text
stringlengths 11
196k
| embeddings
listlengths 1.02k
1.02k
|
|---|---|
HONORABLE J. E. ROCKWOOD, District Judge,
sitting in place of MR. CHIEF JUSTICE JOHNSON, disqualified, delivered the opinion of the court.
This action was brought by the appellant against respondent, Jardine Mining Company, a duly organized and existing corporation of the state of Montana, claiming damages by reason of permanent injuries alleged to have been suffered by the negligent treatment of his right eye by respondent and another at Jardine, in Park county, Montana.
Yesel’s amended complaint was filed October 7, 1938. A motion to strike certain allegations from the complaint was denied by the lower court. On February 20, 1939, respondent filed a demurrer which was sustained by the lower court upon which a judgment of dismissal was entered. The appellant prosecutes this appeal from the judgment of dismissal.
The complaint discloses the following facts: On or about June 2,1936, appellant was employed by respondent in a hazardous occupation as a miner, in a mine operated and conducted by respondent at Jardine, in Park county, Montana. On that date appellant was operating a drill in a stope of respondent’s mine, at which time and place a fragment of steel was knocked or chipped from the drill and struck appellant in the right eye. He continued his employment for about an hour, but his eye became painful and inflamed so that it was necessary for him to quit his work before the end of the day’s shift. He then reported his injury to respondent’s foreman, who directed him to report his injury to the' main office of the respondent. This appellant did. That upon his reporting his injury to the respondent, the respondent then voluntarily and gratuitously assumed to render medical aid and attention to appellant. It is alleged that appellant was directed and taken by respondent to one Mrs. M. O. Davison for examination and treatment; that the respondent acted in violation of its duty by sending appellant to Mrs. Davison; that respondent knew or should have known that Mrs. Davison was not qualified or competent to furnish appellant with the medical care and treatment required by the injury to appellant’s eye, and that respondent knew or should have known that to cause appellant to be treated and cared for by an unskilled, incompetent person would result in aggravation and additional injury to the eye of appellant. It is also alleged that Mrs. M. O. Davison then and there took a piece of cotton and rubbed it over and across the injured eyeball of appellant and negligently pressed the steel fragment beneath the surface of the eyeball so that it was not visible from outward inspection, and could not be felt by appellant’s eyelid. He then alleges that he went to Mrs. Davison for treatment until July 12, 1936 ; that from time to time after the injury until July 12, 1936, Mrs. Davison told appellant there was nothing the matter with his eye, that it did not need medical attention and it was not necessary to consult a physician or surgeon, and that the eye would be “all right” shortly; that he advised Mrs. Davison he could see black spots in his right eye, but she advised him the black spots would soon disappear. Appellant further alleges that he continued his employment relying upon the advice of Mrs. M. O. Davison until about July 1, 1937, when his right eye became discolored and the vision impaired; that he then consulted physicians and surgeons including the Mayo Clinic at Rochester, Minnesota, and was advised that the piece of steel was imbedded in the back of the eye; that an operation to remove the steel was attempted but failed; that he has lost the sight of his right eye and the sight of his left eye is endangered; that all the injuries of appellant were caused by the negligence and carelessness of respondent in causing appellant to be treated by an unskilled, incompetent person after voluntarily and gratuitously assuming on June 2, 1936, to render medical aid to appellant.
It is then alleged by appellant that he is a miner by occupation and not equipped nor able to follow any other gainful occupation and by reason of his injury is now totally and permanently disabled. That on and prior to June 2, 1936, appellant and respondent had elected to be and were-bound by the Workmen’s Compensation Act of the state of Montana (Rev. Codes 1935, secs. 2816 et seq.); that respondent maintained near its said mine a first aid station in charge of one Mrs. M. O. Davison in which the employees of respondent, who were injured in the course of their employment, were treated for such injuries by Mrs. Davison at the direction of the respondent.
The appellant assigns specification of errors:
(a) The court erred in making and entering the order sustaining the demurrer of respondent; and
(b) The court erred in making and entering the judgment of dismissal.
Appellant urges that his action for damages arises out of the negligence of the respondent subsequent to the accident. He makes no attempt to secure damages for the original injury occasioned by the industrial accident, but seeks damages for the injury sustained because of the negligence of respondent subsequent to the industrial accident.
Contra, the respondent maintains that the provisions of the Workmen’s Compensation Act are exclusive of every cause of action except those saved by the Act, and that appellant’s cause is not so saved, that appellant’s present physical condition is due to an aggravation of an injury that arises out of and in the course of his employment which injury was compensable under the Workmen’s Compensation Act, and that appellant is barred by the provisions of such Act from bringing an independent action against respondent, although the aggravation of the industrial injury was due to incompetent medical attention and treatment supplied by respondent.
Section 2839, Revised Codes 1935, reads in part as follows: “Where both the employer and employee have elected to come under this Act, the provisions of this Act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee, as between themselves, of their right to any other method, form or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or * * * common-law right of remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted; and such election shall bind the employee himself, and in ease of death shall bind his personal representative, and all persons having any right or claim to compensation for his injury or death, as well as the employer, and those conducting his business during liquidation, bankruptcy or insolvency. Provided, that whenever such employee shall receive an injury while performing the duties of his employment and such injury or injuries, so received by such employee, are caused by the act or omission of some persons or corporations other than his employer, and where the cause of such injury has no direct connection with his regular employment, and does not arise out of or necessarily follow as an incident thereof, then such employee, or in case of his death his heirs or personal representatives, • shall, in addition to the right to receive compensation under the Workmen’s Compensation Act, have a right to prosecute any cause of action he may have for damages against such persons or corporations, causing such injury. In the event said employee shall prosecute an action for damages for or on account of such injuries so received, he shall not be deprived of his right to receive compensation but such compensation shall be received by him in addition to and independent of his right to bring action for such damages, provided, that in the event said employee, or in case of his death, his personal representative, shall bring such action, then the employer or insurance carrier paying such compensation shall be subrogated to the extent of one-half (%) of the gross amount received by such employee as compensation under the Workmen’s Compensation Law,” etc.
Respondent, in support of its position, relies on the case of Clark v. Olson, 96 Mont. 417, 31 Pac. (2d) 283, 286. In that case the plaintiff, a city employee, while working in the ordinary course of his duty as a street cleaner, was run over and severely injured by an automobile operated by the defendant, a third party. He received compensation under the Workmen’s Compensation Act and then brought suit for damages for the negligence of the defendant, the third party. The court held that the Workmen’s Compensation Act was exclusive, that he did not have an independent action against the third party tortfeasor and the only redress he had was under the Workmen’s Compensation Act. The court said, quoting from Peet v. Mills, 76 Wash. 437, 136 Pac. 685, L. R. A. 1916A, 358, Ann. Cas. 1915D, 154: “For these reasons we are of the opinion that the compensation provided by the Act in case of injury to any workman in any hazardous occupation was intended to be exclusive of every other remedy, and that all causes of action theretofore existing, except as they are saved by the provisos of the Act, are done away with.” Respondent cites many cases from other jurisdictions in support of its position, some of which are hereinafter noted.
We do not believe respondent’s position can be maintained under the rule laid down in the Clark v. Olson Case, supra, or in any of the eases relied on by respondent. The Clark v. Olson Case gives an able analysis of the Workmen’s Compensation Act before its amendment in 1933 pertaining to tbe facts set out therein, but the facts therein differ from the facts in the instant case, and its language has no application to the facts in the case at bar.
In the case of Fitzpatrick v. Fidelity & Casualty Co. of New York, 7 Cal. (2d) 230, 60 Pac. (2d) 276, 277, the court holds that “the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or 'examination is compensable under the provisions of the Workmen’s Compensation Act and, therefore, within the exclusive cognizance of the Industrial Accident Commission.” But the California Workmen’s Compensation Act provides that the employee, upon the written request of the employer, must submit to examination by a physician selected and paid for by the employer.
Section 16 of the Workmen’s Compensation Act, Henning’s General Laws of California 1920, Hyatt, Part One, Third Edition, page 1557, reads as follows: ”16. (a) Whenever the right to compensation under this Act would exist in favor of any employee, he shall, upon the written request of his employer, submit from time to time, as may be reasonable, to examination by a practicing physician, who shall be provided and paid for by the employer, and shall likewise submit to the examination from time to time by any physician selected by the commission or any member or referee thereof.”
The respondent, in support of his contention that the Workmen’s Compensation Act of Montana is exclusive, cites Lincoln Park Coal & Brick Co. v. Industrial Commission, 317 Ill. 302, 148 N. E. 79, 82, where it is said that the plaintiff was accidentally injured “in the course of and in the line of his employment.” He was voluntarily paid compensation by the defendant. He returned to work but claimed he had only partly recovered and that he was entitled to further compensation. This was denied. Under the Workmen’s Compensation Act the plaintiff was required to submit to examination by a doctor of the employer’s selection, and if an injured employee refused to do so, his compensation would be suspended. The employee submitted to such examination during which he was severely burned by the negligence of the company doctor. In holding for the plaintiff in error, the court said: “We believe it was never contemplated that the statute should authorize the employer to compel an examination by a doctor selected by the employer to determine whether the employee is suffering any incapacity from an injury for which the employer is admittedly liable, and if the doctor making the examination, through negligence or lack of skill, inflicts an injury which causes disability, the employer should not be liable under the statute. ’ ’
In the case of Ross v. Erickson Const. Co., 89 Wash. 634, 155 Pac. 153, 154, L. R. A. 1916F, 319, plaintiff brought action for the recovery of damages alleged to have been suffered by reason of the malpractice of defendant McGillivray. The plaintiff was employed by defendant, the Erickson Construction Company, and was injured in the course of his employment. He was later taken to the hospital conducted by McGillivray and remained under his treatment for some time. McGillivray was employed to do the surgical and hospital work for the construction company and was paid for his services out of a fund made up by deducting the sum of $1 from the monthly wages of the employees. After leaving the hospital the plaintiff made claim under the Industrial Insurance Law and accepted a final award. This action was thereafter brought against the defendants for the recovery of damages in the sum of $15,000. A trial upon the merits was had resulting in a verdict for plaintiff in the sum of $1. A new trial was granted. From the order granting a new trial the defendants appealed. Appellants set up in their answer and maintained throughout the trial that no recovery could be had against either of them for the reason that respondent Harry L. Ross had been compensated for all injuries resulting from the primary injury attributable thereto. The court said:
“At the time the Industrial Insurance Law was passed, one who had been injured by or through the negligence of an employer could maintain an action and recover all damages proximately traceable to the primary negligence. If the master assumed to collect fees out of the wage of the employe for the purpose of maintaining medical and surgical treatment and hospital service without deriving any profit therefrom, he was bound to exercise due care in providing a proper place for treatment and in selecting physicians and surgeons. A breach of this duty made him liable in damages for the malpractice of the physician or surgeon. * * * Clearly the purpose of the Act was to end all litigation growing out of, incident to, or resulting from the primary injury, and in lieu thereof give to the workman one recovery in the way of certain compensation, and to make the charge upon the contributing industries alone.”
The court finally held that the Workmen’s Compensation Act was exclusive and the damages would not lie against the defendants. It will be noted in this case that the employee, after having received the original injury, was taken to a hospital operated by the employer and which employer designated and hired the physician or surgeon to look after patients who were sent to it by the company, and that the company or employer deducted a portion of the wages of each employee for the purpose of maintaining said hospital and paying their physician or surgeon who looked after the patients sent to it by said employer.
In the case of Brown v. Sinclair Refining Co., 86 Okl. 143, 206 Pac. 1042, the plaintiff, while in the employ of defendant, was engaged in painting a tank belonging to the defendant and while so engaged fell from his scaffold on which he was working, resulting in injuries to his left shoulder after which he was placed in a hospital in the city of Cushing. The defendant employed Dr. H. C. Manning to render medical aid and surgical treatment to the plaintiff. Thereafter the defendant, through its insurance carrier, paid the physician, the hospital bill, ambulance service, drug bill and nursing bill. The plaintiff filed his claim for compensation with the State Industrial Commission and the defendant through its insurance carrier paid the plaintiff various amounts at different times, and on December 10, 1916, paid the plaintiff the sum of $250.68 in full settlement of any disability thereafter to accrue which settlement was duly approved by the State Industrial Commission. Later the plaintiff instituted action against the defendant seeking damages resulting from the negligence of the physician so employed to exercise reasonable and ordinary care in examining the injured shoulder of the plaintiff in order to ascertain the extent of the injury and failing to properly set or relocate the joints of the shoulder, alleging as a result of such neglect his shoulder became deformed, causing him total loss of his left arm and shoulder, causing paralysis therefrom. Judgment was rendered for the defendant in the lower court and on appeal to the supreme court the judgment was affirmed, thereby holding that the Workmen’s Compensation Act was exclusive. But as noted above, the medical aid and surgical treatment to the plaintiff was rendered by a doctor employed by the defendant.
Respondent contends with much vigor that the present physical condition of appellant is the result of an industrial accident and that the negligence of respondent and Mrs. Davison was not the proximate cause of the injury for which any action lies but such accident was an aggravation of the original or industrial injury. Many cases have been cited by respondent in support of this contention, but a careful examination of these authorities discloses, as shown by some of the eases heretofore referred to, that they are decisions from jurisdictions where the Compensation Act requires the employer to furnish medical aid and attention and the employee to submit himself to such medical attention and examination or where he submits to the employer’s selected physician or surgeon.
It is alleged in the complaint that respondent voluntarily and gratuitously assumed to undertake to furnish medical aid and attention to the appellant and that when respondent did so voluntarily and gratuitously assume to render medical aid and attention to appellant, it then became and was the duty of respondent to use reasonable care and diligence in the selection of a physician or surgeon or competent person to render medical care and assistance of a kind and character designed to cure and relieve the condition of appellant’s right eye. Appellant claims that the negligence for which respondent is liable is, that in causing appellant to have this injured eye treated by a person not competent to do so and causing the incompetent person to render her services to appellant. The law seems to be well settled that where, in the absence of a statute or contractual obligation, a master undertakes gratuitously to furnish medical attention to an employee or servant, he is bound to exercise reasonable care in the selection of a competent physician, and if, through his failure to exercise such care and diligence, the physician or surgeon selected is incompetent and unskillful and by reason of such unskillful treatment the employee or servant is injured, the employer is liable. (Crawford v. Davis, 136 S. C. 95, 134 S. E. 247; Western Union Tel. Co. v. Mason, 232 Ky. 237, 22 S. W. (2d) 602.)
In the case of Mueller v. Winston Bros., 165 Wash. 130, 4 Pac. (2d) 854, 857, the court said: “While independent of a contract, no duty rests upon a master to furnish his servants with medical and surgical treatment, yet, if he undertakes to furnish such treatment, the law imposes upon him the duty to use reasonable care and diligence in engaging the services of a competent and skillful physician and surgeon for that.purpose. And if, through his failure to exercise such care and diligence, the physician employed is incompetent and unskillful, and through such incompetency or lack of skill in the treatment of the servant injures him, the law holds the company responsible for its failure to discharge the legal duty thus imposed upon it. Such liability rests upon a failure to discharge a duty imposed by law, and is independent of any duty arising from a contract. ’ ’
There was no duty imposed by statute or contractual obligation upon the respondent to render medical care or attention to appellant, but once having gratuitously assumed to render such services, respondent was bound to the exercise of reasonable care in the performance of the services so voluntarily assumed. When the respondent assumed gratuitously the obligation to give medical care and services to appellant it then became its duty to use reasonable care in the selection of a competent physician or surgeon or other competent or qualified person to render the kind of services and attention to the appellant’s eye that the same demanded. (Croghan v. Schwarzenbach, 81 N. J. L. 244, 79 Atl. 1027; Karabalis v. E. I. DuPont, 129 Va. 151, 105 S. E. 755; Crawford v. Davis, 136 S. C. 95, 134 S. E. 247; Western Union Tel. Co. v. Mason, 232 Ky. 237, 22 S. W. (2d) 602; Hamilton v. Standard Oil Co., 323 Mo. 531, 19 S. W. (2d) 679; Tullgren v. Amoskeag Mfg. Co., 82 N. H. 268, 133 Atl. 4, 46 A. L. R. 380; Kirwan v. Foos, 248 N. Y. 604, 162 N. E. 542; Id., 221 App. Div. 858, 224 N. Y. Supp. 831.)
In the case of Troutman’s Admx. v. Louisville & N. R. Co., 179 Ky. 145, 200 S. W. 488-490, 492, the court has this to say: “We are also of the opinion that the same measure of duty and care exists when the company undertakes to assume control of the ease and take charge of the injured employé, although under the conditions present at the time it might not have been under any duty to furnish such medical aid or attention, as would exist in a state of ease in which in the first instance it would have been under such duty, because the voluntary assumption of an unrequired burden may impose the same obligations as to the assumption of a required duty. ’ ’
In the case of Smith v. Mallinckrodt Chemical Works, 212 Mo. App. 158, 251 S. W. 155, 157, plaintiff sought to recover damages for an injury to her eye sustained by reason of improper treatment by an employee of the defendant. In affirming judgment for plaintiff the court said: “Granting Dr. Rohlfing’s negligence does it follow that the doctrine of respondeat superior exists under the circumstances between the defendant company and Dr. Rohlfing, rendering such company liable for his negligent act? There can be no question but that he was employed as a clerk and was in the general employ of the defendant as such, but that on account of his previous medical experience the habit and custom arose, which was known to the company, through which his services as a doctor were used by the company in treating its employees. While he was not employed as a doctor, he was used as such to the knowledge of the company, who through him undertook to furnish medical attendance to its employees. While no charge was made for such service and there was no obligation on the defendant company to furnish such ser vice, it did undertake to do so, and by reason of such fact a duty arose towards such employees. It was certainly the duty of the defendant to use reasonable care in selecting a reasonably skilled physician to perform the service, and for a violation of such duty defendant would be liable. There was no contention here that defendant did not exercise due care in selecting Dr. Rohlfing to perform the service as a physician, but plaintiff seeks to hold the defendant liable for the manner and mode in which Dr. Rohlfing performed such service; in other words, his act of malpractice in improperly diagnosing plaintiff’s ailment.”
The duty to use reasonable care in the rendering of the service and attention to appellant by respondent arose not from any right to receive the service and attention but from the relation between the parties which the service makes. In the case of Edwin Tullgren, Administrator, v. Amoskeag Mfg. Co., 82 N. H. 268, 133 Atl. 4, 6, 46 A. L. R. 380-385, voluntary services were offered to and accepted by a sick person in the employ of the defendant, and in passing on the negligence of the servant of the defendant in rendering proper care to her, the court said: “The service being assumed, the plaintiff was entitled to receive due care in being taken home, not only in means, but in manner as well. It was important that she should be taken home in safety, and care in her travel included the conduct of the travel as well as the arrangements for it.” To like effect, see Ellen Kirwan v. Rosalie Foos, as Executrix of Fergusson W. Foos, Deceased, 248 N. Y. 604, 162 N. E. 542.
In the case of Carey v. Davis, 190 Iowa, 720, 180 N. W. 889, 892, 12 A. L. R. 904, it was alleged that plaintiff was in the employment of defendant as a farm laborer and while so at work for and under the direction of defendants in the excavation of a gravel pit, he became overheated and fell in a faint or fit of unconsciousness and having partially recovered therefrom and resuming work he again suffered an attack of that nature, and while in that condition the defendants caused him to be removed to a wagon box near the place where he had been working and left bim there in an even more exposed condition unattended and without care or protection for a period of hours until plaintiff liad recovered sufficiently to make his own way home. He charged defendants with negligence in failing to give him reasonable care in his sick and helpless condition and aggravating tds suffering by placing him in a wagon box exposing him to the rays of the sun and to the effect of weather conditions whereby he became sick and confined to his bed and had been wholly incapacitated for labor. In reviewing this case the court said: "It is argued in his behalf that even if it is held that defendants would otherwise not be liable, yet, having assumed to pick him up in his unconscious condition and remove him from the place where he had fallen, it then became their duty to use reasonable care in so doing not to aggravate his misfortune, and for failure in this respect with resulting injury to him an action for damages will lie. This proposition is quite in accord with the reasons and principles which underlie the law of negligence. One person seeing another in distress may or may not be under legal obligation to afford him relief, but, if he does undertake it, he is, of course, bound to act with reasonable prudence and care to the end that, if his effort be unavailing, it shall at least not operate to increase the injury which he seeks to alleviate.” (See, also, Pedigo & Pedigo v. Croom, (Tex. Civ. App.) 37 S. W. (2d) 1074; Hoffman v. Houston Clinic, (Tex. Civ. App.) 41 S. W. (2d) 134.)
It is contended by appellant that his action is not for damages for injuries arising out of and in the course of his employment, but that his action is one for damages for injuries by him suffered by reason of the negligent treatment received by him from respondent and Mrs. Davison. It is his contention that proper treatment of his injury would have resulted in the removal of the fragment of steel without permanent injury to his sight and that the loss of his eyesight can only be attributed to the negligence of respondent and .not to the original injury.
In the case of Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403, L. R. A. 1916E, 1201, the court considered a cause of action similar to that sought to be established by appellant. The plaintiff recovered a judgment for $4,520 against the Witherspoon-Englar Co. under the Workmen’s Compensation Act and it appealed. The court said: “The amount of the judgment implied a finding of total disability for the full period of eight years. The principal contention of the defendant is that such a finding was not warranted because, even conceding that the plaintiff is now totally unable to perform labor and that this condition will continue for the period named, the evidence shows that the permanent character of his incapacity is actually the result, not of the injury received while working for the defendant, hut of improper surgical treatment. * * * The matter is not confused by the need of determining what results might-have been anticipated, or by any refined distinctions between proximate and remote causes; for whether and to what extent disability in such a case as the present has been increased by want of proper surgical care admits of ascertainment with reasonable definiteness and certainty. If it should be proved here, for instance, that the whole effects of the plaintiff’s injury would under proper treatment have disappeared within a year, that would obviously be the limit of the period for which he could receive compensation in this action. His judgment here could not be increased by the fact that through the incompetent or negligent handling of the ease by physicians a disability which would otherwise have been merely temporary was rendered permanent. (Della Rocca v. Stanley Jones & Co., (1914) W. C. & Ins. Rep. 33, annotated in 6 N. C. C. A. 624.) Even if circumstances had been shown sufficient to charge the defendant with responsibility for the fault of the physicians, the rule would not be altered; for liability under the Compensation Act cannot be made to depend upon the degree of care exercised. A part of the loss occasioned by an accidental injury to a workman is cast upon the employer, not as reparation for wrongdoing, but on the theory that it should be treated as a part of the ordinary expense of operation. So much of an employé’s incapacity as is the direct result of unskillful medical treatment does not arise ‘out of and in the course of his employment’ within the meaning of that phrase as used in the statute. (Laws 1911, c. 218, see. 1.) For that part of his injury his remedy is against the persons answerable therefor under the general law of negligence, whether or not Ms employer be of the number. It was doubtless desirable that the malpractice issue should have been distinctly presented in the pleadings, but in any event it was incumbent on the plaintiff to show what degree and duration of incapacity was the direct result of the original injury received in the course of his work, without the intervention of an independent cause.”
In the case of Ellamar Min. Co. of Alaska v. Possus (Circuit Court of Appeals, 9th Circuit, January 7, 1918), 247 Fed. 420, 422, the court in commenting on the phrase ‘ ‘ arising out of and in the course of employment” said: “We are of the opinion that under the Act the plaintiff could not recover for aggravation to his injuries as pleaded in his second count. The Act limits recovery thereunder to cases of death or injury arising ‘ out of and in the course of employment.’ That phrase is one that is commonly used in workmen’s compensation acts, and its meaning has been determined in numerous decisions. ‘This phrase embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake, and which is calculated to further, directly or indirectly, the master’s business.’ (5 Labatt’s Master and Servant, sec. 1806.) An injury arises out of the employment if there is a causal connection between the working conditions and the injury, and it must be possible to trace the injury to the nature of the employer’s work, or to the risks to which the employer’s business exposes the employé.”
Again the principle contended for by appellant in the case at bar is strongly confirmed in the case of Ashby v. Davis Coal & Coke Co., 95 W. Va. 372, 321 S. E. 174, 33 A. L. R. 1201. The action in this case was instituted by an injured employee. In affirming the right of the employee to recover for damages due to negligent medical treatment, the court said: “Plaintiff further alleges that these acts on the part of defendant’s physician at Dartmore were the result of ineompetency and lack of skill, and were done with willful intent to prevent plaintiff from receiving proper treatment for his said injuries, and that as a result thereof he was kept for a long space of time from aseer taming ^to what extent he had been injured, and has become permanently injured, and is suffering constantly and will continue to suffer the rest of his life much pain and misery; all of which was caused by the negligence of defendant to employ a person of suitable and proper skill to treat his said injuries; by reason of which he has become damaged in the sum of $10,000, for which he brings his suit.” The court further says: “Plaintiff does not sue for damages resulting from injuries sustained while working in defendant’s mine, but for the alleged permanency of his injuries as a result of the neglect or wrongful act of defendant’s physician, whom, it is alleged the defendant knew to be incompetent and unskillful at the time.”
Quoting from 28 Ruling Case Law, pages 882, 883, section 119, it is said: “If for any reason the Compensation Act does not embrace the ease of an employee who has sustained injury by reason of conduct on the part of his employer, an action may be maintained at law independently of the provisions of the statute. * * * Under some of the Acts it would seem that an action at law may be maintained for certain consequences of calamity, which are held not to be compensable by reason of the fact that they are not the ‘proximate result’ of the occurrence ; as, for example, incapacity attributable to improper medical or surgical treatment provided by the employer.”
In the case of Borgeas v. Oregon etc. R. Co., 73 Mont. 407, 415, 236 Pac. 1069, 1072, the court says: “If the defendant company, being in duty bound to furnish skilled and careful surgeons, by reason of lack of reasonable care in its selection, or the retention of a surgeon after it had been brought to the attention of the officers of the company that such a one through lack of skill or by reason of personal habits has become unfit to serve in that capacity, provides an injured employé with such unskillful or careless surgeon, then it would be liable for the carelessness or malpractice of the surgeon, and the allegation of damage therefrom may properly appear in the complaint. (4 Thompson on Negligence, sec. 3842; Wabash R. Co. v. Kelley, 153 Ind. 119, 52 N. E. 152, 54 N. E. 752),” which supports the principle contended for by appellant in the case at bar.
Nothing can be found in the Workmen’s Compensation Act that would deprive the appellant of the right to bring this action. An examination of other provisions of the Act leads to but one conclusion and that is that it is intended to apply only to injuries sustained by an employee in the course of his employment, and as to a person injured “in the course of his employment,” the Workmen’s Compensation Act is exclusive unless falling under an exception provided by the Act. It was never intended or contemplated that an employer could hide behind the Compensation Act and thereby escape liability from his negligent or malicious acts toward an employee for an act having no connection with the course of employment. The contention of the respondent, that there is no liability at common law because of the Workmen’s Compensation Act, is not predicated on negligence but only upon injuries arising out of and in the course of employment. Section 2836, Revised Codes of 1935 provides:
“In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:
“ (1) That the employee was negligent, unless such negligence was wilful;
“(2) That the injury was caused by the negligence of a fellow employee;
“(3) That the employee had assumed the risks inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide and maintain a reasonably safe place to work, or reasonably safe tools or appliances.”
The injuries sustained by appellant, according to the complaint, were out of the course of the employment, were inflicted by negligent treatment;, that one of the joint tort-feasors was respondent is of no consequence in so far as the Workmen’s Compensation Act is concerned. Appellant was not an employee of respondent after hours had elapsed and while away from the plant or premises of respondent.
In the case of Palko v. Taylor-McCoy Coal & Coke Co., 289 Pa. 401, 137 Atl. 625, 629, the supreme court of Pennsylvania in discussing the phrase “course of employment” said: “ ‘Course of employment’ does not cover all the time during the day; it does not extend to intervals of time between regular working hours, nor to the interval between the regular working hours and a new, additional, or different work to be undertaken at another period of time, in which intervals the employee leaves the premises. We do not pass on the question which might arise where the employee remains on the premises. The term ‘course of employment’ does include tlie intervals of time for leisure interspersed in regular working hours for rest or refreshment on the premises (Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 Atl. 351, L. R. A. 1918F, 888), or to minister to personal comfort or relieve nature (Ferri v. Lenni Quarry Co., 266 Pa. 264, 109 Atl. 845), but it does not cover the time going to or from work after or before regular or extra working hours. (Maguire v. James Lees & Sons, supra [273 Pa. 85, 116 Atl. 679]; Shickley v. Philadelphia & Reading Coal & Iron Co., 274 Pa. 360, 118 Atl. 255; Rotolo v. Punxsutawney Furnace Co., 277 Pa. 70, 120 Atl. 704.)"
The Act does not require respondent to render medical aid or attention to appellant, but once having voluntarily and gratuitously assumed to render medical aid and assistance and having done so, respondent is held to the same measure of duty as any other person in the same situation. (See 18 R. C. L., p. 603, sec. 103; Crawford v. Davis, 136 S. C. 95, 134 S. E. 247; Carey v. Davis et al., 190 Iowa, 720, 180 N. W. 889, 12 A. L. R. 904.)
In the case of Koppang v. Sevier, 101 Mont. 234, 53 Pac. (2d) 455, 459, the court said in part: “ “ ® * that an important feature of the compensation plan is found in the fact that industry should care for its own man power wrecked by reason of laboring in the industry, just as it must bear the expense of wreckage of machinery used in the same manner (see Meznarich v. Republic Coal Co. [101 Mont. 78], 53 Pac. (2d) 82, decided December 12, 1935), all of which we heartily approve; but that does not carry us to a point where we must say that industry is always required to stand the expense of wreckage by independent tort-feasors, or that workmen under the Act must be held to waive and forego causes of action arising out of something entirely foreign to the risk involved in their ordinary duties in order to avail themselves of the benefits of the Workmen’s Compensation Act. Fortunately the legislature was possessed of the power to control that situation, as was pointed out in the Clark v. Olson case; but unfortunately, as we then suggested, the relief did not come soon enough to aid Clark. Here such relief is not only appropriate, but. timely.”
At the time appellant sustained the injury to his right ey.e he was not employed by or working for respondent. He was not on the premises of respondent, but he was at a first aid station conducted and operated by respondent some distance from respondent’s premises, in the charge of Mrs. Davison, who, at which place, rendered the services to and treated appellant’s eye. Under the circumstances, can it be said that the injury is an “industrial injury”, “arising out of” and “in the course of his employment”? It must be apparent that appellant’s injury did not arise out of and in the course of his employment. These phrases have received consideration by many courts including this court. In Landeen v. Toole County Refining Co., 85 Mont. 41, 277 Pac. 615, 619, this court said:
“In order for claimants to recover, the facts must disclose that the injuries resulted from an industrial accident, arising out of and in the course of their employment. As these terms are used conjunctively, and not disjunctively, in the statute, unless all three necessary elements are proved by a preponderance of the evidence, no liability rests upon the employer to pay compensation. (Wiggins v. Industrial Accident Board, 54 Mont. 355, 170 Pac. 9, Ann. Cas. 1918E, 1164, L. R. A. 1918F, 932; Wirta v. North Butte Mining Co., 64 Mont. 279, 210 Pac. 332, 30 A. L. R. 964.)
“The explosion, happening as it did, was an industrial accident. (Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 Pac. 270.) As this court, speaking through Mr. Justice Mat thews, said in the case last cited, the phrase ‘injury arising out of and in the course of his employment’ means that the injury or death resulted from an industrial accident arising out of and in the course of his employment. The terms ‘arising out of’ and ‘in the course of’ are used conjunctively, and, in order to satisfy the statute, both conditions must concur. (Wirta v. North Butte Min. Co., supra; Herberson v. Great Falls Coal & Wood Co., 83 Mont. 527, 273 Pac. 294.) The term ‘out of’ points to the origin or cause of the accident, and is descriptive of the relation which the injury bears to the employment. (Wiggins v. Industrial Accident Board, supra.) It presupposes a causal connection between the employment and the injury. (Larke v. John Hancock Mutual L. Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584.) The term ‘in the course of’ refers to the time, place, and circumstances under which the accident took place; an accident arises in the course of the employment if it occurs while the employe is performing the duty which he is employed to perform (In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, note), or ‘if it occurs while the employé is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time’ (Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, quoted in Wirta v. North Butte Mining Co., supra.) ” (See Rautio v. International Harvester Co., 180 Minn. 400, 231 N. W. 214; Wilhelm v. Angell, Wilhelm & Shreve, 252 Mich. 648, 234 N. W. 433; Podgorski v. Kerwin, 144 Minn. 313, 175 N. W. 694.)
These phrases, “arising out of” and “in the course of his employment” have received very careful consideration by the supreme court of Oregon, wherein it is said that the phrase “ ‘arising out of’ and ‘in the course of his employment’ as used in the Workmen’s Compensation Law should be given a broad and liberal construction.” In the Brady v. Oregon Lumber Co. Case, 117 Or. 188, 243 Pac. 96, 99, 45 A. L. R. 812, quoting from Ann. Cas. 1918B, 769, the court said: “To entitle a workman to an award of compensation under a Workmen’s Compensation Act, his injuries must result from an accident both arising out of and in the course of his employment. The two elements must coexist. They must be concurrent and simultaneous. The one without the other will not sustain an award. Yet the two are so entwined that they are usually considered together in the reported cases, and a discussion of one of them involves the other. * * ‘In the course of’ points to the place and circumstances under which the accident takes place and the time when it occurred. In order to restrict beyond the reach of question the words ‘in the course of the employment,’ the words ‘arising out of’ were added, so that the proof of the one without the other will not bring a case within the Act. The term ‘ arising out of ’ in the Act points to the origin or cause of the injury. It presupposes a causal connection between the employment and the injury. (Larke v. John Hancock Mut. L. Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584.)”
Our own court has considered these phrases in the case of Herberson v. Great Falls Wood & Coal Co., 83 Mont. 527, 273 Pac. 294, 296. In considering these phrases “arises out of his employment” and “in the course of his employment”, the court said: “ It is to be noted that the Act does not define the phrase ‘arising out of the employment,’ and, as for judicial definition, it is universally conceded that no comprehensive formula can be devised which will determine with certainty the application of this phrase. Each case must be decided upon its own fact features in the application of the law. The decisions of the courts attempting to apply this statutory restriction in the award of compensation are so numerous that it would take more time than we have at our disposal to review and consider them. The terms ‘arising out of’ and, ‘in the course of’ the employment are used conjunctively, and, in order to satisfy the statute, both conditions must be present. (Wiggins v. Industrial Accident Board, 54 Mont. 335, 170 Pac. 9, L. R. A. 1918F, 932, Ann. Cas. 1918E, 1164; Wirta v. North Butte Min. Co., 64 Mont. 279, 210 Pac. 332, 30 A. L. R. 964.) The words ‘in the course of an employment’ refer to the time, place, and circumstances under which the aceident took place, and an accident arises ‘in the course of the employment’ if it occurs while the employé is performing a duty, imposed upon him by his employer, connected with his employment.”
In the case of Isabelle v. J. H. Bode & Co., 215 App. Div. 184, 213 N. Y. Supp. 185, 186, in commenting on the phrase “arising in the course of employment” the supreme court of New York said:
“It is not sufficient to sustain an award that the employment occasioned the presence of the employee where the injury occurred. (Matter of Scholtzhauer v. C. & L. Lunch Co., 233 N. Y. 12, 134 N. E. 701.) In that case the court said [referring to the injury] :
“The injury ‘must have been received while the employee was doing the work for which he was employed, and in addition thereto such injury must be a natural incident to the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence, and directly connected with the work. (Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344).’ ” To like effect, see M. P. Gustafson Co. v. Industrial Com., 348 Ill. 11, 180 N. E. 567; Atlas Linen Supply Co. v. Industrial Com., 348 Ill. 69, 180 N. E. 570.
It seems clear that the cause of action set up in the complaint for the injury sustained at the hands of Mrs. Davison is entirely separate and distinct from the primary, industrial injury to appellant’s eye. The industrial injury arose out of and was in the course of his employment, and as to this injury the Workmen’s Compensation Act was exclusive. But the new injury caused by Mrs. Davison was not an industrial injury, nor did appellant’s new injury arise out of and in the course of his, appellant’s, employment. Could the Workmen’s Compensation Act be construed to cover the new injury? The Act does not require the employer to furnish medical aid, and there is no hospital contract between appellant and respondent. In jurisdictions where the Act requires the employer to furnish medical aid, or where the employee submits to the employer’s selected physician or surgeon, it has been held that the Workmen’s Compensation Act is exclusive, on the theory, it would seem, that ii the employer is bound to furnish medical aid, or the employee submits to the employer’s selected physician, then the employer should be protected and the Compensation Fund should pay the employee for any additional or new injury sustained. In our opinion the Workmen’s Compensation Act of Montana cannot be so construed.
Rehearing denied March 20, 1940.
It has been suggested that section 2909, Revised Codes, in effect condemns the alleged cause of action here. That section in substance provides that the employer shall not be liable for any act in connection with the treatment or malpractice in the treatment of any injuries sustained by an employee. This contention overlooks the gravamen of appellant’s alleged cause of action. As above pointed out, the action is grounded upon negligence of the respondent in selecting and employing an unskilled and incompetent person to care for injured employees. The action is not based upon malpractice in any sense of the term. Appellant’s recovery, if one is allowed, must rest upon proof of a want of care on the part of respondent in selecting the attendant. Proof of the acts of the attendant resulting in injuries will only become admissible to show that the negligence in employing an unskilled and incompetent attendant was the proximate cause of the aggravated injuries to appellant.
We therefore hold that under the facts alleged in the complaint, the Workmen’s Compensation Act is not exclusive, and that the complaint states a cause of action.
The judgment is reversed and the cause remanded with directions to the trial court to overrule the demurrer and to grant leave to respondent to file answer to the complaint.
Associate Justices Morris, Angstman, Arnold and Erickson concur.
|
[
31,
-20,
-35,
10,
22,
-29,
4,
-2,
-3,
33,
19,
-25,
49,
-6,
10,
8,
-22,
-9,
36,
18,
1,
-11,
-13,
-21,
-55,
-31,
-120,
-61,
-60,
27,
-37,
22,
-26,
25,
-25,
58,
8,
-28,
-25,
-9,
37,
16,
20,
7,
18,
67,
-5,
-10,
-18,
19,
28,
-63,
-10,
26,
34,
-1,
40,
47,
0,
-24,
-46,
-13,
62,
2,
40,
-3,
-30,
26,
26,
1,
10,
17,
21,
-34,
-25,
-15,
22,
-21,
-24,
37,
-54,
-41,
40,
-3,
-20,
63,
-28,
62,
-44,
44,
11,
13,
-5,
52,
38,
-13,
-44,
-11,
8,
36,
-33,
3,
-24,
-10,
-14,
-90,
5,
15,
32,
62,
-24,
15,
-23,
23,
11,
-67,
16,
16,
5,
-52,
33,
4,
-16,
-3,
-26,
21,
-54,
5,
41,
0,
-15,
-51,
34,
8,
7,
31,
33,
-19,
4,
40,
-7,
-36,
-25,
46,
-24,
6,
-29,
57,
-92,
-22,
40,
-2,
44,
51,
10,
-48,
47,
8,
63,
-28,
28,
22,
33,
0,
25,
26,
8,
-8,
-10,
0,
5,
26,
-15,
-33,
22,
11,
12,
-44,
-27,
36,
-18,
5,
15,
-46,
13,
12,
59,
29,
14,
18,
31,
-29,
6,
-7,
-39,
-5,
12,
-34,
26,
-51,
13,
-18,
-22,
24,
13,
35,
12,
-2,
29,
43,
-11,
3,
-17,
1,
-24,
6,
-12,
43,
-16,
-43,
20,
-1,
-25,
26,
-39,
-63,
44,
38,
46,
-43,
-37,
-23,
62,
2,
0,
-28,
67,
-36,
-47,
-13,
-77,
11,
-2,
36,
-31,
25,
-34,
-12,
-5,
11,
1,
20,
19,
34,
-8,
-9,
0,
0,
-18,
-47,
-16,
-12,
38,
28,
57,
-27,
-27,
13,
14,
-32,
9,
22,
68,
-14,
-76,
-69,
33,
-7,
43,
15,
-17,
-44,
-46,
3,
-38,
-15,
-21,
-21,
-50,
-57,
-8,
-4,
-41,
-4,
0,
22,
41,
4,
-30,
-4,
-4,
-47,
-30,
-34,
-4,
80,
-27,
-1,
-3,
-4,
-5,
-18,
-7,
-23,
6,
-13,
-43,
44,
-8,
-10,
10,
56,
-27,
-12,
-38,
29,
-36,
-5,
2,
17,
39,
20,
0,
45,
-50,
-9,
49,
0,
32,
-77,
21,
25,
16,
30,
-31,
16,
9,
1,
0,
-1,
-23,
0,
4,
0,
-26,
87,
41,
-67,
17,
31,
31,
-49,
-1,
-9,
-20,
-46,
-17,
-41,
8,
8,
1,
4,
32,
-19,
67,
40,
-18,
4,
27,
67,
29,
34,
-7,
-38,
-6,
58,
58,
-34,
-27,
-76,
-36,
8,
-6,
41,
0,
0,
-4,
-48,
-9,
-4,
4,
0,
-18,
42,
-9,
-23,
-11,
-35,
7,
-74,
39,
31,
0,
-25,
31,
-58,
8,
56,
-33,
7,
19,
2,
-3,
12,
40,
-57,
27,
-25,
-26,
8,
13,
5,
-67,
26,
-9,
-38,
-11,
47,
3,
-27,
-8,
-30,
-6,
60,
-17,
23,
12,
28,
17,
0,
-5,
13,
6,
3,
18,
9,
-11,
20,
23,
13,
-32,
-4,
-15,
19,
-29,
26,
55,
-12,
-11,
52,
16,
25,
-28,
-13,
35,
19,
-15,
15,
-5,
-10,
-33,
-14,
-6,
46,
22,
-15,
-68,
8,
27,
34,
20,
13,
-33,
-40,
-46,
-35,
-31,
13,
26,
-11,
-45,
-33,
1,
-4,
54,
5,
51,
-41,
-19,
51,
-42,
-14,
27,
-41,
56,
-38,
29,
-14,
-59,
-9,
53,
-5,
27,
66,
-3,
-34,
-41,
-10,
33,
-40,
-48,
-21,
-21,
59,
-4,
11,
7,
18,
-54,
-52,
13,
-67,
16,
29,
-19,
-42,
-57,
37,
41,
-3,
25,
59,
-20,
-9,
-3,
13,
10,
16,
-44,
-9,
-25,
20,
-30,
36,
39,
2,
-15,
9,
-17,
48,
-4,
27,
20,
-1,
13,
39,
-34,
13,
-32,
-18,
15,
-39,
60,
-18,
-36,
7,
37,
-33,
-45,
44,
-9,
-34,
-26,
17,
-17,
14,
-33,
7,
-7,
3,
-21,
-25,
10,
21,
-11,
33,
-20,
-35,
65,
-19,
-18,
36,
-3,
-9,
-6,
42,
-3,
-46,
83,
10,
36,
-25,
-35,
9,
34,
43,
-53,
-24,
-51,
-24,
-25,
23,
-11,
-27,
23,
52,
-78,
-3,
-29,
-49,
68,
-23,
44,
6,
-47,
-7,
28,
13,
33,
-9,
66,
40,
16,
-20,
-39,
-13,
41,
6,
-29,
2,
43,
-9,
-26,
-18,
-3,
-7,
23,
64,
24,
21,
5,
-10,
31,
-54,
-38,
-32,
-5,
-14,
26,
-29,
-1,
21,
9,
9,
3,
16,
51,
39,
-1,
-53,
-16,
46,
-8,
9,
-17,
28,
17,
-45,
-44,
-8,
-20,
-8,
6,
35,
12,
9,
35,
-60,
20,
-7,
-11,
-22,
-2,
-15,
8,
9,
27,
-10,
-4,
-14,
-8,
-58,
17,
39,
29,
12,
3,
5,
10,
-7,
22,
24,
2,
5,
36,
-30,
-13,
0,
-9,
-19,
34,
-9,
-22,
32,
-17,
24,
77,
-40,
-58,
5,
-37,
35,
-52,
-20,
-1,
-37,
21,
14,
11,
-32,
58,
-45,
24,
-19,
-19,
0,
-33,
-61,
-65,
9,
11,
42,
-32,
-11,
25,
3,
-49,
-20,
-26,
34,
27,
-40,
1,
-34,
-51,
-37,
18,
15,
45,
3,
-24,
-28,
25,
-98,
6,
-49,
25,
-50,
-43,
51,
-11,
-11,
9,
45,
1,
35,
26,
-26,
27,
49,
-7,
-24,
60,
-30,
-6,
-63,
-9,
-14,
-8,
-20,
-15,
-10,
-3,
16,
29,
-11,
-7,
-4,
-10,
31,
11,
-5,
-19,
22,
0,
10,
-11,
5,
-4,
12,
14,
-14,
-23,
-3,
30,
-22,
-14,
-21,
27,
45,
-5,
40,
-36,
9,
-23,
32,
43,
-107,
-17,
34,
5,
-32,
-41,
12,
9,
33,
-20,
-24,
-28,
9,
24,
8,
0,
35,
-39,
0,
4,
-80,
85,
67,
-21,
-32,
46,
27,
1,
-25,
-4,
3,
45,
39,
7,
-13,
-5,
12,
-46,
28,
-7,
-5,
-40,
29,
-8,
69,
19,
19,
9,
-25,
12,
5,
-9,
50,
-38,
-35,
12,
1,
8,
21,
10,
8,
-8,
13,
7,
19,
-11,
25,
46,
22,
-18,
11,
-16,
60,
0,
26,
10,
-53,
11,
36,
-42,
-21,
-23,
-4,
-21,
-9,
48,
24,
4,
-16,
14,
-45,
-26,
30,
50,
-2,
-7,
35,
-44,
-24,
7,
15,
13,
-43,
16,
3,
-31,
33,
-48,
-23,
9,
-25,
22,
-58,
-5,
13,
3,
-9,
36,
-20,
-21,
-18,
35,
12,
-8,
-3,
-31,
-22,
10,
-38,
-45,
-38,
3,
60,
4,
-14,
-55,
24,
30,
36,
2,
-23,
77,
13,
50,
-35,
-38,
-19,
22,
33,
38,
-15,
35,
6,
1,
-33,
-28,
-16,
55,
45,
-3,
-9,
-44,
5,
-11,
-3,
13,
13
] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
Relator, Tony Kruletz, applied for a writ of mandate, or other appropriate writ, to require the district court of Beaverhead county and Henry G. Rodgers, as judge thereof, to vacate and annul two orders made after final decree, and an amended decree rendered pursuant thereto, in Cause No. 4614, entitled Joseph Stefanic v. Tony Kruletz and Joseph Mautz. An alternative writ of mandate issued and respondents filed a motion to quash the return of service and without waiver thereof filed an answer to the writ. Briefs were filed and oral argument had on both the motion and the issues raised by the answer.
The facts are that on June 30, 1894, in Cause No. 828, a water right suit, the district court for Beaverhead county rendered a decree awarding to G. W. Perkins and N. A. Stiles, as of May 1, 1882, a water right to the use of 740 statutory inches of water from Beaverhead River through the Graeter and Tucker Ditch. By the preceding paragraph of the decree it also awarded to G. W. Perkins and one O. E. Morris, as of October 15, 1884, a right to the use of 620 inches of water through the Engle Ditch.
All of the parties to Cause No. 4614, the one in question here, are successors in interest to the first water right mentioned above, Stefanic’s interest having been acquired by conveyance from Kruletz. In 1938 a controversy arose whether by the conveyance Stefanic acquired a one-sixth interest in the ditch and water right, amounting to 123 Vá inches, as claimed by him, or only 70 inches and a corresponding interest in the ditch, as claimed by Kruletz. Stefanie thereupon filed Cause No. 4614, a quiet title action to determine his right and to enjoin interference therewith. Mautz defaulted, not being concerned in the controversy. No question was involved concerning the date of the water right or of priority between the parties, all admittedly claiming under the same right and as of the same date. The sole issue was the number of inches of water and the proportionate interest in the ditch belonging to Stefanie. In his complaint Stefanie did not mention the date of the water right, but merely alleged that in Cause No. 828 there was decreed to the parties and their predecessors a right to the use of 740 inches of the water of the stream, and that he, Stefanie, was an owner of an undivided one-sixth interest therein. In his answer in Cause No. 4614 Kruletz alleged that in Cause No. 828 the two water rights above mentioned were adjudicated as stated above in this decision; that Stefanie, Kruletz and Mautz are the owners of the 740-ineh water right and of the Graeter and Tucker Ditch, now known as the Perkins Ditch, and that Stefanie was entitled only to 70 inches of that water right, and not to one-sixth thereof as claimed.
The court found in Cause No. 4614 that in Cause No. 828 Stiles and Perkins were adjudged the owners of the water right of 740 statutory inches, but erroneously mentioned the date of the appropriation as October 15, 1884 (which was the date of the 620-ineh water right mentioned in Kruletz’ answer but not involved in the suit); it found that the parties to Cause No. 4614 were the successors in interest to the said 740-ineh water right, and that Stefanie was entitled to the entire one-sixth thereof claimed by him, or 123% statutory inches, and to a corresponding undivided ownership in the Graeter and Tucker Ditch, also known as the Perkins Ditch. The court’s conclusion was that the parties were entitled to have their respective interests in the ditch and water right quieted accordingly. Subsequently, on November 25, 1938, a decree was entered in accordance with the findings and conclusions and enjoining interference with the rights of the various parties, but again erroneously mentioning the date of the water right in question as October 15, 1884, instead of May 1, 1882. Costs were not mentioned in the findings, conclusions or decree, but on November 29, 1938, Stefanie filed his cost bill for $53.92; no motion to retax costs was made. Thereafter on December 20, 1938, Stefanie filed a motion to amend the decree to award him costs. Kruletz filed a motion to strike Stefanie’s motion on the ground that the court was without jurisdiction to grant the same; after argument by both parties, Kruletz’ motion was denied and Stefanie’s was granted.
The error in the date of the appropriation was first discovered in the spring of 1939, when the water commissioner was given a list of the water rights, in which the 740-inch water right for the Perkins Ditch, supplying all parties to Cause No. 4614, was dated October 15, 1884, as erroneously mentioned in the decree in that suit, instead of May 1, 1882, as adjudicated in Cause No. 828. On ex parte application of Stefanie, the court on June 30, 1939, entered a nunc pro tunc order amending its decree to correct the patent error in the date of the water right.
Various questions have been raised relative to the service of the writ and to the propriety of a special writ to the controversy in question, but it will not be necessary to consider them, since in any event a peremptory writ must be denied upon the merits.
It has been uniformly held in the jurisprudence of the territory and state of Montana, that judgments or records of trial courts may be modified or amended by the entry of nunc pro tunc orders or amended judgments to remedy the failure of the clerk to enter judgment within the time provided by law or to correct other error or omission by the clerk (Comanche Mining Co. v. Rumley, 1 Mont. 201, 32 Pacific States Reports; Harvey v. Whitlatch, 1 Mont. 713, 32 Pacific States Reports; Territory v. Clayton, 8 Mont. 1, 19 Pac. 293; Kendall v. O’Neal, 16 Mont. 303, 40 Pac. 599; State v. Bowser, 21 Mont. 133, 53 Pac. 179), or to show entry of judgment nunc pro tunc as of the day on which it was rendered (Parrott v. McDevitt, 14 Mont. 203, 36 Pac. 193), or to make the judgment effective nunc pro tunc as within twenty-four hours after verdict, as provided by law (State ex rel. Jones v. District Court, 50 Mont. 1, 144 Pac. 564), or to make the record speak the truth as to date of entry of judgment or in other respects (Power & Bro. Limited v. Turner, 37 Mont. 521, 97 Pac. 950; First State Bank of Thompson Falls v. Larsen, 72 Mont. 400, 233 Pac. 960), or to correct omissions or errors by clerk, court or counsel so as correctly to set forth the names of the parties (Comanche Min. Co. v. Rumley, supra; Barber v. Briscoe, 9 Mont. 341, 23 Pac. 726), or correctly to describe the property, a fraudulent conveyance of which was therein intended to be set aside (State Bank of New Salem v. Schultze, 63 Mont. 410, 209 Pac. 599), or otherwise truly to express what was actually decided or to grant the relief originally intended to be granted, as by defining ‘ ‘ miner’s measurement” of appropriated water (Keene v. Welsh, 8 Mont. 305, 21 Pac. 25), or by correcting the date of a water right appropriation or other matter in the judgment or decree to accord with the date or other fact as found by it in the findings (St. Onge v. Blakely, 76 Mont. 1, 245 Pac. 532; Monteath v. Monteath, 99 Mont. 444, 44 Pac. (2d) 517).
But the sole permissible purpose of such amendment is to correct an error which has crept into the judgment by reason of misprision on the part of the clerk, judge or counsel, and is apparent on the face of the record, so that the judgment will truly express what was actually decided or intended to be decided and will grant the relief originally intended to be granted, together with the relief following therefrom by reason of law; but not to set aside a judgment actually rendered (except on motion for new trial) nor to change the rights fixed by it as originally intended and made (Whitbeck v. Railway Co., 21 Mont. 102, 52 Pac. 1098; Ogle v. Potter, 24 Mont. 501, 62 Pac. 920; Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123; State ex rel. McHatton v. District Court, 55 Mont. 324, 176 Pac. 608; State ex rel. Smith v. District Court, 55 Mont. 602, 179 Pac. 831; Currey v. Butte Elec. Ry. Co., 60 Mont. 146, 199 Pac. 243; State ex rel. Horgan v. District Court, 69 Mont. 167, 224 Pac. 239; Stabler v. Adamson, 73 Mont. 490, 237 Pac. 483; In re Jennings’ Estate, 79 Mont. 73, 254 Pac. 1067; Kline v. Murray, 79 Mont. 530, 257 Pac. 465; Edgar State Bank v. Long, 85 Mont. 225, 278 Pac. 108), nor to change the description of lands in the decree otherwise than to conform to pleadings and proof (Oregon Mortgage Co., Ltd., v. Kunneke, 76 Mont. 117, 245 Pac. 539).
The test is whether on the one hand the change will make the record speak the truth as to what was actually determined or done, or intended to be determined or done by the court, or whether, on the other hand, it will alter such action or intended action.
Where the amendment comes within the permissible class as above noted, there would seem to be no reason, nor any supportable precedent, limiting by time or term the court’s right to correct its record; for if the power is to be effective and do justice to parties and public, it must continue until the error is called to the court’s attention and corrected. Thus, in the eases cited above, proper correction of the record or judgment was approved, whether made immediately, or several months or years later.
Here the change of date was merely a correction to make the decree describe properly the water right whose fractional ownerships were the subject of litigation. The error in date did not alter the actual priority of the water right in question, for that was not an issue in the litigation between Stefanic and Kruletz, but had been determined by the water right suit in 1894. Mention of the erroneous date in the water commissioner’s instruction was improper, for he was obligated to distribute the water according to the actual adjudication in the water right suit of 1894 (sec. 7140, Rev. Codes), and the error in the Stefanic judgment did not, therefore, adversely affect the parties by changing the date of their appropriation. It did, however, adversely affect Stefanic by erroneously describing the subject of litigation and adjudication in Cause No. 4614, which was the 740-inch water right of 1882, and he was en titled to have the judgment corrected so as truly to describe what had actually been concerned in the adjudication. On the other hand, relator Kruletz was not prejudiced by the correction, since it in nowise changed or affected his rights.
The same is true of the amendment to state plaintiff’s right to costs. Subdivisions 5 and 6 of section 9787, Revised Codes, provide that costs are allowed to the plaintiff as of course upon a judgment in his favor in actions which involve the title to real estate, and in actions for an injunction. It would seem that a ditch right is a real estate interest in the nature of an-easement, and that a water right is also a real estate interest in the nature of an easement or of an incorporeal hereditament. (1 Weil, Water Rights in the Western States, 3d ed., secs. 280, 283, 455 and 456; Musselshell Valley F. & L. Co. v. Cooley, 86 Mont. 276, 283 Pac. 213; Hale v. Jefferson County, 39 Mont. 137, 101 Pac. 973; Smith v. Denniff, 24 Mont. 20, 60 Pac. 398, 81 Am. St. Rep. 408, 50 L. R. A. 737, 741.) But whether or not the action comes within subdivision 5 of the section as an action involving the title to real estate, it clearly comes within subsection 6 as an action for an injunction. Having won a judgment for the full relief sought by him, the plaintiff, Stefanie, was by virtue of that fact automatically entitled to recover his costs, subject only to his claiming them by cost bill, which he did, and to defendant’s right to have them retaxed, which the latter waived by not asserting. The plaintiff’s right to costs not being a matter of further adjudication or of judicial discretion, the amendment of the decree to express the right in nowise altered or increased the remedy accruing to him. Although it was made within six months after judgment, and upon notice to Kruletz as provided by section 9187, Revised Codes, it comes within what has been said above with reference to the other amendment.
The application for a peremptory writ is therefore denied and the proceedings dismissed.
Associate Justices Morris, Angstman, Erickson and Arnold, concur.
|
[
-2,
25,
63,
-12,
35,
-17,
23,
-5,
20,
35,
20,
-50,
-13,
-7,
3,
-9,
-57,
-41,
28,
24,
50,
-32,
45,
-15,
-21,
45,
-28,
-14,
10,
-14,
-15,
-22,
-39,
-9,
6,
-10,
-34,
-6,
-27,
-18,
-30,
9,
-32,
-29,
28,
71,
-1,
8,
0,
-7,
-14,
-58,
-35,
9,
-32,
-21,
13,
-28,
-30,
10,
-46,
-23,
34,
14,
47,
-14,
-7,
11,
65,
-32,
-15,
-31,
9,
-30,
27,
14,
-15,
-14,
-17,
-9,
-59,
10,
12,
-11,
-59,
-2,
-11,
20,
70,
49,
-24,
-48,
-25,
-3,
0,
-36,
20,
-7,
-89,
-7,
39,
-28,
24,
28,
18,
-36,
-1,
-14,
13,
16,
13,
48,
-14,
-22,
-33,
-31,
27,
-21,
45,
-12,
14,
64,
35,
-4,
-44,
2,
-78,
-12,
51,
-20,
-38,
-14,
26,
-19,
69,
60,
24,
-12,
13,
39,
0,
3,
-10,
-51,
4,
30,
46,
30,
8,
-26,
23,
8,
48,
-12,
-6,
-20,
22,
-70,
11,
68,
25,
-2,
6,
-32,
-34,
59,
10,
-32,
-13,
8,
82,
-43,
17,
-20,
15,
-8,
0,
-12,
30,
-22,
7,
-18,
-32,
-27,
-37,
-20,
14,
12,
0,
48,
22,
-52,
-17,
-6,
-17,
21,
-23,
43,
-13,
5,
-3,
40,
-9,
-2,
5,
-46,
-16,
-16,
18,
-13,
23,
8,
0,
33,
8,
8,
33,
-29,
-14,
-6,
44,
-5,
20,
-13,
-1,
2,
-17,
-12,
46,
24,
-7,
-15,
0,
32,
-7,
80,
30,
-1,
-14,
-37,
-34,
38,
3,
-26,
24,
22,
-19,
25,
40,
65,
-37,
-60,
-8,
22,
23,
51,
-13,
-2,
-24,
-29,
21,
-12,
27,
-33,
-10,
-40,
-13,
-51,
32,
5,
1,
10,
59,
-45,
-66,
-7,
0,
-22,
18,
3,
-18,
-38,
-15,
13,
34,
39,
9,
18,
-13,
10,
-45,
38,
-23,
10,
-26,
14,
-24,
-51,
26,
19,
-27,
-11,
40,
9,
33,
-21,
-50,
13,
9,
69,
6,
34,
-58,
36,
-78,
48,
5,
35,
29,
32,
-15,
33,
5,
7,
-55,
-29,
-16,
23,
7,
25,
39,
-7,
2,
22,
-47,
-27,
33,
9,
4,
1,
31,
-24,
-27,
-4,
-20,
-1,
12,
2,
-35,
-63,
-14,
48,
-29,
16,
-7,
-10,
-69,
2,
-9,
17,
38,
48,
-14,
-13,
-14,
-1,
8,
28,
-1,
-5,
-26,
40,
-30,
20,
24,
51,
30,
27,
-6,
7,
51,
-33,
-13,
-22,
0,
32,
53,
8,
-17,
27,
10,
-18,
-67,
54,
1,
-8,
21,
-25,
-36,
11,
26,
-15,
-32,
24,
-18,
41,
-19,
-1,
-19,
-16,
6,
-48,
17,
-18,
-2,
-6,
12,
17,
41,
-14,
-56,
-20,
19,
0,
22,
-16,
35,
16,
35,
20,
6,
29,
-5,
3,
-32,
19,
-31,
5,
-23,
44,
-3,
39,
-9,
-17,
-58,
15,
41,
38,
-12,
-40,
-9,
0,
-15,
18,
0,
7,
26,
-3,
10,
0,
-26,
19,
-13,
-3,
-40,
33,
6,
12,
-11,
22,
31,
31,
17,
-50,
-9,
65,
-19,
17,
49,
-59,
54,
-6,
-47,
-47,
-39,
-7,
2,
-7,
-1,
7,
-1,
18,
18,
-83,
43,
-27,
-29,
2,
22,
9,
44,
28,
5,
-16,
-60,
14,
39,
15,
-8,
65,
10,
-38,
30,
18,
-28,
42,
43,
37,
-19,
-30,
-10,
-19,
-2,
33,
-29,
12,
-28,
-13,
42,
3,
-26,
5,
-71,
-13,
-71,
-3,
-4,
-17,
-20,
-50,
-20,
-11,
48,
-17,
-79,
6,
-44,
-40,
26,
-19,
-45,
2,
-23,
9,
50,
55,
-86,
-39,
8,
-16,
58,
45,
-27,
-36,
5,
6,
2,
-14,
-19,
-1,
-30,
-60,
3,
-38,
46,
1,
-28,
-13,
-4,
37,
-1,
-37,
-59,
-60,
7,
47,
23,
-59,
-10,
16,
-10,
-32,
-53,
-7,
28,
-2,
12,
5,
23,
-7,
54,
14,
25,
32,
54,
16,
-1,
-37,
-12,
50,
1,
44,
24,
46,
50,
1,
17,
-53,
29,
-24,
6,
45,
16,
34,
14,
14,
-61,
-2,
-47,
-27,
21,
0,
-36,
-46,
28,
15,
5,
47,
6,
38,
0,
-29,
2,
-37,
17,
-15,
35,
2,
-1,
-23,
10,
26,
26,
0,
-12,
20,
-13,
-7,
65,
-59,
57,
-25,
-9,
-37,
-14,
-6,
39,
21,
-42,
-13,
12,
-50,
12,
36,
-7,
-54,
8,
38,
10,
16,
-1,
0,
0,
3,
0,
-13,
57,
12,
-33,
0,
-7,
11,
4,
21,
1,
9,
34,
34,
-35,
-53,
12,
-19,
13,
5,
-40,
-29,
-13,
-13,
-9,
-23,
0,
-22,
-23,
4,
-12,
31,
32,
-67,
-42,
19,
1,
-36,
-49,
16,
-11,
-36,
-29,
-29,
-62,
84,
6,
35,
-12,
5,
-31,
44,
-50,
33,
5,
-44,
4,
7,
-21,
10,
3,
23,
32,
-29,
-16,
7,
0,
-61,
-13,
-45,
-56,
7,
-10,
37,
-13,
18,
32,
46,
-42,
10,
17,
-4,
-4,
-50,
-25,
15,
41,
11,
-44,
-3,
-18,
-12,
-6,
-19,
41,
-33,
-83,
-1,
-68,
-60,
38,
-8,
79,
16,
-62,
-17,
-2,
-32,
7,
-22,
-40,
8,
70,
46,
39,
-12,
-20,
54,
63,
41,
66,
4,
-7,
-20,
6,
42,
-38,
4,
37,
17,
17,
-16,
-28,
30,
42,
-29,
14,
-16,
28,
28,
28,
32,
10,
0,
-48,
8,
37,
-18,
-45,
59,
-12,
-15,
53,
33,
10,
-44,
-46,
-16,
-31,
-41,
-8,
-20,
-27,
38,
-18,
7,
26,
22,
5,
6,
-5,
-39,
-47,
-7,
54,
37,
36,
33,
32,
20,
6,
-5,
3,
14,
-35,
47,
14,
7,
-32,
-19,
3,
-11,
-9,
-37,
28,
12,
-56,
26,
-5,
-37,
5,
-25,
18,
-9,
15,
14,
26,
-4,
9,
25,
7,
29,
-13,
-27,
-23,
-46,
-18,
-13,
28,
-28,
-65,
31,
14,
-5,
-10,
37,
-40,
-11,
13,
-36,
-63,
-67,
-34,
-6,
28,
45,
38,
35,
-11,
25,
-67,
-8,
-34,
2,
16,
74,
-47,
-28,
-48,
38,
-14,
-57,
-17,
-15,
-8,
-25,
-6,
-30,
28,
98,
22,
0,
23,
-29,
-8,
-14,
15,
30,
5,
16,
58,
-51,
-18,
29,
-21,
-42,
-22,
0,
-60,
25,
-49,
-45,
52,
29,
10,
9,
-73,
7,
13,
20,
-52,
-11,
46,
28,
15,
-51,
18,
52,
16,
7,
10,
9,
-41,
-31,
-37,
2,
12,
59,
31,
-8,
13,
-11,
-42,
-4,
-19,
-7,
37,
-16,
0,
35,
13,
9,
4,
-12,
31,
0,
33,
47,
35,
-21,
14,
-38,
15,
30,
9,
-5,
13,
-31,
-59,
29
] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an appeal from a judgment of the district court dismissing a complaint for the annulment of a marriage between James Cross and Alma Cross in a suit brought by the mother of James Cross on the ground that he was not of the statutory age when married and did not have the necessary parental consent.
The record discloses the following chronological order of happenings: That James Cross was born October 30, 1921; that beginning with November, 1936, he began keeping company with the defendant who was some four years his elder; that the two operated an advertising sheet in Stevensville and then moved to Idaho and there operated a similar concern; that during the time they were in Idaho they lived together and held themselves out as man and wife; that while the two were in Idaho the mother (plaintiff) of the boy James, in a letter dated August 30, 1938, wrote to them telling them that they were forgiven and asking them to come to her place in Ravalli county; that about a week later the two came to the plaintiff’s farm and there lived until the 15th of October, 1938; that on October 3, 1938, the son James told the plaintiff that the marriage had never been licensed or solemnized; that on October 15 the defendant left the plaintiff’s home and went to live with her grandmother; that on October 22 the son James and the defendant went to Salmon, Idaho, and there were married after obtaining a license in which James falsified his age, he being at that time under the age of eighteen.
The district court found the issues against the plaintiff and refused to annul the marriage. The errors specified on appeal concern but one question — the refusal to grant the annulment.
The plaintiff brings her action under subdivision 1 of section 5729, Revised Codes, which is as follows: “A marriage may be annulled for any of the following causes, existing at the time of the marriage:
“1. That the party in whose behalf it is sought to have the marriage annulled -was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife.”
The first question is whether or not the Montana court has jurisdiction to entertain an annulment suit of this character, where the marriage was performed outside the state. In the absence of a provision in the statute, we are impressed by the general rule in regard to jurisdiction in annulment suits as stated in 38 C. J. 1349: ‘ ‘ Jurisdiction of the marriage res depends upon the residence or domicile of the plaintiff, and it is immaterial where the marriage was solemnized. ’ ’ In this case the domicile of both parties is in Montana. This rule seems so well established and so universally applied that there can be no question of the right to attack in Montana the validity of a marriage performed elsewhere. In such an attack the validity of the marriage is to be determined, not by the requirements for a valid marriage in Montana, but by the requirements of the state in which the marriage was performed, and our legislature has so provided, in effect, in section 5707, Revised Codes: “All marriages contracted without the state, which would be valid by the laws of the country in which the same were contracted, are valid in this state.”
In the present case, because of the similarity of the statutory provisions in Idaho and Montana, the result to be reached •would be the same whether the validity of the marriage were tested by the law applicable in Idaho or by that in effect in Montana. Section 31-202, Idaho Code Annotated, 1932, provides: “Where either of the parties to the contract are under the age of eighteen, the license shall not issue except upon the consent in writing, duly acknowledged or sworn to, of the father, mother or guardian of any such parties.”
Section 31-501, Idaho Code Annotated, 1932, is similar to our section 5729, Revised Codes, providing for annulment of marriages. It provides for annulment where it appears “that the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her.”
The question then is: Does the consent of the parent under the Idaho statute, in order to make the marriage valid, have to be written and acknowledged as provided in section 31-202, supra, or is the marriage valid where the parents had actually consented even though the consent was not written?
The requirement of written and acknowledged consent, as required by section 31-202 of the Idaho Laws, supra, has been held in eases considering similar statutes to be applicable only to the issuance of the license, and simply directory to the clerk who issues the license, and the lack of such written and acknowledged consent does not affect the validity of the marriage. (Johnson v. Alexander, 39 Cal. App. 177, 178 Pac. 297; Lessert v. Lessert, 64 S. D. 3, 263 N. W. 559, and cases therein cited.)
Rehearing denied May 31, 1940.
Our statute and the Idaho statute providing for annulment by reason of the lack of consent of the parents, do not have reference to written and acknowledged consent which should be submitted to the clerk before the license is issued, but rather refer to the lack of actual consent, no matter how expressed.
It should be noted that while section 5712, Revised Codes, provides that “no license shall be granted without the written consent of the father,” yet section 5729 indicates that if consent is had from “his or her parents or guardian, or person having charge of him or her,” then the annulment should be denied. In this case the plaintiff alleges in her complaint that she has had the “care, custody and control” of the minor. There is direct testimony that the mother (plaintiff) consented to the marriage. The record also shows circumstantially that the father acquiesced in the marriage. While there is a direct denial of this consent on the part of the parents, yet there is such substantial conflict in the evidence that this court will not determine that the trial court was in error in finding that the parents had consented to the marriage.
The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris and Angstman concur.
Mr. Justice Arnoud, being disqualified, takes no part in the foregoing decision.
|
[
-4,
13,
-36,
-50,
16,
-43,
-17,
8,
18,
20,
2,
-37,
2,
-29,
-22,
-10,
-84,
15,
68,
-14,
-19,
-2,
-77,
39,
34,
-14,
20,
3,
-51,
4,
16,
53,
-49,
-46,
29,
-7,
-16,
32,
15,
7,
-33,
-10,
-66,
35,
-28,
3,
-29,
9,
-46,
51,
8,
-63,
16,
9,
25,
11,
8,
41,
-26,
58,
25,
0,
-9,
51,
0,
-33,
21,
71,
27,
28,
41,
-45,
-20,
-34,
-5,
-17,
16,
-12,
-10,
29,
0,
-23,
-8,
-14,
53,
-13,
-29,
28,
-40,
30,
17,
25,
-45,
-26,
15,
-16,
-43,
9,
12,
-54,
7,
-28,
-2,
-2,
4,
28,
-73,
35,
47,
45,
41,
-15,
-40,
-6,
30,
57,
19,
50,
13,
-65,
-1,
55,
-43,
9,
56,
-21,
-11,
3,
39,
28,
-66,
13,
-6,
-49,
-38,
-6,
11,
-92,
-42,
-16,
25,
-7,
53,
34,
5,
-2,
-28,
-60,
-41,
-31,
-20,
-7,
62,
25,
74,
-26,
28,
-64,
29,
-27,
3,
20,
-40,
29,
0,
-14,
3,
29,
7,
-6,
1,
46,
-18,
18,
50,
-4,
-16,
-4,
-33,
22,
-8,
66,
-12,
-59,
14,
0,
7,
-87,
-69,
26,
-97,
-30,
79,
-5,
56,
40,
35,
35,
-19,
13,
6,
17,
36,
69,
-34,
25,
14,
28,
3,
10,
-31,
-4,
-1,
4,
-36,
25,
-33,
12,
-60,
-32,
4,
-19,
-11,
-16,
-33,
-69,
-25,
-4,
8,
-47,
-73,
42,
2,
-42,
22,
1,
20,
-20,
-39,
33,
-4,
-11,
-16,
-3,
-12,
27,
-47,
-35,
27,
15,
-7,
-31,
16,
61,
20,
-22,
45,
20,
-2,
-22,
-12,
-48,
5,
-34,
-2,
17,
-4,
-32,
4,
-14,
29,
16,
22,
-35,
-28,
-11,
0,
36,
19,
-31,
8,
-43,
-19,
18,
5,
44,
21,
10,
24,
27,
-1,
-34,
17,
-23,
12,
6,
14,
-30,
10,
14,
44,
51,
4,
-13,
-23,
-15,
-62,
-41,
23,
-23,
-21,
-47,
-53,
9,
13,
-42,
5,
-22,
33,
0,
30,
23,
-23,
14,
-84,
36,
-23,
8,
-1,
38,
-13,
66,
-43,
13,
37,
-58,
37,
21,
-47,
-24,
38,
-13,
31,
-13,
-57,
1,
3,
31,
15,
58,
-8,
9,
-47,
15,
-40,
26,
-4,
-74,
-21,
-4,
-17,
5,
-51,
-40,
16,
20,
44,
-22,
2,
10,
-15,
10,
25,
39,
108,
-23,
-34,
46,
16,
11,
-46,
-31,
-4,
26,
20,
53,
8,
-43,
-58,
-66,
14,
-4,
9,
20,
60,
20,
11,
-28,
-41,
-18,
-47,
40,
13,
-44,
-20,
-5,
44,
17,
-35,
-29,
43,
13,
15,
-9,
53,
-3,
-64,
-16,
-58,
50,
-16,
-8,
12,
6,
-4,
-20,
17,
2,
22,
-10,
18,
127,
-32,
23,
52,
-60,
-13,
62,
-47,
43,
-26,
-25,
34,
23,
-33,
-81,
30,
39,
13,
11,
27,
34,
18,
-26,
1,
-6,
17,
31,
2,
-48,
38,
28,
-10,
-37,
22,
-64,
-31,
-19,
-28,
-24,
12,
-13,
-65,
-28,
22,
51,
2,
4,
-18,
-63,
-20,
-41,
-16,
-7,
21,
41,
-2,
26,
53,
28,
-11,
-5,
-69,
14,
-40,
-19,
-34,
-41,
-1,
-40,
-6,
25,
22,
-10,
45,
-20,
-42,
44,
-31,
-6,
-21,
-41,
-1,
17,
-21,
4,
76,
46,
-47,
-26,
9,
99,
18,
-53,
10,
-12,
33,
-57,
7,
26,
-54,
62,
-43,
27,
3,
37,
42,
-11,
20,
-11,
30,
-26,
0,
2,
-48,
12,
3,
-32,
-32,
-34,
46,
-64,
-31,
-20,
8,
-37,
-26,
32,
-49,
-13,
65,
17,
19,
-39,
-7,
-20,
-58,
-65,
-45,
-19,
-18,
-14,
-12,
-13,
6,
10,
-9,
22,
10,
48,
27,
11,
-53,
5,
-49,
-10,
-30,
25,
4,
7,
-49,
11,
-37,
30,
35,
19,
20,
26,
13,
15,
-34,
12,
77,
20,
11,
26,
0,
-4,
-7,
-35,
-19,
12,
-25,
8,
21,
19,
-27,
3,
0,
-18,
7,
34,
0,
-34,
23,
-19,
-1,
27,
30,
19,
-37,
5,
-7,
-33,
57,
18,
-12,
9,
11,
-37,
-2,
24,
-3,
41,
23,
-8,
65,
1,
34,
-59,
50,
34,
-1,
-47,
-25,
13,
30,
-25,
13,
60,
27,
-56,
21,
62,
-12,
22,
14,
111,
16,
81,
-7,
-2,
-7,
15,
15,
-39,
20,
-48,
67,
6,
36,
-33,
21,
0,
34,
-7,
31,
-44,
-18,
32,
4,
29,
23,
55,
-49,
16,
-88,
77,
-36,
7,
1,
-7,
19,
-19,
-24,
9,
10,
-17,
-16,
-4,
-41,
50,
0,
14,
-18,
-3,
35,
-12,
-63,
-3,
7,
8,
-8,
-24,
39,
31,
71,
2,
2,
-38,
38,
7,
-1,
-24,
5,
18,
17,
4,
8,
11,
-29,
-15,
5,
58,
4,
27,
25,
-44,
-44,
-52,
-22,
31,
-5,
12,
-1,
-34,
-8,
-11,
-9,
-65,
57,
7,
-10,
39,
-63,
-2,
-2,
-14,
5,
0,
23,
-16,
-17,
-16,
-30,
-4,
-15,
17,
17,
5,
-37,
25,
-41,
-17,
-28,
0,
72,
-10,
65,
-53,
-11,
37,
16,
-38,
-8,
-11,
-50,
-42,
-25,
-20,
7,
46,
0,
-30,
-3,
-35,
-41,
31,
-13,
51,
-8,
8,
-8,
7,
-30,
-31,
-31,
-4,
25,
-58,
42,
-22,
-42,
8,
38,
-36,
-30,
3,
14,
3,
-7,
13,
32,
-20,
-17,
5,
31,
28,
-25,
-1,
0,
-15,
-57,
-42,
62,
40,
106,
-6,
38,
-37,
8,
25,
-53,
36,
19,
3,
-22,
-23,
-15,
56,
-5,
-19,
-26,
-36,
4,
-30,
82,
-18,
9,
-11,
-6,
-81,
17,
27,
-39,
-44,
66,
-41,
24,
46,
38,
-15,
-1,
11,
3,
17,
46,
30,
-21,
15,
-43,
-59,
20,
-16,
-24,
13,
-12,
20,
-26,
-6,
-19,
29,
3,
0,
2,
-74,
3,
27,
21,
-36,
50,
-33,
-3,
-37,
17,
3,
4,
2,
-2,
39,
12,
-31,
-27,
11,
-24,
62,
-26,
24,
25,
58,
5,
32,
-32,
-20,
-3,
3,
-61,
84,
-21,
5,
10,
7,
12,
-37,
1,
81,
-3,
-27,
-53,
-15,
1,
36,
13,
38,
29,
56,
3,
28,
13,
2,
2,
20,
-3,
36,
-36,
-45,
27,
54,
34,
-22,
-59,
-7,
-17,
40,
-46,
97,
18,
-15,
79,
-12,
10,
58,
15,
-13,
-13,
35,
2,
73,
-48,
-6,
35,
-19,
-25,
0,
33,
-7,
-20,
-28,
-6,
-18,
6,
-17,
2,
-47,
7,
-10,
-48,
-49,
37,
-18,
23,
6,
2,
10,
14,
23,
-4,
24,
-12,
-3,
-10,
5,
38,
-2
] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
. This action was brought by the respondent Standard Oil Company of Indiana to recover taxes paid under protest imposed under the Chain Store License Tax Law of 1933, Chapter 155. (Secs. 2420.1-2420.11, Rev. Codes.)
The complaint relates to taxes paid in the years 1934, 1935 and 1936. An examination of the record reveals that there is no dispute as to the amounts of taxes if the oil company was liable to the tax. The cause was tried before the court sitting without a jury. The trial judge adopted the findings and conclusions of law proposed by the plaintiff, and found against the defendant board. The appeal is from the judgment in the district court of Lewis and Clark county.
At the trial testimony was admitted to the effect that Chapter 155 was enacted after the time for the regular ses sion of the legislature had expired as provided in Section 5, Article V of the Constitution of the state of Montana. This section provides: “No session of the legislative assembly * “ * shall exceed sixty days.” The journals of the house and senate show that the bill was enacted within sixty days from the convening of the assembly. The board urges that it was error on the part of the lower court to admit the testimony contradicting the journals.
The ordinary rule is that courts will not go behind the enrolled bill to determine its validity; however, this court has gone behind the enrolled bill to the journals to ascertain if a constitutional amendment had been set out at length in the journals, as required by section 9, Article XIX of the Constitution (Thompson Investment Co. v. Durfee, 22 Mont. 354, 56 Pac. 582; Martien v. Porter, 68 Mont. 450, 219 Pac. 817; Tipton v. Mitchell, 97 Mont. 420, 35 Pac. (2d) 110); and to determine if the aye and nay votes have been recorded in the journals pursuant to the command of section 24, Article V (Johnson v. City of Great Falls, 38 Mont. 369, 99 Pac. 1059, 16 Ann. Cas. 974; Palatine Ins. Co. v. Northern Pac. Ry. Co., 34 Mont. 268, 85 Pac. 1032, 9 Ann. Cas. 579). We are here asked in a collateral attack to go back not only of the enrolled bill but also of the journals themselves, and that is what the district court did when it admitted oral testimony to contradict the journals.
The journals on their face show compliance with section 5 of Article V, and the universal rule is that in an attack on the validity of a legislative enactment the journals import absolute verity. They show the action of the assembty. They are the official records of one of the three coordinate branches of the government, and certainly at least in an action where a legislative enactment is collaterally attacked, they are binding on the courts.
Every law enacted in the last few days of the session, and particularly on the last day, could not be considered effective until testimony was taken before a court and until, on the statements of witnesses as to the time of the final enactment of the bill the court had determined the law’s validity. And certainly to allow this attack in anything but a direct proceeding to correct the journal where the various officers of the assembly would be parties, cannot be countenanced by any court. The following language found in Earnest v. Sargent, 20 N. M. 427, 150 Pac. 1018, 1020, is apt: “A controversy might arise in time as to whether the time for adjournment had arrived before the conclusion of the business of the session, and as many differences of opinion might arise as there are members of the houses. Watches and clocks would be the criterion, and one member might claim that the hour of 12 had arrived by his watch, and another member might claim that the hour of 12 had not arrived by his watch. Therefore, -when the Legislature writes its journal, and states, as this journal states, that all of the business involved in this discussion had been completed before the moment of time for adjournment had arrived, the rule of law and the rule of common sense is that it shall not be contradicted by the evidence of witnesses.” (And see State ex rel. Lane Drug Stores v. Simpson, 122 Fla. 582, 166 So. 227; State v. Smart, 22 Wyo. 154, 136 Pac. 452; White v. Hinton, 3 Wyo. 753, 30 Pac. 953, 17 L. R. A. 66; Territory ex rel. Haller v. Clayton, 5 Utah, 598, 18 Pac. 628.).
The district court found that the plaintiff was not a chain store in its operations in connection with the various leased stations in question, within the provisions of section 8, Chapter 155 of the Laws of 1933, which reads as follows: “The term ‘store’ as used in this Act shall be construed to mean and include any store or stores or any mercantile establishment or establishments which are owned, operated, maintained or controlled by the same person, firm, corporation, co-partnership or association, either domestic or foreign, in which goods, wares, or merchandise or petroleum products of any kind, are sold, either at retail or wholesale.”
The single fact question determinative of this cause is the one of control of the leased stations of the plaintiff. The district court found that there was not the control contemplated by the section above set out.
The plaintiff paid the chain store tax, on a number of stations owned by it, under protest and which were leased to various individuals. The suit involved these taxes so paid. The leases on the stations in question were all the same, except as to the parties, description, rental and items of equipment. The stations were leased fully equipped, including even minor tools and advertising signs, so that the lessee had no investment in site, building, equipment or appliances. -The term of the leases was for six months. Under the usual lease as introduced in evidence the lessee holding over was a tenant from month to month, though some leases provided that a holdover operator held for a subsequent term of six months. At most, the tenant under any of the leases had a six-months term. The leases provided for rental on a gallonage basis, and further provided that the rental should be collected at the time of the delivery of the gasoline to the station. In one instance it appears that there was also a cash rental as well as a gallonage rental.
The chief witness in the proceeding was Mr. Hay, the state manager of the plaintiff, who testified in its behalf. His testimony is often self-contradictory and vague, but in addition to the facts appearing in the exhibits, from his testimony the following uneontroverted facts can be gleaned: Though there was no requirement in the lease that the operators buy their petroleum products from the plaintiff, in only one instance did any lessee buy gasoline from another company, and then it was because the lessee had to do so to collect for damage incurred by him due to a collision with the dealer’s truck. In another instance a lessee bought some fuel oil from another dealer. Thus, with these exceptions, it appears from Hay’s testimony that in fact the lessee bought nothing but Standard Oil petroleum products, with the exception of products not handled by plaintiff. That the plaintiff company controlled the lessees in their purchase of oil products is shown by this fact; but if there were any question on the matter it is resolved by other circumstances. The short term of the leases negatives the idea that the plaintiff was only in the real estate business and was not protecting its wholesale petroleum products outlet by arrangements whereby lessees of the retail stations would be forced to buy Standard Oil products. The only logical inference to be drawn from the shortness of the term of the leases, and the fact that the operators sold Standard products exclusively is that purchase of competing products would result in refusal of plaintiff to renew the leases at their expiration.
Two other facts are significant to show that the lessees were effectively controlled as to the purchase of products. The first is that the rentals were to be collected when the gasoline was delivered to the station. The plaintiff could know if the gasoline were delivered by its wholesalers what the rentals would be, and it is apparent it was because it was to sell the gasoline to the lessee that the provision appears. No other inference is plausible. If others were to sell competing gasoline to the lessee, the plaintiff would have no method of checking deliveries made and collection of the rental at that time would not be practical. The second significant fact showing control is that each lease provided that the station be turned back to the plaintiff painted the same as it was when the operator took it. Hay testified the stations all had the same paint design and Standard Oil colors. The testimony, including even that of Hay, after many contrary statements, is that the stations had the Standard Oil signs on them at the time the lessees assumed possession. The requirement that the stations be returned with the same paint design and color as when they were taken over, supports but one view, i. e., that it was contemplated by both parties that the operator' was to deal in Standard Oil products only. Then, too, distinctive Standard Oil products caps for the oil pumps were included in the equipment. All of these things together with the fact that the many operators sold no competing products, show the control contemplated by section 8 of the Act.
For cases with similar facts which hold as we are holding, see Maxwell v. Shell Eastern Petroleum Co., (4 Cir.) 90 Fed. (2d) 39, affirmed 302 U. S. 715, 58 Sup. Ct. 34, 82 L. Ed. 552; Bed ford v. Gamble-Skogmo, 104 Colo. 424, 91 Pac. (2d) 475; and see, also, Midwestern Petroleum Corp. v. State Board of Tax Commrs., 206 Ind. 688, 187 N. E. 882, 191 N. E. 153; Fox v. Standard Oil Co., 294 U. S. 87, 96, 55 Sup. Ct. 333, 79 L. Ed. 780; Ashland Refining Co. v. Fox, (D. C.) 11 Fed. Supp. 431, affirmed 297 U. S. 381, 56 Sup. Ct. 510, 80 L. Ed. 731.
There is other testimony as to advertising which shows the true status of the plaintiff, and which tends to show that it comes within the provisions of the statute, such as testimony that it inspected the various stations, the manner in which the business was conducted, and testimony that it offered courses of instructions to operators and instructed them as to methods, etc.
Without this latter testimony and from the plaintiff’s exhibits and its testimony, the findings of the lower court are erroneous, there being no question of conflicting evidence, and the facts all being determined from plaintiff’s evidence, we find that plaintiff oil company controlled the various stations in question, as contemplated by section 8 of Chapter 155, Laws of 1933.
The lower court found as a matter of law that even though Chapter 155 were validly enacted, and even though plaintiff company came within the provisions of section 8 of Chapter 155, the plaintiff must still prevail as the Act is an arbitrary, unlawful and unreasonable discrimination against the company. The court found that the enforcement of the Act would deprive the company of its property without due process of law and would deny to it the equal protection of the law.
The plaintiff in its brief says:
“In advancing this contention, we are fully aware of the several decisions of the Supreme Court of the United States cited by appellants, holding that graduated chain store taxes are not invalid upon this ground, and we recognize the binding force of these decisions in this matter of interpretation of the federal Constitution but we assert that the facts involved in those cases are. not akin to the facts here found, and that the type of classification established by Chapter 155, as applied to the respondent here, has never been considered by the fed eral courts, and that the question here presented is one of first impression in this or any appellate court.
“The distinction lies in this, that the Supreme Court cases, in each instance, the person or corporation upon whom the tax was laid was the actual operator of the various retail outlets taxed, actually engaged in retailing commodities to the public, while in the instant case the respondent, as the trial court found, on substantial competent evidence, did no retailing and merely owned the various parcels of real property and the buildings thereon and leased these to independent persons, who, in turn, retailed the commodities sold to them by the respondent. Thus the tax imposed by Chapter 155, as laid upon the respondent, is based upon its ownership and leasing of retail outlets to others who buy at wholesale, take title to and resell upon their own terms, products of the respondent.
“In other words, if appellants are correct in their interpretation of the Act, namely, that by such activity the respondent is operating, maintaining, controlling, etc., stores within the meaning of the Act, such interpretation is discriminatory against respondent in that it subjects it to a tax for so leasing its real property while other owners of real property leasing several sites to retailers are not subjected to such penalty. There is no reasonable basis for so setting the leasing activities of this respondent in the class of chain store retailers, while other lessors of multiple units are excluded from the class. ’ ’
The plaintiff takes the position that the method of operation here found does not bring the company within any of the examples to be found in the cases cited by defendant board. It is its position that the advantages accruing to the operator of a chain of stores which are the basis of the holding of the Supreme Court of the United States that the legislature was justified in its classification in enacting chain store license tax laws are not to be found in its operations. The plaintiff returns on this point in the argument to its position that it is primarily interested in leasing the various oil stations as a landowner and not as a purveyor of petroleum products. In the earlier part of this opinion we have found otherwise.
The plaintiff urges that since its only interest in the operation of these stations is as a landlord, then unless the license tax applies to all landlords who own property and lease it to independent operators in the retail business, the tax is unjust and discriminatory. In view of what we have said before as to the control exercised by the plaintiff and the purpose of the control, the argument has no merit. The ultimate object of the arrangements on the part of the plaintiff was to promote an increase in the sale of its products. By its widespread advertising, uniformity in architectural style of the various stations, the uniformity of the paint designs and color, the signs on the stations, the roadside signs and control of the products to be sold, it is given advantages in the distribution of its products which independent operators would not have. The mere fact that the various stations are held under lease by a technically independent operator does not eliminate the fact that by the method of operation here followed by the oil company it gained advantages over the one-station unit.
It should require no argument to demonstrate the fact, for it is common knowledge that motorists in entering a strange town almost invariably make their purchases from stations in chains, such as is the ease of the leased stations here 'in question. The language of the court in State Board of Tax Commrs. v. Jackson, 283 U. S. 527, 51 Sup. Ct. 540, 543, 75 L. Ed. 1248, 73 A. L. R. 1464, 75 A. L. R. 1536, 'is pertinent: “ ‘A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.’ It is not the function of this court in cases like the present to consider the propriety or justness of the tax, to seek for the motives, or to criticize the public policy which prompted the adoption of the legislation. Our duty is to sustain the classification adopted by the legislature if there are substantial differences between the occupations separately classified. Such differences need not be great. The past decisions of the court make this abundantly clear.”
The plaintiff in endeavoring to distinguish the fact situation in the present case from the situation in the cases passed upon by the United States Supreme Court, makes applicable this language in Liggett Co. v. Lee, 288 U. S. 517, 53 Sup. Ct. 481, 484, 77 L. Ed. 929, 85 A. L. R. 699: “In their endeavor thus to distinguish the earlier case, the appellants stress mere details, but ignore the underlying reason for sustaining the classification there attacked. The decision in the Jackson Case was based, not upon any single feature of chain store management, but upon the ultimate fact of common knowledge, 'illustrated and emphasized by the evidence, that the conduct of a chain of stores constitutes a form and method of merchandising quite apart from that adapted to the practice of the ordinary individually operated small store or department store; and that the difference between an integrated and a voluntary chain is fundamental. While incidents of the operation of the one may be quite similar to those found in the other, there is a clear distinction between one owner operating many stores and many owners each operating his own store with a greater or less measure of co-operation voluntarily undertaken. The legislature may make the distinction the occasion of classification for purposes of taxation. Neither similarity of opportunities and advantages in some aspects, nor the fact that the one kind of store competes with the other, is enough to condemn the discrimination in the taxes imposed. It is needless to repeat what was said in the Jackson Case to the effect that the difference between the subjects taxed need not be great, and that, if any reasonable distinction can be found, the duty of the court is to sustain the classification embodied in the law.”
As we have indicated, the record shows that the primary purpose of the plaintiff in its ownership of the stations and the arrangements under which the stations are leased is to secure the sale of the products of the plaintiff. That fact differentiates the position of the plaintiff and that of the ordinary landlord renting out property, for retail store purposes. The ordinary landlord is compensated only by tbe rental received for the property. The difference in situation between the plaintiff and the landlord is sufficient to authorize the classification for the purpose of taxation.
After an examination of all of the cases cited by the defendant board and of those so cited which the plaintiff, as has been indicated, admits are binding on it, we cannot but conclude that the classification made by the legislature as applied to the oil company in its operations in connection with the leased stations in question is not unreasonable, discriminatory nor arbitrary ; nor does it deny to the plaintiff the equal protection of the law. The general arrangements as to these leased stations give to the plaintiff and the operators of the stations all of the benefits of chain organization in such a sense and measure as to fall within the scope of the decision on the question, and even if it did not, the position of the plaintiff company is so different from that of the ordinary landlord that the classification does not bring it within the constitutional provision relied upon.
The plaintiff next urges that the so-called license tax provided for by Chapter 155 is not a license tax at all, and that it m fact is a tax upon real property by reason' of its limitation to the oil company, and hence is subject to the restrictions imposed by sections 1 and 11 of Article XII of the state Constitution.
We have heretofore found that in effect through its control of the various leased stations, the plaintiff was an operator of the various stations for the purpose of the Act. The tax imposed under that view of the facts is clearly a license under any definition, and not a tax on real property. It comes within the ordinary definition which is found in 37 C. J., at page 166: “The term ‘license’ is not involved in uncertainty or doubt; in its general and popular sense, as used with reference to occupations and privileges, it means a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. It is a formal or official permit or permission to carry on some business or do some act which, without the license, would be unlawful, the words ‘li cense’ and ‘permit’ often being used synonymously. It has also been defined as the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or, at least, not by a class to which the licensee belongs. ’ ’ As applied to the plaintiff, it is not a real property tax, but is a license, and we find no merit in this last argument of the company.
Having found then from the testimony offered by the plaintiff itself that in fact its control over the leased stations and its methods of operation were such as to bring it within the provisions of Chapter 155, and there being no fact question left for determination, and there being only questions of law presented to this court which we have determined adversely to the plaintiff, the judgment is reversed and the cause remanded to the district court with direction to enter judgment for the appellant board in accordance with this opinion. It is so ordered.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur.
|
[
9,
38,
23,
-22,
37,
3,
35,
20,
-42,
108,
23,
29,
25,
-53,
42,
0,
-20,
22,
46,
51,
0,
-21,
19,
17,
15,
-6,
-4,
-20,
-50,
19,
23,
-19,
-26,
-3,
26,
-2,
-35,
11,
17,
9,
-2,
22,
-14,
-30,
-28,
5,
0,
-40,
34,
25,
29,
-59,
-50,
-4,
32,
20,
4,
-13,
-52,
42,
10,
-9,
76,
10,
24,
-35,
-27,
14,
56,
-23,
-38,
-15,
18,
-1,
43,
3,
-8,
-17,
-34,
48,
-66,
-34,
0,
-38,
-25,
13,
-39,
-9,
10,
3,
-32,
-31,
-26,
-26,
57,
-18,
9,
-23,
-4,
-9,
-15,
-37,
9,
22,
-21,
-42,
-45,
19,
0,
25,
18,
-16,
-52,
7,
-12,
21,
13,
14,
-5,
-38,
14,
33,
-37,
27,
-46,
16,
-63,
18,
-24,
-22,
-68,
25,
31,
-8,
18,
32,
-9,
-82,
-28,
26,
-29,
-10,
33,
-35,
0,
13,
-14,
23,
48,
-20,
-28,
33,
55,
29,
-47,
-32,
0,
-15,
56,
-68,
25,
-22,
-26,
-16,
7,
27,
-5,
-33,
-34,
-21,
38,
-52,
-36,
28,
55,
33,
-3,
-31,
19,
-36,
-16,
10,
18,
-4,
39,
47,
3,
-5,
2,
-20,
17,
21,
16,
-59,
-20,
-39,
4,
42,
27,
7,
-18,
-13,
3,
20,
43,
34,
10,
32,
5,
-32,
-15,
48,
22,
-19,
-35,
39,
-28,
-48,
30,
-26,
-2,
25,
1,
-11,
-6,
-45,
77,
22,
8,
0,
-30,
18,
-8,
-61,
1,
-12,
8,
-46,
-19,
19,
-15,
-21,
10,
-8,
9,
39,
-35,
-17,
-1,
28,
30,
-30,
2,
26,
-2,
28,
39,
-43,
-20,
-42,
26,
-45,
25,
-51,
-16,
-44,
14,
1,
34,
16,
0,
40,
14,
15,
-16,
-69,
30,
-78,
-11,
-34,
-12,
-19,
19,
-5,
-42,
32,
-30,
-19,
0,
-26,
2,
29,
60,
17,
-3,
30,
12,
27,
19,
5,
-19,
27,
17,
9,
0,
-17,
-59,
10,
0,
22,
-16,
41,
-53,
-11,
35,
-12,
-12,
67,
48,
-22,
30,
14,
17,
-4,
-24,
7,
17,
-36,
-26,
-27,
5,
13,
6,
27,
12,
-61,
19,
-8,
14,
-5,
29,
-2,
-12,
41,
-10,
44,
6,
0,
-31,
43,
-22,
6,
-40,
71,
12,
-17,
-4,
-33,
-53,
-29,
13,
-69,
31,
-18,
-25,
6,
-58,
-67,
11,
5,
-58,
3,
19,
51,
9,
-20,
-3,
35,
-18,
-45,
4,
-19,
-4,
-20,
0,
1,
49,
-29,
-56,
-1,
0,
44,
-25,
18,
-9,
-57,
-8,
-56,
-18,
61,
-16,
18,
14,
15,
-20,
-66,
47,
38,
-26,
5,
38,
-44,
-18,
-30,
-9,
-4,
20,
-4,
2,
-7,
-8,
-3,
-45,
-6,
7,
-41,
5,
52,
3,
4,
1,
31,
-62,
-30,
-6,
0,
4,
1,
-31,
-49,
7,
43,
-48,
2,
-19,
-39,
6,
19,
41,
36,
18,
-4,
12,
-19,
7,
49,
47,
-33,
16,
-29,
-7,
-7,
12,
17,
-3,
3,
-18,
-18,
39,
30,
3,
21,
-17,
12,
7,
41,
-64,
-18,
44,
-37,
-45,
-32,
-35,
16,
-26,
5,
-3,
20,
-12,
-16,
49,
17,
-39,
-16,
-38,
-12,
-40,
-31,
28,
-18,
-35,
0,
46,
-35,
-15,
0,
-10,
21,
14,
32,
43,
-13,
81,
21,
1,
5,
-20,
26,
44,
20,
-33,
16,
-45,
-14,
-56,
-39,
23,
-2,
38,
-29,
-40,
28,
-10,
-7,
-43,
24,
56,
9,
-24,
-5,
25,
-25,
12,
15,
7,
-24,
-31,
-19,
48,
-36,
-9,
21,
-3,
2,
-6,
-2,
16,
-21,
-22,
30,
-28,
58,
-5,
-39,
28,
-20,
-44,
-1,
-2,
-54,
-10,
-11,
1,
3,
30,
7,
-17,
-38,
-23,
-25,
38,
30,
22,
-49,
1,
-19,
10,
37,
-1,
0,
-54,
-10,
-14,
81,
-11,
0,
37,
-26,
1,
-4,
-9,
5,
29,
25,
11,
18,
-18,
-12,
19,
7,
18,
13,
33,
34,
1,
70,
-20,
-44,
38,
-39,
19,
8,
10,
-3,
22,
-6,
-35,
-29,
-29,
13,
-8,
-24,
-25,
-14,
-37,
-22,
38,
1,
-28,
-8,
-19,
-32,
26,
-24,
12,
-21,
-15,
49,
32,
18,
33,
29,
17,
-49,
-53,
44,
40,
-33,
19,
-68,
33,
-2,
50,
52,
-24,
-7,
43,
-4,
24,
45,
7,
-30,
-8,
9,
51,
7,
-3,
7,
-19,
9,
-13,
-3,
35,
26,
-18,
-8,
27,
25,
39,
-34,
17,
30,
1,
43,
-82,
5,
29,
26,
-2,
-45,
46,
-15,
13,
4,
-9,
7,
-32,
1,
5,
10,
-1,
-25,
-28,
-11,
-11,
-11,
25,
-11,
-19,
-42,
-8,
-73,
24,
24,
-19,
11,
7,
-32,
-38,
24,
-5,
14,
-41,
3,
-38,
37,
0,
-2,
32,
-4,
49,
30,
-26,
50,
-52,
35,
-23,
-38,
4,
30,
2,
42,
-18,
49,
-34,
33,
-44,
20,
-25,
-59,
28,
34,
-21,
53,
-26,
-8,
-10,
-15,
-23,
-45,
52,
22,
-32,
-20,
49,
-3,
-45,
-7,
38,
7,
-5,
2,
-5,
-41,
-11,
-49,
-10,
50,
13,
24,
-4,
19,
43,
-58,
-16,
26,
-50,
23,
-5,
43,
-32,
7,
25,
10,
9,
24,
-1,
5,
-4,
52,
-28,
-17,
0,
-49,
26,
-39,
-41,
45,
-40,
-32,
12,
6,
30,
3,
52,
11,
-69,
21,
-16,
39,
29,
6,
-48,
17,
33,
-17,
38,
-14,
-15,
-97,
-6,
-1,
-29,
-2,
-26,
48,
-14,
-3,
-18,
11,
30,
40,
28,
3,
18,
16,
43,
-24,
13,
85,
19,
46,
2,
19,
55,
-42,
29,
30,
-52,
78,
-39,
-3,
37,
5,
-32,
44,
5,
-2,
18,
0,
-23,
25,
44,
-6,
16,
-14,
31,
23,
44,
-1,
-26,
-21,
-2,
-42,
11,
-46,
-12,
-53,
0,
-11,
-43,
27,
-4,
2,
7,
22,
8,
-24,
-19,
11,
18,
2,
18,
-37,
-11,
23,
-46,
14,
-10,
-9,
56,
17,
-19,
21,
-23,
6,
13,
-39,
47,
62,
-56,
5,
-12,
10,
-13,
-7,
-24,
16,
26,
-22,
-47,
-49,
66,
-28,
-38,
-29,
-1,
-6,
-43,
-44,
6,
-29,
-36,
55,
-1,
18,
-22,
22,
66,
3,
-24,
-14,
9,
17,
-65,
-33,
48,
24,
-27,
-38,
-60,
40,
18,
5,
8,
57,
2,
-2,
10,
32,
21,
26,
4,
26,
37,
6,
-18,
-8,
-11,
43,
43,
55,
35,
10,
9,
10,
-1,
3,
30,
-32,
15,
-33,
-24,
-13,
-9,
-24,
-29,
-45,
39,
14,
-64,
-55,
-34,
-15,
-2,
65,
17,
5,
-19,
-44,
-24,
35,
-4,
11
] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an action involving the conversion of personal property. The jury brought in the following verdict: “We, the jury in the above entitled action find in favor of the plaintiff and against the defendants F. F. Lewis $300.00, Mrs. Laurine Storms $300.00, and-, in the sum of $600.00 dollars as actual damages. And we, the jury, find in favor of the plaintiff and against the defendant, Frederick F. Lewis in the sum of $500.00 Dollars exemplary damages, and against the defendant Laurine Storms in the sum of $200.00 Dollars as exemplary damages, and against the defendant Mrs. Roscoe Thompson in the sum of $100.00 Dollars as exemplary damages, and against the defendant Simonton Transfer and Storage Company in the sum of -Dollars as exemplary damages.”
The judgment on the verdict was that the plaintiff recover “from the above-named defendants, Frederick F. Lewis and Laurine Storms the sum of $600.00 as actual damages and that the plaintiff have and recover of and from the above-named defendant Frederick F. Lewis the further sum of $500.00 as exemplary damages and that the plaintiff have and recover of and from the above-named defendant, Laurine Storms the further sum of $200.00 as exemplary damages and that the plaintiff have and recover of and from the defendant, Mrs. Roseoe Thompson the sum of $100.00 as exemplary damages and that the plaintiff have and recover of and from the said defendant Frederick F. Lewis, Laurine Storms, and Mrs. Roseoe Thompson the plaintiff’s costs and disbursements herein taxed at the sum of $105.80.”
The defendants’ four specifications of error are: 1. That the verdict of the jury was contrary to the given instructions, that is, against the “law of the case.” 2. That the jury had no power to apportion damages. 3. That the jury could not assess exemplary damages against Mrs. Roseoe Thompson, since there were no actual damages assessed against her. 4. That the court erred in rendering the foregoing quoted judgment amending the jury verdict, and erred in taxing costs against F. F. Lewis, Laurine Storms and Mrs. Roseoe Thompson.
We shall discuss first the question of whether the jury violated the instructions given in bringing in a verdict holding part of the defendants responsible for damages while freeing the others. It is settled law that the instructions given to the jury become the law of the ease, and a verdict brought in in disregard of them will be set aside. (LeClair v. School Dist. No. 28, 74 Mont. 385, 240 Pac. 391.)
The instrudions claimed to have been disregarded were: “If the defendants (italics ours) unlawfully, and wrongfully took the property owned by the plaintiff from the possession of the plaintiff, it will be your duty to find for the plaintiff in an amount equal to the value of the property belonging to the plaintiff and taken by the defendants”; and also the instruction : ‘ ‘ Unless you do find from a preponderance of the evidence that on or about the 15th day of June, 1938, the defendants, Frederick F. Lewis, Laurine Storms, Mrs. Roseoe Thompson, and Simonton Transfer and Storage Company, did wilfully, un lawfully, or wrongfully take and carry away personal property belonging to the plaintiff and described in the complaint from the possession of the plaintiff, your verdict must be for the defendants. ’ ’
The precise question raised is, under the instructions that refer to the defendants plurally, and not also singularly, may the jury legally find only one or some of the defendants liable? It certainly could not have been the intention of the trial court to tell the jury that they must find all the defendants liable, or none of them. Such an instruction would have been erroneous, since ‘ ‘ the fact that no case is made or recovery obtained against one defendant does not necessarily enable another defendant to escape liability.” (65 C. J. 65.)
We have no bill of exceptions before us, but apparently the jury found evidence of conversion by some of the defendants only. The jurymen used common “horse-sense” in interpreting the above instructions, realizing that just because all the defendants did' not commit acts of conversion, they must turn them all loose. In a conversion case “a verdict may be found against one or more defendants and in favor of the others.” (65 C. J. 127.)
It seems to us that counsel is trying to “stretch a point” in arguing that the above instructions referred to the defendants plurally only. It might have been more distinct to have added the words “or any one of them” after the word “defendants,” but apparently the jurymen had a full understanding that the plural word “defendants” also included the singular word ‘ ‘ defendant. ’ ’ As this court said in Palmer v. Riek, 108 Mont. 108, 88 Pac. (2d) 16, 18, in quoting from Kargman v. Carlo, 85 N. J. L. 632, 90 Atl. 292, 295: “The ultimate test of the soundness of instructions is, not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary men and jurors understand the instructions as a whole.”
A more serious question is presented in the second specification of error. May a jury apportion damages among joint tort-feasors? In so far as the attempted apportionment by the jury of compensatory damages is concerned, the general rule is that, “In the absence of a statute authorizing a jury to sever or apportion damages against joint tort-feasors, an assessment of damages against those sued jointly for a wrong must be for one sum against those found liable.” (30 A. L. R. 790; 108 A. L. R. 792; 64 C. J. 1084; 27 R. C. L. 893.) Except for a small minority of jurisdictions (a few courts have upheld the right of a jury to apportion actual damages), all the courts have followed the foregoing quoted rule. However, all courts have found difficulty in determining what to do with such verdicts that attempt to apportion actual damages. The two A. L. R. annotations, supra, set forth the various methods used by the courts in correcting irregular verdicts. As stated in Whitney v. Tuttle, 178 Okl. 170, 62 Pac. (2d) 508, 510, 108 A. L. R. 789: “The authorities are unanimous that such a verdict should be sent back for amendment or correction by the jury. The trial court should have done so in this case, but did not, and we now come to the aspect of the matter about which there is some difference of opinion and procedure. What must be done with such verdicts? Very few states hold them absolutely void. Most jurisdictions adopt rules which avoid the necessity of reversal and retrial, and we believe this is the better practice.” (And see'see. 9359, Rev. Codes.)
There seems to be a recognized difference in most jurisdictions between a lump sum verdict which is followed by an attempted apportionment, and a verdict that does not state a lump sum to be allowed plaintiff, but assesses separate damages against separate defendants. In the former situation, most jurisdictions are favorable to allowing the full lump sum against all the defendants jointly, and treating the attempted apportionment as surplusage. (Whitney v. Tuttle, supra.) Striking out the attempted apportionment can be done either by the trial court or the appellate court (27 R. C. L. 893), but it seems to us that the commendable practice would be for the trial court to send the verdict back to the jury with instructions to correct it
In the present case, the jury stated the total actual damages to be $600, but then also tried to divide them — $300 against F. F. Lewis and $300 against Laurine Storms. "We think such a verdict fits exactly into that type of case where most jurisdictions would strike out the division of damages and enter judgment against the defendants named for the lump sum stated in the verdict. We hold that the trial court did not err in so. entering judgment in this case.
As to whether the jury could properly apportion exemplars'damages, as it did in this ease, viz.: Assessing $500 exemplary damages against F. F. Lewis and $200 damages against Laurine Storms, our court has expressly held that it may. (Edquest v. Tripp & Dragstedt Co., 93 Mont. 446, 19 Pac. (2d) 637.)
However, the verdict and judgment against Mrs. Roseoe Thompson, assessing exemplary damages only, cannot stand. A finding of actual damages must be made as a predicate to exemplary damages. (Gilham v. Devereaux, 67 Mont. 75, 214 Pac. 606, 33 A. L. R. 381.) Also, since the judgment against Mrs. Thompson must be reversed and set aside, that part of the judgment taxing costs against her must also be set aside.
The judgment is affirmed, except as against Mrs. Roseoe Thompson, and as to her it is ordered set aside.
Mr. Chief Justice Johnson and Associate Justices Arnold and Angstman concur.
Mr. Justice Morris, deeming himself disqualified, takes no part in the foregoing decision.
|
[
-57,
23,
-12,
-49,
-38,
-22,
44,
-10,
1,
5,
61,
36,
32,
24,
-19,
-40,
-51,
-26,
34,
-8,
-6,
-78,
-34,
1,
-7,
-42,
51,
3,
-12,
-6,
-14,
10,
2,
30,
-48,
32,
-70,
37,
-43,
-31,
26,
-29,
4,
-5,
-9,
18,
51,
-54,
24,
-16,
-14,
-46,
-12,
-1,
28,
-7,
-2,
32,
-40,
-2,
28,
-26,
-27,
24,
1,
-76,
-39,
-13,
-13,
-13,
-11,
3,
67,
-68,
-9,
-25,
-31,
5,
-73,
10,
-53,
-61,
44,
15,
-9,
-31,
23,
-54,
-12,
-34,
-12,
18,
60,
10,
25,
32,
51,
-28,
-49,
31,
-24,
-53,
-17,
81,
6,
-9,
-28,
25,
26,
22,
-22,
22,
-7,
21,
-89,
26,
32,
-23,
-22,
-29,
-13,
26,
39,
-58,
5,
32,
-50,
-4,
41,
-18,
50,
25,
-34,
32,
-28,
0,
-21,
-9,
-4,
43,
-4,
-18,
-17,
20,
-30,
52,
-21,
13,
-11,
-75,
-41,
-8,
57,
29,
35,
-76,
-28,
-44,
22,
-37,
42,
-39,
-19,
-42,
27,
-35,
-13,
-6,
-8,
-33,
33,
-74,
2,
-31,
21,
56,
-12,
-63,
-63,
-66,
26,
40,
-22,
6,
-8,
-38,
40,
17,
4,
-5,
77,
17,
-54,
-59,
-50,
5,
-6,
13,
31,
8,
5,
-50,
-63,
-11,
25,
3,
37,
-28,
31,
-10,
-20,
-18,
-17,
-13,
-3,
35,
-2,
-75,
-38,
-23,
-24,
9,
-22,
-25,
-8,
-60,
26,
0,
13,
46,
-50,
13,
-25,
-20,
-27,
-26,
-3,
0,
-42,
-27,
-26,
7,
26,
-10,
-32,
4,
-44,
7,
-40,
49,
1,
-13,
30,
28,
8,
64,
26,
19,
-55,
-17,
29,
24,
-21,
6,
-24,
-9,
26,
-1,
-14,
-19,
4,
7,
0,
45,
38,
-10,
-23,
-2,
16,
15,
-19,
-28,
34,
14,
18,
36,
14,
-1,
47,
-6,
60,
4,
33,
-23,
15,
38,
13,
12,
-37,
9,
-31,
-41,
31,
49,
20,
9,
8,
6,
-14,
11,
-39,
-43,
-6,
-42,
27,
78,
-69,
22,
6,
3,
22,
27,
-14,
11,
28,
13,
4,
-78,
-17,
25,
17,
49,
-12,
0,
45,
-56,
38,
30,
24,
-29,
17,
-22,
7,
-42,
6,
12,
-10,
38,
-55,
26,
-37,
-17,
-49,
69,
-5,
-1,
0,
31,
-3,
52,
42,
7,
36,
-31,
2,
39,
-3,
-56,
-16,
48,
-2,
20,
7,
61,
-14,
-5,
-6,
-14,
-2,
23,
13,
0,
6,
-48,
-6,
17,
20,
-65,
-19,
44,
-8,
39,
25,
20,
13,
-13,
-44,
-62,
-49,
-15,
-66,
30,
9,
-30,
-81,
45,
-14,
-10,
-55,
-53,
13,
-44,
91,
-52,
0,
-5,
19,
-32,
1,
4,
9,
12,
48,
-8,
-7,
-21,
28,
30,
-57,
-23,
-31,
82,
-1,
22,
27,
-10,
7,
29,
20,
22,
-23,
91,
-59,
22,
1,
6,
-9,
15,
80,
59,
2,
-5,
31,
43,
57,
40,
53,
-59,
19,
1,
11,
-15,
22,
-13,
0,
-40,
-3,
5,
-9,
-4,
-7,
34,
70,
14,
43,
6,
-55,
-27,
17,
27,
-2,
-5,
10,
-2,
-49,
22,
23,
-5,
-51,
-55,
47,
25,
-19,
-2,
-23,
-65,
-7,
29,
-16,
-59,
-35,
5,
34,
-63,
-12,
-10,
-10,
-12,
26,
1,
65,
23,
36,
51,
10,
-42,
-17,
-23,
62,
17,
-15,
-41,
-90,
32,
-11,
-13,
51,
15,
0,
-26,
-20,
11,
-65,
19,
-15,
-11,
-11,
-26,
50,
-46,
-15,
8,
-19,
-2,
0,
23,
-11,
-11,
14,
0,
0,
-27,
47,
24,
-20,
-51,
-8,
-18,
35,
9,
9,
35,
-57,
-11,
27,
-41,
18,
-90,
15,
-15,
25,
-32,
-36,
-5,
-30,
-35,
-14,
-21,
0,
-13,
1,
35,
2,
-28,
7,
-11,
22,
16,
-5,
49,
7,
15,
-29,
17,
-25,
-41,
-6,
-31,
-8,
17,
-7,
-44,
10,
-9,
8,
-62,
0,
-3,
34,
6,
44,
-13,
11,
13,
40,
-23,
-32,
-34,
-1,
-15,
6,
-21,
0,
35,
47,
-55,
-66,
-54,
-73,
0,
23,
19,
-35,
50,
-87,
44,
22,
39,
-32,
-58,
21,
20,
43,
-8,
-20,
-4,
8,
-2,
0,
-19,
-2,
-6,
-2,
-39,
27,
-10,
35,
0,
-31,
-22,
38,
47,
-5,
38,
-2,
-6,
64,
-23,
33,
6,
-31,
-47,
26,
13,
30,
25,
-3,
13,
-25,
0,
21,
-26,
1,
54,
-1,
-38,
-3,
-27,
-5,
-38,
-11,
20,
-48,
44,
-26,
32,
74,
26,
-18,
37,
29,
-32,
9,
30,
1,
50,
4,
31,
-13,
5,
6,
3,
-57,
2,
-18,
-20,
0,
-27,
-55,
17,
-4,
-36,
16,
-74,
-51,
-45,
56,
8,
14,
39,
24,
63,
-28,
78,
-8,
4,
-33,
-24,
29,
14,
-24,
18,
-6,
-50,
5,
18,
37,
24,
25,
8,
18,
12,
49,
-12,
-41,
2,
-32,
42,
-33,
-10,
10,
20,
-14,
9,
17,
26,
-7,
18,
-32,
-24,
-34,
20,
-6,
37,
-2,
40,
52,
25,
10,
1,
-1,
22,
-31,
0,
-12,
22,
40,
7,
24,
25,
-26,
45,
20,
11,
-37,
-29,
-21,
42,
-9,
-18,
10,
54,
33,
3,
26,
36,
-20,
-3,
18,
36,
-6,
4,
7,
-10,
40,
5,
10,
10,
-17,
45,
-12,
-12,
29,
36,
13,
-8,
-27,
26,
-24,
46,
-6,
-43,
-90,
48,
-16,
28,
46,
26,
-18,
-58,
16,
0,
-48,
38,
6,
63,
-5,
5,
-35,
-45,
28,
-13,
46,
-33,
-63,
20,
50,
6,
77,
-1,
4,
43,
-24,
-11,
36,
4,
9,
8,
-31,
41,
-22,
74,
-2,
16,
-2,
64,
23,
-7,
25,
22,
-8,
47,
-26,
25,
35,
3,
3,
4,
-80,
49,
-11,
34,
33,
4,
9,
-14,
-40,
-58,
33,
-55,
-8,
42,
-18,
40,
27,
-43,
45,
32,
-37,
-10,
64,
-42,
-22,
-4,
0,
13,
-2,
-36,
10,
-2,
24,
-21,
-5,
-7,
-3,
13,
9,
18,
16,
21,
-59,
-20,
14,
12,
0,
9,
-31,
-12,
-65,
0,
12,
-28,
42,
54,
-12,
-33,
-18,
21,
-34,
-13,
31,
8,
48,
39,
16,
-24,
-1,
-54,
41,
1,
-58,
6,
38,
-41,
25,
3,
24,
-44,
21,
-28,
28,
8,
-26,
-53,
-11,
-44,
86,
-16,
-52,
-23,
31,
-34,
41,
47,
11,
-125,
-22,
13,
6,
16,
-5,
1,
74,
-3,
-6,
-21,
69,
12,
1,
-43,
-49,
-21,
17,
-26,
-25,
-23,
13,
33,
-5,
-16,
-32,
-8,
25,
33,
-13,
56,
23,
31,
0,
0,
13,
41,
18,
37
] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an original proceeding for a writ of supervisory control to annul an order of the respondent court. The facts, briefly stated, are these:
The Montana Consolidated Mines Corporation has been engaged in mining in Broadwater and Lewis and Clark counties. It became, and now is, heavily indebted. On April 17, 1940, the Minmont Company brought an action against it to foreclose a real estate mortgage and asked that a receiver be appointed to preserve the property during the pendency of the foreclosure suit. Such receiver was appointed. On April 24th the receiver rendered an account and petitioned the court for authority to make certain expenditures from moneys to be advanced by the mortgagee. These expenditures included the payment of certain liens attaching by operation of law. In addition to these and the necessary expenditures for the preservation of the property, authority was asked to spend not to exceed $3,000 per month for the purpose of exploration and development work in and on the mining properties in both counties. The court granted the request of the receiver in its entirety and made an order to the effect that the amount of the expenditures thus made be added to the face of the mortgage, and in effect gave it priority over the claims of general creditors. Relator complains of this order so far as it applies to exploration and development work.
The relator is a general unsecured creditor and represents himself to be one of several having claims in the aggregate of about $110,000. He argues that the court has no authority to authorize the receiver to borrow money to spend for the purpose of carrying on the mining business by exploration or development and to allow the mortgagee who advances the money to add it to the face of the mortgage, and that the authority of the receiver in these respects should be limited to whatever is necessary to preserve the property.
Section 9306, Revised Codes, gives the following authority to the receiver and the court: ‘ ‘ The receiver has, under the control of the' court, power to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize.”
As will be noted, the statute authorizes the receiver to “do such acts respecting the property as the court may authorize.” This language gives the court broad discretion, and we cannot say that there was an abuse of discretion in authorizing borrowing for the purpose complained of here. Such authority seems to be well recognized. (1 Clark On Receivers, 2d ed., sec. 463; Tardy’s Smith on Receivers, 2d ed., II, see. 553; 53 C. J. 190, see. 267; 23 R. C. L., see. 96; Decker Bros. v. Berners Bay Min. & M. Co., 2 Alaska, 504.)
However, authorization for the borrowing by the receiver of a private, as distinguished from a public or quasi public, corporation, for the purpose of continuing the business is not without restrictions or limitations. The indebtedness created by the order of the court for the further development of the property cannot be given preference over the claims of secured creditors. (53 C. J. 190; 23 R. C. L. 96; and see cases annotated in 40 A. L. R. 244.)
As against unsecured creditors such an indebtedness when so directed by the court has priority. The unsecured creditor is in the same situation as he would be were a second mortgage to be issued by a debtor. The second mortgagee has priority over existing unsecured creditors. Certainly the mortgagor here could- borrow money for development purposes and execute a second mortgage therefor and thus place the second mortgagee ahead of unsecured creditors. When the receiver acts under court order he is acting for the corporation mortgagor, and may do that which the mortgagor might have done. We do not pass on the question whether the unsecured creditor, if he became a lien creditor by attachment or otherwise, would have priority over those advancements contemplated but not made at the time the lien attached. (See 41 C. J. 525, and 19 R. C. L. 429.) That question is not now before us.
We see no reason why the money advanced may not be secured as contemplated in the order, provided, however, the priorities of secured creditors are not disturbed.
The writ applied for is denied and the proceedings dismissed.
Mr. Chief Justice Johnson and Associate Justices Morris, Erickson and Arnold concur.
|
[
27,
5,
9,
-2,
12,
-11,
33,
-4,
-2,
13,
46,
-18,
33,
-19,
5,
-48,
0,
-60,
-1,
41,
-8,
-17,
10,
-8,
15,
-36,
-1,
-35,
-11,
13,
-23,
-45,
-17,
18,
-61,
22,
-23,
-11,
37,
-42,
17,
39,
26,
45,
-24,
20,
13,
-73,
-28,
-37,
35,
2,
33,
47,
3,
-11,
-37,
-15,
-18,
17,
7,
-64,
41,
34,
27,
41,
9,
-22,
5,
-16,
-16,
0,
15,
-25,
29,
14,
38,
1,
-65,
-54,
-36,
-31,
2,
-10,
2,
5,
-9,
-21,
-43,
10,
3,
-7,
-8,
2,
30,
-3,
24,
-1,
18,
37,
9,
-16,
-8,
4,
33,
-10,
-19,
-23,
31,
44,
-12,
-70,
-36,
20,
-77,
62,
-13,
47,
17,
-32,
-15,
-14,
-35,
-34,
-29,
29,
-5,
7,
-25,
6,
-50,
3,
10,
50,
-30,
-44,
16,
-70,
-10,
-16,
-4,
-56,
44,
-27,
-31,
-19,
41,
-41,
13,
-9,
-6,
-49,
20,
66,
67,
-73,
9,
-14,
-10,
-17,
36,
-15,
-5,
-6,
-22,
27,
-7,
-10,
-53,
14,
13,
5,
-27,
-4,
6,
-30,
1,
-17,
8,
-38,
7,
26,
8,
-33,
0,
37,
33,
-15,
72,
-1,
-1,
-43,
53,
16,
-27,
-1,
7,
1,
37,
-4,
-38,
63,
3,
34,
-47,
-15,
4,
-26,
3,
11,
12,
31,
-48,
15,
-23,
21,
-18,
-23,
31,
-29,
32,
20,
-25,
6,
-6,
-22,
-11,
13,
-18,
-33,
-41,
-55,
0,
13,
-1,
57,
50,
22,
-43,
-33,
4,
1,
-37,
-13,
-31,
26,
-34,
-30,
12,
-2,
-58,
-37,
28,
26,
26,
11,
-24,
31,
-22,
-70,
53,
-38,
-19,
52,
20,
-16,
-41,
8,
-13,
-13,
-8,
4,
50,
33,
-29,
4,
18,
6,
-25,
-38,
3,
-15,
-7,
27,
-24,
14,
24,
-3,
-44,
23,
22,
-32,
50,
43,
5,
-27,
4,
-49,
45,
56,
-35,
-10,
-2,
12,
26,
29,
-54,
8,
4,
-29,
21,
31,
-49,
-24,
31,
-4,
-26,
-23,
3,
-15,
90,
26,
-35,
-33,
28,
29,
32,
20,
-3,
2,
-13,
9,
2,
31,
0,
5,
-8,
-36,
-19,
5,
-2,
-15,
36,
-16,
-27,
13,
-47,
-17,
-40,
32,
-34,
55,
-68,
98,
2,
35,
5,
-6,
1,
32,
22,
-9,
-33,
-22,
-10,
-24,
-47,
-55,
-6,
2,
11,
29,
-14,
-25,
5,
15,
-23,
-29,
-11,
15,
34,
0,
47,
-7,
52,
8,
27,
-8,
-39,
-21,
-47,
-24,
-11,
49,
-51,
-8,
18,
-48,
-29,
-30,
-43,
-4,
-67,
-16,
0,
-24,
66,
5,
16,
-2,
12,
2,
-31,
0,
-33,
15,
19,
32,
30,
3,
-16,
-39,
31,
-8,
30,
-13,
8,
-7,
-67,
64,
-33,
34,
4,
1,
-31,
-58,
28,
-29,
-47,
36,
0,
9,
11,
4,
25,
-20,
-46,
-29,
40,
-21,
-13,
21,
-17,
0,
-34,
74,
48,
-41,
0,
-33,
36,
-23,
55,
-18,
-4,
-6,
43,
-9,
25,
20,
37,
29,
-14,
0,
12,
59,
-45,
26,
-38,
19,
-35,
4,
-20,
41,
-21,
16,
-43,
-2,
2,
29,
6,
21,
0,
-22,
-17,
-43,
-6,
-27,
17,
18,
10,
0,
54,
17,
-19,
7,
20,
-29,
-26,
61,
15,
-41,
37,
45,
14,
53,
-16,
6,
20,
59,
19,
-3,
23,
-15,
-51,
28,
-29,
0,
48,
-39,
-44,
3,
-29,
-6,
-54,
32,
41,
2,
-19,
-10,
-6,
-33,
-12,
41,
-28,
28,
-14,
3,
2,
0,
-18,
-30,
13,
53,
8,
-22,
-24,
44,
13,
-7,
0,
41,
-1,
-2,
-6,
-7,
-80,
-31,
-36,
19,
6,
13,
-19,
-15,
18,
-67,
4,
-30,
15,
14,
-11,
-22,
-4,
-46,
0,
3,
-4,
-38,
4,
0,
-1,
-16,
12,
14,
-42,
-20,
-35,
10,
-11,
11,
-69,
9,
1,
-45,
-30,
-46,
10,
41,
12,
38,
-18,
-13,
28,
68,
-25,
5,
-8,
-20,
18,
-7,
59,
-11,
-2,
24,
-7,
12,
-15,
15,
-27,
44,
-39,
-40,
31,
4,
6,
-35,
-14,
-31,
-2,
-38,
-16,
15,
-26,
-49,
-5,
-41,
69,
-6,
69,
25,
5,
30,
40,
-34,
62,
0,
66,
-20,
47,
-11,
71,
-8,
17,
7,
4,
-27,
17,
57,
37,
-5,
15,
-21,
49,
24,
18,
-19,
3,
-31,
20,
-36,
-78,
-10,
4,
39,
-23,
10,
75,
12,
-12,
49,
21,
2,
-53,
23,
-43,
-11,
26,
10,
16,
4,
33,
-37,
23,
19,
-12,
54,
-6,
0,
-22,
52,
-8,
-14,
-2,
-10,
-9,
0,
53,
-16,
-48,
-35,
-22,
-78,
14,
-20,
24,
3,
11,
-14,
-51,
20,
8,
-15,
-21,
26,
-11,
9,
-16,
-5,
-18,
-22,
9,
19,
44,
25,
-29,
9,
4,
-11,
-40,
-1,
22,
-13,
-44,
18,
-30,
-21,
-39,
36,
12,
8,
42,
-31,
-27,
44,
-13,
-18,
-43,
-37,
-27,
-55,
-3,
-25,
-37,
-3,
4,
-11,
0,
49,
45,
23,
-32,
-17,
0,
-1,
56,
-51,
5,
63,
15,
36,
-13,
52,
38,
-44,
-19,
42,
29,
2,
16,
1,
-15,
24,
-9,
-10,
55,
6,
-13,
25,
21,
-16,
-21,
-43,
34,
-17,
-7,
29,
-34,
34,
-22,
2,
-39,
-4,
17,
-2,
-21,
16,
-14,
17,
17,
75,
7,
14,
-29,
16,
13,
-35,
34,
-14,
38,
-36,
3,
-51,
-13,
0,
3,
13,
-34,
31,
-20,
72,
-37,
6,
11,
41,
7,
-21,
-25,
9,
-22,
7,
40,
82,
-38,
23,
69,
-47,
-17,
12,
-21,
29,
24,
38,
52,
30,
7,
4,
8,
-19,
34,
17,
-43,
42,
-2,
24,
-40,
5,
79,
62,
27,
46,
-3,
-43,
-53,
32,
-18,
-26,
4,
-62,
-44,
-36,
-2,
-1,
11,
0,
53,
22,
-1,
79,
30,
52,
31,
15,
-12,
-45,
-62,
53,
24,
-38,
-19,
29,
-3,
22,
-38,
21,
31,
-12,
-6,
-19,
47,
42,
-22,
6,
0,
41,
14,
-27,
-23,
29,
-35,
0,
-31,
-42,
56,
17,
1,
30,
28,
-45,
39,
-1,
5,
27,
38,
20,
46,
43,
-54,
21,
21,
-48,
-55,
14,
33,
-59,
-15,
-6,
-9,
-43,
6,
-61,
2,
-19,
-9,
-25,
-22,
30,
69,
-4,
27,
-36,
45,
18,
16,
25,
-7,
-26,
-20,
-21,
5,
-27,
51,
-6,
19,
19,
5,
25,
-5,
-23,
45,
18,
14,
-15,
-15,
-35,
9,
10,
-34,
14,
9,
-52,
5,
-58,
3,
13,
1,
-14,
-3,
-21,
10,
-11,
-18,
-21,
-32,
22
] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
Relatrix Frances T. Fisher filed herein her application and affidavit for a writ of prohibition to prevent the respondents court, judge and clerk from proceeding further in Cause No. 17,734, a divorce action in which Maurice S. Fisher is plaintiff and relatrix is defendant.
It appears from the affidavit in support of the application that on October 7, 1939, the complaint in said divorce action was filed and summons was issued and returned with the sheriff’s certificate that he was unable to find the defendant within Lewis and Clark county. On the same day affidavit for publication was filed, order for publication was issued, and the deputy clerk’s affidavit of mailing copies of complaint and summons to relatrix was filed.
It further appears from the affidavit that on November 17, 1939, relatrix made a special appearance in the divorce action by affidavit and motion to quash the service of summons, upon the grounds that no valid summons for publication had been issued, and that no proper or sufficient publication had been had in that the four publications were made on Sundays. On December 19, 1939, the motion to quash was denied and defendant given time to appear generally.
With reference to the question of the issuance of summons for publication, the allegations of the affidavit were, not that such summons was not issued, but merely that such summons had not been returned or filed in the clerk’s office, and that it was impossible to ascertain from the court records whether such summons for publication had been issued. However, the fact of the publication of the summons on Sundays was directly set forth, so as to raise the question of the validity of such service. Since at least one substantial question was raised by the application and affidavit which has not heretofore been ruled upon by this court, an alternative writ of prohibition was issued.
Respondents appeared here by motion to quash the writ and also by motion to strike from the affidavit for the writ, both of which were served on the relatrix’ attorneys three days before the time set for hearing; and also by an answer which, without waiver of the motions, was filed at the hearing together with three supporting affidavits, one of which, made by the deputy clerk of the district court, showed that the summons for publication was actually issued by him on October 7, 1939, under the seal of the court. The answer also alleged that the summons for publication was so issued on that day after the filing of the affidavit for publication.
At the hearing in this court relatrix filed her motion to strike the three supplemental affidavits. However, it will not be necessary to rule upon the same nor upon the respondents’ motions to quash the writ and to strike from the affidavit for the writ, because of the fact that in any event it is necessary to deny, the peremptory writ upon the merits.
As noted above, relatrix’ allegation is not that a valid summons for publication was not issued, but merely that it has not been returned and that the fact of its issuance does not affirmatively appear from the records and files of the district court. She then seeks to rely upon the statutory presumption that official duty has been duly performed (sec. 10606, subd. 15, Rev. Codes), and the further presumption, which she seeks to base thereon, that therefore no summons for publication was ever issued. On the other hand, also as noted above, the answer affirmatively alleged that summons for publication was actually issued on October 7, 1939.
Section 9854, Revised Codes (made applicable to writs of prohibition by section 9864), provides that the applicant may contradict the allegations of the answer by proof. However, no proof or offer of proof contra was made by the applicant and the allegation of the answer must accordingly be taken as true. Relatrix’ first contention is therefore removed from the case and the only question remaining is with regard to the Sunday publication.
There is no common law directly applicable to the publication of summons, since such service was unknown to the common law, and is of comparatively recent and strictly statutory origin (50 O. J. 496, see. 105; 502, sec. 114) and in derogation of (or, more accurately stated, without reference to) the common law. (Palmer v. McMaster, 8 Mont. 186, 19 Pac. 585.)
Nor is there any direct statutory prohibition against publication of summons on Sunday. Section 9118, Revised Codes, requires the clerk to direct the publication to be made “at least once a week for four successive weeks.” It is not necessary to cite the statutory definition: “A week consists of seven consecutive days ’ ’ (see. 4280, Rev. Codes), to establish the fact that Sunday is part of a week, and that publication upon four successive Sundays is publication “once a week for four successive weeks.” Such publication is therefore valid unless forbidden, by some general common law, constitutional or statutory prohibition. The only statute cited by relatrix is section 8850, Revised Codes, which provides that “No court must be open, nor must any judicial business be transacted, on Sunday” (with certain exceptions); “but injunctions, writs of prohibition, and habeas corpus may be issued and served on any day.” Since the latter provision was added in the 1895 Code it has been assumed that the personal service on Sunday of other process than that named was forbidden as the transaction of judicial business under the maxim “expressio unius est exclusio alterius.” Prior to that time personal service of process on Sunday had been held void in Montana under the common law, as the transaction of judicial business. (Hauswirth v. Sullivan, 6 Mont. 203, 9 Pac. 798.) Later, by way of dictum in Burke v. Inter-State S. & L. Assn., 25 Mont. 315, 64 Pac. 879, 87 Am. St. Rep. 416, and in State ex rel. Hay v. Alderson, 49 Mont. 387, 142 Pac. 210, Ann. Cas. 1916B, 39, service of process on Sunday was spoken of as voidable rather than void.
It would be pointless here to discuss the validity of personal service of process on Sunday, under either the common law or the statutes and decisions cited, or to express an opinion whether personal service of process is a judicial rather than merely a ministerial act or business. In any event it seems clear that the act of publication of a newspaper as part of the process of service by publication is not a judicial act, nor to be classified as “judicial business.”
In the early California case of Savings & Loan Soc. v. Thompson, 32 Cal. 347, 11 Pacific States Reports 347, an attack was made upon the service because some of the publications were made on Sunday. The court said: “We do not think this fact vitiates the service on the ground that, under our statute, Sunday is dies non. The service is not actual and is not made by a single act.”
The same rule is true here, where all of the publications were made on Sunday. Assuming, without holding, that personal service of summons could not have been made upon relatrix on Sunday, the publications on that day are not the equivalent of such service and are not objectionable as such. They are merely a part of the statutory method of broadcasting notice so that the defendant may perhaps receive it; and they are supplemented by the mailing of copies of summons and complaint to defendant, where her place of residence is known. Neither publication nor mailing constitutes service, and the purpose of neither is fully accomplished by the mere act of publication or mailing. The acts merely set in motion one mailed notice and four published notices in the hope that at least one of them will reach the defendant; and publication on Sunday is at least as likely to accomplish that effect as publication on another day, which probably explains why the legislature did not forbid it.
We can find no statutory, constitutional or common law prohibition against the publication of notices on Sunday. The publi cation here, like that of the proposed constitutional amendment involved in State ex rel. Hay v. Alderson, supra, was a purely ministerial act for the purpose of giving public notice to interested parties, and the fact that it gave notice of a judicial proceeding did not convert it into a judicial act or make it the transaction of judicial business.
The application for a peremptory writ is therefore denied and the proceedings dismissed.
Associate Justices Morris, Arnold, Erickson and Angst-man concur.
|
[
18,
-1,
21,
19,
2,
-44,
-10,
6,
0,
30,
-20,
-43,
-14,
6,
-7,
-3,
39,
-32,
87,
-28,
-15,
18,
-14,
-54,
21,
18,
-36,
-8,
-17,
17,
37,
-33,
16,
8,
32,
7,
26,
13,
21,
-28,
24,
8,
-22,
17,
3,
-20,
6,
37,
-10,
-2,
-8,
-17,
-13,
12,
-5,
-17,
1,
-13,
-13,
-12,
5,
-6,
0,
-4,
8,
6,
26,
39,
17,
-20,
32,
-48,
26,
-18,
-27,
10,
-28,
-26,
-15,
55,
-73,
3,
42,
-36,
24,
5,
2,
-19,
8,
-30,
0,
16,
-34,
-5,
12,
24,
1,
9,
28,
7,
2,
8,
-84,
16,
69,
11,
-21,
23,
66,
29,
67,
43,
-38,
19,
8,
0,
-11,
11,
28,
-70,
-15,
72,
3,
65,
16,
-31,
-33,
74,
68,
0,
6,
0,
40,
-36,
4,
-9,
24,
-26,
-34,
-8,
27,
-19,
-13,
49,
1,
36,
1,
53,
-36,
-10,
19,
-13,
-17,
74,
6,
-8,
12,
-37,
-15,
-29,
6,
-12,
17,
-34,
-2,
17,
-8,
-22,
-58,
-42,
52,
5,
-24,
48,
-21,
10,
-25,
-38,
-27,
22,
27,
82,
-45,
-30,
-2,
-11,
25,
-14,
20,
13,
-7,
-29,
45,
-27,
6,
-7,
-25,
48,
31,
-20,
0,
27,
22,
-4,
-2,
22,
-51,
-7,
12,
25,
-27,
-31,
-1,
-41,
-46,
-22,
-55,
16,
-15,
40,
24,
-23,
28,
35,
-74,
-32,
28,
-10,
48,
18,
2,
-2,
-3,
-17,
-11,
19,
18,
8,
0,
34,
-37,
-4,
15,
-26,
-1,
59,
-36,
33,
-34,
-11,
24,
-23,
10,
23,
-43,
21,
9,
28,
-9,
2,
17,
12,
22,
34,
-23,
-24,
18,
14,
40,
14,
-21,
28,
0,
8,
12,
-39,
6,
-9,
33,
68,
-38,
-5,
-22,
-28,
2,
11,
15,
-28,
0,
-21,
29,
-23,
-46,
-11,
-33,
-4,
-41,
-2,
0,
21,
0,
6,
-16,
27,
-68,
-35,
-43,
2,
-20,
-2,
19,
57,
12,
-37,
-6,
16,
-18,
9,
1,
-40,
31,
100,
0,
13,
-39,
38,
6,
31,
-15,
1,
15,
26,
-28,
11,
-29,
3,
20,
-21,
-13,
-19,
16,
-33,
-8,
56,
-79,
12,
34,
10,
-5,
43,
-26,
12,
11,
16,
-58,
26,
10,
-46,
24,
-51,
3,
30,
-7,
-23,
-19,
54,
14,
-18,
-2,
19,
-33,
8,
-20,
7,
38,
17,
6,
0,
20,
17,
-47,
-23,
-9,
-13,
-25,
94,
38,
12,
-49,
-76,
-5,
-34,
-13,
-5,
-24,
12,
29,
-20,
5,
-18,
-1,
24,
-5,
-16,
-40,
14,
-21,
23,
1,
7,
60,
-2,
16,
7,
73,
-44,
-11,
19,
-10,
1,
-20,
-45,
9,
-29,
-32,
26,
-8,
25,
-10,
-22,
-33,
10,
-1,
8,
7,
-21,
-2,
53,
23,
15,
15,
-7,
-51,
15,
-2,
5,
-12,
50,
32,
-31,
2,
14,
13,
51,
-18,
-14,
63,
8,
8,
-15,
2,
21,
8,
-18,
-15,
-1,
11,
-6,
-35,
9,
-4,
19,
6,
19,
-15,
20,
-49,
12,
-10,
-28,
-34,
5,
-2,
-38,
12,
39,
-15,
-36,
-8,
-2,
39,
-34,
-2,
9,
-24,
-55,
13,
-26,
-2,
28,
-25,
-3,
-27,
-73,
-2,
20,
-27,
56,
28,
26,
-8,
-28,
21,
-55,
4,
-21,
22,
43,
-10,
31,
6,
7,
16,
4,
-37,
37,
49,
3,
0,
-27,
-49,
38,
-56,
-21,
-27,
4,
11,
26,
5,
-34,
-36,
-34,
53,
-5,
-61,
23,
-45,
-76,
-11,
6,
17,
36,
-30,
33,
18,
10,
8,
17,
-87,
-19,
17,
11,
-51,
14,
-16,
-29,
-41,
-25,
40,
11,
31,
-42,
-4,
-33,
53,
24,
-7,
3,
-14,
-34,
52,
14,
-65,
-33,
-25,
-37,
6,
25,
-37,
-22,
-45,
-25,
-57,
13,
-1,
19,
5,
35,
-61,
-4,
21,
0,
20,
-5,
-5,
43,
12,
43,
36,
-25,
23,
37,
-31,
55,
-3,
52,
15,
-35,
0,
-10,
46,
-36,
1,
-39,
37,
-7,
-38,
8,
17,
-23,
-11,
-2,
-5,
-30,
-25,
-7,
-36,
15,
-71,
-34,
64,
56,
3,
26,
27,
-2,
36,
-62,
22,
29,
69,
15,
40,
-13,
-8,
-43,
65,
-56,
31,
2,
1,
-48,
0,
-46,
23,
-4,
33,
50,
52,
51,
-20,
-88,
35,
56,
12,
-54,
3,
11,
62,
-52,
44,
4,
-31,
-61,
-5,
-21,
60,
35,
-48,
20,
3,
61,
-23,
40,
-37,
44,
-29,
0,
-5,
-15,
0,
-23,
59,
-1,
-16,
-12,
-5,
-49,
1,
-47,
-12,
-1,
0,
-51,
0,
-37,
46,
-47,
-15,
-41,
-10,
47,
-41,
-7,
58,
3,
-4,
-32,
25,
-15,
38,
16,
20,
-36,
0,
-4,
24,
-13,
19,
3,
1,
-8,
-38,
7,
9,
34,
31,
15,
-8,
38,
37,
-40,
10,
-43,
8,
51,
20,
-15,
-18,
-36,
44,
3,
-57,
11,
-30,
42,
-57,
-33,
-21,
1,
11,
-8,
15,
-1,
-38,
39,
-7,
1,
10,
5,
-27,
7,
-62,
-31,
2,
-42,
40,
18,
3,
34,
0,
-26,
55,
-68,
13,
11,
-46,
-29,
-22,
45,
22,
16,
13,
-21,
23,
60,
-20,
41,
-3,
15,
-31,
2,
6,
-59,
-5,
-51,
5,
-8,
-26,
-58,
11,
-38,
50,
-7,
32,
-30,
4,
21,
-10,
29,
54,
-23,
51,
16,
14,
20,
14,
-5,
-7,
9,
4,
19,
15,
-13,
21,
4,
42,
-36,
19,
-19,
39,
1,
12,
4,
-29,
-7,
37,
0,
24,
8,
18,
12,
5,
-44,
55,
-23,
22,
-45,
15,
0,
-30,
-45,
40,
17,
-65,
15,
27,
-38,
29,
1,
18,
51,
-31,
10,
-17,
-37,
33,
-4,
-6,
-32,
55,
-5,
38,
41,
-15,
18,
3,
-42,
-55,
-3,
-49,
29,
0,
6,
7,
-31,
25,
0,
53,
-42,
54,
34,
-35,
-18,
-28,
-13,
-7,
-19,
-20,
24,
53,
-3,
0,
-7,
29,
-23,
-27,
-22,
-8,
46,
50,
-15,
7,
-12,
-19,
11,
-11,
87,
6,
-69,
-65,
17,
23,
-12,
-20,
-38,
-14,
-42,
-60,
-41,
-53,
-36,
-3,
-15,
24,
14,
0,
2,
-4,
-7,
-19,
41,
-21,
-6,
-32,
-59,
-1,
45,
22,
-5,
-9,
-4,
-7,
18,
-25,
-5,
23,
55,
-29,
-13,
-2,
18,
5,
-2,
-21,
-38,
-38,
-3,
29,
-12,
43,
3,
-6,
-9,
53,
12,
-20,
-27,
17,
8,
16,
-22,
29,
-38,
10,
-13,
-7,
21,
-10,
9,
0,
-33,
-33,
-2,
27,
32,
-5,
-14,
-1,
-10,
-54,
37,
9,
-36
] |
MR. JUSTICE ARNOLD
delivered the opinion of the court.
This is an appeal from a judgment rendered in favor of the plaintiff, who brought action against defendant in the district court of Silver Bow county to recover a penalty for failure to surrender to the plaintiff a certificate of ownership of an automobile. The action is grounded upon subdivision (e) of section 1758.3, Revised Codes of 1935, which reads as follows: “(e) In the event any conditional sales vendor or assignee or chattel mortgagee or assignee fails to surrender certificate of ownership to the owner of motor vehicle within twenty (20) days after receiving final payment on conditional sales contract or mortgage, he shall be required to pay said owner the sum of ten dollars ($10) and the further sum of one dollar ($1) for each and every day thereafter that he fails to surrender said certificate of ownership.” This section was amended by Chapter 72 of the 1937 Session Laws by adding “recoverable in a civil action.”
What we deem the material facts are not disputed. The plaintiff purchased an automobile under a conditional sale agreement on February 11, 1935, from J. W. Walter, a dealer at Dillon, Montana, the purchase price being payable in 18 equal monthly installments. All installments were promptly met, the final payment having been made August 11, 1936. It appears that at the time the plaintiff purchased the automobile he lived in Bannaek, Montana, and later moved to Radersburg. The first installments were sent from Bannaek, the last from Radersburg. A witness for the defendant who was the clerk in charge of such matters, testified that on August 12, 1936, after receipt of the final installment, she mailed the certificate of ownership to the plaintiff, addressed to Bannaek, his first residence. The plaintiff, on the other hand, denied ever having received it.
On December 3, 1936, the defendant received a letter from the plaintiff calling its attention to the fact that he had never received the certificate of ownership. This was defendant’s first notice from plaintiff that he had not received the certificate. In reply the manager of the defendant wrote to the plaintiff on December 29, 1936, to the effect that defendant had never received the certificate of ownership and advised plaintiff to write to the dealer at Dillon concerning the certificate. On January 11, 1937, the plaintiff wrote to the registrar of motor vehicles informing him that he had not received the certificate of ownership and asking his advice as to what he should do. The registrar advised plaintiff to take the matter up with defendant and that, if the defendant did not deliver the certificate of ownership, his next step would be to consult an attorney in case he desired to start proceedings and collect the penalty which would be due under the law. This letter was written by the registrar on January 13,1937.
In February, 1937, exact date not appearing, plaintiff wrote the dealer in Dillon about the certificate, and the dealer, by a letter dated February 17, 1937, • endeavored to get the plaintiff to execute an affidavit to the effect that the certificate of ownership had been lost so he could apply for a new certificate, but the plaintiff refused to sign the affidavit until August 31, 1937. After receipt of the affidavit the registrar of motor vehicles executed the duplicate certificate of ownership and sent it to defendant, who in turn mailed it to plaintiff’s attorney, who received it on September 18, 1937. The exact date on which the registrar received the affidavit is not shown in the record.
Prior to these proceedings, and in fact several days before the plaintiff made his last payment, the defendant filed a release of the conditional sale contract with the registrar of motor vehicles relating to the plaintiff’s automobile.
The plaintiff made no offer to prove actual damages, he depending solely upon the language of the statute for the recovery of the penalty. The evidence shows that the plaintiff was the owner of the automobile at the time of trial, and had never made any effort to dispose of it. He proved that 383 days followed the twentieth day after final payment before he received his certificate of ownership. Seemingly the plaintiff was sustained by the trial court in his theory of the case that it was unnecessary to prove anything except failure on the part of the defendant to surrender the certificate of ownership within 20 days from the making of the last payment due under the contract, and that “surrender” as used in subdivision (e) supra, includes receipt by the plaintiff of the certificate. We must bear in mind that the section of the Code upon which this action is based is penal in nature. With proper safeguards in such penal laws they have usually been sustained as being within the power of the legislature to enact. (St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63, 40 Sup. Ct. 71, 64 L. Ed. 139; State v. Crawford, 74 Wash. 248, 133 Pac. 590, 46 L. R. A. (n. s.) 1039; see, also, annotations under this case in 46 L. R. A. (n. s.) 1039.)
Here, plaintiff having sought to enforce the penalty, the statute must be regarded as penal in character. A penalty is a means of punishment. (United States v. Childs, 266 U. S. 304, 45 Sup. Ct. 110, 69 L. Ed. 299.) Penal statutes must receive a rational, sensible construction in preference to one that is unreasonable and probably not intended by the legislature. (Anderson v. Williams, (8 Cir.) 279 Fed. 822.)
We have failed to find any similar statutes in any other jurisdictions, so far as they relate to certificates of ownership for automobiles. Statutes imposing penalties for failure to release and discharge liens and mortgages after payment are found in the several jurisdictions, including Montana. Sections 3086, 8271 and 8695, Revised Codes of 1935, all provide for penalties, but it is significant that in all instances before penalties attach, demand must first be made. As stated in 41 C. J., paragraph 981, “a demand or request to the mortgagee to enter satisfaction of the mortgage is a condition precedent to the right to sue for the statutory penalty. ’ ’
In the law under consideration there is no express provision for demand. The letter which the plaintiff wrote to defendant in December, however, would be equivalent to a demand. “Demand” has been defined as the assertion of a legal right; the assertion of a right to recover a sum of money; a calling for a thing due or claimed to be due; a claim; a peremptory claim to a thing or right; a requisition or request to do a particular thing specified under a claim of right on the part of the person, requesting. (18 C. J. 478.)
In order to make one guilty of “failing” to do something required by law to be done, he must be put on notice and given an opportunity to comply. “Fail” has been defined as meaning fault, negligence or refusal. (2 Words & Phrases, Fourth Series, p. 25.) In such a matter as we now have before us demand is universally required before a party can be said to have “failed” to do a required act.
This court said in Chicago, M. & St. Paul R. Co v. Board of Railroad Commrs., 76 Mont. 305, 247 Pac. 162, 165: “A statute which undertakes to deprive a person of his property without notice and opportunity to be heard certainly is invalid. * * * In Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289, an oft-quoted case, the court said that: The due process of law provision ‘is the most important guaranty of personal rights to be found in the federal or state Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty, or property. This the legislature cannot do nor authorize to be done. “Due process of law” is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature. (Weimer v. Bunbury, 30 Mich. 201.)’ ”
In Webster’s New International Dictionary, second edition, we find “surrender” defined as “to yield to the power or possession of another; to give or deliver up possession of anything upon compulsion or demand; to yield, to render, or deliver up; to give up.” It was the affidavit of plaintiff which finally resulted in his obtaining a certificate of ownership. There was, and could be, no further “surrender” on the part of the defendant.
Section 1758, Revised Codes of 1935, provides among other things: “Both certificate of registration and certificate of ownership shall be issued to any applicant who is both the owner and legal owner as defined by this Act.” Certainly when the defendant released its interest in the automobile as legal owner, then the plaintiff, who ivas owner as defined by the statute, became both the owner and the legal owner of the automobile. The certificate of ownership which was issued originally to the legal owner, being the defendant herein, had no force or virtue after the final payment on the part of the plaintiff, except that the surrender thereof would put plaintiff in a position to secure a new certificate of ownership, as he is required to do within ten days under subdivision (b) of section 1758.2, Revised Codes.
Section 1758.5 reads as follows: “In the event any certificate of registration or ownership shall be lost, mutilated or become illegible, the person to whom the same shall have been issued shall immediately make application for and may obtain a duplicate thereof, upon furnishing satisfactory information to the registrar of such facts and upon payment of a fee of fifty cents (50^).” This, of course, refers to a person who at the time of making the application for a duplicate is the owner or legal owner of the automobile, as section 1758 does not grant the registrar authority to issue certificates to anyone except the owner or legal owner of the automobile.
The trial court rejected an offer of proof from the defendant by its witness, a deputy registrar, that the plaintiff was the only one who, under the facts herein related, was entitled to make an affidavit for and receive a duplicate certificate. Such conclusion, of course is the law, as we have pointed out above.
Having received the release of the conditional sale contract from the defendant, the registrar of motor vehicles was thereupon advised that it no longer had a lien upon the automobile and rightly required the plaintiff, as owner and legal owner of the automobile, to execute the necessary affidavit, in order to procure a duplicate.
The theory upon which this cause was submitted to the jury is shown by Instructions 5 and 7, being as follows:
“Instruction No. 5. Gentlemen of the jury, if you believe from a preponderance of the evidence that the plaintiff never received the certificate of title in question through the United States Mail, then your verdict should be for the plaintiff. ’ ’
“Instruction No. 7. Gentlemen of the jury, you are instructed that, if you find for the plaintiff, your verdict should be in his favor for the sum of three hundred ninety-three ($393.00) dollars. ’ ’
The trial court refused to give defendant’s offered instructions numbered 7A and 16A, which read as follows:
“7A. Gentlemen of the jury, you are instructed that it was the duty of the plaintiff, upon learning that the certificate of title had been lost or destroyed', to apply immediately for a duplicate certificate of title.”
“16A. You are instructed that plaintiff is entitled to no damages for failure to surrender certificate of title until after such time as you find that said plaintiff made a demand upon the defendant, Commercial Credit Company, for the surrender of such certificate of title.”
Refusal to give these instructions, we believe, constitutes reversible error.
Under the above instructions which were given, a purchaser of an automobile who, upon making his last payment, failed to receive a certificate of ownership could delay bringing action for any period short of the statute of limitations, whereupon he could recover a penalty of ten dollars, plus one dollar for each day after the 20th day from the time he made his last payment. This would certainly invite oppression were a purchaser inclined to be avaricious or vindictive. In fact, a dealer would not know under the circumstances related in this case whether or not the plaintiff had in fact ever received the certificate, since the trial court held that demand was not necessary prior to filing action.
Here the plaintiff may by inaction, delay, failure to make demand or failure to notify the dealer that he had not received the certificate, or failure to apply to the registrar for a duplicate certificate, extend and accumulate a large penalty before suit. Can it be said that our legislature intended such a situation where a statute would in effect be a legal ambush in which a purchaser could conceal himself and, when the penalty became large enough in his estimation, without warning leap upon the dealer several years after he has made his final payment, and collect damages which he never suffered, particularly where, as here, the procurement of the certificate of ownership was entirely within his control by simply executing an affidavit ¶ We believe the legislature intended no such result.
It is a principle of natural law and justice that statutes shall not be held to forfeit property except for the fault of the owner or his agents, unless such a construction is unavoidable. (Shawnee Nat. Bank v. United States, (8 Cir.) 249 Fed. 583, 161 C. C. A. 509.) Here, not only does the evidence show circumstances, but we find in the law itself clear provisions giving the power to procure a certificate to the purchaser, after he has been apprised that the dealer cannot surrender it.
The purpose of automobile registration being a police regulation, is to provide a method to deter automobile thefts, and to apprehend thieves. Better had it not been enacted if it is construed in such fashion as to place onerous burdens on honest men and prevent those lawfully entitled to registry from accomplishing their objects through technicalities or official caprice.
We accordingly hold that before a cause of action accrues under the section of the statute relating to penalty for failure to surrender a certificate of ownership, there must first be demand for its surrender; that thereafter the legal owner has twenty days to comply with the demand; that if within that time he fails to surrender the certificate he becomes liable for a penalty of ten dollars, plus one dollar for each additional day the purchaser is prevented from getting such certificate in the exercise of due diligence, under the law. Here he made demand on December 3, 1936. On December 23, having failed to surrender the certificate, the defendant became liable to plaintiff in the sum of ten dollars. On December 29, defendant notified plaintiff that it did not have the certificate, which showed its inability to surrender it. After the expiration of twenty days, and before receiving notice from the defendant that it could not surrender the certificate, six days elapsed, increasing the penalty by six dollars. During this time the plaintiff did not know whether or not the defendant could surrender the certificate; hence he had no cause to apply to the registrar for a duplicate, although he could under the law have done so. He took no steps until August 31, 1937, to execute the required affidavit so as to procure a duplicate certificate. Eighteen days elapsed after the date of his affidavit before he received the duplicate from the registrar. The question is whether or not that was a reasonable time, in the exercise of due diligence, for the plaintiff to have procured the certificate. If the delay was caused by lack of due diligence on the part of the plaintiff, then such time as was not reasonable should not be computed in assessing the additional penalty. At most, under the record, the penalty could not exceed thirty-four dollars, being ten dollars as the initial penalty, six dollars for the six days elapsing after expiration of the twenty days from demand and before defendant’s notice to plaintiff that it did not have the certificate, and not over eighteen dollars for the eighteen days elapsing from the time the plaintiff made affidavit and application to the registrar for a duplicate certificate.
For the reasons given, the judgment must be reversed and a new trial ordered. We assume that on new trial the evidence will be the same as on the first trial. The only question, therefore, to be submitted to the jury on new trial would be: What was a reasonable time for the plaintiff to secure a duplicate certificate, after he made application therefor? The penalty assessable to be one dollar for each day so found to be within a reasonable time, not to exceed eighteen days in this instance. The sum so found as a penalty must be added to the penalty of sixteen dollars that accrued before the plaintiff made application for a duplicate certificate. If the defendant, within ten days after filing of the remittitur, confess judgment for thirty-four dollars, the order for new trial shall be deemed vacated. The parties shall pay their own costs on appeal.
Rehearing denied April 27, 1940.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Erickson concur.
On Motion for Rehearing.
|
[
1,
32,
-14,
31,
53,
-27,
39,
2,
-8,
48,
26,
8,
-28,
-2,
-9,
7,
32,
-10,
19,
-39,
-57,
-101,
-40,
-34,
63,
3,
-15,
-33,
-29,
59,
2,
-12,
-53,
-25,
43,
12,
-36,
-19,
12,
60,
15,
9,
-12,
44,
-22,
0,
-57,
-53,
28,
-35,
48,
-70,
-4,
1,
51,
4,
23,
-15,
-45,
-15,
-7,
-60,
59,
36,
-32,
-9,
6,
25,
-1,
-13,
-16,
-40,
34,
-9,
-11,
-27,
-19,
25,
-38,
31,
-14,
-27,
89,
-63,
4,
13,
17,
-7,
-40,
-23,
-23,
1,
9,
32,
10,
-24,
1,
-18,
-30,
-16,
5,
-34,
22,
75,
1,
29,
-40,
-39,
2,
13,
-46,
-13,
32,
-28,
8,
-17,
-17,
27,
63,
-22,
36,
-22,
43,
-5,
-10,
25,
-10,
3,
7,
48,
-41,
-29,
22,
19,
-42,
-34,
-1,
-47,
28,
45,
15,
11,
7,
-51,
0,
0,
81,
-36,
-24,
19,
-37,
46,
56,
50,
-16,
-22,
26,
-29,
-5,
-29,
11,
-11,
11,
-9,
39,
12,
10,
18,
-26,
-75,
43,
-10,
-13,
-36,
58,
9,
15,
-18,
19,
-19,
10,
28,
50,
-10,
51,
-17,
-27,
40,
20,
-20,
-11,
3,
40,
51,
-35,
-10,
-41,
-23,
5,
-2,
9,
-4,
14,
7,
-29,
16,
42,
-20,
21,
21,
-34,
-36,
5,
3,
-46,
5,
12,
12,
-17,
-24,
-5,
13,
-73,
10,
7,
-7,
36,
4,
-9,
13,
13,
65,
9,
26,
-19,
-13,
-2,
-32,
-30,
63,
34,
-42,
-10,
-30,
-5,
4,
-27,
-8,
9,
-17,
-18,
-31,
-62,
35,
-20,
14,
33,
-13,
-16,
24,
4,
29,
30,
9,
-21,
-49,
1,
-46,
3,
31,
-8,
0,
-4,
18,
-21,
-47,
22,
-11,
8,
-50,
-5,
-2,
-20,
-4,
16,
35,
-7,
42,
-30,
-63,
10,
-3,
7,
-22,
-34,
-3,
9,
-50,
1,
7,
-10,
-45,
1,
30,
-28,
-62,
-69,
-17,
0,
4,
-58,
-5,
9,
0,
32,
28,
-22,
-15,
35,
40,
59,
63,
-38,
42,
10,
14,
-14,
2,
-11,
-3,
-25,
-47,
-37,
-7,
25,
-71,
43,
-36,
-22,
47,
-1,
6,
14,
11,
14,
33,
14,
27,
-32,
30,
15,
-29,
-48,
7,
-30,
-26,
27,
1,
-20,
28,
28,
-3,
1,
-7,
18,
24,
-20,
8,
-22,
30,
-24,
28,
-4,
-5,
-45,
-48,
-40,
15,
-31,
27,
3,
-30,
-58,
-3,
41,
28,
2,
-42,
-47,
-30,
-22,
20,
-33,
-22,
-4,
-48,
17,
-75,
-46,
-7,
-19,
14,
1,
-21,
-48,
-39,
82,
24,
-56,
-24,
-16,
-45,
-21,
-27,
8,
0,
48,
-16,
-42,
-14,
-6,
-26,
-33,
-26,
42,
-51,
49,
25,
-43,
55,
50,
61,
5,
-5,
17,
-37,
5,
-3,
27,
8,
44,
25,
18,
7,
20,
2,
-9,
-8,
4,
34,
20,
3,
24,
33,
17,
73,
79,
14,
-35,
-30,
19,
-10,
3,
-4,
-1,
-62,
30,
-16,
-8,
36,
-14,
58,
1,
-25,
-16,
32,
-18,
-49,
-35,
16,
-64,
33,
-27,
-15,
-21,
-12,
-45,
-11,
4,
16,
17,
14,
-14,
50,
-34,
-6,
-24,
3,
32,
-16,
-28,
-24,
8,
76,
25,
50,
44,
-17,
-17,
-9,
-3,
39,
10,
-21,
24,
48,
36,
36,
56,
56,
-5,
23,
-32,
-20,
-11,
-37,
12,
-9,
22,
-17,
-29,
6,
-9,
-20,
-42,
43,
21,
45,
-41,
13,
12,
19,
-36,
-13,
-16,
0,
-42,
4,
33,
4,
4,
-15,
26,
-25,
3,
26,
12,
-14,
-57,
30,
21,
55,
43,
-2,
16,
-29,
-12,
9,
-46,
13,
-20,
-14,
-24,
-32,
-2,
-36,
-23,
-61,
-12,
8,
21,
29,
-1,
-41,
-33,
58,
14,
40,
-34,
4,
5,
25,
27,
29,
-17,
47,
-28,
25,
-25,
-2,
37,
27,
-53,
53,
26,
-26,
-24,
26,
-30,
-20,
1,
5,
13,
21,
8,
-31,
47,
-29,
30,
28,
18,
46,
26,
10,
-33,
9,
-50,
-50,
2,
25,
9,
24,
10,
-6,
0,
8,
-3,
54,
-52,
-37,
23,
-10,
22,
20,
-12,
-20,
-3,
-15,
22,
-40,
-37,
9,
4,
-23,
48,
36,
6,
-14,
41,
0,
7,
-64,
-7,
-22,
17,
-2,
14,
23,
-18,
45,
-10,
-52,
-9,
-13,
-12,
53,
0,
54,
27,
21,
25,
-13,
19,
-29,
-61,
-40,
40,
-39,
67,
1,
-15,
56,
17,
6,
-59,
-11,
-8,
76,
-42,
13,
43,
-50,
-32,
23,
-51,
29,
-42,
13,
-2,
-9,
-5,
18,
-11,
-82,
-4,
16,
21,
8,
-71,
-42,
-56,
-58,
-8,
-35,
7,
37,
12,
17,
8,
-10,
62,
35,
-45,
-12,
-61,
15,
13,
-12,
19,
-25,
-35,
2,
48,
15,
31,
-29,
-51,
-28,
-14,
-47,
2,
0,
-3,
72,
9,
2,
5,
-2,
-8,
0,
8,
60,
10,
41,
-11,
19,
-25,
-46,
39,
-46,
17,
-20,
-6,
-14,
3,
-50,
46,
11,
76,
-26,
9,
-12,
11,
42,
-32,
-16,
1,
24,
-13,
62,
34,
-29,
3,
-23,
-36,
10,
21,
12,
-28,
6,
0,
-29,
-11,
11,
57,
-38,
31,
33,
-14,
-25,
-28,
-14,
2,
-46,
50,
-47,
42,
37,
8,
-15,
0,
2,
-42,
-8,
-23,
-23,
2,
-3,
-51,
36,
-15,
-37,
-3,
5,
-32,
-3,
51,
30,
-18,
-38,
-26,
-18,
-16,
19,
34,
18,
19,
19,
40,
-2,
-29,
3,
-17,
-15,
-24,
30,
-44,
-41,
-15,
33,
-35,
-27,
-36,
18,
45,
-48,
10,
17,
-49,
50,
34,
-5,
-7,
41,
-6,
8,
68,
4,
48,
7,
-21,
-43,
15,
22,
-47,
-34,
5,
9,
-39,
-18,
-32,
12,
-36,
-69,
-6,
-37,
22,
-19,
57,
-2,
36,
17,
-25,
-19,
54,
58,
41,
-36,
12,
32,
55,
-32,
3,
-38,
0,
-37,
-5,
-47,
25,
48,
62,
-19,
-47,
-35,
33,
-25,
-25,
-1,
13,
54,
-48,
72,
-2,
50,
50,
13,
-10,
-25,
33,
-26,
-13,
6,
8,
-5,
-38,
-41,
41,
-19,
-31,
7,
22,
27,
42,
42,
16,
7,
-27,
-2,
10,
-39,
12,
49,
11,
-19,
41,
-7,
14,
34,
1,
41,
-13,
68,
-19,
45,
-63,
1,
51,
21,
-25,
27,
-9,
8,
22,
38,
34,
-43,
0,
1,
-35,
-14,
-2,
25,
-14,
33,
20,
13,
56,
4,
9,
-25,
-30,
-73,
-1,
-15,
21,
-54,
15,
-34,
34,
11,
-16,
-16,
-19,
-14,
-11,
31,
16,
4,
3,
23,
-7,
-13,
1,
17
] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an appeal by defendants from a judgment in favor of plaintiff foreclosing a materialman’s lien on property situated in Granite county.
The evidence on some points was conflicting. The findings of the court are amply sustained by the evidence and, in consequence, a fair summary of the facts may be shown by reciting the substance of the court’s findings, which were as follows:
On September 15, 1937, defendant Charles McGee entered into a written contract with defendants Bert and Elmer Person, by the terms of which McGee was to construct a three-room frame house on the Person ranch described by legal subdivisions. Defendant Josephine Person was at that time the holder of the legal title to the property, and defendants Bert and Elmer Person, her sons, were in possession thereof as lessees. The property was conveyed by Josephine Person to Bert and Elmer Person on December 22, 1937.
Plaintiff furnished to McGee materials that went into the construction of the building, of the value of $1,335.76. Josephine Person paid $787.52 toward the purchase price of the materials. Other sums were paid by McGee, leaving a balance of $408.30 unpaid. The work was commenced on September 13, 1937, and completed December 13. The materials were furnished between September 10 and November 18. The lien was perfected on February 14, 1938. While the court did not expressly so find, the evidence shows without conflict that Josephine Person knew that the building was being constructed on the property and consented that it be done.
The written contract between McGee and Bert and Elmer Person contained a clause to the effect that McGee would “turn the said frame dwelling over to the party of the first part free of all incumbrances or obligations incurred in the construction of the same. ’ ’ It was conceded that plaintiff, through its president, drafted the contract between McGee and Bert and Elmer Person and, hence, had knowledge of the above clause in the contract. While the evidence offered by plaintiff was to the effect that it never knew whether the proposed draft of the contract was actually signed and delivered, we shall treat the ease as if plaintiff knew of the clause in the principal contract.
Defendant McGee confessed judgment in his answer in the sum of $338.30. The court found, however, that the amount due is the sum of $408.30. McGee did not appeal from the judgment.
Defendants’ first contention is that before there can be a lien upon the property in question, the materialman must have made a contract with the owner of the property. They rely upon the case of Dewey Lumber Co. v. McQuirk, 96 Mont. 294, 30 Pac. (2d) 475, 476. In that case Mrs. Whitesel was the owner of the property which Mrs. McQuirk was buying under contract. The materialman furnished material to the McQuirks for repairing and remodeling the house, knowing that Mrs. Whitesel was the owner. The court said:
‘ ‘ There was not any contract, express or implied, between the defendant Whitesel and either of the lien claimants, nor was there an attempt to plead a contract between them or either of them; there was not any consent, implied or otherwise, by Mrs. Whitesel to the purchase of the materials or the making of the improvements by the McQuirks. ® * * To render the owner of his property liable for a materialman’s lien, the lien must rest upon a contract debt made either directly or indirectly with the owner of the property [citing eases], unless the owner chooses to ratify what- has been done or in some manner estops himself to question the lien.”
Here there was direct consent of all defendants that the improvements be made. Defendants Bert and Elmer Person con tracted directly with McGee to have the work done. It is not necessary that the contract be made between the owner and the materialman or person furnishing labor. If that were so, our Mechanic’s Lien Law would be of little value to those performing labor or furnishing materials. The McQuirk Case does not imply that there must be a direct contract between the owner and the laborers and materialmen. All that it implies is that the owner must consent in advance to the improvement either expressly or impliedly, or subsequently ratify what has been done.
The correct rule is stated in 40 C. J". 139, as follows: ‘ ‘ The right to a mechanic’s lien is not confined to persons contracting directly with the owner of the property, or performing labor or furnishing material with the actual knowledge of the owner, but extends to persons who do work and furnish materials under contract with, or employment by, the contractor. It is sufficient if there is a contract between the owner and some one for the improvement of the property; claimant is a laborer, materialman, or subcontractor under contract with, or employment by, the contractor; and he does work or furnishes material for the contractor in pursuance of the latter’s agreement with the owner. However, to be entitled to a lien, a claimant must connect himself with the owner in some way, directly or indirectly, by some link of a contractual nature; as in all cases, the owner must have contracted with some one for the improvement of the property or at least must have authorized, requested, knowingly permitted or consented to such improvement.”
The record before us is replete with evidence that all defendants consented to, and in fact were instigators in procuring the improvements to be made. The lessees, after making the written contract with McGee, actually dealt with plaintiff in arranging for the furnishing of the materials. Defendant Josephine Person gave her consent thereto and, in fact, subsequently ratified what was done by making a substantial payment for the materials.
The only other point relied upon by defendants, is that because of the above-quoted clause in the contract between McGee and Bert and Elmer Person, of which plaintiff had knowl edge, there was a waiver by plaintiff of the right to a lien. There are eases sustaining this view. The courts are not in harmony on the subject. Cases supporting each of the divergent views are cited in 40 C. J. 148, and in 18 R. C. L. 976, and reviewed in the exhaustive note in 13 -A. L. R. 1065.
This court had the question before it in the case of Miles v. Coutts, 20 Mont. 47, 49 Pac. 393, 395. This court conceded that a majority of the decisions “hold that a clearly expressed covenant in a contract between the contractor and the owner, that no liens shall be allowed against the building, will bind the contractor and all other persons performing labor or furnishing materials in the construction of a building, still that doctrine cannot be claimed to be the settled rule of law on the subject.” It referred to decisions holding otherwise, and then concluded by saying: “We think the conclusion reached by the court in the case just quoted [Norton v. Clark, 85 Me. 357, 27 Atl. 252], that the stipulation under discussion, ‘like all other stipulations, binds only those who made it or assented to it,’ is the only just and legal conclusion of which the ease is susceptible. We are not prepared to hold, notwithstanding the majority of the decisions be that way, that rights conferred upon a person by statute may be contracted away by a contract made by others, to which he has never assented, and of which he has no knowledge. We think such a construction of our statute in relation to mechanics’ liens is unauthorized, and would result in defeating the end had in view by its enactment, by practically depriving the persons sought to be benefited of all protection under its provisions. ’ ’
The language “and of which he has no knowledge” in the Miles Case appears not to have been necessary to the result reached. The court was following the case of Norton v. Clark, supra, which directly declared that ‘ ‘ This particular stipulation, like all other stipulations, binds only those who made it or assented to it. The plaintiff did neither. ’ ’ While it is true that in the case of Norton v. Clark, supra, it was recited that plaintiff had “no knowledge of the stipulation,” that fact had no bearing upon the conclusion, except as it made conclusive the statement that assent was never given to be bound by it. That the words “of which he has no knowledge” were not considered of importance in the Miles Case is made apparent from the statement by the court of the question before it. That question was stated as follows: “Can the contractor and owner of the building, by contract, deprive all other persons who labor and furnish materials in the construction of a building of their right to claim a lien thereon without their assent?” Again on page 51 of 20 Mont., 49 Pac., at page 394, of the opinion the court, after commenting upon one point not important here, stated the question again, as follows: “We are still confronted with the graver question as to the power of the contractor and the owner of the building, by contract between themselves alone, to deprive all other persons who labor or furnish materials in the construction of the building of their right to claim and enforce a lien thereon without their assent?”
We conclude, therefore, that knowledge by plaintiff of the terms of the principal contract between the owner and the contractor was immaterial, except as such knowledge, along with other circumstances, might indicate that plaintiff assented to be bound thereby. There is nothing in the record to indicate that plaintiff in any way assented to be bound by that stipulation.
In Gimbert v. Heinsath, Madden, 5 Ohio C. D. 176, the court in speaking of such a stipulation, said: “The statute seems to give importance to the contract only as giving consent of the owner that the improvement be made on his land. The statute gives to laborers and material-men a direct lien, not through any rights the contractor may have, but direct upon the consent of the owner to the improvement on his land, and the performing of labor or the furnishing of materials. This right is by virtue of the statute, and the statute puts this right into “ * * every consent he gives for the erection of a structure for him on his land. If then, the law makes these rights a part of the contract, as much as though written therein, what right have the owner and the contractor to strike them out and write the very opposite in without the assent of the laborer and material-man? This cannot be done without their assent. This being a posi tive statutory right, it cannot be taken from those who were intended to be benefited by it without their assent being clearly shown. To take from them this right by implication would be construing a remedial statute intended'for their benefit most strongly against them. This cannot be done without violating an elementary rule of construction.”
We think this is the correct rule, although we recognize that some courts have looked upon notice and knowledge on the part of the materialman as important. The case of Hume v. Seattle Dock Co., 68 Or. 477, 137 Pac. 752, 50 L. R. A. (n. s.) 153, used a clause much like the one in the Miles Case. There are eases, however, which indicate that notice or knowledge of such a stipulation is of no importance, so long as there was no assent to be bound thereby. Some cases so indicating are commented upon in 13 A. L. R. 1077.
Finding no merit in either of defendants’ contentions, the judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Arnold and Erickson concur.
|
[
16,
49,
-29,
-22,
-19,
-51,
36,
-3,
7,
1,
31,
-7,
-2,
-14,
-6,
-19,
2,
-5,
34,
17,
4,
-23,
-30,
-14,
-2,
19,
6,
-55,
-20,
34,
6,
-9,
-42,
18,
-11,
22,
20,
-4,
53,
-40,
15,
12,
-48,
-11,
-31,
0,
9,
-42,
37,
-4,
-5,
-33,
67,
4,
3,
-35,
11,
49,
-62,
40,
33,
-56,
5,
19,
15,
-16,
55,
-11,
25,
-21,
-4,
-15,
27,
-43,
-39,
-35,
21,
11,
-51,
-60,
-33,
5,
38,
-14,
2,
-5,
-28,
-44,
-22,
33,
-41,
37,
63,
69,
13,
16,
24,
18,
15,
46,
16,
-15,
-36,
67,
15,
9,
-111,
2,
13,
33,
-41,
-19,
-1,
53,
-79,
19,
12,
40,
-10,
-48,
10,
7,
-19,
-66,
-20,
15,
-13,
4,
-2,
-16,
-12,
25,
28,
2,
-53,
-13,
33,
-35,
-21,
-13,
43,
0,
-14,
-45,
-10,
-4,
13,
-36,
8,
-14,
-25,
-9,
30,
41,
52,
-85,
-25,
-1,
-11,
-25,
36,
2,
20,
-22,
-4,
-3,
-13,
-36,
26,
-20,
-4,
-27,
-1,
-17,
35,
35,
9,
-28,
-53,
-52,
-2,
-5,
-14,
-26,
-25,
22,
23,
19,
10,
4,
4,
-30,
-12,
9,
-17,
25,
-46,
-14,
14,
2,
-21,
15,
15,
-33,
-3,
-24,
-8,
54,
49,
-9,
6,
-36,
-48,
28,
4,
2,
-5,
18,
10,
6,
-30,
5,
-45,
-60,
-7,
0,
31,
29,
34,
-5,
-39,
45,
10,
5,
-7,
11,
16,
-3,
-66,
-12,
-1,
-21,
-31,
5,
-28,
29,
-30,
-3,
-38,
6,
-37,
-10,
6,
43,
-4,
39,
4,
45,
-25,
-26,
32,
7,
1,
35,
38,
-12,
-21,
-29,
-35,
50,
-27,
0,
33,
48,
-50,
35,
-12,
-14,
-9,
-29,
18,
-22,
0,
4,
30,
11,
34,
81,
-21,
-34,
11,
-44,
-2,
-3,
52,
-1,
-9,
-41,
4,
20,
-23,
-30,
-13,
-23,
-2,
3,
-23,
25,
-11,
32,
21,
23,
-15,
-40,
18,
46,
-51,
-31,
10,
36,
37,
24,
-25,
0,
80,
26,
-20,
-21,
-80,
31,
24,
22,
-22,
23,
-25,
24,
-31,
10,
52,
-27,
-17,
16,
-8,
4,
33,
30,
-17,
0,
-18,
10,
3,
39,
-60,
34,
-39,
11,
-20,
-2,
1,
11,
9,
32,
28,
-14,
-58,
-23,
-40,
-41,
-32,
0,
19,
48,
-2,
5,
15,
4,
-4,
-13,
1,
14,
-8,
30,
22,
-7,
61,
24,
52,
-49,
3,
-16,
-80,
-42,
-3,
48,
30,
-51,
43,
-16,
-18,
-116,
-59,
-11,
-10,
-35,
-48,
27,
-21,
-18,
-35,
7,
28,
-48,
-45,
10,
29,
-14,
-17,
10,
6,
24,
-11,
18,
43,
-15,
17,
-10,
34,
-27,
-44,
50,
-36,
22,
-24,
-41,
7,
-22,
3,
6,
-35,
51,
2,
55,
-40,
-16,
32,
5,
12,
-5,
16,
22,
-25,
58,
-4,
49,
-14,
2,
41,
-44,
21,
-8,
60,
9,
38,
7,
-29,
-9,
9,
-24,
-67,
11,
5,
38,
48,
-88,
43,
76,
11,
33,
5,
1,
-16,
-62,
14,
34,
-34,
61,
-69,
-6,
-23,
3,
34,
-27,
-14,
-4,
-57,
-43,
20,
-32,
18,
27,
-36,
34,
16,
-28,
19,
1,
47,
-15,
18,
26,
-26,
-37,
22,
4,
37,
5,
22,
22,
-20,
26,
1,
-35,
-9,
-25,
21,
60,
-19,
50,
15,
-14,
-45,
7,
-6,
19,
-24,
25,
41,
17,
33,
-29,
-14,
-17,
33,
72,
-27,
9,
-36,
-26,
32,
36,
8,
-28,
-26,
53,
7,
3,
-24,
-12,
-8,
-6,
-18,
25,
-6,
-5,
36,
-15,
-66,
-4,
10,
0,
-30,
-2,
-11,
-3,
-31,
-54,
-65,
-11,
4,
-1,
-30,
-15,
-36,
-1,
2,
29,
1,
42,
-33,
23,
-5,
-2,
-20,
-5,
-56,
5,
-63,
-14,
-32,
3,
-31,
-3,
-36,
-1,
-31,
-46,
-12,
0,
23,
20,
-5,
48,
-2,
35,
11,
-10,
17,
-31,
-2,
-12,
87,
-2,
-21,
-4,
-10,
15,
-16,
23,
-50,
51,
-32,
-9,
-4,
13,
4,
-10,
45,
-8,
-23,
-38,
11,
51,
-20,
29,
3,
-13,
30,
-50,
9,
-19,
-16,
25,
11,
-20,
22,
-18,
74,
-55,
-14,
-28,
91,
-22,
-20,
-15,
4,
-66,
59,
1,
17,
-2,
-5,
3,
11,
9,
-8,
51,
-15,
38,
70,
-43,
54,
-23,
13,
8,
10,
-60,
46,
-33,
-30,
43,
-2,
40,
26,
14,
-29,
33,
21,
-5,
-8,
3,
39,
-47,
54,
26,
-31,
67,
23,
-39,
-7,
30,
13,
26,
-53,
21,
-30,
44,
51,
-30,
-48,
-18,
12,
-33,
-22,
-44,
49,
-19,
42,
18,
0,
17,
53,
47,
-41,
24,
38,
-7,
32,
-14,
12,
12,
12,
-13,
-1,
3,
-13,
18,
54,
-20,
-25,
-4,
16,
2,
-6,
28,
8,
-24,
-11,
21,
-7,
15,
29,
6,
-40,
18,
21,
-17,
-23,
-28,
-42,
-53,
-15,
34,
23,
4,
17,
-10,
23,
60,
69,
-15,
-30,
48,
1,
16,
16,
-58,
51,
35,
29,
57,
-54,
25,
0,
-2,
-42,
-23,
23,
20,
-48,
20,
10,
35,
32,
11,
23,
-20,
-38,
73,
61,
43,
-53,
-15,
-6,
-60,
-29,
11,
3,
12,
4,
18,
-8,
4,
-5,
-12,
34,
-18,
-5,
9,
-10,
4,
31,
-37,
-36,
28,
44,
-9,
-19,
60,
2,
-63,
43,
-58,
-15,
-14,
-11,
-28,
-28,
-28,
-50,
31,
0,
-51,
59,
26,
-55,
-41,
-13,
31,
23,
22,
48,
12,
7,
21,
25,
-28,
-10,
-5,
-1,
-6,
34,
0,
-8,
-13,
36,
24,
8,
-38,
54,
-27,
-14,
36,
-18,
20,
-36,
-20,
36,
45,
3,
62,
-15,
-7,
-16,
14,
-10,
-10,
8,
-87,
-21,
-25,
-35,
1,
1,
87,
53,
-24,
26,
45,
28,
21,
15,
-10,
-28,
-45,
1,
44,
-24,
-85,
15,
24,
7,
-9,
-45,
-36,
40,
12,
-9,
40,
-10,
44,
-25,
12,
-5,
21,
-24,
-25,
9,
-18,
-36,
-21,
-19,
-14,
-6,
61,
-5,
-8,
54,
-55,
-9,
-13,
37,
44,
-16,
58,
39,
9,
-35,
-49,
9,
-28,
-20,
-2,
32,
-53,
63,
9,
-4,
33,
37,
-77,
-8,
-20,
18,
-39,
-5,
-8,
63,
-3,
30,
-30,
35,
-25,
-28,
43,
21,
-50,
22,
-61,
-47,
-25,
24,
-49,
8,
5,
33,
-9,
0,
0,
4,
21,
-2,
13,
7,
-3,
-4,
-52,
3,
39,
3,
-53,
-15,
-40,
32,
-58,
18,
18,
-26,
9,
2,
30,
2,
-45,
-50,
43
] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
In 1913 a final decree was entered adjudicating the water rights of Three Mile Creek in Powell county. This appeal is from an order made after final judgment; — an order giving instructions to a water commissioner appointed by the court.
The parties now involved, or their predecessors, were all parties to the 1913 adjudication, with the exception of the water commissioner, who, as will appear obvious, is a necessary party. While there are several appellants, we shall refer to them as appellants “Quigley” or “Kimmerly,” as the case may be, since they are the principal ones involved. McIntosh and Gravely are the respondents. They hold water rights which are nearly all junior to those of appellants. The Quigleys are located at the head of the creek, and the Kimmerlys at the foot thereof. The lands of the respondents and all of the other users lie between those two.
This proceeding was instituted in 1937 under the provisions of Chapter 82, Revised Codes (sees. 7136-7159). Section 7150 provides, in substance, that any person entitled to use and using water rights from an adjudicated stream under a “decree or decrees,” who is dissatisfied with the method of distribution of the water thereof by a water commissioner, and who claims to be entitled to more water than he is receiving, or is entitled to a right prior to that allowed by him by the water commissioner, may file a written complaint setting forth the facts of such claim.
Procedure for the trial of such complaints is outlined and provision is made for examination of parties and witnesses in support of or against the complaint. “Upon the determination of the hearing, the judge shall make such findings and order as he may deem just and proper in the premises. If it shall appear to the judge that the water commissioner or water commissioners have not properly distributed the water according to the provisions of the decree, then the judge shall give the proper instructions for such distribution.”
The record of the hearing is quite voluminous and approximately 650 pages of testimony were taken. After an extended study the trial judge made extensive findings of fact and conclusions of law, rendered thirteen orders with respect to the distribution and use of the waters and ditches, and in con formity with all of the foregoing rendered sixteen instructions for the water commissioner’s guidance in the performance of his statutory duties.
It is the contention of appellants, as described by some fifty-seven specifications of error, that the orders made and the instructions given were beyond the scope and purport of the remedy provided by the above sections, particularly 7150. Their theory is that the water commissioner law never contemplated the distribution and supervision of water and water rights in the manner attempted by the judge. They assert that to uphold the orders and instructions given will, in effect, approve and confirm substantial modifications of the original decree, and will sanction the adjudication of substantive property rights, such as restricting the use of the water to a particular watershed or to certain parcels of land, in a manner not provided in the original decree. They assert that it was never intended by the legislature that such rights should be adjudicated and determined informally under a statute which infers that a written complaint shall constitute the only pleading necessary to invoke the remedy and secure the relief therein provided, which was the procedure pursued in the case at bar.
Respondents, on the other hand, contend that the proceedings did no more than determine that the water commissioner had not been distributing the water to the respective users in accordance with the adjudication, and that the orders and instructions given simply construed and clarified the provisions of the decree, and made certain the duties of the water commissioner in those respects.
It has previously been held by this court that under sections 7150 et seq., the whole question for determination in such a proceeding is whether the water commissioner has been distributing the water to the respective users in accordance with the decree or decrees. (Gans & Klein Inv. Co. v. Sanford et al., 91 Mont. 512, 2 Pac. (2d) 808.) This logically tenders for consideration the question whether the judge properly instructed the water commissioner. The duties and authority of a water commissioner are prescribed by statute. He only has authority to distribute the water to the parties ‘ according to their rights as fixed by such decree or decrees.” (Sec. 7136.) The law does not give him complete and exclusive jurisdiction to control the stream as such (State ex rel. Reeder v. District Court, 100 Mont. 376, 47 Pac. (2d) 653); nor is it simply his duty to distribute certain quantities of water to the parties without reference to the purposes, uses and needs adjudicated in the decree.
It then becomes obvious that the decree must be the yardstick by which the commissioner shall proceed, and, of necessity, must likewise constitute the yardstick for the consideration of instructions given to him by the court. It is, therefore, necessary to look to the controlling provisions of the decree for the authority of both court and commissioner. Whether the face of the decree itself is necessarily the sole authority regardless of its form, is one of the questions to be decided here.
In this instance, generally speaking, the total of the decreed rights exceeds by far the natural flow of the stream in normal periods, and certainly at times of low water. As usual in such matters, the decreed amounts were much less than those claimed by the parties to the action, and much less than would have been necessary to irrigate all their land.
With respect to the claims of Quigley, there was decreed to him and his predecessors an aggregate of 736 inches of water as of different dates of priority. The court specifically found that the lands irrigated by Quigley through the Gallagher” ditch, 100 inches, and the “Hanley” ditch, 70 inches, were situated in the basin of Three Mile Creek in close proximity to and along both sides thereof, and the award was clearly made for that express purpose. Quigley also was awarded rights of 100 inches as of May 29, 1902, and 200 inches as of May 16, 1907. Permission was specifically given him to make beneficial use of the last-mentioned amounts in the Six Mile Creek basin and watershed, the same being outside and beyond the Three Mile Creek watershed. This use, however, was expressly stated to be subject to all other decreed rights as such appropriations and rights were fixed and mentioned in the court’s findings of fact and conclusions of law. Although 200 inches of these two rights appear to be junior in time to all other decreed rights on the stream, the other 100-ineh right is senior in time to several others as fixed by the court. The remaining 266 inches of the Quigley rights were decreed without' express restriction as to place of use, but they were necessarily awarded on the basis of the proof of beneficial use made thereof at the time of the decree and the facilities for conveying the water to the place of use.
The rights of the other users on the stream, including the Kimmerlys, were decreed to them in the same mariner as the 266 inches to the Quigleys — some of whom also irrigated outside of the Three Mile watershed, viz: “ for the purpose of irrigating the lands belonging to them and described in their [pleadings] and for domestic and other useful purposes, appropriated and diverted from said Three Mile Creek by means of ditches of sufficient capacity to carry the same certain of the waters of said Three Mile Creek of the following number of inches,” etc.
Thus it will be observed that the same general language was used with reference to the Quigley 266-inch rights that was employed as to the other rights. The qualifying language as to certain of Quigley’s rights above noted came in in another part of the decree and cannot fairly be said to have any special restrictive effect on the 266 inches of these particular Quigley rights. It is thus apparent that the court in its findings and conclusions did not specify particularly the acreage upon which the waters should be used other than upon the ranches described in the pleadings. An examination of the property plats of the parties introduced at the original trial and in this proceeding, in conjunction with the testimony taken at the more recent hearing, obviously shows that in some instances, at least, large areas of land were described in the pleadings far in excess of what the final awards could have irrigated, even assuming that the actual or contemplated use had been proven as to the entire holdings pleaded. With this explanation in mind, we proceed to consider the orders made and instructions given by the court to the water commissioner.
It is significant that, as a preface to the orders and instructions, the judge declared that “the decree governsConsequently, his first order was “that all waters of Three Mile Creek shall be admeasured and distributed to the various water users in accordance with their respective rights, as such rights are fixed and determined by the decree of this court dated June 10, 1913.” The next eight orders, 2 to 9, inclusive, pertain to headgate and weir requirements imposed upon the various users, to reservoir measuring devices of the Quigleys, and to penalties to be imposed for failure of users to comply with the orders. These orders may be affirmed as written. "We do not deem it necessary to set them out in full, as they are merely of a routine and administrative nature.
Order No. 10 reads as follows: “The defendants Quigley shall not by means of the Hanley Ditch or the Gallagher Ditch, or otherwise, convey or run any of the waters of Three Mile Creek into that certain reservoir, which has no outlet, called by them the ‘fish pond,’ and recently constructed by them, located on their lands easterly from Three Mile Creek, and should the defendants Quigley, contrary to these orders, convey any of the waters of Three Mile Creek through the Hanley Ditch or the Gallagher Ditch, or any ditch or .ditches leading therefrom to said fish pond for the purpose of storing same therein, the water commissioner shall immediately shut down the head-gates in each and all of said ditches so conveying such waters and keep such headgates closed down until further order of this court. ’ ’
Appellants contend that this order is arbitrary and erroneous for the reason that it is not shown that the fish pond was ever used to the prejudice of other users. However, they admit that at no time involved in the controversy have waters been available for Quigley’s water rights of 1902 and 1907, and it necessarily follows that the same must be true as to respondent Gravely’s appropriations of 1903 and 1904, and respondent McIntosh’s appropriation of 1904. A similar admission is made by appellants’ failure to predicate error upon the court’s finding of fact No. XII that at no time since the appointment of the water commissioner had there been more than enough water to supply the needs of the parties under their decreed rights.
It is clear that the recent diversion of water into the “fish pond” constitutes a new attempted appropriation. As such it is governed by sections 7119 to 7127, inclusive, of the Revised Codes, enacted as Chapter 228 of the Session Laws of 1921, as a new appropriation from an adjudicated stream. Since the record does not disclose a decree establishing such an appropriation, there is nothing to warrant a diversion for that purpose, even if water had been shown to be available therefor, which is admittedly not the case here. The court cannot, therefore, be put in error for forbidding the distribution of water to appellant Quigley for that purpose.
Orders 11, 12 and 13 were with respect to the exchange of water from other creeks, Kimmerly headgates and weirs, and time for the installation of all headgates and weirs. These orders were proper.
We now come to a consideration of the sixteen instructions given by the court to the water commissioner. The substance of many of them is naturally but an expression of the contents of the orders just discussed. They are differentiated, of course, in that they provide the rules and instructions for the guidance of the water commissioner in his day-to-day administration of the rights on the creek. We find no fault with the instructions numbered 1, 2, 3, 4, 7, 8, 9, 10 and 16, and the finding of fact made in 12, and therefore sustain them as written. Appellants admit that instruction No. 5 is correct in allowing the use of Quigley’s 1902 and 1907 appropriations totalling 300 inches outside of the Three Mile watershed only when all other decreed rights within the watershed were being supplied.
Instructions 6, 11, 12, 13, 14 and 15 may be considered together. They involve a matter that has been a constant cause of friction between water users since the beginning of irrigation in this western area, i. e., the change of the place and manner of use. As the question comes to us in this proceeding, the issue is complicated by the additional question of the right of a water user to increase the burden of use upon a given number of decreed inches; or, in other words, to increase the number of acres that may be irrigated by the right, which in turn must of necessity increase the length of time that the number of inches of water may flow and therefore the total volume of water used during the irrigating season.
It seems clear that in the 1913 decree, as in most water right decrees, only two factors were taken into consideration: (1) The amount of land under actual or contemplated irrigation, and (2) the flowage of water required, which in the case of Kimmerly was fixed at 275 inches. The time factor, that is the length of time it would actually take during the season to irrigate the land with the allotted inches, and therefore the total amount of water to be used, was not included. It is readily apparent that 275 inches of water must necessarily mean one thing when 250 acres are irrigated, and quite another thing when 363 acres are irrigated.
The judge in this proceeding found as a fact that at the time of the decree the Quigley irrigating operations extended only to certain described lands within the watershed of Three Mile Creek, with the exception of the 300-inch appropriations of 1902 and 1907, heretofore discussed. He also found as a fact that the Kimmerlys and their predecessors were only irrigating certain described bottom lands at the time of the decree. The record supports these findings. Subsequent to the original decree, however, the Quigleys enlarged a ditch called No. 5 and began using any and all of their rights to Three Mile waters through that ditch and upon lands in the Six Mile watershed. This they did in the order of their priority of decreed rights, and also continued the irrigation of the lands originally irrigated in the Three .Mile watershed at the time of the decree.
The Kimmerlys, who were given an aggregate of 275 inches of water in the original decree, also made a new ditch running to lands other than those then under irrigation, but likewise continued to irrigate most of the lands that were then under irrigation. In each instance the use of water through the new, enlarged and different ditches, was confined to the irrigation of ranch land described in the original pleadings, and the use was likewise confined to a given number of inches. There were charges of misuse and unlawful taking of water which were established to the satisfaction of the court, and upon which findings and orders were properly based; however, these latter incidents need not confuse the main issues.
It seems indisputable that a water user who has been decreed the right to use a certain number of inches of water upon lands for which a beneficial use has been proven, cannot subsequently extend the use of that water to additional lands not under actual or contemplated irrigation at the time the right was decreed, to the injury of subsequent appropriators. Obviously, if he could do so, junior appropriations might be of little or no benefit and the following three well-established principles of water rights by appropriation would be nullified: First, that place of diversion, or place or purpose of use, may be changed only “if others are not thereby injured” (sec. 7095, Rev. Codes) ; second, that subsequent appropriators of water take with notice of the conditions existing at the time they make their appropriations (State ex rel. Crowley v. District Court, 108 Mont. 89, 88 Pac. (2d) 23, 121 A. L. R. 1031); third, that “as between appropriators the one first in time is first in right” (sec. 7098) ; for by what constitutes an additional or third use or appropriation by the first user, an intervening appropriation by a second user, although earlier in time, might be entirely destroyed. Of course, water must be appropriated and decreed under our system for some useful and beneficial purpose. (Sec. 7094, Rev. Codes.) The proof of the existence of such purpose and the use applied to the same, as shown in the original cause, of necessity formed the basis for the awards finally given in the 1913 decree. The awards naturally had to take into consideration the capacity of ditches, as well as needs (Peck v. Simon, 101 Mont. 12, 52 Pac. (2d) 164), and prospective or future needs only if intention in that regard was manifested. (Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575.) Since no such issue was shown in this case, the decree could not have contemplated such increase and made no attempt to do so. The mere fact that all the lands to which the additional use of water has been applied were included within the description in the pleadings at the time of the decree, in no manner furnishes basis for, or justifies, the extended use in the absence of recitals in the pleadings and decree and proof in the record that the appropriations were made in anticipation of future needs, and a showing in this proceeding that there has been reasonable diligence since the decree in developing such needs.
As noted above, the statute gives a water user the right to change his point of diversion or place or manner of use only if in so doing he does not thereby injure others. (Sec. 7095, Rev. Codes; Whitcomb v. Murphy, 94 Mont. 562, 23 Pac. (2d) 980, and eases therein cited.) Such changes have been made here with respect to the Kimmerly rights and partially, at least, as to the Quigley rights. They have changed their points of diversion, and they are now apparently irrigating in new places or on new areas, parts of which are in a different watershed, and at the same time they are continuing to irrigate all or substantially all of the lands under irrigation at the time of the decree. The voluminous record and the findings made thereon in this proceeding amply support those facts and the conclusions of law are reasonable and correct; in other words, it seems quite beyond denial that since the date of the decree both the Quigleys and the Kimmerlys have largely increased their actual use of water.
There is no question that these changes have seriously injured respondents’ rights, and that the enlarged use of water is in direct contravention of the principles laid down by the statutes and by all of the well-reasoned decisions which we have been able to find, notably the following: Spokane Ranch & Water Co. v. Beatty, 37 Mont. 342, 96 Pac. 727; Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396; Galiger v. McNulty, 80 Mont. 339, 260 Pac. 401; Brennan v. Jones, 101 Mont. 550, 55 Pac. (2d) 697; Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959; sec. 7095, Rev. Codes; 2 Kinney on Irrigation and Water Rights, secs. 784, 877, 878; Fort Lyon Canal Co. v. Chew, 33 Colo. 392, 81 Pac. 37; Becker v. Marble Creek Irr. Co., 15 Utah, 225, 49 Pac. 892, 1119; Handy Ditch Co. v. Louden Irr. Canal Co., 27 Colo. 515, 62 Pac. 847; Hague v. Nephi Irr. Co., 16 Utah, 421, 52 Pac. 765, 67 Am. St. Rep. 634, 41 L. R. A. 311.
Here the trial court found that there was such additional use by appellants Quigley and Kimmerly and that it resulted to the injury of respondents McIntosh and .Gravely; and the findings are sustained by the record. But the appellants contend that for two reasons the court’s orders to the water commissioner were erroneous: First, because not all the facts relative to the particular acres upon which the water was used at the time of the decree, or relative to the actual time of flow or volume of water to be used, were specified in the decree, and that the adjudicated owners were therefore entitled to use it anywhere and to any extent within their ranches therein described, no matter how much they increased its actual use, so long as they used only the flowage per unit of time decreed to them; second, because this is a mere proceeding for the instruction of the water commissioner as to his duties under the decree, and not one to adjudicate appellants’ asserted rights under the decree. We shall discuss these points in reverse order.
In the first place, as stated above, it seems clear that the only reason for the appointment of a water commissioner is to distribute to the parties “the waters to which they are entitled, according to their rights as fixed by such decree” (sec. 7136), and that the sole purpose of this proceeding is to determine whether the commissioner is properly discharging that duty (sec. 7150). Obviously, those purposes cannot be accomplished without determining what the parties’ rights are under the decree in the light of the circumstances; and that is why notice must be given to all the interested parties.
Admittedly there have been changes in the conditions since the entry of the decree; if not, the question of the parties’ rights under it would not now be before us. Appellants contend that by reason of these changes, which they themselves have initiated, their rights cannot now be determined in this kind of proceeding under the original decree, but only under a new action resulting in a new decree. If so, any party by his own acts, like those of the appellants in the present instance, can oust the old decree and force the persons adversely affected to institute a new action and seek a new adjudication. We have been able to find no authority for such contention, and can imagine none under our system of judicature and the principles relevant thereto.
If, on the other hand, the appellants should now contend that by reason of adverse user, prescription, abandonment or other change the old decree no longer governs, the burden would seem to be upon them to seek a new adjudication of their rights. In the absence of such new adjudication the decree must govern, and the statutory procedure in aid thereof under section 7150 is the most practical and effective means yet devised by legislatures or courts of giving it full effect.
The question is not what new rights the appellants have gained or what old rights the respondents have lost since the adjudication ; if it were, the appellants must by proper action seek a new adjudication. The question rather is of the appellants’ rights under the prior adjudication; — whether under it, without claiming new or additional rights, they are entitled to receive all the water which the commissioner has been giving them.
This brings us to appellants’ first objection. Little question of the propriety of this proceeding or of the trial court’s findings, conclusions, orders and instructions therein, would have arisen had the 1913 decree been more fully detailed. But as noted above it resembled most water right decrees in that in certain respects it did not completely describe the water rights adjudicated. In that respect it is entirely in accord with Chapter 81 of the Civil Code and especially sections 7107, 7108, 7109 and 7132, which provide for the appropriation and adjudication of water rights in terms of flow per unit of time, but without any expressed or suggested intention to destroy the basic principle of water rights that the appropriator’s use of that flow is limited to the beneficial application made thereof, which necessarily also includes the element of time during which the flow is used, and therefore the element of total volume.
It must be apparent that although large areas of land were described by the parties, and large appropriations of water claimed, the trial court necessarily, under our laws relative to water rights, based its 1913 decree upon the evidence as to the land actually irrigated and the water beneficially applied thereto, although in the decree the irrigated land was not specifically described, and the water right was expressed in terms of flow per unit of time, without stating during how many such units of time it could be taken or otherwise defining the total volume of water to be used. Appellants’ contention in effect is that because the court followed the almost uniform practice in these respects all such limits were removed, so long as they used only the decreed head of water within the limits of the ranches described, without regard to the showing of beneficial use prior to date of decree. Water rights are based upon beneficial use, and it is seldom, if ever, that an agricultural water right, adjudicated or otherwise, is used absolutely without any interruption throughout the irrigating season; therefore, the fact that no limitations in hours or days were expressly imposed on any of the water rights by the 1913 decree cannot logically be taken as an adjudication that the appropriations were of such absolutely uninterrupted flow.
At the original trial of the water right suit, it was necessary to show the court at least approximately the exact land irrigated, so as to enable it to determine the water needed, and beneficially applied; strictly speaking, it could have been described exactly in the decree as the basis for testing the limits of the appropriator’s rights in controversies such as this. Or, to be still more specific, the number of hours or days of flowage could have been stated. (Weil on Water Rights in the Western States, 3d ed., 704; Burr v. Maclay B. Co., 154 Cal. 428, 98 Pac. 260; Rough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728.) But in any event, the court’s failure to include either of those two elements could not serve to expand the early water rights beyond the beneficial uses claimed and proved, or to remove the well-established limitation of the appropriator’s right to waters actually taken and beneficially applied. So to hold would be to revolutionize the water right laws in practically every instance where rights have been decreed in the usual manner. As stated ab&ve, while 275 inches of water may be necessary for irrigation upon certain premises, such appropriation means one thing when 250 acres are irrigated, and quite another thing when 363 acres are irrigated; and one using a certain number of inches but an insignificant amount of water to irrigate a garden patch cannot as against intervening appropriators expand his use of it to irrigate a complete ranch. (1 Weil on Water Rights in the Western States, 3d ed., 508; San Luis etc. Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075; Head v. Hale, 38 Mont. 302, 100 Pac. 222.) The mere fact that the decree awarding a water right in miners’ inches or other flow measurement fails to describe the acreage actually irrigated or the time of flow or the volume of water actually used, cannot serve to remove all limitations upon its use in point of time or volume, and thus substantially to expand the early appropriations, to the detriment of subsequent appropriators. If a decree had that effect, there would be few adjudicated streams in the state in which any but the first few appropriations would be of any substantial value.
Such an expansion of the litigated rights would also nullify the well-established principle that a decree can only determine rights in accordance with the issues as framed in the proceeding (Mannix & Wilson v. Thrasher, 95 Mont. 267, 26 Pac. (2d) 373), which may perhaps have been altered by stipulation or evidence from those framed by the formal pleadings (Wallace v. Goldberg, 72 Mont. 234, 231 Pac. 56), and the equally well-established principle that a decree must be given a construction to harmonize with the facts and law of the case. (Gans & Klein Inv. Co. v. Sanford, 91 Mont. 512, 8 Pac. (2d) 808.)
If the decree were complete in all details relating to the actual amounts of water to be used under the various appropriations there would be no occasion, in construing it, to resort to pleadings or evidence. But in construing a decree which is lacking in certain elements or obscure or uncertain in meaning, reference may be made to the pleadings, judgment roll, or en tire record of the case. (Sharkey v. City of Butte, 52 Mont. 16, 155 Pac. 266; Wallace v. Goldberg, supra; Brennan v. Jones, 101 Mont. 550, 55 Pac. (2d) 697; 21 C. J. 689, sec. 862; 1 Freeman on Judgments, 5th ed., sec. 77; 19 Am. Jur. 285, sec. 414.) The latter text states that “reference may be had to the pleadings, evidence, and record of the case,” citing as an authority Wright v. Phillips, 127 Or. 420, 272 Pac. 554. That statement may be correct in ioto, since, as stated in the preceding paragraph the issues as framed by the pleadings may have been materially altered by the evidence; but it is unnecessary to decide that point here, since proof concerning the beneficial use of the water rights in question, both before and after the 1913 adjudication, was placed in evidence without objection by all the parties in this proceeding and was obviously necessary and relevant to explain the meaning and extent of the decreed rights so as to enable the court properly to direct the water commissioner concerning his duties. Appellants’ failure to make any showing of an actual adjudication to them of water rights in uninterrupted flow during the irrigating season, or of any other than the normal use of their rights, clearly demonstrates that no injustice has been done them.
¥e feel constrained, therefore, to hold that in this proceeding under Code section 7150, it was proper for the trial court to consider the rights of the parties as the basis for its orders and instructions to the water commissioner; that in doing so under the usual form of decree awarding water rights in terms of flow measurement but failing to specify the exact acres irrigated or the time of flow or the volume of water actually used, it was not only proper but necessary to ascertain those other essential elements relative to the adjudicated water rights; and that the appellants cannot in this instance object to the court’s manner of ascertaining those facts.
The order appealed from is hereby affirmed.
Associate Justices Erickson and Arnold concur.
Mr. Justice Morris dissents.
Rehearing denied July 8, 1940.
|
[
-17,
49,
60,
5,
-7,
-1,
24,
-5,
21,
21,
20,
-33,
-16,
5,
16,
-29,
-51,
-32,
29,
-25,
24,
12,
62,
-13,
-24,
35,
-15,
-22,
-12,
-22,
-15,
-38,
-23,
-9,
1,
3,
50,
9,
-9,
-1,
2,
15,
-26,
-54,
-3,
19,
17,
-22,
-2,
15,
10,
-2,
-15,
-5,
-102,
-18,
-31,
-12,
-20,
6,
-61,
22,
19,
16,
23,
41,
-35,
-6,
63,
-28,
-15,
1,
51,
-29,
34,
3,
-4,
-34,
-28,
14,
-61,
66,
-9,
39,
-30,
27,
-43,
-20,
41,
31,
13,
23,
23,
-28,
53,
-65,
21,
-28,
-17,
45,
20,
9,
29,
2,
38,
-40,
-46,
-21,
9,
35,
-1,
7,
-21,
-4,
-49,
-16,
14,
-12,
7,
5,
20,
51,
-3,
29,
-39,
-23,
-25,
-8,
34,
56,
-14,
-6,
-6,
-38,
49,
9,
8,
21,
46,
13,
35,
-35,
0,
-28,
0,
65,
0,
47,
9,
-7,
24,
14,
-17,
0,
1,
11,
5,
-34,
-9,
42,
17,
9,
43,
-65,
-86,
20,
-25,
-45,
13,
47,
43,
-22,
25,
-41,
2,
-8,
-6,
-18,
-8,
40,
43,
7,
25,
-1,
-50,
45,
-38,
29,
-16,
60,
20,
-60,
-18,
-22,
-17,
1,
38,
-29,
13,
-17,
-2,
-6,
13,
-39,
3,
-28,
-5,
45,
36,
17,
16,
-24,
17,
7,
-49,
-3,
46,
14,
-16,
-5,
53,
-2,
56,
-51,
-5,
-18,
-20,
64,
0,
-6,
27,
-9,
29,
43,
2,
40,
3,
42,
-43,
-23,
-25,
-4,
4,
-26,
-8,
19,
-37,
3,
-18,
90,
5,
-51,
-17,
30,
10,
15,
-25,
25,
-15,
-55,
58,
-3,
-7,
2,
-15,
-12,
-52,
14,
21,
12,
-67,
0,
48,
23,
-30,
-25,
82,
-4,
-47,
57,
-4,
-3,
16,
-7,
22,
19,
17,
9,
28,
53,
-7,
50,
0,
31,
47,
28,
-2,
-3,
-7,
-37,
-19,
-20,
0,
27,
13,
46,
-39,
9,
-26,
-1,
19,
52,
-18,
7,
-62,
55,
-13,
-4,
33,
28,
-8,
27,
15,
7,
-57,
44,
18,
23,
5,
2,
1,
23,
7,
-25,
35,
-31,
14,
-7,
-13,
51,
12,
0,
10,
50,
22,
-11,
13,
-38,
-15,
16,
-13,
54,
-51,
24,
-31,
-66,
-15,
-28,
-26,
-10,
15,
-2,
-11,
6,
-15,
22,
-4,
3,
22,
-27,
-22,
1,
-20,
35,
13,
27,
22,
40,
-6,
42,
-9,
12,
25,
14,
44,
12,
0,
25,
-38,
22,
3,
0,
-69,
60,
-19,
21,
21,
7,
13,
-29,
-11,
11,
-28,
41,
9,
50,
-26,
-10,
28,
-12,
-10,
-80,
-3,
-37,
14,
4,
-15,
40,
9,
-19,
-25,
-8,
-26,
-8,
13,
17,
52,
3,
5,
26,
-25,
12,
-10,
-28,
-20,
25,
-20,
0,
-21,
19,
-27,
39,
41,
-47,
-45,
15,
32,
24,
-12,
-22,
6,
-16,
-10,
13,
30,
2,
24,
-2,
0,
27,
-31,
45,
-38,
0,
-80,
23,
-5,
-13,
-15,
5,
14,
77,
33,
-28,
-7,
28,
-21,
15,
32,
-45,
29,
-32,
-13,
-13,
0,
-36,
-41,
-31,
27,
-17,
39,
-14,
16,
-78,
-1,
-47,
15,
-49,
-10,
9,
14,
13,
6,
-21,
-63,
0,
15,
20,
11,
77,
22,
-56,
23,
-58,
1,
-17,
21,
-19,
-22,
16,
5,
-14,
-29,
7,
-36,
38,
-58,
-37,
55,
-34,
-17,
12,
-76,
-7,
-32,
12,
-36,
-4,
-30,
-71,
31,
18,
43,
16,
-74,
25,
-46,
-96,
37,
-50,
24,
32,
-69,
-29,
4,
22,
-87,
-46,
-25,
16,
0,
7,
13,
-27,
-17,
85,
0,
22,
10,
1,
-11,
5,
-10,
-13,
24,
-22,
-17,
3,
9,
15,
-4,
-74,
-46,
-34,
9,
49,
23,
22,
-35,
-7,
-13,
-9,
-43,
9,
40,
3,
50,
-29,
9,
7,
45,
-1,
4,
43,
42,
75,
-34,
16,
-7,
36,
23,
35,
7,
32,
33,
-21,
20,
-56,
35,
-18,
8,
-34,
50,
16,
0,
23,
-14,
42,
22,
-6,
17,
-1,
-24,
-84,
55,
17,
-43,
14,
-45,
54,
39,
-28,
-71,
-66,
34,
-38,
14,
-9,
23,
-37,
-17,
-1,
42,
-15,
47,
16,
35,
-23,
5,
11,
51,
-37,
8,
-14,
0,
-6,
31,
25,
-32,
18,
1,
-44,
16,
21,
-6,
-36,
23,
30,
-1,
-23,
38,
-33,
-21,
19,
15,
3,
57,
-10,
18,
-35,
-23,
-6,
-16,
26,
-8,
0,
20,
33,
-33,
-56,
-12,
-53,
47,
2,
-59,
0,
19,
-33,
-11,
-6,
-39,
-31,
-10,
27,
5,
-36,
20,
-19,
-29,
36,
19,
7,
-25,
-6,
61,
35,
-19,
8,
-35,
32,
0,
33,
17,
5,
-3,
-17,
-38,
6,
-6,
-23,
31,
-8,
-13,
-40,
-23,
-25,
43,
-20,
-2,
49,
2,
-67,
45,
-25,
-24,
18,
17,
18,
-25,
-20,
43,
-15,
-12,
1,
-1,
-54,
2,
-32,
-17,
31,
-11,
-16,
7,
4,
-23,
-41,
-21,
24,
14,
10,
-42,
-29,
-43,
-30,
81,
10,
32,
21,
-14,
-45,
-59,
-1,
-27,
-26,
10,
17,
-37,
27,
-52,
10,
9,
30,
83,
17,
-8,
10,
-32,
-27,
-3,
11,
-53,
25,
19,
-44,
33,
-14,
0,
22,
-20,
7,
-20,
-1,
11,
16,
16,
32,
30,
9,
-33,
1,
6,
-25,
-40,
28,
-13,
-5,
26,
35,
7,
2,
-40,
-16,
1,
-57,
-2,
-26,
-43,
32,
-11,
60,
-28,
32,
-10,
-4,
-2,
-58,
-30,
-37,
24,
1,
53,
21,
76,
-15,
0,
-6,
22,
5,
-38,
25,
-53,
0,
-54,
-48,
-42,
2,
-2,
-17,
53,
8,
-24,
-46,
-3,
0,
1,
38,
-1,
50,
43,
35,
2,
-41,
-3,
34,
-32,
3,
-14,
-23,
-56,
-8,
32,
-31,
22,
-10,
-23,
-37,
-26,
-5,
-6,
82,
32,
-10,
-16,
-20,
-20,
-41,
-5,
-91,
-1,
34,
10,
-35,
-31,
-11,
-39,
-2,
18,
-30,
15,
44,
-50,
-17,
-9,
7,
8,
4,
18,
-17,
-8,
-24,
-55,
-1,
23,
48,
33,
-4,
10,
-53,
-30,
24,
4,
12,
-31,
40,
59,
27,
-23,
38,
13,
-50,
-29,
2,
-16,
-2,
29,
-13,
25,
48,
-10,
32,
8,
3,
7,
2,
11,
-5,
7,
43,
11,
-35,
11,
-10,
-17,
17,
16,
40,
-5,
-63,
-22,
18,
-21,
23,
43,
-26,
25,
-4,
-48,
1,
3,
-15,
35,
-7,
-84,
31,
-12,
15,
22,
31,
-11,
-17,
2,
-19,
7,
-32,
-20,
16,
18,
7,
-16,
-16,
9,
15,
-59,
41
] |
MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiff brought this action to recover possession of an undivided one-third interest in certain oil and gas leaseholds covering certain described property in Toole county, and for an accounting of the income therefrom alleged to have been received by defendant. The important allegations of the complaint are to this general effect:
That on or about the 24th of January, 1924, plaintiff, S. C. Ferdig and H. L. Lowe entered into a joint adventure whereby they acquired the lands in controversy here, each to hold an undivided one-third interest in and to the property; that pursuant to the agreement plaintiff advanced to S. C. Ferdig $10,-000 for the purpose of acquiring such lands; that Ferdig acquired the property but took it in the name of the Sylvester Oil Company, a common-law trust in which the three alleged joint owners were each to own one-third of the units; that thereafter S. C. Ferdig organized a corporation known as the Ferdig Oil Company, to which the lands in question were transferred with the understanding that the joint owners would own an equal interest in the corporation.
The complaint alleges that defendant purchased at judicial sale the property of the Ferdig Oil Company with notice and knowledge that plaintiff was the owner of a one-third interest therein. It sets forth that plaintiff instituted an action in the federal district court of Wyoming on the 6th day of August, 1929, against S. G. Ferdig and others, including the Sylvester Oil Company, the Ferdig Oil Company and the defendant Thelen, wherein plaintiff set out the foregoing facts and alleged that after trial he was successful in that action and by the decree of that court was awarded a one-third interest in and to the property in question. The court in the instant action found for defendant, and plaintiff appealed.
The facts of the case, so far as necessary to determine the points of law involved, may be stated by summarizing the findings of the court and by reciting the substance of documentary evidence. It may be said at the outset that the principal objection to the findings is that they are contrary to the decree entered by the federal court in Wyoming, which will hereafter be considered more in detail. There is no contention that the findings in this case are not supported by substantial evidence, if we assume that evidence was admissible in this action which had the effect of impeaching the findings in the Wyoming decree. Before discussing the action in Wyoming we shall briefly summarize the salient facts found by the eonrt in this action as supplemented by record and undisputed evidence. Those facts are as follows:
On January 4, 1924, S. C. Ferdig acquired an interest in an oil and gas lease on part of the lands in controversy here-and, needing funds with which to make payments thereon and with which to acquire other lands and drill for oil thereon, made and acknowledged a declaration of trust on January 24, wherein he declared himself trustee of the trust known as Sylvester Oil Company. It declared that he, being the owner of the above-mentioned interest, offered to sell it to himself as trustee for 10,000 unit certificates. It provided for the issuance of 40,000 units, 10,000 to be issued to S. C. Ferdig for the property mentioned above and 6,000 additional to be held and owned by him for organizing and managing the trust, and the remainder to be sold for $10 per unit. The trustee was vested with authority to make contracts for the development, operation and disposition of the property, and to manage, control and supervise the business, property and affairs of the syndicate. It provided that the money paid to the trust should be expended in developing the property and acquiring new property and for other expenses of the syndicate. The trust provided that no unit-holder should have any legal title to, or equitable estate in the trust property, but that the stockholder’s interest should consist of an interest in the money to arise from the sale or other disposition of the property. The trust authorized the trustee to organize a corporation in place of the syndicate if he deemed it for the best interest of the syndicate; and that in the event he did so each unitholder should receive corporate stock on the same basis as he held certificates in the syndicate. The record discloses that pursuant to this authority S. G. Ferdig caused a corporation to be formed known as the Ferdig Oil Company. To this corporation the above-mentioned property, being part of the property in question here, was transferred on April 8, 1926, and the syndicate went out of existence. The other land involved herein never was owned by the Sylvester Oil Company.
Pursuant'to an agreement between H. L. Lowe, then a resident of Wisconsin, and S. C. Ferdig, the former sold and disposed of certificates in the Sylvester Oil Company, the proceeds of which were sent to Ferdig for use in developing the oil land. Plaintiff, at the instigation of Lowe, assisted the latter'with the sale of stock certificates and likewise transmitted the proceeds to Ferdig.
Ferdig caused two other corporations to be created, known as the Cody Petroleum Company and the Yellowstone Petroleum Company. The Cody company was an operating and producing company, and the Yellowstone company was the holding company. Ferdig was the moving spirit in all three corporations. Neither the Cody nor the Yellowstone company owned any lands in Montana. The Yellowstone company owned 82 per cent, of the stock of the Ferdig Oil Company. The Cody company sold its assets in August, 1929, and thereafter owned no property. At that time it owed Thelen about $19,000, which was “switched over” to the Yellowstone Petroleum Company. The latter company later lost all of its property save the stock of the Ferdig Oil Company. In order to protect his rights to the claim against the Yellowstone Petroleum Company, Thelen advanced money to the Ferdig company to pay taxes and settle lawsuits against it.
On August 6, 1929, plaintiff Wilson brought an action in the federal court of Wyoming against S. C. Ferdig, I. E. Fer-dig, Sylvester Oil Company, Sylvester Ferdig, Trustee of Sylvester Oil Company, Ferdig Oil Company, Yellowstone Petroleum Company, H. L. Lowe and J. N. Thelen. Lowe was not served with process and made no appearance in the action. Thelen was dismissed from the action on the merits with his costs. The decree in that action provided that Wilson was entitled to one-third of 16,000 units in the Sylvester Oil Company, and additional units in consideration of the payment of $10,000, and that he was entitled to have delivered to him in exchange therefor shares of stock in the Ferdig Oil Company of like value, and also shares of the Yellowstone Petroleum Company of like value, and also was entitled to. dividends thereon, and that Wilson was also the owner of a one-third interest in and to lands and leases acquired by S. C. Ferdig.
The court in the instant action found that the Wyoming action was local and binding only as to property within the jurisdiction of the court, and that Lowe was a necessary party to the action so far as an adjudication of title to property was concerned. The court also found that defendant Thelen on July 10, 1931, purchased at judicial sale all of the right, title and interest of the Ferdig Oil Company in and to the leases involved herein, together with the machinery and equipment situated on the property, and that ever since that date he has been in the possession of the machinery and equipment, and that on September 20, 1932, he obtained a sheriff’s deed to the real property covered by the leases.
The court further found that all of the personal property of the Ferdig Oil Company was sold to Thelen for delinquent taxes on April 27, 1931, and that all of the real property here involved was struck off to Toole county for delinquent taxes on January 29,. 1929, and that on May 6, 1931, Thelen paid the taxes then due and delinquent and obtained an assignment of the tax sale certificate covering the real estate; that there was no redemption from any of the sales; that on December 31, 1932, Thelen for a valuable consideration transferred to F. J. Buscher an interest in the property; that between January 4, 1924, and August 6, 1929, plaintiff Wilson made no claim or demand upon S. C, Ferdig or H. L. Lowe, although he knew or should have known that they denied that plaintiff had any interest whatsoever; that between December 11, 1931, and the time of commencing this action, plaintiff made no claim or demand to the lands in question, and made no attempt to redeem them but stood by speculating as to possible increase in the value thereof.
The court found that defendant Thelen had notice of the pendency of plaintiff’s action in Wyoming, but that he had no notice that plaintiff asserted any claim or title to the lands involved in this action. It found that defendants Thelen and Buscher at all times acted in good faith and without fraud.
As conclusions of law the court found that the federal court in Wyoming was without jurisdiction to adjudicate the title to lands in Montana; that the decree in the Wyoming court is not res adjudícala as to Thelen and Buscher; that there was no joint adventure between S. C. Ferdig, plaintiff, and H. L. Lowe, as alleged in the complaint; and that plaintiff has been guilty of laches in asserting his claim against Thelen and Buscher. It denied relief to plaintiff and awarded costs to defendant.
As before stated, the main question here is whether the decree in the Wyoming court was res ad judicata. The pleadings need not be analyzed in detail. It is sufficient to say that the pleadings therein on the part of plaintiff raised the question of the title and ownership of the land here involved. The answer of defendant Thelen in that action did not set forth his interest in the property. It is contended by plaintiff that Thelen should have set forth his interest in and to the property in the Wyoming suit and, not having done so, he is precluded from now asserting any interest therein.
There would be merit in plaintiff’s contention if the Wyoming court had jurisdiction to litigate title to land in Montana. But it is firmly established that an action to determine title to or an interest in real estate is local, and that the courts of one state have no jurisdiction to litigate the title to lands in another state. The general rule is stated in 15 C. J. 742, 14 Am. Jur.o430, 431, and 7 R. C. L. 1059. That rule applies also to the federal courts. (Ellenwood v. Marietta Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913; Shell Petroleum Corp. v. Moore, (5 Cir.) 46 Fed. (2d) 959; Livingston v. Jefferson, 15 Fed. Cas. No. 8411, p. 660.) Jurisdiction lacking, it cannot be conferred by consent. (15 C. J. 802, 7 R. C. L. 1039.)
Had Thelen set out his interest in the property in the answer in the Wyoming case, the court would not have acquired jurisdiction to adjudicate title to the Montana property. The circuit court of appeals in Ferdig Oil Co. v. Wilson, (10 Cir.) 91 Fed. (2d) 857, held that since defendant Thelen filed an answer in the federal court in Wyoming, he submitted himself and his property rights to the jurisdiction of the court no matter where the property was situated. The authorities cited by the court in support of its conclusions are not in point and do not sustain the court’s conclusion. We have not found any other authorities sustaining that view. The authorities sustaining the view that jurisdiction cannot be conferred by consent support the conclusion that the Wyoming court was without jurisdiction to determine title to real estate in Montana as against anyone, whether he submitted to the jurisdiction over his person or not. While it is proper for parties to submit to the jurisdiction of the court so far as their person is concerned, they cannot by consent give the court jurisdiction over real property outside the state. In other words, had the Wyoming ease been one to compel the execution of a deed to property in Montana, a judgment so directing would have been binding upon those who were served and were before the court. The distinction between the two types of jurisdiction is well pointed out in Brach v. Moen, (8 Cir.) 4 Fed. (2d) 786, 790, and the cases therein cited. Among such eases is that of Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640, from which the court in the Brach Case quoted the following: “The real estate was situated in Tennessee and governed by the law of its situs, and while by means of its power over the person of a party a court of equity may in a proper case compel him to act in relation to property not within its jurisdiction, its decree does not' operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant, as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court ‘has no inherent power, by the mere force of its decree, to annul a deed, or to establish a title.’ ” The Wyoming case did not seek the execution of a deed by Thelen but the decree attempted to operate directly upon the title to the property. The court was without jurisdiction so to do. Hence the main contention of plaintiff cannot prevail.
It is contended that when Thelen purchased the property of the Ferdig Oil Company at decretal sale, he knew of plaintiff’s claim to a one-third interest therein by virtue of the fact that he was a party to the Wyoming suit and entered an appearance therein. That Thelen knew of this claim by plaintiff must be conceded, and the trial court’s finding to the contrary was incorrect. However, that fact does not alter the correctness of the trial court’s conclusion on the merits of the case. The fact that Thelen had notice of plaintiff’s claim at the time he purchased the land simply placed him in the position of buying the property at his peril. But the trial court found that plaintiff had no interest in the property and that in fact there was no joint adventure as alleged. There is substantial evidence supporting that conclusion and, this being so, we will not disturb the trial court’s finding. The decree in the Wyoming court to the contrary, as above pointed out, was not res adjudicata for want of jurisdiction. The lower court here had jurisdiction and its finding on the point is the only adjudication on the merits of plaintiff’s claim and, it being groundless, Thelen’s knowledge thereof did not affect the validity of the interest acquired by him.
Plaintiff’s next contention is that when Thelen obtained the property in question he occupied a fiduciary relationship to the Ferdig Oil Company, which made it improper for him to purchase the assets of the Ferdig Oil Company. That a director of a corporation may not deal with the corporate property in such a way as to acquire an interest adverse to that of the corporation is well settled. (Golden Rod Min. Co. v. Bukvich, 108 Mont. 569, 92 Pac. (2d) 316.) So far as the Ferdig Oil Company is concerned, however, the defendant Thelen was not a director in the corporation. The only relationship he bore to that corporation was that he was a member of the firm of Freeman, Thelen & Freeman, which firm was attorney for that corporation. Hence, the rule prohibiting directors from dealing with the assets of a corporation does not come into play so far as Thelen’s dealings with the Ferdig Oil Company are concerned.
But plaintiff contends, and the record shows, that defendant Thelen was the vice-president and a director of the Yellowstone Petroleum Company, which was the owner and holder of 82 per cent, of the stock of the Ferdig Oil Company, and that he was therefore prohibited from dealing in the property of the Ferdig Oil Company adversely to the interests of the Yellowstone Petroleum Company. It is sufficient answer to this contention to note that Thelen warned the officers of both the Ferdig Oil Company and the Yellowstone Petroleum Company that if they did not pay him the money he had advanced to protect the property he was going to start in to protect himself, and that he was going to bid on the property. When the corporation is thus timely warned, the director is at liberty to acquire interests in the property adverse to that of the corporation. (Golden Rod Min. Co. v. Bukvich, supra.) Furthermore, a director in a corporation to whom the corporation owes a bona fide indebtedness may enforce payment by the same method open to any other creditor. (Mayger v. St. Louis M. & M. Co., 68 Mont. 492, 219 Pac. 1102; 14 C. J. 848.) The effect of Thelen’s action in bidding in the property at the decretal sale was to discharge a first lien upon the property in order to reach the equity in the property over and above the lien. When there is a forced sale of corporate property, a director who is also a creditor who warns the corporation that he is about to do so, may bid upon the property without being charged with improperly taking an interest adverse to the corporation.
There is here no question of bad faith on the part of the defendant Thelen. In fact, the court expressly found that in all his dealings he acted in good faith. It follows that when Thelen acquired the property of the Ferdig Oil Company at decretal sale he obtained a good title, since the court found that there was no joint undertaking as alleged.
Plaintiff contends that the sale by Thelen of an interest in the property to Buscher cannot stand since Buscher was president of the Ferdig Oil Company and of the Yellowstone Petroleum Company, and director of and managing the busi ness of both companies. The court expressly found that Buscher acted at all times in good faith. He purchased, not from the corporation, but from Thelen after the latter had acquired the interest of the corporation. There is nothing in the record to indicate that he was expected to buy it from Thelen for the benefit of the corporation. Thelen having a good title, as we have pointed out above, had the right to transfer the property or any interest therein to Buscher. The latter, acting in good faith in purchasing from Thelen, acquired as good a title as Thelen had.
Some contention is made that, since defendant Thelen was attorney for the Ferdig Oil Company, he was prohibited by section 8980, Revised Codes, from dealing with the property of the Ferdig Oil Company in the manner in which he did. We do not so interpret that section. Mr. Thelen had a bona fide indebtedness against the Ferdig Oil Company and was privileged to protect that interest and claim in the manner in which he did.
Judgment affirmed.
Mr. Chief Justice Johnson and Associate Justices Erickson and Arnold concur.
|
[
15,
37,
13,
47,
-1,
18,
-1,
-20,
0,
38,
17,
-28,
73,
-20,
27,
15,
22,
0,
50,
-6,
2,
-30,
21,
-19,
5,
-35,
-7,
-5,
-23,
-19,
23,
22,
-16,
-35,
9,
45,
-36,
14,
-9,
-42,
10,
39,
18,
-1,
22,
26,
-35,
-45,
26,
-18,
41,
4,
-20,
-2,
-29,
-59,
-6,
-5,
-31,
61,
37,
-37,
47,
35,
60,
0,
-10,
-29,
22,
-36,
5,
21,
31,
-26,
14,
-4,
26,
18,
-21,
3,
2,
19,
24,
0,
-5,
53,
-30,
39,
37,
-2,
-36,
-16,
-2,
50,
-21,
17,
-10,
-6,
-27,
2,
-13,
-56,
-34,
-5,
48,
-5,
-31,
31,
76,
20,
8,
-10,
-6,
7,
-11,
-39,
-2,
3,
-39,
-2,
-17,
-29,
0,
57,
-36,
48,
-18,
10,
24,
57,
-27,
28,
32,
31,
34,
-5,
29,
-33,
-33,
-14,
-36,
-12,
-27,
13,
-4,
30,
29,
10,
43,
-34,
-23,
31,
12,
11,
30,
-90,
22,
-11,
23,
-44,
0,
-55,
13,
-4,
-37,
25,
25,
-5,
-41,
24,
43,
14,
-45,
-58,
-15,
19,
9,
0,
-43,
-14,
-21,
17,
-13,
-13,
-12,
-9,
11,
7,
0,
28,
23,
-47,
-4,
-22,
-89,
-3,
3,
-24,
-31,
-19,
-14,
-22,
14,
4,
-29,
18,
5,
11,
37,
-13,
47,
38,
13,
-95,
-50,
14,
-12,
12,
19,
-11,
34,
-27,
-26,
-2,
0,
0,
55,
69,
-24,
-63,
-40,
-4,
27,
-16,
-39,
-29,
-20,
14,
-25,
11,
-11,
-8,
-19,
-13,
45,
34,
-1,
-5,
0,
56,
-55,
-27,
-29,
45,
3,
40,
1,
-37,
-49,
-17,
26,
19,
-36,
13,
-13,
-32,
-23,
-6,
21,
37,
-20,
-10,
14,
78,
-39,
-24,
5,
-30,
2,
10,
15,
-26,
-2,
36,
-22,
9,
10,
39,
-5,
3,
12,
-20,
14,
-26,
8,
23,
17,
-30,
55,
39,
-67,
31,
-9,
19,
10,
-2,
-4,
13,
-32,
-7,
26,
11,
-29,
-55,
-30,
21,
-6,
39,
-7,
-95,
27,
11,
0,
-5,
25,
-11,
26,
-49,
-7,
14,
21,
-20,
-16,
48,
-67,
-23,
-3,
-30,
-16,
16,
18,
27,
18,
-25,
-2,
25,
19,
-39,
-15,
31,
-19,
-61,
-16,
17,
-64,
-19,
28,
26,
0,
12,
39,
-9,
-3,
-13,
-29,
2,
-45,
-49,
-22,
-4,
3,
-18,
-11,
0,
6,
1,
15,
-35,
-13,
6,
5,
-23,
23,
-14,
6,
36,
7,
-29,
-59,
-5,
-23,
63,
10,
63,
-34,
-57,
39,
-49,
-20,
34,
8,
39,
-19,
-34,
-44,
-39,
57,
45,
-28,
4,
37,
-80,
-37,
-45,
21,
-25,
1,
54,
18,
4,
22,
-4,
-51,
-69,
5,
-26,
22,
-3,
-52,
-41,
-13,
-18,
2,
11,
29,
-41,
-38,
6,
-15,
56,
19,
16,
2,
2,
-26,
34,
-11,
80,
58,
-35,
-1,
31,
0,
5,
-34,
31,
87,
-62,
7,
-23,
25,
13,
7,
-3,
-60,
22,
41,
-12,
16,
71,
33,
49,
8,
-21,
6,
19,
-29,
-13,
-16,
-24,
-39,
2,
-29,
40,
2,
-31,
5,
-14,
28,
27,
10,
10,
-27,
-50,
-38,
-15,
41,
10,
67,
0,
-32,
-18,
34,
6,
20,
36,
11,
-20,
-1,
70,
4,
-30,
17,
3,
13,
-25,
-13,
-32,
-7,
33,
35,
0,
-47,
35,
-66,
4,
26,
-8,
74,
-46,
-28,
-7,
-11,
5,
-19,
9,
29,
28,
-8,
-31,
23,
-4,
32,
5,
-30,
4,
15,
-20,
23,
-12,
-25,
0,
8,
21,
2,
36,
21,
-45,
-5,
-30,
-35,
51,
-20,
-32,
41,
-16,
-30,
-16,
24,
-19,
-21,
38,
41,
13,
42,
-8,
-46,
10,
-52,
7,
-20,
15,
-7,
-27,
-56,
57,
1,
17,
-27,
0,
-24,
-12,
31,
4,
12,
-1,
20,
-1,
-12,
4,
-9,
-20,
-19,
8,
-5,
-38,
-58,
17,
-22,
30,
-4,
28,
23,
-3,
53,
19,
21,
-38,
19,
-7,
60,
-43,
11,
23,
59,
41,
-61,
-22,
-31,
10,
-4,
-18,
-34,
21,
20,
5,
-15,
2,
-47,
-12,
68,
-35,
1,
-14,
17,
-33,
30,
-34,
23,
-7,
7,
-9,
2,
-24,
-31,
63,
7,
-15,
8,
-46,
66,
-5,
-10,
3,
-24,
-58,
21,
14,
18,
30,
27,
-45,
36,
-16,
8,
0,
22,
19,
28,
-4,
-23,
-29,
-3,
6,
-3,
4,
14,
27,
-12,
-17,
27,
-2,
-46,
22,
-55,
-20,
21,
-30,
7,
23,
17,
-9,
3,
5,
14,
7,
21,
-35,
43,
31,
61,
-8,
9,
9,
-33,
-4,
11,
-33,
-73,
-50,
6,
-7,
-30,
-31,
34,
39,
15,
28,
3,
-12,
20,
19,
-30,
51,
-22,
-3,
-13,
-28,
1,
14,
50,
0,
-3,
41,
-43,
0,
43,
-7,
18,
12,
10,
-14,
11,
56,
-8,
-7,
-24,
19,
0,
-54,
56,
28,
-23,
-7,
-7,
-13,
-6,
-43,
-33,
13,
6,
9,
-12,
-12,
28,
8,
-11,
25,
36,
39,
-9,
-23,
-26,
-16,
1,
0,
3,
48,
13,
65,
-20,
-34,
41,
-40,
-10,
-8,
6,
-5,
-16,
-20,
-42,
-24,
28,
56,
7,
-2,
39,
11,
-21,
19,
-32,
-37,
27,
-56,
57,
6,
-18,
14,
-23,
-34,
-3,
-23,
6,
68,
24,
7,
17,
-30,
25,
30,
35,
-48,
-31,
36,
29,
7,
26,
0,
23,
-53,
28,
-48,
-49,
-20,
32,
-10,
-43,
26,
-29,
-14,
-20,
-2,
-23,
1,
-31,
-3,
-30,
34,
32,
46,
33,
41,
-39,
48,
23,
-65,
12,
-21,
-49,
46,
-32,
63,
4,
-18,
13,
32,
-12,
-38,
38,
17,
-33,
24,
-44,
34,
-24,
42,
42,
18,
10,
12,
29,
-52,
-57,
-47,
-27,
-18,
60,
-54,
24,
-36,
-52,
-30,
42,
-1,
-36,
-24,
36,
3,
-8,
4,
35,
-9,
-29,
-9,
-68,
27,
4,
-27,
13,
24,
40,
5,
-27,
1,
-62,
-43,
-44,
54,
24,
46,
-5,
-6,
-26,
-10,
-7,
15,
-10,
10,
-31,
-24,
-8,
-39,
35,
19,
-12,
5,
-29,
-33,
-8,
63,
26,
23,
-25,
75,
-8,
-26,
-16,
13,
18,
-51,
-40,
43,
-10,
5,
-2,
-84,
21,
54,
4,
-12,
-11,
-14,
-24,
1,
-6,
1,
-16,
28,
-1,
-25,
6,
11,
-52,
32,
61,
-23,
13,
23,
-6,
68,
21,
9,
27,
-10,
32,
23,
29,
5,
-28,
-60,
16,
-8,
-26,
27,
-6,
32,
33,
2,
40,
-60,
-64,
-44,
8,
3,
-16,
67,
18,
-23,
-5,
-11,
-31,
-22,
-36,
49
] |
PER CURIAM.
In accordance with praecipe of appellants the appeal herein is dismissed.
|
[
-59,
-28,
68,
13,
7,
-19,
26,
-22,
0,
-41,
-51,
44,
-72,
-3,
-88,
48,
-9,
-23,
11,
-34,
-10,
60,
21,
-20,
-35,
-29,
-13,
39,
79,
21,
11,
9,
-20,
21,
-11,
-45,
-14,
15,
51,
-12,
19,
34,
-6,
7,
0,
-30,
47,
6,
37,
52,
-28,
27,
-35,
-65,
-85,
12,
1,
-28,
0,
-10,
-8,
35,
-17,
-8,
-4,
-1,
26,
-7,
29,
35,
-6,
13,
50,
11,
35,
-7,
-10,
26,
17,
38,
34,
44,
15,
40,
-6,
0,
33,
85,
-9,
19,
-10,
-15,
37,
-85,
-73,
59,
64,
-3,
-17,
-2,
1,
18,
32,
-25,
1,
-73,
-19,
47,
-37,
10,
-9,
27,
-70,
33,
30,
87,
-26,
43,
90,
22,
-18,
61,
6,
35,
-29,
7,
-41,
17,
25,
-8,
21,
34,
-19,
18,
55,
-9,
24,
31,
-9,
-15,
-6,
-10,
-31,
-20,
-39,
-2,
-46,
31,
43,
-36,
25,
-31,
-45,
23,
40,
26,
-36,
-43,
42,
58,
-11,
-88,
-12,
39,
19,
17,
-40,
-48,
27,
-7,
38,
0,
30,
-17,
-21,
-5,
-42,
19,
47,
8,
45,
24,
0,
-2,
-43,
16,
-30,
52,
18,
-36,
-65,
10,
2,
5,
-1,
-43,
48,
26,
0,
17,
-58,
8,
-14,
-48,
-27,
11,
-43,
-37,
37,
-14,
8,
-32,
5,
-41,
36,
16,
-2,
55,
25,
83,
31,
-13,
-39,
-72,
20,
-12,
-51,
41,
-3,
25,
-34,
27,
-41,
6,
44,
-43,
24,
29,
-21,
-63,
-73,
-18,
52,
-46,
-31,
-15,
82,
107,
33,
-8,
57,
-7,
104,
-1,
-2,
-26,
-17,
45,
8,
-21,
44,
-8,
-12,
-12,
-53,
36,
72,
28,
30,
-11,
-32,
33,
19,
23,
68,
-60,
-27,
-40,
17,
10,
-40,
-14,
-16,
-52,
-18,
16,
-19,
-29,
15,
1,
-1,
36,
-2,
-6,
35,
9,
-14,
59,
-71,
-29,
-5,
11,
0,
-12,
59,
4,
-24,
44,
37,
-51,
-62,
78,
76,
-6,
-42,
63,
-50,
-56,
-14,
-37,
-23,
-10,
-46,
5,
-32,
-61,
-18,
-14,
71,
14,
-1,
22,
29,
-6,
-52,
84,
-4,
69,
34,
28,
-21,
20,
-46,
12,
-1,
-17,
0,
5,
35,
29,
-66,
34,
12,
-78,
57,
-50,
15,
-61,
-32,
8,
-26,
13,
65,
42,
47,
6,
-28,
25,
-60,
-14,
-37,
18,
-5,
-25,
6,
25,
31,
15,
-3,
-6,
-62,
-26,
46,
20,
-30,
50,
40,
81,
-10,
-40,
-62,
11,
-25,
-46,
-47,
19,
33,
48,
10,
55,
2,
-24,
-48,
-8,
-14,
-56,
41,
1,
-48,
12,
-49,
53,
20,
28,
49,
-2,
-3,
3,
73,
10,
28,
-20,
-12,
108,
-70,
69,
-13,
-5,
19,
-51,
23,
-51,
41,
8,
-18,
58,
24,
-8,
9,
60,
-34,
-11,
-29,
-42,
-72,
23,
-23,
-24,
-15,
-16,
31,
-56,
2,
-32,
-16,
4,
-26,
-2,
-38,
63,
-11,
25,
-49,
-52,
3,
11,
67,
-12,
5,
0,
-48,
-49,
-57,
-3,
-16,
-10,
-41,
27,
-23,
-51,
62,
-35,
22,
7,
-24,
22,
-10,
0,
17,
-8,
-28,
-41,
1,
6,
-35,
-54,
-8,
-54,
-106,
-7,
42,
-3,
-43,
5,
61,
-39,
8,
-15,
-11,
-71,
6,
-57,
27,
50,
-8,
16,
26,
13,
-8,
24,
-29,
-25,
-33,
-61,
38,
4,
-30,
53,
62,
-5,
-25,
9,
-26,
-1,
33,
-19,
-5,
-19,
-11,
-70,
-10,
14,
33,
51,
17,
63,
25,
64,
25,
12,
-3,
29,
-57,
9,
-6,
-19,
-38,
-52,
65,
-43,
-19,
-56,
-11,
-4,
18,
32,
13,
-2,
-16,
53,
19,
-26,
14,
-10,
15,
-10,
71,
10,
-82,
-27,
-7,
41,
-69,
32,
-51,
32,
-13,
-13,
49,
-33,
-46,
5,
68,
-63,
20,
-37,
-16,
34,
-39,
65,
4,
-9,
-8,
61,
-30,
16,
-9,
12,
-14,
15,
58,
55,
-51,
-5,
-40,
-40,
-15,
44,
1,
47,
8,
49,
-55,
10,
-2,
44,
-29,
-50,
-23,
79,
30,
70,
-43,
-32,
-26,
57,
0,
40,
3,
-56,
-45,
-28,
15,
-39,
57,
14,
52,
-29,
73,
44,
26,
53,
-41,
-16,
33,
-14,
-30,
-70,
25,
-30,
-102,
-37,
17,
-32,
-55,
49,
-54,
29,
-13,
12,
17,
9,
15,
-5,
14,
17,
55,
37,
-98,
-61,
25,
-35,
3,
19,
0,
-19,
42,
-10,
-45,
53,
30,
29,
-4,
-46,
-29,
-55,
-15,
-18,
44,
17,
20,
-14,
47,
37,
-57,
-37,
-60,
-8,
-25,
-10,
-13,
-27,
-47,
33,
-5,
-1,
-20,
-18,
6,
-56,
7,
32,
20,
32,
-15,
-26,
48,
-16,
13,
32,
28,
-2,
53,
71,
-48,
-65,
-15,
-19,
-15,
-19,
-56,
-14,
-11,
17,
-3,
-10,
-16,
26,
18,
19,
38,
-91,
1,
19,
31,
-25,
61,
-4,
9,
49,
-20,
-18,
-42,
47,
25,
9,
-7,
0,
-54,
3,
-25,
-34,
49,
-10,
-69,
8,
-38,
12,
40,
5,
-33,
-70,
-39,
83,
20,
16,
11,
-24,
2,
-17,
30,
8,
4,
75,
35,
0,
-3,
-43,
0,
-29,
-11,
-42,
34,
-47,
27,
20,
-45,
30,
-51,
16,
16,
11,
-71,
-16,
9,
58,
7,
-55,
22,
-36,
27,
0,
28,
77,
-18,
-10,
42,
-30,
15,
-2,
84,
-34,
-28,
70,
-54,
0,
16,
-8,
-25,
-34,
-66,
27,
10,
11,
34,
33,
-26,
73,
-2,
-9,
-1,
-3,
80,
68,
35,
-16,
22,
-15,
39,
-45,
51,
-8,
27,
-38,
-10,
-11,
21,
1,
22,
16,
-39,
20,
33,
32,
-27,
6,
30,
-27,
0,
50,
14,
24,
-55,
-20,
34,
7,
-6,
-67,
-48,
-24,
38,
8,
-70,
61,
83,
32,
-3,
-40,
29,
54,
-54,
-5,
70,
17,
45,
23,
8,
16,
31,
13,
-29,
82,
-29,
25,
7,
21,
1,
-18,
52,
-27,
47,
56,
1,
-8,
23,
-22,
10,
-63,
-24,
-35,
41,
-24,
36,
-16,
-74,
-44,
-16,
11,
-30,
52,
-22,
-3,
-19,
10,
2,
-21,
-13,
-16,
9,
-44,
64,
-31,
18,
-31,
-55,
-33,
6,
40,
-14,
-35,
-29,
-22,
-37,
56,
-85,
-18,
0,
14,
50,
23,
-11,
62,
52,
9,
7,
-77,
0,
33,
-20,
39,
-23,
-61,
38,
-71,
-86,
-15,
-40,
47,
-7,
-113,
43,
47,
-15,
-45,
-32,
-58,
37,
20,
7,
9,
-42,
59,
9,
-84,
-23,
43,
-7,
-24,
-33,
-37,
-13,
31,
35,
-29,
64,
-59,
-4,
35,
-12,
-13,
-14,
-24,
34,
-94
] |
MR. JUSTICE MORRIS
delivered the opinion of the court.
This is an original proceeding wherein the relator prays for a writ of mandate to compel the city council of the City of Great Falls to comply with the terms of an agreement between the city council and the Great Falls Housing Authority wherein the council agreed to zone or re-zone in such lots and blocks as should be purchased by the Housing Authority in the City of Great Falls and to vacate and close certain streets, avenues and alleys in such lots and blocks in accordance with such agreement.
The relator’s petition was filed here'February 6, 1940, and after due consideration an alternative writ of mandate was issued requiring the city council and certain members thereof to comply with such agreement or show cause before this court to the contrary on the 19th day of February, 1940. On the day set the parties appeared by counsel, and amici curiae were also heard, and after conference participated in by the several counsel and the court, it was found that vital facts involved in the controversy were in dispute, whereupon the court declined to proceed further in the matter until such facts had been determined. By mutual consent the matter was referred to the Honorable C. B. Elwell, District Judge of the Twelfth Judicial District, as referee, with authority to hear the evidence and make findings of fact in the premises, and return the same to this court. March 8 the referee’s findings of fact were received and filed, and on March 9 counsel for the various parties appeared and extended oral arguments were heard. Briefs were filed and the court has had the matter under consideration.
At the outset we think it well to repeat what this court has often said before: That the wisdom or sound public policy of an Act of the legislature does not concern this court, so long as its provisions are found to be within the limitations of the Constitution. It is merely our province to construe the law as we find it. The constitutionality of the Housing Authority Law has been determined by this court (Rutherford v. City of Great Falls, 107 Mont. 512, 86 Pac. (2d) 656), and is not questioned in this proceeding.
The findings of the referee appear to be well supported by the evidence and no serious objection is made by the parties to any of them. From our view of the merits of the controversy, much of the evidence adduced and rmost of the questions of law argued are immaterial.
Briefly summarized, the referee found that, pursuant to the provisions of section 5309.4 of the Housing Authorities. Law (Rev. Codes 1935), a petition was filed with the city clerk on or about March 21, 1938, petitioning the city council to direct the city clerk to give notice by publication of a hearing to determine whether there existed the necessity to establish a Housing Authority in Great Falls; the notice was given and the meeting was held April 4, 1938, at the Council Chambers, that being the date for a regular meeting of the council; the hearing was made a special order of business; those present were invited by the mayor to express their views as to the necessity of creating the Housing Authority; some expressed themselves in favor of such a project and some against it. After the discussion the council directed the matter be referred to the Ways and Means Committee of the council, which committee was instructed to take the matter under advisement and report back, and at a regular meeting of the eouneil April 11, 1938, such committee reported recommending that a committee of five persons be selected from certain associations and business concerns in the city to investigate the needs and conditions relating to the subject; such committee was appointed and gave published notice of a hearing to be held at the Junior High School Auditorium April 21, 1938, at which hearing evidence was received pertinent to the purpose of the meeting; the meeting was attended and participated in by a large number of residents and taxpayers of the city and evidence was received to the effect that there were a large number of unsafe and insanitary inhabited dwellings in the city; the committee by a report in writing subscribed by all five of its members submitted its report to the city council April 23, 1938, at which time the council considered the evidence submitted by the report, in addition to the evidence received at the meeting of April 4, recounted the former steps taken in the premises and adopted a resolution which in part recited “That unsanitary and unsafe dwellings exist” in the City of Great Falls, and “That there is a need of a Housing Authority as prescribed by Chapter 140 of the Montana Session Laws of 1935, Revised Codes 1935. That the mayor of said city is hereby notified to appoint five commissioners to act as said Housing Authority and to designate which of these commissioners are to serve the respective terms of one, two, three, four, and five years as provided by law.”
The referee’s report then presents this significant fact, ‘ ‘ That the said resolution was so adopted by the unanimous vote, on roll-call of all the then members of the city council, and the same was thereupon, and on said 9th day of May, 1938, signed by J. E. Swanson, a member of said city council, who was then and there the acting mayor of said city, acting as such in the absence of the defendant Julius J. Wuerthner, Mayor of said city; and at the same time the said resolution was duly attested by and signed by "W. P. Harrison, as City Clerk of said city; and that said resolution has never been rescinded or repealed and has ever since been, and now is, in effect.”
On or about May 25, 1938, the mayor appointed the five commissioners, who on June 16, 1938, presented to the Secretary of State of the State of Montana an application for incorporation of the Great Falls Housing Authority pursuant to the provisions of section 5309.4, Revised Codes, and on the same date the Secretary of State issued to such commissioners a certificate of incorporation, a copy of which is set out in the referee’s report and is followed by the findings: “That ever since said 16th day of June, 1938, the said Great Falls Housing Authority has been, and now is, a public body and a body corporate and politic, with perpetual succession.” Immediately after the incorporation of the Great Falls Authority, the city council appropriated $4,000 of city funds for expenses for the first year of the Authority; in August, 1938, the Great Falls Authority applied to the United States Housing Authority to have federal funds earmarked for the Great Falls project. An inspection was made by representatives of the United States Housing Authority of the local situation, and thereafter, in August, 1938, the United States Authority earmarked and set aside over $600,000 for the Great Falls project. In September, 1938, the city made a survey of the conditions of the city which the project was intended to alleviate. November 14, 1938, representatives of the United States Authority represented to the city council the necessity of a co-operation agreement between the city council and the Great Falls Authority, whereupon a motion was made to refer the proposal to the mayor, the city attorney and the judiciary committee of the city council. The mayor signed the co-operation agreement November 16, 1938. No meeting of the city council was held between the date the matter was referred to the mayor et al. with power to act and the time the co-operation agreement was actually signed by the mayor, but at a council meeting held December 5, 1938, the Judiciary Committee as shown by the minutes reported in these words:
“Judiciary Committee on Contract with Great Falls Housing Authority. The Judiciary Committee and City Attorney reported and recommended that the Mayor be authorized to enter into and sign the Cooperation Contract with the Great Falls Housing Authority.
“ (Signed) Ario, Jaap, Judiciary Committee.
“Murphy, City Attorney.
“On motion of Alderman Ario, duly seconded, the report of the committee was declared adopted (by unanimous vote.)”
The “by unanimous vote” clause was added to the minutes by the city clerk subsequent to the time the minutes were originally written up, and no other city officer appears to have had any part in making such addition to the minutes. This will be adverted to later under another heading.
The referee then refers to the ease of Rutherford v. City of Great Falls, 107 Mont. 512, 86 Pac. (2d) 656, filed in this court November 26, 1938, as an original proceeding, in which the constitutionality of the Housing Act and the proceedings taken up to that time by the Great Falls Housing Authority were passed upon. The housing acts were upheld as well as all things theretofore done by the local Authority, our decision being announced January 4, 1939. Following that decision the Great Falls Authority after negotiations with the United States Authority obtained the approval of the latter for a loan of $632,000, and the approval of the United States Authority was followed by the approval of the President of the United States on March 30, 1939, and thereupon the Great Falls Authority entered into a loan contract with the United States Authority, and in such loan contract the Great Falls Authority. represented to the United States Authority that in its co-operation agreement with the city of Great Falls it was provided that the city council would comply with requests for the vacating of streets and alleys and zoning and re-zoning of the lands incorporated in the Great Falls project when requested to do so. July 7, 1939, the United States Authority advanced to the Great Falls Authority, $48,-000, a part of which was to be used to purchase the eight blocks selected for the project, and the United States Authority further agreed to advance $400,000 on “advance notes,” such notes to be later retired when bonds were ready for delivery. This ad vanee was to be used for the purpose of commencing building operations. July 28, 1939, the Great Falls Authority purchased and acquired clear title to the eight blocks selected. Plans were furnished by an architect for the buildings to be erected on the project and, after receiving proposals from contractors, the firm of Lease & Leigland being the lowest bidder, their proposal of $551,790 was on December 15, 1939, recommended by the Great Falls Authority to the United States Authority for acceptance, and the latter part of that month the United States Authority approved the Lease & Leigland' bid and authorized the local Authority to enter into a contract with Lease & Leigland, provided the city council would carry out the vacating of streets and alleys and the zoning and re-zoning theretofore agreed to be done. On May 22, 1939, before the eight blocks were purchased, before the plans and specifications were prepared, and before advertising for bids, a resolution was presented to the city council providing for the vacation of certain streets and alleys and referred to the Housing Committee of the council, a new city council having in the meantime come into power. Consideration of the resolution was postponed from May 31 to June 12, 1939, again postponed until June 19, again to June 26, and again until July 17, 1939, at which time a motion that it do not pass was adopted.
January 2, 1940, the Great Falls Housing Authority requested in writing that, pursuant to the contract of November 16, 1938, the city council vacate certain streets and alleys, and in a separate request of the same tenor requested that the eight blocks purchased for the Great Falls project be zoned and re-zoned. The council refused to grant either request.
The referee then recounts facts to the effect that four councilmen have at all times voted in favor of granting the requests and six have opposed such requests, and that the mayor has at all times favored granting the requests. That at the election in April, 1939, four of the aldermen opposing the requests were elected and took office the first Monday of May following. Certain ordinances are then copied in the referee’s report upon which the opposing councilmen obviously base their opposition to the Housing project.
It will be noted that in so far as the referee’s findings of fact show, no question was raised at the hearing before him as to the regularity of the proceedings of the city council in the adoption of the resolution of April 23, 1938, following the report of the Ways and Means Committee of the council, when the council recited in the resolution then adopted that there was need for a Housing Authority in Great Falls, and then notified the mayor to appoint five commissioners to act as said Housing Authority, specified the term for which each should be appointed, and that such resolution was, on roll call, adopted by a unanimous vote, signed by the acting mayor and the city clerk, that thereafter the mayor appointed such commissioners and they proceeded to have the Authority thus authorized incorporated, and that such resolution of the council has not been rescinded or repealed and is now in effect.
