expenses incurred by Preston while he was involved in corporate business pertaining to the First Bank litigation. On this basis, appellants argue that the corporation, rather than Ron Preston individually, should be obligated to repay Ken Nyquist. Respondents claim that the loans to Preston were made for Preston’s personal business.
Whatever the reasons for the loans, the record clearly establishes the source of repayment of Preston’s loans. Preston specifically assigned his share of any proceeds from the First Bank litigation to Ken Nyquist to the extent of the loan amounts owing:
Assignor hereby transfers, assigns and sets over to Assignee, to the extent of all amounts owing to Assignor under the Promissory Note described below, all of Assignor’s right, title, and interest, legal and equitable, in and to all proceeds and other credits in favor of Assignor arising and of that cause of action entitled Crystal Springs Trout Company, a Montana corporation, Thomas Nyquist and Virginia Nyquist, husband and wife, Kenneth Nyquist and Kathleen Nyquist, husband and wife, Ronald E. Preston, Robert Moore and Peggy Moore, husband and wife; and Earl Bradford and Alice Bradford, husband and wife. vs. First State Bank of Froid, a banking corporation, and JerryB. Wallander.... [Emphasis added.]
A separate assignment relating to each of the seven loans, and containing the referenced language, was executed by Preston. The assignments establish that Preston’s share of the judgment proceeds is to be the source of repayment.
The record contains substantial evidence to support the District Court’s determination that Preston’s loans were to be repaid from Preston’s individual share of the judgment award. The District Court did not err.
III.
Did the District Court err in declining to award attorney’s fees to appellants?
The District Court determined that neither party could be considered the prevailing party and, thus, neither was entitled to attorney’s fees. Appellants contend that they are the prevailing party because Ken and Kathleen’s failure to restore a $50,767.11 deficit sum to the judgment fund is a breach of the 1982 agreement. Further, appellants argue that they prevailed on the issue of Ken and Kathleen’s request for monies for tax liabilities and accounting fees. Respondents point out that the District Court determined that they must restore the deficit sum to the judgment fund, but did not conclude that the failure to do so constituted a breach of the agreement. Respondents assert that since the obligation to restore the deficit amount resulted from the District Court’s 1987 Order Clarifying Amounts, it was not a contractual obligation which could form the basis for a breach and attorney’s fees under the agreement.
Ken and Kathleen’s complaint was based primarily on the 1982 agreement. That agreement contains an express provision for attorney’s fees to be awarded against the “defaulting party.” Appellants contend that the reciprocity provisions of Sec. 28-3-704, MCA, entitle them to attorney’s fees because they are the non-defaulting, “prevailing party” in this litigation.
The District Court determined, and the record establishes, that Ken and Kathleen’s obligation to restore approximately $50,000 to the judgment fund resulted from the 1987 Order Clarifying Amounts Due Under June 18,1985, Judgment. It did not arise under the 1982 agreement and, therefore, Ken and Kathleen did not breach the 1982 agreement. Absent such breach or default by Ken and Kathleen under the agreement, neither the agreement’s attorney’s fees provision nor the reciprocity provision of Sec. 28-3-704, MCA, provides a basis for an award of attorney’s fees to appellants.
Further, the District Court determined that neither party was the prevailing party for purposes of awarding attorney’s fees. Appellants prevailed on Ken and Kathleen’s claims of reimbursement for tax and accounting fees pursuant to the agreement. On the other hand, they defaulted on their promissory notes and did not reimburse Ken and Kathleen for advanced litigation expenses. Nor are Ken and Kathleen the prevailing party, according to the court, because their failure to restore the deficit sum to the judgment fund and tax and accounting fee claims contributed to causing the lawsuit.
There are cases where, at the close of litigation, there is no actual “prevailing party” entitled to attorney’s fees because both parties gain a victory but also suffer a loss. Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1201. Here, even though all parties prevailed in part and are entitled to part of the judgment award, none prevailed on all issues or recovered the total of what was individually sought. We hold, therefore, that the District Court did not err in concluding that appellants were not entitled to attorney’s fees.
IV.
Did the District Court err in failing to determine that the repayment of advanced litigation expenses should come first from the corporation’s share of the judgment award?
The District Court attributed part of the repayment of advanced litigation expenses to the shareholders’ individual shares of the judgment award and part to the corporate entity’s share. Appellants argue that minutes of a corporate or shareholder meeting, in which the corporation decided to continue litigation against First Bank, indicate a clear intent that repayment of advanced litigation expenses would be made from the corporate entity’s share of the judgment award first. They argue that individual shareholders should not be compelled to repay the litigation expenses from their own individual portions of the award unless the corporation’s share of the judgment award is insufficient to cover the repayment.
The minutes are not nearly as clear as appellants suggest. In addition, to the extent the minutes could be ihterpreted in accordance with appellants’ assertion, they conflict with the 1982 agreement.
The agreement itself is clear. The individual shareholders and the corporate entity were parties to the agreement. The agreement recites that the purpose of the First Bank litigation is to recover for wrongful actions by First Bank and its agent which were “causing damage to all the parties to this Agreement.” The parties agreed that “it is essential to their individual and mutual benefit to pursue such litigation....” Finally, the agreement provides that Ken and Kathleen Nyquist will have a claim to the proceeds before any other “parties” to the agreement.
This wording is clear and unambiguous. When wording of a contract is clear, the court merely must enforce it. Morning Star Enterprises, Inc. v. R.H. Grover, Inc. (1991), 247 Mont. 105, 805 P.2d 553. Meeting minutes could not and did not alter the agreement; indeed, to the extent the minutes are at all probative, they reflect ratification of the agreement. The District Court correctly attributed responsibility for the repayment of the advanced litigation expenses to all parties to the agreement, both individual shareholders and the corporate entity. We hold that the District Court did not err in failing to determine that repayment of advanced litigation expenses should come first from the corporation’s share of the judgment award.
V.
Does Section 28-1-1302, MCA, result in a waiver of interest accrued since the date of appellants’ post-judgment motion for partial release of trust funds?
In early December, 1990, while their motion to amend the judgment was pending before the District Court, appellants submitted a proposed stipulation to Ken and Kathleen for partial release of trust funds; their intent was to release funds in payment of some, but not all, of their obligations to Ken and Kathleen under the October, 1990, judgment, thereby preventing accrual of additional interest on those amounts. The stipulation was not executed.
Appellants subsequently moved the court for partial release of the trust funds. The motion was neither ruled upon by the District Court nor deemed denied by operation of law prior to appellants’ filing of a notice of appeal on January 21, 1991.
Appellants argue that, pursuant to Sec. 28-1-1302, MCA, Ken and Kathleen have waived their right to continued accrual of interest by their refusal to accept partial payment of trust funds after trial. Their post-trial motion for partial release of trust funds did not cite or rely on Sec. 28-1-1302, MCA. In any event, the District Court did not have an opportunity to address appellants’ motion on this issue and we decline to do so.
VI.
Did the District Court err in imposing on the Bradfords an obliga tion to repay advanced litigation expenses pursuant to the February 13, 1982, agreement?
In its 1990 Findings, Conclusions, and Judgment, the court determined that Earl and Alice Bradford were responsible for repaying their determined share of the litigation expenses advanced by Ken and Kathleen Nyquist. Appellants assert that the Bradfords are not responsible for any part of the litigation expense repayment to the Nyquists because they did not sign the 1982 agreement. Respondents argue that the Bradfords are not before this Court on appeal.
On November 27,1987, Earl and Alice Bradford moved the District Court to dismiss the action against them on the basis that the complaint failed to state a claim. The court denied their motion on December 23,1987, and gave them 20 days to plead further. No formal default was entered and the court proceeded to determine their obligations in its October, 1990, Findings, Conclusions and Judgment.
Neither of the Bradfords joined in the appeal to this Court. Appellants’ attorney did not represent the Bradfords in the District Court and designates himself as counsel on appeal for CSTC and its shareholders Thomas Nyquist, Virginia Nyquist and Ronald Preston; no attempt has been made to include the Bradfords as appellants. Therefore, we will not consider the propriety of the District Court’s determinations regarding the Bradfords.
Finally, we note that the record suggests that the trustee of the interest-bearing account will not release any monies without a court order. Therefore, we remand this case to the District Court with instructions to issue an order for release of trust account funds in accordance with the court’s October, 1990, Findings, Conclusions and Judgment, and for any further proceedings which may be appropriate and which are not inconsistent with this opinion.
Affirmed and remanded with instructions.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and HUNT concur.
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] |
JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from the Eighteenth Judicial District, Gallatin County, from an order denying attorney’s fees to the petitioner. We affirm.
There is a sole issue on appeal:
(1) Whether the District Court erred in denying appellant’s requests for attorne/s fees.
This action is predicated upon petitioner/appellant’s (petitioner) motion to modify child support and enforce the dissolution decree. The decree was issued on June 20,1984 and incorporated within the decree was Mr. and Mrs. Hebert’s Marriage and Property Settlement Agreement. In the agreement, respondent was to pay $200 for child support and one-half of their minor son’s medical expenses which were not covered by petitioner’s health insurance. Respondent was also supposed to provide petitioner with a washer and dryer in good condition. A later amendment to the decree provided that the cost of transporting the child for summer visitation was to be shared equally by the parties.
Petitioner filed a petition to modify child support, collect arrearages for child support and medical expenses, and for delivery of a washer and dryer. In respondent’s answer, he stated that there was not a sufficient increase in his financial resources to warrant a modification in child support. He also stated that the petitioner did not provide him with adequate information to allow him to determine his share of the medical expenses. He further contended that he did provide a washer and dryer to petitioner. Finally, he alleged that the petitioner owed him one-half the cost of visitation travel expenses.
Ahearing was held on the petition. At the conclusion of the hearing the judge requested proposed findings of fact, conclusions of law and an order from both parties.
Pursuant thereto petitioner proposed that the respondent pay $646 per month in child support, $553.14 in overdue medical expenses, child support arrearages and that he deliver a washer and dryer in good condition. She also proposed that the respondent pay attorney’s fees for each party.
Respondent proposed in his order that he should indeed pay an increase in child support and he calculated the payment due to be $350 per month. He stated that the issues of medical expenses and child support arrearages, as well as visitation travel expenses had been resolved. He also contended that the washer and dryer had been previously delivered. Finally, lie contended that neither party was the “prevailing part/’ so each should pay his/her own attorney’s fees.
In the court’s Findings of Fact, Conclusions of Law and, Order issued on March 5, 1992, it concluded that petitioner should receive child support in the amount of $416.91 per month and an extra $75 per month until the arrearages were paid. Respondent was also ordered to pay $553.13 in medical expenses previously due. The court ordered each party to pay their own attorney’s fees.
The petitioner filed a motion to amend the judgment concerning attorney’s fees on March 16,1992. Petitioner’s motion was based on a provision in the parties’ marital and property settlement agreement which had been incorporated into the dissolution decree. This provision stated:
In the event that either party shall institute legal proceedings to enforce, modify or interpret any provision of this agreement, the Court shall award, in addition to any other appropriate relief, a reasonable attorney’s fee to the prevailing party.
The motion was heard and an order denying petitioner’s attorney’s fees was issued. The court denied the motion because of its conclusion that there was no prevailing party in the action.
The petitioner argued that she was the prevailing party because her request for increased child support and for payment of medical expense arrearages had been granted. The District Court, however, concluded that the respondent prevailed on the child support increase issue because he had agreed to an increase of $350 and the petitioner had calculated an increase to $646 per month. The judge noted that the final child support order to pay $416.91 was only $66.91 above respondent’s calculation of $350 but $229.09 below the petitioner’s calculation.
The comb also concluded that petitioner had prevailed on the medical expenses arrearages and the visitation travel expenses issues. Respondent prevailed on the child support issue and also the washer and dryer issue. Respondent had presented proof that he had previously delivered a washer and dryer to the petitioner but she sold them. The court also concluded that because each party had “won” on two issues, there was no “prevailing party” and each party should pay their own attorney’s fees and costs.
Post-trial motions will be reviewed for abuse of discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.
Several previous cases have served to clarify the term “prevailing party.” E.C.A. Environ. Management v. Toenyes (1984), 208 Mont. 336, 345, 679 P.2d 213, 217-218, states that “[n]o one factor should be considered in determining the prevailing party for the purpose of attorney fees. The party that is awarded a money judgment in a lawsuit is not necessarily the successful or prevailing party.” In the present case, even though petitioner received a “money judgment”, she is not necessarily the prevailing party.
In Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1200, we stated, “[Tjhere are cases where, at the close of all litigation, there is no actual ‘prevailing party.’ [Tjhere is no prevailing party where both parties gain a victory but also suffer a loss.” In the present case, the District Court did not abuse its discretion in concluding that there was no “prevailing part/’ and that each party shall pay his/her own costs.
AFFIRMED.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and WEBER concur.
|
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] |
JUSTICE McDONOUGH
delivered the Opinion of the Court.
Michael Brockie, personal representative of the estate of Aric C. Brockie, appeals from an order of the First Judicial District, Lewis and Clark County, denying his motion for a new trial. We affirm in part and reverse in part.
The following issues are presented on appeal:
1. Whether the District Court erred in denying Brockie’s motion for a new trial;
2. Whether the District Court erred in refusing to instruct the jury that Omo Construction, Inc.’s violation of the Manual on Uniform Traffic Control Devices constituted negligence as a matter of law;
3. Whether the District Court erred in refusing to instruct the jury that mere compliance with traffic regulations does not necessarily constitute due care; and
4. Whether the District Court erred in excluding certain impeachment evidence and by admitting certain prejudicial evidence.
On November 26, 1989, Aric Brockie was killed in a one car accident on 1-94 near the Huntley Interchange east of Billings. Aric Brockie was the passenger in a vehicle driven by a friend. The two were returning to Billings after a Thanksgiving holiday in Miles City. The vehicle skidded as it approached an icy bridge. The car slid off the highway into the median where it struck a flasher board owned by Omo Construction, Inc. (Omo).
Omo was performing traffic control and guardrail work on 1-94 as part of a construction contract with the State Highway Department. On Wednesday, November 22, 1989, Omo had installed a new guardrail and median hazard closures on a bridge structure. In order to erect the guardrail on the median sides of the bridge, the crew was required to close the passing lane of the interstate in each direction of travel. Omo erected a number of advance warning signs for each lane plus two portable “arrow boards” or “flasher boards” which directed traffic with flashing arrows.
At the end of the day, on Wednesday, November 22, 1989, the foreman on the project directed worker Michael Stookey to remove the equipment from the highway and store it for the Thanksgiving holiday. Stookey removed the advance warning signs to a location east of the bridge next to the highway right-of-way fence. He pulled other signs to the parking lot of the Longhorn Cafe. Upon instructions from the foreman he placed the flasher boards in the middle of the median at either end of the bridge.
Highway Patrol Officer Virginia Kinsey drove past the area several times during her shift on November 26, 1989. She testified that she had the authority to have construction equipment removed if it was hazardous to the public. She saw the flasher board and did not believe it was in a hazardous area. Officer Kinsey responded to the Brockie accident and along with two other officers, made measurements at the scene. She testified that the flasher board was 27 feet 2 inches from the yellow median strip of the westbound lane at the time of impact. Traffic control provisions of the contract required compliance with highway safety standards. A “30 foot clear” zone requirement prohibits storage of a traffic control device within 30 feet of the traveled highway.
Omo’s expert, Dr. Thomas Blotter, an accident reconstruction expert, opined that the flasher board was parked between 34 and 48 feet from the westbound lane at the time of impact. Dr. Blotter testified at trial, basing his analysis on motion theory and kinematics. Since Brockie did not put an expert on the stand, Dr. Blotter’s testimony went uncontroverted.
Francis H. Rice, the jury foreman, after the close of the evidence, went to the library of Carroll College to do some research about Dr. Blotter’s testimony. Rice had taken some physics courses in college, and by affidavit, stated he wished to refresh his memory about physics principles concerning kinematic theory and motion theory. He stated his research clarified the testimony of Dr. Blotter. Rice stated that he mentioned to only one other juror that over the weekend he had done some research into kinematic theory and motion theory. However, affidavits of two separate jurors stated Rice mentioned his research to them in the jury room. By affidavit Rice stated he did not mention his research during deliberations.
Brockie’s counsel, upon hearing that Rice had done some independent research, filed a motion for a new trial with the District Court. The District Court denied Brockie’s motion. This appeal followed. Our standard of review is whether or not the District Court abused its discretion in denying Brockie’s motion for a new trial and ruling on evidentiary matters. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
I
Whether the District Court erred in denying Brockie’s motion for a new trial.
The District Court found that the actions of Mr. Rice amounted to jury misconduct. However, relying on Arthur v. Washington Iron Works (1978), 22 Wash.App. 61, 587 P.2d 626, the District Court found that Rice’s conduct was not prejudicial to Brockie. In Arthur, the jury foreman went to the public library and looked for handbooks on rigging and informed the other jurors they were available. He also examined the yellow pages to see if the experts who testified were listed. Arthur, 587 P.2d at 628. The court of appeals upheld the trial court’s determination that the library incident went to the credibility of the witness and that the telephone directory incident gave extra status to the expert listed. Arthur, 587 P.2d at 631.
Generally, courts in both civil and criminal cases have held that to warrant a new trial, the misconduct must be such that actual or potential injury results to the losing party. Section 25-11-102, MCA, governs grounds for a new trial. It provides in part:
The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party;
(1) irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
(2) misconduct of jury. Whenever any one or more of the jurors have been induced to assent to any general or special verdict or to a finding on any question submitted to them by the court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.
See also Rule 606, M.R. Evid.
We agree with the District Court that the actions of juror Rice constituted jury misconduct, as shown by his affidavit, and the affidavit of two other jurors. The question before us remains whether actual or potential injury to Brockie resulted from Rice’s conduct, and denied Brockie a fair trial. We have said in Putro v. Baker & Mannix Electric, Inc. (1966), 147 Mont. 139, 410 P.2d 717, that the “guiding principle in our legal system is fairness” and that both sides of the lawsuit are entitled to a fair trial. Putro at 147, 410 P.2d at 722. We went on to state that there is no practical method to determine whether the outcome would be different had the misconduct not occurred. We said: “The trial court should have declared a mistrial in justice to itself as well as to parties, so that a fair trial may result and the verdict when rendered may be entitled to the respect of both parties and the confidence of the court.” Putro at 148, 410 P.2d at 722.
In Putro a newspaper article disclosed that the defendant plead guilty to manslaughter, in a related criminal case, as a result of the accident in question. One of the jurors clipped the article and brought it into the jury room. The jurors stated that the article did not influence their verdict. Further, two of the jurors stated that they dropped the subject because they did not think they should read the article. We held that the possibility of influence existed, and probable prejudice resulted. Putro at 149, 410 P.2d at 723.
In Ahmann v. American Fed. Sav. & Loan Ass’n (1988), 235 Mont. 184, 766 P.2d 853, we held that any influence the alleged remark of the bailiff may have had on the jury did not affect the rights of the Ahmanns, and affirmed the District Court’s denial of Ahmann’s motion for a new trial. In Ahmann the jurors raised a question for the judge. The bailiff said the judge wouldn’t answer it until after the trial. However, he did not preclude the jurors from pursuing the matter. Ahmann at 191, 766 P.2d at 857.
In the present case, Omo presented the expert testimony of Dr. Blotter at the trial. Dr. Blotter testified to the theory of kinematics and motion theory in relation to the location of the flasher board at the time of impact. Dr. Blotter’s testimony was not contested or controverted by an expert, but was contested by the testimony of highway patrolman Kinsey. The location of the flasher board was at the very heart of the evidence. Francis Rice by affidavit, related that he went to the Carroll College library to research the theory of kinematics and motion theory and it clarified Dr. Blotter’s testimony. Affidavits of two other jurors confirmed he had mentioned this to them in the jury room. Probable prejudice resulted from Rice’s misconduct. Rice’s independent alleged clarification of Dr. Blotter’s testimony affected the rights of Brockie for any statements by Rice in the jury room relative to the placement and positions of the sign, could in effect make Rice a witness as to those jurors to whom he mentioned his research.
We conclude the District Court abused its discretion in denying Brockie’s motion for a new trial. Because we remand for a new trial, the balance of the issues are instructive only.
II
Whether the District Court erred in refusing to instruct the jury that Omo Construction, Inc.’s violation of the Manual on Uniform Traffic Control Devices constituted negligence as a matter of law.
The District Court refused Brockie’s jury instruction that a violation of the Manual on Uniform Traffic Control Devices (MUTCD) is negligence per se. In 1955 the legislature authorized the State Highway Department to adopt a manual on traffic control devices. The State Highway Commission adopted the MUTCD in 1971. In 1981 the legislature amended Section 61-8-202, MCA, to clarify which traffic control manual the highway department should adopt. The statute now states: “The department of transportation shall adopt a manual for a uniform system of traffic-control devices . . .” Section 61-8-202, MCA. If the legislature mandates a department to adopt rules but does not act further to adopt the rules, the rules do not become part of a statute by reference. Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 326, 684 P.2d 1041, 1045. Here, the MUTCD is not incorporated by reference. The MUTCD is not a statute but an administrative regulation. Violation of the MUTCD is not negligence per se but evidence of negligence. See Williams v. Maley (1967), 150 Mont. 261, 434 P.2d 398, Herbst v. Miller (1992), 252 Mont. 503, 830 P2d 1268.
We conclude that the District Court did not err in denying Brockie’s proposed instruction that a violation of the MUTCD was negligence per se.
Ill
Whether the District Court erred in refusing to instruct the jury that mere compliance with the traffic control regulations does not necessarily constitute due care.
The District Court refused Brockie’s instruction number 44. Instruction 44 Provided:
If you find that defendant OMO Construction, Inc. placed the arrow board more than thirty (30) feet from any traffic lane, you are instructed that defendant Omo Construction, Inc. was still required to comply with the provisions of its contract including the requirements of the MUTCD.
Brockie argues that the District Court’s refusal of this instruction encouraged the jury to conclude that mere compliance with the 30 foot clear zone constituted due care. The District Court also refused Brockie’s No. 17 which instructed the jury that Omo had a duty to remove obstacles which may constitute an unreasonable danger to motor vehicles and a violation of that duty is evidence of negligence.
However, the District Court provided the jury with proposed instructions 42 and 45 which provide respectively:
INSTRUCTION NO. 42
Ordinary care is not an absolute term, but a relative one. That is to say, in deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances, as shown by the evidence in the case.
INSTRUCTION NO. 45
On December 1, 1971, the Manual on Uniform Traffic Control Devices (MUTCD), was adopted by the Montana Highway Commission as a standard or norm to be used for traffic control devices. Pursuant to the contract signed by the defendant Omo Construction, Inc., it was required to comply with the requirements of the MUTCD. If you find that defendant Omo Construction, Inc. vio lated any of the provisions of the MUTCD, you may consider such violation as evidence of Omo’s negligence in this case.
We conclude that the District Court’s instructions properly instructed the jury. Therefore the District Court did not err in refusing Brockie’s proposed instructions.
IV
Whether the District Court erred in excluding certain impeachment evidence and by admitting certain prejudicial evidence.
The District Court granted Omo’s motion in limine preventing Mr. Charlton, a retired Project Manager for the Highway Department, from testifying on certain matters. On the Monday following the accident, Mr. Charlton visited the accident scene and made some measurements of highway equipment stored by Omo. When Mr. Charlton arrived at the site, the flasher board in question had already been removed. He made measurements of the other flasher board on the other side of the bridge and equipment some distance from the accident site. The District Court ruled that only evidence concerning the accident would be relevant.
On direct examination, Mr. Charlton testified that for safety’s sake, obstructions should be completely removed from the median. On cross examination, Mr. Charlton testified that the other flasher board parked in the median on the other side of the bridge was outside the clear zone and in conformity with the requirements of the State of Montana. The District Court did not allow redirect examination about equipment unrelated to the accident, placed some two miles from the accident site.
Brockie sought to ‘impeach’ Mr. Charlton through testimony that this other equipment, although in compliance with the clear zone, should be removed for safety reasons. Impeachment is typically used to test the veracity of a witness. On direct examination, Mr. Charlton testified that obstructions should be removed for the sake of safety. However, he admitted on cross that the other flasher board conformed with State requirements. Any testimony stating that equipment two miles from the accident site should have been removed for safety’s sake would not be proper impeachment. The placement of the equipment two miles from the accident site is irrelevant, thus testimony regarding this equipment would not be proper impeachment.
Brockie argues that Mr. Charlton’s testimony that the flasher board on the other side of the bridge was in the clear zone and in conformity with the requirements of the State of Montana was prejudicial based on Rule 403, M.R.Evid. Rule 403 excludes evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Because Mr. Charlton testified that any obstructions should be removed for the sake of safety, we do not find this testimony prejudicial.
We conclude that the District Court did not err in refusing Mr. Charlton’s testimony regarding the other equipment.
For the reasons set forth above, we reverse and remand to the District Court for proceeding not inconsistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.
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JUSTICE WEBER
delivered the Opinion of the Court.
Plaintiffs Yellowstone Basin Properties, Inc. and Central States Ranch Company appeal the judgment of the District Court of the Eighteenth Judicial District, Gallatin County, Montana. The judgment found in favor of defendants Ron Burgess and Survco Co., Inc. on plaintiffs’ claims of negligence, breach of contract and breach of warranty. We affirm.
The issues for review are restated as follows:
1. Did the District Court correctly determine that the defendants did not breach the standard of care they owed as Registered Land Surveyors?
2. Did the District Court correctly refuse to award damages based on plaintiffs’ reliance upon defendants’ admissions of erroneous surveys?
3. Did the District Court err in declining to determine the true locations of section corners despite the parties’ express request that it make the determinations?
4. Did the District Court fail to determine whether defendants breached their contracts with plaintiffs to provide surveys for tracts of at least twenty acres?
Plaintiffs Yellowstone Basin Properties, Inc. (YBP) and Central States Ranch Company (CSR) are Montana corporations engaged in the development and sale of real property in Montana. Defendant Ron Burgess (Burgess) owned Survco Co., Inc. (Survco) during the time plaintiffs’ claims arose. Burgess is a Registered Land Surveyor. Survco is a company providing professional surveying services to private landowners.
From 1980 to 1983, plaintiffs contracted with defendants to survey the following real property located in Park County, Montana and to divide it into parcels of at least twenty acres for resale:
For Plaintiff CSR: Section 34, T.2S., R.9E.; Section 3, T.3S, R.9E.
For Plaintiff YBP: Sections 31, 32 and 33, T.2S., R.9E.
Survco completed the survey, with Burgess and Mike Foley, a Survco employee and Registered Land Surveyor, ultimately filing numerous Certificates of Survey and Corner Recordations with the Park County Clerk and Recorder on behalf of CSR and YBP.
This dispute centers around the location of the comer common to Sections 3, 4, 33 and 34 (in R.9E between T.2S and T.3S). The corner common to Sections 3,4,9 and 10 (in R.9E, T.3S) and the west quarter corner to Section 3 (in R.9E, T.3S) are also involved. These corners were originally surveyed and monumented in the 1870s by United States government survey crews.
The evidence presented at trial established the following general surveying practices: If original corner monuments cannot be found, surveyors look for other evidence which can assist in determining the original corner location. They use original government field notes obtained from the Bureau of Land Management, county records, and any available field notes and materials from other surveyors who have surveyed the area after the original corner was monumented. If there is some evidence of the comer location, the corner is said to be “obliterated.” An obliterated corner is remonumented from the available evidence. If no such evidence is found, surveyors term the corner as “lost” and position it proportionately from other known corner sections.
Survco surveyors could not locate the original corners at issue here. Believing them obliterated, they remonumented them. Subsequently, a question arose as to whether Survco’s surveyors correctly located the obliterated comer to Sections 3, 4, 33, and 34. United States government surveyors from the Forest Service and later from the Bureau of Land Management (BLM) began to survey these same corners, and subsequently told Burgess in 1986 that they had found the original monuments, casting doubt on the accuracy of Survco’s location.
BLM surveyors testified that they had resurveyed Section 4 but were unable to officially remonument the corners because Section 4 was sold to a private party in 1986. Although the BLM had remonumented the corner to Sections 3, 4, 33 and 34, it later removed the cap signifying an official government survey location because the preliminary resurvey had not been approved prior to the sale.
The evidence established that Survco’s comer location was approximately 374 feet from the location preliminarily established by BLM as the original monument. The plaintiffs concluded that, based upon information from BLM, there was a probable encroachment. As a result, they purchased the acreage necessary to compensate for the possible encroachment on properties as the result of the defendants’ survey. Plaintiffs expended over $80,000 to purchase such properties.
YBP and CSR brought this action against the defendants based on negligence in surveying, breach of contract and breach of warranty. The District Court determined that all three claims hinged on a determination of the standard of care applicable to a land surveyor in his dealings with clients. YBP and CSR appeal the District Court’s decision that Burgess and Survco’s other surveyors did not breach their standard of care.
I.
Did the District Court correctly determine that defendants did not breach the standard of care they owed as Registered Land Surveyors?
The District Court found that the defendants did not breach the standard of care they owed to YBP and CSR. YBP and CSR assign clear error to this finding, claiming the District Court erred by failing to define the proper standard of care and faffing to state how the defendants met the standard. They contend that several of the District Court’s individual findings of fact are completely insupport able, thereby demonstrating that the District Court’s ultimate finding is in error. They further contend that this “shows a lack of understanding to the important distinctions which must be made in this case regarding surveying terms and techniques.”
This Court will not overturn a district court’s finding of fact unless it is clearly erroneous. Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. If substantial evidence in the record supports the findings, they are not clearly erroneous. Interstate Production Credit Ass’n, 820 P.2d at 1287. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a scintilla of evidence and may be somewhat less than a preponderance. Barrett v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080.
YBP and CSR first claim that the wording of Finding No. 15 demonstrates clear error, specifically:
15. In surveying property in Sections 31, 32, and 33 for YBP in 1983 Survco utilized and relied upon Ron Burgess’ corner recordation (for the common corner of Sections 33, 34,4, and 3) in locating the SW corner of Section 33 and the SW comer of Section 32, leading to the 1983 filing of Certificates of Survey 713, 714, and 718. (Emphasis added.)
YBP and CSR contend that this finding shows a lack of understanding of the important distinctions which must be made in this case regarding surveying terms and techniques. Although it may be argued that the terms “place” and “locate” have independent significance in surveying, we do not find that difference to be significant here. We conclude that this is not clearly erroneous and has no effect on the real meaning of that finding.
YBP and CSR next claim that, in Finding No. 17, the District Court suggests that the Forest Service created the section corner dispute and possible encroachment to force someone to buy federally-owned Section 4. That finding reads as follows:
17. Sometime in 1986, at the request of the U.S. Forest Service, the Bureau of Land Management (herein BLM), conducted a dependent resurvey in the Wineglass area in an effort to locate and establish the “original” common corner for Sections 33, 34, 4, and 3, and the SW comer of Section 33 and the SW corner of Section 32, along the southern boundary of YBP’s ‘Wineglass Ranch” property, all as part of a resurvey of Sections 4 and 6, Township 3 South, Range 9 East, Park County, Montana. The Forest Service had decided to dispose of public land in Sections 4 and 6 because such land formed an island of National Forest some five miles distant from the main body of the National Forest, and Sections 4 and 6 were land locked. The most likely buyers were adjacent landowners. No interest was shown in purchasing Sections 4 and 6 until the Forest Service notified Plaintiff YBP of a possible encroachment — if the common comer location chosen by surveyor Donald Palmer was, in fact, the true common section corner.
Substantial evidence in the record supports this finding; thus, it is not clearly erroneous. We conclude that this finding does not suggest that the Forest Service had improper motives for surveying this property.
YBP and CSR next contend that Finding No. 18 has many clear errors which are not supported by the record or by law. The language plaintiffs object to from that finding provides:
18. Despite the extensive surveying performed by BLM, the corner common to Sections 3, 4, 33, and 34, was neither officially monumented (nor remonumented), and no certification of Corner Recordation was filed by BLM.. . .
Although it is difficult to discern what plaintiffs claim is incorrect about this finding, their argument seems to be that the District Court did not make it sufficiently explicit by including all available testimony relating to the BLM’s dependent resurvey — particularly, the fact that BLM surveyors cannot legally file comer recordations and certificates of survey. Plaintiffs’ argument focuses on the possible effect of the BLM’s dependent resurvey if the government is required to conduct future surveying in the area. Despite plaintiffs’ argument about the effect of the government survey, the record clearly demonstrates that BLM did not officially remonument the corners of Section 4 and that BLM’s preliminary resurvey had absolutely no legal effect here. Finding No. 17 is not clearly erroneous, nor does it ignore the law.
Plaintiffs also assign clear error to Finding No. 19, which reads as follows:
19. There is no question but that the dependent resurvey conducted by BLM, as involved in this action, had an effect on property boundary locations in regard to Sections 3, 4,33, and 34. However, it appears clear in the evidence that efforts which were made to “correct” boundaries, (and acquisition of property to do so), were accomplished by Plaintiffs on a “preliminary” dependent resurvey made by BLM. Except as noted in Finding of Fact 18, the dependent resurvey was never officially completed so as to justify wholesale invalidation of Defendants’ location of the comer common to Sections 3, 4, 33, and 34, or Certificates of Survey No. 490, 541, 706, 714, 718, and 828.
Again, plaintiffs’ contentions center around their argument that the BLM corner location for Section 3, 4, 33 and 34 is the correct one and that the District Comb did not analyze the evidence according to the law of surveying. The District Court was not required to determine the correct comer location here. Finding No. 19 is supported by the record; therefore, it is not clearly erroneous.
YBP and CSR next argue that Finding No. 20 is clear error because the District Court describes YBP’s in-house surveyor’s recordations (filed shortly before trial) as “illegal and inadequate” without an explanation why they are illegal or inadequate. They contend that this makes it impossible for this Court to consider the validity of Finding No. 20, which provides:
20. Essentially, and despite an illegal and inadequate Certified Corner Recordation (Plaintiffs’ Exhibit 59) recorded shortly before trial, and in line with Findings of Fact 18 and 19, official land corner records with regard to Sections 31, 32 (except the SW corners of these sections), 33, 34, 3, 4, and 5, Townships 2 and 3, Range 9 East remain, after the BLM dependent resurvey and after trial, as they were before trial.
On May 19, 1988, David Albert, plaintiffs’ in-house surveyor, filed Certificate of Survey Addenda to those filed earlier by Burgess and Mike Foley. On these Certificate of Survey Addenda, Albert used the BLM’s comer location from the preliminary dependent resurvey, which was never approved for Section 4. Albert certified that he had performed no field work nor was he making a determination as to which line was correct. The evidence established that a Certificate of Survey must be signed by the Registered Land Surveyor who is responsible for the survey. Albert had nothing to do with either survey and filed documents without doing field work. There is substantial evidence in the record to support the District Court’s reference to an “illegal and inadequate” survey.
Regardless of Albert’s attempts to change them, Burgess’ Certificates of Survey and Corner Recordation remain the only properly certified documents for the corner of Sections 3, 4, 33 and 34. However, a determination of whether or not Albert’s documents are illegal or inadequate has no bearing on Finding No. 20. The substance of Finding No. 20 remains correct — this trial had no effect on corners or boundaries. It addressed negligence, breach of contract and breach of warranty issues.
