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941173c8-f352-45af-be6c-adff2ee5751f

HOLLY v PREUSS

N/A

13450

Montana

Montana Supreme Court

No. 13450 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CLAYTON HOLLY, Petitioner and Appellant, VERNON PREUSS, Sheriff of Carter County, Montana, Defendant and Respondent. Appeal from: District Court of the Sixteenth Judicial District, Honorable Alfred B. Coate, Judge presidina. Counsel of Record: For Appellant: Harris, Jackson and Utick, Helena, Montana David L. Jackson argued, Helena, Montana For Respondent: Lucas, Jardine & Monaghan, Miles City, Montana Thomas M. Monaghan argued, Miles City, Montana L. H. James Anderson appeared, Ekalaka, Montana Filed: - 7 - Submitted: March 14, 1977 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the granting of a motion by the district court, Carter County, to quash a petition for a writ of mandamus. The petition sought a writ ordering Vernon Preuss, sheriff of Carter County, to reinstate Clayton Holly to his former position as undersheriff Carter County. In April 1975, Sheriff Pruess asked Undersheriff Holly to resign. The undersheriff refused and asked for a written state- ment of the reasons for termination. The sheriff then fired the undersheriff. The undersheriff made another request for a written statement of cause for termination. This request was again refused. After the parties consulted with the county attorney and the county commissioners, the undersheriff agreed to abide by an informal written attorney general's opinion on this question: "Whether an undersheriff, appointed to hold office during the pleasure of the sheriff, may be discharged from office without such cause as is enumerated in the Deputy Sheriff Tenure Act, section 16-3705 ( 5 ) , Revised Codes of Montana, 1947." The attorney general's opinion was: "An undersheriff may be discharged from office without such cause as is enumerated in section 16-3705(5), R.C.M. 1 9 4 7 . ' ' After sekking legal advice, the undersheriff decided the attorney general's opinion was in error and brought this action. The only issue before the Court is the one present from the outset: Is an undersheriff a deputy sheriff for the purposes of section 16-3705, R.C.M. 1947, and thus tenured and terminable only upon written notice and for cause. For many purposes the two terms, deputy sheriff and under- sheriff, are interchangeable. In his argument, the undersheriff cites Shirran v . Dallas, 21 Cal.App. 405, 132 P. 454 and Delfelder , . , v. Teton Land & Investment Co., 46 Wyo. 142, 24 P.2d 702, which hold deputy sheriff and undersheriff are equivalent terms. These cases involve collateral attacks on a return of execution and a fore- closure sale. It is very likely the result reached in Shirran and Delfelder would be the same in Montana. As set out by statute, section 16-2703, R . C . M . 1947, the holder of the office of undersheriff "* * * has the same powers and duties as a deputy sheriff." There are differences between the two positions however. The undersheriff is paid more than a deputy sheriff, section 25-604, R . C . M . 1947; he is required to fill any vacancy in the office of sheriff until a successor is elected and he is covered by the sheriff's bond, section 16-2704, R . C . M . 1947. The kndersheriff urges that section 16-3701, R . C . M . 1947, is pertinent here : "* * * The whole number of deputies allowed the sheriff is one undersheriff, and in addition not to exceed the following number of deputies: * * * . I t He alleges it indicates the undersheriff is a deputy sheriff. The statute deals with the number of deputy employees allowed the county clerk, the clerk of court and the sheriff in various county classes and it does indicate the undersheriff is to be included as a deputy for the purpose of the statute, limiting the number of deputy employees. However, the statute makes a distinction between the undersheriff and the deputies by naming both, indicating there is a difference. In the final analysis the issue here is whether by enacting section 16-3705 which gives tenure to deputy sheriffs, the legislature repealed by implicatiozi section 16-2703 which states: "The sheriff, as soon as may be after he enters upon the duties of his office, must, except in counties of the seventh and eighth classes, appoint some person undersheriff to hold during the ~leasire of the sheriff. Such undersheriff has the same powers and duties as a deputy sheriff." (Emphasis suppiied. ) In State ex rel. Charette v. District Court, 107 Mont. 489, 495, 86 P.2d 750, the Court said: "* * * Unless there is clearly and manifestly a con- flict between the two Acts in question, the court will not declare that there is an implied repeal. Repeal by implication is not favored by this or any court, and every effort will be made by the courts to reconcile the Acts in question to avoid such repeal. * * *" In State Aeronautics Corn. v. Bd. Exam., 121 Mont. 402, 417, 194 P.2d 633, the Court stated: " I * * * it is a canon of statutory construction that a later statute general in its terms and not expressly repealing a prior special or specific statute, will be considered as not intended to affect the special or specific provisions of the earlier statute, unless the intention to effect the repeal is clearly manifested or unavoidably implied by the irreconcilability of the continued operation of both, or unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the legis- lature contemplated and intended a repeal."' The Court reaffirmed these rules in Teamsters v. Montana Liquor Control Board, 155 Mont. 300, 303,304, 471 P.2d 541, where it said: "'The general rule is that for a subsequent statute to repeal a former statute by implication, the previous statute must be wholly inconsistent and incompatible with it. I "'Where one statute deals with a subject in general and and comprehensive terms and another deals with a part of the same subject in a more minute and definite way, to the extent of any necessary repugnancy between them the special will prevail over the general statute. * * *' "'The presumption is that the Legislature passes a law with deliberation and with a full knowledge of all existing ones on the same subject, and does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable. "' While it is true the legislature has expanded the coverage of the deputy tenure provisions to include every deputy in every county, there is no 'necessary repugnancy1 between section 16-3705 and section 16-2703, unless the terms "deputy sheriff" and "under- sherif f" are absolutely equivalent. The terms "deputy sheriff" and "undersheriff" are not absolutely equivalent, the legislature has treated the two as different, setting a different rate of pay and granting special responsibilities to the person holding the office of undersheriff. The most that may be said is that the undersheriff is a special class of deputy. It is clear from the rules set out above that repeal by implication of specific provisions of the earlier statute will not be found, unless the intent to repeal is clearly manifested or unavoidably implied by irreconcilability of the continued operation of both statutes. No such intent or irreconcilability appears here. While there is no question the legislature could expand the coverage of the tenure act by repealing section 16-2703 and inserting the word "undersheriff" in section 16-3705, this Court cannot. The clear unambiguous statement in section 16-2703 that the sheriff must appoint someone "undersheriff to hold during the pleasure of the sheriff" is not repealed by the grant of tenure to deputy sheriffs in section 16-3705. Each statute applies to the class of county law enforcement officers it names. The undersheriff argues the two statutes may be reconciled by holding the undersheriff may be terminated at will, but remain on as a deputy sheriff at the lower pay and may be terminated as a deputy only for cause. To so hold would require section 16-2703 to be amended to read "appoint some deputy sheriff undersheriff" instead of reading as it does "appoint some person undersheriff". (Emphasis supplied.) As the sheriff points out, the distinction between an under- sheriff and a deputy sheriff in the area of tenure is not without basis in policy. Representative government requires an elected official be able to implement new or different policies and a fully tenured carryover staff might resist such changes. Having the undersheriff, who is the sheriff's second in command, eon-tenured serves to make the sheriff's administration of his office more efficient and effective. Further the undersheriff would be more loyal to the sheriff's policies than would necessarily be true if the undersheriff was a tenured carryover from a prior defeated ad- ministration. The decision of the district court is affirmed. ' , \,\ Chief Justice

May 27, 1977

82f0a0ad-3956-4c54-8e9d-342f7aaf2fcf

STATE v PASCGO

N/A

13379

Montana

Montana Supreme Court

No. 13379 I N T H E S U P F t E M E COURT O F THE STATE O F MONTANA 1977 STATE O F MONTANA, P l a i n t i f f and Respondent, VS. BEN PASCGO, Defendant and Appellant. Appeal from: D i s t r i c t Court of Second J u d i c i a l D i s t r i c t Honorable James Freebourn, judge presiding Counsel of Record: For Appellant: Stimatz and Engel, Butte, Montana Joseph C. Engel, 111, argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Gary Winston, County Attorney, Butte, Montana Nadine S c o t t argued, Deputy County Attorney, Butte, Montana Submitted: June 3, 1 9 7 7 Decided : JUL 2 0 1 9 7 7 FILED : JJJL i! 0 1 9 7 7 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. Defendant appeals from a jury conviction of b u r g l a r y e n t e r e d i n t h e d i s t r i c t court, S i l v e r Bow County. He received a s i x y e a r sentence i n the Montana S t a t e Prison with two y e a r s suspended. Defendant i s f r e e on bond pending t h i s appeal. I n e a r l y morning of March 10, 1975, p o l i c e o f f i c e r s responded t o a b u r g l a r alarm t r i g g e r e d a t O s s e l l o l s Furniture S t o r e i n Butte, Montana. Arriving a t O s s e l l o l s within two o r t h r e e minutes, t h e o f f i c e r s noticed one s e t of f o o t p r i n t s i n t h e snow leading t o a garage door on t h e north-east end of t h e s t o r e . It appeared t o t h e o f f i c e r s a second person had walked d i r e c t l y i n t h e f o o t p r i n t s of the first, and t h e r e were no f o o t p r i n t s leaving t h e building. Two panels were knocked out of t h e garage door. One of the broken panels was about t h r e e f e e t o f f t h e ground, but t h e o f f i c e r was unable t o crawl through it, due t o a t h i n metal locking b a r t h a t c u t h o r i z o n t a l l y a c r o s s t h e opening. A t e l e v i s i o n s e t blocked t h e opening i n t h e lower panel a t t h e bottom of t h e door, b u t t h e o f f i c e r s were a b l e t o e n t e r t h e b u i l d i n g through t h i s opening by pushing t h e t e l e v i s i o n s e t a s i d e . The o f f i c e r s turned on t h e l i g h t s i n t h e s t o r e and saw defendant crawling behind a r u g rack. They found another man, Harold I a P i e r , l y i n g i n a p i l e of rugs on t h e f l o o r . Both men were taken i n t o custody and charged with burglary under s e c t i o n 94-6- 204(1), R.C.M. 1947. LaPier subsequently plead g u i l t y i n a s e p a r a t e proceeding. Defendant admitted a t t r i a l he e n t e r e d t h e b u i l d i n g unlawfully b u t denied he intended t o commit any felony t h e r e i n . Defendant Is version of t h e i n c i d e n t is: Defendant, h i s g i r l f r i e n d , and LaPier had been d r i n k i n g a t various Butte e s t a b l i s h - ments. While a t t h e Dry Gulch Bar, near O s s e l l o l s , defendant noticed LaPier was missing and was informed he had l e f t t h e b a r with a s t r a n g e r ; presumably t h e y had gone t o defendant's c a r where an e x t r a b o t t l e was stashed. When LaPier f a i l e d t o r e t u r n t o t h e b a r a f t e r about f i f t e e n minutes, defendant became con- cerned and went out t o t h e c a r looking f o r him. Defendant knew LaPier was on probation f o r a previous burglary and tended t o g e t i n t o t r o u b l e when he was drinking. &Pier was n o t i n t h e c a r , but t r a c k s could be seen leading t o O s s e l l o l s . Defendant followed t h e t r a c k s , found t h e broken panels i n t h e garage door, and e n t e r e d O s s e l l o ' s with t h e purpose of g e t t i n g LaPier out of t h e b u i l d i n g . He found LaPier a s l e e p i n a p i l e of rugs, b u t a t t h a t time t h e p o l i c e a r r i v e d . Defendant panicked and t r i e d t o hide, but was apprehended by t h e o f f i c e r s . LaPier t e s t i f i e d he e n t e r e d t h e b u i l d i n g with an unknown man t o b u r g l a r i z e t h e s t o r e ; t h a t he pushed t h e t e l e v i s i o n set a g a i n s t t h e lower panel of t h e garage door; and he l o s t t r a c k of h i s accomplice and f e l l a s l e e p . LaPier maintained defendant had nothing t o do with t h e planning o r commission of t h e burglary. Defendant contends t h e following s p e c i f i c a t i o n s of e r r o r r e q u i r e a r e v e r s a l of h i s conviction: I. The t r i a l c o u r t ' s d e n i a l of d e f e n d a n t ' s motion f o r a continuance was p r e j u d i c i a l e r r o r ; 11. The evidence was i n s u f f i c i e n t t o support a convic- t i o n of t h e crime of burglary. S p e c i f i c a t i o n of e r r o r I. Defense counsel made an o r a l motion, j u s t before t h e jury was s e l e c t e d , t o continue t h e t r i a l u n t i l a l a t e r d a t e . Defendant intended t o c a l l Dale Miller, t h e person responsible f o r t h e i n s t a l l a t i o n and maintenance of t h e alarm system a t Q s s e l l o ' s , but M i l l e r l e f t t h e s t a t e j u s t before t h e t r i a l was t o commence. M i l l e r ' s testimony was desired t o show t h e alarm system was a c t i v a t e d only by motion i n t h e s t o r e , thus leaving open t h e possibility LaPier and h i s a l l e g e d accom- p l i c e could have remained i n t h e s t o r e f o r a period of time before defendant a r r i v e d and before t h e alarm was t r i p p e d . Defendant contends M i l l e r l e f t t h e s t a t e t o avoid t e s t i f y i n g because t h e owner of O s s e l l o ~ s threatened t o obtain a new alarm system i f M i l l e r revealed t h e i n t r i c a c i e s of t h e o l d system i n c o u r t . The owner t e s t i f i e d t h a t while he had s t a t e d he might change t h e system, he had n o t threatened t o take h i s business away from M i l l e r . Section 93-4910, R.C.M. 1947 s t a t e s i n p e r t i n e n t p a r t : "A motion t o postpone a t r i a l on grounds of t h e absence of evidence s h a l l only be made upon a f f i d a v i t showing t h e m a t e r i a l i t y of t h e evidence expected t o be obtained, and t h a t due d i l i g e n c e has been used t o procure it.* * *'I Here, no a f f i d a v i t was f i l e d t o show e i t h e r t h e materi- a l i t y of t h e proposed evidence o r t h a t due d i l i g e n c e was exercised. Counsel had represented defendant from March 10, 1975, through an e n t i r e previous t r i a l on t h e same matter, which r e s u l t e d i n a hung jury. The t r i a l involved h e r e began February 10, 1976, and while a subpoena was issued, it was not served on the prospective witness. The g r a n t i n g of a continuance is within t h e sound d i s c r e t i o n of t h e t r i a l c o u r t . S t a t e v. Paulson, 167 Mont. 310, 538 P.2d 339; S t a t e v. Kuilman, 1 1 1 Mont. 459, 110 P.2d 969. In view of defendant's f a i l u r e t o comply with s e c t i o n 93-4910, it cannot be s a i d t h e t r i a l c o u r t abused i t s d i s c r e t i o n i n denying t h e continuance. S t a t e v. Moorman, 133 Mont. 148, 321 P.2d 236. S p e c i f i c a t i o n of e r r o r 11. Defendant contends t h e evidence was i n s u f f i c i e n t t o s u s t a i n a conviction of burglary i n t h a t t h e r e was no showing defendant intended t o commit an offense within t h e building. The standard of t h i s Court t o measure jury determination is s t a t e d i n S t a t e v. Merseal, 167 Mont. 409, 415, "This Court remains evermindful of one funda- mental r u l e - - t h a t queBtions of f a c t must be determined s o l e l y by t h e ,3ury, and t h a t given a c e r t a i n l e g a l minimum of evidence, t h i s Court on review w i l l n o t s u b s t i t u t e i t s judgment f o r t h a t of the jury. * * * "On appeal we examine t h e evidence t o determine whether t h e v e r d i c t i s supported by s u b s t a n t i a l evidence. I n s o doing, we view t h e evidence i n t h e l i g h t most favorable t o t h e S t a t e . " See a l s o : S t a t e v. Farnes, Mon t . , 558 P.2d 4'7% 33 St.Rep. 1270; S t a t e v. Stoddard, 147 Mont. 402, 412 P.2d 827. Therefore, t h i s Court is l i m i t e d t o an examination of t h e evidence i n t h e l i g h t most favorable t o the s t a t e and a determination of whether t h e r e was s u b s t a n t i a l evidence t o support d e f e n d a n t ' s conviction. While defendant's story, i f believed, would lead t o a conclusion he was n o t g u i l t y of t h e crime of burglary, t h e jury was n o t r e q u i r e d t o b e l i e v e t h e testimony of defendant o r t h e testimony of LaPier. Several f a c t o r s tend t o support t h e j u r y ' s conclusion: 1. Defendant was found i n O s s e l l o l s Furniture S t o r e a t 1:42 a.m. h i d i n g from the p o l i c e . Cases from o t h e r j u r i s - d i c t i o n s have recognized t h e obvious inference t h a t a person found unlawfully on t h e premises of another i n t h e nighttime i s t h e r e f o r the purpose of committing a t h e f t . S t a t e v. Hopkins, 1 1 Utah 2d 363, 359 P.2d 486; Ex p a r t e Seyfried, 74 Idaho 467, 264 P.2d 685; People v. Henderson, 138 C . A . 2d 505, 292 P.2d 267. 2. A t e l e v i s i o n s e t had been pushed up a g a i n s t t h e opening i n t h e lower panel of t h e garage door, 3. Defendant's version of t h e i n c i d e n t was c o r r o b r a t e d only by h i s f r i e n d LaPier. No t r a c k s were seen leaving t h e building, no o t h e r person was found i n t h e building, and defendant himself s t a t e d t o the p o l i c e t h a t he and LaPier were t h e only I people i n t h e building. 4. There was c o n f l i c t i n g testimony regarding t h e p o s s i b i l i t y of anyone gaining entrance through t h e broken upper panel. If defendant could n o t have e n t e r e d t h e b u i l d i n g through t h e upper panel, it eould be i n f e r r e d he was i n s i d e t h e b u i l d i n g when t h e t e l e v i s i o n s e t was placed t o block t h e opening i n t h e lower pane 1. While defendant argues t h e r e was no d i r e c t proof o f i n t e n t t o commit a t h e f t from O s s e l l o ' s , t h e r u l e has long been e s t a b l i s h e d i n Montana t h a t use of c i r c u m s t a n t i a l evidence is a n acceptable and o f t e n convincing method of proving c r i m i n a l i n t e n t . A s we r e s t a t e d i n S t a t e v. Farnes, Mont . , 558 P.2d 472, 475, 33 S t .Rep. 1270, c i t i n g S t a t e v. Cooper, 158 Mont. 102, 110, 'I I ~ h e element of felonious i n t e n t i n every contested c r i m i n a l case must n e c e s s a r i l y be determined from t h e f a c t s and circumstances of t h e p a r t i c u l a r case, -- t h i s f o r t h e reason t h a t c r i m i n a l i n t e n t , being a s t a t e of mind, is r a r e l y s u s c e p t i b l e of d i r e c t o r p o s i t i v e proof and t h e r e f o r e must u s u a l l y be i n f e r r e d from t h e f a c t s t e s t i f i e d t o by witnesses and t h e circumstances a s developed by t h e evidence." * * "'The question of i n t e n t i s a question f o r t h e jury 1 11 The jury considered t h e evidence along with d e f e n d a n t ' s version of t h e i n c i d e n t and concluded defendant had t h e i n t e n t t o commit an offense within t h e b u i l d i n g . There was s u b s t a n t i a l evidence t o support t h a t conclusion. The judgment of conviction is affirmed. We Concur:

July 20, 1977

c60013bb-c381-4c02-8e63-6665c0807d8a

MCMAHON v FALLS MOBILE HOME CENTE

N/A

13197

Montana

Montana Supreme Court

No. 13197 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 MARION C U S H M A N McMAHON, P l a i n t i f f and Respondent, FALLS MOBILE HOME CENTER, INC., a Montana Corporation, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable Paul G . Hatfield, Judge presiding. Counsel of Record: For Appellant: LaRue Smith argued, Great F a l l s , Montana Cameron Ferguson, Great F a l l s , Montana For Respondent: John McCarvel argued, Great F a l l s , Montana - -- Submitted: llarch 1 6 , 1977 Decided : ^,JUL - 1 1977 - - i,u\-, ' i('$ I I Filed: , <?) ' Honorable Gordon Bennett, District Judge, sitting in place of Mr. Chief Justice Paul G. Hatfield, delivered the Opinion of the Court. This is an appeal by Falls Mobile Home Center, Inc. (hereinafter referred to as "seller") from an order of the district court, Cascade County, granting damages and attorney fees to Marion C. McMahon (hereinafter referred to as "buyer"). The appeal was also from "every action [of the trial court] in this case." In her complaint, filed March 7, 1974, the buyer asked rescission of her 1972 contract to purchase a mobile home on the ground of fraudulent inducement. She asked return of her payment on the contract and offered to return the home to the seller. After hearing, the court on April 29, 1975, ordered the seller to repair a "tip out section" and replace the back door within 30 days. It added that if defendant failed to carry out the order " * * * a rescission will be ordered to be carried Out in more specific detail * * *." It also awarded attorney fees in an amount to be determined. On July 28, 1975, the court issued the order appealed from. This order noted the previous order had not been complied with and ordered one Martin Tries, otherwise unidentified in the order, to make an estimate of the cost of the repairs and that the amount thus determined would be assessed as damages. It also awarded attorney's fees in the amount of $1,200. No judgment was entered of record on either order. The question of whether rescission was authorized or justified was argued and briefed extensively. The question is not germaine because rescission was never ordered or otherwise effectuated. While the court in its first order threatened to rescind the contract, it did not attempt or purport to do so in its second order. Also copiously argued and briefed was the question of whether the court acted properly in granting specific perform- ance, and then damages, when the prayer of the complaint asked for rescission only. In the first place, the prayer was not only for rescission but also for " * * * such other and further relief as to the court may seem just and equitable in the premises." With or without such a prayer, however, the prayer for rescission invoked the equitable powers of the court. The court having assumed equity jurisdiction could dispose of all questions properly raised, equitable or legal. Citizens State Bank v. Duus, 154 Mont. 18, 459 P.2d 696; Thisted v. Country Club Tower Corp., 146 Mont. 87, 405 P.2d 432. Here, the equit- able question of specific performance was raised and litigated. Under Rule 15(b), M.R.Civ.P. the issue could be decided in either law or equity, even if it had not been pleaded. The court heard substantial evidence of an amendatory oral contract to make re- pairs without objection. It was shown that the contract escaped the statute of frauds by being performable in less than a year, and being partly performed within that time. Consideration for the contract was provided by the buyer's agreement to release liability for damages upon completion of the repairs. Having found, upon substantial evidence, that the contract was unperformed, the court in its April order directed the seller to fully perform, thus discharging its purely equitable function. When the court found in July that the seller had failed to perform, it resorted to a legal remedy, damages. We find no error in this approach. We do question, however, the delegation by the court of the determination of the amount of damages to an appraiser, as was done in the July order. The order specified: " * * * that Martin Tries make an estimate of the cost of labor and materials to effect the said repairs * * * and that the amount thus deter- mined be and the same is hereby assessed as damages against the defendant herein." I t i s not a t a l l c l e a r from t h e t r a n s c r i p t t h a t t h i s i s what t h e c o u r t intended. O n t h e contrary, it seems clear t h e c o u r t intended t h a t T r i e s be c o n s t i t u t e d a kind of master under Rule 53, M.R.Civ.P., t o determine t h e c o s t of r e p a i r which t h e c o u r t would assess as damages. But t h e order appeared t o adopt i n p r a e s e n t i any damages t h a t T r i e s might determine i n futuro. This is impermissible on two grounds: it makes t h e award i n d e f i n i t e and d e l e g a t e s an exclusive j u d i c i a l function t o a nonjudicial agent. Money judgments must be s t a t e d i n d o l l a r s and c e n t s ( s e c t i o n 93-4710, R.C.M. 1947) and t h e amount may not be l e f t t o a m i n i s t e r i a l o f f i c e r t o be d e t e r - mined from d a t a o u t s i d e t h e record. Thomas v. McElroy, 420 S.W.2d 530, 243 Ark. 465; Hendryx v. W. L. Moody Cotton Co., 257 S.W. The f i n a l question r a i s e d i s as t o t h e awarding of $1,200 i n a t t o r n e y f e e s t o t h e buyer i n t h e J u l y order. A s t h e r e i s no s t a t u t o r y b a s i s f o r such an award, t h a t p a r t of t h e o r d e r must be reversed. The cause i s remanded f o r determination by t h e d i s t r i c t c o u r t of s p e c i f i c money damages under t h e o r i g i n a l w r i t t e n c o n t r a c t o r t h e amendatory o r a l c o n t r a c t , o r both. /R Hon. Gordon Bennett, D i s t r i c t Judge, s i t t i n g i n place of M r . Chief J u s t i c e Paul G. H a t f i e l d . W e concur: A J u s t i c e s C/ - 4 -

July 1, 1977

4a2666d5-e66a-4f30-83c7-bcd2830893a0

HENDRICKS v ANACONDA CO

N/A

13320

Montana

Montana Supreme Court

No. 13320 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CAMDEN J. HENDRICKS, Deceased, Claimant and Respondent, -vs- THE ANACONDA COMPANY, Defendant and Appellant. Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Joseph J. Picarelli argued, Butte, Montana For Respondent : Jack M. Scanlon argued, Anaconda, Montana Submitted: May 11, 1977 Decided : J U N 2 2 1977 Filed: J U N 2 2 1 m Mr. Justice John Conway Harrison delivered the Opinion of the Court. In October 1971 claimant Camden Hendricks was injured in an industrial accident while employed in a mine of defendant The Anaconda Company (Anaconda). He submitted a claim for compensation. Anaconda accepted it and began paying temporary total disability benefits, and continued until claimant's death in November 1973. The parties here stipulated the cause of death was unrelated to the industrial injury. Claimant's widow requested a lump sum disability payment that was denied by Anaconda and subsequently, on appeal, by the Worker's Compensation Division. Claimant's widow appealed the decision to the district court, Silver Bow County. That court reversed the Division and awarded claimant's widow a lump sum of $6,000. Prior to his demise claimant had seen two physicians and each made an estimate of the percentage of disability. The first physician estimated disability at 20%, the second, some months later, set the figure at 30%. The district court's award repre- sents an amount based on the 30% figure. Neither physician's report stated the period of healing had ended. The only additional testimony taken by the district court was that of Albert Pillen, an administrator of the Division's State Campensation Fund. No transcript of his testimony was filed as a part of this appeal record, but the briefs indicate the testimony explained how the state fund handles such claims. The question here is whether the widow has a right to a lump sum payment. I n 2 Larson's Workmen's Compensation Law, $58.40, there i s a general discussion, pertinent as background for our discussion of the issue involved here, it states: "558.40 Heritability and assignability of benefits, "In the opening portion of the book it was pointed out that one of the features distinguishing a compensa- tion award from a t o r t recovery is the absence of any property right i n an award which can survive i n favor of heirs. The problem most frequently arises i n connec- tion with schedule or other permanent p a r t i a l awards, when an employee who has been awarded, say, 312 weeks' bene- f i t s for loss of an arm dies a t the end of 1 2 weeks. The question i s whether h i s heirs have a claim upon the unaccrued 300 weeks' payments. "Accrued but unpaid installments are, of course, an asset of the estate, like any other debt. This is equally true of the widow's death benefits, accrued but unpaid installments of which go on her death to her heirs. When the award takes the form of a lump sum, the amount due as accrued payments i s the entire amount of the lump sum. "When, however, the award, although for a fixed number of weeks, i s paid weekly or.periodically, most jurisdictions i n the absence of a special statute t o the contrary have held that the heirs have no claim upon the unaccrued payments, since the award i s a personal one, based upon the employee's need for a substitute for h i s l o s t wages and earning capacity. There is, however, some contra authority. "This rule has been modified by statute i n some states, but it i s significant that the modification often takes the form, not of giving the unaccrued balance t o heirs indiscriminately, but of giving it i n fixed proportions t o dependent heirs, * * *I1 The statute pertinent here i s section 92-608, R.C.M. 1947: "(1) I f an injured employee dies and the injury was the proximate cause of such death, then the bene- ficiary of the deceased, a s the case may be, shall receive the same compensation as though the death occurred immediately following the injury, but the period during which the death benefit shall be paid s h a l l be reduced by the period during or for which compensation was paid for the injury. "(2) I f the employee shall die from some cause , other than the injury, there shall be no l i a b i l i t y for compensation a f t e r h i s death. "(3) The question as t o who constitutes a beneficiary shall be determined a s of the date of the happening of the accident t o the employee, whether death shall immediately result therefrom or not .I1 Subsection 2 of section 92-608 was discussed i n Breen v. Ind. Ace. Board, 150 Mont. 463, 475, 436 P.2d 701, where the Court said : "As we construe t h i s provision it simply means that i f an employee is receiving compen- sation a s the result of an i n d i s t r i a l injury and subsequently dies from causes other than t h i s injury, l i a b i l i t y for further compensation by way of death benefits or continuing disability benefits i s cut off. But w e do not construe t h i s statute a s terminating l i a b i l i t y for compensation accrued prior t o death but unpaid a t the time of death.'' 150 Mont. 475. Claimant's widow argues claimant had an accrued right t o a lump sum idemnity payment and that such right accrued when the physicians made their estimates of the percentage dfi impair- ment. The major difficulty with t h i s argument i s that a lump sum indemnity payment was not the only option available t o claimant a t the time of h i s death. A s noted i n McAlear v. McKee & Co., Mont . , 558 P.2d 1134,1136,1137, 33 St.Rep. 'I* * * there a r e two distinct types of p a r t i a l disability benefits which a claimant may seek 9~ * *. A claimant may elect a disability benefit under section 92-703.1, R,C.M. 1947, or an indemnity benefit under section 92-709, R.C.M. 1947. "The distinction between these two benefits is that section 92-703.1 bases the benefit upon actual loss of earning capacity resulting from the injury, whereas section 92-709 awards compensation regardless of earnings t o compensate for possible loss of earning capacity i n the future. Jones v. Glac. General Assurance Co., 145 Mont, 326, 400 P.2d 888." 33 St.Rep. 1341; 558 P.2d 1137. Here claimant made no election prior t o h i s death. I f claimant had elected to receive disability benefits Breen s t a t e s these would have ceased a t death. To say claimant had accrued rights i n a lump sum indemnity benefit requires that options which the deceased claimant could have exercised be made for him and given retroactive effect. 1A second difficulty is that prior t o claimant's death there was never a determination made that the healing period had ended. McAlear points out: "* * * The statutes which govern are section 92- 701.1, R.C.M. 1947, which states: " I * * * Total temporary disability benefits s h a l l be paid for the duration of the worker's temporary disability. ' and section 92-439, R.C.M. 1947, which defines temporary t o t a l disability as: I"* * * a condition resulting from an injury as defined i n t h i s act that results i n t o t a l loss of wages and exists u n t i l the injured workman i s a s f a r restored as the permanent character of the injuries w i l l permit. I (Emphasis added.) Therefore, temporary t o t a l disability ceases when the workman's physical condition i s as f a r restored a s the permanent character of the injuries w i l l permit. When the claimant has reached t h i s stage i n h i s healing process temporary t o t a l disability ceases, and p a r t i a l disability begins i f there is permanent p a r t i a l impair- ment." 33 St. Rep. 1340; 558 P.2d 1136. N o indemnity payment may accrue u n t i l the healing period is completed. Blessed with hindsight, it is easy t o see the benefit t o claimant's estate that would result from having claimant fully healed and having made an election to go under the indemnity provisions. The legislature could grant death benefits t o depen- dents of claimants who die from causes unrelated t o their indus- t r i a l injury, as yet it has not done so. Instead it has prohibited payment of compensation a f t e r death from unrelated causes. Although it i s unfortunate claimant had no accrued lump sum indemnity pay- ment due him prior t o h i s death, the fact remains he did not. Since no compensation accrued to the claimant remains unpaid, the district court erred in granting a lump sum award to claimant's widow. The cause is reversed with direction to dismiss. We Concur: /-----7

June 22, 1977

d8f7a354-dc38-46c0-9273-bd3de13078c1

DYKSTERHOUSE v DOORNBOS

N/A

13454

Montana

Montana Supreme Court

No. 13454 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 Plaintiff and Respondent, Defendant and Appellant. Appeal from: District Court of the Eighteenth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellant: Bolinger and Wellcome, Bozeman, Montana Harry A. Bolinger argued, Bozeman, Montana For Respondent: Holter, Heath and Kirwan, Bozeman, Montana Peter M. Kirwan argued, Bozeman, Montana Submitted: April 19, 1977 Decided: MAY 2 5 1977 Filed: K A Y 2 5 ~gn M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court. Action by buyer a g a i n s t seller t o enforce s p e c i f i c performance of a c o n t r a c t t o sell a t r a c t of land i n Belgrade, Montana. The d i s t r i c t c o u r t of G a l l a t i n County, Hon. Frank E. B l a i r , d i s t r i c t judge p r e s i d i n g without a jury, entered judgment f o r buyer. S e l l e r appeals. The defendant-seller contends: (1) That no complete c o n t r a c t , o r a l o r w r i t t e n , was ever entered i n t o ; ( 2 ) t h a t t h e c o n t r a c t is unenforceable under t h e s t a t u t e of frauds; ( 3 ) t h a t t h e buyer d i d n o t i n s t a l l and pay f o r a sewer l i n e a c r o s s t h e property i n r e l i a n c e on t h e a l l e g e d c o n t r a c t and t h u s d i d n o t change h i s p o s i t i o n t o h i s prejudice. The p l a i n t i f f - b u y e r contends: (1) That t h e p a r t i e s e n t e r e d i n t o a c o n t r a c t t o sell and buy approximately 25 a c r e s of land a t $2,000 p e r a c r e w i t h 2 9 % down with t h e balance a t 6% i n t e r e s t payable i n monthly i n s t a l l m e n t s over 10 years; ( 2 ) t h a t f o u r d i f f e r e n t w r i t i n g s t o g e t h e r s a t i s f y t h e s t a t u t e of f r a u d s ; ( 3 ) t h a t p a r t i a l performance t a k e s t h e c o n t r a c t o u t of t h e s t a t - u t e of frauds; and, ( 4 ) e q u i t a b l e e s t o p p e l b a r s t h e defense o f t h e s t a t u t e of frauds. The d i s t r i c t c o u r t , G a l l a t i n County, Honorable Frank E. B l a i r s i t t i n g without a jury, entered f i n d i n g s of f a c t , conclusions of law, and judgment f o r t h e p l a i n t i f f - b u y e r decreeing s p e c i f i c performance. Defendant-seller appeals. The c o n t e n t i o n s of t h e p a r t i e s can be reduced t o e s s e n t i - a l l y two i s s u e s : (1) Whether t h e evidence supports a f i n d i n g of a f i n a l agreement t o buy and sell land, and (2) whether t h a t agree- ment i s unenforceable under t h e s t a t u t e of f r a u d s . The t r a c t of land i n q u e s t i o n i s l o c a t e d a t Belgrade, Montana. P l a i n t i f f d e s i r e d t h e land s o he could c o n s t r u c t a n o u t f a l l sewer a c r o s s t h e t r a c t from a small subdivision t o t h e new c i t y sewer system of Belgrade. Apparently t h e o t h e r a l t e r n a - t i v e s of a more c i r c u i t o u s r o u t e and a pump s t a t i o n w e r e l e s s workable f o r engineering reasons. In July, 1974, defendant had o f f e r e d t o sell t h e land t o p l a i n t i f f and on August 29 he went t o p l a i n t i f f ' s residence and again o f f e r e d t o s e l l t h e t r a c t of land. Later t h a t day t h e p a r t i e s together with p l a i n t i f f ' s son went t o an a t t o r n e y ' s o f f i c e seeking h i s advice. The d i s t r i c t c o u r t found t h a t a t t h e a t t o r n e y ' s o f f i c e t h e p a r t i e s agreed t o buy and sell t h e land on t h e following t e r m s : t h e p r i c e would be $2,000 per a c r e ; down payment of 29% w a s t o be paid upon d e l i v e r y of t i t l e insurance policy; t h e balance w a s t o be payable over 1 0 years i n equal monthly payments with i n t e r e s t a t 6%, secured by real e s t a t e mort- gages owned by p l a i n t i f f t o be pledged i n escrow with t h e Manhattan S t a t e Bank with i n s t r u c t i o n s t o pay t h e monthly payments o u t of t h e proceeds. The c o u r t found t h e p a r t i e s intended t o bind them- s e l v e s t o t h e agreement by executing and accepting a check f o r $5,000 e a r n e s t money. The acreage and t o t a l purchase p r i c e w e r e t o be determined by a survey of t h e t r a c t t o be done by James Cummings, land surveyor. The survey determined t h e acreage t o be 23.129 a c r e s and t h e r e f o r e t h e t o t a l purchase p r i c e was $46,258. I n a d d i t i o n , t h e buyer was t o g r a n t a right-of-way f o r a sewer a c r o s s t h e t r a c t f o r defendant's residence adjacent t o t h e t r a c t and t o i n s t a l l a sewer hookup f o r t h e residence. The c o u r t ' s findings of an agreement t o buy and sell and its s p e c i f i c t e r m s a r e supported by t h e testimony of James Cummings, t h e surveyor; t h e a t t o r n e y who had been c a l l e d on f o r advice and witnessed some of t h e negotiations; and Hank Dyksterhouse, plain- t i f f ' s son. Defendant Doornbos' testimony d i f f e r s i n t h a t he contends they agreed on a p r i c e b u t were unable t o agree on t h e t e r m s of payment a s t o i n t e r e s t , length of t i m e t o pay t h e balance, and s e c u r i t y f o r t h e deferred payments. I t could be argued h i s testimony i s corroborated by t h e a t t o r n e y because he w a s uncer- t a i n of t h e agreement on those terms. The a t t o r n e y was not r e t a i n e d by e i t h e r p a r t y t o d r a f t an agreement, and t h e t e r m s w e r e never reduced t o a formal w r i t t e n c o n t r a c t signed by t h e p a r t i e s . W e f i n d t h a t although the evidence is c o n f l i c t i n g t h e r e is s u b s t a n t i a l c r e d i b l e evidence i n t h e record t o support t h e c o u r t ' s f i n d i n g s of an agreement t o buy and sell t h e land and t h e t e r m s thereof. Therefore, they must be upheld on appeal" Hellickson v. B a r r e t t Mobile Home Transp., 161 Mont. 455, 462, 507 P.2d 523, states t h a t even i f t h e testimony were d i r e c t l y c o n f l i c t i n g : " * * * W e cannot r e t r y f a c t u a l determinations made by t h e t r i a l c o u r t . " The next i s s u e i s whether t h e s t a t u t e of frauds b a r s enforcement of t h e agreement. The s t a t u t e of frauds provides t h a t no agreement f o r t h e sale of r e a l property is v a l i d unless t h e same, o r some note o r memorandum t h e r e o f , be i n w r i t i n g and subscribed by t h e p a r t y t o be charqed; b u t t h i s does n o t abridge t h e power of any c o u r t t o compel t h e s p e c i f i c performance of any agreement f o r t h e sale of real property i n case of p a r t performance t h e r e o f . Sections 74- 203, 13-606 ( 4 ) , and 93-1401-7 ( 4 ) , R.C.M. 1947. The r u l e of p a r t performance a p p l i c a b l e under t h e s t a t u t e now c o d i f i e d as s e c t i o n 74-203, is s t a t e d i n Hogan v. Thrasher, 72 Mont. 318, 328, 233 P. 607, quoting from 27 C . J . 343: "'Where one p a r t y t o a n o r a l c o n t r a c t has, i n r e l i a n c e thereon, so f a r performed h i s p a r t of t h e agreement t h a t it would be p e r p e t r a t i n g a fraud upon him t o allow t h e o t h e r p a r t y t o re- pudiate t h e c o n t r a c t and t o set up t h e s t a t u t e of frauds i n j u s t i f i c a t i o n t h e r e o f , equity w i l l regard t h e case a s being removed from t h e oper- a t i o n of t h e s t a t u t e and w i l l enforce t h e c o n t r a c t by decreeing specific performance of it, or by granting other appropriate relief.' * * * (Citing cases. ) "While there is not any hard-and-fast rule for determining just what acts will constitute part performance sufficient to take a case out of the operation of the statute, the authorities are practically all agreed that 'if possession taken in pursuance of the contract is followed by the making of valuable improvements on the land by the vendee, there is a sufficient part performance.'" Also see Kettlekamp v. Watkins, 70 Mont. 391, 399, 225 P. 1003, where taking possession and making alterations of the property and paying the rent agreed upon for a considerable period, under the overwhelming weight of authority, took an oral lease out of the statute of frauds. In this case on August 29, the parties together with Hank Dyksterhouse went to the offices of Mr. Cummings, the surveyor. On a plat showing the land, defendant indicated the boundaries of the tract as Mr. Cummings marked them on the plat. Defendant told Mr. Cummings he had sold the tract to plaintiff and directed him to make a survey of it and prepare a certificate of survey. Mr. Cummings and the parties then discussed the location of the sewer line plaintiff intended to build and the location of the sewer right-of-way to be granted back to defendant. At this time defendant knew the location of the proposed sewer line and made no objection. Shortly thereafter Mr. Cummings' employees made the survey, prepared the certificate of survey, and laid out the sewer location on the ground. Early in September plaintiff entered into possession and began construction of the sewer line. It was completed October 5. The line lying across the tract cost over $6,000 and the cost of the whole line was over $7,000. As constructed it contained hookups for future homes and a hookup installed for defendant's use. While the sewer line was being constructed defendant - 5 - lived in the immediate vicinity and had actual knowledge thereof. At no time during the construction did he object or attempt to stop construction of the sewer line; nor did he ever inform plain- tiff he was dissatisfied with its location. It was only after the sewer had been constructed that defendant repudiated his con- tract and refused to perform. These fact findings by the district court show sufficient part performance to remove the agreement from the bar of the statute.Hogan v. Thrasher, supra; McIntyre v. Dawes, 71 Mont. 367, 376, 229 P. 846; Cobban v. Hecklen, 27 Mont. 245, 70 P. 805. Each of the findings of fact heretofore stated is supported by substantial credible evidence and testimony in the record and must be upheld on appeal. Hellickson, supra. On this basis the judgment must be affirmed. Defendant's testimony reveals dissatisfaction concerning the location of the sewer line. He claims its location prevents him from utilizing the sewer line for homesite development on his remaining property along the boundary of the tract sold. What- ever his hopes may have been, there is nothing other than his testimony to indicate the bargain was otherwise. It appears Mr. Cummings had done other work for both men, that they both trusted him, and that they left it to him to locate the sewer in the best place. Cummings was also the engineer for the City of Belgrade which was concerned with getting the subdivision connected to the city sewer system. There is no complaint as to Mr. Cumrnings' work. Under the circumstances defendant's argument concerning who paid for the sewer construction and what plaintiff's financial arrangements were with his son for its payment is irrelevant. The fact remains that it was built and the land improved by the plaintiff in reliance upon the oral agreement to buy and sell the land. Having determined that part performance takes the contract out of the statute of frauds, it is unnecessary to determine whether or not the earnest money check endorsed by defendant, the engineer's plat on which defendant indicated the tract sold, the certificate of survey, and the attorney's notes, together, satisfy the statute of frauds under our decision in Anderson v. KFBB Broadcasting Corp., 143 Mont. 423, 391 P.2d 2. Plaintiff's argument on estoppel is essentially covered by our discussion of the part performance exception to the statute of frauds. Judgment affirmed. Justice W e , c o n c u r ) 1