Respondents center their attack on the record of the proceedings at the council meeting at which the city officials were authorized to enter into a contract with the Great Falls Authority by which the city obligated the council to vacate streets and alleys and zone and re-zone the lands selected for the Housing project.
The relator grounds its contentions in support of the legal status of the Great Falls Housing Authority on the regularity of the city council’s acts in creating the Authority, and thereafter upon the provisions of the Housing Authorities Law, Chapter 404 of the Revised Codes, to the exclusion of the general municipal statutes. On the other hand, the respondents attack the legal status of the Great Falls Authority, and contend that all acts of the city council relative thereto must be governed by the statutes relating to municipal corporations. It is our opinion that the relator is correct, and the respondents in error.
After the city officials of Great Falls, proceeding under the provisions of section 5309.4 of the Housing Law, determined, in the exercise of their discretion to empower the mayor to appoint commissioners to proceed with the incorporation of the Great Falls Housing Authority, appropriated money for overhead expenses for the first year, and did other acts of similar import, the general municipal statutes ceased to have any further application in the premises and all things thereafter done and performed in relation to the Great Falls Housing Authority passed under the exclusive control of the provisions of the Housing Authorities Law, sections 5309.1 to and including 5309.36 of the Revised Codes. If that were not the intention of the legislature in enacting the Housing Authorities Law, we can conceive of no reason why it was necessary to authorize the incorporation of an independent corporation to carry the purpose of the Act into effect, nor why the federal Act required a separate corporation for such purposes. The city officials, it appears to us, could have been authorized to act in the premises. The federal government through the United States Housing Authority furnishes the money, is responsible for the bonds, for the success of the project, from which the revenues to pay the bonds must be derived. The official machinery of the municipality was merely employed to determine the necessity for the creation of the Authority and that having been done as the free act of the city council, it had no further discretionary function to perform in the premises.
The Housing Authorities Law, as it is designated in the Revised Codes, is a special Act, complete in itself, enacted for a special purpose, its operation confined to the particular project, and any fears that the Act can be abused to vacate Central Avenue or any other street, avenue or alley in the city are groundless. The commissioners acting for the Great Falls Housing Authority, after the city officials exercised their discretion in authorizing its creation, must confine their activities to looking after the management of the project and obtaining the results for which it was created. It is under the same legislative control, except as otherwise provided by its contract obligations with the United States Housing Authority, that the city is itself.
The Housing Authorities Law, being a special Act, must be construed without regard for the general municipal statutes which relate to purely municipal affairs. (State ex rel. Special Road Dist. v. Mills, 81 Mont. 86, 98, 261 Pac. 885; In re Wilson’s Estate, 102 Mont. 178, 56 Pac. (2d) 733, 105 A. L. R. 367, and cases cited.)
In construing the Act it is necessary to keep these facts in view: A municipality in this state is a state agency, created by the legislature for the convenience of administering local government. This court said in City of Helena v. Helena Light & Ry. Co., 63 Mont. 108, 207 Pac. 337, 339: “A city is but a political subdivision of the state for governmental purposes, owing its very existence to the legislative will, and capable of exercising only such powers as are granted, either directly or by necessary implication. * * * The streets of a city are public highways (section 1612, Revised Codes 1921), and though the city is charged with the duty of keeping them in repair, and the cost of maintenance is imposed upon the city, nevertheless jurisdiction over them is primarily in the state, and the city acts with respect to them subject to the general laws of the state.” (See, also, City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258, 4 Ann. Cas. 235; State v. Stark, 100 Mont. 365, 52 Pac. (2d) 890; State ex rel. Gebhardt v. City Council, 102 Mont. 27, 55 Pac. (2d) 671.)
“A city of this state is a creature of statute. Independently of legislation it cannot exist — cannot exercise any functions whatever. In the absence of constitutional limitations, the Legislature would be free to prescribe for a city such powers and privileges as it deemed best.” (McClintock v. City of Great Falls, 53 Mont. 221, 163 Pac. 99, 101, see, also, Wibaux Imp. Co. v. Breitenfeldt, 67 Mont. 206, 215 Pac. 222; State ex rel. City of Butte v. Police Court, 65 Mont. 94, 210 Pac. 1059; Milligan v. City of Miles City, 51 Mont. 374, 153 Pac. 276, L. R. A. 1916C, 395.) And unless a power is vested in the municipality by express law, or by necessary implication therefrom, the presumption is against the exercise by the city of any such power. (State ex rel. City of Billings v. Billings Gas Co., 55 Mont. 102, 173 Pac. 799; Sharkey v. City of Butte, 52 Mont. 16, 155 Pac. 266; Shapard v. City of Missoula, 49 Mont. 269, 141 Pac. 544.)
The city council of the city of Great Falls, since it regularly authorized the creation of the Great Falls Housing Authority, must comply with the provisions of the Act in so far as their co-operation is required. This is in effect the mandate the legislature addressed to all cities of the state which elect to create a Housing Authority within their jurisdiction. We said in State ex rel. Helena Housing Authority v. City Council of City of Helena, 108 Mont. 347, 90 Pac. (2d) 514, 518: “Holding, as we must, that the matter of carrying out the plan contemplated by sections 5309.1 to 5309.36, supra, constitutes a public or governmental function, rather than a proprietary or private one, the state’s right to compel cities to make expenditures therefor cannot be denied. (State ex rel. Gebhardt v. City Council, supra.) It is this difference that distinguishes the case from that of State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 Pac. (2d) 624, 100 A. L. R. 581, and State ex rel. Kern v. Arnold, 100 Mont. 346, 49 Pac. (2d) 976, 100 A. L. R. 1071. This conclusion is especially true where the city is given the right in the first instance to pass upon the question of the existence or nonexistence of the necessity for the housing project, and has found that such necessity exists and has, by its own affirmative act, created the Authority. Under such circumstances it must follow that the city has given its consent to assume the burdens of the Act as well as to receive benefits therefrom. The case is, therefore, distinguishable from that of State ex rel. Gerry v. Edwards, 42 Mont. 135, 111 Pac. 734, 32 L. R. A. (n. s.) 1078, Ann. Cas. 1912A, 1063.”
We think it well to say that after proceeding with the creation of the Authority, as above mentioned under section 5309.4, whether the contract involved here be found to have been legally executed or not, the obligation on the city council to make a new contract, the terms of which have already been agreed to, is no longer a discretionary matter. Drafting and executing the contract is merely the completion of the general obligation the city assumed when it authorized the creation of the Great Falls Housing Authority and its execution was a mere ministerial duty. The refusal of the city council at the meeting of July 17, 1939, to comply with the requests of the Authority to vacate the streets and re-zone the location was a useless act. The acts of the city council of a contractual nature cannot be repudiated by any subsequent council, whether the membership of the council be the same or not. When the council authorized the creation of the Great Falls Authority it assumed all the obligations involved essential to a perfected project.
In State ex rel. State Sav. Bank v. Barret, 25 Mont. 112, 119, 63 Pac. 1030, 1032, in construing section 11 of Article III of the Constitution of Montana, this court said: “The legislative assembly can no more impair the obligation of such a contract than it can the obligation of a contract made between individual persons. While a change in the form of obtaining redress may be made, provided a substantial remedy is given or remains, the obligation of a contract depends nevertheless upon its terms, and the means which the law in existence at the time it was entered into afforded for its enforcement. A statute which changes the terms of an agreement by imposing new conditions, or dispensing with those expressed or implied, is a law which impairs the obligation of a contract. ’ ’
In regard to the subsequent addition to the minutes of the meeting of the city council of December 5, 1938, such changes ordinarily cannot be made without the authority of the council, either expressly or by implication. The attack on this irregularity is made admittedly on the ground that it was made in violation of the statutory provisions relating to the proceedings of a municipal corporation. It was made after the city council elected to come under the provisions of the Housing Authorities Law, and it immediately becomes apparent that the following provisions of that law, instead of the municipal statutes, apply: Section 5309.27 provides: “That insofar as the provisions of this Act are inconsistent with the provisions of any other law, the provisions of this Act shall be controlling.” And again in section 5309.34 we find the following provision: “The powers conferred by this Act shall be in addition and supplemental to the powers conferred by any other law.” In section 5309.30 we find this provision: “Any law of statute to the contrary notwithstanding, any gift, grant, sale, conveyance, lease or agreement provided for in this section may be made by the state, its subdivisions and agencies, and any county, city, or municipality of the state without appraisal, public notice, advertisement or public bidding.” These statutes are in direct conflict with some of the provisions of those relating to municipalities, and, of course, were intended to supersede such statutes in Housing Authority matters. What is the meaning of these statutes unless it is intended that anything authorized in the Housing Authorities Law shall be proceeded with independent of municipal Acts relating to purely city affairs.
Next we are called upon to determine whether section 5309.13 required strict conformance with general laws or only a conformance with general laws so far as they do not hinder the carrying out of the Act as intended by the legislature. Considered in connection with section 5309.27, section 5309.13 can only mean that when the general laws are referred to and required to be generally applied, they shall be applied only when such application will not defeat the purpose of the special Act.
Again, it is urged that if the city alderman by mandamus can be compelled to enact an ordinance to re-zone the city and vacate the streets, the right of referendum will be denied the people of Great Falls. This right of referendum is contained in section 5061, Revised Codes 1935, and provides that within 30 days after the passage of an ordinance or resolution such ordinance or resolution may be, on petition of qualified electors, submitted to a vote of such electors. If the electors of the city desired that the resolution of the council creating the Authority be referred, it was necessary that such action be taken within 30 days after its passage. To answer the respondents’ argument on this particular point, we refer to section 5060, Revised Codes, which is the main section dealing with the right of referendum. This section specifically provides that an ordinance or resolution in the nature of an emergency measure is excepted from the provisions of the Referendum Act.
It cannot be doubted that the ordinance or resolution sought to be passed was one of emergency character required for the purpose of carrying out the emergency provisions of a legislative Act. This particular proposed re-zoning ordinance stems from the original resolution providing for the creation of the Authority and the execution of the contract which were held to be of emergent character by this court in the case of Rutherford v. City of Great Falls, supra. If the original purpose was one of emergency, then any steps which were necessary to the final realization must themselves be emergent. For this reason, together with the fact that the Housing Authority Act is also one of emergency, we hold the contention that the right of referendum would be abridged has no force in this case.
Another question arises as to whether the writ of mandamus will lie to compel the city council to take the necessary steps to vacate and re-zone the plot purchased by the Housing Authority. We have heretofore said in this opinion that when the city council regularly authorized the creation of the Great Falls Housing Authority, any act or thing the council was thereafter required to do in order to bring the Housing project to completion was purely a ministerial act imposed upon the city council, a state agency of the state government. Such being the case, mandamus will lie. This conclusion follows a long line of decisions by this court.
We are of the opinion that the city council may not now be heard, under the rule of estoppel, to question the validity, on any ground, of the contract which it attacks. After both the city and the federal government expended large sums of money and incurred obligations of vast magnitude, the council's opposition to this project comes too late. The question of estoppel, however, need not be passed upon here. We rest our conclusions upon the ground that the Housing Authorities Law is a special Act and supersedes the purely municipal statutes upon which the respondents depend, and on the further ground that the legislature is imposing the duties that are imposed upon the city council by the Housing Act is merely calling upon one of its agents, over which it has practically complete control, to aid in perfecting a state project.
Rehearing denied April 2, 1940.
This opinion is not intended and is not to be construed to impair the local self-government or home rule powers of municipal corporations, as defined in State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 Pac. (2d) 624, 100 A. L. R. 581, and in State ex rel. Gebhardt v. City Council of Helena, 102 Mont. 27, 55 Pac. (2d) 671.
Under section 9858, Revised Codes, relator is entitled to its costs, but it appearing that the respondents defended the proceeding in good faith, the costs will be taxed against the city. The record containing no proof of the attorneys’ fees incurred by relator, all damage resulting from respondents’ act must be deemed to have been waived. (State ex rel. Golden Valley County v. District Court, 75 Mont. 122, 242 Pac. 421.)
Let the writ issue.
Mr. Chief Justice Johnson and Associate Justices Angst-man, Erickson and Arnold concur.
|
[
18,
-9,
12,
-12,
19,
-47,
52,
71,
6,
5,
-16,
29,
19,
-28,
42,
15,
-23,
-14,
13,
46,
-66,
-18,
-36,
17,
32,
-3,
2,
-51,
-55,
23,
25,
-19,
-16,
34,
-50,
29,
2,
-29,
32,
-4,
47,
31,
-24,
-22,
28,
13,
39,
25,
13,
-14,
-8,
-33,
12,
28,
-30,
15,
-39,
-13,
34,
71,
25,
-25,
-4,
28,
-2,
-81,
20,
46,
46,
-7,
59,
-22,
0,
-38,
34,
26,
34,
4,
-47,
20,
-49,
-38,
25,
-47,
-46,
4,
2,
-22,
19,
52,
57,
-10,
28,
33,
-8,
31,
21,
-35,
-4,
-4,
-56,
-50,
50,
63,
14,
-11,
-35,
0,
90,
8,
-42,
25,
-18,
-25,
27,
3,
7,
50,
-8,
-20,
-23,
29,
-50,
-20,
-66,
-26,
2,
-61,
-33,
-9,
-42,
12,
61,
16,
-17,
7,
20,
14,
14,
50,
1,
28,
16,
-31,
-58,
0,
58,
1,
-8,
-10,
9,
-9,
-19,
-2,
6,
-91,
-7,
-6,
39,
44,
23,
11,
5,
-3,
-25,
13,
-39,
61,
32,
-25,
-13,
10,
-22,
16,
52,
-13,
-38,
6,
9,
-15,
-2,
47,
9,
-37,
45,
5,
0,
0,
10,
-47,
32,
-76,
-55,
25,
-29,
17,
-4,
31,
-1,
-60,
-1,
58,
-9,
-12,
-19,
27,
0,
-9,
26,
83,
34,
-4,
-86,
6,
-5,
14,
-13,
26,
26,
9,
-53,
1,
-28,
17,
2,
-18,
36,
49,
-23,
-43,
-38,
18,
-9,
51,
50,
59,
-18,
29,
-49,
6,
-43,
31,
-6,
16,
-15,
63,
0,
-23,
41,
-34,
-7,
16,
33,
29,
24,
6,
7,
6,
25,
-34,
40,
13,
-7,
-40,
-16,
-15,
-7,
-33,
47,
51,
14,
90,
-12,
30,
-22,
-24,
26,
-50,
-21,
-8,
-41,
-57,
-9,
26,
63,
4,
43,
26,
-42,
-22,
-9,
13,
10,
0,
-18,
-33,
28,
-38,
36,
19,
-14,
39,
9,
13,
-2,
-10,
-44,
19,
3,
-10,
62,
-18,
-64,
-5,
-20,
8,
19,
17,
46,
3,
68,
3,
29,
16,
-23,
-8,
34,
16,
-46,
10,
44,
-16,
44,
23,
47,
7,
25,
-6,
-25,
-42,
33,
16,
-23,
-14,
-20,
-6,
-6,
0,
-37,
47,
-24,
40,
-32,
26,
-43,
9,
-15,
8,
-21,
-11,
29,
64,
17,
23,
-16,
-24,
-17,
-42,
27,
19,
16,
-7,
-9,
1,
-12,
10,
36,
-10,
-41,
42,
22,
-1,
-7,
8,
10,
47,
32,
-39,
10,
-76,
-29,
9,
-57,
13,
3,
-4,
28,
-19,
-11,
-27,
15,
22,
0,
5,
-3,
-8,
12,
-15,
11,
19,
-76,
-9,
-23,
-82,
9,
5,
-63,
24,
22,
-3,
-33,
17,
54,
33,
28,
-34,
64,
-9,
-20,
92,
-43,
8,
-45,
35,
26,
-47,
22,
-45,
-23,
-15,
-17,
29,
-14,
21,
-22,
-67,
-8,
7,
1,
-54,
30,
-27,
-4,
-13,
-13,
9,
17,
-56,
60,
-36,
11,
-9,
-37,
-7,
23,
56,
-22,
-76,
-17,
5,
-16,
14,
-6,
-29,
21,
26,
-64,
22,
-33,
-2,
-11,
-22,
-44,
9,
0,
10,
-37,
30,
3,
27,
51,
12,
6,
-10,
-35,
13,
44,
-17,
20,
-29,
10,
68,
-33,
13,
-21,
46,
-32,
9,
-1,
65,
5,
-75,
13,
46,
-24,
36,
51,
-41,
-16,
29,
62,
11,
-35,
-52,
16,
24,
58,
12,
31,
-20,
13,
24,
7,
-27,
-15,
-40,
-22,
64,
35,
-59,
33,
-30,
14,
24,
-52,
39,
-18,
20,
29,
8,
-16,
7,
-5,
22,
25,
-24,
-36,
-24,
-11,
18,
21,
-4,
21,
2,
-1,
2,
-33,
-7,
-22,
-11,
-12,
7,
-71,
-6,
-27,
-35,
36,
-18,
-1,
5,
-21,
12,
-13,
21,
17,
31,
24,
51,
-62,
-7,
-51,
-6,
-41,
41,
6,
-41,
-3,
51,
-70,
2,
-52,
22,
75,
9,
-19,
5,
-5,
-72,
2,
-34,
3,
-34,
-16,
59,
-34,
35,
-12,
-25,
37,
-1,
-17,
16,
-3,
-19,
5,
-65,
-18,
29,
-9,
13,
-38,
1,
28,
12,
9,
-6,
27,
36,
52,
-21,
-7,
20,
7,
-22,
-36,
20,
12,
49,
20,
31,
30,
46,
21,
-20,
18,
1,
55,
-51,
-5,
-3,
68,
-3,
31,
35,
-30,
-9,
1,
0,
-9,
5,
-27,
-7,
35,
51,
25,
-50,
28,
-6,
47,
-57,
-15,
17,
-44,
-6,
19,
-16,
-9,
1,
-30,
71,
37,
7,
-12,
16,
-23,
17,
0,
-14,
2,
57,
-18,
-55,
30,
-16,
-61,
4,
0,
38,
-19,
-20,
-15,
-74,
10,
25,
-54,
19,
-8,
-9,
40,
-8,
-9,
3,
-1,
-30,
16,
-45,
-10,
-2,
-45,
21,
-13,
-18,
-13,
6,
-30,
-37,
-43,
70,
6,
-75,
5,
39,
-12,
24,
-24,
33,
51,
-40,
-67,
28,
11,
-50,
9,
16,
0,
-10,
-25,
-10,
-6,
24,
52,
-52,
-5,
44,
6,
-76,
-8,
-14,
-18,
0,
44,
35,
-56,
-21,
-40,
-16,
-50,
19,
30,
-13,
-78,
-25,
-52,
-67,
-74,
-30,
51,
13,
10,
56,
-26,
28,
29,
-20,
-7,
54,
-32,
-29,
-33,
65,
-9,
29,
-8,
-5,
27,
30,
-54,
33,
2,
25,
-49,
-14,
-16,
-50,
-2,
-53,
17,
17,
30,
-14,
13,
-58,
-48,
0,
29,
10,
-5,
20,
-4,
1,
26,
30,
-55,
51,
-13,
-70,
6,
40,
31,
-26,
-39,
2,
-9,
23,
4,
10,
-13,
21,
2,
12,
-3,
42,
9,
5,
21,
3,
5,
-30,
51,
-16,
31,
24,
8,
-6,
1,
14,
-34,
-87,
33,
34,
8,
-12,
28,
-25,
5,
-69,
-27,
41,
33,
27,
-15,
25,
-4,
-30,
-23,
62,
5,
10,
22,
31,
34,
-29,
-27,
30,
-11,
19,
-22,
-20,
-37,
-11,
-36,
3,
21,
10,
-55,
-14,
-10,
8,
19,
-37,
-36,
-6,
-5,
-70,
1,
-26,
-37,
-79,
13,
9,
47,
37,
-50,
13,
-19,
1,
-43,
0,
-6,
26,
-50,
37,
22,
8,
-15,
17,
31,
3,
1,
-34,
-14,
-50,
27,
18,
-5,
-12,
4,
-25,
-16,
-64,
26,
17,
29,
47,
2,
27,
-32,
43,
21,
-63,
1,
6,
26,
-42,
-40,
-47,
43,
-36,
24,
-22,
-38,
14,
28,
69,
-31,
3,
-42,
-12,
-3,
-10,
85,
1,
1,
43,
7,
39,
0,
-10,
-59,
-8,
9,
10,
4,
-17,
7,
-32,
-9,
-35,
31,
-9,
-6,
5,
-52,
-11,
13,
-14,
-17,
-17,
19,
-34,
-32,
45,
5,
38,
14,
-2,
-8,
37,
-9,
-42,
16,
-30,
-28,
-32
] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an action for conversion of the proceeds obtained from the sale of a cow. Plaintiff alleges that he purchased the animal in question from one Freeman, the lawful owner thereof, on July 17, 1938, and obtained Freeman’s bill of sale therefor. The cow was inspected at Bozeman and subsequently shipped to Billings where it was again inspected and there sold. The proceeds from the sale were impounded by a state livestock inspector, one of the defendants in this action. He turned the proceeds over to the Montana Livestock Commission to be held pending determination of the ownership of the cow. Demand was made immediately for the money by plaintiff, and refused by the defendant commission. A few days thereafter suit was instituted in the justice court to recover the proceeds.
Defendants answered setting up as a defense to the alleged conversion, that the seizure was made in the performance of official duty; denied on information and belief that Freeman was the lawful owner of the cow; alleged that defendant inspector at Billings discovered that the cow at the time of the sale bore an unvented three-circle brand which was the duly recorded brand of one A. A. Anderson as of the date of July 23, 1936; that at the time of the sale there was on file in the office of the secretary of the Montana Livestock Commission a notice of chattel mortgage and notice of renewal thereof upon the cattle of A. A. Anderson bearing the described brand, the mortgage being filed August 12, 1937, and the renewal March 17, 1938; that plaintiff at the time of sale failed, refused and neglected to furnish the defendants or the stock inspector at Bozeman, any evidence or proof of plaintiff’s ownership other than the bill of sale from Freeman; that no bill of sale from Anderson, record owner of the brand appearing on the cow, was ever presented to defendants or anyone, and no satisfaction or release of mortgage on the cattle bearing the Anderson brand was ever filed with the recorder of marks and brands or presented to defendants; that since no bill of sale from Anderson, prima facie owner of the cow, was produced nor any other evidence of plaintiff’s ownership other than the Freeman bill of sale, and the brand being an unvented one, defendant Songer had reason to believe, and did believe, that the cow had been stolen, and therefore seized the proceeds of the sale, as he was authorized by statute to do; and that the proceeds were turned over to the commission until it could be determined whether the cow had been stolen, or until plaintiff should by satisfactory evidence establish his ownership of the cow or his legal right to the proceeds of the sale.
The issues were determined in favor of defendants in the justice court. Plaintiff appealed to the district court where the issues were again found in defendants’ favor. The matter is here on appeal from the judgment of the district court. The only question involved is whether the impounding of the proceeds obtained from the sale of the cow constituted a conversion by the livestock commission.
At the outset it must be said that our review has been necessarily limited because of the absence of a bill of exceptions incorporating the evidence. In such ease, the well-established rule is that this court cannot consider anything aside from that part of the judgment roll that is before it. (Sec. 9390, Rev. Codes; Bohon v. Bitter Root Sales Co., 82 Mont. 260, 266 Pac. 645, and cases therein cited.)
Many assignments of error are directed to the lower court’s findings of fact and conclusions of law. It follows from the rule just noted that we are precluded from disturbing those findings in the absence of the evidence from the record. (Thelen v. Vogel, 86 Mont. 33, 281 Pac. 753, and Luebben v. Metlen, ante, p. 350).
In view of the condition of the record, it will only be necessary in deciding whether defendants are guilty of conversion to determine the following question: Do the answer and facts as found support the conclusions of law and judgment of the court? If this question can be answered affirmatively, then the presumption follows that the evidence was sufficient to warrant the result reached. (Thelen v. Vogel, supra; Bond Lumber Co. v. Timmons, 82 Mont. 497, 267 Pac. 802.)
This being an action for conversion, the elements of proof required to sustain it are: (1) Plaintiff’s ownership and right of possession of the chattel involved; (2) conversion thereof by the defendants; and (3) resulting damages. (Klind v. Valley County Bank of Hinsdale, 69 Mont. 386, 222 Pac. 439.)
The findings of fact of the trial court embracing the issues framed by the complaint and answer disclose that plaintiff failed to establish either elements (1) or (2). Those findings are substantially in accord with the statement of facts heretofore set out, particularly that satisfactory proof of ownership of the cow was not supplied by plaintiff nor his legal right to the proceeds of the sale established. Failure of proof as to this element was fatal to the action. (See Guthrie v. Holloran, 90 Mont. 373, 3 Pac. (2d) 406.)
However, aside from this lack of proof or ownership, the court found in accordance with defendants’ answer, and presumably their proof that the inspector had reason to believe that the cow was stolen and therefore followed the statutory duty imposed upon him of impounding the proceeds pending determination of ownership of the cow or right to the proceeds. (Compare Schoenborn v. Williams, 83 Mont. 477, 272 Pac. 992.) Surely the taking of such action could not be a sustainable basis for wrongful conversion or detention of proceeds in view of the circumstances here appearing which called for the exercise of the statutory duties imposed upon the defendants. Defendants came into possession of the proceeds lawfully. It seems impossible to us that, under the statute, the withholding of them from plaintiff could ever amount to a conversion until such time, at least, as plaintiff submits satisfactory proof of his ownership of the cow or his legal right to the proceeds of the sale. After such showing the proceeds should be paid to him as contemplated by section 3327.2, Revised Codes.
But plaintiff contends that there were not sufficient facts in the first place to justify the inspector in suspecting that the cow was a stolen animal, and that the bill of sale from Freeman to plaintiff was sufficient proof of ownership to entitle him to the proceeds of the sale. With this we cannot agree. Section 3327.1 provides in part: “All state stock inspectors * * # shall * # * possess the further authority to inspect and seize * * * any livestock or the proceeds thereof, which said inspector may have reason to believe is stolen, or upon which brands have been altered or obliterated, or which does not conform to the description contained on the tally sheet furnished by the shipper thereof, or to the description contained in any certificate of inspection issued before shipment or removal of said livestock.”
Plaintiff urges that this section forecloses an inspector from suspecting that livestock has been stolen unless one or more of the conditions of the statute above italicized appear. The plain wording of the section does not warrant any such restricted interpretation. If the construction plaintiff contends for were adopted we would be able to see no end to which designing individuals might not go in successfully disposing of the livestock of others.
Section 3304, Revised Codes, further evidences the fallacy of the construction contended for by plaintiff. It provides as follows: “The person, firm, or corporation in whose name any mark or brand is of record, as in this Act provided, is entitled to the right to the exclusive use of such mark or brand on the species of animal and in the position designated in such record, and a copy of such record certified by the general recorder of marks and brands shall be prima-faeie evidence of such right; and such certificate shall likewise be prima-facie evidence that the person, firm, or corporation entitled to use such mark or brand is the owner of all animals on which the same appears in the position and on the species of animal stated in such certificate. ” Such provision would be without protective effect if plaintiff’s analysis of a stock inspector’s rights and duties were correct.
Plaintiff, from what appears in the record before us, has never yet overcome the prima facie proof of ownership that rests in the record owner of the recorded brand. Under section 3327.1, supra, it would seem to us that it is the duty of the seller of livestock bearing someone else’s brand to furnish whatever proof is necessary to clear the same for sale. Moreover, under the circumstances of this ease, we think the livestock inspector who had a record of the marks and brands before him, would have been derelict in his duty had he not proceeded exactly as he did.
The case of State v. DeWolfe, 29 Mont. 415, 74 Pac. 1084, cited by plaintiff, is without controlling effect here on the question of ownership of the cow bearing the brand of one other than the shipper, because section 3304, supra, has been enacted since that decision, and now the recorded brand establishes prima facie proof of ownership of the animals on which such brand appears. Of course, the prima facie evidence of ownership can be overcome by satisfactory evidence of transfer or relinquishment of a particular animal. As a matter of fact, section 3300, Revised Codes, furnishes one of the best ways by which the prima facie case is rebutted. It relates to the venting of brands and provides in part as follows: “ * * * and the venting of said original brand shall be prima-facie evidence of sale or transfer of said animal or animals so vented.” The brand in the present case was not vented.
As to the charge made by plaintiff that the inspector had nothing upon which to have reason to believe that the cow was stolen other than the mortgage record, and in that respect was acting as a collector of mortgages contrary to section 3308.5, Revised Codes, we cannot agree. As heretofore pointed out, all of the circumstances of the case presented a prima facie ease as to ownership against plaintiff. The additional fact that there was on file, of recent date, a notice of chattel mortgage and notice of renewal upon the cattle of A. A. Anderson bearing the brand here involved, was certainly not a favorable circumstance to plaintiff’s claim of ownership. Especially so where there was neither satisfaction nor release of the mortgage, and no other adequate showing made to rebut the prima facie ease of ownership in Anderson.
We conclude that the answer of the defendants stated a good defense to the charge of conversion. It is supported by the facts found by the trial court and the conclusions of law reached are justified.
The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur.
|
[
35,
21,
17,
25,
34,
-54,
36,
22,
-10,
59,
0,
6,
3,
28,
2,
27,
13,
-29,
7,
18,
32,
-57,
-88,
-6,
8,
-10,
-15,
-60,
-41,
22,
-25,
0,
26,
-53,
5,
29,
-14,
37,
0,
3,
7,
22,
8,
32,
-8,
28,
5,
-32,
20,
0,
30,
-75,
32,
-8,
0,
-49,
3,
14,
-63,
48,
53,
-23,
69,
39,
40,
-34,
-45,
0,
-30,
9,
48,
12,
-34,
-31,
32,
-54,
5,
-26,
-15,
-2,
-17,
-24,
80,
-7,
8,
26,
-10,
-34,
-13,
-19,
-33,
-4,
-31,
-18,
18,
-14,
12,
4,
-36,
0,
-4,
-80,
-41,
18,
25,
-4,
-86,
37,
18,
28,
24,
-14,
1,
-4,
18,
13,
-59,
57,
-10,
-44,
-20,
56,
-8,
33,
-33,
0,
-47,
56,
57,
3,
-35,
-15,
-20,
30,
0,
9,
-8,
-68,
-26,
-15,
18,
49,
-35,
-7,
4,
22,
-15,
6,
16,
-12,
-45,
12,
65,
30,
19,
-58,
-16,
37,
-12,
-20,
-10,
-26,
-26,
8,
27,
31,
8,
-25,
-20,
-32,
1,
21,
-47,
-24,
30,
49,
-19,
-1,
-25,
-2,
0,
-25,
-15,
8,
-36,
-6,
20,
19,
10,
23,
-6,
-36,
13,
-47,
-2,
-13,
-6,
-3,
1,
33,
20,
47,
-35,
36,
14,
1,
20,
-10,
26,
-10,
-56,
9,
-2,
-5,
-49,
-7,
-37,
-6,
-6,
-26,
19,
-8,
-15,
42,
1,
-59,
87,
16,
2,
-27,
-37,
30,
35,
-19,
4,
-32,
22,
1,
-37,
8,
-42,
-52,
-13,
-53,
11,
2,
-20,
-17,
46,
-1,
0,
-55,
-10,
71,
14,
0,
12,
10,
-27,
-22,
13,
-13,
56,
59,
4,
-49,
-54,
-33,
-19,
15,
-18,
0,
55,
-12,
-57,
-35,
-23,
-28,
18,
-1,
36,
-78,
-9,
9,
1,
15,
17,
23,
-61,
-44,
35,
13,
21,
-75,
9,
23,
-49,
-47,
32,
0,
-34,
38,
-22,
-22,
19,
-4,
-50,
-56,
17,
-38,
-29,
-24,
-14,
-34,
-18,
-23,
-4,
39,
-9,
-12,
28,
20,
25,
41,
-2,
-19,
1,
-14,
12,
28,
22,
-6,
-66,
30,
-22,
-19,
61,
6,
-11,
19,
44,
4,
19,
41,
-57,
13,
0,
41,
-8,
13,
-40,
-7,
-19,
45,
67,
-3,
-8,
42,
-21,
-2,
7,
-11,
10,
-3,
-14,
20,
-35,
-33,
-22,
-19,
-14,
26,
37,
35,
2,
44,
-1,
-13,
-16,
-28,
33,
-18,
-9,
-10,
2,
3,
33,
-9,
-58,
-11,
-14,
-9,
-4,
86,
26,
-25,
-1,
-68,
-15,
-24,
0,
27,
32,
-38,
-28,
-6,
63,
-30,
-30,
12,
8,
-27,
-1,
-18,
23,
17,
0,
-16,
-11,
-2,
13,
15,
44,
-25,
71,
-19,
68,
-11,
-47,
43,
-11,
34,
-25,
28,
50,
-43,
-20,
65,
11,
1,
35,
45,
-63,
39,
-20,
16,
5,
12,
33,
26,
65,
26,
-27,
9,
-32,
61,
36,
-26,
-21,
-25,
0,
-10,
40,
-68,
17,
-27,
90,
-24,
22,
31,
34,
7,
30,
-10,
4,
-1,
-9,
-6,
0,
-9,
-22,
-19,
2,
2,
-7,
-14,
-47,
-23,
-10,
35,
43,
38,
13,
28,
-30,
1,
34,
-7,
65,
-10,
-50,
-21,
10,
4,
-22,
1,
36,
-44,
14,
16,
5,
-27,
15,
-16,
31,
3,
20,
56,
-25,
46,
-8,
8,
-36,
0,
21,
2,
78,
-10,
33,
-45,
-19,
4,
-47,
-14,
-8,
-20,
57,
20,
21,
-59,
-20,
-76,
44,
-20,
-17,
-4,
17,
-29,
8,
-13,
55,
-19,
43,
13,
26,
21,
-26,
22,
-78,
31,
12,
33,
-46,
3,
57,
-47,
-24,
-17,
16,
41,
13,
9,
36,
3,
43,
-16,
-38,
-17,
-19,
13,
27,
10,
-7,
0,
-39,
18,
52,
-8,
-36,
-12,
25,
-12,
6,
20,
-36,
18,
11,
-2,
-64,
21,
-36,
-24,
-33,
33,
10,
-15,
-55,
41,
26,
10,
-15,
71,
49,
18,
0,
-8,
-28,
-35,
8,
-27,
12,
-40,
-19,
-39,
-21,
-37,
-37,
-31,
45,
21,
-11,
-47,
-9,
-23,
-17,
29,
-2,
11,
-75,
-77,
1,
6,
36,
11,
13,
-20,
27,
-28,
37,
-12,
-1,
14,
4,
18,
-31,
-23,
55,
-49,
21,
-25,
51,
-19,
-39,
-21,
-20,
-22,
18,
5,
-22,
22,
49,
-28,
-7,
-24,
35,
-35,
45,
-4,
26,
56,
11,
-24,
-21,
5,
22,
-11,
62,
30,
0,
27,
-12,
22,
12,
20,
-16,
0,
30,
-1,
-40,
-19,
53,
-15,
-5,
12,
54,
28,
-48,
0,
-18,
-3,
9,
-31,
-6,
14,
-21,
1,
27,
-25,
0,
-71,
-2,
-18,
10,
-74,
6,
-30,
30,
44,
26,
21,
11,
28,
52,
12,
-3,
68,
-20,
36,
11,
-23,
16,
3,
20,
54,
-49,
26,
6,
-13,
24,
-31,
10,
2,
25,
16,
-32,
-22,
-21,
-8,
-63,
-83,
71,
13,
-72,
31,
-8,
13,
9,
-59,
-30,
-34,
11,
-9,
-62,
0,
19,
-9,
28,
5,
65,
9,
-63,
-30,
-27,
-12,
1,
0,
41,
32,
34,
23,
36,
21,
78,
-60,
-41,
34,
-6,
15,
-51,
-11,
-48,
-43,
18,
30,
8,
-18,
11,
61,
-35,
27,
-44,
-20,
34,
-49,
1,
4,
-28,
-13,
-42,
10,
3,
-23,
-14,
8,
10,
-14,
-12,
-3,
1,
22,
-4,
-8,
-59,
26,
7,
24,
42,
16,
13,
-4,
3,
-13,
17,
6,
39,
9,
9,
36,
-37,
-12,
-8,
0,
5,
44,
-19,
-10,
3,
-27,
61,
30,
4,
-22,
-33,
-1,
30,
-7,
3,
4,
-59,
32,
-32,
12,
6,
24,
-27,
30,
-6,
-11,
46,
-11,
15,
-14,
-36,
4,
-13,
7,
23,
-12,
24,
6,
-32,
-31,
-67,
46,
26,
-7,
-35,
-2,
-3,
-58,
-44,
18,
26,
19,
41,
-20,
19,
10,
42,
1,
20,
-5,
-5,
-18,
-44,
39,
-42,
-8,
-1,
-17,
31,
-11,
-67,
33,
23,
70,
-24,
18,
10,
31,
-36,
3,
1,
-23,
-51,
12,
-42,
-7,
10,
3,
-19,
12,
51,
17,
10,
-2,
-19,
-27,
-63,
-43,
62,
20,
-8,
30,
56,
36,
-19,
-17,
34,
18,
-10,
-9,
8,
12,
-22,
-7,
8,
41,
-30,
-13,
6,
-7,
-23,
-18,
25,
11,
5,
32,
26,
-1,
29,
10,
-55,
32,
16,
14,
-11,
13,
-52,
18,
29,
65,
12,
17,
25,
0,
-9,
45,
9,
-79,
-2,
-29,
-23,
-10,
-13,
0,
5,
-40,
7,
-36,
-32,
-46,
-24,
-7,
-7,
-19,
71,
44,
-9,
28,
-43,
0,
15,
25
] |
PER CURIAM.
It is ordered that the above-entitled proceeding be dismissed in accordance with stipulation of counsel.
|
[
-61,
-51,
54,
6,
23,
-2,
3,
-20,
-4,
-45,
-46,
36,
-106,
-4,
-39,
59,
-50,
-64,
-32,
-51,
34,
76,
51,
-32,
-13,
12,
-6,
5,
126,
-17,
-34,
12,
-32,
71,
2,
-55,
57,
33,
21,
-11,
36,
51,
34,
38,
-2,
-34,
36,
2,
41,
11,
-24,
47,
-11,
-46,
-73,
-40,
-17,
32,
54,
-2,
-20,
14,
-4,
-18,
24,
-29,
24,
-4,
12,
35,
-30,
27,
46,
23,
3,
10,
34,
-44,
11,
15,
27,
53,
12,
47,
-30,
18,
42,
94,
-32,
0,
-31,
19,
29,
-63,
-76,
6,
82,
32,
-13,
19,
33,
6,
43,
-47,
-14,
-90,
19,
-13,
-8,
40,
12,
-7,
-23,
-4,
-6,
31,
-4,
-16,
27,
53,
24,
-8,
-1,
14,
-36,
5,
-16,
15,
12,
-7,
-5,
22,
-18,
12,
40,
14,
53,
60,
-4,
11,
18,
-72,
-19,
21,
-21,
-5,
-62,
96,
26,
-24,
4,
-26,
1,
47,
45,
4,
-55,
-84,
29,
56,
17,
-61,
7,
-14,
-9,
11,
-55,
-42,
-13,
-2,
5,
-22,
29,
17,
-61,
-12,
-51,
49,
34,
16,
6,
0,
-27,
-1,
-30,
34,
-71,
52,
9,
-32,
-23,
-11,
45,
27,
33,
-32,
9,
38,
-7,
-18,
-52,
26,
-84,
-96,
-39,
30,
-58,
-24,
34,
-3,
23,
10,
9,
5,
-9,
13,
-17,
-1,
31,
27,
-15,
-67,
10,
30,
42,
-63,
-16,
44,
53,
70,
33,
4,
-41,
-1,
26,
-38,
71,
26,
-4,
-56,
-36,
20,
63,
-48,
-15,
-6,
69,
108,
53,
-40,
16,
-46,
75,
2,
28,
-10,
-54,
76,
-7,
-24,
26,
22,
-48,
-31,
-41,
59,
38,
-5,
49,
0,
11,
26,
5,
46,
50,
5,
-45,
-48,
-14,
33,
-69,
8,
-3,
-14,
4,
-1,
-10,
-53,
-8,
-25,
-18,
24,
-30,
-12,
26,
33,
-35,
42,
-19,
-49,
-11,
-17,
-42,
19,
25,
-13,
-13,
-2,
16,
-92,
-40,
55,
25,
-2,
-82,
44,
-53,
-45,
27,
-18,
17,
4,
-54,
42,
-34,
-66,
72,
35,
60,
58,
71,
31,
8,
-37,
-58,
102,
-3,
44,
36,
25,
-18,
-7,
-32,
27,
16,
-64,
93,
19,
5,
-17,
-102,
17,
-5,
-29,
67,
-69,
-33,
-28,
16,
-13,
-29,
5,
81,
-20,
23,
10,
16,
38,
-17,
32,
-16,
-2,
-23,
-76,
-83,
4,
-16,
-14,
0,
-5,
-47,
10,
99,
35,
-24,
32,
18,
66,
-53,
-1,
-25,
-29,
-21,
-14,
-80,
22,
3,
63,
-16,
40,
51,
-19,
-25,
-3,
-3,
-19,
19,
-13,
15,
43,
-60,
56,
15,
-22,
63,
-9,
-20,
36,
65,
-6,
13,
22,
3,
55,
-58,
72,
-25,
-30,
32,
-5,
-1,
-28,
65,
67,
-6,
8,
2,
18,
18,
108,
-17,
-17,
28,
-35,
-33,
35,
-47,
-29,
-10,
-32,
1,
0,
0,
-35,
23,
5,
-26,
92,
-47,
33,
-7,
-14,
-39,
-84,
-55,
15,
52,
18,
8,
47,
-58,
-48,
5,
5,
-19,
-38,
-15,
-23,
-76,
-27,
62,
27,
26,
-16,
-50,
-4,
21,
35,
-26,
-58,
-14,
-36,
0,
7,
-33,
-57,
-43,
-24,
-120,
-28,
63,
3,
-31,
31,
9,
-24,
70,
-2,
-21,
-49,
39,
-55,
51,
23,
17,
35,
-6,
6,
14,
-3,
-28,
-48,
-44,
6,
7,
-82,
-6,
14,
16,
21,
-22,
2,
-41,
33,
27,
18,
-41,
-19,
49,
-71,
-32,
26,
38,
5,
53,
60,
27,
93,
35,
1,
-17,
-25,
-6,
-3,
18,
10,
-69,
-45,
75,
-63,
10,
-49,
-55,
1,
-27,
51,
-29,
-9,
16,
4,
26,
-2,
14,
4,
34,
3,
52,
-34,
-22,
-21,
-7,
15,
-26,
-2,
-27,
4,
-3,
-17,
29,
-35,
11,
-5,
31,
-52,
46,
-51,
23,
19,
-29,
59,
-50,
-57,
24,
24,
-32,
-23,
3,
17,
0,
20,
100,
1,
-45,
15,
-29,
-5,
-4,
29,
-24,
90,
-23,
25,
-29,
37,
78,
22,
-57,
-22,
-14,
15,
35,
68,
-10,
1,
-27,
32,
-8,
54,
10,
-52,
-83,
21,
-10,
-85,
47,
-8,
63,
-24,
73,
71,
46,
50,
-21,
-5,
33,
-34,
-16,
-36,
17,
-7,
-50,
-57,
-18,
-62,
-5,
69,
-20,
47,
-51,
13,
16,
20,
28,
-16,
0,
22,
37,
17,
-99,
-72,
-10,
37,
-34,
12,
-37,
-25,
78,
-17,
-41,
27,
48,
-26,
-23,
-31,
-9,
-53,
15,
-2,
80,
-29,
32,
-37,
54,
13,
-46,
-29,
-65,
5,
-67,
4,
-44,
-26,
-57,
46,
-15,
-19,
-53,
-1,
-28,
-71,
36,
44,
11,
-5,
-17,
-54,
-11,
6,
9,
-10,
41,
-24,
30,
31,
-14,
-44,
-34,
14,
-58,
-39,
18,
20,
-9,
-15,
-18,
-10,
-42,
78,
29,
-32,
54,
-61,
-1,
11,
-15,
12,
102,
12,
27,
73,
-37,
-19,
32,
40,
45,
38,
-6,
62,
-81,
-17,
-23,
-3,
97,
-24,
-57,
16,
-58,
22,
14,
55,
5,
-48,
-32,
23,
27,
19,
-2,
-39,
4,
3,
10,
31,
-22,
47,
10,
-30,
1,
-45,
8,
-51,
32,
29,
9,
-26,
0,
55,
-66,
24,
-10,
-12,
-11,
58,
-45,
-17,
-2,
63,
11,
-80,
25,
-29,
21,
-36,
52,
-2,
-16,
-13,
-25,
-45,
-33,
-31,
84,
-30,
-30,
61,
-39,
8,
2,
-46,
-18,
-7,
-73,
3,
-30,
28,
32,
-14,
-47,
58,
9,
-15,
33,
1,
52,
36,
12,
17,
16,
-6,
50,
-73,
1,
17,
4,
-56,
-10,
41,
-52,
21,
57,
-16,
-41,
8,
15,
-11,
10,
-34,
12,
-33,
-5,
12,
75,
67,
-80,
-42,
-5,
1,
6,
-100,
-39,
38,
45,
9,
-18,
30,
76,
60,
-25,
-33,
-4,
-4,
11,
2,
46,
-3,
57,
6,
-102,
62,
-14,
-2,
-11,
80,
-34,
60,
10,
16,
15,
20,
16,
-11,
85,
48,
-4,
9,
29,
-7,
24,
0,
15,
-43,
32,
-13,
13,
-5,
-22,
-92,
-34,
19,
-23,
48,
-56,
-4,
-14,
31,
30,
2,
-18,
-40,
65,
-16,
15,
-17,
-21,
-34,
-60,
-32,
30,
86,
27,
-26,
-25,
-98,
-42,
0,
-49,
-6,
-30,
15,
-4,
14,
7,
56,
10,
24,
-10,
-31,
26,
14,
-22,
4,
-52,
-40,
39,
-34,
-90,
31,
-2,
22,
14,
-96,
40,
33,
-24,
-65,
-52,
-34,
19,
-3,
0,
29,
-52,
44,
19,
-57,
0,
41,
8,
27,
-20,
-11,
-7,
32,
48,
-23,
22,
-30,
-2,
-9,
13,
-51,
-14,
-2,
0,
2
] |
MR. CHIEF JUSTICE JOHNSON
delivered the opinion of the court.
This is an appeal by the defendant from an order' denying his motion for change of venue in an action for damages for alleged breach of contract.
The complaint, filed in Silver Bow county, alleged that the defendant Cloyd was a practicing dentist at Livingston (Park county), Montana, and was desirous of establishing a dental laboratory there; that he. therefore promised that if plaintiff would quit his job, he would get plaintiff into a dental laboratory at Butte (Silver Bow county), Montana, for the purpose of learning the business and during that time would pay plaintiff $10 a week, that after plaintiff had learned the business he would establish plaintiff in a dental laboratory at Livingston, that plaintiff would be able to earn “a profit” of $200 per month, that “in the event he was not placed in a dental laboratory in Butte,” defendant would place him in a dental laboratory in Portland, Oregon, or Minneapolis, Minnesota, and in that event would pay plaintiff $10 per week and in addition the cost of his board and room while learning the said business at either of those places; that on March 1, 1938, and long prior thereto plaintiff had been steadily employed as a bookkeeper and accountant at Butte and was earning $125 per month; that in consideration of defendant’s said promise and at defendant’s request and relying upon the agreement, plaintiff terminated his employment on March 15, 1938, and requested defendant to place him in a dental laboratory; that defendant had not done so and had not paid plaintiff any sums except $120 paid him in April and May, 1938; that plaintiff did everything required of him under the agreement and had at all times since March 15, 1938, been ready, willing and able to enter a dental laboratory; that he had been out of employment since March 15, 1938, except for thirteen weeks of temporary employment.
The complaint made no direct allegation of plaintiff’s damage by reason of the alleged breach of contract, but the prayer of the complaint was for judgment for $975 as wages lost between March 15,1938, and the filing of the complaint on March 7, 1939, and for the sum of $3,000 damages “from loss of earning power by reason of not being able to learn said dental laboratory business, ’ ’ and for his costs.
It will be noted that the contract alleged was for the placing of plaintiff by defendant in a dental laboratory at Butte, Montana, Portland, Oregon, or Minneapolis, Minnesota, for the pur pose of learning the dental laboratory business, and for the payment to him by defendant of $10 per week at Butte, or of $10 per week and room and board at Portland or Minneapolis, while he was learning the business, and for. establishing plaintiff in a dental laboratory at Livingston after he learned the business. In other words, the contract had two purposes, (1) plaintiff’s training for the business and (2) his establishment in it.
However, plaintiff sought by his complaint to recover only for his loss of wages during the period from March 15, 1938, to March 7, 1939, and for $3,000 as “loss of earning power” by reason of defendant’s failure to place him in a dental laboratory and maintain him there so as to learn the business; and no damages appear to be based upon breach of the second part of the contract, which was for the establishing of plaintiff in business after the completion of his training.
Upon filing his appearance, the defendant filed written demand and motion for change of venue, affidavit of merits and affidavit in support of motion, together with notice setting the latter for hearing. The affidavit in support of defendant’s motion stated that he was at all times a resident of Park county; that service was had upon him there; that the contract in suit was entered into in Park county, if at all; “that all loans and advances or payments as alleged in the complaint, if any, ’ ’ were to be made to plaintiff by defendant in Park county; and “that all payments or advances alleged in the complaint as having been made” were made in that county; that the contract “if any, was to be performed by said defendant and said plaintiff” in Park county and “that all of the obligations under said contract, if any, to be performed by said defendant were to be performed by him” in Park county, Montana.
At the time set for hearing of the motion the plaintiff filed a counter-affidavit, alleging that the contract sued upon “was, and is to be performed in Silver Bow county, Montana, and that all payments under said contract were, and are, to be paid in Silver Bow county, Montana.”
It has been established by this court that in the provision of section 9096, Bevised Codes, providing that “Actions upon contracts may be tried in the county in which the contract was to be performed,” “may” means “must” (State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030); and that the burden of establishing the right to a change of venue is upon the movant. (Courtney v. Gordon, 74 Mont. 408, 241 Pac. 233.)
The only specification of error is that the court erred in denying the motion for a change of venue. Defendant accepts the above rules but contends also that if the place of performance was to be outside of Montana the proper place for trial was in the county of defendant’s residence, and that in any event the venue is in Park county, where he resides. He recognizes the fact that there were two purposes of the contract: First, financing and making possible plaintiff’s training, either in Silver Bow county, Montana, or outside the state; second, establishing plaintiff in business, in Park county. As to the first part of the contract, defendant argues that since the pleaded agreement was that ‘ in the event he [plaintiff] was not placed in a dental laboratory in Butte,” he would be placed in one outside of the state, there was no obligation to perform the contract in Silver Bow county; that that part of the contract was therefore not to be performed in Montana, and that venue was therefore in Park county. Defendant argues that since the second part of the contract — the establishment of plaintiff in a dental laboratory— was to have been performed in Park county, that county was to have been the final or ultimate place of performance, and was thus the proper place for trial.
The latter contention is clearly not tenable. While this court has held that a contract is not performed until completely performed (Hanlon v. Great Northern Ry. Co., 83 Mont. 15, 268 Pac. 547), the contract involved in that ease comprised only one purpose, the carriage of livestock to destination. In this case there were two objects, and it is clear that plaintiff claims damages only for the first, which was to be performed either in Silver Bow county or outside of the state. Thus it is immaterial that the second object was to have been performed in Park county, since that part of the contract is not involved in the suit. We shall therefore limit our further discussion to the question where the first part of the contract was to have been performed. And in considering that question it will not be necessary to determine whether if the place of performance is to be outside of Montana the venue is in the county of defendant’s residence, as stated by way of dictum in State ex rel. Interstate Lumber Co. v. District Court, supra.
It will be noted that the affidavit and counter-affidavit are of virtually no assistance in determining this question, that both contain little more than conclusions of law as to where the contract was to be performed, and that if the contract as set up in the complaint means anything, it is that the. conclusions of neither affidavit are entirely • .correct. The complaint clearly alleges that the defendant agreed to place plaintiff in a dental laboratory at either Butte, Portland, or Minneapolis, and to pay him certain amounts, obviously for his maintenance, while there. It seems clear that regardless of the conclusions stated in the affidavits of both parties, the support was to be furnished to plaintiff by defendant wherever plaintiff was receiving his laboratory training, and in no event was it to be within Park county, Montana. By no stretch of the imagination can we suppose that whether plaintiff was to be trained at Butte, Portland, or Minneapolis, he was to receive defendant’s payments at Livingston, and the fact that such payments as he did receive were made at that point could not alter the fact that the part of the contract involved in this suit was in no event to be performed in Park county.
Obviously it was the primary expectation that the performance was to be at Butte, and in that event the burden upon defendant was the less, whereas if performance of that part of the contract should be at Portland or Minneapolis, the defendant was to furnish board and room in addition to the sum of $10 per week.
Thus the place of performance of that part of the contract sued upon was in the alternative, and was to be either in Silver Bow county, where the action was filed, or at Portland, Oregon, or Minneapolis, Minnesota. In 1 Restatement of the Law of Contracts, section 325, pages 493 and 494, the rules concerning alternative performance are stated as follows:
“c. A promise of one of several alternative performances will give the choice of the alternative, unless the contrary is stated, to the person who is to render the performance. This will ordinarily be the promisor, but may possibly be the promisee. ’ ’
“e. Where the ultimate time has arrived' when some performance must be rendered by the promisor, and he neither performs nor elects, it cannot be said that the promisor is under a duty to perform any particular one of the alternatives. The breach of duty is the failure to render any one of the performances promised.”
The rule would seem to express what was obviously the intention here: That the defendant had the choice of the alternatives mentioned.
The rule is further stated (12 Am. Jur. 876, 877, sec. 322), as follows: “WTien a promise is in the disjunctive, ordinarily the promisor may elect which act he will perform. The obligation may be discharged by the performance of either of the enumerated acts at the election of the obligor. * ® * One who contracts in the alternative to do one of two things by a given date has, until the day is past, the right to elect which of them he will perform; but .if he allows the day to elapse without performing either, his right of election is lost. (Citing Texas & P. R. Co. v. Marlor, 123 U. S. 687, 8 Sup. Ct. 311, 31 L. Ed. 303; Choice v. Moseley, 17 S. C. L. 136, 1 Bailey, 136, 19 Am. Dec. 661.) There is some authority to the effect that the right of election thereupon passes to the other party.” (Citing Bockelman v. Spires, 110 Neb. 234, 193 N. W. 334; Ellison v. Boyd, 130 S. C. 269, 125 S. E. 493, 36 A. L. R. 855.)
If this rule is correct, it would seem to follow that where a given day is not stated for the election the expiration of a reasonable time should have the same effect, and such .broader rule is indicated (17 C. J. S., Contracts, pp. 935, 936, sec. 455) as follows: “As a rule, the person who is to perform the contract has a right to elect which one of the alternative promises he will perform; * * * . Only on the exercise of the right of election, either by the promisor or by the other side, to whom the right may pass on his failure, does the obligation become absolute and determinate.”
With particular reference to venue the rule has been stated (67 C. J. 31, sec. 33) as follows: “If the contract gives defendant an option to perform in either of two counties, he may be sued in either, since, having failed to exercise the option, the right to elect has passed to plaintiff.” (Citing Gaddy v. Smith, 49 Tex. Civ. App. 433, 116 S. W. 164.)
It is unnecessary to decide whether, so far as the enforcement of the contract is concerned, the right to elect, if not exercised by the promisor, passes from him to the promisee; but we do adopt the view that it passes for the purpose of determining venue, at least. Plaintiff rightfully elected to bring this action in Silver Bow county, and that is the proper county for its trial.
The order appealed from is therefore affirmed.
Associate Justices Morris, Angstman, Erickson and Arnold concur.
|
[
-4,
0,
-46,
27,
-16,
-72,
8,
11,
0,
29,
20,
38,
52,
-53,
-20,
-20,
-52,
-11,
3,
22,
-5,
-36,
-50,
-19,
-23,
24,
-18,
-55,
-50,
-10,
14,
24,
-2,
-10,
-35,
72,
44,
-23,
-6,
-35,
57,
-8,
9,
-20,
46,
50,
-18,
-6,
1,
-8,
1,
12,
-8,
35,
-2,
10,
-11,
-8,
-19,
9,
-59,
-28,
62,
19,
47,
-46,
40,
26,
34,
-5,
-61,
-11,
24,
-33,
-3,
-54,
-26,
-48,
-14,
-6,
-12,
-12,
34,
-50,
-54,
36,
14,
36,
-10,
25,
8,
13,
24,
9,
28,
0,
-29,
22,
1,
-21,
0,
-18,
-38,
-19,
62,
-44,
-63,
41,
33,
52,
14,
-3,
24,
-16,
3,
-4,
14,
51,
-1,
-49,
20,
57,
17,
-19,
-1,
-3,
29,
-63,
16,
-2,
-11,
-32,
-20,
24,
8,
-7,
25,
-13,
-3,
34,
12,
10,
9,
-31,
-11,
44,
5,
3,
-51,
-22,
-10,
-58,
78,
54,
0,
15,
-2,
-15,
48,
-29,
19,
-5,
9,
22,
22,
-9,
-9,
42,
51,
-18,
34,
9,
-28,
-25,
15,
34,
0,
-39,
-7,
40,
-18,
6,
21,
-83,
14,
-49,
42,
-3,
28,
77,
-39,
21,
-27,
-23,
-20,
-11,
31,
5,
12,
-18,
28,
10,
-25,
43,
48,
-17,
22,
-18,
-5,
26,
-7,
-13,
16,
-11,
0,
27,
0,
-15,
-27,
3,
26,
-7,
-61,
42,
-11,
-24,
32,
-7,
29,
-51,
-47,
38,
34,
32,
14,
-20,
44,
-9,
-23,
-35,
-74,
8,
27,
-9,
-32,
-30,
-64,
17,
-8,
42,
1,
22,
18,
59,
-1,
-11,
-1,
7,
-17,
-27,
12,
6,
20,
-15,
22,
-51,
-16,
-5,
42,
-16,
-23,
8,
2,
-6,
-24,
-24,
68,
-29,
9,
-17,
-20,
8,
-29,
-34,
18,
-9,
10,
-16,
-17,
-25,
-11,
-30,
13,
7,
53,
16,
61,
0,
-34,
0,
-9,
-57,
16,
2,
6,
31,
-75,
3,
-11,
-8,
-26,
-10,
-37,
-7,
13,
28,
-37,
27,
11,
-39,
29,
75,
-25,
-12,
-14,
50,
4,
-7,
-33,
-15,
33,
0,
-43,
0,
-53,
-27,
21,
26,
41,
-11,
4,
7,
-6,
-3,
-25,
38,
1,
0,
28,
-12,
2,
-18,
-16,
37,
-5,
69,
-7,
-40,
-13,
-6,
36,
-17,
-12,
-19,
-37,
-28,
-36,
-5,
28,
1,
-14,
27,
9,
-60,
-18,
-3,
28,
24,
-14,
56,
40,
-36,
-39,
14,
35,
41,
43,
-10,
8,
-21,
-30,
-32,
19,
23,
51,
51,
35,
0,
2,
-26,
-13,
-12,
-32,
-26,
-14,
38,
-6,
6,
-40,
4,
-28,
-12,
-25,
-30,
7,
-21,
33,
21,
-22,
3,
-24,
-7,
13,
78,
90,
-25,
53,
-9,
-7,
20,
17,
12,
8,
-10,
-51,
-46,
-29,
18,
-22,
31,
-7,
-22,
-40,
-4,
-17,
19,
-16,
23,
-11,
4,
9,
27,
-10,
64,
-20,
0,
31,
12,
10,
-13,
35,
25,
-21,
-10,
-8,
4,
52,
0,
-48,
3,
-3,
10,
69,
2,
1,
24,
-56,
-1,
-13,
18,
-30,
-5,
26,
50,
-5,
17,
-42,
0,
17,
35,
-3,
52,
-28,
-22,
-30,
-27,
-4,
-6,
40,
12,
-58,
-41,
-6,
19,
-46,
-10,
3,
19,
-19,
14,
-19,
5,
18,
-5,
7,
16,
33,
60,
-30,
52,
55,
58,
5,
32,
-11,
29,
-38,
16,
35,
6,
-60,
26,
-1,
-8,
4,
0,
71,
6,
-23,
-24,
-27,
-25,
21,
32,
-7,
-1,
-51,
45,
76,
-12,
38,
16,
11,
9,
-5,
35,
-31,
33,
-15,
37,
4,
29,
-51,
-4,
32,
25,
1,
-18,
15,
36,
-23,
23,
-28,
21,
24,
-3,
-59,
-22,
-13,
-36,
6,
-35,
16,
-25,
-50,
15,
16,
-42,
-24,
36,
-30,
-10,
20,
-11,
-37,
16,
1,
-10,
-7,
13,
0,
11,
-17,
34,
-32,
9,
-41,
7,
51,
-17,
10,
-4,
-5,
-34,
-19,
-21,
-10,
-35,
35,
-2,
25,
-7,
6,
-7,
11,
14,
-56,
-54,
-42,
23,
-2,
-3,
9,
-18,
7,
69,
-11,
21,
-24,
-55,
22,
1,
14,
15,
-33,
48,
5,
-14,
19,
-15,
74,
30,
60,
3,
-19,
68,
24,
9,
16,
-18,
21,
-49,
-58,
-55,
-10,
16,
9,
49,
21,
21,
41,
-11,
8,
7,
17,
-58,
8,
-13,
48,
-30,
33,
20,
37,
4,
-32,
-3,
25,
-11,
12,
-23,
-19,
31,
-28,
-67,
9,
-16,
16,
23,
-21,
-5,
7,
-31,
19,
8,
8,
26,
-11,
3,
-45,
5,
22,
-36,
-17,
3,
8,
-5,
11,
-5,
-9,
-20,
9,
-29,
-19,
9,
42,
12,
-26,
15,
-17,
0,
13,
36,
26,
8,
-11,
-21,
-1,
-14,
-55,
-20,
14,
-5,
-27,
49,
19,
-6,
51,
-7,
-82,
-12,
30,
-7,
-21,
-34,
-28,
-31,
-35,
42,
-44,
49,
26,
0,
10,
-1,
-41,
11,
26,
-54,
-50,
1,
18,
-9,
7,
14,
8,
-23,
-17,
-11,
-18,
19,
33,
0,
-8,
1,
-22,
-20,
20,
13,
-12,
34,
-19,
-37,
-34,
-62,
-6,
-48,
-17,
-17,
-1,
34,
-34,
-49,
24,
47,
35,
-23,
-15,
-3,
5,
-5,
-40,
-1,
19,
-14,
5,
-40,
-63,
-35,
-11,
0,
-13,
-4,
-9,
74,
89,
-6,
8,
-11,
-37,
28,
28,
2,
31,
-4,
-7,
26,
3,
17,
5,
28,
-6,
3,
-34,
15,
15,
6,
-58,
23,
-11,
-34,
-65,
7,
-9,
3,
6,
-23,
37,
-89,
18,
49,
14,
3,
-30,
59,
9,
-6,
40,
-6,
-20,
12,
1,
-19,
20,
20,
-5,
43,
13,
-30,
106,
49,
-24,
16,
-16,
-15,
23,
-35,
-4,
0,
19,
7,
28,
-19,
-5,
-12,
14,
-30,
12,
-36,
-35,
0,
20,
11,
35,
2,
-14,
11,
33,
-40,
13,
57,
-15,
17,
-41,
-50,
-6,
27,
-28,
30,
-4,
28,
31,
13,
-84,
-30,
-6,
21,
-48,
-5,
15,
36,
0,
18,
21,
22,
-10,
-22,
-10,
-43,
-12,
1,
-39,
-30,
20,
12,
-11,
-24,
1,
-38,
8,
44,
-12,
58,
-14,
38,
-22,
-59,
-3,
-56,
-1,
-17,
-26,
37,
17,
-23,
-29,
6,
23,
-9,
27,
-1,
17,
-20,
64,
5,
-12,
-29,
-9,
17,
55,
-42,
16,
15,
-16,
-20,
6,
25,
-38,
-43,
-56,
-6,
38,
0,
-6,
9,
16,
-12,
-3,
-55,
65,
-31,
-2,
-12,
-30,
18,
1,
-1,
3,
-13,
7,
-19,
37,
24,
11,
-40,
-39,
-11,
-2,
11,
-52,
7,
-19,
-5,
-13,
37
] |
PER CURIAM.
After due consideration of the application of relator for writ of certiorari, the petition is denied.
|
[
-18,
-60,
9,
-3,
39,
-16,
30,
-24,
25,
-51,
-63,
-7,
-22,
64,
-44,
78,
52,
58,
15,
-95,
-14,
43,
51,
60,
-24,
-31,
68,
41,
51,
-2,
-29,
-2,
-72,
32,
-52,
-83,
-21,
-34,
41,
43,
14,
11,
9,
18,
-57,
-26,
3,
56,
0,
18,
0,
27,
-53,
-26,
-53,
-10,
38,
-34,
-19,
-69,
-5,
68,
11,
54,
-25,
-51,
-24,
-15,
40,
39,
-1,
-6,
41,
3,
66,
-19,
-13,
-28,
-8,
26,
10,
76,
31,
51,
5,
16,
11,
43,
23,
-3,
-5,
-4,
-28,
-19,
-93,
78,
14,
-48,
-4,
52,
7,
16,
72,
-72,
-71,
-71,
-27,
42,
-3,
11,
5,
7,
-44,
-38,
-19,
15,
-19,
14,
52,
-55,
-57,
31,
-53,
31,
25,
49,
-41,
28,
43,
12,
68,
80,
53,
43,
16,
-58,
65,
-9,
2,
-47,
-32,
14,
76,
30,
1,
-90,
23,
31,
-43,
-14,
24,
-4,
-36,
-3,
3,
40,
-1,
-38,
39,
-9,
61,
16,
-57,
9,
70,
-4,
-21,
-41,
-1,
-46,
10,
40,
5,
-12,
-43,
-63,
25,
19,
20,
65,
55,
5,
66,
52,
-35,
28,
-61,
-2,
-2,
-41,
-31,
-4,
40,
42,
46,
-5,
-24,
-46,
14,
25,
-65,
1,
-40,
-25,
4,
-68,
-37,
-96,
36,
-6,
0,
-76,
-14,
-21,
29,
-31,
76,
25,
53,
73,
16,
-1,
-28,
-83,
46,
28,
22,
50,
-2,
-21,
-17,
-3,
-24,
-38,
74,
-25,
57,
38,
15,
3,
-8,
28,
22,
21,
-24,
-56,
-9,
66,
18,
-24,
11,
-15,
37,
-84,
-14,
-26,
-77,
57,
51,
-101,
-13,
29,
-10,
-82,
-20,
32,
64,
32,
41,
-2,
-5,
-5,
-21,
54,
66,
27,
-26,
-33,
-10,
36,
-62,
47,
2,
2,
-56,
17,
-13,
-24,
35,
15,
-1,
8,
28,
-60,
9,
-2,
-50,
2,
-50,
-28,
32,
-3,
4,
10,
29,
-38,
0,
4,
40,
-36,
-17,
47,
36,
1,
-24,
74,
-25,
-61,
8,
-17,
12,
-37,
-11,
32,
-26,
16,
-5,
10,
13,
14,
48,
38,
7,
10,
17,
51,
28,
43,
-37,
56,
2,
49,
-87,
79,
-16,
-47,
14,
-33,
39,
79,
-46,
-3,
-38,
-76,
25,
-54,
-6,
-82,
-28,
16,
47,
11,
44,
12,
32,
-37,
7,
-4,
-12,
45,
-25,
17,
57,
-24,
-3,
10,
5,
47,
-24,
-56,
-91,
-77,
44,
45,
11,
42,
9,
62,
15,
-45,
-23,
-37,
-12,
-46,
-36,
49,
29,
66,
3,
46,
1,
-49,
-57,
59,
24,
-17,
-23,
27,
-31,
-5,
-29,
-10,
-17,
-11,
11,
46,
7,
-23,
66,
5,
-79,
-54,
-50,
51,
-82,
14,
-17,
-16,
-14,
3,
-9,
-45,
21,
-48,
-20,
36,
24,
-5,
12,
26,
31,
54,
-29,
-39,
-44,
27,
-58,
-27,
-66,
-5,
-20,
3,
-38,
-59,
0,
-5,
3,
43,
-8,
22,
-18,
17,
9,
-30,
37,
0,
43,
12,
-56,
13,
-8,
-8,
-42,
15,
-58,
-22,
-25,
-4,
-53,
-7,
-17,
11,
14,
-98,
-38,
-2,
-40,
18,
-15,
6,
16,
6,
-1,
76,
-61,
-30,
0,
-38,
-28,
16,
17,
76,
-4,
25,
30,
-9,
-28,
5,
-24,
-52,
39,
-18,
9,
34,
44,
56,
2,
12,
-63,
-22,
-41,
-61,
-21,
7,
-37,
22,
-17,
-24,
24,
74,
-64,
-56,
-110,
-28,
-9,
-69,
23,
42,
2,
18,
-25,
49,
38,
28,
54,
83,
-26,
30,
23,
-1,
-8,
20,
3,
77,
-35,
10,
-3,
-76,
23,
-23,
6,
-52,
-58,
10,
-23,
36,
11,
13,
19,
65,
-27,
2,
-24,
27,
20,
-16,
45,
-23,
-7,
-32,
-2,
20,
-50,
-55,
-47,
-34,
-67,
8,
-24,
-27,
-45,
-5,
54,
-70,
18,
44,
-42,
-33,
0,
45,
-1,
25,
25,
50,
-28,
16,
-20,
27,
-39,
-2,
9,
14,
-20,
10,
-46,
-54,
-13,
66,
39,
40,
21,
76,
-54,
61,
-12,
-7,
-64,
-19,
18,
80,
29,
82,
-15,
-3,
-29,
30,
-42,
26,
7,
-30,
-21,
-3,
60,
-73,
-36,
-28,
-3,
0,
42,
18,
57,
77,
5,
-31,
19,
-7,
-34,
-32,
21,
34,
-103,
-9,
-61,
-6,
-64,
27,
-18,
20,
22,
31,
-24,
28,
26,
-64,
-6,
-55,
88,
6,
3,
-5,
3,
-25,
17,
-16,
37,
-62,
-3,
-25,
-40,
82,
49,
-56,
21,
-21,
17,
-22,
-16,
60,
7,
58,
5,
-38,
-7,
42,
-24,
-9,
-41,
-68,
-50,
-69,
-44,
-23,
-43,
-7,
40,
1,
-25,
-19,
57,
-43,
30,
16,
-18,
23,
-40,
4,
-1,
28,
61,
-2,
4,
-6,
79,
-6,
-30,
-65,
11,
-33,
29,
-65,
-25,
-15,
-6,
-29,
28,
-62,
8,
46,
-30,
-41,
48,
-56,
-30,
75,
-5,
-41,
-28,
-41,
68,
28,
23,
-10,
6,
-6,
-30,
30,
18,
-50,
-10,
88,
3,
-44,
78,
7,
12,
26,
-22,
25,
118,
57,
-41,
-11,
-4,
67,
26,
20,
-1,
-16,
-1,
-49,
64,
-12,
-21,
45,
43,
-23,
-46,
-1,
58,
-21,
10,
-64,
42,
-16,
22,
10,
-57,
62,
-36,
48,
27,
-11,
-111,
47,
-11,
56,
80,
20,
0,
-41,
25,
17,
16,
23,
31,
19,
28,
-10,
21,
35,
13,
-40,
-9,
12,
-24,
-8,
0,
11,
-5,
-32,
21,
12,
10,
19,
52,
0,
-83,
73,
37,
64,
11,
-41,
56,
55,
10,
8,
-1,
-2,
8,
-26,
9,
-2,
29,
-46,
-22,
-5,
54,
-17,
44,
30,
11,
-13,
12,
24,
54,
9,
49,
15,
-3,
60,
-31,
48,
0,
-15,
45,
0,
-38,
-40,
-38,
0,
38,
13,
-18,
27,
93,
-88,
15,
12,
-6,
47,
-15,
13,
15,
25,
27,
21,
-8,
-7,
28,
10,
-7,
35,
-64,
-4,
28,
-71,
20,
-20,
-72,
-45,
13,
85,
-29,
-49,
-1,
0,
25,
20,
-14,
-76,
56,
-22,
-29,
15,
-18,
-24,
-40,
10,
-58,
41,
-20,
11,
11,
-50,
-53,
-39,
-53,
-10,
76,
-8,
19,
-61,
15,
-30,
-56,
-23,
47,
38,
17,
-10,
-9,
17,
-61,
72,
-82,
30,
-9,
58,
12,
24,
-25,
57,
41,
6,
-11,
4,
-44,
-38,
1,
39,
5,
-27,
40,
-23,
-82,
-18,
-37,
26,
13,
-88,
14,
13,
-26,
-116,
48,
-27,
-17,
41,
-26,
67,
-20,
30,
29,
-47,
-29,
37,
3,
-12,
-22,
-5,
-3,
40,
48,
31,
5,
-20,
36,
7,
1,
7,
-15,
-58,
21,
-59
] |
MR. JUSTICE ARNOLD
delivered the opinion of the court.
This appeal follows a judgment in favor of the plaintiff in an action to recover damages for injury to an automobile owned by the plaintiff, the action being based upon the alleged negligence of the defendant in failing to procure insurance for the plaintiff’s car after previous policies had been cancelled.
The evidence discloses that on July 3, 1936, the plaintiff bought an automobile from a dealer in Butte, the dealer retaining title to secure the unpaid balance of the purchase price, which, including insurance premiums, was to be paid in twenty-four equal monthly installments of $40.13. The dealer assigned the contract to the defendant. At the time of the assignment the Firemen’s Fund Insurance Company was the insurer of the automobile against loss by fire, theft and colli sion. The policy remained in the hand's of defendant and it informed plaintiff on June 24, 1937, that the insurance company had cancelled it and that the defendant had procured another similar policy in the Continental Insurance Company which was delivered to the plaintiff. On November 3, 1937, the defendant notified the plaintiff that the Continental Insurance Company had likewise cancelled its policy and,' in the letter conveying this information, the defendant advised the plaintiff that a check for $27.93 representing pro rata return premium had been given it by the insurance company, and asked the plaintiff to let defendant hear from him with reference to the matter. The defendant also asked the plaintiff to furnish a new policy or give the defendant permission to purchase a policy for him. The concluding lines of the letter are as follows: “Accordingly, we are depending on you to either furnish a policy at this time or give us permission to purchase one for you. ’ ’
The plaintiff testified that subsequently, and on November 8, 1937, he went to the defendant’s office to see about the insurance and made a payment at that time on his automobile to the cashier, Miss Castellano, receiving a receipt. The payment he made was the usual payment of $40.13, which included the pro rata cost of insurance. He endeavored to relate the conversation between him and the cashier concerning the insurance, and on objection an offer of proof was made which the court allowed to go in as evidence. He testified that when he asked to see the manager concerning the letter he had received about the insurance, the cashier informed him that the manager, A. N. Castrow, was busy. He then told the cashier that he had come to see Mr. Castrow concerning the insurance; that thereupon the cashier referred to the files and advised him that insurance had been taken out and he was covered. He thereupon departed without seeing the manager and continued making payments as required in his contract.
The plaintiff subsequently, on May 23, 1938, suffered a collision resulting in damage to his automobile which forms the basis of this suit. The defendant sent an adjuster to ascertain the damages who requested an automobile repair man to get the automobile and estimate the cost of repairing it. It later developed that the automobile had not been insured after the cancellation of the second policy, and after final payment made in July, 1938, the defendant sent the plaintiff the insurance refund hereinbefore mentioned of $27.93, which he refused to accept.
The defendant’s specifications of error Nos. 1, 2 and 3 relate to the admissibility of the plaintiff’s testimony concerning the statement of the cashier, Miss Castellano, the contention of defendant being that she had no authority to bind the defendant upon insurance matters, her sole duty as cashier being to receive moneys and to issue receipts, and that the statement the plaintiff claimed she made would be outside the scope of her authority. Counsel for both sides devoted considerable time to discussion of admissibility of plaintiff’s testimony concerning such statement.
The plaintiff had received a letter from A. N. Castrow, manager of defendant, concerning the insurance, in response to which plaintiff went to his office with the avowed purpose of seeing him. He therefore knew the name of the person with whom he would deal concerning the insurance. From other decisions of this court, notably Benema v. Union Central Life Ins. Co., 94 Mont. 138, 21 Pac. (2d) 69, and Ashley v. Safeway Stores, 100 Mont. 312, 47 Pac. (2d) 53, the statement alleged to have been made by Miss Castellano, the cashier, would not be sufficient, standing alone, to bind the defendant as the representation of an agent authorized to make such a statement. However, we must consider what was said and done before and after the alleged statement of the cashier to determine whether or not it was admissible under any rule of evidence.
The facts clearly indicate that the defendant was interested in having insurance on the automobile to protect its own interest therein under the title-retaining contract. It requested the plaintiff to either get insurance or give the defendant permission to procure the insurance. On a previous similar occasion the defendant had secured a policy for plaintiff. In response to the letter the plaintiff did everything that a reasonably prudent m an would have done under similar circumstances — that is, he called' upon the defendant for the purpose of giving his permission to procure another insurance policy; being unable to reach the manager, he told the cashier his mission and, being advised that the automobile was insured, he made his payment not only for that month but for six succeeding months to the defendant, all of which payments included a portion of the cost of insurance as required under his contract.
The conversation between plaintiff and the cashier tends to show what he did in order to comply with the written request of the defendant relating to procurement of insurance. The alleged statement of the cashier was merely an incident of the res gestae. The main transaction was the offer of the defendant to procure coverage for the plaintiff’s automobile, as it had previously done, and the acceptance of the offer by the plaintiff, which was manifested at the time the statement was said to have been made by the cashier. The plaintiff was not then interested in learning if the car was covered, but he was interested in procuring future coverage. ’The defendant, not taking any steps thereafter to compel plaintiff to get insurance or to refund to the plaintiff the amount of unearned insurance premium it had received for him, and continuing to accept payments including cost of insurance, would certainly be in a position of having led the plaintiff to believe his automobile was insured.
Under the facts in this ease, liability would have been shown on the part of the defendant if the cashier had made no statement. The purpose of plaintiff in talking with her was to communicate to the defendant his approval of defendant’s offer to procure insurance for his automobile and was in fact his answer to the letter which the defendant had written him. The plaintiff merely used this means for communicating his authority to the defendant to procure insurance for his automobile, and the subsequent acts of the defendant would certainly cause the plaintiff to believe that he was insured.
Other specifications of error relate to the giving of Instructions Nos. 6 and 7, which cover the question of liability as a result of deceit and fraud. The defendant’s objections are to the effect that there were no questions of fraud or deceit growing out of the issues or evidence in the case. "Were the instructions standing alone, the objections might be well taken, but instructions must be considered as a whole. Instructions Nos. 8, 9 and 10 amplify and explain the questions raised by Instructions Nos. 6 and 7. We believe there was no error in giving the instructions objected to. As a matter of fact, they appear to add an additional burden upon the plaintiff of proving that the defendant’s acts were motivated by an intent to deceive the plaintiff, which, of course, was not necessary in order to establish liability.
Finding no error, the judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Erickson concur.
|
[
14,
32,
31,
-7,
34,
-34,
30,
-38,
28,
-15,
74,
50,
-8,
14,
-28,
-3,
46,
30,
29,
-4,
-42,
-41,
-37,
-38,
-38,
-28,
36,
-108,
-46,
31,
15,
25,
-9,
24,
-62,
23,
-42,
-20,
13,
14,
36,
1,
15,
20,
17,
12,
18,
-53,
55,
-6,
52,
-17,
2,
14,
5,
-40,
41,
8,
-14,
-1,
-30,
-78,
58,
35,
-19,
-5,
28,
65,
41,
63,
-20,
-5,
52,
-1,
-2,
-40,
14,
23,
-56,
-49,
-19,
-57,
41,
-13,
-2,
67,
-13,
0,
-68,
-19,
-70,
-24,
62,
-6,
21,
-13,
-20,
6,
-22,
47,
33,
-34,
-5,
59,
21,
20,
0,
-12,
2,
35,
-23,
48,
-12,
14,
-5,
13,
-16,
44,
21,
-31,
-1,
-34,
-22,
-10,
-18,
8,
-39,
18,
-44,
26,
-40,
37,
39,
57,
7,
-26,
-18,
-44,
22,
31,
24,
-23,
-20,
-32,
-4,
48,
21,
-29,
-9,
22,
6,
-13,
44,
26,
0,
-22,
-34,
-60,
49,
-64,
-12,
-70,
28,
45,
8,
60,
-17,
-1,
-21,
-28,
14,
-36,
4,
-40,
42,
20,
6,
-35,
-30,
-20,
8,
6,
20,
-33,
20,
-31,
18,
11,
20,
-33,
24,
-37,
-32,
30,
-29,
12,
16,
27,
49,
-24,
23,
-30,
8,
-12,
15,
14,
-46,
-6,
31,
-1,
48,
8,
8,
-24,
-25,
46,
-27,
-13,
-43,
-12,
-39,
7,
-78,
-33,
-35,
-11,
-45,
-13,
-9,
24,
-30,
39,
-21,
73,
-5,
20,
19,
-31,
-14,
15,
29,
0,
33,
-26,
15,
35,
25,
8,
16,
-15,
13,
-13,
20,
15,
-19,
11,
30,
-8,
27,
-14,
-5,
45,
17,
33,
47,
-29,
24,
-34,
39,
7,
25,
0,
31,
-18,
-20,
-70,
14,
-10,
17,
-21,
-11,
-37,
-53,
-23,
30,
2,
13,
-3,
-7,
-29,
48,
-25,
43,
-1,
17,
-1,
13,
1,
-14,
-1,
-21,
-29,
2,
-4,
24,
-45,
-53,
-15,
-51,
15,
-58,
12,
-20,
-20,
60,
21,
-31,
11,
-7,
44,
40,
75,
-40,
67,
3,
-34,
7,
-7,
-7,
-19,
-39,
-17,
1,
15,
-20,
-62,
-5,
19,
41,
5,
6,
6,
-7,
24,
-42,
61,
28,
-8,
-4,
9,
-21,
-7,
-51,
-9,
-43,
13,
83,
-3,
-45,
45,
30,
29,
14,
15,
10,
48,
-27,
-13,
-49,
33,
35,
31,
-24,
-24,
-31,
-50,
-32,
20,
-32,
39,
20,
-21,
-40,
-38,
14,
29,
48,
-29,
-47,
-2,
-47,
39,
20,
26,
-17,
-37,
0,
-24,
-53,
1,
6,
21,
-20,
-57,
-8,
-15,
52,
-39,
-41,
-48,
-35,
-21,
0,
-1,
9,
22,
67,
18,
-23,
-56,
-4,
-11,
2,
45,
36,
-53,
60,
13,
-71,
31,
40,
-27,
-2,
-48,
-22,
-28,
-35,
-32,
16,
15,
25,
53,
-39,
60,
20,
22,
5,
-31,
41,
0,
24,
-9,
84,
68,
-1,
58,
30,
0,
-18,
-69,
24,
-44,
-10,
-23,
2,
-44,
54,
-5,
40,
-33,
8,
18,
-2,
-56,
33,
31,
-50,
-72,
-43,
51,
-71,
-17,
21,
21,
-35,
-24,
0,
-16,
11,
-1,
39,
-33,
-15,
-19,
10,
-16,
-28,
21,
22,
-100,
-47,
-21,
53,
32,
-19,
-19,
41,
-41,
-37,
-4,
-21,
13,
25,
-10,
74,
43,
-40,
38,
30,
55,
-5,
4,
-27,
15,
16,
-43,
12,
16,
30,
-54,
-4,
-11,
0,
-43,
-26,
34,
35,
17,
-9,
-26,
-35,
12,
-7,
-2,
-41,
-24,
-21,
7,
55,
-16,
-8,
0,
23,
3,
66,
10,
10,
-2,
-28,
82,
-24,
56,
-4,
12,
2,
21,
5,
-13,
10,
-50,
-78,
21,
-16,
-4,
-29,
-41,
-9,
-48,
-31,
-9,
-14,
7,
-72,
-19,
-54,
21,
-1,
8,
-27,
-4,
17,
24,
42,
22,
8,
25,
-19,
-55,
-18,
-2,
-9,
8,
-45,
46,
11,
-10,
-14,
21,
44,
19,
8,
21,
5,
-28,
11,
-13,
-28,
11,
52,
-15,
35,
0,
10,
-18,
4,
-4,
-52,
-38,
-26,
51,
5,
-5,
23,
-30,
-33,
-36,
72,
55,
-56,
-31,
21,
35,
60,
15,
-9,
17,
15,
16,
18,
-94,
-38,
19,
15,
-61,
1,
-18,
-14,
8,
-26,
14,
-55,
-46,
-38,
-46,
7,
8,
35,
2,
-18,
-18,
1,
-28,
23,
15,
27,
41,
-53,
84,
12,
1,
25,
11,
-3,
18,
-61,
6,
2,
-24,
36,
15,
30,
14,
-27,
16,
17,
3,
60,
-4,
-19,
-68,
16,
-50,
0,
23,
-52,
27,
-34,
0,
7,
28,
23,
-24,
-41,
-40,
-20,
15,
17,
-24,
-43,
-49,
-2,
-67,
5,
14,
-46,
62,
7,
-12,
-30,
17,
46,
-50,
-7,
-12,
-41,
14,
52,
-41,
48,
-39,
-26,
59,
52,
30,
-33,
-12,
-43,
18,
43,
-20,
13,
-10,
42,
13,
0,
-2,
-17,
45,
-9,
-52,
10,
35,
7,
39,
16,
13,
-21,
-20,
-39,
-119,
3,
29,
24,
-15,
-12,
-40,
61,
14,
27,
-13,
-42,
-4,
-15,
16,
-25,
4,
14,
9,
43,
10,
43,
27,
21,
-36,
-25,
16,
30,
-3,
30,
11,
-31,
-24,
24,
1,
2,
-24,
20,
9,
57,
-56,
-26,
-27,
22,
-34,
16,
-8,
-6,
7,
-30,
16,
-40,
17,
3,
27,
-7,
-31,
-42,
-25,
-15,
40,
-14,
-31,
-19,
48,
-53,
90,
58,
17,
-58,
-10,
29,
8,
-32,
45,
34,
-5,
-19,
21,
24,
22,
-32,
-49,
-2,
33,
-22,
4,
2,
-24,
29,
-6,
-9,
7,
-21,
19,
90,
-42,
-13,
21,
-49,
1,
-24,
64,
27,
-22,
-33,
43,
0,
-51,
68,
34,
-12,
-20,
-6,
34,
-54,
-35,
-18,
44,
-31,
59,
24,
3,
-36,
-46,
44,
-75,
-55,
36,
68,
-19,
12,
-30,
-5,
23,
27,
92,
30,
-49,
-44,
21,
54,
-46,
15,
-9,
17,
53,
16,
15,
25,
47,
-3,
-13,
-29,
-49,
23,
-13,
-5,
-6,
47,
17,
-1,
11,
15,
54,
37,
-23,
5,
-12,
0,
4,
13,
-28,
25,
24,
-3,
-38,
29,
-28,
-9,
44,
67,
44,
-15,
44,
14,
-15,
-25,
0,
7,
-17,
-23,
-18,
-7,
-39,
30,
-55,
30,
4,
-16,
-15,
38,
-20,
16,
-22,
-48,
-61,
57,
-16,
-51,
6,
4,
11,
7,
52,
17,
2,
-17,
-19,
-4,
4,
-41,
17,
-8,
46,
16,
-11,
39,
42,
51,
-18,
-8,
2,
21,
1,
-42,
-10,
-39,
-20,
57,
-34,
18,
36,
-36,
-37,
16,
29,
-10,
-4,
-22,
-54,
-10,
-4,
13,
-10
] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Richard D. Schaff (Appellant) was charged with one count of attempted deliberate homicide, one count of aggravated kidnaping, two counts of sexual intercourse without consent, one count of sexual assault, and one count of witness tampering. Pursuant to a plea agreement, Appellant pled guilty to attempted deliberate homicide and witness tampering in exchange for the State’s dismissal of the remaining charges. Prior to sentencing, Appellant moved to withdraw his guilty pleas. The Thirteenth Judicial District Court, Yellowstone County, denied Appellant’s motion. The District Court thereafter sentenced Appellant according to the terms of the plea agreement. Appellant now appeals the District Court’s denial of his motion to withdraw his guilty pleas. We affirm.
¶2 The sole issue presented for our review is whether the District Court erred in denying Appellant’s motion to withdraw his guilty pleas.
BACKGROUND
¶3 On September 28, 1995, Appellant met V.F., a 14-year old girl, in downtown Billings and offered to drive her to the west end of town. V.F. accepted Appellant’s offer. Instead of taking V.F. to the west end, Appellant drove out to the country and began making sexual ad vanees toward her. Appellant fondled V.F.’s breasts, inserted his finger in her vagina, and forced her to perform oral sex. When V.F. refused to continue with oral sex, Appellant hit V.F., dragged her out of the truck, and stabbed her several times with a small knife. V.F. dropped to the ground and played dead. Appellant then dragged V.F. off the road to a grassy field and left her. Appellant wiped off his knife, washed his hands in a nearby stream, and drove away. V.F. managed to make it to a nearby house where she called the police. V.F. described her attacker and his truck to the authorities, who then disseminated the information to the local media. An anonymous tip led authorities to Appellant and he was later apprehended.
¶4 On October 19, 1995, Appellant was charged by information with one count of attempted deliberate homicide, one count of aggravated kidnaping, and two counts of sexual intercourse without consent. The information was amended on January 8, 1996, to include one count of sexual assault, and amended again on July 19, 1996, to include one count of witness tampering.
¶5 On September 12, 1996, Appellant and the State of Montana (State) entered into a written plea agreement. Appellant agreed to plead guilty to attempted deliberate homicide and witness tampering in exchange for the State’s dismissal of the remaining charges. The State also agreed that it would bring no further charges against Appellant for any actions concerning V.F. or her family for any of the transactions then known to the State. Further, the State agreed to recommend that Appellant be sentenced to a prison term of 40 years, plus an additional consecutive term of 10 years for use of a weapon. The plea agreement provided that if the court did not accept the State’s recommendations for sentencing, Appellant could withdraw his guilty pleas.
¶6 A change of plea hearing was held on September 12, 1996. The District Court asked Appellant whether he had read the plea agreement and discussed it with his attorney to which Appellant replied that he had. The court informed Appellant that he was not required to plead guilty and that he was entitled to a jury trial. The court also informed Appellant of the State’s burden to prove his guilt beyond a reasonable doubt, and reviewed with Appellant his right to remain silent, his right to present witnesses on his behalf, and his right to confront witnesses against him. Finally, the court asked Appellant whether he was satisfied with the services of his attorney and Appellant replied that he was.
¶7 The court then questioned Appellant about the offenses to establish a factual basis for his guilty pleas. However, before Appellant answered, his attorney spoke up and informed the court that Appellant had been advised to keep his factual statements to a minimum so that, in the event Appellant later withdrew his guilty pleas, his basic right to remain silent would be preserved. Appellant’s attorney also explained to the court the nature of Appellant’s guilty pleas:
[Appellant’s] plea is, in fact, a compromise of what we perceive to be validly a contested case. We have done extensive investigation and research on this matter, and we do believe that while there is a substantial risk of conviction of the offenses to which he is pleading guilty, and perhaps a substantial risk of conviction on the other offenses as well, that he also had the opportunity to present lesser-included offense instructions and arguments to the jury, which could very well have proved persuasive. But in light of the overwhelming upside risk in this case, which would be somewhere around 520 years if all counts were proven and the court imposed maximum consecutive sentences, I have advised him frankly that this is a wise decision on his behalf, /aid with that proviso, Your Honor, Mr. Schaff is prepared to address your question.
The District Court and Appellant thereafter engaged in the following exchange:
THE COURT: Mr. Schaff, I understand the predicament that the court’s question poses to you; nonetheless, we do have to have a brief admission on the record as to what you have done in order that the court might be able to accept your plea of guilty, so—
MR. SCHAFF: Well—
THE COURT: —have at it.
MR. SCHAFF: I cut the victim and left her on the road.
THE COURT: Okay. Now, can you tell me — when you say you cut the victim, can you give me any more detail than that?
MR. SCHAFF: Cut her with a pocket knife.
THE COURT: Okay. Now, do you — if my recollection is correct, the affidavit in support of this references stabbing, I believe as opposed to cutting. Do you draw a distinction between the two or are you trying to make a distinction?
MR. SCHAFF: Not really.
THE COURT:. Okay. I mean, would the court be correct in assuming then that you are admitting that you did stab her on a number of occasions?
MR. SCHAFF: Yes.
THE COURT: Was it your intent to do that?
MR. SCHAFF: No.
THE COURT: I don’t mean intent to commit deliberate homicide, was it your intent to stab her? Was it some sort of accident?
MR. SCHAFF: No, it wasn’t an accident.
The State then interjected with the following offer of proof:
ATTORNEY FOR STATE: As to Count I, the State — for the attempt of deliberate homicide, the State had intended to introduce in excess of 100 exhibits as to this count, including hairs and articles of clothing. Specifically, the State would have introduced the hairs examined by the state crime lab, an expert would testify that microscopically those were of the victim, who is a minor.
And that that hair was cut hair, not pulled out by the roots, and not fallen hair, but hair that had been cut from a sharp instrument. That hair was found in defendant’s vehicle. In addition, the minor victim’s article of clothing, specifically a flannel shirt, was examined by the state crime lab and it would have had eight slits caused by a sharp instrument within that article of clothing and would examine — those would have been around the shoulder and neck area.
In addition, the emergency room physician, Dr. Theade of St. Vincent, treated the minor child and would have testified that she suffered from wounds committed by those consistent with a sharp instrument like a knife. She would also testify that those wounds were superficial and not life threatening.
However, if we went to trial the minor victim would have testified, and that would have been an issue of fact for that jury. Her testimony would have been that she played opossum after the attack took place, and she played dead. And the defendant eventually left her alone in the [sic] an isolated area southwest of Montana, but in Yellowstone County.
¶8 The court further questioned Appellant concerning the factual basis of the charge of witness tampering. The court then explained the maximum penalties for the offenses under the sentencing guidelines and informed Appellant of his right to withdraw his guilty pleas if the court ultimately refused the State’s recommendations for sen tencing. Upon Appellant’s indication that he was sober, that no threats had been made to him, and that it was his desire to plead guilty, the court accepted Appellant’s guilty pleas and set the date for sentencing.
¶9 On November 12,1996, before his sentencing, Appellant filed a motion to withdraw his guilty pleas. At the hearing on the motion, Appellant testified that he was not dissatisfied with his attorney, but that he simply made a wrong decision. Appellant testified that his attorney advised him of the possibility of a 520-year prison term if found guilty of the six felonies, but that a more likely prison term would be 110 years. Appellant testified that prior to entering the plea agreement, he had reviewed V.F.’s statement and the other evidence and was informed of the strengths and weaknesses of the State’s case. Appellant testified that although he believed V.F. was lying, he went ahead and signed the plea agreement out of fear that the jury would find him guilty and that the court would impose a lengthy sentence.
¶10 Appellant further testified that the plea offer was made available for only one day and that he felt pressured to accept it. However, Appellant also testified that he and his attorney discussed plea negotiations a few days prior to the State’s formal plea offer, and that during these preliminary negotiations, the State indicated the possibility of a 50-year sentence. Appellant testified his attorney told him the decision was his to make. Finally, Appellant informed the court that the State had not yet fulfilled its obligation of dismissing the four remaining charges.
¶11 In his brief in support of the motion to withdraw the guilty pleas, Appellant emphasized that he never admitted an intent to kill VF. and argued that there was no factual basis for his guilty plea to attempted deliberate homicide. Appellant further argued that because the State had not yet dismissed the remaining four charges, he had not received the benefit of the bargain and no prejudice to the State existed by permitting him to withdraw his guilty pleas.
¶12 On December 13, 1996, the court denied Appellant’s motion. In its memorandum and order, the court found that Appellant “had plenty of time to consider the State’s offer” and concluded that Appellant’s plea was not involuntary simply because he was afraid he would receive a much longer sentence if he went to trial. The court applied the three-part test announced in State v. Huttinger (1979), 182 Mont. 50, 54, 595 P.2d 363, 366, to determine whether Appellant should be allowed to withdraw his plea. The court found that Appel lant “entered his guilty plea voluntarily and with a full understanding and waiver of his rights.”
¶13 On December 19, 1996, the court sentenced Appellant according to the terms of the plea agreement. Appellant filed his notice of appeal on January 10, 1997.
STANDARD OF REVIEW
¶14 “[I]t is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant.” State v. Bowley (1997), 282 Mont. 298, _, 938 P.2d 592, 595 (quoting State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206). To ensure voluntariness of a guilty plea, Montana law requires that before accepting the plea the district court must engage in a detailed inquiry of the defendant to ensure his understanding of the charge and the consequences of the plea. See generally Sections 46-12-204, 46-12-210, 46-12-212, and 46-16-105(1), MCA.
¶15 A district court may permit a defendant to withdraw his guilty plea at any time, before or after judgment, for good cause shown. Section 46-16-105(2), MCA. In Montana, there exists no statute or rule of procedure for district courts to apply when determining whether a defendant has shown good cause. Instead, each case is considered in light of its unique facts and is subject to the sound discretion of the district court. Bowley, 282 Mont. at _, 938 P.2d at 595.
¶16 Although the determination of good cause is discretionary, this Court has set forth some general principles to guide district courts in their analyses. One general principle is that “all doubts should be resolved in favor of a trial on the merits... and the discretion of the court should be liberally exercised in favor of life and liberty.” State v. McAllister (1934), 96 Mont. 348, 353, 30 P.2d 821, 823. See also State v. Enoch (1994), 269 Mont. 8, 18, 887 P.2d 175, 181; Huttinger, 182 Mont. at 55, 595 P.2d at 367. Another principle states:
A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered under some mistake or misapprehension.
State v. Cameron (1992), 253 Mont. 95, 101, 830 P.2d 1284, 1288 (emphasis supplied).
¶17 Appellant argues that the second principle is unduly restrictive and conflicts with the first principle. Appellant also asserts that the second principle is a misstatement of the law. Appellant traced the above quotation from Cameron to State v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 310 to Benjamin v. McCormick (1990), 243 Mont. 252, 256, 792 P.2d 7, 10 to State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716 to McAllister. Appellant discovered that Mesler misquoted McAllister. In McAllister, we stated:
A change of plea will ordinarily be permitted if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act, or if influenced unduly and improperly either by hope or fear in making it, or if it appears that the plea was entered under some mistake or misapprehension.
McAllister, 96 Mont. at 353, 30 P.2d at 823 (emphasis supplied). Our research reveals that this same mistake appears in State v. Haynie (1980), 186 Mont. 374, 380, 607 P.2d 1128, 1131. We believe the substitution of the word only for ordinarily significantly changed the application of the second principle from liberal to restrictive. Because the fundamental purpose of allowing the withdrawal of a guilty plea is to guard against the conviction of an innocent person, Bowley, 282 Mont, at _, 938 P.2d at 595, we believe the liberal application is the better one. Therefore, we undertake to correct the mistake. In the future, the two principles discussed above can be combined and succinctly stated as follows:
A change of plea will ordinarily be permitted if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act, or if influenced unduly and improperly either by hope or fear in making it, or if it appears that the plea was entered under some mistake or misapprehension. If there is any doubt that a plea is involuntary, the doubt should be resolved in the defendant’s favor.
McAllister, 96 Mont. at 353, 30 P.2d at 823.
¶ 18 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. Bowley, 282 Mont. at _, 938 P.2d at 595. To determine whether a district court abused its discretion in denying a defendant’s motion to withdraw a guilty plea, we consider three factors:
(1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea;
(2) the promptness with which the defendant attempts to withdraw the plea; and
(3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.
Bowley, 282 Mont. at _, 938 P.2d at 595; Huttinger, 182 Mont. at 54, 595 P.2d at 366.
DISCUSSION
¶19 Did the District Court err in denying Appellant’s motion to withdraw his guilty pleas?
A. Adequacy of the court’s interrogation
¶20 A judge’s interrogation of a defendant seeking to enter a guilty plea is sufficient if the judge:
"... examines the defendant, finds him to be competent, and determines from him that his plea is voluntary, he understands the charge and the possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the fact upon which his guilt is based.”
State v. Mahoney (1994), 264 Mont. 89, 94-95, 870 P.2d 65, 69 (citations omitted). Appellant only disputes that portion of interrogation requiring the court to establish a factual basis for his guilty plea to attempted deliberate homicide.
¶21 Appellant argues that the court failed to establish a factual basis for the guilty plea because he refused to admit that he intended to kill the victim, an essential element of the crime with which he was charged. Appellant points to the colloquy with the court where he admitted stabbing V.F. several times with a small knife but denied intending to kill her.
¶22 The State counters that a court need not extract an admission from the defendant of every element of the crime in order to establish a factual basis for the guilty plea. We agree with the State. Section 46-12-212, MCA, provides:
Determining accuracy of plea. (1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration. (2) A defendant who is unwilling to admit to any element of the offense that would provide for a factual basis for a plea of guilty may, with the consent of the court, enter a plea of guilty to the offense if the defendant considers the plea to be in the defendant’s best interest and a factual basis exists for the plea.
Section 46-12-212, MCA, does not require a defendant to establish every element of the offense charged in order for his guilty plea to be accepted. The statute does not preclude the State from offering proof that a factual basis exists for a defendant’s guilty plea. Rather, the statute simply requires that a factual basis for the defendant’s plea be established. We hold that the absence of an admission from Appellant concerning the mental state element of attempted deliberate homicide did not, of itself, render the court’s interrogation inadequate and his plea involuntary.
¶23 Appellant next attacks the quality of the evidence on which the court relied to establish a factual basis for the mental state element of the offense. Appellant argues that at best the State’s offer of proof demonstrates only that V.F. suffered superficial knife wounds, not that he intended to kill V.F. Appellant’s argument is not persuasive.
¶24 In State v. Sellner (1997), [286 Mont. 397], 951 P.2d 996, we stated:
Attempted deliberate homicide requires proof that Appellant had the purpose to cause the death of another human being and acted toward purposely or knowingly causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA. “Purposely” means it was the defendant’s conscious object to engage in that conduct or cause that result. Section 45-2-101(63), MCA. A person acts knowingly with respect to a given result when the person is aware of a high probability that the result will be caused by the person’s conduct. Section 45-2-101(34), MCA.
Sellner, [286 Mont. 397], 951 P.2d at 998. Where “purposely or knowingly” causing a result is an element of an offense, that element can be established if the result involves the same kind of harm or injury as contemplated by the defendant, although the actual degree of injury is greater than intended. Section 45-2-201(2)(b); State v. Rothacher (1995), 272 Mont. 303, 307, 901 P.2d 82, 85. In Montana, circumstantial evidence is an “acceptable and often convincing method of proving criminal intent.” State v. Brogan (1993), 261 Mont. 79, 89, 862 P.2d 19, 25-26 (citations omitted). “The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.” Section 45-2-103(3), MCA.
¶25 Appellant has presented no facts from which a credible argument could be made that when he stabbed V.F. eight times, he was not aware of a high probability that his actions would result in serious bodily injury to or the death of V.F. Appellant admitted stabbing V.F. several times and admitted that these acts were voluntary and not accidental. At the very least, Appellant’s admissions, coupled with over 100 exhibits and other circumstantial evidence to which the State referred in its offer of proof, provide a sufficient factual basis from which to believe that Appellant intended to inflict serious bodily injury to V.F. In fact, we do not view it a stretch to infer from the facts and circumstances of the offense that Appellant intended to kill V.F. The record shows that V.F. played dead and that Appellant dragged her to a nearby field and left her for dead. We hold that sufficient evidence was presented during the court’s interrogation of Appellant from which the court could establish a factual basis for the mental state element of attempted deliberate homicide. Thus, the first factor weighs heavily in favor of the court’s denial of Appellant’s motion to withdraw his guilty plea.
¶26 The State notes that although not labeled as such, Appellant’s plea was, in effect, an Alford plea, referring to North Carolina v. Alford (1970), 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162. In Alford, the United States Supreme Court held that when a defendant clearly expresses his desire to plead guilty despite his belief in his innocence, and the state demonstrates a “strong factual basis for the plea,” there is no constitutional error in accepting the defendant’s plea. Alford, 400 U.S. at 38, 91 S.Ct. 160. Appellant correctly points out that this argument was not made to the District Court. We will not address issues or theories raised for the first time on appeal. See Sections 46-20-104(2) and -701(2), MCA; State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97. Therefore, we decline to address this argument on the merits.
B. Promptness of motion
¶27 The District Court did not address factor two, the promptness of Appellant’s motion to withdraw his guilty plea. The record indicates that Appellant’s motion to withdraw his guilty plea was made before sentencing and within two months of the court’s acceptance of the guilty plea. Both Appellant and the State agree that Appellant’s motion was timely. Accordingly, the second factor weighs in Appellant’s favor.
C. Existence of a plea bargain
¶28 The third factor we must consider is the fact that Appellant’s guilty plea was the result of a plea bargain. Consideration of this factor is intended to prevent the parties to a plea agreement, either a defendant or the State, from escaping the obligations of the plea agreement after accepting its benefits. State v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 217; Bowley, 282 Mont. at _, 938 P.2d at 599 (citing State v. Allen (1981), 197 Mont. 64, 68-69, 645 P.2d 380, 382).
¶29 Appellant’s plea agreement provided that in exchange for Appellant’s pleas of guilty to attempted deliberate homicide and witness tampering, the State would dismiss with prejudice the remaining four charges at Appellant’s sentencing and would bring no further charges against Appellant for any actions concerning V.F. or her family for any of the transactions then known to the State. Appellant pled guilty to the two charges. However, at the time Appellant made his motion, the remaining four charges had not been dismissed because Appellant had not yet been sentenced. Appellant argues that because dismissal had not yet occurred, he had not received the benefits of his plea agreement. Thus, Appellant reasons, having fulfilled his part of the bargain, and having not realized the benefit of the bargain, he would not have escaped his obligations of the plea agreement after accepting its benefits, and no prejudice would have resulted to the State had he been allowed to withdraw his guilty pleas.
¶30 The State contends that Appellant received the benefit of the bargain when he pled guilty and insulated himself from further state action on the remaining and future related charges. The State further contends that just because the dismissal of the remaining charges had not yet occurred does not mean that Appellant had not received the benefit of his bargain. Finally, the State argues that “absent some legitimate infirmity in the plea process itself, a criminal defendant cannot simply change his mind and back out of an otherwise voluntary plea agreement.” We agree with the State.
¶31 The plea agreement here certainly conferred some benefits upon Appellant: Appellant avoided the consequences of six felony convictions, and the State refrained from bringing further charges against Appellant. We note that the third factor is resolved in the defendant’s favor when the State has in fact breached the plea agreement. See Bowley, 282 Mont. at _, 938 P.2d at 599. In this case, the State never breached the plea agreement. Nothing in the record suggests that at the time Appellant made his motion, the State would renege on the remainder of its obligation and refuse to dismiss the remaining four charges at sentencing. We note that after denial of Appellant’s motion, the State in fact fulfilled its obligations and Appellant was sentenced according to the plea agreement. Upon these facts, we resolve the third factor in favor of the court’s denial of Appellant’s motion to withdraw his guilty plea.
¶32 In sum, the three factors discussed above illustrate that no good cause existed for the court to allow Appellant to withdraw his guilty pleas. Although the promptness factor weighs in Appellant’s favor, the other two factors do not. The District Court’s interrogation was adequate in establishing a factual basis for. the guilty plea, and the Appellant’s guilty plea was the result of a valid and enforceable plea agreement with the State. The fact that the State had not yet dismissed the four remaining charges when Appellant made his motion to withdraw guilty pleas did not constitute a breach of the plea agreement on the part of the State. Nothing in the record suggests Appellant would not have received the full benefit of the plea bargain at sentencing.
¶33 Similarly, nothing in the record establishes that Appellant’s plea was based on a fundamental mistake, misapprehension, or misunderstanding to its consequences. Indeed, the record shows that Appellant weighed the evidence for and against him, considered the likelihood of convictions on all counts, and made a voluntary and intelligent decision to enter a plea agreement in order to avoid a lengthy sentence. “[A] plea agreement presupposes fundamental fairness in the process of seeming such an agreement between the defendant and the prosecutor ....” Bowley, 282 Mont. at _, 938 P.2d at 599. Fundamental fairness requires that Appellant not be allowed to withdraw his guilty plea.
¶34 We hold that the District Court did not abuse its discretion in denying Appellant’s motion to withdraw his guilty pleas.
¶35 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, NELSON and REGNIER concur.
|
[
5,
29,
-11,
34,
-85,
-50,
-51,
23,
-31,
-6,
19,
-2,
18,
13,
2,
-15,
-25,
-43,
6,
-3,
11,
-71,
-5,
14,
-70,
-33,
16,
-10,
-7,
0,
75,
34,
39,
-84,
26,
39,
49,
25,
-1,
27,
31,
16,
13,
-14,
-6,
34,
14,
-10,
-7,
-7,
54,
-23,
27,
-16,
25,
-17,
25,
13,
-12,
65,
17,
-41,
-14,
34,
-9,
-66,
29,
39,
19,
22,
9,
-12,
-50,
44,
19,
-10,
-5,
-10,
20,
63,
10,
5,
20,
-9,
20,
-31,
-21,
-43,
-31,
9,
33,
-18,
33,
-35,
29,
17,
-10,
-67,
13,
-30,
-36,
-44,
-17,
-2,
35,
7,
-9,
-23,
41,
26,
-7,
40,
-8,
-42,
-36,
-50,
-32,
2,
19,
-21,
-2,
58,
1,
65,
-8,
-26,
30,
-30,
42,
-21,
-27,
38,
31,
0,
49,
11,
-39,
-72,
26,
27,
-11,
-6,
4,
15,
18,
-14,
-13,
16,
-11,
74,
-26,
-6,
14,
-12,
4,
-29,
-31,
-28,
-36,
40,
50,
-48,
-55,
51,
-17,
32,
-5,
16,
5,
-3,
15,
42,
-47,
14,
58,
-3,
-56,
-33,
-2,
-33,
-9,
80,
0,
0,
-31,
13,
44,
2,
1,
-21,
-42,
17,
-11,
-66,
61,
18,
-3,
35,
29,
35,
60,
-34,
36,
6,
9,
-18,
-15,
-19,
81,
-8,
-1,
-1,
-5,
-16,
-2,
-24,
-21,
4,
-28,
-10,
8,
9,
-34,
48,
-19,
-30,
-31,
10,
-7,
-59,
35,
56,
14,
6,
-43,
10,
-37,
-39,
23,
0,
-13,
-54,
21,
32,
44,
3,
-19,
-41,
-53,
-14,
-22,
-22,
-7,
55,
-6,
-20,
-4,
-9,
-41,
-39,
-12,
-37,
42,
1,
-56,
20,
-25,
16,
-39,
-41,
-18,
-13,
40,
6,
-35,
-7,
15,
28,
15,
18,
31,
-8,
-18,
5,
-5,
11,
-61,
54,
-8,
-4,
10,
-41,
18,
-30,
95,
13,
16,
-66,
-14,
-47,
65,
-28,
-25,
-20,
0,
1,
35,
29,
-23,
-22,
-14,
-33,
-53,
16,
18,
16,
16,
2,
55,
-9,
-31,
-27,
0,
-45,
-24,
7,
-14,
-6,
-52,
7,
-30,
19,
-13,
15,
17,
-20,
-35,
-34,
4,
60,
-9,
-64,
37,
-9,
-45,
-9,
33,
68,
-27,
-21,
-1,
-40,
-21,
-24,
-30,
-15,
-34,
-46,
26,
-28,
38,
14,
-54,
-45,
-20,
-35,
59,
-14,
-10,
10,
-16,
-93,
0,
-4,
23,
-12,
48,
4,
-25,
41,
-31,
5,
44,
-4,
26,
50,
30,
-26,
-12,
19,
-25,
4,
39,
-15,
28,
-52,
0,
-6,
20,
-30,
2,
18,
83,
10,
-28,
-11,
-20,
-6,
-10,
28,
-1,
17,
34,
22,
-3,
-57,
-55,
-1,
-25,
10,
-3,
-8,
62,
16,
55,
50,
5,
0,
-17,
-2,
69,
22,
29,
-11,
9,
-9,
-54,
17,
-6,
0,
14,
-54,
3,
-5,
7,
-4,
-10,
6,
0,
-10,
50,
25,
2,
-13,
-12,
72,
12,
11,
14,
-36,
6,
-1,
-29,
-23,
30,
3,
0,
-41,
-39,
-30,
13,
-5,
-30,
23,
8,
33,
7,
45,
11,
35,
-3,
0,
66,
-20,
-13,
32,
23,
-73,
27,
4,
-5,
22,
-25,
14,
-41,
64,
33,
48,
36,
-17,
-5,
-34,
-42,
5,
-18,
-22,
58,
27,
-14,
-6,
43,
44,
-45,
-45,
-48,
23,
20,
-22,
-39,
30,
14,
38,
10,
-5,
-23,
0,
12,
-45,
-56,
10,
-37,
-24,
-43,
-44,
49,
6,
-15,
-23,
26,
-21,
0,
-40,
21,
-2,
5,
-4,
68,
40,
35,
21,
8,
-7,
39,
11,
27,
2,
37,
-14,
-6,
-38,
16,
18,
31,
-5,
8,
9,
-17,
4,
25,
-29,
-7,
0,
-49,
-12,
35,
20,
4,
-3,
-11,
43,
28,
42,
-16,
26,
-38,
-32,
57,
-21,
36,
-37,
27,
12,
37,
-6,
-39,
0,
10,
23,
0,
-19,
21,
31,
7,
40,
74,
-27,
-16,
-34,
-33,
8,
-4,
-42,
54,
21,
-5,
3,
-22,
-47,
-16,
-21,
-18,
-32,
32,
11,
14,
-32,
-30,
-20,
4,
-1,
-60,
17,
33,
60,
25,
-5,
32,
19,
-24,
-32,
22,
39,
8,
-8,
36,
65,
-21,
12,
-23,
-51,
8,
-5,
-1,
-28,
59,
8,
-6,
13,
8,
29,
0,
55,
-62,
-22,
-7,
12,
-1,
-33,
9,
-8,
53,
11,
-5,
-5,
25,
-39,
22,
-51,
16,
7,
11,
2,
-11,
-62,
-20,
28,
-3,
37,
17,
4,
16,
14,
1,
12,
62,
-23,
23,
-28,
-81,
-24,
-4,
-18,
-8,
-60,
-11,
0,
18,
-47,
10,
-2,
-8,
45,
-18,
-14,
-70,
-13,
-50,
-14,
-64,
11,
-52,
15,
-5,
-6,
25,
-68,
-30,
-39,
11,
20,
11,
36,
12,
58,
-24,
-7,
-44,
14,
31,
10,
-13,
-6,
-18,
-26,
-5,
6,
-18,
-37,
49,
-25,
57,
6,
43,
44,
1,
23,
66,
-9,
-48,
-19,
8,
24,
18,
-5,
0,
0,
52,
7,
62,
-2,
19,
-32,
-14,
33,
-29,
-36,
9,
11,
1,
-16,
9,
-2,
-63,
3,
-25,
-13,
-14,
17,
0,
21,
-1,
-4,
12,
6,
-3,
28,
12,
-15,
-10,
32,
-25,
-42,
29,
22,
5,
9,
14,
-8,
0,
27,
-7,
49,
11,
15,
10,
-33,
6,
-61,
-11,
-45,
32,
-16,
-47,
19,
17,
-18,
-5,
-41,
-14,
-47,
5,
57,
13,
1,
-46,
-8,
2,
56,
-15,
62,
-14,
34,
52,
-38,
72,
27,
75,
-33,
76,
7,
-3,
7,
-48,
-9,
0,
54,
-48,
35,
6,
15,
-36,
37,
-68,
-15,
-34,
5,
67,
-55,
-7,
-10,
-15,
-34,
28,
40,
-24,
-8,
-29,
-8,
-19,
-29,
-9,
-29,
7,
-11,
0,
-38,
-77,
-37,
-1,
-35,
-37,
-51,
6,
-37,
-24,
1,
-14,
38,
-20,
-13,
60,
1,
-5,
-33,
27,
-31,
43,
37,
-18,
16,
-3,
-7,
52,
31,
-11,
14,
-26,
-18,
38,
9,
-16,
24,
58,
41,
18,
16,
-68,
-15,
-72,
36,
10,
48,
-30,
-38,
-14,
56,
37,
6,
10,
36,
5,
12,
-34,
-9,
53,
33,
-9,
-64,
-38,
2,
31,
33,
-12,
66,
35,
-1,
28,
35,
-57,
-13,
-58,
18,
15,
47,
19,
15,
32,
13,
17,
69,
-41,
-19,
-34,
30,
-17,
1,
-18,
-22,
-6,
-59,
-4,
-17,
-23,
-44,
12,
111,
9,
25,
-59,
5,
9,
-2,
-16,
29,
-23,
-2,
8,
-73,
-1,
-76,
-42,
72,
-3,
-3,
-57,
0,
-33,
9,
20,
13,
14,
10,
-12,
-20,
19,
-41,
-35,
36,
5,
13,
-63,
-13,
60,
29
] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Defendant Bryan Steinmetz (Steinmetz), after pleading guilty to the charge of driving under the influence of alcohol in violation of § 61-8-401, MCA, appeals from the Findings of Fact, Conclusions of Law and Order of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress evidence of his field sobriety test results. We affirm in part and remand for further proceedings consistent with this Opinion.
¶2 The sole issue raised on appeal is whether the District Court properly denied Steinmetz’s motion to suppress evidence of his field sobriety tests the State administered at the investigative stop and on videotape at the detention facility subsequent to Steinmetz’s arrest.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 13, 1996, at approximately 1:50 a.m., Deputy Bill Michaelis of the Yellowstone County Sheriff’s Department was on duty and observed Steinmetz’s vehicle traveling with an inoperable left, rear taillight. Deputy Michaelis initiated a traffic stop, approached Steinmetz, informed him of the reason for the stop, and asked him to produce his driver’s license, registration and proof of insurance. Deputy Michaelis testified that he initially intended to issue Steinmetz a warning, but upon further observation, he asked Steinmetz to step out of his vehicle to perform a series of field sobriety tests including the Horizontal Gaze Nystagmus (HGN), walk-and-turn, and recitation of the alphabet. After Steinmetz performed the field sobriety tests, Deputy Michaelis arrested him for driving under the influence of alcohol (DUI) in violation of § 61-8-401, MCA, and transported him to the Yellowstone County Detention Facility in Billings, Montana.
¶4 Once at the detention facility, Deputy Michaelis videotaped the following investigative process. Deputy Michaelis began by reading Montana’s Implied Consent Law to Steinmetz who thereafter refused to submit to a breath test. Subsequently, Deputy Michaelis initiated field sobriety testing with the administration of the HGN, walk-and-turn, one-legged stand, and alphabet recitation. Upon completion of the field sobriety tests, Deputy Michaelis read Steinmetz his Miranda rights to which Steinmetz responded affirmatively that he understood his rights and he indicated that he would talk to Deputy Michaelis without his attorney present. After Steinmetz cooperatively answered all of Deputy Michaelis’s questions, Deputy Michaelis suspended Steinmetz’s driver’s license and issued him a 72-hour driving permit. In doing so, Deputy Michaelis explained the purpose of the temporary driving permit and made sure that Steinmetz had a ride home.
¶5 On February 23, 1996, Steinmetz pleaded not guilty to the charges of DUI brought against him in Justice Court. On April 17, 1996, Steinmetz filed a motion to suppress evidence of his field sobriety test results arguing that Deputy Michaelis coerced him into performing the field sobriety tests and that his recitation of the alphabet and counting during the field sobriety tests was testimonial and violated his right against self-incrimination. After receiving the State’s brief in opposition and conducting a hearing, the Justice Court denied Steinmetz’s motion to suppress on June 18,1996. On July 11, 1996, a jury convicted Steinmetz of DUI.
¶6 On July 16, 1996, Steinmetz filed a notice of appeal and requested a trial de novo in the Thirteenth Judicial District Court, Yellowstone County. Thereafter, on November 22, 1996, he renewed his motion to suppress and submitted a brief in support of his motion. The State again filed a brief in opposition on December 5, 1996, and on December 12,1996, the District Court conducted a hearing on the motion. On December 16, 1996, the District Court entered Findings of Fact, Conclusions of Law and an Order denying Steinmetz’s motion to suppress evidence of his field sobriety test results. In denying Steinmetz’s motion, the court concluded that Steinmetz was not entitled to be informed that he could refuse to perform field sobriety tests; that field sobriety tests are not searches protected by the federal or Montana constitutions; and that neither counting during the walk-and-turn test nor reciting the alphabet is testimonial in nature, and, thus, is not protected by the Fifth Amendment to the United States Constitution or by the Montana Constitution.
¶7 Subsequently, on December 20, 1996, Steinmetz changed his plea to guilty and the District Court sentenced him to ten days in the Yellowstone County Detention Facility, with nine days suspended based on certain conditions. However, the District Court stayed execution of this sentence pending appeal. Steinmetz appeals from the District Court’s denial of his motion to suppress and from his judgment and sentence.
DISCUSSION
¶8 On appeal, Steinmetz argues that the District Court erred when it denied his motion to suppress. However, he explains that he is not appealing the District Court’s conclusion that counting during the walk-and-turn test and recitation of the alphabet are not testimonial in nature, and, thus, are not protected by the Fifth Amendment to the United States Constitution or by the Montana Constitution. Rather, relying on State v. Nagel (Or. 1994), 880 P.2d 451 and State v. Maddux (Or.App. 1996), 925 P.2d 124, Steinmetz asserts that field sobriety tests do constitute a search protected by the Montana and federal constitutions. In this regard, he suggests that we should clarify our decision in State v. Purdie (1984), 209 Mont. 352, 680 P.2d 576, to explain that the issue in Purdie did not concern whether field sobriety tests constitute a search, but, rather, whether there must be an exception to the warrant requirement, such as consent. In this regard, Steinmetz maintains that he was coerced into performing field sobriety tests during his initial stop and at the detention facility due to both Deputy Michaelis’s failure to inform him of his right to refuse and his “demands” that Steinmetz perform the tests.
¶9 The State responds that under Purdie the District Court correctly concluded that field sobriety tests do not constitute a search protected by the Montana and United States Constitutions. In the alternative, the State argues that if this Court overrules Purdie, as Steinmetz suggests, we should adopt particularized suspicion, not probable cause, as the appropriate standard for permissible administration of field sobriety tests, as other jurisdictions have done including the Arizona Supreme Court in State v. Superior Court (Ariz. 1986), 718 P.2d 171. Further, the State asserts that Deputy Michaelis did not coerce Steinmetz into performing field sobriety tests either during the investigative stop or at the detention facility. Consequently, the State contends that we should affirm the District Court’s denial of Steinmetz’s motion to suppress evidence of his field sobriety test results.
¶10 We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Widenhofer (1997), [286 Mont. 341], 950 P.2d 1383, 1386 (citations omitted). Further, we will uphold the decision of a district court, if correct, regardless of the court’s reasoning for its decision. Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citations omitted). In the case at bar, Steinmetz does not argue that the District Court’s findings of fact are clearly erroneous. Rather, Steinmetz argues that the District Court incorrectly applied its findings of fact as a matter of law. After this appeal was submitted on briefs, we decided the case of Hulse v. State, 1998 MT 108, [289 Mont. 1], 961 P.2d 75. Because we give retroactive effect to judicial decisions, Hulse is applicable in the case sub judice although it was not available to the District Court at the time it ruled on Steinmetz’s motion to suppress. Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 162, 920 P.2d 108, 111 (citing Porter v. Galarneau (1996), 275 Mont. 174, 185, 911 P.2d 1143, 1150).
¶11 In Hulse, we addressed the issue of whether the district court erred when it denied Hulse’s petition to reinstate her driver’s license after she had been arrested for DUI and refused to submit to a breath test. Hulse, ¶ 16. In part, Hulse argued that the field sobriety tests she performed constituted a search within the meaning of both Article II, Section 11 of the Montana Constitution and the Fourth Amendment to the United States Constitution, and, thereby, implicated her individual right to privacy under Article II, Section 10 of the Montana Constitution. As such, Hulse asserted that this warrantless search must be supported by probable cause and exigent circumstances to be constitutionally valid. Hulse, ¶ 19. Hulse maintained that her right to be free from unreasonable searches and seizures was violated because her arresting officer lacked probable cause to administer the field sobriety tests, and, consequently, lacked probable cause to arrest her. Hulse, ¶ 19.
¶12 Relying on Nagel, 880 P.2d 451, People v. Carlson (Colo. 1984), 677 P.2d 310, and State v. Nelson (1997), 283 Mont. 231, 941 P.2d 441, we overruled our holding in Purdie that field sobriety tests are “merely observations” of a person’s physical behavior, and held that field sobriety tests constitute a search under the Fourth Amendment to the United States Constitution, and independently of the federal constitution, under Article II, Section 11 of the Montana Constitution. Hulse, ¶¶ 32-33. However, we adopted the rationale of the Arizona Supreme Court’s decision in Superior Court, 718 P.2d 171 (relying on Terry v. Ohio (1968), 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911), to hold that while field sobriety tests do constitute a search, to be constitutionally valid, these tests, like an investigative “Terry” stop, must be based upon particularized suspicion, not probable cause. Hulse, ¶¶ 36-38.
¶13 Additionally, we explained that, in certain instances, particularized suspicion for the initial stop may also serve as the necessary particularized suspicion for the administration of field sobriety tests, if the basis for the initial stop was such to lead an officer to believe that the driver was intoxicated. Hulse, ¶ 39. On the other hand, we also recognized that an investigative stop can take on the quality of an escalating situation:
As the Appellate Court of Connecticut explained:
Once a lawful stop is made, a police officer’s suspicions may become further aroused and the stop may become further prolonged and the scope enlarged as required by the circumstances, provided the scope of the investigation remains within the limits created by the facts upon which the stop is predicated and the suspicion which they arouse. Lamme, 563 A.2d at 1374 (citing Terry, 392 U.S. at 21-22, 29, 88 S.Ct. at 1879-81, 1883-84, 20 L.Ed.2d 889). For example, if an officer only observed an individual driving with a broken taillight and after making his initial stop he did not observe any signs of intoxication, he would not have particularized suspicion that the driver was driving under the influence, and, therefore, would be prohibited from administering field sobriety tests. By contrast, if an officer stops a driver for a broken taillight and upon approaching this driver the officer does observe signs of intoxication, e.g., the driver’s breath smells of alcohol, his eyes are bloodshot and glassy, or his speech is slurred, the officer would have a separate particularized suspicion that the individual was driving under the influence of alcohol, and, therefore, may administer field sobriety tests. If the driver should fail the field sobriety tests, the officer would then have probable cause to arrest this individual for driving under the influence of alcohol.
Hulse, ¶ 40.
¶14 Here, like the previously referenced example in Hulse, Deputy Michaelis stopped Steinmetz for driving with an inoperable, rear taillight. However, based upon further observation of Steinmetz, Deputy Michaelis asked Steinmetz to step out of his vehicle and initiated a series of field sobriety tests. Pursuant to our decision in Hulse, for these field sobriety tests to be a constitutionally permissible search, Deputy Michaelis must have had a separate particularized suspicion that Steinmetz was driving under the influence of alcohol. Hulse, ¶ 40.
¶15 However, we cannot address the constitutional validity of these field sobriety tests because Deputy Michaelis’s testimony during the suppression hearing was limited primarily to questions concerning whether he “coerced” Steinmetz into performing the field sobriety tests; he never testified as to what objective data established his resulting suspicion that Steinmetz was driving under the influence of alcohol. See Hulse, ¶¶ 41-42. Therefore, in light of our decision in Hulse, we remand to the District Court with instructions that it hold a hearing and determine whether Deputy Michaelis had a separate particularized suspicion that Steinmetz was driving while under the influence of alcohol before or as a result of his investigative stop for the inoperable taillight.
¶16 If the District Court finds that Deputy Michaelis had a separate particularized suspicion that Steinmetz was driving while under the influence of alcohol, the issue of whether Deputy Michaelis “coerced” Steinmetz to perform the tests by “commanding” rather than “asking” him to perform the tests is immaterial. That is, if Deputy Michaelis had this separate particularized suspicion, then his administration of the field sobriety tests during the initial stop was constitutionally valid. As such, his lawful request for and administration of these tests cannot, without more, be characterized as “coercion.”
¶17 Further, if the District Court finds that Deputy Michaelis had particularized suspicion to administer field sobriety tests during his investigative stop of Steinmetz, and, thereby, established probable cause to validly arrest Steinmetz for DUI, we conclude that Deputy Michaelis’s administration of field sobriety tests on Steinmetz at the detention facility was also a constitutionally permissible search. Having already arrested Steinmetz, Deputy Michaelis’s administration of the tests at the detention facility was supported by probable cause, a more stringent standard than particularized suspicion. Again, as such, his lawful request for and administration of these tests cannot, without more, be characterized as “coercion.”
¶18 As to the “without more” caveats of the preceding two paragraphs, nothing in the record demonstrates that Deputy Michaelis otherwise coerced Steinmetz into performing the field sobriety tests. To determine whether Steinmetz was coerced, we look to the totality of the circumstances. State v. Rushton (1994), 264 Mont. 248, 258, 870 P.2d 1355, 1361 (citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854). An accused’s knowledge of the right to refuse a search is only one factor to consider and is not determinative of voluntariness. Rushton, 264 Mont. at 258, 870 P.2d at 1361 (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875). However, “[t]he police do not have to warn a person of the right to withhold consent.” State v. Ellinger (1986), 223 Mont. 349, 354, 725 P.2d 1201, 1204 (citing Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048, 36 L.Ed.2d at 863). After reviewing the suppression hearing testimony of both Deputy Michaelis and Steinmetz concerning the initial stop as well as the videotape of the investigative process conducted at the detention facility, we see no evidence that Deputy Michaelis coerced Steinmetz into performing the field sobriety tests. Whether Deputy Michaelis asked or told Steinmetz to perform the tests, there is no evidence that Steinmetz’s “will ha[d] been overborne and his capacity for self-determination critically impaired. ...” Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.
¶19 Accordingly, we affirm the District Court’s denial of Steinmetz’s motion to suppress on the basis of the court’s rejection of Steinmetz’s argument that Deputy Michaelis coerced him into performing any of the field sobriety tests. However, in light of our decision in Hulse that field sobriety tests do constitute a search, we remand to the District Court the issue of whether the field sobriety tests that Deputy Michaelis administered during his investigative stop of Steinmetz for an inoperable taillight were based on a separate particularized suspicion that Steinmetz was driving while under the influence of alcohol.
¶20 Affirmed in part and remanded for further proceedings consistent with this Opinion.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.
|
[
17,
12,
28,
58,
-26,
-34,
-43,
42,
-56,
49,
-8,
-32,
37,
-5,
39,
-30,
8,
21,
-15,
-44,
12,
-34,
-8,
12,
-33,
-35,
-13,
47,
-22,
3,
16,
-6,
1,
-76,
42,
35,
31,
22,
22,
38,
29,
36,
-20,
-29,
-41,
-12,
-24,
-30,
-19,
17,
46,
-18,
-5,
15,
46,
23,
30,
18,
-32,
14,
-33,
14,
21,
28,
15,
-15,
8,
15,
-15,
-30,
11,
35,
-26,
9,
27,
16,
32,
12,
-10,
2,
-45,
7,
27,
30,
49,
-2,
-9,
-44,
22,
-16,
41,
3,
-38,
-44,
-58,
-22,
-19,
-48,
18,
30,
-39,
-19,
-15,
44,
-6,
0,
-70,
-5,
27,
-6,
4,
36,
15,
3,
-14,
-29,
-27,
48,
19,
6,
-2,
-26,
47,
37,
-43,
-69,
41,
-28,
-42,
-33,
-22,
15,
37,
-28,
-26,
4,
-29,
0,
-13,
25,
16,
25,
39,
16,
58,
24,
7,
23,
3,
2,
-14,
40,
0,
35,
-18,
-45,
13,
-28,
-33,
7,
4,
50,
-7,
29,
40,
26,
31,
4,
-51,
-44,
17,
-1,
-2,
16,
35,
-13,
7,
28,
20,
4,
-39,
25,
15,
13,
17,
-11,
7,
36,
7,
11,
-56,
34,
3,
-40,
-10,
19,
6,
10,
5,
-32,
-29,
11,
5,
14,
13,
43,
-15,
27,
58,
16,
0,
-17,
16,
-24,
-15,
-66,
0,
-9,
-11,
-16,
3,
-38,
15,
-3,
-29,
-28,
-1,
15,
-72,
-11,
-1,
-9,
53,
9,
-3,
5,
39,
-30,
35,
-7,
8,
-19,
5,
2,
47,
2,
-41,
-31,
2,
-21,
-6,
-22,
2,
-13,
-33,
-10,
63,
-10,
13,
-9,
37,
18,
39,
18,
-85,
-9,
-15,
6,
25,
33,
-33,
3,
8,
-47,
-38,
-6,
4,
17,
2,
51,
42,
-27,
-19,
36,
-30,
-13,
-35,
23,
-18,
7,
-7,
-50,
-74,
-23,
14,
-46,
-3,
5,
-32,
0,
43,
10,
-39,
68,
-27,
-28,
2,
50,
28,
1,
57,
-2,
-30,
43,
18,
19,
-26,
-14,
44,
-4,
-43,
-8,
7,
-27,
-26,
-20,
-44,
10,
11,
-17,
-4,
46,
-10,
49,
4,
-27,
11,
1,
18,
44,
-32,
-33,
8,
29,
-28,
61,
11,
24,
-15,
-43,
-15,
24,
64,
-13,
0,
-27,
-7,
-60,
40,
-34,
1,
-51,
-27,
10,
19,
-10,
14,
-26,
-17,
-81,
-17,
-28,
4,
-38,
2,
15,
46,
-33,
-23,
-30,
10,
12,
11,
-63,
-7,
22,
43,
-3,
-33,
-24,
44,
17,
-23,
0,
-38,
-17,
-4,
5,
45,
-33,
8,
-12,
73,
8,
-2,
-16,
70,
29,
0,
-33,
-40,
1,
6,
13,
61,
27,
-24,
13,
-29,
-41,
-26,
-24,
-11,
0,
68,
4,
-10,
43,
25,
6,
28,
-4,
-5,
39,
-19,
-27,
0,
4,
27,
16,
-51,
-56,
-29,
17,
12,
-17,
-1,
-4,
15,
-20,
18,
2,
-7,
10,
-46,
65,
28,
-3,
-43,
-26,
-32,
2,
-8,
3,
29,
12,
11,
-69,
34,
13,
19,
-3,
-23,
-13,
-25,
18,
-44,
50,
-30,
-49,
-6,
-11,
15,
5,
11,
18,
-23,
-14,
-16,
22,
9,
15,
-1,
-4,
-67,
-22,
-14,
-5,
-5,
-8,
14,
-30,
-68,
37,
-17,
-35,
56,
54,
0,
20,
-12,
49,
-12,
-54,
-42,
-7,
-31,
-50,
-1,
13,
50,
33,
21,
-25,
-9,
23,
-13,
-66,
3,
4,
1,
16,
35,
-11,
20,
13,
45,
12,
-9,
-25,
35,
-34,
-36,
4,
15,
27,
10,
6,
69,
12,
63,
55,
0,
-7,
19,
-54,
7,
-4,
-32,
-8,
14,
-5,
1,
47,
0,
53,
-62,
1,
39,
-34,
-12,
48,
-33,
-13,
-4,
-6,
-14,
-28,
-50,
41,
40,
39,
-1,
6,
-43,
0,
69,
-22,
-23,
-70,
-6,
26,
7,
46,
-30,
13,
12,
-36,
-69,
-7,
9,
-5,
9,
21,
37,
-33,
35,
0,
19,
-8,
27,
35,
41,
28,
-41,
21,
-34,
-46,
0,
-1,
-13,
-24,
17,
5,
-33,
4,
-30,
12,
17,
-41,
-45,
-28,
-50,
-56,
14,
12,
-17,
31,
-52,
-30,
70,
27,
7,
6,
32,
5,
38,
28,
-15,
-17,
12,
-11,
-18,
-32,
-32,
37,
-6,
33,
21,
40,
35,
-3,
-49,
12,
1,
1,
-19,
-7,
24,
-2,
18,
-50,
-37,
3,
16,
-21,
48,
-29,
4,
34,
-15,
-61,
21,
-38,
36,
-27,
-20,
24,
49,
34,
-5,
78,
13,
33,
-3,
10,
5,
-20,
-41,
-33,
18,
12,
7,
5,
-6,
39,
-1,
-48,
-13,
19,
-17,
51,
-15,
-11,
-38,
-45,
17,
12,
-7,
11,
-39,
1,
-49,
30,
10,
-39,
-59,
-19,
19,
-28,
-16,
-12,
-1,
-3,
-53,
-12,
5,
-5,
18,
20,
-17,
10,
15,
20,
0,
0,
13,
20,
-11,
12,
35,
15,
34,
-23,
-30,
32,
49,
-10,
-38,
-17,
60,
4,
-43,
24,
-16,
-6,
19,
0,
33,
20,
14,
-27,
16,
-43,
-25,
14,
-13,
18,
0,
-51,
-2,
18,
-82,
-32,
4,
15,
-21,
36,
-23,
21,
-2,
-2,
44,
27,
17,
19,
16,
-14,
-29,
21,
11,
-31,
36,
8,
-11,
-3,
9,
4,
52,
18,
31,
27,
29,
-13,
18,
-58,
11,
-43,
0,
-85,
76,
-54,
-18,
9,
1,
11,
53,
-29,
11,
6,
-2,
15,
7,
-15,
-43,
-27,
17,
-25,
-4,
32,
-3,
39,
-12,
-4,
28,
29,
25,
0,
51,
39,
-12,
21,
-41,
-6,
-9,
14,
16,
30,
21,
66,
27,
2,
-17,
20,
-16,
-13,
63,
-1,
-44,
16,
-7,
-21,
54,
62,
-88,
27,
14,
-43,
-14,
9,
18,
-47,
7,
-9,
16,
-36,
-11,
18,
-15,
-30,
-32,
-4,
-22,
-11,
-40,
30,
-3,
16,
2,
-59,
7,
6,
-14,
47,
21,
-24,
50,
22,
15,
-10,
-45,
-2,
-23,
-16,
-34,
-75,
-63,
1,
12,
-13,
0,
64,
8,
50,
-3,
18,
-60,
-39,
-40,
36,
-30,
22,
2,
-37,
-34,
27,
5,
45,
34,
-56,
0,
-13,
-26,
82,
48,
47,
-13,
-20,
-73,
9,
-42,
11,
-50,
40,
5,
52,
-19,
-6,
-8,
4,
-35,
42,
9,
5,
-51,
-1,
28,
-21,
-20,
58,
-8,
31,
-44,
12,
-25,
46,
-17,
35,
34,
-3,
-38,
10,
29,
-27,
4,
15,
3,
2,
-40,
55,
-23,
4,
-37,
40,
-6,
25,
-15,
-58,
11,
-13,
27,
15,
-73,
-26,
44,
-1,
-15,
-3,
-43,
17,
18,
-20,
-2,
-51,
-5,
9,
35,
2,
-27,
46,
-59,
10,
-20,
14
] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Michael Bare appeals from the order and judgment of the Workers’ Compensation Court. The court dismissed Bare’s claim for permanent total disability benefits pursuant to § 39-71-702, MCA (1989), because he had failed to exhaust the rehabilitation panel procedures set forth at §§ 39-71-1012 through 39-71-1033, MCA (1989). We affirm.
¶2 The issue before this Court is whether the Workers’ Compensation Court erred when it dismissed Bare’s petition on the basis that it lacked jurisdiction to determine a claimant’s disability status under the 1989 version of the Workers’ Compensation Act prior to the exhaustion of the rehabilitation panel procedures.
¶3 On February 14, 1990, Bare injured his neck when he tripped and landed with his chin and neck on a package he was carrying. The injury occurred in the course and scope of his employment with United Parcel Service. The insurer, Liberty Mutual Fire Insurance Company (“Liberty Mutual”), accepted liability and paid Bare temporary total disability benefits through March 7, 1997.
¶4 On February 25, 1997, Bare requested a mediation conference regarding the issue of permanent total disability, which was held on March 18, 1997. When mediation did not resolve the dispute, Bare filed a petition for a hearing before the Workers’ Compensation Court, alleging that he was permanently, totally disabled. The court dismissed the petition on May 27, 1997, holding that the face of the petition showed a lack of jurisdiction because Bare had not exhausted the rehabilitation panel procedures. It held that its jurisdiction to determine whether a worker was able to return to work was limited to appellate jurisdiction over the Department’s final decision. It further concluded that it had original jurisdiction only when the Department determined that none of the return-to-work options set forth in § 39-71-1012, MCA (1989), were appropriate. It is from this order that Bare appeals to this Court.
¶5 In the meantime, however, Bare utilized the rehabilitation panel procedures and on June 10,1997, the panel found that the first appropriate return-to-work option for Bare was to “return to a related occupation suited to the claimant’s education and marketable skills.” Section 39-71-1012(2)(e), MCA (1989). On June 17, 1997, Bare appealed the Department’s initial order of determination. The record before the Court does not reflect whether the Department has entered a final order of determination or whether the Workers’ Compensation Court has heard or determined the matter. In any event, that case is not before this Court.
¶6 We review the Workers’ Compensation Court’s conclusions of law to determine whether its interpretation is correct. Gibson v. State Comp. Mut. Ins. Fund (1992), 255 Mont. 393, 396, 842 P.2d 338, 340 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). Additionally, it is well-settled that the statutes in effect on the date of the injury determine a worker’s entitlement to compensation benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Because Bare was injured in 1990, his claim is governed by the 1989 version of the Workers’ Compensation Act.
¶7 Bare argues that he was entitled to proceed directly to the Workers’ Compensation Court with regard to his claim that he was permanently totally disabled. He contends that by dismissing his petition for a hearing, the court ignored the fact that it has exclusive jurisdiction over the issue of whether he was entitled to benefits under the Act pursuant to § 39-71-2905, MCA (1989).
¶8 Liberty Mutual, on the other hand, contends that although broad, the jurisdiction of the Workers’ Compensation Court is not without limits. It maintains that the rehabilitation panel process embodied at §§ 39-71-1001 through 39-71-1033, MCA (1989) is a dispute resolution mechanism which the parties were required to satisfy prior to filing a petition with the Workers’ Compensation Court. Section 39-71-2905, MCA(1989). Although the statutes are not a model of clarity, we agree with Liberty Mutual’s analysis.
¶9 The Act provides that a claimant may petition the Workers’ Compensation Court only after “satisfying dispute resolution requirements otherwise provided in this chapter.” Section 39-71-2905, MCA (1989):
A claimant or an insurer who has a dispute concerning any benefits under chapter 71 of this title may petition the workers’ compensa tion judge for a determination of the dispute after satisfying dispute resolution requirements otherwise provided in this chapter.... After parties have satisfied dispute resolution requirements provided elsewhere in this chapter, the workers’compensation judge has exclusive jurisdiction to make determinations concerning disputes under chapter 71, except as provided in 39-71-317 and 39-71-516. (Emphasis added.)
The words “this chapter” refers to Chapter 71 of Title 39, which includes the rehabilitation panel statutes contained at §§ 39-71-1001 through 39-71-1033, MCA(1989). We conclude that the rehabilitation statutes are such a “dispute resolution requirement.”
¶10 First, utilization of rehabilitation services is expressly required. In his petition, Bare claims that he is a “disabled worker” which is defined as “one who has a medically determined restriction resulting from a work-related injury that precludes the worker from returning to the job the worker held at the time of the injury.” Section 39-71-1011(2), MCA (1989). The Act specifically requires all disabled workers to use the rehabilitation services. See § 39-71-1014(1), MCA (1989) (“Rehabilitation services are required for disabled workers....”) (emphasis added). Hence, according to the plain language of the Act, Bare was required to utilize the rehabilitation services. See also Higginbotham v. Stoltze-Connor Lumber (1991), 248 Mont. 161, 167-68, 810 P.2d 295, 299 (stating that the rehabilitation statutes require the parties to follow the rehabilitation procedure and holding “[fjrom the date of remand the statutory procedures in the rehabilitation sections shall be followed.”)
¶11 The Act further elaborates on the steps a disabled worker must proceed through when using the rehabilitation services:
(1) If a disabled worker is capable of returning to work, the designated rehabilitation provider shall evaluate and determine the return-to-work capabilities of the disabled worker pursuant to 39-71-1012(2)(a) through (2)(d).
(2) If an insurer’s designated rehabilitation provider has determined all appropriate services have been provided to the disabled worker under 39-71-1012(2)(a) through (2)(d) and the worker has returned to work, the insurer shall document that determination to the department.
(3) If the worker has not returned to work as provided in subsection (2), the insurer shall notify the department. The department shall then designate a rehabilitation panel as provided in 39-71-1016 and refer the worker to the panel.
Section 39-71-1015, MCA (1989)(emphasis added). The Act thus required Bare, who has not returned to work, to eventually submit to a rehabilitation panel. The rehabilitation panel is charged in part with identifying the first appropriate rehabilitation option set forth in § 39-71-1012, MCA (1989). See § 39-71-1017(2)(a), MCA (1989). Nothing in the Act, however, prevents the panel from finding that none of the options are appropriate.
¶12 Upon receiving the rehabilitation panel’s report, the Department of Labor and Industry (“Department”) then issues its initial order of determination, either accepting or rejecting the panel’s findings and recommendations. Section 39-71-1018, MCA (1989). At that point, if a disabled worker such as Bare disagrees with the determination, he may submit written exceptions to the order and may ultimately appeal a final order to the Workers’ Compensation Court. Section 39-71-1018, MCA (1989).
¶ 13 In addition to being a requirement, the rehabilitation services also provides a mechanism by which the parties may resolve their dispute. The claimant and the insurer may resolve the dispute by agreement, § 39-71-1013, MCA (1989), or they may accept either the Department’s initial order of determination or the final order of determination after a hearing. In any event, they are not required to file an appeal with the Workers’ Compensation Court.
¶14 Bare contends that such an interpretation of these statutory provisions robs him of his right to a hearing before the Workers’ Compensation Court, which is charged with acting as a fact-finder to resolve such disputes. Unfortunately for the claimant, in Martelli v. Anaconda-Deer Lodge County (1993), 258 Mont. 166, 852 P.2d 579, this Court impliedly rejected Bare’s arguments. Martelli was decided under the 1987 version of the Act, which for all relevant purposes is identical to the 1989 version of the Act. In that case, Martelli suffered injuries during the course of his employment and proceeded through the rehabilitation panel procedures. Following a contested case hearing before the Department (then known as the Division), the Department issued a final order stating that an appropriate rehabilitation option pursuant to § 39-71-1012, MCA (1987) was for Martelli to return to a related occupation suited to his education and skills. Martelli, 258 Mont. at 167, 852 P.2d at 580. Martelli did not appeal the order to the Workers’ Compensation Court as provided for in § 39-71-1018, MCA (1987). Instead, over one year later, he filed a petition directly with the Workers’ Compensation Court seeking permanent total disability benefits. Martelli, 258 Mont. at 168, 852 P.2d at 580. To the employer’s contention that he was required to have filed an appeal with the Workers’ Compensation Court in order to present the issue to that court, he, like Bare in this case, argued that the Workers’ Compensation Court has exclusive jurisdiction over the issue of his entitlement to permanent total disability benefits under the Act. Martelli, 258 Mont. at 168, 852 P.2d at 580.
¶15 This Court rejected Martelli’s position. The Court held that the doctrine of collateral estoppel precluded the court from determining the issue, because in order to determine whether Martelli was entitled to permanent total disability benefits, the Workers’ Compensation Court would first have to determine that he could not return to work in a related occupation suited to his education and skills, which was the return-to-work option already chosen by the rehabilitation panel. Martelli, 258 Mont. at 169, 852 P.2d at 581. Because the parties could not relitigate the issue, the Workers’ Compensation Court was bound by the Department’s determination that he could work in a suitable occupation. It thus could not determine that Martelli was permanently and totally disabled. Martelli, 258 Mont. at 169, 852 P.2d at 581.
¶16 Although the issue of whether the rehabilitation procedures must first be exhausted before the Workers’ Compensation Court has jurisdiction over a person’s claim to permanent total disability benefits was not directly at issue, the effect of the decision was to require exhaustion. Otherwise, nothing would have prevented Martelli from filing a petition for hearing before the Workers’ Compensation Court at any time. As the dissent in Martelli noted, the majority’s opinion limited the role of the Workers’ Compensation Court in determining disability benefits to that of an appellate court, even though the scope of review on an appeal would not be the equivalent of a full fact-finding hearing before the Workers’ Compensation Court guaranteed by § 39-71-2905, MCA. Martelli, 258 Mont. at 171-72, 852 P.2d at 582-83 (Trieweiler, J., dissenting). Although the author of this opinion joined with the dissent, Martelli is the law and we are bound to follow it.
¶17 Bare next argues that the legislature could not have intended to divest the court of jurisdiction, because by “artfully pleading” a petition, a claimant can easily “reinvest” the court with jurisdiction by presenting, an additional dispute over which the Workers’ Compensation Court does have original jurisdiction. Once the Court has acquired jurisdiction over the additional dispute, it would then have jurisdiction to decide all the issues that arise between the parties. See Carlson v. Cain (1985), 216 Mont. 129, 141, 700 P.2d 607, 615. That theory of course is speculation as it is applied to this case, and we need not address it today.
¶18 Finally, Bare maintains that requiring a party to exhaust the rehabilitation panel provisions will result in excessive litigation, because the Workers’ Compensation Court could reverse the Department’s decision and require him to resubmit his case to the Department. However, that is the nature of appellate procedure. The legislature expressly gave the court appellate jurisdiction over the final determination of the Department, and it is not the function of this Court to rewrite the statute simply because the process is cumbersome.
¶ 19 We hold that the Workers’ Compensation Court lacks jurisdiction to determine a claimant’s disability status under the 1989 version of the Act prior to the exhaustion of the rehabilitation panel procedures. In this case, Bare did not exh aust those procedures prior to filing the petition for hearing. Thus, the court did not err in dismissing his petition.
¶20 Affirmed.
JUSTICES GRAY, NELSON, LEAPHART and REGNIER concur.
|
[
-46,
-26,
-31,
83,
12,
-28,
-22,
-67,
-11,
-11,
10,
62,
30,
-34,
12,
-20,
-25,
49,
-31,
54,
7,
-14,
46,
43,
-22,
-53,
-19,
50,
-1,
56,
22,
-6,
33,
-20,
-35,
7,
-25,
-24,
-17,
29,
-2,
43,
-39,
-26,
-41,
-1,
50,
36,
19,
-28,
68,
15,
-39,
-1,
-4,
-12,
-29,
-13,
-34,
28,
19,
0,
51,
0,
37,
7,
24,
40,
-40,
58,
0,
-4,
-30,
-38,
-2,
-59,
-4,
28,
14,
-46,
15,
4,
-26,
-3,
-7,
42,
-7,
32,
-47,
2,
40,
-48,
15,
-2,
-37,
19,
43,
-22,
-38,
0,
-31,
31,
11,
7,
32,
-8,
20,
-16,
8,
17,
13,
56,
-49,
17,
-30,
21,
18,
0,
34,
105,
-4,
-21,
13,
-10,
19,
-17,
30,
9,
-13,
67,
13,
43,
7,
-22,
-17,
-34,
-40,
2,
15,
56,
-48,
-6,
29,
-59,
9,
5,
-16,
25,
32,
-41,
84,
-14,
44,
-59,
-22,
-7,
73,
-6,
1,
13,
22,
-30,
35,
55,
16,
11,
40,
13,
8,
-27,
26,
-36,
-3,
-40,
-38,
-14,
23,
25,
-18,
2,
-60,
9,
8,
10,
14,
-23,
-10,
-11,
56,
-18,
24,
-34,
-6,
25,
-33,
1,
30,
-1,
-3,
2,
-25,
-22,
2,
-53,
5,
63,
12,
-48,
35,
-5,
-12,
7,
39,
-51,
10,
-11,
37,
-54,
-16,
-7,
-10,
74,
-26,
-44,
-45,
-11,
-11,
13,
31,
-30,
-18,
2,
54,
63,
20,
1,
10,
-9,
63,
28,
24,
-11,
31,
-75,
-12,
17,
5,
2,
5,
-34,
-12,
17,
33,
-39,
-6,
7,
4,
5,
-35,
-48,
14,
23,
10,
23,
60,
-10,
0,
0,
5,
-23,
-37,
-7,
38,
-11,
-10,
-52,
41,
57,
44,
20,
-69,
34,
-23,
-29,
-36,
-6,
22,
-35,
-60,
7,
-1,
-20,
-4,
95,
21,
-35,
7,
18,
-35,
54,
27,
-17,
-30,
-1,
-13,
39,
-20,
7,
11,
-30,
29,
-12,
76,
-48,
16,
11,
23,
-13,
33,
5,
2,
46,
2,
-15,
13,
-72,
-65,
-23,
15,
-19,
-29,
10,
28,
37,
28,
9,
-43,
30,
24,
47,
-35,
-24,
64,
1,
-14,
-36,
30,
-8,
61,
72,
11,
30,
51,
-57,
4,
28,
13,
-78,
11,
42,
21,
33,
-23,
-22,
-42,
-1,
-5,
17,
-9,
-3,
-9,
-27,
29,
-74,
8,
-4,
-26,
10,
-14,
-2,
-5,
34,
28,
-16,
0,
25,
13,
-14,
30,
-39,
-16,
-23,
19,
108,
10,
18,
26,
-70,
10,
57,
-24,
4,
-26,
0,
2,
-56,
55,
-13,
-61,
9,
-8,
4,
16,
-55,
-51,
27,
7,
-17,
-14,
-27,
53,
-89,
3,
-34,
9,
-7,
-44,
57,
-46,
33,
-11,
-52,
-2,
-99,
-33,
-10,
42,
-88,
18,
25,
-50,
-49,
-50,
-9,
41,
7,
-19,
35,
21,
-25,
-7,
39,
53,
36,
-9,
-10,
6,
-17,
38,
-39,
-14,
-23,
-46,
6,
73,
-36,
-46,
51,
0,
-34,
14,
17,
30,
-23,
-18,
38,
-14,
-16,
-2,
12,
-19,
20,
-12,
20,
-33,
6,
-22,
-30,
41,
-3,
26,
-37,
41,
-10,
-9,
-41,
-50,
-32,
-13,
-50,
28,
-14,
-27,
12,
29,
-58,
3,
-37,
9,
-29,
-13,
11,
5,
61,
19,
7,
-68,
-14,
11,
26,
-2,
8,
6,
-12,
-12,
-50,
-62,
22,
26,
-73,
49,
-29,
26,
8,
17,
60,
13,
0,
-46,
-64,
-48,
-5,
-60,
51,
26,
-3,
45,
51,
31,
52,
10,
-25,
48,
6,
64,
-63,
6,
29,
32,
-22,
20,
19,
22,
68,
-24,
-4,
5,
45,
34,
-4,
-39,
20,
0,
-30,
25,
-6,
-24,
17,
-24,
-44,
22,
29,
0,
-33,
-60,
-75,
11,
-20,
-11,
-15,
-25,
-35,
10,
51,
40,
-5,
-44,
-40,
6,
7,
-34,
-26,
-27,
21,
27,
33,
26,
-43,
82,
23,
-44,
-18,
-35,
-40,
-64,
-69,
-17,
42,
27,
62,
-24,
73,
28,
45,
-15,
-52,
-21,
-5,
-4,
-25,
58,
12,
33,
-9,
5,
-11,
42,
-10,
23,
-22,
-3,
8,
38,
20,
-53,
-42,
34,
12,
-38,
-15,
-28,
71,
-63,
7,
-16,
-6,
19,
16,
-27,
24,
-56,
11,
-6,
-13,
23,
5,
-19,
-28,
-35,
4,
-1,
25,
33,
15,
67,
-48,
-18,
-65,
-22,
16,
-29,
-64,
37,
44,
-59,
40,
-39,
24,
-11,
-49,
-59,
50,
-13,
49,
29,
-15,
38,
-21,
-7,
13,
-48,
-7,
-16,
5,
-21,
71,
-4,
-20,
12,
3,
21,
-19,
-43,
-45,
64,
48,
-37,
-29,
-33,
-26,
-61,
-53,
-2,
40,
-1,
96,
-17,
-22,
19,
1,
-2,
41,
-9,
10,
-42,
-13,
-17,
43,
-13,
23,
50,
43,
35,
33,
31,
5,
-13,
-36,
49,
-25,
-12,
-50,
-19,
-57,
-8,
-36,
-26,
15,
-38,
23,
1,
-27,
24,
13,
-1,
25,
-10,
6,
-3,
-24,
-4,
29,
5,
-20,
-1,
1,
55,
-14,
-68,
-19,
-37,
-7,
16,
19,
-45,
-5,
-12,
-48,
-43,
3,
-128,
48,
-17,
-28,
44,
-59,
41,
4,
-33,
-14,
2,
81,
0,
0,
91,
0,
45,
-18,
36,
-42,
-8,
-1,
92,
78,
16,
-32,
66,
-11,
21,
-24,
-5,
-39,
-6,
-71,
24,
-19,
-52,
-6,
35,
18,
-58,
58,
-53,
13,
10,
7,
17,
18,
32,
7,
37,
21,
-54,
12,
36,
-43,
-16,
7,
-10,
10,
-71,
-17,
-2,
62,
-8,
-39,
33,
-5,
47,
-28,
64,
42,
-14,
35,
-20,
-4,
-55,
-3,
57,
-29,
18,
43,
46,
-102,
-46,
-29,
-65,
34,
29,
-32,
10,
-68,
-12,
3,
2,
-11,
28,
11,
-12,
-12,
8,
-10,
13,
-34,
-8,
7,
-14,
83,
18,
-42,
69,
56,
91,
34,
29,
32,
-16,
-30,
-7,
13,
-46,
3,
4,
17,
63,
6,
18,
5,
23,
4,
-11,
-7,
34,
0,
11,
-32,
-3,
-4,
4,
35,
-17,
-28,
19,
22,
27,
26,
0,
-26,
-23,
-40,
3,
-5,
31,
4,
-66,
-84,
-16,
-51,
-1,
62,
32,
-1,
30,
22,
-4,
-37,
5,
14,
7,
-3,
-66,
12,
17,
79,
-28,
17,
23,
-99,
-49,
-45,
-19,
21,
17,
-25,
-44,
7,
-34,
-13,
-28,
7,
9,
34,
7,
21,
34,
-66,
-30,
-41,
-73,
-20,
-21,
-3,
-4,
55,
-12,
-67,
-15,
6,
81,
2,
28,
16,
-19,
-17,
-5,
41,
16,
12,
25,
54,
65,
56,
20,
-33,
-19,
25,
-56,
-3,
-24,
-44,
41,
-66,
4,
-42
] |
JUSTICE GRAY
delivered the Opinion of the Court.
¶ 1 Rodney Joseph Sattler (Sattler) appeals from the judgment and death sentence entered by the Twentieth Judicial District Court, Lake County, on a jury verdict finding him guilty of the offense of deliberate homicide. Sattler raises both trial-related and death penalty-related issues and, pursuant to § 46-18-308, MCA, his appeal is consolidated with this Court’s automatic review of a death penalty case. We affirm.
¶2 We address the following issues:
¶3 1. Did the District Court abuse its discretion by limiting Sattler’s questioning of prospective jurors during voir dire?
¶4 2. Did the District Court abuse its discretion by refusing to allow Sattler to inquire into the reason the victim had been at the Pine Hills youth correctional facility?
¶5 3. Was there sufficient evidence to support the conviction?
¶6 4. Did the District Court commit reversible error in analyzing aggravating or mitigating circumstances?
¶7 5. Was the death sentence imposed under the influence of passion, prejudice or any other arbitrary factor?
¶8 6. Is the death sentence imposed disproportionate to the penalty imposed in similar cases?
¶9 7. Are the District Court’s findings regarding the existence of the aggravating circumstance set forth in § 46-18-303(2), MCA, and the nonexistence of any mitigating circumstances supported by the evidence?
BACKGROUND
¶10 On May 2, 1995, the State of Montana (State) charged Sattler by information with committing the offense of deliberate homicide in violation of § 45-5-102(l)(a), MCA. The facts alleged in support of the charge were that, on or about April 20, 1995, Sattler purposely or knowingly caused the death of Raymond Carl Martinson (Martinson) by beating him to death with a blunt instrument. Both were incarcerated in the Lake County Jail (Jail) at the time of the charged offense. Sattler had been convicted of deliberate homicide in 1987 and incarcerated in the Montana State Prison (MSP); he subsequently was moved to the Swan River Correctional Training Center (Swan River). At the time of the incident on which the deliberate homicide charge in this case was based, Sattler was being held in the Jail as the result of an attempted deliberate homicide committed by him at Swan River. Sattler pleaded not guilty to the charge in the present case and gave notice of his intent to rely on the affirmative defense of justifiable use of force, commonly called self defense.
¶11 The case was tried to a jury in Powell County in March of 1996. The undisputed evidence was that the altercation between Sattler and Martinson which resulted in Martinson’s death occurred shortly before midnight on April 20, 1995, in Cell 1 of the Jail’s Cell Block A and that Sattler inflicted a minimum of six blows to Martinson’s head and neck with a metal bar which had affixed the seat to an exercise bicycle located in that cell.
¶12 Each of the four cells in Cell Block A contained bunks and a combination sink and toilet. Cell 1 did not house any inmates, but was used as a common bathroom and exercise room by the inmates. Cell 2 housed five inmates, including Sattler, Martinson, and two inmates who testified for the State at trial. Cells 3 and 4 housed two and five inmates, respectively. The remainder of Cell Block A was composed of a common area containing a main room and a shower. Except during the period from approximately midnight to 6:00 a.m. each day, during which time the inmates were locked in their cells, inmates frequently sat at two picnic tables in the main room and watched television, played cards and the like.
¶13 According to the evidence presented by the State, jailer Luc Mathias (Mathias) checked on the inmates in Cell Block A at around 11:20 p.m. on April 20, 1995, and saw that a few of them were watching television in the main room; everything was quiet and seemed normal. About 20 minutes later, Darlene Healy (Healy), a dispatcher whose responsibilities included monitoring a surveillance and intercom system at the Jail, noticed Sattler pacing back and forth in the main room of Cell Block A. She did not see any other inmates in the main room at that time. Approximately 15 minutes later, someone pressed the intercom button in Cell Block A. When Healy pressed the button which allowed her to communicate with the caller and asked what the caller needed, the response was “Man down.” “Man down” was repeated. Healy advised Mathias of the message and called Lake County Deputy Sheriff David Alexander (Alexander). She continued to monitor the surveillance and intercom system; she did not see anything unusual, but thought she could hear someone trying to breathe.
¶ 14 Mathias went to the catwalk in front of the cell block, observed feet protruding from Cell 1, locked down all of the inmates and entered Cell Block A. He saw Martinson lying on his back in Cell 1. Martinson’s head was under the bunk opposite the door to the cell; he was lying in a lot of blood but was still alive. Mathias also noticed a bloody metal bar lying across the sink and the exercise bicycle. Mathias left the cell block and directed Healy to call an ambulance.
¶15 Alexander arrived, together with emergency personnel who also noticed that Martinson’s head was approximately three to four inches under the bunk. Martinson was transported to the local hospital and died there less than an hour later.
¶16 Inmate Dale Tammen (Tammen) testified that a number of inmates, including himself and Sattler, were watching television at the picnic tables shortly before midnight on April 20,1995. Martinson was there on and off. Tammen heard a “loud thump” from Cell 1, turned, and saw Martinson on the floor of Cell 1 slumped against the exercise bicycle with his legs facing back toward the bunks; Martin-son appeared to be unconscious and Sattler was standing over him looking down. Tammen noticed a large wound in the back of Martin-son’s head, and possibly another next to it. He saw Sattler spin Martinson around and lay him flat on the floor.
¶17 Tammen went briefly to his own cell, Cell 2, and then followed the other inmates to Cell 4, the cell farthest away from Cell 1. He heard a series of approximately five or six more “thumps” in rapid succession over a three- to five-second period. Soon thereafter, Sattler came to Cell 4 and directed the inmates to go to their cells. Sattler returned to the main room and began pacing, then went to Cell 2, laid down on his bunk and started reading a book. After borrowing a shirt from another inmate, Sattler took off his own shirt and wiped his feet with it. He then tore up his shirt and flushed it down the toilet; Tammen did not observe any injuries on Sattler when he changed shirts. After Sattler said it was okay to do so, Tammen pressed the intercom button and reported that there was a “man down.” According to Tammen, Sattler asked if any of the inmates had seen anything and if anyone was going to betray him.
¶18 While not identical, the testimony of inmate Jonathan Nunn (Nunn) largely corroborated Tammen’s version of the events at issue. He heard loud banging noises coming from Cell 1 which sounded to him like metal on metal. Similarly, inmate Leslie Butler (Butler) heard “thumping” noises while showering which sounded like “metal hitting metal.” On returning to his cell, Butler suspected something was wrong because Sattler was alone in the main room of Cell Block A.
¶ 19 Inmate Jody Law (Law) testified that the seat had been on the exercise bicycle in Cell 1 approximately an hour before the incident in question and was still there shortly before the incident when he went into Cell 1 to use the toilet. Sattler came into Cell 1 while Law was there and remained in the cell when Law returned to the main room. Upon his return to the picnic tables, Law noticed that Sattler had left his glasses on the table; this was noteworthy, in Law’s view, because Sattler “just never took [his glasses] off.” Law did not see anyone else go into Cell 1 after he left Sattler there but, “maybe a couple minutes” later, he heard a “scuffle going on behind” which started with kind of a dull thumping sound and then started sounding “like taking a pipe and hitting it against metal... or something.” Law looked into Cell 1 momentarily and saw no one; he noticed only that the exercise bicycle moved a little bit. He then saw Sattler come out of Cell 1, wiping his hands off on his shirt. Sattler went to Cell 2, then came to Cell 4, where the other inmates were gathered, and said only “Has anybody got a problem with that?” Like other inmates, Law could hear someone gasping for breath in Cell 1 while Sattler returned to the main room to pace.
¶20 Inmates described Sattler as intimidating, unpredictable, temperamental and the “boss” of the cell block. He was bigger than the other inmates. Martinson, on the other hand, was described as a smaller, nonaggressive “happy go lucky kind of guy,” who was quiet, wimpy, naive and a pest. Sattler apparently did not like Martinson very much and frequently would slap Martinson’s bunk to frighten him.
¶21 According to inmate Shannon Swimmer (Swimmer), Sattler’s attitude had undergone a change for the worse several weeks before Martinson’s death when Sattler learned he would be receiving a significant sentence on the attempted deliberate homicide offense which resulted in his placement at the Jail. Indeed, he and Sattler devised a plan to escape from the Jail and considered disassembling the exercise bicycle to use parts of it — including the metal bar to the seat — as weapons. They had gotten as far as removing the seat but had not removed the bar which held the seat — and which Sattler ultimately used to beat Martinson to death. Swimmer abandoned the escape plan upon receiving a lesser sentence than he had anticipated for his underlying offense.
¶22 On the morning of either April 19 or April 20,1995, Swimmer was to be transported to the MSR Before leaving he asked — and was permitted — to speak to Sattler. Swimmer testified that, during their conversation, Sattler indicated to Swimmer that somebody was going to die. Sattler pointed in the direction of Martinson or the other inmate sleeping on a top bunk in Cell 2. Swimmer could not tell whether Sattler was joking or serious but, in any event, he did not report the conversation to anyone at the Jail. He later told an investigator about the conversation, stating Sattler said he was going to “do” someone.
¶23 The State also presented evidence that there were no defensive-type wounds on Martinson and testimony — in addition to that of Tammen — that no signs of injury were observed on Sattler after the incident. Sattler did not claim to have been attacked or injured in the incident at the time. No identifiable fingerprints were found on the metal bar which inflicted the blows resulting in Martinson’s death, but blood spatter evidence was consistent with the State’s theory that most of the blows Martinson received were inflicted after his head was low to the ground in Cell 1.
¶24 Sattler testified on his own behalf as the only witness for the defense. He did not deny having caused Martinson’s death, but testified that he did so in self defense and not purposely. According to Sattler, he had been working out — during which he did not wear his eyeglasses — earlier in the evening of April 20, 1995, and then watched the David Letterman show on television with other inmates. When he entered Cell 1 to use the toilet, dropping his pants in preparation, he saw a person who turned out to be Martinson standing by the toilet. Sattler testified that Martinson swung at him with a weapon, that he went into a defensive posture, and that he was hit under the arm and on the left rib cage. He punched Martinson and they struggled over the metal bar Martinson had in his hands; Martinson went down on his knees and Sattler hit him again, but Martinson continued to come at him. According to Sattler, he had no intention of killing Martinson and did not think he had hit Martinson that hard; his only intent was to protect himself. Sattler’s version of the incident was that he struck Martinson on the top of the head a couple of times, Martinson hit the lower bunk pretty hard when he fell against it, and then Martinson hit his head on the floor.
¶25 Sattler also testified that he was not the “boss” of the cell block, admitted that he had slapped Martinson’s bunk on occasion, but denied that he had any problem with Martinson. He denied having had a conversation with Swimmer about Martinson when Swimmer was leaving the Jail, expressly denied telling Swimmer that he was going to kill anyone and, indeed, denied ever having had a conversation with Swimmer which lasted as long as the conversation Swimmer described.
¶26 The State presented six rebuttal witnesses. A Jail inmate testified about Sattler’s threats to inmates. In addition, the jailer who allowed Swimmer to talk to Sattler before being transported to the MSP testified that the conversation lasted about IV2 minutes, and the employee who transported Sattler to the MSP approximately 12 hours after the incident testified that he saw no swelling or bruising on Sattler during a pretransport strip search. Pat Warnecke (Warnecke), the chief juvenile probation officer in Flathead County, testified that he had known Martinson for years through his work and otherwise and that, in his opinion, Martinson was not considered a violent or particularly aggressive individual. Finally, Martinson’s widow testified that Martinson was nonviolent and that he would get upset and even cry if she got angry at him.
¶27 The jury found Sattler guilty of deliberate homicide and, thereafter, the State provided Sattler with formal notice of its intent to seek the death sentence. Following a sentencing hearing, the District Court entered its findings of fact, conclusions of law, judgment and sentence. The court found the existence of two statutory aggravating circumstances and no mitigating circumstances. The District Court sentenced Sattler to death and set an execution date of July 10, 1996. Sattler appealed and the sentence was stayed pending resolution of this appeal and automatic review.
DISCUSSION
¶28 1. Did the District Court abuse its discretion by limiting Sattler’s questioning of prospective jurors during voir dire?
¶29 During voir dire, Sattler’s counsel inquired of individual prospective jurors whether they thought someone in jail “would commit a homicide unless there was something that caused this to happen[.]” When this question was asked of the third prospective juror, the State objected that the question suggested the State had to prove motive. The District Court sustained the objection. We review such rulings for abuse of discretion. Hill v. Turley (1985), 218 Mont. 511, 520, 710 P.2d 50, 56.
¶30 Sattler contends that he had a right to voir dire on his defense of justifiable use of force and that the right was infringed by the District Court’s refusal to allow him to inquire about whether there must be a cause or reason to commit a homicide in jail. It is true that, where notice of a defense is given, a refusal to allow the defendant to voir dire prospective jurors on the defense constitutes prejudicial error. See State v. McKenzie (1980), 186 Mont. 481, 501, 608 P.2d 428, 441 (citing State v. Olson (1971), 156 Mont. 339, 480 P.2d 822), cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980). However, neither McKenzie nor Olson provides a basis for determining that the District Court abused its discretion in the present case.
¶31 In McKenzie, the trial court did not allow the defendant any voir dire regarding mental disease or defect and the defendant claimed prejudice on appeal. We concluded that the voir dire was properly prohibited because notice had not been given of reliance on the defense. McKenzie, 608 P.2d at 441. Here, notice of the defense was given and, therefore, McKenzie is not applicable.
¶32 In Olson, the defendant asserted an insanity defense and was denied the opportunity to voir dire on the subj ect. We determined that the defendant could not be assured of an impartial jury without questioning each prospective juror to see if he or she could understand and accept the insanity plea, and reversed the trial court. Olson, 480 P.2d at 825. Here, as in Olson, Sattler gave notice of the defense on which he intended to rely. Unlike in Olson, however, Sattler was permitted to voir dire on his defense of justifiable use of force. Indeed, he asked each prospective juror two questions directly related to the defense of justifiable use of force: first, whether a person has a right to defend himself against someone attacking him with a weapon; and second, the extent to which one could defend against an aggressor. These pointed questions regarding the defense properly sought to ascertain whether prospective jurors could understand and accept the defense at issue or, alternatively, whether they were biased against the defense from the outset.
¶33 The question disallowed by the District Court in the present case, however, did not relate directly to Sattler’s self defense theory. Instead, Sattler’s question about whether a cause or reason must exist to commit a homicide in jail suggested to prospective jurors that the State was required to prove motive, and Sattler concedes that the State need not do so. On the face of it, the question went beyond an attempt to determine whether potential jurors were biased against the justifiable use of force defense.
¶34 We conclude that the District Court did not abuse its discretion in limiting Sattler’s voir dire of prospective jurors.
¶35 2. Did the District Court abuse its discretion by refusing to allow Sattler to inquire into the reason the victim had been at the Pine Hills youth correctional facility?
¶36 As set forth above, Sattler testified that Martinson was the aggressor in the encounter. Thereafter, the State called Warnecke, the chief juvenile probation officer in Flathead County, as a rebuttal witness. Warnecke knew Martinson through his work and otherwise. In his opinion, Martinson was not considered a violent or particularly aggressive individual.
¶37 Prior to beginning his cross-examination of Warnecke, Sattler’s counsel asked for a bench conference at which he apparently sought permission to question Warnecke about Martinson having once been sent to the Pine Hills youth correctional facility (Pine Hills) for “molestation.” Sattler’s theory, apparently, was that “molestation” was a violent act and that evidence of Martinson’s prior acts of violence became relevant after Sattler had identified Martinson as the aggressor in the incident. The bench conference was not recorded and Sattler did not pursue the line of inquiry thereafter. Sattler contends that the District Court prohibited his line of questioning and that the ruling constituted an abuse of discretion and prejudicial error.
¶38 The State asserts that we cannot review this issue absent both a record of the bench conference, which Sattler did not ensure was made, and an offer of proof as to the specific facts which would have been proven by the offered evidence. Sattler contends he was unaware the bench conference was not reported and directs our attention to the fact that, during the settling of instructions, he advised the District Court that he wanted to make a record of his effort to question Warnecke about Martinson being sent to Pine Hills for “molestation” and of his theory that the molestation was an admissible violent act by Martinson. The District Court acknowledged Sattler’s earlier effort, agreed it had prohibited the questions in response to an objection by the State and directed that “[t]he record will so reflect.” According to Sattler, this record reflects the entirety of the bench conference which occurred prior to his cross-examination of Warnecke. Taking Sattler at his word, the record contains neither his specific legal argument for admissibility or the basis of the State’s objection and, as a result, it is deficient for purposes of appellate review.
¶39 Sattler asserts generally, however, that the offense for which Martinson was sent to Pine Hills was a sexual offense in which Martinson caused bodily injury or used threats, intimidation or force against the victim. As such, according to Sattler, Martinson’s offense was a “crime of violence” under § 46-18-104(2)(c), MCA, which constituted a specific instance of Martinson’s conduct admissible under Rule 405, M.R.Evid., as evidence identifying the aggressor in the incident. Rather than leave this issue unresolved, almost certainly necessitating our addressing it in a future collateral proceeding related to this death penalty case, we accept Sattler’s fact-related assertions about the nature of Martinson’s earlier violent act as true for purposes of this opinion only and address, on the merits, the arguments presented in Sattler’s opening brief that the District Court abused its discretion in precluding Sattler’s line of inquiry to Warnecke.
¶40 Sattler relies first on two cases which predated the July 1, 1977, effective date of the Montana Rules of Evidence — State v. Jones (1914), 48 Mont. 505, 139 P. 441, and State v. Logan (1970), 156 Mont. 48, 473 P.2d 833 — in arguing that evidence of the deceased’s reputation for violence is admissible when the issue is self defense and there is doubt as to who was the aggressor. He is correct that the cases stand for the proposition cited, but they are of no assistance to him in this case for reasons in addition to the fact that they predated the Montana Rules of Evidence.
¶41 In Jones, the defendant was charged with first degree murder, admitted the homicide and asserted the defense of self defense. Jones, 139 R at 443. On appeal, we addressed the issue of whether evidence that the decedent was reputed to be a turbulent, violent man was admissible for any purpose unless it was first shown to have been known to the defendant. We concluded that, when the issue is self defense and there is doubt as to who was the aggressor, evidence of the decedent’s reputation for violence is admissible in order to enable the jury to resolve the doubt. Jones, 139 P. at 446-47 (citations omitted). We reiterated that rule of admissibility regarding reputation evidence in Logan many years later, clarifying that the reputation evidence was not admissible until a proper foundation had been laid via the defendant’s testimony admitting the killing and raising the issue of the decedent being the aggressor. Logan, 473 P.2d at 841-42 (citations omitted).
¶42 As discussed, both Jones and Logan addressed the admissibility by the defendant of evidence regarding the decedent’s reputation for violence. Neither addressed the issue before us in this case, namely, the admissibility of “specific instance” evidence regarding the victim’s character by the defendant. Since Sattler was attempting to introduce the “molestation” incident by Martinson, rather than evidence regarding Martinson’s reputation for violence, Jones and Logan do not support his position that the District Court erred in excluding the evidence.
¶43 With regard to current evidentiary rules, Sattler cites to Rule 404, M.R.Evid., in support of his argument that evidence of Martin-son’s character for violence was admissible. As a general rule, character evidence is not admissible to prove action in conformity therewith. Rule 404(a), M.R.Evid. There are exceptions to the general rule, however, and one of those exceptions applies to the case before us. Under Rule 404(a)(2), M.R.Evid., “[ejvidence of a pertinent trait of character of the victim of the crime” is admissible when offered by the accused. Thus, Sattler is correct that evidence of Martinson’s character for violence was admissible in this case as a “pertinent” character trait vis-a-vis his justifiable use of force defense. That does not end the inquiry, however, because the question remains regarding the means by which Sattler was entitled to prove Martinson’s character for violence.
¶44 Where character evidence is admissible pursuant to Rule 404, M.R.Evid., character or a character trait can be proven through reputation evidence or specific instances of conduct evidence as expressly authorized in Rule 405, M.R.Evid. Sattler argues summarily that Rule 405(b), M.R.Evid., authorized him to introduce the specific instance of Martinson’s prior act of violence to support his claim that Martinson was the aggressor in the altercation between the two men. Rule 405(b), M.R.Evid., permits proof of character via specific instances of conduct in two situations: 1) where character or a trait of character of a person is an essential element of a charge, claim or defense; and 2) where the character of the victim relates to the reasonableness of force used by the accused in self defense.
¶45 With regard to the first circumstance outlined in Rule 405(b), we must look to the justifiable use of force defense to determine whether Martinson’s character for violence was an essential element of that defense. Pursuant to § 45-3-102, MCA, a person is justified in using force against another
when and to the extent that he reasonably believes that such conduct is necessary to defend himself ... against such other’s imminent use of unlawful force. However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself. ...
Nothing in the statutorily-defined defense relates directly to the question of the identity of the aggressor and Sattler cites to no authority under which the identity of the aggressor is an “essential element” of the justifiable use of force defense. His bare contention that Martinson’s character for violence was an essential element of his justifiable use of force defense does not make it so. We conclude that the “specific instance” evidence regarding Martinson’s prior violent act which Sattler sought to introduce through Warnecke was not admissible under the first circumstance set forth in Rule 405(b), M.R.Evid.
¶46 The second circumstance outlined in Rule 405(b), M.R.Evid., renders specific instances of the victim’s conduct admis sible where the victim’s character regarding violence or aggression relates to the reasonableness of the force used by the accused in self defense. In this regard, we need observe only that this was not the purpose for which Sattler sought to introduce Martinson’s prior act of violence. Indeed, as discussed above, Sattler sought to introduce the evidence to show that Martinson was the aggressor in the incident, not to support any claim that the force he used against Martin-son was reasonable based on his knowledge of Martinson’s history of violent acts. As a result, we conclude that the “specific instance” of Martinson’s conduct which Sattler sought to introduce through Warnecke was not admissible under the second circumstance set forth in Rule 405(b), M.R.Evid.
¶47 Sattler raises two new arguments relating to this issue in his reply brief. Legal theories raised for the first time in an appellant’s reply brief are outside the scope of such a brief and we do not address them. See Rule 23(c), M.R.App.P.; Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 512, 905 P.2d 158, 162 (citation omitted). To do so would tilt the balance in a case in favor of the party who gets the final word in presenting its arguments to this Court.
¶48 Moreover, while we have addressed this issue absent an appropriate record in order to resolve it now rather than later, we did so on the basis that the arguments presented in Sattler’s opening brief were those presented to the District Court during the trial of this case. Under the principles that guide all cases, a party may not change his theory on appeal from that advanced in the trial court. See State v. Fisch (1994), 266 Mont. 520, 524, 881 P.2d 626, 629; State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016. Nor may a party raise an argument for the first time on appeal. Jones v. City of Billings (1996), 279 Mont. 341, 347, 927 P.2d 9, 13 (citations omitted). Notwithstanding that this is a death penalty case, we are neither required, nor inclined, to allow Sattler to re-create both the record and his arguments not once, but twice. We decline to address these newly raised arguments.
¶49 Finally, we observe that any error in the District Court’s refusal to admit the evidence of Martinson’s prior violent act under Rule 405, M.R.Evid., would not necessarily have resulted in prejudicial and reversible error. Reversible error is error which affects the substantial rights of a party. See § 46-20-701, MCA; Rule 103(a), M.R.Evid. Here, even if Sattler were entitled to prove Martin-son’s character for violence via the specific instance of conduct under Rule 405, M.R.Evid., we conclude that exclusion of the evidence would not have affected Sattler’s substantial rights in light of the other evidence of record. Thus, the record here does not establish prejudicial error and, under § 46-20-701(1), MCA, a reversal is not warranted.
¶50 First, while Martinson’s act of “molestation” was relevant in that it had a tendency to make the existence of a disputed fact— whether, as Sattler testified, Martinson was the aggressor — more probable (see Rule 401, M.R.Evid.), the relevance was slight given the other evidence of record. It was clear from the circumstances of this case that Martinson was incarcerated in the Jail. In addition, the jury was aware that Martinson had been committed to Pine Hills during his youth and that he had been involved in an escape attempt when he was 14 or 15 years old. Furthermore, Warnecke testified that Martinson “could be” violent if armed with a weapon, as Sattler testified he was. Thus, whatever the specifics of the evidence of Martinson’s act of “molestation,” it would have been cumulative to other negative evidence about Martinson which was before the jury.
¶51 Moreover, whatever the nature of Martinson’s “molestation” act, it had occurred approximately eight years before Martinson’s death, by Sattler’s counsel’s own reckoning during oral argument, at a time when Martinson was in his mid-teen years. Therefore, the act was not only remote but potentially excludable on that basis. See State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565, 567. Even if not excluded on remoteness grounds, the lapse of time between Martinson’s “molestation” act and his death in 1995 rendered the probity of his act minimal at best.
¶52 We hold that the District Court did not abuse its discretion in refusing to allow Sattler to inquire into the reason the victim had been at Pine Hills.
¶53 3. Was there sufficient evidence to support the conviction?
¶54 The jury ultimately found Sattler guilty of deliberate homicide, which is defined in § 45-5-102(l)(a), MCA, as purposely or knowingly causing the death of another human being. In doing so, it implicitly rejected Sattler’s defense of justifiable use of force.
¶55 As is true in every criminal case, the State was required to prove Sattler’s guilt beyond a reasonable doubt. See § 46-16-204, MCA. Conversely, Sattler had the burden of producing sufficient evidence in support of his justifiable use of force defense to raise a reasonable doubt about his guilt. See State v. Daniels (1984), 210 Mont. 1, 16, 682 P.2d 173, 181. Like the elements of the charged offense, the elements of Sattler’s defense — that is, that he was not the aggressor, that he reasonably believed he was in imminent danger of unlawful force and that he used only such force as was reasonably necessary to prevent his own death or serious bodily harm (see § 45-3-102, MCA) — are factual in nature and are to be determined by the jury. See State v. Arlington (1994), 265 Mont. 127, 140, 875 P.2d 307, 314 (citation omitted). It is within the province of the finder of fact to weigh the evidence presented and determine the credibility of witnesses; in the event of conflicting evidence on factual issues, the trier of fact determines which will prevail. State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94 (citation omitted). Sattler argues that there was insufficient evidence to prove beyond a reasonable doubt that he acted purposely and knowingly in causing Martinson’s death in light of the evidence he presented in support of his justifiable use of force defense.
¶56 This Court reviews the sufficiency of the evidence to sustain a guilty verdict in a criminal case to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224 (citations omitted). Given our discussion above regarding the factual nature of the justifiable use of force defense and Sattler’s burden of producing enough evidence on the defense to raise a reasonable doubt, it is clear that our sufficiency of the evidence standard remains unchanged where, as here, we are reviewing a jury verdict which necessarily rejected the fact-based defense advanced. In other words, the question of whether the defendant produced sufficient evidence regarding the affirmative defense to raise a reasonable doubt as to his guilt is subsumed in the question of whether, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
¶57 As set forth above, a person commits the offense of deliberate homicide if he or she purposely or knowingly causes the death of another human being. See § 45-5-102(l)(a), MCA. A person acts purposely with regard to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in the conduct or cause the result. Section 45-2-101(63), MCA. A person acts knowingly with regard to a result when the person is aware that it is highly probable that the result will be caused by his or her conduct. Section 45-2-101(34), MCA. The purposely or knowingly mental state required to support a criminal conviction can be proved by direct evidence or inferred from circumstantial evidence such as the acts of the accused and the facts and circumstances surrounding the offense. See § 45-2-103(3), MCA; State v. Albrecht (1990), 242 Mont. 403, 413, 791 P.2d 760, 766.
¶58 On this record, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Sattler purposely and knowingly caused Martinson’s death. Factually, it was undisputed that Sattler caused Martinson’s death by inflicting blows to his head and neck area with a metal bar. Sattler admitted inflicting the blows which killed Martinson and the State’s medical examiner testified that one of the blows actually indented — or caved in — Martinson’s skull; the beating also was sufficient to bruise the brain. Notwithstanding Sattler’s testimony that he did not intend to kill Martinson, the nature of Martinson’s fatal injuries — together with Sattler’s awareness of his conduct and the jury’s ability to infer that he also was aware that there was a high probability that that conduct would result in Martinson’s death — was sufficient to support a finding that Sattler purposely or knowingly caused Martinson’s death beyond a reasonable doubt. See Arlington, 875 P.2d at 319. Also supporting the jury’s verdict that Sattler acted purposely or knowingly was the testimony from other inmates that Sattler had been annoyed with Martinson on numerous occasions, and Swimmer’s testimony that Sattler stated his intention to kill either Martinson or another inmate within 18 to 42 hours before Martinson’s death.
¶59 Sattler points to his denial that the conversation related by Swimmer took place. However, the jailer who permitted Swimmer to talk to Sattler prior to being transported to the MSP corroborated that a conversation between the two occurred. Sattler’s related argument that Swimmer’s testimony about the conversation was undermined by a conflict in the record about the timing of Swimmer’s transport to the MSP goes to Swimmer’s credibility, not to whether there was sufficient evidence regarding the requisite mental state to support Sattler’s conviction. Moreover, it was the job of the finder of fact — that is, the jury — to weigh conflicts in the evidence and determine witnesses’ credibility. See Flack, 860 P.2d at 94. We do not reweigh evidence or credibility here. Indeed, in determining whether a rational trier of fact could have found the essential mental state element beyond a reasonable doubt, we review the evidence in the light most favorable to the prosecution. See Richards, 906 P.2d at 224.
¶60 Sattler’s contention that the State did not present sufficient evidence of his mental state to enable the jury to find him guilty beyond a reasonable doubt of purposely or knowingly causing Martin-son’s death is not a model of clarity. He appears to argue that, because his testimony supported the existence of the elements of his justifiable use of force defense, the jury was obligated to find that a reasonable doubt existed regarding whether he had the requisite mental state for the deliberate homicide offense. As discussed above, however, the jury is free to weigh the evidence and determine the credibility of all witnesses in making its factual findings. We review the jury’s verdict only to determine whether it is supported by sufficient evidence, not to determine whether there was evidence to support a different verdict.
¶61 Nor do Arlington and State v. Popescu (1989), 237 Mont. 493, 774 P.2d 395, on which Sattler relies, support his argument that, having presented evidence on all three elements of his defense, the jury had insufficient evidence before it to find that he acted purposely or knowingly and to convict him of deliberate homicide. In Arlington, we cited to Popescu for the three elements which must be proved in order to establish the affirmative defense of justifiable use of force. Arlington, 875 P.2d at 318 (citation omitted). In Popescu, the issue on appeal was whether the defendant had introduced sufficient evidence to warrant submitting the justifiable use of force defense to the jury. We held that he had, reversed the trial court’s refusal to instruct the jury on the defense, and remanded for a new trial. Popescu, 774 P.2d at 396-97. That issue is not before us in the present case. Here, the District Court did instruct the jury on Sattler’s justifiable use of force defense and the instruction reflected its determination that there was sufficient evidence to warrant submitting the defense to the jury. Neither Arlington nor Popescu stands for the proposition that evidence sufficient to warrant submitting the justifiable use of force defense to a jury raises a reasonable doubt as to a criminal defendant’s guilt as a matter of law.
¶62 Finally, we observe that Sattler effectively conceded this issue in his reply brief on appeal. There, he stated that “it could not be said that the State had failed to prove it’s [sic] case ...”
¶63 We conclude that, on this record, the jury could have found the essential elements of the charged deliberate homicide offense beyond a reasonable doubt. As a result, we hold that there was sufficient evidence to support Sattler’s conviction.
¶64 4. Did the District Court commit reversible error in analyzing aggravating or mitigating circumstances?
¶65 After the State served formal notice of its intent to seek the death penalty, the District Court held the sentencing hearing required by § 46-18-301, MCA, to determine the existence or nonexistence of aggravating circumstances as set forth in § 46-18-303, MCA, and mitigating circumstances as set forth in § 46-18-304, MCA. It found that two aggravating circumstances and no mitigating circumstances existed. Accordingly, the District Court sentenced Sattler to death.
¶66 Sattler challenges the District Court’s determinations regarding both aggravating and mitigating circumstances. We consider his arguments in turn.
a. Aggravating circumstances
¶67 The District Court determined that two statutory aggravating circumstances existed: first, that the offense of which Sattler was convicted was deliberate homicide and it “was committed by a person serving a sentence of imprisonment in the state prison!,]” as set forth in § 46-18-303(1), MCA; and, second, that the offense was deliberate homicide and Sattler “had been previously convicted of another deliberate homicide[,]” as set forth in § 46-18-303(2), MCA. Sattler contends that the District Court’s determination that the offense was committed by a person serving a sentence of imprisonment in the state prison is erroneous as a matter of law, relying on State v. Keith (1988), 231 Mont. 214, 754 P.2d 474, and, as a result, that his death sentence should be vacated.
¶68 In Keith, the defendant pleaded guilty to six charged offenses, including aggravated kidnaping and deliberate homicide. Keith, 754 P.2d at 476-77. Keith was on parole from the state of Washington at the time of the offenses and, on that basis, the trial court ultimately determined that the § 46-18-303(1), MCA, aggravating circumstance existed. We reversed that determination on appeal, concluding that the statute expressly applied to a person serving “a sentence of imprisonment in the state prison” and that the plain language of the statute did not permit an interpretation which would include an individual on parole. Keith, 754 P.2d at 490.
¶69 Sattler contends that, because he was under sentence to the MSP at the time of Martinson’s death but physically present in the Jail as the result of a different charge, Keith bars application of the § 46-18-303(1), MCA, aggravating circumstance requiring that a person be serving a sentence of imprisonment in the state prison. The State argues, in response, that Keith addressed only the parole situation presented therein and did not preclude application of the aggravating circumstance in situations such as that presently before us where a defendant is temporarily housed at a county detention facility while still under sentence to a term of imprisonment in the MSR We need not resolve this dispute, however, because even if the District Court erred in finding that the aggravating circumstance set forth in § 46-18-303(1), MCA, exists and we disregard that circumstance accordingly, the error is harmless in this case.
¶70 As set forth above, the District Court determined that two aggravating circumstances existed in this case. The first is the “serving a sentence of imprisonment in the state prison” circumstance discussed above. The second is that contained in § 46-18-303(2), MCA, and undisputed by Sattler: namely, that the deliberate homicide was committed by a defendant — Sattler—who previously had been convicted of another deliberate homicide. The court also concluded that “either [aggravating circumstance] is sufficient to support the sentence to be imposed.”
¶71 In determining whether to impose a death sentence, a sentencing court in Montana must take into account the statutory aggravating and mitigating circumstances and “shall impose a sentence of death if it finds one or more of the aggravating circumstances” and no mitigating circumstances sufficiently substantial to call for leniency. Section 46-18-305, MCA. Thus, the District Court in this case was statutorily required to sentence Sattler to death upon the finding of the single aggravating circumstance that he previously had been convicted of a deliberate homicide and the absence of mitigating circumstances sufficient to call for leniency.
¶72 Nor, under a statutory death penalty scheme like Montana’s, must a death sentence be reversed or a new sentencing hearing conducted if one of several aggravating circumstances found to exist is subsequently held to be inapplicable. See Zant v. Stephens (1983), 462 U.S. 862, 873-80, 103 S.Ct. 2733, 2741-44, 77 L.Ed.2d 235, 247-52. Sattler does not contend otherwise. Indeed, he concedes that the death penalty still may be imposed under Zant so long as this Court ensures that the inapplicability of one aggravating circumstance does not render the death penalty arbitrary or capricious. Sattler goes on to argue that this death penalty is arbitrary or capricious, and we address his arguments in that regard in issue five below as part of our automatic review of the death sentence pursuant to §§ 46-18-307 through 46-18-310, MCA.
¶73 As noted above, the District Court concluded that the existence of either one of the aggravating circumstances was sufficient to support the death sentence in this case. That conclusion is correct under § 46-18-305, MCA, and, as a result, any error in the court’s determination that the § 46-18-303(1), MCA, aggravating circumstance exists in this case would not affect Sattler’s substantial rights or prejudice him. See § 46-20-701, MCA. Therefore, we hold that the District Court did not commit reversible error in analyzing the aggravating circumstances,
b. Mitigating circumstances
¶74 The District Court made extensive findings with regard to both the mitigating circumstances enumerated in § 46-18-304(1), MCA, and the “catchall” mitigating circumstances set forth in § 46-18-304(2), MCA. Indeed, its findings addressed each of the mitigating circumstances enumerated in the statute meticulously and methodically, set forth any evidence of record relating to each, and found whether or not the mitigating circumstance existed. Sattler advances a number of assertions of error relating to the District Court’s analysis of the mitigating circumstances.
¶75 Sattler’s first contention is that the District Court erred in considering every enumerated mitigating factor rather than only those he raised and relied on as mitigating circumstances. He cites to no authority in support of this assertion of error and it is clear that § 46-18-306, MCA, requires a court imposing a death sentence to make “specific written findings of fact as to the existence or nonexistence of each of the circumstances set forth in ... 46-18-304.” See also State v. Smith (1996), 280 Mont. 158, 167, 931 P.2d 1272, 1277, cert. denied 118 S.Ct. 410, 139 L.Ed.2d 314 (1997). We conclude that the District Court did not err in considering each of the mitigating circumstances enumerated in § 46-18-304(1), MCA.
¶76 Sattler also contends that the District Court improperly considered the lack of mitigating circumstances as justification for imposing the death sentence, contrary to § 46-18-305, MCA. This contention is entirely without merit. As discussed above, § 46-18-305, MCA, requires the imposition of a death sentence if one or more aggravating circumstances exist and there are no mitigating circumstances sufficiently substantial to call for leniency. In reaching that ultimate sentencing issue in this case, the District Court carefully performed the analysis of mitigating circumstances required by § 46-18-304, MCA, and found that no mitigating circumstances existed. Nothing in the court’s findings, conclusions, judgment and sentence supports the interpretation urged by Sattler.
¶77 Next, Sattler asserts that the District Court erred in failing to find the existence of the mitigating circumstance contained in § 46-18-304(l)(e), MCA, namely, that “[t]he victim was a participant in the defendant’s conduct or consented to the act.” The court found that there was no evidence that Martinson was a participant in Sattler’s conduct or consented to the act of being beaten to death by him. The court also found that “[t]he jury did not accept defendant’s claim of self defense and neither does the Court.”
¶78 Sattler’s argument seems to be that, notwithstanding the jury’s rejection of his self defense theory, the court was required to consider his testimony that Martinson was the aggressor as mitigating evidence under § 46-18-304(l)(e), MCA, that Martinson participated in or consented to Sattler’s acts which resulted in his death, and to make findings in his favor thereunder in sentencing. We observe at that outset that, as a matter of logic, Sattler’s argument is flawed because it mixes apples and oranges. The mitigating circumstance set forth in § 46-18-304(l)(e), MCA — that Martinson participated in or consented to Sattler’s act — would not exist even assuming arguendo the truth of Sattler’s testimony that Martinson was the aggressor. The reason is that, even under Sattler’s theory, Martinson’s acts were his own, as were Sattler’s. In other words, that Martinson’s acts may have produced Sattler’s responsive acts — in Sattler’s version of the events at issue — does not make Martinson a participant in or a consenter to Sattler’s acts of beating him to death. Therefore, Sattler’s self defense-related testimony that Martinson was the aggressor simply did not constitute evidence of the mitigating circumstance set forth in § 46-18-304(l)(e), MCA. As a result, the District Court was not obligated to consider it or to make findings relating thereto.
¶79 Nor is Sattler’s reliance on State v. Korell (1984), 213 Mont. 316, 690 P.2d 992, as legal support for this argument well placed. In Korell, the defendant was charged with attempted deliberate homicide and aggravated assault and gave notice of his intent to rely on a “mental disease or defect” defense to prove that he did not have the mental state required as an essential element of the offenses charged. Korell, 690 P.2d at 995. The jury found Korell guilty of both charged offenses and, on appeal, Korell argued that the trial court erred in not considering his mental condition at sentencing, as required by law, by stating that it would not revisit the jury’s rejection of the defense. Korell, 690 P.2d at 996, 1004.
¶80 We observed that the applicable sentencing statutes expressly required the sentencing court to consider whether the defendant suffered from a “mental disease or defect,” even where the jury had convicted the defendant. Indeed, the court could sentence the defendant to imprisonment only after specifically finding that the defendant did not suffer from such a disease at the time of the offense. Korell, 690 P.2d at 1000. In light of the statutes imposing an affirmative obligation on the sentencing court to independently evaluate the defendant’s mental condition, the court’s refusal to do so was erroneous and required that the sentence imposed be vacated and the case remanded for resentencing. Korell, 690 P.2d at 1004.
¶81 Korell is inapplicable here. There, statutes expressly required the sentencing judge to independently determine whether the defendant suffered from a mental disease or defect even after the jury had rejected the mental disease or defect defense. No similar statutes required the District Court in this case to independently evaluate Sattler’s self defense evidence after it had been rejected by the jury. Unlike the situation in Korell, the language setting forth the statutory mitigating circumstance relating to a victim participating in or consenting to a defendant’s acts is not similar, much less identical, to the language defining the justifiable use of force defense.
¶82 We conclude, therefore, that the District Court did not err in failing to make independent factual findings in Sattler’s favor — or at all — on the evidence Sattler presented on his justifiable use of force defense. We further conclude that the District Court did not err in failing to find that Sattler had established the mitigating circumstance set forth in § 46-18-304(l)(e), MCA.
¶83 Sattler’s next argument is that the District Court did not properly consider the “catchall” mitigating evidence he presented under § 46-18-304(2), MCA. The first purported mitigating evidence is that Sattler was kept at the Jail, rather than returned to the MSP, following his arrest for attempted deliberate homicide at Swan River; according to Sattler, this evidence reflected that he was not considered a danger to other inmates. Contrary to Sattler’s contentions, however, the District Court did consider that evidence, observing that persons accused of committing felonies within Lake County ordinarily are placed in the Jail to await the disposition of their cases. The court found that this evidence did not establish a mitigating circumstance under § 46-18-304(2), MCA, and we agree.
¶84 Sattler also argues that the District Court committed two distinct errors with regard to its finding “[t]hat the sentences imposed following the prison riot trials, referred to by [Sattler], do not constitute a mitigating circumstance as applied to this defendant and this offense.” Sattler first asserts that he referenced those sentences in relation to his “excessive or disproportionate” arguments under § 46-18-310(3), MCA, rather than as mitigating evidence. That may be so. Moreover, proportionality evidence is not properly considered by a sentencing court as a mitigating factor in performing the individualized sentencing required by §§ 46-18-303 and 46-18-304, MCA. Smith, 931 P.2d at 1282. Rather, it is within the province of this Court, with its statewide perspective, to conduct a proportionality review on automatic review of a death sentence “to prevent imposition of the death penalty in a wanton and arbitrary fashion.” Smith, 931 P.2d at 1282.
¶85 Here, Sattler referred to proportionality during the sentencing hearing and the District Court merely found that sentences in other cases did not constitute a mitigating circumstance with regard to Sattler and the deliberate homicide at issue. This determination is not at odds with our holding in Smith and it was, at most, an indication of the sentencing court’s caution and thoroughness in attempting to address all of Sattler’s arguments and evidence in the findings on mitigating circumstances.
¶86 Sattler’s second assertion of error relating to his reference to the prison riot cases, vis-a-vis his disproportionality argument, is that the District Court failed to address whether the death sentence in this case was excessive or disproportionate to the penalties imposed after the riot trials. He cites no authority under which the District Court was required to do so, however, and, as discussed above, Montana statutes and case law reserve the proportionality review to this Court. Sections 46-18-307 and 46-18-310, MCA; Smith, 931 P.2d at 1282.
¶87 Next, Sattler argues that the District Court did not consider either (1) the psychological report he presented, (2) that he came from dysfunctional family circumstances, as outlined in the presentence report, or (3) that the State was unwilling to negotiate away the death penalty as mitigating circumstances under § 46-18-304(2), MCA. It is clear that the court did consider the psychological report, as established by its finding that “said report has been fully considered by the Court.” Sattler advances no authority under which the fact that the sentencing court considered the report in relation to the mitigating circumstance set forth in § 46-18-304(l)(d), MCA, rather than as a mitigating circumstance under § 46-18-304(2), MCA, constitutes legal error.
¶88 Moreover, while the District Court’s findings on mitigating circumstances did not expressly reference either the family information contained in the presentence report or Sattler’s evidence of the State’s unwillingness to enter into a plea bargain that excluded the death penalty, the court indicated that it had considered all of the evidence and all of the circumstances of the defendant, including his character and propensities. The law does not require the sentencing court to make findings on each piece of purportedly mitigating evidence produced. See Smith, 931 P.2d at 1282-83. The law requires only that the court consider all such evidence and we must assume that it did so, particularly where — as here — the court so states. See Parker v. Dugger (1991), 498 U.S. 308, 314-15, 111 S.Ct. 731, 736, 112 L.Ed.2d 812, 822; Jeffries v. Blodgett (9th Cir. 1993), 5 F.3d 1180, 1197.
¶89 We conclude that the District Court did not err in analyzing mitigating circumstances.
¶90 5. Was the death sentence imposed under the influence of passion, prejudice or any other arbitrary factor?
¶91 This Court automatically reviews every death sentence imposed under Montana law. Section 46-18-307, MCA. In doing so, we determine “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor[.]” Section 46-18-310(1), MCA. Our review, conducted from a statewide perspective rather than from the individualized perspective the sentencing court must apply, serves as a check against arbitrary imposition of the death penalty. See Smith, 931 P.2d at 1282; State v. Langford (1991), 248 Mont. 420, 436, 813 P.2d 936, 948 (citing Gregg v. Georgia (1976), 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893).
¶92 Here, Sattler asserts that the death sentence was imposed under the influence of passion, prejudice or other arbitrary factors because the District Court imposed the sentence on the same day the sentencing hearing was held and because the sentence was based on Sattler’s lack of rehabilitation. Indeed, Sattler urges that the District Court improperly converted the lack of rehabilitation into an aggravating circumstance. We have reviewed the record and conclude that it does not indicate that the death penalty was imposed under any arbitrary influence.
¶93 With regard to the promptness of the District Court’s written findings, conclusions, judgment and sentence, the sentencing hearing in this case lasted only 1V2 hours and the evidence presented was neither extensive nor complex. The District Court recessed the hearing and indicated that it had drafted findings and conclusions to fit both a life sentence and the death sentence and would give its predrafted findings and conclusions full consideration, along with “the material that was introduced [at the sentencing hearing] and the court file and my notes.” Two hours later, the court reconvened and read its findings, conclusions, sentence and judgment in open court in Sattler’s presence. As discussed above, the District Court’s findings on aggravating and mitigating circumstances were thorough and detailed; further, they reflected that the court took the evidence before it into account in determining to impose the death penalty.
¶94 Sattler also contends that the District Court improperly used his lack of rehabilitation as the basis for imposing the death sentence and, indeed, converted that lack of rehabilitation into an aggravating circumstance. The record does not support this contention. First, the court’s findings and conclusions were confined to addressing the aggravating and mitigating circumstances set forth in §§ 46-18-303 and 46-18-304, MCA. On the basis of those findings and conclusions, the District Court entered its judgment and sentence imposing the death sentence on Sattler. In a later portion of the judgment and sentence, the court correctly quoted the correctional policy of this State as being “to protect society by preventing crime through punishment and rehabilitation of the convicted” (see § 46-18-101, MCA) and observed that, by his own conduct, Sattler had not taken advantage of the opportunities for rehabilitation provided via his prison term for the 1987 deliberate homicide. No legal or factual error exists in that portion of the judgment and, while a discussion of Montana’s correctional policy may not have been required, it certainly was not prohibited. That discussion does not support Sattler’s contentions that the death sentence was imposed because of his lack of rehabilitation and that the court improperly converted the lack of rehabilitation to an aggravating circumstance.
¶95 We conclude, on the record before us, that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor.
¶96 6. Is the death sentence imposed disproportionate to the penalty imposed in similar cases?
¶97 As noted above, this Court is required to determine whether the sentence of death imposed in a given case is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Section 46-18-310(3), MCA. In performing the proportionality review, we must reference the similar cases we considered. Section 46-18-310(3), MCA. Moreover, we examine only cases where the death penalty was — or could have been — imposed after conviction and which were appealed. See State v. Coleman (1979), 185 Mont. 299, 333-34, 605 P.2d 1000, 1020, cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980), sentence vacated, 874 F.2d 1280 (9th Cir. 1989); Smith, 931 P.2d at 1285. In this regard, we review “the gravity of the offense, the brutality with which it was committed, and the factors, if any, which led to a call for leniency ....” State v. Turner (1993), 262 Mont. 39, 59, 864 P.2d 235, 247 (citation omitted), cert. denied, 513 U.S. 827, 115 S.Ct. 96, 130 L.Ed.2d 46 (1994).
¶98 We observe that Sattler initially urged us to overrule the Smith limitation vis-a-vis considering only cases where the death penalty was, or could have been, imposed after conviction, and to take into account the so-called prison riot cases in which inmates at the MSP committed deliberate homicides but the death penalty was not sought or imposed. He withdrew that request at oral argument, however, noting that the 1997 Legislature amended § 46-18-310, MCA, to essentially incorporate the scope of proportionality review we set forth in Smith. See 1997 Mont. Laws, Ch. 302, Sec. 1.
¶99 With the proper scope of our proportionality review in mind, therefore, we must examine the proportionality of the death sentence in this case as compared with other cases appealed to us in which a deliberate homicide was committed by an incarcerated defendant and the death penalty was sought or imposed. It is undisputed that only two such cases exist and, because they arose from the same circumstances, we consider them together.
¶100 Douglas Turner and William Gollehon were charged with, and convicted of, deliberate homicide by accountability based on their having beaten Gerald Pileggi to death with a baseball bat while all three were incarcerated at the MSP. Turner, 864 P.2d at 237; State v. Gollehon (1993), 262 Mont. 1, 8-9, 864 P.2d 249, 254, cert. denied, 513 U.S. 827, 115 S.Ct. 95, 130 L.Ed.2d 45 (1994). The testimony at trial indicated that Pileggi died of multiple injuries to the head and trunk resulting from at least four blows, including one which was sufficient to cave in his skull. Turner, 864 P.2d at 238; Gollehon, 864 P.2d at 252-53. An inmate testified that Gollehon “had indicated that he was going to ‘mess [Pileggi] up.”’ The same inmate saw Gollehon start the fight with Pileggi in the exercise yard, watched the two struggle for control of the bat and then saw Turner arrive and join Gollehon in continuing to beat Pileggi after he fell to the ground. Gollehon, 864 P.2d at 253; Turner, 864 P.2d at 238.
¶101 The trial court sentenced both Turner and Gollehon to death. Regarding Turner, the court found the existence of two aggravating circumstances, namely, that Turner was serving a term of imprisonment at the MSP when he committed the offense and that he previously had been convicted of a deliberate homicide. It also found that Turner’s difficult childhood was insufficient to call for lenity under the circumstances. Turner, 864 P.2d at 246. With regard to Gollehon, the sentencing court found the existence of the same two aggravating factors and considered mitigating evidence of the inhuman and traumatic childhood to which he had been subjected, but determined that he had not taken advantage of available help in dealing with problems resulting from his childhood. Thus, the court ultimately determined that the family history evidence was not sufficient to preclude the death penalty. Gollehon, 864 P.2d at 260, 262-63.
¶102 The gravity and brutality involved in Sattler’s beating death of Martinson are substantially similar to the gravity and brutality of the offense committed by Turner and Gollehon. Here, as there, an inmate was attacked with a weapon and beaten to death by blows to the head and other areas of the body. Here, as there, at least one blow was sufficient to cave in the skull. Here, as there, the beating continued after the victim was down. Elere, as in Gollehon’s case, there was an indication in advance that the attack was going to be made.
¶103 Furthermore, Sattler — like Turner and Gollehon — had previously been convicted of a deliberate homicide and, while we have not resolved whether the second aggravating circumstance which existed in Turner’s and Gollehon’s cases applies here, it is clear that all three men were incarcerated at the time they committed their deliberate homicides. Finally, the evidence of mitigation on which Sattler premised his call for lenity was no stronger than that presented by Turner and less persuasive than that presented by Gollehon.
¶104 Sattler’s arguments that imposition of the death penalty in this case would be disproportionate to the death penalties imposed in Turner and Gollehon generally are based on his version of the facts rather than the version accepted by the jury. He also argues differ enees in the facts relating to the two offenses, such as that two persons were involved in the beating death of Pileggi, who was smaller than either of them. He does not explain, and we certainly cannot conceive, how the fact that Sattler — the “boss” of Cell Block A — acted alone in beating Martinson — a smaller, wimpy guy — to death renders the death penalty here disproportionate to those imposed in Turner and Gollehon.
¶ 105 Sattler also points to the fact that Pileggi was beaten to death in front of eyewitnesses, while Martinson was not. From this, he posits that the evidence against him was speculative and circumstantial. Again, this argument essentially relates to the jury’s weighing of the evidence in convicting him of the deliberate homicide, rather than to the proportionality of the death penalty in this case. Having concluded above that sufficient evidence exists to support the conviction, we need not further address these types of arguments.
¶106 Sattler also seems to argue that, absent the existence of both of the aggravating circumstances found in Turner and Gollehon, the death penalty is disproportionate here as a matter of law. He cites to no authority, however, in support of the proposition that disproportionality exists between death penalties when the number of aggravating circumstances in factually similar cases is not equal. Nor is that a matter within the scope of our proportionality review under § 46-18-310, MCA, Smith and Turner.
¶107 Finally, Sattler contends that, unlike Turner and Gollehon, he accepted responsibility for his acts and, as a result, the death penalty is disproportionate here. Without regard to whether a defendant’s acceptance of responsibility for the offense at issue is a proper consideration in our proportionality review, we reject Sattler’s premise. While it is true that Sattler admitted killing Martinson, he has continued to assert that he had a right to do so because he was defending himself. We do not equate continuing to assert a justifiable use of force defense — even after the jury has rejected it — with “accepting responsibility’ for a brutal deliberate homicide. Thus, we need not consider this contention further.
¶108 Having considered the offense and the defendant in the present case in proportion to the offenses and defendants in other Montana cases, we conclude that the death sentence imposed in this case is not excessive or disproportionate to the penalty imposed in similar cases.
¶109 7. Are the District Court’s findings regarding the existence of the aggravating circumstance set forth in § 46-18-303(2), MCA, and the nonexistence of any mitigating circumstances supported by the evidence?
¶110 Our automatic review of death sentences includes, in addition to the “arbitrary factor” and proportionality issues discussed above, whether the evidence supports the sentencing court’s findings regarding aggravating and mitigating circumstances. See § 46-18-310(2), MCA. This issue is separate and apart from the arguments relating to aggravating and mitigating circumstances which Sattler raised— and we resolved — in issue four above.
¶111 The District Court made a number of underlying factual findings relating to its ultimate finding that the aggravating circumstance contained in § 46-18-303(1), MCA — namely, that the deliberate homicide was committed by a person serving a sentence of imprisonment in the state prison — exists. The underlying findings are not only supported by the evidence, they are undisputed. As discussed above, we need not resolve here whether the court’s ultimate determination regarding this aggravating circumstance is correct because, even if incorrect, it was harmless. Nor need we address at length whether the evidence supports the District Court’s ultimate determination that the aggravating circumstance set forth in § 46-18-303(2), MCA — that the deliberate homicide was committed by a person previously convicted of a deliberate homicide — exists. It does and, indeed, this also is undisputed. Furthermore, the evidence supports the court’s findings regarding the nonexistence of other aggravating circumstances set forth in § 46-18-303, MCA.
¶112 With regard to whether the evidence supports the District Court’s findings on the existence or nonexistence of the mitigating circumstances enumerated in § 46-18-304, MCA, we conclude that it does. The only enumerated mitigating circumstance on which Sattler offered evidence or argument was the “participating in or consenting to” the homicide argument under § 46-18-304(l)(e), MCA. As discussed above, Sattler’s self defense testimony did not establish this mitigating circumstance as a matter of fact, logic or law. Thus, the evidence supported the District Court’s finding that this mitigating circumstance did not exist.
¶113 Sattler’s other evidence in mitigation was advanced under the “catchall” provision contained in § 46-18-304(2), MCA, and consisted of his family background, a 1984 psychological evaluation, and the fact that he was housed in the Jail, rather than returned to the MSP, upon being charged with attempted deliberate homicide while at Swan River. However, the mere introduction of evidence regarding mitigating circumstances does not require a finding that the mitigating circumstance to which the evidence relates exists.
¶114 We conclude that the District Court’s findings regarding the existence of the aggravating circumstance set forth in § 46-18-303(2), MCA, and the nonexistence of any mitigating circumstances are supported by the evidence.
¶115 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON and REGNIER concur.
|
[
36,
37,
19,
-19,
-71,
-30,
-38,
13,
-60,
37,
-22,
-15,
-5,
34,
52,
-48,
-11,
28,
-7,
4,
-11,
-27,
13,
-6,
-48,
-42,
-29,
-9,
-40,
-19,
44,
33,
47,
-48,
27,
32,
27,
-38,
-17,
61,
-25,
10,
5,
-16,
5,
31,
2,
-10,
-13,
-9,
13,
-10,
18,
-8,
15,
-11,
-4,
-10,
11,
34,
-26,
-54,
-24,
-35,
22,
-31,
5,
17,
-23,
27,
-58,
-21,
-22,
-11,
-22,
21,
12,
-7,
14,
0,
-56,
5,
6,
-19,
-16,
-58,
-29,
-78,
-39,
-5,
38,
12,
-25,
-2,
4,
-1,
25,
-25,
-25,
-37,
37,
-39,
-29,
18,
-29,
-6,
-49,
29,
45,
29,
19,
58,
-31,
20,
-6,
-14,
-17,
31,
28,
-10,
-3,
-11,
7,
2,
24,
-17,
40,
-2,
0,
-25,
-21,
32,
40,
-29,
7,
7,
-78,
-19,
2,
51,
-20,
48,
54,
-38,
8,
-12,
-30,
14,
3,
20,
8,
11,
22,
11,
23,
-101,
37,
-18,
-27,
33,
66,
-32,
-41,
18,
8,
29,
25,
0,
-14,
-42,
6,
17,
-3,
-1,
29,
-17,
-3,
-16,
42,
4,
1,
26,
31,
-20,
46,
40,
14,
-26,
14,
-29,
-19,
-8,
17,
-74,
56,
7,
39,
25,
7,
27,
8,
39,
38,
29,
-21,
-1,
-41,
-34,
7,
0,
48,
-27,
-10,
-13,
30,
3,
-29,
-16,
-14,
21,
-30,
41,
3,
-36,
-55,
-10,
-17,
59,
-34,
-50,
37,
1,
4,
4,
10,
3,
10,
-15,
-25,
-32,
-13,
-38,
37,
81,
26,
32,
-32,
-9,
-50,
-45,
-11,
-57,
24,
10,
8,
-8,
37,
-81,
-2,
-11,
0,
-47,
5,
13,
6,
-11,
11,
-58,
-18,
-36,
20,
-21,
12,
-4,
1,
2,
-3,
-27,
13,
-9,
70,
8,
11,
-61,
-39,
36,
-66,
26,
-51,
9,
2,
-59,
31,
15,
59,
-8,
22,
-96,
2,
-50,
63,
6,
7,
58,
28,
12,
-19,
0,
-29,
3,
36,
10,
-46,
26,
-11,
33,
-21,
-8,
101,
0,
-43,
-8,
1,
-51,
-40,
0,
-24,
-2,
-7,
15,
-20,
43,
5,
56,
32,
-12,
-30,
20,
43,
32,
-6,
-57,
-10,
-4,
-31,
19,
-7,
36,
-47,
-38,
33,
26,
-8,
-19,
-38,
6,
-34,
-32,
18,
-66,
28,
-18,
-64,
-13,
-37,
32,
-17,
-42,
-27,
-5,
8,
-28,
-11,
-36,
5,
34,
51,
3,
-6,
18,
-47,
24,
0,
-16,
-12,
34,
30,
4,
15,
5,
-12,
-10,
-8,
27,
-26,
-52,
-6,
32,
46,
-41,
-39,
24,
52,
-3,
8,
8,
-1,
16,
25,
0,
-14,
-19,
32,
0,
19,
-13,
-58,
-53,
-9,
-22,
70,
-14,
39,
-1,
40,
12,
3,
40,
-44,
-3,
47,
12,
1,
-8,
-34,
8,
-24,
58,
26,
19,
0,
-26,
1,
-18,
9,
-54,
12,
24,
30,
-24,
10,
9,
-6,
-14,
-18,
103,
-7,
-31,
20,
-3,
-28,
-7,
-42,
-14,
99,
-23,
-34,
28,
40,
-22,
0,
9,
-53,
13,
7,
1,
-1,
26,
43,
42,
-21,
-46,
-25,
37,
-6,
16,
-7,
-11,
25,
-4,
-13,
5,
-19,
-19,
-59,
38,
9,
39,
63,
-16,
-3,
-4,
-16,
21,
-2,
-54,
54,
-8,
0,
-50,
46,
27,
-17,
-34,
-47,
-9,
6,
-37,
-7,
16,
16,
-31,
10,
0,
-23,
-26,
-21,
-30,
-20,
-11,
20,
15,
-9,
-10,
31,
22,
-36,
-54,
11,
-31,
63,
-2,
34,
-18,
-15,
-16,
31,
-19,
43,
18,
29,
-18,
-13,
-29,
40,
-31,
7,
7,
10,
-37,
13,
27,
-14,
79,
23,
-1,
-49,
25,
56,
11,
5,
32,
-43,
-9,
29,
0,
-11,
-1,
7,
26,
31,
6,
-27,
32,
-30,
18,
36,
-2,
15,
-6,
-21,
0,
-3,
-18,
-69,
40,
7,
-18,
-6,
-31,
28,
61,
10,
8,
67,
-46,
-18,
-46,
-13,
-6,
-43,
-77,
3,
16,
2,
39,
11,
-48,
-70,
8,
-2,
-17,
14,
-26,
-3,
0,
-23,
-65,
14,
0,
-45,
21,
30,
-1,
-16,
7,
9,
-13,
-53,
9,
15,
37,
6,
-45,
1,
7,
10,
28,
-15,
-30,
40,
10,
30,
-31,
7,
-65,
1,
20,
20,
13,
25,
66,
-17,
10,
-30,
23,
-26,
-25,
-17,
44,
51,
-3,
-46,
-27,
-24,
0,
5,
-34,
27,
58,
-44,
7,
1,
-42,
61,
13,
-30,
25,
33,
48,
-14,
3,
41,
23,
45,
-18,
11,
13,
-50,
-8,
28,
27,
-31,
-82,
27,
21,
73,
-31,
0,
16,
-12,
34,
-2,
54,
-81,
14,
-73,
-9,
-64,
21,
-67,
-18,
-19,
-3,
66,
-23,
-4,
19,
6,
23,
8,
0,
-16,
61,
54,
38,
-17,
12,
-13,
-7,
-23,
22,
-5,
-19,
-10,
2,
4,
-52,
9,
12,
50,
23,
29,
20,
-45,
28,
72,
34,
-10,
10,
43,
17,
19,
1,
-38,
-40,
27,
-21,
28,
20,
19,
-14,
-62,
-10,
-40,
-28,
-24,
43,
-8,
-24,
-31,
45,
-40,
-10,
-5,
22,
-53,
28,
-37,
-4,
-10,
-18,
-8,
22,
70,
-8,
-10,
12,
-12,
39,
22,
38,
74,
18,
12,
23,
24,
-24,
26,
39,
4,
32,
22,
32,
43,
-47,
17,
-10,
29,
-1,
31,
-4,
16,
-22,
70,
-15,
6,
17,
-16,
-4,
16,
32,
-14,
34,
-17,
-14,
-16,
78,
-16,
-18,
6,
10,
7,
-2,
-9,
-38,
55,
-28,
-8,
5,
-2,
10,
-20,
-46,
-27,
7,
-68,
23,
-9,
82,
-22,
113,
-22,
-3,
-4,
22,
21,
0,
-26,
24,
-24,
30,
72,
14,
-78,
28,
-59,
35,
-38,
-29,
24,
-27,
47,
-11,
2,
-27,
-16,
1,
-25,
-37,
-62,
26,
-15,
-40,
-17,
-18,
-11,
32,
0,
-18,
22,
20,
38,
13,
84,
-28,
3,
17,
-3,
81,
-27,
8,
-8,
-2,
-19,
22,
-32,
-38,
84,
-15,
-52,
76,
25,
38,
13,
-27,
-50,
-36,
-50,
42,
-45,
8,
37,
-44,
-53,
33,
15,
-33,
-28,
-21,
-34,
-9,
-32,
2,
46,
38,
2,
-62,
-69,
5,
29,
22,
-59,
13,
48,
13,
9,
41,
-41,
-5,
-60,
0,
8,
45,
18,
12,
14,
-1,
-4,
10,
-13,
-30,
-7,
14,
38,
-37,
-7,
5,
-18,
-20,
-47,
-11,
24,
-7,
17,
39,
43,
4,
-26,
-52,
14,
-21,
-13,
31,
-2,
31,
5,
-42,
22,
-34,
-4,
50,
-33,
11,
26,
12,
-20,
-18,
7,
16,
10,
50,
-47,
-49,
-17,
-16,
-29,
-16,
-1,
44,
-73,
48,
-29,
3
] |
MR. JUSTICE SANNER
delivered tbe opinion of tbe court.
The respondent listed a town lot in Butte with the appellant to be sold for $1,400, the appellant to receive a commission of five per cent and she agreed that she would “furnish an abstract of title to date of sale, * * * and to convey said property by good and sufficient deed clear of encumbrances” to the appellant or its nominee. The respondent furnished an abstract which the appellant brought down to date; but, as completed, the abstract showed two apparent defects in the title, viz., a deed of the property on June 24, 1891, to John W. Fowler, followed by a deed of the same date from James W. Fowler, and a mortgage in 1907 to Augusta Y. Scott, followed by an assignment of said mortgage by Minnie Rowe and Freda Harkins “as devisees and legatees under the last will” of Augusta Young Scott, and a satisfaction of such mortgage by the assignee named. Both of these were sins of the abstractor— the one of commission, the other of omission — easily correctible by reference to the original records; in fact the appellant satisfied itself, with reference to the mortgage transaction, that the assignors were the devisees of the original mortgagee, entitled as such to make the assignment. Appellant found a buyer for the property, notified respondent accordingly, and demanded that she correct the abstract as to the mortgage transaction and make good the title as to the Fowler conveyances. This she refused to do, claiming that the contract she made absolved her from any and every expense save the commission. The purchase was not completed and the appellant, claiming this was due to the defendant’s failure to furnish the abstract, sued for its commission. Upon the trial a verdict was directed for the respondent, and, judgment being entered accordingly, this appeal is the result.
As reasons for the order directing a verdict, the trial judge assigned: (1) That in.its demand to make good the title, the appellant had exacted from the respondent an impossible thing not required by the contract; and (2) that the sale fell through on the advice of the appellant itself. Only from an ultra technical point of view, which we are loath to adopt, could the first of these propositions be sustained. The respondent had agreed to furnish an abstract and to convey title, and obviously the purpose of the abstract was to show that title could be conveyed by her. Upon examination of it the appellant thought the title, as shown by the abstract, defective; it could therefore properly indicate the corrections which the abstract seemed to require; this was done, and the language used with reference to the Fowler transfers must be taken as a demand, not to make good a title which was in that particular faultless, but to correct whatever needed correction, viz., either the title or the abstract.
The second proposition of the trial court is a different matter. The evidence makes it clear that the purchaser never saw the abstract, found no fault with the title, had no knowledge of the objections; she may, so far as the evidence shows, have taken the property notwithstanding the objections, chancing the reality or the importance of the apparent defects; what she did take was the appellant’s word whether the title was good or not, and, being so governed, did not buy the property. We think that this is ample to sustain the court’s position. The appellant was respondent’s agent to effect — not to defeat — a sale of the property, and though it was not bound to impose upon the purchaser a title thought to be defective, it could not on the one hand advise against the purchase because the title was bad when in fact it was good, and on the other hand claim its commission for finding a buyer able and willing to buy. Its duty was to pass the abstract to the purchaser and permit her to say whether, in view of the actual facts as she might ascertain them, or of the lapse of time since the Fowler conveyances, or of the likelihood that the mortgage assignment and satisfaction were regular, she would care to take the property. Nor is the appellant’s situation altered for the better by the fact that it was advancing part of the money for the purchase; the buyer might procure the money elsewhere. That in the attempt to serve three masters, to-wit, the respondent, the purchaser, and itself, the appellant lost the sale is clear; and it is equally clear that the appellant cannot impose the cost and responsibility for that loss upon the respondent alone.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
[
-5,
-8,
9,
-34,
27,
-66,
46,
9,
12,
8,
47,
15,
18,
8,
13,
-51,
-2,
-30,
-2,
-8,
-22,
-31,
-75,
31,
-22,
-15,
12,
-33,
3,
-16,
52,
-14,
-41,
46,
12,
29,
-40,
20,
-6,
-24,
60,
14,
15,
-32,
-6,
39,
-12,
-91,
-42,
-69,
34,
-23,
27,
57,
-14,
-73,
-27,
39,
-40,
3,
40,
-64,
-14,
24,
-6,
3,
48,
-25,
22,
9,
-54,
-14,
22,
-21,
-15,
-6,
7,
13,
-61,
-33,
-10,
-17,
13,
-39,
6,
0,
-5,
13,
-3,
23,
-27,
-6,
91,
29,
9,
8,
15,
-4,
-32,
1,
50,
-11,
-1,
24,
-26,
-36,
-65,
-36,
3,
19,
-12,
30,
-31,
-8,
-58,
-4,
13,
29,
-27,
6,
14,
-33,
-22,
-29,
6,
24,
-40,
30,
32,
1,
-28,
12,
-41,
50,
-11,
-19,
-25,
-40,
-39,
29,
-2,
-48,
-8,
-77,
-27,
-20,
-9,
-7,
-33,
-40,
-17,
-13,
79,
74,
21,
-65,
13,
-60,
68,
-68,
31,
-16,
-4,
30,
0,
49,
11,
-47,
-17,
-44,
6,
-5,
26,
-56,
-2,
-10,
52,
-28,
16,
-27,
25,
14,
32,
-25,
6,
-11,
34,
26,
68,
-10,
25,
-3,
29,
32,
-47,
-4,
-56,
-13,
74,
-19,
-19,
-27,
5,
40,
-44,
3,
-26,
-28,
32,
-23,
-26,
11,
-35,
0,
1,
25,
-21,
-24,
-19,
4,
0,
14,
-16,
-30,
-29,
-37,
50,
-10,
21,
39,
-26,
-31,
22,
0,
22,
-8,
22,
-7,
-22,
-6,
-2,
-18,
5,
0,
-48,
-16,
-15,
14,
-7,
3,
-19,
-5,
-10,
67,
6,
30,
7,
46,
-53,
-42,
45,
1,
17,
2,
34,
-57,
25,
-46,
2,
3,
24,
8,
21,
26,
-58,
-38,
-18,
-43,
5,
2,
14,
-35,
19,
40,
15,
34,
22,
40,
-28,
-12,
-10,
-29,
8,
-37,
18,
2,
-59,
8,
-9,
-57,
-44,
-66,
8,
43,
61,
14,
-32,
57,
18,
-23,
-18,
-21,
-22,
-30,
-17,
63,
-55,
-27,
-11,
48,
40,
8,
-36,
19,
3,
13,
-8,
-38,
-56,
33,
16,
20,
-32,
28,
-10,
-1,
33,
31,
-8,
-66,
-4,
8,
21,
-6,
58,
42,
-1,
-20,
6,
19,
-51,
-6,
-86,
22,
-16,
-16,
36,
-31,
29,
34,
46,
45,
27,
-91,
-40,
43,
-23,
-41,
53,
-5,
-31,
80,
-9,
7,
16,
-50,
-18,
2,
-8,
59,
20,
25,
30,
29,
34,
1,
39,
-44,
-30,
-20,
-3,
39,
33,
47,
6,
-25,
-35,
-53,
-60,
-24,
-19,
28,
-31,
-13,
-60,
-25,
3,
-7,
-61,
9,
28,
-26,
-5,
-26,
5,
-16,
12,
5,
38,
20,
4,
-29,
33,
32,
10,
-41,
28,
-3,
0,
44,
-6,
73,
14,
-28,
-20,
-26,
17,
6,
7,
45,
38,
52,
-21,
57,
-14,
12,
1,
10,
53,
39,
20,
32,
-1,
2,
22,
50,
54,
-17,
35,
8,
56,
-17,
7,
11,
-58,
-32,
65,
-20,
-2,
1,
0,
1,
68,
-29,
21,
68,
-31,
-20,
-34,
4,
-31,
-15,
49,
-3,
-18,
-17,
-55,
-22,
-21,
-22,
11,
-47,
83,
-38,
1,
-39,
-9,
-36,
28,
-3,
17,
-15,
8,
-21,
-36,
-28,
84,
21,
3,
15,
14,
-3,
9,
10,
12,
44,
5,
-24,
7,
40,
14,
-17,
-9,
-55,
-5,
-6,
63,
7,
22,
-32,
-17,
52,
-93,
17,
6,
13,
30,
-12,
39,
-7,
-74,
-11,
9,
31,
-8,
38,
36,
14,
4,
-4,
3,
1,
44,
55,
-3,
28,
-7,
-40,
8,
25,
-23,
20,
-51,
-24,
32,
2,
8,
-55,
-81,
-4,
-31,
-45,
0,
-22,
7,
-89,
-32,
-53,
37,
0,
-55,
-4,
-4,
-89,
-39,
-3,
22,
4,
-5,
46,
-8,
-4,
1,
5,
-46,
-18,
35,
-1,
15,
-4,
-36,
2,
-20,
6,
-11,
-39,
-19,
14,
72,
13,
-6,
-8,
-1,
42,
5,
11,
32,
-34,
66,
-18,
-8,
24,
2,
-19,
-8,
-4,
-55,
16,
-36,
13,
35,
-33,
31,
44,
-20,
41,
50,
-43,
-38,
-54,
11,
-7,
-21,
27,
-1,
16,
-8,
26,
104,
-15,
0,
14,
50,
-74,
26,
-41,
-14,
-1,
-2,
37,
15,
-15,
-4,
-12,
44,
16,
45,
12,
14,
23,
37,
-5,
22,
-11,
8,
-16,
30,
67,
34,
19,
43,
-44,
16,
44,
5,
-45,
25,
12,
17,
0,
20,
-37,
-21,
52,
-4,
9,
32,
2,
13,
-52,
46,
-31,
-12,
9,
-13,
27,
-12,
-17,
-17,
-17,
38,
-12,
8,
13,
-25,
24,
0,
2,
-65,
-13,
7,
11,
1,
-7,
3,
-18,
13,
21,
4,
30,
20,
26,
-4,
34,
-22,
74,
18,
-34,
7,
-75,
-57,
13,
-1,
7,
31,
20,
-3,
-7,
-42,
-58,
15,
-8,
11,
-24,
11,
-16,
-61,
30,
-7,
-9,
-13,
38,
-19,
0,
0,
20,
-18,
-40,
-82,
-35,
-1,
-23,
2,
-41,
7,
8,
68,
-8,
47,
-18,
37,
-48,
-29,
-2,
20,
0,
28,
48,
61,
2,
-23,
36,
-44,
-37,
-82,
-43,
-19,
0,
9,
33,
-34,
-7,
13,
-14,
3,
19,
-44,
42,
25,
-2,
-27,
-36,
9,
-75,
7,
-36,
6,
23,
3,
-37,
-63,
3,
38,
38,
-30,
-4,
3,
-10,
-26,
41,
61,
24,
-20,
21,
-7,
4,
5,
4,
4,
9,
5,
3,
-21,
0,
28,
-1,
-42,
24,
24,
-19,
-30,
-27,
39,
13,
-90,
-1,
-40,
18,
38,
30,
2,
1,
-31,
9,
55,
-39,
33,
9,
-5,
46,
11,
27,
7,
-2,
23,
-3,
-21,
-25,
72,
-6,
-20,
16,
-19,
39,
-42,
-8,
58,
31,
10,
40,
-36,
-16,
9,
22,
31,
-15,
-5,
-43,
26,
-19,
-22,
9,
21,
24,
-15,
41,
-12,
38,
21,
35,
64,
-30,
-43,
-13,
-41,
12,
-15,
-51,
7,
9,
35,
-12,
-60,
-13,
-8,
-23,
-30,
14,
-8,
44,
-21,
20,
3,
35,
55,
-61,
4,
13,
-11,
-12,
-7,
-36,
50,
18,
14,
31,
40,
-38,
17,
56,
12,
76,
25,
70,
-17,
-21,
-1,
-68,
-9,
-22,
-9,
34,
12,
-44,
49,
7,
23,
-2,
18,
-10,
-31,
-13,
-8,
-30,
-48,
40,
47,
-16,
-18,
-16,
17,
21,
-4,
50,
17,
-29,
30,
5,
0,
-27,
4,
-18,
-13,
17,
-10,
-7,
-17,
4,
17,
-25,
12,
-11,
8,
-26,
18,
-68,
-13,
-23,
-14,
-42,
-31,
-13,
42,
7,
-9,
-9,
23,
31,
35,
-10,
18,
-16,
5,
-5
] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
The Lawlor and Kemper addition to Butte comprises the surface ground of the Gambrinus Quartz Lode mining claim which was platted and sold generally for residence purposes. About 1905 plaintiff purchased lot 20, block 2, with a dwelling on it, and ever since has occupied the premises as a residence for himself and family. The defendant Corbin Copper Company became the owner of lots 10, 11, 12 and 18 in the same block, and in 1913 commenced sinking a shaft on lot 18, about fifty feet from plaintiff’s residence, and continued the work for a year or more. In furtherance of its purpose the company placed upon its lots a gallows frame, a tramway, a blacksmith-shop, and other structures and machinery necessary to the prosecution of mining operations. This action was brought to recover damages, upon the theory that appellant was maintaining a nuisance which injuriously affected the health and comfort of plaintiff and his family and the value of their property. Certain individuals were joined as defendants, but they were acquitted of liability. The plaintiff prevailed as against the copper company, and it appealed from the judgment and from an order denying a new trial.
Three questions are submitted for determination: (1) Did the mining operations of the defendant company constitute a nuisance? (2) Is plaintiff estopped by deed from complaining of defendant’s operations? (3) Does the evidence justify a judgment for more than nominal damages?
1. Section 6162, Revised Codes, provides: “Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, * * * is a nuisance.” The language of this statute is to be given a common-sense construction. On the one hand, it takes care that a legitimate and useful business or occupation shall not be suppressed on account of some imaginary or trifling annoyance, which offends the over-refined tastes or disturbs 'the supersensitive nerves of a fastidious person; on the other, it does not permit anyone, whatever his circumstances, to be driven from his home, or compelled to live in it in positive discomfort, in order to accommodate another, in the pursuit of his business which offends the mind and taste of the average individual.
The question of nuisance vel non is not to be determined in the abstract. Every case must be considered with reference to its own peculiar facts and circumstances. No one would have the temerity to contend that mining is per se a nuisance; but it is elementary that a business otherwise lawful and useful may become a nuisance, by reason of its location or the manner in which it is conducted. Neither a powder magazine nor a stone quarry is of itself a nuisance, but either may become such when located in a populous community or in a residence district. (Cameron v. Kenyon-Connell Co., 22 Mont. 312, 74 Am. St. Rep. 602, 44 L. R. A. 508, 56 Pac. 358; Longtin v. Persell, 30 Mont. 306, 104 Am. St. Rep. 723, 2 Ann. Cas. 198, 65 L. R. A. 655, 76 Pac. 699.) Upon the same principle a gas plant (Judson v. Los Angeles S. G. Co., 157 Cal. 168, 21 Ann. Cas. 1247, 26 L. R. A. (n. s.) 183, 106 Pac. 581), an insane asylum (Shepard v. Seattle, 59 Wash. 363, 40 L. R. A. (n. s.) 647, 109 Pac. 1067), a brick kiln (Face v. Cherry, 117 Va. 41, Ann. Cas. 1917E, 418, 84 S. E. 10), or a tin-shop (Dennis v. Eckhart, 3 Grant Cas. (Pa.) 390), may become a nuisance. Numerous other illustrative cases will be found cited in 29 Cyc. 1165 et seq. If the evidence brings appellant’s mining operations within the definition given in section 6162 above, it is no defense to say that they were carried on according to approved methods, or that in maintaining the nuisance appellant exercised due care, or that mining is necessary to the industrial life of the particular district. Community benefits cannot be urged as justification for the injury or destruction of private property without compensation. (Townsend v. Norfolk R. & L. Co., 105 Va. 22, 115 Am. St. Rep. 842, 8 Ann. Cas. 558, and note, 4 L. R. A. (n. s.) 87, 56 S. E. 970; Appeal of Pennsylvania Lead Co., 96 Pa. 116, 42 Am. Rep. 534; Columbus C. & I. Co. v. Tucker, 48 Ohio St. 41, 29 Am. St. Rep. 528, 12 L. R. A. 577, 26 N. E. 630; People v. White Lead Works, 82 Mich. 471, 9 L. R. A. 722, 46 N. W. 735.)
The evidence discloses that these mining activities were be°gun in a residential portion of the city, after it had been built up for residence purposes; that before such time it was a desirable, quiet neighborhood, and well adapted for residence purposes ; that the shaft, tramway, hoisting engine, air-compressor, air-containers, blacksmith-shop, and all machinery were in close proximity to plaintiff’s dwelling-house; that the inmates of the house were disturbed at all times of the day and night by loud and unusual noises, blasting, ringing of bells, dumping of cars, running of cars over the tramway, rumblings and vibrations of hoisting engines, pumps, air-compressors and other machinery, and periodically by day and night by heavy explosions of •dynamite, which awakened the inmates from sleep and jarred and shook the house and furniture; that such noises, vibrations and concussions were a source of great annoyance and discomfort to the inmates of plaintiff’s home, and made it unpleasant and uncomfortable to live in, and caused plaintiff’s wife to become nervous and her health to be temporarily injured by reason thereof; that such conditions continued for a year or more, and defendant admits in the answer that such activities will be resumed and continued indefinitely. It is disclosed, further, that plaintiff’s property suffered structural injury, and that its value depreciated one-half. Under these circumstances, the trial court did not err in its conclusion that appellant was maintaining a private nuisance.
2. But it is insisted that, even though these activities caused some substantial annoyance and damage, plaintiff cannot be heard, because he is estopped, by the condition of the deed conveying him legal title to his property, from complaining of mining operations by defendant. Whether plaintiff is estopped depends upon the terms of his deed. If it purports to do nothing more than sever the minerals from the superjacent soil and reserve to the grantor the mining rights, it may well be contended that there is implied in the reservation the right in the grantor and in defendant — a grantee from a common source— to employ such means and processes, for the purposes of extracting the ores, as may be reasonably necessary in the light of modern invention. (3 Bindley on Mines, 3d ed., sec. 813.) But the deed in question does more. It is in the usual form, with this addition: “It is understood that only the surface ground of the premises above described is herein conveyed, and that the party of the first part continue the owner of all minerals beneath the surface thereof, with the right to mine and extract the same: Provided, that in the exercise of such mining rights said premises shall not be disturbed, damaged, or interfered with by said party of the first part.” Plaintiff’s grantor did not see fit to make an unconditional reservation of his mining rights, but voluntarily limited his right to such mining operations as would not disturb, damage or interfere with the plaintiff in the use and occupation of the surface ground embraced in lot 20. The parties to- the deed were free to make any lawful contract, and plaintiff may rely with confidence upon the terms quoted above, which recognize the correlative rights of grantor and grantee, and in effect bind each alike to the observance of the equitable rule expressed by the maxim: ‘ Sic. utere tuo ut alienum non laedas.”
While plaintiff may not be heard to deny generally appellant’s right to utilize its property, he is not estopped by his 'deed to complain of particular mining operations which disturb or interfere with the quiet and peaceable possession and enjoyment of his own premises, or of acts of the appellant which cause damage to his property.
In their presentation of this case, counsel have assumed that the copper company acquired mining rights, and we have proceeded upon that assumption, though the fact is not alleged in any of the pleadings.
3. No useful purpose would be served in reciting the evidence in detail or in substance. In our opinion it is sufficient to sustain the finding that plaintiff has been damaged to the extent of $1,250.
The judgment and order are affirmed.
'Affirmed.
Mr. Cheep Justice Brantly and Mr. Justice Sanner concur.
|
[
11,
60,
8,
-6,
-11,
-24,
18,
1,
15,
19,
47,
-18,
69,
-32,
29,
-31,
-24,
-37,
-13,
47,
2,
1,
6,
-2,
6,
6,
-41,
-20,
-53,
65,
-36,
-11,
-18,
9,
-29,
39,
-30,
-10,
-2,
10,
-29,
49,
19,
-40,
58,
25,
18,
-4,
20,
-15,
42,
0,
27,
12,
-38,
-36,
-34,
37,
-9,
1,
-23,
-5,
33,
15,
60,
31,
58,
-33,
18,
11,
-81,
10,
-2,
-63,
26,
-31,
5,
-4,
-64,
-51,
-24,
-11,
10,
0,
-45,
36,
-51,
-34,
7,
9,
17,
-29,
24,
21,
-23,
8,
-10,
-30,
-44,
15,
10,
-32,
-14,
0,
3,
0,
-59,
24,
45,
5,
-35,
-22,
-32,
-25,
-33,
-18,
0,
-10,
4,
-10,
21,
-17,
35,
10,
-62,
-36,
-31,
-30,
-3,
20,
-43,
9,
-17,
0,
-24,
-14,
24,
-31,
12,
24,
-5,
-18,
-8,
-9,
-23,
19,
-10,
18,
-27,
-34,
-11,
2,
37,
-15,
15,
-18,
28,
-21,
50,
0,
25,
-16,
26,
24,
-25,
18,
-13,
-27,
-25,
-10,
-44,
22,
-15,
30,
63,
-27,
-4,
-13,
5,
-26,
4,
-55,
-15,
-3,
-11,
3,
16,
-19,
23,
24,
9,
-23,
-22,
-17,
-56,
5,
21,
-44,
-4,
-78,
11,
24,
-21,
0,
1,
61,
-24,
53,
51,
-9,
-10,
46,
-40,
16,
8,
2,
39,
-40,
-9,
-21,
-24,
-22,
-31,
-4,
-8,
-3,
-16,
-55,
43,
-32,
-62,
-42,
54,
-6,
-32,
-11,
4,
-16,
-6,
-39,
-47,
1,
-15,
-43,
-18,
5,
19,
-12,
-21,
37,
-8,
-41,
-19,
52,
34,
-1,
-23,
0,
-15,
-55,
53,
14,
10,
-13,
94,
16,
-11,
-35,
-95,
47,
-20,
13,
55,
26,
-78,
-58,
46,
-13,
-1,
14,
13,
10,
38,
8,
21,
21,
-11,
-3,
-101,
-4,
-21,
-6,
-6,
-3,
35,
24,
55,
-11,
-1,
30,
1,
26,
-21,
-28,
48,
30,
-32,
51,
17,
-3,
10,
7,
-25,
22,
4,
16,
7,
22,
1,
16,
8,
-5,
-12,
18,
3,
26,
-9,
-25,
-4,
18,
20,
-17,
42,
18,
-22,
15,
60,
-16,
-23,
-28,
-15,
2,
30,
-26,
16,
37,
-7,
14,
-5,
-56,
-12,
21,
-27,
5,
49,
21,
-8,
-18,
-22,
7,
37,
17,
11,
-2,
-29,
-9,
-28,
-44,
-5,
-3,
16,
-10,
0,
7,
65,
-43,
32,
15,
-11,
42,
33,
2,
29,
10,
38,
72,
-1,
-5,
-9,
-7,
-41,
-3,
29,
88,
-33,
12,
23,
-15,
31,
-14,
-29,
8,
-62,
-8,
-15,
-44,
8,
-22,
0,
-10,
-52,
3,
-51,
5,
4,
2,
24,
8,
20,
30,
14,
20,
41,
-8,
22,
-15,
27,
0,
-22,
84,
-2,
-2,
32,
7,
3,
-37,
-37,
23,
-57,
41,
-14,
-5,
-27,
-18,
-5,
-7,
-52,
3,
22,
1,
-7,
-7,
-39,
-9,
-12,
38,
39,
-44,
4,
-7,
34,
36,
8,
14,
-4,
-38,
45,
-47,
4,
28,
7,
33,
30,
-75,
46,
58,
-2,
49,
1,
35,
40,
10,
-11,
61,
9,
-36,
-33,
16,
25,
72,
49,
-7,
4,
-83,
7,
-9,
-10,
-4,
58,
2,
11,
32,
6,
-6,
-23,
23,
-2,
28,
-21,
66,
-4,
-16,
23,
4,
-39,
47,
14,
6,
-50,
10,
-1,
-16,
-8,
43,
19,
-5,
-2,
-30,
65,
-48,
-19,
-18,
-4,
44,
11,
-15,
-38,
-20,
-28,
-58,
4,
11,
34,
23,
-47,
24,
61,
15,
43,
-16,
-3,
-6,
-34,
-6,
21,
13,
-45,
56,
4,
9,
-47,
48,
37,
-11,
57,
23,
28,
-8,
21,
7,
-60,
11,
13,
-40,
-21,
35,
-37,
5,
-18,
58,
-11,
-26,
25,
-9,
0,
12,
-18,
-11,
15,
22,
31,
-5,
44,
8,
-24,
-47,
-32,
6,
-63,
-15,
12,
-32,
-7,
-19,
-32,
-1,
-33,
-40,
-25,
-12,
0,
47,
-37,
-3,
21,
52,
21,
-29,
69,
-37,
-8,
-10,
-53,
28,
28,
-8,
-49,
7,
-50,
57,
-54,
11,
-9,
31,
16,
9,
25,
12,
-25,
-23,
-32,
3,
-11,
18,
-18,
15,
21,
31,
-2,
-10,
2,
18,
-1,
12,
34,
26,
8,
-34,
-1,
-10,
30,
12,
16,
5,
-47,
-1,
-14,
-6,
-18,
-17,
-17,
4,
18,
0,
13,
-37,
5,
-51,
58,
-11,
-2,
-27,
7,
-12,
17,
0,
39,
28,
0,
-12,
-13,
-35,
1,
0,
-20,
-2,
38,
-67,
-9,
-15,
-33,
-24,
50,
32,
22,
70,
57,
-42,
-1,
-43,
13,
-54,
11,
9,
-33,
4,
-8,
-40,
-43,
-46,
32,
-22,
14,
-14,
35,
7,
31,
75,
-56,
24,
45,
-6,
-32,
10,
25,
-20,
14,
7,
-11,
-46,
19,
-8,
-12,
43,
-3,
-23,
38,
-61,
-21,
37,
4,
59,
-12,
-16,
5,
-45,
-2,
48,
-3,
-18,
52,
-1,
-7,
-18,
0,
-34,
-28,
-41,
-39,
-15,
-11,
17,
-33,
-33,
13,
33,
-28,
20,
22,
40,
2,
25,
14,
-59,
-19,
-25,
20,
59,
51,
41,
-31,
29,
-2,
-25,
-19,
-31,
-87,
-6,
23,
53,
11,
3,
17,
14,
69,
29,
17,
-28,
6,
14,
1,
-36,
36,
-7,
-7,
-14,
-40,
6,
-12,
-30,
-6,
21,
-35,
-7,
55,
-47,
39,
9,
33,
-22,
34,
-18,
-59,
30,
-4,
-14,
-2,
54,
10,
-10,
3,
-42,
-19,
15,
35,
-2,
-54,
-3,
-2,
92,
-67,
36,
4,
5,
-3,
-20,
-33,
-36,
-10,
26,
59,
0,
-50,
53,
30,
-34,
5,
28,
-2,
4,
-31,
56,
-3,
-41,
-35,
-9,
-50,
31,
15,
-1,
-37,
-9,
9,
9,
-7,
19,
14,
-19,
27,
25,
20,
-50,
-25,
31,
32,
-25,
-11,
-22,
10,
-83,
-15,
6,
42,
82,
24,
-13,
-16,
-6,
9,
13,
0,
-29,
-38,
40,
-36,
39,
-40,
37,
32,
19,
30,
61,
0,
31,
-24,
24,
-49,
-28,
-23,
59,
-54,
6,
37,
-55,
-10,
44,
-20,
-21,
0,
-34,
-9,
-33,
30,
47,
27,
-13,
18,
-46,
73,
20,
40,
106,
-12,
21,
0,
-60,
-63,
-26,
-6,
-16,
-56,
70,
-30,
6,
-15,
-14,
24,
-32,
26,
-68,
26,
-24,
70,
-14,
18,
-9,
6,
7,
33,
-2,
19,
-8,
15,
29,
8,
-11,
-8,
-65,
-5,
-41,
-13,
8,
-23,
23,
-1,
-20,
-57,
-52,
-2,
-8,
21,
11,
-46,
19,
36,
18,
4,
-13,
32,
-18,
-22,
26,
15,
-13,
21,
-7,
-49,
10,
-40,
-2,
6,
20,
-52,
4
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The defendant was convicted of a felony and the state has appealed from an order granting him a new trial.
Several of the statutory grounds are mentioned in the motion, but in this court the argument in support of the ruling is confined to one, viz.: The verdict is contrary to the evidence.
In 1863 the supreme court of California said: ‘It is only in rare instances and upon very strong grounds that this court will set aside an order granting a new trial.” The language was quoted with approval by this court in McCauley v. Tyler, 11 Mont. 51, 27 Pac. 391, and the principle has been adhered to consistently since that case was decided. (See Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76.)
If the same judge who presided at the trial had presided when the motion was granted, our review would be limited to an examination of the record to ascertain whether there is disclosed a substantial conflict in the evidence or an absence of evidence necessary to make out a case. (State v. Foster, 26 Mont. 71, 66 Pac. 565.) But Judge Utter, who presided in court when the motion for a new trial was heard and sustained, did not preside at the trial of the cause, and for this reason it is suggested that a different rule should govern our review of the order.
The right of a defendant who has been convicted, to move for a new trial upon the ground that the verdict is contrary to the evidence, is one conferred upon him — to the exclusion of the state — by statute (sec. 9350, Rev. Codes), and the authority of the district court to grant the motion is confirmed by the same section, and that, too, without reference to the fact that a different judge may preside at the hearing of the motion, from the one who presided at the trial. It may be conceded that by reason of the fact that Judge Utter could not be aided by any impressions received from the testimony of living witnesses, the order is not entitled to the support of all the presumptions which would have attached to it if the same judge who heal’d the motion had presided at the trial; still, after making every proper allowance for the judge’s disadvantageous position, the court was required to exercise judicial functions — to determine whether, upon the record, the verdict was contrary to the evidence. (In re Williams’ Estate, 50 Mont. 142, 145 Pac. 957.)
In civil actions, a new trial may be granted for “insufficiency of the evidence to justify the verdict.” (Sec. 6794, Rev. Codes.) This language has been uniformly held to require the court to grant a new trial if in its judgment the weight of the evidence does not justify the verdict. (Hamilton v. Monidah Trust, 39 Mont. 269, 102 Pac. 335; Harrington v. Butte & B. Min. Co., 27 Mont. 1, 69 Pac. 102; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407.) The expression, “the verdict is contrary to the evidence,” has been held to mean the same thing as the expression, “insufficiency of the evidence to justify the verdict.” (Flaherty v. Butte Electric Ry. Co., 42 Mont. 89, 111 Pac. 348.)
A defendant in a criminal ease who has been convicted is not required to show an entire absence of evidence of some fact necessary to make out a case, in order to secure a new trial; but if he can convince the district court that the evidence in its entirety is insufficient in weight to justify the verdict, he is entitled to a new trial. The rule is stated generally as follows: A court may grant a new trial in a criminal case whenever in its judgment the conviction is not warranted by the proof. (Bachman v. People, 8 Colo. 472, 9 Pac. 42; 16 Corpus Juris, 1179; 12 Cyc. 732.) There is no definite rule of law — no fixed standard — by which to judge of the weight of human testimony, and when the evidence is conflicting, the motion for a new trial upon the ground that the verdict is contrary to the evidence, must of necessity be addressed to the sound judgment of the trial court. (16 Corpus Juris, 1178.) Upon appeal from the order granting or denying the motion, this court sits as a court of error and review, not as a court of original jurisdiction or as an appellate court clothed with authority to try the motion de novo. We enter upon our consideration of an appeal indulging the presumption that the judgment or order from which the appeal is taken is correct, and the burden is upon the appellant to show reversible error. (Rumney Land & C. Co. v. Detroit & M. Cattle Co., 19 Mont. 557, 49 Pac. 395; Haley v. McDermott, 45 Mont. 217, 121 Pac. 1060; Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 168 Pac. 947.) Since the determination upon the weight of the evidence in this instance involved an exercise of judgment, the state must assume the burden of showing that the record does not present such a case as that Judge Utter in the exercise of sound judgment could conclude that the verdict is contrary to the evidence.
No useful purpose could be served by a review of the evidence. We content ourselves with saying that we have given careful consideration to the entire record, and the state has failed to convince us that the lower court erred in granting the motion.