Plaintiffs attack Finding No. 23 as contrary to law. It provides:
23. The establishment of comers and the filing of Certificates of Survey, as involved in this case, largely depends on efforts by current surveyors to follow field notes of the surveyors who originally surveyed the area. In this case, the original surveyors were William H. Baker and James H. Thomas who surveyed the area on July 4-5, 1873. It is clear to this Court, merely upon momentary reflection of the vast area involved in such survey, that it could not have been accomplished in any reasonably accurate fashion in two days. The best evidence of this fact is that it took the Forest Service and BLM about five years to complete only a minor part of what Baker and Thomas claimed to have accomplished in two days.
YBP and CSR contend that the District Court’s finding that the original government survey could not have been done with reasonable accuracy suggests that the defendants’ surveys and corner positions are more accurate than the original government survey. To support this argument, they cite Goodover v. Lindey’s Inc. (1988), 232 Mont. 302, 310, 757 P.2d 1290, 1295, as holding:
The location of corners and lines established by the government survey, when identified, is conclusive and the trae corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey.
Again, this contention of error relates to the true location of the corner which was not addressed in the plaintiffs’ complaint. Finding No. 23 includes nothing contrary to Goodover, which held that right or wrong, the original corners and lines are conclusive.
YBP and CSR also contend that Finding No. 27 is erroneous. It provides:
27. Defendant Ron Burgess, prior to trial erroneously assumed that BLM personnel had officially completed and filed a survey based upon known monuments, in accordance with accepted standards of practice. For this reason he wrote the letters marked as Plaintiffs’ Exhibits 18 and 22. Federal regulations prohibit reliance on preliminary surveys to alter property boundary lines and disputes arising between government surveyors and private surveyors cannot be decided solely by a federal agency. In any event, final approval of BLM’s survey did not occur until 1990; the approved survey affected only Section 31. Acting on their own initiative, Plaintiffs caused improper Certificates of Survey and a corner recordation certification to be compiled by YBP’s in-house surveyor based wholly on BLM’s unconfirmed preliminary survey, and without such surveyor conducting any field work.
Plaintiffs fault the statement that Burgess erroneously assumed that government personnel had officially completed and filed a survey according to accepted practices. They maintain that the letters speak for themselves. However, the record clearly supports the District Court’s finding. Burgess’ testimony adequately explained his reasons for changing his mind about the accuracy of BLM’s survey. An evidentiary admission as contained in Burgess’ letters is not conclusive and is always subject to explanation or contradiction. 2 J. Strong, McCormick on Evidence Section 254 (4th ed. 1992).
YBP and CSR further argue that the District Court’s statement that the BLM survey only affects Section 31 is incorrect and contradicts a statement in Finding No. 19. They also take issue with the statement relating to YBP’s in-house surveyor’s improper corner recordation and Certificate of Survey. Again, these have no affect on the holdings relating to the negligence, breach of contract and breach of warranty claims.
Plaintiffs contend that Finding No. 26 is not correct. That finding stated:
26. Here, Defendants set monuments and recorded certificates of survey and certified comer recordations between 1980 and 1983. The evidence and testimony establishes that Defendants’ survey work was performed and completed in accordance with standard survey practices, and consistent with the standard of care applicable to surveyors.
The District Court resolved each claim addressed in plaintiffs’ complaint by concluding that each theory of liability (negligence, breach of contract and breach of warranty) depended on the ultimate issue here — whether or not the defendants breached the standard of care owed by a Registered Land Surveyor. Plaintiffs contend that the District Court should have defined the standard of care.
During the course of the trial, seven surveyors testified with regard to the standard of care for surveyors. The District Court effectively consolidated the testimony of these surveyors in Findings No. 24 and 25:
24. ... [T]he land surveyor’s work often involves retracing the footsteps of surveyors who, approximately 100 years previous, performed surveys, kept field notes and set stone monuments to establish and perpetuate section lines and corners. ... While present-day, licensed land surveyors are required to follow local, state, and federal regulations that define present-day standards of practice while searching for ancient monuments, it is a foregone conclusion that present-day surveyors may or may not find a particular ancient monument. If a modern surveyor fails to find the ancient monument, or if he finds that the monument is obliterated, he must certify that he followed the standards of practice to remonument the location of the original surveyor. In such process, the surveyor is held to certify that he followed all of the rules and regulations in monumenting an original corner location ... but it is impossible for him to insure that he is, in fact, standing in the 100-year old footprints of the original surveyor. ... 25. It is possible for two qualified surveyors to meticulously follow the standards of practice for surveying while retracing a 100-year old survey, and disagree on a comer location without either being negligent. ... Locating and remonumenting ancient corner locations is not an exact science, and mere location of a corner, or approval or disapproval of a particular survey does not automatically establish either compliance of [sic] non-compliance with a surveyor’s standard of care.
At the close of the trial, the District Court complimented plaintiffs’ counsel on the manner in which he presented a very difficult technical case. The District Corut’s Findings of Fact and Conclusions of Law, when considered as a whole, demonstrate that the corut carefully considered the evidence and based its findings and conclusions upon the totality of the evidence presented. Although the District Court did not specifically state the standard of care for land surveyors, it cited with approval an earlier Montana case addressing surveying standards, which provides:
In surveying a tract of land according to a former plat or survey, the surveyor’s only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground.
Vaught v. McClymond (1945), 116 Mont. 542, 550, 155 P.2d 612, 616-17, (emphasis original) (quoting 8 Am. Jur. Boundaries, Section 102 (1937).
In Vaught, this Court remanded the case and instructed:
The survey should be made pursuant to the statutes prescribing the rales regulating the survey of government lands and in accord anee with instructions and regulations issued thereunder by the general land office for the guidance of county surveyors and others in ascertaining boundary lines created by the government survey and in relocating corners or monuments theretofore established which may have been lost or obliterated.
Vaught, 116 Mont. at 559, 155 P.2d at 620.
The defendants presented extensive evidence to establish that they complied with rules and regulations as set forth in Bureau of Land Management, U.S. Department of the Interior, Manual of Surveying Instructions (1973). Testimony by defendant Burgess and six other surveyors established that this 1973 manual is the approved source relied on by both government surveyors and Registered Land Surveyors. The surveyors testified in detail as to what was considered the “best evidence obtainable.” The best evidence includes original government field notes, county records and field notes from other surveyors who have surveyed the land, if available. We conclude that a surveyor who complies with rules and regulations as set forth in the approved source, currently the 1973 Manual of Surveying Instructions, and who uses the best evidence obtainable meets the standard of care required for Registered Land Surveyors.
The District Court found that the evidence and testimony established that Survco’s survey was performed and completed in accordance with standard survey practices and, therefore, was consistent with the standard of care. The defendant Burgess was called as a witness and he confirmed the standard of care as being the same as outlined above by the plaintiffs’ witnesses. Our review of the record confirms the presence of substantial evidence to establish that the survey work of the defendants was performed as described in Finding No. 24.
The District Court, as trier of fact, is in the best position to determine the facts by assessing the demeanor of the witnesses, the testimony presented and the totality of the evidence before the court. General Mills, Inc. v. Zerbe Bros., Inc. (1983), 207 Mont. 19, 23, 672 P.2d 1109, 1111. Further, the District Court is not obligated to outline in its findings all of the testimony presented at the trial. McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 83-84, 666 P.2d 742, 746. The court concluded that YBP and CSR failed to establish by a preponderance of the evidence that the defendants were negligent or that they did not perform their duties with a reasonable degree of care and skill. Plaintiffs contend that to uphold the District Court’s analysis would overturn decades of established law governing sur veyor conduct. This contention is not supported by the court’s findings and conclusions. The record contains substantial evidence to support the ultimate conclusion made by the District Court that the defendants did not breach the standard of care.
We hold that the District Court correctly determined that the defendants did not breach the standard of care they owed as Registered Land Surveyors.
II.
Did the District Court correctly refuse to award damages based on plaintiffs’ reliance upon defendants’ admissions of erroneous surveys?
YBP and CSR contend that they relied on defendant Burgess’ admissions in two letters discussing the possibility that Survco’s survey was erroneous and, therefore, Burgess “must be estopped from reneging on these admissions upon which Plaintiffs detrimentally relied.” Burgess wrote two letters — one to his attorney and the other to Howard Zeman, a BLM employee. In his letter to his attorney, Burgess noted: “It is generally agreed, the line is incorrect and a great number of Yellowstone Basin Properties’ tracts erroneously encroach on about 31.6 acres in Section 4 and 6.7 acres in Section 6.” Burgess’ letter states that he felt a moral obligation to try and resolve the problem created by the erroneous survey done by Survco. He also noted that YBP had blocked the only viable solution that had been discovered. In his letter to Howard Zeman, Burgess stated that Survco failed to find some original stones which BLM surveyors later found. However, Burgess testified that he was led to believe that the government surveyors had followed their own regulations, when in fact they may not have done so. The evidence presented during the trial revealed that no one had found the original corner monument for Sections 3, 4, 33 and 34.
The District Court found, and the testimony confirms, that surveying is not an exact science and surveyors are not insurers of their work. Burgess’ commendable attempts to assist YBP in finding a solution to the possible encroachment illustrate his good faith efforts to correct problems which arose after Survco’s survey. At the time, he believed that government surveyors had found the original corner monument to Sections 3,4,33 and 34. Admissions such as those made by Burgess, even if they subsequently are proven to be supportable by evidence at a trial, do not conclusively establish a breach of the standard of care. The testimony established that two surveyors, both meeting surveying standards, may find different comer locations for obliterated corners with neither of them being negligent.
The BLM conducted a dependent resurvey in the area of Sections 4 and 6 of Township 3 South, Range 9 East. A dependent resurvey is a retracement and reestablishment of the original survey lines in their true original positions according to the best available evidence of the positions of the original comers. Manual of Surveying Instructions, at 145. A dependent resurvey is not official or binding on the United States government until and unless it is approved by the Director of the BLM. Manual of Surveying Instructions, at 149. The government’s dependent resurvey did not ultimately encompass the corner for either Sections 3, 4, 33 and 34 or Sections 3, 4, 9 and 10. The District Court found that federal regulations “prohibit reliance on preliminary surveys to alter property boundary lines and disputes arising between government surveyors and private surveyors cannot be decided solely by a federal agency.” The plaintiffs purchased additional land to correct a possible encroachment without a reliable determination of the accuracy of Survco’s survey or a judicial determination of the comer monument location. They purchased this additional land from a private party after the government no longer owned Section 4. They relied upon representations made by government surveyors prior to an official, binding government resurvey. The regulations state: “No alteration in the position of improvements or claim boundaries should be made in advance of the official acceptance of the resurvey.” Manual of Surveying Instructions, at 149. We cannot say that plaintiffs’ decision to purchase more property was justified as long as the correct corner location remained in dispute.
We also cannot say that plaintiffs were justified in relying on admissions made by Burgess without confirmation from the BLM. Whether or not defendants should be estopped from retracting admissions has no relation to liability. As noted above, surveyors are not insurers — their duty is to complete a survey using the best evidence available to them according to the accepted rales and regulations. Plaintiffs are sophisticated businesses who employed an in-house surveyor who was licensed as a Registered Land Surveyor and familiar with the 1973 Manual of Surveying Instructions. Plaintiffs made a business decision to purchase additional land. We conclude that their reliance upon Burgess’ admissions was not justified and they are not entitled to equitable damages based on such reliance.
We hold that the District Court did not err in refusing to award damages to YBP and CSR based on justifiable reliance upon Burgess’ admissions of erroneous surveys.
m.
Did the District Court err in declining to determine the true locations of section corners despite the parties’ express request that it make the determinations?
YBP and CSR contend that the District Court erred by not determining which of the two surveys should be accepted as the original corner location to Sections 3,4, 33 and 34. The District Court expressly declined to rule on this issue, stating:
The Complaint filed by Plaintiffs does not seek judicial determination of any survey, or any comer location. Rather, it reflects that the sole relief desired by Plaintiffs is monetary damages based upon any of three theories: breach of contract, breach of warranty, and negligence.
Plaintiffs’ in-house surveyor, David Albert, relied on the BLM survey and did no field work prior to filing his addenda to Burgess’ Certificates of Survey. Substantial evidence was presented which cast doubt on the BLM preliminary resurvey. From the record, it does not appear that BLM surveyors followed surveying rules and regulations. Therefore, the District Court only had evidence of one survey which conformed to the required standards — that of Survco. We conclude that the District Court correctly refused to adjudicate the corner location based on the totality of the evidence presented during the trial.
We hold that the District Court did not err by declining to determine the tme locations of section comers despite the parties’ express request that it make those determinations.
IV.
Did the District Court fail to determine whether defendants breached their contracts with YBP and CSR to provide YBP and CSR with surveys of twenty-plus acre tracts?
YBP and CSR contend that the District Court failed to rule on whether the defendants breached their contracts to survey the property. The District Court expressly stated:
... Interestingly enough, to [recover damages] under each theory advanced by Plaintiffs requires establishment of the same basis for liability, (summarized very nicely in Plaintiffs’ Complaint, paragraph 20, page 5):
“Defendants ... failed to follow regular accepted survey standards in failing to exercise accepted standards of care, prudence and skill.”
The District Court held that YBP and CSR failed to produce sufficient evidence for liability based on this standard. YBP and CSR contracted with Survco to provide surveys of twenty-acre tracts. This is what they received. The District Court stated that YBP and CSR
failed to produce, consistent with the noted basis for liability, sufficient evidence upon which Defendants’ liability may be established. The Court views the totality of the evidence as indicating that Defendants’ surveying activities were neither haphazard or arbitrary, nor were they precipitous or based upon a lack of diligence. Rather, the record reflects that Defendants made a careful and studied analysis of circumstances encountered in the course of rendering surveying services, and based decisions upon this same careful and studied analysis, fully consistent with surveyors’ accepted standards of “care, prudence and skill.” The fact that Defendant Burgess may have admitted errors in surveying ... is, essentially, irrelevant to the issue of whether Defendants’ performance met the relevant criteria of the applicable standard of care, prudence and skill upon which Defendants’ liability must be based.
YBP and CSR contend that if the corners are located where the BLM survey located them, there is a breach because some of the lots will be less than the twenty-acre lots they contracted for. The fact remains that Survco provided competent surveys of twenty-acre lots, whether or not those lots encroached upon Section 4. Plaintiffs’ three-paragraph argument on this issue is unconvincing and fails to set forth any authority to support this theory for a breach of contract. We conclude that the contract was not breached.
We hold that the District Court did not err because it did in fact determine that Burgess and Survco did not breach the contracts to provide YBP and CSR with surveys of twenty-plus acre tracts.
We affirm the District Court on all issues presented.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and TRIEWEILER concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
This is an appeal from an Order of the Tenth Judicial District Court, Fergus County, granting respondent’s motion for a new trial. We reverse.
The issue before us is whether the District Court abused its discretion in granting a new trial. Resolution of the issue necessitates a determination of whether workers’ compensation exclusivity and co-employee immunity are affirmative defenses or matters of subject matter jurisdiction.
Appellant Michael Brown (Brown) brought a negligence claim against respondent Wes Ehlert (Ehlert) seeking compensation for personal injury and property damage sustained in a two car automobile collision. The point of impact in the February 1989 accident was near the center of a narrow mountain road approximately one mile from the Blue Range Mining Company mine where both Brown and Ehlert were employed.
Brown filed a complaint against Ehlert seeking damages for Ehlert’s negligence. Ehlert generally denied the allegations of negligence and raised the affirmative defense of comparative negligence. He raised no other affirmative defenses either in his pleadings, at the pretrial conference, or in the pretrial order; he counterclaimed for property damage.
On June 18, 1991, following Brown’s case-in-chief, Ehlert moved to strike Brown’s personal injury claim based on the exclusivity of the Montana Workers’ Compensation Act (the Act). He asserted that Brown’s own evidence established that both he and Brown were within the course and scope of their employment at the time of the collision, that the Act constituted the exclusive remedy for Brown’s personal injury claim and, consequently, that the District Court was without subject matter jurisdiction over that claim. He argued that it was Brown’s obligation to state his personal injury claim in such a manner as to bring it within one of the exceptions to the exclusive provisions of the Act; according to Ehlert, Brown’s failure to do so excused any duty on his own part to plead the Act as an affirmative defense. Brown responded that applicability of the Act is an affirmative defense which is waived if not raised timely. The court did not rule immediately, but subsequently denied Ehlert’s motion.
The jury returned a verdict in Brown’s favor on June 19, 1991. Ehlert moved for judgment notwithstanding the verdict, asserting a variety of arguments relating to the exclusivity of the Act and plaintiff’s burden to plead himself into the court’s jurisdiction by alleging facts removing his personal injury claim from application of the Act. Brown again responded that exclusivity and co-employee immunity under the Act do not relate to subject matter jurisdiction, but are affirmative defenses similar to other avoidance defenses such as comparative negligence and statutes of limitation which must be pleaded affirmatively. The District Court denied Ehlert’s motion and entered judgment for Brown.
Ehlert subsequently moved for a new trial on a number of alternative bases, including the court’s error of law in rejecting his subject matter jurisdiction argument. On September 9, 1991, the court granted Ehlert’s motion for a new trial, citing Massey v. Selensky (1984), 212 Mont. 68, 685 P.2d 938 (Massey I), and Massey v. Selensky (1987), 225 Mont. 101, 731 P.2d 906 (Massey II). This appeal followed.
We will not reverse a district court’s grant or denial of a new trial absent a manifest abuse of discretion. Tappan v. Higgins (1989), 240 Mont. 158, 783 P.2d 396. We note at the outset that the court’s order does not comply fully with Rule 59(f), M.R.Civ.P. We need not remand for entry of findings sufficient for our review in this case, however, because it is apparent from the parties’ arguments to the District Court and from the court’s citation to the Massey cases that the order granting a new trial could have been based only on the court’s acceptance of Ehlert’s subject matter jurisdiction argument. Thus, we must determine whether workers’ compensation exclusivity and co-employee immunity under the Act are matters which go to the district court’s subject matter jurisdiction or, alternatively, whether they are affirmative defenses which are waived if not raised timely.
Given the District Court’s reliance, a brief review of the Massey cases is appropriate before we turn to the resolution of the specific issue before us. We begin by noting that, while applicability of the Act to a negligence claim against a co-worker was involved in both Massey cases, neither case addressed the issue presently before us.
The Massey cases arose from an accident in which plaintiff Massey was injured after being struck by defendant Selensky’s unoccupied truck. Both parties were employees of the Anaconda Company at the time and had ridden to work together in Selensky’s truck. The injury occurred after their arrival at Anaconda’s property but before their shift began. Massey filed for, and received, workers’ compensation benefits as a result of his injuries. Massey then sued Selensky, alleging negligence. In Massey I, Selensky moved for summary judgment after a period of discovery, alleging that he was immune from suit because the injury was compensable under the Workers’ Compensation Act. Summary judgment was entered in Selensky’s favor on the grounds that Selensky was within the course and scope of his employment at the time of the injury.
On appeal, we noted that it is “well settled in Montana that a co-employee is immune from liability for negligent acts resulting in injuries which are compensable under the Workers’ Compensation Act.” Massey I, 685 P.2d at 940. We went on, however, to state specifically that “the simple fact that two persons have the same employer would not necessarily cause this rule to apply.” Id. In reversing the summary judgment and remanding for further proceedings, we set forth the proper test to be used by the district courts in determining whether the co-worker was acting within the course and scope of employment at the time the negligent act occurred, noting that, if so, the co-worker is immune from suit. Massey I did not address the issue of when and how co-employee immunity must be raised.
Massey II was the appeal after remand of Massey I. On remand, the district court entered partial summary judgment for plaintiff Massey on the issue of co-employee immunity, applying the “going and coming” rule. On appeal, we noted that “[c]o-employee immunity is essential to the integrity of the Act,” and again reversed, determining that the premises rule, rather than the going and coming rule, was appropriate to the facts of the case. Massey II, 731 P.2d at 907. We found that Selensky was protected by co-employee immunity from common law liability. Again, however, the issue of when and how co-employee immunity under the Act must be raised was not before us in Massey II.
Ehlert is correct in asserting that if exclusivity and co-employee immunity under the Act are questions of subject matter jurisdiction, they can be raised at any time under Rule 12(h), M.R.Civ.P. Ehlert asserts that Sec. 39-71-2905, MCA, grants exclusive authority to make workers’ compensation determinations to the Workers’ Compensation Court and that Sec. 27-1-703, MCA, makes it clear that a district court cannot consider negligence on the part of an injured worker’s co-employee to the extent the co-employee has tort immunity under the Act. Ehlert argues that these correct statements of law establish the District Court’s lack of subject matter jurisdiction over Brown’s personal injury claim. We disagree.
Section 39-71-2905, MCA, is not applicable here. No dispute under Chapter 71 of Title 39 is presented here and the District Court has not been requested to make a workers’ compensation determination. Further, Sec. 27-1-703, MCA, provides that to the extent a co-employee has immunity from liability under the Act, a trier of fact cannot consider or determine negligence by the co-employee. The wording of the statute itself suggests that the existence of such immunity must be determined by the District Court. Indeed, we specifically stated in Massey I what the legislature implied in Sec. 27-1-703(4), MCA:
[T]he trial court must expressly address the issue of whether the fellow worker was a co-employee for purposes of the immunity statute.
Massey I, 685 P.2d at 941. If the court finds that co-employee immunity exists, the immunity is a bar to common law negligence liability for personal injuries; if no immunity exists, the action can proceed. Thus, while Massey I makes it clear that a district court must make the immunity determination, it also assumes that the issue has been raised timely as was the case therein. Subject matter jurisdiction was not the issue.
Acceptance of Ehlert’s subject matter jurisdiction contention would radically alter our modern rules of civil practice and procedure. Plaintiffs bringing common law negligence actions could no longer make “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a), M.R.Civ.P. Instead, they would be required to allege that neither exclusivity nor co-employee immunity under the Workers’ Compensation Act was applicable to their claim in order to plead their way into the court’s jurisdiction. Presumably, it also would be incumbent on such plaintiffs to allege the inapplicability of all other irmmmities and bars to their action. In the event of a general denial by the defendant, one assumes the plaintiff would be put to her or his proof on all such matters. Such a result is not only contrary to our procedural rules, it is also contrary to our most fundamental notions of the pleading and proof burdens of the respective parties to a lawsuit. Nothing in the Act, the Montana Rules of Civil Procedure or our cases supports such a result.
Ehlert relied at the District Court on Mitchell v. Banking Corporation of Montana (1929), 83 Mont. 581, 273 P. 1055, as support for his subject matter jurisdiction argument. In Mitchell, the plaintiffs brought suit against the stockholders of a banking corporation to enforce a specific statutory liability; the statute created both the right and the remedy and contained a time limit for bringing the action. This Court held that, under such circumstances, “[allegations of fact showing that the action was commenced within time are, therefore, a necessary part of the complaint...” Mitchell, 273 P. at 1057. Mitchell does not mandate a conclusion here that Brown must allege inapplicability of the Act.
The case before us is nearly the reverse of Mitchell. There, the action was premised in its entirety on a statutory right and remedy; our conclusion specifically was based on the fact that the action did not exist at common law and that, therefore, the plaintiffs had to meet each and every statutory requirement in setting forth their claim. Here, Brown’s action for personal injuries is a common law negligence claim.
The jurisdiction of Montana’s district courts over common law personal injury claims cannot be disputed. See Sec. 3-5-302, MCA. In addition to alleging the facts of the claim, Brown further alleged that the accident occurred in Fergus County, bringing the matter under the jurisdiction of the Tenth Judicial District Court. Thus, Brown met his pleading burden under Rule 8, M.R.Civ.P No statute or rule requires pleading the inapplicability of the Workers’ Compensation Act.
On the other hand, Rule 8(b), M.R.Civ.R, requires a party to state her or his defenses to each claim asserted. In addition, Rule 8(c) requires a party to set forth affirmatively all matters constituting avoidance or affirmative defenses. The rationale for requiring that these defenses be affirmatively pleaded is simple: the same principles of fairness and notice which require a plaintiff to set forth the basis of the claim require a defendant to shoulder a corresponding duty to set out not merely general denials as appropriate, but also those specific defenses not raised by general denials by which a defendant seeks to avoid liability, rather than merely to controvert plaintiff’s factual allegations.
The essence of affirmative defenses is to concede that while the plaintiff otherwise may have a good cause of action, the cause of action no longer exists because some statute or rule permits defendant to avoid liability for the acts alleged. Under these principles, exclusivity and co-employee immunity under the Workers’ Compensation Act clearly constitute affirmative defenses. They do not go to the merits of Brown’s personal injury complaint; rather, they assert that the Act protects Ehlert from liability for the very acts alleged by Brown. As such, they are similar to legislative immunity under Sec. 2-9-111, MCA, and to other affirmative defenses such as statutes of limitations and the statute of frauds. We conclude that Workers’ Compensation exclusivity and co-employee immunity are matters of avoidance which, pursuant to Rule 8(c), M.R.Civ.P., must be pleaded affirmatively.
Furthermore, it is well settled in Montana that affirmative defenses are waived if not raised timely. See Chandler v. Madsen (1982), 197 Mont. 234, 642 P.2d 1028. Here, Ehlert did not raise exclusivity or co-employee immunity under the Act in his initial pleadings, after opportunity for discovery, or at the pretrial conference. The matters were raised only after Brown’s case-in-chief. This is far too late to provide appropriate notice to Brown and to apprise the District Court that the issues were before it for consideration under the Massey I test or otherwise. We hold that Ehlert waived the affirmative defenses of Workers’ Compensation Act exclusivity and co-employee immunity.
Our results here are consistent with those reached in other jurisdictions. In Doney v. Tambouratgis (Cal. 1979), 587 P.2d 1160, the defendant attempted to raise the exclusivity defense in a motion for nonsuit after the plaintiff’s case-in-chief and again in motions for judgment notwithstanding the verdict and for new trial. The Supreme Court of California rejected a subject matter jurisdiction argument, concluding that the trial court’s common law jurisdiction continued unless and until coverage under the workers’ compensation statute was demonstrated; such coverage could be shown by allegations of fact by plaintiff in the complaint or “by the defendant through setting up the affirmative defense of coverage in responsive pleadings and proceeding to prove the existence of the requisite conditions.” Doney, 587 P.2d at 1164. Similarly, in Bendar v. Rosen (N.J.Super.A.D. 1991), 588 A.2d 1264, a co-worker was sued for personal injuries caused by an automobile accident. The defendant’s attorney did not raise co-employee immunity until after the jury was empaneled. The New Jersey court held that, under the applicable procedural rules, co-employee immunity was waived if not raised by motion before trial or as an affirmative defense. Bendar, 588 A.2d at 1267. While we recognize that the cited cases are distinguishable in part because the workers’ compensation acts in California and New Jersey are not identical to Montana’s Act, the driving force in those cases and in the case before us relates to pleading rules and principles, rather than to the specifics of each state’s statutory workers’ compensation acts.
In conclusion, the District Court based its grant of a new trial on an erroneous interpretation of our Massey cases. Because exclusivity and co-employee immunity under the Workers’ Compensation Act are affirmative defenses which are waived if not raised timely, we hold that the District Court manifestly abused its discretion in granting a new trial.
We note that Ehlert attempts to raise the issue of improper injection of the fact of liability insurance as an alternative basis on which this Court should uphold the District Court’s grant of a new trial. Following a mention of insurance by Brown’s counsel in closing argument, Ehlert moved for a mistrial; the motion was denied. Ehlert also raised this issue as one of the grounds for his motion for a new trial. The District Court did not address the issue in its grant of a new trial. Ehlert did not cross-appeal the District Court’s denial of his motion for mistrial or its failure to grant a new trial on this basis. Because this is a matter separate and distinct from that for which Brown seeks our review, and absent a cross-appeal, we are precluded from reviewing this issue on appeal. Rouse v. Anaconda-Deer Lodge County (1991), 250 Mont. 1, 817 P.2d 690.
Reversed with instructions to reinstate the jury verdict and enter judgment accordingly.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, HUNT, McDONOUGH and WEBER concur.
|
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] |
JUSTICE WEBER
delivered the Opinion of the Court.
A jury trial was held in the District Court for the Nineteenth Judicial District, Lincoln County. Defendant, Bruce Paul Cameron, was found guilty of criminal sale of dangerous drugs in violation of § 45-9-101, MCA. Defendant appeals. We reverse.
The issues for our consideration are:
1. Did the District Court properly allow the State to introduce evidence of a prior bad act as rebuttal evidence?
2. Did the District Court properly allow the State to introduce evidence of another drug sale which took place the day prior to the offense charged in the information as part of the corpus delicti ?
From September of 1990 to May of 1991, the Lincoln County Sheriff’s Department conducted an extensive undercover drug operation in the Libby area. Rodney Reynolds (Reynolds) was arrested for illegal drug activities and subsequently agreed to participate in the undercover operation in exchange for a suspended sentence.
On May 3,1991, Reynolds telephoned an acquaintance, Pat Grotjohn (Grotjohn). Grotjohn told him that he knew where he could obtain some cocaine and Reynolds drove to Grotjohn’s residence. Reynolds was wearing a transmitter which was monitored by the Sheriff’s deputies. Reynolds testified that he told Grotjohn that he wanted to buy an “eight ball”, which is the street term for three and one-half grams of cocaine. Grotjohn told him it would cost $240.
The two men drove away in Reynold’s car. Grotjohn dropped off Reynolds at a drive-in restaurant and drove off alone in Reynold’s car to obtain the cocaine. The Sheriff’s deputies lost sight of the Grotjohn vehicle. When Grotjohn returned to pick up Reynolds, he completed the sale of the cocaine to Reynolds for the agreed price.
The next day, on May 4, 1991, Reynolds went to Grotjohn’s residence to buy cocaine, again wearing a transmitter. This time a deputy followed Grotjohn. The deputy testified he saw Grotjohn turn off the main road and drive up near defendant’s house. However, he further testified that because his vision was blocked by trees and shrubs, he could not see more. The deputy drove slowly past the turnoff, and as he did, he saw Grotjohn get out of the car. Because he did not want to be spotted, the deputy drove by, then stopped, but could not see where Grotjohn went. Grotjohn remained in the area for about one hour between noon and one p.m.
Grotjohn was ultimately arrested for the two sales to Reynolds. However, he agreed to testify against defendant in return for one felony charge of sale of dangerous drugs being dropped.
At trial, Grotjohn testified that defendant sold him cocaine inside defendant’s residence both on May 3rd and May 4th. Grotjohn testified that defendant’s vehicle was at the residence on both occasions. There was no audio or visual surveillance of the alleged transactions between Grotjohn and defendant. Grotjohn was the only witness who testified that defendant sold him the drugs which he eventually resold to Reynolds.
Defendant was charged with one count of criminal sale of dangerous drugs based on the May 4th transaction. However, over objection, the State was allowed to present the Grotjohn testimony on the alleged transaction of May 3rd.
At trial defendant testified that he and a friend went “four-wheeling” on May 4th. He testified that they were gone from about 9:30 a.m. to 5:00 p.m. Defendant’s friend testified and corroborated defendant’s story. Defendant’s neighbors testified that they saw him leave his residence that morning and did not see him return until late afternoon.
At the beginning of the trial, the defense moved in limine to exclude evidence of a gun threat that allegedly occurred months before the alleged drug transaction which is the subject of this appeal. The District Court granted the motion in limine and ruled that the gun threat testimony could be introduced only if Grotjohn’s credibility was attacked.
In rebuttal, the State was allowed to recall Grotjohn. The State argued that Grotjohn’s credibility had been attacked, and therefore, to bolster Grotjohn’s credibility, Grotjohn was allowed to testify that defendant had threatened Grotjohn with a rifle two or three months before the alleged drug transaction took place. The defense objected prior to the testimony and moved for a mistrial after the testimony was allowed. The motion for mistrial was denied. The jury returned a verdict of guilty. Defendant appeals.
I
Did the District Court properly allow the State to introduce evidence of a prior bad act as rebuttal evidence?
Defendant maintains that the District Court committed revers ible error by allowing testimony regarding the alleged gun threat into evidence. Defendant contends the testimony violated both Rule 404, M.R.Evid., and the Just rule. We agree.
The State emphasized that the defense presented two witnesses who testified that when Grotjohn came to the Cameron residence on May 4, he was acting in a furtive and suspicious manner and contradicted Grotjohn’s testimony that he got out of his vehicle at the Cameron residence. The primary argument by the State was that the evidence of the threat with the rifle was corroborative of Grotjohn’s credibility because it explained his manner of testifying and demonstrated why he had been unsure on some points because he was fearful.
The State contended that Grotjohn would testify to his fear of the defendant as a result of the threat with a rifle and that such testimony would explain his nervous behavior. However, Grotjohn’s testimony did not support the State’s contentions.
Grotjohn testified that he was visiting the defendant at the defendant’s home when the gun threat took place. He testified that he was “uneasy with the [defendant],” but stayed at defendant’s home the rest of the evening. On cross-examination Grotjohn testified that he did not feel threatened by the defendant after that, and that the defendant and Grotjohn remained friends. Last, he testified that the threat had no effect on his conduct even a week later. Grotjohn’s testimony effectively eliminated the State’s contention that the evidence of the gun threat demonstrated Grotjohn’s fear of the defendant. Grotjohn’s testimony is not admissible to demonstrate that fear on his part caused him to testify in a particular manner.
The State argues by reference to various Montana cases involving the credibility of the accused. Such cases are not authority for consideration of the credibility of witness Grotjohn. If it was the credibility of Grotjohn that was in question, then the State cannot offer evidence of the defendant’s bad character to bolster Grotjohn’s credibility. Rule 404, M.R.Evid.
With regard to character of a witness Rule 404, M.R.Evid., refers to Rule 608. That rule provides that the credibility of a witness may be supported by evidence in the form of an opinion or reputation but is subject to the limitations that the evidence may refer only to character for truthfulness or untruthfulness and that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence. The record does not demonstrate such an attack by opinion or reputation evidence. We conclude that the evidence of the prior bad act was not admissible under the Montana Rules of Evidence.
The gun threat by the defendant against Grotjohn constitutes evidence of other crimes, wrongs or acts, and it is necessary to analyze the same under the Modified Just Rule as provided in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. State v. Matt modified the Just Rule. The Modified Just Rule provides that in order to introduce evidence of other crimes, wrongs or acts as referred to and described in Rules 404(b) and 403, M.R.Evid:
(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
State v. Matt, 814 P.2d at 56. Furthermore, the Modified Just Rule specifically includes the following procedural protections:
(1) Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted. (Emphasis added).
(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.
Id. at 56.
We conclude that the threat evidence was not admissible for several reasons under the Modified Just Rule. The State failed to give written notice specifying the evidence to be admitted and the specific Rule 404(b) purposes for which it was to be admitted, and as a result failed to meet the initial procedural protection. In addition, the gun threat evidence failed to meet the first element of the Modified Just Rule because there is no similarity between the alleged gun threat and the charged crime of criminal sale of dangerous drugs. We conclude that the evidence of the prior bad act was not admissible under the Modified Just Rule.
We hold that the District Court committed reversible error in allowing the State to introduce evidence of a prior bad act as rebuttal evidence.
II
Did the District Court properly allow the State to introduce evidence of another drug sale which took place the day prior to the offense charged in the information as part of the corpus delicti ?
On the morning of trial, defense counsel presented the District Court with a motion in limine to exclude evidence of the alleged May 3rd drug transaction on the grounds that it was unfairly prejudicial. The District Court allowed evidence of the May 3rd transaction to be introduced as part of the corpus delicti of the crime charged.
The State maintains the evidence was admissible as part of the corpus delicti. It maintains that under State v. Frates (1972), 160 Mont. 431, 503 P.2d 47, evidence of the May 3rd sale was admissible because the sales are so related that proof of one tends to establish the other.