May 25, 1977

388d042a-4e94-4e53-94f4-a407848e2484

STATE v SATHER

N/A

13523

Montana

Montana Supreme Court

N o . 13523 I N T H E SUPREME C O U R T O F T H E STATE O F MONTANA 1977 STATE O F M O N T A N A , P l a i n t i f f and Respondent, -vs- WILLIAM CHRISTOPHER SATHER, Defendant and Appellant. Appeal from: District Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable E. Gardner Brownlee, Judge p r e s i d i n g . Counsel of Record: For Appellant: Paul B. Smith argued, Missoula, Montana William Boggs argued, Missoula, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Robert Deschamps 111, County Attorney, Missoula, Montana Ed McLean, Deputy County Attorney, argued, Missoula, Montana - - Submitted: A p r i l 15, 1977 Decided: JUN - 2 1977 M r . J u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court. Defendant William Christopher Sather was convicted of t h e crime of attempted burglary by jury v e r d i c t i n t h e d i s t r i c t c o u r t of Missoula County. H e was sentenced t o a t e r m of 50 y e a r s i n t h e s t a t e prison a s a p e r s i s t e n t felony offender. De- fendant appeals from t h e sentence imposed. his case comes t o u s on t h e b a s i s of a n agreed s t a t e - ment of t h e proceedings, t h e d i s t r i c t c o u r t f i l e , and a certi- f i e d copy of t h e docket e n t r i e s i n l i e u of a t r a n s c r i p t and ex- h i b i t s pursuant t o s e c t i o n 95-2408, R.C.M. 1947. Defendant Sather and Claude Sylvester McIntosh w e r e a r r e s t e d on September 30, 1975. They w e r e incarcerated i n t h e Missoula County j a i l . O n October 15 they w e r e j o i n t l y charged by d i r e c t information with t h e crimes of attempted burglary and t h e f t . Each entered a p l e a of not g u i l t y t o each charge. O n October 31 a w r i t t e n plea bargain proposal and agree- ment signed by t h e deputy county a t t o r n e y and McIntosh w a s f i l e d with t h e d i s t r i c t c o u r t . The S t a t e , i n consideration of a plea of g u i l t y t o t h e two charges, agreed t o recommend a sentence of 10 years on t h e charge of attempted burglary and 5 years on t h e charge of t h e f t t o be served concurrently and another 1 0 y e a r s and 5 years on charges i n another case t o be served concurrently i n t h a t case but consecutively with t h e sentence imposed f o r t h e attempted burglary. O n November 4 McIntosh appeared i n c o u r t with counsel, withdrew h i s plea of not g u i l t y t o t h e charges of attempted burglary and t h e f t and entered a p l e a of g u i l t y t o each charge. A presentence i n v e s t i g a t i o n w a s ordered and sentencing set f o r November 20. O n November 20 McIntosh received a sentence i n conformity with t h e p l e a bargain proposal and agreement. McIntosh had pre- viously been convicted of t h r e e f e l o n i e s , two of them within t h e previous f i v e years. I n t h e meantime during t h e week of November 7 t o Nov- ember 1 4 a parole revocation hearing w a s held i n t h e Missoula County s h e r i f f ' s o f f i c e on defendant S a t h e r ' s parole. Defen- d a n t Sather requested counsel but was n o t represented by counsel a t t h e parole revocation hearing. On November 1 4 defendant Sather w a s transported t o t h e Montana S t a t e Prison i n Deer Lodge. O n December 29 t h e Parole Board a t Montana S t a t e Prison revoked defendant S a t h e r ' s p a r o l e contingent on h i s case being recon- sidered a f t e r d i s p o s i t i o n of t h e pending charges. The charges of attempted burglary and t h e f t a g a i n s t defendant Sather wereset f o r t r i a l i n t h e A p r i l , 1976 jury term. Names of p o t e n t i a l j u r o r s w e r e drawn on February 20. On March 16 t h e prospective jury panel was f i n a l i z e d and s e n t questionnaires by t h e c l e r k of c o u r t . O n March 18 t h e case w a s s e t f o r t r i a l on A p r i l 5 as t h e 9th case. O n March 22 t h e c a s e was reset f o r t r i a l from t h e 9 t h case t o t h e 19th case on April 5. Subsequently t h e c a s e was reset f o r April 1 2 and f i n a l l y f o r April 8. O n April 7 defendant Sather w a s transported from t h e state prison t o t h e Missoula County j a i l . O n t h a t d a t e t h e dep- uty county a t t o r n e y f i l e d and served upon defendant's counsel a n o t i c e of i n t e n t t o seek increased punishment pursuant t o sec- t i o n s 95-1506 and 95-1507, R.C.M. 1947, by reason of defendant's p r i o r conviction of kidnapping. A t t h a t t i m e t h e deputy county a t t o r n e y s t a t e d t h a t he would withdraw t h i s n o t i c e i f defendant plead g u i l t y before t h e case went t o t r i a l and would thereupon recommend a sentence of 10 years. The t r i a l s t a r t e d on April 8. A t t h e conclusion of t h e s t a t e ' s case-in-chief, t h e presiding judge dismissed t h e charge of t h e f t on motion of t h e S t a t e . O n A p r i l 12, t h e jury returned a v e r d i c t of g u i l t y on t h e charge of attempted burglary. O n A p r i l 19 defendant Sather was sentenced t o 50 years imprisonment in the state prison and given credit for 45 days served in the Missoula County jail. No presentence report was made by the State Board of Pardons. On more than one occasion between defendant Sather's arrest and trial the deputy county attorney and defendant's counsel discussed the matter of defendant's plea. The deputy county attorney offered to recommend to the sentencing judge that defendant receive a sentence of 10 years in the state prison if he agreed to plead guilty. At the start of trial and again on the day of sentenc- ing, counsel for defendant objected to the filing of notice to seek increased punishment less than 24 hours before trial con- tending that the filing of such notice under the circumstances was unlawful and unfair. The district court overruled defendant's objection. We were advised upon oral argument that during the pen- dency of this appeal, defendant Sather applied to the Sentence Review Board for reduction of his sentence which was denied. Defendant has appealed from the final judgment. All specifications of error are directed at the sentence imposed. None are directed at his conviction of attempted burglary. Defendant raises three specifications of error: (1) That Montana's statute of increased punishment for prior offenders as applied in this case denies defendant due process of law as required by federal and state constitutional provisions. (2) That the notice of intention to seek increased punish- ment was not timely served. (3) That defendant was not given proper credit for time served prior to conviction against the sentence imposed. Defendant's first specification of error carries us into deep constitutional waters. He claims that realistically he was sentenced t o 10 years f o r attempted burglary and 40 years f o r refusing t o plead g u i l t y and i n s i s t i n g upon a jury t r i a l . The core of h i s argument is simply t h a t t h e prosecutor used plea bargaining procedures and invoked t h e habitual criminal s t a t u t e f o r an improper purpose and when t h a t d i d not work, t h e judge punished him with an excessive sentence f o r refusing t o plead g u i l t y . Defendant a s s e r t s t h a t t h e t o t a l i t y of circumstances demonstrates t h e t r u t h of h i s contentions and s p e c i f i c a l l y points t o these: (1) Knowledge by t h e prosecutor of defendant's p r i o r conviction long before invoking t h e habitual criminal s t a t u t e on t h e eve of t r i a l , ( 2 ) apparent determination by t h e prosecutor t h a t t h e public i n t e r e s t required no g r e a t e r sentence than 1 0 years a s evidenced by t h e prosecutor's o f f e r t o recommend a 10 year sen- tence i f defendant would plead g u i l t y , ( 3 ) a f t e r invoking t h e habitual criminal s t a t u t e less than 24 hours before t r i a l , t h e prosecutor's o f f e r t o withdraw it and recommend a 1 0 year sentence i f defendant would plead g u i l t y before t h e t r i a l s t a r t e d , ( 4 ) t h e f a i l u r e of t h e sentencing judge t o secure and u t i l i z e a presentence i n v e s t i g a t i o n and r e p o r t from t h e S t a t e Board of Pardons i n sen- tencing defendant, and (5) t h e d i s p a r i t y of sentence imposed upon h i s codefendant who plead g u i l t y as compared t o t h e sentence he received. Because of these circumstances, defendant contends he was denied due process i n v i o l a t i o n of f e d e r a l and s t a t e consti- t u t i o n a l requirements. The S t a t e , on t h e o t h e r hand, denies any abuse of d i s - c r e t i o n o r misconduct on t h e p a r t of t h e prosecutor o r sentencing judge. The S t a t e points o u t t h a t t h e p r a c t i c e of plea bargaining between t h e prosecutor and defendant wherein t h e prosecutor o f f e r s t o recommend a l i g h t e r sentence i n exchange f o r a g u i l t y plea i s n e i t h e r coercive i n a c o n s t i t u t i o n a l sense nor otherwise constitu- t i o n a l l y infirm. The S t a t e argues t h a t where, a s here, t h e r e i s no evidence of bad faith, discrimination or arbitrary use of plea bargaining, it is unobjectionable. The State emphasizes that both the prosecutor and judge acted within the limits of their statutory authority in sentencing defendant under Montana's habitual criminal statute. The State denies any abuse of dis- cretion on the part of the prosecutor or judge. In short, the State denies any "due process" violation under the facts of this case. It is important to note that defendant does not attack plea bargaining per se nor contend that Montana's habitual crim- inal statute is unconstitutional on its face. Defendant's con- stitutional attack is bottomed on the proposition that these procedures were unconstitutionally applied in his case to deny him due process of law. The broad dimensions of the pertinent constitutional re- quirements are quite clear. A person cannot be deprived of his liberty without due process of law. Fourteenth Amendment, United States Constitution; Art. 11, Section 17, 1972 Montana Constitu- tion. A defendant in a criminal case has a constitutional right to a jury trial, Sixth Amendment, United States Constitution; Art. 11, Section 26, 1972 Montana Constitution. He also has the right or privilege against self-incrimination. Fifth Amendment, United States Constitution; Art. 11, Section 25, 1972 Montana Constitution. He waives these rights by entering a plea of guilty, but such waiver must be voluntary. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L Ed 2d 747, and cases cited therein. A coerced plea of guilty violates constitutional due process requirements. Rohrer v. Montana, 237 F.Supp. 747 (1965). Imper- missible coercion may exist in a variety of forms arising out of the conduct of the prosecutor or judge acting within statutory authority. North Carolina v. Pearce, 395 U.S. 711, 8 4 S.Ct. 2072, 23 L Ed 2d 656; Hayes v. Cowen, United States Court of Appeals, 6 t h C i r c u i t (No. 76-1409), December 30, 1976. Vindictive, re- t a l i a t o r y o r p u n i t i v e use of otherwise unobjectionable procedures offends c o n s t i t u t i o n a l due process requirements. Blackledge v. Perry, 417 U.S. 2 1 , 94 S.Ct. 2098, 40 L Ed 2d 628; North Carolina v. Pearce, supra; Hayes v. Cowen, supra. The record i n t h i s c a s e s t r o n g l y suggests a c o n s t i t u t i o n - a l l y impermissible use of plea bargaining and t h e h a b i t u a l c r i m - i n a l s t a t u t e by t h e prosecutor. Long a f t e r defendant's background and p r i o r conviction w e r e known t o t h e prosecutor and a f t e r p l e a bargaining had f a i l e d , t h e prosecutor invoked t h e h a b i t u a l c r i m - i n a l s t a t u t e t o s u b j e c t defendant t o a p o t e n t i a l sentence of 1 0 0 years a s opposed t o t h e s t a t u t o r y maximum of 1 0 years f o r attempted burglary. See s e c t i o n 95-1507, R.C.M. 1947; s e c t i o n 94-4-103, R.C.M. 1947; s e c t i o n 94-6-204, R.C.M. 1947. After invoking t h e h a b i t u a l criminal s t a t u t e t h e day before t r i a l , t h e prosecutor o f f e r e d t o withdraw t h i s a c t i o n and recommend a sentence of 10 years i f defendant would plead g u i l t y before t h e t r i a l s t a r t e d . The record i s barren of any event o r circumstance t h a t would jus- t i f y such a c t i o n by t h e prosecutor within t h e l e g i t i m a t e object- i v e s of t h e h a b i t u a l criminal s t a t u t e o r t h e criminal j u s t i c e system. Although t h e use of t h e h a b i t u a l criminal s t a t u t e i s d i s c r e t i o n a r y with t h e prosecutor, t h a t d i s c r e t i o n is n o t un- l i m i t e d and cannot be used f o r improper purposes. H e r e t h e prose- c u t o r knew of defendant's p r i o r criminal record and had t h e p a r o l e board's evaluation of defendant before him and had completed h i s information gathering long before invoking t h e h a b i t u a l criminal s t a t u t e . When t h e s e functions w e r e completed, t h e prosecutor was i n a p o s i t i o n t o evaluate whether t h e h a b i t u a l criminal s t a t u t e should be invoked i n t h e public i n t e r e s t o r not. The prosecutor d i d not do s o a t t h a t t i m e b u t waited u n t i l p l e a bargaining had broken down and t r i a l was only 24 hours away and even then o f f e r e d t o withdraw h i s a c t i o n under t h e h a b i t u a l criminal s t a t u t e and recommend a 10 year sentence i f defendant would plead g u i l t y . This a c t i o n is n o t c o n s i s t e n t with a determination t h a t t h e p u b l i c i n t e r e s t r e q u i r e d increased punishment of defendant under t h e h a b i t u a l c r i m i n a l s t a t u t e . The o n l y supportable i n f e r e n c e i s t h a t such conduct was used i n an attempt t o coerce defendant i n t o waiving h i s r i g h t t o a jury t r i a l . Subsequent events, while n o t conclusive, lend support t o t h i s inference. R e t a l i a t o r y a c t i o n on t h e p a r t of t h e prosecutor f o r t h e e x e r c i s e of procedural r i g h t s by a n accused has been h e l d t o vio- late c o n s i t u t i o n a l due process requirements. Blackledge v. Perry, supra. There t h e United States Supreme Court held t h a t where defendant had appealed h i s conviction of misdemeanor a s s a u l t i n a lower c o u r t and was e n t i t l e d t o a t r i a l d e novo i n s u p e r i o r c o u r t under state law, t h e p r o s e c u t o r ' s subsequent a c t i o n i n ob- t a i n i n g a n indictment f o r felony a s s a u l t covering t h e same con- d u c t contravened t h e due process c l a u s e of t h e Fourteenth Amend- ment. The b a s i s f o r t h e r u l i n g was t h a t a defendant pursuing h i s procedural r i g h t s under s t a t e law i s e n t i t l e d t o pursue t h o s e r i g h t s without apprehension t h a t t h e S t a t e w i l l r e t a l i a t e by s u b s t i t u t i n g a more s e r i o u s charge f o r t h e o r i g i n a l one and t h u s s u b j e c t him t o a s i g n i f i c a n t l y increased p o t e n t i a l period of in- c a r c e r a t i o n . S i m i l a r holdings have been handed down by o t h e r f e d e r a l c o u r t s . The f e d e r a l c o u r t of appeals f o r t h e District of Columbia reversed a conviction f o r t h e f i r s t degree murder following t h e defendants securing of a m i s t r i a l on a p r i o r charge of second degree murder. United S t a t e s v. Jamison, 505 F.2d 407 (1974). The United S t a t e s D i s t r i c t Court i n C a l i f o r n i a refused t o allow prosecution of an indictment on more s e r i o u s charges a f t e r de- fendant had a s s e r t e d h i s r i g h t t o a change of venue on a n i n d i c t - ment charging l e s s s e r i o u s offenses. United S t a t e s v. DeMarco, 401 F.Supp. 505 (1975). And i n United S t a t e s v. Ruesga-Martinez, 534 F.2d 1367 ( 9 t h C i r . 1976) t h e f e d e r a l c o u r t of a p p e a l s f o r t h e 9 t h C i r c u i t held t h a t a defendant cannot be t r i e d on a felony indictment a f t e r he has refused t o plead g u i l t y t o a misdemeanor, i f no j u s t i f i c a t i o n f o r t h e i n c r e a s e i n s e v e r i t y of t h e charges i s o f f e r e d . W e perceive no d i f f e r e n c e i n p r i n c i p l e between t h e s e c a s e s and t h e i n s t a n t c a s e where t h e charge remains unchanged b u t a s u b s t a n t i a l l y increased p e n a l t y i s sought by invoking t h e h a b i t u a l c r i m i n a l s t a t u t e . The f e d e r a l c o u r t of appeals f o r t h e 6 t h C i r c u i t has r e c e n t l y held t h a t t h e p r o s e c u t o r ' s t a c t i c s i n a c a s e involving > p l e a bargaining and a h a b i t u a l c r i m i n a l s t a t u t e , placed t h e de- fendant i n f e a r of r e t a l i a t o r y a c t i o n f o r i n s i s t i n g upon h i s c o n s t i t u t i o n a l r i g h t t o stand t r i a l and t h a t c o n s t i t u t i o n a l due process was v i o l a t e d . Hayes v. Cowan, supra. c his c a s e i s s i m i - l a r , although not i d e n t i c a l , t o t h e i n s t a n t case on t h e f a c t s . I n Hayes t h e defendant was i n d i c t e d f o r forgery. A f t e r a r r a i g n - ment, a p r e t r i a l conference was held with t h e prosecutor who o f f e r e d t o recommend a 5 year sentence i f defendant would plead g u i l t y . Defendant w a s warned t h a t i f he d i d n o t plead g u i l t y he would be charged under t h e h a b i t u a l c r i m i n a l s t a t u t e . Defen- d a n t refused t o plead g u i l t y , but i n s i s t e d on r e c e i v i n g a f u l l t r i a l . The prosecutor then obtained a new indictment from t h e grand jury charging defendant under t h e h a b i t u a l c r i m i n a l s t a t u t e based upon t h e forgery a s a t h i r d offense. Defendant was con- v i c t e d by a jury, and on t h e i n s t r u c t i o n s of t h e judge, t h e man- d a t o r y l i f e sentence f o r a t h i r d o f f e n s e h a b i t u a l c r i m i n a l was imposed. I n vacating t h e sentence, t h e c o u r t i n Hayes v. Cowan, supra, set f o r t h its reasoning: "The Commonwealth urges t h a t t h e e n t i r e concept of p l e a bargaining w i l l be destroyed i f prose- c u t o r s a r e n o t allowed t o seek convictions on more s e r i o u s charges i f defendants r e f u s e t o plead g u i l t y . W e do n o t agree. Although a prosecutor may i n t h e course of p l e a n e g o t i a t i o n o f f e r a defendant concessions r e l a t i n g t o p o s e u c t i o n under an e x i s t i n g indictment, [ C i t a t i o n s omitted.] he may not t h r e a t e n a defendant with t h e consequence t h a t more severe charges may be brought i f he i n s i s t s on going t o t r i a l . When a prosecutor o b t a i n s an indictment l e s s severe than t h e f a c t s known t o him a t t h e t i m e might permit, he makes a d i s c r e t i o n a r y determination t h a t t h e interests of t h e s t a t e a r e served by not seeking more s e r i o u s charges. [ C i t a t i o n s omitted.] Accordingly, i f a f t e r p l e a negotiations f a i l , he then procures an indictment charging a more s e r i o u s crime, a strong inference is c r e a t e d t h a t t h e only reason f o r t h e more s e r i o u s charge i s vindictiveness. Under t h e s e circumstances, t h e prosecutor should be required t o j u s t i f y h i s a c t i o n . I n t h i s c a s e , a vindic- t i v e motive need n o t be i n f e r r e d . The prosecutor has admitted i t . " The only m a t e r i a l d i s t i n c t i o n between Hayes and t h e c a s e on appeal is t h a t t h e r e t h e prosecutor expressly threatened t h e defendant with mandatory increased punishment under t h e h a b i t u a l criminal s t a t u t e i f he d i d not plead g u i l t y , while here t h e prosecutor ex- pressed no t h r e a t but simply invoked a d i s c r e t i o n a r y and p o t e n t i a l l y g r e a t e r penalty a f t e r plea bargaining had broken down. I n our view, t h e coercive e f f e c t is a s s u r e l y p r e s e n t i n t h e i n s t a n t case a s i n Hayes, d i f f e r i n g only i n degree. For t h e foregoing reasons and based on t h e c i t e d a u t h o r i t y , w e hold t h a t defendant w a s denied due process under f e d e r a l and s t a t e c o n s t i t u t i o n a l provisions a s applied t o t h e f a c t s of t h i s case. W e do not hold t h a t t h e plea bargaining process i n i t s e l f i s c o n s t i t u t i o n a l l y infirm nor t h a t Montana's h a b i t u a l criminal s t a t u t e is u n c o n s t i t u t i o n a l on i t s face. Defendant's second s p e c i f i c a t i o n of e r r o r r e l a t i n g t o t h e t i m e l i n e s s of invoking t h e h a b i t u a l criminal s t a t u t e i s inseparable from t h e c o n s t i t u t i o n a l i s s u e . A s t h e timing of i t s i n j e c t i o n i n t o t h e case has been discussed previously and forms a b a s i s f o r our r u l i n g on t h e c o n s t i t u t i o n a l i s s u e r a i s e d i n defendant's f i r s t s p e c i f i c a t i o n of e r r o r , f u r t h e r discussion appears unnecessary. I n its b r i e f t h e S t a t e concedes defendant's t h i r d spec- i f i c a t i o n of e r r o r . The S t a t e admits t h a t defendant i s e n t i t l e d t o c r e d i t of 6 months and 22 days a g a i n s t h i s sentence. This represents t h e t i m e a c t u a l l y served by defendant between t h e d a t e of h i s a r r e s t and t h e d a t e of sentence. The 50 year sentence imposed i s vacated. The S t a t e ' s notice of i n t e n t t o seek increased punishment under t h e habitual criminal s t a t u t e i s ordered stricken. The cause is remanded t o t h e d i s t r i c t c o u r t with d i r e c t i o n s t o resentence t h e defendant f o r t h e crime of attempted burglary with appropriate c r e d i t f o r t i m e a c t u a l l y served according t o law. J u s t i c e Chief J u s t i c e (Specially concurring) I concur i n t h e r e s u l t of t h e foregoing decision but not i n t h e e n t i r e r a t i o n a l e of t h e majority opinion.

June 2, 1977

78a94348-d68c-4452-bb4f-dc14f65594d9

SKAUGE v MOUNTAIN STATES TEL TE

N/A

13371

Montana

Montana Supreme Court

No. 13371 I N T H E SUPREME C O U R T O F T H E STATE O F MONTANA 1977 J O H N A. S K A U G E and LINDA SKAUGE, P l a i n t i f f s and Appellants, M O U N T A I N STATES TELEPHONE AND TELEGRAPH C O M P A N Y and M O N T A N A - D A K O T A UTILITIES C O M P A N Y , Defendants and Respondents, M O N T A N A - D A K O T A UTILITIES C O M P A N Y , Third-Party P l a i n t i f f , JOHN A. S K A U G E and LINDA SKAUGE, and UNIGARD INSURANCE GROUP, Third-Party Defendants. Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l District, Honorable Charles Luedke, Judge p r e s i d i n g . Counsel of Record: For Appellants: Cate, Lynaugh, F i t z g e r a l d & Huss, B i l l i n g s , Montana William F i t z g e r a l d argued, B i l l i n g s , Montana For Respondents : Hooks and Sherlock, Townsend, Montana J e f f r e y Sherlock argued, Townsend, Montana Hughes, Bennett and Cain, Helena, Montana Crowley, Haughey, Hanson, Gallagher and Toole, B i l l i n g s , Montana Submitted: March 18, 1977 Decided : ' y F i l e d : - z m - M r . Chief J u s t i c e Paul G. H a t f i e l d d e l i v e r e d t h e Opinion of t h e Court. O n September 1 0 , 1973 t h e rented home of John and Linda Skauge i n B i l l i n g s , Montana was destroyed by an explosion and f i r e which consumed a l l of t h e i r personal possessions. The Skauges had a f i r e insurance policy with Uniguard Insurance Group (Uniguard), which insured t h e Skauges' personal property t o t h e e x t e n t of $4,000 p l u s $400 f o r i n c i d e n t a l l i v i n g expenses i n case of l o s s . This p o l i c y contained t h e following provision: "Subrogation: This Company may r e q u i r e from t h e insured an assignment of a l l r i g h t of recovery a g a i n s t any p a r t y f o r l o s s t o t h e e x t e n t t h a t payment t h e r e f o r e i s made by t h i s Company. " A f t e r determining t h a t t h e l o s s exceeded t h e policy l i m i t s , Joseph Tobin, a c t i n g a s a d j u s t e r f o r Uniguard, delivered a d r a f t f o r $4,328.98 t o p l a i n t i f f s ' a t t o r n e y , together with a proof of l o s s form t o be signed by Skauges. P l a i n t i f f s ' a t t o r n e y s e n t t h e d r a f t and t h e proof of l o s s t o t h e Skauges. The Skauges then returned t h e proof of l o s s t o t h e i r a t t o r n e y with a r e q u e s t t h a t he r e s e r v e subrogation r i g h t s i n t h e Skauges. The proof of l o s s was subsequently returned t o t h e Skauges with t h e language grant- ing subrogation t o Uniguard s t r u c k o u t , and i n s e r t e d t h e words: "The r i g h t t o sue t o r t - f e a s o r s i s reserved t o t h e insured." The Skauges subsequently signed t h e proof of l o s s and cashed t h e d r a f t . The proof of l o s s was never d e l i v e r e d t o Uniguard. O n February 1 4 , 1974, t h e Skauges f i l e d a complaint a l l e g i n g t h a t Mountain B e l l Telephone and Telegraph Company (Mountain B e l l ) and Montana Dakota U t i l i t i e s Company (MDU) neg- l i g e n t l y caused t h e explosion and f i r e which destroyed t h e i r personal possessions and sought $11,267.32 a s t h e t o t a l amount of t h e i r l o s s . W e note t h a t t h i s a c t i o n was commenced by t h e Skauges through r e t a i n e d counsel, and a t t h i s s t a g e Uniguard was i n no way involved i n t h i s l i t i g a t i o n . M r . Tobin t e s t i f i e d t h a t he learned of t h i s l i t i g a t i o n on June 6 , 1974, and t h e r e a f t e r informed Uniguard. Then on September 27, 1974 MDU f i l e d a t h i r d p a r t y complaint a g a i n s t Skauges and Uniguard, a l l e g i n g Uniguard's r i g h t of subrogation, and requesting t h e d i s t r i c t c o u r t t o a s c e r t a i n who was e n t i t l e d t o any damages f o r which MDU might eventually be held l i a b l e . Thereafter, Uniguard f i r s t appeared i n t h i s l i t i g a t i o n on December 2 4 , 1974 by f i l i n g a motion t o dismiss i n response t o M D U ' s t h i r d p a r t y complaint. The subrogation i s s u e w a s eventually severed from t h e Skauges' o r i g i n a l t o r t a c t i o n and t r i e d separately. The o r i g i n a l t o r t a c t i o n w a s continued, pending t h e outcome of t h e subrogation issue. The d i s t r i c t c o u r t , s i t t i n g without a jury, made a finding of f a c t t h a t Joseph Tobin and p l a i n t i f f s ' a t t o r n e y had not come t o an a c t u a l meeting of t h e minds as t o t h e r i g h t of subrogation. Consequently, t h e d i s t r i c t c o u r t concluded t h a t Uniguard was e n t i t l e d t o be subrogated t o t h e e x t e n t of its payment t o Skauges, t h a t such r i g h t was not waived by Uniguard, nor w a s it subject t o any l i m i t a t i o n i n amount. Neither p a r t y c o n t e s t s t h e d i s t r i c t c o u r t ' s findings of f a c t , however t h e Skauges o b j e c t t o t h e above mentioned conclusion of law. The Skauges have r a i s e d t h r e e i s s u e s , and have pled them i n t h e a l t e r n a t i v e : 1) Whether o r not Uniguard is e n t i t l e d t o subrogation absent a w r i t t e n assignment by t h e Skauges? 2) I f so, i s Uniguard's subrogation limited t o t h e portion of t h e Skauges' recovery from MDU and Mountain Bell which exceeds the sum of t h e Skauges' t o t a l l o s s and t h e i r c o s t s of recovery, including a t t o r n e y ' s fees? and 3 ) Did Uniguard waive any r i g h t of subrogation it may have had by remaining i n a c t i v e i n t h e Skauge's lawsuit? Subrogation i s a device of equity which i s designed t o compel t h e u l t i m a t e payment of a debt by t h e one who i n j u s t i c e , equity and good conscience should pay it. Bower v. Tebbs, 132 Mont. 146, 314 P.2d 731. A property i n s u r e r who has indemnified t h e insured is u s u a l l y subrogated t o any r i g h t s t h e insured may have a g a i n s t t h e t h i r d p a r t y who i s responsible f o r t h e l o s s . The theory behind t h i s p r i n c i p l e i s t h a t absent repayment of t h e i n s u r e r t h e insured would be u n j u s t l y enriched by v i r t u e of re- covery from both t h e i n s u r e r and t h e wrongdoer, o r i n absence of such double recovery by t h e insured, t h e t h i r d p a r t y would go f r e e d e s p i t e h i s l e g a l o b l i g a t i o n i n connection with l o s s . 16 Couch on Insurance 2d, Subrogation S61.18; Standard A c c . I n s . Co. v. Pellecchia, 15 N . J . 162, 1 0 4 A.2d 288; F i d e l i t y & C a s . Co. of N.Y. v. F i r s t Nat. Bank i n F t . L e e , 397 F.Supp. 587. Subrogation i s c l a s s i f i e d a s l e g a l o r conventional; l e g a l subrogation a r i s e s by operation of law, upon t h e f a c t of payment made by t h e i n s u r e r ; whereas conventional subrogation a r i s e s by t h e c o n t r a c t of t h e p a r t i e s . 16 Couch on Insurance 2d, Subrogation S61.2; Kroeker v. S t a t e Farm Mutual Automobile Ins. Co., (Mo.App. 1971) 466 S.W.2d 105. Furthermore, t h e p a r t i e s may by agreement waive o r l i m i t subrogation. F i r e Ass'n of Philadelphia v. Schellenger, 84 N.J.E. 464, 94 A. 615; Home Insurance Co. v. Hartshorn, 128 M i s s . 282, 91 So. 1; Merchants F i r e Assur. Corporation of New York v. H a m i l - t o n Co., 76 R.I. 294, 69 A.2d 551; Hardware Mut. I n s . Co. v. Dunwoody, 194 F.2d 666. The Skauges have c i t e d t h e s e l a t t e r four c a s e s and have contended t h a t t h e insurance policy made Uniguard's r i g h t of subrogation conditional upon a w r i t t e n assignment from t h e Skauges. However, t h e cases c i t e d by t h e Skauges a r e e a s i l y d i s t i n g u i s h e d by a comparison of t h e p o l i c y provisions involved. I n each of t h e f o u r c a s e s c i t e d above t h e policy provision i n question s t a t e d : "Subrogation. I f t h i s company s h a l l c l a i m t h a t t h e f i r e w a s caused by t h e a c t o r neglect of any person o r corporation, t h i s company s h a l l , on payment of t h e l o s s be subrogated t o t h e e x t e n t of such payment t o a l l r i g h t of recovery by t h e insured f o r t h e l o s s r e s u l t i n g therefrom, and such r i g h t s h a l l be assigned t o t h i s company by t h e insured on receiving such payment." (Emphasis supplied. ) O n t h e o t h e r hand, t h e policy provision i n t h e present case s t a t e s : "This Company may r e q u i r e from t h e insured an assignment of r i g h t of recovery a g a i n s t a n y p a r t y f o r l o s s t o t h e e x t e n t t h a t payment t h e r e f o r e - - is made by t h i s Company." (Emphasis supplied.) This provision contains no c o n d i t i o n a l language, nor does it s p e c i f i c a l l y r e f e r t o "subrogation" a s does t h e policy language i n t h e o t h e r cases. I n a d d i t i o n t o t h i s t h e r e e x i s t s t h e l e g a l d i s t i n c t i o n between an "assignment" and "subrogation". A s s t a t e d i n 16 Couch on Insurance 2d, Subrogation, S61.92, supra: "Subrogation i s t h e s u b s t i t u t i o n of another person i n t h e place of t h e c r e d i t o r , so t h a t t h e person s u b s t i t u t e d w i l l succeed t o t h e r i g h t s of t h e c r e d i t o r i n r e l a t i o n t o t h e d e b t o r claim, and is an a c t of t h e l a w growing o u t of t h e r e l a t i o n of t h e p a r t i e s t o t h e o r i g i n a l c o n t r a c t of insurance, and t h e n a t u r a l j u s t i c e o r e q u i t i e s a r i s i n g from t h e f a c t t h a t t h e i n s u r e r has paid t h e insured, r a t h e r than a r i g h t depending upon t h e c o n t r a c t . O n t h e o t h e r hand, an assignment of a r i g h t o r c l a i m i s t h e a c t of t h e p a r t i e s t o t h e assignment, dependent upon a c t u a l i n t e n t i o n , and n e c e s s a r i l y contemplating t h e continued e x i s t e n c e of t h e d e b t o r claim, t h e whole of which i s assigned. "Subrogation presupposes an a c t u a l payment and s a t i s f a c t i o n of a d e b t o r claim t o which t h e p a r t y paying i s subrogated, although t h e remedy is kept a l i v e i n equity f o r t h e b e n e f i t of t h e payor, while t h e assignment n e c e s s a r i l y contemplates continued e x i s t e n c e of t h e d e b t o r claim assigned." A f u r t h e r d i s t i n c t i o n i s found i n Kroeker v. S t a t e Farm Mutual Automobile I n s . Co., supra, p. 110: "When t h e r e i s a n assignment of an e n t i r e claim t h e r e i s a complete divestment of a l l r i g h t s from t h e assignor and a v e s t i n g of those same r i g h t s i n t h e assignee. I n t h e case of subrogation, however, only an e q u i t a b l e r i g h t passes t o t h e subrogee and t h e l e g a l t i t l e t o t h e claim i s never removed from t h e subrogor, but remains with him throughout." Therefore, w e conclude t h a t an express assignment of t h e c l a i m t o Uniguard was unnecessary, s i n c e l e g a l subrogation a r o s e from t h e f a c t of payment, and t h i s w a s n o t waived o r made conditional by agreement of t h e p a r t i e s . A s f o r t h e second i s s u e , t h e Skauges contend t h a t when t h e payment of p o l i c y l i m i t s i s less than t h e a c t u a l l o s s , t h e i n s u r e r cannot a s s e r t a r i g h t of subrogation u n t i l t h e insured has f u l l y recovered h i s l o s s , p l u s t h e c o s t s of recovery, in- cluding a t t o r n e y ' s f e e s . Uniguard argues t h a t such a r u l e i s a p p l i c a b l e , i f a t a l l , when t h e i n s u r e r is seeking reimburse- ment from an insured, who has recovered h i s l o s s from t h e t o r t - f e a s o r , and not when t h e i n s u r e r seeks t o recover from t h e t o r t f e a s o r . There i s a u t h o r i t y f o r t h e r u l e r e l i e d upon by t h e Skauges, with some j u r i s d i c t i o n s upholding Uniguard's p o s i t i o n t h a t t h e r u l e only a p p l i e s when t h e insured is s o l e l y responsible f o r t h e recovery from t h e t o r t f e a s o r , whereas o t h e r j u r i s d i c t i o n s do n o t make t h i s d i s t i n c t i o n . A n example of t h e f i r s t form of t h e r u l e is found i n United Services Automobile Association v. H i l l s , 172 Neb. 128, 109 N.W.2d 174, 2 ALR3d 1422, 1428: " ' * * * Where t h e assured, a s i n case of p a r t i a l insurance, s u s t a i n s a l o s s , i n excess of t h e reimbursement o r compensation by t h e underwriter, he has an undoubted r i g h t t o have it s a t i s f i e d by a c t i o n a g a i n s t t h e wrong-doer. But i f , by such a c t i o n , t h e r e comes i n t o h i s hands, any sum f o r which, i n e q u i t y and good conscience, he ought t o account t o t h e under- w r i t e r , reimbursement w i l l , t o t h a t e x t e n t , be compelled i n an a c t i o n by t h e latter, based on h i s r i g h t i n equity t o subrogation. But t h e assured w i l l not, i n t h e forum of conscience, be required t o account f o r more than t h e surplus, which may remain i n h i s hands, a f t e r s a t i s f y i n g h i s own excess of l o s s i n f u l l , and h i s reasonable expenses incurred i n its recovery; unless t h e underwriter s h a l l , on n o t i c e and opportunity given, have contributed t o , and made common cause with him, i n t h e prosecution.'" See a l s o Krause v. S t a t e Farm Mutual Automobile Ins. Co., 184 Neb. 588, 169 N.W.2d 601; S t . Paul F i r e & Marine Ins. Co. v. W. P. Rose Supply Co., 19 N.C.App. 302, 198 S.E.2d 482. How- ever, o t h e r j u r i s d i c t i o n s have not l i m i t e d t h i s r u l e t o re- covery by t h e i n s u r e r a g a i n s t t h e insured, as evidenced by 67 N.J.Super. 475, Providence Washington Ins. Co. v. Hogges,/l71 A.2d 120, 124: " * * * I n t h e absence of express t e r m s i n t h e c o n t r a c t t o t h e contrary, he (insured) must be made o r kept whole before t h e i n s u r e r may recover anything from him o r from a t h i r d p a r t y under its r i g h t of subrogation." (Emphasis supplied.) Utah a l s o agrees with t h i s view. Lyon v. Hartford Accident and Indemnity Company, 25 Utah28 31(, 480 P.2d 739; Transamerica Insurance Company v. Barnes, 29 Utah2d 1 0 1 , 505 P.2d 783. The b a s i c r a t i o n a l e f o r t h i s r u l e , i n e i t h e r of t h e two c a t e g o r i e s , i s b e s t s t a t e d i n S t . Paul F i r e & Marine Ins. Co. v. W. P. Rose Supply Co., supra a t 484: " * * * When t h e sum recovered by t h e Insured from t h e Tort-feasor is less than t h e t o t a l l o s s and t h u s e i t h e r t h e Insured o r t h e I n s u r e r must t o some e x t e n t go unpaid, t h e l o s s should be borne by t h e i n s u r e r f o r t h a t is a r i s k t h e insured has paid it t o assume." (Emphasis supplied.) Again w e note, t h e d o c t r i n e of l e g a l subrogation i s applied t o subserve t h e ends of j u s t i c e and t o do e q u i t y i n t h e p a r t i c u l a r c a s e under consideration. Bower v. Tebbs, supra. For t h e s e reasons we adopt t h e view t h a t when t h e insured has sustained a l o s s i n excess of t h e reimbursement by t h e i n s u r e r , t h e insured i s e n t i t l e d t o be made whole f o r h i s e n t i r e l o s s and any c o s t s of recovery, including a t t o r n e y ' s f e e s , before t h e i n s u r e r can a s s e r t i t s r i g h t of l e g a l subrogation a g a i n s t t h e insured o r t h e t o r t f e a s o r . Examining t h e f a c t s of t h i s case, we f i n d t h i s r u l e should be applied t o t h e c l a i m of t h e Skauges. Uniguard d i d n o t volun- t a r i l y seek t o a s s i s t t h e Skauges i n t h e i r s u i t , a s a l l e g e d by Uniguard. The d i s t r i c t c o u r t f i l e r e v e a l s t h a t t h e Skauges f i l e d t h e complaint a g a i n s t MDU and Mountain B e l l on February 1 4 , 1974. M r . Tobin t e s t i f i e d t h a t he knew of t h i s l i t i g a t i o n a s e a r l y a s June 6 , 1974, and t h e r e a f t e r informed Uniguard. However, Uni- guard d i d not appear i n t h e l i t i g a t i o n u n t i l December 2 4 , 1974, and t h i s w a s done i n v o l u n t a r i l y i n response t o M D U ' s t h i r d p a r t y complaint. A t t h i s s t a g e , discovery and i n v e s t i g a t i o n w a s s u b s t a n t i a l l y completed by t h e Skauges through r e t a i n e d counsel. Although Uniguard a l l e g e d a t o r a l argument t h a t Skauges w e r e r e l u c t a n t t o allow them t o join i n t h e s u i t , Uniguard made no attempt t o intervene pursuant t o Rule 2 4 , M.R.Civ.P. It appears t h a t Uniguard would have contentedly remained on t h e s i d e l i n e s u n t i l t h e conclusion of t h i s l i t i g a t i o n i f not forced i n t o t h e s u i t by MDU. W e note, a l s o , t h a t i n applying t h i s r u l e t h e Skauges w i l l not be u n j u s t l y enriched by v i r t u e of recovery from Uniguard and t h e t o r t f e a s o r s , nor would t h e t o r t f e a s o r s be r e l i e v e d of t h e i r l e g a l o b l i g a t i o n f o r t h e l o s s , i f found l i a b l e i n t h e d i s - t r i c t c o u r t . Since t h e t h i r d i s s u e of waiver by Uniguard has been @re- sented i n t h e a l t e r n a t i v e , it was not f u l l y l i t i g a t e d i n t h e d i s t r i c t c o u r t . W e have held t h a t t h e Skauges be made whole be- f o r e Uniguard may a s s e r t i t s l e g a l subrogation and we d e c l i n e t o address t h a t i s s u e . This cause is reversed and remanded t o t h e d i s t r i c t c o u r t with i n s t r u c t i o n s t o e n t e r Chief J u s t i c e W e concur: J u s t i c e s - 8 -

May 31, 1977

fff0a645-1d71-4fc4-8922-004b1a8ce295

STATE EX REL STOWE v BOARD OF ADMI

N/A

13274

Montana

Montana Supreme Court

N o . 1 3 2 7 4 I N THE SUPREME COURT OF THE STATE O F MONTANA 1 9 7 7 STATE OF MONTANA ex rel. DANIEL J. STCPJE, P e t i t i o n e r , BOARD O F ADNINISTRATION OF THE P U B L I C EMPLOYEES RETIREMENT D I V I S I O N AND FRED BARRETT, W.M. COCALES, FRED L . H I L L , JOHN L . P R E B I L , and KEVIN J. SHANNON, M e m b e r s thereof, R e s p o n d e n t s . A p p e a l f r o m : D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , H o n o r a b l e Peter G. M e l o y , Judge p r e s i d i n g . C o u n s e l of R e c o r d : For I ? - e t i t i o n e r : H u b e r t J. M a s s m a n argued and Joseph M a s s m a n appeared, H e l e n a , M o n t a n a For R e s p o n d e n t s : S t u a r t K e l l n e r , Special A s s i s t a n t A t t o r n e y , argued, H e l e n a , M o n t a n a M i c h a e l J. H u g h e s , H e l e n a , M o n t a n a S u b m i t t e d : January 1 7 , 1 9 7 7 D e c i d e d : M-AY 1 1 1977 F i l e d : HA^ 1 $gli M r . J u s t i c e Daniel J. Shea delivered the Opinion of the Court. Daniel Stowe, a member of the Montana Public Employees' Retirement System (PEKS), appeals from a judgment of the d i s t r i c t court, Lewis and Clark County, dismissing h i s p e t i t i o n f o r a w r i t of mandate directed against the board of administration of PEKS . The d i s t r i c t court held t h a t Stowe had a remedy of j u d i c i a l review under the Montana Administrative Procedure Act (MAPA) but l o s t it by not petitioning f o r review within the s t a t u t o r y 30 days. Although not required t o do so i n l i g h t of its ruling on the motion t o dismiss, the d i s t r i c t court a l s o ruled on the merits of the claim. The court held t h a t when an employee under PEKS i s readmitted t o PERS f o r the purpose of obtaining d i s a b i l i t y benefits, the PERS board has the r i g h t t o determine the date when the benefits s h a l l commence. Stowe appeals from both rulings. O n October 25, 1972, Stowe f e l l down a f l i g h t of s t a i r s i n the course of h i s work a s an employee of the c i t y of Helena. His i n j u r i e s rendered him t o t a l l y and permanently disabled. After receiving c r e d i t f o r accrued vacation time and sick leave, Stowe's employment was terminated on November 13, 1972. O n November 20, 1972, Stowe was given an application f o r a refund of h i s contribu- tions t o the PERS during h i s employment by the c i t y of Helena. H e was not t o l d , and he did not know, he had a r i g h t t o apply f o r a d i s a b i l i t y retirement allowance. Stowe signed the application f o r a refund of h i s PERS contributions and upon receiving h i s contributions of $889.77, he l o s t a l l membership benefits under PEKS. Section 68-1603, R.C.M. 1947, of the Public Employees' Ketirement Act provides: " I f any part of a member's accumulated normal contributions a r e refunded pursuant t o section 68- 1905, he ceases t o be a member and a l l membership service t o h i s c r e d i t i s canceled. Any person who i s r e t i r e d . ceases t o be a member. 11 Seztion 68-1905, R.C.M. 1947, permits a refund of contributions, i f a member's service i s discontinued because of d i s a b i l i t y . In February 1975, Stowe applied t o the PERS board f o r rein- statement i n the PERS and submitted a claim f o r d i s a b i l i t y retirement allowance. The PERS board approved Stowe's r e i n s t a t e - ment and granted h i s d i s a b i l i t y claim on the condition t h a t Stowe redeposit the amount of h i s PERS contributions withdrawn, together with accrued i n t e r e s t on t h i s amount. Stowe deposited t h i s money on March 28, 1975 and the PERS board determined h i s d i s a b i l i t y benefits would s t a r t from the-date of deposit. Upon making h i s deposit however, Stowe simultaneously requested t h a t benefit pay- ments r e l a t e back t o the date of the injury (October 25, 1972) and requested a hearing a f t e r he f i l e d the necessary information and documentation. I n support of h i s claim i n early April 1975, Stowe submitted t o the PERS board a p e t i t i o n and several a f f i d a v i t s and again s p e c i f i c a l l y requested an opportunity t o appear before the PERS board should it have any questions r e l a t i n g t o h i s claim. The PERS board a t no time indicated it had any question o r t h a t it was disposed t o a c t adversely t o Stowe's p e t i t i o n f o r benefits from the date of injury. Under these circumstances one could conclude the PERS board had decided t o a c t favorably on the p e t i t i o n , otherwise it would have given Stowe a hearing. Without \ I , granting a hearing d a t e , the PERS board met on May 9, 1975, and ruled against Stowets,petition. He was informed of i t s decision by l e t t e r dated May 27, 1975. Stowe commenced action on July 1 7 , 1975, f o r a w r i t of man- damus t o compel the PERS board t o s t a r t payment of d i s a b i l i t y payments from the date of injury. F i r s t we consider whether the PERS board had discretion t o s t a r t stowe's d i s a b i l i t y retirement allowance on March 28, 1975, the date of h i s reinstatement a s a member of the PERS. Section 68-2102, R.C.M. 1947, s t a t e s i n pertinent p a r t : "* * * The retirement allowance payable t o a member who has become disabled s h a l l commence on the day following t h e member's l a s t day of membership service." (Emphasis added.) Stowe claims t h i s s t a t u t e deprives the PERS board of any dis- cretion. The board argues t h i s s t a t u t e does not apply t o a dis- abled person who has been reinstated a f t e r previously terminating h i s membership i n the PERS under section 68-1603. The PERS board argues there a r e no statutory provisions which s p e c i f i c a l l y allow a disabled person t o be reinstated t o membership under PERS, without simultaneously being readmitted t o the work force a s an employee. Since Stowe was not readmitted t o the work force, but only t o membership i n PERS, it argues the PERS board accordingly has broad discretion a s t o when h i s benefits a r e t o commence. The board r e l i e s on two s t a t u t e s , section 68-1601(2) and section 68-1803 (I), R.C.M. 1947. Section 68-1601(2), r e f e r s t o re-entering employment and provides i n pertinent part: "Every employee who re-enters service s h a l l become a member unless he has had an o r i g i n a l election of exemption from membership and h i s service was not interrupted by a break of more than one (1) month. * * *" (Emphasis added.) Section 68-1803(1) covers the authority of PERS and provides i n pertinent part: "The board of administration may establish such rules and regulations as it deems sroper for the administration and operation of the retirement system and enforcement of this act, subject to its limitation. The board shall determine who are employees within the . meaning of this act. The board shall be the sole authority under this act as to the conditions under which persons may become members and receive benefits under the retirement system. The board shall determine and may modify allowances for service and disability under this act. * * *I1 From these statutes the PERS board argues that since section 68-1601(2) is. the only specific reference in the act to rein- statement.~£ any person, that it necessarily follows that section 68-2102 applies only to reinstated members who have re-entered service as employees, Further, since Stowe did not re-enter as an employee, but as a disabled person, the PERS board then is free to exercise its discretion in determining when to commence his disability retirement allowance. We do not agree. Even assuming that under section 68-1803(1) the PERS board may determine in its discretion whether or not to reinstate disabled persons, it does not necessarily follow that it may also determine when to commence disability retirement allowances. The two acts are distinct. The act of allowing a disabled person back into the PERS perhaps may be discretionary but the time when the dis- ability retirement allowance starts to run arises by operation of statute. The PERS board falsely concludes that section 68-2102 applies only to reinstated members who have re-entered service as employees. Section 68-2102 does not distinguish between members who have been reinstated pursuant to section 68-1601, and members who have been reinstated in the board's discretion under section 68-1803(1). It refers only to "a member who has become disabled". Further, section 68-1906, R . C . M . 1947, provides in part: "Except a s otherwise provided i n t h i s section, any person who again becomes a member subsequent t o the refund of h i s accumulated normal contributions a f t e r a termination of previous membership i s con- sidered a new member without c r e d i t f o r any previous membership service, and he may r e i n s t a t e t h a t membership service by redepositing the sum of the accumulated normal contributions which were refunded t o him a t the l a s t termination of h i s membership plus the i n t e r e s t which would have been credited t o h i s account had the refund not taken place. I f he makes t h i s redeposit, h i s membership s h a l l be the same a s i f unbroken by such l a s t termina- t i o n , * * *" (Emphasis added.) Reading the s t a t u t e s together it i s c l e a r the words i n section 68-2102 encompass a l l members, including disabled persons who have been reinstated. This is consistent with the l e g i s l a t i v e i n t e n t a s expressed i n section 68-1501, R.C.M. 1947, t o provide a means of providing replacements f o r incapacitated employees in the public service without hardship o r prejudice t o the incapa- c i t a t e d employee. Section 68-2102 leaves no room f o r t h e exercise of discretion. Stowe i s e n t i t l e d t o a d i s a b i l i t y retirement allowance commencing on the day following h i s l a s t day of membership service. W e note t h i s s i t u a t i o n would never have occurred i f Stowe had been f u l l y informed of h i s options a t the time of h i s accident. H e could then have made a knowing election. Instead, he was handed an application f o r a return without notice of h i s r i g h t co apply f o r a d i s a b i l i t y retirement allowance, thereby greasing the wheels f o r h i s l o s s of r i g h t s under PERS. Such practice works a complete f r u s t r a t i o n of the l e g i s l a t i v e w i l l and serves only t o undermine confidence i n the administrative process. The PERS board a l s o argues t h a t Stowe l o s t any r i g h t t o h i s claim by not appealing t o the d i s t r i c t court within the statutory 30 days provided i n the MAPA, section 82-4216(2), R,C.M. 1947. There is no question t h a t Stowe did not f i l e an action within the s t a t u t o r y time l i m i t s , but under the circumstances here, we hold the PERS board i s estopped from claiming Stowe had a duty t o use M A P A a s h i s sole remedy. To hold otherwise would be t o hold Stowe t o h i s remedy under M A P A , under circumstances where the PERS board a t no time indicated it was bound by and acting pursuant t o the M A P A . Such a holding would be manifestly unfair. When Stowe f i r s t applied f o r d i s a b i l i t y benefits s t a r t i n g on the day of h i s injury, he asked f o r a hearing should the PERS board have any questions concerning h i s position. When Stowe f i l e d h i s p e t i t i o n along with supporting a f f i d a v i t s and papers, he again asked f o r a hearing should there be any questions. The PERS board did not reply t o e i t h e r request and proceeded t o a determination of h i s r i g h t s without a hearing. Notice and hearing a r e specifically.provided'for under section 8& a-4209, R.C.M.1947. It s t a t e s i n relevant part: "(1) I n a contested case, a l l p a r t i e s s h a l l be afforded an opportunity f o r hearing a f t e r reasonable notice. "(2) The notice s h a l l include: "(a) A statement of the time, place and nature of hearing. "(b) A statement of the l e g a l authority and jurisdiction under which the hearing is t o be held. "(c) A reference t o the p a r t i c u l a r sections of the s t a t u t e s and rules involved. "(d) A short and p l a i n statement of the matters asserted. * * * " ( 3 ) Opportunity s h a l l be afforded a l l p a r t i e s t o respond and present evidence and argument on a l l issues involved . This statute also contains detailed requirements for the record in a contested case and provides for a stenographic record of the proceedings. The PERS board did not even attempt t o comply with t h i s statute. While the proceedings i n t h i s case were a t best informal, the PERS board argues t h i s was a contested proceeding within the meaning of section 82-4216 which provides for judicial review of a "final decision'.'. It: next argues the l e t t e r of M a y 27, 1975 informing Stowe of i t s decision, should be treated for purposes of the M A P A as a "final decision". While there i s l i t t l e doubt that it was a f i n a l decision as f a r as the PERS board was concerned, it did not comply with the requirements of section 82-4213, R.C.M. 1947, as t o the contents of a f i n a l order. That section provides i n pertinent part: "(1) A f i n a l decision or order adverse t o a party i n a contested case shall be in writing or stated i n the record. A f i n a l decision shall include findings of fact and conclusions of law, separately stated. Findings of f a c t , i f set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. * * * Parties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the decision o r or- der s h a l l be delivered or mailed forthwith to each party and t o h i s attorney of record." The l e t t e r , purporting t o be the f i n a l order o r decision, contained no findings of f a c t , just the f i n a l conclusion that the PERS board had ruled against Stowe. It i s inconceivable under these circumstances that the PERS board would seek t o hold Stowe to h i s remedy under the Montana Administrative Procedures Act while there was not even token com- pliance by the P E R S board. L t is c l e a r a w r i t of mandate was a proper remedy i n t h i s case since the PERS board, once it agreed t o r e i n s t a t e Stowe a s a member of PERS was required by s t a t u t e t o s t a r t h i s retirement d i s a b i l i t y from t h e date of the injury. Furthermore, the PERS board was estopped t o claim stowe's sole remedy was under the MAPA and t h a t t h i s remedy was not timely exercised. The judgment of the d i s t r i c t court i s reversed. Stowe i s e n t i t l e d t o d i s a b i l i t y retirement benefits from the date of injury. Attorney fees i n the amount of $900.00 a r e awarded on t h i s appeal. The cause i s remanded t o the d i s t r i c t court t o f i x and assess artorney fees f o r proceedings had i n d i s t r i c t court. W e Concur: / 1-7 '-' C- */ ' k . / f , ~ i ~ ? , ~ & L P Chief J u s t i c e I 1 Justices. ---.

May 11, 1977

1c50241e-eb05-4d04-a482-f58567c00a21

CICINIA v CICINIA

N/A

13393

Montana

Montana Supreme Court

No. 13393 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 ELEANOR H . CICINIA, Plaintiff and Respondent, GAETANO T. CICINIA, Defendant and Appellant. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Keller, Judge presiding. Counsel of Record: For Appellant: Moore and Lyrnpus, Kalispell, Montana James D. Moore argued, Kalispell, Montana For Respondent: Warden, Walterskirchen & Christiansen, Kalispell, Montana Gary R. Christiansen argued, Kalispell, Montana Filed: Submitted: March 14, 1977 Decided : JUR 2 e 4977 M r . Jusrice Gene 3 . Daly delivered the Opinion of the Court. The d i s t r i c t court, Flathead County, s i t t i n g without a jury, Hon. Robert S. Keller, D i s t r i c t Judge presiding, granted M r k T i FF L i n an action sac e. summary judgment t o U - g alimony provisions of a foreign divorce decree. Eleanor Cicinia obtained a default divorce decree on grounds of desertion, incorporating a voluntary property s e t t l e - ment agreement p a r t of which gave her $75 per week, payable each Monday f o r the balance of her l i f e , unless she remarried. This amount was t o include child support and minor medical care u n t i l the children reached majority. The p a r t i e s were married i n 1940 and the decree n i s i was dated February 25, 1965, i n the s t a t e of N e w Jersey. Defendant remarried and adopted the children of h i s present wife and moved t o Kalispell, Montana i n 1973. Defendant operates a business e n t i t l e d "Northwest Sports, Inc.". Defendant defaulted i n h i s alimony payments. O n June 27, 1974, p l a i n t i f f brought an action i n N e w Jersey t o determine arrearage, increase alimony, and determine attorney fees. De- fendant f i l e d two a f f i d a v i t s i n h i s behalf i n addition t o a deposition. He was represented a t the hearing by a N e w Jersey law firm but did not appear i n person. The New Jersey court on April 25, 1975 granted judgment i n the sum of $3,995. P l a i n t i f f ' s prayer f o r additional alimony was denied. O n June 23, 1975, the N e w Jersey court awarded attorney fees i n the amount of $2,000 and $196.80 i n costs. The N e w Jersey judgment was not appealed i n N e w Jersey. The present action was f i l e d i n Montana t o enforce t h e N e w Jersey judgment on September 15, 1975. Defendant contends the judgment cannot be enforced i n Montana a s it contravenes the constitutional and statutory r i g h t s of defendant and i s against public policy of the s t a t e of Montana. Defendant a l s o p e t i t i o n s the Montana court t o modify the N e w Jersey decree prospectively and retroactively. I n t h i s regard, defendant speaks t o the modification of the "decree n i s i " of February 25, 1965, yet the record indicated t h i s decree was made f i n a l May 26, 1965. Hon. Robert S. Keller, d i s t r i c t judge, entered summary judg- ment May 5, 1976, under Rule 56, M.R.Civ.P., a f t e r b r i e f s were submitted and o r a l argument heard, f o r p l a i n t i f f on the N e w Jersey judgment with the memo: "The Defendant r a i s e s no factual issues. The answer t o t h e complaint, consists of conclusions, which r a i s e issues of law, and a r e r e s adjudicata. "The 'counter-petition' t o the complaint i s something t h i s Court does not understand." Defendant appeals from t h e summary judgment of the d i s t r i c t court and presents these issues t o t h i s Court f o r review: 1. Can summary judgment be entered on a foreign decree which enforcement of contravenes public policy o r laws of Montana? 2. Does f u l l f a i t h and c r e d i t compel enforcement of a foreign decree t h a t lacks f i n a l i t y i n N e w Jersey? 4. Can a decree of divorce issued i n another s t a t e be modified i n Montana? Defendant appeared by counsel and a f f i d a v i t and deposition i n defense of h i s position a t the court hearing i n N e w Jersey, which denied him r e l i e f on April 25, 1975. He did not challenge the f i n a l i t y of t h a t c o u r t ' s judgment on which the hearing was brought o r challenge the c o u r t ' s j u r i s d i c t i o n , nor did he appeal from t h a t court' s judgment. W e note here t h a t a t a l l times pertinent hereto, defendant has been vigorously represented by counsel. The N e w Jersey judgments were f i n a l judgments rendered by a court which had proper jurisdiction only a f t e r an adversary proceeding. The Montana action merely seeks a judgment based upon the f i n a l judgments of the N e w Jersey court. The doctrines of r e s judicata and c o l l a t e r a l estoppel bar the r e l i t i g a t i o n of the matters determined by the N e w Jersey court. The doctrine of f u l l f a i t h and c r e d i t allows the enforcement of the judgment. A r t . I V , Section '1, United States Constitution; Section 93- 1001-20, R.C.M. 1947; 47 Am.Jur.2d, Judgments $ 5 1226,1227,1230. The t r i a l court correctly s t a t e d t h a t the pleadings of defendant r a i s e no f a c t issues but ultimate issues of law which a r e r e s adjudicata. r - 2 Judgment of the t r i a l court i s affirmed. ,, /.' " J u s t i c e 4 W_e_ Concur : r ' 1 ,.._4- ' . * Chief J u s t i c e A

June 22, 1977

fc94335b-fbbf-4dc1-be11-ebf3dbf761f6

STATE v GRENFELL

N/A

13165

Montana

Montana Supreme Court

No. 13165 IN THE SUPREME COURT OF THE STATE OF MONTANA THE STATE OF MONTANA, Plaintiff and Respondent, GREGORY ALLEN GRENFELL, Defendant and Appellant. Appeal from: District Court of the Second Judicial District Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: J. Brian Tierney argued, Butte, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Gary Winston argued, County Attorney, Butte, Montana Nadine Scott argued, Butte, Montana Submitted: January 12, 1 9 7 7 Decided : Filed: - M Y 1 1 . 1977 M r . :Justice Daniel J. Shea delivered the Opinion of the Court. Defendant Gregory Grenfell was convicted on one d four counts of s e l l i n g dangerous drugs i n violation of section 54-132, R.C.M. 1947, i n the d i s t r i c t court, S i l v e r B o w County. He was sentenced t o 10 years i n prison. Defendant r a i s e s several issues i n t h i s appeal but only the issue of entrapment i s necessary f o r the decision i n t h i s case. He claims there was entrapment a s a matter of law. W e agree. The charges against Grenfell arose i n Butte, Montana, from four s a l e s of drugs t o B i l l Verrall, an informer f o r the Silver Bow County s h e r i f f ' s department, on January 26, 27, 28, and 29, 1975. Grenfell and Verrall met i n the f a l l of 1974. Thereafter Verrall and h i s wife cultivated a close friendship with Grenfell and h i s wife. The f a c t s show Verrall was a f r u s t r a t e d and u n f u l f i l l e d policeman having d r i f t e d from job t o job over a period of several years. He s t a r t e d a s a Montana S t a t e Prison guard but was t e r - minated a f t e r s i x months. H i s employment with the Butte police force i n 1971 was terminated before h i s probationary ( s i x month) period expired. Verrall then went t o the s t a t e of Washington and there worked f o r the King County highway p a t r o l a s a p r i v a t e security guard, but l e f t a f t e r only one week. In 1973 he was a police o f f i c e r f o r Boulder, Montana, but l e f t a f t e r only four months employment, during which he was o f f i c i a l l y charged with assault while on duty. Verrall then d r i f t e d back and f o r t h from Montana t o the s t a t e of Washington, not having any steady job and drawing periodic welfare assistance f o r himself and family. erra all's interest i n being a deputy sheriff for Silver B o w County dates back t o 1969 when he asked the then sheriff for a job a s a deputy but was refused. In 1974, when a new sheriff was elected, but before he took office, Verrall approached him and told him that he would buy drugs for him. A t the time of the incidents involved i n t h i s case, Verrall had f i l e d an application t o be a deputy sheriff for Silver B o w County, and although he had not been o f f i c i a l l y hired, he was working as a drug purchaser for the sheriff ' s of fice. O n January 26, 1975, Verrall called Grenfell and asked him for marijuana. Grenfell t e s t i f i e d he suggested beer instead, but Verrall said he was "uptight" and needed marijuana. Grenfell went t o a local tavern and inquired about two men he had worked with and knew t o be involved with drugs. After learning they lived i n a t r a i l e r court i n the "Country Club area", he obtained some hashish and gave it t o Verrall. Verrall l a t e r delivered the hashish t o the sheriff. This transaction comprised count one of the Information, on which Grenfell was acquitted. O n January 27, 1975, Verrall called Grenfell's home many times. Grenfell a t f i r s t told h i s wife t o t e l l Verrall he was not a t home. Later, Grenfell returned the c a l l . Verrall told him the hashish gdve him a good night's sleep and he had a friend who wanted some LSD. C-renfell said he did not know where t o get LSD, but he would talk t o the men who gave him the hashish. H e obtained $20 from Verrall and bought $10 worth of L S D from h i s suppliers. Grenfell gave the L S D and the $10 change ,.,tot. Verrall. Verrall delivered the L S D t o the sheriff. These events were the basis for count two of the Information, on which Grenfell was acquitted. O n January 28, 1975, Verrall drove t o Grenfell's home and asked Grenfell t o work on h i s automobile. A t that time a "partner- ship" was discussed whereby they would purchase a large quantity of L S D t o s e l l to Verrall's friend a t a p r o f i t t o finance a t r i p t o Utah to obtain work. (Verrall promised Grenfell he could get him a job i n Utah with a mining company and had even helped him f i l l out the application forms). Grenfell then went t o h i s suppliers i n the t r a i l e r home t o ask the price of L S D i f bought i n bulk. H e obtained some hashish and amphetamines which he l a t e r gave t o Verrall. The "big buy1' was s e t for January 29, 1975. These events comprised count three of the Information, on which Grenfell was acquitted. After Verrall l e f t , Grenfell returned t o the suppliers and obtained a small amount oflhashish for h i s own use. The ultimate objective of the s h e r i f f ' s office was t o catch the suppliers to Grenfell, although t h i s was never accomplished, due t o a failure of the sheriff's office t o follow Grenfell t o the t r a i l e r home where the suppliers lived. O n the morning of January 29, 1975, Grenfell, knowing t h i s was the day of the "big buy", was nervous and reluctant t o go through with the purchase. H e t r i e d t o smoke the hashish he had purchased the night before, but it hurt h i s throat. Verrall t r i e d t o calm him down during a telephone conversation by assuring Grenfell everything would be a l l right and t e l l i n g him they needed the money for the t r i p to Utah. Verrall arrived a t Grenfell's home that afternoon with $900. The b i l l s had been photocopied and the s e r i a l numbers recorded by the sheriff's office. Grenfell's home was under surveillance. Verrall gave Grenfell $475 of the $900. Grenfell l e f t and made a purchase of 320 L S D p i l l s . (The s h e r i f f ' s office failed i n i t s assignment t o follow Grenfell and catch h i s suppliers). When Grenfell returned to his home he gave the LSD p i l l s and $43 i n change t o Verrall. They s p l i t the r e s t of the $900 equally. A s Verrall l e f t with the p i l l s , he signaled the s h e r i f f ' s deputies who quickly arrested Grenfell. This f i n a l transaction, a transfer of the p i l l s from Grenfell t o Verrall, comprised count four of the Information. Grenfell was convicted on t h i s count. H e appeals. Montana's entrapment statute, section 94-3-111, R.C.M. 1947, provides : "A person is not guilty of an offense i f h i s conduct is incited o r induced by a public servant, or h i s agent for the purpose of obtaining evidence for the prosecution of such person. However, t h i s section is inapplicable i f a public servant or h i s agent, merely affords t o such person the opportunity o r f a c i l i t y for committing an offense i n furtherance of criminal purpose which such person has originated." This statute is consonant with e a r l i e r decisions of t h i s Court which set forth the following elements of entrapment: (1) Criminal intent or design originating i n the mind of the police officer o r informer; (2) absence of criminal intent o r design originating i n the mind of the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing. State ex rel. Hamlin, Jr. v. District Court, 163 Mont. 16, 515 P.2d 74; State v. Karathanos, 158 Mont. 461, 493 P.2d 326. The record shows Grenfell was not predisposed t o commit t h i s offense. There was no evidence that prior t o January 26, 1975, Grenfell had ever used o r sold drugs. Grenfell's close friendship with Verrall spanned approximately s i x months, yet Verrall t e s t i f i e d t h a t Grenfell never offered t o s e l l him drugs. The one time Grenfell admitted trying t o smoke hashish he said he q u i t because it hurt h i s throat. This i s not l i k e S t a t e v. Harney, 160 Mont. 55, 499 P.2d 802, where the drug informer made only a casual o f f e r t o buy drugs from the defendant. Here, the e n t i r e scheme originated i n erra all's mind. His telephone c a l l t o Grenfell on January 26, 1975, was the beginning of four consecutive days of p e r s i s t e n t e f f o r t s t o involve Grenfell i n drugs, solely f o r t h e purpose of gathering evidence against him. Whenever Grenfell showed reluc- tance, Verrall coaxed him with visions of V e r r a l l ' s personal need and Grenfell's need t o have money t o t r a v e l t o Utah t o find a job. Had it not been f o r Verrall' s creative a c t i v i t i e s , t h i s offense would never have been committed. The conviction i s reversed and ordered dismissed. Chief J u s t i c e \