The order is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice. Cooper concur.
|
[
-16,
-19,
14,
-53,
23,
-8,
-24,
-13,
-15,
51,
19,
-22,
1,
-55,
16,
-58,
-43,
10,
-24,
-2,
-4,
42,
36,
0,
47,
-30,
0,
20,
24,
-14,
31,
-40,
-3,
29,
15,
-5,
-14,
-9,
48,
29,
25,
24,
-14,
-9,
-14,
-6,
30,
-16,
19,
-33,
-26,
-57,
-46,
35,
27,
18,
-29,
35,
40,
80,
0,
-1,
-40,
-59,
-9,
-11,
14,
-42,
3,
-37,
-72,
-20,
27,
-1,
-18,
-40,
16,
-5,
19,
-13,
15,
-3,
-44,
-25,
-7,
20,
8,
-43,
-44,
-29,
58,
54,
-14,
-18,
-36,
-5,
64,
-78,
39,
-2,
1,
-13,
18,
11,
-28,
20,
-15,
21,
27,
-43,
48,
47,
8,
-20,
-44,
-5,
-19,
27,
-31,
-30,
40,
6,
60,
11,
-1,
41,
29,
9,
4,
12,
-18,
29,
0,
8,
-9,
-49,
-22,
11,
-47,
50,
17,
-39,
19,
-37,
21,
-8,
30,
18,
13,
36,
0,
39,
-8,
45,
-10,
-41,
-70,
-37,
14,
37,
24,
56,
-54,
3,
17,
7,
-18,
-35,
43,
-21,
-68,
24,
27,
2,
17,
-6,
-50,
-42,
10,
-55,
-32,
43,
-22,
-56,
-2,
-14,
-70,
9,
6,
-32,
-62,
51,
-9,
4,
83,
-43,
-10,
-1,
52,
6,
-53,
-1,
16,
-8,
0,
40,
5,
0,
19,
-16,
-53,
-15,
-11,
1,
-11,
-34,
27,
-38,
8,
55,
-27,
13,
24,
-25,
3,
44,
26,
31,
16,
23,
-29,
57,
-7,
-18,
3,
-9,
-35,
-16,
-20,
-11,
4,
36,
28,
-25,
-4,
-7,
41,
33,
-1,
-14,
36,
13,
63,
-10,
-2,
33,
-13,
-45,
-26,
-32,
-1,
51,
23,
27,
-43,
25,
43,
19,
-17,
9,
0,
-77,
12,
-18,
12,
-11,
-6,
30,
-3,
42,
-55,
39,
73,
3,
-48,
39,
-10,
49,
30,
28,
2,
-26,
-44,
83,
30,
18,
35,
27,
8,
23,
-19,
-13,
-16,
77,
26,
-45,
-10,
2,
-38,
-31,
13,
5,
18,
39,
40,
76,
-56,
-45,
48,
-23,
-57,
-35,
-26,
-74,
20,
14,
2,
-71,
-25,
15,
37,
24,
49,
40,
13,
11,
-30,
-4,
20,
46,
-16,
-30,
2,
-24,
39,
7,
-6,
-38,
-44,
1,
18,
25,
-32,
0,
-13,
-38,
-38,
-90,
4,
-66,
-5,
-13,
52,
-16,
10,
-14,
-38,
-41,
16,
-9,
8,
-15,
-41,
-49,
-63,
-22,
52,
0,
9,
-12,
-38,
-6,
6,
-17,
47,
58,
22,
-11,
19,
45,
-2,
-1,
-22,
-1,
-53,
63,
2,
36,
-1,
-11,
-24,
0,
-28,
-15,
-30,
-9,
13,
-24,
-27,
4,
-7,
26,
-4,
23,
29,
15,
-27,
5,
35,
-21,
-9,
-71,
15,
5,
20,
7,
-65,
-24,
53,
-21,
-12,
6,
-6,
-28,
-27,
46,
14,
-16,
20,
54,
-47,
32,
-42,
-1,
-22,
-17,
58,
17,
-15,
56,
11,
-20,
15,
-32,
-22,
-9,
6,
18,
-22,
4,
43,
-21,
-49,
19,
31,
6,
-31,
21,
25,
-14,
29,
13,
3,
-5,
-3,
50,
-33,
46,
3,
6,
45,
8,
-62,
32,
8,
59,
-22,
-77,
2,
-22,
-24,
61,
3,
8,
-16,
-6,
-49,
-24,
-9,
20,
-2,
13,
-11,
-1,
-41,
-17,
36,
-68,
1,
0,
52,
14,
27,
29,
4,
-34,
8,
-17,
-3,
4,
65,
-24,
-32,
-40,
-8,
-32,
-67,
-1,
10,
-37,
9,
17,
28,
6,
13,
27,
2,
-46,
29,
3,
4,
-2,
32,
12,
-12,
28,
-13,
-5,
38,
15,
37,
39,
-32,
-34,
41,
-32,
-34,
12,
77,
-23,
0,
22,
-12,
48,
27,
-22,
0,
-23,
17,
3,
70,
0,
-49,
10,
-13,
-24,
49,
31,
-23,
-30,
-35,
9,
-16,
-18,
1,
-6,
-4,
-24,
51,
-53,
-27,
2,
36,
-33,
-55,
-32,
-32,
-26,
41,
24,
3,
40,
-35,
55,
-27,
-41,
77,
-8,
-23,
1,
31,
-34,
-17,
5,
-1,
39,
-56,
39,
-6,
74,
-48,
-5,
-28,
-13,
44,
-30,
-53,
14,
-15,
16,
0,
-12,
21,
27,
-69,
22,
18,
-60,
-8,
-23,
-2,
64,
-10,
-26,
-8,
-29,
15,
11,
37,
20,
-11,
66,
-32,
-39,
24,
24,
11,
4,
16,
-5,
-10,
-58,
-80,
14,
0,
29,
-55,
25,
-36,
6,
-7,
17,
27,
32,
-22,
25,
50,
-9,
-45,
-16,
4,
3,
-50,
32,
-36,
-40,
-38,
60,
8,
29,
24,
-27,
15,
81,
54,
-12,
52,
-15,
22,
-53,
20,
-19,
17,
13,
-24,
-19,
-4,
40,
44,
-39,
-25,
-14,
-47,
13,
-20,
-30,
9,
-23,
-2,
-6,
12,
-28,
20,
40,
34,
-17,
26,
49,
74,
-35,
-2,
-30,
-26,
47,
-12,
11,
-13,
5,
-11,
-38,
-40,
1,
-7,
-34,
-11,
40,
-1,
-12,
19,
-14,
89,
-6,
-16,
18,
-88,
43,
49,
-43,
-20,
7,
9,
14,
-7,
-6,
4,
2,
1,
-5,
1,
36,
16,
-53,
19,
37,
-34,
43,
22,
-18,
35,
-3,
-13,
23,
-14,
-26,
54,
3,
-46,
19,
-61,
23,
-2,
13,
-73,
60,
7,
-27,
-31,
-14,
14,
52,
15,
0,
29,
12,
-24,
31,
22,
-41,
80,
14,
51,
1,
29,
35,
54,
-77,
-18,
-11,
8,
-39,
29,
50,
64,
-22,
40,
28,
38,
-71,
-88,
57,
27,
-36,
-14,
58,
-14,
-55,
30,
54,
27,
-24,
-26,
18,
13,
69,
-1,
5,
-52,
-12,
-34,
37,
18,
29,
-2,
-22,
-24,
-41,
0,
-77,
-8,
5,
-1,
83,
7,
-28,
12,
-12,
-18,
47,
-1,
4,
-16,
23,
63,
7,
-61,
59,
-43,
37,
-39,
64,
-5,
-71,
7,
-24,
2,
-15,
-23,
-35,
0,
3,
-3,
-14,
63,
-7,
10,
-15,
3,
-28,
18,
-12,
18,
-25,
21,
8,
31,
-29,
-3,
-14,
-1,
12,
-36,
3,
0,
-49,
57,
17,
-38,
-28,
49,
-62,
-8,
62,
0,
-16,
-22,
-36,
0,
-47,
27,
36,
-44,
-21,
-21,
-12,
-34,
-21,
1,
-34,
11,
4,
-43,
-63,
10,
17,
-4,
-3,
-22,
-5,
6,
-22,
-17,
37,
-28,
-19,
38,
-20,
17,
-13,
32,
6,
-58,
45,
4,
-43,
54,
23,
0,
-55,
-23,
36,
10,
-37,
44,
-65,
-42,
-58,
8,
-44,
-20,
-10,
9,
-1,
-37,
-6,
24,
-9,
30,
-10,
-4,
-5,
9,
-15,
12,
33,
-71,
50,
36,
-19,
22,
42,
-2,
35,
16,
-20,
16,
-24,
-35,
18,
-47,
8,
28,
41,
55,
9,
-72,
16,
3,
-43,
-59,
-5,
-27,
76,
8,
-24
] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Plaintiff brought this action to recover a balance of $1,290.45 alleged to be due on two promissory notes executed by defendants on July 19, 1913, with interest at the rate of ten per cent per annum from November 11, 1914, the date of the last payment, together with a reasonable attorney’s fee to be allowed as costs. The defenses interposed were a general denial of all the material allegations of the complaint, and three several counterclaims amounting in the aggregate to $1,089.07, upon which defendants claimed interest at the rate of eight per cent per annum from the respective dates at which it is alleged the several amounts became due. A trial to a jury of the issues framed by the complaint, amended answer and plaintiff’s reply resulted in a judgment for plaintiff for $567.22, with costs, including an attorney’s fee, taxed at $371. Thereafter the plaintiff moved for a new trial, alleging all the statutory grounds. From a general order granting the motion, defendants have appealed.
Counsel for defendants, assuming that the trial court granted the order on the ground that the evidence was insufficient to justify the verdict, have devoted their entire argument to an attempt to show that it was guilty of an abuse of discretion. After a careful reading of the somewhat voluminous evidence, we conclude that the argument is without merit. There was no substantial controversy that defendants were indebted to plaintiff in the full amount of the balance due on the two notes, less the items, with interest, which defendants could show they were entitled to recover under their counterclaims. Neither was there any controversy that defendants were entitled to recover the amount of their third counterclaim, with interest from July 19, 1913, the date at which it became due. This amount was $17.10. Therefore the questions at issue in the evidence to be resolved by the jury were, what amounts, if any, defendants were entitled to recover under the first and second counterclaims. The two principal items — $200 each — composing the first counterclaim, without allowance of one or both of which the jury could not have found a verdict in the amount they did, were claims for commissions earned on two sales of machinery by defendant R. E. Hamilton under a dealer’s contract with the plaintiff; a half interest therein having been assigned by him to his codefendant. A copy of the contract introduced in evidence disclosed that under its terms the earned commissions were not to become due and payable until the purchasers of machinery should have paid the purchase price, and that the price under neither sale had been paid except a part of the second; the amount of this, however, not being shown. The burden was upon defendants, not only to show payment by the purchasers, but also the amount of each payment, before they were entitled to recover any part of these items. There is no evidence in the record on this subject.
Other small items of commissions on sales of extras and supply parts of machinery sold, amounting to $36.50, fall in the same class as the two principal items. There is no evidence showing that the extras and supply parts had been paid for.
Several other small items aggregating $18.10, for expenses incurred in connection with machinery sold, apparently fall within the provisions of the dealer’s contract, and were not a proper charge against the plaintiff.
The defendant E. E. Hamilton executed the dealer’s agreement on August 27, 1912. The two remaining items are a charge for services alleged to have been performed for plaintiff by Hamilton at different times from July 1 to November 10, 1912, amounting to $348, and a charge for expenses for engineer’s services paid for by Hamilton at different times from August 23 to September 23, 1912, amounting to $105. Under the terms of the dealer’s agreement, Hamilton was not entitled to charge plaintiff for any services in setting up and adjusting machinery or fitting attachments, etc. Therefore, for the services rendered by Hamilton after August 27, he was apparently not entitled to make any charge. In any event, the burden was upon hinrto show that such services were rendered under a special agreement and not under the dealer’s agreement. Besides, the evidence was in conflict as to the extent and value of the services. These remarks apply also to the expenses incurred for engineer’s services. Furthermore, all these services were performed and expenses incurred during the year 1912. The notes upon which the plaintiff seeks recovery were executed nearly a year afterward. The presumption obtains that defendants would not have executed these notes while the plaintiff was indebted to E. E. Hamilton in such a substantial sum as is represented by the items included in this counterclaim. This presumption is a rebuttable one, but it cast the burden upon the defendants, and we do not find any evidence in the record which tends in any measure to rebut it.
The second counterclaim alleged as a ground for recovery that during the year 1912 the plaintiff had accepted from Hamilton orders for money drawn by him on persons for whom he had threshed grain during the threshing season for that year, to the amount of $162.32, under an agreement that plaintiff would credit them upon an account due from Hamilton to plaintiff, but that plaintiff had failed and refused to give him credit. It was alleged that he had assigned a half interest in these claims to his codefendant. ' The evidence discloses that these orders had been accepted merely as collateral security with the right to collect them, but that no credit was to be given for them until they should be collected. It is disclosed further that only $43.62 of the amount had been collected, for which credit had been given. It thus conclusively appears that defendants were not entitled to recover anything on this counterclaim.
This brief synopsis is sufficient to show that the court was not guilty of abuse of discretion in granting the motion, but that plaintiff was entitled to a new trial as a matter of right.
The order is affirmed.
Affirmed.
Mb. Justice Holloway concurs.
|
[
-10,
24,
33,
4,
-15,
-29,
31,
-60,
40,
11,
10,
3,
-19,
-31,
-11,
-12,
2,
-32,
19,
-14,
35,
-61,
33,
-44,
-25,
47,
16,
8,
19,
53,
21,
21,
-16,
37,
-34,
14,
-38,
-34,
26,
-14,
16,
-17,
15,
-19,
-9,
27,
39,
-67,
52,
-16,
33,
-38,
-9,
19,
-26,
-9,
-13,
-1,
9,
11,
42,
-26,
57,
-46,
-15,
-41,
24,
-15,
33,
45,
-23,
-4,
39,
-17,
-38,
-45,
-19,
-54,
-68,
-56,
-62,
-35,
10,
43,
-39,
9,
27,
-24,
-27,
20,
-7,
36,
35,
40,
36,
3,
-4,
-4,
-35,
8,
13,
-49,
-55,
43,
23,
4,
-24,
-8,
0,
52,
10,
70,
-17,
2,
-26,
20,
23,
0,
-8,
-29,
-17,
13,
29,
-4,
-68,
45,
-28,
-12,
20,
40,
9,
45,
-16,
35,
-43,
-45,
-23,
-11,
14,
36,
8,
-98,
-7,
-15,
5,
32,
30,
17,
29,
-37,
-5,
-3,
9,
79,
-4,
-50,
-12,
-59,
25,
-50,
18,
-25,
32,
0,
6,
58,
0,
40,
-1,
-47,
18,
-59,
-20,
-22,
24,
30,
-17,
-50,
13,
12,
-7,
29,
-6,
-43,
17,
-23,
-4,
11,
43,
-28,
18,
32,
-48,
-20,
-1,
-8,
18,
-28,
-8,
5,
19,
-16,
26,
-48,
9,
9,
53,
-2,
-8,
24,
-5,
-15,
28,
-20,
-81,
38,
7,
-75,
0,
10,
-3,
-10,
-59,
25,
29,
-21,
31,
4,
18,
19,
-63,
13,
-3,
30,
-6,
-16,
3,
3,
-29,
8,
-29,
-26,
-15,
-65,
16,
41,
-12,
34,
2,
22,
25,
3,
15,
15,
4,
7,
10,
21,
0,
-63,
9,
55,
-42,
-4,
10,
-21,
5,
12,
19,
17,
-32,
-47,
-3,
53,
-8,
-42,
7,
0,
-15,
-7,
-33,
-29,
-3,
7,
-11,
17,
33,
-5,
22,
3,
27,
1,
66,
1,
5,
43,
2,
-4,
-20,
26,
-19,
-14,
17,
30,
-16,
38,
-10,
30,
-54,
-46,
-16,
61,
-24,
-27,
52,
27,
-29,
36,
56,
9,
25,
35,
-3,
-1,
6,
1,
39,
-40,
-32,
-55,
-16,
72,
28,
7,
-48,
-47,
54,
-3,
56,
22,
11,
0,
6,
-10,
11,
17,
-15,
-40,
-37,
65,
-24,
-12,
-49,
34,
21,
27,
25,
13,
-18,
27,
52,
-10,
38,
-17,
-8,
35,
-42,
-38,
-42,
73,
25,
-8,
-29,
-20,
-10,
6,
-13,
1,
-13,
78,
13,
-8,
-19,
-17,
-3,
58,
13,
-21,
-52,
38,
-51,
60,
33,
39,
-13,
-59,
0,
-26,
-23,
-11,
-22,
13,
-10,
5,
-21,
-20,
-7,
-14,
-19,
1,
-20,
-36,
-19,
10,
-5,
-6,
27,
32,
21,
-32,
45,
-3,
36,
23,
61,
-26,
27,
34,
-17,
22,
3,
28,
-30,
-61,
1,
-27,
-4,
19,
35,
0,
43,
72,
-43,
55,
85,
0,
-9,
31,
26,
56,
21,
-34,
68,
11,
-10,
9,
49,
-35,
2,
-13,
12,
-20,
-25,
35,
-5,
3,
38,
-5,
13,
8,
-1,
37,
13,
-15,
-15,
57,
-22,
-34,
-4,
-7,
-45,
5,
0,
2,
-33,
9,
-86,
-47,
-9,
-34,
20,
4,
-7,
9,
-42,
-40,
-38,
-40,
-10,
-29,
-30,
-17,
15,
3,
5,
-28,
-24,
-72,
4,
36,
40,
13,
26,
0,
9,
-16,
10,
9,
14,
41,
37,
30,
-28,
54,
-8,
-12,
-27,
22,
47,
-25,
-10,
17,
-9,
-2,
-22,
0,
30,
10,
11,
-23,
-14,
29,
0,
46,
-35,
0,
-7,
8,
28,
42,
17,
-20,
49,
50,
-8,
1,
34,
0,
-5,
-18,
0,
1,
-21,
-16,
45,
-38,
-30,
-17,
31,
-80,
-4,
-6,
-15,
31,
-16,
-13,
4,
-21,
5,
-65,
0,
39,
-19,
-80,
-35,
11,
9,
56,
-34,
35,
27,
-9,
-12,
4,
24,
-39,
-17,
-20,
-18,
50,
16,
-21,
-36,
4,
-3,
-23,
-34,
35,
35,
6,
48,
18,
13,
-22,
-6,
-42,
-40,
-10,
35,
-7,
58,
21,
-21,
11,
21,
7,
-83,
-28,
-45,
36,
50,
-3,
-18,
54,
-40,
39,
27,
-15,
-38,
-42,
-2,
21,
22,
-22,
8,
-5,
-18,
37,
-8,
-20,
14,
2,
54,
-6,
-20,
12,
54,
-19,
-37,
-4,
21,
-18,
-1,
26,
24,
-2,
-40,
-10,
-25,
-8,
17,
-67,
30,
7,
45,
-15,
-34,
2,
-5,
-45,
-4,
-1,
-32,
49,
-50,
1,
-2,
-3,
0,
26,
-4,
13,
-40,
-14,
0,
43,
70,
17,
-56,
0,
26,
-53,
-2,
25,
-30,
37,
-66,
22,
10,
-43,
27,
-42,
-43,
-19,
-12,
-5,
-2,
20,
-55,
-24,
6,
-26,
50,
-30,
-31,
12,
51,
5,
-30,
25,
20,
25,
-18,
20,
-53,
31,
-30,
-43,
-20,
2,
0,
37,
17,
-1,
15,
2,
17,
31,
19,
8,
46,
-19,
42,
24,
-29,
5,
-48,
7,
-7,
-23,
4,
48,
-10,
-36,
-59,
48,
-25,
-42,
-32,
-44,
-30,
-12,
-7,
-20,
0,
16,
-12,
33,
7,
10,
15,
9,
-32,
-5,
-14,
-33,
29,
52,
10,
48,
13,
27,
-11,
-6,
-19,
0,
28,
2,
10,
13,
-29,
29,
15,
-45,
45,
-10,
32,
0,
45,
4,
-51,
-8,
4,
-56,
-12,
-19,
-11,
-29,
19,
4,
-49,
19,
22,
24,
11,
21,
-13,
24,
-29,
36,
56,
-18,
-63,
13,
-37,
43,
29,
-7,
-30,
-31,
-30,
20,
-79,
62,
12,
28,
-63,
24,
18,
-21,
-10,
16,
-22,
-36,
-51,
-34,
47,
-13,
15,
1,
20,
7,
-15,
3,
70,
11,
-20,
29,
7,
39,
-4,
77,
10,
-16,
-36,
8,
42,
-15,
57,
10,
-27,
9,
-20,
17,
8,
40,
22,
-63,
-34,
12,
13,
-28,
-9,
-52,
21,
-59,
-21,
-27,
44,
-3,
43,
-3,
48,
-4,
23,
48,
-16,
-14,
-35,
69,
68,
-37,
-33,
-4,
-37,
34,
31,
-6,
14,
28,
15,
-24,
-26,
-24,
5,
-19,
6,
-37,
-4,
5,
-54,
-5,
16,
28,
16,
-1,
-55,
-31,
-12,
-38,
0,
-26,
55,
26,
-33,
-25,
-19,
-14,
6,
46,
-4,
24,
-6,
86,
7,
16,
-43,
-52,
21,
-32,
-35,
-5,
0,
-51,
17,
0,
21,
7,
42,
-44,
1,
37,
-17,
-30,
-26,
-35,
113,
8,
-48,
-48,
57,
-2,
0,
26,
16,
-62,
17,
20,
-31,
4,
-9,
-5,
17,
5,
-39,
-33,
84,
-9,
48,
-8,
-25,
-54,
1,
-17,
-44,
-63,
25,
16,
10,
-36,
-11,
34,
13,
12,
0,
23,
-13,
-5,
-46,
-39,
-13,
37,
-24,
30
] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
On May 11, 1914, the council of the city of Lewistown, Fergus county, under the provisions of the Act of the legislature entitled “An Act relating to special improvement districts in cities and towns,” etc., approved March 14, 1913 (Laws 1913, Chap. 89), passed a resolution of intention to create a special improvement district for the purpose of excavating, filling and grading Janeaux Street, one of the principal streets of the city, and the intersections thereof (excluding the intersection of First Avenue and Janeaux Street), 'between the southwesterly boundary line of Sixth Avenue and the northeasterly boundary line of Dawes Street. After notice had been given as required by the Act, such proceedings were had that the district was created by resolution passed on June 8; it being designated as special improvement paving district No. 17. On July 1 a contract was let by the mayor and the city clerk, under the direction of the city council, to J. C. Maguire for the doing of the work in accordance with plans and specifications which had been prepared by the council, to conform to the grade as established by ordinance designated as Ordinance No. 293, enacted on June 14. The work was at once begun, and continued to completion on September 15. The plaintiff is the owner of lots 4, 5 and 6, and fractional lot 7, in block N-16, of the original town site of Lewistown, and fractional lot 3 of the Morase Addition thereto. Fractional lots 7 and 3 together constitute a lot of the same area as the other three. For present purposes, the three lots and the two fractional lots may be considered as four lots. They are each 50 feet in width by 90 feet in depth, and constitute a quadrangular area with a frontage on Janeaux Street of 200 feet, extending back to an alley running parallel with it through the block. The quadrangle is bounded on the northeasterly side by Fifth Avenue. Plaintiff’s lots therefore lie between Fifth and Sixth Avenues. On the front of lot 4, facing Janeaux Street, is a brick building used as a plumber’s shop. This extends several feet over on lot 5. On the rear of lot 4 there is a small residence which fronts on Fifth Avenue. On lot 6 there is also a small residence. There are no improvements on lot 7. Prior to the passage of the ordinance establishing the grade, Janeaux Street had followed the contour of the natural surface, except that in front of lot 7, and lots be tween it and Sixth Avenue, a narrow fill had been made by dumping waste material therein, in order to render more convenient the approach to Sixth Avenue to the southwest, the general level of which was about ten feet above that of all the plaintiff’s lots. The change of grade effected by the ordinance, except as noted, was from the natural contour to a uniform grade from the intersection. of Janeaux Street and Fifth Avenue, along the front of the entire block, to the intersection of the former with Sixth Avenue.
'This action was brought to recover damages for injury claimed to have been caused to plaintiff’s lots by the change of grade. It is alleged in the complaint:
“V. That between the eleventh day of May, A. D. 1914, and the fifth day of October, A. D. 1914, the defendant wrongfully and unlawfully, and without plaintiff’s consent, and against his will, and without taking any steps whatsoever to have appraised, or to pay, the damages done to plaintiff’s said property and accruing to plaintiff, and without any offer to pay plaintiff therefor, defendant caused the grade of Janeaux Street, upon which said lots fronted as aforesaid, to be greatly raised, changed, and altered, thereby placing the said property and the said buildings and permanent structures thereon far below the surface grade of said Janeaux Street, whereby plaintiff’s property and said buildings and structures were and are permanently injured, damaged, rendered inaccessible, inconvenient, and undesirable for the purposes for which they were and are designed, and necessitating upon the part of the plaintiff a large expenditure 'of money and loss of time in placing the said buildings on the grade of said street and filling and adjusting the said lots to such grade, to plaintiff’s damage in the sum of $5,000.”
In its answer the defendant admits that it caused the grade of Janeaux Street to be raised, changed and altered as alleged, but denies that plaintiff’s property was thereby damaged in any amount whatever. As a special defense in bar of the action, the answer then sets forth all the proceedings resulting in the creation of special improvement paving district No. 17. It then alleges, in substance, that the work was done under a contract let by the city to Maguire; that it was done strictly in accordance with the contract, to conform to the grade established by the ordinance; that the plaintiff wholly failed and neglected, during sixty days after the contract was let, to file a written claim for damages which would be caused to his said lots, as provided by section 13 of Chapter 89 of the Act referred to above; that by failure to file his claim within the time limited by the Act for that purpose he waived his right to claim damages; and that therefore his right to maintain the action is barred by the provisions of said section. On motion of plaintiff the court struck out all that portion of the special defense alleging waiver, leaving to be tried only the issues as to the fact of injury and the amount of damages to which plaintiff might be entitled. The plaintiff had verdict and judgment for $2,500. The defendant has appealed from the judgment.
In their brief, counsel for plaintiff object to the consideration of the appeal on the merits, and move for a dismissal of it on the ground that the record does not contain a copy of the judgment-roll, made up and certified as such. The record is substantially in the same form as was that before us in Stokes v. Long, 52 Mont. 470, 159 Pac. 28. In disposing of the second ground of the motion to dismiss the appeal in that case, we held that the record was sufficient to meet all the requirements of section 6799 of the Revised Codes. The motion is therefore denied.
The contention is made that the court erred in striking out the latter portion of defendant’s special defense. Section 13 of the Act is as follows: “At any time within sixty days from the date of the award' of contract any owner or other person, having any interest in any lot or land liable to assessment, who claims that any of the previous acts or proceedings, relating to said improvements, are irregular, defective, erroneous, or faulty, or that his property will be damaged by the making of any of the improvements in the manner contemplated, may file with the city clerk a written notice, specifying in what respect said acts or proceedings are irregular, defective, erroneous, or faulty, or in what manner and to what extent his property will be damaged by the making of said improvements. Said notice shall state that it is made in pursuance of this section. All objections to any act or proceeding or in relation to the making of said improvements, not made in writing, and in the manner and at the time aforesaid, and all claims for damages therefor, shall be waived by such property owner: Provided, the notice of the passage of the resolution of intention has been actually published and the notices of improvements posted, as provided in this Act.”
By a reading of this Act, giving special attention to section 19, it becomes apparent that, ,so far as it relates to damages claimed by a property owner in an improvement district for injury to his property by a change of grade, the legislature had in view two purposes: (1) To debar such owner from any claim for compensation for damage to his property which he anticipates will be wrought by a proposed improvement, if he fails to ascertain the amount and extent of it, and to give notice in writing thereof to the council within the specified time; and (2) if notice is given, and he is awarded damages, to enable the council to add the amount of them to the cost of making the improvement when it comes to spread the assessment upon the property included in the district. It is not disclosed by anything in the record upon what theory the trial court struck out the portion of the special defense. Counsel for the plaintiff: insist that its action can be upheld, either on the ground that section 18 is void as being repugnant to section 14 of Article III of the state Constitution, or that it is void, because violative of section 29 of the same Article of that instrument. The first of these provisions is: “Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.” To uphold the court’s action on this ground, counsel argue that this provision of the Constitution imposes upon the agency of the state, which may be clothed with authority to take or damage private property for public use, the duty (a) to ascertain upon its own initiative what will be just compensation for the property to be taken or damaged in order that a particular public purpose may be served, and (b)' to pay such compensation to the owner or tender it to him, before the taking or damaging occurs, and that section 13, supra, is clearly repugnant to it in imposing upon the owner who anticipates that his property will be damaged, the obligation to ascertain the amount of damages he will suffer and to make claim for it within the specified time at the peril of being altogether debarred from thereafter making any claim. Counsel for defendant contend that section 13 is merely a statute of limitations, and that, since it is within the power of the legislature to fix a limit within which an action may be brought upon any kind of claim, the section is not obnoxious to the objection made to it.
It must be conceded that the legislature is free to enact statutes of limitations because the Constitution does not deny it the power to do so. Such enactments may even be made to apply to causes of action already existing, provided only a reasonable time is fixed by the legislature in which parties may commence actions upon them before the statutory bar may be pleaded. (Guiterman v. Wishon, 21 Mont. 458, 54 Pac. 566.) If, however, we keep in mind the nature and object of statutes of limitation, it is apparent that the provision in question cannot be classed as such. The principle upon which statutes of limitation are based is that they are statutes of repose; their object being to suppress stale and fraudulent claims after the evidence of their payment has been lost, or the facts concerning them have become obscure from lapse of time or the defective memory, or death, or removal of witnesses. (25 Cyc. 983; Anaconda Min. Co. v. Saile, 16 Mont. 8, 50 Am. St. Rep. 472, 39 Pac. 909.) Section 13, supra, does not fix a limit within which the property owner may bring his action, but merely raises a conclusive presumption that he has elected to waive any damage lie will suffer by tbe change of grade, if he fails to ascertain and notify the city authorities of the manner and extent of it. In this it is distinguishable from a statute of limitations, application of which depends upon whether the time within which a particular claim may be enforced by action has expired. It falls rather within the class of provisions similar to section 3289 of the Bevised Codes. The purpose of this provision is to enable the city to examine the place where an injury occurs “by reason of any defect in any bridge, street, road, ’ ’ etc., to consult those who may be witnesses, and to have the opportunity to adjust and settle the claim and avoid litigation, if investigation discloses liability to make compensation. (Tonn v. City of Helena, 42 Mont. 127, 36 L. R. A. (n. s.) 1136, 111 Pac. 715.)
By many of the courts these provisions are classed as special statutes of limitation, in that the giving of the required notice is a preliminary step necessary to be taken to enforce the claim. (Schmidt v. Fremont, 76 Neb. 577, 97 N. W. 830; Belkin v. Iowa Falls, 122 Iowa, 430, 98 N. W. 296; Van Auken v. City of Adrian, 135 Mich. 534, 98 N. W. 15.) In our opinion, the better view is that the giving of the notice is of the essence of the right of action itself, without allegation and proof of which no recovery can be had. (Dolenty v. Broadwater County, 45 Mont. 261, 122 Pac. 919.) These remarks, however, are a digression remotely germane, if germane at all, to the real question at issue. The rule of construction applicable to the provision of the Constitution invoked is declared by the instrument itself. (Sec. 27, Art. III.) Expressed in terms clearly prohibitory, without words in itself or elsewhere in the Constitution expressly declaring it to be otherwise, it is a limitation denying to the legislature the power to authorize the taking or damaging of the property of the citizen without a fulfillment of the condition expressly imposed by it, viz.: “Without just compensation having been first made to or paid into court for the owner.” (Art. Ill, sec. 14.) By adopting it the convention modified the rule of the common law, which denied to the owner compensation lor infringements npon his right of free access to his property by changes in the grade of the street upon which it abuts (Less v. City of Butte, 28 Mont. 27, 98 Am. St. Rep. 545, 61 L. R. A. 601, 72 Pac. 140), and secured to him the possession and enjoyment of it free from interference with it by any means for any public purpose, until just compensation has been ascertained and made or tendered to him-. The making or tendering of compensation is thus made a condition precedent. On this subject this court said in Flynn v. Beaverhead County, 49 Mont. 347, 141 Pac. 673: “By force of this provision private property cannot be taken for a public use in invitum, except upon compensation first being made to the owner. In other words, the payment or tender of compensation, the amount of which has been ascertained in the manner provided by law, is made a condition precedent to the acquisition of any right by the' public. * * * Possession taken from the owner without compliance with this condition is wrongful, and ejectment will lie in favor of the owner to recover it. The fact that the wrongdoer is a municipal corporation does not affect the right to maintain the action.” If the making of just compensation is a condition precedent, then' it is beyond the power of the legislature to require the owner to do any act in order to secure what is guaranteed to him by the fundamental law.
When we come to examine the decisions of the courts of those states whose Constitutions contain provisions couched in the same or substantially the same terms as our own, we find them in hopeless conflict. For illustration: The courts of Ohio, Missouri and California uphold provisions of statute or city charters having, the same purpose and effect as section 13, supra. (Wabash R. R. Co. v. City of Defiance, 52 Ohio St. 262, 40 N. E. 89; Kansas City v. Duncan, 135 Mo. 571, 37 S. W. 513; Potter v. Ames, 43 Cal. 75; Sala v. Pasadena, 162 Cal. 714, 124 Pac. 539.) The courts of other states interpreting the Constitution as imposing upon the agency of the state the obligation to first make compensation to the private owner, with much more reason declare that the owner cannot he compensated by an opportunity afforded him to litigate for it, however long the time allowed him for that purpose. (Levee Commrs. v. Dancy, 65 Miss. 335, 3 South. 568; Kincaid v. City of Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820; Kime v. Cass County, 71 Neb. 677, 8 Ann. Cas. 853, 99 N. W. 546, 101 N. W. 2.)
In Levee Commrs. v. Dancy, supra, the court said: “Obtaining by grant from the owner, or by adverse possession, long enough to bar his claim to the property, or condemning and paying for it, are the only modes of obtaining private property for public use in this state; and no Act which devolves on the owner the duty of initiating proceedings for compensation for his property, as the condition of his obtaining it, is allowable, He cannot be required to become an actor under the penalty of losing his property and ‘due compensation’ for it, if he shall not. He may enjoy his own, secure under constitutional guaranty, until an inquest by public authority determines that it is required for public use, and fixes the price to be paid him for the sale df it, and this price must be paid or tendered before his right can be divested, and a right to ask for compensation in three months or three years is not a valid substitute for the constitutional right to ‘due compensation first being made.’ The objection that the claim for compensation was not made in time is therefore not maintainable.”
In Kime v. Gass County, supra, the court on this subject made use of the following very terse language: “If the legislature could rightly require of the land owner one affirmative and initiatory act as a condition precedent to obtaining damages, they might require of him any other, or a series of acts which might be difficult or onerous, or in some circumstances impossible of performance, and so the constitutional guaranty might thus be seriously impaired, or wholly frittered away. We are of opinion that the spirit, if not the letter, of the Constitution, requires that the public, seeking to appropriate private property to its use, should, unless damages have been waived by some affirmative and unequivocal act, take steps of its own motion to ascertain their amount and secure their payment, and that mere passive acquiescence by an individual in the appropriation of property, unaccompanied by any conduct indicative of affirmative assent thereto, should not, unless continued for the statutory period of limitations, be regarded as a waiver of his rights.”
Mr. Lewis, in his work on Eminent Domain (third edition, section 676), states his views thus: “These [constitutional] provisions are imperative, and any law which violates them is incapable of enforcement. * * * The same rule applies to a taking by municipal corporations as to others.”
The foregoing cases, except Kincaid v. City of Seattle, had under consideration the taking of property for public use, and not consequential injury caused by the change of grade in a street by order of the municipality. Yet, as pointed out in that case, they logically hold that a statute which requires the owner, whether his property is about to be taken or damaged, to initiate his right to compensation by affirmative act, is violative of the guaranty declared by the section of the Constitution, supra. We agree with this view, and therefore hold that the court properly struck out the part of the pleading setting up the bar of the statute.
Since this conclusion disposes of this branch of the case, we shall not examine the question whether the section of the statute in question is also violative of the other provision of the Constitution which guarantees due process of law.
At the trial plaintiff introduced evidence to show what it would cost to fill the lots and raise the buildings to the grade of Janeaux Street as established by the ordinance, including the construction of retaining walls along the alley in the rear and along the boundary line between lot 7 and the one adjoining it toward Sixth Avenue, and then rested. Counsel for defendant interposed an objection that it was incompetent and immaterial, because it did not tend to establish the correct measure of damages, because it did not tend to show that the market value of the property was diminished by the change of grade, and because it was not accompanied by other evidence tending to show that the filling of the lots and raising of the buildings would restore them to the same relative position with respect to the present grade of Janeaux Street as they occupied with respect to the grade of that street before the change was made. The court overruled the objection. Counsel for defendant entertained the view that the correct standard of damages is the difference between the fair market value of the property before and after the change in the grade had been effected, less the amount of benefits accruing to it by reason of the improvements. They called witnesses and offered to show by them that according to this standard of measurement plaintiff’s property had not been damaged to any extent. The court held that the evidence sought was incompetent and immaterial, and refused to permit counsel to examine the witnesses. The real inquiry presented by the contentions of counsel, therefore, is whether the court heard and submitted the case to the jury upon the correct theory of damages.
The general rule by which damages to real estate are to be measured is stated by Mr. Sedgwick as follows: “The general principle upon which compensation for injuries to real property is given is that the plaintiff should be reimbursed to the extent of the injury to the property. The injury caused by the defendant may be of a permanent nature; in such a case the measure of damages is the diminution in the market value of the property. # * * If ^ jnjUIy jg easily reparable, the cost of repairing may be recovered. But it must be shown that the repairs were reasonable; and if the cost of repairing the injury is greater than the diminution in market value of the land, the latter is always the true measure of damages. Strictly speaking, therefore, the cost of repairs is not the measure of damages, but only evidence of the amount of damages.” (3 Sedgwick on Damages, sec. 932.)
In 38 Cyc„ at pages 1126 and 1127, the rule is stated thus: “The difference in the value of land before and after the trespass is the general rule as to the measure of damages for an injury to the land itself, and this means the difference in value of the entire tract, not merely the ground at the exact place of injury. But where the land can be restored to its former condition at a cost less than the diminution in value, if it is not restored, the cost of restoration, plus compensation for loss of time, is frequently laid down as the measure of damages. However, the application of this principle is confined to cases where the cost of restoration is less than the difference in the value of the land before and after the trespass, and, of course, it is limited to cases where cost of restoring the specific land is less than the value of the land. Evidence of cost of restoration is admissible only to reduce, not to increase, the damages above the diminution in value of the land resulting from the trespass. ’ ’
In Volume 28 of the same work, at pages 107A-1076, we find this statement of the measure of damages for changes of grade and the like: “The general rule as to the measure of damage, whether for a change of grade, street opening, or other improvement, is that it consists of the difference in the value of the property affected immediately before and immediately after the making of the improvement, allowance being made for the particular use to which the property is adapted, and for direct benefit it has received by reason of the improvement. * * * Where the rule is adopted that the measure of damages is the change in market value, specific items of injury can be considered only in determining the difference in market value, not as the basis of specific awards of damages. An abutting owner has no right to damages for a change of grade, where the property is left as convenient of access as before and there is no depreciation in its market value, or in ease the market value of the property, including the use to which it may be devoted, will be enhanced.” Again, on pages 1079 and 1080: “If the particular property is benefited as much as damaged, there can be no recovery, and benefits accruing to property by reason of the improvement may be set off against damages, if such benefits are special, and not in common with those resulting to property in general; but, where an abutting owner is assessed for the cost of the improvement, the only benefit that can be set off is that which is in excess of the assessment levied against him.”
In their work on Taxation and Assessment (Volume 2, section 661), Page & Jones state the rule in this language: “If, by reason of a public improvement, injury is caused to private property for which the public corporation constructing the improvement is liable in damages, the measure of damages is the difference between the market value of the property as it was before the alteration and as it was immediately afterwards, subject to deduction for special benefits caused by such improvements.”
In McQuillin on Municipal Corporations, Volume 4, section 1991, the author says: “The measure of damages resulting to property from the change of grade of a street, or other public improvement, is the difference between the fair market value of the property just before the work was done and such value thereafter, less any special benefit and advantage thereto resulting from the improvement.”
The rule thus stated in varying terms is recognized by the courts generally. (Sweeney v. Montana C. Ry. Co., 25 Mont. 543, 65 Pac. 912; Enid & A. Ry. Co. v. Wiley, 14 Okl. 310, 78 Pac. 96; Hartshorn v. Chaddock, 135 N. Y. 117, 17 L. R. A. 426, 31 N. E. 997; Pedelty v. Wisconsin Zinc Co., 148 Wis. 245, 134 N. W. 356; Smith v. City of Kansas City, 128 Mo. 23, 30 S. W. 314; Stroker v. City of St. Joseph, 117 Mo. App. 350, 93 S. W. 860.) Tested by the rule laid down in these authorities, the evidence showing the cost of restoration was competent and material. In Hartshorn v. Chaddock, supra, the New York court held that, in the absence of evidence introduced by either party showing the effect of the injury upon the market value, evidence showing the cost of restoration was sufficient to sustain an award of damages. The evidence offered by the defendant, tending to show the market value before and after the installment of the improvement, was also competent, and in excluding it the court was in error. Defendant was clearly entitled to show if it could, that the value of plaintiff’s property was actually enhanced by the improvement, and that he was not entitled to recover anything. In case it could not show this, it was nevertheless entitled to show by the evidence, so far as it had value for that purpose, that the diminution in value was less than the cost of restoration. The court would not otherwise be in a position to submit the case to the jury in such a way as to enable them to ascertain and declare what compensation, if any, the plaintiff was entitled to. For this error the defendant is entitled to a new trial.
Throughout the trial counsel for the plaintiff assumed the position that the complaint was so formulated as to tender issue solely upon the cost of restoration of the property, and hence that the evidence of the market value of the property offered by defendant was incompetent, because it was without this issue. There is no merit in this contention. The allegations of the paragraph quoted supra may be criticised on the ground of indefiniteness, but they are broad enough to permit the introduction of evidence on any theory of the measure of damages. Hence defendant, under the denials of its answer, was entitled to introduce any evidence that would tend to show, that plaintiff’s property had not been injured or that the damage was less than claimed by him.
Counsel for plaintiff insist that, since no formal offer of proof was made by defendant disclosing what the witnesses would have" testified respecting the difference in the market value of the property before and after the change in the grade was made, this court cannot determine whether the trial court erred in refusing to allow counsel for defendant to question them. It is the general rule that when counsel desires to preserve for review a ruling which sustains an objection to a question put to a witness, he must show by an offer of proof what the answer to the question would have been. (Zvanovich v. Gagnon Co., 45 Mont. 180, 122 Pac. 272.) This rule does not apply, however, when the question itself indicates what evidence was sought to be brought out by it; nor does it apply to a ruling tbe effect of which is to exclude all evidence on a given subject, on the mistaken notion that it is not within the issues made by the pleadings. Under such circumstances, an offer of proof is not necessary.
Contention is made that the court erred in refusing to submit certain instructions requested by the defendant. What has already been said disposes of the contentions made in this behalf, and will be sufficient to guide the court on another trial.
The judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.
Mb. Justice Sanneb and Mb. Justice Holloway concur.
|
[
-18,
47,
28,
-48,
-23,
3,
0,
2,
-14,
34,
-40,
27,
-13,
39,
-36,
9,
-125,
-43,
9,
21,
-27,
8,
0,
-34,
22,
52,
-2,
-32,
-40,
35,
5,
-13,
-33,
45,
-32,
18,
17,
-2,
62,
-19,
25,
-20,
-104,
-40,
17,
56,
48,
-13,
75,
32,
-58,
-15,
-23,
41,
14,
-29,
-46,
-24,
-29,
32,
-40,
10,
-25,
30,
34,
16,
25,
20,
48,
-31,
-22,
-3,
-16,
-85,
49,
5,
-10,
-58,
-65,
-48,
-40,
32,
24,
-14,
-61,
33,
-70,
-24,
-15,
42,
33,
-63,
100,
45,
62,
10,
9,
-33,
-46,
0,
-71,
26,
-21,
-2,
-41,
-33,
-60,
30,
95,
43,
32,
-27,
-11,
-4,
3,
8,
79,
-12,
35,
9,
-8,
24,
-23,
-40,
-68,
-3,
-82,
21,
4,
-35,
-6,
-27,
49,
20,
58,
35,
-12,
36,
3,
35,
30,
-59,
-43,
-18,
-32,
4,
-106,
0,
-59,
-25,
-16,
58,
58,
20,
37,
-41,
-11,
-10,
5,
4,
22,
-16,
62,
-44,
-34,
-16,
-37,
47,
-51,
5,
26,
-24,
4,
-1,
40,
39,
40,
-15,
-47,
-14,
12,
-43,
24,
-6,
-8,
3,
8,
10,
-29,
16,
31,
-14,
-21,
-93,
2,
6,
-8,
-18,
-63,
10,
22,
-9,
13,
-36,
39,
-27,
-19,
46,
-5,
-13,
-7,
-42,
-51,
93,
-14,
55,
65,
-32,
27,
-25,
5,
52,
2,
0,
-48,
-10,
-21,
26,
46,
13,
-37,
-52,
34,
-40,
4,
16,
-31,
-6,
-82,
51,
45,
10,
-11,
28,
-8,
30,
8,
-2,
-7,
-3,
-2,
-35,
24,
-9,
3,
56,
52,
32,
49,
-7,
65,
15,
33,
-51,
51,
-1,
-47,
2,
-22,
4,
-25,
2,
25,
52,
-51,
24,
42,
-74,
-22,
9,
-8,
-37,
0,
14,
41,
41,
-1,
-3,
0,
3,
-62,
14,
-65,
20,
6,
15,
51,
-7,
-24,
-32,
8,
-6,
4,
1,
-25,
-1,
-17,
25,
37,
30,
64,
6,
8,
-11,
-62,
-7,
-4,
59,
30,
28,
-11,
-19,
18,
20,
-32,
-2,
-1,
51,
-72,
29,
53,
46,
24,
35,
-24,
1,
57,
61,
-7,
-27,
28,
-17,
54,
-8,
66,
27,
-29,
5,
11,
21,
51,
-42,
-5,
17,
-12,
-25,
45,
17,
24,
16,
73,
8,
-4,
-50,
-32,
-46,
-15,
0,
3,
-12,
-42,
-50,
42,
59,
31,
-32,
40,
-7,
17,
38,
11,
31,
-1,
-71,
18,
60,
62,
-16,
8,
-30,
67,
1,
-18,
31,
52,
-13,
15,
7,
6,
-37,
32,
0,
-8,
40,
-63,
71,
-64,
-18,
27,
-4,
35,
-37,
2,
-48,
-9,
-7,
-18,
-32,
-28,
27,
-76,
53,
48,
-22,
-7,
30,
49,
31,
30,
11,
-14,
47,
2,
15,
37,
-48,
-11,
10,
-23,
-12,
-53,
54,
17,
39,
2,
-20,
-2,
32,
17,
34,
0,
74,
-2,
42,
15,
28,
25,
42,
62,
-15,
-52,
33,
-30,
13,
-25,
42,
-71,
46,
-100,
20,
-77,
-7,
65,
-59,
63,
0,
3,
2,
-13,
-56,
35,
-39,
24,
18,
14,
-22,
-20,
41,
-29,
3,
47,
20,
21,
-61,
27,
-70,
-3,
18,
4,
1,
-1,
-22,
-2,
-57,
-76,
24,
-25,
53,
-15,
66,
38,
-15,
56,
-40,
19,
12,
-48,
-30,
-2,
21,
-15,
9,
-56,
-13,
0,
13,
-6,
36,
27,
-4,
-43,
-2,
-30,
32,
-32,
-30,
19,
54,
-14,
-65,
43,
-40,
43,
-17,
-40,
30,
-42,
-40,
15,
29,
11,
-8,
24,
-23,
-36,
-19,
-50,
-8,
-17,
70,
-16,
10,
-30,
0,
15,
12,
-7,
-66,
-40,
-33,
-83,
25,
39,
-38,
-5,
-47,
-44,
-34,
9,
-3,
3,
-7,
-14,
-58,
64,
22,
28,
-51,
-56,
38,
-21,
-32,
-47,
50,
-18,
4,
15,
61,
-39,
-36,
9,
-3,
29,
-29,
-2,
-55,
-19,
-21,
33,
3,
-8,
-15,
-32,
73,
-8,
32,
-5,
19,
47,
-44,
-13,
-12,
6,
1,
-43,
12,
-32,
32,
-28,
29,
4,
-15,
-45,
6,
24,
16,
-41,
-26,
41,
-12,
11,
-31,
-43,
-19,
-25,
26,
-16,
31,
14,
55,
-14,
40,
54,
-52,
16,
70,
19,
-19,
-6,
-27,
74,
-11,
51,
9,
-2,
-19,
40,
-1,
-38,
45,
0,
20,
-3,
18,
-23,
1,
-18,
12,
-6,
-14,
2,
5,
-52,
-2,
10,
-40,
59,
1,
-21,
-31,
-14,
0,
4,
-3,
3,
32,
-22,
-13,
-40,
35,
0,
25,
69,
15,
-65,
7,
35,
-21,
-15,
-61,
29,
14,
1,
69,
11,
11,
5,
24,
3,
31,
13,
37,
-87,
-61,
-7,
-39,
-42,
-23,
-73,
19,
-28,
65,
-28,
25,
-10,
-43,
-31,
7,
58,
-53,
-41,
-35,
11,
24,
-10,
-7,
44,
-2,
-45,
22,
-16,
-69,
-18,
-18,
20,
-55,
33,
10,
-5,
36,
9,
-11,
3,
50,
-16,
9,
28,
23,
-13,
3,
7,
67,
-39,
-17,
14,
-59,
-23,
-12,
-1,
-1,
-11,
-20,
37,
-46,
29,
16,
8,
17,
0,
-27,
-6,
60,
5,
-4,
-70,
-39,
-84,
-18,
-2,
-51,
-49,
16,
-13,
18,
42,
39,
-73,
32,
-16,
76,
-67,
-47,
-7,
26,
-2,
-49,
6,
6,
-22,
18,
-39,
-6,
8,
21,
40,
-39,
-4,
31,
-19,
-26,
34,
4,
-32,
-3,
36,
-28,
-21,
76,
-22,
3,
-27,
5,
69,
-24,
-45,
-24,
-76,
-2,
52,
49,
-39,
37,
34,
-13,
8,
-4,
63,
-53,
-32,
8,
51,
-25,
6,
-12,
-64,
20,
35,
-36,
65,
50,
-9,
22,
11,
40,
62,
56,
4,
-15,
62,
-9,
23,
15,
22,
31,
-29,
-10,
-27,
21,
70,
57,
-22,
-11,
1,
28,
-21,
6,
-23,
14,
-62,
-44,
-34,
16,
-12,
27,
-23,
-58,
-23,
52,
34,
14,
-35,
-49,
-30,
-6,
-38,
-14,
-75,
-60,
-17,
64,
37,
-21,
-41,
35,
-37,
-13,
-29,
32,
34,
86,
-66,
15,
3,
10,
-1,
1,
2,
59,
-70,
-45,
7,
14,
26,
45,
-21,
15,
53,
-49,
-23,
-2,
1,
-31,
-11,
42,
-24,
52,
-38,
-23,
19,
9,
-8,
13,
26,
-18,
22,
-51,
-12,
-27,
-5,
-44,
-43,
49,
-42,
66,
63,
-17,
-16,
22,
36,
-40,
-5,
-59,
88,
19,
-50,
5,
0,
3,
30,
-18,
-12,
-63,
36,
-31,
-14,
-20,
-21,
21,
28,
-9,
20,
8,
-67,
27,
-39,
-10,
79,
-43,
-16,
-53,
-7,
-3,
-33,
-4,
12,
26,
-1,
29,
-57,
-28,
48,
-40,
-88,
73
] |
MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
Plaintiff brought this action to recover the balance upon a promissory note for $440 dated August 28, 1912, and due January 1, 1914, upon which a payment of $65.50 had been made. The answer of the defendants admits the execution and delivery of the note, the payment pleaded, and sets forth a counterclaim and attempts to plead an affirmative defense in bar. There was a reply to the new matter and the trial which followed resulted in a judgment for defendants for $294 and costs. Upon motion of plaintiff, the court granted a new trial, and defendants appealed from the order.
1. After the entry of judgment, and within the time allowed by law, plaintiff filed his notice of intention to move for a new trial, specifying all the statutory grounds. He did not make any formal motion for a new trial and because of this • fact appellants contend that the court erred in making the order.
Our new trial procedure is statutory (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920), and our statute does not require that a formal motion for new trial be made. The notice of intention performs the function of such a motion. (Wastl v. Montana Union Ry. Co., 13 Mont. 500, 34 Pac. 844; Needham v. Salt Lake City, 7 Utah, 319, 26 Pac. 920; East v. Mooney, 7 Utah, 414, 27 Pac. 4; Storer v. Heitfeld, 17 Idaho, 113, 105 Pac. 55.)
2. Complaint is made that the court heard and determined the motion without notice to defendants. The record recites that “the motion having been regularly set, came on for hearing this day, Messrs. Blackford & Huntoon. appearing for plaintiff and the defendants not appearing. The plaintiff’s motion was by the court sustained and a new trial granted.”
While defendants were entitled to notice and an opportunity to be heard (sec. 7149, Bev. Codes), there is not anything in the recital above to indicate that they were not notified of the hearing, and since the court is one of general jurisdiction, the regularity of its proceedings will be presumed in the absence of a showing to the contrary. (Sanden v. Northern Pac. Ry. Co., 39 Mont. 209, 102 Pac. 145.)
If the motion was heard and granted without notice to [3] defendants, it was incumbent upon them to make that fact appear, and proper practice required them to move the court to have the order vacated as improvidently made, supporting their motion by affidavits showing that in fact notice of the hearing was not given. (Whitney v. Superior Court, 147 Cal. 536, 82 Pac. 37; 1 Hayne on New Trial & Appeal, sec. 164; 2 Spelling on New Trial & Appellate Practice, sec. 379.) Since the record does not disclose lack of notice, the error, if error was committed, is not subject to review upon this appeal.
3. As an affirmative defense in the nature of a plea in bar, defendants allege that on February 18, 1914, plaintiff agreed orally to employ defendants to perform certain work of the value of $60; to credit this amount on the indebtedness represented by the note; to accept a new note for $376 due September 15, 1914, and to cancel and surrender the note herein sued upon; that before defendants could perform the work or tender the renewal note, plaintiff, in violation of the agreement, commenced this action, and that defendants are ready, able and willing to perform the agreement in all things by them to be performed. A general demurrer was interposed to this so-called defense, but the record fails to show that it was ever passed upon. At the trial, over plaintiff’s objection, the court admitted evidence tending to prove the agreement, and instructed the jurors that if they found that the .agreement was made as alleged and was supported by a sufficient consid eration, the verdict should be for the defendants. In both instances the court erred.
The note sued upon constituted a contract in writing between the parties, and the effect of the agreement pleaded was to alter it by extending the time of payment and changing the amount due. Section 5067, Revised Codes, provides: “A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.” Since the contract pleaded rested in parol and was entirely unexecuted, it was impotent for the purpose intended and constituted no defense. (Kinsman v. Stanhope, 50 Mont. 41, L. R. A. 1916C, 443, 144 Pac. 1083.)
4. The jury first returned a general verdict in favor of the defendants for $294, and this verdict was received and filed. The court then ordered it stricken from the record and orally instructed the jury to return a verdict in favor of the plaintiff for the amount found due upon the note less any amount found due defendants upon their counterclaim, and at the same time submitted to the jury a form of special verdict. Acting under this direction, the jury returned a general verdict in favor of plaintiff for $179.85 and found specially “that there was a renewal of the note mentioned in this ease.” After this second general verdict had been received and recorded, the court ordered it stricken from the files and the original verdict reinstated, and upon that verdict and the special finding judgment was rendered.
Section 6756, Revised Codes, provides: “When the verdict is announced if it is informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.” The first verdict was not informal and it covered the issues submitted by the court. When it was received and recorded it passed beyond the control of the jury and beyond the control of the court, except that upon proper motion for a new trial it might be set aside, but not otherwise. (Harrington v. Butte, 4. & Pac. Ry. Co., 36 Mont. 478, 93 Pac. 640.) The subsequent proceedings by which the second general verdict and the special finding were returned, were altogether void.
There is no possible theory upon which the verdict in favor of the defendants can be justified. The items of the counterclaim amount to only $297.50, whereas the amount admitted to be due upon the note exceeded $400, and therefore plaintiff }vas entitled to recover the difference at least, according to defendants’ own theory. (Murray v. Haldorn, 54 Mont. 125, 168 Pac. 38.) The trial court extricated itself by granting a new trial, and it could not have done otherwise.
We need not refer to the conflicting evidence with respect to the items constituting defendants’ counterclaim.
It was unnecessary for plaintiff to appeal to the court’s discretion, for he was entitled to a new trial' as a matter of right.
The order is affirmed.
'Affirmed.
Me. Chief Justice Bkantly and Me. Justice Coopeb concur.
|
[
-18,
28,
-25,
10,
-1,
-32,
35,
-24,
-3,
60,
85,
-2,
28,
3,
-17,
-17,
-27,
-72,
25,
-20,
-35,
-32,
33,
-8,
21,
-12,
-67,
-36,
16,
6,
54,
49,
-41,
25,
-10,
2,
9,
-7,
49,
-7,
27,
80,
22,
-16,
-36,
-12,
7,
-39,
-20,
-47,
34,
-79,
-40,
29,
-14,
-13,
-73,
9,
-19,
26,
-11,
-62,
42,
-26,
-17,
-39,
18,
-19,
-2,
-2,
-69,
29,
46,
19,
-11,
-66,
-39,
-37,
-28,
-51,
28,
-53,
-48,
-18,
-3,
0,
12,
-56,
4,
-17,
40,
54,
-8,
-15,
-13,
14,
1,
-17,
53,
7,
-9,
-60,
-49,
7,
8,
1,
-44,
-8,
7,
9,
31,
3,
-21,
-25,
-65,
-8,
-6,
-6,
8,
-43,
4,
-2,
14,
4,
-37,
5,
42,
6,
54,
28,
-26,
5,
-61,
57,
-61,
-26,
21,
-42,
9,
24,
-7,
-69,
2,
-34,
13,
59,
38,
27,
-53,
1,
14,
45,
1,
89,
12,
-50,
2,
-45,
3,
10,
68,
19,
-57,
-14,
39,
51,
-25,
-44,
34,
-29,
-41,
6,
-47,
6,
-5,
28,
1,
-41,
3,
-50,
4,
54,
-9,
-49,
30,
20,
-17,
35,
42,
27,
-1,
36,
-26,
33,
8,
-3,
15,
-19,
62,
-13,
1,
-14,
1,
20,
-28,
12,
45,
-24,
54,
-13,
-32,
-7,
-20,
18,
-26,
-14,
58,
-54,
-7,
11,
-49,
-23,
-41,
4,
-40,
5,
41,
-17,
7,
22,
-51,
8,
-61,
27,
33,
-25,
-17,
21,
-12,
6,
-23,
-9,
15,
-52,
-12,
13,
19,
0,
-19,
-10,
9,
20,
-9,
9,
11,
13,
10,
-9,
-37,
-51,
14,
59,
0,
26,
-23,
-39,
11,
-1,
-17,
21,
-2,
-87,
6,
32,
33,
-41,
9,
10,
23,
23,
0,
-32,
43,
63,
-40,
27,
18,
22,
-3,
12,
-26,
-31,
30,
60,
34,
64,
8,
27,
-25,
41,
-16,
8,
15,
19,
-43,
-12,
7,
-2,
-71,
-37,
-3,
22,
-26,
-39,
31,
5,
-25,
24,
64,
-44,
38,
-6,
-1,
0,
13,
10,
15,
-31,
-48,
-6,
4,
30,
36,
26,
-16,
-17,
26,
4,
6,
5,
56,
-5,
-3,
-16,
11,
35,
-20,
-32,
-51,
48,
-72,
-19,
-65,
12,
26,
15,
-22,
-44,
0,
-1,
29,
-29,
55,
-40,
25,
17,
3,
-35,
-30,
10,
-20,
11,
-43,
-79,
-55,
-23,
19,
15,
-57,
44,
-26,
-26,
-16,
56,
83,
22,
-33,
-23,
-12,
53,
-48,
30,
45,
66,
-17,
12,
-12,
-6,
-48,
-32,
-16,
53,
-11,
-18,
-16,
-1,
-18,
-27,
1,
67,
3,
0,
-43,
4,
2,
-13,
13,
0,
-3,
-23,
45,
-29,
-21,
19,
21,
10,
56,
-26,
-19,
-13,
1,
38,
14,
-10,
-19,
62,
18,
-9,
14,
18,
22,
24,
-63,
28,
10,
-6,
8,
-23,
16,
53,
24,
-12,
0,
-18,
14,
8,
45,
19,
-29,
-21,
58,
-22,
-32,
18,
-11,
17,
21,
6,
-30,
27,
17,
-11,
0,
0,
-17,
59,
-30,
30,
48,
43,
-38,
3,
12,
48,
-33,
4,
-17,
-87,
-22,
25,
-3,
35,
5,
21,
-34,
-23,
-90,
-40,
7,
0,
-34,
-30,
-27,
36,
-30,
-20,
30,
-60,
-11,
18,
7,
7,
13,
-50,
69,
9,
50,
-21,
-8,
34,
56,
16,
-28,
-28,
-42,
-7,
-12,
7,
20,
-38,
-13,
-4,
6,
-36,
-28,
8,
-6,
17,
11,
-7,
4,
2,
-12,
21,
6,
10,
-32,
-1,
29,
7,
2,
-9,
8,
70,
7,
17,
9,
48,
8,
-44,
35,
56,
25,
22,
20,
35,
5,
-29,
0,
-37,
-22,
19,
15,
-17,
-25,
-18,
4,
-1,
34,
-61,
-28,
18,
-31,
-23,
-32,
-32,
16,
-9,
0,
2,
-4,
-8,
46,
13,
-26,
1,
22,
-69,
24,
62,
8,
5,
-54,
1,
4,
-60,
15,
-29,
32,
-11,
-2,
14,
7,
37,
-26,
-53,
-22,
-14,
38,
4,
-17,
-55,
35,
50,
65,
-35,
-53,
9,
-51,
18,
3,
-1,
39,
4,
-26,
6,
-2,
-3,
12,
-18,
8,
71,
15,
-17,
-11,
-18,
17,
59,
87,
7,
27,
19,
27,
-40,
0,
2,
16,
22,
0,
-18,
-25,
-1,
-50,
-9,
41,
11,
-31,
26,
1,
-3,
24,
-20,
11,
29,
8,
-28,
-12,
-39,
12,
-38,
-17,
19,
8,
-9,
-33,
-37,
-2,
13,
-2,
43,
8,
-41,
-23,
36,
17,
-3,
52,
-45,
-10,
-11,
15,
-70,
12,
1,
13,
32,
-33,
39,
27,
-12,
8,
-2,
-11,
-26,
8,
-7,
13,
23,
-19,
-26,
43,
36,
31,
30,
-22,
24,
44,
39,
-8,
-11,
38,
33,
-24,
47,
-40,
7,
-12,
-53,
-21,
-12,
18,
-5,
-7,
9,
-13,
31,
-22,
-20,
-24,
31,
40,
-28,
31,
11,
-34,
5,
-11,
-49,
-14,
20,
29,
19,
16,
-23,
-19,
42,
-15,
-34,
-28,
0,
-30,
-29,
-10,
-28,
-12,
32,
47,
-30,
27,
0,
-12,
31,
-2,
11,
22,
-1,
-3,
73,
11,
40,
-18,
0,
2,
-25,
-10,
13,
0,
20,
-13,
54,
-22,
-45,
30,
95,
-25,
22,
69,
5,
64,
-30,
13,
-25,
31,
48,
9,
-31,
-16,
3,
-1,
-54,
-43,
43,
40,
22,
36,
1,
-36,
-29,
-64,
46,
25,
-46,
8,
-3,
-37,
49,
53,
47,
-28,
17,
-67,
-45,
-45,
40,
0,
11,
-6,
14,
5,
-50,
6,
41,
-52,
-38,
-30,
-22,
-41,
-51,
20,
-2,
5,
13,
9,
8,
43,
-46,
-68,
41,
-51,
7,
18,
56,
14,
9,
-29,
1,
27,
6,
81,
21,
-35,
23,
-9,
0,
-6,
6,
5,
-16,
-15,
9,
-16,
-1,
-19,
20,
27,
-32,
-8,
-20,
61,
13,
4,
-8,
56,
34,
5,
-8,
0,
-5,
10,
25,
54,
-15,
31,
-43,
25,
8,
20,
-34,
36,
-14,
-5,
14,
-55,
-10,
20,
5,
0,
-20,
5,
24,
-4,
82,
-41,
-10,
3,
-24,
-7,
-68,
-40,
25,
-48,
-23,
8,
-35,
33,
-13,
-38,
-11,
-25,
19,
-4,
28,
12,
29,
16,
-4,
-48,
-5,
67,
-18,
-37,
-4,
16,
-78,
27,
-2,
4,
-44,
6,
16,
-20,
-31,
25,
-34,
-8,
28,
23,
-40,
-14,
18,
2,
-9,
13,
-22,
35,
30,
23,
-22,
34,
-43,
59,
-48,
-45,
11,
-23,
-9,
41,
-20,
43,
2,
-45,
8,
8,
-13,
14,
-69,
7,
33,
-41,
-27,
23,
-17,
30,
18,
-64,
33,
-5,
-49,
-29,
28,
1,
43,
11,
43
] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
In October, 1914, the Northern Pacific Eailway Company was engaged in constructing a passageway under its tracks in the yard at Glendive. In the course of the work it became necessary to move an iron or steel plate a distance estimated at from 100 to 200 feet, and to place it in position for use. The plate was about forty-four inches square, something more than an inch in thickness, and weighed 600 pounds, or thereabouts. Wester, the foreman in charge, detailed five men, including plaintiff, to do the work. After the plate had been carried about fifty feet, the men in front let their end fall, with the result that plaintiff — one of the two men carrying the rear end —received a blow in the abdomen which caused the injury of which he complains. He brought this action to recover damages from the railway company and the foreman, and charged them with negligence in failing to detail a sufficient number of men to perform the task properly. He prevailed in the lower court, and defendants appealed from the judgment and from an order denying their motion for a new trial.
1. There is a sharp conflict in the evidence throughout, but for present purposes we have adopted plaintiff’s theory generally. Our labors are greatly simplified by the frank statement of plaintiff’s counsel, in their brief, to the effect that the evidence offered by plaintiff establishes that the weight was not too great for him, that he could have sustained it, that he did not know at the time he received the injury that it was too heavy for the five men, and “that the injury was caused by the weight .slipping out of the hands of two or three of the men on the other side of the place, and was due to their fault alone. ’ ’ These conclusions from the evidence, except the last one, are not merely justified, but are commanded. The evidence in effect is that, when the five men reached the plate, three of them seized it by the front end, with their backs to the plate and their hands behind them, the edge of the plate resting in the palms of their hands; that plaintiff and Bosiek took hold of the edge of the rear end, their faces toward it and their hands in front of them; that in this manner they carried the plate about fifty feet, until they started up a slight incline, when, the two men behind failing to push forward on the plate, it slipped out of the hands of the three in front, and the front end fell to the ground.
Appellants contend that upon this testimony plaintiff should be held to have assumed the risk. If it were necessary to dispose of this contention in order to determine the controversy, we should be inclined to say that the facts of this case bring it within the general rule adverted to in Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268, 163 Pac. 560, and not within the exception applied in that case; but our view of the evidence renders it unnecessary to consider the question of assumption of risk.
It is a serious question whether the evidence is sufficient to establish negligence, even under the rule of absolute liability, erroneously adopted by the trial court. There is not a suggestion in the record, or an inference that can be drawn from it, that, if six or seven men had been engaged upon the task, the same result would not have happened, if they arranged themselves about the plate in the same general manner that these five men did. There were many other employees of the company present, but not one of these five men complained that the burden was too great for the number of men assigned to carry it. The plate was moved by them fifty feet or more without apparent difficulty, and no request for assistance was made. Plaintiff and one other man carried the rear end, and plaintiff did not know that the burden was too great. But if we assume that in point of fact the burden was too great for the number of men assigned to carry it, and that under the rule announced by the court the defendants were negligent, still the burden was upon the plaintiff to show that such negligence was the proximate cause of his injury, and in this respect he failed. His injury did not result from strain or overexertion, -but from the fact that the three men in front allowed their end of the plate to fall. It is apparent, then, that whatever caused the fall was the proximate cause of the injury; but neither plaintiff nor any one of his- witnesses testified that the excessive weight of the plate caused the fall, and .there are not any facts disclosed from which such an inference can be drawn. There is but one conclusion deducible from the plaintiff’s ease, viz., that the great weight was not the cause of the fall, but that the plate fell as the result of the clumsy method employed by the men in handling it and the failure of plaintiff and Bosick to keep it forward sufficiently to prevent it slipping from the hands of the three men in front. The manner in which the men should carry the plate — their arrangement of themselves about it — was a mere detail of their work which the master was justified in leaving to their own judgment and discretion.
It is elementary that the master is not responsible for an injury to his servant which results proximately from the manner in which the servants do their work. He is not required to supervise the disposition of his working force in carrying out the details of the employment, any more than he is required to direct the workmen in the use of simple tools and appliances. (4 Labatt on Master & Servant, sec. 1528.) The trial court should have directed a verdict for the defendants, as it was requested to do.
2. In passing, we call attention to instruction No. 3, given, as follows: “You are instructed that in this case it was the duty of the defendant Northern Pacific Railway Company to provide a sufficient number of servants to perform the work of lifting and carrying the iron plate in question with reasonable safety. ’ ’
The rule which measures the master’s duty has been stated and restated so often that it would seem impossible that any controversy over it could arise at this late date. He is required to exercise reasonable care to furnish a reasonably safe place for work, reasonably safe appliances, reasonably competent fellow-servants, etc. As applied to the facts of this particular ease, the utmost that the law exacted of these defendants was that they exercise reasonable care to provide a sufficient number of men to move this plate with reasonable safety. Kelley v. Cable Co., 8 Mont. 440, 20 Pac. 669, McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701, Kallio v. Northwestern Imp. Co., 47 Mont. 314, Ann. Cas. 1915A, 1228, 132 Pac. 419, and Morelli v. Twohy Bros., 54 Mont. 366, 170 Pac. 757, are a. few of the many eases decided by this court during the past thirty years in which the rule is stated. Not only has this court repeatedly called attention to the fact that the master is not an insurer of the safety of his employee, the most recent ease being Barry v. Badger, 54 Mont. 224, 169 Pac. 34, but we Have frequently directed attention to instructions couched in language like the one under review, and have pointed out the error —that by such an instruction the master is made an absolute insurer. (Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 425; Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884; Fearon v. Mullins, 35 Mont. 232, 88 Pac. 794.) Under instruction 3 the railway company was compelled to have in its service a foreman infallible in his judgment and in the exercise of his functions as vice-principal, or pay the penalty in damages for any injury to its employees. It is true that courts and text-writers, in referring to the rule by way of argument, frequently employ inept language; but, whenever it becomes necessary to state it, there is no difference of opinion.
A decision of the other question presented by appellants is unnecessary, and we decline to consider it at this time.
The judgment and order are reversed, and the cause is remanded, with directions to enter judgment for defendants.
Beversed and remanded.
Mr. Cheep Justice Brantly and Mr. Justice Sanner concur.
Motion for rehearing denied October 21, 1918.
|
[
-15,
-6,
39,
7,
-23,
-19,
-30,
-39,
61,
2,
23,
0,
28,
-44,
-1,
-12,
-42,
-56,
-21,
28,
32,
-57,
61,
-42,
-39,
-8,
-31,
-7,
-9,
38,
39,
14,
-11,
23,
-1,
-4,
-19,
-49,
11,
-27,
37,
39,
-44,
-22,
58,
71,
89,
-1,
-8,
-17,
22,
0,
3,
2,
-51,
-7,
-34,
61,
1,
41,
34,
-48,
22,
27,
21,
-11,
38,
-7,
-19,
36,
-64,
40,
35,
-41,
-19,
-17,
-25,
23,
-46,
-60,
-9,
19,
-38,
-16,
-59,
40,
-41,
-3,
-12,
3,
18,
-6,
-16,
16,
-34,
-2,
-30,
-47,
-70,
8,
12,
30,
-31,
-54,
-19,
15,
-24,
-27,
23,
16,
7,
64,
-36,
29,
8,
-56,
29,
2,
14,
31,
8,
42,
23,
8,
-79,
1,
49,
-20,
12,
22,
-31,
11,
-12,
46,
-30,
13,
-5,
-9,
14,
46,
-10,
11,
17,
-41,
-24,
7,
-27,
46,
-18,
-19,
26,
-9,
33,
-84,
-6,
-49,
-17,
-8,
66,
24,
30,
-27,
63,
39,
-8,
21,
-12,
-45,
0,
50,
-27,
-13,
-8,
-52,
52,
34,
-31,
-36,
8,
-21,
-25,
-7,
6,
-30,
-37,
-26,
-4,
46,
37,
7,
41,
20,
-62,
-26,
-46,
3,
-29,
-25,
90,
-1,
23,
19,
-13,
-46,
-98,
34,
8,
26,
23,
-21,
70,
28,
-31,
6,
4,
31,
-29,
-44,
-11,
-21,
-7,
-7,
-40,
-15,
21,
27,
-39,
36,
59,
-5,
-10,
18,
37,
0,
41,
-20,
-13,
-24,
22,
-11,
40,
-33,
-48,
-40,
4,
-8,
1,
-5,
10,
5,
20,
-4,
-22,
-62,
5,
25,
-6,
-7,
-47,
-48,
27,
39,
-41,
22,
97,
27,
-20,
-25,
-32,
20,
5,
-16,
31,
-4,
-46,
-18,
46,
43,
5,
39,
-17,
25,
-14,
8,
-1,
20,
-39,
3,
-31,
23,
6,
-43,
24,
15,
37,
37,
58,
0,
-32,
-29,
-5,
-40,
30,
35,
15,
79,
-73,
30,
1,
1,
36,
-16,
7,
-9,
31,
46,
25,
-8,
27,
-41,
-67,
8,
-19,
-42,
-1,
-39,
-36,
13,
10,
29,
26,
67,
24,
61,
-55,
-42,
-8,
26,
31,
-25,
-8,
25,
41,
-73,
-60,
10,
2,
-62,
3,
3,
33,
17,
-2,
-64,
21,
26,
17,
-7,
21,
37,
56,
-18,
46,
21,
-34,
-35,
-49,
-58,
-53,
7,
13,
6,
29,
-56,
50,
0,
36,
72,
7,
66,
-10,
28,
25,
-36,
-16,
26,
42,
-12,
-35,
30,
-16,
2,
26,
82,
-15,
49,
-31,
60,
19,
-43,
0,
-13,
-57,
-5,
2,
-59,
6,
0,
-24,
-17,
-11,
-14,
33,
-43,
5,
-11,
2,
30,
2,
24,
53,
-35,
48,
45,
42,
-20,
40,
-86,
-18,
-31,
-2,
-43,
33,
-1,
-59,
3,
-9,
32,
-35,
-30,
-86,
-16,
7,
11,
12,
7,
24,
30,
0,
-29,
15,
11,
18,
-6,
5,
-2,
2,
-6,
81,
37,
-44,
27,
-11,
20,
-5,
18,
14,
-37,
21,
11,
4,
-2,
36,
4,
33,
5,
-7,
-23,
-25,
-46,
-18,
-5,
-5,
13,
-40,
-24,
-22,
-2,
61,
34,
26,
60,
-4,
-53,
-18,
1,
-50,
-29,
16,
-29,
-74,
5,
-5,
-28,
-8,
0,
56,
-46,
-5,
50,
-2,
8,
8,
14,
28,
42,
-37,
0,
3,
-6,
39,
-6,
-57,
-13,
-7,
-16,
-35,
-24,
-13,
-114,
-4,
-32,
-19,
27,
0,
-17,
3,
-3,
13,
-45,
-23,
-6,
32,
21,
-7,
-11,
-17,
25,
43,
28,
50,
19,
33,
6,
21,
-43,
-6,
21,
-13,
-26,
-41,
19,
11,
7,
17,
42,
-9,
14,
59,
-87,
-12,
35,
-36,
25,
-30,
14,
11,
31,
-10,
11,
10,
30,
-26,
35,
-18,
5,
26,
22,
-79,
37,
-29,
-4,
5,
3,
40,
-41,
-25,
44,
3,
29,
17,
-42,
-10,
35,
16,
-14,
-25,
-28,
15,
44,
-2,
-40,
-29,
-36,
-17,
-12,
-57,
23,
41,
-11,
22,
9,
-31,
48,
6,
-19,
-20,
6,
-24,
-2,
-19,
96,
3,
59,
37,
-3,
21,
15,
1,
13,
34,
20,
-5,
6,
-40,
-49,
-30,
84,
-28,
5,
1,
-2,
5,
7,
0,
23,
9,
50,
-65,
9,
-7,
10,
39,
-21,
-50,
-16,
-35,
23,
12,
-20,
11,
-1,
12,
9,
-5,
-44,
30,
-5,
5,
12,
51,
15,
33,
-2,
-18,
-39,
-27,
22,
-24,
-5,
-43,
-1,
37,
48,
17,
48,
40,
-82,
-22,
-51,
-24,
-27,
41,
9,
20,
54,
14,
-9,
59,
-18,
39,
-9,
-42,
20,
2,
16,
-11,
-40,
-39,
-59,
100,
-14,
-1,
46,
4,
72,
-3,
40,
6,
15,
54,
-8,
-47,
4,
-26,
-11,
-58,
9,
15,
-47,
-2,
-24,
1,
-10,
32,
-35,
4,
-6,
-21,
-17,
14,
8,
44,
-61,
-1,
-74,
-6,
32,
8,
-35,
23,
-71,
0,
-22,
-19,
-3,
-17,
-19,
-40,
-15,
12,
-17,
-14,
22,
-1,
54,
-3,
22,
0,
14,
-51,
41,
21,
27,
-11,
42,
-19,
11,
20,
14,
-52,
6,
-27,
24,
-29,
-31,
-47,
2,
9,
75,
-1,
-32,
-1,
-1,
-11,
-32,
47,
-24,
34,
-5,
-32,
18,
-49,
27,
2,
-27,
18,
-40,
26,
8,
-40,
76,
10,
-16,
55,
-34,
10,
-15,
-18,
42,
83,
-15,
-74,
40,
0,
5,
2,
36,
-25,
-4,
28,
13,
-96,
32,
63,
-56,
-74,
49,
-12,
40,
-53,
30,
32,
-21,
-13,
-45,
13,
-24,
-3,
16,
11,
-16,
-80,
60,
-26,
-26,
-56,
-11,
-53,
-17,
9,
47,
36,
-43,
-30,
-40,
-67,
-35,
51,
86,
-49,
-30,
-3,
-13,
3,
-16,
-39,
-30,
38,
33,
-35,
-25,
-19,
-26,
36,
-68,
10,
8,
37,
3,
55,
15,
34,
37,
9,
-29,
9,
-49,
-19,
1,
2,
-67,
-4,
16,
-5,
58,
9,
11,
-5,
34,
-17,
17,
-1,
11,
3,
-3,
-15,
11,
7,
67,
-51,
-10,
62,
-48,
3,
16,
-39,
-102,
-1,
-7,
-15,
-26,
-58,
44,
14,
-58,
-24,
-23,
-10,
29,
27,
55,
13,
35,
69,
-36,
-67,
3,
13,
-14,
13,
71,
16,
27,
9,
-37,
-5,
-64,
12,
-67,
21,
22,
13,
-46,
33,
-21,
30,
14,
-8,
-30,
57,
7,
32,
38,
57,
-40,
3,
-44,
-26,
17,
-38,
6,
-33,
33,
-17,
-4,
34,
1,
16,
22,
-6,
-54,
-19,
30,
2,
18,
-14,
12,
-1,
-33,
11,
34,
-5,
17,
36,
50,
-44,
-13,
-66,
-14,
27,
7,
29,
17
] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an appeal from the judgment of the district court of Silver Bow county. Trial of the cause was had before a jury. At the conclusion of plaintiff’s case a motion for nonsuit was made and denied. On motion of the defendants below, at the conclusion of all of the testimony, a directed verdict for the defendants was ordered. The appeal is from the judgment based on that directed verdict. A motion for new trial was made and denied.
The plaintiff, Harry Gerard, was during the time of the transaction herein attorney in fact for W. A. Clark, Jr. On behalf of Clark, Gerard entered into certain negotiations with Walter Hansen, as a result of which Clark purchased a half interest in the Hansen Packing Company by the acquisition of 300,000 shares of the 600,000 outstanding shares of the company. The defendant Sanner was during the times mentioned herein the attorney in Butte for Clark, and assisted Gerard and Clark in the transactions out. of which this suit arose. The arrangements for the purchase on the part of Clark of the Hansen Company stock were made in the Clark residence at Los Angeles, California, with Gerard, Sanner and Hansen present. In the agreement made at that time — December 9, 1928 — Clark personally offered to advance additional funds, not exceeding $300,000, to pay outstanding indebtedness of the company, and in his proposition he also stipulated that the company be reorganized.
On February 8, 1929, a directors’ meeting of the Packing Company was held, and at this meeting the directors approved the agreement made by Hansen and Clark above referred to. The meeting authorized the cancellation of the outstanding certificates and the reissuance of certificates in the amount of 600,000 shares of common stock; 270,000 shares of common stock were issued in the name of Clark, 270,000 in the name of Hansen and wife, 30,000 in the name of Gerard, and 30,000 in the name of Sanner. At that meeting it was agreed between Clark and Hansen that from their stock interests 60,000 shares were to be issued — 30,000 shares to Harry Gerard and 30,000 to Sydney Sanner. The minutes of. the corporation at the time the stock was reclassified and reissued pursuant to the agreement made recite: “The directions of the Board respecting the cancellation, issuance and reissuance of certificates of stock have been executed, except that by direction of Walter G. Hansen and W. A. Clark, Jr., the certificates for 30,000 shares of new issue to each of them were made respectively to Harry Gerard and Sydney Sanner. ’ ’
The stock certificate issued to the plaintiff was No. 42. On the stub of the stock book, marked certificate No. 42, appears the following notation: “Certificate No. 42 for 30,000 shares issued to Harry Gerard source: original issue. Stock dividend to W. G. Hansen.” From defendant Sanner’s testimony it appears that by endorsement at the time of issuance he transferred his stock to W. A. Clark. From this it appears that the Gerard stock came from the Hansen shares and the Sanner stock from the Clark shares.
Clark had prior to this meeting advanced $300,000 to liquidate the indebtedness of the company, and at the meeting the Hansens, Sanner and Gerard pledged their common stock as security for the amount advanced. This stock was delivered to an agent of Clark, one Mangam. On the same day and at the same meeting Clark, through Gerard, offered to accept 300,000 shares of new preferred stock to be issued in satisfaction of the obligation of $300,000 advanced by Clark to the company and secured by the pledge. In the pledge agreement made on that same day, it was provided that “this pledge shall continue until the whole of such repayment be made even though in liquidation of such obligation the Company should issue and deliver to said W. A. Clark, Jr., 300,000 shares of Class A stock with guaranteed dividends of six per cent, per annum, and even though he should in consideration of such Class A stock deliver to the Company a discharge of such obligation,” etc.
Subsequently, 300,000 shares of Class A preferred stock were issued to Clark and a receipt which appears on the stub of the certificate so issued recites discharge of the obligation, but it also provides that the acceptance of the Class A stock shall not release the collateral security including the shares issued to Gerard, Sanner and the Hansens.
On the same day — February 8, 1929 — Clark and Hansen entered into an agreement wherein they recited that each was to control in equal measure the affairs of the company, and that neither, by any method, was to secure more shares than the other, and that in the event of conflict Sanner’s shares were to be voted on one side, and Gerard’s on the other, and Gerard and Sanner in writing assented to that arrangement. This contract was made for Clark by Gerard, but Gerard testified without contradiction that Clark knew of the agreement and approved of it.
The shares of stock in question here are the 30,000 issued to Gerard from Hansen’s stock. The certificate for these shares was in the possession of the Clark interests during all the time in question, and were in Clark’s possession at the time of his death on October 3, 1934. The defendants herein, including Sanner, were executors of Clark’s estate, and as such executors they sold the 30,000 shares of Gerard stock. At the time Sanner received the 30,000 shares of stock issued to him he endorsed the certificate in blank, and his testimony is that he held the stock for Clark and did not at any time consider it to be his property. Gerard never endorsed the certificate representing the 30,000 shares issued to him. After all of the transactions hereinbefore set out, Gerard severed his connection with Clark.
On May 17, 1929, Sanner sent Gerard the following telegram:
“Please wire me your waiver of any interest or ownership of thirty thousand shares common stock Hansen Packing Company heretofore held by you in trust for Junior and please confirm your answering wire by letter.
“Sydney Sanner.”
In reply Gerard wired Sanner:
“Referring to yonr telegram of this date I herewith waive my fifty per cent interest in sixty thousand shares of Hansen Packing Company stock given to you and myself by W. A. Clark Jr. and Walter Hansen provided you also waive your interest to fifty per cent thereof this will confirm similar statement already made to Buck Mangam and Walter Hansen am writing them and Junior.
“Harry Gerard.”
On the same day Gerard sent wires to Mangam, Clark and Hansen which substantially were the same, leaving out the address and heading. The body of these wires being: “Referring to telegram received today from Judge Sanner this will confirm my statement heretofore made to you and Buck Mangam that I will waive my fifty per cent interest in sixty thousand shares of Hansen Packing Company stock given to Judge Sanner and myself by W. A. Clark, Jr. and yourself, providing Judge Sanner also waives his interest to fifty per cent thereof.” The wires to Mangam and Clark were essentially the same.
In reply to Gerard’s wire to him, Mr. Sanner sent the following wire: “Re your telegram I regarded the Hansen shares issued to me as a trust from the beginning and have waived all interest therein.”
The complaint alleges conversion of 30,000 shares of stock in question by defendants individually and as executors of the Clark estate, and it seeks damages in the sum of $120,000, the alleged value of the stock at the time of conversion, with interest from the date of conversion, and prays that the judgment against the executors be adjudged a debt of the estate of W. A. Clark, Jr., deceased, and that it be paid in the course of administration. The answers of the appearing defendants were in substance the same, in that they contained a general denial of conversion and the alleged resulting damages, and pleaded affirmative defenses that the action was barred by certain statutory provisions. The plaintiff’s reply, which contained a general denial of the affirmative defenses, also alleged as a defense to each that the defendants severally resided outside the state of Montana, save for a few short visits to Montana during the period between the date of the alleged conversion and the commencement of the action in the district court.
In passing on the motion for a directed verdict, the court must concede as true all the evidence supporting the view of the plaintiff, giving him the benefit of all legitimate inferences. (Mitchell v. Northern Pac. Ry. Co., 63 Mont. 500, 208 Pac. 903.) Plaintiff’s evidence must be taken as true and must be regarded in the light most favorable to him. (Staff v. Montana Petroleum Co., 88 Mont. 145, 291 Pac. 1042; Childers v. Deschamps, 87 Mont. 505, 290 Pac. 261.)
We believe the district court erred in directing a verdict for defendants, under the rule stated in the preceding paragraph. A complete and thorough examination of the record and the pleadings convinces us further that the issue of title should have been withdrawn from the jury. The testimony shows conclusively and without contradiction that the 30,000 shares of stock in question were issued to Gerard from the Hansen stock, and not from the Clark stock.
It is defendants’ contention that regardless of where the stock came from, Gerard held it as trustee for Clark, since he was Clark’s agent, and to hold otherwise would be to allow him to perpetrate a fraud upon his principal. No citation of authority is necessary to refute this argument, since, as has been indicated above, Clark knew of the issuance of the Hansen stock to Gerard and in fact suggested it at the meeting held in Los Angeles. •
The lower court ruled that the stock was not held as a pledge when it sustained an objection to an offer of proof made by defendants that the obligation had never been paid. The court was correct in this ruling because certainly the issuance of the 300,000 shares of Class A stock discharged the obligation upon which the pledge was based; and even though an agreement was made by Gerard and the others that the pledge was to remain though the obligation was discharged, the payment of the obligation terminated the pledge. The transaction was in effect an accord and satisfaction. (Secs. 7456, 7458, Rev. Codes.) And this court has held that where the obligation for which a pledge is given no longer exists, the pledge arrangement is no longer effective. (National Park Bank of New York v. American Brewing Co., 79 Mont. 542, 257 Pac. 436.)
Defendants take two positions in supporting their views in this case. The first position is that Gerard never was the owner of the stock in question. The second is that Gerard was the owner of the stock in question and pledged it to Clark. These two positions cannot be reconciled.
In support of the first view taken by the defendants, in addition to the contention that by reason of Gerard’s relationship with Clark, he was the trustee of the stock in question in behalf of Clark, defendants lay great stress on the testimony of the witness Mclnerney. In this testimony the witness recited that at a meeting in Los Angeles in the presence of Clark ‘ and possibly Walter Hansen,” in reply to a question from Mr. Clark, Mr. Gerard had said that he got nothing out of the Packing Company deal, and further that he considered himself “merely the holder of that stock and not the owner.” This is the only testimony which purports to overcome the legal effect of the fact that the stock in question was issued to Harry Gerard and stood in his name on the books of the corporation at the time the stock was sold to Sullivan, trustee. This testimony attempts to raise the question as to the equitable ownership of the stock in someone other than Gerard, and as to the equitable ownership of the stock it does not purport to put it in Clark. It is not sufficient to raise an issue of fact as to whether Gerard had sufficient interest in the stock in question to maintain the suit as against these defendants.
We cannot presume that Clark was the owner — equitable or otherwise — of the Gerard shares of stock, for to do that would be to presume fraud on the part of Clark, since by his agreement with Hansen he agreed not to acquire a greater number of shares than Hansen and thus gain control of the company. There is no intimation in any of the testimony that Clark actually was the owner of the stock and that Gerard was the trustee in his behalf. Since Gerard was the holder of the legal title to the stock, and since the Clark interests were not the equitable owners of the stock, and since the stock was not held or sold as a pledge by the Clark interests, but one question remains for discussion, and that is as to the effect of the various telegrams and letters which defendants contend operate to transfer the 30,000 shares of stock from Gerard to Clark by what they call a “waiver.”
“Waiver” has been well defined, and this court in Northwestern F. & M. Ins. Co. v. Pollard, 74 Mont. 142, 238 Pac. 594, 596, sets out its essential elements. Waiver requires two parties — one party waiving the right, and another receiving the benefit of such waiver. “Waiver must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless so intended by one party and so understood by the other.” (Northwestern F. & M. Ins. Co. v. Pollard, supra; see, also, Mundt v. Mallon, 106 Mont. 242, 76 Pac. (2d) 326.)
The various telegrams and letters do not indicate the second party to the transaction, and the inference may as well be drawn that the waiver was for the benefit of Hansen as for Clark. In fact, on the basis of the testimony, it would not be logical to assume that the second party was Clark, the only logical inference being that the second party was Hansen.
It is well settled that in the absence of acts constituting estoppel there must be consideration for waiver. “A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance.” (27 R. C. L. 910; see, also, 67 C. J. 296; 40 Cyc. 263.) For leading-cases supporting this rule, see Hughes v. Lansing, 34 Or. 118, 55 Pac. 95, 75 Am. St. Rep. 574; Idaho Grimm Alfalfa Seed Growers’ Assn. v. Stroshein, 42 Idaho, 12, 242 Pac. 444, 47 A. L. R. 916; Schindel v. Danzer, 161 Md. 384, 157 Atl. 283; Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 79; Marfield v. Cincinnati, D. & T. Traction Co., 111 Ohio St. 139, 144 N. E. 689, 40 A. L. R. 357.)
Here we can find no consideration for the so-called waiver. The testimony of Sanner is that there was no monetary consideration. Monetary consideration is not necessary; however, there must be some benefit conferred upon Gerard or some additional burden placed upon Sanner before we can say that there has been consideration for the contract. The transfer of the stock does not benefit Gerard. However, benefit is conferred upon Sanner as a representative of the Clark estate by the transfer. Neither can we find any additional burden upon Sanner. The testimony is that he had previously transferred the stock by endorsement to Clark, and his own testimony is that he at no time claimed any interest — either equitable or legal — in the stock. Therefore, he did nothing in addition to what he had already done and the element of a burden upon the one party of the contract is lacking.
Defendants rely upon the statutory rule that a written instrument is presumptive evidence of consideration. (Sec. 7512, Rev. Codes.) Also that the burden of proving that there was no consideration was upon Gerard. (Sec. 7513, Id.) This presumption was sufficiently rebutted not only by Gerard but by the witness Sanner himself when he testified that he paid nothing to Gerard for the waiver, nor did he offer to pay him anything.
It is urged that the element of estoppel is sufficient to support the waiver. The doctrine of estoppel has been crystallized into statutory form in Montana — subdivision 3, section 10605, Revised Codes. This section has been construed to require all of the necessary elements of estoppel at common law. (Waddell v. School District, 74 Mont. 91, 238 Pac. 884.) What constitutes estoppel is difficult to define by set rule, although there are numerous definitions of the doctrine. “Equitable estoppel rests largely on the facts and circumstances of the particular case.’’ (10 R. C. L. 689.) This court has said, however, that all the usual elements must be found to exist; otherwise estoppel does not arise. (Lindblom v. Employers’ Liability Assur. Co., 88 Mont. 488, 295 Pac. 1007.)
The basis of defendants’ theory that estoppel exists here is founded on the idea that Gerard by his action induced defend ants to believe he held the stock as trustee for Clark. Sanner’s testimony is, “No portion of that stock came from Mr. Clark.” Mr. Sanner knew of the transaction and all its details from the beginning, and one of the indispensable elements of estoppel— ignorance of the facts in question by the party who invokes the estoppel — is lacking. Gerard, in answer to Sanner’s telegram, definitely avoided saying that he would turn over the stock to Clark as requested by Sanner. In addition to that, even though there had been some of the element of ignorance present, the defendants have failed to show in any way a change in their position in reliance on the alleged waiver, sufficient to satisfy the requirements of equitable estoppel.
But it is urged by the defendants that even though there may have been no waiver in behalf of Clark, there was in behalf of Hansen, and that, therefore, Gerard could not maintain the action. Whether there was a waiver in behalf of Hansen is not here in issue; but granting that there was, Gerard might still maintain the action since he was the legal owner of the stock and entitled to its possession. (Bethel v. Gieble, 101 Mont. 410, 55 Pac. (2d) 1287, 104 A. L. R. 1150; Swords v. Occident Elevator Co., 72 Mont. 189, 232 Pac. 189.)
It appears, then, that there could be no object in sending this matter back for a new trial, except as to the amount of damages to be awarded Gerard. Defendants’ own testimony shows that Gerard has at least the legal title to the stock, and that, as a matter of law, the stock was not held in pledge or sold as a pledge; and further, the so-called waiver is of no effect since it is not founded either on good consideration or on equitable estoppel. Therefore, the judgment is reversed and the cause remanded with directions to the district court to proceed in accordance with the views expressed therein, and to submit to a jury the question of damages only. It is so ordered.
Mr. Chief Justice Johnson and Associate Justices Angst-man and Arnold concur.
Rehearing denied March 20, 1940.
|
[
29,
55,
-4,
18,
-29,
-5,
19,
27,
-16,
56,
62,
48,
-3,
6,
-37,
-2,
4,
-46,
7,
32,
7,
11,
-70,
-35,
8,
15,
4,
-19,
16,
16,
-5,
-23,
22,
-54,
11,
42,
-67,
9,
24,
-33,
-13,
10,
39,
-28,
6,
38,
7,
-41,
38,
-13,
53,
-13,
16,
19,
79,
-7,
-26,
26,
-22,
11,
0,
-69,
47,
66,
69,
-19,
-26,
22,
19,
-21,
3,
-33,
1,
-18,
44,
-61,
19,
-19,
-49,
14,
-3,
-3,
-9,
-14,
-66,
3,
-46,
-18,
-10,
10,
18,
-43,
32,
41,
2,
8,
-29,
-17,
-48,
21,
45,
-59,
0,
-30,
36,
-41,
-20,
33,
52,
28,
-50,
20,
-17,
-18,
-15,
-19,
11,
-8,
4,
8,
27,
-3,
-7,
17,
21,
15,
11,
43,
23,
-1,
-52,
-1,
-2,
-10,
21,
38,
-28,
-57,
-40,
3,
-5,
66,
-33,
-94,
-36,
60,
-36,
-15,
-2,
-25,
-3,
-33,
14,
61,
10,
-41,
5,
7,
74,
-55,
-66,
-55,
-6,
-9,
-19,
33,
21,
-34,
-50,
-43,
0,
-15,
-17,
-32,
26,
53,
67,
22,
-16,
-34,
34,
5,
22,
-30,
13,
-3,
-16,
28,
16,
2,
41,
-28,
34,
9,
-82,
11,
6,
-13,
59,
45,
2,
-11,
-35,
19,
-36,
15,
43,
10,
25,
-8,
10,
-6,
20,
-46,
-40,
9,
-75,
-55,
16,
-52,
28,
18,
-50,
31,
18,
9,
2,
2,
7,
6,
-53,
32,
-4,
11,
7,
-18,
41,
5,
-7,
-11,
28,
-69,
-39,
-30,
-8,
3,
-33,
-1,
32,
37,
-35,
-31,
0,
61,
-13,
40,
-58,
-9,
-8,
24,
13,
11,
15,
45,
13,
-60,
-7,
-13,
-17,
14,
37,
20,
68,
16,
-54,
-47,
40,
-24,
19,
15,
35,
-83,
17,
5,
-18,
-5,
-42,
3,
-15,
-30,
30,
52,
33,
-52,
69,
21,
-40,
-47,
0,
-27,
-50,
-20,
-43,
21,
3,
20,
-47,
30,
33,
28,
-62,
-32,
-28,
-39,
-24,
-30,
-22,
28,
-8,
14,
42,
35,
-19,
15,
41,
60,
-14,
29,
18,
20,
-41,
-6,
-72,
-2,
-61,
-21,
12,
0,
13,
9,
21,
-20,
14,
25,
-39,
0,
16,
46,
5,
-21,
-3,
-73,
-52,
29,
-26,
-12,
23,
6,
0,
8,
57,
-16,
-8,
-25,
-19,
15,
-26,
-13,
0,
62,
-11,
69,
3,
-11,
49,
20,
-66,
-2,
-24,
-34,
-62,
0,
21,
-9,
26,
12,
57,
16,
-56,
23,
0,
18,
-15,
42,
38,
-9,
-15,
-7,
-32,
-33,
-52,
20,
32,
-36,
-15,
-32,
32,
-20,
11,
-5,
3,
-6,
-17,
-21,
8,
-100,
27,
8,
4,
27,
66,
-29,
7,
-1,
33,
-40,
32,
0,
-43,
-11,
-39,
39,
-15,
-9,
-22,
-39,
-11,
40,
37,
-7,
20,
22,
-29,
27,
31,
4,
1,
28,
47,
-2,
-12,
89,
-2,
80,
-26,
72,
24,
0,
26,
-9,
11,
20,
36,
-25,
-17,
-8,
107,
-20,
-16,
34,
-3,
20,
31,
-23,
-7,
26,
-45,
-2,
2,
17,
-41,
7,
-14,
23,
-28,
14,
14,
-14,
19,
37,
62,
20,
49,
-22,
-23,
-36,
-7,
-25,
44,
-62,
-44,
-82,
29,
-19,
14,
18,
26,
16,
-33,
45,
21,
35,
12,
-25,
1,
38,
-26,
-15,
16,
86,
15,
8,
-77,
19,
-59,
-32,
55,
-39,
21,
-24,
-13,
-12,
-63,
-17,
-11,
16,
49,
-20,
-39,
-21,
-26,
-82,
1,
-7,
0,
49,
-16,
1,
29,
-15,
13,
48,
36,
34,
21,
35,
-1,
12,
-57,
32,
-52,
23,
-39,
11,
-2,
-7,
-39,
-36,
-31,
32,
5,
7,
28,
48,
52,
-19,
-24,
7,
3,
10,
39,
21,
-47,
-21,
-38,
12,
-7,
-27,
-80,
32,
-24,
-37,
-31,
22,
-45,
7,
30,
9,
-3,
-16,
-45,
15,
-11,
-24,
-85,
-50,
-25,
19,
28,
-25,
-43,
41,
6,
32,
15,
-42,
1,
-17,
49,
6,
14,
-26,
29,
-8,
6,
9,
-62,
-25,
12,
67,
8,
1,
-13,
-6,
-6,
65,
13,
-2,
-102,
8,
24,
-8,
-17,
31,
0,
-43,
19,
48,
58,
-6,
18,
20,
4,
8,
23,
-15,
47,
0,
48,
-17,
-31,
-2,
-44,
-62,
8,
-15,
20,
55,
25,
18,
26,
-6,
12,
-14,
17,
-3,
-6,
16,
19,
70,
24,
1,
-8,
-4,
7,
-31,
24,
10,
1,
39,
-25,
41,
-4,
45,
-12,
24,
24,
-9,
10,
-62,
-27,
-4,
17,
41,
18,
-8,
-29,
-10,
-58,
-10,
-5,
-46,
-15,
-30,
-15,
20,
10,
19,
-74,
-45,
-16,
-65,
32,
-18,
29,
13,
-23,
24,
-13,
8,
65,
-23,
29,
0,
-2,
48,
-1,
-75,
59,
-14,
-14,
-67,
-12,
53,
-24,
86,
-27,
12,
-23,
-15,
-9,
9,
9,
67,
24,
-13,
-52,
36,
-20,
9,
3,
-27,
-57,
23,
8,
32,
-16,
-46,
12,
-43,
2,
32,
9,
-10,
16,
-44,
25,
69,
86,
29,
-62,
-56,
-24,
40,
-29,
-25,
-19,
53,
24,
-10,
-16,
13,
4,
-9,
5,
26,
-19,
-79,
-28,
13,
-34,
1,
-44,
49,
20,
-81,
-22,
76,
0,
-23,
2,
2,
34,
-50,
52,
-27,
8,
-26,
-14,
29,
-23,
-29,
20,
-5,
54,
-59,
-2,
15,
-19,
57,
27,
23,
-42,
31,
1,
-1,
71,
21,
-12,
-36,
-36,
30,
-12,
12,
8,
-56,
-28,
11,
43,
-43,
-6,
-19,
-26,
57,
-31,
-18,
-12,
-20,
26,
45,
7,
13,
-47,
-12,
28,
-41,
-18,
-29,
-73,
45,
-15,
-23,
8,
-4,
-15,
34,
-76,
-32,
26,
-4,
-11,
64,
11,
-1,
-1,
7,
-6,
64,
-6,
37,
-37,
-27,
-27,
-19,
40,
-27,
-5,
-55,
8,
42,
-46,
-29,
26,
57,
28,
48,
33,
-7,
-10,
17,
38,
-33,
-9,
38,
-55,
-9,
-17,
1,
-21,
43,
33,
-37,
-78,
-6,
11,
24,
-7,
41,
25,
42,
-42,
23,
53,
9,
4,
4,
-58,
-7,
14,
-11,
29,
19,
-17,
23,
18,
4,
25,
-28,
-43,
19,
31,
29,
-61,
32,
18,
-11,
30,
-38,
-21,
-7,
-23,
4,
10,
23,
10,
-45,
-38,
25,
34,
-48,
-23,
-39,
-52,
-23,
-19,
-25,
27,
-8,
20,
0,
58,
31,
10,
33,
4,
-22,
23,
-38,
19,
12,
-20,
7,
45,
-2,
14,
-16,
9,
-46,
14,
-74,
20,
-44,
57,
-8,
15,
20,
-2,
-5,
-14,
9,
-1,
-9,
14,
2,
-11,
28,
16,
8,
11,
32,
-35,
-45,
10,
27
] |
MR. JUSTICE MORRIS
delivered the opinion of the court.
This is an appeal from a judgment entered by default in favor of the defendant. The default was taken after the defendant’s demurrer to the complaint was sustained, and the plaintiff failed to plead further. The basis of the appeal is that the complaint states a cause of action and the demurrer should have been overruled.
The allegations in the complaint show that on the 30th day of July, 1926, S. E. Brokaw, deceased, entered into a written agreement with the Northern State Life Insurance Company for the purchase of certain land in the county of Teton. Later, and prior to May 23, 1933, the defendant Lincoln National Life Insurance Company took over the assets of the Northern States Life Insurance Company. On the 26th day of January, 1931, the plaintiffs herein qualified as administratrices of the estate of Brokaw. On the 20th day of September, 1934, the plaintiffs tendered the deferred payments and interest due under the contract and demanded a conveyance. On the 26th of November the defendant sold and conveyed the land to one Luinstra. There are further allegations to the effect that the full sum of the contract was $3,000, and that $2,404.38 had been paid during the lifetime of the deceased Brokaw. The claim for damages includes the amount paid by Brokaw.
The contract, which is made a part of the complaint, provided for the payment of $500 at the execution of the contract, and $500 at or before the first day of November of the years 1927, 1928, 1929, 1930 and 1931. It further appears from the contract that in case Brokaw failed to make any of the above payments or of interest, then the whole amount should become due and “this contract shall, at the option of the party of the first part [insurance company], be forfeited and determined by giving to the second party [Brokaw] 30 days ’ notice in writing, of the intention of the first party to cancel and determine this contract, setting forth in said notice the amount due upon said contract, and the time and place when and where payment can be made by said second party.”
It is the above-quoted provision of the contract which is involved in this appeal. The plaintiffs allege that no notice was given pursuant to this provision, that the contract was in full force and effect at the time they made their tender of payment, and that, therefore the breach was on the part of the insurance company when it refused to convey title and later conveyed the land to another.
The defendant, by demurring and for the purpose of testing the pleadings, admits that no notice was given but contends that the contract was at an end at the time of the failure to make the last payment. The question before us is whether, under the allegations presented by the pleadings, the contract was in full force on September 20, 1934, when the tender and offer of performance was made by the plaintiffs.
In the case of Suburban Homes Co. v. North, 50 Mont. 108, 145 Pac. 2, Ann. Cas. 1917C, 81, a problem similar to the one here was presented to this court. In that case a contract involved the sale of real estate and contained a provision that upon default by the vendee to pay any installment, the vendor might at its option declare the contract null and void. Another provision made time of the essence of the contract. Another provided that a declaration of the intention to declare null and void should be mailed to the vendee. The suit by the vendor was for the cancellation of the contract. In holding that the vendor was entitled to cancellation, Mr. Chief Justice Brantly, speaking for the court, said :
“Although by its express terms time is made of the essence of the contract, and an option is reserved by the vendor to declare it terminated for failure to pay the purchase price at the date it falls due, or, if it is payable in installments, at the date that any one of the installments falls due, this provision may be waived by a failure to exercise the option, or by accepting a payment after it is due. The vendor cannot thereafter allege such default as a ground for declaring the contract terminated. (Pomeroy on Contracts, see. 357; 2 Warvelle on Vendors, sec. 820; Grigg v. Landis, 21 N. J. Eq. 494; Boone v. Templeman, 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947.) If payment is to be made in installments, default in the payment of any installment is a distinct breach and gives the vendor the right to declare a forfeiture. The right must be promptly exercised, however; otherwise, the right being exclusively that of the plaintiff, he will be presumed to regard the contract as still valid and existent.” To a like effect is the holding in Hammond-Dodson v. Slattery, 67 Mont. 489, 216 Pac. 323, and Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 Pac. 700.
We think the question in the ease at bar is answered by the above decisions of this court. Even though time is expressly made of the essence of a contract, yet the provision requiring notice of termination qualifies its operation. When a notice is required by the terms of the contract, such notice is essential to the exercise of an option for its termination. (17 C. J. S. 892.) It is alleged in the action at bar that notice was not given, and that the contract was in full force when the plaintiffs made a tender of the amount due, and that when the defendant failed and refused to perform the contract and convey title to them, they were entitled to treat the contract as breached and demand recovery of the amounts paid in accordance with the provision of section 8672, Revised Codes.
The defendant contends that the complaint was insufficient in that the exact amount tendered by the plaintiffs when they demanded conveyance, was not set out in the complaint. The words used by the plaintiffs were: “tendered to the said defendant the balance of the deferred payments and interest due on said contract.” As authority for its contention the defendant cites 1 Bancroft on Code Pleading, section 334, in which the author in speaking of allegations in an answer states: “He must state the amount tendered, which must, of course, appear to be sufficient.” The defendant also cites 62 C. J. 688, and the cases of Proebstel v. Trout, 60 Or. 145, 118 Pac. 551, and Harrison v. Beals, 111 Or. 563, 222 Pac. 728. The reason for this rule is stated in Harding, Whitman & Co. v. York Knitting Mills, 142 Fed. 228, 229, where the court said: “The averment of tender so made is clearly insufficient; the difficulty with it being that it gives no facts. As it stands, it is a mere conclusion, like an averment of payment, which, without more, is bad. * * * Tender is a mixed question, and the facts should be given in order that the court may see that as a matter of law it was good, to judge of which it is necessary to state how and to whom it was made, as well as the amount tendered, without which this cannot be known. ’ ’
It would seem that under this complaint a reference to the contract to determine the amounts to be paid, together with interest, and a reference to the allegation of the amount paid, it would be a simple mathematical calculation to give exactness to the tender. “That is certain which can be made certain.” (Sec. 8767, Rev. Codes.)
While all of the facts essential to a determination of the amount due are alleged in the complaint, yet it is our opinion that recovery under the complaint could be had by virtue of the rule that a tender is unnecessary when to make such tender would be a useless act. (Sec. 7567, Rev. Codes; O’Keefe v. Routledge, ante, p. 138, 103 Pac. (2d) 307.) The allegations show that a second tender was made December 10, after a conveyance had been made by the defendant to Luinstra. Thus the conveyance to Luinstra was a definite act from which the plaintiffs were entitled to treat the contract as breached by the defendant. Under such circumstances a tender would not be necessary for recovery; hence, if a recovery can be had without tender being made, then it would be unnecessary to plead it. (Compare effect of sec. 10682, Rev. Codes.)
It is also argued that when the plaintiffs asked for and received additional time within which to file an amended complaint, they were bound by their election and could not, on appeal, stand on their complaint demurrer to which was sustained. A leading Montana case is cited—State ex rel. Juckem v. District Court, 57 Mont. 315, 188 Pac. 137. This case supports the view urged by the defendant. However, the holding in the Juekem case in this particular has been overruled by the language used by this court in State ex rel. Crowley v. District Court, 108 Mont. 89, 96, 88 Pac. (2d) 23, where it is said: “The first question involved in this proceeding is whether by obtaining the order petitioner waived his right to question the ruling on the demurrer. Defendants’ contention is that when the demurrer was sustained, petitioner was required to elect whether to stand upon the amended complaint or to apply for leave to amend further; that by his application he obtained a right to amend which he did not have as a matter of course, and that by so doing he elected his remedy. However, it is clear that he already had that right by virtue of Court Rule No. 6, which provided that upon the sustaining of a demurrer the adverse party should have 10 days in which to amend unless other time was fixed by the court. Under the rule the petitioner clearly had the right to amend further if he chose to do so. What he applied for and received was not the right to amend, but further time in which to exercise that right if he so desired.
Rehearing denied September 24, 1940.
“It seems well settled, and defendants concede, that where the right to amend is granted by statute there can be no election by which the litigant is estopped. Manifestly it is immaterial that the right was granted by general court rule rather than by statute. By his motion for additional time applicant made no election of remedy by which he is precluded from questioning the ruling on the demurrer. As a matter of fact, he has made an election just the reverse of that assumed by defendants. The mere making and granting of a request for time to amend, or even for leave to amend, cannot properly be held to constitute an election to follow that remedy, in view of the well-established rule in this and other jurisdictions that an election exists only where a remedy is pursued to a final conclusion. Here the petitioner did not further amend and thus pursue the remedy to a final conclusion. Defendants are in error in contending that when the demurrer was sustained, petitioner was required to elect whether to stand upon the amended complaint or to apply for leave to amend further. He was required to elect whether to stand upon the amended complaint or to amend further, and by this application he has elected to follow the first course.”
The complaint is sufficient to state a cause of action, and the judgment is.reversed and the cause remanded with instruction to overrule the demurrer.
Mr. Chief Justice Johnson and Associate Justices Angst-man, Erickson and Arnold concur.
|
[
14,
-22,
-9,
4,
51,
11,
30,
-17,
42,
-18,
40,
-22,
43,
8,
-2,
30,
-55,
-39,
15,
37,
7,
-12,
-18,
25,
11,
-20,
3,
-4,
-16,
-29,
44,
-18,
-59,
-2,
-12,
17,
-19,
-52,
-29,
8,
48,
-37,
9,
-45,
35,
30,
20,
-45,
6,
-4,
68,
25,
20,
-8,
-27,
-25,
-10,
37,
-62,
0,
-39,
-65,
34,
47,
17,
-30,
44,
52,
40,
39,
16,
-19,
36,
13,
-1,
-31,
3,
-15,
-19,
-45,
-17,
-38,
51,
-1,
1,
42,
-1,
3,
33,
75,
-21,
-4,
-9,
-22,
-8,
-3,
1,
-20,
-86,
63,
41,
-34,
16,
88,
43,
24,
-4,
-14,
-9,
29,
-40,
53,
20,
-8,
-11,
32,
-14,
23,
-18,
-17,
-16,
40,
10,
-2,
2,
53,
-27,
21,
28,
25,
-48,
48,
10,
9,
-28,
-22,
-56,
-58,
15,
-15,
36,
-18,
-64,
-50,
0,
48,
72,
-20,
0,
-24,
-60,
-14,
52,
39,
34,
-78,
-15,
-52,
45,
-51,
58,
-49,
-5,
28,
-2,
-3,
-23,
-41,
21,
12,
7,
4,
-51,
-52,
9,
13,
69,
-46,
-56,
17,
10,
48,
-12,
-15,
1,
-39,
51,
-24,
6,
9,
65,
-54,
-21,
45,
-74,
18,
-12,
18,
70,
-15,
58,
-55,
24,
13,
-22,
21,
11,
-5,
0,
33,
22,
28,
-11,
-40,
-60,
17,
0,
-27,
-42,
-13,
37,
-25,
-55,
-19,
-6,
-63,
-18,
-36,
-20,
-54,
-55,
-13,
-9,
46,
-44,
9,
23,
-8,
-49,
5,
-11,
0,
-27,
-5,
7,
22,
-34,
12,
-13,
-7,
0,
-11,
24,
54,
59,
-5,
-3,
31,
-11,
-43,
0,
37,
-30,
10,
26,
-28,
-41,
-18,
37,
9,
-37,
-22,
39,
5,
18,
-70,
7,
9,
0,
-19,
23,
-26,
25,
2,
-19,
8,
25,
45,
8,
5,
15,
-15,
50,
-18,
26,
24,
16,
22,
24,
-20,
-24,
-8,
43,
-2,
8,
14,
-44,
14,
5,
-11,
-12,
-8,
22,
-55,
25,
34,
-30,
-3,
29,
-20,
33,
-8,
-15,
16,
65,
-41,
-20,
8,
-39,
35,
-37,
-17,
-4,
0,
-25,
-62,
30,
18,
-30,
31,
12,
40,
37,
-20,
0,
-6,
13,
55,
16,
43,
-45,
12,
-72,
38,
-52,
-4,
59,
21,
-15,
20,
30,
26,
1,
-45,
-5,
4,
-16,
-5,
18,
13,
28,
97,
-16,
-86,
19,
16,
-62,
14,
-14,
15,
42,
-5,
1,
6,
26,
3,
27,
-13,
-9,
-8,
-50,
29,
-15,
64,
-48,
-5,
-45,
-55,
-26,
-6,
8,
-29,
-44,
-50,
-15,
-47,
0,
-12,
-52,
-13,
-18,
-53,
38,
-40,
25,
-18,
-3,
15,
-13,
1,
26,
21,
67,
0,
-11,
-49,
73,
38,
-40,
-55,
21,
16,
-77,
-24,
-14,
-11,
8,
-65,
10,
30,
4,
108,
7,
0,
2,
10,
-11,
-13,
45,
2,
22,
15,
54,
-3,
-35,
7,
45,
-21,
0,
-6,
33,
19,
20,
0,
-22,
24,
45,
18,
22,
39,
30,
4,
-44,
-19,
1,
22,
-65,
-45,
24,
-46,
9,
-35,
2,
28,
38,
-22,
23,
-25,
-56,
-38,
31,
4,
-36,
-57,
-43,
-58,
28,
-10,
5,
-51,
4,
-10,
27,
50,
-1,
33,
8,
-47,
5,
32,
23,
-12,
44,
42,
47,
1,
-2,
28,
28,
-25,
36,
20,
-25,
19,
-40,
-9,
14,
27,
55,
-36,
-29,
-15,
-31,
-55,
-1,
-14,
8,
-49,
-31,
-7,
0,
0,
-32,
0,
-5,
-8,
38,
58,
50,
-48,
1,
-109,
13,
4,
16,
-10,
-5,
-5,
-36,
41,
33,
52,
-22,
1,
38,
5,
-59,
-18,
-62,
-19,
-62,
24,
0,
-11,
1,
-14,
-32,
-48,
6,
3,
-56,
-16,
-26,
-38,
-22,
54,
0,
29,
-22,
-22,
4,
-33,
24,
-5,
8,
-15,
61,
0,
11,
24,
-10,
28,
-30,
14,
-6,
-31,
-26,
-11,
44,
45,
-18,
15,
-43,
20,
18,
-1,
41,
8,
57,
-41,
0,
2,
38,
-16,
-15,
46,
-21,
0,
-26,
82,
40,
-51,
13,
-33,
24,
-24,
0,
28,
-54,
11,
12,
5,
10,
5,
-7,
-4,
-6,
21,
23,
-24,
-44,
-22,
36,
-26,
-29,
-31,
26,
33,
-13,
-8,
8,
-49,
-24,
-30,
-6,
4,
13,
-8,
7,
42,
63,
-23,
13,
-2,
46,
42,
11,
31,
29,
49,
48,
-37,
-7,
25,
13,
-52,
10,
-25,
-23,
-16,
-26,
-19,
-23,
23,
-4,
2,
2,
14,
13,
-16,
-8,
-9,
14,
30,
-36,
25,
-33,
-16,
-9,
26,
0,
-58,
-14,
-42,
-29,
12,
23,
-20,
-31,
8,
-7,
-28,
1,
13,
-22,
9,
61,
38,
-43,
40,
-1,
35,
-25,
41,
-51,
27,
2,
-68,
-9,
13,
17,
-7,
-18,
66,
-23,
17,
23,
29,
18,
15,
3,
-4,
-10,
37,
6,
-43,
-31,
15,
5,
-42,
29,
28,
15,
77,
0,
-5,
35,
-70,
-26,
-16,
-8,
-26,
-14,
11,
5,
-18,
47,
12,
12,
-9,
-14,
-8,
-17,
39,
-30,
51,
18,
13,
30,
40,
-49,
-5,
19,
-30,
-75,
19,
15,
15,
-3,
4,
-16,
-64,
15,
13,
1,
-17,
0,
27,
18,
-13,
-66,
-39,
41,
-5,
-38,
-32,
-47,
9,
-24,
-18,
-7,
-18,
10,
28,
-7,
-49,
-40,
9,
5,
4,
-1,
-24,
-57,
17,
18,
25,
16,
52,
-7,
-32,
19,
-33,
-35,
44,
40,
39,
-37,
22,
-24,
-8,
-82,
-27,
0,
-7,
-54,
-25,
-25,
-47,
23,
-6,
23,
-7,
1,
27,
26,
-34,
-6,
-3,
-33,
-23,
-50,
38,
1,
12,
-4,
-5,
9,
-57,
74,
-26,
-57,
51,
22,
9,
-42,
25,
-9,
8,
-10,
39,
46,
14,
-34,
-30,
6,
-30,
-15,
20,
75,
12,
-12,
-72,
46,
-34,
-36,
11,
49,
37,
-3,
0,
25,
-37,
3,
-80,
-36,
30,
-31,
2,
-13,
47,
12,
-56,
-44,
-2,
29,
3,
-22,
38,
0,
49,
8,
15,
-4,
46,
28,
-19,
1,
-4,
-2,
-19,
23,
-22,
44,
-3,
-62,
-5,
29,
-53,
10,
31,
50,
55,
4,
82,
-12,
23,
-17,
30,
-3,
-16,
-3,
49,
-10,
4,
26,
-26,
61,
9,
-3,
-14,
-12,
-49,
-14,
14,
-78,
-8,
22,
25,
-30,
-15,
36,
19,
-46,
52,
8,
2,
0,
-13,
-41,
13,
13,
31,
-9,
3,
20,
12,
12,
-14,
18,
-13,
-14,
-48,
23,
1,
-19,
-31,
6,
23,
24,
-55,
13,
45,
4,
36,
-6,
49,
15,
26,
-19,
-6,
-25,
11,
-28,
23
] |
JUSTICE BAKER
delivered the Opinion of the Court.
¶1 Christopher Brunette appeals the order of the Ninth Judicial District Court, Glacier County, denying his petition for reinstatement of his driver’s license. We address Brunette’s claims on appeal under a single issue:
Whether the District Court erred in denying Brunette’s petition to reinstate his driver’s license.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 On April 11, 2015, Officer Brandon Brotnov was on patrol in Cut Bank, Montana. At 12:54 a.m., the police department dispatch received a call from an unknown officer to run a license plate check on Brunette’s vehicle, which was parked on Central Avenue. Officer Robert Snyder also was on patrol that night and told Officer Brotnov about Brunette’s vehicle.
¶4 Sometime later, Officer Brotnov observed Brunette’s vehicle parked on Central Avenue. When Officer Brotnov drove past Brunette’s parked vehicle, Brunette turned around and headed in the opposite direction. Officer Snyder and Officer Brotnov continued to patrol the area and discussed Brunette’s whereabouts; a portion of a transcript of radio communication between Officer Brotnov and Officer Snyder makes clear that the Officers discussed Brunette’s whereabouts for approximately five minutes. During this time, Officer Brotnov observed Brunette pull over and change directions twice. Officer Brotnov began to follow Brunette, observed him make a right-hand turn without using his turn signal, and initiated a traffic stop at approximately 1:40 a.m.
¶5 At the time Brunette made the turn, Officer Snyder was approaching in the oncoming lane. Officer Brotnov testified that his report indicated that after witnessing Brunette fail to use his turn signal, but prior to initiating the traffic stop, he observed Brunette almost strike a parked vehicle. At the hearing, however, Officer Brotnov testified, after viewing footage from his dash cam, that he was mistaken about Brunette almost striking the vehicle.
¶6 After stopping Brunette, and before leaving his vehicle, Officer Brotnov had dispatch begin the suggested deprivation period. Officer Brotnov approached Brunette’s vehicle and detected a slight odor of an alcoholic beverage and cigarette smoke. Officer Brotnov observed Brunette have difficulty retrieving his driver’s license and the vehicle’s registration and insurance. Brunette explained to Officer Brotnov that he was unsure of where the registration and insurance were because it was a company vehicle. Officer Brotnov observed further that Brunette’s eyes were red and watery and that his speech was slurred. Upon questioning, Brunette admitted that he had consumed alcoholic beverages that evening.
¶7 Officer Brotnov then administered standardized field sobriety tests, including a portable breath test (PBT). The PBT indicated a blood alcohol concentration of 0.143. Officer Brotnov placed Brunette under arrest for driving under the influence in violation of § 61-8-401, MCA. At the detention center, Brunette refused to submit to an Intoxilyzer breath test and his driver’s license was suspended pursuant to § 61-8-402, MCA.
¶8 On April 20, 2015, Brunette filed a petition to reinstate his driver’s license pursuant to § 61-8-403, MCA. In the petition, he argued that Officer Brotnov did not have reasonable grounds to conduct the stop. The District Court held an evidentiary hearing on May 20, 2015. During Officer Brotnov’s testimony, Brunette’s counsel questioned him about his case report and played the dash cam video and the body cam recording, but did not offer or enter any of these items into evidence.
¶9 At the hearing’s conclusion, the District Court made a number of oral findings. The court expressed “concerns about officer conduct on that night.” Those concerns included: that an officer “ran” Brunette’s license plate nearly an hour before he was pulled over; that the Officers discussed Brunette’s whereabouts and may have been “targeting this individual”; and that Officer Brunette began the suggested deprivation period before his initial contact with Brunette. The court found, however, that “clearly there was a lack of a turn signal that was a traffic stop.” The court found further that the turn signal violation, the watery eyes, and the PBT “may be sufficient” to create reasonable suspicion, “along with the other factors.” The District Court ultimately directed counsel to brief the officer conduct issues because it was unsure whether those issues “create[ ] a problem.”
¶10 Both parties submitted briefs following the evidentiary hearing addressing the issues about which the District Court expressed concerns. In his briefing, Brunette alleged for the first time that Officer Snyder failed to dim his high-beam lights as he was approaching Brunette in the oncoming lane, which Brunette claimed contributed to his failure to use his turn signal. Brunette’s brief also contained a portion of the transcript of the radio exchange between Officer Snyder and Officer Brotnov, which he obtained after the hearing. The District Court issued its order denying Brunette’s petition to reinstate his driver’s license on August 17, 2015. The court’s order focused on whether the stop was pretextual. Brunette appeals.
STANDARD OF REVIEW
¶11 We review a district court’s ruling on a petition for reinstatement of a driver’s license to determine whether the court’s findings of fact are clearly erroneous. Kummerfeldt v. State, 2015 MT 109, ¶ 8, 378 Mont. 522, 347 P.3d 1233. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. Kummerfeldt, ¶ 8. We review a district court’s conclusions of law to determine if they are correct. Kummerfeldt, ¶ 8. The suspension of a driver’s license is presumed to be correct; therefore, the petitioner bears the burden of proving that the State’s action was improper. Brown v. State, 2009 MT 64, ¶ 8, 349 Mont. 408, 203 P.3d 842.
DISCUSSION
¶12 Whether the District Court erred in denying Brunette’s petition to reinstate his driver’s license.
¶13 In a driver’s license reinstatement proceeding, a district court is limited to considering the issues set forth in § 61-8-403(4)(a), MCA. Section 61-8-403(4)(b), MCA; Kummerfeldt, ¶ 10 (citing Ditton v. DOJ Motor Vehicle Div., 2014 MT 54, ¶ 30, 374 Mont. 122, 319 P.3d 1268). Relevant here, the issues include whether:
(i) a peace officer had reasonable grounds to believe that 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 and the person was placed under arrest for violation of 61-8-401 or 61-8- 465;
(iv) the person refused to submit to one or more tests designated by the officer.
Section 61-8~403(4)(a)(i), (iv), MCA. It is undisputed that Brunette refused to submit to a breath test; therefore, the court’s focus was limited to the factors set forth in § 61-8-403(4)(a)(i), MCA.
A. The Record on Appeal
¶14 We first address the record on appeal. In his briefing to this Court, Brunette claims that the dash cam video shows that Officer Snyder had his high-beam lights on as he approached Brunette and “that Officer Brotnov clearly failed to stop at a stop sign and yield at a yield sign as he pursued Mr. Brunette.” Because the Officers broke the traffic code, Brunette claims that any evidence obtained through the Officers’ wrongdoing should be excluded. Brunette also references evidence obtained from the body cam recording. Brunette contends that the dash cam video “of the stop was viewed, discussed at length, and consistently referred to during the hearing,” and that it was “merely an oversight not to have admitted it into evidence.” Brunette argues “that the video is incorporated through reference and should be admitted.” Brunette relies extensively on a portion of the transcript of Officer Brotnov’s and Officer Snyder’s radio communications in asserting that the stop was pretextual. Brunette argues that the State failed to provide the radio transcript before the hearing. Moreover, Brunette contends that the radio transcript is part of the record because a portion of the radio transcript was included in his initial brief to the District Court.
¶15 The State counters by arguing that Brunette’s reference to and reliance on the Officers’ radio exchange transcript, the dash cam video, and the body cam recording violate the Montana Rules of Appellate Procedure because they are outside of the record on appeal. Accordingly, the State requests that this Court disregard any reference to the facts allegedly obtained from those sources.
¶16 This Court considers only the district court record, including “the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court.” M. R. App. P. 8(1). “[P]arties on appeal are bound by the record.” State v. MacKinnon, 1998 MT 78, ¶ 15, 288 Mont. 329, 957 P.2d 23 (quoting State v. Hatfield, 256 Mont. 340, 344, 846 P.2d 1025, 1028 (1993)) (internal quotation marks omitted). Although the dash cam video and the body cam recording were both played at the hearing, neither was offered or entered into evidence and they are not included in the District Court record. Accordingly, we will not consider references to this evidence on appeal. State v. J.C., 2004 MT 75, ¶ 26, 320 Mont. 411, 87 P.3d 501 (concluding that the documents the defendant “attached to his appellate brief are not part of the District Court record and will not be considered on appeal”). Brunette’s brief to the District Court in support of his driver’s license reinstatement did include a portion of the radio transcript between Officer Snyder and Officer Brotnov. That portion of the transcript is therefore part of the District Court record properly before this Court on appeal. M. R. App. P. 8(1).
B. Grounds for the Stop
¶17 Particularized suspicion for Officer Brotnov’s initial stop of Brunette’s vehicle is determined by “examining the totality of the circumstances confronting the officer at the time.” Ditton, ¶ 30. In order for an officer to have particularized suspicion, the officer must demonstrate: “(1) objective data and articulable facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to commit an offense.” Broum, ¶ 20. It is well established that “[a] statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop.” Kummerfeldt, ¶ 11 (quoting State v. Schulke, 2005 MT 77, ¶ 16, 326 Mont. 390, 109 P.3d 744) (internal quotation marks omitted).
¶18 The District Court found — and it is undisputed — that “Brunette failed to utilize his turn signal.” Such a “statutory violation alone is sufficient to establish particularized suspicion” for the initial investigative stop. Kummerfeldt, ¶ 11. Brunette contends, however, that the District Court incorrectly concluded that Officer Brotnov’s basis for the stop was legal because Officer Brotnov lacked objectivity. He claims the court erred by relying on State v. Farabee, 2000 MT 265, 302 Mont. 29, 22 P.3d 175, and asserts that this case is more analogous to State v. Lahr, 172 Mont. 32, 560 P.2d 527 (1977). He asserts that unlike in Farabee, here, Officer Brotnov observed no wrongdoing before following Brunette. Brunette contends that, similar to Lahr, “the Officers manufactured a traffic stop” because “[t]hey coordinated their movements over the radio so they could intercept Mr. Brunette.” Brunette relies on the radio transcript and the purported footage from the dash cam video to support his contentions.
¶19 Brunette’s reliance onLahr is misplaced. InLahr, a deputy sheriff in Denton, Montana, observed a package exchanged between the defendant, Lahr, and a man with previous drug related arrests. Lahr, 172 Mont. at 33, 560 P.2d at 528. After Lahr left Denton and headed toward Lewistown, Montana, the deputy radioed a second deputy in Lewistown and told him to “pick [Lahr] up ... and see what [he was] up to.” Lahr, 172 Mont. at 33, 560 P.2d at 528. The deputy in Lewistown waited for Lahr’s vehicle and followed him in an unmarked police car “for approximately three miles at a distance of one to four car lengths.” Lahr, 172 Mont. at 33, 560 P.2d at 528. The deputy testified that he observed Lahr swerve over the centerline of the highway and go onto the shoulder. Lahr, 172 Mont. at 34, 560 P.2d at 528. Lahr testified that he thought the vehicle was following him too closely and that he was attempting to have the vehicle pass him. Lahr, 172 Mont. at 34, 560 P.2d at 528. The deputy pulled Lahr over for reckless driving, observed what he believed to be marijuana in the car, and arrested Lahr. Lahr, 172 Mont. at 34, 560 P.2d at 528-29.
¶20 On appeal, Lahr contended that the arrest was invalid because the deputies lacked probable cause. We concluded that it was “clear that neither [deputy] had probable cause to arrest Lahr” because they had nothing more than a suspicion that an illegal transaction had taken place. Lahr, 172 Mont. at 35, 560 P.2d at 529. We reiterated that “good faith or mere suspicion on the part of arresting officers is not enough” for probable cause. Lahr, 172 Mont. at 35, 560 P.2d at 529. Accordingly, we concluded, “Clearly, the traffic stop was merely a pretext used by [the arresting deputy] to follow up on the call received from [the other deputy]. Hence, [the arresting deputy] was also acting on a mere suspicion.” Lahr, 172 Mont. at 35, 560 P.2d at 529.
¶21 In Farabee, the defendant relied onLahr to argue that the officers used a statutory violation “as a pretext to stop him and investigate their hunch” that he was involved in narcotics activity. Farabee, ¶ 22. We analyzed Lahr and concluded that the basis of our holding there was not that the deputy “used an otherwise justifiable traffic stop as an unlawful means to investigate a mere suspicion. Rather, we held that the traffic stop was not justified because either [the deputy] did not actually witness Lahr driving recklessly, or [the deputy] caused Lahr’s erratic driving by following too closely.” Farabee, ¶ 28. Accordingly, we noted, “Lahr does not stand for the proposition that a traffic stop supported by probable cause or reasonable suspicion is nonetheless unlawful because it was used as a ‘pretext’ to investigate other criminal activity for which the officer did not have a reasonable suspicion.” Farabee, ¶ 26.
¶22 In fact, in Farabee we noted approvingly that the “United States Supreme Court has stated that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the subjective motivations of the individual officers involved.” Farabee, ¶ 23 (citing Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996)). We declined to conclude that the right to privacy under Article II, Section 10, of the Montana Constitution affords citizens greater protection than that provided by the Fourth Amendment when judging the lawfulness of a traffic stop; we reasoned that “the lawfulness of a traffic stop under the Montana Constitution depends on whether the officer had a particularized suspicion that an occupant of the vehicle has committed or is committing an offense.” Farabee, ¶ 30 (citations omitted). Accord State v. Crawford, 2016 MT 96, ¶ 21, 383 Mont. 229, 371 P.3d 381 (and concluding that “our precedent has long established that inquiry into the subjective motivations of law enforcement... is inappropriate in assessing the validity of an arrest”).
¶23 The instant case is distinguishable from Lahr. “Lahr might be applicable if [Brunette] could prove that the officers involved in his stop never actually had a reasonable suspicion that [there was a statutory violation].” Farabee, ¶ 29. It is undisputed, however, that Brunette failed to use his turn signal in violation of § 61-8-336, MCA. Brunette has failed to show that Officer Brotnov did not have reasonable suspicion for the investigatory stop.
¶24 “Lahr might also be applicable if [Brunette] could prove that the [officers] somehow manufactured reasonable suspicion ... in order to create a justifiable traffic stop and investigate their hunch.” Farabee, ¶ 29. Although the District Court found that Officer Snyder’s high-beam lights were on as he was approaching Brunette in the oncoming lane, the court ultimately concluded that “it appears that the arresting officers did not contribute to or cause Brunette’s signaling violation.” Unlike in Lahr, Brunette did not testify that the Officers’ actions contributed to his failure to use his turn signal. In fact, he testified that he “remember[ed] seeing a car coming towards” him and, when he was asked why he didn’t use his turn signal, he responded, “I just guess I forgot.”
¶25 This case is further distinguishable from Lahr because in that case the arresting deputy was instructed to pick Lahr up based on a mere suspicion, proceeded to wait for Lahr while he traveled from Denton to Lewistown, and then followed him closely for three miles before observing the erratic driving. Here, the portion of the radio transcript between Officer Snyder and Officer Brotnov demonstrates that the Officers communicated about Brunette’s whereabouts for approximately five minutes prior to the traffic stop and that Officer Brotnov was not following him for more than a few blocks. While the evidence reveals that Officer Snyder told Officer Brotnov about Brunette’s vehicle, it does not demonstrate that Officer Snyder instructed Officer Brotnov to pick up Brunette. Moreover, after Officer Snyder told Officer Brotnov about Brunette’s vehicle, Officer Brotnov witnessed Brunette pull over and change directions twice prior to observing the turn signal violation. Contrary to Brunette’s assertions, the transcript does not demonstrate that “the Officers decided to pick up Mr. Brunette long before they witnessed a traffic violation.” The transcript demonstrates only that the Officers were aware of Brunette’s vehicle and that they discussed Brunette’s whereabouts.
¶26 Brunette claims that pretext is apparent from Officer Brotnov’s beginning the suggested deprivation period prior to his initial contact with Brunette. While previous versions of the Administrative Rules of Montana required an officer to comply with a checklist that included observing a deprivation period before administering a breath test, State v. McGowan, 2006 MT 163, ¶ 16, 322 Mont. 490, 139 P.3d 841, the current version of the rules has no such requirement, Admin. R. M. 23.4.212 (2012);Levanger, ¶ 12. Whatever Officer Brotnov’s intentions may have been for starting the deprivation period when he did, they have no bearing on the analysis in this case because the reasonableness of a traffic stop “does not depend on the subjective motivations of the individual officers involved.” Farabee, ¶ 23 (citing Whren, 517 U.S. at 813, 116 S. Ct. at 1774).
¶27 Brunette also contends that the evidence demonstrates that there were several inconsistencies with Officer Brotnov’s testimony. He therefore asserts that the District Court erred by finding that the traffic stop was objectively reasonable.
¶28 We are unpersuaded by Brunette’s contention. The record demonstrates that Brunette questioned Officer Brotnov about the alleged inconsistencies during the hearing. Moreover, Brunette included a portion of the radio transcript — which he claims demonstrates further the inconsistencies in Officer Brotnov’s testimony — in his briefing to the District Court. The District Court therefore had the opportunity to consider this evidence. It is well-established that “because an assessment of testimony is best made upon observation of the witness’s demeanor and consideration of other intangibles that are only evident during live testimony, the fact-finder is uniquely in the best position to judge the credibility of witnesses.” Ditton, ¶ 33 (citations omitted). As such, we “defer to the trial court regarding the credibility of [Officer Brotnov] and the weight to be accorded [his] testimony.” Ditton, ¶ 33.
¶29 After reviewing the available record on appeal, we conclude that Brunette has not met his “burden of proving that the State’s action was improper.” Brown, ¶ 8. Accordingly, we conclude that the District Court correctly relied on Farabee in determining that the stop was “objectively reasonable” and that there was “no evidence that this failure [to use a turn signal] was caused by law enforcement.” The District Court correctly concluded that “the necessary particularized suspicion existed” for the initial stop.
C. The Statutory Factors
¶30 Brunette next claims that the District Court failed to consider adequately the necessary issues in a driver’s license reinstatement proceeding. Brunette does not dispute that he refused to submit to a breath test. He contends, however, that the District Court erred by failing to make the other findings necessary under § 61-8-403(4)(a), MCA, to support its order — whether Officer Brotnov had reasonable grounds to believe Brunette was under the influence of alcohol and whether Brunette was lawfully placed under arrest. Although Brunette concedes that he failed to use his turn signal, he nevertheless asserts that Officer Brotnov failed to establish objective data from which he could infer that Brunette was under the influence of alcohol both prior to and during the investigative stop. Brunette accordingly asserts that Officer Brotnov lacked the necessary particularized suspicion to administer the field sobriety tests. Brunette asserts further that because Officer Brotnov lacked particularized suspicion, Officer Brotnov likewise lacked probable cause to arrest him.
¶31 The State asserts that although the court’s written findings do not explicitly discuss the issues relevant to a driver’s license reinstatement proceeding, the court’s order was supported by the evidence at the hearing, by its oral findings at the hearing’s conclusion, and by the doctrine of implied findings. The State contends that Officer Brotnov had particularized suspicion to support the investigative stop because Brunette failed to use his turn signal. Furthermore, the State asserts, Officer Brotnov’s observations after the stop “established sufficient grounds to form a reasonable belief that Brunette was driving under the influence.” Finally, the State contends that Officer Brotnov’s particularized suspicion ripened into probable cause to arrest Brunette because Officer Brotnov observed indicators of impairment and, based on those indicators, administered field sobriety tests, which established probable cause for arrest.
1. Reasonable Grounds
¶32 The “reasonable grounds” requirement in § 61~8-403(4)(a)(i), MCA, “is the equivalent of the ‘particularized suspicion’ standard necessary to make an investigative stop." Kummerfeldt, ¶ 11 (citing Ditton, ¶ 30). We are unpersuaded by Brunette’s contention that Officer Brotnov lacked particularized suspicion to conduct the field sobriety tests. Officer Brotnov testified that, once he approached Brunette, he made the following observations: he smelled the odor of an alcoholic beverage; Brunette had red, watery eyes; Brunette’s speech was slurred; Brunette had difficulty getting his license out of his wallet; and Brunette admitted to consuming alcohol. Such objective data and articulable facts are sufficient for particularized suspicion that a person is under the influence of alcohol. E.g., Brown, ¶ 23 (concluding that an officer had particularized suspicion that a driver was under the influence of alcohol based, in part, on the officer’s observations of an odor of alcohol, slurred and slow speech, and slow, staggered movements); Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 42, 289 Mont. 1, 961 P.2d 75 (concluding that an officer’s observations of an odor of alcohol, bloodshot eyes, and the driver’s difficulty producing her driver’s license constituted “objective data [that] further established that [the officer] had a separate particularized suspicion that [the driver] was driving while under the influence of alcohol, and, therefore, [the officer’s] administration of field sobriety tests was a constitutionally permissible search”).
¶33 We similarly are unpersuaded that the District Court made inadequate findings regarding whether Officer Brotnov had reasonable grounds to believe that Brunette was driving under the influence of alcohol. We will not overturn a district court’s decision if its findings of fact and conclusions of law “are sufficiently comprehensive and pertinent to the issues to provide a basis for decision and are supported by evidence.” State v. Whiteman, 2005 MT 15, ¶ 12, 325 Mont. 358, 106 P.3d 543. The District Court made the following relevant oral findings at the evidentiary hearing’s conclusion:
I think we got [sic] a failure to use a turn signal, that’s considered, and I think we got [sic] watery eyes and we have a P.B.T.
[B]ut clearly the stop was made, there was no blinker used. And if — if that’s enough to create reasonable suspicion along with the other factors, it may be sufficient.
Such oral findings are appropriate for consideration under our precedent. See State v. Flemings, 2008 MT 229, 344 Mont. 360, 188 P.3d 1020 (affirming a district court’s determination that an officer had particularized suspicion after analyzing the court’s oral findings of fact and conclusions of law); State v. Todd, 2005 MT 108, 327 Mont. 65, 111 P.3d 677 (affirming a district court’s determination that an officer had particularized suspicion after analyzing the court’s oral findings of fact and conclusions of law). Furthermore, the District Court expressly found in its written order that “the stop was objectively reasonable and the necessary particularized suspicion existed.” We conclude that the District Court’s oral and written findings are supported by the evidence and are “sufficiently comprehensive and pertinent to the issues to provide a basis for decision,” Whiteman, ¶ 12, regarding whether Officer Brotnov “had reasonable grounds to believe that [Brunette] had been driving ... while under the influence of alcohol,” Section 61-8-403(4)(a)(i), MCA.
2. The Arrest
¶34 Section 61-8-403(4)(a)(i), MCA, requires a court to examine and consider also whether “the person was placed under arrest for violation of 61-8-401.” In determining whether a person was placed under arrest under § 61-8-403(4)(a)(i), MCA, a court “must consider whether an officer had the right to make the arrest.” Hulse, ¶ 13. “An officer has the right to make an arrest if the arrest is supported by probable cause.” Hulse, ¶ 13. Probable cause “exists when the facts and circumstances within the arresting officer’s personal knowledge are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.” Hulse, ¶ 13.
¶35 Here, in addition to Officer Brotnov’s observations regarding the smell of alcohol, red and watery eyes, slurred speech, difficulty retrieving driver’s license, and admission of alcohol consumption, Officer Brotnov administered field sobriety tests, including a PBT. The PBT indicated that Brunette’s blood alcohol concentration was 0.143, well in excess of the legal limit. These facts and circumstances are sufficient for probable cause to believe that Brunette was driving under the influence. Brunette therefore was validly arrested. Brown, ¶ 23 (concluding that the officer’s objective observations — e.g., an odor of alcohol, slurred and slow speech, and slow, staggered movements — allowed the officer’s “particularized suspicion to escalate into probable cause for a DUI arrest”); Hulse, ¶ 73 (concluding that even without the evidence of one of the field sobriety test results, “sufficient evidence remains to support a finding that [the officer] had probable cause to arrest [the defendant] for driving under the influence, and, therefore, that [the defendant’s] arrest was valid” based in part on the officer’s observations of the other field sobriety tests, an odor of alcohol, bloodshot eyes, and the driver’s difficulty producing her driver’s license).
¶36 Brunette correctly points out that the District Court’s order does not address whether Officer Brotnov had probable cause to arrest him for driving under the influence. We have, however, long adhered “to the doctrine of implied findings[,] which states that where a court’s findings are general in terms, any findings not specifically made, but necessary to the judgment, are deemed to have been implied, if supported by the evidence.” Interstate Brands Corp. v. Cannon, 218 Mont. 380, 384, 708 P.2d 573, 576 (1985). Under this doctrine, “we may consult hearing transcripts in addition to the written findings.” In re S.M., 2014 MT 309, ¶ 28, 377 Mont. 133, 339 P.3d 23.
¶37 As stated above, a district court is limited to considering certain issues in a driver’s license reinstatement proceeding — one of which is whether “the person was placed under arrest.” Section 61-8-403(4)(a)(i), MCA. That consideration requires a court to determine “whether an officer had the right to make the arrest,” which necessarily requires a conclusion that the officer had probable cause. Hulse, ¶ 13. Here, the District Court found generally that “Brunette was ultimately arrested and charged with driving while under the influence of alcohol.” The court found specifically that “the stop was objectively reasonable,” and orally found that there were indicators of intoxication — the watery eyes and the PBT that, “along with the other factors ... may be sufficient” to uphold the suspension. The court’s general and specific findings necessarily include implied findings sufficient to conclude that Officer Brotnov had probable cause to arrest Brunette. As demonstrated above, the evidence supports such a determination. Accordingly, we conclude that the District Court’s failure to specifically address whether Officer Brotnov had probable cause to place Brunette under arrest does not constitute reversible error.
CONCLUSION
¶38 The District Court’s order denying Brunette’s motion to reinstate his driver’s license is affirmed.
CHIEF JUSTICE McGRATH, JUSTICES SHEA, COTTER and RICE concur.
The “deprivation period,” formerly contained in the Administrative Rules of Montana, required an officer to observe the person for fifteen minutes before administering a breath test. State v. Flaherty, 2005 MT 122, ¶ 9, 327 Mont. 168, 112 P.3d 1033, superseded by rule as stated in State v. Levanger, 2015 MT 83, ¶¶ 9-14, 378 Mont. 397, 344 P.3d 984.
Brunette has included a more complete transcript of the Officers’ radio communications in an appendix to his briefing on appeal. Because parties “may not add additional matters in briefs or appendices,” however, we will not consider the complete transcript on appeal. MacKinnon, ¶ 15 (quoting Hatfield, 256 Mont. at 344, 846 P.2d at 1028) (internal quotation marks omitted).
|
[
40,
-14,
-45,
43,
15,
-56,
-18,
-28,
-15,
66,
10,
-27,
41,
-40,
41,
-33,
20,
20,
-14,
-37,
-2,
-49,
38,
-42,
-33,
-28,
-25,
2,
-53,
16,
42,
-43,
15,
-53,
70,
45,
-3,
24,
31,
76,
36,
-16,
-29,
-45,
-31,
0,
-39,
-1,
-62,
-17,
7,
21,
-52,
20,
26,
69,
-15,
0,
3,
-10,
-53,
10,
1,
-18,
5,
3,
18,
51,
-47,
-28,
-59,
-34,
-44,
4,
-1,
5,
-38,
-3,
-7,
24,
-24,
50,
-39,
-30,
86,
-34,
17,
-16,
-14,
-27,
26,
-18,
0,
-23,
-8,
0,
31,
-72,
5,
-33,
-19,
36,
8,
30,
-46,
60,
-35,
24,
1,
-38,
-14,
72,
71,
-31,
54,
49,
20,
0,
85,
23,
11,
-26,
38,
-10,
-27,
-65,
19,
42,
-53,
-28,
3,
13,
59,
-14,
-45,
-9,
-31,
-6,
-9,
45,
-48,
21,
3,
33,
40,
-37,
51,
38,
9,
26,
26,
20,
-19,
-35,
-86,
-36,
70,
-29,
17,
-26,
15,
-8,
7,
12,
46,
62,
4,
-6,
-5,
25,
70,
21,
32,
4,
42,
-25,
-32,
-5,
-33,
-28,
7,
29,
21,
-33,
-32,
-64,
41,
6,
-5,
-9,
-69,
-38,
18,
16,
55,
-11,
18,
0,
21,
-76,
8,
60,
39,
-19,
-40,
-11,
51,
24,
39,
12,
-10,
-22,
2,
-30,
16,
9,
22,
-12,
65,
-19,
64,
-44,
-4,
-70,
-15,
-1,
-58,
38,
5,
7,
9,
-2,
-13,
44,
-39,
-19,
35,
-43,
-10,
4,
32,
-28,
-14,
-16,
23,
44,
-50,
-24,
-39,
-17,
36,
-37,
-4,
-60,
-60,
-36,
86,
-54,
62,
22,
47,
14,
60,
-6,
14,
4,
6,
47,
18,
-10,
-41,
0,
-20,
-75,
-59,
-2,
25,
-16,
-1,
58,
9,
17,
-3,
16,
-5,
-1,
24,
44,
51,
10,
-8,
-73,
-48,
37,
-23,
1,
4,
-34,
-83,
17,
52,
3,
-18,
55,
-27,
-62,
34,
-5,
8,
74,
16,
-13,
-8,
28,
67,
-19,
1,
-23,
24,
-14,
-6,
10,
-31,
-70,
-32,
23,
-45,
34,
-30,
-67,
-27,
3,
-36,
49,
32,
-18,
-9,
43,
61,
52,
-35,
-18,
-14,
4,
53,
46,
23,
56,
0,
-34,
12,
-11,
44,
-39,
-40,
30,
-34,
-46,
-11,
-58,
39,
-11,
-14,
-6,
-24,
12,
7,
7,
-83,
28,
-22,
-63,
-18,
-42,
61,
-19,
8,
-26,
-4,
5,
20,
-40,
-48,
-67,
-12,
-13,
-14,
-60,
-35,
-45,
45,
12,
-53,
19,
-30,
18,
37,
20,
14,
9,
27,
41,
43,
-28,
-41,
-20,
24,
47,
-16,
-34,
-32,
-21,
-21,
50,
44,
40,
-43,
-10,
-69,
-32,
-15,
-3,
-13,
-45,
30,
58,
-56,
44,
0,
47,
25,
-8,
31,
7,
-29,
-31,
-1,
-50,
25,
-13,
-30,
-11,
8,
18,
-22,
-14,
-2,
11,
-12,
27,
-3,
6,
82,
-6,
-26,
75,
36,
49,
-43,
1,
-10,
-19,
-29,
11,
-5,
-35,
-4,
20,
-13,
-14,
11,
37,
-58,
13,
-8,
7,
-48,
-3,
-25,
15,
-29,
-43,
0,
-16,
-13,
-33,
5,
35,
25,
50,
22,
45,
-30,
-15,
-15,
-21,
0,
6,
8,
-62,
0,
-9,
-72,
72,
23,
-39,
26,
19,
19,
-20,
-20,
38,
-16,
-46,
-55,
-22,
-34,
-9,
45,
-2,
-3,
40,
29,
-19,
-22,
-22,
-49,
-35,
-27,
-3,
8,
-39,
45,
-50,
56,
8,
54,
15,
14,
28,
44,
10,
-37,
-20,
-53,
7,
11,
36,
19,
-9,
22,
25,
27,
0,
-7,
-48,
-17,
-23,
-12,
-20,
-1,
-4,
-29,
72,
38,
22,
-26,
22,
54,
-23,
-16,
3,
-35,
23,
8,
29,
8,
-41,
-12,
0,
48,
9,
-12,
4,
-16,
50,
18,
-46,
55,
-52,
-28,
11,
4,
28,
10,
51,
-24,
-17,
-68,
-4,
55,
70,
-8,
27,
55,
-58,
49,
4,
-3,
-9,
0,
23,
-13,
63,
-8,
-16,
-16,
-15,
41,
-70,
-7,
27,
-3,
34,
-75,
8,
-38,
46,
15,
-18,
-39,
-9,
-38,
-19,
6,
-24,
0,
1,
-67,
1,
54,
23,
19,
-9,
15,
5,
53,
25,
-40,
-28,
-19,
45,
26,
-3,
13,
20,
-64,
-9,
-15,
25,
-12,
-28,
-59,
-33,
-32,
-40,
-57,
-35,
7,
63,
1,
-21,
28,
0,
-13,
-2,
35,
29,
-65,
12,
11,
-75,
-2,
-27,
17,
10,
-37,
0,
75,
3,
-15,
22,
22,
23,
-14,
17,
-20,
-53,
-16,
-10,
-11,
13,
-66,
-34,
-72,
-24,
-8,
-22,
-6,
35,
19,
29,
-8,
11,
2,
-25,
-14,
9,
16,
30,
-65,
-22,
-13,
-6,
31,
-30,
-62,
-47,
21,
19,
33,
47,
37,
-19,
-36,
-23,
16,
13,
20,
-22,
-62,
31,
73,
23,
10,
-43,
16,
-24,
-26,
-5,
1,
5,
-20,
11,
-29,
48,
63,
17,
-77,
-6,
71,
2,
38,
0,
-33,
7,
9,
-7,
33,
-7,
-48,
-75,
7,
-29,
-70,
8,
8,
23,
30,
-22,
7,
37,
-41,
-13,
-16,
39,
-36,
38,
-12,
30,
1,
7,
-4,
-31,
-20,
0,
16,
-50,
46,
13,
-7,
-7,
5,
-6,
34,
51,
33,
57,
33,
-15,
20,
31,
8,
28,
38,
-38,
10,
21,
33,
-57,
34,
-8,
11,
-5,
38,
-31,
49,
-11,
-12,
24,
-6,
25,
41,
-46,
-53,
2,
20,
-22,
-5,
26,
0,
47,
-16,
39,
14,
20,
63,
0,
42,
25,
-49,
38,
-37,
24,
-12,
27,
-39,
41,
-17,
30,
5,
-11,
18,
-17,
7,
-21,
69,
0,
-48,
29,
17,
21,
66,
63,
37,
38,
49,
11,
-32,
-44,
18,
-3,
51,
-20,
34,
-7,
-26,
4,
-3,
-59,
-29,
15,
-1,
-27,
-66,
10,
-42,
38,
10,
-23,
5,
5,
-30,
0,
12,
-4,
5,
63,
-6,
25,
2,
-9,
-13,
-40,
0,
-30,
-12,
-21,
87,
-16,
6,
58,
13,
48,
-52,
10,
-65,
-50,
-14,
64,
-21,
36,
0,
7,
-6,
18,
33,
15,
-55,
-30,
-19,
-22,
-49,
5,
18,
40,
-30,
-29,
-70,
18,
29,
10,
-19,
11,
13,
-9,
-60,
-15,
-2,
17,
-54,
24,
18,
-14,
-19,
35,
36,
-32,
8,
70,
-34,
10,
18,
41,
16,
26,
-30,
-7,
11,
27,
-76,
8,
20,
4,
-5,
-9,
-14,
-36,
-34,
25,
-43,
1,
-52,
13,
28,
0,
-15,
-5,
10,
-34,
-8,
51,
3,
29,
15,
3,
20,
-34,
13,
47,
55,
25,
-27,
-32,
-1,
-16,
53,
13,
17,
-9,
-85,
40,
42,
6
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Mark Ibsen, Inc., doing business as Urgent Care Plus (hereinafter Ibsen), owned and operated the Urgent Care Plus medical clinic in Helena, Montana. The clinic employed numerous employees and was a small business member of the Montana Chamber of Commerce. Ibsen purchased health insurance coverage for its employees from Blue Cross and Blue Shield of Montana (BCBSMT) through the Chamber of Commerce’s program known as “Chamber Choices.” In July 2013, Health Care Service Corporation (Health Care) acquired BCBSMT’s existing health insurance business and BCBSMT changed its name to Caring for Montanans, Inc. (Caring). In April 2014, Ibsen filed a complaint and class action against Caring and Health Care alleging that they had violated the Unfair Trade Practices Act (UTPA or the Act) by charging Ibsen and other similarly situated employers, excessive premiums and using the excess collections to pay kickbacks to the Chamber of Commerce. Following removal to federal court and a remand back to the First Judicial District Court, Helena, Montana, in March 2015, the District Court granted Health Care’s motion to dismiss and Caring’s motion for summary judgment. The court determined that the UTPA did not provide private litigants such as Ibsen with a private right of action to seek enforcement of the Act. Ibsen appeals. We affirm.
ISSUE
¶2 The issue on appeal is whether Ibsen may maintain a private right of action for violation of §§ 33-18-208 and -212, MCA, of the UTPA, or, in the alternative, whether Ibsen’s claims can be sustained as common law claims.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 For several years and until December 2015, Ibsen owned and operated the Urgent Care Plus Clinic in Helena, Montana. Ibsen became a small business member of the Montana Chamber of Commerce and during 2011, 2012, and 2013, it elected to provide health insurance coverage for its employees through a Chamber program known as “Chamber Choices.” It chose BCBSMT, a “Chamber Choice” vendor, as its provider and paid monthly premiums to BCBSMT.
¶4 In accordance with applicable oversight statutes, the Montana Department of Insurance (MDOI) conducted a Market Conduct Examination of BCBSMT in which it reviewed the insurer’s business practices between July 1, 2006, and December 31, 2010. In February 2014, the Montana State Auditor issued an Order fining BCBSMT $250,000 for numerous discrepancies, including improper medical premium billing in violation of Unfair Trade Practices §§ 33-18-208 and -212, MCA. Caring did not challenge or appeal the fine and paid it within the required 30-day payment period.
¶5 In April 2014, Ibsen filed a “Complaint Putative Class Action” against Caring and Health Care. An amended complaint was filed shortly thereafter. Ibsen alleged that from 2007 through 2012, BCBSMT violated § 33-18-212, MCA, by improperly charging consumers padded premiums that included undisclosed amounts exceeding the medical premium. It claimed that BCBSMT used the overcharges to provide kickbacks to the Chamber of Commerce, the organization that marketed BCBSMT’s insurance plan to its members. It further argued that these kickbacks were given to ensure that BCBSMT remained as a “Chamber Choice" provider and thus were in violation of § 33-18-208, MCA.
¶6 In addition to asserting class allegations, the amended complaint set forth the following four counts:
Count I - Breach of Fiduciary Duty:
Ibsen claimed that Caring and Health Care owed it and the putative class fiduciary duties under the UTPA that it breached by “collecting excessive and/or improper medical premiums and by paying rebates in violation of the Montana Insurance Code [MIC].” Ibsen asserted that it and the class were injured by these breaches and were entitled to appropriate relief.
Count II - Unfair/Deceptive Trade Practices/Violation of Insurance Billing Statutes:
Ibsen maintained that BCBSMT violated §§ 33-18-208 and -212, MCA, by charging and collecting improper and excessive medical premiums from it and the class and by paying kickbacks. It claimed that BCBSMT’s conduct was an unfair and/or deceptive trade practice under Title 33. Ibsen sought appropriate relief, treble damages, and reasonable attorney’s fees.
Count III - Breach of Contract:
Ibsen alleged that it and the class entered into written insurance contracts with BCBSMT and that these contracts “impliedly” contained all sections of the Montana Insurance Code, including §§ 33-18-208 and -212, MCA. Ibsen asserted that under the contracts, BCBSMT “implied and covenanted that it would act in good faith and follow the law and the contracts with respect to its billing practices.”
Count IV - Unjust Enrichment:
Lastly, Ibsen declared that BCBSMT’s collection of premiums and fees beyond those authorized by applicable law and the payment of rebates to secure business for itself were violations of the MIC and constituted unjust enrichment. It requested that BCBSMT be disgorged of all excessive premiums collected and that those funds be returned to the class members.
¶7 Caring promptly filed a Notice of Removal from the First Judicial District Court to the United States District Court for Montana. Caring asserted that Ibsen’s claim fell within the scope of § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) and consequently should be decided in federal court. Ibsen countered with a motion to remand to District Court arguing that its complaint raised state law claims similar to those adjudicated in the federal decision, Fossen v. Blue Cross & Blue Shield of Mont., 660 F.3d 1102 (9th Cir. 2011), in which the court held that almost-identical state claims were not completely preempted by federal law. Without legal analysis or ruling on other pending motions, in June 2014, the federal court granted Ibsen’s motion and remanded the case to the District Court.
¶8 In rendering its March 2015 ruling on the motions to dismiss and for summary judgment, the District Court held that the legislature did not provide private citizens with the right to bring a cause of action to enforce §§ 33-18-208 and -212, MCA. The court noted that § 33-18-242, MCA, offers the sole statutory exception to the Commissioner’s exclusive authority to enforce the UTPA by allowing “insureds” to assert claims involving “claims handling or settlement practices.” The District Court reasoned that because Ibsen was not an insured nor was it asserting a cause of action based upon claims handling or settlement practices, § 33-18-242, MCA, has no application.
¶9 Ibsen asserted that three of its four claims were common law claims rather than statutory claims brought under the UTPA. The District Court disagreed. The court pointed out that “Count II clearly alleges a statutory violation and purports to allow [Ibsen] to enforce the two provisions of the insurance code ([S]ections -208 and -212).” It therefore held that “Count II ... is strictly and explicitly a statutory claim [and] is not allowed to be brought by private claimants.” The District Court also invoked Ibsen’s assertions in the federal court proceeding that its “several causes of action” were “all based on violations of the two insurance code sections.” Consequently, the District Court held that each remaining count set forth in the Complaint was not a common law claim. Citing § 33-1-311(1), MCA, the “General powers and duties” section of the MIC, the court found that the clear intent of the legislature is that the insurance code is to be enforced by the insurance commissioner and not private litigants, with exceptions not applicable to this case.
¶10 Ibsen filed a timely appeal. The Montana Commissioner of Insurance (Commissioner) and the Montana Trial Lawyers Association (MTLA) have filed amicus briefs in support of Ibsen.
STANDARD OF REVIEW
¶11 We review a district court’s summary judgment ruling de novo, applying the same rule, M. R. Civ. P. 56(c)(3), that a district court does when ruling on summary judgment. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3); Victory Ins. Co. v. Mont. State Fund, 2015 MT 82, ¶ 10, 378 Mont. 388, 344 P.3d 977 (internal citations omitted).
¶12 We review a district court’s ruling on a motion to dismiss under the standards set forth in M. R. Civ. P. 12(b)(6). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. A district court’s determination that a complaint has failed to state a claim for which relief can be granted is a conclusion of law which we review for correctness. Victory Ins. Co, ¶ 11.
DISCUSSION
¶13 May Ibsen maintain a private right of action for violation of§§ 33-18-208 and -212, MCA, of the UTPA, or, in the alternative, can Ibsen’s claims be sustained as common law claims?
¶14 We fir st set forth the statutory provisions we reference throughout this Opinion.
¶15 Section 33-1-311(1), MCA, provides:
The commissioner shall enforce the applicable provisions of the laws of this state and shall execute the duties imposed on the commissioner by the laws of this state.
¶16 Section 33-18-201, MCA (Section 201), provides in relevant part:
A person may not, with such frequency as to indicate a general business practice, do any of the following:
(1) misrepresent pertinent facts or insurance policy provisions relating to coverages at issue;
(4) refuse to pay claims without conducting a reasonable investigation based upon all available information;
(5) fail to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;
(6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear;
(9) attempt to settle claims on the basis of an application that was altered without notice to or knowledge or consent of the insured;
(13) fail to promptly settle claims, if liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage ....
¶17 Section 33-18-208, MCA (Section 208), provides:
Except as otherwise expressly provided by law, no person shall knowingly:
(2) pay or allow or give or offer to pay, allow, or give, directly or indirectly, as inducement to such insurance or annuity any rebate of premiums payable on the contract or any special favor or advantage in the dividends or other benefits thereon or any paid employment or contract for services of any kind or any valuable consideration or inducement whatever not specified in the contract;
(3) directly or indirectly give or sell or purchase or offer or agree to give, sell, purchase, or allow as inducement to such insurance or annuity or in connection therewith and whether or not to be specified in the policy or contract, any agreement of any form or nature promising returns and profits or any stocks, bonds, or other securities or interest present or contingent therein or as measured thereby of any insurance company or other corporation, association, or partnership or any dividends or profits accrued or to accrue thereon....
¶18 Section 33-18-212, MCA (Section 212), provides:
(2) A person may not willfully collect as a premium or charge for insurance any sum in excess of or less than the premium or charge applicable to the insurance and, as specified in the policy, in accordance with the applicable classifications and rates filed with or approved by the commissioner ....
¶19 Section 33-18-242, MCA (Section 242), provides:
(1) An insured or a third-party claimant has an independent cause of action against an insurer for actual damages caused by the insurer’s violation of subsection (1), (4), (5), (6), (9), or (13) of 33-18-201.
(3) An insured who has suffered damages as a result of the handling of an insurance claim may bring an action against the insurer for breach of the insurance contract, for fraud, or pursuant to this section, but not under any other theory or cause of action. An insured may not bring an action for bad faith in connection with the handling of an insurance claim.
¶20 Ibsen maintains it has the right to bring both common law and statutory claims against Caring and Health Care for violation of specific provisions of the UTPA. The defendants counter that the UTPA precludes private rights of action for claims arising from the UTPA provisions relied upon by Ibsen.
¶21 We deem it appropriate to briefly review the history of the UTPA. In 1959, the Montana legislature enacted the Montana Insurance Code (MIC), codified at Title 40, R.C.M.1947. The legislation was derived from the Model Act drafted by the National Association of Insurance Commissioners (NAIC). The MIC, subsequently renumbered, spans forty chapters in Title 33 of the MCA, and governs numerous facets of the relationship between and among insurers, insurance companies, insurance consumers, and others. The UTPA constitutes one chapter of the MIC and is codified at Chapter 18 of Title 33, §§ 33-18-101 through 33-18-1006, MCA. Its purpose is to regulate trade practices in the business of insurance by defining and prohibiting practices constituting unfair acts or methods of competition. Section 33-18-101, MCA. While the UTPA regulates the relationship among an insured, a claimant, and an insurer, it also provides broader governance by, among other things: (1) restricting the relationship between insurers and mortuaries, §33-18-301, MCA; (2) penalizing insurer political contributions, § 33-18-305, MCA; (3) regulating how credit information for personal insurance may be used, § 33-18-605, MCA; and (4) prohibiting insurer discrimination on the basis of genetic traits, § 33-18-903, MCA. Notably, under the original UTPA, the Commissioner was solely responsible for enforcement of the entire UTPA and no express private right of action was codified in the Act.
¶22 In 1977, the legislature adopted amendments to the law that provided the Commissioner with greater regulatory authority. In 1980, NAIC issued a report in which it expressly stated, “the intent of the NAIC, as evidenced by the language of the [Act] and the NAIC Proceedings, and supplemented by this Report, was clearly not to create a new private right of action for trade practices which are prohibited by the Model Act.” 2 NAIC Proc. 344, 350 (1980). At that time, the Montana legislature did not incorporate into Montana’s UTPA any provision precluding private rights of action or referencing the NAIC’s 1980 report.
¶23 The first Montana case to reference the “Unfair Trade Practices Section of the Montana Insurance Code” was Klaudt v. Flink, 202 Mont. 247, 658 P.2d 1065 (1983) (overruled in part on other grounds and superseded in part by § 33-18-242, MCA). Klaudt presented a case of first impression to this Court: Does the Unfair Trade Practices Section of the MIC, specifically § 33-18-201(6), MCA, confer a private right of action against an insurer by a third-party claimant? In Klaudt, 18-year-old Klaudt died of injuries sustained in a high-speed automobile accident. Klaudt was a passenger in a vehicle driven by Calvin Flink, who was intoxicated at the time. Flink admitted fault for the accident and pleaded guilty to reckless driving. Flink’s insurer, State Farm, refused to negotiate with the Klaudts and denied liability. Klaudt’s parents sued Flink and State Farm alleging that State Farm breached its duty under the UTPA to fairly negotiate and settle claims. The district court granted State Farm’s motion to dismiss on the grounds that the Klaudts did not have standing. Klaudts appealed. Klaudt, 202 Mont. at 249, 658 P.2d at 1066.
¶24 To determine whether the insurer’s duty to settle claims under § 33-18-201(6), MCA, ran to a third-party in addition to the insured, we reviewed cases from other jurisdictions with similar statutes and discovered a split of authority on the issue. We then set forth the four-prong test we subsequently applied in Wombold v. Assocs. Fin. Servs. Co. of Mont., Inc., 2004 MT 397, 325 Mont 290, 104 P.3d 1080. Klaudt, 202 Mont. at 250-51, 658 P.2d at 1066-67. After applying the test, the Court held that Section 201(6), conferred a duty on insurers and claims adjusters covered by the unfair trade practices section to settle claims with insureds and third-party claimants promptly, fairly, and in good faith, and held that a civil action could be maintained for failure to do so. Klaudt, 202 Mont. at 252, 658 P.2d at 1067.
¶25 Following Klaudt, the 1987 Montana Legislature enacted § 33-18-242, MCA. Section 242(1) expressly grants an insured or a third-party claimant a right to bring an independent cause of action against an insurer for actual damages caused by the insurer’s violation of subsections (1), (4)-(6), (9), and (13) of § 33-18-201, MCA. These subsections, set forth above at ¶ 16, prohibit unfair claim handling and settlement practices.
¶26 The legislative history indicates that the Legislature intended to limit the expansion of private causes of action following Klaudt. On January 27,1987, Representative Fred Thomas sponsored House Bill 240, a bill drafted to revise the law on insurance bad faith claims. He stated:
These are claims against insurers arising out of unfair claims settlement practices, which is essentially an administrative remedy that has been on the books for many years. The Supreme Court has expanded the administrative remedy into a court created right of action called the Tort of Insurance Bad Faith. Based on [Klaudt], the [CJourt not only allows insureds to sue their own insurer for the Tort of Insurance Bad Faith but also allows an injured third party to sue the wrong doer’s insurance company. Montana is one of a handful of liberal right of action states. The right of action has also substantially increased premiums to businesses and individuals across the state. Availability, affordability and fairness are the issues of this bill. Our [CJourt has swung the pendulum so far in favor of the trial lawyers that it has stacked the deck against insurers, as a result, all of us pay. This bill swings the pendulum back towards the middle. It limits the action where an insurer should be held accountable for an injury it causes to a person through highly improper conduct. This bill also encourages alternative dispute resolution; this should cut down on court congestion and unnecessary litigation processes. [The bill] moves us toward the original intent of the Unfair Claims Settlement Practices Act but courts will still be able to hear those insurance bad faith actions that in the past have given insurance companies such a black eye.
¶27 The legislative history also contains written proposed amendments to HB 240 as well as a transcript of discussions about the bill by proponents and opponents. Then-Commissioner of Insurance Andrea Bennett supported the original bill in which Section 242 granted but limited private rights of action.
¶28 Opponents to the bill complained that it was too limiting and did not allow for private rights of action for all fourteen unfair claim settlement practices identified in Section 201. In fact, the original HB 240 contained a statement that Section 242 was to apply to all provisions in Title 33, chapter 18, part 2, “Insurer’s Relations with Insured and Claimant.” However, the Commissioner urged deletion of this statement and it was deleted from the bill; thus, only a violation of the enumerated sections set forth in Section 242(1) are actionable. ¶29 At present, Section 242 allows an insured or third-party claimant to bring an independent cause of action against an insurer for actual damages caused by the insurer’s violation of the six enumerated subsections of § 33-18-201, MCA. Caring and Health Care argue that Section 242 is the only provision of the UTPA that affords a private right of action, and that it does not supply any authority for the claims made by Ibsen. First, Caring and Health Care point out that Ibsen is neither an insured nor a third-party claimant; thus, it has no standing to invoke the provisions of Section 242. Second, they note that Section 242 does not in any event permit a private right of action by any person for claims arising either from the unlawful extension of rebates (Section 208) or the illegal dealing in premiums (Section 212).
¶30 Ibsen counters that Section 242 merely codified Klaudt’s common-law-recognized private right of action for an insurer’s violation of claims handling practices because “claims handling practices” was the only issue with which the legislators were concerned in 1987. Ibsen argues that Section 242 does not preclude private rights of action generally or for other claimed violations of the UTPA, nor does it preclude common law claims based upon statutorily-prohibited conduct.
¶31 We have addressed previously whether an individual claimant has the right to bring a private action to enforce a statute that primarily was intended to be regulated by a governing agency. In Wombold, we were asked to determine whether the Consumer Loan Act (CLA) created or implied a private right of action to enforce the provisions of the statute. Wombolds brought an action against Associates Financial Services Company (AFS), a licensed lender under the CLA, alleging that AFS employed illegal lending practices in its real estate-secured loans with the Wombolds. Wombold, ¶ 1. AFS argued that the Department of Administration (DOA), the enforcement agency over the CLA, was “the sole entity authorized to seek a remedy for violations of the act in the Courts.” Wombold, ¶ 33. The district court disagreed and granted Wombolds’ motion for partial summary judgment holding that the CLA afforded a private right of action. Wombold, ¶ 2. AFS appealed.
¶32 In our review, we first noted that the CLA did not expressly authorize a private right of action, nor did the legislative history indicate an intent to expressly grant or deny such a right. Wombold, ¶ 34. We then considered the following factors to determine if the statute implied such a right: (1) is the interpretation [allowing a private right of action] consistent with the statute as a whole; (2) does the interpretation reflect the intent of the legislature considering the statute’s plain language; (3) is the interpretation reasonable so as to avoid absurd results; and (4) has the agency charged with the administration of the statute placed a construction on the statute. Wombold, ¶ 35. (As noted in ¶ 24, this is the same test we applied in Klaudt.)
¶33 We determined that the CLA had the beneficent purpose to regulate consumer lenders and protect borrowers; it should therefore be construed liberally. Wombold, ¶ 36. We observed that the statute granted certain rights to borrowers regarding the structure of their loans and that those rights would be meaningless if the borrowers could not enforce them. Wombold, ¶ 37. We attributed the presence of an attorney fee provision in the law as confirmation of legislative intent to grant a private right of action. Wombold, ¶ 42. We also concluded that implying a private right of action would not lead to absurd results. Wombold, ¶ 45. Lastly, in holding that a limited private right of action was implied under the CLA, we acknowledged that the DOA had issued no statement addressing this issue; therefore, we considered the Montana Attorney General’s interpretation of the statute to include a private right of action. Wombold, ¶ 46. Based upon this analysis, we determined that the CLA did not prohibit Wombolds’ private cause of action. Wombold, ¶ 47.
¶34 We revisited this analysis in Faust v. Util. Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173 P.3d 1183, when we were asked to determine whether the Montana Water Use Act (WUA) created a private right of action. Faust, ¶ 4. Faust owned real property and water rights in Gallatin County at the time of this suit. Faust, ¶ 5. Utility Solutions operated a water and wastewater system to service private developments, and while awaiting appropriate permits began pumping groundwater before final regulatory approval had been granted. Faust, ¶ 6. Faust, arguing his water rights would be adversely affected by Utility’s groundwater appropriations and violation of the WUA, sought injunctive relief and civil penalties. Faust, ¶¶ 7 and 8. The district court granted Utility’s motion to dismiss holding that Faust lacked standing to sue under the WUA. Faust, ¶ 9.
¶35 On appeal, the Court determined that Faust’s injunctive relief claim was moot because the Department of Natural Resources and Conservation (DNRC), the permitting and regulatory agency, had issued the final permit to Utility and the company was extracting groundwater legally. Therefore, we addressed “only whether the [WUA] creates a right of action that allows private citizens to enforce its civil penalty provisions.” Faust, ¶ 23. Turning to the express language of the statute, we reviewed, among other provisions, the WUA’s “judicial enforcement” provision and observed that it referred only to actions initiated by the DNRC, not by private citizens. Faust, ¶ 25. As in Wombold, we noted the existence of an attorney fee provision but ruled it inapplicable to Faust’s claim for civil penalties because it pertained expressly and exclusively to claims for injunctive relief. Faust, ¶ 26. Additionally, reviewing the statute as a whole, we noted that the fines and penalties that could be imposed by a district court must be deposited into a special fund to finance departmental regulatory enforcement of the Act; thus, the district court was not authorized to award fines and penalties to a private citizen. Faust, ¶ 27. Relying on these findings as well as the legislative history which supported the absence of a private right of action, we affirmed the district court’s ruling and concluded that the WUA tasked the DNRC, the attorney general, or the county attorney with enforcing the Act’s civil penalty provisions, but it conferred no such right upon a private citizen. Faust, ¶¶ 30-31.
¶36 Turning back to the UTPA, the United States District Court for Montana concluded that the UTPA did not create or imply a private right of action to enforce §§ 33-18-204 and -212, MCA, in Shupak v. New York Life Ins. Co., 780 F. Supp. 1328, 1338 (D. Mont. 1991). Ibsen acknowledges this but argues that Shupak is not controlling and has been contradicted by several subsequent Montana Supreme Court cases. Relying on O’Fallon v. Farmers Ins. Exch., 260 Mont. 233, 859 P.2d 1008 (1993), Thomas v. Northwestern Nat’l Ins. Co., 292 Mont. 357, 973 P.2d 804 (1998), and Williams v. Union Fid. Life Ins. Co., 2005 MT 273, 329 Mont. 158, 123 P.3d 213, Ibsen maintains it is entitled to bring common law tort claims based upon insurer conduct that is not expressly listed in § 33-18-201, MCA.
¶37 In O'Fallon, O’Fallon was injured in an automobile accident caused by an insured of Farmers. O’Fallon, 260 Mont. at 235, 859 P.2d at 1009. O’Fallon brought an action to recover damages for Farmers’ violation of § 33-18-201(4) and (6), MCA (refusal to investigate, pay claims, and settle in good faith). The district court dismissed O’Fallon’s complaint and he appealed. O’Fallon, 260 Mont. at 236, 859 P.2d at 1010. This Court reversed the district court, determining that O’Fallon was a “third-party claimant” under the UTPA, and therefore his Sections 201 and 242 statutory claims were not barred. O’Fallon, 260 Mont. at 242, 859 P.2d at 1013. The claims asserted in O’Fallon were clearly statutory claims expressly permitted under Section 242; they were not common law tort claims.
¶38 In Thomas, the Thomases, plumbing and heating contractors, submitted a claim to Northwestern Insurance, their CGL insurer, arising out of damages to a client’s property resulting from a spill that occurred during an installation. The insurer denied the claim based upon a modified “total pollution exclusion” that had been added to Thomases’ renewal policy but had not been pointed out by the insurer. Thomas, ¶¶ 7-8. Thomases claimed that the insurer failed to provide adequate notice of the revised and more-restrictive exclusion provision, was negligent, and breached its fiduciary duty as well as its duty of good faith and fair dealing. Thomas, ¶ 11. The insurer asserted that Section 242 precluded Thomases from seeking recovery under their common law theories. Thomas, ¶ 12. The district court agreed and granted the insurer’s motion for summary judgment. Thomas, ¶ 13. We reversed, holding that Section 242 did not preclude common law claims for insurer misconduct pertaining to contract renewal. Thomas, ¶ 37. Notably, we observed that the provisions of § 33-18-201, MCA, did not address the conduct which was the subject matter of the tort claims (Thomas, ¶ 34), and that appellants “allege pure common law claims without adding violations of the UTPA.” Thomas, ¶ 36. This case is distinguishable from the case at hand because the Thomases’ common law claims fell completely outside of the UTPA, and were not premised upon any violation of the Act.
¶39 Similarly, in Williams, the insured filed a civil action against Union alleging breach of contract, fraud, breach of implied covenant of good faith and fair dealing, and breach of Union’s statutory obligations under the MIC and the Unfair Claim Settlement Practices Act. Williams, ¶ 13. Following a jury ruling that Union did not breach its contract, Williams appealed and Union cross-appealed. Williams, ¶ 16. On cross-appeal, Union claimed that Williams’ fraud and bad faith claims were barred under Section 242. Williams, ¶ 54.
¶40 In arguing that her common law claims were not barred, Williams observed that while the legislature prohibited post-claim underwriting in § 33-18-215, MCA, she was not asserting that the post-claim underwriting violation could form the basis of an independent claim; rather, she claimed that the statutory violation was relevant to her claims of bad faith, fraud, and malice, as well as to her claim for breach of contract. Williams, ¶ 30. She further maintained that her common law actions were premised upon conduct that occurred prior to the application phase of the insurance transaction (which by definition would have preceded any claims handling or settlement practices that are the subject of Sections 201 and 242), and thus her claims were not governed or barred by Section 242. Williams, ¶ 55. Without discussion, we agreed that Section 242 did not govern. We then affirmed the district court on the grounds that Union had failed to satisfy its summary judgment burden. Williams, ¶ 58.
¶41 As the foregoing cases establish, purely common law causes of action based upon insurer misconduct are not precluded. However, there is a distinction between pursuing damages for violation of a statute, and pursuing an independent common law cause of action. As addressed further below, Ibsen, the plaintiff here, seeks to privately enforce a regulatory statute so as to recover damages. In Thomas and Williams, by contrast, the plaintiffs were pursuing common law claims, and not claims that were predicated upon a statutory violation. While Williams referenced a statutory violation as evidentiary support for her common law claims, she affirmatively stated she was not seeking to enforce the statute as a basis for the recovery of damages. The distinction is not semantical. A party may always allege and recover damages in a common law cause of action upon proof of a common law claim, but a party is not entitled to obtain private enforcement of a regulatory statute that is not intended by the legislature to be enforceable by private parties.
¶42 We now return to Ibsen’s Complaint. Ibsen acknowledges that Count II is premised expressly upon violation of Sections 208 and 212 of the UTPA, but asserts that the remaining three counts for breach of contract, breach of fiduciary duty, and unjust enrichment are common law claims. We disagree. It is clear from the contents of the Complaint as well as the express representations made by Ibsen in the federal proceeding that Ibsen is seeking private enforcement of the foregoing provisions on behalf of the class. Its breach of fiduciary duty count is premised upon the unlawful collection of excessive medical premiums and the payment of rebates “in violation of the Montana Insurance Code.” Its unjust enrichment count seeks disgorgement of the illegal or excessive premiums and rebates “in violation of the Montana Insurance Code.” It is not possible to conduct an informed analysis of Ibsen’s breach of contract claim because Ibsen does not identify a particular contract that was breached; it simply asserts that all of the parties entered into written insurance contracts and impliedly incorporated all sections of the Montana Insurance Code into those various contracts. Again, however, this count relies upon incorporation of the MIC. These are not purely common law causes of action.
¶43 We are mindful that premising the class complaint upon a violation of the insurance code that has already been established and sanctioned by the Insurance Commissioner would pave a clear path to recovery on behalf of the class. If the UTPA allowed a private right of action for rate discrimination and premium overcharges, we would not hesitate to reverse the decision of the District Court. However, we conclude that the UTPA does not expressly or impliedly create a private right of action for violation of Sections 208 and 212.
¶44 Our conclusion here finds support in Fossen v. Caring for Montanans, Inc., 993 F. Supp. 2d 1254 (D. Mont. 2014), and Fossen v. Caring for Montanans, Inc., 617 Fed. Appx. 737 (9th Cir. 2015). While we are not bound by the decisions of the U. S. District Court of Montana or the Ninth Circuit Court of Appeals, when federal courts have ruled on issues substantially similar to those before us, it is proper for us to review their opinions for guidance. Kafka v. Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT 460, ¶ 162, 348 Mont. 80, 201 P.3d 8.
¶45 In Fossen, the Fossens brought a breach of contract claim against Caring for Montanans alleging that Caring had unfairly discriminated against them by charging a higher premium rate in violation of UTPA provision § 33-18-206(2), MCA. The U. S. District Court for the District of Montana analyzed the UTPA in detail to determine whether the statutes expressly or impliedly created a private right of action. Fossen, 993 F. Supp. 2d at 1258-1260. The court concluded that § 33-18-242, MCA, was the sole provision in the UTPA granting to insureds and third-party claimants private rights of action arising from certain specified claims handling and settlement practices identified in § 33-18-201, MCA, but for no other purpose. Fossen, 993 F. Supp. 2d at 1260. As the Fossens’ claims rested upon rate discrimination in violation of § 33-18-206(2), MCA, and not the insurer’s claims handling practices, Fossens had no right to bring an action under the UTPA. Fossen, 993 F. Supp. 2d at 1264.
¶46 The U. S. District Court addressed Fossens’ reliance on State ex rel. Larson v. Dist. Court, 149 Mont. 131, 423 P.2d 598 (1967) and First Sec. Bank v. Goddard, 181 Mont. 407, 593 P.2d 1040 (1979) by noting that both of these cases were claims handling breach of contract cases decided before the enactment of Section 242, and they did not support Fossens’ claims. The court held that there “is no common law or statutory private right of action pertaining to ... claims of rate discrimination in violation of subsection 206 of the UTPA.” Fossen, 993 F. Supp. 2d at 1263. Subsequently, the Ninth Circuit Court of Appeals affirmed the U. S. District Court decision. Fossen, 617 Fed. Appx. at 739. The Ninth Circuit observed that since the 1987 legislative amendments, “the Montana Supreme Court has never recognized a private right of action for the violation of a UTPA provision other than those provisions identified in § 33-18-242(1).” Fossen, 617 Fed. Appx. at 739.
¶47 Finally, our conclusion here is buttressed by application of the four-part test we applied in Klaudt and Wombold to determine whether a statutory scheme implies a private right of action. (See ¶¶ 24 and 32 herein). The first prong of the test is whether the interpretation allowing a private right of action is consistent with the statute as a whole. Wombold, ¶ 35. Ibsen’s interpretation fails this component of the test for two reasons. First, the statute contains an express “Enforcement” section at §§ 33-18-1001 through -1006, MCA. These provisions charge the Commissioner with the enforcement of the UTPA, and provide it with the authority to investigate alleged violations of the Code, conduct hearings, impose fines, and issue cease and desist orders. Second, Section 242 expressly grants insureds and third-party claimants, “an independent cause of action against an insurer” for the insurer’s violation of discrete provisions of § 33-18-201, MCA. Section 242 provides the narrow exception to the rule that it is the Commissioner who will enforce the UTPA. Thus, an interpretation allowing a private right of action for violation of Sections 208 and 212 is inconsistent with the statute as a whole.
¶48 The second prong of the test is whether the interpretation allowing for a private right of action reflects the intent of the legislature considering the statute’s plain language. Wombold, ¶ 35. Our discussion above at ¶¶ 25-27 establishes that the legislature did intend to limit the expansion of private causes of action when it enacted Section 242. The third prong of the test is whether the interpretation urged by Ibsen is reasonable so as to avoid absurd results. Wombold, ¶ 35. We conclude, premised upon the foregoing statutory and case history, that expanding the private right of action as Ibsen urges is neither reasonable nor required to avoid absurd results.
¶49 Lastly, we turn to the final prong of the test, which is whether the agency charged with the administration of the statute has placed a construction on the statute. Wombold, ¶ 35. The Commissioner of Insurance has been involved in the adoption and interpretation of the Montana Insurance Code since its enactment. Then-Commissioner John Holmes attended the January 1959 hearings pertaining to a proposed bill to dramatically revise Montana insurance law. In 1977, counsel for the Commissioner introduced a senate bill to revise the unfair insurance claim settlement and enforcement procedures, giving greater authority to the Commissioner. Subsequently, in 1987, the Commissioner was a consistent participant in the January, February, and March meetings leading to the enactment of Section 242. During these meetings there was lengthy discussion pertaining to the extent of private rights of action to be provided under proposed Section 242. The legislative history clearly states that “an insured or third-party claimant has a separate cause of action against an insurer for certain unfair claim settlement practices.” (Emphasis added.) Mont. Sen. Business & Industry Comm., Meeting on House Bill 240, 50th Legis., Reg. Sess. (March 9, 1987). As noted above, the sponsor of the bill emphasized that the bill was designed to “swing the pendulum back towards the middle” rather than continuing a trend favoring trial lawyers and disfavoring insurers. Opponents to the bill urged the committee to reject the bill because proposed Section 242 “limit[ed] the kinds of prohibitive acts which give rise to an individual or a private cause of action.” The Commissioner supported the bill and actively engaged in discussion and proposed amendments.
¶50 In the Commissioner’s amicus brief in the case before us, the Commissioner argues that the Model UTPA contains a provision that explicitly states the Act does not create a private right of action, but the Montana UTPA does not contain such a statement. She acknowledges that if a claimant has a dispute with an insurer based upon the insurer’s claims handling or settlement practices, the claimant is expressly authorized to bring a private cause of action under Section 242. She goes on to argue that if a claimant has a dispute with an insurer based upon any type of UTPA misconduct that is unrelated to claims and settlement handling, Section 242 simply does not restrict such claims. We respectfully decline the present Commissioner’s invitation to announce an open-ended private right of action for all violations of the UTPA. Because the Commissioner’s understanding of the intent of the statute at the time the statute was enacted comports with the intent of the Legislature when enacting Section 242, we defer to the construction placed on the statute by the Commissioner directly involved with Section 242’s passage. We therefore conclude that the UTPA does not imply a private right of action. Rather, it expressly confers enforcement authority upon the Commissioner and narrowly provides a limited private right of action only in Section 242.
¶51 Ibsen and amicus MTLA urge us to consider § 27-1-202, MCA, which states “Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages.” Our decision here does not run afoul of this statute. Ibsen and other members of the class were entitled to pursue common law claims for fraud, deceit, and misrepresentation against these defendants premised upon their actions, and to recover damages for the detriment they suffered as a result.
¶52 As we are affirming the District Court, we need not address the ERISA arguments presented by the parties nor the claims pertaining to Health Care.
CONCLUSION
¶53 For the reasons set forth in this Opinion, we conclude Ibsen’s private enforcement claims against BCBSMT, Caring for Montana, and Health Care Services Corp. for violations of Sections 208 and 212 of the UTPA are precluded. We therefore affirm the decision of the District Court.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, McKINNON, SHEA and RICE concur.
The District Court determined that Ibsen was neither an insured nor a third-party claimant under the UTPA and Ibsen did not dispute this initially. Ibsen now claims that it was an “insured employer.” As our disposition of this case does not require resolution of Ibsen’s status nor what benefits such a status commands, we do not disturb the District Court’s ruling.
|
[
10,
-35,
-9,
12,
58,
-13,
50,
-42,
-4,
31,
20,
71,
94,
-15,
17,
-14,
1,
14,
32,
46,
-41,
-21,
-47,
4,
6,
-7,
7,
-13,
-26,
23,
26,
11,
5,
19,
-53,
37,
-38,
37,
-26,
-15,
17,
-33,
30,
-21,
35,
37,
60,
-1,
70,
7,
53,
-9,
-46,
11,
7,
-19,
25,
-2,
-11,
-9,
-27,
-67,
66,
14,
64,
7,
34,
31,
41,
-36,
8,
-25,
6,
-42,
44,
-54,
24,
-29,
6,
-66,
-13,
2,
-24,
-62,
-31,
40,
-30,
-9,
39,
-5,
-13,
-77,
41,
-37,
-24,
75,
-26,
-15,
-4,
44,
12,
-4,
-78,
-21,
-44,
-6,
-22,
8,
-11,
28,
-128,
27,
-53,
-46,
26,
25,
-13,
60,
-9,
67,
-44,
33,
-12,
-38,
19,
39,
36,
22,
-73,
35,
1,
-23,
8,
-14,
4,
19,
-19,
-51,
-21,
-7,
-26,
-18,
-19,
12,
30,
20,
-31,
-32,
-55,
-66,
39,
54,
20,
32,
-13,
-16,
-99,
-11,
58,
-40,
-26,
-36,
37,
20,
5,
55,
20,
18,
-23,
15,
-4,
-4,
-9,
6,
-5,
48,
24,
-33,
-43,
-37,
-8,
-15,
-45,
16,
7,
8,
55,
-44,
49,
-43,
-8,
-13,
-27,
50,
-38,
-57,
-36,
20,
-4,
-13,
19,
9,
-28,
16,
39,
30,
24,
-71,
17,
-6,
43,
-7,
-52,
-20,
-8,
-17,
-24,
-81,
-17,
-41,
-4,
-13,
-17,
11,
-51,
-31,
68,
-45,
-26,
-77,
-18,
5,
8,
34,
-11,
-20,
-26,
-48,
17,
55,
0,
-15,
7,
-4,
-14,
-6,
-50,
11,
-23,
19,
-13,
-12,
53,
75,
10,
30,
-17,
23,
-47,
-37,
14,
-9,
-57,
33,
63,
9,
44,
19,
57,
5,
-26,
68,
31,
-16,
-59,
-40,
49,
-38,
80,
-38,
15,
50,
-39,
-7,
-20,
-21,
-11,
-18,
-74,
-63,
-14,
35,
-16,
-7,
46,
-27,
38,
-6,
-41,
-5,
0,
5,
48,
33,
31,
47,
-56,
17,
43,
-32,
-9,
-14,
-63,
-72,
-3,
-37,
-19,
-20,
-13,
15,
18,
8,
-1,
49,
-86,
-28,
-8,
-54,
71,
-11,
-22,
-22,
20,
5,
-32,
-57,
51,
-28,
21,
-5,
-4,
8,
20,
-80,
-29,
65,
14,
17,
-5,
-64,
6,
58,
-46,
12,
9,
41,
42,
0,
-67,
-1,
1,
-14,
-23,
-37,
-37,
-11,
-27,
49,
-39,
7,
-55,
27,
18,
-39,
-6,
4,
-58,
64,
-29,
17,
49,
4,
15,
-45,
24,
37,
-51,
0,
0,
-57,
-30,
12,
14,
66,
18,
0,
-53,
-74,
17,
36,
61,
30,
-5,
31,
34,
-40,
-2,
-29,
-37,
-35,
-21,
-39,
-17,
-76,
-16,
22,
-32,
-34,
-15,
-13,
24,
-16,
-33,
17,
5,
-68,
13,
44,
-62,
52,
-50,
-21,
-2,
-7,
-14,
-35,
0,
-11,
38,
16,
-12,
12,
-70,
-31,
4,
22,
21,
42,
37,
-44,
28,
16,
0,
10,
-5,
32,
-11,
29,
-25,
-23,
20,
23,
49,
11,
51,
-17,
7,
6,
9,
23,
-38,
-22,
3,
29,
21,
45,
-38,
33,
-72,
30,
-17,
-11,
32,
8,
22,
21,
-8,
-1,
-54,
-18,
42,
18,
-31,
1,
-41,
-20,
3,
15,
16,
5,
-12,
-56,
-1,
-58,
26,
-22,
-11,
-16,
-44,
-53,
47,
12,
49,
34,
-7,
26,
-20,
-1,
11,
15,
-40,
12,
-7,
-7,
22,
-14,
18,
7,
60,
-37,
-8,
32,
5,
6,
-17,
19,
78,
-23,
35,
-25,
69,
6,
-5,
10,
31,
-30,
43,
39,
72,
-33,
-16,
5,
50,
4,
26,
25,
28,
42,
18,
26,
-18,
79,
-57,
14,
18,
-5,
-25,
34,
62,
-21,
-24,
2,
19,
-21,
-19,
-69,
-48,
-35,
-12,
-9,
0,
-41,
27,
-24,
-73,
25,
-16,
-32,
-24,
-74,
36,
-49,
-48,
56,
-3,
-14,
73,
-23,
-54,
3,
-16,
-44,
-77,
-26,
-53,
-10,
-8,
19,
55,
-21,
-65,
6,
-3,
-16,
-38,
-26,
44,
-13,
66,
-37,
-4,
11,
20,
53,
33,
11,
9,
-10,
10,
-20,
67,
-22,
56,
-31,
-29,
-29,
-13,
63,
9,
-38,
5,
-22,
42,
27,
-29,
-9,
63,
-5,
10,
-51,
52,
59,
22,
21,
-56,
24,
22,
33,
-15,
39,
6,
9,
-9,
44,
22,
4,
102,
-29,
-4,
3,
42,
22,
13,
5,
54,
0,
-6,
7,
2,
82,
-58,
-15,
45,
34,
-25,
50,
48,
-10,
17,
-90,
-12,
40,
-40,
-78,
32,
-41,
-2,
19,
21,
32,
-6,
34,
-47,
22,
3,
38,
-36,
-22,
-12,
15,
32,
-46,
44,
-45,
48,
5,
-58,
15,
42,
-19,
-31,
-82,
2,
-22,
21,
-27,
9,
13,
-18,
39,
-37,
-53,
8,
13,
20,
-24,
46,
-1,
-23,
13,
67,
66,
57,
44,
-65,
6,
-59,
-14,
-15,
50,
25,
47,
-27,
-23,
-42,
-6,
-27,
46,
11,
-34,
-8,
72,
80,
63,
34,
5,
7,
-20,
-19,
-5,
18,
67,
-35,
25,
30,
20,
35,
-43,
-48,
4,
60,
-19,
29,
-41,
-1,
4,
23,
7,
8,
21,
0,
65,
15,
-63,
-11,
-5,
16,
-25,
-18,
-31,
53,
9,
-50,
46,
-38,
-29,
-8,
-9,
43,
-6,
-75,
1,
84,
-5,
40,
-73,
-89,
2,
-34,
-5,
-22,
-16,
4,
19,
-3,
-40,
-85,
-4,
8,
-47,
16,
55,
-72,
-2,
-56,
71,
51,
4,
-15,
7,
31,
21,
-21,
22,
60,
-26,
-13,
-1,
14,
-5,
-53,
-10,
53,
6,
41,
-12,
-3,
-40,
32,
60,
12,
20,
-23,
61,
42,
-26,
0,
-12,
-38,
21,
-51,
21,
34,
-31,
-8,
26,
-13,
-16,
5,
-29,
-48,
45,
-55,
4,
-12,
-19,
-2,
51,
-50,
-7,
3,
-31,
-30,
-17,
0,
-14,
-40,
-5,
25,
-39,
-73,
45,
19,
51,
0,
77,
-42,
-31,
-2,
47,
43,
-23,
16,
-13,
-31,
44,
-7,
58,
-27,
40,
-8,
-25,
54,
14,
-45,
64,
-38,
3,
0,
50,
-10,
55,
-50,
69,
18,
-15,
0,
23,
-30,
5,
42,
40,
90,
35,
-23,
0,
-15,
-90,
-13,
-18,
30,
0,
5,
36,
-86,
-18,
-19,
8,
0,
7,
-21,
24,
-28,
-24,
-4,
-36,
46,
-22,
50,
-57,
32,
49,
-7,
-7,
-42,
-20,
-8,
-3,
19,
31,
-4,
42,
-18,
75,
-66,
32,
-93,
-7,
-13,
16,
6,
69,
-6,
-11,
21,
-53,
15,
42,
26,
-59,
34,
9,
-32,
-29,
-22,
22,
23,
-65,
74,
0,
31,
14,
69,
-61,
-18,
-41,
-5,
-30,
-19,
-3,
-49,
46,
14,
-15
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Gloria Ferrari, CalvinAthy, and Tyler Omyer (jointly Appellants) were convicted in the City of Kalispell Municipal Court of various traffic violations including driving with a suspended license. They appealed their convictions to the Eleventh Judicial District Court, Flathead County. After the District Court affirmed the convictions, they appealed separately to this Court. While the factual backgrounds differ slightly, the legal issue and analysis are identical; therefore we have consolidated these cases for the purpose of appeal and this Opinion. Attorney Greg Rapkoch represented each of the Appellants in the Municipal and District Courts. Assistant Appellate Defender Natalie Wicklund represented all of the Appellants before this Court. We affirm.
ISSUES
1. Did the District Court err in failing to determine whether § 61-5-212, MCA, imposed absolute liability on each of the Appellants'?
2. Did the District Court abuse its discretion by holding that the evidentiary “letters of suspension” were admissible as “certified copies of public records” under M. R. Evid. 902(4) (Rule 902(4))?
FACTUAL AND PROCEDURAL BACKGROUND
Gloria Ferrari
¶2 On June 20, 2010, Gloria Ferrari was cited by Kalispell Police Officer A. J. McDonnell for various traffic violations including driving with a suspended license. The Kalispell Municipal Court conducted a bench trial on May 30, 2013. Ferrari was represented by appointed counsel Rapkoch but was not in attendance. McDonnell presented Ferrari’s “Certified Driver Record” generated by the State of Montana Department of Justice, Motor Vehicle Division (MVD), as well as six letters from MVD to Ferrari informing her that her license was suspended. Counsel objected to the suspension letters as hearsay and in violation of Ferrari’s United States and Montana constitutional rights to confrontation. The Municipal Court admitted the evidence over counsel’s objection. Ferrari was found guilty and sentenced to 180 days in jail with 178 suspended and fined $325.00. She appealed to the District Court.
Calvin Athy
¶3 On September 10, 2012, Calvin Athy was cited by Officer Stan Ottosen of the Kalispell Police Department for multiple traffic violations including driving with a suspended license. At the May 30, 2013 Municipal Court bench trial, Athy was represented by Rapkoch but Athy did not attend the trial. Ottosen testified at Athy’s trial and presented Athy’s “Certified Driver Record” as well as three letters from MVD to Athy notifying him that his license was suspended. Counsel objected to the letters on hearsay and Confrontation Clause grounds but the Municipal Court admitted the evidence and found Athy guilty. Athy was sentenced to a 180-dayjail sentence with 178 days suspended and fined $325.00. On June 11, 2013, Athy appealed his judgment to the District Court.
Tyler Omyer
¶4 On December 8, 2012, Tyler Omyer was cited by Sargent Allen Bardwell of the Kalispell Police Department for multiple traffic violations including driving a motor vehicle with a suspended license. The Kalispell Municipal Court conducted a bench trial on June 27, 2013, at which Omyer was present and represented by Rapkoch. Bardwell presented Omyer’s “Certified Driver Record” as well as six letters sent by MVD to Omyer notifying him that his driver’s license was suspended for reasons stated in the letters. Omyer objected to the admission of the MVD suspension letters on hearsay and Confrontation Clause grounds. The Municipal Court admitted the evidence, convicted Omyer of all offenses, and sentenced him to 180 days in jail with 178 suspended. The court allowed him to serve his time at the community car wash or the animal shelter. Additionally, he was fined $325.00. On July 25, 2013, Omyer appealed to the District Court.
¶5 The three cases were consolidated by the District Court for purposes of appeal. Counsel for the Appellants had not objected to, nor did he appeal, the Municipal Court’s admission of the “Certified Driving Record” for each defendant as each record unequivocally established that the license for each driver was suspended at the time of the traffic stops and of citations to each. Rather, counsel argued that conviction of the offense of driving with a suspended license required the City to prove that each defendant had a culpable mental state, i.e., that they “knew” their licenses were suspended at the time of their offenses. Counsel claimed that the only evidence presented of the Appellants’ knowledge of their suspensions were the MVD suspension letters. Counsel asserted that these letters were inadmissible because they contained “testimonial hearsay” subject to the protections of the Confrontation Clauses of the United States and Montana Constitutions. The certificate of mailing language stamped onto the bottom of each notification letter and challenged by the Appellants read:
The undersigned hereby testifies that on the date below, he or she, as an officer or employee of the motor vehicle division, deposited in the United States mail at Helena, Montana, a copy of the paper to which this is affixed, in an envelope with the postage prepaid, addressed to the person named in the paper at his or her last address as shown by the records of the Department.
Date Officer or Employee of Department
Counsel argued that this language constituted testimony and was included in letters that were “prepared in anticipation of use at trial to prove historical facts relevant to prosecution.” Counsel claimed that had the evidence been properly excluded, there would have been no evidence presented at trial establishing a “knowing” culpable mental state and Appellants could not have been convicted under § 61-5-212, MCA.
¶6 The City of Kalispell responded that the MVD letters were properly admitted as self-authenticating business records under § 61-11-102, MCA, and Rule 902(4) of the Montana Rules of Evidence. The City further argued that the challenged letters did not constitute testimonial evidence triggering the Confrontation Clause and were admissible under Rule 803(8), M. R. Evid. Lastly, the City countered that under § 26-1-602(24), MCA, it is presumed that a correctly addressed and mailed letter is received by the intended recipient and none of the Appellants rebutted this presumption at trial.
¶7 The District Court determined that the stamped certificates of mailing included in each suspension letter did not constitute testimonial hearsay; rather, the letters were certified copies of public records and were admissible under Rules 902(4) and 803(8) of the Montana Rules of Evidence. The court also concluded that Appellants had not rebutted the statutory presumption that they had received the suspension letters; therefore, the court presumed receipt.
¶8 Appellants filed timely appeals.
STANDARD OF REVIEW
¶9 Section 3-6-110, MCA, governing a district court’s review of a municipal court’s ruling, confines the district court’s review to the record and questions of law. Section 3-6-110(1), MCA. In turn, when this Court reviews the district court, we undertake an independent examination of the record apart from the district court’s decision and will “affirm the district court when it reaches the right result, even if it reaches the right result for the wrong reason.” State v. Gai, 2012 MT 235, ¶ 11, 366 Mont. 408, 288 P.3d 164. Based upon our review of the trial court’s record, we review the trial court’s factual findings under the clearly erroneous standard, its discretionary rulings for an abuse of discretion, and its legal conclusions de novo. State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646.
DISCUSSION
¶10 Each of the Appellants was convicted under § 61-5-212, MCA, which provides, in relevant part:
(l)(a) A person commits the offense of driving a motor vehicle without a valid license or without statutory exemption or during a suspension or revocation period if the person drives:
(i) a motor vehicle on any public highway of this state at a time when the person’s privilege to drive or apply for and be issued a driver’s license is suspended or revoked in this state or any other state ....
¶11 Appellants assert on appeal that the District Court abused its discretion by admitting testimonial hearsay evidence at trial in violation of the Confrontation Clauses of the Montana and the United States Constitutions. They claim that testimonial hearsay is “an out-of-court statement offered for the truth of the matter asserted and where the declarant spoke in a manner as to create evidence.” They explain that in this case “unknown government agents purport to testify in writing that [defendant] should have had notice and knowledge of her [or his] suspended license.” Appellants claim that testimonial hearsay is only permissible if a court determines a declarant is unavailable and the defendant had a prior opportunity for cross-examination. They argue this did not occur. They request that we reverse and remand for new trials with instructions that the trial court reject admission of the suspension letters.
¶12 The State counters that the suspension letters were not testimonial hearsay but were contemporaneous business records created for the administration of the MVD’s operations and not for the purpose of establishing or proving some fact at trial. As such the letters were admissible. Additionally, the State asserts that even if the letters were erroneously admitted, the error was harmless because “driving with a suspended license” is an absolute liability offense that does not require knowledge of the suspension.
¶ 13 1. Did the District Court err in failing to determine whether §61-5-212, MCA, imposed absolute liability on each of the Appellants?
¶14 We first address the State’s assertion that § 61-5-212, MCA, establishes that driving with a suspended license is an absolute liability offense which does not require proof of a mental state. Notably, we have not decided previously whether this offense requires proof of a mental state or is an absolute liability offense. To determine whether the legislature intended an offense to be an absolute liability offense we look to the language of the statute and the statute’s apparent purpose. State v. Huebner, 252 Mont. 184, 827 P.2d 1260 (1992).
¶15 In Huebner, we concluded that § 87-3-102, MCA, prohibiting someone from killing a game animal and abandoning the meat, or removing only the parts suitable for trophy mounting, was an absolute liability statute based upon the State’s responsibility for protecting public wildlife resources. Huebner, 252 Mont. at 188, 827 Mont. at 1263. We relied upon § 45-2-104, MCA, which currently provides that “A person may be guilty of an offense without having, as to each element of the offense, one of the mental states of knowingly, negligently, or purposely only if the offense is punishable by a fine not exceeding $500 or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Huebner, 252 Mont. at 188, 827 Mont. at 1263. Applying a previous, but similar, version of § 45-2-104, MCA (1991), the Huebner Court determined that the language of the statute indicated a legislative purpose to impose absolute liability.
¶16 Turning to § 61-5-212, MCA, the statute does not contain any reference to a mental state, such as knowingly or purposely. It is clear based upon the many statutes in which the Legislature requires a specific mental state, for example, §§ 45-5-102,45-5-201,45-5-202, and 45-6-204, MCA, that had the Legislature intended to require one for this statute, it would have done so. Additionally, the legislative purpose of the statute is not difficult to discern. The State has a compelling interest in keeping unsafe drivers off the road, especially drivers whose privileges have been suspended for various reasons such as unsafe driving, driving while under the influence of alcohol or drugs, or driving without liability insurance. State v. Pyette, 2007 MT 119, ¶ 27, 337 Mont. 265, 159 P.3d 232.
¶17 Furthermore, while we note that § 45-2-104, MCA, is written in the disjunctive and requires only that the statutory penalty not exceed $500 or that the statute clearly indicates a legislative purpose to impose absolute liability, in this case both requirements are met in that § 61-5-212(l)(b)(i), MCA, provides with some exceptions, that a person convicted of driving during a period of license suspension may be fined “not more than $500.” For these reasons, we conclude that the statute clearly indicates a legislative purpose to impose absolute liability and that conviction under this statute does not require a culpable mental state.
¶18 The elements of driving while suspended include driving “a motor vehicle on any public highway” when the driver’s “privilege to drive ... is suspended.” The evidence presented in each of the Appellant’s trials through admission of their Certified Driver Records established that they drove vehicles upon the public roads of this State while their licenses were suspended. As these were the only requirements necessary for conviction under § 61-5-212, MCA, the Municipal Court did not err in convicting the Appellants nor did the District Court err in affirming the Municipal Court. As we indicated above, we will not overturn a district court when it reaches the right result, even if it reaches the right result for a different or a wrong reason. Gai, ¶ 11.
¶19 2. Did the District Court abuse its discretion by holding that the evidentiary “letters of suspension” were admissible as “certified copies of public records” under M. R. Evid. 902(4)?
¶20 We next address the Appellants’ assertion that the letters notifying them of their suspensions contained “testimonial hearsay” and should not have been admitted or used to support their convictions. As indicated above, the District Court affirmed the Municipal Court’s admission of the suspension letters, finding them to be certified copies of public records under Rule 902(4). The court further determined they were not testimonial in nature and were appropriately admitted under the public records hearsay exception set forth in Rule 803.
¶21 Rule 803(8), M. R. Evid. provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Public records and reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trust worthiness.
Rule 902(4), M. R. Evid. provides:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) or complying with any law of the United States or of this state.
¶22 In Billings v. Lindell, 236 Mont. 519, 771 P.2d 134 (1989), we addressed the self-authenticating nature of the MVD’s driving records. We explained that the MVD has the duty to maintain records of license convictions and that it would be unreasonable for a custodian of the department to be present in court each time a record was necessary for a trial. Billings, 236 Mont. at 521, 771 P.2d at 136. We discussed some of the various methods developed by the Legislature through which authenticity is taken as established for purposes of admissibility. Two such methods were Rules 803(8) and 902(4), M. R. Evid. Billings, 236 Mont. at 521-22, 771 P.2d at 136. Based upon the plain language of these rules, the statutorily-mandated purpose of MVD’s record-keeping, and our analysis in Billings, we conclude the District Court did not abuse its discretion in holding that the suspension letters were admissible under Rules 803 and 902(4).
¶23 Lastly, we note that our ruling is consistent with multiple U. S. Supreme Court decisions. That Court distinguishes between testimonial and non-testimonial hearsay, but has repeatedly declined to offer an exhaustive or comprehensive definition of “testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). See also Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006). However, in Davis, the U. S. Supreme Court declared that statements are testimonial when their “primary purpose ... is to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74. Subsequently, in Melendez-Diaz v. Mass., 557 U.S. 305, 129 S. Ct. 2527 (2009), the Court further elaborated that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.” Melendez-Diaz, 557 U.S. at 324, 129 S. Ct. at 2539-40.
¶24 In the case at bar, as in Melendez-Diaz, the primary purpose of the MVD’s suspension letters is not to provide evidence in future criminal prosecutions but rather to notify drivers of a license suspension and to create a statutorily-mandated database of driver’s license records. It is realistic to presume that the vast majority of suspension letters, and other MVD documentation, exist within the agency’s database and printed copies are never generated for purposes of criminal prosecutions. This analysis supports our conclusion that driver’s records are created for the administration of the MVD’s affairs and not for the purpose of proving a fact at trial.
CONCLUSION
¶25 For the foregoing reasons, we conclude the District Court neither erred nor abused its discretion in affirming the Municipal Court’s convictions and judgments of the Appellants.
JUSTICES SHEA, COTTER, BAKER and RICE concur.
|
[
5,
53,
0,
36,
-9,
-65,
-15,
-39,
-25,
27,
-27,
12,
30,
-45,
24,
-26,
16,
29,
19,
-43,
6,
-61,
-15,
21,
-65,
-27,
-2,
-53,
-39,
30,
59,
3,
28,
-48,
-18,
69,
33,
91,
16,
22,
41,
29,
-43,
-14,
-40,
-27,
5,
7,
-31,
-47,
12,
-13,
-19,
-5,
0,
14,
-36,
26,
19,
12,
-22,
-21,
0,
-4,
1,
-39,
35,
29,
17,
-24,
-20,
18,
-65,
-8,
-18,
65,
-31,
32,
-19,
59,
-61,
27,
33,
-32,
41,
-20,
-25,
-51,
-12,
-5,
-24,
-25,
-21,
0,
-7,
16,
9,
-82,
-42,
-67,
-58,
-15,
37,
20,
-39,
48,
-84,
-3,
52,
17,
-43,
32,
35,
-24,
17,
-14,
10,
40,
121,
4,
32,
5,
-7,
41,
-34,
-49,
-22,
17,
-17,
3,
6,
16,
14,
-64,
-18,
-27,
-35,
1,
46,
69,
5,
24,
-7,
54,
-21,
14,
15,
-9,
-6,
-30,
-12,
-14,
41,
10,
-44,
-46,
26,
-19,
29,
0,
24,
-8,
-15,
39,
10,
28,
-20,
2,
-1,
-33,
46,
14,
2,
-7,
59,
-13,
-63,
-23,
39,
-28,
-3,
24,
25,
-42,
-22,
-63,
-16,
20,
16,
-44,
-32,
19,
-33,
-64,
5,
-17,
37,
23,
0,
-59,
33,
10,
27,
22,
-26,
63,
33,
-4,
34,
-34,
19,
-21,
28,
-13,
21,
-10,
22,
3,
-10,
-48,
-8,
-53,
48,
-28,
-67,
-22,
8,
26,
14,
-33,
37,
18,
30,
35,
5,
-14,
6,
-7,
-19,
-20,
-28,
25,
20,
29,
-11,
46,
-18,
-32,
-29,
-55,
26,
-48,
0,
34,
-52,
-23,
113,
-16,
-10,
32,
33,
39,
26,
12,
-24,
0,
13,
24,
6,
-6,
3,
23,
16,
-20,
-13,
-20,
-2,
-26,
41,
39,
14,
6,
-34,
-8,
35,
46,
-13,
26,
-5,
-58,
12,
-51,
-52,
47,
-27,
-46,
23,
-41,
-91,
18,
76,
21,
-15,
0,
9,
-30,
-8,
47,
-52,
72,
33,
21,
-5,
16,
38,
0,
1,
-43,
21,
26,
-7,
35,
-22,
-26,
-6,
11,
-18,
-19,
-70,
-66,
5,
24,
-40,
-21,
51,
-40,
-7,
-1,
20,
-15,
-58,
-33,
10,
9,
-57,
26,
29,
79,
-3,
14,
-14,
32,
32,
4,
-26,
-17,
8,
-27,
-13,
-39,
-40,
13,
10,
9,
-24,
2,
21,
15,
-45,
-26,
-14,
-52,
11,
18,
10,
-73,
11,
38,
-31,
65,
12,
-4,
-13,
-31,
1,
-33,
-16,
-70,
-36,
-97,
23,
19,
-57,
11,
27,
-15,
-2,
-1,
-28,
-22,
-63,
54,
68,
-25,
-22,
-24,
69,
47,
-20,
-3,
5,
-11,
10,
-12,
11,
17,
-25,
-46,
-34,
16,
10,
-23,
-11,
-45,
53,
29,
5,
49,
30,
41,
15,
46,
-64,
-45,
10,
-29,
14,
-46,
22,
-28,
16,
-19,
-11,
15,
-28,
-30,
38,
-43,
10,
24,
-6,
29,
6,
-36,
-18,
42,
26,
13,
-49,
27,
3,
24,
37,
3,
31,
-12,
-14,
-64,
36,
5,
-35,
20,
0,
34,
55,
23,
-19,
11,
-32,
38,
-41,
-20,
14,
2,
10,
-32,
-18,
24,
34,
39,
24,
-20,
-60,
25,
-25,
12,
6,
11,
35,
-44,
-3,
35,
-38,
58,
-39,
-3,
53,
0,
-28,
-59,
2,
35,
-5,
-4,
-27,
-10,
-24,
-25,
22,
-11,
32,
86,
-11,
-7,
-17,
-12,
-5,
-53,
24,
25,
16,
33,
13,
-32,
24,
-19,
15,
14,
31,
17,
45,
25,
-49,
-19,
-25,
-8,
3,
11,
49,
-23,
1,
60,
17,
-11,
-11,
-42,
-3,
-20,
-11,
-2,
15,
25,
31,
32,
37,
46,
-28,
-16,
39,
-15,
-5,
8,
-60,
-55,
-11,
29,
-8,
-1,
-32,
-13,
45,
32,
21,
-3,
-59,
-18,
58,
11,
32,
-46,
26,
-12,
25,
19,
-4,
36,
-5,
10,
11,
5,
14,
45,
19,
28,
26,
23,
23,
-56,
17,
-24,
-44,
-3,
-10,
19,
17,
-10,
17,
-59,
13,
-25,
-20,
-24,
33,
36,
-23,
16,
-41,
-5,
-22,
-56,
-31,
-52,
-62,
-25,
-23,
-8,
-15,
50,
-8,
-23,
54,
69,
85,
-24,
51,
-25,
4,
0,
-48,
-24,
-4,
30,
-35,
-69,
27,
7,
-26,
-8,
-6,
16,
23,
41,
-30,
32,
-62,
-36,
-9,
37,
33,
49,
32,
-50,
5,
0,
10,
-21,
29,
25,
-36,
-24,
43,
-16,
49,
-87,
5,
45,
-10,
41,
28,
-32,
9,
95,
11,
5,
17,
-44,
-4,
-35,
-28,
13,
-19,
30,
-74,
-29,
-44,
46,
-8,
-31,
25,
32,
15,
2,
19,
62,
-35,
-25,
11,
19,
-47,
-44,
-2,
-69,
-46,
-9,
50,
2,
-16,
-24,
-24,
40,
35,
35,
7,
18,
-9,
25,
33,
25,
-3,
25,
7,
-14,
42,
-10,
16,
-3,
-2,
-28,
20,
-23,
-44,
18,
26,
-16,
-29,
37,
30,
-16,
-64,
-11,
43,
2,
18,
47,
-21,
-52,
15,
28,
31,
-47,
-11,
-17,
-5,
-30,
-21,
32,
-1,
-14,
-18,
1,
6,
16,
-23,
-25,
-19,
24,
-3,
50,
-23,
59,
-5,
-7,
42,
15,
-23,
30,
-16,
-25,
-26,
34,
24,
30,
27,
39,
-9,
95,
1,
22,
29,
41,
10,
12,
-4,
-30,
61,
-23,
7,
16,
-23,
-25,
-1,
-57,
-44,
16,
6,
9,
-8,
-27,
-6,
16,
25,
-11,
19,
-10,
-58,
19,
7,
19,
13,
19,
16,
-13,
-5,
-17,
11,
42,
80,
13,
32,
13,
-36,
29,
29,
-7,
-24,
33,
-8,
-21,
9,
87,
35,
-21,
-65,
-13,
20,
-12,
5,
-25,
-24,
54,
38,
46,
9,
51,
-13,
-57,
8,
-24,
-40,
4,
37,
-55,
3,
-24,
6,
-36,
-62,
17,
4,
-24,
-66,
21,
28,
-8,
-40,
53,
-31,
26,
17,
-24,
24,
68,
-3,
30,
-3,
0,
1,
34,
-35,
-1,
4,
27,
37,
-7,
13,
-3,
-63,
-29,
88,
9,
-33,
59,
7,
54,
-16,
49,
-99,
-31,
-54,
42,
-17,
14,
24,
-18,
0,
26,
33,
23,
35,
-23,
-21,
-27,
-14,
-20,
15,
7,
-19,
-62,
-41,
6,
55,
78,
-42,
14,
-29,
-73,
-6,
-1,
32,
-18,
-20,
22,
33,
11,
-47,
-26,
5,
-25,
61,
37,
-25,
19,
-8,
41,
47,
3,
10,
-9,
19,
-12,
-65,
19,
20,
-1,
7,
-62,
13,
-18,
-51,
3,
-29,
-12,
-45,
-10,
38,
-2,
-38,
-24,
5,
-53,
18,
31,
-23,
-12,
30,
-2,
-40,
-44,
35,
93,
34,
17,
-56,
-60,
9,
-1,
9,
-24,
41,
-14,
-76,
7,
28,
0
] |
JUSTICE BAKER
delivered the Opinion of the Court.
¶1 S.G.R. appeals the order of the Tenth Judicial District Court, Fergus County, extending his civil commitment to the Montana Mental Health Nursing Care Center (Nursing Care Center) for a period not to exceed one year.
¶2 S.G.R. raises two issues on appeal, which we combine and restate as follows:
Whether the District Court’s order met the statutory requirements for extending commitment under §§ 53-21-127 and -128, MCA.
¶3 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 S.G.R is a seventy-six year old man with a lengthy history of severe alcoholism, mental health issues, and multiple periods of institutionalization. He relies on a wheelchair for mobility. Prior to his initial commitment in 2014, S.G.R. had established a pattern of receiving his Social Security check on the first of each month, staying at a hotel, and drinking until his money ran out. He would then check in to the Community Crisis Center in Billings for the remainder of the month. While at the Community Crisis Center in early 2014, S.G.R. suffered a seizure as a result of alcohol withdrawal and was hospitalized. During his hospitalization, S.G.R. was diagnosed with dementia secondary to chronic alcoholism, which prompted the State to file a petition for involuntary commitment.
¶5 On February 7, 2014, S.G.R. consented to his initial commitment to the Montana State Hospital for a period not to exceed three months. Before the initial commitment expired, the State filed a petition for extension of commitment. On May 9, 2014, S.G.R.’s commitment was extended without objection for a period not to exceed six months. He was transferred to the Nursing Care Center in June 2014. Upon admission to the Nursing Care Center, S.G.R. was diagnosed with depression and alcohol-induced dementia.
¶6 On October 23,2014, Susan Stevens, a psychology specialist at the Nursing Care Center, petitioned the District Court to extend S.G.R.’s commitment based on her opinion that S.G.R. was in need of further evaluation and treatment and that S.G.R. required detention “to prevent injury to [himself] or to others.” The next day, the District Court appointed a “friend” and legal counsel for S.G.R.
¶7 On December 16,2014, the District Court held a contested hearing at which S.G.R. was present and represented by counsel. Witnesses presented testimony that S.G.R. had received inpatient alcohol treatment numerous times over the years in several different states; had been to the Galen Chemical Dependency Unit at least seven times; had been admitted four times to the Montana State Hospital; and was presenting a “consistent pattern” of staying sober for a few months, then starting to drink, isolating himself and quitting his medications, leading to paranoid delusions and significant seizures that recently had nearly killed him. While at the Nursing Care Center, S.G.R. had attempted three times to elope from the facility (leave without permission). On one elopement attempt, S.G.R. tried to take his wheelchair down a significant decline, over an embankment, toward several frog ponds. During the last elopement attempt, S.G.R. rolled his wheelchair into traffic attempting to flag down a ride. Stevens testified that in all three cases, especially the last incident, S.G.R. “presented himself in a very dangerous situation.” Steve Cummings, another member of the Nursing Care Center staff, testified that S.G.R. was “pretty aggressive, very verbally abusive,” when staff attempted to bring him back to the facility on the most recent occasion, and that they had to summon assistance from law enforcement.
¶8 Stevens testified that S.G.R. has “extremely poor” insight into his alcoholism, denying it until the day of the hearing, and has no insight into his dementia “and will deny it.” With his dementia, Stevens advised the court, S.G.R. lacked ability to understand his circumstances or needs, and had a disregard for his safety. Stevens concluded that S.G.R.
presents as a danger to himself because of his dementia which is [ex]acerbated by his alcoholism, which he shows a consistent pattern of relapsing and drinking the alcohol which then aggravates his mental health symptoms to the point that either a) he nearly dies or [b)] he becomes paranoid and suicidal. I also believe he does not have the means to care for himself outside of a structured environment at this time.
¶9 Stevens’s written mental health assessment further substantiated her concerns. It concluded that S.G.R. presented a danger to himself because of his lack of insight and judgment into his illness and his continued belief that he can live independently, without assistance with his illness, “despite nearly dying and being homeless.” She opined that S.G.R. was not amenable to placement in a group home or release to the community “due to his age and history of leaving placements to drink, which exacerbates his mental illness. ... [and] his pervasive pattern of non-compliance to medical treatment.”
¶10 S.G.R. testified, describing himself as an “old cowboy” who does not like being kept in “captivity.” He stated that if he was released, he would maintain his sobriety by attending Alcoholics Anonymous meetings and by continuing to take his prescribed medications. S.G.R. claimed that he had money in a bank account and that he owned a home in Wyoming, which he could live in if released.
¶11 Cummings testified that S.G.R.’s placement options were limited because of the combination of his mental illness and his alcoholism. Cummings expressed concern that S.G.R. was unable to maintain sobriety, observing that during his stay at the State Hospital he “managed to get away from them and caught a ride to a bar and had drinks there.” Based on his conversations with S.G.R.’s family, Cummings testified that it was “not an option” for S.G.R. to return to the family home in Wyoming. Although Cummings committed to exploring admission into a veterans’ home or assisted living facility, he believed it would be “very difficult” as the veterans’ home tended to “refuse most people” with a mental health history, and an assisted living facility would not be suitable unless S.G.R. maintained sobriety.
¶12 At the conclusion of the hearing, the District Court granted the petition because S.G.R. “does suffer from a mental disease or defect, that being alcohol induced dementia, which leads to him being a danger to himself.” The court cited S.G.R.’s elopement risk and his inability to understand his own conditions as risks to his safety, particularly in light of his history of seizures and the risk of his “get[ting] back on alcohol.” On January 12, 2015, the District Court issued its Order for Recommitment requiring that S.G.R. be committed to the Nursing Care Center for a period not to exceed one year from December 16, 2014, and directing that the staff begin looking for alternative placement for him. S.G.R. appeals.
STANDARDS OF REVIEW
¶13 We review commitment orders to determine whether a district court’s findings of fact are clearly erroneous and its conclusions of law are correct. In re S.M., 2014 MT 309, ¶ 13, 377 Mont. 133, 339 P.3d 23. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence or if, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made. In re L.K.S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. Whether a district court’s findings of fact meet statutory requirements is a question of law that we review for correctness. In re L.L.A., 2011 MT 285, ¶ 6, 362 Mont. 464, 267 P.3d 1.
DISCUSSION
¶14 Whether the District Court’s order met the statutory requirements for extending commitment under §§ 53-21-127 and -128, MCA.
¶15 Before a period of civil commitment expires, the “professional person in charge of the patient at the place of commitment may petition the district court in the county where the patient is committed for extension of the commitment period.” Section 53-21-128(l)(a), MCA. “If the court finds that the patient continues to suffer from a mental disorder and to require commitment, the court shall order commitment as set forth in § 53-21-127.” Section 53-21-128(l)(d), MCA. Section 53-21-127(7), MCA, provides that commitment is justified so long as any one of the criteria listed under § 53-21-126(1), MCA, is satisfied. The criteria are as follows:
(a) whether the respondent, because of a mental disorder, is substantially unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety;
(b) whether the respondent has recently, because of a mental disorder and through an act or an omission, caused self-injury or injury to others;
(c) whether, because of a mental disorder, there is an imminent threat of injury to the respondent or to others because of the respondent’s acts or omissions; and
(d) whether the respondent’s mental disorder, as demonstrated by the respondent’s recent acts or omissions, will, if untreated, predictably result in deterioration of the respondent’s mental condition to the point at which the respondent will become a danger to self or to others or will be unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety.
Section 53-21-126(1), MCA. Section 53-21-127(8)(a), MCA, requires the court to make certain findings of fact, including “a detailed statement of the facts upon which the court found the respondent to be suffering from a mental disorder and requiring commitment.”
¶16 In its Order for Recommitment, the District Court did not specify which of the § 53-21-126(1), MCA, criteria on which it relied to conclude that S.G.R. continued to require commitment. The court did, however, review procedural history and recount specific portions of testimony presented at the December hearing. Noting that they were “[biased on testimony given at the hearing and the Mental Health Assessment filed by Sue Stevens,” the court then set forth the following five findings of fact: 1) “[S.G.R.] continues to suffer from the mental disorder of Dementia with behavioral disturbances, Alzheimer’s disease, Drug Induced Persisting Dementia, Alcohol Dependence and Insomnia”; 2) “Currently, the most appropriate alternative and least restrictive placement for [S.G.R.] is the [Nursing Care Center], The Care Plan Team will start looking for other alternative placements”; 3) “The treatment care plan as filed with this court appears to be appropriate for [S.G.R.] and should be continued with regular review”; 4) It is necessary for the [Nursing Care Center] to be given the authority to administer all medications deemed necessary and appropriate for [S.G.R.] and to administer those medications involuntarily, if necessary, as he is unable to appreciate the necessity for a proper medication regimen to control his mental illness”; and 5) “Fergus County shall not be held responsible for any costs incurred in this matter. [S.G.R.] is a resident of Yellowstone County, which is the county responsible for any costs incurred in this matter as provided by MCA §§ 53-21-128(l)(c), 53-21-132, and/or 53-21-113.”
¶17 S.G.R. argues that the District Court’s findings in its Order for Recommitment were insufficient to satisfy the statutory requirements set forth above. The State counters that “[a]lthough that section of the order does not contain detailed factual findings about S.G.R., the section of the order where the court summarized [hearing] testimony should also be viewed as findings.” Additionally, the State suggests that this Court rely on the District Court’s oral findings to evaluate whether the requirements under § 53-21-127(8)(a), MCA, were met. Specifically, the State proposes that we rely on the District Court’s statement at the conclusion of the hearing, “Well the Court will find that [S.G.R.] does suffer from a mental disease or defect, that being alcohol induced dementia, which leads to him being a danger to himself.” Further, the State proposes that we rely on the District Court’s express comment that S.G.R.’s delusions, elopement risk, and inability to understand his own conditions “put him at risk.”
¶18 In L.L.A., L.L.A. challenged the sufficiency of a district court’s factual findings supporting her involuntary commitment. L.L.A., ¶ 6. In that case, the district court issued seven findings of fact supporting its order of commitment that were “derived almost exclusively from the language of § 53-21-126, MCA.” L.L.A., ¶ 13. We reversed the order of commitment, concluding that the court’s findings were insufficient because they lacked any references to L.L.A’s actual behavior to demonstrate why she required commitment. L.L.A., ¶ 13.
¶19 Conversely, in In re M.P.-L,, 2015 MT 338, 381 Mont. 496, 362 P.3d 627, we upheld the involuntary commitment order in the face of M.P.-L.’s challenge to the sufficiency of the court’s factual findings. In that case, the district court issued four findings of fact supporting its order of commitment. M.P.-L., ¶ 18. We concluded:
The District Court included information in the findings reflecting M.P.-L.’s circumstances leading to the court’s conclusions under § 53-21-126(1), MCA. The evidence included conclusions from testimony by [the professional who conducted an evaluation of M.P.-L.] that M.P.-L.: suffered from mental illness; made three suicide threats; and continued to be a threat to herself.
M.P.-L., ¶ 19. We noted that although the district court’s written findings are “bare-boned,” the court provided sufficient reasoning in its findings to justify commitment and satisfy the requirements under § 53-21-127(8), MCA. M.P.-L., ¶ 20.
¶20 We have applied the doctrine of implied findings in involuntary commitment cases, “consulting] hearing transcripts in addition to the written findings” where the latter are claimed to be insufficient to support commitment. S.M., ¶ 28. The doctrine of implied findings “holds that where ‘findings are general in terms, any findings not specifically made, but necessary to the determination, are deemed to have been implied, if supported by the evidence.’ ” S.M., ¶ 28 (quoting In re Mental Health of S. C., 2000 MT 370, ¶ 15, 303 Mont. 444, 15 P.3d 861). In S.M., we invoked the doctrine and held that a district court’s written order of commitment must be “minimally sufficient” and at least adequate to apprise the staff at the receiving facility, treatment professionals, and law enforcement of the particular condition and behaviors that gave rise to the need for commitment. S.M., ¶ 29.
¶21 There is not a substantive distinction between the order entered in this case and the commitment orders we affirmed in M.P.-L. and S.M. Although we noted in S.M. that the District Court “could have been more specific and listed more of the facts,” we relied on the record, the court’s oral and written findings, and the doctrine of implied findings to conclude that the order was “minimally sufficient” and properly based on the respondent’s “individual circumstances.” S.M., ¶ 22. Similarly, here, although the District Court’s written findings are spartan, they were stated in terms, like in M.P.-L., that recounted specific witness testimony from the hearing. M.P.-L., ¶ 18. Here, in fact, the court expressly noted that its findings were “based on” that evidence. The record establishes that the court’s written, oral, and implied findings properly were based on S.G.R.’s “individual circumstances.” S.M., ¶ 22.
¶22 The order that we reversed in L.L.A. was insufficient because it “contain[ed] no indication of the facts upon which [the court] found that” L.L. A. was substantially unable to protect her life and safety, and no information specifically reflecting L.L.A’s circumstances or particular behaviors that supported the district court’s conclusions. L.L.A., ¶¶ 11,13. Here, in contrast, the order identifies the testimony and evidence on which the court premised its findings. The evidence and testimony support the court’s conclusion that S.G.R.’s mental illness required extension of his commitment because he was a “danger to himself’ and was “unable to appreciate the necessity for a proper medication regimen to control his mental illness.”
¶23 Although the District Court’s recommitment order is not a model, it does not suffer the same statutory defect as in L.L.A. because the order reflects the particular circumstances and behaviors that supported the court’s conclusions, and because the court provided sufficient reasoning to justify its decision. The District Court’s oral findings — which are appropriate for consideration under our precedent, S.M., ¶ 27 — substantiate its determination that the standards for recommitment had been satisfied. We conclude that the District Court’s written order, when considered as a whole and together with the court’s oral findings, was “minimally sufficient” to meet the involuntary commitment statute’s requirement for a “detailed statement” on which its conclusions were based, and that it was supported by substantial evidence. S.M., ¶ 22.
¶24 S.G.R. also faults the District Court for failing to identify which subsection of the applicable statute authorized the commitment. Based on the court’s oral statements, S.G.R. “assum[es]” that he was committed pursuant to § 53-21-126(1)(d), MCA, and argues that his commitment to the Nursing Care Center is not legally or factually supportable under that subsection. S.G.R. argues that because the court failed to tie its findings to any other subsection of the statute, it appears to have premised commitment on § 53-21-126(l)(d), MCA, which required the court to commit him to a community placement instead of to the Nursing Care Center. Section 53-21-127(7), MCA. The District Court’s oral finding that S.G.R.’s dementia and inability to understand his own condition “put him at risk” of danger does reflect the language of subsection (1)(d). But, although its findings about the reason for commitment were “general in terms,” they clearly imply that S.G.R. was recommitted because he was “substantially unable to provide for his own basic needs of food, clothing, shelter, health, or safety.” Section 53-21-126(l)(a), MCA. The District Court recognized that S.G.R. could not live independently, lacked appreciation for his condition, and was unable to keep himself safe. As discussed above, the record contains substantial evidence to support the District Court’s conclusions in this regard.
CONCLUSION
¶25 For the foregoing reasons, we hold that the District Court’s written order was minimally sufficient and supported by substantial evidence. Its January 12, 2015 Order for Recommitment is affirmed.
CHIEF JUSTICE McGRATH, JUSTICES SHEA, WHEAT and COTTER concur.
JUSTICE McKINNON, dissenting.
¶26 The order extending S.G.R.’s commitment was not “minimally sufficient,” as this Court holds today, and his involuntary commitment must be reversed. The District Court’s findings failed to detail the factual basis of its determination that Respondent continued to suffer from a mental disorder and required continued commitment. The District Court’s findings, therefore, failed to satisfy the statutory criteria outlined in §§ 53-21-127 and -128, MCA. The court’s summarization of the testimony presented and restatement of Respondent’s diagnosis do not meet the minimum “bare-boned” findings found sufficient in M.P.-L. and S.M. and do not constitute strict compliance with the statutory mandate. Finally, this Court utilizes the doctrine of implied findings inappropriately to determine a conclusion of law: “that the standards for recommitment had been satisfied.” Opinion, ¶ 23. In fact, the District Court failed to indicate pursuant to which statutory subsection it found S.G.R. required recommitment—§ 53-21-126(1)(a), (b), (c), or (d).
¶27 The situation in M.P.-L., is distinguishable from S.G.R.’s. There, the district court issued two orders. This Court determined that the first order was “deficient and failed to comply with § 53-21-127(8)(a), MCA,” because it did not include a detailed statement of facts. M.P.-L., ¶¶ 10-11. However, the district court issued an additional order, which, when viewed together with the first order, “provided proper facts and information the court used to determine that M.P.-L. was suffering a mental disorder requiring commitment.” M.P.-L., ¶ 22. More importantly, the statutory subsection upon which the court relied to find M.P.-L. required commitment was set forth in the court’s order. Particularly, the court’s factual findings that M.P.-L. attempted suicide on three occasions established that M.P.-L. presented an “imminent threat of injury to [herself],” under § 53-21-126(l)(c), MCA. M.P.-L., ¶ 22. We concluded this was minimally sufficient and went on to “reiterate that the statutory requirements of an involuntary commitment must be strictly adhered to by the district courts, including the requirement of detailed findings under § 53-21-127(8)(a), MCA, in order to justify appropriate decisions and to follow proper procedure.” M.P.-L., ¶ 24.
¶28 S.M., is even less applicable to the case at bar than M.P. -L. In that case, S.M. did not primarily challenge the sufficiency of the district court’s factual findings, as the Court misstates. Opinion, ¶ 20. Instead, “S.M. argue[d] there was insufficient evidence to support the District Court’s determination that she was substantially unable to care for her own health and safety” or, alternatively, that the “District Court failed to make a ‘detailed statement of facts’ supporting this determination.” S.M., ¶ 19. This distinction is important and led to us utilizing the doctrine of implied findings, which was appropriate for our analysis of her insufficient evidence challenge, but inappropriate for our analysis of S.G.R.’s insufficient order challenge. In S.M., we also discussed whether the findings of fact were sufficient; however, the challenge was focused on whether evidence in the record supported the district court’s conclusion that she required commitment under § 53-21-126(l)(d), MCA. S.M., ¶ 19.
¶29 The findings here do not specify what the court relied on to find S.G.R. suffered from a mental disorder or what facts, statute, or subsection the court considered and utilized to determine his continued commitment was necessary. This failure confused the parties’ arguments on appeal. S.G.R., for the sake of his arguments on appeal, assumes the District Court extended his commitment under subsection (d) of § 53-21-126(1), MCA, while the State assumes the District Court relied on subsection (c). This Court inexplicably determines that “although its findings about the reason for commitment were ‘general in terms,’ they clearly imply that S.G.R. was recommitted because he was ‘substantially unable to provide for his own basic needs of food, clothing, shelter, health, or safety’ ” under subsection (a). Opinion, ¶ 24. This confusion demonstrates perfectly what the District Court failed to accomplish in its order. Contrary to being “clear,” it is completely unclear which statutory subsection of § 53-21-126(1), MCA, the District Court relied upon in recommitting S.G.R. against his will. The District Court cannot rely on evidence in the record as a shortcut method to fill in gaps in its order that are required by statute. In light of the order’s deficiencies, the statutory requirements authorizing S.G.R.’s second extension of commitment were not satisfied and must be reversed.
¶30 S.G.R.’s second issue raised on appeal asks whether the District Court erred in extending his commitment to the Nursing Care Center instead of a community facility. He contends that the District Court was prohibited by statute from extending his commitment to the Nursing Care Center. Under § 53-21-127(7), MCA, “if the court relies solely upon the criterion provided in 53-21-126(l)(d)” (that if untreated, respondent “will become a danger to self or to others or will be unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety”), “the court may require commitment only to a community facility or program or an appropriate course of treatment ... and may not require commitment at the state hospital, a behavioral health inpatient facility, or the Montana mental health nursing care center.” Section 53-21-127(7), MCA. Because we do not know which statutory subsection of § 53-21-126(1), MCA, the District Court relied upon to extend S.G.R.’s commitment — it could be either subsection (a), (c), or (d) according to the parties and this Court — we cannot know whether § 53-21-127(7), MCA, applies or whether S.G.R.’s second argument on appeal has merit. Despite the Court’s efforts to assemble an order upon the basis of implied findings, a statement by the District Court during trial that S. G.R.’s mental condition “put him at risk” does not equate to a statutory determination being made by the trial court regarding the necessity of commitment. That S.G.R.’s mental condition “put him at risk” could have been logically construed as support for him being “substantially unable to provide for his own basic needs of food, clothing, shelter, health, or safety” under § 53-21-126(l)(a), MCA; an “imminent threat of injury to [himself]” under § 53-21-126(l)(c), MCA; or even “predictably result in deterioration of [his] mental condition to the point at which [he] will become a danger to self,” under § 53-21-126(l)(d), MCA. It does not, however, “clearly imply” any of these options.
¶31 I believe the District Court’s order extending S.G.R.’s commitment is insufficient and must be reversed. However, the most concerning error the Court makes is in failing to appreciate the role an appellate court has to review determinations of the trial court. When those determinations have not been made in the first instance, we cannot string a web of implied findings and baldly state that it is “clear” upon which statutory subsection the trial court relied in fashioning its order of commitment. We do more harm to litigants and our precedent through such faulty analysis and manipulation of the record than had we simply reversed an individual’s order of commitment for its insufficiency, despite that individual’s need for assistance.
JUSTICE RICE joins in the dissenting Opinion of JUSTICE McKinnon.
S.G.R. does not raise, and therefore I do not address, whether the time of Respondent’s second extension of commitment, of up to one year, violates the time limitations imposed by § 53-21-128, MCA. I note, however, that § 53-21-128(1) and (2), MCA, appear to place a time limitation of six months on any order extending commitment, while § 53-21-128(3), MCA, appears to prohibit further extensions from affecting a patient’s custody for more than one year. It does not appear that, under any construction of § 53-21-128, MCA, a second order for recommitment could be for as long as one year. However, the relationships between the various time limitations found in the subsections of § 53-21-128, MCA, have not been raised by the parties or addressed by the Court.
|
[
32,
15,
-34,
63,
-14,
-44,
50,
20,
-8,
10,
28,
-8,
49,
-47,
31,
-33,
-40,
-21,
-28,
35,
34,
46,
2,
23,
-23,
26,
0,
35,
15,
-21,
66,
-41,
0,
-32,
-30,
21,
18,
-34,
33,
61,
20,
-23,
-9,
5,
-65,
4,
-2,
-9,
-4,
-5,
15,
16,
-2,
35,
78,
33,
12,
9,
-60,
24,
-50,
5,
-7,
-31,
37,
74,
30,
13,
-30,
-54,
6,
-36,
-19,
-2,
15,
-17,
15,
13,
-12,
-16,
-19,
-13,
-48,
-37,
9,
-37,
30,
9,
25,
-51,
-25,
-23,
27,
-12,
-50,
37,
-23,
-46,
75,
-14,
-43,
-16,
22,
56,
7,
10,
27,
7,
17,
2,
-12,
-37,
-10,
-10,
-58,
24,
-22,
26,
-32,
31,
-24,
-2,
24,
-29,
11,
-22,
61,
0,
17,
-7,
-5,
-26,
54,
-15,
-70,
0,
2,
-28,
36,
-1,
-75,
30,
43,
-22,
48,
6,
-18,
-1,
0,
-9,
55,
50,
28,
15,
-7,
-15,
-24,
25,
-41,
31,
43,
-59,
-15,
28,
16,
10,
13,
46,
-28,
-5,
15,
9,
-14,
-6,
-1,
69,
-13,
14,
-4,
-33,
-44,
6,
50,
-4,
17,
47,
30,
-22,
13,
-24,
-87,
-13,
9,
14,
39,
48,
1,
15,
-35,
30,
-63,
62,
28,
50,
32,
-20,
-12,
-4,
47,
-33,
2,
18,
-40,
-25,
0,
-68,
-31,
-13,
-30,
13,
-12,
27,
-13,
22,
-50,
-8,
68,
-6,
-13,
-62,
11,
0,
7,
64,
-20,
36,
29,
7,
31,
15,
-5,
6,
9,
-27,
-19,
23,
-61,
-21,
-11,
-48,
-11,
-1,
2,
18,
-21,
-39,
20,
-81,
-24,
-50,
16,
-12,
3,
8,
42,
19,
-6,
-20,
61,
-8,
-20,
7,
45,
-53,
-1,
30,
3,
-24,
-11,
31,
30,
-13,
50,
24,
-42,
-26,
-29,
9,
-53,
-4,
41,
-61,
7,
-25,
56,
-52,
-67,
-39,
-69,
8,
19,
-22,
-8,
57,
1,
5,
-2,
60,
26,
0,
5,
8,
-21,
-10,
11,
-59,
-4,
-3,
3,
-15,
9,
1,
-36,
8,
-38,
-35,
-38,
-9,
-48,
30,
-50,
21,
-25,
62,
9,
18,
-35,
-12,
-18,
14,
30,
10,
-9,
-30,
-44,
49,
18,
3,
-25,
-14,
-31,
28,
5,
-25,
10,
12,
-56,
-41,
12,
-6,
-6,
-57,
7,
-5,
-26,
-23,
27,
-19,
24,
6,
-28,
-12,
-4,
-30,
-8,
-27,
24,
-12,
0,
-4,
8,
36,
-9,
-21,
-11,
13,
-74,
0,
23,
0,
12,
-17,
-39,
16,
-17,
46,
4,
7,
0,
-50,
12,
8,
23,
-12,
26,
-20,
-21,
-10,
20,
19,
-17,
14,
5,
46,
25,
-20,
-11,
-1,
-32,
-30,
5,
41,
-3,
3,
9,
1,
-38,
-8,
-26,
43,
-12,
-33,
-22,
43,
-3,
-33,
-28,
-26,
30,
-3,
3,
14,
43,
-13,
40,
33,
12,
7,
81,
-14,
2,
29,
19,
-3,
-22,
48,
-14,
22,
-61,
-22,
-18,
-22,
-17,
26,
39,
4,
-57,
4,
6,
13,
-76,
-2,
49,
67,
43,
0,
-2,
23,
-14,
-2,
-22,
-24,
-48,
38,
-5,
45,
-46,
-24,
-50,
-12,
21,
-13,
-12,
13,
-10,
35,
-15,
17,
-59,
5,
-29,
-1,
-10,
15,
25,
-79,
31,
-3,
14,
-27,
7,
49,
8,
26,
-4,
-69,
43,
-79,
5,
29,
11,
44,
26,
-12,
-16,
0,
-40,
-2,
24,
-56,
19,
-28,
25,
-23,
2,
20,
8,
41,
8,
-63,
29,
28,
-16,
-15,
21,
5,
20,
46,
41,
37,
26,
-14,
0,
10,
38,
-27,
-20,
-3,
37,
9,
20,
5,
-11,
7,
-50,
14,
-36,
-24,
9,
-5,
16,
52,
-15,
2,
28,
-53,
25,
-51,
-23,
-46,
59,
11,
55,
-29,
-61,
16,
12,
-41,
-14,
1,
7,
-5,
8,
5,
-28,
9,
15,
1,
-73,
-15,
4,
4,
44,
-14,
32,
0,
69,
-28,
60,
-15,
-53,
13,
6,
-23,
-71,
22,
8,
-24,
-10,
27,
-61,
10,
18,
-41,
-17,
0,
-65,
-16,
-11,
3,
15,
-22,
58,
-41,
-2,
14,
14,
-22,
-9,
19,
14,
79,
9,
39,
0,
20,
72,
-10,
-4,
-25,
38,
100,
-52,
-40,
-14,
-9,
18,
-24,
33,
-27,
-5,
47,
-8,
7,
-26,
47,
19,
-42,
-34,
23,
67,
30,
-56,
30,
45,
-29,
-1,
-34,
66,
-35,
-76,
-69,
7,
-27,
32,
-2,
14,
19,
17,
28,
-12,
-12,
23,
28,
22,
24,
9,
46,
-16,
1,
-30,
10,
-29,
-32,
-9,
6,
-65,
-28,
-46,
1,
17,
10,
12,
11,
-8,
-21,
-79,
-33,
-5,
9,
-80,
11,
-102,
14,
34,
-60,
-44,
11,
-22,
-23,
-45,
-8,
-49,
36,
-21,
-17,
-14,
42,
47,
-6,
19,
23,
21,
64,
-29,
35,
-9,
-44,
-48,
-1,
69,
2,
-12,
26,
-4,
-4,
23,
1,
3,
7,
34,
53,
-4,
55,
12,
-33,
41,
22,
0,
11,
46,
40,
3,
7,
-46,
-8,
40,
-22,
-20,
-36,
22,
4,
11,
-33,
-28,
-40,
30,
-18,
1,
1,
-68,
-1,
34,
-7,
69,
21,
9,
-3,
20,
1,
24,
18,
3,
11,
-11,
32,
7,
6,
13,
12,
-9,
30,
64,
-6,
-13,
-60,
-9,
2,
25,
-7,
37,
-27,
-44,
-19,
9,
-57,
-2,
48,
25,
2,
-2,
4,
-4,
4,
17,
-6,
21,
28,
-10,
21,
6,
0,
10,
13,
10,
-25,
42,
-34,
62,
32,
36,
7,
-55,
18,
-4,
-14,
-29,
-13,
65,
31,
10,
53,
13,
19,
0,
-8,
12,
-38,
0,
-2,
-29,
-23,
20,
55,
-14,
-10,
43,
-20,
-37,
-83,
-20,
-1,
15,
12,
16,
6,
33,
21,
-56,
-37,
-30,
19,
-27,
22,
-27,
13,
-63,
16,
-29,
-29,
-13,
7,
-15,
-43,
16,
37,
-6,
33,
19,
-1,
-28,
23,
37,
33,
-6,
-13,
-47,
-8,
38,
-12,
-51,
39,
27,
33,
0,
16,
-36,
-19,
-72,
36,
18,
29,
-16,
-16,
34,
20,
13,
31,
-4,
-40,
32,
13,
-73,
37,
7,
39,
43,
-63,
7,
-9,
-14,
25,
10,
16,
10,
-6,
16,
-43,
-5,
44,
-54,
-2,
-17,
30,
14,
21,
0,
-26,
-16,
-25,
-18,
2,
-48,
23,
14,
29,
4,
4,
37,
28,
-63,
-50,
-25,
-17,
-41,
25,
12,
17,
-61,
-4,
70,
8,
-17,
28,
70,
-6,
-42,
-50,
-3,
-23,
19,
-36,
-49,
38,
6,
-67,
-10,
-11,
21,
-23,
74,
-21,
17,
-89,
28,
-38,
1,
-23,
-19,
53,
-30,
15,
43,
14
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 The Department of Public Health and Human Services, Human Resources Division (the Department), appeals from an order entered by the First Judicial District Court, Lewis and Clark County, reversing the Board of Personnel Appeals and reentering the Hearing Officer’s decision that awarded damages to the Plaintiffs. We reverse.
¶2 The Department raises five issues on appeal and the Plaintiffs raise two issues on cross-appeal, but we address only the following issue:
Did the hearing officer and the District Court err in concluding the Broadband Pay Plan factors, set forth in § 2-18-301(4), MCA, constitute stand-alone requirements that preempt the collective bargaining process ?
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Plaintiffs are Compliance Specialists within the Child Support Enforcement Division of the Department. They constitute the majority of Compliance Specialists, Pay Band 6, employed by the State of Montana, and belong to MEA-MFT Local 4573, a bargaining unit of approximately 500 state employees. The collective bargaining agreements to which MEA-MFT Local 4573 and the State are parties have two-year terms, beginning on July 1st. of odd years following the Legislative session, and ending two years later, on June 30th.
¶4 MEA-MFT Local 4573 negotiated collective bargaining agreements with the State that covered the 2007-2009,2009-2011, and 2011-2013 contract years. In May 2011, while MEA-MFT Local 4573 was negotiating for the 2011-2013 contract period, Plaintiffs filed a complaint against the Department alleging Plaintiffs’ pay was not “internally equitable” in comparison with Pay Band 6 Compliance Specialists in other State agencies, in violation of § 2-18-301(4), MCA. Plaintiffs did not contend the collective bargaining agreements were otherwise invalid or unenforceable.
¶5 The District Court initially certified as a class those union and non-supervisory employees of the Department who are or were Pay Band 6 Compliance Specialists. However, the District Court subsequently dismissed the complaint without prejudice on the ground that Plaintiffs had failed to exhaust their administrative remedies by pursuing a grievance before the Board of Personnel Appeals (BOPA).
¶6 In July 2012, Plaintiffs filed a grievance with BOPA. BOPA assigned the matter to a Hearing Officer, who conducted a hearing in May 2013 and issued his Findings of Fact, Conclusions of Law, and Recommended Order in November 2013. The Recommended Order held Plaintiffs were aggrieved by receiving pay that was not internally equitable with other Pay Band 6 Compliance Specialists for the years 2007-2013, and awarded damages. Both parties submitted objections to the Recommended Order to BOPA. In June 2014, BOPA issued its Final Order rejecting the Recommended Order and dismissing the grievance. BOPA held that Plaintiffs had no independent right to internally equitable pay with other Pay Band 6 Compliance Specialists, but, instead, internal equity was a factor to be considered during the collective bargaining process. BOPA reasoned that because Plaintiffs had entered into valid collective bargaining agreements for each year covered by the Hearing Officer’s Recommended Order, a disparity in pay between Plaintiffs and other Pay Band 6 Compliance Specialists provided no basis for an award of damages.
¶7 Plaintiffs appealed to the District Court for judicial review of BOPA’s Final Order. The District Court vacated and reversed BOPA’s Final Order, agreeing with the Hearing Officer’s conclusions regarding Plaintiffs’ right to pay that is internally equitable with other Pay Band 6 Compliance Specialists. The Department appeals.
STANDARD OF REVIEW
¶8 We review an order from a district court acting in an appellate capacity to determine whether the district court reached the correct conclusions under the appropriate standards of review. In re Transfer Terr. From Poplar Elem. Sch. Dist. No. 9 to Froid Elem. Sch. Dist. No. 65, 2015 MT 278, ¶ 10, 381 Mont. 145, 364 P.3d 1222. An agency’s conclusions of law will be upheld if the agency’s interpretation of law is correct. State Pers. Div. v. Dep’t of Public Health and Human Servs., 2002 MT 46, ¶ 20, 308 Mont. 365, 43 P.3d 305.
DISCUSSION
¶9 Did the hearing officer and the District Court err in concluding the BroadbandPay Plan factors, set forth in §2-18-301(4), MCA, constitute stand-alone requirements that preempt the collective bargaining process?
¶10 We construe a statute by “reading and interpreting the statute as a whole, without isolating specific terms from the context in which they are used by the Legislature.” MC, Inc. v. Cascade City-County Bd. of Health, 2015 MT 52, ¶ 14, 378 Mont. 267, 343 P.3d 1208 (citation and internal quotations omitted). “Statutory construction is a holistic endeavor and must account for the statute’s text, language, structure and object.” MC, ¶ 14 (citation and internal quotations omitted). “[T]his Court presumes the Legislature would not pass meaningless legislation and we must, as much as possible, harmonize statutes relating to the same subject giving effect to each.” Wild v. Fregein Constr., 2003 MT 115, ¶ 20, 315 Mont. 425, 68 P.3d 855. We must also “read and construe each statute as a whole so as to avoid an absurd result and to give effect to the purpose of the statute.” MC, ¶ 14 (citation and internal quotations omitted).
¶11 Section 2-18-301(4), MCA, provides “[t]he department shall administer the pay program established by the legislature on the basis of competency, internal equity, and competitiveness to the external labor market when fiscally able.” Based on this statute, Plaintiffs argue they have a free standing right, independent of their collective bargaining agreements, to pay that is internally equitable. The Department argues that internal equity is a goal achieved through collective bargaining, not an independent actionable right that preempts the function of collective bargaining conducted by each agency and its employees to negotiate wages. We agree with the Department.
¶ 12 The primary error in the analysis employed by the Hearing Officer and the District Court is the interpretation of “internal equity” in isolation from the context in which the term is used by the Legislature, running afoul of a basic principle of statutory construction. MC, ¶ 14. Regardless of what the phrase “internal equity” means, the conclusion that it serves as a stand-alone right ignores the rest of the statute’s language. The preceding words “shall administer the pay program ... on the basis of” mean that competency, internal equity, and competitiveness are the factors to be considered in administering the pay program. Merriam-Webster’s Dictionary 102 (11th ed. 2003) (“Basis” means “something on which something else is established.”). However, none of the factors are elevated above the others, thus indicating that competency, internal equity, and competiveness are factors to be weighed rather than comprising individual requirements. See Fellows v. Dep’t of Admin., 2011 MT 88, ¶ 16, 360 Mont. 167, 252 P.3d 196 (affirming District Court’s conclusion that § 2-18-301(4), MCA, did not mandate equal pay but required that pay be set on the basis of competency, internal equity, and competitiveness.). This is supported by the subsequent language “when fiscally able,” which allows the Legislature to consider financial constraints when administering the pay program.
¶13 The reason for the statute’s flexible construct becomes obvious when the statute is read in conjunction with the other Broadband Pay statutes and the Collective Bargaining statutes. The Broadband Pay statutes contemplate the role that collective bargaining is to play in setting pay. See § 2-18-301(3), MCA (“Total funds required to implement the pay increases... may not be increased through collective bargaining over the amount appropriated by the legislature.”); § 2-18-301(7), MCA (“The department may promulgate rules not inconsistent with the ... collective bargaining statutes ....”); § 2-18-303(4)(b), MCA (“Methods of administration consistent with the purpose of this part... may be provided for in collective bargaining agreements.”). The Collective Bargaining statutes mandate that the State and the union representative have a duty to bargain collectively and in good faith. Section 39-31-305(1), MCA; see also § 39-31-101, MCA (“[I]t is the policy of the state of Montana to encourage the practice and procedure of collective bargaining to arrive at friendly adjustment of all disputes between public employers and their employees.”). This duty expressly requires that the agency and union representative negotiate wages, hours, and fringe benefits. Section 39-31-305(2), MCA. In other words, an agency cannot set the pay of its employees without collective bargaining. See Fellows, ¶ 15.
¶14 Given that the Legislature has provided “[a]n agreement between the public employer and a labor organization must be valid and enforced under its terms when entered into in accordance with the provisions of this chapter...,” § 39-31-306(3), MCA, it would be absurd, MC, ¶ 14, to conclude the Legislature had intended the mandatory collective bargaining process to be undone or circumscribed because there was not equal or near equal pay across all agencies — a point to which we have previously alluded. See Fellows, ¶ 15 (“[I]t is not clear from the record whether the change in pay sought by [the plaintiffs] would comply with their collective bargaining agreement.”).