In Frates, defendant was convicted of the sale of 900 LSD tablets to an undercover police officer on March 17, 1971. The State was allowed to prove that on March 9, 1971, defendant came to the Midway Bar and handed an informant a sack containing 100 capsules of LSD for which he was paid $150; and on March 14,1971, the same defendant returned to the Midway Bar and handed the informant another sack containing 100 LSD capsules. The evidence of these two transactions was the principal assignment of error. In holding that the evidence was admissible, this Court stated:
The evidence of the two prior sales of LSD to the informer in the instant case is part of the corpus delicti of the crime with which the defendant is charged. It is a part of the totality of events and occurrences leading to and culnainating in the sale of the 900 LSD tablets to the undercover police officer of which defendant was convicted. It tends to explain the circumstances leading to the commission of the crime charged, establishes defendant’s intent to commit the crime charged, and negatives the defense of entrapment. As such, it is clearly relevant, probative and competent evidence tending to prove the crime charged ....
Frates, 503 P.2d at 50. In order that there may be no misunderstanding in future cases, we specifically overrule the foregoing holding in Frates. Our explanation for the overruling will appear in the subsequent discussion of cases which took place after Frates was decided in 1972.
In State v. Trombley (1980), 190 Mont. 218, 620 P.2d 367, this Court referred to State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009, and pointed out that under that case the defendant objected to the introduction of evidence, labeling it inadmissible other crimes evidence. Referring to State v. Jackson this Court then stated:
In our opinion affirming the District Court’s admission of this evidence, we recognized the distinction between “other crimes” evidence and evidence of the defendant’s simultaneous misconduct inseparably related to the alleged criminal act.
We recognize the general rule that when a defendant is put on trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone. Evidence which in any manner shows, or tends to show, he has committed another crime wholly independent, even though it is a crime of the same sort, is irrelevant and inadmissible, ...
In this case the prosecution did not introduce evidence of other “unrelated” or “wholly independent” crimes. The prosecution only sought to prove that defendant was exercising unauthorized control over various items ... Defendant’s possession of... (this other property) was inextricably related to the property referred to in the charging information. We are not, therefore, involved with the introduction of evidence of wholly independent or unrelated crimes. The evidence was properly admitted.
The prosecution here is not required to meet the Just requirements for the introduction of “other crimes” evidence because evidence of defendant’s possession and use of the cards is not “wholly independent” or “unrelated” other crimes evidence. (Citations omitted.)
Trombley, 620 P.2d at 368. As is apparent, the standard being applied by this Court had markedly changed from Frates.
In State v. Romero (1986), 224 Mont. 431, 730 P.2d 1157, the defendant asserted that testimony about his activities on the day before he was arrested and about .his sales of marijuana to the undercover agent did not meet the requirements of State v. Just. In response to that contention, in holding that the evidence was properly admissible, this Court stated:
Evidence of acts which are inextricably or inseparably linked with the crime charged is admissible without regard to the rules governing “other crimes” evidence. State v. Riley (1982), 199 Mont. 413, 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499 .... We conclude that these prior acts, which occurred a few hours before his arrest, are inextricably linked to the charged crime of possession of marijuana with intent to sell. Therefore, the Just and Jenson requirements do not apply to the testimony about Mr. Romero’s activities in Columbus.
Romero, 730 P.2d at 1162. The clear holding was that evidence of acts which are inextricably or inseparably linked with the crime charged are admissible without regard to the other crimes evidence rules under the Just Rule.
In State v. Ungaretti (1989), 239 Mont. 314, 779 P.2d 923, this Court referred to the above quoted holding from Romero. In concluding that the other crimes evidence was introduced merely as a part of the corpus delicti, the Court stated:
We conclude there is no question but that the activities of the appellant which resulted in her arrest in Nevada were inseparable and formed much of the basis of the crime charged here ....
In [State v.] Gillham [1983), 206 Mont. 169, 670 P.2d 544,] and [State v.]Riley, [(1982), 199 Mont. 413, 649 P.2d 1273,]... this Court held that the State is entitled to Present the entire corpus delicti of the charged offense including matters closely related to the offense and explanatory of it." The events which took place in Nevada supported and explained the State’s position at trial: that appellant had constructive possession of the marijuana while she was in Montana .... We conclude that the “other crimes” evidence was introduced merely as a part of the corpus delicti and thus did not constitute reversible error.
Ungaretti, 779 P.2d at 926.
State v. Christensen (1990), 244 Mont. 312, 797 P.2d 893, is a case somewhat more comparable to our present case. In that case the defendant was charged in two separate counties with marijuana growing operations and the possession and sale of marijuana. The State argued that the evidence from Flathead County was not other crimes evidence and was admissible as an inextricable and inseparable part of the corpus delicti of the Glacier County operation. The State attempted to contend that the defendant was conducting a single growing operation in two different locations. In response to that contention the Court stated:
We disagree with the State’s argument. While the Flathead and Glacier Counties operations were nearly identical operations carried out by the same individuals, the similarity of crimes is not the test of whether they fall within the same corpus delicti. The issue is whether the evidence of the Flathead County drug operation is inextricably or inseparably linked to the Glacier County operation. We hold that it is not. The State has not shown that a jury could not fully comprehend the crimes charged in Glacier County without reference to the Flathead County evidence. (Emphasis added.)
Christensen, 797 P.2d at 898. The facts in our present case are similar to this aspect of Christensen. Here the only connection between the sales of May 3 and May 4, is that the parties were the same and that cocaine was sold in both instances. However, the State has failed to demonstrate that the evidence of the May 3 sale was in any manner inextricably or inseparably linked to the May 4 sale. Under that circumstance, the evidence is not admissible. As pointed out in Christensen, the similarity of crimes is not the test of whether they fall within the same corpus delicti. We further point out that as stated in Ungaretti, the evidence may be admissible if it is closely related to the offense and “explanatory of it.” There is nothing presented in the facts of the present case to demonstrate that the May 3 sale is explanatory of the May 4 sale.
We hold the District Court committed reversible error in allowing the introduction of another drug sale which took place the day prior to the offense charged.
We reverse the judgment of the District Court and remand for further proceedings consistent with this opinion.
JUSTICES HARRISON, TRIEWEILER, McDONOUGH, and HUNT concur.
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JUSTICE HUNT
delivered the opinion of the Court.
Plaintiffs brought suit in the District Court of the Eighteenth Judicial District, Gallatin County, alleging, among other things, undue influence and actual fraud. The court, sitting without a jury, found for plaintiffs and entered judgment in the amount of $104,190.96. We affirm.
The following issues are presented for review by this Court:
1. Was respondents’ action barred by the applicable statute of limitations?
2. Was the District Court’s finding that there was undue influence clearly erroneous?
3. Did the District Court err in the award of punitive damages?
4. Did the District Court err in disallowing personal representative fees and attorney fees paid by the estate of the decedent?
This matter involves a dispute over the distribution of the estate of Alice Kimm. Alice Kimm, a widow, died on February 8,1987, at the age of 85. The respondents in this case, Audrey Flikkema, Winona Vander Molen, and Willemina Van Egmond are all daughters of the decedent. The appellant, Clarence J. Kimm, is the son of the decedent. Decedent had another daughter who is not a party to this action.
The decedent’s will, dated June 23, 1976, provided that her residuary estate should be divided equally between the parties to this action. Further, the will designated respondent Willemina Van Egmond as personal representative. In September 1980, the decedent suffered the first in a series of debilitating strokes. From the time of her first stroke until her death, the decedent was considerably disabled. The District Court found that decedent had fluctuating periods when she could be considered generally mentally competent, but her physical abilities were always limited. During this time period it is uncontroverted that decedent and appellant shared a close and confidential relationship. Shortly after her first stroke, the decedent added a codicil to her will. The codicil changed the personal representative from Willemina to appellant. During this same time period, the District Court found that assets owned solely by the decedent were systematically transferred to the decedent and appellant as joint tenants. At trial, appellant alleged that at the time of these transfers he had no knowledge of the effect of joint tenancy, i.e., that upon the death of one joint tenant, property so owned would pass by operation of law to the surviving joint tenant.
Appellant initiated a probate proceeding following the decedent’s death. Decedent’s will was filed on March 24,1987, and appellant was appointed and issued letters as personal representative on May 22, 1987. In July 1987, one of the respondents requested from appellant an itemized list of the residual monies left in the decedent’s estate. Appellant then sent a note setting forth the various assets which remained and indicating that all three of the respondents would share equally with him in the distribution of these assets. Appellant alleges that at some point after he had sent this note to respondents he learned that as the surviving joint tenant he was not obligated to distribute any of the property. On September 19,1988, appellant filed the inventory and appraisement listing all the assets held jointly by himself and the decedent. Appellant then filed the final accounting, which respondents objected to.
On April 2,1990, respondents filed suit alleging that the appellant had used undue influence and fraud to obtain the bulk of their mother’s estate. Following a nonjury trial, the District Court found in favor of respondents. The court found that appellant had exercised undue influence in obtaining control over the decedent’s assets. As a result of this unjust enrichment, the assets were subject to a constructive trust for the benefit of all four parties equally. Additionally, the court found appellant acted with actual malice and that the acts in question constituted actual fraud. Following a separate hearing on the matter, the court awarded punitive damages. The-final judgment was for $104,190.96, which was to be divided between the three respondents. From the entry of this judgment appellant brought this appeal.
I
Was respondents’ action barred by the applicable statute of limitations?
The District Court in this case decided both factual and legal questions. Prior to addressing appellant’s first issue concerning the statute of limitations it is necessary to set out the appropriate standard of review in this case. On appeal, this Court will not disturb the district court’s findings of fact in a nonjury trial unless they are clearly erroneous. In the Matter of the Mental Health of E.P. (1990), 241 Mont. 316, 787 P.2d 322; Rule 52(a), M.R.Civ.P. Our standard of review of questions of law is simply whether the district corut’s interpretation of the law is correct. Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522. The basis for this standard of review is that no discretion is involved when a tribunal arrives at a conclusion of law. The tribunal either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. This Court will also give due regard to the opportunity of the district court to judge the credibility of the witnesses. In the Matter of the Mental Health of R.J.W. (1987), 226 Mont. 419, 736 P.2d 110.
Appellant alleges the action brought by respondents should have been barred for failing to commence the action within the applicable statute of limitations, which both parties agree was two years, with the cause of action not to be deemed to have accrued until discovery by respondents of the facts constituting the claim. Section 27-2-203, MCA. Additionally, § 27-2-102, MCA, provides in part that:
When action commenced. (1) For the purposes of statutes relating to the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action;
(b) an action is commenced when the complaint is filed.
(2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.
(3) The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if:
(a) the facts constituting the claim are by their nature concealed or self-concealing; or
(b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause. [Emphasis added.] Respondents filed their action on April 2, 1990. Appellant alleges
that respondents either discovered the facts constituting their claim, or in the exercise of due diligence should have discovered the facts constituting their claim, well before April 1988. Therefore, appellant argues that respondents’ filing in April 1990 is untimely pursuant to the two-year statute of limitations.
At trial, appellant elicited testimony from a friend of the respondents in an attempt to show that respondents, through the exercise of due diligence, should have discovered the facts constituting their claim. This witness testified that even prior to the death of their mother, respondents were concerned about the possibility that appellant was exercising undue influence over their mother’s assets. Also introduced at trial was a letter from an attorney advising respondents to “take such steps that might be necessary to protect your interests in your mother’s property.” This letter was dated May 15, 1987, several months after their mother’s death. While this letter clearly did not put respondents on notice of any of the particular facts which constitute their present claim, it might be considered sufficient to require further inquiry on their part.
Respondents testified that prior to receiving the letter from the attorney on May 15,1987, appellant had refused to communicate any information to them regarding their mother’s estate. In July 1987, approximately two months after receiving the letter, one of the respondents requested from appellant an itemized list describing the residual monies left in her mother’s estate. Appellant sent a note setting forth the various assets which remained and specifically indicated that these assets would be shared equally between appellant and the three respondents. At trial, all three respondents indicated that they relied upon this representation. When appellant was asked if there was any reason why respondents should not have relied on this representation, he replied, “probably not.”
On September 19, 1988, appellant filed the inventory and appraisal listing all of the assets of the decedent and indicating that most of the assets were held in joint tenancy with him. Respondents allege that it was not until September 1988, when appellant filed the inventory and appraisal, that they become aware of the facts constituting their claim, and that by fifing in April 1990 they were well within the two-year statute of limitations. Appellant argues reliance must be reasonable and that respondents’ reliance on his representation that they would all share equally in their mother’s estate was not reasonable. Turley v. Turley (1982), 199 Mont. 265, 649 P.2d 434. Further, appellant contends that at the time he made the representation he did not understand that as a joint tenant he alone was entitled to all of the assets jointly held. The District Court specifically found appellant’s testimony in this regard to not be credible.
Respondents point out that as personal representative of the estate appellant had a fiduciary duty to them which included the duty of full disclosure. Skierka v. Skierka Bros., Inc. (1981), 192 Mont. 505, 629 P.2d 214. Not only did appellant not comply with this duty of full disclosure, but he took affirmative steps to conceal from respondents the information necessary to bring their suit. The District Court found that appellant “continuously misrepresented the overall situation to [respondents], leading them to believe each would share equally with [appellant] in settling their mother’s ‘estate’.”
There was conflicting evidence presented at trial as to when respondents either discovered or should have discovered the facts constituting their claim. The District Court Judge, after hearing all of this evidence and weighing the credibility of the witnesses, determined that the action had been timely filed. We hold that the District Court’s finding that respondents’ action was brought within the applicable statute of limitations was not clearly erroneous.
II
Was the District Court’s finding that there was undue influence clearly erroneous?
Appellant argues that respondents did not meet their burden of proof concerning the alleged undue influence and that the District Court’s finding of undue influence is clearly erroneous. This Court, in Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 908, set out the criteria which must be satisfied in order to find undue influence. The five criteria are:
(1) Confidential relationship of the person attempting to influence the testator;
(2) The physical condition of the testator as it affects his ability to withstand influence;
(3) The mental condition of the testator as it affects his ability to withstand the influence;
(4) The unnaturalness of the disposition as it relates to showing an imbalanced mind or a mind easily susceptible to undue influence, and
(5) The demands and importunities as they may affect the particular donor taking into consideration the time, the place, and all the surrounding circumstances.
Christensen, 784 P.2d at 911. Each one of these criteria must be satisfied in order to prove an assertion of undue influence. We must, therefore, apply the evidence in this case to each of the criteria.
There appears to be agreement between the parties that appellant had a confidential relationship with the decedent. The second and third criteria relate to the decedent’s physical and mental condition and whether her condition affected her ability to withstand influence. The District Court, after hearing testimony concerning both the decedent’s physical and mental condition, determined that decedent’s mental condition fluctuated during the time period in question, while her physical condition was continuously limited. The decedent was a widow, elderly, and by all accounts in very poor physical health. Clearly, decedent’s mental and physical condition made her susceptible to influence.
The fourth criteria is the unnaturalness of the disposition as it relates to showing either an unbalanced mind or a mind easily susceptible to undue influence. Decedent’s will provided that appellant and respondents would share equally in her estate. The distribution provided for in the decedent’s will was never changed and is an indication of her intent that the parties to this action would share equally in her estate.
Respondents argue that in this situation the transfer of most of the decedent’s assets to appellant was unnatural. The fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural. In fact, decedent’s will did specifically exclude one of her daughters who is not a party to this action. However, considering the transfers in question in light of the fifth criteria clarifies why the transfers were unnatural. The fifth criteria requires an examination of the time, the place, and all the circumstances surrounding the transfers. In this case, there is a clear intent that the parties to this action were to share equally in the estate. However, several years before the decedent’s death most of her assets were transferred into joint tenancy with appellant. These transfers occurred at a time when appellant was clearly in a position to exercise influence over the decedent. Additionally, all of this occurred at a time, when due to her advanced age and illness, decedent was susceptible to such influence. The District Court’s finding that appellant was unjustly enriched by exercising undue influence is not clearly erroneous. The District Court was correct in concluding that all of the assets coming under the control of appellant as a result of this undue influence were properly the subject of a constructive trust for the benefit of himself and respondents equally.
Ill
Did the District Court err in the award of punitive damages? Section 27-1-221, MCA, provides that “reasonable punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice.” The District Court in this case found that appellant was guilty of both actual fraud and actual malice, and in a separate hearing on the matter awarded punitive damages in the amount of $30,000. Appellant argues that there was no basis for a finding of actual fraud, and therefore, the award of punitive damages was inappropriate. This matter need not be addressed by this Court, as the finding of actual malice, which is uncontested on appeal, is sufficient basis for the award of punitive damages.
Section 27-1-220, MCA, provides that punitive damages may be awarded for the sake of example and for the purpose of punishing a defendant. Section 27-1-221, MCA, sets forth the criteria to be followed by the district court in determining a punitive damage award and requires that the court clearly state the reasons for making the award. The District Court clearly followed the requisite criteria in determining the amount of the punitive damage award. In light of the statutory criteria and the circumstances of this case, we hold the District Court did not err in awarding $30,000 in punitive damages.
IV
Did the District Court err in disallowing personal representative fees and attorney fees paid by the estate of the decedent?
The District Court determined that appellant should be charged with repayment of personal representative fees and attorney fees previously paid by the estate. Apparently this decision was not based on a dispute over the calculation of the fees, but rather based on the court’s conclusion that appellant had breached his trust. The review of fees paid or taken by a personal representative is left to the sound discretion of the District Court. The District Court’s determination concerning fees will not be overturned absent a showing of an abuse of discretion. Estate of Stone (1989), 236 Mont. 1, 768 P.2d 334. The reasonableness of any challenged fee is determined in part by whether the services rendered were beneficial to the estate. Stone, 768 P.2d at 336. In this case the services rendered were not beneficial to the estate. The District Court’s determination concerning the fees was not an abuse of discretion.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and WEBER concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
Hamilton City Mayor James Whitlock appeals from a March 24, 1992, order and declaratory judgment of the Fourth Judicial District Court, Ravalli County, authorizing public disclosure of the “Toole Report” by the Hamilton City Council. On March 27, 1992, District Court Judge Ed McLean stayed enforcement of the order pending appeal. We affirm.
The issues on appeal are:
1. Was the request made by the Citizens to Recall Mayor James Whitlock to order disclosure of the Toole Report barred by the statute of limitations?
2. Was the District Court’s order authorizing the Hamilton City Council to disclose the Toole Report a violation of Mayor WTiitlock’s individual right of privacy?
3. Was the District Court’s order an improper judgment on the pleadings?
Hamilton City Judge Martha A. Bethel filed a complaint with the Montana Human Rights Commission against the City of Hamilton and Mayor Whitlock in June 1990. She claimed she had been sexually harassed and discriminated against by Whitlock. The City Council hired Ken Toole, an independent investigator, to look into Bethel’s allegations and prepare a report for the City Council. Following Toole’s investigation and lengthy negotiations, the City entered into a mediated settlement agreement with Bethel in September 1991. The settlement included a waiver of Bethel’s individual right of privacy in regard to Toole’s findings, payment of her attorney’s fees, and other monetary and nonmonetary considerations. The contents of Toole’s investigatory report (“Toole Report”) were never made public, and Bethel’s complaint against WTiitlock is still pending before the Human Rights Commission.
On December 3, 1991, the Citizens to Recall Mayor James Whit-lock (Citizens Group) filed a complaint in District Court requesting the court to order the City Council to release copies of the Toole Report. The City Council stated in its answer and counterclaim that the report had been kept confidential because Whitlock had invoked his constitutional right of privacy to prevent disclosure of the report’s contents and to keep council meetings regarding the matter confidential and closed. Even though the settlement agreement specifically provided for disclosure of the investigation report, the City feared it would subject itself to a claim for damages for violating an individual’s privacy right if the Council publicly discussed or released Information related to Bethel’s allegations. However, the Council, acknowledging constitutional and statutory provisions requiring open meetings and the public’s right to know, stated its belief that the public’s right to know in this instance clearly exceeded Whitlock’s individual privacy right. Therefore, in its counterclaim, the Council requested a declaratory judgment directing public disclosure of the report and public participation in Council meetings which discussed the investigation.
At the conclusion of a hearing on March 24,1992, the District Court agreed with the City and held that an elected official had no reasonable expectation of privacy when accused of misconduct in office. The court, therefore, concluded Whitlock’s right of privacy did not outweigh the public’s right to know, and authorized release of the Toole Report. On March 27, 1992, enforcement of this bench order was stayed pending Whitlock’s appeal.
I
Was the request made by the Citizens to recall Mayor James Whitlock to order disclosure of the Toole Report barred by the statute of limitations?
Appellant Whitlock initially raises a statute of limitations argument, claiming the Citizens Group is challenging a City Council decision, made at a closed meeting, to keep the Toole Report confidential. Whitlock notes that Montana’s Open Meeting Law requires a suit seeking voidance of such a decision to be made within 30 days of the time the decision was made. Section 2-3-213, MCA. Because the Citizens Group failed to plead that it filed suit within 30 days, Whitlock claims the matter should be remanded to the lower court with an order directing dismissal of the suit, or in the alternative, ordering discovery to determine if the Citizens Group had complied with proper time frames for an Open Meeting Law challenge.
We find this argument without merit. Whitlock concedes, and we agree, that the Open Meeting Law argument is directed only at the Citizens Group, and has no application to the City Council’s request for declaratory judgment on the question of whether the public’s right to know outweighs Whitlock’s privacy interest. Yet Whitlock maintains that because the Citizens Group remains a party in this suit, the statute of limitations argument may still be at least partially controlling.
We disagree. The City Council, as third-party plaintiffs, requested a declaratory judgment which was clearly not barred by a statute of limitations. The District Court’s ruling responded to the constitutional issue raised by the City, and did not address whether a statutory violation of the Open Meeting Law had occurred. Whether the claims raised by the Citizens Group, as the original plaintiffs, were barred by statutory time limitations is not relevant to the decision on appeal.
II
Was the District Court’s order authorizing the Hamilton City Council to release the Toole Report a violation of Mayor Whitlock’s individual right of privacy?
Both the public right to know, from which the right to examine public documents flows, and the right of privacy, which justifies confidentiality of certain documents, are firmly established in the Montana Constitution. Article II, Section 9, of the Constitution defines the right of the public to know as follows:
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Balanced against the public right to know is the right of individual privacy, provided for in Article II, Section 10, of the Montana Constitution: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
We have held that the public’s right to observe the workings of public bodies is not absolute. In The Missoulian v. Board of Regents of Higher Education (1984), 207 Mont. 513, 675 P.2d 962, we stated that the constitutional language providing exceptions to examining documents or observing deliberations requires this Court to:
[Bjalance the competing constitutional interests in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts. [Emphasis in original.]
The Missoulian, 675 P.2d at 971.
This Court has addressed on several occasions the balancing of these competing interests, and admittedly has more than once carefully guarded against public scrutiny of very private and personal matters. See Flesh v. Mineral and Missoula Counties (1990), 241 Mont. 158, 786 P.2d 4; The Missoulian, 675 P.2d 962; Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d 1283. In light of these decisions, Whitlock contends the District Court incorrectly concluded the public’s right to examine the Toole Report clearly outweighed Whitlock’s individual privacy right. However, in the narrow circumstances presented in this case, we disagree, and distinguish this situation from others we have considered.
Whenever the Court must determine whether a privacy interest is protected under the State Constitution, we apply a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and (2) whether society is willing to recognize that expectation as reasonable. Flesh, 786 P.2d at 8; The Missoulian, 675 P.2d at 967; Montana Human Rights Division, 649 P.2d at 1287. We will not engage in a lengthy discussion of the first prong of the two-part test because, in this case, we hold that whether or not Whitlock had an expectation of privacy, that expectation was unreasonable as a matter of law.
There are two important reasons for this conclusion. First, Whitlock is an elected official and as such is properly subject to public scrutiny in the performance of his duties. Our previous decisions have shielded certain personnel matters from public review, and have opened those discussions only to the entity responsible for such things as hiring, disciplinary action, and supervision. When a person is elected to public office, the general public has that responsibility, and it is then their right to be informed of the actions and conduct of their elected officials. In this case, the sexual harassment allegations against Whitlock go directly to the mayor’s, and another government official’s, abilities to properly carry out their duties. Information related to the ability to perform public duties should not be withheld from public scrutiny.
This is not the first time we have suggested that public officials may occupy unique positions in regard to expectations of privacy. In Great Falls Tribune v. Cascade County Sheriff (1989), 238 Mont. 103, 775 P.2d 1267, for example, we held that while police officers have a subjective or actual expectation of privacy relating to disciplinary proceedings against them, that expectation was not one which society recognized as a strong right because “law enforcement officers occupy positions of great public trust.” Great Falls Tribune, 775 P.2d at 1269.
Other states’ courts have similarly recognized that public officials cannot reasonably have as great an expectation of privacy as individuals who are not public servants. In Cowles Publishing Company v. State Patrol (Wash. 1988), 748 P.2d 597, 605, the Washington Supreme Court described a diminished privacy interest when the information sought relates to fitness to perform a public duty. The Alaska Supreme Court has taken the same approach, recognizing that the nature and responsibility of public office opens office holders up to more exacting public scrutiny regarding the performance of their duties. City of Kenai v. Kenai Peninsula Newspapers (Alaska 1982), 642 P.2d 1316; Municipality of Anchorage v. Daily News (Alaska 1990), 794 P.2d 584.
The second reason for our decision relates to the kind of information in question. In our previous decisions, we have protected information such as personnel records or job performance evaluations from public review. State v. Bums (Mont. 1992), 830 P.2d 1318, 49 St.Rep. 353; Montana Human Rights Division, 649 P.2d at 1287-88; The Missoulian, 675 P.2d at 968-70. However, in this case, the Toole Report was the result of an investigation commissioned to explore allegations of misconduct. The Citizens Group is not seeking disclosure of information related to private sexual activity, general performance evaluations, or proceedings where Whitlock’s character, integrity, honesty, or personality were discussed. While Whitlock might reasonably expect privacy in regard to those kinds of matters, society will not permit complete privacy and unaccountability when an elected official is accused of sexually harassing public employees or of other misconduct related to the performance of his official duties.
Once the determination is made as to whether a constitutionally protected privacy interest is at stake, the question is then whether the demands of individual privacy clearly exceed the merits of public disclosure. Since we have found the privacy expectation in this particular situation unreasonable, the answer is clearly no.
The merits of publicly disclosing the Toole Report are substantial. Not only is the public entitled to be informed of the actions and conduct of their elected officials, but in this instance the information sought involves a matter in which the City has already settled with the complainant. Though the settlement was reached without a finding of fault or liability on the part of any party, the City admits it perceived a substantial risk of loss and concluded it was in the best interests of the City to settle the claim. Since public funds were used to settle the dispute and may be used to indemnify Whitlock for his attorney fees, the public is entitled to know the precise reason for such an expenditure. Given the strong considerations in favor of public disclosure, and the fact that the demand of individual privacy is absent in this instance, there is no justification for denying the public the right to review the contents of the Toole Report.
After weighing the competing interests involved, we agree with the Court’s determination that Whitlock’s expectation of privacy is unreasonable. Therefore, we hold that the right of the public to know must be accorded greater weight than Whitlock’s claim of privacy.
Ill
Was the District Court’s order an improper judgment on the pleadings?
Whitlock’s final argument characterizes the District Court’s decision as a judgment on the pleadings because no extrinsic evidence was introduced to treat the decision as a summary judgment ruling. Rule 12(c), M.R.Civ.R He contends, therefore, that if the Court ruled only on the information contained in the pleadings, on review the complaint “is to be construed in the light most favorable to the plaintiffs and its allegations are taken as true.” Kinion v. Design Systems, Inc. (1982), 197 Mont. 177, 180, 641 P.2d 472, 474 (citing Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324). Viewed in this manner, Whitlock argues the District Court’s conclusion was improper and cannot be affirmed.
The City Council maintains the Court did consider matters outside the pleadings and the proper characterization of the Court’s action is one of summary judgment. Since there were no issues of fact to be determined by the Court, the City Council asserts that it was entitled to judgment as a matter of law pursuant to Rule 56(c), M.R.Civ.P., and the court’s ruling should only be set aside if the opposing party can demonstrate that a genuine factual controversy exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191.
After reviewing the record, it is apparent that the court did have before it information in addition to the pleadings. This included Bethel’s affidavit of sexual harassment; an affidavit from the City Attorney verifying that Whitlock received, and therefore was aware of, the contents of the Toole Report; and affidavits from witnesses who were interviewed by Toole, waiving any privacy rights in the information contained in the report. Because the court had before it this information which was not part of the pleadings, we will consider the court’s order as one for summary judgment pursuant to Rule 12(c), M.R.Civ.R
We note that at one point during the proceedings, Whitlock moved for summary judgment in his favor, and urged consideration of some of the above-mentioned documents, admitting they supplemented the pleadings. It would be inconsistent to disregard that same information simply because another party prevailed.
Applying the standard of review for a summary judgment proceeding, we must determine whether there is any genuine issue of material fact in controversy. The material facts in this case are all cm disputed. Whitlock is an elected official. He was accused by another elected official of sexual harassment. The City Council investigated the allegation and settled the other official’s claim based on its investigation. The results of its investigation are included in the Toole Report.
Based on these undisputed facts, the public has a right to know, as a matter of law, what is in the Toole Report. There are no disputed issues of material fact which would preclude the entry of summary judgment.
The District Court’s order and declaratory judgment directing release of the Toole Report as recommended by the Hamilton City Council is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES WEBER, HUNT, and McDonough concur.
|
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] |
JUSTICE HUNT
delivered the opinion of the Court.
Plaintiffs and appellants, Fred G. Carl and Joan A. Carl, husband and wife, appeal from the adverse decisions of the District Court of the Fourth Judicial District, Missoula County. The District Court granted summary judgment to both defendants and respondents, William Chilcote and the City of Missoula (City). We affirm.
There are two issues before the Court:
1. Did the District Court err in granting summary judgment in favor of Chilcote?
2. Did the District Court err in granting summary judgment in favor of the City of Missoula?
This appeal is the latest in a long-running dispute which began more than a decade ago. In the late 1970’s, Carls entered into a contract for the construction of four duplexes in Missoula. The contractor was Paul Campeau. During construction, a mechanic’s lien was filed by M. E. Walters. Walters obtained summary judgment against Campeau and is no longer a party to the controversy. Carls also asserted cross-claims for relief against Campeau in this same proceeding in that there were several substantial and material defects in the duplexes which were left uncorrected by Campeau. On April 27,1981, Carls obtained judgment against Campeau for breach of contract. The District Court ordered that Campeau pay Carls the cost of correcting the defects in the four duplexes, up to the amount of $120,000. Campeau failed to pay for the necessary repairs.
Carls recorded their $120,000 judgment against Campeau in Richland County. Campeau was involved in a joint venture in Richland County with Chilcote. Campeau and Chilcote were constructing and selling residences. Chilcote was in no way involved with the duplexes constructed in Missoula and was not a party to the litigation which resulted in the District Court order of April 27,1981, requiring Campeau to pay for the repairs to the Missoula duplexes.
Carls then moved the District Court for an order to compel Campeau’s compliance with the April 27, 1981, order. On November 4,1981, the District Court entered a supplemental order directing Campeau to make the necessary repairs, subject to supervision by designated architects. In order to insure completion of the repairs, the District Court ordered Campeau to place $60,000 into a trust account. Campeau’s attorney, William Baldassin, was ordered to act as trustee of the trust account. The District Court also required Carls to release the Richland County property from the lien so that Campeau could sell his interest in the property and deposit the $60,000 in the trust account. The District Court’s order of November 4, 1981, did not name Chilcote, nor did the order require or prohibit any conduct on his part.
The Richland County property was sold. Chilcote paid $60,000 to Campeau out of the profits of the joint venture. Chilcote advised Campeau at this time that he had better get the money to Baldassin to deposit into the trust account as the District Court had ordered. Campeau told Chilcote not to worry because he would not do anything to get Chilcote into trouble. Campeau paid $2,650 to Carls, $17,000 to Baldassin, which was deposited into the trust account, and then proceeded directly to Australia.
Upon motion of Carls, the District Court, on August 2,1982, found Chilcote in contempt of court. The District Court concluded that Chilcote had “frustrated the order of this Court and prevented its execution and should be held in contempt of this Court and required to comply with the order ... dated November 4,1981.” On August 10, 1982, the District Court entered judgment against Chilcote in the amount of $40,350, together with costs of suit.
Chilcote appealed and sought a Writ of Review from this Court, consolidating his challenges to the contempt order and the money judgment. In Walters v. Campeau (1983), 205 Mont. 448, 668 P.2d 1054, this Court reversed both the contempt order and the money judgment entered against Chilcote. In Walters, we held that Chilcote was under no obligation to insure that the $60,000 was placed into the trust account. Chilcote had not been a party to any of the prior proceedings. Neither the District Court’s order of April 27, 1981, nor the supplemental order of November 4, 1981, named Chilcote. The orders neither required nor prohibited any conduct on the part of Chilcote. Chilcote was aware that Campeau had been ordered to pay $60,000 into the trust account and Chilcote even encouraged him to do so. However, Chilcote did not have any affirmative duty to insure the money was deposited. Under these circumstances, we concluded that Chilcote had not interfered with the process or proceedings of the District Court. The finding that Chilcote was in contempt of court and the money judgment entered against him were reversed.
On May 20, 1983, Carls filed suit against William Chilcote, Security Abstract Company, Richland National Bank, and the City of Missoula. Richland National Bank was granted summary judgment in 1984 and the District Court granted Security Abstract Company’s motion for summary judgment in 1986. Carls filed an interlocutory appeal of the summary judgment granted to Security Abstract Company, and in Carl v. Chilcote (1987), 226 Mont. 260, 735 P.2d 266, this Court affirmed the District Court’s decision.
The case continued against Chilcote and the City. Chilcote and the City had previously made motions for summary judgment which were denied. However, the District Court, in separate orders in January 1992, granted both Chilcote’s and the City’s motions for summary judgment. Carls appeal from the February 6, 1992, entry of final judgment.
I
Did the District Court err in granting summary judgment in favor of Chilcote?
A district court judge may grant summary judgment when:
[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of showing that there is a complete absence of any genuine issue of material fact. 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 v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. Summary judgment is never an appropriate substitute for a trial if a factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.
Carls allege that genuine issues of material fact remain and that the District Court erred in granting summary judgment to Chilcote. Carls’ cause of action against Chilcote sought damages for interference with a contract. On appeal, Carls argue that the District Court granted summary judgment in favor of Chilcote on the basis of res judicata. Carls contend that the previous decision of this Court in Walters does not bar the present action.
However, a careful reading of the District Court’s opinion and order granting summary judgment to Chilcote reveals that the District Court did not rely upon the doctrine of res judicata. The District Court did refer to the facts as set out in Walters, but did not conclude that the Walters decision barred the present action. To the contrary, prior to ruling on Chilcote’s motion for summary judgment the District Court allowed Carls the opportunity to present any additional evidence they might have which would preclude summary judgment in favor of Chilcote. The District Court, after reviewing all the uncontested facts, found no genuine issues of material fact remaining and granted summary judgment to Chilcote. The District Court did not grant summary judgment based on the doctrine of res judicata. In granting summary judgment, the District Court stated that:
To date, this Court has not been presented with evidence which refutes the facts as stated in Walters. At the January 15, 1992 hearing counsel for [Carls] stipulated that he had no additional evidence to present to a jury than is already in the Court file. Under the stipulated set of facts, and in light of the Supreme Court’s rulings in Walters and Carl and Carl’s admissions (attached to this Opinion and Order), there are no material issues of fact still to be determined by a jury and summary judgment is proper under Rule 56, M.R.Civ.R Absent evidence that Chilcote had an affirmative duty to pay the $60,000 to the Baldassin trust account or that Chilcote intentionally prevented the funds from going into the trust account, Carls have not proven that Chilcote should be held liable for the actions of Campeau.