May 11, 1977

aad0b9a9-0c32-4359-95a5-184165d1f25f

ESTATE OF CRADDOCK

N/A

13298

Montana

Montana Supreme Court

No. 13298 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF THE ESTATE OF OSCAR W. CRADDOCK, Deceased. Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Jud.qe presiding. Counsel of Record: For Appellant: Burgess, Joyce, Prothero, Whelan & O'Leary, Butte, Montana Robert O'Leary argued, Butte, P4ontana For Respondent : Edward Yelsa argued, Anaconda, Montana Submitted: March 16, 1977 Decided : j~fl - 1 1917 Filed: JUIJ 1- j 3 n Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court . This is an appeal from an order of the district court admitting to probate a purported holographic will of Oscar W. Craddock, who died on November 22, 1969, survived by one brother and five sisters. Oscar W . Craddock had resided on his ranch near Ramsey, Montana, located in Silver Bow County, along with his brother, Ralph Craddock and two sisters, Ruby and Myrtle Craddock. Ralph Craddock resided with his brother from 1953 until 1969, perform- ing most of the physical labor on the ranch. Ruby and Myrtle Craddock resided with Oscar from 1960 until 1969, taking care of the household duties. In February 1972, approximately two and one half years after Oscar W . Craddock's death, Ruby found the holographic will in question in a cupboard above the kitchen sink at the ranch house. The will was taken to the Silver Bow County attorney's office by Ralph shortly thereafter. A few days later Ralph retrieved the will and returned it to the cupboard where it remained until September, 1972. Ruby and Myrtle Craddock were hospitalized in July or August, 1972, Ruby for illness and Myrtle for a nervous break- down. Ruby Craddock died in September, 1972, and Myrtle Craddock was subsequently declared incompetent. Following Ruby's death and the hospitalization in Warm Springs of Myrtle, Ralph Craddock offered the holographic will for probate in September, 1972, an enlarged copy appearing as follows: (The actual dimensions of the will are 4-1/8" x 5-5/8".) This w i l l c o l o r . Craddock, ing t h a t someone o probate o 'hereafter P e a r l Trevenna, another sister of Oscar W. f i l e d an o b j e c t i o n t o t h e probate of t h e w i l l a l l e g - t h e w i l l had been mutilated and m a t e r i a l l y a l t e r e d by lther than Oscar W. Craddock. The d i s t r i c t c o u r t denied if t h e w i l l and Ralph Craddock appealed t o t h i s Court o b j e c t i n g t o t h e procedures followed by t h e d i s t r i c t c o u r t . This Court remanded t h e case t o t h e d i s t r i c t c o u r t f o r a hear- ing a t which t h e proponent was t o make a prima f a c i e showing of proper execution i n compliance with s t a t u t o r y requirements. E s t a t e of O s c a r W. Craddock, 166 Mont. 68, 72, 530 P.2d 483. A t t h a t t i m e t h i s Court s t a t e d : "Accordingly, we remand t h i s c a s e t o t h e d i s t r i c t c o u r t f o r a hearing a t which proponent is t o make h i s prima f a c i e showing of t h e proper execution of t h e w i l l . By s o holding, w e make no d i s p o s i t i o n a s t o t h e m e r i t s of t h e i s s u e . The a l t e r a t i o n s appearing on t h e f a c e of t h i s holographic w i l l , i f unexplained, could i n v a l i d a t e t h e w i l l . The determination r e s t s with t h e d i s t r i c t c o u r t upon proper hearing." (Emphasis supplied.) The d i s t r i c t c o u r t held t h i s hearing wherein Ralph Craddock and h i s daughter,Charlene Berryman, t e s t i f i e d i n t h e proponent's c a s e i n c h i e f . The c o n t e s t a n t , who is now George Trevenna, t h e personal r e p r e s e n t a t i v e of t h e e s t a t e of P e a r l Trevenna, deceased, presented no c a s e i n c h i e f . Thereafter, t h e d i s t r i c t c o u r t entered an order admitting t h i s w i l l t o probate and t h e c o n t e s t a n t appealed. The d i s t r i c t c o u r t , however, f a i l e d t o make f i n d i n g s of f a c t and conclusions of law, s t a t i n g its b a s i s f o r t h e order. N o w w e are asked t o address t h e m e r i t s of t h i s case. Rule 5 2 ( a ) , M.R.Civ.P., makes it mandatory t h a t t h e d i s - t r i c t c o u r t make f i n d i n g s of f a c t and conclusions of l a w i n a l l a c t i o n s t r i e d upon t h e f a c t s without a jury. Absent f i n d i n g s of f a c t and conclusions of l a w , t h i s Court i s forced t o speculate a s t o t h e reasons f o r t h e d i s t r i c t c o u r t ' s decision. Such a s i t u - a t i o n is n o t a healthy b a s i s f o r a p p e l l a t e review. For t h i s reason we r e v e r s e t h e d i s t r i c t c o u r t ' s order and again remand t h i s case t o t h e d i s t r i c t c o u r t with i n s t r u c t i o n s t o make f i n d i n g s of f a c t and conclusions of law, based upon t h e hearing previously held before t h e d i s t r i c t c o u r t , and e n t e r an o r d e r accordingly. For purposes of possibly expediting t h e d i s p o s i t i o n of this matter, we will address one principle of law relied upon by the proponent at the district court and before this Court. The proponent asserts that he is entitled to a presump- tion that the testator made any alterations or modifications found to appear upon the holographic will. The proponent cites two California cases as authority for this principle, Estate of Stickney, 101 C.A.2d 572, 225 P.2d 649, and Estate of Cuneo, 60 C.2d 196, 384 P.2d 1. However, a better understanding of this rule of law is found in Estate of Hewitt, 63 C.A. 440, 218 P. 778, in which California first discussed this principle. Hewitt involved a will found in an open closet four to five weeks after the testatrix's death with the signatures cut away. The district court instructed the jury that where a will remains in the testator's possession until his death, and is then found among his papers with alterations, cancellations or tearings, the presumption is that such alterations, cancellations, or tearings were done by the testator with the intention to re- voke. This instruction was first of all held to be in error for the use of the word "presumption" instead of "inference". Second- ly, the court pointed out that the will was found four to five weeks after the testatrix's death in an open hall closet; that the testatrix's son, the contestant, also had a key to a safety deposit box, in which the will had been previously kept; that the contestant had access to some of the testatrix's papers shortly before her death and had secretly destroyed them. The court then held: "On the facts, therefore, the case is not similar to those upon which the rule of law, however correct it may be, has been laid down, that, when a will is found immediately upon the death of the testator among his private papers, or in his depository, and in a mutilated condi- tion, having been continuously in the testator's possession until his death, the presumption is that it was mutilated by the testator himself animo revocandi. I t i s hardly necessary t o point o u t t h e e r r o r i n t h e use of t h e word "presumption". (Emphasis supplied.) A s r e c e n t l y s t a t e d i n I n r e E s t a t e of Hartman, Mont . "Legal presumptions a r e founded upon t h e exper- ience and observation of distinguished j u r i s t s a s t o what is usually found t o be t h e f a c t r e s u l t - ing from any given circumstances; and, t h e r e s u l t being thus ascertained, whenever such circumstances occur, they a r e prima f a c i e evidence of t h e f a c t presumed. " It is not a l o g i c a l inference from t h e f a c t s of t h e present case t h a t t h e t e s t a t o r made t h e cross-outs i n question. This holographic w i l l , which leaves t h e e n t i r e e s t a t e t o t h e proponent, w a s found two and one half years a f t e r t h e t e s t a t o r ' s death. The proponent then retained possession of t h e w i l l f o r seven months and presented it f o r probate following t h e death of one sister and t h e mental h o s p i t a l i z a t i o n of t h e o t h e r sister, both of whom had resided with the t e s t a t o r and performed h i s household duties. Under such circumstances, t h i s proponent i s not e n t i t l e d t o t h e evidentiary b e n e f i t of a presumption, i f any does e x i s t , t h a t t h e t e s t a t o r authored t h e cross-outs i n question. This cause i s reversed and remanded t o the d i s t r i c t court with i n s t r u c t i o n s t o e n t e r an order i n accordance with t h i s decision. Chief J u s t i c e 4

June 1, 1977

8f579321-5a96-4293-8686-a222d563bfc4

MATTER OF HALL

N/A

13452

Montana

Montana Supreme Court

No. 13452 IN THE SUPREIgE COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF THE ADOPTION OF BABY GIRL HALL, a Minor Child DONNA HALL NAGY, Appellant, GLEN E. WILLIAMS and DOLORES LORRAINE WILLIAMS, Respondents. Appeal from: District Court of the Eighth Judicial District, Honorable Paul G. Hatfield, Judge presiding. Counsel of Record: For Appellant: Smith, Emmons, Baillie and Walsh, Great Falls, Montana Robert J. Emmons argued, Great Falls, Montana For Respondents: James W. Zion argued, Helena, Montana Thomas E. Boland argued for Baby Girl Hall, Helena, Montana Submitted: January 13, 1977 Decided: JUL_ ,l l(.~n Filed: ,gUe - 1 19?t;i' 7 a i w u . Q 8. y i G w Y clerk Hon. Gordon Bennett, District Judge, sitting for Chief Justice Paul G. Hatfield, delivered the Opinion of the Court. This is an appeal from a final order of the district court, Cascade County, denying a petition for annulment of an adoption decree and, in the alternative, for a writ of habeas corpus. Petitioner was born January 21, 1954, and gave birth to the child involved in this litigation on June 18, 1970. On July 17, 1970, the district court decreed the adoption of the child by respondents, having found the child was abandoned by its natural parents. In June 1975, petitioner discovered her child had purportedly been adopted by respondents and was living in their home. She filed her petition November 4, 1975. Respondents moved to quash. Pursuant to a written stipulation filed by the parties, the district court on November 14, 1975, issued its order determining, inter alia, that the adoption decree was invalid. It found a lack of due process because no notice was given the natural parents, and that consent had not been waived by abandonment for the required period of one year, in view of the fact the child was only 24 days old at the time of the adoption, In the same order, and again by stipulation of the parties, the court directed the local welfare office to investigate the living circumstances and parental qualifications of petitioner and respon- dents and make its recommendation as to where the child should best be placed. The report was to be made to the court with counsel for both parties present and allowed to cross-examine as to its contents. After the filing of the report and an adversary hearing on the question of the best interests of the child, the court on March 29, 1976, issued its findings of fact, conclusion of law and order, wherein it confirmed its previous conclusion that the adoption decree was invalid for lack of notice and the absence of consent by abandonment. The court then concluded petitioner was guilty of laches and was estopped from maintaining her petition because she could have commenced her action upon reaching majority on July 1, 1973, under the provisions of Art. 11, Section 14, 1972 Montana Constitution. It also concluded it was in the best interests of the child to remain in respondents' home. The court denied the petition and granted the motion to quash. We would not disturb the stipulation of the parties and the conclusion of the district court pursuant thereto that the adoption decree is invalid, as there is no request or basis presented for doing so. The decree is, however, not only invalid, it is void for all purposes. It is conceded no notice was given the natural parents. More than fifty years ago, this Court recited with approval the universally accepted general rule that notice to natural parents in these cases is indispensable to jurisdiction; if jurisdiction is not thus obtained there can be no judicial determination, and any such purported determination is void. State ex rel. Thompson v . District Court, 75 Mont. 147, 151, 242 P. 959. This Court has not deviated from this rule. See: Bascom v. Car- penter, 126 Mont. 129, 136, 246 P.2d 223, recently reinforced by the United States Supreme Court in Armstrong v. Manzo, 380 U . S . 545, 85 Sect. 1187, 14 L ed 2d 62. Nothing appears in this case that would remove it from the application of the rule. In 1921 this Court in Lamont v. Vinger, 61 Mont. 530, 546, 202 P. 769, adopted from the landmark case of Pennoyer v. Neff, 95 U . S . 714, 728, 24 L Ed 565, the fundamental principle that: I I A judgment void when rendered w i l l always remain void. The validity of every judgment depends upon the juris- diction of the court before it i s rendered, not upon what may occur subsequently ." This principle remains undisturbed, here and elsewhere. It re- quires that we give a void decree no effect whatever a t any time and view it a s a n u l l i t y for a l l purposes. Thus it is the limited function of t h i s Court t o declare there never was a legally cognizable adoption decree i n t h i s case. That being so, the equitable doctrines of laches and estoppel cannot be applied t o save the non-existent decree or. t o implement it i n any way. It i s also conceded that no consent was given by the natural parents, nor was there a valid exception t o the consent requirement of ~ o n t a n a ' s statute, section 61-205, R.C.M. 1947. W e have required s t r i c t compliance with that statute (Adoption of Biery, 164 Mont. 353, 522 P.2d 1377), but have not yet found failure t o comply with it jurisdictional, as have courts i n other jurisdictions. See for example: Franklin v. Biggs, 14 Or.App.450, 513 P.2d 1216,1217; 2 C.J.S. Adoption of Persom, 551, p. 470, and cases cited therein. W e see no reason for relaxation of the standard i n t h i s case and would s e t aside the decree, as w e did i n Biery, i f it had any validity i n the f i r s t place. Petitioner sought not only annulment of the adoption decree but the return of her child upon a w r i t of habeas corpus. Appar- ently pursuant t o the l a t t e r petition, and upon stipulation of the parties, a f u l l hearing was provided i n the d i s t r i c t court on the question of the "best interests of the child". This being the basic criterion by which custody i s determined the hearing may be considered a cugtody hearing, held with the consent of both parties. O n the basis of t h i s hearing, the court concluded a s a matter of law that it was i n the best interests of the child t o leave it with respon- dents. Having so concluded, the court granted responsents' motion t o quash and, i n effect, granted custody t o them. W e cannot quarrel with the court's conclusion a s t o the best interests of the child. The transcript reveals the case was thoroughly investigated by the county welfare department and i t s report was aired with equal thoroughness a t the hearing. There i s an abundance of substantial credible evidence t o support the court's conclusion. Thus we find no abuse of discretion by the d i s t r i c t court and must affirm its conclusion. Adoption of Biery, supra, and cases cPted therein. For the above reasons, the adoption decree involved herein should be annulled and permanent custody of the child decreed i n respondents. The cause is remanded t o the d i s t r i c t court for entry of its decrees i n accordance with t h i s opinion. Judge. W e Concu /- Justices. M r . J u s t i c e Daniel J. Shea concurring i n p a r t and d i s s e n t i n g i n p a r t : I concur with t h a t portion of t h e majority d e c i s i o n voiding t h e adoption decree, b u t I d i s s e n t on i t s d e c i s i o n g r a n t i n g permanent custody t o the adoptive p a r e n t s . For a l l p r a c t i c a l purposes t h i s d e c i s i o n f o r e c l o s e s the n a t u r a l mother from e v e r s u c c e s s f u l l y p e t i t i o n i n g t o obtain custody of h e r daughter. She can have no consolation i n winning h e r case but l o s i n g h e r c h i l d . I do n o t b e l i e v e t h a t t h e r e s u l t would have been t h e same i n t h e d i s t r i c t c o u r t if t h e d i s t r i c t c o u r t had voided t h e adoption decree, f o r i n t h a t case t h e adoptive parents would not have had any l e g a l claim t o t h e c h i l d . While t h e c o u r t would n o t have been bound t o immediately give custody t o t h e n a t u r a l mother, t h e adoptive parents would have had no l e g a l b a s i s f o r then obtaining permanent custody of t h e c h i l d . It is c l e a r however, t h a t t h e d i s t r i c t c o u r t recognized t h i s problem f o r it held t h a t although t h e adoption decree was void, it r e a l l y was n o t void. The reason was t h a t t h e n a t u r a l mother was g u i l t y of laches and t h e r e f o r e had no l e g a l b a s i s t o s e t t h e adoption a s i d e . However, by upholding t h e adoptive p a r e n t s 1 claim of laches t h e c o u r t d i d n o t have t o reach a decision on t h e "best i n t e r e s t s " of the c h i l d , f o r a t t h a t point t h e n a t u r a l mother had no l e g a l r i g h t t o be heard. She was standing before t h e c o u r t a s a s t r a n g e r t r y i n g t o o b t a i n custody of a c h i l d t h a t was no longer h e r s . C e r t a i n l y t h e c o u r t was n o t going t o award permanent custody t o a s t r a n g e r . But t h i s Court by o v e r r u l i n g t h e claim of laches a s applied t o a void adoption decree, held the ; n a t u r a l mother was n o t a s t r a n g e r , and she was wronged by t h e adoptive parents p a r t i c i p a t i n g i n t h e f i l i n g of a f a l s e adoption p e t i t k o n . But i n t h e same b r e a t h t h e Court has deprived t h e n a t u r a l mother from e v e r o b t a i n i n g l e g a l custody of h e r daughter. The p r o v i s i o n s of t h e Uniform Marriage and Divorce Act, a p p l i c a b l e t o f u r t h e r d i s t r i c t c o u r t proceedings i n t h i s case<, place an impossible burden on t h e n a t u r a l mother. The Uniform Marriage and Divorce Act went i n t o e f f e c t on January 1, 1976 and pursuant t o s e c t i o n 48-341(4) R.C.M. 1947, any f u r t h e r d i s t r i c t c o u r t proceedings i n t h i s c a s e must be under t h i s Act. Section 48-341(4) provides: "In any a c t i o n o r proceeding i n which an a p p e a l was pending o r a new t r i a l was ordered p r i o r t o t h e e f f e c t i v e d a t e of t h i s a c t , t h e law i n e f f e c t a t t h e time of t h e o r d e r s u s t a i n i n g t h e appeal o r t h e new t r i a l governs t h e appeal, t h e new t r i a l , and any subsequent t r i a l o r a p p e a l . " Here, t h e t r i a l took place i n March, 1976 and an appeal was f i l e d on A p r i l 27, 1976. Therefore, f u r t h e r proceedings i n t h i s c a s e must be under t h i s Act. Under Section 48-339(1), R.C.M. 1947, a p e t i t i o n t o o b t a i n custody of a c h i l d (absent e x t e n u a t i n g and emergency s i t u a t i o n s ) can be f i l e d only once i n a two year p e r i o d . Th,is means t h e mother must endure a s u b s t a n t i a l w a i t i n g period before she can f i l e a custody p e t i t i o n . But even i f she l a t e r f i l e d a p e t i t k o n , h e r e f f o r t s would most l i k e l y be doomed t o f a i l u r e because she must overcome t h e heavy burden of proof placed on h e r by t h e Act. To be e n t i t l e d t o a h e a r i n g under s e c t i o n 48-339, R.C.M. 1947, t h e n a t u r a l mother must f i l e an a f f i d a v i t o r sworn p e t i t i o n a l l e g i n g e v i d e n t i a r y f a c t s ( s e c t i o n 48-340, R.C.M. 1947) t h a t t h e c h i l d ' s "physical, mental, moral, o r emotional h e a l t h " i s b e i n g harmed i n h e r p r e s e n t home. Because a l l a g r e e t h a t t h e adoptive p a r e n t s have been good p a r e n t s , it would indeed take a c r e a t i v e mind t o a l l e g e s u f f i c i e n t e v i d e n t i a r y f a c t s t h a t would e n t i t l e t h e n a t u r a l mother t o a hearing. Moreover, s i n c e t h e t r i a l c o u r t has a l r e a d y determined t h e " b e s t i n t e r e s t s ' ' of t h e c h i l d a r e w i t h the adoptive parents, upon another h e a r i n g t h e c o u r t would be required t o r e t a i n them a s custodians u n l e s s "the c h i l d ' s present environment endangers s e r i o u s l y h i s physical, mental, moral, o r emotional h e a l t h , and t h e harm l i k e l y t o be caused by a change of environment i s outweighed by i t s advantages t o him." Section 48-339{2)(c). Thus we have a s i t u a t i o n where t h e s t a t e d purpose of t h e Uniform Marriage and Divorce Act of keeping t h e c h i l d i n a s t a b l e , permanent environment is depriving t h e n a t u r a l mother from e v e r obtaining custody of h e r c h i l d . his is n o t a j u s t r e s u l t , nor is it n e c e s s a r i l y , t h e long run, t h e r i g h t decision f o r t h e c h i l d . The n a t u r a l mother l i v e s only a few blocks from h e r c h i l d , b u t only knew of h e r whereabouts j u s t a s h o r t period before f i l i n g t h e p e t i t i o n i n d i s t r i c t c o u r t t o annul t h e adoption decree. The c h i l d does n o t know she has been adopted. However, even assuming t h e adoptive parents have been granted permanent custody it would appear t h e n a t u r a l mother now has a r i g h t t o p e t i t i o n f o r reasonable v i s i t a t i o n r i g h t s pursuant t o s e c t i o n 48- 337(1), R.C.M. 1947, which provides: "A parent n o t granted custody of t h e c h i is e n t i t l e d t o reasonable v i s i t a t i o n r i g h t s u n l e s s t h e c o u r t f i n d s , a f t e r a hearing, t h a t v i s i t a t i o n would endanger s e r i o u s l y t h e c h i l d physical, mental, moral, o r emotional h e a l t h . It would seem most l i k e l y t h e c h i l d w i l l now f i n d out she has , -, - been adopted and t h e i d e n t i t y of h e r n a t u r a l mother. Yet t h e mother w i l l never have a meaningful opportunity t o o b t a i n t h e custody of h e r daughter. In s e t t i n g a s i d e t h e adoption decree but s t i l l leaving permanent custody i n t h e adoptive parents, t h e Court r e l i e s on Adoption O f Biery, 164 Mont. 353, 522 P.2d 1377, but I f e e l t h a t r e l i a n c e is misplaced. I n Biery t h e n a t u r a l mother was served with process before t h e adoption and p a r t i c i p a t e d f u l l h e a r i n g t o determine t h e "best i n t e r e s t s " of t h e c h i l d . Also, t h e adoptive p a r e n t s i n Biery had a c t u a l custody of t h e c h i l d before t h e adoption. The reason f o r s e t t i n g a s i d e t h e adoption i n Biery was because t h e r e was no f i n d i n g by t h e d i s t r i c t c o u r t t h a t t h e mother had abandoned t h e c h i l d f o r a period of one y e a r . A s t a t u t e r e q u i r e d t h e adoptive p a r e n t s t o prove t h e mother d i d n o t support t h e c h i l d f o r a one y e a r period and she had t h e a b i l i t y t o support t h e c h i l d during t h a t p e r i o d . Section 61-205, R.C.M. 1947. The adoption was s e t a s i d e without p r e j u d i c e . The f a c t s a r e very d i f f e r e n t i n t h e i n s t a n t c a s e . The n a t u r a l mother was a minor when she signed a consent form t o have h e r c h i l d adopted. N o guardian ad l i t e m was appointed t o r e p r e s e n t h e r i n t e r e s t s . She was n o t served with process i n t h e guardianship proceedings. The p e t i t i o n t o adopt was f a l s e on its f a c e . It a l l e g e d abandonment, i n which c a s e t h e abandonment must have e x i s t e d f o r a period of a t l e a s t one y e a r . S e c t i o n 61- 205,R.C.M. 1947. However, t h e p e t i t i o n a l l e g e d t h e c h i l d was born on June 18, 1970, and t h e p e t i t i o n was f i l e d on J u l y 17, 1970, j u s t 24 days a f t e r t h e c h i l d ' s b i r t h . S t i l l t h e c o u r t approved t h e adoption. The e n t i r e proceedings were devoid of even t h e rudiments of due process. The e f f e c t of t h e C o u r t ' s d e c i s i o n i s t h a t due process when a p p l i e d t o c h i l d custody c a s e s i s meaningless, f o r it is custody of t h e c h i l d t h a t i s important. I f a couple, however w e l l i n t e n t i o n e d , can a c q u i r e permanent custody of a c h i l d i n t h e manner done i n t h i s case, then p a r e n t a l r i g h t s a r e meaningless. I n e f f e c t , t h i s Court is holding t h a t permanent custody of a c h i l d can be acquired by a hybrid form of adverse possession and it does n o t m a t t e r t h a t t h e i n i t i a l possession was acquired by i l l e g a l means. I ~ ~ o u l c l v o ~ u the entire pr?ocezdin&s drld allow t h e a d o p t i v e uaren ts temporary custody u n t i l such time as s a t i s f a c t o r y a r r a n g e - ments could be worked o u t f o r t h e t r a n s f e r of permanent custody so t h e n a t u r a l mother.

July 1, 1977

7bf1a174-4311-464e-ad2e-582a5e664ec2

STATE v GAFFORD

N/A

13475

Montana

Montana Supreme Court

No. 13475 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE OF MONTANA, Plaintiff and Respondent, CARL GAFFORD, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable - , Judge presiding. Counsel of Record: For Appellant: Edward A. Cummings argued, Missoula, Montana For Respondent: Hon. Michael Greely, Attorney General, Helena, Montana Dennis Moreen argued, Assistant Attorney General, Helena, Montana Richard P. Heinz argued, County Attorney, Polson, Montana Submitted: January 13, 1977 Decided : -MAY 3 1977 Filed: B N 3 l g n Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Defendant was charged with two counts of sexual inter- course without consent causing bodily injury. Following a jury trial in district court, Lake County, defendant was convicted of both counts. Judge Jack L. Green entered judgment sentencing defendant to consecutive 20 year terms in the state prison on each count. Defendant appeals from the judgment of conviction. The evidence at trial disclosed that on the evening of June 2 9 , 1975, the victim went to the Diamond Horseshoe, a Polson area bar. She was accompanied by her sister Charlotte. Another sister, Debbie, later joined the two girls at the Diamond Horseshoe. While at the bar, the victim noticed defendant Carl Gafford motion to her from across the dance floor. Defendant was married to the victim's sister Debbie. The victim left the table where she and her two sisters were seated and joined defendant. The two conversed for a few minutes and thereafter left the bar. According to the victim, defendant asked her to go for a ride and talk over the problems he was having with her sister. Defendant denied this. In any event defendant hid his motorcycle near a rural dirt road out- side Polson and joined the victim in her car. They then drove to a bar near Dayton, Montana and had two beers each. When they left the bar in Dayton, defendant purchased a bottle of wine with the victim selecting the brand. They drove around the countryside drinking the wine and listening to the car stereo. Sometime around midnight as they were returning to Polson, defendant who was driving the car stopped alongside the highway in order to relieve himself. There- after as defendant attempted to drive the car back on the highway, the car became stuck. The victim became alarmed that her car had been damaged and an argument followed. At this point the evi- dence is conflicting as to whether the defendant struck, choked, slapped or sat on the victim. She testified she was forced to accompany defendant into a nearby field where she was subjected to sexual intercourse without her consent. She testified defendant slapped her around and struck her on the nose with his fist whereby she suffered bodily injury. De- fendant testified that no sexual intercourse took place on this occasion. Thereafter defendant and the victim returned to the stuck automobile. A passing motorist stopped and with the aid of a rope freed the car. Defendant and the victim then con- tinued toward Polson and stopped where defendant had previous- ly hidden his motorcycle. Both the victim and defendant testified that sexual intercourse then occurred. Defendant testified the intercourse was with consent, while the victim testified it was without her consent and that she suffered bodily injury. The victim returned home and was examined the follow- ing day by Dr. Coriell, the family physician. The examination revealed several bruises and abrasions on various parts of her face and body. Tests showed the presence of sperm in her vaginal tract. The Lake County attorney was notified. On June 30, 1975, the county attorney filed a complaint in justice court charging defendant with two counts of sexual intercourse without consent. Defendant was arrested the same day, the public defender was appointed to represent him, bail was fixed and defendant was released on bail. Subsequently defendant waived preliminary hearing and was bound over to district court. On July 30, 1975, the county attorney filed an informa- tion in the district court charging defendant with two counts of sexual intercourse without consent during which the victim suffered bodily injury. Defendant appeared with the public defender, was arraigned and pleaded "not guilty" to each count, waived his right to a speedy trial, and was released on bail previously posted. On February 4, 1976, the district court set the date of March 1, 1976 for jury trial. On February 6, new counsel for defendant was substituted for the public defender. On that same date defendant's new counsel filed a written motion to require the state, among other things to provide defendant with a list of witnesses intended to be called by the state at trial, to require the state to produce "all documents, papers, or things which the state intends to introduce into evidence at trial", and all pictures of the victim or of "any item or locale connected with the events upon which these charges were based." The district court granted all these motions. On February 17, defendant's counsel filed a written notice to take the deposition of the victim and to secure "the names and addresses of persons who have information relevant or material to a determination of the facts surrounding the present charge." The motion of the state to depose the victim was granted and the county attorney assured the court "that to the extent that any names of witnesses who do become known to the State, that they will be turned over to" defense counsel. The deposition of the victim was taken on February 23. She stated X-rays had been taken of her nose. She further testi- fied these X-rays were taken at the request of the examining physician, Dr. Coriell. At least one week prior to trial, both the county attorney and defendant's attorney were in possession of a written report by Dr. Coriell that made no mention of X-rays or possible fractures. At the time of the deposition the victim authorized Dr. Coriell to release medical information including tests to defense counsel. The trial began on Wednesday, March 3. On the weekend of March 6-7, the county attorney telephoned defense counsel and disclosed the existence of X-rays of the victim taken the day following the alleged crime which disclosed a nondisplaced fracture of the nose. On Monday, March 8, when the trial reconvened, the county attorney moved to enter the name of Dr. avid Dahlgren, the radiologist who examined the X-rays, as a witness for the state. Defense counsel objected and requested that in the event the motion was granted a continuance of one week to have the X-rays evaluated by an independent medical expert. A con- tinuance of one day was granted by the court. Testimony was concluded on March 11 and the case was submitted to the jury. The jury returned a verdict of guilty on both counts. Judgment was entered. Defendant appeals from the judgment. Defendant raises three specifications of error: (1) Denial of defendant's motion for mistrial during jury selection based upon nonresponsive and prejudicial answers of two prospective jurors. (2) Reversible error in permitting impeachment of defend- ant based on a prior conviction of a felony. ( 3 ) Reversible error in permitting the state to add the name of the radiologist as an additional witness for the state in the middle of the trial. Directing our attention to the first specification of error, the record discloses that at the beginning of the voir dire examination of prospective jurors, the trial judge asked the whole panel if any of them knew any of the parties. Pros- pective juror Finley indicated he knew defendant and stated at one time he was in jail with defendant. Defense counsel asked if this jailing was at the time of the arrest of defendant on the charges now before the court. Finley answered that he thought it was not--it was on a DWI charge. Additionally, during voir dire examination by defense counsel, prospective juror Ducharme was asked whether his association with defend- ant in high school would cause him to be prejudiced against the defendant. Ducharme answered he knew defendant was in trouble before, but that would not prejudice him. As to Finley's answers, we find no reversible error on two grounds: (1) Defendant's motion for mistrial was not made at the first recess following the answers, and (2) the answers were invited by the further questions of defense counsel. Concerning Ducharme's answer, we do not consider it so nonresponsive as to constitute reversible error. Defense coun- sel could have limited his question to a "yes" or "no" answer and failed to do so. Ducharme's answer disclosing his knowledge and indicating it would not prejudice him, although perhaps technically broader than the question asked, was within the bounds of a normal response by a layman unversed in the intrica- cies of language and correct legal procedure. We find no revers- ible error in the district court's denial of defendant's motion for a mistrial. The second specification of error concerns the state's right to impeach the defendant by evidence of a prior conviction of a felony. Defendant argues this is impermissible since adop- tion of the 1972 Montana Constitution and repeal of section 94-4723, R.C.M. 1947, shortly after the new Constitution became effective. Our attention is directed to the new Evidence Code, effective July 1, 1977, that eliminates this method of impeach- ment and particularly to the Commission Comments in connection therewith. Here, the district court denied a motion of defense counsel outside the presence of the jury to bar the prosecution from bringing to the jury's attention the fact that defendant had previously been convicted of a felony. Thereafter the state, during cross-examination of defendant in his case-in- chief, asked this question: "Q. Carl Gafford, have you ever been convicted of a felony? A. When I was 19, I pleaded guilty to receiving stolen property." During final argument, the county attorney in discussing where the truth lies, made these remarks: " * * * You are to measure this case from the mouth of the witnesses who sat here. Is this girl telling the truth? You are judging her there. You are judging him there sitting there also and you may consider the fact that in judging his credibility the fact that he is a convicted felon." Prior to the 1972 Montana Constitution it had long been the law in Montana that a witness could be impeached by evidence of a prior conviction of a felony. Section 94-4723, R.C.M. 1947; Section 93-1901-11, R.C.M. 1947; State v. Coloff, 125 Mont. 31, 231 P.2d 343; State v. Romero, 161 Mont. 333, 505 P.2d 1207. Art. 11, Section 28, 1972 Montana Constitution contains this provision: "Rights of the convicted. Laws for the punish- ment of crime shall be founded on the principles of prevention and reformation. Full rights are restored by termination of state supervision for any offense aqainst the state." (Emphasis added.) Section 94-4723 has been repealed. Section 95-2227, R.C.M. 1947, has been enacted and provides in pertinent part: "Effect of conviction. * * * "(3) When a person has been deprived of any of his civil or constitutional rights by reason of conviction for an offense and his sentence has expired or he has been pardoned he shall be restored to all civil rights and full citizenship, the same as if such conviction had not occurred." Section 93-1901-11, R.C.M. 1947, was not repealed and remains the law of Montana. It provides the methods of impeach- ment and includes: " * * * it may be shown by the examination of the witness, or the record of judgment, that he has been convicted of a felony." Section 93-2101-2, R.C.M. 1947, also permits impeachment by evidence of a prior conviction of a felony. Defendant contends section 93-1901-11 was superseded by the enactment of section 95-2227. We do not so construe it. The legislature specifically repealed section 94-4723 and made no mention of section 93-1901-11 or 93-2101-2. Repeals by implication are not favored. State v. Winter, 129 Mont. 207, 285 P.2d 149; State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 P.2d 785; State v. Schnell, 107 Mont. 579, 88 P.2d 19. In Fletcher v. Paige, 124 Mont. 114, 119, 220 P.2d 484, it is stated : "It will not be presumed that a subsequent enact- ment of the legislature intended to repeal former laws upon the subject when such former laws were not mentioned." An implied repeal of a statute will not be so held, absent a clear legislative intent to that effect. State v. Lagerquist, 152 Mont. 21, 445 P.2d 910; Teamsters et al. v. Mont. Liquor Control Board, 155 Mont. 300, 471 P.2d 541; Fletcher v. Paige, supra. Here there is none. Defendant also argues that sections 93-1901-11 and 93- 2101-2, R.C.M. 1947, are part of the civil code and have no application to criminal proceedings. The rules of evidence applicable to civil proceedings have long been held applicable to criminal proceedings. Section 95-3001, R.C.M. 1947, (Ehrmerly section 94-7209); State v. O'Neill, 76 Mont. 526, 248 P. 215; State v. Coloff, 125 Mont. 31, 231 P.2d 343; State v. Romero, 161 Mont. 333, 505 P.2d 1207. Defendant advances the position that permitting impeach- ment by evidence of a prior conviction of a felony is uncon- stitutional under the 1972 Montana Constitution. He contends that Art. 11, Section 28, providing that full rights are restored by termination of state supervision for any offense against the state, prohibits this method of impeachment. In our view bis Constitutional provision cannot be given such a broad and sweeping construction. In construing and interpreting constitutional provisions, an interpretation that achieves a reasonable result is favored. 2A Sutherland Statutory Construc- tion, 4th Ed., , § 45.12, p. 37 and cases cited therein. Sec- tion 49-134, R.C.M. 1947. State ex rel. Ronish v. School Dist. No. 1, 136 Mont. 453, 348 P.2d 797; Keller v. Smith, Mont . , 553 P.2d 1002, 33 St.Rep. 828. To construe Art. 11, Section 28 in the sense contended by defendant would prohibit a sentencing judge from hearing or considering the prior criminal record of a convicted felon in determining the sentence to be imposed; it would prohibit an employer such as a bank, a large supermarket, or any retail business handling money from refusing employment as a teller or cashier to a prior convicted embezzler or thief by reason thereof; and it would prohibit a state insti- tution housing juveniles from refusing employment to a convicted child molester by reason of such prior conviction. Examples abound illustrating the unreasonableness of such construction. We refuse to give this constitutional provision such absolute, broad and sweeping construction. In our view the constitutional provision refers to those rights commonly considered political and civil rights incident to citizenship such as the right to vote, the right to hold public office, the right to serve as a juror in our courts and the panoply of rights possessed by all citizens under the laws of the land. It has no reference to an individual's character- istics, record, or previous conduct demonstrated by a prior felony conviction. Defendant further states his constitutional right to appear and defend himself in a criminal proceeding in person and by counsel is trespassed if his credibility can be impeached by a prior felony conviction. Art. 11, Section 24, 1972 Montana Constitution. We find no merit in this contention. The testimony of an accused, as in the case of any other witness, is subject to attack by impeachment. Prohibiting impeachment as a violation of an accused's right to defend himself is tantamount to requiring the jury to don blinders in its search for the truth. Defendant also contends that permitting impeachment by prior conviction of a felony denies a prior convicted felon the equal protection of the law in violation of Art. 11, Section 4, 1972 Montana Constitution. He argues this singles out a special class of persons, i.e. prior convicted felons, for special treat which is constitutionally impermissible. Classi- fications for different treatment are not per se unconstitutional. State v. Craig, Mont . , 545 P.2d 649, 33 St.Rep. 86; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L Ed 369; Royster Guano Gb.v.Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L Ed 989. It is only if the classification is unreason- able that the constitution is violated. Regardless of the legis- lative wisdom or merit of singling out prior convicted felons for special treatment, the legislative classification cannot be said to contravene the standard of reasonableness. Finally, we reject defendant's argument based on the proposed new code of evidence. Whatever may be said of the pros and cons of abolishing impeachment by evidence of a prior con- viction of a felony, the new evidence code was not in effect at the time of trial of this case and consequently has no application. Defendant's third specification of error is whether permitting the addition of the radiologist as an additional state's witness in mid-trial was prejudicial and reversible error. The controlling statute section 95-1803, R.C.M. 1947, provides : "Discovery, inspection, and notice. In all criminal cases originally triable in district court the following rules shall apply: " (a) List of Witnesses: "(1) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the de- fendant and file with the clerk of the court at the time of arraignment, a list of the witnesses intended to be called by the prosecution. The prosecution may, any time after arraignment, add to the list the names of any additional witnesses, upon a showing of good cause. The list shall include the names and addresses of the witnesses. " (2) The requirement of subsection (a) (I), of this section, shall not apply to rebuttal witnesses. "(b) Subpoenas may be used as a discovery device as provided for under section 95-1801(d). "(c) On motion of any party within a reasonable time before trial all parties shall produce at a reasonable time and place designated by the court all documents, papers or things which each party intends to introduce in evidence. Thereupon any party shall, in the presence of a person designated by the court, be permitted to inspect or copy any such documents, papers or things. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just. If the evidence relates to scientific tests or experiments the opposing party shall, if prac- ticable, be permitted to be present during the tests and to inspect the results thereof. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, res- tricted or deferred, or make other appropriate orders. If, subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested which is subject to discovery or inspection under the rule he shall promptly notify the other party or his attorney or the court of the existence of the additional material. The court shall exclude any evidence not presented for inspection or copying pursuant to this rule, unless good cause is shown for failure to comply. In the latter case the opposing party shall be entitled to recess or a continuation during which it may inspect or copy the evidence in the manner provided for above. "(d) For purpose of notice only and to prevent surprise, the defendant shall furnish to the prosecution and file with the clerk of the court at the time of entering his plea of not guilty or within ten (10) days thereafter or at such later time as the court may for good cause permit, a statement of intention to interpose the defense of insanity, self-defense or alibi. If the de- fendant intends to interpose any of these defenses, he shall also furnish to the prosecution and file with the clerk of the court, the names and addresses of all witnesses to be called by the defense in support thereof. The defendant may, prior to trial, upon motion and showing of good cause, add to the list of witnesses the names of any additional wit- nesses. After the trial commences, no witnesses may be called by the defendant in support of these defenses, unless the name is included on such list, except upon good cause shown. " ( e ) All matters which are privileged upon the trial, are privileged against disclosure through any discovery procedure." This statute allows the addition of witnesses after trial has commenced on a showing of good cause. Commission Comments to section 95-1803, R.C.M. 1947; State v. Klein, Mont . , 547 P.2d 75, 77, 33 St.Rep. 283, 286. "Good cause" has been defined as "substantial reasonw--one that affords a legal excuse. State v. Rozzell, 157 Mont. 443, 486 P.2d 877; State v. Klein, supra. In Klein the Court stated: "The court should first determine whether the need for the additional witnesses and the reason for their not being disclosed earlier is a 'substantial reason'. It should then determine whether there is prejudice based on surprise and whether this surprise can be overcome by the granting of a con- tinuance. If the surprise element can be overcome by a continuance, then the witness should be endorsed and the continuance granted. The spirit and intent of the law is that names and addresses of potential witnesses should be disclosed as soon as they are known. " As trial progresses, the showing necessary to establish "good cause" should be more stringent. Commission Comments to section 95-1803, R.C.M. 1947, supra. The circumstances of this case furnish the background of the district court's ruling. Defendant's counsel took the dep- osition of the victim eight days before trial. At that time the following information was elicited by defense counsel: "Q. you indicated that an X-ray had been taken? A. Yes. "Q. Where and by whom? A. Up at St. Joseph's Hospital. "Q. Who requested the X-ray? A. Dr. Coriell said that I should have it X-rayed to make sure that it wasn't broken." Sometime the previous November, the public defender and then counsel for defendant, had received a written medical report from Dr. Coriell concerning his examination of the victim. About a week prior to trial the county attorney received this medical report. Defense counsel had discussed with Dr. Coriell his examination of the victim. No mention of the X-rays in question was made in the written reports or discussion by Dr. Coriell. Trial commenced on Wednesday, March 3. Jury selection consumed the entire first day. On March 4 jury selection con- tinued and thereafter general instructions were given the jury by the court, the state made its opening statement, defendant reserved his opening statement, and the victim was sworn and testified. On Friday, March 5, the victim resumed her testi- mony, photographic exhibits and a wine bottle were introduced, the undersheriff testified, the jury examined the premises in- volved in the incidents forming the basis of the charges, and Dr. Coriell testified. Over the weekend, the county attorney called defense counsel and informed him that the state intended to present the X-rays and would, for that purpose, request the endorsement of a radiologist as an additional witness for the state. When court reconvened on Monday, March 8, the state moved to add the name of Dr. David Dahlgren, the radiologist who read the X-rays, as an additional witness for the state and represented to the court that the reason for the motion was the inability of Dr. Coriell to recall whether or not such X-rays were requested by him. The county attorney represented to the court that Dr. Coriell had not advised either the victim or her family of the findings of the X-rays by Dr. Dahlgren and these were entirely unknown either to the victim or the state. The county attorney represented he was surprised by Dr. Coriell's testimony. The motion was resisted by defense counsel on these grounds: (1) The presence of the witness and the X-ray had to have been known by the state from the onset of the trial, (2) the state did not furnish defense counsel with the name of the witness or the existence of the X-ray in response to the motion requiring this, (3) Dr. Coriell had not indicated the presence of the X-ray or the findings in his conversation with defense counsel, and (4) it changed the whole complexion of the trial and came as a surprise to defendant in the middle of the trial. Defense counsel moved for a week's continuance to take the X-ray to an independent radiologist in Missoula for exam- ination. Although some of the discussion went unreported in the record, it appears from the trial judge's reported remarks that defense counsel had already contacted Dr. Fritz in Missoula for this purpose. The court granted a one day continuance. No further request for additional time or continuance was made by defense counsel, nor was any objection made to the reduced time of continuance. Dr. Fritz was never called as a witness for defendant at the trial. The testimony of Dr. Dahlgren indicated he examined the X-rays and they indicated a nondisplaced fracture of the nose of the victim. On appeal defendant argues that the late disclosure of the X-rays and what they showed was permitted without a showing of "good cause" and prejudiced the defendant in defending himself after his theory of the case had been pre- pared and the case was in mid-trial. He argues the state by reasonable diligence could have discovered this evidence in advance of trial rather than waiting until the middle of the trial and "ambushing" defendant with a devastating and key piece of its evidence. In our view, the showing made by the state indicated surprise. The state represented it knew nothing about the findings of the X-rays and were surprised that Dr. Coriell did not testify as to the X-rays and what they showed. De- fendant's counsel stated the state failed to exercise reason- able diligence prior to trial in uncovering this information. This is a two-edged sword. Both the county attorney and de- fense counsel knew about the X-rays prior to trial. Apparently neither the state nor the defense knew what they disclosed. Lacking this information, their relevance and significance were unknown and unappreciated by either the state or the defense. While the state could have followed through, it relied on Dr. Coriell to cover this point. The defense could also have un- covered this information by requesting authorization for exam- ination of the X-rays, which they knew were at St. Joseph's Hospital. We cannot say that the showing by the state did not constitute "good cause" permitting the endorsement of the radiologist as a witness for the state under the circumstances here. We emphasize that there is nothing to indicate an intentional or deliberate withholding of evidence by the state. Such are not the facts here, and case rulings under such facts are not germane to this appeal. Defendant objects to the one day continuance rather than the week's continuance requested. At the time the one day continuance was granted, defense counsel had already contacted Dr. Fritz, the independent radiologist it sought to read the X-rays. When trial was resumed defendant gave no indication that he needed more time. He did not request an additional continuance. He simply proceeded with the trial without further objection. Under these circumstances, he will not be heard to say on appeal that the one day continuance was insufficient. We notedefendant has applied to the Sentence Review Board for a review of his sentence. This review has been de- ferred pending outcome of this appeal. The equity and uniform- ity of his sentence will be thoroughly reviewed and determined by that body following this appeal. We reserve jurisdiction to review the sentence thereafter. The judgment of conviction is affirmed. Justice Chief Justice L 7 ................................ Justices M r . J u s t i c e Daniel J. Shea dissenting: I would reverse the judgment of conviction and order a new t r i a l . While perhaps each of the claimed e r r o r s would not be s u f f i c i e n t i n i t s e l f t o constitute reversible e r r o r , when taken together I believe the defendant was denied a f a i r t r i a l . Because of the v o i r d i r e examination the past conduct of the defendant, unrelated t o the charges, was already i n f r o n t of the jury before the testimony s t a r t e d . (One juror s t a t e d he knew the defendant had been i n trouble before but he could s t i l l be f a i r and the other juror s t a t e d he had been i n j a i l with the de- fendant when the defendant had been charged with driving under the influence). It i s t r u e t h a t these comments were invited t o a degree by defense counsel, but t h i s s t i l l did not f r e e the t r i a l judge from assuring t h a t t h e future course of the t r i a l would not further poison the t r i a l atmosphere. As a s t e p i n assuring t h i s f a i r t r i a l , t h e t r i a l court should have granted the defense motion i n limine t o prevent t h e jury from knowing of defendant's past felony conviction. It i s c l e a r t h a t conviction, one of receiving stolen property obtained some 7 years before t h e present t r i a l when t h e defendant was 19 years of age, had no probative value on the issue of rape t h a t was being t r i e d . The sole reason f o r allowing the prosecution t o ask defendant i f he had ever been convicted of a felony was based on section 93-1901-11, R.C.M. 1947, a s t a t u t e which enacted the old common law r u l e t h a t one convicted of a felony i s l e s s worthy of b e l i e f , and accordingly t h e jury should know about the previous felony conviction. This statute is not a rule of substantive law; it is a rule of evidence. It does not declare that a previous felony conviction must be allowed in evidence; it simply states that it "may" be allowed in evidence. Whether to allow the previous conviction in evidence is a matter of discretion for the trial court, to be determined according to the circumstances of each case, keeping in mind that it is the ultimate duty of the trial court to assure each defendant a fair trial. This duty cannot be watered down by a blindfolded application of a statute, for the duty to assure a fair trial transcends the mechanical application of rules of evidence. Given the circumstances of this case, it was prejudicial error to allow the jury to consider the defendant's previous felony conviction. This error was compounded by two events occurring after the admission of this evidence. During settlement of jury instructions the prosecutor offered an instruction on how the jury was to consider evidence of a previous felony conviction, but it also contained law on other points already covered in the instructions. Defense counsel objected on that ground and the trial court refused the instruction. The prosecutor did not offer another instruction on the subject. While defense counsel did not offer an instruction on the point, nevertheless the cumulative evidence relating to defendant's bad conduct was such that the trial judge on his own motion should have given the jury a cautionary instruction. Furthermore, it was improper for the prosecutor to comment on the previous felony conviction in his final closing arguments where he did not cover the subject in his own opening arguments and defense counsel did not cover the subject in his own final arguments. Had the prosecutor discussed the felony conviction during his opening arguments defense counsel could have made an informed decision as to how to handle the matter. But at this stage of the arguments defense counsel could only object to an improper argument, and this would only have served to heighten and concentrate the jury's attention on his client's previous felony conviction. The prosecutor's remarks to which defense counsel could not respond, were: "You are to measure this case from the mouth of the witnesses who sat here. Is this girl telling the truth? You are judging her there. You are judging him sitting there also and you may consider the fact in judging his credibility the fact that he is a convicted felon. "Now, measure the truth.* * *I1 This combination of circumstances concerning defendant's past conduct, wholly unrelated to the case, deprived him of a , fair trial. It also was improper to allow the X-rays in evidence under the circumstances as exist in this case. This is not a case where, after due diligence was exercised, the prosecutor came up with additional evidence he did not know existed. I t is a case where the state had been rewarded for a total lack of diligence. Here, the prosecutor knew the X-rays existed but never bothered to determine if they had any evidentiary value until the middle of the trial. The prosecutor should have known the X-rays existed when he or his agents talked to the complaining witness to determine if there was probable cause for a criminal complaint. In any event, he most certainly knew the X-rays existed when the defense deposed the complaining witness and she testified X-rays were taken of her nose at St. Joseph's Hospital. But the first time the prosecutor bothered t o determine i f the X-rays had any evidentiary value was a f t e r both the complaining witness and her mother testified a t the t r i a l that X-rays had been taken, even though the treating doctor, D r . Coriell, testified he could not recall whether he had ordered X-rays. It was only a f t e r t h i s testimony that an effort was made t o see what the X-rays contained. I disagree with the majority that the s t a t e was legitimately surprised because it expected D r . Coriell t o t e s t i f y a t the t r i a l as to the X-rays and the results. Since the state had never discussed the X-rays with him before t r i a l (in fact, h i s medical report did not even mention X-rays), it i s illogical t o conclude the s t a t e expected D r . Coriell t o cover the subject of X-rays a t the t r i a l . Furthermore, I think the s t a t e ' s failure to comply with discovery concerning the X-rays would have precluded the s t a t e from using D r . Coriell or anyone else t o testify concerning the X-rays and the results. Before t r i a l the defense moved to discover a l l "documents, papers and things" that the prosecution intended t o introduce a t t r i a l , and the court so ordered, with no objection from the state. A t no time were the X-rays listed as a potential exhibit and a t no time before t r i a l was the defense ever given notice the s t a t e intended t o introduce X-rays i n evidence. One of the very purposes of the discovery statutes i s to prevent surprise, and here the defense was totally justified i n believing the s t a t e was not going t o introduce any X-rays i n evidence. Accordingly, the t r i a l court was i n error when it allowed the endorsement of the radiologist on the Information to get the X-rays and the results i n evidence. For the foregoing reasons I would reverse the judgment of conviction. w Just ice.