¶15 Rather, the Legislature intended internal equity to be a primary bargaining point between those agencies and employees that are required to collectively bargain for wages, which “harmonize[s]” the Broadband Pay statutes with the Collective Bargaining statutes. Wild, ¶ 20. Thus, “internal equity” is a key factor in determining whether the agency bargained in good faith. This reading gives substance both to the Legislature’s intent that the pay program be administered “on the basis of competency, internal equity, and competitiveness ...” § 2-18-301(4), MCA, and that “[a]n agreement between the public employer and a labor organization must be valid and enforced under its terms ...,” § 39-31-306(3), MCA.
¶16 This understanding is amplified by recognition of the remedies that have been provided for union member employees dissatisfied with the collective bargaining process. Union members may file an unfair labor practice complaint against the State for failure to bargain in good faith. Section 39-31-401, MCA. Similarly, they can file an unfair labor practice complaint against the union if the union breaches its duty to bargain in good faith on the members’ behalf. Section 39-31-402, MCA. Union members can also refuse to make concessions, request mediation, or refuse to ratify the collective bargaining agreement. Sections 39-31-305(2), 307, MCA.
¶17 In sum, the statutory factor of “internal equity” is not a standalone right that may be pursued independently and in preemption of the work of the collective bargaining process. Therefore, we vacate the District Court’s Order and reinstate BOPA’s Final Order.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, COTTER and McKINNON concur.
Although this case implicates prior versions of the statute — 2007,2009,2011, and 2013 — we conduct our analysis under the current version because the minimal changes made to the statute from year to year have no effect on the analysis.
|
[
-14,
-57,
-83,
13,
63,
-2,
7,
-45,
-26,
42,
-19,
73,
68,
-20,
-20,
-32,
-27,
32,
62,
-11,
-15,
-37,
11,
26,
-17,
25,
2,
-26,
-1,
-10,
-28,
-34,
-20,
-39,
-9,
-53,
7,
68,
-11,
-38,
36,
18,
-46,
-31,
-59,
6,
27,
58,
51,
38,
-2,
-16,
-40,
23,
51,
22,
3,
-4,
-67,
22,
-42,
22,
1,
-17,
25,
-41,
16,
7,
-41,
-25,
-3,
45,
-53,
-33,
19,
7,
-25,
-32,
-45,
17,
0,
30,
-55,
-31,
30,
9,
-29,
47,
15,
39,
-21,
1,
7,
10,
11,
13,
28,
-28,
3,
15,
-49,
7,
-30,
41,
-3,
-3,
6,
8,
2,
28,
-5,
19,
-61,
-42,
0,
21,
22,
44,
32,
53,
41,
27,
1,
62,
9,
-7,
36,
28,
14,
18,
9,
-4,
37,
-38,
20,
-3,
7,
-67,
17,
3,
-42,
-3,
22,
-55,
-9,
8,
-63,
1,
29,
-68,
47,
-12,
33,
-19,
-12,
-32,
29,
-10,
23,
25,
31,
-7,
-39,
-11,
12,
-49,
41,
34,
27,
-76,
42,
-21,
-9,
11,
3,
8,
-31,
-13,
-27,
7,
-32,
-20,
-53,
-7,
-3,
23,
0,
15,
-9,
-33,
-40,
-95,
19,
-18,
24,
7,
-5,
27,
0,
-1,
-9,
17,
-9,
27,
-19,
39,
32,
-60,
-10,
25,
20,
1,
10,
8,
-20,
12,
2,
-9,
-37,
-9,
-18,
28,
-16,
-16,
-44,
-32,
39,
4,
84,
-51,
-40,
32,
47,
34,
12,
3,
-37,
3,
90,
35,
-28,
-29,
-37,
-8,
-25,
-41,
-41,
-53,
-16,
12,
3,
35,
58,
29,
-44,
-62,
1,
33,
-49,
-34,
9,
0,
27,
25,
-15,
-19,
-27,
25,
15,
24,
-3,
31,
50,
-44,
-15,
-4,
-31,
-33,
41,
25,
-47,
58,
-27,
19,
21,
-14,
34,
-40,
-1,
19,
21,
-33,
-33,
-8,
33,
-22,
11,
63,
0,
4,
-84,
9,
24,
-12,
-45,
12,
-53,
1,
19,
-26,
-16,
-19,
-38,
0,
-10,
-74,
-29,
-20,
35,
-19,
-45,
-22,
14,
-21,
-32,
-27,
-39,
-21,
-4,
-41,
-3,
5,
44,
24,
54,
-17,
6,
90,
21,
14,
16,
44,
57,
-20,
-40,
66,
44,
22,
46,
-21,
16,
-15,
19,
10,
3,
2,
-17,
-27,
-37,
1,
-41,
-3,
-24,
-49,
-87,
57,
18,
-12,
-9,
-6,
-31,
-4,
18,
-30,
-75,
32,
56,
41,
-19,
14,
-1,
22,
1,
-1,
-14,
9,
25,
54,
16,
-19,
59,
-83,
-26,
62,
4,
35,
44,
-24,
17,
34,
55,
7,
43,
3,
12,
11,
36,
-59,
-53,
19,
17,
-21,
-34,
-30,
-34,
12,
-21,
-61,
11,
11,
5,
-21,
-28,
5,
0,
27,
-13,
3,
11,
58,
-63,
-40,
-1,
-47,
-36,
-12,
8,
-15,
-79,
-36,
-1,
30,
-28,
0,
-21,
-32,
-5,
6,
8,
16,
-13,
22,
5,
38,
-38,
12,
-4,
-15,
-1,
-32,
-48,
29,
-29,
46,
36,
6,
-35,
23,
9,
24,
-56,
-8,
36,
19,
44,
23,
-48,
-17,
22,
-3,
34,
-15,
18,
-30,
-4,
23,
-2,
5,
-7,
12,
0,
25,
-7,
-42,
12,
21,
48,
-22,
40,
-25,
6,
12,
8,
-49,
-59,
-18,
21,
-30,
22,
-31,
25,
43,
37,
15,
-19,
22,
-26,
-7,
-15,
-19,
9,
53,
-41,
-41,
18,
-24,
-47,
-49,
-7,
-20,
23,
54,
36,
-32,
8,
4,
20,
14,
30,
-43,
16,
-4,
-19,
-20,
15,
-5,
-12,
9,
60,
2,
71,
-16,
48,
33,
8,
39,
5,
41,
18,
28,
-32,
8,
-15,
47,
-46,
53,
-19,
2,
25,
29,
-7,
57,
-22,
49,
19,
-34,
-28,
-21,
17,
-16,
7,
3,
15,
-42,
-30,
-56,
79,
-40,
-9,
-44,
10,
-39,
-68,
40,
-7,
41,
9,
2,
-55,
42,
39,
-45,
-61,
-3,
-26,
-35,
40,
-15,
23,
-49,
-57,
-35,
37,
-57,
21,
-61,
4,
-15,
49,
11,
-52,
42,
-12,
-71,
-35,
-9,
-10,
-17,
0,
-10,
47,
-47,
39,
-50,
-20,
34,
27,
57,
-25,
-53,
25,
27,
26,
43,
-30,
-27,
50,
37,
6,
-33,
61,
80,
25,
-47,
-30,
33,
30,
-6,
-7,
-15,
6,
17,
19,
29,
-18,
0,
84,
-1,
15,
-12,
2,
32,
24,
34,
67,
-46,
32,
-13,
-32,
-14,
-54,
-14,
-41,
29,
-63,
23,
40,
-3,
-53,
-25,
37,
43,
-26,
-27,
14,
-55,
-20,
-6,
-18,
14,
19,
14,
-42,
-40,
0,
40,
-41,
0,
-2,
30,
14,
-43,
-26,
31,
19,
18,
-39,
35,
-3,
-19,
-22,
2,
-16,
0,
-19,
-7,
20,
-43,
-18,
-3,
-33,
21,
14,
44,
-2,
-19,
-22,
25,
-19,
17,
54,
3,
2,
9,
5,
14,
5,
-10,
-16,
9,
2,
-55,
-39,
0,
-54,
-25,
-35,
4,
-10,
13,
28,
-18,
21,
26,
4,
-32,
-5,
1,
48,
-1,
51,
19,
18,
-6,
49,
-18,
2,
19,
-107,
-45,
16,
4,
17,
9,
-37,
-17,
-27,
-30,
-17,
6,
-29,
4,
29,
-48,
36,
37,
-17,
-35,
-24,
-24,
-22,
16,
2,
-10,
37,
27,
-12,
3,
17,
3,
-43,
-44,
26,
42,
12,
-3,
-46,
23,
-20,
-32,
26,
-13,
13,
-7,
42,
-56,
14,
-8,
6,
0,
26,
53,
-1,
4,
-38,
-16,
-14,
43,
3,
57,
34,
-22,
17,
-33,
-6,
45,
-9,
51,
35,
24,
-7,
-9,
5,
71,
72,
18,
-20,
0,
48,
31,
-6,
27,
-22,
23,
-19,
51,
-42,
-36,
30,
12,
19,
-48,
20,
2,
-10,
-30,
7,
73,
29,
-57,
8,
34,
-5,
-42,
47,
-20,
20,
4,
4,
14,
-13,
-3,
-1,
40,
-27,
0,
-18,
-36,
-59,
-14,
16,
47,
7,
-6,
0,
30,
-33,
14,
-48,
42,
19,
2,
-33,
-28,
-9,
53,
-26,
-9,
25,
15,
-32,
13,
8,
-25,
11,
-9,
-13,
10,
-40,
54,
12,
10,
29,
21,
-15,
28,
51,
57,
-42,
3,
-9,
-7,
42,
-42,
-4,
33,
-29,
-36,
-24,
4,
9,
18,
52,
27,
23,
24,
-14,
0,
38,
-3,
-56,
-20,
22,
-4,
-16,
-39,
-17,
3,
-7,
-15,
30,
-17,
18,
-55,
39,
38,
-14,
8,
36,
29,
-33,
-13,
27,
40,
-33,
-22,
-6,
-46,
-27,
-12,
62,
-17,
-7,
-31,
-12,
-52,
-25,
-55,
68,
-17,
42,
83,
-46,
-8,
-30,
3,
-1,
-42,
23,
33,
81,
22,
-29,
-70,
57,
4,
-43,
-13,
-48,
43,
5,
6,
0,
-41
] |
CHIEF JUSTICE McGRATH
delivered the Opinion of the Court.
¶1 Emineth Custom Homes and Shane Emineth (Emineth) appeal from the District Court’s judgment of July 23, 2015, entered following the jury’s verdict rendered June 12,2015. We affirm in part, reverse in part, and remand.
¶2 We restate the issue on appeal as follows:
Whether the District Court properly enteredjudgment following the jury’s verdict rendered June 12, 2015.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In about 2011 Pacific Steel & Recycling (Pacific) set about to expand its recycling and fabrication work in Williston, North Dakota, and foresaw the need for a warehouse and a remodeled office and shop. Pacific put the warehouse project out for bids and awarded the contract to Emineth as the low bidder. An unsuccessful bidder, unhappy about not getting the warehouse job, threatened to cancel a rail siding lease with Pacific if Emineth were allowed to proceed. Pacific revoked the contract award to Emineth in order to save the rail siding, but shortly thereafter entered into two contracts with Emineth, one to renovate the office and shop and the other to build four duplexes for employee housing.
¶4 In February 2012 Emineth and Pacific signed a contract which called for Emineth to build four duplex apartment units in Williston to house Pacific’s employees, for a price of approximately $1.9 million. The contract specified that Pacific would advance $474,625 to Emineth as a “down payment” upon execution of the contract. Under the contract Emineth was responsible for obtaining all necessary permits for the duplex project. The project required a zoning change, which proved difficult to obtain in a timely manner, although the local Zoning Board never denied the application.
¶5 There was testimony that the down payment was designed to fund work and materials required for the duplex project, as well as Emineth’s anticipated profit. Emineth testified that he used $7,000 of it to pay for engineering work on the drain field plan for the project and spent $39,000 on equipment to be used on Pacific projects in the Williston area.
¶6 In July 2012 Pacific cancelled the contract for the duplexes, contending that Emineth had not performed in a timely manner, and demanded return of the down payment. The parties agreed to a few subsequent projects that resulted in Pacific forgiving $32,000 of its claim to the down payment, but the parties did not resolve the issue. Pacific asked Shane Emineth to come to Great Falls to discuss their relationship. At that meeting Pacific demanded return of the advance payment and presented a promissory note for Emineth to sign. After consultation with an attorney, Emineth declined to sign the note. Emineth estimated that cancellation of the duplex project cost the company at least $100,000 in lost income.
¶7 In April 2013 Pacific initiated the present case by bringing an action against Emineth, stating a number of claims including breach of contract, unjust enrichment, constructive trust, and breach of the covenant of good faith and fair dealing. Pacific sought recovery of $437,625 of the down payment made to Emineth under the contract. This lesser amount recognized that Emineth was entitled to $32,000 credit arising from the other jobs done for Pacific. Emineth appeared in the action, denied liability to Pacific, and counterclaimed, seeking damages from Pacific for breach of contract and other claims. Notably, when the parties signed the pretrial order, Pacific asserted claims that Emineth had been unjustly enriched in the amount of $437,625; that Emineth held at least $437,625 in constructive trust for the benefit of Pacific; and that Emineth breached the covenant of good fair and fair dealing by improperly retaining the down payment.
¶8 The parties tried the case to a jury in June 2015. Just prior to trial Pacific filed a trial brief in which it stated that it would present its claim for return of the down payment solely upon the theory of breach of contract. Pacific abandoned its other causes of action against Emineth, including the claim for unjust enrichment. Moreover, Pacific did not assert as an affirmative defense or otherwise explicitly plead the issues of offset or restitution in its answer to the counterclaim filed by Emineth.
¶9 The parties agreed to a special verdict form which limited the basis of the claims of both sides to breach of contract. The verdict asked the jury to determine whether Pacific or Emineth had breached the duplex contract and if so, the amount of damages caused. The special verdict provided (with the jury’s responses):
BREACH OF CONTRACT (AGAINST EMINETH CUSTOM HOMES)
1. Did Emineth Custom Homes, Inc. (“ECH”) breach the duplex contract with Pacific Steel and Recycling (“Pacific”)? No
If “yes” proceed to Question 2. If “no” skip to Question 4.
2. Did ECH’s breach cause damages to Pacific?
If “yes,”proceed to Question 3. If “no,” skip to Question 4.
3. What amount of money will compensate Pacific for damages caused by ECH’s breach of the duplex contract?
Proceed to Question 4.
BREACH OF CONTRACT (AGAINST PACIFIC)
4. Did Pacific breach the duplex contract with ECH? Yes
If “yes” proceed to Question 5. If “no,” sign this verdict form and return it to the Bailiff
5. Did Pacific’s breach cause damages to ECH? Yes
If “yes” proceed to Question 6. If “no,” sign this verdict form and return it to the Bailiff.
6. What amount of money will compensate ECH for damages caused by Pacific’s breach of the duplex contract? $238,241.00
Pacific asserts in its brief on appeal that it offered an additional jury interrogatory that would have asked the jury to specifically determine the amount of the down payment that Emineth had to return. However, that interrogatory was not given; the parties agreed to the special verdict that was given; and Pacific does not appeal the issue.
¶10 The jury’s verdict determined that Emineth did not breach the contract with Pacific, but that Pacific breached the contract with Emineth. The jury further found that Pacific’s breach had caused Emineth damages of $238,241. After trial the parties could not agree upon the effect of the verdict. The District Court held a status conference with counsel, and entered judgment on the verdict in favor of Emineth for $238,241 as found by the jury. The District Court stated that the special verdict submitted to the jury was “appropriate under the circumstances”; that the case was a breach of contract case; and that the jury found that Pacific had breached the contract with Emineth. The District Court further noted that the jury found that Emineth suffered damages of $238,241 from the breach.
¶11 However, the District Court added: the “Court further finds” that Emineth had already received “474,000-some-odd dollars” and that Pacific is “entitled to credit for that amount” which “is owed back by [Emineth] to Pacific.” Consequently the District Court’s judgment provided that the amount of the verdict in Emineth’s favor was to be “deductedfrom the downpayment of $474,625.00 previously advanced” to Emineth. The judgment entered by the District Court was that Emineth “must return $236,139.00” to Pacific, based upon the difference between the jury’s award to Emineth and the amount that the District Court found that Pacific advanced to Emineth. The District Court credited Emineth with an award of costs of $245.
¶12 Consequently, the District Court ordered that Emineth’s jury award of $238,241 in its favor become a judgment against Emineth and in favor of Pacific for $236,139. Emineth appeals. Neither party appeals the jury’s determinations that Pacific breached the contract and that Emineth did not; neither party appeals the jury’s verdict that Pacific’s breach caused damage to Emineth.
STANDARD OF REVIEW
¶13 The parties do not dispute the jury’s verdict, but rather disagree over the District Court’s judgment that implements that verdict. The district court exercises its discretion to structure a special verdict and to frame the questions. The questions must be adequate to enable the jury to determine the factual issues essential to the judgment. Kiely Const. v. Red Lodge, 2002 MT 241, ¶ 57, 312 Mont. 52, 57 P.3d 836. We review de novo, as a conclusion of law, a district court’s decision as to offsets applied to a judgment. Cheff v. BNSF Ry. Co., 2010 MT 235, ¶ 25, 358 Mont. 144, 243 P.3d 1115. On appeal this Court will not speculate how the jury viewed the evidence or how it reached its decision. Jim’s Excavating v. HEM Associates, 265 Mont. 494, 513, 878 P.2d 248, 259 (1994).
DISCUSSION
¶14 Issue: Whether the District Court properly entered judgment following the jury’s verdict rendered June 12, 2015.
¶15 As noted, neither side appeals from the jury’s verdict determining that Pacific breached the contract; that Emineth did not; and that the breach caused Emineth damage. It is clear that the jury did exactly what was asked of it, returning a verdict by answering the specific questions that were presented. The only issue is whether the District Court’s final judgment correctly interpreted the verdict. The express effect of the District Court’s judgment was a determination that Emineth owed Pacific $474,625, and that the verdict of $238,241 in Emineth’s favor was an offset against the $474,625 down payment.
¶16 A special verdict must adequately cover the contested issues required to decide the controversy between the parties. Kiely, ¶ 57. This case began with Pacific’s lawsuit against Emineth, seeking return of most of the down payment. The record is clear that by the time of trial the parties did not agree as to whether Pacific was entitled to recover any of the down payment advanced to Emineth. Pacific’s complaint, and its contentions in the pretrial order, sought the return of $437,625 from Emineth, not the entire original advance of $474,625 as relied upon in the District Court’s judgment. The pretrial order provides that the parties contested the portion, if any, of the advance that Pacific was entitled to recover.
¶17 The parties acknowledged in the pretrial order that Emineth was entitled to credit of $32,000 against any portion of the down payment it was required to return to Pacific. The District Court did not provide, nor did the parties request that it provide, the jury with any specific instructions about Pacific’s entitlement to a return of any portion of the down payment.
¶18 It is clear, both from the stipulation to give the special verdict, and from the closing arguments, that the attorneys for both sides intended that the jury’s answers to the special verdict would settle the issues in the case, which by the time of trial were all based upon breach of contract. Pacific’s attorney argued that if the jury found that Emineth breached the contract, the jury should award Pacific the remaining $437,625 of the down payment: “We ask that you return a verdict for Pacific that Emineth Custom Homes breached this contract, awarding $437,625 to Pacific.” Pacific’s attorney also argued that if the jury found that Pacific breached the contract, they should award Emineth lost profits of $125,301 “at the most.” Emineth’s attorney argued that the $474,625 advanced by Pacific on the duplex contract represented the money that Emineth anticipated making on the entire contract, and that if Pacific breached then Emineth was entitled to keep the advance payment. Emineth’s attorney also argued that if the jury found that Pacific was in breach, it “can also decide to give an allowance over and above that to Emineth ....” Emineth’s attorney argued that it as an “all or nothing” case in which it was impossible to “split [the] baby.”
¶19 At the time of trial, Pacific’s only claim was that Emineth breached the duplex contract and therefore Pacific was entitled to recover the down payment. However, the jury found that Emineth did not breach the contract. Once the jury found no breach by Emineth, that was the end of Pacific’s claim to a return of the down payment, and it was entitled to recover nothing from Emineth. Emineth’s claim was that Pacific breached the duplex contract, and therefore Emineth was entitled to recover the damages that flowed from that breach. The jury found that Pacific breached the contract and that the damages suffered by Emineth were $238,241. Therefore, the special verdict completely resolved the case, as the attorneys argued.
¶20 The parties provide various arguments as to how the jury might have rendered the special verdict while accounting or not accounting for the down payment. However, this is all speculation as to what the verdict might mean. A verdict that specifies only the total damages does not allow a determination as to what categories or amounts of damages are included, and the Court “will not speculate when the verdict form does not explain the jury’s thought process.” Murray v. Whitcraft, 2012 MT 298 ¶ 12, 367 Mont. 364, 291 P.3d 587. It is improper for a court to speculate on the jury’s thought process when it is not explained by the verdict form. Horn v. Bull River Country Store, 2012 MT 245, ¶ 25, 366 Mont. 491, 288 P.3d 218. When it is separated from the District Court’s subsequent judgment, and placed in the context of the jury trial, the jury’s verdict is clear.
¶21 It is inescapable that the District Court in rendering the judgment made a factual determination contrary to the verdict returned by the jury. The question of whether Emineth got to retain any portion of the down payment was clearly settled when the jury found against Pacific on its only claim, that Pacific breached the duplex contract, and when it found that Emineth did not.
¶22 When a case is tried to a jury, the jury is responsible for finding the facts required to determine the case, § 27-1-103, MCA, and must do so “in a spirit of neutrality, fairness and open-mindedness.” State v. Graves, 274 Mont. 264, 270, 907 P.2d 963, 967 (1995). The District Court properly instructed the jury members that they were the “sole judges of the facts in this case.” The jury’s responsibility is to weigh evidence and resolve conflicts in it, to judge the credibility of witnesses, and to make the factual determinations necessary to render a verdict. “The court must defer to the jury’s constitutionally sanctioned decisional role, and it is not the court’s role to repeat the jury’s tasks and retry a case or reweigh the evidence.” In the Matter of L.A., 2013 MT 327, ¶ 11, 372 Mont. 368, 313 P.3d 115.
¶23 As noted, neither side appeals from or contests the liability decisions that the jury made in its special verdict, that Pacific breached the contract with Emineth. Therefore, the jury’s verdict in that regard stands, and for the reasons explained above, the verdict is affirmed. Emineth is entitled to recover $238,241 from Pacific and Pacific is not entitled to recover anything from Emineth. The District Court’s judgment is vacated. We remand to the District Court for entry of a judgment of $238,241 against Pacific and in favor of Emineth.
CONCLUSION
¶24 This case is affirmed in part, reversed in part, and remanded for entry of a new judgment.
JUSTICES SHEA, COTTER, BAKER and McKINNON concur.
The District Court failed to provide an amount for the credit that Pacific acknowledged that it owed to Emineth for work done on other projects.
|
[
-8,
21,
-45,
-49,
-11,
-25,
-7,
9,
55,
19,
-1,
39,
18,
1,
-7,
-39,
32,
-21,
-13,
27,
-41,
-56,
-19,
-36,
-47,
10,
-39,
-10,
5,
-33,
36,
-5,
-9,
1,
15,
39,
0,
11,
7,
-20,
11,
-57,
-49,
-28,
9,
29,
9,
-44,
36,
2,
52,
17,
-15,
-12,
30,
10,
-45,
3,
-42,
39,
-26,
-34,
-9,
26,
51,
-27,
29,
1,
13,
67,
-27,
-12,
-7,
-30,
-16,
-26,
-12,
40,
-52,
-47,
-25,
46,
-15,
-74,
-1,
7,
25,
-66,
-16,
70,
-4,
-35,
80,
41,
-26,
64,
22,
-25,
-71,
27,
11,
7,
4,
-34,
-3,
-42,
-48,
-5,
47,
22,
24,
30,
-35,
1,
-11,
54,
-20,
49,
-26,
-10,
-36,
48,
-16,
11,
10,
-13,
25,
-17,
-26,
-9,
-33,
-29,
7,
0,
-17,
5,
-10,
-50,
7,
63,
22,
22,
4,
-2,
-2,
54,
-23,
-56,
-33,
-58,
2,
-57,
-6,
6,
-34,
-34,
1,
-12,
19,
-20,
31,
-3,
55,
24,
-31,
-3,
3,
19,
18,
-38,
44,
-11,
-9,
-54,
51,
-27,
35,
-34,
-12,
-73,
0,
5,
21,
-15,
-9,
28,
14,
-1,
45,
-56,
29,
-14,
-81,
4,
7,
0,
-73,
32,
43,
56,
-19,
-17,
34,
-33,
8,
34,
-13,
-6,
8,
-25,
25,
-22,
-49,
-35,
39,
14,
13,
-12,
29,
-49,
32,
-9,
-15,
-35,
-72,
6,
-10,
-25,
90,
-34,
-70,
-26,
43,
51,
4,
16,
36,
-1,
-21,
-11,
17,
-22,
-63,
5,
-30,
-39,
-43,
23,
-2,
-50,
-59,
-51,
22,
43,
-19,
-2,
-5,
37,
-51,
2,
44,
10,
-36,
-5,
-8,
51,
0,
-15,
-38,
43,
5,
38,
17,
44,
-31,
-16,
-20,
-7,
7,
17,
31,
-21,
89,
-30,
21,
41,
10,
72,
-50,
-16,
6,
-5,
4,
-26,
46,
-52,
-4,
-15,
-34,
-4,
-53,
-23,
17,
-2,
55,
29,
-20,
99,
10,
32,
7,
-25,
3,
-42,
-49,
16,
29,
-19,
-7,
-32,
-6,
34,
30,
-36,
16,
-19,
38,
2,
-13,
3,
-52,
40,
25,
42,
45,
-2,
23,
-18,
-16,
-21,
36,
8,
46,
-80,
-39,
-18,
-4,
-31,
-12,
-16,
44,
23,
-86,
12,
17,
18,
-14,
0,
14,
0,
53,
67,
-1,
-12,
-62,
-24,
20,
-27,
-51,
0,
-21,
10,
6,
23,
78,
6,
24,
-6,
-77,
47,
55,
8,
18,
-1,
25,
-6,
29,
-8,
-62,
-35,
4,
-50,
-26,
9,
-17,
-50,
4,
-43,
-41,
-94,
17,
4,
-3,
-51,
23,
0,
7,
15,
1,
-27,
-51,
-23,
28,
-21,
-36,
3,
-45,
-12,
-4,
65,
46,
35,
0,
-32,
38,
-20,
3,
27,
-48,
46,
-76,
12,
29,
-23,
-26,
-2,
3,
21,
-39,
74,
-77,
26,
-47,
-9,
-13,
21,
11,
13,
29,
-23,
-10,
8,
12,
36,
16,
52,
23,
-45,
88,
46,
53,
34,
51,
-46,
29,
-1,
26,
4,
-33,
5,
-34,
22,
52,
18,
66,
43,
15,
21,
-41,
59,
50,
-51,
-21,
-34,
-31,
-31,
-57,
-22,
11,
56,
5,
90,
-6,
-59,
-5,
-44,
18,
16,
7,
21,
-10,
-31,
28,
-34,
28,
-65,
34,
30,
7,
-27,
-10,
5,
33,
13,
-47,
52,
9,
11,
15,
45,
26,
-31,
-54,
-28,
-23,
36,
33,
-8,
-1,
-48,
-42,
0,
-17,
-5,
-13,
-7,
40,
-10,
40,
29,
-16,
9,
-38,
3,
-14,
33,
-33,
-14,
32,
-14,
7,
-11,
32,
33,
-49,
-7,
0,
11,
44,
-23,
12,
64,
21,
-7,
22,
-8,
-3,
-28,
24,
11,
-13,
-27,
-56,
-11,
4,
-39,
-53,
14,
23,
-6,
-12,
-25,
-8,
-5,
-61,
31,
50,
13,
-12,
-7,
-3,
4,
-50,
-17,
-81,
-8,
21,
55,
-10,
-34,
24,
-12,
-10,
-5,
-8,
-50,
16,
52,
-34,
11,
-15,
-10,
-5,
34,
33,
6,
11,
-33,
43,
17,
8,
7,
-9,
3,
-32,
13,
-4,
-5,
-42,
51,
2,
5,
-14,
-23,
-6,
12,
13,
41,
5,
-59,
63,
11,
-16,
-10,
-64,
3,
23,
24,
-3,
27,
25,
16,
54,
12,
46,
9,
4,
6,
12,
-1,
27,
16,
34,
-13,
-32,
-69,
32,
-5,
17,
19,
-6,
30,
6,
37,
-4,
-47,
29,
-9,
-21,
11,
0,
-33,
-20,
-20,
-35,
-31,
-30,
-23,
-20,
12,
5,
-1,
0,
-38,
43,
40,
-30,
2,
-1,
62,
-9,
49,
79,
17,
-24,
106,
-17,
-12,
37,
-22,
37,
-13,
18,
29,
-45,
1,
2,
-3,
-91,
-64,
20,
-34,
-19,
19,
27,
-31,
-12,
-25,
17,
101,
-55,
36,
73,
32,
-7,
-34,
-21,
-33,
0,
-17,
-56,
17,
-6,
-7,
-5,
24,
-5,
59,
-28,
-15,
-9,
-20,
-2,
-16,
-34,
-31,
-15,
40,
-8,
21,
8,
-34,
0,
36,
95,
-5,
12,
-11,
39,
-30,
15,
14,
-15,
57,
-11,
-2,
45,
19,
14,
26,
-10,
16,
-16,
41,
-26,
-11,
3,
21,
6,
60,
-69,
54,
-5,
18,
-24,
-10,
-16,
18,
11,
38,
-27,
1,
-7,
-18,
30,
7,
-45,
-5,
35,
-10,
-45,
-47,
0,
-2,
97,
-8,
13,
1,
-35,
23,
-9,
65,
-26,
-25,
13,
-12,
6,
23,
-5,
25,
6,
-43,
-81,
9,
-79,
-14,
0,
71,
-7,
-5,
-48,
-37,
-34,
10,
-7,
-5,
-22,
56,
-10,
-5,
-53,
3,
63,
-53,
10,
-1,
28,
21,
44,
-17,
39,
33,
-22,
90,
-15,
-20,
-51,
-17,
3,
39,
-3,
12,
48,
13,
-13,
-26,
-33,
-9,
30,
39,
53,
67,
1,
-31,
9,
-54,
-24,
22,
-36,
36,
-22,
-44,
3,
-44,
-28,
-26,
21,
-47,
-8,
25,
28,
48,
-13,
-4,
0,
23,
42,
34,
-24,
4,
5,
-37,
19,
-31,
-77,
35,
-43,
-12,
34,
47,
0,
7,
-51,
27,
3,
-6,
-17,
-25,
-14,
50,
-29,
-8,
71,
51,
-44,
11,
-38,
-24,
-69,
-2,
-54,
-17,
-7,
1,
26,
-54,
25,
-56,
0,
-12,
14,
74,
-14,
50,
51,
-35,
-11,
32,
-17,
-89,
15,
28,
3,
-29,
13,
-26,
9,
33,
12,
-57,
-2,
7,
14,
-17,
26,
-23,
5,
-28,
16,
5,
40,
45,
30,
36,
-17,
-14,
-10,
-15,
-19,
-1,
7,
1,
17,
-1,
-18,
-34,
30,
-32,
26,
-20,
39,
-6,
3,
-20,
33,
9,
1,
9,
14,
-15,
9,
53,
17,
-1,
8,
-37,
-28,
-6,
38,
-1,
4,
-32,
29,
-13
] |
JUSTICE McKINNON
delivered the Opinion of the Court.
¶1 KB.’s father, J.B. (Father), appeals from an order entered by the First Judicial District Court, Lewis and Clark County, terminating his parental rights. We affirm.
¶2 Father presents the following issues for review:
1. Whether the District Court lacked subject matter jurisdiction over K.B/s abuse and neglect proceeding.
2. Whether Father received ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 K.B. was born in 2007 and is the daughter of Father and M.H. (Mother). K.B. was living with Mother when she was removed from Mother’s care by the Department of Public Health and Human Services (the Department) on November 26, 2012, due to concerns regarding Mother’s ability to care for her and protect her from domestic violence. K.B. was placed in kinship foster care with her Aunt and Uncle, where she has remained. K.B.’s younger sister, T.H., also lives with Aunt and Uncle. K.B. was adjudicated a Youth in Need of Care on May 30,2013. The Department drafted a treatment plan for Father. Father requested the name of the treatment plan be changed. The typewritten words “Treatment Plan” were stricken from the title with a pen. Above “Treatment Plan” the handwritten word “Checklist” was inserted. Otherwise, the substance of the document remained unchanged. The District Court referred to the document afterwards as the “non-offending parent checklist.” Father signed the document on June 25, 2013, and the District Court approved it. Summarized, its tasks required Father to: 1) remain law abiding; 2) address his substance abuse issues; 3) establish a safe, stable home and obtain employment; 4) maintain visitation with K.B.; and 5) remain in contact with the Department.
¶4 The Department filed petitions to terminate Mother and Father’s rights on May 12, and September 29, 2014, respectively. On April 15, 2015, the District Court held a termination hearing. At the hearing, Mother consented to termination and relinquished her parental rights to K.B. Father opposed his termination, but did not argue he should be given custody of K.B. Instead, he asked the District Court for an additional six months to accomplish the tasks on his “checklist” before he could become a placement option for K.B.
¶5 At the termination hearing, evidence presented to the District Court showed that K.B. flourished while living with Aunt and Uncle during the 29 months preceding the termination hearing. At the time of the hearing, Aunt and Uncle wished to adopt K.B. and T.H. K.B.’s school principal testified that K.B.’s behavior and demeanor had drastically improved since being placed with Aunt and Uncle, who are very active in parenting her. KB.’s kindergarten and first grade teacher testified that K.B. was initially a very angry and isolated student. Later, she testified, K.B. became a pleasant, eager to please student with vastly improved behavior. KB.’s current, second grade teacher testified that she had not observed some of K.B.’s initial behavioral issues that others had witnessed and reported to her. She testified K.B. likes to be in control, is a pleasant student, and she enjoys having K.B. in her class. K.B.’s Court Appointed Special Advocate testified that after many attempts, he was never able to get in contact with Father and that Father’s termination was in K.B.’s best interests because of her need for permanency. KB.’s therapist testified that she had worked with K.B. since the beginning of 2013. In that time, she testified, K.B. had made substantial progress in her behavior and self-confidence.
¶6 Michelle Silverthorne (Silverthorne), Child Protection Specialist, has been K.B.’s case worker since her removal. At the termination hearing, Silverthorne testified that she initially looked to Father as the “non-offending” parent for K.B.’s placement, as is customary when a child is removed from one custodial parent. However, she did not think Father was an appropriate or safe choice because he admitted to her that he could not financially support K.B. or provide her a place to live. Also, Father was on probation as a result of an earlier conviction of partner-family member assault. When asked about the Department’s policy with regard to a treatment plan for a non-offending parent, Silverthorne responded:
Well, if the non-offending parent is unable to take care of the child, then we still go forward with trying to get the child adjudicated as a Youth in Need of Care and then developing a treatment plan to get that parent to the point where they can parent the child full time.
She testified that it was under this policy that she proceeded in developing a treatment plan for Father.
¶7 As of the termination hearing, Silverthorne testified that F ather’s treatment plan had not been successful. Father had been incarcerated recently, had stopped visiting K.B., and failed to remain in contact with Silverthorne. Father’s visitation rights were suspended because reports alleged, and K.B. confirmed, that he had left K.B., age six, at a carousel alone while he went to pick up his girlfriend. Also, another report alleged Father was abusing methamphetamines. During the summer of 2014, Silverthorne and Father’s attorney each notified Father that his unsupervised visits would be suspended until he underwent urinalysis testing. At the time of the termination hearing, Father had not had contact with K.B. since mid-2014, except for one visit made while K.B. was in the hospital recovering from a tonsillectomy. Silverthorne testified that Father had not called or visited her office to see why his visitation had been suspended, although he knew her phone number, which had not changed, and knew where her office was located. Silverthorne testified that as a result of not being in contact with Father, she had no way to verify whether he had established safe, stable housing or employment. Silverthorne testified that she did not believe Father would be able to turn his situation around in a reasonable amount of time to adequately care for K.B. Silverthorne testified that K.B. is well-bonded and feels safe with Aunt and Uncle. Silverthorne testified that termination of Father’s rights was in KB.’s best interests, especially her need for permanency.
¶8 Father testified at the termination hearing and explained he was not allowed to see K.B. from August 2014 until February 2015 and he did not know why. He testified he had been told to call Silverthorne to find out and had tried to on several occasions, but had failed to reach her or get a call back from her. Father testified he had no issue taking a drug test, as he had been tested regularly while on probation. He also testified that he did not believe he should be required to undergo drug testing. Father testified he was employed part-time and was planning on moving to Butte where he believed he would be offered a full-time job.
¶9 At the end of the termination hearing, the District Court terminated Father’s rights from the bench. On July 23, 2015, the District Court issued its findings of fact, conclusions of law, and order terminating Father’s parental rights pursuant to § 41-3-609(l)(f), MCA. In its order, the District Court concluded that clear and convincing evidence established that a treatment plan for Father had been approved, but had not been successful and that the condition rendering Father unfit was unlikely to change within a reasonable amount of time. The District Court also concluded that clear and convincing evidence established that K.B.’s best interests would be served by terminating Father’s parental rights and awarding the Department permanent legal custody with the lawful authority to consent to her adoption. Father appeals.
STANDARD OF REVIEW
¶10 Whether a district court possesses subject matter jurisdiction is a question of law, which we review de novo. In re B.W.S., 2014 MT 198, ¶ 10, 376 Mont. 43, 330 P.3d 467 (citation omitted). This Court exercises plenary review of whether a parent was denied effective assistance of counsel. In re B.M., 2010 MT 114, ¶ 22, 356 Mont. 327, 233 P.3d 338; In re J.J.L., 2010 MT 4, ¶ 14, 355 Mont. 23, 233 P.3d 921.
DISCUSSION
¶11 1. Whether the District Court lacked subject matter jurisdiction over K.B.’s abuse and neglect proceeding.
¶12 Father argues the District Court lacked subject matter jurisdiction to terminate his parental rights because the court never approved a treatment plan for him under § 41-3-609(l)(f), MCA, and because he was a “non-offending” parent. “Subject-matter jurisdiction is a court’s fundamental authority to hear and adjudicate a particular class of cases or proceedings.” Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 57, 345 Mont. 12, 192 P.3d 186 (citations omitted). “Subject matter jurisdiction of the district courts is established by the Montana Constitution.” Lorang, ¶ 56 (internal quotations and citation omitted). Particularly, Article VII, Section 4(1) provides that district courts have “original jurisdiction in... all civil matters.” Therefore, a district court’s subject matter jurisdiction is extremely broad and covers “all civil matters,” including child abuse and neglect proceedings. A court’s subject matter jurisdiction is not affected by a court’s failure to follow statutory requirements. See B.W.S., ¶ 13 (citations omitted).
¶13 Father argues the District Court lacked subject matter jurisdiction to terminate his parental rights because his “checklist” did not satisfy the requirements of § 41-3-609(1)©, MCA. However, conformity with the statute is unrelated to a court’s authority to hear child abuse and neglect cases. Trial courts have subject matter jurisdiction over child abuse and neglect proceedings because they are “civil matters.”
¶14 Subject matter jurisdiction over child abuse and neglect proceedings is conferred to the district courts by the Montana Constitution, not by statute. Even if the court failed to follow § 41-3-609(l)(f), MCA, it would nevertheless still have subject matter jurisdiction over the termination proceeding affecting K.B. Pursuant to § 41-3-103(1), MCA, “a person is subject to a proceeding under [the child abuse and neglect statutes] and the district court has jurisdiction over: (a) a youth who is within the state of Montana for any purpose;” and “(d) a youth or a youth’s parent ... who resides in Montana ....” Therefore, there is no requirement that a parent be an “offending” parent before a court may make decisions regarding the best interests of a child suspected of having been abused or neglected. Jurisdiction is conferred by virtue of the youth being within the state of Montana, and that jurisdiction extends to a parent pursuant to the provisions of § 41-3-103(1), MCA. The District Court correctly concluded it had subject matter jurisdiction over KB.’s child abuse and neglect proceeding and authority to terminate Father’s parental rights.
¶15 2. Whether Father received ineffective assistance of counsel.
¶16 “[P]arents have a due process right to effective assistance of counsel in termination proceedings.” In re A.S., 2004 MT 62, ¶ 20, 320 Mont. 268, 87 P.3d 408. Whether assistance was effective requires review of counsel’s training, experience, and advocacy. B.M., ¶ 22 (citation omitted). Ineffective assistance of counsel requires reversal only if the parent suffered prejudice. B.M., ¶ 22 (citation omitted).
¶17 Father argues he received ineffective assistance of counsel because of his counsel’s inadequate advocacy of Father’s interests. Specifically, Father believes his counsel rendered ineffective assistance when he failed to object: (1) to K.B. being adjudicated a Youth in Need of Care; (2) to the District Court’s characterization of his “checklist” as a treatment plan; and (3) to the District Court exercising subject matter jurisdiction over K.B.’s proceeding. We address each contention in turn.
A. Youth in Need of Care Adjudication
¶18 On May 30, 2013, Father stipulated to the District Court’s adjudication of K.B. as being a Youth in Need of Care. A Youth in Need of care is a youth who has been determi ned to be, or have been, abused, neglected, or abandoned. Section 41-3-102(34), MCA. In his stipulation, Father admitted “that the State could prove by a preponderance of evidence that the youth is abused and neglected within the meaning of Mont. Code Ann. § 41-3-102 based upon the facts contained in the Affidavit of the Child Protection Specialist.” Child Protection Specialist Michelle Young filed an affidavit that included evidence that Mother was subjecting K.B. to domestic violence and drug abuse, by Mother’s use of methamphetamines. The affidavit alleged both of Mother’s children had fathers who were convicted of partner-family member assault while living with K.B. The affidavit alleged K.B. then “age 5, has had significant exposure to domestic violence her entire young life” and that both KB.’s father and her sister’s father had received at least three charges of partner-family assault, for allegedly assaulting Mother. The affidavit alleged that K.B. had witnessed Mother and T.H., then age three, being beaten, hit, and kicked. The affidavit further stated that T.H.’s father, while incarcerated, accused Mother of physically abusing T.H. by kicking her in the face.
¶19 Had Father not stipulated and insisted on a contested hearing, the State was ready, willing, and able to present testimony regarding these allegations. The evidence was substantial and would have established by a preponderance that-K.B. was a Youth in Need of Care. Thus, any objection or insistence by Father’s counsel to have a contested hearing, even assuming for the sake of argument that it constituted deficient performance by counsel, could not have prejudiced Father. Moreover, Father misunderstands the focus of child abuse and neglect proceedings — the child. He mistakenly argues that K.B. could only have been adjudicated a Youth in Need of Care “as to” Mother and not “as to” him because K.B. was living with Mother when she was removed. A child is not determined to be a Youth in Need of Care “as to” anyone. The child is adjudicated a Youth in Need of Care because he or she is being, or have been, abused, neglected, or abandoned. The District Court had sufficient evidence to adjudicate K.B. a Youth in Need of Care. Father cannot show he suffered prejudice as a result of his counsel’s failure to object to that determination.
B. “Checklist” or “Treatment Plan”
¶20 On June 25,2013, Father signed and the District Court approved a document prepared by the Department as a treatment plan. Father asked that the document be renamed. The words “Treatment Plan” were marked through and replaced with the word “Checklist.” On appeal, Father contends his counsel was ineffective in failing to object to the District Court’s characterization of this document as a treatment plan. He argues that retitling the document changed its substance. We find Father’s argument unpersuasive.
¶21 If a child is found to be a Youth in Need of Care, the court may “order the department to evaluate the noncustodial parent as a possible caretaker.” Section 41-3-438(3)(b), MCA. The court may order a treatment plan for the child’s parent if “the court has made an adjudication under 41-3-437 that the child is a youth in need of care.” Section 41-3-443(l)(c), MCA. A treatment plan is a “written agreement between the department and the parent or guardian ... that includes action that must be taken to resolve the condition or conduct of the parent or guardian that resulted in the need for protective services for the child.” Section 41-3-102(30), MCA.
¶22 Here, the statute authorized the Department, following the court’s determination that K.B. was a Youth in Need of Care, to evaluate Father as a noncustodial parent and possible caretaker for K.B. Similarly, the District Court was authorized by statute to order Father to comply with a treatment plan because K.B. was adjudicated a Youth in Need of Care. The document in question was prepared for Father as a treatment plan. It specified actions Father must take to resolve the need for protective services to be involved in K.B.’s life, and for Father to become an appropriate placement option for K.B. The document, by whatever name Father chooses to subscribe to it, constituted a treatment plan as defined by statute. Father has not shown he suffered prejudice as a result of his counsel’s failure to object to the District Court’s characterization of the so-called “non-offending parent checklist” as a treatment plan because the document constituted a treatment plan. As such, the document satisfied one of the requirements of § 41-3-609(l)(f), MCA, for termination of Father’s rights.
C. Subject Matter Jurisdiction
¶23 Father cannot show he suffered prejudice as a result of his counsel’s failure to object to the District Court’s subject matter jurisdiction because, as shown above, the District Court had subject matter jurisdiction over KB.’s abuse and neglect proceeding.
CONCLUSION
¶24 The District Court appropriately exercised subject matter jurisdiction over K.B.’s abuse and neglect proceeding. Father cannot demonstrate he received ineffective assistance of counsel.
¶25 Affirmed.
CHIEF JUSTICE McGRATH, JUSTICES SHEA, WHEAT, COTTER and BAKER concur.
|
[
-19,
-47,
-6,
28,
-4,
-56,
-10,
11,
-10,
-10,
-8,
-34,
9,
9,
-25,
-22,
-38,
15,
32,
-15,
50,
81,
21,
35,
38,
39,
-27,
-2,
-28,
-21,
12,
-54,
18,
4,
-41,
21,
63,
-21,
32,
14,
49,
-11,
-19,
-12,
-15,
22,
1,
55,
-37,
43,
17,
-7,
20,
25,
27,
30,
62,
44,
-2,
-18,
-35,
-7,
-17,
-20,
50,
-2,
-20,
-22,
21,
14,
3,
-62,
-53,
-45,
14,
0,
-35,
-37,
38,
40,
-30,
33,
-2,
-17,
-6,
-5,
-11,
-3,
-27,
79,
68,
-15,
-38,
-35,
-10,
27,
18,
4,
-24,
-7,
18,
-12,
3,
13,
4,
-5,
-6,
-21,
61,
42,
15,
-18,
5,
26,
-49,
18,
26,
13,
-30,
45,
1,
60,
9,
-23,
32,
-13,
-9,
-46,
47,
-1,
-33,
-4,
39,
-31,
3,
-42,
5,
-23,
-57,
-19,
-22,
-50,
9,
-19,
-17,
22,
-56,
-30,
24,
0,
62,
-13,
9,
15,
46,
17,
26,
11,
-45,
17,
18,
21,
15,
-30,
-56,
-52,
-23,
19,
-58,
-28,
20,
8,
-39,
-12,
19,
11,
-42,
-1,
-32,
-5,
24,
11,
39,
-13,
-13,
53,
20,
-40,
-19,
-41,
-84,
29,
59,
-13,
7,
39,
63,
-5,
0,
5,
0,
53,
58,
13,
-10,
-10,
-11,
-58,
-6,
-57,
7,
63,
-25,
-83,
-32,
-73,
4,
-8,
-62,
22,
27,
-7,
26,
-20,
-35,
-55,
26,
34,
-16,
-42,
6,
-13,
18,
14,
-28,
63,
-15,
-35,
0,
13,
22,
-1,
41,
-20,
12,
17,
-47,
10,
2,
-28,
-58,
45,
-9,
36,
30,
-22,
-21,
46,
13,
-19,
46,
-31,
-2,
8,
-1,
42,
-9,
22,
19,
-4,
-11,
-19,
-6,
6,
-1,
6,
32,
2,
-13,
-2,
-1,
47,
35,
-1,
-3,
2,
39,
20,
46,
22,
-44,
-36,
10,
-19,
51,
-20,
-4,
22,
-50,
-36,
-13,
-54,
-29,
26,
-51,
9,
2,
19,
-3,
19,
61,
29,
-31,
-32,
-10,
-23,
-59,
5,
54,
22,
-54,
-38,
6,
-34,
0,
-61,
1,
-40,
37,
7,
-5,
-3,
38,
1,
36,
-15,
0,
16,
51,
0,
-8,
-41,
40,
10,
-29,
-37,
-7,
33,
8,
-15,
-4,
51,
2,
-16,
-59,
-2,
-25,
-74,
-7,
-35,
-18,
-24,
-49,
-45,
-2,
19,
67,
-2,
-56,
-64,
26,
-22,
10,
35,
17,
2,
-13,
35,
37,
16,
-34,
-20,
33,
0,
33,
31,
28,
34,
39,
-49,
81,
-24,
7,
-19,
-22,
3,
-30,
1,
35,
-43,
8,
-2,
10,
17,
10,
48,
17,
25,
-13,
-36,
-8,
12,
36,
32,
0,
35,
-29,
-34,
-23,
0,
-7,
29,
53,
-5,
-1,
27,
-26,
50,
9,
-28,
-32,
-9,
-8,
48,
8,
16,
75,
-17,
2,
26,
-53,
20,
-35,
37,
0,
24,
-2,
-36,
47,
-17,
7,
25,
4,
67,
44,
-2,
-6,
25,
-73,
-10,
-8,
51,
-1,
-20,
3,
-36,
-59,
12,
-9,
11,
-6,
-6,
-16,
45,
3,
44,
-39,
61,
13,
-59,
0,
-35,
-35,
56,
62,
34,
-2,
-58,
-33,
-47,
35,
2,
0,
-4,
-30,
-43,
-19,
27,
-34,
-32,
53,
14,
43,
53,
27,
-55,
-20,
44,
-29,
-29,
76,
22,
34,
-16,
-61,
-10,
21,
46,
52,
-19,
98,
26,
-23,
-7,
-9,
0,
-6,
-17,
-43,
-11,
5,
49,
-34,
55,
-5,
42,
-46,
-30,
27,
-29,
52,
-17,
-10,
-21,
-22,
-37,
33,
29,
5,
-14,
25,
-28,
-3,
14,
62,
-49,
-4,
44,
-35,
-7,
36,
13,
-14,
10,
-46,
-20,
-61,
31,
-33,
-12,
27,
11,
-48,
6,
38,
14,
-26,
-4,
1,
-48,
36,
-10,
2,
-14,
-62,
-22,
32,
-24,
40,
-5,
-16,
-48,
-71,
-16,
-8,
-49,
-2,
-20,
-38,
-18,
24,
-12,
44,
-20,
-4,
-6,
51,
22,
-22,
13,
-23,
2,
-49,
-47,
7,
-16,
7,
-35,
-21,
24,
-40,
8,
-39,
23,
-30,
-30,
-33,
-1,
33,
9,
19,
-24,
36,
-43,
39,
-74,
9,
-19,
12,
-43,
44,
77,
-16,
30,
-38,
-2,
45,
-1,
12,
-18,
-27,
32,
-13,
18,
-26,
8,
8,
-8,
55,
2,
38,
-47,
23,
49,
-7,
-39,
27,
16,
-12,
51,
-42,
69,
-35,
61,
-22,
32,
18,
-58,
81,
0,
-17,
-48,
38,
-23,
29,
-9,
64,
-32,
-29,
-23,
-17,
-10,
60,
10,
27,
-14,
-81,
51,
-1,
3,
-62,
50,
8,
-11,
9,
42,
11,
-3,
-5,
-30,
-2,
18,
-25,
-15,
-18,
5,
-4,
-63,
-32,
7,
-61,
49,
-18,
-35,
45,
1,
46,
-74,
9,
-26,
-26,
-9,
12,
42,
-51,
5,
-61,
-23,
14,
27,
26,
-11,
-6,
-29,
4,
24,
0,
-18,
-26,
34,
27,
-54,
5,
6,
-62,
30,
77,
-1,
-30,
16,
14,
41,
65,
48,
-7,
8,
-16,
-22,
54,
-11,
1,
-29,
1,
48,
-42,
55,
29,
-10,
-36,
-72,
-32,
15,
-2,
-12,
10,
-23,
-6,
-19,
-4,
48,
-14,
11,
0,
27,
55,
16,
-2,
-25,
-26,
-32,
71,
55,
-5,
-2,
66,
60,
-14,
29,
-8,
1,
3,
38,
-7,
26,
-6,
-60,
40,
1,
-26,
-18,
92,
-39,
23,
-22,
7,
-2,
1,
35,
12,
0,
-26,
10,
-38,
26,
-22,
-8,
-16,
-16,
26,
10,
6,
8,
33,
-46,
43,
89,
21,
-27,
61,
6,
49,
-58,
-37,
1,
-7,
-63,
-12,
31,
-19,
27,
6,
65,
33,
-29,
23,
9,
-3,
-46,
19,
-48,
-10,
-74,
55,
-20,
-58,
-39,
20,
-16,
-50,
27,
58,
41,
-1,
22,
40,
-55,
4,
-47,
20,
-29,
-8,
-15,
35,
-5,
-56,
52,
-20,
-29,
-64,
-33,
-32,
2,
-21,
0,
-22,
-22,
45,
38,
31,
-61,
-5,
33,
24,
71,
19,
-46,
-23,
-49,
5,
-17,
9,
-29,
11,
57,
34,
-65,
-52,
1,
-30,
31,
9,
20,
-9,
4,
35,
-10,
-15,
26,
22,
-25,
-19,
-16,
-23,
1,
-23,
47,
-14,
-75,
-14,
-9,
-31,
29,
-38,
-3,
24,
31,
11,
-15,
-14,
8,
-56,
53,
-20,
74,
-1,
-33,
42,
16,
-39,
-15,
-15,
26,
-21,
20,
-36,
-3,
28,
42,
1,
-47,
-73,
14,
-5,
51,
-45,
20,
-20,
-32,
-49,
-58,
59,
7,
12,
3,
39,
41,
13,
8,
-1,
-27,
-38,
38,
-32,
-27,
3,
36,
-28,
-17,
-84,
-22,
72,
-4,
38,
-46,
21,
-27,
-11,
47,
51,
72,
10,
-45,
26,
-6
] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Appellant, Anthony J. Caprice, appeals from a property division and support judgment entered by the District Court, Eighteenth Judicial District, Gallatin County, without a jury, on July 11, 1977. Appellant filed his petition for dissolution of marriage on November 19, 1976. Respondent, Dorothy S. Caprice, answered and cross-petitioned for custody of their minor child and for child support, maintenance and attorney’s fees.
Two hearings were held in this matter, one on February 8, 1977, which resulted in the dissolution of the marriage and reserved for later disposition the issues of custody, support, maintenance, visita tion and determination of property rights. The second hearing was held on June 22, 1977, following which the District Court issued its findings of fact and conclusions of law and judgment. The District Court gave custody of the minor child to respondent and neither this nor the granting of the dissolution is contested in this appeal. However, the District Court’s division of the marital property is disputed and is the subject of this appeal, as is the court’s award of $450 child support and maintenance.
Appellant and respondent were married in 1961. They have one child, Anthony, Jr., age 14. During most of their marriage, the parties resided in the State of Maryland, where they owned a home and other real estate. In 1976, they moved to Bozeman, Montana, where appellant still resides. At the time of the property division, appellant was 50 years old and respondent was 56 years old.
Prior to the marriage, respondent was employed as a fashion merchandising manager in large east coast fashion department stores. She has a college degree and has done work on a post graduate level in executive management. She also has training in interior design. Respondent has not worked however, since 1962 other than to wash the linen from her husband’s beauty salon in Maryland. Respondent has claimed that illness is preventing her now from working although she admitted at trial she could work. At the time of the marriage, respondent owned an automobile and occupied a fully furnished six room apartment in which the couple moved after their marriage. Respondent’s automobile was later traded in on an automobile which in turn was traded for one of the vehicles involved in the property settlement.
Until the move to Montana, appellant’s principal occupation was part owner and operator of Caprice and George, Inc., a woman’s beauty salon in Chevy Chase, Maryland. He started that enterprise about the time of his marriage to respondent. His gross earnings in recent years except when incapacitated by illness, had been approximately $20,000-$22,00£) annually. Although- no longer actively involved in the business, appellant stills owns a 50 percent interest in the enterprise. Appellant is currently employed as a realtor in Bozeman, Montana and for the period January 1977 to June 1977 had grossed approximately $7,400 with expenses of $6,900 (including $2,000 of legal fees for litigation in which appellant was involved). During the marriage, the parties were able to acquire a home and a tree farm in Maryland.
In August 1975, appellant suffered a nervous breakdown brought about by financial, business and marital problems and was voluntarily hospitalized for a short period of time. Prior to his hospitalization, appellant gave to respondent his power of attorney.Appellant revoked it November 1975, while on a trip to New York following his release from hospitalization. During the effective period of the power of attorney, the sale of the tree farm was initiated by respondent. Additionally, respondent began and continued to manage the funds of the family, paying bills, handling travel expenses, etc.
The sale of the tree farm was consummated by respondent in December 1975. A sum of $68,823.77 was realized from that sale. All this money, except $30,000 was deposited by respondent in a checking and savings account with the First National Bank of Kensington, Maryland. Appellant was not a signer on this account. A sum of $20,000 of the $30,000 not deposited in that bank account was used by respondent to purchase a U.S. savings bond in her name and that of her son. Respondent claims this was for the child’s education. Appellant claims it was to serve as a “tax shelter”. The remaining $10,000 cash, respondent claims to have spent in repayment of loans taken from friends for living expenses during one of appellant’s prolonged absences from home and for other living expenses. Evidence was introduced at trial however, showing that checks were also written during this period to cover the same “living expenses”.
After appellant’s release from the hospital, and his return from New York, he did not go back to work at Caprice and George, Inc. Instead, the family including appellant, continued living solely from the proceeds of the sale of the tree farm until their house was sold in June 1976.
In December 1975, the entire family vacationed in Florida for several weeks, paying for expenses from the proceeds of the sale of the tree farm. During the period June to August 1976, the family took two trips to Montana for which respondent withdrew $ 15,000 of the funds on deposit in the First National Bank of Kensington. Some of this amount was also apparently used for living expenses and repayment of loans, according to respondent, and $5,000 of it was given upon his demand to appellant.
In June 1976, respondent completed the sale of the home in Maryland with appellant’s consent. A sum of $57,664.09 was realized from the sale. Of this amount, $5,000 was put into a joint checking account at Garret National Bank in Maryland and used for the benefit of both parties. The balance was deposited by respondent in the First National Bank of Kensington account. A certificate of deposit for the minor child in the amount of $ 10,000 was puchased with monies from this account and an additional $2,000 was withdrawn to be used on the first trip to Montana made by the family.
On August 17, 1976, $20,000 was withdrawn from the FNB of Kensington and deposited in the First National Bank of Bozeman, so the parties might purchase a home in Bozeman. On August 25, 1976, $2,000 was withdrawn from the FNB of Kensington by respondent in order to purchase a mink coat. The checking account in the FNB of Kensington was closed out by respondent in the sum of $8,318.12 on October 27, 1976. On November 17, 1976, the date of the filing of the dissolution petition by appellant, respondent closed out the savings account in the FNB of Kensington in the amount of $24,628.22. Respondent’s accounting for these latter two amounts, totalling almost $33,000 is vague. The only explanation was that there were withdrawals for “living expenses” for the period from November 1976 to the date of trial in June 1977. Respondent claimed at trial that those funds are now dissipated. Respondent also indicated in her testimony that she had removed the funds to keep them from appellant and in order to support herself and her son, and appellant may have taken part of the monies from her motel room. Appellant denies the latter claim.
The District Court in its findings and conclusions considered the duration of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability and needs of each of the parties. These are the pertinent factors to be considered under section 48-321, R.C.M. 1947, before the District Court may apportion the marital property. The District Court found that the funds which appellant claims were unaccounted for by respondent were spent for living expenses by respondent. Finding of fact No. 5, findings and conclusions dated June 30, 1977. The District Court divided the personal property between the two parties; awarded the condominium at 1409 South Willson, Bozeman, Montana, to respondent and directed respondent to assume and pay the indebtedness due thereon; divided equally the $30,000 then in certificates of deposit and U.S. savings bonds between appellant and respondent'; and by a further order of July 18, 1977, directed that approximately $4,000 in a savings account be used to make the payments on the condominium. The court awarded $250 per month maintenance and $200 per month support to respondent.
The issues presented in this appeal are two-fold: (l)did the District Court err as a matter of law in its division of the marital property by not crediting respondent with funds allegedly not accounted for, and (2) is there substantial credible evidence to support the District Court finding of fact that appellant has the ability to pay child support and maintenance totaling $450 per month? We hold the findings and conclusions of the District Court were supported by sufficient evidence with respect to these issues, and therefore the decision of the District Court is affirmed.
Appellant has argued that under this Court’s decisions in In re Marriage of Capener (1978), 177 Mont. 437, 582 P.2d 326; In re Marriage of Reilly (1978), 176 Mont. 239, 577 P.2d 840; and In re Marriage of Johnsrud (1977), 175 Mont. 117, 572 P.2d 902, man date a reversal and remand in the present case for more specific findings. We do not agree.
The concern expressed in the above mentioned cases, apart from the obvious necessity for compliance with Rule 52(a), M.R.Civ.P. and to insure an équitable division of marital property, is two-fold. First, this Court requires specific findings to insure an adequate record for appellate review so that the unhealthy situation of speculation as to reasons for findings and conclusions on appellant review will not occur. Capener, supra at 328; Johnsrud, supra at 905. Secondly, such findings are important to the parties to insure a proper basis for the District Court to act in the event of any subsequent modification proceedings. Capener, supra.
In the cited cases, this Court found the findings to be insufficient to form an adequate basis for review. The findings before us in this appeal are not in such a state. Admittedly, the District Court here did not make an item by item finding based on the pertinent factors in section 48-321, R.C.M. 1947, (though it would have been laudable had it done so), nevertheless we find the court did adequately consider those factors in section 48-321, R.C.M. 1947, as evidenced by the findings and conclusions.. Having determined the record as formulated below for review we now determine whether the District Court abused its discretion in making its property division and maintenance and support award. We are bound by the standard reiterated many times by this Court:
‘It is well settled in Montana that a district court has far reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of that discretion is shown . . . The criteria for reviewing the district court’s discretion is: Did the district court in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances . ..” Zell v. Zell (1977), 174 Mont. 216, 570 P.2d 33.
Appellant alleges respondent absconded with or has “stashed away” certain monies and the District Court abused its discretion by not crediting respondent with such funds in making the property division. Our review of the record does not reveal an abuse of discretion on the part of the District Court. The only direct evidence in the record of the dissipation of these funds is respondent’s testimony that she spent the monies on “living expenses”. Admittedly her testimony appears vague, however, “the District Court is in the best position to judge the weight and credibility of the witnesses, especially where there is a conflict to testimony. Miller v. Fox (1977), 174 Mont. 504, 571 P.2d 804.” Easton v. Easton (1978), 175 Mont. 416, 574 P.2d 989, 992. Further it is clear from the record that this family was accustomed to living on a cash basis and appellant, at least up until shortly before the petition for dissolution was filed, was participating in the family activities and thus involved in the incurrence and payment of living expenses. The sale of the family house which generated some of the monies in question was consummated obviously with appellant’s consent, as he had revoked his power of attorney almost six months previously. Therefore, we cannot conclude the District court abused its discretion when it made its specific finding that monies not accounted for were dissipated by expenditures for living expenses.
The second issue presented in this appeal questions whether substantial credible evidence existed to support the District Court’s award of maintenance and support. We find such evidence existed.
This Court’s duty in reviewing findings of fact in a civil action tried by the District Court without a jury "is confined to determining whether there is substantial credible evidence to support them.” Hornung v. Lagerquist (1970), 155 Mont. 412, 473 P.2d 541, 546; Butte Teachers’ Union v. Board of Education (1977), 173 Mont. 215, 567 P.2d 51, 53. “Substantial evidence” is evidence such “as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes the [prevailing party’s] case, and, if all reasonable men must conclude that the evidence does not establish such case, then it is not substantial evidence . . .” Staggers v. USF & G (1972), 159 Mont. 254, 496 P.2d 1161. (Citing Campeau v. Lewis (1965), 144 Mont. 543, 398 P.2d 960.) The evidence may be inherently weak and still be deemed “substantial” and substantial evidence may conflict with other evidence presented. Staggers, 496 P.2d at 1163. Furthermore, simply because the evidence furnishes reasonable grounds for different conclusions is not a reason for overturning the findings. Morgen & Oswood Construction Co. v. Big Sky of Montana (1976), 171 Mont. 268, 557 P.2d 1017, 1021. Gauged by these standards we do not find the evidence supporting the District Court’s finding as to maintenance and support to be so insubstantial as to warrant reversal.
The District Court awarded $250 per month maintenance and $200 child support. It based these amounts on its findings that respondent wife was 56 years old, suffers from physical ailments that would limit her ability to find employment and has not worked in the past 16 years. The Court found these factors made it unlikely respondent could find a job which could provide sufficient monies to support herself with the property she was to receive from the dissolution of the marriage. The District Court found, on the other hand, that appellant was employed as a real estate salesperson earning the sum of $15,000 per year, and was capable of earning more with more experience. Appellant argues this is an inap-. propriate finding because there was evidence only that appellant had earned $7,433.30 from January 1977 to June 13, 1977. However, the District Court had before it evidence that $7,000 was an average annual income for a realtor in Bozeman, that appellant had already eclipsed this in the first five months of his employment and that appellant was, in the estimation of his employer, aggressive and willing to work. We find therefore the District Court’s findings as to the amount of maintenance and support and appellant’s ability to pay such amounts were based on substantial credible evidence and will not be overturned.
In its findings of fact, the District Court said with respect to maintenance for the wife, “ . . . Respondent has need for $200 per month for maintenance . . .” However, in its conclusions, court allowed $250 per .month for maintenance for the wife, and judgment was entered for that sum. Appellant husband does not attack the conclusion on that discrepancy, other than to mention it in his argument that the evidence is insufficient for any award of maintenance. During oral agrument, it was stated that the $200 figure was a typographical error, but the record is otherwise bare as to what the District Court intended. The matter can be handled by allowing the District Court to amend one or the other figure to agree with its actual decision on maintenance.
Affirmed, with leave to the District Court to amend the judgment and findings upon application of either party as to the amount of maintenance to the wife so as to agree with the actual amount found by the District Court as necessary maintenance for the wife. Unless so amended within 15 days of remittitur, the judgment of the District Court is affirmed in all respects.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and SHEA concur.
|
[
-10,
8,
-12,
23,
-3,
-37,
-11,
32,
18,
-25,
5,
-27,
11,
17,
44,
-46,
1,
-9,
-8,
-17,
-15,
-8,
-22,
3,
63,
58,
-6,
-30,
-34,
12,
5,
-26,
-33,
-14,
-6,
-1,
13,
19,
-25,
-9,
-28,
-8,
-10,
5,
-24,
5,
22,
-36,
-42,
41,
20,
-56,
11,
-28,
10,
-1,
9,
12,
-50,
16,
30,
9,
3,
16,
14,
4,
70,
-5,
-11,
-26,
0,
-35,
-40,
-59,
14,
-76,
25,
-2,
-1,
29,
4,
-52,
32,
-7,
-3,
-14,
-40,
25,
-50,
17,
-17,
28,
-9,
-2,
-16,
27,
3,
-48,
41,
20,
-57,
-10,
8,
64,
-4,
20,
7,
-18,
-2,
6,
25,
-30,
17,
24,
6,
83,
-17,
-32,
28,
-33,
0,
-3,
-5,
12,
34,
-49,
-22,
33,
28,
9,
-26,
6,
40,
-35,
-22,
-29,
-7,
-58,
-20,
-10,
28,
-41,
37,
2,
37,
33,
-16,
-79,
-2,
-55,
10,
7,
1,
7,
104,
-1,
-2,
-33,
6,
-11,
7,
-14,
-49,
22,
-16,
-20,
-9,
30,
-15,
44,
27,
-10,
-52,
-27,
17,
-18,
-13,
32,
-19,
36,
-11,
31,
-20,
-42,
-1,
31,
44,
-16,
-42,
-48,
-40,
-30,
17,
-17,
12,
26,
38,
-5,
-43,
-2,
-43,
-6,
34,
52,
16,
10,
-16,
11,
27,
-20,
1,
12,
13,
-19,
-21,
-21,
-13,
-14,
-21,
21,
64,
-16,
-28,
-41,
-50,
-10,
-6,
17,
12,
-39,
-8,
15,
7,
-10,
14,
8,
-5,
-27,
-24,
37,
-35,
-44,
8,
-5,
-4,
55,
-21,
-22,
2,
32,
30,
-9,
-54,
50,
14,
-29,
38,
50,
-5,
0,
-3,
27,
0,
1,
-22,
-26,
-1,
-17,
12,
23,
32,
66,
42,
14,
5,
-1,
-3,
45,
8,
-6,
-3,
32,
-22,
-3,
-16,
51,
27,
-5,
29,
15,
-30,
-68,
8,
-14,
-12,
-31,
-33,
-33,
-63,
6,
48,
14,
19,
10,
1,
-5,
-53,
-30,
28,
-22,
3,
9,
34,
15,
29,
19,
16,
-16,
-7,
8,
24,
25,
7,
5,
-39,
-8,
45,
-25,
-46,
26,
3,
25,
4,
6,
10,
-70,
4,
31,
-20,
9,
-5,
-22,
19,
51,
-36,
7,
0,
18,
-16,
33,
-41,
1,
17,
-7,
-16,
-54,
18,
-43,
-18,
-11,
-7,
14,
0,
2,
-15,
24,
16,
-28,
33,
-12,
5,
10,
12,
49,
21,
-32,
22,
32,
-2,
19,
11,
-28,
11,
-13,
15,
8,
-10,
-6,
-26,
-24,
17,
0,
53,
28,
33,
19,
40,
-6,
13,
4,
-3,
41,
-30,
-13,
-18,
7,
15,
-5,
-55,
-9,
-29,
-55,
-43,
-3,
31,
38,
-3,
23,
-59,
28,
-36,
9,
9,
-35,
-37,
26,
-29,
-37,
-29,
4,
-15,
37,
-11,
15,
32,
-41,
20,
-3,
-13,
62,
-1,
24,
-3,
13,
-8,
-25,
-33,
34,
55,
18,
-15,
2,
0,
0,
-23,
-40,
18,
-8,
-35,
0,
44,
7,
8,
-17,
4,
-37,
-26,
-35,
-11,
-19,
-19,
4,
-27,
67,
34,
40,
-57,
-12,
-44,
-40,
-7,
-7,
-8,
33,
0,
0,
-31,
-23,
-12,
35,
-33,
-26,
-4,
-3,
18,
-46,
2,
-10,
6,
-57,
-17,
22,
29,
6,
-13,
-25,
-22,
-20,
-23,
31,
-3,
44,
49,
-20,
-25,
-21,
35,
26,
26,
30,
18,
28,
38,
-4,
35,
-9,
-2,
8,
-9,
-5,
-9,
50,
10,
5,
-22,
64,
13,
9,
39,
-2,
-9,
16,
-27,
-28,
-29,
56,
-20,
-33,
-11,
63,
47,
-65,
-18,
5,
32,
-51,
-39,
16,
-14,
-28,
29,
-3,
-31,
-28,
14,
-13,
-15,
-59,
2,
-8,
-70,
-34,
0,
-3,
34,
1,
-5,
16,
-40,
-28,
59,
40,
-14,
0,
-2,
-16,
26,
20,
8,
-2,
-27,
-16,
52,
21,
9,
-43,
-26,
-17,
-37,
-28,
-19,
-41,
7,
9,
-16,
14,
3,
18,
10,
-26,
19,
54,
-34,
-23,
7,
59,
-2,
-10,
52,
-16,
-9,
55,
22,
1,
6,
-22,
-31,
-1,
-2,
10,
2,
-4,
50,
-27,
4,
18,
43,
2,
-20,
-82,
43,
23,
-10,
11,
11,
18,
44,
-37,
36,
-63,
-10,
11,
-37,
-25,
40,
6,
57,
-93,
8,
-14,
20,
-25,
29,
21,
42,
-33,
0,
21,
-16,
45,
0,
20,
-12,
69,
35,
-1,
-4,
0,
24,
30,
-1,
-28,
-16,
46,
-26,
0,
48,
-32,
5,
-39,
-5,
21,
12,
15,
-55,
15,
19,
34,
-34,
14,
18,
-27,
-20,
-1,
5,
37,
-13,
-17,
-18,
0,
-45,
-24,
-18,
-19,
-65,
-5,
-1,
-33,
-33,
-10,
-41,
-25,
-40,
-47,
9,
0,
8,
-13,
-19,
-17,
41,
53,
-13,
11,
-18,
11,
15,
0,
0,
2,
20,
-15,
12,
80,
26,
28,
21,
-13,
-42,
17,
12,
27,
8,
-2,
-2,
-19,
31,
-4,
-11,
-15,
2,
17,
-35,
19,
20,
-36,
-21,
-24,
7,
-12,
12,
24,
-3,
-10,
-42,
-16,
4,
-1,
-3,
-51,
-2,
-13,
-9,
25,
-32,
-3,
45,
0,
28,
34,
1,
-36,
34,
-54,
-1,
-4,
-32,
44,
-4,
-29,
32,
105,
47,
17,
49,
20,
-30,
15,
-5,
17,
-2,
25,
39,
-10,
4,
-23,
-45,
12,
9,
-16,
35,
-61,
-1,
36,
33,
6,
-45,
33,
-11,
17,
53,
-5,
8,
-10,
-23,
4,
17,
-20,
-5,
13,
25,
-35,
-25,
-27,
54,
40,
37,
7,
78,
-19,
26,
8,
-9,
38,
40,
-21,
-44,
23,
44,
52,
63,
10,
-7,
-17,
-3,
-17,
38,
13,
35,
21,
2,
9,
-2,
0,
-26,
-26,
59,
-17,
17,
-10,
-13,
-48,
-20,
29,
-14,
12,
60,
10,
-10,
-45,
-11,
-41,
-9,
-10,
-51,
0,
3,
-46,
-16,
-64,
15,
18,
6,
3,
22,
-38,
30,
40,
42,
-28,
-8,
-11,
-12,
7,
-7,
5,
-8,
-1,
-31,
14,
-11,
-39,
-8,
16,
-38,
-29,
-23,
-28,
-17,
56,
25,
27,
-12,
-30,
-6,
10,
-21,
52,
14,
-36,
-8,
16,
-33,
34,
13,
52,
-13,
-37,
2,
-50,
-31,
19,
29,
47,
24,
50,
-17,
-40,
-4,
-16,
-67,
27,
-13,
15,
-36,
-31,
38,
12,
15,
3,
8,
-25,
-36,
-26,
2,
9,
37,
51,
52,
-11,
20,
12,
2,
-1,
4,
-7,
-26,
20,
-80,
-24,
14,
4,
-1,
15,
32,
30,
32,
-31,
26,
-31,
-51,
-24,
1,
-5,
-13,
-10,
-4,
27,
0,
33,
27,
-9,
17,
-12,
-12,
-18,
-26,
31,
5,
8,
-17,
4,
33,
-17
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Plaintiffs appeal from an order of the District Court, Powell County, dissolving a temporary restraining order, denying plaintiff’s motion for an injunction pendente lite, and adopting defendant’s proposed findings of fact and conclusions of law.
The action below involved three parties asserting conflicting water rights. The land involved is located in the Deer Lodge Valley in Powell County, approximately 8 miles south of Deer Lodge, Montana. All of the land is bounded on the west by Interstate 90 and on the east by the Clark Fork River. Defendant’s land is located south and adjacent to land previously owned by Mr. and Mrs. Raymond Johnson. The Johnson’s property has apparently passed to their daughter, Audrey Ragsdale. For clarity, this property will hereafter be referred to as-the Johnson-Ragsdale land. Plaintiffs’ land is situated immediately east of the Johnson-Ragsdale property. It is bounded on the immediate east by the Clark Fork River. All of the property slopes in a northeasterly direction toward the Clark Fork River.
In approximately 1955, defendant used a drag line to construct a drainage ditch on the western boundary of his property. This ditch is estimated to be 35 feet wide and five to seven feet deep; it extends about one mile north before turning due east into a smaller irrigation ditch. The smaller ditch runs along the northern boundary of defendant’s land.
In the past, the excess water from the Evans’ irrigation ditch emptied and drained onto the southeast corner of the JohnsonRagsdale property. From there, it flowed over the Johnson-Rags-dale property and onto the property owned by the plaintiffs. Plaintiffs and their predecessors in interest had, until 1970, utilized this water to irrigate their hay fields and pastureland.
In approximately 1971, defendant installed a sprinkler system on his property and discontinued using the water from his irrigation ditch. This action increased the volume of water flowing onto the Johnson-Ragsdale property and in turn, provided the plaintiffs with more water for their land. However, the additional water .caused extensive flooding and erosion of topsoil on the JohnsonRagsdale property.
To alleviate the destruction of their property, the Ragsdales built a drainage ditch across the western portion of their property. This ditch extended in a southerly direction until it merged with Evans’ drainage and irrigation ditches. At the intersection of the JohnsonRagsdale ditch and Evans’ irrigation and drainage ditches, Evans built a small earthen dam which diverted all of the water into the Johnson-Ragsdale ditch, to the eventual exclusion of the plaintiffs’ land. The Ragsdales then filed an application for water appropriation on all water flowing from the Evans’ ditch. With the dam in place, all water which normally flowed to the plaintiffs’ land had ceased. The Ragsdales have been using the water to operate their sprinkling system.
On several different occasions, the small earthen dam has become inoperable and water would resume flowing across the Johnson-Ragsdale property, to be later used by the plaintiffs. To permanently prevent the .water from flowing to the plaintiffs, Evans, in 1975, brought in heavy equipment and built a much larger, more permanent dam.
In response, the plaintiffs filed this action in Deer Lodge County to force the removal of the dam to allow the water to resume flowing to plaintiffs’ land. Contemporaneous with filing their complaint, the plaintiffs obtained a temporary injunction against defendant and scheduled a show cause hearing for June 14, 1976. The hearing was actually held on June 21, 1976, at which time the parties produced a total of five witnesses.
The District Court did not enter an official order after the June 21, 1976 hearing. Instead, the District Court judge apparently requested the parties submit proposed findings of fact and conclusions of law.
Defendant submitted his proposed findings and conclusions on August 5, 1976. The District Court adopted the defendant’s findings by making a notation at the bottom of the submitted document, and by signing the order which concluded as follows: “Adopted this 6th day of August, 1976. Let Judgment be entered accordingly.”
On August 19, 1976, thirteen days after the Court adopted defendant’s findings and conclusions, the plaintiffs submitted their proposed findings and conclusions, and they also filed an amended complaint. The amended complaint was substantially the same as the original except that in the amended complaint the plaintiffs had joined one additional defendant and also were more specific in their prayer for relief.
On September 10, 1976, defendant filed a motion to dismiss the amended complaint on the grounds it did not state a claim upon which relief could be granted. On September 27, 1976, without further action by the Court, defendant filed his answer, a'general denial of plaintiffs’ allegations. Defendant’s answer was the last action taken by either party.
On November 1, 1976, the District Court entered an order dissolving the temporary restraining order, denying plaintiffs’ motion for an injunction pendente lite, and adopting the defendant’s find ings of fact and conclusions of law. It is from this last order that plaintiffs appeal.
In their appeal the plaintiffs contend (1) that the District Court deprived the plaintiffs of substantive property rights in a summary hearing; (2) that the District Court made an adjudication of the relative rights and priorities of the parties; and (3) that the findings of fact and conclusions of law do not conform to the evidence presented by the parties.
Before addressing the specific issues presented by plaintiffs’ appeal, we must resolve one preliminary question. Some disagreement exists among the parties concerning the purpose of the June 21, 1976 hearing. The confusion stems from certain language used by plaintiffs in their complaint and show cause order. A review of the District Court files shows the prayer in plaintiffs’ original complaint sought a temporary restraining order, a show cause hearing and such further relief as this Court may deem proper. Then, in his order to show cause signed by another District judge, the plaintiffs used the phrase “show cause why he [defendant] should not be permanently restrained from interfering with said waters and diversions.” (Emphasis and brackets added.) Based on this language, defendant contends both parties understood the hearing on June 21st would be on the “merits” and would finally settle plaintiffs’ water right claim. We cannot accept this contention.
It is well settled that a temporary restraining order is an interlocutory order issued often on an ex parte basis. The restraining order is intended to preserve the status quo until a show cause hearing can be held. Electric Co-op Inc. v. Ferguson (1951), 124 Mont. 543, 554, 227 P.2d 597. A temporary restraining order is effective only for the reasonable time necessary to give notice and schedule a hearing to determine the appropriateness of an injunction pendente lite. State ex rel. Cook v. Dist. Court (1937), 105 Mont. 72, 75, 69 P.2d 746. See also: Boyer v. Karagacin (1978), 178 Mont. 26, 582 P.2d 1173.
We conclude that plaintiffs, in scheduling the show cause hearing for June 21, 1976, were trying to follow the standard pro cedures set up to obtain injunctions pendente lite. We can find no support for defendant’s position that the June 21, 1976 hearing was agreed or understood to be a hearing on the “merits” of plaintiffs’ claim. Absent clear evidence of an agreement or an understanding, we must assume plaintiffs intended the hearing to be limited to a finding on the appropriateness of an injunction pendente lite.
Having determined the purpose of the June 21 hearing, we turn now to the merits of plaintiffs’ assignments of error. For convenience, plaintiffs’ first and third assignments can be consolidated. Simply stated, plaintiffs contend the District Court should not have entered any findings of fact or conclusions of law. Plaintiffs take the position that any findings or conclusions dealing with the merits of their complaint are premature. They stress, although extensive testimony was received on June 21, 1976, the trial court did not receive enough evidence to resolve the merits of plaintiffs’ claim. Defendant, on the other hand, contends the evidence produced at the hearing was sufficient to support the findings and conclusions of the District Court.
After a careful examination of the conclusions of law, we believe plaintiffs are correct and the findings of fact and conclusions of law should be vacated. The conclusions, as adopted by the District Court, provide:'
“Plaintiffs have no water right to the water from the Evans ditch either by right of appropriation or by adverse use.
“That an appropriation as to this water was filed and completed by Raymond J. Johnson and Lillian M. Johnson and is first in time to any claim made by Plaintiffs.
“That Plaintiffs have no right to enter upon Defendant Evans property and in any way change, divert or alter the ditches located thereon.”
These conclusions were purportedly derived from evidence presented at the June 21, 1976 hearing and were entered on November 1, 1976.
We have already stated that the primary purpose of the June 21, 1976 hearing was to determine the propriety of an injunc tion pendente lite. It is well established that substantive property rights cannot be adjudicated in a summary way. Ryan v. Quinlan (1912), 45 Mont. 521, 124 P. 512. The general rule is that title to, or right of possession of real estate may not be litigated in an action for an injunction. Davis v. Burton (1952), 126 Mont. 137, 246 P.2d 236. In the same vein, water rights should not be resolved in a preliminary proceeding for injunctive relief.
The problems inherent in trying the merits of a case at an injunctive hearing are obvious. Typically, an injunction, or a motion for an injunction is filed very early in the proceedings, usually before discovery has been completed and often before the pleadings of the parties are complete. At such juncture, the District Courts normally do not have sufficient evidence to conclusively resolve the merits of the case. The present proceedings are a good example of why property rights should not be adjudicated in a summary fashion.
The hearing in this case was scheduled for June 21, 1976, only 11 days after the plaintiffs filed their original complaint. Indeed, because Rules 30 and 31, M.R.Civ.P., contain restrictions as to when discovery can be commenced, it does not appear that plaintiffs could have been prepared on June 21, 1976, for a final trial on the merits.
Additionally, we find defendant had not yet filed his answer on June 21, 1976. This last fact is significant because regardless of how defective plaintiffs’ first complaint may have been, under Rule 8, M.R.Civ.P., plaintiffs had an absolute right to amend their complaint prior to the time the answer was filed.
Accordingly, we hold plaintiffs’ allegations were not ripe for final decision on June 21, 1976. The trial court should have limited its inquiry to the appropriateness of an injunction pendente lite. Since its inquiry and subsequent decision went beyond these limits, the findings of fact and conclusions of law must be vacated.
We note that plaintiffs later filed an amended complaint in this action. The new complaint raises the possibility that plaintiffs may recover if they can establish a valid water right. Under the circumstances recovery can possibly be predicated on section 89-801, R.C.M.1947, which was in effect during the crucial time periods involved in this case. That section allows “waste” water to be appropriated if the requisites of the statute are met. The plaintiffs, of course, bear the burden to prove a valid appropriation and any discussion of the merits of their claim would be premature. Today’s decision simply vacates the findings of fact and conclusions of law entered by the District Court. Additionally, since plaintiffs did not challenge the denial of their motion for an injunction pendente lite, the trial court’s determination on the matter is affirmed.
The order is vacated and this case is remanded to the District Court for proceedings consistent with this opinion.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, DALY and SHEEHY concur.
|
[
-18,
82,
19,
-10,
-34,
-4,
9,
56,
12,
53,
-9,
-4,
31,
-36,
11,
-47,
-81,
-40,
13,
8,
29,
21,
-18,
-37,
36,
39,
-1,
-22,
-22,
39,
-32,
14,
-3,
-53,
14,
10,
-22,
71,
-27,
-32,
12,
-18,
9,
-52,
39,
40,
27,
-7,
-15,
13,
7,
-25,
-1,
1,
-33,
30,
-2,
-35,
-51,
-22,
-35,
-2,
45,
11,
46,
9,
-15,
1,
18,
-28,
-25,
0,
-8,
-67,
-4,
-10,
43,
-17,
-22,
-12,
-42,
41,
42,
-10,
-23,
-29,
-26,
-24,
28,
5,
-44,
-24,
13,
-18,
10,
-18,
2,
-17,
-24,
0,
-35,
-21,
53,
43,
-27,
-59,
-25,
-21,
40,
-4,
11,
9,
-13,
-2,
-14,
-19,
38,
0,
27,
-11,
-21,
8,
19,
16,
-66,
6,
-2,
-13,
2,
26,
10,
-41,
5,
0,
34,
1,
-11,
-23,
1,
14,
-5,
6,
33,
-1,
-25,
42,
48,
-32,
-40,
-36,
18,
31,
8,
13,
41,
-14,
47,
-24,
21,
26,
23,
32,
-21,
-13,
-44,
40,
-2,
-5,
-29,
-5,
82,
-38,
-14,
-3,
7,
-11,
-39,
-21,
42,
37,
36,
-8,
33,
-6,
-63,
-10,
29,
-8,
-21,
72,
-14,
-51,
25,
-11,
-11,
20,
17,
-17,
-10,
-12,
30,
35,
24,
-3,
10,
-14,
26,
13,
34,
9,
10,
10,
10,
-2,
-28,
-15,
34,
-1,
-15,
-23,
52,
22,
-3,
18,
-8,
-15,
-1,
-32,
18,
-26,
-10,
8,
23,
55,
13,
-18,
-22,
40,
-31,
-33,
-6,
-21,
-28,
28,
38,
4,
-60,
-20,
12,
44,
-29,
-46,
-12,
53,
22,
17,
46,
24,
-16,
-27,
18,
-5,
8,
-39,
38,
-17,
-73,
3,
2,
-12,
-27,
-2,
39,
-31,
-19,
-58,
17,
27,
-5,
23,
-8,
30,
-35,
-27,
24,
56,
14,
17,
-4,
40,
-26,
-12,
5,
-19,
7,
-4,
6,
-37,
-4,
-13,
12,
-1,
-31,
-15,
10,
3,
-7,
32,
27,
27,
5,
24,
-54,
11,
-81,
14,
-43,
-4,
17,
-6,
20,
21,
6,
-4,
-21,
43,
1,
6,
8,
44,
-33,
17,
-31,
5,
67,
-10,
42,
-24,
1,
44,
-3,
-39,
31,
18,
28,
43,
21,
-10,
-27,
10,
-44,
27,
10,
35,
-8,
-79,
-38,
5,
-25,
-21,
6,
9,
-23,
-28,
-4,
-14,
39,
-10,
-13,
-17,
-35,
38,
32,
20,
57,
2,
0,
9,
-33,
24,
7,
-47,
48,
6,
50,
12,
-3,
-11,
-57,
38,
-5,
-52,
-14,
57,
11,
0,
24,
-4,
16,
-9,
4,
13,
8,
0,
-54,
44,
12,
-45,
-10,
-23,
0,
-31,
-25,
-18,
2,
35,
6,
36,
-10,
20,
-10,
-38,
-4,
-30,
16,
2,
56,
-36,
-29,
43,
-8,
45,
-13,
32,
28,
-3,
-30,
29,
-67,
31,
-7,
13,
-6,
-38,
-55,
-11,
-2,
5,
18,
0,
-1,
28,
-51,
-6,
-26,
16,
50,
-4,
-2,
-32,
-21,
27,
20,
4,
-16,
-4,
15,
-22,
-3,
6,
23,
83,
23,
18,
18,
-3,
-24,
46,
-57,
-10,
53,
-8,
-34,
-25,
0,
13,
-3,
25,
41,
27,
3,
0,
20,
-32,
0,
-8,
3,
16,
-8,
-12,
35,
11,
0,
30,
-26,
-5,
-50,
35,
-24,
68,
51,
-35,
39,
-43,
-68,
29,
52,
-27,
27,
47,
36,
0,
1,
4,
-20,
15,
-70,
9,
65,
48,
-6,
29,
-18,
-33,
-31,
3,
1,
41,
12,
-22,
-8,
-5,
35,
32,
-57,
-9,
13,
-45,
8,
-12,
17,
-1,
-8,
24,
-16,
21,
-58,
-62,
5,
-16,
22,
26,
-2,
-5,
15,
16,
26,
0,
20,
41,
1,
28,
12,
-40,
67,
0,
-31,
0,
-31,
62,
-15,
-42,
-35,
-14,
-31,
34,
55,
-18,
9,
48,
3,
-31,
-18,
-16,
-20,
-52,
3,
-36,
-33,
17,
29,
-32,
-27,
-2,
52,
10,
21,
-60,
-3,
19,
-49,
10,
-15,
47,
62,
36,
48,
-82,
32,
-35,
-20,
-33,
6,
17,
-31,
4,
-67,
46,
-17,
24,
-33,
-4,
-2,
-43,
48,
6,
-19,
1,
-40,
-3,
31,
30,
-19,
12,
-24,
-28,
27,
-48,
26,
-38,
0,
46,
11,
-36,
48,
-25,
33,
-23,
33,
1,
58,
-24,
-16,
-23,
-49,
17,
15,
65,
-52,
25,
33,
-11,
-12,
19,
30,
-22,
29,
1,
35,
11,
26,
-36,
-22,
-36,
70,
-11,
67,
5,
18,
71,
32,
14,
-16,
2,
-25,
-24,
6,
15,
-72,
-38,
19,
-31,
47,
-10,
18,
9,
-14,
-28,
-1,
34,
-14,
-27,
41,
17,
-34,
-50,
-41,
-37,
-29,
-2,
-7,
-24,
-27,
-17,
16,
-20,
-33,
0,
-30,
12,
-4,
62,
-13,
46,
12,
15,
13,
46,
0,
-10,
51,
-12,
7,
14,
-24,
-8,
53,
-20,
14,
-13,
20,
-22,
-18,
-38,
-83,
-34,
-5,
-1,
-38,
-2,
40,
21,
-45,
1,
18,
-47,
4,
-36,
-7,
28,
32,
28,
1,
-45,
10,
6,
-46,
-15,
12,
8,
1,
-37,
0,
-57,
-18,
-25,
28,
-8,
-3,
5,
-46,
-32,
-8,
-43,
0,
-3,
-2,
25,
-43,
-2,
-3,
16,
6,
59,
10,
-26,
-14,
3,
-24,
-14,
-1,
-5,
42,
-13,
-9,
-14,
-56,
13,
26,
-51,
4,
-13,
-5,
-3,
75,
8,
16,
-26,
-4,
33,
30,
-31,
20,
37,
-19,
-12,
62,
12,
-1,
5,
-11,
-4,
-35,
-42,
25,
17,
6,
20,
3,
24,
11,
-18,
6,
29,
-1,
-12,
-34,
-12,
-5,
41,
45,
5,
32,
10,
-27,
10,
27,
13,
-54,
13,
-24,
-10,
-3,
31,
-15,
8,
-45,
-11,
23,
-47,
-17,
-15,
-33,
27,
-46,
-1,
3,
63,
-3,
19,
39,
-51,
-13,
29,
2,
60,
-7,
-17,
1,
-20,
8,
14,
-15,
16,
-11,
-43,
-13,
13,
20,
-19,
-48,
-21,
20,
-4,
-18,
-23,
-6,
-34,
-14,
69,
15,
26,
-19,
1,
-56,
38,
-42,
14,
-32,
37,
-36,
0,
-11,
-22,
-47,
18,
5,
-8,
-16,
-47,
-1,
-33,
40,
20,
22,
-12,
13,
-57,
-43,
-20,
-21,
27,
1,
24,
59,
-64,
-40,
28,
46,
-44,
-43,
37,
-48,
14,
-35,
-10,
40,
20,
-24,
16,
-14,
-61,
-2,
-19,
8,
19,
58,
40,
9,
-59,
0,
-5,
10,
-17,
9,
59,
1,
-1,
-7,
-23,
0,
37,
-2,
-20,
34,
28,
-90,
-22,
-18,
-25,
1,
18,
-25,
42,
43,
34,
14,
1,
31,
-11,
-45,
-41,
21,
-39,
-38,
41,
-14,
24,
-18,
32,
-5,
-18,
-18,
38
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Plaintiff appeals from a judgment of the Lincoln County District Court that the Public Service Commission did not have jurisdiction over municipal sewage systems and the sewage rates as set by the Town of Eureka were not arbitrary or discriminatory. We hold the Public Service Commission does have jurisdiction over municipal sewage rates and accordingly, the issue of fairness of the sewage rates is one the Public Service Commission must determine.
The dispute arose because of the disparity between sewage rates charged for residential users as opposed to the rates and formulas charged to commercial users. The Town of Eureka is presently allowed to dump its sewage pollutants into the Tobacco River. By June 1979, however, the Town must upgrade its sewage treatment facilities to comply with standards enforced by the Montana Water Quality Bureau, Department of Natural Resources. The Eureka Town Council has determined the 1979 standards will necessitate the construction of one additional acerated lagoon-type treatment plant. The new plant will cost approximately $652,000. .
The United States Environmental Protection Agency has awarded the Town a grant of $447,000 to defray the cost of the new plant. The Town decided to raise the remaining $175,000 in estimated costs by using Revenue Bonds pursuant to section 11-2401 et seq., R.C.M.1947. It was also determined these bonds would be funded by an increase in the Eureka sewage rates.
Under the increased sewage rates, residential users will be charged a flat rate of $7 per month, based on an estimated usage of 350 gallons of water per day. Eureka businesses, on the other hand, will be charged individually computed rates, based upon the estimated daily water use of the business. For example, if the city estimates a business will use 700 gallons of water per day, the business will be charged $ 14 per month, or twice the flat rate charged a residential user.
Plaintiff, Kenneth Gwynn, owns and operates the only laundromat in Eureka, Montana. His business presently utilizes thirty (30) coin-operated washing machines. The Town initially estimated these machines would use 500 gallons of water per machine per day, or a total business usage of 15,000 gallons of water per day. The initial estimate was later revised downward when the engineers monitored Gwynn’s water meter and determined the laundromat would use an average of 13,200 gallons per day. The revised figure represents a business usage which is 38.05 times greater than the average residential user. Accordingly, the Town of Eureka has been billing Gwynn’s Laundromat $266.35 per month (38.05 x $7).
Plaintiff refused to pay his monthly sewage charges and instituted this action against the Town of Eureka and the Public Service Commission seeking to enjoin the Town of Eureka from increasing its sewage rates without prior approval of the Public Service Commission. In the alternative, plaintiff asked the District Court to declare the rates already assessed null and void. In its conclusions, the District Court ruled, “that the Montana Public Service Commission has no jurisdiction over the charges and increases of the sewer rates as established by the Town of Eureka” and “that the sewage rate as established by the Town of Eureka for Plaintiff’s laundromat is fair and equitable and is not arbitrary or discriminatory.” There is no mention in the findings or conclusions of section 11-1101, R.C.M.1947, which expressly refers to sewage services as public utilities.-Since we determine the Public Service Commission does have jurisdiction over sewer rates, the issue of fairness of the rates is one that initially must be determined by the Public Service Commission.
It is a basic rule of law that Public Service Commission, as an administrative agency, has only those powers specifically conferred upon it by the Legislature and in determining those statutory powers, this Court must give effect to every word, phrase, clause or sentence therein, if it is possible to do so. Polson v. Public Service Commission (1970), 155 Mont. 464, 469, 473 P.2d 508. The conferral of jurisdiction on the Public Service Commission was clear and direct:
“A public service commission is hereby created whose duty it shall be to supervise and regulate the operations of the public utilities hereafter named; * * *” Section 70-101, R.C.M. 1947.
Defendants argue the furnishing of sewage services is not a “public utility” as that term is defined in section 70-103, R.C.M. 1947. Based on this premise, defendants conclude the Public Service Commission cannot interfere in matters related to s.ewage rates.
It is true sewage services are not expressly mentioned as a public utility in section 70-103, but the legislature has subsequently passed other statutes which must be construed together with section 70-103. Section 70-103 is a general statute setting forth the initial confines of the Public Service Commission’s jurisdiction. More recent statutes expand the jurisdiction of the Commission to include sewage rates. When such expansion takes place, “the sections are to be taken together and construed in pari materia. For purposes of construction, they are to be considered as forming one homogenous and consistent body of law.” Special Road Dist. No. 8 v. Millis (1927), 81 Mont. 86, 91, 261 P.885, 887. “When the special statute is later, it will be regarded as an exception to or qualification of the prior general one.” Id. 98, 261 P. 890.
The Montana Legislature, in ¿mending section 11-1001, R.C.M. 1947, expressly referred to sewage services as public utilities. Section 11-1001 provides.
“11-1001. Authorization of cities and towns to furnish water and sewage service to industries and to persons without city limits-rates -penalty for violations. (l)The city or town council of any city or town within the state of Montana, that owns and operates a municipal water system and/or a municipal sewage system, to furnish water and/or sewage services to the inhabitants of such city or town, as a public utility, shall, in addition to all other powers, have power to furnish water from such water system and sewage services from such sewage system, to any person, factory or other industry, located within the corporate limits of such city or town, or to any person, factory or other industry located outside the corporate limits of such city or town, at reasonable rates filed by the city or town council and approved by the public service commission [provided that delivery of water and delivery of sewage services by any such city or town] to or for the use of any person, factory or other industry located outsidé the corporate limits of such city or town shall be made within, or at the boundary line of the corporate limits of such city or town, or from any existing water line or sewer line of such city or town located outside of the corporate limits of such city or town, except as hereinafter provided.
“(2)The city council of any city within the state of Montana that owns and operates a municipal water system and/or a municipal sewer services to the inhabitants of such city, as a public utility, shall, in addition to all other powers, have power to furnish water from such water system and sewage services from such sewer system to the inhabitants or to any person, factory, industry or producer of farm or other products located outside of the corporate limits of such city, at reasonable rates filed by the city or town council and approved, when otherwise required by statute, by the public service commission and such city council is further empowered to make collections for furnishing water and sewer services in the same manner as collections are made within the corporate limits. * * *” (Emphasis added).
It is clear section 11-1001, R.C.M. 1947, now has given the Public Service Commission jurisdiction over municipal sewage rates. If we were to read this amendment any other way, as the Town of Eureka and the Public Service Commission asks us to do, the language added by the 1971 amendment would be rendered meaningless.
It is general rule of construction that a legislature in adopting an amendment, is presumed to intend some change in the existing law, and the Court will endeavor to give effect to that amendment. State ex rel. Jones v. Giles (1975), 168 Mont. 130, 541 P.2d 355; State ex rel. Irvin v. Anderson (1974), 164 Mont. 513, 525 P.2d 564; State v. Hays (1929), 86 Mont. 58, 282 P. 32.
The language contained in section 11-1001 indicates the Legislature intended to place municipal sewage systems within the jurisdiction of the Public Service Commission. Such an interpretation squares with the presumption that the Legislature intended a change in the existing law. By using the phrase “as a public utility” within the body of section 11-1001(1), (2), R.C.M. 1947, the Legislature equated municipal sewage plants with the other easily recognizable public utilities. Accordingly, section 11-1001 made PSC approval of sewage rates a condition precedent to the institution of those rates. Any other interpretation would render the amendments meaningless.
There is no legislative history showing why the 1971 Legislature included minicipal sewage plants within the jurisdiction of the Public Service Commission. One consideration certainly could have been that water systems and sewage systems are so inextricably related. For example, section 11-2217, R.C.M. 1947, provides for collection of sewage charges by authorizing the termination of water services to premises with unpaid sewer charges. Conceivably, the Legislature recognized the potential for widespread abuse and took steps to head off such abuses.
The parties stipulated Gwynn’s laundromat is located within the Town of Eureka. Section 11-1001(1), R.C.M.1947, by express terms, applies to sewage rates charged to users both “within” and “outside the corporate limits of such city and town”. The language of section 11-1001(1) is clear. The Town of Eureka must enact “reasonable rates filed by the city or town council and approved by the Public Service Commission.” Accordingly, the Town of Eureka had no authority to unilaterally set its own rates. It was required to file its sewage rates for approval by the Public Service Commission. Absent Commission approval, the rates assessed cannot take effect against plaintiff’s business.
The Town of Eureka argues 11-1001(2) applies, rather than 11-1001(1). Section 11-1001(2), however, applies only to users outside the limits of the Town of Eureka. Here the parties stipulate the laundromat lies within the limits of the Town of Eureka. Section 11-1001(1) applies to users both inside and outside the municipal boundaries. It would appear that because of amendments in 1955, 1957, 1965 and 1971, the remaining vitality of section 11-1001(2), is simply to allow the municipalities to collect sewage or water fees from persons located beyond the boundaries of the municipality who obtain sewage or water services
The judgment of the District Court is reversed. We remand this case to the District Court with directions to issue the appropriate orders.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, DALY and SHEEHY concur.
|
[
12,
35,
7,
-43,
24,
22,
52,
-10,
5,
51,
39,
-14,
50,
18,
0,
-42,
-41,
-49,
14,
-25,
10,
30,
-3,
-16,
-3,
97,
42,
-14,
-24,
13,
-4,
0,
-11,
27,
14,
69,
-60,
57,
-10,
-31,
30,
-28,
-7,
-19,
13,
73,
3,
11,
-35,
-3,
-28,
16,
-15,
-18,
-14,
-50,
-38,
-23,
-91,
-3,
-31,
-31,
-1,
21,
50,
79,
-2,
3,
66,
-8,
-11,
6,
0,
-50,
50,
-8,
0,
-53,
-39,
-3,
-102,
10,
-8,
7,
-49,
-16,
-56,
-57,
61,
24,
39,
-1,
35,
17,
-17,
24,
-38,
-23,
1,
6,
-10,
8,
-8,
43,
-5,
-13,
-15,
-16,
6,
27,
-50,
27,
-34,
-83,
-21,
50,
24,
38,
-18,
28,
-20,
19,
8,
-37,
-84,
-36,
16,
17,
-36,
18,
-21,
6,
33,
-40,
26,
19,
-15,
32,
4,
54,
19,
-12,
-3,
20,
-6,
63,
45,
-19,
-44,
-29,
7,
-1,
21,
26,
1,
-19,
42,
-62,
6,
37,
-15,
14,
10,
-43,
-39,
11,
24,
-28,
-1,
-32,
11,
-30,
15,
16,
28,
-5,
-13,
-38,
6,
-50,
-16,
-66,
-41,
8,
43,
67,
43,
-52,
20,
-6,
51,
-15,
-4,
-33,
-55,
2,
83,
11,
-56,
1,
-11,
11,
-4,
11,
19,
22,
-33,
-43,
-13,
-36,
75,
21,
-27,
-12,
-5,
35,
56,
-16,
-4,
-20,
1,
-20,
3,
-31,
-12,
7,
-21,
-4,
71,
-32,
-18,
-16,
9,
10,
5,
20,
3,
32,
-14,
11,
1,
45,
15,
-20,
0,
-8,
-75,
-44,
-93,
30,
-18,
-100,
44,
51,
0,
27,
35,
22,
16,
-6,
23,
40,
9,
4,
5,
-37,
-26,
-7,
44,
15,
-19,
52,
31,
4,
-37,
-19,
22,
-31,
6,
4,
-31,
-79,
25,
-8,
47,
13,
-46,
-19,
-6,
-4,
-16,
33,
-1,
-5,
23,
17,
64,
0,
-14,
-17,
-13,
-17,
25,
54,
7,
53,
-18,
88,
23,
48,
-4,
-3,
-51,
56,
-1,
-17,
-35,
14,
18,
35,
47,
6,
28,
26,
-57,
-15,
7,
27,
30,
6,
22,
-13,
-29,
15,
58,
-42,
-18,
-31,
-26,
-33,
41,
-15,
16,
-4,
10,
1,
-12,
13,
-46,
-45,
-55,
56,
0,
84,
11,
-7,
-21,
16,
-64,
0,
50,
58,
-70,
-63,
-45,
-9,
38,
-8,
-7,
30,
-28,
-11,
-38,
4,
41,
15,
-7,
12,
-28,
-8,
28,
-16,
-30,
-26,
14,
48,
43,
-19,
-58,
-41,
32,
-15,
-46,
79,
46,
11,
-19,
-25,
-28,
-11,
28,
-1,
-26,
39,
57,
18,
-1,
-3,
19,
-15,
-38,
-67,
-13,
5,
-43,
44,
20,
-19,
20,
17,
59,
8,
7,
22,
5,
-26,
21,
-6,
-7,
9,
-54,
40,
-41,
-58,
-51,
5,
10,
-22,
-42,
14,
27,
47,
-20,
-49,
13,
-23,
25,
21,
49,
-17,
-11,
8,
-15,
28,
-5,
42,
6,
-7,
6,
9,
-42,
69,
-1,
-34,
-2,
-36,
40,
47,
3,
10,
-64,
81,
57,
-13,
22,
15,
-9,
46,
-8,
-26,
59,
-16,
-35,
-45,
53,
-29,
7,
0,
-18,
49,
51,
-16,
-30,
-31,
96,
10,
47,
-12,
18,
-6,
13,
-62,
-7,
-32,
-93,
-66,
-41,
47,
0,
-29,
45,
29,
36,
-42,
-47,
-4,
39,
-25,
-4,
43,
0,
9,
-15,
0,
0,
5,
-9,
0,
44,
-54,
-7,
-7,
-32,
-3,
-30,
-58,
15,
17,
47,
-16,
71,
38,
-42,
0,
-20,
10,
-38,
-57,
3,
1,
-12,
14,
-17,
10,
-4,
21,
-55,
-43,
25,
5,
-7,
50,
-19,
6,
-9,
-13,
10,
9,
50,
18,
-4,
27,
-3,
-51,
-8,
-29,
-40,
-32,
21,
33,
-23,
-71,
-16,
-22,
-36,
39,
16,
11,
-42,
11,
-20,
19,
-40,
9,
6,
-2,
1,
-26,
-12,
-10,
33,
-43,
0,
-11,
-10,
15,
9,
-36,
-34,
60,
9,
66,
-10,
39,
41,
35,
21,
-45,
54,
-49,
6,
1,
-2,
46,
-1,
-20,
-36,
-28,
-17,
58,
-37,
-49,
-18,
-11,
19,
-40,
52,
26,
22,
-24,
11,
-21,
-39,
-69,
-19,
16,
32,
32,
-3,
19,
26,
41,
2,
0,
-21,
39,
-24,
-38,
40,
15,
45,
-12,
14,
27,
-44,
27,
32,
-16,
5,
-10,
-3,
-27,
-25,
22,
26,
-45,
2,
-43,
-1,
11,
11,
-13,
-26,
-42,
-10,
-7,
34,
39,
0,
-41,
7,
2,
-35,
27,
37,
-5,
-14,
18,
-57,
30,
-19,
-17,
29,
37,
-43,
65,
31,
-34,
-43,
-3,
14,
-50,
38,
6,
8,
-76,
-64,
26,
-10,
21,
-2,
-71,
-44,
30,
24,
-26,
-34,
19,
-121,
58,
-33,
46,
4,
47,
15,
24,
-1,
8,
-38,
-35,
11,
0,
23,
28,
-58,
10,
20,
-40,
-60,
30,
-24,
-63,
-1,
-33,
-16,
-13,
-11,
35,
-12,
-4,
51,
9,
11,
27,
34,
5,
31,
-2,
-20,
59,
-12,
26,
-10,
-49,
58,
10,
-20,
-40,
0,
23,
-34,
4,
-5,
18,
-64,
-13,
14,
-11,
1,
-2,
-56,
19,
36,
-7,
-22,
21,
-19,
27,
-4,
-52,
0,
30,
5,
-16,
-32,
-29,
-8,
-65,
-43,
-21,
-69,
-21,
47,
6,
83,
-76,
-11,
27,
-58,
1,
-10,
-16,
9,
-5,
-6,
-19,
10,
32,
-40,
9,
45,
15,
-17,
41,
-39,
49,
-8,
12,
-14,
-28,
-66,
-53,
27,
8,
28,
4,
-22,
-14,
-4,
50,
-15,
17,
9,
22,
38,
26,
-37,
-12,
36,
29,
50,
71,
37,
28,
-18,
-27,
19,
24,
-38,
-25,
9,
4,
6,
-6,
-5,
-7,
-46,
45,
47,
-51,
-34,
-15,
38,
-3,
32,
-19,
-41,
76,
3,
46,
27,
-45,
25,
-21,
-36,
-40,
6,
-42,
30,
-59,
24,
-6,
-3,
7,
-43,
-33,
-52,
-48,
21,
71,
-30,
4,
38,
0,
-8,
1,
9,
-1,
10,
57,
-17,
8,
23,
44,
-27,
18,
-74,
-14,
-30,
37,
-50,
-17,
34,
76,
-5,
39,
18,
39,
14,
-33,
-8,
10,
63,
2,
-15,
-5,
-3,
-30,
53,
21,
12,
17,
40,
24,
17,
-51,
-14,
79,
-20,
-3,
-29,
-20,
21,
2,
-28,
-30,
1,
14,
-16,
-10,
-16,
7,
2,
-25,
-25,
-27,
-6,
6,
55,
14,
-12,
-6,
38,
30,
-24,
-17,
-37,
-50,
29,
49,
15,
21,
28,
-40,
20,
-57,
-14,
6,
32,
-36,
30,
94,
-93,
-3,
36,
-26,
62,
-36,
46,
-25,
-47,
61,
6,
-9,
-8,
-22,
-11,
27,
-33,
8,
7,
53,
-64,
9
] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
Employer (Zook Brothers Construction Co.) and Plan II insurer (Argonaut Insurance Co.) appeal from the Workers’ Compensation Court’s amended findings of fact, conclusions of law, and judgment of January 25, 1978, finding claimant to be permanently and totally disabled and awarding him compensation, attorney fees, and costs.
This appeal marks the second time these parties have been before this Court. On August 31, 1977, this Court rendered its opinion in Jensen v. Zook Brothers Construction Co. (1977), 174 Mont. 78, 568 P.2d 555. That opinion was limited to remanding the case to the Workers’ Compensation Court for clarification of its findings and conclusions.
On August 28, 1974, claimant Harlen Jensen, who was employed by Zook Brothers Construction Co., received a severe crushing injury to his left hand which arose out of and in the course of his employment. Insurer accepted liability and paid him weekly temporary total disability benefits pursuant to section 92-701.1, R.C.M. 1947, through October 4, 1975. At that time insurer began permanent partial disability payments until March 26, 1976, when it terminated all payments.
Claimant petitioned the Workers’ Compensation Court for a hearing on the termination of his benefits. A hearing was held on August 31, 1976, which resulted in findings of fact and conclusions of law that claimant was “totally disabled within the meaning of the Workers’ Compensation Law” and insurer was “liable to the claimant for all compensation provided by the Workers’ Compensation Laws of the State of Montana.” It was from this original judgment that insurer appealed. In that appeal, this Court held that the judgment of the lower court was incomplete and failed to provide a final judgment capable of being reviewed on appeal. Therefore, the cause was remanded for clarification. Jensen v. Zook Brothers Construction Co., supra.
On remand, the Workers’ Compensation Court found that “Claimant is permanently and totally disabled within the meaning of section 92-441, R.C.M. 1947” and that insurer was liable to claimant for weekly compensation benefits as provided for in section 92-702.1, R.C.M. 1947. Insurer brings this appeal from this judgment.
On appeal, insurer raises the following issues:
1. Sufficiency of the evidence to support a finding of permanent total disability.
2. Is claimant limited to 200 weeks compensation under the specific injury statute (section 92-709, R.C.M. 1947)?
The standard of review applicable in determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Court has been stated in this language:
“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn the decision.” Steffes v. 93 Leasing Co. Inc. (U. S. F. & G.) (1978), 177 Mont. 83, 580 P.2d 450, 452.
In accord: Hayes v. J.M.S. Construction (Aetna Insurance Co.) (1978), 176 Mont. 513, 579 P.2d 1225; Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67; Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 571 P.2d 372.
Applying this standard of review to the evidence in this case, we note that the evidence shows that claimant’s injury was to his left hand and he is left-handed. Claimant testified that he has only worked on a ranch or on construction, and that as a result of his hand injury he can no longer do this type of work. Claimant cannot throw a rope or build and repair fences due to his injury. Claimant testified that when he uses his left hand he has pain up his arm to his elbow.
However, insurer maintains that because claimant has been able to do odd jobs since the injury, he is not permanently and totally disabled. Claimant testified that he had done some odd jobs for friends and relatives, such as back tagging cattle, driving a Cat, haying and other odd jobs. He also testified that he had difficulty performing these jobs and he could not perform them for any length of time.
We hold that this evidence is sufficient to support the finding of the Workers’ Compensation Court that claimant is permanently and totally disabled despite the fact that he can and has done various odd jobs. As we have said before:
“* * * a man with a stiffened arm or damaged back or badly weakened eye will presumably have a harder time doing his work well and meeting the competition of young and healthy men. When a man stands before the Workers’ Compensation Court with proven permanent physical injuries, for which the exclusive remedy clause has abolished all possibility of common-law damages, it is not justifiable to tell him he has undergone no impairment of earning capacity, solely on the strength of current pay checks.” Fermo v. Superline Products (1978), 175 Mont. 245, 574 P.2d 251, 253.
Because claimant can perform a few odd jobs for short periods of time does not preclude a finding that claimant is totally and permanently disabled. This is especially true where, as here, the evidence shows that the claimant must work with a substantial degree of pain.
Where there is evidence of continuing pain from the injury, we have stated the rule:
“The evidence shows that * * * claimant cannot work without pain and he cannot endure the pain to work. This constitutes substantial evidence supporting a finding of total permanent disability.” Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67, 72.
Here, claimant testified that he was suffering from pain; that he could endure the pain in. his hand when he was not using it; but that when he used it, the pain increased and went up his arm. To do any job, claimant would have to use his hand.and would be in pain. The evidence shows that he cannot work without pain and he cannot endure the pain to work.
Insurer, however, argues that the medical evidence does not support a finding of total permanent disability. Insurer contends that all of the doctors who have examined claimant’s hand have determined that his injury has healed. One of those doctors did recommend additional testing despite his feeling that the injury had healed. The main thrust of insurer’s argument is that claimant has only been given a 5 % permanent partial disability rating by an or thopedic surgeon, who specialized in hand and arm injuries. This evidence alone, according to insurer, shows that the court erred in finding claimant to be permanently and totally disabled. We disagree.
This Court recently stated what effect was to be given medical impairment ratings in determining an injured worker’s amount of disability.
“Many factors in addition to medical impairment ratings may be properly considered by the court in determining a claimant’s disability. For this reason, impairment ratings do not conclusively establish limits on compensation awards in all cases; rather, such medical impairment ratings by physicians are simply expert opinion evidence constituting but one item of evidence to be considered along with other evidence presented.” Ramsey v. Duncan (1977), 174 Mont. 438, 571 P.2d 384, 385.
Here, the Workers’ Compensation Court considered this rating along with the other medical evidence and claimant’s testimony about his pain and inability to do the same kind of work since the injury, and found claimant’s testimony more weighty and credible than the impairment rating. The question of credibility of witnesses and the weight to be’given their testimony is exclusively for the trier of fact, the Workers’ Compensation Court, and we will not reverse its finding based on substantial, though conflicting, evidence. Crittendon v. City of Butte (1977), 171 Mont. 470, 559 P.2d 816.
For the foregoing reasons, we hold that the evidence is sufficient to support a finding that claimant is permanently and totally disabled.
We must next determine whether claimant is entitled to full compensation for permanent total disability or whether his compensation is limited by the provisions of the specific injury statute, section 92-709, R.C.M.1947.
For an injury to the hand, section 92-709 provides that the injured worker is entitled to compensation for a maximum of 200 weeks. Insurer argues that claimant is limited to that maximum, and that it is immaterial that claimant is permanently and totally disabled. We disagree.
In our view, section 92-709 applies only to permanent partial disability compensation, and has no application to compensation for permanent total disability.
Under Montana’s Workers’ Compensation Act, there is a specific statute governing the amount of compensation to which a claimant with a permanent total disability is entitled, section 92-702.1, R.C.M. 1947. This statute provides that such benefits “* * * shall be paid for the duration of the worker’s total permanent disability” and makes no reference to section 92-709, the specific injury statute. This, in our view, indicates an intent on the part of the legislature not to limit compensation for permanent total disability to the maximum compensation for specified injuries provided in section 92-709.
In construing statutes, our function is simply to ascertain and declare what, in terms or in substance, is contained in the statutes and not to insert what has been omitted. Myers v. 4 B’s Restaurant, Inc. (1977), 172 Mont. 159, 561 P.2d 1331, State ex rel. Swart v. Casne (1977), 172 Mont. 302 564 P.2d 983. Here neither statute makes reference to the other and there is no language limiting the compensation payable for permanent total disability to the máximums payable for permanent partial disability of specific members of the body.
Insurer’s final argument is that section 92-709, R.C.M. 1947, is the exclusive recovery provision for any of the injuries listed in the statute. This argument is without merit.
We have previously held that a claimant with one of the specific injuries listed in section 92-709 is not limited exclusively to that section. Fermo v. Superline Products (1978), 175 Mont. 245, 574 P.2d 251; McAlear v. Arthur G. McKee & Co. (1976), 171 Mont. 462, 558 P.2d 1134; Lewis v. Anaconda Company, (1975), 168 Mont. 463, 543 P.2d 1339; Jones v. Claridge (1965), 145 Mont. 326, 400 P.2d 888. These cases all involved claimants with permanent partial disability arising from injuries enumerated in section 92-709. We ruled that the claimant could either recover under the specific injury statue (section 92-709) or recover for his loss of earnings resulting from the injury (section 92-703.1). Therefore, it cannot be said that section 92-709 is the exclusive recovery provision for injuries listed in that section.
“The usual statute provides for both total disability and specific loss of a leg [or hand], without expressly saying that either shall be exclusive. It can therefore be argued that, since the act must be given a liberal construction, destruction of the more favorable remedy should not be read into the act by implication in a case when claimant is able to prove a case coming under either heading. * * * To refuse total disability benefits in such a case, when total disability is otherwise established to the satisfaction of usual tests, has the effect of ruling out the inability-to-get-work element in a listed group of injuries which just happen to take the form of a neatly classifiable loss of member. (Bracketed material added.)” 2 Larson, Workmen’s Compensation Law § 58.20, pp. 10-214 and 10-218.
In Montana the Workers’ Compensation Act is to be liberally construed in favor of claimants. Murphy v. Anaconda Co. (1958), 133 Mont. 198, 321 P.2d 1094; Rumsey v. Cardinal Petroleum (1975), 166 Mont. 17, 530 P.2d 433. Thus we allow claimant to recover compensation for the full amount of his disability as provided in section 92-702.1 and decline to restrict his recovery to the limitations contained in section 92-709 by implication. This is consistent with our approach generally in all workers’ compensation cases.
Judgment affirmed.
MR. JUSTICES DALY, SHEA and SHEEHY coiicur.
|
[
8,
19,
-16,
23,
9,
10,
-11,
-12,
8,
3,
-12,
7,
45,
-44,
19,
-9,
-45,
38,
16,
59,
-18,
-14,
-29,
19,
-37,
-23,
2,
3,
8,
47,
-5,
1,
8,
-50,
-54,
51,
15,
-20,
-26,
-13,
-6,
-6,
-1,
-40,
5,
3,
47,
-12,
-10,
5,
12,
-4,
-5,
-42,
37,
-13,
21,
39,
-11,
36,
-29,
-7,
93,
48,
55,
-6,
36,
4,
-1,
27,
-28,
59,
-11,
-57,
-21,
-73,
4,
44,
-32,
-70,
44,
2,
-24,
-15,
-70,
87,
-51,
20,
10,
51,
-63,
-60,
26,
14,
-26,
-10,
-2,
-23,
-33,
68,
7,
-18,
11,
-10,
14,
-22,
0,
37,
13,
53,
-18,
22,
-14,
21,
-10,
3,
25,
11,
3,
0,
10,
63,
-12,
38,
29,
14,
26,
6,
-3,
17,
-78,
-4,
-20,
21,
-18,
-9,
34,
-32,
-3,
-41,
38,
29,
-21,
-43,
-65,
114,
-42,
27,
5,
-14,
21,
-31,
80,
-23,
-6,
-30,
-8,
-22,
68,
-13,
11,
-59,
0,
46,
6,
14,
31,
-23,
9,
28,
2,
-36,
17,
-50,
29,
37,
72,
-37,
11,
48,
-22,
-4,
10,
11,
-45,
-19,
0,
-22,
56,
5,
4,
-25,
-78,
-12,
-35,
-29,
8,
22,
37,
17,
24,
10,
0,
-10,
6,
95,
8,
-8,
13,
-15,
59,
7,
-4,
-30,
19,
28,
12,
23,
-63,
-89,
-4,
14,
-26,
-7,
-63,
0,
8,
-17,
22,
-74,
-35,
8,
26,
5,
4,
3,
-5,
-18,
22,
10,
19,
-27,
-42,
-39,
-41,
-2,
-35,
-31,
1,
-32,
27,
-7,
0,
2,
-50,
-1,
9,
-4,
-53,
-41,
8,
24,
4,
-27,
67,
12,
31,
5,
-11,
-11,
32,
1,
70,
-31,
-56,
-76,
0,
5,
66,
23,
-21,
-33,
-4,
-14,
-38,
-31,
24,
-20,
-53,
16,
49,
-8,
57,
-4,
49,
-55,
16,
-1,
-19,
4,
-59,
47,
-42,
-10,
-4,
42,
-79,
24,
32,
-14,
18,
15,
32,
-40,
-23,
32,
-56,
0,
0,
-30,
12,
49,
4,
-33,
-8,
-7,
-62,
-20,
-18,
-17,
-31,
21,
-17,
42,
10,
-23,
-2,
14,
-5,
28,
-34,
-21,
51,
-51,
-54,
26,
36,
44,
45,
7,
-42,
-21,
-3,
-33,
-28,
74,
3,
-31,
-20,
16,
38,
-9,
-10,
-14,
-14,
20,
4,
8,
-37,
11,
-27,
-2,
14,
5,
-3,
27,
-30,
32,
-27,
-4,
21,
29,
41,
-44,
-26,
24,
-3,
-10,
-20,
-9,
-9,
-43,
15,
75,
-31,
-4,
-60,
-31,
28,
-14,
26,
-7,
-17,
32,
23,
-7,
18,
-16,
-34,
7,
-8,
4,
-24,
-34,
-17,
16,
37,
0,
-59,
-25,
53,
-44,
-12,
-44,
19,
-1,
25,
43,
-40,
-32,
-32,
-30,
-3,
-44,
-12,
-10,
-20,
-2,
-10,
20,
-32,
27,
-46,
-22,
28,
2,
-13,
31,
11,
-4,
48,
6,
36,
53,
-14,
-22,
2,
-39,
20,
-23,
-17,
2,
18,
-15,
48,
5,
12,
5,
0,
25,
55,
-18,
32,
-4,
-11,
-13,
-3,
-28,
19,
-16,
-10,
-18,
23,
2,
-28,
-45,
2,
-9,
-13,
8,
41,
-8,
0,
-26,
0,
-44,
-44,
55,
-35,
-79,
-11,
-44,
5,
-6,
82,
-37,
29,
-9,
-22,
6,
-32,
34,
53,
38,
17,
27,
17,
-23,
-14,
-13,
-3,
-4,
0,
21,
-39,
-59,
-26,
42,
25,
-45,
-3,
-29,
16,
24,
-4,
19,
53,
17,
-33,
-71,
-12,
-13,
5,
-21,
20,
-23,
40,
40,
59,
-5,
42,
-50,
-8,
36,
35,
-38,
63,
59,
-11,
4,
-1,
70,
11,
62,
-49,
33,
-5,
-3,
18,
-69,
-49,
31,
12,
-2,
-20,
-1,
-52,
-19,
-18,
3,
0,
-3,
12,
8,
-94,
-8,
19,
-26,
-39,
-11,
4,
-4,
18,
2,
-31,
6,
16,
16,
-65,
10,
-15,
-23,
-11,
21,
10,
60,
11,
10,
72,
-5,
-33,
37,
-11,
-31,
-20,
8,
1,
-13,
79,
-2,
26,
45,
58,
-2,
-61,
14,
-46,
12,
-8,
17,
41,
-10,
-10,
-65,
34,
-11,
40,
3,
8,
1,
-11,
52,
52,
43,
-17,
-79,
57,
34,
-32,
-22,
-25,
57,
-45,
5,
-12,
-7,
-11,
24,
-36,
43,
-35,
9,
17,
2,
12,
-4,
22,
-27,
-7,
17,
44,
72,
24,
35,
70,
-40,
-29,
-20,
12,
33,
-14,
-61,
35,
32,
27,
1,
10,
-19,
29,
-79,
-58,
65,
-17,
1,
21,
29,
-22,
-59,
-35,
0,
-38,
7,
-10,
-13,
-2,
113,
-19,
-32,
-21,
24,
28,
12,
-30,
-27,
18,
94,
0,
-40,
-22,
-59,
-18,
-36,
-24,
51,
15,
50,
29,
32,
-7,
-4,
-36,
-16,
-46,
53,
-75,
1,
0,
-10,
6,
-1,
44,
3,
10,
45,
-10,
0,
-20,
-7,
-2,
-3,
-30,
-2,
-39,
-108,
1,
-15,
-27,
-27,
22,
21,
0,
-44,
-11,
15,
24,
-5,
22,
-13,
-19,
-42,
-16,
54,
26,
-16,
10,
-2,
44,
7,
-39,
-17,
-29,
7,
17,
74,
-40,
-19,
-4,
40,
-19,
-7,
-43,
19,
39,
-16,
25,
-6,
3,
7,
-31,
-6,
2,
20,
-16,
1,
42,
6,
8,
21,
63,
-12,
-13,
-54,
79,
45,
2,
-4,
25,
26,
-9,
-11,
-7,
28,
-17,
-1,
58,
-39,
8,
42,
35,
12,
-44,
-6,
-68,
43,
43,
33,
18,
46,
25,
-46,
4,
-14,
-23,
29,
55,
10,
-41,
10,
16,
-2,
-42,
-62,
-52,
-1,
8,
6,
3,
-42,
72,
27,
70,
-5,
-22,
64,
10,
-21,
-38,
-25,
-34,
-16,
-31,
17,
38,
-43,
-54,
18,
-56,
20,
55,
8,
-12,
3,
15,
7,
25,
-34,
-6,
56,
4,
20,
-23,
-9,
-8,
-28,
-51,
8,
-21,
58,
37,
7,
10,
5,
31,
49,
71,
-5,
-32,
-33,
-8,
43,
10,
2,
42,
7,
31,
45,
-25,
50,
-18,
17,
-4,
-25,
10,
23,
0,
-27,
-5,
37,
-39,
31,
-17,
-10,
4,
27,
31,
-11,
-48,
-16,
-74,
-38,
13,
-61,
-8,
14,
-40,
-71,
23,
-47,
-2,
31,
39,
7,
-5,
38,
49,
7,
10,
15,
28,
-4,
-18,
-20,
-63,
53,
37,
-33,
30,
-23,
-34,
-35,
43,
-64,
-25,
-52,
-27,
-8,
-35,
-11,
7,
-17,
7,
-11,
2,
48,
-12,
-32,
-17,
-68,
-1,
-9,
-11,
-2,
2,
21,
11,
-37,
-1,
-21,
53,
26,
37,
-7,
6,
15,
-22,
27,
-7,
2,
58,
-7,
26,
11,
-20,
-30,
31,
20,
-68,
-12,
-33,
-45,
0,
-21,
37,
-40
] |
MR. JUSTICE JOHN C. HARRISON,
delivered the opinion of the Court.
The state appeals from dismissal of eighteen counts of perjury .returned by the grand jury against Jack M. Scanlon, defendant. The grand jury in Lewis and Clark County initiated an investigation into defendant’s Workers’ Compensation related activities. The foreman of the grand jury stated:
“ * * * Pursuant to this inquiry, the Grand Jury will examine the activities of Jack Scanlon in his representation of claimants before the Industrial Accident Board and the Workmen’s Compensation Division during the period between mid-1969 and mid-1973 and thereafter.
“This inquiry will include a review of each step of Mr. Scanlon’s professional representation, commencing with initiation of the attorney-client relationship and continuing through the conclusion of such representation, including any related third-party litigation involving subrogation rights.”
As a part of this investigation a number of defendant’s clients were called and testified to the manner the attorney-client relationship was initiated. After this testimony, the grand jury requested the attorney general to file a complaint with the Commission on Practice charging defendant did solicit without legal cause or permission, the individuals who testified.
Defendant was called to testify before the grand jury and refused to answer questions posed to him asserting his right against self-incrimination. Thereafter, in an effort to find where defendant received the information, defendant was granted immunity against prosecution except prosecution for contempt and perjury. He testified for two days before the grand jury, denying he solicited those persons-and offered explanation for the manner in which they became his clients. Following defendant’s testimony there was further inquiry and some clients were recalled. Some people, whom defendant said referred these clients to him, were called to testify. The grand jury returned an indictment charging eighteen counts of perjury.
Defendant filed a motion to dismiss these charges, which was granted. The state appeals.
We summarize the issues presented to be:
1. Whether the evidentiary standard required for proof of perjury was met?
2. Whether the allegedly perjured testimony was material?
3. Whether off-the-record statements made to the grand jury were grounds for dismissal?
4. Whether there was sufficient prosecutorial misconduct to warrant dismissal of the indictment?
5. Whether the admonition of secrecy delivered to the grand jury witnesses was grounds for dismissal?
First, we consider the strict evidentiary standard required for the proof of perjury. Three Montana statutes are applicable:
Section 94-7-202(7), R.C.M.1947, provides:
“No person shall be convicted of any offense under this section where proof of falsity rests solely upon the testimony of a single person other than the defendant.”
Section 93-401-1, R.C.M.1947, provides:
“The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason.”
Section 93-1401-2, R.C.M.1947, provides:
“Perjury and treason must be provided by testimony of more than one witness; treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances.” (Emphasis added.)
The basis for unusually stringent evidence requirements is set out in an article in 19 UCLA Law Review 638, 642, 643 entitled “Perjury and Related Offenses Under the Proposed California Criminal Code.” That same article points out at p. 645, that Tentative Draft No. 6 of the Model Penal Code on this point reads:
“Corroboration. Proof of guilt beyond a reasonable doubt shall suffice for conviction under this section as in other criminal cases, without special requirement of two witnesses or corroborating circumstances.
“[Alternate, rejected by the council: No person shall be convicted of an offense under this Section where proof of falsity rests solely upon contradiction by testimony of a person other than the defendant.]”
The official draft of the Model Penal Code, which served as the basis for section 94-7-202(7), R.C.M.1947, used the alternate provision. In Montana Criminal Code, 1973, Annotated, Prof. William F. Crowley — Editor, at page 293 the annotator points out:
“The common law rule that falsehood be established by two witnesses is adopted in part by subsection (7). At the common law this rule was adopted to deal with the problem of an oath against an oath. The modern rationale is a policy determination based on a balancing of the need for protection of witness and the need to maintain the sanctions for false testimony. In adopting the requirement of more than one witness Montana has followed the majority of states in affording additional protection to the witness at the possible cost of being unable to convict an apparent perjurer.* * *"
As noted above, the standard of proof required in Montana under the new code section 94-7-202(7), R.C.M. 1947, requires that the proof of the falsity of a statement must be more than the contradiction testimony of a person other than the defendant. The legislature recently made this policy determination and despite the contrary rule urged by the state, this is the rule in Montana.
The exact requirements of this evidentiary rule in perjury cases are apparent from an examinataion of the California cases inter preting the section of the California Civil Code, identical to Montana’s section 93-1401-2, R.C.M. 1947. In an article entitled “Proof of Perjury: The Two Witness Requirement”, 35 Southern California Law Review 86, 97, it is stated:
“In summary, the California attitude is, and remains, that direct testimony of at least one witness must always be introduced to prove the falsity of the statement set forth in the indictment; circumstantial evidence alone will not support a perjury conviction.”
In People v. Roubus, 65 Cal.2d 218, 53 Cal.Rptr. 281, 282, 417 P.2d 865, 866, 867, the California Supreme Court, sitting In Bank, outlined this evidentiary requirement:
“Perjury must be provided by the testimony of two witnesses, or of one witness and corroborating circumstances. * * * This statutory provision has been interpreted as prescribing not only the amount but also the kind of evidence necessary to support a perjury conviction. * * * Direct, as distinguished from circumstantial, evidence of the falsity of the defendant’s testimony by at least one witness is generally required. * * * This does not mean that there must be a denial in the very words of the defendant’s testimony * * * but that there must be testimony by at least one witness furnishing direct evidence of facts contrary to, or absolutely incompatible or physically inconsistent with, that sworn to by the accused * * *. Evidence that establishes facts from which the falsity of an alleged perjured statement may or may not be inferred is insufficient under the direct evidence rule. * * *
“The rule requiring proof of falsity by direct evidence has been criticized. * * * However, this requirement was early established in this state by decisions construing our statutory provision. It is noteworthy that a majority of jurisdictions which apply the rule that falsity must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances, hold that circunu stantial evidence alone is generally insufficient to establish falsity.”
An early Montana case indicates this is the law in Montana as well. In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, 290, it is said:
“ ‘It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a conviction of perjury. It is sufficient if, in addition to one directly opposing witness, corroborating circumstances, sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence are proved.’
The Court in Gibbs approved this instruction as to proof of perjury:
“ * * that such act of perjury has been established to your satisfaction beyond a reasonable doubt by more than one witness, or that the testimony of such witness has been corroborated upon that point by other facts and circumstances proved on the trial. In other words, the direct evidence of one witness alone is not sufficient to convict of the crime of perjury, unless corroborated by other facts and circumstances provided on the trial.’ ”
In Gibbs the Court was construing the then equivalent code section to section 93-401-1, R.C.M. 1947. Section 93-401-2 had not been enacted at that time. In State v. Jackson, 88 Mont. 420, 293 P.309, the Court cited Gibbs as authority of the requirement that perjury must be provided by the testimony of two witnesses, or one witness and corroborating circumstances indicating that this was the law even prior to the passage of section 93-401-2, R.C.M.1947.
A subsidiary question to be determined regards the nature of the corroborating circumstances that must be proved. The rule in California, that the state argues we should adopt, is stated in People v. Cassanova, 54 Cal.App. 439, 202 P. 45, 47:
“* * * The statue respecting the quantum of evidence necessary in perjury cases will be satisfied, if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged.”
See also: People v. Pustau, 39 Cal.App.2d 407, 103 P.2d 224, 228.
In Gibbs the Court said that “corroborating circumstances sufficient to turn the scale, and overcome the oath of the defendant and the legal presumption of his innocence” are all that is required. In People v. Todd, 9 Cal.App.2d 237, 49 P.2d 611, 614, it is pointed out:
“It is also well settled that motive and design to commit a crime, if proved, may be considered a guilty circumstance * * * and consequently may serve legally as corroborative evidence; and in this behalf it has been repeatedly held that where, as here, it is claimed that several offenses have been committed as part of one scheme or plan, all of the same general character, tending to the same common end, evidence thereof may be received to show the process or motive and design to commit the particular offense with which the accused is charged, and as tending to show logically that the particular offense for which he is being tried was part of such common scheme.”
The second issue involves the requirement that the alleged perjured statement be material. The Montana statue, section 94-7-202(3), R.C.M.1947, provides:
“Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation is a question of law.”
The Commission Comment points out:
“The proposed definition of ‘materiality’ in subsection (3) does not differ substantially from that given by prior law.”
In State v. Hall, 88 Mont. 297, 304, 292 P. 734, 735, the Court said:
“* * * Also it may be conceded that the general rule is that anything so connected with the matter at issue as to have a legitimate tendency to prove or disprove some material issue by giving weight or probability to, or detaching from, the testimony of a witness, is material * * * and that, if evidence is circumstantially material, it is sufficient to sustain a perjury charge.”
The test for materiality as set out by the statute is not particularly difficult to meet, it requires only that in the actual factual situation involved would it be reasonable to find that the defendant’s statement, if believed, could have altered the course of investigation.
While it is true that a false answer to a trivial or irrelevant question does not in and of itself hamper the functioning of the state, the court, whose integrity depends on the truth, has a special interest in seeing those who do not tell the truth, whether to a relevant or irrelevant matter, do not go unpunished. See section 94- 7-203, R.C.M.1947, which provides for the punishment of a false statement in an official proceeding whether that statement was material or not, and makes such false statement a misdemeanor.
We note here that nearly all cases cited by both parties involve a post-trial, not post-indictment determination' of these required elements. We are considering here perjury counts before a grand jury and not after a trial. The grand jury statute, section 95- 1408(c), R.C.M.1947, provides:
“The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.”
The district court dismissed each of the eighteen counts based on the absence of one the these elements — lack of direct evidence as to the falsity of the statement, lack of corroboration or lack of materiality. Several of the counts against defendant arose out of transactions wherein defendant testified the clients were referred to him by an uncle and aunt, Mr. and Mrs. Herman Meyers, long time family friends. At the time defendant testified all of these people were deceased. The clients who appeard before the grand jury denied ever knowing any of the named people, however, these deaths prevented the state from getting the necessary direct evidence required to prove perjury. The district court dismissed these counts for lack of direct evidence as to the falsity and these dismissals were proper.
We have carefully reviewed all other counts, and hold that with the exception of counts 9 and 10, they should have been dismissed. The dismissal of those counts comes from the fact they were not supported by direct evidence of the falsity of the defendant’s statements or due to the lack of sufficient proof to offset defendant’s failure to remember certain facts.
A summary of count 9 charges that Jack M. Scanlon, falsely testified that Grace A. Rieker first contacted him on the telephone, when in truth and fact he knew that he had instigated the telephone conversation with claimant for the purpose of initiating a client-attorney relationship and that he so testified to decieve and frustrate the grand jury in its investigation contrary to section 94-7-202, R.C.M. 1947.
A summary of count 10 charges that defendant falsely testified that prior to the telephone call from claimant he had never heard of the claimant nor the fact that she was injured, while in truth and fact he knew the claimant and that she had been injured prior to ever talking to her, and he so testified for the purpose of deceiving and frustrating the grand jury contrary to section 94-7-202, R.C.M.1947.
When asked how he came to represent Mrs. Grace Rieker and her claims before the Industrial Accident Board, defendant in answer to questions testified:
“Q. How did she come to know you? A. I don’t know you will have to ask her that.
“Q. The first contact with Grace Rieker was by her telephoning you? A. As I recall, yes.
“Q. Let me give you your files, in case you need them to refresh your memory. Did she call you in your office in Helena? A. As I recall, yes.
“Q. What did she say to you? A. She asked me about, as I recall, representing her in her industrial accident claim.
“Q. Now which claim was this? A. As I recall, there were two claims. One was for a neck injury, and she called me relative to that.
“Q. All right. In response to her phone call, what did you do? A. I met with her.
“Q. Where? A. In Boulder.
««* * *
“Q. And who was present? A. I think her husband was, but I am not sure.
“Q. Now, this was the very first contact that you ever had with her, was when she phoned you? A. As best I can recall, yes.
“Q. And prior to her phoning you, you had never heard of Grace Rieker or her injury or anything else? A. No.
“Q. But, you are confident that you did not solicit the attorney-client relationship yourself? A. Yes, I am confident I didn’t solicit the attorney-client relationship myself.”
Mr. Fuller testified as to his recollection of the Rieker case indicating he and defendant were high school friends and they had kept that relationship going over the years. He said that after he had talked with investigators of the Workmen’s Compensation investigation team, and just before he testified before the grand jury, he called Scanlon about the Rieker case because it was one they had asked questions about. He testified:
“Q. Well, did you check with him to make sure that his recollection of the Grace Rieker incident was the same as yours? Just to make sure that in your own mind that your memory- - - A. Yes I did.
“Q. So you went through with him how he developed his relationship with Grace Rieker in so far as you were concerned? A. The only thing I asked him was related to if he recalled that there were two calls made by me if I ever told him that, or if he had made a phone call from my home.
“Q. What did he say? A. He said no.
“Q. In other words, according to what Scanlon told you on the phone on March 26th, Grace Rieker made the first contact with Scanlon? A. Yes.
“Q. And it was either that she phoned him, asking for assistance of an attorney- - -right? A. Right.
“Q. —or that she came to his office? A. Right.
“Q. But did he tell you that in no way that he contacted Grace Rieker, telephoned her, or through, talked to her? A. Right.”
Fuller also testified he did not remember either giving the Riekers the phone number of Scanlon: or giving Scanlon the Riekers’ number.
Mrs. Rieker testified before the grand jury that she was a secretary-receptionist at the Boulder River School and on December 22, 1967, she had slipped down the school steps and received an injury that incapacitated her for a period of time. For that period she received no compensation other than from her sick leave. She returned to work and several years later on June 18, 1970, she was injured and from this injury she received compensation on an off and on basis. She testified that during her recovery a Mr. Ron Fuller of Boulder asked her if she was interested in a lawyer to help her get her industrial accidents payments. He told her he had a friend that was a lawyer and would she like him to come to talk to her.
Her testimony on the Fuller calls was:
“Q. As a result of this difficulty, did someone make a contact with you? Did some attorney make a contact with you, either personally or through someone else? A. Yes.
“Q. And what was the name of that attorney? A. Mr. Jack Scanlon.
“Q. Prior to this contact being made to you, had you ever personally known Scanlon? A. No.
“Q. How did this initial contact regarding Scanlon take place. A. A gentleman by the name of Ron Fuller- - -
“Q. So Fuller volunteered over the phone that he had a friend who was a lawyer and might be able to help you? A. Yes.
“Q. Now did you have additional problems with the Industrial Accident Board? A. Yes.
“Q. Did you, as a result of those additional problems say, hey, I remember that fellow Scanlon and go and call Scanlon? A. No.
“Q. Were you contacted a second time? A. Yes.
“Q. And who did this? A. Mr. Fuller again.
“Q. All right. And was this without a request on your part? A. Yes.
“Q. Was there anybody else there with Fuller at that time? A. Yes.
“Q. Who was that? A. Mr. Scanlon.
“Q. And how do you know that? A. Because Mr. Fuller asked me if I would like to talk to him on the phone and I said, well, I supposed I could talk with him about my problem, so I did talk to him on the phone.
“Q. Okay, so what did Scanlon say when he got on the phone? A. Told me he would like to handle my case, he had heard about it, was interested in it and thought he could help me.
“Q. Did he eventually come over to your house? A. Yes.
“Q. And when he talked with you, did he seem to know the details of your current accident? A. Yes.
“Q. How did he learn about the 1967 accident? A. He asked me at that point if I had ever had a previous injury, and I said yes.”
Al Rieker, husband of Grace, testified corroborating her testimony that after her 1971 injury she was contacted by Ron Fuller about whether she needed a lawyer and they told him “no”. About the second contact by Fuller he testified:
“Q. * * * Now, at a later time do you recall being home when the telephone rang? A. Yes.
“Q. Did you answer or did your wife? A. My wife answered it.
“Q. * * * Now, after she finished talking on the phone did she tell you who had called? A. Yes, she did.
“Q. And who did she say? A. She said Ron had called and he had put Jack Scanlon on and she talked to Jack Scanlon.
“Q. While you were in the house? A. Yes.
“Q. All right. Did Scanlon eventually come over to your home? A. Yes, he did.
“Q. Now, when Scanlon came to your home, did he tell you what the reason was that he talked to your wife over the phone? A. Yes, he did. He said he had been in contact with Ron Fuller and they had talked over our case and thought we needed a lawyer, or that he might help.
“Q. That he, Scanlon might help? A. Yes.
“Q. Okay. So that Scanlon told you he had found out about your wife’s claim before talking to your wife, from Fuller himself. A. Right.
“Q. And that was the reason that he had talked to your wife on the phone? A. That is correct.
“Q. And then later on, at a later time, he came to your house and he confirmed that to you. A. Yes.
As to these counts there are clearly contradictory statements to defendant’s. testimony that prior to actually speaking to Grace Rieker, he was both unaware of the claimant or her injuries. The necessary corroboration is provided by the testimony of Al Rieker,' whose testimony was that defendant came to the Rieker home and told them that before talking to Grace Rieker he had been in contact with Ron Fuller and had talked over the Grace Rieker injuries. Such testimony is adequate to corroborate that he knew of her injury from Fuller, prior to coming to the Rieker home.
The remaining three issues do not go to the actual merits of the charges individually but they alleged general procedural and prosecutorial improprieties as the basis for the dismissal of all charges against defendant. These attacks must be viewed against the function of the grand jury. In United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569, the United States Supreme Court pointed out:
“A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.”
These alleged improper procedures do not reach the merits of the individual charges but rather attack the matter in which the otherwise valid criminal charges are determined and instituted and are a weak basis for asking for dismissal of the charges.
The first of these is the request that the criminal charges be dismissed for off-the-record statements made by the special assistant attorneys general prior to the returning of the indictment. There was no record of what was said because the statute, section 95-1406(e)(1), R.C.M.1947, requires only that the testimony of witnesses be recorded. This session, characterized by the district court as a “prep session”, could not have resulted in the grand jury returning improper or unsupported indictments. The state urged the district court to limit its examination to the probable cause and the evidentiary support for each count. The district court said it “would prefer to do so and leave the matter up to the committee on practice but we can not overlook the devastating effect of the grand jury indictment of the person charged.”
While this Court does not overlook the effect of the indictment, it cannot uphold the dismissal of otherwise valid criminal counts because of possible improper statements made to the grand jury prior to the indictment. The merits of invalid counts may be challenged individually and the defendant’s rights thus protected.
The same may be said of the allegation that there was sufficient prosecutorial misconduct to warrant dismissal of the indictment. Nothing in the record here approaches this level.
The admonition of secrecy that was given to witnesses before the grand jury was not proper because it did not follow the procedure outlined in section 95-1409, R.C.M.1947. However, the requirement was lifted after indictment so that defendant’s ability to prepare his defense has not been impaired. The district court did not expressly base dismissal of the charges on this error, it said:
“While this apparent utter disregard for the orders of this court and the requirements of the law may not have demonstrably prejudiced the defendant, it is nevertheless suspect as an unauthorized intimidation of witnesses by the State, which could, if left standing or further ignored redound to the prejudice of the defendant. This should not be condoned or disregarded in considering whether the indictment should be dismissed.”
Under the circumstances disclosed here; the error is not that fatal.
The two remaining valid charges are remanded to the district court for trial on the merits.
MR. CHIEF JUSTICE JAMES T. HARRISON, JUSTICE HASWELL, and L. C. GULBRANDSON, District Judge, sitting for Justice Castles, concur.
|
[
12,
-27,
37,
-6,
30,
-19,
-25,
-40,
-45,
51,
35,
3,
16,
-46,
-19,
24,
-18,
11,
124,
-39,
22,
-1,
-28,
-22,
3,
-22,
-2,
-27,
-39,
-37,
-48,
33,
-25,
-12,
-31,
-30,
51,
-9,
-2,
-26,
11,
65,
-34,
-25,
17,
2,
-7,
-40,
-4,
35,
39,
-4,
-12,
-44,
27,
-59,
18,
19,
-21,
36,
23,
13,
2,
-14,
12,
-27,
20,
8,
31,
-4,
5,
7,
8,
16,
-19,
0,
-44,
-9,
-29,
-7,
-6,
-2,
-11,
4,
16,
-18,
37,
0,
36,
28,
-14,
3,
13,
-5,
-23,
-27,
26,
-16,
12,
20,
-7,
9,
19,
-23,
-10,
-33,
-10,
15,
28,
43,
10,
-61,
36,
-17,
-34,
-30,
65,
-10,
-22,
38,
-16,
-33,
-28,
63,
-5,
6,
11,
-18,
-1,
33,
21,
-22,
33,
-11,
0,
25,
-4,
-38,
-24,
33,
35,
-56,
48,
40,
-3,
36,
-61,
33,
29,
9,
-1,
-9,
36,
-12,
52,
-57,
-9,
-74,
-6,
19,
28,
-46,
-20,
1,
1,
-5,
-20,
-7,
-12,
-3,
20,
-6,
52,
30,
23,
-40,
32,
-22,
-17,
10,
-12,
-29,
-2,
25,
22,
46,
12,
52,
2,
-46,
-10,
7,
4,
-24,
-38,
33,
7,
-15,
45,
12,
5,
-11,
67,
6,
-26,
47,
52,
-29,
58,
-42,
-18,
-29,
24,
-36,
-9,
-23,
-14,
-28,
7,
-37,
-12,
11,
-5,
10,
14,
-29,
-30,
29,
-5,
-13,
-18,
7,
21,
-42,
-10,
18,
34,
-46,
28,
-19,
-18,
-59,
41,
-50,
-19,
68,
-36,
-29,
-7,
14,
16,
27,
54,
-13,
-11,
1,
22,
31,
-25,
-14,
3,
-19,
-1,
36,
-17,
3,
-3,
-2,
17,
42,
18,
21,
39,
27,
-16,
-34,
4,
19,
2,
-26,
-14,
-37,
-52,
30,
-3,
-6,
-16,
11,
-31,
-2,
4,
0,
-26,
-23,
13,
-50,
21,
31,
16,
0,
50,
54,
-22,
-23,
-75,
-16,
-52,
-20,
-10,
-25,
77,
14,
34,
0,
76,
-24,
-13,
-28,
35,
-39,
-4,
-18,
21,
8,
-33,
-14,
6,
-13,
7,
-1,
3,
-5,
4,
48,
27,
-21,
28,
30,
19,
-7,
-48,
-12,
8,
14,
-90,
24,
6,
29,
-12,
-3,
26,
-11,
22,
-4,
16,
22,
32,
-12,
17,
-23,
-3,
20,
16,
17,
0,
-1,
-59,
0,
-1,
10,
-41,
-26,
11,
-5,
-30,
-14,
0,
-1,
-57,
8,
-42,
-19,
1,
38,
-12,
-13,
37,
-15,
-60,
33,
-2,
-24,
-9,
35,
-45,
46,
12,
-22,
-24,
25,
5,
30,
22,
-2,
-58,
-27,
-20,
-29,
4,
2,
7,
27,
-23,
29,
16,
-52,
26,
51,
43,
-25,
55,
15,
58,
26,
35,
32,
-7,
13,
-49,
1,
11,
-1,
35,
-2,
9,
30,
-3,
14,
-12,
12,
-8,
-21,
-9,
5,
33,
-4,
44,
29,
26,
11,
-21,
70,
4,
1,
-14,
68,
22,
-13,
16,
-1,
5,
32,
29,
-44,
53,
0,
16,
-42,
37,
28,
34,
4,
-25,
-6,
-34,
12,
52,
-7,
-13,
-49,
58,
-3,
23,
-23,
-22,
-51,
-1,
-11,
29,
1,
-5,
1,
-36,
-53,
-68,
-1,
18,
-8,
3,
-30,
-49,
-42,
5,
-22,
-4,
-32,
31,
13,
0,
76,
-27,
50,
2,
-13,
-14,
8,
-11,
31,
8,
43,
1,
-2,
13,
-23,
-28,
-46,
-62,
-43,
10,
-30,
-20,
56,
8,
15,
1,
22,
-5,
37,
1,
-12,
4,
-6,
25,
-13,
31,
-1,
-49,
5,
53,
32,
36,
-45,
76,
10,
0,
-48,
24,
15,
12,
-27,
-10,
35,
32,
28,
-17,
-28,
-77,
-11,
16,
-56,
9,
98,
-6,
2,
29,
-6,
-26,
15,
9,
6,
6,
0,
-19,
-9,
-50,
-22,
54,
-15,
-37,
28,
-37,
-49,
-4,
18,
-23,
-3,
-9,
-41,
-23,
1,
-28,
-59,
33,
13,
0,
5,
64,
-34,
47,
1,
16,
-5,
14,
-28,
-36,
32,
-86,
-12,
24,
41,
-2,
-53,
7,
-42,
-6,
17,
-5,
39,
33,
-67,
-43,
-19,
-78,
-36,
9,
-45,
-62,
-48,
-40,
-40,
20,
57,
35,
21,
1,
-83,
44,
1,
48,
-39,
26,
44,
69,
-50,
-35,
0,
33,
9,
24,
-10,
62,
-17,
-27,
-1,
43,
20,
64,
-11,
45,
45,
41,
-21,
-28,
5,
-4,
-24,
12,
-63,
17,
-13,
46,
-37,
68,
11,
-22,
-1,
31,
10,
-44,
12,
3,
70,
-9,
6,
-17,
6,
-11,
-24,
5,
-56,
11,
8,
-24,
-9,
-8,
25,
-15,
-37,
-18,
20,
-5,
34,
-62,
30,
5,
9,
-60,
33,
-17,
-43,
-24,
-49,
1,
-1,
39,
37,
14,
-2,
17,
-23,
25,
11,
19,
24,
-33,
31,
-21,
-13,
-5,
31,
30,
-36,
-19,
-23,
46,
21,
29,
-44,
-31,
-68,
38,
63,
-10,
-11,
-14,
-26,
34,
-39,
-24,
9,
69,
49,
4,
-14,
-40,
-47,
-2,
1,
-22,
-33,
10,
53,
0,
-44,
-59,
18,
-26,
-21,
-16,
-20,
34,
-5,
-20,
-6,
-27,
-18,
-40,
63,
-11,
-7,
28,
29,
21,
-26,
-34,
-40,
4,
-1,
-46,
0,
-45,
19,
-6,
25,
17,
-115,
7,
41,
-15,
1,
-6,
5,
11,
-42,
-25,
-18,
-54,
-8,
2,
-25,
-41,
-10,
-3,
-10,
-11,
-42,
-36,
-24,
45,
13,
-25,
-15,
-10,
3,
35,
0,
16,
-17,
-19,
-11,
-2,
57,
-64,
-3,
31,
28,
9,
10,
34,
8,
-24,
81,
-6,
11,
-10,
26,
-1,
28,
26,
15,
7,
2,
-46,
-6,
19,
9,
3,
-54,
1,
-32,
5,
-12,
15,
27,
-25,
-21,
14,
28,
51,
40,
-15,
21,
-8,
-21,
-9,
-42,
78,
-23,
41,
19,
20,
-32,
-22,
-28,
-15,
-10,
15,
-7,
-20,
-39,
28,
-15,
-15,
11,
48,
26,
-7,
-1,
3,
55,
9,
24,
35,
9,
2,
49,
-5,
37,
18,
40,
-14,
7,
-54,
57,
28,
-69,
33,
-30,
-18,
5,
-10,
-38,
-5,
-19,
20,
-12,
-35,
-31,
0,
-7,
-9,
10,
13,
49,
-11,
42,
-66,
-32,
10,
56,
-2,
-30,
30,
26,
25,
62,
15,
8,
99,
-62,
30,
-12,
-43,
12,
-44,
-26,
-51,
27,
24,
33,
-4,
-21,
-33,
-29,
17,
14,
10,
24,
1,
-4,
-36,
26,
-5,
61,
-9,
-7,
-4,
-49,
43,
-10,
30,
-39,
8,
-9,
6,
32,
-15,
-40,
-6,
-22,
4,
8,
-51,
-37,
90,
76,
-21,
3,
43,
-7,
21,
-38,
-8,
-41,
17,
-9,
16,
-30,
16,
-40,
-56,
57,
7,
12
] |
MR. JUSTICE DALY
delivered the opinion of the' Court.
Home Indemnity Company, the workers’ compensation insurance carrier for Carlsons Transport, a Billings, Montana, trucking firm, brings this appeal from orders of the Workers’ Compensation Court. Appellant does not challenge the factual findings of the Workers’ Compensation Court, but contends that the court misapplied the statutory terms of the Workers’ Compensation Act to those findings.
The findings of fact pertinent to this appeal may be summarized as follows. Kenneth Anderson was a truck driver employed by Carlsons Transport on September 3, 1974, when he suffered an accident in the course of his employment. As a result of the accident, he fractured bones on the left side of his lumbar vertebrae. Carlsons’ insurer, appellant in this case, paid Anderson at the temporary total disability compensation rate from the date of the accident until July, 1975, when it reclassified his compensation rate to permanent partial disability. This reclassification reduced his payments from $137 per week to $60 per week. On October 14, 1976, Anderson petitioned for a hearing before the Workers’ Compensation Court, asking, among other things, that his temporary total disability rating be restored.
Two orthopedic specialists, Dr. Stanley Yoder and Dr. Perry Berg, examined Anderson prior to the hearing to determine the degree of physical impairment from his back injury. In its Finding of Fact No. 16, the Workers’ Compensation Court quoted from an October 12, 1976, medical report by Anderson’s treating physician, Dr. Yoder. In his report, Dr. Yoder judged that as of that date there was “still some potential for improvement” but that Anderson would continue to have a “chronic recurring sort of discom fort”. “Thus,” he concluded, “he would fall in the category of temporary total disability at this point.” He further reported that the condition “might very well be continued at least to the three year mark from the time of his injury . . .” Finding No. 16 also contains a quotation from Dr. Yodér’s deposition of April 5, 1977, in which he was asked to comment on his October 12 report. Dr. Yoder testified, “I think that what I was referring to in that instance was that the symptoms seem to lessen over that period of time, even though actual physical healing has occurred sometime before that, that is subjective improvement.”
Finding of Fact No. 17 notes that, in Dr. Yoder’s opinion, Anderson’s degree of physical impairment had not changed between August, 1975, and the date of the deposition, April, 1977.
Finding of Fact No. 18 contains Dr. Yoder’s response to a deposition question, asking when Anderson had attained maximum recovery:
“That is very difficult to put an exact date on, but I would say certainly within, oh, six months of the time of his injury, it was as good as it was ever going to get, and that is being rather generous.”
Dr. Berg, the other examining physician, made his examination of Anderson on January 10, 1977. His report is included in part in Finding of Fact No. 19:
“All disability is subjective. I can determine no evidence of nerve root irritation, disc disease or degeneration or basic disability. There is no limitation of motion in any of the joints. ... He has no condition which would necessitate surgery, or consideration of such nor is there any suggestion that this may be a significant possibility in the future. My examination for all practical purposes shows he has made a complete recovery. No limitations would be placed on his activities.”
Finding of Fact No. 24 is the Workers’ Compensation Court’s last finding. In it, the court concluded from the evidence “[tjhat claimant is physically able to return to sedentary work.”
In Conclusion of Law No. 3, the court concluded that “the testimony of Dr. Stanley Yoder, M.D., and of Dr. Perry Berg, M.D., is in conflict as to whether claimant has completed the healing period that removes a claimant from temporary total disability . . .” It concluded further that while both physicians are “qualified and experienced orthopedic surgeons”, Dr. Yoder had more opportunities to observe Anderson as his treating physician than did Dr. Berg, who examined Anderson only once. Accordingly, it gave greater weight to Dr. Yoder’s testimony.
Conclusion of Law No. 4 states that “Dr. Yoder’s final testimony is and the Court finds that the claimant is entitled to temporary total disability.”
Conclusion of Law No. 7 grants Anderson attorney’s fees and costs in connection with the preparation and pursuit of his claim.
Conclusion of Law No. 8, taking note of the fact that for a period of just over 12 weeks in the spring of 1977, Anderson was employed as a musician, ordering the insurer to pay him a lump sum for permanent partial disability during that period.
Appellant insurer takes issue with Conclusion of Law Nos. 4, 7, and 8.
This case does not present a question of sufficiency of the evidence to support factual findings, but of the appropriateness of the Workers’ Compensation Court’s application of statutory terms to those facts.
In cases involving the application of a well defined statutory term, the appropriate standard of review is whether the application of the term by the Workers’ Compensation Court was legally correct. We are not required to affirm simply because the application of the term was not unreasonable or arbitrary. Thus, the issue is not whether the Workers’ Compensation Court had some reasonable basis for its conclusion that Anderson was entitled to temporary total disability benefits, but whether, in view of the findings of fact, this Court agrees that the conclusion was the most appropriate application of the statute to the facts. In this instance, it was not.
Temporary total disability is defined as “a condition resulting from an injury as defined in this act that results in total loss of wages and exists until the injured workman is as far restored as the permanent character of the injuries will permit.” Section 92-439, R.C.M. 1947. In Hendricks v. Anaconda Co. (1977), 173 Mont. 59, 566 P.2d 70, 73, this term was further explained:
“ ‘[T]emporary total disability ceases when the workman’s physical condition is as far restored as the permanent character of the injuries will permit. When the claimant has reached this stage in his healing process temporary total disability ceases, and partial disability begins if there is permanent partial impairment.’ (Quoting McAlear v. McKee (1976), 171 Mont. 462, 558 P.2d 1134, 1137.)
In this case, the Workers’ Compensation Court’s findings of fact included ample findings of maximum recovery:
1. Anderson’s attending physician, Dr. Yoder, testified that while there was room for “subjective improvement”, the “actual physical healing” had already occurred, and that most likely within six months after the injury “it was as good as it was ever going to get”. (Findings of Fact 16 and 18.)
2. In Dr. Yoder’s opinion, Anderson’s degree of physical impairment had not changed from August 1975 to April 1977. (Finding of Fact 17.)
3. Anderson is able to resume sedentary work or school. (Finding of Fact 24.)
It is true that Dr. Yoder said in a medical report to Anderson’s lawyer that, in his opinion, Anderson’s condition on October 12, 1976, fell into the category of temporary total disability. In view of the findings of fact, however, the Workers’ Compensation Court was in error in adopting that opinion as its legal conclusion. A person whose recovery has progressed to “as good as it [is] ever going to get”, whose physical healing is complete, and whose only room for improvement is subjective, cannot at the same time be “temporarily totally disabled.”
The two other orders of the Workers’ Compensation Court from which the insurance carrier appeals may be treated quickly. First, the insurer was ordered to make a lump sum payment of $737.14 for the 12 week and two day period between March 19 and June 20, 1977. This payment represents compensation for permanent partial disability during the time when the claimant had employment as a musician, yet still suffered a compensable wage loss. The records of the Workers’ Compensation Court file, however, indicate that full payment for permanent partial disability has already been made during that period, as part of a regular schedule of payments to Anderson. The insurer is not required to pay that amount again.
Second, the Workers’ Compensation Court determined that Anderson was entitled to attorney’s fees and costs in presenting his claim. Section 92-616, R.C.M.1947, provides for the payment of such fees to a litigant whose claim is adjudged compensable. Because this Court finds that Anderson is not entitled to temporary total disability compensation as he claimed in this lawsuit, he is accordingly not entitled to attorney’s fees and costs under this section.
The judgment and orders of the Workers’ Compensation Court are reversed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, SHEA and SHEEHY concur.
|
[
11,
25,
-19,
66,
40,
-55,
19,
-29,
6,
-21,
-31,
61,
55,
-24,
5,
0,
1,
6,
-19,
23,
-50,
-20,
37,
12,
-46,
-22,
-15,
-25,
-49,
54,
30,
6,
8,
-16,
0,
40,
29,
17,
-34,
-3,
1,
52,
-43,
-7,
12,
35,
27,
32,
-31,
4,
28,
-30,
-10,
-13,
27,
30,
12,
57,
-27,
17,
-26,
-39,
59,
23,
52,
-53,
56,
36,
-2,
16,
-70,
27,
12,
-10,
-17,
-22,
25,
28,
-11,
-43,
0,
-45,
0,
-25,
-35,
58,
-39,
32,
14,
-16,
-14,
-63,
31,
0,
-40,
-5,
-9,
-9,
-18,
1,
3,
-7,
71,
-63,
-5,
9,
27,
-8,
11,
53,
11,
19,
-12,
44,
-1,
28,
21,
28,
22,
64,
-24,
-22,
-30,
-29,
2,
-27,
42,
45,
-1,
37,
14,
-6,
12,
21,
-27,
-24,
-23,
-31,
-23,
30,
-13,
76,
-12,
-46,
-43,
51,
34,
-44,
13,
-45,
41,
-12,
54,
-67,
-15,
-55,
-66,
75,
42,
-11,
38,
-43,
49,
49,
43,
45,
22,
-16,
39,
-25,
23,
-40,
-3,
-68,
26,
54,
60,
3,
-22,
12,
-69,
-15,
-15,
-31,
-41,
-19,
13,
-18,
74,
-22,
22,
-35,
-25,
12,
-45,
-48,
1,
-8,
6,
34,
-1,
-34,
-54,
-16,
-17,
41,
6,
40,
66,
80,
81,
-37,
16,
-33,
24,
40,
28,
-30,
-35,
-56,
28,
-3,
28,
-61,
-24,
7,
-32,
-22,
27,
-49,
-23,
22,
27,
35,
29,
-64,
17,
-21,
59,
18,
40,
-32,
18,
-46,
-27,
8,
-69,
-27,
8,
-50,
-3,
5,
-12,
-11,
-43,
-10,
32,
17,
-26,
-30,
-12,
29,
26,
36,
78,
-37,
16,
-20,
27,
-38,
-15,
-11,
64,
-54,
-36,
-53,
4,
-3,
45,
13,
-11,
-42,
55,
-38,
-38,
-26,
17,
-1,
-59,
-43,
47,
-68,
53,
15,
1,
-55,
19,
-3,
-30,
27,
-2,
-30,
-59,
16,
19,
34,
-73,
2,
12,
15,
13,
-46,
48,
-59,
-3,
-1,
-10,
-6,
4,
-51,
5,
104,
0,
-18,
46,
-24,
-41,
-25,
15,
-42,
-45,
-16,
2,
70,
29,
-40,
-9,
-14,
6,
-16,
7,
-21,
15,
-6,
-11,
56,
57,
-21,
56,
50,
-5,
11,
38,
-17,
1,
8,
61,
-40,
-17,
-20,
50,
-28,
-41,
-14,
-42,
12,
-1,
-15,
-24,
-2,
9,
-19,
6,
-26,
19,
-3,
20,
15,
6,
-14,
55,
47,
34,
-68,
-51,
13,
-46,
-66,
-2,
20,
-83,
37,
8,
61,
4,
-13,
-49,
-3,
-54,
7,
-16,
-21,
-6,
32,
92,
-46,
64,
-41,
-39,
10,
-48,
-37,
6,
-57,
53,
43,
72,
-51,
-73,
-69,
97,
-25,
7,
-29,
59,
15,
7,
45,
-10,
6,
8,
-4,
6,
-30,
1,
-69,
23,
-20,
-4,
6,
7,
-16,
-37,
7,
-27,
50,
-29,
43,
69,
-85,
55,
-26,
51,
33,
3,
20,
34,
-4,
-10,
-10,
4,
-15,
3,
25,
75,
-1,
15,
11,
15,
2,
71,
29,
25,
-42,
27,
-32,
-50,
-50,
46,
-50,
-78,
-68,
-54,
12,
-29,
-39,
-11,
8,
-12,
26,
53,
-33,
-53,
-8,
-62,
-7,
-21,
-6,
0,
-49,
-33,
-77,
10,
3,
13,
-55,
57,
-48,
2,
-35,
-35,
8,
14,
50,
31,
-23,
-13,
-19,
33,
42,
-6,
-25,
-24,
-32,
11,
-20,
-39,
25,
12,
-60,
-5,
-29,
26,
-6,
1,
-26,
52,
10,
-35,
-67,
38,
17,
-33,
-16,
62,
-63,
35,
11,
87,
-2,
3,
-24,
20,
0,
46,
-6,
71,
-3,
-14,
-30,
30,
44,
14,
45,
-7,
47,
-12,
3,
26,
-45,
-82,
6,
-30,
-21,
0,
9,
-40,
-26,
-42,
4,
-25,
12,
-18,
16,
-79,
-15,
48,
-5,
-29,
-50,
21,
-31,
4,
24,
45,
24,
-2,
-3,
-19,
-32,
4,
-25,
-21,
33,
68,
36,
-12,
-4,
52,
-49,
-54,
74,
13,
-24,
-39,
-70,
-20,
19,
12,
4,
10,
1,
42,
-3,
-34,
-9,
-28,
0,
-26,
-5,
28,
10,
26,
-47,
6,
43,
52,
33,
-41,
8,
-4,
7,
80,
40,
-13,
-72,
-11,
2,
-83,
-33,
13,
42,
-67,
-22,
-42,
21,
69,
41,
-72,
39,
-47,
58,
19,
-12,
35,
4,
-7,
0,
-43,
-14,
-1,
20,
-31,
23,
48,
-25,
-35,
-18,
2,
34,
-2,
-26,
44,
-6,
-41,
26,
-26,
-12,
64,
-42,
-55,
31,
-29,
53,
-15,
28,
48,
-31,
8,
-7,
8,
51,
-52,
6,
6,
89,
-42,
-10,
0,
35,
-23,
-2,
-17,
-75,
32,
103,
57,
-13,
-66,
-71,
-36,
-62,
-67,
18,
-20,
52,
8,
31,
-38,
-1,
-20,
3,
17,
16,
4,
-26,
25,
20,
5,
-8,
96,
31,
20,
36,
-32,
-9,
-60,
-4,
41,
4,
-30,
-3,
-18,
-23,
14,
-19,
3,
-6,
17,
-3,
36,
-2,
21,
61,
-29,
-12,
-13,
-2,
-40,
-38,
19,
84,
32,
17,
-9,
6,
44,
33,
-12,
12,
-36,
22,
32,
14,
-72,
-51,
-20,
6,
2,
-14,
-28,
32,
16,
-33,
19,
-37,
-27,
0,
-59,
39,
-35,
55,
-24,
35,
-22,
-21,
49,
-27,
41,
9,
-45,
-23,
45,
59,
24,
-15,
70,
58,
-31,
50,
33,
16,
-42,
-76,
38,
-61,
-46,
1,
45,
16,
-33,
-12,
-6,
9,
1,
76,
72,
11,
-50,
0,
66,
68,
-55,
38,
12,
-29,
-54,
36,
-1,
-22,
-43,
-52,
-8,
2,
-10,
1,
54,
-32,
-8,
-7,
7,
-28,
-25,
21,
-31,
18,
-19,
-16,
-3,
45,
-5,
41,
35,
-14,
14,
36,
-40,
-36,
42,
6,
35,
-29,
-68,
6,
-5,
33,
16,
45,
1,
20,
-36,
10,
-7,
-42,
-19,
-52,
-39,
59,
16,
4,
1,
34,
-9,
75,
2,
10,
-7,
-55,
-43,
-14,
-20,
29,
54,
-14,
-12,
3,
-13,
28,
-31,
22,
-8,
-5,
27,
8,
14,
-19,
-16,
11,
-40,
34,
13,
6,
-15,
26,
33,
-1,
-4,
-69,
-40,
-2,
18,
18,
-9,
53,
-41,
-70,
-8,
-19,
-15,
4,
98,
30,
8,
31,
-8,
-11,
-2,
12,
104,
64,
-48,
-6,
-2,
10,
17,
-19,
-6,
-57,
-63,
-38,
21,
-1,
-39,
-59,
6,
19,
21,
-22,
-8,
-31,
31,
11,
-12,
15,
10,
-29,
-12,
-26,
15,
19,
5,
-2,
0,
52,
12,
-39,
7,
-23,
68,
1,
37,
0,
15,
0,
0,
24,
16,
-42,
69,
-2,
41,
37,
-42,
-86,
48,
43,
27,
-73,
6,
-3,
-11,
-10,
6,
-45
] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Appeal from a judgment against appellant Jack C. Holloway in the Fourth Judicial District Court, Missoula County.
Holloway sought a declaratory judgment that he was entitled to a Masters of Business Administration degree from the University of Montana. He alleged his candidacy for the degree and that the University refused it for the sole reason he had failed to obtain a grade of “C” or better in a course entitled “BA650, Quantitative Methods”. A nonjury trial was held in District Court December 6, 1976. The sole issue was whether Holloway’s graduate student advisor had orally waived the Business School requirement that he obtain a “C” or better grade in Quantitative Methods described as a “core course.” The District Court denied Holloway’s request for a declaratory judgment, adopting in full the University’s proposed findings of fact and conclusions of law and rejecting Holloway’s motion for additional findings.
During the academic years 1966-67 and 1967-68, Holloway’s graduate student advisor was Dr. Jack Kempner, a professor in the School of Business. Holloway received a grade of “D” in Quantitative Methods. He thereupon approached Dr. Kempner concerning this situation. The grade adversely affected Holloway’s academic record in two ways. It dropped his grade point average below the required 3.0 (on a 4.0 scale) and the grade did not meet the requirement that a candidate for a graduate degree must receive a “C” or better for the course to count toward his master’s degree.
Holloway testified that Dr. Kempner had told him Kempner was of the opinion that all that was required was a 3.0 average. Appellant subsequently took four other courses at the University and succeeded in raising his average to the required 3.0. He did not repeat the Quantitative Methods course. Upon completion of a professional paper appellant made application for his degree in 1973. He was informed by the Dean of the Business School that his “D” grade in Quantitative Methods could not be counted toward the degree and the course would have, to be retaken. Further, he could take an equivalent course in the San Francisco area where he was then residing, which course the University would recognize.
Dr. Kempner, who testified at the trial, recognized Holloway but had no recollection of ever having told Holloway he would not have to retake the course in Quantitative Methods. However, Kempner further testified he had never waived any “six hundred core course for any MBA student”, and in his recollection no student had ever received a waiver of the Quantitative Methods course.
Considerable testimony was heard concerning the University’s policy on granting a waiver of a required course and the “unwritten” nature of that policy.
The issues presented on appeal are two-fold:
1. Is Holloway’s testimony about the waiver granted to him uncontroverted as a matter of law?
2. Was the District Court’s finding of fact, simply stating Dr. Kempner had not granted a waiver to Holloway, sufficient as an ultimate fact?
Holloway contends the evidence was insufficient to support the judgment because he positively and unequivocally testified that an oral waiver had been granted him by Dr. Kempner and because Dr. Kempner’s testimony that he did not recall any conversations failed to directly contradict Holloway’s testimony. General rules are given in support of this contention:
“The rule that the trial judge may not disregard uncontroverted credible evidence is fundamental.” In re Minder’s Estate (1954), 128 Mont. 1, 270 P.2d 404; Higby v. Hooper (1950), 124 Mont. 331, 221 P.2d 1043; State ex rel. Nagle v. Naughton (1936), 103 Mont. 306, 63 P.2d 123; Haddox v. Northern Pacific R. Co. (1911), 43 Mont. 8, 113 P. 1119.
“* * * the testimony of a witness that he does not remember whether a certain event or conversation took place does not contradict positive testimony that such event or conversation did take place (citing cases)”. Bender v. Roundup Mining Co. (1960), 138 Mont. 306, 356 P.2d 469.
Holloway correctly states the general rule, but falls short of sustaining his contentions for two reasons. First, considerably more goes into a trial judge’s examination of the evidence than Holloway contends. Second, a trial judge is not bound to find in favor of a party simply because one of his witness’ testimony is not directly controverted. The evidence in its entirety forms the basis of the Court’s decision.
In O’Sullivan v. Simpson et al. (1949), 123 Mont. 314, 212 P.2d 435, this Court, citing considerable authority, examined the many qualifications and extensions to the general rule that a trial court cannot disregard uncontroverted credible evidence. To summarize: statements may be so inherently improbable the Court is induced to disregard them. Testimony may be contradicted by other facts. There may be so many omissions in the testimony that the witness’ whole story is discredited. The witness’ manner of testifying, his appearance and demeanor may be considered. Attendant circumstances may cast suspicion upon the narration of a particular event. Finally, the interest of any witness in the result of the trial or any bias he might have may properly be considered.
We find the record supports the trial court’s decision on this point. For example, the University’s requirements for a Masters of Business Administration degree were spelled out in its catalog. Dr. Kempner testified as to the Business School’s standard procedure for handling requests for waivers, and that he did not forget to use it. Dr. Kempner also testified that “six hundred level” graduate courses, specifically Quantitative Methods, were never waived, and that he had never personally waived a core course. When coupled with the intangible factors a trial judge considers in making a decision, the considerable record established in this case would make it unreasonable to conclude the judgment was unsupported by the evidence.
Holloway specifies error in that the District Court’s single finding of fact on the contested issue was insufficient to support the judgment, and additional findings, as requested by appellant, should have been made. The applicable finding of fact states:
“Dr. Jack Kempner, Plaintiff’s graduate student advisor, did not grant Plaintiff a waiver of the required core course of Business Administration 650, Quantitative Methods.”
It is contended that specific findings on appellant’s credibility and the nature and extent of the authority possessed by Dr. Kempner should have been made. As to the latter, the University admitted in its answer to appellant’s Interrogatory No. 10 that Dr. Kempner had at least apparent authority to grant the waiver. Therefore, this was not a material issue requiring a specific finding.
Rule 52(a), M.R.Civ.P., provides that, “in all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.” Since the adoption of Rule 52(a) in Montana, the sufficiency of findings of fact has been considered only briefly. In Mondakota Gas. Co. v. Becker (1968), 151 Mont. 513, 445 P.2d 745, this Court said:
“We think it is quite evident that a ‘finding of fact’ will vary from case to case. As defined in 54 Am.Jur., Trials, Section 1131, page 786: ‘Findings of fact may be defined as the written statement of the ultimate facts as found by the court, signed by the court and filed therein, and essential to support the decision and judgment rendered thereon.’”
Despite the infrequency with which this Court has dealt with the sufficiency of findings of fact, neighboring jurisdictions (that have adopted rules identical to Rule 52(a)) have dealt with the issue on numerous occasions.
“The trial court’s function in nonjury cases is to find ultimate facts from conflicting evidence; and if these findings are sustained by competent, substantial, although conflicting evidence, such will not be disturbed on appeal.” Hafer v. Horn (1973), 95 Idaho 621, 515 P.2d 1013.“With these principles in mind, we turn to the finding in question and note, first, the classic rule that findings must state ultimate facts; they should not relate evidentiary facts relied upon by the court to reach the ultimate facts.” Seeley v. Combs (1966), 65 Cal.2d 127, 52 Cal.Rptr. 578, 581, 416 P.2d 810, 813.
“In regard to the matter of the sufficiency of findings of fact, a substantial compliance with Rule 52, Utah Rules of Civ.P., is sufficient, and findings, and findings of fact and conclusions of law will support a judgment, though they are very general, where they in most respects follow the allegation of the pleadings. Findings should be limited to the ultimate facts and if they ascertain ultimate facts, and sufficiently conform to the pleadings and the evidence to support the judgment, they will be regarded as sufficient, though not as full and complete as might be desired.” Pearson v. Pearson (Utah 1977), 561 P.2d 1080.
In the words of counsel for the appellant, “the case proceeded to trial on the basis of the single ultimate issue of whether a waiver was given by Dr. Kempner in the manner alleged.” Holloway’s credibility was not a material issue and no finding of fact was required concerning his credibility simply because Holloway speculates it was considered in the trial judge’s decision. The District Court made its finding of fact on the material issue alleged in the pleadings. The record supports that “ultimate fact”.
We have held (Mondakota Gas Co. v. Becker, supra) and now hold, in line with what we find other courts hold, that Rule 52(a) M.R.Civ.P., which obliges a trial court without a jury to “find the facts specifically,” requires findings of ultimate facts and not evidentiary facts. Sometimes (and this case is an example) a situation exists where the ultimate fact stated by the Court can also be read as a conclusion of law. Thus, here it is a statement of ultimate fact that ‘Dr. Jack Kempner * * * did not grant Plaintiff a waiver of the required core course * * *”, but that same statement could also be read as a conclusion of law. The statement does not thereby lose its character as a finding of ultimate fact, however.
The purpose of requiring “ultimate facts” in a court’s finding is three-fold: (a) to aid the trial court in making correct factual decisions and reasoned application of law to facts; (b) to define for purposes of res judicata and estoppel by judgment the issues there adjucated; and (c)to aid the apellate court. Moore’s Federal Practice, Vol. 5A, p. 2666, Section 52.03(3) (Rel.No.9). An ultimate fact is one deduced by the Court from evidentiary facts, but evidentiary facts should not be part of the Court’s findings, because evidentiary facts are incapable of becoming res judicata. Abeles v. Wurdack (Mo.1955), 285 S.W.2d 544, 548. The function of the trial court in determining the ultimate facts from the evidentiary facts is respected in Rule 52(a), and such ultimate fact findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
It is because the statement here involved could be read both as a conclusion of law and as a finding of ultimate fact that this case is distinguishable from those cases relied on by Holloway as supporting his contention that this particular finding is insufficient to support the judgment. In this case the material fact issue is determined by the trial court in an expression of ultimate fact. No more is required under Rule 51(a).
It is axiomatic that a District Court makes findings only as to material issues of fact related to the cause of action, Thompson v. Bantz (1959), 136 Mont. 210, 215, 346 P.2d 982, 985, and that a Court may not make findings upon matter outside the material issues. See: O’Brien v. Drinkenberg (1910), 41 Mont. 538, 544, 111 P. 137, 139; Dutro v. Kennedy (1889), 9 Mont. 101, 107, 22 P. 763, 764. Here the credibility of Holloway was not a material issue related to the cause of action; rather, it was only a factor to be considered in weighing the evidence. It is not a necessary or sole implication that because the Court found against the direct testimony of Holloway, that automatically the Court found his testimony to be false. It may be as easily assumed that, in the light of the weight of other evidence against the testimony of Holloway, that Holloway could have been mistaken or he may have misunderstood the tenor or meaning of what Dr. Kempner told him. Whether Holloway was mistaken, or else whether his testimony was false, was not a material issue in the case on which the Court had to make a finding. The record afforded sufficient evidence that no waiver had been granted without any finding necessary as to the truth of Holloway’s testimony.
For the reason expressed, the judgment of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, DALY and SHEA concur.
|
[
-2,
-36,
42,
-59,
5,
1,
18,
14,
-77,
38,
-33,
-12,
51,
6,
17,
-31,
-24,
-51,
-28,
-7,
10,
-26,
-4,
43,
61,
14,
0,
-10,
29,
1,
30,
13,
-30,
-43,
-17,
-7,
-40,
-28,
60,
8,
40,
35,
-7,
-45,
-2,
-18,
22,
-51,
-24,
35,
-16,
-31,
22,
-9,
14,
-18,
34,
-21,
-82,
62,
-6,
25,
46,
10,
36,
-62,
-53,
0,
8,
43,
-51,
-51,
-11,
14,
-78,
-19,
38,
27,
-54,
-21,
8,
-18,
16,
22,
-25,
-9,
-25,
25,
5,
32,
-17,
12,
8,
-39,
-12,
-46,
18,
-55,
2,
-6,
-35,
12,
8,
12,
-64,
35,
-26,
0,
45,
-2,
46,
6,
-4,
-10,
-21,
-33,
-25,
54,
-4,
72,
19,
36,
4,
50,
28,
-4,
21,
37,
-16,
0,
-70,
53,
-43,
48,
-85,
-42,
34,
2,
12,
-6,
32,
26,
-7,
-1,
-22,
-8,
-50,
-19,
-2,
-38,
-25,
-42,
-15,
35,
9,
-21,
58,
5,
10,
-34,
-33,
-84,
19,
29,
27,
12,
18,
19,
13,
-14,
0,
29,
-17,
39,
77,
-14,
-47,
1,
12,
-44,
-61,
17,
35,
-53,
-32,
100,
58,
26,
-16,
61,
-38,
14,
-14,
-27,
-1,
-17,
-29,
28,
31,
10,
2,
7,
12,
52,
8,
4,
-36,
-38,
-18,
-35,
-16,
-24,
59,
10,
39,
14,
-5,
-14,
47,
-5,
8,
12,
-56,
5,
14,
-4,
-26,
58,
-39,
-36,
4,
-15,
-26,
3,
24,
-20,
6,
18,
15,
-7,
-20,
-22,
14,
-14,
26,
56,
-41,
-17,
-25,
3,
3,
24,
35,
15,
-41,
9,
-5,
-25,
11,
0,
-7,
10,
-17,
22,
-33,
-42,
-9,
-36,
26,
6,
4,
-23,
10,
25,
-12,
-26,
-22,
-31,
11,
-18,
-28,
-10,
0,
35,
24,
62,
-25,
23,
-54,
4,
-38,
-3,
-5,
-40,
100,
-14,
49,
-8,
-61,
-8,
12,
4,
10,
-3,
4,
-56,
-37,
-69,
31,
-51,
39,
-66,
-13,
-2,
34,
-47,
4,
-23,
45,
-22,
12,
-5,
44,
18,
1,
22,
-15,
32,
2,
-23,
-17,
-5,
-36,
58,
53,
-20,
0,
57,
52,
51,
-21,
38,
27,
39,
-6,
18,
-4,
-13,
-13,
24,
16,
-5,
-34,
11,
38,
39,
28,
-2,
-53,
-31,
-11,
-7,
-25,
-1,
-55,
6,
25,
22,
34,
-37,
20,
-13,
14,
53,
52,
1,
19,
-20,
-76,
55,
-63,
-8,
-11,
-5,
26,
-5,
1,
-31,
-1,
28,
-16,
33,
-12,
21,
23,
-29,
52,
47,
14,
13,
15,
23,
-53,
35,
17,
-66,
-7,
-35,
-23,
26,
-26,
17,
-24,
-23,
-3,
47,
43,
-2,
-15,
13,
11,
-49,
-12,
-10,
21,
0,
-26,
-19,
-13,
-23,
-55,
7,
0,
-52,
7,
-48,
26,
6,
-9,
27,
27,
-22,
-72,
-46,
21,
-3,
10,
-6,
9,
-27,
26,
39,
-7,
0,
0,
-1,
-21,
-22,
-27,
-12,
-5,
20,
-33,
33,
13,
1,
56,
25,
22,
13,
-3,
16,
-9,
40,
47,
-27,
-24,
-63,
-73,
-14,
-33,
0,
-41,
-50,
28,
-18,
-22,
-30,
-107,
37,
-47,
52,
23,
13,
-1,
53,
38,
-2,
19,
-20,
-60,
-15,
-32,
27,
-57,
-55,
8,
-68,
-24,
30,
35,
-30,
12,
64,
-8,
6,
-16,
25,
-5,
71,
-8,
79,
6,
0,
-16,
19,
-85,
-44,
-20,
11,
-8,
67,
28,
-36,
-18,
-45,
3,
57,
20,
-47,
10,
-41,
15,
-27,
16,
83,
30,
20,
9,
17,
37,
-22,
14,
-29,
-31,
0,
-4,
14,
0,
-47,
-8,
80,
-42,
21,
27,
-5,
16,
29,
62,
-18,
-24,
26,
-26,
-15,
50,
2,
10,
35,
-12,
18,
30,
42,
49,
-2,
-41,
-17,
66,
11,
36,
33,
-2,
-10,
11,
19,
21,
-82,
8,
-20,
-13,
-18,
-21,
48,
5,
46,
14,
-35,
-17,
0,
9,
-42,
-6,
-28,
-1,
-1,
-15,
-32,
-71,
4,
57,
-27,
-21,
-8,
19,
-40,
33,
2,
-20,
16,
37,
5,
22,
-60,
16,
43,
-33,
-63,
-5,
-8,
-70,
-25,
50,
-31,
-34,
46,
16,
32,
23,
48,
16,
-43,
33,
4,
-28,
3,
-32,
25,
0,
-61,
-1,
-7,
3,
29,
-18,
-16,
-7,
58,
20,
-41,
-15,
30,
-4,
10,
-39,
-56,
12,
64,
-42,
8,
51,
47,
-5,
8,
-10,
69,
32,
-36,
16,
48,
43,
-33,
25,
-11,
37,
3,
65,
-21,
-37,
-1,
-23,
-19,
23,
-44,
9,
-14,
0,
34,
-21,
20,
-45,
-30,
-1,
-21,
-21,
-4,
-23,
0,
-22,
-11,
-65,
14,
18,
45,
22,
-10,
30,
-1,
22,
26,
83,
-33,
-29,
5,
-25,
25,
-14,
1,
-11,
1,
32,
-27,
32,
56,
-79,
-30,
-53,
30,
-7,
0,
-14,
-48,
-31,
-26,
21,
23,
-43,
-4,
33,
-7,
28,
21,
-13,
-47,
-30,
-23,
26,
34,
12,
-25,
30,
43,
-10,
-63,
-7,
-6,
-20,
-47,
-61,
3,
-15,
22,
30,
-3,
-54,
19,
-26,
46,
-63,
67,
45,
27,
-59,
27,
-3,
-46,
42,
35,
-13,
38,
26,
4,
-37,
14,
36,
36,
29,
4,
0,
-23,
-11,
67,
15,
19,
-5,
27,
29,
30,
8,
-42,
-39,
-7,
-48,
3,
-7,
57,
41,
-30,
-30,
8,
-54,
15,
5,
-16,
18,
0,
4,
-72,
-41,
76,
2,
8,
-20,
-31,
-29,
11,
43,
-48,
7,
-3,
26,
-24,
-54,
15,
-25,
14,
8,
-17,
-11,
-19,
42,
50,
37,
-7,
-39,
65,
17,
57,
13,
3,
3,
20,
-5,
29,
51,
-5,
-58,
44,
8,
116,
32,
-1,
21,
-10,
8,
15,
-17,
-20,
-9,
-29,
105,
0,
2,
10,
-3,
-17,
-18,
-43,
23,
-42,
-15,
-65,
-15,
-57,
9,
1,
8,
1,
-9,
18,
-41,
17,
-39,
0,
6,
29,
-14,
-30,
-17,
31,
35,
-8,
-9,
32,
-50,
33,
50,
-3,
-17,
-45,
-29,
66,
9,
39,
-53,
5,
1,
22,
-3,
65,
26,
7,
15,
-4,
10,
-9,
-2,
-3,
-56,
-55,
16,
15,
-13,
47,
-4,
52,
-3,
51,
-102,
-4,
99,
-30,
-51,
-12,
7,
53,
-28,
32,
-59,
-48,
1,
4,
-20,
-57,
-6,
-46,
2,
56,
-36,
29,
22,
-37,
-4,
-17,
13,
8,
20,
-13,
18,
26,
24,
-49,
-19,
-29,
-19,
31,
-6,
25,
11,
10,
61,
15,
73,
-26,
-18,
-22,
-2,
-52,
16,
-40,
-10,
24,
40,
-56,
-67,
-39,
49,
-38,
-4,
-14,
-28,
19,
-49,
-20,
21,
37
] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Appeal by appellant, Gary M. Murphy is from a judgment in the District Court of the Seventh Judicial District, Dawson County, awarding judgment against Gary M. Murphy and in favor of Richard Redland, Jr. and E. M. Berthelson, in a cause tried to the District Court without a jury.
The matter comes on regularly for decision in this Court, as one classified under the Internal Operating Rules of this Court (November 17, 1977) for submission without oral argument.
The case is a welter of confusing contentions and countercontentions. Stated as simply as possible the parties entered into a written agreement dated April 10, 1976 whereby they established between them, a joint venture for the purchase of cattle, to be grazed on lands to be supplied by Murphy. Each of the parties was required to bear one-third of purchase price, one-third of expenses of grazing and running the cattle, and receive one-third of the net profit after the cattle had been sold.
These are the facts as we glean them from the record:
In early 1976, Murphy had possession of lands in Dawson County, Montana, by ownership or by lease, known as the “Richey Place” together with state and private leases and Taylor grazing rights. On March 24, 1976, Murphy entered into a pasture agreement with Redland by virtue of which Redland was to pay $5 per animal unit per month in three payments to graze 1,000 animal units on the Murphy land for a period of 5 months during the 1976 grazing season. The pasture lands apparently included 8 sections of land which Murphy held under lease from one Homer Johnstone which Murphy had leased from Johnstone for a promised cash consideration of $19,000. Murphy had paid $3,000 to Johnstone and the balance of $16,000 he sought to obtain from the Wolf Point PCA by borrowing. The loan from the Wolf Point PCA was to be based upon the strength of the pasture agreement between Murphy and Redland for the lands. Redland had apparently determined to buy cattle in Texas to stock the lands covered by the pasture agreement.
Before PCA made the proceeds of this loan available, Murphy called Redland to inquire if Murphy could come in on one-third interest of the Texas cows if Murphy could produce a banker who would bankroll the venture for them. He was proposing to Redland that Berthelson would be the financier involved. Redland agreed, and Murphy negotiated with Berthelson.
Berthelson agreed to provide the money to purchase the cattle. He reserved the right to approve the cattle purchase, on which Redland had already negotiated a purchase price, and for which Redland had made a down payment of $ 10,000. Berthelson further stipulated he would receive one-third of the net profits when the cattle were sold, and in addition, would receive 10 percent interest per annum from the other two parties on any monies which Berthelson advanced on the purchase price of the cattle or the operating expenses of grazing and running the cattle, over and above his one-third share, from the party or parties who contributed less than a one-third share.
Berthelson went to New Mexico in early April 1976, approved the cattle, and provided $158,884.32 towards their purchase, the other $10,000 of the purchase price having come from Redland.
Before shipping the cattle to Montana, however, Redland and Berthelson sold certain of the cattle in Roswell, New Mexico, with the agreement of Murphy, which netted the joint venture the sum of $11,018.76. The remaining cattle were shipped to Montana by truck, Redland paying the trucking expenses.
When the cattle arrived in Montana, it was found that Homer Johnstone had not been paid the balance of the lease monies due him, and refused to allow the cattle to be unloaded on the leased lands until he was paid. As a result, the cattle were unloaded on Murphy’s Bluff Creek property. Eventually Johnstone agreed to permit the cattle on his land after receiving a personal guaranty of payment from Redland and Berthelson. In June 1976, the PCA paid Johnstone the $16,000 balance, as proceeds of a loan from PCA to Murphy.
Before Berthelson had paid the balance of the purchase price for the cattle in New Mexico, a conference long-distance telephone call between Murphy, Redland and Berthelson occurred, whereby orally the essential details of their agreement were worked out. This agreement was reduced to writing, and on June 6, 1976, the parties met in Richey, Montana, where the written agreement was signed. At the same time, they added and approved three handwritten paragraphs to the agreement which were to the effect that Redland would have full charge of the operation of the cattle and all employees and management of all leases; Murphy would furnish Berthelson and Redland with a letter from the PCA office as to any interest PCA might have in the Johnstone lease and what PCA expected of Murphy with regard to the joint venture agreement; and further, Murphy on that date was in violation of their agreement and had been given 10 days to correct the violation.
PCA requested it be given a lien on the cattle as security for its loan to Murphy of $16,000. However the cattle had been branded with the Berthelson brand and he refused to allow the cattle to be mortgaged.
At the June 6 meeting, Berthelson insisted Murphy provide an additional $25,000 toward the venture. Murphy claims the requirement for an additional $25,000 from him was one of the “violations” of the joint venture agreement claimed by Berthelson and Redland, which he was to remedy within ten days. Murphy never produced the $25,000 although oral extensions were given to him by Berthelson. Murphy claims that on July 16, 1976, Berthelson terminated the arrangement as far as Murphy was concerned.
How much Murphy would receive for the grazing of joint venture cattle upon his lands then became a matter of dispute between the parties. Berthelson had advised Murphy he would receive only $3,000 credit, as the remaining $16,000 had come from the PCA. About September 8, 1976, Murphy learned from Redland that Redland intended to remove the cattle and sell the same though the parties had not arrived at an agreement as to grazing costs to be allowed to Murphy. Murphy filed and served on September 30, 1976, an agister’s lien on the cattle under section 45-1106, R.C.M. 1947, claiming the reasonable value of the grazing furnished by him to be $42,730. Murphy claims the calves were removed by Redland from the Johnstone place without Murphy’s knowledge or consent to the Valley Vu Feed Lot, Fairview, Montana. Upon learning this, Murphy trailed the remaining cattle from the John-stone place to his Bluff Creek property. There, Redland came in and removed the remaining cattle, intending to sell them at the Sidney Livestock Auction Company, Sidney, Montana. Murphy filed his complaint in the District Court on October 20, 1976, requesting and obtaining from the District Court a temporary restraining order against the sale of the cattle and praying for $42,730, the amount of his grazing claim against the defendants as damages. However, Redland and Berthelson sold 518 cows, 13 bulls and 47 calves at the Sidney Livestock Market Center on October 20, 1976, for the net sum of $94,969.88. These funds were impounded by the State Brand Inspector because of the agister’s lien and the temporary restraining order of the court. An additional 520 calves were held in the Valley Vu Feed Lot.
On October 29, 1976, the parties stipulated if Murphy posted a surety bond in the sum of $20,000 and the defendants, Berthelson and Redland deposited a total sum of $42,730 in a special savings account, subject to the order of the Court, the temporary restraining order could be quashed, the funds from the sale released to E. M. Berthelson and the remaining calves could be sold. Murphy posted a surety bond in that amount provided by Aetna Casualty and Surety Company. Berthelson deposited the $42,730 in the savings account in the First National bank of Glendive, Montana. The remaining cattle were sold, resulting in net proceeds on November 10, 1976 from C & L Cattle Company of $40,168.81 and on November 16, 1976 from Sidney Livestock Market Center the sum of $44,286.15. With these sales, all of the cattle held by the joint venture had been sold.
Also on October 29, 1976, defendants, Redland and Berthelson, filed an answer and crossclaim, denying in essence the allegations of the plaintiff’s complaint and inserting a crossclaim against Murphy claiming the wrongful filing of the agister’s lien by Murphy and the procuring of the restraining order issued by the Court resulted in an inability to sell the cattle to such an extent that losses were sustained when the cattle were eventually sold.
The case came on for trial before the District Court beginning February 3, 1977. The trial took on the nature of an accounting between the members of the joint venture and an action for damages against Murphy. The District Court entered its findings of fact and conclusions of law on April 29, 1977. In essence, the Court found the joint venture had sustained an operating loss of $31,912.04; it further found the filing of the lien by Murphy had prevented the ordinary sale of calves by reason of which the joint venture sustained a loss of $16,721.04. It also found that Murphy had prevented the ordinary sale of the remaining calves, cows and bulls resulting in a'loss to the joint venture of $25,482.04. The total loss the Court found came to $74,115.12, charging one-third to each member of the venture, or the sum of $24,705.04. Against this sum, the Court credited Gary Murphy with the $19,000 on the cash lease and entered its judgment against Murphy and in favor of Redland and Berthelson in the sum of $5,705.04, and an additional sum of $2,532.05 due to Berthelson as interest for Murphy’s unpaid share of cash contributions for the joint venture. The Court provided that the judgment was effective against Murphy and the surety company, Aetna Casualty and Surety Company. All funds theretofore held and the savings account were to be released to Berthelson.
Appeal by Murphy to this Court was timely filed.
The foregoing statement of facts is not complete. We will set forth additional essential facts with respect to the discussion of the issues hereunder.
The plaintiff submits 17 issues for review, mainly relating to findings and conclusions entered by the Court. The issues can be encapsulated as follows:
(1) What were the duties and responsibilities of the members of the joint venture?
(2) Was the venture terminated or repudiated prior to the cattle sale?
(3) Is Murphy liable to Berthelson and Redland for damages?
(4) What is the proper accounting between the parties?
(5) How should interest be awarded?
(6) How should court costs be taxed?
The Duties and Responsibilities of the Members of the foint Adventure
The parties here were engaged in a “joint enterprise” or “joint adventure”, looking eventually to their mutual gain. As this Court stated in Bradbury v. Nagelhus, et al. (1957), 132 Mont. 417, 426, 319 P.2d 503, 509:
“Broadly speaking, a joint adventure may be characterized as a quasi-partnership in a single adventure undertaken for mutual gain. The terms joint adventure and joint venture are synonymous. 48 C.J.S. Joint Adventures § 1, p. 803. If the venture be for pleasure rather than profit, it is sometimes called a joint enterprise.
“These relations differ technically but assume one element common to all. Inter se, partners are agents and principals. Trustees are agents for the beneficiaries, but beneficiaries are not agents for their trustees. A court of equity will raise a constructive trust to sustain a joint venture, but not alone to enforce a copartnership. Joint adventures and joint enterprises' are defined on principles applicable to partnerships. Inter se, partners and joint adventures are obligated as trustees. The common element is the fiduciary relation.”
As between themselves, the members of a joint adventure are principals for themselves and as to the other members, are agents. Thus, they undertake a dual status, at the same time, that of princi pal and that of agent. 48 C.J.S. Joint Adventures § 5c, p. 827. Since a mutual agency exists, each has the right of control over the others and an equal right to a voice in performing the joint adventure as well as in controlling the agencies used in its performánce. 48 C.J.S. p. 828, supra. However, one or more members of the joint adventure may entrust certain performances of the enterprise to one or more of the other members. 48 C.J.S. p. 828, supra.
The joint adventurers may provide in their agreement, that if default occurs with respect to one of the members, the other members may succeed to his interest upon such default. Adams v. McGraw (1924) 99 Okl. 65, 225 P. 980. However, absent a default agreement joint adventurers cannot forfeit the rights of a member and exclude him from participation in the enterprise because he is in default. 48 C.J.S. p. 833, supra. In that case, the remedy of the joint adventurer who is not in default is an action for rescission or for breach of contract.
From the evidence here, we find that the members, Richard Red-land, E. M. Berthelson and Gary M. Murphy entered into an oral agreement of joint adventure or joint enterprise (later partly reduced to writing, and amended from time to time), whereby the parties agreed to purchase cattle in Texas, ship them to Montana, graze and run them on lands owned or leased by Murphy, each to pay one-third of the cost and expenses involved and to share one-third in the profits, if any resulted.
The total cost of the cattle purchased was $168,844.32. Of this amount, Redland had already paid $10,000 as a down payment, and Berthelson supplied the balance. The written agreement provided if one of the parties bore more than his share of the purchase price of the cattle, or the “operating expenses of grazing and running the cattle” then any party not paying or bearing his share of the cost shall be liable to and would owe the party bearing more than his share of the cost the difference between the amount so paid by the party bearing the cost and the amount which the other parties should have to bear according to the terms of the agreement, with interest at 10 percent per annum. Having bankrolled the cattle purchase, Berthelson had no further specific duties under the written agreement. It was the duty of Redland and Murphy properly to feed and care for the livestock and their offspring according to the standard of good husbandry.
The written agreement provided that in the event of dispute the problems were to be settled by arbitration. Not treated in the agreement, however, were these important subjects:
(a) What amount Murphy would be entitled to receive for his pasture; and,
(b) Whether less than all of the members of the co-adventure could act to sell the cattle, or any part thereof, without the other member’s knowledge or consent.
The Termination or Repudiation of the Contract
Murphy claims that as to himself, the contract was “repudiated” and terminated by Berthelson and that as a result, he was forced out of the joint venture. The significance of this claim is, since the cattle were being held by the co-adventurers in a falling cattle market, during the early term of the agreement it would be advantageous to Berthelson and Redland and not advantageous to Murphy to have Murphy out of the arrangement and not share in the profits; whereas, at the time the cattle were sold, it was advantageous to Berthelson and Redland and not advantageous to Murphy to have Murphy included as a joint adventurer, because then he shared the losses.
There is some ground to Murphy’s claim. As indicated, the parties met in Richey, on June 6, 1976. At that time, it appeared Murphy’s loan from the PCA had not come through and so the Johnstone-lease remained unpaid; also on that date, Berthelson required Murphy provide an additional $25,000 as a cash contribution to the joint venture. These problems brought about two written amendments to the partnership agreement: one, where Murphy agreed to furnish Berthelson and Redland a letter from the PCA office as to whether PCA was claiming any interest in the cattle and also that Murphy on June 6, 1976, was in violation of the joint enterprise agreement and was given ten days to cure viola tion. He was later given oral extensions of the ten days to July 7, 1976. Murphy claims he was given to understand, because he did not provide such $25,000 cash contribution, that he was in fact out of the joint adventure.
On the other hand, Berthelson and Redland deny Murphy was forced out of the joint adventure by them. They stated the written provisions were simply for the purpose of requiring Murphy to provide the cash contributions he had agreed to provide and .Murphy .was never given actual notice, in writing or otherwise, that his interest in the joint venture was terminated. It is not clear that Murphy himself ever consented he was indeed out of the joint venture.
A contract may be terminated by the parties, but only by the mutual consent of all the parties. Edwards v. Muri (1925), 73 Mont. 339, 346, 237 P. 209, 211. The parties could have ended the contract by proceeding for rescission, section 13-905, R.C.M. 1947. None of these events occurred however and so we hold the contract was not terminated, extinguished, rescinded, or “repudiated” and that Murphy was at all times a fully participating member of the joint adventure.
Murphy’s Liability for Damages
The District Court found that Murphy caused a loss to the joint enterprise of $16,721.04 resulting from the sale of calves by the joint enterprise, and the further sum of $25,482.04 resulting from the ordinary sale of calves, cows and bulls. With these conclusions we do not agree.
Some further discussion of the facts is necessary to understand this issue. At the meeting of the members in Richey, on June 6, 1976, a further written amendment to the written agreement was made whereby Redland was to have full charge of the operation of the cattle, all employees and management of all the leases. Thereafter, Redland, to the exclusion of Murphy, took over managing the cattle, and the payment of expenses incurred thereby.
The cattle continued to be pastured on the Johnstone lease. In September 1976, Redland asked Murphy, in a telephone conversa tion, to send Redland a letter stating what Murphy thought he was entitled to for the cost of pasturing the enterprise cattle. Murphy declined to do this. At the same time, however, he learned that Redland, with the agreement of Berthelson, intended to remove the cattle from the Johnstone lease and offer them for sale. One of the unwritten agreements between the members of the coadventure was when the cattle came to Montana, they would be branded with Berthelson’s brand. Against the possibility that the cattle could be sold by Berthelson and Redland without Murphy’s knowledge and consent, and without an agreement with respect to his pasture monies, Murphy, on September 30, 1976, filed an agister’s lien, claiming the sum of $42,732 for grazing. He had computed the sum on a basis of $10 per head per month for all livestock older than 6 months and $5 per head per month for calves of 6 months or less.
An additional factor was that these were Texas cattle, where cows are calved the year round and not, as is common in Montana, programmed to yield calves in the late winter or early spring months. The calves which the cows had already produced had shown a “phenomenal” performance, averaging 492 pounds at the time of weaning. An additional number of the cows were pregnant and likely to calve in late 1976 or early January 1977. Redland, who had in the meantime leased other pasture land in Texas, wanted to buy the joint enterprise cattle for himself to use in stocking his newly acquired Texas leases. He conferred with Berthelson and agreed with Berthelson that he would meet any offer for the livestock up to $225 per head. None of this plan to purchase from the joint enterprise by Redland was confided to Murphy or to his attorney. Redland did however tell Murphy he intended to sell the cattle through the sales ring at the Sidney Livestock Market Center in Sidney, Montana, so Murphy “could protect himself” if Murphy desired to compete for the cattle. Because of the agister’s lien, however, the livestock inspector at Sidney refused to inspect the cattle proposed for sale and Redland was informed before the sale that any proceeds would be impounded pending disposition of the lien. Redland claims this prevented his purchase of the cattle (it is not clear from the record why Redland did not go ahead with the purchase by dealing privately with Berthelson, subject to the lien claim of $42,732). Eventually, the cattle were sold through the sales ring for a lesser sum. The loss of $25,482.04 found by the Court to have been sustained by the joint adventure results from the difference between what Redland testified he would have paid for the cattle and the amount actually realized through the sales ring.
In the same manner, Redland had earlier agreed to sell some of the calves belonging to the joint enterprise to C & L Cattle Company for an agreed price. The presence of the agister’s lien also prevented that sale and when the cows were later sold, the loss sustained by the joint venture was $16,721.04. Again with respect to the calves, nothing of the proposed sale to C & L Cattle Company by Redland was divulged to Murphy, who was entitled to an equal worth on that decision. 48 C.J.S. p. 828, supra.
Here the duty that one member of a joint enterprise owes to the other members comes into play. Redland had a duty, as to Murphy, to exercise the utmost good faith in his handling of the joint enterprise property. He is held strictly to account for the management of the same. He is not permitted, by reason of his possession of the property or the right to manage the same to enjoy an unfair advantage, nor to have any greater rights in the property or profit therefrom, than his coadventurers were entitled to. McIver v. Norman (1949), 187 Or. 516, 213 P.2d 144, 149. He had a duty to keep his coadventurers fully informed. See, Bradbury v. Nagelhus, supra.
His duty is of such a high degree that Judge Cardozo was led to say in Meinhard v. Salmon (1928), 249 N.W. 458, 164 N.E. 545, 546, 547, 62 A.L.R. 1, the following:
“Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this, there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exception. (Citing case.) Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.
“* * * The very fact that Salmon was in control with exclusive powers of direction charged him the more obviously with the duty of disclosure, since only through disclosure could opportunities be equalized * * *. He might steal a march on his comrade under cover of the darkness, and then hold the captured ground. Loyalty and comradeship are not so easily abjured.”
Here the contracts on which the District Court found the damage figure (eventually assessed one-third to Murphy) were contracts that Redland was powerless to make unless he fully divulged the facts to his co-enterpriser, and obtained his consent. We hold that damages cannot be claimed from Murphy on aborted contracts resulting from Redland’s failures as a managing joint adventurer.
In like manner, the contract for the sale of calves to C & L Cattle Company must likewise be disregarded as a base for damages and we so hold.
Equity will refuse to aid a party whose claims had their inception in his own wrongdoing, whether the victim of the wrongdoing is the other party or a third party. Oliphant v. French (1970), 256 Or. 341, 472 P.2d 275, 278.
Our refusal to recognize such damages necessitates a recomputation of the accounting between the parties, which we will discuss under the next caption.
A Proper Accounting Between the Co-Adveriturers
The method adopted by the District Court in its findings and con elusions, to determine the judgment against Murphy, was to compute the losses of the joint venture, add to that the purported losses from the cattle sales, divide the total of those sums by one-third, subtract $ 19,000 from that result and the balance was the amount the District Court determined Murphy owed.
A proper method of determining an account between co-adventurers is set out in 48 C.J.S. Joint Adventures § 1 Id, p. 843. There it is stated:
“In ascertaining profits, from the gross receipts from the business must first be deducted the original capital invested by the members, the value of any tangible property put into the enterprise, and any loans and advances made by any of the members; and each member must be given the proper credit for the amount contributed by him * *
In determining an accounting in this case, the first difficulty encountered is what should be allowed to Murphy for the pasture which he supplied to the joint enterprise. While it is clear from the evidence that the cattle were pastured on lands either leased or owned by him, it is unclear that there was any specific agreement between the parties as to the amount that Murphy was to receive for his pasture. The only specific item of cost to him that can readily be determined from the record is the cost of the Johnstone lease, the sum of $ 19,000. Very probably, considering the number of cattle pastured, and the length of time the cows were on his pasture, he should be entitled to more money for that item. There is however no evidence upon which the District Court or we can determine a larger amount.
If we consider the cost of the grazing lease to be a capital investment by Murphy, the capital investments of the members of the joint enterprise are reflected as follows:
Capital Investments by Joint Venturers:
Cost of Cattle:
April 1976 — Redland.......................$ 10,000.00
April 1976 — Berthelson..................... 158,844,32
$168,844.32
Cost of Lease:
April-June 1976 — Murphy.................. 19,000.00
Total Capital Investment.................... $187,844.32
To determine the profit or loss of the joint enterprise is not difficult. It is a matter of adding up the net receipts on the sale of cattle, and then totaling the costs incurred by the members of the joint enterprise to determine whether there was a profit or loss. In the computation below, we have accepted in full the amounts claimed by Redland through his Exhibit G, although some items in that exhibit are questionable, particularly the charge for his attorney fees. However, the District Court accepted the same, as it accepted the expenses claimed by Berthelson. With those figures, we determine the profit (loss) of the joint enterprise as follows:
Total Sales Receipts (Net):
April 30, 1976 — Roswell, New Mexico bull sale $ 11,018.26
November 3, 1976 — Sidney Livestock Auction . . 94,969.88
November 10, 1976 — C&L Cattle Co........ 40,168.81
November 16, 1976 — Sidney Livestock Auction 44,286.15
Total Receipts.......................... $190,443.10
Total Outgo:
Cost of Cattle................$168,844.32
Cost of Lease................ 19,000.00
Total Outgo:
Redland expenses.............$ .33,481.82
Berthelson expenses.......... 928.31
$222,254.45
Profit (Loss)............................. ($31,811.35)
One-Third to each joint venturer.............($10,603.78) +
Since the coadventure had total receipts of $ 190,443.10, and sustained a loss of $31,81 Í .35, it follows that there remains the sum of $156,032.97 for distribution. This should have been distributed to the members of the coadventure as follows:
Final Capital Accounts of Toint Venturers:
Murphy Redland Berthelson Total
$19,000.00 $10,000.00 $158,844.32 $187,844.32
(10,603.79) (10,603.78) (10,603.78) (31,811.35)
$ 8,396.21 $ (603.78) $148,240.54 $156,032.97
Since the joint venture received a total cash amount of $190,443.10, this should be distributed to the members in reimbursement of their expenses and of their capital accounts, after taking into consideration the loss incurred by the joint adventure. Accordingly, the final cash distribution between the parties should be as follows:
Final Cash Distribution to Members:
Capital Expenses Total
Murphy................ 8,396.21 0 8,396.21
Redland................ (603.78) 33,481.82 32,878.04
Berthelson..............148,240.54 928.31 149,168.85
156,032.97 34,410.13 190,443.10
Since Berthelson is holding the cash proceeds from the sale of the cattle, we hold and conclude that Murphy is entitled to receive from him the sum of $8,396.21, subject however, to the interest which Murphy may owe to Berthelson, a subject which we next discuss.
The Interest Award:
The written agreement provides, as we have indicated, that if one of the members contributed more than his just share of the capital to the joint adventure, he would be entitled to receive interest at the rate of 10 percent per annum from the partner or partners who were deficient in their contribution of capital.
The District Court, in its findings, determined that Murphy owed Berthelson the sum of $2,532.05, but computed from the 29th day of October, 1976 to February 4, 1977.
This is the computation submitted by Berthelson during the time of the trial, but it is patently in error, Berthelson is entitled to receive interest from the date he paid for the cattle, April 10, 1976, to the time when he received the monies from the cattle sales, the last day of which we determine to be November 16, 1976. From and after that time, Berthelson had the money in his hands and it is inequitable to charge Murphy for interest, especially when Murphy is entitled to a cash distribution when a final balance is struck between the members.
We compute the amounts contributed and what should have been contributed in capital as follows:
Murphy Redland Berthelson Total
Capital
Contributed . 19,000.00 10,000.00 158,844.32 187,844.32
One-Third
Each......(62,614.77) (62,614.77) (62,614.78) (187,844.32)
(43,614.77) (52,614.77) 96,229.54 0
Accordingly, Berthelson is entitled to charge Murphy interest on the sum of $43,614.77 at the rate of 10 percent per annum for 220 days beginning April 10, 1976 and ending November 16, 1976. That will result in a sum slightly larger than awarded by the District Court, but it is the proper way to compute the interest amount due to Berthelson. The resulting sum is $2,628.84.
The above figures do not determine what Redland owes Berthelson by way of interest, because Redland was contributing expenses toward the operation of the joint venture from time to time. However, there is not any dispute before us as between Redland and Berthelson with respect to this co-adventure.
In deciding the foregoing, we have set aside in some instances what the District Court found. We have viewed this case as one sounding in accounting between the members of the joint venture, a proceeding equitable in nature. That is how the matter was handled in the District Court. In such a case, this Court has the power to make determinations as we have provided above. In section 93-216, R.C.M.1947, it is provided in part:
“* * * in equity cases, and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless, for good cause, a new trial or the faking of further evidence in the court below be ordered. * * *”
We see no reason to remand this cause for a new trial. Accordingly, we return the cause to the District Court with instruction to enter judgment as between the parties in accordance with the provisions herein set forth. In our view, the appellant is the prevailing party and shall receive his costs on appeal.
Reversed and remanded with instructions.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEA concur.
|
[
15,
31,
-20,
19,
4,
4,
34,
2,
-41,
51,
-9,
-25,
-16,
46,
15,
-26,
-15,
-45,
-6,
-15,
-6,
-77,
-17,
47,
31,
39,
-19,
-41,
-6,
-6,
3,
8,
0,
-19,
-24,
0,
-60,
25,
-16,
0,
41,
6,
-8,
36,
27,
-18,
2,
-19,
13,
19,
39,
-5,
68,
-8,
-56,
-33,
-18,
-14,
-34,
16,
22,
-22,
56,
31,
64,
-21,
-9,
-8,
12,
32,
36,
-11,
-54,
-14,
32,
-28,
38,
-27,
-13,
-15,
5,
39,
48,
9,
-23,
-13,
-29,
-11,
19,
78,
-29,
4,
-23,
41,
17,
23,
4,
-29,
-16,
9,
14,
-25,
-27,
30,
-23,
7,
-45,
49,
17,
19,
-31,
-20,
-19,
-33,
-20,
-6,
-76,
32,
0,
-16,
-65,
29,
-2,
68,
11,
-20,
26,
22,
-4,
16,
-4,
-17,
6,
-30,
-19,
-22,
-41,
-22,
40,
23,
48,
-7,
-13,
-21,
-4,
-27,
-29,
-81,
50,
14,
28,
1,
-21,
20,
13,
-68,
33,
46,
-16,
-50,
3,
-39,
36,
-2,
-41,
59,
8,
-16,
-83,
23,
28,
5,
-49,
-29,
49,
-13,
18,
29,
-9,
-4,
-24,
-11,
-22,
-29,
-8,
88,
27,
52,
-18,
28,
-6,
-65,
-2,
-71,
-36,
-3,
14,
2,
0,
45,
3,
-8,
41,
24,
-12,
-27,
-10,
21,
14,
-31,
-35,
-64,
32,
-34,
-17,
-2,
-56,
-8,
44,
-47,
29,
47,
-32,
18,
-11,
-3,
22,
17,
-7,
-48,
-38,
18,
62,
9,
-20,
-18,
11,
15,
-22,
31,
-5,
-75,
5,
-43,
23,
36,
8,
-24,
5,
59,
-43,
-1,
-35,
32,
-4,
23,
-5,
-44,
-36,
3,
-7,
21,
6,
50,
1,
-55,
-66,
-19,
13,
35,
9,
-11,
45,
15,
-75,
-34,
15,
-33,
9,
-40,
31,
-39,
-2,
45,
21,
40,
-6,
14,
-47,
-9,
-3,
-13,
4,
-4,
47,
-37,
1,
-71,
54,
-21,
-47,
-8,
-4,
6,
-2,
-12,
-37,
-53,
2,
-50,
-11,
-12,
-21,
5,
-25,
-32,
11,
2,
37,
21,
24,
-6,
48,
23,
37,
8,
25,
-8,
-38,
-7,
46,
3,
-4,
43,
-21,
0,
-24,
39,
-22,
60,
25,
12,
-4,
35,
-18,
13,
17,
19,
2,
9,
1,
-6,
-13,
30,
16,
3,
52,
26,
-19,
-40,
39,
-33,
10,
8,
-42,
33,
-29,
-15,
-16,
-5,
26,
51,
56,
-2,
20,
45,
23,
-1,
-4,
-24,
-35,
-14,
-36,
18,
50,
-18,
7,
10,
-42,
45,
1,
-44,
-33,
72,
46,
-35,
13,
-10,
-20,
-26,
47,
-12,
-1,
18,
-1,
8,
26,
-62,
5,
-15,
9,
-32,
-53,
-1,
-38,
-1,
-9,
24,
0,
31,
30,
7,
-5,
-109,
16,
5,
16,
15,
-56,
-18,
-63,
-12,
-41,
-9,
58,
-2,
-3,
-48,
-39,
35,
1,
35,
51,
7,
8,
0,
-4,
20,
14,
-12,
-36,
46,
-16,
18,
-46,
32,
36,
-93,
-25,
-31,
34,
54,
-7,
-73,
10,
-1,
65,
-3,
-13,
18,
0,
61,
35,
48,
-11,
-31,
-13,
10,
-49,
0,
2,
-66,
4,
-31,
23,
-43,
-34,
19,
-42,
60,
37,
51,
45,
-32,
-46,
-18,
83,
20,
56,
0,
-36,
-17,
34,
34,
-7,
2,
-18,
-34,
4,
40,
64,
-66,
-8,
-19,
48,
34,
-19,
36,
20,
15,
6,
15,
-7,
-9,
-23,
-9,
-24,
13,
47,
-44,
-33,
-2,
14,
-38,
-13,
-3,
33,
46,
13,
-30,
28,
-30,
-20,
-6,
-26,
20,
47,
-69,
12,
9,
41,
-13,
17,
34,
30,
28,
-38,
-4,
-59,
12,
-40,
27,
-17,
12,
55,
-34,
-29,
1,
20,
8,
-19,
-13,
15,
3,
71,
-40,
-9,
57,
-52,
57,
-25,
-1,
11,
28,
-49,
14,
39,
0,
13,
5,
12,
-48,
-8,
1,
-28,
31,
-19,
-10,
-73,
10,
-31,
-29,
-62,
19,
-22,
-36,
-11,
12,
-14,
58,
-36,
28,
17,
27,
-16,
-42,
17,
23,
23,
-28,
28,
-18,
-1,
-59,
-6,
9,
-34,
23,
29,
62,
0,
-8,
0,
41,
32,
2,
-8,
14,
-31,
-10,
-11,
-51,
-9,
21,
70,
22,
-13,
-62,
-11,
-39,
5,
14,
-13,
22,
-54,
48,
36,
7,
-9,
-32,
99,
1,
-44,
-26,
-56,
-64,
2,
0,
-31,
1,
17,
-13,
24,
10,
17,
43,
17,
-5,
-1,
47,
13,
-42,
0,
-11,
0,
-16,
5,
5,
-32,
52,
-9,
35,
7,
55,
-34,
-61,
-11,
-26,
-43,
-27,
70,
-23,
-1,
2,
25,
50,
-4,
-41,
-55,
-1,
19,
28,
-7,
31,
33,
-13,
-21,
40,
-54,
-6,
8,
11,
14,
-60,
37,
10,
5,
34,
-6,
-1,
-23,
54,
9,
6,
6,
54,
-2,
1,
-11,
-14,
-15,
-25,
-22,
29,
-22,
24,
-9,
16,
-17,
26,
-2,
-52,
-10,
76,
1,
-18,
-9,
2,
-30,
-49,
55,
-67,
-98,
0,
33,
-20,
44,
-48,
25,
-32,
7,
10,
-80,
16,
19,
-49,
40,
19,
-2,
-15,
-34,
-10,
-31,
-14,
11,
-34,
-29,
67,
62,
-11,
-7,
26,
17,
-41,
-1,
22,
-36,
6,
-18,
-24,
-17,
26,
-5,
-6,
-18,
2,
4,
22,
-10,
52,
-12,
2,
19,
-17,
1,
-12,
-14,
35,
-34,
-3,
-2,
-8,
37,
26,
24,
14,
10,
49,
-59,
36,
-52,
17,
-54,
-5,
43,
-6,
-35,
24,
-48,
25,
3,
-64,
33,
-26,
65,
-16,
-37,
6,
-38,
5,
-50,
2,
-9,
59,
16,
-16,
-66,
-27,
7,
42,
12,
17,
-16,
54,
10,
-27,
46,
8,
-48,
44,
-7,
39,
4,
19,
18,
69,
30,
-4,
70,
-23,
23,
7,
-47,
33,
15,
-31,
15,
40,
39,
5,
16,
-30,
-53,
-12,
-7,
-38,
21,
-71,
-34,
-9,
-15,
-32,
39,
12,
3,
-7,
17,
51,
88,
41,
-13,
-16,
-3,
-19,
-55,
39,
-23,
-59,
12,
27,
44,
12,
-65,
10,
19,
3,
-41,
-8,
60,
71,
-28,
31,
-30,
-25,
-48,
46,
9,
-2,
-26,
-30,
43,
49,
48,
11,
-48,
5,
17,
-48,
-21,
14,
6,
27,
-94,
40,
20,
35,
-69,
29,
4,
27,
-38,
17,
15,
-38,
-8,
-19,
-20,
32,
-65,
6,
15,
-25,
0,
-6,
20,
-32,
-3,
61,
27,
-58,
40,
-16,
-80,
34,
23,
19,
-9,
-16,
-33,
41,
-15,
17,
31,
6,
57,
15,
50,
16,
11,
-69,
-10,
-1,
-45,
-18,
-7,
19,
0,
28,
17,
-46,
-14,
-40,
15,
-32,
-50,
-8,
62,
11,
-33,
0,
-9,
-47,
-10,
4
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Gyme Kelly (Kelly) appeals from the order of the Twentieth Judicial District Court dismissing his petition for postconviction relief. We affirm and address the issue:
¶2 Did the District Court err by dismissing Kelly’s postconviction relief petition as insufficiently pled?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 22, 2010, Poison Police Officer William Cleveland pulled Kelly over for speeding. Officer Cleveland ultimately arrested Kelly for Driving Under the Influence (DUI). Based on his previous DUI convictions, the State charged Kelly with felony DUI and also petitioned to revoke the suspended sentence Kelly was serving for a previous DUI conviction.
¶4 On November 18, 2010, Kelly appeared before the District Court to enter a guilty plea to the felony DUI charge and to admit that he had violated the terms of his suspended sentence. He pled guilty to the felony DUI charge without entering a plea bargain agreement with the State. The District Court accepted Kelly’s guilty plea and also revoked Kelly’s suspended sentence. At a later sentencing hearing, the State made recommendations and the District Court sentenced Kelly to the Montana State Prison for a term of 40 years with 25 years suspended for the felony DUI, and to a term of 15 years on the previous DUI for which Kelly’s suspended sentence had been revoked. The court ordered these sentences to run consecutively.
¶5 On December 30, 2011, Kelly filed a petition for postconviction relief, asserting that he received ineffective assistance of counsel in these proceedings. He alleged that “just prior to sentencing,” his court-appointed attorney told him for the first time that the State had made a more favorable plea offer before he changed his plea to guilty that would have resulted in “a lesser amount of time to be served.” The State responded by asking that Kelly’s petition be dismissed because it failed to provide any factual support for these allegations-i.e., Kelly did not provide affidavits, record evidence, or other evidence. The District Court agreed and summarily dismissed Kelly’s petition for failing to provide factual support for his claim.
¶6 Kelly appeals. Attached to Kelly’s opening brief on appeal is a one-page affidavit in support of his claim. It avers, in toto:
1.1 am the appellant in the above entitled matter.
2. My Counsel at the District Court level was inadequate and failed to inform me in a timely fashion of my choice of alternatives to accepting the plea he presented me.
3. After I signed the plea in its present form, I was informed by my counsel that there was a less harsh plea available but if I were to take it, I would forfeit my chance at Sentence Review.
4. Had I been informed as to the existence of a less harsh plea by my counsel I would have persued [sic] that course of action.
5. If my counsel had informed me as to my legal rights upon any adjudication of guilt being allowed the right to sentence review, I would have persued [sic] a different course of action than I did.
STANDARD OF REVIEW
¶7 When a district court dismisses a petition for postconviction relief as a matter of law, we review that legal conclusion for correctness. Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127 P.3d 422.
DISCUSSION
¶8 Kelly challenges the District Court’s determination that his claim was insufficiently pled and offers that his legal resources were restricted due to his incarceration. He also argues the merits of his claim by citing to Missouri v. Frye, _ U.S. _, 132 S. Ct. 1399 (2012), a recent U.S. Supreme Court case addressing ineffective assistance of counsel at the plea-bargaining stage. He states that, “[i]n Frye, as in this case, the defendant was misinformed of the availability of a plea offer by his court appointed counsel, that would have resulted in doing less prison time.... Since the 2 cases are so similar, it must also stand to reason this appellant has had his 6th Amendment rights violated, and is due relief from the violation.” The State argues that the District Court properly dismissed the petition on procedural grounds and asks that we not consider the affidavit attached to Kelly’s brief because it was not presented to the District Court.
¶9 We have explained that “[u]nlike civil complaints, the postconviction statutes are demanding in their pleading requirements.” Ellenburg v. Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473. Section 46-21-104, MCA, enumerates the mandatory contents of a petition for postconviction relief. It provides, in pertinent part:
(1) The petition for postconviction relief must:
(a) identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the alleged violation or violations;
(c) identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.
Section 46-21-104, MCA (emphasis added); Ellenburg, ¶ 12. We have thus explained that “a petition for postconviction relief must be based on more than mere conclusory allegations. It must ‘identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.’ ” Ellenburg, ¶ 16 (quoting State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, 42 P.3d 753 (quoting § 46-21-104(1)(c), MCA)). Regarding ineffective assistance of counsel, we have held that such claims “must be grounded upon facts which appear in or are easily deduced from the record and which go beyond the mere conclusory allegations in the defendant’s affidavit.” State v. Lewis, 177 Mont. 474, 485, 582 P.2d 346, 352-53 (1978) (overruled on other grounds, Fjelstad v. State Through Dept. of Highways, 267 Mont. 211, 220, 883 P.2d 106, 111 (1994)); accord State v. Hulbert, 232 Mont. 115, 120, 756 P.2d 1110, 1113 (1988) (“a claim of ineffective counsel must be grounded in facts found in the record, not on ‘mere conclusory allegations.’ ”); State v. McColley, 247 Mont. 524, 527, 807 P.2d 1358, 1360 (1991); State v. Hagen, 2002 MT 190, ¶ 19, 311 Mont. 117, 53 P.3d 885.
¶10 These requirements are consistent with federal precedent requiring a defendant to bring forward more evidence than a “self-serving statement.” See Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (“Turner’s self-serving statement, made years later, that [his lawyer] told him that ‘this was not a death penalty case’ is insufficient to establish that Turner was unaware of the potential of a death verdict.”); Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993) (en banc) (rejecting defendant’s ineffective assistance claim because the only evidence submitted by the defendant was a “self-serving affidavit in support of this allegation.”).
¶11 The only facts offered to support the claim are contained in the short affidavit from Kelly, attached to his opening brief on appeal. Kelly’s affidavit is not properly before this Court because it was not submitted to the District Court. See State v. J.C, 2004 MT 75, ¶ 25, 320 Mont. 411, 87 P.3d 501 (“On appeal, we consider only the district court record. ... ‘Parties on appeal are bound by the record and may not add additional matters in briefs or appendices.’ ” (citation omitted)). However, even if the affidavit had been properly submitted, its conclusory statements are insufficient as a matter of law to support a postconviction claim under the precedent discussed above. From Kelly, the affidavit is self-serving, but beyond that, it falls short of identifying “all facts supporting the grounds for relief’ and providing the necessary detail and evidence to establish the factual foundation for the claim. Section 46-21-104(1)(c), MCA. Kelly’s incarceration, as he asserts, may well have hampered his efforts to marshal this information, but these pleading standards must nonetheless be satisfied, and, in fact, have been satisfied by other postconviction claimants who are incarcerated.
¶12 In Frye, the prosecutor sent Frye’s counsel a letter offering Frye a choice between two plea bargains.* Frye, _ U.S. at _, 132 S. Ct. at 1404. The letter stated that the offers would expire in a little over a month. Frye’s lawyer received the letter but never told Frye about it. Frye, _ U.S. at _, 132 S. Ct. at 1404. Frye eventually pled guilty without a plea agreement and was sentenced to a substantially harsher sentence than was recommended in the plea offers. Frye, _ U.S. at _, 132 S. Ct. at 1404-05. Frye filed postconviction relief proceedings in state court. The Missouri Court of Appeals determined that Frye’s counsel had rendered ineffective assistance of counsel by failing to inform Frye of the plea offers. Frye, U.S. at _, 132 S. Ct. at 1405. As a remedy, the Missouri Court deemed Frye’s plea as withdrawn. Frye, _ U.S. at _, 132 S. Ct. at 1405. After the State of Missouri sought review, the U.S. Supreme Court granted certiorari and affirmed, holding “as a general rule, defense counsel has a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, _ U.S. at _, 132 S. Ct. at 1408. Applying the standards under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court determined that Frye’s counsel’s representation “fell below an objective standard of reasonableness” under the first prong of Strickland, and remanded the case for further proceedings to determine whether Frye had been prejudiced under the second prong, noting “there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final.’’Frye, _ U.S. at _, 132 S. Ct. at 1411. Unlike Frye, where the existence of bona fide plea offers and defense counsel’s failure to communicate the offers were undisputed, there is here no record evidence of a formal plea offer or of Kelly’s lawyer’s failure to inform him of a plea offer, other than Kelly’s insufficient affidavit.
¶13 Frye does not override Montana law governing pleading requirements in a postconviction proceeding. The Supreme Court clarified that states are permitted to adopt measures to “help ensure against late, frivolous, or fabricated claims, after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences.” Frye, _ U.S. at _, 132 S. Ct. at 1409. That is precisely what the above-discussed Montana law does.
¶14 Affirmed.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT, BAKER and MORRIS concur.
The prosecutor’s letter, sent on November 15, 2007, stated, in pertinent part: My recommendation is as follows: 3 and defer, on the felony with 10 days “shock” in the Boone County Jail; OR 90 days to serve on an amended misdemeanor in the Boone County Jail.
I am going to subpoena witnesses for the preliminary hearing on January 4,2008.
I will need to know if Mr. Frye will be waiving to preserve the offer by noon on December 28, 2007.
Joint Appendix, Missouri v. Frye, 2011 U.S. S. Ct. Briefs LEXIS 469 at *50.
|
[
4,
4,
22,
66,
-53,
-30,
-3,
-26,
-77,
18,
-28,
-17,
-32,
-21,
-17,
-16,
38,
-31,
39,
-20,
59,
-3,
42,
-23,
-18,
36,
-21,
0,
-3,
-11,
30,
-50,
-28,
-37,
0,
-11,
54,
45,
11,
50,
-23,
3,
-64,
26,
-51,
-24,
-66,
-11,
26,
-8,
8,
-46,
39,
-21,
53,
43,
-53,
1,
0,
36,
-28,
68,
-22,
-50,
-26,
20,
47,
-14,
-42,
-24,
-51,
-14,
-20,
-19,
-27,
25,
-10,
20,
53,
19,
-36,
81,
20,
-21,
63,
-47,
57,
-29,
27,
41,
-10,
-23,
-8,
-48,
-16,
-39,
-21,
-75,
2,
2,
-7,
-45,
3,
35,
8,
-6,
1,
-19,
12,
18,
-1,
-1,
4,
-4,
-53,
-42,
6,
-53,
10,
4,
16,
0,
8,
67,
19,
-66,
12,
2,
-12,
50,
9,
12,
44,
-36,
-12,
-4,
-30,
27,
41,
53,
-51,
16,
25,
-15,
11,
-4,
-8,
-26,
54,
16,
21,
-8,
-29,
-6,
19,
0,
40,
41,
-13,
14,
6,
-32,
-18,
1,
4,
-9,
0,
20,
-1,
-30,
59,
-21,
1,
70,
31,
0,
-44,
9,
-3,
23,
-48,
41,
10,
2,
21,
7,
-9,
65,
21,
-1,
-81,
32,
-8,
-22,
4,
12,
-12,
48,
65,
0,
-33,
15,
33,
4,
-10,
-25,
5,
13,
64,
34,
-33,
-24,
10,
-54,
-58,
-9,
48,
-25,
15,
9,
16,
6,
27,
-24,
-28,
-10,
-33,
6,
-9,
12,
-29,
12,
1,
29,
4,
-24,
14,
-6,
18,
15,
-7,
-3,
13,
-30,
-3,
19,
-10,
-16,
-27,
-22,
53,
15,
55,
-41,
-41,
-21,
60,
31,
-13,
5,
1,
61,
17,
39,
-66,
-21,
10,
34,
39,
35,
13,
-46,
24,
-32,
47,
0,
-37,
28,
25,
37,
-37,
23,
57,
21,
-6,
50,
20,
20,
50,
1,
0,
-59,
-49,
55,
-6,
-61,
-21,
35,
-61,
-9,
11,
4,
-18,
-25,
-18,
-11,
11,
20,
-12,
16,
32,
-2,
-30,
31,
5,
-2,
4,
-9,
50,
-15,
-58,
-15,
-1,
-59,
45,
-65,
42,
-21,
-2,
-61,
7,
-25,
-26,
23,
10,
19,
28,
11,
7,
38,
-1,
-31,
40,
-2,
-26,
55,
14,
30,
36,
8,
-21,
6,
37,
-20,
-1,
-8,
15,
-60,
30,
-85,
-35,
-53,
4,
-23,
43,
11,
15,
26,
-3,
10,
39,
-1,
-53,
-22,
-18,
2,
33,
-19,
-37,
16,
-49,
-34,
0,
-20,
21,
-55,
14,
-37,
-37,
42,
27,
-12,
-30,
-63,
-31,
-30,
14,
2,
31,
27,
15,
13,
25,
-11,
-20,
-21,
40,
37,
2,
-35,
-21,
8,
34,
80,
9,
41,
-43,
-24,
-24,
-55,
-15,
15,
9,
-36,
0,
86,
-10,
41,
-13,
-42,
-13,
12,
35,
-42,
-11,
34,
7,
-49,
0,
-45,
-42,
15,
25,
29,
-12,
66,
-55,
-21,
19,
25,
-52,
8,
57,
32,
23,
69,
73,
13,
-16,
-20,
-16,
78,
-22,
51,
-14,
-30,
-36,
2,
13,
10,
10,
8,
-13,
-11,
33,
7,
14,
17,
13,
-36,
20,
-36,
21,
-41,
-18,
-17,
4,
-49,
-35,
-4,
-30,
-46,
-32,
-14,
-27,
-24,
20,
-4,
-62,
-13,
-14,
-22,
-61,
16,
-15,
-40,
60,
1,
38,
-23,
19,
71,
-1,
-14,
7,
5,
-21,
-19,
79,
19,
-31,
2,
-24,
-39,
-33,
19,
-41,
-42,
3,
1,
25,
41,
27,
-23,
13,
-31,
-14,
-2,
44,
-16,
11,
29,
-75,
-12,
16,
38,
24,
22,
51,
47,
-34,
9,
19,
4,
-2,
-12,
-6,
-29,
3,
-26,
-6,
6,
2,
72,
-27,
21,
25,
-18,
7,
31,
-9,
47,
-56,
7,
18,
-17,
26,
-20,
-23,
-41,
47,
23,
-63,
17,
-57,
0,
51,
0,
30,
-15,
-32,
-30,
3,
-18,
0,
45,
-51,
-29,
9,
35,
0,
-22,
60,
14,
48,
36,
5,
17,
-18,
15,
-16,
11,
-16,
-18,
-12,
-38,
-44,
11,
-35,
19,
-12,
3,
31,
-56,
-28,
-17,
-58,
-6,
4,
-12,
13,
-20,
-7,
-23,
-14,
19,
-33,
54,
-43,
-42,
31,
25,
38,
8,
43,
-9,
12,
27,
-63,
-67,
-34,
18,
-21,
-7,
-25,
-32,
18,
33,
41,
-14,
-45,
31,
-34,
-6,
-30,
-4,
-36,
21,
-13,
31,
0,
-43,
-3,
-12,
27,
12,
25,
-18,
-29,
-13,
11,
-49,
6,
-36,
-54,
18,
-65,
-36,
7,
18,
-17,
34,
-21,
10,
-29,
29,
14,
-5,
11,
-38,
6,
-9,
-10,
-30,
-29,
30,
50,
-18,
10,
32,
26,
43,
-61,
8,
-28,
10,
-7,
16,
-72,
41,
-43,
-29,
-19,
14,
-10,
5,
-71,
-41,
-2,
-35,
28,
-12,
19,
35,
-48,
-6,
-12,
-40,
8,
26,
-12,
-12,
24,
-48,
83,
-9,
13,
22,
21,
-20,
37,
-56,
-23,
56,
-54,
37,
56,
-20,
-84,
39,
-4,
32,
11,
35,
-13,
39,
47,
24,
28,
7,
16,
-44,
17,
35,
-38,
-19,
16,
50,
-30,
-53,
-2,
44,
-53,
26,
-32,
13,
-43,
6,
-35,
33,
-23,
15,
-6,
19,
55,
12,
16,
-24,
-42,
0,
-1,
-9,
21,
-23,
22,
14,
6,
8,
20,
18,
0,
27,
-5,
44,
40,
-3,
14,
2,
1,
-17,
58,
3,
-14,
-11,
54,
0,
39,
30,
0,
-27,
-56,
-17,
42,
45,
-11,
12,
14,
5,
-7,
66,
51,
22,
-3,
-11,
-10,
-9,
17,
29,
12,
38,
-29,
-28,
-29,
23,
-17,
-8,
-10,
-46,
8,
-6,
14,
16,
25,
-30,
-25,
-6,
101,
-16,
21,
10,
65,
-39,
7,
75,
-51,
65,
0,
-29,
-43,
2,
53,
-2,
-22,
-3,
58,
-46,
-52,
-84,
-39,
-10,
-11,
61,
7,
-15,
-35,
40,
22,
9,
2,
-76,
51,
-27,
-25,
-5,
22,
9,
-38,
81,
-22,
52,
-25,
36,
31,
0,
-20,
-5,
-52,
-42,
42,
25,
8,
14,
33,
51,
26,
6,
-15,
-1,
-54,
51,
-22,
-10,
11,
13,
-27,
20,
71,
-19,
-36,
-24,
21,
7,
-37,
7,
-23,
34,
-9,
-57,
8,
-14,
5,
-25,
-18,
43,
-3,
-92,
-24,
48,
29,
34,
-58,
48,
-60,
-22,
-64,
23,
-46,
-14,
-10,
30,
7,
5,
-46,
56,
-3,
-21,
14,
-5,
-2,
-20,
-15,
-3,
12,
-31,
-48,
35,
41,
17,
-49,
0,
30,
11,
-26,
7,
12,
-5,
22,
-45,
-14,
-1,
-36,
48,
-37,
-7,
16,
15,
-29,
11,
-11,
27,
70,
-22,
-32,
-43,
-69,
-14,
32,
25,
3,
58,
-20,
47,
32,
-33
] |
JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 MCR, LLC (MCR) filed an action for condemnation of a compressor station site on property owned by appellees David and Lenora McEwen (McEwens). McEwens counterclaimed against MCR for damage to McEwens’ property. McEwens also claimed punitive damages. McEwens sought restoration costs as the measure of damages for their contract, trespass, and nuisance claims. The parties stipulated to the substitution of MCR Transmission, LLC (MCR-T) for MCR on the condemnation claim.
¶2 The District Court denied MCR-T’s motion for a preliminary condemnation order. The District Court granted McEwens’ summary judgment motion that allowed McEwens to seek restoration costs. The jury awarded restoration costs and punitive damages to McEwens. MCR and MCR-T appeal. We affirm in part, reverse in part, and remand.
¶3 MCR and MCR-T present the following issues on appeal:
¶4 Issue One. Whether the District Court properly denied MCR-T’s motion to condemn McEwens’ property for a compressor station.
¶5 Issue Two. Whether the District Court properly determined that McEwens were entitled to seek restoration costs as the measure of their damages.
¶6 Issue Three. Whether the District Court properly admitted evidence at trial that MCR had jumped McEwens’ hid on state trust land leases.
PROCEDURAL AND FACTUAL BACKGROUND
¶7 McEwens purchased their ranch near the Sweet Grass Hills in Toole County, Montana, in 1992. McEwens took the ranch subject to a lease of two acres by Fulton Fuel Company (Fulton) on which sat a compressor station. MCR-T purchased Fulton’s interest in the compressor station in 2004. MCR-T entered into a five-year lease with McEwens to continue to operate the compressor station.
¶8 MCR operated natural gas wells on McEwens’ property pursuant to MCR’s mineral rights. MCR needed a place to dump produced water from one of its wells. MCR and McEwens entered into a contract that allowed MCR to dump this produced water from one well into a pond on McEwens’ property. The contract required MCR to provide McEwens with water tests of the produced water every six weeks. McEwens wanted the water test results due to the fact that McEwens believed that produced water from a different well had killed some of McEwens’ sheep in 1996. McEwens wanted to ensure that the produced water did not contaminate their pond.
¶9 MCR failed to test the produced water every six weeks as required under the contract. In fact, McEwens alleged at trial that MCR had deposited produced water from two other wells into the pond, including produced water from the sour well that may have killed McEwens’ sheep in 1996.
¶10 MCR also caused significant damage to McEwens’ property over this same time period. MCR employees defecated and littered on McEwens’ property. MCR disturbed McEwens’ property for a variety of pits, tanks, and pipelines. MCR did not reclaim McEwens’ property after it had completed these projects.
¶11 McEwens and their predecessors had leased four 40-acre parcels of state trust land as agricultural grazing for their livestock. McEwens paid $6.97 per animal unit month (AUM). MCR bid on this leased land in 2009. MCR never had ranched or raised cattle or other livestock before it submitted the bid. MCR has not ranched or raised livestock since that time. McEwens alleged at trial that MCR had submitted this bid out of spite and that the bid represented another instance of MCR treating McEwens with malice. McEwens successfully matched MCR’s bid and retained the lease on the state trust land. MCR’s bid forced McEwens to pay $36.97 per AUM. The State ultimately refunded part of this money, but McEwens had to pay almost twice what they had been paying previously as a result of MCR’s bid.
¶12 McEwens and MCR-T failed to reach an agreement to renew the lease for the two-acre parcel where the compressor station sits. MCR filed an action for condemnation of the compressor station site. McEwens counterclaimed against MCR for breach of contract, trespass, nuisance, and violations of the Surface Damages Act, and sought punitive damages. McEwens sought restoration costs as the measure of damages for their contract, trespass, and nuisance claims. The parties stipulated to substitution of MCR-T for MCR on the condemnation claim.
¶13 The District Court dismissed MCR-T’s condemnation claim. The court relied on the holding in McCabe Petroleum Corp. v. Easement & Right of Way Across Township 12 N., 2004 MT 73, 320 Mont. 384, 87 P.3d 479, that eminent domain power cannot be implied or inferred from vague language, and that it must not exist merely by implication. McCabe, ¶ 12. The District Court determined that the legislature’s failure to enumerate compressor stations in the list of public uses in § 70-30-102, MCA, excluded a compressor station as a public use. This determination left MCR-T unable to pursue its condemnation action.
¶14 The District Court issued an order on summáry judgment that McEwens could seek restoration damages for their breach of contract, trespass, and nuisance claims. The District Court instructed the jury at the close of trial that it could award McEwens’ costs necessary to restore McEwens’ property to the condition in which it existed before MCR dumped the produced water. The District Court allowed McEwens to introduce evidence that MCR had jumped McEwens’ bid on state trust land. The jury awarded restoration costs and punitive damages to McEwens. MCR and MCR-T appeal.
STANDARD OF REVIEW
¶15 We review for correctness a district court’s conclusion of law. Varano v. Hicks, 2012 MT 195, ¶ 7, 366 Mont. 171, 285 P.3d 592. We review de novo a district court’s grant of summary judgment. Lampi v. Speed, 2011 MT 231, ¶ 10, 362 Mont. 122, 261 P.3d 1000. Summary judgment may be granted only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Lampi, ¶ 11.
¶16 A district court possesses broad discretion when it determines the admissibility of evidence. McCormack v. Andres, 2008 MT 182, ¶ 22, 343 Mont. 424, 185 P.3d 973. We review for abuse of discretion a district court’s evidentiary rulings. McCormack, ¶ 22. A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or so exceeds the bounds of reason as to work a substantial injustice. McCormack, ¶ 22.
DISCUSSION
¶17 Issue One. Whether the District Court properly denied MCR-T’s motion to condemn McEwens’ property for a compressor station.
¶18 Eminent domain involves the State’s inherent right to take private property for public use. Section 70-30-101, MCA. The Montana legislature further has endowed private individuals with eminent domain power for specific activities that the legislature has deemed public uses. Section 70-1-205, MCA.
¶19 Section 70-30-111(1), MCA, first requires MCR-T to demonstrate that its proposed use of McEwens’ property qualifies as a public use under § 70-30-102, MCA. MCR-T then must demonstrate that it needs McEwens’land for the proposed public use. Section 70-30-111(2), MCA. MCR must demonstrate both of these factors by a preponderance of the evidence. Section 70-30-111, MCA.
¶20 The legislature has declared gas pipelines to constitute a public use. Section 70-30-102(4), MCA. MCR-T argues that natural gas compressor stations represent an essential component to distribute natural gas through a pipeline. MCR-T alleges that the natural gas that it seeks to transport remains static in the pipelines at a pressure of approximately 20 pounds per square inch. The compressor station raises the pressure on the gas from 20 pounds per square inch to above 600 pounds per square inch to move the natural gas in the pipeline. MCR-T claims that it would be unable to deliver natural gas through the pipeline without a compressor station.
¶21 We strictly construe the legislature’s grant of eminent domain power. McCabe, ¶ 14. We look to the plain language set forth by the legislature and do not imply a more extensive grant of power. McCabe, ¶ 14. We also interpret the statute to avoid absurd results. Mont. Power Co. v. Cremer, 182 Mont. 277, 280, 596 P.2d 483, 485 (1979).
¶22 The legislature has provided that pipelines that transport gas constitute a public use. Section 70-30-102(4), MCA. Compressor stations sometimes prove necessary to force natural gas through a pipeline. We agree with MCR-T that an absurd result would ensue if we allowed a private party to exercise eminent domain power to construct and operate a pipeline, but did not allow the same private party to exercise eminent domain power to construct and operate a compressor station necessary to make the pipeline work properly. Mont. Power Co., 182 Mont. at 280, 596 P.2d at 485. The legislature intended to allow a private party to exercise eminent domain power both for a gas pipeline and also for a compressor station required for the gas pipeline to transport natural gas.
¶23 This determination does not end the inquiry. Section 70-30-111(2), MCA, further requires MCR-T to show, by a preponderance of the evidence, that the taking of McEwens’ property “is necessary” to MCR-T’s proposed public use. McEwens do not seem to dispute that MCR-T needs a compressor station somewhere in the vicinity to pressurize natural gas that otherwise would remain static in the pipeline. MCR-T seeks a summary judgment order that McEwens’ property proves necessary as the location for the compressor station. McEwens also presented evidence, however, that other similarly situated land, not owned by McEwens, may be available for MCR-T to locate a compressor station. McEwens’ evidence raises a genuine an issue of material fact as to whether McEwens’ property proves necessary for the compressor station. Section 70-30-111(2), MCA. The existence of this genuine issue of material fact precludes summary judgment.
¶24 We reverse and remand for further proceedings to resolve whether MCR-T can meet all of the criteria contained in § 70-30-111, MCA. MCR-T must meet all of the criteria before § 70-30-111, MCA, would allow MCR-T to exercise eminent domain authority. These criteria include whether the placement of the compressor station on McEwens’ private property proves necessary to MCR-T’s operation of its natural gas pipeline. Section 70-30-111(2), MCA. The parties can present evidence regarding all issues related to the necessity of McEwens’ property as the site of MCR-T’s compressor station before the District Court.
¶25 The District Court also may address on remand McEwens’ claim that MCR-T seeks to use the land on which the compressor station sits for purposes not delineated under § 70-30-102, MCA. These alleged uses include holding field meetings, parking contractor equipment, and storing an aboveground diesel tank and an aboveground gas tank. The court can assess in the first instance McEwens’ arguments that these ancillary uses exceed the scope of § 70-30-102, MCA.
¶26 Issue Two. Whether the District Court properly determined that McEwens were entitled to seek restoration costs as the measure of their damages.
¶27 On the third day of trial, the District Court granted McEwens’ motion on whether they were entitled as a matter of law to seek the costs of restoring their property as the measure of damages. The court’s decision allowed McEwens to present evidence to the jury about the cost of restoring their property.
¶28 This case follows our decisions in Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079, and Lampi. We take this opportunity to clarify our approach to a party’s claim for damages to property. Diminution in property value has long been recognized as a measure of damages for injury to property. Sunburst, ¶ 30; Burk Ranches v. State, 242 Mont. 300, 305, 790 P.2d 443, 445-46 (1990). An award of damages equivalent to diminution in property value places the plaintiff in the position that he would have been but for the injury where the costs to restore the property correspond with the diminution in property value. By contrast, where the costs of restoring the property to the condition in which it existed before the injury exceeds the diminution in property value, a party will not be made whole by an award of diminution in property value. Sunburst, ¶ 37; Lampi, ¶ 21.
¶29 We rejected a strict cap on property damage in Sunburst. This Court instead adopted the Restatement (Second) of Torts § 929 cmt. b, to allow a party to elect restoration costs as his measure of damages in appropriate cases. Sunburst, ¶ 38; Lampi, ¶¶ 22-23. We use the term “restoration damages” as shorthand to refer to an award of damages that disproportionately exceeds the diminution in value of the property and reflects the amount that the party will be forced to spend to restore his property to its previous condition. An award of restoration damages may be necessary in certain cases to compensate fully an injured party. Sunburst, ¶ 33.
¶30 A party must show in all cases that the property damage represents a temporary injury in order to receive restoration costs. Lampi, ¶ 32; Burley v. Burlington N. & Santa Fe Ry. Co., 2012 MT 28, ¶ 98, 364 Mont. 77, 273 P.3d 825. To be eligible to receive restoration costs disproportionate to the diminution in value, however, the party also must show that the plaintiff possesses personal reasons for wanting to restore the property to its prior condition. Lampi, ¶ 29. No requirement to establish personal reasons exists when the restoration costs do not exceed disproportionately the diminution in value of the property. The threshold disproportionality determination between the restoration costs and the diminution in value triggers the personal reasons analysis. Restatement (Second) of Torts § 929 cmt. b; Sunburst, ¶ 38.
¶31 To reiterate, a party must establish the threshold factor of a temporary injury whenever the party seeks restoration costs. A temporary injury includes damage to property that can be restored to substantially the same condition that the property had been before the injury. Lampi, ¶ 32; Burley, ¶ 98. A party must establish the threshold factor of personal reasons only when the party seeks restoration costs disproportionately in excess of the diminution in value. The personal reasons analysis includes a determination of whether the plaintiff genuinely intends to restore the property. Lampi, ¶ 31.
¶32 The cost of restoring the land beneath the contaminated ponds on McEwens’ property to its previous condition exceeded the value of the property. McEwens’ contaminated property had an estimated value of between $850 and $2400. The evidence at trial demonstrated that the cost of restoring McEwens’ contaminated property fell between $138,000 and $2.2 million. This disproportionality between the restoration costs and the diminution in value required McEwens to establish personal reasons in order to be eligible to recover restoration costs. Restatement (Second) of Torts § 929 cmt. b; Sunburst, ¶ 38; Lampi, ¶ 23.
Summary Judgment on Restoration Damages
¶33 Whether a plaintiff qualifies for restoration damages ultimately presents a question of law. Sunburst, ¶ 28. The availability of restoration damages depends, however, on the existence of certain facts. Lampi, ¶ 48. Whether a party possesses personal reasons for wanting to restore the property, and whether the injury to the property can be classified as temporary, determine the injured party’s eligibility for restoration damages. Lampi, ¶ 23. A fact-finder must resolve any genuine issues of material fact as to the existence of these two predicate facts. Lampi, ¶ 48. This factual finding guides the court in determining the proper measure of damages.
¶34 A court may enter a judgment as a matter of law as to these factual questions only if reasonable minds could not differ on whether the injury to the property qualifies as temporary and whether the plaintiff possesses personal reasons for wanting to restore the property. Lampi, ¶ 44. MCR argues that the question of whether McEwens presented sufficient personal reasons for seeking to restore their property presents a question of fact for the jury to decide. Lampi, ¶ 48. We agree. Lampi, ¶ 48. This case went to trial, however, before this Court had issued its decision in Lampi that clarified that these underlying factual questions should be resolved by the jury. Lampi, ¶ 48.
f 35 The District Court and the parties all believed that McEwens’ entitlement to restoration damages properly presented a question for the District Court to decide on summary judgment. The parties did not recognize that the existence of personal reasons, or the temporary nature of an injury, generally present factual questions for a fact-finder to resolve. The District Court should have allowed the jury to resolve the conflicting genuine issues of material fact presented by the parties regarding whether McEwens possessed personal reasons for seeking to restore the property. As a result, we first evaluate whether the District Court’s decision that McEwens were entitled to restoration damages as a matter of law qualifies as harmless error under the facts of this case. An error mandates our reversal of the district court when the error caused substantial prejudice. In re Marriage of Stevens, 2011 MT 124, ¶ 22, 360 Mont. 494, 255 P.3d 154; In re S.C., 2005 MT 241, ¶ 29, 328 Mont. 476, 121 P.3d 552; M. R. Civ. P. 61 (2009).
¶36 The jury heard all of the evidence that the District Court used in making its decision that McEwens were entitled to restoration damages as a matter of law. McEwens presented evidence to the jury regarding the temporary nature of the injury. The produced water created excessive sodium levels in the soil beneath the pond. Dr. James Bauder testified that the soil beneath the pond could be removed and replaced at a cost of $2.2 million. Dr. Bauder further testified that the excess sodium, alternatively, could be removed from the soil at a lower cost with the help of chemicals or other soil amendments. Dr. Bauder expressed skepticism, however, that this alternative would restore the pond fully because this method would require water drainage through the soil.