The uncontroverted evidence in this case, especially Carls’ answers to Chilcote’s request for admissions, clearly shows that Chilcote was entitled to summary judgment as a matter of law. Chilcote was not named in either of the District Court’s orders. The orders did not require or prohibit any conduct by Chilcote. Specifically, Chilcote was not prohibited in any way from paying over Campeau’s share of the profits of the joint venture directly to Campeau. There are no facts indicating that Chilcote in any way prevented or frustrated Campeau from depositing the money in the trust account. The uncontroverted evidence was that Chilcote encouraged Campeau to deposit the money. The District Court’s grant of summary judgment in favor of Chilcote is affirmed.
II
Did the District Court err in granting summary judgment in favor of the City of Missoula?
Prior to beginning construction, Carls applied for and obtained building permits from the City. Carls brought suit against the City contending that the City, through its building department employees, failed to use due care in supervising and inspecting the construction and in insuring that the construction was completed according to the City’s building codes. The District Court granted summary judgment in favor of the City on the grounds that the applicable statute of limitations had run.
The construction at issue in this case was performed in 1977 and 1978. As previously mentioned, Carls cross-claimed against Campeau in April 1980. The basis of this cross-claim was that Carls alleged they were entitled to damages for defects in the construction of the duplexes. On June 11,1980, Carls acknowledged in answers to interrogatories and requests for admissions that they were aware of various defects in the construction. At the January 1981 trial, Carls presented testimony from a structural engineer as to the defects. The District Court in this case determined that Carls became aware of the defects in April 1980 and certainly were aware of the facts constituting their claim by the time of trial in January 1981. We agree.
In resistance to the City’s motion for summary judgment, Carls presented several affidavits in support of their contention that they did not become aware of their claim until the fall of 1981. The fact that these particular affiants did not realize that Carls had a possible claim against the City is irrelevant. Section 27-2-102, MCA, provides in part that:
(2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.
(3) The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered ....
In this case, the facts constituting the claim had clearly been discovered by Carls. The statute of limitations began to run at that time, notwithstanding the fact that Carls may not have realized they had a possible claim against the City. Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 713 P.2d 992.
The statute of limitations began to run, at the very latest, as of the date of trial in January 1981. Carls filed suit against the City on May 20, 1983, more than two years following the trial. The District Court concluded that the appropriate statute of limitations in this case was two years pursuant to Section 27-2-207, MCA, and therefore, Carls’ action was barred. Section 27-2-207, MCA, provides that:
Within 2 years is the period prescribed for the commencement of an action for:
(1) injury to or waste or trespass on real or personal property....
Carls contend, relying upon Section 27-2-208, MCA, that the statute of limitations for commencing the action was ten years. Section 27-2-208, MCA, relates to actions for damages arising out of work on improvements to real property and states in part that:
(1) Except as provided in subsections (2) and (3), no action to recover damages (other than an action upon any contract, obligation, or liability founded upon an instrument in writing) resulting from or arising out of the design, planning, supervision, inspection, construction, or observation of construction of or land surveying done in connection with any improvement to real property shall be commenced more than 10 years after completion of such improvement.
(5) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action.
In discussing this statute, this Court recently stated that:
Taken by its four comers, Section 27-2-208, MCA, is not in itself a statute of limitation. Under subsection (5) of the statute, the ten-year period does not extend any other period prescribed by the laws of this state for bringing any action. What Section 27-2-208, MCA, provides is that any other applicable statutes of limitation still remains applicable but in no event shall any cause be commenced more than ten years after the completion of the improvement. Section 27-2-208, MCA, is not in essence a statute of limitations, but rather a statute of repose which prevents any cause of action relating to an improvement to real property from arising after a ten year period. Thus, if late discovery of the facts were applicable in this case to extend the time for commencement of the action, or, if the circumstances which extend the periods of limitations set out in Sections 27-2-401, and -409, MCA, were involved, the specific applicable limitations periods would be extended, but in no event longer than ten years after completion of the improvement.
Ass’n of Unit Owners v. Big Sky of Montana (1990), 245 Mont. 64, 80-81, 798 P.2d 1018, 1028.
Carls argue that in Reeves v. Ille Electric Co. (1976), 170 Mont. 104, 551 P.2d 647, this Court interpreted Section 27-2-208, MCA, as providing for a ten-year statute of limitations, contrary to the holding of Big Sky. The issues in Reeves involved several constitutional challenges to the statute. The Court in Reeves did not hold that the statute provided for a ten-year statute of limitations. The District Court correctly applied Section 27-2-207, MCA, in this instance in determining that Carls’ action was barred.
Finally, Carls argue that based upon the issuance of building permits, their claims against the City are also contractual in nature and that the statute of limitations for contracts found at Section 27-2-202, MCA, should apply. The City contends that the question of a contractual relationship is not properly before this Court. In 1990, the City was granted summary judgment in this case. The District Court based this grant of summary judgment on several grounds, including the determination that no contractual relationship existed. Carls appealed the District Court’s grant of summary judgment. Upon motion of Carls, the matter was not considered on appeal, but was remanded to the District Court for reasons unrelated to the issues now on appeal. The City argues that Rule 4(c), MR.App.R, requires the notice of appeal to “designate the judgment, order or part thereof appealed from” and that Carls did not appeal from the summary judgment entered in 1990. Carls’ notice of appeal only designates the summary judgment entered in January 1992 as the subject matter of their appeal. The issue of a contractual relationship was not raised in connection with the January 1992 summary judgment. Additionally, Rule 2(a), M.RApp.P., provides that:
Upon appeal from a judgment in a civil case, the court may review the verdict or decision, and any intermediate order or decision excepted or objected to within the meaning of Rule 46 of the Montana Rules of Civil Procedure, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken. [Emphasis added.]
Carls not only failed to designate the 1990 summary judgment order in their notice of appeal, but the 1990 summary judgment was an order from which an appeal was available. This Court cannot, on appeal from the judgment, review an order from which an appeal could have been taken. Great Falls Meat Co. v. Jenkins (1906), 33 Mont. 417, 84 P. 74. The question of a contractual relationship is not properly before the Court. The District Court’s grant of summary judgment to the City is affirmed.
The City also cross-appeals from a 1985 order of the District Court denying the City’s motion for summary judgment based on the public duty doctrine. Because we are affirming summary judgment in favor of the City on statute of limitations grounds, it is not necessary to address this issue raised by the City as a bar to Carls’ action.
JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.
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JUSTICE HUNT
delivered the opinion of the Court.
Appellant Tom Haskins was convicted by a jury on four counts of criminal sale of dangerous drugs on November 27, 1989, in the Twentieth Judicial District Court, Lake County. He appeals from those convictions.
We affirm.
Appellant raises the following issues on appeal:
1. Did the District Court abuse its discretion by not granting a trial continuance?
2. Did the outrageous conduct of undercover officer Nelson require a reversal of the convictions?
3. Did the District Court abuse its discretion by denying appellant’s motion for a directed verdict?
4. Did the District Court abuse its discretion by not granting appellant’s motion for a new trial?
5. Did the District Court abuse its discretion in not granting immunity to appellant’s witnesses?
6. Did the District Court abuse its discretion in limiting appellant’s scope of cross-examination of Nelson?
7. Did the District Court abuse its discretion in not allowing appellant to call Martin Cramer as an expert witness?
8. Was undercover officer Nelson competent to testify?
9. Did the State knowingly use peijured testimony?
10. Should appellant’s conviction be reversed because his conviction was based solely upon the testimony of an undercover officer who was accountable for the same conduct for which appellant was convicted?
11. Did the State fail to provide appellant with exculpatory evidence?
12. Did the Confederated Salish and Kootenai Tribes exceed its jurisdiction in the investigation and prosecution of appellant and its employment of under-cover officer Nelson?
13. Does cumulative error by the District Court warrant a new trial?
In September 1988, Robert Nelson was hired by the Confederated Salish and Kootenai Tribes (“the Tribe”) as an undercover officer for the Flathead Tribal Police Department. He was to infiltrate the drug scene in Lake County and the Flathead Reservation, gain the confidence of drug users, make purchases of illegal drugs, and gather information on major drug dealers.
Nelson assumed the identity and alias of “Biker Mike” Harris, a rough, crude drifter who drove a motorcycle, wore black leather clothing, and spent his time “hanging out” at bars. While in this role, Nelson made three separate drug buys from appellant.
The first “buy” occurred on December 6, 1988. Nelson was at the Smokehouse Bar in Poison when appellant approached him and asked if he wanted to buy an eighth of an ounce of marijuana for $25. Nelson bought the bag of marijuana from appellant, left the bar, marked and secured the evidence, and delivered the marijuana later that evening to Dave Morigeau, a criminal investigator for the Flathead Tribal Police Department who was Nelson’s contact officer.
Another “buy” transpired on December 10, 1988, at the Smokehouse Bar when appellant offered to sell Nelson three tablets of Valium for a dollar. Nelson purchased the drugs from appellant and again delivered them the next evening to Detective Morigeau.
The third “buy” occurred once again at the Smoke-house Bar on December 13, 1988. Nelson agreed to purchase another eighth of an ounce of marijuana from appellant. Appellant stated that he did not have any marijuana with him, but that his wife Sherry would bring the drug with her when she came to the bar later in the evening. Nelson witnessed the appellant’s wife enter the bar and give something to appellant. Appellant then approached Nelson and gave him some marijuana. Nelson delivered the sub-stance to Detective Morigeau on December 15, 1988.
The last transaction occurred on January 22, 1989. Appellant had borrowed $10 from Nelson two days earlier and agreed to pay Nelson back with some Darvon and Darvocet pills. This occurred in downtown Poison. Nelson delivered the pills to Detective Morigeau later in the evening. Apparently, a few weeks later, Nelson’s cover was “blown” and his effectiveness as an undercover agent in the drug community ceased.
On April 11, 1989, the Lake County Attorney filed an information charging appellant with four counts of criminal sale of dangerous drugs. After several continuances, trial commenced on November 20, 1989, and on November 27, 1989, the jury found appellant guilty on all four counts. On December 20, 1989, appellant was sentenced to four consecutive prison terms of 20 years, with 15 years suspended for each term. The court entered its written judgment and sentence on December 21,1989.
On December 27, 1989, appellant filed a motion for a new trial which was denied by the District Court on February 8, 1990. On March 7, 1990, appellant filed his notice of appeal. On February 7, 1991, this Court ordered that the appeal be stayed and the case remanded to the District Court for its consideration of a second motion for a new trial based on newly discovered evidence which was filed by appellant while the appeal was pending. An evidentiary hearing was held on April 29, 1991, and on June 12, 1991, the court denied the motion. Appellant appeals from this order.
At the outset, the State contends that several issues raised by appellant are not properly before this Court because appellant failed to file a timely appeal pursuant to Rule 5(b), M.R.App.P. The State acknowledges that appellant’s appeal was timely with respect to the District Court’s denial of his first motion for a new trial, entered on February 8, 1990. However, the notice is not timely with respect to the judgment. We have stated that this Court is without jurisdiction to hear an appeal where notice of an appeal is filed more than 60 days following the entry of judgment. State ex rel. Graveley v. District Court (1978), 178 Mont. 1, 582 P.2d 775. We conclude that the proper focus of this appeal should be limited to the District Court’s denial of appellant’s motions for new trial, and that we will only discuss the issues raised in those motions. There-fore, this Court will not discuss issues 7, 8, 10, 12, and 13.
I.
Did the District Court abuse its discretion by not granting a trial continuance?
When reviewing a denial of a motion for continuance, this Court determines whether the district court abused its discretion. State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983. Motions for continuances are to be addressed at the discretion of the district court and are to be considered in light of the diligence shown by the movant. Section 46-13-202(3), MCA.
In this case, appellant requested a third trial continuance on the grounds that the transcripts of the suppression hearings in a related criminal case, and the report of the private investigator, had not been provided to him and would not be available in time to review and conduct any meaningful investigation into the conduct of undercover officer Nelson.
Defense counsel had approximately five months between the time of appointment and the time of trial to prepare a defense. The District Court had granted two previous continuances on behalf of the defense. Appellant has not shown that even with due diligence he would not have been able to obtain the information in the special investigation report prior to trial by either reinterviewing Nelson or interviewing the private investigator. Nor did the appellant file an affidavit showing the materiality of the evidence expected to be obtained during the continuance. State v. French (1988), 233 Mont. 364, 760 P.2d 86. We hold that the District Court did not abuse its discretion in denying appellant a third trial continuance.
II.
Did the outrageous conduct of undercover officer Nelson require a reversal of the convictions?
Appellant raises two subissues under this argument. First, appellant contends that Nelson engaged in various illegal activities while working as an under-cover agent, and as a result, appellant’s conviction should be overturned. Second, appellant contends that as a result of Nelson’s felony conviction in the state of Washington approximately 20 years ago, Nelson was ineligible to be hired by the Tribe and Lake County as a law enforcement officer.
The United States Supreme Court has recognized that there may come a day when:
[T]he conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.
United States v. Russell (1973), 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366.
The existence of police misconduct as a violation of due process is a question of law for the court to decide. United States v. Ramirez (4th Cir. 1983), 710 F.2d 535, 539. As a defense, it is a close relative to entrapment and is usually invoked where involvement of under-cover agents and Informers in contraband offenses reaches a point as to completely prevent a conviction of a predisposed defendant as a matter of due process. Ramirez, 710 F.2d at 539. Although the due process defense is potentially broad, it is limited. Ramirez, 710 F.2d at 539. The protection of the Due Process Clause of the Fifth Amendment comes into play only “when the Government activity in question violates some protected right of the defendant.” Hampton v. United States (1976), 425 U.S. 484, 490. The Hampton court concluded that:
If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provision of state or federal law.
Hampton, 425 U.S. at 490, 96 S.Ct at 1650.
In this instance, appellant has failed to show how Nelson’s alleged illegal activities violated appellant’s constitutional rights relating to the crimes charged. Appellant was not involved in any of the incidents during which Nelson may have violated the law. The Lake County Attorney properly filed misdemeanor complaints against Nelson for shooting from or across a road or highway right-of-way and knowingly purchasing alcohol for a person under 21 years of age. Appellant also contends that Nelson’s prior felony conviction constitutes outrageous conduct.
In 1974, Nelson pled guilty to a charge of grand larceny in the state of Washington. He later petitioned and received an order of dismissal. The order of dismissal states that Nelson was permitted to withdraw his guilty plea, that the plea of guilty was not entered, and that the cause was dismissed. The order also provides that Nelson was released from all penalties and disabilities resulting from the filing of the charge. In 1983, standard background criminal investigations for hiring conducted by the Montana Department of Justice revealed no criminal record. Subsequent checks in 1989 and 1991 also showed no criminal history for Nelson. Nelson had worked for the Washington police and the Drug Enforcement Agency. Lake County and the Tribe were fully justified in relying upon the absence of any criminal record in hiring Nelson.
In addition, appellant knew of the felony conviction before trial commenced. The State filed a motion in limine to preclude any evidence of Nelson’s criminal history. In his brief, appellant cites to various federal statutes and regulations regarding hiring. They are not applicable. Nelson was hired by the Tribe and paid from tribal funds. As a federal judicially recognized sovereign nation, the Tribe has its own inherent hiring authority and Nelson was properly represented to the jury as a tribal officer. We hold that the conduct of undercover officer Nelson does not warrant a reversal of the conviction.
III.
Did the District Court abuse its discretion by denying appellant’s motion to dismiss?
At the close of the State’s case, appellant moved for a directed verdict which the District Court denied. Section 46-16-403, MCA (1989), provides that a district court may dismiss an action against a defendant when:
[A]t the close of the state’s evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant.
We have construed this statute to mean that “a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict.” State v. Christofferson (1989), 238 Mont. 9, 11, 775 P.2d 690, 692. A directed verdict is warranted if reasonable men could not conclude from the evidence taken in light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt. State v. Laverdure (1990), 241 Mont. 135, 138, 785 P.2d 718, 721. The decision to direct a verdict lies within the sound discretion of the district court and we will not overturn such a decision unless an abuse of discretion is shown. Christofferson, 775 P.2d at 692. Appellant argues that Nelson’s testimony was so inherently incredible that no reasonable person ought to accept it as true. Appellant also argues that his alibi witnesses established that he was not at the alleged crime scene on January 22, as Nelson testified, but was judging a pool tournament. We point out that if evidence conflicts it is well within the province of the jury to resolve the dispute.
In this instance, Nelson’s testimony relating to appellant’s involvement in the crimes charged was consistent. The jury chose to believe Nelson, not appellant’s alibi witnesses. We hold that the District Court did not abuse its discretion in denying appellant’s motion for a directed verdict.
IV.
Did the District Court abuse its discretion by not granting appellant’s motion for a new trial?
To determine whether a new trial is warranted on the basis of newly discovered evidence, this Court established three criteria which must be met:
1. The evidence must have come to the knowledge of the applicant since the trial;
2. That it is not through want of diligence that it was not discovered earlier;
3. That it is so material that it would probably produce a different result upon another trial.
State v. DeMers (1988), 234 Mont. 273, 278, 762 P.2d 860, 863-64. The granting and denying of a new trial rests within the sound discretion of the district court and this Court will not overturn that decision unless the district court abuses its discretion. DeMers, 762 P.2d at 864. In this instance, appellant claimed that upon receiving the investigator’s report after the trial, he only then discovered that Nelson had a prior felony conviction affecting his officer status. However, the record reveals that appellant knew of the felony conviction as early as August 9,1989. In addition, the prior felony conviction became the subject of a pretrial motion in limine. By exercising due diligence through interviewing Nelson for a second time, or through interviewing the investigator, appellant could have discovered Nelson’s felony conviction. Moreover, the discovery of the conviction was not material to the case and would not have affected the outcome. We hold that the District Court did not abuse its discretion in denying appellant’s motion for a new trial.
V.
Did the District Court abuse its discretion in not granting immunity to appellant’s witnesses?
Section 46-15-331, MCA (1989), states that the district court, upon the request of the prosecution or defense counsel, “may require a person to answer any question or produce any evidence that may incriminate him.” It is at the discretion of the district court to grant immunity to counsel’s witnesses.
In this instance, appellant requested that the District Court grant immunity to 16 witnesses. The court denied the motion, but stated that it would not compel incriminating testimony. Appellant offered no proof concerning the testimony he expected to elicit from the witnesses. He only explained to the corut that “a lot of witnesses” would testify about incriminating matters and would refuse to testify without immunity concerning Nelson’s activities during the undercover investigation. The record shows that the corut was given almost no information regarding the testimony of appellant’s witnesses. Even with the denial, eight of appellant’s witnesses testified concerning Nelson’s, as well as their own, use of marijuana during the investigation. We hold that the District Court did not abuse its discretion in denying immunity to appellant’s witnesses.
VI.
Did the District Court abuse its discretion in limiting appellant’s scope of cross-examination of Nelson?
In its order on the motion in limine, the District Court ruled that appellant was prohibited from introducing Nelson’s criminal history or record, specifically including the 1974 felony conviction in Washington. The District Court permitted appellant to introduce evidence of Nelson’s alleged criminal activities and wrongful conduct during the time period relevant to the charges against appellant. Appellant contends that he was denied his right to confront and cross-examine witnesses. Specifically, he argues that he was not allowed to question Nelson on his prior criminal conviction, on Nelson’s relationship with appellant’s wife, and Nelson’s criminal acts outside the time frame established by the court.
Rule 609, M.R.Evid. (1989), states that “[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible.” We have upheld this prohibition because of the inherent prejudicial effect of a witness’s criminal history on the jury’s deliberative process and its low probative value regarding the credibility of a witness. Sloan v. State (1989), 236 Mont. 100, 104-05, 768 P.2d 1365, 1367-68.
Appellant also contends that the court overly restricted his cross-examination relating to Nelson’s relationship with appellant’s wife as a possible motive for Nelson’s accusations against appellant. At trial, defense counsel did ask Nelson whether he had “hit on” or propositioned appellant’s wife. Nelson stated that he had not. The State objected on relevancy grounds to appellant’s next question concerning the proposition, and the objection was sustained by the court.
The District Court afforded appellant a threshold level of inquiry in his effort to present evidence of bias or motive to testify falsely. State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455. With the exception of one witness’s reference that Nelson would be cute or fresh to women, nothing in the record indicates that this line of questioning was based upon fact. Defense counsel did not even question appellant’s wife, Sherry Haskins, about the alleged proposition when she testified for the defense. Rule 402, M.R.Evid., allows the district court to exclude irrelevant evidence, and in this instance the District Court properly limited defense counsel’s speculative inquiry into this area.
Finally, appellant argues that the District Court did not permit him to question Nelson about his use of pills or the extent of Nelson’s efforts to stay in character and protect his cover. These questions were asked during recross-examination. The State objected on the basis that the questions went beyond the scope of redirect, and the District Court sustained the objection. Rule 611, M.R.Evid. (1989), grants the district court discretion to limit questions on recross-examination to those new matters brought out during redirect. We hold that the District Court was well within its discretion to limit appellant’s scope of cross-examination of Nelson.
As a result of our holding above, we conclude that the State did not knowingly use perjured testimony from Nelson, or that it withheld exculpatory evidence.
We affirm.
JUSTICES HARRISON, McDONOUGH, TRIEWEILER and WEBER concur.
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JUSTICE WEBER
delivered the Opinion of the Court.
Plaintiff, Jessica Moralli, brought a negligence action against Lake County, Montana in the Twentieth Judicial District Court, Lake County, Montana. Lake County contended that Ms. Moralli negligently caused her own injuries. A jury found that Lake County was 70% negligent and that Ms. Moralli was 30% negligent. Defendant appeals from the judgment and order denying its motion for judgment notwithstanding the verdict. We affirm.
The issues presented for review are as follows:
1. Whether the District Court erred in denying Lake County’s motion for directed verdict.
2. Whether the District Court erred in admitting evidence of medical expenses without proper foundation.
3. Whether the District Court erred in refusing to instruct on premises liability.
4. Whether plaintiff’s counsel’s improper closing arguments require a reversal of the jury’s verdict.
5. Whether there is sufficient credible evidence to support the jury’s verdict.
Jessica Moralli pled guilty to criminal charges arising from a hit-and-run accident in Poison, Montana in July of 1988 and was sentenced to serve sixteen days in the Lake County jail. She served eight consecutive days following her arrest and was allowed to finish the remaining eight days of the sentence on weekends. She served two of these days on September 6 and 7, 1988. All ten days were served without incident in a women’s cell with a bathroom which included a full-length shower curtain. Each time, Ms. Moralli was given a two-piece suit and a pair of slippers to wear while she was in jail.
The remaining six-day sentence was subsequently amended, only requiring Ms. Moralli to serve the four days from September 13 to September 16, 1988. When Ms. Moralli returned to the Lake County jail on September 13,1988 to serve the four days, jail personnel placed her in a different cell. Ms. Moralli requested footwear; none was given to her. She then requested that she be allowed to wear her own socks or her own tennis shoes. Jail personnel denied this request also.
Ms. Moralli and another witness testified that the cell Ms. Moralli was placed in had a shower with a shower curtain ending eighteen inches above the floor. Ms. Moralli testified about the accident and her actions just prior to the accident as follows: She and another inmate both took showers, after which Ms. Moralli returned to the bathroom to use the toilet and to comb her hair. By this time, up to one-half inch of water had accumulated on the floor of the bathroom. As Ms. Moralli rose from the toilet and pulled up her pants, the wet pant legs stuck to her heels and her feet slipped out from under her. At the same time she arose from the toilet she twisted her body away from the open doorway for privacy reasons. As she slipped, she fell backwards, hitting her head, shoulders and back against the wall.
The testimony indicates that Ms. Moralli’s cellmates came to her assistance when she fell. They notified the jailer on duty, Mr. Fair-child, who did not respond. Hours later, a second jailer, Mr. Emerson, after being informed of the fall, removed Ms. Moralli from her cell and transferred her to a holding cell while he made telephone calls to the Poison city judge to arrange for her release from confinement and to Moralli’s boyfriend to arrange for a ride from the jail. Emerson advised Moralli’s boyfriend to take her to the hospital because she was injured. Moralli saw a physician the next morning.
Ms. Moralli filed a claim against Lake County for injuries suffered from the fall in its jail. At the time she fell, she was barefoot. The floor surface was smooth concrete. Ms. Moralli claimed that her bare feet, the soapy water from the shower leaking onto the bathroom floor, and the smooth concrete surface all combined to create a dangerous condition resulting in her injuries and that Lake County was negligent in operating the facility. Since the time of the injury in the Lake County jail, Moralli claims she has suffered from the injury and incurred over $5,000 in medical expenses. At trial, Moralli presented testimony from her chiropractor that she would continue to incur medical expenses during her lifetime relating to the 1988 injury. The jury returned a verdict for Ms. Moralli with damages totalling $35,400.00. Judgment was entered for $24,780.00 plus interest and costs because the jury determined that Moralli was 30% negligent.
I.
Did the District Court err in denying Lake County’s motion for a directed verdict?
Lake County contends that there was no credible evidence to warrant submitting the case to a jury. Amotion for a directed verdict should only be granted when there is a complete absence of any evidence to warrant submission to the jury and all factual inferences must be viewed in the light most favorable to the nonmoving party. Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325. A directed verdict for the defendant is not proper if reasonable persons could differ as to the conclusions drawn from the evidence when considered in a light most favorable to the plaintiff. Weber v. Blue Cross of Montana (1982), 196 Mont. 454, 464, 643 P.2d 198, 203.
Issue I and Issue V are so interrelated that it is best to discuss them together. Issue V questions the sufficiency of the evidence to support the jury’s verdict. When there exists in the record substantial evidence to support the jury’s verdict, we will sustain a district court denial of a motion for a directed verdict. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 277-78, 783 P.2d 1340, 1347-48. In short, a verdict is binding upon this Court if it is based upon substantial evidence, although the evidence may appear inherently weak. Our review of a jury verdict is very narrow in scope. Substantial evidence need only be evidence which from any point of view could have been accepted by the jury as credible. Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 164, 789 P.2d 567, 572.
In order to sustain a claim of negligence, Moralli must present substantial evidence to prove that (1) the County owed a duty to Moralli, (2) the County breached that duty, (3) the breach was the actual and proximate cause of Moralli’s injury, and (4) that damages resulted.
1. What duty did Lake County owe to Moralli?
Lake County had a duty to exercise reasonable and ordinary care for the life and health of the prisoner, to keep her safe and protect her from unnecessary harm. Lake County also had a duty to render medical aid when necessary, treat the prisoner humanely and refrain from oppressing her. Pretty On Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60-61. Clearly, Lake County had a duty to provide Moralli with a reasonably safe accommodation during the period of her incarceration.
2. Did Lake County breach this duty?
Ms. Moralli presented evidence that the county knew or should have known that the condition of the bathroom floor was far from ideal. Another inmate had fallen there within the previous month. Pretty On Top requires only reasonable and ordinary care for the life and health of the prisoner. Pretty On Top, 597 P.2d at 60. However, evidence presented by Ms. Moralli indicates that the condition of the floor in the bathroom was slippery and that jail personnel knew the floor was slippery. Ms. Moralli also presented evidence that she asked for footwear and when that request was denied, she asked if she could keep her own footwear and that request also was denied. The evidence presented by Ms. Moralli also indicates that the county provided no medical assistance although the jailer was aware that Ms. Moralli had fallen in the cell’s bathroom and that he later released her, advising her boyfriend to take her to the hospital. At that time, Moralli still had two days of her sentence to serve. We conclude that there is substantial evidence from which the jury could properly have found that Lake County breached its duty.
3. Did the County’s conduct cause Moralli’s injury?
A jailer is not liable for injury resulting from an inmate’s intentional conduct. Pretty On Top, 597 P.2d at 61. This issue often arises in cases which result from a suicide, as in Pretty On Top. Lake County contends that Ms. Moralli acted intentionally by entering the bathroom, that she was aware of the floor condition at that time and should have been careful- — -that her own negligence caused her injury. Lake County also contends that the proximate cause of her injury was when she hooked her pant leg on her heel. Again, viewing the evidence in a light most favorable to Ms. Moralli, the jury could have found that it was foreseeable that the floor would become wet and slippery from inmates’ showers, that footwear or some other protection was a necessary precaution against slips and falls, and that the inmates might need to use the bathroom facility when the floor was wet with standing water. Ms. Moralli’s intentional conduct was insufficient to break the chain of causation.
We conclude that the county has failed to demonstrate a complete absence of evidence to warrant submission of the case to the jury. We hold that the District Court properly denied the County’s motion for a directed verdict.
We farther conclude that the record contains substantial evidence to support the jury’s verdict. We therefore hold there was sufficient credible evidence to support the jury’s verdict.
II.
Did the District Court err by admitting evidence of medical expenses without proper foundation?
Lake County contends that Ms. Moralli provided no foundation that the expenses reflected on Exhibit 3, a summary of medical expenses resulting from the accident, were related to the slip and fall in the Lake County jail. In Cain v. Stevenson (1985), 218 Mont. 101, 706 P.2d 128, the appellant made a similar argument. We held that a claimant is competent to testify as to his past and present condition, but that his testimony, standing alone, is not sufficient to establish cause for those aspects of an injury not apparently related to the accident in question. Cain, 706 P.2d at 131. We noted that:
not all injuries require medical expert testimony to prove permanency or causation. (It has been held that medical testimony is not necessary to prove permanent injuries or their cause where) the nature of the injury is such that laymen can plainly see, or infer from the injury, its cause and that it will be permanent, such as the loss of a limb. Respondent’s back injury was not such an injury.
Cain, 706 P.2d at 131.
In Cain, we held that inadequate proof of permanent injury required a reversal, but only on the issue of damages. Cain, 706 P.2d at 131-32. Moralli’s testimony relating to past and present condition was competent under Cain, but she could not testify to future damages. That required qualified medical testimony from an expert witness. Dr. William F. Risch, Moralli’s treating chiropractic physician for the six-month period prior to trial, testified to his history, observations and treatment and gave his opinion that more likely than not her injury was permanent.
A plaintiff is not required to establish the causal connection between the accident and her injuries with certainty; she merely must do so with reasonable certainty or by a preponderance of the evidence. Allers v. Willis (1982), 197 Mont. 499, 505, 643 P.2d 592, 595-96. Moralli testified that she had been free of symptoms from a prior injury for five years before this injury. Together, Moralli’s testimony relating to her past and current condition and Dr. Risch’s testimony relating to her current and future condition were sufficient foundation for medical expenses.
We hold that the District Court did not err in admitting evidence of medical expenses.
III.
Did the District Court err in refusing to instruct the jury on premises liability?
Lake County proposed and the District Court refused the following jury instruction:
The defendant has the duty to exercise ordinary care to keep his premises reasonably safe for all persons who foreseeably might come upon them, and to warn such persons of any hidden danger upon such premises.
Neither of the parties contended that there was a hidden danger lurking on the premises. Rather, the County primarily contended that the condition was known or obvious and that Ms. Moralli was contributorily negligent by making use of the bathroom in such manner. While the above instruction is a correct statement of the law in Montana, it is inappropriate in a case such as this one where there is no hidden danger on the premises.
Lake County also proposed and was refused two other instructions. Proposed instruction 16 provided:
The defendant is not liable to plaintiff for physical harm caused by any activity or condition of the jail facility whose danger is known or obvious to the plaintiff, unless defendant should have anticipated the harm despite such knowledge or obviousness.
This instruction, from Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317, relates to nonliability of a business owner to a business invitee for conditions which are known or obvious to the plaintiff and is inappropriate for the facts of this case.
Proposed instruction 17 states that a landowner is entitled to assume that the plaintiff will see and observe that which would be obvious through the reasonably expected use of an ordinary person’s senses. Ms. Moralli freely admitted that she saw the water on the floor. She had no choice but to enter the bathroom. This instruction is also inapplicable to the facts of this case.
Section 25-7-301(5), MCA, provides:
... In charging the jury, the comb shall give to it all matters of law which the court thinks necessary for the jury’s information in rendering a verdict.
In giving jury instructions, the trial court is required to give the relevant law favoring both sides. Demaree v. Safeway Stores, Inc. (1973), 162 Mont. 47, 508 P.2d 570. The District Court gave a general negligence instruction and an instruction on the duty of care for jail operators as established by Pretty On Top, 597 P.2d at 60-61. When taken as a whole, if the instructions state the law applicable to the case, a party cannot claim reversible error. Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364. By giving the general negligence instruction and the instruction describing the duty of care owed by the ordinary and prudent jailkeeper, the District Court gave the jury a pertinent summary of the applicable Montana law. We cannot say that Lake County was prejudiced by the District Comb’s giving these instructions and refusing to give Lake County’s proposed instructions numbered 15, 16 and 17.
We hold that the District Court did not commit reversible error by refusing to give Lake County’s proposed instructions relating to the duty that Lake County owed to Ms. Moralli.
IV.
Do plaintiff’s counsel’s closing arguments constitute reversible error?
Lake County objected twice to comments made by Ms. Moralli’s counsel during his closing argument. Lake County contends that these comments prejudiced the jury and prevented the County from obtaining a fair trial.
The first such comment referred to Mr. Emerson’s absence as a witness for Lake County. Emerson, the jailer on duty when Ms. Moralli was released, was still employed by the County at the time of the trial. Counsel for Ms. Moralli stated that the County did not have Emerson testify because “he would have hurt their case very badly.” Lake County objected to this remark. The District Court sustained the objection and gave a curative instruction to the jury, advising them that they were not allowed to consider any statements made by plaintiff’s attorney as to what Emerson’s testimony may or may not have been. Plaintiff’s counsel contends that the comments regarding Mr. Emerson were fair statements as to the inference that could be drawn by the County’s failure to call a crucial witness, and were not improper comment.
Improper argument requires reversal only when prejudice has resulted which prevented a fair trial. Gunnels v. Hoyt (1981), 194 Mont. 265, 276, 633 P.2d 1187, 1194. In Gunnels, the defense counsel made improper comments upon and reference to excluded evidence, which indicated to the jury that the plaintiff was concealing evidence. We concluded that the district court properly instructed the jury “not to draw any inferences from rulings on evidence, not to consider rejected evidence, and not to conjecture or draw any inferences as to what an answer might have been, or as to the reason behind any objection.” Gunnels, 633 P.2d at 1194. We could not say that any prejudice resulted to the plaintiff in Gunnels. The argument in this case was even less prejudicial. Plaintiff’s counsel did not comment on excluded evidence. He did, however, comment on what testimony might have been. This was improper, but sufficiently cured by the District Court’s instruction regarding the comment. Plaintiff’s counsel’s reference to private logs kept by county employees was similarly handled by the District Court.
Lake County argues that the best solution is for the Court to hold that prejudice will be presumed where counsel offers improper argument or comments during trial and would have us place the burden on the offending party to establish a lack of prejudice. We decline to do so.
The other comments that Lake County objected to involve Ms. Moralli’s counsel’s remarks about county employees taking him to the wrong jail cell and the jail supervisor not giving certain documents to him, followed by his remark that he did not feel there was an intentional deception. This objection, overruled by the District Court, involves what the County calls “an attempt to infer to the jury that there was some sort of deception on the County’s part.” However, Ms. Moralli’s counsel’s comments related to properly admitted evidence. The jury can make inferences from properly admitted evidence.