May 3, 1977

00b3e45c-891f-43f1-81da-9297f79bd841

QUINN v BRIGGS

N/A

13354

Montana

Montana Supreme Court

N o . 13354 I N T H E SUPREME COURT O F THE STATE OF M O N T A N A 1977 MIKE T. Q U I N N , P l a i n t i f f and Respondent, GEORGE H A R O L D BRIGGS, LELAND RICHARD BRIGGS, JOHN W. BRIGGS, and ROBERT HUGH BRIGGS, Defendants and A p p e l l a n t s . Appeal from: D i s t r i c t Court o f t h e F i f t h J u d i c i a l D i s t r i c t , Honorable Frank E. B l a i r , Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t s - K l i n e and , Helena, Montana John R. R l i n e a r g u e d , Helena, Montana Schulz, Davis and Warren, D i l l o n , Montana C a r l Davis a r g u e d , D i l l o n , Montana For Respondent : Leaphart Law Firm, Helena, Montana C. W. L e a p h a r t argued and W. W i l l i a m L e a p h a r t appeared, Helena, Montana John H. J a r d i n e a r g u e d , W h i t e h a l l , Montana Submitted: J a n u a r y 2 0 , 1977 Decided: -KAY 11 1977 F i l e d : L A Y I : y,r Mr. Justice Gene B. Daly delivered the Opinion of the Court. Plaintiff brought this action in the district court, Beaverhead County, in equity to rescind a contract to recover $ 1 0 0 ' , 4 0 0 ' . 0 0 ' in payments and to cancel a promissory note for $150,000.00. Defendants counterclaimed seeking enforcement of the $150,000.00 promissory note and attorney fees for defense of the contract. The district court ordered rescission of the con- tract, restitution of the $100,000.00 in payments, cancellation of the promissory note and denied defendants any recovery on their counterclaim. The controlling issue is whether plaintiff is en- titled to relief on the ground of unilateral mistake. Plaintiff Mike T. Quinn is a cattle rancher and speculator in ranch real estate. He buys ranch properties for resale, rather than long term investment. Defendants are the majority stock- holders of Briggs Ranch, Inc., a Montana corporation, located south of Dillon, Montana and engaged in the ranching business. In December 1973, plaintiff visited the Briggs Ranch to inspect cattle which he was interested in purchasing. Plaintiff was accompanied by Bruce Mecklenburg, a licensed real estate broker. Mecklenburg informed plaintiff the Briggs Ranch was for sale. Plaintiff expressed an interest in purchasing and returned to the ranch several times to inspect the holdings of Briggs Ranch Inc. At the recommendation of Mecklenburg, plaintiff met with an attorney from Bozeman, Montana. Plaintiff, Mecklenburg and the attorney discussed the aspects involved in purchasing Briggs Ranch Inc. Subsequent to this initial meeting, plaintiff conferred with the attorney and discussed in particular ( 1 ) the large dollar value involved in the purchase; ( 2 ) the fact the proposed sale agreement was for the purchase of corporate stock, as opposed t o the purchase of assets; (3) the number of c a t t l e involved i n the ranch operation; (4) the possibility of forfeiture i n the event that $50,000.00 was paid i n under the sale agreement and p l a i n t i f f was unable t o make the second payment; and (5) general tax consequences associated with the purchase of corporate stock. O n February 18, 1974, p l a i n t i f f , p l a i n t i f f ' s attorney, Mecklenburg and George Harold Briggs met with defendants' attorney a t h i s office with the intent of negotiating the sale of Briggs Ranch Inc. A substantial part of the day involved the discussion and explanation of the sale agreement entitled "AGREEMENT TO PUR- C H A S E S T O C K O F BRIGGS RANCH, INC.". The culmination of these nego- tiations was the execution of the sale agreement; the execution of the memorandum entitled "MEMORANDUM O F U N D E R S T A N D I N G A S TO AGREEMENT T O P U R C H A S E S T O C K O F BRIGGS RANCH, INC." ; and p l a i n t i f f ' s tender of $50,000.00. The sale agreement provided for the purchase of 5,000 shares of common capital stock, which comprised a l l of the issued and outstanding shares of Briggs Ranch, Inc. The purchase price was $6,550,000.00 :and payment* was provided for in. the -agreement. "(b) Buyer s h a l l pay said purchase price as follows: " (1) Fifty Thousand and 00/100 Dollars (50,000.00) upon execution of t h i s Contract, receipt of which is herewith acknowledged. "(2) T w o Hundred Thousand and 00/100 Dollars ($200,000.00) O n June 1, 1974. "(3) One Million Three Hundred Thousand Dollars, ($1,300,000.00) not l a t e r than the 2nd day of January, 1975. In the event that Buyer f a i l s t o make any payment called for herein and/or f a i l s t o deposit a sufficient amount i n escrow a s provided i n paragraph 3 t o satisfy Briggs Ranch, Inc.'s obligations a s agreed in paragraph 1 7 , on or before 5:00 o'clock P.M. on said 2nd day of January, 1975, t h i s Contract shall end and be of no further force and effect a t the time and on the date of Buyer's default, and Sellers shall have no further obligation under t h i s Contract and Sellers s h a l l retain a s liquidated damages for the breach of said Contract the payment o r -* payments made t o the time of default. "(4) The balance of the purchase price i n the amount of $5,000.000.00 shall be satisfied by note executed by Buyer and by Briggs Ranch, Inc . , payable on the basis of 20 equal annual amortized installments of principal and interest. Interest a t the r a t e of 7-112% per annum s h a l l be paid monthly. The interest on said $5,000,000.00 s h a l l commence and s h a l l run from the 31st day of December, 1974; the f i r s t such monthly payment s h a l l be due on-or before the 31st day of January, 1975, and each payment thereafter s h a l l be due on or before the l a s t day of each succeeding month. The annual principal payments shall commence on the 31st day of December, 1975, and s h a l l be payable on the 31st day of December each and every year thereafter u n t i l the unpaid balance, plus interest a t the r a t e of 7-112% per annum i s paid i n f u l l , and i n any and a l l events, on $ . . or before the 31st day of December, 1984, upon which l a s t mentioned date there s h a l l be a 'balloont payment of the entire unpaid balance of principal and interest." The sale agreement further provided that, upon the purchase of the corporate stock, plaintiff was t o assume certain debts of Briggs Ranch, Inc .': "17. R E C E A S E F R O M E S C R O W : "The 5,000 shares of Briggs Ranch, Inc., stock s h a l l be released to the Buyer a t such time a s the Federal Land Bank Mortgage has been satisfied by Buyer through Briggs Ranch, Inc., and the payment contemplated by paragraph 2.(b) (3) has been paid t o the Sellers on January 2, 1975. I n t h i s regard, it i s further agreed among the parties that: I' (a) Buyer shall use the money deposited i n escrow on January 2, 1975, t o cause Briggs Ranch, Inc., t o s a t i s f y its indebtedness t o the Federal Land Bank. I n t h i s regard Buyer warrants that he knows the principal amount of the Federal Land Bank mortgage t o be $850,254.88, and the amount of the accrued interest thereon t o January 2, 1975. Buyer agrees and does hereby assume the oblipation of the payment of the said $850,254.88 principal and a l l interest accruing from and a f t e r January 1, 1974, t o the date of payment i n f u l l on January 2, 1975. It i s further understood that Buyer shall obtain and record a Release of Mortgage from said Federal Land Bank. It is further understood that Briggs Ranch, Inc., owns 9,750 shares of Federal Land Bank stock worth $5.00 per share, for a t o t a l amount of $48,750.00, which shall be credited upon the Federal Land Bank loan upon payment in f u l l . During the term of t h i s Contract said Buyer shall keep a l l of the real property presently owned by Briggs . . Ranch, Inc., free and clear of a l l liens, mortgages or other encumbrances, other than the mortgage granted t o Sellers and except that the Havasu and Texas properties may be dealt with by Buyer as Buyer sees f i t . "(b) A t such time a s the Buyer s a t i s f i e s the Note s e t forth on Exhibit 'D' i n f u l l , the contents;, of the escrow shall be delivered to the Buyer." (Emphasis added,) Under paragraph 4(b) of the sale agreement -- " C O R P O R A T E PROPERTIES" appears : "(b) The Texas farm, described on Exhibit 'B' attached hereto, and the Lease thereon which expires December 31, 1977. Sub.ject t o that certain Mortpage i n the amount of approximately $27,000.00, plus interest t o date, said Mortgage to remain an obligation of Briggs Ranch, Inc., o r i t s successor i n interest, a f t e r the sale of the stock contemplated herein and t o which Sellers are relieved from any obligation thereon by Buyer." (Emphasis added.) The contract further specified the manner by which p l a i n t i f f would acquire possession of the stock c e r t i f i c a t e s and the ranch premises : "3. DELIVERY O F S T O C K AND P A Y M E N T O F P U R C H A S E PRICE: "The c e r t i f i c a t e s for the shares of capital stock sold hereunder s h a l l be delivered t o the escrow agent named hereafter, on the 31st day of December, 1974, upon acknow- ledgement to the Sellers by the Buyer before December 15, 1974, that (a) the payment called for i n paragraph 2.(b)(3) w i l l be made on January 2, 1975; (b) that the note and mortgage specified i n paragraph 2.(b)(6) has been executed by the Buyer and Briggs Ranch, Inc. ; (c) that a sufficient amount w i l l be deposited with the escrow agent t o satisfy the Federal Land Bank loan referred to i n paragraph 17. I n the event Buyer informs Sellers that the payments speci- fied i n paragraph 2.(b)(3) w i l l be met and Buyer f a i l s t o make said payments on January 2, 1975; i n addition t o the forfeitures specified i n said paragraph 2(b)(3) Buyer w i l l be responsible for payment t o Sellers of a l l legal and escrow costs incurred i n preparing documents and setting up the escrow and a l l income taxes caused by Sellers' repossession of the stock sold herein." "5. POSSESSION: "Possession of the premises owned by the Corporation, except as noted herein, shall be surrendered on the 31st day of December, 1974, or as soon thereafter as it i s physically possible for the Buyers t o assume the complete operation of the ranch. It i s understood that Sellers w i l l cooperate with Buyer and stay on the premises and help with the operation for a reasonable time a f t e r December 31, 1974, t o assure a smooth transition i n the management of the operation. I I Subsequent t o executing the sale agreement with .defendants, p l a i n t i f f executed two contracts drafted by h i s attorney. One of the contracts, dated February 18, 1974, and entitled "CONTRACT F O R LEGAL SERVICES", provided that p l a i n t i f f and Mecklenberg would pay t h e i r attorney legal fees a t specified rates for the performance of legal work arising out of the ~ r i g g s / ~ u i n n sale. This contract further provided that the attorney would receive $25,000.00 upon resale of the Briggs Ranch. The second contract, also dated February 18, 1974, and entitled " A G R E E M E N T " acknowledged Mecklen- burg's e f f o r t s i n the completion of the sale of Briggs Ranch, Inc. The contract provided Mecklenburg be compensated for a l l expenses incurred i n the resale or attempted resale of Briggs Ranch, Inc. and i n lieu of a r e a l estate commission that p l a i n t i f f and Mecklen- burg divide on an even basis any p r o f i t realized from the resale of Briggs Ranch, Inc. Prior t o the June 1, 1974, contract payment deadline, p l a i n t i f f realized he could not tender the required $200,000.00 payment. O n June 1, 1974, p l a i n t i f f tendered $50,000.00 and a promissory note i n the amount of $150,000.00. Mecklenburg continued t o offer the Briggs Ranch for sale u n t i l December 9, 1974. O n Oecember 17, 1974, plaintiff executed a notice of ~ s d s s i o n which was delivered t o defendants' attorney. Thereafter, p l a i n t i f f f i l e d h i s action for rescission i n the d i s t r i c t court, Beaverhead County. O n January 13, 1976, the d i s t r i c t court s i t t i n g without a jury, heard the action t o rescind the AGREEMENT TO P U R C H A S E S T O C K O F BRIGGS RANCH, INC. The d i s t r i c t court found that p l a i n t i f f , a t the time of the execution of the sale agreement (1) did not understand that he was buyinglthe corporate stock of Briggs Ranch, - 6 - Inc. ; ( 2 ) did not appreciate the consequences that flow from a stock purchase, as opposed to an asset purchase; ( 3 ) believed the purchase price of Briggs Ranch to be $6,550,000.00; ( 4 ) failed to comprehend there would be additional payments required of him in order to satisfy the $27,000.00 Texas farm mortgage and the $850,254.88 indebtedness to the Federal Land Bank; and ( 5 ) did not appreciate the tax consequences associated with the purchase of capital stock. The district court concluded: Plaintiff executed the sale agreement under mistakes of fact; that the mistakes of fact were not caused by plaintiff's neglect of a legal duty, but occurred regardless of plaintiff's exercise of ordinary care; that it would be unconscionable to enforce the sale agreement; and defendants would be unjustly enriched if the sale agreement was enforced. Defendants appeal from the district court's judgment ordering ( 1 ) rescission of the sale agreement; ( 2 ) restitution from defendants in the amount of $100,000.00; ( 3 ) cancellation of the promissory note for $150,000.00;and ( 4 ) that defendants recover nothing from plaintiff on their counterclaim. For the following reasons the judgment of the district court is reversed. A party to a contract cannot avoid the contract on the ground that he made a mistake where there has been no misrepresentation, no ambiguity in the terms of the contract and the other party has no notice of such mistake and acts in good faith. Furthermore, even if one of the contracting parties believes the words of the contract mean something different, the parties to the contract are bound by the plain meaning of the words used in the agreement as properly interpreted, unless the other party knows of such mis- take. 17 Am Jur 2d, Contracts $ 5 146,148. One who executes a written contract is presumed to know the contents of the contract and to assent to those specified terms, , in the absence of fraud, misrepresentation, or other wrongful act by the other contracting party. Absent incapacity to con- tract, ignorance of the contents of a written contract is not a ground for relief liability. Parchen Chessman, 4 9 Mont . 326, 142 P . 631; Ferd L . Alpert Industries, Inc. v . Oakland Metal Stamping Co., 3 Mich.App. 101, 141 N.W.2d 671, reversed on other grounds, 379 Mich.272, 150 N.W.2d 765. If a contracting party acts negligently . and in such a manner as to lead others to suppose that the writing is assented to by him, the contracting party will be bound in law and in equity, even though the contracting supposes the writing instrument of an entirely different character, 17 Am Jur 2d, Contracts 5149; Hjermstad v. Barkuloo, 128 Mont. 88, 270 P.2d 1112. The integrity of written contracts would be destroyed if contracting parties, having admitted signing the instrument, were allowed to rescind the contract on the basis they neither read nor understood the expressed agreement. Ryan v. Ald,Inc., 149 Mont. 367, 427 P.2d 53. Section 13-903, R . C . M . 1947, sets forth the grounds for rescission of contract: "When party may rescind. A party to a contract may rescind the same in the following cases only: "1. If the consent of the party rescinding, or of any party jointly contracting with him was given by mis- take, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the con- tract jointly interested with such party; "2. If, through the fault of the party as to whom he rescinds, the consideration for his obligation fails, in whole or in part; "3. If such consideration bec~mes entirely void from any cause; " 4 . If such consideration, before it is rendered to him, fails in a material respect, from any cause; or 3 "5. By consent of all the other parties." Plaintiff contends he executed the sale agreement under mistakes of fact as to the character of the property being sold and the purchase price of the property. In addition, plaintiff claims he acted without understanding the tax consequences of the purchase, a mistake of law. For plaintiff to avoid the sales agreement he must show that his unilateral mistakes meet the standards set forth in sections 13-313,314, R.C.M. 1947, which provide : "13-313. Mistake of fact. Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake,-and consisting in: 1 . An unconscious ignorance or forgetfulness of a fact, past or present, material to the contract; or, "2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed." "13-314. Mistake of law . Mistake of law constitutes a mistake, within the meaning of this chapter, only when it arises from: "1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or, "2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.'' Here, the evidence fails to support plaintiff's contention that he executed the sale agreement under mistakes of fact. The sale agreement clearly and specifically sets forth the subject matter of the sale agreement, the purchase price of the capital stock and the debts assumed by the buyer. Furthermore, defendants' counsel spent considerable time in explaining the provisions of the sale agreement prior to executing the instrument. Plaintiff, Mecklenburg and their attorney were in attendance and partici- pated in the clarification and execution of the sale agreement and the execution of the memorandum of understanding. If plaintiff failed to understand the terms of the sale agreement it was not due to any misrepresentations on the part of defendants. Under these circumstances, neither plaintiff's purported inability to comprehend the terms of the sale agreement nor his failure to procure adequate advice can be attributed to defendants, Plaintiff was under a legal duty to execute the sale agreement with the prudence and care of a reasonable and cautious businessman. Having failed to exercise such care, plaintiff cannot seek relief from a court of equity on the ground of unilateral mistake of fact. Similarly, plaintiff's argument that he executed the sale agreement without appreciating the tax consequences falls short of the standard required to avoid a contract. Section 13-314, R.C.M, 1947, provides that a mistake of law is ground for relief only when there is a misapprehension of the law by all parties or a misapprehension of the law by one party with the knowledge of the other contracting party. Clearly, defendants were aware of the tax consequences flowing from the sale agreement. Plaintiff, on the other hand, never brought to defendants' attention the fact that he was either unaware of the tax consequences or unable to understand the tax consequences, Under these circumstances, equitable relSef cannot be utilized to rescind the contract. We conclude that plaintiff is bound by the terms of the agreement to purchase stock of Briggs Ranch, Inc. Plaintiff's filing of the notice of re'scission and failure to tender pay- ments pursuant to the sale agreement amounted to a material breach of contract and plaintiff is to recover nothing. In view of the express terms of the sale agreement providing for the payment of defendants' attorney fees, the matter of attorney fees is remanded to the district court to determine reasonable attorney fees and costs. The judgment of the district court is reversed and the cause is dismissed. /' Justice. We Concur: ~ h y e f Justice Justices. C/

May 11, 1977

4ce7529c-9d7a-4268-b4a4-ae5bf0fdc055

MATTER OF RATZLAFF

N/A

13721

Montana

Montana Supreme Court

No. 13721 I N T H E SUPREME COURT O F T H E STATE O F MONTANA 1977 Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable Charles Luedke, Judge p r e s i d i n g . Counsel of Record: For Appellant: W. A r t Graham, Legal I n t e r n , argued, Missoula, Montana David J. P a t t e r s o n argued, Missoula, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Allen C h r o n i s t e r argued, A s s i s t a n t Attorney General, Helena, Montana Harold Hanser, County Attorney, B i l l i n g s , Montana Submitted: A p r i l 15, 1977 Decided: JuN - 2 1 9 n 1 F i l e d : ~ U N . 2 ' 5 ; - Mr. Justice Frank I, Haswell delivered the Opinion of the Court. This is an application for post-conviction relief by an inmate of the Montana State Prison. He seeks to void an order of the district court, Yellowstone County, revoking a Sentence Review Division suspension of his sentence. On December 13, 1972, petitioner Robert John Ratzlaff was convicted of the crime of robbery by jury verdict in the district court of the thirteenth judicial district, County of Yellowstone, Billings, Montana. On January 3, 1973, Hon. Charles Luedke, district judge, sentenced petitioner to 25 years in Montana State Prison with credit given for time already served. Petitioner sought reduction of his sentence from the Sentence Review Division. On November 7, 1974, the Sentence Review Division ordered that "* * * THE LAST 10 YEARS OF SAID SENTENCE IS HEREBY SUSPENDED." An amended judgment and commitment conforming thereto was ordered on November 21 by Hon. Robert J. Boyd, district judge, third judicial district, which encompasses Powell County, where the state prison is located and the Sentence Review Division sits. On June 9, 1975, petitioner was paroled from Montana State Prison. While on parole in August 1976, petitioner was charged with violating the conditions of his parole. In a preliminary hearing held by a hearing officer for the Montana Board of Probation and Parole, probable cause that violations had occurred was found. The Yellowstone County attorney petitioned the district court of Yellowstone County to revoke the suspension of sentence previously granted by the Sentence Review Division. At the hearing, petitioner objected to the jurisdiction of the district court to determine the matter. On October 4, 1976, Judge Luedke entered a finding that petitioner had violated his parole and ordered the suspension of sentence by the Sentence Review Division revoked. Subsequently, the Montana Board of Pardons revoked peti- tioner's parole following a hearing. Petitioner is now incarcerated at Montana State Prism under his original 25 year sentence. Petitioner has applied to this Court seeking to have the district court's order revoking suspension of his sentence declared void. Three issuesof law are presented for decision: ( 1 ) Does the district court have jurisdiction to revoke a suspension of sentence granted by the Sentence Review Division? ( 2 ) Does the district court have jurisdiction to revoke a suspension of sentence for violation of parole conditions imposed by the Board of Pardons? (3) Does revocation of a suspension of sentence by the district court after petitioner had begun serving a lawfully suspended sentence violate the double jeopardy provisions of the federal and state constitutions? Petitioner argues the district court has no jurisdiction to revoke suspension of a sentence granted by the Sentence Review Division. He points out that section 95-2503, R . G . M . 1947, expressly provides that the decision of the Sentence Review Division is final; that revocation of such suspension of sentence is contrary to the purpose of the Sentence Review Division in that it permits the original sentencing court, with a potential for vindictive treatment of the offender, to nullify the decision of the Division; and, that only the court which suspended the sentence has power to revoke the suspension under section 95-2206, R . C . M . 1947. Section 95-2503 provides in pertinent part that the "decision of the review division in each case shall be final." This is not' equivalent to a prohibition against revocation of its suspension of sentence by reason of defendant's subsequent conduct violating the conditions of suspension. The conditions of suspension, although not expressed in the Division's order or the amended judgment, sentence and commitment of Judge Boyd in conformity therewith, are necessarily implied as the power to suspend without probation has been held not to exist. State ex rel. Foot v . Dist. Ct., 72 Mont. 374, 233 P . 957. The conditions are found in the regulations of the Board of Pardons, MAC 2 0 - 3 . 1 0 ( 6 ) - S10060, and it is these conditions that Judge Luedke found petitioner had violated. which form the basis for revocation of the suspension. Thus the Division's deci- sion was not nullified by the action of the district court, but on the contrary was recognized and given effect in conformity with its conditions. The potential for vindictive treatment of the offender at a revocation hearing appears no greater here than where the suspen- sion was granted by the original sentencing court under section 95-2206, both before and after its amendment in 1974. There is nothing in this record to even remotely suggest the presence of such factor. Nor do we find such abstract potential to contravene the purposes of the Sentence Review Division. The Division consists of three district judges who are simply not in an adversary position vhmds- their colleagues whose sentences they review. Section 95-2206 provides in pertinent part: "Any judge who has suspended the execution of a sentence * * * of imprisonment under this section, or his successor, is authorized thereafter, in his discretion, during the period of such suspended sentence * * * to revoke such suspel~sion * * * . ' I Although this statute grants the power of revocation to a district judge who has suspended a sentence of imprisonment, it does not necessarily withhold such power where the suspension is granted by the Sentence Review Division. We note there is no grant of the power of revocation to the Division. Sections 95-2501 through 95-2504, R . C . M . 1947. As the Division operates only on petition of the defendant (section 95-2502), constitutional due process and double jeopardy problems would arise if the state were permitted to initiate proceedings there. These considerations persuade us to adopt the view that the Division lacks jurisdiction over a revo- cation proceeding initiated by the state. If the Division lacks jurisdiction to hear the state's petition to revoke a Division-imposed suspension of sentence, who but the district court has that power? The district court is a court of general jurisdiction. The revocation of a suspension of sentence leaves the defendant subject to execution of the original sentence, as though it had never been suspended. Roberts v . United States, 320 U . S . 264, 64 S . C t . 113, 8 8 L ed 41. If the district court has no jurisdiction to revoke, a suspension ordered by the Division would amount to a pardon rather than a suspended sentence as the conditions of suspension would be a nullity for lack of power to enforce them. In the absence of an express statute governing revocation of sus- pended sentences imposed by the Division, we hold the original sen- tencing court has the implied power and jurisdiction to hear and decide revocation petitions concerning Division-imposed suspensions. Petitioner further contends the Board of Pardons, not the district court, has jurisdiction to revoke a suspension of sentence for violation of parole conditions imposed by the Board of Pardons. He argues that where the court imposes no conditions upon suspension of sentence, the Board of Pardons gained the power to impose conditions of probation and to supervise the defendant's proba- tionary period and as a consequence the power to determine viola- tions is clearly in the Board of Pardons. Petitioner overlooks the dual nature of the conditions imposed by the Board of Pardons. The conditions found in the regulations of the Board of Pardons, MAC 2 0 - 3 . 1 0 ( 6 ) - S10060, were conditions of suspension of sentence as well as parole conditions. Section 94-9830, R . C . M . 1947, since repealed,was in effect when the Sentence Review Board suspended the sentence of petitioner and provided : "The board [of pardons] may adopt general rules or regulations concerning the conditions of probation or suspension of sentence. Such conditions shall apply in the absence of any specific or inconsistent conditions imposed by a court. Nothing herein con- tained shall limit the authority of the court to impose or modify any generhl or specific conditions of probation or of suspension of sentence." (Bracketed words supplied.) Petitioner concedes that this statute caused the conditions set forth in MAC 2 0 - 3 . 1 0 ( 6 ) - S10060 to be imposed upon him when the Sentence Review Division suspended sentence. We do not dispute petitioner's claim that the Board of Pardons has discretion to determine when parole violators should be returned to the Montana State Prison. In fact, the Board has done- this in petitioner's case. But the ~oard's supervisory powers over petitioner do not divest the district court of jurisdiction to hear and determine whether petitioner has also violated the condi- tions of suspension of his sentence and revoke such suspension where violation has occurred. For reasons heretofore noted, this juris- diction is vested in the district court. Here the district court acted in conformity with this jurisdiction rather than for violation of parole. The final issue is whether the district court's revocation of the suspension of sentence contravened double jeoparty prohi- bitions in the federal and state constitutions. Petitioner argues that after he had commenced serving the 25 year sentence with 10 years suspended, the sentence was increased to the full 25 years and this imposed a second punishment for the same offense, citing Ex parte Lange, 85 U . S . (18 Wall.) 163, 21 L ed 872 and Kohlfuss v . Warden, 149 Conn. 692, 183 A . 2 d 626. The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This prohibition is applicable to state action under the "due process" clause of the Fourteenth Amendment to the United States Constitution. North Carolina v. Pearce, 395 U . S . 711, 89 S . C t . 2072, 23 L ed 2d 656. It protects offenders from multiple punishment for the same offense. Ex parte Lange, supra; United States v . Benz, 282 U . S . 304, 51 S.Ct. 113, 75 L ed 354. Montana' s constitutional provision is substantially similar providing that "No person shall be again put in jeopardy for the same offense * * *." Art. 11, Section 25, 1972 Montana Constitution. However, revocation of suspension of a sentence does not constitute a second punishment for the same offense. A defendant under a suspended sentence lives with the knowledge that "a fixed sentence for a definite term hangs over h i m . " Roberts v . United States, supra; State ex rel. Bottomly v . District Court, 73 Monte 541, 237 P . 525. The defendant's subsequent conduct, not his original offense, forms the basis of revocation and reinstates the original sentence. Petitioner is not being punished twice for the same offense. For these reasons Lange and Kohlfuss are inapplicable. Petitioner' s application for post-conviction relief is denied and this proceeding is dismissed. Justice . ? : ( > - 2 '- Hon. James M . Salansky, ~ist)i?ict ~udge, sitting for Chief Judice Paul G . Hatffeld.

June 2, 1977

d2010623-5a5d-4605-b8f4-06201cc012e5

KEARNS v McINTYRE CONSTRUCTION CO

N/A

13405

Montana

Montana Supreme Court

No. 13405 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A 1977 JACK KEARNS, P l a i n t i f f and Respondent, McINTYRE CONSTRUCTION COMPANY, a corporation and S. BIRCH INC., a c o r p o r a t i o n , Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t , Honorable Arnold Olsen, Judge p r e s i d i n g . Counsel of Record: For Appellants: J a r d i n e , Stephenson, B l e w e t t and Weaver, Great F a l l s , Montana Alexander B l e w e t t argued, Great F a l l s , Montana For Respondent: C o r e t t e , Smith and Dean, Butte, Montana Kendrick Smith argued, Butte, Montana Submitted: March 17, 1977 Decided : 'JUL 2 8 1977 F i l e d : < j i ~ ~ 2, ,-, '971 Mr. Justice Gene B. Daly delivered the Opinion of the Court: Defendants appeal from the final judgment of the district court, Silver Bow County. The district court, sitting without a jury, found for plaintiff and decreed that plaintiff recover from defendants the full amount of plaintiff's alleged damages, $9,160.01, with interest, plus costs in the amount of $19.40. Plaintiff brought this action to recover money damages for injuries purportedly caused by defendants to plaintiff's real and personal property. The injuries occurred on a ranch near Melrose, Montana, owned by plaintiff. A portion of the ranch was condemned by the State of Montana for the purpose of constructing a highway. Defendants, acting in a joint venture, contracted with the State Department of Highways, to construct the new highway. To complete its highway construction contract, it was necessary for defendants to obtain quantities of gravel and borrow (earth taken from one location to be used for fill at another location). Defendants entered into two written contracts with plain- tiff. The first contract, executed on May 17, 1972, hereinafter referred to as the gravel agreement, gave defendants the right to remove rock, gravel, sand and earth from plaintiff's land for the price of 4$ per ton. The contract specified: (1) The area on plaintiff's land from which these materials were to be taken, ( 2 ) granted defendants the right of ingress and egress to remove these materials, and (3) that defendants could extract as much gravel material from plaintiff's property as they deemed necessary to satisfy their construction needs, with a required minimum quantity of 110,000 tons. The second contract, apparently executed on May 16, 1972, hereinafter referred to as the borrow agreement, gave defendants the right to remove borrow material, consisting of rock, gravel, silt, sand and earth, from a specified tract of plaintiff's land for the price of 26 per cubic yard. The contract granted defendants the right of ingress and egress to extract as much borrow material as defendants deemed necessary to satisfy their construction needs. Defendants, as additional consideration, agreed to provide the services of land scrapers, levelers and rippers for a specified period of time. This action was commenced on September 4, 1974, when plaintiff filed his original complaint. The original complaint sought to recover money damages in the amount of $16,611.90, plus costs. Subsequent to the filing of the original complaint, plain- tiff and defendants settled certain claims which were asserted. On March 21, 1975, plaintiff filed an amended complaint, recog- nizing and acknowledging defendants had paid to plaintiff the sum of $3,295.90, and sought further money damages in the following amounts : "6 . "That in addition to the amount of $288.00 due from Defendants to Plaintiff as alleged in Paragraph 5, there are other sums due by reason of damages caused by Defendants to Plaintiff as follows: "a. Defendants have failed to restore the Plaintiff's fields where they were cut down and damaged by Defendants' trucks; "b. Defendants damaged a crossing-pipe belonging to Plaintiff when a fuel truck got stuck; "c. Defendants cut, removed, and de- stroyed a 12" irrigation pipe 40' long, and in attempting to repair the irrigation line made an improper installation resulting in leaking of the irrigation pipeline and causing dirt, gravel, and rocks to fill in said pipeline. "d. Defendants failed to put gravel on the ditch road as agreed. "e. Defendants failed to do repair work on the lane as agreed. "f. Defendants damaged 43 acres of land because Defendants created a situation where Plaintiff was unable to shut off irrigation water on said lands which will require disking, harrowing, and seeding. "g. Defendants in connection with backsloping failed, neglected, and re- fused to do the same in a careful and prudent manner to the Plaintiff's damage for necessary backsloping, repair of fences, and installing drainage facilities. "h. Defendants carelessly and negli- gently shut off, or failed to supply, water for hay production to Plaintiff's damage. "And that all of said acts of the Defendants were to the Plaintiff's additional damage in the amount of $9,258.68." Subsequent to the filing of the amended complaint, defen- dants effected discovery through written interrogatories and plaintiff's deposition. On April 9, 1975, defendants filed a motion to dismiss. The trial court record fails to disclose any ruling by the district court on this motion. On April 21, 1975, defendants answered plaintiff's amended complaint. Defendants' answer generally denied plaintiff's allegations yet admitted defendants' past indebtedness to plain- tiff in the amount of $9,611.90, subject to an offset in the amounts of $6,316.00, which comprised the cost of installing 350 feet of irrigation pipe at $12.00 per lineal foot, and $2,116.00, the cost for land leveling services performed by defendants. Defendants further denied any indebtedness alleged in paragraph 6, subsections (a) , (b) , (c) , (f) , ( g ) , and (h) of plaintiff's amended complaint since those claims were barred by the statute of limitations, section 93-2607(2), R.C.M. 1947. On November 12, 1975, defendants filed a motion for summary judgment pursuant to Rule 56, I4.R.Civ.P. Briefs were submitted in support of and in opposition to defendants' motion for summary judgment. On January 9, 1976, the district court issued its order summarily denying defendants' motion. The district court failed to file any opinion or memorandum in support of its order denying defendants' motion for summary judgment. On January 19, 1976, plaintiff filed a motion to amend his amended complaint. The motion specifically sought amendment of subsections (a), (b), (c), (f), (g) and (h) of paragraph 6 of the amended complaint. The district court heard the motion to amend the amended complaint on the morning of trial, January 26, 1976. Defendants objected to any amendment of the amended complaint on the grounds the original complaint and the first amended com- plaint sought recovery on a tort theory and not on a contract theory, which was the effect of the proposed amendments. Defendants contended the purpose of the amendments was to overcome the obstacle of the statute of limitations, the basis for defendants' motion for summary judgment. Plaintiff resisted defendants' objections on the grounds the doctrine of implied provision of written con- tracts and the doctrine of third-party beneficiary contracts supported the motion to amend. On January 26, 1976, this cause went to trial on the legal theories set forth in the amended complaint, as further amended by the motion to amend. At the conclusion of trial, both parties submitted proposed findings of fact and conclusions of law. On May 6, 1976, the district court entered judgment in favor of plaintiff, decreeing that plaintiff recover $9,160.01, with interest accruing on item (g) ($667.00) from October 1, 1973, while interest on all other items ($8,493.01), was to accrue "from at least October, 1972, (some of the Items having been in May and June of the same year)". The amount sought as damages in subsection (b) of paragraph 6 is excluded from the judgment, defend- ants having voluntarily paid the sum of $98.67 to plaintiff. In its findings of fact and conclusions of law the district court held the gravel and borrow agreements, when reasonably construed and interpreted, contained the implied obligation that defendants were to use reasonable care in working in and upon plaintiff's ranch; to leave the ranch premises in good condition; and to refrain from unreasonably damaging plaintiff's land. The district court concluded defendants had breached express contracts, implied contracts and third-party beneficiary contracts, entitling plaintiff to full recovery for his damages. Defendants present five issues for review: 1. Whether the district court erred when it failed to grant defendants' motion for summary judgment? 2. Whether the district court erred when it permitted plaintiff to amend his previously amended complaint on the day of trial? 3. Whether there was sufficient evidence to support the district court's findings of fact, conclusions of law and judgment? 4. Whether the district court erred in entering findings of fact, conclusions of law and judgment in plaintiff's favor on particular claims when there were no pleadings to support such findings, conclusions and judgment? 5. Whether the district court erred in its rulings on the admissibility of the following evidence: a) Admitting into evidence a letter from plaintiff's counsel to defendants' counsel which specified the alleged damages and their respective estimated monetary worth. b) Allowing plaintiff's testimony adopting the estimates embodied in the letter. c) Admitting into evidence a copy of a written estimate of damages when the preparer of the estimate was not present in court during the trial. d) Allowing plaintiff's testimony adopting the written estimate of damages. e) Allowing plaintiff to testify to an estimate of damages, the estimate was in the form of an out-of-court oral statement by a third party, and allowing plaintiff's testimony adopting the estimate. f) Admitting par01 evidence to alter the terms of the gravel and borrow agreements. Defendants inittally contend the district court erred in denying defendants' motion for summary judgment on the claims asserted in subsections (c), (£1 and (h) of paragraph 6 of the amended complaint. Defendants' grounds for seeking summary judg- ment were: (1) The pleadings, answers to interrogatories and plaintiff's deposition failed to establish that the claims set forth in subsections (c), (f) and (h) were based upon any breach of an agreement or contract, but were plead in tort; (2) the alleged damages were not incurred within two years of the filing of the action; (3) the claims were barred by section 93-2607(2), R.C.M. 1947, which provides: "Two-year limitation. Within two years: "2. An action for injury to or for waste or trespass on real or personal property; provided that, when the waste, trespass or injury is committed by reason of underground work upon any mining claim or seismic exploration, location, spacing, drilling, equipping, producing, or other operation related to exploration or production of oil, gas, water, geothermal, or other minerals, the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting such waste, trespass, or injury." Defendants argue plaintiff's amended complaint, answers to defendants' interrogatories, and deposition all establish there was no genuine issue of material fact to be determined as to the claims presented in these subsections and defendants were entitled to judgment on these claims as a matter of law. Rule 56, M.R.Civ.P., provided in pertinent part: " (c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Harland v. Anderson, Mont. , 548 P.2d 613, 33 St.Rep. 363, for a discussion of summary judgment under Rule 56, M.R.Civ.P. The first amended complaint fails to specify the claims asserted in subsections (c) , (f) and (h) are based on a contract theory of recovery. The plain meaning of the language would indi- cate that recovery was sought for the tortious or negligent acts of defendants. The first specific indication plaintiff sought recovery based upon a contract theory is found in plaintiff's motion to amend the amended complaint. However, these secondary amendments cannot be considered when reviewing the merits of defendants' motion for summary judgment, since they were filed subsequent to the district court's summary ruling denying defendants' motion for summary judgment. Defendants refer to plaintiff's answers to defendants' interrogatories and the deposition of plaintiff in support of their contention the statute of limitations is a bar to the claims in subsections (c), (f) and (h) . Plaintiff stated there was no contract between plaintiff and defendants for the installation of irrigation pipeline (item (c) of paragraph 6). Plaintiff's answers to defendants' interrogatories and the deposition of plaintiff established there was no contract between plaintiff and defendants upon which plaintiff could base his claim for flood damage to hay fields and the loss of hay production (items (f) and (h) of paragraph 61, but that plaintiff was seeking recovery on the theory defendants had negligently controlled the source of irrigation waters during construction. Plaintiff's answers to defendants' interrogatories further established the damages allegedly caused by defendants occurred in May or June of 1972, more than two years prior to the filing of plaintiff's original complaint. After a careful review of the district court record, we find the pleadings, depositions, answers to interrogatories and admissions show there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law on the claims asserted in subsections (c), (£1 and (h) of paragraph 6 of the amended complaint. Accordingly, the portion of the district court judgment decreeing that plaintiff recover damages in the amounts of $1,553.65 for item (c), $1,417.00 for item ( 5 ) and $3,000.00 for item (h) is vacated and the claims dismissed. Defendants' second issue attacks the district court's granting of plaintiff's motion to amend the amended complaint on the morning of trial. Defendants contend the amendments "changed the issues to be tried from those of negligence to those of con- tract" and resulted in defendants having to prepare an entirely different defense. Rule 15, M.R.Civ.P., provides: "Rule 15. Amended and supplemental pleadings. "(a) AMENDMENTS. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, which- ever period may be the longer, unless the court otherwise orders." (Emphasis added.) Defendants cite McGuire v. Nelson, 162 Mont. 37, 42, 508 P.2d 558, for the proposition a plaintiff is denied the right to amend his complaint when the amendments materially change the theory of recovery and prejudice defendant by denying defendant sufficient time for preparation of a defense. McGuire held: "Although Rule 15 (a) M.R.Civ.P., establishes that leave to amend shall be freely granted, amendments should not be allowed where the theory presented by the amendments is totally inapplicable to the case * * *". 162 Mont. 42 In McGuire plaintiff initially sought recovery on a negli- gence theory. Shortly before trial plaintiff sought to amend his complaint seeking recovery on a breach of warranty theory. This Court reversed the district court and denied plaintiff leave to amend his complaint because of the basic inconsistency between a negligence action and a breach of warranty action and the prejudice incurred by defendant as a result of the amendments. The facts in the present action do not present a case of substantial prejudice incurred by defendants. The motion to amend the amended complaint was filed on January 19, 1976, one week prior to the date of trial, and defendants were duly notified of plaintiff's intent to amend. The effect of the amendments was to change the basis of recovery on particular claims from tort to contract. However, some of the claims had previously been plead on the theory of recovery based on contract and no additional facts or agreements between the parties were interjected by the amendments Defendants' recourse to any prejudicial effect from the late filing of the amendments was to seek a continuance for the purpose of preparing their case. The trial record fails to disclose any motion by defendants for a continuance and the element of surprise is clearly absent. See Mitchell v. Mitchell, Mont . , 545 P.2d 657, 33 St.Rep. 73. Therefore, we hold the district court's granting of plain- tiff's motion to amend the amended complaint was not an abuse of discretion. ÿ he third and fourth issues challenge the sufficiency of the pleadings and the evidence the district court relied upon in its findings of fact, conclusions of law and judgment. The function of this Court is to determine whether there is sufficient evidence to support the district court's findings and those findings will not be set aside unless there is a clear preponderance of evidence against them. Crncevich v. Georgetown Recreation Corp., 168 Mont. 113, 541 P.2d 56, 32 St.Rep. 963; Cope v. Cope, 158 Mont. 388, 493 P.2d 336. The judgment of the district court must be sustained if substantial evidence, viewed in the light of a theory found in the pleadings, supports the judgment. Hagerty v. Hall, 135 Mont. 276, 340 P.2d 147; State ex rel. Bottomly v. Johnson, 116 Mont. 483, 154 P.2d 262. Defendants contend the district court erred when it based its findings of fact, conclusions of law and judgment for the claims asserted in subsections (a), (d) , (e) and (g) on breach of implied contracts, express contracts and third-party beneficiary contracts. Defendants argue (1) the bases for recovery relied upon by the district court were not plead by plaintiff, and (2) the district court erred when it allowed plaintiff to recover on the concurrent bases of breach of implied and express contracts. We note the effect of the amendments to the amended com- plaint was to conform the basis for recovery on items (a) and (g) to that of items (d) and (e) previously plead in contract. We find no deficiency in the final amendments which would deny re- covery on the grounds of a failure to plead recovery in contract. Furthermore, there is no clear preponderance of evidence conflict- ing with the district court's findings of fact, conclusions of law and judgment on these items. Plaintiff testified as to the value of his real and personal property, before and after the alleged damages. These are facts within plaintiff's knowledge and are clearly admissible testimony. Dooling v. Bright-Holland Co., 152 Mont. 267, 448 P.2d 749. Estimates of damage repair costs, prepared by third parties, were likewise submitted to the district court in support of the award. Defendants' fifth issue challenges the district court's rulings on the admissibility of evidence. Our discussion is premised upon defendants having made timely and specific objections to each item of evidence raised on review. The first item of admitted evidence which defendants object to is the letter from plaintiff's counsel to defendants' counsel which specified the alleged damages and their respective estimated monetary worth. Defendants also object to plaintiff's testimony adopting the written estimate of damages embodied in the letter. Plaintiff's counsel offered the letter into evidence on the grounds the letter represented a list of estimated damages, prepared by plaintiff with the aid of plaintiff's son, an engineer, and sub- mitted to plaintiff's counsel who transferred the computations to the letter dated March 21, 1975 and mailed to defendants' counsel. Although defendants' counsel cross-examined plaintiff on the subject of the estimate of damages embodied in the letter, defendants failed to introduce any evidence rebutting either the authenticity or the materiality of the computations. plaintiff may testify as to the value of his real and personal property, before and after the alleged damages as these are facts within plaintiff's knowledge. We fail to find defendants were substantially prejudiced when the district court admitted the letter into evidence. The second item of evidence admitted by the district court and challenged by defendants is a copy of a written estimate for the repair and replacement of irrigation pipeline. p his estimate pertains to item (c) of the amended complaint and our holding vacating the portion of the district court judgment decreeing that plaintiff recover damages for item (c) renders any further discussion in that area moot. The third item of evidence admitted by the district court and objected to by defendants is plaintiff's testimony adopting a third party's out-of-court oral statement estimating damages as to item (dl, defendants' alleged failure to gravel plaintiff's ditch road. Plaintiff testified he based his estimate of damages upon an estimate computed by Eugene Camel, an engineer for Montana Department of Highways. Mr. Camel testified during the course of the trial, subsequent to plaintiff's testimony, and defendants were afforded sufficient opportunity to examine the witness. Defendants failed to examine Mr. Camel on this subject and failed to introduce evidence contradicting plaintiff's testimony. We find no error in the district court's ruling admitting this testimony. The last item of evidence objected to by defendants is purported parol evidence, in the form of oral statements made by third parties and admitted into evidence through plaintiff's testi- mony. Defendants contend the oral statements altered the terms of the gravel and borrow agreements and these "varied terms" were the basis for the district court allowing plaintiff to recover on items (a) and (g) of paragraph 6 of the amended complaint. Upon reviewing the transcript of the trial proceedings, in particular those sections cited in appellants' brief, we note the absence of any specific objection on the grounds the evidence introduced violates the provisions of the parol evidence rule. his Court has repeatedly held that claimed error must be raised in the dis- trict court and may not be urged for the first time on appeal. Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Bower v. Tebbs, 132 Mont. 146, 314 P.2d 731. We hold that portion of the district court judgment decreeing that plaintiff recover damages in the amounts of $1,553.65 for item (c); $1,417.00 for item (f); and $3,000.00 for item (h) is vacated and the claims dismissed. The balance of the district court judgment is affirmed. Justice F 7 e Concur: , - v h i e f Justice

July 28, 1977

006b579d-7593-4d0c-ae0a-54e681dbffa8

STATE v PREITE

N/A

13314

Montana

Montana Supreme Court

No. 13314 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 T H E STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- F R A N K PREITE, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t , Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Smith, Emmons, B a i l l i e and Walsh, Great F a l l s , Montana Robert J. Emmons argued, Great F a l l s , Montana For Respondent: Hon. Mike Greely Attorney General, appeared, Helena, Montana Robert F. Keller, Special A s s i s t a n t Attorney General, argued, Helena, Montana Submitted: February 9, 1977 Decided 1 ? 4'9-7 - -- A b ! F i l e d - 3 1 72;- Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Defendant Frank Preite was convicted of the crimes of grand larceny and grand larceny by bailee in a Workmen's Compensation prosecution in the district court of Hill County. From the judgment of conviction entered on the jury verdict, defendant appeals. The tortuous path of this prosecution is necessary to an understanding of this appeal. On July 31, 1974 defendant was originally charged in the district court of Deer Lodge County with four crimes arising out of workmen's compensation settlements handled by John L. McKeon. The information specifically charged these crimes: (1) Aiding and abetting McKeon in the crime of grand larceny involving the settlement proceeds of the Howard E . Smith claim; (2) Aiding and abetting John L. McKeon in the crime of grand larceny by bailee in connection with the settlement proceeds of the William Madden claim; (3) Aiding and abetting John L. McKeon in the crime of grand larceny by trick involving the settlement proceeds of the Harold Phelps claim and; (4) Forgery of a workmen's compensation settlement draft. On September 9, 1974 defendant filed motions to dismiss the information on the ground of insufficiency of the prosecutor's affidavit to show probable cause for filing the information. On October 4, 1974 the Deer Lodge County information was dismissed on motion by the State. On the same day a second information was filed in the district court of Hill County charg- ing defendant with 20 crimes. These crimes included the four crimes originally charged in the Deer Lodge County information. Between October 4, 1974 and February 24, 1975 defense counsel filed over 100 motions in connection with the Hill County charges hich were extensively briefed and argued by both parties. The Hill County district court granted 22 of the defendant's motions, denied 75, and 4 were withdrawn. The net result was dismissal of five counts in the Hill County information. On February 28, 1975 a third information was filed. This information charged 15 crimes. Defendant responded with a battery of 82 motions and a supporting brief. The State did not file an opposing brief, but instead filed a fourth informa- tion charging defendant with 8 crimes, including the 4 originally charged in the Deer Lodge County information with material changes in one of the charges. Defendant again filed a series of motions which included a motion for change of venue and a motion for severance of the counts charging the crimes. The district court of Hill County entered an order changing the venue of 5 of the 8 counts to other district courts outside Hill County. Eventually all 5 of the transferred counts were dismissed by the other district courts. The remaining 3 counts in the district court of Hill County charged defendant with the following crimes: (1) Aiding and abetting John L. McKeon in the crime of grand larceny involving the settlement proceeds of the Howard E. Smith claim; (2) Aiding and abetting John L . McKeon in the crime of grand larceny by bailee in connection with the settlement proceeds of the William Madden claim; and (3) Aiding and abetting John L. McKeon in the crime of grand larceny by trick involving the settlement proceeds of the Harold Phelps claim. All three crimes were originally charged in the first information filed in the district court of Deer Lodge County. Trial was held on these three charges in the district c o u r t of H i l l County commencing October 6 , 1975. The jury found defendant g u i l t y of a l l 3 charges. O n motion of defen- d a n t , t h e g u i l t y v e r d i c t on t h e charge involving t h e William Madden c l a i m was set a s i d e on t h e ground of i n s u f f i c i e n c y of evidence t o support conviction of t h a t charge. Judgment of conviction w a s entered on t h e jury v e r d i c t covering t h e remain- ing two charges, v i z (1) grand larceny involving t h e settlement proceeds of t h e Howard E. Smith claim, and (2) grand larceny by t r i c k involving t h e settlement proceeds of t h e Harold Phelps claim. Defendant appeals from t h e judgment of conviction of t h e s e two crimes. Defendant's s p e c i f i c a t i o n s of e r r o r include 9 a s s e r t i o n s of e r r o r d i r e c t e d a t h i s conviction of grand larceny involving t h e Smith claim; 15 a s s e r t e d e r r o r s d i r e c t e d a t h i s conviction of grand larceny by t r i c k involving t h e Phelps claim; and 20 a s s e r t e d e r r o r s going t o t h e c a s e as a whole. The p r i n c i p a l s p e c i f i c a t i o n s of e r r o r are d i r e c t e d a t t h e d i s t r i c t c o u r t ' s d e n i a l of a change of venue, admission i n evidence of an a l l e g e d taped "confession", d e n i a l of severance of t h e charges, d e n i a l of a speedy t r i a l , s u f f i c i e n c y of t h e evidence t o support t h e convictions, and e r r o r s i n i n s t r u c t i n g t h e jury. W e f i r s t d i r e c t our a t t e n t i o n t o t h e venue i s s u e . The a p p l i c a b l e c o n s t i t u t i o n a l provisions s t a t e : " I n a l l criminal prosecutions t h e accused s h a l l enjoy t h e r i g h t t o a speedy and public t r i a l , by an i m p a r t i a l jury of t h e s t a t e and d i s t r i c t wherein t h e crime s h a l l have been committed * * *." (Emphasis supplied.) S i x t h Amendment, United S t a t e s Constitution. " I n a l l criminal prosecutions t h e accused s h a l l have t h e r i g h t t o * * * a speedy p u b l i c t r i a l by an i m p a r t i a l jury of t h e county o r d i s t r i c t i n which t h e offense i s a l l e g e d t o have been committed * * *." (Emphasis supplied.) A r t . 11, Section 24, 1972 c o n s t i t u t i o n of- Montana. Montana s t a t u t e s implementing t h e s e c o n s t i t u t i o n a l venue requirements provide: "In all criminal prosecutions the trial shall be in the county where the offense was committed unless otherwise provided by law. * * *" Section 95-401, R.C.M. 1947. "Where two (2) or more acts are requisite to the commission of any offense, the trial may be had in any county in which any of such acts occur." Section 95-402, R.C.M. 1947. Additional implementing statutes specifically directed at the crimes here involved provide: "Where a person in one county commits, aids, abets, or procures the commission of an offense in another county the offender may be tried in either county." Section 95-404, R.C.M. 1947. "Where a person obtains property by larceny, robbery, false pretenses or embezzlement, he may be tried in any county in which he exerted control over such property." Section 95-408, R.C.M. 1947. "An * * * information against any accessory to any felony may be found in any county where the offense of such accessory may have been committed * * *." Section 94-6424, R.C.M. 1947. In this case defendant was convicted of two crimes. One crime was grand larceny in violation of section 94-2701(2), R.C.M. 1947. Essentially it charges defendant with aiding and abetting McKeon in stealing Smith's settlement warrant covering his workmen's compensation claim. The second crime was grand larceny by trick in violation of section 94-2701(1), R.C.M. 1947. Essentially it charges defendant with aiding and abetting McKeon in stealing the State's money by submitting false documents whereby a settlement of Phelps' claim was secured without his knowledge and consent. The supporting affidavit of the special prosecutor to show probable cause for the filing of the original information in the district court of Deer Lodge County flatly states that these crimes were committed in Deer Lodge County. Subsequently the State attested that it had discovered additional information authorizing the subsequent filing of the charges in Hill County, yet the State's supporting affidavit filed in Hill County discloses no such later facts. Thus the original information and original affidavit constitute clear declarations against the State's present claim that venue is properly laid in Hill County. However, the substantial error is found in the State's failure to prove venue at the trial. Venue, although not an element of the crime, is a jurisdictional fact that must be proved at the trial the same as any other material fact in a criminal prosecution. State v. Campbell, 160 Mont. 111, 500 P.2d 801; State v. Williams, 122 Mont. 279, 202 P.2d 245. In determining the place where the crime has been com- mitted within constitutional venue requirements, the rule has been stated in this language in 22 C.J.S. Criminal Law § 176, p . 434 : "The constitution contemplates actual and not constructive venue, it being essential that the crime itself, or some element thereof, shall actually have taken place in the county where venue is laid. * * *" Or stated another way, the general rule in 22 C.J.S. Criminal Law B 174, p . 431 provides: "The place where the crime is committed is determined by the acts of accused that violate the statute. * * *" The Montana Criminal Law Commission, in its comments to section 95-402, dealing with venue where the defendant is charged with aiding and abetting the commission of a criminal offense, had this to say: "This provision allows the trial to take place in the most convenient county where an element of the offense occurred. It does not matter if the final consummation of the offense occurred in another county. The only elements of the crime which are of interest are those acts constitutinq or requisite to the consummation of the offense * * *. (Emphasis supplied.) Under statutes providing that where a crime is committed partly in one county and partly in another, the accused may be tried in either, the statute requires that some acts material and essential to the crime and requisite to its consummation occur in each county before the provisions of the statute be- come applicable. State v. Smith, 57 Mont. 563, 190 P. 107. Turning to the facts of the present case, we first examine the proof involving the Smith claim. Defendant was charged with grand larceny in aiding and abetting McKeon, as bailee, in stealing Smith's settlement warrant. No essential act requisite to consumation of the crime charged occurred in Hill County. The warrant was in Anaconda where all acts as to its alleged con- version took place. Larceny by bailee, which defendant is accused of aiding and abetting, presupposes lawful possession of the warrant by McKeon. Bernhardt v. United States, 169 F.2d 983, cert. den., 335 U.S. 903, 69 S.Ct. 407, 93 L ed 437. No proof was adduced at the trial of any unlawful act or criminal intent of the defen- dant in Hill County prior to conversion of the settlement warrant in Anaconda. Acts preparatory to the commission of an offense but which are not essentials of the crime, provide no basis for 3% venue. State v. Hudson, 13 Mont. 112, 115, 23 P. 413. In Hudson we said: "Such acts as mailing the letter or buying the pistol, or a murderer traveling through Gallatin county to Silver Bow county, would be, in those particular cases, preliminary to the commission of the offense, and acts without which, in the particular case, the offense would not be committed, but they were not acts requisite to the consum- mation of the offense. If such acts were construed to be those requisite to the consummation of the offense, there are but few crimes the venue of which could not be construed to be in counties other than the actual county where the offense was committed." Here the State's own proof showed that all unlawful acts of defendant constituting elements of the crime charged occurred in Anaconda, Deer Lodge County. The proof of venue involving the ~helps'claim is equally lacking. Here defendant was charged with grand larceny by trick in aiding and abetting McKeon in stealing the State's money by submitting false documents whereby a settlement of Phelps' claim was effected without his knowledge or consent. The proof at the trial related to a 1968 injury suffered by Phelps. The State's proof indicated that Phelps knew nothing about this claim being pursued until after a radio editorial broke the story sometime after the alleged larceny had taken place. The State failed to prove that any element of the crime charged occurred in Hill County. Under the authorities heretofore noted, this is fatal to the State's case as venue in Hill County must be proved as a jurisdictional fact. As the venue issue mandates reversal of defendant's con- viction, we need not reach other substantial claims of error involving the admissibility of the alleged tape and denial of a speedy trial. The judgment of the district court is reversed and the conviction of defendant is vacated.. Justice We conc H ,/~dn: Jack Shanstrom, District ' gudge, sitting in place of Mr. J Justice John C.-Harrison.