¶37 MCR concedes the temporary nature of the damage to McEwens’ property. Its own expert, Mr. Fehringer, testified that the soil beneath the pond would drain sufficiently that soil amendments would be effective to restore the property substantially to its condition before the contamination. Mr. Fehringer testified that this process would cost $138,000. Mr. Fehringer conceded that his estimate assumed certain conditions, the absence of which would increase the restoration costs.
¶38 McEwens also presented evidence to the jury about their personal reasons for wanting to restore their property. A landowner’s motivation for holding property provides useful guidance with regard to the question of whether personal reasons exist. Lampi, ¶ 39. David McEwen and Lenora McEwen testified that ranching represents their way of life. They live and work on the ranch. McEwens believe that they have a duty to maintain the condition of their property for future generations. They intend to pass their property to their children so that their children can continue to ranch.
¶39 McEwens further testified to their use of the pasture on which the contaminated pond sits. This use amounts to grazing cattle for several months each year. The contamination from the produced water forced the McEwens to stop using the pasture. The closure of this pasture forced McEwens to buy additional feed for their livestock because they no longer could graze their livestock in the pasture with the contaminated pond. McEwens testified to the availability of other nearby sources of water. MCR elicited this information through cross-examination of McEwens. MCR’s cross-examination further elicited the fact that McEwens’ personal recreational use of the pond amounted to a single ice-skating outing during the past 20 years.
¶40 The introduction of this evidence at trial permitted the jury to consider this evidence when it assessed the liability of MCR and when it decided whether to award damages to McEwens. The court instructed the jury that the McEwens would be entitled to recover “the amount of money required to put them in the position they would have been if MCR had not breached its contractual obligations.” The court separately instructed the jury regarding any damage to McEwens’ property: “the damages awarded should return the party injured to the same, or nearly as possible to the same condition as he enjoyed before the injury to his property.” The court further limited the award for damages to property to “all costs that reasonably would be necessary” to restore the McEwens’ property to the condition it would have been absent the contamination.
¶41 These jury instructions permitted the jury to award damages to McEwens that exceeded the value of McEwens’ property. These jury instructions did not require the jury, however, to award an amount in excess of the value of McEwens’ property. In each instance, the court instructed the jury that it “may” award restoration costs on the tort claims and that McEwens “may” recover restoration costs for damage to property. The jury heard McEwens’ testimony that they rarely used the contaminated pond for recreational purposes. The jury also heard McEwens’ admission that other nearby sources of water existed. The jury considered these factors as it determined whether to award restoration damages that exceeded the diminution in value of McEwens’ property.
¶42 We cannot say that the District Court’s decision that McEwens were entitled to restoration damages as a matter of law substantially prejudiced MCR. MCR conceded the temporary nature of the injury. The jury heard all of the evidence related to whether McEwens had personal reasons for wanting to restore their property. The District Court instructed the jury regarding its ability to award reasonable damages. The District Court’s decision to grant McEwens motion for their entitlement to restoration damages as a matter of law qualifies as harmless error under these conditions. In re S.C., ¶ 29.
“Objectively Reasonable” Use
¶43 MCR further argues that the jury separately must find the property owner’s personal reasons to be “objectively reasonable.” McEwens contend that the District Court’s decision that McEwens were entitled to restoration damages as a matter of law precluded the jury from assessing this element of restoration damages. MCR points to Osborne v. Hurst, 947 P.2d 1356 (Alaska 1997), where the trial court improperly disregarded evidence in the record of the plaintiffs’ interest in the property’s unique views and abundant trees. The court noted that the plaintiffs’ personal reason must itself be “objectively reasonable.” Osborne, 947 P.2d at 1360.
¶44 MCR suggests that the jury must have found that it was reasonable for McEwens to use the damaged property for several months each year to graze their livestock. MCR further argues that the jury must have found that it was reasonable for the McEwens to want to restore the damaged pond due to the existence of other nearby sources of water.
¶45 The personal reasons analysis aims to ensure that a property owner does not receive a windfall by inquiring into whether the property owner actually intends to use a damage award to restore the property. Lampi, ¶ 39. We declined in Lampi to adopt “a genuine intent to restore property as a separate element of proof.” Lampi, ¶ 31. We likewise decline to adopt this separate “objectively reasonable” requirement as a separate element of proof. The personal reasons analysis subsumes both the reasonableness of a plaintiffs use of property and the genuineness of a plaintiffs intent to restore the damaged property. Lampi, ¶ 31.
Commercial Use of Property
¶46 MCR argues on appeal that we should not extend the type of property use eligible for restoration damages beyond the residential use allowed in Sunburst and the recreational use allowed in Lampi. We adopted restoration costs as an appropriate measure of damages based on the reasoning of the Restatement (Second) of Torts § 929 in Sunburst. Several weeks later we decided Shammel v. Canyon Res. Corp., 2007 MT 206, 338 Mont. 541, 167 P.3d 886.
¶47 The owners of three commercial family ranching operations alleged claims of trespass, negligence, and nuisance related to contamination of aquifers on their ranch properties from neighboring mining activity. The three ranching families later amended their complaint to allege a constitutional tort pursuant to Montana Constitution, Article II, Section 3, and Article IX, Section 1. We dismissed the constitutional tort based on the fact that the three ranching families “provided no indication that traditional tort remedies, amplified by restoration damages, will not afford them complete redress for the environmental damage.” Shammel, ¶ 9. Nothing in Shammel indicates any concern that restoration damages would be available to the owners of a commercial ranching operation. Shammel, ¶ 9.
¶48 The fact that a plaintiff demonstrates a desire to continue to use the damaged property instead of selling it, rather than the particular purpose to which a party puts the property, generally drives the personal reasons analysis. Sunburst, ¶ 38. In G&A Contractors v. Alaska Greenhouses, 517 P.2d 1379 (Alaska 1974), defendants’ rerouting of a creek that crossed plaintiffs land caused extensive damage to trees and ground cover. Plaintiff, a family-owned nursery business, planned to use the damaged property as a showroom for its plants. The court affirmed an award of restoration damages to the plaintiff who wanted to use the damaged land as part of its commercial nursery. Alaska Greenhouses, 517 P.2d at 1387; see also Andersen v. Edwards, 625 P.2d 282, 288 (Alaska 1981).
¶49 The court in Board of Co. Comm’rs v. Slovek, 723 P.2d 1309 (Colo. 1986), declined to adopt rigid rules for the type of property use for which an owner may seek restoration damages. The court declared that “[ejach case must be evaluated under its own circumstances.” Slovek, 723 P.2d at 1315 fn5. The court in Roman Catholic Church v. La. Gas, 618 So. 2d 874, 880 (La. 1993), approved restoration damages for a plaintiff who operated a low-income housing project that Louisiana Gas negligently had damaged through a fire. In Sunburst we cited with approval the Louisiana court’s conclusion that plaintiffs desire to provide housing to low income families constituted a valid personal reason under the Restatement (Second) of Torts § 929 to support restoration damages. Sunburst, ¶ 35 (citing Roman Catholic Church, 618 So. 2d at 880).
¶50 This Court has sought to ensure that an injured property owner does not profit from restoration damages. Sunburst, ¶ 40. This focus on a potential windfall ensures that a property owner who recovers an award of restoration damages does not pocket the money instead of using the money to restore the damaged property. The Court’s concern with a windfall focuses on the property owner’s duty to restore the property. Lampi, ¶ 39. This concern with the windfall does not preclude, however, the property owner from earning money through his continued use of the property that he seeks to restore. Alaska Greenhouses, 517 P.2d at 1387; Roman Catholic Church, 618 So. 2d at 880.
¶51 A property owner who satisfies the personal reasons requirement may seek to recover restoration costs for a commercial family ranch, where the family lives and earns its living, in the same manner that a property owner may recover restoration damages for a personal residence, or for land used for a personal residence and recreation uses. No one rigid rule guides the appropriate measure of damages to real property. We have allowed restoration costs to be awarded in a case involving damages to residences and a school in Sunburst, and damages to land used for a residence and for recreation in Lampi. We will evaluate each future claim “under its own circumstances.” Slovek, 723 P.2d at 1315 fn5.
Objectively Reasonable Damages
¶52 MCR argues finally that McEwens sought an objectively unreasonable amount of damages. MCR argues that our restoration damages cases allow McEwens to recover restoration damages only if McEwens seek an objectively reasonable amount. MCR correctly notes that a jury cannot award unreasonable damages to McEwens. Section 27-1-302, MCA; Ehly v. Cady, 212 Mont. 82, 97, 687 P.2d 687, 695 (1984). MCR confuses, however, the timing of this reasonableness analysis.
¶53 The party presents the jury with evidence regarding the cost to restore his property to its pre-injury condition. The jury determines how much to award, if any, to the damaged property owner. A court may review the jury’s damage award to ensure that it qualifies as reasonable and is not so grossly out of proportion to the injury as to shock the conscience. Kiely Const., L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 102, 312 Mont. 52, 57 P.3d 836.
¶54 Sunburst assessed on appeal the reasonableness of the amount of restoration damages awarded in response to the tortfeasor’s concern of a potential windfall. Sunburst, ¶¶ 45-49. We declined to set a strict cap on restoration damages, in part, to avoid any incentive for a potential tortfeasor to undertake a dangerous activity content with the knowledge that the costs of remediating potential harm to neighboring property would be limited. Sunburst, ¶ 46. We further recognized that areas with great ecological value may have little or no commercial value. Sunburst, ¶ 48.
¶55 A strict cap on damages would deny any meaningful remedy for the harm to areas with limited commercial value. Sunburst, ¶ 46. The court in Com. of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 673 (1st Cir. 1980), refused to limit restoration damages to diminution in value where an oil spill affected an environmentally-sensitive area with an alleged market value of $5,000 per acre. The court in Nampa & Meridian Irr. Dist. v. Mussell, 139 Idaho 28, 34, 72 P.3d 868, 874 (Idaho 2003), recognized that the cost of repairing or restoring an irrigation ditch represented an appropriate measure of damages as the easement had no value other than as a water conveyance.
¶56 The courts’ reasoning in Nampa & Meridian Irr. Dist., SS Zoe Colocotroni, and the implication derived from Shammel resonate here. Rural agricultural land in many regions of Montana has a low commercial value. Testimony at trial pegged the value of the property beneath the contaminated pond between $850 and $2400. McEwens’ preferred method to restore the contaminated property would cost $2.2 million. A less costly alternative method could help restore the property. MCR argued that the contaminated property could be restored for $138,000, subject to certain conditions. The District Court instructed the jury to limit damages to “all costs that reasonably would be necessary” to restore McEwens’ property to the condition in which it had existed before the contamination. The jury appears to have heeded the court’s instruction as it rejected the $2.2 million request for a perfect restoration and instead awarded $310,400, an amount that comports more closely with MCR’s proposed restoration alternative of $138,000.
Restoration Damages for Breach of Contract
¶57 McEwens alleged that MCR had damaged McEwens’ property either by MCR not properly testing the produced water or by MCR deliberately dumping produced water from sour wells into McEwens’ pond. A party generally would frame the claims related to the produced water as either trespass or nuisance. McEwens also had a contract with MCR, however, that allowed MCR to dump some produced water into McEwens’ pond.
¶58 MCR could dump this produced water under the contract only if the produced water came from one specific well and only if MCR tested the water every six weeks. McEwens alleged that MCR failed to adhere to both of these contractual terms. As a result, McEwens alleged that MCR’s dumping of produced water transformed from acceptable behavior under the contract into a breach of the contract, as well as a trespass and a nuisance. This interplay among the trespass claim, the nuisance claim, and the breach of contract claim, allowed the jury to approve a damage award for any, or all, of the claims. Sunburst, ¶¶ 24, 67.
¶59 The jury must have found that the damage to McEwens’ property resulted from the breach of contract before the jury could award damages to McEwens for MCR’s breach of the contract. Ehly, 212 Mont. at 97, 687 P.2d at 695. Two types of contract damages exist. Natural damages represent the direct and natural result of the contract breach. Ehly, 212 Mont. at 97, 687 P.2d at 695. Contemplated damages fall within the “contemplation of the parties when they entered into the contract.” Martel Constr. v. State, 249 Mont. 507, 511, 817 P.2d 677, 679 (1991) (internal citation omitted). Contemplated damages permit recovery for “consequential damages ... such as might naturally be expected to result from [the contract’s] violation.” Martel, 249 Mont. at 511, 817 P.2d at 679.
¶60 Contemplated damages may be awarded if the parties were aware that the damages would result from a breach of contract. This Court in Ehly upheld a damage award for a lost tax investment credit that Ehly anticipated that he would receive when he entered into the contract to purchase land. The defendant breached the contract and Ehly lost his tax investment credit. “Ehly made no secret that a tax savings was one of his objectives in buying the property. The failure of the [defendants] to perform their obligations under the contract... was the legal cause of the lost opportunity.... These damages were reasonably foreseeable.” Ehly, 212 Mont. at 97-98, 687 P.2d at 695.
¶61 Again in Stensvad v. Miners & Merchants Bank, 196 Mont. 193, 640 P.2d 1303 (1982), this Court upheld an award of consequential damages that naturally resulted from the breach of contract. Stensvad had contracted with the bank to borrow money on an ongoing basis to purchase feed for his livestock feed lot. The bank’s concern about Stensvad’s ability to repay the money prompted the bank to breach its contractual obligation to continue to loan money to Stensvad. The bank also wrongly foreclosed on Stensvad’s feed lot and other assets. The bank’s wrongful foreclosure forced Stensvad to forfeit money that Stensvad had used to purchase cattle. This Court determined that such damages “were proximately caused by the take-over, and in the ordinary course of things would be likely to result therefrom.” Stensvad, 196 Mont. at 212-13, 640 P.2d at 1314. This Court upheld this portion of the damage award.
¶62 The terms of the contract help demonstrate whether the parties contemplated that certain damages may result from breach of the contract. Garden City Floral Co. v. Hunt, 126 Mont. 537, 255 P.2d 352 (1953). The terms of the contract in Garden City Floral demonstrated that the parties had contemplated that breach of the contract could result in the collapse of a building. The contract required the builder to underpin a wall to stabilize it to prevent the wall from collapsing. The builder failed to underpin the wall. The wall collapsed. The collapsed wall caused the entire building to collapse.
¶63 The contractual term that required the wall to be underpinned demonstrated that the parties had contemplated that the wall could collapse if the contract were breached. This Court held that the collapse of the entire building represented the natural result of the collapse of a wall of the building. The contractual terms established that the parties reasonably contemplated this result. Garden City Floral, 126 Mont. at 542, 255 P.2d at 355.
¶64 MCR and McEwens’ understood that MCR’s failure to abide by the terms of the contract could contaminate McEwens’ pond. McEwens insisted that MCR test the produced water every six weeks. McEwens instructed MCR to limit the source of the produced water to one specific well. McEwens suspected that produced water from another well previously had killed some of McEwens’ sheep. McEwens explained to MCR that these terms were essential to the contract because McEwens believed that produced water could be a threat to their livestock. The inclusion of these terms in the contract reflects the fact that the parties had contemplated potential contamination of McEwens’ pond when they entered the contract. Garden City Floral, 126 Mont. at 542, 255 P.2d at 355.
¶65 We now must consider whether McEwens’ restoration costs qualify as an appropriate measure of consequential damages for a breach of contract claim under these circumstances. Contract damages seek to place a party in the position in which they would have been had the other party not breached the contract. Textana, Inc. v. Klabzuba Oil & Gas, 2009 MT 401, ¶ 52, 353 Mont. 442, 222 P.3d 580. This aspiration holds true even if the breach of contract caused damage to property. As this Court recognized in Bos v. Dolajak, 167 Mont. 1, 6, 534 P.2d 1258, 1260 (1975), “[wjhere damage to property is concerned, the purpose of awarding damages is to return the party injured to the same, or as nearly possible the same, condition as he enjoyed before the injury to his property.”
¶66 Damages for breach of contract serve the same purpose as restoration damages: to make the injured party whole, but not to make the injured party better off than they were before the damage occurred. Bos, 167 Mont. at 6, 543 P.2d at 1260. To recover restoration damages, a party must show that he has personal reasons for wanting to restore the property. This requirement ensures that the injured party does not keep the money as a windfall, instead of using the damage award to restore the property. Lampi, ¶ 39. The same purpose applies to an award for breach of contract. The injured party is “to be made as nearly whole as possible-but not to realize a profit.” Bos, 167 Mont. at 6, 543 P.2d at 1260.
¶67 Restoration damages also permit an injured party to receive a damage award that exceeds the replacement cost of the damaged property. Sunburst, ¶ 46. This Court long has recognized that contract damages may exceed the value of the damaged property. For example, in Bos two brothers operated a commercial dairy farm. The brothers contracted with defendants to erect a grain silo. The brothers had planted additional grain in the spring with the expectation of storing their additional grain in their soon-to-be erected grain silo. The defendants’ faulty installation caused the grain silo to fail during a windstorm. The jury’s damage award included the cost of a new silo and plaintiffs’ lost use of the old silo after it had been destroyed. Bos, 167 Mont. at 3-4, 543 P.2d at 1259.
¶68 Defendants argued that the costs should have been capped at replacement value of the silo. This Court approved the damage award in excess of the replacement value of the silo. Plaintiffs had personal reasons for the damages in excess of the replacement cost. The silo would serve as an integral part of plaintiffs’ dairy farm. Plaintiffs had relied on the silo to store the additional grain that they had planted. Further, the silo was not readily replaceable. Bos, 167 Mont. at 8, 543 P.2d at 1261. The damage award in excess of the value of the silo placed plaintiffs in the position they would have been had defendants not breached the contract. Bos, 167 Mont. at 10, 543 P.2d at 1262.
¶69 Again in Chandler v. Madsen, 197 Mont. 234, 642 P.2d 1028 (1982), this Court approved contract damages in excess of replacement value. Plaintiffs purchased a house from the defendant. Defendant had built the house on moisture sensitive soil. The soil collected water and the house settled. The floors buckled, windows broke, and the fireplace and bathtub separated from the wall. Chandler, 197 Mont. at 236-37, 642 P.2d at 1030. The jury’s award of damages exceeded the plaintiffs’ initial purchase price of the house. Chandler, 197 Mont. at 237-38, 642 P.2d at 1030-31.
¶70 Defendant argued that the damages should be capped at the initial purchase price of the house, rather than the cost of restoring the house. Defendant further argued that consequential damages, including temporary rental, moving, and storage costs, should not be granted. This Court noted that men have devised formulas for determining the monetary value of property partially damaged or destroyed. The Court determined that “[w]hile such methods serve as useful guides, the final answer must rest in good sense rather than mechanical application of such formulas.” Chandler, 197 Mont. at 242-43, 642 P.2d at 1033. The goal of compensating fully the injured plaintiffs for their repair costs justified the damage award that exceeded the replacement cost of the house. Chandler, 197 Mont. at 244, 642 P.2d at 1034.
¶71 In contract, as in tort, diminution in value may not always correspond with the extent of the plaintiffs injury. When a plaintiff seeks to continue to use the damaged property instead of selling it, diminution in value may not compensate the plaintiff adequately. Sunburst, ¶ 38. If the costs of restoration exceed the fair market value of the property, the plaintiff will be forced either to sell property he wishes to keep, or to make the repairs with his own money. Sunburst, ¶ 35. The option of restoration damages may compensate fully a property owner when diminution in value fails to provide an adequate remedy. Sunburst, ¶ 33.
¶72 MCR argues that restoration damages for breach of contract claims should not be available automatically to plaintiffs when the costs to restore the property to its previous condition disproportionately exceeds the diminution in value of the property. Rather, MCR argues, plaintiffs should have to demonstrate they have a temporary injury and personal reasons before they become eligible to seek restoration damages in excess of the property value. We agree. Both contract and tort damages restrict recovery to prevent the party from receiving a windfall. Bos, 167 Mont. at 6, 543 P.2d at 1260. To require a party with a breach of contract claim that caused damage to property to demonstrate that he intends to use the damage award to restore the damaged property will prevent the party from receiving a potential windfall. Lampi, ¶ 39. Similarly, requiring the party to demonstrate that the damaged property can be restored substantially to its earlier condition will help to ensure that the party will use the damage award to restore the property. Lampi, ¶ 32; Burley, ¶ 98.
¶73 McEwens presented evidence to the jury that satisfied the criteria to receive the cost of restoring their contaminated property as the measure of their damages for their breach of contract claim. The fact that the parties contemplated this type of injury from a breach of contract by MCR, as evidenced by the inclusion of the contractual requirement that MCR test the produced water and that MCR dump produced water only from an approved well, further buttresses this conclusion. The fact that these damages arose from MCR’s breach of the contract between the parties, as opposed to a tort, changes nothing with regard to the outcome.
¶74 Issue Three. Whether the District Court properly admitted evidence at trial that MCR had jumped McEwens’ bid on state trust land leases. ¶75 McEwens and their predecessor leased four parcels of state trust land for ten-year terms. MCR bid on these four parcels of land in 2009, during the time of the disagreement between McEwens and MCR over the natural gas compressor station and MCR’s disposal of the produced water. MCR’s bid forced McEwens to pay double in order to retain the lease. The District Court permitted McEwens to introduce evidence of MCR’s attempt to jump their lease on state trust land as part of McEwens’ case for punitive damages against MCR.
¶76 MCR had no apparent use for the state trust land at issue. MCR had not previously ranched or raised livestock. MCR has not ranched or raised livestock since it submitted the bid on the state trust land. Two of the four parcels on which MCR bid were landlocked by McEwens’ property and would have been inaccessible to MCR. MCR argued at trial that it had bid on the leases because MCR had entered into a buy/sell agreement on ranch property that borders McEwens’ property. MCR admitted, however, that MCR intended to continue leasing MCR’s new property to the current leasee, and had no plans to ranch this new land themselves. MCR also admitted that the current leasee had not expressed any interest in leasing these four tracts of state trust land. McEwens alleged that MCR bid on this land solely to raise the lease price paid by McEwens. MCR’s bid forced McEwens to pay almost twice as much as they had been paying to return the lease.
¶77 MCR contends that the District Court abused its discretion by admitting this evidence because MCR’s bid on the state trust land was irrelevant to the claims at trial. MCR points out that evidence that MCR bid on the state trust land did not make it more or less likely that MCR had trespassed on McEwens’ property, or had caused a nuisance on McEwens’ property, or had breached a contract with McEwens. We agree with MCR that evidence of MCR’s bid is irrelevant to these claims. This evidence relates, however, to McEwens’ claim for punitive damages. MCR argues that evidence cannot be admitted solely to prove a punitive damages claim. MCR contends that evidence must be admissible to prove one of McEwens’ other claims in order for the court to have admitted the evidence for purposes of proving McEwens’ punitive damages claim. We disagree.
¶78 Evidence collateral to all other issues in the case nevertheless may be admissible to prove punitive damages. The district court in Cooper v. Rosston, 232 Mont. 186, 756 P.2d 1125 (1988), excluded evidence of how a driver had reacted immediately after a car accident. The driver claimed that someone else had been driving and he failed to mention that he had been drinking alcohol before the accident until it was too late for investigating authorities to conduct a blood alcohol test. Cooper, 232 Mont. at 190, 756 P.2d at 1127. This Court determined that the district court had abused its discretion by excluding this evidence. The evidence related to plaintiffs claim for punitive damages even though it may not have been relevant to any of the other claims in the case. Cooper, 232 Mont. at 190, 193, 756 P.2d at 1128, 1129.
¶79 In Runkle v. Burlington N., 188 Mont. 286, 613 P.2d 982 (1980), a freight train collided with a vehicle in Troy, Montana, and killed its driver. The decedent’s wife sought punitive damages on the basis that the railroad company had acted wantonly in placing profits ahead of safety considerations. The city council had considered lowering the speed limit on that stretch of railroad from 40 miles per hour to 25 miles per hour. The trial court excluded as irrelevant proposed testimony from a city council member that the railroad had pressured him to vote to maintain the 40 miles per hour speed limit. This Court reversed on the grounds that the excluded evidence potentially could have demonstrated the railroad’s wantonness in support of plaintiffs claim for punitive damages. Runkle, 188 Mont. at 301, 613 P.2d at 991.
¶80 We agree with McEwens that evidence of MCR’s decision to bid on the state trust land falls within the broad scope of relevancy as this evidence made it more probable that MCR had acted maliciously towards McEwens. M. R. Evid. 401. Evidence of MCR’s decision to bid on the state trust land, for which it had no discernible use, demonstrated that MCR had been acting deliberately in a way that had a high probability of injuring McEwens. Section 27-1-221, MCA. A court may admit evidence relevant to a punitive damages claim even if the evidence supports no other claim. Runkle, 188 Mont. at 301, 613 P.2d at 991; Cooper, 232 Mont. at 193, 756 P.2d at 1129. We cannot say that the District Court acted arbitrarily without conscientious judgment when it admitted this evidence. McCormack, ¶ 22.
¶81 As a final note, we recognized in Malcolm v. Evenflo Co., 2009 MT 285, 352 Mont. 325, 217 P.3d 514, that our system provides for the presentation of evidence regarding liability for compensatory damages and punitive damages to the jury in a single proceeding. Evenflo, ¶ 103; Finstad v. W.R. Grace & Co., 2002 MT 228, ¶ 20, 301 Mont. 240, 8 P.3d 778. We previously have considered whether evidence relevant only to the question of punitive damages should be admitted in a separate hearing to prevent a jury from incorrectly considering this evidence in relation to the issue of compensatory damages. Sunburst, ¶ 86; Evenflo, ¶ 103. MCR argued on appeal, however, only that the evidence of its attempt to jump McEwens’ state lease was not relevant to McEwens’ claim for punitive damages. MCR did not argue to the District Court, and did not argue on appeal, that the District Court should have bifurcated the compensatory damages and punitive damages proceedings. As a result, we do not need to resolve this issue.
CONCLUSION
¶82 The District Court properly allowed McEwens to pursue restoration costs as an appropriate measure of damages to their property. The court properly admitted evidence that MCR had attempted to jump McEwens’ lease on state trust land. This evidence related to McEwens’ claim for punitive damages. We remand to the District Court for resolution of MCR-T’s claim for condemnation of McEwens’ property for its compressor station.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT and RICE concur.
|
[
4,
15,
-37,
2,
16,
20,
-16,
-19,
-14,
35,
-14,
10,
50,
-2,
21,
-56,
26,
-19,
29,
-16,
7,
-43,
41,
-6,
-47,
-17,
-22,
-9,
-2,
-1,
-33,
-12,
-10,
-24,
-19,
-7,
-59,
53,
-19,
-45,
23,
22,
11,
-3,
-6,
42,
13,
23,
9,
13,
28,
-23,
2,
-22,
-4,
-11,
-37,
51,
-59,
45,
7,
25,
7,
0,
77,
23,
-4,
-41,
-12,
3,
16,
9,
0,
-20,
27,
-14,
-4,
-5,
-55,
-13,
-27,
21,
47,
5,
7,
-2,
-47,
-43,
4,
30,
-50,
-3,
0,
25,
6,
40,
10,
-32,
-41,
30,
-18,
1,
1,
7,
-7,
-32,
-12,
-27,
44,
25,
-9,
-12,
-21,
-32,
-34,
-2,
48,
24,
11,
40,
-15,
-2,
-16,
20,
-46,
12,
39,
29,
-2,
13,
4,
0,
5,
-26,
47,
-21,
24,
81,
-49,
94,
15,
1,
27,
-1,
-37,
32,
16,
-30,
-31,
-20,
21,
4,
-48,
-17,
17,
-5,
30,
3,
-17,
-11,
39,
8,
31,
-20,
-18,
0,
-13,
0,
-23,
-37,
15,
-77,
22,
-30,
12,
0,
-60,
0,
-43,
-48,
0,
-14,
31,
-40,
-59,
41,
16,
47,
-44,
2,
32,
-26,
-44,
-67,
-63,
7,
22,
25,
0,
68,
-17,
-12,
-26,
-21,
3,
12,
24,
-8,
31,
-38,
21,
66,
-61,
-17,
-17,
0,
44,
4,
-3,
-47,
-19,
-35,
-7,
23,
23,
-26,
-7,
45,
24,
-35,
-62,
13,
58,
34,
-25,
14,
-24,
-11,
14,
-15,
10,
9,
-29,
-4,
11,
12,
-27,
-47,
12,
15,
-28,
-64,
-24,
41,
39,
15,
-11,
13,
-32,
-26,
80,
10,
-34,
-5,
9,
37,
-51,
-19,
-2,
43,
4,
6,
3,
18,
-16,
-25,
8,
0,
5,
27,
18,
-2,
2,
41,
1,
9,
39,
31,
-40,
-18,
-30,
-31,
4,
-12,
-7,
-31,
-18,
-28,
-5,
-5,
-12,
-16,
12,
-26,
47,
20,
-5,
67,
-3,
39,
34,
14,
-22,
21,
14,
-41,
0,
20,
21,
-46,
7,
-17,
27,
-47,
26,
16,
37,
-15,
-17,
87,
47,
15,
11,
21,
-3,
-1,
40,
35,
5,
3,
-7,
22,
20,
4,
-11,
14,
-1,
9,
-10,
24,
0,
-2,
11,
32,
-7,
-47,
43,
40,
-32,
48,
15,
3,
-29,
-35,
1,
-20,
2,
-48,
-56,
-27,
-8,
2,
-20,
65,
40,
-9,
17,
2,
-48,
-7,
19,
-45,
16,
-45,
64,
-14,
9,
-33,
-37,
3,
-18,
-16,
-5,
66,
-16,
-69,
17,
-14,
3,
23,
13,
3,
-18,
2,
-23,
-9,
11,
10,
-31,
-19,
-24,
-44,
8,
-17,
-30,
28,
-11,
26,
-10,
19,
7,
-12,
-6,
-48,
19,
-31,
22,
2,
-27,
32,
-30,
21,
-3,
19,
-40,
42,
-5,
0,
-63,
57,
-50,
29,
-40,
-20,
-10,
-10,
15,
-29,
75,
6,
-19,
2,
-18,
-23,
10,
55,
28,
-63,
55,
19,
11,
16,
12,
4,
-25,
-9,
71,
-46,
4,
20,
11,
82,
20,
61,
18,
9,
-22,
-3,
-30,
11,
14,
-26,
-43,
-31,
-7,
52,
-36,
66,
37,
28,
-12,
79,
4,
-55,
-21,
3,
24,
5,
51,
-16,
-26,
-34,
37,
18,
-19,
-13,
-5,
-22,
-21,
10,
31,
22,
45,
-61,
-19,
-2,
-28,
-9,
14,
24,
13,
-35,
12,
28,
-36,
19,
-31,
1,
66,
1,
-27,
-19,
-2,
30,
-49,
-39,
15,
19,
26,
-33,
17,
14,
-8,
-8,
-23,
34,
-24,
-16,
-26,
-1,
41,
-5,
37,
54,
0,
14,
-50,
-28,
0,
15,
27,
2,
20,
0,
10,
-11,
-23,
-22,
43,
-20,
-37,
54,
22,
-61,
28,
-45,
-8,
-25,
-10,
90,
-10,
-4,
33,
-36,
-34,
4,
10,
-3,
-32,
7,
-38,
-30,
-28,
24,
12,
17,
11,
-20,
-53,
-8,
10,
-42,
-28,
-46,
-3,
-9,
33,
-19,
-25,
43,
-31,
55,
5,
40,
17,
-1,
6,
-33,
29,
-2,
32,
-38,
-33,
13,
-23,
15,
-18,
-25,
-57,
42,
1,
0,
-48,
-4,
8,
-35,
-26,
25,
-62,
-26,
-21,
5,
-24,
-41,
-6,
-36,
6,
-10,
-38,
-31,
36,
24,
47,
8,
16,
33,
43,
-10,
63,
-84,
91,
-11,
8,
15,
-38,
-71,
21,
-2,
33,
21,
0,
-2,
-12,
77,
9,
-31,
31,
-25,
7,
51,
18,
-15,
10,
12,
50,
19,
34,
29,
-5,
-22,
-17,
30,
10,
11,
-19,
-13,
-34,
39,
-43,
-5,
18,
22,
21,
77,
0,
56,
-26,
-54,
39,
42,
16,
-44,
13,
15,
-8,
4,
8,
-15,
-63,
-51,
43,
-46,
-63,
-50,
-4,
-8,
-44,
37,
-21,
-3,
-71,
51,
3,
5,
-12,
-7,
1,
20,
-31,
2,
2,
18,
26,
-3,
-7,
5,
46,
0,
-31,
32,
-12,
-19,
5,
6,
0,
-68,
3,
12,
6,
-15,
85,
-20,
-12,
32,
14,
-27,
45,
-69,
15,
-29,
28,
14,
32,
28,
41,
40,
23,
41,
34,
11,
-43,
-3,
-41,
9,
-44,
-29,
-14,
9,
4,
34,
12,
20,
12,
0,
-11,
-12,
-50,
19,
0,
-34,
-34,
16,
-7,
-12,
19,
-9,
-14,
-3,
27,
8,
0,
-30,
45,
-10,
35,
15,
-65,
41,
-48,
-37,
40,
-1,
-90,
13,
8,
-6,
43,
52,
-8,
17,
45,
-57,
-55,
33,
-33,
-17,
29,
57,
-10,
-47,
-16,
-72,
-26,
21,
-35,
5,
-68,
23,
1,
62,
10,
32,
18,
45,
32,
-2,
12,
-25,
49,
16,
52,
46,
-47,
37,
11,
10,
-33,
2,
-30,
3,
-2,
14,
-13,
6,
-5,
5,
17,
25,
45,
27,
-21,
-19,
-23,
-10,
9,
-12,
3,
42,
2,
17,
-1,
-53,
2,
13,
-20,
-18,
22,
-27,
11,
-35,
-6,
-28,
-34,
50,
28,
-11,
29,
-7,
-5,
-4,
-6,
39,
-47,
-18,
-19,
-2,
-9,
-18,
-24,
9,
14,
14,
-26,
20,
15,
38,
-43,
4,
-4,
22,
9,
-4,
85,
-24,
4,
11,
-9,
6,
-7,
-24,
-54,
-47,
23,
30,
-10,
-20,
6,
-20,
-28,
6,
15,
14,
-28,
26,
20,
15,
-26,
18,
-31,
-72,
-13,
-2,
3,
-6,
4,
12,
23,
48,
-47,
-16,
11,
24,
32,
-49,
34,
3,
15,
33,
0,
4,
40,
-13,
-41,
28,
16,
-43,
-33,
-66,
-54,
-4,
63,
-25,
48,
-7,
0,
0,
-18,
10,
18,
-61,
-5,
-39,
-116,
-52,
9,
50,
17,
6,
65,
12,
-38,
3,
11,
-25,
57,
46,
16,
8,
-47,
26,
-16,
-11,
-20,
-8
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶ 1 Total Industrial Plant Services, Inc. (“TIPS”), appeals the District Court’s entry of judgment in favor of defendants Turner Industries Group, LLC (“Turner”), and Fidelity and Deposit Company of Maryland (“Fidelity”), dismissing TIPS’s claims for additional compensation under either quantum meruit or breach of contract, awarding fees and costs to Turner, and finding TIPS’s construction lien time barred by operation of § 71-3-535, MCA. Turner cross-appeals, arguing the District Court erred both by granting TIPS partial summary judgment on the return of retainage and by dismissing Turner’s bill of costs as being untimely filed.
ISSUES
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err by denying TIPS’s claim for additional compensation under a theory of either quantum meruit or breach of contract?
¶4 2. Did the District Court err by failing to find that TIPS was the prevailing party and awarding costs and fees to Turner?
¶5 3. Did the District Court err by finding TIPS’s construction lien was barred by the 90-day statute of limitations found in § 71-3-535, MCA?
¶6 4. Did the District Court err by granting partial summary judgment to TIPS and ordering Turner to return the retainage?
¶7 5. Did the District Court err by dismissing Turner’s bill of costs for being untimely filed pursuant to § 25-10-501, MCA?
FACTUAL AND PROCEDURAL BACKGROUND
¶8 This appeal stems from a construction contract dispute between TIPS, an Oklahoma corporation, and Turner, a limited liability company formed in Louisiana. Fidelity and Deposit Company of Maryland (“Fidelity”) is the surety for Turner’s substitution bond filed in November of 2008 in lieu of TIPS’s construction lien.
¶9 Turner entered into a written subcontract with TIPS to install insulation at a “coker” unit at a refinery in Laurel, Montana, on April 14, 2007. Turner also entered into two other subcontracts with TIPS for fireproofing and painting the coker, neither of which is at issue. Cenex Harvest States (“CHS”) owns the refinery and hired Turner to act as the general contractor on the coker project. The initial subcontract between Turner and TIPS was to be paid as a fixed price totaling $2,336,967.00, with payment rendered by percentage of completion. The subcontract further provided that TIPS was responsible for the costs of all labor, services, and materials.
¶10 The original subcontract contemplated a start date in May of2007 and a completion date of December 31, 2007. While TIPS began work fireproofing structural steel in May, Turner did not release TIPS to start insulating until October of 2007. It soon became apparent that TIPS would not meet the completion date. Both sides acknowledge that this was due to delays in the work of other subcontractors, a harsh winter, a change in insulation material, and an inability to obtain pipe and cable following Hurricane Katrina. Specifically, TIPS testified at trial that the cold weather reduced productivity because workers would periodically take breaks to warm in tents, and Turner also requested that TIPS not insulate welds on the piping to accommodate hydrostatic pressure testing that had run behind schedule. TIPS could thereafter only insulate straight-run piping in the first pass and had to leave the welded sections of pipe without insulation, returning to finish the job once the welds were tested. In response to the increasing delays, Turner repeatedly requested that TIPS increase the number of workers on the job.
¶11 The subcontract did address how the parties were to deal with delays, changes to the scope of work, jobsite conditions, and the costs of “manning up.” The recitals provided that “SUBCONTRACTOR shall furnish and pay for all labor, services and/or materials and perform all the work necessary or incidentally required for the completion of’ the project. Section 7.2 directed that TIPS was to supply “a sufficient number of properly qualified workers” to perform the work “efficiently and promptly.” Section 11.2 stated that TIPS was to “take all measures necessary to eliminate... delays,” including hiring extra personnel, “at no cost” to Turner or CHS. Section 10 allowed Turner to make alterations to the scope of work and required TIPS to submit written change orders to cover any additional costs or time extensions that resulted. Moreover, Section 3 required TIPS to assume responsibility for unanticipated costs stemming from the location of the project and general and local conditions.
¶12 Despite these provisions, TIPS claimed that Turner’s requested changes resulted in inefficiencies and extra costs not covered by the original fixed price subcontract and not paid for after the switch to time and materials. As noted, Section 10 specifically addressed how the parties were to handle Turner’s requested changes to the project, and required TIPS to submit written change orders describing the nature and cost of the extra work. TIPS did submit a number of change orders following some of Turner’s requests, and uncontested testimony at trial established that Turner paid every change order that TIPS submitted. Indeed, the parties had agreed that TIPS would have to submit a change order to cover the additional costs stemming from leaving welds without insulation. Whether TIPS submitted written change orders to cover the requested changes and increased costs was contested, however, and TIPS has instead argued that Turner made oral promises of compensation that obviated the need for written change orders.
¶13 Turner and TIPS also agreed to several increases in the compensation paid to TIPS, eventually revising the subcontract five times to increase TIPS’s pay. On January 4, 2008, Turner and TIPS agreed to a revised fixed price payment of $4,224,278.96, an increase of $1,887,311.96 over the original subcontract. This increase consisted of $38,300.00 for extra insulation, $1,460,756.00 for work approved over the original bid amount, $36,078.76 in additional equipment, and $352,177.20 for mineral wool.
¶14 TIPS and Turner subsequently began discussing changing from fixed price payment to “time and materials” invoicing in January of 2008. TIPS sought the change to realize direct compensation for the additional manpower and work it claims Turner was requesting. CHS and Turner agreed to the change on February 6, 2008, retroactive to February 4, 2008, believing that it would incentivize TIPS to increase manpower and allow Turner to exact more control over the project. Turner also believed the change would eliminate issues concerning unknown extra costs, remove the need for future payment negotiations, and potentially preclude a claim by TIPS over compensation.
¶15 TIPS began to submit invoices based on time and materials costs on February 4, 2008. At that time, Turner calculated that TIPS had completed 47% of the insulation project under the fixed price subcontract. TIPS contested this calculation and payment, and also argued that it has not been compensated for losses it suffered from inefficiencies that resulted from Turner’s requests.
¶16 Thereafter, on March 10, 2008, a second revision increased payment to TIPS to $7,000,000.00. This increase included payment of $94,685.00 for hydraulic power manifolds, $148,500.00 in filtration system materials, $347,051.90 in extra work, and $2,185,484.14 in estimated future time and materials work. This revision also incorporated a $4.00 per hour increase in the labor rate agreed to on February 13, 2008, bringing the hourly rate to $43.45. This was apparently done at TIPS’s request to enable them to attract more qualified insulators.
¶ 17 A third revision increased TIPS’s payment to $ 10,000,000 on April 17, 2008. This increase was based on an invoice TIPS submitted for additional work. A fourth revision on June 6, 2008, increased TIPS’s pay to $13,000,000.00, and was similarly based on a TIPS invoice for work under time and materials. A final, fifth, revision on July 25, 2008, increased TIPS’s payment to $13,250,000.00. It is uncontested that TIPS was paid the final revised amount, and all time and materials claims from February 4, 2008, onward have been paid.
¶18 TIPS began to claim additional compensation was owed in the spring of 2008 despite these modifications. In particular, Turner refused to pay TIPS’s invoice 1895-1, which claimed a payment of $700,095.00 for “inefficiencies,” and Turner thereafter left the work site on June 25, 2008. TIPS remained at CHS through July, and while the end date of TIPS’s work under contract was in dispute, the parties do not dispute that TIPS completed its work under the subcontract. TIPS thereafter filed a construction lien against the CHS refinery on September 24,2008, alleging Turner owed TIPS $1,283,704.08. Turner then filed a substitution bond for 1.5 times the lien.
¶19 TIPS filed its complaint on December 3,2009, alleging theories of breach of contract, quantum meruit and unjust enrichment, breach of the covenant of good faith and fair dealing, and seeking foreclosure of the lien. The complaint sought $1,283,704.08.
¶20 Prior to trial, the parties filed cross-motions for summary judgment. The court granted TIPS’s motion for partial summary judgment, ordering Turner to return the $374,225.82 in retainage it had withheld. The court also denied Turner’s motion alleging that TIPS’s lien was void and requesting the court dismiss the complaint, arguing venue in Montana was not proper and the court lacked subject matter jurisdiction.
¶21 A bench trial was held on July 11,12, and 29, 2011. At trial, TIPS sought additional compensation for what it claimed was uncompensated additional work Turner requested under the fixed price contract, payment owed under the fixed price agreement for percentage completed, and unpaid time and materials work between January 1, 2008, and February 4, 2008. Turner presented testimony that TIPS was paid $13,250,000.00, argued that TIPS bore responsibility for extra costs under the fixed price contract, and presented evidence that TIPS had not submitted written change orders as required for the additional compensation it sought. The District Court entered its Findings of Fact and Conclusions of Law on November 22, 2011, and found for Turner on each allegation in TIPS’s complaint.
STANDARD OF REVIEW
¶22 “We review the findings of a trial court sitting without a jury to determine if the findings are clearly erroneous. Rule 52(a), M. R. Civ. P,” and we review the court’s conclusions of law for correctness. Lewistown Miller Constr. Co. v. Martin, 2011 MT 325, ¶¶ 15, 17, 363 Mont. 208, 271 P.3d 48. A district court’s construction and interpretation of a contract is a question of law that is also reviewed for correctness. Richards v. JTL Group, Inc., 2009 MT 173, ¶ 14, 350 Mont. 516, 212 P.3d 264. An order concerning attorney fees is reviewed for an abuse of discretion. B Bar J Ranch, LLC v. Carlisle Wide Plank Floors, Inc., 2012 MT 246, ¶ 10, 366 Mont. 506, 288 P.3d 288. This Court reviews a decision on summary judgment de novo. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257.
DISCUSSION
¶23 1. Did the District Court err by denying TIPS’s claim for additional compensation under a theory of either quantum meruit or breach of contract?
¶24 TIPS alleges on appeal that the District Court erred by not finding that it was owed additional compensation under either a theory of breach of contract or quantum meruit and unjust enrichment. TIPS’s claim specifically involves three sources of allegedly owed compensation. First, TIPS disputes that it was adequately paid for the 47% of the project Turner calculated it had completed at the time of the switch to time and materials invoicing on February 4, 2008. Second, TIPS asserts that cold weather and changes in the scope of work increased costs, which TIPS contends Turner orally promised to pay for. Last, TIPS argues that it is owed for additional man hours provided in January of 2008. As a result, TIPS alleges that it is still owed $2,102,878.25 above the $ 13,250,00.00 it acknowledges receiving. In response, Turner argues that TIPS did not submit the required written change orders for the payments it is requesting, and that pre February 4, 2008 labor costs were TIPS’s responsibility.
¶25 At the outset, we find that the District Court properly concluded that because all of the work completed by TIPS was done pursuant to an express contract, there was no basis for TIPS’s claims under the theory of quantum meruit or unjust enrichment. Theories of quasi-contractual obligations are premised on the absence of an express contract, and as such, do not apply here. See Estate of Pruyn v. Axmen Propane, Inc., 2009 MT 448, ¶ 63, 354 Mont. 208, 223 P.3d 845. We accordingly affirm the court’s dismissal of TIPS’s quantum meruit and unjust enrichment claims.
¶26 The District Court also determined that TIPS’s contract-based claims were “directly refuted by the plain language of the Subcontract.” The court based this conclusion on findings that the subcontract required written modifications, placed responsibility for site conditions on TIPS, allowed Turner to change the scope of work, and provided that written change orders were the exclusive mechanism by which TIPS could seek extra compensation in response to these changes. As noted above, we review the court’s findings of fact for clear error, Lewistown Miller Constr. Co. ¶¶ 15, 17, and its legal conclusions for correctness. Richards, ¶ 14.
¶27 a. TIPS’s Claimed Percent of Completion Payment
¶28 TIPS claims that Turner did not fully compensate it for the 47% of piping TIPS insulated prior to February 4, 2008, asserting that Turner’s payments for “materials” could not be applied to sums owing for labor. Essentially, TIPS contests the characterization of fixed price payments as applying generally towards one “bucket” of owed money, and claims that invoices paid for rentals, vehicles, or storage cannot count towards money owed for labor. Turner counters that payments made under fixed price invoicing are essentially fungible and are applied towards the total contract price.
¶29 The District Court rejected TIPS’s argument, finding that the evidence established that funds paid under the fixed price subcontract, whether labeled as for materials or labor, were interchangeable and applied to the total owed under the contract. On appeal, TIPS has not presented any authority, legal or otherwise, in support of their argument. While we recognize that the appellant, rather than this Court, is obligated to conduct legal research or develop legal analysis supporting their position, M. R. App. P. 12(l)(f), it is clear that the original fixed price subcontract contemplated a total payment of $2,336,967.00 to TIPS, all costs included. Indeed, under fixed price contracts generally, “[t]he [subcontractor receives one fixed price for performing the work no matter how costly it is to perform,” and periodic payments “are typically based upon the percentage of the project completed.” Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law vol. 2, § 6:71, 621-22, (West 2002) (emphasis added). Because fixed price contracts consist of essentially indistinguishable periodic payments applied towards a set price, it is clear that TIPS places undue significance on the labels affixed to various payments. In light of the nature of fixed price contracts generally and, more specifically, the subcontract at issue, the court correctly concluded that payments made under the fixed price subcontract were functionally indistinguishable, and we affirm the District Court’s dismissal of TIPS’s claim for owed completion pay.
¶30 b. TIPS’s Claimed Inefficiency and Change in Scope Costs
¶31 TIPS also claims Turner owes for pre-2008 changes in scope and costs resulting from various inefficiencies. However, the subcontract required TIPS to submit written change orders for such costs under the fixed price scheme, and it is undisputed that TIPS did not submit written change orders to Turner referencing these costs. TIPS instead claims that Turner made oral representations to TIPS promising payment and disputes that the fixed price scheme made TIPS responsible for the costs of additional labor.
¶32 i. Fixed Price vs. Time and Materials Contracts
¶33 Initially, TIPS’s argument mischaracterizes the nature of fixed price contracts, and the District Court concluded that costs for additional personnel and inefficiencies were the express responsibility of TIPS under the fixed price subcontract. As noted, the nature of fixed price contracts placed the burden of additional or unexpected costs on TIPS. See Sperry Rand Corp. v. United States, 201 Ct. Cl. 169, 181, 475 F.2d 1168 (1973) (“Absent unusual circumstances, a ‘fixed-price [subcontractor] ... shoulders the responsibility for unexpected losses, as well as for his failure to appreciate the problems of the undertaking ....’ ”); Bruner & O’Connor, Bruner & O’Connor on Construction Law, § 6:71, 621-22 (noting that under a fixed price contract, “[i]f the work is more expensive than anticipated, that too is the [subcontractor’s] sole risk.”). The subcontract specifically provided that TIPS would bear the cost of all labor and materials resulting from local conditions or changes in scope, unless it submitted a written change order. By contrast, under time and materials invoicing, “the [subcontractor] receives reimbursement for the costs it incurs, plus a fee.” Bruner & O’Connor, Bruner & O’Connor on Construction Law, § 6:81, 639-40 (emphasis added). Indeed, the parties’ contract revision switching to time and materials reflected this difference, as it paid TIPS’s workers on a cost-plus hourly basis.
¶34 Recognizing the difference between fixed price and time and materials contracts, it is clear the fixed price subcontract did not intend to compensate TIPS for the costs of additional labor, inefficiencies, or local conditions without a written change order. Under the fixed price scheme, TIPS only realized compensation for additional labor if the extra workers increased TIPS’s percent of completion. Moreover, Turner was free to increase the scope of work under the terms of the subcontract, and TIPS was required to submit written change orders for “all costs and time extensions” associated with these requests. As it was undisputed that TIPS did not submit written change orders for the costs at issue, the court correctly concluded that alleged inefficiencies and additional labor were the sole responsibility of TIPS under fixed price invoicing.
¶35 ii. The Alleged Oral Modifications
¶36 Despite the foregoing, TIPS contends that it is owed payment for inefficiencies and changes in scope because Turner made oral promises of payment that should be considered executed oral modifications. In support of this argument, TIPS asserts Turner should not be allowed to avoid executing these oral agreements by withholding payment, citing our decisions in Dalakow v. Geery, 132 Mont. 457, 318 P.2d 253 (1957), and Lewistown Miller.
¶37 TIPS’s reliance on Dalakow and Lewistown Miller is misplaced. In Dalakow and Lewistown Miller, we recognized that while only executed oral agreements may modify a written contract, § 28-2-1602, MCA, one side’s refusal to pay following an oral request for services did not prevent a valid oral modification “merely because of that fact.” Dalakow, 132 Mont. at 464, 318 P.2d at 258; see also Lewistown Miller Constr. Co., ¶ 23. TIPS argues Turner orally promised payment for additional labor and, following Dalakow and Lewistown Miller, it should not be allowed to avoid allegedly valid oral modifications by withholding payment.
¶38 However, in Dalakow, we found that “the record [was] replete” with evidence that the defendant knew an oral modification had been effected, Dalakow, 132 Mont. at 464, 318 P.2d at 258, and evidence of oral requests was similarly “unequivocal” in Lewistown Miller, ¶ 19. TIPS failed to provide similar evidence that Turner understood it was responsible for compensating TIPS for additional labor under fixed price invoicing without written change orders. Indeed, TIPS was responsible for the cost of labor under the subcontract, and TIPS failed to establish evidence of oral agreements to the contrary.
¶39 TIPS’s claims are also contradicted by the testimony of Ted Estraca (“Estraca”), President of TIPS. Estraca’s testimony indicates that he did not understand Turner’s communications to say that Turner would pay the additional workers brought on in January outside of the payments provided according to the subcontract’s fixed price scheme. Estraca also testified that when Turner asked TIPS to increase manpower in January he asked to convert to time and materials, but Turner said no, revealing that both parties understood that the additional labor was TIPS’s responsibility. This testimony cannot be reconciled with TIPS’s claim to the contrary, and Estraca admitted that TIPS did not submit written change orders for the costs of “manning up.” Thus, the record does not support TIPS’s claims for additional pay prior to February 4, 2008, and we find that the District Court correctly dismissed TIPS’s claims.
¶40 c. TIPS’s Claimed Additional Pay for January 2008
¶41 TIPS finally claims Turner owes pay for additional labor provided between January 1 and February 4, 2008. The District Court found that TIPS failed to prove non-payment for any additional work performed by TIPS that complied with “the plain language” of the subcontract requiring written change orders. Again, the subcontract expressly required TIPS to submit written change orders for costs, like those for additional labor, incurred in response to Turner’s changes in scope. Also again, TIPS admits it did not submit any change orders referencing these costs. It is further undisputed that time and materials invoicing did not begin until February 4, 2008. Thus, in January of2008, TIPS was working under a fixed price contract. As we noted, fixed price contracts place all responsibility for additional costs on the subcontractor, namely TIPS. Because TIPS’s claimed costs for additional labor occurred under the fixed price contract without the necessary written change orders, and because TIPS failed to establish oral agreements providing payment for these costs, we hold that the District Court correctly concluded these costs “were the responsibility of TIPS.”
¶42 2. Did the District Court err by failing to find that TIPS was the prevailing party and awarding costs and fees to Turner ?
¶43 TIPS claims the District Court abused its discretion by concluding Turner was the prevailing party in the litigation. We have previously held that the “ ‘prevailing party is the one who has an affirmative judgment rendered in his favor at the conclusion of the entire case.’ ” Avanta Fed. Credit Union v. Shupak, 2009 MT 458, ¶ 49, 354 Mont. 372, 223 P.3d 863 (emphasis added). We have also recognized that a money award is not dispositive in this determination. E.C.A. Envtl. Management Servs. v. Toenyes, 208 Mont. 336, 345, 679 P.2d 213 (1984). In essence, TIPS claims that it is the prevailing party because the court granted its motion for partial summary judgment and found that TIPS was entitled to the retainage once Turner had posted a substitution bond. However, the court’s grant of TIPS’s Motion for Partial Summary Judgment was not an affirmative judgment rendered at the conclusion of the entire case, but was rather an interlocutory order determining a subordinate question that did not finally decide the case TIPS alleged in its complaint. See M. R. App. P. 4(1)(b); Farmers Union Mut. Ins. Co. v. Bodell, 2008 MT 363, ¶ 16, 346 Mont. 414, 197 P.3d 913. As such, the court’s order granting TIPS’s motion for the retainage did not make TIPS the prevailing party in the litigation, and TIPS ultimately lost on each count of its complaint when a final decision was rendered. We therefore affirm the District Court’s decision that TIPS was not the prevailing party and was not entitled to costs and fees.
¶44 3. Did the District Court err hy finding TIPS’s construction lien was barred by the 90 day filing deadline found in § 71-3-535, MCA?
¶45 The District Court found that TIPS’s construction lien was filed at least one day after the 90 day statute of limitations found in § 71-3-535, MCA. The statute directs that a construction lien must be filed “not later than 90 days after” the person’s “final furnishing of services or materials” or the owner files a notice of completion. Section 71-3-535(1), MCA. Here, the District Court found that Turner left the job site on June 25, 2008, and that while TIPS continued to work at the refinery, it did so under a series of purchase order contracts with CHS and not under the Turner subcontract. Because TIPS filed the construction lien on September 24, 2008, 91 days after the Court determined TIPS had stopped working for Turner, the Court found that the lien was barred by operation of law. We agree.
¶46 TIPS claims the court erred by finding that TIPS was off the site no later than June 25, 2008. In support, TIPS claims that the court ignored testimony that TIPS was on the job site after June 25th, and argues that because it “was performing essentially the same insulation duties before and after Turner left the site,” its later work for CHS should provide the relevant date for § 71-3-535(1), MCA. TIPS finally claims the court erred by relying on hearsay to find a separate contract existed.
¶47 Conversely, Turner argues TIPS’s work under the subcontract ended on June 25, 2008. In support, Turner proffered a notice of final completion sent to CHS dated June 24, 2008. Turner also argues that TIPS entered into a separate contract with CHS after June 25th, and asserts this work therefore did not toll the 90 day time limit with respect to the Turner subcontract.
¶48 The court based its finding that TIPS finished its obligations under the Turner subcontract prior to June 25,2008, on Turner’s June 24,2008, Notice of Completion, evidence that the last payment Turner made to TIPS was for work on June 25th, testimony by TIPS Project Superintendant Rumaldo Herrera that TIPS left the site on June 25th and began insulating for CHS on June 30th, testimony by Richard Day that TIPS was off the site on June 25th, and an affidavit by Pat Kimmet, CHS plant manager, that TIPS’s work after June 25th was under a separate CHS contract.
¶49 As noted above, we review the court’s findings of fact for clear error. A finding of a trial court sitting without a jury is clearly erroneous if it is not supported by substantial credible evidence, if the trial court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that the trial court made a mistake. Lewistown Miller Constr. Co., ¶ 15. From a review of the record, it is clear that the court’s findings concerning the timeliness of the lien were supported by substantial credible evidence. Several parties testified that TIPS left the job site, and completed the subcontract with Turner, by June 25, 2008. TIPS’s own Project Superintendant testified that the company quit insulating under Turner on June 25,2008, and TIPS’s Estraca testified that after Turner left, TIPS submitted an estimate to CHS and CHS issued a separate purchase order for TIPS’s work. Significantly, Turner’s admitted final notice of completion clearly shows a date of June 24, 2008. It was not clear error for the court to find TIPS finished working under Turner on June 25, 2008.
¶50 We are also not persuaded by TIPS’s argument that the District Court erred by finding that its work at the refinery after June 25, 2008, was under a separate contract and could not toll the 90 day time limit. It is well-established that if work is performed under separate contracts, “ ‘the lien should be filed within the time prescribed by the statute after the delivery under each of such contracts.’ ” See Frank J. Trunk & Son v. De Haan, 143 Mont. 442, 445, 391 P.2d 353 (1964), quoting Helena Steam-Heating & Supply Co. v. Wells, 16 Mont. 65, 69, 40 P. 78 (1895). It is a question of fact whether work was finished under one or more contracts, Frank J. Trunk & Son, 143 Mont. at 445-46, 391 P.2d at 355, and the District Court did not commit clear error by finding TIPS’s work after June 25th was under a separate contract. Both sides agree that Turner left the site on June 25th, and it is undisputed that CHS paid TIPS under separate purchase orders for its later work. TIPS Superintendant Herrera stated that TIPS began work on June 30th under CHS, and testimony by Mr. Day, Superintendant for Turner, established that the last day of the job was “Wednesday the 25th” of June and that no TIPS personnel were left working on site. Further, TIPS Invoice # 1971, admitted at trial, clearly shows that TIPS submitted 330 hours of work for Turner on June 25, 2008, and none thereafter. This was confirmed by Turner’s project engineer, Mr. Stampley, who testified that Invoice 1971 was the last invoice Turner processed for TIPS labor at the refinery, and by Plaintiffs Exhibit 73, which shows TIPS billed CHS, not Turner, for its work starting June 30th. Based on this review of the record, we conclude that it was not clearly erroneous for the court to find that TIPS operated under a separate contract with CHS after June 25, 2008.
¶51 TIPS is also incorrect to argue that the District Court solely relied on inadmissible hearsay to find that TIPS’s work after June 25th came under a separate contract. A review of the court’s findings shows the court referenced testimony by Mr. Herrera, testimony by Mr. Day, invoices, and admitted correspondence between CHS and Turner, in addition to the Pat Kimmet affidavit. Even if, as TIPS claims, the Kimmet affidavit was inadmissible hearsay, its reference by the trial court was harmless error because the finding was supported by other admissible evidence that proved the same facts. M. R. Civ. P. 61; State v. Sanchez, 2008 MT 27, ¶ 22, 341 Mont. 240, 177 P.3d 444.
¶52 In light of the foregoing, we find that the court correctly concluded that because TIPS filed its construction lien on September 24, 2008, 91 days after it furnished services under the Turner subcontract, the lien was barred by operation of law. See Section 71-3-535(1), MCA; Johnston v. Palmer, 2007 MT 99, ¶ 33, 337 Mont. 101, 158 P.3d 998 (requiring that the procedural requirements for construction liens be strictly followed).
¶53 4. Did the District Court err by granting partial summary judgment to TIPS and ordering Turner to return the retainage?
¶54 Turner cross-appeals the District Court’s grant of TIPS’s motion for partial 'summary judgment seeking the return of contractual retainage. Turner asserts that the District Court erred because the subcontract authorized retaining money in anticipation and defense of “any lien or claim.” In granting TIPS’s motion for partial summary judgment on the retainage, the District Court found that because Turner had filed a substitution bond in lieu of TIPS’s lien, the lien was discharged by operation of § 71-3-552, MCA. Section 71-3-552, MCA, provides that “[u]pon the filing of a bond as provided in 71-3-551, the lien against the real property shall forthwith be discharged and released in full and the bond shall be substituted for such lien.” The District Court thus concluded that by filing a substitution bond, Turner obviated the need for TIPS to submit a final release of lien because § 71-3-552, MCA, effected a release by operation of law.
¶55 Here, the subcontract allowed Turner to withhold 10 percent of payments to TIPS as retainage until TIPS provided “a final release of lien.” Turner had retained $364,757.32 when TIPS filed its construction lien on September 24, 2008. Turner subsequently filed a substitution bond in an amount 1.5 times the lien. Section 71-3-551, MCA, provides that a “contracting owner of any interest in the property” may file a bond in an amount 1.5 times the lien, and § 71-3-552, MCA, declares that this bond discharges and releases the lien in full. However, Turner is not a “contracting owner” pursuant to § 71-3-522(4)(a), MCA, and therefore does not fall within the operation of § 71-3-551, MCA. While this is so, it is generally recognized that the purpose of allowing a construction lien to attach to a release bond is to “allow the property to be entirely free of liens” and allow “a general contractor, acting on the owner’s behalf, to substitute a bond for the property.” 53 Am. Jur. 2d Mechanics’ Liens § 307 (2012); see also AAA Constr. of Missoula, LLC v. Choice Land Corp., 2011 MT 262, ¶ 33, 362 Mont. 264, 264 P.3d 709 (“[A] bond ‘does not change the relation or rights of the parties otherwise than in substituting its obligations for the [property] subject to the lien ....’ ”); Hutnick v. United States Fidelity & Guaranty Co., 47 Cal. 3d 456, 462, 763 P.2d 1326, 1330 (1988). This intent was demonstrated by the parties’ stipulation dismissing CHS from the case, which can be seen as the parties acquiescing to the release of the lien in light of Turner’s bond. Turner therefore may not now oppose the return of the retainage by asserting TIPS has not filed a final release of lien. The subcontract authorized Turner to hold the retainage until a final release of lien, but a release was made superfluous by the parties’ actions. We accordingly affirm the District Court’s grant of TIPS’s motion for partial summary judgment on the retainage.
¶56 TIPS in turn claims it is owed prejudgment interest on the retainage, arguing that the court’s decision to the contrary was clear error. TIPS alleges that interest is appropriate because the retainage was a liquidated sum payable under a construction contract, citing James Talcott Constr., Inc. v. P&D Land Enterprises, 2006 MT 188, 333 Mont. 107, 141 P.3d 1200, while also claiming that the subcontract’s silence on retainage interest is immaterial. The District Court rejected TIPS’s claim, finding that as “[t]he Subcontract does not provide for payment of interest on retainage,” TIPS is not owed interest on the $374,225.82 that Turner withheld. Turner argues that the retainage is a cost of business and that Subsections 16.2 and 16.6 authorized withholding money pending litigation, but did not permit any payment of interest.
¶57 A district court’s decision concerning prejudgment interest is a question of law, and as such, we review it for correctness. Am. Music Co. v. Higbee, 2004 MT 349, ¶ 13, 324 Mont. 348, 103 P.3d 518. Here, the court denied TIPS’s claim for interest because of the lack of contractual language authorizing it. We conclude that this denial was incorrect.
¶58 Here, Turner filed the substitution bond in November of 2008, and, as noted above, this bond discharged TIPS’s lien by operation of law. Because a final release of lien was rendered unnecessary by the substitution bond, Turner was required to remit the retainage once the bond was filed. However, Turner failed to do so until so ordered by the District Court on October 12, 2010.
¶59 A party is entitled to prejudgment interest if they establish “(1) the existence of an underlying monetary obligation; (2) the amount of recovery is certain or capable of being made certain by calculation; and (3) the right to recover the obligation vests on a particular day.” Talcott, ¶ 40. Moreover, § 27-1-211, MCA, provides a right to prejudgment interest that arises independent of contractual authorization, see Turner, ¶ 44, and the statute “mandates interest as long as the legal situation fits within the broad guidelines of the statute.” Price Bldg. Serv. v. Holms, 214 Mont. 456, 469, 693 P.2d 553, 560 (1985). Thus, a party is entitled to interest on “amounts capable of being made certain” that are required “in order to make [the party] whole.” Talcott, ¶¶ 44,46. Here, Turner’s substitution bond discharged the lien in November of2008, and Turner no longer had a right to keep the retainage. Turner therefore wrongly withheld $374,225.82 from TIPS, and it did not raise issues concerning the quality or completeness of TIPS’s work as a possible justification. As the overriding purpose of § 27-1-211, MCA, is “to fully compensate the injured party for the loss of use of his money during the period in which a valid claim was not paid,” Holms, 214 Mont. at 469, we conclude that TIPS is entitled to interest at the legal rate on the retainage from the date the bond was filed until the court’s October 12, 2010 order. The decision of the District Court is therefore reversed and we remand to the District Court with instruction to determine the dollar value of 10% interest on the retainage from the November 2008 filing of the substitution bond until October 12, 2010.
¶60 5. Did the District Court err by dismissing Turner’s bill of costs for being untimely filed pursuant to § 25-10-501, MCA?
¶61 The District Court dismissed and denied Turner’s bill of costs, finding it was filed after the statutory deadline, lacked a signature or notary, and was “unintelligible and not in a form of separately delineated costs pursuant to § 25-10-501.” On appeal, Turner argues that Subsection 24 of the subcontract displaces the requirements of § 25-10-501, MCA, based on freedom of contract, citing Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 20, 318 Mont. 103, 79 P.3d 250. Turner alternatively claims that the bill of costs was timely filed because the court failed to file a separate judgment pursuant to M. R. Civ. P. 58(a) until January 16, 2012. We review a court’s order concerning costs for an abuse of discretion, Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 29, 293 Mont. 212, 974 P.2d 650, and a district court’s application of a statute in determining entitlement to costs is a question of law reviewed for correctness. Neal v. State, 2003 MT 53, ¶ 4, 314 Mont. 357, 66 P.3d 280.
¶62 a. Application of Title 25. Chapter 10. MCA, to Turner’s Claimed Costs
¶63 At the outset, a party’s entitlement to costs in a civil action is governed by Title 25, chapter 10, MCA. Under chapter 10, a defendant must be allowed costs “upon a judgment in the defendant’s favor in the actions mentioned in 25-10-101.” Section 25-10-102, MCA. One of the “actions” mentioned in § 25-10-101, MCA, is “an action for the recovery of money or damages, exclusive of interest, when a plaintiff recovers over $50.” Section 25-10-101(3), MCA. We previously construed the interaction of § 25-10-101 and -102, MCA, in Rodgers v. Mony Life Ins. Co., 2005 MT 290, 329 Mont. 289, 124 P.3d 137. There, we found that a defendant may recover costs by way of § 25-10-102, MCA’s reference to § 25-10-101(3), MCA, even if the plaintiff does not recover $50. Rodgers, ¶ 21. We reasoned the relevant action specified in § 25-10-101(3), MCA, is “ ‘an action for the recovery of money or damages,’ ” and concluded that “[t]he language, ‘when plaintiff recovers over $ 50[]’ does not change the type of action.” Rodgers, ¶ 21. We found that the latter clause was “only applicable to a plaintiff,” and concluded that if we were to interpret it as applicable to the defendant, “a defendant could never recover costs in an action for recovery of money or damages. Such is not the intent of the Legislature.” Rodgers, ¶ 21. As TIPS’s claim against Turner is clearly an action for money or damages under § 25-10-101(3), MCA, Turner’s claim for costs is enabled by § 25-10-102, MCA, and our decision in Rodgers.
¶64 While Rodgers and § 25-10-102, MCA, establish a statutory basis for Turner’s claim for costs, we have frequently allowed parties to contract for costs not allowed by Title 25, chapter 10. Section 25-10-201, MCA, enumerates the types of costs “generally allowable” in a party’s bill of costs, but we have long held that the list of items in that section “is exclusive except as to cases taken out of its operation by special statute, by stipulation of parties, or by rule of court.” Roseneau Foods v. Coleman, 140 Mont. 572, 580, 374 P.2d 87 (1962) (emphasis added); accord Kuhr v. City of Billings, 2007 MT 201, ¶ 37, 338 Mont. 402, 168 P.3d 615; Springer v. Becker, 284 Mont. 267, 275, 943 P.2d 1300 (1997); Masonovich v. School Dist., 178 Mont. 138, 140, 582 P.2d 1234 (1978). Subsection 24 of the subcontract is such a stipulation allowing costs, and reads:
Should CONTRACTOR employ an attorney to enforce any of the provisions hereof, or to protect its interest in any matter arising under this SUBCONTRACT, or to collect damages for the breach of this SUBCONTRACT, or to prosecute or defend any suit resulting from this SUBCONTRACT or to recover on the performance bond given by SUBCONTRACTOR under this SUBCONTRACT, SUBCONTRACTOR and his surety, jointly, and severally, agree to pay CONTRACTOR all reasonable costs and attorney’s fees expended or incurred therein.
Thus, while Turner’s bill of costs falls within the ambit of § 25-10-102, MCA, following our decision in Rodgers, Turner and TIPS have also entered into a stipulation allowing costs regardless of statutory authority, a practice that we have frequently upheld.
¶65 However, while we have long recognized a party’s freedom to contract for costs not allowed by § 25-10-201, MCA, the District Court’s denial of Turner’s bill of costs was based on the procedural requirements of § 25-10-501, MCA. Section 25-10-501, MCA, specifically requires:
The party in whose favor judgment is rendered and who claims the party’s costs shall deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court... a memorandum of the items of the party’s costs. ... The memorandum must be verified by the oath of the party, the party’s attorney or agent, or the clerk of the party’s attorney...
Section 25-10-501, MCA (emphasis added). Here, the District Court issued its final Findings of Fact and Conclusions of Law on November 22, 2011. Turner filed a notice of entry judgment on November 29, 2011. This notice both acknowledged the date of the judgment and attached a copy of it. Turner filed its bill of costs, without either a signature or notary, on December 12,2011, well more than 5 days after Turner had notice of the judgment. Turner clearly failed to adhere to the requirements of § 25-10-501, MCA, and failure to file a timely bill of costs results in waiver of the right to receive an award of costs. Pastimes, LLC v. Clavin, 2012 MT 29, ¶ 38, 364 Mont. 109, 274 P.3d 714. However, on appeal Turner challenges the court’s application of § 25-10-501, MCA, to the subcontract.
¶66 In essence, Turner argues that Subsection 24 of the subcontract displaced the procedural requirements of § 25-10-501, MCA. As support, Turner cites our prior holdings that parties are free to contract what costs may be awarded. See Ruhr, ¶ 37 (“Section 25-10-201, MCA, is an exclusive list of costs which may be taxed to an opponent unless the case is taken out of its operation by a more specialized statute, by stipulation of the parties, or by rule of the court.”); Bovee v. Helland, 52 Mont. 151, 155, 156 P. 416, 417 (1916). Thus, following Ruhr, Turner claims Subsection 24 of the subcontract is a stipulation that displaces § 25-10-501, MCA, despite the Ruhr decision’s clear reference to § 25-10-201, MCA. Indeed, § 25-10-501, MCA, concerns the form, not the substance, of a bill of costs. Turner’s citation to our previous decisions upholding contractual stipulations for costs beyond those allowed under § 25-10-201, MCA, is therefore misplaced. Deciding what procedures govern filing a bill of costs is a different question than determining what costs are allowed either by operation of Title 25, chapter 10 or by stipulation of the parties. Turner’s citations regarding the latter question are therefore unpersuasive.
¶67 Instead, we have previously found that “Section 25-10-501, MCA, provides the procedure for which the party in whose favor judgment is rendered claims his costs,” and routinely hold parties to its requirements. Sage v. Rogers, 257 Mont. 229, 242, 848 P.2d 1034 (1993); see also Doyle v. Clarke, 2011 MT 117, ¶ 40, 360 Mont. 450, 254 P.3d 570; Ruhr ¶ 38, (“§ 25-10-501, MCA, [controls] when a party was required to file his or her memorandum of costs.”); McDermott v. Carie, 2005 MT 293, ¶ 26, 329 Mont. 295, 124 P.3d 168 (finding § 25-10-501, MCA, requires a notary to verify the oath, and concluding that failure to properly swear to the accuracy of the bill renders it invalid). We reiterated the broad applicability of § 25-10-501, MCA, in In re Estate of Lande, 1999 MT 179, 295 Mont. 277, 983 P.2d 316. There, we recognized:
By its caption, and by the terms of the statutes contained therein, [Title 25, chapter 10,] Part 5 provides the means and manner in which costs are to be claimed. Nothing in those statutes makes a distinction or exception for costs being claimed in different types of actions.... The language of the statute is plain and unequivocal in encompassing all claims for costs.
In re Lande, ¶ 22 (emphasis added). Section 25-10-501, MCA, clearly applied to Turner’s bill of costs.
¶68 Additionally, even if we were to accept Turner’s argument that Subsection 24’s allowance of costs displaces § 25-10-501, MCA, the subcontract’s language is utterly devoid of any indication whatsoever of what procedures the parties intended to replace those found in § 25-10-501, MCA. We all recognize the language of a contract governs its interpretation, however there is nothing in Subsection 24 that either addresses or purports to replace the requirements of § 25-10-501, MCA. Accepting Turner’s argument would therefore require us to infer that the lack of contractual procedures for filing a bill of costs necessarily implies that the parties had some other procedures in mind. What those procedures would be, however, is a mystery. Without the application of § 25-10-501, MCA, to the subcontract, Turner would seemingly be free to submit the bill of costs at any time, in any form, and without either Turner or Turner’s counsel attesting to its accuracy. We have previously recognized that the requirements of § 25-10-501, MCA, serve an important informational function, in that filing a bill of costs pursuant to § 25-10-501, MCA, facilitates the uniform, timely notification of what costs are claimed and enables the opposing party to enter an objection. See Sherner v. Nat’l Loss Control Servs. Corp., 2005 MT 284, ¶ 55, 329 Mont. 247, 124 P.3d 150. Accepting Turner’s argument would therefore run contrary to the clear purposes of § 25-10-501, MCA. Sherner, ¶ 55.
¶69 In light of the plain language of the subcontract, we cannot conclude that the parties intended to displace the procedural requirements of § 25-10-501, MCA. This decision does not restrict the parties’ freedom of contract. See Klyap, ¶ 20. Because the subcontract contained no procedural language concerning how to file the bill of costs, it could not displace § 25-10-501, MCA. We conclude that Turner was correctly required to abide by the procedures contained in § 25-10-501, MCA, and therefore hold that the District Court’s denial of Turner’s bill of costs was not an abuse of discretion.
¶70 b. Effect of M. R. Civ. P. 58(a)
¶71 We also disagree that Turner’s bill of costs was nonetheless timely filed. Turner claims that because it filed a bill of costs on January 20, 2012, five days after the court issued its January 16, 2012 Notice of Entry of Judgment, we must reverse the District Court’s order dismissing and denying their claim for costs. However, to do so we would have to disregard both Turner’s prior recognition of the November 22, 2012 date of judgment and our holdings interpreting the language of § 25-10-501, MCA.
¶72 First, Turner filed a notice of entry of judgment on November 29, 2011, acknowledging November 22, 2011, as the date of judgment. Turner now argues that we should disregard this “premature” filing made before its counsel engaged in “close review of the newly revised Montana Rules of Civil Procedure.” As the District Court observed, “Turner not only filed a notice of entry of judgment but referred to the Court’s Findings and Conclusions as a judgment. That judgment was from November 22, 2011.” Turner is bound by this recognition.
¶73 Second, § 25-10-501, MCA, requires a bill of costs to be delivered to the clerk and served upon the adverse party “within 5 days after the verdict or notice of the decision of the court ....” We have previously found that “notice” under the statute “indicated knowledge of the court’s decision and that formal notification was not necessary.” Karell v. American Cancer Soc’y, 239 Mont. 168, 176-77, 779 P.2d 506 (1989); accord Shull v. Lewis & Clark County, 93 Mont. 408, 419, 19 P.2d 901 (1933); Miles v. Miles, 76 Mont. 375, 382, 247 P. 328 (1926). Turner had notice of the decision of the court at least at the time it filed its notice of entry of judgment on November 29, 2011. Turner’s earliest bill of costs, filed December 12, 2011, and received by TIPS no earlier than December 9, 2011, came more than five days after this date. We therefore find that the District Court’s order denying and dismissing Turner’s bill of costs as untimely was not an abuse of discretion and affirm its decision.
CONCLUSION
¶74 We accordingly affirm the decisions of the District Court regarding TIPS’s claims for additional compensation, TIPS’s claim it was the prevailing party, whether the construction lien was time barred, the return of the retainage, and Turner’s bill of costs. We reverse the District Court’s decision denying TIPS prejudgment interest on the retainage.
¶75 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.
JUSTICES COTTER, RICE, BAKER and MORRIS concur.
|
[
-29,
0,
-23,
4,
-23,
4,
-35,
-62,
30,
-15,
-27,
30,
10,
-43,
16,
-50,
34,
27,
-6,
37,
66,
-36,
84,
-75,
23,
35,
-15,
-13,
25,
-6,
8,
-30,
-40,
-23,
-7,
6,
-27,
36,
-23,
-64,
-62,
23,
-37,
-18,
6,
24,
-22,
1,
56,
-25,
33,
58,
-12,
-17,
-56,
24,
-60,
63,
-7,
35,
-10,
-1,
32,
-14,
44,
38,
17,
-16,
54,
-1,
-52,
-38,
30,
5,
39,
-56,
-15,
12,
-52,
-35,
-61,
27,
-77,
-19,
6,
1,
-1,
7,
31,
42,
-71,
-31,
12,
-10,
-27,
62,
13,
24,
-65,
30,
-49,
14,
-39,
-24,
71,
11,
1,
10,
-12,
49,
-9,
-32,
-54,
11,
-64,
76,
-11,
24,
-2,
23,
-12,
-13,
-21,
32,
33,
-27,
35,
-34,
-11,
26,
-26,
-15,
-8,
-14,
4,
30,
15,
-18,
-53,
53,
-45,
-30,
-21,
0,
61,
-16,
-16,
-2,
26,
-41,
27,
-28,
-12,
-8,
18,
-85,
-13,
5,
40,
-8,
41,
-25,
19,
52,
-29,
41,
16,
-15,
-23,
-14,
63,
-54,
7,
-35,
-14,
29,
-24,
-19,
-64,
-43,
-20,
-29,
-26,
-34,
0,
19,
-3,
15,
13,
13,
1,
-78,
-25,
18,
-43,
0,
9,
37,
51,
34,
4,
-9,
58,
-43,
0,
19,
8,
-14,
23,
-35,
9,
68,
1,
-28,
-36,
32,
-6,
-35,
25,
-5,
46,
21,
-4,
-66,
-50,
-26,
-86,
45,
62,
-3,
-57,
8,
36,
26,
-6,
28,
13,
-5,
21,
40,
-5,
-25,
-89,
-21,
-30,
-9,
-51,
30,
-2,
0,
-52,
33,
-3,
7,
32,
-38,
-11,
-26,
-16,
-62,
73,
23,
-48,
-33,
29,
18,
-45,
-18,
-23,
41,
-22,
-3,
32,
55,
-13,
0,
-10,
26,
20,
-24,
-25,
17,
-6,
-51,
-8,
37,
1,
57,
-29,
22,
-12,
-17,
16,
-12,
16,
-7,
-32,
-12,
-27,
40,
3,
10,
28,
-5,
69,
16,
-2,
42,
16,
-22,
11,
9,
-3,
-11,
-38,
0,
44,
17,
21,
-15,
-6,
54,
-5,
-21,
32,
-3,
-26,
-19,
60,
7,
-15,
62,
27,
56,
3,
14,
16,
31,
11,
14,
-18,
40,
37,
-34,
30,
21,
-1,
-34,
26,
0,
28,
18,
-19,
-35,
60,
36,
36,
20,
-8,
13,
56,
-6,
16,
-68,
-68,
4,
-12,
-9,
-9,
15,
-48,
14,
-22,
-5,
11,
9,
-44,
-6,
-48,
13,
25,
-14,
28,
-61,
33,
-63,
13,
36,
-27,
8,
4,
-46,
35,
80,
9,
-32,
-13,
-20,
33,
-5,
28,
11,
13,
0,
28,
-30,
-14,
4,
-20,
-2,
27,
-25,
-13,
-8,
-51,
-3,
-23,
-6,
6,
44,
41,
-15,
-13,
-14,
11,
15,
29,
37,
-32,
36,
-49,
44,
-1,
-68,
-57,
52,
22,
-33,
-44,
58,
-44,
21,
-6,
-54,
-8,
48,
33,
26,
35,
23,
-5,
9,
59,
25,
4,
14,
67,
-39,
49,
23,
40,
-13,
30,
54,
1,
-5,
27,
13,
-56,
36,
-58,
33,
43,
-13,
38,
51,
11,
3,
-51,
-7,
17,
46,
-2,
10,
-15,
-9,
10,
5,
19,
7,
1,
-45,
-2,
-97,
-57,
-3,
3,
30,
6,
2,
-51,
-56,
57,
-44,
21,
-17,
13,
-70,
23,
-12,
-38,
14,
54,
-20,
32,
2,
-36,
28,
44,
22,
0,
15,
-24,
19,
0,
21,
-35,
5,
36,
-25,
-25,
-15,
-7,
-34,
29,
-43,
55,
11,
-38,
-16,
-3,
2,
-48,
72,
-51,
23,
13,
-53,
2,
31,
-16,
-16,
19,
51,
-33,
-6,
29,
19,
4,
-37,
-36,
89,
-12,
7,
-9,
48,
-42,
21,
20,
-10,
-26,
34,
-27,
-1,
30,
-54,
-62,
-31,
49,
-41,
11,
36,
47,
-126,
-69,
13,
33,
31,
-2,
16,
-38,
-35,
8,
9,
0,
11,
-10,
-1,
-36,
47,
40,
1,
-40,
-42,
-44,
-41,
-1,
9,
29,
24,
-11,
0,
14,
-1,
-59,
-16,
14,
-27,
29,
-11,
63,
25,
-7,
34,
18,
44,
-21,
-41,
-36,
-3,
5,
-14,
-41,
-2,
-19,
-63,
5,
-5,
-7,
-27,
35,
-9,
22,
-32,
-21,
-51,
73,
29,
16,
-3,
41,
6,
93,
-15,
-2,
-17,
-1,
-2,
-32,
-46,
13,
6,
39,
19,
0,
-71,
1,
-9,
63,
21,
0,
-8,
2,
51,
16,
-10,
-33,
-6,
24,
38,
-49,
-50,
-5,
-20,
-46,
-37,
7,
-14,
-24,
-72,
-39,
-29,
1,
2,
-21,
15,
4,
-23,
-1,
-40,
-14,
17,
2,
22,
-3,
42,
-47,
-13,
86,
40,
79,
-4,
-61,
25,
-2,
15,
-46,
17,
-66,
-32,
22,
-23,
0,
-10,
-14,
5,
-31,
-52,
-67,
27,
-32,
6,
34,
48,
-12,
-59,
-5,
-92,
-45,
3,
22,
24,
32,
-14,
-47,
58,
30,
38,
18,
10,
39,
-10,
-65,
-3,
-2,
2,
0,
35,
-8,
-24,
-9,
-30,
62,
-28,
28,
10,
-20,
3,
26,
-39,
-29,
21,
51,
56,
29,
13,
16,
43,
-54,
-44,
10,
64,
28,
29,
-8,
14,
5,
47,
-7,
51,
-32,
-11,
-4,
-15,
-3,
-16,
1,
76,
15,
-68,
-22,
18,
47,
-47,
63,
8,
33,
12,
65,
-36,
-68,
-50,
38,
29,
72,
-19,
-57,
-17,
51,
-7,
-31,
15,
-40,
5,
-13,
-21,
-60,
32,
-34,
38,
22,
-12,
-34,
29,
-14,
-2,
31,
1,
19,
-60,
39,
-37,
-35,
1,
6,
5,
-23,
30,
-42,
-7,
-75,
-30,
29,
2,
34,
16,
1,
-14,
10,
33,
95,
8,
-39,
90,
-8,
-52,
-21,
-35,
-42,
-27,
43,
20,
-13,
8,
-21,
-9,
-4,
-15,
36,
-46,
-25,
27,
-8,
2,
-11,
-3,
-53,
3,
-26,
38,
-5,
-18,
-11,
-22,
11,
-45,
13,
-94,
0,
-19,
-24,
-16,
-8,
-1,
8,
27,
-39,
35,
-54,
13,
-10,
45,
-19,
9,
-54,
59,
17,
-53,
6,
40,
14,
-11,
-17,
22,
9,
-8,
-14,
58,
-57,
51,
-22,
1,
28,
41,
-4,
3,
18,
0,
-50,
18,
-29,
-17,
32,
-19,
2,
-41,
-27,
-8,
8,
7,
33,
3,
10,
74,
46,
-55,
-12,
27,
30,
-5,
-26,
29,
-28,
-28,
-19,
-11,
1,
42,
-34,
-54,
19,
-6,
71,
-24,
20,
-19,
-7,
0,
15,
-30,
73,
17,
8,
35,
-68,
-6,
22,
-24,
-6,
67,
18,
-59,
8,
6,
16,
14,
8,
-34,
51,
-27,
32,
38,
0,
-2,
-4,
40,
38,
-9,
18,
30,
-32,
-18,
-81,
5,
36,
60,
-48,
-54,
1,
-14,
32,
40,
21,
17
] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Plaintiff appeals from the judgment of the District Court for the Second Judicial District, Silver Bow County, granting summary judgment to Appellees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 David Harris (Harris) has been employed by the Department of Corrections (DOC) for approximately 13 years, specifically as a correctional officer at the Montana State Prison (MSP) in Deer Lodge, Montana. Since November 16,2000, he has served as a member of the Special Response Team (SRT) at MSP, which he continues to do today. SRT is an elite special weapons and tactical response team (SWAT) whose members are extensively trained to respond to the prison’s most dangerous crises such as inmate riots, escapes, and hostage situations. Membership is voluntary. To become a member, an applicant must qualify in physical fitness and firearms proficiency, and successfully undergo an interview process. If selected to join the team, the member must agree to fulfill the rigorous training requirements, which include attending a specialized six-day, 70-hour Primary SWAT Training and monthly 8-hour training sessions at the prison. Any SRT member who does not wish to fulfill the training requirements may resign from the team at any time. As of July 1, 2005, members of the SRT received an extra 50 cents per hour for being a team member.
¶3 In 2006, Mike Mahoney (Mahoney), the Warden at MSP, decided that the prison would purchase and use X-26 tasers, manufactured by Taser International. A taser is an electric stunning device which temporarily incapacitates superficial muscles. In accordance with the manufacturer’s recommendations, Mahoney issued a policy requiring all individuals who wanted to be authorized to use a taser at the prison to complete taser training, which included undergoing a five-second taser exposure. The direct experience of the voluntary exposure was meant to instill in the trainee an understanding of the effects of the taser and encourage the trainee to use the taser in a safe manner. According to Mahoney, none of the training was intended “to harm or injure any of the trainees in any way,” and extensive safety precaustions were used during the training to avoid injury. No employees were required to use tasers at MSP, and none were subject to job loss if he or she refused to undergo the tasing training. However, the training was mandatory for all members of the voluntary SRT team.
¶4 On June 28, 2006, all of the MSP wardens, which included Mahoney, the deputy warden, and the associate wardens, underwent taser training and the five-second exposure at the DOC. The lead instructor of the training was Sergeant Kim Micu (Micu), who at the time was an employee of MSP and certified by Taser International. There is no allegation or evidence that any of the wardens received any injuries as a result of their five-second exposures.
¶5 Then, on July 26, 2006, a taser training was held for the SRT at the DOC Center. Micu was the lead instructor. The training was conducted according to the Taser International training standards, and consisted of a classroom component and a five-second exposure. The classroom component of the training involved a 173-page Power Point presentation based on the training materials provided by Taser International. All of the materials from the Power Point presentation, which included slides specifically addressing the risks of taser exposure, were distributed as handouts to each trainee, including Harris. The risks of undergoing taser exposure were also disclosed in a written consent form that Harris signed prior to his five-second exposure. These risks included “severe” muscle contractions that “may result in injuries to muscles, tendons, ligaments, backs, joints and stress fractures.” Additionally, the form advised that the nature of tasing “involves a degree of risk that someone will get hurt or may even be killed due to physical exertion, unforeseen circumstances and individual susceptibilities.” At no time did Harris or any other SRT member object to completing the training or undergoing the voluntary exposure.
¶6 Art Garrison (Garrison), a corrections officer at MSP and lieutenant in command of the SRT, in July 2006, was the first person to undergo the voluntary exposure at the July 26, 2006, training. He suffered no injury from the tasing, and afterwards he served as a spotter to the other trainees. Following Garrison’s tasing, the SRT members underwent the exposure, including Harris. As a result of his five-second taser exposure, Harris claimed to have sustained injuries to his thoracic and lumbar spine. He received workers’ compensation benefits.
¶7 On July 23, 2009, Harris filed a complaint against the State of Montana, the DOC and several fictitious defendants (collectively “Appellees”). He alleged that he suffered an intentional infliction of personal injury by his fellow employee when he was tased by Micu at the July 26, 2006, training. He further raised a spoliation of evidence claim for the alleged loss or destruction of the DOC’s video recording of the taser training session. Appellees moved for summary judgment, arguing the suit was barred by the exclusive remedy provision of the Workers’ Compensation Act (WCA) and that there was no independent cause of action for Harris’s spoliation of evidence claim. On March 6, 2012, the District Court granted Appellees’ motion for summary judgment, and dismissed Harris’s claims with prejudice.
¶8 Harris timely appealed. We restate the issues on appeal as follows:
¶9 Issue One: Did the District Court err in granting summary judgment for Appellees on the grounds that Harris’s suit is barred by the exclusive remedy provision of the Workers’ Compensation Act?
¶10 Issue Two: Did the District Court err in determining that Harris does not have a cause of action for spoliation of evidence?
STANDARD OF REVIEW
¶11 We review the grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the district court. Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Albert, ¶ 15. Once the moving party has met its burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. Conclusory statements are insufficient to raise a genuine issue of material fact. Styren Farms, Inc., ¶ 10. We farther review a question of law to determine if the district court’s legal conclusions are correct. Palmer v. Bahm, 2006 MT 29, ¶ 11, 331 Mont. 105, 128 P.3d 1031.
DISCUSSION
¶12 Issue One: Did the District Court err in granting summary judgment for Appellees on the grounds that Harris’s suit is barred by the exclusive remedy provision of the Workers’ Compensation Act?
¶13 Harris argues on appeal that the District Court incorrectly concluded that his suit was barred by § 39-71-411, MCA, and thus erred in granting summary judgment against him. He contends that because Appellees intentionally and deliberately caused him to be tased, knowing it would injure him, his claim involves an “intentional injury” and therefore falls into the exception to the exclusive remedy provision of the WCA.
¶14 Appellees counter that their actions did not create an intentional injury as defined by § 39-71-413, MCA, and Harris’s claims are thus subject to the exclusive remedy provision. The purpose of the training and voluntary exposure, they contend, was to educate and train the employees to safely use a taser and to experience exposure in a controlled environment; it was not to injure anyone. Further, while they admit that they knew that the use of a taser entails a risk of harm, as clearly detailed in the Power Point presentation and in the consent form that Harris signed, they did not know for certain that Harris would be injured. Since Harris did not submit any evidence that suggested Appellees intended to harm him, nor did he present any information showing Appellees had actual knowledge that using a taser on him would cause him injury, Appellees argue the District Court correctly determined there were no issues of material fact and that summary judgment in favor of Appellees was appropriate.
¶15 The WCA generally provides the exclusive remedy for an employee who suffers an injury in the scope of his or her employment. Section 39-71-411, MCA. However, there is a narrow exception to this provision if an employee is “intentionally injured” by the employee’s employer or fellow employee while performing the duties of employment. Section 39-71-413(1), MCA; Wise v. CNH Am., LLC, 2006 MT 194, ¶ 7, 333 Mont. 181, 142 P.3d 774. The statute defines intentional injury as an injury caused by an “intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur.” Section 39-71-413(3), MCA; see Wise, ¶ 7. In other words, for a suit to fall into the exception to the exclusivity provision of the WCA, plaintiffs must allege facts or submit evidence sufficient to satisfy two required elements: (1) an intentional and deliberate act specifically and actually intended to cause injury; and (2) actual knowledge of the injury’s certainty. Alexander v. Bozeman Motors, Inc., 2010 MT 135, ¶ 21, 356 Mont. 439, 234 P.3d 880; see also Wise, ¶ 11.
¶16 Harris maintains that the actions of Appellees in exposing Harris to the taser “were intentional and deliberate” and thus fall within the WCA exception. He asserts that although Appellees did not actually intend that he receive the injuries he did, this “has no bearing on the fact that [Appellees] intentionally caused him to be subjected to the [taser],” knowing there was the possibility of serious injury. The District Court was correct when it stated that Harris’s argument “missed the legal mark,” because a chance of injury is not the same as an employer’s deliberate act to injure an employee.
¶17 We recently took the opportunity in Alexander v. Bozeman Motors, Inc., to discuss the evolution of the law relative to establishing intent for purposes of recognizing when plaintiffs are limited to the exclusive remedy of the WCA, and when their claim falls within its exception. While we do not think it is necessary to recite the entire history of § 39-71-413, MCA, again today, we will highlight what is most instructive to our analysis in the case before us.
¶18 In 2001, the Legislature amended § 39-71-413, MCA, to its present form. 2001 Mont. Laws 1095-96. Prior to the amendments, the statute provided that an injured employee’s remedy was not restricted to workers’ compensation benefits if the employee’s injury was caused by the “intentional and malicious act or omission” of the employer or fellow employee. 2001 Mont. Laws 1096. The purpose of the amendments was to remove the “malice” component and allow an injured employee to recover from an employee or employer who caused an “intentional injury,” and to narrowly define the meaning of such an “intentional injury.” 2001 Mont. Laws 1095-96.
¶19 In his brief, Harris cites to several cases that were decided before the 2001 amendments. Our analyses in these cases regarding what constitutes “intentional” conduct in the context of the WCA’s exclusivity provision remain useful to the extent they considered the proof required to show harm an employer specifically directed at an employee. None, however, provides support for Harris’s arguments. In only one of these cases did we determine that the plaintiff presented sufficient allegations to support his contention that there was an intentional injury allowing exception to the exclusive remedy of the WCA; however, it is distinguishable from the present case on both the facts and the law. In Lockwood v. W.R. Grace & Co., 272 Mont. 202, 900 P.2d 314 (1995), the plaintiff alleged his employer, W.R. Grace, intentionally harmed him by allowing him to work in a vermiculite mine and mill for several years when it knew or had reason to know that extended inhalation of vermiculite and asbestos particles created a high degree of harm. Lockwood, 272 Mont. at 208, 900 P.2d at 318. Lockwood worked in the mill for approximately ten years. Lockwood, 272 Mont. at 204, 900 P.2d at 316. Six years after he retired, he was diagnosed with mesothelioma, an asbestos-specific cancer, and died shortly thereafter. Lockwood, 272 Mont. at 204, 900 P.2d at 316. His widow filed a complaint against W.R. Grace; however, the district court dismissed it on the grounds that benefits under the Occupational Disease Act of Montana (MODA) were her exclusive remedy pursuant to § 39-72-305, MCA. Lockwood, 272 Mont. at 204, 900 P.2d at 316.
¶20 On appeal, we determined that Lockwood’s allegations included an intentional harm sufficient to avoid MODA’s exclusivity. Lockwood, 272 Mont. at 211, 900 P.2d at 319. Specifically, his allegations include that: Grace knew its acts created a high degree of harm to Lockwood; Grace actively concealed this knowledge from Lockwood; Grace failed to provide protective equipment sufficient to avoid the danger; Grace advised Lockwood that exposure to vermiculite and asbestos was safe; and these actions proximately caused Lockwood’s death. Lockwood, 272 Mont. at 208, 900 P.2d at 318. Harris relies on Lockwood for the proposition that an “intent to injure does not mean desire to injure;” even if an employer did not desire for an employee to be injured, he or she could still have “intended that the employee [ ] undergo the injury ....” Lockwood, 272 Mont. at 210, 900 P.2d at 319. Harris argues that the fact Appellees did not desire that he be injured, just as W.R. Grace did not desire for Lockwood to receive his injuries, does not mean the intent element was not satisfied.
¶21 Lockwood was decided under a different version of the “intentional harm” exception to exclusivity, but retains some relevancy for its focus on the employer’s actual knowledge that the employee was being harmed as opposed to a “mere allegation of known risk.” Lockwood, 272 Mont. at 210, 900 P.2d at 319. Harris nevertheless fails to establish that the intent to injure was present in his case. Appellees submitted affidavits to the District Court in which they maintained that the intent in using a taser during the training was to train individuals in the safe and effective use of the taser at MSP, not to injure anyone. Harris submitted one personal affidavit in which he explained his understanding of the purpose and effects of the taser, and his awareness of the risks associated with the five-second exposure, but did not present any affidavits or discovery materials placing Appellees’ intent at issue.
¶22 Unlike in Lockwood, where Grace allegedly concealed knowledge from the plaintiff that the work environment was dangerous, lied to him that it was safe, and failed to provide any protection against the known harm, here Appellees made the potential risks of the tasing very clear to Harris, and provided mats and spotters to protect him. Additionally, Harris’s supervisors, including Mahoney, underwent the five-second exposure before Harris or any of the other SRT members. Harris therefore was not asked to do anything his supervisors were not willing to do themselves. Mahoney’s policy was not meant to injure the trainees, who included himself and the other wardens, but rather to ensure that all employees at MSP who wanted to use a taser learn how to do so in a safe manner. Harris underwent the tasing at his own free will, giving full written consent to the exposure while acknowledging its potential risks. There is nothing to suggest Appellees deliberately acted with the intent to harm him.
¶23 Harris correctly points out that an employer’s intent may be inferred from facts and circumstances, and direct proof that the employer intended to cause an intentional injury is not required in order to survive a motion for summary judgment. See Alexander, ¶ 26. However, as we just illustrated, Harris failed to provide any evidence from which we can infer that the intent was to harm rather than educate and train. Instead, he points to the training materials that disclosed the risks associated with tasing, and merely speculates that Appellees intended to injure Harris “to some extent” by using the taser on him. We have previously said that the party opposing summary judgment “ ‘must set forth specific facts and cannot rely on speculative, fanciful, or conclusory statements.’ ” Sprunk v. First Bank Sys., 252 Mont. 463, 466, 830 P.2d 103, 105 (quoting Simmons v. Jenkins, 230 Mont. 429, 432, 750 P.2d 1067, 1069 (1988)). Viewing the facts in the light most favorable to Harris we conclude that he did not meet his burden and that the District Court correctly determined that Harris failed to present any evidence that Appellees deliberately intended to harm him.
¶24 We also agree with the District Court that Harris failed to identify any evidence that Appellees had actual knowledge that Harris’s exposure to the taser was certain to injure him, the second requirement of § 39-71-413(3), MCA. On appeal, Harris argues that Appellees knew that shooting Harris would “cause ... pain which can be stressful.” He points to the materials that were presented at the training session to argue that because Appellees knew of the potential effects of being shot with a taser, they knew that he was going to “receive at least some injury and knew the possibility of serious injury or even death existed.” Harris additionally argues that Appellees took the precautions of placing the trainees on padded mats and providing them with spotters for physical support because they knew he would be injured.
¶25 A risk or possibility of injury does not establish actual knowledge of the injury’s certainty as required by the statute. In Alexander, two former employees of Bozeman Motors, Ostermiller and Alexander, filed suit against the company on the grounds that it intentionally injured them when a gas stove leaked propane into their office, causing a build-up of carbon monoxide. Alexander, ¶¶ 2-7. Ostermiller worked in the office first, and stated that after he noticed the smell of propane at work, and upon feeling ill as a result of the inhalation of the chemical, he complained to Bozeman Motors. Bozeman Motors allegedly did nothing. Alexander, ¶ 3. Not long after, Ostermiller lost consciousness while in the office. Alexander, ¶ 3. He did not return to work thereafter. Alexander, ¶ 3. Alexander began working in the office soon after Ostermiller left, and also complained to Bozeman Motors about the harmful physical symptoms he was experiencing at work. Alexander, ¶ 4. Bozeman Motors did nothing, and Alexander’s health allegedly deteriorated to the point where he could no longer come to work. Alexander, ¶¶ 4-5. The district court granted summary judgment against Ostermiller and Alexander, determining they failed to show that Bozeman Motors intentionally injured them, and their claims were thus subject to the exclusivity provision of the WCA. Alexander, ¶ 10.
¶26 On appeal, we affirmed the entry of summary judgment against Ostermiller, and reversed with respect to Alexander. Alexander, ¶ 37. We concluded that Ostermiller’s allegations that Bozeman Motors intentionally and deliberately exposed him to dangerous conditions in his office (contaminated air), and did not respond to his complaints that he was becoming ill, nor take any measures to address the conditions, “viewed in a light most favorable to the Employees, simply do[es] not establish that Bozeman Motors had actual knowledge that requiring Ostermiller to work in this office would result in certain injury.” Alexander, ¶ 22. With regard to Alexander, however, the facts led us to a different conclusion. Alexander alleged that since Bozeman Motors knew of Ostermiller’s injury it had actual knowledge of the harm posed by the use of the stove in the office when it sent Alexander to work there. Alexander, ¶ 31. Further, Alexander asserted that he complained to Bozeman Motors, and that Bozeman Motors failed to warn him about the dangers posed by the stove. Alexander, ¶ 31. We determined that these allegations were sufficient to raise a genuine issue of material fact on whether Bozeman Motors “intentionally injured” Alexander as defined by § 39-71-413, MCA, and summary judgment was thus inappropriate. Alexander, ¶¶ 31-32.
¶27 In the case at hand, like Bozeman Motors who had no actual knowledge that injury was certain to occur to Ostermiller, Appellees had no such knowledge that tasing Harris would result in certain injury. There is no evidence of any prior reports of injury during taser training, nor of any other actions on Appellees’ behalf to suggest they knew with certainty that Harris’s voluntary exposure would harm him. Harris’s supervisors underwent the exposure prior to Harris, and no one received any injuries as a result. Further, unlike in Alexander where Bozeman Motors allegedly failed to warn Alexander of known dangers, Appellees were nothing but candid about the known risks of the taser.
¶28 Harris cites to Lockwood to support his position that Appellees knew that the taser would cause him injury. He argues that like Lockwood, who was put in a situation where his employer “knew that a high risk existed that he would be injured,” Appellees knew that tasing Harris would cause some injury and had the potential to cause serious injury or death. Harris’s reliance on Lockwood is misplaced. In Lockwood, we stated that “an allegation of less than actual knowledge ... is insufficient as a matter of law to serve as the basis for avoiding MODA exclusivity.” Lockwood, 272 Mont. at 209, 900 P.2d at 318. We recognized the difference between situations in which a defendant knew that its acts created a high degree of risk to the plaintiff versus a high degree of harm. The former, we determined, does not constitute an intentional injury. Lockwood, 272 Mont. at 209, 900 P.2d at 318. The latter, we said, “differs significantly from a mere allegation of known risk.” Lockwood, 272 Mont. at 210, 900 P.2d at 319.
¶29 In Lockwood, we found sufficient support for Lockwood’s allegations that Grace knew its acts created a high degree of harm to Lockwood, particularly because Grace allegedly concealed its knowledge of the harm and affirmatively advised Lockwood that exposure to the vermiculite and asbestos dust was safe. Lockwood, 272 Mont. at 210, 900 P.2d at 319. The distinction between cases in which the knowledge element is met and when it is not is “the employer’s alleged knowledge that the employee is being injured, in the former, versus the employer’s exposing the employee to risk of harm without certain knowledge that the employee is being or will be harmed, in the latter.” Lockwood, 272 Mont. at 210, 900 P.2d at 319.
¶30 Here, Appellees knew that using a taser created a risk of harm to Harris and the other employees who chose to undergo the exposure, which it fully disclosed during the training. However, there is nothing to indicate that they had certain knowledge that any of the employees would be harmed. Because an employer’s knowledge that its acts pose a risk to a plaintiff is not sufficient to establish “actual knowledge” of an injury’s certainty, as required by § 37-71-413, MCA, Harris failed to satisfy this requirement.
¶31 For the foregoing reasons, we conclude that the District Court did not err when it determined that the WCA was the exclusive remedy for Harris’s injuries and that his claims did not fall within the exception set forth in § 39-71-413, MCA.
¶32 Issue Two: Did the District Court err in determining that Harris does not have a cause of action for spoliation of evidence?
¶33 Harris argues the DOC either intentionally or negligently lost or destroyed the videotape of the July 26, 2006, training, and that he therefore has a valid cause of action against Appellees for intentional or negligent spoliation of evidence.
¶34 The torts of intentional and negligent spoliation of evidence are not recognized in Montana as independent causes of action against a direct party. See Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 32, 297 Mont. 336, 993 P.2d 11. They apply only to non-parties to the litigation. Estate of Willson v. Addison, 2011 MT 179, ¶ 23, 361 Mont. 269, 258 P.3d 410. Under the Montana Rules of Civil Procedure, trial judges are well-equipped to address a situation where one party alleges spoliation of evidence by another party in a lawsuit, and can even enter default when necessary. Oliver, ¶ 32. Here, Harris brought the claim against a direct party in the case; no third party was alleged to have destroyed evidence. Therefore, his tort claim is not recognized in Montana. In order for the District Court to have had authority to address Harris’s spoliation of evidence argument in some other way, there would have to first be a viable cause of action. See Oliver, ¶ 32. Because Harris’s personal injury claim against Appellees is barred by § 39-71-411, MCA, the District Court correctly determined that it could not remedy his alleged spoliation of evidence assertions.
CONCLUSION
¶35 For the reasons stated above, we affirm the District Court’s Order granting Appellees’ motion for summary judgment.
¶36 Affirmed.
CHIEF JUSTICE McGRATH, JUSTICES BAKER and COTTER concur.
JUSTICE RICE, concurring.
¶37 I concur with the result reached by the Court but not with the analysis. I believe the Court’s decision will foster confusion regarding the intentional injury exception to worker’s compensation exclusivity.
¶38 Harris cites to several cases that were decided under prior statutory schemes governing the intentional injury exception. The Court states that the analyses regarding intentional injury in these prior-law cases “remain useful” regarding “the proof required to show harm an employer specifically directed at an employee.” Opinion, ¶ 19. About one of these, the 1995 Lockwood case, the Court states the holding there concerning the intention necessary to establish that an injury was intentional “retains some relevancy.” Opinion, ¶¶ 20-21. The Court’s overall holding is premised in large part upon its discussion and application of Lockwood. See Opinion, ¶¶ 19,20,22,28, 29. The Court concludes by reaffirming the Lockwood construct that “[t]he distinction between cases in which the knowledge element is met and when it is not is ‘the employer’s alleged knowledge that the employee is being injured, in the former, versus the employer’s exposing the employee to risk of harm without certain knowledge that the employee is being or will be harmed, in the latter.’” Opinion, ¶ 29 (quoting Lockwood). After reaffirming the analysis in Lockwood, the Court distinguishes it from the present case on the ground that the employer in Lockwood “allegedly concealed knowledge from the plaintiff that the work environment was dangerous.” Opinion, ¶ 22.1 submit that the Court’s analysis is not a precise statement of current law and will engender confusion.
¶39 The legislative amendments to § 39-71-413, MCA, were significant, as they were expressly intended to overturn prior court applications of the statute. See Ch. 229, Laws of Montana (2001) (stating the bill was introduced to redefine the standard of intentional injury in response to court decisions); see also Wise v. CNH America, 2006 MT 194, ¶ 11, 333 Mont. 181, 142 P.3d 774 (“The amended version of § 39-71-413, MCA, contains significantly different language than the version we interpreted in Sherner.”). The “intentional injury” necessary to come within the exception to exclusivity is now defined as “an injury caused by an intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur.” Section 39-71-413(3), MCA (emphasis added); see also Alexander, ¶ 21. This is not the same definition as provided in the Lockwood construct of intentional injury here employed by the Court. See Opinion, ¶ 29. The Lockwood construct determined that “the knowledge element is met” by “the employer’s alleged knowledge that the employee is being injured.” Opinion, ¶ 29 (citing Lockwood). The Lockwood construct does not incorporate the concept, now in current law, that the necessary intention for the injury is multi-layered: caused by an “intentional and deliberate act” that was “specifically and actually intended to cause injury,” plus “actual knowledge that an injury is certain to occur.” In Alexander, we cited Lockwood as background but enunciated a new standard based upon the new statute:
[W]e hold that deliberate and intentional conduct may be inferred from factual allegations indicating that an employer knew an employee was being harmed, failed to warn the employee of the harm, and intentionally continued to expose the employee to the harm. Additionally, as required under the plain language of § 39-71-413(3), MCA, the employee must allege and demonstrate that the employer had “actual knowledge” of the certainty of injury.
Alexander, ¶ 30. Whatever relevancy Lockwood and other prior-law cases have was subsumed into this statement about the new standard. It strikes me as unwise to premise an opinion primarily on the Lockwood construct when, at best, it addresses the new intention element only in part.
¶40 Instead of reaffirming prior-law cases and holding that this case turns on the absence of “concealed knowledge ... that the work environment was dangerous” that distinguishes this case from Lockwood, Opinion, ¶ 22,1 would simply affirm the District Court by concluding that the evidence offered by Harris did not satisfy the definition of “intentional injury” as currently defined by statute and as applied in Alexander.
¶41 I concur.
Specifically, he cites to Blythe v. Radiometer Am., Inc., 262 Mont. 464, 866 P.2d 218 (1993); Calcaterra v. Mont. Resources, 1998 MT 187, 289 Mont. 424, 962 P.2d 590; Lockwood v. W.R. Grace & Co., 272 Mont. 202, 900 P.2d 314 (1995).
MODA generally provided for compensation by an employer to an employee disabled by reason of occupational disease arising out of the course of employment. It applied to all employers and employees subject to Montana’s WCA. In 2005, the Montana Legislature merged MODA into the WCA. For purposes of analyzing intent, the analysis under MODA in Lockwood with respect to its exclusive remedy provision is instructive to our analysis under the exclusive remedy provision of the WCA.
|
[
39,
13,
-6,
98,
40,
-37,
-58,
-24,
-44,
31,
-26,
12,
8,
6,
18,
2,
-18,
87,
-3,
29,
-2,
-37,
-22,
4,
-63,
0,
-50,
-21,
-6,
-3,
5,
-31,
56,
-45,
-30,
19,
-8,
15,
-17,
39,
18,
63,
25,
-16,
-74,
-9,
19,
70,
-51,
1,
25,
82,
-8,
19,
7,
-26,
-20,
-2,
-12,
74,
0,
31,
-5,
14,
11,
35,
41,
31,
-91,
-21,
28,
35,
-30,
-49,
-10,
52,
-20,
-12,
-33,
-41,
-64,
38,
-19,
-4,
13,
46,
10,
-61,
-9,
-10,
16,
-28,
-40,
-51,
-2,
20,
21,
-42,
30,
11,
-24,
-28,
17,
59,
-4,
-41,
5,
4,
5,
36,
-38,
20,
27,
-36,
-8,
5,
39,
7,
37,
103,
-58,
-12,
5,
-26,
21,
-72,
75,
0,
58,
36,
-17,
0,
66,
4,
-22,
-2,
-8,
29,
15,
-19,
-67,
52,
3,
-43,
38,
-1,
-19,
-16,
-25,
-32,
19,
-16,
-45,
17,
-23,
-33,
10,
49,
-73,
45,
54,
-3,
-14,
39,
33,
-10,
-4,
-24,
-20,
-55,
11,
11,
31,
25,
33,
5,
-38,
22,
19,
-26,
-24,
-1,
51,
36,
-13,
4,
58,
33,
-4,
13,
-83,
-26,
9,
-23,
24,
-23,
-9,
-2,
-26,
-37,
83,
89,
-6,
11,
1,
-27,
66,
31,
29,
-16,
-18,
22,
29,
9,
-57,
-21,
-41,
85,
-32,
-44,
0,
-47,
2,
43,
51,
-51,
0,
64,
-14,
-20,
15,
32,
48,
33,
-7,
-53,
-21,
6,
92,
-14,
33,
-27,
-11,
-18,
24,
31,
-19,
-64,
-54,
-17,
-46,
-9,
24,
26,
-48,
-10,
27,
-5,
0,
-12,
24,
-43,
-4,
18,
6,
46,
-38,
8,
-4,
-6,
-15,
18,
34,
-28,
-1,
-5,
-35,
14,
43,
-59,
49,
43,
22,
9,
-10,
-54,
13,
-41,
-55,
-31,
-4,
-55,
-14,
37,
35,
-39,
65,
-55,
-20,
33,
37,
14,
34,
13,
-35,
30,
25,
-3,
22,
8,
22,
-13,
-33,
7,
-30,
-30,
-28,
-28,
6,
-7,
-48,
15,
-17,
-38,
42,
-8,
-47,
29,
-4,
3,
36,
-33,
-21,
35,
1,
18,
13,
9,
37,
-27,
-51,
5,
21,
-20,
-17,
75,
5,
46,
-47,
-73,
28,
68,
39,
17,
14,
-1,
-44,
7,
47,
-20,
16,
-66,
-50,
-11,
-74,
38,
-2,
-9,
-64,
-35,
1,
-51,
37,
6,
36,
33,
9,
-11,
46,
8,
-25,
28,
51,
-73,
14,
-45,
13,
-47,
43,
-12,
8,
-19,
-48,
-6,
-56,
0,
-37,
-13,
41,
13,
22,
-43,
25,
11,
-19,
9,
-20,
-8,
-38,
-32,
0,
-7,
11,
26,
-10,
-44,
-6,
-61,
-10,
-4,
7,
-14,
-26,
18,
-7,
6,
-44,
16,
-55,
-11,
30,
0,
3,
33,
-61,
-56,
-68,
-3,
1,
-37,
-83,
-59,
3,
-28,
38,
8,
-13,
3,
33,
24,
-28,
3,
26,
-7,
-12,
24,
11,
30,
-13,
20,
-60,
-46,
21,
-12,
18,
-22,
-36,
-49,
-2,
-24,
30,
-1,
-8,
33,
21,
-7,
5,
30,
-38,
-21,
-33,
-25,
10,
2,
-47,
23,
-16,
55,
30,
7,
12,
46,
33,
-5,
-10,
35,
8,
56,
56,
-22,
1,
-52,
-1,
31,
-54,
29,
49,
5,
-53,
-19,
7,
53,
-7,
8,
8,
13,
-58,
-25,
-1,
-16,
-31,
18,
51,
6,
-1,
-20,
-3,
-35,
-30,
3,
17,
2,
83,
40,
48,
21,
-32,
-46,
60,
-17,
31,
-42,
-31,
-4,
46,
-34,
10,
-12,
7,
27,
37,
-7,
43,
29,
37,
-74,
17,
68,
8,
-11,
37,
30,
0,
50,
-18,
38,
-22,
12,
70,
-68,
-14,
42,
-42,
-3,
33,
-74,
25,
27,
-22,
25,
65,
3,
39,
23,
-28,
-41,
55,
-14,
-15,
11,
-18,
43,
21,
1,
-29,
20,
-8,
0,
-65,
-9,
5,
-60,
-36,
10,
17,
-60,
39,
-67,
58,
28,
-29,
-30,
23,
-24,
-45,
-11,
-1,
-10,
38,
-28,
-41,
-55,
28,
19,
-54,
-6,
-50,
-37,
13,
-50,
-42,
25,
-28,
23,
33,
35,
9,
23,
-39,
-36,
1,
3,
22,
-25,
10,
0,
-26,
42,
19,
-11,
34,
-11,
-2,
-16,
10,
55,
-36,
45,
72,
3,
-21,
64,
-12,
0,
-27,
4,
26,
-57,
-5,
-4,
58,
46,
-5,
-26,
44,
-5,
43,
-54,
-12,
-69,
-14,
-51,
14,
-24,
52,
55,
40,
-32,
6,
-7,
4,
88,
32,
13,
68,
-39,
23,
-2,
-33,
59,
3,
25,
-60,
-35,
-12,
-10,
-56,
-41,
23,
37,
-21,
20,
-5,
-2,
28,
-40,
-27,
-20,
-24,
9,
-48,
-15,
-77,
59,
37,
-3,
-50,
32,
-20,
42,
-36,
52,
-31,
20,
9,
27,
-17,
19,
10,
1,
-3,
-16,
47,
10,
16,
-19,
-10,
-81,
-4,
-2,
21,
-33,
-15,
-35,
-40,
-54,
27,
30,
-72,
0,
42,
42,
11,
-3,
26,
-19,
2,
14,
41,
-43,
59,
-15,
-30,
41,
14,
-47,
38,
-22,
-51,
4,
32,
37,
-53,
-9,
-9,
-21,
-66,
21,
28,
-37,
-11,
32,
6,
33,
26,
-24,
-18,
65,
-21,
-28,
-1,
30,
-23,
-18,
4,
-25,
66,
19,
32,
-27,
12,
19,
-15,
79,
-25,
17,
-50,
2,
-3,
28,
17,
-35,
17,
-14,
-16,
-5,
48,
3,
21,
33,
-25,
70,
1,
4,
-12,
-12,
-36,
-4,
3,
11,
55,
-3,
101,
-2,
27,
13,
16,
5,
9,
55,
-8,
-25,
-55,
7,
26,
-4,
12,
0,
-8,
52,
0,
15,
-42,
0,
-46,
-17,
23,
-10,
8,
-1,
5,
10,
49,
87,
-17,
24,
-21,
36,
-14,
-23,
3,
3,
-31,
-43,
43,
20,
-55,
-22,
10,
-46,
-37,
-27,
-48,
18,
-66,
-10,
24,
-4,
22,
-48,
12,
5,
-29,
21,
33,
20,
25,
8,
16,
9,
-27,
-3,
-3,
-42,
0,
49,
-83,
-10,
16,
-9,
-100,
19,
19,
5,
5,
15,
-70,
-14,
35,
63,
-8,
-1,
6,
-54,
0,
68,
-10,
17,
-34,
-13,
-8,
33,
-20,
49,
-18,
52,
-39,
-33,
-32,
-28,
11,
-39,
64,
22,
-41,
-15,
-11,
14,
-14,
2,
-5,
3,
15,
12,
-20,
3,
-7,
-76,
-10,
-27,
57,
8,
28,
-30,
17,
20,
-11,
15,
31,
15,
-29,
19,
2,
24,
-10,
-41,
-8,
5,
-34,
0,
21,
11,
-64,
29,
11,
-7,
0,
25,
18,
-43,
1,
28,
-74,
44,
-18,
52,
19,
-11,
-18,
23,
48,
-30,
-2,
-56,
-19,
-7,
9,
2,
-2,
36,
-6,
-5,
8,
-36
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 The defendant Joshua Kaye Andress appeals from his conviction of felony violation of a permanent order of protection and tampering with a witness. We affirm in part and remand in part.
¶2 Under the terms of a permanent order of protection (POP) dated March 2009, Joshua Andress is prohibited from any contact with his ex-girlfriend, Sara Nichols. In October 2010, Andress saw Nichols in a Missoula bar. It is undisputed that he was within fifteen hundred feet of Nichols in violation of the POP. Andress was on felony probation at this time for previous violations of this POP. Nichols called the police and Andress was subsequently arrested and charged with violating the order of protection.
¶3 While incarcerated at the Missoula County Detention Center, Andress created various notes he claimed were for his attorney. One note, however, was obtained by a soon-to-be-released cellmate, Paul Randleas. Randleas claimed Andress gave him the note to give to one of Andress’s acquaintances, Morgan Styles. The note asked Styles to make an untruthful statement to the authorities to help Andress. Randleas turned the note over to the police upon his release which resulted in Andress being charged with tampering with a witness. Following a jury trial in the Fourth Judicial District Court, Andress was convicted on both counts and sentenced from the bench to 15 years for each charge with 10 years for each charge suspended, to be served concurrently. The subsequent written sentence contained 26 terms and conditions that were not expressly stated during oral pronouncement of sentence, and imposed fines and fees in the amount of $260.
¶4 On appeal, Andress does not challenge any action taken by the District Court nor does he challenge his sentence; rather, he claims his attorney was ineffective in offering erroneous jury instructions and in failing to file a motion to conform the written sentence to the orally-pronounced sentence.
ISSUE
¶5 The issue on appeal is whether counsel rendered ineffective assistance.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 In March 2009, after a few years of dating, Sara Nichols sought and obtained a permanent order of protection against Josh Andress, claiming physical and mental abuse. Andress responded by leaving at least ten extremely profane and frightening messages on Nichol’s answering machine. These calls and other actions quickly resulted in multiple violations of the POP, the third and subsequent offenses being felonies.
¶7 On October 16, 2010, while on probation for these charges, Andress entered the Rhino Bar in Missoula and immediately saw Nichols. He left the bar but returned shortly thereafter at which time he saw Nichols was still there and he left again. Nichols claimed he subsequently left and re-entered twice more. She also claimed that he approached her after his third entrance, tapped her on the shoulder and spoke to her. He then left the bar and returned for the last time. Nichols left and called 9-1-1. The police came and interviewed Nichols, Nichols’ companion, and Andress but did not arrest Andress that night. The following day, Nichols called Andress’s probation officer, the county attorney’s office, and one of the responding police officers. Andress was subsequently arrested and charged with violating the POP.
¶8 While jailed in Missoula County, Andress made numerous notes about his case. He claims he made these notes to discuss with his attorney. One note, however, came into the possession of a soon-to-be-released cellmate, Randleas. Randleas testified that Andress gave him the note and asked that he deliver the message contained in it to Morgan Styles, a former co-worker of Andress. The note asked Styles to testify that he saw Andress at the Rhino Bar on the night of October 16 but that Andress spoke with no one and left the bar without returning. Styles never received the note, however, because Randleas, a police informant, turned it over to the police. The police contacted Styles who reported that he was not at the Rhino Bar that night and was out of town for that entire weekend. Andress was charged with tampering with a witness.
¶9 A jury trial was conducted on January 31, 2011, and Andress’s defense was that his contact with Nichols at the bar was unintentional and he never intended to violate the order of protection. He also admitted writing the Styles note but denied giving it to Randleas for delivery. A unanimous jury convicted Andress on both charges.
¶10 On March 23, 2011, the District Court judge orally pronounced sentence, sentencing Andress, as a persistent felony offender, to Montana State Prison (MSP) for 15 years for each charge with 10 years for each charge suspended. The sentences were to run concurrently with each other but consecutive to a two-year sentence that had been imposed on Andress the day before in another Montana district court. On March 25, 2011, the District Court issued its written judgment which included the prison sentence as well as 26 terms and conditions of probation and the requirement that Andress pay $260 in fines and fees.
¶11 Andress filed a timely appeal claiming his trial counsel was ineffective for offering jury instructions that set forth an incorrect mental state for the charged offenses, and for failing to move the District Court to conform Andress’s written sentence to his oral sentence in accordance with § 46-18-116(2), MCA. .
¶12 We affirm in part and remand in part.
STANDARD OF REVIEW
¶13 We review claims of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail -under Strickland, a defendant must show (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced him or her. Both prongs of this test must be satisfied; thus, an insufficient showing on one prong negates the need to address the other. This Court must also “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” State v. Mitchell, 2012 MT 227, ¶ 21, 366 Mont. 379, 286 P.3d 1196. Claims of ineffective assistance of counsel are mixed questions of law and fact which this Court reviews de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d 886.
¶ 14 Jury instructions serve an important role in trial. They guarantee decisions consistent with the evidence and the law, which can be accomplished when the instructions are as plain, clear, concise, and brief as possible. District courts have broad discretion when issuing jury instructions, but this discretion is restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law. The instructions must prejudicially affect the defendant’s substantial rights to constitute reversible error. State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100, 248 P.3d 303 (citations omitted).
¶15 The Supreme Court reviews a district court’s imposition of sentence for legality only. This is a question of law which we review to determine whether the court’s interpretation of the law is correct. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717.
DISCUSSION
¶16 Did Andress’s trial counsel provide ineffective assistance?
Jury Instructions
¶17 Andress was charged with violating § 45-5-626(1), MCA, which states in relevant part:
A person commits the offense of violation of an order of protection if the person, with knowledge of the order, purposely or knowingly violates a provision of ... an order of protection under Title 40, chapter 15.
Andress stipulated to having knowledge of the protective order and its contents, including the prohibition of being within fifteen hundred feet of Nichols.
¶18 Andress was also charged with witness tampering. Section 45-7-206(l)(a), MCA, provides, in relevant part:
A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, the person purposely or knowingly attempts to induce or otherwise cause a witness or informant to: testify or inform falsely ....
¶19 By their express language, these statutes provide that violation of the statute requires a person to commit an act “purposely or knowingly.” During settlement of jury instructions, Andress’s counsel proposed instructions that defined the terms “purposely” and “knowingly” as used in the statutes. Counsel proposed the following jury instructions derived from § 45-2-101, MCA, and the Montana Criminal Jury Instructions:
A person acts purposely when it is his/her conscious object to engage in conduct of that nature; or to cause such a result.
A person acts knowingly: when the person is aware of his or her conduct; or when the person is aware there exists the high probability that the person’s conduct will cause a specific result. (Emphasis added.)
The District Court accepted these proposed instructions and gave them to the jury.
¶20 Andress argues that his counsel’s proposed instructions included definitions of purposely and knowingly that did not apply to his charged offenses and, as a result, allowed the jury to convict him based upon his conduct, even if the jury believed his defense that he did not intend to violate the POP or tamper with a witness.
¶21 Section 45-2-101(65), MCA, defines “purposely” in relevant part:
' [A] person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.
¶22 Section 45-2-101(35), MCA, defines “knowingly” as:
[A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person’s own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person’s conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence.
¶23 Relying on State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996), and State v. Patton, 280 Mont. 278, 930 P.2d 635 (1996), Andress claims that the District Court was “required to instruct the jury on the definition of purposely and the definition of knowingly that applies in the context of the particular crime.” We agree that Lambert and Patton require courts to instruct the jury on the proper mental state element based upon the charged offense; however, beyond that these cases are distinguishable in that they address Montana’s criminal endangerment statute and our deliberate homicide statute. We have not previously determined whether §§ 45-5-626 and 45-7-206(l)(a), MCA, emphasize conduct or result of conduct.
¶24 Andress asserts the statutes he is charged with violating, as in Lambert, do not particularize conduct which, if engaged in, results in commission of the offense; rather, one may engage in a wide variety of conduct and still commit the offense. He maintains that § 45-5-626, MCA, “seeks to avoid the ‘singular result’ of the violation of a protective order, not the many forms of conduct that result in the violation of a protective order.” Similarly, he opines that § 45-7-206(1)(a), MCA, seeks to avoid the “singular” result of causing a witness to testify falsely, without regard to the many forms of conduct that could result in a witness testifying falsely.
¶25 In other words, it appears Andress is claiming that the correct jury instruction would have instructed the jury that he could be guilty of violating the POP only if it was his “conscious object,” or intention, to violate the order of protection or that he was aware that it was highly probable that his conduct would violate the statute. Additionally, vis-a-vis the witness tampering claim, because he admits he wrote the note but asserts he did not give the note to Randleas to give to Styles and he did not write the note with the purpose of committing witness tampering, the result-based purposely and knowingly jury instruction should have been given. Therefore, Andress asserts the appropriate jury instructions were:
A person acts purposely when it is his/her conscious object to cause such a result.
A person acts knowingly when the person is aware there exists the high probability that the person’s conduct will cause a specific result.
The “result” contemplated in these definitions is violation of the particular statute.
¶26 Based upon his defense theories, he maintains his counsel’s failure to present the appropriate jury instructions constitutes ineffective assistance.
¶27 For the following reasons, we conclude that the instructions given by the court “fully and fairly” instructed the jury on the applicable law. Hovey, ¶ 10. Additionally, we find no prejudice to Andress in the giving of these instructions.
¶28 The jury was presented with conflicting testimony throughout the trial. Andress maintained he did not intentionally run into Nichols nor did he touch her or speak to her. Nichols’ testimony, however, strongly refuted Andress’s claims. Appropriately, the District Court expressly instructed the jurors that they were “the sole judges of the credibility ... of all the witnesses testifying in this case, and of the weight... to be given their testimony.”
¶29 The jury heard evidence that Andress was forbidden under the order of protection to be within fifteen hundred feet of Nichols. He knew of this prohibition. He nonetheless entered the bar repeatedly after he saw her there, repeatedly placing himself well within fifteen hundred feet of her. Additionally, the jury also heard from Nichols that Andress approached her, touched her and spoke to her. Under these circumstances, Andress consciously engaged in and was aware of the prohibited conduct knowing it was in violation of the POP. Both his conduct and the result of his conduct could have reasonably led the jury to find him guilty under either the result-based jury instruction argued by Andress on appeal or the jury instruction given. Therefore, the jury instructions given fully and fairly instructed the jury on the mental state required to violate an order of protection. Furthermore, Andress’s behavior defies his claim that he did not intend to violate the POP. Had he left the bar after seeing Nichols for the first time and not returned, his claim that he lacked intention to violate the POP may have had greater credibility.
¶30 As to the witness tampering charge, Andress admitted that he wrote the note to Styles but claims he did not give it to Randleas for delivery. Therefore, he had no intent to tamper with a witness. Randleas testified otherwise. Based upon the jury’s unanimous verdict of guilt on the witness tampering charge, it appears the jury found Randleas more credible than Andress. If, as believed by the jury, Andress gave Randleas a note to give to Styles instructing Styles to lie under oath, Andress’s conduct and the result of his conduct justified his conviction, and instructing the jury solely on the result-based definition would not have changed the outcome.
¶31 As for his claim that his counsel was ineffective for proposing the jury instructions, having determined that Andress suffered no prejudice from the instructions, the second prong of Strickland has not been satisfied.
Nonconforming Judgment
¶32 Andress next claims that his trial counsel was ineffective for failing to move to conform Andress’s written judgment to his orally-pronounced sentence in accordance with § 46-18-116(2), MCA. The lengthy procedural record of this case suggests Andress framed this issue on appeal as an IAC claim because his attorneys did not seek to modify the judgment pursuant to § 46-18-116(2), MCA. However, under the authority set forth in Kroll, and other cases addressed below, we will directly review the allegedly nonconforming judgment and, consequently, need not find Andress’s counsel ineffective to resolve Andress’s claim.
¶33 It is well-established that the oral sentence pronounced from the bench in defendant’s presence is the “legally effective sentence and valid, final judgment.” State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. As we explained in Lane, ¶ 30, after reviewing numerous Montana cases, “holding the oral pronouncement of sentence to be the legally effective sentence is more consistent with our constitutional and statutory provisions.” We observed that “[a] defendant is present only when being sentenced from the bench. Thus, a defendant is sentenced in absentia when the [written] judgment and commitment order is allowed to control when there is a conflict.” Lane, ¶ 38.
¶34 Subsequently, in State v. Johnson, 2000 MT 290, 302 Mont. 265, 14 P.3d 480, Johnson faced a nonconforming written judgment with new conditions. He argued that “our holding in Lane logically implies that, in a strict sense, any portion of a subsequent written judgment that fails to conform, or in some manner conflicts, with an oral sentence is unlawful.” Johnson, ¶ 17. After substantial analysis, we determined that our Lane rule was somewhat “vague” and served to cloud the true issue, which was: “whether a written judgment has, without notice, substantively increased a defendant’s criminal sentence that was previously imposed in open court in the defendant’s presence.” Johnson, ¶ 24 (emphasis in original). We further stated:
In determining whether any portion of a judge’s subsequent written judgment is unlawful ... we need only determine first, whether the defendant was afforded the opportunity to respond to its inclusion upon sufficient notice at sentencing, and second, whether that portion of the written judgment substantively increases one of two things: (1) the defendant’s loss of liberty; and (2) the defendant’s sacrifice of property.
Johnson, ¶ 24.
¶35 Later, in Kroll, Kroll challenged several sentencing conditions in his written judgment that were not presented during his oral sentence. Kroll, ¶ 14. The State responded that Kroll had waived his right to complain about the imposition of such conditions because he had failed to seek modification of the written judgment in accordance with § 46-18-116, MCA. Prior to reviewing Kroll’s sentence claims, we addressed the proper interpretation of § 46-18-116(2), MCA. We observed that both parties were assuming that “after the expiration of the 120-day period, the written judgment is presumed correct.” Kroll, ¶ 16. We concluded this was an erroneous presumption and that “[sjection 46-18-116, MCA, simply provides the parties an avenue for conforming the written judgment to the oral pronouncement of sentence,” but it does not supersede or modify our holding in Lane, i.e., the orally-pronounced sentence is the legally effective and valid final sentence. Kroll, ¶ 18.
¶36 We further explained that “even when a criminal defendant fails to contemporaneously object at sentencing, this Court will accept jurisdiction of a timely filed appeal which alleges that a sentence is illegal or exceeds statutory authority.” Kroll, ¶ 19. Applying our rule and rationale from Johnson, we determined the district court did not err in imposing certain “stock requirements for probationers and individuals subject to a suspended sentence” into Kroll’s written judgment. We stated that the inclusion of these stock conditions did not “substantively increaseG the defendant’s loss of liberty or sacrifice of property.” Kroll, ¶ 22.
¶37 We also evaluated non-stock conditions in Kroll to determine if they had “a correlation to the crime for which he was convicted,” i.e., issuing bad checks as part of a common scheme. Kroll, ¶¶ 5, 26. We noted that §§ 46-18-201 and -202, MCA, allowed the court to impose sentencing restrictions or conditions that are “reasonable” and that the court considers necessary “to obtain the objectives of rehabilitation and the protection of the victim and society.” Kroll, ¶ 28. Under this analysis, we affirmed several “civil restriction” conditions in Kroll’s sentence. Kroll, ¶ 33.
¶38 In State v. Lucero, 2004 MT 248, ¶¶ 23-24, 323 Mont. 42, 97 P.3d 1106, we again rejected the argument that the failure to seek modification of a nonconforming written judgment in accordance with § 46-18-116(2), MCA, rendered the written judgment the “valid final judgment.” We held in Lucero, as we did in Kroll, that the stock conditions subsequently added to his written judgment were not unlawful as they did not impose significant restrictions that resulted in loss of liberty. Lucero, ¶ 28. However, we determined that specific conditions pertaining to being in bars and casinos or submitting to chemical substance tests did result in a loss of his liberty, did not bear a sufficient correlation to the underlying offense, and were not reasonably related to the objectives of rehabilitation and protection of the victim and society. We therefore ordered those conditions stricken. Lucero, ¶¶ 30-31.
¶39 Having established that: (1) failure to seek modification in accordance with § 46-18-116(2), MCA, does not bar this Court from reviewing Andress’s written judgment on appeal; and (2) inclusion of stock sentencing conditions does not deprive a criminal defendant of liberty or property and need not be stricken, we turn to the challenged provisions in Andress’s written judgment.
¶40 It is undisputed that the first prong of the Johnson test has been met. As noted above, because the District Court during sentencing did not orally impose the 26 terms and conditions later contained in his written sentence, Andress did not have the opportunity to respond to the correctness or appropriateness of these sentence provisions. We next determine whether the objected-to provisions must be stricken based upon the criteria set forth above.
¶41 As conceded by Andress, conditions 1-9, 17, 20-22, and 24-25 are affirmed under our precedent in Johnson, Lucero, and Kroll. These are stock conditions imposed upon probationers and defendant’s subject to suspended sentences.
¶42 Conditions 12-16 and 26 prohibit Andress from possessing or consuming intoxicants/alcohol, and entering bars or other establishments where intoxicants are the chief item of sale. Some also require him to submit to routine or random drug and alcohol testing, obtain a mental health evaluation, participate in counseling, and obtain a chemical dependency evaluation. Andress objects to these conditions but at his sentencing hearing he testified:
I need some counseling, and maybe some additional counseling on alcohol.
And, I would just hope that the Court would look at the facts of me needing some help in my alcoholism and relationship issues.
Additionally, Andress’s counsel further stated:
[T]he Court would note that in the Defendant’s criminal history, there is indication that he may have a substance abuse problem with regard to alcohol, and, certainly, that’s not helping the situation with regard to him being able to make good decisions, and that’s contributed to some of his decision-making in the past.
He does-as his mother indicated-have a condition which, also, impairs, to a certain extent, his decision making process, and, probably, alcohol is something that should not be involved, whatsoever.
Mr. Andress has not received any substantial inpatient treatment for alcohol, to my knowledge, and we feel that a five-year Department of Corrections sentence is appropriate in this matter, so that Mr. Andress could be afforded the opportunity to correct his problems with counseling, and with some inpatient treatment for the alcohol issue.
This testimony supports the District Court’s inclusion of the challenged conditions. Andress specifically requested alcohol treatment, counseling and mental health/relationship counseling. As were stated in State v. Holt, 2011 MT 42, ¶ 17, 359 Mont. 308, 249 P.3d 470, we will not put a district court in error for an action in which the appealing party acquiesced.
¶43 The remaining conditions 10, 11, 18, 19 and 23 are also non-stock conditions. They require Andress to pay certain fines and fees, refrain from gambling and entering casinos, and abide by a curfew. These conditions are not sufficiently related to Andress’s charges nor are they reasonably related to the objectives of rehabilitation and protection of the victim and society; therefore, we remand with instructions that these conditions be stricken from the written judgment.
CONCLUSION
¶44 For the foregoing reasons, we conclude Andress’s trial counsel did not provide ineffective assistance to Andress with respect to proposed jury instructions. We reverse the District Court’s inclusion of conditions 10, 11, 18, 19 and 23 in Andress’s written judgment and order that these conditions be stricken upon remand.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT, MORRIS and RICE concur.
Andress denied that he touched or spoke with Nichols, but while in the Missoula County Detention Center he purportedly told Paul Randleas that he had done so.
On March 22, 2011, Andress appeared before Judge Robert Deschamps on a Petition to Revoke his probation for felony and misdemeanor violations of this same order of protection. Judge Deschamps revoked Andress’s probation and sentenced him to two years at MSP.
|
[
-25,
-27,
-15,
67,
1,
-38,
-26,
-16,
-19,
1,
-59,
-8,
14,
-28,
-54,
-51,
-9,
-54,
-17,
-9,
17,
-33,
12,
22,
-66,
-20,
-8,
51,
-36,
0,
68,
41,
17,
-41,
6,
52,
23,
35,
13,
50,
19,
13,
35,
13,
-47,
13,
14,
57,
-25,
-4,
29,
-35,
28,
45,
1,
28,
0,
16,
14,
50,
-15,
16,
-47,
-9,
30,
-38,
53,
1,
-13,
27,
-2,
-26,
-51,
-28,
15,
-14,
-33,
-20,
-18,
-18,
-28,
37,
1,
45,
70,
-25,
6,
-21,
-30,
30,
-13,
32,
-15,
-59,
22,
-53,
25,
-66,
32,
-30,
23,
-7,
2,
32,
6,
71,
-16,
30,
38,
27,
-13,
26,
-14,
0,
-57,
3,
-6,
-4,
-2,
23,
5,
55,
23,
28,
50,
-46,
65,
-42,
-6,
-34,
-68,
39,
46,
23,
-78,
-26,
29,
21,
32,
-22,
-15,
-20,
32,
12,
-12,
-18,
5,
26,
-12,
-8,
-55,
-16,
-8,
45,
25,
-37,
-11,
-58,
-46,
10,
48,
-28,
-24,
20,
26,
18,
6,
10,
29,
17,
24,
3,
-52,
68,
5,
8,
-96,
-17,
-4,
-25,
33,
65,
-25,
-11,
-37,
33,
33,
4,
-26,
-64,
-56,
23,
8,
-49,
48,
-29,
3,
18,
40,
-23,
-4,
57,
47,
71,
5,
-25,
44,
30,
22,
-5,
37,
12,
-54,
-18,
-16,
-30,
-23,
-35,
-30,
45,
19,
-38,
-12,
0,
-38,
-34,
33,
0,
-65,
-58,
-3,
-30,
24,
0,
11,
-15,
-4,
-23,
36,
4,
-36,
-19,
-28,
12,
3,
27,
10,
-7,
-34,
-29,
1,
-12,
21,
3,
-53,
-27,
20,
-15,
-57,
32,
38,
-16,
37,
21,
-42,
33,
0,
29,
-52,
8,
-36,
14,
15,
11,
-24,
22,
-17,
62,
5,
-27,
-11,
35,
16,
-58,
8,
-76,
-7,
76,
29,
-6,
2,
-55,
1,
-33,
36,
17,
-16,
-26,
-17,
36,
-9,
-40,
-56,
-14,
-27,
-23,
20,
-10,
-41,
-37,
62,
16,
-43,
-6,
-21,
27,
-29,
-19,
37,
-29,
3,
21,
-51,
-38,
-49,
0,
-5,
-31,
16,
-11,
-25,
14,
-9,
-4,
10,
24,
24,
-1,
52,
-12,
-36,
-67,
17,
-48,
-42,
46,
14,
16,
-39,
-15,
6,
15,
-2,
-27,
2,
11,
-33,
-34,
17,
-21,
44,
19,
2,
-68,
1,
19,
0,
17,
6,
7,
-8,
-38,
-33,
0,
24,
7,
-5,
-15,
-27,
57,
25,
-29,
25,
10,
6,
6,
-24,
-21,
30,
-42,
12,
6,
-50,
-16,
-78,
4,
0,
-17,
50,
31,
70,
22,
43,
0,
-61,
-10,
-22,
11,
-52,
-24,
-31,
6,
16,
40,
22,
-16,
7,
-15,
-12,
-11,
8,
-19,
49,
-44,
72,
76,
-52,
30,
-2,
23,
11,
33,
36,
32,
5,
-17,
-15,
29,
12,
-18,
-32,
7,
-41,
0,
4,
-6,
11,
-6,
49,
39,
26,
-3,
42,
-7,
16,
49,
10,
24,
-3,
-38,
29,
-22,
-65,
41,
68,
1,
-43,
-18,
-5,
-9,
10,
1,
-22,
28,
21,
-8,
9,
25,
-34,
16,
-27,
19,
-12,
19,
-27,
37,
24,
-6,
9,
0,
-57,
30,
6,
28,
0,
-14,
3,
11,
5,
-17,
-48,
-7,
-45,
41,
44,
-7,
77,
-23,
-12,
-26,
38,
14,
-8,
-16,
-81,
-41,
15,
-12,
21,
0,
81,
16,
59,
16,
-10,
21,
-30,
0,
-25,
15,
-12,
5,
-11,
-5,
59,
24,
11,
-54,
48,
-30,
19,
25,
35,
23,
17,
-17,
14,
35,
0,
0,
21,
13,
16,
-17,
20,
-35,
-24,
67,
4,
-53,
26,
28,
-37,
13,
33,
-6,
-23,
1,
53,
-6,
10,
-3,
-51,
-8,
38,
-9,
0,
-42,
38,
-20,
5,
41,
-31,
17,
-47,
2,
-1,
-57,
36,
-24,
-18,
27,
-15,
-2,
-29,
-36,
-16,
-19,
-22,
8,
-6,
0,
3,
21,
43,
-35,
60,
10,
-10,
2,
11,
1,
-19,
-7,
-69,
48,
2,
-44,
-53,
-17,
-4,
-29,
35,
23,
4,
-38,
-71,
21,
-31,
7,
-33,
-28,
0,
26,
29,
35,
-26,
7,
-31,
-42,
39,
74,
-7,
23,
47,
-3,
40,
21,
34,
-26,
3,
47,
18,
-20,
6,
-7,
-1,
21,
59,
59,
-53,
-5,
-17,
22,
-32,
14,
14,
-42,
8,
19,
22,
-13,
-12,
-13,
24,
-20,
-6,
-79,
11,
-5,
11,
-53,
2,
39,
3,
-10,
-23,
9,
17,
34,
-5,
-27,
14,
4,
41,
-48,
66,
3,
-20,
0,
-21,
11,
8,
-46,
-9,
-15,
-6,
-47,
8,
35,
-11,
41,
-15,
13,
-14,
-42,
-26,
-18,
-53,
10,
-48,
38,
-33,
30,
55,
-41,
-6,
0,
3,
-17,
24,
25,
-4,
37,
-13,
28,
-61,
-2,
5,
45,
2,
-8,
25,
16,
14,
8,
20,
-24,
24,
-8,
42,
3,
29,
-10,
-53,
54,
66,
-4,
-86,
-6,
29,
23,
18,
-43,
-23,
-35,
31,
-11,
-33,
-11,
-39,
-35,
31,
48,
-41,
-31,
25,
18,
22,
-44,
9,
70,
-91,
-25,
18,
12,
39,
0,
-57,
68,
-14,
21,
10,
23,
14,
-3,
-10,
27,
-11,
-38,
-59,
2,
7,
-17,
-12,
15,
-25,
-5,
24,
54,
20,
53,
5,
42,
21,
5,
-65,
-30,
40,
-17,
23,
-44,
-5,
2,
8,
6,
-24,
-29,
6,
-8,
88,
37,
9,
2,
-37,
12,
-3,
36,
-43,
48,
48,
25,
-46,
14,
54,
10,
52,
6,
56,
-2,
19,
26,
-31,
-5,
-30,
-8,
1,
23,
-13,
6,
-13,
26,
-29,
-30,
-16,
-20,
84,
-88,
-16,
-5,
-30,
26,
78,
35,
-36,
21,
-15,
-42,
-57,
25,
8,
-34,
0,
-8,
31,
-32,
14,
-2,
17,
-26,
-62,
14,
42,
-40,
-33,
15,
35,
30,
-18,
-15,
30,
18,
-11,
39,
66,
-28,
-28,
12,
60,
-63,
-7,
-25,
18,
22,
5,
6,
-33,
56,
11,
-16,
-45,
27,
43,
41,
19,
-23,
-30,
-53,
-63,
72,
-3,
-6,
26,
-21,
-18,
8,
21,
-6,
-21,
17,
-50,
16,
-25,
-9,
19,
49,
-33,
-63,
-53,
-8,
-70,
1,
-19,
37,
26,
10,
-19,
12,
-13,
12,
-38,
61,
-27,
4,
-50,
-8,
27,
-39,
-8,
12,
11,
-33,
-12,
-1,
-36,
-10,
29,
2,
-67,
-6,
-33,
-1,
-8,
-18,
-37,
48,
-4,
68,
-17,
-35,
6,
6,
-27,
33,
14,
3,
-31,
-15,
-11,
1,
-77,
20,
-46,
10,
-25,
5,
-14,
32,
0,
-6,
78,
-44,
45,
-39,
5,
-2,
8,
52,
-50,
34,
-109,
0,
54,
20
] |
CHIEF JUSTICE McGRATH
delivered the Opinion of the Court.
¶1 Kamla L. Bekemans (Bekemans) appeals from her convictions in the Fifth Judicial District Court, Beaverhead County, of felony criminal endangerment; failing to use a lamp on a parked vehicle; failure to carry flares or other warning devices; failure to display warning devices on a disabled vehicle; operating a vehicle without insurance; and failure to park as close as practicable to the edge of the shoulder. We affirm in part and reverse in part.
¶2 Bekemans presents the following issues for review:
¶3 Issue One: Whether sufficient evidence supports Bekemans’ criminal endangerment conviction.
¶4 Issue Two: Whether Bekemans was denied her right to be personally present at all critical stages of the trial.
¶5 Issue Three: Whether Bekemans was denied effective assistance of counsel.
¶6 Issue Four: Whether the District Court violated Bekemans’ constitutional rights by basing its sentence in part on her refusal to acknowledge guilt.
¶7 Issue Five: Whether the District Court had the authority to restrict Bekemans’ eligibility for parole.
PROCEDURAL AND FACTUAL BACKGROUND
¶8 Brandon Davis (Davis) was killed in the early morning hours of July 28, 2009, when the vehicle that he was driving collided with a small bus parked in the middle of Interstate 15 (1-15). Bekemans had been driving the bus home to Livingston after purchasing it in Utah when it began to chug, slow down, and lose power intermittently. Bekemans had a mechanic at a truck stop near Idaho Falls examine the bus, but the mechanic could not identify the problem. After having difficulty crossing Monida Pass, the bus again started slowing down and chugging near mile marker thirty-two, south of Dillon. Instead of safely pulling the bus onto the shoulder of the road on the dark, moonless night, Bekemans stopped the bus in the middle of the right, northbound lane of traffic.
¶9 Bekemans’ attempts to restart the bus failed. After stopping the bus, Bekemans turned the engine off and then tried to restart the bus. When she turned the key, however, the “Wait to Start” light came on that is common to vehicles with diesel engines. Not knowing that she simply had to wait a couple of seconds for the light to extinguish before cranking the engine, Bekemans turned the key to the off position.
¶10 Bekemans failed to deploy standard warning devices after she failed to restart the bus. Bekemans was not carrying flares or emergency reflective triangles. She did not know how to activate her hazard lights. Upon finding herself parked in the middle of the interstate highway on a dark night without any warning devices deployed, Bekemans decided to turn the bus’s lights off. She told people on the scene after the crash that she had turned her lights off to conserve battery power. She claimed that she turned them back on whenever she saw a car approaching.
¶11 Bekemans had failed to turn her lights on to warn approaching drivers before the collision, however. Michael Twilleager (Twilleager) passed Bekemans’ bus while it was parked in the middle of the interstate. Twilleager, a professional driver for a transportation company, had been driving a large passenger van north on 1-15 on the night of the crash. About a mile before reaching Bekemans, Twilleager saw two pairs of taillights in front of him. Twilleager watched the vehicle in the left lane pull away from the other vehicle, and then the taillights in the right lane disappeared. Twilleager mistakenly assumed that the vehicle had pulled onto the shoulder of the road. As he approached, Bekemans’ lights remained off. Twilleager saw Bekemans’ bus in his lane at the last moment. He was able to narrowly avoid a collision by swerving into the left lane. He immediately called 9-1-1 to warn of the situation.
¶12 Jeff Buchman (Buchman), a professional truck driver, also passed Bekemans’ bus on the night of the crash. Buchman saw what appeared to be flashing lights come on in the right lane as three trucks approached Bekemans’ bus a ways in front of him. He watched as the three trucks put on their left turn signals and went around the flashing lights. After the three trucks had passed, the flashing lights disappeared. Buchman heard the drivers talking to each other on their CB radios, so he knew that a vehicle was in the road. Buchman slowed down to forty-five miles per hour and approached with his bright headlights on. Even so, Buchman did not see the bus in front of him until Bekemans turned her lights back on when he was one-quarter of a mile away. Buchman moved into the left lane and passed Bekemans going thirty miles per hour. After he passed the bus, Buchman warned a driver behind him on his CB radio that a bus was stopped in the middle of the interstate.
¶13 Davis received no such warning. He was traveling north on 1-15 on July 28,2009, on his way home to Red Lodge from Boise, Idaho. He was eighteen years old. Davis was reportedly driving well above the seventy-five mile-per-hour speed limit, and the toxicology report indicated that he had consumed an entire bottle of Robitussin Cough Syrup. Even so, a number of drivers whom he had passed just miles before the collision testified that they did not observe anything to indicate that his driving was impaired.
¶14 Unlike Twilleager and Buckman, Davis did not see Bekemans’ bus in the middle of the interstate until it was too late. Davis may have swerved to the right a split-second before the collision, but there were no skid marks and no indication that he had attempted to engage his brakes. A witness testified that he saw Bekemans’ bus with its lights on just after the moment of impact.
¶15 Bekemans was charged with criminal endangerment, a felony, and other traffic violations as noted above. J.B. Anderson (Anderson), the first attorney assigned to represent Bekemans, moved to withdraw from the case at Bekemans’ request on Thursday, November 4, 2010. The next day, the District Court scheduled a show-cause hearing for Tuesday, November 9th. A notice was mailed to Bekemans informing her that her attendance was required. Bekemans failed to appear at the hearing.
¶16 At the hearing, the judge told Anderson that he wanted to hear from Bekemans. Anderson responded that he had talked to Bekemans on the phone the day before the hearing. He said that he made sure that Bekemans knew about the hearing. Anderson also said that he had told Bekemans that he could ask for a continuance if she could not make it, but that she had not asked him to do so. The judge informed Anderson that he was considering issuing a bench warrant and asked him to speak on Bekemans’ behalf. Anderson responded, “I would hate to see that happen, but maybe she needs a wake-up call. I just think this is a person that just doesn't give a rip, Your Honor.” Anderson did, however, convince the judge to not issue a bench warrant at that time. The judge rescheduled the hearing for November 23, 2010, which Bekemans attended and participated in. At the hearing, the court found that Anderson and Bekemans had lost all meaningful ability to communicate and granted Anderson’s motion to withdraw.
¶17 The District Court conducted a two-day trial on April 21-22,2011. The jury convicted Bekemans of felony criminal endangerment and a number of the charged misdemeanor traffic offenses. Bekemans was sentenced to the custody of the Montana Department of Corrections (DOC) for ten years with all but five years suspended. The sentencing order requires Bekemans to complete a specific rehabilitation program before she can be released from custody.
STANDARD OF REVIEW
¶18 We review de novo claims of insufficient evidence. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. Claims that a defendant received ineffective assistance of counsel are mixed questions of fact and law, which we also review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095. We exercise plenary review over constitutional questions, including alleged violations of a defendant’s constitutional right to be personally present at all critical stages of trial. State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934.
DISCUSSION
¶19 Issue One: Whether sufficient evidence supports Bekemans’ criminal endangerment conviction.
¶20 We review the record for sufficient evidence in the light most favorable to the prosecution. State v. Gunderson, 2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74. There is sufficient evidence to support a conviction if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Finley, 2011 MT 89, ¶ 18, 360 Mont. 173, 252 P.3d 199. It is the jury’s role as factfinder to evaluate the credibility of witnesses, weigh the evidence, and ultimately determine which version of events should prevail. State v. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74. Thus, it is immaterial to our review whether the evidence could have also supported a different result. Weigand, ¶ 7.
¶21 A person commits the offense of criminal endangerment if the person knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another. Section 45-5-207(1), MCA. With respect to the offense of criminal endangerment, a person acts knowingly when the person is aware that there exists the high probability that her conduct would create a substantial risk of death or serious bodily injury to another. Section 45-2-101(35), MCA; § 45-5-207(1), MCA.
¶22 The uncontroverted evidence presented at trial established that Bekemans bought a small bus that she did not know how to fully operate. Bekemans drove the bus from Utah to Montana without insurance and without proper emergency warning devices. Bekemans continued driving the bus even after it began experiencing mechanical difficulties. Bekemans then stopped her bus in the middle of an isolated section of the interstate highway and turned off her lights during the dark, moonless night. There is no indication that Davis saw the bus in the middle of the road more than a split-second before the crash. Bekemans claimed to have turned her lights back on whenever she saw a vehicle approaching, but she had previously failed to turn her lights on to give adequate warning to other drivers. One witness testified that as he was approaching, Bekemans completely had failed to turn her lights on. Another witness testified that Bekemans turned her lights on one-quarter of a mile before he passed her even though he had his bright headlights on and had slowed down to forty-five miles per hour.
¶23 Bekemans argues that no rational jury could have found that her lights were not on at the moment of impact. Bekemans bases her argument on her own assertions and a witness’s testimony that her lights were on just after the crash. Even if Bekemans’ lights were on at the moment of impact, the jury could have found that she did not turn her lights on early enough to warn Davis of the impending danger. Davis did not engage his brakes before colliding with the bus. Drivers whom Davis had passed mere miles before he collided with Bekemans testified that Davis did not seem to be impaired and that he had passed them safely, in the left lane, albeit at a high rate of speed. A jury could have thus reasonably concluded that Bekemans’ conduct had created a substantial risk of death or serious bodily injury.
¶24 Issue Two: Whether Bekemans was denied her right to be personally present at all critical stages of the trial.
¶25 Both the United States Constitution and the Montana Constitution guarantee a criminal defendant the right to be personally present at all critical stages of trial. Charlie, ¶ 40. A critical stage is “ ‘any step of the proceeding where there is potential for substantial prejudice to the defendant.’ ” Charlie, ¶ 40 (quoting State v. Matt, 2008 MT 444, ¶ 17, 347 Mont. 530, 199 P.3d 244 (overruled on other grounds)). A defendant who voluntarily fails to appear waives her right to be personally present. State v. McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288. An absence is voluntary if the defendant knew of the hearing and failed to appear due to circumstances that were within her control. See State v. Clark, 2005 MT 169, ¶ 16, 327 Mont. 474, 115 P.3d 208.
¶26 Bekemans argues that she was denied her right to be personally present at all critical stages of trial because she was not at the November 9, 2010, show-cause hearing. Bekemans had actual notice of the November 9th hearing, however. The District Court mailed a notice of the scheduled hearing to Bekemans the Friday before the Tuesday hearing. Bekemans also spoke with Anderson on the telephone Monday morning. Anderson made sure that Bekemans knew about the hearing. Additionally, Bekemans did not attend the hearing due to circumstances that were within her control. At the rescheduled hearing on November 23,2010, Bekemans told the District Court judge that she had failed to appear because she did not have enough notice to attend and could not get time off of work. While attending the court proceeding may have been inconvenient, such an excuse is insufficient to make her absence involuntary. Bekemans could have asked Anderson to request a continuance, but she did not do so.
¶27 Bekemans was not denied her right to be personally present at the November 9, 2010, hearing by anyone but herself. Bekemans voluntarily failed to appear at the November 9,2010, hearing and thus waived her right to be personally present. Moreover, she was not prejudiced by her absence. The hearing was continued to a later date and the matter thoroughly examined at that time, with Bekemans present and participating.
¶28 Issue Three: Whether Bekemans was denied effective assistance of counsel.
¶29 Bekemans also argues that she was denied her right to effective assistance of counsel because Anderson breached his duty of loyalty to her. We evaluate claims of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466, U.S. 668, 104 S. Ct. 2052 (1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. To prevail on a claim of ineffective assistance of counsel, the defendant must prove both Strickland prongs. Bomar v. State, 2012 MT 163, ¶ 8, 365 Mont. 474, 285 P.3d 396. If the defendant makes an insufficient showing on one prong, then there is no need to address the other prong. Bomar, ¶ 8 (citing Whitlow, ¶ 11).
¶30 The first Strickland prong requires the defendant to show “ ‘that counsel’s representation fell below an objective standard of reasonableness.’ ” Whitlow, ¶ 14 (quoting Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064). The second Strickland prong requires the defendant to show that counsel’s deficient performance prejudiced the defense. Bomar, ¶ 8. To prove prejudice, “ ‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Kills on Top v. State, 273 Mont. 32, 49, 901 P.2d 1368, 1379 (1995) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In limited situations where counsel is burdened by an egregious actual conflict of interest, however, prejudice may be presumed. State v. Jones, 278 Mont. 121, 134, 923 P.2d 560, 568 (1996) (citing Frazer v. U.S., 18 F.3d 778 (9th Cir. 1994)).
¶31 In State v. Jones we held that an egregious actual conflict of interest exists, justifying a presumption of prejudice, when counsel totally abandons his duties of loyalty and confidentiality to the defendant and essentially joins the prosecution’s efforts in obtaining a conviction. In Jones, at a hearing two days before trial regarding counsel’s motion to withdraw, counsel disclosed that Jones had admitted to him in confidence that he had committed the alleged crime. Jones’ counsel told the court in the presence of the prosecution that the case was “open and shut,” and he further explained in detail why he believed that Jones was so clearly guilty. The district court in Jones denied counsel’s motion to withdraw, and Jones was represented by the same attorney at trial. We held that the district court had abused its discretion by denying the motion to withdraw in light of counsel’s clear conflict of interest and abandonment of his duty of loyalty to Jones. We vacated the conviction and sentence and remanded the case to the district court for a new trial with new counsel.
¶32 Bekemans argues that, like Jones’s counsel, Anderson totally abandoned his duty of loyalty by expressing to the District Court judge his belief that Bekemans was guilty and by telling the judge that she “just doesn’t give a rip.” Bekemans claims that Anderson expressed his belief that she was guilty by telling the judge that he thought Bekemans should accept the State’s plea offer, which he described as “an absolute bonus.” The State interprets these comments as merely Anderson’s opinion that the offered plea agreement was fair given the facts alleged in the charging documents.
¶33 Even if we accept Bekemans’ interpretation of the comments, Anderson did not effectively join the prosecution’s efforts in obtaining a conviction. His conduct was far from a complete and total abandonment of his duty of loyalty to Bekemans. Anderson did not disclose any confidential information and did not explain in detail why Bekemans was guilty. Anderson explained his communication breakdown with Bekemans, which was necessary for his motion to be granted.
¶34 Anderson’s explanation was not the same as counsel’s complete and total abandonment of the duty of loyalty and confidentiality in Jones. Moreover, the prejudice that the defendant presumptively suffered in Jones was not that the judge heard counsel’s remarks, but that the same attorney who abandoned him continued to serve as counsel throughout his trial. We accordingly remanded the case for a new trial with different counsel, but we did not require that the new trial be in front of a different judge. Bekemans could not have suffered the same prejudice that Jones suffered. Unlike in Jones, Anderson’s motion to withdraw was granted. Bekemans was assigned new counsel who represented her at trial over five months later. Jones is thus inapposite, and Bekemans must prove actual prejudice.
¶35 Bekemans contends that she was prejudiced because the comments were made to the judge who presided over her trial and sentenced her. Bekemans points to comments that the judge made while sentencing her to prove that the judge was influenced by counsel’s remarks. While sentencing Bekemans, the judge observed that he thought it was Bekemans’ intent “that she will control the process entirely, and we will all proceed based upon her determinations and her decisions.” The judge further remarked that Bekemans was “in complete denial about her responsibility for anything....”
¶36 The comments that the judge made at sentencing are not proof that the hearings were tainted. Bekemans concludes that the judge was necessarily influenced by Anderson because he expressed his thoughts about Bekemans after Anderson had expressed similar thoughts. Two people can have the same impression of an individual without one having influenced the other, however. The judge’s comments at sentencing were a reflection of his own observations throughout the course of Bekemans’ prosecution. The judge specifically remarked that his comments were “based upon everything that [he] has seen of this Defendant....” The fact that the judge’s observations were similar in sentiment to those conveyed by Anderson is not proof that Anderson influenced the judge or that the judge’s impartiality was compromised.
¶37 The record reveals that the District Court judge was not influenced by Anderson’s comments. The judge dismissed several charges during trial and also sustained a number of Bekemans’ objections. The facts of this case do not warrant a presumption of prejudice, and Bekemans has failed to prove that she did, in fact, suffer actual prejudice. Bekemans has thus failed to satisfy the second Strickland prong.
¶38 Issue Four: Whether the District Court violated Bekemans’ constitutional rights by basing its sentence in part on her refusal to acknowledge guilt.
¶39 The District Court considered many factors while fashioning Bekemans’ sentence, including her lack of remorse. Bekemans contends that the District Court impermissibly inferred her lack of remorse solely from her refusal to admit guilt. While it is true that a district court cannot impose a harsher sentence based on a defendant’s refusal to admit guilt, State v. Cesnik, 2005 MT 257, ¶ 25, 329 Mont. 63, 122 P.3d 456, affirmative evidence of a defendant’s lack of remorse may justify a sentence enhancement, State v. Garcia, 2011 MT 130, ¶ 13, 360 Mont. 537, 254 P.3d 589; State v. Rennaker, 2007 MT 10, ¶ 51, 335 Mont. 274, 150 P.3d 960. If lack of remorse is a factor in the sentencing, then in its pronouncement of the sentence the court must tie its finding of lack of remorse to actions or statements made by the defendant. State v. Duncan, 2008 MT 148, ¶ 54, 343 Mont. 220, 183 P.3d 111 (citing Rennaker, ¶ 51).
¶40 In State v. Imlay, we held that a defendant cannot receive a harsher sentence for refusing to admit that he committed the crime for which he was convicted or for invoking his privilege against self-incrimination. 249 Mont. 82, 91, 813 P.2d 979, 985 (1991). In Imlay, the defendant was convicted of felony sexual assault. He was sentenced to a five-year prison sentence, but execution of the sentence was suspended. As one of the conditions of his suspended sentence, the defendant was required to complete an outpatient sexual therapy program.
¶41 Imlay tried to complete the program recommended by his probation officer, but he was rejected as a patient by the counselor after six appointments because he refused to admit that he had committed a sexual offense. He tried to find other programs that would satisfy the requirement, but he was told that no outpatient program in the state would accept him if he continued to deny that he was guilty of sexual misconduct. The District Court found that Imlay had violated the condition requiring him to complete a sexual therapy program and revoked his suspended sentence. We held that revocation of Imlay’s suspended sentence violated his right against self-incrimination because he was subjected to a penalty that he would not have otherwise been subjected to if he had admitted guilt. Imlay, 249 Mont. at 90, 813 P.2d at 985.
¶42 In State v. Shreves, we held that “a sentencing court may not draw a negative inference of lack of remorse from the defendant’s silence at sentencing where he has maintained, throughout the proceedings, that he did not commit the offense of which he stands convicted-i.e. that he is actually innocent.” 2002 MT 333, ¶ 22, 313 Mont. 252, 60 P.3d 991. The defendant in Shreves testified at trial and asserted his innocence, but he chose not to testify at the sentencing hearing after being convicted. The judge based the sentence in large part on Shreves’ silence at the sentencing hearing and failure to explain why the crime had been committed.
¶43 We held that the judge had improperly penalized Shreves for exercising his right to remain silent and remanded for resentencing. In so holding, however, we also made clear that lack of remorse is a proper sentencing factor when evidenced by admissible statements made by the defendant at any stage of the proceedings, the manner of the commission of the offense as demonstrated by the evidence at trial, or by other competent evidence properly admitted at the sentencing hearing. Shreves, ¶ 21.
¶44 In State v. Cesnik, the defendant did not receive a harsher sentence because he invoked his right to remain silent, but because he affirmatively maintained his innocence even after being convicted. Cesnik was charged with assault with a weapon after an altercation at a shooting club. At trial, Cesnik did not deny that he had picked up a shotgun, loaded it, and then motioned for an individual to come outside shortly after having an argument with that individual. He did deny, however, that he had done so to threaten the individual. In other words, Cesnik denied that he had the requisite mental state to be convicted of assault with a weapon. A jury nevertheless convicted bim after a two-day trial.
¶45 When the probation officer who prepared the presentence report asked Cesnik how the court should proceed with his sentence, Cesnik told the probation officer that his charges should be dropped. Cesnik elected not to testify at the sentencing hearing. Cesnik was given a harsher sentence in large part because he refused to accept responsibility for his acts despite being convicted of the offense. Consistent with our previous holdings, we held that “a sentencing court may not punish a defendant for failing to accept responsibility for the crime when that defendant has expressly maintained his innocence and has a right to appeal his conviction.” Cesnik, ¶ 25.
¶46 Despite Bekemans’ contention, the District Court did not impose a greater sentence based on her refusal to admit guilt. Bekemans’ remorse or lack of remorse was discussed at length during the sentencing hearing. The probation officer first testified that he did not think that Bekemans had shown any remorse. Bekemans then testified that she had grieved Davis’s death and “felt remorseful all along.” Additionally, Bekemans’ lack of remorse was a main theme in the prosecution’s closing argument and the first thing addressed by the defense in its closing argument. Defense counsel argued specifically that people express remorse in different ways, and that it was his opinion that Bekemans had “expressed extreme sorrow,” and was remorseful. Based on the evidence presented at trial, the evidence presented at the sentencing hearing, and Bekemans’ conduct throughout the course of the proceedings, however, the judge reached a different conclusion. While pronouncing the court’s sentence, the judge remarked that “[i]n the event that the Defendant has grieved or expressed sorrow in this case, literally only she and her counsel are the ones who can ascertain it. It is not palpable; it is not apparent, and it is not detectable by anyone else.” This conclusion was based on competent evidence and was not improper.
¶47 Issue Five: Whether the District Court had. authority to restrict Bekemans’ eligibility for parole.
¶48 Lastly, Bekemans argues, and the State concedes, that the District Court exceeded its authority when it required her to complete the Cognitive Principles and Restructuring program before she can be released from the DOC’s custody. This requirement effectively serves as a parole restriction.
¶49 When a defendant is sentenced to one year or more of actual incarceration, we review a sentence for legality only. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. A sentence that commits the defendant to the custody of the DOC is not the same as a sentence of incarceration at a state prison. See § 46-18-201(3)(a), MCA. A defendant who is sentenced to incarceration at a state prison must serve her sentence in the prison facility. When a defendant is sentenced to the custody of the DOC, however, the DOC determines the appropriate location for the defendant, which may be someplace other than a state prison. A sentencing judge may only impose a parole restriction when the defendant is sentenced to a term of imprisonment in a state prison exceeding one year. Section 46-18-202(2), MCA. Thus, a judge who commits a defendant to the custody of the DOC cannot also impose a parole restriction. A judge can make recommendations when the defendant is committed to the DOC, but the DOC must determine whether to implement those recommendations.
¶50 Bekemans was sentenced to the custody of the DOC for a term of ten years with five years suspended. She was not sentenced to incarceration in a state prison. The District Court could not legally impose a parole restriction because it did not sentence Bekemans to incarceration in a state prison. We remand to the District Court to strike the requirement that Bekemans complete the Cognitive Principles and Restructuring program before she can be released from the DOC’s custody. The court may restate the stricken provision as a recommendation, if it so chooses. Whether Bekemans is required to complete the program will ultimately be determined by the DOC.
¶51 Affirmed in part, reversed in part, and remanded to the District Court for an order to strike the condition of the sentence as specified in paragraph 50 herein.
JUSTICES MORRIS, WHEAT, COTTER and RICE concur.
|
[
2,
34,
-31,
1,
32,
-48,
-13,
-27,
-23,
10,
-22,
17,
11,
-28,
-17,
-28,
26,
19,
0,
-38,
-94,
2,
47,
-50,
-43,
-22,
-19,
3,
-61,
20,
72,
-23,
50,
-54,
51,
47,
43,
78,
20,
16,
10,
0,
-30,
0,
-21,
14,
28,
1,
12,
15,
-4,
38,
0,
-29,
2,
-8,
28,
8,
-59,
24,
43,
-33,
13,
1,
-29,
-37,
25,
1,
-64,
45,
-78,
8,
-18,
-55,
-35,
10,
-1,
42,
-37,
-7,
-20,
35,
39,
-52,
39,
34,
-25,
-13,
-50,
1,
-19,
24,
-14,
0,
25,
68,
-4,
-92,
-5,
-5,
-49,
-17,
-16,
34,
0,
-17,
-63,
-26,
61,
-10,
-32,
51,
7,
-30,
7,
-24,
-46,
13,
-9,
55,
3,
0,
-7,
-23,
-42,
-28,
-1,
5,
10,
-37,
-22,
35,
74,
44,
-15,
-14,
-28,
-1,
36,
26,
-32,
4,
26,
6,
-1,
36,
9,
9,
-1,
-9,
8,
2,
-30,
-19,
-15,
-55,
36,
12,
8,
26,
21,
16,
71,
-7,
-36,
1,
-10,
30,
49,
-57,
22,
-26,
0,
3,
71,
-20,
-60,
24,
-4,
-40,
4,
36,
-30,
22,
-86,
1,
18,
34,
-13,
-29,
-29,
2,
-2,
-79,
23,
28,
-25,
7,
12,
-31,
35,
-11,
20,
2,
13,
18,
-29,
20,
31,
5,
26,
-12,
8,
-10,
-32,
11,
-10,
-28,
-26,
-2,
17,
-50,
18,
-48,
-8,
-22,
-26,
-23,
-53,
-65,
19,
-31,
18,
31,
-10,
17,
43,
-70,
6,
10,
30,
-31,
41,
28,
49,
-6,
-33,
-33,
-5,
-12,
6,
-2,
54,
2,
-58,
6,
45,
34,
-26,
-18,
38,
21,
16,
38,
-14,
73,
-36,
31,
-15,
-46,
10,
-9,
10,
34,
-48,
-8,
69,
-8,
33,
21,
62,
27,
16,
-13,
52,
-4,
-21,
56,
67,
-47,
5,
-57,
11,
65,
5,
-11,
42,
35,
-49,
34,
38,
-62,
-35,
41,
34,
-2,
0,
13,
-18,
34,
56,
15,
-13,
-10,
19,
19,
-1,
-31,
50,
37,
-28,
49,
15,
-41,
54,
43,
-32,
0,
-1,
-14,
-34,
8,
5,
12,
63,
-22,
14,
72,
26,
15,
-14,
-35,
-28,
-17,
-34,
-34,
36,
64,
-32,
-78,
-22,
26,
24,
-12,
-41,
-26,
42,
-29,
3,
-31,
4,
-8,
0,
26,
10,
-23,
80,
12,
-55,
-34,
19,
-32,
12,
0,
17,
-24,
60,
-18,
-4,
12,
22,
-22,
-15,
-53,
-5,
32,
34,
-28,
-39,
-45,
39,
13,
-30,
-42,
-73,
-53,
-27,
24,
39,
-50,
-26,
16,
-13,
-30,
-3,
3,
-74,
48,
-36,
-16,
-72,
-52,
32,
55,
1,
20,
-8,
-13,
-40,
-20,
-6,
-1,
52,
-24,
10,
18,
-47,
59,
-16,
1,
8,
-15,
21,
-1,
-32,
-64,
32,
-55,
24,
39,
21,
-5,
-27,
-35,
-43,
28,
9,
-10,
30,
-14,
3,
-23,
36,
27,
-21,
21,
49,
-3,
-26,
11,
-47,
16,
-16,
5,
43,
-21,
4,
-40,
26,
-33,
1,
75,
-48,
-10,
54,
2,
-48,
61,
15,
29,
-9,
-20,
1,
-31,
-22,
0,
16,
-14,
-4,
13,
34,
47,
-28,
-49,
-31,
-47,
17,
48,
19,
-39,
-3,
19,
-25,
1,
5,
-31,
39,
23,
-16,
-33,
45,
23,
16,
17,
-26,
-6,
-27,
39,
33,
32,
-17,
3,
8,
-8,
-15,
62,
-9,
-35,
-31,
-35,
11,
-4,
37,
3,
48,
13,
-1,
0,
19,
-44,
0,
2,
-33,
-37,
-11,
-44,
14,
14,
51,
21,
47,
3,
-10,
8,
42,
-34,
-26,
-14,
-2,
-19,
-3,
23,
-8,
13,
39,
33,
-25,
-10,
39,
-78,
-21,
-22,
-52,
-40,
-15,
16,
0,
11,
-54,
-38,
-22,
21,
-67,
40,
-60,
-21,
32,
-14,
37,
-42,
38,
4,
6,
12,
-2,
11,
19,
-46,
-12,
-33,
-8,
16,
12,
58,
67,
0,
2,
-63,
3,
-17,
3,
8,
-9,
28,
-1,
12,
-14,
-19,
0,
-4,
0,
-15,
17,
-12,
-27,
10,
-31,
-17,
-8,
-38,
-32,
-8,
-43,
-33,
-33,
-15,
35,
69,
-22,
-47,
60,
18,
39,
-24,
9,
-12,
-15,
56,
-69,
-12,
-10,
24,
10,
-61,
17,
71,
-35,
-18,
-29,
-24,
18,
-7,
-42,
-42,
-61,
-45,
-38,
-16,
-40,
-11,
2,
-24,
7,
-1,
44,
6,
15,
-22,
-6,
-22,
17,
-58,
-12,
-25,
-24,
-31,
-20,
1,
55,
-19,
5,
32,
16,
44,
32,
-56,
9,
-2,
-72,
18,
8,
-18,
-26,
36,
-50,
40,
33,
-57,
9,
58,
-13,
34,
0,
13,
-22,
-43,
14,
-70,
-58,
25,
-17,
24,
-44,
-53,
29,
-12,
18,
-31,
16,
0,
16,
25,
3,
4,
2,
-31,
35,
-14,
53,
17,
-6,
41,
32,
-19,
-16,
-2,
-18,
-16,
35,
-9,
27,
-12,
23,
-30,
-50,
14,
94,
38,
-12,
-35,
37,
8,
32,
42,
20,
-17,
-1,
-27,
25,
-5,
-1,
10,
-41,
31,
-41,
69,
21,
44,
24,
-11,
-30,
1,
-56,
-2,
14,
36,
-20,
50,
2,
13,
29,
50,
73,
34,
6,
24,
0,
17,
-21,
35,
-6,
29,
6,
28,
77,
33,
15,
29,
51,
21,
15,
59,
-8,
19,
33,
2,
69,
-10,
-27,
-21,
37,
-17,
-44,
-5,
33,
-37,
-2,
-26,
-10,
-45,
-1,
1,
-14,
20,
-59,
47,
-8,
44,
39,
-2,
31,
66,
-4,
-4,
42,
6,
19,
16,
12,
20,
-40,
-1,
26,
-11,
-34,
-14,
-13,
26,
31,
-20,
21,
10,
-30,
8,
-26,
4,
-30,
4,
1,
45,
-1,
46,
80,
20,
-19,
-32,
24,
-30,
-12,
-16,
15,
-40,
30,
57,
49,
-49,
-12,
-30,
-39,
-23,
-29,
-13,
5,
-37,
-101,
33,
-17,
22,
-8,
-53,
17,
52,
-46,
12,
-19,
-21,
8,
49,
-51,
0,
-50,
20,
-23,
-10,
1,
4,
-87,
-33,
61,
-14,
15,
-9,
56,
-2,
22,
5,
-58,
-12,
-30,
48,
-14,
29,
50,
-6,
-15,
17,
15,
7,
-55,
-53,
-18,
25,
-19,
27,
43,
-31,
14,
-35,
-50,
-9,
26,
-1,
-51,
22,
14,
13,
-61,
-12,
37,
-23,
-16,
-4,
33,
24,
31,
-19,
7,
10,
-10,
44,
-11,
15,
34,
15,
-9,
-27,
4,
17,
0,
-2,
-18,
-8,
24,
45,
-17,
-17,
0,
-7,
-59,
68,
-76,
-3,
-21,
30,
-10,
-33,
44,
2,
2,
-53,
15,
2,
-23,
31,
-21,
15,
-25,
1,
1,
58,
39,
0,
8,
-69,
31,
-30,
-7,
8,
5,
32,
-39,
24,
27,
-32
] |
PER CURIAM.
From a single judgment entered in the district court of Lake county in two separate eases, the defendants George H. Halverson and Rose H. Halverson, his wife, have taken two appeals by serving and filing in the district court in each ease a separate notice of appeal.
The transcript on appeal filed in this court comprises 54 typewritten pages setting forth a certified copy of the judgment roll and a notice of appeal in each case.
The transcript contains none of the evidence introduced at the trial,- — -nor any of the instructions given to the jury, and no bill of exceptions, nor does it show that any bill of exceptions was either prepared, settled or allowed in either case. The only facts available to this court are such as may be gleaned from a combing of the pleadings for averments made by one set of litigants which are admitted in the pleadings of their adversaries.
The case first commenced in the district court was an action in tort by Earl Koger and Helen Koger, his wife, plaintiffs, against Halverson and his wife, defendants, to recover damages for the alleged wrongful conversion of certain cattle whereof plaintiffs claim to be the owners and entitled to the possession of an undivided one-half interest.
The second case was an action brought by the Kogers as plaintiffs against the Halversons as defendants to recover damages for the alleged breach by defendants of the terms of a written agreement and lease.
The defendants filed in each case a lengthy “Answer and Cross Complaint” in four parts, wherein are set forth: (1) An answer; (2) a “Separate and First Affirmative Defense”; (3) a “Separate and Second Affirmative Defense and Counterclaim” and (4) a “Separate and Third Affirmative Defense and Cross Complaint.”
Defendants’ counterclaims in each case are identical as are the cross-complaint wherein they charge plaintiffs with unlawful detainer of the leased premises consisting of a ranch comprising approximately 1,400 acres.
The judgment recites: That pursuant to an agreement in open court between the parties and their counsel, the two cases were consolidated for trial in the district court and there tried together by one jury; that during the trial it appeared that the ownership and right to possession of certain hay on the leased premises was in controversy, although not presented or raised by the pleadings and that following a discussion in the presence of the jury in open court between counsel for the respective parties it was there agreed that all issues between the plaintiffs and the defendants including the matter of the ownership of the hay and all matters arising out of the written agreement and lease should be submitted to and decided by the jury so as to obviate the necessity for another law suit involving substantially the same testimony and that “the jury was instructed orally in open court that all issues involved between the parties plaintiff and defendants, arising out of said contract of lease — rights to the livestock, rights to the hay, right of possession of the premises and damages were submitted to the jury.”
The judgment further recites that “witnesses were duly sworn and testified for and on behalf of the plaintiff and for and on behalf of the defendants and cross examined by respective counsel # * * and thereafter the jury returned a special verdict” and that pursuant thereto the court adjudged: (1) That defendants have judgment against the plaintiffs in the amount of $2,476.21; (2) that the plaintiffs have judgment against the defendants in the amount of $3,333.35; (3) that the defendants are entitled to the immediate possession of the described real estate comprising the ranch, subject to the rights of plaintiffs to remove therefrom the hay other than 65 tons of chopped hay which is to be left on the ranch; (4) that all hay other than said 65 tons of chopped hay is the property of the plaintiffs who are granted a reasonable time within which to take and remove same; (5) that the defendants are not entitled to have the damages awarded them by the jury for the plain tiffs’ unlawful detainer of said ranch lands trebled and (6) that each of the parties shall pay their own costs.
These appeals are in actions at law. On appeal in snch action this court entertains and indulges the presumption that the trial court’s determination and judgment are correct, the burden being cast upon the appellants to affirmatively show reversible error by the record filed by them on their appeals. Herberson v. Great Falls Wood & Coal Co., 83 Mont. 527, 533, 273 Pac. 294; Downs v. Nihill, 87 Mont. 145, 148, 286 Pac. 410; State ex rel. Wentworth v. Baker, 101 Mont. 226, 229, 53 Pac. (2d) 440; Dalbey v. Equitable Life Assur. Soc. of U. S., 105 Mont. 587, 598, 74 Pac. (2d) 432; Koppang v. Sevier, 106 Mont. 79, 97, 75 Pac. (2d) 790. Error or prejudice will not be presumed. Valier-Montana Land & Water Co. v. Ries, 109 Mont. 508, 520, 97 Pac. (2d) 584; Lindeberg v. Howe, 67 Mont. 195, 199, 215 Pac. 230. See R. C. M. 1947, sec. 93-3909, and Sherburne Mercantile Co. v. Bonds, 115 Mont. 464, 145 Pac. (2d) 827.
In the absence from the record of the evidence this court is precluded from inquiring whether such evidence if presented would sustain the trial court’s determination and judgment. We are wholly unable to say from the scanty and skeleton record before us that the trial court committed reversible error in the judgment rendered. Accordingly the judgment is affirmed.
|
[
-28,
53,
35,
-26,
-40,
-65,
0,
23,
-5,
7,
17,
-28,
-29,
19,
-25,
-10,
-36,
-33,
55,
-32,
-3,
-9,
-38,
53,
-19,
-13,
0,
-14,
23,
-32,
43,
65,
-40,
-15,
44,
-2,
86,
20,
-1,
26,
12,
-7,
73,
-66,
5,
25,
2,
-18,
53,
-22,
24,
-54,
8,
-1,
-13,
-56,
-18,
26,
50,
0,
3,
-8,
-1,
-13,
33,
4,
35,
-43,
-14,
-72,
15,
-14,
20,
-35,
14,
-71,
8,
-27,
17,
9,
35,
15,
46,
8,
-61,
-28,
46,
10,
15,
5,
-60,
57,
1,
39,
22,
-9,
28,
28,
-35,
20,
-12,
-24,
3,
31,
-36,
-25,
-47,
29,
23,
15,
1,
25,
0,
13,
-23,
-17,
27,
-21,
8,
15,
2,
-20,
18,
12,
3,
38,
-38,
62,
66,
-5,
17,
6,
25,
31,
6,
-53,
21,
-82,
26,
10,
-1,
3,
-10,
-54,
19,
28,
-29,
6,
-3,
28,
-20,
18,
0,
43,
34,
-17,
0,
-12,
6,
-43,
58,
3,
-51,
-19,
12,
-23,
-13,
9,
-4,
-78,
3,
-27,
-4,
-5,
22,
-20,
25,
23,
-23,
51,
50,
29,
28,
-11,
-20,
12,
37,
-29,
-60,
12,
27,
-33,
-13,
-27,
58,
0,
1,
34,
29,
24,
0,
-36,
14,
14,
68,
14,
56,
5,
58,
7,
3,
-27,
-10,
9,
5,
-11,
-28,
-17,
-54,
8,
0,
29,
-37,
1,
-32,
-9,
26,
-11,
4,
-15,
-31,
2,
8,
20,
4,
-58,
41,
1,
40,
16,
-22,
-38,
4,
-38,
33,
17,
-45,
-27,
-2,
6,
11,
9,
-34,
-14,
-39,
2,
-26,
-3,
-53,
-8,
22,
37,
-10,
16,
-77,
-38,
-31,
-15,
8,
30,
-24,
-37,
-10,
-24,
-4,
-13,
8,
19,
-15,
0,
51,
-28,
51,
-17,
10,
24,
31,
49,
27,
-16,
-44,
10,
-48,
-12,
30,
-19,
-67,
-52,
43,
12,
-65,
-62,
-31,
-36,
0,
-8,
-25,
-59,
-6,
7,
-4,
30,
25,
-9,
-5,
49,
-25,
0,
38,
-12,
7,
-17,
0,
-3,
2,
8,
-28,
-19,
-18,
38,
-43,
46,
-11,
27,
-38,
-15,
-14,
1,
49,
28,
52,
-32,
-5,
42,
18,
38,
-45,
13,
20,
-10,
-24,
-43,
-54,
-44,
-22,
-24,
22,
-44,
13,
29,
5,
-22,
12,
-26,
-35,
-9,
-4,
-16,
25,
13,
0,
25,
16,
-18,
2,
-18,
-8,
10,
4,
7,
-10,
-27,
2,
23,
60,
7,
103,
-3,
-7,
78,
-19,
13,
32,
13,
24,
-4,
-37,
-3,
-39,
-7,
0,
6,
75,
18,
-42,
-1,
12,
-23,
-46,
15,
32,
-85,
13,
17,
55,
0,
-1,
-8,
29,
37,
82,
10,
34,
-27,
-20,
-29,
70,
-19,
-25,
0,
-6,
53,
-25,
-18,
52,
20,
-4,
33,
-18,
0,
-14,
65,
-2,
33,
-28,
-4,
33,
10,
38,
63,
4,
58,
-21,
-4,
-26,
13,
35,
17,
-1,
-1,
20,
-15,
-18,
15,
-2,
-2,
-16,
-20,
-26,
-7,
23,
18,
30,
13,
3,
20,
34,
46,
30,
1,
-46,
-14,
-9,
32,
-13,
29,
-2,
1,
-28,
8,
21,
-1,
-25,
12,
-38,
-38,
-34,
-25,
40,
10,
-35,
-22,
49,
-35,
16,
31,
57,
-29,
3,
23,
14,
-32,
68,
-16,
-12,
39,
54,
-8,
27,
-28,
0,
-5,
-61,
-73,
-5,
-35,
90,
11,
27,
-11,
-24,
9,
-41,
-43,
12,
-17,
14,
35,
-24,
-40,
9,
-35,
66,
-3,
-35,
-5,
-41,
-71,
37,
-12,
-2,
-39,
-13,
11,
34,
14,
-5,
-16,
6,
-10,
-7,
-18,
-39,
-8,
22,
18,
2,
-34,
-25,
-12,
-4,
22,
19,
-50,
15,
-25,
-30,
-55,
-13,
6,
-59,
-5,
-34,
-44,
-67,
-13,
36,
8,
-4,
15,
-26,
9,
-46,
-16,
5,
-2,
-50,
0,
66,
36,
29,
-20,
-26,
8,
-28,
33,
-61,
19,
-15,
-21,
-2,
16,
-16,
4,
37,
-57,
8,
2,
45,
18,
16,
-6,
-1,
-47,
0,
-18,
-39,
-15,
-41,
17,
-1,
-9,
1,
15,
9,
20,
39,
57,
-37,
-1,
-2,
3,
-11,
32,
-2,
-26,
48,
-44,
-4,
-63,
-27,
33,
5,
-21,
4,
-15,
21,
-28,
0,
-63,
6,
-2,
-48,
27,
-3,
-48,
5,
12,
1,
29,
55,
-35,
6,
19,
-9,
2,
-22,
39,
18,
-12,
43,
-25,
0,
-18,
33,
11,
-9,
19,
-24,
6,
7,
-11,
22,
51,
5,
-9,
4,
-18,
-44,
-43,
-18,
-12,
12,
20,
29,
36,
-21,
-46,
4,
-9,
-18,
-20,
-30,
-34,
4,
-8,
14,
-7,
-20,
-5,
10,
-19,
3,
-36,
15,
-45,
18,
24,
63,
17,
55,
70,
13,
36,
-41,
20,
-16,
-42,
-40,
2,
5,
-46,
60,
17,
34,
-4,
25,
-38,
18,
-54,
-8,
11,
6,
9,
-42,
-2,
-20,
-38,
-15,
-50,
16,
12,
-26,
-19,
-35,
5,
17,
-50,
25,
-15,
37,
36,
-4,
-40,
13,
-16,
49,
-12,
6,
-40,
-57,
-12,
2,
-38,
65,
3,
30,
-39,
2,
25,
-35,
-47,
39,
-29,
-31,
-30,
25,
9,
-58,
27,
-6,
10,
-8,
53,
-3,
-8,
-43,
-12,
29,
64,
23,
-49,
-3,
-14,
30,
10,
-14,
-19,
28,
7,
-30,
-46,
75,
19,
-6,
50,
0,
-9,
-12,
25,
16,
-57,
0,
30,
28,
-55,
23,
66,
-50,
6,
26,
15,
-57,
5,
15,
-30,
5,
-33,
11,
-20,
2,
-56,
82,
48,
-3,
-22,
42,
-13,
-41,
42,
23,
-26,
4,
-8,
-48,
19,
10,
14,
-50,
42,
-7,
-34,
4,
39,
-8,
-4,
-24,
-5,
13,
-5,
-49,
11,
-20,
3,
3,
1,
18,
17,
-23,
-4,
-29,
66,
-12,
42,
27,
-38,
-27,
-64,
10,
-24,
-12,
-8,
31,
78,
14,
-7,
-8,
32,
14,
-6,
23,
-31,
-31,
-15,
16,
-16,
-2,
-23,
33,
13,
18,
-22,
-38,
16,
-9,
10,
-24,
26,
10,
73,
-46,
15,
-24,
-5,
33,
24,
1,
-26,
26,
-2,
-17,
8,
42,
-19,
11,
-10,
16,
-11,
-10,
57,
12,
34,
-18,
58,
-25,
29,
13,
-14,
22,
34,
-37,
-42,
-28,
-4,
24,
-40,
-25,
70,
16,
13,
4,
-24,
24,
-40,
-1,
-36,
17,
69,
34,
-9,
15,
-25,
-4,
25,
-2,
36,
3,
-74,
-37,
19,
43,
14,
28,
-21,
14,
18,
-17,
2,
-41,
-3,
-27,
15,
10,
-2,
6,
-26,
-35,
12,
5,
16,
-41,
-22,
22,
-22,
-31,
-3,
19,
-14,
11,
7,
-13,
-6,
27,
-21
] |
Per Curiam.
' On application of J. B. C. Knight, Esq., counsel for the appellant Tillie Peterson, and pursuant to written stipulation entered into by him and by H. J. Dwyer, Esq., counsel for the respondent Lenora Reid, both filed in the office of the clerk of this court on January 17, 1952, this appeal is ordered dismissed with prejudice for the reason that the action has been fully settled upon its merits.
|
[
-54,
3,
41,
-34,
3,
12,
48,
5,
4,
-29,
-31,
-10,
-36,
7,
-38,
26,
-14,
-20,
-2,
-41,
-21,
41,
-23,
-45,
-2,
13,
42,
34,
85,
-18,
16,
57,
-10,
47,
30,
-29,
1,
31,
23,
68,
28,
-11,
21,
10,
1,
-10,
37,
-23,
-2,
-8,
16,
40,
-19,
-16,
-75,
16,
-11,
-13,
5,
9,
-10,
19,
-12,
69,
1,
-31,
44,
-47,
0,
-9,
45,
-19,
11,
-8,
53,
-32,
-47,
-53,
-16,
40,
23,
60,
5,
12,
-41,
8,
29,
48,
-8,
43,
-45,
12,
16,
-19,
-83,
52,
0,
-28,
5,
25,
-18,
-5,
51,
2,
-4,
-35,
-1,
17,
0,
49,
5,
36,
5,
-7,
-3,
-4,
16,
15,
40,
-14,
-5,
58,
10,
30,
3,
-1,
-25,
20,
50,
-6,
-19,
7,
28,
-2,
7,
12,
58,
-16,
55,
-44,
-7,
94,
-74,
-54,
-3,
-26,
-37,
-17,
-45,
-4,
-45,
34,
29,
12,
10,
-44,
1,
-42,
71,
-30,
-72,
-70,
27,
-34,
43,
-18,
-14,
-53,
-3,
25,
4,
-4,
-13,
-2,
-35,
-12,
17,
4,
-8,
64,
31,
24,
57,
-36,
-66,
-29,
-63,
-15,
0,
25,
-19,
-45,
8,
30,
26,
-2,
-55,
-17,
22,
9,
-31,
-15,
-43,
6,
-27,
26,
6,
-64,
33,
-16,
30,
-87,
5,
-47,
16,
34,
-3,
4,
-11,
61,
57,
-32,
11,
18,
-46,
10,
-10,
7,
-27,
-12,
-2,
10,
-37,
-9,
24,
-27,
-3,
59,
-24,
7,
-54,
19,
20,
11,
-1,
8,
0,
56,
103,
26,
90,
-4,
48,
-21,
49,
7,
-3,
29,
51,
0,
-22,
15,
-24,
-27,
-22,
37,
28,
32,
17,
-35,
41,
30,
78,
61,
8,
-64,
-6,
-41,
37,
10,
-63,
-21,
1,
-111,
14,
-29,
-36,
-70,
2,
-11,
-14,
35,
47,
-21,
82,
-44,
-49,
21,
-58,
-17,
-26,
22,
-50,
-23,
15,
-33,
-5,
-42,
62,
-8,
-62,
22,
62,
-60,
-56,
49,
-39,
-17,
53,
-40,
11,
1,
-118,
69,
-18,
-12,
-52,
55,
14,
27,
55,
-17,
-52,
-2,
-40,
40,
30,
55,
11,
26,
47,
10,
-36,
-3,
-40,
-48,
41,
-31,
19,
41,
-61,
-16,
-18,
-15,
-11,
-33,
33,
-20,
-51,
0,
4,
33,
35,
-23,
6,
-15,
34,
7,
5,
24,
-4,
22,
-46,
-30,
-22,
34,
1,
-11,
14,
61,
32,
-64,
57,
32,
-19,
34,
9,
74,
8,
-54,
-41,
19,
19,
0,
-23,
-5,
-19,
30,
-27,
43,
34,
30,
-23,
41,
18,
-23,
13,
15,
8,
53,
-63,
-16,
22,
37,
49,
41,
-15,
30,
-9,
22,
16,
25,
35,
31,
-88,
24,
43,
-33,
-14,
-25,
12,
8,
36,
34,
-10,
43,
26,
5,
6,
46,
27,
21,
38,
37,
-61,
56,
-61,
3,
25,
-61,
59,
-30,
17,
-12,
-8,
-14,
2,
66,
-43,
45,
6,
40,
-4,
-32,
-4,
-11,
58,
18,
-17,
34,
-16,
20,
1,
-11,
-8,
-5,
-7,
-19,
-15,
14,
28,
27,
18,
-16,
3,
-58,
10,
-30,
11,
0,
30,
-19,
-87,
24,
-44,
-36,
-26,
-38,
-79,
-28,
-21,
-38,
35,
6,
39,
-32,
11,
-30,
-22,
-45,
-11,
-33,
17,
17,
-27,
28,
56,
-17,
-41,
22,
-37,
37,
-60,
64,
21,
2,
46,
-16,
14,
51,
-18,
26,
-40,
14,
40,
12,
5,
0,
71,
2,
8,
-37,
-12,
31,
3,
38,
46,
25,
55,
2,
3,
-30,
-34,
47,
16,
18,
-56,
-25,
-11,
-47,
-18,
50,
7,
34,
47,
57,
-1,
7,
6,
3,
-10,
0,
-14,
28,
6,
9,
48,
-19,
-27,
-3,
36,
-26,
-47,
39,
-43,
-44,
18,
-40,
-49,
2,
-29,
-50,
-4,
-39,
-8,
-76,
-7,
23,
2,
-37,
-76,
-25,
7,
-11,
3,
14,
-73,
40,
-14,
-46,
18,
43,
-54,
0,
-34,
-92,
-2,
21,
10,
-51,
-38,
15,
13,
-29,
24,
49,
-82,
-2,
80,
12,
52,
16,
23,
-46,
-24,
39,
-29,
45,
-11,
-60,
-35,
26,
30,
24,
3,
-43,
0,
-27,
45,
16,
25,
29,
-16,
-42,
-48,
-60,
-53,
-39,
-36,
0,
-63,
-82,
-72,
-61,
-51,
35,
-40,
35,
-29,
-3,
24,
24,
1,
38,
30,
-8,
37,
35,
-24,
-8,
52,
-58,
-33,
-25,
42,
-36,
-11,
-55,
-59,
44,
-1,
-13,
-23,
-45,
-44,
-8,
-6,
15,
10,
23,
46,
-20,
27,
-10,
-28,
-26,
-36,
-1,
-38,
-24,
-13,
5,
-66,
-45,
45,
43,
-73,
-19,
70,
1,
14,
-11,
3,
-30,
-5,
-30,
-10,
-23,
28,
11,
51,
-20,
30,
0,
-39,
-29,
-9,
-30,
11,
8,
-32,
-10,
2,
7,
-35,
-50,
-10,
-1,
-43,
12,
23,
-51,
-35,
39,
-27,
-27,
32,
-30,
21,
-7,
-40,
32,
8,
48,
71,
37,
-1,
-16,
-84,
29,
-27,
6,
20,
24,
-25,
-44,
-11,
57,
96,
27,
-7,
-56,
-59,
11,
37,
100,
12,
-83,
16,
0,
-45,
-13,
13,
-33,
32,
-18,
-52,
-42,
-6,
-22,
-5,
3,
8,
-19,
-24,
55,
-41,
62,
-61,
55,
1,
6,
-51,
-38,
-42,
46,
58,
-14,
-1,
-33,
-10,
-19,
4,
61,
64,
-18,
23,
-9,
33,
10,
2,
0,
-29,
80,
-23,
26,
-20,
13,
6,
60,
-7,
-4,
-33,
51,
119,
30,
-25,
69,
21,
-101,
-30,
4,
19,
27,
-11,
-46,
-5,
-58,
14,
-39,
34,
7,
-20,
-49,
-26,
0,
-6,
-5,
30,
-25,
-37,
-4,
39,
40,
-22,
-4,
24,
-24,
21,
21,
7,
39,
-56,
2,
-21,
-4,
-14,
-30,
-16,
-88,
54,
58,
-13,
9,
60,
22,
49,
-7,
0,
6,
-55,
13,
66,
-8,
-16,
6,
-25,
23,
15,
-39,
-31,
-60,
2,
49,
78,
10,
-54,
-26,
-1,
41,
64,
32,
-17,
-11,
-16,
16,
38,
-2,
-22,
3,
6,
0,
-24,
11,
-65,
17,
-47,
-58,
-56,
13,
-39,
-43,
29,
-52,
34,
40,
10,
-28,
26,
8,
-14,
-43,
0,
40,
-18,
-15,
28,
24,
40,
31,
-26,
17,
-29,
17,
-83,
-55,
16,
47,
50,
49,
-27,
-4,
17,
22,
-49,
-17,
44,
-19,
-34,
-31,
40,
-14,
0,
39,
-52,
13,
31,
-6,
40,
7,
36,
15,
0,
-78,
24,
8,
-6,
-13,
31,
9,
-22,
36,
39,
5,
-1,
57,
72,
23,
-45,
20,
38,
-1,
9,
38,
43,
-19,
38,
-19,
-14,
-26,
0,
46,
6,
-58
] |
Per Curiam.
The relator, Leslie Hudson an inmate of the State Prison, has petitioned this court for a writ of error to review certain rulings of the district court wherein he was convicted, but from which rulings and judgment of conviction therein rendered he took no appeal within the time allowed by statute.
Accordingly this court is without jurisdiction to review the rulings and alleged errors of which relator complains and the writ is denied and the proceeding ordered dismissed.
|
[
5,
-32,
1,
2,
12,
-73,
44,
-18,
-53,
31,
-20,
-32,
-37,
1,
-9,
-38,
50,
60,
-20,
17,
19,
13,
25,
91,
-36,
-23,
24,
65,
30,
32,
22,
-48,
-65,
6,
12,
-29,
-18,
-51,
0,
-23,
-16,
-34,
-9,
4,
-31,
-31,
61,
88,
25,
-29,
-12,
-8,
-13,
33,
-12,
2,
38,
-63,
-29,
0,
10,
9,
-20,
-41,
1,
-31,
-42,
3,
-15,
65,
55,
-12,
25,
-23,
-10,
-26,
-2,
-33,
53,
53,
10,
39,
-44,
45,
-41,
-17,
-4,
-12,
-14,
8,
-11,
-19,
-47,
-11,
-45,
57,
-6,
-74,
-10,
-20,
-15,
36,
5,
35,
-20,
-4,
-14,
-8,
7,
25,
-26,
55,
-26,
15,
-20,
1,
-13,
-70,
15,
-37,
-24,
22,
29,
10,
54,
-9,
-10,
58,
71,
4,
-8,
26,
46,
21,
-44,
-3,
13,
14,
22,
-39,
-28,
-62,
57,
2,
30,
16,
33,
-4,
-45,
13,
12,
19,
-16,
80,
-14,
24,
-20,
-11,
-20,
40,
71,
-12,
-67,
45,
48,
17,
-44,
-10,
3,
-31,
-9,
20,
-14,
71,
-59,
-12,
-82,
20,
26,
3,
14,
53,
-13,
-14,
20,
-23,
30,
-48,
-72,
-30,
0,
23,
-18,
41,
65,
-6,
21,
26,
79,
-10,
-80,
44,
21,
21,
16,
-30,
-46,
-9,
4,
-31,
6,
-55,
-14,
-27,
27,
-26,
34,
15,
-18,
82,
0,
29,
6,
-10,
11,
-30,
21,
38,
-16,
-9,
23,
1,
-21,
24,
35,
14,
67,
16,
7,
51,
-31,
65,
39,
9,
34,
-57,
-8,
61,
-14,
30,
14,
13,
36,
-34,
-27,
-18,
38,
5,
0,
-33,
2,
-8,
-18,
-50,
-32,
12,
1,
7,
-1,
-1,
-1,
-24,
-38,
-33,
31,
16,
5,
31,
13,
-36,
-19,
0,
51,
22,
-24,
-10,
21,
-18,
20,
-7,
24,
-3,
41,
-27,
29,
13,
27,
-20,
-64,
-9,
-40,
-20,
10,
-16,
12,
-11,
32,
3,
-22,
-62,
14,
20,
-9,
32,
-15,
37,
-5,
0,
38,
-68,
-35,
22,
-42,
-63,
42,
-18,
19,
-5,
47,
15,
7,
31,
0,
41,
24,
65,
-10,
86,
-3,
23,
8,
36,
-50,
-14,
-19,
-2,
17,
15,
8,
37,
-17,
-55,
2,
-20,
-18,
22,
-24,
-53,
-47,
-34,
23,
18,
-2,
-36,
9,
-13,
-26,
17,
52,
12,
37,
-43,
2,
-72,
60,
7,
67,
-8,
43,
24,
-12,
-51,
13,
-4,
-19,
24,
-38,
-29,
28,
-36,
-61,
-20,
-24,
-40,
-30,
0,
29,
39,
13,
9,
37,
-18,
-4,
72,
8,
-46,
-23,
57,
-33,
-3,
7,
44,
21,
10,
3,
21,
11,
2,
49,
-70,
14,
-37,
25,
-17,
-4,
10,
-10,
3,
33,
-3,
8,
-51,
-50,
-1,
1,
17,
-56,
-21,
30,
33,
21,
40,
37,
-27,
11,
-16,
19,
-18,
-26,
-11,
3,
-12,
2,
-75,
-15,
3,
23,
46,
-29,
-24,
-35,
-22,
-33,
57,
27,
-34,
15,
-33,
-7,
15,
-42,
32,
-43,
56,
-38,
-2,
-35,
-14,
59,
31,
0,
-30,
-43,
-21,
13,
8,
35,
-19,
-16,
13,
-46,
-27,
67,
-11,
-18,
-29,
-32,
26,
-28,
19,
-15,
41,
-33,
17,
50,
-5,
-38,
-12,
73,
18,
21,
-16,
48,
25,
10,
17,
31,
-72,
45,
-3,
-33,
19,
24,
-25,
-53,
-21,
-76,
-10,
-27,
-10,
18,
-72,
-49,
-6,
-4,
-22,
16,
-27,
-23,
20,
13,
29,
-13,
8,
30,
47,
4,
25,
-10,
39,
-22,
32,
12,
-36,
-4,
-52,
0,
8,
27,
-23,
27,
11,
-21,
48,
6,
37,
-14,
-11,
33,
-3,
29,
-32,
-20,
-24,
2,
-61,
-2,
-29,
62,
-22,
17,
32,
-3,
-74,
-42,
-49,
-22,
-53,
-5,
36,
-88,
-30,
0,
-15,
-6,
0,
-73,
-67,
49,
44,
-34,
30,
37,
34,
39,
18,
29,
-12,
-46,
1,
36,
5,
-34,
41,
-75,
25,
-24,
24,
-26,
5,
-3,
6,
-26,
30,
-25,
-46,
-28,
-92,
-38,
9,
-18,
56,
28,
-3,
-28,
34,
-18,
19,
-19,
9,
16,
34,
6,
-52,
12,
26,
80,
2,
13,
12,
53,
35,
-22,
29,
-14,
-27,
-2,
-37,
9,
33,
-56,
14,
-68,
10,
49,
21,
-31,
-24,
-22,
27,
20,
-12,
0,
-23,
-26,
9,
-3,
-15,
-23,
-19,
-4,
-42,
0,
27,
44,
-42,
-53,
30,
-2,
45,
-21,
-34,
54,
36,
34,
17,
-11,
-22,
-16,
15,
-11,
-52,
48,
25,
-46,
-19,
21,
-30,
-13,
-45,
-20,
-3,
-33,
36,
-4,
-50,
-20,
-35,
-34,
4,
-5,
-15,
1,
34,
-13,
-31,
30,
5,
50,
11,
-3,
3,
31,
28,
-28,
-48,
-58,
-49,
8,
-32,
10,
20,
-23,
-9,
-69,
-47,
17,
-10,
5,
17,
50,
13,
-70,
34,
-58,
-11,
32,
-77,
2,
3,
6,
-16,
10,
-22,
-58,
30,
-40,
-56,
1,
56,
22,
-10,
-22,
-13,
-36,
62,
19,
28,
41,
14,
-60,
46,
-16,
43,
22,
31,
-46,
-62,
-22,
-50,
13,
38,
-56,
22,
8,
-19,
19,
74,
16,
63,
49,
-30,
35,
-31,
42,
2,
-16,
-2,
4,
95,
12,
-4,
-53,
67,
33,
-4,
47,
1,
42,
-23,
29,
0,
55,
37,
35,
28,
23,
-9,
6,
67,
5,
-15,
11,
75,
-19,
-29,
29,
3,
-9,
-49,
9,
34,
28,
-8,
0,
-10,
-12,
-27,
-24,
38,
20,
7,
-4,
28,
-1,
-31,
49,
-53,
-11,
7,
-14,
-4,
31,
-48,
-18,
16,
-12,
-38,
-18,
30,
5,
11,
43,
30,
7,
0,
26,
7,
6,
18,
-5,
17,
14,
25,
18,
-33,
-27,
-69,
-49,
-29,
-4,
25,
-1,
13,
6,
-7,
-4,
-47,
-58,
-11,
24,
24,
30,
26,
0,
-7,
-56,
-8,
73,
6,
-8,
-9,
0,
10,
6,
14,
-29,
23,
-27,
-40,
-48,
72,
54,
-5,
19,
-4,
41,
-18,
-15,
31,
17,
-17,
-36,
-14,
-36,
-46,
36,
18,
-13,
-4,
-26,
-52,
28,
28,
-13,
-2,
0,
-39,
0,
7,
-11,
16,
-16,
25,
-45,
-9,
53,
15,
14,
7,
-53,
28,
-68,
43,
-75,
12,
32,
1,
-1,
-11,
-34,
25,
50,
32,
5,
-1,
-19,
-18,
-27,
45,
-29,
-61,
-51,
2,
-50,
-58,
6,
6,
-16,
2,
14,
13,
12,
4,
78,
13,
37,
-16,
5,
5,
-1,
-1,
-10,
-31,
1,
35,
-22,
-6,
-40,
24,
45,
6,
58,
-11,
-3,
6,
-38,
-3,
16,
8,
-38,
-2,
55,
-63
] |
MR. JUSTICE BOTTOMLY:
This is an appeal from a decree and judgment permanently enjoining the defendants, Pearl C. Love, P. T. Hacker, William Armitage, Stanton Frisbie and John Jenkins, as trustees of School District No. 52, Madison county, Montana, and also as trustees of High School District No. 52, Madison county, Montana, and John C. Tolson, as clerk of both boards of trustees, from becoming indebted in a sum greater than the constitutional limit of three per centum of the value of the taxable property in School District No. 52 and the purported Ennis High School District, viewing the two districts as a single taxing unit within the prohibition of section 6, Article XIII of the state Constitution and section 75-3902, R. C. M. 1947, from selling, offering for sale or delivering any bonds of the district in excess of such constitutional limit.
School District No. 52, Madison county, regularly organized under the school laws of this state, has maintained at Ennis a grade school and a fully accredited high school covering the full four years’ course of study since at least the year 1921, totaling in all a complete twelve full years of instruction upon a fully accredited basis. At the times herein mentioned School District No. 52 had no grade or elementary school indebtedness, but the indebtedness for its high school amounted to $22,553.91. The value of the taxable property of the district was $4,267,362.
The district was desirous of constructing and equipping an elementary school estimated to cost $115,000, and in addition required an estimated $37,000 for the constructing and equipping of one multipurpose room to be used by the high school and one boiler room, both to be erected in conjunction with the elementary school. The two amounts total $152,000. Considering school district No. 52 and high school district No. 52 as one taxing unit, the constitutional limitation of 3% of the value of the taxable property would yield only $128,020.80, and consequently the proposed indebtedness would be some $46,533.00 in excess of the then constitutional limit.
At the time of the Third Constitutional Convention in 1889 and the drafting of our Constitution, our public school system was. well outlined and established. The framers of our Constitution were well advised of the schools provided and of the function of the school district as the taxing unit.
Under the school law of 1879, Rev. Stat. 1879, Ch. LV, sec. 1132, the territorial legislature, after providing for the school districts, further provided for the high school as follows: “Whenever the interests of the districts require it, the board of trustees may establish a high school, employ a principal teacher and subordinate teachers, and grade the school into departments and classes,” both to be financed through the single taxing unit of the school district as established.
A reading of the statutory provisions for public schools, prior to and at the time of the adopting of our Constitution and of the work of the committees and the debates in the convention and the Constitution itself, clearly indicates the large amount of work and thought that was given to the subject of free public schools — districts had been established, provision made for the election of trustees, their duties, separate school elections, the grades, departments and the subjects to be taught, and where deemed necessary such district could establish a high school, and all through such history of the development of the public school system the school district was known as the only taxing1 unit for the support of such schools. No separate unit for taxation or otherwise was known as a high school district.
At the time of the drafting of section 6 of Article XIII there was no example or conception of any additional taxing unit to be superimposed on the school district as then known, nor could they have had any such condition in mind, as their debates clearly demonstrate that they were alert in seeing to it that a .definite limit of indebtedness was imposed for each taxing unit of government.
The provisions of the Constitution are to be construed in the light of conditions as they existed at the time of its adoption. State ex rel. Bottomly v. District Court, 73 Mont. 541, 547, 237 Pac. 525; State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589.
Knowing that there was only one kind of public school district and that such district could provide all schooling from the first grade to and including a high school, the Constitutional Convention declared in clear and unmistakable language, that all could understand, a safeguard and protection for the taxpayer against the overenthusiastic impulse to saddle an unreasonable and intolerable tax burden on the property of a school district by declaring that no school district shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding “three (3) per centum of the value of the taxable property therein * *' *.” The intent and purpose of this provision is so specific, unambiguous and clear that it needs no interpretation. To leave no doubt, they further solemnly declared: “® * >:i all bonds or obligations in excess of such amount given by or on behalf of such * * school district shall be void”. Mont. Const., Art. XIII, sec. 6, supra. Emphasis supplied.
The framers of our Constitution further provided that the public schools shall be open to all children and youth between the ages of six and 21 years. Mont. Const. Art. XI, sec 7.
The provisions of our Constitution are mandatory and prohibitory. Mont. Const., Art. III, sec. 29.
We are here considering the fundamental, basic and substantive law of our state.
It is the duty and responsibility of this court to ascertain the meaning of the Constitution as written, neither to add to nor to subtract from, neither to delete nor to distort.
Obviously, the only purpose of a school district is to designate a certain territory within which a public school or schools may be established and maintained. The school laws of this state have always clearly contemplated the establishment of a school or schools, high schools as well as grade schools, within the district as being essential to the very existence of the district itself. The kind of school that is thus contemplated is spoken of in the laws upon the subject as a “public school,” or “public schools.” Such a school is a school established and maintained at public expense and comprising the elementary grades, and when established, the grades of high school work.
In accordance therewith, a high school, when established, becomes an integral part of the public school system in that particular district. It is under the jurisdiction of the same board of trustees as the elementary grades or any other department of the public school system existing in that particular “school district,” and financed and maintained by taxation on the property lying and being within the exterior boundaries of that particular school district. This was the law of this state prior to and at the time of the wi’iting of our Constitution in regard to public schools and “school districts,” and it is still the law of this jurisdiction.
The framers of our Constitution specifically designated and provided for the various public taxing units or districts for the state, the county, the city, the town, the township, and the school district; no mention is made of a high school district as a separate taxing unit, for the very good reason that by law any “school district” could establish a high school, as a part of the school district taxing unit.
The argument of need, necessity, hardship or inconvenience, cannot avail in the interpretation of the constitutional mandate relative to the limitations placed upon the power of school districts to contract indebtedness. The rule of strict construction must be applied, and any doubt as to such power must be resolved against it. If this court is to be controlled in the interpretation of the Constitution by considerations outside its provisions, there would be very few, if any, provisions of it which would not be rendered nugatory. See: Butler v. Andrus, 35 Mont. 575, 90 Pac. 785; State ex rel. Helena Waterworks Co. v. City of Helena, 24 Mont. 521, 63 Pac. 99, 55 L. R. A. 336, 81 Am. St. Rep. 453; 1 Abbott on Municipal Corporations, sec. 151, p. 324; 15 McQuillin, Municipal Corporations, sec. 39.07, p. 14, sec. 41.11, pp. 323, 324.
It is also crystal clear that there is no provision in the Constitution authorizing the legislature in regard to school districts to extend the limit therein fixed as it allowed for cities and towns in providing sewage systems or to procure a water supply. The constitutional provision curbs equally the power of the legislature, the officials and the people themselves, and was designed to protect the taxpayer from the folly and improvidence of either, or of all combined.
In the absence of constitutional limitations, the legislature may create or abandon a district, or it may change the boundaries of districts, or create joint districts. The legislature, however, may not enlarge the power of a school district to create a debt beyond the limitations imposed by section 6 of Article XIII of the Constitution.
In this case the indebtedness proposed to be incurred, at that time, with the existing indebtedness, exceeded the constitutional limit of three per cent. Under the then limit fixed by our Constitution, this could not be done “in any manner or for any purpose” to an amount in the aggregate of three per cent.
The high school district attempted to be created under Chapter 275, Laws of 1947, has no authority to operate and manage a high school; but its sole purported function is to borrow money for the purpose of construction, repair, improvement and equipment purposes only, all of which purposes and powers have heretofore been conferred upon and exercised by the board of trustees of every school district in which grade and high schools have been established. All of such purposes and powers granted by Chapter 275 were and had been exercised by the board of trustees of school district No. 52 prior to the action creating high school district No. 52. The only effect of the attempted creation of high school district No. 52 was to divide the powers already exercised by school district No. 52 and an attempt to expand the constitutional limit of indebtedness by the pyramiding of another tax unit upon the identical property and taxpayers of school district No. 52. Contravening section 6 of Article XIII as it does, Chapter 275, Laws of 1947, R. C. M. 1947, secs. 75-4601 to 75-4606, is unconstitutional and is invalid.
The people of any school district and of district No. 52 may spend whatever sum.of money is necessary in the maintenance of their public schools in accordance with statute, so long as they do not create an indebtedness in excess of the limit set by section 6 of Article XIII and thereby pass on an obligation to the coming generations beyond the limit provided.
Section 6 of Article XIII is a limitation of indebtedness as distinguished from a limitation of the amount that may be raised by taxation to serve the necessary current expenses of the district. It is a laudable endeavor for people to desire to sacrifice in providing the facilities and opportunities of a good public school system of education for their children. It is true that under the conditions of the past few years, the increase in pupil load, rising prices and costs of operation, school trustees have been hard pressed in their search for finances to keep pace with the growing demand. However, there is a legal and constitutional method of remedying this situation and that method is by amending the Constitution.
The injunctive decree entered July 25, 1950, was correct under the Constitution as it then read. However, the 1949 legislature, proceeding in the proper and constitutional manner set in motion the machinery whereby the constitutional limit of three per centum would be raised to five per centum. This was accomplished by the enactment of Chapter 193, Laws of 1949, and the submission thereof at the November 1950 election to the qualified electors of the state, of a proposed constitutional amendment to section 6 of Article XIII of our Constitution. The proposed amendment was adopted and on December 6, 1950, by proclamation of the Governor became operative and a part of our fundamental law, which now provides: “No * '* * school district shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum (5%) of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness, and all bonds or obligations in excess of such amount given by or on behalf of such * * * school district shall be void.”
Thereafter, to make the statute conform with the foregoing constitutional amendment, the legislature by the enactment of Chapter 65, Laws of 1951, amended section 75-3902, R. C. M. 1947, which amendment does not become effective until July 1, 1951.
The trial court’s injunctive order continues in full force and effect and virtue until July 1, 1951, the effective date of Chapter 65, Laws of 1951, on which date it becomes inoperative by virtue of the above mentioned subsequent enacted legislation, of which school district No. 52, Madison county, Montana, being the taxing unit, may then take full advantage and proceed within the limits and prohibition of the Constitution and statutes, as amended.
The majority decision in House v. School District No. 4 of Park County, 120 Mont. 319, 184 Pac. (2d) 285, is expressly overruled, and we call attention to the fact that the rights of parties who have heretofore entered into contracts and the validity of the bonds that have been sold in reliance upon this court’s decision in the House Case, supra, are in no way affected by this decision, and are to be determined in accordance with the well established rule as set forth in the following cases: Gelpcke v. City of Dubuque, 1 Wall. 175, 68 U. S. 175, 17 L. Ed. 520; Havemeyer v. Iowa County, 3 Wall. 294, 70 U. S. 294, 18 L. Ed. 38; Douglass v. Pike Co., 101 U. S. 677, 25 L. Ed. 968; Township of New Buffalo v. Cambria Iron Co., 105 U. S. 73, 26 L. Ed. 1024; Tidal Oil Co. v. Flanagan, 263 U. S. 444, 451, 452, 44 S. Ct. 197, 68 L. Ed. 382; City of Los Angeles v. Los Angeles City Water Co., 177 U. S. 558, 20 S. Ct. 736, 44 L. Ed. 886; Levin v. Baltimore & O. R. Co., 179 Md. 125, 17 A. (2d) 101; Hoven v. McCarthy Bros. Co., 163 Minn. 339, 204 N. W. 29, 30; 7 R. C. L., Courts, sec. 36, p. 1010; 97 A. L. R. n. 11, p. 516; 15 McQuillin, Municipal Corporations, see. 41.11, p. 324.
The decree appealed from is affirmed, but as of July 1, 1951, the injunction order and writ become inoperative by reason of the amendment of the Constitution and statute, which become effective subsequent to the entry of the decree and issuance of the writ.
Bemittitur will issue forthwith.
MB. CHIEF JUSTICE ADAIB, and MB. JUSTICE FEEE-BOUBN, concur.
|
[
35,
12,
12,
13,
-4,
0,
60,
17,
-46,
34,
-29,
9,
17,
14,
9,
-19,
-28,
-42,
22,
11,
-14,
-40,
-34,
-19,
57,
0,
31,
21,
-59,
-19,
34,
-47,
-19,
-21,
-6,
59,
17,
11,
40,
-18,
12,
-14,
-35,
-28,
-9,
30,
14,
-15,
29,
46,
0,
-21,
46,
21,
18,
15,
-19,
7,
-61,
2,
-13,
18,
94,
-2,
25,
-63,
9,
-29,
4,
-83,
-33,
6,
13,
-8,
92,
-1,
-26,
-60,
-44,
31,
-35,
2,
-5,
-17,
-20,
-30,
-71,
-14,
7,
18,
-23,
2,
-24,
50,
33,
-44,
1,
-11,
18,
-2,
31,
-2,
-5,
41,
3,
-24,
-69,
28,
39,
53,
-3,
-23,
15,
-37,
-14,
0,
-41,
-30,
-7,
-2,
24,
37,
-6,
-9,
-2,
4,
-28,
10,
-4,
-18,
-17,
-9,
-18,
2,
-24,
21,
-14,
-19,
-14,
-10,
-10,
-18,
38,
-6,
-7,
-9,
7,
-40,
8,
-4,
-21,
17,
44,
32,
11,
-23,
10,
4,
9,
-35,
7,
-27,
2,
14,
7,
-4,
-1,
-15,
-2,
35,
2,
-11,
3,
40,
48,
52,
-8,
3,
19,
29,
-30,
-42,
23,
-35,
11,
0,
29,
-14,
-35,
25,
-19,
-1,
0,
-75,
-29,
-6,
26,
-6,
-58,
15,
2,
22,
30,
38,
30,
-9,
38,
22,
-8,
19,
-37,
-17,
16,
58,
-27,
21,
-68,
18,
42,
2,
12,
55,
-11,
27,
-6,
-22,
2,
48,
34,
-17,
-37,
5,
7,
-38,
15,
-7,
-83,
27,
0,
2,
-36,
-43,
-28,
-24,
22,
2,
-31,
-33,
-38,
25,
-22,
40,
-11,
22,
3,
51,
24,
0,
-33,
-43,
27,
-41,
14,
-6,
-28,
-18,
23,
-13,
5,
70,
-37,
31,
14,
28,
-7,
25,
29,
-61,
5,
-45,
13,
-21,
13,
46,
25,
30,
-24,
-6,
-11,
-64,
-16,
-32,
69,
-11,
69,
-45,
-7,
34,
0,
-8,
-65,
36,
22,
0,
20,
47,
0,
-36,
38,
6,
-16,
-3,
-27,
19,
12,
-38,
-39,
24,
-35,
14,
18,
-40,
-1,
23,
12,
-6,
49,
16,
-21,
-28,
61,
-48,
-9,
-10,
10,
-8,
21,
-42,
37,
-39,
64,
21,
40,
9,
-6,
16,
-40,
-17,
-24,
41,
53,
-21,
29,
41,
-21,
42,
30,
51,
7,
0,
32,
-19,
44,
-57,
-42,
-4,
-8,
-11,
29,
-12,
0,
-8,
58,
6,
48,
0,
-13,
29,
-17,
2,
-26,
-1,
-21,
-17,
54,
16,
72,
27,
29,
-34,
-13,
0,
-10,
16,
40,
-46,
23,
-23,
-17,
-32,
-36,
2,
30,
-25,
-38,
-30,
-59,
19,
24,
7,
26,
-43,
9,
-23,
21,
-13,
-7,
-17,
20,
19,
26,
31,
14,
29,
1,
-5,
3,
18,
-18,
10,
-9,
4,
-19,
14,
-21,
-27,
42,
12,
-20,
-40,
39,
41,
9,
-1,
0,
-32,
-7,
46,
18,
41,
-5,
6,
-29,
-21,
-42,
8,
-2,
-12,
35,
-51,
8,
23,
33,
36,
4,
29,
1,
-30,
-10,
26,
-26,
11,
-21,
-12,
66,
28,
8,
-29,
42,
-41,
26,
-14,
5,
-14,
1,
39,
-13,
1,
-55,
4,
13,
36,
-31,
-14,
10,
22,
21,
-70,
25,
13,
-31,
3,
23,
-49,
-32,
24,
-28,
-18,
-26,
13,
35,
-21,
40,
8,
-3,
45,
-23,
-7,
3,
31,
39,
48,
-12,
-36,
21,
50,
0,
15,
6,
-39,
-110,
44,
44,
26,
-29,
-7,
33,
41,
6,
-7,
16,
-20,
27,
51,
-40,
-20,
-25,
-15,
37,
-12,
60,
-19,
-47,
40,
-74,
-6,
-18,
-46,
-12,
21,
13,
-9,
-11,
-68,
-22,
24,
-75,
1,
-19,
-22,
19,
-35,
-17,
-5,
-11,
-37,
-25,
0,
-3,
35,
39,
8,
17,
-32,
10,
-20,
47,
61,
-27,
18,
-32,
-1,
-18,
39,
-18,
-49,
9,
54,
-44,
57,
-64,
-4,
44,
-25,
1,
-20,
-28,
26,
4,
-17,
23,
-14,
49,
22,
0,
-15,
-11,
-10,
19,
-86,
31,
-36,
15,
-54,
40,
25,
-46,
26,
-19,
9,
17,
24,
-47,
24,
-17,
-10,
-7,
34,
35,
13,
-22,
-24,
-39,
-23,
-19,
-32,
-14,
23,
13,
-25,
-7,
-43,
10,
-43,
-29,
49,
-24,
-19,
7,
-73,
32,
-14,
21,
23,
-22,
1,
30,
-14,
-13,
13,
-28,
-31,
-35,
-20,
29,
20,
-15,
-10,
14,
-50,
17,
2,
-46,
28,
12,
-6,
46,
5,
-40,
16,
52,
-27,
11,
10,
-66,
4,
10,
7,
-22,
24,
37,
-19,
-25,
20,
-42,
-2,
-14,
29,
-79,
21,
-40,
-8,
-17,
11,
-21,
-69,
47,
20,
-26,
-22,
23,
4,
-26,
21,
-7,
26,
76,
-48,
-25,
31,
-6,
24,
-39,
-16,
1,
29,
1,
-10,
72,
-7,
-9,
0,
-48,
18,
-21,
32,
-19,
-13,
-32,
13,
-25,
8,
30,
-34,
-39,
-48,
-52,
-14,
52,
33,
-2,
0,
-57,
48,
-10,
17,
4,
2,
-19,
-23,
63,
21,
-84,
-8,
46,
-9,
-51,
-4,
-18,
-2,
28,
9,
-74,
-25,
31,
-9,
-27,
53,
32,
13,
-26,
31,
71,
-42,
-56,
43,
-6,
15,
26,
-13,
-22,
35,
36,
62,
5,
-36,
3,
35,
-51,
51,
-88,
-19,
-52,
-40,
-15,
-1,
-19,
-21,
-53,
-11,
9,
17,
26,
61,
65,
49,
-10,
22,
-41,
12,
19,
4,
-4,
-59,
5,
-59,
-33,
-23,
-4,
-1,
4,
-23,
9,
-42,
-11,
0,
-29,
13,
14,
32,
-13,
30,
-29,
16,
27,
-57,
79,
5,
52,
65,
13,
-7,
-8,
87,
-35,
-20,
50,
2,
0,
68,
-2,
-21,
-18,
38,
22,
21,
6,
-21,
33,
-38,
-10,
36,
-10,
-24,
0,
18,
19,
-46,
42,
-25,
-15,
6,
-43,
22,
17,
-15,
-24,
-44,
-27,
-16,
13,
-19,
-13,
-34,
-14,
-37,
69,
26,
50,
5,
6,
16,
1,
-29,
-24,
18,
-47,
-50,
40,
22,
18,
-26,
-52,
27,
10,
0,
27,
-8,
-47,
52,
-10,
31,
-16,
-19,
-13,
9,
25,
5,
21,
-1,
23,
-7,
39,
2,
49,
43,
49,
-19,
13,
-46,
-11,
15,
9,
48,
-61,
51,
-48,
3,
11,
34,
-39,
43,
3,
1,
-9,
-7,
-38,
20,
-3,
-50,
-51,
24,
0,
49,
20,
10,
22,
-27,
43,
15,
46,
-22,
68,
42,
-3,
7,
2,
3,
-5,
-21,
21,
-25,
23,
-47,
27,
11,
-12,
-27,
16,
-33,
44,
-34,
-25,
-20,
-2,
-79,
48,
-28,
53,
-3,
-64,
-43,
-16,
-65,
17,
-22,
15,
9,
-6,
14,
31,
-4,
-24,
6
] |
MR. CHIEF JUSTICE ADAIR:
Original proceeding in habeas corpus.
By information filed in the district court of Gallatin county, Montana, the petitioner James Q. Anderson was accused with having committed the crime of felony in the exportation of a named girl for immoral purposes in that he, in said Gallatin county, did feloniously induce and entice her to go from the state of Montana for the purpose of living in concubinage with him contrary to the form, force and effect of the statute in such case, made and provided and against the peace and dignity of the state of Monatna.
The petitioner was taken into custody in the state of Nevada and brought from there to the state of Montana where he was placed in the Gallatin county jail at Bozeman wherein he has since been held as a prisoner to await, trial on the aforesaid charges.
The petitioner demurred to the information upon various grounds some of which challenge the jurisdiction of the state district- court. Upon the overruling of his demurrer the petitioner applied to this court for a writ of habeas corpus seeking release from his confinement. The writ issued and on the return day the sheriff of Gallatin county appeared before this court witli his prisoner, the petitioner, and the cause was heard by the court upon the prisoner’s petition and the state’s objections thereto.
In his petition the petitioner recites that he is an Indian ward of the Federal Government duly enrolled upon the tribal rolls of the Klamath tribe of Indians in the state of Oregon and, upon the filing of the petition, it was orally represented to this court that subsequent to the date charged in the information and prior to the filing thereof the petitioner and the girl whom he is charged to have exported and to have induced to go from Montana for the purpose of living with him in concubinage had intermarried in the state of Nevada.
The Constitution of the United States grants to Congress the power to regulate commerce with foreign nations and among the several states and with the Indian tribes. U. S. Const. art. I, sec. 8.
In 1910, pursuant to the Constitutional authority so. granted it, the Congress of the United States enacted the Federal White Slave Traffic Act, also commonly referred to as the Mann Act, 36 Stat. 825, 18 U. S. C. A. secs. 2421-2424, which Act makes the transportation of women or girls in interstate commerce in going to any place for the purpose of prostitution or debauchery or for any immoral purpose or the obtaining, aiding or inducing of such transportation, a federal offense and prescribes as the penalty therefor fine or imprisonment of not more than five years or both.
Some seven months after the Congress had entered the foregoing field of legislation by the enactment of the Mann Act, supra, the Twelfth Legislative Assembly of the state of Montana passed Chapter 1 of the Session Laws of 1911, which, on January 28, 1911, received the approval of the governor. The state Act contains twelve separately numbered sections. Sections numbered 1 to 9, both inclusive, assume to prohibit and make criminal certain enumerated acts and conduct and to separately prescribe in each section the separate penalty provided therefor, each section being a complete law unto itself wherein the offense is designated and the penalty attaching to its violation prescribed.
Section 1 of Chapter 1, Laws of 1911, assumes to prohibit “The importation of women and girls into this state or the exportation of women and girls from this state for immoral purposes ’ ’ and to punish as a felony those who violate its provisions including those who ! ‘ shall induce, entice, or procure, or attempt to induce, entice, or procure, to come in this state, or to go from this state, any woman or girl for the purpose of prostitution or concubinage, or for any other immoral purpose” and prescribing as a penalty a fine or imprisonment for a period of not less than two years nor more than twenty years or by both fine and imprisonment.
The instant proceeding is in no wise or manner concerned with the validity of the provisions of any section of Chapter 1, Laws of 1911, other than those of section 1 which section was reenacted as section 11008 of the Revised Codes of 1921 and 1935 and as section 94-4109 of the Revised Codes of 1947 being the specific statute under which the information against the petitioner was drawn.
The provisions of section 1 of Chapter 1, Laws of 1911, were first considered by this court in State v. Harper, 1914, 48 Mont. 456, 138 Pac. 495, 51 L. R. A., N. S., 157, 159, Ann. Cas. 1915D, 1017, wherein, this court held that since the Congress lias exclusive jurisdiction to regulate interstate commerce and since the transportation of passengers from one state to another is interstate commerce and since, by the Mann Act, the Congress has assumed to regulate the transportation of females from one state to another for immoral purposes, the state legislature had no power to enact a provision covering the same subject matter, and that therefore section 1 of Chapter 1, Laws of 1911, is inoperative and held that the district court of Park county properly sustained a demurrer to an information charging the defendant with a violation of section 1 of such act. There, as here, counsel for the state insisted that both the federal Act and the state Act remain in effect; that the jurisdiction over the offense named is concurrent in the federal and the state courts and that since the United States and the state are different sovereignties, the same Act may be an offense against both. In rejecting such contentions in the Harper case, supra [48 Mont. 456, 138 Pac. 498], this court said: “This might be true in some instances, but here we are confronted with the fact that, so far as the regulation of interstate commerce is concerned, the states have expressly surrendered the entire subject to the general government, and that, when the general government sees fit to exercise the powers delegated and surrendered to it by the states, the state is precluded from saying that the subject, or any matter connected therewith, is under the concurrent control of the two sovereignties.”
Here the legislature of the state of Montana remained silent on the subject of the importation of women and girls into this state or the exportation of women and girls from this state for immoral purposes until after the Congress had exerted its constitutional authority and passed the Mann Act, supra.
The Constitution of the United States 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 thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const. art. VI.
In 11 Am. Jur., Conflict of Laws, pp. 306-308, section 8, it is said: “The authority, of the United States Government is supreme in its cognizance of all subjects which the Constitution has committed to it. * * * A state law which contravenes a valid law of the United States is void. * * * The states * * * cannot invade a field which belongs exclusively to Congress. Likewise, where Congress has legislated upon a subject which is within its constitutional control and over which it has the right to assume exclusive jurisdiction and has manifested its intention to deal therewith in full, the authority of the states is necessarily excluded, and any state legislation on the subject is void. Moreover, the state has no right to interfere or, by way of complement to the legislation of Congress, to prescribe additional regulations and what they deem auxiliary provisions for the same purpose. ’ ’
The rule here applicable is that stated in 15 C. J. S., Commerce, sec. 126, page 490, viz.: “Congress has the power to make the transportation of women for immoral purposes in interstate commerce an offense. After congress has acted the states are without power to enact statutes covering the same subject matter.” This rule was applied in the Harper ease, supra, and it governs the case at bar.
Thus is the power of Congress to regulate interstate commerce and all its instrumentalities supreme. U. S. Const. art. VI. That power so far as it concerns the importation and exportation of women and girls for immoral purposes was exerted by the Congress in 1910 so that when the 1911 state legislative assembly thereafter assumed to enact section 1 of Chapter 1 of the Laws of 1911 on the identical subject and to prescribe a maximum imprisonment penalty four times greater than is provided in the Federal Act this state was then wholly without jurisdiction. Section 1 of Chapter 1, Laws of 1911 (now R. C. M. 1947, sec. 94-4109) being in contravention of a valid law of the United States, is wholly void. See 11 Am. Jur., Conflict of Laws, pages 307-308, sec. 8, notes 12 and 19; Prigg v. Pennsylvania, 16 Pet. 539, 617, 618, 41 U. S. 539, 617, 618, 10 L. Ed. 1060, 1089, 1090; Mondou v. New York, N. H. & H. R. Co. (Second Employers’ Liability Cases), 223 U. S. 1, 55, 32 S. Ct. 169, 56 L. Ed. 327, 348, 38 L. R. A., N. S., 44; Erie R. R. Co. v. New York, 233 U. S. 671, 683, 34 S. Ct. 756, 58 L. Ed. 1149, 1154, 52 L. R. A., N. S., 266; Ann. Cas. 1915D, 138; Southern Ry. Co. v. Railroad Commission, 236 U. S. 439, 35 S. Ct. 304, 59 L. Ed. 661; Charleston & W. C. R. Co. v. Varnville Furniture Co., 237 U. S. 597, 604, 35 S. Ct. 715, 59 L. Ed. 1137, 1140, Ann. Cas. 1916D, 333; Missouri Pac. R. Co. v. Porter, 273 U. S. 341, 346, 47 S. Ct. 383, 71 L. Ed. 672, 675.
“An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.” Ex parte Siebold, 100 U. S. 371, 376, 25 L. Ed. 717.
The statute under which the information was drawn being void, the information is wholly insufficient, fails to state a public offense and petitioner’s demurrer thereto should have been allowed. Consequently the petitioner, being held in custody as a prisoner on a warrant predicated on such information, is unlawfully restrained of his liberty and it is ordered that he be released and discharged from custody forthwith.
ASSOCIATE JUSTICES METCALF, BOTTOMLY, FREEBOURN and ANGSTMAN, concur.
|
[
45,
20,
-26,
50,
12,
-35,
-6,
3,
-27,
12,
-72,
7,
-36,
-58,
-6,
1,
-43,
-37,
66,
4,
0,
-19,
-50,
8,
10,
20,
16,
16,
-40,
23,
30,
48,
19,
-52,
32,
48,
88,
17,
25,
-49,
-57,
-2,
-77,
22,
-69,
70,
-47,
31,
22,
33,
-1,
-60,
16,
45,
8,
-19,
-2,
-47,
-34,
85,
-13,
-42,
56,
-39,
-6,
-24,
37,
21,
1,
-10,
49,
-37,
-4,
1,
40,
8,
-19,
-63,
16,
7,
-40,
13,
-25,
-29,
19,
0,
-92,
-31,
14,
23,
-14,
-14,
-15,
-25,
8,
-1,
-16,
17,
-21,
-15,
43,
-69,
-10,
-45,
52,
-19,
-102,
35,
72,
55,
23,
-3,
-46,
-56,
-7,
-37,
-3,
-23,
-4,
-25,
-10,
14,
-27,
38,
-64,
-59,
-28,
-5,
39,
22,
4,
-36,
-12,
-26,
-43,
36,
-4,
-35,
-3,
1,
12,
-45,
45,
10,
63,
-8,
18,
43,
-26,
-14,
4,
37,
-8,
-19,
26,
-25,
17,
69,
-18,
45,
2,
16,
35,
-49,
29,
31,
-29,
-50,
-25,
-1,
-53,
9,
-34,
19,
86,
37,
-68,
12,
-43,
3,
4,
23,
-13,
-30,
-56,
41,
-14,
43,
0,
-21,
-6,
10,
37,
1,
26,
58,
-4,
-66,
-28,
-8,
49,
6,
5,
50,
-50,
19,
45,
26,
48,
29,
-7,
-42,
-2,
32,
-8,
41,
-18,
-6,
0,
27,
39,
-25,
33,
50,
67,
-44,
38,
27,
-25,
-40,
18,
27,
10,
-39,
-16,
-62,
-57,
-35,
4,
15,
38,
-28,
0,
-45,
56,
19,
-56,
0,
-5,
5,
16,
-6,
-47,
65,
-5,
-38,
48,
17,
3,
-96,
-43,
-37,
33,
-29,
-49,
-13,
-46,
-69,
-23,
-7,
-3,
39,
73,
-24,
-13,
40,
25,
65,
-4,
-9,
25,
-41,
11,
-29,
11,
-108,
-16,
-27,
14,
-7,
-21,
-22,
-16,
-6,
19,
34,
20,
-2,
23,
14,
14,
-37,
-5,
-48,
8,
-30,
-7,
61,
-6,
-41,
17,
15,
-33,
-5,
-41,
-28,
91,
22,
-22,
15,
-34,
37,
5,
-24,
33,
0,
-13,
0,
76,
-18,
34,
-40,
4,
-31,
-7,
-27,
-25,
38,
-14,
16,
-20,
-39,
7,
-18,
-58,
11,
22,
-23,
-9,
-5,
9,
-42,
-21,
3,
-15,
-10,
-66,
6,
27,
-69,
5,
2,
11,
-27,
-16,
-53,
-8,
6,
36,
-44,
-10,
-58,
9,
-22,
-2,
62,
2,
27,
-24,
-22,
20,
28,
33,
-4,
12,
-20,
-62,
-5,
-18,
-48,
7,
21,
-33,
5,
26,
10,
40,
-50,
43,
-60,
27,
39,
1,
-53,
20,
-47,
57,
43,
28,
-32,
35,
-20,
-1,
7,
94,
3,
-82,
5,
-13,
-21,
22,
30,
44,
46,
50,
0,
37,
-64,
18,
-9,
42,
-22,
29,
40,
8,
-69,
-22,
-18,
26,
-2,
-29,
-32,
-30,
53,
-30,
-39,
-25,
14,
11,
-2,
24,
19,
-46,
-58,
13,
67,
-23,
47,
-69,
-12,
-9,
48,
50,
59,
-8,
0,
38,
-22,
19,
47,
58,
19,
-29,
19,
-31,
2,
57,
36,
11,
-46,
-69,
-74,
-14,
-4,
36,
-41,
-26,
39,
17,
-1,
-2,
-19,
-7,
26,
-46,
14,
14,
-47,
56,
14,
-21,
-14,
6,
35,
31,
17,
63,
50,
-52,
45,
38,
-74,
-21,
-3,
8,
-33,
-5,
-24,
-23,
45,
8,
22,
19,
31,
40,
26,
39,
-59,
-4,
26,
-4,
-5,
-44,
50,
-30,
-8,
45,
28,
39,
-54,
93,
-5,
28,
17,
-46,
-6,
10,
-30,
-28,
-31,
42,
-10,
24,
-97,
-4,
0,
-44,
-2,
-78,
-10,
27,
-6,
-41,
-28,
0,
47,
-23,
14,
5,
6,
17,
12,
-3,
1,
6,
0,
11,
7,
26,
11,
7,
-12,
-9,
-58,
-6,
-46,
-52,
45,
1,
-17,
-20,
-26,
5,
7,
4,
61,
-39,
27,
-21,
60,
-11,
-14,
13,
54,
41,
3,
45,
26,
-16,
-14,
-67,
43,
41,
70,
-6,
52,
-35,
-13,
-22,
-8,
-51,
-27,
-10,
24,
11,
-65,
-82,
1,
22,
-26,
-8,
19,
-45,
27,
-35,
16,
-4,
23,
23,
-11,
10,
40,
16,
-3,
-15,
-8,
71,
-13,
-4,
1,
39,
-11,
-28,
18,
-17,
21,
3,
50,
34,
57,
18,
16,
26,
-2,
53,
1,
18,
-2,
-8,
-35,
16,
-58,
-45,
-18,
29,
-12,
-6,
8,
55,
-34,
-9,
38,
7,
-47,
-9,
45,
11,
54,
-26,
37,
-18,
6,
10,
55,
-1,
4,
26,
-1,
-17,
39,
30,
-28,
-40,
11,
11,
-35,
-13,
-26,
-23,
-31,
-53,
29,
15,
-3,
-58,
-12,
-9,
3,
-23,
-34,
3,
-28,
-18,
5,
18,
7,
-28,
15,
-34,
31,
40,
-7,
8,
13,
66,
23,
-33,
-1,
17,
37,
25,
-25,
-4,
69,
-17,
10,
-45,
-37,
16,
10,
39,
21,
15,
24,
-54,
-15,
-22,
-24,
-16,
-63,
50,
22,
-2,
42,
-53,
43,
-22,
-12,
12,
17,
-37,
-58,
-36,
-50,
9,
-3,
-3,
87,
24,
-34,
-13,
9,
-78,
-9,
7,
17,
-7,
61,
65,
-12,
32,
28,
72,
-4,
-42,
30,
-26,
-12,
-58,
21,
3,
4,
-48,
19,
11,
-20,
17,
30,
-61,
17,
-65,
51,
-25,
-37,
13,
21,
24,
-6,
16,
-33,
24,
-5,
-11,
23,
35,
13,
-35,
-34,
-22,
-41,
44,
9,
0,
-14,
35,
14,
60,
-12,
-20,
11,
28,
0,
30,
-54,
38,
-16,
-15,
4,
33,
15,
11,
26,
-60,
15,
-69,
1,
15,
-11,
-2,
9,
-24,
-40,
10,
-40,
-12,
-40,
47,
-49,
23,
32,
-21,
-7,
28,
37,
21,
-17,
13,
5,
34,
-5,
-40,
-24,
-18,
70,
14,
12,
-5,
-9,
22,
-54,
-36,
-47,
-5,
48,
1,
30,
15,
-36,
-1,
-7,
0,
98,
1,
9,
47,
-27,
4,
61,
21,
-8,
45,
-1,
-18,
0,
-18,
-16,
21,
-10,
-1,
-5,
34,
-12,
1,
70,
-5,
49,
19,
-6,
12,
49,
-27,
51,
-43,
-68,
20,
27,
-19,
13,
-16,
3,
-46,
38,
-25,
6,
-6,
51,
-3,
-38,
-46,
-29,
-11,
8,
42,
32,
-3,
78,
-17,
0,
48,
2,
13,
42,
10,
-11,
-40,
20,
-15,
1,
-30,
-13,
-53,
15,
-39,
-5,
69,
52,
32,
-11,
66,
1,
19,
-4,
10,
16,
19,
-33,
13,
1,
-35,
-15,
49,
0,
-47,
-9,
64,
-7,
34,
-66,
-14,
-7,
36,
-23,
21,
-32,
18,
-43,
8,
-73,
17,
-36,
0,
-44,
-6,
-85,
1,
25,
23,
58,
23,
20,
-46,
-34,
30,
19
] |
MR. JUSTICE METCALF:
This is an original proceeding by which the relator seeks to set aside an order suppressing evidence made by the Hon. George W. Padbury, judge of the first judicial district.
The facts summarized are: On January 30, 1950, the county attorney of Lewis and Clark county asked leave of court to file an information charging John P. Phillips with the crime of receiving stolen property. Leave was granted by the Hon. A. J. Horsky, judge of the first judicial district, presiding in department No. 1 of that court. The cause was assigned number 2655 by the clerk of court.
On April 29,' 1950, the defendant John P. Phillips moved to suppress certain evidence. This motion was based upon Phillips’ affidavit, whereby Phillips asserted that the deputy sheriff and two state stock inspectors had seized this evidence from his premises without a search warrant or legal process of any kind. The motion and the affidavit in support of the motion raised a question of fact concerning the manner in which the state of Montana came into possession of the evidence in question. In the hearing that took place on the motion, the evidence produced was sharply conflicting.
On May 5, 1950, in cause No. 2655, the State of Montana v. John P. Phillips, the defendant’s motion to suppress evidence and return the property came up for hearing in department No. 1 of the district court of the first judicial district. The county attorney objected to the matter being heard at that time before the Hon. George W. Padbury, presiding judge of department 2.
Defendant’s motion to suppress the evidence was sustained on November 14, 1950. Thereafter the county attorney brought this original proceeding to set aside and annul Judge Padbury’s minute entry granting the defendant’s motion to suppress the evidence.
In his petition he alleges that: ‘ ‘ The usual practice followed in the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, with reference to the trial of criminal cases, is that the Hon. George W. Padbury, Jr., Judge of Department No. 2, tries all such criminal cases; that in this particular case the Hon. George W. Padbury, Jr. announced that in view of the fact that he intended to appear as a defense witness for and on behalf of said defendant, John P. Phillips, he deemed it improper for him to preside in said criminal matter; that because of the foregoing reasons it was agreed that the Hon. A. J. Horsky would preside in this particular criminal action; that both the Hon. A. J. Horsky and the Hon. George W. Padbury, Jr. agreed that from and after the filing of said information the Hon. A. J. Horsky would preside thereon.”
On March 10, 1951, this court issued an alternative writ ordering the district court of the first judicial district and the Hon. George W. Padbury, Jr., one of the judges thereof, to appear on the 23rd day of March, 1951, and show cause why the minute entry suppressing the evidence in the case of State v. Phillips should not be vacated, annulled and set aside and further, why the Hon. George W. Padbury, Jr. should not be enjoined from further participating in said cause as presiding judge thereof.
On the return day the Hon. George W. Padbury, Jr., in behalf of the district court of the first judicial district appeared by counsel who filed a motion to quash. Judge Padbury filed an affidavit in which he stated that: “He is the presiding Judge in the case of the State of Montana v. John Phillips, ■which is a criminal cause and in which the defendant is charged with receiving stolen property; that he advised the office of the .County Attorney of Lewis and Clark County, Montana, and others, subsequent to the filing of the information above referred to, that because of the fact that the defendant had called him on the telephone relative to some of the facts in said case, he would not preside at the trial in said cause, but he did not at any time advise any person whatsoever that he felt disqualified to, or that he was disqualified to hear a motion to suppress evidence in the above entitled cause; that said motion to suppress evidence involved a matter of law entirely unrelated to any of the facts involved in the trial of said cause; that he did not at any time agree that the Hon. A. J. Horsky should preside in said cause after the filing of the information therein. ’ ’
The merits of the motion to suppress the evidence are not before us. The only question before us is whether the Hon. George W. Padbury, Jr. was authorized to preside at the hearing of the motion.
R. C. M. 1947, section 93-321, provides for the apportionment of the business of the court in districts having more than one judge. “The judges elected or appointed to hold office in each judicial district, having more than 'one judge, may divide the court into departments, prescribe the order of business, and make rules for the government of such court. They must apportion the business of the court among themselves as equally as may be, but in case of their failure to make such apportionment for any cause, the supreme court, upon application of any interested person, shall make an order apportioning such business, and cause the same to be entered upon the minute book of the district court in each county in such district, and such order shall remain in full force and effect until modified or repealed by the authority making it. ’ ’
Prior to the Fourteenth Session of the Legislature in 1915, R. C. M. 1947, section 93-321, which was then section 6278, Revised Codes of 1907, merely empowered the judges in a district where there was more than one judge to divide the court into departments, prescribe the order of business, and make rules for the government of the court not inconsistent with the Constitution or the statutes of the state.
Under this power the district court of the first judicial district had, on March 10, 1905, made such rules.
In 1914 the case of State ex rel. Little v. District Court, 49 Mont. 158, 141 Pac. 151, was decided by this court. That case arose as follows: Rule No. 2 of the district court of the first judicial district provided: “All criminal causes and matters of a criminal nature are hereby assigned to department 1.” Judge Smith, presiding judge in department No. 2 called a grand jury and one Howard Little was indicted. He was brought before Judge Smith for arraignment and objected that under rule 2 Judge Smith had no authority to proceed with the case. The objection was overruled. Then Little appeared in department No. 1, presided over by Judge Clements, and moved to quash the indictment. This motion was granted, and the defendant ordered discharged.
This court held that upon a change in the personnel of the court, there may be a reapportionment of its business. But “because'a distribution of business is personal to the judges, it is not a subject within the purview of court rules; and rule No. 2, adopted in 1905, while effective as the expression of the will of the judges in office at that time, is not binding upon the present judges. * * * In the absence of any agreement between these two judges upon an apportionment of the business of the court between them, or, what is the same thing, between their departments, either one, when in open court, possessed all the power and authority of the district court to hear and determine the case of the State ex rel. Little, and, cognizance of that cause having first been taken in department No. 2, it was beyond the power of any other court of concurrent jurisdiction, or any other department of the same court, to interfere. These rules are elementary, and their observance necessary to the orderly dispatch of business and the protection of the rights of litigants.”
As a result of the controversy between the judges of the first judicial district, the Fourteenth Legislative Assembly amended section 6278 of the Revised Codes of 1907 to provide that if the judges failed to make such apportionment, the Supreme Court should make an order apportioning such business and cause the same to be entered on the minute books of the district court. In accordance with this Act, on June 3, 1915, a committee of the Helena Bar Association, composed of distinguished members of the bar of the first judicial district, petitioned the supreme court to make rules apportioning the business between the departments of the district court of the first judicial district. On June 21, 1915, the matter of the court rules for the first judicial district was heard by this court and suggestions of members of the bar and representatives of the district judges of Lewis and Clark county were made, and thereafter, on June 25, 1915, this court ordered that the rules of practice as promulgated by the court be filed with the clerk of the district court and be the rules for practice and procedure in the district court of the first judicial district. Rule 2 of these rules as promulgated by that order of June 1915 apportioned the business of the court as follows: “All civil actions, including appeals in civil actions from justice of the peace courts, and all civil proceedings of a civil nature shall be heard in department No. 1; all probate matters, insanity inquests, juvenile matters, all criminal actions, including appeals in criminal actions, in justice of the peace courts, and all special proceedings of a criminal nature shall be heard in department No. 2. Either judge may issue a writ of habeas corpus, but the writ shall be made returnable and be heard in department No. 2 or before the judge thereof.”
Thereafter, on September 13, 1915, the two judges of the first judicial district petitioned this court for an amendment to rule 2, assigning and apportioning the business between the departments, requesting that the rule be amended to read: “All civil and criminal actions and proceedings bearing an even number shall be assigned to department 2 of said court; and all civil and criminal actions and proceedings bearing an odd number shall be assigned to department 1 of said court; all probate matters and insanity inquests may be heard and transacted in either department and all juvenile matters are assigned to department 2. The judges, however, may at any time, by an order entered on the minutes of the department to which any cause may have been originally assigned, reassign any such cause to the other department, whenever the convenient dispatch of business shall so require. Any cause or causes ready for trial in any department may be transferred by the presiding judge of such department to the judge of the other department to be by him disposed of if he be not otherwise engaged; such transfer is only for the convenient dispatch of business and does not transfer the case from the department to which it was assigned; nor is it intended in any manner to interfere with the order of business in any department, nor to permit the transfer to any department against the objection of the judge there sitting.”
This court granted the petition and on September 13, 1915, annulled and set aside the previous rule 2 and ordered that rule 2 as above set forth in the district judges’ petition be promulgated for the district court of the first judicial district, and this is the rule that is still in effect assigning the business and apportioning the duties of the two departments of the district court of the first judicial district.
Rules of court, when properly promulgated, have all the force and effect of law within the territorial limits of the district. Roush v. District Court, 101 Mont. 166, 53 Pac. (2d) 96; State v. Kacar, 74 Mont. 269, 240 Pac. 365. And such rules properly adopted are binding on the court and its officers as well as on the parties and their counsel. State ex rel. Hansen v. District Court, 72 Mont. 245, 233 Pac. 126.
Apparently the rule assigning the business of the court and apportioning the duties of the judges in each of the two departments has been more honored by the breach than by the observance. The petitioner’s statement that all criminal cases have been handled by department No. 2 and other matters by department No. 1 has not been denied. In Judge Padbury’s affidavit, he evidently believed that the cause at bar was to be handled in the customary manner and since it was a criminal case, he was the presiding judge in the cause. However, a general disregard of a particular rule by consent, acquiescence or waiver will not excuse such disregard in a particular case where the adverse party insists on his rights. Hill v. Webber, 50 Mich. 142, 15 N. W. 52. In the instant case leave to file the information was granted by Judge Horsky and the information when filed was given an odd number and therefore became a criminal matter in department No. 1, over which Judge Horsky presided. Under the rule, the only way that it could be transferred to or assigned to Judge Padbury was by an' order made by Judge Horsky entered on the minutes of the court. No such order was ever made. The county attorney insisted that the motion in the cause be heard by Judge Horsky and that the rule be observed. Cognizance of the matter having been first taken in department No. 1, it was beyond the power of any other department of the same court to interfere. Lutey Bros. v. Jackson, 55 Mont. 556, 179 Pac. 459; State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 Pac. 244.
If section 93-321 had not been amended and the assignment and apportionment of the business of the district court of the first judicial district not made by the supreme court of Montana, Judge Horsky would be the judge having control of the case under the decision of State ex rel. Little, supra. The 1915 amendment to section 6278, Revised Codes of 1907, makes the apportionment of business within the purview of the court rules and the rule of court apportioning its business binding upon the members of the court until changed. Rule 2 as finally promulgated is the basis for determining which of the district judges in the first judicial district shall control the progress of any cause.
Under the general law and the rules of court Judge Padbury had no authority to hear the motion to suppress the evidence in cause numbered 2655, State v. Phillips, and all the proceedings had before Judge Padbury are void and are set aside and held for naught.