We conclude that these arguments, although not ideal, do not constitute reversible error.
V.
Is there sufficient credible evidence to support the jury’s verdict?
We addressed this issue along with Issue I and concluded that there was sufficient credible evidence from which the jury could find in favor of Ms. Moralli.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, McDONOUGH and GRAY concur.
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
Claimant Samuel J. Grenz appeals from a May 14, 1992, order of the Workers’ Compensation Court dismissing with prejudice consolidated cause WCC No. 9202-6378 on res judicata grounds. We reverse.
Samuel Grenz injured his right elbow while working for the American Stud Company in Flathead County, Montana, on August 22,1984. That accident and related claims have resulted in eight prior appeals by Grenz to this Court, three in 1991 alone. In each case, we affirmed the district court’s or Workers’ Compensation Court’s action rejecting Grenz’s claims.
Subsequent to our last decision, Grenz filed new claims. These claims were consolidated as cause WCC No. 9202-6378. The claim specifically at issue here is Grenz’s assertion that his current degenerative arthritis was caused by work-related micro-trauma separate and apart from, and subsequent to, the August 1984 injury. Fire and Casualty of Connecticut (the insurer) denied liability on the basis that the claim was not filed timely and later moved the Workers’ Compensation Court to dismiss Grenz’s petition with prejudice.
The insurer asserted two arguments in its motion to dismiss: first, that the micro-trauma claim was barred by res judicata; and second, that the claims were barred because not filed timely. The Workers’ Compensation Court applied res judicata in granting the motion to dismiss. It did not address whether the claims are time barred.
The sole issue we address is whether the Workers’ Compensation Court erred in concluding that res judicata bars the micro-trauma claim.
The corut correctly set forth the four substantive criteria which must be met for the doctrine,of res judicata to apply: (1) the parties or their privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same and relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues. Whirry v. Swanson (Mont. 1992), 836 P.2d 1227, 49 St.Rep. 764; Phelan v. Lee Blaine Enterprises (1986), 220 Mont. 296, 716 P.2d 601. Applying the elements to the claim before it, the Workers’ Compensation Corut determined that the lack of causal connection between claimant’s current condition and his work has been adjudicated previously and finally in Grenz v. Fire and Cas. of Connecticut (1991), 250 Mont. 373, 820 P.2d 742. We disagree.
The issue in Grenz was whether the Workers’ Compensation Court erred in ruling that claimant was not permanently totally disabled “as a result of his August 22, 1984, right elbow injury.” 250 Mont. at 378, 820 P.2d at 745. Our holding was specific:
After reviewing the entire record in this case, we hold that there is substantial credible evidence to support the Workers’ Compensation Court’s finding that the claimant failed to establish a causal connection between his current physical condition and his 1984 right elbow injury.... [A] causal connection between the claimant’s current physical problems and his 1984 right elbow injury is not present.
Id. at 380, 820 P.2d at 746 (emphasis added). On the basis of this lack of causal connection to the injury on which Grenz’s claim was grounded, we determined that “the Workers’ Compensation Court correctly concluded that the claimant is not permanently totally disabled.” Id. Thus, while Grenz finally and conclusively determined the lack of causal connection between the 1984 injury and claimant’s current condition, it did not address or determine the question of causal connection between his condition and any alleged compensable event or events occurring subsequent to that time.
Claimant did attempt to raise the micro-trauma issue on appeal in Grenz. The insurer argued that Grenz was asserting a different theory on appeal than was presented to the Workers’ Compensation Court. We agreed, stating “[o]ur review of the record shows that the claimant admitted at trial that the sole basis for his claim to benefits in that proceeding was his 1984 injury.” Id. at 379, 820 P.2d at 746 (emphasis added). We then refused to address the micro-trauma theory, stating:
[O]n appeal, we will consider only whether the Workers’ Compensation Court properly determined that the claimant failed to establish a causal connection between his current physical condition and his August 22, 1984, right elbow injury and, therefore, was not permanently totally disabled as a result of the 1984 injury.
Id. at 379-80, 820 P.2d at 746.
Grenz does not support the Workers’ Compensation Court’s determination that lack of causal connection between claimant’s current condition and any and all work-related events was established therein. The criteria necessary for application of res judicata not being met, we conclude that the Workers’ Compensation Court erred in dismissing Grenz’s micro-trauma claim on the basis of res judicata.
It is appropriate to note here that we sympathize with the frustration and expense these proceedings have caused all involved. Indeed, we previously have expressed our concern over the multiplicity of claimant’s proceedings and the overall “cost” of those proceedings to the finite resources of the judicial system. See Grenz v. Medical Management Northwest (1991), 250 Mont. 58, 64, 817 P.2d 1151, 1155. We reiterate that concern here; it has not lessened. We must be ever vigilant, however, in ensuring that human propensities to frustration over seemingly endless litigation do not result in less than the full and fair consideration on legal principles to which litigants are entitled in Montana’s courts.
Reversed and remanded with instructions to the Workers’ Compensation Court to proceed to a determination of the insurer’s alternative basis for its motion to dismiss, namely, that Grenz’s latest claims are time barred.
CHIEF JUSTICE TURNAGE, JUSTICES WEBER, HUNT and McDonough concur.
|
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JUSTICE WEBER
delivered the Opinion of the Court.
The petitioner, Charlene Kay Schmitz, appeals from the property distribution in this marital dissolution action as determined by the District Court of the Fifteenth Judicial District, Sheridan County. We affirm in part and reverse in part.
The restated issues are as follows:
1. Was the notice of appeal timely filed?
2. Did the District Court err by including petitioner’s workers’ compensation benefits in the marital estate?
3. Did the District Court err in its findings of fact and conclusions of law?
Roger Keith Schmitz and Charlene Kay Schmitz were married on June 18, 1971. Neither party brought any substantial assets to the marriage. Prior to the marriage, Roger served in the military and completed one year of automotive schooling. Charlene had recently graduated from high school.
In 1976, Roger purchased, by means of a contract for deed, a 50% interest in farm/ranch property in Sheridan County, Montana from his uncle. Roger’s father, Joe Schmitz owns the other 50% interest. Both Charlene and Roger were active in fanning and ranching during the 191/2 years of their marriage. The contract for deed was paid off in 1990. Charlene was very active in all aspects of the farm/ranch operation until the time of her injury. The parties also raised two sons during this time.
Charlene began working in 1984 as a part-time nurses-aide at the Culbertson Nursing Home. In February 1986, Charlene suffered a work-related back injury which prevented her from working at the nursing home and limited her activities on the ranch. In the spring of 1986, Charlene was classified as permanently totally disabled for workers’ compensation purposes and began receiving monthly compensation payments of $358.76. These payments continued throughout the time of trial. Because the payments are subject to a 10-year limitation, Charlene will no longer qualify for workers’ compensation benefits after May 1996.
Charlene presently attends Idaho State College with assistance provided under a plan for displaced homemakers. Roger has continued to operate the farm/ranch operation.
In addition to the real property purchased from Roger’s uncle, the parties accumulated livestock, farm and ranch equipment, and numerous other items of personal property. The parties were essentially debt-free until 1987, when they borrowed $80,005.00 from Security State Bank in Plentywood to construct a new residence on the farm. In its Findings of Fact, Conclusions of Law and Order dated May 23,1991, the District Court awarded most of the marital property to Roger. Roger received the real property, the house located on his father’s land, which was built by the parties, all livestock, all farm equipment, and numerous other items of personal property. Charlene received $25,000.00 in cash, a 1982 Citation valued at $800.00, and her workers’ compensation benefits with a present value of $21,127.80, as of the trial date. Roger was ordered to pay the debts associated with the property he received and Charlene was ordered to pay $4,400.00 in debts she incurred as living expenses after leaving the family home and prior to the trial. Roger was awarded physical custody of the one minor child, who is now 18 years of age.
L
Was the notice of appeal timely filed?
Roger contends that the notice of appeal in this case was not filed on time. The resolution of this issue hinges upon the initial period under Rule 59(b), M.R.Civ.R, which provides:
Time for motion. Amotion for a new trial shall be served not later than 10 days after service of notice of the entry of the judgment. Because notice of entry of judgment was served by mail, three days
are added under Rule 6(e), M.R.Civ.P, which provides:
Additional time after service by mail. Whenever a party has the right or is required to do some act... within a prescribed period after the service of a notice ... and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.
Roger contends that adding three days to the prescribed period under Rule 59(b) increases the time to a total of thirteen days and, therefore, the exclusion of Saturdays, Sundays and holidays provided for under Rule 6(a), M.R.Civ.P., cannot apply. Rule 6(a), M.R.Civ.P., provides:
In computing any period of time prescribed or allowed by these Rules, ... the day of the act, event... is not to be included .... When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.
We conclude that the prescribed period referred to in the foregoing Rule includes the ten day period allowed for filing a motion under Rule 59(b), M.R.Civ.P., with the result that intermediate Saturdays, Sundays and holidays are excluded from the computation. The District Court granted Charlene and Roger Schmitz a dissolution on May 23, 1991. Roger mailed a notice of entry of judgment to Charlene’s attorney on May 29, 1991. In civil cases, the notice of appeal must be filed within thirty days of the date of the entry of judgment. Rule 5(a), M.R.App.P. Charlene filed a motion for new trial and a motion to amend the court’s findings under Rules 59(a) and 60(b), M.R.Civ.P., which extends the time for filing the appeal.
Rule 59(b), M.R.Civ.P., provides that a Rule 59(a) motion for a new trial must be filed within 10 days after service of notice of entry of judgment. Here the notice of entry of judgment was mailed on May 29,1991. Charlene filed her Rule 59(a) motion for a new trial on June 17, 1991. The day of mailing is excluded under Rule 6(a), M.R.CivR. The combined total of days allowed under Rule 59(b), M.R.Civ.P. and Rule 6(e), M.R.Civ.P. is thirteen days. Counting from May 30 and excluding the intervening Saturdays and Sundays, we determine that the last day for filing a Rule 59(a) motion was June 17,1991, the date Charlene filed her motion for a new trial.
We conclude that Charlene filed her appeal on time.
II.
Did the District Court err by including petitioner’s workers’ compensation benefits in the marital estate?
Charlene receives $358.76 per month in workers’ compensation benefits for an injury classified as a “permanent total disability.” She will receive these payments -until May 1996. Roger presented testimony by a certified public accountant that the present value of Charlene’s future benefit payments at the time of trial was $21,127.80. This figure was included as marital property and distributed to Charlene.
Charlene contends that to include her future workers’ compensation benefits as marital property is error. She argues that to include the figure in the marital estate is speculative because the payments could terminate if she completes the education program or if her physical condition improves.
Charlene presented no evidence at the trial to support any likelihood that she might complete her education program early or that her physical condition could improve. Charlene further contends that her benefits should not be included as part of the marital estate because they are intended to replace her wages. She also argues that including workers’ compensation benefits as a marital asset characterizes them as an assignment of the proceeds and therefore is against public policy.
Property which may be properly included in the marital estate is governed by Sec. 40-4-202, MCA, which provides that district courts “shall ... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.” (Emphasis supplied.) When the parties are unable to amicably settle their disputes, Sec. 40-4-202, MCA, provides the district courts with equitable powers to divide their property and assets.
In In re the Marriage of Blankenship (1984), 210 Mont. 31, 682 P.2d 1354, we concluded that a workers’ compensation award could be a marital asset. In two subsequent cases, where a workers’ compensation settlement had been commingled in marital funds we included the same in a marital estate. See In re the Marriage of Bos (1989), 238 Mont. 267, 776 P.2d 841; and In re the Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350. In In re the Marriage of Cooper (1990), 243 Mont. 175, 179, 793 P.2d 810, 812, we concluded that disability benefits can properly be included in the marital estate as they clearly come within the definition of property “however and whenever acquired.” Workers’ compensation payments are disability payments. In Cooper, the disability payments were included in the marital estate and awarded to the person receiving the same as is true in the present case.
While Sec. 39-71-743, MCA, prohibits attachment or assignment of workers’ compensation benefit payments, we conclude those provisions do not bar classification of workers’ compensation awards as marital property.
We hold that the District Court did not err by including the present value of Charlene’s future workers’ compensation payments as marital property.
III.
Did the District Court err in its findings of fact and conclusions of law?
The District Court adopted Roger’s proposed findings of fact and conclusions of law verbatim. Roger received the couple’s entire one-half interest in the farm/ranch property, all farm equipment, all livestock, the family home and miscellaneous items of personal property. Charlene received a 1981 Chevrolet Citation valued at $800.00, $25,000.00 in cash payable within six months of the trial, and her future workers’ compensation payments. Roger has responsibility for the bulk of the parties’ debts although Charlene was ordered to pay debts in the amount of $4,400.00. Charlene contends that the property valuation and the determination of the amount of debt are not supported by the record and result in an inequitable distribution of the marital estate.
The appropriate standard of review for this issue is whether the District Court’s findings of fact are clearly erroneous, as in Interstate Production Credit Assn. v. DeSaye (1991), 250 Mont. 320, 323, 320 P.2d 1285, 1287, and cited with approval in In re the Marriage of Eschenbacher and Crepeau (Mont. 1992), [253 Mont. 139,] 831 P.2d 1353, 49 St.Rep. 393, 394. The standard is the same whether the District Court prepared its own findings or adopted the findings of one of the parties. The wholesale adoption of one party’s proposed findings and conclusions is not by itself an automatic basis to vacate a judgment. In re the Marriage of Merry (1984), 213 Mont. 141, 149, 689 P.2d 1250, 1254.
Interstate Production Credit Assn, sets forth a three-part test to determine whether the district court’s findings axe clearly erroneous: (1) the Court will review the record to see if the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court determines if the trial court has misapprehended the effect of the evidence; and (3) if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” Interstate Production Credit Assn., 820 P.2d at 1287.
Substantial evidence is defined as “evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Barrett v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080, citing Black’s Law Dictionary 1281 (5th Ed. 1979); Stanhope v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228-29. Charlene specifically contends that the District Court erred by incorrectly calculating the marital debts, by adopting Roger’s expert’s valuations of specific property, and by failing to properly consider maintenance.
1. The marital debts.
The District Court found that Charlene’s debt to Security State Bank was $3,000.00, and that her total personal debt was $4,400.00. By piecing together the fragmented testimony about the bank loans and other debt, it is clear that the District Court’s finding is incorrect and that Charlene’s personal debt which she incurred for living expenses prior to trial is $8,900.00 — $4,500.00 more than the amount in the District Court’s finding.
The District Court also found that Roger owed his father, Joe Schmitz, $22,600.00 for a tractor and a combine which Roger used as trade-ins on new equipment purchased during the marriage. Roger and his father testified as to the claimed loans. Roger’s testimony was inconsistent as to the amount of the loan. He claimed the loan was approximately $22,000.00 and later contradicted that statement. Joe Schmitz testified he thought the loan amount was about $28,000.00 or even more but that he had never made any demand for the money. So far as any payment date is concerned, Roger only testified that there was a verbal agreement that he would pay his father “in due time.” The father testified that he had not made a demand for the money and if Roger did not pay it, it would eventually come out of his estate.
In In re the Marriage of Malquist (1987), 227 Mont. 413, 739 P.2d 482, we addressed a similar situation. In Malquist, the wife attempted to include loans from her mother amounting to $42,000,00 as part of the marital debt. We refused to include the debt on the basis of oral testimony alone, stating:
There is no other evidence in the record, such as a loan agreement, promissory note, canceled checks, or any form of receipt to substantiate the amount, existence or terms of the loans from [the wife’s] mother. Proposed findings of fact and conclusions of law must be sufficiently comprehensive to provide a basis for the trial court’s decision, and must be supported by the evidence presented.
Malquist, 739 P.2d at 484-85, citing In re the Marriage of Benner (1985), 219 Mont. 188, 193, 711 P.2d 801, 805.
The facts in this case are comparable to Malquist. No evidence was presented of a loan agreement, note, check, form of receipt, or existence or terms of loans.
We therefore conclude that the computation of marital debts was substantially incorrect in that the debt owed by Charlene was $8,900.00 as compared to the $4,400.00 awarded by the court. In addition, we conclude that the amount of $22,600.00 could not properly be included as a debt owed by Roger to Joe Schmitz.
2. The property valuations.
Charlene contends that the District Court erred in adopting Roger’s valuations as set forth in his proposed findings of fact. We have reviewed the record with regard to the valuations placed upon the farm and ranch equipment, real property and the home and have concluded that there is substantial evidence in the record to support the District Court’s valuation of those items.
In a similar manner, while there is conflicting evidence, we conclude there is substantial evidence to support the District Court’s evaluation of the cattle.
A significant portion of the personal property owned by the parties was not valued by the District Court. The findings only referred to these assets as “miscellaneous items of personal property with no established value, being household goods, etc.” Both parties introduced evidence relating to this personal property and its values. There is a substantial list of property including such things as a Conklin dealership, Cenex and Nemont stock, capital credits or patronage dividends in GTA, Sheridan Electric Coop and Nemont, a satellite dish, and a water treatment system. Because of the necessity for a remand because of our previously stated conclusions on changes in marital debt owed, we conclude that it will be appropriate on remand for the District Court to more specifically review the items of personal property and value the same. Because of the apparent inability of the parties to divide these assets, we therefore remand so that the District Court may determine the distribution to be made of such personal property.
3. Maintenance.
In view of our remand for redetermination resulting from the change in debt, we conclude that it will be appropriate for the court to reconsider the property distribution and the presence or absence of a need for maintenance on the part of Charlene. Such a determination should be made in accordance with Sec. 40-4-203, MCA.
In connection with that maintenance determination, we point out that the record indicates that Charlene may be unable to support herself in the near future. In addition to the debt of $8,900.00 as previously described, Charlene has shown an obligation of $10,479.20 for lawyer’s professional services and out-of-pocket expenses in connection with this divorce proceeding. As a result, Charlene apparently has approximately $5,000.00 from the cash distribution to assist in application for her needs. We therefore remand to the District Court for reconsideration of the maintenance question at the time it considers the other issues in the proceeding.
We affirm the findings and conclusions of the District Court with the exception of the items specifically mentioned above and with the exception of a potential maintenance award. We remand for further consideration of these items consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, McDONOUGH and HARRISON concur.
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JUSTICE HARRISON
delivered the Opinion of the Comb.
This is an appeal from the Tenth Judicial District, Judith Basin County, the Honorable Peter L. Rapkoch presiding. Appellants Charles Pierce (Pierce) and Whitney Ferdinand (Ferdinand) were found guilty of felony burglary and felony theft after a bench trial on September 9,1991. Pierce and Ferdinand appeal on the grounds that the District Court improperly denied their motion for reduction of the burglary charge to criminal trespass and their motion to dismiss the felony theft charge and replace it with a misdemeanor theft charge. We affirm.
On April 10, 1991, Pierce and Ferdinand were traveling west on Montana Highway 87, en route from Billings to Kalispell. Pierce was driving a pickup truck the pair had used to deliver a trailer for Pierce’s family business in Kalispell. At Windham they turned off the highway onto an unpaved lane and drove about a quarter of a mile into the yard of an old farmstead known locally as the Ray place. It was 7:30 in the evening, still light enough for a witness to see the pickup turn off the highway and park in the farmyard. The witness was Ray Sherer, who leased the property and lived in a trailer at the junction of the lane and the highway.
Sherer testified that he saw the truck stop near a bunkhouse. He telephoned the property owner, John Tripp, who also lived at the junction of the lane and the highway, and asked whether he had given anyone permission to drive into the farmyard. Tripp said he had not, so Sherer called the sheriff. Then, watching through binoculars, he saw a man, later identified as Pierce, use an eighteen-inch bar to break the padlock off the bunkhouse door.
By the time Undersheriff John Shilling arrived, five to ten minutes later, Pierce and Ferdinand had removed several items from the bunkhouse and placed them in the pickup. They had also broken the padlock on the back door of the farmhouse, but before they could remove anything from the house, Sherer and Shilling had driven into the farmyard. Shilling testified that he looked into the bed of the pickup truck at that time and saw an old school desk, a box containing several miscellaneous items, and a wall clock. He advised Pierce and Ferdinand of their rights and placed them under arrest. After the sheriff arrived, Pierce acknowledged that the items in the pickup truck, including two items in the cab, had come from the bunkhouse.
Ferdinand’s motion to sever her case from Pierce’s was denied, and the two were tried as co-defendants. The District Court heard the evidence after the two defendants waived jury trial, and on the same day Judge Rapkoch and the three attorneys visited the Ray place. On the basis of the evidence presented at trial and his personal observation, Judge Rapkoch found that the bunkhouse and farmhouse Pierce and Ferdinand had broken into were “occupied structures” and ruled that their offense therefore was burglary under Section 45-6-204(1), MCA. He also ruled that the retail value of $416 assigned to the stolen items by the State’s expert witness was the relevant value for determining whether the defendants were guilty of misdemeanor theft or felony theft, and found them guilty of felony theft under Section 45-6-301(6), MCA.
Pierce, who had a prior burglary conviction and several DUI convictions on his record, received a five-year suspended sentence and was fined $500. Ferdinand, who had no prior criminal history, received a two-year deferred sentence and was fined $250. Both were ordered to pay costs, restitution, and a $20 surcharge.
The issues on appeal are:
1. Whether the State presented sufficient evidence that the buildings Pierce and Ferdinand entered were “occupied structures” so as to support a burglary conviction.
2. Whether the State presented sufficient evidence of the value of the stolen property to support a conviction of felony theft.
I
When sufficiency of evidence is at issue on appeal, our standard of review is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bower (Mont. 1992), [254 Mont. 1,] 833 P.2d 1106, 1110, 49 St.Rep. 586, 588.
Burglary is a felony under Section 45-6-204, MCA, and occurs when a person “knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein.” The first issue on appeal is whether the State presented sufficient evidence that the buildings Pierce and Ferdinand entered were “occupied structures.” Appellants argued that the buildings at the Ray place were not occupied structures, and that their offense therefore was merely criminal trespass, a misdemeanor under Section 45-6-203, MCA. An occupied structure is defined in Section 45-2-101(40), MCA, as
any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present.
Testimony at the trial established that no one had lived at the Ray place since 1964; that neither the farmhouse nor the bunkhouse had electricity, heat, or running water; and that the house smelled strongly of wild animals and had a leaking roof. Nevertheless, both Sherer and the sheriff testified that they had seen people living in places “a lot worse.”
Tripp, who had owned the Ray place since 1947, lived in the house from 1948 to 1952 and now used both the farmhouse and the bunkhouse to store old furniture and appliances. Sherer used the bunkhouse to store fence posts. Tripp visited the house and bunkhouse about once a month, sometimes to poison mice and sometimes just to look around. No one had stayed overnight in the house or in the bunkhouse since 1964.
In considering the defendants’ motion to reduce the charge against them to criminal trespass, Judge Rapkoch observed that the bunkhouse was tight and of sound construction, though old, and was suitable for storage and safekeeping of antique items. Such buildings, he said, “have unique and personal value in themselves or are used as natural places for the storage of property which itself has real value to the owners. ... The owners of such ‘mini-ghost towns’... are entitled to have them respected.” Therefore, the court concluded, the bunkhouse was an occupied structure at the time of the offenses charged.
Underthe rule we established in State v. Sunday (1980), 187 Mont. 292, 609 P.2d 1188, a structure suitable for carrying on business and used regularly for that purpose is an “occupied structure,” and wrongful entry thereto for the purpose of committing an offense is burglary. Here, the bunkhouse was used regularly by the lessee, Sherer, to store materials needed for his farming business, and by the owner, Tripp, to store household goods. It is an occupied structure, suitable for use in the lessee’s farming business, just as the tack shed in Sunday was an occupied structure suitable for carrying on the owners’ horse rental business.
We hold that any rational trier of fact could have found the essential elements of the crime of burglary in this instance. The two defendants admitted that they had broken into the bunkhouse, an occupied structure, for the purpose of finding and taking away antique objects. The District Court properly found them guilty of burglary under Section 45-6-204, MCA.
II
The second issue is whether the State presented sufficient evidence to sustain a conviction of felony theft. A person commits theft when he “purposely or knowingly obtains or exerts unauthorized control over property of the owner and has the purpose of depriving the owner of the property.” Section 45-6-301(1), MCA. If the property exceeds $300 in value, the theft is felony theft under Section 45-6-301(6)(b), MCA. The value of stolen property is the market value at the time and place of the crime. Section 45-2-101(69)(a), MCA.
Pierce and Ferdinand removed the following objects from Tripp’s bunkhouse:
Seth Thomas wall clock
Two photographs in leather cases
School desk
Oil lamp with chimney
Shaving mug with three brushes
Hand crank telephone
Wall mirror with thermometer
Square glass bottle with cork
Schilling spice can
Boraxo hand cleaner can
Car wash compound
At the trial the State called Patricia Lee Stoos, a school teacher and part time antique dealer who had examined the stolen items in May 1991. She testified that the retail value of these items was $416, though she would pay only $219 if she were to buy them for future resale. If the clock were restored, she said, it alone would be worth $400, though in its present condition its retail value was only $225.
Appellants argue that the relevant value of the stolen items was the wholesale value, or $219, because the owner, Tripp, was not a retail merchant. Appellants distinguish State v. Barker (1984), 211 Mont. 452, 455-56, 685 P.2d 357, 359-60, in which we held that the retail value of a pair of boots stolen from a clothing store was the market value for the purpose of deciding whether the defendant was guilty of felony theft:
It was not error to instruct that the market value of the boots meant their retail price. ... Certainly here the wholesale price of the merchant could not be considered their market value. ... The price at which the merchant offers to sell his merchandise ordinarily is its market value, though not always.
We have applied this rule to property stolen from nonmerchants like Tripp as well as to property stolen from merchants. In State v. Fox (1984), 212 Mont. 488, 689 P.2d 252, for example, we found that testimony by the owner of a retail computer store was sufficient evidence of the value of computer equipment stolen from an apartment. See also State v. Dess (1984), 207 Mont. 468, 674 P.2d 502 (value of bicycles stolen from private owner was established by testimony from retail bicycle shop owners).
The weight of the evidence and the credibility of the witnesses are exclusively the province of the trier of fact. State v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. When conflicting evidence of value is presented, it is for the trier of fact to determine which evidence is dispositive. State v. Ramstead (1990), 243 Mont. 162, 170-71, 793 P.2d 802, 807. Here, any rational trier of fact could have found that the retail value assessed by a local antique dealer was in fact the market value of the stolen goods. The District Court properly adopted that value in denying the appellants’ motion to dismiss the felony theft charge.
AFFIRMED.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, McDONOUGH, HUNT and WEBER concur.
|
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JUSTICE HUNT
delivered the opinion of the Court.
Appellant Patrick James Campbell brought a claim against the estate of Robert John Allen. The personal representative of the estate disallowed the claim. Appellant then brought a petition in the District Court of the Third Judicial District, Powell County, seeking allowance of the claim. The District Court granted the motion of the personal representative to disallow the claim on the basis that the claim was not presented to the estate within the statutorily prescribed time period for bringing claims. We affirm.
The only issue before this Court is whether the District Court erred in determining that appellant’s claim against the estate is barred for failure to comply with the statutorily prescribed time period for filing claims.
Robert John Allen died on April 25, 1990. Wendy Rae Allen, the widow of the decedent, was appointed personal representative of the estate on May 8, 1990. Following her appointment, the personal representative ran a notice to creditors in a Powell County newspaper for three weeks, beginning on May 17, 1990. The notice stated that creditors of the estate had four months from the time of the notice in which to bring their claims against the estate. The four month period to bring claims ended on September 16,1990.
Appellant filed a claim against the estate of Robert John Allen on January 16,1991. Pursuant to Section 72-3-514, MCA, appellant had previously requested that bond be required of the personal representative. Appellant brought the claim in connection with injuries appellant allegedly sustained while a prisoner at the Montana State Prison in Deer Lodge. Appellant alleged these injuries occurred on April 20,1987, as a result of the negligent supervision of the decedent who at the time was a guard at the prison. The personal representative disallowed the claim by filing a notice of disallowance on January 23,1991. On March 13,1991, appellant submitted, pursuant to Section 72-3-805, MCA, a petition in the District Court seeking allowance of the claim against the estate of Robert John Allen and requesting a jury trial. On April 18,1991, the personal representative filed a motion to dismiss any petition appellant might file seeking allowance of the claim. The District Court returned the petition to appellant on the basis that the documents simply duplicated the earlier statement of claims by appellant. By order of May 7,1991, this Court stated that regardless of the timeliness of appellant’s initial claim against the estate, the District Court must accept and file appellant’s petition for allowance pursuant to Section 72-3-805, MCA. Whether appellant’s initial claim was timely or meritorious were issues to be decided by the District Court after receipt of appellant’s petition for allowance, and were not the basis upon which the petition should be accepted or rejected.
On October 31, 1991, the District Court granted the prior motion of the personal representative that appellant’s claim be disallowed, concluding that the claim was untimely pursuant to Section 72-3-801, MCA. In light of the determination that appellant was not a creditor of the estate, the District Court concluded that appellant lacked standing to request bond. This appeal followed.
The only issue before this Court is whether the District Court erred in determining that appellant’s claim against the estate is barred for failure to comply with the statutorily prescribed time period for filing claims.
The issue before this Court requires a review of a conclusion of law made by the District Court. Concerning this Court’s review of conclusions of law made by a lower court we have stated that “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for simply determining if the lower court’s conclusions are correct is that there is no discretion in determining a question of law. The lower court either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
Appellant’s claim against the estate is in tort. The incident from which appellant contends the claim arose occurred on April 20,1987. The statute of limitations for bringing an action in tort is three years. Section 27-2-204, MCA. Under usual circumstances, the statute of limitations for appellant to bring his action in tort would have run on April 20, 1990. However, Section 27-2-401, MCA, extends the period of limitations for persons under a disability. Section 27-2-401, MCA, provides in part that:
(1) If a person entitled to bring an action mentioned in part 2, except 27-2-211(3), is, at the time the cause of action accrues, either a minor, seriously mentally ill, or imprisoned on a criminal charge or under a sentence for a term less than for life, the time of such disability is not a part of the time limited for commencing the action. However, the time so limited cannot be extended more than 5 years by any such disability except minority.
At the time appellant’s cause of action accrued on April 20, 1987, appellant was a prisoner at the Montana State Prison. Appellant has been incarcerated continuously since April 20, 1987. The District Court was correct in concluding that appellant’s statutory disability extended the time period for bringing the tort action. However, Section 27-2-401, MCA, which extends the statute of limitations for persons under a disability only applies to “a person entitled to bring to bring an action mentioned in part 2.” The legislature has specifically provided for a different statute of limitations for bringing claims against an estate. Section 72-3-803, MCA, provides in part that:
(1) All claims against a decedent’s estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following time limitations:
(a) within 1 year after the decedent’s death; or
(b) within the time provided by 72-3-801(2) for creditors who are given notice and within the time provided in 72-3-801(1) for all creditors barred by publication.
Section 72-3-801, MCA, provides for a four month period in which creditors may file claims after notice is published by the personal representative. Section 72-3-803, MCA, clearly applies to all claims against the estate, even if the statute of limitations has not run against the claim pursuant to the general period of limitations found in Title 27, Chapter 2, Part 2, MCA. Appellant did not present his claim against the estate within four months of the publication of notice to creditors by the personal representative.
In finding that the appellant’s claim was barred by the statute of limitations, the District Court summarized the applicable law stating that:
The ordinary statute of limitations on [appellant’s] alleged tort claim is three years (27-2-204, MCA), and he commenced no action during that time, so his claim would ordinarily be barred. However, section 27-2-401 extends this for up to five years because [appellant] is imprisoned. However, section 72-3-801 requires that a claim against a deceased person must be filed within four months from the date of the first publication of notice to creditors, which constitutes a special statute of limitations as to decedents, and there is no extension provided by law for this even for persons having a statutory “disability.”
We hold that the District Court’s analysis and application of the law was correct and that appellant is barred from bringing his claim against the estate by the applicable statute of limitations found at Section 72-3-803, MCA.
Affirmed.
JUSTICES HARRISON, GRAY and McDONOUGH concur.
|
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JUSTICE HUNT
delivered the opinion of the Court.
Plaintiff David A. Krebs brought a wrongful discharge from employment action in the District Court of the Thirteenth Judicial District, Yellowstone County, against defendant Ryan Oldsmobile. Both parties brought motions for summary judgment. The District Court granted Ryan Oldsmobile’s motion for summary judgment and denied Krebs’ motion. We affirm in part and reverse in part.
We phrase the issues before the Court as follows:
1. Did the District Court err in granting Ryan Oldsmobile’s motion for summary judgment?
2. Did the District Court err in denying Krebs’ motion for summary judgment?
David A. Krebs was employed by Ryan Oldsmobile from July 25, 1989, until January 10,1990, when he was discharged. On January 4, 1990, Krebs provided information to the Montana Criminal Inves tigation Bureau (MCIB) concerning alleged illegal drug activity by several employees of Ryan Oldsmobile. At this time, Krebs agreed to continue to provide information on illegal activity at Ryan Oldsmobile and to attempt to pinchase illegal drugs from the employees of Ryan Oldsmobile who were allegedly selling drugs. There is no evidence indicating that Krebs was to be paid for providing this information.
On January 9, 1990, a vehicle owned by a known fugitive from justice was dropped of at Ryan Oldsmobile. Krebs called the MCIB and informed them of the vehicle. Sometime after Krebs made the call to MCIB, Dick Ryan of Ryan Oldsmobile pressed the redial button on the phone Krebs had used and learned that Krebs had called a law enforcement agency.
The following day, January 10, 1990, Dick Ryan and Pat Ryan, along with several employees of Ryan Oldsmobile schemed to “set up” Krebs. Pat Ryan announced that he was going to meet the fugitive at a local business in the vicinity of Ryan Oldsmobile. The purpose of this scheme was apparently to determine if Krebs would report to law enforcement information regarding this fictitious meeting with the fugitive. Krebs did phone the MCIB and informed them that Pat Ryan would be meeting at a nearby business establishment with the fugitive. An employee of Ryan Oldsmobile hit the redial button on the phone used by Krebs and learned that Krebs had again called a law enforcement agency. The employee informed Pat Ryan who immediately sought out Krebs and fired him.
The scheme devised by Pat Ryan to confirm his belief that Krebs would report illegal activity if given the chance also got Mr. Ryan into trouble with law enforcement officials and federal prosecutors. Acting on this information, law enforcement personnel surrounded the local business establishment in an attempt to capture the fugitive. They did not capture anyone.
On January 11,1990, one day after he had been fired, Krebs called Pat Ryan. The telephone conversation was recorded and the following is a transcript of that conversation:
Krebs: How are you doing? Hey, I am wondering what the deal is here. What, you’re so upset about, what is, you know, what’s the story here, as far as, as me working? What’s, what’s up?
Ryan: Well, number one is the misuse of the dealer plate, Dave. You know that you can’t run dealer plates on your, on your truck. Number two, you’re a [expletive deleted] snitch and we don’t want you around here, basically.
Krebs: How’s that? I mean, I don’t...
Ryan: Every time we make a move, you call the [expletive deleted] FBI. We caught you [expletive deleted] redhanded twice.
Krebs: I’m sorry, you’re wrong.
Ryan: You ... (unintelligible) ... Well, I know that I’m not wrong, Dave. No matter what you say, I know you’re [expletive deleted] boldfaced lying.
Krebs: Uh...