May 11, 1977

d252f210-96d3-40a3-8138-a2b2f1035e8e

MATTER OF FISH

N/A

13775

Montana

Montana Supreme Court

No. 13775 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF DECLARING HEATHER MARIE FISH, A YOUTH IN NEED OF CARE Appeal from: District Court of the Eighth Judicial District, Honorable Truman G. Bradford, Judge presiding. Counsel of Record: For Appellant: William E . Berger argued, Lewistown, Montana Steven Bunch argued, Helena, Montana For Respondent: J. Fred Bourdeau, County Attorney, Great Falls, Montana Thomas H . Mahan argued, Helena, Montana David Paul1 argued, Great Falls, Montana Submitted: September 13, 1977 Decided SEP 2 i 1 9 t f _ 1 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the natural mother of a minor child from an order of the district court, Cascade County, awarding per- manent custody of the child to the Division of Child Welfare Services of the Department of Social and Rehabilitation Services of the State of Montana, with authority to consent to adoption. On January 9, 1975, the Department of Social and Rehabilita- tion Services (hereinafter, SRS), through their office in Great Falls, petitioned the district court of Cascade County for permanent custody of the minor child, requesting that the child be declared dependent and neglected. Hearing on the petition was held on May 1, 1975. The dis- trict court, Honorable Truman G. Bradford presiding, ordered that the child be and remain in the temporary custody of SRS for at least six months, with leave to renew the petition for permanent custody. The petition was renewed by SRS and a second hearing held on December 12, 1975. The district court ordered that temporary custody of the child continue with SRS for another six months, again with leave to renew the petition. On October 1, 1976, the natural mother of the child moved to vacate the order of December 12, 1975, and for an order granting permanent custody of the child to her. A hearing on the motion was held on November 4, 1976. At the close of the hearing, the district court orally ordered that temporary custody remain in SRS and physi- cal custody be in the mother on an experimental basis. On November 30, 1976, the district court issued a written order awarding per- manent custody of the child to SRS, with authority to consent to the adoption of the child. From this order, the natural mother appeals. Heather Marie Fish, the minor child, was born to Linda Fish on February 23, 1974. At the time of the birth, Linda Fish was unemployed, unmarried, and receiving funds from the Aid to Dependent Children program. Several weeks after the birth, Linda Fish was committed to Warm Springs State Hospital. During this time, the total responsibility for care of the child was placed in the child's maternal grandmother. Linda Fish returned to Great Falls in July, 1974, but returned voluntarily to Warm Springs in November, 1974. Soon there- after, SRS filed its initial petition for permanent custody, alleging that Linda Fish was unable to provide adequate care for the child. Temporary custody was awarded to SRS by a May 1, 1975 order of the district court. Since November 13, 1974, and pursuant to placement by SRS, the child has remained in the continuous custody of a foster family in the Great Falls area. Following her second release from Warm Springs, Linda Fish has undertaken employment from time to time in various positions, such employment being interrupted by the birth of a second child. Linda Fish has been and presently remains unmarried. Hearing on the renewed petition of SRS was held on Decem- ber 12, 1975. By an order issued that same day, the district court extended custody in SRS for an additional six months. On November 4, 1976, a hearing was held on the motion of Linda Fish to vacate the order of December 12, 1975, and to obtain an order awarding permanent custody of the child to her. At the time of the hearing, the child was approximately two years and nine months of age. Evidence at the hearing was concentrated on the fit- ness of Linda Fish as a parent. Testimony of witnesses for the natural mother, including a social worker and psychologist who main- tained close working relationships with Linda Fish, revealed improve- ment in the desire and ability of Linda Fish to perform the duties of a parent. It was shown that Linda Fish at present has the second child in her sole care, and that the child is clean and well cared for. ~ i n d a ~ i s h was shown to presently have increased financial resources for the care of the children. The remaining testimony, that which was offered by SRS, related to the relationship of the child with Linda Fish as evidenced by the child's behavior relative to visitation periods. The sole witness for SRS, a social worker who had supervised the bi-monthly visitation periods and the foster family situation, testified as to the close relationship between the child and the foster parents, and a somewhat negative reaction of the child to Linda Fish. The wit- ness testified that, in her professional opinion, the child's devel- opment would be negatively affected by a transfer in physical custody. At the close of the hearing, the district court ordered that temporary custody remain in SRS, with physical custody in the natural mother on a trial basis. However, on November 30, 1976, the district court, without having found the child to be "abused, dependent or neglected", entered an order placing permanent custody in SRS, with authority to consent to adoption. No explanation has been offered as to why the second written order is at variance with the prior oral order. In this appeal, the natural mother seeks review of the ac- tions of the district court in the context of three issues. In our view, the three issues constitute but one determinative inquiry: Did the district court abuse its discretion in awarding permanent custody to SRS while failing to find that the child was "abused, dependent or neglected" within the meaning of section 10-1301, R.C.M. 1947? We hold that it did. The natural mother argues that the evidence introduced at the hearing of November 4, 1976, clearly supports a finding that she is presently a fit and proper parent. Our attention is focused on the fact that the district court did at no time following the hearing make a finding of parental unfitness or that the child is abused, dependent or neglected. It is maintained that such findings are an indispensable prerequisite to termination of parental rights to the care, custody and control of her child by an award of per- manent custody to SRS and, ultimately, to individuals who are not the natural parents of such child. SRS, in contrast, asserts that the central inquiry in a case such as this is whether a permanent transfer of custody to the social agency is "in the best interests of the child." It is submitted that the best interests of the child should prevail over the desire of the natural mother for custody in this case, and that it would be in the best interest of Heather Marie Fish that her custody be permanently transferred to SRS such that she may be adopted by the foster family. We have consistently recognized that the primary responsi- bility for determining the proper custody of a child rests with the district court. The reasoning behind such a rule appears in the language of this Court in the case of In the Matter of the Adoption of Biery, 164 Mont. 353, 522 P.2d 1377 (1974): "What is, or what is not in the best interests of the child depends upon the facts and circumstances of each case. The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except upon a clear showing of abuse of discretion. (citing cases)." 164 Mont. at 356, 357. This alone, however, does not give a district court the power in a case arising under the Abused, Neglected and Dependent Children or Youth Act, sections 10-1300 et seq., R.C.M. 1947. Here, the court neglected to make the threshold finding that the particular child is "abused, neglected or dependent" prior to transferring permanent custody to a nonparent. Indeed, the court failed to make - any disposition to effect the perceived "best interests of the child." Section 10-1312, R.C.M. 1947, in part provides: "(1) In a hearing on a petition under section 10-1310, R.C.M. 1947, the court shall determine whether said youth is an abused, neqlected or dependent child, and ascertain as far as possible, the cause thereof." Section 10-1314, R.C.M. 1947, clearly states in part: "(1) If a youth is found to be abused, neqlected, or dependent, the court may enter its judgment mak- ing any of the following dispositions to protect the welfare of the youth: "(b) transfer legal custody to any of the following: "(1) department of social and rehabilitation services * * *." (Emphasis added.) The above statutes make plain that a finding of abuse, neglect or dependency is the jurisdicitional prerequisite to any court order- ed transfer of custody. It is then, and only then, that the "best interests of the child" standard has its application in the resolution of the question of custody. We reaffirm our posi- tion expressed in the recent Montana case involving an attempt to transfer custody from a parent to a nonparent: " * * *It is important to note that the mother was never * * * declared to be unfit to have the custody of the children. This being so, the district court had no jurisdiction to take the children away from their natural mother. "The 'best interests of the child' test is correctly used to determine custody rights between natural parents in divorce proceedings. In this situation the 'equal rights' to custody which both the father and the mother possess under section 61-105, R.C.M. 1947, are weighed in relation to each parent's ability to provide best for the child's physical, mental, and emotional needs upon the breakdown of the marital relationship. 'Fitness' of each parent is determined only in relation to the other and not to society as a whole. However, where third parties seek custody, it has long been the law in Montana that the right of the natural parent prevails until a showing of a forfeiture of this right. (Citing cases.) The Uniform Marriage and Divorce Act does not change this law. This forfeiture can result only where the parent's conduct does not meet the minimum standards of the child abuse, neglect and dependency statutes." Henderson v. Henderson, ~ o n t . - P. 2d , 34 St.Rep. 942,947 (1977). In the case before us, the district court patently failed to make the required findings. We hold that the district court was therefore without power to effect a permanent transfer of custody to SRS under section 10-1314 and abused its discretion in so doing. Two other matters have been brought to this Court's atten- tion in this case, which present serious procedural problems in cases of proposed termination of parental custody rights in favor of a nonparent or social agency. We deem these matters to merit considered discussion and resolution. The first of these considerations involved the right of a child who is the subject of a custody proceeding to independent coun- sel in the representation of his or her "best interests." In the case at bar, following the hearing of November 4, 1976, an attorney was, by stipulation, permitted to intervene ostensibly as the "court appointed attorney for the child." In reality, such attorney was retained by and represented the interests of the foster parents seeking to ultimately adopt Heather Marie Fish. As we have indicated herein, once the finding of an abused, neglected and dependent child case has been made, one of the pri- mary considerations in a custody determination of the nature involved in this case is protection and promotion of the "best interests of the child." This being the case, we refer to the holding of this Court in Guardianship of Gullette, Mont. , 566 P.2d 396, 34 'I * * * where custody is in serious dispute, the court shall appoint independent counsel for the child or make a finding stating the reasons that such appointment was unnecessary." 34 St.Rep. at 282. è he critical word appearing in the above holding, in our view, is the word "independent". Cases such as the one before us typically involve at least three central interests: those of the natural parent(s1, the nonparent(s), and finally, the child. The first two interests are, in the usual case, in direct conflict with each other. The child's interest, however, may be consistent with one or the other, or in some cases neither of such interests. Hence, in cases where the potential for inconsistency of interests exists, as here, the child must be afforded counsel which is independent from and disinterested in the parental/nonparental interests. In this manner, development of facts and production of evidence relevant to the child's best interests, in addition to the evidence offered by the parents or nonparents, is best assured. The second dilemma faced by this Court arises from the length of time the child has resided with the foster family as opposed to the natural mother. The court appointed attorney for the child argues, in effect, that the fact of a lengthy period of residence with the nonparents can itself operate to prevent custody from being revested in the natural mother in a given case. We do not adopt such a position under the facts of this case. A child cannot be adversely possessed as can a piece of real property. Further, and more importantly, to adopt such a position would be to ignore the reason for the period of nonparental custody: rehabilitation of the parent such that custody of the child may be regained on a permanent basis. Any efforts at rehabilitation would prove fruitless if a parent were to believe that the longer the period of counseling or treatment, the less would be the chance that the child would be returned to him or her on a permanent basis. We do not approve of such an argument. Nor should the district courts assist in making possible such an argument under circumstances of this case. Priority should be given by the district courts of this state to prompt resolution of custody proceedings under the Abused, Neglected or Dependent Children or Youth Act, such that the dilemma created by the delay necessarily inherent in the statutory scheme is minimized. The appellant is granted a right to file a supplemental brief. The order of the district court is vacated and the cause is remanded for rehearing in accordance with this opinion. We Concur: - 7 ,A - 7 d e z - * - / -' Chief ~hstice

September 27, 1977

ce64dd1b-704c-4eda-b549-24d3baa45a05

MATTER OF SWAN

N/A

13472

Montana

Montana Supreme Court

No. 13472 I N T H E SUPREME C O U R T O F THE STATE O F M O N T A N A I N T H E M A T T E R O F DECLARING DAWN ALISA, S A N D R A LEA and LILLIAN MARIE S W A N , Y O U T H S I N N E E D O F C A R E Appeal from: D i s t r i c t Court o f t h e Eighth J u d i c i a l District, Honorable R. J. Nelson, Judge p r e s i d i n g . Counsel of Record: For Appellant: E. F. G i a n o t t i argued, Great F a l l s , Montana For Respondent : J. Fred Bourdeau, County Attorney, Great F a l l s , Montana Randy Gray argued, Great F a l l s , Montana Thomas Mahan argued, Helena, Montana Submitted: A p r i l 27, 1977 Decided : F i l e d : 1 8 1977 Clerk M r . Justice John Conway Harrison delivered the Opinion of the Court. This i s an appeal from an order of the d i s t r i c t court, Cascade County, awarding permanent custody of appellant's three minor children t o the Montana Department of Social and Rehabili- tation Services (SRS) as youths i n need of care. Appellant, Henrietta Swan, i s the natural mother of Dawn Alisa, Sandra Lea, and Lillian Marie Swan. Henrietta Swan has a long history of inability t o care for her children, p a r t i a l l y caused by emotional problems and severe alcoholism. O n February 26, 1976, SRS f i l e d a petition for permanent custody and authority t o assent t o the adoption of the children. A hearing on t h i s petition was held on May 10. Testimony was heard from two SRS employees, Mary Morris and Mildred Lucero, who were acquainted with Henrietta Swan and her children. Much of t h i s testimony was hearsay evidence which was admitted into evidence over defense counsel's objection. Henrietta Swan was not called t o t e s t i f y a t t h i s hearing. The record iridicaes certain written reports prepared by SRS and other s t a t e agencies were considered by the court i n i t s decision. These reports concerned Henrietta Swan's a b i l i t y t o care for her children, an analysis of the children's adjustment t o t h e i r foster home, and police reports. filthough these reports were available a t the time of the hearing, they were not offered as evidence by SRS. Subsequent t o the hearing, a medical report prepared by D r . Hamilton Pierce was f i l e d with the court. It appears t h i s report was also considered by the court. The district court entered an order on June 1, awarding permanent custody of the children to SRS as .youths in need of care. The sole issue presented upon appeal is whether hearsay evidence is admissible in a custody hearing. The petition for permanent custody was brought by SRS pursuant to sections 10-1300 through 1322, R . C . M . 1947. Section 10-1310(3) states: "A petition alleging abuse, neglect or dependency, is a civil action brought in the name of the state of Montana. The Rules of Civil Procedure shall apply except as herein modified, Proceedings under a petition shall not be a bar to criminal prosecution." The instant case is a civil action and therefore all Montana Rules of Civil Procedure are applicable, including the hearsay rule. The hearsay rule appears in section 93-401-2, R . C . M . 1947, and states: "Testimony confined to personal knowledge. A witness can testify to those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible." This Court recently defined hearsay in State v. Newman, 162 Mont. 450, 457, 513 P.2d 258: "'Hearsay' is testimony or 'ievidence of someone's words or conduct outside the court, when offered in court to prove the truth of the thing being asserted, and thus resting for its value upon the credibility of the out-of-court asserter." Appellant is correct in her contention the record is replete with oral and written hearsay evidence, admitted over proper objection. Blatant examples of hearsay, such as the following exchange, are found throughout the testimony of Mary Morris and Mildred Lucero: "Q. Do you recall any time when the visitation was arranged and Mrs. Swan did not spend that visitation time with the children? A . Not by my direct observation. 1 The children would s a y , you know, we went with so and so,' but not from my direct observation. "Q. Did you talk to the children, then, following these visitations? A. Yes. "Q. And what did they tell you? "MR. GIANOTTI : Objection, hearsay. ''THE COURT: Overruled. "THE WITNESS: The children would say they were with Tiny, meaning an aunt, or : t h e y were with Ronnie, or they were with Mrs. Lahr and her children, you know, Situations vary .I1 In addition, the reports which were submitted to the court by SRS and Dr. Pierce contained written hearsay that did not fall under any of the recognized exceptions to the hearsay rule; The underlying purpose of sections 10-1300 et?seq., is to ascertain the best interests of the children subject to the proceedings and act in accordance with those findings. Bonser v . County of Cascade, 162 Mont. 1, 507 P,2d 1064; In re Bad Yellow Hair, 162 Mont. 107, 509 P.2d 9; In re Olson, 164 Mont. 431, 524 P.2d 779. In keeping with that purpose however, the Rules of Civil Procedure, including the hearsay rule, must be strictly followed. See Sanchez v . Sanchez, 55 C.2d 118, 358 P.2d 533. Any relaxing of these procedural rules could create a custody \ procedure ripe for abuse. As to written hearsay contained in the reports submitted to the court, this jurisdiction has long followed the rule that unsworn statements made out of court with no opportunity afforded to confront the writer and question him as to their veracity are Mont . hearsay. State v. Nelson, , 560 P . 2 d 897, 34 St. Rep. 80; Pessl v, Bridger Bowl, 164 Mont. 389, 524 P . 2 d 1101. S K S argues the reports in question are admissible under a statutory exception t o the hearsay rule, section 93-901-1, R.C.M. 1947. That statute provides: "written reports or-findings of fact made by officers of t h i s s t a t e , on a matter within the scope of t h e i r duty a s defined by statute, shall, i n so f a r a s relevant, be admitted as evidence of the matter stated therein." W e find no merit i n t h i s contention. The reports submitted t o the court by M r s . Morris, the SRS social worker, contain a conglomeration of material prepared by her, a food stamp e l i g i b i l i t y technician, a Great Falls police officer, and the foster mother of the Swan children. The reports are inadmissible as they contain material that i s hearsay upon hearsay. State v. Nelson, supra. Many of the reports submitted were not business records as contemplated by section 93-801-2, R.C.M. 1947. Neither were they admissible under section 93-901-1, the Uniform Official Reports as Evidence Act. Richardson v. Farmers Union O i l Co., 131 Mont. 535, 312 P.2d 134. Unsworn reports where there is no right t o cross-examine come within the hearsay rule and are inadmissible. Shillingstad v. Nelson, 141Mont. 412, 378 P.2d 393. The admis- sion of the reports over objection was error. The decision of the d i s t r i c t court is reversed. This cause i s remanded t o that court for further consideration i n conformity with t h i s opinion. We Concur: a Chief Justice 6 & -

May 18, 1977

1ff90831-fc9c-4991-9941-04556bd65869

NEVIN v COUNTY OF SILVER BOW

N/A

13164

Montana

Montana Supreme Court

N o . 13164 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A 1977 G E O R G E R. W E V I N e t a l . , P l a i n t i f f s and Respondents, -vs- T H E COUNTY O F SILVER BOW e t a l . , Defendants and Appellants. Appeal from: District Court of t h e Second J u d i c i a l D i s t r i c t , Honorable Jack D. Shanstrom, Judge p r e s i d i n g . Counsel of Record: For Appellants: Stimatz and Engel, Butte, Montana Lawrence G. Stimatz argued, B u t t e , Montana For Respondents: McCaffery and Peterson, B u t t e , Montana John L. Peterson argued, B u t t e , Montana Submitted: March 1 6 , 1977 "fiQ" 7 , - Decided : -. -.'. . ; :TT / - *itr;%" ? - [:<I/~( F i l e d : - M r . J u s t i c e Gene B. Daly delivered the Opinion of the Court. This i s an appeal by Silver Bow County from an adverse judgment i n a breach of contract case involving the lease of t h e restaurant and lounge f a c i l i t y a t the county a i r p o r t . The cause was t r i e d before Hon. Jack D. Shanstrom, s i t t i n g without a jury, i n t h e d i s t r i c t court, Silver Bow County, on January 27, 1975. Judgment was entered April 23, 1975. From t h i s judgment i n favor of p l a i n t i f f s , defendant county appeals. I n 1968, the commissioners of Silver Bow County established by resolution an a i r p o r t commission t o a c t a s an advisory commis- sion t o the Board of County Commissioners and charged it with the duty of an overall program of development and control of the a i r - port. Day t o day control f o r the a i r p o r t operation was vested i n the a i r p o r t manager and engineer. I n 1968, Wm. J. Violet leased t h e premises s e t aside f o r a lounge and restaurant consisting of approximately 4,100 square f e e t . A t t h i s time the lounge and restaurant were not completed. Later Violet abandoned the lease and the premises were i d l e f o r approximately 8 months. The county (lessor) then executed a lease agreement with p l a i n t i f f s George R. Nevin and Geraldine Nevin, (Lessees). Paragraph 2 of the lease recognized some deficiencies i n the premises and agreed t o i n s t a l l a dumb waiter, carpet on the second f l o o r , and further r a i l i n g on the balcony. Paragraph 3 of the lease breaks the r e n t a l of $300 per month i n t o $175 r e n t , and $125 a s lessees' share of water and e l e c t r i c i t y u n t i l the i m - provements were completed; then the basic rent would be $375, plus $125 f o r lessees' share of water and e l e c t r i c i t y , o r a t o t a l r e n t a l of $500 per month. The lease became e f f e c t i v e November 30, 1968 and lessees paid the f i r s t month's r e n t a l required under the lease i n December 5 1968. paragraphlo£ the lease agreement provides: "For t h e consideration aforesaid, lessor hereby gives - - and grants unto lessee, h i s successors and assigns, the r i g h t , privilege and option of renewing t h i s Lease, a t the expiration of the aforementioned term, f o r an additional term of f i v e (5) years, upon the same conditions, covenants and agreements herein s e t f o r t h and a t a r e n t a l t o be nego- t i a t e d by the p a r t i e s , by giving t o the lessor a t l e a s t ninety days' written notice p r i o r t o the expiration of such term of lessee's desire t o exercise said option and renew t h i s Lease f o r such additional term; provided, however, t h a t the r e n t a l f o r the additional term s h a l l not be increased o r decreased beyond a reasonable sum, taking i n t o consideration conditions existing a t the time of renewal and c a p i t a l improve- ments, i f any, on t h e premises during the term." (Emphasis supplied. ) On August 28, 1973, lessees mailed the required notice t o exercise t h e i r option provided i n paragraph 5 of the lease t o extend the term of . . the lease f o r an additional f i v e years. O n August 31, 1973, lessor responded t h a t the notice was not timely, based on i t s copy of the lease which indicated an e f f e c t i v e date of November 1, 1968, inked i n , rather than November 30, 1968, a s shown on lessees' copy. There was considerable argument back and f o r t h between the p a r t i e s from August 1973 u n t i l October 30, 1973, concerning t h e renewal. O n October 30, 1973, lessor proposed a - new lease f o r a term of 3 years with a r e n t a l of $1,500 per month and/or the premises vacated a s of October 31, 1973, the date the lessor alleged the old lease expired. A s a r e s u l t of t h i s communication an agreement was then made t o continue operation of the a i r p o r t f a c i l i t y on a reservation of r i g h t s f o r both p a r t i e s . O n November 15, 1973, lessor agreed the termination date of the lease was not u n t i l November 30, 1973 and notice of renewal was received on time. Lessees offered a 20% increase i n rent o r $600. November 20, 1973, lessor responded with a r e n t a l of $1,200 per month and i n addition requested c e r t a i n changes i n the provisions of the "old" lease. On November 30, the lease terminated. Lessees f i n a l l y vacated the premises, a f t e r f i l i n g an action t o determine the r i g h t s of the p a r t i e s on January 3, 1974 and amended the action on January 25, 1974 t o breach of contract. Lessor on February 24, 1974 f i l e d an answer generally denying a l l allegations, admitted the lease but denied the e f f e c t i v e date of November 30, 1968 and alleged it t o be November 1, 1968. Based on t h i s date, the lessor then by affirmative defense, plead estoppel because the lease terminated before notice was received and further alleged the lessees knew the date t o be wrong. After t r i a l , the court made findings of f a c t and conclusions of law s t a t i n g i n essence: "1. That P l a i n t i f f s entered i n t o a lease agreement with the County of S i l v e r Bow, a body p o l i t i c and p o l i t i c a l subdivision of the S t a t e of Montana, and the Airport Commis- sion of Silver Bow County, Montana, a s lessors, on October 31, 1968, f o r the lease of c e r t a i n premises i n the Silver B o w County Airport Terminal Building, beginning the 30th day of November, 1968, and ending on the same date f i v e years hence i n the year 1973. * * * That a t the time of execution of the lease agreement, the premises were not ready f o r occupancy and were not made ready f o r occupancy by lessors u n t i l November 30, 1968. That a s a p a r t of the lease arrange- ment the P l a i n t i f f s received t r a n s f e r of Retail Beer and Liquor License No. 7847 on December 5 , 1968, * * * and paid the f i r s t month rent i n advance on December 5, 1968.* * * That it was the intention of a l l of the p a r t i e s t h a t the P l a i n t i f f s were t o have a f u l l f i v e year term of a c t u a l occupancy i n the leasing of the premises. ''2. * Jc * and a s l a t e a s November 15, 1973, the Airport Board conceded the f a c t t h a t the lease would not terminate u n t i l November 30, 1973, and therefore waived any r i g h t t o contend the lease terminated November 1, 1973." Finding of f a c t No. 3, s t a t e d p l a i n t i f f s had the r i g h t t o renew under paragraph 5 of the lease f o r 5 years and on August 28, 1973 and a t l e a s t 90 days before expiration, advised defendant of t h e i r i n t e n t t o renew f o r 5 years. Finding of f a c t No. 4 , s t a t e s t h a t on August 31, 1973, defendant acknowledged p l a i n t i f f s ' l e t t e r t o renew but advised p l a i n t i f f s the notice was too l a t e and defendant, without waiving any of its rights because of failure t o notify i n time, advised that it would i n essence negotiate a "new" lease. The next contact by defendant with p l a i n t i f f s was by l e t t e r dated October 30, 1973 advising the lease expired October 31, 1973 and contem- poraneous therewith presented a new lease with other terms changed, i n addition t o the rent increase t o $1,500 per month. O n November 1, 1973 defendant requested possession by midnight November 1, 1973, a t a penalty of $50 per day for holding over, and then offered a 30-day tenancy to p l a i n t i f f s t o run t o November 30, 1973. The court further said: "* * * That the actions by the Defendants breached the terms and conditions of the lease agreement * * * by reason of i t s failure t o negotiate a reasonable increase or decrease i n rental prior t o expiration of the term of the lease on November 30, 1973. That the offer of the Defendants by l e t t e r of November 20, 1973, i n offering a rental change by increase of rent t o $1200.00 per month and provided other provisions of the lease agreement were changed * * * was an unreasonable demand for rent increase i n violation of Paragraph 5 of the lease agreement, and also violated Paragraph 5 of said lease by demanding that various other provisions of the lease agreement be changed, even though the parties had agreed i n the option t o renew that the lease would be renewed for an additional five years 'upon the same conditions, covenants and agreements s e t forth', except for rental. "5. That the offer of the Defendants on November 20, 1973, was an unreasonable reply t o Plaintiffs' offer of November 15, 1973, t o increase the rent t o %600.00 per month, * * * which the court finds was a reasonable amount for rental under the circumstances existing a t the time and i n view of the moderate amount of capital expenditure made during the term of Plaintiffs' lease." Finding of fact No. 6 , states the actions of the parties in an attempt t o negotiate a "new" lease a f t e r November 30, 1973 were efforts i n compromise of a disputed claim and not material t o complying with paragraph 5 of the lease. Even i f material, t h i s increase t o $875 i s specifically found t o be unreasonable i n view of conditions existing a t the time and capital improvements made. "7. That Paragraph 5 of the lease agreement cited above is a valid, binding and enforceable provision of the lease agreement given for the benefit of the lessees and relied upon by them as an inducement t o enter into the lease agreement i n October of 1968. That i n light of said provision, the Court finds that it could have fixed and determined a f a i r and reasonable increase i n rental i n the absence of agreement by the parties, and i n the further event the Plaintiffs sought t o elect t o enforce such remedy. That Plaintiffs, however, are entitled t o select any remedy available t o them, including t h i s action for breach of contract. That the parties themselves recognized that such clause was valid and enforceable by attempting t o negotiate a reasonable rental ." Finding of fact No. 8, stated that had defendant adequately investigated the facts it could have found i n August that the lease terminated November 30, 1973. Upon admission by November 15, 1973 of the true facts, defendant was under a firm duty t o negotiate and f i x a reasonable increase or decrease i n rent with lessees before November 30, 1973. This duty was breached. "9. That upon execution of the-lease agreement and beginning November 30, 1968, Plaintiffs went into possession of the leased premises and for a period of five years conducted a restaurant and cocktail lounge business continually during that period of time, and had as of the termination of the lease on November 30, 1973, an established business in Silver B o w County, with a good business reputation for good food and service and from which the court does conclude that such business would have enjoyed profitable success i n the next five years of operation. "10. That the business records of the Plaintiffs establish by a preponderance of the evidence that by reason of Defendants' breach of the lease agreement Plaintiffs would have earned a net profit in the business of a period of five years from November 30, 1973, the sum of Twelve Thousand Dollars ($12,000.00) each year, which is determined a f t e r deducting from the expected gross revenue a l l business expenses, including taxes, wages, depreciation and a reason- able value of Plaintiffs' services. "11. That by reason of the conduct of business over a term of five years the Plaintiffs earned a good business reputation and established good w i l l with the community, from which Plaintiffs could reasonably have enjoyed con- tinued profitable operation by reason of i t s business loca- tion, reputation for good food and service, general atmos- phere and repeated return of their customers. That by reason of the breach of the lease agreement by the Defendants, the Plaintiffs suffered damages by loss of good w i l l i n the reasonable sum of Five Thousand Dollars ($5,000.00). "12. That by reason of the breach of the lease agreement by Defendants, the P l a i n t i f f s were forced to s e l l t h e i r business, equipment and inventory i n piecemeal l o t s . That had P l a i n t i f f s been able t o s e l l such equipment a s a going concern, the reasonable value of such equipment was the approximate sum of Twenty Five Thousand Dollars ($25,000.00) That by reason of the premature and forced s a l e of such equipment, P l a i n t i f f s received .the sum of Nine Thousand Seven Hundred Eighteen and 60/100ths Dollars ($9,718.60). That by reason thereof the P l a i n t i f f s suffered damages i n the s a l e of s a i d equipment i n the sum of Fifteen Thousand Dollars ($15,000.00). "CONCLUSIONS O F LAW "I. That P l a i n t i f f s have established by a preponder- ance of t h e evidence t h a t the Defendants breached the lease agreement existing between the p a r t i e s , and p a r t i - cularly Paragraph 5 thereof. "11. That by reason of the breach of such agreement, the P l a i n t i f f s have established by a preponderance of the evidence t h a t they suffered damages a s follows: "C. Loss of value on Equipment ---------- $15,000.00 "for t o t a l damages i n the sum of Forty Five Thousand Dollars ($45,000.00) ." Defendant appeals and presents three issues f o r review: 1. The court erred i n overruling defendant's o f f e r of proof t o show the bids and the amount of rent f o r which the leased premises were l e t t o p l a i n t i f f s ' successor a s tenant a s being indicative of the reasonableness of the defendant's o f f e r of a monthly rent of $865.00 t o p l a i n t i f f s . 2. The court erred i n t h a t i t s findings and judgment of breach of lease agreement and of refusal t o negotiate a reasonable increase i n rent by defendant a r e not supported by substantial, credible evidence. 3 . The court erred i n t h a t the damages awarded p l a i n t i f f s a r e excessive, improper and contrary t o the evidence and t h e law. Lessor generallyargues the matter of the correct termination date did not a r i s e during the term of the lease and there was no I I awareness" of t h i s u n t i l August 31, 1973. That a l l matters u n t i l the defendant agreed t o a November 30, 1973 termination date as correct on November 15, 1973, should be deemed acts i n good faith. Lessor then simply says a l l negotiations a f t e r Nov- ember 15, 1973, were good f a i t h and reasonable attempts t o s e t a new rental figure and discuss "(other * * * housekeeping d e t a i l s i n removing obsolete provisions from the lease)". This logic simply ignores the facts in t h i s case. The whole tenor of t h i s situation as f a r as defendant was concerned a f t e r November 15, was merely that the notice was f i l e d on time, so l e t us go forward as is and negotiate a new contract. Examples: (1) Plaintiffs' Exhibit No. 14, a l e t t e r from defendant t o p l a i n t i f f s dated November 20, 1973, which states i n essence---we recognize your November 30 date but we want $1,200 based i n part on-offers from others and i n addition t o rent there must be other changes i n the lease. (2) Exhibit A of defendant, a l e t t e r from defendant to p l a i n t i f f s dated December 11, 1973 i n response t o a request of p l a i n t i f f s for justification of the $1,200 rent figure: "The Board and the Commission are i n agreement that no good purpose would be served by providing a detailed s e t of figures i n support of t h i s $1,200 monthly rental proposal. I f necessary the Board and Commission w i l l supply such figures and justification of the $1,2000 price i n court". (Emphasis added.) This communication was signed by the three members of the board of county commissioners. O n December 28, a f t e r numerous exchanges defendant reminded p l a i n t i f f s to be gone by the end of January, i f no settlement was reached, and so on and on. These few examples demonstrate the problem, but the review of the entire record amply supports the t r i a l court with credible and substantial evidence. - 8 - Damages have been attacked by defendant as self-imposed, beyond the contemplation of the parties when they entered into the lease i n 1968, etc. However, the only proof of damages has been produced by the plaintiffs. Plaintiffs produced evidence of loss of profit for 5 years, loss of good w i l l , and loss of market value of equipment a t forced sale. I n Laas v. Montana Highway Commission, 157 Mont. 121, 132, 483 P.2d 699, t h i s Court specifically held that under section 17-301, R.C.M. 1947, which provides that the measure of damages i n a breach of contract action i s the amount that w i l l compen- sate the party aggrieved for a l l the detriment proximately caused thereby or which i n the ordinary cause of things would be likely t o result therefrom, damages are recoverable for loss of profits : "'* * Jc the rule i s that a person may recover for loss of profits where it is shown that such loss i s the natural and direct result of the a c t of the defendant complained of and that such amount i s certain and not speculative. * * * "Profits which are a mere matter of speculation cannot be the basis of recovery i n s u i t s for breach of contract, while profits which are reason- ably certain may be ." "' 157 Mont. 132. From p l a i n t i f f s ' testimony and plaintif f s ' Exhibits 6 and 17, the court found p l a i n t i f f s ' could reasonab1.y i n the next 5 years expect a yearly profit of $12,000 per year (court's finding No. 10) yet the court awarded $5,000 per year which is well within the evidence. The same holds true for good w i l l and the equipment. The equipment Exhibit was introduced without objection and de- monstrates the t r i a l court's award. I n regard to the offer of proof as t o justification of a higher rental, the foundation was absent t o make the proposed evidence material o r relevant t o the considerations allowable under the contract which governs the method of arriving a t a new rent figure and was therefore properly denied by the t r i a l court. Finding no error and there is substantial credible evidence t o support the judgment of the t r i a l court, that judgment i s affirmed. W e Concur: ..--- . - .--,-7 Chief Justice

June 7, 1977

a8fd8b13-964f-4f86-a824-15220ab235e1

STATE v LAHMAN

N/A

13156

Montana

Montana Supreme Court

No. 13156 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, acting by and through the Department of Highways, Plaintiffs and Appellants, EDWARD C. LAHMAN and MARGARET K. LAHMAN, husband and wife, Defendants and Respondents. Appeal from: District Court of the Third Judicial District, Honorable Judge James D. Freebourn, presiding Counsel of Record: For Appellants: Frank Meglen argued, Helena, Montana For Respondents : Mulroney, Delaney and Dalby, Missoula, Montana Dexter Delaney argued, Missoula, Montana Submitted: January 20, 1977 Decided : MAY 2 4 197 Filed: At L 19-n Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff, Department of Highways, appeals from a judg- ment for the landowners in the amount of $125,660, entered after a jury trial in the district court of Powell County. Defendants Edward C. and Margaret K. Lahman own a 415.9 acre tract of land southeast of Garrison, Montana. The State condemned 77.3 acres of defendants' land for the purpose of con- structing a section of Interstate 90, and an interchange for the community of Garrison; another 1.6 acres of defendants' land were condemned for construction permits. Defendants operate a trailer park-campground on the property. Defendants valued the property at $300,000 prior to the taking. Their estimate of the fair market value of the land taken and the depreciation to the remaining land was $200,000. Enclosed in this later figure is $24,000 due to depreciation by reason of impairment of access. The State made a motion in limine asking to restrict testimony on impairment of access which the State claimed was merely a euphemism for diversion of traffic caused by the change of traffic flow and not compensable. The motion in limine was denied by the district court. Defendants then presented testimony regarding value and depreciation caused by impairment of access. Defendants' original tract is irregularly shaped. The southern boundary is a railroad right-of-way which follows the flow of the Clark Fork River in a gradual northerly curve along the more erratic path of the river. The northern boundary follows the survey line in a descending stair step pattern using the sides of a quarter section as the width and height of the steps. The descending stair step pattern and the railroad right-of-way inter- sect forming the eastern boundary of defendants' land. The north- ward sloping curve of the railroad right-of-way and the "top step" are connected by a short straight line to form the western boundary of the tract. The parcel of land condemned for the right-of-way has the shape of a "Y" lying on its side. The tail of the "Y" shaped highway right-of-way begins at the eastern boundary of defendants' land and follows the railroad right-of-way for about a third of the length of defendants1 land. At that point it de- parts sloping upward until it very nearly bisects the defendants1 land by its path. At a point about two-thirds of the way through defendants1 tract, the highway right-of-way splits and forms the arms of the "Y". The northern arm is a westbound exit into Garrison and the southern arm is an Interstate right-of-way which continues parallel to the railroad right-of-way bisecting defen- dants' land. A reproduction of the ownership sketch of the take is included here to illustrate the description of the tract. '; , . i- , ; A d -: : : 64 :.'. \ . - - I:.',:: - " 2 . 1 -- - . - I.. ~. ,--..;.';+. . 1: * --- - . L . . = . " , .. ., . *.<.:, . : . - --- - -- - - .- . . . . - -- ,- -- -- - . . . . . -.. . . . . . . . . . . . . . . . . The result of the odd shape of the State's right-of-way taking, is that defendants' remaining property is divided into three parcels. The largest is about 205 acres and is the part of the original tract north of the Interstate right-of-way and east of the northern arm of the "Y". The second parcel is the section of the original tract located south of the Interstate right-of-way and is about 100 acres. The third parcel is the part of the original tract which lies between the arms of the 11 y 'I . This parcel contains defendants' residence and business. which is a mobile home court and a recreational camping area. The State appeals from the district court's denial of its motion for a new trial and raises two issues for review: (1) The admissibility of testimony in a condemnation action for damages caused by impairment of access. (2) The admissibility of testimony on value based on comparable sales from witnesses who had made sales but had not made an appraisal nor determination of the highest and best use of the subject land. Issue 1. The first issue arises from testimony by defendant and his expert witness, Roy Rodenberger, concerning the diminution in value of defendants' land and business due to the construc- tion of the highway. Defendant and Rodenberger testified over the State's objection that defendants' property would be reduced in market value by two-thirds. These witnesses stated that their opinions were based upon the factors of: total deprivation of the recreational amenities of the Clark Fork River, partial deprivation of the recreational amenities of the Little Blackfoot River, deprivation of aesthetic features such as view and scenery by the 41 foot highway grade, increased noise, a limitation on existing area with which to expand and improve the trailer park facilities, along with an unreasonable impairment of access. The basis of the State's objection to this testimony was their theory that the only possible damage suffered by defendants was an impairment of access and such damage is noncompensable. The State is correct in its contention that damages for strict impairment of access are noncompensable. State v. Hoblett, 87 Mont. 403, 288 P. 181. In State v. Peterson, 134 Mont. 52, 68, 72, 328 P.2d 617, we stated: "'The owner of land abutting on a highway estab- lished by the public has no property or other vested right in the continuance of it as a high- way at public expense, and, at least in the absence of deprivation of ingress and egress, cannot claim damages for its mere discontinuance, although such discontinuance diverts traffic from his door and diminishes his trade and thus de- preciates the value of his land.' " * * * But the fact remains that the former high- way remains just as it was before and defendants' easement of access is not interfered with or in any way damaged. Stripped of misleading arguments and statements, defendants' claim for damage to the re- maining property is nothing more than damage by reason of diversion of traffic from their door and resulting loss to business. This is in the nature of damnum absque injuria." The damages involved in the instant case however, are not solely attributable to an impairment of access. Defendant is suffering damages caused by the severance of the portion of his property being used for a mobile home park and campground from the balance of his property. The record is perfectly clear that a great deal of the value of the mobile home park-campground area is directly attributable to the aesthetic amenities of the balance of defendants' property. This Court has discussed damages for partial taking and decrease in value to the remainder of the parcel in State v. Hoblitt, 87 Mont. 403, 408, 288 P. 181: "Ordinarily damages may be awarded only for injury done to the particular lot or tract of land from which the right of way strip is taken, and the above rule is applied in ascertaining the award to be made by a determination of the value of the acreage taken, and the depreciation in value of the remainder of the particular tract, regardless of what other lands the owner may possess (sec. 9944, Rev. Codes 1921, [now R.C.M. 1947, B 93-99121; Lewis and Clark County v. Nett, 81 Mont. 261, 263 P. 418), but, even where two tracts are separated by a highway or watercourse, or, as here, by a railway, if they are used jointly by the owner in a single enterprise and the whole plant is depreciated in value by the proposed improvement, the direct damages suffered may be compensated." (See a l s o S t a t e v. Bradshaw Land & Livestock Co., 99 Mont. 95, 43 P.2d 674; Montana R. R. Co. v. Freeser, 29 Mont. 210, 74 P. 407.) The d i s t r i c t c o u r t d i d not commit e r r o r i n admitting t h e testimony of defendant and Rodenberger concerning t h e re- duction i n value of defendants' property. The long standing r u l e i n t h i s j u r i s d i c t i o n is t h a t t h e measure of damage i n a condemnation proceeding is t h e f a i r market value of t h e land sought t o be condemned with t h e d e p r e c i a t i o n of such value of t h e land from which t h e s t r i p i s t o be taken, less allowable deductions f o r b e n e f i t s proven. Lewis and Clark County v. N e t t , 81 Mont. 261, 263 P. 418; S t a t e Highway Comm'n v. Emery, 156 Mont. 507, 481 P.2d 686. Defendants have suffered damage by t h e severance of t h e i r business property from t h e i r adjoining r e c r e a t i o n a l property and a r e e n t i t l e d t o present evidence i n order t o e s t a b l i s h such damage. This Court adheres t o t h e r u l e t h a t i n eminent domain proceedings t h e jury v e r d i c t w i l l not be d i s t u r b e d on appeal unless it is obviously o u t of proportion t o t h e i n j u r y t o t h e land taken. S t a t e Highway Comm'n v. Manry, 143 Mont. 382, 390 P.2d 97; S t a t e Highway Comm'n v. Peterson, supra and cases c i t e d t h e r e i n . W e f i n d no such g r o s s u n f a i r n e s s i n t h e j u r y ' s award and t h e r e f o r e w i l l not d i s t u r b it. I s s u e 2. The S t a t e r a i s e s a question concerning t h e testimony of two witnesses, Don Valiton and Frank Shaw. Shaw is a real e s t a t e broker i n t h e a r e a and he t e s t i f i e d g e n e r a l l y t o t h e e x i s t e n c e of a demand f o r r u r a l homesites i n t h e Garrison-Deer Lodge a r e a and t o a wide range of p r i c e s paid f o r land s i m i l a r t o t h a t owned by defendants. Valiton t e s t i f i e d t o t h e number of s a l e s , t h e p r i c e and t h e s p e c i f i c c h a r a c t e r of t h e r u r a l homesites he had sold. H e t e s t i f i e d t o t h e s i m i l a r i t i e s and d i f f e r e n c e s between this land and that of defendants. Both witnesses testified they were familiar with defendants' property. The State relies on State Highway Commission v. Green- field, 145 Mont. 164, 170, 169, 399 P.2d 989, as support for and who has not made an expert its contention that one who is not an expert/appraisal of the land in question may not testify as to the value of the land. In Greenfield there appears a thorough discussion of the ad- missibility of comparable sales prices allowed into evidence over a hearsay and best evidence objection. There the Court said : "I * * * From a practical standpoint, if each person previously involved in effecting comparable sales should have to be called to the stand to establish the detailed facts of such sales, it would lengthen litigation of this l t i n d out of all reason and would make it almost impossible for the State or defending landowners to make a proper showing as to valuation opinion within a reasonable time and at reasonable expense. * * *I" However, in considering this Court's opinion in Greenfield, the State failed to note that portion of the Court's opinion wherein we held, in allowing the testimony of a landowner, that: "In so approving this form of testimony we place a burden on the trial judge to test the expertise of the witness as to local real estate business. State Highway Comm'n v . Peterson, 134 Mont. 52, 328 P.2d 617; State Highway Comm'n v. Keneally, 142 Mont. 256, 384 P.2d 770. The party calling such expert witness must also satisfy the trial court that the sales were recent, in the vicinity, and involving land comparable to the land in issue." This is precisely what happened in the instant case. The trial court considered the credentials of witnesses Valiton and Shaw and allowed their testimony. There can be no argument that the evidence as to comparable sales is relevant. State Highway Comm'n v. Jacobs, 150 Mont. 322, 435 P.2d 274; State, Department of Highways v. Schreckendgust, Mont . , 551 P.2d 1019; 33 St.Rep. 568; Montana Power Company v. Wolfe, Mont . , 545 P.2d 674, 33 St.Rep. 172; Montana R'y Co. v. Warren, 6 Mont. 275, It is clear the determination of the competency of witnesses to testify in a condemnation case as to property valuation is within the discretion of the court. In 2 Lewis, 3rd ed, Eminent Domain, 5656, p . 1127, it is said that all that is required is: " * * * It must appear that he [the witness] has some peculiar means of forming an intelligent and correct judgment as to the value of the property in question beyond what is presumed to be possessed by men generally." See: State Highway Comm'n v. Keneally, 142 Mont. 256, 384 P.2d 770. Here, both witnesses were familiar with rural homesite land sales and defendants' land. The district court found them competent to testify and their testimony was relevant. While the court could have refused to allow this testimony based on consider- ations of judicial economy to prevent cumulative testimony, sec- tion 93-1901-3, R.C.M. 1947, here it is not error to refuse to exclude such relevant evidence. State Highway Comm'n v. Greenfield, supra. For the foregoing reasons the judgment of the district court is affirmed. Justice Justices 6 ' Mr. Justice John Conway Harrison dissenting: I dissent. For the past 19 years State v. Peterson, 134 Mont 52, 68, 72, 328 P.2d 617, has been the ruling case law of this state on the issue of abutting property owner's rights. Until today, Peterson has been one of the most cited and relied upon decisions of this jurisdiction in the field of eminent domain litigation. Our departure from that holding will in my opinion seriously affect litigation in future eminent domain cases. I would reverse the trial court on the first issue, relying on Peterson and a host of cases since that holding. In Peterson this Court held: "'The owner of land abutting on a highway established by the public has no property or other vested right in the continuance of it as a highway at public expense, and at least in the absence of deprivation of ingress and egress, cannot claim damages for its mere discontinuance, although such discontinuance diverts traffic from his door and dimin- ishes his trade and thus depreciates the value of his land. t " ~ u t the fact remains that the former highway remains just as it was before and defendants' easement of access is not interfered with or in any way damaged. Stripped of misleading arguments and statements, defendants' claim for damage to the remaining property is nothing more than damage by reason of diversion of traffic from their door and re- sulting loss to business. This is in the nature of damnum absque injuria." 134 Mont. 68,72. The testimony of the expert appraiser as to the loss of value to the residential and commercial parcel because of loss of convenient access to that parcel is in effect testimony about the loss of business due to the rerouting of the highway and that loss is not compensable. It was error to admit that testimony. State v. Hoblitt, 87 Mont.403, 411, 288 P. 181; State v. Thelberg, 87 Ariz. 318, 350 P.2d 988; Troiano v. Colorado Dept. of Highways, 170 Colo. 484, 463 P.2d 4 4 8 . Mabe v. State, 83 Idaho 222, 360 P.2d 799,