Let the writ issue forthwith.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANGSTMAN, concur.
|
[
29,
-19,
50,
31,
-7,
-55,
-50,
22,
-11,
49,
16,
-63,
1,
-68,
-8,
-3,
-1,
-9,
87,
-25,
4,
-36,
-41,
-14,
26,
-38,
-51,
2,
-81,
-3,
-28,
29,
13,
-14,
64,
-26,
89,
-11,
-6,
-4,
35,
-5,
29,
44,
16,
6,
-42,
72,
-29,
-37,
25,
12,
-14,
16,
19,
-22,
37,
-19,
52,
-25,
11,
-8,
15,
2,
8,
45,
5,
-27,
-30,
-25,
10,
33,
-8,
3,
75,
-8,
-36,
-14,
-15,
44,
25,
44,
-11,
3,
10,
-41,
-28,
-11,
6,
29,
-1,
-2,
-9,
-15,
13,
-49,
16,
-6,
34,
3,
-6,
30,
-67,
-51,
22,
-6,
-40,
18,
15,
31,
-18,
11,
2,
-68,
-3,
-25,
27,
3,
-5,
-5,
74,
-4,
44,
72,
-51,
30,
36,
-18,
11,
25,
14,
-22,
44,
-58,
29,
-1,
-41,
-29,
-14,
-42,
-5,
-19,
-16,
24,
-13,
-15,
19,
25,
35,
58,
-44,
23,
27,
57,
-8,
-6,
15,
-19,
27,
2,
11,
46,
-32,
-18,
-12,
60,
-2,
-4,
-17,
-41,
-12,
15,
-17,
50,
-2,
14,
-5,
2,
11,
-13,
13,
-2,
55,
-30,
-7,
-6,
-7,
56,
39,
16,
3,
3,
18,
-30,
36,
-25,
-3,
-5,
9,
-45,
-2,
-11,
20,
19,
-4,
41,
35,
-17,
4,
-8,
-13,
-21,
31,
4,
-77,
-33,
-27,
-35,
-1,
15,
36,
14,
6,
56,
27,
-9,
33,
3,
3,
-23,
-39,
26,
19,
-76,
44,
-12,
-17,
-8,
-38,
46,
-35,
-34,
18,
-22,
48,
9,
-16,
-22,
-28,
-7,
-3,
13,
-59,
11,
0,
-15,
52,
-2,
-27,
-30,
-16,
6,
65,
41,
-5,
-12,
56,
31,
76,
29,
41,
3,
35,
-25,
-20,
-17,
-40,
-55,
-1,
-11,
-11,
-38,
-23,
0,
12,
-60,
-1,
14,
20,
-30,
-65,
-19,
-58,
-23,
-26,
88,
43,
-13,
30,
-22,
-11,
68,
-39,
6,
-19,
20,
-20,
-7,
15,
22,
37,
72,
-12,
16,
31,
-33,
0,
-17,
30,
-19,
-44,
-32,
-23,
-21,
-26,
44,
-27,
27,
35,
65,
42,
-11,
-10,
-49,
-18,
-46,
6,
-5,
-18,
8,
-22,
-64,
0,
12,
-50,
25,
2,
-11,
-29,
-72,
12,
17,
24,
48,
-39,
8,
-67,
-19,
53,
-47,
-32,
-3,
-1,
7,
21,
28,
-52,
-48,
-15,
-83,
-52,
-20,
4,
-19,
23,
25,
28,
-27,
-3,
-21,
-21,
-43,
-42,
21,
9,
49,
62,
19,
-1,
-6,
24,
12,
45,
0,
-23,
53,
32,
-2,
-23,
56,
-37,
13,
3,
5,
-28,
-18,
5,
60,
-22,
-20,
25,
-1,
-48,
61,
11,
6,
2,
-4,
46,
-9,
15,
32,
11,
-53,
48,
-29,
-26,
-8,
26,
-26,
29,
8,
12,
44,
10,
42,
-30,
17,
15,
-3,
-40,
3,
1,
25,
-5,
-6,
12,
9,
-2,
51,
-13,
26,
16,
-23,
-23,
103,
47,
-31,
-10,
-13,
19,
72,
9,
-58,
42,
21,
12,
-74,
5,
28,
19,
29,
4,
-46,
-54,
39,
-24,
12,
49,
-56,
16,
-29,
-33,
14,
19,
14,
-40,
13,
93,
61,
-6,
-24,
5,
34,
-22,
-13,
-20,
-56,
30,
39,
-17,
2,
-2,
29,
52,
10,
14,
55,
-8,
21,
44,
-18,
13,
-22,
-4,
46,
64,
18,
-47,
21,
16,
18,
16,
-58,
-47,
-15,
-12,
-25,
-13,
-53,
-11,
-6,
-8,
-8,
-38,
35,
79,
13,
-5,
-2,
27,
-19,
18,
49,
14,
-54,
-29,
-23,
-9,
-19,
53,
31,
16,
18,
-43,
38,
0,
21,
-59,
-66,
29,
0,
-58,
-19,
-9,
20,
-73,
-54,
35,
-11,
-4,
-29,
2,
-12,
23,
55,
0,
-24,
22,
69,
12,
-14,
29,
20,
-23,
-30,
19,
22,
-5,
-14,
-11,
-73,
-23,
-13,
34,
-3,
-16,
-27,
-22,
17,
0,
-31,
4,
2,
37,
-29,
72,
33,
-20,
-4,
30,
-26,
10,
11,
-9,
46,
-53,
-35,
-9,
47,
-20,
-50,
23,
-34,
-6,
11,
-52,
-2,
10,
-38,
-33,
-85,
-32,
25,
-32,
-21,
-44,
-28,
-2,
1,
-2,
-1,
-8,
5,
-40,
-24,
9,
-24,
25,
15,
18,
-5,
-10,
1,
15,
7,
0,
23,
63,
20,
42,
-11,
-20,
-35,
22,
20,
64,
12,
15,
-4,
-17,
-14,
-40,
-4,
-15,
-50,
39,
-33,
-1,
-69,
29,
44,
11,
21,
-12,
45,
-4,
41,
-46,
13,
40,
23,
11,
25,
-44,
-12,
-21,
-82,
43,
-22,
37,
13,
-7,
-17,
-39,
-1,
-5,
-9,
-48,
-19,
-32,
29,
-6,
42,
26,
-31,
27,
64,
11,
-31,
-16,
-14,
-20,
12,
20,
-17,
-1,
36,
45,
-41,
4,
-54,
-22,
14,
-47,
10,
0,
3,
6,
1,
-22,
-69,
-21,
-28,
80,
-14,
43,
3,
-44,
-14,
67,
-13,
26,
43,
-41,
6,
-17,
6,
-20,
-21,
44,
34,
-58,
-55,
-39,
-23,
-2,
-18,
-9,
8,
18,
-56,
-6,
-2,
-37,
38,
-9,
-12,
6,
0,
34,
0,
-32,
40,
12,
11,
27,
4,
-5,
27,
15,
-18,
-19,
-29,
2,
-27,
-52,
-42,
-111,
29,
76,
-11,
-18,
12,
-4,
9,
-40,
38,
-100,
-53,
-37,
56,
26,
-59,
-52,
-68,
38,
30,
-20,
-39,
47,
-20,
50,
-65,
10,
-23,
10,
-13,
0,
15,
41,
-3,
-1,
-67,
74,
-1,
-34,
19,
-32,
15,
6,
15,
41,
-27,
-2,
11,
-4,
-5,
38,
18,
-6,
32,
-36,
8,
-29,
-49,
43,
-51,
-26,
0,
-5,
62,
26,
-35,
5,
-9,
0,
0,
-17,
50,
46,
6,
59,
25,
-3,
-7,
-5,
22,
-12,
3,
0,
13,
-21,
-16,
-36,
-24,
2,
-3,
56,
1,
13,
-30,
0,
9,
18,
12,
64,
-67,
-42,
49,
13,
5,
13,
8,
31,
-16,
59,
-22,
45,
51,
31,
-15,
-54,
-47,
0,
-27,
-23,
28,
59,
42,
49,
1,
-9,
46,
-23,
-51,
-14,
-38,
33,
61,
41,
3,
11,
-24,
5,
-23,
-44,
-59,
24,
4,
-29,
-52,
33,
46,
36,
70,
-10,
-44,
-28,
27,
2,
-28,
-2,
-24,
15,
49,
26,
-42,
70,
-45,
-14,
7,
-13,
-15,
-20,
-13,
-14,
33,
-62,
-4,
-5,
-25,
-5,
-27,
40,
13,
9,
37,
5,
31,
-18,
-14,
-2,
-19,
8,
8,
16,
-28,
7,
42,
43,
33,
-41,
-23,
16,
46,
3,
-38,
-1,
-18,
13,
21,
1,
-21,
20,
17,
-14,
-19,
3,
26,
1,
-37,
24,
-2,
-44,
-18,
2,
-24,
1,
-19,
-90,
25,
-14,
45
] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 The State appeals from the District Court’s order determining that the State of Montana’s public school system violates Article X, Section 1(3), of the Montana Constitution. This Court issued an order on November 9, 2004, affirming the District Court. This opinion supersedes that order.
¶2 We restate the issues as follows:
¶3 1. Whether a challenge to the adequacy of the State’s funding of a basic system of free quality public elementary and secondary schools presents a non-justiciable political question.
¶4 2. Whether the District Court erroneously concluded that the current school funding system violates Article X, Section 1(3), by failing to provide adequate funding for Montana’s schools.
¶5 3. Whether the District Court erred in concluding that the State has violated Article X, Section 1(3), by not paying its share of the cost of the public school system.
¶6 4. Whether the District Court erred in concluding that the State has violated Article X, Section 1(2), by not recognizing the cultural heritage of American Indians in its educational goals.
¶7 5. Whether the October 2005 effective date of the District Court’s opinion should be moved up to May 2005.
¶8 6. Whether the current school funding system violates the Equal Protection Clause of the Montana Constitution.
¶9 7. Whether an award of attorney fees is appropriate.
BACKGROUND
¶10 A coalition of schools, education groups, and parents (the Coalition) brought this action contending that the State has acted unconstitutionally in administering and funding Montana’s constitutionally-mandated public school system. After a three-week trial, the District Court found serious problems with the current school system, relating both to the manner in which the State funds its public schools and the educational product the schools are delivering. The District Court concluded that the current system violates the Public Schools Clause of Article X, Section 1(3), and the Indian Education Clause of Article X, Section 1(2). The District Court also concluded that the current school system does not violate the Equal Protection Clause of the Montana Constitution and that the Coalition should not be awarded attorney fees.
¶11 The State now appeals, arguing that we cannot reach the issue whether the current school system violates Article X, Section 1(3), because the issue is a political question. In the alternative, the State argues that the District Court wrongly concluded that the current school system violates Article X, Section 1(3). The Coalition cross-appeals, arguing that the court erred in concluding that the current school system does not violate Montana’s Equal Protection Clause, that the effective date of the court’s opinion should be moved from October 1, 2005, to May 1, 2005, and that the court erred in not awarding attorney fees. We conclude that, since the Legislature has implemented Article X, Section 1(3), the question whether the system it created violates the Constitution is not a political question. We affirm the court’s determination that the current system violates Article X, Section 1(3), but we also defer to the Legislature for the definition of “quality” as used in that constitutional provision. Furthermore, we affirm the effective date of the District Court’s opinion and vacate and remand the issue of attorney fees.
STANDARD OF REVIEW
¶12 Whether an issue presents a non-justiciable political question is a legal conclusion that this Court reviews de novo. Northfield Ins. Co. v. Montana Ass’n of Counties, 2000 MT 256, ¶ 8, 301 Mont. 472, ¶ 8, 10 P.3d 813, ¶ 8. We review a district court’s findings of fact to determine whether they are clearly erroneous, In re Estate of James, 2004 MT 314, ¶ 9, 324 Mont. 24, ¶ 9, 102 P.3d 12, ¶ 9, and a district court’s discretionary rulings, such as the award or denial of attorney fees, for abuse of discretion. Johnson v. Hamilton, 2003 MT 199, ¶ 9, 317 Mont. 24, ¶ 9, 75 P.3d 778, ¶ 9; Mortgage Source, Inc. v. Strong, 2003 MT 205, ¶ 8, 317 Mont. 37, ¶ 8, 75 P.3d 304, ¶ 8.
DISCUSSION
ISSUE ONE
¶13 Whether a challenge to the adequacy of the State’s funding of a basic system of free quality public elementary and secondary schools presents a non-justiciable political question.
¶14 The State, relying on Baker v. Carr (1962), 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663, 686, asserts that questions arising under Montana Constitution Article X, Section 1(3), are non-justiciable under the political question doctrine. That section provides: “The legislature shall provide a basic system of free quality public elementary and secondary schools.” Of course, in interpreting our own Constitution, this Court need not defer to the United States Supreme Court. State v. Jackson (1983), 206 Mont. 338, 342, 672 P.2d 255, 257. Nonetheless, given the dearth of Montana precedent on the political question doctrine and the State’s reliance on federal doctrine, we look to the federal precedent for guidance in developing our own doctrine.
¶15 Both the United States Supreme Court and this Court recognize that non-self-executing clauses of constitutions are non-justiciable political questions. Baker, 369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686 (listing one factor of the federal political question doctrine as “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”); State ex rel. Stafford v. Fox-Great Falls Theatre Corp. (1942), 114 Mont. 52, 73, 132 P.2d 689, 700.
¶16 To determine whether the provision is self-executing, we ask whether the Constitution addresses the language to the courts or to the Legislature. Stafford, 114 Mont, at 73, 132 P.2d at 700. If addressed to the Legislature, the provision is non-self-executing; if addressed to the courts, it is self-executing. Stafford, 114 Mont, at 73- 74, 132 P.2d at 700. Louisiana’s Constitution once provided that “Gambling is a vice and the Legislature shall pass laws to suppress it.” State v. Mustachia (La. 1922), 94 So. 408, 409. In Stafford, we agreed with the Louisiana Supreme Court’s conclusion that provisions beginning “the Legislature shall” are non-self-executing provisions; as such, in Louisiana, gambling was legal unless the Legislature enacted a provision making it illegal. Stafford, 114 Mont, at 75-76, 132 P.2d at 701 (citing Mustachia, 94 So. at 409).
¶17 Like the Louisiana clause, Montana’s Public Schools Clause constitutes a directive to the Legislature: “The legislature shall provide a basic system of free quality public elementary and secondary schools.” Since the Public Schools Clause is non-self-executing, it presents a political question which, in the first instance, is directed to the Legislature and is non-justiciable. That determination, however, does not end the inquiry. As here, (1) once the Legislature has acted, or “executed,” a provision (2) that implicates individual constitutional rights, courts can determine whether that enactment fulfills the Legislature’s constitutional responsibility. City of Boerne v. Flores (1997), 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (determining, under the First Amendment, that the Religious Freedom Restoration Act of 1993 violates the Constitution despite Congress specifically implementing the Act through Section 5 of the Fourteenth Amendment, that provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”).
¶18 Like Section 5 of the Fourteenth Amendment of the United States Constitution, provisions that directly implicate rights guaranteed to individuals under our Constitution are in a category of their own. That is, although the provision may be non-self-executing, thus requiring initial legislative action, the courts, as final interpreters of the Constitution, have the final “obligation to guard, enforce, and protect every right granted or secured by the Constitution....” Robb v. Connolly (1884), 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542, 546. Thus the question whether Article X, Section 1(3), presents a “justiciable” controversy cannot be addressed in a vacuum. The clause must be read in the context of any correlative individual rights guaranteed under the Montana Constitution.
¶19 In this case, the requirement that the Legislature shall provide a basic system of free quality public schools, must be read in conjunction with Section 1 of Article X, which guarantees a right to education. Kaptein ex rel. Kaptein v. Conrad Sch. Dist. (1997), 281 Mont. 152, 155, 931 P.2d 1311, 1313; see State ex rel. Bartmess v. Bd. of Trustees (1986), 223 Mont. 269, 275, 726 P.2d 801, 804-05. In the case sub judice, the Legislature has addressed the threshold political question: it has executed Article X, Section 1(3), by creating a basic system of free public schools. As the final guardian and protector of the right to education, it is incumbent upon the court to assure that the system enacted by the Legislature enforces, protects and fulfills the right. We conclude this issue is justiciable.
ISSUE TWO
¶20 Whether the District Court erroneously concluded that the current school funding system violates Article X, Section 1(3), by failing to provide adequate funding for Montana’s schools.
¶21 Article X, Section 1(3), of the Montana Constitution mandates that “[t]he legislature shall provide a basic system of free quality public elementary and secondary schools.... It shall fund and distribute in an equitable manner to the school districts the state’s share of the cost of the basic elementary and secondary school system.” As we have just stated, the Legislature has made an initial policy determination regarding this language. It has created a public school system and a method of funding the system. Although Article X, Section 1(3), is textually committed to the Legislature in the first instance, once the Legislature acts we are not barred from reaching the question of whether the Legislature has fulfilled its constitutional obligation to “provide a basic system of free quality public elementary and secondary schools.”
¶22 Although the Legislature has made an initial policy determination by establishing a public school system (the relevant consideration under the Political Question Doctrine), it has not made a determination as to the meaning of “quality.” Because the Constitution mandates that the Legislature provide a quality education, we determine that the Legislature can best construct a “quality” system of education if it first defines what is a “quality” system of education. In addition, even though we here defer to the Legislature as to what constitutes “quality,” given the unchallenged findings of the District Court we do conclude that the educational product of the current school system is constitutionally deficient and that the Legislature currently fails to adequately fund Montana’s public school system.
¶23 The Montana Legislature created the current education funding system in 1993 with House Bill (HB) 667. The Legislature did so in response to a court challenge to the former system. Unlike in the current proceedings, that challenge was brought under the Equality of Educational Opportunity Clause. Mont. Const. Art. X, Sec. 1(1). We addressed the challenge in Helena Elementary Sch. Hist. No. 1 v. State (1989), 236 Mont. 44, 55, 769 P.2d 684, 690, where we concluded that the spending disparities among the State’s school districts constituted a denial of equality of educational opportunity as guaranteed by Article X, Section 1(1) of the Montana Constitution.
¶24 HB 667 sought to address those inequities. It did this by relying on a regression analysis designed to address spending and taxing disparities among school districts. Central to the funding system it instituted is the “general fund.” The general fund is the largest and most important part of a school district’s overall budget. Each school district’s general fund budget includes a basic entitlement lump sum from the State, the Average Number Belonging (ANB) entitlement, locally raised funds, and special education funds. A school district’s general fund budget has a built-in maximum and minimum, computed using a formula. Tellingly, most school districts currently either exceed their maximum budgets or are budgeting over 98 percent of the 100 percent they are allowed to spend. At trial some educators stated that their districts could not provide what they considered a “quality” education unless they were allowed to spend more than their general fund maximum.
¶25 This funding system is not correlated with any understanding of what constitutes a “quality” education. The evidence for this is twofold. First, as the State admitted at oral argument, in passing HB 667, the Legislature did not undertake a study of what the Public Schools Clause demands of it. That is, it did not seek to define “quality.” As stated above, since the Legislature has not defined “quality” as that term is used in Article X, Section 1(3), we cannot conclude that the current funding system was designed to provide a quality education. Second, as found by the District Court, the Legislature, in creating the spending formula of HB 667, did not link the formula to any factors that might constitute a “quality” education.
¶26 The District Court found that the “major problems” with HB 667 were: it provided no mechanism to deal with inflation; it did not base its numbers on costs such as teacher pay, meeting accreditation standards, fixed costs, or costs of special education; increases in allowable spending were not tied to costs of increased accreditation standards or content and performance standards; relevant data was already two years old when the bill was passed; and no study was undertaken to justify the disparity in ANB dollars dispensed to high schools as compared to elementary schools. From these credible findings we must conclude that the Legislature did not endeavor to create a school funding system with quality in mind. Unless funding relates to needs such as academic standards, teacher pay, fixed costs, costs of special education, and performance standards, then the funding is not related to the cornerstones of a quality education. We also note that in Helena Elementary we stated that “the accreditation standards establish a minimum upon which quality education can be built” but “do not fully define either the constitutional rights of students or the constitutional responsibilities of the State of Montana for funding its public elementary and secondary schools.” Helena Elementary, 236 Mont. at 57, 769 P.2d at 692.
¶27 Without an assessment of what constitutes a “quality” education, the Legislature has no reference point from which to relate funding to relevant educational needs. In the absence of a threshold definition of quality, we cannot conclude that the system is adequately funded as required by Article X, Section 1(3).
¶28 The above analysis is essentially prospective in nature-that is, it states what the Constitution demands of the Legislature and what the Legislature must do to fashion a constitutional education system. Nonetheless, in order to address the Coalition’s claims we have to address the educational product that the present school system provides, not just the manner in which the Legislature funds that school system. Even given the absence of a definition of “quality” education, the District Court’s findings demonstrate that whatever legitimate definition of quality that the Legislature may devise, the educational product of the present school system is constitutionally deficient and that the Legislature currently fails to adequately fund Montana’s public school system.
¶29 The evidence that the current system is constitutionally deficient includes the following unchallenged findings made by the District Court: school districts increasingly budgeting at or near their maximum budget authority; growing accreditation problems; many qualified educators leaving the state to take advantage of higher salaries and benefits offered elsewhere; the cutting of programs; the deterioration of school buildings and inadequate funds for building repair and for new construction; and increased competition for general fund dollars between special and general education.
¶30 The State counters by arguing that the District Court should have considered output measures, such as test scores, in determining whether the current system is constitutional, and that under such measures Montana compares very favorably with other states. Indeed, Montana’s students often do perform quite well on standardized achievement tests. However, current test scores do not tell the whole story. First of all, a “system” of education includes more than high achievement on standardized tests. We have noted elsewhere, for example, that school districts have an interest in integrating their academic programs with extracurricular activities. Kaptein, 281 Mont. at 162, 931 P.2d at 1317. Secondly, it may be that test scores are not attributable to the current educational system. The voluminous evidence presented at trial and summarized in the preceding paragraph established that although Montana’s students are testing well when compared with students in similar states, there are serious concerns as to whether this level of achievement will continue. With the District Court’s findings of fact in mind, it may be that the achievement registered by Montana’s students is not because of the current educational system.
¶31 Therefore, because the Legislature has not defined what “quality” means we cannot conclude that the current system is designed to provide a “quality” education. Article X, Section 1(3), explicitly requires the Legislature to fund a “quality” educational system. Therefore we defer to the Legislature to provide a threshold definition of what the Public Schools Clause requires. We also conclude, however, that given the unchallenged findings made by the District Court, whatever definition the Legislature devises, the current funding system is not grounded in principles of quality, and cannot be deemed constitutionally sufficient.
ISSUE THREE
¶32 Whether the District Court erred in concluding that the State has violated Article X, Section 1(3), by not paying its share of the cost of the public school system,
¶33 In light of our holding on issue number two above, we decline to address this issue.
ISSUE FOUR
¶34 Whether the District Court erred in concluding that the State has violated Article X, Section 1(2), by not recognizing the cultural heritage of American Indians in its educational goals.
¶35 The District Court concluded that the State has failed to recognize the distinct and unique cultural heritage of American Indians and that it has shown no commitment in its educational goals to the preservation of Indian cultural identity, as demanded by Article X, Section 1(2). It relied on our opinion in Helena Elementary, when we held that the “provision establishes a special burden in Montana for the education of American Indian children which must be addressed as part of the school funding issues.” Helena Elementary, 236 Mont. at 58, 769 P.2d at 693. The State does not contest these conclusions. “This Court will not endeavor to review a matter when appellant has directed no argument toward it.” Sands v. Nestegard (1982), 198 Mont. 421, 428, 646 P.2d 1189, 1193. Therefore, we merely recognize that the findings and conclusions of the District Court regarding Article X, Section 1(2), of the Montana Constitution stand unchallenged.
ISSUE FIVE
¶36 Whether the October 2005 effective date of the District Court’s opinion should be moved up to May 2005.
¶37 We affirm the District’s Court’s selection of October 1,2005, as the effective date of its order.
ISSUE SIX
¶38 Whether the current school funding system violates the Equal Protection Clause of the Montana Constitution.
¶39 The District Court concluded that the present system violates Article X, Section 1(3), of the Montana Constitution (basic system of free quality public schools), but not Article II, Section 4 (equal protection). Since we have concluded that the present system violates Article X, Section 1(3), we need not address the question of whether the system complies with the Equal Protection Clause of Article II, Section 4. See Helena Elementary, 236 Mont. at 55, 769 P.2d at 691. Similarly, when the District Court concluded that the present system violates Article X, Section 1(3), it need not have addressed the Coalition’s equal protection claim. Accordingly, we direct the District Court to vacate its conclusion that the system does not violate the Equal Protection Clause of Article II, Section 4, of the Montana Constitution.
ISSUE SEVEN
¶40 Whether an award of attorney fees is appropriate.
¶41 The District Court denied an award of attorney fees to the Coalition, citing our denial of attorney fees in Helena Elementary, 236 Mont. at 58-59, 769 P.2d at 693. It is true that we denied attorney fees in that case. However, as the Coalition correctly points out, our decision there was based on the “common fund” doctrine. Since Helena Elementary, we decided Montanans for the Responsible Use of the School Trust v. State ex rel. Board of Land Commissioners, 1999 MT 263, ¶ 67, 296 Mont. 402, ¶ 67, 989 P.2d 800, ¶ 67 (Montrust). In Montrust we awarded attorney fees pursuant to the private attorney general doctrine. The District Court erred in not addressing this change in our attorney fees jurisprudence. Therefore, we vacate the District Court’s denial of attorney fees and remand for reconsideration in light of Montrust.
JUSTICES COTTER, WARNER, NELSON, DISTRICT JUDGE RICE, sitting for FORMER JUSTICE REGNIER, concur.
This contrasts constitutional mandates, for example, that “the legislature shall provide for a Department of Agriculture ...”, Art. XII, Sec. 1, and that “[t]axes shall be levied by general laws [that the Legislature passes] for public purposes,” Art. VIII, Sec. 1, 3, neither of which implicates individual rights guaranteed under the Constitution. See Montana Stockgrowers Ass’n v. Dep’t of Revenue (1989), 238 Mont. 113, 117, 777 P.2d 285, 288; Kottel v. State, 2002 MT 278, ¶ 52, 312 Mont. 387, ¶ 52, 60 P.3d 403, ¶ 52.
Although we conclude that the above-enumerated findings of fact illustrate a constitutionally deficient educational system, we do not necessarily affirm every finding in the District Court’s opinion. See Order, November 9, 2004, No. 04-390.
|
[
15,
23,
-25,
-19,
52,
-6,
16,
27,
-66,
78,
-24,
46,
57,
1,
30,
-68,
-43,
-5,
16,
2,
-57,
28,
-33,
37,
24,
5,
0,
20,
-53,
-15,
53,
-23,
0,
-21,
1,
48,
-24,
42,
29,
-2,
27,
-26,
-71,
-34,
-23,
38,
30,
14,
-15,
38,
10,
-20,
-6,
0,
24,
37,
-22,
-4,
-105,
33,
-7,
40,
31,
-14,
28,
-73,
-16,
50,
-20,
-24,
-45,
90,
-29,
-23,
-12,
5,
13,
-45,
-31,
92,
9,
2,
-19,
-32,
33,
-26,
-42,
-14,
-58,
10,
-49,
-31,
-31,
25,
28,
-22,
28,
-27,
57,
-16,
1,
0,
-9,
17,
5,
-17,
-44,
17,
70,
18,
-13,
21,
-38,
-73,
-24,
23,
-48,
55,
24,
5,
9,
39,
7,
42,
12,
-24,
22,
16,
-3,
14,
-40,
30,
-52,
-51,
-27,
21,
-33,
-19,
24,
-3,
24,
-36,
65,
-59,
35,
-50,
-26,
-23,
6,
-50,
26,
-5,
32,
27,
4,
-49,
-14,
-26,
9,
-58,
12,
-8,
-64,
62,
21,
37,
13,
9,
7,
19,
14,
1,
-4,
15,
63,
32,
-39,
20,
25,
0,
-11,
0,
68,
-42,
-26,
13,
34,
12,
-6,
-3,
-36,
-10,
-31,
-53,
14,
19,
28,
36,
-35,
-31,
-28,
6,
84,
46,
-10,
1,
9,
-64,
-4,
-29,
19,
20,
35,
35,
-15,
-8,
-21,
13,
14,
-4,
-1,
4,
17,
51,
-53,
-41,
16,
67,
-14,
-45,
37,
58,
53,
-21,
42,
1,
-107,
14,
2,
-37,
-28,
-7,
1,
-16,
55,
13,
-21,
-47,
22,
-10,
10,
8,
34,
30,
34,
-10,
1,
4,
-15,
-29,
16,
-10,
27,
-44,
-16,
21,
-8,
39,
-7,
15,
-8,
31,
-3,
-7,
-35,
6,
10,
-81,
35,
-16,
32,
-10,
-9,
47,
29,
30,
-25,
-6,
-7,
-19,
-49,
-22,
63,
14,
37,
-46,
16,
47,
-12,
-40,
-19,
24,
20,
34,
23,
16,
-7,
5,
12,
-39,
-1,
12,
-87,
60,
52,
-40,
-66,
15,
-42,
-6,
4,
-30,
44,
-28,
-19,
-10,
7,
-15,
-32,
-27,
-17,
10,
1,
-23,
59,
-12,
40,
-5,
43,
-27,
32,
27,
27,
4,
11,
22,
-66,
-13,
-23,
0,
45,
-3,
24,
63,
-8,
-36,
-20,
7,
7,
-4,
-24,
26,
4,
-51,
-27,
-13,
22,
6,
-21,
-56,
6,
-63,
73,
-2,
0,
5,
4,
21,
-61,
36,
-31,
23,
-32,
0,
40,
25,
14,
43,
51,
-47,
4,
-13,
-4,
15,
43,
-44,
39,
-33,
26,
0,
6,
-27,
24,
-32,
5,
-17,
5,
-9,
25,
51,
4,
-5,
-17,
-54,
1,
13,
-7,
-10,
14,
9,
-2,
10,
-10,
1,
14,
-29,
-2,
34,
-34,
16,
-19,
32,
-63,
-18,
-13,
-25,
13,
-2,
-52,
-53,
-3,
22,
8,
16,
-27,
-64,
13,
5,
-15,
2,
24,
40,
-73,
-13,
-8,
-6,
16,
-36,
5,
-9,
-14,
35,
-3,
28,
4,
15,
-10,
13,
-7,
-9,
-31,
29,
-70,
86,
51,
39,
-70,
4,
3,
5,
18,
-17,
-47,
-29,
-15,
45,
11,
14,
-34,
14,
-23,
59,
-54,
-10,
-7,
34,
37,
-41,
53,
-3,
-20,
11,
-10,
-72,
-48,
6,
-9,
-10,
-9,
-44,
27,
-3,
49,
16,
-46,
33,
19,
-19,
-29,
34,
-4,
77,
-20,
2,
-36,
36,
-34,
-34,
16,
-2,
-36,
35,
85,
60,
3,
35,
33,
43,
10,
-11,
22,
-43,
31,
45,
26,
-16,
-24,
-17,
24,
46,
64,
-2,
-46,
-5,
2,
13,
-38,
29,
4,
-15,
10,
30,
5,
15,
12,
5,
-38,
7,
-47,
15,
17,
-9,
-54,
4,
-33,
-44,
22,
57,
-62,
-11,
14,
8,
32,
-22,
-12,
-42,
78,
-45,
32,
54,
21,
-29,
-21,
23,
-67,
-16,
-4,
47,
-15,
9,
-24,
24,
5,
10,
41,
-5,
8,
5,
0,
-3,
3,
0,
75,
5,
1,
-4,
-11,
4,
46,
-62,
-2,
-39,
18,
-41,
29,
-35,
-49,
9,
30,
-36,
14,
-28,
-22,
-38,
-23,
-19,
19,
21,
-11,
46,
-1,
9,
12,
17,
4,
-32,
-24,
88,
2,
-43,
-27,
33,
-23,
-50,
-40,
0,
-31,
1,
8,
-44,
58,
-35,
-20,
48,
-74,
22,
1,
-44,
22,
-19,
-21,
-9,
-19,
26,
64,
-8,
39,
-19,
0,
-38,
-57,
2,
-61,
19,
8,
42,
8,
34,
1,
-44,
97,
-20,
34,
-25,
11,
-53,
2,
7,
-51,
31,
4,
17,
7,
-43,
-26,
2,
-30,
52,
0,
61,
-23,
0,
-28,
11,
-62,
-77,
-14,
-20,
-8,
-28,
18,
26,
-16,
12,
12,
-10,
32,
-49,
-4,
18,
-22,
6,
-11,
26,
-37,
61,
-1,
-7,
89,
-40,
-4,
48,
-13,
2,
-37,
38,
33,
4,
-54,
-18,
17,
9,
19,
-27,
-105,
-35,
-31,
34,
57,
-1,
20,
9,
-63,
38,
-17,
-50,
8,
-1,
-15,
-8,
114,
-8,
-82,
-28,
35,
-14,
-20,
-5,
-54,
-45,
-1,
25,
-63,
-14,
14,
8,
18,
61,
-8,
-10,
-32,
6,
62,
-10,
10,
57,
32,
4,
-13,
-51,
-37,
1,
70,
36,
-14,
58,
-6,
12,
-22,
32,
-24,
4,
-9,
-6,
37,
-43,
-16,
31,
-50,
-43,
13,
-13,
10,
58,
33,
-10,
-19,
-16,
-8,
17,
32,
17,
-2,
-35,
14,
-32,
-55,
3,
70,
50,
-7,
-33,
-18,
-46,
46,
9,
30,
1,
-24,
-15,
-57,
54,
-28,
13,
90,
7,
-12,
-38,
46,
77,
22,
48,
-13,
56,
10,
-24,
46,
0,
4,
34,
-12,
-26,
20,
9,
-28,
21,
31,
7,
25,
-16,
-11,
15,
-16,
-24,
9,
-34,
-24,
-41,
58,
2,
-1,
-42,
-7,
-6,
16,
-3,
-70,
-39,
-44,
-8,
14,
-32,
-1,
-60,
22,
-4,
45,
-56,
-33,
25,
-32,
18,
25,
-14,
3,
-37,
-36,
-56,
49,
18,
2,
46,
-1,
-28,
-22,
-22,
-30,
-32,
3,
47,
-12,
30,
0,
-26,
0,
26,
26,
55,
10,
-4,
8,
-54,
33,
-54,
20,
33,
-9,
-35,
-16,
-53,
-21,
41,
-51,
56,
0,
-5,
-34,
33,
-20,
-49,
-38,
-9,
26,
38,
-62,
-63,
-48,
6,
34,
13,
-74,
13,
-7,
-10,
-8,
17,
-29,
-12,
13,
-18,
7,
-28,
1,
32,
-14,
2,
9,
-7,
-43,
-8,
30,
15,
0,
-46,
35,
14,
28,
-48,
39,
-28,
12,
3,
-46,
-26,
-2,
-23,
37,
-40,
12,
59,
37,
-42,
-3,
-21,
65,
28,
5,
-12,
12,
-7,
26,
59,
17,
22
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 The Missoula Irrigation District (“MID”) appeals from various Notices of Entry of Decrees Granting Exclusion from the MID for numerous petitioners, entered in the Fourth Judicial District Court. We affirm in part and reverse in part.
ISSUES
¶2 We restate the issues as follows:
¶3 1. Did the District Court deny the MID due process by granting petitions for exclusion from the MID based upon unsupported findings of fact submitted by the Standing Master?
¶4 2. Did the District Court have the authority to order the MID to reimburse back taxes?
¶5 3. Did the District Court abuse its discretion when it refused to allow the MID to amend its response?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 The MID was created in 1922 as a successor to a consolidated irrigation ditch, in order to operate, maintain, and administrate the irrigation district. Although there was a statutory process which predated the MID’s creation by which landowners could petition for exclusion from an irrigation district, in 1997 the Montana legislature enacted temporary legislation which made the exclusion requirements less stringent within a certain type of irrigation district. From 1997 until December 31, 1998, approximately 550 parties petitioned for exclusion of their land from the MID, pursuant to § 85-7-1846, MCA (1997). The District Court consolidated the petitions for purposes of determining the issues of law and developing a procedure to dispose of each petition.
¶7 Beginning with Geil v. Missoula Irrigation Dist., 2002 MT 269, 312 Mont. 320, 59 P.3d 398 (“Geil I”), and continuing through RSG Holdings v. Missoula Irrigation Dist., 2004 MT 214, 322 Mont. 369, 96 P.3d 1131 (“RSG”); Geil v. Missoula Irrigation Dist., 2004 MT 217, 322 Mont. 388, 96 P.3d 1127 (“Geil II”); and Larango v. Missoula Irrigation Dist., 2004 MT 369, 324 Mont. 534, 103 P.3d 552 (“Larango”), this Court has considered multiple issues raised by and between the various parties. A detailed factual background was set forth by this Court in Geil I and has been elaborated upon as necessary in each subsequent proceeding. We continue to do so here, setting forth such facts as are pertinent to this Opinion in the Discussion below.
STANDARD OF REVIEW
¶8 We review a district court’s findings of fact to determine whether they are clearly erroneous. Matter of Clark Fork River Drainage Area (1992), 254 Mont. 11, 14, 833 P.2d 1120, 1122 (“Clark Fork”) (citation omitted). A finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if our review of the record convinces us that the court made a mistake. Clark Fork, 254 Mont. at 14-15, 833 P.2d at 1122 (citation omitted).
¶9 In reviewing a district court’s conclusions of law, our standard of review is plenary and this Court must determine whether its interpretation of the law is correct. RSG, ¶ 9 (citation omitted). We review a district court’s denial of a motion to amend the pleadings to determine whether the district court abused its discretion. RSG, ¶ 9 (citation omitted).
DISCUSSION
ISSUE ONE
¶10 Did the District Court deny the MID due process by granting petitions for exclusion from the MID based upon unsupported findings of fact submitted by the Standing Master?
¶11 Under § 85-7-1802(2), MCA (1997), owners of tracts of land three acres or smaller which are not served by any irrigation district canal, system, facility, or other undertaking may petition to exclude their tracts from an established irrigation district, pursuant to the process set forth in § 85-7-1846, MCA (1997). A person holding title to a tract of land meeting the criteria in § 85-7-1802(2), MCA (1997), may petition the district court for an exclusion. The petition must include, among other things, a statement that the tract’s users do not and cannot feasibly obtain water from the irrigation district through existing irrigation works. Section 85-7-1846(1)(e), MCA (1997).
¶12 In its Brief, the MID draws our attention to nineteen petitions which the MID claims were improperly excluded from the MID because the Standing Master made inaccurate or unsupported findings of fact which were in turn upheld by the District Court. Calling our attention to a map entitled “Missoula Irrigation District Petitioners and Access as Surveyed by Missoula City/County Health Department Summer of 1995,” which was submitted by the MID and admitted as Exhibit 1 in the proceedings below (“Map”), the MID argues that the Map clearly shows that the properties affected by these particular nineteen petitions all have actual access to MID ditches, and thus fail to qualify for exclusion under § 85-7-1846, MCA (1997).
¶13 The MID points out that 119 of the 549 petitions for exclusion were heard, and argues that the court should not have granted the 430 petitions which were not heard. Furthermore, it argues that all 549 petitions were granted regardless of whether the petitioners presented any evidence in support of their petitions. In fact, argues the MID, even when evidence was presented which showed that a petitioner had access to the MID’s irrigation works, the Standing Master still granted the petition, in contravention of the applicable statutes.
¶14 Although it appears that the MID would like this Court to reverse and remand the orders granting exclusion on all 549 petitions, the MID has not put forth any grounds for us to do so. It is undisputed that many petitioners did not appear for a hearing. However, under § 85-7-1846(5), MCA (1997), it is only if the MID files a valid objection to a particular petition that a hearing need be held in the first place. Moreover, § 85-7-1846(6), MCA (1997), provides that the court shall grant a petition for exclusion if no objections are filed within fifteen days of the filing of such a petition. Therefore a perfectly good reason supports granting many of the petitions without hearing.
¶15 Our review of the record indicates that many of the 549 petitions were not disputed by the MID at the hearings level, and were thus never scheduled for hearings. It is not this Court’s obligation to comb the record for each of the 549 petitions to determine which were heard, which were scheduled for a hearing but not heard, and which were never scheduled for a hearing at all. A district court’s decision is presumed to be correct and it is the appellant who bears the burden of establishing that the court erred. Hawkins v. Harney, 2003 MT 58, ¶ 35, 314 Mont. 384, ¶ 35, 66 P.3d 305, ¶ 35. The MID, as the appellant, has the burden of establishing error by the trial court in each case it contests. Thus, we will limit our inquiry to those nineteen petitions specifically disputed in the MID’s Brief.
¶16 Concerning the nineteen petitions the MID disputes, the MID argues that the Map shows these properties to have access to the MID’s irrigation ditches. It maintains the Standing Master erroneously found that these properties did not have access to the MID’s works, which caused the District Court to conclude incorrectly that these petitions were eligible for exclusion pursuant to §§ 85-7-1802 and - 1846, MCA (1997).
¶17 The Map illustrates the MID’s coverage area and designates the MID’s ditches and other irrigation works. Additionally, all the parcels of land represented within the 549 petitions are numbered and color-coded on the Map. The Map’s key explains the color codes, with various designations including “Access, Using,” “Access, Not Using,” and “No Access, Not Using.” Ten of the nineteen properties specifically disputed in the MID’s Brief are designated on the Map-the MID’s own Exhibit-as “No Access, Not Using,” and an eleventh is designated partially as “No Access, Not Using”and partially as “Not Surveyed.” In other words, the MID has placed into evidence a document which illustrates that these properties have “No Access” and are “Not Using” the MID’s irrigation ditches. Thus for the MID to claim now that the Standing Master erred by finding that these properties have no access and are not using the MID’s irrigation ditches is illogical and unsupported by the MID’s own Exhibit. As the MID has not provided any evidence that the District Court erred in upholding the Standing Master’s findings and conclusions with respect to these eleven petitions, Hawkins, ¶ 35, we therefore affirm the District Court on all but the eight petitions which are discussed below.
¶18 The petitioners behind the eight petitions remaining to be resolved in this Opinion filed the necessary documents and requested exclusion of their properties from the MID in a timely manner, pursuant to §§ 85-7-1802 and -1846, MCA (1997). Although the MID apparently asserted at the hearing level that several of these petitions were deficient, it has not supplied such petitions for our review. We turn to the record as it appears before us to determine whether the MID correctly contends that the findings regarding these particular petitions were erroneous.
Petitions 176, 290, and 369
¶19 The findings specific to Petitions 176, 290, and 369 were grouped with several other petitions which have not been specifically disputed by the MID on appeal. Regarding this group of petitions, the Standing Master found that the MID’s objection to the exclusion of the properties, filed July 1, 2003-which asserted that each “Petition is deficient in that it offers insufficient proof and documentation that the Petitioners cannot feasibly obtain water from the Irrigation District through existing irrigation works”-did not provide sufficient evidence that these properties are served by the MID’s works. The Standing Master further found that the MID’s works do not touch these properties, these properties had private land and/or public roadways between them and the nearest MID works, and these petitioners do not and cannot feasibly obtain water from the MID irrigation works.
¶20 The Map illustrates that the property at issue behind Petition 176 has a MID ditch running across it and is designated on the Map as “Access, Using.” The Map further reveals that Petition 176 consists of three parcels-two of which are designated as “Access, Using” and one of which is designated “No Access, Not Using.” With respect to Petition 290, the Map illustrates that this property also has a MID ditch running across it and is listed on the Map as “Access, Using.” The Map also reveals that Petition 290 consists of two parcels-one of which is designated as “Access, Not Using,” and one of which is designated as “No Access, Not Using.” Finally, the Map illustrates that the property at issue behind Petition 369 has two MID ditches upon the property, and the Map indicates this property has access, but is not currently using, the MID’s works.
¶21 The MID maintains that if the Standing Master had compared Petitions 176, 290, and 369 to the Map, it would have been apparent to the Standing Master that the properties affected by these Petitions all have access to the MID’s ditches. Although each of those petitioners asserted in their petitions that they did not have access to the MID’s works, the MID’s evidence-the Map-shows otherwise. None of these petitioners made themselves available for their scheduled hearings.
¶22 A finding of fact will not be reversed absent a showing that it is clearly erroneous. Clark Fork, 254 Mont, at 14, 833 P.2d at 1122. A finding is clearly erroneous if it is not supported by substantial evidence. Clark Fork, 254 Mont. at 14-15, 833 P.2d at 1122. The MID presented the Map as evidence of its position. With no testimony from petitioners and no evidence in the record to rebut the Map, we determine that there is no substantial evidence to support the exclusion of the parcels within Petitions 176, 290, and 369 from the MID. The District Court therefore erred in upholding the findings as they relate to those three petitions, and we accordingly reverse the decision in regards to the two parcels within Petition 176 designated on the Map as “Access, Using,” the parcel within Petition 290 designated on the Map as “Access, Not Using,” and the sole parcel represented by Petition 369. The remainder of the group of petitions which was grouped with Petitions 176, 290, and 369 in the Standing Master’s findings remain unaffected by this reversal and are hereby affirmed.
Petition 324
¶23 Petition 324 was also grouped in the Standing Master’s findings with several other petitions which have not been specifically disputed by the MID. In regards to these petitions, the Standing Master found that the MID’s objection to the exclusion of the properties, filed July 1, 2003-which stated that the “Petition is deficient in that it offers insufficient proof and documentation that the Petitioners cannot feasibly obtain water from the Irrigation District through existing irrigation works”-did not provide sufficient evidence that the properties are served by the MID’s works. Again, the MID presented no evidence other than the Map at the December 8, 2003, hearing in support of its objections. Based upon the Map’s designations for the properties in this grouping, the Standing Master found that they were surrounded by private land and public roadways and were not touched by any MID works, and the petitioners had no feasible way to obtain water from the MID’s works.
¶24 The MID argues that the Standing Master inappropriately issued a blanket finding which included Petition 324, because the Map indicates that the property represented by Petition 324 not only has access to a MID ditch, but is actually using the irrigation water. The property owners behind Petition 324 did not appear at a hearing, although their petition was called for a hearing, and the MID did not put on further evidence about the property represented in Petition 324 aside from the Map.
¶25 On the Map, Petition 324 consists of four parcels of land. Two parcels are designated “Access, Using” and two are designated “No Access, Not Using.” With no evidence presented to rebut the Map, we determine that there is no substantial evidence to support the exclusion of that portion of Petition 324 which is designated as “Access, Using” from the MID. The District Court erred in upholding the findings as they relate to this petition and we accordingly reverse the decision in regards to Petition 324 only, and only in regards to the two parcels in Petition 324 which are designated as “Access, Using” on the Map. The remainder of the group of petitions which was grouped with Petition 324 in the Standing Master’s findings remain unaffected by this reversal and are hereby affirmed.
Petition 330
¶26 Specific to Petition 330, which consists of eight tracts of land owned by the Missoula Housing Authority (“MHA”), the Standing Master found that MHA does not and cannot feasibly obtain water from the MID irrigation works for Tracts 1 through 6 and Tract 8 because the MID’s works do not touch these tracts, which are surrounded by city streets and private property, and these tracts are not “served by any district canal, system, facility, or other undertaking” of the MID. The Standing Master further found that the closest MID ditch to Tracts 1 through 6 and Tract 8 is across several parcels of private property and a public street.
¶27 The MID argues that Petition 330 should not have been granted an exclusion, because a MHA representative testified that one of the parcels covered by Petition 330 had a MID ditch running along the “west quarter” of the property. MHA responds that it requested exclusion of eight tracts of land from the MID, and ultimately it was granted exclusion of seven of those tracts, because the Standing Master concluded that one of the eight tracts had feasible access to the MID’s irrigation works. Neither the MID nor the record in this case clarifies whether the tract which was not granted exclusion was the particular tract which the MHA witness testified had ditch access. The MID has failed to meet its burden of establishing error. See Hawkins, ¶ 35. The record being devoid of any meaningful way in which we could review this particular exclusion, we affirm the District Court regarding the exclusion of seven of the eight tracts of land included in Petition 330.
Petition 362
¶28 Specific to Petition 362, the Standing Master found that owner Bradley Owens does not and cannot feasibly obtain water from the MID works as reflected on the Map because his property is not “served by any district canal, system, facility, or other undertaking” of the MID, and the MID’s works do not touch the property or serve it. The Standing Master further found that Owens had never used the MID’s works, and private property separates his property from the closest MID ditch.
¶29 At the hearing, Owens appeared and testified. He said that he had not used the MID’s works in the fourteen years that he had owned this property. Owens explained that he was an engineer and opined that from a strict “technical” standpoint, he believed any property could access the MID’s works, although it might not be financially feasible to do so. He further testified that, while the boundary of his property was approximately 25 feet from the center of a MID ditch, the land which he would have to cross was currently private property.
¶30 Owens’ testimony and the Map are consistent with the Standing Master’s finding that the MID’s works do not touch Owens’ property. A finding that Owens could not access the MID’s works without crossing private land is sufficient to uphold the District Court’s conclusion that Petition 362 was properly excluded from the MID. Thus, we affirm the District Court regarding Petition 362.
Petition 509
¶31 Specific to Petition 509, the Standing Master found that owner William T. Larsen (d/b/a Larsen Investments) does not and cannot feasibly obtain water from the MID’s works as reflected on the Map because his property is not “served by any district canal, system, facility, or other undertaking” of the MID. The Standing Master further found that the MID’s works do not touch Larsen’s property or serve it, Larsen has never used the MID’s works, and Larsen’s property is surrounded by city streets and private property, with the closest MID ditch across several parcels of property and a public street.
¶32 The Map indicates that Petition 509 covers four parcels, two of which are labeled “No Access, Not Using,” and two of which are labeled “Access, Not Using.” The MID claims the Standing Master’s findings are erroneous and argues that Larsen testified that he had access to an irrigation ditch on at least one of the properties covered by his petition.
¶33 We have reviewed Larsen’s testimony. Larsen conceded that from at least one of the properties covered by Petition 509, he had access to the MID’s works, although he was not using the water. Under § 85-7-1846(l)(e), MCA (1997), a tract’s user must state that the user does not and cannot feasibly obtain water from the irrigation district through existing irrigation works. (Emphasis added.) In Larsen’s case, he conceded that he can feasibly obtain water on some, but not all, of his tracts. The Map indicates that two of his parcels are “Access, Not Using,” and the remaining parcels covered by Petition 509 do not have access. Thus, no substantial evidence supports the Standing Master’s finding to the contrary. As the MID’s Map indicates that two of Larsen’s parcels are “No Access, Not Using,” we reverse the District Court’s upholding of the Standing Master’s findings in regards to Petition 509, only with respect to the two parcels which are designated “Access, Not Using” on the Map. We affirm the exclusion of the two “No Access, Not Using” parcels from the MID.
Petition 545
¶34 Specific to Petition 545, the Standing Master found that owners Norman and Mary Taylor do not and cannot feasibly obtain water from the MID irrigation works because the MID’s works do not touch the property or serve it, and the property is not “served by any district canal, system, facility, or other undertaking” of the MID. The Standing Master found that the Taylors used the MID’s works from 1965 until 1985, but that the Taylors’ property is six miles from the Clark Fork source and the Taylors are “one of the last eligible ditch users.” Based upon Norman Taylor’s testimony, the Standing Master found that, due to waste and debris entering the ditch along its route, the Taylors had continuous problems with their pipes clogging and pumps burning out. The Taylors sought to install a settling pond, a deeper screened pump intake, or a diversionary barrier to reduce the blockages, but MID personnel would not permit it. The Taylors ceased using the ditch water and installed an irrigation system which draws on their well water instead. The Standing Master concluded that because the MID did not provide useable ditch water to the Taylors, their use of the ditch water is not feasible.
¶35 The MID argues that, in spite of Taylors’ admission that Taylors had actually used the MID’s works from 1965 to 1985, the Standing Master erroneously found that they could not feasibly obtain water from the MID, and that the MID’s works did not “touch the property.” The MID points out that Taylor further testified, “There is no question that we have access to the water,” and “technically, we have access. It’s not that problem. It’s the question of the quality of the ditch water by the time it reaches us.”
¶36 While the Taylors may have a legitimate reason for choosing not to use the MID’s works, under § 85-7-1846(1)(e), MCA (1997), the users of a tract must establish both that they do not and that they cannot feasibly obtain water from the irrigation district through existing irrigation works. (Emphasis added.) The Taylors admitted that they can feasibly obtain water from the MID’s works. There is no provision under this particular statutory scheme for exclusion based on the quality of the water obtained. The District Court therefore erred when it upheld the Standing Master’s findings relating to Petition 545, and we accordingly reverse in regards to this petition.
¶37 In summary, we reverse the District Court on Petitions 369 and 545. We affirm in part and reverse in part on Petitions 176, 290, 324, and 509. We affirm the District Court on Petitions 330 and 362, and all the remaining petitions which were not specifically addressed in this Opinion.
ISSUE TWO
¶38 Did the District Court have the authority to order the MID to reimburse back taxes?
¶39 The District Court ordered that back taxes shall be reimbursed to the Petitioners as of the date they filed their petitions. The MID objected, arguing that the District Court lacked the authority to order a refund of taxes, the relief available under the applicable statutes did not include a refund of taxes, the applicable statutes did not establish a protest fund, and none of the petitioners argued that the assessments were unlawful in any manner. Respondents, claiming that district courts have the authority to grant this relief even though such relief was not sought by the petitioners, put forth the same arguments we found unpersuasive in RSG and Geil II on this issue.
¶40 Our holdings in Geil II, ¶ 18, and RSG, ¶ 18, apply here to the remaining petitioners. Absent explicit authorization from the legislature, we have concluded that the judiciary has no power to refund taxes paid without protest. Tax refunds are a matter of legislative discretion. Therefore, we conclude that the District Court improperly ordered the MID to refund paid taxes from the excluded tracts of land, and we reverse the District Court on this Issue.
ISSUE THREE
¶41 Did the District Court abuse its discretion when it refused to allow the MID to amend its response?
¶42 The MID reiterates the arguments which we found unpersuasive in Geil II, ¶¶ 20-22, and RSG, ¶¶ 20-22. We remain unpersuaded. For the reasons set forth in these previous Opinions, we conclude the District Court did not abuse its discretion when it denied the MID’s motion to amend its response, and we therefore affirm the District Court.
CONCLUSION
¶43 For the foregoing reasons, we affirm in part and reverse in part on Issue One, reverse on Issue Two, and affirm on Issue Three.
CHIEF JUSTICE GRAY, JUSTICES WARNER and RICE concur.
|
[
16,
56,
24,
-22,
8,
5,
-7,
41,
-5,
64,
-56,
-2,
9,
-7,
-13,
-18,
14,
-18,
45,
-3,
-28,
-18,
13,
4,
3,
7,
-46,
-22,
0,
-16,
25,
19,
-7,
-7,
-17,
-10,
24,
28,
9,
-10,
-7,
-13,
-9,
-30,
2,
62,
-6,
-29,
6,
0,
10,
-33,
-56,
15,
27,
-8,
6,
-36,
-58,
-5,
-28,
27,
23,
45,
37,
37,
-43,
6,
8,
-35,
-44,
8,
-5,
-39,
90,
9,
54,
-12,
-14,
38,
-39,
42,
-5,
-49,
51,
-15,
-74,
34,
31,
29,
-26,
-42,
7,
5,
9,
-14,
22,
1,
-17,
-5,
-37,
-7,
32,
6,
1,
-61,
-30,
28,
42,
18,
25,
20,
-47,
-19,
-47,
21,
-14,
27,
-29,
-30,
-23,
-47,
-34,
19,
-18,
-4,
-21,
18,
-41,
0,
-44,
-8,
23,
-7,
36,
1,
1,
-28,
49,
49,
-16,
15,
23,
-16,
28,
4,
42,
15,
-26,
-23,
17,
10,
9,
0,
36,
-27,
38,
-56,
11,
-2,
35,
24,
9,
-8,
-17,
36,
18,
-32,
-7,
-22,
77,
-19,
-27,
37,
28,
-66,
14,
-2,
30,
4,
-17,
12,
51,
-4,
1,
30,
-3,
13,
7,
19,
-16,
-52,
-17,
-41,
-9,
10,
18,
28,
-23,
13,
-26,
17,
2,
5,
53,
14,
-28,
14,
-13,
-46,
17,
-5,
-19,
3,
-10,
-37,
-10,
33,
-24,
14,
25,
37,
4,
33,
-70,
-2,
-22,
12,
35,
-12,
-6,
-10,
36,
9,
86,
4,
32,
29,
-17,
59,
8,
-3,
-44,
10,
32,
85,
-37,
-56,
-10,
-26,
-40,
-60,
13,
-7,
8,
8,
5,
-8,
-68,
-46,
60,
-19,
26,
-21,
-49,
-9,
4,
13,
21,
-12,
-10,
54,
10,
-2,
-28,
-61,
-18,
8,
18,
31,
-16,
-4,
-5,
22,
-21,
21,
35,
46,
-35,
17,
-36,
-6,
-24,
-28,
-4,
6,
-37,
-28,
40,
42,
-66,
4,
-2,
4,
39,
-26,
-34,
33,
7,
43,
39,
53,
-46,
4,
-42,
16,
5,
-11,
85,
16,
36,
4,
76,
-20,
-89,
29,
-15,
-17,
-10,
33,
-12,
18,
-47,
-1,
50,
-21,
37,
-63,
-17,
-8,
18,
-8,
2,
-1,
12,
38,
-10,
-15,
21,
5,
25,
75,
-4,
18,
14,
-28,
-10,
-1,
-13,
-33,
0,
18,
-61,
-77,
-50,
2,
-27,
-17,
11,
-55,
-59,
23,
27,
12,
34,
46,
21,
20,
-60,
-16,
-19,
11,
17,
12,
47,
24,
26,
27,
-36,
-74,
59,
8,
-58,
42,
-21,
-29,
15,
6,
-15,
42,
40,
46,
36,
-10,
8,
-12,
49,
-18,
-17,
-6,
17,
-49,
3,
-13,
-20,
24,
-11,
-40,
10,
23,
-8,
-59,
-19,
-40,
-21,
-3,
44,
38,
0,
16,
-20,
16,
10,
-15,
-49,
39,
-6,
-7,
-72,
33,
-6,
-15,
-4,
-23,
-16,
-54,
7,
0,
34,
0,
17,
20,
-77,
-13,
10,
50,
-29,
-25,
24,
-45,
-40,
83,
10,
-2,
-14,
-9,
4,
-7,
27,
28,
-16,
53,
-19,
3,
26,
55,
-15,
-2,
-24,
0,
1,
-24,
-3,
-4,
-14,
31,
-43,
24,
29,
36,
-37,
45,
0,
-25,
-34,
-24,
17,
-47,
64,
1,
5,
0,
-5,
-37,
-16,
-8,
18,
4,
-38,
14,
8,
-41,
26,
14,
-65,
27,
25,
-30,
-21,
38,
-20,
-3,
-12,
-15,
-25,
6,
-5,
-20,
56,
50,
-13,
-1,
-30,
-48,
-38,
-42,
45,
39,
-11,
-8,
12,
-1,
41,
9,
-35,
-3,
-45,
-55,
-18,
-25,
-8,
-32,
-25,
46,
-14,
29,
-26,
-56,
-24,
-4,
7,
43,
0,
-8,
25,
7,
-29,
-72,
-15,
-6,
-29,
-19,
19,
-73,
14,
-33,
-11,
-9,
22,
38,
-40,
-34,
-19,
-33,
-54,
47,
-8,
5,
24,
-20,
0,
-9,
-32,
23,
-4,
-5,
-8,
29,
-33,
-7,
4,
20,
40,
-20,
8,
15,
-31,
8,
-5,
-19,
-46,
3,
41,
72,
-1,
16,
18,
-55,
32,
-12,
-14,
8,
17,
-23,
-18,
9,
-44,
14,
-18,
-35,
-35,
-21,
-4,
-51,
-9,
-3,
5,
13,
-32,
22,
43,
-16,
-28,
4,
-24,
-36,
29,
-22,
22,
-18,
42,
78,
3,
-62,
34,
-1,
-9,
-27,
26,
-59,
49,
16,
61,
12,
-30,
29,
53,
41,
13,
-2,
-19,
-47,
-15,
35,
44,
-72,
30,
11,
-4,
3,
-33,
-5,
-21,
7,
65,
27,
68,
42,
27,
-7,
62,
15,
25,
-4,
21,
-36,
28,
38,
-64,
-36,
29,
8,
65,
-4,
-28,
42,
-33,
-31,
41,
48,
42,
-22,
27,
-2,
-27,
-38,
-11,
29,
-48,
-14,
-18,
4,
-81,
42,
43,
-23,
-65,
-41,
-46,
37,
-32,
-2,
19,
20,
14,
44,
-1,
50,
24,
-22,
16,
24,
16,
40,
-39,
34,
11,
14,
-34,
0,
-4,
-27,
2,
36,
-72,
14,
-34,
20,
-10,
-9,
17,
11,
-23,
40,
1,
-35,
14,
-22,
5,
5,
44,
-6,
-31,
-24,
37,
-46,
-53,
10,
10,
-10,
-15,
-32,
-75,
-37,
-10,
3,
31,
53,
23,
27,
-8,
-28,
30,
-36,
33,
23,
-12,
29,
-46,
-17,
-20,
-4,
38,
45,
-10,
21,
-9,
-12,
7,
27,
-34,
-46,
36,
34,
72,
10,
-27,
44,
-15,
-66,
-42,
19,
24,
-6,
7,
28,
31,
32,
-60,
41,
45,
-14,
34,
48,
-35,
-31,
4,
38,
-23,
-42,
-26,
-41,
-41,
-55,
0,
1,
2,
23,
16,
19,
0,
29,
9,
11,
50,
4,
-48,
-7,
30,
81,
51,
66,
-3,
20,
-20,
14,
28,
10,
-11,
67,
12,
-3,
29,
14,
12,
14,
-1,
33,
2,
-32,
48,
-24,
16,
21,
-14,
-10,
15,
55,
26,
2,
18,
-25,
-34,
-42,
17,
-24,
-2,
-77,
-48,
-3,
-13,
-9,
-7,
-20,
-18,
25,
-35,
20,
5,
-5,
-30,
-2,
-25,
-21,
-20,
-33,
-2,
-8,
-1,
66,
-30,
58,
-23,
-11,
-41,
2,
-47,
-7,
17,
51,
22,
11,
34,
9,
-9,
40,
-8,
25,
-53,
21,
-24,
-22,
46,
14,
24,
17,
23,
-22,
3,
-4,
13,
-15,
-25,
24,
85,
16,
-37,
38,
24,
-55,
-20,
12,
-50,
14,
-58,
-28,
-11,
5,
-5,
32,
-36,
-18,
-8,
15,
72,
50,
-41,
-4,
-29,
-25,
-6,
19,
-16,
-27,
6,
49,
-1,
4,
-36,
-41,
34,
24,
11,
-4,
8,
17,
-92,
34,
21,
-7,
15,
-5,
-63,
-10,
1,
14,
23,
-42,
14,
10,
-9,
-28,
-56,
-28,
-6,
-14,
-6,
18,
-39,
-2,
-26,
2,
-27,
11
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Tom and Suzanne Hanson (Hansons) appeal the First Judicial District Court’s grant of summary judgment to Water Ski Mania Estates. We affirm.
ISSUES
¶2 A restatement of the issues is:
¶3 1. Did the District Court err when it granted summary judgment?
¶4 2. Did the District Court err when it determined that the Hansons “sold their property on the west end” of Serenity Lake?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 In 1990, the Hansons bought approximately 80 acres of land in the Helena Valley near Helena, Montana. On the eastern forty acres, they built a water ski lake, known as Serenity Lake, and established a five-lot minor subdivision named Water Ski Mania Estates (WSME). In conjunction with the development of WSME, Tom Hanson (Tom) drafted restrictive covenants which were recorded on November 5, 1991. These covenants, which expressly ran with the land, provided that no more than six landowners would be allowed to use Serenity Lake. The pertinent covenant here stated: “Five (5) landowners shall be owners of lots in Water Ski Mania Estates and one landowner shall be the owner of a single family dwelling built on property immediately west of the lake. ” The parties have referred to the single landowner who was to build on the west shore of the Lake as “the sixth landowner.”
¶6 Hansons initially lived on Lot 1 and sold Lots 2 through 5 between 1991 and 1994. Thus, for the first few years, only five landowners used the Lake. In 1996, Hansons decided to sell Lot 1 and begin building a new home. Tom testified that originally they had intended to build on the west side of Serenity Lake as “the sixth landowner”, but changed their minds and decided to build on the southern end of the Lake instead. He explained that after the covenants were recorded, circumstances led him to build his boat dock on the southeast shore of the Lake. Once the dock was in place, the Hansons wanted their home near it. They determined that while they had retained sufficient property on the west side of the Lake to build the house there, it would be too close to the home built by one of the buyers of the western half of the land, and too far from their dock.
¶7 Asa result of the proposed sale of Lot 1 and the intended location change of the site for their home, Tom called a meeting of all WSME lot owners. At the meeting he asked the landowners for their thoughts regarding the proposed re-location of his house. Most of the property owners approved of the change. The Heeneys, with whom the Hansons had previous disputes, requested that the commercial ski usage on the Lake be reduced to accommodate a sixth landowner. Tom indicated he did not think that the covenants required that but “as a conciliatory measure,” he would reduce the ski school usage from twenty to sixteen hours per week. The Heeneys then gave their consent to Hansons’ decision to build their home on the south side of the Lake. As a result of the Heeneys’ request at the 1996 meeting, Hansons reduced the ski school hours from 1996 through 2000 but in 2001, a ski school policy statement indicated that the ski school hours would be 21 hours per week.
¶8 At some time after the 1996 meeting, four of the WSME landowners filed an amendment to the restrictive covenants to specify that the Hansons were the sixth landowners with lake use rights. In 2000, the Heeneys filed suit against these landowners, challenging the amendment. The landowners subsequently withdrew the amendment and the action between the Heeneys and the remaining WSME landowners was dismissed voluntarily and without prejudice. The amendment to the covenants was deemed void.
¶9 Subsequently, in these proceedings, these same four WSME landowners filed affidavits indicating that at the time they purchased their property, they understood that the Hansons were the “sixth landowner” referenced in the restrictive covenants, and that they approved the re-location of the Hansons’ home from the west side to the south side of Serenity Lake. The Heeneys did not file such an affidavit.
¶10 The Hansons completed their home on the south side of Serenity Lake in 2002. In April 2002, they filed this action, seeking a judgment declaring that under the restrictive covenants, they, as the sixth landowner, have the right to use Serenity Lake. The Heeneys appeared and opposed the request for declaratory relief. Ultimately, the Heeneys moved for summary judgment. In December 2003, the District Court granted their motion, concluding that the restrictive covenants precluded the Hansons from using the Lake. The court determined that the statute of frauds applied to the restrictive covenants, and that they could be amended only by way of written instrument or by an executed oral agreement. It further concluded that neither an alleged oral agreement or the doctrine of equitable estoppel would take the matter out of the statute of frauds’ application. Finally, pertinent to the second issue raised by Hansons, the court stated in its decision that the Hansons “sold their property on the west end” of Serenity Lake. The Hansons filed a timely appeal.
STANDARD OF REVIEW
¶11 Our standard of review of appeals from summary judgment is de novo. We apply the same criteria applied by the district court pursuant to Rule 56(c), M.R.Civ.P. The moving party must establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Once the moving party has met its burden, the opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. We review a district court’s conclusions of law to determine whether the court’s conclusions of law are correct. Fair Play Missoula v. City of Missoula, 2002 MT 179, ¶ 12, 311 Mont. 22, ¶ 12, 52 P.3d 926, ¶ 12 (citing Enger v. City of Missoula, 2001 MT 142, ¶ 10, 306 Mont. 28, ¶ 10, 29 P.3d 514, ¶ 10).
DISCUSSION
¶12 Hansons argue that the District Court erroneously granted summary judgment in light of the existence of genuine issues of material fact. Hansons claim that they did not transfer their sixth landowner use right to the buyers of the western forty acres, as alleged by the Heeneys. They claim, therefore, that this is a material fact in dispute. Hansons also maintain that they established the sixth landowner use right for themselves in the restrictive covenants, and that they subsequently obtained oral agreement from all WSME members to allow them to use their right on the south rather than the west side of the Lake. Hansons assert that because the Heeneys disagree, the facts need to be resolved by way of trial.
¶13 We note initially that while the District Court stated in its Order that Hansons “sold their property on the west end,” this was neither a legal finding nor a legal conclusion, and it is not dispositive of Hansons’ property ownership. If, as argued by Hansons, they retained land on the west side of Serenity Lake and choose to build a single family dwelling there in accordance with the WSME covenants, nothing in the District Court’s Order of Summary Judgment precludes them from doing so.
¶14 As to the Hansons’ argument that they established themselves as the sixth landowner in the covenants and that they obtained oral agreement from the WSME landowners to move the location of their home, the District Court concluded that “Section VI(f) ... of the covenants clearly provides that the sixth lake use right belongs to the owner of property west of the Lake, rather than specifically to the Hansons. There also is no provision in the covenants for transferring a lake use right from one piece of property to another. [The Heeneys] correctly argue that because the language is clear and unambiguous, the Court must apply the language as written and cannot resort to extrinsic evidence of the intent of the parties.”
¶15 We conclude the District Court correctly analyzed the written covenants. Regardless of the Hansons’ intent at the time the covenants were written and executed, the Hansons are not identified as the sixth landowner. We construe restrictive covenants under the same rules as are applied to contracts. Windemere Homeowners Ass’n Inc. v. McCue, 1999 MT 292, 297 Mont. 77, 990 P.2d 769. When the language of a contract is clear and unambiguous, the language alone controls and there is nothing for the court to construe or interpret. Morning Star Enterprises v. R. H. Grover (1991), 247 Mont. 105, 111, 805 P.2d 553, 557.
¶16 Moreover, as determined by the District Court, under the covenants there is no method by which the sixth landowner lake use rights expressly granted to a parcel of “property immediately west of the lake” could be transferred to a parcel of property on the south end of the Lake. The covenants provide that the rights and obligations thereunder are to run with land for a specified amount of time “unless an instrument signed by majority of the landowners of the lots has been recorded, agreeing to change said covenants in whole or part.” It is undisputed that no such instrument has been filed with the Clerk and Recorder of Lewis and Clark County.
¶17 Section 28-2-903, MCA, provides:
(1) The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent:
(d) an agreement... for the sale of real property or of an interest therein.
¶18 The Heeneys argued, and the District Court agreed, that the right to use the Lake was a right that, under the express language of the covenants, ran with the land, and therefore was an interest in real property. As a result, under the statute of frauds, any transfer of this right from one parcel to another had to be in writing. See Silva v. McGuinness (1980), 189 Mont. 252, 615 P.2d 879 (The right to a roadway granted in sales agreements is an interest in real property and an oral agreement to change the exit of the roadway is barred by the statute of frauds). See also § 70-17-101, MCA. The court concluded, and the parties did not dispute, that no such written transfer occurred. ¶19 The court also recognized, however, that under § 28-2-1602, MCA, “a contract in writing may be altered... by an executed oral agreement ...” Therefore, the District Court analyzed whether the purported oral agreements between the Hansons and the WSME landowners had been fully executed.
¶20 It is well established that the essential elements of a contract, whether written or oral, are: 1) identifiable parties capable of contracting; 2) consent of these parties; 3) a lawful object; and 4) sufficient cause or consideration. Section 28-2-102, MCA. The District Court concluded that there was no evidence of consideration given to the landowners for the covenant modification and as a result, the modification benefitted the Hansons only. Without consideration, there can be no oral contract. Without an oral contract, there can be no executed oral contract. The District Court’s conclusion that consideration was absent is supported by the record. Moreover, the Hansons’ brief on appeal does not specifically challenge this finding; rather, they focus in their appeal upon the District Court’s conclusion that equitable estoppel does not apply.
¶21 The Hansons maintain that because they relied on oral agreements with the WSME landowners and re-located their home as a result of these agreements, the Heeneys should be equitably estopped from denying them their sixth landowner lake use right, now that the home has been completed. However, as correctly noted by the District Court, “where a case is clearly within the statute of frauds, equitable estoppel is inapplicable, except in situations when the statute would otherwise operate to perpetuate a fraud.” Austin v. Cash (1995), 274 Mont. 54, 62, 906 P.2d 669, 674. This exception has no application here.
¶22 For the foregoing reasons, we conclude that the District Court did not err in granting summary judgment.
CONCLUSION
¶23 Affirmed.
JUSTICES LEAPHART, WARNER and NELSON concur.
Water Ski Mania Estates (WSME) was the named Defendant but the actual opponents to the Hansons’ requested relief are Brian and Linda Heeney, owners of one of the WSME lots. This Opinion will refer to the Heeneys, rather than WSME, when appropriate.
Hansons subsequently sold the western forty acres to two individuals. Neither of these individuals nor the land they purchased are a part of the case before us. Tom testified, however, that the Hansons retained a small parcel of land along the southwestern edge of Serenity Lake on which they could have built their home.
|
[
14,
91,
13,
-40,
-1,
-18,
41,
122,
32,
-18,
-15,
12,
37,
34,
58,
-39,
-35,
-42,
-28,
20,
27,
-42,
-33,
-71,
-7,
2,
29,
8,
11,
4,
59,
-29,
-11,
-34,
19,
43,
-4,
24,
-36,
-4,
-47,
18,
-26,
-10,
35,
29,
38,
-25,
1,
-8,
65,
4,
13,
-19,
19,
-16,
-23,
2,
-43,
10,
-56,
-35,
-14,
34,
44,
33,
50,
-6,
77,
0,
-38,
-8,
-47,
22,
8,
33,
10,
56,
-30,
-26,
-15,
18,
50,
-20,
-69,
-54,
24,
-28,
45,
15,
-10,
-78,
-9,
-30,
-17,
39,
57,
-41,
-55,
-3,
28,
9,
67,
29,
-32,
-36,
-56,
17,
58,
17,
-3,
42,
29,
17,
-9,
3,
24,
-2,
-9,
0,
-45,
7,
-15,
-23,
-46,
-59,
13,
-10,
-31,
0,
-39,
-21,
-2,
13,
-25,
8,
-36,
-51,
6,
-43,
27,
44,
-8,
-54,
-3,
-5,
4,
-47,
-24,
-44,
-6,
1,
28,
-11,
31,
-68,
-5,
7,
31,
9,
21,
-24,
-42,
8,
-38,
3,
56,
22,
5,
0,
60,
-19,
-62,
-32,
48,
9,
-5,
-19,
-15,
-20,
49,
26,
77,
37,
-50,
-49,
25,
-29,
6,
9,
21,
-82,
-14,
-10,
-14,
-23,
-21,
25,
-24,
-3,
-8,
12,
-37,
-10,
15,
3,
-48,
15,
55,
-8,
14,
19,
-17,
-43,
7,
0,
26,
-2,
-21,
-29,
39,
-8,
14,
19,
-80,
-49,
11,
-16,
12,
-16,
-27,
-5,
33,
59,
0,
-3,
10,
18,
-36,
-47,
-42,
0,
-49,
1,
5,
2,
-13,
-21,
-19,
3,
-70,
-59,
-7,
32,
24,
15,
-24,
-13,
-44,
-27,
32,
12,
17,
-53,
-32,
2,
-9,
-27,
-3,
13,
10,
25,
-11,
-12,
-39,
-23,
13,
-26,
31,
28,
30,
0,
71,
-12,
-12,
4,
-25,
5,
-83,
12,
-30,
18,
17,
-31,
-7,
-1,
10,
-62,
-37,
-40,
15,
-27,
45,
32,
32,
25,
-17,
64,
34,
49,
30,
31,
-16,
6,
-16,
41,
-33,
-14,
-5,
39,
54,
-1,
26,
29,
-68,
29,
1,
-40,
-24,
61,
-58,
45,
-12,
-3,
34,
-14,
57,
-98,
-56,
28,
-41,
-11,
64,
-63,
-5,
24,
7,
5,
-6,
-29,
4,
59,
-25,
-17,
10,
-5,
-22,
-14,
4,
4,
37,
23,
-13,
-11,
-26,
64,
39,
-34,
18,
2,
-39,
59,
-23,
35,
85,
-19,
4,
39,
-59,
51,
-10,
6,
74,
40,
35,
20,
26,
-38,
-11,
0,
19,
-41,
-37,
22,
6,
-30,
-21,
0,
-1,
-44,
22,
30,
31,
-13,
-23,
-8,
40,
16,
0,
-21,
-55,
-49,
52,
-71,
14,
15,
-15,
-19,
0,
50,
-8,
-7,
39,
-32,
-20,
1,
4,
12,
-2,
52,
-56,
30,
-30,
6,
16,
-22,
-25,
34,
-61,
28,
4,
17,
-11,
-22,
-50,
-14,
-11,
-4,
20,
-40,
26,
27,
-60,
-11,
30,
11,
58,
-24,
43,
27,
-13,
28,
51,
-9,
25,
-15,
-4,
-31,
4,
15,
-29,
34,
9,
0,
-5,
59,
-20,
55,
16,
-6,
12,
-28,
-37,
3,
9,
-11,
-22,
6,
37,
7,
26,
70,
7,
-56,
-11,
-48,
12,
28,
21,
-8,
24,
-31,
57,
31,
-27,
24,
7,
14,
22,
9,
60,
-24,
-1,
20,
-71,
1,
14,
-58,
0,
45,
15,
0,
-27,
-16,
8,
-11,
53,
-5,
-7,
-56,
-32,
5,
1,
-6,
-32,
-18,
7,
-15,
-3,
23,
7,
-30,
-30,
-10,
3,
52,
34,
-51,
60,
-6,
30,
-4,
-21,
54,
5,
-1,
-40,
-43,
-23,
9,
47,
62,
-1,
-25,
23,
-2,
48,
-15,
-9,
-25,
-29,
-5,
-21,
-64,
-6,
-4,
-16,
-10,
-30,
22,
-17,
-4,
-8,
-16,
-39,
31,
42,
7,
-28,
-8,
14,
-41,
-28,
10,
-19,
-1,
53,
36,
-39,
-69,
-10,
-34,
-4,
-13,
9,
30,
-22,
12,
-24,
5,
-31,
3,
33,
32,
4,
52,
32,
-38,
44,
-5,
6,
28,
34,
-3,
-39,
-2,
-24,
-4,
-55,
-14,
-24,
-45,
0,
-18,
55,
-18,
-26,
20,
-50,
-6,
-6,
-21,
-81,
3,
-2,
-16,
5,
5,
21,
-7,
-15,
7,
-10,
-48,
69,
-11,
-3,
-10,
-6,
17,
-24,
8,
38,
-13,
-45,
-51,
-1,
-35,
-26,
7,
24,
-12,
-6,
45,
-21,
-5,
53,
-6,
16,
69,
62,
-29,
6,
-22,
21,
10,
41,
-8,
4,
20,
-18,
10,
24,
-10,
-24,
6,
-40,
5,
-27,
0,
8,
17,
23,
-11,
-8,
69,
54,
7,
-4,
10,
-14,
48,
33,
-26,
-28,
58,
6,
-29,
-17,
25,
-26,
-21,
-83,
0,
11,
-17,
-42,
-20,
-28,
71,
-24,
31,
1,
10,
52,
25,
-14,
22,
27,
-52,
27,
-28,
-58,
31,
9,
-5,
26,
-17,
40,
-17,
1,
-20,
-18,
67,
-16,
-25,
-27,
47,
-26,
-5,
10,
15,
-44,
40,
46,
-45,
20,
-10,
27,
-4,
43,
21,
-45,
33,
-24,
-24,
22,
-7,
13,
25,
-43,
-20,
-46,
-25,
-19,
-18,
40,
-11,
26,
43,
-60,
21,
-17,
2,
-11,
-9,
19,
27,
-37,
-4,
-36,
31,
25,
67,
46,
-11,
-63,
-19,
14,
1,
-1,
-37,
2,
-26,
16,
-28,
40,
28,
16,
-22,
32,
-30,
-3,
-28,
68,
28,
37,
16,
-34,
-19,
46,
-32,
-9,
55,
0,
-78,
43,
29,
51,
-8,
-44,
-13,
-22,
6,
9,
-35,
19,
-20,
4,
26,
-63,
19,
48,
-2,
-12,
24,
-61,
3,
54,
33,
67,
-4,
-11,
34,
8,
-40,
43,
1,
7,
62,
55,
-10,
0,
58,
-31,
-6,
-55,
-34,
-22,
-26,
51,
26,
-27,
5,
-6,
-14,
4,
59,
0,
-50,
-2,
-36,
4,
-44,
-44,
0,
11,
-49,
-21,
-32,
-4,
46,
-23,
-8,
-7,
-12,
-25,
21,
-5,
-3,
4,
-20,
8,
-11,
-34,
-68,
-70,
-23,
-16,
112,
18,
-1,
-43,
28,
-9,
11,
-56,
-29,
-25,
90,
-68,
32,
-3,
16,
-16,
26,
43,
-4,
-13,
-48,
44,
-32,
5,
61,
40,
-19,
56,
-53,
-6,
-11,
6,
48,
15,
31,
16,
10,
-14,
13,
-38,
-29,
-53,
-13,
-1,
64,
-4,
-42,
17,
18,
-24,
4,
-46,
-10,
23,
1,
-6,
34,
6,
30,
5,
-12,
-5,
20,
37,
-33,
5,
20,
19,
-26,
-58,
-24,
-28,
0,
55,
-24,
-4,
-19,
-23,
-13,
-25,
-49,
10,
-10,
-33,
-18,
0,
43,
1,
21,
34,
-6,
2,
-5,
31,
-6,
-38,
-6,
-22,
41,
2,
50,
13,
-20,
28,
17
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Jacob H. Zakovi (Zakovi) appeals from the judgment entered in the Fifth Judicial District Court, Jefferson County, finding him guilty of driving under the influence of alcohol, a misdemeanor, in violation of § 61-8-401, MCA (2001), and operating a motorcycle without an endorsement, a misdemeanor, in violation of § 61-5-111, MCA (2001), challenging the District Court’s denial of his pretrial motions. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err when it denied Zakovi’s motion to suppress evidence obtained without the investigative advisory required by § 46-5-402(4), MCA (2001)?
¶4 2. Did the District Court abuse its discretion when it denied Zakovi’s motion in limine which challenged the officer’s administration of an HGN test?
¶5 3. Did the District Court err when it denied Zakovi’s motion to suppress the results of his blood alcohol test for failure to give his consent?
¶6 4. Did the District Court err when it denied Zakovi’s motion to suppress the results of his blood alcohol test on the grounds that the sample was collected in violation of § 61-8-405(1), MCA?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 On July 11,2001, at approximately 11:00 p.m., Montana Highway Patrolman Joe Cohenour (Officer Cohenour) responded to a motorcycle accident in the McClellan Creek area of Jefferson County. Dispatch advised Officer Cohenour that the victim, later identified as Zakovi, was injured and that an ambulance and Quick Response Unit were en route to the scene. Upon Officer Cohenour’s arrival, he observed two emergency medical technicians loading Zakovi into the ambulance. Officer Cohenour requested Zakovi’s name and address, and noted that Zakovi’s breath smelled of alcohol and his speech was slurred. Zakovi was then transported to St. Peter’s Community Hospital (St. Peter’s) in Helena. Officer Cohenour conducted an investigation at the scene and determined to further question Zakovi at the hospital. There he initially spoke with the EMTs who had transported Zakovi by ambulance, and they indicated that Zakovi’s breath smelled like alcohol. Officer Cohenour then approached Zakovi, who had been placed in a hospital trauma room, and asked him about the accident. Zakovi responded that he was going too fast and “went off the corner and wrecked.” As Zakovi spoke, Officer Cohenour noted a more prominent odor of alcohol on his breath, and observed his eyes were bloodshot and watery. This prompted Officer Cohenour to ask whether Zakovi had been drinking before the accident. Zakovi replied that he drank “three or four beers [before the accident], but it feels like a lot more now.” Officer Cohenour administered a Horizontal Gaze Nystagmus (HGN) test, and Zakovi showed nystagmus in six areas. Officer Cohenour advised Zakovi of the Montana Department of Justice Noncommercial Implied Consent Advisory, which informed him that he was under arrest for driving under the influence. Officer Cohenour then requested Zakovi’s consent to draw a blood sample for the purposes of a blood alcohol content (BAC) test. Zakovi responded that he was drunk and there was no reason to obtain further proof of his intoxication. Officer Cohenour asked two more times for a sample, to which Zakovi replied similarly. After Officer Cohenour explained that a sample was nonetheless necessary, Zakovi agreed to provide one. Analysis of the sample established that Zakovi’s BAC was 0.16. Amy Binfet (Binfet), the phlebotomist on duty at St. Peter’s, heard Zakovi state that he was drunk at the time of the accident. At neither the accident scene nor at the hospital did Officer Cohenour give Zakovi the investigative stop advisory pursuant to § 46-5-402(2), MCA (2001).
¶8 On July 13, 2001, Zakovi was charged in the Jefferson County Justice Court with driving under the influence of alcohol, and driving under the influence of alcohol per se, in violation of §§ 61-8-401 and 61-8-406, MCA (2001), and operating a motorcycle without an endorsement, in violation of § 61-5-111, MCA (2001). On July 26,2002, Zakovi filed pretrial motions to suppress the State’s evidence of his intoxication, which the Justice Court denied. Zakovi was then found guilty in the Justice Court of violating §§ 61-8-401 and 61-5-111, MCA (2001), and he appealed to the District Court. Following a suppression hearing, the District Court denied Zakovi’s pretrial motions. Zakovi then entered a conditional plea of guilty to the charges, reserving his right to appeal from the District Court’s suppression rulings, which he now challenges.
STANDARD OF REVIEW
¶9 Our review for rulings on motions to suppress is twofold. First, we review the court’s findings of fact to determine whether they are clearly erroneous-that is, whether the findings are supported by substantial evidence, whether the district court misapprehended the effect of the evidence, and whether the Court is nevertheless left with a definite and firm conviction that the district court made a mistake. State v. Gouras, 2004 MT 329, ¶ 12, 324 Mont. 130, ¶ 12, 102 P.3d 27, ¶ 12. Second, we engage in a plenary review of the conclusions of law to determine whether the district court’s interpretation of the law is correct. Gouras, ¶ 12.
¶10 We review a district court’s denial of a motion in limine for an abuse of discretion. Henricksen v. State, 2004 MT 20, ¶ 46, 319 Mont. 307, ¶ 46, 84 P.3d 38, ¶ 46; Bramble v. State, 1999 MT 132, ¶ 16, 294 Mont. 501, ¶ 16, 982 P.2d 464, ¶ 16. The authority to grant or deny a motion in limine “rests in the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties.” Hulse v. State, Dept. of Justice, Motor Vehicle Div., 1998 MT 108, ¶ 15, 289 Mont. 1, ¶ 15, 961 P.2d 75, ¶ 15. Thus, the district court has broad discretion to determine the admissibility of evidence, see Pula v. State, 2002 MT 9, ¶15, 308 Mont. 122, ¶ 15, 40 P.3d 364, ¶ 15, and we will not overturn the district court’s ruling unless the party alleging error proves an abuse of discretion and resulting error. Henricksen, ¶ 46.
DISCUSSION
¶11 Did the District Court err when it denied Zakovi’s motion to suppress evidence obtained without the investigative advisory required by § 46-5-402(4), MCA (2001)?
¶12 Zakovi argues that Officer Cohenour’s questioning and the administration of field sobriety tests at the accident scene and hospital resulted in a seizure of his person, provided particularized suspicion to Officer Cohenour that Zakovi had committed a crime, and therefore constituted an investigative stop. He argues therefrom that Officer Cohenour was obliged to provide him the investigative stop advisory set forth in § 46-5-402(2), MCA (2001), and Officer Cohenour’s failure to do so required that the evidence obtained from the investigation, that being the officer’s notation of alcohol on Zakovi’s breath, his observation of Zakovi’s bloodshot and watery eyes, and the resulting field sobriety test results, must be suppressed pursuant to our holding in State v. Krause, 2002 MT 63, 309 Mont. 174, 44 P.3d 493.
¶13 Section 46-5-402(4), MCA (2001), provides:
Stop and frisk. A peace officer who has lawfully stopped a person under 46-5-401 or this section:
(4) shall inform the person, as promptly as possible under the circumstances and in any case before questioning the person, that the officer is a peace officer, that the stop is not an arrest but rather a temporary detention for an investigation, and that upon completion of the investigation, the person will be released if not arrested. [Emphasis added.]
¶14 Section 46-5-401(1), MCA (2001), provides:
Investigative stop and frisk. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
¶15 We first note that Zakovi’s argument is premised on the incorrect assumption that police are required to give the investigative stop advisory whenever they have particularized suspicion that a crime has been committed or initiate a seizure. To the contrary, § 45-5-402(4), MCA (2001), requires an officer to provide the investigative stop advisory only when making an investigative stop upon observing the circumstances that create a particularized suspicion. That did not occur here.
¶16 Officer Cohenour’s initial contact with Zakovi was made after the officer was called to the scene of a reported accident. He did not stop Zakovi after observing him in “circumstances that create a particularized suspicion” that Zakovi had committed, or was committing, a crime. Section 46-5-401(1), MCA (2001). Indeed, Zakovi was already stopped. Upon Officer Cohenour’s arrival at the scene, Zakovi was under the control of emergency personnel and was being loaded into an ambulance for transport to St. Peter’s. After Zakovi was taken from the scene, Officer Cohenour completed his investigation of the scene and proceeded to St. Peter’s to continue his inquiry of Zakovi. Again, at the hospital, Zakovi was under the care and control of hospital personnel who had placed him in a trauma room to be treated for his injuries. Officer Cohenour testified that his practice is to ask a doctor or nurse for permission before entering a hospital room to question an accident victim, as he considers himself a guest of the hospital, regardless of his duties as an investigating officer. Thus, again, Officer Cohenour initiated no “stop” of Zakovi at the hospital for purposes of the investigative stop advisory statute.
¶17 We therefore conclude that Officer Cohenour’s questioning and administration of field sobriety tests at the accident scene and at the hospital did not constitute an investigative stop that triggered the investigative stop advisory under § 46-5-402(4), MCA (2001), and the District Court properly denied this motion.
¶18 Did the District Court abuse its discretion when it denied Zakovi’s motion in limine which challenged the officer’s administration of an HGN test?
¶19 Zakovi argues that the District Court abused its discretion when it denied his motion in limine and admitted the HGN results from Officer Cohenour’s testing. He notes that Officer Cohenour deviated from the standard four second interval requirements established by the National Highway Traffic Safety Administration in its DWI Detection and Standardized Field Sobriety Training Manual (DWI Manual), which compromised the test result’s validity. He notes that the DWI Manual provides that an HGN test is only valid when “administered in the prescribed, standardized manner;... [and] if any one of the standardized field sobriety test elements is changed, the validity is compromised.” DWI Manual, p. 12 (emphasis omitted). Therefore, Zakovi claims the test results were unreliable and required exclusion.
¶20 The DWI Manual provides that an officer who suspects that an individual is driving under the influence of alcohol may administer an HGN test for the purpose of checking an individual’s eyes for distinct nystagmus at maximum deviation (Maximum Deviation test), and for the onset of nystagmus prior to forty-five degrees (Forty-five Degree test), which the DWI manual finds probative of an individual’s level of impairment. The record indicates that the District Court considered the DWI Manual’s provisions, and examined a video demonstrating Officer Cohenour’s deviation from the four second interval requirements in his usual administration of these two tests.
¶21 The District Court also considered evidence of Officer Cohenour’s extensive experience. Officer Cohenour is an eleven-year police veteran who has handled more than 450 DUI cases in his career, and teaches field sobriety testing at the State Law Enforcement Academy. In light of Officer Cohenour’s experience and training, the court found his testimony credible and concluded that his statement that valid HGN test results are obtainable despite deviation from the DWI manual’s four second interval requirements, particularly because nystagmus is more apparent in the more inebriated suspect, was correct. In this regard, the District Court also noted Officer Cohenour’s observation that Zakovi appeared more inebriated when questioned at St. Peter’s then he had at the scene of the accident.
¶22 In light of the evidence presented herein of the validity of the HGN test results, which the District Court found credible, we conclude that the District Court did not abuse its discretion when it denied Zakovi’s motion in limine and admitted the results.
¶23 Did the District Court err when it denied Zakovi’s motion to suppress the results of his blood alcohol test for failure to give his consent?
¶24 Zakovi contends that the State failed to establish that he consented to Officer Cohenour’s request to withdraw a blood sample for the purposes of a BAC test in accordance with § 61-8-402, MCA (2001). Alternatively, Zakovi argues that, if he did consent to his blood being drawn, his consent did not extend to a BAC analysis on the sample. We address each argument in turn.
¶25 Zakovi’s first argument cites § 61-8-402(1) and (4), MCA (2001), which provides:
(1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person’s blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body.
(4) If an arrested person refuses to submit to one or more tests requested and designated by the officer as provided in subsection (2), the refused test or tests may not be given ....
¶26 Although Zakovi acknowledges that his consent to have a blood sample withdrawn is implied pursuant to § 61-8-402(1), MCA (2001), he nonetheless argues that Officer Cohenour’s request for a sample violated § 61-8-402(4), MCA (2001), which allows an arrested person to refuse to submit to a test. Zakovi argues that he refused consent by questioning whether the test was necessary and admitting to drinking before the accident. He asserts that Officer Cohenour’s three requests for a sample are determinative of his failure to consent.
¶27 We note, initially, that the parties disagree about who has the burden of proving that Zakovi’s consent was voluntarily given under these statutes. Zakovi claims that the State had the burden of establishing the voluntariness of his consent, pursuant to our holdings in State v. Kirkaldie (1978), 179 Mont. 283, 587 P.2d 1298, and State v. LaFlamme (1976), 170 Mont. 202, 551 P.2d 1011. The State argues this is Zakovi’s burden pursuant to the implied consent provisions of § 61-8-402(1), MCA (2001), and our holding in State v. Turbiville, 2003 MT 340, 318 Mont. 451, 81 P.3d 475.
¶28 However, neither party cites authority directly on point. Neither Kirkaldie nor LaFlamme dealt with DUI situations involving the implied consent statute. Turbiville was a DUI case which recognized the option to refuse a blood test is a matter of grace bestowed by the Legislature, but did not address the burden of proof issue. We note that “[i]t is not this Court’s job to conduct legal research on the [parties’] behalf ... [nor] to develop legal analysis that may lend support to that position.” Johansen v. State Dept. of Natural Res. and Conservation, 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24. Further, because disposition of this issue does not turn on resolving the burden of proof question, we deem it appropriate to resolve the issue another day when we may have more complete briefing on this question. For purposes of this appeal, we will assume that the State had the burden of proving that Zakovi consented to providing the blood sample.
¶29 To determine whether a defendant voluntarily gave consent, we examine the totality of the circumstances and whether there exists substantial evidence in the record to support the court’s conclusion that the defendant’s consent was voluntary. See State v. Nelson (1997), 283 Mont. 231, 237, 941 P.2d 441, 445.
¶30 Upon examination of the record, we conclude the State offered substantial evidence establishing Zakovi’s voluntary consent. First, Officer Cohenour testified that he advised Zakovi of the right to refuse consent, pursuant to § 61-8-402(4), MCA (2001), before requesting Zakovi to sign the Consent to Blood Alcohol Examination Form (Consent Form). Second, Zakovi’s signature on the Consent Form noted his voluntariness to submit a blood sample. It states, “I, the undersigned, hereby consent to the drawing of a blood sample of the undersigned by St. Peter’s Community Hospital employees ....” Third, the State offered the testimony of Binfet that her compliance with Officer Cohenour’s request was contingent on Zakovi’s understanding of the Consent Form; that, before Zakovi acknowledged consent, she informed Zakovi that his signature on the Consent Form authorized the hospital to withdraw a blood sample and deliver it to Officer Cohenour; that she read the form to him, he understood and signed the Consent Form.
¶31 Furthermore, Zakovi’s repeated questioning about the necessity of the sample is not dispositive of the issue. His statements were not refusals of the test; he simply questioned whether Officer Cohenour needed a blood sample in light of his admission that he had been drinking prior to the accident. Following Officer Cohenour’s explanation that a test was still necessary, Zakovi proceeded to give his consent. We conclude that substantial evidence supports the District Court’s conclusion that Zakovi voluntarily gave consent to submit a blood sample.
¶32 Turning to Zakovi’s second argument, the record contradicts his contention that his consent to drawing a sample did not extend to ordering a BAC analysis. The Consent Form “authorize[d] the hospital and its employees to deliver the blood sample to any peace officer requesting the same ...,” and moreover, noted that Officer Cohenour’s signature was a request that a blood sample be drawn for the purpose of a BAC analysis. Binfet’s testimony that she advised Zakovi of this authorization and determined he understood before withdrawing a blood sample is further evidence in support of the District Court’s conclusion. We conclude that the District Court committed no error by denying Zakovi’s suppression motion on these grounds.
¶33 Did the District Court err when it denied Zakovi’s motion to suppress the results of his blood alcohol test on the grounds that the sample was collected in violation of § 61-8-405(1), MCA?
¶34 Zakovi argues that Binfet withdrew the blood sample at the direction of Officer Cohenour, and not pursuant to the supervision or direction of a physician or registered nurse in accordance with § 61-8-405(1), MCA. Zakovi argues therefore that the test results should have been suppressed. We disagree.
¶35 For the results of a defendant’s blood test to be admissible as evidence under § 61-8-404(l)(b)(ii), MCA (2001), the blood sample shall be withdrawn by a person competent to do so under § 61-8-405(1), MCA, which provides:
Only a physician or registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse, may ... withdraw blood for the purpose of determining any measured amount or detected presence of alcohol .... [Emphasis added.]
¶36 Binfet testified that, although she was advised by a secretary of the need for her assistance in withdrawing a sample of Zakovi’s blood, she was nonetheless continuously under the supervision of a registered nurse on duty in the emergency room, as her position is subordinate and requires compliance with the registered nurse’s orders under hospital policy. Thus, substantial evidence supported the District Court’s conclusion that Binfet withdrew the sample in accordance with § 61-8-405(1), MCA, and therefore we conclude there was no error in denying Zakovi’s motion to suppress the evidence on that basis.
¶37 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER and WARNER concur.
Section 45-5-402, MCA (2001), was repealed by Session Law 2003, Ch. 343, Sec. 2, but was in effect at the time.
The National Highway Traffic Safety Administration’s DWI Detection and Standardized Field Sobriety Training Manual. Session 8, is compiled from information contained within Psychophysical Tests for* DWI. Marcelline Burns and Herbert Moskowitz, June, 1977, NHTSA Report Number DOT HS-802 424; Development and Field Test of Psychophysical Tests for DWI Arrest. Burns V. Tharp and Herbert Moskowitz, March, 1981, NHTSA Report Number DOT HS-805 864; Field Evaluation of a Behavioral Test Battery for DWI. T. Anderson, R. Schweitz, and M. Snyder, September, 1983, NHTSA Report Number DOT HS-806 475.
We note that the DWI Manual states that an officer is to move the stimulus from the suspect’s nose to the suspect’s shoulder, holding the eye at that position for approximately four seconds. While administering the Forty-five Degree test, the officer is to move the stimulus toward the suspect’s eye at a speed that would take about four seconds for the stimulus to reach the edge of the suspect’s shoulder. DWI Manual, p.
|
[
2,
-5,
21,
24,
-31,
-31,
-24,
12,
-27,
36,
-42,
-35,
14,
25,
8,
-34,
5,
-4,
57,
-63,
21,
-48,
-16,
22,
-36,
-17,
-51,
-12,
-19,
-23,
10,
-31,
-14,
-78,
80,
-22,
1,
73,
-14,
4,
16,
13,
-84,
24,
-26,
7,
-28,
-2,
-26,
19,
3,
-20,
2,
14,
10,
-20,
0,
13,
-6,
-17,
-13,
29,
-6,
-10,
-11,
7,
0,
29,
-23,
12,
-37,
8,
-32,
-13,
-1,
22,
-40,
3,
-5,
6,
-49,
33,
35,
29,
39,
-15,
-23,
-14,
10,
28,
-1,
-69,
-17,
-52,
-16,
7,
29,
-8,
15,
18,
-49,
-7,
-24,
50,
-16,
2,
-50,
-37,
10,
-10,
-39,
3,
10,
-16,
18,
-27,
16,
27,
3,
10,
-19,
7,
71,
-18,
-56,
-57,
64,
2,
6,
42,
19,
13,
35,
-31,
-10,
-13,
-5,
-30,
6,
58,
1,
11,
42,
18,
17,
-50,
-9,
-15,
27,
20,
-26,
15,
-19,
-15,
-35,
17,
27,
5,
7,
47,
0,
0,
-19,
-35,
16,
20,
17,
-24,
1,
-43,
26,
0,
-12,
13,
53,
-3,
-3,
-3,
-49,
16,
-38,
35,
-10,
-17,
4,
-16,
33,
24,
0,
20,
-28,
-3,
-2,
-33,
20,
13,
-7,
45,
46,
-2,
-21,
68,
34,
-51,
26,
29,
-19,
20,
51,
-15,
25,
-43,
-5,
-5,
-20,
-25,
-3,
-6,
-24,
-22,
-2,
4,
-29,
-7,
-32,
0,
-15,
3,
-22,
-5,
4,
9,
0,
33,
1,
-42,
14,
-25,
18,
29,
-22,
-6,
-9,
-10,
20,
27,
-13,
-42,
-15,
-16,
33,
-20,
6,
-18,
-34,
-45,
23,
-18,
-14,
-12,
22,
40,
21,
44,
-24,
-35,
15,
-39,
72,
71,
-6,
-3,
-5,
-39,
-9,
1,
15,
-22,
7,
87,
20,
-25,
-2,
13,
-4,
52,
12,
37,
9,
7,
-6,
-36,
-78,
24,
17,
-56,
9,
32,
-22,
-45,
68,
48,
-7,
31,
-22,
-42,
15,
-19,
6,
22,
66,
9,
-48,
50,
55,
-10,
-12,
-14,
28,
0,
-100,
-22,
-17,
-52,
-7,
-12,
8,
-20,
28,
-21,
-19,
27,
4,
16,
1,
-45,
8,
31,
17,
-6,
-22,
-26,
11,
7,
-10,
83,
24,
38,
23,
-20,
-7,
-24,
69,
-9,
-45,
-4,
2,
-7,
43,
-36,
0,
-59,
-25,
7,
30,
-14,
20,
29,
-19,
10,
7,
-59,
0,
-31,
-25,
12,
17,
-20,
-18,
34,
-37,
20,
13,
-45,
-4,
7,
67,
-20,
-30,
39,
79,
19,
36,
-11,
17,
1,
-5,
-22,
58,
-1,
43,
-3,
67,
25,
-5,
4,
19,
4,
16,
-53,
-16,
-27,
11,
13,
38,
40,
-48,
5,
-43,
-76,
-4,
-18,
-14,
-68,
82,
6,
-11,
45,
20,
19,
0,
4,
24,
-9,
-52,
-21,
-12,
2,
-18,
12,
-28,
2,
13,
22,
-20,
-9,
0,
16,
-24,
7,
0,
14,
34,
11,
-5,
54,
-16,
4,
12,
0,
-22,
20,
-33,
1,
9,
17,
-32,
-10,
36,
-39,
-6,
0,
-30,
-22,
-27,
20,
-54,
20,
-10,
-44,
6,
-13,
8,
4,
42,
-36,
-1,
20,
-38,
39,
7,
-20,
28,
-4,
-68,
3,
4,
30,
2,
-28,
-9,
6,
-57,
33,
-55,
-29,
81,
37,
48,
-18,
-11,
63,
10,
-53,
-75,
-26,
-43,
11,
26,
19,
1,
-16,
9,
-24,
13,
-30,
-41,
-36,
-2,
-56,
10,
8,
15,
20,
-12,
-22,
7,
0,
50,
-2,
36,
-14,
-16,
-39,
9,
-8,
-48,
12,
18,
68,
41,
4,
5,
-19,
-10,
-8,
47,
38,
-46,
-18,
10,
17,
-27,
17,
-29,
-7,
7,
-37,
57,
-20,
-15,
58,
-10,
-22,
32,
-42,
-15,
-26,
-29,
-10,
14,
14,
0,
10,
-52,
-13,
41,
-76,
-26,
-39,
-44,
48,
-2,
62,
39,
32,
-26,
-17,
-44,
23,
7,
-21,
-3,
37,
91,
-9,
23,
-6,
3,
-8,
6,
16,
22,
3,
-22,
-49,
-57,
10,
13,
-24,
-75,
-2,
-19,
-3,
-52,
-24,
-36,
-28,
8,
-3,
-32,
-23,
-47,
-52,
-2,
51,
-19,
62,
-87,
-36,
66,
1,
29,
46,
-10,
-4,
54,
13,
-75,
-48,
-14,
0,
14,
-27,
-14,
2,
15,
24,
32,
21,
18,
32,
0,
11,
-19,
-20,
9,
-9,
0,
19,
-12,
-9,
-6,
-16,
36,
6,
27,
-20,
-6,
30,
-18,
-57,
-15,
-13,
3,
16,
-22,
34,
27,
30,
-58,
57,
5,
45,
-51,
54,
-13,
-21,
-9,
-16,
34,
34,
-20,
-21,
16,
1,
51,
-43,
-5,
47,
-5,
37,
-30,
16,
-4,
-9,
5,
31,
-15,
17,
-19,
-33,
-25,
13,
-18,
8,
-85,
43,
46,
-21,
-29,
-21,
21,
26,
-29,
-41,
4,
-43,
30,
13,
-40,
-10,
34,
-17,
43,
-16,
32,
30,
-16,
-38,
21,
10,
6,
20,
-38,
-19,
41,
3,
-22,
25,
44,
12,
24,
-4,
-30,
-10,
52,
48,
39,
47,
33,
-35,
44,
-72,
-66,
3,
-3,
22,
-10,
-69,
-19,
36,
-14,
-27,
27,
27,
-99,
17,
-2,
17,
28,
-17,
41,
-8,
44,
-25,
-29,
-7,
-19,
37,
30,
-7,
16,
-4,
73,
16,
-4,
14,
46,
0,
-7,
4,
24,
-20,
0,
-19,
-28,
-16,
-42,
-67,
39,
17,
-10,
36,
19,
-24,
41,
14,
32,
-26,
-18,
-27,
-5,
4,
19,
-7,
16,
-5,
3,
0,
46,
40,
26,
28,
8,
0,
0,
-9,
27,
60,
7,
0,
-2,
0,
35,
21,
-1,
-16,
-10,
38,
41,
-23,
-18,
-48,
-12,
36,
66,
4,
-16,
71,
49,
-27,
22,
29,
-62,
11,
3,
7,
10,
-35,
30,
-21,
-24,
-7,
29,
-51,
-39,
-21,
-8,
-51,
12,
41,
1,
-34,
-34,
89,
11,
16,
16,
-45,
12,
-16,
-1,
2,
45,
-65,
33,
22,
-36,
25,
-17,
12,
4,
8,
5,
-5,
-45,
-33,
31,
-10,
-31,
49,
30,
66,
-16,
12,
-33,
0,
-14,
66,
3,
31,
0,
-22,
-15,
-12,
10,
1,
-48,
-11,
3,
-17,
0,
51,
22,
36,
-1,
-52,
-6,
2,
24,
-10,
-35,
60,
19,
42,
-21,
5,
10,
36,
-5,
10,
-44,
22,
-55,
-18,
-64,
13,
10,
27,
-12,
16,
-7,
-17,
-11,
3,
53,
26,
0,
22,
-64,
-56,
32,
-29,
2,
23,
-6,
-46,
-30,
49,
-38,
-50,
-37,
30,
-29,
42,
5,
-59,
-15,
-35,
31,
25,
-23,
12,
33,
-17,
-32,
-21,
-11,
31,
36,
6,
-23,
-61,
11,
8,
45,
-20,
-28,
59,
-64,
45,
42,
-4
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶ 1 The City of Helena (City) appeals the order of the Second Judicial District Court, Silver Bow County, denying its motion for change of venue to Lewis and Clark County. We affirm.
¶2 We address the following issue on appeal:
¶3 Did the District Court err by denying the City’s motion for change of venue?
BACKGROUND
¶4 According to the pleadings, on July 13,1999, a City bus struck an overhead gas heater in the Helena bus barn, separating a gas line. The following morning, the Plaintiffs decedent, City Bus Manager Orval Meyer, activated the electric garage door opener which caused gas fumes to explode. Mr. Meyer survived for a time. He was treated at St. Peter’s Community Hospital in Helena and then transferred out of state, where he died two days later.
¶5 Defendant City is located in Lewis and Clark County and is a political subdivision of the State of Montana. Defendant Montana Power Company (Montana Power) was a Montana corporation, and its successor, Northwestern Energy, LLC (Northwestern), is a Montana limited liability company with its principal place of business in Silver Bow County.
¶6 Plaintiff Rebecca Meyer, Personal Representative of Orval Meyer’s estate (Meyer), filed a survivorship/wrongful-death action against the Defendants in Silver Bow County on July 11, 2002. The City filed a motion for change of venue to Lewis and Clark County, which was denied. This appeal followed.
STANDARD OF REVIEW
¶7 Whether a county is a proper place for trial is a question of law involving the application of the venue statutes to pleaded facts. State v. Pegasus Gold Corp. (1995), 270 Mont. 32, 35, 889 P.2d 1197, 1199 (citation omitted). Thus, our review of the trial court’s grant or denial of a motion for change of venue is plenary; we simply determine whether the court’s ruling was legally correct. Pegasus, 270 Mont, at 35, 889 P.2d at 1199. See also Gabriel v. School Dist. No. 4, Libby (1994), 264 Mont. 177, 179, 870 P.2d 1351, 1352; Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.
DISCUSSION
¶8 Did the District Court err by denying the City’s motion for change of venue?
¶9 The City first argues that two of this Court’s previous decisions, Gabriel and Wentz v. Montana Power Co. (1996), 280 Mont. 14, 928 P.2d 237, have established that the proper venue for trial of a combined survivorship/wrongfiil-death action is either the county in which the survivorship claim arose, or the county in which the wrongful-death claim arose. Pursuant thereto, the City argues that because neither claim arose in Silver Bow County, it is not a proper venue for trial of this matter.
¶10 In Gabriel, the school district, a political subdivision, was the sole defendant in the plaintiffs survivorship/wrongful-death suit. The plaintiffs decedent, Richard J. Sasse, fell from a school roof in Libby, Lincoln County, while working on a construction project for the school district. He was transported to a hospital in Flathead County where he died of his injuries. The plaintiff later filed her complaint against the school district in Flathead County. The school district moved for change of venue to Lincoln County. On the grounds that the events surrounding the injury occurred there, the survivorship claim arose there, and the school district, a political subdivision, was located there, the district court granted the motion. The district court ruled that Lincoln County was the proper place of trial under § 25-2-126(3), MCA (now § 25-2-126(2), MCA), which provided that the “proper place of trial for an action against a political subdivision is in the county in which the claim arose or in any county where the political subdivision is located.”
¶11 We acknowledged that Lincoln County was a proper venue for the action pursuant to § 25-2-126(3), MCA, because defendant school district was located there. Noting, however, that venue for the combined survivorship/wrongful-death action would lie either where the survivorship claim arose or where the wrongful-death claim arose, we concluded that Flathead County was also a proper venue for the action, because the decedent had died there. Gabriel, 264 Mont, at 179, 181, 870 P.2d at 1352,1353. Thus, we held that the district court had erred in granting the school district’s motion to change the venue to Lincoln County because “if a plaintiff files in one county where venue is proper, no motion for change of venue can be granted.” Gabriel, 264 Mont. at 179, 870 P.2d at 1352 (citations omitted) (emphasis in original). The principle that venue for a combined survivorship/wrongful-death action “can be determined on the basis of either the survivorship action or the wrongful death action” was reiterated in Wentz. Wentz, 280 Mont, at 22, 928 P.2d at 242.
¶12 Although in both Gabriel and Wentz we approved such counties as proper venues for the trial of a survivorship/wrongful-death action, in neither case did we hold that these counties were the exclusive venue options provided by the venue statutes for survivorship/wrongful-death actions. In both cases, we simply determined that the counties in which the respective plaintiffs had filed their actions were proper venues under the statutes. Thus, Gabriel and Wentz did not set forth an exclusive venue rule for survivorship/wrongful-death actions which is determinative of the issue here.
¶13 Meyer asserts that Silver Bow County is also a proper venue for her claim against the City pursuant to § 25-2-117, MCA, which provides that “[i]f there are two or more defendants in an action, a county that is a proper place of trial for any defendant is proper for all defendants ....” It is not disputed that the residence of Defendant Northwestern is Silver Bow County, its principal place of business. See Mapston v. Joint School Dist. No. 8 (1987), 227 Mont. 521, 523, 740 P.2d 676, 677 (“A corporation in Montana has only one residence. That residence is the county in which it has it’s [sic] principal place of business”). Because the “proper place of trial for a tort action is ... the county in which the defendants or any of them reside at the commencement of the action,” § 25-2-122(1)(a), MCA, Meyer argues that venue for her tort claim against Northwestern lies in Silver Bow County, where Northwestern resides, and, pursuant to § 25-2-117, MCA, her claim against co-defendant City also properly lies there. ¶14 The City acknowledges the application of § 25-2-117, MCA, to cases involving multiple defendants that include a political subdivision, a principle we stated in Weiss by and through Weiss v. State (1986), 219 Mont. 447, 450, 712 P.2d 1315, 1317, but argues that because § 25-2-126(2), MCA (venue for actions against political subdivisions), is more specific than § 25-2-122, MCA (venue for tort actions), it is entitled to application of the political subdivision provisions of § 25-2-126(2), MCA, which would require a change of venue to Lewis and Clark County. In support of this argument, the City cites Whalen v. Montana Right to Life Assoc., 2002 MT 328, 313 Mont. 204, 60 P.3d 972, in which we applied, in the context of the venue statutes, the rule of statutory construction that a more specific statute prevails over a general one. Whalen, ¶ 9. The City argues that Weiss did not consider this argument and, thus, a different outcome is required here by virtue of this rule of statutory construction.
¶15 In Whalen, a contract case, we reasoned that § 25-2-121, MCA, the venue statute for contract actions, more specifically addressed the facts pled therein than § 25-2-118(1), MCA, the venue statute for all civil actions, and, accordingly, we applied § 25-2-121, MCA. Whalen, ¶¶ 8-9. However, the venue statutes involved in this case do not address subject matter that can be compared to determine specificity in the way we compared the statutes at issue in Whalen. There, we could reason that all contract actions are civil actions, but not all civil actions sound in contract, and so it was clear that § 25-2-121, MCA, addressed contract actions more specifically than § 25-2-118(1), MCA. The subject matter of those two statutes was thus comparable, and allowed us to determine specificity, because both based their designation of venue on the same variable-the type of claim. By contrast, the statutes at issue here, §§ 25-2-126(2) and 25-2-122, MCA, base their respective venue designations upon different variables: § 25-2-126(2), MCA, addresses a particular type of defendant, but no specific type of claim; § 25-2-122, MCA, addresses a specific type of claim, but no particular type of defendant. For this purpose, therefore, it cannot be said that either § 25-2-126(2), MCA, or § 25-2-122, MCA, is more specific than the other. We thus conclude that the reasoning of Whalen is not applicable here.
¶16 The precise question before us is whether § 25-2-126(2), MCA (venue for actions against political subdivisions), prevails over § 25-2-122(l)(a), MCA (venue for tort actions) in a multiple defendant case, where one defendant is a political subdivision and another defendant is a private entity, the plaintiff has chosen to sue both defendants in the county in which the private entity resides pursuant to § 25-2-122(l)(a), MCA, and that county is neither the county in which the plaintiffs claim arose nor a county in which the political subdivision is located-those being the two venues approved by § 25-2-126(2), MCA.
¶17 We note that neither subsection of § 25-2-126, MCA, purports to prescribe the sole proper venue for an action in which the State or a political subdivision thereof is a defendant, to the exclusion of all other venue designations under the statutes. Further, we note that neither § 25-2-115, MCA (“Multiple proper counties”), nor § 25-2-117, MCA (“Multiple defendants”), textually exempts the application of § 25-2-126, MCA, from operation of the rules either sets forth. Thus, there is no statutory authority for the proposition that § 25-2-126, MCA, is a venue designation superior to the other statutes. Nor does anything in our prior venue holdings require such a conclusion. As noted, we held in Weiss that political subdivisions are subject to the operation of the multiple defendant provisions of § 25-2-117, MCA. Weiss, 219 Mont, at 450, 712 P.2d at 1317.
¶18 We thus hold that § 25-2-126(2), MCA, does not prevail over § 25-2-122(l)(a), MCA, including, as applied here, in a matter involving multiple defendants pursuant to § 25-2-117, MCA. These provisions simply provide alternative venue options to the plaintiff, which she properly exercised herein.
¶19 We affirm the District Court.
JUSTICES LEAPHART, COTTER and WARNER concur.
Following the filing of the appeal and submission for decision, Montana Power initiated a bankruptcy proceeding under 11 U.S.C. Chapter 11 in the United States Bankruptcy Court for the District of Delaware. This matter was then stayed until subsequent orders of the United States Bankruptcy Court and United States District Court withdrew the matter from the bankruptcy proceeding and returned it to the state courts.
When Meyer’s cause of action accrued, the present § 25-2-126(2), MCA, was numbered § 25-2-126(3), MCA. What was then § 25-2-126(2), MCA, was repealed in 1999. See Sec. 1, Ch. 128, L. 1999. We use the current citation in this opinion.
|
[
14,
23,
11,
-9,
-5,
-6,
-1,
7,
-18,
12,
-5,
10,
27,
-15,
-17,
-38,
-18,
38,
19,
-5,
-63,
-11,
-54,
32,
30,
-14,
-25,
-5,
-37,
-37,
36,
-66,
-25,
-3,
-4,
20,
1,
41,
-12,
-39,
21,
30,
-11,
-26,
-8,
35,
-23,
23,
30,
18,
0,
21,
-25,
34,
36,
-39,
-17,
36,
-6,
13,
36,
-3,
-30,
34,
55,
11,
32,
6,
-53,
25,
-29,
-22,
-11,
-36,
12,
23,
-28,
-3,
-45,
40,
-25,
18,
14,
-75,
-39,
-13,
-11,
-18,
6,
24,
9,
-5,
-2,
3,
11,
53,
10,
-22,
24,
-20,
-50,
-20,
-10,
20,
-55,
-28,
-22,
6,
82,
-4,
-33,
18,
-2,
-23,
-15,
55,
27,
53,
30,
14,
12,
-12,
-17,
5,
26,
-8,
23,
10,
13,
-24,
-25,
-11,
8,
-26,
58,
38,
-2,
-26,
-33,
23,
8,
-20,
35,
16,
13,
36,
2,
-1,
-36,
-5,
-15,
36,
-3,
53,
-16,
-3,
49,
-27,
-1,
29,
55,
4,
26,
4,
-14,
-1,
5,
15,
-32,
-57,
10,
0,
-1,
27,
55,
11,
-15,
-52,
-46,
-29,
-42,
-1,
18,
-5,
65,
0,
14,
70,
-6,
-3,
-18,
17,
8,
-13,
-17,
41,
16,
-10,
-18,
0,
15,
21,
35,
3,
21,
56,
11,
23,
31,
3,
11,
0,
-44,
19,
22,
-6,
-8,
-24,
-40,
8,
-15,
44,
-6,
0,
-24,
-4,
6,
-5,
27,
-33,
-18,
-2,
-12,
3,
20,
-23,
-5,
7,
-7,
3,
80,
8,
41,
37,
15,
-13,
-15,
-39,
-41,
-19,
9,
-33,
42,
31,
26,
11,
1,
7,
-47,
-46,
61,
-7,
0,
31,
19,
20,
-42,
-23,
11,
10,
-10,
16,
57,
-22,
-61,
-31,
61,
-55,
86,
37,
-12,
-8,
-24,
36,
29,
42,
-4,
24,
-47,
-18,
-45,
-29,
-21,
19,
7,
-43,
7,
26,
-13,
-43,
-25,
12,
-13,
43,
-20,
17,
-55,
-8,
-8,
35,
43,
37,
-48,
17,
24,
-11,
-42,
20,
24,
-27,
38,
0,
5,
-45,
-24,
34,
-22,
-35,
12,
-9,
-17,
15,
16,
26,
6,
-27,
25,
14,
-43,
7,
13,
-33,
5,
-24,
15,
49,
20,
5,
14,
-43,
-2,
-7,
28,
0,
-28,
-28,
1,
-30,
-23,
-15,
-4,
-19,
-44,
-21,
-20,
13,
1,
-10,
-8,
-33,
-31,
-32,
14,
-4,
46,
-25,
3,
29,
-15,
18,
-10,
-45,
-37,
-46,
56,
33,
49,
-9,
-10,
16,
51,
-57,
-34,
-20,
31,
16,
19,
-45,
-3,
12,
34,
52,
24,
-9,
-15,
-2,
-4,
-8,
13,
0,
31,
-69,
23,
-15,
-3,
-7,
-20,
-37,
0,
0,
6,
-30,
-17,
-11,
25,
-24,
-4,
-4,
-41,
30,
-43,
26,
2,
28,
-24,
20,
-19,
4,
-45,
35,
-1,
13,
-23,
-21,
-24,
21,
20,
1,
-9,
18,
8,
66,
51,
42,
21,
47,
9,
-15,
19,
-39,
15,
20,
-8,
-5,
32,
-8,
-7,
1,
29,
0,
-49,
57,
-36,
12,
21,
14,
-29,
35,
-33,
-17,
17,
-15,
6,
20,
9,
0,
34,
44,
29,
-14,
-22,
92,
-10,
-59,
-48,
42,
33,
28,
14,
-52,
-29,
-63,
-19,
-16,
1,
-22,
7,
25,
-26,
18,
66,
-9,
20,
32,
-18,
6,
8,
25,
20,
39,
0,
-7,
-12,
-97,
-17,
5,
-14,
-10,
40,
-25,
-24,
6,
21,
-5,
-30,
-25,
6,
28,
-6,
5,
0,
26,
2,
-23,
8,
-7,
-16,
2,
-11,
1,
61,
-9,
8,
12,
-2,
-7,
-4,
13,
-15,
-2,
-6,
47,
-3,
11,
2,
-7,
-6,
-48,
26,
-32,
-24,
46,
-8,
-71,
-40,
-71,
-43,
10,
-2,
15,
-5,
-10,
-8,
-16,
-50,
-43,
4,
-7,
49,
21,
-39,
42,
5,
26,
-22,
43,
-14,
-6,
-29,
0,
-18,
-57,
5,
-2,
-1,
11,
-8,
-49,
7,
-24,
-53,
-28,
-31,
-4,
1,
7,
-2,
-39,
33,
-17,
-46,
-18,
21,
5,
-30,
-3,
-36,
-46,
-17,
-10,
-23,
-3,
-63,
-40,
0,
25,
0,
34,
12,
-7,
43,
22,
12,
-57,
-48,
11,
-2,
21,
-9,
-4,
27,
48,
2,
-30,
3,
79,
24,
-6,
78,
4,
-2,
15,
-22,
-26,
-58,
-7,
68,
17,
15,
-12,
20,
5,
-16,
24,
10,
-32,
24,
-28,
3,
-13,
4,
25,
-4,
-17,
7,
-31,
-8,
19,
30,
1,
-38,
-5,
-1,
57,
32,
-5,
-29,
-5,
-25,
-33,
8,
29,
19,
44,
-39,
30,
32,
-40,
6,
-35,
12,
-14,
-7,
-19,
11,
-21,
63,
-1,
-28,
-1,
-8,
8,
-34,
2,
-20,
-9,
-31,
34,
5,
-24,
-28,
-6,
-11,
47,
-41,
19,
-13,
-11,
5,
-30,
-42,
-10,
32,
40,
-55,
-8,
17,
-33,
-35,
-19,
24,
18,
4,
-5,
-9,
-32,
1,
43,
-27,
6,
75,
-13,
8,
0,
-1,
-12,
47,
-7,
15,
17,
59,
18,
-39,
-29,
1,
28,
30,
32,
13,
-51,
-28,
-35,
38,
-7,
16,
-19,
-28,
57,
-7,
6,
34,
6,
8,
-55,
-30,
-12,
-26,
-18,
7,
22,
10,
-31,
-26,
30,
-15,
-14,
-7,
29,
15,
2,
9,
40,
18,
-7,
42,
-54,
-4,
29,
-57,
-34,
23,
-24,
14,
35,
13,
-47,
-6,
39,
5,
3,
30,
-5,
-12,
-7,
5,
-16,
58,
64,
-11,
10,
1,
16,
33,
15,
11,
5,
25,
6,
38,
31,
-57,
26,
30,
10,
31,
12,
-33,
-34,
11,
53,
-11,
27,
-29,
29,
3,
-43,
1,
-25,
8,
53,
28,
-41,
44,
34,
-18,
-26,
10,
38,
-8,
-57,
3,
-4,
-7,
-13,
18,
-26,
20,
6,
-16,
5,
24,
-26,
-28,
24,
-25,
-25,
18,
-19,
-15,
-43,
-44,
5,
10,
3,
-16,
38,
-51,
-55,
-25,
20,
-14,
1,
11,
-13,
31,
14,
-46,
-27,
28,
9,
38,
40,
-13,
7,
-44,
25,
-47,
-22,
-7,
72,
-27,
32,
6,
-25,
-29,
-2,
-7,
40,
-25,
2,
19,
-18,
38,
19,
21,
-8,
-9,
-38,
-39,
26,
-26,
-16,
-31,
4,
0,
22,
-34,
31,
-9,
-32,
-15,
43,
0,
-22,
1,
-56,
-31,
-5,
21,
0,
-34,
16,
56,
3,
9,
7,
12,
1,
57,
31,
11,
-2,
12,
-5,
-6,
5,
-15,
-79,
-7,
14,
5,
-61,
-41,
-29,
30,
30,
-10,
-32,
11,
-30,
-8,
61,
-54,
-1,
16,
23,
21,
-49,
31,
52,
-6,
-40,
8,
-16,
-19,
-22,
19,
-34,
0,
17,
-24,
-2,
18,
-38
] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 James B. Ochadleus appeals his conviction in the District Court for the Thirteenth Judicial District, Yellowstone County, of Criminal Possession of Dangerous Drugs with Intent to Distribute. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Whether the District Court properly denied Ochadleus’s motion to suppress evidence seized pursuant to a search warrant based on Ochadleus’s claim that the Postal Inspector did not have reasonable grounds to subject a suspicious package placed in the United States Mail to a canine sniff.
¶4 2. Whether the District Court properly denied Ochadleus’s motion to suppress based on his claim that law enforcement officers failed to follow the “knock and announce” rule prior to executing a warrant to search his residence.
Factual and Procedural Background
¶5 Postal Inspector Mark Morse has been employed by the United States Postal Inspectors Office for over 18 years. In that position, Inspector Morse investigates crimes in Montana that affect the United States Postal Service and the United States Mail.
¶6 On January 30, 2003, while profiling Express Mail packages at the Billings Post Office, Inspector Morse discovered a package that he thought looked suspicious. Inspector Morse testified at the suppression hearing in this matter that his suspicions were aroused because the package had a handwritten label; the zip code the customer filled out was different from the actual zip code of mailing; all of the seams of the package were taped; and the package originated from Tucson, Arizona. Inspector Morse believed these facts to be significant because Express Mail is a premium service used primarily by businesses and most express mail packages have typed labels rather than handwritten labels. In addition, Inspector Morse explained that taped seams are a common characteristic of packages containing contraband and that Tucson, Arizona is a known drug distribution area.
¶7 Based on this information, Inspector Morse spoke with the special delivery carriers and learned that they had delivered three other Express Mail packages to the same address within the past six weeks. Consequently, Inspector Morse took the package to the Drug Enforcement Agency (DEA) in downtown Billings to have them conduct a canine sniff of the package.
¶8 Officer Tim Vicars is a canine handler with the Billings Police Department. He and his dog, Duke, were called to the DEA office to investigate the suspicious package. Upon arriving at the DEA office, Officer Vicars observed four or five different-sized packages on the floor a few feet apart. Inspector Morse informed Officer Vicars that he suspected one of the packages may contain illegal drugs, but he did not tell Officer Vicars which one he suspected. Officer Vicars deployed Duke to sniff the packages and Duke alerted on the same package that Inspector Morse had brought from the Post Office.
¶9 Thereafter, Inspector Morse obtained a search warrant from the Federal Magistrate to inspect the contents of the package. In the package, Inspector Morse found 495.8 grams of a green leafy substance that field-tested positive for marijuana. Based on this evidence, Inspector Morse also obtained a warrant to search the intended destination of the package-a residence at 709 North 26th Street in Billings. Later that day, Inspector Morse, dressed as a mail carrier, delivered the package of marijuana to that location. Shortly thereafter, five officers with the Billings Police Department’s City-County Special Investigations Unit (CCSIU) and the DEA executed the search warrant.
¶10 To enter the residence, the officers had to pass through a screen door and a wooden door with a window that led into an enclosed porch. About five feet from this porch entrance was another wooden door with a window that led into the residence itself. Neither of the windows in the doors had any type of curtain or other covering. Detective Jamie Schillinger with the CCSIU entry team later testified that he thought the wooden door at the porch entrance was open prior to the officer’s entry.
¶11 At the time the officers executed the search warrant, Ochadleus, his roommate Les Wright, and another male were sitting in the living room when Wright saw someone pass by a window. Wright got up and went to the door to see who was there. When he looked through the window of the door, Wright saw a man with “a shield and a gun.” Wright remembered seeing one of the officers wearing a tie-dyed t-shirt with a marijuana leaf on it, but various officers testified that they were all wearing law enforcement attire with identifying insignia. According to Wright, he heard one of the officers say “freeze, get on the ground, you’re under arrest.” Wright claimed that after only a two-second delay from the time he saw the officers, they rammed in the door.
¶12 Detective Rick Ballantyne, who led the entry team, testified that as soon as he approached the door to the residence he saw a man at the window of the door and made direct eye contact with him. Detective Ballantyne further testified that when he called out “police, search warrant, open the door,” the man looked directly at him and moved towards the door as if to open it. However, when Detective Ballantyne again called out “police,” the man backed away from the door. As soon as he saw the man backing away, Detective Ballantyne used a battering ram on the door to gain entry into the residence.
¶13 Detective Schillinger later estimated that there was a five-to-seven second delay between the time Wright made eye contact with the officers and the time officers forced their way into the residence. In the search, officers found the package of marijuana that had just been delivered to the residence, miscellaneous drug paraphernalia, scales, cash and other illegal drugs.
¶14 On February 4, 2003, the State filed an Information charging Ochadleus with Criminal Possession of Dangerous Drugs with Intent to Distribute, a felony, in violation of § 45-9-103, MCA. Ochadleus pled not guilty to the charge and, on April 10, 2003, he filed a motion to suppress the evidence seized in the search of his home. Ochadleus argued in his motion that Inspector Morse did not have sufficient grounds to subject the package to a canine sniff prior to obtaining a search warrant and that the officers who executed the search warrant for his residence did so in violation of the federal “knock and announce” statute and the Fourth Amendment to the United States Constitution. After conducting a suppression hearing, the District Court entered its findings of fact, conclusions of law and order denying Ochadleus’s motion to suppress.
¶15 On September 10, 2003, Ochadleus filed with the District Court his Acknowledgment of Waiver of Rights by Plea of Guilty and Plea Agreement With Reservation of Right to Appeal wherein he agreed to plead guilty to the charge of Criminal Possession of Dangerous Drugs with Intent to Distribute in exchange for the State’s recommendation that the court impose a seven-year suspended sentence. Ochadleus reserved his right to appeal the District Court’s denial of his motion to suppress. The court subsequently deferred imposition of Ochadleus’s sentence for three years based upon his successful completion of numerous conditions. Ochadleus appeals the District Court’s Judgment and Order.
Standard of Review
¶16 We review a district court’s grant or denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Lanegan, 2004 MT 134, ¶ 10, 321 Mont. 349, ¶ 10, 91 P.3d 578, ¶ 10 (citing State v. Roberts, 1999 MT 59, ¶ 11, 293 Mont. 476, ¶ 11, 977 P.2d 974, ¶ 11). A trial court’s findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. Lanegan, ¶ 10.
Issue 1.
¶17 Whether the District Court properly denied Ochadleus’s motion to suppress evidence seized pursuant to a search warrant based on Ochadleus’s claim that the Postal Inspector did not have reasonable grounds to subject a suspicious package placed in the United States Mail to a canine sniff.
¶18 The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” The United States Supreme Court determined in United States v. Van Leeuwen (1970), 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282, that this included first-class mail, such as letters and sealed packages. However, the Supreme Court also held in Van Leeuwen that first-class mail is not beyond the reach of all inspection. Van Leeuwen, 397 U.S. at 252, 90 S.Ct. at 1032.
¶19 The Ninth Circuit Court of Appeals has stated that “[pjostal authorities may seize and detain packages if they have a reasonable and articulable suspicion of criminal activity.” United States v. Aldaz (9th Cir. 1990), 921 F.2d 227, 229, cert, denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). A reasonable suspicion “is formed by specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person [or object] detained is [involved] in criminal activity.” United States v. Gill (9th Cir. 2002), 280 F.3d 923, 928 (quoting United States v. Lopez-Soto (9th Cir. 2000), 205 F.3d 1101, 1105).
¶20 In the case before us on appeal, Ochadleus contends that Inspector Morse did not have a reasonable and articulable suspicion that the package in question contained illegal drugs and that even if Inspector Morse had sufficient evidence to temporarily detain the package, he lacked sufficient evidence to transport the package to the DEA office for further investigation. The State maintains that Inspector Morse had reasonable cause to detain the package when it exhibited characteristics consistent with the Postal Inspection Services’ drug package profile. In addition, the State argues that Inspector Morse’s action of briefly detaining the package and taking it to the DEA office for a canine sniff did not constitute a seizure because it did not deprive Ochadleus of his possessory interest in the package since the package was promptly delivered to him.
¶21 The Van Leeuwen case is analogous to the case sub judice. The defendant in Van Leeuwen mailed a 12-pound package to California and one to Tennessee. He insured both packages for $10,000. Although the defendant had British Columbia license plates, he mailed the packages from a small border town in the United States. The return addresses on both packages were fictitious. A postal clerk detained the packages to allow further investigation into their suspicious nature. Subsequent research revealed that the addressees for both packages were being investigated for trafficking in illegal coins and a search warrant ultimately revealed that both packages contained illegal gold coins. Van Leeuwen, 397 U.S. at 249-50, 90 S.Ct. at 1031.
¶22 The Supreme Court concluded in Van Leeuwen that the postal clerk had sufficient justification to detain the packages without a warrant and that detention of the packages for 29 hours was not unreasonable under the circumstances. Van Leeuwen, 397 U.S. at 252-53, 90 S.Ct. at 1032-33. The Supreme Court stated:
No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained.
Van Leeuwen, 397 U.S. at 253, 90 S.Ct. at 1032. See also Gill, 280 F.3d at 929 (“[T]he main Fourth Amendment interest in a mailed package attaches to the privacy of its contents, not the speed with which it is delivered.”).
¶23 Various circuit courts have extended the rationale of Vare Leeuwen to packages suspected of containing drugs sent by United States Mail or private courier services to justify detaining suspicious packages until probable cause for a search warrant could be established by conducting canine sniffs of the packages. See, e.g., United States v. LaFrance (1st Cir. 1989), 879 F.2d 1, 4 (holding that the seizure of a Federal Express package on reasonable suspicion that it contained contraband was lawful); United States v. Mayomi (7th Cir. 1989), 873 F.2d 1049, 1053-54 (holding that when the facts create a reasonable suspicion and the investigation period is reasonable, the warrantless detention of mail sent to a private mailbox service until a canine sniff could establish probable cause for a search warrant did not violate the Fourth Amendment); Aldaz, 921 F.2d at 229 (“Postal authorities may seize and detain packages if they have a reasonable and articulable suspicion of criminal activity.”); United States v. Lux (10th Cir. 1990), 905 F.2d 1379, 1382 (“A temporary detention of mail for investigative purposes is not an unreasonable seizure when authorities have a reasonable suspicion of criminal activity.”); United States v. Banks (11th Cir. 1993), 3 F.3d 399, 403, cert, denied, 510 U.S. 1129, 114 S.Ct. 1097, 127 L.Ed.2d 410 (1994) (“reasonable, temporary detention of a reasonably suspicious postal package prior to establishing probable cause for issuance of a search warrant for the time necessary to obtain a drag detection canine or otherwise conduct an investigation does not violate the Fourth Amendment.”).
¶24 In Banks, a narcotics investigator obtained the delivery notice for an Express Mail package from a reliable confidential informant. The informant told the investigator that he knew the individuals who sent the package and that he believed the package contained cocaine. The informant also stated that the Postal Service had attempted delivery of the package that day. Based on this information, the investigator met with a postal inspector who verified that a package meeting the informant’s description was in the Express Mail and that delivery had been attempted. After a narcotics canine gave a positive alert to the package, the investigator obtained a warrant to search the package. It contained 106.4 grams of powder cocaine and 45.6 grams of cocaine base. Banks, 3 F.3d at 400-01.
¶25 The package was resealed and a second delivery notice advising that the package could be picked up at the Post Office was left at the address on the package. A team of federal and local officers maintained surveillance at the Post Office. The defendant was arrested when he presented and signed the delivery slip to obtain the package. He was indicted for conspiracy to distribute cocaine and cocaine base as well as possession with intent to distribute cocaine. The defendant moved to suppress evidence obtained by the search warrant arguing that the initial detention of the package was not based upon a reasonable suspicion that the package contained contraband. Banks, 3 F.3d at 401. However, the Eleventh Circuit Court of Appeals held that the information obtained from the informant provided reasonable suspicion for the postal inspector to detain the package and subject it to a canine sniff. Banks, 3 F.3d at 403.
¶26 Along those same lines, the Tenth Circuit Court of Appeals determined in Lux that law enforcement officers had reasonable suspicion to detain an Express Mail package addressed to the defendant and subject it to a canine sniff because the package met three of the characteristics of the drug package profile developed by the Postal Inspection Service. Lux, 905 F.2d at 1382. Some of these characteristics are: (1) size and shape of the package; (2) package taped to close or seal all openings; (3) handwritten or printed labels; (4) unusual return name and address; (5) unusual odors coming from the package; (6) fictitious return address; and (7) destination of the package. Lux, 905 F.2d at 1380.
¶27 The Ninth Circuit Court of Appeals used these same characteristics in United States v. Hernandez (9th Cir. 2002), 313 F.3d
1206, 1211, cert, denied, 538 U.S. 1023, 123 S.Ct. 1953, 155 L.Ed.2d 867 (2003), to conclude that there was reasonable cause to detain the package in question in that case. The Ninth Circuit noted that this profile “does not contain completely arbitrary criteria,” as it was developed at a national level and was based upon information gathered from national investigations of narcotics mailings. Hernandez, 313 F.3d at 1211 (citation omitted).
¶28 The Ninth Circuit also acknowledged in Hernandez that a person who voluntarily places items in the United States Mail for delivery retains a limited possessory interest in the mailed item.
“[T]he mere detention ofmailnotin [the addressor’s] custody or control amounts to at most a minimal or technical interference with [the addressor’s] person or effects, resulting in no personal deprivation at all.”
Hernandez, 313 F.3d at 1209 (quoting United States v. Place (1983),
462 U.S. 696, 718 n.5, 103 S.Ct. 2637, 2650 n.5, 77 L.Ed.2d 110 (Brennan, J., concurring)). The recipient, on the other hand, has a reasonable expectation that postal employees will not detain mail beyond the normal delivery date and time.
In other words, an addressee’s possessory interest is in the timely delivery of a package, not in “having his package routed on a particular conveyor belt, sorted in a particular area, or stored in any particular storing bin for a particular amount of time.”
Hernandez, 313 F.3d at 1210 (quoting United States v. Demoss (8th Cir. 2002), 279 F.3d 632, 639 (Hansen, J., concurring)) (emphasis added).
¶29 In addition, the Ninth Circuit Court of Appeals stated in United States v. England (9th Cir. 1992), 971 F.2d 419, 420, that it is “the extent of the interference with the defendant’s possessory interest in his property, not the physical movement of the property, that determines whether a seizure has occurred.” The defendant in England deposited two packages in the United States Mail for Express Mail delivery. The packages were deposited in the mail on different dates from different postal stations. Postal inspectors at each station suspected that the packages contained narcotics. One of the postal inspectors took the package in his possession from the postal station to a nearby police station to subject the package to a canine sniff. A canine sniff on the other package was conducted at that postal station.
The canines alerted to both packages. England, 971 F.2d at 420. The Ninth Circuit explained that a “seizure” of property occurs “when there is some meaningful interference with an individuals possessory interests in that property” and that absent such interference, there can be no seizure under the Fourth Amendment. England, 971 F.2d at 420 (citing United States v. Jacobsen (1984), 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85; United States v. Beale (9th Cir. 1984), 736 F.2d 1289, 1292, cert, denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984).
¶30 Using the drug package profile developed by the Postal Inspection Service, Inspector Morse detained the package in question in this case because (1) it was an Express Mail package and drug dealers often use the Express Mail service; (2) the label was handwritten rather than a typed business label; (3) all of the seams of the package were taped; (4) the zip code on the label did not match the zip code of where the package originated; (5) the package originated in Tucson, Arizona, a known drug distribution area; and (6) three other Express Mail packages had been delivered to the same address within the past six weeks. Consequently, we agree with the State that Inspector Morse did have a reasonable suspicion to detain the package.
¶31 Furthermore, because Inspector Morse’s brief detainment of the package and his subjection of the package to a canine sniff at the nearby DEA office did not interfere with Ochadleus’s possessory interest in the package, that brief detainment did not constitute a seizure under the Fourth Amendment. As the Ninth Circuit stated in Hernandez, “an addressee’s possessory interest is in the timely delivery of the package,... .’’Hernandez, 313 F.3d at 1210. Here, the canine sniff on Ochadleus’s package and the subsequent delivery of that package were all done on the same day that Inspector Morse discovered the package at the Post Office. Hence, Inspector Morse’s brief detainment of the package to subject it to a canine sniff did not delay delivery.
¶32 Ochadleus also contends that even if his privacy interests under the Fourth Amendment were not invaded by the detention of his package, it does not necessarily follow that no privacy interests were invaded under Montana constitutional law. However, Ochadleus offers no real analysis or support for his state constitutional law claim. This Court has repeatedly held that it will not consider unsupported issues or arguments and is under no obligation to locate authorities or formulate arguments for a party in support of positions taken on appeal. State v. Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15 (citing In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6).
¶33 Accordingly, we hold that Inspector Morse did have a reasonable suspicion to detain the package. We also hold that his brief detainment of the package to subject it to a canine sniff at the nearby DEA office was not a seizure under the Fourth Amendment because it did not interfere with Ochadleus’s possessory interest in the package.
Issue 2.
¶34 Whether the District Court properly denied Ochadleus’s motion to suppress based on his claim that law enforcement officers failed to follow the “knock and announce” rule prior to executing a warrant to search his residence.
¶35 Ochadleus argues in his brief on appeal that the law enforcement officers executing the warrant to search his residence should have knocked and announced their presence prior to entering the privacy of his home based on the Fourth Amendment to the United States Constitution and the federal knock and announce statute. He also argues that because the officers failed to knock and announce, all evidence seized in the search of his home should be suppressed. The State argues, and we agree, that Ochadleus’s rights under the Fourth Amendment and the federal knock and announce statute were not violated in this case because of the existence of exigent circumstances.
¶36 In our recent decision in State v. Anyan, 2004 MT 395, 325 Mont. 245, 104 P.3d 511, we addressed the knock and announce rule for the first time in Montana. In doing so, we noted in Anyan that the knock and announce rule recognizes the powerful protections afforded by the Fourth Amendment to the sanctity of the home and that the rule is intended to strike the proper balance between individual rights and the police power of the state. Anyan, ¶ 21 (citing United States v. Becker (9th Cir. 1994), 23 F.3d 1537; People v. Condon (Ill. 1992) 592 N.E.2d 951, cert, denied, 507 U.S. 948, 113 S.Ct. 1359, 122 L.Ed.2d 738 (1993)). We also noted that “[ujnderlying the knock and announce rule are concerns for the protection of privacy, reduction in the potential for violence, and the prevention of the destruction of property of private citizens.” Anyan, ¶ 22 (citing State v. Bamber (Fla. 1994), 630 So. 2d 1048, 1052).
¶37 In evaluating the scope of the Fourth Amendment right to be free from unreasonable searches and seizures, the United States Supreme Court in Wilson v. Arkansas (1995), 514 U.S. 927, 931, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976, looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing of the Fourth Amendment. In doing so, the Supreme Court noted that
[although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.
Wilson, 514 U.S. at 931, 115 S.Ct. at 1916 (internal citations omitted). ¶38 The facts leading to the Supreme Court’s holding in Wilson are these. After Sharlene Wilson made several narcotics sales to an informant, law enforcement officers with the Arkansas State Police obtained warrants to arrest her and search her home. The affidavit in support of the warrants stated that Wilson’s housemate, Bryson Jacobs, had previously been convicted of arson and firebombing. On the afternoon of the search, the officers found the main door to Wilson’s home open. As the officers opened an unlocked screen door and entered the residence, they identified themselves as police officers and stated that they had a warrant. They found Wilson in the bathroom flushing marijuana down the toilet. Wilson and Jacobs were arrested and charged with possession and distribution of marijuana and methamphetamine. Wilson, 514 U.S. at 929-30, 115 S.Ct. at 1915-16.
¶39 Prior to trial, Wilson filed a motion to suppress the evidence seized during the search on various grounds including that the search was invalid because the officers failed to knock and announce their presence prior to entering the home. The trial court summarily denied the suppression motion. Wilson was convicted on all charges and he appealed to the Arkansas Supreme Court arguing that the Fourth Amendment requires officers to knock and announce prior to entering a residence. That court rejected Wilson’s argument and affirmed her conviction on appeal. The United States Supreme Court granted certiorari to resolve the conflict among the lower courts as to whether the common law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. The Supreme Court held that it did. Wilson, 514 U.S. at 930, 115 S.Ct. at 1916.
¶40 The Supreme Court further held in Wilson that not every entry must be preceded by an announcement. Rather,
[t]he Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.... [T]he common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances.
Wilson, 514 U.S. at 934, 115 S.Ct. at 1918 (citing Ker v. California (1963), 374 U.S. 23, 38, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726).
¶41 Consequently, as we pointed out in Any an, an officer serving a search warrant must comply with the knock and announce requirement unless there are exigent circumstances present which would present a threat of physical violence or the likelihood that evidence would be destroyed if the rule were not followed. Anyan, ¶ 33 (citing United States v. Dupras (D. Mont. 1997), 980 F.Supp. 344, 347; Richards v. Wisconsin (1997), 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615). There are two types of exigencies, those that are foreknown and those unexpected that arise on the scene. Dupras, 980 F.Supp. at 347. The determination of whether an unannounced entry is reasonable must be made under the particular circumstances of each case. Dupras, 980 F.Supp. at 347.
¶42 Exigent circumstances have been defined as
“those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”
United States v. Zermeno (9th Cir. 1995), 66 F.3d 1058, 1063 (quoting United States v. McConney (9th Cir. 1984), 728 F.2d 1195, 1199, cert, denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)).
¶43 In Richards v. Wisconsin (1997), 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615, the United States Supreme Court held that to justify a no-knock entry, law enforcement officers must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. Law enforcement officers obtained a warrant to search Richards’ motel room for drugs and related paraphernalia. One officer, dressed as a maintenance man, knocked on the door and stated that he was with maintenance. With the chain still on the door, Richards cracked it open, but slammed it closed again when he saw a uniformed officer standing behind the “maintenance man.” After waiting two or three seconds, the officers kicked in the door. They claimed at trial that they identified themselves as police as they were kicking in the door. The officers caught Richards trying to escape through a window. They found cash and cocaine hidden in plastic bags in the bathroom ceiling. Rickards, 520 U.S. at 388-89, 117 S.Ct. at 1418-19.
¶44 Richards sought to have the evidence from his motel room suppressed on the ground that the officers failed to knock and announce their presence prior to forcing entry into the room. The Supreme Court held that it was reasonable for the officers to believe that Richards knew, after he opened the door, that the men seeking entry into his room were the police and that once the officers reasonably believed that Richards knew who they were, it was reasonable for them to force entry immediately given the disposable nature of the drugs. Richards, 520 U.S. at 395, 117 S.Ct. at 1422.
¶45 As shown in Richards, the futility exception to the knock and announce rule excuses the knock and announce requirement where police officers have a reasonable suspicion that the occupants know of the presence and purpose of the police prior to their entry into the residence. Anyan, ¶ 51 (citations omitted). The Ninth Circuit Court of Appeals further addressed this exception to the knock and announce rule in United States v. Peterson (9th Cir. 2003), 353 F.3d 1045. Just before SWAT team members were ready to knock on Peterson’s door to serve a search warrant, one of the occupants of the residence opened the door. Recognizing the group of people he saw on the porch to be police officers, he attempted to close the door as one of the officers shouted “Police, with a search warrant.” The officers then forced the door open. On appeal, Peterson argued that the officers’ entry into his residence was unreasonable under the Fourth Amendment. Peterson, 353 F.3d at 1047-48.
¶46 The Ninth Circuit concluded that the officers’ no-knock entry was justified on the grounds of futility, destruction of evidence and danger. In addressing the issue of futility, the Ninth Circuit stated that
the SWAT team originally intended to announce its presence. However, just as this announcement was about to be made, [one of the occupants] unexpectedly opened the door, saw that police were outside, and attempted to deny them entry. Were we to hold that the police were required to announce their presence in this case and wait some further period of time while the occupants reconsidered whether to admit or resist them, it would amount to mandating a meaningless act. Announcement would have been futile....
Peterson, 353 F.3d at 1049.
¶47 Like Richards and Peterson, the officers executing the search warrant in the case sub judice were seen by one of the occupants of the house before the officers had a chance to knock and announce, thus the futility exception to the knock and announce rule applies in this case. While Ochadleus, Wright and another male were sitting in the living room, Wright noticed someone pass by the window. When he went to the door to see who was there, he saw the officers through the window in the door. Even though Wright had already made eye contact with the officers, the officers still announced their presence. It was not until the officers saw Wright back away from the door instead of opening it, that the officers forced the door open. As the Ninth Circuit stated in Peterson, “[j]ust as one cannot close a door that is already closed, one cannot ‘announce’ a presence that is already known.” Peterson, 353 F.3d at 1049.
¶48 Accordingly, we hold that the officers’ forced entry into Ochadleus’s home to execute the search warrant did not violate his Fourth Amendment right to be free from unreasonable searches and seizures.
¶49 By the same token, Ochadleus cannot successfully argue that the officers violated the federal knock and announce statute, 18 U.S.C. § 3109, which provides as follows:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
Because this rule “is more restrictive than the Fourth Amendment,” United States v. Tavares (8th Cir. 2000) 223 F.3d 911, 916 n.5 (quoting United States v. Moore (8th Cir. 1992), 956 F.2d 843, 847), we analyze this argument separately.
¶50 While the Fourth Amendment’s knock and announce reasonableness inquiry applies with equal force to both state and federal law enforcement officers, § 3109 does not directly apply to state law enforcement officers. Rather, § 3109 applies “[w]hen federal officers are a significant part of a search conducted pursuant to a state warrant ....” Tavares, 223 F.3d at 914 (citations omitted). In the present case, there was significant federal involvement to implicate the statute since Inspector Morse, who initiated the search, is a federal agent; the search warrants for both the package and the residence were issued by a federal magistrate; and the DEA was involved throughout the investigation including the search of the residence.
¶51 Ochadleus argues that the officers violated the knock and announce rule because they failed to knock. However, as the District Court noted in its order denying Ochadleus’s motion to suppress, although § 3109 is generally referred to as the “knock and announce” statute, it does not contain an express requirement that the officers actually knock on the door. Rather, the statute requires that law enforcement officers give “notice of their authority and purpose.” Not only did the officers give notice of their authority and purpose in this case by announcing that they were the police and that they had a search warrant, but Wright saw for himself through the window that they were police officers. It would have been futile for the officers to do more. “[E]xigent circumstánces ... apply with equal force in the § 3109 context.” Peterson, 353 F.3d at 1051 (citing United States v. Ramirez (1998), 523 U.S. 65, 73, 118 S.Ct. 992, 998, 140 L.Ed.2d 191).
¶52 Section 3109 also requires that after giving notice of their authority and purpose and prior to forcing open the door, the officers must be refused admittance. Ochadleus argues that the District Court erred in interpreting Wright’s step back as a refusal to admit the officers. However, we agree with the District Court’s conclusion that it was reasonable for the officers to assume in this case that Wright’s action of backing away from the door was a refusal to admit them.
¶53 Accordingly, we hold that the law enforcement officers’ forced entry into Ochadleus’s home to execute the search warrant did not violate § 3109.
Conclusion
¶54 Because we hold that Inspector Morse’s action of briefly detaining the package and taking it to the DEA office for a canine sniff did not constitute a seizure under the Fourth Amendment since it did not deprive Ochadleus of his possessory interest in the package, and because we hold that the officers’ forced entry into Ochadleus’s home to execute the search warrant did not violate his rights under the Fourth Amendment or the federal knock and announce statute, we affirm the District Court’s denial of Ochadleus’s motion to suppress.
¶55 Since this is only the second Opinion issued by this Court addressing the knock and announce rule in Montana, we believe that it is important to point out that this Opinion deals with an exception to the knock and announce rule. To the end that law enforcement officers and prosecutors will not attach more significance to this Opinion than is justified, we re-emphasize the following well-established rules. The warrantless entry into a residence is per se unreasonable subject only to certain well delineated exceptions. State v. Loh (1996), 275 Mont. 460, 468, 914 P.2d 592, 597 (citing Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576). Officers serving a warrant to search a residence must knock and announce their presence before using force to enter the residence. Anyan, ¶ 33. The time the officers must wait before using force to enter the residence depends upon the circumstances of each case. Anyan, ¶ 64. The decision to make a no-knock entry into a residence should ordinarily be made by a neutral and detached magistrate as part of the application for a search warrant. This means that if the search warrant applicant knows of exigent circumstances which may justify a no-knock entry, those circumstances must be included in the application for the search warrant and the issuing magistrate will determine whether to allow the no-knock entry. Anyan, ¶ 63.
¶56 Finally, as in this case, an investigating officer may make a no-knock entry after a reasonable suspicion of exigency has ripened. United States v. Banks (2003), 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343. Exigent circumstances-i.e., those that typically are unexpected and that arise on the scene-include officer safety concerns, Anyan, ¶¶ 43-50; futility, Anyan ¶¶ 51-57; and the destruction of evidence, Anyan ¶¶ 58-60. We again stress, however, that a no-knock entry into a residence is the exception and not the rule.
¶57 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES WARNER, LEAPHART, COTTER, RICE and MORRIS concur.
|
[
-5,
-29,
42,
11,
-29,
1,
-37,
10,
13,
61,
-1,
21,
-21,
54,
3,
-5,
-32,
36,
61,
-28,
-5,
-8,
-13,
16,
-16,
-102,
-30,
41,
-35,
41,
27,
21,
81,
-81,
43,
27,
48,
-3,
24,
-83,
26,
0,
-14,
-1,
-32,
3,
18,
37,
0,
-7,
81,
13,
-9,
7,
37,
20,
41,
-22,
26,
1,
-36,
-12,
18,
45,
-3,
-13,
-37,
15,
-13,
8,
11,
-5,
-39,
-6,
-6,
8,
2,
21,
-85,
53,
-33,
25,
8,
-9,
49,
-10,
-27,
-48,
49,
24,
-1,
-65,
-15,
-12,
-31,
-16,
37,
-40,
5,
1,
-23,
-8,
-42,
28,
3,
-3,
-20,
-4,
6,
23,
-14,
20,
-30,
-18,
-23,
24,
18,
48,
6,
-3,
-29,
-2,
-2,
52,
-17,
-20,
34,
-10,
-17,
28,
-13,
40,
37,
-17,
9,
10,
-9,
-52,
21,
6,
0,
53,
32,
-12,
-48,
-8,
35,
43,
-5,
17,
27,
-6,
-51,
40,
-43,
17,
44,
-82,
-12,
0,
-19,
13,
8,
15,
-21,
24,
-20,
-14,
-19,
17,
-20,
19,
-44,
42,
33,
-6,
-52,
31,
33,
-3,
17,
-15,
-10,
-16,
7,
38,
50,
11,
-3,
-56,
16,
-9,
23,
-21,
-35,
-30,
17,
39,
-2,
-9,
-8,
38,
-3,
37,
-48,
10,
4,
-1,
30,
29,
-12,
-30,
4,
-2,
17,
-31,
-70,
6,
-8,
18,
-32,
-4,
-27,
10,
15,
-3,
-7,
79,
10,
5,
-45,
27,
44,
-59,
47,
22,
9,
-38,
-27,
7,
6,
-18,
-19,
-29,
34,
-3,
-48,
-28,
-19,
6,
-36,
14,
41,
22,
21,
-35,
72,
-6,
-17,
-12,
52,
-16,
23,
17,
18,
2,
33,
7,
-47,
72,
-60,
23,
-7,
-11,
-35,
-21,
5,
8,
44,
9,
23,
0,
-32,
0,
-49,
17,
57,
12,
-31,
-17,
-27,
-23,
-51,
48,
22,
19,
38,
14,
0,
2,
-4,
-2,
-37,
-1,
17,
-19,
8,
9,
-44,
-17,
74,
-10,
-21,
21,
-52,
-4,
-44,
-16,
18,
-19,
-81,
41,
-2,
-62,
16,
4,
-20,
6,
72,
-15,
14,
44,
-19,
1,
0,
38,
16,
-34,
-6,
5,
-75,
-5,
0,
-7,
-56,
32,
-2,
42,
0,
-23,
41,
49,
58,
-15,
-16,
16,
5,
0,
32,
26,
16,
6,
17,
3,
-25,
-30,
23,
-24,
-60,
-74,
-56,
-78,
50,
-22,
6,
-27,
1,
-29,
27,
-19,
13,
-27,
7,
-30,
13,
5,
29,
21,
46,
-50,
3,
-2,
39,
40,
-61,
3,
44,
-15,
33,
-16,
-55,
37,
50,
1,
-8,
25,
3,
-15,
-30,
-6,
0,
8,
-32,
0,
46,
-11,
-11,
30,
1,
-18,
4,
-31,
-33,
-31,
45,
0,
-18,
64,
-12,
-6,
-7,
1,
-2,
1,
-62,
-13,
-13,
-10,
9,
48,
-32,
-47,
-63,
4,
-5,
-21,
-14,
9,
15,
3,
7,
14,
-7,
-18,
-17,
51,
32,
-8,
20,
30,
3,
-22,
-8,
-15,
0,
9,
31,
-60,
25,
-43,
-10,
-11,
-57,
5,
-26,
37,
-64,
62,
-55,
-6,
-20,
-29,
12,
20,
14,
47,
-12,
-21,
-34,
36,
9,
37,
-30,
-33,
-52,
36,
6,
-28,
69,
-3,
31,
-32,
-11,
17,
33,
8,
0,
55,
14,
8,
41,
41,
-14,
-10,
-40,
38,
-10,
11,
-17,
26,
51,
-18,
17,
-19,
-8,
57,
13,
-57,
-11,
-32,
-62,
3,
-5,
-33,
53,
18,
76,
-3,
4,
3,
47,
-50,
-12,
21,
-9,
-24,
0,
15,
37,
-37,
7,
76,
2,
-49,
-8,
-26,
35,
45,
-45,
-2,
-16,
-31,
21,
3,
-8,
19,
-25,
38,
23,
-10,
-35,
-16,
-10,
18,
37,
3,
-3,
-1,
-15,
2,
11,
7,
-18,
-14,
-11,
-41,
11,
-44,
-4,
-40,
26,
22,
-18,
9,
-74,
-3,
-67,
-27,
-28,
-25,
15,
-2,
58,
10,
47,
-12,
52,
21,
-43,
18,
6,
43,
33,
-3,
-46,
27,
-42,
-8,
18,
-37,
-50,
-29,
-40,
91,
-21,
-26,
-35,
11,
75,
6,
24,
-11,
6,
15,
12,
-14,
-27,
65,
-22,
-48,
70,
37,
5,
5,
-36,
10,
23,
-11,
30,
11,
50,
38,
21,
-64,
26,
50,
-5,
13,
4,
-23,
-22,
8,
-14,
-5,
-4,
2,
-24,
-20,
-5,
29,
-1,
-20,
-50,
14,
45,
-62,
48,
-73,
13,
-5,
35,
20,
35,
23,
-7,
6,
11,
4,
-7,
-5,
21,
5,
11,
34,
7,
-9,
-22,
-50,
-6,
-9,
55,
23,
-60,
0,
14,
5,
49,
-10,
2,
61,
-12,
0,
22,
3,
-54,
-88,
26,
14,
-31,
-48,
14,
-46,
-13,
6,
0,
-16,
9,
28,
4,
2,
4,
-2,
7,
15,
-35,
-9,
-20,
3,
0,
17,
-57,
2,
35,
-39,
13,
46,
61,
-4,
-4,
-6,
67,
-2,
32,
-34,
-65,
-2,
22,
23,
2,
5,
69,
-41,
-2,
0,
-20,
3,
3,
8,
33,
7,
24,
-25,
18,
26,
-9,
3,
-5,
-2,
44,
-67,
-27,
14,
-54,
-15,
54,
18,
-37,
24,
-31,
35,
0,
-26,
18,
-28,
23,
-8,
0,
21,
-47,
13,
26,
-115,
16,
12,
-3,
76,
-28,
12,
22,
13,
-35,
9,
13,
-60,
56,
-39,
-39,
-29,
-14,
-30,
-14,
15,
26,
21,
-13,
12,
4,
-36,
4,
16,
-14,
35,
-4,
-32,
-91,
44,
-10,
-57,
53,
43,
-1,
43,
27,
-8,
58,
26,
16,
34,
13,
-25,
-28,
-30,
-29,
16,
34,
43,
0,
3,
26,
26,
8,
46,
-34,
5,
-48,
-31,
4,
-37,
35,
-3,
20,
-14,
71,
9,
-22,
-10,
-27,
-3,
-10,
-9,
-17,
-41,
-4,
-33,
-22,
-66,
-57,
-15,
64,
-19,
-64,
-38,
-25,
0,
4,
26,
38,
-20,
44,
34,
6,
-45,
27,
6,
39,
-2,
20,
-3,
-6,
-40,
-3,
-23,
68,
-57,
-40,
-22,
-15,
7,
-7,
-12,
4,
34,
9,
69,
32,
-5,
-18,
-30,
-33,
43,
-1,
41,
5,
5,
5,
-4,
-28,
11,
42,
1,
-31,
5,
-45,
4,
28,
29,
-32,
-45,
59,
-19,
5,
17,
-39,
32,
-6,
9,
14,
17,
-31,
-39,
-27,
56,
-6,
47,
-80,
-19,
-7,
-16,
-49,
11,
28,
-12,
-49,
-17,
-8,
-19,
12,
6,
70,
29,
-37,
-7,
0,
44,
11,
48,
40,
55,
-37,
0,
-15,
-5,
-23,
-23,
-26,
-5,
-29,
-12,
-32,
-32,
-26,
-18,
-36,
-32,
8,
21,
4,
0,
-32,
11,
6,
-65,
13,
-17,
12,
9,
5,
-6,
-34,
39,
-59,
-9,
-11,
30
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Nina Schmidt (“Schmidt”) appeals the District Court’s Corrected Order Affirming the Human Rights Commission (“HRC”), whose Order Reversing and Dismissing Final Agency Decision (“Order”) resulted in the dismissal of her charge of illegal discrimination against Elvin Lou Cook (“Elvin”) and Robert Cook (“Robert”), d/b/a Triple Crown Motor Inn (“the Motel”). The HRC concluded that there was not substantial credible evidence to support a finding of discrimination on the basis of sex, and that because any alleged illegal discrimination did not occur in the employment context, the HRC did not have jurisdiction. The District Court affirmed. We reverse and remand.
ISSUE
¶2 We restate the issue as follows: Did the District Court err when it upheld the HRC’s reversal of the Final Agency Decision?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Robert purchased the Motel in August 2000. In September 2000, Robert’s brother Elvin became the Motel manager. Elvin had previously worked for Robert in a similar capacity in at least two other motels that Robert had owned. Elvin was authorized to operate the Motel and to hire new staff.
¶4 Elvin advertised for a “Live In Maid.” Schmidt’s friend Amber Symington (“Symington”) worked and lived at the Motel. On September 28,2000, Schmidt visited Symington and stayed overnight in Symington’s room. Schmidt inquired about working at the Motel and Symington introduced her to Elvin.
¶5 On September 29,2000, Elvin interviewed Schmidt for the Motel maid position. He conducted the interview in his Motel room. When Schmidt first arrived, Elvin stripped his bed and asked Schmidt to remake it to demonstrate that she could make a bed. After she did so, Schmidt testified, Elvin informed her that she was hired for the maid position. Elvin then informed Schmidt that as part of her job, she would be required to have sex with him and with Motel customers. He described in detail a variety of sexual acts that Schmidt would be required to perform. He told her that she might eventually make $20,000 to $40,000 per month.
¶6 At the time of the interview, Schmidt was an emancipated sixteen-year-old who was married and separated, and living with her mother, Phyllis Slade (“Slade”). The family lived on Slade’s public assistance and Social Security disability payments of $491 per month. Schmidt had an eighth-grade education and had been unable to find work because of her age and lack of work experience. Schmidt considered accepting the Motel job.
¶7 After the interview, Schmidt gave Elvin Slade’s phone number. Elvin called Slade, and Schmidt got on the phone and told Slade that she had been hired to be a maid at the Motel. Slade then spoke with Elvin, who informed her that Robert owned the Motel and that he, Elvin, was the manager. Elvin knew that Schmidt was sixteen; he assured Slade that he would make sure she was okay in her new job. The telephone call was interrupted by call-waiting, and Elvin agreed to call Slade back in a few minutes.
¶8 Elvin gave Schmidt and Symington $50 to buy whatever supplies they might need to stay at the Motel. After they left his motel room, Elvin called Slade again and discussed Schmidt’s job in more detail. Elvin explained that Schmidt would have to live at the Motel, and that he would personally train Schmidt. Elvin informed Slade that Schmidt’s starting salary at the Motel would be $1500 per week. He also stated that he planned to take Schmidt and a few other females who worked at the Motel to work at a motel in Las Vegas, where Schmidt would be able to earn a great deal more money.
¶9 The next day, September 30, Elvin fired Symington and evicted her from the Motel for having a party in her room the night before. Schmidt also left the Motel, but returned later with a friend she had recruited at Elvin’s request, to interview as a replacement for Symington. Elvin rejected Schmidt’s friend for the job.
¶10 On October 1,2000, Schmidt informed her mother that the job at the Motel included prostitution. Slade called the police. The Great Falls Police Department was already investigating Elvin and the Motel, because another woman had reported that she interviewed with Elvin and received the same job offer as Schmidt. On October 2, Detective Richard Hollis met with Schmidt and verified that Elvin had offered her a maid position, contingent upon her willingness to engage in sexual acts with Elvin and Motel customers. Schmidt agreed, with her mother’s permission, to carry a concealed recording device (a “wire”) in her purse and return to the Motel for another meeting with Elvin.
¶ 11 Schmidt returned to the Motel on October 2, with the wired purse. She engaged Elvin in conversation and he repeated that she would he required to engage in sexual acts with him and with Motel customers as part of her job. He then pulled down her pants and underpants and hit her on her bottom with a ping pong paddle. Schmidt fled Elvin’s motel room.
¶12 The Great Falls Police Department obtained a warrant and arrested Elvin for felony aggravated promotion of prostitution and misdemeanor sexual assault. He ultimately pled guilty to misdemeanor promotion of prostitution and misdemeanor sexual assault on Schmidt. At his sentencing, he admitted that he hired women at the Motel to give massages, spank customers, and offer specialized sexual services. He apologized to Schmidt and the other women.
¶ 13 Robert, who resided in Boise, Idaho, found out about Elvin’s arrest when a friend sent him a newspaper article about it. Robert had never developed any written policy concerning sexual harassment or quid pro quo supervisory practices at the Motel.
¶14 On February 1, 2001, Slade filed complaints on Schmidt’s behalf with the Department of Labor and Industry (“Department”). One complaint alleged that Elvin discriminated against Schmidt on the basis of sex by subjecting her to sexual harassment. In the other complaint, she alleged the Motel discriminated against Schmidt on the basis of sex in employment by reason of Elvin’s harassment. Amended complaints were filed on March 19,2001. Upon Schmidt reaching age eighteen, the caption of the case was amended accordingly.
¶15 The Department consolidated the cases and appointed a Hearing Examiner on July 16, 2001. On July 18, 2001, Elvin was personally served with process at the Motel, where he was still working as the manager. Robert Cook was added as an individual respondent on October 10, 2001. Elvin failed to appear and defend. The Hearing Examiner entered a default against him on October 15, 2001. Robert appeared personally on November 5, 2001.
¶16 On January 29, 2002, although Elvin had not appeared in the case, he suborned false statements from Slade and from Schmidt’s brother, promising them $150,000 and college tuition for Schmidt’s brother if they would give written statements and testify that Schmidt was a drug user and that she had propositioned Elvin, offering him sex in exchange for a motel room. The Hearing Examiner held a contested case hearing on January 30 and 31,2002. On the morning of January 31, 2002, Slade and Schmidt’s brother provided Robert with written statements. Robert refused to pay for the statements, but told Slade and Schmidt’s brother that he would encourage his liability insurer to pay them for the statements and supporting testimony. Slade testified, but Schmidt’s brother did not.
¶17 Following further briefing by the parties, the Hearing Examiner filed the Final Agency Decision on May 24, 2002. The Hearing Examiner concluded that the Department had jurisdiction over this case, pursuant to § 49-2-509(7), MCA, and that Elvin illegally discriminated against Schmidt because of her sex when he subjected her to quid pro quo sexual harassment as a condition of hiring her as a Motel maid. The Hearing Examiner further concluded that Robert, the owner of the Motel who placed Elvin in the manager position without providing a sexual harassment policy to protect employees and applicants, was jointly and severally liable with Elvin to Schmidt for her resulting emotional distress in the sum of $35,000. The Hearing Examiner further concluded that other affirmative relief against Elvin and Robert was warranted.
¶18 Robert appealed the Final Agency Decision to the HRC. The HRC reversed the Final Agency Decision and dismissed Schmidt’s complaints. The HRC concluded that the alleged sexual harassment of Schmidt did not occur in an employment context, and thus the Hearing Examiner erred in concluding that the Department had jurisdiction over the case. The HRC further concluded that the Hearing Examiner’s finding of discrimination on the basis of sex was not supported by substantial credible evidence. The HRC determined that the parties operated in pari delicto, and that Schmidt was aware of the nature of the employment prior to her interview with Elvin. The HRC further found that the quid pro quo exchange did not occur during a genuine employment interview, but rather occurred while Schmidt was wearing a wire as part of a police investigation.
¶19 Schmidt appealed to the District Court. On October 7, 2003, the District Court issued its Order affirming the HRC, from which Schmidt now appeals.
STANDARD OF REVIEW
¶20 Actions brought before the HRC are subject to the requirements of the Montana Administrative Procedure Act (“MAPA”). Moran v. Shotgun Willies, Inc. (1995), 270 Mont. 47, 50, 889 P.2d 1185, 1186. The standard of review of an agency decision under MAPA, set forth at § 2-4-704(2), MCA, provides in pertinent part:
The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are ... (v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; [or] (vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion....
¶21 A three-part test is used to determine whether agency findings are clearly erroneous: (1) the record is reviewed to determine if the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, it will be determined whether the agency misapprehended the effect of the evidence; and (3) if substantial evidence exists and the effect of the evidence has not been misapprehended, the reviewing court may still decide that a finding is clearly erroneous if a review of the record leaves the court with a definite and firm conviction that a mistake has been made. Total Mechanical Heating v. UEF, 2002 MT 55, ¶ 22, 309 Mont. 84, ¶ 22, 50 P.3d 108, ¶ 22.
¶22 We review conclusions of law to determine if they are correct. Moran, 270 Mont. at 51, 889 P.2d at 1187.
DISCUSSION
¶23 Did the District Court err when it upheld the HRC’s reversal of the Final Agency Decision?
¶24 Shortly after Schmidt filed her appeal, Robert’s counsel withdrew his representation. Robert has not filed a response brief, so this matter comes before us on appellant’s brief only.
¶25 Schmidt argues that the District Court erred when it upheld the HRC’s reversal of the Final Agency Decision because the HRC’s conclusion that the Department did not have jurisdiction over the case was incorrect. Schmidt further argues that it was an abuse of discretion for the HRC to substitute its own findings of fact in place of the Hearing Examiner’s when it asserted that Elvin and Robert did not discriminate on the basis of sex, that Schmidt acted in pari delicto with Elvin, that Schmidt was aware of the nature of the employment at the Motel prior to her interview with Elvin, and that the quid pro quo exchange did not occur during a genuine employment interview.
¶26 Schmidt argues that the HRC’s conclusion that the harassment did not occur in the employment context is incorrect as a matter of law and incongruent with the legislative intent of §§ 49-2-205 and -303, MCA. Section 49-2-205, MCA, states that the legislature intends the HRC to sit in independent judgment of complaints of alleged discrimination in Montana. Section 49-2-303(l)(a), MCA, prohibits discrimination in the terms or conditions of employment based on sex. ¶27 Schmidt argues that the HRC’s allegedly erroneous conclusion stems from a misapprehension of the facts in this case. In its Order Reversing and Dismissing Final Agency Decision, the HRC stated,
It is unlawful discriminatory practice for an employer to discriminate when interviewing or hiring an individual based upon his or her membership in a protected class. However, it is the determination of the Commission that [the] record does not support the Human Rights Bureau’s conclusion that the alleged harassment occurred in an employment context.... Since the alleged discrimination did not occur in an employment context... the Department of Labor and Industry did not have jurisdiction.
(Internal citations omitted.)
¶28 The presumed basis for the HRC’s conclusion that the Department lacked jurisdiction to entertain Schmidt’s complaint is the HRC’s determination that the Hearing Examiner’s finding of discrimination on the basis of sex was not supported by substantial credible evidence. The HRC found that the parties operated in pari delicto because, it maintains, Schmidt was aware of the nature of the job at the Motel prior to her interview with Elvin. The HRC further found that the quid pro quo exchange, “did not occur during a genuine employment interview,” but rather occurred during Schmidt’s final meeting with Elvin, which was part of the police investigation.
¶29 Schmidt directs our attention to the following Finding in the Final Agency Decision:
Elvin Lou Cook informed Schmidt that she would be required, as an employee of Triple Crown Motor Inn, to have sex with him and with customers of the Triple Crown Motor Inn. The sexual conduct was a condition of her employment. Elvin Lou Cook described in detail a wide range of sexual acts that Schmidt would be required to perform with him and with guests.
Schmidt observes, “There can be no clearer finding of fact that Ms. Schmidt was subjected to quid pro quo sexual harassment during the employment interview process.”
¶30 The Hearing Examiner found that Elvin informed Schmidt during the September 29, 2000, job interview that she would be required to have sex with Elvin and with customers of the Motel as part of her job. It is important to note that this factual finding was undisputed at the hearing level, and that the HRC did not determine that this finding was erroneous or unsupported by the record. Moreover, Elvin admitted at his sentencing in the criminal proceeding that he hired women to perform sexual services at the Motel. Clearly, Elvin’s offer of employment both contained a quid pro quo exchange and occurred when he was interviewing Schmidt. Therefore, there is nothing of record to support the HRC’s conclusion that a quid pro quo exchange “did not occur during a genuine employment interview,” as the HRC found. As pointed out in ¶ 27, the HRC stated in its Order, “It is unlawful discriminatory practice for an employer to discriminate when interviewing or hiring an individual...” (Emphasis added.)
¶31 An agency’s reversal of a hearing examiner’s findings cannot survive judicial review unless the court determines as a matter of law that the hearing examiner’s findings are not supported by substantial evidence. Moran, 270 Mont. at 51, 889 P.2d at 1187. Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance. Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 437, 913 P.2d 1242, 1245 (citation omitted). Our standard is not whether there is evidence to support findings different from those made by the trier of fact, but whether substantial credible evidence supports the trier’s findings. Taylor, 275 Mont. at 440, 913 P.2d at 1246 (citations omitted).
¶32 Our review of the record indicates substantial credible evidence exists to support the Hearing Examiner’s findings. While Schmidt testified that she was aware, prior to her interview with Elvin, that Symington had a sexual relationship with Elvin, she also asserted that she did not know whether Symington was having sex with “johns.” Schmidt did not testify as to whether she believed Symington was having sexual relations with Elvin as part of her job. Schmidt explained that Elvin asked her if she “wanted to have an interview with him about the maid service,” and she agreed. She said it was during that first interview on the morning of September 29 that Elvin informed her that sexual relations with him and with Motel customers would be part of her job duties.
¶33 The Dissent, likewise, asserts that the record reflects that Schmidt knew prior to her interview with Elvin, that the maid position was really a prostitution job. However, the record reflects no such thing. While Schmidt testified that she was aware that Symington was having sexual relations with Elvin, Schmidt further testified that she found out about a job opening at the Motel because Symington told her the Motel was “hiring there for maid service.” She further testified that it was after she made Elvin’s bed during the job interview and he immediately declared that she was hired without making her fill out a job application that she thought things were “weird,” and at that point, he informed her about the sexual component to the “maid” position. Schmidt admitted that she knew that Symington was having sexual relations with Elvin, but further stated that she did not know whether Symington was having sexual relations with “johns” or performing other sexual services at the Motel. This certainly does not support the Dissent’s assertion that she knew Symington worked as a prostitute. The fact of the matter is that Schmidt was a sixteen-year-old girl with an eighth-grade education and no prior employment experience. While the Dissent would like to fault her for the treatment she received dining her interview with Elvin, blaming Schmidt for Elvin’s behavior and Elvin’s crude remarks to her is both offensive and wrong.
¶34 Although there may be evidence in the record to have supported contrary findings, substantial credible evidence exists to support the Hearing Examiner’s findings. Again, the standard is not whether there is evidence to support findings different from those made by the trier of fact, but whether substantial credible evidence supports the trier’s findings. Taylor, 275 Mont. at 440, 913 P.2d at 1246 (citations omitted). Thus, the HRC erred when it overturned those findings and consequently reached a different conclusion. Moreover, because the HRC erred in overturning the finding that discrimination occurred in the employment context, it likewise erred in concluding that the Department did not have jurisdiction in this matter. We therefore conclude that the District Court erred in upholding the HRC’s reversal of the Final Agency Decision.
CONCLUSION
¶35 For the foregoing reasons, we reverse the October 7, 2003, Order of the District Court, and remand for further proceedings consistent with this Opinion.
CHIEF JUSTICE GRAY, JUSTICES NELSON and LEAPHART concur.
|
[
-32,
-24,
-23,
-31,
10,
-20,
-35,
1,
-40,
-55,
-1,
12,
33,
-42,
25,
-27,
-9,
-3,
30,
-41,
69,
-34,
34,
10,
-68,
-13,
35,
29,
-11,
-37,
29,
7,
38,
-27,
31,
-9,
3,
29,
-21,
18,
-25,
47,
-34,
-42,
5,
69,
11,
17,
18,
-40,
-2,
-19,
-43,
60,
20,
-18,
-39,
20,
59,
35,
-26,
56,
32,
-36,
43,
-3,
52,
3,
-33,
25,
33,
-62,
-64,
-42,
-45,
-70,
-12,
17,
-66,
-1,
-1,
-16,
-5,
55,
3,
17,
48,
38,
-16,
51,
-31,
-2,
64,
-4,
-21,
54,
27,
-15,
1,
-22,
3,
-12,
-8,
10,
12,
18,
-4,
11,
55,
1,
6,
-45,
-37,
11,
-10,
16,
43,
-15,
-24,
-61,
5,
63,
53,
51,
43,
2,
9,
-31,
-63,
-18,
-53,
107,
15,
-32,
-9,
-7,
3,
31,
-11,
-51,
51,
31,
9,
81,
2,
-38,
-64,
53,
22,
-54,
6,
-35,
20,
2,
-3,
-80,
17,
12,
-11,
-28,
-9,
-75,
-36,
17,
-5,
-9,
12,
66,
-46,
0,
36,
-49,
-26,
-44,
-25,
8,
-30,
-55,
-21,
-49,
-18,
-6,
-37,
0,
-25,
-33,
90,
-54,
15,
15,
-35,
-30,
-2,
53,
47,
25,
-62,
49,
17,
-13,
22,
27,
24,
11,
63,
9,
-58,
1,
-6,
80,
31,
-8,
4,
-5,
5,
6,
1,
-7,
-24,
33,
31,
-54,
-24,
14,
-50,
0,
-19,
5,
-31,
42,
-29,
-8,
30,
23,
-41,
-20,
42,
-16,
58,
0,
-20,
-5,
31,
65,
-31,
-20,
3,
-21,
21,
12,
44,
-3,
16,
15,
-44,
14,
-7,
-15,
47,
-58,
6,
-56,
-26,
-1,
26,
28,
32,
77,
10,
-54,
-23,
32,
33,
-27,
-10,
37,
48,
29,
23,
-10,
-24,
-1,
-4,
-24,
14,
-42,
70,
16,
64,
-8,
33,
-14,
-56,
-10,
12,
-8,
-51,
36,
-42,
22,
-21,
-28,
6,
29,
22,
18,
11,
23,
18,
-1,
16,
-30,
33,
48,
-5,
22,
-6,
-5,
13,
46,
-14,
-55,
-45,
-3,
-28,
-47,
-84,
-39,
0,
-71,
-18,
26,
11,
33,
39,
15,
-13,
30,
0,
-8,
-16,
-50,
0,
-32,
3,
42,
14,
-3,
-3,
-49,
24,
28,
-5,
-56,
17,
22,
-18,
-23,
2,
-23,
-33,
6,
-44,
-44,
-62,
37,
38,
5,
15,
2,
-29,
-22,
-19,
-17,
12,
-21,
-28,
-9,
0,
2,
18,
-48,
32,
-30,
-63,
56,
-8,
-43,
24,
0,
9,
-24,
4,
39,
-42,
-16,
-4,
2,
99,
-1,
-3,
23,
18,
-31,
14,
24,
11,
-2,
-21,
16,
0,
-3,
36,
19,
-31,
41,
-13,
-49,
11,
19,
-10,
-20,
-12,
41,
54,
3,
-10,
16,
12,
30,
-75,
-103,
-27,
-18,
-13,
23,
36,
-30,
-23,
24,
-44,
50,
-76,
21,
-7,
-12,
-34,
34,
-13,
-21,
3,
26,
62,
24,
35,
-11,
-5,
-30,
-28,
20,
-38,
-4,
-1,
5,
24,
11,
-18,
49,
-128,
27,
19,
2,
24,
-12,
36,
40,
23,
58,
40,
55,
-17,
-6,
24,
3,
-10,
9,
6,
-43,
2,
36,
36,
3,
-28,
38,
0,
-8,
6,
78,
6,
23,
-12,
-41,
30,
-51,
8,
-69,
12,
-14,
-9,
-65,
47,
-26,
10,
47,
-11,
33,
22,
-22,
20,
-34,
49,
22,
20,
21,
9,
33,
-3,
42,
1,
-73,
22,
34,
32,
19,
24,
-2,
71,
-24,
67,
-18,
32,
12,
-27,
29,
14,
4,
39,
-48,
12,
23,
45,
16,
-15,
-78,
9,
39,
-19,
27,
8,
-35,
-42,
76,
35,
51,
7,
29,
-6,
0,
42,
23,
0,
-21,
-49,
-8,
-39,
-17,
8,
-55,
-20,
24,
44,
9,
36,
16,
-67,
-25,
0,
7,
11,
13,
-28,
-28,
-42,
9,
45,
-5,
-11,
-25,
-63,
-53,
50,
-38,
-65,
1,
22,
-19,
10,
45,
-34,
10,
-21,
-13,
-11,
0,
40,
14,
-1,
43,
6,
-9,
0,
101,
-30,
-31,
72,
-3,
-68,
24,
35,
-59,
44,
-20,
58,
-20,
-5,
-40,
49,
-19,
-1,
-74,
88,
9,
4,
53,
7,
28,
56,
-3,
-41,
-31,
29,
10,
6,
4,
20,
-36,
11,
21,
21,
29,
-75,
1,
2,
37,
5,
-67,
39,
-61,
-12,
-8,
-36,
66,
13,
74,
26,
-15,
-29,
-57,
-5,
-1,
33,
-55,
26,
3,
-5,
10,
11,
-23,
-51,
-27,
0,
11,
-14,
-16,
15,
69,
-65,
7,
8,
18,
-37,
3,
0,
-35,
2,
56,
-1,
-84,
18,
13,
63,
-3,
-21,
-1,
-33,
16,
-53,
-14,
-4,
36,
-41,
38,
-15,
-21,
13,
-52,
-35,
-30,
16,
10,
19,
0,
-18,
31,
-16,
12,
-34,
-18,
4,
46,
-21,
89,
34,
-26,
-8,
-14,
78,
-33,
1,
-10,
-20,
8,
-9,
-85,
-17,
39,
41,
3,
-61,
7,
-25,
25,
-25,
-51,
64,
33,
-37,
-25,
16,
-9,
-40,
-4,
2,
21,
-22,
2,
98,
85,
-47,
-82,
22,
14,
-57,
26,
3,
119,
62,
-3,
36,
-3,
-39,
-19,
-34,
-43,
-11,
27,
9,
-46,
-64,
-45,
6,
37,
-22,
9,
-4,
28,
-40,
-39,
-19,
3,
-1,
-5,
40,
11,
7,
-29,
54,
26,
26,
-62,
58,
-89,
-3,
-8,
43,
8,
-24,
26,
-8,
-21,
6,
2,
-50,
17,
-5,
11,
-57,
-3,
15,
-4,
34,
56,
-3,
25,
17,
-9,
39,
85,
51,
-19,
-3,
-9,
36,
-3,
19,
-13,
-1,
-39,
47,
-55,
19,
20,
-30,
2,
-20,
19,
4,
-46,
84,
-29,
-26,
-1,
37,
-14,
-48,
-29,
67,
31,
0,
4,
-11,
5,
8,
48,
84,
18,
-15,
36,
-46,
-6,
-21,
-5,
5,
24,
-8,
87,
5,
-22,
-20,
-77,
-35,
82,
-37,
25,
17,
3,
6,
-7,
-60,
-18,
-31,
0,
16,
28,
1,
-46,
-59,
-55,
32,
-38,
30,
-8,
19,
1,
38,
-24,
-40,
10,
-54,
51,
-1,
-30,
-32,
64,
23,
-5,
-27,
26,
-58,
10,
-32,
4,
-30,
-19,
-5,
-45,
-74,
-39,
23,
-12,
-34,
62,
-18,
41,
44,
17,
-6,
0,
-46,
-8,
-81,
10,
42,
-10,
10,
16,
32,
-4,
-3,
-65,
7,
42,
29,
-1,
-73,
-19,
-29,
50,
1,
-18,
-17,
-10,
-10,
26,
6,
14,
-20,
-11,
-15,
-10,
-1,
-21,
-35,
24,
28,
-34,
-21,
-11,
32,
-8,
-49,
25,
-51,
-19,
-42,
12,
7,
-71,
3,
11,
31,
-32,
49,
40,
-11,
-20,
-20,
-25,
-2,
-24,
-32,
-24,
17,
-19
] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶ 1 Tex Cates appeals from the District Court’s dismissal of his third-party complaint against Alan F. Blakley for failure to state a claim upon which relief may be granted. We affirm.
BACKGROUND
¶2 David and Linda Brown, acting through Golden Years Country Living, Inc., owned an assisted living facility on property in Missoula County, Montana. After adding eleven rooms to the building in 1996, the Browns listed the property for sale with real estate agent Cates in 1999. Cates made contact with the potential buyers, David and JoLynn Dennis, and advertised the property as having seventeen residential rooms. The Dennises allege that both he and the Browns told them orally and in writing that the business had great income generation and expansion opportunities, and the real estate had subdivision possibilities.
¶3 Blakley served as the Dennises’ attorney for the transaction. In an April 2000 meeting, Blakley asked Cates about the zoning laws applicable to the property and Cates gave Blakley a document explaining the zoning. In the section entitled “Conditional Uses,” that document specified the property’s zoning restriction allowed a “Community residential facility serving less [sic] than (9) persons.” Blakley did not tell the Dennises about these zoning restrictions. The Dennises obtained financing and bought the property. Several months later, they discovered that the zoning laws restricted the use of the property to a community residential facility serving fewer than nine people and restricted them from subdividing the property.
¶4 The Dennises initially sued the Browns, Golden Years Country Living, Inc., and Tex Cates for negligent misrepresentation; constructive fraud; and the Browns, only, for actual fraud. The Dennises eventually amended their complaint to include two other parties as defendants. Cates alleged comparative negligence of the Dennises and their agents as an affirmative defense. Nevertheless, Cates, as a third-party plaintiff under Rule 14(a), M.R.Civ.P., sued Blakley for contribution under § 28-10-602, MCA (1999), alleging that Blakley had a duty to disclose to the Dennises the document explaining the applicable zoning laws and to explain their significance. The District Court dismissed the third-party suit for failure to state a claim upon which relief may be granted under Rule 12(b)(6), M.R.Civ.P.
STANDARD OF REVIEW
¶5 After admitting all well-pled allegations in the complaint, we review de novo amotion to dismiss under Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief may be granted. Missoula City-County Air Pollution Control Bd., 282 Mont, at 259, 937 P.2d at 466; Cowan v. Cowan, 2004 MT 97, ¶ 10, 321 Mont. 13, ¶ 10, 89 P.3d 6, ¶ 10. This Court will dismiss a complaint for failure to state a claim if the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Cowan, ¶ 10.
DISCUSSION
¶6 Cates alleges that the District Court improperly dismissed his third-party suit against Blakley for contribution. The District Court adopted reasoning from Commercial Standard Title Co. v. Superior Court (Cal. Ct. App. 1979), 155 Cal.Rptr. 393, 400-01, a California Court of Appeal ruling that public policy prevented a defendant from bringing a contribution claim against a plaintiff s lawyer in an ongoing negligence and fraud proceeding between the plaintiff and the defendant. The District Court agreed with the California Court of Appeal and dismissed the suit. This Court affirms a district court’s results if those results are correct even if the district court reached that result for the wrong reason. Schaefer v. Egeland, 2004 MT 199, ¶ 11, 322 Mont. 274, ¶ 11, 95 P.3d 724, ¶ 11.
¶7 Section 28-10-602, MCA (1999), provides as follows:
Principal’s responsibility for agent’s negligence, omissions, and wrongs. (1) Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.
(2) A principal is responsible for no other wrongs committed by his agent than those mentioned in subsection (1) unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service.
In light of the principal’s (the Dennises’) statutory liability for the acts of the agent (Blakley) and given that Cates, in his answer to the Dennises’ complaint, has alleged the comparative negligence of the Dennises and their agents, a question arises as to whether Cates’s third-party complaint against Blakley, if allowed to proceed, would affect the rights or legal relationships of the parties. In other words, does the dismissal of Cates’s third-party complaint in this case present a justiciable controversy?
¶8 Before a court can consider the merits of an issue, the parties must first present a justiciable controversy. Powder River County v. State, 2002 MT 259, ¶ 101, 312 Mont. 198, ¶ 101, 60 P.3d 357, ¶ 101. Further, this Court can raise questions of justiciability sua sponte. Jumping Rainbow Ranch v. Conklin (1973), 162 Mont. 128, 129, 509 P.2d 292, 293. This Court has defined the boundaries of a justiciable controversy as follows:
The courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matter, provide for contingencies which may hereafter arise, or give abstract opinions.
Seubert v. Seubert, 2000 MT 241, ¶ 19, 301 Mont. 382, ¶ 19, 13 P.3d 365, ¶ 19.
¶9 In the present case, Cates, in answering the Dennises’ complaint, has, as an affirmative defense, alleged that the Dennises and their agents (including Blakley) were comparatively negligent. Assuming, arguendo, that agent Blakley was negligent, his negligence would be imputed to his principals, the Dennises. Section 28-10-602, MCA (1999). Under the doctrine of comparative negligence, the damages, if any, that the Dennises recover against Cates will be diminished in the proportion to the percentage of negligence attributable to the Dennises and their agents. Section 27-1-703, MCA (1999). If the Dennises’ damages are diminished in proportion to Blakley’s negligence, Cates will have no grounds for seeking contribution from Blakley. Cates’s attempt to seek contribution from Blakley via a third-party complaint is subsinned in his answer to the complaint wherein he alleges comparative negligence. Moot is an adjective meaning “[hjaving no practical significance; hypothetical or academic.” Black’s Law Dictionary. 1029 (8th ed. 2004). Since the issue of Blakley’s negligence as an agent, if any, is contained in the pleadings presently before the court, a ruling on whether Cates can assert a duplicative claim for contribution by way of a third-party complaint would have no practical effect on the controversy. The issue is thus moot or academic, and we need not address the public policy concerns relied upon by the District Court.
¶10 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES WARNER, COTTER and NELSON concur.
The appellant/defendant/third-party plaintiff incorporated the plaintiffs’ complaint by reference, so the facts of this section originated in the plaintiffs’ complaint. If the plaintiffs’ complaint and the third-party plaintiffs complaint differ with respect to any particular fact, this Court accepts as true the factual allegations in the third-party plaintiffs complaint and construes other factual allegations in the light most favorable to the third-party plaintiff. Szollosy v. Hyatt Corp. (D. Conn., 2002), 208 F.Supp.2d 205, 207 n.2; Missoula City-County Air Pollution Control Bd. v. Bd. of Envtl. Review (1997), 282 Mont. 255, 259, 937 P.2d 463, 466.
|
[
22,
24,
16,
-26,
28,
-30,
23,
72,
-15,
57,
-28,
13,
16,
-6,
35,
-25,
-16,
10,
-22,
-16,
-15,
-22,
-50,
17,
3,
-28,
14,
11,
6,
-49,
32,
-55,
-17,
-24,
-27,
67,
18,
6,
-15,
23,
-10,
-33,
9,
-27,
-3,
33,
-28,
4,
29,
-12,
19,
-30,
41,
0,
-48,
-57,
-27,
22,
17,
29,
-16,
-3,
2,
-17,
49,
29,
44,
-30,
45,
-39,
17,
-7,
-4,
6,
1,
-38,
13,
9,
-52,
-31,
-29,
4,
25,
-5,
10,
-12,
9,
-11,
10,
40,
-61,
-25,
46,
28,
16,
1,
15,
43,
-6,
19,
-15,
22,
32,
43,
24,
14,
1,
-27,
60,
9,
-63,
-21,
-10,
9,
-19,
18,
10,
17,
-48,
24,
-20,
-11,
17,
14,
12,
9,
14,
46,
-34,
38,
4,
8,
-37,
20,
-42,
12,
0,
-43,
-32,
-28,
13,
4,
1,
-6,
16,
-5,
-23,
-20,
-26,
-11,
-10,
30,
-48,
23,
10,
-34,
-12,
-19,
1,
-24,
51,
-49,
-7,
32,
-44,
1,
17,
44,
-30,
-5,
44,
0,
-49,
-1,
33,
23,
30,
-34,
-51,
0,
-26,
7,
-10,
11,
2,
-15,
55,
-12,
-15,
-5,
42,
-40,
-25,
45,
-39,
6,
-2,
30,
-5,
-31,
-5,
-21,
25,
11,
5,
-1,
-20,
27,
29,
12,
-19,
-22,
-19,
-31,
7,
-7,
8,
11,
39,
11,
4,
-20,
-33,
24,
-4,
-9,
8,
-16,
20,
-26,
-54,
0,
17,
23,
-35,
-42,
-12,
8,
-23,
3,
51,
6,
-45,
3,
5,
46,
-7,
-29,
0,
-46,
-43,
-19,
15,
29,
39,
-8,
17,
13,
-1,
-29,
8,
-7,
-39,
-7,
28,
-28,
-29,
-11,
-25,
19,
-42,
3,
-7,
35,
-36,
-64,
-5,
18,
21,
-42,
27,
-30,
32,
2,
15,
24,
32,
14,
-50,
1,
-29,
-7,
-38,
24,
17,
5,
2,
-8,
-1,
-14,
-54,
10,
16,
23,
31,
-10,
-3,
26,
14,
26,
39,
29,
7,
-20,
-24,
-19,
-32,
-11,
30,
-69,
68,
-18,
40,
31,
-8,
-34,
24,
-38,
17,
5,
6,
-14,
9,
-14,
12,
10,
48,
-68,
-5,
-9,
-13,
-8,
10,
-27,
23,
36,
-41,
-5,
-62,
-1,
22,
-5,
-17,
-13,
35,
30,
37,
-8,
-48,
1,
13,
-3,
-33,
-17,
-43,
3,
-16,
-23,
25,
11,
-32,
20,
-19,
9,
-2,
-14,
-26,
13,
-51,
19,
29,
-16,
17,
34,
25,
43,
-55,
-40,
21,
0,
-59,
-29,
31,
38,
0,
-35,
-20,
-17,
-6,
-1,
12,
47,
-33,
-31,
-56,
-6,
22,
13,
-51,
20,
-16,
-28,
41,
-8,
-1,
41,
-2,
7,
-7,
8,
11,
-21,
11,
-29,
-24,
-20,
10,
40,
-5,
37,
-38,
16,
-12,
-33,
39,
10,
-8,
-16,
-46,
32,
4,
3,
11,
-46,
32,
-8,
-7,
42,
49,
-31,
-10,
26,
-29,
0,
-10,
-18,
73,
-34,
-18,
-36,
43,
7,
-14,
8,
10,
-3,
-1,
-12,
-8,
29,
9,
32,
-13,
28,
32,
23,
-25,
26,
-42,
14,
25,
14,
10,
17,
11,
11,
-40,
0,
-16,
15,
32,
36,
26,
-43,
-25,
-20,
46,
11,
-17,
-19,
25,
-20,
23,
-35,
-1,
-22,
-17,
3,
-7,
80,
1,
-38,
41,
14,
26,
26,
55,
-52,
-35,
-10,
23,
-12,
-14,
-18,
-28,
0,
-7,
9,
83,
-10,
-12,
31,
24,
-18,
15,
-10,
40,
40,
37,
-27,
-23,
34,
-17,
20,
-28,
44,
0,
-9,
63,
-10,
19,
-61,
15,
19,
33,
9,
-27,
-11,
39,
33,
50,
59,
35,
12,
34,
0,
27,
-25,
-21,
14,
-62,
-42,
0,
-21,
-38,
-77,
-7,
-3,
-11,
36,
-47,
0,
43,
-37,
-35,
22,
52,
2,
9,
21,
26,
-30,
-22,
30,
-18,
3,
-13,
-55,
-41,
13,
-13,
-68,
-6,
-31,
22,
-16,
-30,
8,
0,
34,
-9,
45,
-33,
0,
20,
42,
-2,
-66,
24,
6,
17,
0,
37,
-12,
12,
22,
-23,
72,
-7,
0,
53,
-29,
14,
-60,
35,
13,
11,
21,
-33,
-13,
-8,
28,
-8,
-16,
24,
-25,
9,
5,
15,
-45,
-21,
62,
-10,
-19,
10,
25,
-6,
6,
-5,
-16,
25,
-23,
-8,
-7,
-45,
-35,
23,
-43,
-4,
36,
1,
-14,
11,
107,
-9,
24,
-1,
-24,
31,
-23,
32,
-63,
8,
3,
0,
-35,
26,
-43,
-6,
1,
-13,
-40,
17,
-36,
-55,
49,
-31,
-21,
15,
-10,
8,
8,
29,
-18,
-30,
69,
38,
-16,
-32,
-8,
-4,
21,
-6,
-20,
0,
23,
-5,
11,
-16,
-12,
-2,
-1,
-30,
-44,
20,
-27,
52,
30,
-13,
49,
-19,
39,
-1,
43,
-51,
44,
-25,
-18,
24,
8,
-39,
38,
4,
30,
14,
-51,
65,
6,
7,
-35,
67,
0,
1,
39,
-6,
-65,
-30,
66,
-1,
-16,
16,
16,
-54,
6,
-9,
-4,
22,
-21,
-21,
-14,
2,
32,
-14,
12,
-21,
0,
36,
30,
-3,
-31,
24,
-24,
-47,
-16,
23,
38,
23,
51,
-9,
19,
-23,
34,
8,
-10,
-25,
-27,
52,
13,
-27,
-51,
34,
8,
26,
27,
-3,
-15,
-24,
-8,
55,
-16,
-30,
-53,
7,
-20,
-33,
-31,
-5,
26,
-22,
-9,
8,
-36,
-51,
10,
-15,
-13,
-12,
0,
-23,
-4,
-12,
-33,
-17,
48,
2,
-50,
10,
18,
1,
-11,
-18,
-8,
-66,
47,
14,
-34,
-23,
13,
7,
-29,
-75,
-24,
54,
-53,
15,
2,
-15,
-7,
50,
15,
49,
0,
-12,
33,
-30,
-69,
55,
41,
38,
37,
6,
24,
34,
13,
61,
17,
30,
33,
28,
-20,
-11,
-4,
-107,
46,
6,
55,
7,
-45,
-21,
-10,
9,
-12,
-33,
24,
17,
-24,
-19,
-29,
35,
-47,
-3,
12,
-20,
-44,
-28,
5,
-14,
21,
-29,
11,
-5,
6,
10,
-33,
-79,
-49,
-18,
-1,
-11,
74,
22,
-7,
-41,
25,
6,
-30,
-10,
51,
-6,
81,
-16,
38,
-32,
5,
0,
-4,
-20,
0,
-31,
-16,
12,
3,
36,
-17,
-23,
-29,
6,
-52,
29,
-5,
-58,
56,
35,
33,
21,
3,
-37,
0,
2,
-34,
-55,
68,
-16,
-33,
23,
-1,
31,
16,
-17,
-17,
-5,
-47,
-8,
11,
0,
22,
0,
35,
-8,
-1,
33,
13,
0,
16,
-6,
35,
-2,
9,
-13,
-11,
51,
22,
8,
-6,
16,
-7,
9,
2,
-20,
-24,
-35,
-1,
-34,
-22,
15,
15,
62,
-19,
59,
-20,
-27,
-15,
27,
-23,
-13,
-15,
-2,
26,
-16,
-30,
-22,
41,
-26,
-3
] |
JUSTICE WARNER
delivered the Opinion of the Court.
¶ 1 Michael Gene McCollom (“McCollom”) was convicted in the Third Judicial District Court, Powell County of felony sexual assault against two nine year old girls, one the daughter of McCollom’s live-in girlfriend, J. S., and the other a friend of the daughter. He appeals from an Order of the District Court denying his Motion to Suppress entered on May 19, 2003. We affirm.
¶2 The issue on appeal is whether the District Court erred in refusing to suppress incriminating statements McCollom made to law enforcement after he was arrested?
¶3 McCollom was arrested at approximately 10:00 a.m. on December 20, 2002, pursuant to a valid arrest warrant. McCollom had been informed by J.S. that she filed a complaint against him and that he was going to be arrested for sexual assault. J.S. informed the Powell County SherifFs Department that McCollom was planning on returning to Montana from Arizona, where he had been living since the incident occurred. McCollom was driving J.S.’s van. J.S. agreed to meet McCollom in Rocker on December 20, 2002, so that she could drive with him to Missoula, where McCollom planned to consult an attorney. J.S. agreed to contact the Sheriff when they left Rocker. McCollom was arrested by the Sheriff when he entered Powell County on Interstate 90, and was taken to the Powell County Jail.
¶4 At approximately 2:00 p.m. that day Captain Pat George (“Cpt. George”) of the Powell County SherifFs Department interviewed McCollom. At the beginning of the interview, Cpt. George described to McCollom some of the information he had gathered, played a portion of a taped interview with one of the victims, and advised him of his Miranda rights. McCollom waived his Miranda rights, signed a waiver of rights form and agreed to speak with Cpt. George. The interview was then tape recorded.
¶5 McCollom, through counsel, filed a Motion to Suppress all oral, written, and transcribed admissions and confessions given by McCollom during the investigation. After a hearing the District Court denied the motion.
¶6 McCollom entered a guilty plea to both counts of felony sexual assault, reserving his right to appeal the Order denying his Motion to Suppress. McCollom was sentenced to Montana State Prison. He now appeals the denial of his Motion to Suppress.
¶7 This Court’s review of a district court’s denial of a Motion to Suppress is twofold: first, we review the court’s findings of fact to determine whether they are clearly erroneous, that is, whether the findings are supported by substantial evidence, whether the district court misapprehended the effect of the evidence, or whether this Court is nevertheless left with a definite and firm conviction that the district court made a mistake. State v. Gouras, 2004 MT 329, ¶ 12, 324 Mont. 130, ¶ 12, 102 P.3d 27, ¶ 12. Second, we engage in a plenary review of the conclusions of law to determine whether the district court’s interpretation of the law is correct. Gouras, ¶ 12.
¶8 McCollom first argues the District Court erred in not suppressing the statements he made to Cpt. George because he was denied his Fifth and Sixth Amendment right to counsel under the United States Constitution and Article II, Section 24 of the Montana Constitution. McCollom argues that the sheriff, knowing he was on his way to Missoula to consult with an attorney, arrested him to prevent him from seeking the assistance of legal counsel. He says his actions in driving from Arizona to Montana to consult with an attorney constituted a clear and unambiguous statement that he wanted to consult with counsel before being questioned by the police. According to McCollom, since his desire to consult with counsel was known to Cpt. George, he should not have been subject to questioning until an attorney was made available to him.
¶9 In support of this novel argument he cites State v. Spang, 2002 MT 120, ¶ 25, 310 Mont. 52, ¶ 25, 48 P.3d 727, ¶ 25 (holding defendant’s statement that “I need a lawyer, man” was sufficient to invoke his right to counsel, and thus subsequent statements were inadmissible at trial). However, in Spang, the defendant specifically requested to see a lawyer while being interviewed by the police. Spang, ¶ 25. McCollom failed to make any request whatever to speak with an attorney, before or during his interrogation. Also, there is no evidence in the record that Cpt. George arrested McCollom en route to Missoula so that he could prevent him from seeking legal counsel. Cpt. George was acting on a valid arrest warrant, which granted him the authority to arrest McCollom at any time of the day or night. See § 46-6-210, MCA; § 46-6-105, MCA. After his arrest, McCollom could have, at any time, invoked his right to consult with a lawyer.
¶10 McCollom next argues that Cpt. George utilized improper interrogation techniques warranting suppression of his confession because the interview took place after he had been awake for more than 30 hours, he was told that J.S. was going to testify against him, and he was not read his Miranda rights immediately, that is, before he was given any information. See State v. Mayes (1992), 251 Mont. 358, 377, 825 P.2d 1196, 1208 (holding the defendant’s confession should have been suppressed where the defendant had been awake for 30 hours, was questioned continually, was separated from his children and was lied to regarding the evidence against him); State v. Grey (1995), 274 Mont. 206, 212, 907 P.2d 951, 955 (holding defendant’s confession was inadmissible where police failed to give the defendant an adequate Miranda warning).
¶11 An analysis of the voluntariness of a confession is a factual question which must take into account the totality of the circumstances. Mayes, 251 Mont, at 376, 825 P.2d at 1208. The totality of the circumstances test requires the district court to consider “the defendant’s age and level of education; the interrogation technique and whether the defendant was advised of his Miranda rights; the defendant’s prior experience with the criminal justice system and police interrogation; and the defendant’s background and experience.” State v. Hill, 2000 MT 308, ¶ 39, 302 Mont. 415, ¶ 39, 14 P.3d 1237, ¶ 39.
¶12 The District Court found that McCollom was fully advised of his right to counsel by both a Justice of the Peace and by Cpt. George. McCollom signed a waiver of rights, admitted that he was advised of his rights, that he understood them, and that he consented to the interrogation. McCollom stated he did not feel threatened or mistreated by Cpt. George. The District Court found even though McCollom had been awake for 30 hours at the time of the interview, his answers were responsive and alert. Accordingly, the District Court concluded that McCollom made a knowing and voluntary waiver of his rights. The District Court’s findings are based on substantial evidence and are not clearly erroneous.
¶13 McCollom finally argues that his statements should have been suppressed because Cpt. George exerted improper influence on him by promising him leniency and sexual offender treatment in exchange for his confession. According to McCollom, this is enough to show that his confession was not made voluntarily. See State v. Phelps (1985), 215 Mont. 217, 224, 696 P.2d 447, 451 (to be voluntary, a confession must not be extracted by threat of violence, obtained by direct or implied promises or by improper influence).
¶14 McCollum testified that prior to turning the tape recorder on, Cpt. George told him that he would end up in prison for a lengthy prison term if he did not cooperate and that he would get some help if he did cooperate. To the contrary, Cpt. George testified that he did not say anything to McCollom about his getting treatment prior to reading him his rights and turning on the tape recorder. The District Court personally observed and listened to the witnesses as the finder of fact and found Cpt. George’s testimony more credible, stating:
There is conflicting testimony given by Captain George, the Defendant and the victim’s mother as to the Defendant’s mental state, threats of prison terms, and promises for help. The [cjourt finds that Captain George’s testimony is credible and is corroborated in large part by the recorded tape and transcript and Defendant’s testimony that he was not threatened or mistreated.... He was told towards the end of the interview that Captain George would guarantee Defendant that Captain George would do everything he could to get the Defendant help. Captain George’s statement was mostly after the fact and was not a critical factor in the statements made by Defendant. Also, Defendant claims that he made statements to Captain George prior to the tape being turned on. However, the only statements being used against the Defendant are those set forth on the tape after Defendant was advised of his rights on a[t] least two occasions.
The [c]ourt concludes that the Defendant made a knowing and voluntary waiver of his rights prior to giving Captain George the recorded statement.
¶15 “The credibility of witnesses and the weight given to their testimony are determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal.” State v. Larson, 2004 MT 345, ¶ 53, 324 Mont. 310, ¶ 53, 103 P.3d 524, ¶ 53.
¶16 There is sufficient evidence in the record to support the findings of fact made by the District Court. They are not clearly erroneous. The District Court correctly applied the law to the facts.
¶17 We affirm.
CHIEF JUSTICE GRAY, JUSTICES COTTER, NELSON and RICE concur.
|
[
15,
-21,
-48,
36,
-15,
-46,
-52,
-10,
-40,
16,
-26,
-3,
0,
0,
-2,
-10,
4,
-24,
25,
-11,
20,
0,
2,
42,
-89,
-49,
-34,
27,
-66,
9,
4,
-9,
14,
-99,
52,
27,
38,
23,
-18,
7,
-4,
11,
-11,
-52,
-26,
29,
6,
33,
-13,
-7,
41,
-21,
27,
35,
25,
-37,
20,
6,
-15,
45,
-33,
54,
-3,
-25,
1,
-56,
20,
-1,
26,
5,
12,
-30,
-59,
-5,
8,
-2,
-48,
-26,
3,
28,
-9,
42,
-7,
19,
76,
-19,
-40,
-20,
-14,
67,
13,
-66,
14,
-52,
-2,
-58,
29,
-35,
6,
-11,
31,
-50,
-47,
13,
18,
12,
-34,
29,
77,
20,
-18,
-26,
1,
-33,
3,
-45,
14,
31,
3,
-1,
16,
34,
-16,
47,
8,
-37,
54,
-34,
-12,
9,
-2,
49,
38,
-35,
55,
-15,
-4,
24,
8,
-23,
37,
0,
16,
29,
5,
12,
-3,
-19,
50,
35,
-9,
27,
-1,
33,
34,
-24,
18,
-30,
-35,
10,
4,
-15,
-33,
19,
2,
8,
-33,
-44,
-52,
-29,
31,
7,
-57,
56,
6,
27,
-52,
-33,
34,
-22,
-33,
-4,
23,
-35,
-7,
15,
37,
-4,
-16,
-1,
-35,
24,
37,
-30,
5,
3,
20,
-12,
25,
-17,
12,
-3,
19,
47,
5,
11,
35,
28,
61,
23,
43,
12,
5,
-10,
-3,
-36,
2,
-42,
-64,
-20,
25,
7,
14,
-9,
7,
-70,
0,
24,
-56,
-14,
36,
61,
-11,
8,
-1,
-27,
-12,
11,
24,
-4,
-9,
-17,
5,
-9,
38,
37,
-41,
-62,
3,
-26,
43,
-1,
-12,
54,
-3,
-12,
45,
3,
-35,
-5,
29,
-4,
16,
1,
-32,
39,
-40,
-8,
-7,
6,
18,
-4,
40,
-4,
15,
-7,
16,
32,
-17,
-39,
1,
-31,
-15,
-15,
-3,
-59,
-12,
22,
23,
-17,
7,
-41,
-60,
-35,
11,
-9,
5,
20,
-41,
-33,
62,
19,
-36,
-29,
-25,
9,
-14,
58,
-59,
20,
4,
41,
9,
23,
31,
13,
0,
10,
55,
13,
-61,
-31,
-16,
-67,
24,
-1,
51,
-6,
-23,
-23,
-43,
23,
-32,
4,
59,
16,
-14,
6,
4,
9,
-22,
-63,
-6,
4,
-56,
57,
-7,
69,
-8,
-22,
14,
-10,
19,
-20,
-35,
2,
-42,
-29,
40,
-28,
-3,
19,
-53,
-50,
20,
26,
26,
16,
18,
-2,
27,
-27,
-5,
8,
19,
0,
44,
-29,
-28,
11,
28,
4,
10,
-31,
37,
-2,
6,
-29,
47,
5,
4,
-39,
-13,
-23,
-10,
-21,
34,
-23,
75,
-21,
-3,
-12,
44,
3,
-24,
-7,
26,
44,
-32,
-23,
2,
54,
-21,
9,
9,
14,
-31,
-29,
-25,
-16,
0,
-7,
57,
-33,
81,
33,
-11,
15,
-7,
-10,
17,
-26,
-23,
-32,
-16,
-15,
-19,
13,
-42,
-16,
-39,
-27,
-9,
-22,
-17,
-38,
28,
-48,
6,
-45,
-9,
40,
21,
-40,
9,
59,
-7,
-3,
-4,
-13,
16,
21,
2,
7,
17,
-11,
-6,
-57,
-7,
19,
21,
15,
-13,
1,
-9,
50,
-13,
17,
-19,
18,
42,
7,
28,
19,
6,
14,
16,
-1,
42,
-8,
-19,
-23,
-19,
-37,
-1,
60,
59,
23,
24,
-46,
-12,
-14,
-19,
19,
11,
-13,
68,
41,
-35,
-34,
2,
8,
-30,
1,
-73,
0,
27,
-7,
-18,
46,
75,
3,
49,
10,
-60,
35,
-26,
-26,
5,
-17,
32,
-10,
-15,
-41,
59,
45,
52,
-38,
-2,
-8,
65,
-54,
17,
14,
5,
-11,
64,
-27,
25,
-31,
19,
-17,
40,
-67,
-26,
17,
0,
18,
-30,
-8,
17,
-3,
48,
32,
1,
15,
-34,
-20,
42,
-27,
-5,
0,
-32,
-39,
12,
-8,
48,
23,
61,
73,
28,
-6,
-20,
23,
-55,
-35,
23,
57,
49,
-10,
0,
-11,
2,
13,
-19,
-7,
-29,
-27,
-35,
-1,
3,
-17,
54,
-7,
80,
35,
57,
-7,
-13,
-29,
-28,
44,
51,
14,
18,
-6,
-33,
13,
-36,
-17,
-67,
-56,
13,
25,
-13,
-61,
-28,
-17,
10,
-19,
-35,
-55,
14,
8,
-21,
0,
-2,
-5,
-27,
19,
51,
63,
-5,
21,
25,
40,
37,
-16,
-49,
-39,
-45,
-15,
14,
-16,
9,
-27,
-24,
-13,
45,
35,
28,
38,
-43,
24,
12,
-20,
13,
-1,
46,
32,
16,
23,
-10,
-14,
25,
-3,
40,
-23,
7,
20,
51,
-8,
39,
-16,
32,
43,
0,
9,
-7,
27,
21,
14,
52,
-6,
1,
-17,
-7,
-29,
-40,
-1,
12,
21,
-26,
-18,
-17,
0,
-1,
-61,
-11,
46,
-14,
70,
-4,
5,
-23,
-40,
-5,
-34,
-51,
34,
-46,
-18,
-48,
-1,
66,
-14,
-29,
16,
21,
-29,
1,
7,
13,
-15,
-18,
6,
-35,
76,
3,
58,
-4,
-19,
-4,
-35,
3,
6,
26,
-32,
19,
14,
17,
15,
16,
-9,
-35,
54,
54,
1,
-47,
-23,
39,
-12,
21,
-1,
-26,
3,
19,
15,
63,
-39,
35,
-41,
10,
31,
-61,
-21,
44,
49,
6,
17,
-13,
36,
-53,
21,
0,
8,
18,
-32,
-29,
20,
26,
14,
7,
-10,
11,
40,
37,
-46,
-59,
6,
5,
-24,
8,
-29,
-28,
21,
-5,
13,
-1,
19,
35,
17,
25,
-5,
-16,
-24,
-15,
-4,
-24,
-77,
18,
-41,
-45,
-3,
11,
-4,
24,
-29,
13,
-40,
-19,
29,
-4,
34,
-13,
-51,
6,
-43,
-2,
17,
2,
1,
-9,
-63,
115,
28,
40,
-18,
44,
8,
16,
-5,
6,
18,
-13,
8,
-19,
4,
30,
-17,
-9,
34,
-80,
-40,
16,
-32,
82,
-46,
34,
6,
-26,
-21,
48,
39,
-44,
-32,
-2,
-27,
-39,
56,
36,
-38,
-16,
7,
10,
-26,
-43,
-21,
5,
-61,
-29,
-10,
-5,
9,
-6,
82,
0,
11,
38,
-56,
12,
-43,
2,
51,
40,
0,
82,
-20,
11,
6,
-73,
-12,
20,
-46,
-13,
5,
-19,
12,
-6,
-6,
36,
30,
-1,
80,
6,
-10,
-45,
-48,
-54,
45,
-35,
37,
13,
-38,
-31,
19,
54,
-1,
12,
18,
28,
-2,
-7,
11,
22,
40,
-9,
-72,
-29,
38,
6,
12,
-29,
41,
17,
-23,
-2,
11,
-36,
-40,
-23,
28,
-31,
5,
-76,
20,
12,
32,
-15,
9,
-26,
-18,
-17,
11,
24,
0,
25,
-28,
4,
-21,
-36,
-30,
-21,
-4,
26,
7,
-20,
53,
-5,
-15,
40,
-19,
-25,
33,
25,
25,
-33,
-70,
-5,
-38,
-35,
60,
-43,
-45,
-9,
-7,
-41,
-23,
15,
18,
49,
1,
17,
-39,
-18,
-34,
21,
21,
17,
26,
-80,
2,
10,
10
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 This case is one of 23 lawsuits filed by individual investors against U.S. Bancorp Piper Jaffray, Inc. (Piper), Robert English (English), and Tom O’Neill (O’Neill). The plaintiff investors made various common law tort claims arising from the alleged mismanagement of their accounts created and maintained by Piper’s branch office in Butte, Montana. O’Neill, who was a securities broker in Piper’s Butte office, allegedly took the actions that gave rise to the lawsuits, and English was O’Neill’s direct supervisor throughout this time. In response to the lawsuits, Piper filed motions to compel arbitration in each case, seeking to enforce “pre-dispute” arbitration clauses-that is, clauses in the account agreements which required any dispute be resolved by arbitration. Piper’s motions to compel arbitration led to a series of hearings by a panel of three district court judges, who were sitting individually on the cases, but who sat era banc to hear evidence common to all 23 cases. In addition, individual hearings were held with respect to several of the individual plaintiffs. While Piper called common witnesses to testify, O’Neill, in a prior discovery deposition, invoked his Fifth Amendment right against self-incrimination and did not offer testimony regarding the accounts at issue.
¶2 Harry Willems (Willems) is the plaintiff in this matter. On April 7,2004, the Second Judicial District Court, Silver Bow County, denied Piper’s motion to compel arbitration of Willems’s claims, and Piper appeals therefrom. We affirm.
¶3 The following issues are raised on appeal in regard to the District Court’s denial of Piper’s motion to compel:
¶4 Did the District Court err in holding that the PAT Plus Agreements created a fiduciary duty between Piper and Willems that was breached by Piper?
¶5 Did the District Court violate the Federal Arbitration Act and Montana law by holding the arbitration agreement to a different contractual standard when it concluded the PAT Plus Agreements were contracts of adhesion?
¶6 Did the District Court err in applying the Kloss factors?
¶7 Did the District Court err in holding that Willems failed to effectively waive his constitutional rights?
¶8 Is the securities arbitration process, held before a self-regulatory organization overseen by the United States Securities and Exchange Commission, fair and reasonable as a matter of law?
¶9 The District Court’s order offered an extensive analysis of all issues raised by the parties. The District Court determined that the PAT Plus Agreements were contracts of adhesion; that Piper’s prearbitration dispute provisions were unconscionable and not within plaintiffs’ reasonable expectations; that Piper failed to demonstrate that plaintiffs voluntarily, knowingly, and intelligently waived their constitutional rights to a jury trial and access to the court; Piper failed to demonstrate that plaintiffs received or reviewed the arbitration provision; and that a fiduciary duty was created by Piper’s PAT Plus Agreements and breached by the defendants. We conclude that the issue pertaining to the fiduciary duty is determinative on appeal and therefore will not address the other issues, except as necessary to resolve the dispositive issue.
FACTUAL AND PROCEDURAL BACKGROUND
¶10 In 1986, Willems retained O’Neill as his broker and financial advisor to help him open a Self-Directed Individual Retirement Account (1986 IRA). Later that year, Willems opened a Joint Piper Automatic Transfer Account with his wife Marie Willems, which he later upgraded to a Co-Owner Piper Automatic Transfer Plus Account in 1995. On November 9, 1993, Willems opened a Co-Owner Piper Automatic Transfer Plus Account with his mother Bernice Willems. The 1993 and 1995 Piper Automatic Transfer Plus Account agreements hereinafter shall be collectively referred to as the “PAT Plus Agreements.”
¶11 Willems claims that O’Neill, supervised by English, engaged in unlawful, unreasonable, and unethical conduct relating to the 1986 IRA, which did not contain a pre-dispute arbitration clause. Willems contests Piper’s invocation of the PAT Plus Agreements’ arbitration clauses because: (1) his claims are not based upon transactions in these accounts; and (2) Willems was informed that the PAT Plus Agreements were entirely separate and distinct from his 1986 IRA, and therefore had no affect on his 1986 IRA. Conversely, Piper explains that by signing the PAT Plus Agreements, Willems agreed to arbitrate disputes relating to any account he held with Piper, and notes the following language found in both PAT Plus Agreements:
You agree to arbitrate any disputes between Piper Jaffray and you. You specifically agree and recognize that all controversies which may arise between Piper Jaffray, its agents, representatives or employees and you concerning any transaction, account of the construction, performance or breach of this or any other agreement between us, whether entered into prior, on, or subsequent to the date hereof shall be determined by arbitration to the full extent provided by law. [Emphasis added.]
Thus, it is the arbitration provisions, set forth in the PAT Plus Agreements and incorporating Willems’s 1986 IRA, which are at issue herein.
¶12 On January 24, 2003, Willems filed a complaint in the Second Judicial District Court against Piper, English, and O’Neill alleging mismanagement of his 1986 IRA. On March 24, 2003, Piper filed a motion to compel arbitration based upon the provisions of the PAT Plus Agreements requiring arbitration of disputes in any of Willems’s accounts. On July 9, August 12, and September 3, 2003, a panel of three district court judges sat en bane to hear evidence common to all 23 cases arising from the alleged misconduct of Piper’s broker, O’Neill. On April 7, 2004, the District Court denied Piper’s motion to compel arbitration and stay proceedings. Piper appeals therefrom.
STANDARD OF REVIEW
¶13 We review whether a district court’s conclusions of law are correct in determining whether or not an issue is subject to arbitration under an existing agreement. Iwen v. U.S. West Direct, 1999 MT 63, ¶ 17, 293 Mont. 512, ¶ 17, 977 P.2d 989, ¶ 17. When a district court is asked to compel arbitration of a dispute, the threshold inquiry is whether the parties agreed to arbitrate. Solle v. Western States Ins. Agency, 2000 MT 96, ¶ 22, 299 Mont. 237, ¶ 22, 999 P.2d 328, ¶ 22. Because arbitration is a matter of contract, the rules of contract apply, and a party cannot be required to submit to arbitration any dispute that the party has not agreed to submit. Solle, ¶¶ 22-23.
¶14 A fiduciary relationship is created whenever a broker has discretion to buy, sell, or otherwise control a client’s account. Chor v. Piper, Jaffray & Hopwood, Inc. (1993), 261 Mont. 143, 153, 862 P.2d 26, 32. In determining the scope or extent of the fiduciary obligation, our review becomes highly fact intensive. Moss v. Edward D. Jones & Co., 2002 MT 129, ¶ 35, 310 Mont. 123, ¶ 35, 54 P.3d 1, ¶ 35.
DISCUSSION
¶15 Did the District Court err in holding that the PAT Plus Agreements created a fiduciary duty between Piper and Willems that was breached by Piper?
¶16 In Chor, we held that § 30-10-301(1), MCA, creates an implied code of conduct for brokers, violations of which may constitute a breach of the duty that a broker owes to his customer. Chor, 261 Mont, at 152, 862 P.2d at 31-32. We further held that in the absence of discretionary authority by a broker to buy and sell in a customer’s account, no fiduciary relationship is created between the broker and the customer. Chor, 261 Mont, at 153,862 P.2d at 32. In Moss, we inversely restated that principle, holding that “a fiduciary relationship is created whenever a broker has discretion to buy and sell in the client’s account.” Moss, ¶ 35. Thus, we begin our analysis by first determining whether the PAT Plus Agreements granted such discretion to Piper’s brokers.
¶17 Piper argues that the PAT Plus Agreements did not grant it discretion to make trades on behalf of its clients and therefore did not create a fiduciary duty. Piper contends the District Court improperly interpreted the following underlined contract provisions:
Customer’s Orders Binding Until Notice of Death
Upon your death or failure to comply with any part of this Agreement or whenever Piper Jaffray deems it necessary for its protection. Piner Jaffrav is authorized (but is not required) to:
- Cancel outstanding orders;
- Purchase, sell, assign, receive and deliver all or any part of the securities held or carried for you: and
- Close out short sales by purchase upon any exchange board or market or any public or private sale at Piper Jaffray’s option.
(Underlining added.) In particular, Piper claims that the phrase, “whenever Piper Jaffray deems it necessary for its protection,” concerns Piper’s rights upon a client’s death or when a client is otherwise incapacitated. Piper makes note that upon the death or incapacity of a client, it must have a limited discretion over the client’s accounts in case the securities decline in value so that it may ensure it is in compliance with certain federal requirements, but that this limited discretion is not sufficient to trigger discretion for purposes of creating a fiduciary duty. Thus, Piper urges this Court to not derive a “broad” or “unfettered” grant of discretion from the middle of a provision that merely concerns Piper’s rights upon the death or incapacitation of a client.
¶ 18 Additionally, Piper notes that its Supervisory Procedures Manual provides that a client must execute additional documents if the client wishes to grant discretion to Piper. Piper claims that Willems did not execute the required documentation according to the procedures in the supervisory manual. Piper argues that the fact that Willems’s claims include allegations that Piper made “unauthorized transactions” in his 1986 IRA, a nondiscretionary account, is additional evidence that Willems understood that Piper lacked discretion to independently authorize transactions.
¶19 Finally, Piper argues that Kloss does not control the outcome here for two reasons. First, Piper asserts that the brokerage account agreement in Kloss is distinguishable from the PAT Plus Agreements. Second, it argues that the Kloss holding that a broker has a fiduciary duty to disclose and explain the arbitration clause within the account agreement is “in contrast to most statements of law.” Piper contends that if a broker had discretion in handling an account, the broker’s duties would not extend beyond financial management. Furthermore, Piper claims that brokers should not have the duty to read and explain arbitration clauses to clients since clients come to brokers for financial advice, not legal advice, and the broker may be engaging in the unauthorized practice of law.
¶20 Piper’s second Kloss argument is essentially an invitation to revisit and reverse our holding in Kloss. However, we see no error in the Kloss Court’s analysis as to the fiduciary duty in this context, and therefore, we decline Piper’s invitation to revisit that decision. We reject Piper’s argument that such discretion does not create a fiduciary obligation to explain the arbitration provisions, or that such an obligation requires the broker to engage in the unauthorized practice of law. The obligation is one which accompanies the fiduciary relationship created when a broker accepts a customer’s authorization to make transactions within the customer’s account in the broker’s own discretion.
¶21 Willems responds to Piper’s first Kloss argument by arguing that the language highlighted in the PAT Plus Agreements is similar to the language in the Kloss agreement, which provided:
You may sell any or all property held in any of my accounts and cancel any open orders for the purchase or sale of any property without notice, in the event of my death or whenever in your discretion you consider it necessary for your protection.
Kloss, ¶ 36. We determined that this language granted discretion to the broker to buy and sell securities on behalf of the broker’s client. Kloss, ¶¶ 36-37. Thus, Willems asserts the District Court properly concluded that the similar language in the PAT Plus Agreements likewise granted such discretion, thereby creating a fiduciary duty on behalf of the broker to explain the consequences of arbitration to clients.
¶22 In spite of Piper’s contention that it is required under federal law to have “limited discretion” to make transactions on behalf of its clients to ensure compliance with certain federal requirements, the PAT Plus Agreements contain no provisions or explanations as to this “limitation” or that the discretion granted in the agreement is effective only when securities decline in value. Moreover, the plain meaning of the following language- “upon your death or failure to comply with any part of this Agreement or whenever Piper Jaffray deems it necessary for its protection’-demonstrates that Piper retained broad authority to purchase, sell, assign, receive and deliver all or any part of the securities held by its clients. (Emphasis added.) Indeed, transactions could be made whenever Piper “deem[ed] it necessary” for its own best interest. Thus, the District Court did not err in concluding that the PAT Plus Agreements granted Piper’s brokers discretion to buy and sell securities, thereby creating a fiduciary duty.
¶23 Piper contends that the District Court erroneously concluded that a fiduciary duty existed before Willems signed the PAT Plus Agreements. Piper explains that written contracts are only effective at delivery, and therefore a fiduciary duty, triggering an obligation to explain the arbitration provision, could not exist before the PAT Plus Agreements were signed. Willems responds that Piper’s argument is misplaced in view of our holding in Kloss. Willems argues that when a fiduciary duty is created, even if it is created the very moment after the agreement is signed, a broker has a duty to advise its customers-pursuant to its duty of the finest loyalty-as to the nature of arbitration, or if the client may “opt out” of arbitration by crossing out the provision.
¶24 In Kloss, an investor opened an account which contained a predispute arbitration clause. We concluded that, because the brokerage firm had discretion to buy and sell securities in the investor’s account, a fiduciary relationship was created and the broker had an obligation to explain the effect of an arbitration clause. Kloss, ¶ 37. Although we did not state that the obligation arose prior to the actual signing of the agreement, that was, by necessity, the effect of our holding. Entering an agreement which bestows discretion upon the broker requires that the customer be advised of the agreement’s arbitration provision so that an informed decision to sign the agreement can be made.
¶25 It is undisputed that Piper did not advise Willems as to the nature of the arbitration clause or that he had the option of crossing out certain provisions. Further, the District Court found, and Piper does not challenge on appeal, that Willems did not understand that by signing the PAT Plus Agreements he was in any way affecting his 1986 IRA. Therefore, in accordance with our holding in Kloss, we conclude the District Court did not err in holding that the PAT Plus Agreements created a fiduciary duty between Piper and Willems and that Piper breached its fiduciary duty when it failed to explain the consequences of the arbitration provision prior to the formation of the contract.
¶26 Finally, Piper contends that, pursuant to the Kloss Court’s determination that the analysis as to whether a fiduciary duty exists is “highly fact intensive,” the facts here are distinguishable from those in Kloss. It notes that, in Kloss, the broker had a regular practice of explaining key contract terms to the customer, and that this led the Court to conclude that the broker had a fiduciary duty to explain the arbitration provision to the customer. Piper thus reasons that the District Court improperly relied on Kloss to create a “special legal standard” regarding fiduciary duties applicable only to arbitration provisions and not to other contract provisions, in violation of the Federal Arbitration Act (FAA) and United States Supreme Court precedent.
¶27 We conclude that the District Court created no new special legal standards but instead properly applied Montana case law by relying on Kloss. “The FAA provides that an agreement to arbitrate is valid except where grounds exist at law or in equity to revoke the contract .... Montana law also requires the enforcement of predispute arbitration clauses ‘except upon grounds that exist at law or in equity for the revocation of a contract.’ ” Kingston v. Ameritrade, Inc., 2000 MT 269, ¶ 13, 302 Mont. 90, ¶ 13, 12 P.3d 929, ¶ 13 (citing § 27-5-114(2), MCA). Though the brokerage firm in Kloss had a “regular practice of explaining key contract terms,” the enforceability of an arbitration provision is not dependent upon such an office custom or practice. The determination of the existence of a duty here is dependent upon all of the facts, and particularly, the extent of authority or discretion granted by the customer within the agreement.
¶28 We affirm the District Court’s conclusion that Piper owed a fiduciary duty to explain the arbitration provision to Willems which was breached, and further, that the pre-dispute arbitration provisions in the PAT Plus Agreements are unenforceable.
JUSTICES NELSON, COTTER, WARNER and LEAPHART concur.
At the time the lawsuits were filed, O’Neill was no longer employed at Piper,
|
[
24,
-7,
56,
-12,
61,
-35,
17,
-24,
17,
16,
56,
26,
3,
-7,
-26,
-25,
22,
25,
57,
-57,
-13,
-46,
42,
44,
28,
31,
-27,
-39,
34,
53,
27,
-78,
-7,
-4,
-91,
-15,
16,
14,
-14,
-22,
11,
-27,
-3,
6,
-15,
79,
-30,
4,
28,
11,
28,
2,
37,
34,
-22,
-60,
-37,
44,
48,
49,
-44,
-43,
38,
-32,
5,
-67,
-4,
63,
20,
50,
-71,
-25,
22,
-11,
-2,
-20,
-27,
6,
-20,
-15,
-24,
14,
-17,
-57,
-4,
53,
19,
24,
-23,
46,
23,
-16,
-35,
-50,
-13,
76,
91,
-9,
-56,
36,
-4,
-46,
-89,
34,
-11,
13,
8,
-7,
58,
15,
-16,
30,
-54,
-17,
-63,
-64,
-54,
-10,
-11,
-22,
-7,
33,
2,
41,
-4,
29,
2,
-44,
-6,
38,
-11,
22,
24,
13,
-43,
6,
45,
-44,
49,
63,
-25,
-53,
-33,
-28,
-24,
23,
-44,
-35,
17,
-62,
43,
-5,
-1,
60,
0,
-66,
-5,
48,
25,
-20,
20,
-36,
-30,
7,
-26,
7,
11,
5,
1,
-29,
28,
82,
-80,
-45,
-15,
-5,
-25,
0,
-43,
-25,
1,
50,
-37,
27,
-10,
18,
23,
41,
38,
-26,
-4,
-116,
6,
17,
-35,
-12,
-6,
37,
70,
34,
17,
-11,
46,
-2,
4,
13,
11,
2,
8,
-47,
-14,
23,
24,
5,
-82,
27,
4,
-56,
20,
-3,
10,
2,
-52,
28,
-30,
-46,
8,
-40,
-18,
-82,
-71,
-33,
19,
22,
7,
1,
62,
3,
20,
-5,
-37,
12,
-31,
-6,
21,
-5,
-16,
1,
31,
15,
-50,
32,
19,
40,
15,
17,
-46,
-35,
-5,
-13,
3,
-39,
-53,
12,
-9,
-1,
-24,
-28,
37,
-2,
0,
-23,
24,
45,
-3,
-60,
-4,
-33,
41,
-40,
-16,
60,
3,
69,
-3,
36,
33,
29,
-1,
-27,
52,
-4,
-6,
24,
14,
-38,
-5,
-38,
36,
12,
-59,
-60,
17,
0,
39,
10,
-5,
-27,
19,
-37,
66,
-2,
-9,
-52,
36,
-39,
7,
41,
64,
-18,
15,
-28,
34,
37,
21,
-5,
28,
-26,
-10,
30,
12,
64,
22,
-9,
-42,
-33,
30,
11,
-13,
64,
-42,
25,
-13,
-26,
11,
12,
23,
-43,
33,
-72,
-13,
-24,
-44,
-37,
11,
67,
73,
12,
-43,
3,
-25,
20,
-9,
-34,
-59,
51,
-12,
7,
-11,
2,
27,
22,
7,
-62,
-53,
11,
-18,
-3,
-26,
24,
22,
-19,
4,
27,
69,
8,
3,
-37,
0,
4,
-11,
18,
1,
44,
-26,
-17,
35,
-38,
-26,
16,
61,
-3,
-5,
-49,
-65,
-57,
31,
-17,
-63,
-3,
7,
24,
-54,
-28,
-54,
-10,
-26,
0,
44,
-17,
9,
-62,
-10,
-41,
44,
-68,
4,
49,
-68,
6,
-85,
-7,
-14,
-20,
15,
-44,
39,
-65,
-20,
41,
20,
25,
0,
-3,
51,
9,
8,
-33,
49,
74,
-19,
39,
26,
40,
-15,
4,
8,
-46,
0,
7,
22,
51,
-25,
16,
22,
-18,
67,
42,
29,
-3,
-17,
1,
-14,
89,
79,
55,
-5,
14,
-33,
-9,
10,
35,
-9,
12,
-9,
30,
48,
-21,
-19,
6,
6,
6,
22,
-32,
-50,
-8,
30,
9,
5,
-55,
0,
4,
-10,
41,
-14,
-1,
1,
-6,
0,
14,
-3,
-88,
37,
8,
-15,
-23,
-24,
18,
37,
37,
4,
-23,
-27,
-15,
-61,
0,
-25,
1,
5,
-21,
22,
-20,
-14,
-46,
-16,
6,
-31,
-44,
-9,
-62,
-16,
18,
-7,
-19,
-4,
16,
-34,
-7,
35,
45,
45,
-62,
80,
81,
54,
37,
31,
68,
10,
-40,
-2,
74,
-50,
20,
-38,
-39,
5,
19,
55,
-21,
-61,
-24,
52,
0,
-9,
-89,
30,
37,
11,
-26,
-62,
12,
27,
-44,
-61,
-14,
65,
-19,
50,
0,
90,
-108,
16,
3,
51,
39,
11,
-31,
8,
60,
-21,
-75,
-46,
-97,
-58,
-39,
-17,
11,
-11,
-22,
-15,
22,
1,
6,
9,
9,
47,
0,
31,
40,
4,
19,
4,
-80,
27,
26,
-63,
-28,
-13,
6,
-3,
-99,
-13,
-15,
-9,
-14,
-75,
31,
-47,
0,
37,
-24,
71,
-24,
-12,
15,
47,
12,
44,
-14,
41,
-4,
46,
-11,
-2,
49,
13,
15,
11,
-86,
-23,
-16,
-22,
26,
-94,
-18,
49,
45,
48,
4,
-56,
-9,
35,
-2,
27,
30,
-18,
-10,
-17,
19,
-42,
-1,
-12,
-37,
-30,
15,
-2,
0,
17,
16,
-11,
2,
-45,
-31,
-41,
-10,
-22,
-12,
-48,
-46,
-6,
-11,
-49,
-19,
-3,
20,
-52,
64,
18,
19,
57,
-39,
-1,
38,
3,
-15,
-16,
-26,
-59,
-4,
-14,
22,
54,
15,
-10,
22,
-11,
-9,
-22,
30,
-14,
-28,
-20,
36,
1,
0,
4,
-44,
0,
3,
5,
41,
14,
23,
0,
-1,
-36,
15,
35,
-6,
52,
15,
5,
34,
-57,
-2,
-45,
7,
0,
-7,
-26,
29,
-9,
16,
23,
0,
-6,
-34,
13,
7,
15,
25,
-56,
69,
-25,
20,
60,
-6,
27,
6,
0,
14,
-28,
-61,
22,
3,
4,
73,
20,
62,
-72,
-14,
1,
-57,
0,
35,
0,
29,
29,
-19,
-10,
1,
12,
-11,
62,
53,
29,
-15,
85,
19,
-39,
-42,
28,
23,
8,
21,
-30,
-40,
21,
-8,
3,
-16,
-4,
3,
12,
21,
-30,
73,
-33,
7,
-31,
-29,
-65,
-3,
-15,
22,
26,
12,
0,
-3,
37,
-2,
-6,
0,
48,
-13,
-4,
30,
-17,
-38,
-17,
2,
-40,
3,
-16,
-9,
7,
-20,
0,
14,
17,
8,
-64,
13,
19,
-11,
-55,
38,
-19,
87,
-4,
54,
25,
8,
-54,
-21,
10,
26,
-12,
-16,
-31,
6,
-57,
-34,
32,
-18,
99,
15,
11,
-2,
-39,
-5,
-10,
-10,
10,
5,
21,
-48,
4,
-6,
-26,
-3,
0,
-37,
-46,
60,
-18,
41,
-64,
54,
32,
12,
0,
-27,
-78,
98,
59,
-12,
53,
89,
27,
4,
-31,
9,
4,
21,
-25,
28,
19,
46,
53,
14,
32,
12,
-43,
-20,
4,
33,
-47,
43,
11,
-5,
-30,
14,
-49,
-30,
-2,
-52,
0,
41,
-20,
-7,
-31,
52,
-44,
-32,
-22,
-47,
27,
-25,
-59,
-10,
-14,
-54,
16,
-62,
38,
-21,
-3,
-29,
35,
45,
25,
-34,
-8,
-9,
-19,
-3,
29,
-89,
17,
11,
7,
30,
-8,
18,
-23,
45,
23,
17,
-5,
41,
-11,
17,
58,
-13,
87,
8,
28,
-40,
-39,
0,
-15,
-53,
-71,
15,
8,
17,
35,
22,
32,
8,
2,
-21,
-6,
33,
10,
-5,
2,
2,
30,
-33,
-19,
15
] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶ 1 The Workers’ Compensation Court determined that the Montana State Fund, rather than Indemnity Insurance Company of North America, is the workers’ compensation insurer liable for compensation payable for Carl Murray’s occupational disease, including disability and medical expenses for knee replacements. The State Fund appeals, and we affirm.
¶2 While the State Fund raises the overall issue on appeal of whether the Workers’ Compensation Court erred in holding the State Fund liable for Murray’s occupational disease, it breaks that question down into three subissues which we restate and address individually:
¶3 1. Did the Workers’ Compensation Court improperly rely on Dr. Nicholas Blavatsky’s testimony?
¶4 2. Is the Workers’ Compensation Court’s finding that Murray’s work at MSE Technology Applications, Inc., significantly contributed to his knee condition and his need for surgery supported by substantial credible evidence?
¶5 3. Did the Workers’ Compensation Court err in concluding the State Fund, rather than Indemnity, is the liable workers’ compensation insurer?
BACKGROUND
¶6 Murray suffered injuries in 1967 and 1974 which required removal of part or all of the cartilage in both of his knees. He remained physically active both in the jobs he performed and in vigorous recreational activities.
¶7 In 1982, Murray began working for MSE Technology Applications, Inc. (MSE) in Butte, Montana, as a security guard and mail carrier. He continued to work there for the next eighteen and one-half years. From approximately 1989 to 2000, he worked as a tool room attendant, issuing and repairing tools for other MSE employees. Much of Murray’s work involved standing on concrete or asphalt.
¶8 From 1993 to 2000, Murray suffered several episodes of knee pain, swelling and effusion in connection with his personal recreational activities. Until 2000, he recovered quickly and resumed his active lifestyle after each episode. Nevertheless, physician Michael Gallagher advised him by 1996 that bilateral knee replacements were inevitable because his knees continued to degenerate.
¶9 In December of 2000, orthopedic surgeon Nicholas Blavatsky, who specialized in knee replacements and later performed Murray’s knee replacement surgery, told Murray that the work at MSE had contributed to Murray’s condition and need for surgery. Within a month, Murray filed an occupational disease claim and scheduled bilateral knee replacements. He had been given notice that his job at MSE was being phased out and knew he would need time to recover from his impending knee surgeries. As a result, Murray resigned from his employment with MSE on January 12,2001.
¶ 10 The State Fund, MSE’s workers’ compensation insurer at the time Murray filed his claim, began paying Murray benefits under a reservation of rights. It petitioned the Workers’ Compensation Court for a determination that Indemnity, MSE’s prior workers’ compensation insurer, is liable for compensation for Murray’s bilateral knee condition.
¶11 Murray testified at the hearing on the State Fund’s petition. The Workers’ Compensation Court admitted depositions of Murray, Gallagher, Blavatsky, and Dr. Gary M. Rapaport into evidence. Rapaport, an occupational medicine specialist, had examined Murray in August of 2001 at the request of the Montana Department of Labor and Industry. In addition, the State Fund offered into evidence, and the court admitted over Murray’s objection, a letter in which Rapaport responded to specific questions the State Fund submitted to him after his deposition.
¶12 In detailed findings of fact and conclusions of law, the Workers’ Compensation Court reviewed the evidence and determined it established that Murray’s work both significantly aggravated his preexisting bilateral knee condition and led to or accelerated his need for knee replacement surgery. The court determined Murray is entitled to the indemnity and medical benefits available under the Montana Occupational Disease Act and concluded that, as the insurer at risk during Murray’s last occupational exposure, the State Fund is liable for paying the benefits. The Workers’ Compensation Court subsequently denied the State Fund’s request for reconsideration. The State Fund appeals.
STANDARDS OF REVIEW
¶13 We review the Workers’ Compensation Court’s findings of fact to determine whether they are supported by substantial credible evidence. We apply the same standard of review when the record contains both deposition medical evidence and other trial evidence relevant to the medical issue. See Wilson v. Liberty Mut. Fire Ins. (1995), 273 Mont. 313, 317, 903 P.2d 785, 787-88 (citation omitted). We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. Hiett v. Missoula County Public Schools, 2003 MT 213, ¶ 15, 317 Mont. 95, ¶ 15, 75 P.3d 341, ¶ 15 (citation omitted).
DISCUSSION
¶14 1. Did the Workers’ Compensation Court improperly rely on Blavatsky’s testimony?
¶15 The State Fund argues that the Workers’ Compensation Court improperly relied on Blavatsky’s testimony because Blavatsky’s medical records do not reflect a relationship between Murray’s knee problems and his work at MSE. This argument has no merit.
¶16 Blavatsky was not specifically asked during his deposition whether he knew Murray stood or walked on concrete at work. In response to questioning, however, Blavatsky testified that working on concrete floors over repeated intervals can tend to result in osteoarthritis in the knees. Blavatsky stated:
It’s been shown that that kind of activity over repeated intervals-it may be years on end-can exacerbate that condition. And it’s been shown in people that are diesel mechanics and waitresses and other occupations that have this kind of problem, that they tend to develop osteoarthritic changes more so than counterparts that are not on hard surfaces like that.
As the Workers’ Compensation Court noted in denying the State Fund’s motion for reconsideration, Blavatsky’s testimony “does not show that he was unaware of [Murray’s] standing on concrete at work for long periods of time.” In fact, the question about the effect of working on concrete, and his answer to that question, suggest the opposite.
¶17 Under this argument, the State Fund also criticizes the Workers’ Compensation Court for “disregarding” the opinion of Gallagher, who “could not express an opinion on the impact of work activities at MSE on Mr. Murray’s knees.” While Gallagher declined to express an opinion on the impact of work activities on Murray’s knees, he also testified he would defer to Blavatsky’s judgment on that question because he had not been involved in Murray’s treatment since 2000. ¶18 Finally, the State Fund advances a letter written by Rapaport which differs from the Workers’ Compensation Court finding that Murray’s work at MSE significantly contributed to his knee condition. The State Fund analogizes this case to Burglund v. Liberty Mut. Fire Ins. Co. (1997), 286 Mont. 134, 950 P.2d 1371. There, the Workers’ Compensation Court found the worker’s disability was caused by a prior work injury, not by an occupational disease, in spite of the fact that his work may have hastened the degenerative process. We affirmed, determining the court’s finding that the worker’s condition was caused by a natural progression of the prior injury was supported by substantial evidence. Burglund, 286 Mont, at 137, 950 P.2d at 1372-73.
¶19 The question underlying whether a finding is supported by substantial evidence is not whether substantial evidence would support a different finding. The question is whether substantial evidence supports the finding the Workers’ Compensation Court actually made. Liberty Northwest Ins. Corp. v. Champion Intern. Corp. (1997), 285 Mont. 76, 79, 945 P.2d 433, 435 (citation omitted). Thus, the fact that we affirmed a Workers’ Compensation Court finding in Burglund that the claimant’s disability was not caused by occupational disease has no relevance here.
¶20 We conclude the Workers’ Compensation Court properly relied on Blavatsky’s testimony.
¶21 2. Is the Workers’ Compensation Court’s finding that Murray’s work at MSE significantly contributed to his knee condition and his need for surgery supported by substantial credible evidence?
¶22 We observe at the outset that the State Fund asserts the Workers’ Compensation Court determined that Murray’s “work activities at MSE substantially aggravated his underlying osteoarthritis.” The State Fund then advances Polk v. Planet Ins. Co. (1997), 287 Mont. 79, 951 P.2d 1015, for the proposition that occupational factors must substantially aggravate an underlying condition to render the condition compensable. It asserts the overwhelming evidence of record reflects the likelihood Murray’s osteoarthritis began with the 1967 and 1974 injuries and worsened during pre-MSE employment and his recreational activities. According to the State Fund, the effect of MSE employment on Murray’s knees was “infinitesimal” rather than substantial. The State Fund entirely misses the mark.
¶23 First, the Workers’ Compensation Court found that “[Murray’s] work at MSE significantly contributed to [his] knee condition and his need for surgery.” The court did not use the “substantially aggravated” language. Second, we rejected the “substantially aggravated” argument in Polk, 287 Mont, at 85, 951 P.2d at 1019, stating the test for compensability under the Occupational Disease Act as whether occupational factors significantly aggravated a preexisting condition. Thus, the State Fund’s reliance on the “substantially aggravated” test, and its application of that test to the evidence here, is incorrect.
¶24 The State Fund relies heavily on Rapaport’s revised opinion in his post-deposition letter to the State Fund’s counsel in September of2003. Ultimately, the Workers’ Compensation Court gave little weight to Rapaport’s post-deposition letter on grounds that it was not sworn, was not subject to cross-examination and “was [written] in reply to carefully framed written questions of counsel.” The State Fund contends the Workers’ Compensation Court erred in giving the letter little weight. We will not, however, substitute our judgment for that of the Workers’ Compensation Court where the issue relates to the weight given to certain evidence or the credibility of witnesses. Best v. State Compensation Ins. Fund (1996), 276 Mont. 302, 306, 916 P.2d 108, 110.
¶25 Evidence from several sources supports the Workers’ Compensation Court’s finding that Murray’s work at MSE significantly contributed to his knee condition. Murray, found by the Workers’ Compensation Court to be “a wholly credible witness,” testified he stood or walked on cold concrete floors at MSE all but two or three hours a day of his 40 or more hour work week. In Rapaport’s report, appended to his deposition, he acknowledged Murray’s 1967 and 1974 injuries but stated subsequent activities, including Murray’s recreational activities and work activities, had contributed to the advancing degeneration of both knees. Although Rapaport noted Murray’s medical records referenced no specific occupational injury, he stated it appeared Murray was required to walk, bend, lift and climb on concrete sin-faces, which may have contributed in part to his degenerative joint disease. Rapaport apportioned 30 to 40 percent of Murray’s condition to work activities. Blavatsky agreed with Rapaport that at least 30 per cent of Murray’s knee condition was attributable to walking and standing on hard surfaces. While conceding that Murray’s old knee injuries were “huge initiating factors in his osteoarthritis,” Blavatsky testified that “in all fairness, work-related activities have some measure.”
¶26 We conclude the Workers’ Compensation Court’s finding that Murray’s MSE employment significantly contributed to his knee condition is supported by substantial credible evidence.
¶27 3. Did the Workers’ Compensation Court err in concluding the State Fund, rather than Indemnity, is the liable workers’ compensation insurer?
¶28 Finally, the State Fund asserts that, even if the Workers’ Compensation Court’s finding that Murray’s employment significantly contributed to his knee condition is supported by substantial credible evidence, his occupational disease occurred while Indemnity was MSE’s workers’ compensation insurer. The State Fund points to Murray’s deposition testimony that, as of October 1, 2000, when the State Fund became MSE’s workers’ compensation insurer, he was sitting 40 to 50 percent of the time he was at work. The State Fund also points to Murray’s statements in his exit interview with MSE that he was leaving the company because his job had been reduced to half time and his workload was “too light.”
¶29 Section § 39-72-303(2), MCA, provides that the insurer providing coverage at the earlier of (a) the date an occupational disease was first diagnosed, or (b) the date the employee “knew or should have known that the condition was the result of an occupational disease” is liable for the worker’s occupational disease. Murray testified he was unaware that standing on concrete at work was a cause of his knee condition until Blavatsky so advised him in December of 2000. At that time, the State Fund was MSE’s workers’ compensation insurer. The State Fund points to nothing which indicates Murray should have been aware of the connection between his knee condition and his employment earlier. We conclude the Workers’ Compensation Court correctly determined the State Fund is the liable workers’ compensation insurer.
CONCLUSION
¶30 We hold the Workers’ Compensation Court did not err in holding the State Fund liable for compensation for Murray’s occupational disease. Affirmed.
JUSTICES NELSON, COTTER, WARNER and RICE concur.
|
[
-3,
-23,
-38,
19,
68,
-13,
23,
-23,
4,
0,
4,
47,
70,
-23,
-2,
-38,
-9,
-18,
-10,
32,
-12,
-30,
-23,
45,
-35,
-6,
-55,
20,
-30,
-3,
5,
-43,
28,
-72,
-72,
22,
15,
21,
-47,
-18,
-12,
29,
-17,
-23,
-32,
20,
9,
20,
-39,
9,
42,
3,
33,
-24,
61,
19,
22,
24,
-70,
-12,
-6,
-8,
76,
-31,
81,
-21,
57,
13,
-28,
41,
-28,
32,
23,
-25,
-48,
3,
17,
19,
-30,
-44,
15,
11,
-27,
-39,
-34,
76,
-54,
15,
-12,
-40,
38,
-48,
11,
-3,
-15,
42,
-43,
-8,
-20,
35,
-12,
37,
-10,
-1,
-10,
-43,
-4,
-26,
14,
36,
-33,
48,
-11,
65,
32,
39,
28,
-2,
-24,
64,
-49,
7,
-38,
-57,
4,
2,
38,
-1,
11,
37,
16,
-14,
-16,
-16,
-57,
12,
-37,
-66,
-17,
47,
8,
18,
15,
-20,
17,
46,
-32,
-12,
23,
-50,
54,
-54,
25,
-54,
-24,
-45,
-64,
65,
77,
21,
31,
-13,
61,
79,
16,
42,
36,
26,
73,
-19,
25,
-8,
30,
-86,
25,
20,
35,
-28,
-71,
27,
-42,
-46,
42,
12,
-24,
-28,
22,
46,
101,
8,
27,
0,
-28,
0,
-16,
-56,
-4,
-7,
18,
-43,
23,
-5,
30,
-8,
1,
10,
26,
0,
53,
17,
55,
4,
29,
-50,
42,
0,
-8,
-31,
-19,
-61,
1,
9,
13,
-19,
-39,
-38,
-6,
5,
27,
-40,
-34,
-2,
72,
0,
38,
-23,
-11,
-18,
11,
-8,
3,
-5,
-26,
6,
-14,
-22,
-37,
-20,
-4,
-60,
-10,
-24,
3,
32,
-53,
-7,
7,
22,
-45,
-31,
-44,
16,
-6,
36,
74,
3,
-18,
22,
15,
39,
1,
-7,
50,
-73,
-48,
-57,
15,
-1,
50,
34,
0,
16,
35,
-9,
-7,
25,
-25,
-63,
-96,
-29,
63,
-101,
59,
22,
44,
-26,
17,
-1,
-45,
-3,
-24,
80,
-5,
59,
32,
66,
-55,
-24,
37,
-21,
-4,
-44,
-7,
-21,
27,
-14,
-33,
-34,
17,
-10,
-11,
47,
-13,
-54,
-17,
-40,
-19,
-64,
-11,
-12,
-24,
13,
17,
68,
-23,
-45,
35,
62,
5,
-49,
-39,
41,
37,
-36,
-52,
20,
6,
10,
21,
-23,
-20,
26,
31,
17,
-15,
19,
30,
-39,
-15,
20,
26,
-12,
9,
3,
-95,
6,
-49,
2,
4,
28,
-32,
-33,
39,
-35,
-13,
31,
-13,
50,
1,
-7,
36,
46,
49,
-59,
-22,
33,
-31,
19,
-31,
-4,
-34,
-35,
28,
89,
-5,
17,
-18,
-34,
-27,
12,
54,
-12,
-4,
59,
20,
-45,
19,
-24,
-32,
-13,
-67,
13,
-6,
-66,
14,
1,
27,
-42,
-44,
-48,
28,
14,
-20,
-60,
49,
-22,
-29,
19,
-32,
20,
-3,
-7,
-9,
-31,
-35,
-76,
-30,
-20,
-21,
6,
31,
5,
-8,
12,
16,
56,
14,
33,
59,
-29,
34,
25,
19,
5,
10,
40,
-33,
-19,
1,
-6,
-34,
-20,
1,
-36,
83,
13,
10,
1,
19,
-35,
57,
12,
6,
16,
46,
13,
-39,
-11,
-8,
-39,
1,
32,
-32,
36,
-20,
-28,
-31,
4,
-36,
20,
20,
-5,
-14,
-34,
-14,
3,
-31,
3,
-27,
-37,
-39,
-34,
2,
-1,
12,
-78,
37,
-50,
7,
-51,
-13,
-62,
-34,
37,
31,
-22,
12,
-16,
-34,
20,
-29,
-39,
-5,
21,
14,
-68,
-55,
10,
31,
-75,
7,
-24,
20,
68,
5,
5,
37,
16,
2,
-32,
-63,
14,
-28,
20,
1,
-96,
16,
37,
73,
19,
70,
-27,
14,
43,
71,
12,
67,
43,
27,
2,
-21,
66,
-10,
39,
20,
36,
-4,
13,
44,
-40,
-54,
-14,
45,
-38,
-15,
-51,
-39,
42,
-58,
12,
15,
-27,
12,
-2,
-67,
-61,
35,
-61,
-32,
-42,
62,
7,
-4,
52,
-10,
22,
-6,
19,
-42,
-57,
17,
-32,
-21,
24,
11,
23,
-21,
-22,
51,
-28,
-76,
3,
-4,
-48,
-5,
-65,
-47,
21,
82,
8,
0,
4,
34,
7,
-9,
38,
-57,
-21,
-30,
-8,
29,
-9,
-34,
-19,
17,
16,
23,
42,
-26,
3,
1,
18,
79,
21,
-43,
-14,
6,
10,
-18,
-32,
35,
51,
-27,
-9,
-53,
-2,
1,
30,
-45,
-12,
-30,
36,
1,
-56,
-4,
35,
34,
-16,
-55,
-28,
4,
49,
0,
-8,
67,
0,
-10,
-79,
34,
9,
-5,
-37,
22,
48,
-5,
8,
-9,
10,
4,
-22,
-33,
33,
-10,
12,
43,
46,
37,
-31,
2,
-1,
-27,
58,
-34,
-16,
40,
55,
-18,
-11,
26,
10,
7,
-30,
-10,
14,
11,
65,
-32,
-25,
-37,
-57,
-38,
-11,
-22,
32,
57,
-36,
-7,
43,
-10,
-9,
-35,
1,
20,
0,
10,
40,
13,
8,
-31,
20,
47,
50,
23,
41,
-54,
-25,
-47,
-34,
2,
10,
1,
-5,
-17,
-41,
17,
-54,
-11,
55,
16,
24,
27,
-51,
8,
27,
31,
-19,
17,
15,
-28,
-34,
46,
91,
-51,
67,
8,
-1,
43,
-37,
-9,
16,
22,
4,
44,
1,
-61,
-35,
-36,
67,
0,
-12,
-54,
100,
51,
-68,
8,
-43,
-46,
0,
-18,
64,
30,
30,
16,
-21,
46,
0,
38,
-1,
79,
44,
-46,
2,
82,
32,
15,
-48,
-28,
20,
-41,
24,
12,
30,
-25,
-44,
30,
-33,
-39,
27,
14,
-35,
-32,
47,
-55,
20,
44,
46,
25,
45,
-3,
-46,
48,
13,
6,
20,
24,
-36,
-54,
16,
-22,
-9,
-26,
-10,
-27,
39,
21,
-2,
-4,
-78,
37,
33,
-29,
-19,
-49,
61,
1,
-6,
-19,
3,
0,
18,
-23,
38,
55,
-49,
-26,
22,
-5,
-16,
7,
-27,
26,
-7,
-43,
-30,
-2,
-86,
45,
19,
-30,
16,
-32,
-45,
-10,
-17,
-18,
-33,
-54,
58,
39,
-1,
23,
27,
21,
58,
43,
24,
-7,
10,
-12,
34,
-41,
-33,
34,
-14,
-41,
25,
-5,
44,
-7,
14,
-39,
43,
-10,
4,
-6,
7,
5,
-37,
-36,
57,
3,
36,
7,
44,
7,
27,
-4,
-39,
-91,
-13,
70,
1,
15,
28,
-30,
-45,
6,
-52,
-13,
-27,
71,
-3,
-26,
47,
-25,
-6,
6,
-26,
39,
3,
27,
20,
-39,
25,
11,
-4,
20,
-56,
-31,
-39,
-6,
18,
-2,
-15,
23,
46,
13,
-51,
52,
-11,
60,
-16,
-37,
21,
3,
-7,
-30,
-46,
-30,
-16,
-13,
45,
-22,
17,
24,
-56,
22,
-44,
72,
-22,
36,
-5,
-17,
-14,
-7,
46,
7,
-39,
76,
10,
78,
51,
-42,
-78,
18,
-12,
7,
-42,
-6,
-12,
7,
9,
31,
-17
] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Ruben Fellenberg (Fellenberg) appeals the Workers’ Compensation Court’s denial of his claim for benefits under the Occupational Disease Act of 1985. We affirm.