Ryan: I set you up yesterday, partner. You went over to the service department, you made a phone call, we hit redial after you left and it was some federal crime bureau. The same thing happened the night before when Dick and Alisse set you up, Dave. You went into Harkin’s office. After you left Dick hit redial, same [expletive deleted] group of people. It’s funny how I walk out and the place is surrounded by FBI agents. I laughed my [expletive deleted] off, and there you were watching all the action. You come get your [expletive deleted] check, get your plate back and I need your key too. That’s all I have to say to you.
Krebs: Uh...
Ryan: Tell... Tell Carl nice try.
Krebs: That doesn’t make ....
Krebs brought a wrongful discharge from employment action on September 10, 1990. Ryan Oldsmobile alleged that Krebs did not get along with other employees, that he disrupted the operation, and that various other legitimate business reasons existed which justified Krebs’ discharge. The District Court granted Ryan Oldsmobile’s motion for summary judgment and denied Krebs’ motion for summary judgment.
I
Did the District Court err in granting Ryan Oldsmobile’s motion for summary judgment?
A district court judge may grant summary judgment when: [T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P The party moving for summary judgment has the initial burden of showing that there is a complete absence of any genuine issue of material fact. 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 v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. Summary judgment is never an appropriate substitute for a trial if a factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. If there is any doubt as to the propriety of a motion for summary judgment, it should be denied. Rogers v. Swingly (1983), 206 Mont. 306, 670 P.2d 1386. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.
Krebs brought an action claiming that his termination from employment violated the Montana Wrongful Discharge From Employment Act (Wrongful Discharge Act) found at Section 39-2-901 through 914, MCA. Section 39-2-904, MCA, of the Wrongful Discharge Act sets forth the elements of wrongful discharge, and provides that:
A discharge is wrongful only if:
(1) It was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;
(2) The discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or
(3) The employer violated the express provisions of its own written personnel policy.
The clear and unambiguous language of the statute provides that proof of any one of the three elements will support a wrongful discharge action. The elements of the statute applicable to Krebs’ claim of wrongful discharge were correctly set out by the District Court in its order and memorandum granting summary judgment to Ryan Oldsmobile. The District Court stated that:
In the present case, Krebs concedes that Ryan did not violate the express provisions of a written personnel policy since it had none, nor was he a probationary employee. Therefore, in order for Kreb’s [sic] to establish a claim under Montana’s wrongful discharge act he must prove that his discharge was was [sic] not for good cause or that his discharge was in retaliation for reporting a violation of public policy.
The District Court then determined that Krebs failed to present any genuine issues of material fact which would preclude summary judgment on Ryan Oldsmobile’s contention that the discharge was for good cause. The District Court also granted summary judgment to Ryan Oldsmobile on the issue of whether Krebs’ termination was in retaliation for reporting a violation of public policy. The court stated that although “a good faith reporting of a statutory violation which never occurs or is unfounded can serve as a basis for a wrongful discharge claim,” summary judgment was appropriate in this situation. The court concluded that due to the nature of Krebs’ conduct in this case he was not protected by the Wrongful Discharge Act. The court added that even if Krebs’ conduct was covered by the Wrongful Discharge Act, there was no question that he was not discharged in retaliation for reporting a violation of public policy.
We will first consider the court’s summary judgment order in favor of Ryan Oldsmobile on the issue of good cause. Section 39-2-903(5), MCA, provides that:
“Good cause” means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.
Ryan Oldsmobile presented evidence to the District Court which, if proven to be true, could support their contention that Krebs was discharged for good cause. However, Krebs also presented evidence tending to show that he was not discharged for good cause. The evidence offered by Krebs clearly presents a genuine issue of material fact which remains to be determined, thus precluding summary judgment on the issue of whether good cause existed for the discharge.
The District Court then recognized that the Wrongful Discharge Act protects a good faith “whistle blower.” However, the court stated that the Wrongful Discharge Act would not cover “a paid government agent (-undercover police officer) whose sole purpose is to investigate and report public policy violations to their primary employer.” The court concluded that Krebs’ status was more akin to that of an undercover police officer, and therefore, the statute forbidding termination of an employee for the reporting of a violation of public policy did not apply to Krebs. We disagree. Krebs was clearly an employee as defined in Section 39-2-903(3), MCA. Krebs approached law enforcement in order to volunteer information. He was not sought out or placed by law enforcement. Krebs was not promised remuneration. Krebs provided information on only three occasions. Krebs’ relationship with law enforcement lasted a total of six days. Finally, Krebs was paid a grand total of $40 for the information provided and this sum was paid several weeks after he was discharged. To hold that an individual who provides information concerning violations of public policy will not be covered by the Wrongful Discharge Act if they agree to cooperate, even minimally with law enforcement, would be to thwart the very purpose of the statute. The statute states that a discharge in retaliation for reporting a violation of public policy is a wrongful discharge. Krebs’ conduct was protected ■under the Wrongful Discharge Act.
In this case, the recorded telephone conversation, by itself, is sufficient to create a genuine issue of material fact as to whether Krebs was discharged in retaliation for reporting a violation of public policy. Summary judgment was not appropriate in light of the contested factual issues.
Summary judgment is proper when there is no genuine issue of material fact as to whether an employee was discharged for good cause or in retaliation for reporting a violation of public policy. However, in this case there are genuine issues of material fact which remain to be decided by the trier of fact. The District Court’s granting of summary judgment to Ryan Oldsmobile is reversed.
II
Did the District Court err in denying Krebs’ motion for summary judgment?
Ryan Oldsmobile denies that Krebs was wrongfully discharged and argues that numerous reasons existed which justified Krebs’ discharge. Ryan Oldsmobile has raised genuine issues of material fact which are in dispute relating to Krebs’ discharge and which are clearly sufficient to survive Krebs’ motion for summary judgment. The District Court’s denial of Krebs’ motion for summary judgment is affirmed.
This matter is affirmed in part and reversed in part and remanded to the District Court for a trial to determine whether Krebs was discharged for “good cause” and for a determination of whether Krebs was discharged in retaliation for reporting a violation of public policy.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and WEBER concur.
|
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] |
JUSTICE HUNT
delivered the opinion of the Court.
Petitioner and respondent, Judith L. Newton, brought a petition for dissolution of marriage on August 1, 1990. Respondent and appellant, Daniel J. Newton, appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the District Court of the Eleventh Judicial District, Flathead County. Specifically, Daniel appeals from the District Court’s valuation of an item of the marital estate and from the District Court’s award of temporary maintenance. We affirm.
Daniel presents two issues for review by this Court:
1. Was the District Court’s valuation of the sports card collection clearly erroneous?
2. Was the District Court’s award of temporary maintenance in the sum of $450 per month for five years clearly erroneous?
Daniel and Judith Newton were married in 1975. Two children were bom during the marriage — a son in 1977, and a daughter in 1978. There are no issues raised on appeal relating to the District Court’s determination regarding child support, custody, or visitation.
A bench trial was held on August 15,1991. On February 20, 1992, the District Court entered its findings of fact, conclusions of law, and decree of dissolution. The parties stipulated to the value and distribution of much of the marital estate. At trial, the parties evidenced a general intent that each side should retain their own personal property which they were in possession of at the time of trial. One such item of personal property was a sports card collection belonging to Daniel. The parties offered conflicting evidence as to the value of the collection. The District Court assigned a value of $8000 to the collection.
The District Court found that the value of the parties’ assets was $44,707 and that none of the property was income-producing. This valuation excluded retirement accounts and a 1991 profit sharing check of Daniel’s which had been previously allocated between the parties. The total debt of the parties was $9863, leaving a net marital estate of $34,844. Judith received property worth $18,085 and assumed $1540 in debt, for a total award of $16,545. Daniel received property worth $26,622 and assumed $8323 in debt, for a total award of $18,299.
The District Court found that Daniel’s monthly expenses totalled $1768.45 and that Judith’s monthly expenses totalled $1450. This determination of Daniel’s monthly expenses included his child support obligation of $519.25 per month, as determined by the District Court. The District Court found that Daniel’s net income from his salary was approximately $1500 per month. At the time of trial, Daniel was employed by the Columbia Falls Aluminum Company where he had worked for the past twelve years. In addition to his salary, the evidence presented at trial indicated that Daniel had received annual profit sharing checks for the past four years in amounts approximating his annual salary. The evidence indicated that while the amount of the profit sharing checks may vary from year to year, it was expected that the payments would be made annually in the future.
The District Court found that pursuant to the requirements of Section 40-4-203(1), MCA, Judith was entitled to temporary maintenance. On appeal, Daniel does not contest this finding. The District Court ordered maintenance of $450 per month for a period of five years, or until Judith receives a bachelor’s degree, remarries, or dies, whichever occurs first. Following the entry of the decree of dissolution, Daniel made a motion for a new trial which was denied by the District Court. Daniel then brought this appeal.
I
Was the District Court’s valuation of the sports card collection clearly erroneous?
On appeal, Daniel attacks the District Court’s finding that the value of the sports card collection was $8000. Concerning our standard of review of marital property divisions, this Court recently stated that:
In the past, this Court has employed an abuse of discretion standard in reviewing a lower court’s determination of the appropriate division of the marital estate. This Court has recently clarified that our standard of review in regard to the factual findings of the district court relating to the division of marital property is whether the district court’s findings are clearly erroneous.
In re the Marriage of Danelson (Mont. 1992), 253 Mont. 310, 833 P.2d 215, 219, 49 St. Rep. 597, 599.
The only evidence at trial concerning the value of the collection was the conflicting testimony offered by the parties. Neither party offered independent evidence or testimony of the value of the collection. No appraisal of the collection was obtained. Judith testified that in her opinion the collection was worth $8000. On cross-examination, she stated that this estimation of the value of the whole collection was based in part on her sale of one particular album of the collection. Daniel testified that the one particular album sold was the most valuable in the collection and was not indicative of the value of the remainder of the collection. Daniel also testified that he purchased the baseball card portion of the collection for between $3250 and $4000. He then offered several opinions as to the value of the collection, first assigning a value of $3250 and then $2750.
Neither of the conflicting opinions of the parties as to the proper value of the collection was particularly compelling. The relatively unsupported assertions as to the value of the collection, coupled with the complete absence of any independent evidence of the value, placed the District Court in a difficult situation. Based on the evidence before it, the District Court found the value of the collection to be $8000.
Upon reviewing a District Court’s valuation of an item of the marital estate this Court is guided by several well-established principles. First, in a dispute over the value of property in a marriage dissolution, the District Court may assign any value that is within the range of values presented into evidence. In re the Marriage of Kramer (1987), 229 Mont. 476, 747 P.2d 865. Second, the trial court, having had the opportunity to observe the demeanor and judge the credibility of the witnesses, is in a better position to resolve conflicting factual testimony than is this Court. In re the Marriage of Gerhart (1990), 245 Mont. 279, 800 P.2d 698. In this instance, the District Court, after observing the testimony of the parties, found the value of the collection to be $8000. This value was within the range of values presented. We cannot say that the finding of the District Court as to the value of the collection was clearly erroneous.
II
Was the District Court’s award of temporary maintenance in the sum of $450 per month for five years clearly erroneous?
Daniel does not contend on appeal that Judith is not entitled to maintenance pursuant to the requirements of Section 40-4-203(1), MCA. However, Daniel contests the award on the basis of Section 40-4-203(2)(f), MCA, which sets forth one of the factors to be considered in determining the amount and duration of a maintenance award. Section 40-4-203(2)(f), MCA, provides that in awarding maintenance a district court judge shall consider:
[T]he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
While not always the determining factor, a spouse’s ability to meet his or her own needs is a factor which must be given great weight in determining an award of maintenance. In re the Marriage of Cole (1988), 234 Mont. 352, 763 P.2d 39.
Daniel argues that with a monthly income from salary of $1500 and monthly expenses of $1768.45, as determined by the District Court, the award of maintenance by the District Court ignores the reality of his financial situation. This Court has in the past reversed awards of maintenance when it appeared that the party ordered to pay the maintenance would not have sufficient resources left over to support himself. In re the Marriage of Keel (1986), 223 Mont. 305, 726 P.2d 812; In re the Marriage of Tow (1987), 229 Mont. 483, 748 P.2d 440.
Judith responds to this argument by pointing out that Daniel’s income is in reality much greater than $1500 per month. The evidence at trial was that Daniel also receives an annual profit sharing check in an amount approximately equivalent to his salary. It is clear from the findings of fact, conclusions of law, and decree of dissolution, as well as from the District Court’s memorandum and order in response to the motion for a new trial, that the District Court considered this additional source of income in determining the maintenance award. Daniel’s additional income from the profit sharing checks was an appropriate basis for the District Court’s maintenance award in this case. An argument similar to Daniel’s was recently considered by this Court in In re the Marriage of Jacobson (Mont. 1992), 825 P.2d 561, 49 St. Rep. 92. In Jacobson, the husband asserted that his monthly income was less than his obligation for child support and maintenance. This Court noted that the husband’s corporation had a regular practice of declaring bonuses to pay expenses that the husband had incurred. This additional income allowed the husband to meet his support obligations while at the same time providing for himself. Likewise, Daniel’s additional income from the annual profit sharing checks will enable him to meet the maintenance obligation while providing for his own needs. The District Court’s award of maintenance in this situation was not clearly erroneous.
Affirmed.
JUSTICES HARRISON, TRIEWEILER, GRAY and WEBER concur.
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
L.D. (appellant), the mother of A.E., C.E., S.R. and J.R. (children), appeals from two orders of the District Court for the Second Judicial District, Silver Bow County. The first order found the children to be youths in need of care and abandoned by their mother and fathers. Based upon these findings, the court terminated appellant’s parental rights as to each of the children and gave permanent legal custody, including authority to consent to adoption, to the Montana Department of Family Services (DFS).
The second order denied appellant’s motion to rescind the order terminating her parental rights and specifically reaffirmed the termination order. We affirm the decisions of the District Court.
We state the issues raised by appellant as follows:
1. Did the District Court err in terminating appellant’s parental rights based upon abandonment?
2. Did the District Court correctly rule the requirements of the code had been met and that appellant was afforded due process prior to terminating her parental rights?
3. Did the District Court properly hold appellant’s motion to rescind the order terminating her parental rights was untimely?
On November 5, 1990, DFS in Butte became involved with appellant and her children in an attempt to ascertain whether the children were abused or neglected or otherwise in need of care. After a preliminary investigation, the children were placed in foster care, and DFS petitioned the District Court for an order of temporary investigative authority and protective services. At a show cause hearing on November 16,1990, the District Court issued the temporary order which was effective until February 14,1991... On December 20,1990, appellant consented to a treatment plan in which she was to meet certain criteria aimed at eliminating her chemical dependency and establishing a nurturing home environment for herself and her children. Appellant did not comply with the terms of the treatment plan. As a result, DFS petitioned the District Court for temporary legal custody of the children on February 11,1991. On the same date, appellant waived her right to a hearing on the temporary legal custody issue and consented to DFS having temporary legal custody of her children.
Additionally, appellant entered into a second treatment plan by court-ordered consent decree on February 11,1991. However, by the end of February 1991, appellant once again was not in compliance with the terms of the treatment plan. The DFS social worker continued in her attempts to work with appellant but with no success. By April 15,1991, appellant had ceased all contact with DFS and her children. Efforts were made to contact appellant but her whereabouts were ■unknown. DFS petitioned for termination of appellant’s parental rights on August 9,1991.
A hearing on the petition was held on August 26, 1991. Appellant was not present at the hearing. On August 27,1991, the District Court terminated the parental rights of appellant and granted permanent legal custody and authority to consent to adoption to DFS. Appellant’s motion to rescind the termination order was denied on February 4, 1992. This appeal followed.
It should be noted the District Court also terminated the parental rights of the father of A.E. and C.E. and the father of S.R. and J.R. The fathers do not appeal the District Court ruling and are therefore not considered.
I.
Did the District Court err in terminating appellant’s parental rights based upon abandonment?
A “parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. The State must show by clear and convincing evidence the parent(s) abandoned the children prior to parental rights being terminated. Matter of M.W. (1988), 234 Mont. 530, 533-34, 764 P.2d 1279, 1281.
On appeal, we will affirm the District Court’s decision to terminate parental rights where substantial, credible evidence exists to support that decision. Matter of T.M.M. (1988), 234 Mont. 283, 287, 762 P.2d 866, 869. The judge hearing oral testimony has the advantage in determining the outcome of the controversy. We will not disturb the District Court findings on appeal unless there is a mistake of law, or a finding of fact not supported by substantial, credible evidence. Matter of Henderson (1975), 168 Mont. 329, 333, 542 P.2d 1204, 1206; Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644.
Appellant contends the District Court erred in finding she had abandoned her children. She bases her argument upon the premise that her actions did not meet the requirements of § 41-3-102, MCA. We disagree. The District Court applied the appropriate section of the code applicable to termination of parental rights and made a finding that appellant had in fact abandoned her children. This finding is supported by the record.
Under § 41-3-609, MCA, parental rights can be terminated when any one of three circumstances exists. Matter of M.J.D. (1987), 225 Mont. 200, 206, 731 P.2d 937, 941. One of the circumstances in which parental rights can be terminated is abandonment. The applicable subsection provides:
(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: ...
(b) the child has been abandoned by his parents as set forth in 41-3-102(3)(d);...
Section 41-3-609(l)(b), MCA.
Section 41-3-102(3)(d), MCA, defines abandonment as occurring when the parent:
abandons the child by leaving him under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or by willfully surrendering physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child;... [emphasis added],
We have previously held “[t]he period for establishing abandonment pursuant to § 41-3-102(3)(d), MCA, is six months.” M.J.D., 731 P.2d at 940. Matter of M.W. (1988), 234 Mont. 530, 534, 764 P.2d 1279, 1282. Both of these cases involved facts which warranted application of the second clause in § 41-3-102(3)(d), MCA, regarding willful surrender of physical custody of the child. The first part of § 41-3-102(3)(d), MCA, applies where a parent abandons a child under circumstances that make reasonable the belief the parent does not intend to resume care of the child. No time frame is specified for this particular clause. We now clarify our previous rulings and hold the six-month requirement is applicable only to the subsection of § 41-3-102(3)(d) regarding willful surrender of physical custody of the child.
In the case at bar, substantial, credible evidence supports the District Court’s decision to terminate appellant’s parental rights. The record indicates appellant’s last contact with any of her four children was March 19,1991. It was at this time that DFS once again removed appellant’s daughters from her home because of appellant’s continued failure to follow the treatment plan. Despite a letter from DFS to appellant requesting she contact DFS to continue with efforts aimed at reuniting her with her children, appellant did not contact DFS until April 15, 1991. Upon contacting DFS, appellant informed her social worker she had just returned to the Butte area and was planning to move to Dillon.
Appellant requested DFS send her children to Dillon to set up foster care there. The DFS social worker informed appellant that the treatment plan had to be complied with in Butte, and that all visitation with her children had to occur in Butte. It was at this time that appellant ceased all contact with her children and DFS. Substantial efforts by DFS to ascertain the whereabouts of appellant from the middle of April 1991, until the termination hearing in August 1991, were fruitless.
We hold there was no mistake of law or finding by the District Court not supported by substantial credible evidence. We affirm the District Court’s holding that appellant abandoned her children by leaving them under circumstances that made reasonable the belief she did not intend to resume care of them.
II.
Did the District Court correctly rule the requirements of the code had been met and that appellant was afforded due process prior to terminating her parental rights?
Appellant next contends she was deprived of her fundamental right to fair procedure because the District Court did not afford her proper procedural safeguards. Specifically, appellant argues because she was not personally served with notice of the termination proceedings, her due process rights were violated. In the alternative, appellant argues she should have been served by publication. However, appellant’s reliance upon § 41-3-401(4) and (5), MCA, in support of these propositions is misplaced. Section 41-3-401, MCA, dictates the procedures to be followed when the State moves for a determination that children are abused, neglected, or dependent. These procedural aspects do not apply to termination proceedings.
The proper procedure to be followed when petitioning for termination of a parent-child legal relationship is found in Title 41, Chapter 3, Part 6, MCA:
This part provides procedures and criteria by which the parent-child legal relationship may be terminated by a court if the relationship is not in the best interest of the child. The termination of the parent-child legal relationship provided for in this part is to be used in those situations where there is a determination that a child is abused, neglected, or dependent, as defined in 41-3-102. Section 41-3-602, MCA.
In November 1990, the District Court found that the children were abused, neglected, or dependent pursuant to § 41-3-102, MCA. The record is clear that all procedural requirements were met in making this determination. It was only after appellant’s failure to comply with two treatment plans and her failure to keep DFS comprised of her whereabouts for over ninety days that the termination proceedings were initiated. Upon the DFS petition for termination of the parent-child relationship, Title 41, Chapter 3, Part 6, MCA, controlled.
Section 41-3-608, MCA, outlines the notice requirements applicable to parent-child relationship termination proceedings:
Before a termination of the parent-child legal relationship based on abandonment may be ordered, the court shall determine whether the rules of civil procedure relating to service of process on the parents have been followed. If the parents were not served personally, the petitioner must file an affidavit stating what efforts have been made to locate the parent or parents of the child. The affidavit must be filed at least 10 days prior to the hearing.
The record indicates DFS made substantial efforts to locate and serve appellant. Notwithstanding this fact, it is apparent appellant did not want to be found. It was after this unproductive search for appellant that DFS filed its affidavit outlining the efforts undertaken to locate appellant. The District Court found the notification efforts “were appropriate and that nothing further could have been done in order to obtain service of process on” appellant.
Additionally, appellant knew what was required of her to retain custody of her children. She was under actual notice from the onset of DFS involvement that her parental rights could be terminated should she fail to follow the court-ordered treatment plans. Due process requires notice and the opportunity to be heard. Byrd v. Columbia Falls Lions Club (1979), 183 Mont. 330, 332, 599 P.2d 366, 367. We hold the District Court properly held these elements to have been satisfied.
III.
Did the District Court properly hold the appellant’s motion to rescind the order terminating her parental rights was untimely?
Finally, appellant contends she was not notified of the termination of her parental rights and it was improper for the District Court to deny her motion for rescission of the termination order. This argument is without merit. At the hearing on the motion to rescind the termination order, appellant testified she learned of the termination of her parental rights the same day the District Court orally entered the termination order, August 26, 1991. However, nearly six months passed before appellant filed her motion to rescind.
The record supports the District Court’s findings that the motion to rescind was untimely. The District Court did not abuse its discretion in denying appellant’s motion.
We find no error with the District Court’s rulings. Accordingly, judgment is affirmed.
JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.
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] |
JUSTICE WEBER
delivered the Opinion of the Court.
This is an appeal from a decision by the Workers’ Compensation Court awarding claimant compensation based upon his entire work history with the employer. We affirm.
The issue on appeal is whether the Workers’ Compensation Court erred in unreasonably calculating claimant’s compensation by considering his entire work history with the employer instead of only the immediate preceding four pay periods.
Claimant, Lon Gregory (Gregory) was hired as a backhoe operator and laborer by Michael Bailey and Sons Logging (Bailey) in July 1989. Bailey is in the logging business which involves seasonal work. The crew of approximately 40 employees usually do not work in the spring and fall of the year. Most of these employees return after layoff. Employees are paid by the month.
Gregory worked from July 1989 until mid-February 1990, when seasonal weather conditions prevented work. He returned to work on June 1, 1990. It is uncontested that Gregory was injured during the course of his employment on August 10, 1990. On August 29, 1991, Gregory filed a petition for hearing before the Workers’ Compensation Corut alleging that State Compensation Mutual Insurance Fund (State Fund) improperly calculated his “wages” under Sec. 39-71-123, MCA(1989). Ahearing was held on November 4,1991. While responsibility for the injury was uncontested, the Workers’ Compensation Court had to calculate the average weekly salary for the purpose of determining compensation.
On January 13,1992, the Workers’ Compensation Corut issued its Findings of Fact, Conclusions of Law, and Judgment. The court determined that Gregory’s average weekly wage for purposes of § 39-71-123, MCA (1989), was $312.00 per week, with a resulting temporary total disability rate of $208.10 per week. The court calculated the compensation by using all weekly earnings for the entire length of time in which Gregory worked for Bailey.
The State Fund appeals this determination. Gregory cross-appealed with the State Fund responding to the cross-appeal.
State Fund argues that the Workers’ Compensation Court misapplied Sec. 39-71-123(3), MCA, and that it is appropriate to adjust a claimant’s wage determination to account for the seasonal nature of his employment where the job is not inherently full time. Further, State Fund argues that a term of employment does not end when a break in employment with the same employer occurs because of weather conditions or for other reasons of forced idleness. State Fund, therefore, contends that the actual wages earned over the entire span of employment should include off time.
Gregory argues also that the Workers’ Compensation Court erred in its calculations. Gregory contends that for purposes of determining compensation benefits, the court should have relied on the hourly calculations of subsection (a) of Sec. 39-71-123(3), MCA. Subsection (a) directs that if the “term of employment” for the same employer is less than four pay periods, a full time employee’s wages are computed by multiplying the hourly rate times the number of weekly hours for which the employee was hired to work. Such calculation, argues Gregory, would mean that during those weeks within the preceding four pay periods in which he did not work for Bailey because of the weather, the court should have used the $400 weekly figure to compute his benefits.
This case revolves around the use and interpretation of several statutes. Section 39-71-701, MCA, states:
(1) ... a worker is eligible for temporary total disability benefits when the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing ...
(3) Weekly compensation benefits for injury producing temporary total disability shall be 66 2/3% of the wages received at time of injury ...
Section 39-71-123, MCA, states:
(1) ‘Wages” means the gross remuneration paid in money, or in a substitute for money, for services rendered by an employee ...
(3) For compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the employee’s wages, except if:
(a) the term of employment for the same employer is less than four pay periods, in which case the employee’s wages are the hourly rate times the number of hours in a week for which the employee was hired to work; or
(b) for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods.
The Workers’ Compensation Court determined that pursuant to § 39-71-123(3)(b), MCA, sufficient cause existed for the court to consider additional pay periods beyond the four mentioned in the main body of subsection three. We agree.
The Workers’ Compensation Court concluded that using Gregory’s suggested interpretation and formula would provide him with an average monthly amount of money higher than the total sum of money earned in any of the four preceding months before his injury except one. The court found this to be unfair. Likewise, the Workers’ Compensation Court determined that use of the State Fund’s calculations failed to accurately take into account the seasonal nature of the logging business by including off time. Therefore, for the sake of total fairness, the court considered Gregory’s entire employment history with Bailey which constituted 59 weeks of employment. Of those 59 weeks, Gregory worked 31. The court used the total number of work hours (967) stipulated to by the parties and then divided this number by the actual number of weeks worked (31). This comes to 31.2 hours per week which the court multiplied by $10 per hour, Gregorys regular hourly wage, to equal the sum of $312.00. This sum was then multiplied by 66 2/3 percent for compensation of $208.10 per week. The court determined that this calculation gave consideration to periods when Gregory worked little, offset by periods when he worked a disproportionately high number of hours.
We review a Workers’ Compensation Court’s conclusions of law as to whether the conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Further, “[a]s long as the rate of disability fairly and reasonably] approximates the wages earned at the time of injury, this Court will uphold the method used by the Workers’ Compensation Court to determine a claimant’s usual hours of employment.” Stuber v. Moodie Implement (1989), 236 Mont. 189, 192, 769 P.2d 1205, 1207. Here, the Workers’ Compensation Court took into account the seasonal nature of the logging business while still basing its calculations on “actual” hours worked within the employee’s total actual work history. We have consistently stated that when calculating compensation, a court should consider the seasonal nature of a job. Infelt v. Horen (1959), 136 Mont. 217, 346 P.2d 556. Yet, precedent also exists for not including periods of forced idleness when computing the average weekly pay. Sandahl v. James A. Slack, Inc. (1987), 225 Mont. 208, 732 P.2d 831.
The record reveals that Gregory worked at a sporadic, seasonal job during 31 out of a total of 59 weeks in which he was employed by Bailey. The record establishes that during his entire employment with Bailey, Gregory worked only a total of 967 hours during these 31 weeks. In its calculations, the court excluded the 18 weeks of forced idleness because of weather. The court then divided the total number of actual hours by the actual number of weeks worked. Such calculation fairly approximates the average weekly salary of Gregory.
Because the court had to consider the seasonal nature of a job and not consider periods of forced idleness, it was required to look to subsection (b) of Sec. 39-71-123, MCA, when considering a fair method of calculations under this set of facts. Gregory’s argument pertaining to subsection (a) is inappropriate under this set of circumstances as reliance on it fails to consider any seasonal aspect of his employment.
We conclude that where sporadic, seasonal work is at issue, it is reasonable when calculating “usual” salary to calculate on a larger scale than four pay periods; therefore, reliance on subsection (b) of Sec. 39-71-123, MCA, is appropriate. Fairness demands that sporadic, seasonal employment be determined in such a way as to “accurately reflect the claimant’s employment history with the employer” as subsection (b) dictates. See, Stuber, 236 Mont. at 192. Further, it is inappropriate when determining compensation for a sporadic, seasonal job, to rely on subsection (a) of Sec. 39-71-123, MCA, as such calculations will be unreasonable and unfair.
We hold the Workers’ Compensation Court did not err in calculating compensation by using claimant’s entire work history with the employer instead of only the immediate preceding four pay periods.
JUSTICES HARRISON, TRIEWEILER, HUNT and McDonough concur.
|
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
Paul Eastman appeals from the Workers’ Compensation Court’s determination that he did not prove by a preponderance of the evidence that an August, 1981, injury caused his disability and from the order denying a new trial. We affirm.
We state the issues on appeal as follows:
1. Did the Workers’ Compensation Court err in concluding that the August, 1981, injury did not cause claimant’s disability?
2. Did the Workers’ Compensation Court err in denying the petition for new trial?
Paul Eastman (Eastman) was employed as a pick up and delivery driver for Garrett Freightlines (later ANR Freight Systems) from 1964 until March 31,1990, when the Great Falls terminal closed. His job required the loading and delivery of heavy freight.
During the course of his employment, Eastman sustained four injuries to his neck. Eastman’s first injury occurred on July 19,1979, when falling freight struck his neck. On May 21, 1980, Eastman injured his neck while stacking tires. On March 19, 1981, Eastman fell down the steps of the loading dock. Truck Insurance Exchange was the insurer on risk at the time of these injuries. After each injury, Eastman received medical treatment from Dr. Pardis, a Great Falls chiropractor.
On August 31,1981, Eastman injured his neck a fourth time while stacking pallets. Respondent Transport Insurance Company (Transport) was the insurer on risk. Eastman did not miss any work as a result of the injury. However, Eastman filed a claim for, and Transport paid, compensation for medical expenses. Eastman received chiropractic treatment from Dr. Pardis until Transport required him to have an independent medical examination. Eastman was examined by Dr. Gaston Syrenne, a neurosurgeon, in April, 1982. Dr. Syrenne’s diagnosis was mild neck sprain superimposed upon a degenerative disc disease and neurological deficit at C5-6.
Between 1983 and 1987, Eastman filed six additional workers’ compensation claims. These claims concerned injuries to Eastman’s middle back, legs and elbow. During this time, Eastman received no treatment on his neck. Eastman continued to perform the heavy duties of a pick up and delivery driver until the terminal closed in March of 1990. During this time, Eastman did not miss work due to his neck condition.
In 1988, Dr. Hachigan, a physician treating injuries to Eastman’s knee and foot, referred Eastman to Dr. James Hinde for treatment of continuing problems in Eastman’s neck and right shoulder. Dr. Hinde, a physiatrist, specializes in rehabilitating persons whose physical functions have been impaired by trauma, stroke or spinal chord injury. He diagnosed degenerative arthritis of the discs and joints in the neck (cervical spondylosis). Dr. Hinde stated that since 1982, Eastman’s mild cervical spondylosis had become severe due to biomechanical forces operating over a decade on an injured spine, causing further disc narrowing and further malalignment. Dr. Hinde confirmed a deficit at C5-6 and referred Eastman to Dr. Paul Gorsuch, a neurosurgeon. Dr. Gorsuch performed anterior disc removal and fusion surgery on June 29, 1990.
On June 19,1990, Eastman petitioned the Workers’ Compensation Court for medical expenses, temporary total disability benefits, and permanent partial or permanent total disability benefits, claiming that his disability arose out of the August, 1981, injury. The hearing examiner concluded that Eastman did not prove by a preponderance of the credible evidence that the August, 1981, injury caused his disability. The Workers’ Compensation Court adopted the examiner’s Findings of Fact and Conclusions of Law and Proposed Judgment. Subsequently, the Workers’ Compensation Court denied Eastman’s petition for new trial, finding that the August, 1981, injury was only a temporary aggravation of Eastman’s pre-existing degenerative disc disease. Eastman now appeals the judgment and order denying a new trial.
Did the Workers’ Compensation Court err in concluding that the August, 1981, injury did not cause claimant’s disability?
The Workers’ Compensation Court determined that Eastman did not prove by a preponderance of the evidence that his current neck condition was caused by the August, 1981, injury. According to the court, Eastman’s neck condition resulted from the gradual degeneration of his spondylosis and occasional aggravations to his neck.
The Workers’ Compensation Court considered reports or deposition testimony from three physicians. Dr. Gaston Syrenne first saw Eastman on April 8, 1982, and noted that Eastman probably had developed a mild degenerative joint disease by that time. Dr. Syrenne opined that degenerative arthritis was the main cause of Eastman’s continuing neck pain. Dr. Syrenne noted that Eastman attributed the neck pain to an August, 1981, injury; however, Eastman described the precipitating injury to Dr. Syrenne as a fall down five steps at the dock, an injury that occurred on March 19, 1981.
Dr. James Hinde treated Eastman in 1988 and 1989. Dr. Hinde testified that since 1982, Eastman’s mild cervical spondylosis had become severe. Dr. Hinde attributed Eastman’s neck condition to many incidents, including everyday trauma and work activities, repetitive trauma and individual traumatic events. Dr. Hinde could not attribute Eastman’s cervical spondylosis to a specific injury. Like Dr. Syrenne, Dr. Hinde testified that Eastman had attributed his neck and shoulder condition to a fall down five steps at the dock.
Dr. Paul Gorsuch concurred with Dr. Hinde that Eastman’s degenerative condition was difficult to attribute to a specific event. Rather, Dr. Gorsuch attributed Eastman’s condition to degenerative disc disease, cervical spondylosis, heavy work conditions and various trauma to his neck. Based on Eastman’s representation that his pain intensified with the August, 1981, injury, Dr. Gorsuch initially concluded that that injury was primarily responsible for Eastman’s condition. However, Dr. Gorsuch testified that if Eastman had the same symptoms prior to the injury, the injury was not a primary factor in Eastman’s pain. Once Dr. Gorsuch learned of prior neck injuries, he testified that the August, 1981, injury was relatively mild and less likely to exacerbate Eastman’s symptoms.
Based on this medical evidence, the Workers’ Compensation Court determined that the August, 1981, injury did not cause Eastman’s current condition. Our standard for reviewing a decision of the Workers’ Compensation Court is to determine if substantial evidence supports its findings and conclusions. When there is substantial evidence to support the Workers’ Compensation Court, this Court cannot overturn the decision. Wood v. Consolidated Freightways, Inc. (1991), 248 Mont. 26, 28, 808 P.2d 502, 504.