May 24, 1977

eea62e5e-5a14-44aa-b83a-f3ef04717ce9

KELLY v LOVEJOY

N/A

13580

Montana

Montana Supreme Court

No. 13580 IN THE SUPREME COURT OF THE STATE OF MONTANA JOHN T. KELLY and NICK1 D. KELLY, husband and wife, Plaintiffs and Respondents, FLOYD M. LOVEJOY and BEVERLY LOVEJOY, husband and wife, Defendants and Appellants. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: Pedersen, Herndon & Harper, Billings, Montana Gregory S. Munroe argued, Billings, Montana For Respondents: Peterson and Hunt, Billings, Montana Kenneth D. Peterson argued, Billings, Montana Submitted: May 6, 1977 Decided: Jt9[\8 1.0 Filed: SOH L ii 1 9 s Mr.Justice Frank I. Haswell delivered t h e Opinion of t h e Court. P l a i n t i f f s Kelly brought t h i s a c t i o n i n t h e d i s t r i c t court, Yellowstone County, seeking enforcement of a r e s t r i c t i v e covenant by enjoining defendants Lovejoy from maintaining two horses on t h e i r property. The court enjoined t h e Lovejoys who now appeal t h a t order. W e reverse. A t t h e t i m e t h i s a c t i o n was commenced both p l a i n t i f f s and defendants resided i n a subdivision located a s h o r t d i s t a n c e outside t h e western c i t y l i m i t s of B i l l i n g s , Montana. The sub- d i v i s i o n i s located i n an area t h a t i s primarily r e s i d e n t i a l on t h e e a s t e r n portion located nearest t o t h e c i t y of B i l l i n g s , b u t development becomes less dense a s one nears t h e western boundary. This subdivision, known as t h e Yerger subdivision, w a s p l a t t e d i n 1956 by Henry Yerger. Subsequently i n 1961 r e s t r i c t i v e cove- nants w e r e imposed upon t h e land i n question by Yerger. The p a r t i c u l a r covenant a t i s s u e i n t h i s appeal s t a t e s : "That no swine, poultry, goats, o r livestock s h a l l be permitted on t h e premises." This case involves a dispute between two neighbors con- cerning defendants' maintenance of horses on t h e i r property i n v i o l a t i o n of t h e above covenant. The subdivision has a h i s t o r y of its r e s i d e n t s maintaining horses upon t h e i r property. The f i r s t extensive development i n t h e subdivision occurred i n 1966 and horses have been present i n t h e subdivision continuously t h e r e a f t e r . One John M i l l e r , who was t h e second person t o move i n t o t h e subdivision, purchased f i v e l o t s from Yerger. Subse- quently i n 1968 M i l l e r purchased a horse which he maintained on h i s property f o r t h r e e t o four years. M i l l e r constructed a barn and fences on h i s property which remained a t t h e d a t e t h i s a c t i o n w a s commenced. Miller t e s t i f i e d t h a t n e i t h e r Yerger nor any o t h e r r e s i d e n t ever objected t o h i s horse. Marvin Crick moved i n t o t h e subdivision i n 1973. H i s predecessor had maintained a horse on t h e property and a small barn was constructed thereon. Crick has kept a t l e a s t one horse on h i s property from 1973 t o t h e present. Lovejoys moved i n t o t h e Yerger subdivision i n August, 1966. I n i t i a l l y t h e Lovejoys purchased f o u r adjoining l o t s from Yerger. Subsequently, but p r i o r t o t h e commencement of t h i s a c t i o n , Lovejoys purchased two a d d i t i o n a l l o t s which a d j o i n t h e i r o t h e r property. The purpose of both land purchases was t o pro- v i d e an a r e a i n which t o maintain horses near t h e i r home. A barn, haystack and o t h e r improvements i n c i d e n t t o t h e maintenance of horses have been constructed on t h i s property. I n i t i a l l y Lovejoys had one horse on t h e i r property; however i n r e c e n t years two horses have been maintained. Kellys moved i n t o t h e subdivision i n August, 1975, nine years a f t e r t h e Lovejoys. Kelly, a r e a l estate broker, purchased a home located a s h o r t d i s t a n c e west of t h e a r e a i n which Lovejoys keep t h e i r horses. A grassy f i e l d which i s a p l a t t e d , but un- constructed street, s e p a r a t e s t h e p a r t i e s ' property. Kelly t e s t i f i e d t h a t from h i s f i r s t v i s i t t o t h e subdivision he had noticed horses and improvements i n c i d e n t t o t h e i r maintenance such as barns and haystacks. H e f u r t h e r t e s t i f i e d t h a t he w a s f u l l y aware t h a t Lovejoys had a t l e a s t one horse p r i o r t o t h e time he purchased h i s home. I n regard t o t h e covenant i n ques- t i o n and h i s f e e l i n g s about its obvious v i o l a t i o n , Kelly t e s t i f i e d : "Q. When you moved i n , i s it c o r r e c t t h a t you were n o t of t h e opinion t h a t horses w e r e r e s t r i c t e d from t h e subdivision? A. I had believed through t h e r e s t r i c t i o n s and had seen t h e t i t l e r e p o r t t h a t l i v e s t o c k was not allowed i n t h e subdivision. "Q. Didn't it cause you any concern t h a t t h e r e w e r e horses obvious i n evidence i n t h e subdivision? A. A t t h a t time I d i d n ' t t h i n k it w a s a problem. "Q. Is it t r u e , then, t h a t a t t h a t p o i n t i n t i m e you acquiesced in the presence of those horses; you didn't care? A. Obviously." A dispute arose between the parties soon after the Kellys' arrival in the subdivision. Apparently the dispute centered around Kellys' dog barking at and harassing Lovejoys' horses. Thereafter Kellys commenced this suit against Lovejoys and requested the court to enjoin Lovejoys from maintaining horses upon their property in violation of the restrictive covenant. The record reveals that Kellys did not make any attempt to resolve the problem by negotiation prior to the commencement of this action. Furthermore Kellys have not sought injunctive relief against Mr. Crick who also maintains a horse on his property in the Yerger subdivision. Lovejoys raise three issues upon appeal: 1. Whether the covenant restricting livestock from the Yerger subdivision applies to horses. 2. Whether the covenant restricting horses from the Yerger subdivision is enforceable against the Lovejoys. 3. Whether the district court abused its discretion in granting an injunction on the facts of the instant case. As to the first issue, we find absolutely no merit in Lovejoys' contention that horses are not included within the general term of livestock and therefore are not barred from the subdivision. True, the covenant does not specifically state that horses are not permitted in the subdivision. However live- stock is specifically prohibited and any contention that horses are not livestock is absurd. The Montana statutes are filled with definitions of the term livestock which specifically state that horses are contained within this general category. Sections 84-406(3) ; 46-801.1; 46-2901(2), R.C.M. 1947. In view of the clear language of the covenant there is nothing for this Court t o construe. W e have s t a t e d before t h a t where t h e language of a restrictive covenant is p l a i n , unambiguous, d i r e c t and c e r t a i n and admits of but one meaning, it i s t h e duty of t h i s Court t o d e c l a r e what t h e t e r m s of t h e covenants contain and n o t t o i n s e r t a l i m i t a t i o n not contained t h e r e i n . Higdem v. Whitham, 167 Mont. 201, 536 P.2d 1185. A s t o t h e second i s s u e , t h e Kellys' admitted acquiescence t o t h e presence of Lovejoys' horses c o n s t i t u t e d a waiver and Kellys a r e t h e r e f o r e estopped from a s s e r t i n g t h e r e s t r i c t i v e cove- nant a g a i n s t Lovejoys. Waiver is g e n e r a l l y defined as a voluntary and i n t e n t i o n a l relinquishment of a known r i g h t , claim o r p r i v i l e g e . Mundt v. Mallon, 106 Mont. 242, 76 P.2d 326; Farmers Elevator Company of Reserve v. Anderson, Mont . , 552 P.2d 63, 33 St.Rep. 614. Waiver may be proved by express d e c l a r a t i o n s o r by a course of acts and conduct s o as t o induce t h e b e l i e f t h a t t h e i n t e n t i o n and purpose was t o waive. Northwestern F i r e and Marine Insurance Co. v. P o l l a r d , 74 Mont. 142, 238 P. 594. I n t h e i n s t a n t c a s e Kellys were aware of t h e covenant i n question p r i o r t o t h e purchase of t h e i r home. Kellys v o l u n t a r i l y and i n t e n t i o n a l l y waived t h e i r r i g h t t o enforce t h e covenant a g a i n s t Lovejoys by t h e i r acquiescence i n t h e presence of t h e horses. I n view of such waiver Kellys are now estopped t o a s s e r t t h e covenant a g a i n s t Lovejoys. Whether t h e r e has been such acquiescence a s t o d e f e a t t h e enforcement of a v a l i d r e s t r i c t i o n depends upon t h e circum- stances of each c a s e and t h e c h a r a c t e r and m a t e r i a l i t y of t h e permitted breach. Kosel v. Stone, 146 Mont. 218, 404 P.2d 894. I n view of t h e above finding it is unnecessary f o r us t o r u l e upon t h e t h i r d i s s u e . The judgment of t h e d i s t r i c t c o u r t is reversed and t h e i n j u n c t i o n vacated. The cause is remanded t o t h e d i s t r i c t c o u r t f o r e n t r y of judgment i n favor of defendants Love j oy . - 5 - Justice

June 10, 1977

8727c795-8277-4e4e-b16f-6a4e17e877bc

STATE v MICHELSON

N/A

13309

Montana

Montana Supreme Court

No. 13309 I N THE SUPREME C O U R T OF THE STATE O F M O N T A N A 1977 STATE O F M O N T A N A , P l a i n t i f f and Respondent, LELAND (TOBY) PIICKELSON, Defendant and Appellant. Appeal from: D i s t r i c t Court o f t h e Third J u d i c i a l D i s t r i c t , Honorable Robert J. Boyd, Judge p r e s i d i n g . Counsel o f Record: For Appellant: William A. Brolin argued, Anaconda, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mayo Ashley argued, A s s i s t a n t Attorney General, Helena, Montana Joseph Connors, County Attorney, Anaconda, Montana Submitted: March 2 2 , 1977 Decided: JUN - (3 197-f F i l e d : d J N - 3 1 $ & a M r . Justice Gene B , Daly delivered the Opinion of the Court. This i s an appeal from a judgment of guilty of felony theft i n violation of section 94-6-302(1), R.C.M. 1947, by the d i s t r i c t court, Deer Lodge County, s i t t i n g without a jury. The s t a t e agrees with the facts presented by defendant i n h i s brief on appeal which include: "The Information alleged that: 'I40n o r about October 6, 1974, i n Deer Lodge County, Montana, the defendant, Toby Mickelson, purposely or knowingly obtained or exerted unauthorized control over property, a 1972 Chevrolet pickup, gold with white t r i m , V I N Number CCE142Z135099, of a value of more than $150.00, owned by Thompson's Motor Company, and purposely or knowingly used, concealed or abandoned the property i n such manner a s t o deprive the owner of the property which was i n viola- tion of the above statute and against the peace and dignity of the State of Montana."' Section 94-6-302(1), R.C.M. 1947, states: "(1) A person commits the offense of t h e f t when he purposely or knowingly obtains or exerts unauthor- ized control over property of the owner, and: "(a) has the purpose of depriving the owner of the property; or "(b) purposely or knowingly uses, conceals, or abandons the property i n such manner as t o deprive the owner of the property; o r "(c) uses, conceals, or abandons the property knowing such use, concealment or abandonment probably w i l l deprive the owner of the property," O n June 15, 1975, nine months a f t e r the alleged theft, Toby Michelson, the defendant, was arrested. O n June 25, 1975, an Information was f i l e d i n the d i s t r i c t court charging defendant with theft. The public defender of Deer Lodge County was appointed as counsel for defendant. The Information l i s t e d the names of witnesses, five i n number: B i l l Rhoades, Joe Thompson, Eugene Thompson, Gary Jacobs, and Anthony Bamonte. O n September 8, 1975 defendant f i l e d h i s notice of intent t o rely on the defense of a l i b i , which notice contained the names of various witnesses upon whom defendant intended t o rely t o establish h i s defense. Included i n that l i s t was one Forest Walter of Polson, Montana. The county attorney thereupon f i l e d an a l t e r - native motion to s t r i k e the defense of a l i b i a s being untimely, or t o continue the t r i a l date of September 15, 19 The court allowed the defense and continued the t r i a l date u n t i l January 5, 1976. O n December 31, 1975, the s t a t e requested another continuance based on the unavailability of witness William Rhoades, because of health. Rhoades was the witness the s t a t e alleged purchased the stolen pickup from defendant. ~hoades"testimony was continued, however the t r i a l commenced as scheduled. The matter was submitted to the court on January 19, 1976. O n January 23, 1976, the court entered judgment finding defendant guilty; motion for a new t r i a l was denied and defendant thereafter f i l e d t h i s appeal. Owner Thompson t e s t i f i e d h i s truck was missing from h i s l o t October 7, 1974, and l a t e r was located i n the s t a t e of Washington i n the possession of B i l l Rhoades i n November. Dan Gochanour t e s t i f i e d he met defendant i n Polson, Montana around the f i r s t of October on a weekend or a Monday. Defendant was driving a 1972 Chevrolet truck, the same as the one i n question here. H e and defendant went t o defendant's s i s t e r ' s home i n Wallace, Idaho, where defendant told him how he stole the truck from Thompson Motors. Then he and defendant went t o Winthrop, Washington and picked apples for one "Ed Bryan". Three or four weeks l a t e r they went t o the home of M r . & Mrs. B i l l Rhoades a t Metaline Falls, Washington. There defendant purchased mirrors for the truck and traded it t o B i l l Rhoades for a Dodge. Marlin Gochanour t e s t i f i e d he knew defendant who stayed over- night a t ''about the time of the pickup." Defendant drove a gold and white 1972 Chevrolet pickup i n t o the witness' yard. Defendant had another pickup i n the yard but Marlin could not affirm the p l a t e s were switched. He could not f i x a date even a s t o t h e month when he saw defendant, except it was a weekend. The s t a t e received a week's continuance f o r witness Rhoades' testimony but rested the following week a s witness Rhoades passed away. Defendant t e s t i f i e d : 1. That a t no time did he ever have i n h i s possession a gold and white 1972 Chevrolet pickup. 2. That he had owned a 1971 Chevrolet pickup blue and white i n color, which was sold t o c r a f t ' s Conoco i n Missoula. 3 . That when t h e blue and white pickup was sold t o c r a f t ' s Conoco the license p l a t e s were l e f t on the truck, along with the registration. 4. That he purchased from Craft a t the same time he sold h i s pickup, a 1968 Chevrolet convertible which he kept about two weeks and then traded Craft again, t h i s time f o r a white '67 Plymouth automobile. These transactions occurred approximately i n June 1974. 5. That on October 6 , 1974 he was i n Polson, Montana with Forest Walter. 6. That witness Daniel Gochanour was not a t Forest Walter's residence i n Polson on October 6, 1974. 7. That witness Daniel Gochanour did not accompany him (de- fendant) t o the s t a t e of Washington, stopping a t h i s s i s t e r ' s home i n Wallace, Idaho. 8. That he l e f t Polson a week and a half a f t e r October 6 , 1974 f o r the s t a t e of Washington i n a white '67 Plymouth automobile i n the company of one Howard White. 9. That he returned t o Montana from Washington the following spring (1975) with a white '67 Plymouth and sold the car t o Dale Combs. 10. That he saw a pickup, otherwise unidentified, i n the garage owned by B i l l Rhoades early i n November 1974 but he did not s e l l a car nor pickup t o B i l l Rhoades, nor did he get one from him, 11. That B i l l Rhoades' wife i s the mother of Daniel Gochanour and formerly was married t o Merlin Gochanour. Mrs. Rhoades i s a s i s t e r t o h i s former wife (defendant's) and that bad feelings exist between defendant and the Gochanours. A t t h i s point of the t r i a l defendant endeavored t o introduce an affidavit from Forest Walter into evidence, and upon objection of the s t a t e being sustained, defendant moved for a continuance t o allow a subpoena t o issue and be served requiring the attendance of t h i s witness. The motion was granted and the t r i a l was again recessed u n t i l January 19, 1976. O n January 14, 1976, the s t a t e f i l e d a document entitled '!Notice of Additional Witnesses" i n which defendant was apprised of the s t a t e ' s intent t o c a l l Mrs, William Rhoades of Hot Springs, Montana, a s an additional witness for the prosecution. Upon t r i a l reconvening on January 19, the court directed the county attorney t o secure a bench warrant for the a r r e s t of Forest Walter for contempt of court, a s being unavailable t o the defendant a s directed by the subpoena issued and served. A t the request of the defense attorney the court allowed the defendant t o personally address the court. Defendant f i r s t raised the question of lack of speedy t r i a l and then requested the court to appoint a new lawyer. The court denied both requests. The de- fendant then, through h i s attorney, moved for dismissal for failure t o establish a prima facie case. The motion was denied. Thereafter defendant testified: 12. That he was not a t the home of Nerlin Gochanour or i n Anaconda a t any time on October 5, 6, o r 7, 1974. 13. He denied telling Daniel Gochanour that he, the defendant, broke a window from the pickup, crossed the wires and stole the truck. H e denied buying any mirrors, denied staying a t the ~hoades' residence except for a half hour, denied going t o a bar with B i l l Rhoades f o r a drink, and denied ever having seen the stolen pickup. Without being able t o introduce any further testimony because of the failure of witness Forest Walter t o appear, the defense rested. The s t a t e recalled Daniel Gochanour a s a rebuttal witness, he testified: 1. That he was i n Polson on October 6, 1974, residing with Forest Walter, h i s wife and family. 2. That he was involved with auto repair work for Forest Walter;, 3. That defendant Michelson did not work for Forest Walter on the days of October 4, 5, 6, and 7, 1974. That defendant arrived i n Polson on October 7, 1974. The witness Daniel Gochanour then generally gave the same testimony on going t o Washington, that he previously gave. F i r s t , we s t a r t t h i s discussion with the affidavit of Forest Walter, defendant's proposed Exhibit B , dated August 11, 1975, a t Polson, Montana. Although not admitted, it s e t s forth that de- fendant and Howard White spent October 3,4,5,6, and 7, 1974, with Forest Walter fixing a 1940 Chevrolet pickup truck and defendant was driving a 1967 white Plymouth car. Second, w e have i n the record for the s t a t e the two Gochanours' testimony, which i s f a r from unbiased, considering the relationship, t o testified/by the defendant and unrebutteii by the;-state. Thompson was just a corpus delecti witness and thus t h i s proved only the vehicle was stolen. Third, we have the two witnesses, William Rhoades and Forest Walter, who could have cleared up the matter, but the power of the s t a t e could not get them t o court. Defendant denied each and every fact i n the record against him and gave the names of raft'^ Conoco, Missoula; B i l l Combs, Polson; Howard White; and of course Mrs. Rhoades and Mrs. Forest Walter, a l l of whom could have been called t o determine the truth. This was never done. The search for truth was less than vigorous by counsel i n t h i s matter and t h i s writer feels that, particularly on a bench t r i a l , the judge has the inherent power, right and yes, duty, t o sua sponte demand'that a search for the t r u t h be exhausted before the matter be accepted for decision. Otherwise, the defendant, as here, has been denied a f a i r t r i a l and due process under A r t . 11, Section 24, 1972 Montana Constitution. The judgment of the t r i a l court is reversed and the cause Chief Justice

June 3, 1977

270d199d-fd3d-4eb5-9380-44e0195b2a55

MARRIAGE OF TWEETEN

N/A

13670

Montana

Montana Supreme Court

No. 13670 I N T H E SUPREME COURT O F THE STATE O F MONTANA 1977 Re INITHE MARRIAGE OF KANDIS TWEETEN, P e t i t i o n e r and Appellant, H E N R Y TWEETEN, Respondent and Respondent. Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t , Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Smith, Emmons, B a i l l i e and Walsh, Great F a l l s , Montana Robert J. Emrnons argued, Great F a l l s , Montana For Respondent : Hauge, Ober, Spangelo and Thompson, Havre, Montana Morton B. Goldstein argued, Havre, Montana Submitted: M$&k 2 , 1977 Mr. Justice John Conway Harrison delivered the Opinion of the Court. Petitioner Kandis Tweeten brought an action in the district court, Hill County, seeking ( 1 ) the dissolution of her marriage to Henry Tweeten, ( 2 ) a property settlement, and ( 3 ) custody of the parties' 3 year old child, Kevin. In its order of December 7, 1976, the district court dissolved the marriage, ordered a property settlement and found that both parties were fit and proper persons to have custody of Kevin. The court awarded custody of the child to Henry: "Because of the close and warm relationship of Kevin with his father and the greater maturity and stability which the father possesses and can offer as a parent, the Court finds that it is in the best interest of Kevin that he be placed in the general care, custody and control of his father * * *.I1 Kandis appeals from the decree only insofar as it awards custody of Kevin to Henry. Kandis and Henry Tweeten were married in Havre, Montana, August 19, 1972. Kevin was born October 25, 1973 and is the sole issue of the marriage. Kandis and Henry separated the first week of June 1976, and from that date until trial on November 18, Kevin resided with his mother. During this period however, Kevin spent at least two days per week in the company of his father. Eighteen witnesses were called at the two day nonjury trial. Testimony was heard from a welfare worker employed by the Hill County Welfare Department who conducted a child custody investi- gation. The result of this investigation was a recommendation that the father be awarded custody of Kevin. Testimony was also heard from Dr. Betsy Rushworth,a clinical phychologist. Dr. Rushworth conducted a mental health evaluation of Kevin and his parents. The result of this evaluation was inconclusive indicating that Henry and Kevin had a warm and loving relation- ship, but Henry tended to be overpermissive with Kevin. On the other hand, the evaluation indicated that Kandis exhibited some deficiencies in her dealings with Kevin, but was making a concerted effort to improve. The testimony of Kandis and Henry along with members of their immediate families and close friends was considered by the district court in its decision. On December 8, the district court granted a stay of execu- tion as to custody extending the temporary custody of Kevin in his mother, with visitation rights to Henry pending this appeal. The sole issue upon appeal is whether the district court erred in awarding the custody of Kevin to Henry rather than his mother, Kandis. This Court has long followed the rule that unless there is a clear abuse of discretion by the trial court, a decision on custody will not be overruled on appeal. Love v. Love, 166 Mont. 303, 533 P.2d 280; Gilmore v . Gilmore, 166 Mont. 47, 530 P.2d 480; Ander- son v . Anderson, 145 Mont. 244, 4 0 0 P.2d 632. This Court is committed to the view that the welfare of the child is the para- mount consideration in awarding custody and that it must of necessity be left largely to the discretion of the trial judge. He hears the testimony, sees the witnesses demeanor, and thus has a superior advantage in determining the difficult problems. Brooks v . Brooks, Mont . , 556 P.2d 901, 33 St.Rep. 1114. Unless there is a clear preponderance of the evidence against the trial court's decision it will not be disturbed. Gilmore v . Gilmore, supra. The relevant statutory guidelines dealing with child custody matters appear in section 48-332, R . C . M . 1947, of the recently adopted Uniform Marriage and Divorce Act. This section states: "Best interest of child. The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including: " ( 1 ) the wishes of the child's parent or parents as to his custody; " ( 2 ) the wishes of the child as to his custodian; " ( 3 ) the interaction and interrelationship of the child with his parent or parents, his siblings,and any other person who may significantly affect the child's best interest; " ( 4 ) the child's adjustment to his home, school, and community; and " ( 5 ) the mental and physical health of all indivi- duals involved . I 1 Kandis asserts the district court erred in awarding the custody of Kevin to Henry. After careful consideration of the factors listed in section 48-332, the district court found and we agree, that the evidence indicated the awarding of Kevin's custody to his father was in the child's best interest. This Court feels the first two of the stated factors are not of controlling importance in this custody decision. Both parents testified as to their desire to have custody of Kevin. It is obvious where both parents desire custody of the child this factor loses its relevance as the desires of the parents are balanced against each other, In this regard it is important to remember the best interest of the parent, or detriment to the parent, is not the test. Veazey v . Veazey, Alaska 1977, 560 P . 2d 382. Too, Kevin was approximately 3 years, 1 month old at the time of the trial. See: Hild v. Hild, 221Md. 349, 157 A . 2 d 442. We find no error in the district court's failure.to inter- view Kevin as to his preference. - 4 - A s t o the third factor, interaction of the child t o his parents, the evidence is clear Kevin has a far better relation- ship with his father than his mother. Henry and Kevin have an excellent relationship as testified t o by the welfare worker who recommended that custody be awarded t o Henry, and D r . Rushworth, the examining clinical psychologist. This Court and other courts have previously held that independent evaluations by social or welfare departments are important factors to be con- sidered i n child custody decisions. Simon v. Simon, 154 Mont. 193, 461 P.2d 851. Furthermore, there was considerable testimony from the parties' families and friends a s t o Henry's love and affection, and concern for his son Kevin. A n analysis of the fourth factor, adjustment t o home, school, and community, again reinforces the d i s t r i c t court's decision. The record is clear that Henry has been the dominant force i n providing for the education and religious training of Kevin. Henry spends a great deal of time out in the community with Kevin and the record reflects that these efforts have resulted i n Kevin making a good adjustment t o his community and environment i n spite of the unsettled s t a t e of his short l i f e . W e take t h i s opportunity to clarify one point i n t h i s Court's recent decision i n Gilbert v. Gilbert, 166 Mont. 312, 316, 533 P.2d 1079. In Gilbert, the father petitoned the dis- t r i c t court for a change of custody from the mother. The t r i a l caurt denied the father's petition because he found no material change of circumstances warranting a modification of the decree. The record before t h i s Court showed that a f t e r one year under the original custody agreement the child became emotionally ill. Both parties recognized that fact and because the father lived in a university town where consultation with professional help was available and where the child could attend a child develop- ment center, he took custody of the child. Some months later the mother tried to get her child back and the father refused. In view of the facts, this Court found that there had been a change of circumstances and it was in the child's best interest to remain with the father, the Court noted: "Physical custody of this child in its present environment is a fact and has been for a long period of time, when viewed in the light of the formative years of a four year old child at the time she came into the present environment after an unsuccessful one year from age three to four years in the first agreed custody arrangement. I I While the time period a child spends with a parent pending an appeal of a custody case is a factor to be considered by a trial court, it should not be so controlling as to negate a parent's right of appeal. Here, the record reveals Kevin becomes withdrawn when in the company of his mother, but on the other hand is happy and outgoing with his father. While there is no indication of mental or physical illness on Kevin's part, the court found the best interests of Kevin dictate that Henry be awarded custody. Kandis argues that, even though section 91-4515, R . C . M . 1947, was superseded by the Uniform Marriage and Divorce Act and the statutory "tender yearst1 presumption found therein no longer exists, the universal rule is that this presumption is still conclusive in custody matters. Kandis would have us believe the district court erred in not indulging the presumption that a mother is better fit to have custody of a child of tender years. We agree such a presumption exists, but do not find it to be conclusive. In this jurisdiction each child custody case will be decided on its own facts rather than by the use of "controlling or conclusive" presumption. This rule is well established in other jurisdictions which have adopted the Uniform Marriage and Divorce Act. See: Johnson v . Johnson, Mo.App. 1975, 526 S . W . 2 d 33; Re-G.-T. v . Y.-G.-T., Mo.App.1976, 543 S . W . 2 d 330; Eviston v . Eviston, Ky.App. 1974, 507 S . W . 2 d 153. We affirm the district court decree in its entirety. We Concur: Chief Justice

May 4, 1977

739c3793-72c3-4e98-ac04-5dea316c0f0f

RYAN v CRIST

N/A

13480

Montana

Montana Supreme Court

No. 13480 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 DONALD E . RYAN, Petitioner and Appellant, VS. ROGER CRIST, WARDEN, Respondent and Appellee. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Donald E. Ryan, Pro Se, Deer Lodge, Montana For Respondent: Michael Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Argument waived and submitted on briefs. Submitted: January 14, 1977 Decided : ~ p y - 9 1 9 7 7 c- Filed: M Y - 9 1977 , - 9 Clerk tv~r. ' t s c i c d 3 d ~ l i e l 2 . sned 3eLiveied :he dpiliio~l > f irhe Court. 3eielldant appeals from an order of the d i s t r i c t court, Yelluwscone County, refusing t o vacate a 10 year sentence imposed ror three counts of grand larceny. He contends t h a t i n imposing t h i s sentence the d i s t r i c t court improperly considered h i s p r i o r Celony record because defendant did not have counsel when the obtained the convictions. The s t a t e does not dispute t h a t he did not have counsel a t the time. The f a c t s leading t o defendant's claim are: O n July 27, L9/3, Jefendant pleaded g u i l t y to three counts of grand larceny d i d the J i s t r i c t court deferred imposition of sentence f o r one year. (The pre-sentence report showed defendant did have a p r i o r felony record, although there was no indication defendant was then without counsel). Almost a year l a t e r , on July 8, 1974, the Yellowstone Jounty attorney f i l e d a p e t i t i o n f o r revocation of the deferred ,=~itence alleging defendant committed the crime of larceny while SJLI probation. Defendant was represented a t the revocation hearing by a public defender. After hearing, the d i s t r i c t court revoked the deferred sentence and imposed a 10 year prison sentence. O n appeal t h i s Court affirmed on an issue not related t o t h i s present appeal. S t a t e v. Ryan, 166 Mont. 41-9, 533 P.2d 1076. While serving h i s time i n prison, defendant f i l e d a pro se proceeding with the sentencing court seeking t o vacate h i s 10 year sentence. He claimed he was e n t i t l e d t o be resentenced because the d i s r r i c t court improperly considered h i s felony record acquired before he pleaded g u i l t y t o the three counts of grand larceny. Defendant claimed t h i s t o be i l l e g a l , because he did not have counsel representing him. Upon receiving t h i s claim the d i s t r i c t court appointed the p u b l i c deiender to r e p ~ r s e n c ilei-e~rclant (the same public defender who had represented defendant a t the probation revocation hearing cind on the previous appeal). Defendant was not returned from prison t o p a r t i c i p a t e a t the hearing. Although the d i s t r i c t court did not hold an evidentiary hearing, it i s c l e a r the s t a t e did not dispute t h a t defendant's previous felony record was constitutionally infirm because he did rlot have counsel representing him. Accordingly, under those c i r - cumstances the d i s t r i c t court could not consider those previous telonies a s a basis f o r sentencing the defendant, a f t e r he had pleaded g u i l t y t o the l a t e r felonies. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L ed 2d 592. A s a b a s i s f o r keeping the sentence a t 10 years the d i s t r i c t court simply concluded the sentence would have been the same even i f he had not considered defendant's p r i o r felony record. W e have no way of knowing t h e processes used by the d i s t r i c t court judge i n i n i t i a l l y imposing Lhe 10 year sentence. Defendant, f i l i n g h i s b r i e f s pro s e , r a i s e s several issues but since we reverse and remand f o r resentencing we need only consider the issue of the previous felony convictions obtained while defendant was not represented by counsel. It i s c l e a r t h a t a sentencing court cannot r e l y upon a previuas criminal record i n sentencing i f t h a t record contains constitutionally infirm convictions. United States v. Tucker, supra. It i s undisputed here t h a t defendant was not represented by counsel when he was convicted of the previous felonies. However, the s t a t e contends the 10 year sentence imposed when h i s felony record was exposed t o the sentencing judge was cured when the d i s t r i c t judge stated the sentence would have been the same, even i-il ' ~ d hdJ 1 1 i ) t ' ~ I ~ U \ N ~ I JL fzhe p ~ e v i c ) u s f e l u ~ 1 ~ convictions. That i s not enough. There i s nothing i n the record t o support t h a t t ~ o s i t i o n , nor do w e think it i s the proper way of handling the .ituation. Apparently several federal courts have taken the position siniilar t o t h a t urged by the s t a t e . Lipscomb v. Clark, 468 F.2d 1.321 (5th C i r . ) ; Russo v. United S t a t e s , 470 F.2d 1357 (5th Cir.); Yilsey v. United States, 496 F.2d 619 (2d Ciz); United States v. Yermann, 524 F.2d 1103 (2d Cir.). The theory is t h a t the process ' 1 . ~ ~ been purified by the sentencing c o u r t ' s determination t h a t the 3e~itence he o r i g i n a l l y handed down would s t i l l be the same i f he had not had improper information before him. A defendant i s ~ i ~ l y e n t i t l e d t o be resentenced i f the sentencing court concludes Lhe improper information might have affected the sentence. W e lo .lot adopt t h i s approach. W e hold t h a t where it i s shown improper matters have been brought before the sentencing court f o r i t s consideration i n se~itencing, and where those matters a r e not disclosed and explained ~t the sentencing hearing, a defendant has a r i g h t t o be resentenced. This i s the best way of preserving the i n t e g r i t y of the sentencing process. The judgment of the d i s t r i c t court i s reversed and t h i s case i s remanded t o the d i s t r i c t court f o r resentencing. - - . Chief J u s t i c e

May 9, 1977

6d9e7b90-ae4e-43d7-91bc-76feaf7e2830

BELGRADE STATE BANK v SWAINSON

N/A

13473

Montana

Montana Supreme Court

No. 13473 I N THE SUPREI4E COURT O F THE STATE O F MONTANA B E L G R A D E STATE BANK, A Montana Corporation, P l a i n t i f f and Respondent, HERBERT EARL SWAINSON, i n d i v i d u a l l y , and a s GUARDIAN of t h e ESTATE O F WANDA K . SWAINSON, W E S T E R N SURETY C O M P A N Y , a corporation, MRS. ROBERT BLACK, JAMES HUNT and L A R R Y JORDAN, Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e S i x t h J u d i c i a l District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Huppert and Swindlehurst, Livingston, Montana Arnold Huppert argued, Livingston, Montana Swandal & Douglass, L'ivingston, Montana Kent Douglass argued, Livingston, Montana Byron L. Robb argued, Livingston, Montana For Respondent : Stephen Clarke Mackey argued, B i l l i n g s , Montana Towe, Neely and B a l l , B i l l i n g s , Montana Submitted: March 2 2 , 1977 Decided :@J 5 2 1977 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of the Court. Defendants appeal from the judgment of the d i s t r i c t court, Park County, f o r p l a i n t i f f Belgrade S t a t e Bank. I n 1966 Herbert Earl Swainson (Bert) was appointed guardian of h i s minor daughter's e s t a t e and proceeded t o manage the a s s e t s , which the daughter had inherited from her mother. A p a r t of the e s t a t e was used t o purchase a ranch near Livingston, Montana and the r e s t was put i n c e r t i f i c a t e s of deposit. The d i s t r i c t court judge who presided over the guardianship proceedings allowed the purchase of the ranch a s an investment but he made it c l e a r from the outset t h a t i n no way would he allow the guardianship t o become involved i n a ranching operation. I n 1968, Bert wanted t o run a c a t t l e operation on t h e ranch but he lacked funds with which t o purchase c a t t l e and equipment. He approached h i s brother Jack, who was the executive vice-presi- dent of the Belgrade State Bank, t o apply f o r a loan. Bert had already borrowed i n excess of h i s personal borrowing l i m i t . It was suggested it would look b e t t e r t o the bank examiners i f t h e loan was made t o the e s t a t e o r i n the name of the e s t a t e . After some negotiations with the bank and the judge, an agreement was reached. A p e t i t i o n was f i l e d i n the guardianship proceedings stating: I t That your p e t i t i o n e r made arrangements with a f i n a n c i a l i n s t i t u t i o n t o loan him s u f f i c i e n t money f o r the operation expense of said ranch, as well a s the purchase of c a t t l e , and said f i n a n c i a l i n s t i t u t i o n i s agreeable t o securing said loans with only the c a t t l e o r necessary equipment t h a t may be purchased from said loan funds; t h a t the financial i n s t i t u t i o n has advised your p e t i t i o n e r t h a t they a r e willing t o enter i n t o an Agreement t h a t , i n the event of default i n the payment of said obligations, t h a t they w i l l only look t o the security pledged a s c o l l a t e r a l f o r said loans, and w i l l i n no way seek any deficiency judgment, i n the event of foreclosure. I I The court required a l e t t e r from t h e bank agreeing t o t h i s arrangement and t h a t l e t t e r s t a t e s : "Belgrade, Montana April 21, 1969 "The Honorable Jack D. Shanstrom D i s t r i c t Judge Park County Courthouse Livingston, Montana "Dear Judge Shanstrom: "It is m y understanding t h a t you have signed an Order authorizing Herbert Earl Swainson, a s Guardian of the Person and Estate of Wanda K. Swainson, t o borrow money from our i n s t i t u t i o n f o r the purchase of c a t t l e and operating expenses. "It is m y further understanding t h a t your Order i s conditioned upon us agreeing t h a t , i n the event of default and foreclosure of our mortgage, t h a t the extent of the r e l i e f t o which we would be e n t i t l e d i s t o recover back our security, not t o seek any deficiency judgment against the other guardianship a s s e t s . " W e a r e willing t o do t h i s , with the exception of the f a c t t h a t there i s c e r t a i n farm machinery t h a t M r . Swainson has acquired through loans t h a t would a l s o be pledged a s security. This equipment was not purchased with guardianship funds but through loans with our i n s t i t u t i o n . "Very t r u l y yours, B E L G R A D E STATE BANK By John W. Swainson Executive Vice President. I I The c o u r t ' s order reads i n pertinent part: "Upon reading and f i l i n g t h e v e r i f i e d P e t i t i o n of HEEU3ERT EARL SFJAINSON, Guardian of the Person and Estate of WANDA K. SWAINSON, a Minor, and it appearing from said P e t i t i o n t h a t it i s t o the best i n t e r e s t s of the minor ward t h a t the Guardian be permitted t o borrow moneys t o purchase c a t t l e and t o operate said ranching business; and "IT APPEARING therefrom t h a t a financial i n s t i t u t i o n i s willing t o loan money for said purposes t o the Guardian, and has agreed t o l i m i t t h e i r r i g h t of recovery i n the event of default on said notes, t o repossession of the secured property, and not t o seek a deficiency against the guardianship funds ; "NOW, THEREFORE, I T IS HEREBY ORDERED That the said ~ u a r d i a n , ~ e r b e i t Earl Swainson, may secure loans for the purchase of c a t t l e and t o secure general operating expenses for the ranch owned by said minor ward, con- ditioned upon said financial institution delivering a l e t t e r to t h i s Court, by a qualified officer of said institution, that i n the event of default on said notes, they w i l l only repossess the property secured by said Chattel Mortgages, and w i l l not seek a deficiency judg- ment against any of the other guardianship assets. "Dated: This 23rd day of April, 1969 .'I A substantial amount of money was loaned. and over two hundred head of c a t t l e were purchased. I n l a t e October 1969, Bert Swainson entered into a c a t t l e leasing agreement with one Robert Black. By the terms of t h i s agreement, Bert Swainson would care for 87 head of Black's c a t t l e on the ranch and would receive 70% of the increase for doing this. The agreement provided that a l l the calves be branded with the Black brand; that Black pay a l l taxes on the c a t t l e ; and it s e t the time for the division of the increase as the time of the sale of the increase. The agreement further allowed Black t o select replacement heifers t o be credited against h i s 30% share of the increase. I n July 1970, Ed Towe, president of the Belgrade State Bank (Bank) had some doubts that a l l the c a t t l e purchased were on the ranch so he made a visual inspection. While he was making the inspection, he secured an o r a l accounting of the number of c a t t l e from Bert Swainson, which Towe recorded on a sheet of Swainson letterhead paper. The l i s t included 230 head of cows, 83 head of share cows, 185 calves branded with the estate brand and 56 calves of the leased cows which Swainson said were due him under the lease agreement. After t h i s v i s i t the Bank made two smaller loans for some equipment and t o purchase two Charolais bulls. I n mid-August, and again i n mid-September, the Bank loaned $4,000 on notes payable on demand. Less than a month a f t e r the l a s t $4,000 loan, onboctober 13, 1970 the Bank invoked the insecurity clause of i t s security agreement and took possession of a l l the estate's c a t t l e leaving a l l the lease cows and t h e i r calves on the Swainson ranch. During the summer prior to the seizing of the c a t t l e , the Bank obtained an assignment from Bert Swainson of h i s interest i n the lease c a t t l e and had attempted to get a consent from M r . Black. The Black-Swainson lease agreement contained a non-assign- a b i l i t y clause. N o consent was ever given by either Mr.,or Mrs. Black. Shortly a f t e r the Bank c a t t l e had been taken from the ranch, Larry Jordan, a bulk gasoline distributor and a creditor of the ranching operation, drove by the ranch on h i s distribution route and noticed the lease c a t t l e s t i l l on the land. Jordan approached another creditor of the ranching operation, James Hunt who owned a local lumber yard, and they approached Bert Swainson and offered t o buy a part of h i s interest i n the increase of the BUck c a t t l e , so that he could pay his debts t o them. After some negotiation a sale was arranged. Mrs. Black, whose husband died prior t o the Bank seizing the Swainson c a t t l e , transferred 36 calves, a l l branded with her brand, t o Hunt and Jordan, who gave her a check for the balance of the purchase price over what was owed t o them. M r s . Black had selected heifer calves a s replace- ments and a f t e r t h e i r weight was credited toward her 30% t 3 f the increase due under the contract and apparently a f t e r deducting the amount due her because the death loss exceeded that allowed under the contract, she paid Bert Swainson the balance due, as he requested, in cash. In May 1971, the Bank sent a notice of sale of the collateral to the guardian and the cattle were sold leaving a substantial amount still owing on the Bank's loans to the estate. On October 16, 1972, the Bank filed this action against the guardian, the surety company, and Mrs. Black. On December 3, 1973, the com- plaint was amended joining Hunt and Jordan as defendants. Due to the multiple defendants with conflicting interests, we are faced with numerous issues. In view of the fact we find several issues controlling and dispositive of various defendants, we set forth three issues: 1 ) This issue is directed at the court's failure to rule on the motions to dismiss made at the close of plaintiff's case and again at the close of defendants' case. 2) This raises the question of whether or not Bert Swainson was acting for the guardianship when he entered into the agree- ment of October 31, 1969, with the Bank. 3 ) Issue three concerns attorney fees. Issue 1 ) . This concerns the trial court's failure to grant the defendants' motions to dismiss, which were properly made ( 1 ) at the close of plaintiff's case, when the trial judge took them under advisement, and ( 2 ) at the close of all testimony. Our first consideration is to the motions to dismiss of defendants Black, James Hunt and Larry Jordan. We find the trial court erred in not granting their motions to dismiss. The security agreements dated February 14, 1969 and December 17, 1969, executed by Bert Swainson as guardian of the estate, each contained language stating that after-acquired livestock would be subject to the security agreement. The Bank filed a standard financing statement with the clerk and recorder of Park County. The debtor identified in the two documents filed was the "Wanda Swainson Ranch Estate", no additional debtor was named, no mention was made that after-acquired property was considered collateral. A year after the initial loan to the estate Bert Swainson, individually, entered into the Black contract to care, feed and breed the Black cattle and in return he was to receive 70% of the calf crop. No mention was made of the relationship he had with the estate. All testimony indicated this contract was entered by him as an individual, and all parties so understood that agreement. While Towe testified Bert told him the share cattle were to be considered collateral, this was denied by Bert. There is no testimony to indicate Bert told either the Blacks, Hunt or Jordan of any claim the Bank had to the calves. The Bank's claim rests entirely on the alleged statement of Bert Swainson and Towe testified: "* * * as far as we were concerned I didn't even know about the to lack-Swainson] contract and we weren't relying on that contract anyhow. The cattle were purported to us to be part of the collateral that we had under our security agreement. * + ; *If We find no reliable evidence that any measures were taken by the Bank to notify Mrs. Black of the alleged interest claimed by the Bank. The Bank tried to supply, through the testimony of Jack Swainson, a conversation with Mr. Black. Mr. Black died several m o ~ ~ i h s before repossession and Swainson admitted Black Aid not sign an assignment he had prepared f o r the Bank. A t the time the Bank repossessed i t s c a t t l e , Jack Swainson called Mrs. Black and made no mention of any i n t e r e s t the Bank had i n the share calves. O n October 13, 1970, the Bank repossessed i t s c a t t l e from the ranch. Mrs. Black's cows and calves were not taken, nor was the s h e r i f f notified of any i n t e r e s t t h a t the Bank claimed. The calves remained on the Swainson ranch f o r two weeks when, on October 27, 1970, Mrs. Black and Bert Swainson made a division of the calves. A t a l l times the cows and calves had the Black's brand on them. It was not u n t i l the division of the calves t h a t Jordan and Hunt came onto the scene i n an e f f o r t t o c o l l e c t debts owed them by Bert Swainson. Swainson directed Mrs. Black t o give a b i l l of s a l e t o Hunt and Jordan, who purchased 36 calves, credited Swainson's account and gave him the remainder. Some two years l a t e r , on October 16, 1972, s u i t was f i l e d against Mrs. Black alleging conversion of 56 calves. Here, the Bank went t o considerable e f f o r t i n seeking and getting the approval of the court f o r the loan t o the e s t a t e . N o such e f f o r t s were made by e i t h e r the Blacks o r Swainson i n regard to t h e i r contract. The court was unaware of the Black contract u n t i l l i t i g a t i o n began. The contract between the Blacks and Bert Swainson contained a provision prohibiting assignment o r hypothe- cation of the contract by e i t h e r party, without the written con- sent of the other. The contract is valid and the Bank is estopped from attacking i t s v a l i d i t y . I n addition, Swainson having f a i l e d t o get any assignment from Black, the Bank dealt with Bert Swain- son a t i t s own r i s k . Pasadena Investment Co. v. Pasadena A i r Products l r i c . , 234 E.Supp. 128; Parkinson v. Caldwell, 126 C.k.2d j4c3, 272 P.2d 934; Union Bond & Trust Co. v. M & M Wood Working Co., 256 O r . 384, 474 P.2d 339, 352; 3 Williston on Contracts 3rd. d., $422; 12 Hastings Law Journal 397, 403. In finding t h a t the court erred i n not granting M r s . Black's rnorion co dismiss, it follows t h a t Hunt and Jordan's motion should a l s o have been granted because Mrs. Black had good t i t l e t o transfer. W e next consider whether or not the court erred i n not granting the motion t o dismiss Western Surety Company, the bonding company f o r the Estate of Wanda K. Swainson. Defendant surety company argues it was not a proper party t o the action, and neither the complaint nor proof sustains a claim upon which r e l i e f can be granted. Further, t h a t the bond issued i s t o indemnify the ward against defalcations by the guardian; and u n t i l there i s a loss by the guardianship e s t a t e there can be no l i a b i l i t y on the bond. Burns v. Massachusetts Bonding & Ins. Co., 62 C.A.2d 962, 146 P.2d 24. Western Surety Company argues there can be no l i a b i l i t y against the surety company f o r these reasons: 1) The surety company i s not l i a b l e because the guardianship suffered no loss; 2) The c o u r t ' s order approving the loan transaction i s i l l e g a l under ~ o n t a n a ' s guardianship law; and 3) The c o u r t ' s order approving the loan transaction bars any recovery against it by the Bank. W e concur with Western's argument t h a t u n t i l there i s a defalcation by the guardian, and a l o s s t o the ward, there can be no l i a b i l i t y on the p a r t of the surety company. As t o the second point of the argument t h a t the transaction w a s i l l e g a l , we do not concur. Here he court approved only a loan t o Swainson, specifically ordering t h a t the guardianship would i n no way be l i a b l e f o r any losses. The court, a t the re- quest of the Bank and Bert Swainson, made a specific e f f o r t t o protect the guardianship a s s e t s and the p a r t i e s completely under- stood the loan and i t s limits. I n addition, under Montana's guardianship s t a t u t e s and case law, a guardian has no power t o borrow money from o r t o encumber property of h i s ward without prior approval of the court. Davidson v. Wampler, 29 Mont. 61, 74 P. 82; Alexander v. Windsor, 107 Mont. 152, 81 P.2d 685; Mitchell v. McDonald, 114 Mont. 292, 136 P.2d . 536; Anno. Guardian's Unauthorized Acts, 130 A L R 113-116; 39 Am Jur 2d, Guardian and Ward, § § 91,99; 39 C.J.S. Guardian and Ward, 5 76. I n the i n s t a n t case, the' Bank was required.to f i l e a cove- nant-not t o sue against the e s t a t e , before getting the c o u r t ' s permission t o make the loan. The,re has been no loss t o the e s t a t e nor could there be under the covenant. The Bank's business was with Bert Swainson personally f o r the agreement made by the Bank with the court absolves the e s t a t e of any l i a b i l i t y and the surety i s not l i a b l e on the bond. Sago v. Ashford, 145 Colo. 358 P.2d 599 289f;Western Machinery Co. v. Northwest Improve. Co., 254 F.2d 453. W e note here t h a t the Bank a t a l l times admitted it had no claim against the a s s e t s of the e s t a t e i n view of the c o u r t ' s order, but i f the judgment of the t r i a l court prevailed there was no assurance t h a t the bonding company would not proceed against the guardianship f o r the $10,000 of the bond. The second issue i s whether o r not Bert Swainson could i n any way encumber the guardianship i n making t h i s agreement with the Bank. A l l the evidence c l e a r l y shows the e n t i r e transaction was between the Bank and Bert Swainson. The guardianship became involved only a s a paper front because of banking requirements. The guardianship e s t a t e l e n t i t s name so the Bank could make additional loans t o Bert Swainson a f t e r he had exceeded h i s borrowing capacity. It did so knowingly a f t e r the d i s t r i c t judge supervising the guardianship directed t h a t there was t o be no l i a b i l i t y of any kind against the guardianship. Considering the f a c t s here, where the Bank was i n the unique position with r e l a t i o n t o i t s loan t o Bert Swainson, it cannot shield i t s e l f by looking t o anyone but Bert Swainson. The t h i r d issue concerns attorney fees and needs l i t t l e discussion i n view of our holding i n t h i s case. The t r i a l court erred i n granting attorney fees t o the Bank against each defendant. The Eank argues t h a t the provisions of section 87A-9-201, 9.C.M. 1947, recognize attorney fees i n the collection of any secured obligations against not only the borrower but purchasers aL c o l l a t e r a l and other creditors. Section 93-8613, R.C.M. 1947, provides f o r counsel fees on foreclosures. Answering defendants' argument t h a t attorney fees are reciprocal under section 93-8601.1, R.S.M. 1947, the Eank argues t h a t due t o the dates on the security i n t e r e s t s the provisions i n the s t a t u t e a r e not applicable because rhe s t a t u t e allowing reciprocal rights was passed a f t e r the 5 e ~ u r i t y agreements were signed. W e find no merit t o the Rank's argument. Section 93-8613 is dpplicable solely t o foreclosure actions o r t o security i n t e r e s t s irk :>ersonal property. Except for the action against the e s t a t e , the coillplaint .illeges a tortious conversion against Black, Hunt a ~ l d Jordon. The section a s t o these defendants i s not applicable. A l l defendants, except Herbert Earl Swainson, are e n t i t l e d to dtrorney fees by v i r t u e of section 93-8601.1, R.C.M. 1947. The s t a t u t e i s procedural i n nature and applies t o actions com- rnerlced a f t e r i t s e f f e c t i v e date, even though such action arose x ~ t of events occurring p r i o r thereto. Crncevich v. Georgetown Xec. Corp., 168 Mont. 113, 541 P.2d 56, 32 St.Rep. 963; Anno. 18 ALR3d 733, 736, 740. The judgment of the d i s t r i c t court against Herbert Earl Snainsdn individually is affirmed, but reversed a s t o a l l other delendants. The cause i s remanded with directions t o f i x a t t o r - qey fees f o r defendants.