ISSUES
¶2 Fellenberg presents the following issues on appeal:
¶3 1. Did the Workers’ Compensation Court (WCC) err in concluding that he is not entitled to permanent total disability (PTD) benefits?
¶4 2. Did the WCC err in concluding that he is not entitled to 500 weeks of permanent partial disability (PPD) benefits under Hunter v. Gibson Products of Billings (1986), 224 Mont. 481, 730 P.2d 1139?
¶5 3. Did the WCC err in concluding that he is not entitled to an impairment award?
¶6 4. Are various statutes in the Montana Occupational Disease Act (MODA) unconstitutional?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 Fellenberg worked for W.R. Grace/Zonolite (Grace) in Libby, Montana, from 1958 until July 1986. In March 1985, Fellenberg was diagnosed with asbestosis. He immediately filed a report of occupational disease alleging that his asbestosis arose out of his employment. Transportation Insurance Company (Transportation), Grace’s insurer at that time, denied the claim.
¶8 In July 1986, at the age of 62, Fellenberg retired. He elected early social security retirement benefits, which he has been receiving since 1986. He also has been receiving a pension from Grace since 1986.
¶9 Since his retirement, Fellenberg’s lung disease has become progressively worse, and in October 1998, his personal physician deemed him permanently totally disabled. On December 5, 2002, Fellenberg filed a Petition for Trial seeking compensation and medical benefits under the 1985 Montana Occupational Disease Act. In February 2003, Transportation accepted liability for Fellenberg’s illness but challenged the claim on several grounds.
¶10 Following a trial, the WCC issued Findings of Fact, Conclusions of Law and Judgment. The WCC found that, while still capable of working, Fellenberg voluntarily retired from Grace in 1986, for reasons unrelated to his occupational asbestos disease. The court further found that Fellenberg has not worked since his retirement and that at the time of his retirement, he had no intention of returning to the work force. Fellenberg does not dispute these findings.
¶11 The WCC concluded that, as a result of his voluntary withdrawal from the labor force in 1986, Fellenberg was not entitled to PTD benefits because he did not meet the statutory requisites for such benefits. Specifically, the court concluded Fellenberg had no “loss of actual earnings” or loss of “earning capability” as a result of his occupational disease; rather, his “loss of actual earnings” was the result of his voluntary retirement. Furthermore, while finding that Fellenberg suffered a sixty percent loss of earning capability, the WCC concluded that such a reduction in earning capability was not compensable because he had voluntarily retired at 62, and at age 79, did not work and did not intend to work. The WCC also concluded that under the 1983 version of § 39-71-710, MCA, Fellenberg would not be entitled to PTD benefits at any fixture time because he receives social secxxrity retirement benefits.
¶12 Having determined that Fellenberg was not entitled to PTD benefits, the WCC concluded that Fellenberg likewise did not qualify for PPD benefits, pursuant to Hunter. The Court also concluded that Fellenberg was not entitled to an impairment award. Lastly, the WCC considered Fellenberg’s constitutional challenges to two of the four statutes in question and held that the statutes were constitutional. Fellenberg appeals these WCC determinations.
STANDARD OF REVIEW
¶13 Our review of a WCC decision is twofold. We review the court’s findings of fact to determine whether they are supported by substantial credible evidence and its conclusions of law to determine whether they are correct. Van Vleet v. Ass’n of Counties Work. Comp., 2004 MT 367, ¶ 9, 324 Mont. 517, ¶ 9, 103 P.3d 544, ¶ 9 (citation omitted).
DISCUSSION
¶14 Fellenburg maintains that the WCC erred in taking into account his voluntary retirement when considering his eligibility for PTD benefits. Transportation counters that the cause of one’s loss of earnings and earning capability is critical to one’s eligibility for PTD benefits, and that, since Fellenburg retired voluntarily and for reasons wholly unrelated to his asbestosis condition, he fails to qualify for PTD benefits under the PTD statute.
¶15 “Permanent total disability,” as defined by the 1983 Workers’ Compensation Act, means:
a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence. (Emphasis added.)
Section 37-71-116(13), MCA (1983).
¶16 As argued by Transportation, in addition to meeting the specific medical and labor market components of § 37-71-116(13), MCA, to qualify for benefits, a claimant must also establish a causal connection between his or her injury and the right to benefits. “Causation is an essential element to an entitlement to benefits and the claimant has the burden of proving a causal connection by a preponderance of the evidence.” Grenz v. Fire and Cas. of Connecticut (1991), 250 Mont. 373, 820 P.2d 742 (citing Brown v. Ament (1988), 231 Mont. 158, 163, 752 P.2d 171, 174.) See also Hash v. Montana Silversmith (1993), 256 Mont. 252, 257, 846 P.2d 981, 983.
¶17 To be entitled to benefits under § 37-71-116(13), MCA, Fellenberg must prove that he has a “condition resulting from an injur/’ as defined in the applicable statutes, and that it is the injurious condition that “results in the loss of actual earnings” or a loss of “earnings capability.” While acknowledging that Fellenberg had an injurious condition that was one hundred percent attributable to his former employment with Grace, the WCC concluded that Fellenberg failed to establish that his 1998 disability condition caused a “loss of actual earnings.” It is important to note that this conclusion stems from certain undisputed facts. Fellenburg admitted in testimony that his 1986 retirement was not related to his lung disease. Moreover, he said that he did not work nor did he intend to return to work after 1986. In other words, Fellenberg ceased receiving “actual earnings” at the time he retired, and that “loss of actual earnings” had nothing to do with his medical condition. The court also concluded that, while Fellenberg had a sixty percent diminution in earnings capability, his voluntary retirement and lack of intent to return to work precluded recovery based on diminished wage capability.
¶18 Fellenberg cites numerous cases to support his argument that he need not be seeking employment to qualify for PTD benefits. We conclude the cases relied upon by Fellenberg are factually as well as legally distinguishable because they do not address the statutory causation nexus that is dispositive of this case.
¶19 In the case before us, the WCC’s ruling was based on the lack of causal connection between Fellenberg’s claimed loss of wages and earning capability, and his illness. In Brurud v. Judge Moving & Storage Co., Inc. (1977), 172 Mont. 249, 563 P.2d 558, upon which Fellenberg relies, a fifty-eight-year old heavy laborer suffered a serious and disabling work-related back injury. As a result of Brurud’s medical reports, his age, education and experience, the WCC concluded that he was PTD. The employer and insurer challenged the WCC’s determination, arguing, among other things, that before the WCC could conclude that Brurud was entitled to PTD benefits, “a finding must be made that [Brurud] made a reasonable effort to find regular employment but that no reasonable prospect existed.” Brurud, 172 Mont, at 253, 563 P.2d at 560. This Court, in affirming the WCC, stated that the statute does not require that a claimant make a reasonable effort to secure employment because “[i]n some cases, this Court can foresee the futility of such an effort.” Brurud, 172 Mont, at 253, 563 P.2d at 560. Brurud is distinguishable from the case at bar. Brurud was forced to stop working as a result o/his job-related injury, while Fellenberg quit working for reasons unrelated to his injury. If anything, Brurud supports the WCC’s determination that there must be a tangible causal link between a claimant’s injury or illness and his or her claim for lost wages and earning capability.
¶20 For the same reasons as those noted above, Walker v. H.F. Johnson, Inc. (1978), 180 Mont. 405, 591 P.2d 181, relied upon by Fellenberg, is also inapposite. There, the claimant could not perform his past summer work as a direct result of a disabling work-related injury. His lost earning capability was not the result of his voluntary and permanent withdrawal from the work force, but rather stemmed directly from his condition. In both Brurud and Walker, it is undisputed that the claimants would have returned to work but for their injuries. This crucial element is lacking here.
¶21 The WCC made a factual finding that Fellenburg was not entitled to benefits for loss of earning capability. Even if we accept as true Fellenburg’s contention that he is one hundred percent disabled because he has no earning capability in his labor market, the fact remains that his decision not to work again has been both longstanding and resolute-he decided years ago, for reasons unrelated to his disability, never to work again. Nor has he testified that he would return to work now, but for his disability. Therefore, the causal connection between the loss of earning capability and his disabling condition resulting from injury that the PTD statute requires, is missing.
¶22 In Hash v. Montana Silversmith (1993), 256 Mont. 252, 846 P.2d 981, we held that while it was possible to calculate an award for loss of earning capability, the calculation was irrelevant because Hash had failed to demonstrate that her injury caused her loss of earning capability. Without such causal connection, we concluded, Hash simply did not qualify for PTD benefits under the statute. Hash, 256 Mont, at 258, 846 P.2d at 984. The same result is compelled here, for the same reason. We therefore conclude the WCC did not err in denying Fellenburg PTD benefits.
¶23 Because we find the lack of causation issue dispositive, we need not reach the remaining theories addressed by the parties under which Fellenburg might otherwise be entitled to or denied PTD benefits.
¶24 We likewise affirm the WCC’s determination with respect to Fellenburg’s claim for PPD benefits. As Fellenburg himself argues on appeal, he would be entitled to 500 weeks of PPD benefits under Hunter v. Gibson Products of Billings (1986), 224 Mont. 481, 730 P.2d 1139, if he is PTD. As we have determined that he is not PTD, this entitlement does not follow.
¶25 Fellenberg also challenges the WCC’s conclusion that he is not entitled to an impairment award. Fellenberg argues that as a result of his PTD, he is entitled to a disability award in accordance with Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 637 P.2d 10. In Holton, the Court allowed an impairment rating to be immediately payable in a PPD case. Subsequently in Rausch v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3d 25, we held that under 1991 and 1997 laws, an impairment award is “for the loss of physical function of their body occasioned by a work-related injury,” is not tied to PPD benefits, and is payable to PTD as well as PPD claimants. Rausch, ¶ 30. Fellenberg advocates the application of Rausch to his case. The WCC, however, concluded that Rausch did not apply; rather Grimshaw v. L. Peter Larson Co. (1984), 213 Mont. 291, 296, 691 P.2d 805, 807, which interpreted pre-1987 applicable law, controlled. Grimshaw stated “[i]f the claimant is not presently entitled to receive partial disability benefits, Holton does not apply.” The WCC concluded that Grimshaw expressly prohibited a non-PPD qualified claimant under pre-1987 law from receiving a Holton impairment award. The court further opined that while Rausch had adopted another rule as to post-1991 claims, Rausch had not overturned Grimshaw and it was not the role of the WCC to overrule Supreme Court decisions. We agree with the WCC that Grimshaw controlled in the case at bar and under Grimshaw, Fellenberg is not entitled to a Holton impairment award.
¶26 Finally, Fellenberg raises constitutional challenges with respect to four ODA statutes. Basically, he raises equal protection objections to the extent that the statutes in question deny certain benefits to occupationally diseased workers which are otherwise available to injured workers. Notably, though, Fellenberg does not challenge the constitutionality of § 37-71-116(13), MCA, taken from the Worker’s Compensation Act, and under which we make our decision. Since our decision does not require us to interpret or apply any ODA statute the constitutionality of which is in question, we need not reach Fellenberg’s constitutional challenges to those statutes.
CONCLUSION
¶27 For the foregoing reasons, we affirm the Workers’ Compensation Court.
CHIEF JUSTICE GRAY, JUSTICES WARNER, LEAPHART and RICE concur.
The WCC decided the matter under the 1983 MODA. Use of the 1983 Act was acceptable to the parties as there was no substantive difference between the 1983 and 1985 Acts.
The MODA does not define “permanent total disability,” therefore, the WCC correctly relied on the definition contained in the Workers’ Compensation Act.
The statutory definition of PPD as relied upon in Holton and Grimshaw v. L. Peter Larson Co. (1984), 213 Mont. 291, 691 P.2d 805, was revised in 1991. As a result, the Holton and Grimshaw decisions have been superceded by statute as stated in Williams v. Plum Creek Timber Co. (1995), 270 Mont. 209, 891 P.2d 502. This subsequent statutory revision, however, does not affect our analysis or the ruling in the case before us.
|
[
-1,
-48,
-75,
-6,
67,
18,
10,
-28,
0,
-25,
-49,
53,
111,
-94,
42,
-15,
15,
5,
-26,
73,
-21,
-4,
18,
36,
-10,
-51,
-7,
48,
-17,
-4,
14,
-5,
1,
-35,
-69,
45,
-14,
-14,
-19,
-32,
-1,
-27,
-14,
-4,
25,
20,
-28,
16,
31,
5,
-15,
-14,
-21,
0,
33,
18,
37,
28,
-48,
10,
-3,
-17,
43,
-42,
70,
13,
9,
18,
-44,
7,
-21,
-41,
14,
3,
-11,
-91,
36,
37,
-44,
16,
-20,
-47,
-32,
-36,
-32,
39,
21,
33,
14,
3,
-9,
-19,
44,
-28,
-66,
15,
-11,
18,
-23,
19,
-46,
34,
12,
14,
6,
-1,
26,
15,
-30,
41,
1,
7,
-57,
35,
61,
64,
24,
18,
31,
55,
-7,
-40,
-45,
28,
14,
-25,
9,
11,
-29,
0,
49,
9,
12,
-19,
-35,
8,
-16,
-12,
-14,
19,
-28,
79,
-36,
-26,
-38,
44,
-28,
-24,
-5,
-64,
1,
25,
11,
-48,
-33,
-53,
-4,
23,
62,
0,
23,
-29,
22,
41,
-8,
17,
55,
-4,
10,
-12,
31,
-27,
-8,
-33,
23,
-5,
57,
-29,
51,
48,
-32,
-67,
-30,
15,
-20,
-15,
23,
11,
31,
-11,
47,
-14,
-25,
-6,
-42,
-50,
43,
31,
-17,
-22,
-17,
13,
-44,
15,
-9,
70,
-36,
-33,
43,
-12,
72,
-11,
35,
-57,
57,
11,
28,
-56,
-42,
-35,
-21,
51,
29,
-35,
-23,
5,
-26,
19,
22,
-13,
-42,
-68,
52,
51,
13,
-23,
-8,
-35,
65,
-12,
-7,
8,
5,
21,
-3,
3,
-54,
-16,
9,
7,
-34,
-17,
42,
-9,
30,
-42,
17,
-24,
-13,
-70,
19,
24,
31,
-20,
94,
2,
57,
40,
63,
-69,
3,
-6,
21,
-25,
-78,
-51,
-7,
9,
99,
59,
-4,
-15,
-18,
-34,
-33,
-17,
27,
-33,
-68,
-25,
16,
-22,
32,
24,
-22,
-32,
11,
-2,
-106,
64,
-14,
25,
-12,
40,
17,
49,
-63,
11,
38,
27,
20,
-23,
89,
-17,
50,
40,
-22,
16,
13,
-14,
-18,
4,
0,
3,
-8,
-40,
-100,
-29,
0,
-14,
-55,
-21,
24,
59,
48,
-36,
-2,
36,
20,
-41,
3,
-15,
13,
-32,
-44,
36,
-4,
-52,
48,
-4,
0,
0,
64,
-43,
-15,
24,
42,
-35,
-59,
17,
42,
8,
-10,
6,
-64,
37,
-16,
-38,
14,
-11,
-1,
10,
39,
-62,
-48,
-1,
-17,
68,
-30,
-9,
46,
29,
13,
-45,
-37,
-1,
-59,
27,
-15,
-19,
-34,
-10,
-14,
98,
8,
27,
1,
-46,
4,
70,
-17,
48,
9,
18,
84,
-32,
10,
-16,
-54,
6,
-45,
-15,
-21,
-47,
16,
-22,
70,
-19,
-9,
5,
28,
-49,
-2,
-44,
-8,
-43,
-21,
29,
-15,
54,
44,
-52,
-27,
-7,
-27,
-14,
15,
-4,
-25,
-7,
0,
7,
-19,
-57,
31,
-18,
-13,
25,
24,
-42,
5,
24,
13,
5,
3,
5,
0,
-4,
-4,
-6,
-74,
-20,
37,
-3,
125,
16,
24,
16,
52,
24,
42,
19,
-7,
6,
-4,
46,
-64,
9,
20,
-22,
-26,
53,
4,
11,
16,
14,
-19,
-19,
-41,
0,
5,
8,
12,
-48,
-44,
-26,
-6,
62,
-15,
-44,
-40,
-46,
22,
5,
-36,
-60,
13,
-19,
22,
-38,
6,
-46,
15,
56,
-16,
-21,
-22,
-48,
-21,
31,
13,
5,
-19,
44,
35,
-44,
-75,
-35,
-9,
-37,
9,
-15,
80,
-4,
79,
-15,
74,
3,
-51,
3,
20,
-12,
-31,
33,
-12,
-38,
27,
-8,
66,
-1,
4,
-13,
32,
52,
15,
30,
25,
59,
61,
-3,
-6,
73,
-5,
43,
-28,
45,
25,
22,
32,
23,
-67,
4,
-26,
-31,
-18,
28,
-9,
-8,
-4,
-14,
32,
-4,
52,
-38,
-57,
11,
21,
-31,
-18,
-49,
44,
-19,
-1,
47,
-8,
9,
34,
0,
-63,
-35,
12,
-68,
-33,
0,
-58,
54,
45,
-22,
12,
-11,
-51,
-9,
-24,
-4,
-4,
0,
-45,
-14,
79,
-27,
-25,
68,
5,
45,
-18,
18,
-37,
-13,
3,
-20,
15,
-13,
-4,
-32,
-20,
-25,
-6,
26,
-11,
-14,
-9,
23,
55,
37,
-36,
-69,
81,
1,
-4,
-24,
14,
83,
-40,
-21,
-70,
1,
29,
19,
-73,
27,
-36,
58,
-23,
-10,
-30,
32,
14,
-38,
-51,
8,
27,
34,
-2,
44,
26,
-23,
-14,
-15,
-19,
37,
-55,
-64,
68,
-13,
-55,
46,
8,
44,
34,
-6,
-32,
30,
11,
-14,
-22,
15,
11,
-70,
1,
-4,
-56,
62,
-39,
15,
40,
38,
22,
-34,
13,
-22,
-23,
-45,
-16,
-7,
26,
45,
-20,
-56,
42,
-15,
-16,
-46,
-47,
0,
11,
25,
-22,
31,
-61,
-10,
-6,
-35,
-25,
20,
-7,
6,
7,
19,
-8,
11,
21,
56,
86,
75,
-26,
11,
4,
-62,
-9,
-11,
-72,
41,
-31,
-87,
-31,
-11,
-3,
18,
1,
0,
4,
-5,
27,
6,
-30,
18,
3,
-17,
-26,
19,
0,
68,
0,
-11,
11,
4,
1,
-8,
-40,
16,
-50,
-16,
21,
7,
-31,
36,
-43,
54,
-9,
-53,
-50,
8,
7,
-31,
42,
-62,
24,
0,
-7,
-18,
9,
41,
10,
51,
13,
-20,
5,
-14,
24,
30,
-40,
-23,
75,
80,
35,
5,
29,
27,
10,
-18,
22,
-63,
21,
-11,
8,
-28,
-12,
8,
54,
-6,
-51,
17,
-18,
62,
-9,
13,
33,
-2,
-10,
-95,
17,
27,
-36,
25,
38,
-31,
-20,
14,
24,
21,
-16,
-9,
-36,
73,
31,
-13,
-58,
-6,
29,
-14,
18,
19,
-60,
52,
11,
-36,
-64,
-66,
-25,
6,
6,
10,
31,
-35,
-16,
16,
-44,
74,
23,
-23,
-11,
-12,
7,
-9,
16,
-3,
-17,
0,
-69,
-7,
-12,
2,
-12,
-3,
-30,
-23,
-23,
29,
12,
-40,
-5,
29,
92,
-4,
27,
45,
-17,
-26,
-12,
-11,
-31,
-18,
20,
23,
21,
-36,
9,
39,
-64,
19,
-27,
44,
11,
13,
-26,
-3,
-27,
16,
-48,
24,
-5,
34,
22,
29,
6,
8,
-6,
-9,
-31,
-37,
32,
-55,
32,
38,
18,
5,
10,
-31,
-14,
53,
47,
37,
44,
51,
25,
4,
1,
27,
5,
22,
-29,
53,
-36,
53,
3,
-27,
47,
-40,
-54,
-18,
-42,
-4,
1,
-25,
-21,
12,
11,
5,
12,
4,
26,
-5,
-16,
61,
-49,
-69,
-28,
-18,
-2,
-43,
-28,
27,
12,
36,
60,
1,
35,
0,
25,
13,
-25,
1,
-12,
-70,
64,
67,
-15,
-51,
61,
41,
60,
44,
-43,
-34,
39,
-21,
-52,
-63,
-49,
7,
-8,
17,
27,
-18
] |
MR. JUSTICE BOTTOMLY:
Action for conversion of saw logs and for cost of building logging road. The jury’s verdict was for defendant. Plaintiffs’ motion for new trial was denied and they here appeal from the judgment entered.
Defendant owned rough timber lands upon which was growing timber from which lumber could be manufactured. In October 1946, he entered into a parol agreement with plaintiffs granting them the right to enter his timber lands and to cut and remove therefrom the marketable timber for which plaintiffs were to pay $4.00 per thousand board feet. Plaintiffs immediately began the cutting of the timber and construction of a logging road on defendant’s land. There was no time limit for the completion of the cutting of the timber or the removal of the logs.
During the years 1946 and 1947 plaintiffs cut, trimmed, bucked into log lengths, skidded and hauled from defendant’s lands to plaintiffs’ sawmill and sawed into lumber 300,000 feet board measure of such saw logs, all of which were sealed at plaintiffs’ sawmill and upon sale of the lumber, plaintiffs paid the defendant therefor at the agreed rate.
In July 1948 defendant, through his counsel-, directed a written notice to plaintiffs reading:
“Mr. Rex Sorensen:
“Hall, Montana
“Dear Mr. Sorensen:
‘ ‘ Pursuant to a certain verbal agreement entered into between yourself and Mr. Paul Jacobson, owner of certain lands near Helmville, Montana, and by the terms of which verbal agreement you were to cut and haul from Section 18, Township 12, North of Range 12 West, certain timber and to pay Mr. Jacobson, the owner thereof at the rate of $4.00 per thousand feet for such timber cut and hauled. There is now laying on said lands of Mr. Jacobson, between 40 and 50 thousand feet of such timber cut by 'you, which has not been hauled away or paid for by you. Unless such timber is disposed of in the near future, its value shall be materially decreased, and it shall soon become worthless.
“Therefore, you are hereby notified that unless you pay for and haul away said timber within ten days after receiving this notice, Mr. Jacobson will consider your contract at an end, and dispose of said timber as he best sees fit. Any and all timber hauled by you is to be paid for in advance of taking the same from the said Section 18.”
At the time of receving the above notice there were between 70,000 and 75,000 board feet of logs all cut by plaintiffs, lying on defendant’s land.
Following the receipt by them of the notice, plaintiffs were engaged in hauling their logs when defendant stopped the operation and demanded that plaintiffs, unload the logs from their trucks and ordered that none of the logs be removed until plaintiffs had sealed the logs on the ground where severed and pay defendant therefor.
Thereafter defendant took possession of the logs, caused them to be sawed into lumber, which he claimed and used.
Plaintiffs contend: That as and when such trees were cut and severed from the land they became their personal property; and their title could not .be divested except by due process of law and that defendant is liable in damages for the conversion of their logs.
Defendant asserts that the logs were not removed from his land within a reasonable time after notice and that plaintiffs thereby forfeited not only their right to enter upon defendant’s lands for the purpose of removing their property, but that they also forfeited whatever rights they may have theretofore had therein and that defendant as owner of the land succeeded to plaintiff’s rights in the logs.
The trial court adopted defendant’s theory and, over plaintiffs’ objections, instructed the jury:
“You are instructed that if you find that no time for removal of said logs was set that plaintiffs had to remove the same in a reasonable time, and if they failed to remove said logs in a reasonable time, then they lost not only their rights to enter the premises, but also whatever right in the logs they may have had.”
The parties operated under their simple oral agreement from the fall of 1946 to the summer of 1948, cutting and removing 300,000 board feet of logs all sealed at plaintiffs’ mill for which they paid defendant at the agreed rate and in addition thereto plaintiffs also cut, trimmed, bucked and skidded prior to July 3, 1948, between 70,000 and 75,000 board feet of logs which were on defendant’s land and ready for hauling when defendant gave his notice; stopped further cutting and hauling and attempted to impose entirely new conditions, namely, that before any of the severed logs could be hauled they were to be first scaled in the woods rather than at the mill and that they were to be paid for in full.
Following this stoppage of plaintiffs’ operations, defendant laid claim to the severed logs, delivered a part of them to one Tubbs, and a portion thereof defendant sawed into lumber and used.
By the weight of authority such a parol or simple contract for the sale of growing timber, to be cut and removed from the land by the purchaser, is not to be construed as intended by the parties to convey any interest in land, but as an executory contract for the sale of the timber after it shall have been severed from the soil. Such a contract implies a license to enter the lands of the licensor for the purpose of severing the timber and removing the same. The severing of the trees constituted part performance of the contract, the logs becoming the personal property of the licensee. Such partly performed contract does not come within the provisions of the Statute of Frauds. R. C. M. 1947, sec. 13-606; Stillinger v. Kelly, 66 Mont. 441, 443, 214 Pac. 66; Restatement, Contracts, sec. 200(c). See: J. P. Miller & Sons v. Hanberg, 79 Wash. 144, 139 Pac. 1085. Partial performance of an oral contract takes it out of the Statute of Frauds. McIntyre v. Dawes, 71 Mont. 367, 376, 229 Pac. 846, and cases cited therein; Conner v. Helvik, 105 Mont. 437, 452, 73 Pac. (2d) 541. The Statute of Frauds was never intended to cloak fraud, but to prevent it. See: Wells v. Waddell, 59 Mont. 436, 196 Pac. 1000.
It is also well settled that, while the license to enter upon the land and cut timber thereon is irrevocable as to that part of the timber which has been severed from the land, yet while the contract remains executory it is revocable at the will of the owner of the land.
Here the defendant revoked the license as to the growing timber which had not been severed, as was his right, and the plaintiffs did not cut or sever any timber after such revocation. However defendant went further and attempted to revoke the license as to the severed logs. These he could not take without due process of law.
Such contract and license may not be revoked as to acts already done under it. The revocation is prospective and not retrospective. It does not affect the title to the timber which has been severed prior to revocation. Compare: Gullicksen v. Shadoan, Mont., 218 Pac. (2d) 714, 719, and cases cited therein.
We think the general rule set forth in 54 C. J. S., Logs & Logging, sec. 29 c, pp. 730, 731, is applicable here: "On severance of timber from the soil under a license, it becomes the personal property of the licensee, and he is entitled to remove it as his own even though, after severance and before removal, the license is terminated by revocation or by expiration of a time limitation.
"Timber severed from the soil under the provisions of a license or permit authorizing it, and before expiration or revocation of the license or permit, becomes the personal property of the licensee or purchaser, and he is vested with the rights incident to ownership of personal property. As fast as trees are severed from the realty, the contract of sale attaches to them as chattels, and the licensee is entitled to remove them as his own, and the owner of the land has no right to take the timber cut under the license without due process of law.” Emphasis supplied. See: Sparkman v. Kirkpatrick, 17 Ala. App. 428, 85 So. 829. Compare: Hodges v. Buell, 134 Mich. 162, 95 N. W. 1078; Erskine v. Savage, 96 Me. 57, 51 A. 242, 243; Kerschensteiner v. Northern Michigan Land Co., 244 Mich. 403, 221 N. W. 322; Drake v. Wells, 11 Allen 141, 93 Mass. 141; Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295.
However, there are exceptions to the revocation of a license: ‘ ‘ * * * a license under which expenses have been incurred, cannot be revoked, either by the licensor or by the grantee of the licensor who bought with notice of the license and with knowledge that the ’ licensee had expended money and performed labor on the faith of the license. * * *
"Since timber severed from the soil during the life of the license becomes the personal property of the licensee, * * * after timber has actually been severed under the license the right of revocation is lost with respect to such timber. Where timber has been cut under a license, the license becomes coupled with an interest. A revocation merely cuts off the right to cut and remove timber in the future. ” 54 C. J. S., Logs & Logging, sec. 29 d, p. 731. See cases cited.
In 34 Am. Jur., Logs & Timber, secs. 46, 47, pp. 522, 523, tbe rule is stated as follows: “Tbe severance of trees under a license for such purpose, prior to the revocation thereof, operates, ordinarily, to vest in the licensee the title to the trees so severed. The license after severance will become coupled with an interest and irrevocable, and the licensee will have a perfect right to enter and remove the trees thus severed. * * * Where the licensee has made expenditures upon the faith of the license, it has been held that it cannot be revoked at the will of the licensor unless the licensee is placed in statu quo.” Compare Williams v. Bisson, 141 Me. 117, 39 A. (2d) 662.
In 17 R. C. L., Logs & Timber, sec. 7, at p. 1075, it is said: “# * * the revocation of the license by the vendor would be equivalent to a breach of an implied or express part of the contract, which would bar the purchaser from securing its benefits and would entitle him to sue for damages * * A license cannot be revoked as to acts done under it. The revocation is prospective, not retrospective. Therefore it cannot affect the title to the vendee of trees severed at the time of revocation, and, in some instances, where the licensee has made expenditures upon the faith of the license, it cannot be revoked at the will of the licensor, unless the licensee can be .placed in statu quo.” See cases cited. 1 Thompson on Real Property, secs. 114, 115, pp. 161, 162; II Jones, The Law of Real Property, secs. 1605-1610, pp. 485-488. Compare: Gibson v. St. Joseph Lead Co., 232 Mo. App. 234, 102 S. W. (2d) 152, 156, 157.
Our state constitution, Article III, section 27, provides in part: “No person shall be deprived of * * * property without due process of law.”
The Constitution of the United States, by the Fifth Amendment, provides: “No person shall be *' * * deprived of * * property, without due process of law”, and by the Fourteenth Amendment, it is provided, “nor shall any State deprive any person of * * * property, without due process of law”.
Under the due process provision, no citizen shall arbitrarily be deprived of his property. This the executive, legisla tive, or the courts cannot do or authorize to be done. Due process of law extends to every case which may deprive a citizen of property. It requires an orderly proceeding adapted to the nature of the case and in accordance with law, in which the person has an opportunity before the taking to be heard, and to defend, protect and enforce his rights. Before the property of a person can be taken by another and converted to his own use, a hearing or opportunity to be heard is .absolutely essential. We cannot conceive of due process of law without this.
The testimony of plaintiffs was not contradicted that they had, under the agreement or license, expended the sum of $5.00 per thousand board feet for felling, trimming and bucking the logs and the sum of $5.00 per thousand board feet for skidding the logs, which the defendant converted to his own use.
One who has purchased timber under an oral agreement and has felled it retains title to the timber after the oral agreement has been revoked. In Gibson v. St. Joseph Lead Co., supra, the court held that while the contract was not énforcible under the Statute of Frauds, it operated, until revoked, as a license to fell timber, and that the licensee obtained title thereto the moment the trees were severed from the stump. Such holding as to the non-revocability of the license to the vendee to enter on the land and remove the trees after he has severed them from the soil is based on the fact that it would be a breach of good faith to permit such a license to be revoked because the vendee has to spend money and services in severing the trees from the soil, and so far as they have been severed from the freehold they have been converted into personal property and the title to such trees has vested in the vendee, the license has been executed pro tanto and a revocation would operate as a fraud on the vendee and deprive him of his property to which he has become legally entitled.
Dixie Pine Products Co. v. Breland, 1949, 205 Miss. 610, 39 So. (2d) 265, 266: There the owner of land revoked license or permit to cut and remove timber, including logs felled by licensee, and landowner undertook to sell same to another party, where at time of revocation of license, licensee had cut and felled some 60,000 feet of logs, of the value of $1,207.72, but had removed and paid for the stumpage only to the extent of $24.40, and he still owed landowner approximately $500 on stumpage for the remaining logs that had been cut and bunched in the woods for hauling at time of revocation; licensee had expended or incurred an expense of $509.74 in cutting and bunching. The court held that licensee owned the said logs, subject to the right of landowner to collect the stumpage or purchase price thereof per thousand feet.
The court stated: ' ‘ * * * we are of the opinion that the title to the logs in question passed to the purchaser, subject to the right of the seller to enforce a lien for the purchase money thereon, when the standing timber was cut into logs for removal from the lands * * * ’ ’ Judgment for the plaintiff for conversion was affirmed. Compare: Rankin v. Ridge, 53 N. M. 33, 201 Pac. (2d) 359, 7 A. L. R. (2d) 510.
In Clark v. Aldrich, 1 Cir., 278 F. 941, 942, action for conversion of wood and sawed lumber, Clark gave Aldrich a bill of sale of all the standing timber, Aldrich to have 2y2 years to cut and remove it. Aldrich cut all of the timber within time; at expiration of time there were still on Clark’s land about 425 cords of wood, 24 cords of slabs, and 150,000 feet of sawed lumber. Clark claimed the wood and lumber forfeited to him by reason of Aldrich’s failure to remove it within the time, excluded Aldrich from the premises and it was conceded, converted the wood and lumber to his own use. The court stated: “Counsel on both sides agree, as clearly they must, that when the timber was cut it became personal property belonging to the plaintiff [Aldrich], [Citing cases.] Under such circumstances the court below was plainly correct in ruling that this personal property could not be forfeited to the defendant unless such intention was plainly expressed in the contract; also that in this contract there was no language importing forfeiture of the cut wood and lumber. * * *
“Willful nonperformance, the basic idea in defendant’s eleventh, twelfth, and thirteenth assignments of error, has no bearing on the issue in this case. Of course the plaintiff’s rights to the lumber and wood originated in the contract. But after it was cut it was his. This suit sounds in tort for its conversion. Plaintiff does not declare on a contract which he may or may not have willfully broken. Defendant’s rights were all fully secured by the court’s instruction that the jury should assess any damages defendant had suffered.”
In Giles v. Simonds, 15 Gray 441, 81 Mass. 441, 77 Am. Dec. 373, the court stated, relative to a verbal contract for the sale of standing wood or timber, “It is only a license or authority to do certain acts on the land, which, but for such license or authority, would be acts of trespass. If it were otherwise, if under such a contract a right were conferred on the vendee to enter on the land and then to exercise a right or privilege at his own pleasure, free from the control of the owner of the land, during the continuance of the contract, it would clearly confer on the vendee a right or interest in the premises, which would contravene the Statute of Frauds. * * There can be no doubt that a valid license to enter on land may be given by parol. But this rule rests on the distinction that a license is only an authority to do an act or series of acts on the land of another, and passes no estate or interest therein.
‘ ‘ * * * It would be a manifest breach of good faith to permit such a license to be revoked. No man should be permitted to keep the property of others, by inducing them to place it upon his land, and then denying them the right to enter to regain its possession. * * *
“* * * But such a license executed to the extent to which it has been acted on has operated to induce the vendee to expend money and services on the property, and thereby to convert it into personal chattels which have become vested in him. The revocation of the license in such case would deprive the vendee of his property. It has therefore been held that such a license, while it is executory, may be countermanded, but that when executed it becomes irrevocable. Cook v. Stearns, 11 Mass. 533; Cheever v. Pearson, 16 Pick. 266, 273; Ruggles v. Lesure, 24 Pick. 187, 190; Claflin v. Carpenter, 4 Metc. 580, 38 Am. Dec. 381; Nettleton v. Sikes, 8 Metc. 34.” Compare: Buker v. Bowden, 83 Me. 67, 69, 21 A. 748; Rankin v. Ridge, supra. Holding to the same effect see Erskine v. Savage, supra.
Rehearing denied June 27, 1951.
Conversion, as stated by this court, is every unauthorized assumption of dominion over personal property in hostility to the right of the true owner. And the detriment caused by the wrongful conversion is presumed to be the value of the property at the time of its conversion with interest from that time. R. C. M. 1947, sec. 17-404. The questions to be tried in an action for conversion of personal property, such as this, relate to the ownership and right of possession, and a wrongful taking by the defendant. See: Guthrie v. Holloran, 90 Mont. 373, 380, 3 Pac. (2d) 406; Tuttle v. Hardenberg, 15 Mont. 219, 223, 38 Pac. 1070, 1071; 53 Am. Jur., Trover & Conversion, sec. 24, p. 819, and cases cited; 65 C. J., Trover & Conversion, sec. 37 c, p. 29, and cases cited.
At the time plaintiffs arrived with their trucks upon defendant’s land to remove their logs to their sawmill, and defendant wrongfully and without authority exercised dominion and control over the logs, which were the personal property of plaintiffs, and unreasonably and without any just cause attempted to and did inject new conditions into the agreement with plaintiffs and wrongfully converted the logs to his own use, defendant thereby became liable for conversion of the same.
This action having been submitted to the jury upon erroneous instructions and upon the wrong principles of law applicable to the facts, and the verdict being against law, the judgment appealed from is hereby ordered to be set aside and the plaintiffs granted a new trial consistent with the foregoing.
MB. CHIEF JUSTICE ADAIB, and ASSOCIATE JUSTICES METCALF, FBEEBOUBN and ANGSTMAN, concur.
|
[
57,
68,
-37,
29,
40,
-49,
16,
3,
6,
43,
26,
19,
40,
-50,
7,
0,
-37,
-32,
22,
23,
-23,
-46,
26,
-26,
-30,
-23,
-30,
-6,
-19,
52,
-37,
7,
-13,
-51,
-41,
42,
-22,
4,
-49,
44,
23,
2,
43,
-32,
36,
28,
50,
-18,
29,
74,
10,
-13,
8,
-25,
-16,
11,
4,
13,
-53,
51,
31,
-48,
30,
39,
87,
-50,
-5,
15,
40,
-43,
-12,
47,
-7,
5,
57,
-6,
15,
-27,
-8,
28,
10,
29,
31,
-26,
-36,
-8,
-58,
-5,
9,
19,
-42,
-21,
23,
66,
3,
-5,
-54,
16,
-48,
21,
27,
-6,
44,
-45,
-8,
-33,
-9,
-10,
-16,
54,
19,
8,
17,
50,
36,
-20,
23,
-30,
15,
18,
-24,
-22,
0,
-30,
-52,
6,
2,
13,
28,
-75,
34,
4,
-12,
36,
16,
-18,
-17,
-25,
-17,
2,
9,
-6,
-56,
34,
5,
-4,
30,
39,
-30,
-5,
-26,
9,
44,
0,
3,
-45,
1,
-1,
36,
-63,
35,
-36,
-41,
4,
30,
47,
-8,
13,
-26,
9,
1,
-66,
-34,
-24,
51,
70,
42,
-2,
52,
47,
-3,
-22,
13,
5,
-34,
4,
11,
33,
18,
39,
39,
-22,
17,
-31,
-33,
-43,
-2,
-13,
-28,
45,
13,
-56,
-15,
18,
-20,
2,
31,
28,
59,
30,
-28,
-14,
-17,
-11,
-16,
75,
-23,
-37,
42,
-69,
-5,
-33,
4,
-8,
26,
4,
81,
44,
107,
-10,
-68,
10,
19,
-32,
28,
-56,
-2,
4,
-35,
-43,
-14,
-51,
-48,
-18,
-2,
13,
-72,
-2,
23,
-5,
-68,
-47,
-1,
34,
18,
39,
26,
-29,
-22,
-24,
-6,
-1,
59,
-3,
20,
10,
-13,
19,
-19,
9,
-16,
7,
23,
17,
-40,
-12,
-21,
-21,
-45,
-11,
8,
-27,
12,
-19,
-41,
-33,
-24,
8,
-62,
-52,
16,
33,
55,
-94,
34,
82,
30,
-11,
-23,
24,
-48,
-55,
-32,
-16,
-11,
39,
11,
-10,
-3,
32,
-19,
-53,
33,
-62,
-3,
21,
-38,
0,
-46,
-34,
44,
2,
26,
35,
33,
59,
-17,
-16,
-46,
53,
0,
-36,
-41,
41,
0,
-34,
-41,
-12,
3,
5,
34,
25,
7,
10,
-36,
24,
8,
29,
-4,
-20,
13,
-45,
-51,
2,
-16,
22,
-36,
-35,
6,
56,
57,
-7,
35,
-11,
-30,
1,
-20,
-4,
21,
8,
3,
48,
38,
-1,
41,
23,
-30,
-26,
-56,
21,
12,
23,
27,
15,
13,
35,
-12,
-63,
-54,
-20,
-28,
-9,
-36,
61,
49,
-9,
-12,
-38,
-11,
-1,
2,
22,
28,
16,
-21,
-7,
-18,
-19,
-20,
19,
3,
-68,
-15,
-24,
7,
-63,
10,
25,
-25,
19,
58,
8,
33,
33,
31,
-42,
13,
-13,
1,
29,
-19,
16,
-15,
-16,
10,
26,
-16,
2,
-45,
-24,
9,
4,
17,
-63,
0,
-17,
2,
73,
21,
-26,
-33,
-6,
-67,
-34,
17,
-5,
-8,
-26,
15,
0,
-15,
34,
22,
-33,
29,
32,
60,
-11,
-15,
83,
43,
48,
19,
-52,
-35,
10,
-1,
-69,
-25,
-19,
20,
18,
-7,
23,
1,
-5,
9,
12,
-11,
-8,
46,
50,
0,
6,
-70,
-16,
-41,
-34,
65,
55,
-93,
-34,
22,
-35,
-15,
-33,
44,
32,
-31,
61,
26,
-38,
15,
-51,
1,
4,
15,
-15,
-30,
45,
-9,
23,
-11,
30,
24,
-7,
15,
-1,
-6,
-15,
-34,
-37,
-31,
37,
-10,
-10,
23,
8,
-16,
-78,
23,
-41,
43,
5,
-37,
-1,
5,
-29,
55,
-15,
-29,
-45,
12,
11,
8,
51,
-39,
-28,
-51,
-20,
63,
7,
-8,
-12,
36,
-15,
-41,
-6,
21,
40,
5,
-24,
-7,
10,
-11,
40,
-61,
10,
-13,
29,
-51,
-22,
-31,
21,
-47,
-17,
44,
18,
20,
51,
-64,
14,
-8,
-24,
-63,
-24,
25,
-2,
-4,
-17,
-21,
-1,
-15,
11,
-16,
-2,
-16,
-13,
8,
43,
24,
12,
23,
92,
11,
-4,
21,
-69,
68,
3,
69,
-33,
-16,
63,
21,
-6,
-47,
18,
-47,
30,
-37,
24,
-4,
39,
47,
11,
41,
7,
-36,
-9,
-21,
-49,
0,
-16,
-24,
-42,
15,
-28,
-38,
-18,
-1,
-35,
8,
47,
-39,
-11,
-1,
-20,
-4,
-25,
51,
10,
-39,
6,
-62,
12,
-3,
-18,
3,
23,
42,
-68,
-10,
-32,
-4,
-49,
-13,
18,
6,
18,
11,
-23,
34,
-5,
-33,
24,
63,
32,
27,
-4,
21,
61,
5,
26,
-8,
7,
43,
-15,
3,
1,
-26,
10,
20,
34,
-23,
76,
-40,
-15,
-15,
23,
-12,
0,
-17,
32,
-26,
30,
26,
-14,
-4,
-44,
12,
-28,
1,
8,
23,
-13,
21,
13,
-19,
13,
20,
63,
5,
-17,
10,
-32,
-7,
16,
14,
-5,
39,
-56,
-31,
-5,
-10,
28,
6,
-52,
-41,
-22,
-6,
35,
32,
7,
-19,
-76,
-15,
11,
-20,
-6,
81,
-43,
-34,
14,
-6,
5,
8,
-49,
37,
-53,
-24,
18,
-57,
8,
70,
17,
-16,
40,
77,
110,
27,
-41,
-61,
-17,
-53,
-46,
42,
-16,
26,
9,
-49,
-14,
60,
16,
-46,
-25,
-103,
-5,
-1,
1,
-53,
50,
3,
53,
17,
-5,
-19,
0,
-24,
19,
-71,
-6,
22,
-51,
-47,
14,
32,
34,
-5,
75,
-22,
-13,
-10,
-2,
63,
-13,
-20,
-42,
5,
-6,
72,
-6,
-11,
9,
5,
-17,
-1,
-6,
6,
7,
5,
7,
-27,
-17,
22,
17,
-23,
6,
-36,
-10,
-6,
31,
72,
44,
-44,
-33,
28,
-23,
23,
-11,
27,
-61,
-46,
20,
7,
10,
13,
7,
-52,
38,
1,
25,
41,
-24,
25,
14,
-41,
-30,
58,
-9,
11,
44,
0,
17,
-32,
20,
22,
-1,
65,
41,
-37,
-35,
16,
-1,
20,
-22,
-34,
-26,
-10,
29,
24,
21,
37,
69,
-10,
-57,
-68,
-50,
16,
27,
5,
-46,
34,
-16,
-58,
19,
-52,
65,
-25,
22,
16,
-32,
-45,
36,
-7,
38,
5,
21,
-30,
73,
-49,
-7,
38,
-5,
-35,
25,
4,
-55,
-34,
-1,
-21,
-24,
63,
-35,
11,
-14,
23,
-16,
-10,
23,
91,
64,
-8,
76,
-10,
-41,
-24,
21,
23,
2,
-46,
34,
29,
-11,
12,
11,
13,
17,
53,
-24,
-15,
-3,
-1,
-15,
60,
-2,
5,
22,
-42,
-3,
-11,
3,
-28,
5,
31,
-67,
-27,
-17,
31,
57,
-1,
27,
25,
-6,
14,
-44,
-32,
-23,
-69,
-42,
-16,
-14,
-26,
25,
23,
-5,
26,
35,
3,
-65,
-90,
-3,
14,
-40,
9,
34,
6,
-5,
4,
0,
13,
-36,
13,
76
] |
Per Curiam.
The petition of relator Leslie Hudson for a writ of certiorari is denied.
|
[
-5,
-52,
26,
2,
36,
-25,
15,
17,
-1,
-27,
-66,
-39,
-28,
31,
-8,
81,
110,
72,
11,
-80,
-14,
19,
-1,
23,
-49,
-9,
58,
70,
-2,
9,
63,
-62,
-55,
39,
-53,
-53,
-25,
30,
18,
-76,
-6,
-91,
0,
35,
10,
-72,
118,
61,
2,
1,
-51,
35,
-13,
2,
-89,
-21,
96,
-107,
-7,
-30,
-46,
22,
0,
6,
-41,
-99,
-47,
12,
46,
47,
38,
-1,
53,
-18,
-4,
-13,
-36,
2,
61,
36,
31,
48,
-29,
61,
-40,
7,
-27,
44,
47,
27,
-20,
-40,
-64,
-5,
-90,
79,
9,
-75,
-11,
-2,
20,
32,
18,
-43,
-31,
10,
-23,
11,
39,
25,
-20,
-11,
-30,
-8,
27,
0,
29,
20,
6,
-74,
-41,
59,
-34,
-41,
-25,
64,
8,
39,
111,
-16,
35,
54,
40,
60,
-22,
-22,
27,
-49,
6,
-67,
-29,
49,
20,
31,
-6,
-48,
-19,
10,
-52,
-50,
51,
21,
-38,
23,
-19,
58,
-8,
-23,
37,
21,
26,
-47,
-44,
-11,
51,
1,
6,
-20,
35,
-86,
-21,
53,
-79,
-32,
-65,
-49,
-60,
34,
-1,
44,
53,
41,
-3,
17,
3,
-16,
-28,
-25,
-10,
32,
-51,
-14,
59,
57,
25,
29,
8,
11,
4,
3,
-15,
30,
-33,
-74,
15,
-43,
-3,
-31,
34,
-16,
-23,
-51,
17,
-24,
27,
31,
26,
11,
20,
88,
46,
5,
8,
-55,
0,
9,
38,
32,
21,
-8,
-17,
51,
-55,
23,
71,
-20,
50,
12,
14,
68,
-45,
23,
39,
69,
-6,
-114,
-73,
63,
56,
-2,
51,
-38,
84,
-30,
-27,
5,
-31,
39,
91,
-55,
-21,
24,
-1,
-89,
-28,
43,
35,
39,
43,
-13,
-6,
-44,
-30,
23,
74,
15,
10,
-1,
-31,
42,
-81,
22,
-23,
-15,
-39,
-3,
48,
-12,
18,
-13,
-37,
4,
62,
-36,
3,
-7,
2,
-33,
-96,
-26,
-4,
-36,
57,
44,
26,
-74,
-24,
-26,
39,
-86,
-61,
66,
45,
-43,
13,
77,
-4,
-21,
0,
-66,
-1,
0,
-43,
6,
21,
33,
-34,
37,
67,
74,
52,
105,
-8,
2,
19,
24,
28,
59,
-36,
64,
-29,
111,
-75,
2,
-50,
-39,
-22,
-13,
36,
84,
-31,
-51,
-14,
-51,
-11,
57,
18,
-87,
-80,
-6,
12,
46,
12,
10,
-6,
-4,
-21,
24,
21,
31,
-51,
-9,
-8,
-35,
3,
40,
47,
25,
-1,
-7,
-29,
-88,
11,
26,
-18,
53,
23,
8,
88,
-35,
-11,
-24,
-4,
-25,
15,
58,
47,
50,
-23,
74,
-27,
-46,
-61,
55,
-33,
-23,
10,
32,
-52,
24,
8,
19,
-26,
-19,
30,
48,
7,
0,
58,
8,
-26,
-64,
-20,
89,
-53,
0,
3,
9,
36,
-37,
-55,
-20,
-16,
-70,
4,
13,
-37,
4,
20,
76,
55,
17,
61,
-42,
-23,
8,
2,
-26,
-107,
1,
-38,
11,
-23,
-30,
3,
-54,
-11,
78,
-52,
36,
-56,
14,
2,
33,
39,
1,
35,
10,
-36,
-17,
36,
7,
-93,
43,
-72,
45,
-55,
-33,
0,
3,
0,
7,
-34,
-32,
31,
27,
-35,
23,
14,
-37,
-46,
-14,
59,
15,
-79,
-45,
-13,
-65,
-48,
46,
32,
7,
-23,
47,
34,
-54,
-29,
43,
2,
2,
66,
-41,
2,
-1,
11,
36,
0,
-12,
-5,
-42,
-49,
22,
18,
15,
-25,
-34,
-34,
-15,
-5,
84,
-43,
-1,
-81,
18,
3,
-76,
64,
-2,
12,
36,
17,
51,
-62,
2,
30,
82,
-39,
2,
-25,
18,
-23,
21,
-13,
-12,
-66,
-19,
21,
-52,
8,
-1,
19,
-16,
-21,
4,
14,
49,
4,
7,
40,
22,
-7,
-7,
-27,
-24,
3,
-14,
79,
-37,
7,
-27,
-14,
29,
-17,
-89,
-78,
-53,
-55,
-29,
-54,
38,
-52,
-97,
40,
-56,
23,
20,
-28,
-47,
9,
64,
0,
13,
20,
21,
-23,
11,
-14,
21,
-1,
-23,
17,
23,
-23,
69,
-20,
-33,
-62,
14,
28,
-28,
32,
70,
-47,
55,
3,
-15,
-44,
-52,
7,
62,
3,
102,
-25,
9,
-43,
43,
-19,
-4,
8,
-27,
41,
-11,
29,
-33,
7,
19,
53,
-54,
48,
-3,
64,
27,
-27,
0,
-8,
-8,
-4,
-22,
-9,
37,
-46,
-6,
-41,
-2,
-22,
-3,
-11,
55,
31,
27,
0,
16,
40,
-32,
-32,
-56,
66,
50,
-22,
-12,
30,
-37,
12,
19,
57,
-37,
-20,
3,
-20,
12,
26,
-110,
34,
0,
-13,
1,
-32,
-33,
-2,
8,
9,
-42,
-20,
14,
-69,
-37,
-11,
-39,
-13,
-59,
-46,
4,
-40,
-8,
55,
2,
-11,
9,
50,
-39,
-13,
41,
-23,
59,
-76,
-34,
38,
0,
42,
32,
-34,
-12,
47,
23,
-63,
-50,
4,
-50,
33,
-80,
-37,
-10,
0,
0,
-66,
-73,
-12,
-1,
9,
-5,
27,
-20,
-65,
94,
-40,
-14,
-29,
-21,
57,
-20,
0,
-77,
26,
-16,
-44,
75,
-21,
-12,
-13,
92,
23,
-54,
6,
-6,
-4,
-9,
26,
62,
94,
96,
-27,
-10,
-28,
67,
68,
74,
-66,
-6,
-4,
-32,
2,
-7,
-90,
11,
37,
-24,
-48,
40,
82,
17,
12,
-49,
33,
-10,
44,
-71,
-93,
9,
-23,
70,
-3,
-55,
-74,
20,
34,
58,
90,
40,
25,
0,
38,
39,
60,
71,
39,
-11,
22,
43,
-50,
25,
31,
24,
-2,
35,
-80,
2,
46,
-15,
21,
-18,
-18,
21,
37,
17,
-7,
-33,
-31,
45,
1,
44,
20,
-31,
65,
94,
-6,
-22,
12,
-81,
1,
27,
-15,
0,
14,
-57,
43,
-29,
9,
-63,
77,
116,
34,
-21,
38,
28,
76,
21,
40,
35,
38,
77,
-20,
60,
-56,
-2,
64,
-12,
-42,
-30,
5,
-26,
45,
-26,
23,
14,
59,
-68,
-3,
-34,
-17,
21,
-51,
-73,
52,
12,
-62,
18,
-9,
10,
57,
-9,
2,
2,
-3,
2,
-23,
-51,
4,
62,
-105,
-5,
2,
86,
-4,
-38,
2,
-11,
-6,
-8,
10,
-61,
45,
-6,
-3,
6,
-1,
-67,
20,
46,
20,
21,
-10,
-62,
19,
-27,
-19,
-16,
-48,
-11,
57,
29,
17,
-56,
42,
-4,
-86,
-38,
71,
38,
6,
-54,
-1,
78,
-81,
90,
-65,
-3,
34,
38,
-8,
-7,
9,
127,
26,
-17,
-43,
-34,
-44,
-1,
1,
40,
18,
-29,
22,
-32,
-46,
-59,
7,
10,
-46,
-46,
-22,
22,
-47,
-79,
40,
-56,
31,
-8,
-17,
29,
8,
33,
41,
-45,
-37,
64,
0,
-49,
14,
2,
-9,
-21,
34,
7,
16,
15,
8,
2,
22,
-60,
-32,
-22,
48,
-43
] |
MR. JUSTICE ANGSTMAN:
Plaintiff, a taxpayer in the town of Hot Springs, brought this action to enjoin defendants from erecting a sewage disposal plant upon property alleged to have been dedicated, platted, laid out and designated as a public park.
The court found in favor of defendants and plaintiff has appealed from the judgment.
The record discloses that in 1948 the town council took the proper steps to hold an election in the town of Hot Springs for the purpose of authorizing a bond issue in the sum of $170,000 to establish a sewer system and a sewage disposal plant. The election carried. At the time of the election it was talked of having the disposal plant about one-half mile east of the town and a survey to that end had been made, but no official action had been taken fixing the site of the proposed plant. In May 1950 the council fixed the location of the disposal plant on a tract-of land which had been dedicated to the use of the public as a park within the limits of the town. The park consisted of a tract of land 215 by 605 feet and the proposed plant would take an area of 30 by 70 feet.
There was evidence that the proposed site would save the taxpayers about $55,000 as against the site one-half mile east of the town and in addition that the proposed site is more feasible. The park in question was dedicated by A. H. Maillette, Florence J. Maillette and Mike Kennelly under the requirements of R. C. M. 1947, sec. 11-602, subd. 9, by filing a plat as an addition to the town of Hot Springs. The plat designated lot 4 as a “public park.” The dedication refers to the plat and otherwise was in the form prescribed by R. C. M. 1947, sec. 11-606, except that it does not mention “parks” but only “streets,” “alleys,” and “public squares,” “as shown on said plat.”
If we treat the dedication as one applying to lot 4 as a public park the court’s conclusion was correct for under the express provisions of R. C. M. 1947, sec. 11-906, the city council has authority to vacate such parks. It provides: 1 ‘ The city or town council has power: To lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, parks, and public grounds and vacate the same.”
The courts hold that lands dedicated as parks may be vacated with the sanction of the legislature. State ex rel. Townsend v. Board of Park Com’rs, 100 Minn. 150, 110 N. W. 1121, 9 L. R. A., N. S., 1045; Clark v. City of Providence, 16 R. I. 337, 15 A. 763, 1 L. R. A. 725; and see Lloyd v. City of Great Falls, 107 Mont. 442, 86 Pac. (2d) 395. It should be noted that this dedication contained no reverter clause such as that involved in Hames v. City of Poison, 123 Mont. 469, 215 Pac. (2d) 950.
Rehearing denied February 14, 1952.
No formal action need be taken to vacate such a park. It may be accomplished .by unequivocal acts showing a clear intent to abandon the use as a park such as the erection of permanent structures thereon used for other purposes. Porter v. International Bridge Co., 200 N. Y. 234, 93 N. E. 716.
We hold that the particular tract of land on which the sewage disposal plant is to be erected has in legal effect been vacated as a part of the park in question.
There is no merit to the contention that section 11-906 merely authorizes the town to vacate the whole of the park and that there is no authority to' vacate a part thereof.
1 The greater contains the less. R. C. M. 1947, sec. 49-128. The judgment appealed from is affirmed.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES METCALF, BOTTOMLY and FREEBOURN concur.
|
[
7,
57,
6,
-9,
3,
-14,
-3,
-53,
39,
0,
5,
13,
74,
55,
-15,
18,
-39,
-45,
-1,
15,
-21,
-26,
11,
-16,
13,
63,
-10,
7,
-51,
-25,
30,
-9,
-34,
33,
-33,
54,
-25,
0,
6,
-23,
11,
-1,
-29,
-12,
32,
109,
9,
0,
30,
-57,
-14,
65,
17,
22,
-61,
-40,
-30,
-5,
2,
-16,
-58,
1,
-41,
29,
3,
13,
4,
-27,
23,
-38,
26,
1,
13,
-74,
45,
18,
50,
-23,
13,
-32,
-31,
76,
-7,
-12,
-44,
-25,
-36,
-11,
31,
1,
27,
-17,
89,
51,
7,
12,
1,
-64,
-26,
-18,
4,
52,
9,
29,
28,
-24,
-43,
-48,
65,
-11,
-54,
22,
6,
-66,
-53,
9,
66,
3,
-28,
-8,
17,
-46,
15,
-29,
-64,
13,
-73,
14,
-11,
0,
-29,
9,
35,
-9,
35,
36,
-3,
0,
45,
57,
-24,
20,
6,
-25,
8,
31,
25,
55,
21,
14,
-64,
-28,
36,
-35,
-5,
3,
13,
-28,
11,
55,
-37,
-16,
-14,
-37,
-8,
38,
-47,
55,
4,
-18,
29,
-25,
30,
4,
-40,
8,
-41,
7,
-15,
-55,
17,
-49,
0,
10,
42,
-31,
-33,
-13,
25,
88,
99,
-87,
-16,
-20,
3,
-30,
-5,
6,
-18,
19,
-15,
1,
-6,
-47,
12,
2,
-43,
-5,
46,
27,
37,
-31,
14,
11,
18,
-12,
46,
16,
-4,
37,
13,
-16,
-40,
-23,
-3,
67,
30,
44,
5,
0,
-35,
-51,
49,
49,
-25,
-11,
24,
43,
-116,
23,
-35,
40,
41,
32,
-25,
16,
28,
2,
-33,
18,
-24,
-44,
0,
41,
28,
51,
-48,
24,
4,
-37,
65,
19,
10,
-15,
0,
37,
-44,
6,
18,
21,
-90,
41,
-2,
30,
-54,
4,
-4,
-13,
6,
10,
-37,
-51,
54,
44,
74,
47,
-42,
64,
-30,
-59,
-7,
57,
19,
-17,
9,
48,
70,
-19,
38,
14,
-28,
68,
-1,
-2,
33,
34,
-14,
62,
31,
76,
53,
47,
3,
22,
-23,
23,
20,
14,
79,
46,
28,
50,
-40,
18,
-42,
35,
-34,
-6,
-39,
-2,
31,
3,
-18,
-27,
7,
11,
-11,
7,
-36,
-8,
-7,
8,
40,
8,
43,
2,
-27,
33,
-24,
-21,
-51,
0,
-31,
7,
-68,
-9,
-61,
-45,
20,
21,
16,
63,
-4,
-48,
-35,
-73,
21,
-24,
32,
-21,
-29,
10,
-73,
22,
86,
-49,
31,
1,
15,
8,
4,
4,
25,
-6,
51,
45,
76,
-72,
-14,
-33,
-18,
11,
-30,
37,
44,
-36,
-20,
-27,
-27,
2,
11,
25,
-10,
9,
20,
49,
-65,
28,
41,
16,
-14,
-58,
33,
-45,
-48,
22,
3,
-39,
-3,
-10,
8,
-16,
21,
-19,
-55,
-62,
54,
28,
3,
38,
-31,
33,
-12,
2,
2,
-20,
-21,
-89,
-12,
-6,
4,
5,
17,
-18,
-8,
-10,
-4,
55,
22,
21,
8,
88,
-16,
5,
6,
22,
43,
-12,
17,
-6,
-55,
68,
-16,
-64,
-9,
38,
3,
10,
-54,
28,
-29,
100,
59,
-55,
-16,
25,
-44,
25,
-19,
10,
54,
-5,
-41,
-4,
-3,
-1,
47,
43,
-14,
63,
45,
-17,
-11,
-28,
70,
-21,
-16,
-18,
11,
2,
0,
41,
-36,
-4,
-56,
-5,
15,
16,
-33,
51,
1,
-35,
-9,
16,
49,
20,
42,
-40,
-22,
37,
28,
-25,
0,
-25,
-7,
71,
3,
17,
49,
-75,
15,
-89,
-37,
42,
-45,
-52,
-17,
15,
-17,
-37,
67,
0,
44,
35,
-18,
-1,
13,
-35,
4,
-8,
-71,
40,
-26,
25,
-21,
14,
-54,
-87,
20,
62,
5,
26,
23,
-39,
-4,
-11,
20,
-65,
23,
-5,
1,
-13,
20,
-70,
-31,
-23,
-45,
4,
5,
48,
-57,
-53,
27,
6,
15,
35,
-10,
33,
29,
-11,
-37,
-27,
-52,
4,
15,
6,
-23,
-25,
-11,
-49,
-6,
-16,
15,
-50,
23,
-29,
-46,
-32,
-21,
-10,
20,
30,
11,
51,
16,
57,
-15,
-60,
28,
-14,
26,
-2,
27,
59,
58,
-41,
-75,
-20,
-62,
31,
12,
-46,
-30,
75,
4,
-49,
9,
15,
48,
-23,
-17,
-24,
-71,
-90,
-3,
41,
-26,
-17,
-22,
9,
-5,
32,
-5,
12,
18,
-26,
-68,
-5,
-6,
-19,
-2,
-23,
26,
-27,
-51,
-22,
19,
-45,
-30,
-53,
-12,
29,
-16,
13,
-21,
-7,
5,
-13,
-11,
1,
9,
-12,
-73,
26,
2,
-55,
67,
8,
22,
-13,
19,
-47,
14,
-10,
-13,
33,
19,
-44,
59,
83,
-24,
-31,
51,
54,
-92,
42,
67,
-3,
-28,
-20,
41,
-3,
1,
0,
-25,
0,
23,
1,
-5,
43,
30,
-7,
-87,
-36,
40,
-5,
-15,
15,
-63,
-39,
-42,
33,
3,
3,
-25,
6,
-44,
-28,
14,
-84,
50,
-19,
-8,
4,
-39,
-12,
0,
1,
-29,
34,
-6,
-89,
11,
14,
13,
-5,
-30,
34,
-40,
37,
-19,
-52,
-24,
22,
-18,
-26,
80,
38,
23,
25,
-18,
44,
22,
-37,
80,
27,
-49,
-7,
-23,
26,
-27,
-39,
6,
-32,
-28,
54,
15,
-4,
-20,
7,
-70,
-14,
27,
2,
-36,
10,
-23,
72,
31,
-35,
-30,
56,
-25,
15,
-21,
-1,
-9,
35,
0,
0,
-99,
7,
57,
-49,
44,
-22,
-41,
34,
-39,
12,
-40,
-1,
-29,
35,
19,
26,
3,
21,
-4,
-61,
32,
54,
4,
39,
-1,
-27,
-12,
39,
16,
-23,
-60,
-9,
20,
-12,
-8,
25,
-19,
47,
-22,
54,
-29,
21,
32,
-2,
-3,
39,
50,
-54,
2,
19,
70,
10,
24,
-1,
26,
-15,
-3,
-40,
-6,
13,
8,
8,
-14,
-10,
11,
9,
-65,
-9,
7,
-44,
-18,
29,
-28,
18,
-40,
-18,
18,
37,
17,
56,
41,
-26,
-19,
-2,
-36,
-4,
56,
9,
-20,
-37,
-44,
-17,
56,
-43,
-104,
-71,
-22,
-13,
43,
-1,
-12,
14,
5,
-35,
-22,
-42,
-6,
10,
-44,
35,
26,
-3,
10,
45,
-93,
-19,
-55,
5,
12,
82,
-31,
-7,
-9,
23,
-5,
47,
66,
-15,
-25,
0,
0,
-73,
18,
49,
36,
8,
0,
-32,
47,
30,
5,
28,
26,
14,
9,
-28,
-12,
38,
29,
4,
-20,
51,
-17,
6,
19,
-33,
24,
2,
-2,
-12,
0,
20,
42,
10,
50,
-43,
-42,
-4,
13,
-62,
34,
28,
17,
18,
-4,
25,
-20,
-55,
33,
33,
23,
7,
-4,
-58,
-11,
-18,
-71,
-20,
-40,
-45,
13,
53,
-92,
-11,
-69,
12,
30,
24,
18,
-48,
-13,
-17,
33,
2,
-53,
59,
-30,
49,
9,
-17,
-24,
-17,
-55,
59
] |
MR. CHIEF JUSTICE ADAIR:
Suit in equity seeking restitution for advancements made by one spouse to the other.
Mrs. Emma Byberg, 41, an unattached widow, boarded a passenger coach at Yakima, Washington, at about 4:00 o’clock on the morning of December 10, 1947, enroute to her home at Bismarck, North Dakota. She first seated herself beside a man occupying a seat immediately behind one wherein sat Harold Baird, 37, single, who was enroute from Seattle to his home in Missoula. After a while the passenger with whom Mrs. Byberg was sitting went out of the coach whereupon Mrs. Byberg struck up a conversation with Baird, moved into his seat and visited with him until he arrived at his destination. At Mis soula, Baird left the train. Mrs. Ryberg continued on to Bismarck.
At Christmas Baird sent Mrs. Ryberg a Christmas card.
On January 3, 1948, Mrs. Ryberg called Baird by long distance telephone and informed him that she was returning to the west coast via Missoula.
On January 16, Mrs. Ryberg arrived in Missoula where she remained for three or four days, staying at a hotel, attending shows with Baird and meeting and visiting with his mother and other relatives.
Baird, a veteran of "World War II, with the aid of a G. I. loan, had built a small four-room home at 118 Beverly street in Missoula, doing all the carpenter work and labor thereon himself and there he and his mother were residing at the time of Mrs. Ryberg’s January visit. Following such visit Mrs. Ryberg proceeded to the states of Washington, Oregon and California where she visited relatives during which time she frequently called and talked with Baird over the long distance telephone.
In February 1948, Mrs. Ryberg returned to Missoula for a second visit at which time she proposed that Baird go with her to Salem, Oregon, for a Chevrolet automobile which she had left with certain of her relatives stating she did not care to have them longer use the machine. On February 21st the two went for the car and on the following day Baird, accompanied by Mrs. Ryberg, drove it from Salem to Missoula where it was left by Mrs. Ryberg who returned to her home in Bismarck by train to settle the estate of her recently deceased husband. From there Mrs. Ryberg called Baird by long distance telephone on an average of once a week.
In May 1948, during one of such telephone conversations, Mrs. Ryberg learned that Baird had planned a fishing trip for May 23rd, the opening day of the fishing season. Both Mrs. Ryberg and Baird were ardent anglers and when Mrs. Ryberg expressed a desire to accompany him on the fishing trip Baird consented. On May 22nd, Mrs. Ryberg arrived from Bismarck by airplane bringing with her a watch purchased in North Dakota which she presented to Baird as a gift. On May 25th, Mrs. Ryberg returned to her home in Bismarck where she remained but a couple of weeks when she came to Missoula again, moving into Baird’s home at 118 Beverly street where, for the ensuing three months she resided and made her home with Baird and his mother.
On June 10, 1948, Mrs. Ryberg opened a personal savings account in the First National Bank of Missoula in the name of “Emma Ryberg Baird” depositing therein checks totalling $11,-000. Also on the same date and in the same bank she opened an individual checking account in the name of “Emma Ryberg Baird” wherein she transferred $3,000 from her aforesaid savings account. At the time of opening the accounts, Mrs. Ryberg told the officers at the bank that she had come to Missoula to get married and for that reason she desired her accounts placed and carried in the above form.
On September 21, 1948, being over three months later, Mrs. Ryberg and Baird obtained a marriage license at Superior, Montana, and that day were there married by a justice of the peace.
At and for a long time prior to the marriage Mrs. Ryberg knew that Baird’s home at 118 Beverly street stood in his name; that it was encumbered by a mortgage which he had executed to secure a G. I. loan of $5,500; that Baird was employed by the United States Postal Department at Missoula; that his take-home salary was slightly in excess of $3,000 per year and that such salary constituted his only source of income. Prior to their marriage, Mrs. Ryberg had informed Baird that she owned considerable property standing in her name and consisting of cash, government bonds, a home in Bismarck, North Dakota, and other property there situate.
On September 14, 1948, being the week preceding their marriage, the couple opened a joint checking account in the Missoula bank wherein Baird thereafter made a series of deposits with money received from his salary warrants. Also in Septem ber Mrs. Ryberg delivered to the bank certain government bonds accompanied by her application to the treasury department requesting the reissuanee of the bonds so as to make them payable to herself or Baird as co-owners. Upon their reissuance and return the bonds were deposited in a joint safety deposit box which the couple had rented from the bank and to which each had access.
Following their marriage Emma Ryberg' Baird urged her husband to pay off his G-. I. loan and on November 3, 1948, she voluntarily withdrew $5,500 from her individual savings account and deposited such sum in the couple’s joint checking account to enable her husband to pay and wipe out his G. I. loan.
On the following day, November 4, 1948, with the knowledge and consent of his wife, Baird paid his debt in full with a check drawn by him on the joint checking account receiving in return a release and satisfaction of the mortgage which he had given to secure the repayment of the loan.
In December 1948, Emma Baird decided to either sell or trade in her Chevrolet on a new ear and on January 27, 1949, Baird, with the knowledge and consent of his wife, placed an order for a new Pontiac automobile making a $200 deposit thereon with a check drawn by him on the joint checking account.
On March 10, 1949, the new Pontiac arrived and Baird, with the knowledge and consent of his wife, accepted delivery paying the balance due on the purchase price with funds obtained from the sale of some o0f the jointly held government bonds. Following the purchase of the new car the wife sold her Chevrolet for $1,050 and invested the entire proceeds in government bonds.
In April 1949, a small fishing boat and an outboard motor were purchased and paid for by a check drawn by Baird on the joint cheeking account. Thereafter the boat and motor were much used by Baird and his wife on the numerous fishing trips which they shared together that spring and summer.
Subsequent to her marriage, Emma Baird gave away many presents including a new coat and two suits to one woman, — a costly dress to another, — two guns to her husband, and to vari ous other persons she delivered various and sundry articles which, according to her version were merely “stored” with such persons but which, according to Baird, were delivered to them as gifts.
On September 9, 1949, Emma Baird, of her own volition, quit her husband and moved out of the family domicile telling Baird that she was through with him. Upon leaving the family home she took with her all her wearing apparel and personal effects as well as many articles for which she had no immediate need including the lawn mower, a two-wheel auto trailer, a canvas tarpaulin, a washing machine, wedding presents as well as a $79 platform rocker and various dishes and rugs.
This turn of events brought to a sudden end the sharing with her husband of the fishing excursions, the home, the new Pontiac car, the boat and outboard motor, and on September 10, 1949, being the day after she left him, Emma Baird commenced this suit in equity against her husband seeking a decree of the court ordering the sale, at public auction, of the husband’s dwelling at 118 Beverly street, the Pontiac car, the fishing boat and motor and further ordering that the proceeds of such sales be impressed with a trust in her favor in the amount of $8,913.50, for advancements claimed to have been made to her husband after their marriage, the complaint alleging that such advancements were procured by reason of false and fraudulent representations made during the couple’s courtship and prior to their marriage.
The husband appeared and defended. A trial of the issues before the court sitting without a jury resulted in findings of fact, conclusions of law and decree for plaintiff. From the decree so entered defendant has appealed assigning as error the denial of his general demurrer to the complaint, the making of the trial court’s findings and conclusions and the rendering and entering of the decree against him.
Defendant appeared by motion to strike designated portions of the complaint which motion was allowed in part. Next defendant interposed a general demurrer to the complaint and upon the overruling thereof he answered admitting certain averments of the complaint and denying others including those accusing him of making false or fraudulent representations.
The representations whereof plaintiff complains are pleaded in the third paragraph of her complaint which reads: “III. That prior to said intermarriage and for the purpose of inducing plaintiff to consent to said marriage, the defendant falsely and fraudulently represented to her that he was an honest, honorable man, that he loved her and wanted her to be his wife, that he wanted to make a home for her and lead a happy, normal married life, and concealed from her his real character. That the plaintiff believed and relied upon said representations and was thereby induced to consent to said marriage; that at the time of said marriage, she believed that said representations and each of them was true; that plaintiff would not have consented to said marriage, had said representations not been made to her and the said concealment had not been practiced upon her.” (Emphasis supplied.)
The representations so pleaded are mere conclusions of the pleader tendering no issue and wholly insufficient to plead either a void or voidable marriage. The record shows that the marriage was fully consummated. Following its performance the husband and wife had constantly consorted under one and the same roof for a year, lacking eleven days, immediately preceding the commencement of this suit. The record shows the wife to be an intelligent mature woman possessed of all her faculties, and considerable wealth with long previous experience in both matrimony and business. The general representations pleaded and upon which plaintiff relies, fall far short of being such as would either vitiate the marriage or entail liability on the part of her spouse. Such representations do not go to the essence of the marriage contract nor do they constitute actionable fraud.
It is only actionable fraud against which a court of equity has jurisdiction to relieve. Such fraud is never presumed. It must be pleaded and it must be proved.
In Longtin v. Longtin, Sup., 22 N. Y. S. (2d) 827, 830, the court said: “Assuming that the complaint alleged much more clearly than it does that defendant had repeatedly and unmistakably promised to love and cherish the plaintiff and that she had never in fact had any such intention, such allegations and adequate proof in support thereof would not entitle plaintiff to an annulment of his marriage on the ground of fraud, even though he might well claim that he relied upon such promises and would not have married defendant if they had not been made. Such fraud does not go to the essentials of the marriage. [Citing cases.] It must follow, therefore, that the allegations of the complaint in this regard do not state facts sufficient to constitute a cause of action in fraud. * * * Courts have never annulled a marriage because of a mere change of mind or for a misrepresentation of a mental state. ’ ’
The contract of marriage forms the gateway to the status of marriage. In entering into such contract and assuming such status, “the parties take each other for better, for worse, for richer, for poorer, to cherish each other in sickness and in health; consequently a mistake, whether resulting from accident, or indeed generally from fraudulent practices, in respect to the character, fortune, health, or the like, does not render void what is done. # * and Lord Stowell ”::= * * adds: ‘A man who means to act upon such representations should verify them by his own inquiries. The law presumes that he uses due caution in a matter in which his happiness for life is so materially involved, and it makes no provision for the relief of a blind credulity, however it may have been produced.’ * * * If the man should in words agree with the woman to be her husband only on condition of her proving so rich, so virtuous, so wise, so healthy, of such a standing in society; yet, ,if he afterward celebrates the nuptials on her representing herself to possess the stipulated qualities, while in truth she is destitute of them; still, in such celebration, he says to her in effect and in law, ‘I take you to be my wife, whether you have the qualities or not, whether you have deceived me or not.’ In other words, he waives the condition. To carry, such a condition into the marital relation would violate its spirit and purpose, and be contrary to good morals. The objects of marriage, rightly understood, transcend all considerations of the kind mentioned; and, if the purchaser of a jewel could not annul the bargain by reason of the seller sending it to him in a plain envelope of paper, instead of a figured one, as was contemplated, — surely the husband should not be permitted to repudiate his marriage, though he should discover an absence of some secondary thing, to which he had given his affections, instead of placing them where he had promised.” 1 Bishop on Marriage and Divorce (5th Ed.), secs. 167, 168, pp. 143, 144.
In Lewis v. Lewis, 44 Minn. 124, 126, 46 N. W. 323, 9 L. R. A. 505, 20 Am. St. Rep. 559, the court, recognizing that concealment or deception by one of the parties in respect to traits of character, temper, reputation, and the like, is not sufficient ground for avoiding a marriage, said: “The parties must take the burden of informing themselves, by acquaintance and satisfactory inquiry, before entering into a contract of the first importance to themselves and to society in general.”
In Schaeffer v. Schaeffer, 160 App. Div. 48, 144 N. Y. S. 774, the court said that “we have not yet arrived at a legal stage which requires an annulment of a marriage because one party or both parties were untruthful to each other in their mutual protestations of all-consuming and undying love. Marriage is yet a status, on which depends the idea of a family, and on which in turn has arisen the structure of civilization as we know it.”
In 1 Schouler, Marriage, Divorce, Separation and Domestic Relations (6th Ed.), sec. 23, at p. 36, it is said: “The marriage relation is not to be disturbed for trifles, nor can the cumbrous machinery of the courts be brought to bear upon impalpable things. The law, it has been well observed, makes no provision for the relief of a blind credulity, however it may have been produced. Fraudulent misrepresentations of one party as to birth, social position, fortune, good health, and temperament, cannot therefore vitiate the contract. Caveat emptor is the harsh hut necessary maxim of the law. Love, however indispensable in an aesthetic sense, is by no means a legal essential to marriage; simply because it cannot be weighed in the scales of justice. So, too, all such matters are peculiarly within the knowledge of the parties themselves, and they are put upon reasonable inquiry.”
In Long v. Long, 77 N. C. 304, 307, 24 Am. Rep. 449, the court quoted with approval from the early ease of Scroggins v. Scroggins, 14 N. C. 535, 3 Dev. 535, as follows: “ ‘There is, in general, no safe rule but this: That persons who marry agree to take each other as they are * * And we cannot but say, that nothing could be more dangerous than to allow those who have agreed to take each other in terms for better, for worse, to be permitted to say that one of the parties is worse than expected.’ ”
Courts must recognize, as did the Immortal Bard, that, “All lovers swear more performance than they are able, and yet reserve an ability that they never perform; vowing more than the perfection of ten, and discharging less than the tenth part of one.” During courtship lovers of both sexes are apt to set their best foot forward and resort to display, self praise, pushing, puffery and even flattery all of which fall within the category of “the showman’s privilege” rather than within the realm of actionable fraud. Simplex commendatio non nocet. Self praise is no recommendation. For that reason it is no representation and nobody trusts to it. By it no one is deceived.
Error is specified in the making of the trial court’s finding and conclusion to the effect “that all the allegations of the plaintiff’s complaint are true.”
In her verified complaint the plaintiff swore: “That the defendant procured the $5,500 above referred to from plaintiff in the month of November, 1948, and applied the $5,500 on the purchase of a dwelling house, placing the title of said dwelling in his own name to the exclusion of the plaintiff and against her wishes(Emphasis supplied.)
The quoted allegations of the complaint are not true. On the contrary they are false and contrary to the undisputed evidence submitted at the trial. The money was not advanced “on the purchase of a dwelling house” nor was it used by defendant for “placing the title of said dwelling in his own name.” Such wholly unfounded allegations were inserted in plaintiff’s complaint for the obvious purpose of bringing it within the provisions of R. C. M. 1947, section 86-103, in order to withstand the challenge that it fails to state facts sufficient to constitute a cause of action. This can avail plaintiff nothing for she did not and could not prove her false allegations and she could not establish a case for relief under section 86-103, supra.
The uncontroverted evidence is: That the defendant Harold Baird had acquired and that he owned the fee simple title to the described real property long before he ever became acquainted with plaintiff; that on April 10, 1946, at the time he made written application for a preference rating and a G. I. loan the fee simple title to the property was vested in Baird; that at all times since he has owned and held such fee simple title; that his wife voluntarily made the advancement to him for the express purpose of enabling him to pay his debt and that he used it for that specific purpose.
Payment of Husband’s Debt. There is no evidence that prior to or at the time the money was advanced to pay the husband’s debt, there was any promise, agreement or understanding that he would repay any part of the sum or that he promised or agreed to convey title to any part of his property to his wife or that any condition whatever was imposed other than that the money was to be used to pay the husband’s debt.
The wife testified that after she had deposited the money in the joint cheeking account and after her husband had paid the mortgage debt in full, then and not until then did she want an interest in her husband’s real property. She testified: “Q. But you did urge him to pay up that mortgage on the house? A. Yes, but I wanted my name on it after I spent my money to pay it up.”
As was said in Pieretti v. Seigling, 134 N. J. Eq. 105, 106, 34 A. (2d) 286, 287: “But her money was used at her desire for this particular purpose. 'An appropriation by a wife, herself, of her separate property to the use and benefit of her husband, in the absence of an agreement to repay, or any circumstances from which such an agreement can be inferred, will not create the relation of debtor and creditor nor render the husband liable to account.’ Black v. Black, 30 N. J. Eq. 215. And no trust in the land results. Vigne v. Yigne, 98 N. J. Eq. 274, 130 A. 816.”
The transaction was a gift by plaintiff to her husband. R. C. M. 1947, secs. 67-1706, 67-1708; State ex rel. Board of Equalization v. Cole, 122 Mont. 9, 195 Pac. (2d) 989; Pieretti v. Seigling, supra; In re Harris’ Estate, 9 Cal. (2d) 649, 72 Pac. (2d) 873; In re Estate of Lissner, 27 Cal. App. (2d) 570, 81 Pac. (2d) 448.
One spouse may not make a gift of property to the other and thereafter continue to be the equitable owner of such property. Lewis v. Bowman, 113 Mont. 68, 121 Pac. (2d) 162; Shaw v. Shaw, 122 Mont. 593, 208 Pac. (2d) 514.
In Montana a wife may transfer her separate property, real or personal, R. C. M. 1947, sec. 36-111, and she may make contracts, oral or written with the like effect as if she were a single woman. R. C. M. 1947, see. 36-130. She has the right to give her property away. She may give it to her husband or to any other person.
“A married woman has a right to apply her property, by her own hand or through her husband, directly to the payment of his debts. Also the wife has a right to contribute her money to the improvement of the home of the husband and herself. Where there is a valid and completed gift from the wife to the husband, it is immaterial for what purposes the husband subsequently uses the money or property which was the subject of the gift. The husband cannot be compelled to return the money or property given nor can the wife reclaim or recover it.” 30 C. J., Husband and Wife, sec. 303, p. 707, notes 4-7. Also see 41 C. J. S., Husband and Wife, sec. 156, page 636, n. 6.
“A person who officiously confers a benefit upon another is not entitled to restitution therefor.” Restatement of Restitution, sec. 2, p. 15.
It is the rule in this jurisdiction that a transfer of title to property from one spouse to the other is presumed to be a gift, Kranjcec v. Belinak, 114 Mont. 26, 34, 132 Pac. (2d) 150; Bingham v. National Bank of Montana, 105 Mont. 159, 166, 72 Pac. (2d) 90, 113 A. L. R. 315; Lewis v. Lewis, 109 Mont. 42, 49, 94 Pac. (2d) 211; Lewis v. Bowman, supra; Humbird v. Arnet, 99 Mont. 499, 509, 44 Pac. (2d) 756, and that an advance of money made by one spouse to the other is a gift, a gratuity; no contractual relationship is presumed and no obligation arises therefrom. Bast v. Bast, 68 Mont. 69, 76, 217 Pac. 345; Shaw v. Shaw, supra.
While the presumption that the transaction was a gift may be rebutted by competent evidence, yet to overcome such presumption the evidence must be clear, convincing and practically free from doubt, Lewis v. Bowman, supra; Clary v. Fleming, 60 Mont. 246, 252, 198 Pac. 546, and such presumption is not overcome as a matter of law merely by the positive testimony of an interested witness to the contrary. McLaughlin v. Corcoran, 104 Mont. 590, 597, 69 Pac. (2d) 597; Lewis v. Bowman, supra.
Purchase of Boat and Motor. As to the purchase of the small fishing boat and outboard motor, the defendant Harold Baird testified:
“Well, she suggested buying that boat and motor because she wanted us to be by ourselves. I told her that I could borrow that boat anytime I wanted to so I didn’t see any reason why we had to buy a boat. Well, she insisted that we buy one so I looked around for some prices and wrote for some information about the prices of good boats. I finally found this boat that was priced at $113.00, C.O.D., and then we bought this motor that came to $125.00.
‘ ‘ Q. Then that boat and motor was .bought upon her request and urgency? A. Yes, it was.
“Q. And that was against yonr better judgment? A. That’s right.
“Q. And that boat and motor was paid for out of the joint cheeking account? A. Yes.”
The plaintiff Emma Ryberg Baird testified:
‘ ‘ Q. Who furnished the boat for this fishing trip ? A. I did so that we could be alone once in a while.
”Q. And the motor too? A. Yes.
“Q. So that it was your wish to buy the motor and the boat? A. Yes, it was my wish.”
Purchase of the Pontiac. Relative to the purchase of the new Pontiac Emma Baird testified:
“Q. Now did you want to purchase another automobile? A. Yes, because he was so hard on my Chewy and had to drive his relatives around.
■M * =X: #
“Q. Now at whose suggestion was the deposit made at the Olney Pontiac? A. Both of us.
“Q. Where did that $200.00 come from? A. Out of the checking account.”
It was Plaintiff’s Money. Upon being interrogated as to her expenditures plaintiff testified that it was her money; that she could do what she wanted with it and that what she did with it was her business.
On cross-examination she, gave the following testimony:
“Q. You don’t drink? A. No, I do not, and what I do with my own money is my "business.
* * # *
“Q. And you testified that you were prudent and careful in money matters? A. Yes, I was.
“Q. And that you are careful with your funds? A. Yes.
‘ ‘ Q. Have you had any unusual expenses during the months of October and November? A. That has nothing to do with him.
”Q. But you did have unusual expenses? A. I wouldn’t say so, it is my money.
“Q. Do you want to tell me that you didn’t have many unusual expenses? A. No.
“Q. Did you on October 3rd of this year cash at the Missoula Hotel checks in the amount of $125.00? A. Yes and I sent some of that money back to my home in North Dakota.
‘ ‘ Q. Who did you send it to ? A. To my home.
# ^ =& # #
“Q. Did you on October 10th cash a cheek for $50.00 at the Missoula Hotel? A. I don’t recall.
“Q. Do you recall cashing any cheeks at the Missoula Hotel at any time? A. Sure I did but I don’t recall when.
“Q. Do you recall cashing two checks in the amount of $25.00 each on the 10th of October in the Missoula Hotel? A. No, I don’t recall that.
“Q. Would you say that you didn’t do that? A. I don’t think I did.
“Q. Now on October 11th of this year, did you cash nine $50.00 checks and one $100.00 check? A. No I don’t.
“Q. Did you on October 13th cash a check in the amount of $25.00 at the Missoula Hotel? A. I don’t recall.
“Q. On October 25th did you cash checks at the Missoula Hotel as follows: two $50.00 checks, one $25.00 check and one check in the amount of $15.00, making a total of $140.00 worth of checks that were cashed on October 25th? A. I can’t remember and I don’t think I did.
“Q. What did you do with the money for these checks? A. I can’t remember.
“Q. On October 27th of this year, did you cash at the Missoula Hotel a check in the amount of $100.00? A. I don’t remember, I don’t think I did.
‘ ‘ Q. What did you do with the money ? A. I can’t remember.
“Q. On October 28th of this year did you cash a check at the Missoula Hotel in the amount of $40.00! A. I can’t remember.
“Q. On November 5th of this year did you cash a check at the Missoula Hotel, or I should say checks in the total amount of $400.00? A. No.
“Q. On November 10th of this year did you cash a cheek at the Missoula Hotel in the amount of $100.00? A. No.
‘ ‘ Q. On November 16th of this year did you cash a check at the Missoula Hotel in the amount of $100.00? A. I can’t remember.
“Q. On November 15th of this year did you cash a check at the Missoula Hotel in the amount of $100.00? A. No.
‘ ‘ Q. On November 18th of this year, did you cash two checks at the Missoula Hotel in the amount of $100.00? A. I can’t remember.
“Q. You can’t remember? A. That might have been some of the money that I sent to a friend of mine back home.
“Q. Did you cash checks on the Bismarck bank? A. Yes.
“ Q. So then you were cashing these cheeks at the Bismarck or at the Missoula Hotel to take to Bismarck with you ? A. Yes.
“Q. Did you on November 12, cash checks in the total amount of $140.00? A. I can’t remember.
“Q. Do you remember back in the cross-examination that you testified that you played the slot machines? A. I don’t remember that but I do play them some.
“Q. Have you been playing the slot machines during the month of October and November? A. Some.
‘1Q. And you want the court to believe that you would cash your checks here in Missoula and then send the money back to North Dakota? A. Yes, it was my money and I could do what I wanted with it.
“Q. You say that you played the slot machines? A. Some, yes.
“ Q. Is it not true that you have been playing these machines a good deal? A. I said some.
“ Q. As a matter of fact, is it not true that you have put the greater share of that $1,800.00 into the slot machines? A. I played them some but I think that I owe that to myself.”
The money and bonds which plaintiff brought with her from North Dakota were her property. She had the right to dispose of this property as she pleased. For what and on whom she spent her money was her business. How she disposed of her bonds was likewise her business. These fights she exercised to the fullest extent. The funds, credits and other personal property which she voluntarily delivered and transferred to her husband without consideration but with donative intent constituted gifts, R. C. M. 1947, sec. 67-1706, the essential elements whereof are: the delivery, the accompanying donative intent and acceptance by the donee. O’Neil v. O’Neil, 43 Mont. 505, 511, 117 Pac. 889, Ann. Cas. 1912C, 268. The giver has the legal right to make and the donee has the corresponding legal right to accept a gift. Upon his acceptance of the gift the donee acquires the property so transferred. R. C. M. 1947, section 67-1201. Title to the executed gift passes from the giver to the donee. What the donee thereafter does with such executed gift is his business. “A gift, other than a gift in view of death cannot be revoked by the giver. ” R. C. M. 1947, section 67-1708. Nor should he subsequently gain the disfavor of the giver may the donee be held liable as the debtor of the giver nor may he be held liable to account to her. 30 C. J., Husband and Wife, sec. 303, p. 707, 41 C. J. S., Husband and Wife, sec. 156; Black v. Black, 30 N. J. Eq. 215; Pieretti v. Seigling, supra.
“After marriage arrives a reaction, sometimes a big, sometimes a little, one; but it comes sooner or later, and must be tided over by both parties if they desire the rest of their lives to go with the current.” Kipling. Here the reaction, — a little one, arrived eleven days before the first wedding anniversary when the wife voluntarily quit her husband, — left his home,— sued him for fraud and then took the first train for North Dakota where she remained until her marriage had endured a year so that she could sue for divorce grounded on cruelty “existing and persisted in for a period of one year before the commencement of the action” as provided by R. C. M. 1947, section 21-106. On the fourth day after the first anniversary of the wedding, the plaintiff returned to Missoula and that day, September 26, 1948, filed suit No. 17805 for divorce alleging extreme cruelty.
This divorce suit is separate and distinct from her suit in equity No. 17785 for fraud. The pleadings and issues are separate and distinct. Orderly procedure requires that the two suits be kept separate and distinct throughout. However, the district court heard the evidence in both the equity suit No. 17785 and the divorce suit No. 17805 at the same hearing, resulting in a jumbling of the evidence and issues. Of such so-called “time saving” practice we do not approve. The result has been confusion. We are here concerned only with the suit in equity No. 17785 wherein an appeal was taken. We have no jurisdiction of the divorce action No. 17805 wherein there was no appeal. Neither the pleadings nor the decree, if any was entered in the divorce suit, are before us. True the bill of exceptions herein purports to set forth the evidence submitted in both the suit in equity No. 17785 and the divorce action No. 17805. This is because it is impossible to unscramble the evidence introduced at the trial. Thus have the waters become muddied, — the issues and evidence confused and much unnecessary expense, labor and inconvenience occasioned.
In the instant suit in equity No. 17785, plaintiff complains that prior to their wedding her suitor “fraudulently representend to her that he was an honest, honorable man.” This is not fraud. It is life. Common ordinary every day life.
“The first proof a man gives of his interest in a woman is by talking to her about his own sweet self. 'If the woman listens without yawning, he begins to like her. If she flatters the animal’s vanity, he ends by adoring her.” Kipling.
To entitle plaintiff to the relief for which she prays plaintiff was. required to both plead and prove a ease of actionable fraud. She did neither. Accordingly the decree is reversed and the cause remanded to the district court with directions to enter judgment dismissing the action with prejudice.
MR. JUSTICES BOTTOMLY and FREEBOURN, concur.
|
[
16,
17,
-9,
53,
66,
-35,
4,
0,
30,
-98,
-24,
-51,
-20,
-56,
-52,
-9,
-78,
-22,
8,
-12,
-25,
-35,
-57,
-57,
16,
-7,
-20,
-6,
-58,
-30,
50,
26,
-25,
22,
35,
55,
-7,
-36,
-42,
-3,
-16,
-62,
46,
40,
15,
96,
-17,
-44,
11,
-67,
-16,
-38,
1,
33,
75,
-3,
-61,
33,
-12,
20,
8,
-93,
-4,
1,
42,
-6,
91,
-4,
-69,
33,
22,
-27,
54,
-38,
-55,
-29,
57,
-7,
-20,
21,
22,
-12,
-35,
-31,
-11,
-70,
-10,
5,
-20,
20,
-8,
17,
-13,
41,
51,
-10,
-86,
9,
-1,
44,
29,
-92,
1,
-9,
-5,
27,
-9,
-9,
33,
40,
-30,
80,
54,
11,
52,
16,
15,
-28,
-39,
-19,
-6,
-15,
-8,
-8,
75,
9,
24,
74,
61,
-20,
-21,
6,
11,
13,
-13,
-57,
-29,
-104,
5,
-26,
22,
-22,
24,
36,
18,
42,
53,
-12,
-53,
-24,
12,
-26,
1,
-5,
56,
-52,
4,
-9,
15,
46,
-2,
-7,
39,
-3,
-18,
-29,
1,
15,
49,
-9,
-37,
31,
-37,
-30,
23,
38,
-21,
-19,
-40,
11,
20,
56,
39,
-39,
-11,
-66,
-5,
-17,
-4,
3,
72,
-67,
53,
33,
-31,
36,
-60,
-50,
36,
56,
43,
-41,
-43,
71,
-13,
41,
38,
20,
24,
-13,
39,
-11,
-37,
7,
1,
37,
-13,
-27,
18,
-49,
45,
-76,
-9,
23,
3,
-2,
-31,
-82,
8,
-6,
9,
-17,
-22,
-25,
-2,
4,
-35,
-9,
18,
4,
58,
-47,
46,
-13,
4,
-24,
-46,
20,
-14,
36,
-3,
-107,
0,
39,
27,
4,
32,
66,
29,
-37,
-65,
-22,
37,
20,
10,
-30,
-5,
-17,
-14,
-56,
14,
27,
43,
-19,
-44,
-10,
37,
8,
58,
2,
34,
2,
-7,
-7,
13,
-14,
-30,
-9,
5,
-5,
12,
18,
84,
-45,
10,
-26,
27,
22,
-39,
27,
-26,
10,
33,
-14,
26,
34,
-60,
0,
2,
-33,
-46,
-31,
-4,
-38,
10,
38,
7,
6,
-16,
-9,
10,
24,
-48,
12,
13,
40,
-95,
47,
-30,
20,
-20,
-7,
-107,
88,
-35,
-51,
50,
65,
-2,
-29,
35,
8,
46,
-25,
-89,
-47,
32,
37,
-57,
-40,
-26,
-6,
-46,
-43,
-60,
61,
-14,
-35,
51,
7,
-8,
7,
-6,
20,
-16,
-17,
4,
-13,
16,
-1,
49,
-20,
-59,
-32,
38,
52,
14,
12,
12,
68,
9,
-3,
0,
19,
-58,
-4,
-73,
-26,
-82,
-28,
-36,
4,
-39,
-8,
70,
25,
2,
-22,
-77,
-39,
0,
89,
31,
-23,
2,
26,
14,
-4,
-16,
37,
-6,
-27,
69,
-1,
91,
-48,
-44,
21,
-59,
43,
60,
56,
55,
39,
14,
0,
-6,
-16,
-10,
0,
11,
33,
57,
60,
42,
-65,
-40,
56,
50,
-2,
72,
50,
26,
75,
-47,
29,
-7,
24,
70,
-34,
26,
8,
-20,
5,
-60,
-1,
49,
19,
-36,
48,
11,
-14,
53,
57,
15,
-16,
44,
0,
-24,
64,
36,
27,
-46,
41,
-14,
-33,
16,
-16,
53,
-50,
-76,
-39,
-40,
3,
-9,
-27,
13,
-45,
7,
30,
30,
19,
-90,
17,
-22,
-47,
-11,
-17,
37,
7,
-56,
4,
12,
-16,
20,
23,
18,
-29,
-1,
-45,
66,
-78,
-14,
33,
22,
28,
16,
-23,
19,
-35,
16,
58,
4,
13,
-45,
-39,
69,
-42,
0,
-20,
-42,
-67,
-22,
-3,
-24,
18,
81,
28,
23,
-52,
34,
-24,
-42,
-18,
-19,
21,
24,
4,
-45,
-17,
34,
-33,
13,
-53,
68,
-30,
-35,
10,
-48,
11,
15,
0,
-25,
-17,
18,
-1,
-83,
35,
-1,
-26,
-19,
-30,
-30,
-10,
15,
30,
4,
-11,
-49,
-27,
43,
-14,
-82,
5,
-39,
28,
4,
14,
-9,
70,
-82,
30,
-44,
51,
-29,
15,
45,
27,
23,
-50,
-22,
-75,
-18,
50,
15,
14,
-44,
21,
12,
-15,
-3,
-21,
-77,
36,
-19,
14,
-50,
-21,
12,
-41,
-11,
-14,
41,
22,
11,
-53,
14,
-8,
23,
-25,
43,
-31,
64,
49,
12,
3,
26,
-47,
41,
-7,
30,
-4,
-29,
-11,
-43,
-29,
23,
-11,
25,
4,
1,
0,
-66,
24,
20,
25,
25,
47,
-38,
58,
-16,
6,
-28,
-14,
4,
-16,
-20,
-3,
-44,
-23,
40,
-16,
2,
-25,
47,
34,
-32,
-10,
23,
19,
-18,
42,
74,
39,
-32,
11,
-38,
-37,
-14,
19,
-26,
-56,
-21,
45,
34,
2,
3,
-15,
30,
32,
-29,
-71,
29,
89,
-42,
5,
-46,
-6,
-40,
-9,
-46,
-5,
26,
-87,
5,
-9,
53,
29,
-15,
-29,
-16,
-7,
27,
-17,
12,
-47,
54,
-46,
-33,
1,
69,
-6,
-36,
-21,
-54,
43,
8,
-25,
74,
21,
11,
0,
62,
29,
-54,
19,
1,
-30,
-5,
-20,
1,
-2,
24,
45,
35,
-35,
-25,
62,
6,
-55,
63,
15,
-18,
-6,
-25,
68,
-20,
-22,
-8,
-2,
-4,
-34,
-2,
44,
-3,
-13,
24,
57,
99,
55,
-20,
0,
26,
29,
39,
49,
62,
0,
41,
-1,
-25,
15,
33,
-35,
-66,
46,
-41,
-53,
-8,
-31,
-27,
-60,
-49,
2,
32,
-55,
18,
70,
-103,
22,
-14,
-15,
-9,
-30,
13,
14,
62,
22,
-4,
40,
20,
-49,
30,
47,
-1,
-42,
-123,
-9,
16,
-31,
-10,
3,
-26,
-13,
-62,
17,
29,
25,
-8,
-31,
-11,
75,
-50,
-2,
41,
13,
20,
12,
3,
-24,
-35,
11,
-29,
-6,
-24,
-1,
0,
-56,
25,
-14,
-128,
-61,
-77,
-78,
-14,
-41,
27,
-25,
2,
13,
-9,
-2,
54,
25,
78,
10,
102,
-51,
41,
39,
-54,
24,
-26,
65,
-24,
63,
30,
69,
8,
9,
-7,
-14,
33,
-28,
-54,
-41,
25,
-10,
-35,
109,
-3,
0,
0,
-7,
-11,
15,
-65,
-17,
-15,
5,
55,
-39,
9,
26,
17,
-6,
-43,
84,
-25,
50,
45,
-76,
-80,
15,
16,
80,
66,
34,
-36,
91,
-21,
6,
-31,
-6,
58,
23,
-39,
28,
-24,
-3,
-20,
66,
-12,
12,
39,
18,
16,
-59,
0,
47,
19,
55,
13,
82,
-8,
3,
25,
-3,
36,
-29,
-1,
1,
-11,
-2,
27,
-110,
-10,
-35,
28,
-26,
-18,
-29,
-9,
-7,
28,
25,
11,
-13,
-23,
-32,
32,
57,
-23,
32,
27,
-21,
-4,
-35,
-46,
-2,
9,
-37,
-22,
-14,
55,
0,
21,
-8,
38,
-11,
-8,
-97,
42,
13,
-47,
-5,
-14,
12,
-28,
34,
13,
-26,
8,
-8,
57,
-11,
-15,
-56,
114,
-39,
-65,
-17,
77,
0
] |
MR. JUSTICE BOTTOMLY:
Action by Alvin W. Perkins against Yaljean Riley and Glacier Dairy, a corporation, to recover a money judgment on an alleged oral contract. Jury having been waived, the issues were tried by the court. The eleventh judicial district court, Flathead county, Judge Dean King, rendered judgment for defendant Glacier Dairy, and plaintiff appeals. During the trial the suit was dismissed by plaintiff as to defendant Yaljean Riley.
The evidence disclosed that Val jean Riley was the president and general manager of Glacier Dairy and that during the month of December 1947, plaintiff and Valjean Riley had a conversation relative to an agreement whereby plaintiff was to take over the supervision of the defendant’s milk department.
Plaintiff contends that Riley told him in this conversation that if plaintiff would take over the milk department, Riley would furnish everything, lights, power, trucks, steam and the necessary things it takes to operate it, and split the net profits of the department with plaintiff, fifty-fifty; that they would operate on that basis for three months and until an audit was made showing the costs and business, then if it was too much one way of the other adjustments would be made; that under such understanding plaintiff took over the supervision of the milk room on January 1, 1948, and during the time from January 1, 1948, to March 1, 1948, the girl in the office delivered to plaintiff checks of $50 per week, to apply on his part of the profits; that about the 1st of March 1948 plaintiff went to Riley and told Riley that if the audit showing the status of the business could not be out by the 15th of the month, plaintiff would have to have a larger monthly drawing account. Riley told plaintiff he could have $300 drawing account. Plaintiff went to the girl in the office and she made out plaintiff’s cheeks for January and February for the difference between what he had been getting and $300 per month. Plaintiff told her all he wanted was $300 a month because that is what he had agreed with Riley as a drawing account, and after the audit was out he could withhold the difference from that. Plaintiff received the $300 per month from January 1, 1948, until he quit. In December 1948 plaintiff told Riley he had an obligation to meet in the sum of $600 and plaintiff would like to get that amount against what plaintiff had coming on the profit sharing. Riley gave plaintiff a cheek for $700. Under the profit sharing agreement plaintiff had a balance due from defendant as of February 28, 1949, of $1,741.20.
Defendant’s contentions are that defendant employed plaintiff in August 1947 on an hourly basis of $1.10 per hour; that plaintiff worked some overtime; that for the months of August to December 31, 1947, plaintiff drew hourly salary of a little over $1300; that in the month of December 1947 plaintiff and defendant had a short conversation, during which it was agreed that plaintiff was to take over the supervision of the milk room and his monthly salary would be $200; that after an audit of the departments was completed and definite costs and other matters ascertained, then some agreement would be worked out on a rental or commission basis that would be fair to both parties; that both agreed there wasn’t anything they could do until definite information was obtained by an audit showing costs and other matters. No other or further understanding was ever arrived at or any definite figure set as the auditor was busy with income tax returns. This was the only time the matter of a future contract was discussed. Any other arrangement was to be worked out after the full costs and other matters had been determined. This was never done, for the reason that on or about March 1, 1948, plaintiff came to Riley before any audit of the business had been made and stated that he wanted $300 per month, and Riley told plaintiff, “All right, if you want it that way, it will be $300 a month.” Riley told the girl in the office to make checks to plaintiff for the balance on the January and February payments to bring them up to $300 per month as wages from January 1, 1948, straight through. Defendant paid plaintiff $300 per month as wages from January 1, 1948, until plaintiff ceased working for Glacier Dairy in April 1949. In addition thereto plaintiff received in December 1948 from defendant a bonus of $700 for the year 1948. Defendant paid to plaintiff for the period January 1, 1948, to February 28, 1949, the sum of $4,899.90, being full payment by defendant to plaintiff for all services rendered by him. In February 1949 Val jean Riley, as manager of the Glacier Dairy, informed the employees that there was no certainty of any bonus for the current year as business was getting harder and conditions getting tighter.
Thereafter plaintiff filed this suit but continued to work for defendant at the same wage until in April 1949. Plaintiff never made any further or other demand of defendant for any accounting records nor any demand for any money due nor of any other nature. The first the defendant was aware of plaintiff’s demands was when defendant was served with summons in this action.
Defendant had paid a Christmas bonus to the heads of the departments at the end of each year and paid plaintiff a bonus of $700 which brought him to what the heads of the other departments received.
The transcript on appeal discloses that the defendant Glacier Dairy had profit sharing agreements with its plant managers in other cities, but these agreements, wherever they existed, had first been submitted to the board of directors of defendant for approval and reduced to writing, and made a matter of record in the minutes of the corporation. No proposed agreement or any such matter in regard to plaintiff was ever submitted to defendant’s board of directors. Riley testified that as general manager of the Glacier Dairy he was paid a salary of $400 per month or $4800 per year.
The trial court had before it only the testimony of the plaintiff and that of Val jean Riley as to the controversy. Such testimony is in hopeless conflict but the weight to be given it and the resolution of the conflicts was for the trial judge and not for the appellate court.
This is an appeal in an action in law and is governed by the rules announced in Rehberg v. Greiser, 24 Mont. 487, 492, 493, 62 Pac. 820, 63 Pac. 41, 42, wherein it is said: “This court, when exercising its appellate jurisdiction, is a court for the correction of errors committed in or by the court or judge a quo. * * * What the evidence tends to prove is question of law, and hence a finding by a court of a fact which is not supported by any evidence whatever is equivalent to a decision or ruling that there was some evidence tending to prove what is found when in truth there was none; and this also presents a question of law which, when the finding is excepted to, becomes a proper subject for review on writ of error at the common law and on appeal under the Code of Civil Procedure of Montana. * * * What evidence in substantial conflict proves — that is to say, what inference of ultimate fact is to be deduced from disputed evidentiary or probative facts — -is a question of fact the final determination of which is confided to the trial court or jury, whose decision cannot be overturned by this court upon the ground that the evidence preponderated against the finding * * *.” Compare Trenouth v. Mulroney, 124 Mont. 499, 227 Pac. (2d) 590, and cases therein cited.
The trial court found that: “There never was an agreement made by the parties at any time that the plaintiff was to receive 50 % of the profits of the milk department as remuneration for his services and that the defendant corporation has paid plaintiff the full amount of $300 per month from and after January 1, 1948, and until the services of plaintiff were terminated after the commencement of this action.” As a conclusion of law the trial court stated that “the plaintiff has been paid in full for any and all services rendered by him for the Glacier Dairy in accordance with the understanding and agreement of the parties and is entitled to nothing by his action.”
There is ample evidence if believed by the trial court to sustain its findings and judgment. A careful review of the record fails to reveal any prejudicial error, hence the judgment is affirmed.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICES METCALF, FREEBOURN and ANGSTMAN concur.
|
[
38,
34,
12,
15,
31,
-69,
68,
10,
-37,
19,
20,
40,
10,
-37,
-78,
35,
12,
-33,
31,
-53,
28,
-53,
-19,
-21,
-9,
34,
-55,
-111,
-9,
-20,
-30,
11,
-49,
-21,
-77,
43,
42,
-5,
-24,
-39,
40,
31,
56,
12,
52,
41,
-28,
-18,
104,
-3,
-7,
-52,
9,
25,
-8,
-12,
29,
35,
-26,
-5,
-29,
14,
81,
-19,
61,
2,
28,
-45,
3,
21,
-19,
-2,
13,
-50,
-3,
-49,
-8,
-28,
-10,
-33,
5,
18,
44,
10,
-36,
-33,
30,
70,
22,
66,
-51,
-2,
-16,
56,
3,
-59,
-66,
-3,
15,
3,
-19,
-9,
19,
4,
-10,
-9,
-48,
15,
-42,
86,
-60,
-3,
75,
-5,
-19,
-13,
30,
-19,
-27,
-15,
30,
4,
-1,
2,
-36,
1,
-77,
99,
-2,
-7,
-19,
27,
-23,
27,
-46,
-20,
34,
12,
31,
-16,
31,
-31,
-36,
10,
-13,
33,
-47,
21,
-2,
18,
-81,
33,
87,
25,
3,
-60,
31,
-32,
26,
-49,
28,
-37,
-10,
-16,
29,
4,
-5,
9,
-2,
-34,
-50,
-39,
-41,
-34,
1,
89,
-33,
-69,
33,
6,
-7,
-18,
-43,
29,
-19,
-4,
103,
22,
-27,
42,
-29,
3,
-18,
23,
-41,
-43,
33,
-14,
10,
10,
49,
2,
-49,
-27,
0,
8,
45,
18,
27,
51,
-47,
-54,
11,
-28,
-57,
39,
-18,
-12,
35,
-27,
20,
3,
-52,
69,
-15,
-40,
65,
-8,
-43,
-6,
-31,
-20,
15,
12,
46,
5,
31,
33,
-29,
19,
-64,
-26,
-10,
-3,
40,
-42,
-46,
-6,
-60,
79,
-42,
-39,
-29,
11,
-10,
45,
-28,
-33,
13,
-53,
39,
-13,
38,
44,
-26,
-41,
-33,
30,
9,
-14,
36,
-1,
6,
-13,
-13,
-22,
-13,
-40,
-14,
11,
35,
-54,
-21,
-41,
70,
-49,
-28,
-28,
-54,
-16,
-30,
25,
41,
-74,
43,
84,
16,
-23,
-17,
32,
-76,
-53,
9,
54,
-24,
65,
-22,
-29,
-7,
-4,
-10,
-12,
15,
-25,
25,
-14,
-28,
33,
-5,
6,
32,
-19,
33,
83,
-21,
9,
-44,
-20,
-12,
-5,
86,
-9,
-22,
-23,
-45,
-49,
14,
15,
48,
18,
14,
67,
28,
13,
-15,
38,
12,
54,
-17,
-43,
-6,
-25,
-28,
15,
82,
52,
-12,
-1,
-61,
51,
18,
-39,
0,
-44,
-59,
33,
-18,
20,
2,
74,
-33,
59,
-42,
-8,
27,
43,
-32,
0,
-42,
34,
19,
-21,
-33,
-15,
-13,
21,
0,
-25,
0,
46,
-51,
44,
-31,
44,
44,
1,
7,
-30,
-29,
-15,
35,
57,
11,
7,
52,
-19,
11,
-48,
-57,
3,
45,
-61,
-5,
-2,
1,
-71,
26,
19,
-7,
61,
-27,
44,
29,
-12,
42,
-4,
52,
-38,
20,
12,
-10,
12,
-71,
-33,
10,
-1,
-34,
-9,
38,
9,
70,
-21,
33,
-24,
9,
-22,
5,
19,
0,
53,
-31,
17,
-28,
-3,
21,
9,
10,
23,
-23,
-10,
-48,
36,
-2,
-3,
-4,
4,
82,
31,
-3,
63,
-16,
31,
76,
-73,
-14,
24,
8,
-18,
56,
31,
3,
30,
26,
22,
5,
-7,
29,
-22,
-4,
70,
37,
18,
-3,
33,
-28,
-36,
-4,
39,
38,
-7,
-32,
-14,
54,
-3,
-36,
6,
96,
-46,
-41,
25,
-11,
-18,
18,
-37,
42,
-44,
0,
60,
17,
80,
-36,
69,
-10,
58,
-20,
-39,
49,
33,
-21,
-45,
-34,
22,
-12,
23,
-26,
-35,
47,
-22,
-13,
-33,
27,
-18,
31,
-37,
-56,
-17,
-20,
30,
-5,
7,
40,
5,
-6,
-36,
14,
-11,
0,
60,
2,
-13,
9,
14,
-20,
-1,
54,
1,
-10,
-33,
57,
-17,
-38,
-5,
24,
-27,
-22,
9,
-37,
-78,
-14,
9,
-6,
16,
-14,
-39,
-55,
22,
13,
-58,
27,
9,
-57,
-2,
-34,
3,
17,
-12,
-8,
-44,
-27,
-20,
-10,
31,
0,
-24,
-49,
-33,
-76,
-6,
12,
0,
30,
34,
52,
-2,
-14,
-58,
-7,
-54,
19,
-11,
60,
32,
25,
6,
16,
-8,
-17,
-23,
-20,
-35,
2,
-61,
25,
1,
4,
7,
9,
20,
-24,
-84,
23,
-74,
-13,
13,
-15,
-7,
40,
-47,
6,
-47,
-29,
-13,
58,
31,
-18,
-33,
-1,
-14,
24,
-22,
67,
0,
-39,
4,
-49,
-6,
23,
-6,
-27,
-34,
44,
-61,
8,
-27,
37,
7,
-17,
15,
-22,
6,
37,
22,
19,
32,
22,
50,
41,
0,
-21,
-38,
-37,
45,
-39,
6,
51,
-16,
78,
-30,
4,
-15,
-18,
-28,
-5,
-1,
-44,
-2,
-15,
-22,
-42,
16,
57,
-9,
-23,
20,
3,
3,
2,
44,
39,
-7,
-25,
-32,
0,
5,
-19,
60,
26,
-9,
-23,
18,
16,
15,
12,
18,
23,
60,
-31,
-36,
-49,
14,
32,
-7,
-6,
-17,
0,
9,
18,
7,
-29,
18,
-50,
33,
25,
49,
-24,
-20,
27,
19,
-17,
43,
16,
42,
-30,
10,
-35,
56,
15,
-61,
2,
-56,
-39,
8,
-48,
-6,
57,
9,
-12,
2,
15,
10,
52,
-3,
-71,
-47,
4,
-33,
69,
12,
44,
72,
-31,
11,
42,
-65,
-70,
11,
8,
-13,
-34,
-46,
-31,
-27,
12,
93,
8,
-50,
-30,
1,
-33,
42,
-42,
-18,
29,
-16,
11,
-13,
-36,
0,
-14,
15,
-29,
-34,
53,
32,
20,
-4,
8,
15,
-36,
-3,
27,
11,
-9,
6,
-41,
28,
26,
6,
14,
18,
-33,
4,
-25,
0,
5,
0,
9,
11,
17,
-8,
18,
20,
63,
3,
1,
-25,
-2,
-59,
19,
44,
-6,
-45,
-47,
39,
18,
18,
17,
-5,
-58,
-4,
22,
28,
13,
-5,
40,
23,
-22,
-44,
34,
-35,
-10,
17,
25,
60,
13,
10,
-17,
36,
59,
19,
-45,
10,
-11,
-30,
-4,
-15,
-20,
-68,
-32,
-3,
20,
49,
41,
-10,
8,
-10,
-90,
7,
33,
53,
6,
-36,
44,
30,
-47,
-40,
-61,
58,
31,
35,
-13,
-38,
-8,
45,
36,
57,
-79,
13,
0,
98,
-34,
2,
28,
18,
-32,
-1,
-27,
-27,
1,
7,
-15,
-9,
54,
-66,
9,
36,
8,
-45,
-10,
6,
49,
21,
-87,
16,
14,
-26,
-43,
-4,
28,
13,
-34,
5,
7,
-54,
72,
-12,
4,
23,
32,
-66,
41,
-5,
-19,
4,
5,
-35,
31,
24,
46,
17,
-34,
18,
-71,
0,
-11,
-3,
-11,
-76,
10,
65,
11,
32,
54,
18,
7,
-43,
22,
-14,
-8,
-64,
-21,
8,
-43,
-26,
-49,
-33,
48,
0,
43,
58,
26,
-63,
-6,
-49,
-2,
-5,
39,
0,
-6,
0,
-47,
-1,
-28,
75
] |
MR. JUSTICE METCALF:
The plaintiff, a child of 12 years of age, was injured while playing upon a passenger elevator in defendant’s grain'elevator. A general demurrer to the second amended complaint filed by his guardian ad litem was sustained without leave to plead further. He has appealed from the judgment of dismissal.
The first two counts of the complaint are based upon an “attractive nuisance” theory. The attractive nuisance doctrine is recognized by the decisions of this jurisdiction. Gilligan v. City of Butte, 118 Mont. 350, 166 Pac. (2d) 797; Martin v. Northern Pac. Ry. Co., 51 Mont. 31, 149 Pac. 89.
The passenger elevator which allegedly caused plaintiff’s injury was located inside the building used as a grain elevator. The passenger elevator consisted of a platform suspended by ropes and was used by the employees to give them access to the grain bins. It was operated by arranging counterbalances approximately to equal the combined weight of the passenger and the elevator cage and then the passenger could pull himself to the top of the building by means of a rope and pulleys.
On the day of the accident the plaintiff stepped on the elevator and the weight of the counterbalances being greater than the combined weight of the boy and the cage, the elevator was pulled to the top of the building and collided with a pulley at the top. The force of the impact broke the rope suspending the cage and it and the boy fell about 50 feet causing the injuries forming the basis of the complaint.
Respondent’s brief states the question at issue: “The question in the instant case insofar as it involves the attractive nuisance doctrine is whether that rule can be extended to include a lift or passenger elevator located inside a grain elevator.” The defendant contends that the instrumentality that caused the injury must be the cause of the allurement or the doctrine does not apply.
In Gates v. Northern Pac. Ry. Co., 37 Mont. 103, 94 Pac. 751, 755, Justice Smith for a majority of the court laid down the basis for the attractive nuisance doctrine by his analysis of the “Turntable Cases.” “It is my judgment that when the owner or occupier of grounds brings or artificially creates something thereon especially attractive to children, as shown by the nature of the thing itself and the fact that a child was, or children were, attracted to it, and leaves it so exposed that they are likely to come in contact with it, either as a plaything or an object of curiosity, and where their coming in contact with it or playing about it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to use ordinary care to guard it so as to prevent injury to them.”
In his concurring opinion Justice Holloway outlined the conditions necessary for the application of the doctrine:
“ (1) That the injured child was too young and inexperienced to appreciate the danger, and was therefore incapable of contributory negligence. (2) That the injury was caused by an unguarded, dangerous machine, or other dangerous thing peculiarly attractive to children of the class to which the injured one belongs. (3) That the landowner impliedly invited children .of that class to come upon his premises. This invitation may be implied from the fact that the landowner knew, or, in the exercise of ordinary care, ought to have known, that such children were in the habit of coming on his premises to play or to gratify their childish curiosity.”
A more recent statement of the facts necessary to satisfy the requirements for application of the attractive nuisance doctrine is found in Bestatement, Torts, p. 920, sec. 339: “A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
“ (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling’ in it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children Involved therein. ’ ’
In addition to the necessary allegations on other points the complaint alleges that the plaintiff is a boy of tender years; that the injury was caused by the passenger elevator which was a “dangerous and unsafe instrumentality;” that the defendant knew that the grain elevator premises were “peculiarly alluring and attractive to children of tender years ’ ’ and that prior to the date of the accident the defendant knew or in the exercise of reasonable care and diligence should have known that children were on the premises and playing on and about the passenger elevator that caused the injury. It is further alleged that the defendant permitted children to play upon and with the passenger elevator and failed to secure it so as to prevent children from operating it. Further allegations of negligence are that the elevator was allowed to get out of repair so that the safety catch securing the lift and the safety brakes were in a defective condition.
Such allegations bring the case within the requirement laid down by Justice Holloway in Gates v. Northern Pac. Ry. Co., 37 Mont. 103, 94 Pac. 751, and with section 339 of the Torts Restatement. When it is alleged that the person maintaining the artificial condition knows that children of tender years are on the premises and in the building it is not necessary that the instrumentality be the one that attracted them into the building. Once in the building the child succumbs to the fascination of the alluring device. When children were permitted to play in and about the grain elevator premises without objection on the part of the defendant, it is implied that they were there with defendant’s consent and that the defendant knew or should have known that they would be attracted to and likely to come into contact with such an instrumentality as a self-operated elevator.
The defendant insists that clause “d” of the above rule 339 from the Torts Restatement exempts the elevator from the enforcement of the attractive nuisance doctrine. There is no question but that a passenger elevator is a necessary device in the operation of a grain elevator and has great utility. But in paragraph “f” commenting on clause “d” it is explained that if the installation of safety devices is practicable without burdensome cost or serious interference, it is necessary to install such devices to prevent injury to children. In alleging that the defendant allowed the safety device to become defective and failed to properly secure the lift with a chain, the plaintiff has brought himself within the doctrine.
The second count is like the first except that it is alleged that the defendant “knew or should have known” that the condition existed, that children were attracted to the elevator and were playing in and around the premises. This is a sufficient allegation of negligence under the above cases and the rule of the Torts Restatement.
The third count is based on the theory that the plaintiff was on the premises at the invitation of the employee in charge of the grain elevator for the mutual benefit of the employee and the defendant. The complaint then states that the employee “saw that said plaintiff was near the aforesaid passenger elevator and that he might step on same and be injured,” and failed to warn him of its danger or take any steps to prevent the plaintiff from stepping upon the passenger elevator which was in a dangerous condition because of its defective brakes and safety catch.
As an invitee the defendant was obliged to exercise reasonable care to protect the plaintiff from injury. Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063. However, the statement that the plaintiff was on the premises for the mutual benefit of the defendant and its employee is a conclusion not supported by any allegation of fact as to what useful purpose he was serving or what the benefit to the defendant was.
"Without some supporting facts the allegation at best amounts to a statement that the plaintiff was a licensee. It is not alleged that the plaintiff as an invitee was on the elevator for the benefit of the defendant and if he departed from the purpose or the area to which he was invited he became a licensee. The duty owed to a licensee is to refrain from acts of wilful and wanton negligence. Hickman v. First Nat’l Bank of Great Falls, 112 Mont. 398, 117 Pac. (2d) 275, and cases therein cited.
That the defendant was put on notice that boys of tender years were allured and attracted by the elevator, thus placing upon the defendant a duty to warn of the danger of the elevator is the theory of the first two counts. The demurrer was properly sustained as to the third count.
The judgment is reversed and the cause remanded with instructions to overrule the general demurrer as to the first two counts, with leave to further plead and for such other disposition as is appropriate.
ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANGSTMAN, concur.
|
[
-22,
45,
14,
3,
67,
-50,
-22,
11,
-23,
2,
-4,
6,
-13,
-49,
-28,
-6,
0,
9,
-6,
-41,
37,
34,
0,
-21,
-14,
14,
-44,
-50,
-52,
29,
22,
-16,
18,
56,
-60,
51,
44,
6,
67,
-31,
56,
60,
47,
-47,
79,
46,
82,
52,
92,
-11,
22,
12,
-1,
6,
-34,
-32,
-8,
69,
16,
49,
12,
38,
18,
-58,
34,
-11,
62,
-29,
-40,
22,
9,
86,
-5,
21,
-18,
5,
-62,
1,
14,
12,
-3,
18,
-18,
-33,
20,
10,
22,
24,
-56,
9,
-27,
1,
-19,
42,
-28,
27,
-53,
-29,
-37,
-33,
9,
-10,
-32,
-66,
18,
7,
-3,
14,
7,
17,
-57,
64,
-32,
10,
-13,
0,
-12,
14,
-62,
16,
21,
-22,
-4,
-36,
-55,
-2,
13,
-43,
14,
23,
-41,
68,
-16,
43,
-20,
2,
8,
16,
18,
-32,
-62,
26,
16,
44,
-9,
10,
-43,
40,
-19,
-59,
33,
44,
15,
4,
24,
-39,
-72,
0,
6,
-20,
47,
3,
-7,
39,
5,
-29,
-22,
-22,
2,
40,
-60,
2,
2,
-8,
42,
19,
-51,
50,
-76,
-7,
-6,
-24,
25,
-11,
-18,
-23,
9,
-17,
11,
-55,
22,
-22,
-80,
15,
-34,
6,
17,
13,
33,
-13,
-32,
9,
-7,
-27,
43,
30,
-28,
-36,
17,
-12,
32,
45,
-57,
5,
-8,
-2,
-5,
-48,
13,
-20,
-39,
-50,
-18,
-37,
-16,
-42,
-28,
-54,
48,
11,
-24,
-10,
6,
-19,
42,
-84,
-26,
-32,
50,
-33,
36,
38,
-6,
-30,
-30,
-9,
22,
10,
-18,
-21,
43,
-23,
7,
20,
31,
23,
-23,
-11,
-23,
-83,
30,
-21,
38,
3,
42,
32,
-13,
24,
-44,
2,
1,
26,
44,
34,
-27,
-89,
-22,
-19,
69,
-16,
-16,
9,
15,
83,
9,
22,
25,
-20,
-70,
-38,
8,
-16,
7,
-22,
69,
-4,
-16,
-18,
-44,
11,
-27,
1,
23,
12,
32,
67,
-5,
19,
11,
-12,
0,
8,
12,
-10,
12,
49,
7,
-6,
59,
-26,
41,
-24,
-25,
-17,
-4,
-43,
44,
-42,
18,
-9,
5,
-2,
10,
12,
-39,
10,
86,
-32,
-2,
-27,
5,
28,
20,
-39,
-51,
17,
-1,
12,
38,
-43,
-25,
-15,
20,
-70,
27,
6,
5,
3,
28,
24,
-18,
-40,
-7,
-90,
-28,
-2,
-10,
-37,
-15,
17,
-49,
-34,
-2,
23,
26,
-58,
-19,
58,
28,
67,
46,
-48,
16,
-16,
1,
1,
-23,
-31,
18,
37,
-42,
-12,
25,
68,
43,
10,
-43,
29,
6,
-3,
-39,
-35,
-3,
-16,
0,
15,
-30,
4,
12,
-18,
10,
19,
25,
36,
40,
30,
27,
-21,
-13,
27,
27,
28,
53,
38,
36,
31,
0,
-16,
-17,
15,
-36,
-4,
-35,
25,
-18,
-59,
45,
-50,
2,
3,
8,
0,
-29,
-22,
-7,
-15,
-23,
48,
35,
10,
-29,
11,
66,
-33,
41,
-15,
19,
-28,
32,
-60,
39,
3,
6,
28,
25,
-84,
2,
-39,
54,
21,
-10,
-10,
-45,
-5,
86,
66,
1,
13,
-1,
59,
-45,
44,
75,
70,
-42,
-22,
53,
6,
22,
84,
-52,
15,
33,
-39,
-21,
44,
14,
72,
0,
-66,
-49,
-1,
-9,
-4,
73,
-50,
3,
5,
-42,
9,
-51,
-3,
22,
2,
12,
46,
-7,
46,
20,
-86,
23,
-45,
15,
50,
-6,
-32,
29,
-15,
22,
-37,
30,
-46,
-20,
-19,
45,
56,
20,
-23,
18,
-32,
20,
14,
17,
-27,
12,
-10,
20,
65,
24,
26,
46,
56,
-11,
60,
-14,
-3,
-32,
27,
-34,
-10,
69,
-7,
-24,
-17,
-18,
36,
19,
-4,
58,
-5,
-79,
-5,
20,
-11,
-49,
-54,
-9,
7,
-25,
25,
15,
38,
0,
-8,
-58,
-19,
-36,
14,
6,
39,
-35,
-49,
47,
-17,
67,
34,
-20,
3,
2,
-25,
-17,
-5,
-18,
-25,
-10,
4,
-28,
-18,
34,
-11,
7,
55,
-51,
-52,
-38,
23,
-26,
24,
35,
-16,
0,
-54,
-22,
16,
23,
-6,
-30,
-25,
-24,
-47,
-37,
-4,
-50,
-34,
-4,
-9,
42,
43,
43,
-29,
2,
38,
24,
-3,
-25,
-2,
-8,
65,
-8,
-5,
23,
-38,
-8,
-43,
31,
20,
-76,
15,
-60,
-30,
-43,
11,
18,
8,
2,
40,
-33,
-7,
-41,
-36,
-61,
39,
-2,
40,
49,
-11,
9,
-23,
-25,
-45,
25,
-42,
-14,
-19,
-11,
24,
15,
-3,
-34,
-37,
-40,
-45,
53,
-2,
0,
61,
51,
-85,
-9,
20,
-39,
-26,
25,
16,
-30,
4,
37,
-34,
-43,
-19,
-3,
26,
40,
1,
-1,
-3,
19,
-12,
-62,
-59,
-9,
12,
11,
-37,
-16,
16,
49,
59,
-16,
41,
-50,
-54,
-44,
15,
-41,
44,
-21,
-71,
60,
-29,
-3,
14,
19,
-10,
-26,
13,
54,
-27,
-13,
-13,
36,
7,
-27,
-2,
-33,
-67,
-8,
38,
16,
0,
37,
-7,
25,
-21,
35,
-1,
27,
-54,
-2,
-48,
-2,
34,
20,
4,
23,
32,
-7,
-64,
-11,
-25,
-33,
43,
1,
15,
-29,
22,
55,
30,
33,
38,
33,
95,
17,
-17,
17,
-53,
-56,
9,
39,
-35,
43,
18,
11,
35,
-47,
-26,
36,
-15,
49,
-32,
-37,
-25,
-2,
7,
-11,
10,
26,
-16,
-24,
1,
34,
57,
-50,
-52,
10,
-3,
29,
17,
83,
3,
25,
-19,
-8,
-32,
-11,
43,
-60,
22,
3,
43,
32,
40,
-35,
18,
40,
-52,
0,
-6,
21,
15,
-20,
0,
-54,
-11,
42,
-10,
28,
24,
44,
-16,
-32,
11,
-11,
6,
-32,
-1,
11,
6,
-36,
46,
11,
18,
15,
-13,
7,
-44,
-25,
33,
17,
2,
46,
-1,
-10,
-17,
20,
34,
3,
-5,
-2,
19,
1,
11,
14,
-31,
-4,
21,
-43,
25,
44,
-59,
-39,
84,
17,
65,
-20,
-54,
-67,
-52,
-50,
-64,
79,
-48,
64,
27,
15,
45,
-41,
75,
47,
9,
-11,
2,
31,
4,
-55,
7,
-32,
15,
-28,
69,
-44,
-62,
37,
-6,
6,
30,
-20,
-34,
-24,
-7,
-12,
-14,
57,
78,
6,
-43,
-18,
-55,
-36,
2,
46,
32,
-49,
6,
-20,
-58,
-7,
-24,
-21,
-7,
-36,
15,
-28,
0,
56,
-34,
63,
-32,
-8,
-66,
4,
23,
21,
17,
18,
6,
-32,
-34,
16,
37,
31,
25,
13,
-20,
-18,
-21,
-20,
-34,
-41,
-15,
-41,
9,
-12,
-11,
2,
12,
-46,
26,
38,
-13,
-45,
44,
-34,
6,
-5,
55,
12,
40,
0,
3,
60,
-11,
-30,
38,
56,
-27,
-37,
-28,
-13,
-47,
23,
59,
-16,
-47
] |
MR. CHIEF JUSTICE ADAIR:
Certiorari. Original proceeding, wherein relator Emil Borberg as justice of the peace of Billings township in Yellowstone county, petitioned for and was granted a writ to review certain proceedings, orders and adjudications of the respondents, the district court of Yellowstone county and the Honorable F. V. Watts, district judge presiding in district court Case No. 25689. Respondents appearing by counsel made return to the writ so issued and filed a brief on which they submitted their case, waiving oral argument. Relator, appearing by the county attorney of his county, filed briefs and orally argued the cause whereupon it was submitted for decision.
Case No. 7576. December 23, 1950, the county attorney of Yellowstone county commenced in the justice court of Billings township, before Emil Borberg, a justice of the peace, criminal case No. 7576, by filing a criminal complaint against the Elmo Club, a corporation and Robert J. Porter, defendants, charging that “on or about the 18th day of Dec., A. D. 1950’’ upon their premises licensed to sell liquor at retail, they committed the crime of selling liquor after closing hours in that they did there sell whisky “after the hour of two o’clock A. M. and before the hour of one o’clock p. m., to-wit at 3:20 o’clock A. M. of said day contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Montana.”
The allegations of the complaint meet the requirements of the statute. R. C. M. 1947, see. 94-100-1. Therein facts are stated which constitute a public offense and charge a violation of the provisions of R. C. M. 1947, sec. 4-414, being a misdemeanor, R. C. M. 1947, sec. 4-439, within the jurisdiction of the justice of the peace court to try. R. C. M. 1947, secs. 94-4916, 94-114, 94-116; State v. Holt, 121 Mont. 459, 478, 194 Pac. (2d) 651, 662. The complaint is good.
On the day the complaint was filed defendants entered a plea of not guilty. Four days later the defendant Porter and the county attorney appeared in such justice’s court, where, on motion of the county attorney and his representation to the court that an error was made in setting forth the time of the commission of the offense the justice of the peace ordered the complaint dismissed.
Case No. 7582. Simultaneously with the dismissal of the foregoing complaint, without objection and in the presence of the defendant Porter, the county attorney commenced in said justice of the peace court criminal case No. 7582 by filing a new criminal complaint against the same two defendants, charging that “on or about the 17th day of December, A. D. 1950,” upon their premises licensed to sell liquor at retail, they committed the crime of selling liquor after closing hours in that they did there sell whisky ‘ ‘ after the hour of two o ’clock A. M., and before the hour of one o’clock P. M., to-wit: at 3:20 o’clock A.'M. of said day.”
Not only is there no statute forbidding the filing of the new complaint but there is an express statute which provides that if a demurrer to any criminal complaint is sustained for any other cause than that of a want of jurisdiction in the court to hear the offense charged “a new complaint may be made against the defendant.” R. C. M. 1947, sec. 94-100-10.
Except for the allegation in the complaint in the first case charging an offense committed “on or about the 18th day of Dec.” and that in the second case charging an offense committed “on or about the 17th day of December” the allegations of the complaint in each case are identical. Immediately upon the filing of the complaint in the second case (No. 7582) the defendant' Porter was arrested, arraigned and released on bail to appear and plead on January 5, 1951.
January 5, 1951, the defendants, appearing by counsel, served and filed an instrument in writing designated “Special Plea in Bar of Defendants” wherein they averred that the justice of the peace was and is without jurisdiction or right to entertain the complaint in the second case (No. 7582) contending that, under the provisions of R. C. M. 1947, sec. 94-9507, the state’s voluntary dismissal of the complaint in the first case (No. 7576) is a bar to the prosecution of defendants for the offense of which they are accused by the complaint in the second case and praying for an order dismissing such second case, — releasing defendants from custody and exonerating their bail.
January 13, 1951, the county attorney filed in the second case an instrument in writing designated “Answer to Special Plea in Bar of Defendants” and upon the same date the defendants filed a written motion to strike therefrom all of the seventh paragraph thereof “as legally insufficient as an answer or defense to the said Defendants’ special plea in Bar” and moved to dismiss the action in accordance with the prayer of defendants’ so-called special plea in bar.
January 19, 1951, the county attorney served and filed an instrument in writing designated “Amended Answer to Special Plea in Bar of Defendants” in the seventh paragraph whereof is set forth the facts, circumstances and reasons for the voluntary dismissal of the complaint in case No. 7576 and for the simultaneous filing of the complaint in case No. 7582, said paragraph of said so-called amended answer concluding: “and consequently the dismissal of the Complaint under case number 7576 is not a bar to the prosecution of the offense as set forth in case number 7582.”
January 22, 1951, the defendants jointly and severally served and filed a second written motion to strike from the county at tomey’s so-called amended answer the above last quoted portions of the seventh paragraph thereof, as being redundant and irrelevant matter, and also moved for the dismissal of the action in accordance with the prayer of the so-called special plea in bar.
We find no authority in the law of this jurisdiction for such procedure in a criminal case .brought and prosecuted in a justice’s court. Here both the defendants and the state departed from the prescribed practice and this we may not condone. In a criminal prosecution the only pleading on the part of the defendant is either a demurrer or a plea. R. C. M. 1947, sec. 94-6701, To a criminal complaint in a justice’s court the defendant may make the same plea as upon indictment or information. “His plea mtist be oral, and entered in the minutes.” R. C. M. 1947, sec. 94-100-4. (Emphasis supplied.) The four kinds of pleas authorized by the Codes are enumerated in R. C. M. 1947, sec. 94-6801, while R. C. M. 1947, sec. 94-6802 prescribes the form for each plea and provides that every plea “must be oral”.
February 19, 1951, the justice of the peace denied defendants’ above motions of January 13th and 22nd, — overruled the so-called “Special Plea in Bar of Defendants” and ordered defendants to make their pleas to the complaint.
Case -No. 25689. February 26, 1951, the defendants commenced, in the district court of Yellowstone county, cause No. 25689, wherein they petitioned for and, by order that day made by the Honorable Ben Harwood, a judge thereof, were granted a writ of certiorari directed to Emil Borberg, as justice of the peace of Billings township in said county, requiring such justice of the peace to certify and return to said district court a .complete transcript of the record and proceedings had before him in criminal cases Nos. 7576 and 7582, the district court proceeding being entitled “State of Montana, ex rel. The Elmo Club, a corporation and Robert J. Porter, Relators v. Emil Borberg, as Justice of the Peace for Billings Township, Yellowstone County, State of Montana, Respondent.”
March 3, 1951, the justice of the peace made his return to the writ and filed in the district court a certified copy of the proceedings had and done in criminal eases Nos. 7576 and 7582.
March 8, 1951, the county attorney, appearing on behalf of the justice of the peace, interposed a motion to quash the writ so issued out of the district court on the grounds that certiorari is not the proper remedy; that the affidavit initiating the proceeding fails to state facts sufficient to authorize the issuance of the writ; that such affidavit fails to state facts sufficient to show that adequate relief could not be obtained in the justice, of the peace court; that such affidavit fails to state any facts sufficient to show that adequate relief would not be afforded by appeal and that it fails to state any facts showing that there is no plain, speedy, or adequate remedy other than by certiorari.
April 9, 1951, the justice of the peace was served with defendants’ notice of a motion to strike from the files the motion to quash the writ or, in the alternative, to dismiss such motion to quash. At this stage of the proceeding the Honorable F. V. Watts, district judge of the fourteenth judicial district of the state of Montana, was called to preside in the ease and on April 17, 1951, he assumed jurisdiction and ordered the motions and other matters then pending continued to a date to be subsequently fixed and thereafter set July 19, 1951, for hearing the matters at which time, pursuant to stipulation of counsel, same were submitted to the court on briefs.
October 3, 1951, Judge Watts denied the defendant’s motion to strike the motion to quash the writ, — denied the motion of the justice of the peace to quash the writ and rendered a formal judgment wherein he specifically found, inter alia, “that the Special Plea in Bar * * * should have been sustained and said action dismissed by the Justice of the Peace * # * for the reason that a prosecution under the complaint therein is barred under the provisions of Title 94, section 9507, Revised Codes of Montana * * * and that the * * * Justice of the Peace * * * has exceeded his jurisdiction in said matter, and cannot, for lack of jurisdiction render a valid judgment in said cause No. 7582.”
After reciting the foregoing and other findings the judgment then ordered, adjudged and decreed:
1. That the action of the justice of the peace in overruling and denying defendants’ special plea in bar in action No. 7582 “is contrary to law”;
2. That “said Special Plea in Bar is a good and sufficient legal bar to the further prosecution of said action”;
3. That the order made by the justice of the peace, in case No. 7582, “requiring the defendants therein * * * be held and to be and appear in said Justice of the Peace Court to answer the charges set forth in the complaint therein, should be and hereby is annulled and set aside”;
4. That “the said Emil Borberg, as Justice of the Peace in and for Billings Township * * * is without jurisdiction to further proceed in said cause No. 7582”;
5. “And that said action be dismissed and the defendants discharged and their bail released.”
Case No. 9137. October 29-, 1951, the relator, Emil Borberg, as justice of the peace of Billings township commenced the instant proceeding in this court against the respondent district court and the judge therein presiding, being cause No. 9137 herein.
The complaint in ease No. 7576, as well as that in case No. 7582, charges that the defendants, “on or about” a designated day in December 1950, sold whisky upon their premises licensed to sell liquor at retail, “after the hour of two o’clock A. M. and before the hour of one o’clock P. M., to-wit at 3:20 o’clock A. M. of said day.”
The law of this state makes it a misdemeanor to sell liquor on such licensed premises “to-wit: at 3 :20 o’clock” in the morning of any day of any month of the year. R. C. M. 1947, sees. 4-414 and 4-439.
The precise day of the commission of the crime of selling liquor at a prohibited and unlawful hour in the morning is not of the essence of the offense and the use of the phrase “on or about” a certain day of a certain month in the year 1950 in charging such offense simply indicates that the time alleged was stated with approximate accuracy. State v. Terry, 77 Mont. 297, 250 Pac. 612; State v. Thompson, 10 Mont. 549, 27 Pac. 349. Compare: Thompson v. United States, 3 Cir., 283 F. 895, 897; Benson v. State, 128 Tex. Cr. R. 72, 79 S. W. (2d) 122, 123; State v. Wolpers, 121 Wash. 193, 208 Pac. 1094, 1095; State v. Pace, 187 Or. 498, 212 Pac. (2d) 755, 758; State v. Guillot, 200 La. 935, 9 So. (2d) 235, 239. The county attorney also lays the time under a videlicet, a peculiar office whereof, in pleading, is to mark that the party does not undertake to prove the precise circumstances of time alleged under a videlicet strictly as alleged and he is not held to such proof. 2 Abbott’s Law Dictionary, p. 635. Videlicet is thus used to avoid a variance and escape a positive averment which otherwise might be required to be strictly proved it being deemed sufficient if the evidence establishes a violation between the hours of two a. m. and eight a. m., on a day other than Sunday on which latter day sales of liquor are prohibited from two a. m. to one p. m. sec. 4-414.
Perfection is not required in the pleading of a criminal cause in the justice’s court any more than in a district court. Perfection in pleading is seldom attained in either forum. Amendments to eliminate clerical errors or in the furtherance of justice are common. Ordinarily the ends of justice are best observed by disposing of criminal causes in a justice’s court upon their substantial merits rather than with too strict regard to technical rules of procedure. It is quite common, in the exercise of a sound discretion, to allow a criminal complaint to be amended in conformity with the spirit of the law and in such a manner as will subserve rather than impede the ends of justice by preserving to the party claiming in good faith to have his substantial defense to the charge an opportunity to present it.
In the first ease the defendants made a plea of not guilty thereby putting in issue every material allegation of the complaint but before any trial was had or even commenced the county attorney discovered that the particular day on which lie had accused defendants of making an illegal sale was Sunday the 17th rather than the 18th of December 1950, whereupon to further particularize the time of the alleged sale and to fully inform the defendants and the court well in advance of trial he made the motion to dismiss his first complaint and upon the granting of such motion immediately commenced ease No. 7582 by filing his second complaint charging an unlawful sale made “on or about the 17th day of December, A. D., 1950.”
The complaint in the first case required neither amendment nor dismissal. It was good as it stood.
The complaint in the second case is equally good. The law disregards trifles, see. 49-125, and in a criminal complaint, information or indictment it does not require particularity to the point of absurdity. State v. Gondeiro, 82 Mont. 530, 535, 268 Pac. 507; State v. Terry, supra. Under the complaint in either case proof of an illegal sale on either the 17th or 18th day of the month designated would have been admissible without effecting a fatal variance. Defendants were in no wise or manner prejudiced by the state’s voluntary dismissal of the first case nor by the filing of the complaint in the second case which only supplied defendants with more particular information as to the time at which the state expects to prove the unlawful sale was made.
In the first case defendants complied with the requirements prescribed by sections 94-100-4, 94-6701, 94-6801 and 94-6803, R. C. M. 1947, but in the second ease they made no such compliance. Instead of orally making one of the four pleas prescribed by section 94-6801 they filed an elaborate written instrument termed a special plea in bar which, with the exhibits attached, comprises seven typewritten pages wherein they contend that by reason of its dismissal of the complaint in the first case the justice’s court is without jurisdiction or right to entertain and the state and county attorney are barred from prosecuting the second case.
To support such contentions defendants cite and rely upon R. C. M. 1947, sec. 94-9507, which provides: “An order for the dismissal of an action, as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but it is not a bar if the offense is a felony.” (Emphasis supplied.)
The phrase “as provided in this chapter” means as provided. in Chapter 95 of Title 94, being sections 94-9501 to 94-9507, inclusive, of the Revised Codes of 1947.
The only section of Chapter 95 of Title 94 of the Codes which provides for an order for the dismissal of an action is the first section of the Chapter which reads:
“94-9501. (12223) When action may be dismissed. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:
“1. Where a person has been held to answer for a public offense, if an information is not filed against him, within thirty days thereafter, or such time has not been extended by the court or judge.
“2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six months after the finding of the indictment, or filing of the information.”
In the criminal cases here involved no information was filed against defendants nor have they been held to answer for any public offense requiring the filing of an information or indictment under Article III, section 8, of the Constitution or under R. C. M. 1947, sections 94-6201, 94-6206 and 94-6332. The first complaint was filed within five days after the offense was alleged to have been committed while the second complaint was filed within nine days after the offense therein was alleged to have been committed. Fifty-four days after filing the second complaint the justice of the peace overruled defendants’ so-called special plea in bar and ordered defendants to make their plea to the complaint. One week thereafter, on the application and affidavit of defendants, the respondent district court issued and caused to be served upon the relator as justice of the peace, a writ of certiorari commanding and requiring him and his court, inter alia, “to desist from further proceedings in action No. 7582” and upon such, application of defendants and by reason of the order and command of the respondent district court no further proceedings have been had or done in said cause by relator or in the justice’s court over which he presides-except as directed and commanded by the respondent district court. The postponement of entering pleas and the postponement of the trial of case No. 7582 has been had and done upon defendants’ application to and the consequent interference by the respondent district court and of such delay and postponement defendants may not now nor hereafter be heard to complain. Clearly the provisions of Chapter 95 of the Revised Codes of Montana of 1947, being sections 94-9501 to 94-9507, both inclusive, have no application whatever herein.
Sections 94-9501 and 94-9507, supra, are substantially the same as sections 1382 and 1387 of the Penal Code of California, construed in People v. Hrjak, 85 Cal. App. 301, 259 Pac. 353, 354. In the Hrjak case, a criminal complaint was filed in the justice’s court charging the defendant with a misdemeanor in unlawfully manufacturing intoxicating liquors alleged to have been committed February 9, 1927. Defendant was arrested and upon a preliminary hearing before the justice of the peace, the complaint was ordered dismissed and the defendant discharged because of the insufficiency of the evidence. A week later a second complaint was filed in the justice’s court charging del fendant with unlawfully manufacturing intoxicating liquor alleged to have been committed February 10, 1927, -being one day later than was averred in the first complaint. At his trial under the accusation of the second complaint, defendant claimed a former jeopardy under the provisions of section 1387 but the defense was disallowed and he was convicted. On his appeal he contended that under the provisions of section 1387 he could not be further prosecuted for the offense charged. In affirming the judgment of conviction the appellate court quoted section 1387 of the Penal Code of California, being the same as R. C. M. 1947, sec. 94-9507, and said: ‘ ‘ The language is too plain to be mistaken. It limits the.application of the section to those orders for dismissal provided in chapter 8, tit. 10, of the Penal Code. Such orders are those enumerated in section 1382 of that code =» These are the only orders for dismissal to which section 1387 applies.” The Hrjak case, supra, is cited on this point and followed in People v. Grunhof, 115 Cal. App. (2d) Supp. 771, 299 Pac. 519, 520; People v. Zadro, 20 Cal. App. (2d) 320, 66 Pac. (2d) 1204, 1206; White v. Brinkman, 23 Cal. App. (2d) 307, 73 Pac. (2d) 254, 259. Compare: State v. McGowan, 113 Mont. 591, 131 Pac. (2d) 262.
In Parks v. Superior County, Cal. App. 1951, 236 Pac. (2d) 874, 884, it is said: “It seems appropriate to observe that if a magistrate erroneously dismisses a complaint, or a count of a complaint, and discharges a defendant, prosecution for the public offense involved is not necessarily at an end. The defendant, in such a case, has not yet been put in jeopardy. A second complaint, alleging the same facts, may be filed. Proceedings upon it will not abate because of the discharge upon the first complaint. Ex parte Fenton, 77 Cal. 183, 19 Pac. 267, and People v. Zadro, 20 Cal. App. (2d) 320, 66 Pac. (2d) 1204.”
So in this jurisdiction the only orders for dismissal to which R. C. M. 1947, sec. 94-9507, applies are those orders for dismissal provided in Chapter 95 of Title 94 of the Revised Codes of 1947, being such orders as are enumerated in subdivisions 1 and 2 of section 94-9501.
The provisions of sections 94-9501 and 94-9507, supra, are wholly inapplicable to the dismissal of the criminal complaint in ease No. 7576 upon the grounds and under the facts and circumstances above shown or to the filing of a new complaint in ease No. 7582 or to the prosecution of the defendants on the accusation therein made and defendants’ so-called special plea in bar, being unauthorized by law and wholly lacking in merit, the justice of the peace was acting within jurisdiction and in accordance with law in overruling the purported plea and in ordering defendants to make proper plea to the second complaint as is provided for in sections 94-100-4, 94-6801 and 94-6802, supra.
Upon a plea other than guilty, the cause would have been set for trial and tried in a manner provided for in Chapter 100 of Title 94 of the Revised Codes and should defendants then deem themselves aggrieved by the judgment entered, they may take a timely appeal to the district court, R. C. M. 1947, sec. 94-100-33, where the cause would be tried anew. R. C. M. 1947, sec. 94-100-38.
R. C. M. 1947, sec. 93-9002, sets forth the facts and circumstances which must exist before a court is authorized to grant a writ of review. Since the record before us shows (1) that in disallowing defendants’ so-called plea in bar and in ordering them to make a plea as prescribed by the Codes the justice of the peace was acting within jurisdiction; (2) that the defendants may appeal to the district court from any judgment entered against them in the justice’s court; (3) that on such appeal the cause will be tried anew in the district court and (4) that such remedies so available to defendants are plain, speedy and adequate, it is apparent that the respondent district court exceeded its jurisdiction in ordering the issuance of the writ of review and in making the orders and rendering the judgment so entered against such justice of the peace.
The jurisdiction and powers of a judge extend and are limited to those fixed by law. Beyond that he cannot act. State v. Israel, 124 Mont. 152, 220 Pac. (2d) 1003, 1013.
Sections 94-9501 and 94-9502 authorize a prescribed procedure relating to the dismissal of certain limited actions under specified conditions and the respondent district court applied such sections to an entirely different situation than is provided for thereby exceeding the jurisdiction of such tribunal. The law is as stated in Rodman v. Superior Court, 13 Cal. (2d) 262, 269, 89 Pac. (2d) 109, namely that “it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.”
In 4 Cal. Jur., Certiorari, p. 1025, in discussing section 1068 of the California Code of Civil Procedure, which, is the same as R. C. M. 1947, sec. 93-9002, it is said: “It is also clear that if the court or board acts in an unauthorized mode and thereby exceeds the bounds of its power, its action may be reviewed on certiorari.” Citing: Carpenter v. Superior Court, 75 Cal. 596, 19 Pac. 174. See also: Spreckels S. Co. v. Industrial Accident Comm., 186 Cal. 256, 199 Pac. 8.
Rehearing denied February 28, 1952.
We are sending this criminal cause back to the justice’s court for plea and for trial without further delay should the plea raise an issue. Accordingly the rulings and orders made and entered on or about the 19th day of February 1951, by the relator as justice of the peace presiding in criminal case No. 7582 are approved and made effective from date of original entry by relator, — the findings and orders of the respondent district court in case No. 25689 are annulled, — its judgment is reversed and the cause is remanded with directions to dismiss ab initio the proceedings had and done in the respondent district court against the relator, Emil Borberg, as justice of the peace and his court. It is so ordered.
ASSOCIATE JUSTICES METCALF, BOTTOMLY, FREEBOURN and ANGSTMAN concur.
|
[
11,
21,
24,
57,
-31,
-17,
-3,
6,
-50,
0,
-10,
-50,
-13,
-1,
38,
18,
-25,
-24,
13,
-76,
17,
-55,
-68,
18,
8,
0,
-18,
20,
-22,
0,
-8,
39,
-16,
-30,
64,
8,
25,
-11,
-12,
9,
10,
62,
52,
-52,
-35,
-18,
-7,
2,
21,
-19,
8,
-15,
-10,
6,
-26,
-16,
-16,
-26,
-5,
-12,
4,
33,
29,
2,
40,
-26,
5,
-22,
10,
-30,
38,
-16,
-19,
16,
-2,
6,
-19,
-43,
-2,
49,
-19,
33,
72,
15,
-10,
-55,
24,
29,
48,
-11,
24,
0,
-53,
4,
42,
-59,
-82,
30,
8,
-9,
-22,
-83,
29,
12,
11,
-22,
-79,
-28,
35,
38,
2,
9,
63,
-40,
17,
-26,
-30,
14,
21,
-35,
21,
-4,
10,
46,
-43,
13,
17,
66,
-6,
25,
-24,
-14,
4,
-30,
-33,
-11,
-10,
32,
-40,
18,
29,
-4,
44,
16,
9,
-31,
10,
44,
-72,
17,
-7,
19,
69,
34,
-37,
-11,
7,
-86,
16,
-36,
18,
-3,
-77,
-17,
13,
-7,
-8,
5,
-18,
-58,
-15,
8,
-5,
27,
49,
-54,
31,
-5,
52,
60,
-3,
-2,
39,
-12,
25,
18,
-32,
-24,
4,
16,
-1,
-14,
14,
20,
-9,
9,
-21,
13,
-16,
16,
8,
-33,
-16,
12,
-25,
-3,
4,
-24,
10,
-23,
-11,
-42,
0,
15,
16,
-43,
-4,
6,
17,
-15,
-35,
-26,
17,
22,
0,
-65,
6,
5,
-34,
-32,
11,
-1,
44,
-33,
66,
-49,
26,
33,
57,
75,
-10,
-15,
-17,
-26,
-7,
14,
-55,
-20,
-22,
-2,
12,
-63,
-19,
9,
-41,
2,
57,
-10,
19,
-7,
-4,
-10,
52,
5,
-74,
-37,
5,
-14,
27,
56,
-17,
24,
49,
17,
-7,
28,
-13,
13,
46,
54,
26,
10,
4,
60,
-14,
15,
-72,
9,
-59,
-29,
-20,
21,
-9,
-14,
26,
28,
-32,
-22,
43,
-34,
15,
28,
0,
-1,
-55,
-14,
-37,
32,
4,
-38,
6,
3,
-28,
-30,
-20,
-9,
-27,
45,
21,
-49,
28,
-1,
-4,
0,
-51,
26,
25,
49,
34,
-1,
-24,
-61,
-7,
-5,
20,
-16,
15,
-45,
-54,
8,
46,
-2,
20,
19,
-79,
29,
14,
38,
-25,
-14,
-35,
-31,
12,
1,
-4,
19,
-20,
-39,
3,
-9,
43,
13,
-24,
-34,
-17,
-13,
-46,
-21,
13,
-21,
-24,
15,
12,
-13,
-25,
-19,
28,
-24,
-82,
55,
-10,
-41,
-35,
23,
-6,
34,
-38,
-16,
-47,
-38,
2,
36,
-31,
2,
26,
8,
32,
-17,
-10,
-5,
23,
73,
38,
11,
-7,
-5,
23,
27,
44,
35,
81,
-44,
-12,
-38,
37,
-34,
-14,
36,
-29,
-21,
-6,
-9,
9,
-22,
41,
-71,
47,
-23,
15,
13,
30,
15,
-20,
54,
53,
-8,
-43,
32,
14,
8,
34,
-41,
-24,
10,
35,
-17,
-1,
73,
33,
-16,
6,
28,
-72,
-66,
-31,
66,
23,
40,
-31,
-31,
29,
51,
-28,
-35,
35,
32,
-1,
1,
-16,
59,
3,
-5,
-16,
10,
-71,
40,
40,
-14,
-20,
-38,
-26,
-38,
-23,
5,
-6,
-50,
-9,
7,
23,
30,
11,
-19,
-48,
29,
-75,
18,
-8,
-26,
41,
35,
17,
8,
-31,
16,
19,
16,
27,
47,
-54,
48,
-30,
29,
16,
-41,
-26,
49,
49,
-41,
-33,
-16,
54,
-8,
-6,
6,
-35,
-22,
0,
0,
18,
-17,
-52,
-25,
-38,
3,
-11,
31,
60,
55,
12,
-26,
64,
-9,
54,
-15,
30,
56,
5,
-6,
44,
-35,
21,
9,
-3,
-25,
-23,
37,
10,
-52,
-30,
11,
80,
1,
-16,
-25,
-24,
5,
-47,
20,
40,
-26,
-11,
48,
6,
-6,
9,
39,
-41,
-36,
32,
33,
51,
4,
-3,
7,
-10,
29,
30,
3,
8,
0,
-45,
1,
-7,
10,
1,
18,
-4,
31,
36,
45,
-2,
19,
59,
19,
28,
-22,
-3,
-4,
-27,
3,
-25,
29,
43,
19,
4,
20,
-48,
-87,
10,
13,
-18,
-43,
18,
1,
-11,
-51,
-40,
-25,
-15,
-14,
-40,
-23,
-5,
-32,
20,
35,
-10,
62,
-27,
7,
33,
-23,
-9,
-37,
-28,
5,
19,
45,
36,
-4,
25,
-5,
-7,
-34,
22,
-6,
17,
8,
24,
-4,
30,
41,
-51,
4,
27,
-8,
20,
46,
22,
24,
28,
-53,
-36,
-46,
-20,
-73,
19,
-23,
-10,
1,
-17,
37,
23,
-33,
23,
34,
19,
12,
2,
0,
5,
7,
10,
12,
32,
4,
18,
-6,
-35,
7,
6,
-19,
35,
19,
-3,
-4,
3,
-69,
-51,
-44,
-36,
-5,
-13,
-17,
-36,
-22,
-26,
23,
-5,
-23,
-36,
-24,
-40,
46,
13,
18,
-31,
33,
23,
-13,
14,
-11,
7,
-17,
32,
47,
3,
6,
-4,
64,
29,
-62,
-25,
7,
2,
-19,
17,
-8,
-3,
12,
1,
45,
13,
14,
6,
9,
-9,
-45,
0,
47,
54,
35,
-38,
25,
-62,
13,
12,
8,
23,
41,
23,
-12,
25,
-67,
8,
-4,
11,
-4,
43,
3,
12,
-1,
-10,
2,
24,
12,
15,
12,
13,
-16,
0,
-30,
30,
-6,
-41,
10,
-2,
-14,
-24,
45,
-30,
-15,
9,
46,
6,
-35,
-2,
0,
-23,
31,
-63,
44,
17,
-71,
22,
-42,
10,
1,
0,
-78,
-6,
-6,
23,
-2,
-13,
-55,
-2,
-30,
-9,
3,
10,
19,
0,
-18,
30,
-21,
22,
-47,
15,
49,
-26,
29,
-21,
-9,
0,
-4,
61,
-19,
1,
1,
5,
28,
2,
-25,
9,
28,
-5,
-50,
-25,
54,
-32,
-33,
13,
-50,
4,
-4,
65,
-32,
-18,
51,
-10,
-22,
-5,
17,
8,
10,
34,
-25,
0,
-32,
13,
-19,
-17,
-38,
-7,
-2,
7,
17,
34,
33,
28,
-2,
-35,
59,
2,
-20,
-26,
2,
-37,
9,
50,
36,
5,
34,
-36,
12,
-25,
5,
50,
42,
20,
-19,
-34,
20,
-10,
-48,
-31,
12,
0,
13,
-1,
35,
-49,
49,
2,
51,
0,
7,
-11,
67,
-26,
4,
-14,
-12,
-6,
52,
-38,
45,
13,
-29,
-50,
54,
0,
9,
45,
53,
-31,
-17,
-23,
15,
-20,
7,
-9,
52,
-45,
20,
12,
33,
5,
-21,
-15,
37,
-17,
10,
-58,
-28,
-14,
12,
114,
19,
-23,
12,
-7,
85,
-17,
58,
-50,
4,
49,
37,
-46,
-11,
-10,
12,
-23,
0,
-2,
23,
-16,
-28,
-2,
-11,
-4,
-51,
8,
12,
-34,
-44,
-37,
-54,
64,
-2,
-24,
-60,
40,
-35,
10,
-9,
-7,
23,
-15,
-68,
8,
-31,
-19,
-31,
59,
-23,
15,
-3,
-98,
11,
-22,
8
] |
MR. CHIEF JUSTICE ADAIR:
The petitioner was convicted of the crime of robbery and was sentenced to serve a term of five years in the state prison. Four days after pronouncement of sentence petitioner applied to the trial judge for a certificate of probable cause but such judge refused to issue the certificate and petitioner was delivered to the state prison where she has since been confined. Also four days after sentence was pronounced, petitioner made a motion for a new trial. This motion was denied and on the following day, June 22, 1951, petitioner served and filed her notice of appeal.
On November 26, 1951, the trial judge signed, settled and allowed petitioner’s bill of exceptions. On December 6, 1951, the transcript on appeal was filed in the office of the clerk of this court and thereafter petitioner applied here for the issuance of a certificate of probable cause.
The petitioner has a constitutional right to have her ease reviewed by the supreme court. She has taken a timely appeal and proper steps to place before this court a transcript of the entire proceeding had in the court below.
The record discloses that the question as to whether or not the judgment of conviction is to be sustained is at least debatable, and as in State v. Dahlgren, 74 Mont. 217, 235, 239 Pac. 775, 781, “the certificate of probable cause should have been issued unhesitatingly by the district court. ’ ’ See also State v. McDonald, 27 Mont. 66, 69 Pac. 323. We are issuing the certificate of probable cause forthwith and direct that the district court shall fix bail in a reasonable amount.
|
[
26,
23,
-19,
60,
2,
-21,
-12,
-48,
-37,
-18,
38,
-61,
-35,
-34,
-12,
23,
-25,
-15,
32,
-25,
9,
-8,
-23,
34,
-42,
-28,
5,
19,
7,
23,
53,
10,
-44,
-3,
36,
6,
23,
-42,
18,
70,
-38,
36,
26,
-8,
-59,
-2,
-27,
-8,
11,
-9,
-9,
-49,
0,
-10,
35,
27,
-54,
-23,
9,
38,
23,
39,
35,
0,
-12,
25,
33,
-41,
-80,
-36,
32,
-24,
-9,
-31,
0,
-18,
-4,
6,
-39,
27,
-5,
17,
44,
-31,
78,
-39,
-19,
-46,
9,
-39,
8,
38,
-17,
-32,
12,
-33,
-18,
-18,
46,
54,
-46,
-27,
-39,
-9,
13,
13,
-17,
-10,
-45,
28,
28,
9,
14,
12,
24,
-14,
-11,
-15,
-7,
-34,
38,
31,
14,
-52,
21,
32,
-12,
27,
61,
-16,
-89,
63,
69,
2,
-14,
2,
28,
22,
30,
-9,
-23,
28,
3,
-40,
14,
-3,
-6,
20,
-12,
5,
-43,
84,
-20,
30,
4,
8,
18,
-29,
-72,
-17,
9,
3,
-16,
6,
39,
-75,
-4,
-25,
22,
-35,
0,
-4,
24,
51,
29,
-41,
-5,
33,
48,
13,
-7,
30,
43,
-31,
16,
58,
-29,
6,
-12,
25,
-17,
46,
-21,
-2,
43,
-15,
1,
-7,
49,
-8,
-6,
-1,
24,
-32,
59,
-2,
-13,
-23,
37,
9,
-56,
-38,
-7,
28,
-12,
14,
48,
-10,
25,
36,
-20,
-42,
40,
-16,
40,
0,
24,
22,
15,
7,
25,
35,
6,
-32,
27,
35,
67,
-10,
69,
52,
-26,
-23,
47,
0,
21,
-2,
-1,
-12,
-6,
-29,
13,
-1,
-22,
-11,
-26,
-20,
25,
8,
1,
-12,
25,
-8,
25,
7,
-57,
27,
20,
9,
-49,
15,
54,
-41,
1,
-66,
26,
33,
-9,
-3,
4,
35,
23,
51,
35,
13,
-23,
-55,
1,
5,
61,
-6,
28,
-30,
-9,
-28,
29,
-47,
-9,
15,
-16,
49,
7,
27,
21,
-36,
-17,
-3,
-6,
-13,
-28,
-14,
19,
67,
37,
19,
-5,
30,
-14,
-28,
-33,
-2,
-55,
22,
-68,
-11,
78,
26,
-22,
18,
-12,
-23,
-21,
-9,
2,
45,
-2,
37,
-46,
54,
41,
22,
18,
-13,
-4,
12,
-22,
-2,
-20,
-19,
-35,
-8,
9,
20,
0,
-51,
-9,
-3,
-42,
-15,
24,
13,
19,
-8,
33,
13,
22,
-61,
-5,
-38,
25,
2,
41,
-74,
-7,
-53,
-10,
-22,
29,
-1,
-11,
-33,
14,
-22,
-20,
-4,
-11,
32,
57,
-44,
23,
-43,
3,
15,
-10,
-80,
-3,
-54,
-12,
17,
14,
-21,
-44,
16,
63,
18,
-18,
-13,
-66,
33,
-58,
55,
-17,
18,
36,
76,
0,
-32,
-7,
20,
-25,
-46,
-22,
-26,
27,
44,
-55,
-10,
21,
6,
-13,
-35,
-2,
32,
-14,
32,
5,
34,
-23,
-19,
37,
-26,
-21,
12,
-44,
33,
2,
45,
8,
-60,
0,
-2,
17,
-12,
13,
-56,
1,
55,
27,
17,
16,
-41,
-15,
-42,
-35,
60,
5,
-34,
-84,
-52,
8,
6,
75,
-22,
15,
-61,
12,
1,
37,
25,
0,
10,
-36,
11,
1,
8,
-7,
1,
33,
-20,
-1,
-6,
44,
-42,
-54,
54,
-57,
21,
-56,
-47,
13,
-10,
-11,
-14,
6,
20,
12,
21,
47,
14,
70,
-12,
9,
8,
-13,
-17,
32,
5,
-31,
-22,
1,
12,
27,
-3,
-9,
1,
0,
12,
11,
0,
-32,
18,
-20,
-24,
-12,
21,
23,
49,
4,
2,
-42,
-59,
-25,
21,
-34,
-11,
-21,
28,
0,
-31,
-10,
24,
41,
32,
29,
2,
-10,
-59,
-7,
26,
-43,
-16,
-7,
-5,
9,
9,
-38,
18,
-2,
19,
5,
-25,
33,
-31,
-26,
2,
-7,
-33,
-29,
-30,
39,
-10,
63,
19,
-48,
-17,
-57,
7,
5,
-11,
-1,
4,
-87,
33,
27,
-39,
-32,
-1,
-62,
-33,
6,
39,
8,
-2,
26,
37,
72,
-17,
48,
-46,
11,
-32,
-4,
-43,
-46,
26,
-13,
-43,
-2,
12,
-74,
15,
13,
-40,
15,
0,
-25,
-36,
-81,
-70,
-7,
5,
26,
0,
44,
-25,
-61,
15,
-40,
54,
-15,
-31,
22,
31,
24,
27,
-3,
1,
44,
-15,
4,
-18,
12,
-5,
-43,
-40,
55,
14,
-12,
-51,
41,
-14,
-46,
25,
-41,
13,
7,
-2,
38,
-8,
-3,
47,
24,
-42,
-6,
-17,
-12,
-27,
1,
-44,
29,
-60,
51,
-13,
-21,
-26,
26,
-17,
-67,
23,
-4,
35,
-6,
5,
37,
85,
27,
28,
73,
54,
-16,
-12,
44,
-22,
-22,
-21,
-45,
8,
-14,
-78,
69,
-37,
-23,
16,
-18,
-43,
-21,
-63,
-7,
-49,
3,
-5,
-36,
-41,
-6,
58,
-21,
48,
45,
-26,
75,
-8,
51,
27,
-47,
17,
-22,
-8,
20,
-39,
49,
22,
-41,
28,
14,
-49,
1,
15,
-2,
-87,
15,
9,
55,
-23,
-9,
9,
-31,
54,
17,
-40,
4,
5,
40,
37,
-1,
-36,
-18,
55,
20,
-16,
11,
62,
1,
-6,
2,
0,
-40,
10,
46,
32,
82,
13,
-26,
50,
-80,
-35,
66,
-16,
-41,
-16,
-6,
6,
-34,
41,
17,
25,
-52,
44,
-36,
-19,
-71,
78,
7,
-8,
56,
-7,
24,
32,
-30,
48,
-46,
1,
-5,
5,
-51,
51,
-15,
-6,
30,
-2,
29,
-45,
-14,
-37,
-11,
20,
1,
28,
-5,
28,
-17,
6,
6,
-5,
33,
19,
-3,
4,
5,
28,
-8,
0,
5,
21,
-13,
12,
-4,
-52,
-17,
-42,
29,
-29,
3,
62,
-12,
47,
-33,
-25,
50,
20,
9,
-41,
8,
37,
13,
-70,
-25,
-8,
38,
-16,
-22,
17,
-46,
12,
15,
37,
-28,
38,
11,
-16,
50,
-12,
20,
-41,
71,
18,
22,
-38,
-47,
31,
-15,
1,
-47,
88,
-7,
-3,
-56,
42,
-23,
-3,
-10,
-10,
28,
0,
-24,
52,
45,
9,
-4,
-15,
34,
-12,
-1,
-20,
22,
-25,
37,
-10,
-42,
-15,
25,
-53,
3,
9,
4,
4,
47,
-4,
-10,
-4,
-22,
12,
-49,
10,
-25,
13,
-17,
3,
4,
-70,
15,
-33,
-53,
-23,
-25,
-9,
-30,
38,
21,
-12,
-7,
-41,
29,
-26,
4,
31,
9,
20,
48,
22,
41,
12,
-51,
30,
4,
6,
13,
32,
-2,
2,
9,
23,
-26,
13,
36,
7,
-17,
15,
6,
-20,
4,
11,
7,
-14,
-5,
-15,
-18,
-40,
46,
-8,
-55,
5,
0,
10,
25,
32,
22,
-1,
38,
-8,
-73,
30,
19,
1,
4,
8,
8,
-65,
-40,
-13,
-34,
37,
-13,
6,
22,
-3,
-38,
-54,
-20,
4,
-5,
21,
16,
36,
16,
10
] |
Per Curiam.
The relator, Clyde Clark an inmate of the State Prison has lodged with the clerk of this court a petition for the issuance of a writ to require his release on parole, representing that the Montana State Board of Pardons acting on an opinion rendered by the attorney general has refused to grant relator’s application for such parole.
This court is not the proper tribunal to grant the relief sought and it declines to assume jurisdiction in the matter. Accordingly the writ is denied and the proceeding ordered dismissed.
|
[
55,
-31,
-34,
45,
1,
-50,
33,
5,
-77,
51,
-15,
-8,
0,
-15,
3,
31,
-13,
51,
15,
-16,
6,
26,
-29,
44,
7,
-37,
30,
39,
-16,
44,
-6,
-11,
-36,
-41,
3,
-20,
-35,
-33,
40,
-15,
-9,
-7,
9,
40,
-49,
8,
-31,
46,
-20,
-48,
-37,
14,
-9,
45,
8,
29,
12,
-67,
-29,
-38,
-25,
4,
8,
24,
25,
-12,
-7,
14,
14,
-9,
13,
22,
-3,
-6,
2,
4,
-11,
-47,
42,
56,
48,
43,
-38,
18,
0,
-1,
-43,
-23,
36,
-15,
-30,
-8,
-71,
15,
-43,
-16,
-23,
-30,
27,
-17,
-29,
37,
4,
-25,
3,
-89,
-17,
12,
53,
72,
-17,
20,
-29,
-12,
-15,
41,
-63,
-13,
22,
1,
-44,
-55,
-24,
34,
16,
-34,
7,
16,
21,
20,
-13,
-8,
63,
-9,
-39,
14,
-13,
48,
-19,
-18,
2,
-37,
79,
0,
4,
-10,
43,
6,
0,
32,
-14,
48,
16,
92,
0,
45,
32,
-2,
-35,
29,
20,
7,
-48,
28,
62,
44,
-45,
-13,
10,
-66,
-27,
55,
-10,
96,
-9,
4,
-19,
49,
77,
14,
-30,
26,
38,
-48,
18,
-8,
61,
-14,
-49,
-1,
-59,
2,
66,
14,
21,
-4,
26,
-18,
0,
41,
-58,
61,
-47,
97,
17,
-18,
24,
-38,
47,
-27,
-18,
-1,
15,
-39,
43,
-52,
-10,
46,
13,
25,
-7,
40,
16,
36,
0,
-27,
32,
16,
-53,
10,
15,
8,
9,
-30,
59,
14,
50,
5,
31,
20,
-23,
4,
13,
-3,
29,
-64,
-48,
12,
-39,
-8,
0,
6,
31,
-1,
-75,
-28,
44,
-2,
-40,
-25,
36,
-49,
7,
-19,
-8,
8,
1,
-15,
58,
-6,
36,
6,
8,
-14,
1,
-7,
33,
-7,
48,
-1,
18,
-12,
-24,
9,
-20,
-26,
-53,
-71,
-28,
-34,
16,
-17,
41,
-26,
-4,
35,
24,
-10,
-20,
-12,
-5,
-2,
-20,
0,
-16,
-16,
14,
7,
37,
-37,
21,
6,
-20,
27,
1,
-7,
-25,
-14,
10,
-49,
-22,
64,
-7,
-57,
7,
8,
-10,
58,
10,
1,
0,
-28,
-87,
24,
9,
62,
37,
17,
-47,
-1,
13,
18,
-24,
39,
-37,
-7,
23,
37,
6,
44,
8,
-22,
19,
-19,
-10,
8,
-50,
-59,
-49,
-14,
31,
-6,
-33,
-16,
32,
1,
11,
14,
58,
-1,
30,
-10,
46,
-37,
-2,
3,
7,
8,
-10,
-67,
-73,
-23,
30,
30,
24,
34,
-1,
-17,
27,
-25,
-20,
-46,
-65,
-48,
-21,
30,
4,
35,
40,
-2,
15,
15,
-4,
40,
4,
-40,
-3,
32,
-48,
-29,
-6,
18,
-37,
46,
7,
-9,
-2,
-32,
10,
-39,
-28,
-32,
27,
-40,
-26,
31,
2,
-5,
-29,
25,
42,
27,
-29,
49,
1,
-7,
-55,
-5,
-2,
-3,
51,
-31,
28,
-42,
26,
-40,
-24,
-9,
-24,
26,
-44,
34,
-77,
-53,
-25,
72,
-8,
77,
-23,
-22,
-4,
0,
-11,
6,
37,
-19,
36,
-8,
24,
24,
-56,
31,
-28,
20,
-34,
6,
-35,
-37,
-16,
26,
-44,
2,
1,
7,
27,
41,
53,
-22,
9,
27,
-35,
2,
37,
16,
-13,
-8,
-23,
26,
12,
-11,
6,
5,
-17,
5,
33,
1,
-23,
17,
-67,
11,
13,
9,
17,
-6,
-8,
59,
9,
-48,
-6,
24,
15,
46,
17,
-72,
-28,
-9,
-77,
-25,
18,
30,
-44,
-50,
-25,
-29,
-16,
23,
26,
27,
45,
31,
20,
-9,
-6,
14,
8,
60,
2,
84,
0,
-21,
-5,
36,
24,
-19,
15,
-38,
14,
-55,
22,
12,
31,
-7,
-38,
0,
-73,
23,
-56,
13,
19,
27,
0,
21,
-16,
-18,
21,
33,
-11,
-29,
23,
31,
16,
0,
-36,
-63,
-18,
-65,
-5,
-30,
-26,
13,
-85,
-22,
-4,
-14,
-46,
18,
-49,
4,
5,
31,
-14,
43,
54,
36,
31,
5,
42,
-46,
7,
24,
9,
24,
-55,
39,
-61,
57,
27,
-23,
-7,
-4,
50,
-12,
22,
-33,
-84,
-62,
-35,
-102,
15,
26,
-36,
58,
-2,
-16,
-32,
4,
-75,
39,
-24,
-1,
0,
70,
-24,
-39,
28,
-9,
63,
20,
33,
5,
43,
47,
-10,
-10,
14,
-31,
-7,
28,
63,
15,
-38,
32,
-68,
2,
-17,
41,
24,
13,
-16,
49,
20,
3,
-24,
-22,
-5,
-16,
-33,
-46,
-20,
6,
-5,
13,
26,
0,
59,
23,
26,
24,
-17,
69,
-5,
20,
16,
60,
42,
-30,
-26,
10,
-28,
40,
1,
-50,
-10,
38,
-20,
-65,
-59,
-47,
-39,
-21,
-15,
7,
12,
24,
16,
-55,
7,
-23,
-31,
-40,
-31,
-55,
-21,
37,
34,
-35,
-20,
1,
21,
-14,
51,
-17,
43,
-31,
-13,
1,
-60,
16,
38,
-31,
-15,
19,
-38,
-11,
-3,
-16,
12,
1,
-27,
-2,
51,
1,
-60,
62,
-18,
5,
16,
-62,
26,
34,
34,
-6,
-18,
13,
-56,
-37,
-30,
-41,
35,
32,
37,
-11,
2,
-50,
5,
-2,
1,
70,
47,
-9,
-18,
10,
-74,
21,
1,
-16,
-44,
-31,
-37,
-38,
1,
20,
-5,
55,
13,
3,
25,
5,
-37,
27,
-6,
-33,
-17,
22,
27,
-27,
-8,
34,
-10,
79,
0,
-3,
-41,
33,
33,
-27,
9,
28,
6,
-71,
19,
-21,
45,
24,
42,
14,
14,
24,
-6,
38,
-7,
36,
46,
22,
-7,
3,
39,
16,
-7,
-40,
10,
-21,
42,
-49,
30,
-5,
23,
-52,
-5,
14,
47,
-48,
-73,
95,
-14,
6,
-2,
-53,
26,
30,
-12,
26,
7,
-74,
11,
-28,
32,
-55,
-1,
35,
-10,
-44,
36,
51,
-5,
17,
43,
49,
26,
-28,
43,
-2,
22,
22,
10,
-17,
-6,
-61,
28,
5,
-25,
-20,
-73,
9,
18,
-28,
-10,
-63,
-24,
-1,
10,
-4,
0,
26,
46,
-29,
-25,
21,
104,
29,
-26,
22,
-44,
-18,
10,
-37,
-64,
60,
15,
-14,
-30,
69,
16,
26,
12,
-26,
2,
22,
-36,
-11,
33,
-18,
-44,
-56,
-14,
-4,
43,
44,
-32,
-20,
-26,
-2,
21,
-7,
25,
68,
6,
-43,
-24,
14,
24,
-20,
-3,
-19,
-21,
-9,
23,
67,
-1,
-20,
-26,
0,
-83,
52,
-40,
24,
-22,
12,
11,
-2,
-27,
-14,
0,
36,
-21,
27,
-40,
-22,
-18,
22,
-23,
-13,
-25,
25,
-50,
-26,
19,
16,
-18,
-21,
31,
18,
-26,
18,
91,
46,
-15,
20,
-42,
-2,
11,
-6,
-43,
-5,
46,
0,
-34,
-21,
31,
-23,
20,
-13,
41,
-31,
30,
-3,
30,
-9,
31,
53,
-40,
-36,
10,
-41
] |
MR. JUSTICE BOTTOMLY:
Original proceeding. By information filed September 12, 1950, in the state district court of Lake county, Montana, the relator, James Hugh Irvine, an Indian ward of the federal government, was charged with the crime of burglary of a grocery store located in the city of Ronan, in Lake county, Montana.
On the day the information was filed the relator was arraigned without the benefit of counsel, waived the statutory time to plead, and entered a plea of guilty.
On September 19, 1950, the state district court sentenced relator to ten year’s imprisonment in the state prison where, on the following day, he was delivered and where he has since .been confined serving the sentence so imposed.
On July 13, 1951, the relator, in forma pauperis and in propria persona petitioned this court for relief, asserting that the state district court was wholly lacking in jurisdiction to enter the judgment of conviction and seeking to have such judgment and sentence vacated on the grounds that the relator is an Indian; that the store which he was charged to have burglarized is situate within the Flathead Indian reservation in Montana; that by reason thereof the state court was and is wholly lacking in jurisdiction to try or sentence him for the offense charged and contending that the exclusive jurisdiction of such crime when committed by an Indian in Indian Country is in the United States government.
On July 18, 1951, this court, after considering relator’s petition ordered the proceeding transferred to the state district court wherein the information was filed and the judgment of conviction entered. See State ex rel. Irvine v. District Court of, etc., Lake County, Mont., 235 Pac. (2d) 662.
Following the transfer a hearing was had on August 7, 1951, before the district court on relator’s petition. It was and is conceded by both the relator and the state that relator is an enrolled and allotted Indian and a member of the Flathead Indian tribe; that tbe city of Ronan, in Lake county, Montana, and the store which relator is accused of having burglarized are within the exterior boundaries of the Flathead Indian reservation and that by appropriate instrument the United States government has ceded all right, title and interest in and to the property upon which the store building described in the information stands.
The only question there and here presented is one of jurisdiction.
October 11, 1951, the district court rendered an opinion and made an order disallowing relator’s petition and denying him all relief. Timely written exceptions were served and filed. Thereafter, on October 23, 1951, on motion of the county attorney the trial court ordered relator’s petition dismissed.
November 2, 1951, relator instituted the instant proceeding in this court seeking a writ against the respondent district court and on November 7, 1951, the writ issued returnable on a day certain on which day the matter was heard, argued and submitted.
The state contends that the state district court had jurisdiction of the offense and to impose the judgment rendered for the reason that the fee to the particular piece of land on which the alleged offense was committed had been alienated by the United States government although being within the limits of the Flathead Indian reservation.
Relator contends that the state courts are without jurisdiction of this offense, towit burglary, alleged to have been committed by this enrolled member of the Flathead Indian tribe who had been allotted lands therein, within the limits of the Flathead Indian reservation which Indian and his allotment is under the exclusive jurisdiction of the United States and with its Indian superintendent in charge of and supervising the Indian and the Indian affairs of and on said reservation; that the land on which the alleged offense was committed was conceded to be within the exterior boundaries of the Flathead Indian reservation.
Since the question of jurisdiction of the state trial court involves human liberties, as well as an asserted conflict between state and federal jurisdiction over crimes committed by such an Indian within the limits of a legally constituted, supervised, Indian reservation which lies within this state, we deem it appropriate to re-examine this question.
The question of jurisdiction should be inquired into by the court at the earliest inception on its own initiative to ascertain whether that particular court has jurisdiction of that class of offense. In re Coy, 127 U. S. 731, 758, 8 S. Ct. 1263, 32 L. Ed. 274; Barnes v. Hunter, 10 Cir., 188 F. (2d) 86, 89; Tooisgah v. United States, 10 Cir., 186 F. (2d) 93, 96.
It should be kept in mind that all congressional legislation relative to Indians and Indian affairs has been initiated and enacted for the benefit of the Indian. As was stated by the supreme court, “According to a familiar rule, legislation affecting the Indians is to be construed in their interest, and a purpose to make a radical departure is not lightly to be inferred.” United States v. Nice, 241 U. S. 591, 599, 600, 36 S. Ct. 696, 698, 60 L. Ed. 1192.
“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U. S. 786, 65 S. Ct. 989, 991, 89 L. Ed. 1367. Historically and consistently the federal government has always defined the legal status of the Indian and the 'relation which has existed between the government and the Indian as that of “guardian and ward” or “wards of the nation”. United States v. Thomas, 151 U. S. 577, 14 S. Ct. 426, 429, 38 L. Ed. 276; State of Oregon v. Hitchcock, 202 U. S. 60, 26 S. Ct. 568, 50 L. Ed. 935; Ex parte Webb, 225 U. S. 663, 32 S. Ct. 769, 56 L. Ed. 1248; La Motte v. United States, 254 U. S. 570, 41 S. Ct. 204, 65 L. Ed. 410; United States v. Candelaria, 271 U. S. 432, 46 S. Ct. 561, 70 L. Ed. 1023; British-American Oil Producing Co. v. Board of Equalization, 299 U. S. 159, 57 S. Ct. 132, 81 L. Ed. 95.
It should be noted that the Flathead Indian reservation was created by Hell Gate Treaty of 1855, 12 Stat. 975, between the Indian tribes called the Flathead Nation, and the federal government, and that the treaty with the Indians was not a grant of rights to the Indians bnt a grant of rights from the Indians with a reservation remaining to them. It is understood that the Flathead Indian reservation has been set apart .by and under the superintendence of the federal government.
Also it should be kept in mind that we are dealing here as in the reported case of State v. Pepion, Mont., 230 Pac. (2d) 961, with the Acts of Congress known as the “Ten Major Crimes Act.” These ten major crimes are enumerated in Title 18, secs. 1153 and 3242, U. S. C. A., and it also is noted that we are dealing only with offenses included therein which are committed by an Indian, a ward of the nation, enrolled in a tribe, the offense being charged as committed within the limits of an organized, government-supervised Indian reservation. The effect of these laws is confined to such offenses committed by an Indian within the limits of such a reservation. Exclusive jurisdiction over the Indian for this purpose has always been claimed and asserted by the general government, on the ground that the Indian is a ward thereof, and dependent thereon, and until fully emancipated and discharged from that condition, Title 25, sec. 349, U. S. C. A., the federal government continues to assert its exclusive jurisdiction to punish its ward for the committing of the enumerated offenses.
It seems to us that the attorney general and the court below have placed too much emphasis on the ownership of land, and have not given due weight to the fact that the jurisdiction of the federal government over the Indian and tribes rests, not upon the ownership of and sovereignty of certain tracts of land, but upon the fact that, as wards of the general government, they are the subjects of federal authority within the state when the mentioned offense is committed as herein stipulated. See Rice v. Olson, supra, 324 U. S. 786, at pages 790, 791, 65 S. Ct. 989.
“When we speak of the right to govern certain lands, we not only mean the right to do some thing with the land itself, bnt to legislate for and control the people upon said lands * * *. When we say congress has the right to legislate for a place within its exclusive jurisdiction, we mean for the people who are there, as well as concerning the land itself.” Emphasis supplied. United States v. Partello, C. C., 48 F. 670, 676; United States v. Kagama, 118 U. S. 375, 6 S. Ct. 1109, 30 L. Ed., 228; State v. Rufus, 205 Wis. 317, 237 N. W. 67; State v. Campbell, 53 Minn. 354, 55 N. W. 553, 21 L. R. A. 169; State v. Columbia George, 39 Or. 127, 65 Pac. 604.
In United States v. Thomas, supra, the defendant, an Indian of the Chippewa tribe, was indicted, tried and convicted of murder in the federal district court — the offense was committed on section 16, a school section ceded to the state under its Enabling Act, embraced within the reservation. Defendant’s counsel moved to set aside the verdict contending that under the Enabling Act Wisconsin was ceded said section for school purposes and therefore it was not a part of the reservation and for that reason the state courts had jurisdiction to punish the alleged offense.
The court stated, 151 U. S. 577, at page 585, 14 S. Ct. 426, at page 429: “But, independently of any question of title, we think the court below had jurisdiction of the case. The Indians of the country are considered as the wards of the nation, and whenever the United States set apart any land of their own as an Indian reservation, whether within a state or territory, they have full authority to pass such laws and authorize such measures as may be necessary to give to these people full protection in their persons and property, and to punish all offenses committed * * * by them within such reservations.” Citing-United States v. Kagama, supra. Compare Rice v. Olson, supra; Tulee v. Washington, 315 U. S. 681, 62 S. Ct. 862, 86 L. Ed. 1115.
Consideration has been given to the state’s argument in regard to our Enabling Act and the provisions thereof. The answer to that argument is: That the admission of a state into the union, even without an express reservation by Congress of governmental jurisdiction over the public lands within its borders, does not qualify the former federal jurisdiction over tribal Indians so as to withdraw from the United States authority to punish crimes committed by Indians on an Indian reservation, Donnelly v. United States, 228 U. S. 243, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710; Id., 228 U. S. 708, 33 S. Ct. 1024, 57 L. Ed. 1035, or so as to make tribal Indians amenable to state laws for the ten major crimes committed on their reservation. 27 Am. Jur., Indians, pp. 568, 569, 572, secs. 43, 47; 42 C. J. S., Indians, sec. 70, pages 776, 777, sec. 79, subd. (b), pages 795, 796, 797. Whatever rights a state acquires by its Enabling Act are subordinate to the Indians’ prior right of occupancy. United States v. Thomas, supra; Tulee v. Washington, supra.
The fact that the federal government has alienated its fee in land or lands, by patent, which are situate within the limits of a regularly organized Indian reservation in the state does not divest it of its exclusive jurisdiction over its ward Indian, who has committed, within the limits of such an Indian reservation, one of the ten major crimes, and such Indian committing such a crime is accountable only to it for the offense.
Clearly such a tribal Indian without an allotment has an equal immunity. See Ex parte Pero and Moore, 7 Cir., 99 F. (2d) 28, certiorari denied, Lee v. Pero, 306 U. S. 643, 59 S. Ct. 581, 83 L. Ed. 1043.
In United States v. McGowan, 302 U. S. 535, 538, 539, 58 S. Ct. 286, 288, 82 L. Ed. 410, the court stated: “Congress possesses the broad power of legislating for the protection of the Indians wherever they may be within the territory of the United States ’ ’ and ‘ ‘ Congress alone has the right to determine the manner in which this country’s guardianship over the Indians shall be carried out * * Compare State v. Jackson, 218 Minn. 429, 16 N. W. (2d) 752.
The federal government has always had the jurisdiction to enforce its criminal statutes within the limits of an Indian reservation to the exclusion of the state, as to the Indian com mitting such offense. It exercises its jurisdiction wherever therein the crime is committed. See Application of Konaha, 7 Cir., 131 F. (2d) 737, 739; United States v. Kagama, supra.
Neither the Constitution of the state, nor any Act of its legislature can withdraw such Indians from the Act of Congress which body alone has the constitutional right to legislate concerning its wards. Any other doctrine would make the legislation of the state the supreme law of the land, instead of the Constitution of the United States, and the laws and treaties made in pursuance thereof. Art. VI, U. S. Const. Compare United States v. Holliday, 3 Wall. 407, 18 L. Ed. 182; Worcester v. State of Georgia, 6 Pet. 515, 8 L. Ed. 483.
In Ex parte Pero and Moore, supra, Pero was an enrolled and allotted Indian, Moore was found to be an Indian, not enrolled and with no allotment. They were convicted of murder in the Wisconsin state court in 1927, and sentenced to life imprisonment in the Wisconsin state prison. The alleged crime was committed within the limits of the Bad River Indian reservation. The reservation had been by treaty with the federal government set aside for the Lake Superior Chippewa Indians. The contention of the Indians on application to the United States district court on writ of habeas corpus in 1938 was that jurisdiction to try them for the alleged crime was exclusively with the proper federal court, that the trial in the state court and its judgment rendered were a nullity and that petitioners were being unlawfully held in prison. The United States district court granted the writ and the state appealed. The circuit court stated, “Congress has enacted that ‘All Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder * * * on and within any Indian reservation under the jurisdiction of the United States Government * * shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.’ [Title 18, sec. 548, U. S. C. A.]” [99 F. (2d) 29.1
The court found that Moore was “an Indian within the protection of the federal guardian-ward relationship and. within the meaning of ‘Indian’ as used in the jurisdictional statute in question * * #” and “In view of the foregoing we conclude that petitioner Moore is an Indian within the meaning of Section 548, supra. And it follows * * * under the law of the United States, that the Circuit Court of Ashland County, Wisconsin, was without' jurisdiction to hear and pronounce judgment in the cause of State of Wisconsin v. Paul Moore, and that petitioner is being unlawfully detained in the Wisconsin State Prison * * *.
“We conclude that the District Court did not err in holding that petitioners Moore and Pero are under the exclusive jurisdiction of the United States and that jurisdiction over them in connection with the alleged offense was exclusively in the Federal District Court.” Emphasis supplied. This ease was taken to the United States Supreme Court by the attorney general of Wisconsin for writ of certiorari which was denied. See 306 U. S. 643, 59 S. Ct. 581, 83 L. Ed. 1043. It should be noted that this ease of Ex parte Pero and Moore was rendered some five years after the decision of State v. Johnson, 212 Wis. 301, 249 N. W. 284. Compare Yohyowan v. Luce, D. C., 291 F. 425, 427, 429.
In application of IConaha, supra, Konaha was an enrolled member of the Menominee Tribe of Indians, residing on said reservation. The crime of manslaughter was alleged to have been committed by him on state highway No. 47, located within the boundary of said Indian reservation.
The federal district court on habeas corpus, held that the state of Wisconsin had no jurisdiction over this Indian and the state appealed. The circuit court stated [131 F. (2d) 738]: “It seems to be well settled that in the absence of legislation by Congress conferring jurisdiction upon the Wisconsin state courts, they have no jurisdiction of crimes committed by tribal Indians, on Indian reservations.” State v. Rufus, supra; United States v. Kagama, supra. The court continued: “For our purpose, how ever it is immaterial whether he be referred to as ‘a ward of the nation’ or as one especially protected because of * * * Congressional action. In any case, the United States has consistently exercised exclusive jurisdiction over Indians who live on the reservations and are members of the tribe with which the United States has a treaty * * A
‘ ‘ Our final conclusion, therefore, is that for the offense with which the appellee is charged, the Federal Court has exclusive jurisdiction.” Compare Yohyowan v. Luce, supra.
We should keep in mind that we are here dealing with federal laws, enacted by Congress in the interests and protection of the “nation’s wards.” “The authority of the United States Government is supreme in its cognizance of all subjects which the Constitution has committed to it. Consequently, there can be no conflict of authority, in the sense here given to the term, between a state and a law of the United States in respect of such a matter, the former being always subordinate and the latter paramount. * * * The states * * * cannot invade a field which belongs exclusively to Congress. Likewise, where Congress has legislated upon a subject which is within its constitutional control and over which it has the right to assume exclusive jurisdiction and has manifested its intention to deal therewith in full, the authority of the states is necessarily excluded. * * 11 Am. Jur., Conflict of Laws, p. 306, sec. 8.
The Constitution of the United States, Article YI, denominated the paramount clause, provides in part: ‘ ‘ This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall he hound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Emphasis supplied. Compare Ex parte Anderson, 125 Mont. 331, 238 Pac. (2d) 910.
It should be emphasized that the above clause, “and the Judges in every State shall be bound thereby” is the reason that every judge in every state is required to take the oath of office that is prescribed by the last paragraph of said Article. This clause contemplates that cases within the judicial cognizance of the United States, not only might, but would arise in the state courts, in the ordinary procedures. The obligation of the clause “is imperative upon the state judges in their official # * * capacities. ’ ’ They are not to decide merely according to state laws or Constitution, but according to the Constitution, laws and treaties of the United States — “the supreme law of the land.” Compare Martin v. Hunter’s Lessee, 1 Wheat. 304, 340, 4 L. Ed. 97; 21 C. J. S., Courts, sec. 206, n. 49, pages 365, 372.
It should be repeated that the Constitution, laws and treaties of the United States are as much a part of the law of every state as its own Constitution and laws. Compare Hauenstein v. Lynham, 100 U. S. 483, 490, 25 L. Ed. 628. A state law, even if based on the acknowledged police power of a state, must always yield in case of a conflict with the exercise by the General Government of any power it possesses under the laws and Constitution or with any right which that instrument gives or secures. See Jacobson v. Massachusetts, 197 U. S. 11, 25, 25 S. Ct. 358, 49 L. Ed. 643. As to the constitutionality of the federal legislation applicable herein, see United States v. Kagama, supra.
The General Government has consistently maintained that it has exclusive jurisdiction in dealing with its ward Indians, as was pointed out in State v. Pepion, supra. Section 1153, Title 18, U. S. C. A., provides: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely * # * burglary * * * within the Indian country, shall he subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” Emphasis supplied.
The jurisdiction and venue of such crimes is established by Section 3242, Title 18, U. S. C. A., as follows: “All Indians committing any of the following offenses, namely * * * burglary * * * on and within the Indian country, shall be tried in the same courts and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.” Emphasis supplied. The assuming of jurisdiction in such cases by the state district court conflicts with the action of Congress which has dealt with the crime of burglary committed by an Indian within the limits of an Indian reservation.
A great deal of argument has been developed in regard to the proper interpretation of the definition of “Indian Country,” as defined by section 1151, Title 18, U. S. C. A., which reads as far as pertinent here, as follows, “the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation * * Emphasis supplied.
A brief review of congressional legislation in recent years may be helpful. The Congress by its Criminal Code of 1909, Chapter 321, sec. 328, 35 Stat. 1151, sec. 548, Title 18, U. S. C. A., enacted, as far as pertinent here, that “All Indians committing against the person or property of another Indian or other person any of the following crimes, namely — murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, and larceny, within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; * *. And all such Indians committing any of the above-named crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and be subject to the same penalties .as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States”. Emphasis supplied.
By the Act of June 28, 1932, being Chapter 284, 47 Stat. 337, the Congress amended the above sections 548 and 549, Title 18, U. S. C. A., as far as pertinent here as follows: “All Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny on and within any Indian reservation under the jimsdiction of the United States Government, including rights of way running through the reservation, shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States * * Emphasis supplied.
It will be noted that the offenses of incest and robbery were added, making the “Ten Major Crimes Act.” Also added was the wording “under the jurisdiction of the United States Government, including rights of way running through the reservation”.
The report of the Committee of the Judiciary, ffBOé, on revision of Title 18 of the United States Code, 80th Congress, 1st Session, at p. A91, states in regard to section 1151 revised, ‘ ‘ This section consolidates numerous conflicting and inconsistent provisions of law into a concise statement of the applicable law. ’ ’ And in regard to section 1153 the report states at page A92: “The revised section therefore suffices to cover prosecutions of the specific offenses committed on all reservations as intended by Congress” and “Words ‘Indian country’ were substituted for language relating to jurisdiction extending to reservations and rights-of-way, in view of definite section 1151 of this title” and “Venue provisions of said section 548 of Title 18, U. S. C., 1940 ed. are incorporated in section 3242 of this title.” Em phasis supplied. The foregoing manifests the intention of Congress in passing this legislation.
When this legislation is considered in conjunction with its historical background, we think the real intent of Congress in enacting the foregoing quoted part of section 1151, and defining “Indian Country,” was to limit or restrict the meaning of “Indian Country” from the broad interpretation that had been given to the term by some of the federal courts in attempting to solve the questions that were arising in regard to those instances where parts of established Indian reservations had been ceded by the tribes to the government and then by the government thrown open to settlement. Also in some instances whole reservations had been completely disorganized, disestablished, dissolved and abandoned and all government supervision terminated.
To meet such situations the Congress by apt and deliberate choice of words and phrases defined “Indian Country” as “all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation”, Title 18, sec. 1151, U. S. C. A., supra, demonstrating the intent of Congress to, in this paragraph restrict the exclusive jurisdiction of the United States to those Indian reservations which have been set apart and organized by and which are under the supervision of the General Government for and as Indian reservations lying within a state. Compare Tooisgah v. United States, supra.
Under the above quoted part of section 1151, supra, all land within the limits of any organized and supervised Indian reservation notwithstanding the issuance of any patent and including rights-of-way running through the reservation, upon which one of the offenses enumerated in section 1153 or 3242, supra, is committed by an Indian for the purpose of this Act is Indian Country, and the exclusive jurisdiction of such offenses so committed is in the federal courts. See State v. Pepion, supra.
As stated in Tohyowan v. Luce, supra, 291 F. 425, at page 429: “But in any event both this court and the Supreme Court of the state of Washington are bound by the decision of the Supreme Court of the United States; the question involved being one arising under the laws of the United States and capable of being determined by that court finally, whether the case giving rise to the question originates in a state or in a federal court.” Compare Montana Manganese Co. v. Ringeling, 65 Mont. 249, 257, 211 Pac. 333.
Relator’s Attorney’s Fees. August 7, 1951, and prior to the commencement of the hearing that day held in the state district court on relator’s petition after its transfer from this court, the relator in the custody of the sheriff of Lake county, appeared before the district court and, representing to the court that he was without counsel and wholly without the funds or means to employ counsel, requested that the court appoint Stanley M. Doyle, Esq. to represent him in the proceedings then about to commence. The county attorney objected to the proposed appointment contending that in such proceedings the district court was without authority to appoint counsel for relator.
The record before this court shows no ruling by the court on the county attorney’s above objections nor does it show any written order appointing counsel to represent relator, but it does recite that a hearing on August 7, 1951, on relator’s petition, was had before such court at which attorney Doyle represented the relator and that during the hearing and thereafter the court recognized Mr. Doyle as relator’s counsel. The record disclosing that relator was wholly without funds or means to employ counsel, under the circumstances and the law, relator was entitled to counsel to represent and advise him, Art. III, secs. 6 and 16, Mont. Constitution; United States Constitution, Amend. 6; Sullivan v. Board of County Com’rs of Silver Bow County, Mont., 224 Pac. (2d) 135; Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; Knox County Council v. State ex rel. Kirk, 217 Ind. 493, 29 N. E. (2d) 405, 130 A. L. R. 1427; John v. Municipal Court, 220 Wis. 334, 264 N. W. 829; Rice v. Olson, supra; and we assume that such appointment was made.
October 17, 1951, relator’s attorney Mr. Doyle, filed petition in the trial court for an allowance of attorney’s fees which petition was resisted by the county attorney, and on October 23, 1950, the matter was submitted and taken under advisement. The question had not been determined ten days later, when relator through his counsel Mr. Doyle, instituted the instant proceeding in this court, hence the busy trial judge, with his many pressing duties, apparently did not have time to examine and determine the question as undoubtedly he will, in conformity with R. C. M. 1947, section 94-6513, as amended by Chapter 38, Laws of 1949.
We hold that the state district court was without jurisdiction to try the petitioning Indian for the offense of which he was here accused and for which he was convicted and that under the undisputed facts, the trial court’s purported judgment is a nullity. Accordingly the judgment of conviction and the sentence imposed are reversed and set aside as void; the information is ordered dismissed; the petitioner James Hugh Irvine is ordered to be released and discharged from custody, and remittitur will issue forthwith.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES METCALF and FREEBOURN, concur.
|
[
20,
30,
-43,
1,
-1,
-52,
11,
-20,
-17,
48,
13,
-19,
-70,
-59,
-15,
-37,
-39,
13,
47,
-35,
20,
-46,
-37,
89,
28,
-9,
-20,
4,
5,
-2,
-2,
41,
-8,
-67,
35,
32,
8,
-36,
-2,
-11,
10,
32,
32,
28,
-20,
45,
9,
26,
75,
-50,
7,
-42,
30,
70,
36,
10,
41,
16,
42,
17,
-12,
18,
36,
-41,
44,
-31,
3,
-25,
13,
23,
6,
-65,
21,
-11,
10,
16,
-42,
-36,
-13,
22,
52,
43,
-9,
17,
-39,
-47,
-27,
-20,
-7,
-27,
-35,
32,
-17,
29,
34,
-66,
-52,
13,
0,
-23,
10,
-18,
33,
3,
-23,
13,
-70,
-36,
20,
49,
-4,
20,
31,
0,
0,
-27,
-45,
-38,
25,
-24,
-12,
-46,
23,
-16,
-14,
-15,
-56,
29,
-24,
8,
-1,
19,
40,
-35,
-37,
-9,
-11,
10,
18,
3,
12,
-28,
56,
41,
1,
31,
-9,
17,
-22,
63,
5,
51,
70,
34,
-22,
-2,
0,
-17,
-18,
0,
38,
-23,
41,
22,
-4,
44,
-41,
-38,
-42,
-63,
-45,
-25,
-7,
75,
11,
35,
-53,
-12,
58,
11,
23,
-9,
12,
-40,
-27,
35,
-19,
-32,
9,
58,
-25,
-13,
23,
32,
6,
-5,
1,
-14,
-42,
-51,
0,
-2,
34,
6,
-23,
-37,
7,
17,
47,
3,
-6,
-77,
4,
-9,
32,
0,
-27,
21,
49,
-8,
-37,
9,
3,
54,
-21,
-39,
52,
92,
-12,
-41,
25,
25,
-21,
-54,
47,
-1,
-22,
61,
15,
0,
26,
-20,
36,
-31,
73,
1,
-24,
-14,
-109,
45,
-4,
-14,
-38,
19,
-9,
2,
60,
-42,
-1,
-34,
-19,
-99,
73,
59,
-33,
-2,
-7,
0,
-30,
-5,
-34,
34,
44,
-71,
-31,
-13,
-21,
-10,
24,
13,
43,
-16,
51,
31,
33,
-33,
0,
-15,
-73,
-11,
-17,
17,
7,
-25,
10,
30,
76,
-41,
0,
-10,
-16,
-24,
-49,
-9,
-56,
38,
6,
35,
-30,
-3,
31,
-9,
-32,
15,
32,
-36,
-13,
76,
28,
-3,
1,
12,
44,
-31,
29,
-4,
0,
0,
10,
-54,
18,
-17,
5,
13,
24,
18,
8,
7,
32,
48,
-6,
-37,
11,
6,
-63,
54,
-1,
44,
-31,
-52,
18,
4,
-30,
-14,
9,
41,
-91,
-5,
-12,
-1,
39,
6,
0,
-44,
-44,
28,
-44,
-23,
-14,
-3,
-16,
-32,
50,
-29,
50,
4,
1,
24,
-33,
43,
37,
-16,
6,
30,
-6,
-4,
-69,
-10,
12,
-24,
-48,
5,
10,
-43,
46,
-35,
48,
6,
5,
-61,
21,
30,
9,
26,
-10,
-56,
12,
-2,
22,
-25,
59,
-41,
-50,
-16,
-4,
-18,
-43,
-9,
21,
2,
-17,
21,
-11,
-40,
39,
28,
42,
3,
32,
-16,
69,
-26,
-44,
-16,
27,
38,
-105,
20,
-2,
-29,
4,
-33,
-4,
-22,
22,
-55,
-49,
-16,
23,
41,
-18,
14,
-44,
-107,
-15,
80,
4,
15,
-27,
-60,
-4,
4,
-7,
2,
20,
-4,
37,
-26,
-14,
60,
9,
24,
-40,
21,
-5,
25,
10,
-50,
70,
-40,
-14,
-30,
-35,
26,
-26,
-22,
-20,
-21,
2,
30,
-17,
4,
20,
22,
-30,
-8,
-48,
-18,
56,
-18,
-22,
32,
11,
2,
9,
31,
9,
11,
-75,
47,
-7,
-33,
-9,
-9,
24,
3,
22,
0,
-32,
-1,
-28,
70,
46,
-12,
39,
12,
-12,
10,
-25,
-3,
-40,
-30,
-23,
24,
-7,
35,
52,
12,
29,
-27,
99,
-24,
67,
20,
-35,
4,
-1,
-27,
-27,
-34,
49,
34,
11,
-30,
-34,
-2,
-39,
15,
-41,
-11,
8,
-29,
17,
8,
0,
59,
-37,
1,
20,
32,
-13,
30,
-23,
-35,
-17,
43,
-32,
-24,
17,
86,
9,
37,
18,
-31,
-31,
-45,
33,
11,
44,
-1,
-80,
3,
-4,
3,
-30,
-19,
-68,
-43,
-34,
-28,
1,
42,
51,
-7,
29,
5,
34,
8,
-6,
24,
-30,
-4,
18,
22,
-2,
34,
22,
-22,
-36,
-16,
34,
8,
-3,
-1,
0,
-62,
-24,
1,
-20,
-6,
-7,
11,
10,
4,
26,
-16,
-2,
-5,
-5,
10,
-14,
-7,
-36,
33,
-23,
-6,
34,
-10,
-25,
-48,
-24,
10,
10,
-2,
-25,
-42,
-3,
69,
20,
9,
7,
61,
-16,
13,
4,
-2,
5,
-16,
22,
-46,
-23,
-87,
-29,
-46,
-26,
-29,
0,
-26,
-8,
-23,
24,
38,
35,
-40,
44,
53,
-18,
25,
2,
47,
2,
7,
11,
-3,
59,
-47,
35,
-33,
-15,
-18,
14,
-28,
11,
-13,
3,
-22,
24,
-71,
-58,
-57,
-27,
-12,
29,
60,
-41,
-3,
-33,
-4,
1,
33,
-6,
2,
-12,
33,
67,
33,
10,
7,
17,
0,
34,
-30,
4,
-44,
8,
16,
-26,
4,
-8,
16,
9,
-1,
-16,
19,
55,
-4,
13,
-9,
-40,
0,
7,
51,
10,
3,
-23,
-6,
33,
35,
-27,
11,
62,
3,
-55,
-26,
-42,
-7,
34,
-51,
50,
-22,
14,
-21,
-65,
20,
-22,
13,
11,
17,
71,
-38,
0,
29,
-51,
-48,
-28,
4,
-2,
25,
39,
1,
-18,
-21,
23,
-25,
-32,
18,
22,
16,
-40,
101,
-9,
0,
35,
60,
47,
33,
-6,
-5,
-51,
55,
-34,
8,
-13,
-17,
-2,
-4,
-17,
11,
0,
-30,
-11,
17,
42,
-8,
49,
7,
-11,
-17,
-7,
10,
-36,
37,
-3,
6,
-27,
0,
-5,
-26,
12,
71,
26,
-3,
-35,
-63,
5,
-14,
68,
-44,
6,
12,
18,
37,
-3,
9,
3,
38,
30,
19,
-1,
47,
-4,
-45,
10,
24,
-16,
21,
59,
-12,
-61,
53,
29,
14,
23,
23,
21,
-42,
5,
-32,
-7,
-50,
10,
1,
24,
21,
-14,
-18,
0,
-7,
73,
-2,
-61,
12,
-15,
41,
15,
-13,
-40,
-3,
-76,
-25,
73,
61,
-31,
52,
36,
-38,
-66,
29,
44,
-2,
5,
-56,
12,
-13,
-56,
-40,
-40,
20,
0,
24,
-28,
54,
-16,
31,
-12,
5,
-8,
-5,
-11,
103,
-22,
74,
-31,
-27,
28,
16,
30,
-7,
-16,
-11,
-24,
9,
55,
5,
0,
10,
36,
-31,
-13,
-30,
-9,
7,
-63,
29,
9,
9,
1,
-34,
12,
7,
-7,
61,
-23,
-15,
-7,
11,
-2,
22,
69,
-50,
-45,
-20,
31,
28,
63,
11,
22,
7,
50,
13,
-27,
-10,
-22,
-2,
4,
-9,
21,
-51,
28,
-8,
17,
-40,
-48,
32,
63,
-20,
-3,
-35,
-34,
-50,
0,
3,
-11,
-3,
0,
-39,
6,
-29,
47,
-23,
15,
-7,
59,
-68,
-7,
-12,
25,
7,
-37,
54,
-67,
-46,
-8,
7
] |
MR. JUSTICE FREEBOURN:
Frank R. Dryman, also known as Frank R. Valentine, defendant and appellant, was charged by information filed April 11, 1951, with the crime of murder. To this charge, without benefit of counsel, he plead guilty and was by the lower court on April 12, 1951, sentenced to be “hanged by the neck until dead.’’ Such hanging was to take place on June 1, 1951.
On May 28, 1951, Dryman petitioned the lower court to be permitted to withdraw his plea of guilty and substitute therefor a plea of not guilty. From the judgment of conviction and an order denying him the right to change his plea he appeals.
The petition alleged the “defendant was not competent” when the plea of guilty was made, and that defendant’s attorneys had evidence which “raises serious question as to the mental stability and capacity of this defendant. ’ ’ It was based upon the affidavit of one of defendant’s counsel and upon the medical records of the United States Navy, duly authenticated. Upon hearing, both defendant and the state submitted evidence.
The hospital records of the United States Navy show: That on May 7, 1949, defendant, then not eighteen years of age, was suffering from “schizophrenia” and such records designated defendant as “insane.”
Called by the state, Dr. Robert Spratt, superintendent of Montana’s hospital for the insane, a capable medical man and a trained psychiatrist, who served as such in the United States naval hospitals during World War II, stated that “from his experience in the navy,” he knew that naval doctors and psychiatrists “were competent men.”
Dr. Spratt, having questioned and had defendant under observation, on direct examination testified:
“Q. Do you believe he is suffering from a mental disease? A. Yes.
“Q. A disease of the type that can be cured? A. I can’t think of any case, that I know of that was cured.
‘ ‘ Q. How would you diagnose the condition of the defendant ? A. It is my opinion that he has a psychopathic personality. ’ ’
On cross-examination he said:
“Q. In your opinion is a schizophrenia a dangerous person to be at large? A. Yes, usually — or frequently. I will change that to frequently. * * *
“Q. You say because of what went on, there is certainly a mental disease or illness? A. Yes.”
The evidence raises a grave doubt that defendant had the mental capacity to appreciate and understand what he was doing and the consequences thereof, when, without benefit of counsel, he pleaded guilty to the charge of murder. Since ■all doubt should be resolved in favor of a trial on the merits, defendant should have been allowed to withdraw his plea of guilty and enter a plea of not guilty.
In State ex rel. Foot v. District Court, 81 Mont. 495, 263 Pac. 979, 982, this court, in upholding the right to change a plea of guilty to not guilty, after sentence, said: “A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, persuasion, promise, or ignorance.” See also State v. McAllister, 96 Mont. 348, 30 Pac. (2d) 821.
In State v. Casaras, 104 Mont. 404, 66 Pac. (2d) 774, 778, a case where the death penalty followed a plea of guilty, we said: “This court is committed to the rule that a plea of guilty, to stand, must be entirely voluntary and freely made, without inducement and without any procuring cause, State ex rel. Foot v. District Court, supra [81 Mont. 495, 263 Pac. 979] ; State v. McAllister, supra [96 Mont. 348, 30 Pac. (2d) 821], and that on application by the accused to change a plea of guilty to a plea of not guilty, all doubt should be resolved in favor of a trial on the merits, and that the trial court’s discretion should be liberally exercised in favor of life and liberty. State v. McAllister, supra.”
For the reasons stated the cause is remanded to the lower court with directions to set aside the judgment and allow defendant to withdraw his plea of guilty and enter a plea of not guilty.
ME. CHIEF JUSTICE ADAIE and ASSOCIATE JUSTICES METCALF, BOTTOMLY and ANGSTMAN, concur.
|
[
52,
-28,
12,
-21,
-36,
-108,
40,
10,
-27,
-15,
10,
-36,
-35,
-48,
-3,
2,
63,
-43,
26,
-5,
-27,
0,
-6,
-45,
5,
5,
-52,
2,
-52,
-28,
87,
-9,
2,
-53,
22,
61,
-8,
-106,
22,
-18,
3,
-23,
-8,
-38,
69,
33,
-3,
-8,
-46,
-1,
39,
21,
54,
7,
-38,
-20,
65,
28,
-38,
-16,
-25,
0,
-22,
-10,
-33,
40,
-4,
17,
-22,
-7,
1,
-101,
48,
41,
6,
-31,
1,
9,
29,
-45,
14,
101,
3,
-39,
-9,
-48,
-10,
30,
19,
19,
89,
-31,
34,
11,
-70,
-23,
23,
-20,
-18,
-22,
-9,
-18,
-73,
-23,
-10,
33,
-38,
7,
2,
34,
-8,
47,
33,
112,
-19,
-59,
-16,
1,
-2,
68,
-40,
-54,
11,
16,
2,
30,
-44,
12,
28,
-13,
20,
-14,
57,
27,
-19,
-20,
-40,
-4,
18,
-16,
-43,
14,
-2,
-8,
12,
43,
25,
11,
45,
33,
-49,
-32,
18,
-42,
29,
-6,
-36,
-29,
-37,
64,
-37,
-68,
74,
6,
35,
-15,
-49,
3,
-33,
-44,
-53,
2,
25,
39,
-34,
51,
-8,
-3,
21,
25,
-40,
-14,
4,
-59,
6,
24,
26,
3,
-21,
56,
20,
-14,
0,
-8,
26,
43,
-15,
-9,
66,
37,
-13,
21,
-36,
10,
-17,
0,
11,
-4,
78,
73,
14,
-34,
17,
-33,
-21,
-21,
-9,
4,
-41,
-2,
-44,
-14,
44,
31,
25,
-1,
5,
64,
12,
-3,
-20,
57,
-37,
25,
2,
-10,
-21,
44,
9,
-20,
-77,
-35,
80,
-13,
8,
19,
-28,
-4,
-69,
-42,
20,
45,
52,
5,
-43,
-8,
-18,
15,
15,
-6,
-22,
-38,
29,
0,
-5,
50,
24,
-19,
56,
-34,
30,
-19,
23,
2,
29,
27,
-40,
22,
35,
-14,
20,
-18,
20,
-34,
26,
-28,
-6,
17,
-56,
-32,
6,
-2,
13,
-77,
69,
-40,
10,
-9,
-2,
1,
13,
6,
-28,
9,
19,
32,
-17,
39,
-19,
-21,
21,
-20,
38,
16,
1,
20,
0,
-46,
40,
-14,
-50,
-1,
-54,
13,
6,
1,
6,
59,
-67,
41,
-1,
71,
-65,
0,
-19,
3,
-90,
-24,
26,
61,
-19,
-1,
-32,
-5,
-1,
25,
57,
22,
-79,
-65,
-38,
-14,
26,
-53,
-67,
42,
-17,
11,
101,
-64,
10,
9,
-43,
74,
-24,
-47,
-17,
-47,
-24,
30,
92,
-16,
-17,
-66,
-28,
44,
48,
14,
-15,
-3,
-17,
56,
69,
-2,
-53,
37,
-46,
-76,
65,
47,
-45,
69,
-44,
-40,
16,
39,
2,
-1,
32,
-30,
54,
-25,
-4,
-15,
29,
21,
-33,
36,
8,
24,
47,
64,
46,
43,
8,
-104,
-36,
3,
27,
-98,
61,
21,
69,
16,
19,
-10,
19,
-3,
-6,
-25,
88,
-28,
-6,
-5,
-61,
-7,
-16,
46,
37,
-1,
-56,
-15,
28,
15,
33,
27,
64,
-33,
72,
-31,
-29,
5,
-43,
-64,
-22,
35,
-30,
13,
39,
4,
-62,
-41,
46,
-100,
60,
-2,
1,
-13,
18,
15,
22,
-26,
-12,
38,
-40,
-4,
59,
-14,
-16,
-79,
-27,
-21,
-10,
-5,
-12,
31,
-97,
-8,
-7,
2,
-18,
-16,
-43,
-9,
-45,
14,
-27,
-23,
-44,
9,
-37,
11,
-30,
-3,
6,
-35,
33,
-40,
50,
-25,
-27,
29,
-33,
51,
19,
-102,
57,
-10,
-3,
55,
-28,
37,
37,
-43,
-13,
1,
-69,
-69,
-37,
-49,
4,
-52,
-47,
-44,
60,
-21,
-20,
-34,
-4,
-63,
115,
-20,
88,
18,
3,
-6,
63,
66,
25,
21,
-22,
-3,
32,
72,
-15,
8,
16,
-41,
51,
42,
22,
-41,
3,
68,
-59,
31,
-61,
13,
8,
-10,
40,
36,
-45,
38,
28,
-7,
-2,
50,
29,
48,
30,
-10,
70,
62,
-35,
-27,
-9,
-11,
-38,
-2,
-16,
-32,
7,
12,
16,
8,
-37,
39,
-91,
-17,
-11,
28,
78,
62,
-10,
19,
38,
10,
35,
-16,
-6,
-25,
19,
-10,
-78,
51,
-27,
-8,
-31,
-1,
-19,
-56,
-24,
29,
68,
-31,
-16,
-42,
23,
-57,
-60,
-12,
81,
27,
-24,
-86,
-2,
-43,
-7,
13,
-4,
5,
17,
36,
-46,
11,
17,
-48,
-12,
31,
19,
-20,
-50,
10,
-38,
-43,
-56,
-23,
-15,
56,
-16,
48,
-54,
-27,
24,
72,
21,
-51,
-90,
-21,
20,
31,
-82,
-30,
-14,
-26,
12,
-3,
26,
-46,
-25,
1,
39,
-13,
47,
51,
-3,
29,
5,
47,
-38,
15,
37,
13,
32,
76,
40,
-52,
37,
27,
43,
-51,
-73,
37,
-48,
19,
17,
-25,
-53,
-2,
-72,
3,
-39,
26,
-4,
-11,
-49,
-24,
-15,
66,
-94,
0,
-4,
28,
56,
1,
-2,
40,
-24,
-33,
70,
-14,
-48,
17,
6,
15,
-33,
3,
-13,
-6,
3,
-27,
-14,
-34,
-49,
-22,
-35,
-99,
43,
24,
6,
27,
13,
-27,
22,
-6,
28,
23,
-52,
24,
43,
66,
13,
12,
-81,
31,
23,
-1,
19,
26,
-43,
-34,
-53,
-53,
-69,
2,
-22,
-21,
28,
9,
-13,
52,
-71,
-14,
2,
37,
-72,
55,
27,
-63,
-19,
-14,
-41,
47,
-5,
52,
-39,
-4,
-36,
95,
-38,
-15,
-24,
-1,
19,
-25,
48,
60,
-2,
11,
0,
40,
24,
-7,
-48,
-11,
42,
-23,
-25,
34,
35,
0,
9,
8,
3,
-21,
8,
27,
9,
-13,
-13,
29,
9,
40,
-47,
31,
32,
-52,
-8,
-2,
-7,
-10,
9,
0,
52,
-50,
10,
9,
-6,
7,
96,
-8,
-39,
44,
-74,
-38,
35,
4,
22,
-16,
-41,
-5,
9,
-15,
44,
34,
62,
-32,
-9,
-50,
28,
-33,
42,
25,
-8,
11,
6,
-25,
27,
48,
19,
-23,
59,
-1,
-18,
-40,
27,
-17,
-61,
-34,
-21,
54,
0,
29,
14,
32,
-24,
34,
-9,
7,
32,
-5,
35,
-14,
21,
-52,
17,
22,
-35,
63,
0,
-36,
-16,
37,
2,
37,
-18,
6,
48,
-59,
-71,
9,
69,
43,
-4,
-30,
8,
-5,
-19,
41,
-23,
3,
41,
-52,
26,
2,
56,
-7,
-30,
-18,
52,
34,
-16,
71,
29,
23,
47,
-61,
41,
26,
23,
46,
-8,
74,
9,
-12,
30,
-23,
23,
15,
4,
10,
-50,
58,
-35,
31,
1,
21,
72,
25,
13,
8,
-17,
12,
59,
-26,
16,
-78,
3,
41,
-46,
41,
-39,
-27,
86,
-83,
19,
21,
-31,
-37,
21,
-74,
-39,
68,
-12,
17,
24,
-30,
-40,
-23,
14,
27,
39,
17,
35,
-15,
21,
8,
-18,
0,
-29,
18,
6,
-21,
-50,
9,
-47,
-38,
-11,
48,
-62,
12,
-32,
0
] |
Per Curiam.
Writ denied. Proceedings dismissed.
|
[
-13,
-65,
11,
-9,
53,
-31,
24,
11,
-4,
11,
-25,
16,
-28,
30,
-64,
118,
62,
-5,
23,
-90,
14,
6,
46,
7,
-16,
-28,
7,
31,
44,
-14,
27,
-78,
-46,
17,
-55,
-56,
-35,
24,
8,
-16,
24,
-37,
5,
23,
-30,
-37,
-1,
53,
-3,
34,
-42,
-5,
-46,
-82,
-80,
-24,
43,
-52,
5,
-34,
-68,
85,
28,
-34,
5,
-27,
-34,
-27,
22,
35,
5,
8,
46,
-8,
-20,
-53,
6,
-23,
7,
29,
36,
46,
15,
82,
1,
21,
25,
52,
24,
30,
28,
-10,
-49,
14,
-67,
69,
24,
-28,
-8,
39,
-8,
41,
58,
-91,
-42,
-47,
-26,
12,
-37,
17,
-22,
-17,
12,
15,
59,
-12,
24,
-24,
23,
-18,
-25,
-5,
6,
15,
-14,
46,
-48,
46,
48,
30,
39,
39,
36,
41,
-3,
-52,
10,
63,
-35,
-82,
-9,
-64,
49,
14,
-29,
-76,
20,
3,
-61,
10,
5,
-7,
-65,
44,
35,
54,
41,
-27,
53,
46,
19,
-7,
-14,
-57,
80,
1,
-9,
-10,
55,
-45,
-45,
14,
-25,
-83,
-31,
-50,
-47,
49,
56,
33,
32,
35,
-8,
26,
8,
-6,
3,
-5,
-11,
8,
-49,
32,
37,
62,
55,
-9,
47,
-42,
36,
20,
-42,
12,
-27,
-78,
5,
-14,
26,
-44,
22,
12,
-63,
-41,
10,
-51,
5,
-49,
54,
25,
86,
37,
32,
-9,
-35,
-39,
7,
33,
18,
12,
26,
17,
-27,
0,
-49,
25,
89,
-44,
62,
10,
20,
-21,
-91,
20,
6,
38,
9,
-15,
-25,
84,
38,
-31,
-37,
-5,
30,
-38,
-32,
-39,
-94,
51,
37,
-55,
14,
64,
-50,
-56,
-26,
17,
64,
50,
84,
-1,
-18,
-18,
-39,
42,
83,
38,
-13,
-3,
0,
26,
-42,
-15,
45,
-27,
-35,
-6,
31,
-30,
16,
3,
-39,
34,
-18,
26,
-15,
-29,
-38,
-21,
-34,
-18,
-37,
-30,
-8,
-2,
-8,
-55,
0,
-37,
54,
-59,
-16,
64,
55,
-8,
-9,
67,
-1,
-56,
-37,
-73,
16,
-49,
-35,
20,
-28,
11,
-14,
-2,
13,
42,
64,
67,
2,
-20,
-47,
36,
0,
-28,
-23,
58,
-59,
36,
-83,
32,
-8,
-29,
11,
-17,
44,
57,
-25,
-37,
2,
-96,
77,
-31,
-20,
-58,
-57,
4,
-22,
-3,
41,
37,
37,
-16,
-6,
23,
6,
51,
-13,
-5,
20,
4,
15,
14,
10,
37,
6,
-22,
-61,
-75,
58,
46,
-5,
116,
66,
19,
21,
-3,
-64,
13,
-47,
-13,
-8,
21,
0,
30,
-6,
109,
27,
-79,
-52,
58,
24,
-22,
46,
0,
-45,
-23,
-86,
34,
6,
55,
13,
-18,
-5,
43,
84,
32,
-41,
-18,
-19,
49,
-63,
-2,
-50,
-25,
46,
36,
9,
7,
13,
-28,
5,
25,
9,
10,
40,
71,
11,
-2,
24,
-35,
-8,
12,
-22,
-41,
-67,
41,
-47,
-4,
-49,
-74,
-28,
-48,
-2,
56,
-2,
62,
-47,
-18,
-20,
-24,
-14,
4,
-7,
-20,
-30,
20,
-2,
-4,
-79,
-29,
-59,
6,
-26,
14,
-70,
13,
34,
35,
-21,
-59,
-19,
25,
-10,
-8,
3,
-44,
-43,
-7,
76,
38,
-30,
12,
-29,
-37,
-63,
15,
21,
39,
-30,
-4,
67,
-13,
29,
-5,
-55,
-59,
6,
2,
50,
-1,
11,
55,
36,
17,
-12,
2,
-41,
-10,
-51,
-27,
0,
-21,
-21,
-16,
23,
63,
-24,
-13,
-62,
-8,
9,
-75,
28,
43,
0,
24,
-11,
20,
17,
24,
39,
83,
-51,
74,
-11,
23,
2,
-1,
-5,
56,
-46,
-49,
-8,
-85,
37,
-70,
22,
-70,
-64,
4,
-7,
29,
3,
18,
-7,
15,
2,
-50,
25,
7,
51,
-31,
56,
-15,
5,
-47,
-3,
68,
-40,
-9,
-68,
-45,
-31,
-100,
-42,
2,
-54,
-76,
40,
-93,
42,
9,
-72,
-7,
4,
77,
-31,
0,
-10,
57,
-45,
22,
49,
8,
-24,
22,
84,
76,
-51,
-5,
4,
-23,
-38,
62,
30,
30,
36,
60,
-35,
41,
29,
-17,
-78,
-30,
5,
53,
32,
36,
-16,
-2,
-50,
52,
-37,
35,
-3,
-54,
1,
12,
37,
-3,
0,
-13,
43,
-111,
30,
25,
60,
73,
-4,
-12,
20,
-8,
1,
-50,
38,
-53,
-23,
22,
-3,
-6,
-76,
36,
5,
8,
-46,
37,
-17,
34,
59,
-35,
-32,
-44,
57,
5,
-37,
-50,
54,
-14,
13,
9,
-17,
-42,
53,
1,
-21,
33,
32,
-50,
18,
20,
-14,
12,
-38,
-20,
2,
16,
15,
-31,
4,
34,
-56,
-11,
-2,
-50,
-30,
-50,
-58,
-62,
-15,
3,
77,
-47,
-16,
25,
25,
-37,
29,
3,
5,
46,
-65,
-60,
23,
-10,
56,
-36,
-17,
31,
80,
28,
-63,
-22,
-25,
-64,
-14,
-45,
-20,
-19,
14,
-65,
-5,
-15,
20,
0,
17,
-37,
42,
-24,
-17,
72,
-9,
-16,
37,
-81,
70,
39,
4,
-11,
4,
-12,
-43,
81,
3,
-39,
-9,
58,
-36,
-43,
57,
-9,
-12,
52,
-21,
15,
72,
53,
-11,
-64,
-35,
71,
49,
-5,
5,
15,
-4,
-32,
64,
-20,
-32,
63,
39,
0,
11,
10,
39,
-2,
-20,
-22,
29,
15,
40,
-13,
-113,
18,
-15,
29,
-17,
-13,
-53,
-1,
6,
63,
11,
-25,
-15,
-41,
14,
-30,
5,
78,
4,
23,
1,
-27,
0,
52,
30,
-5,
24,
11,
-16,
-34,
41,
-4,
-3,
-18,
-77,
-12,
11,
48,
30,
0,
-27,
7,
-12,
49,
44,
-25,
40,
50,
-1,
21,
-2,
-41,
9,
-46,
28,
39,
69,
-86,
0,
-25,
31,
-43,
62,
44,
99,
7,
36,
22,
33,
7,
57,
-24,
9,
39,
2,
53,
-51,
12,
45,
-11,
-9,
-93,
-29,
10,
73,
-30,
10,
0,
56,
37,
1,
-58,
9,
20,
16,
-41,
24,
-25,
46,
-9,
8,
1,
22,
10,
13,
21,
25,
-9,
47,
-62,
32,
75,
-42,
-35,
61,
17,
27,
-18,
23,
0,
-23,
-8,
-20,
-83,
47,
-5,
1,
4,
-56,
-60,
-3,
-7,
-23,
67,
0,
-13,
30,
-32,
-18,
-18,
-47,
-2,
58,
24,
8,
-42,
10,
-56,
-52,
26,
16,
50,
68,
-21,
6,
-24,
-61,
43,
-47,
-6,
36,
65,
-17,
13,
14,
64,
16,
-47,
-46,
-3,
-11,
10,
-10,
19,
21,
-34,
-9,
-57,
-51,
-35,
-7,
59,
-2,
-44,
15,
44,
-26,
-52,
-2,
12,
-6,
-18,
-63,
54,
-59,
52,
49,
-25,
8,
33,
36,
-57,
-25,
35,
22,
50,
39,
28,
19,
-48,
-15,
-2,
0,
2,
-13,
-8,
29,
-26
] |
PER CURIAM.
The defendant was convicted in the District Court of Cascade County of the crime of murder in the second degree and on October 31, 1949, was sentenced to serve at hard labor in the state prison for a term of 30 years. Thereupon she moved for a new trial. The motion was denied. Thereupon she appealed to this Court. She then applied to .the judge of the district court for a certificate of probable cause and for admission to bail pending the appeal. This application was also denied. Thereafter, on December 23, 1949, she filed in this Court her petition for a certificate of probable cause, stay of execution and admission to bail pending determination of the case on appeal, whereupon an order to show cause issued returnable in this Court on January 4, 1950.
The county attorney and defendant’s counsel on this date appeared and orally argued the petition. The record on the appeal has not been filed in the office of the Clerk of this Court and respective counsel conceded that although a bill of exceptions is being prepared it will not be completed nor settled for some time because of the number of witnesses examined and the 'amount of evidence presented.
Defendant’s counsel stated to the Court that without admission to bail an order staying execution would be of no use or benefit to defendant.
The Court after due consideration, orders that defendant’s petition be denied for the reason that no record on appeal containing defendant’s bill of exceptions has been filed or presented to this Court. The order is made without prejudice, however, to another application to the Court or to one of its Justices for bail or for a certificate of probable cause when the record on appeal is filed in the office of the Clerk of this Court in support of the application. See Supreme Court Rule V; State v. McDonald, 27 Mont. 66, 69 Pac. 323.
|
[
-50,
13,
-18,
31,
-4,
-31,
-1,
2,
-51,
47,
3,
-13,
-22,
-61,
-26,
60,
-43,
34,
-5,
-8,
-19,
35,
13,
-27,
-73,
-4,
-18,
-36,
-1,
-8,
14,
11,
-37,
-31,
39,
19,
15,
-23,
31,
60,
11,
-2,
65,
-29,
-44,
-12,
-13,
17,
2,
-50,
-2,
11,
-7,
1,
29,
9,
-13,
-49,
19,
65,
3,
-2,
15,
20,
-9,
11,
20,
-28,
-22,
0,
10,
2,
-9,
9,
9,
-31,
-51,
-12,
20,
21,
6,
19,
3,
-29,
36,
-29,
-17,
-12,
33,
17,
18,
20,
-40,
-10,
-16,
6,
9,
-26,
31,
46,
1,
-17,
-23,
-19,
8,
-7,
-29,
45,
-14,
28,
17,
25,
-17,
-23,
28,
-53,
-4,
-54,
24,
-2,
27,
38,
29,
-27,
12,
5,
9,
58,
75,
-43,
-62,
45,
29,
9,
-10,
23,
25,
-3,
36,
-16,
-52,
27,
-12,
-35,
23,
15,
32,
-5,
4,
8,
-22,
93,
21,
42,
-15,
26,
60,
-6,
-59,
15,
28,
11,
2,
-8,
25,
-52,
-29,
37,
-5,
-76,
9,
21,
-7,
32,
29,
2,
-3,
-4,
31,
29,
-23,
35,
74,
-49,
-26,
30,
-70,
-8,
-30,
-14,
-28,
34,
-5,
-7,
56,
-26,
-4,
0,
40,
54,
-3,
2,
13,
10,
60,
-22,
-9,
-25,
13,
-25,
-55,
-80,
16,
40,
2,
34,
0,
5,
-18,
35,
-62,
9,
56,
0,
41,
-14,
42,
28,
8,
17,
-11,
39,
-12,
14,
31,
-2,
32,
23,
28,
48,
-15,
-15,
66,
23,
16,
30,
-3,
-15,
-24,
-26,
49,
-41,
-12,
-25,
-10,
0,
3,
4,
-21,
-28,
32,
-51,
40,
5,
-90,
33,
-9,
-3,
-18,
-2,
66,
33,
39,
-59,
3,
-13,
9,
-19,
5,
14,
16,
42,
12,
-71,
-43,
-35,
-26,
-24,
14,
2,
-15,
-20,
-12,
-54,
35,
-13,
0,
-77,
-6,
-11,
13,
-75,
-9,
-39,
-32,
-22,
17,
-5,
-2,
-7,
-9,
36,
0,
-8,
-21,
32,
-25,
-65,
23,
29,
-11,
21,
-32,
-34,
53,
54,
-54,
31,
-47,
55,
6,
-19,
-37,
-1,
19,
-5,
-41,
59,
13,
78,
49,
9,
-69,
39,
-21,
-12,
7,
19,
-8,
-21,
24,
9,
3,
-34,
-22,
-3,
-48,
-65,
-35,
9,
-7,
-21,
-22,
-13,
-3,
-56,
38,
13,
29,
-30,
27,
-19,
30,
-52,
-11,
-1,
14,
18,
-7,
-13,
-15,
-28,
5,
21,
5,
66,
68,
-16,
25,
3,
30,
-4,
-31,
-72,
6,
-8,
-26,
34,
-19,
-48,
17,
31,
41,
10,
-13,
28,
-40,
36,
-23,
89,
-10,
23,
-18,
44,
3,
-40,
18,
-38,
-4,
-11,
21,
-21,
-25,
37,
-13,
12,
-5,
24,
-29,
-13,
17,
29,
-18,
67,
0,
39,
-31,
30,
44,
-7,
4,
-26,
3,
-45,
-10,
1,
40,
-31,
-31,
-27,
-10,
58,
11,
4,
-3,
70,
42,
-6,
-6,
-48,
-39,
-49,
-39,
35,
3,
11,
-23,
-22,
25,
-1,
36,
-5,
0,
-13,
29,
-2,
27,
34,
-13,
17,
-35,
7,
12,
3,
5,
3,
0,
-4,
-1,
-11,
25,
-12,
-22,
0,
-81,
3,
-37,
-24,
24,
-21,
-36,
-47,
0,
23,
21,
18,
55,
13,
35,
-12,
-3,
-39,
36,
-21,
-6,
35,
50,
-8,
-28,
-1,
-15,
13,
-21,
1,
4,
11,
24,
-13,
-40,
16,
-41,
-3,
-20,
11,
-2,
9,
-38,
-21,
-33,
-32,
30,
-9,
32,
-4,
6,
43,
-22,
-25,
-25,
0,
9,
41,
-24,
7,
2,
-1,
-51,
0,
-34,
-10,
-17,
-14,
-10,
8,
-9,
-2,
19,
2,
-5,
-5,
28,
-11,
-14,
-9,
25,
4,
-30,
-43,
29,
20,
52,
11,
-33,
-4,
-43,
1,
27,
28,
20,
53,
-64,
17,
8,
-36,
1,
22,
-40,
-52,
-14,
-24,
0,
55,
43,
23,
32,
-38,
20,
0,
50,
-46,
-19,
0,
-37,
42,
-4,
-56,
18,
-30,
-60,
17,
21,
10,
47,
1,
-40,
-38,
-74,
-31,
-44,
25,
0,
-5,
40,
-28,
-42,
23,
-19,
49,
-51,
-33,
0,
40,
12,
-6,
-16,
2,
42,
31,
55,
16,
29,
24,
-11,
0,
11,
12,
-34,
-13,
52,
-24,
-30,
-21,
-22,
-37,
-11,
-15,
-29,
-14,
9,
34,
17,
-7,
-36,
-46,
-43,
-24,
-22,
20,
46,
-66,
42,
-16,
26,
-52,
38,
-52,
-33,
77,
0,
36,
-35,
55,
-7,
39,
-8,
-7,
-9,
30,
-34,
15,
31,
17,
-4,
28,
-17,
-29,
-65,
-69,
30,
-53,
-51,
0,
-1,
0,
-13,
11,
8,
-22,
0,
-15,
-28,
-64,
-13,
35,
-21,
0,
-20,
5,
48,
-20,
30,
9,
-7,
16,
-28,
-20,
16,
-5,
8,
36,
2,
-14,
-16,
13,
36,
-1,
-17,
-69,
-34,
-26,
67,
6,
-6,
31,
-27,
30,
15,
-15,
-35,
2,
44,
6,
-12,
30,
31,
40,
8,
-35,
7,
21,
15,
18,
25,
-6,
-11,
-3,
19,
13,
64,
26,
-49,
29,
-29,
-2,
27,
-5,
-50,
4,
1,
-48,
-26,
14,
-22,
22,
-4,
37,
-62,
6,
-37,
68,
36,
16,
11,
25,
-7,
52,
-18,
56,
-31,
0,
47,
19,
-65,
36,
-14,
-17,
-10,
-23,
33,
-36,
14,
-21,
-21,
4,
58,
-30,
7,
12,
-3,
27,
-14,
7,
19,
-13,
6,
-54,
41,
54,
-23,
-45,
-9,
40,
26,
-29,
-28,
2,
44,
44,
82,
4,
-2,
18,
0,
22,
1,
-24,
49,
-13,
17,
-5,
6,
-9,
2,
-40,
-20,
18,
0,
-2,
-7,
-5,
-31,
-23,
8,
24,
-6,
0,
-1,
39,
1,
0,
-1,
-4,
48,
4,
32,
-38,
-44,
32,
-5,
-39,
-35,
52,
-45,
-6,
14,
40,
-38,
13,
-27,
39,
-21,
13,
-12,
28,
0,
19,
21,
5,
27,
34,
-28,
6,
-23,
-1,
55,
-20,
-48,
13,
5,
-22,
34,
10,
-22,
-16,
-31,
36,
8,
-14,
-18,
27,
-39,
-24,
6,
12,
-38,
-3,
-4,
-75,
-11,
-14,
-60,
-25,
2,
-12,
-14,
30,
28,
-9,
-58,
-8,
9,
-25,
-19,
25,
-3,
40,
38,
-5,
21,
14,
-59,
12,
-3,
39,
34,
21,
32,
-3,
37,
62,
-18,
5,
16,
-11,
0,
-16,
-6,
-8,
23,
-3,
1,
-9,
43,
-52,
-33,
5,
20,
-65,
-17,
-3,
39,
-2,
0,
44,
41,
0,
0,
-18,
-42,
12,
3,
50,
17,
7,
4,
1,
0,
11,
-69,
36,
10,
-17,
31,
-18,
-22,
-25,
-35,
4,
15,
45,
4,
-34,
14,
-50
] |
MR. JUSTICE FREEBOURN:
Defendant and appellant was convicted of committing lewd and lascivious acts upon a child under the age of sixteen years and appeals from such conviction.
Under cross-examination defendant, not charged with a prior conviction, was asked if he had ever been convicted of a felony. He answered, “Yes.” Later, over objection, the prosecution was permitted to place in evidence and read to the jury the following document:
“United States of America v. “John Coloff (Indicted as John K. Coloff, alias Ivan Koleff,) No. 7194, Criminal Indictment in three counts for violation of U. S. C. Title 11, Sec. 52b.
“Judgment and Commitment.
“On this 5th day of May, 1943, came the United States Attorney and the defendant, John Coloff, appearing in proper person and by his counsel, Mr. Leo C. Graybill.
“And the defendant having been convicted on the verdict of guilty of the offenses charged in the Indictment in the above entitled cause, to-wit: That on or about the 29th day of August, 1940, and continuously thereafter up to and including the date of the filing of the Indictment herein, near Geraldine, in the County of Chouteau, in the State and District of Montana, and within the jurisdiction of this court, while a bankrupt, the said defendant did unlawfully, knowingly, fraudulently, and feloniously conceal from the Trustee in bankruptcy in a bankruptcy proceeding theretofore instituted in this court by the said defendant, certain property belonging to the estate in bankruptcy of him, the said defendant, that is to say, the Southeast quarter of Section 15, in Township 23 North, of Range 13 East of the Montana Principal Meridian, in Chouteau County, Montana, consisting of 160 acres of land of the approximate value of $650.00, and the South Half of Section 22, in Township 23 North, of Range 13 East of the Montana Principal Meridian, in Chouteau County, Montana, consisting of 320 acres of land of the approximate value of $1243.00, as charged in count one of said Indictment; and (2) that on or about the 29th day of August, 1940, and continuously thereafter up to and including the date of the filing of the Indictment herein, at Great Palls, in the State and District of Montana, said defendant did unlawfully, knowingly, fraudulently and feloniously conceal from said trustee in said bankruptcy proceeding certain other prop erty belonging to Ms said bankrupt estate, to-wit, the sum of $260.06 in lawful money of the United States, as charged in count two of said Indictment, and (3) that on or about the 29th day of August, 1940, at Great Falls, in the County of Cascade, in the State and District of Montana, and within the jurisdiction of this court, before the Referee in Bankruptcy in said bankruptcy proceeding, the said defendant did unlawfully, wilfully, corruptly, fraudulently, knowingly, feloniously testify falsely and make a false oath in relation to his said bankruptcy proceeding, as charged in count three of said Indictment, all in violation of Title 11, Section 52b, U. S. C.
"And the defendant having been now asked whether he has anything to say why judgment should not be pronounced against him, and no sufficient cause to the contrary being shown or appearing to the court, It Is By The Court
"Ordered And Adjudged that the said defendant, John Coloff, having been found guilty of said offenses, be and he hereby is committed to the custody of the Attorney General of the United States or his authorized representative, for imprisonment for the term of Two (2) Years And Four (4) Months and pay a fine of Five Hundred ($500.00) Dollars; and that said defendant be further imprisoned until payment of said fine or until said defendant be otherwise discharged as provided by law.
"It is further ordered that the Clerk deliver a certified copy of this Judgment and Commitment to the United States Marshal or other qualified officer and that the same shall serve as the Commitment herein.
"/S/ Charles N. Pray, Judge.”
R. C. M. 1947, see. 93-1901-11, provides: "A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony.”
R. C. M. 1947, see. 94-4723, provides: "A person convicted of any offense is notwithstanding a competent witness in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his examination as such witness. ’ ’
When the credibility of a witness is attacked under these statutes it has long been the uniform trial practice in Montana to ask the witness, on cross-examination, in substance, “Have you ever been convicted of a felony?” If the answer is “Yes,” further examination along this line is foreclosed. If the answer is a denial, the conviction can then be shown by the record of the judgment.
This is sound practice and should be followed. The purpose of the statutes, weakening the credibility of the witness, is satisfied and chance for error is eliminated. It is the natural, practical and best way of handling the matter.
The meaning or construction given these statutes is presumed to be the true one, even when the language has popularly a different meaning. 25 R. C. L., sec. 273, pp. 1042, 1043.
The practical construction given a statute for a long period of time has been considered strong evidence of the meaning of the law. ‘ ‘ Indeed, the practical construction of a statute, or the meaning publicly given it by contemporary usage, is usually presumed to be the true one. It should not be disturbed, disregarded, or overturned, * * * except for cogent or convincing reasons * * *”. 50 Am. Jur., Statutes, see. 319, pp. 309, 310, 311.
“The natural and, ordinarily, the easiest way to prove them [prior convictions], if true, is by the witness himself, but the party ought not to be deprived of his statutory right by the falsehood of the witness.” Helwig v. Lascowski, 82 Mich. 619, 46 N. W. 1033, 1034, 10 L. R. A. 378. See also, Burdette v. Commonwealth, 93 Ky. 76, 18 S. W. 1011.
“The record of conviction may be introduced after the witness has denied having been convicted * * 28 R. C. L., sec. 213, p. 627.
“The usual manner of making proof of a prior conviction is to ask the witness who has suffered such a conviction if he had been theretofore convicted of a felony, and, if he denies that he has been so convicted, to produce a copy of the judgment of conviction * * People v. Craig, 196 Cal. 19, 235 Pac. 721, 724.
A defendant in a criminal case, if he is sworn and testifies, is subject to the same rules of cross-examination and impeachment as any other witness. State v. Schnepel, 23 Mont. 523, 59 Pac. 927; State v. Crowe, 39 Mont. 174, 102 Pac. 579, 18 Ann. Cas. 643; and State v. O’Neill, 76 Mont. 526, 248 Pac. 215.
If the defendant does not take the stand, a prior conviction may not be shown to impeach him. State v. Jones, 51 Mont. 390, 153 Pac. 282.
The effect of showing a prior conviction, for the purpose of impeachment, is much different as between the defendant and a witness for the defendant, as said in State v. Hougensen, 91 Utah 351, 64 Pac. (2d) 229, 239, “such questions as to a defendant may directly prejudice the jury in the case, whereas in case of a witness not a defendant they do no more than prejudice the jury against such witness and thus less directly affect the case.”
When defendant admitted his prior conviction, the purposes of the statutes were served. His credibility had been impeached and weakened. To go further and introduce the judgment showing such prior conviction could serve no good purpose.
“* * * what good ground can there be for demanding the record? To do so is to do more than has been done; but, if there is a negative answer, the record of conviction is an effective impeachment # * # the fact of that assault, and his conviction of it, was as well known to him and his confession of it as of as high quality and probative force as the record itself, and the reason for the rule requiring the record in this case we think entirely fails; and the admission by parol was as near the fact as the record could be. Rules of evidence are adopted for practical purposes.” Dotterer v. State, 172 Ind. 357, 88 N. E. 689, 693, 30 L. R. A., N. S., 846.
A felony judgment in a district court of Montana does not set out the facts and circumstances of the crime charged. It goes no further than to name the offense.
The federal court judgment and commitment placed before the jury here showed defendant to have been convicted of three felonies and set out the facts and circumstances constituting each offense.
Details and circumstances comprising the prior offenses are not admissible. See: People v. Chin Hane, 108 Cal. 597, 41 Pac. 697; People v. Muchupoff, 79 Cal. App. 306, 249 Pac. 240; People v. David, 12 Cal. (2d) 639, 86 Pac. (2d) 811; and People v. Braun, 14 Cal. (2d) 1, 92 Pac. (2d) 402. See also: Wharton’s Criminal Evidence, 11th Ed., Vol. 3, Witnesses, sec. 1374, p. 2261.
The only witness testifying to seeing defendant commit the acts charged was the prosecutrix. On the day and immediately after such crime is said to have been committed, the prosecutrix met sheriff Dunstall. He testified: "I asked her if she had been down to the Rex Hotel, and whether or not she had been molested. She stated that she had not. I asked her if Mr. Coloff had molested her in any way. She stated that he had given her a dollar to go to the Fair, that her mother was down at the Fair.”
There was some corroborating evidence as to words spoken in the room where, and about the time, the criminal acts are said to have been committed.
Under the evidence the judgment of prior conviction weighed heavily against defendant. It may well have been the deciding factor which brought about his conviction. It was prejudicial error to admit it in evidence.
Appellant complains of the trial court’s refusal to give several instructions offered by defendant. Two of these, respecting the withdrawal of the judgment of prior conviction from the consideration of the jury, should have been given. The other instructions were properly refused.
■ For the reasons stated the judgment is reversed. The case is remanded for a new trial.