In this case, Eastman must prove by the preponderance of the credible evidence that 1.) he suffered an injury arising out of and in the course of his employment; and 2.) the injury was the proximate cause of his disabling condition. Frost v. Anaconda Company (1985), 216 Mont. 387, 390, 701 P.2d 987, 988. Taken as a whole, the medical evidence supports the Workers’ Compensation Court’s determination that the August, 1981, injury did not cause Eastman’s current condition. Eastman’s neck condition predated the August, 1981, injury. Eastman received 65 chiropractic manipulations on his neck prior to that date. As a result of the August, 1981, injury, Eastman resumed chiropractic treatment with Dr. Pardis. At Transport’s request, Eastman received medical treatment from Dr. Syrenne in April and May of 1982. The record reflects that this treatment was successful. Eastman testified that after Dr. Syrenne’s treatment, his symptoms, as a whole, subsided. He sought no medical attention or treatment for his neck from 1983 through 1987. Eastman continued to perform the heavy manual labor of a pick up and delivery driver until March of 1990, when the Great Falls terminal closed. During this time, Eastman did not miss any work as a result of his neck condition. Eastman testified that he would have continued working in that position if the terminal had remained open.
In July of 1989, Dr. Hinde reported that Eastman’s condition related to the August, 1981, injury. Similarly, Dr. Gorsuch wrote Eastman’s counsel in August of 1990 and attributed Eastman’s pain symptomatology to the August, 1981, injury, although he determined that that injury did not cause Eastman’s degenerative neck condition. Dr. Hinde’s report and Dr. Gorsuch’s correspondence subsequently were discredited by the doctors themselves. Drs. Hinde and Gorsuch testified to the importance of an accurate and detailed medical history in treating and determining the cause of a medical condition. However, Eastman failed to inform Dr. Hinde and Dr. Gorsuch of essential facts before each physician concluded that the August, 1981, injury caused his current condition. Eastman did not inform Drs. Hinde and Gorsuch of the July, 1979 or May, 1980, injuries, or injuries subsequent to August, 1981; that the fall down the dock steps occurred in March, 1981; that the August, 1981, injury involved reaching for freight; or the substantial number of chiropractic manipulations of his neck before and after the August, 1981, injury. Once these facts were disclosed, Dr. Hinde could not attribute Eastman’s mild spondylosis in 1982, or its progression to severe spondylosis, to a specific injury. Dr. Gorsuch testified that the August, 1981, injury was relatively mild compared to previous neck injuries and was therefore mechanically less likely to cause the exacerbation of his symptoms.
Eastman relies on deposition testimony from Dr. Hinde and Dr. Gorsuch to establish that it was medically possible for the August, 1981, injury to cause his current disability by aggravating his pre-existing condition. Eastman contends that where a claimant proves that it is medically possible for an injury to aggravate a pre-existing condition, the claimant has met his burden of proving causation under the Workers’ Compensation Act.
Eastman’s contention is an oversimplification of well-established principles concerning medical possibility evidence. It is true that when a claim is based on an aggravation of a pre-existing injury, as Eastman bases this claim, proof of medical possibility, in conjunction with other evidence, can support a grant of workers’ compensation benefits. Hash v. Montana Silversmith (1991), 248 Mont. 155, 160, 810 P.2d 1174, 1177. However, we do not consider medical possibility evidence in a vacuum.
“ ‘Medical possibility is to be weighed just as any other evidence; if supported by other, independent evidence it is ‘acceptable’ to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate the conclusion that the claimant has met his burden of proof under the Act.”
Currey v. 10 Minute Lube (1987), 226 Mont. 445, 449, 736 P.2d 113, 116 (citing Wheeler v. Carlson Transport (1985), 217 Mont. 254, 261, 704 P.2d 49, 53-54); Laber v. Skaggs Alpha Beta (1991), 247 Mont. 172, 177, 805 P.2d 1375, 1378.
Eastman contends that his medical possibility evidence is supported by the records of Drs. Pardis and Syrenne and his own testimony. The record reflects that Eastman has not been examined by either physician for his neck condition since 1983. Their records are not probative concerning the issue of whether Eastman’s August, 1981, injury caused his current disability. Eastman’s own statements attribute his current disability to the injury involving a fall down loading dock steps or, alternatively, to the August, 1981, injury. Such inconsistent statements do not provide significant corroboration of the medical possibility evidence. Accordingly, applying Currey to the record before us does not mandate a conclusion that Eastman has met his burden of proving the causal link between the August, 1981, injury and his current condition.
We conclude that substantial credible evidence supports the Workers’ Compensation Court’s determination that Eastman did not prove by a preponderance of the credible evidence that his disability was caused by the August, 1981, injury. The Workers’ Compensation Court did not err.
Did the Workers’ Compensation Court err in denying the petition for new trial?
Eastman filed a petition for new trial alleging that the Workers’ Compensation Court omitted certain findings of fact, considered erroneous findings of fact, and failed to address his theory of aggravation of a pre-existing condition. The Workers’ Compensation Court denied the petition.
The Workers’ Compensation Court’s authority to grant a new trial is found in A.R.M. 24.5.344 and guided by the general rules of civil procedure. Anew trial maybe granted in cases tried by the court when an irregularity in the proceedings, accident or surprise, or newly discovered evidence materially affects substantial rights of a party. Sections 25-11-102(1), (3), (4); 25-11-103, M.R.Civ.P. (1991). Here, the Workers’ Compensation Court determined that the findings were supported by substantial, credible evidence and that there were no grounds for a new trial.
Eastman contends that the Workers’ Compensation Court erred in determining in its order denying the petition for new trial that the August, 1981, injury was merely a temporary aggravation of Eastman’s pre-existing condition. Eastman asserts that the finding of temporary aggravation negates the Workers’ Compensation Court’s original findings and is not supported by the record. We disagree.
The finding of temporary aggravation is consistent with the Workers’ Compensation Court’s judgment denying benefits. Both the finding and the judgment are based on the same salient fact; namely, that the August, 1981, injury did not cause Eastman’s current condition. The finding of a temporary aggravation is supported by the record. Eastman experienced headaches, sore neck and shoulder, and numbness in arms and hands prior to August, 1981, indicating that his neck condition predated the injury. Eastman testified that his symptoms, as a whole, subsided after Dr. Syrenne’s treatment. Between 1982 and 1988, Eastman’s mild cervical spondylosis became severe. Dr. Hinde and Dr. Gorsuch attributed the deteriorization to natural degeneration, as well as other factors.
Allen v. Treasure State Plumbing (1990), 246 Mont. 105, 803 P.2d 644, is on point. In Allen, the claimant suffered successive injuries to his back, once in 1974, and again in 1977. The claimant filed a claim for permanent partial disability with the Workers’ Compensation Court in 1987. The Workers’ Compensation Court found, and we affirmed, that the 1977 injury was only a temporary aggravation of the claimant’s pre-existing condition and was not the cause of claimant’s disability in 1987. Thus, the insurer on risk in 1977 was liable only for benefits reasonably related to the temporary aggravation of claimant’s condition. Here, Transport has paid the benefits reasonably related to the August, 1981, injury.
We conclude that substantial credible evidence exists to support the Workers’ Compensation Court’s finding that the August, 1981, injury temporarily aggravated Eastman’s pre-existing condition. The finding of a temporary aggravation is consistent with the Workers’ Compensation Court’s determination that the August, 1981, injury did not cause his current disability. We hold that the Workers’ Compensation Court did not err in denying Eastman’s petition for new trial.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and McDONOUGH concur.
|
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JUSTICE HARRISON
delivered the Opinion of the Court.
Ok Cha Mason appeals the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on a unanimous jury verdict in favor of respondents, Jon W. Ditzel and his employer, Empire Sand and Gravel Company, Inc. Mason brought the action to recover damages resulting from an automobile accident in Billings on September 23, 1987. Respondents denied responsibility for the accident, and after a seven-day trial in 1991 the jury decided that the driver, Ditzel, had not been negligent. We affirm.
Mason raises the following issues on appeal:
1. Did the District Court err in allowing Dr. Joseph Rich to testify as a defense witness?
2. Did the District Court err in denying Mason’s motion for mistrial after an officer of Empire Sand and Gravel Company spoke with jurors during the trial?
Ok Cha Mason (Mason) was bom in Korea in 1946. She met her husband, Ted Mason, while he was an air traffic control specialist stationed in Seoul. They were married in Missoula, Montana, in 1973. From 1985, when the couple moved to Billings, -until just before the accident, Mason worked as a part time bakery clerk. She was not fluent in English and was tested in 1991 at a third-grade reading level.
At approximately 9:00 on the morning of September 23, 1987, Mason was driving her Dodge Colt sedan south on Main Street, en route from her home in Billings Heights to a dental appointment in Billings. Ditzel was driving his employer’s Kenworth tractor-trailer truck, or “semi,” southbound in an adjacent lane. It was partly loaded, with an estimated gross vehicle weight of 35,000 to 40,000 pounds. Both vehicles were moving at approximately 35 miles per hour.
Main Street has three southbound lanes. Conflicting evidence was presented as to whether Mason was driving in the curb lane or the center lane at the time of the accident, but in any case, Ditzel’s truck was at the left of Mason’s car just before the collision. The truck and car collided, causing the car to skid across the center and far left southbound lanes and hit the median. It then rolled over onto its top. Mason was taken by ambulance to an emergency room, treated for injuries to her left hand and released the same day.
Police testimony and photographs of the vehicles indicate that Mason’s car was damaged only on the left side and top. The truck sustained minor damage to the left front bumper. Although Mason testified that the truck hit her car from behind, its rear bumper, tail lights, and trunk apparently were undamaged, though scratches appeared on the left rear quarter panel. Mason’s expert witness attributed these scratches to the initial contact between truck and car, but the officer who wrote the accident report suggested that they represented damage done when the car rolled over onto the median.
Mason told a police officer, immediately after the accident, that she was driving in the crab lane when Ditzel’s truck hit her car. At the trial, however, she testified that she had been in the center lane, having changed lanes in front of McDonald’s, nearly two blocks north of the accident scene. Ditzel told officers at the scene that he had been driving in the center lane; this was corroborated by the driver of a wrecker who had been travelling in the left or inside lane, passing Ditzel’s truck just before it collided with Mason’s car. When the officers arrived, shortly after the accident, Ditzel’s truck was in the center lane at the end of parallel skid marks approximately 100 feet long. Mason’s car was lying on its top on the median to the left of the truck.
Both drivers asserted that the other driver had caused the accident. Mason claimed that her car had first been hit from the rear, then pushed in front of the truck and hit again in the left side. Her theory, confirmed in part by a statement Ditzel made to an insurance adjuster six months after the accident, was that Ditzel had been changing lanes from left to right when his truck rear-ended her car.
Ditzel claimed at the trial that Mason pulled in front of him, apparently in the process of changing from the curb lane to the center lane, and that he never saw her car until it was on the left side of his truck. In his 1988 statement to the insurance adjuster, however, he said:
Well, see I was changing lanes. I had my turn signal on and I was gonna change lanes and apparently she didn’t see that or something. I don’t know .... I was changing to the righthand lane.
The point of contention at the trial, then, was whether Ditzel was changing lanes from left to right and in doing so ran into the rear of Mason’s car, or whether Mason was changing from the curb lane to the center lane and in doing so hit the right front bumper of Ditzel’s truck.
Testimony on this point is conflicting. At the trial, Mason said that she had moved from the curb lane to the center lane to avoid traffic going into McDonald’s; then she saw the truck behind her:
Already he’s coming, but I stay my lane. I keep going my center lane and then I feel... just boom.... Then I turn left and just spin. ... I spin but he’s not stop. He just come and hit me; then I roll over upside down.
In the telephone interview recorded by the insurance adjuster in April 1988, Ditzel stated that he hit Mason’s car from behind:
Interviewer: And she struck your vehicle?
Ditzel: No. I hit her from behind.
Interviewer: What part of her vehicle was hit?
Ditzel: Well I... I don’t... I guess right in the back end and she was kind of at an angle. It spun her sideways. ... And I hit her in the back. It spun her sideways and then she went sideways in front of the truck. I was pushing her down the road. Then I realized there was something in front of me, so I hit the brakes on the truck cuz I couldn’t see her car cuz, you know, it was hidden down under my hood.
At the trial, however, Ditzel stated that he actually didn’t know how the accident had happened and that much of what he had told the insurance adjuster was “speculation.” He explained:
I said I was going to change lanes. I didn’t say I did change lanes.... I don’t know what happened. I don’t know where this lady came from, where she pulled out from, if she pulled out .... And from behind, I didn’t mean I hit her .... I thought she came out at an angle and I thought I might have caught her in the back.
Denman Lee, Mason’s accident reconstruction expert, testified at the trial that he believed the accident occurred because Ditzel was changing lanes and ran into the “back left rear bumper” of Mason’s car. Lee explained that Mason’s car had a “shock absorber” built into the rear bumper, which “flexed” when the truck hit it and caused the car to spring ahead of the truck at an angle. The scratches on the left rear quarter panel, he said, occurred when the bumper cover moved forward as the “shock absorber” flexed. Lee had not actually ex amined Mason’s car, but he had shown pictures of it to the Dodge dealer who provided a parts diagram of the rear bumper.
Harry Towns, a mechanical engineer who testified as an expert witness for the defense, challenged Lee’s explanation. He pointed out that if the truck had hit the left rear end or bumper of Mason’s car, the car would have moved to the right, toward the curb, and not to the left in front of the truck. Towns also said that if the truck had hit the rear end of the car, the rear bumper would have been damaged.
Towns’ theory was that Mason caused the accident by changing lanes:
Mrs. Mason was passing Mr. Ditzel on Mr. Ditzel’s right-hand side. She overtook and was passing the truck. She pulled in front of the truck and attempted a lane change, or started a lane change too soon. ... The car actually ran into the truck. Her left rear door contacted the right side of the right front bumper of the truck. ... That pushed her car because her wheels were steered to the left. ... Her car went into a slight skid to the left.
Mason’s car had sustained a deep scratch on the left rear door, which was consistent with Towns’ theory. Towns also pointed out that Lee had obtained a parts diagram for the wrong model of Dodge, and that the particular model that Mason had been driving did not have a “shock absorber” or “impact absorber” in its rear bumper. Thus, Towns testified, the scratches on the left rear quarter panel could not have been caused by movement of the rear bumper cover because the 1986 Dodge Colt did not have that type of bumper.
Towns testified on the sixth day of the trial. On the seventh day, after final arguments, the jury received its instructions and retired for two hours of deliberation. Its verdict was reported in the following form:
We, the jury in the above-entitled case, find the following special verdict on the issues submitted to us:
Question 1: Was the Defendant Jon W. Ditzel negligent?
Answer: No.
Because the jury found that Ditzel was not negligent, it did not answer any of the questions about damages.
I
Did the District Court err in allowing Dr. Joseph Rich to testify as a defense witness?
Mason first questions the propriety of the District Court’s denial of her motion to exclude the testimony of Dr. Joseph Rich, a psychiatrist. Although Dr. Rich’s testimony ostensibly concerned damages, it was also relevant to Mason’s credibility as a witness and will be considered here in that context.
Trial had originally been set for October 28,1991, and the parties had agreed that the respondents would disclose the identity of their expert witnesses and the subject matter of their expected testimony at least nine weeks in advance of that date, or before August 26,1991. On October 7,1991, the respondents notified Mason for the first time that they intended to use Dr. Joseph Rich as an expert witness. The notice included a three-page report from Dr. Rich, summarizing his analysis of Mason’s medical history and indicating a diagnosis of “somatoform pain disorder.” Mason immediately moved to exclude Dr. Rich’s testimony on the grounds that she had not been given adequate notice in view of the fact that it offered a new theory of the case and went far beyond a rebuttal of Mason’s own psychiatric witness.
The respondents countered by asserting that Mason had not responded adequately to their interrogatories in December 1990 and that they were forced to discover most of her medical records themselves. As a result, the respondents argued, they had not known until September 1991 that psychiatric testimony would be important in determining damages. Mason pointed out in her reply, however, that she had identified her only psychiatric medical provider, Dr. Duncan Burford, in December 1990, and that the respondents had offered no reason for failing to depose Dr. Burford before September 1991. Mason had consulted Dr. Burford after the accident because she was having nightmares and was afraid to drive. Dr. Burford diagnosed post-traumatic stress syndrome.
On October 18,1991, Judge Maurice R. Colberg, Jr. postponed the trial until November 18, 1991. He denied Mason’s motion to exclude Dr. Rich’s testimony, reserving to Mason any objections her counsel might make to the content of that testimony during the trial and indicating that the court would consider further motions for a continuance if Mason needed more time to prepare for trial. Judge Colberg explained in his Order that Mason’s failure to make complete disclosure of past medical providers had “started a sequence of late discovery of medical information,” which “to some degree led to the late disclosure of Dr. Rich as a proposed expert witness by defendants.”
Questions of admissibility of evidence are left to the sound discretion of the trial court, subject to review only in the case of manifest abuse. Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 86, 721 P.2d 303, 315. Further, the testimony and opinions of qualified experts are admissible whenever they will assist the jury in understanding evidence that is beyond the jury’s experience. Wacker v. Park Rural Electric Cooperative, Inc. (1989), 239 Mont. 500, 783 P.2d 360; Rule 702, M.R.Evid. Here, Dr. Rich, as Medical Director of Psychiatric Services at Billings Deaconess Hospital, was qualified as an expert for purposes of evaluating the post-traumatic stress disorder of which Mason complained. Because the trial was continued, Mason had ample time to depose Dr. Rich and prepare for cross-examination. We hold that the District Court did not abuse its discretion in denying Mason’s motion to exclude Dr. Rich’s testimony.
During the trial, Judge Colberg denied Mason’s motion to limit Dr. Rich’s testimony and overruled her objection to admission of her medical records. Although these actions did not rise to the level of error required for reversal, because “a reversal cannot be predicated upon an error in admission of evidence, where the evidence in question was not of such character to have affected the result in the case,” we feel that the circumstances require comment. Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 834.
Mason’s Motion in Limine concerned her scores on a Minnesota Multiphasic Personality Inventory (MMPI) administered by Richard Agosto, a clinical psychologist hired by Mason. Dr. Agosto had interviewed Mason and reviewed her medical records in October 1991. On November 7 and 8 he administered an MMPI, aided by an assistant who read the 566 questions aloud to Mason. At the trial, Dr. Agosto testified that his primary diagnosis was post-traumatic stress disorder and that he believed that Mason was still suffering from this disorder.
On cross-examination, Dr. Agosto interpreted Mason’s MMPI scores, indicating that Mason had scored at or above the 95th percentile (that is, higher than 95 percent of the total population) on six scales, labelled as follows:
Hypochondriasis
Depression
Hysteria
Schizophrenia
Paranoia
Potential Drug or Alcohol Dependency
Dr. Agosto explained on redirect examination that these terms were developed in 1940 and no longer mean what they meant then (e.g., “schizophrenia” in the MMPI reflects “mental confusion and perhaps memory difficulties, concentration problems” but does not mean that the person taking the test is schizophrenic). He concluded that the MMPI results were consistent with a diagnosis of post-traumatic stress disorder and said that he had found no basis in Masons’ record as a whole to indicate somatoform pain disorder.
After Dr. Agosto testified, the respondents notified Mason that their psychiatrist, Dr. Rich, would testify on the following day to the effect that the results of the MMPI were consistent with and supported his opinions concerning Mason. Mason immediately filed her Motion in Limine, seeking an order that would prevent Dr. Rich from discussing the MMPI results in his testimony on November 26. She argued that she had not had adequate notice and would be unable to prepare for cross-examination. Judge Colberg denied the motion, based on his understanding that “the ultimate conclusion Dr. Rich is making in this case is the same as apparently he made in a deposition and apparently he made in a [pre-trial] report, although I don’t have that information furnished.”
In his pretrial report, however, Dr. Rich stated, for example, “Mrs. Mason appears to have a tendency towards exaggeration,” and that she “has always experienced significant emotional problems.” In contrast, he testified on the sixth day of the trial that his computer analysis of her MMPI responses showed that Mason “has significant hysterical features;” is “immature, egocentric, and dependent;” and is “likely to have a long history of developing functional somatic complaints during periods of stress;” that “mild paranoid features are likely [with] potential for ... projecting blame and hostility onto others;” and that “substance abuse may be a problem.”
Although Dr. Rich stated that the MMPI results were consistent with the opinion he had already reached as to Mason’s psychological condition, that is, that she had a long-term “somatization disorder” rather than post-traumatic stress disorder, his testimony expanded the definitions of Mason’s scale scores and made them directly relevant, not to any injuries that might have been caused by the accident, but to her credibility as a witness. Thus, there is merit in Mason’s argument, in her brief supporting her Motion in Limine, that new conclusions and opinions would emerge from Dr. Rich’s testimony regarding her MMPI scores.
The rest of Dr. Rich’s testimony was based on his review of Mason’s medical and dental records, dating back to 1977, and the depositions of several of her doctors, including Dr. Burford, the psychiatrist. Despite Mason’s objections, Judge Colberg admitted all of these records and depositions, representing approximately thirty-three medical or dental providers, as evidence. Dr. Rich read selections from these records to the jury during direct examination, emphasizing occasions on which the physician either had been unable to resolve her complaint or had prescribed tranquilizers and pain medication. He diagnosed “somatization disorder” and suggested that with patients of this type, “once litigation has begun, it’s extremely difficult to get really good, hard objective data out of a patient.... [I]t’s a matter of saving face.”
Mason had objected before trial to admission of her medical records through the videotaped deposition testimony of Dr. Maurice Smith, a neurologist. In her brief in support of her Motion to Exclude Medical Records, she argued that Dr. Smith’s reading of the records amounted to testimony lacking foundation and calling for hearsay and would expose the jury to irrelevant or prejudicial evidence. The court denied this motion on the grounds that Dr. Smith had reached a conclusion based on the records, and overruled Mason’s objection at trial to Dr. Rich’s reading of the same records.
In the past we have upheld admission of medical records when the testifying physician was also the attending physician who had been responsible for the patient’s care. Klaus v. Hillberry (1971), 157 Mont. 277, 485 P.2d 54; Matter of G.S. (1985), 215 Mont. 384, 698 P.2d 406; Garza v. Peppard (1986), 222 Mont. 244, 722 P.2d 610; Palmer by Diacon v. Farmers Ins. Exchange (1988), 233 Mont. 515, 761 P.2d 401. In Garza, we found that an attending physician’s testimony based on another doctor’s records was within the hearsay exception in Rule 803(4), M.R.Evid., which provides that statements made for purposes of medical diagnosis are excluded from the hearsay rule. Such testimony is also admissible under Rule 703, M.R.Evid., which allows an expert to testify based on inadmissible data if the data are of a type reasonably relied on by experts in that particular field in forming opinions on the subject.
Here, Dr. Rich was not Mason’s attending physician and in fact had never met her, much less examined or treated her. His reading of her medical records therefore was not within the hearsay exception in Rule 803(4), M.R.Evid. Dr. Smith also was not Mason’s attending physician, though he did examine her for approximately two hours. In both cases, however, the records were admissible under Rule 703, because Dr. Rich and Dr. Smith were experts who had followed the practice of medical experts in basing their opinions on medical records. Matter of G.S., 698 P.2d at 409. We hold, therefore, that the District Court did not abuse its discretion in allowing both doctors to read Mason’s medical records aloud.
We will not disturb a jury verdict when substantial, credible evidence exists to support that verdict. Palmer, 761 P.2d at 404; Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. While the disputed testimony tended to confuse the issues and may have misled the jury, the police testimony and photographs alone provide sufficient evidence to support the jury’s verdict. “In making our determination on sufficiency of the evidence, we are constrained to view the evidence in a light most favorable to the prevailing party.” Gass v. Hilson (1990), 240 Mont. 459, 462, 784 P.2d 931, 933.
Further, where the record presents conflicting evidence, as it does here, and the jury resolves that conflict, this Court is precluded from disturbing the verdict. Lauman, 626 P.2d at 833. Here, the jury resolved conflicts between Mason’s and Ditzel’s versions of the accident, and between the parties’ two accident reconstruction experts, in Ditzel’s favor. Viewed in a light most favorable to the prevailing party, the evidence clearly supports that resolution and the jury’s verdict. See Whiting v. State (1991), 248 Mont. 207, 213, 810 P.2d 1177, 1181 (“The credibility and weight given to conflicting evidence is within the jury’s province.”).
II
Did the District Court err in denying Mason’s motion for mistrial after an officer of Empire Sand and Gravel Company spoke with jurors during the trial?
At the noon recess on November 22, 1991, the fifth day of the trial, Mason observed Sandra Reiter, secretary-treasurer and one of the owners of respondent Empire Sand and Gravel Company, Inc., talking with three jurors in the hall near the elevators. She heard Reiter say something like, “Isn’t this incredible,” to which a juror responded “yes” and laughed. Counsel met with Judge Colberg in chambers, and Mason’s attorney moved for a mistrial. Still in chambers, without the lawyers, Judge Colberg questioned Mason, Reiter, and two of the three jurors involved.
Reiter had been sitting at the counsel table throughout the trial and had been introduced to the jury during voir dire. She told Judge Colberg that the exchange in the hall had concerned a suspected rapist thought to be roaming the downtown Billings area. The three jurors had been discussing possible safety precautions in getting to the parking garage, Reiter said, and she had commented, “Yes, it’s kind of incredible, isn’t it? I just learned about it last night.” She also told the judge that earlier in the trial she may have spoken to a juror on the way to the garage, responding to a comment about the weather.
Reiter identified two of the three jurors involved in the conversation about the rapist: Joanne Sheridan, who was to be the jury foreman, and Tana Hansen. Judge Colberg interviewed Sheridan in chambers. She confirmed Reiter’s impression of the noon recess conversation and added that “If one of us talked to her, it was a case of we were talking and she interjected.”
Sheridan had stated in voir dire that she was acquainted with Reiter in a work-related context, which may explain why Reiter was able to identify Sheridan as one of the jurors involved in the conversation. When Judge Colberg questioned Reiter as to the identity of the three jurors, she said, “Joanne Sheridan and I believe it was Mrs. Hansen and I’m not sure who the rest of them [were].” Judge Colberg interviewed another juror, Kay Bums, tentatively identified by Joanne Sheridan as having been in the group near the elevator. Burns remembered the conversation about the rapist but did not recall any exchange with Reiter.
In chambers with counsel, Judge Colberg summarized his interviews with Sheridan and Burns. Mason’s attorney, Michael Eiselein, then moved for a mistrial on the grounds that the conversation in question “may have tended to establish some rapport” between Reiter and the women jurors, “who were discussing a common concern of women.” Judge Colberg denied the motion, based on his perception that any conversation that may have occurred between Reiter and the jurors consisted of a “general comment,” unrelated to the trial, and on his belief that the incident had not prejudiced the jurors.
Mason relies on Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 717, and State v. Eagan (1978), 178 Mont. 67, 582 P.2d 1195, for the proposition that any misconduct tending to injure a party is presumed prejudicial, though the presumption may be rebutted. In those cases we recognized a fundamental right to an unprejudiced jury and emphasized the importance of guarding jury trials from improper influences. We also said, however, that it is for the trial court to decide in each case whether prejudicial misconduct has occurred.
Here, the fact that a juror was acquainted with one of the parties was revealed during voir dire, but Mason did not challenge that juror. When the same juror was later reported to have conversed with the party in question, the court immediately conducted a thorough investigation of the incident. Based on the testimony of the juror and the party, it found no evidence that the juror and the party discussed the case and properly denied Mason’s motion for a mistrial. See State v. Counts (1984), 209 Mont. 242, 248, 679 P.2d 1245, 1248 (any presumption of prejudice arising from the unusual circumstance of a juror inviting a principal witness for lunch was overcome by the testimony of the juror and the witness prior to submission of the case to the jury); Turner v. Louisiana (1964), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (mistrial justified by continuous, intimate association throughout the trial, as opposed to a “brief encounter” between jurors and witnesses).
Mason points out that Judge Colberg interviewed only two of the three jurors known to have been involved in the exchange with Sandra Reiter and argues that the presumption of prejudice created by the conversation was not overcome, due to this failure to interview the third juror, combined with the possibility of further contact between Reiter and juror Sheridan. We find this argument unpersuasive. The record does not indicate why Judge Colberg did not interview the third juror, but it does show that he would have done so if asked. After Mason’s attorney, Mr. Eiselein, moved for a mistrial, the following conversation took place:
JUDGE COLBERG: Okay, you’ve made your motion for a mistrial. And let me ask you this. Is there any request that I make further investigation with the jurors — the remaining jurors on this panel in any way related to this issue?
MR. EISELEIN: Your Honor, I’m satisfied with the record I’ve made.
Mason’s suggestion that further contact occurred between Reiter and Sheridan is based on Reiter’s statement, quoted above, that “Joanne Sheridan and I believe it was Mrs. Hansen____” Mason concedes that if this statement does represent further contact, nothing is known about any conversation that took place. No evidence was offered to show that Reiter and Sheridan discussed the case or the trial.
We have held that when the district court has considered a motion for mistrial, this Court will not lightly disturb its ruling. “To overthrow it this Court must be shown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court’s ruling.” Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18. No such evidence has been produced here, and no prejudice to Mason has been established. The appearance of impropriety is not a sufficient basis for reversal. Counts, 679 P.2d at 1249.
AFFIRMED.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY and WEBER concur.
|
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] |
JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from an Eighth Judicial District Court, Cascade County jury trial award of $2,000,000 in a medical malpractice action. We affirm.
There are several issues on appeal:
1. Did the trial court err in disallowing expert opinion testimony by Dr. Davis?
2. Did the trial court err in admitting the photographs of the pathology slides?
3. Was there improper jury voir dire?
4. Were improper comments made by the trial court?
5. Did the trial court err regarding the direct examination of Dr. Callender?
6. Did the trial court properly instruct the jury?
7. May Callender impeach the jury verdict through affidavits?
Debra O’Leyar (Ms. O’Leyar) is a woman with Hidradenitis Suppurativa (HS), a disease of the apocrine glands. HS results in abscesses and boils which can be quite uncomfortable or painful. When Ms. O’Leyar went to her gynecologist, Dr. Dennis Callender (Dr. Cal-lender), in July of 1988 for her regular yearly checkup, she was suffering from the symptoms of HS. Dr. Callender noticed an HS lesion and the two discussed treatment for the outbreak of HS. Dr. Callender referred Ms. O’Leyar to Dr. Baldridge, a Great Falls dermatologist, who referred her back to Dr. Callender.
Dr. Callender ultimately performed laser surgery on Ms. O’Leyar to remove areas of HS infection. The night before surgery, as instructed by Dr. Callender, Ms. O’Leyar used a magic marker to mark the places in her groin area where she could feel HS. There was a dispute concerning whether Dr. Callender excised the area that Ms. O’Leyar marked or a larger area. The surgery was conducted and thereafter, Ms. O’Leyar had severe complications, resulting in anal stenosis and fecal incontinence.
I
Did the trial court err in disallowing expert opinion testimony by Dr. Davis?
Dr. Davis, Callender’s chief expert, was not allowed to give testimony concerning nerve damage affecting the sphincter muscle. Upon Callender’s counsel asking the following question, O’Leyar’s counsel objected: “If the testimony was that Dr. Callender injured nerve fibers, and that the injury of these nerve fibers rendered the entire surface of the nerve — service of the nerve to the sphincter muscle making it dysfunctional, would you agree or disagree?” O’Leyar’s counsel requested voir dire to establish a foundation for Davis to testify concerning the sphincter muscle. O’Leyar contended that because of Davis’ earlier deposition statement, he was incompetent to testify regarding the sphincter muscle. Dr. Davis had previously stated that “the sphincter muscle is a very complex system, which I have not studied in a long time, so, I am sorry, I am incompetent in that area.”
Callender’s counsel argued that the question was permissible because he was actually asking questions about the pudendal nerve, which services the sphincter muscle. The court, however, concluded Dr. Davis was incompetent in this area by his own admission and could not testify in that particular area. Callender’s counsel requested to make an offer of proof and this was done in chambers.
Was Dr. Davis incompetent to testify regarding the sphincter muscle? Even though Dr. Davis may deal with the pudendal nerve in his work, he was asked to talk about the nerve in its relation to the sphincter muscle. Dr. Davis specifically stated that he was incompetent to testify concerning the sphincter muscle. “[T]he party presenting a witness as an expert must establish, to the satisfaction of the trial court, that the witness possesses the requisite knowledge, skill, experience, training, and education to testify as to the diagnosis and treatment in question....” Glover v. Ballhagen (1988), 232 Mont. 427, 430, 756 P.2d 1166, 1168. “[T]he determination of the qualification of a skilled or expert witness is a matter largely within the discretion of the trial judge and, in the absence of a showing of abuse, ordinarily will not be disturbed.” Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 369. We conclude the trial court did not abuse its discretion.
II
Did the trial court err in admitting photographs of the pathology slides?
Pathologist, Dr. Dachs, made slides of the tissue removed from Ms. O’Leyar shortly after the laser procedure and issued a pathology report concerning the tissue slides. At a later date, Ms. O’Leyar’s attorney contacted Dr. Dachs and asked him to review the slides for the presence of nerve fibers or muscle bundle. Dr. Dachs viewed the slides again and reported to Ms. O’Leyar’s counsel, via a letter, stating that he had seen nerve fibers and muscle bundles in the slides. Ms. O’Leyar’s counsel asked Dr. Dachs to take photographs of the slides for use at trial.
Callender’s counsel states that he learned about the letter and photographs of the slides dining the deposition of Dr. Scott on October 21, 1991. Ms. O’Leyar’s use of those photographs became an issue in chambers during the course of the trial. During this recess in chambers, Callender’s counsel stated that he made copies of the photographs within a few days to a week of Dr. Scott’s deposition and sent them to Dr. Davis. The court responded to counsel’s statement by saying “that’s 3 weeks.” Callender’s counsel responded “I am not complaining about that, I am complaining about Zander’s attack on him (Davis) and trying to impeach him for having a slightly different opinion when he did his deposition, because the slides weren’t available and that’s not fair.” The court concluded that Callender’s counsel could rehabilitate Dr. Davis by explaining that he did not have the slides when he gave his opinion during his deposition. Callender’s counsel was amenable to this and no further objection was heard.
However, by Callender’s counsel’s own admission, the photos were known and available to him within at least 15 days before trial. According to the pretrial order, dated August 6, 1991, the trial was rescheduled and all discovery was to “be completed 15 days prior to the trial.” Even if it took Callender’s counsel a week to prepare copies of the photographs, the pictures would have been available to the defense 15 days before trial and within the calendar scheduled in the pretrial order.
III
Did the court allow improper voir dire?
Ms. O’Leyar’s counsel discussed Ms. O’Leyar’s HS condition, her past successful treatment of that condition and Dr. Callender’s treatment of the HS by using laser surgery. He also related that Dr. Callender had never before used laser surgery for this type of procedure. Also, he described the complications of the surgery and her current life as a result of those complications. These are the salient facts that form the basis for Ms. O’Leyar’s action against Dr. Cal-lender. The judge concluded that this voir dire was within acceptable limits. “It has long been held in this state and other jurisdictions that a trial judge has wide discretion in conducting voir dire.” State v. Poncelet (1980), 187 Mont. 528, 541, 610 P.2d 698, 706.
Callender also contends that it was prejudicial for Ms. O’Leyar’s counsel to relate to the jury that the judge had previously granted summary judgment on the issue of consent to remove Ms. O’Leyar’s hemorrhoid tags. (When Dr. Callender was operating on Ms. O’Leyar’s HS areas, he removed hemorrhoid tags near her anus as a “courtesy.”) This information streamlined the issues for the jury and made them aware that they did not have to consider whether the doctor had his patient’s consent to remove her hemorrhoid tags - this issue had been previously decided. We conclude the trial judge did not err in his handling of the voir dire.
IV
Were improper comments made by the trial court?