May 12, 1977

df03ab75-3bc0-47ea-88e1-08b51ffc3f98

FLANSBURG v PACK RIVER CO IND

N/A

13474

Montana

Montana Supreme Court

N o . 1 3 4 7 4 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 7 JOHN FLANSBURG, C l a i m a n t and A p p e l l a n t , PACK RIVER COMPANY, E r n p l - o y e r and INDUSTRIAL INDEMNITY COFIPANY, D e f e n d a n t and R e s p o n d e n t . A p p e a l f r o m : Workers' Comp. C o u r t W i l l i a m E. H u n t , Judge presiding. C o u n s e l of R e c o r d : For A p p e l l a n t : H o y t and B o t t o m l y , G r e a t F a l l s , M o n t a n a John C. H o y t argued and Tommy L e w i s appeared, G r e a t F a l l s , M o n t a n a For R e s p o n d e n t : M a r r a , Wenz and I w e n , G r e a t F a l l s , M o n t a n a Joseph R. M a r r a argued and C h a r l e s R. Johnson argued, G r e a t F a l l s , M o n t a n a S u b m i t t e d : January 2 7 , 1 9 7 7 D e c i d e d : 1 7 1 m F i l e d : Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Claimant and his employeps Plan I1 insurer agreed to a $9,000 lump sum settlement of a claim under the Workmen's Compensation Act. A dispute subsequently arose whether this settlement was for permanent partial disability benefits or permanent total disability benefits. The Workers' Compensation Court held it was a valid and binding settlement of permanent partial disability benefits from which claimant appeals. The controlling issue is the sufficiency of the evidence to support the finding that the agreement was a valid and bind- ing settlement of permanent partial disability benefits. Claimant John Flansburg sustained an injury arising out of and in the course of his employment with Pack River Company on October 7, 1973. He was paid biweekly benefits from October 8, 1973, to May 19, 1975, at the temporary total disability rate of $110. During this period he was granted two lump sum advances of $800 each representing compensation for 13 plus weeks at the temporary total disability of $60 per week to be credited against the total compensation when finally determined. On March 16, 1975, claimant's treating physician sub- mitted a medical report in which he rated claimant's spine as being 30% impaired. On March 25, 1975, a meeting was held, attended by claim- ant, his wife, his attorney, and the claims supervisor for Industrial Indemnity Company, the employer's workers compensation insurer. This resulted in an agreement for a $9,000 final com- promise settlement, reservation of medical and hospital benefits under the Workmen's Compensation Act, and a waiver by the insurer of " * * * repayment of any Social Security payments or over- payments claimant may receive in the future." Claimant and the insurer petitioned the Workmen's Compensation Division (WCD) f o r approval of t h i s s e t t l e m e n t . The WCD approved t h e p e t i t i o n and ordered t h e claim c l o s e d a s f i n a l l y s e t t l e d , s u b j e c t t o t h e r i g h t of t h e WCD, f o r good cause, t o r e s c i n d , a l t e r o r amend t h e f i n a l s e t t l e m e n t w i t h i n 4 years. Payment was made by t h e i n s u r e r . T h e r e a f t e r it developed t h a t t h e f e d e r a l S o c i a l S e c u r i t y Administration interceded t o reduce c l a i m a n t ' s s o c i a l s e c u r i t y d i s a b i l i t y b e n e f i t s by a n o f f s e t permitted i n p a r t i a l d i s a b i l i t y c a s e s . Claimant then p e t i t i o n e d t h e Workers' Compensation Court f o r a hearing t o determine t h a t claimant was t o t a l l y d i s a b l e d o r i n t h e a l t e r n a t i v e t o r e s c i n d t h e approval of t h e s e t t l e m e n t by t h e WCD. A hearing was held a t which t h e Workers' Compensation Court determined t h a t t h e f u l l and f i n a l s e t t l e m e n t agreement e n t e r e d i n t o between claimant and t h e i n s u r e r on March 25, 1975, i n t h e amount of $9,000, was a v a l i d and binding s e t t l e m e n t of permanent p a r t i a l d i s a b i l i t y b e n e f i t s . Claimant's p e t i t i o n was denied. Our f u n c t i o n on appeal i s t o determine whether t h e r e i s s u b s t a n t i a l evidence t o support t h e f i n d i n g of t h e Workers' Compensation Court. Kimball v. Continental O i l Co., Mont . , 550 P.2d 912, 33 St.Rep. 517. I n c a s e s of t e s t i m o n i a l c o n f l i c t , a s here, t h e a p p l i c a b l e law has been s t a t e d i n t h i s language i n Cartwright v. I n d u s t r i a l A c . Brd., 115 Mont. 596, 599, 147 P.2d 909: "Our f u n c t i o n i n t h i s c a s e i s t o determine whether o r n o t t h e r e i s s u b s t a n t i a l evidence t o support t h e judgment of t h e d i s t r i c t c o u r t . A s can be immediately a s c e r t a i n e d from t h e foregoing summary of t h e evidence, t h e r e i s a complete t e s t i m o n i a l c o n f l i c t between t h e p a r t i e s . I n such a s i t u a t i o n , t h e i s s u e becomes one of c r e d i b i l i t y of t h e w i t - nesses which is and must be concluded by t h e I n d u s t r i a l Accident Board which had t h e opportunity to observe the witnesses as they testified * * *." Although the evidence is conflicting in some respects, we find substantial evidence to support the finding of the Workers' Compensation Court that the agreement was a full, final, valid, and binding settlement of permanent partial disability benefits under the Workmen's Compensation Act. The supporting evidence consists in part of the following: (1) The testimony of Jerry Friesen; (2) the medical evidence of claimant's treating physician of a 30% impairment of the spine; (3) the absence of any medical evidence of total permanent disability; (4) the correlation of the settlement amount of $9,000 with 150 weeks X claimant's permanent partial compensation rate of $60 per week; (4) the correlation of the 30% disability rating with the 150 week period out of a 500 week maximum; (5) the "compensation advice" form accompanying the settlement draft indicating a weekly compensation rate of $60, claimants rate for permanent partial disability; (6) the absence of any relationship between the $9,000 settlement and the $110 weekly rate to which claimant would be entitled for permanent total disability; and (7) the incredible situation of fully and finally settling a claim for permanent total disabil- ity for $9,000 that had a mathematical potential of approxi- mately $125,000 in benefits based on claimant's life expectancy. We note that the order of the WCD provides that the settlement can be reopened at any time within four years for good cause. Section 92-826, R.C.M. 1947. The judge of the Workers' Compensation Court has continuing jurisdiction to change the award at any time within four years if claimant's disability changes. Section 92-848(4), R.C.M. 1947. We have noted the additional and peripheral arguments raised by claimant in this appeal and find that none would affect our decision in this case. The findings of fact and conclusions of law of the Workers1 - 4 - Compensation Court are affirmed in all respects. Justice We. , . . conpur : /" c ~ ; L £ Justice i L,. Justices V

March 16, 1977

2008c300-91bf-41c7-a750-91eb3819a578

TALLBULL v WHITNEY

N/A

13488

Montana

Montana Supreme Court

No. 13488 IN THE SUPREME COURT OF THE STATE OF PlONTANA IRENE TALLBULL, VERNON TALLBULL, EDMOND TALLBULL, as the surviving heirs, et al., Plaintiffs and Appellants, RICHARD WHITNEY, THE CITY OF FORSYTH, MONTANA, and the COUNTY OF ROSEBUD, MONTANA, Defendants and Respondents. Appeal from: District Court of the Sixteenth Judicial District, Hon. Alfred B. Coate, Judge presiding. Counsel of Record: - For Appellants: Robert H. Skaggs Cate, ~ ~ n a u ~ h l - ~ i t z g e r a l d & Huss, Billings, Montana For Respondents: Anderson, Symrnes, Forbes, Peete & Brown, Billings, Montana Weymouth D. Symmes argued, Billinqs, Montana Crowley, Haughey, Hanson, Gallagher & Toole, Billings, Montana Submitted: March 18, 1977 Filed: &&J L L ' y i i Mr. Justice Frank I. Haswell delivered the Opinion of the Court. In a medical malpractice action, summary judgment was granted in favor of defendant physician by the district court of Rosebud County. Plaintiffs appeal. Plaintiffs are the surviving heirs of Henry Tallbull and the administratrix of his estate. Defendants are Dr. Richard Whitney, a Forsyth, Montana physician; the City of Forsyth; and Rosebud County, Montana. The action alleges medical malpractice and abandonment of treatment by,Dr. Whitney upon Henry Tallbull resulting in his death on February 16, 1973. In general terms, pretrial discovery indicated that the immediate cause of death was an infection that had spread throughout Tallbull's body following an apparent break- ing of an abscess in his groin. Numerous possible secondary com- plicating conditions were disclosed including alcoholism and withdrawal effects, diabetes, tuberculosis, and urinary tract infection. In early February, Dr. Whitney had hospitalized Tallbull in the Rosebud County Hospital where he embarked upon a course of treatment. Defendants city and county are alleged to have removed Tallbull from the hospital and incarcerated him in jail on the instructions of Dr. Whitney but without legal grounds, interrupt- ing Tallbull's course of treatment and jointly contributing to his ultimate death. After his release from jail, Tallbull consulted Dr. Jon Kay at Crow Agency, Montana. He was under Dr. Kay's care from February 6 until the early morning hours of February 16 when he was transported to the Deaconess Hospital in Billings, Montana, for a superpubic cystostomy. Tallbull died as soon as he arrived there. On March 13, 1976, plaintiffs deposed Dr. Kay. His deposition - 2 - testimony comprises the only expert opinion evidence of mal- practice on the part of Dr. Whitney. On June 17, 1976, the district court granted Dr. Whitney's motion for summary judgment on the sole ground that Dr. Kay could not testify as a matter of law under the Montana "locality rule". Plaintiffs appeal from the summary judgment granted Dr. Whitney. The claims of plaintiffs against the City of Forsyth and Rosebud County are not involved in this appeal. The underlying issue on appeal is whether Dr. Kay is competent to testify as an expert medical witness on the standard of care required of Dr. Whitney. The core of plaintiffs" position is that a physician who is familiar with the standard of medical practice in "the same or a similar community in Montana" is competent to testify as an expert medical witness concerning the required standard of care and breach thereof alleged to constitute medical malpractice. Plaintiffs' arguethat a reasonable interpretation of Montana's "locality rule" does not bar the testimony of a treating physician who did not practice in the precise community where the alleged malpractice occurred. plaintiffs' poikout many undesirable results that would follow if Montana's "locality rule" were given a "narrow and stifling application" requiring actual practice in the particular town as a requirement of competency to testify. The principal contention of defendant is that Dr. Kay is not competent to testify because he is not familiar with the standard of medical care either in Forsyth or a similar community in Montana. Defendant argues that Montana's existing "locality rule" requires a physician to conform to the standard of medical care in the community in which he practices; that there are valid reasons for retention of this rule in Montana regardless of justi- fication for its abandonment in metropolitan areas; and that Dr. Kay is not competent to testify concerning the standard of medical care in Forsyth because he admits unfamiliarity with it. Additionally defendant claims that even if Montana's "locality rule" is broadened to include "similar communities", Dr. Kay is incompetent to testify because he is not familiar with the standard of medical care in any community in Montana similar to Forsyth. For a collection of cases on the general question here involved, see Anno: 37 ALR3d 420, Malpractice Testimony: Compe- tency of physician or surqeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicinq in another locality. At the outset, it is important to note that the sole basis of the district court's summary judgment is the interpre- tation and application of Montana's "locality rule" to the compe- tency of Dr. Kay as an expert medical witness on the standard of medical care. The district court acknowledged the existence of a factual dispute concerning the question of the alleged negli- gence or malpractice of Dr. Whitney and specifically stated that " * * * The only question decided by this Order is the 'locality rule'. * * *" As this was the only question considered or de- cided by the district court, we limit our decision on appeal to this single issue. The factual foundation for Dr. Kay's competency as an expert medical witness on the standard of medical care required of Dr. Whitney is contained in Dr. Kay's deposition. The deposi- tion was taken in Billings, Montana on March 13, 1976. It dis- closes that Dr. Kay is presently practicing pediatrics and general medicine in Potsdam, New York, a town of about 16,000 drawing from a population of about 50,000. He received his B.A. degree from Stanford University in 1965 and his M.D. from Columbia University in 1969. He interned at Harlem hospital in New York for 8 months in medicine and four months in pediatrics from 1969 to 1970. He then completed a two year residency in pediatrics at Strong Memorial Hospital in Rochester, New York. He was employed by the United States Public Health Service, Indian Health Service, at the Crow Indian Hospital, Crow Agency, Montana, from July, 1972 to June, 1974. Dr. Kay is licensed to practice in New York and in California but was not licensed to practice in Montana since he was practicing at a federal facility. In his practice at Crow Agency, Dr. Kay generally serviced the population on the Crow and Northern Cheyenne Indian Reservations. He had examined and treated Henry Tallbull following Dr. Whitney's treatment of him, and he had consulted with Dr. Whitney on Dr. Whitney's prior treatment of Tallbull. Dr. Kay had never been in Forsyth or in the Rosebud Community Hospital. He had heard of Dr. Whitney and possibly of Dr. Cope, the other physician in Forsyth, but had never met them. He had been to St. Vincent's Hospital in Billings on about three occasions to visit patients and doctors. He had never been to the Miles City or Glendive hospitals. He had been to the Hardin, Montana hospital three or four times. He had not been to the Sheridan, Wyoming hospital. Dr. Kay had had professional discussions of patients and medical problems with physicians in Hardin and Billings and had examined records of patients he was treating who had been treated by other physicians in the area. Dr. Kay's deposition testimony on his familiarity with the standard of medical care is summarized and focused in the following questions and answers. On direct examination by plain- tiffs' attorney, Dr. Kay testified: "Q. ~uring the time you were at Crow Agency, did you become familiar with the standard of medical practice in the locality of Crow Agency, Eastern Montana, Forsyth area? A. Yes, I did." On cross-examination by defendant's attorney, Dr. Kay testified: "Q. On what do you base your testimony that you are familiar with the standards of practice in Forsyth, Montana? A. I'm not exactly sure that I said I'm familiar with the practice in Forsyth, Montana, per se. I don't think I ever said that. If I did I will have to see it." (Emphasis supplied.) Prior decisions of this Court have stated Montana's "locality rule" in varying language. In earlier times, Montana's rule has stated that a physician or surgeon assumes the obligation to his patient of exercising such reasonable care and skill "as * * * is usually exercised by physicians or surgeons of good standing, of the same system or school of practice in the com- munity in which he resides, having due regard to the condition of medical or surgical science at that time " and that the law is primarily concerned with whether the physician has acquitted himself in the treatment of a particular patient " * * * accord- ing to the measure of the standard of those of recognized schools who practice in the same or similar communities". Hansen v. Pock, 57 Mont. 51, 59, 60, 187 P. 282. The rule has been stated in terms of the standard of practice of the school of medicine to which the physician belongs in the community in which he resides. Louden v. Scott, 58 Mont. 645, 194 P. 488; Dunn v. Beck, 80 Mont. More recently, in the case of a dentist, we have stated: "A dentist who undertakes to treat a patient assumes duty to that patient to exercise such reasonable care and skill as is usually exercised by a dentist in good standing in the community in which he resides." Negaard v. Feda, 152 Mont. 47, 53, 466 P.2d 436; To the same effect applied to a physician, see Collins v. Itoh, 160 Mont. 461, 503 P.2d 36. We have also quoted with approval from Dunn, the rule that requires a surgeon in his treatment of a patient to "employ such a degree of skill and diligence as surgeons practicing in the general neighborhood, pursuing the same line of practice, ordinarily display in like cases." Doerr v. Movius, 154 Mont. 346, 350, 463 P.2d 477. We have also stated the standard of medical care in terms of "the general medical custom and practice of [the physician's] community". (Bracketed material substituted.) Montana Deaconess Hospital v. Gratton, Mont . , 545 P.2d The value of these cases in measuring the precise bound- aries of Montana's locality rule is questionable. Varying state- ments of the rule can be excised from the opinions in these cases supporting locality limitations to "the community in which [the physician] resides", "the same or similar communities", or "the general neighborhood". However, none of the Montana cases pre- sented the issue involved in this appeal. In our view, we must resort to logic rather than Montana precedent in determining this issue. Initially we observe that the foundation of the "same locality" rule no longer exists. A good description of its under- lying basis is: "The original reason for the 'locality rule' is apparent. When there was little inter-community travel, courts required experts who testified to the standard of care that should have been used to have a personal knowledge of the practice of physicians in that particular community where the patient was treated. It was the accepted theory that a doctor in a small community did not have the same opportunities and resources as did a doctor practicing in a large city to keep abreast of advances in his profession; hence he should not be held to the same standard of care and skill as that employed by doctors in other communities or in larger cities * * *." Pederson v. Dumouchel, 72 Wash.2d 7 : 431 P.2d 973. Also see Warnock v. Kraft, 30 C.A.2d 1, 85 P.2d 505; Hundley v. Martinez, W.Va. (1967), 158 S.E.2d 159, 167; Gist v. French, 136 C.A.2d 247, 288 P.2d 1003. Today the accessibility of medical literature; the frequency and availability of national, regional and state medical meetings; advances in communication of medical knowledge; and transportation advances, to name a few, no longer isolate the physician in a rural community in Montana from the opportunities and resources of physicians practicing in the same medical community in the more populous regions of this state. See Harney, Medical Mal- practice, 1973 edition, Sec. 3.3, p . 95, and cases cited therein. While cogent reasons may still exist for differentiation of the standard of care required of physicians practicing in large metropolitan areas of the east, midwest, and coastal regions of this country from that of a rural physician in eastern Montana, such reasons are based on other considerations not applicable to particular medical communities within this state. Another reason against limiting the locality rule to the standard of care in the specific rural town involved is that the customary practice there may itself constitute negligence. In our view, the customary practice in a rural town is not the sole test of acceptable medical practice or the standard of medical care required; rather it is but one factor in determining the required standard and is not conclusive in itself. For obvious reasons, the required standard of medical care in a rural town should not be determined exclusively by the usual and customary medical practices of one or two physicians who practice there. For a more detailed rationale, see Prosser Torts, 4th Ed., p. 165; Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 239 N.E.2d 368; Morgan v. Sheppard, Ohio App. (1963), 188 N.E.2d 808; Darling v. Charleston Community Memorial Hospital, 33 I11.2d 326, 211 N.E.2d 253. Finally, considerations of public policy persuade us to reject the view that Montana's "locality rule" should be limited to the particular rural town where the physician practices. If such a limiting rule were to prevail, the patient for practical purposes would be deprived of any effective remedy for malpractice i n many cases. Hundley, supra, explains t h i s f a c t o r i n t h e following language: " ' * * * The w e l l known r e l u c t a n c e of doctors t o t e s t i f y a g a i n s t one another, which has been mentioned now and then i n t h e d e c i s i o n s , may make t h i s [expert medical testimony] d i f f i c u l t o r impossible t o o b t a i n . ' Therefore, i f a plain- t i f f i n a malpractice a c t i o n i s not permitted t o o b t a i n e x p e r t testimony of a physician who p r a c t i c e s o u t s i d e t h e domain of t h e defendant doctor, he may be denied completely t h e opportunity of proving t h e negligent a c t s of which he complains." I n accord: Christy v. Saliterman, 288 Minn. 1 4 4 , 179 N.W.2d 288; Sampson v. Veenboer, 252 Mich. 660, 234 N.W. 170; Johnson v. Winston, 68 Neb. 425, 94 N.W. 607; Carbone v. Warburton, 1 1 N . J . 418, 94 A.2d 680. I n a r u r a l town where a c t u a l substandard medical c a r e e x i s t s , r e s t r i c t i n g t h e l o c a l i t y r u l e t o t h e standard of medical c a r e i n t h a t p a r t i c u l a r town would measure t h e physician's diag- n o s i s and treatment of h i s p a t i e n t by an impermissible standard. This policy consideration has been s t a t e d i n t h i s manner i n Restatement of T o r t s , 2nd, Sec. 299A, note ( g ) : "Allowance must be made a l s o f o r t h e type of community i n which t h e a c t o r c a r r i e s on h i s p r a c t i c e . A country doctor cannot be expected t o have t h e equipment, f a c i l i t i e s , experience, knowledge o r opportunity t o o b t a i n it, afforded him by a l a r g e c i t y . The standard i s not, how- ever, t h a t of t h e p a r t i c u l a r l o c a l i t y . I f t h e r e a r e only t h r e e physicians i n a small town, and a l l t h r e e a r e highly incompetent, they cannot be permitted t o s e t a standard of u t t e r i n f e r i o r i t y f o r a f o u r t h who comes t o town. The standard i s r a t h e r t h a t of persons engaged i n s i m i l a r p r a c t i c e i n s i m i l a r l o c a l i t i e s , considering geographical l o c a t i o n , s i z e , and t h e c h a r a c t e r of t h e community i n general." Additionally, such a l i m i t a t i o n of t h e " l o c a l i t y r u l e " t o t h e s p e c i f i c r u r a l town removes an i n c e n t i v e f o r improvement of medical c a r e t h e r e . Defendant emphatically p o i n t s o u t t h e d i f f i c u l t y t h a t some r u r a l e a s t e r n Montana towns have i n securing and r e t a i n i n g physicians a s j u s t i f i c a t i o n f o r t h e l i m i t i n g r u l e . While t h i s s i t u a t i o n is undoubtedly t r u e i n some c a s e s , t h e l o g i c of this approach is questionable. It appears to be based on the proposition that a negligent physician offering substandard medical care is preferable to no physician at all. We decline to accept this simplistic statement of the available alternatives. Many factors not germane to the issue on appeal may well contribute to this situation. And if this logic were to prevail, some rural eastern Montana towns might well be permanently deprived of the standard of medical care to which they are entitled by removal of an incentive to improvement. For the foregoing reasons, we hold that Montana's "locality rule" imposes on a physician undertaking the care of a patient the legal duty of possessing and exercising that reasonable and ordinary degree of learning, skill and care possessed and exercised by physicians of good standing of the same school of practice in the same or similar locality in Montana. A similar locality in Montana within the meaning of this rule is a locality of similar geographical location, size, and character in a medical context. Is Dr. Kay competent to testify as an expert medical wit- ness on the standard of care required &Dr. Whitney in his diag- nosis and treatment of Henry Tallbull under the foregoing locality rule? Dr. Kay's medical training and knowledge are not in dispute. His familiarity with the standard of practice in Forsyth or a similar locality is the focus of the dispute. The specifics of his familiarity as contained in his deposition have been previously set out. In general, his deposition in- dicates that while he is unfamiliar with the standard of care in Forsyth per se, he is familiar with the standard of practice in Crow Agency, in eastern Montana and in the Forsyth area. He recounts the basis for such familiarity in his deposition. A basis is laid in his deposition showing the locality in which he practiced is similar to Forsyth in geographical location, s i z e and c h a r a c t e r from a medical standpoint. W e hold, t h e r e - f o r e , t h a t D r . Kay i s competent t o t e s t i f y a s t o t h e standard of medical c a r e . The conclusions D r . Kay reaches concerning t h e r e q u i r e d standard and its breach by D r . Whitney a r e , of course, matters t o be decided by t h e jury. They a f f e c t t h e weight t o be given h i s testimony r a t h e r than h i s competency as a witness o r t h e a d m i s s i b i l i t y of h i s testimony. These i s s u e s cannot be resolved by summary judgment as they involve genuine i s s u e s of material f a c t . Rule 56 (c) , M.R.Civ.P. For t h e foregoing reasons t h e summary judgment granted D r . Whitney i s vacated and t h e cause i s remanded t o t h e d i s t r i c t c o u r t of Rosebud County f o r f u r t h e r proceedings. J u s t i c e Y J u s t i c e s "' . . . . . . . . . . . . . M r . Justice John Conway Harrison specially concurring: I concur i n the result reached by the majority i n t h i s Opinion but not i n a l l that is said therein.

May 11, 1977

710a8caa-8c35-4f08-94da-7432cd4c49b3

STATE v CARISCH THEATRES INC

N/A

13596

Montana

Montana Supreme Court

No. 13596 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE OF MONTANA on the relation of May Jenkins, Treasurer for Yellowstone County, State of Montana, Plaintiff and Respondent, CARISCH THEATRES, INC., Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Crowley, Haughey, Hanson, Gallagher and Toole, Billings, Montana For Respondent: Harold Hanser, County Attorney, Billings, Montana Cause submitted on briefs. Submitted: May 4, 1977 Decided: JON - 9 1~ 9. M r . Chief Justice Paul G. Hatfield delivered the Opinion of the Court : This appeal from the d i s t r i c t court, Yellowstone County, concerns the licensing of motion picture theaters. From 1971 through 1976 C a r k h Theatres, Inc. (Carisch) operated one drive-in theater and three theaters i n the Cine 3 complex within the c i t y l i m i t s of Billings, Montana. The treasurer of Yellowstone County, M a y Jenkins, claimed $100 per theater per year must be paid as a license fee, pursuant t o section 84-3201(2), R.C.M, 1947. Carisch remitted payment of $25 per theater per year for the years 1971, 1972 and 1973. N o payment was made t o the treasurer i n the succeeding years. Thereafter, t h i s action was f i l e d against Carisch to collect the alleged license taxes due. The case was submitted t o the d i s t r i c t court on a stipulation by the parties stating that Carisch's business a t the theaters was limited to the exhibition of moving picture shows and the sole question was whether Carisch i s a theater, as contemplated by section 84-3201(2) and therefore required t o be licensed for four theaters under that section, o r whether Carisch i s an exhibitor of moving pictures as contemplated by section 84-3205, R.C,M. 1947, and only responsible for a license under that section. The d i s t r i c t court entered an order requiring Carisch t o pay a license tax for the years 1971 through 1976 for i t s fourr theaters in the t o t a l amount of $2,400 pursuant t o section 84-3201(2). Carisch appealed from t h i s order contending that section 84-3205 and not section 84-3201(2) i s the only statute which could require a license tax for motion picture theaters. Furthermore, Carisch argues section 84-3205 i s no longer i n effect and consequently no license tax i s due for the operation of the Carisch theaters. A brief history of legislation concerning the licensing of motion picture theaters in Montana will enable us to analyze the issues presented. Section 84-3201(2) reads : "2. The manager or lessee of every theater (not a variety or concert theater) one hundred dollars ( $ 1 0 0 . 0 0 ) per annum; except that in towns of a population of three thousand five hundred (3500) or less, in cases where no monthly license is paid, a license of two dollars ($2.00) for each single per- formance must be paid; for each single exhibition of opera or concert singer (not exhibited in any theater where a yearly license is paid), three dollars ( $ 3 . 0 0 ) ; for minstrels, legerde- main, or shows not herein provided for, five dollars ($5.00) for each single performance (when not in a theater where a yearly license is paid); for each variety or concert theater, whether an admittance fee is charged or not, seventy-five dollars ($75.00) per month; for every traveling show exhibiting in tents, open air or other than a regular theater, such as circuses, menageries, side shows, carnivals, wild west shows, animal shows or tent shows, traveling in less than twenty-five (25) railroad cars, seventy-five dollars ($75.00) per day, over twenty-five (25) railroad cars, two hundred dollars ($200.00) per day, traveling on highways in ten ( 1 0 ) trucks or less, twenty-five dollars ($25.00) per day, eleven (11) to twenty- five (25) trucks, fifty dollars ($50.00) per day, more than twenty-five (25) trucks, seventy-five dollars ($75.00) per day; but no license must be collected from any amateur exhibition or concert for school or charitable or religious purposes, from any county, district or state agricultural fairs, rodeo associa- tions, or from any veterans' organizations not conducted for private gain. "Provided the county treasurer shall not issue any license for circuses, side shows, carnivals, menageries, wild west shows, animal shows or tent shows to be held or performed within a period of thirty days just prior to or during the holding of any local, county, district or state fair or rodeo without first obtaining the written consent of the board of county commissioners of the county where application is made for such licenses to operate such shows." (Emphasis supplied.) This section was enacted in 1903 and was amended four times, in 1935, 1945, 1949 and 1953. Those parts of the section emphasized above show the result of those amendments. In 1913, the legislature adopted section 84-3205. This section has never been amended. It provides: "No license shall be required for the operation or exhibition of moving picture shows in any city, town, or village where the population does not exceed one thousand five hundred. In all other cities the license shall be twenty-five dollars per year. I I In 1937, Chapter 91, Laws of 1937 was passed by the legislature, entitled : "CHAPTER 91 "An Act Requiring Licenses for the Operation, Maintenance, Opening or Establishment of Moving Picture Theatres; Relating to Exemptions Erom Such License Requirement; Relating to the Collection and Disposition of License Fees, and Repealing All Acts and Parts of Acts in Conflict Herewith." This entire act, comprised of ten sections, was concerned solely with the licensing of motion picture theaters. The act made it unlawful to operate a moving picture theater without procuring a license from the state board of equalization. The licenses were to be issued quarterly, with the fee based upon 1 1 1 4 % of the gross proceeds from the sale of tickets in excess of $3000 per quarter. These fees were to be turned over to the state treasurer, and deposited in the general fund. This act was amended in 1953, by raising the quarterly exemption from $3000 to $20,000 per quarter. Chapter 74, Laws of 1953. In 1957, the legislature expressly repealed Chapter 91, Laws of 1937. Chapter 33, Laws of 1957. As to Carisch's first contention, we agree a motion-,picture theater is not a "theater" as contemplated by section 84-3201(2). That section was adopted in 1903, well before the existence of motion picture theaters. Further, the amendments to section 84-3201(2), as previously set forth, were not directed at motion picture theaters and in no way indicate an intent to include motion picture theaters within the meaning of "theater" as4, used therein. Additional evidence the legislature did not contemplate motion picture theaters to be included in section 84-3201(2) was the adoption of section 84-3205 in 1913, which specifically considered licensing the exhibition of moving picture shows, Therefore, we agree that i f Carisch i s liable for any license tax on its motion picture theaters, the authorization for such tax must exist by virtue of section 84-3205. See: 16 Official Opinions Montana Attorney General 17 (1935). Therefore, we next determine whether section 84-3205 is effective to date, This question is subdivided into two issues: 1) Whether Chapter 91, Laws of 1937, repealed section 84-3205 by implication? 2) I f so, whether section 84-3205 was revived by the repeal of Chapter 91, Laws of 1937? The f i r s t issue cannot be answered by simply reading the general repealing clause i n Section 10, Chapter 91, Laws of 1937. This clause adds nothing t o the repealing effect of the a c t , since, without the clause, a l l prior conflicting laws and parts of laws would neverthe- less be repealed by implication. State ex r e l . Charette v. District Court, 107 Mont. 489, 86 P.2d 750; State ex r e l . Wetzel v. Ellsworth, 143 Mont. 54, 387 P.2d 442; LA Sutherland Statutory Construction, 4th Ed., 523.08. What must be decided i s whether the two statutes are wholly inconsistent, incompatible, and not capable of being reconciled. Teamsters Local 45 v. Montana Liquor Control Bd., 155 Mont. 300, 471 P.2d 541, I f so, the e a r l i e r statute i s repealed. State v. Langan, 151 Mont. 558, 445 P.2d 565. The key t o solving such a dilemma is the legislative intent i n passing the subsequent act. W e have previously stated the intent to repeal a l l former laws on a subject is made apparent by the enactment of subsequent comprehensive legislation establishing elaborate inclu- sions and exclusions, and a l l a c t s and parts of acts, i n conflict therewith are repealed. State ex r e l , Dahl v. District Court, 134 Mont, 395, 333 P.2d 495; State ex r e l . Wetzel v. Ellsworth, supra; 1 A Sutherland Statutory Construction, 4th Ed., $23.13. A n exam- ination of the two acts i n question shows that such was the case with the enactment of Chapter 91, Laws of 1937. It i s stated i n 18 Official Opinions Montana Attorney General 208 (1940) : "Section 2439 and not Section 2434 i s the statute dealing with movie theater licenses. See opinion of the Attorney General, Vol. 16, p. 17. Chapter 91, Laws of 1937, i s in conflict with Section 2439 i n that it does not exempt a c i t y , town or village where the population does not exceed 1500, and further i n that it computes the license fee on a percentage of the gross proceeds of sale, while Section 2439 fixes a f l a t fee of $25.00 i n a l l c i t i e s over 1500 population. Furthermore, Chapter 91 provides for the collection of the license fees by the State Board of Equalization and by the l a t t e r paid to the State Treasurer, who shall deposit a l l fees into the general fund; whereas, under Section 2420 the fees collected under section 2439 are t o be paid to the county treasurer, 50% of which are to be retained by the county and the balance paid t o the State Treasurer, 45% going t o the general fund and 5% t o the bounty fund. "In view of these conflicts (1) i n the movie theaters t o be taxed; (2) i n the amount of the tax t o be paid; (3) i n the officers charged with collection; and (4) the use of the funds collected, it i s m y opinion that Section 2439 i s repealed by Chapter 91, Laws of 1937, which, i n Section 10, declares that a l l acts and parts of a c t s i n con£ l i c t therewith are repealed ." When speaking of Sections 2439 and 2434, the attorney general was referring t o the 1935 Code numbers of sections 84-3205 and 84-3201(2), R.C.M. 1947, respectively. While opinions of the attorney general, acquiesced i n by the legislature, are not binding upon t h i s Court, yet such interpreta- tion i s persuasive and w i l l be upheld i f not erroneous. State v. Schye, 130 Mont. 537, 305 P.2d 350. W e agree with the conclusion that section 84-3205 was repealed by implication for the reasons s e t forth i n the attorney general's opinion; for the reasons that any ambiguities involving tax laws are to be resolved i n favor of the taxpayer and against the state; and, that nothing is taxable unless clearly authorized by statute. Swartz v. Berg, 147 Mont. 178, 411 P.2d 736; Cherry Lane Farms v. Treasurer, Gallatin Co., 153 Mont. 240, 456 P.2d 296; Magnuson v. State Bd. of Equalization, 162 Mont. 393, 513 P.2d 1. Considering the second issue--whether section 84-3205 was revived by the repeal of Chapter 91, Laws of 1937, -- 1A Sutherland Statutory Construction, 4th Ed., 523.31 states: "Under the common law rules of interpretation, the repeal of a repealing statute operates t o revive the original enactment where the repeal of the repealing s t a t u t e i s accomplished by express provision without additional legislation upon the subject matter. However, where the repeal of the repealing statute i s achieved by specific provision or by implication with new additional legislation on the subject matter, the original legislation i s revived only t o the extent t o which it is consistent with the new legislation. "The majority of the jurisdictions i n the United States have enacted general interpretive provisions t o the effect that the repeal of a repealing s t a t u t e does not revive the original statute. Under these provisions where the repeal of the repealing statute i s effectuated by express provision without additional legislation upon the subject matter, the common law is revived. But where the repeal of a repealing s t a t u t e i s claimed by implication, and new additional legisla- tion on the subject matter is enacted, the common law i s revived only t o the extent that it is not inconsistent with the l a t e r legislation. * * *" Montana i s one of the jurisdictions which has enacted a nonrevival provision. Section 43-513, R.C.M. 1947, states: "No a c t or $art of an a c t , repealed by another a c t of the legislative assembly, i s revived by the repeal of the repealing a c t without express words reviving such repealed act or part of an act." * . *. a The legislature i n repealing Chapter 91, Laws of 1937, made no express revival of section 84-3205. Therefore, section 84-3205 was not revived and has no force and effect. Neither does the fact that section 84-3205 was carried forward into the RBvised Code of Montana, 1947, revive the statute having once been repealed by implication. State v. Zorn, 99 Mont. 63, 41 P.2d 513; State v . Holt, 121 Mont. 459, 194 P.2d 651. For these reasons, Carisch is not liable for any license tax on its motion picure theaters. This cause is reversed and remanded to the district court to enter an order accordingly. Chief Just ice

June 3, 1977

2c9e0e38-9b0d-4651-a855-db4068145a3f

MATTER OF REDCROW

N/A

13589

Montana

Montana Supreme Court

No. 13589 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 I N THE MATTER O F THE ADOPTION O F DARLENE RAE REDCROW Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: C h r i s t i a n , McCurdy, Ingraham & Wold, Polson, Montana Donald Peterson argued, Polson, Montana For Respondent : Richard P. Heinz argued, County Attorney, Polson, Montana French and Grainey, Ronan, Montana P h i l i p Grainey argued, Ronan, Montana Hood and Bradshaw, Missoula, Montana Randi M. Hood argued, Missoula, Montana Thomas Mahan, Helena, Montana Submitted: A p r i l 13, 1977 M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court. Two couples f i l e d competing p e t i t i o n s t o adopt Darlene Rae Redcrow, about four yeard o l d , and an e n r o l l e d member of t h e Confederated S a l i s h and Kootenai Tribe. The d i s t r i c t c o u r t of Lake County, Hon. E. Gardner Brownlee, d i s t r i c t judge, granted an adoption decree t o t h e Meyer couple and t h e Rhodes couple appeal. The c h i l d involved had previously been removed from t h e home of her n a t u r a l p a r e n t s because of neglect. She was placed i n t h e home of a p p e l l a n t s Rhodes f o r 2 3 months u n t i l November, 1975, when she was returned t o t h e home of her n a t u r a l parents. Six weeks later S t a t e and T r i b a l a u t h o r i t i e s again found it necessary t o remove t h e c h i l d from her p a r e n t a l home because of neglect. She was then placed i n t h e home of respondents Meyer. O n December 29, 1975, t h e Department of Social and Re- h a b i l i t a t i o n Services of t h e S t a t e of Montana (SRS) p e t i t i o n e d t h e d i s t r i c t c o u r t of Lake County t o have t h e c h i l d declared dependent and neglected and f o r temporary custody. O n February 27, 1976, a p p e l l a n t s f i l e d a p e t i t i o n f o r adoption with t h e w r i t t e n consent of t h e n a t u r a l parents. O n April 8 , 1976, re- spondents Meyer f i l e d t h i s p e t i t i o n f o r adoption without t h e consent of t h e n a t u r a l parents. O n A p r i l 1 4 , 1976, SRS amended its p e t i t i o n t o cover permanent custody with r i g h t of adoption r a t h e r than temporary custody. The t h r e e p e t i t i o n s were consolidated and set f o r hearing on May 12. The SRS and Meyer p e t i t i o n s were continued f o r hearing t o a l a t e r d a t e t o allow c l e a r i n g up of p o t e n t i a l j u r i s d i c t i o n a l d e f e c t s . The Rhodes p e t i t i o n was heard and taken under advise- ment pending hearings on t h e SRS and Meyer p e t i t i o n s and c l e a r i n g up any question of consent by t h e T r i b a l c o u r t . O n June 9 t h e SRS p e t i t i o n w a s heard a t t h e conclusion of which the district court declared the child dependent and neglected and placed adoptive custody in SRS. The Meyer petition was heard on July 12 and taken under advisement. On August 11 the district court found both the appel- lants Rhodes and respondents Meyer suitable parents for the adoption and granted the Meyer petition for adoption. Appel- lants Rhodes have appealed from this order. The single issue on appeal is whether the district court abused its discretion in delaying determination of the Rhodes petition until after the hearing on the SRS and Meyer petitions. Appellants argue that since their adoption petition was jurisdictionally perfected, ready for hearing and heard prior to the other petitions it should have been decided first and granted, citing In re Koger, 206 Ore. 307, 292 P.2d 791. We hold the entire matter was properly treated as before the court from beginning to end. See State ex rel. Habeck v. Dist. Ct., 157 Mont. 231, 484 P.2d 272. The district court was entirely correct in hearing all aspects of the case before making any decision on the competing petitions. The court cannot be compelled to fragment the case because of different filing dates and readiness for hearing of the competing petitions. The court cannot be forced to don blinders to other aspects of the case on the theory that the early bird should catch the worm or its legal equivalent "Between rights otherwise equal, the earliest is preferred." Section 49-117, R.C.M. 1947. The paramount consideration in deciding between the competing parties is what is in the best interests of the child. Adoption of Biery, 164 Mont. 353, 522 P.2d 1377. The district court's finding that both competing couples are suitable adoptive parents is not equivalent to a finding that each would equally promote the best interests of the child. We find no abuse of discretion of the district court's determination. The order of the district court is affirmed. Justice Justices

May 2, 1977

9a825862-7d43-4535-b3de-52c358be51b2

STEPHENS v HURLY

N/A

13402

Montana

Montana Supreme Court

No. 13402 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 GARY F. STEPHENS and NANCY L. STEPHENS, husband and wife, Plaintiffs and Counter-Defendants, DR. JOHN T. HURLY, as Trustee, and ROBERT HURLY, Defendants and Counter-Claimants, and Appellants Appea; from: District Court of the Eleventh Judicial District, Honorable J. M. Salansky, Judge presiding. Counsel of Record: For Appellants: Robert Hurly argued, Glasgow, Montana Murphy, Robinson, Heckathorn 6 Phillips, Kalispell, Montana For Respondents: Warden, Walterskirchen & Christiansen, Kalispell , Montana Gary Christiansen argued, Kalispell, Montana Submitted: March 23, 1977 Decided: y p ~ 2 0 I C J ~ Filed: AFR 2 0 1978 Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This case concerns a dispute over the location of the boundary separating two parcels of lake front property. Gary F. Stephens and Nancy L. Stephens (his wife) brought the action in the district court, Flathead County, seeking deter- mination that their survey correctly established the boundary line between their property and the adjoining property of appellants Hurly. Stephens also sought a decree quieting title to their property; removal of certain encroachments; reimbursement of the cost of their survey; compensatory and punitive damages; and permanently enjoining the Hurlys or their successors in interest from interfering with their prop- erty. Hurlys counterclaimed for quiet title. The case was tried before Hon. Robert S. Keller, dis- trict judge, sitting without a jury. Judgment was entered for the Stephens, quieting title and establishing the boundary as set forth in their survey. In addition, the court permanently enjoined Hurlys or their successors from interfering with the Stephens' property, ordered the encroachments removed, and awarded costs of the survey to the Stephens. From this judg- ment the Hurlys appeal. The two parcels of property in question were part of a larger tract originally owned by one George E. Barkley. This tract was located on the shore of Whitefish Lake in Government Lot 4 , Section 24, Township 31 North, Range 22 West M.P.M. On August 10, 1934, Barkley conveyed the Stephens property to their predecessors in interest. About a year later, Barkley conveyed the Hurly property to their predecessors in interest. The legal descriptions for each parcel have remained the same from the time of the initial Barkley conveyances to the present time. In 1959, one John Thumma sold the Hurlys a tract of land 160 feet wide bounded on the west by Whitefish Lake, on the north by what is now the Viking Motel property, bounded on the east by the Big Mountain highway, and bounded on the south by the Stephens property. The Hurly property was at the time of the sale, and ever since, has been bounded by the waters of Whitefish Lake on one side, and enclosed by fences on the remaining three sides. In 1973, Stephens purchased the parcel adjoining the Hurly property on the south, with the intent of constructing a residence thereon. Stephens staked out the location of the house on the ground. The house was custom designed by an architect for that particular parcel of land, taking into care- ful consideration the width of the lot. While staking out the residence, it became apparent that although the deed provided for 80 feet in width, there was not actually 80 feet between the Stephens' south boundary and the Hurly fence on the north. At that point Stephens contacted Dean Marquardt, a certified civil engineer and land surveyor, and requested a survey to determine the location of the common boundary line between the Stephens and Hurly tracts. Marquardt prepared the survey and staked the dimensions of the Stephens lot using the existing controlling corners and information from previous surveys of the tracts nearby. The original government survey notes which were compiled on the area in question in 1893 were not used by Marquardt. The Marquardt survey established the Hurly fence was in fact encroaching upon the northern portion of the Stephens' property. The encroachment is a pie-shaped strip running the entire length of the Stephens' lot from the lake shore to the Big Mountain highway. It is approximately 10 feet wide at the lake shore and tapers down to 2 feet at the highway. An 8' x 42' mobile home, water and sewer lines, and various other improvements are located upon this pie-shaped piece of property. Stephens notified Hurlys of the encroachment and attempt- ed to negotiate a resolution of the problem. They were totally unsuccessful; in fact the Stephens were advised by the Hurlys that the courts were their only alternative. Thereafter the complaint was filed on July 18, 1974. Three issues are presented for review: I. Is the Stephens' action barred because they were not in possession of the property within five years of the commence- ment of their action? 11. Are Hurlys entitled to a decree quieting title to the disputed tract by adverse possession? 111. Is the Marquardt survey correct? Issue I. As an affirmative defense, the Hurlys claim the Stephens are barred from commencing an action for quiet title by the provisions of sections 93-2504 and 93-2505, R.C.M. 1947, which provide: Section 93-2504. " No action for the recovery of real property or for the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within five years before the commence- ment of the action." Section 93-2505. "No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within five (5) years before the commencement of the act in respect to which such action is prosecuted or defense made." The record clearly shows that the Stephens and their predecessors were not in actual possession of the disputed property for the five years immediately prior to the commence- ment of this action. The record reflects this testimony at the trial: "Q. (to Mr. Stephens) Have you and your wife ever been on and had possession of the property which was enclosed by the fence and includes the trailer? A. We sure haven't." "Q. (to Mr. Hurly) Since you have been there, has anyone ever been in possession of the land north of your south fence? A. No one. "Q. Other than yourself and your family? A. NO one else." The quoted statutes both use the words "seized or possessed of the property in question within five (5) years before the commencement of the action." This language is clearly in the alternative--"seized - or possessed." Thus seisin alone by the Stephens meets the statutory requirements. In Hanley v. Stewart, 155 Pa.Super. 535, 39 A.2d 323, 326, the court said: " * * * there is substantial competent authority for the position that 'seized', used by itself, commonly refers to a possession in fee simple." The court in Altschul v. O'Neill, 35 Or. 202, 58 P. 95, 96, said : "'The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is co-extensive with the right, and continues till he is ousted thereof by an actual adverse possession.'" A general discussion of the concept of "seisin" is found in 63 Am Jur 2d, Property S40, p. 324: "By the ancient law of England, the title, that is, full and complete dominion of land, could be conveyed only by the solemn act of livery of seisin, and no deed or charter was necessary. Deeds and charters came into use at a later period. At first they were held not to convey the estate itself but only to evidence, the nature of the conveyance; gradually, however, the rule of actual seisin or seisin in deed came to be regarded as the equivalent of livery of seisin, and it has long since been the rule that livery of seisin is not necessary to perfect a fee simple title to land. Seisin in a legal sense means possession of land coupled with the right to possess it and a freehold estate therein; it is practically the same thing as ownership. The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is co- extensive with his right, and continues until he is ousted therefrom by an actual adverse possession. Actual occupancy is not essential to a lawful seisin, although it is to a tortious or unlawful seisin. " * * * When a man is once seised of land, his seisin is presumed to continue until a disseisin is proved." (Emphasis added.) This quotation makes it clear the Stephens and their predecessors in interest were seized of the property in question. There is no contention that the Stephens' title is not complete. The property was conveyed to them as defined by the legal descrip- tion. The Marquardt survey, using this description, established the Hurly fence is in fact encroaching upon the Stephens' prop- erty. We hold the Stephens and their predecessors were seized of the property in question and therefore entitled to bring this action to quiet title. We also find the provisions of section 93-2507, R.C.M. 1947, are applicable. This section states: "In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for five (5) years before the commencement of the action." (Emphasis added.) The Hurlys have the burden of overcoming this presumption by proof to the contrary. See: Warren v. Warren, 127 Mont. 259, 261 P.2d 364; Norwegian Lutheran Church of America v. Armstrong, 112 Mont. 528, 118 P.2d 380. Issue 11. The trial court held the elements of adverse possession were not proved by the Hurlys. We agree. The statutory requirements to establish adverse possession appear in section 93-2513, R.C.M. 1947, which states: "In no case shall adverse possession be con- sidered established under the provisions of any section or sections of this code unless it shall be shown that the land has been occupied and claimed for a period of five (5) years continuously, and the party or persons, their predecessors and grantors, have, during such period, paid all the taxes, state, county, or municipal, which have been legally levied and assessed upon said lands." The determinative question in regard to this issue is whether the Hurlys paid the taxes on the disputed property for a period of five years. The Stephens called Alice Logan, a clerk in the assessor's office of Flathead County, as a witness. She testified as to the means by which the taxable valuation is applied to a parcel of property: "Q. Mr. Proud indicated that when you apply the valuation which he puts together, to the real prop- erty involved, that the real property is what is set forth in the deed, in connection with any given tract of land, is that correct? A. That is correct. "Q. Do you in the Assessor's office pay any atten- tion at all as to what may be between two fences, for example? A. No Sir. We just use the descrip- tion that is on the transfer as it comes to us or on the cards that are printed. "Q. On the deeds? A. Uh-huh." The testimony is clear that the Stephens' deed defined their parcel by means of a legal description of the boundary lines. Therefore, the Stephens, not the Hurlys, paid the taxes on the disputed piece of property. The assessment was made on the basis of the legal description in the deed rather than an on- site measurement of the area enclosed within the Hurly fence. The Hurlys further argue that since they paid the person- al property tax on the mobile home located on the disputed prop- erty, they must have paid the tax on the property upon which it rested. Such is not the case. Jim Proud, who is the Supervisor for the Appraisal Board for the State Department of Revenue, Flathead County, testified: "Q. So if we are trying to determine whether or not A, who has his trailer encroaching on B's property has now been appraised by you, if he has been in fact been assessed for this portion of B's property in addition to his own by virtue of the fact that he is sitting there now, that is what the guts of this case is all about. You are not trying to make that determination in any way. The most value you are adding to A is the value of that trailer and not the ground upon which it sits? A. That is right. "Q And you have already made the determination of the value of the ground upon which it sits, based on a legal description from the tract index, and it is based on the deed description, isn't it? A. That is right. "Q. So even though this trailer of A is sitting on B's property, when you add that as an improve- ment to A's property, believing it to be A's property, the most that you did was add the value, the market value of the trailer, to the deed des- cription of A's property? A. If we had placed it in the incorrect lot." The district court was correct in its ruling that the Hurlys had not paid the taxes on the disputed strip of property, therefore the elements of adverse possession had not been estab- lished. The payment of taxes to prove title by adverse possession is a positive statutory requirement. Lowery v. Garfield County, 122 Mont. 571, 208 P.2d 478; Brannon v. Lewis and Clark County, 143 Mont. 200, 387 P.2d 706; Smith v. Whitney, 105 Mont. 523, 74 P.2d 450. Where the evidence shows that Hurlys paid taxes on the basis of the land description in the deed which does not include the strip of property in dispute, in absence of an agree- ment extending the boundary to include this strip, such payment does not constitute the payment of taxes on the disputed strip. Blayden v. Morris, 37 Idaho 37, 214 P. 1039; Johnson v. Buck, 7 C.A.2d 197, 46 P.2d 771. Issue 111. The Hurlys further argue the Marquardt survey was incorrect and the district court erred in establishing the boundary line as set forth in the survey. Hurlys contend the original Government Land Office (GLO) survey was not used as the basis or point or origin for the Marquardt survey and, further, the GLO survey and the Marquardt survey are inconsistent. We find no merit in either contention. The location of corners and lines established by the government survey is conclusive and the true corner of a government subdivision of a section of land is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. Vaught v. McClymond, 116 Mont. 542, 155 P.2d 612. Marquardt determined that the sole remaining official GLO monument which controls the property in question is located at the southeast corner of Section 24. The GLO survey notes show that monuments were originally placed at the mid-section line of the south boundary of Section 24 and at the lake shore of Whitefish Lake. Marquardt testified that the former monument is now covered by the Big Mountain highway and the latter no longer can be located. Marquardt used as the basis for his survey two corners located upon the south line of Section 24 which had been estab- lished by previous surveys in the area. Corner records had been filed on these corners and the testimony is clear that the sur- veys which located these corners were based on and consistent with the original GLO survey. Hurlys contend that since the surveyor did not go back to the official GLO monument at the southeast corner of Section 24, the survey is not based on the GLO survey as required by law. But the record is clear that the Marquardt survey is based upon and consistent with the GLO survey and that is all that is required. Hurlys further argue the GLO survey and the Marquardt survey are inconsistent and Marquardt chose to ignore the GLO survey. This is not borne out by the transcript: "Q. (by counsel for Hurlys) In other words, you disregarded that for that reason, that you felt they were probably wrong with their bearings? A. I didn't disregard it. I chose to accept the controlling elements of the survey. Now, in a GLO survey the controlling elements are the original corners, which were set, or the locations for those corners. Now, they control over bearing and distance. And so in retracing the survey, you use the mon- uments, or if you don't have the original monu- ments, you use what is the best evidence as to the location of those corners. And I consider the best evidence of the location of those two corners to be the monumented corners which are of record and have been used by other surveyors for at least 21 years, as far as I know." There was sufficient evidence before the district court to support its finding that the survey had been properly made and the lines properly located. In this regard the law in this jurisdiction was aptly stated in Myrick v. Peet, 56 Mont. 13, 22, 180 P. 574, where the court said: " * * * The court below, short of being actually upon the ground, following step by step the witness in examining the monuments which the surveyors testi- fied bore the official stamp of identification, was in a peculiarly advantageous position to get the psychological effect of the testimony given by the witness. They were all fresh from the locus in quo, and gave the court first impressions by pointing o x upon the maps the objects by which the definite location of the monuments could be determined. Be- fore the judgment of the court below reached by such means, and presumptively correct, can be impeached, it must be made clearly to appear that some fact properly for the consideration of the jury was arbi- trarily determined by the court * * *." The judgment of the district court is affirmed. Justice We concur \ 7 / i . Justices -, -

April 19, 1977

febe69f8-3f48-4aea-bdfe-a468392c4e43

GALLUP v SUPERINTENDENT OF PUBLIC

N/A

13459

Montana

Montana Supreme Court

N o . 13459 I N THE SUPREME COURT O F THE STATE O F MONTANA 1977 GRANT R. GALLUP, P l a i n t i f f and Appellant, SUPERINTENDENT O F PUBLIC INSTRUCTION of t h e S t a t e of Montana, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: A s t l e and A s t l e , K a l i s p e l l , Montana David A s t l e argued, K a l i s p e l l , Montana For Respondent : W. Corbin Howard, Helena, Montana For Amicus Curiae: Cannon and G i l l e s p i e , Helena, Montana Richard G i l l e s p i e argued, Helena, Montana Submitted: April 18, 1 9 7 7 Decided: MAY - 4 l g n Filed: MAY . i 9 1 7 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from an order of the district court, Lewis and Clark County, granting defendant's motion to dismiss with prejudice. Several issues are presented by plaintiff Grant R . Gallup, but we find the controlling issue to be whether his rights and remedies in this matter were foreclosed by his failure to timely pursue proper legal remedies in the district court from a decision of the state superintendent affirming the termination of his tenure. Gallup in 1973 was a tenured teacher of School District No. 9, Glacier County, Montana, having taught there for 9 years. In September 1973, the board of trustees of the district dismissed him pursuant to section 75-6107, R.C.M. 1947, which provides for dismissal of a teacher during the contract term. Gallup appealed the decision to the superintendent of schools o i Glacier County, who, following a hearing, reversed the board. The board of trustees appealed that decision to the state superin- tendent who upheld the decision of the county superintendent. That decision was appealed to the district court which reversed the deci- sion of the state superintendent. Gallup appealed to this Court and in a decision dated December 21, 1976, the Court reversed the district court's judgment and affirmed that of the state superin- tendent of public instruction reinstating Gallup for the remainder or his 1973-74 contract. See: Board of Trustees of School District No. 9, Glacier County v. Superintendent of Public Instruction, oL the State of Montana and Grant R. Gallup, Mont . 9 557 P.2d 1048, 33 St.Rep. 1221. : h i Ylarch 13, i914, when Gallup's case was s t i l l before the Glacier County superintendent on the dismissal of September 1973, the board of trustees met f o r the purpose of renewing teachersr contracts f o r the coming 1974-75 school year. The board voted t o terminate Gallup's tenured service a t the end of the 1973-74 school year pursuant t o section 75-6103, R.C.M. 1947. W e note t h a t i n September 1973, the board terminated all up's contract under section 75-6107, R.C.M. 1947. The March 13, 1974, action taken by the board was under a d i f f e r e n t s t a t u t e and during the pendency of the f i r s t appeal. A t t h i s point i n the case the board chose t o terminate any future employment with Gallup, regardless of the outcome of the f i r s t case. This decision was communicated t o Gallup by l e t t e r dated March 19, 1974. O n March 25, 1974, Gallup demanded reasons f o r h i s termination and the board gave eight reasons. A t a hearing before the board on April 26, 1974, Gallup appeared with counsel but refused t o t e s t i f y . After he l e f t , the board heard evidence and terminated h i s services as a tenured teacher f o r the school year 1974-75. Thereafter Gallup appealed the board's decision t o the Glacier County superintendent of schools. Both p a r t i e s appeared a t the hearing and stipulated t h a t two questions should be con- sidered and t h a t the t r a n s c r i p t of the hearing before the board of t r u s t e e s would provide the relevant background. The county superintendent found the charges unsupported and ordered Gallup reinstated. The board appealed t o the s t a t e superintendent, who reversed the county superintendent. The decision of the s t a t e superintendent was dated November 14, 1975. N o appeal was made t o the d i s t r i c t court u n t i l May 1 7 , 1976. Section 75-5709, R.C.M. 1947, a s amended by Sec. 1, Ch.300, L.1974, i s controlling. It provides i n pertinent p a r t : ' x The decision of the superintendent of public instruction shall be final, subject to the proper Legal remedies in the state courts. Such proceedings shall be commenced no later than sixty ( 6 0 ) days after . - the date of the decision of the superintendent of public instruction." (Emphasis povided. ) Lzr a recent case, Schweigert v. Board of Trus tees, 163 Mont. 29, 515 P.2d 85, this Court held that where a tenured teacher did not follow statutory procedure in making a written request within ten days for a statement of reasons and a hearing, her rights under the statute expired and she was foreclosed from thereafter bringing suit challenging the decision not to renew her contract. In the instant case more than six months passed and Gallup cannot at this late date breathe life into his complaint. Having failed to pursue his statutory administrative remedies within the time allowed by law, Gallup's right to contest the termination of his employment as a tenured teacher was at an end. The statutory time limitations are mandatory to provide for prompt resolution of teacher employment controversies in the public interest, as well as the respective interests of the principals involved. The judgment of the district court is affirmed. We Concur: I u J - 6 * - Chief Justice