MR. JUSTICE BOTTOMLY concurs.
|
[
61,
-16,
-5,
22,
19,
-60,
-7,
21,
-8,
-14,
17,
-38,
-8,
-7,
7,
-31,
-60,
-33,
42,
-35,
-27,
-25,
-79,
13,
29,
-14,
-7,
54,
-48,
17,
14,
9,
0,
-61,
36,
60,
107,
-50,
34,
-5,
10,
5,
-12,
-28,
2,
6,
13,
-26,
6,
-10,
87,
5,
80,
-26,
-44,
-14,
39,
11,
-33,
-9,
-15,
24,
40,
-60,
19,
-53,
71,
10,
10,
8,
28,
-5,
-58,
0,
22,
0,
-38,
-13,
39,
50,
-8,
21,
-11,
3,
-43,
-8,
42,
-7,
10,
0,
-13,
-28,
-10,
-26,
-14,
-79,
-37,
-27,
-23,
-14,
47,
-64,
-31,
44,
52,
-15,
-75,
-14,
-5,
36,
8,
8,
57,
-13,
49,
-46,
24,
20,
-21,
-35,
-32,
13,
1,
25,
15,
0,
-59,
21,
36,
-15,
10,
-14,
6,
-19,
-31,
-5,
-56,
-3,
9,
-34,
3,
-55,
-7,
55,
14,
-18,
-4,
-5,
-19,
48,
-52,
2,
30,
18,
45,
45,
-17,
-22,
1,
6,
-9,
-57,
9,
4,
51,
-5,
-25,
23,
-11,
-53,
-4,
74,
-21,
14,
43,
-9,
18,
-62,
26,
82,
-1,
11,
-41,
2,
-4,
26,
-11,
46,
1,
-1,
-2,
26,
56,
-17,
12,
8,
14,
-32,
5,
15,
2,
-7,
39,
2,
1,
-16,
65,
23,
59,
-31,
37,
-23,
-4,
2,
-41,
-41,
-14,
-7,
9,
21,
7,
-11,
-7,
6,
63,
-31,
19,
29,
-24,
2,
-17,
-24,
-2,
1,
41,
-44,
-53,
-14,
-25,
42,
-49,
-74,
69,
-77,
24,
30,
-30,
0,
-33,
-2,
15,
1,
-43,
49,
-67,
10,
29,
-27,
14,
-1,
-9,
13,
28,
-2,
-61,
6,
-16,
5,
-43,
-15,
66,
0,
-11,
26,
-27,
16,
-9,
55,
-23,
-57,
44,
-26,
46,
1,
35,
-47,
0,
-32,
-37,
-25,
-48,
7,
-11,
-39,
25,
0,
8,
37,
-30,
-12,
3,
35,
-11,
71,
-2,
17,
23,
30,
-56,
-10,
43,
-14,
39,
-17,
9,
-6,
35,
18,
26,
0,
-28,
-25,
-27,
-12,
-17,
-19,
-21,
-1,
4,
44,
-10,
-44,
-23,
-2,
-20,
-11,
1,
18,
-29,
76,
11,
0,
31,
-41,
-6,
45,
19,
30,
-36,
-11,
25,
-47,
39,
-48,
-54,
27,
-62,
-55,
35,
-15,
36,
-6,
12,
-14,
-24,
32,
-19,
-27,
11,
-1,
47,
-47,
4,
-7,
10,
-3,
24,
-1,
-14,
33,
-21,
-21,
-25,
56,
55,
15,
6,
-26,
2,
7,
-31,
37,
28,
13,
26,
34,
4,
0,
32,
-44,
42,
14,
43,
12,
-5,
-12,
-26,
23,
28,
-52,
59,
-1,
-13,
-33,
34,
-37,
-28,
-19,
-17,
-36,
55,
57,
55,
-31,
53,
9,
3,
-13,
-5,
-11,
38,
24,
-20,
1,
37,
-30,
-22,
66,
17,
-35,
-8,
14,
45,
22,
2,
-39,
-4,
2,
43,
15,
-9,
-17,
8,
-105,
-13,
40,
31,
2,
-56,
-46,
33,
-11,
74,
-68,
42,
-16,
-6,
-13,
-10,
25,
-41,
12,
-55,
-8,
-31,
26,
14,
5,
-68,
-12,
-22,
0,
-25,
-13,
49,
-61,
-29,
-2,
45,
-9,
-53,
-6,
-56,
28,
15,
21,
-26,
5,
69,
0,
-65,
-23,
0,
46,
17,
-6,
37,
7,
-39,
33,
28,
-8,
-21,
-33,
0,
-1,
51,
-5,
5,
47,
33,
27,
21,
56,
-4,
-38,
-18,
-29,
-20,
-25,
-52,
-34,
-38,
40,
88,
2,
34,
21,
-14,
-29,
14,
-25,
7,
14,
-22,
-49,
19,
24,
42,
-31,
24,
18,
6,
46,
-77,
36,
19,
-16,
-51,
3,
40,
-5,
8,
-47,
-35,
-65,
0,
-38,
26,
-38,
8,
5,
19,
17,
-40,
1,
-19,
26,
13,
15,
59,
6,
-5,
-16,
-51,
-1,
15,
18,
17,
-17,
-37,
-15,
-8,
-12,
15,
-13,
-55,
54,
-30,
5,
-42,
-5,
20,
36,
29,
35,
50,
13,
-52,
33,
75,
62,
16,
28,
39,
54,
-6,
-45,
-5,
-7,
-30,
-58,
1,
25,
18,
-51,
-53,
-22,
-5,
-13,
-34,
-18,
-28,
11,
-10,
30,
-14,
-23,
12,
-37,
-12,
-3,
-3,
-12,
-35,
24,
-9,
-52,
42,
20,
-19,
-6,
41,
2,
-2,
-56,
-33,
21,
40,
-1,
11,
-16,
-14,
-33,
52,
-12,
19,
-15,
-12,
2,
-46,
-47,
-58,
0,
-30,
-33,
50,
-8,
65,
-61,
-27,
-23,
-8,
42,
21,
41,
22,
23,
-31,
20,
-8,
0,
10,
75,
-2,
14,
10,
-66,
22,
-6,
-27,
-14,
-15,
22,
-19,
-15,
10,
-22,
-20,
-18,
-39,
70,
5,
70,
-80,
-43,
18,
-56,
-23,
64,
-18,
-16,
-13,
24,
12,
-14,
24,
50,
13,
-9,
75,
4,
-4,
69,
26,
91,
9,
11,
-27,
-18,
28,
-26,
-8,
0,
-37,
-31,
24,
-30,
-22,
-33,
4,
60,
36,
-1,
-2,
-18,
67,
-41,
-78,
-6,
0,
-10,
-31,
2,
-66,
44,
24,
-68,
-13,
3,
-48,
-8,
-45,
-25,
0,
31,
37,
6,
53,
-23,
-35,
32,
-28,
-44,
-14,
32,
35,
-70,
41,
-8,
-13,
26,
-10,
9,
-48,
-20,
-28,
2,
-7,
12,
-68,
-58,
-24,
-2,
12,
-6,
29,
-6,
-24,
88,
-42,
74,
-8,
-33,
-5,
-26,
3,
-74,
5,
-11,
46,
9,
35,
13,
9,
69,
25,
-61,
44,
-44,
29,
-10,
-2,
8,
-40,
25,
49,
-22,
-35,
89,
27,
47,
17,
-42,
39,
9,
-4,
27,
54,
-40,
91,
16,
-71,
34,
-3,
-21,
14,
9,
-13,
-5,
-21,
-28,
6,
16,
20,
10,
88,
-42,
8,
50,
-25,
-6,
28,
18,
6,
-1,
-16,
-32,
28,
76,
1,
-39,
-36,
-23,
-49,
23,
16,
-7,
24,
-35,
21,
-23,
-10,
-12,
0,
-30,
32,
29,
6,
8,
75,
28,
28,
-34,
19,
-64,
13,
-9,
90,
39,
26,
-21,
28,
12,
-56,
16,
-6,
18,
4,
4,
-12,
4,
21,
64,
-50,
-43,
24,
-52,
-70,
61,
-22,
74,
1,
-46,
4,
10,
16,
-55,
20,
-27,
37,
4,
-10,
9,
14,
67,
-50,
-69,
33,
-13,
-9,
63,
4,
64,
-26,
-63,
18,
52,
7,
-5,
12,
104,
-52,
18,
-14,
11,
5,
37,
-5,
25,
-40,
-4,
-16,
8,
11,
-27,
15,
-13,
26,
-30,
-18,
-20,
-19,
10,
53,
-41,
-23,
18,
41,
-39,
26,
-26,
-31,
0,
15,
-21,
46,
-72,
-36,
-36,
-10,
-44,
-55,
-15,
-7,
2,
-13,
33,
-26,
-50,
13,
8,
0,
6,
-11,
-40,
11,
26,
3,
38,
-92,
12,
-4,
78
] |
PER CURIAM.
Certiorari. This court caused to be issued and .served upon respondents its writ of certiorari returnable July 10, 1951. On trial day respondents interposed a motion to quash the writ. It was also represented to the court and conceded by the parties litigant that subsequent to application made to this court for the writ that the parties had entered into a stipulation for the utilization of the range involved for the season of 1951 and had posted bonds and it appearing that the issue presented to the court at the time it issued the writ has now become moot;
It is ordered that the motion to quash be granted and that the proceedings be dismissed.
|
[
14,
-31,
63,
45,
18,
23,
-21,
-1,
22,
-20,
-39,
7,
-91,
-3,
11,
55,
9,
-18,
45,
-40,
-18,
28,
23,
-12,
1,
-31,
7,
13,
-21,
3,
6,
-12,
-26,
7,
-21,
-47,
15,
1,
6,
22,
8,
59,
-36,
-4,
-15,
-39,
-48,
35,
4,
12,
31,
-7,
-21,
-17,
-125,
-39,
-66,
-48,
-11,
-16,
0,
10,
29,
1,
-14,
15,
50,
-9,
7,
36,
23,
4,
15,
31,
35,
-15,
-40,
14,
-56,
16,
-4,
76,
56,
24,
-38,
-31,
17,
1,
34,
15,
-51,
-37,
-43,
-42,
-42,
-17,
9,
-55,
4,
30,
1,
-4,
30,
-45,
2,
-48,
-48,
25,
-1,
30,
39,
8,
-72,
-5,
-6,
39,
-15,
2,
43,
9,
0,
12,
-41,
24,
-57,
7,
-77,
50,
53,
16,
-55,
-11,
-20,
33,
7,
-36,
31,
-7,
-15,
-45,
34,
0,
34,
17,
55,
-34,
3,
39,
-33,
21,
0,
39,
0,
41,
41,
26,
-28,
-13,
-26,
-4,
0,
7,
-100,
-35,
22,
-1,
-19,
-49,
3,
-62,
-33,
4,
70,
28,
-47,
-11,
21,
5,
39,
85,
-18,
30,
40,
-22,
20,
28,
-54,
43,
-9,
33,
8,
-10,
67,
-12,
-18,
-10,
8,
5,
-28,
56,
-47,
-25,
-32,
-46,
-19,
29,
-23,
-9,
19,
-3,
-20,
-20,
14,
-23,
2,
21,
-3,
38,
58,
42,
11,
-19,
23,
57,
41,
-47,
-48,
22,
9,
37,
21,
16,
14,
-37,
74,
-35,
10,
19,
41,
19,
4,
-11,
48,
-53,
-19,
9,
53,
56,
43,
38,
1,
6,
-32,
-6,
-7,
43,
9,
-5,
22,
-87,
14,
19,
31,
-38,
-29,
4,
32,
-17,
59,
17,
-3,
-14,
0,
27,
58,
8,
-15,
-60,
0,
-3,
-8,
14,
-20,
9,
-44,
-2,
-29,
-52,
0,
-17,
-33,
53,
4,
-10,
5,
30,
-31,
20,
-17,
-30,
10,
44,
6,
-30,
-51,
-12,
0,
-1,
-6,
-24,
-24,
62,
105,
-14,
-59,
43,
-8,
-23,
-2,
-72,
-56,
0,
14,
49,
-20,
36,
0,
37,
-11,
-13,
31,
16,
0,
16,
17,
54,
-41,
-17,
20,
46,
84,
59,
-10,
39,
-37,
-28,
37,
6,
7,
28,
-92,
16,
-57,
-76,
19,
-14,
12,
-38,
-15,
-26,
1,
-30,
43,
-26,
54,
0,
-29,
-20,
-15,
-16,
-38,
52,
38,
1,
13,
6,
39,
-14,
11,
4,
-44,
18,
1,
49,
15,
67,
50,
64,
-11,
-41,
-16,
-26,
-27,
19,
-16,
20,
19,
15,
-29,
28,
-19,
-11,
-51,
-17,
54,
-46,
8,
74,
6,
40,
29,
5,
32,
10,
53,
0,
-45,
30,
7,
-8,
32,
-14,
-33,
30,
-81,
-13,
60,
-44,
15,
-16,
-4,
-12,
-15,
39,
-27,
78,
-17,
-19,
11,
32,
4,
-15,
-9,
30,
-35,
4,
-16,
43,
8,
3,
-34,
-20,
-5,
-30,
-32,
14,
63,
14,
-56,
11,
30,
1,
2,
-49,
-5,
-1,
13,
10,
0,
29,
72,
-10,
34,
37,
-100,
2,
1,
-22,
10,
-40,
15,
4,
-16,
-41,
-55,
-23,
-3,
59,
29,
18,
5,
-72,
1,
23,
-50,
-53,
-52,
-76,
-23,
32,
30,
1,
0,
23,
47,
51,
0,
-10,
-12,
-28,
0,
-2,
-2,
14,
57,
37,
10,
24,
6,
7,
-3,
-29,
-47,
-17,
36,
17,
22,
10,
16,
-11,
-74,
-23,
-50,
-52,
-13,
14,
-5,
26,
-25,
-37,
-19,
44,
9,
27,
25,
10,
-2,
-38,
-4,
7,
17,
49,
-7,
6,
-84,
-41,
-9,
-5,
11,
-49,
53,
-31,
8,
12,
-33,
63,
-32,
16,
0,
46,
4,
-33,
10,
-8,
54,
-15,
11,
4,
10,
20,
-13,
26,
-76,
-4,
4,
13,
-20,
38,
12,
24,
-80,
-23,
44,
-26,
9,
24,
-15,
-10,
31,
62,
-39,
15,
-9,
46,
-12,
24,
-25,
41,
3,
24,
66,
52,
0,
4,
9,
-72,
8,
-2,
1,
-15,
-12,
10,
-49,
11,
12,
21,
-75,
1,
21,
16,
16,
25,
-25,
-34,
-7,
-29,
-5,
48,
-14,
-18,
5,
-30,
0,
-82,
-29,
23,
40,
-3,
2,
-12,
36,
-6,
-6,
-27,
36,
18,
56,
-55,
47,
-17,
-4,
-44,
-17,
-41,
27,
22,
-58,
14,
8,
-4,
-13,
5,
30,
-37,
31,
-11,
30,
23,
-19,
-72,
-10,
3,
-3,
43,
73,
6,
-13,
8,
-31,
57,
-16,
-20,
16,
9,
-8,
-28,
-16,
-21,
-15,
22,
44,
15,
3,
47,
-9,
4,
-5,
-15,
-1,
-10,
-71,
-37,
-22,
-37,
5,
-61,
31,
9,
-1,
-69,
59,
34,
-2,
63,
-20,
43,
-21,
-12,
62,
53,
-12,
25,
2,
-19,
-6,
-48,
-6,
-33,
-14,
-87,
-9,
20,
-1,
-4,
-13,
-14,
-10,
14,
-28,
17,
15,
-45,
-3,
24,
24,
-10,
-33,
-16,
21,
-2,
9,
35,
-80,
-14,
-49,
19,
-13,
-30,
-17,
48,
22,
3,
53,
-22,
25,
-38,
-14,
-8,
23,
37,
-61,
-16,
-21,
-16,
81,
5,
-21,
5,
3,
-9,
31,
-34,
2,
4,
-11,
-37,
-39,
-6,
14,
15,
-37,
7,
36,
-11,
24,
8,
-3,
-13,
-24,
-7,
-13,
11,
-55,
-13,
-58,
-19,
17,
-44,
-8,
-44,
10,
79,
7,
36,
43,
1,
55,
7,
1,
2,
44,
-24,
-21,
-12,
16,
-71,
-3,
-22,
-1,
22,
-37,
13,
26,
-1,
41,
1,
-43,
31,
-25,
0,
-13,
23,
54,
40,
-9,
-20,
17,
-57,
19,
-34,
-29,
-17,
39,
-45,
34,
-29,
-24,
8,
54,
35,
1,
0,
5,
7,
-12,
5,
61,
-51,
33,
-8,
-29,
-43,
-57,
-38,
17,
-8,
1,
-68,
-82,
0,
28,
1,
-32,
64,
44,
-11,
46,
-25,
-12,
57,
33,
52,
37,
40,
12,
72,
-26,
-26,
21,
22,
-8,
-1,
-56,
-38,
18,
8,
34,
-44,
4,
-30,
64,
-2,
-36,
-2,
42,
14,
31,
-35,
4,
33,
7,
-20,
-15,
-41,
-12,
-15,
-20,
-13,
28,
25,
-79,
-25,
16,
29,
-15,
6,
-46,
11,
18,
3,
12,
-2,
-21,
-6,
-44,
4,
13,
66,
79,
-28,
-5,
11,
27,
-12,
13,
0,
-15,
18,
42,
7,
64,
38,
66,
16,
34,
-17,
-68,
41,
22,
54,
32,
-60,
27,
-59,
-5,
-20,
-5,
-33,
-11,
-16,
24,
-35,
7,
-46,
15,
-43,
-9,
6,
-21,
45,
-44,
-28,
-26,
-68,
-17,
-15,
8,
14,
-84,
1,
-27,
-48,
1,
0,
-18,
-40,
18,
-18,
11,
-70,
31,
2,
14,
-26
] |
MR. JUSTICE FREEBOURN:
Plaintiff and respondent, a member of the Retail Clerks International Association, Local Union 991, of Missoula, Montana, was employed as an apprentice alteration clerk and then as a journey woman alteration clerk, by defendant and appellant in her fur and dress shop in Missoula.
During the years 1946, 1947, 1948 and 1949, the union and defendant signed written agreements covering defendant’s employees, including plaintiff, all members of the union, as to minimum wages, hours of labor, and other conditions. Under these written agreements and contracts, plaintiff was entitled to a weekly wage equal to the minimum weekly wage set out therein. These written agreements were lived up to and carried out by defendant, except in one particular: She paid plaintiff from two to six dollars less per week than the minimum weekly wage called for.
Plaintiff brought this action to recover an amount equal to the difference between what she was actually paid and what the minimum wage clause in the written agreements entitle her to, and her attorney’s fee for prosecuting such action.
The ease went to trial before a jury but the court took it from the jury and directed judgment for plaintiff in the amount of $783.54. From this judgment defendant appeals.
Defendant contends that in each of said years, and within a few days after the written agreements were signed, she entered into an oral agreement with the union’s business agent, whereby she was permitted to and did pay plaintiff a weekly wage, which was less than the minimum provided for in such written agreements, such weekly wage so paid being an amount which defendant deemed plaintiff’s services to be worth. The union’s business agent denies making such oral agreements.
Such oral agreements, if made, were void. The business agent was not authorized to make them. They would have the effect of nullifying the minimum wage scale provisions in such written agreements and contracts, insofar as plaintiff is concerned.
The right of the plaintiff to the minimum weekly wage provided for in the written agreement was an individual right and it could not be taken away by any agreement between defendant and a union official. Piercy v. Louisville & N. R. Co., 198 Ky. 477, 248 S. W. 1042, 33 A. L. R. 322.
Defendant breached the written union contract by failing to pay to plaintiff the minimum weekly rate of wages agreed upon therein, and plaintiff had the right to sue for the difference between the amount actually paid her and the amount due her under the contract. Reichert v. Quindazzi, Mun. Ct., 6 N. Y. S. (2d) 284; McNeill v. Hacker, City Ct., 21 N. Y. S. (2d) 432.
The parties agreed that summarizations, made by a public accountant from defendant’s records, showing the actual wages paid plaintiff, could be used by the trial court in determining the difference between the amount actually paid her and the amount due under the written contract.
There being no questions of fact to be decided by the jury, the court, properly, took the case from it.
We find no merit in any other assignment of error made, and for the reasons stated affirm the judgment of the lower court.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES METCALF, BOTTOMLY and ANGSTMAN concur.
|
[
15,
-32,
-79,
-13,
38,
-50,
82,
-35,
-57,
58,
5,
54,
31,
-55,
-19,
-15,
18,
4,
19,
-29,
-16,
-61,
-24,
-58,
7,
37,
-36,
-71,
-33,
38,
-56,
78,
-31,
-67,
-83,
4,
11,
0,
-48,
0,
37,
-11,
27,
-17,
24,
1,
51,
-24,
36,
3,
44,
-5,
-43,
-26,
-11,
27,
33,
-27,
-62,
46,
-24,
27,
97,
7,
3,
-43,
34,
15,
-14,
-23,
-5,
-33,
23,
-7,
-24,
-81,
-1,
3,
-36,
52,
9,
-16,
-32,
-41,
-33,
71,
-43,
32,
24,
-9,
-5,
-10,
31,
34,
22,
6,
-54,
-14,
-5,
-8,
2,
-33,
-30,
23,
-10,
8,
-39,
-14,
-56,
88,
-32,
44,
75,
41,
46,
26,
54,
-15,
28,
14,
65,
18,
-60,
-25,
-38,
-30,
-48,
26,
-22,
-32,
20,
8,
-18,
24,
29,
22,
-40,
-34,
1,
22,
17,
-47,
-51,
4,
3,
-44,
-35,
21,
-89,
-20,
6,
8,
117,
0,
4,
-40,
44,
-19,
51,
-25,
19,
-25,
3,
19,
14,
-8,
0,
-7,
11,
-62,
-6,
-40,
49,
-26,
10,
41,
11,
-53,
-15,
-4,
-34,
-34,
-99,
-10,
28,
18,
14,
-18,
41,
-1,
-16,
-16,
-3,
-10,
28,
-31,
-5,
14,
24,
-20,
57,
38,
-40,
54,
2,
11,
-10,
-30,
27,
17,
22,
-52,
19,
-42,
-14,
40,
55,
6,
-83,
-50,
-17,
-42,
-3,
11,
-57,
-59,
25,
0,
67,
0,
-51,
34,
20,
4,
54,
13,
19,
-20,
10,
18,
-70,
-11,
-4,
43,
-17,
-43,
-78,
-2,
-9,
11,
-8,
16,
-3,
38,
-52,
0,
8,
47,
-35,
-29,
-11,
37,
21,
22,
-28,
-30,
6,
44,
-3,
21,
21,
11,
56,
-17,
-22,
1,
-34,
-17,
8,
-30,
-18,
-27,
-60,
-54,
20,
-25,
-10,
-32,
-37,
18,
-3,
-16,
-15,
-25,
50,
15,
5,
76,
-68,
4,
-52,
-34,
48,
39,
-60,
40,
-59,
7,
-6,
16,
-59,
0,
-8,
-11,
37,
31,
-10,
-10,
37,
-16,
33,
58,
14,
23,
34,
-14,
-63,
-34,
-11,
-29,
16,
-14,
9,
12,
5,
-17,
45,
25,
-7,
8,
50,
44,
35,
-36,
-50,
21,
-1,
0,
-7,
-41,
26,
-4,
-29,
-8,
34,
31,
0,
-2,
-43,
9,
7,
12,
-11,
-61,
-55,
40,
-18,
30,
5,
27,
13,
33,
22,
-53,
-46,
8,
23,
6,
-44,
71,
-8,
-59,
-31,
-25,
52,
18,
5,
-49,
-19,
-40,
-73,
18,
17,
94,
25,
62,
7,
-4,
-31,
6,
46,
22,
3,
-9,
-23,
16,
22,
-21,
-106,
41,
35,
4,
-67,
31,
-39,
-59,
36,
-11,
-5,
8,
23,
42,
20,
18,
-1,
-33,
37,
47,
-39,
4,
-22,
13,
-14,
-84,
-2,
-8,
-21,
23,
-58,
-16,
13,
21,
-27,
-37,
30,
22,
-38,
-11,
56,
-29,
20,
-16,
1,
9,
75,
-6,
-43,
50,
41,
12,
-23,
27,
21,
7,
54,
-18,
55,
-3,
-42,
74,
-18,
20,
38,
-12,
-10,
-5,
-56,
-82,
2,
38,
39,
46,
12,
41,
7,
-27,
-42,
-76,
18,
1,
38,
-15,
19,
0,
4,
-14,
8,
19,
4,
23,
-50,
16,
54,
-33,
-23,
-3,
9,
-67,
33,
-64,
-4,
34,
66,
-33,
6,
31,
-12,
99,
-53,
24,
-40,
42,
19,
18,
-7,
-34,
-61,
20,
-23,
12,
-50,
55,
5,
28,
21,
-20,
67,
11,
9,
-28,
-27,
10,
-11,
33,
-34,
-14,
-5,
43,
57,
43,
38,
-44,
0,
5,
10,
60,
35,
38,
28,
29,
11,
38,
-21,
26,
41,
76,
-9,
-19,
55,
-2,
-55,
-2,
-19,
-6,
-24,
-33,
-21,
-28,
2,
6,
39,
-10,
21,
-42,
-52,
-54,
42,
-49,
0,
48,
-54,
-27,
-47,
-6,
48,
-19,
2,
-44,
17,
18,
44,
40,
-35,
7,
-31,
-25,
-22,
-5,
42,
15,
1,
-13,
-43,
18,
-21,
-33,
-15,
-22,
46,
-2,
78,
55,
29,
-32,
3,
-4,
-11,
-43,
-24,
-19,
-13,
-56,
57,
-52,
-8,
28,
40,
10,
-21,
-30,
-1,
-40,
42,
33,
-66,
17,
18,
48,
-29,
-9,
7,
25,
54,
-24,
3,
-6,
-20,
-4,
-51,
-19,
3,
23,
-42,
9,
0,
26,
33,
-44,
-2,
-10,
23,
-11,
21,
24,
47,
-32,
0,
-7,
6,
-6,
-13,
-34,
57,
38,
-38,
3,
63,
-22,
-13,
-80,
52,
14,
-53,
-17,
43,
-5,
23,
-1,
-54,
-23,
-13,
-48,
22,
17,
-34,
22,
-87,
-36,
0,
39,
54,
-58,
-47,
42,
53,
17,
-47,
65,
-29,
23,
16,
-11,
64,
20,
-21,
-10,
18,
-10,
-11,
31,
35,
24,
-17,
-14,
21,
-30,
10,
-37,
-15,
27,
19,
24,
-1,
-41,
-35,
0,
3,
-53,
-11,
2,
-18,
36,
-20,
-7,
9,
-12,
-21,
4,
-35,
6,
-2,
33,
36,
31,
40,
20,
14,
-44,
37,
-36,
-23,
-15,
-3,
13,
37,
-5,
18,
34,
-38,
-20,
72,
3,
11,
3,
-43,
25,
6,
-14,
26,
8,
-43,
24,
-4,
-35,
-42,
25,
-64,
10,
-39,
-26,
-47,
-21,
-22,
27,
46,
-40,
16,
-11,
20,
15,
-82,
-26,
6,
-11,
21,
-9,
17,
39,
-24,
31,
-20,
11,
0,
35,
46,
-72,
-94,
1,
-20,
11,
-18,
30,
-15,
19,
-32,
69,
-17,
-30,
11,
-30,
61,
-23,
-36,
28,
-6,
4,
-25,
93,
15,
-24,
-4,
25,
54,
53,
22,
-27,
1,
-39,
1,
11,
17,
17,
-26,
16,
-2,
35,
-22,
-12,
22,
-8,
2,
31,
23,
4,
3,
-11,
53,
26,
35,
55,
11,
44,
12,
15,
-9,
22,
5,
67,
-16,
41,
-14,
-53,
10,
-3,
35,
-69,
10,
-71,
7,
-26,
58,
17,
-16,
21,
21,
-4,
-32,
1,
23,
29,
14,
-44,
-20,
8,
8,
38,
-50,
80,
2,
0,
-42,
-30,
-21,
-12,
14,
42,
-10,
20,
-52,
43,
-13,
-8,
114,
12,
10,
20,
2,
2,
-45,
-1,
-60,
9,
60,
-62,
-15,
5,
-59,
-20,
81,
-18,
3,
88,
47,
95,
3,
-32,
-2,
-19,
16,
-12,
-33,
42,
37,
-25,
5,
-18,
56,
-11,
57,
-15,
-1,
-61,
42,
0,
-13,
48,
-31,
-32,
6,
20,
21,
7,
-24,
33,
9,
-24,
-12,
-64,
7,
-24,
34,
-7,
-29,
-33,
-14,
-89,
46,
-59,
45,
-37,
-59,
51,
-56,
-28,
-65,
-16,
48,
-33,
-9,
23,
-9,
2,
15,
-12,
13,
-3,
-66,
-12,
-39,
-13,
-3,
3,
-6,
17
] |
MR. JUSTICE METCALF:
The information charges that between July 25, 1949, and October 28, 1949, the defendant corruptly and unlawfully attempted to influence Matthew Vook, a grand juror, in respect to his decision, judgment or report in certain matters concerning the defendant then pending before, and being investigated by the grand jury, “by means of oral communications not in the regular course of proceedings of said Grand Jury, by means of threats, intimidation, persuasion and entreaty and by means of promises to pay to said Matthew Vook, as such juror, lawful money of the United States.” The defendant was convicted and from the judgment of conviction brings this appeal.
Other questions concerning the same grand jury have been before this court in State ex rel. Adami v. Lewis and Clark County, 124 Mont. 282, 220 Pac. (2d) 1052; State ex rel. Porter v. District Court, 124 Mont. 249, 220 Pac. (2d) 1035; and State ex rel. Porter v. First Judicial District, 123 Mont. 447, 215 Pac. (2d) 279. In the latter two cases the defendant at bar was the relator.
On May 19, 1950, six days prior to his trial, the defendant challenged the entire trial jury panel under the provisions of Chapter 71, Title 94, R. C. M. 1947. The basis for the challenge •was that the court had excused and dismissed so many of the trial jurors that the panel consisted of but 23 jurors and that after those jurors who were subject to challenge for cause were excused there would not be a sufficient number of' regularly impaneled jurors to try the ease and therefore the court would draw additional trial jurors from jury box No. 3 to the detriment of defendant.
At the hearing on the challenge counsel for the defendant, Stanley M. Doyle, testified that on March 29, 1950, a panel of 70 jurors was called for the term. By May 24, 1950, 47 jurors had been excused so that on that date but 23 jurors' remained to try the case. (On the day of trial this number had been reduced to 21.) Of the remaining jurors, five were subject to challenge for cause. The witness gave the names of these jurors and re cited the facts upon which such a challenge would be based and they appear to be sufficient to sustain such a challenge under R. C. M. 1947, secs. 94-7119, 94-7120.
Under the provisions of R. C. M. 1947, sec. 94-7115, the defendant was allowed six peremptory challenges and by section 94-7116 the state a like number. Therefore if the remaining jurors were all satisfactory for cause to the state and defendant, and the defendant exercised his six peremptory challenges the panel would be insufficient even though the state did not take a single peremptory challenge.
In State v. Hay, 120 Mont. 573, 194 Pac. (2d) 232, 235, this court reaffirmed the principle laid down by the Montana territorial supreme court that a “defendant has a right to an impartial jury’ ’ selected from the proper place and drawn and summoned according to law. Dupont v. McAdow, 6 Mont. 226, 229, 9 Pac. 925, 926. Repeatedly this court has required the trial court to substantially comply with the statutes in procuring a jury. Any material deviation or departure is a denial of fundamental constitutional rights. State v. Groom, 49 Mont. 354, 359, 141 Pac. 858; State v. Tighe, 27 Mont. 327, 71 Pac. 3.
“The right to a trial by jury is an undisputed right, and in order that this right may be preserved to parties interested, it is a self-evident proposition that the law of their procurement must be observed. This form of trial is bjr the county, and those serving must be selected from the duly qualified 'citizens of the county.” Kennon v. Gilmer, 4 Mont. 433, 455, 2 Pac. 21, 24.
In order to carry out the constitutional guarantee that the accused in a criminal prosecution shall have a right to “a speedy public trial by an impartial jury of the county” (Const. of Montana, Art. III, sec. 16), the legislature has provided that the names of all eligible jurors of the county be placed in jury box No. 1. R. C. M. 1947, sec. 93-1404. It is from the names in this jury box that the trial jury is drawn and summoned. R. C. M. 1947, sec. 93-1502.
The statute also provides that the clerk of court must keep a box known as jury box No. 3 in which duplicate ballots containing the names of all persons qualified as trial jurors who reside in the city or town where the trial term is held. R. C. M. 1947, sec. 93-1506.
The trial court may in its discretion direct the clerk to draw additional jurors from jury box No. 3 when a sufficient number of trial jurors to form a jury do not attend or cannot be obtained without great delay or expense. R. C. M. 1947, sec. 93-1510.
The trial judge is allowed considerable discretion within the statute. But jurors may only be drawn from jury box No. 3 in case the emergency set out in the statute occurs, i. e., insufficient trial jurors and great delay or expense in procuring additional jurors in the ordinary manner, “the evident intent and purpose of the Legislature being to guaranty to every person a trial by a jury called by lot from the whole body of qualified jurors in the county.” State v. Landry, 29 Mont. 218, 224, 74 Pac. 418, 420. Thus after part of the trial jury is impaneled it would cause undue delay to require the sheriff to find and serve jurors in the outlying reaches of the county and cause extraordinary expense in that the members of the jury would be idle while the additional jurors were being obtained. But section 93-1510 does not authorize the court to resort to jury box No. 3 merely because serving prospective jurors residing at a distance from the county seat or paying mileage fees to such jurors will incur additional expense.
As was pointed out in Lee v. Hayden, 63 Mont. 589, 595, 208 Pac. 596, 597, the court's discretion is a reasonable one and must be exercised in a reasonable manner to carry out the purpose and intent of the Constitution and the statutes, “which it is assumed will not be abused, as, for example, by drawing-in the first instance a very small and insufficient panel from box No. 1, and then under the emergency which the court itself has created, drawing- the major portion of the panel from box No. 3.”
In the instant case the panel was not ample for all ordinary purposes; its inadequacy was called to the attention of the court six days before the ease was to be tried. There is nothing in the record to show any sudden emergency justifying denial of defendant’s motion to obtain additional jurors from jury box No. 1. This defendant was of the beliéf that a “Main Street” jury would be antagonistic to him and he made a timely request to have the venire augmented by additional jurors drawn from the entire county. This was his right under the Constitution and under the statutes. Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21. Failure to provide an adequate panel was an abuse of discretion and amounted to the systematic and calculated exclusion of persons residing throughout the county at large other than those living in the city of Helena. This practice was condemned in State v. Hay, 120 Mont. 573, 194 Pac. (2d) 232, and eases therein cited. The difference between the instant case and State v. Hay is that in the latter case the challenge was interposed on the day set for trial and securing jurors from jury Box No. 1 would cause undue expense and delay within the meaning of the statute and therefore the challenge came too late. State v. Pippi, 59 Mont. 116, 195 Pac. 556. Here the challenge to the panel was interposed in time to have secured additional jurors in the statutory manner.
This court in State ex rel. Adami v. Lewis and Clark County, 124 Mont. 282, 220 Pac. (2d) 1052, determined that the term of the grand jury of which Matthew Yook, the prosecuting witness, was a member, expired by operation of law on September 11, 1949.
The statutory definition of embracery is corruptly attempting to influence a grand juror so that the offense may be committed even though the offender fail to accomplish his object. R. C. M. 1947, sec. 94-806. But even an attempt must be directed at an object upon which it is possible to commit the crime. 1 Burdick, Law of Crime, secs. 143, 144; 14 Am. Jur., Criminal Law, sec. 70, p. 818.
After September 11, 1949, Matthew Vook was no longer a grand juror; he had been discharged by operation of law. Therefore, even though the defendant thought he was influenc ing a grand juror in actuality lie was not and the crime of embracery could not be committed. State v. Taylor, 345 Mo. 325, 133 S. W. (2d) 336.
All evidence of acts committed after September 11, 1949, should have been excluded and the time during which the defendant allegedly attempted to influence grand juror Vook limited to the period when Vook was a duly and regularly impaneled grand juror.
A motion for a new trial was made upon the ground that the verdict was contrary to the evidence. This motion was overruled. Specification of error No. 2 assigns error for overruling such motion and specification No. 3 recites that “the verdict is contrary to the evidence and the law.” These specifications were not urged in the appellant’s brief.
A good part of the evidence introduced related to conversations between the defendant and grand juror Vook after the discharge of the grand jury. Since it is impossible to determine the effect- of this evidence on the minds of the jurors this alone would justify reversal. But disregarding such inadmissible evidence, there are acts that took place before the discharge of the grand jury which would sustain a conviction, so that we cannot say as a matter of law that the cause should be dismissed. Vook testified that the defendant came to see him on July 25,1949, and they talked for half to three-quarters of an hour. At this time Porter declared to Vook that he was the victim of a frameup. Two or three days later Porter asked Vook to try to keep Porter’s name out of the paper. The second conversation was longer; according to Vook it “wasn’t much over an hour.” Porter told Vook, “If you will help me, I’ll help you.” There followed some conversation about the losses in wages that Vook was suffering as a result of his serving on the grand jury. Vook testified that it was in connection with this part of the conversation that Porter had said he would help Vook out. Then Vook said, * * I thought it was nothing but a joke from the start.” Later on during Vook’s cross-examination the following testimony was elicited:
‘£ Q. Mr. Porter never offered yon any money, did lie ? A. Not money, but he told me that one time he would help me to make up my losses if I lost money on this.
“Q. And didn’t you testify yesterday that you thought that was a joke? A. I thought it was at, first but after I thought it over I thought probably it wasn’t.”
The defendant’s own testimony on direct examination contains significant admissions.
”Q. Now, Mr. Porter, directing your attention to a statement made by the forgotten man in this case, Matthew Vook. Mr. Vook testified that he had told you that his service on the grand jury was costing money, costing him money. Is that right ? A. That is correct.
“Q. What was the conversation that resulted from that statement by Mr. Vook,- when he made it to you, if you can remember, as near as you can remember, where you were and exactly what was said and the manner and fashion in which it was said. A. Well, he told me, as close as I can remember — now, I don’t want to be — ■
“Q. Your best recollection. A. He told me, when I met Mr. Vook, I think I asked him when this jury, grand jury, was going to end, I think I’ve asked everybody that, and he told me that he wished it would end. He said: ‘ It is costing me money and has cost me enough to serve on this grand jury. ’ He said: ‘I’m losing $6.00 a day,’ or something like that, ‘for not being able to work at the smelter.’ I sympathized with him on that point and of course, I don’t ever remember of saying that I would make up the difference in salary although I was awful desperate at the time but I’m sure I never offered him any money or anything like that; I am positive of that. I think Mr. Vook testified to that.”
There were other conversations between Vook and defendant that may or may not be pertinent as the record does not indicate when they took place. During the course of the trial evidence of conversations between the defendant and other members of the grand jury was admitted. These conversations were introduced for the purpose of showing the intention of the defendant. The defendant didn’t deny most of the acts upon which the state relied; Indeed he voluntarily admitted most of them. But defendant did insist that he never corruptly intended to influence Matthew Vook or any other members of the grand jury.
The defense proffered correct instructions informing the jury as to the purpose of such evidence, but these instructions were refused. Instead the court gave an instruction which was misleading. It may be that on a new trial this issue may not arise for many of the acts took place after September 11, 1949, but if conversations with other grand jurors occurring before September 11, 1949, are admitted in evidence, the jury’s consideration of them must be limited as suggested by instruction offered by defendant. '
In its proof that the defendant had talked to other members of the grand jury the foreman, James W. Salsbury, was permitted to testify to conversations he had had with the defendant. Mr. Salsbury testified on direct examination as a witness for the prosecution that he listened to a tape recording made by the defendant of a conversation between special prosecutor Small and Small’s secretary. The court refused to let the defense cross-examine Salsbury as to the content of this recording and refused to let the defendant testify as to its contents or allow the recording to be played to the jury.
The defendant sought to introduce three other recordings for impeachment purposes. One was a recording of a conversation between the defendant and deputy sheriff Higgins, which the defendant wished to use to impeach testimony given by Higgins on direct examination. Higgins testified to a conversation with Porter at Porter’s garage. The defendant wanted to introduce the recording to show that Higgins had made contradictory statements different from those sworn to on the stand.
Higgins on direct examination testified that he never told Porter that one, Tom Alley, was at a meeting in the Helena valley at which the foreman of the grand jury, the special prosecutor and Higgins were present. Higgins then testified that Porter offered him $1,000 to say that Alley was present at that meeting. It was to refute this and to prove that the witness Higgins had said that Alley was present and that no bribe was offered that the defendant sought to introduce the recording of the conversation.
The second recording was of a telephone conversation between the defendant and grand juror Harold H. McClellan. This conversation took place on May 25, 1950, a few days before the trial. In order to lay a foundation for impeachment on cross-examination McClellan was asked if in his telephone conversation he did not tell Porter that he had not been offered a bribe. McClellan denied that he had made that statement. The defendant then sought to have the witness identify his voice on the recording and subsequently the defendant made an offer of proof that the recording of the telephone conversation would reveal that McClellan had stated that Porter “had not tendered anything of value, money, or anything else to the said McClellan and repeatedly during a twelve minute conversation reaffirmed and restated that he, the said McClellan, had not been influenced, coerced, threatened or bribed in any manner or fashion by the defendant Roger Porter herein. ’ ’
The third recording was of a conversation between the special prosecutor and the foreman of the grand jury and the defendant sought to introduce contradictory statements.
The most common form of impeachment is to discredit a witness by proof of other inconsistent or contradictory statements. Such contradictory statements bear directly on the credibility of the witness.
The defendant’s offer of proof recited that the recordings of telephone conversations were obtained without violation of Montana statutes and the other recordings were the original unaltered recordings and were a complete record of the conversations.
The objections to their admissibility were not based upon any exception to the admissibility of recordings as such. Both parties concede that mechanical reproductions of sound are competent evidence providing that an adequate foundation is laid to insure their accuracy and reliability. See Annotation in 168 A. L. R. 927.
The state’s objections were that these recordings were incompetent, irrelevant and immaterial; that they related to collateral matters; that they were hearsay and not the best evidence; and that they violated “the right of privacy guaranteed by the Constitution, federal and state; and that the recordings of telephone conversations are in violation of the federal communications act pertinent to the federal statute.”
The three recordings sought to be introduced for impeachment purposes were not subject to the hearsay rule. They were offered to show that inconsistent and contradictory statements relative to the same matter testified to on direct examination had been made by the witnesses. The credibility of the witnesses was challenged. The question was not whether the statements were true or not. There was no attempt to prove the facts in the statements but the fact that the staements were made. If the witness did make contradictory statements the party challenging the credibility of such witness should be allowed to prove the fact that such contradictory statements were made. The best evidence is a properly authenticated voice recording of the witness making the contradictory statements. The jury who heard the witness testify that he did not make such a statement hears in the witness’s own voice with inflections and overtones that can’t be reproduced in any other manner. Counsel for defendant makes an analogy of a writing that contains a contradictory statement. Such a writing can be introduced even though the person who read it or observed it being written is present in court to testify. The three recordings should have been admitted for impeachment purposes. Calumet Broadcasting Corp. v. Federal Communications Comm., 82 U. S. App. D. C. 59, 160 F. (2d) 285, 288. Nor does the record indicate that there was a violation of any state or federal statutes in making the recording of the telephone conversation. The offer of proof states that the recording was made in compliance with the rules of the Montana public service commission.
Similarly the recording which the defendant played to the foreman of the grand jury allegedly to improperly influence him should have been admitted. If it was relevant for the foreman to testify that the defendant attempted to improperly and corruptly influence his vote as a grand juror by playing the recording, it was proper for the jury to hear the recording that allegedly had such an effect. Otherwise the jury was permitted to conjecture as to the content of the recording and to imagine that it contained material greatly at variance with what the playing of the recording would actually have disclosed.
Throughout the ease the defendant insisted that he was the victim of a conspiracy on the part of the special prosecutor, some of the grand jury, and Tom Alley. The defendant contended that Tom Alley was using the grand jury’s investigation to gain control of the operation of slot machines in and around Helena. The defendant stated that his only purpose was to get the members of the grand jury to consent to his appearance before them to tell his side of the story. That contention may have been a red herring that was totally unworthy of belief, or it may have impressed the jury with its truth. Here where the defendant’s motive and intent was the primary issue in dispute it was certainly appropriate to let the defendant prove his theory as best he could, especially when the whole field had been opened by the prosecution. It was error not to permit the defendant to play the recording that would have given him a chance to develop his defense. Whether such a defense was worthy of belief or not was a matter for the jury to decide.
The defendant sought to introduce in evidence the complaint filed by Porter in an action in which he sued the members of the grand jury and others for $150,000. This was the complaint involved in State ex rel. Porter v. First Judicial District, 123 Mont. 447, 215 Pac. (2d) 279, which was deemed contemptuous and which this court declared to be scandalous and defamatory. The members of the grand jury admitted that they were prejudiced by the filing of that action and angered by the allegations in the complaint. The only purpose that the introduction of the complaint could have served would have been to show the bias and prejudice of the grand jurors who were witnesses against the accused. When they admitted that the filing of the suit and the charges made therein had angered them there was no reason to admit the complaint. State v. Jackson, 9 Mont. 508, 24 Pac. 213.
The defense requested an instruction as to the effect of accomplice testimony. There was evidence in the record from which the jury might have concluded that deputy sheriff Higgins was an accomplice of the defendant. That being the situation the court should have informed the jury that if they believed Higgins to have been an accomplice of the defendant, they were instructed to weigh his evidence as provided by R. C. M. 1947, sec. 93-2001-1, subd. 4, and that such evidence must be corroborated as required by R. C. M. 1947, sec. 94-7220.
The defendant was charged in the information with a violation of R. C. M. 1947, sec. 94-804, which provides in part that a person who corruptly attempts to influence a grand juror, “By means of any communication, oral or written, had with him except in the regular course of proceedings, ’ ’ is punishable by fine or imprisonment. The defendant complains that the court failed to define what was a communication not “in the regular course of proceedings.” No instruction defining this term was offered by the defendant and he cannot raise this question for the first time on appeal. State v. Powell, 54 Mont. 217,169 Pae. 46; State v. Francis, 58 Mont. 659,194 Pae. 304; State v. McCarthy, 36 Mont. 226, 92 Pac. 521. Furthermore there is no evidence in the record which would lead the jury to believe that the defendant’s communication was with Vook in the regular course of proceedings. The state’s evi denee was that the defendant had conversed with Vook privately at the latter’s home and this conld not be construed to be in the regular course of proceedings.
The judgment is reversed and the cause remanded with directions to grant the defendant a new trial.
ME. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICES BOTTOMLY and ANGSTMAN, concur.
|
[
50,
8,
-14,
23,
6,
-35,
-40,
-23,
-52,
-13,
36,
14,
0,
-75,
16,
1,
1,
4,
101,
-74,
5,
-28,
-8,
-26,
-22,
-34,
-21,
54,
-55,
-69,
69,
12,
2,
-26,
-10,
-39,
126,
42,
-33,
-21,
10,
-7,
-17,
34,
5,
22,
-1,
-32,
-20,
-17,
57,
21,
4,
83,
5,
-35,
-25,
-29,
-9,
-17,
33,
-8,
40,
-30,
-27,
-46,
40,
-45,
-4,
2,
-29,
-31,
30,
25,
45,
-54,
-43,
-4,
-14,
47,
-10,
30,
9,
12,
-5,
1,
18,
-47,
-10,
22,
2,
-20,
8,
2,
48,
-85,
-14,
1,
-2,
0,
19,
-42,
-72,
-55,
61,
5,
-67,
10,
28,
42,
-103,
1,
-31,
-27,
-40,
-22,
-59,
-46,
-79,
-74,
-10,
-21,
-23,
3,
-39,
26,
-46,
-4,
-20,
-24,
3,
5,
54,
-23,
-55,
-18,
2,
-65,
52,
-22,
-26,
45,
-19,
-43,
-20,
45,
-37,
70,
5,
35,
-41,
-23,
1,
43,
0,
-67,
-8,
-36,
66,
16,
12,
7,
-25,
-37,
-3,
11,
-45,
-23,
18,
-17,
-59,
32,
12,
-12,
-21,
-20,
9,
-22,
-4,
37,
-7,
76,
-17,
18,
-14,
4,
-31,
46,
47,
-7,
27,
8,
42,
-60,
16,
19,
16,
45,
55,
27,
15,
0,
-58,
7,
9,
8,
5,
-52,
44,
8,
-30,
-27,
44,
12,
-23,
-44,
-61,
-10,
22,
-51,
-24,
22,
-22,
20,
-9,
-23,
36,
30,
-3,
14,
12,
19,
-34,
14,
-31,
-22,
9,
10,
-4,
52,
-63,
-52,
86,
5,
-14,
71,
-60,
10,
-34,
22,
2,
20,
4,
9,
-45,
65,
22,
-35,
-6,
-63,
15,
-19,
23,
58,
-39,
0,
27,
42,
-1,
1,
6,
-41,
2,
-21,
16,
22,
-57,
16,
-33,
22,
-12,
-21,
2,
3,
-6,
0,
-23,
26,
-8,
-39,
23,
36,
23,
-22,
54,
70,
4,
43,
50,
-2,
-16,
-16,
44,
-11,
11,
5,
-3,
-91,
-35,
-36,
55,
46,
47,
-73,
32,
41,
-10,
0,
59,
1,
29,
1,
-6,
-13,
22,
-5,
3,
-27,
39,
-3,
-19,
20,
-18,
-3,
35,
-82,
26,
-25,
-22,
57,
11,
-47,
-18,
25,
-8,
23,
-39,
25,
-59,
-48,
5,
52,
8,
0,
1,
2,
-26,
-22,
37,
-64,
-6,
-14,
-25,
7,
-18,
8,
-20,
-18,
27,
5,
-27,
-30,
17,
-62,
37,
7,
-27,
5,
-8,
20,
-71,
33,
-1,
-41,
21,
4,
24,
4,
-21,
24,
44,
46,
-61,
-4,
59,
30,
-17,
-45,
10,
2,
-42,
15,
-21,
-12,
-35,
23,
-57,
42,
10,
-45,
30,
-1,
79,
-3,
79,
-39,
-10,
40,
15,
1,
53,
12,
22,
83,
33,
1,
23,
24,
10,
-7,
-32,
-8,
24,
-10,
4,
48,
8,
-37,
40,
-33,
47,
-2,
3,
23,
59,
-18,
-30,
3,
45,
55,
-33,
22,
39,
9,
14,
27,
53,
6,
19,
2,
18,
-9,
-29,
-37,
81,
2,
-8,
-2,
-14,
24,
9,
18,
22,
-22,
-7,
46,
-7,
-5,
69,
-15,
-10,
4,
-28,
-4,
-31,
-23,
22,
-57,
6,
12,
17,
2,
-13,
22,
-27,
-6,
-8,
-3,
16,
49,
-53,
-15,
0,
15,
-6,
7,
115,
-48,
4,
25,
53,
21,
-25,
50,
21,
-20,
34,
36,
-10,
-11,
31,
-74,
3,
45,
-54,
-2,
21,
2,
9,
-73,
-20,
-12,
-35,
24,
50,
12,
20,
-63,
-28,
-62,
34,
-16,
28,
0,
16,
-34,
-22,
-29,
47,
-39,
6,
6,
-11,
3,
-40,
-5,
8,
-52,
-58,
-14,
-14,
22,
7,
-17,
-45,
21,
-26,
-37,
25,
-16,
55,
44,
-42,
23,
17,
23,
-10,
33,
-1,
26,
43,
-11,
-21,
9,
-12,
27,
11,
46,
-10,
43,
-50,
-3,
20,
-29,
27,
-24,
-15,
14,
-30,
29,
-30,
-12,
-48,
11,
-17,
-13,
17,
0,
-36,
9,
8,
-1,
-8,
37,
13,
59,
-54,
-47,
-65,
3,
47,
-11,
22,
-27,
58,
-8,
-41,
-39,
-46,
-66,
5,
5,
-14,
11,
-62,
-14,
-12,
8,
-21,
12,
62,
74,
25,
-47,
7,
-44,
11,
-17,
6,
-20,
-44,
-13,
14,
-47,
38,
-66,
26,
-6,
12,
-3,
11,
27,
6,
-4,
18,
-38,
93,
2,
7,
1,
-25,
-90,
59,
-3,
10,
-47,
-1,
-3,
-37,
-77,
0,
-3,
9,
-25,
-20,
39,
-29,
-35,
-2,
42,
13,
39,
-9,
33,
0,
-10,
61,
-46,
-2,
17,
-23,
-7,
-4,
18,
-4,
-4,
1,
-28,
28,
-27,
2,
32,
-32,
-10,
2,
-97,
-9,
-4,
-47,
29,
-24,
-12,
23,
38,
17,
-4,
59,
11,
11,
-12,
26,
-10,
-33,
31,
8,
20,
-5,
-50,
-1,
-25,
-7,
-26,
8,
-86,
-6,
-12,
15,
-67,
-9,
-16,
61,
70,
81,
-13,
-31,
71,
-31,
41,
-51,
-10,
55,
3,
45,
-65,
-32,
7,
47,
-12,
30,
-21,
-96,
-18,
51,
10,
-43,
-2,
6,
14,
-1,
48,
27,
98,
-37,
-19,
70,
18,
38,
47,
3,
58,
1,
-26,
-18,
26,
-38,
-48,
-31,
9,
39,
-26,
50,
38,
93,
9,
-16,
-36,
46,
-61,
-13,
-18,
-38,
30,
-29,
22,
-5,
-45,
-60,
-48,
14,
-21,
21,
-9,
27,
-52,
1,
9,
-22,
17,
-26,
24,
27,
10,
17,
1,
-21,
2,
9,
51,
-71,
67,
33,
28,
-4,
-12,
8,
-7,
-11,
-12,
2,
8,
51,
32,
-78,
-76,
-43,
21,
44,
22,
49,
17,
-3,
29,
-8,
1,
24,
-40,
67,
-114,
0,
31,
21,
-8,
26,
0,
26,
7,
-5,
-4,
29,
16,
5,
28,
0,
-36,
29,
0,
25,
15,
6,
38,
-33,
8,
-20,
-6,
30,
-18,
30,
0,
7,
20,
69,
14,
17,
-24,
6,
-18,
2,
-18,
-5,
50,
46,
-55,
25,
21,
-31,
-28,
4,
43,
5,
-4,
-14,
35,
-19,
47,
25,
-63,
-6,
-61,
20,
13,
-31,
-57,
-14,
-41,
-44,
65,
-27,
-34,
-25,
20,
26,
-20,
11,
-14,
40,
26,
-59,
-23,
0,
46,
0,
-5,
-1,
22,
36,
54,
14,
2,
60,
-19,
-42,
24,
-2,
23,
73,
-10,
-60,
-26,
62,
23,
66,
0,
18,
-50,
45,
-20,
11,
-32,
18,
-38,
20,
61,
28,
30,
-12,
14,
-89,
-13,
0,
56,
-38,
12,
16,
24,
-5,
39,
-47,
-49,
41,
-7,
-1,
-3,
-32,
-71,
4,
-6,
44,
33,
78,
8,
30,
-68,
-5,
-23,
-20,
-13,
48,
-5,
-26,
-67,
-77,
44,
-59,
0
] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
This is an appeal from an order from the District Court, Fourth Judicial District, Sanders County, denying defendants’ motion for a change of place of trial from Sanders County to Missoula County.
On June 10, 1977, the plaintiff filed his complaint, setting forth two claims against the defendants. The first claim alleges that in March 1975 the defendants entered into an agreement with the plaintiff Clark Fork to purchase certain concrete production and distribution equipment and supplies from Clark Fork for a stated price. The agreement called for defendants, Williams and Atlas to take immediate possession of all the equipment and supplies, for Williams and Atlas to assume certain accounts payable by Clark Fork and for Williams and Atlas to enter into a written contract and security agreements with Clark Fork to embody the oral agreement. Based upon the oral contract, it is alleged that Williams and Atlas took possession of the equipment and supplies in March 1975 in Sanders County from Clark Fork.
It is also alleged that thereafter the defendants refused to enter into a written agreement or to provide security agreements, that they have kept the production and distribution equipment and supplies, and that they have not paid the creditors of the plaintiff that defendants agreed to pay. In essence it is alleged that the promises were made by way of fraud to induce the plaintiff to turn over the property to the defendants. The first claim asks for damages for the value of the property, and also for exemplary damages against the defendants.
The second claim alleges much of what is set forth in the first claim. However in the second claim it is further alleged that as part of the oral agreement in March 1975, Clark Fork executed and delivered to the defendants an assignment of its rights in a certain purchase agreement with a third company, Inland Terminal Warehouse Company, by virtue of which assignment Atlas Concrete and Paving, Inc. was substituted in the place and stead of Clark Fork Paving, Inc. in whatever rights and responsibilities plaintiff had with respect to the Inland Terminal contract.
The second claim seeks a cancellation of the written assignment and the return of the goods received thereunder, if any, to the plaintiff Clark Fork.
The summons was served on June 10, 1977 upon the defendants, each in Missoula County, personally upon the defendant, Williams, and upon Atlas by serving Williams as its president.
On June 23, 1977, the defendants each appeared and moved the court for an order changing the venue of the cause from the County of Sanders to the County of Missoula. The motion is supported by an affidavit of the defendant, Williams, who states that the defendant Atlas is a Montana corporation with its corporate offices located in Missoula County, Montana and that he personally is a resident of Missoula County, Montana.
The plaintiff responded to the motion for change of venue by filing two affidavits, each in effect stating that a substantial portion of the personal property covered in the plaintiff’s first claim was at the time the complaint was filed located within Sanders County; that the repudiated contract was negotiated in Sanders County and that the payments under the contract were to be made to the plaintiff in Sanders County; further, that the assignment which is the subject of the second claim was also negotiated and delivered in Sanders County.
The defendants filed a brief opposing a motion for a change of venue but did not appear to argue the matter on July 12, 1977, the date set for the hearing on the motion for change of venue. Moreover, no further evidence by way of testimony or affidavit with respect to the motion was presented by the defendants at that time, so that the affidavits of the plaintiff remain uncontroverted.
On July 12, 1977, the district court denied the motion for change of venue.
On July 18, 1977, the defendants filed a motion to dismiss the complaint of the plaintiff on the general grounds that the complaint failed to state a claim against .the defendants upon which relief .could be granted. That motion was presented to the district court and overruled on July 26, 1977.
On August 5, 1977, the plaintiff filed his motion to sever the second claim of the complaint for separate trial by the court. On August 9, 1977, the defendant filed a notice of appeal on the order of the court denying the motion for a change of venue.
On the day before the notice of appeal was filed, plaintiff had filed his first request for admissions, addressed to the defendants.
On August 9, 1977, the district court set a date for hearing the motion to separate the second claim for trial for August 23, 1977. This was done on the ground that under section 93-8011, R.C.M. 1947, it was possible for the district court to proceed as to matters not embraced in the appeal, even though an appeal was pending from the denial of the motion of change of place of trial. This hearing date was later postponed to September 27, 1977. In the meantime, the defendant applied to this Court for an order staying proceedings in the district court pending appeal and that order was granted by this Court on September 6, 1977. On September 9, 1977, the defendants filed their answers to the request for admissions which the plaintiff had previously served upon them.
The principal question for us to decide is the propriety of the order of the court denying the motion for change of place of trial. Depending on the answer to that question, we can determine whether the subsequent actions of the district court in handling the case were proper, or whether defendants waived the venue issue.
Section 93-2904, R.C.M. 1947, provides:
“In all other cases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, * * *. 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; * *
Possibly no statute has spawned more litigation in this state than section 93-2904 relating to the proper place of trial. Year after year we are called upon to interpret anew what are seemingly simple code provisions, and to explain again the impact of our decisions under the statute. Out of the mountain of cases that have arisen, these rules have visible peaks; The principal rule is that the action shall be tried in the county in which the defendant or any of them, may reside at the commencement of the action. Section 93-2904, R.C.M.1947; Hardenburgh v. Hardenburgh, (1944) 115 Mont. 469, 481, 146 P.2d 151, 155; Love v. Mon-O-Co Oil Corp., (1957) 133 Mont. 56, 319 P.2d 1056. The word “may” found in the performance exception of the statute is to be read as a permissive word, and not as the imperative “must”. See Hardenburgh, supra, 115 Mont. at page 487, 146 P.2d [151] at page 158.
In Hardenburgh, supra, the Court said:
“We further hold that the provisions of the first sentence of [93-2904] applies to all actions upon contract and to all actions for torts but that such provisions are not exclusive, for a tort action may also be tried in the county where the tort was committed and actions on contract may also be tried in the county in which the contract was to be performed provided that the contract sued upon indicates, either in terms or by express implication therefrom, a particular county in which it was to be performed other than the county in. which the defendant may reside at the commencement of the action.” 115 Mont. at pages 487, 488.
In Love v. Mon-O-Co Oil Corp., supra, the Court set out again the rule with respect to the place of trial for action on contracts:
“The law does not require that the parties to a contract agree upon a place for the performance of their contract, but it permits them to so agree. When, at the time of contracting, the parties have agreed upon a particular county wherein they mutually intended their contract was to be performed, such agreement will be respect ed and given effect, for it is a part of the freedom of contract to select the place where a contract shall be performed. In order to give full effect to the mutual intention of parties, the legislature has enacted, as a permissive exception to the general venue rule declared in the first sentence of section 93-2904 an additional provision, appearing in the second sentence of the section, designating the county wherein at the time of contracting, the parties had agreed their contract was to be performed as a proper county for the trial of an action based thereon. This performance exception, however, applies only to such actions as are based upon contracts which plainly show, either (a) by their express terms, or (b) by necessary implication therefrom, that the contracting parties, at the time of contracting, did mutually agree upon a particular county, other than that of defendant’s residence, wherein they intended that their contract was to be performed.” 133 Mont. at page 61, 319 P.2d [1056] at page 1059.
The burden of proof is upon the moving party seeking the change of place of trial, Rapp v. Graham, (1965) 145 Mont. 371, 373, 401 P.2d 579, 581. Whether the order for change of place of trial will be granted depends upon the status of the parties and the pleadings at the time of the motion. Boucher v. Steffes, (1972) 160 Mont. 482, 485, 503 P.2d 659, 660.
When affidavits supplied by one of the parties with respect to the motion of change of place of trial are uncontradicted, the statements of facts set forth therein must be taken as true, Fraser v. Clark, (1954) 128 Mont. 160, 173, 273 P.2d 105, 112. As this Court said in State ex rel. General Oil Corporation v. Kelly, (1933), 94 Mont. 445, 23 P.2d 555, involving the jurisdiction of a justice of peace court, but applicable here:
“When the motion to quash was ruled on by the justice of the peace, the only information before him was that contained in the complaint and affidavit in support of the motion to quash. There being no denial that the contract was made, and hence the obligation incurred, in Lewis and Clark county, and that being the county of defendant’s residence, the action was not properly com menced in Toole county.” 94 Mont. at page 449, 23 P.2d at page 556.
With the statement of the foregoing rules, it follows that the district court was correct in denying the motion for change of venue in this case. Here the contract was negotiated and entered in Sanders County, delivery of the property was made in Sanders County and it appears by necessary implication that the contract itself was to be performed in Sanders County. The instrument of assignment was also negotiated and delivered in Sanders County. Inland Terminal, which the defendants agreed to pay, is not a resident of the State of Montana and so the performance of that particular part of the contract has no bearing in the decision of this case.. It is clear from the status of the pleadings and the uncontroverted facts here that this contract was to be performed in Sanders County. In that case the plaintiff had a choice of which county in which to sue, either in Sanders County, the place of performance or in Missoula County, the place of defendants’ residence. Since the plaintiff has chosen Sanders County, the defendants may not now obtain a change of place of trial to their county of residence.
Since this decides the principal issue in the case, there is no need to discuss the further issues raised with respect to waiver and the subsequent proceedings had in the district court following the denial of change of place of trial.
Affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON and SHEA concur.
|
[
-20,
31,
-34,
48,
0,
15,
-46,
-11,
-20,
38,
-19,
-14,
38,
-23,
-40,
19,
-37,
2,
15,
-14,
10,
-14,
-43,
-51,
-4,
23,
-69,
9,
-16,
20,
-37,
-8,
-16,
-1,
-17,
-6,
18,
62,
1,
-31,
11,
11,
-24,
-1,
46,
-18,
10,
-64,
113,
-7,
55,
32,
-12,
-31,
-46,
7,
-10,
-18,
-50,
-11,
-2,
6,
1,
25,
24,
-79,
26,
-2,
75,
4,
-42,
29,
15,
-36,
53,
-24,
-52,
1,
-26,
40,
14,
-1,
14,
-54,
-18,
57,
-11,
-2,
31,
23,
-31,
-24,
6,
-23,
22,
15,
-32,
9,
-16,
-13,
-56,
-39,
-22,
22,
29,
-15,
4,
1,
15,
52,
35,
-25,
27,
13,
7,
19,
7,
5,
25,
10,
-12,
23,
-51,
4,
22,
-56,
26,
-50,
-14,
-43,
15,
8,
-21,
34,
-7,
35,
4,
12,
-33,
40,
-16,
-10,
-18,
-9,
-16,
39,
18,
-22,
-17,
18,
-72,
-21,
19,
50,
-15,
-24,
32,
-13,
10,
-12,
23,
-11,
70,
3,
-30,
43,
-2,
52,
-4,
-10,
41,
-64,
-14,
6,
29,
12,
0,
-3,
6,
-39,
-24,
-12,
25,
-23,
48,
5,
-2,
14,
5,
16,
-5,
17,
18,
8,
-37,
10,
-37,
-10,
0,
-7,
26,
-25,
35,
7,
6,
0,
20,
-5,
25,
29,
11,
-15,
30,
-40,
14,
19,
-39,
-43,
-11,
-29,
55,
47,
19,
-5,
-27,
17,
6,
-11,
40,
-18,
-37,
-30,
-8,
8,
-38,
-14,
31,
-16,
-43,
61,
6,
-42,
-39,
-3,
-20,
8,
-20,
13,
-13,
4,
-25,
-21,
-29,
37,
3,
-45,
-34,
0,
-62,
-33,
24,
38,
7,
13,
11,
-20,
-57,
-25,
-26,
35,
-11,
21,
34,
42,
-32,
-31,
6,
25,
16,
-15,
12,
-36,
-22,
-36,
60,
39,
-11,
41,
-38,
-28,
-63,
-7,
49,
-58,
22,
-2,
-3,
-1,
-44,
-14,
-26,
-59,
-46,
3,
-51,
-16,
-52,
5,
-10,
39,
9,
17,
-12,
-14,
-19,
0,
8,
26,
60,
-17,
-2,
87,
40,
1,
14,
28,
-23,
-2,
53,
-41,
-17,
17,
-21,
11,
10,
-21,
50,
-10,
-23,
37,
36,
11,
47,
-9,
-20,
24,
10,
31,
22,
9,
8,
-1,
-37,
38,
49,
-22,
-7,
10,
-45,
-22,
39,
-18,
1,
-50,
-36,
7,
-17,
52,
6,
11,
-69,
16,
7,
41,
29,
-7,
-42,
-36,
14,
-2,
12,
-20,
43,
-45,
34,
-10,
55,
35,
-27,
31,
-9,
-40,
-4,
16,
-5,
-64,
-34,
32,
-19,
24,
13,
23,
11,
41,
-4,
14,
21,
-21,
-30,
-49,
1,
-54,
-48,
44,
-55,
-45,
36,
7,
-23,
79,
20,
-13,
-34,
-53,
29,
0,
-27,
-12,
-45,
0,
-58,
55,
-10,
-10,
9,
31,
-31,
-10,
-48,
42,
4,
-2,
-14,
-82,
23,
6,
-2,
0,
23,
0,
-7,
20,
22,
12,
65,
42,
39,
-37,
28,
-44,
-13,
47,
4,
-4,
67,
-21,
18,
-54,
7,
35,
23,
126,
25,
-5,
1,
-15,
0,
-28,
-16,
11,
35,
14,
-46,
13,
50,
-34,
43,
23,
13,
23,
-11,
5,
15,
-20,
0,
7,
9,
45,
24,
13,
-67,
2,
-28,
-4,
-21,
6,
14,
-3,
-40,
104,
45,
-19,
14,
4,
-71,
70,
-6,
77,
10,
28,
26,
9,
-16,
2,
-34,
10,
-23,
7,
58,
0,
-29,
13,
-20,
-6,
-10,
15,
8,
5,
5,
-65,
-16,
-36,
-9,
-11,
-21,
-6,
-18,
-4,
23,
-22,
8,
44,
26,
27,
-12,
-23,
-13,
-17,
-25,
1,
-4,
6,
-33,
-21,
54,
-1,
25,
-27,
3,
26,
-41,
49,
14,
-53,
18,
-8,
-53,
10,
-17,
0,
-53,
-2,
-35,
-79,
-51,
30,
47,
30,
20,
22,
-41,
-5,
-18,
-11,
15,
-8,
17,
0,
10,
0,
56,
-23,
-12,
-36,
-8,
-36,
-10,
-11,
36,
15,
-18,
-3,
-26,
8,
25,
30,
-5,
-20,
46,
13,
22,
-16,
26,
11,
-37,
45,
-28,
-12,
-43,
33,
-56,
-1,
-55,
-2,
9,
11,
-9,
0,
-36,
24,
9,
25,
-18,
11,
-8,
-13,
-25,
6,
1,
7,
11,
49,
58,
-51,
-47,
70,
-3,
-29,
-1,
-32,
-5,
-20,
-24,
-15,
-54,
-15,
49,
-9,
73,
21,
39,
-11,
18,
-1,
11,
-2,
-10,
41,
15,
70,
59,
8,
20,
17,
6,
-28,
48,
-21,
-13,
-38,
-21,
41,
-6,
41,
20,
-24,
-11,
12,
-33,
-22,
14,
35,
64,
35,
-29,
39,
-41,
-16,
6,
13,
12,
-34,
-30,
-13,
-8,
31,
-35,
15,
-55,
-20,
14,
-28,
6,
-15,
10,
-13,
-11,
-31,
-17,
-19,
13,
37,
64,
12,
-39,
1,
-33,
15,
9,
18,
68,
-33,
-11,
0,
-36,
30,
40,
13,
-42,
-23,
-14,
-21,
-14,
18,
1,
-40,
-36,
39,
-23,
16,
29,
-20,
-12,
-29,
-11,
-56,
5,
-15,
43,
-28,
0,
15,
-17,
-5,
14,
-26,
-7,
17,
11,
-14,
-13,
1,
-9,
-1,
-15,
-71,
10,
78,
0,
0,
15,
55,
6,
-41,
-39,
0,
-37,
63,
-11,
-30,
9,
53,
0,
42,
-2,
1,
-11,
-7,
-24,
19,
-26,
-14,
16,
-42,
55,
-6,
-76,
40,
-20,
-21,
-44,
-6,
-42,
8,
-11,
-9,
-46,
10,
-92,
10,
25,
-46,
-4,
31,
0,
4,
71,
23,
3,
-17,
35,
-17,
21,
-30,
26,
-2,
13,
-16,
14,
-4,
-65,
27,
49,
27,
17,
48,
-19,
-6,
-15,
26,
44,
13,
-74,
10,
-6,
-39,
-13,
-46,
-4,
35,
32,
14,
29,
72,
-27,
-43,
15,
2,
52,
18,
41,
29,
20,
8,
-19,
-64,
12,
5,
14,
97,
-50,
-35,
-23,
-47,
-17,
-57,
0,
-24,
10,
28,
-3,
9,
0,
42,
36,
0,
14,
21,
-18,
1,
-17,
-16,
-6,
-3,
-44,
-11,
-24,
-11,
13,
56,
20,
34,
-35,
-13,
-64,
-5,
-40,
20,
-25,
41,
-28,
22,
-16,
-22,
5,
-9,
22,
-20,
-49,
-11,
13,
-30,
53,
-44,
34,
1,
0,
-33,
-5,
55,
-8,
34,
4,
22,
-18,
1,
-16,
9,
70,
-37,
-31,
12,
-42,
-9,
-52,
-2,
-5,
24,
9,
13,
-7,
-16,
-23,
-24,
9,
13,
9,
2,
3,
22,
25,
-11,
7,
40,
-19,
-8,
13,
-43,
-5,
-21,
-16,
40,
34,
-1,
0,
28,
-24,
-42,
0,
-34,
23,
1,
30,
-25,
5,
2,
58,
15,
66,
-5,
0,
-32,
12,
-13,
4,
24,
-39,
21,
-6,
19,
-59,
12,
28,
33
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
Appéllant, Billy Naray Evans, filed a petition for writ of habeas corpus in District Court, Cascade County, alleging he was sentenced for an offense in disregard of an immunity agreement. A hearing on the petition was held on July 18, 1977. On October 19, 1977, the District Court, Honorable H. William Coder presiding, issued a memorandum opinion and order denying the petition.
On October 27, 1977, appellant filed a motion to amend the order denying the petition. The matter was submitted to the District Court upon briefs of the parties. The motion was denied by an order of the District Court dated December 1, 1977.
This Court on May 30, 1978, in Cause No. 13801, issued an order affirming the memorandum opinion and order of Judge Coder denying the writ of habeas corpus.
Appellant lodges this appeal from both the order denying the petition for writ of habeas corpus and the order denying his motion to amend. The appeal will therefore be handled as an original application for supervisory control.
In early February 1974, appellant gave two statements to the office of the Cascade County attorney, Great Falls, Montana, concerning the murder of John Walsh, Jr. At the time of the statements, appellant was in the custody of the Cascade County sheriff’s office on suspicion of felony possession of dangerous drugs. The statements given by appellant were self-incriminating to some extent and, in addition, implicated Andra Phillip Stewart and Larry Vample in the murder. J. Vaughan Barron, appointed counsel for defendant, and Thomas Clary, then a deputy Cascade County attorney, were present at the taking of the statements. Appellant was then released on his own recognizance.
Immediately thereafter, Andra Phillip Stewart was arrested and charged with deliberate homicide and two counts of aggravated kidnapping. Stewart was subsequently incarcerated in the Cascade County jail. Larry Vample was also picked up for questioning concerning the death of John Walsh, Jr.
On June 17, 1974, the Cascade County attorney’s office requested that appellant give deposition testimony to preserve said testimony, should something unforeseen happen to him. Appellant, however, on the advice of counsel for Stewart who was about to go to trial, refused to testify —thus invoking his right against self-incrimination after being advised he might still be subject to further prosecution. Vample also refused to be deposed.
The following day, June 18, 1974, both appellant and Vample were charged with deliberate homicide and two counts of aggravated kidnapping.
On June 19, 1974, appellant retained Ralph Randono as counsel and thereafter entered a plea of not guilty to the charged offenses. On August 19, 1974, appellant was subpoenaed by the State to testify at the trial of Andra Phillip Stewart. A short time later, on August 29, 1974, appellant entered a plea of guilty to mitigated deliberate homicide.
The Stewart trial commenced on September 13; 1974. Appellant testified therein on behalf of the State. Stewart was convicted of the crime of aggravated kidnapping, and was sentenced to 100 years in the Montana State Prison.
Prior to his sentencing, on November 12, 1974, appellant moved to vacate the sentencing and dismiss the three felony counts pending against him, seeking to enforce an alleged immunity agreement between himself and the State. A hearing followed, resulting in the denial of appellant’s motion. Appellant was thereafter sentenced to 40 years in the Montana State Prison.
The critical issue in this case involves a review of a factual or mixed law and a fact determination of whether there existed an immunity agreement between appellant and the State, and if so, the extent and details of the agreement and whether appellant actually complied with the agreement. While six separate issues are set forth, the determination of this critical issue is controlling to the deposition of the case.
Appellant first argues that the District Court erred in finding there was no oral immunity agreement between himself and the State. Appellant’s basic contention is that at the time he gave his original statements to the authorities in February 1974, he was promised total immunity if he would cooperate with the State and give testimony against Andra Phillip Stewart at Stewart’s trial.
The State argues that it can be just as reasonably inferred from all the circumstances that there was no immunity agreement, thus, providing a basis for the District Court’s factual determination:
(a) Appellant replaced his initial counsel at the time of the deposition.
(b) There is no reference to any total immunity agreement on the record.
(c) Appellant pleaded guilty to mitigated deliberate homicide, stating at the time that no promises or representations had been made.
(d) Appellant’s counsel moved the court for an immunity order pursuant to section 95-1807, R.C.M.1947, immediately prior to appellant’s subpoenaed testimony at the Stewart trial.
(e) The total immunity claim first became of record by appellant’s November 6, 1974 motion to dismiss, made approximately two months following the Stewart trial.
(f) Judge Nelson, at the time of appellant’s sentencing, was referring to “immunity” in the sense of a plea bargain, from which appellant received actual benefit.
(g) At the evidentiary hearing held on July 18, 1977, pursuant to appellant’s petition for writ of habeas corpus, appellant’s counsel Randono as well as the State’s attorney testified there was no total immunity agreement.
(h) At the time of the original arrest of appellant, prior to his making the statement, he was held on several felony charges which were later dropped. The alleged immunity claimed could just as well have been plea bargaining on those counts, and appellant failed to prove he had' been given any oral immunity by the office of the county attorney.
The evidence here clearly supports the finding of the trial court that there had been plea bargaining directed at the charges of deliberate homicide and kidnapping charges. Appellant for his testimony against Stewart was allowed to plead guilty to the charge of mitigated deliberate homicide, thereby reducing both the sentence and the possibility of a death penalty.
The trial court’s finding that there was no immunity bargain is entitled to a presumption of correctness on appeal. Anderson v. Gile (1946), 119 Mont. 182, 185, 172 P.2d 583. In reviewing the evidence, all conflicts should be resolved in favor of the determination below. State v. Cor (1964), 144 Mont. 323, 344, 396 P.2d 86. If there is “any substantial evidence” of record tending to support the determination below, this Court should affirm said deter mination upon appeal. State v. Stoddard (1966), 147 Mont. 402, 408, 412 P.2d 827. We find substantial evidence supporting the District Court.
Next appellant argues that during the sentencing, Judge Nelson made certain references to “immunity representations”. Appellant alleges that such statements constituted a factual determination which became res judicata. Thus, it is maintained that Judge Coder was later estopped from resolving, as he did, the issue of immunity by finding that no agreement in fact existed. Appellant cites, in this regard, cases holding that where a question of fact is' distinctly put in issue, litigated and resolved between the parties, the doctrines of res judicata and collateral estoppel preclude relitigation of such issue in future proceedings, even though the cause of action be different. Caterpillar Tractor Co. v. International Harvester (3rd Cir. 1941), 120 F.2d 82; People v. Cornier (1964), 42 Misc.2d 963, 249 N.Y.S.2d 521; State v. Hopkins (1923), 68 Mont. 504, 219 P. 1106.
The State answers that the statements of Judge Nelson do not constitute a factual determination necessary to support estoppel as a matter of law. Hoag v. New Jersey (1958), 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913; 46 Am.Jur.2d, Judgments, § 426; Cf. Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. Judge Nelson found, as a matter of fact, that there was no immunity agreement barring the sentencing of appellant, and we find no error in this finding.
Appellant next argues that District Court erred in finding that even though there was an oral promise of immunity, the promise does not operate as a bar to the prosecution of appellant. Having found no oral promise of immunity but rather a plea bargaining arrangement, this argument is without merit.
Reliance is placed on various state and federal court decisions holding that a prosecutor’s oral promise of immunity, offered in exchange for self-incriminating testimony, is valid and enforceable. The cases cited employ a variety of bases to reach said result.
In People v. Brunner (1973), 32 Cal.App.3d 908, 108 Cal.Rptr. 501, the California Supreme Court, in holding valid as immunity agreement which did not comply with the California Witness Immunity Act, stated:
“* * * It would be anomalous to permit the People, represented by the district attorney, to argue that an earlier agreement entered into by the district attorney was void for lack of compliance with a statute of whose existence the district attorney must have been aware. * * *” 108 Cal.Rptr. 506.
It has also been held that an oral immunity agreement vests in a defendant the equitable right to its enforcement under an express or implied contract theory. Lowe v. State (1909), 111 Md. 1, 73 A. 637. Courts have also noted that public policy and the ends of justice mandate recognition of immunity agreements between prosecutor and defendant, especially because a defendant acting in good faith gives up fundamental and valuable rights in the bargain. State v. Hingle (1961), 242 La. 844, 139 So.2d 205. See, State v. Hargis (Fla.App.1976), 328 So.2d 479, dissenting opinion.
The State answers that there existed no total immunity agreement, but rather, a plea bargain which was fully honored, in full compliance with the law. Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. See also, Application of Parham (1967), 6 Ariz.App. 191, 431 P.2d 86.
It is further noted that there is a line of authority contrary to that advanced by appellant, holding that oral immunity agreements do not operate as a bar to prosecution. As stated by the majority in State v. Hargis, supra:
“An immunity agreement, without the consent of the court, may not be pled in bar of adjudication of guilt * * *. Under an agreement between a state attorney and a defendant, made without the consent of the court, a defendant may be placed on trial in violation of the agreement. * * *” 328 So.2d 480.
See also: Cortez v. State (Okl.Cr.1966), 415 P.2d 196; State v. Crow (Mo.1963), 367 S.W..2d 601.
Appellant further argues, assuming the existence of the immunity agreement, that he complied with his portion of the agree ment by testifying against Stewart and the State should be required to perform its end of the bargain by granting him immunity. Appellant cites People v. Brunner, supra, for the rule that where a defendant performs the specified conditions of an immunity bargain, whether such bargain is valid or invalid, the State will be held to its promise performance.
We find that the only bargain supported by the record is the plea bargain which was fully executed by both sides and that appellant received a reduced charge in return for his testimony and the dismissal of the other felony charges.
During the course of the Stewart trial, the State subpoenaed appellant’s testimony. Appellant argues that his giving testimony in response to the subpoena triggered transactional immunity under section 95-1807, R.C.M. 1947. This section provides:
“Before or during trial in any judicial proceeding a justice of the supreme court or judge of the district court, upon request by the attorney prosecuting or counsel for the defense, may require a person to answer any question or produce any evidence that may incriminate him. If a person is required to give testimony or produce evidence, in accordance with this section, in any investigation or proceeding he cannot be prosecuted or subjected to any penalty or forfeiture, other than a prosecution or action for perjury or contempt, for or on account of any transaction, matter or thing concerning which he testified or produced evidence.”
Appellant relies on State v. Carroll (1973), 83 Wash.2d 109, 515 P.2d 1299, for the proposition that one who is subpoenaed to testify in a criminal proceeding is subject to statutory immunity. However, there are differences between the Washington statute and section 95-1807 that limit the application of the case. The former appears self-executing, requiring no order or action of the court in order that it be invoked. Section 95-1807, in contrast, provides that the judge require testimony upon the application of counsel and must, therefore, be specifically invoked. Here, no such application was made, nor did the district judge specifically order .appellant to testify at the Stewart trial.
Appellant last contends that his guilty plea to mitigated deliberate homicide did not relieve the State from honoring its portion of the alleged immunity agreement. Appellant first contends, in this regard, that his plea was involuntary, being induced by a fear of a possible death penalty under the pending felony counts.
Even assuming the voluntariness of the plea, appellant contends that his performance of the immunity bargain occurred prior to sentencing, thus giving rise to transactional immunity and stripping the State of the power to penalize him.
The State relies on Tollett v. Henderson (1973), 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, in which the United States Supreme Court held:
“* * * When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. * * *” 411 U.S. 267, 93 S.Ct. 1608, 36 L.Ed.2d 243.
The appellant in Tollett sought to raise, in a subsequent habeas corpus proceeding, alleged unconstitutional selection of the grand jury panel which had indicted him. The Supreme Court held this ground was waived by his guilty plea. Tollett is controlling in this case.
The ultimate question in this case is whether there is sufficient evidence of record to support the finding of the District Court that there existed no immunity agreement; that the agreement made was in actuality a plea bargain, which was fully honored.
We find the evidence sufficient and affirm.
MR. CHIEF JUSTICE HASWELL and JUSTICES SHEA and SHEEHY concur.
|
[
14,
-2,
-20,
45,
-19,
-38,
-3,
1,
-63,
37,
-35,
-25,
-12,
-40,
-59,
-5,
-39,
7,
27,
-41,
-1,
-50,
2,
24,
-19,
-45,
-32,
6,
-41,
18,
51,
-16,
31,
-82,
19,
-1,
67,
-26,
26,
58,
9,
29,
-38,
-8,
-25,
-42,
-30,
-14,
32,
-4,
0,
-47,
44,
6,
-10,
24,
20,
-60,
-37,
49,
-60,
0,
-5,
-11,
-4,
-23,
8,
8,
56,
3,
-1,
2,
-55,
51,
-7,
11,
-30,
-43,
38,
41,
-24,
24,
-14,
-23,
-25,
-37,
-30,
-43,
8,
67,
6,
-16,
-19,
10,
9,
26,
-15,
-80,
9,
-36,
-50,
-21,
-17,
-47,
84,
-31,
-23,
11,
39,
36,
3,
38,
26,
-29,
-4,
-76,
11,
-27,
-11,
15,
-18,
56,
53,
44,
-15,
-42,
69,
-14,
51,
-19,
6,
38,
21,
-16,
-14,
22,
-28,
-16,
17,
-14,
-17,
-34,
30,
-2,
43,
13,
7,
-5,
5,
43,
-21,
20,
-12,
35,
-4,
14,
15,
-29,
-27,
17,
48,
-4,
-13,
-5,
17,
-5,
-32,
11,
-35,
14,
0,
14,
-25,
-10,
46,
16,
4,
6,
-1,
15,
-12,
39,
23,
-8,
9,
-1,
14,
51,
12,
0,
-55,
52,
0,
-51,
35,
20,
10,
-40,
7,
-24,
57,
43,
78,
24,
-23,
-28,
47,
-17,
38,
26,
-33,
-53,
-16,
28,
-83,
5,
-34,
-24,
26,
50,
-11,
33,
-14,
21,
-8,
4,
40,
-35,
-39,
-34,
47,
-13,
-23,
49,
-3,
-12,
14,
-13,
18,
6,
-24,
-15,
34,
6,
45,
53,
-1,
-24,
-42,
-32,
15,
22,
-9,
63,
-3,
-49,
35,
-36,
-25,
-45,
6,
5,
9,
34,
-54,
-6,
0,
-30,
14,
14,
48,
-4,
37,
14,
44,
4,
12,
51,
22,
-34,
-9,
-25,
-28,
-7,
38,
-70,
3,
2,
-9,
22,
0,
-49,
8,
-53,
38,
12,
-11,
-48,
9,
-3,
27,
-2,
-15,
0,
-55,
-28,
14,
11,
38,
0,
55,
6,
-56,
1,
-10,
-3,
10,
-18,
33,
-5,
15,
-10,
-4,
-29,
24,
87,
4,
37,
-26,
-2,
26,
18,
-22,
-14,
0,
8,
-4,
5,
4,
33,
-1,
-36,
-44,
20,
-73,
10,
19,
30,
-39,
7,
-4,
-5,
12,
-17,
-4,
-23,
-63,
-23,
22,
-25,
28,
-14,
-54,
-7,
-4,
-31,
8,
3,
22,
6,
-19,
17,
15,
-13,
-24,
16,
11,
4,
-19,
9,
11,
2,
-20,
-2,
-10,
-2,
11,
21,
25,
63,
5,
-10,
14,
-17,
-6,
-13,
-3,
2,
29,
-7,
-33,
38,
41,
-24,
11,
5,
-12,
27,
17,
-41,
1,
26,
18,
54,
27,
-6,
-46,
-15,
-29,
9,
3,
-20,
17,
39,
37,
45,
-17,
-5,
-52,
23,
21,
37,
2,
19,
-1,
-17,
-29,
-12,
35,
-31,
-38,
-71,
22,
-32,
29,
-25,
-2,
-40,
-31,
6,
-23,
-1,
-21,
10,
-15,
57,
-23,
-20,
-1,
6,
0,
13,
21,
29,
72,
18,
-24,
-19,
-10,
-13,
6,
34,
-34,
54,
-13,
2,
22,
71,
12,
56,
8,
-30,
-23,
-20,
7,
45,
20,
-49,
31,
47,
26,
-14,
50,
36,
-11,
43,
44,
-31,
43,
-10,
13,
-24,
-14,
42,
18,
-9,
22,
5,
0,
78,
47,
-15,
-26,
-16,
-87,
18,
41,
0,
-8,
69,
35,
27,
10,
28,
-23,
-23,
0,
-6,
-10,
18,
-21,
42,
-11,
-20,
46,
-1,
-10,
23,
51,
-14,
63,
-25,
20,
33,
-38,
-6,
-20,
-31,
-14,
-12,
40,
-3,
42,
5,
7,
0,
7,
7,
-57,
-10,
-3,
28,
26,
11,
16,
8,
3,
9,
-7,
12,
-14,
21,
-2,
9,
40,
-12,
-14,
17,
13,
29,
28,
17,
-37,
9,
-41,
-65,
-29,
14,
-16,
40,
-43,
5,
-13,
-11,
-50,
-11,
-53,
-44,
-48,
-16,
-27,
58,
43,
19,
34,
8,
48,
-21,
31,
-14,
-17,
25,
21,
6,
-28,
44,
5,
-63,
-38,
6,
9,
-38,
17,
-78,
-24,
-6,
-37,
-12,
32,
15,
-50,
-15,
-27,
-14,
16,
11,
-53,
29,
-2,
-22,
-2,
53,
20,
35,
2,
16,
32,
-40,
10,
0,
17,
-39,
-25,
-9,
11,
16,
19,
11,
51,
15,
27,
42,
-43,
-68,
-27,
-6,
12,
44,
48,
73,
17,
-16,
-17,
-50,
-26,
-55,
-7,
-13,
57,
-34,
27,
1,
-47,
-51,
-31,
-10,
-62,
19,
-13,
72,
-28,
12,
-11,
34,
29,
-24,
-39,
11,
-51,
12,
10,
3,
0,
-24,
24,
4,
0,
-61,
-36,
-36,
-54,
-12,
-13,
5,
30,
-8,
27,
8,
-26,
-21,
-53,
-22,
-6,
7,
16,
8,
-32,
-14,
49,
25,
12,
5,
36,
29,
-17,
-17,
-22,
-3,
30,
65,
-11,
-86,
-34,
7,
28,
25,
14,
-9,
-5,
-3,
58,
1,
4,
32,
-73,
25,
-5,
-23,
-12,
-6,
45,
-6,
-22,
-13,
31,
-16,
-9,
-37,
55,
21,
24,
16,
-8,
-9,
-20,
-32,
-1,
31,
-69,
-39,
6,
35,
-58,
-7,
11,
-4,
-27,
-1,
-1,
-13,
16,
-9,
49,
0,
19,
13,
6,
13,
-27,
22,
48,
21,
15,
61,
31,
-23,
6,
23,
-48,
18,
41,
52,
-9,
-25,
-6,
-68,
4,
-38,
25,
4,
44,
-25,
-18,
0,
25,
12,
11,
6,
-46,
26,
-41,
3,
3,
-1,
7,
-20,
-34,
28,
9,
43,
12,
14,
54,
-20,
18,
-5,
100,
-46,
53,
29,
11,
23,
-21,
34,
-36,
-5,
-1,
-28,
-15,
-14,
25,
37,
18,
-58,
-38,
6,
43,
-24,
19,
39,
-10,
-49,
17,
91,
-38,
-19,
-2,
-12,
-14,
-56,
-42,
26,
-8,
13,
29,
11,
14,
-43,
-10,
-28,
-30,
9,
-48,
4,
-7,
58,
11,
-5,
-40,
31,
6,
-4,
-43,
-33,
46,
-5,
27,
51,
40,
14,
-26,
-35,
3,
-5,
-11,
16,
-11,
-37,
33,
-8,
42,
23,
8,
-13,
13,
-9,
-52,
-4,
-40,
31,
-25,
-17,
-21,
-73,
19,
4,
25,
27,
1,
-24,
-22,
-8,
-6,
-37,
11,
48,
-7,
-108,
-56,
-12,
-13,
-1,
-49,
14,
-13,
18,
20,
30,
0,
-18,
-40,
-6,
21,
-1,
47,
-3,
2,
18,
10,
-37,
0,
-21,
-38,
-56,
-30,
-14,
-19,
11,
26,
10,
-31,
6,
16,
-39,
8,
52,
34,
-33,
-33,
-51,
-25,
21,
-1,
16,
26,
47,
26,
-58,
-27,
1,
16,
36,
7,
-32,
13,
-26,
-21,
31,
25,
28,
-19,
7,
-23,
-24,
-17,
17,
-18,
7,
-55,
33,
-32,
-23,
32,
-45
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
From an order issued by the Honorable C. B. Sande, Thirteenth Judicial District, Yellowstone County, setting aside the decree of dissolution and subsequent nunc pro tunc order entered by the Honorable Robert H. Wilson of the same judicial district, petitioner appeals.
Following their June 19, 1975, marriage in Las Vegas, Nevada, petitioner and respondent resided in the Twin Falls, Idaho, area. On September 2, 1976, petitioner filed an action for divorce in the Fifth Judicial District, Twin Falls County, Idaho, to which respondent made no answer within twenty days after service of summons as required by Rulé 12(a), Idaho R.Civ.P. In that same month, the parties reconciled, and allegedly petitioner told her Idaho attorney to dismiss the petition for divorce. Sometime in 1977, the parties moved to Billings, Montana. After respondent left her, petitioner, on June 15, 1977, filed for dissolution of marriage in Billings. Due to the fact that respondent could not be personally served, although every effort was made to do so, the court directed that service of process by publication be made. That was done, but because respondent failed to answer the petition, default was entered on August 26, 1977. On that same date, Judge Wilson, satisfied that the procedural and jurisdictional requirements had been met, entered a decree of dissolution of marriage,' dissolving the marital relationship of the parties and awarding petitioner as her separate property one lot in Yellowstone County. A nunc pro tunc order, amending that decree so as to include an award of a mobile home to petitioner, was filed on September 23, 1977.
Acting on respondent’s motion filed November 4, 1977, Judge Sande, on January 4, 1978, entered an order setting aside the Mon tana decree of dissolution of marriage and nunc pro tunc order, based on his determination that the Montana court lacked jurisdiction to entertain divorce proceedings. Petitioner appeals therefrom.
Of its own initiative, this Court, on May 11, 1978, ordered respondent to file his brief within ten days. Respondent failed to do so, and the cause was deemed submitted for decision at the end of that ten-day period. We now set aside the order issued by Judge Sande and reinstate the decree of dissolution and the nunc pro tunc order'of Judge Wilson.
Respondent knew of the proceedings pending in the Montana court. On July 28, 1977, more than a-month after the petition for dissolution had been filed, he and petitioner had a telephone conversation during which they discussed possibilities of Mr. Blair getting his property from the Billings house, of him returning home and of Mrs. Blair dismissing the petition. However, he willfully refused to timely file a responsive pleading in the Montana court. He thus, in effect, elected to have default entered against him and to have petitioner proceed ex parte.
On or about August 1, 1977, almost a year after the Idaho petition was filed, he elected to answer and counterclaim on the Idaho petition. Whether respondent was given leave to file tardily is not evident from the record before this Court, but that is of little moment. It does not appear that the Idaho court has acted on the petition before it, and nowhere does respondent even allege that it has done so in a manner which would act as a jurisdictional bar to the Montana proceedings.
On January 18, 1978, almost five months after the decree of dissolution was entered by the Montana court, respondent filed his response to the Montana petition. Therein he demanded, inter alia, that the marriage of the parties be dissolved and that the parties’ property, admitted to be jointly held real property in the State of Montana, be distributed under the laws of the State of Idaho. Given the demands made in his response, respondent cannot be heard to object to the jurisdiction of the Montana court to enter a decree of dissolution of the parties’ marriage, for he himself asks, albeit somewhat tardily, the same court for the same decree of dissolution.
Section 48-317(3), R.C.M. 1947 (Supp.1977), provides:
“If a proceeding is commenced by one of the parties, the other party must be served in the manner provided by the Montana rules of civil procedure and may within 20 days after the date of service file a verified response. No decree may be entered until 20 days after the date of service.”
Respondent was served in the manner provided by the Montana Rules of Civil Procedure. Because he did not file a verified response within twenty days after the date of service by publication, deemed completed on the date of the last publication of summons according to Rule 4D(5)(g), M.R.Civ.P.-, default was entered. A decree of dissolution of marriage was also entered, but not until twenty days after the date of service had elapsed.
That service by publication is permitted in a divorce action is beyond dispute; Rule 4D(5)(a)(iii), M.R.Civ.P., specifically so provides. Rule 4D(5)(b), M.R.Civ.P., allows a court of competent jurisdiction to render a decree which will adjudicate any interest of a defendant so served in the status, property, or thing upon which the court has acted. Because a decree of dissolution affects the status of the parties, section 48-315(5), R.C.M. 1947 (Supp.1977), and so is an action in rem, the District Court did not err in entering such a decree even in the absence of respondent.
As to the adjustment of property rights about which re-r spondent impliedly complains, we reiterate that the District Court has equitable powers to deal with the adjustment of property rights between parties in a divorce action. LaPlant v. LaPlant (1976), 170 Mont. 155,551 P.2d 1014, 1015. In a proceeding for dissolution of a marriage, the District Court is mandated by section 48-321(1), R.C.M. 1947 (Supp.1977), to “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.” That apportionment will not be disturbed on appeal unless review reveals that there has been a substantially inequitable division which evidences an abuse of discretion. See Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014, 1016; Perkins v. Perkins (1975), 168 Mont. 78, 79, 540 P.2d 957, 958; Finlayson v. Finlayson (1972), 160 Mont. 64, 66, 500 P.2d 225, 226. Because the property adjustment made by the District Court, based on the information available to it, is not substantially inequitable, we find no abuse of discretion requiring the attention of this Court.
The order setting aside the decree and subsequent nunc pro tunc order is vacated, and the decree of dissolution of marriage and nunc pro tunc order issued by Judge Wilson is reinstated.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
-19,
-15,
11,
12,
-82,
-22,
-13,
39,
-14,
7,
-5,
39,
9,
-29,
-58,
-64,
-25,
-8,
2,
-4,
-46,
24,
-52,
23,
69,
-20,
-10,
-1,
-28,
-17,
21,
30,
-6,
-26,
32,
-16,
-27,
14,
29,
5,
12,
-4,
-56,
-16,
-38,
1,
5,
-40,
-39,
3,
19,
-2,
-20,
7,
51,
25,
-2,
-9,
-21,
-15,
-9,
13,
-28,
44,
2,
-16,
30,
25,
61,
-10,
-1,
-46,
0,
-26,
7,
-12,
36,
10,
-39,
5,
29,
-4,
-14,
-40,
18,
-38,
-7,
89,
-20,
46,
-2,
7,
-8,
-20,
5,
-4,
-4,
-4,
23,
2,
-21,
-14,
9,
13,
16,
-14,
-1,
20,
51,
7,
58,
-11,
-14,
-2,
-18,
25,
-9,
23,
-9,
-68,
13,
15,
-32,
49,
40,
-52,
-29,
10,
44,
9,
-37,
-4,
28,
-9,
-19,
1,
-46,
-44,
-27,
-44,
43,
-37,
61,
14,
22,
8,
-5,
9,
30,
-18,
-10,
10,
33,
76,
44,
-17,
8,
-35,
8,
-4,
1,
3,
-3,
36,
26,
22,
-9,
7,
-49,
-6,
33,
-25,
-25,
28,
57,
5,
-39,
19,
-27,
21,
13,
52,
12,
-94,
7,
43,
23,
-14,
-1,
-7,
-84,
-11,
57,
-29,
26,
-20,
44,
18,
-25,
28,
13,
4,
39,
20,
-33,
13,
33,
42,
-1,
7,
-14,
7,
-30,
-10,
-47,
-28,
-24,
-32,
-24,
4,
27,
29,
-2,
-48,
-37,
-37,
-38,
73,
-69,
-10,
-37,
-19,
-3,
-23,
30,
5,
22,
11,
-22,
22,
-10,
-12,
26,
0,
29,
31,
-22,
-6,
-26,
-15,
26,
2,
-3,
32,
20,
2,
29,
21,
-5,
-41,
32,
-45,
9,
20,
-22,
-29,
10,
-18,
33,
2,
14,
63,
34,
-33,
6,
-41,
22,
16,
17,
-9,
-14,
-19,
-23,
24,
7,
39,
4,
11,
4,
0,
-14,
-63,
-22,
20,
-28,
-34,
-21,
-27,
-22,
-48,
9,
-1,
6,
29,
14,
-18,
-39,
22,
14,
-8,
41,
23,
-4,
0,
16,
39,
-11,
5,
-19,
-10,
37,
54,
37,
-28,
-64,
61,
-55,
-13,
19,
17,
-3,
50,
-34,
11,
53,
-34,
22,
-26,
-62,
-33,
-19,
-45,
-4,
32,
-36,
16,
12,
7,
17,
31,
8,
24,
21,
29,
-10,
41,
-16,
-69,
-10,
-31,
-3,
-2,
-40,
-29,
-4,
36,
31,
-43,
18,
-21,
-64,
40,
40,
26,
7,
1,
27,
47,
-51,
14,
-31,
-34,
-25,
8,
3,
5,
-29,
-22,
-46,
-43,
2,
-6,
9,
17,
4,
-18,
35,
-60,
-38,
19,
-31,
58,
23,
-5,
-41,
-29,
32,
-13,
-19,
-6,
50,
-15,
-20,
8,
64,
-19,
9,
25,
-10,
22,
-51,
-62,
-25,
-6,
-27,
-5,
-17,
-14,
9,
6,
10,
87,
-15,
-32,
22,
1,
45,
33,
-35,
23,
-5,
7,
-31,
-10,
-6,
-19,
-38,
1,
28,
-1,
11,
0,
-17,
14,
11,
28,
9,
-5,
-17,
-27,
27,
10,
24,
-18,
15,
-18,
-41,
-28,
0,
32,
6,
29,
12,
58,
0,
15,
-10,
4,
-38,
-79,
2,
-35,
-33,
18,
23,
15,
30,
-19,
15,
-18,
-15,
7,
26,
-31,
-63,
0,
-7,
-42,
-7,
-13,
-5,
23,
-3,
20,
2,
-36,
-24,
22,
-32,
33,
-10,
-4,
57,
-3,
-15,
-11,
11,
-46,
-11,
-1,
-7,
42,
55,
-82,
80,
37,
25,
-24,
29,
13,
-30,
95,
-22,
-28,
-28,
26,
2,
7,
9,
-24,
47,
-25,
10,
10,
26,
27,
3,
-5,
-11,
7,
66,
-2,
-34,
-7,
32,
0,
-13,
2,
-62,
-5,
13,
36,
-7,
-50,
-33,
-4,
-59,
-40,
-38,
8,
0,
20,
28,
-10,
53,
-12,
-29,
-5,
-24,
8,
-9,
35,
-61,
-19,
-35,
-59,
14,
42,
-6,
3,
-34,
7,
5,
25,
-16,
-2,
2,
26,
-45,
-9,
-74,
-28,
45,
33,
-10,
-3,
15,
12,
20,
0,
-10,
-6,
12,
28,
-18,
76,
12,
-49,
46,
14,
-19,
15,
28,
-22,
-10,
-29,
-14,
31,
10,
7,
-21,
10,
6,
-2,
21,
-4,
34,
1,
0,
-33,
47,
58,
18,
6,
-6,
-2,
15,
-6,
41,
26,
60,
40,
-9,
-73,
26,
10,
36,
-23,
58,
54,
-14,
-1,
40,
17,
20,
51,
5,
82,
27,
53,
-40,
7,
4,
7,
10,
-37,
9,
-19,
23,
5,
45,
-3,
-16,
-64,
14,
-23,
15,
16,
5,
31,
11,
11,
-24,
29,
-15,
-27,
-31,
35,
-7,
-22,
17,
20,
-8,
21,
-1,
39,
-41,
-19,
26,
-2,
-44,
-1,
-33,
-40,
-57,
-3,
-1,
-27,
-35,
-47,
-20,
27,
-32,
3,
12,
6,
-2,
-16,
41,
-1,
37,
36,
0,
-11,
-31,
16,
2,
9,
46,
58,
-1,
6,
-33,
54,
13,
66,
10,
-4,
-15,
-32,
8,
7,
-15,
17,
13,
-16,
-13,
-14,
-28,
-1,
24,
-4,
-8,
13,
-6,
-5,
-9,
-27,
17,
-9,
30,
-12,
31,
-2,
-42,
3,
15,
57,
-4,
-70,
-43,
-36,
-50,
-9,
-3,
-52,
58,
58,
32,
28,
30,
-11,
67,
-25,
-7,
20,
-21,
10,
-37,
36,
10,
23,
10,
-31,
-19,
13,
-9,
18,
-1,
39,
-44,
21,
9,
-28,
20,
-42,
13,
3,
-4,
-46,
52,
-77,
10,
24,
-3,
-30,
-21,
10,
-9,
44,
30,
5,
49,
-26,
-11,
4,
60,
-13,
5,
-13,
-14,
-20,
6,
-36,
42,
45,
58,
-10,
53,
0,
-1,
0,
3,
29,
-4,
19,
-31,
39,
-2,
20,
-11,
14,
8,
-45,
-1,
-58,
67,
-2,
13,
35,
18,
-37,
26,
43,
-31,
-34,
68,
-3,
-3,
-75,
-26,
3,
-31,
-5,
-2,
-3,
37,
65,
-33,
14,
30,
-10,
-16,
13,
-3,
29,
-17,
-42,
-10,
31,
-40,
2,
-33,
12,
50,
-39,
-18,
75,
76,
-21,
20,
4,
-15,
-49,
29,
-36,
17,
-9,
1,
-3,
55,
9,
-24,
1,
-38,
12,
-36,
-1,
-47,
13,
0,
-10,
-66,
-63,
-19,
-14,
-42,
97,
26,
-7,
-26,
-57,
16,
-24,
3,
-2,
-6,
-22,
-4,
-24,
24,
-21,
-25,
18,
-2,
38,
-24,
27,
13,
-8,
-32,
44,
30,
-35,
-48,
-14,
23,
22,
-24,
6,
-5,
0,
-18,
-23,
-32,
47,
0,
15,
9,
1,
23,
26,
16,
-37,
-5,
0,
40,
-11,
-42,
-34,
7,
4,
-40,
-20,
35,
10,
1,
-63,
4,
-21,
-16,
-16,
-23,
-7,
21,
-31,
-22,
-23,
7,
3,
-23,
11,
-19,
-18,
11,
25,
-20,
19,
-18,
5,
-29,
-18,
6,
-25
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Claimant appeals from a judgment of the Workers’ Compensation Court denying compensation and concluding that claimant’s back problems for which he was claiming compensation, were not related to an earlier industrial injury he received on September 29, 1974.
Claimant, Harold Eaton, is a former employee of the Anaconda Mining Company. His duties with the Anaconda Company required him to drive the large trucks utilized in the open pit operations in Butte, Montana. On September 29, 1974, while performing his normal duties, claimant suffered a compensable injury covered by the Montana Workers’ Compensation Act. The Anaconda Company, acting as its own insurer, accepted liability for Eaton’s injuries and paid his medical expenses and time loss for the period during which claimant was temporarily disabled. Claimant’s disability lasted from September 30, 1974 until October 26, 1974, a period of approximately three and one-half weeks.
On October 26, 1974, claimant obtained his doctor’s release and returned to his job with the Anaconda Company. He worked, apparently without incident, from October 26, 1974 until January 12, 1976, at which time he was laid off due to a general reduction in force.
Thereafter, while claimant was unemployed, he began to experience disabling pains in his lower back. He consulted numerous doctors and on December 22, 1976, claimant was admitted to the Silver Bow General Hospital for a laminectomy. This first operation did not alleviate the pain, and claimant consulted Dr. McIntosh of the Missoula Neurosurgical Clinic in Missoula, Montana. Dr. McIntosh’s treatment apparently ended claimant’s lower back pains.
After claimant obtained a medical release he filed a claim with his former employer, the Anaconda Company, alleging all of his lower back problems stemmed from his September 29, 1974, industrial accident. Claimant instituted an action with the Workers’ Compensation Court after the Anaconda Company refused to recognize the compensability of his claim.
On March 7, 1978, the Workers’ Compensation Court held claimant had failed to establish by a preponderance of the credible evidence that there was a causal relationship between the Septem ber 29, 1974 accident and the back problems suffered in late 1976 and early 1977. From this adverse finding, claimant appeals to this Court.
Claimant raises many issues but all of them can be distilled into his contention that he established by a preponderance of the evidence that there was a causal relationship between the back injury he suffered in 1974 and the back problems that plagued him in late 1976 and early 1977. It was claimant’s burden to prove by a preponderance of evidence that his back problems of 1976 and 1977 were causally related to his September 29, 1974 injury. This, he failed to do.
In attempting to establish a connecting link between the 1974 injury and his aggravated injuries of 1976 and 1977, claimant relied almost exclusively on a letter written by Dr. McIntosh. The letter stated:
“From the information that I have at hand, the herniated disc which Mr. Eaton suffered and recently had treated is believed to have been caused from the injury which he suffered in 1974. With reasonable medical certainty I believe that one could state that there is a causal relationship between his herniated disc and that injury.”
This letter is the only medical evidence which supported a causal relationship between the September 29, 1974 accident and claimant’s aggravated back problems of 1976 and 1977. In their briefs, both parties refer to depositions taken of Dr. Davidson as well as Dr. McIntosh. We note however, that these depositions were not part of the record before the Workers’ Compensation Court nor are they included in the record on appeal. Accordingly, we must base our decision solely on the letter of Dr. McIntosh and the testimony introduced to controvert his conclusion.
Dr. Philip Blom, a chiropractor, first saw claimant on June 4, 1975. At that time, Dr. Blom treated claimant for what he thought to be residual effects of the September 29, 1974 accident. He treated claimant for three weeks and when claimant did not appear for a follow-up appointment, Dr. Blom assumed he no longer had any back problems.
Almost a year and a half later (December 13, 1976) claimant again came to Dr. Blom concerning severe back pains. Dr. Blom saw claimant twice on December 13 and twice on December 14. In his deposition, used as part of the trial evidence in this case, Dr. Blom testified that he saw no connection between the original industrial accident and the later back problems of claimant:
“Q. Dr. Blom, do you have a professional opinion as to whether Mr. Eaton’s problems on the second occasion when you saw him were related to the problems you treated him for in the summer of 1975? A. I do have an opinion.
“Q. What is that opinion? A. I cannot physically or anatomically relate the condition as he presented himself in my office in 1976 back to an injury that happened two years prior based upon the fact that a condition and the acuteness of this condition and the etiology of the original injury does not lay dormant for that period of time.”
This Court has a limited scope of review. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, we will not overturn their decision. Hayes v. Aetna Insurance (1978), 176 Mont. 513, 579 P.2d 1225; Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 571 P.2d 372. We will not substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact.
There is sufficient expert testimony in the record to support the findings and conclusions of the Workers’ Compensation Court.
The judgment is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and SHEEHY concur.
|
[
16,
4,
-29,
50,
38,
-33,
4,
-41,
23,
16,
4,
21,
31,
-53,
41,
-12,
-30,
-11,
-24,
58,
17,
-61,
-9,
24,
1,
-54,
-20,
-48,
-51,
12,
-9,
-15,
32,
-37,
-11,
24,
-28,
-49,
-42,
-12,
-14,
22,
-28,
-29,
7,
24,
31,
1,
20,
-22,
7,
-16,
-30,
7,
-37,
-25,
41,
16,
-40,
13,
9,
-16,
70,
-1,
59,
-52,
81,
-5,
29,
34,
-35,
33,
28,
-60,
0,
-59,
16,
41,
-2,
12,
12,
-16,
-7,
-47,
-47,
9,
-39,
43,
33,
26,
-13,
-60,
47,
34,
-15,
77,
-32,
-10,
-30,
30,
-37,
36,
32,
-25,
27,
-25,
9,
-4,
25,
32,
-10,
63,
-31,
-3,
-2,
8,
42,
-7,
-11,
50,
-34,
16,
6,
-5,
-37,
-9,
3,
39,
19,
39,
-10,
-3,
7,
11,
-22,
15,
-8,
-14,
-35,
31,
-5,
19,
8,
-12,
-12,
32,
10,
-19,
65,
-13,
15,
-12,
54,
-28,
36,
-5,
14,
36,
58,
15,
50,
-8,
-16,
49,
35,
25,
53,
5,
75,
-31,
4,
-43,
-8,
-35,
55,
47,
77,
1,
-34,
16,
-81,
-30,
18,
-36,
23,
-33,
11,
13,
104,
23,
17,
-1,
-19,
17,
-36,
-60,
-1,
-5,
26,
12,
33,
-15,
-45,
11,
-34,
37,
-1,
33,
56,
13,
63,
-6,
39,
-54,
10,
24,
8,
-21,
-25,
-25,
8,
13,
-39,
-47,
-32,
20,
15,
-41,
48,
-33,
-39,
5,
38,
-15,
11,
-24,
-19,
-20,
36,
-40,
-15,
-29,
-42,
-24,
-27,
6,
-8,
-39,
-30,
-16,
23,
6,
-13,
-11,
-5,
1,
10,
46,
-27,
-76,
-24,
1,
6,
30,
54,
-37,
-30,
8,
40,
-45,
1,
-2,
81,
-27,
-47,
-57,
11,
22,
53,
6,
-28,
-26,
9,
-1,
-28,
-5,
-19,
-23,
-89,
39,
53,
-64,
29,
-28,
18,
-46,
-7,
-6,
-63,
28,
-15,
13,
-17,
29,
29,
54,
-37,
25,
24,
47,
1,
-47,
-34,
-36,
54,
-23,
27,
-6,
-33,
-60,
-16,
37,
3,
3,
2,
-10,
-16,
-11,
-22,
-42,
-25,
13,
-14,
34,
12,
-41,
14,
10,
-15,
6,
13,
-1,
35,
-5,
-54,
30,
26,
-14,
25,
78,
-14,
0,
33,
-42,
-15,
50,
21,
-17,
-67,
14,
56,
-15,
-25,
19,
-25,
11,
-44,
-39,
6,
54,
-62,
16,
58,
-47,
-22,
-38,
26,
-3,
-29,
10,
36,
36,
41,
-96,
-86,
53,
14,
-5,
31,
19,
-93,
-47,
72,
72,
0,
63,
16,
11,
-45,
22,
-16,
40,
1,
5,
86,
-128,
40,
-10,
-10,
-23,
-43,
20,
-9,
-15,
7,
-26,
72,
-29,
-52,
-19,
36,
-11,
-1,
-52,
60,
19,
27,
13,
-35,
-37,
9,
-4,
21,
-24,
-6,
-36,
-16,
29,
-34,
-18,
16,
-6,
-10,
-31,
23,
41,
9,
-5,
40,
-20,
10,
-18,
-5,
30,
-31,
0,
-16,
-33,
-23,
-38,
-70,
-3,
15,
-1,
71,
-47,
30,
-6,
45,
29,
34,
21,
28,
18,
25,
-10,
-59,
-4,
-10,
-55,
-12,
-31,
0,
46,
0,
-51,
-71,
3,
-25,
59,
43,
-23,
-22,
11,
-15,
9,
-40,
-10,
29,
-34,
-19,
-51,
34,
16,
42,
-43,
32,
-77,
10,
26,
-45,
3,
18,
-13,
-9,
-4,
17,
-8,
21,
20,
17,
-6,
9,
22,
-26,
-84,
-54,
11,
36,
-57,
-3,
-27,
16,
-2,
-3,
-20,
7,
20,
-52,
-54,
17,
10,
8,
-33,
-5,
-62,
-40,
18,
59,
22,
31,
-22,
35,
0,
47,
7,
-10,
39,
48,
12,
22,
3,
2,
48,
-24,
44,
-18,
19,
20,
-2,
-57,
69,
4,
3,
-3,
28,
-18,
-1,
-40,
45,
27,
-32,
23,
0,
-73,
-75,
27,
-23,
-6,
-59,
34,
-40,
1,
30,
21,
28,
-17,
43,
-34,
30,
37,
-33,
-6,
2,
34,
38,
-15,
-3,
30,
-49,
-14,
81,
18,
-51,
-33,
-52,
-22,
0,
57,
-11,
39,
6,
26,
5,
-80,
-8,
-50,
-34,
-41,
0,
22,
-3,
13,
-3,
9,
35,
68,
25,
-13,
-11,
7,
3,
10,
37,
-45,
-56,
14,
13,
-29,
-41,
2,
16,
-48,
-30,
-27,
-9,
-5,
21,
-46,
36,
-56,
31,
0,
-54,
19,
2,
-31,
-21,
0,
4,
0,
49,
27,
-9,
6,
-30,
-8,
14,
0,
-33,
-40,
-14,
36,
-10,
26,
28,
-18,
23,
6,
-19,
-25,
64,
9,
-16,
-39,
37,
34,
-42,
-33,
-25,
-27,
36,
10,
21,
53,
55,
17,
-8,
6,
10,
11,
-24,
18,
-28,
23,
87,
0,
-42,
-45,
-70,
-38,
-72,
-51,
14,
-7,
26,
-5,
17,
-52,
18,
-2,
13,
27,
21,
-20,
-16,
23,
30,
12,
32,
61,
7,
15,
71,
-11,
-48,
-31,
-7,
5,
-31,
-40,
-18,
5,
22,
13,
-49,
-13,
11,
-9,
-1,
15,
-47,
7,
9,
-28,
12,
1,
-27,
-27,
1,
26,
71,
-1,
-38,
11,
6,
9,
24,
12,
38,
0,
-21,
15,
10,
-69,
-28,
-44,
39,
-2,
-42,
-50,
-38,
50,
-36,
23,
-29,
-2,
12,
-54,
42,
15,
17,
-18,
1,
56,
-67,
33,
-39,
-7,
-13,
-41,
-20,
24,
40,
7,
-20,
16,
37,
-28,
-2,
11,
25,
-65,
-1,
72,
-35,
-16,
0,
26,
-6,
-36,
20,
-25,
39,
55,
19,
55,
-20,
-29,
-33,
24,
-3,
-49,
2,
50,
-36,
-58,
31,
39,
-5,
-19,
-31,
-11,
50,
-15,
10,
1,
-60,
11,
15,
17,
22,
-71,
59,
-1,
27,
-22,
-6,
14,
10,
6,
1,
32,
-8,
-33,
52,
-3,
-43,
65,
-33,
-7,
-6,
7,
-4,
8,
-33,
35,
12,
-12,
9,
4,
-16,
-20,
-51,
-34,
-49,
7,
38,
0,
-46,
50,
43,
16,
8,
29,
30,
-4,
-35,
-20,
83,
-15,
-7,
6,
23,
3,
36,
-24,
95,
31,
22,
-19,
-17,
0,
0,
4,
-18,
-27,
30,
-28,
37,
0,
14,
17,
-20,
12,
2,
-10,
-38,
-14,
-42,
19,
-3,
7,
10,
-30,
-60,
-16,
-38,
34,
24,
45,
8,
20,
43,
64,
3,
20,
4,
23,
0,
-6,
30,
-13,
53,
11,
-31,
11,
-34,
-15,
-66,
-1,
9,
-46,
-83,
11,
56,
30,
-17,
26,
-49,
56,
-45,
3,
19,
0,
-56,
-39,
-53,
22,
-3,
12,
48,
4,
30,
51,
-25,
39,
-56,
39,
-2,
83,
-38,
-14,
-3,
-6,
62,
9,
-52,
74,
0,
26,
43,
-69,
-32,
36,
60,
-23,
-9,
-5,
4,
0,
8,
36,
-52
] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
This matter arises on the application and petition of relator, Charles A. Graveley, Lewis and Clark County Attorney, filed in this Court on May 2, 1978, for a writ of supervisory control. Relator seeks to have Jack B. Gehring’s bail bond revoked and dismissed, to have him remanded to the custody of the Sheriff of Lewis and Clark County, to have the appeal, in Cause No. 14105, State v. Gehring (District Court Cause No. 4162), dismissed, and to have the appeal, also in Cause No. 14105, Jack B. Gehring v. Rick Westlund (District Court Cause No. 42159), filed and instituted as a separate appeal.
State v. Jack B. Gehring involves Gehring’s conviction on July 20, 1977, by a jury, of four counts of intentionally failing to pay income taxes or make, render, sign or verify returns, or to supply any information, within the time required by or under the provisions of Title 84, Chapter 49, R.C.M.1947. Gehring was given a two-year suspended sentence by the Honorable Gordon R. Bennett, District Judge. Thereafter, Gehring filed a motion for a new trial, which was heard and denied on October 4, 1977. Gehring filed his notice of appeal from his criminal conviction on December 19, 1977. On January 3, 1978, the State filed a motion to dismiss this appeal as untimely.
On January 20, 1978, the District Court revoked Gehring’s suspended sentence, upon motion of the State, and ordered him remanded to the custody of the Sheriff of Lewis and Clark County. On February 6, 1978, Gehring filed a writ of habeas corpus in District Court, Jack B. Gehring v. Rick Westlund. The Honorable Gordon R. Bennett declined jurisdiction of this matter and jurisdiction was assumed by the Honorable Robert J. Boyd. A hearing was held on the petition on February 17, 1978. At that hearing, Gehring retained as his counsel, William Dee Morris. After hearing the matter, the court dismissed the petition with leave to file a new one. An amended writ of habeas corpus was filed on February 21, 1978. A hearing was held on this writ on March 10, 1978. The court denied the writ on April 7, 1978. On April 11, 1978, Gehring filed his notice of appeal in this matter. On April 25, 1978, the Honorable Robert J. Boyd approved a property bail bond in which Gehring pledged all of his property. Gehring is now free on this bail bond, during his appeal.
The sole issue before this Court is whether this Court has jurisdiction to hear the criminal appeal, and the appeal from the denial of the writ of habeas corpus, both appeals filed in Cause No. 14105.
The time limit for bringing an appeal in a criminal case is specified in section 95-2405(e), R.C.M.1947. It reads:
“An appeal from a judgment may be taken within sixty (60) days after its rendition.”
In this case, Gehring’s notice of appeal, on December 19, 1977, was 152 days after entry of the sentencing order and 76 days after the denial of his motion for a new trial. Clearly, his notice of appeal was not within the time limits of section 95-2405(e).
We have held under the former statute to section 95-2405(e), which allowed the appeal to be filed within six months after entry of judgment, that the filing of an appeal beyond the statutory time limits deprives this Court of jurisdiction to hear the appeal. State v. Frodsham, (1961), 139 Mont. 222, 362 P.2d 413. We have continued to apply this rule under section 95-24'05(e). Ketcham v. State, (1975), 167 Mont. 535, 541 P.2d 68.
In regard to civil appeals, we have continually taken the same approach. We have held that if a notice of appeal is not filed within the time limits of Rule 5, M.R.App.Civ.P., this Court is deprived of jurisdiction to hear the appeal. Zell v. Zell, (1977), 172 Mont. 496, 565 P.2d 311; Jackson v. Tinker, (1972), 161 Mont. 51, 504, P.2d 692; First National Bank of Lewistown v. Fry, (1978), 176 Mont. 58, 575 P.2d 1325.
Since Gehring filed his notice of appeal more than 60 days after rendition of judgment, this Court is without jurisdiction to hear his appeal. Accordingly, the appeal in State v. Gehring (District Court Cause No. 4162) is dismissed.
As for Gehring’s appeal from the denial of his writ of habeas corpus, this appeal must also be dismissed. Although no motion to dismiss has been made in regard to this appeal, this Court has always held it has the power to dismiss an appeal, on its own motion, where one does not properly lie. State v. Booth, (1958), 134 Mont. 235, 328 P.2d 1104. Gill v. Rafn, (1958), 133 Mont. 505, 326 P.2d 974.
Since the right to a review of [a habeas corpus] judgment or order is purely statutory, no appeal will lie if there is no provision therefor, and if a right of review is conferred by statute, it exists only in such cases and to the extent that the applicable statute provides.” 39A C.J.S. Habeas Corpus § 239. (Bracketed material added.)
Under Montana law no appeal lies from the order denying a writ of habeas corpus in a proceeding criminal in nature, where the issue to be determined is the freedom of petitioner, or the legality of petitioner’s detention. State v. Booth, supra; State ex rel. Jackson v. Kennie, (1900), 24 Mont. 45, 60 P. 589; In re Pyle, (1925), 72 Mont. 494, 234 P. 254. However, a right to appeal does exist from an order denying a writ of habeas corpus in a case involving the custody of a minor child. State ex rel. Veach v. Veach, (1948), 122 Mont. 47, 195 P.2d 697.
The statute that deals with the right to appeal in habeas corpus proceedings which are criminal in nature is section 95-2714, R.C.M.1947, which specifically provides:
“An appeal may be taken to the supreme court by the state from an order of judgment discharging the petitioner. The court may admit the petitioner to bail pending appeal. The appeal shall be taken in the same manner as in civil actions.”
This statute, which was adopted in 1967, became law in light of the rule announced in Booth, Kennie and Pyle.
The reason for this rule, which does not permit an appeal, is that the writ of habeas corpus is an original writ. It is issuable out of either the District or Supreme Court. As that is the case, a denial of the writ is not res judicata. The denial does not divest this Court of jurisdiction to grant a second application. State v. Booth, supra-, In re Pyle, supra.
In this case Gehring has appealed from the denial of his writ of habeas corpus in which he challenged the legality of his detention. He has no right to appeal under those circumstances. Thus, his appeal must be dismissed.
Therefore, both the criminal appeal (District Court Cause No. 4162) and the appeal in the habeas corpus proceeding (District Court Cause No. 42159), appearing in Cause No. 14105, are dismissed. Relator’s application for a writ of supervisory control is denied. Further, since Gehring is free on bail pending his appeal, and the appeal has been dismissed, the order of the District Court of April 25, 1977, releasing him on bail is vacated and he is remanded to the custody of the Sheriff of Lewis and Clark County.
MR. JUSTICES DALY, HARRISON and SHEEHY concur.
|
[
9,
15,
-8,
34,
-5,
-1,
-33,
-38,
-34,
22,
-17,
-17,
27,
-69,
15,
2,
-3,
26,
47,
22,
2,
20,
19,
58,
30,
-17,
39,
22,
-31,
-43,
-32,
-33,
6,
-29,
-4,
5,
1,
14,
18,
5,
4,
-23,
-67,
-44,
-15,
-27,
2,
20,
19,
-41,
4,
43,
-7,
4,
102,
8,
3,
-91,
-73,
20,
9,
-3,
16,
10,
17,
-29,
9,
17,
34,
-2,
-18,
-31,
-24,
15,
29,
13,
-8,
-32,
8,
3,
-51,
9,
-9,
52,
25,
-24,
-21,
-17,
13,
2,
-22,
4,
-62,
-27,
19,
-26,
-29,
-63,
-35,
26,
-40,
-12,
38,
52,
-29,
-81,
-11,
22,
57,
16,
16,
22,
0,
25,
-13,
-60,
1,
-17,
12,
1,
-40,
-16,
23,
107,
1,
12,
-15,
-3,
59,
14,
-1,
59,
64,
-42,
17,
-15,
-10,
-18,
20,
-8,
-4,
-46,
55,
-40,
14,
26,
21,
23,
24,
31,
-11,
-10,
42,
52,
17,
23,
12,
-23,
-35,
25,
7,
10,
-11,
-97,
-6,
0,
-36,
27,
-77,
-54,
77,
88,
5,
29,
53,
-27,
32,
-20,
-1,
1,
-48,
14,
22,
0,
-88,
16,
33,
21,
-4,
33,
-25,
36,
-18,
-68,
-43,
6,
2,
-30,
1,
7,
12,
-13,
25,
43,
7,
-4,
5,
16,
20,
-3,
-36,
-19,
75,
-17,
-54,
-7,
12,
13,
16,
29,
18,
53,
7,
24,
20,
14,
-7,
-34,
-36,
-21,
5,
2,
-8,
-31,
-61,
-19,
-19,
-30,
75,
71,
31,
-57,
28,
-2,
58,
18,
-18,
-15,
34,
-34,
3,
0,
-2,
38,
-31,
24,
52,
-43,
15,
-17,
26,
31,
42,
-8,
-23,
-2,
-12,
11,
56,
7,
17,
0,
17,
21,
0,
29,
31,
1,
0,
-9,
-26,
-31,
37,
8,
-20,
-11,
-3,
-41,
40,
-39,
41,
-58,
10,
-24,
-30,
-32,
11,
25,
6,
-24,
-12,
-37,
-5,
-11,
-34,
-13,
-38,
25,
-14,
0,
4,
14,
35,
-18,
-2,
16,
-1,
-49,
35,
-46,
-5,
22,
-37,
-13,
8,
55,
-6,
35,
-23,
-3,
1,
-28,
-30,
26,
-7,
-29,
15,
24,
-7,
52,
3,
-62,
15,
50,
-72,
-39,
59,
59,
24,
13,
5,
-36,
30,
19,
-43,
-44,
-2,
-56,
-9,
-60,
14,
23,
-37,
20,
-9,
12,
68,
-5,
28,
-28,
19,
14,
17,
14,
14,
-13,
10,
-36,
-49,
-8,
0,
15,
-16,
2,
-16,
18,
15,
16,
-40,
28,
27,
-16,
-50,
-26,
-24,
66,
35,
-50,
27,
-13,
3,
17,
74,
-18,
5,
-4,
7,
69,
20,
-46,
-7,
7,
-53,
-6,
41,
36,
66,
-14,
-43,
-42,
18,
-3,
15,
18,
49,
8,
-10,
11,
-49,
-13,
27,
0,
-23,
-15,
-5,
-60,
-25,
19,
-31,
-10,
-36,
-18,
12,
31,
24,
-18,
-1,
49,
38,
-2,
-18,
-34,
-65,
57,
3,
91,
39,
-23,
-22,
-8,
-19,
56,
18,
56,
31,
6,
18,
24,
28,
25,
26,
34,
42,
10,
-47,
-15,
-34,
-4,
-4,
0,
5,
-37,
-20,
-51,
25,
18,
-31,
-55,
-10,
2,
24,
10,
35,
-50,
33,
-26,
13,
49,
38,
-20,
0,
-46,
-65,
-5,
74,
-18,
-3,
37,
-55,
38,
91,
15,
37,
41,
20,
-11,
10,
12,
-18,
28,
-19,
56,
26,
6,
-4,
3,
32,
-45,
20,
-20,
-15,
15,
-36,
-9,
22,
35,
-3,
-31,
40,
-31,
53,
-65,
1,
20,
-6,
-3,
-28,
-73,
-13,
-1,
12,
0,
16,
5,
-17,
-48,
-10,
-8,
-58,
24,
38,
57,
-6,
19,
-51,
12,
-18,
-9,
-17,
-6,
-6,
30,
-51,
-28,
36,
-29,
-20,
11,
-6,
-41,
-31,
13,
-101,
-7,
-61,
19,
-17,
32,
-27,
36,
-22,
-9,
-15,
8,
-37,
2,
-22,
46,
0,
3,
-3,
32,
5,
64,
32,
7,
74,
27,
-13,
-6,
-32,
22,
-25,
16,
55,
33,
-9,
4,
-36,
41,
-66,
-64,
17,
0,
-41,
-38,
-75,
-55,
-3,
-16,
-52,
-9,
-40,
-16,
0,
15,
-24,
4,
-49,
-16,
69,
99,
40,
2,
31,
-63,
22,
-15,
-23,
-27,
-19,
-25,
-34,
12,
40,
-1,
73,
-18,
30,
-29,
2,
30,
-10,
-94,
-9,
-6,
16,
42,
-14,
41,
-9,
-13,
20,
-40,
-11,
-3,
-14,
0,
62,
-44,
7,
-11,
-6,
-36,
35,
22,
37,
29,
22,
52,
3,
48,
-12,
38,
2,
-3,
2,
27,
-71,
-3,
12,
-17,
12,
14,
-19,
-17,
-44,
-51,
-43,
-17,
0,
-30,
-5,
-18,
12,
-66,
18,
-93,
-63,
-3,
-55,
-24,
-20,
-10,
35,
11,
-51,
-39,
1,
-48,
8,
-3,
17,
-6,
-17,
-12,
45,
20,
48,
84,
5,
-58,
-62,
33,
21,
28,
44,
57,
1,
-65,
37,
9,
2,
24,
-47,
44,
33,
-12,
-22,
-15,
35,
14,
-44,
23,
-25,
2,
-64,
-35,
23,
-2,
7,
41,
-5,
5,
-15,
-34,
48,
-2,
-13,
-14,
-38,
16,
22,
47,
-48,
34,
-72,
27,
15,
-9,
43,
-20,
56,
-24,
18,
-24,
8,
-10,
16,
-7,
28,
-29,
35,
27,
-11,
-18,
53,
11,
3,
-27,
-4,
0,
-10,
-42,
26,
8,
42,
11,
-32,
-19,
26,
-38,
31,
-12,
23,
-9,
6,
16,
21,
45,
0,
0,
28,
79,
5,
-57,
14,
36,
10,
26,
55,
9,
55,
-18,
38,
-15,
33,
20,
27,
-20,
24,
-18,
-68,
54,
-49,
-5,
10,
-5,
47,
-12,
-19,
-16,
-38,
-12,
35,
-5,
0,
7,
14,
26,
-60,
-41,
41,
46,
17,
23,
-18,
47,
22,
-57,
-3,
0,
-21,
41,
3,
-47,
-12,
-73,
33,
4,
0,
-58,
-24,
14,
-40,
-18,
21,
-34,
-15,
-29,
-48,
-14,
-14,
26,
36,
10,
25,
25,
14,
5,
1,
6,
-5,
37,
1,
0,
-5,
-6,
31,
9,
13,
46,
-29,
20,
-2,
-41,
-44,
3,
21,
46,
-56,
9,
-42,
-24,
-65,
9,
34,
-4,
-47,
-53,
-19,
36,
28,
64,
-28,
22,
0,
-70,
-42,
65,
-41,
26,
-49,
16,
-21,
12,
18,
12,
47,
-18,
-30,
34,
-47,
20,
-51,
-48,
15,
17,
-21,
-28,
-7,
-83,
-24,
58,
3,
0,
13,
14,
-22,
-4,
-14,
-15,
17,
0,
8,
-27,
-39,
46,
-5,
16,
-31,
-14,
8,
19,
33,
41,
39,
-53,
-31,
16,
-6,
-20,
40,
-24,
48,
-18,
-32,
23,
24,
-17,
26,
-56,
-48,
-24,
-43,
10,
13,
18,
-3,
-29,
-29,
6,
20,
-51
] |
MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
This canse was before this court on a former appeal (Lyon v. Chicago, M. & St. P. Ry. Co., 45 Mont. 33, 121 Pac. 886.) Upon the second trial the defendants prevailed and plaintiff has appealed from the adverse judgment. A somewhat extended statement precedes our former opinion, and only such facts will be restated as are necessary to illustrate the single question now presented. The line of the railway company’s road through Hellgate canyon was constructed along the river. At a particular bend in the river near Drummond, earth, rock and gravel were taken from the right of way for making grades and fills, with the result that a barrow-pit, deeper than the river channel, was excavated, leaving a portion of the natural surface of the earth between the pit and the river for an embankment or berm. In June, 1908, this embankment or berm was washed away. Large quantities of debris were carried upon plaintiff’s land, and the river itself cut a new channel through her property, causing the damage for which redress was sought in this action. The defendants were charged with negligence in excavating the barrow-pit to a point so near the river that the embankment remaining was insufficient in thickness and strength to retain the waters of the river within its natural channel, and because of this negligence the embankment gave way, with the resulting injury to plaintiff’s property. The defendants denied any negligence on their part and pleaded that the embankment was destroyed by an unprecedented flood or an act of God, and that the debris was carried to and upon plaintiff’s land by the waters of the river flowing through a slough and certain ditches which plaintiff maintained as a part of her irrigating system. Upon the trial the court submitted instruction No. 14, to which plaintiff objected upon the ground that “under the facts in this case, the going out of the berm or embankment made out a prima facie case of negligence against the defendants, and the burden was upon them to show that they exercised ordinary care and prudence in leaving the embankment as they did.” The same objection was made to instruction No. 15, but is not applicable at all, and that instruction is dismissed from further consideration. The objection to instruction 14 raises the only question which appellant has presented for determination.
If, by the objection made, counsel meant to urge that the burden of proof shifted to defendants, they were in error. Upon the issue of defendants’ negligence plaintiff had the affirmative, and every rule of law and logic imposes upon her the burden of proving that negligence as alleged, by a preponderance of the evidence. (Rev. Codes, sec. 7972; Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884; Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583; Woods v. Latta, 35 Mont. 9, 88 Pac. 402.) There is not any instance where from the bare fact that an injury occurs an inference of negligence can be drawn. (Benedick v. Potts, 88 Md. 52, 41 L. R. A. 478, 40 Atl. 1067.) We assume, however, that counsel meant no more than that the embankment gave way under such circumstances as pointed clearly to defendants’ negligence as the cause, and called for them to go forward with the proof in explanation of their connection with it.
The rule res ipsa loquitur invoked by appellant, when properly applied, operates to make out a prima facie case, but goes no further. (Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29; 8 Thompson’s Com. on the Law of Negligence, sec. 3635; 1 Elliott on Evidence, sec. 91.) It has the force and effect of a disputable presumption of law and supplies the place of proof necessarily wanting. (Spaulding v. Chicago & N. W. Ry. Co., 33 Wis. 582; Beeman v. Puget Sound Traction etc. Co., 79 Wash. 137, 139 Pac. 1087.) The maxim applies in negligence eases upon the theory that the plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, but that the defendant, having its exclusive management and control, and being thus more favorably situated, possesses the knowledge of the cause of the accident, and should, therefore, be required to produce the evidence in explanation. (Lynch v. Ninemire Packing Co., 63 Wash. 423, 115 Pac. 838; City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, Ann. Cas. 1912A, 108, 32 L. R. A. (n. s.) 59, 128 N. W. 817; Griffen v. Manice, 166 N. Y. 188, 82 Am. St. Rep. 630, 52 L. R. A. 922, 59 N. E. 925.) The rule does not apply, however, in any case where from the evidence different inferences may be drawn as to the producing cause of the injury (McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40; Andree v. Anaconda Copper Min. Co., 47 Mont. 554, 133 Pac. 1090); and since its effect is that of a presumption only, it cannot exist in the presénce of the known facts. (Gibson v. International Trust Co., 177 Mass. 100, 52 L. R. A. 928, 58 N. E. 278; Bell v. Town of Clarion, 113 Iowa, 126, 84 N. W. 962.) If the plaintiff is in position to allege the specific negligent acts which caused the injury and can produce evidence in support of the charge sufficient to make out a prima facie case, the doctrine res ipsa loquitur cannot be invoked, for to apply it under such circumstances would permit the jury to give double weight to the evidence: first to the, facts themselves, and also to the inference or presumption which the law deduces from the existence of those facts, or some of them. (1 Elliott on Evidence, sec. 92.)
Upon the trial plaintiff sought to prove in her case in chief the specific acts of negligence charged in her complaint, and that such negligence was the proximate cause of the injury to her property. The evidence thus produced, if believed by the jury, amply sustained her pleading and made out a prima facie case. . This was the view of the trial court also. The bill of exceptions epitomizes the proof and recites that “the evidence introduced in behalf of the plaintiff tended to show that the defendants were guilty of negligence, in connection with leaving the berm as it was left, and the testimony introduced in behalf of the defendants tended to show that the defendants were not guilty of negligence in that connection; the testimony of the defendants tending to show that the damage to plaintiff’s premises was caused by the waters of the Bergman slough overflowing her premises; the testimony of the plaintiff tending to show that the waters of the Bergman slough in no manner tended to cause the damage.”
Having established a prima facie case by evidence of the facts constituting the negligence which caused her damage, plaintiff could not invoke the rule res ipsa loquitur. The cause was properly submitted to the jury upon the evidence, not upon presumptions. Instruction 14 is not open to the objection interposed.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
[
-22,
49,
55,
-74,
2,
9,
5,
10,
33,
28,
40,
5,
49,
-26,
-5,
-40,
-48,
-63,
-11,
0,
-19,
-4,
79,
-43,
-18,
22,
2,
-62,
-8,
54,
14,
27,
-59,
41,
10,
6,
-14,
-11,
18,
-34,
13,
33,
-35,
-50,
78,
69,
102,
1,
-77,
2,
14,
-4,
11,
-16,
-99,
-70,
-26,
30,
-17,
-15,
3,
-24,
30,
40,
34,
-3,
-27,
-28,
16,
40,
-68,
50,
34,
-48,
0,
-1,
11,
4,
-34,
-39,
-33,
49,
27,
-4,
-10,
22,
-79,
25,
-1,
8,
9,
-10,
29,
16,
-19,
11,
-4,
-58,
-84,
26,
12,
23,
2,
6,
-33,
-32,
-48,
-32,
24,
-8,
23,
26,
-12,
-22,
-39,
-35,
22,
-68,
-18,
-37,
6,
-10,
-1,
-4,
-72,
4,
20,
-5,
11,
31,
-33,
3,
-6,
62,
4,
-9,
-23,
-25,
27,
77,
14,
-41,
25,
-16,
-48,
47,
40,
28,
-26,
-38,
-2,
-15,
8,
-41,
14,
-24,
-2,
-47,
59,
22,
33,
1,
15,
19,
-55,
55,
-9,
-56,
30,
-2,
17,
-48,
-2,
-18,
28,
-28,
-53,
-12,
26,
-29,
29,
-9,
14,
-14,
-27,
-17,
-12,
31,
9,
17,
47,
-31,
-30,
6,
-28,
17,
-41,
-5,
56,
-54,
16,
25,
-9,
3,
-28,
63,
-25,
55,
67,
-3,
76,
29,
-3,
14,
-16,
3,
32,
-51,
-10,
-3,
22,
-22,
-14,
11,
4,
43,
-26,
18,
39,
-13,
16,
-3,
33,
-11,
1,
17,
19,
15,
-28,
-15,
7,
10,
-28,
-45,
29,
16,
-9,
-20,
-17,
52,
-21,
-61,
-16,
-4,
11,
43,
-2,
21,
-42,
-34,
36,
63,
15,
3,
42,
0,
-35,
-34,
-12,
-22,
-7,
1,
3,
12,
-56,
-47,
41,
29,
-70,
49,
-16,
0,
-15,
9,
0,
22,
-28,
33,
-11,
51,
-22,
-45,
-14,
0,
1,
67,
53,
-15,
-3,
-17,
14,
-27,
-2,
27,
35,
54,
-15,
40,
7,
-17,
51,
0,
-18,
20,
23,
93,
36,
-47,
29,
0,
43,
15,
4,
-3,
-18,
19,
3,
-16,
-20,
33,
3,
45,
31,
25,
32,
-7,
-27,
-23,
-8,
8,
-24,
9,
23,
-70,
3,
9,
13,
-53,
-13,
-5,
-8,
54,
-33,
-19,
19,
-12,
12,
-27,
-34,
12,
38,
14,
52,
-12,
-5,
-48,
-26,
-40,
13,
8,
-21,
25,
-42,
5,
19,
-2,
37,
22,
-4,
6,
-21,
-12,
33,
4,
33,
40,
25,
-65,
-33,
36,
-23,
2,
32,
65,
-67,
1,
6,
68,
8,
-8,
4,
30,
-69,
16,
-25,
-23,
4,
-17,
-24,
-20,
-8,
7,
0,
-14,
-27,
25,
5,
29,
25,
29,
16,
-16,
36,
27,
-21,
-37,
72,
-50,
-27,
-3,
0,
-4,
29,
-14,
-11,
-3,
15,
-4,
-22,
45,
-25,
51,
1,
-19,
-46,
31,
18,
27,
27,
-35,
7,
5,
-5,
-12,
-26,
17,
0,
0,
38,
-8,
-25,
12,
-7,
-25,
-35,
-17,
6,
-50,
-18,
47,
53,
51,
34,
-43,
34,
14,
-21,
11,
-57,
7,
42,
-2,
-23,
41,
3,
-40,
25,
-10,
23,
-12,
-5,
32,
-7,
-33,
12,
5,
-33,
-49,
29,
-31,
8,
38,
-27,
-17,
-29,
24,
28,
-31,
11,
86,
34,
-12,
66,
-12,
4,
33,
7,
-15,
23,
9,
8,
-23,
-20,
-60,
-5,
7,
-59,
-19,
23,
-53,
12,
-45,
-54,
-4,
-53,
-37,
-31,
-1,
14,
-45,
-5,
43,
47,
-17,
-49,
16,
25,
0,
14,
7,
26,
25,
-5,
10,
-6,
-16,
-75,
-48,
-15,
-12,
-53,
28,
-4,
-29,
44,
61,
56,
-3,
47,
-75,
-16,
26,
8,
-38,
-12,
19,
-4,
-14,
-13,
34,
-68,
-27,
-58,
-4,
12,
50,
26,
2,
-7,
29,
-2,
-11,
9,
-23,
3,
-59,
-11,
-6,
-9,
51,
47,
-41,
-33,
49,
25,
-18,
-21,
-127,
-14,
30,
50,
-57,
-55,
8,
19,
8,
2,
-59,
28,
-4,
-9,
-44,
-19,
2,
-6,
-18,
-30,
40,
-77,
44,
-1,
52,
7,
89,
18,
-34,
58,
11,
9,
-16,
27,
19,
-21,
-9,
-51,
-7,
5,
41,
-13,
-10,
-23,
32,
19,
-22,
71,
30,
-23,
-13,
-41,
14,
10,
-24,
-16,
-17,
-9,
29,
-20,
55,
-35,
-45,
-23,
-24,
11,
21,
-11,
-45,
-1,
20,
35,
-10,
51,
-5,
-17,
-28,
16,
-58,
11,
46,
36,
31,
50,
-47,
6,
42,
12,
3,
31,
-21,
-12,
-69,
-5,
-36,
59,
11,
1,
41,
24,
12,
18,
22,
31,
3,
7,
0,
-48,
-4,
-27,
-13,
-49,
-11,
103,
-11,
0,
30,
-12,
22,
3,
32,
-23,
9,
30,
-12,
-22,
44,
13,
-10,
-34,
16,
-28,
-76,
34,
-2,
-12,
7,
-6,
-23,
27,
-9,
-14,
-18,
9,
-28,
7,
-14,
-26,
-49,
28,
20,
-10,
-29,
35,
-17,
-13,
-32,
6,
-23,
27,
-15,
-37,
19,
-19,
-9,
15,
-19,
-21,
45,
-56,
66,
50,
31,
-21,
-15,
-5,
17,
-21,
1,
-1,
36,
54,
-10,
-45,
15,
-29,
28,
-31,
8,
-49,
15,
-34,
68,
-6,
-20,
17,
25,
19,
38,
1,
-29,
10,
23,
-26,
1,
-17,
19,
13,
0,
-8,
9,
41,
-30,
-50,
43,
0,
15,
30,
7,
45,
-43,
11,
8,
80,
-37,
-20,
42,
0,
17,
12,
45,
-28,
-6,
-37,
23,
-38,
-11,
-3,
-30,
-61,
9,
-33,
62,
-41,
17,
50,
0,
-3,
-28,
-12,
-16,
30,
-3,
39,
7,
-22,
27,
13,
3,
-34,
1,
-48,
3,
-42,
83,
-1,
-23,
-38,
-8,
-35,
-3,
41,
34,
-23,
0,
4,
24,
-37,
-28,
-36,
26,
49,
59,
40,
-11,
5,
5,
-11,
-21,
-48,
12,
30,
-3,
12,
-19,
-2,
36,
-42,
-69,
-58,
-32,
21,
32,
-26,
-51,
-17,
-25,
-17,
28,
-9,
-1,
-24,
31,
22,
3,
-1,
-21,
-34,
1,
-42,
29,
-45,
43,
-35,
10,
21,
-5,
14,
27,
6,
-57,
-11,
-20,
29,
-62,
-4,
74,
55,
-56,
-11,
-47,
29,
-11,
50,
59,
21,
50,
18,
-10,
-87,
16,
26,
-67,
0,
8,
5,
-1,
33,
15,
22,
-36,
-24,
2,
-43,
-23,
29,
-40,
32,
-24,
23,
-17,
-15,
-68,
28,
-39,
-26,
36,
35,
-14,
11,
-44,
-1,
-8,
-47,
13,
20,
14,
-25,
-24,
-10,
-17,
-5,
-16,
0,
10,
-45,
31,
34,
0,
-1,
17,
21,
-55,
-21,
14,
45,
-13,
-29,
47,
-49,
26,
-31,
-19,
22,
0,
-26,
-3
] |
MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover damages for the death of Thomas Comerford, caused by the alleged wrongful acts of the city of Missoula and the James Kennedy Construction Company, committed in the course of installing a public sewer. Comer-ford was a laborer employed by the construction company in excavating a trench for the sewer-pipe, and while so engaged was hilled by a cave of the trench. The defense was a denial of negligence and a plea of contributory negligence on the part of the deceased. The trial resulted in a general verdict against the construction company, and it has appealed from the judgment and from an order denying its motion for a new trial.
There is not any difference of opinion as to the rules of law governing this ease, but appellant insists that the verdict is contrary to the evidence offered in support of the plea of contributory negligence, and conflicts with certain instructions given by the trial court. Whether either of these contentions should prevail depends altogether upon the consideration of that evidence.
According to counsel for appellant, but two witnesses, John Gustafson and John Murtz, gave testimony tending to disclose negligence on the part of Comerford which contributed to his death; but that evidence is to be viewed in the light of the further testimony that the deceased was a practical miner of some experience in that occupation.
The testimony of Gustafson may be summarized as follows: He was foreman of the construction company, in charge of the men at the time of the cave which caused the death, and was upon the surface some ten feet east of Comerford, who was facing east, shoveling dirt into a bucket at the bottom of the sewer trench, which was seventeen or eighteen feet deep. The trench was shored with sheathing placed perpendicularly with three or four sets of heavy stringers, placed transversely, and these kept in place by screw-jacks. From four to six feet west of Comerford, with his face to the west, was Murtz, laying the seiver-pipe, and west of Mm was a helper. About 2:30 o’clock on the afternoon of September 24, 1910, while Gustafson was overseeing the work, he noticed the sheathing “going down,” and, surmising a cave, called to the men, “Come up, boys; the sheathing is giving way,” or words to that effect, and this was repeated immediately, but he did not have time to call again. At this warning Murtz also called to Comerford to get out, and Murtz and the helper went to the west and escaped. “Comer-ford stood and looked up, but did not make any attempt to move away.” When the timbers started to give they moved slowly. It was three or four minutes between the time the first warning was given and the cave occurred. By going to the east four, six, or ten feet past his bucket and under the lowest screw-jack, which was two or three feet above the bottom of the trench, or between that jack and the one, two or three feet above it, Comer-ford could have reached a place of safety. The witness further testified: “I think he could have seen the wall moving.” The body of Comerford was held down in the trench by a piece of one stringer broken by the cave.
In the main, the testimony of Murtz is corroborative of that of Gustafson. He testified, however, that' the warning given by the foreman was “loud enough so we all heard it.” And again: “As soon as he said ‘Get out!’ I left my shovel on top of the pipe and ran back west. I did not run; I walked — walked as fast as I could. I was scared when the foreman told us to get out of there, because the bank was cracking, I had to get out. I left my shovel down and walked as fast as I could ten feet, and then the crash came. Comerford did not say anything to me when I told him to get out. He looked up. * * * I could not see that the bank was cracking, then, nor could I see the sheathing move. It was not bellied; there were no indications as far as I could tell that anything was wrong.”
It is now urged upon us that this evidence was uncontra-dicted ; that it established the defense of contributory negligence, and. in returning a general verdict for plaintiff the jury must have disregarded it arbitrarily. Upon the assumption that Gus- tafson and Murtz were credible witnesses, and tbeir testimony should be accepted as true* and the further assumption that Comerford heard and understood the warning in time to escape, an inference of contributory negligence might well be drawn, but the burden of proving contributory negligence was upon the defendant, and if upon the evidence as a whole the jury were justified in discrediting these witnesses or in drawing an inference favorable to the deceased with respect to the care exercised by him, or if they were unable to say that the evidence preponderated in favor of the claim that his own negligence proximately contributed to his death,, then the finding of the jury must be accepted by this court after it has been reviewed and approved by the trial court upon the motion for a new trial. Doubtless the jurors, viewing the conflicting statements of Gus-tafson and Murtz with reference to the period of time which elapsed between the warning and the catastrophe in the light of common experience, concluded that Murtz was much more nearly correct in his estimate, and that three or four seconds probably elapsed, rather than three or four minutes.
The testimony of Gustafson discloses that at the time of the cave, the contractors had cross-ties laid over the sewer trench to which rails were attached, and on this track a combination tram and hoist was running back and forth, lowering and raising the buckets in the trench and disposing of the dirt taken therefrom. The trial court by instruction 27 directed the jury that it was not enough that the warning was given in time for Comer-ford to escape, but that it must have been given loudly and distinctly enough to be heard and understood by a person of ordinary hearing at the place where decedent was working. By instruction 20 the court declared that a presumption, which had the effect of evidence, existed in favor of the deceased that he exercised due care for his own life and safety; such care as a person of his age, ability, capacity and experience ordinarily exercises. Viewed in the light of that presumption, and of the evidence that Comerford was a miner of experience, and of the circumstances surrounding him, his position in the trench seven teen or eighteen feet deep, with the noise of the tram overhead, and in the absence of any direct evidence that he heard the warning or understood its meaning, or saw the threatening danger, the jury might well have concluded from the entire case-made that he did not hear Gustafson, or, if he heard the call, that he did not understand it to be a warning, and that the circumstances were not such that he ought to have heard and understood.
This construction of the evidence disposes of the contention that the verdict is against the law as declared by the court in its instructions.
There are, however, facts and circumstances disclosed by the record which might well have prompted the jury to discredit the testimony of Gustafson and Murtz, but, in view of our conclusion above, these need hot be considered.
The judgment and order are affirmed.
Affirmed.
MR. Chief Justice BraNtly and Mr. Justice SaNNer concur.
|
[
-2,
35,
37,
-31,
-11,
-17,
-16,
-20,
45,
31,
19,
4,
31,
-14,
-4,
-28,
-46,
-59,
10,
25,
-25,
-26,
12,
-31,
-43,
7,
-16,
-58,
-53,
12,
1,
7,
-20,
-24,
17,
45,
49,
-38,
25,
18,
50,
32,
-9,
-42,
73,
33,
57,
-11,
18,
39,
-6,
-36,
22,
-11,
-19,
-55,
7,
52,
-26,
56,
-3,
-29,
18,
20,
15,
11,
-18,
11,
31,
32,
-37,
73,
27,
-48,
35,
-33,
-7,
-29,
-34,
-32,
-25,
3,
41,
-36,
-52,
25,
-90,
-40,
-9,
17,
66,
4,
72,
-3,
-4,
-10,
-36,
-46,
-74,
0,
24,
-22,
-40,
-16,
-29,
-20,
-42,
-32,
33,
38,
-2,
65,
29,
-10,
-41,
-18,
21,
0,
4,
7,
-5,
16,
-46,
-7,
-97,
-10,
18,
1,
33,
65,
-26,
-4,
-4,
25,
-25,
3,
-38,
2,
-1,
46,
25,
-3,
-1,
-20,
-63,
78,
-11,
7,
-21,
-19,
-25,
44,
14,
-35,
44,
-13,
2,
-56,
36,
92,
16,
14,
62,
7,
-15,
-4,
-12,
-26,
12,
-34,
-55,
-26,
-19,
-34,
81,
4,
-26,
-40,
-17,
-31,
-24,
17,
37,
-23,
-23,
-18,
17,
58,
28,
0,
35,
-22,
-42,
-2,
-45,
15,
-2,
-57,
42,
-20,
6,
18,
33,
-21,
-52,
19,
38,
-9,
64,
-47,
81,
-4,
-12,
14,
-29,
19,
15,
-47,
-32,
-40,
-20,
-16,
-33,
-8,
-22,
-13,
-16,
25,
-9,
-36,
-33,
-50,
33,
-22,
39,
-39,
-27,
-26,
-41,
-11,
12,
-4,
-9,
-5,
16,
51,
-21,
-27,
6,
34,
-9,
-24,
68,
2,
38,
-14,
-16,
29,
-16,
-21,
34,
14,
29,
12,
65,
-9,
-30,
-17,
-4,
19,
2,
1,
44,
1,
-59,
-46,
29,
44,
-17,
41,
-23,
-37,
-13,
-37,
21,
-26,
-54,
4,
-81,
-9,
13,
-30,
7,
-32,
25,
44,
76,
-27,
-6,
2,
9,
-16,
-32,
-43,
44,
54,
-51,
28,
11,
23,
13,
18,
-24,
21,
18,
74,
-12,
-9,
76,
38,
9,
-24,
8,
-40,
-29,
-10,
-29,
24,
-26,
32,
32,
45,
0,
75,
-24,
-53,
22,
19,
2,
-12,
-25,
6,
-1,
-71,
-52,
24,
44,
-6,
-15,
0,
25,
28,
-23,
28,
-10,
10,
40,
-19,
-27,
-21,
43,
-4,
-7,
9,
-29,
-75,
-33,
-30,
-32,
-7,
8,
-4,
-11,
0,
-3,
18,
33,
11,
-47,
91,
12,
-42,
22,
-38,
3,
12,
58,
-16,
-36,
43,
-26,
3,
38,
23,
-38,
23,
-5,
17,
-34,
12,
2,
26,
-36,
-22,
-3,
-23,
2,
2,
-28,
-22,
4,
-18,
0,
5,
-28,
-42,
-1,
15,
36,
3,
56,
29,
84,
11,
13,
-35,
67,
-5,
-29,
-27,
44,
5,
23,
-34,
-26,
-25,
-13,
37,
6,
-8,
-80,
33,
-13,
-11,
9,
9,
27,
27,
34,
-42,
37,
22,
-16,
27,
-28,
59,
24,
-19,
82,
18,
-11,
-7,
4,
-33,
-6,
48,
33,
-30,
42,
27,
-15,
0,
-2,
-35,
23,
0,
36,
-10,
-17,
-62,
18,
-13,
29,
34,
-32,
-10,
2,
0,
0,
39,
4,
10,
-27,
-60,
-10,
10,
-5,
-30,
2,
-32,
-35,
0,
-40,
6,
-44,
-26,
90,
-19,
-54,
21,
-21,
44,
14,
31,
-55,
25,
23,
11,
-1,
19,
17,
-12,
-10,
8,
19,
22,
-74,
-11,
39,
-38,
28,
11,
-27,
13,
-42,
-22,
-6,
18,
-7,
-60,
59,
-28,
50,
2,
-20,
-2,
0,
59,
9,
19,
10,
5,
-17,
12,
10,
-7,
-1,
-29,
-14,
15,
0,
16,
10,
28,
32,
32,
-5,
-10,
53,
-32,
-59,
77,
-7,
-25,
-13,
13,
-23,
54,
12,
32,
3,
4,
-7,
3,
-28,
28,
37,
8,
-13,
37,
-47,
17,
26,
4,
5,
-6,
-7,
30,
-10,
2,
-3,
-35,
7,
64,
0,
32,
-31,
-44,
15,
15,
9,
-53,
-15,
-6,
-15,
6,
-43,
-59,
44,
-1,
-19,
-24,
-11,
16,
-36,
8,
-27,
8,
-24,
13,
-47,
9,
-50,
32,
17,
-13,
24,
24,
-4,
-9,
10,
0,
6,
2,
-55,
-31,
16,
58,
21,
0,
-20,
7,
11,
-9,
5,
15,
15,
5,
1,
17,
26,
10,
-15,
-7,
-19,
58,
21,
-6,
8,
14,
28,
-4,
-17,
3,
16,
-66,
-1,
-10,
30,
-5,
27,
-27,
22,
40,
44,
-11,
6,
34,
-15,
-28,
1,
-21,
-52,
47,
-31,
-12,
20,
-33,
-11,
-52,
-14,
-12,
21,
52,
10,
51,
41,
-3,
-12,
7,
3,
-23,
5,
6,
-24,
43,
-29,
-14,
-28,
-40,
30,
-47,
-37,
36,
11,
-5,
-5,
18,
-100,
-27,
-5,
-21,
-11,
81,
13,
-2,
-26,
12,
-22,
-66,
-8,
-3,
-14,
6,
-20,
-39,
35,
-21,
0,
8,
-34,
22,
39,
-42,
12,
-49,
24,
49,
-27,
21,
32,
-42,
39,
-5,
-1,
-20,
36,
33,
-52,
-26,
14,
5,
-34,
-34,
-2,
38,
-43,
49,
47,
35,
-3,
-12,
1,
-2,
-37,
-2,
2,
25,
29,
7,
-33,
41,
-22,
-1,
-26,
-37,
-57,
56,
-15,
108,
5,
-15,
42,
54,
6,
-55,
25,
-9,
13,
53,
-12,
4,
8,
15,
24,
20,
-21,
0,
-6,
-7,
-50,
14,
2,
-16,
45,
-33,
16,
-48,
6,
2,
51,
-23,
-54,
19,
28,
-7,
-1,
60,
-16,
-6,
-10,
8,
15,
38,
39,
4,
-49,
26,
4,
90,
-65,
55,
-7,
-4,
-4,
11,
-1,
-50,
9,
41,
52,
-7,
-52,
50,
-20,
-4,
-13,
-35,
-32,
-22,
-28,
44,
-5,
-22,
-73,
-15,
-51,
-16,
68,
82,
-36,
-3,
40,
17,
-4,
12,
-5,
-2,
72,
55,
4,
-34,
-33,
0,
-2,
-66,
-23,
12,
31,
-58,
13,
-28,
26,
34,
-6,
-47,
-24,
-34,
14,
23,
-21,
-49,
-28,
0,
-24,
26,
-27,
39,
25,
24,
-61,
46,
22,
49,
-23,
-13,
-53,
-41,
-36,
59,
-49,
12,
63,
-44,
-50,
17,
10,
-45,
-21,
-14,
32,
-60,
20,
43,
74,
-6,
31,
-60,
24,
33,
69,
33,
16,
34,
53,
6,
-24,
-4,
43,
0,
-30,
29,
6,
44,
-11,
-33,
-2,
-24,
22,
0,
-24,
-17,
15,
-26,
-31,
-31,
-17,
20,
-2,
-49,
0,
-11,
15,
18,
-4,
-26,
11,
-64,
-24,
-17,
-8,
20,
-24,
23,
-18,
-14,
-30,
-35,
52,
-17,
-8,
28,
-26,
7,
35,
34,
-15,
-7,
12,
-18,
-32,
20,
1,
-17,
-12,
39,
-60,
22,
-63,
23,
5,
-18,
-25,
-18
] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought against the defendants, as copart-ners under the firm name of the Gallatin Valley Trading Company, to recover damages for an alleged breach of warranty of the quality of a seed drill sold by them to plaintiff on September 1, 1911. The warranty is alleged in the complaint as follows: “That the defendants sold and delivered to the plaintiff one Peoria drill, which the defendants warranted to the plaintiff to be * * * reasonably fit and suitable for the purpose of properly sowing the divers and sundry kinds of grains— wheat, oats, rye and the like.” The complaint alleges further, in substance, that the drill was not suitable for the purpose for which it was purchased; that the plaintiff used it to sow 116 acres of grain; that, as a result of the inefficiency of it, the crop harvested was much less than it would have been had the drill been efficiently serviceable; and that the plaintiff for this reason suffered damage to the amount of $1,147.20. The answer admits the sale of the drill, alleging that the plaintiff, who is a farmer and capable of judging for himself, made a careful inspection of it, and thereupon accepted it as suitable, executing to the defendants his promissory note in payment of the purchase price, with the understanding that if the drill proved unsuitable, he -might return it and receive back his note; that there was no express warranty of any kind; that the plaintiff used the drill to sow 65= acres without complaint; that, if it did not effectually accomplish the work for which it was intended, it was due to the fault of plaintiff in handling it; and that before the commencement of this action the plaintiff returned it to the defendants and received back from them his note. It is denied that he suffered any damage whatever. The reply admits the giving of the note; admits that plaintiff returned the drill to defendants and secured from them his note; and alleges that any use made by him of the drill after he discovered its defects was at the express instance and request of defendants, and upon their warranty that it would do the work for which it was sold, and their agreement to 1 ‘ stand good for any damage to plaintiff by reason of his continuing the use of the same, and the promise of defendants to remedy all defects” therein. The plaintiff had verdict and judgment. The defendants have appealed from the judgment and an order denying their motion for a new trial.
At the hearing in this court, counsel for the plaintiff submitted written objections to a consideration of the appeals on the merits, and asked that they be dismissed because of an alleged omission by counsel for defendants to observe the provisions of the statute in the preparation of his record on the motion for a new trial, and his failure to have the record on appeal properly authenticated. We have examined the questions presented in this behalf, and have concluded that they are without substantial merit. It is true the notice of intention states that the motion for a new trial would be made upon the minutes of the court and upon affidavits, and that the record contains what purports to be a bill of exceptions and statement of the ease, which contains no affidavits. It does not appear that any affidavits were filed. While the statute (Rev. Codes, sec. 6796) requires the moving party to state in his notice whether the motion will be made upon affidavits or a bill of exceptions, or the minutes of the court, it does not require him to pursue all these methods and rely upon all the grounds indk cated by the notice, though his notice states them all. If he pursues one of the authorized methods, and the record made in pursuance thereof is so formulated as to present properly one or more of the statutory grounds, he is entitled to he heard upon the record as made. He may not notify his adversary that he will pursue one method, and thereafter change to another; nor may he state two or more methods in the alternative. (Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904.) He may state all the methods conjunctively, however, and the abandonment of all except one is no reason why the motion should not he heard. It appears that the motion was heard and denied on January 5, 1914, and that on January 10 the court granted defendants an extension of time in which to “prepare, serve and file their hill of exceptions and statement of the case.” Thereafter a document was prepared under this caption and settled and allowed by the judge as “a hill of exceptions or statement of the case.” It embodies the minutes of the trial, and was prepared, as the statute contemplates, as the record upon which the order disposing of the motion was based. "We cannot conceive how the inadvertent use, by the court and counsel, of the expression “bill of exceptions” in designating the document, renders it any less a statement of the case which it also purports to be, such as is required by the statute (Rev. Codes, secs. 6799, 7114) to be presented to this court on appeal. The distinction between the two is that a bill of exceptions is prepared before the motion is submitted, whereas a statement is made up after the motion has been determined; yet the office of each is the same, viz., to bring into the technical record matters which would not otherwise constitute a part of it. In any event, since the document upon which the defendants rely was prepared as a statement of the case, its character as such is not affected by the fact that it bears a double designation.
While the judgment-roll is not authenticated by the clerk technically as such, the record contains copies, properly authenticated, of the several papers which go to make it up. This is sufficient under the statute (Rev. Codes, sec. 6799) to meet all requirements.
Many errors are assigned by counsel upon rulings made during the trial in admitting and excluding evidence, and upon the action of the court in submitting its instructions to the jury. He also submits the question whether, upon the case as made by the pleadings and disclosed by the evidence, the plaintiff is entitled to recover at all. It was presented during the trial by motion for nonsuit, and also for a directed verdict. A's we view the case, .this question must be answered in the negative. It is therefore not necessary to consider any of the other questions submitted.
It will be noted that, while the defendants deny that they warranted the efficiency of the drill, they allege that the plain- tiff returned it to them and received back his note — the consideration given for it. Plaintiff admits this in his reply, and seeks to avoid the legal effect of his admission by alleging that, after the defects in the drill were discovered, he continued to use it at the request of the defendants upon the assurance by them that they would compensate him for any damage he might sustain in doing so. While, therefore, in his complaint he predicates his right to recover upon the breach of warranty, in the reply he bases his right upon the subsequent undertaking of the defendants. This constitutes a distinct departure from the contract as alleged, and cannot be the basis of recovery in this ease. As we have frequently said, a reply is responsive to the affirmative matter stated in the answer, and cannot be looked to to aid the cause of action stated in the complaint. (Thornton v. Kaufman, 35 Mont. 181, 88 Pac. 796; Manuel v. Turner, 36 Mont. 512, 93 Pac. 808; Waite v. Shoemaker & Co., ante, p. 264, 146 Pac. 736.)
It is not necessary to refer to the evidence. It is sufficient to say of it that, aside from that introduced to establish the amount' of damages suffered by plaintiff, it tends to establish the guaranty by the defendants against any loss resulting to plaintiff from the use of the drill as alleged in the reply. The motion for nonsuit should have been granted. Let it be assumed that the warranty was made as alleged. When the plaintiff, after a fair trial of the drill, discovered tlie defects in it, lie Rad these options: (1) To rescind the contract if the facts justified it and recover the purchase price — in this case his note; (2) to retain the drill and bring his action for damages for a breach of the warranty; or perhaps (3) to bring his action for the fraud practiced upon him. What the measure of damages would be in the latter two cases it is not necessary to consider at this time. If the purchaser elects to exercise the first option, he is bound by his election, and cannot thereafter sue for a breach of the warranty. The measure of damages is the purchase price. (Abraham v. Browder, 114 Ala. 287, 21 South. 818; Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 27 L. R. A. (n. s.) 925, 101 Pac. 894; Mundt v. Simpkins, 81 Neb. 1, 129 Am. St. Rep. 670, 115 N. W. 325; Weybrich v. Harris, 31 Kan. 92, 1 Pac. 271; Luitweiler Pumping E. Co. v. Ukiah W. & Imp. Co., 16 Cal. App. 198, 116 Pac. 707; Osborne & Co. v. Poindexter (Tex. Civ. App.), 34 S. W. 299; Jack & Toner v. Des Moines & Ft. D. R. Co., 53 Iowa, 399, 5 N. W. 537. See, also, collection of cases in note to Houser & Haines Mfg. Co. v. McKay (supra), 27 L. R. A. (n. s.) 925.)
The rule as stated in these cases prevails in most jurisdictions, even though -fitle has passed to the purchaser, and the contract does not specifically stipulate for a rescission. In this jurisdiction the right of the purchaser to rescind does not exist if title has passed to him, unless the warranty was intended to operate as a condition (Rev. Codes, sec. 5121). Subject to this limitation, the rule as stated above must be correct, for the reason that by exercising his option to rescind the purchaser has elected to extinguish the contract (Rev. Codes, sec. 5062), and by doing so has dissolved entirely his relation with the seller created by it, thus incidentally adjusting also all the rights growing out of it. In Abraham Bros. v. Browder, supra, the rule is stated thus: “There must be a subsisting contract to support an action for a breach of warranty.- If the facts justify it, a buyer may rescind a contract and sue for the purchase money paid; or he may sue and recover damages for a fraud practiced upon him; or lie may affirm tlie contract and maintain an action for breach of warranty. He cannot insist that a contract has been rescinded, and yet recover on the contract.” In Osborne & Co. v. Poindexter, supra, we find this statement: “The plaintiffs might have tendered back the machine, and demanded their notes and money, or, at their option, might elect to keep the machine, and pay the price, and sue for damages in the difference in value of the machine as represented and warranted and as it really was, and for the special damages occasioned by the breach of the warranty. ’ ’ To the same effect is a statement of the rule found in Luitweiler Pumping E. Co. v. Ukiah W. & Imp. Co., supra, in support of which the court cites Abraham Bros. v. Browder, supra. “The buyer may not pursue two inconsistent remedies; if he chooses to exercise the special remedy by returning the article to the seller, he is then confined to a recovery of the purchase money paid, and cannot maintain an action for damages for a breach of the warranty.” (30 Am. & Eng. Ency. Law, 2d ed., 199.) In this case the admissions in the pleadings show that the contract was rescinded. Whether this was by virtue of an express agreement made at the time of the sale, as alleged in the answer, or by mutual consent of the parties when it was discovered that the drill was defective, the result is the same.
We shall not undertake to decide the question whether the plaintiff might have recovered upon the facts stated in the reply. He cannot have recovery thereon in this case. It is sufficient for a determination of the case as now presented to say that, having admitted that he rescinded the contract, he cannot recover upon allegation of a breach of it.
The judgment and order are reversed and the cause is remanded for further proceedings.
Reversed and remanded.
MR. Justice Sanner and Mr. Justice Holloway concur.
Rehearing denied March 29, 1915.
|
[
6,
-3,
29,
-46,
-7,
7,
-5,
0,
70,
10,
22,
16,
-27,
-21,
-19,
-22,
-10,
-61,
69,
30,
48,
-11,
59,
-19,
-26,
-18,
-78,
-17,
-9,
34,
-57,
35,
-11,
-25,
-62,
-29,
15,
34,
-20,
-57,
-23,
25,
34,
2,
62,
-11,
42,
-56,
29,
20,
62,
-27,
23,
4,
-60,
-42,
-9,
18,
-19,
58,
81,
-4,
90,
-32,
15,
-18,
-1,
22,
16,
17,
-34,
22,
-8,
-32,
-9,
-29,
22,
-24,
-74,
-20,
-5,
2,
32,
-42,
-37,
35,
-4,
-25,
-18,
-9,
-3,
13,
-19,
37,
71,
9,
-16,
43,
-61,
36,
21,
-10,
-57,
13,
-2,
-87,
9,
-1,
5,
49,
38,
59,
-29,
2,
2,
8,
29,
-50,
21,
-21,
-17,
34,
-30,
-27,
4,
32,
-17,
-29,
59,
1,
13,
6,
38,
59,
-8,
-32,
24,
-18,
11,
6,
-10,
-35,
-28,
21,
-6,
-16,
-13,
26,
-9,
-31,
-24,
-15,
-50,
-11,
23,
-63,
8,
-24,
30,
-34,
39,
-8,
-11,
-29,
-43,
44,
-33,
-18,
18,
48,
42,
-2,
2,
-7,
20,
5,
-4,
-44,
4,
-7,
-2,
4,
-39,
-30,
-19,
14,
15,
48,
27,
3,
17,
-27,
-2,
-1,
-51,
-19,
-26,
-9,
15,
-48,
77,
26,
81,
-42,
34,
-10,
0,
20,
-15,
14,
9,
7,
18,
-29,
-50,
28,
-9,
-19,
3,
-15,
25,
-9,
-18,
-22,
21,
-58,
1,
-2,
67,
-3,
-87,
-19,
12,
0,
10,
-37,
-26,
-31,
0,
17,
-9,
-48,
-46,
-26,
20,
37,
-36,
36,
16,
22,
-51,
10,
50,
9,
12,
-27,
20,
3,
15,
-42,
17,
-5,
-17,
-5,
23,
9,
-23,
10,
-4,
85,
-32,
-21,
54,
-36,
-12,
-18,
-9,
-26,
63,
-22,
14,
1,
-28,
2,
-1,
25,
42,
22,
-64,
12,
5,
10,
4,
-28,
29,
85,
-23,
5,
31,
28,
-21,
25,
-3,
-19,
12,
1,
2,
-33,
9,
-42,
-1,
8,
-5,
-17,
-59,
-10,
1,
0,
-17,
-4,
-45,
-5,
-31,
25,
27,
-13,
28,
-2,
38,
-12,
18,
-5,
32,
30,
-31,
-28,
44,
32,
32,
38,
59,
49,
19,
31,
-5,
28,
42,
-36,
22,
41,
9,
-5,
7,
35,
-27,
36,
35,
18,
4,
-12,
43,
11,
32,
-8,
15,
56,
-28,
-29,
-29,
50,
-44,
24,
27,
9,
0,
-30,
-52,
-42,
-14,
58,
32,
11,
-3,
-35,
28,
15,
-22,
28,
-40,
29,
-16,
-13,
28,
37,
-27,
-1,
2,
-70,
-27,
-11,
-42,
-18,
-44,
-41,
0,
6,
-15,
-43,
-27,
-49,
-28,
-55,
-66,
17,
24,
-52,
3,
37,
29,
-6,
9,
-10,
43,
7,
41,
-11,
38,
10,
-36,
4,
45,
30,
-6,
3,
-20,
-54,
4,
30,
-17,
58,
-11,
60,
-62,
-46,
10,
28,
15,
62,
49,
-41,
26,
-10,
53,
-9,
40,
17,
29,
-22,
33,
-64,
-3,
-14,
-31,
-5,
-27,
-31,
27,
-93,
15,
6,
35,
65,
25,
-20,
16,
15,
31,
6,
-17,
27,
38,
11,
38,
7,
-26,
-37,
-35,
50,
-16,
-11,
-2,
-28,
-6,
-35,
-34,
-40,
21,
-46,
67,
-10,
-23,
-45,
0,
-30,
-24,
9,
12,
-20,
56,
97,
45,
-32,
36,
13,
2,
5,
-25,
50,
-10,
4,
-10,
-58,
-51,
36,
8,
-6,
27,
-21,
60,
-13,
-28,
24,
-34,
22,
-11,
-25,
10,
1,
1,
-91,
-28,
19,
85,
-29,
-53,
4,
36,
-19,
-3,
29,
15,
-36,
10,
33,
10,
7,
-40,
21,
3,
-2,
24,
22,
-51,
-28,
23,
0,
-17,
13,
33,
-7,
-28,
9,
-23,
39,
67,
-52,
4,
-21,
6,
-25,
-10,
-30,
-51,
-84,
-16,
8,
-19,
12,
10,
48,
-30,
-22,
12,
-33,
9,
-37,
24,
-4,
22,
62,
-7,
-31,
-25,
9,
-26,
26,
-55,
-1,
24,
60,
-23,
-8,
19,
-23,
24,
-20,
-14,
-21,
13,
-34,
8,
-33,
-59,
16,
-23,
20,
-34,
-9,
-71,
-3,
-14,
13,
-17,
51,
-25,
3,
47,
8,
-52,
-9,
43,
-41,
9,
-5,
14,
-9,
-13,
36,
8,
-16,
-41,
15,
66,
19,
3,
15,
37,
-36,
-13,
3,
2,
-35,
21,
29,
14,
10,
-15,
31,
-14,
42,
57,
-32,
34,
10,
0,
-4,
24,
58,
1,
-48,
-1,
-23,
15,
61,
-29,
0,
10,
29,
18,
-56,
-19,
-19,
35,
26,
2,
0,
40,
4,
-59,
-43,
14,
28,
-1,
20,
1,
20,
-8,
2,
57,
-64,
17,
-40,
-8,
19,
-4,
-14,
10,
-17,
-24,
-41,
-7,
3,
24,
-8,
-6,
49,
-6,
57,
-45,
4,
1,
16,
-12,
30,
26,
68,
32,
5,
-49,
-40,
2,
23,
22,
51,
27,
51,
60,
-15,
18,
-20,
21,
-7,
6,
-42,
13,
-62,
-49,
4,
-44,
-37,
46,
53,
5,
-57,
-14,
21,
38,
-44,
-39,
-26,
18,
38,
-71,
5,
15,
20,
5,
7,
45,
-18,
-7,
-3,
8,
-19,
-27,
-45,
55,
40,
68,
14,
36,
3,
-21,
-33,
-56,
-4,
0,
1,
-30,
-26,
-13,
8,
16,
3,
44,
-31,
15,
-17,
43,
30,
-50,
0,
-5,
-7,
9,
1,
-8,
11,
34,
41,
-28,
7,
-14,
-6,
13,
43,
-19,
-15,
-18,
12,
36,
-33,
14,
32,
9,
-6,
1,
-10,
-61,
19,
-27,
21,
-10,
-11,
20,
8,
-55,
28,
4,
-9,
-42,
-17,
25,
-24,
-29,
-9,
14,
-38,
31,
5,
28,
-37,
-39,
-15,
45,
-56,
0,
-31,
8,
2,
-14,
58,
-11,
-36,
-16,
-37,
-18,
-45,
66,
-22,
-17,
-17,
-33,
19,
23,
-13,
-22,
-45,
1,
50,
-41,
-72,
-32,
36,
-7,
-18,
-24,
-24,
31,
-18,
-2,
-43,
45,
-17,
-48,
38,
-32,
-32,
-43,
-10,
32,
-31,
-87,
-27,
-41,
80,
17,
-13,
10,
0,
17,
-29,
-8,
-10,
2,
28,
-9,
-28,
0,
51,
-20,
-62,
64,
22,
7,
-3,
-54,
-59,
-61,
-30,
-4,
2,
76,
8,
-29,
-25,
14,
-21,
14,
31,
52,
20,
21,
52,
-17,
6,
-12,
-19,
65,
29,
32,
24,
-34,
-30,
27,
12,
-23,
42,
0,
-55,
3,
6,
11,
12,
14,
36,
53,
60,
13,
-11,
16,
-38,
-32,
57,
-19,
-20,
-53,
-17,
-39,
-9,
-16,
26,
-13,
5,
41,
-2,
16,
-3,
9,
-11,
26,
-28,
7,
-10,
-6,
28,
-55,
44,
-2,
-6,
-41,
-24,
49,
-19,
-35,
-9,
-17,
8,
-34,
-36,
-23,
-1,
10,
32
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Frank W. Mettler, an attorney duly admitted to practice in the courts of this state, having been adjudged to be in contempt of the district court of Lewis and Clark county, applied for his release from imprisonment upon habeas corpus proceedings. The sheriff has made return to the writ that he detained the petitioner by virtue of a certain order of the district court, which is attached to and made a part of the return and is as follows:
“ [Title of Court.]
“In the Matter of the Contempt of F. W. Mettler.
“The court having under consideration the disobedience of a subpoena by a witness who was duly subpoenaed in this court, and having placed the witness upon the stand and interrogated him as to the reason why he did not appear, F. W. Mettler, an attorney and practicing lawyer at this bar, interrupted the proceedings by making demands that he be heard after the court had told him that there was nothing to be heard, and he refused to sit down, and by his conduct, words and manner disturbed the orderly proceedings of this court, and by his insolent demeanor, angry words, is in contempt of this court, and is adjudged in such contempt, he will pay a fine of $300, and stand committed to the county jail until this- fine is paid.”
A demurrer has been interposed, and the only questions which call for solution are such as appear from the face of the return and test the jurisdiction of the court which entered the order; and the further inquiry whether this petitioner was held by legal process. In State v. District Court, 35 Mont. 321, 89 Pac. 63, this court, having under consideration a proceeding of similar character, said: “While there is some conflict between the early and later decisions as to the scope of the meaning of the term ‘jurisdiction’ as applied to a case of this character, the decided weight of authority now supports the view that, in order for the judgment to be proof against an attack made by habeas corpus proceedings, the court rendering it must have had jurisdiction of the person and of the subject matter, and, in addition thereto, must have possessed the power or authority to render the particular judgment which it did pronounce; and the absence of any one of these factors renders the judgment void, and consequently open to collateral attack. ’ ’ That the district court had jurisdiction of the subject matter is determined by the Constitution. (Sec. 11, Art. VIII, Const.; State v. District Court, 35 Mont. 51, 88 Pac. 564.) The order above discloses on its face that the court had jurisdiction of the person.
A contempt committed in the immediate presence of the court is designated “direct,” as distinguished from a “constructive” contempt, which is not committed in the court’s presence. A contempt directed against the dignity or authority of the court is “criminal,” as distinguished from a “civil” contempt, which arises out of a failure to obey an order made in a civil action for the benefit of the opposing party. A direct contempt may be punished summarily (Rev. Codes, sec. 7311), but a constructive contempt can be punished only after a hearing upon an affidavit showing the facts constituting the contempt (sec. 7311) and the answer thereto by the party accused (see. 7317).
It appears from the order under consideration that it was the purpose of the lower court to punish this petitioner for a criminal contempt committed in the immediate presence of the court, and by this process of elimination our inquiry is narrowed to an investigation of two questions: Had the district court authority to make this particular order? And was the paper authority in the hands of the sheriff effective for the purpose intended ?
Section 7309, Revised Codes, enumerates the acts and omissions which constitute contempt of court. Among them are:
“1. Disorderly, contemptuous or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.
“2. A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding. * * *
“9. Any other unlawful interference with the process or proceedings of a court.”
From the tenor of the order in question, it appears that this petitioner was charged with misconduct under one or more of these subsections. But in the wisdom of the legislature it was deemed incompatible with our ideas of the due administration of justice that the decision of the presiding judge should be final, and provision was made accordingly for a review by this court. (Sec. 7322.) While the right to punish for a direct contempt is inherent in the court, the procedure is purely statutory, and compliance with the law must be had. Having invoked the remedy by habeas corpus proceeding, the law does not permit the petitioner to deny the facts stated in the order adjudging him to be in contempt. Such facts as are stated are to be taken as true, but no presumptions or intendments are to be indulged against the accused. (Batchelder v. Moore, 42 Cal. 412.) To the end that the order adjudging one to be in contempt may be reviewed, section 7311 provides: “When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily, for which an order must be made, reciting the facts as occurring in such immediate view and presence.” Unless the order recites the facts which constitute the alleged contempt, no review is possible ; and if an order omitting such facts be permitted to stand, the very purpose of the statute would be defeated.
The only facts recited in the order above are that the accused attorney (a) demanded to be heard, and (b) refused to sit down. The recitals that Mettler “by his conduct, words and manner disturbed the orderly proceedings of this court, and by his insolent demeanor, angry words, is in contempt of this court,” do not contain any facts, but merely conclusions. What the attorney’s words were, what his manner was, what it was that constituted his insolent demeanor — none of these matters is disclosed by the order. Whether an order in this form is sufficient to justify any punishment is not a new question in this state or elsewhere, and the subject has become stale through oft-repeated declarations of courts and text-writers. In State ex rel. Breen v. District Court, 34 Mont. 107, 85 Pac. 871, this court had under consideration an order very similar to the one now before us, and concerning it said: “The conviction here was for a direct contempt. The judgment; however, is wholly insufficient to meet. the requirements of the statute. It does not contain, even by appropriate reference to the proceedings before the court, anything to show what the matters referred to as scandalous were, nor any fact tending to show what the manner of the relator was. It states conclusions and inferences only, drawn by the judge from the facts as they actually transpired, thus leaving this court no alternative but to accept these conclusions or to hold the order invalid. The purpose of the statute is to require the court to set forth the jurisdictional facts, so that the propriety of the judgment of conviction may be examined and reviewed. If adjudged sufficient as it stands, the order complained of would be conclusive upon this court, and review of it, as to the sufficiency of the facts to put the power of the court in motion, would be impossible. In á given case, where the contempt consists in the manner or bearing of the contemner, it may be difficult for the court to set forth the facts in any other form than by a shorthand rendering thereof, so to speak; but it is, nevertheless, necessary that the attendant circumstances be set forth, so that the propriety of the conclusion reached may be determined. ’ ’
If the contempt be one not committed in the immediate presence of the court, section 7311 above requires that an affidavit be filed which shall set forth specifically the facts constituting the contempt. If the contempt be committed in the presence of the court, the same statute declares that the order itself must set forth the facts, and this means that they must be set forth with the same particularity, as in case of constructive contempt they are required to be shown by affidavit. (Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372.) An attorney is an officer of the court, and, within the scope of his duties, his right to be heard in behalf of his client is guaranteed by the Constitution. It is for an abuse of his office only that he may be called to account in contempt proceedings. The bare fact that this petitioner made demands to be heard does not constitute contempt. If he was a mere interloper and stranger to the hearing then being conducted in court, that fact would have appeared in the order; in its absence, and in view of the fact that a hearing was being had, and that petitioner is an attorney duly admitted to practice in all of the courts of this state, it is but a fair inference that he Avas acting or attempting to act as counsel for the witness who was then being examined relative to his failure to appear in response to a subpoena served upon him. (Ex parte Shortridge, 5 Cal. App. 371, 90 Pac. 478.)
Assuming that petitioner was counsel for the witness who was being examined, he had the right to be heard, in his client’s behalf; but he did not have the right to abuse his privilege to insult the court or judge, or interrupt the orderly procedure which should characterize every judicial investigation. Arbitrary rulings or oppressive conduct on the part of the court will not warrant retaliation by an attorney by resort to undignified or insolent behavior. The law affords him ample redress. Because of the insufficient recitals in the order, we are not given an opportunity to review petitioner’s demeanor. If it was in fact contemptuous, he merited punishment; and if the contemptuous character was made to appear, the order would meet with our approval. But mere conclusions of the court afford us no means of determining whether the circumstances justified the order. Since our investigation is limited to a review of the order; and it fails to state the facts required by section 7311 above, no alternative is left but to declare it insufficient.
In the foregoing discussion we have assumed that the alleged •misconduct, of petitioner occurred in open court or during a hearing before the judge at chambers; but it is only by the barest inference that it can be said that the controversy arose at the courthouse, at the judge’s chambers, or in open court. The order fails to state that court was in session, if such was the fact, or that a hearing was being conducted at chambers, if that was the fact. The statute, which requires the order adjudging one in contempt to set forth the facts constituting the contempt, has a definite purpose in view, and to follow its mandate does not impose any hardship upon the court or judge.
Proceedings in contempt are in their nature criminal (State ex ret. B. & M. etc. Go. v. Judges, 30 Mont. 193, 76 Pac. 10), and the order adjudging one in contempt is in its nature a final judgment (New Orleans v. Steamship Co., 20 Wall. 387, 22 L. Ed. 354). But the sheriff cannot execute a judgment in a criminal matter or proceeding without competent authority. (Rev. Codes, sec. 9773.) Section 9377 provides: “When a judgment, other than of death, has been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.” The order returned by the sheriff as the only authority upon which the petitioner was confined in jail is not certified, and does not meet the requirements of the law.
Other objections to the order are urged upon us, but we deem it not necessary to consider them. In failing to state facts which constitute the alleged contempt, the order in question is fatally defective as a judgment in contempt, and the copy of the order in the hands of the sheriff was not sufficient authority to justify the detention of the petitioner. The demurrer to the return is sustained, and the petitioner is ordered discharged.
By direction of this court, petitioner was admitted to bail pending the final determination of this proceeding. The bond furnished in response to that order is discharged, and the sureties thereon exonerated.
Mb. Chief Justice Bbantly and Mb. Justioe Sanneb concur.
|
[
4,
24,
49,
3,
-44,
-30,
-3,
19,
-46,
31,
23,
-14,
2,
-39,
18,
-31,
-14,
3,
83,
-39,
-1,
-15,
53,
31,
59,
-21,
-26,
30,
-58,
33,
58,
28,
12,
4,
1,
-25,
55,
-34,
65,
-17,
-10,
-12,
-12,
-14,
6,
25,
-56,
-1,
-4,
-24,
30,
8,
-63,
39,
14,
0,
8,
-27,
16,
-25,
-19,
-30,
0,
16,
-8,
5,
-20,
9,
42,
-33,
21,
-22,
23,
-7,
33,
-11,
-27,
-9,
23,
3,
-22,
-6,
-63,
-16,
35,
-23,
-34,
-33,
4,
14,
30,
37,
-7,
-7,
1,
-12,
19,
-30,
-29,
2,
-33,
-53,
-65,
-1,
-13,
-13,
-59,
0,
38,
10,
1,
44,
9,
-26,
-80,
-54,
-37,
2,
25,
-15,
25,
-7,
-30,
23,
-27,
-28,
-21,
-20,
69,
15,
-16,
15,
34,
-35,
-7,
-1,
-28,
-32,
-64,
17,
-62,
-13,
20,
-16,
-1,
-36,
33,
33,
-27,
-18,
14,
48,
12,
53,
32,
-35,
19,
-28,
-13,
22,
15,
-28,
-13,
-41,
38,
21,
23,
-46,
6,
-50,
-1,
37,
-16,
56,
16,
-18,
-49,
17,
3,
15,
-31,
15,
14,
-36,
25,
23,
-10,
-4,
30,
-4,
-40,
88,
16,
-18,
-5,
-26,
11,
31,
25,
-1,
-34,
37,
0,
28,
5,
-18,
70,
-38,
12,
-61,
-29,
-8,
13,
-34,
-72,
-7,
3,
-22,
-62,
19,
23,
14,
7,
-19,
-44,
-4,
-16,
70,
1,
-43,
5,
61,
-34,
-27,
13,
-19,
26,
-40,
-15,
-1,
-46,
-32,
32,
-4,
27,
8,
-12,
-2,
-16,
-15,
-10,
-47,
12,
4,
23,
17,
-16,
-6,
-23,
-25,
14,
-37,
46,
27,
-14,
-40,
65,
17,
53,
12,
12,
30,
7,
18,
13,
-11,
-19,
-20,
12,
9,
32,
37,
-1,
31,
-1,
13,
23,
29,
42,
-28,
-22,
-50,
-16,
3,
14,
64,
-17,
-11,
19,
-18,
-17,
-1,
1,
45,
16,
-4,
-26,
1,
-23,
21,
44,
50,
-51,
-22,
12,
21,
-22,
19,
16,
-36,
27,
25,
7,
-42,
1,
0,
-8,
19,
49,
8,
26,
13,
-16,
28,
-11,
-30,
12,
7,
16,
12,
-5,
-85,
-42,
34,
-28,
28,
-39,
4,
-13,
-59,
0,
21,
-63,
43,
-48,
-19,
-32,
-14,
3,
-52,
47,
-40,
-31,
-14,
7,
24,
-5,
-58,
14,
-59,
-36,
-7,
4,
-89,
-20,
12,
9,
23,
-60,
6,
-4,
-43,
-7,
10,
1,
7,
35,
15,
-26,
-52,
-4,
44,
-27,
19,
-24,
34,
4,
-7,
73,
-29,
-25,
-2,
9,
-24,
-40,
-14,
-13,
88,
-13,
-18,
39,
-34,
39,
42,
36,
39,
-10,
22,
-9,
-41,
-25,
5,
44,
27,
74,
17,
3,
18,
10,
-12,
43,
7,
36,
22,
-37,
7,
-2,
15,
18,
17,
-21,
13,
-51,
-3,
-9,
-62,
-4,
-5,
2,
40,
-2,
-36,
22,
15,
-11,
52,
1,
-15,
32,
32,
29,
10,
-8,
-21,
38,
-13,
3,
0,
6,
4,
5,
-20,
-7,
12,
-21,
34,
-63,
30,
14,
9,
-44,
-50,
-15,
25,
5,
53,
21,
-13,
29,
30,
-29,
39,
11,
-23,
0,
11,
-31,
-20,
-7,
3,
-14,
17,
28,
3,
11,
-31,
64,
31,
0,
19,
22,
34,
57,
-7,
-21,
-8,
48,
17,
43,
1,
27,
14,
-35,
-40,
13,
12,
33,
-33,
31,
-37,
-41,
-12,
-52,
-70,
-25,
41,
-11,
-25,
60,
-75,
60,
-11,
60,
-34,
-31,
14,
-26,
-14,
1,
-16,
-26,
37,
60,
-23,
0,
-44,
-12,
-34,
22,
-9,
89,
31,
-13,
8,
-65,
53,
-52,
-13,
-14,
-3,
31,
51,
-30,
-11,
28,
13,
-17,
-16,
25,
-22,
-16,
-6,
-45,
-5,
25,
7,
6,
-14,
2,
-40,
11,
-11,
-23,
-28,
-28,
-30,
-7,
1,
39,
41,
-6,
54,
6,
18,
34,
-22,
33,
56,
-17,
35,
4,
17,
-32,
26,
-1,
67,
-2,
6,
-31,
-2,
-6,
-10,
1,
40,
-21,
-37,
-39,
-55,
3,
-19,
-48,
-24,
20,
59,
-55,
-47,
-19,
5,
-11,
-23,
34,
31,
-13,
-27,
-18,
-10,
52,
31,
46,
4,
71,
18,
-2,
-24,
4,
-65,
-10,
49,
59,
82,
20,
-20,
-51,
7,
18,
15,
-2,
26,
-6,
28,
-11,
-27,
18,
43,
10,
-13,
28,
9,
5,
-41,
12,
38,
-11,
-8,
37,
21,
-21,
28,
-7,
51,
22,
-11,
33,
-8,
7,
19,
-13,
0,
-12,
-55,
1,
-44,
16,
-30,
3,
7,
-5,
-26,
21,
-5,
-9,
28,
-16,
2,
-5,
-34,
-7,
-24,
-37,
-10,
21,
-30,
-27,
-64,
42,
20,
-23,
37,
0,
-5,
44,
5,
-14,
37,
-35,
-7,
-30,
-16,
-7,
28,
-43,
-31,
-26,
46,
-26,
67,
9,
-17,
13,
40,
62,
-11,
8,
-42,
-52,
18,
2,
-32,
-57,
-22,
-13,
29,
-19,
31,
-17,
15,
-37,
10,
7,
-25,
16,
-45,
32,
-10,
-39,
12,
-38,
18,
7,
-32,
-10,
40,
-52,
-53,
20,
-27,
-39,
36,
8,
53,
31,
-80,
-15,
12,
-18,
-15,
-3,
-35,
-36,
79,
22,
5,
37,
10,
12,
20,
18,
35,
-13,
6,
30,
-17,
45,
5,
55,
-17,
14,
21,
-17,
-64,
11,
-7,
75,
-3,
17,
62,
-19,
4,
-67,
36,
14,
-19,
4,
6,
18,
0,
7,
34,
-5,
19,
21,
-4,
-46,
-3,
-2,
25,
17,
-37,
-42,
14,
35,
24,
-64,
-17,
-63,
-48,
21,
-1,
-63,
22,
-23,
99,
-1,
-29,
2,
-23,
11,
-18,
11,
72,
-2,
-30,
40,
23,
-37,
24,
5,
33,
10,
-1,
-3,
19,
7,
-17,
-21,
6,
-2,
-16,
21,
14,
-18,
-13,
10,
-10,
11,
24,
-59,
-64,
-21,
-12,
-18,
21,
58,
25,
58,
-29,
-11,
-21,
-2,
26,
36,
11,
-16,
-2,
22,
19,
1,
-25,
56,
1,
-27,
93,
16,
58,
-53,
48,
-1,
-27,
46,
59,
-43,
-16,
-6,
-34,
-24,
-5,
4,
-2,
14,
-8,
-32,
-40,
13,
52,
52,
33,
-13,
-74,
-77,
40,
-15,
13,
-27,
1,
-34,
33,
-28,
9,
9,
-6,
-86,
-67,
-26,
2,
-33,
-1,
-10,
-14,
-38,
-18,
-8,
34,
-54,
2,
50,
9,
-19,
14,
12,
-11,
-37,
38,
2,
43,
-9,
26,
-3,
25,
-25,
-65,
54,
22,
7,
52,
36,
82,
-4,
-43,
-4,
0,
-24,
-38,
25,
-37,
35,
-52,
-53,
-13,
-9,
-16,
58,
7,
-12,
-26,
3,
48,
-15,
-17,
15,
53,
-16,
39,
-32,
-39
] |
MR. JUSTICE SANNER
delivered the opinion of the court.
This cause was tried in the district court of Blaine county before Hon. Frank N. Utter, one of the judges thereof. Verdict and judgment were for the plaintiff, and defendants moved for a new trial assigning all the statutory grounds. Judge Utter, having been disqualified, called upon Hon. John W. Tattan, the other judge of said court, to hear and determine the motion, and he, by a general order, granted the same. This appeal is from that order.
The appellant, laboring under the mistaken notion that the burden is on the respondent to vindicate the order, assigns no error nor seeks in any way to show its impropriety. It has been too often repeated to require citation that this court approaches every case with the assumption that the ruling appealed from is correct. The fact that the judge who made the order was not the one who presided at the trial affects the indulgence with which we view his judgment on the evidence, but does not deprive him of all judicial faculty in passing upon the record. (In re Williams’ Estate, ante, p. 142.) On appeal from such an order, therefore, as in all other cases, the appellant must take the burden.
There being nothing before us upon which the order appealed from may be questioned, the same is accordingly affirmed.
MR. Chief Justioe Brantly and Mr. Justice Holloway concur.
Rehearing denied March 9, 1915.
|
[
-47,
14,
8,
-8,
5,
-7,
-12,
-13,
-6,
28,
-16,
-14,
-4,
-36,
-3,
-72,
-25,
-6,
-2,
4,
14,
10,
-42,
5,
7,
-76,
-5,
21,
-7,
0,
46,
-35,
-18,
29,
38,
7,
-11,
18,
-5,
6,
-7,
19,
-9,
-36,
-4,
-46,
-27,
-51,
9,
-1,
-11,
-65,
-29,
54,
17,
21,
-10,
46,
32,
3,
-8,
0,
-15,
2,
0,
-3,
12,
-41,
10,
-25,
-24,
22,
19,
-4,
12,
11,
-28,
-7,
-12,
11,
-32,
17,
10,
12,
-36,
3,
21,
-2,
-14,
3,
-52,
15,
0,
13,
-15,
2,
39,
-36,
-28,
-23,
36,
-59,
3,
27,
6,
-20,
-56,
44,
35,
-16,
18,
43,
-20,
5,
-8,
-34,
55,
22,
-1,
-2,
14,
36,
22,
-6,
3,
5,
10,
7,
44,
-1,
-1,
16,
0,
7,
-16,
2,
10,
-80,
-100,
32,
1,
-24,
-2,
-7,
-2,
1,
20,
7,
5,
-8,
27,
39,
25,
54,
-15,
-14,
9,
-27,
38,
-13,
11,
2,
1,
23,
34,
36,
15,
7,
15,
-32,
17,
-35,
0,
50,
8,
42,
12,
-35,
-6,
6,
3,
44,
29,
-38,
-8,
-11,
-19,
47,
5,
-29,
-15,
-4,
13,
6,
-16,
-23,
15,
-14,
19,
0,
28,
13,
31,
10,
-9,
14,
20,
-21,
3,
-17,
-12,
-37,
0,
36,
0,
19,
-39,
-15,
-43,
-2,
-2,
68,
-25,
-42,
19,
-21,
41,
6,
-3,
17,
-45,
21,
16,
3,
-3,
-27,
2,
-17,
-40,
-32,
15,
24,
-11,
-31,
-19,
22,
35,
-15,
9,
3,
64,
14,
39,
28,
13,
0,
23,
-29,
-62,
-64,
24,
2,
3,
20,
-15,
-68,
-31,
-9,
19,
-13,
-3,
-20,
39,
16,
8,
-44,
31,
-2,
29,
-4,
-4,
-14,
14,
8,
-54,
0,
26,
6,
16,
-27,
4,
-34,
27,
-6,
19,
2,
-22,
1,
25,
-47,
-4,
-51,
-6,
27,
23,
1,
-17,
-12,
-9,
45,
8,
51,
-30,
20,
23,
56,
-48,
12,
-2,
13,
-56,
1,
-39,
-46,
-11,
31,
13,
0,
-8,
-9,
15,
22,
8,
7,
-27,
-21,
64,
49,
34,
-26,
1,
-23,
-14,
0,
31,
-5,
-11,
28,
5,
40,
-24,
13,
-40,
19,
-37,
-15,
35,
-46,
-16,
8,
12,
-25,
31,
-39,
21,
41,
-32,
-22,
11,
-22,
-16,
-15,
27,
-1,
20,
-3,
0,
48,
-22,
-5,
-6,
24,
24,
-6,
16,
-8,
69,
20,
-43,
11,
8,
15,
-19,
13,
-3,
-13,
-6,
-10,
-34,
-13,
-48,
12,
1,
-2,
-92,
-14,
-26,
-33,
15,
-20,
5,
-38,
15,
-1,
40,
1,
6,
16,
0,
-6,
45,
-27,
3,
-13,
11,
-3,
-18,
-5,
49,
-32,
35,
9,
-11,
-59,
-20,
24,
26,
9,
12,
0,
0,
15,
-31,
57,
-16,
-64,
0,
61,
33,
32,
3,
10,
29,
13,
-11,
47,
41,
-55,
22,
-2,
-1,
1,
12,
27,
-52,
23,
0,
5,
47,
10,
-12,
34,
11,
-29,
43,
28,
-13,
-42,
20,
-30,
0,
-2,
-13,
-21,
46,
48,
22,
-30,
27,
-6,
-16,
5,
-22,
-52,
-34,
-16,
-21,
-28,
1,
-25,
-39,
21,
27,
-60,
16,
-3,
62,
-32,
-20,
37,
30,
-32,
13,
15,
-20,
47,
23,
-1,
-11,
-47,
40,
-9,
-18,
-25,
-7,
-5,
-5,
-30,
69,
-39,
25,
40,
-28,
-39,
-50,
-1,
-4,
-32,
4,
-34,
-53,
-36,
60,
7,
-11,
-11,
-34,
9,
10,
-31,
28,
40,
18,
45,
7,
-12,
1,
-18,
3,
27,
43,
6,
-27,
-24,
1,
5,
7,
-56,
-37,
-19,
34,
-20,
-36,
-24,
25,
-47,
-12,
-8,
23,
-19,
-18,
25,
-56,
-17,
-4,
-13,
13,
36,
-13,
-25,
-24,
13,
0,
23,
-43,
-12,
13,
9,
49,
-9,
-44,
20,
-13,
29,
3,
-42,
9,
7,
27,
17,
-29,
23,
-5,
14,
37,
41,
24,
-8,
89,
-12,
-40,
10,
27,
-8,
25,
-42,
-33,
-1,
-36,
-12,
25,
24,
-4,
35,
3,
66,
1,
26,
-51,
17,
26,
10,
12,
-15,
0,
-11,
1,
19,
19,
36,
32,
45,
19,
-70,
-12,
-17,
-31,
-14,
5,
-12,
19,
-12,
-36,
2,
-34,
47,
2,
25,
20,
52,
20,
-21,
6,
40,
-34,
-20,
42,
24,
-27,
-7,
51,
-24,
-11,
32,
-22,
-39,
-15,
51,
-20,
12,
-11,
18,
22,
59,
-17,
45,
9,
9,
34,
-72,
32,
16,
12,
12,
2,
15,
-4,
-14,
10,
24,
-13,
-11,
-70,
13,
-1,
50,
35,
-15,
-41,
-60,
-20,
-30,
1,
21,
42,
0,
-4,
30,
35,
-11,
24,
50,
20,
13,
-53,
-19,
-3,
-10,
26,
17,
-30,
-26,
-14,
45,
5,
69,
7,
-9,
-39,
-3,
25,
-16,
-6,
-22,
-31,
-29,
-19,
23,
-39,
-26,
41,
15,
-6,
31,
-52,
-18,
0,
-32,
-50,
9,
60,
-9,
8,
-46,
10,
13,
12,
-11,
33,
12,
-29,
-34,
-11,
28,
31,
-20,
-40,
74,
-21,
37,
0,
45,
18,
7,
-17,
-8,
-11,
-10,
-16,
67,
9,
-15,
28,
16,
-27,
26,
8,
51,
-19,
38,
4,
-8,
-16,
-58,
2,
-53,
-5,
13,
18,
-5,
-9,
14,
41,
4,
0,
-13,
32,
1,
-10,
31,
44,
-51,
-41,
39,
18,
-16,
49,
9,
5,
-35,
-17,
32,
9,
13,
-8,
23,
-20,
-6,
12,
30,
-15,
2,
-6,
26,
-43,
-16,
-3,
-6,
-5,
43,
2,
-40,
-11,
-23,
20,
14,
6,
-22,
10,
22,
-14,
-11,
8,
15,
-29,
0,
-18,
17,
25,
4,
-47,
-77,
-46,
0,
-23,
29,
19,
-21,
5,
37,
13,
14,
39,
34,
-3,
17,
-68,
-61,
36,
8,
-22,
-9,
44,
13,
-43,
-16,
-33,
28,
-10,
31,
21,
-50,
-14,
-45,
3,
42,
-40,
-54,
3,
7,
5,
18,
-73,
0,
-27,
-25,
7,
-37,
-13,
44,
-43,
-13,
1,
-23,
-3,
9,
-14,
9,
-51,
16,
2,
-33,
10,
41,
24,
3,
15,
-30,
-25,
39,
8,
26,
-25,
42,
-14,
-11,
-60,
-22,
36,
1,
-22,
33,
-10,
2,
0,
32,
-14,
-8,
6,
1,
-59,
18,
-28,
-36,
29,
7,
41,
2,
-11,
13,
32,
-6,
-14,
-9,
7,
-5,
-9,
-57,
-23,
-45,
28,
-5,
23,
-13,
8,
58,
-37,
8,
2,
-17,
-21,
1,
-2,
6,
51,
-39,
6,
1,
-28,
-27,
-22,
-14,
-37,
38,
-8,
33,
70,
-63,
-19,
2,
-13,
27,
19,
-49
] |
PER CURIAM.
It is hereby ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed in accordance with stipulation of counsel.
|
[
-90,
-34,
30,
-3,
34,
5,
2,
-24,
7,
-49,
-61,
28,
-93,
-20,
-36,
27,
-39,
-40,
-12,
-23,
37,
85,
44,
-21,
-6,
-37,
12,
28,
96,
-29,
-4,
-6,
-41,
67,
-2,
-45,
29,
13,
5,
-4,
-8,
46,
20,
40,
-9,
-43,
55,
-2,
49,
37,
-15,
58,
-31,
-42,
-62,
-4,
-7,
20,
46,
-16,
-48,
22,
3,
14,
13,
-16,
12,
-28,
4,
29,
-40,
42,
69,
4,
30,
1,
25,
-18,
-16,
25,
6,
63,
27,
38,
-19,
52,
54,
105,
-35,
6,
-48,
-2,
13,
-50,
-55,
18,
67,
-15,
-1,
12,
27,
28,
37,
-32,
5,
-76,
36,
4,
-5,
22,
10,
5,
-20,
-25,
-24,
51,
-27,
14,
48,
38,
3,
18,
13,
12,
6,
27,
20,
4,
5,
-20,
-20,
40,
13,
24,
23,
30,
35,
35,
6,
24,
25,
-42,
-6,
29,
-23,
-17,
-26,
37,
-1,
-21,
34,
0,
-20,
62,
40,
24,
-37,
-62,
74,
79,
14,
-20,
-12,
12,
8,
12,
-32,
-38,
10,
22,
17,
-1,
52,
15,
-41,
21,
-43,
42,
10,
36,
5,
23,
13,
-16,
-51,
-2,
-69,
43,
3,
-46,
-33,
-35,
20,
25,
43,
-54,
32,
14,
10,
-33,
-54,
34,
-53,
-81,
-14,
5,
-53,
-54,
7,
-24,
14,
1,
22,
12,
18,
43,
-36,
35,
22,
47,
-11,
-37,
1,
16,
39,
-45,
-38,
73,
36,
57,
18,
-15,
-38,
-4,
31,
-9,
45,
47,
7,
-66,
-50,
36,
57,
-37,
-38,
10,
99,
94,
55,
-49,
63,
-13,
109,
-36,
16,
-27,
-36,
64,
-8,
-30,
10,
-4,
-34,
2,
-27,
46,
31,
21,
32,
-1,
-17,
33,
20,
7,
30,
-9,
-48,
-52,
-4,
29,
-52,
0,
-28,
-31,
1,
0,
-5,
-56,
-6,
-5,
0,
12,
9,
17,
24,
48,
-70,
53,
-42,
-49,
-3,
-21,
-30,
17,
57,
19,
-15,
-40,
39,
-66,
-47,
63,
19,
10,
-50,
69,
-67,
-48,
-4,
6,
-8,
6,
-74,
34,
-20,
-53,
35,
50,
55,
51,
32,
27,
4,
-11,
-33,
118,
19,
78,
50,
31,
-28,
3,
-27,
21,
18,
-46,
51,
14,
25,
23,
-66,
15,
1,
-28,
41,
-66,
5,
-42,
-26,
31,
-4,
23,
91,
-31,
51,
-11,
36,
56,
-43,
15,
-31,
6,
-14,
-77,
-50,
-6,
-19,
3,
-36,
-4,
-19,
12,
93,
-16,
6,
31,
47,
78,
-34,
-13,
-4,
-35,
14,
-32,
-99,
29,
-3,
53,
12,
15,
31,
-32,
-18,
6,
-27,
-22,
20,
-7,
-3,
27,
-60,
64,
16,
-4,
70,
2,
-1,
49,
51,
-17,
23,
13,
-20,
35,
-38,
68,
-4,
-25,
4,
0,
17,
-63,
48,
70,
-23,
40,
20,
10,
18,
68,
-20,
-14,
14,
-22,
-61,
2,
-31,
-50,
-10,
-19,
8,
-18,
47,
3,
0,
-6,
-34,
73,
-30,
12,
-8,
-5,
-64,
-67,
-63,
15,
28,
14,
-4,
-23,
-71,
-42,
-30,
-24,
6,
-28,
-27,
-18,
-54,
-35,
70,
-3,
24,
26,
-14,
11,
31,
50,
-18,
-33,
-23,
-1,
-29,
-9,
-50,
-48,
-37,
-23,
-114,
-35,
40,
-16,
-38,
30,
24,
-13,
81,
-28,
44,
-31,
23,
-56,
36,
28,
3,
38,
-23,
18,
-15,
-7,
-56,
-40,
-44,
-15,
33,
-60,
-16,
36,
10,
13,
-25,
-1,
-17,
28,
35,
9,
-18,
-33,
39,
-59,
-22,
10,
42,
-3,
40,
67,
29,
93,
54,
-8,
-11,
-1,
-35,
2,
15,
6,
-62,
-26,
64,
-39,
29,
-51,
-45,
3,
-29,
40,
4,
-27,
-4,
44,
22,
-8,
7,
-15,
40,
0,
51,
-35,
-26,
-46,
-13,
17,
-43,
-17,
-37,
19,
-26,
-10,
17,
-51,
-26,
10,
57,
-49,
37,
-44,
4,
22,
-20,
66,
-53,
-44,
20,
20,
-17,
-20,
-5,
30,
9,
19,
77,
18,
-22,
-11,
-36,
-52,
1,
65,
-14,
78,
5,
36,
-31,
46,
66,
15,
-67,
-40,
-33,
16,
43,
90,
-11,
-18,
-16,
52,
-4,
77,
-19,
-51,
-69,
30,
-16,
-73,
20,
5,
53,
-16,
61,
47,
26,
46,
-23,
-27,
17,
-31,
-13,
-48,
-5,
-12,
-77,
-58,
-17,
-45,
-8,
52,
-16,
65,
-28,
13,
17,
40,
22,
5,
-2,
7,
29,
58,
-106,
-81,
-16,
-13,
-72,
16,
-31,
-5,
55,
5,
-35,
23,
51,
-33,
1,
-30,
-2,
-6,
3,
3,
73,
-33,
33,
-23,
35,
24,
-42,
-34,
-45,
-11,
-41,
8,
-28,
-17,
-63,
38,
-9,
-10,
-49,
-49,
-8,
-85,
23,
8,
10,
-17,
-3,
-49,
-9,
-8,
13,
5,
11,
-21,
38,
33,
-21,
-78,
-27,
-4,
-45,
-11,
-38,
40,
34,
-9,
0,
-8,
-53,
46,
21,
-24,
54,
-76,
-18,
19,
-1,
-7,
54,
-1,
14,
59,
-21,
-37,
21,
51,
46,
28,
13,
32,
-102,
-3,
-16,
5,
120,
-33,
-74,
-24,
-14,
29,
32,
39,
-19,
-63,
-52,
28,
18,
53,
-18,
-40,
17,
-2,
16,
8,
-20,
26,
17,
-19,
-23,
-47,
12,
-47,
44,
35,
26,
-22,
-7,
59,
-41,
22,
-13,
-17,
7,
35,
-45,
-1,
-3,
58,
16,
-77,
21,
-29,
4,
-24,
-5,
46,
-3,
-24,
-1,
-19,
-23,
-5,
69,
-62,
-44,
74,
-43,
6,
-6,
-53,
-24,
-14,
-52,
25,
1,
17,
19,
-18,
-27,
80,
13,
-5,
-22,
3,
44,
49,
30,
-3,
23,
11,
25,
-42,
18,
5,
-2,
-38,
-34,
45,
-43,
-2,
21,
-1,
-81,
-17,
-13,
8,
-2,
-31,
18,
-15,
9,
24,
53,
8,
-68,
-24,
-8,
1,
-42,
-67,
-60,
39,
56,
14,
0,
57,
63,
58,
-72,
-2,
22,
11,
-18,
-23,
44,
2,
37,
17,
-92,
42,
-39,
-19,
-24,
52,
-24,
41,
44,
27,
-8,
-25,
35,
0,
72,
66,
-26,
7,
19,
-31,
4,
-14,
10,
-42,
21,
-46,
-1,
3,
-46,
-79,
-28,
0,
-33,
37,
-15,
-5,
-10,
26,
-4,
-1,
-1,
-40,
56,
-19,
44,
-17,
-17,
-12,
-24,
-40,
0,
81,
-2,
-33,
-34,
-70,
-62,
44,
-64,
-4,
-53,
22,
8,
23,
-22,
40,
31,
10,
-28,
-27,
30,
-18,
-8,
15,
-45,
-63,
36,
-45,
-109,
27,
-22,
7,
-5,
-81,
28,
34,
13,
-75,
-38,
-22,
-1,
9,
18,
22,
-49,
47,
16,
-54,
-15,
66,
2,
36,
0,
-21,
2,
31,
36,
-22,
40,
-43,
3,
-9,
14,
-8,
-16,
-3,
18,
-52
] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The respondent, plaintiff below, brought this action to recover damages for injuries alleged to have been caused by the negligence of the Great Northern Railway Company and its switching crew, two of whom were joined with the company as defendants. The answer denies negligence on the part of defendants or any of them, and pleads contributory negligence as well as assumption of risk. Trial was to a jury who determined the issues against the defendants, and from the judgment entered on the verdict, as well as from an order denying their motion for new trial, they have appealed. Several questions are presented which will be considered seriatim.
1. Upon the selection of the jury and after twelve men had been passed for cause, the appellants each demanded and sought to exercise four peremptory challenges. This was not permitted, the court ruling that they were only entitled to challenge collectively. As the result, there were left upon the jury, after all the peremptory challenges thus allowed had been exhausted, three persons who had been severally challenged by the appellants but upon whose rejection they did not agree. Their contention is that under section 6740, Revised Codes, each of them was entitled to exercise four peremptory challenges, and this is claimed to be based upon the language of the statute as well as upon its history. The section reads as follows: “Each party may challenge the jury or jurors, as follows: 1. The panel or array. 2. For cause. 3. Peremptory. There can be only one challenge on a side to the array or panel, which may be made by one or more of the parties. A challenge to the array or panel may be made and the whole array or panel set aside by the court when the jury was not selected, drawn, summoned or notified, as prescribed by law. Challenges to individual jurors are for cause or peremptory. Each party is entitled to four peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff. ’ ’ It certainly cannot be said that this provision is unequivocal. If “party” means each individual upon either side of the cause, then a contradiction resides in the expressions “each party may challenge the array,” but “there can be only one challenge on a side to the array.” It is manifest, of course, that the use of the words “party” and “side” may have been studied and purposeful; but it is not manifest that the particular purpose was to allow four peremptory challenges to each individual defendant in every case. A case in which there is one plaintiff and two or more defendants, each exercising the same number of peremptory challenges, presents difficulties in the way of obeying the mandate to challenge “alternately commencing with the plaintiff,” and these difficulties are not to be needlessly multiplied. It is said that if the legislature intended to require defendants to join in their' challenges, it could have said so in apt terms, such as appear in the provisions relating to criminal trials (sec. 9244, Rev. Codes). This is true. It is also true that if the statute had meant to authorize four peremptory challenges by each individual plaintiff or defendant, such intent could have found unmistakable expression. So, too, the fact that section 6740 first appeared in this state as section 1059, Code of Civil Procedure of 1805, supplanting a section of the Compiled Statutes (sec. 257, Code Civ. Proc.), which did expressly require parties on the same side to join in their challenges, is apparently of much significance. But this significance is more apparent than real. Words and phrases which have acquired a particular and appropriate meaning in law are to be construed according to such meaning (Rev. Codes, sec. 15). When section 6740 appeared for the first time in our Code, it was, and from an early date had been, universally held that the words “each party” used in the connection there presented, mean each side or each party litigant, and not each person of whom the respective sides or parties litigant are made up. (Schmidt v. Chicago & N. W. Ry. Co., 83 Ill. 405; Sodousky v. McGee, 4 J. J. Marsh. (Ky.) 267; Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Bibb v. Reid, 3 Ala. 88; Snodgrass v. Hunt, 15 Ind. 274; Stone v. Segur et al., 11 Allen (Mass.), 568; Bryan v. Harrison, 76 N. C. 360; Blackburn v. Hays, 44 Tenn. 227; Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772.) So far as civil cases were concerned, special expression was required, not to state this meaning but its opposite; and in the absence of unequivocal language to the contrary, the persons composing each side or party litigantwere required to join in the exercise of peremptory challenges. In criminal cases, and for very obvious reasons, the rule was exactly the reverse. Defendants jointly tried for a public offense were each presumed entitled to the number of peremptory challenges fixed by law, and an explicit provision was necessary before they could be required to join; and this is the explanation of section 9244. Nor is the construction thus given to section 6740 without excellent reason. It is not to be supposed that a statute was intended to create an absurdity, and yet we have only to imagine the existence of several individual plaintiffs or defendants, each exercising four peremptory challenges, to see the possible result; instead of a speedy trial of the issues by an impartial jury, a long-drawn and expensive preliminary proceeding, resulting in the elimination of every talesman whose intelligence or freedom from bias might fairly commend him for the particular duty. As said by the supreme court of Illinois: “Had there been twenty tenants seeking damages, each holding by a separate lease, appellant’s argument would lead to those tenants being permitted to exercise sixty challenges while the petitioner could use but three, and that, manifestly, would not accord with the intent of the statute.” (Freiberg v. South Side Elevated R. Co., 221 Ill. 508, 77 N. E. 920.) We need not doubt, however, that since nominal defendants who are in fact hostile to each other are “parties litigant,” they are entitled to challenge as such within the meaning of section 6740. (Hargrave v. Vaughn, supra; Rogers v. Armstrong Co. (Tex. Civ.), 30 S. W. 848; McLaughlin v. Carter, 13 Tex. Civ. 694, 37 S. W. 666; Hogsett v. Northern Texas Traction Co., 55 Tex. Civ. 72, 118 S. W. 807; Levyn v. Koppin (Mich.), 149 N. W. 993.) Whether such hostility must appear on the face of the pleadings, or whether it may be shown in some other way at the time the jury is selected, we need not determine because no such hostility was ever made to appear in any way in the case at bar. The answer was joint, was signed by attorneys representing all the appellants and asserted defenses common to all of them. As between them there was not, by pleading, representation or evidence, any conflict of interest disclosed or any issue of any sort. They constituted but one party defendant, and the ruling by which they were limited to four peremptory challenges was correct.
2. At the close of respondent’s evidence, appellants “jointly and severally” moved for a nonsuit, which was denied; later and at the close of all the evidence, they similarly moved for a directed verdict which met the same fate. Claiming error in these rulings, the appellants now insist that neither the respondent’s case, in the first instance, nor the whole case, was sufficient in point of fact to warrant a recovery against them, or any of them. This involves a discussion of the circumstances of the accident, which were as follows:
The respondent was an employee of the Anaconda Copper Mining Company, at the B. & M. Smelter in Great Falls. One of the units composing that smelter was a structure called the “smoke-shed,” a building several hundred feet long east and west, by twenty-seven feet wide north and south. This smoke-shed was open at both ends and was traversed lengthwise by two tracks, running on 16x16 timbers. Beneath these tracks, separated by similar timbers, were thirty-five bins which ran from side to side of the structure, each taking up about twelve feet of its length, and being about eighteen feet deep. Midway of the smoke-shed, or nearly so, was bin 17, which was flanked on the east by bin 18, and on the west by bin 16; west of bin 16 was bin 15, and east of bin 18 was bin 19; bin 19 was covered by a plank floor, the others being open so as to receive ore or rock from the ears; at the east end of bin 15 and next to bin 16, was a doorway to which a flight of stairs led; these stairs and doorway were installed for the purpose of enabling employees of the smelter, who might have occasion, to enter the smoke-shed at that point. The south rail of the south track as it crosses bins 15, 16, 17 and 18, was about fifty inches from the south wall of the building; between the two tracks and along the south wall were plank walks — also designed for the use of employees on occasion; the walk between the tracks was twenty-six inches wide; that along the south wall varies in width, being thirty-two inches wide over bins 15 and 16, and eighteen inches wide over bins 17 and 18. In the south wall, opposite bin 19, was an elevator-way, and from this a door led to tbe floor covering that bin and giving access, when free from ears, to the plank walks above described. At a point .220 feet from the west end of the smoke-shed, a track called the “BlackJack” left the north track and ran eastward just north of the smoke-shed. On November 28, 1912, the respondent was in charge of operations by which rock was forwarded from bin 17 through a conveyer into a crusher, there crushed and thence loaded into cars for transfer elsewhere. In the afternoon of that day, having partially loaded a car, he deemed it necessary to ascertain how much rock remained in the bin. For this purpose he proceeded to and up the stairway leading to the doorway at bin 15; arrived there he found a string of cars standing on the south track and extending east and west of the doorway; he paused a moment, listened and looked to the west to learn if there were any signs of movement in the ears or of an approaching engine; he saw no engine and heard nothing, though his sight and hearing were good; concluding that the easiest and safest way to accomplish his mission was to walk along the south wall to bin 17, he did so. About the middle of bin 17 he stopped, faced west, stooped over so as to see into the bin, and called to the man who was working there. As he did this, a crash of cars came; he was struck on the head and knocked into the bin, sustaining the injuries which will be hereafter described.
Upon the issue of appellant’s negligence, the evidence on the part of respondent tended to show that the accident was caused by the movement of a switch-engine and cars from the west and into the cars standing on the south track, for the purpose of making a coupling; that for years it had been customary for employees of the smelter to be upon and about the tracks in the smoke-shed and to be about that portion thereof adjacent to bin 17 and adjacent to the door at bin 15, in the performance of their duties; that this was known to the railway company and its employees, and it was their rule and custom, before cars were moved or disturbed, to give warning both by ringing the bell and by the mouth of its employees; that it was also tbeir rule and custom, in making a coupling to come to a full stop before completing the coupling, and thus to give warning that standing cars are about to be disturbed; that no warning whatever, either by ringing the engine bell or by the mouth of its employees, or by the usual method of procedure, was given of the operation which resulted in the injuries complained of; that had warning been given in any of these ways, the respondent could have pift himself into a position of entire security and thus avoided the accident. So far as the railway company is concerned, we think this was sufficient. It is elementary that a railway company must, in the operation of its engines and cars, exercise ordinary care to avoid injury to persons whose rightful presence upon or near its tracks is to be anticipated. (33 Cyc. 766.) This rule has special application to the present case, because the tracks were upon premises and within a structure belonging to respondent’s employer.
On the part of appellants there was ample testimony to justify the conclusion that the coupling was managed in the ordinary way and that ample warning of the operation was given by the almost constant ringing of the bell. As to the latter, it is vigorously insisted that the positive testimony of the members of the crew that the bell was ringing ought to be held to outweigh the negative evidence of respondent and his witness Wisler that they heard no bell; but the testimony of the respondent was that he listened for the bell and that from bins 15, 16 or 17 he has often heard, and could have heard, the bell of an engine in the smoke-shed or on the tracks west of the smoke-shed; the most that can be said upon this subject is that a substantial conflict was presented which it was the province of the jury to resolve. (Riley v. Northern Pac. Ry. Co., 36 Mont. 545, 93 Pac. 948; Walters v. Chicago etc. Ry. Co., 47 Mont. 501, 46 L. R. A. (n. s.) 702, 133 Pac. 357.)
But though the company was negligent and though such negligence came to exist through the fault of some person or persons concerned in the operation that caused the accident, it does not follow that a case was made as against the appellants Welch and Lyncb. Besides them, three others took part, viz., the switch foreman, the engineer and the fireman. According to respondent’s contention, the accident would not have occurred if the operation had been performed with due care, the want of such care consisting in the manner in which the coupling was made and in the failure to ring the bell or give any other warning; but there is nothing whatever to show that it was the duty or within the power of Welch or Lynch to control the manner of making the coupling, or to ring the bell or to give any warning. Counsel for the company observing this, insist that the verdict against Welch and Lynch “constitutes a special finding as against the railway company, and hence a reversal of that finding necessitates a reversal as to the railway company. ’ ’ The argument is that, as the jury “doubtless exonerated the other three members of the switching crew,” the verdict against the company must have been based solely upon the negligence imputed to Welch and Lynch.- This might be plausible had the respondent grounded his right to recover from the company solely upon the supposed negligence of Welch and Lynch, or had the verdict or finding as against any of the others been permissible. Such, however, was not the ease; besides responsibility for the supposed fault of Welch and Lynch, the complaint charges the company with primary negligence, and also with responsibility for the failure of the entire switching crew; none of the other members of the crew were parties to the action, and no special findings of any kind were requested. It is therefore wholly gratuitous to say that the jury exonerated anybody ; it might rather be inferred that the jury believed all the switching crew to have been negligent, and therefore returned their verdict against the company and the switchmen who were before the court. Under neither pleadings nor evidence was the negligence of the company dependent upon the particular members of the crew who were at fault; all of them could have been, though none of them need have been, joined as eodefendants. Had all been joined, an erroneous exoneration of any of them would not have availed to discharge the company; an opposite mis take as to others would be equally ineffective. (De Sandro v. Missoula Light & Water Co., 48 Mont. 226, 136 Pac. 711; Melzner v. Raven Capper Co., 47 Mont. 351, 132 Pac. 552; Verlinda v. Stone & Webster Eng. Co., 44 Mont. 223, 119 Pac. 573.)
The claim of contributory negligence is based upon a threefold proposition: that the respondent, with a full knowledge and appreciation of the danger, without exercising any care for his own safety, and of his own deliberate choice, put himself into, the peril from which he suffered. It is said that when he went to the door of bin 15, saw the standing ears and stopped, looked and listened, he demonstrated his appreciation of the danger. This is a singular reasoning, in view of the fact that he neither saw nor heard any indications of an approaching engine or any movement in the cars. Appreciated danger has application under the doctrine of assumption of risk, and to defeat a recovery on this ground, the danger appreciated must be the one from which the injury arose. . The evidence does not support — it negatives — the appreciation of any such danger. When the respondent saw the cars standing on the track, when by looking and listening he satisfied himself that no engine was near, and when he recalled the usual custom not to disturb standing cars without warning, he did assume whatever risk there might be in the cars moving of their own impulse or being moved in the usual way; but it was not apparent to him, nor was he bound to know, that without any warning and with unusual violence the cars he saw would be bumped by an engine and other cars. (Moyse v. Northern Pac. Ry. Co., 41 Mont. 272, 108 Pac. 1062; Westlake v. Keating Gold Min. Co., 48 Mont. 120, 136 Pac. 38.)
Nor, postponing the question of a choice of ways, is it apparent that the respondent was lacking in care for his own safety. He was not upon an open railway, but upon his employer’s premises, at a place entirely safe — so far as the particular danger in question is concerned — so long as switching was not going on. The cars were standing still, with no engine attached; they were harmless then and would continue harmless until they were moved. As be entered the door of bin 15, he stopped, looked and listened; neither seeing nor hearing any sign of an engine or of movement among the cars, he proceeded to a point at bin 17 not to exceed twenty or twenty-five feet from the door; at bin 17 he faced west and hearing no warning, stooped to look into the bin and was struck. The whole thing could not have taken more than a minute or two; and this fact, with his precautions at the door and his right to expect a warning, are sufficient to prevent the conclusion that he was guilty of negligence as matter of law. (Luebke v. Chicago, M. & St. P. Ry. Co., 59 Wis. 127, 48 Am. Rep. 483, 17 N. W. 870; Maguire v. Fitchburg R. R. Co., 146 Mass. 379, 15 N. E. 904; Gatta v. Philadelphia B. & W. Ry. Co., 2 Boyce (Del.), 356, 80 Atl. 617; Bain v. Northern Pac. Ry. Co., 120 Wis. 412, 98 N. W. 241.) Stress is laid upon certain statements which appellants’ witnesses say the respondent made just after the accident, to the effect that it was due to his own carelessness. Of these he disclaims any recollection, pleading his distressed condition at the time. Such statements are, of course, potentially serious; but their value is not absolute. Whether they were made at all; whether, when made, the speaker was fully conscious of their purport; whether their purport is fairly to be taken as an admission of legal negligence or only an expression of the speaker’s view after the event that he might have done or avoided something which ordinary prudence did not require, are all matters of which the jury must be the judge.
It is contended, however, that respondent was clearly guilty of contributory negligence in his deliberate choice of a more dangerous way to ascertain the contents of bin 17, and that the verdict of the jury is contrary to the law as expressed in the court’s instructions 19 and 20. These instructions state the rule recognized in Johnson v. Maiette, 34 Mont. 477, 87 Pac. 447, and in Killeen v. Barnes-King Dev. Co., 46 Mont. 212, 127 Pac. 89, that contributory negligence will be imputed as a matter of law to one who, having a duty to perform and a choice of ways to perform it, knowingly and voluntarily chooses the way which is dangerous, to the way which is safe, or the way which is more dangerous to that which is less so. We shall not pause to consider whether, to ascertain the contents of bin 17, it was necessary for the respondent to go to that bin and see for himself, because his testimony that it was necessary is clear, is supported by substantial reasons, and is conformable to human experience; nor, save as bearing upon his choice of a point of observation, is the route taken by him of any importance, since he was not injured en route. The question of his choice of ways is, therefore, presented by the place and manner of observation selected by him. Two places were possible: the one he did choose, and another from the plank walk between the tracks. If the former was obviously dangerous under the circumstances, and the latter less so, then his choice was fatal unless justified by an emergency. We are not convinced that the point of observation selected by the respondent was obviously or necessarily dangerous in any respect now available to the appellants. It is true that in order to see into the bin at this point, he was required to stoop forward so as to be partially beneath the cars, and it is asserted, though not established, that in doing this he rested his hand upon the rail. Attention, however, has been called to the fact that the ears were standing, and, as such, harmless; that he exercised reasonable care to learn of the approach of an engine or of any sign or movement among the ears; that he was entitled to believe the cars would remain stationary, unless a warning should be given, in which event he could at once relieve himself of hazard from their movement. In the application of the rule upon choice of ways, and particularly in the imputation of knowledge that a given way is dangerous, regard is to be had to the circumstances; and these include the right of the chooser to assume that others whose unusual and negligent conduct alone can jeopardize him, will proceed in the customary manner and with reasonable care. (3 Labatt, Master & Servant, sec. 1271, pp. 3536-3548, and notes.) Assuming, however, that the way chosen by the respondent was dangerous, and that he knew or ought to have known it to be so, we are not justified in the categorical holding that the alternative was any the less so. There is nothing to show that to see into bin 17 from the walk between the tracks, it would not have been necessary for him to act in about the same manner as he did on the south walk. The only advantages here were that the walk is more open and is the one commonly used for signaling by members of the switching crews. But these advantages were nil, in the absence of switching, and the respondent had no reason to expect that any switching operations were imminent. Moreover, ample and sufficient reasons are given, in our judgment, for the choice that was made. He had left his crusher running; an expeditious return to it was necessary; to reach the plank walk between the tracks a long detour around the cars to the west or to the east was necessary; either detour possessed dangers peculiar to itself; the elevator which gave access to the floor over bin 19 was not in commission, and cars were standing upon that floor. In balancing ways for the purpose of making a choice between them, the rule does not require a choice unerring in the light of after-events, but only such a choice as under all the known or obvious circumstances a reasonably prudent person might make. (Killeen v. Barnes-King Dev. Co., supra; Collins v. Chicago & N. W. Ry. Co., 150 Wis. 305, 136 N. W. 628; Great Northern Ry. Co. v. Thompson, 199 Fed. 395, 47 L. R. A. (n. s.) 506, 118 C. C. A. 79.) Whether under all the circumstances such a choice was made by the respondent, was properly submitted to the jury, and their verdict was in no sense contrary to the instructions upon this subject.
3. The respondent had testified that he is a carpenter and was totally incapacitated from following that trade by his in-juries; and the court, over objection, allowed testimony as to the going wage at Great Falls for carpenters, which was $1.75 per day more than the respondent was receiving at the smelter. Fault is found with this, the contention being that, so far as earning capacity is concerned, the respondent was limited to his then occupation as a standard. This is not cor rect as an absolute proposition, though there are eases in which the prior occupation has been held too remote, on account of the nature of such occupation, the time since which it was followed, or the circumstances of its abandonment. A precedent for the ruling assailed may be found in Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 521, 107 Pac. 499, wherein it was said: “While plaintiff was on the stand, he testified: ‘I was working here for $3.50, $3.75, $4 and $4.50. I have followed'contracting.’ He was asked: ‘What did you make contracting?’ Over objection he answered: ‘I was always making six and always over and sometimes' under.’ We think the testimony was competent as bearing upon his earning capacity.”
Complaint is also made of the giving of instruction No. 22, in that it authorized the jury not only to consider the impairment of respondent’s earning capacity, but also his “disability by reason of the injury to pursue his usual vocation, if you find he is so disabled.” It is suggested that this is wrong in the abstract, inapplicable to the case and prejudicial in view of the ruling just referred to. The evidence, however, tended to show that respondent is unable, because of his injuries, to do the work which at the time of the injuries he had' been doing, or to pursue the established course of his life as a sound individual able to turn his hand to many things and thus to depend upon constant employment. That the loss of earning capacity is one element of damage, and disability to pursue one’s usual vocation is another, were settled in Montague v. Hanson, 38 Mont. 376, 386, 99 Pac. 1063.
After the respondent had been cross-examined touching his reasons for going to bin 17 and attempting to look into the same, he was allowed to explain on redirect examination, why he did not regard the inexperienced man who was stationed there, as capable of giving the information of which he was in quest. This is criticised as calling for the conclusion of the witness as to the possibilities of the English language; but we do not see reversible error in it, nor in the only other ruling complained of, viz., the refusal of the offer to explain the absence of Lynch.
4. It is contended that the award is so excessive as to evince passion and prejudice. At the time of Ms injuries respondent was in charge of the crusher, with two assistants, and was earning $3.25 per day. He was sober, alert and industrious, but the record leaves us uncertain as to his age. His injuries consisted of a couple of scalp wounds, not very serious; the loss of the first two fingers of his right hand, and the crushing of the third, so that he cannot close his hand and has no grip in it; a fracture of the metacarpal bone of the thumb of the left hand, which required an operation; there is also a growth coming inside of his left hand since the accident; necessarily he suffered pain and he has sustained a permanent mutilation. For at least four months he was unable to do any work, and he cannot now and never will be able to do the work he was doing, He is doing other work at the same wage but has lost his capacity as an all-around man, so that he must take whatever he can do, and when nothing is offered that he can do, he must lay off. He is a carpenter by trade but his injuries have deprived him of that reserve against the day of need. How, in a summation of all these things, it is possible to say that an award of $5,000 is so grossly excessive as to shock the conscience and understanding, we are at a loss to perceive. Many decisions from other states are cited to show that similar or lesser injuries do not warrant such an award; some of these are well considered; others seem to ignore pain, mutilation and disability to pursue one’s established course of life, as elements of damage. We are satisfied with our own standard and, under it, see no compelling reason for interference with the verdict. (Lewis v. Northern Pac. Ry. Co., 36 Mont. 207, 92 Pac. 469; White v. Chicago, M. & St. P. Ry. Co., 49 Mont. 419, 143 Pac. 561; Knuckey v. Butte Electric Ry. Co., 45 Mont. 106, 122 Pac. 280; Forquer v. North, 42 Mont. 272, 112 Pac. 439.)
The judgment and order appealed from are reversed so far as the appellants Welch and Lynch are concerned, respondent to pay their costs on appeal; as to the appellant railway com pany the judgment and order appealed from are affirmed at its cost.
Mb. Chief Justioe Beantlt and Me. Justice Holloway concur.
|
[
17,
10,
-47,
-31,
6,
-19,
-14,
-22,
14,
5,
29,
-1,
-12,
-28,
7,
-44,
-78,
-42,
41,
-41,
12,
26,
-9,
-27,
-51,
-16,
15,
42,
5,
-28,
50,
-3,
-32,
61,
-45,
3,
28,
-12,
-48,
22,
66,
37,
12,
-37,
16,
20,
86,
-29,
-63,
10,
59,
33,
-27,
-13,
-42,
-47,
-42,
73,
-13,
-31,
0,
0,
2,
-9,
-31,
-50,
61,
-52,
-39,
-6,
-106,
49,
57,
-25,
-28,
-67,
8,
0,
-45,
-34,
18,
9,
-29,
-41,
-44,
28,
91,
14,
-24,
4,
-10,
-40,
-58,
31,
20,
27,
20,
-24,
3,
45,
62,
40,
-9,
-10,
-30,
-13,
-14,
21,
39,
7,
10,
22,
-58,
-25,
-47,
-26,
-8,
1,
-15,
40,
20,
-4,
22,
-4,
-10,
39,
17,
-1,
19,
-5,
4,
42,
32,
26,
-31,
-14,
-47,
19,
14,
38,
-13,
1,
-9,
-56,
22,
-19,
-54,
53,
10,
7,
41,
10,
3,
-24,
-35,
-44,
-1,
-2,
79,
-4,
44,
-54,
10,
-28,
20,
13,
-31,
8,
44,
1,
-35,
-20,
88,
-9,
0,
-14,
25,
-61,
-34,
-23,
50,
84,
14,
64,
18,
1,
-16,
27,
3,
-60,
54,
-20,
-25,
-42,
17,
42,
-16,
20,
66,
21,
32,
5,
-43,
-29,
1,
29,
-35,
-6,
66,
-48,
-5,
61,
-35,
-4,
-26,
-4,
23,
-60,
33,
-17,
-58,
-46,
-38,
-31,
-12,
1,
-30,
-31,
41,
11,
-12,
-92,
15,
26,
-8,
-54,
11,
-82,
93,
49,
3,
-40,
40,
-58,
0,
30,
35,
36,
-16,
1,
45,
4,
41,
-47,
1,
31,
-8,
-45,
-66,
-51,
37,
59,
-31,
25,
-38,
18,
41,
23,
-13,
15,
-47,
-39,
-10,
22,
19,
-4,
4,
42,
13,
20,
-6,
27,
41,
22,
-92,
11,
-68,
12,
-16,
-2,
-10,
-17,
57,
-21,
0,
73,
-7,
7,
31,
-40,
22,
-45,
56,
36,
-3,
5,
-6,
38,
-11,
6,
9,
32,
34,
-73,
44,
40,
6,
23,
0,
25,
37,
-12,
-6,
-31,
1,
-6,
-25,
-51,
-8,
44,
-50,
49,
24,
15,
-25,
-39,
14,
13,
19,
31,
-11,
2,
0,
-54,
38,
-16,
38,
-20,
-6,
16,
10,
47,
-55,
-97,
33,
-40,
-22,
-46,
46,
21,
0,
-43,
35,
-16,
-47,
-26,
-18,
-69,
-26,
49,
-16,
10,
13,
-28,
0,
-17,
0,
15,
-4,
34,
-69,
29,
9,
-36,
44,
49,
64,
6,
-1,
64,
23,
9,
10,
28,
-21,
71,
-98,
7,
7,
9,
-12,
12,
-57,
42,
-27,
-27,
5,
29,
-40,
-1,
-17,
-1,
41,
-3,
48,
-20,
-17,
0,
-16,
6,
32,
-63,
71,
28,
-28,
-5,
8,
-38,
-25,
-51,
-68,
-17,
49,
-45,
-28,
-19,
7,
-45,
0,
-37,
-26,
24,
7,
35,
0,
17,
-3,
30,
34,
20,
-62,
-5,
9,
-28,
23,
-7,
43,
49,
53,
53,
-31,
-59,
-21,
-19,
17,
-20,
-1,
-1,
-2,
20,
-4,
-26,
49,
-23,
-17,
39,
-52,
45,
-15,
18,
-51,
17,
-10,
-71,
-90,
-46,
22,
-3,
37,
-32,
7,
58,
12,
22,
-26,
-13,
-21,
29,
31,
23,
8,
-1,
-34,
-27,
18,
39,
57,
-71,
57,
-34,
8,
88,
9,
18,
23,
-19,
-69,
-39,
-6,
-66,
-14,
-57,
-24,
-6,
-13,
-23,
-31,
1,
6,
-56,
21,
-24,
32,
46,
14,
30,
0,
-69,
-4,
-26,
-70,
18,
12,
-5,
61,
13,
9,
36,
80,
-9,
82,
20,
50,
91,
6,
-23,
-50,
-36,
12,
-38,
-10,
-6,
-18,
-29,
-20,
5,
41,
-19,
51,
-86,
9,
22,
-18,
53,
20,
-43,
41,
32,
-61,
-23,
-33,
31,
-31,
-24,
6,
-10,
-8,
-25,
-1,
48,
-12,
-6,
17,
-28,
-9,
-24,
54,
12,
12,
18,
-10,
-46,
-26,
-11,
-12,
16,
-30,
-68,
30,
8,
31,
-15,
-49,
-16,
-30,
-3,
-48,
1,
9,
45,
11,
8,
36,
-59,
-28,
22,
0,
-47,
-62,
-69,
13,
7,
-18,
23,
-46,
53,
36,
2,
-47,
11,
2,
2,
24,
17,
30,
-45,
-33,
18,
4,
-46,
-17,
35,
40,
-116,
58,
27,
-8,
38,
-34,
-28,
-63,
-9,
40,
1,
2,
-11,
3,
-34,
8,
-2,
35,
-21,
34,
95,
17,
-31,
-5,
45,
-39,
3,
-7,
-72,
22,
-13,
-9,
-39,
-12,
-55,
13,
-63,
-14,
9,
-8,
59,
12,
-25,
46,
7,
-23,
-35,
-29,
-29,
39,
-1,
-9,
24,
-62,
-6,
127,
16,
10,
-4,
-42,
-58,
85,
-41,
-39,
-38,
0,
24,
19,
-15,
36,
78,
4,
8,
-1,
28,
20,
-18,
44,
-41,
-28,
8,
7,
23,
34,
-12,
35,
-36,
64,
4,
34,
13,
45,
-24,
-14,
-19,
-17,
4,
20,
-3,
43,
-11,
4,
9,
-43,
-25,
-11,
-21,
52,
-27,
-2,
-5,
-31,
-36,
24,
-14,
24,
-4,
-15,
0,
77,
-20,
-21,
46,
62,
-88,
-36,
29,
17,
-18,
30,
-4,
34,
-1,
18,
5,
-36,
10,
8,
57,
-56,
52,
-3,
-87,
-29,
-45,
51,
39,
-19,
12,
41,
11,
33,
7,
29,
-19,
28,
-7,
6,
16,
-56,
40,
-23,
-23,
-8,
-46,
37,
-37,
7,
59,
42,
-16,
-6,
27,
11,
-17,
44,
49,
66,
-16,
-42,
36,
13,
17,
42,
55,
-36,
21,
23,
22,
-107,
57,
-15,
0,
-50,
-30,
-18,
-13,
-34,
24,
-27,
-5,
-36,
-21,
33,
31,
41,
33,
1,
56,
-14,
27,
-4,
-26,
10,
-46,
-56,
16,
27,
32,
-12,
-17,
19,
17,
-49,
15,
4,
67,
14,
-63,
-24,
9,
-20,
9,
18,
33,
-94,
1,
58,
-27,
12,
7,
-16,
-37,
-56,
26,
31,
-4,
24,
-11,
-1,
15,
-4,
41,
8,
-53,
-46,
51,
43,
-29,
2,
9,
70,
37,
-14,
-16,
15,
-18,
-30,
-21,
36,
-8,
-33,
-42,
9,
-14,
7,
15,
-41,
-39,
-1,
-20,
47,
-17,
-19,
-19,
4,
-1,
-2,
1,
-49,
-2,
-21,
-48,
-43,
-1,
-59,
28,
3,
-7,
26,
4,
64,
26,
39,
-1,
37,
-18,
7,
68,
50,
34,
46,
-68,
-48,
-61,
28,
-1,
43,
20,
12,
-74,
-24,
1,
-9,
-15,
-24,
20,
-22,
5,
54,
8,
30,
-67,
-29,
-51,
-30,
32,
-12,
37,
11,
1,
-48,
-8,
-2,
17,
41,
-22,
64,
15,
-1,
-22,
2,
49,
12,
58,
8,
19,
16,
-33,
37,
36,
28,
6,
23,
-61,
-40,
-80,
32,
62,
11,
1
] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The admitted facts in this proceeding are: On March 24, 1915, there was, and for approximately two years had been, pending in department No. 2 of the district court of Lewis and Clark county, Hon. J. Miller Smith, judge presiding, the guardianship of the person and estate of Mary Murphy, incompetent. On that day, at 4:50 P. M., and in that proceeding, Anna. E. Nett filed her affidavit to disqualify Judge Smith from further action save to transfer the proceeding to department No. 1, Hon. J. M. Clements, Judge, which was immediately done. Thereupon Mrs. Nett filed her petition praying that Mrs. Murphy be declared competent to manage her own business and affairs, and Judge Clements made an order setting said petition for hearing before himself on the following day, at 2 o ’clock P. M., directing that a copy of the petition and order “be served upon those entitled to notice by law at sometime prior to March 25, 1915.” Service was'had upon the guardian, Joseph J. Carroll, at 11 o’clock P. M. of March 24, 1915, after he had retired for the night; but on the next day, before 2 o’clock P. M., he filed an affidavit of disqualification against Judge Clements, which the judge has ignored and intends to ignore. We are asked to annul the order referred to, as an abuse of discretion by Judge Clements, the specific contention being that the guardian was thereby deprived of his right of disqualification.
That a right may be conferred by statute; that when so con- ferred, it is entitled to judicial recognition; that such recognition cannot be withheld nor the right abridged because it is subject to abuse; and that subdivision 4 of section 6315, Revised Codes, as amended, is such a statute and confers such a right, are propositions too well settled for discussion. (State ex rel. Working et al. v. District Court, 50 Mont. 435, 147 Pac. 614; State ex rel. First Trust & Sav. Bank v. District Court, 50 Mont. 259, 146 Pac. 539; Washoe Copper Co. v. Hickey, 46 Mont. 363, 128 Pac. 584; State ex rel. Carleton v. District Court, 33 Mont. 138, 8 Ann. Cas. 752, 82 Pac. 789.) The questions, then, are whether under the circumstances such right was conferred upon the guardian, and whether the effect of the order was to take it from him.
It is urged by the respondents that, as the statute by its terms restricts' the right of disqualification to parties, the guardian cannot possess it, because he is not a party to the proceeding; and this suggests the inquiry how the matter comes to be before Judge Clements. The petition to this court recites, and the answer thereto admits, that before filing her petition for the restoration of Mary Murphy to competency, Mrs. Nett presented her affidavit to disqualify Judge Smith in the guardianship proceeding — notwithstanding she was not a party to that proceeding nor, so far as appears, the agent of one. The record also indicates that the petition for restoration was filed in the guardianship proceeding, and, of course, if it was properly so filed and Judge Smith never really lost jurisdiction in that proceeding, the restoration matter is not before Judge Clements at all. The theory of respondents, however, and the one we are inclined to adopt, is that the petition for restoration initiated a separate and distinct proceeding. Anyhow, the guardian has an interest. Whether we view the proceeding for restoration as independent of the guardianship or within it, the guardian is a party — in the latter case manifestly so; in the former by express provision of law. (Rev. Codes, sec. 7767.)
But it is said that unless the affidavit is filed before the day fixed for the hearing, the right to disqualify is lost, and, as that is the situation here, the guardian has no ground of complaint. The premises must be granted; but the conclusion would be of more value to the respondents if the subject of our review were the failure of Judge Clements to notice the affidavit of disqualification filed on the day of the hearing. As applied to the real question before us, the argument amounts to no more than a practical admission of .the guardian’s contention. The petition for restoration was presented within ten minutes of the closing of the business day of March 24, and the time for the hearing was fixed for the following day. Assuming that this was within the power of the court, the order reciting that it was made “upon good cause shown” — though no such cause actually appears — service could still have been directed to be made forthwith, to the end that whatever steps it might be necessary for the guardian to take before the day fixed for the hearing, could be taken or at least attempted. Instead of this, service was directed to be made “at some time prior to the 25th day of March, 1915”; it was so made, to-wit, one hour before — at a time when the guardian had retired and most people are in bed ■ — and the guardian’s loss of his right to disqualify was the result. In the exercise of any authority to shorten or fix the time for a hearing, the situation of all parties must be considered, and we cannot concede that it lies within the sound discretion of any court to so act as to necessarily deprive any litigant of a substantial right. We are not obliged to conclude, as the guardian contends, that such was the intention; it is sufficient that a course, was pursued from which no deviation can be sug-gestéd if such had been the purpose.
It is argued that the guardian is in no position to challenge the order complained of, because he did not appear before the court below and ask a continuance, if that were necessary to his cause. This also might be tenable under some circumstances; but to save the particular right here involved, such a course would not only have been useless but fatal. (State ex rel. Jacobs v. District Court, 48 Mont. 410, 138 Pac. 1091.)
In our opinion, the order fixing the day of the hearing of the petition to restore Mary Murphy was, under the circumstances, an abuse of discretion by the judge who made it, and it is therefore annulled.
Order annulled.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
[
20,
-23,
1,
16,
-17,
-12,
25,
-11,
-23,
-6,
6,
-42,
57,
-66,
-25,
-52,
8,
-27,
18,
-41,
3,
41,
-55,
-19,
9,
-20,
-40,
10,
-63,
-13,
38,
-53,
-6,
11,
16,
6,
36,
38,
23,
-1,
47,
28,
-43,
-2,
-9,
-1,
-42,
-2,
-16,
-51,
-14,
-1,
-21,
49,
23,
-16,
-31,
0,
-10,
-9,
15,
-15,
19,
-18,
28,
31,
36,
-17,
-15,
-3,
0,
-2,
-34,
-41,
-4,
36,
-11,
9,
0,
9,
-28,
-19,
-34,
-54,
-10,
-3,
-43,
24,
-10,
-32,
-3,
12,
-10,
-19,
-3,
35,
4,
-21,
11,
-35,
-8,
-39,
23,
-15,
12,
-51,
-58,
34,
76,
9,
2,
21,
-12,
-3,
-29,
-12,
25,
24,
-25,
9,
35,
-10,
-44,
35,
29,
-20,
-5,
47,
61,
9,
-13,
-7,
25,
-47,
0,
10,
-3,
-98,
-71,
-29,
1,
-50,
11,
-17,
-4,
12,
-30,
15,
-2,
-27,
16,
-3,
46,
55,
4,
-23,
4,
-43,
26,
-30,
14,
38,
41,
10,
-29,
15,
18,
-46,
-31,
-60,
16,
17,
-29,
-27,
13,
-8,
7,
-16,
-23,
-1,
-18,
26,
5,
-13,
-23,
24,
17,
-37,
20,
34,
-29,
11,
78,
-25,
-18,
-8,
58,
-14,
47,
-32,
41,
61,
22,
24,
6,
22,
-13,
-24,
-12,
-29,
6,
9,
23,
-24,
-22,
-17,
-43,
8,
-42,
16,
42,
58,
2,
15,
-29,
-69,
-20,
-41,
32,
-32,
-2,
-15,
31,
0,
22,
38,
33,
-11,
0,
26,
-27,
-43,
29,
2,
6,
11,
3,
-6,
-31,
-11,
42,
-28,
-6,
64,
-22,
34,
55,
16,
-37,
-41,
16,
0,
7,
35,
4,
-60,
3,
37,
51,
-23,
22,
2,
58,
17,
4,
-35,
36,
6,
-5,
-55,
-4,
-36,
0,
27,
14,
-4,
32,
-16,
25,
0,
15,
-46,
-40,
36,
14,
-14,
-50,
35,
-15,
-21,
-12,
-18,
-13,
51,
12,
19,
-47,
-6,
18,
4,
-2,
34,
-40,
-6,
16,
73,
-36,
-15,
-44,
16,
45,
35,
-33,
-29,
-7,
12,
17,
0,
25,
13,
36,
-1,
-40,
-24,
15,
-20,
51,
21,
-14,
-75,
49,
-80,
7,
21,
-56,
1,
-5,
31,
20,
16,
-13,
43,
-15,
23,
-8,
-21,
50,
-65,
37,
-36,
-2,
8,
3,
-30,
2,
48,
-15,
-21,
22,
-42,
-5,
-12,
36,
-37,
48,
-20,
29,
2,
-5,
27,
-30,
-12,
-14,
-7,
-12,
-5,
41,
0,
-79,
-62,
36,
11,
-65,
35,
-10,
33,
8,
-27,
-36,
-33,
-63,
29,
-28,
-41,
-37,
-27,
-64,
4,
27,
-5,
23,
27,
41,
-18,
36,
-40,
24,
17,
35,
0,
-17,
-49,
47,
6,
-14,
-7,
-4,
16,
20,
1,
16,
38,
15,
1,
3,
-25,
52,
11,
6,
40,
59,
20,
-22,
40,
-18,
-11,
29,
25,
42,
-17,
-14,
22,
28,
7,
-6,
-1,
80,
-17,
-10,
-6,
15,
36,
30,
60,
-31,
1,
7,
-13,
21,
0,
-13,
15,
-21,
3,
41,
1,
-41,
18,
-24,
-4,
3,
-12,
70,
2,
27,
49,
-36,
-45,
17,
-1,
8,
-32,
11,
-56,
0,
0,
-37,
-57,
-5,
-11,
18,
17,
42,
-60,
-21,
-45,
10,
11,
-29,
52,
-29,
-30,
45,
43,
-14,
30,
5,
4,
-16,
15,
47,
-44,
9,
-36,
2,
12,
40,
-12,
50,
-50,
-37,
66,
-74,
2,
-1,
13,
43,
-21,
13,
-31,
-33,
-22,
14,
20,
-13,
-11,
-29,
-48,
3,
14,
52,
-5,
-44,
15,
0,
-21,
13,
-3,
22,
-1,
9,
24,
-74,
-33,
-26,
16,
-60,
-27,
-46,
-23,
30,
-22,
-18,
-65,
13,
-33,
29,
12,
41,
-19,
33,
-22,
-51,
-12,
-31,
-12,
0,
11,
11,
-18,
4,
-16,
-18,
36,
-4,
-11,
32,
9,
-11,
24,
-37,
-15,
1,
20,
6,
-25,
50,
7,
15,
-44,
-10,
6,
-48,
11,
0,
17,
-6,
-15,
17,
17,
3,
-11,
17,
-62,
31,
-8,
-52,
11,
-3,
4,
12,
23,
-23,
-12,
-21,
37,
-52,
-25,
-23,
-27,
28,
50,
32,
39,
24,
17,
59,
5,
44,
14,
25,
39,
12,
-82,
16,
-32,
40,
2,
52,
34,
14,
6,
-10,
-41,
20,
23,
-7,
79,
0,
21,
21,
-8,
76,
24,
-7,
-23,
38,
-10,
7,
-44,
1,
-10,
0,
12,
-49,
-50,
-6,
17,
-34,
20,
41,
17,
2,
57,
-34,
-6,
0,
-17,
32,
0,
-17,
13,
34,
24,
-53,
-11,
-16,
-58,
-51,
8,
-14,
-12,
-29,
25,
35,
-19,
-6,
-1,
-50,
-40,
-28,
11,
-3,
3,
47,
11,
-3,
-34,
4,
-31,
68,
30,
1,
20,
-14,
-1,
3,
-30,
20,
32,
23,
6,
-8,
42,
14,
48,
5,
-19,
-16,
-2,
28,
-42,
-10,
-36,
1,
13,
28,
16,
-3,
-32,
12,
14,
10,
-12,
-31,
36,
-61,
-12,
-36,
-19,
24,
-25,
48,
11,
2,
20,
31,
-9,
10,
1,
-10,
1,
-33,
15,
44,
-46,
9,
0,
5,
26,
-6,
0,
0,
-14,
-29,
22,
-68,
-45,
-74,
24,
0,
0,
2,
-26,
23,
48,
20,
13,
-38,
-27,
-21,
9,
-13,
-43,
-10,
-41,
29,
20,
-9,
-58,
0,
-48,
72,
0,
-17,
-33,
-22,
12,
-11,
16,
16,
-14,
-22,
-6,
61,
-5,
-13,
23,
24,
1,
35,
-13,
50,
-36,
26,
8,
0,
22,
35,
44,
12,
9,
-34,
29,
-52,
-53,
23,
-63,
-10,
4,
-27,
-5,
-37,
-35,
46,
13,
8,
5,
32,
26,
-38,
10,
19,
9,
-33,
5,
36,
-39,
19,
14,
-1,
38,
0,
40,
24,
25,
52,
13,
26,
-12,
64,
1,
34,
49,
-11,
23,
1,
-31,
-53,
4,
-35,
-25,
13,
12,
-5,
-3,
36,
40,
100,
-26,
43,
20,
-69,
-16,
12,
2,
11,
-7,
21,
16,
27,
8,
-55,
-1,
14,
-9,
-9,
9,
-31,
37,
-2,
-7,
4,
-32,
13,
10,
-3,
29,
-5,
-27,
-37,
-57,
31,
17,
6,
35,
16,
-50,
-23,
53,
-20,
10,
-15,
-3,
-19,
31,
-32,
10,
14,
2,
-30,
37,
-1,
6,
5,
-47,
17,
-16,
19,
22,
1,
-14,
-18,
-8,
11,
27,
11,
29,
-10,
4,
15,
4,
-10,
23,
5,
2,
-25,
-22,
27,
-43,
24,
20,
-28,
4,
50,
18,
-19,
19,
8,
9,
36,
14,
-17,
-21,
2,
-22,
-59,
-22,
-17,
-1,
15,
-36,
-23,
-39,
32,
10,
16,
-39,
3,
-1,
-25,
-4,
5,
-40
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.