Rule 103(a)(1), M.R.Evid., states that "... Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1)... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context...” In this case, there was only one objection to a comment made by the judge.
This objection was made to a comment which occurred during cross examination of Dr. Davis. Dr. Davis was asked his opinion concerning the depth of Dr. Callender’s surgery for the HS. Dr. Davis asked if he could use the slides to answer the question. The court replied, “Just answer the question.” Callender’s counsel then stated, “We object to that, Your Honor.” Counsel made no attempt to explain the objection or to put the judge on notice that his comments might be reviewed on appeal.
Furthermore, Rule 611(a)(2), M.R.Evid., states “... [t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (2) avoid needless consumption of time.” It is within the judge’s discretion to adjust the tempo and flow of the proceedings.
V
Did the trial court err regarding the direct examination of Dr. Callender?
Although Callender’s attorney argues that it was error to preclude examination of Dr. Callender by his attorney directly after he was examined as an adverse witness by Ms. O’Leyar’s attorney, he made no objection to the court’s action at the time. “This Court has made it clear that where a defendant does not object at trial to the remarks and conduct of the trial judge, the issue will not be considered upon appeal.” State v. Martin (1987), 226 Mont. 463, 467, 736 P.2d 477, 480.
Furthermore, Rule 611, M.R.Evid., states that “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time .... ” The Commission Comments on the rule state that “order of presentation refers to the alteration of the normal order of presentation of evidence by the parties at the discretion of the court.” (Emphasis added.)
Further comments to Rule 611, M.R.Evid. suggest that the order of trial is a matter of discretion for the court, and has been since R.C.M. 93-1901-9 and cases interpreting the statutes. Wyant v. Dunn (1962), 140 Mont. 181, 368 P.2d 917, remains as viable today as it did when it was written.
In Wyant, the Court concluded that the trial court did not abuse its discretion when it denied the defendant the right to reexamine the defendant immediately after an adverse examination by the plaintiff. The defendant was called by his counsel later that day and he was examined fully as to his examination as an adverse witness. Wyant, 368 P.2d at 920-921.
The trial court may use its discretion to rearrange the order of the trial. In fact, Callender was called the very next day and was given a full opportunity to provide testimony and evidence to support his case as well as to counter the plaintiff’s case.
VI
Did the trial court properly instruct the jury?
Callender argues that the “mere fact of injury” instruction should have been given to the jury because there was no instruction given to prevent the jurors from believing “that because the injuries were so severe, there must have been negligence.” Ms. O’Leyar counters that the instructions provided still made her prove that Callender “violated the standard of care described in these instructions or that he failed to obtain informed consent” and that these instructions set forth appropriate Montana law and were not objected to at trial.
We conclude that the jury instructions were properly given. Instruction 11 states “[pjlaintiff contends that through his failure to provide proper care in operating on plaintiff, that defendant was negligent, and this negligence caused her damages. In this regard, plaintiff has the burden or proving:
“(1) That the defendant was negligent.
“(2) That the plaintiff was injured.
“(3) That defendant’s negligence was a proximate cause of plaintiff’s damage.
“(4) The amount of money that will compensate the plaintiff for her damage.”
This instruction Informs the jury that if the defendant fails to provide “proper care” to the plaintiff, then he has been negligent. It establishes a threshold over which the plaintiff’s proof must pass before the doctor is considered “negligent.” This threshold is clearly more than presenting a severe injury and expecting the jury to believe that the injury must be the result of negligence merely because of its severity. The plaintiff must prove that the doctor did not provide “proper care.”
Instruction 13 provides: “[fit is the doctor’s duty to use that skill and learning as ordinarily used in like cases by other doctors practicing in that same specialty and who hold the same national board certification, at the time the services were provided. The violation of this duty is negligence.” This instruction also supports the argument that the defendant is not negligent unless he fails to give proper care and uses skills comparable to other doctors in good standing.
Instruction 17 advises the jury that the proper test for determining negligence in a doctor’s actions is “whether the doctor’s performance met the accepted standards of skill and care . . .” The instructions given were sufficient.
VII
May Callender impeach the jury verdict through affidavits?
Rule 606 concerns the competency of juror as witness and is at issue here. Rule 606 (b), M.R.Evid. provides:
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.
Callender contends that the jury considered extraneous matters during its deliberations and therefore, the case should be remanded for a new trial. We disagree with Callender.
Rule 606(b) contemplates that a juror may not testify upon matters occurring during the jury’s deliberations or anything upon his or other juror’s minds, emotions or mental processes that is connected with reaching a decision on the verdict. The rule is concerned with extraneous information brought to the attention of the jury. Examples of extraneous information include: comments by the bailiff, telephon ing a relative for information, and visiting the scene of an accident. See Henrichs v. Todd (1990) 245 Mont. 286, 800 P.2d 710; Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 P.2d 316; Goff v. Kinzle (1966), 148 Mont. 61, 417 P.2d 105.
However, in this case, we are not concerned with extraneous information — there is no allegation that someone outside of the jurors discussed jury issues with the jurors. What the defendant wants this Court to consider are the internal mechanisms of the jurors’ decision making process. This is improper according to Rule 606(b), M.R.Evid., which does not allow juror testimony regarding the thought processes of the jurors during deliberation.
“Internal” processes are out of the reach of juror affidavits which impeach the jury verdict. As we stated in Harry v. Elderkin (1981), 196 Mont. 1, 8, 637 P.2d 809, 813, “[wjhere external influence is exerted on the jury or where extraneous prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment if either party was thereby deprived of a fair trial. ... (Citations omitted.) On the other hand, juror affidavits may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law.” (Emphasis added.)
AFFIRMED.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
Patty Dicken brought this action against the defendants, from whom she had leased office space, claiming breach of contract, forcible entry, wrongful eviction, and conversion of personal property. The District Court for the Fourth Judicial District, Missoula County, denied Dicken’s request for a preliminary injunction preventing the defendants from leasing the office space to others during this lawsuit. Dicken appeals. We affirm.
The issues are:
1. Did the District Court err when it held Dicken would not suffer irreparable injury and refused to enjoin defendants from leasing the subject premises to others?
2. Did the court err by limiting Dicken’s remedies to monetary damages?
3. Did the court exceed the scope of the preliminaiy injunction hearing?
On January 24, 1992, Patty Dicken entered into a two-year lease agreement to rent commercial office space in the Professional Village Complex in Missoula, Montana. Defendants William A. Shaw and Anne M. Shaw owned the Complex, which was managed by Missoula Realty. Defendant Frank O. Williams owned Missoula Realty.
Dicken planned to open a business to be called “A Pregnancy Solution,” which she initially described to Williams as a pregnancy counseling service. The office space Dicken rented was adjacent to office space rented by Blue Mountain Clinic, a tenant of the Complex which provided abortion services. Afew days after Dicken entered her lease with defendants, an article appeared in the local newspaper describing Dicken’s business as an “anti-abortion center.” Defendants became concerned. They retained an attorney who asked Dicken for written assurance that she would violate no laws in the operation of her business, that she and her staff would not harass employees, clients, or customers of other tenants, and that she and her staff would not trespass upon the leased premises of other tenants. Dicken refused to give such written assurances.
On February 14,1992, the defendants had the lock changed to the office space Dicken had rented so that she could not enter it. Dicken then filed this lawsuit. She asked for specific performance of her rental contract with the defendants, money damages, costs and attorney fees, and an injunction preventing the defendants from leasing the premises to others during the term of her lease.
Dicken also requested a preliminary injunction to prevent the defendants from renting the space to anyone else while this action is pending. After a hearing on that request, the District Court found that Dicken had not met her burden of proving that she would suffer great or irreparable injury if she were not granted possession of the premises or if the defendants were not enjoined from leasing the premises. The court stated that it appeared monetary damages would fully compensate Dicken if the facts and circumstances of the case are ultimately determined in her favor. In addition, the court ordered that Dicken’s personal property be removed from the premises and returned to her.
I
Did the court err when it held Dicken would not suffer irreparable injury and refused to enjoin defendants from leasing the subject premises to others?
(1) The standards for whether a preliminary injunction should be granted are set forth at Sec. 27-19-201, MCA. Dicken argues that she is entitled to a preliminary injunction under subsections (2) and (3) of Sec. 27-19-201, MCA:
An injunction order may be granted in the following cases:
(2) when it shall appear that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;
(3) when it shall appear during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant’s rights, respecting the subject of the action, and tending to render the judgment ineffectual[.]
This Court’s standard of review of an order granting or denying a preliminary injunction is whether the trial court abused its discretion. Porter v. K & S Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839.
Dicken argues that she will be irreparably harmed if the defendants are allowed to lease the office space to another tenant because the location next to Blue Mountain Clinic is unique and ideal for her services. However, her testimony at the hearing contradicted this argument. She testified on both direct and cross examination that the features of this office space which were important to her were the amount of rent charged and the size of the space:
Q. Once you leased and possessed unit 14 would you tell us whether or not you believed there was any other location in Missoula which would serve your center’s purposes better than unit 14?
A. I believe it was the only location that would serve its purpose. Q. And why is that?
A. Strictly because of the deal I got. There’s no other office space available in town that you could get that cheap.
Q. Now, if it’s fine to look at downtown space, how is it now that unit number 14 is so unique that you don’t really want —
A. The price, the lease itself. 350 for utilities paid and the size of the office space.
Q. So it’s your testimony then that the real uniqueness of this space is the monetary advantage?
A. Uh-huh.
Q. And if you could find other space that was that cheap and had that square footage, then that would be fine, too?
A. Yes, it would.
Q. I guess I’m a little bit confused. If you’re not going to physically interfere with patients who are going to utilize the [Blue Mountain Clinic] facility, then why does location matter? If you’re going to reach these people through advertising and through churches, then what difference does proximity to the clinic make?
A. It doesn’t. Like I said, so far as to me being at Blue Mountain, yes, they do abortions and maybe the women will see us. The location itself, yes, is important. If I could have found — If there was an office space open to Western Montana Clinic, you know, it doesn’t —
Q. So the fact that it’s [Blue Mountain Clinic] there, really isn’t important because you’re not planning to go out and intercept these people. You’re planning —
A. No.
Q. Your plan was to advertise and reach them through other means; is that correct?
A. Yes.
Q. So location really isn’t that important to you?
A. Not too important, no.
In her testimony, Dicken did not identify any attributes of the leased premises that singularly fit her proposed business other than her belief that the property was less expensive than other similar property. If the defendants are found to have breached the lease by changing the locks, it appears Dicken can be adequately compensated for that breach through monetary damages.
Money damages are not considered “irreparable harm” because money damages may be recovered in an action at law without resort to equity. New Club Carlin v. City of Billings (1989), 237 Mont. 194, 196-97, 772 P.2d 303, 305. Therefore, we conclude that Dicken has failed to prove that she will be greatly or irreparably injured if the defendants rent the office space to someone else during this litigation. Similarly, Dicken has not shown, as would be necessary to justify a preliminary injunction under Sec. 27-19-201(3), MCA, that renting the office space to another tenant during this litigation will tend to render the potential judgment ineffectual, because she has not shown that she has been damaged other than monetarily.
We hold that the District Court did not abuse its discretion in ruling that Dicken would not suffer irreparable injury and in refusing to enjoin defendants from leasing the subject premises to others while this litigation proceeds.
II
Did the court err by limiting Dicken’s remedies to monetary damages?
The District Court stated “it appears to the Court that monetary damages would fully compensate Plaintiff if the facts and circumstances of this case are ultimately determined to be in her favor.” Dicken contends her remedies have been prematurely limited before trial.
The District Court’s statement is clearly not a final ruling on the extent and type of Dicken’s damages. It is only a statement of her failure to prove entitlement to injunctive relief and does not preclude proof of other damages at trial. We hold that the court’s statement was not error.
Ill
Did the District Court exceed the scope of the preliminary injunction hearing?
Dicken argues that the court erred when it ordered removal of her personal property (a large file cabinet, books, videos, a fetal model kit, and posters) from the office space she had rented from the defendants. She states that this relief was not requested by the defendants and that the defendants did not prove that irreparable injury would result if her property were allowed to remain there. Also, she argues that the court should not have changed the status quo and that she was the last party in legitimate possession of the property.
A court should act to preserve the status quo only after the applicant has made a showing that he or she will be irreparably injured if an injunction is not granted while the matter is being litigated. Porter, 627 P.2d at 839. As discussed above under Issue I, Dicken has not made such a showing of irreparable injury.
Defendants point out that it is the duty of the court to minimize injury to all parties. Porter, 627 P.2d at 840. At the time of the hearing on her motion for a preliminary injunction, Dicken was locked out of the premises where her personal property remained. At the hearing, the District Court determined that Dicken had shown no reason why the premises could not be leased to others. We hold that the District Court did not err in then acting to protect Dicken’s personal property by ordering the defendants to arrange to have it returned to her.
Affirmed.
JUSTICES HARRISON, HUNT, McDONOUGH and GRAY concur.
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The plaintiff, Florence H. Yates, brought this action against the defendants Commercial Bank & Trust Company, hereafter referred to as the bank, and Ed. Brannin, sheriff of Sweet Grass county, to recover damages for the conversion by the defendants of sheep, cattle, pigs and other personal property of which the plaintiff says she was the owner and in possession on May 21, 1925, the date of the alleged conversion. The defendants admit taking the property but deny it was the property of the plaintiff or that she was lawfully possessed of the same or entitled to its possession, and they allege that in the year 1923, or at some time prior thereto, plaintiff and her husband conspired to defraud the defendant bank and the other creditors of the husband; that pursuant to the conspiracy the husband pretended to transfer to plaintiff a greater portion of his personal property; that no consideration was paid therefor by the plaintiff; that the alleged transfer was not accompanied by an immediate delivery and was not followed by an actual or continued change of possession of the property transferred. They further allege that thereafter other personal property was purchased and taken in the name of the plaintiff but was paid for out of proceeds derived from the farming and livestock operations of plaintiff’s husband. They also allege that the property taken was the property of the husband. These allegations were denied by reply.
The jury found a verdict for the plaintiff, upon which judgment in her favor was entered. The appeal is from this judgment, after defendants’ motion for new trial was denied.
In 1917, at the age of eighteen years, the plaintiff married and went to live with her husband upon a dry' land farm near Gibson. In the next seven years she bore five children. The farm consisted of 160 acres owned by Mr. Yates, of which 85 or 90 were in cultivation, and two other tracts which he possessed under contracts of purchase, one from the Northern Pacific Kailway Company, and the other from the state. Some of the Northern Pacific land was under cultivation.
In 1920 Tates owed the bank $4,800, evidenced by a promissory note. From time to time thereafter the bank took from him new notes, including accrued interest. In August, 1922, Tates gave a statement to the bank in which he said he owned, among other things, 480 acres of land, ten horses,, thirteen cattle, 100 hogs and four sheep. None of this property was transferred to the wife, nor is any of it involved in this lawsuit so far as the record discloses.
In December, 1923, Yates’ note amounted to $6,104.66, and as security the bank had a chattel mortgage on the, stock and personal property which Yates had upon the ranch, and also had assignments of his real estate contracts. The chattel mortgage did not cover any of the property involved in this suit.
In 1918 a neighbor gave plaintiff two motherless lambs, a ewe and a buck, which she raised. The next year the ewe produced a lamb and the neighbors gave plaintiff several more. In 1920 she purchased two cows from Mr. Mo, for $275, and paid him the money. He gave her a bill of sale. In 1922 she traded one of these cows for sheep. She sold most of the wether lambs. In the winter of 1922 she bought fifty sheep from Andrew Thompson. In payment she gavé him a note for $150 secured by chattel mortgage upon the sheep purchased. This note she paid in the year following from proceeds of wool sold by her. The note was produced in evidence. In 1923 for the first time she made a return to the assessor, in which she stated her ownership of sixty-three head of sheep.
On December 1, 1923, she opened an account with the Scandinavian Bank of Big Timber. This she did by giving to that bank her note for $50, and depositing the amount. She borrowed additional amounts from time to time, deposited the sums borrowed, and made other deposits. She checked upon the account herself and permitted her husband to check in her name. Most of the checks were for provisions and clothing for the family. Some were for sheep purchased.
Plaintiff testified she milked the cows herself, sold cream and made butter which she sold. She also raised turkeys and chickens, from which she obtained small sums of money. She obtained some pigs and cared for their increase. Her principal sources of income were from the sale of wool, sheep, pigs, cream, butter and poultry, but she received small amounts of money from her father, aggregating about $100 over a period of two or three years, and also about $225 from a great-uncle. Most of the money she received from her great-uncle she placed in the bank.
In 1921 she bought forty-five sheep from Oscar Bostad, and fifty-two from Swen Thompson. She also purchased two bucks from J. L. Bapstad. These were paid for by checks issued in her name by Mr. Tates. In the summers of 1923 and 1921 the sheep were kept upon the ranch most of the time but were herded part of the time along the road and upon adjacent land. Plaintiff said: “I stayed with them most of the time, the children and I together. I hired a little boy to herd them part of the time.’-’ She rented some pasture land some, miles away from her home and the sheep were herded there. Her husband’s time was taken up with his farming operations.
It is true that the livestock in question were cared for upon the ranch and were fed from the products of the ranch. Undoubtedly the husband joined with the wife in caring for a portion of the livestock. Counsel for defendants insist that many indicia of fraud were shown. They assert that the purchases were made entirely by the husband and in such a way that the wife was practically unknown in the transaction, but this the record does not sustain. For instance, with respect to the purchases of sheep from one Magelssen, the plaintiff testified that she had spoken to Magelssen about the sheep before the purchase was made. She gave her husband the money to pay for the sheep and he told Magelssen his wife was buying them and requested a bill of sale in her name. When the sheep were purchased from Bostad plaintiff and her husband were present and both walked out to see them. Mr. Yates examined the mouths of the sheep. Plaintiff was present when the deal was closed. Upon an occasion when two bucks were purchased Mr. and Mrs. Yates were sitting in an automobile, Mrs. Yates holding a baby. It was not convenient for her to write the check so her husband wrote it.
Plaintiff purchased a second-hand automobile, which was used for family purposes, this being operated frequently by the husband.
The court gave numerous instructions in which the jury was told, without objection, that all of the property owned by a wife, before her marriage, and that acquired by her after-wards, is her separate property, and in no case shall any of the separate property of the wife be liable for the debts of the husband unless such property is in the sole and exclusive possession of the husband, and then only to such persons as have dealt with the husband in good faith and on the credit of such property without knowledge or notice that the property belonged to the wife. That the earnings and accumulations of the wife are not liable for the debts of the husband. That either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property which either might enter into if unmarried. That while the laws of Montana permit a husband and wife to deal with each other in business transactions, such dealings are always subject to close scrutiny, especially when one of them is insolvent; an insolvent debtor may not use his wife’s name as a mere device to cover up and keep from his creditors the assets and proceeds of any business or farming operations which in truth is his own. That if the jury found from the evidence that any of the property in question was in the sole and exclusive possession of the husband, and that the defendant bank dealt with him in good faith on the credit of such property without knowledge or notice that it belonged to plaintiff, its verdict should be for the defendants. That if the jury found from the evidence that the husband, while insolvent, transferred any of the property in question to his wife, for which she paid nothing, or for which she paid a consideration that was grossly inadequate, or which she accepted with the intent to delay or defraud any creditor of her husband, then as against the rights of the defendant bank such transfer was entirely void, and as to such property the jury should return a verdict for the defendants. That before plaintiff could recover in this action for any of the property described in her complaint she must prove by a preponderance of the evidence that she was the owner of such property.
Other instructions were given, including those which defendants claim were prejudicial. The points made as to these have so little merit that we shall not consume time in discussing them. Taken as a whole the defendants certainly have no cause to complain against the instructions.
The husband must support himself and wife out of his property or his labor. If he is unable to do so she must assist him as far as she is able. (Sec. 5784, Rev. Codes 1921.) Neither the husband nor wife has any interest in the property of the other, except as mentioned in the preceding section, and neither can be excluded from the other’s dwelling. (Id., sec. 5785.) Neither husband nor wife, as such, is answerable for the acts of the other, or liable for the debts contracted by the other; provided, however, that the expenses for necessaries of the family and of the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately. (Id., sec. 5790.) The earnings and accumulations of the wife are not liable for the debts of the husband. (Id., sec. 5795.)
The law makes provision for the filing of an inventory of the separate personal property of the wife (Id., sec. 5793), and also makes provision as to how far the property of the wife shall be exempt from her husband’s debts and liabilities (Id., sec. 5799), which last section provides in part: “And in no case shall any of the separate property of the wife be liable for the debts of the husband, unless such property is in the sole and exclusive possession of the husband, and then only to such persons as deal with the husband in good faith on the credit of such property, without knowledge or notice that the property belongs to the wife.”
The bank failed to prove that the wife obtained from her husband any of the property which was taken from her by the defendants, or that she obtained from her husband any of the money with which any of the property was purchased. This case is widely different from Gates v. Powell, 77 Mont. 554, 252 Pac. 377.
The statement of plaintiff’s counsel that substantially all of the property which was taken by the sheriff at the bank’s instance was acquired after the indebtedness of her husband to the bank had been incurred, is supported by the testimony.
A further discussion of the evidence would prove a profitless task. It is enough to say that after a comparison of all the testimony we are unable to say that the verdict cannot be sustained.
There were circumstances connected with the transactions of the husband and wife from which the jury might have found that the purpose of the plaintiff in doing as she did was designed to obstruct the bank in the collection of the husband’s debt, but the jury did not so find. The jury did not believe that she obtained this livestock or other personal property pursuant to any conspiracy which she had entered into with her husband fraudulently to defeat the creditors of her husband; it concluded rather that with five small children upon her hands, she was doing her utmost in carrying the family burdens in order to escape the poverty which would stare them in the face if she were compelled to rely solely upon her husband in his apparently hopeless financial condition. Upon this element of the case was not the jury justified?
The husband, after attempting to make a living for himself and family upon a dry land farm for years, had reached the end of his tether. The wife through the acquisition of a few sheep, cows, pigs, turkeys and chickens, and the exertion of her own labor, strove to assist in providing for her family the necessities of life. The story disclosed by this record is but another chapter in “the short and simple annals of the poor.”
The record does not sustain the contention of the defendants that plaintiff’s husband had the sole and exclusive possession of the personal property in question. Plaintiff and her husband were in the joint occupancy of the home ranch and as said by the supreme court of Minnesota in Kroll v. Morits, 112 Minn. 270, 127 N. W. 1120: “Where a husband and wife are living together and maintaining a joint home, it is inevitable that each will exercise more or less dominion over the property of which, irrespective of absolute title, the family has the beneficial use. So that when the question of title is presented it is one of fact, which a jury is peculiarly well fitted to pass upon.”
The jury concluded that the plaintiff had proven by a preponderance of the evidence that the property seized by the sheriff at the instance of the bank was her own property. That finding must stand.
The defendants showed that in the fall of 1925, at a time when the bank was insisting that the husband give additional security for the payment of his obligations, she executed a chattel mortgage covering a large part of the property in question here to a man by the name of Bhodin to secure the sum of $2,000. She did not receive any money from Bhodin and her explanation why she executed the chattel mortgage bears a suspicious aspect. The purpose and intent of plaintiff with respect to this matter were also peculiarly within the province of the jury.
Rehearing denied April 26, 1927.
After a comparison of all the evidence in the case it may safely be said that a verdict for either plaintiff or the defendants would not be disturbed upon appeal. In effect the jury found that the defendants had failed to prove: That a conspiracy existed between husband and wife to defraud the husband’s creditors; that the property in litigation was the property of the husband, and not of the wife; that the husband had transferred the property or any thereof to the wife, or that he had furnished her money to purchase the same; that the property was in the sole and exclusive possession of the husband; that the defendant bank dealt with the husband on the credit of such property. The trial judge confirmed the jury’s verdict. We see no compelling reason to disturb it.
The judgment is affirmed.
Affirmed.
Associate Justices Myers, Stark, Matthews and Galen concur.
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] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiff brought action in the district court of Toole county to quiet title to certain oil and gas leases covering property situated in that county. Defendant Anderson was named as one of many defendants. He was not served personally with process, but there was attempted service by publication. He made no appearance in the case. Judgment thereafter, and on January 29, 1938, went against him and some other defendants, adjudging that “they are hereby forever barred from any and all claim of right or title to the said premises or lien thereon, or interest therein, or any part thereof. ’ ’
On May 18, 1939, Anderson moved to set aside the judgment as it affected him on the principal ground that the affidavit for publication of summons was insufficient upon which to base the order of publication, and hence that the service by publication was unauthorized. The court sustained the motion and entered an order vacating and setting aside the decree as it affected Anderson. Plaintiff has appealed from the order.
The affidavit for publication of summons, so far as applicable to the point we are considering, stated: “That the following named defendants [including Anderson] reside out of the State of Montana, and cannot after due diligence be found within the State of Montana, and that the last known residence” of Anderson is Shelby, Montana.
The statute governing service of summons in a suit to quiet title is section 9482 et seq., Revised Codes. Section 9482 provides in part that “when any defendant specifically named in such complaint resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons * * * , the plaintiff * * * upon filing with the clerk of said court an affidavit setting forth the facts with reference to any of such defendants upon whom personal service of summons within the state cannot be made, within the meaning of the foregoing provisions of this section, may obtain an order for the service of summons upon such defendants last mentioned, to be made by publication. ’ ’
Section 9484 provides: “The affidavit provided for in the two preceding sections shall clearly show that the necessary facts exist, and that the plaintiff has used due diligence in all respects as to which due diligence is required in such case by the preceding sections. The facts constituting due diligence shall be set out in said affidavit.”
Section 9486 provides: “The provisions of sections 9105 to 9124, inclusive, so far as the same are not in conflict with these sections, are hereby made applicable to the action herein provided for.”
It is the contention of the plaintiff that, since the affidavit recites that Anderson resides out of the state of Montana, it meets the requirements of the statute, and there is no necessity for the affidavit to allege anything further. She relies upon the case of Ervin v. Milne, 17 Mont. 494, 43 Pac. 706. That case had to do with what is now section 9117. That section enumerates the grounds for obtaining an order for the publication of summons in the same language as does section 9482, but unlike section 9482, section 9117 provides for the issuance of an order of publication upon filing an affidavit stating “any of these facts.” That was a legislative determination that the statement that defendant “resides out of the state” is the statement of a fact. Section 9482, as affected by section 9484, requires the affidavit to “clearly show that the necessary facts exist.” The Ervin Case was not one to quiet title, and it was decided before sections 9482 et seq. were passed. Also the case of In re Baxter’s Estate, 98 Mont. 291, 39 Pac. (2d) 186, involved section 9117, and not sections 9482 et seq.
It is onr view that under section 9482 the affidavit' must show the evidentiary facts upon which the ultimate fact is asserted that the defendant resides out of the state before a valid order for publication of summons can be made. If this were not so, there would have been no occasion for section 9484. The naked allegation that defendant resides out of the state, without a statement as to where he does actually reside, is not sufficient without a recitation of facts upon which the ultimate fact is based. This is particularly true in view of the fact, as here, that it is recited that Anderson’s last known residence was Shelby, Montana, which negatives the idea that he was known to reside outside the state of Montana.
Cases from other courts are of but little aid in view of differences in the statutes of the several states. See, however, cases listed in the note in 37 L. R. A. (n. s.) 211 et seq.
The court was warranted in setting aside the judgment so far as it affects Anderson. The order appealed from is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
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] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This matter is before us on a petition for a writ of mandamus directed to the respondent, a justice of the peace of Lewis and Clark county, commanding him to proceed and dispose of a complaint made by the relator against J. Burke Clements. An alternative writ was issued and an appearance made by the respondent personally and by amicus curiae who argued the matter to the court on behalf of Mr. Clements. On the hearing the court deemed the return of the respondent insufficient, and he was given time to file an amended return. The relator filed a reply to the amended return which put in issue many fact questions.
From the record and the arguments it appears that on May 13, 1940, shortly before 5 P. M., the relator with his counsel appeared before respondent in his court and made complaint of a public offense having been committed by one J. Burke Clements. The complaint was that Clements was guilty of a misdemeanor in that he had violated the provisions of section 10786, Revised Codes of 1935. This section provides: “No holder of a public position, other than an office filled by the voters, shall be a delegate to a convention for the election district that elects the officer or board under whom he directly or indirectly holds such position, nor shall he be a member of a political committee for such district.”
The relator complained that Clements was at the time chairman of the Industrial Accident Board of the State of Montana and at the same time held the position of Democratic precinct committeeman in Precinct No. 6, Lewis and Clark county, and was also a member and vice-chairman of the Democratic State Central Committee.
The versions of what took place in respondent’s office differ. Relator states that respondent refused to consider the complaint or have anything to do with it. Respondent denies this and says he took no action on the complaint then because of other business and because it was closing time for his court, it then being 5 o’clock.
Relator’s attorney filed an affidavit to the effect that on May 14 he, with the respondent, conferred with the county attorney of Lewis and Clark county, and again -respondent stated he would have nothing to do with the matter, and that the conversation between respondent and the county attorney dealt with the political effect on them of the issuance of a warrant for the arrest of Clements. Respondent, on the other hand, denies that he had refused to take cognizance of the complaint, and states his failure to act on the 13th or 14th by examining relator or otherwise was because of the press of other business. The petition was filed in this court on May 14.
In his amended return respondent states he is proceeding with the matter; that on May 28 he examined relator under oath; that he secured from him the names of other witnesses; that he has examined five other witnesses; that he has been referred to other witnesses who reside outside of Helena whom he wishes to examine, and finally “that he has not delayed consideration of the matter and will not delay the matter in the future; that he will not take any more time than is reasonably necessary to reach a conclusion as to whether or not reasonable cause exists for the issuance of a warrant.” This amended return was made on June 6.
'While the matter has been pending here this court has not been apprised that the matter has been disposed of, and since, if the respondent has acted after that date the matter would be disposed of, and there would be no purpose in this court acting further in the matter, we must assume that the respondent is still considering the matter and that he has not disposed of it as prayed by relator, either by the issuance of a warrant or the dismissal of the complaint. In the disposition of the matter we need not determine the conflict as to either the law or the facts, for we are not concerned with either. What we are concerned with is whether a court before which a complaint is filed can indefinitely postpone taking any action at all.
The sole question before this court is: Has the delay of the respondent in acting on the complaint amounted to a failure on his part to perform his duties under section 10786, Revised Codes, and, if so, will mandamus or supervisory control lie to compel him to perform those duties ?
The sections of our Codes which must guide us in determining our action here are sections 11729 and 11730, Revised Codes of 1935. The first section provides: “Every person who has reason to believe that a public offense has been committed and that a certain person has committed such offense, must make complaint of such person before a magistrate of the township in which the offense was committed, or if there is no magistrate in such township, before the nearest magistrate.”
The relator appeared before the respondent justice of the peace pursuant to this section and made his complaint against Clements. The respondent’s duty when such complaint was made is set out in the next section (11730), which provides: “When a complaint is made before a magistrate charging a person with the commission of a public offense, such magistrate ¿must examine the complainant, under oath, as to his knowledge of the commission of the offense charged, and he may also examine any other person. If from such examination, or from any other facts which may lawfully come to the knowledge of the magistrate, it appears to him probable that the alleged offense has been committed within his jurisdiction and that the person accused committed it, such magistrate must immediately issue his warrant for the arrest of such person.”
It was the duty of the respondent as set out in this section, when the complaint was made by the relator, to examine the relator under oath as to the relator’s knowledge of the commission of the offense charged. The respondent himself admits in his return that he did not examine the relator until the 29th day of May — some two weeks after the complaint was lodged. On this latter date he secured from the relator the names of witnesses as to the alleged offense, and since that time, according to his amended return, he has examined some five or six witnesses, and has taken at least two affidavits/ This latter action is in accord with the provision of the section which provides that “he may also examine any other person.”
In examining the complainant and other persons whom he may wish to examine, it is the duty of the respondent to determine whether it is probable that the alleged offense has been committed within his jurisdiction and that the person accused committed it. It is not his duty to examine every possible person who might have any knowledge of the facts; nor is it his duty to determine, as a jury or trial court, the guilt or innocence of the person accused. The final determination of that question rests with the trial court and jury upon trial. The statute obviously, under a summary proceeding such as this, does not contemplate that the justice of the peace shall go into the matter with the thoroughness and completeness that is required in the trial of an accused person after he has been arrested.
In this case the respondent has consumed nearly two months of time to determine whether or not probable cause exists for the issuance of the warrant of arrest. To our minds the statute does not contemplate any such long drawn out investigation. The justice of the peace shall be careful not to issue a warrant for arrest where there is no probable cause to believe that an offense has been committed, or that the person accused is guilty of it, and certainly the statute contemplates that the justice of the peace take a reasonable time in disposing of the matter.. But it is not the intention of the statute that a justice of the peace should spend months of time and examine a great number of witnesses before taking action either by dismissing the complaint or by issuing the warrant. Certainly the examination of six witnesses as to the question whether or not it is probable that Clements violated the provisions of section 10786, and the consumption of almost two months’ time in doing it should, if the respondent is acting in good faith, have brought him to a determination of the question sufficient to dispose of the complaint either by the issuance of a warrant or by its dismissal. The conduct of the respondent seems to bring this case within the oft repeated statement that “Justice delayed is justice denied.”
For the benefit of the accused, as well as the state, after this exhaustive inquiry, it would seem that immediate action on the part of respondent is required. The statute from its very terms contemplates reasonably prompt action. This is indicated, in addition to what has been said heretofore, by the requirement of the statute that, should the magistrate determine that it is probable that the offense had been committed and the accused had committed it, “such magistrate must immediately issue his warrant for the arrest of such person.”
Amicus curiae in his brief urges that mandamus will not lie against the respondent. His argument is based upon the theory that the petition of relator requests of this court a writ of mandate to compel the respondent justice of the peace to issue a warrant for the arrest of Clements. Were this the ease we would agree with counsel. The determination of the question whether or not a warrant should issue rests in the sound judicial discretion of the magistrate. However, in this case the relator does not seek of this court that it issue an order controlling the discretion of the magistrate, but merely an order commanding him to comply with the provisions of section 11730, apd act either by the dismissal of relator’s complaint or by the issuance of the warrant of arrest. It is the accepted rule that in that situation mandamus will lie. (State ex rel. Musselshell County v. District Court, 89 Mont. 531, 300 Pac. 235, 82 A. L. R. 1158; State ex rel. Brophy v. District Court, 95 Mont. 479, 27 Pac. (2d) 509, and see People ex rel. Hamilton v. Barnes, 66 Cal. 594, 6 Pac. 698, 699, where the court said: “The duties of the magistrate are pointed out in clear and distinct terms, and especially enjoined by imperative words. It is difficult to employ language more mandatory in character. As to the further duties of the magistrate, the same imperative words are used. * * ® We are of opinion that the magistrate was commanded by the law to proceed with the examination in the case before' us, and that on his failure to do so the writ asked for to compel him is appropriate.” (See, also, Benners, Justice of the Peace, v. State ex rel. Heflin, 124 Ala. 97, 26 So. 942.)
It is our conclusion, therefore, that the writ prayed for should issue. However, in view of the statements in respondent’s return and amended return to the effect that he is proceeding in his investigation of this matter and that he expects to continue to make investigation as promptly as possible, the respondent will be given ten days in which to comply with the order of the court. It is ordered that the respondent comply with the provisions of section 11730, Revised Codes of 1935, within ten days from the date of this order, and dispose of the complaint either by the issuance of a warrant of arrest of the accused or by dismissal of the complaint.
Mr. Chief Justice Johnson and Associate Justices Angst-man and Arnold concur.
|
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