May 4, 1977

4d98ba59-eb1c-4339-a1e7-e738edf56307

JOHNSON v JOHNSON

N/A

13343

Montana

Montana Supreme Court

No. 13343 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 EDWIN G. JOHNSON and ALICE JOHNSON, husband and wife, Plaintiffs and Appellants, WILLIAM E. JOHNSON and RUTH N. JOHNSON, husband and wife, Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellants: I Ayers and Alterowitz, Red Lodge, Montana Arthur W. Ayers argued, Red Lodge, Montana For Respondents: Robert F. Conwell, Red Lodge, Montana Scribner and Huss, Helena, Montana Lawrence D. Huss argued and Michael Maloney appeared, Helena, Montana Submitted: January 13, 1977 Decided : MAR 2 1977 \r;BT( 1. ' 5 1-1 Filed. Mr. Justice Frank I. Haswell delivered the Opinion of the Court. The district court of Carbon County, Hon. C. B. Sande, district judge, sitting without a jury, entered judgment decreeing a par01 partition of property between two brothers. Plaintiff brother Edwin, who sought a statutory partition, appeals. The property in question, consisting of eight govern- ment lots, is located about 2 1/2 miles southwest of Roberts in Carbon County, Montana. The father of the parties had acquired the farmlands from two separate sources during his lifetime. Prior to his death he deeded all the land to his two sons Edwin and William, the parties in the present litigation, as tenants in common. The father died in August, 1957. Thereafter defendant William occupied and used lots 6, 14, 15 and 16 while Edwin occupied and used lots 1, 4 and 5. A controversy exists concern- ing lot 7. William claims that in 1957 the fence running through lot 7 was taken down and moved by him to what he thought was the boundary line between lots 4 and 7 and that he has occupied and used all of lot 7 exclusively since then. Edwin claims that since 1957 when the fence was moved, he has used lot 7 as pasturage whenever he wanted to without securing William's permission. The fence was moved again in 1972 because, according to William, Edwin did not think the prior location was fair to him. Aside from the controversy over lot 7, Edwin and William have each resided and occupied the respective parcel of land that each was farming. Each owned his own livestock. Each pastured, tilled, irrigated, fenced and fertilized his respective parcel. Each paid the taxes on his own parcel. William paid the taxes on lot 7. Neither accounted to the other for the proceeds from his respective parcel. For an indefinite period of time, the two brothers shared the use of some of the farm equipment. William had made s u b s t a n t i a l improvements on h i s residence and land. The water r i g h t s , both decreed and c o n t r a c t u a l , were divided with each brother paying h i s share of t h e charges. The mineral r i g h t s were held i n common and t h e proceeds from t h e leases divided. I n 1972 Edwin f i l e d t h e p r e s e n t a c t i o n seeking a s t a t u - t o r y p a r t i t i o n of t h e land. William was named a s defendant and t h e i r r e s p e c t i v e wives were joined a s p a r t i e s f o r dower purposes. William f i l e d an answer and counterclaim r e s i s t i n g s t a t u t o r y p a r t i t i o n and claiming a p a r o l p a r t i t i o n of t h e lands i n 1957. Following t r i a l , Judge Sande entered f i n d i n g s of f a c t and conclusions of law t o t h e e f f e c t t h a t t h e brothers had made a f a i r and e q u i t a b l e d i v i s i o n of t h e property by p a r o l p a r t i t i o n i n 1957, excepting mineral i n t e r e s t s , and t h a t Edwin had acquired l o t s 1, 4 and 5 thereunder and William had acquired l o t s 6, 7, 1 4 , 15 and 16. Judgment was entered thereon i n which Edwin's s u i t f o r s t a t u t o r y p a r t i t i o n was dismissed. Edwin appeals, assigning two i s s u e s f o r review: (1) Sufficiency of t h e evidence t o support t h e judgment of p a r o l p a r t i t i o n . (2) Whether t h e wives of t h e p a r t i e s must agree t o a parol p a r t i t i o n . Defendant William has i n j e c t e d an a d d i t i o n a l i s s u e f o r review, v i z . whether t h e s t a t u t e of frauds b a r s an executed o r a l p a r t i t i o n of t h e property. W e f i r s t d i r e c t our a t t e n t i o n t o t h e a d d i t i o n a l i s s u e of t h e s t a t u t e of frauds. W e hold t h i s is a non-issue i n t h i s case. The s t a t u t e of frauds was n o t plead a s an a f f i r m a t i v e defense t o William's claim of parol p a r t i t i o n a s required by Rule 8 ( c ) , M.R.Civ.P. A s t h i s i s s u e was not r a i s e d i n t h e d i s t r i c t c o u r t , it w i l l not be considered f o r t h e f i r s t t i m e on appeal. Massa v. SRS , Mont . P.2d , 34 St.Rep. 72, decided February - I - 22, 1977; Pickett v . Kyger, 151 Mont. 87, 439 P.2d 57; Close v. Ruegsegger, 143 Mont. 32, 386 P.2d 739. Proceeding to the question of sufficiency of the evidence to support a judgment of parol partition, we note the pertinent findings of fact of the district court expressed as follows : "That during the year 1957 each party hereto assumed possession of and exercised exclusive use and control over a separate, specific parcel of the whole property, paid taxes thereon and has ever since continued to do so, except for mineral interests which they continued to hold and lease as tenants in common." The function of this Court on appeal is to determine whether there is substantial evidence to support this finding. Spencer v . Robertson, 151 Mont. 507, 445 P.2d 48. The credi- bility of the witnesses and the weight to be given their testi- mony is a matter for the district court's determination in a nonjury case. Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 507 P.2d 523; Eliason v. Eliason, 151 Mont. 409, 443 P.2d 884. In determining whether the evidence supports the findings and judgment, the evidence must be viewed in the light most favorable to the prevailing party in the district court. Strong v. Williams, 154 Mont. 65, 460 P.2d 90. Applying these principles we find that the evidence, though conflicting in some respects, is sufficient to support the judgment of parol partition. There are four separate ele- ments of proof substantiating the fact of parol partition: (1) The actual physical partition between lots 4 and 7, (2) the separate improvements by William on his parcel without contri- bution or assistance by Edwin, (3) the separate operation by each brother of his respective parcel with no accounting to the other of the proceeds, and (4) the payment of taxes by each brother on his respective parcel. Additionally there was at least a tacit acquiescence by Edwin in all this and his accep- tance of the benefits of the division. Edwin points out that there was no partition of the mineral interests in the land in support of his contention that there was no parol partition. This is of no consequence, how- ever, as land may be partitioned without partitioning some interest therein such as mineral rights. 68 C.J.S. Partition, Sec. 4, p. 10; Updike v. Smith, 378 Ill. 600, 39 N.E.2d 325. The final issue is whether the wives of the brothers must agree to the parol partition to make it effective. The evidence discloses that Edwin's wife denies that she agreed to any parol partition and that William's wife could not remember being a party to any such agreement. In 1957 when the parol partition occurred, each wife had a dower interest in her husband's land. This dower interest was inchoate and would not ripen into a vested or accrued right until the death of her husband. Section 22-101, R.C.M. 1947. Until that time, her dower interest was but an expectancy which might or might not develop into an interest in the land itself. Thus her participation or agreement in the parol participation was not required. Had she survived her husband and thus acquired an interest in the land itself, the binding effect of the parol partition on her might be subject to question but that is not this case. Both parties and their wives were living on July 1, 1975, the effective date of the Uniform Probate Code abolishing dower rights in Montana. Section 91A-2-112, R.C.M. 1947. By this enactment, the legislature removed this expectation of a vested right in the land. Stovall v. Dept. of Revenue, 165 Mont. 180, 527 P.2d 62. The district court's further finding that the parol partition was a fair and equitable division of the property was likewise supported by substantial evidence. The assessed value of Edwin's parcel of property was $4,798 and William's was $4,595, while the respective acreages were 120.45 for Edwin and 138.76 for William. The judgment of the district court is affirmed. Justice J stices \-- Y

March 2, 1977

9bbf055a-d9b4-4193-85b4-f61a27a2528b

CHOUTEAU COUNTY v GROSSMAN

N/A

13575

Montana

Montana Supreme Court

No. 13575 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 CHOUTEAU COUNTY, MONTANA, P l a i n t i f f and Respondent, HENRY I. GROSSMAN, BRUCE G. BRAMLETTE, RICHARD M. KURTH, JOSEPH C. TADEVICK, e t a l . , and a l l p e t i t i o n e r s whose names appear on t h e P e t i t i o n f o r a County Resolution f i l e d on t h e 25th day of May, i n t h e year 1976. Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable Truman G. Bradford, Judge presiding. Counsel of Record: For Appellants: Donald A. LaBar argued, Great F a l l s , Montana Robert K. Strong argued, Great F a l l s , Montana Church, H a r r i s , Johnson & W i l l i a m s , Great F a l l s , Montana For Respondent : A. Evon Anderson argued, F o r t Benton, Montana Submitted: March 30, 1977 Decided- MAY 3 1977 Mr. Justice Frank I . Haswell delivered the Opinion of the Court. The Board of Commissioners of Chouteau County (Board) brought this action pursuant to section 37-301(2), R . C . M . 1947, to determine whether a resolution proposed for voter referendum is valid and constitutional. The referendum proposes that no funds of any nature be used for paving 3 1/2 miles of county road for which the county had called for bids, and that no bids be accepted. The district court, Hon. Truman Bradford, district judge presiding, ruled the proposed resolution invalid. Defendant petitioners appeal. The issue is whether a decision of the Board of County Commissioners to call for bids and expend funds to pave or oil an existing segment of county road is a legislative function and thus subject to the powers of initiative and referendum reserved to the people, or whether it is an administrative function not subject to referendum. In late April 1976, the Chouteau County Board of Commissioners published in the Fort Benton, Montana, "River Press" a call for bids for a new paving project. The Board planned to use county funds to pave 3.5 miles of road south of Fort Benton in Chouteau County. A number of citizens of Chouteau County filed suit to prevent this paving project from being undertaken. On May 13, 1976, dis- trict judge Hon. R. J. Nelson, signed a temporary restraining order restraining the county from beginning the paving project by accepting bids, and ordered the county to appear and show cause why the order should not be made permanent. Before the date s e t for hearing, more than fifteen percent of the citizens and qualified electors of the county had properly signed petitions that the Board pass t h i s resolution which i s i n controversy here: "BE I T R E S O L V E D by the Board of County Commissioners of Chouteau County, Montana that: N o funds of any nature available t o Chouteau County from any source whatsoever be used for paving or oiling that segment of road which i s the subject of that certain c a l l for bids dated April 26, 1976, and signed by James F. White, Jr., Chairman and which c a l l for bids generally describes the road as approximately 3 112 miles of road a t a starting point 5 miles southwest of Fort Benton on the Highwood Road; that no bids from any person shall be accepted by the Board for any such paving or oiling; and, that a l l Resolutions of the Board of Commissioners of Chouteau County i f any t o the contrary are hereby repealed." Further proceedings i n the action for injunction were declared moot when the petitions were received. The clerk of Chouteau County certified t o the Board that the requisite number of signers had signed the petition. The Board then f i l e d t h i s s u i t for declaratory judgment alleging the resolution, i f adopted "* * * would be invalid i n that it i s unconstitutionally vague and The powers of i n i t i a t i v e and referendum are reserved to the people i n the 1972 Montana Constitution. A r t . V , Section 1, provides : "The legislative power i s vested i n a legislature consisting of a senate and a house of representatives. The people reserve t o themselves the powers of i n i t i a t i v e and referendum." (Emphasis added.) A r t . 1 1 1 , Section 4, provides for the enactment of law by i n i t i a t i v e by the people. As appellants s t a t e , what was sought here was a referendum t o either approve o r overrule the prior decision of the Board. State ex r e l . Hay v. Alderson, 49 Mont. 387,406, 142 P. 210. - 3 - A r t . 111, Section 5, provides i n pertinent p a r t : "(1) The people may approve o r r e j e c t by referendum any a c t of the l e g i s l a t u r e except an appropriation of money. A referendum s h a l l be held e i t h e r upon order by the l e g i s l a t u r e o r upon p e t i t i o n signed by a t l e a s t f i v e percent * * *." A r t . X I , Section 8, s t a t e s : "The l e g i s l a t u r e s h a l l extend the i n i t i a t i v e and referendum powers reserved t o the people by the constitution t o the qualified e l e c t o r s of each l o c a l government unit." The l e g i s l a t u r e enacted Chapter 3 , T i t l e 37, R.C.M. 1947, t o carry out t h a t constitutional mandate. Section 37-301(1)(2),, K.C.M. 1947, i n pertinent p a r t provides: "(1) Resolutions may be proposed by the l e g a l voters of any county i n t h i s s t a t e , i n the manner provided i n t h i s a c t . Fifteen per cent (15%) of the l e g a l voters of any county may propose t o the board of county commis- sioners a resolution on a subject within the l e g i s l a t i v e j u r i s d i c t i o n and powers of such county commissioners, o r a resolution amending o r repealing any p r i o r resolution o r resolutions .* * 7kf' (Emphasis added. ) The board then may enact the resolution o r submit it t o the people. Before submitting it, the board may challenge it i n court, a s was done here: "(2) fc * * t o determine whether the p e t i t i o n and ordinance a r e regular i n form, and whether the ordinance so proposed would be valid and constitutional.* * *I1 There i s no objection a s t o the form of the p e t i t i o n f o r a referendum o r the number of signers. The challenge here i s t o its v a l i d i t y . C i t i e s and towns of Montana have f o r many years been subject t o i n i t i a t i v e and referendum. Section 11-1104, et.seq., R.C.M. Both p a r t i e s agree t h a t i n i t i a t i v e and referendum extend only t o l e g i s l a t i v e action and not t o administrative a c t s , c i t i n g City of Billings v. Nore, 148 Mont. 96, 417 P.2d 458, and cases c i t e d therein. The issue then i s whether the proposed resolution addresses itself to a legislative or administrative function. The district court in its Opinion and Order resolved the issue in this manner: "The Montana Supreme Court, in 1966, reaffirmed the rule that 'initiative does not lie concerning matters administrative in nature. ' (City of Billings v. More, 1 4 8 Mont. 96, 104; citing Carlson v. City of Helena, 39 Mont. 82 and Allen v. City of Butte, 55 Mont. 205) The Court, in that same case, acknow- ledged that differentiating between legislative and administrative actions is difficult but accepted as a reasonable test a determination of whether the act was one creating a new law (legislative) or executing an already existing law (administrative). "The Montana legislative assembly has placed the 1 responsibility to Lay out, maintain, control, and manage county roads, ferries, and bridges within the county' with the board of county commissioners. (R.C.M., 1947, Section 1 6 - 1 0 0 4 ( 1 ) ) . The petition for county resolution that is the subject of this suit seeks to make use of the initiative procedure to govern the activities of the commissioners concerning the paving of an existing segment of road. "The Board of County Commissioners of Chouteau County, in publishing its call for bids for paving a section of county road, was attempting to fulfill its' duty and responsibility to maintain and manage county roads; it was performing an administrative act by the execution of an already existing law." We agree with the conclusion of the district court that the resolution seeks to govern administrative acts of the Board which are therefore not subject to referendum. The resolution in question here is in express terms of whether funds should be expended and bids accepted for the project. It would provide if enacted: "No funds of any nature * * * be used for paving or oiling that segment of road * * * that no bids from any person shall be accepted * * * and, that all Resolu- tions of the Board of Commissioners of Chouteau County if any to the contrary are hereby repealed." It expressly addresses itself to the expenditure of funds for the carrying out of the project. The acceptance of bids and use of funds for paving are administrative functions. The resolution does not concern the more fundamental decision of whether the county should pave the road. For this reason appellants' argument that the decision to pave or not to pave the segment of county road is a legislative function and therefore subject to initiative and referendum is not in point. We accept the principle that initiative and referendum provisions of the Constitution should be broadly construed to maintain the maximum power in the people, and that statutes in aid of these reserved powers "'should be liberally construed, and should not be interfered with by the courts, except upon a clear showing that the law is being violated."' State ex rel. Freeze v. Taylor, 90 Mont. 439, 447, 4 P.2d 479. 54 Cal.L.Rev. 1717, 1724. We are not persuaded by the so-called counter-principle that "'if essential governmental functions would be seriously impaired by the [initiative or] referendum process, the courts, in construing the applicable constitutional and statutory pro- visions, will assume that no such result was intended [by the d r a f t e r s ] ! ' ' 5 4 Cal. L . Rev. 1717, 1724. In City of Billings v. Nore, 148 Mont. 96, 417 P.2d 458, cited by the district court, the electors approved a bond issue for storm sewer system. At issue was the method of assessment to fund payment of the bonds. This Court held that since the ordinance for assessment substantially complied with the issue voted upon, it was administrative in nature and not subject to initiative. Two cases cited in City of Billings are not in point. Here, a special improvement district is not in question nor a special assessment. It is contemplated that(genera1 funds of the county are to be used. Allen v, City of Butte, 55 Mont. 205, 208, 175 P. 595, was an action to prevent the sale of property for delinquent assessments on a special improvement district. In Allen the Court stated: "The initiative and referendum apply only to matters of general legislation, in which all the quali- fied electors of the city are interested, and not to matters of purely local concern, such as the creation of a special improvement district, in which only the inhabitants or property owners are interested." Carlson v. City of Helena, 39 Mont. 82, 113, 102 P, 39, was a challenge to a proposed issuance of bonds for procuring a city water system and extending the sewer. An election on the bond issue had been held. On a relatively minor issue in the case, this Court found the initiative and referendum provisions of the code were not applicable and stated: "* * * They in terms apply, and were evidently intknded to apply only, to matters of general legislation in which all electors without distinc- tion may take an active interest. The question whether the council should have authority to issue bonds could be submitted to the taxpayers only." In summary, we hold that this proposed resolution to prevent the use of funds and acceptance of bids concerns an administrative function. Administrative acts are not subject to referendum. Therefore, the proposed referendum is invalid. Judgment of the district court is affirmed. W e concur: - - -3 5 :7JJ-& \ d , i Chief Justy,ce 4

May 3, 1977

1937c462-ef92-47fa-a6dc-dff1141f5281

MATTER OF GEARY

N/A

13453

Montana

Montana Supreme Court

No. 13453 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF ZIP GEARY, A Youth Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: K. Robert Foster argued, Lewistown, Montana For Respondent: Hon. Michael Greely, Attorney General, Helena, Montana J. Mayo Ashley argued, Assistant Attorney General, Helena, Montana William A. Spoja, County Attorney, Lewistown, Montana Timothy J. O'Kare argued, Deputy County Attorney, Lewistown, llontana Submitted: March 14, 1977 Decided: R P ~ - 6 1977 Filed: TflR .s 1 9 n Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This appeal arises from a dispositional hearing in the youth court, tenth judicial district, County of Fergus, conducted without a record. The facts leading up to the dispositional hearing were as follows: Prior to September 22, 1975, Zip Geary was apprehended with another youth while they were removing the lug nuts from an automobile on a Lewistown car lot. As a result of this offense Zip Geary and his father, appellant, entered into an informal consent adjustment, without petition, placing Zip Geary on probation with the youth division for one year. On February 6, 1976, Zip and another youth committed felony-theft of an automobile and felony-burglary of the Lewis- town Eagles Club. On February 13, 1976, the deputy county attorney for Fergus County filed a petition in youth court charging Zip Geary with theft and burglary. On February 25, 1976, a hearing was held, wherein Zip admitted the allegations in the petition. A social study was prepared and submitted to the court on May 17, 1976. A dispositional hearing was held without a record on June 7, 1976, wherein the court ordered that Zip be placed in a foster home. The father appeals from that order and raises two issues for our review. 1) Whether the absence of a stenographic record requires this case to be reversed and remanded to the district court? 2) Whether the district court must make a finding of parental unfitness before the youth is placed in the custody of a foster home? A reading of the applicable statutes is determinative of the first issue. It is clear that there is a statutory mandate to record the dispositional hearing verbatim, and the absence of such requires this case to be reversed and remanded to the youth court. Section 10-1221(4), R.C.M. 1947, states: "The dispositional hearing shall be conducted in the manner set forth in section 10-1220, subsections (3), (4), and (5) . The court shall hear all evidence relevant to a proper disposi- tion of the case best serving the interests of the youth and the public. Such evidence shall include, but not be limited to, the social summary and predisposition report provided for in subsection (2) of this section." (Emphasis supplied.) Section 10-1220(3) in turn states: "An adjudicatory hearing shall be recorded verbatim by whatever means the court deems appropriate." (Emphasis supplied.) Furthermore, this statutory requirement of a stenographic record is neither a constitutional nor a statutory right of any party~capable of being waived as contended by the State. Nor is the youth court given discretion to waive this statutory require- ment. This is a legislative requirement imposed upon the youth court to insure an orderly judicial process and preserve the integrity of that process. If the legislature had intended that a stenographic record need not be kept in each youth court disposition hearing, the following language of Section 24(c), Uniform Juvenile Court Act (1968), could have been used: "If requested by a party or ordered by the court the proceedings shall be recorded by stenographic notes or by electronic, mechan- ical, or other appropriate means. If not so recorded full minutes of the proceedings shall be kept by the court. " This requirement of a stenographic record is complimen- tary to the right of appeal in all youth court actions given by section 10-1225 (1) , as follows: "Any party other than the state may appeal from a judgment of the court to the supreme court in the manner provided by law. The appeal shall be heard by the supreme court upon the files, records, and transcript of the evidence of the juvenile court." (Emphasis supplied.) Without a transcript, this Court is placed in the position of attempting to reconstruct a record on appeal. Such a task being often impossible and unnecessary, the right to appeal becomes illusory, a right without substance. This discussion is applicable to the second issue. The absence in the record of any findings or reasoning for the youth court's disposition order would require this Court to speculate on the reasons for the order. We are cognizant of the fact that section 10-1221, R.C.M. 1947, places no specific duty upon the youth court to render its findings on all issues as required under section 10-1220, R.C.M. 1947. However, the parties do have a right to appeal from dis- positional hearings, as well as from adjudication hearings. Sec- tion 10-1225, R.C.M. 1947. Therefore, specific findings shall be made by the youth court in all disposition cases which will set forth the basis of its order. As stated in the Report of the Advisory Committee to the Administrator on Standards for the Administration of Juvenile Justice, p. 169 (1976): "The recommendation that the judge explain the terms of the disposition and the facts and reasons on which the disposition is based follows the lead to the National Advisory Commission on Criminal Justice Standards and ~oals, supra; the ABA, Standards Relatinq to Sentencing Procedures and Alternatives, supra; as well as the standards adopted by the IJA/ABA Joint Commission and the Standards and Goals Task Force on Juvenile Justice. It is anticipated that articulation of the reasons underlying the choice of disposition will not only avoid misunderstandings of the terms imposed, but also will help to improve dispositional decision- making through the development of written disposi- tional and correctional policy and by providing a basis for appellate review. To assist the respond- ent in understanding the disposition imposed, the judge should indicate the more severe and less severe alternatives, if any, that were rejected." However, we do not agree with appellant's contention that these findings must show parental unfitness in order to place a delinquent youth in a foster home. The cases cited by appellant discuss "dependent" and "neglected" children, not delinquent youths. The dispositional hearing held pursuant to section 10- 1221, R.C.M. 1947, concerns two types of youths: "delinquent youths" and "youths in need of supervision". The latter may present the issue of parental unfitness, since one definition of a youth in need of supervision, section 10-1203(13), R.C.M. 1947, states: "'Youth in need of supervision' means a youth who commits an offense prohibited by law which, if committed by an adult, would not constitute a criminal offense, including but not limited to a youth who: "(b) habitually disobeys the reasonable and lawful demands of his parents or guardian, or is ungovern- able and beyond their control * * *." However, when the youth court is concerned with a delin- quent youth, as in the present case, parental unfitness is not necessarily at issue. The fact that he has been adjudged a delinquent youth, as defined in section 10-1203(12), R.C.M. 1947, usually demonstrates the need for stronger and wiser authority than has been exercised by the parents, regardless of whether they have been adjudged to be unfit or not. This is not to say that the youth court possesses unlimited discretion at the dis- position stage as feared by appellant. Section 10-1202, R.C.M. 1947, states: "The Montana Youth Court Act shall be inter- preted and construed to effectuate the follow- ing express legislative purposes: "(1) to preserve the unity and welfare of the family whenever possible, and to provide for the care, protection and wholesome mental and physical development of a youth coming within the provisions of the Montana Youth Court Act; "(2) to remove from youth committing violations of the law the element of retribution and to substi- tute therefor a program of supervision, care and rehabilitation; " (3) to achieve the purposes of (1) and (2) of this section in a family environment whenever possible, separating the youth from his parents only when necessary for the welfare of the youth or for the safety and protection of the community; "(4) to provide judicial procedures in which the parties are assured a fair hearing and recognition and enforcement of their constitutional and statu- tory rights." Subsection (3) sets forth specific criteria to be applied when the youth court is considering separating the youth from his parents. Subsection (2) of section 10-1202 also expresses that this Act is concerned with the supervision, care, and rehabili- tation of the youth. At the dispositional stage the concern for the youth's welfare and the safety and protection of the community are paramount and not secondary to the interests of the parents. For these reasons, we hold that the fitness of the parents did not require specific attention in the findings of the youth court. For the foregoing reasons this case is reversed and remanded to the youth court to conduct a dispositional hearing in accordance with this decision. 6 , I 0- We concur: Chief Justice Il

April 5, 1977

0a62a302-21b6-42d3-aee6-5ed65dbd7590

STATE v ARMSTRONG

N/A

13331

Montana

Montana Supreme Court

No. 13331 I N T H E SUPREME COURT O F T H E STATE O F M O N T A N A 1977 THE STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- H A R O L D ARMSTRONG, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t , Honorable Robert J. Boyd, Judqe p r e s i d i n g . Counsel of Record: For Appellant: Greg Skakles argued, Anaconda, Pontana For Respondent: Hon. Michael Greely, Attorney General, Helena, Montana Denny Iloreen, A s s i s t a n t Attorney General, argued, Helena, Montana James J. Masar, County Attorney, D e e r Lodge, Montana Submitted: Plarch 21, 1977 Decided : APR - 6 19TP F i l e d : BYR -- Clerk Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Defendant was convicted of an attempted escape from the Montana State Prison by jury verdict in the district court, Powell County. Honorable Robert J. Boyd, District Judge, denied defendant's motion for a new trial, entered judgment of convic- tion, and sentenced defendant to an additional term of three years in prison. Defendant now appeals from judgment of convic- tion. On May 21, 1975, defendant Harold Armstrong and another inmate of Montana State Prison were reported missing from the 9:00 p.m. count. A search was instigated and they were located in a tunnel beneath the prison kitchen. Both inmates were wear- ing two sets of clothing. Two cut off shovels and two bottles of water were found in the tunnel. An information was filed in the district court, Powell County, on May 29 charging the two inmates with an attempted escape, a felony, in violation of section 94-4-103, R.C.M. 1947. Defendant moved for leave to represent himself and have a named attorney appointed as co-counsel. Defendant's motions, in effect, were granted. Defendant Armstrong entered a plea of "not guilty". He moved that " * * * the original copy of the Information, all evidence and papers and sworn statements from the State's witnesses" be furnished him. The county attorney indicated that he would provide defendant with whatever docu- ments he had on the case. The record does not disclose that the district court ever formally ruled on defendant's motion. Thereafter defendant moved for severance of his trial from that of the other inmate. A separate trial was granted by the district court. Defendant's case came on for trial on November 17, 1975. Following the swearing of the jury, the opening statement by the state, and the reservation by defendant of his opening statement, the trial judge read an omnibus cautionary instruc- tion to the jury substantially in the language of MJIG, In- struction No. 1.00. Evidence was received on behalf of both the state and defendant. Defendant took the witness stand in his own behalf and admitted being in the tunnel under the prison kitchen. He claimed he did not intend to escape but simply wanted to draw the attention of the people, and the court to his dissatisfaction with the services of his court-appointed attorney on appeal from his conviction for murder and robbery in the district court, Yellowstone County. During the course of the closing argument for the defense, defendant's attorney attempted to read a statement of the de- fendant to the jury as indicated by the following remarks: " * * * I will say that you can believe this from him, he has convinced me, and he did get the desired results because I am presently working on his appeal. Harold is quite an eloquent individual and last night he wrote down a few things, and I just don't like to read anything to a jury because it seems that it is put-on. He cannot understand of any plan that was ever presented by the State. He states that they presented no intent or an attempt to do anything. I think that they didn't present anything relative to the attempt unless it is guilt by location, or because it was attempt because he was down there -- "MR. MASAR: We object to the reading of anything that has been written by the Defendant as improper argument, the Defendant was on the witness stand and could have testified, and this is improper argument outside the issues and improper argument. "THE COURT: That is improper argument, Counselor." Thereafter defendant's attorney went on to argue other matters. Defendant was convicted, his motion for new trial was denied, a judgment of conviction was entered, and he was sentenced to a three year term to be served consecutively with the term of imprisonment he was then serving. Defendant appeals. Defendant assigns three specifications of error: (1) Error by the district court in refusing to permit co-counsel for defendant to read a statement from defendant to the jury during final argument. (2) Error by the district court in failing to rule on defendant's motion to produce all evidence, books, papers and sworn statements of state witnesses. (3) Error by the district court in reading the omnibus jury instruction to the jury prior to the reception of evidence. Directing our attention to the first issue, defendant contends that the refusal of the district court to permit his co-counsel to read defendant's statement to the jury constituted violation of his right to self-representation, a denial of assistance of counsel, and a prejudicial abuse of discretion. We are advised by counsel for defendant that the state- ment of defendant consisted of argument, not evidence, and al- though we do not have a copy of the statement, we are advised that it dealt with lack of criminal intent. Defendant's argument is based on the assumption that he should have had the right to address the jury himself in this case. This is not correct. Defendant's co-counsel had conducted the entire defense up to that point. There is no in- dication that defendant ever wished to participate in the open- ing statement, examination of witnesses, or argue before the judge or jury. Where a defendant is represented by counsel throughout the trial, he is not entitled, as a matter of right, to address the jury during closing argument. United States v. Dellinger, 472 F.2d 340 (1972), cert.den. 410 U.S, 970; State v. Brewer, 73 Wash.2d 58, 436 P.2d 473; Moore v. People, 171 Colo. 338, 467 P.2d 50. Because defendant had no right to address the jury personally he had no right to have his note read to the jury. The second issue is whether the district court's failure to rule on defendant's motion to produce "the original copy of the information, all evidence and papers and sworn statements from the state's witnesses" constitutes reversible error. The record does not disclose that the judge ever ruled on the motion. As noted from what has been said heretofore, the county attorney agreed to provide defendant with whatever documents he had on the case. There is no complaint anywhere in the record by defendant that he did not receive these papers or that he was prejudiced in any way by the district court's failure to rule upon his motion. Any error which does not affect the substantial rights of the defendant constitutes "harmless error" and will not constitute~unds for reversal on appeal. Section 95-2425, R.C.M. 1947. Rule 14, M.R.App.Civ.P. Finally defendant contends that the district court com- mitted error in reading the general omnibus cautionary instruc- tion to the jury prior to the reception of evidence without giving him any opportunity to object, argue its validity, or settle it in the manner of settlement of jury instructions at the conclusion of the evidence. The giving of a preliminary jury instruction prior to the introduction of evidence is a common practice in the dis- trict courts of Montana and has been held proper in State v. McKenzie, Mont . , 557 P.2d 1023, 33 St.Rep. 1043, citing section 95-1911, R.C.M. 1947. Here defendant also failed to object to the giving of the preliminary instruction at any time thereafter during the trial. On appeal, this Court will not consider issues which defendant did not raise in the trial court. Spencer v. Robert- son, 151 Mont. 507, 445 P.2d 48; Clark v . Worrall, 146 Mont. 374, 406 P.2d 822; State Highway Comm'n v. Yost Farm Co., 142 Mont. 239, 384 P.2d 277. The judgment of conviction is affirmed. Justice - 5 - Mr. Justice Daniel J. Shea, deeming himself disqualified, did not participate.

April 5, 1977

8b59f1c4-1a09-479b-888f-4f7395405000

ESTATE OF HARTMAN SR

N/A

13391

Montana

Montana Supreme Court

No. 13391 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A 1977 I N T H E M A T T E R O F T H E ESTATE O F W A L L A C E J. HARTMAN, SR., Deceased. Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , Honorable Gordon R. Bennett, Judge p r e s i d i n g . Counsel of Record: For Appellant: G r a y b i l l , O s t r e m , Warner and C r o t t y , Great F a l l s , Montana George R. C r o t t y , Jr. argued, Great F a l l s , Montana For Respondent : Rapkoch and Knopp, Lewistown, Montana P e t e r L. Rapkoch argued, Lewistown, Montana Submitted: January 21, 1977 Decided: WPR 2 8 1 9 f l F i l e d : Fg>a21! 1977 Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This is an appeal from an order of the district court, Lewis and Clark County, admitting to probate a carbon copy of the will of Wallace J. Hartman, Sr., hereinafter referred to as decedent. Decedent was a resident of Lewis and Clark County at the time of his death on January 29, 1976. He was survived by three children: Wallace J. Hartman, Jr., Shirley Hartman, respondent here, and Delores Puckett, appellant here. It is undisputed that decedent had properly executed a will on March 22, 1974, in the office of Charles M. Joslyn, an attorney in Choteau, Montana. The original will was given to decedent and a carbon copy retained by the attorney. This will provided that Delores Puckett receive $10.00, Wallace J. Hartman, Jr. receive $1,000 and some personal property, and Shirley Hartman receive the remainder of the estate. Evidence presented indicated the estate exceeds $1,000,000. On the date of decedent's death, Wallace J. Hartman, Jr., his wife, Janny, Shirley Hartman, and her fiance searched decedent's automobile and residence in Lincoln, Montana. Decedent's personal property and papers were taken to the house of Wallace J. Hartman, Jr. in Great Falls, Montana. A subsequent examin- ation of these papers did not reveal a will. Wallace J. Hartman, Jr. was appointed personal representative of the estate. There- after, Shirley Hartman presented a carbon copy of the March 22, 1974 will for probate. The district court entered its order admitting the carbon copy to probate. The primary conflict concerns the procedure and the proof required to probate a lost will under Montana's Uniform Probate Code, Section 91A-1-101, et seq., R.C.M. 1947. Prior to enactment of Montana's Uniform Probate Code, sections 91-1201, 1202, R.C.M. 1947, imposed special require- ments of proof in formal testacy proceedings seeking the probate of lost or destroyed wills. Section 91-1201, R.C.M. 1947, provided : "Whenever any will is lost or destroyed, the district court must take proof of the execution and validity thereof, and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of wills as in other cases. All the testimony given must be reduced to writing, and signed by the witnesses." Section 91-1202, R.C.M. 1947, provided: "No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses." To establish a prima facie case under these statutes, it was incumbent upon the proponent of a lost or destroyed will to show affirmatively either that the will he proposed was in exis- tence at the time of the death of testator or that it was fraud- ulently destroyed during his lifetime, in addition to the execution, validity and provisions of the will. In re Colbert's Estate, 31 Mont. 461, 468, 78 P. 971; In re Estate of Una M. Newman, 164 Mont. 15, 19, 20, 22, 518 P.2d 800. Colbert and Newman also stated that a will, last seen in the possession of a testator, which cannot be found after a careful and exhaustive search follow- ing death, is presumed to have been destroyed by the testator with the intent of revoking it, and that this presumption may be rebutted by clear and convincing evidence to the contrary. Montana's Uniform Probate Code contains no special stat- utory requirements of proof when seeking probate of a lost or destroyed will. The official comment to section 91A-3-303, R.C.M. 1947, states: " * * * Lost o r destroyed w i l l s must be e s t a b l i s h e d i n formal proceedings. See Section [91A-3-4023. * * *" Section 91A-3-402, R.C.M. 1947, which governs t h e c o n t e n t s of p e t i t i o n s i n formal proceedings, provides i n p e r t i n e n t p a r t : " I f t h e o r i g i n a l w i l l i s n e i t h e r i n t h e posses- s i o n of t h e c o u r t nor accompanies t h e p e t i t i o n and no authenticated copy of a w i l l probated i n another j u r i s d i c t i o n accompanies t h e p e t i t i o n , t h e p e t i t i o n a l s o must state t h e contents of t h e w i l l , and i n d i c a t e t h a t it i s l o s t , destroyed, o r otherwise unavailable." Furthermore, Sec 15, Chap. 263, Laws 1975 expressly repealed s e c t i o n s 91-1201, 1202, R.C.M. 1947. The i n s t a n t c a s e involves no d i s p u t e a s t o t h e execution of t h e w i l l , nor i t s provisions. What respondent contends i s t h a t t h e presumption favoring revocation under t h e circumstance of t h i s c a s e was abolished when t h e s p e c i a l s t a t u t o r y require- ments of proof under s e c t i o n s 91-1201, 1202, R.C.M. 1947 were repealed. Therefore s i n c e s e c t i o n 91A-3-407, R.C.M. 1947 places t h e burden of proof of revocation upon t h e c o n t e s t a n t , he must so do without t h e b e n e f i t of t h e presumption of revocation. Appel- l a n t , on t h e o t h e r hand, contends t h a t t h e presumption discussed i n Colbert and Newman s t i l l e x i s t s , and proponent must r e b u t t h e presumption when it a r i s e s by showing t h e e x i s t e n c e of t h e w i l l a t t h e t i m e of t h e t e s t a t o r ' s death. Neither of t h e s e conten- t i o n s is e n t i r e l y c o r r e c t . A s found from a reading of Colbert and c a s e s c i t e d there- i n , t h e presumption favoring revocation which a r i s e s when a w i l l known t o be i n t h e t e s t a t o r ' s possession cannot be found a f t e r h i s death, o r i g i n a t e d from t h e common l a w of England, where t h e c o u r t s a r e not c o n t r o l l e d by any p o s i t i v e s t a t u t o r y provisions. Loxley v. Jackson, 3 P h i l l - E c c . 126, 161 Eng. Reprint 1277 (1819); Colvin v. Fraser, 2 Hagg.Ecc. 266, 162 Eng. Reprint 856, 874, (1829); L i l l i e v. L i l l i e , 3 Hagg.Ecc. 184, 162 Eng. Reprint 1124 (1829). Colvin explains t h e reasoning behind t h i s presumption: " A l l t h e s e presumptions, i f they come t o be analysed, may be resolved i n t o t h e reasonable p r o b a b i l i t y of f a c t , deduced from t h e ordinary p r a c t i c e of mankind and from sound reason. Persons i n general keep t h e i r w i l l s i n places of s a f e t y , o r , a s we here t e c h n i c a l l y express it, 'among t h e i r papers of moment and concern.' They a r e instruments i n t h e i r n a t u r e revocable: t e s t a - mentary i n t e n t i o n i s ambulatory till death; and i f t h e instrument be not found i n t h e r e p o s i t o r i e s of t h e t e s t a t o r , where he had placed it, t h e common sense of t h e matter, prima f a c i e , is t h a t he himself destroyed it, meaning t o revoke it * * *." A s t h i s Court s t a t e d i n Colbert c i t i n g I n re Kennedy's W i l l , 30 M i s c . Rep. 1, 62 N . Y S . 1 0 1 1 : "'"Legal presumptions are founded upon t h e exper- ience and observation of d i s t i n g u i s h e d j u r i s t s a s t o what is u s u a l l y found t o be t h e f a c t r e s u l t i n g from any given circumstances; and, t h e r e s u l t being t h u s a s c e r t a i n e d , whenever such circumstances occur, they a r e prima f a c i e evidence of t h e f a c t presumed."'" The c o n t r o l l i n g i s s u e i n t h i s case i s whether t h e pre- sumption favoring revocation and t h e s t a t u t o r y requirements of proof i n s e c t i o n s 91-1202 a r e one and t h e s a m e . A thorough re- search of t h e law on t h i s p o i n t i n d i c a t e s they a r e not. A c a r e f u l reading of Colbert and Newman show t h i s Court was speaking of two s e p a r a t e and d i s t i n c t r u l e s of law when they considered t h e s t a t u t e , on one hand, and t h e presumption on t h e o t h e r . I n Newman, it i s s t a t e d : "Not only do t h e proponents of t h e proposed w i l l have t h e burden of proof t o e s t a b l i s h i t s existence when it is a l o s t w i l l , b u t -- a l s o where no testamentary papers have been found a f t e r a c a r e f u l and exhaustive search, a s i n t h i s case, a presumption arises t h a t t h e deceased destroyed t h e w i l l animo revocandi (with i n t e n t i o n t o revoke). * * * "For t h e reason t h a t t h e respondents d i d not m e e t t h e i r burden of proof t h a t t h e w i l l was a c t u a l l y i n e x i s t e n c e o r i n e x i s t e n c e i n contem- p l a t i o n of law a t t h e t i m e of deceased's death, and f o r t h e reason t h a t t h e presumption of d e s t r u c t i o n i s not overcome by t h e testimony adduced a t t h e hearing, t h e d i s t r i c t c o u r t e r r e d i n admitting t h e w i l l t o probate." (Emphasis supplied. ) Likewise, t h e c o u r t s of New York have made t h e d i s t i n c - t i o n t h a t s t a t u t e s i n t h e nature of s e c t i o n 91-1202, R.C.M. 1947, d i d not r e p l a c e t h e common law presumption of revocation, but added t o it. The c o u r t , i n Knapp v. Knapp,Selden 6, 1 0 N.Y. 276, 278 (1851) s t a t e d : " I t was w e l l s e t t l e d a t common law by a long series of adjudications i n t h e c o u r t s i n England, and which have been followed by t h e c o u r t s of t h i s s t a t e , t h a t t h e presumption of law is, t h a t a w i l l proved t o have had existence, and n o t found a t t h e death of t e s t a t o r , was destroyed animo revocandi. ( B e t t s v. Jackson, 6 Wend., 173; I d l e y v. Bowen, 1 1 Wend., 227.) And our s t a t u t e has placed t h i s matter beyond a l l c a v i l and doubt. It is a s follows: 'No w i l l of any t e s t a t o r , who s h a l l d i e a f t e r t h i s chapter s h a l l t a k e e f f e c t a s a law, s h a l l be allowed t o be proved as a l o s t o r destroyed w i l l , unless t h e s a m e s h a l l be proved t o have been i n existence a t t h e death of t h e t e s t a t o r o r be shown t o have been f r a u d u l e n t l y destroyed i n t h e l i f e t i m e of t h e t e s t a t o r ; nor unless its provisions s h a l l be c l e a r l y and d i s - t i n c t l y proved by a t least two c r e d i b l e witnesses, a c o r r e c t copy o r d r a f t being deemed equivalent t o one witness. ' (2 R.S., 68, B 67. ) This s t a t u t e recognizes t h e former common law r u l e , by r e q u i r i n g proof e i t h e r t h a t t h e w i l l w a s i n exis- t e n c e a t t h e time of t h e d e a t h of t h e t e s t a t o r , o r t h a t t h e l e g a l presumption t h a t t h e t e s t a t o r destroyed it animo revocandi be overcome by sat- i s f a c t o r y proof t h a t it w a s f r a u d u l e n t l y destroyed i n t h e l i f e t i m e of t h e t e s t a t o r . " The t r u e d i s t i n c t i o n between t h e presumption of revocation and such s t a t u t o r y requirements of proof i s t h a t t h e former is a r u l e of s u b s t a n t i v e law governing revocation, whereas t h e l a t t e r is a procedural l a w governing t h e probate of l o s t o r destroyed w i l l s . This d i s t i n c t i o n i s f u r t h e r explained i n J u s t i c e Traynor's d i s s e n t i n I n r e B r i s t o l ' s E s t a t e , 23 Cal.2d 221, 143 P.2d 689, "While t h e overruling of I n r e E s t a t e of Sweetman d i d much t o d i s p e l t h e confusion engendered by t h a t case, t h e r e l a t i o n of Probate Code, s e c t i o n 350, t o t h e presumption of revocation t h a t i s s a i d t o arise i n t h e s e c a s e s s t i l l r e q u i r e s c l a r i f i c a - t i o n . I f s e c t i o n 350 provided simply t h a t a pre- sumption of revocation a r i s e s i n t h e case of a l o s t w i l l , it would be necessary only t o r e b u t t h e pre- sumption t o prove t h a t t h e w i l l was i n e x i s t e n c e a t t h e time of t h e t e s t a t o r ' s death. A presumption of revocation independent of s e c t i o n 350 becomes super- fluous, however, i f t h e very e x i s t e n c e of t h e w i l l a t t h e t i m e of t h e t e s t a t o r ' s d e a t h must be proved. While proof of t h a t e x i s t e n c e e s t a b l i s h e s t h e f a c t of nonrevocation, t h e converse does not follow t h a t a w i l l e x i s t s because t h e r e i s no revo- c a t i o n t h e r e o f . I t would t h e r e f o r e be i d l e t o r e b u t t h e presumption of revocation i f t h e r e w e r e no proof t h a t a w i l l e x i s t e d a t t h e t i m e of t h e t e s t a t o r ' s death. "Section 350 cannot reasonably be construed a s c r e a t i n g a presumption of revocation. It i s concerned, not with t h e r u l e s governing revo- c a t i o n , which a r e s p e c i f i c a l l y set f o r t h i n s e c t i o n 74 of t h e Probate Code, but with t h e procedure f o r e s t a b l i s h i n g a l o s t o r destroyed w i l l . * * * Com~liance with t h e s u b s t a n t i v e D r c v i s i o n s t h a t deiermine t h e s t a t u s of t h e w i l i a s an executed instrument is not enough t o render t h e w i l l o p e r a t i v e a s a conveyance. A w i l l cannot be given i n evidence a s t h e foundation of a r i g h t o r t i t l e u n l e s s it has been duly probated * * * and s e c t i o n 350 prescribed t h e requirements t h a t must be s a t i s f i e d before a l o s t w i l l can be probated. It i s t h e r e f o r e not c o n t r o l l i n g t h a t under t h e s u b s t a n t i v e provisions of t h e law, t h e w i l l has been duly executed and has n o t been revoked, f o r it cannot be probated i f t h e require- ments prescribed i n t h e Code f o r t h e probate of w i l l s cannot be met. The requirement of proof t h a t t h e w i l l e x i s t e d a t t h e time of t h e t e s t a t o r ' s death cannot be t r a n s l a t e d i n t o a requirement of proof of nonrevocation." (Emphasis supplied.) Other a u t h o r i t i e s a l s o point o u t t h i s presumption i s a s u b s t a n t i v e r u l e of law r e l a t e d t o revocation by a physical a c t , r a t h e r than a procedural r u l e governing l o s t o r destroyed w i l l s . on 9 Wigmore/Evidence 3d Ed, B 2523, s t a t e s : "The revocation of a w i l l by d e s t r u c t i o n may be i n f e r r e d , on a p r i n c i p l e of Relevancy already considered * * * from t h e f a c t t h a t it once e x i s t e d but cannot be found a t t h e t e s t a - t o r ' s death." (Emphasis supplied.) Atkinson W i l l s 2nd Ed, S 1 0 1 , p. 5 5 3 , s t a t e s "The matter of revocation by physical a c t i s compli- cated by t h e operation o f presumptions under c e r t a i n circumstances. Thus, it i s o f t e n held t h a t where t h e w i l l was i n t e s t a t o r ' s possession and cannot be found a t t h e t i m e of h i s death, it w i l l be presumed t h a t t h e t e s t a t o r destroyed it with i n t e n t t o revoke, and t h e same has been held where a d u p l i c a t e w i l l i n t e s t a t o r ' s possession cannot be found. Indeed it i s o f t e n s a i d t h a t t h e burden of proof i s on t h e proponent under t h e s e circumstances. * * *" (Emphasis supplied.) Furthermore, t h i s presumption i s c o n t r o l l i n g i n j u r i s d i c - t i o n s which do not have and never have had s t a t u t e s imposing s p e c i f i c requirements of proof f o r probating l o s t o r destroyed wills. This statement is found at Anno. 3 ALR2d 949, 986: "It has been provided by statute in some instances that no will shall be proved as a lost will unless it is shown to have been in existence at the time of the death of the testator, or is shown to have been destroyed either without his consent or fraudulently during his lifetime. Among the juris- dictions which, as shown by the adjudications falling within the scope of this annotation, have had statutes which in effect so provide, are Arkansas, California, Indiana, Montana, New York, Ohio, and Washington." Nevertheless, the annotation lists another 32 jurisdictions which adhere to this presumption and have done so for a long time, as evidenced by these few cases: Throckmorton v. Holt, 180 U.S. 552, 21 S.Ct. 474, 45 L ed 663 (1901); McBeth v. Mc- Beth, 11 Ala. 596 (1847); Weeks v. McBeth, 14 Ala. 474 (1848); Allen v. Scruggs, 190 Ala. 654, 67 So 301 (1914); Valentine's will, 93 is. 45, 67 N.W. 12 (1896); Scoggins v. Turner, 98 N.C. 135, 3 S.E. 719 (1887); Shacklett v. Roller, 97 Va. 639, 34 S.E. Thus the repeal of sections 91-1201, 1202, R.C.M. 1947 did not abolish the rebuttable presumption of revocation, which arises when a duly executed will, last seen in the testator's possession, cannot be found at his death. Section 91A-3-407, R.C.M. 1947, provides in part: "In contested cases, petitioners who seek to establish intestacy have the burden of establish- ing prima facie proof of death, venue, and heir- ship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. * * *" As the official comment states, this is a fairly general approach to questions concerning burdens of going forward with the evidence. I n essence, t h e procedure i s t h e same a s t h a t under t h e o l d law. A s s t a t e d i n I n re C o l b e r t l s E s t a t e , 31 Mont. 461, " I n order t o simplify t h e discussion, it w i l l be w e l l t o a s c e r t a i n f i r s t what a r e t h e essen- t i a l s i n proving a l o s t w i l l . I n every case under our s t a t u t e t h e r u l e of procedure i s t h a t t h e proponent of t h e w i l l must f i r s t make o u t a prima f a c i e case; t h a t i s t o say, must make such proof a s would e n t i t l e t h e w i l l t o probate i n t h e absence of a c o n t e s t . Then t h e c o n t e s t a n t a t t a c k s t h e v a l i d i t y of t h e w i l l , t h e proponent defends t h e same, and t h e c o n t e s t a n t r e b u t s t h e testimony of t h e proponent." What w e have held i s t h a t t h e c o n t e s t a n t may u t i l i z e t h i s rebut- t a b l e presumption i n meeting h i s burden of proving revocation. The proponent then has t h e burden of going forward with s u f f i c i e n t evidence t o r e b u t t h i s presumption. However, a p p e l l a n t i s mistaken i n a s s e r t i n g t h a t t h e proponent can only r e b u t t h e presumption by proving e x i s t e n c e of t h e w i l l subsequent t o t h e t e s t a t o r ' s death. I n a d d i t i o n t o such evidence, t h e proponent may a l s o show (1) t h a t one o t h e r than t h e t e s t a t o r had possession of t h e w i l l ; ( 2 ) t h a t t h e t e s t a - t o r was on f r i e n d l y o r unfriendly t e r m s with c e r t a i n i n t e r e s t e d persons; (3) t h a t t h e t e s t a t o r was p h y s i c a l l y o r mentally in- capable of destroying t h e w i l l with t h e i n t e n t t o revoke; o r ( 4 ) t h a t another had t h e opportunity t o dispose of t h e w i l l and b e n e f i t thereby. See3ALR2d 949. This l i s t has not been exhausted; c e r t a i n l y t h e r e may be o t h e r f a c t o r s r e l e v a n t t o t h e i s s u e . I n any event, t h e proof required must be c l e a r , s a t i s f a c t o r y and convincing. I n re C o l b e r t l s E s t a t e , supra. The second i s s u e r a i s e d by a p p e l l a n t i s t h a t t h e d i s t r i c t c o u r t e r r e d i n disallowing c e r t a i n d e c l a r a t i o n s of decedent i n which he a l l e g e d l y s t a t e d t o h i s son t h a t he had destroyed h i s w i l l and t h e reason f o r doing so. This i s s u e i s well s e t t l e d i n Montana by Colbert. Such d e c l a r a t i o n s are n o t admissible, unless they a r e a p a r t of t h e r e s gestae, and a r e used t o simply show t h e mental s t a t e of t h e t e s t a t o r when he e i t h e r executed t h e w i l l o r when he destroyed it. A n extensive discussion of t h e reasoning f o r t h i s r u l e of law i s provided i n Colbert. The declarations sought by appellant w e r e not admissible, s i n c e no a c t of destroying t h e w i l l was ever proven. What a p p e l l a n t was t r y i n g t o prove by these declarations was t h e a c t of destroying t h e w i l l , not t h e i n t e n t of t h e decedent while t h e alleged destruction was taking place. The d i s t r i c t c o u r t w a s c o r r e c t i n i t s exclusion of t h e evidence. This case i s remanded f o r hearing c o n s i s t e n t with t h i s opinion. Chief J u s t i c e D

April 28, 1977

f4e75b96-7173-4352-b839-c6e3a926a47f

MacDonald v. Protestant Episcopal Church

435 P.2d 369

11189

Montana

Montana Supreme Court

435 P.2d 369 (1967) R.B. MacDONALD and A.P. MacDonald, Plaintiffs and Respondents, v. The PROTESTANT EPISCOPAL CHURCH IN the DIOCESE OF MONTANA, and the Diocese of Montana, a Corporation, Defendants and Appellants. No. 11189. Supreme Court of Montana. Submitted October 18, 1967. Decided December 15, 1967. *370 Murphy, Robinson &amp; Heckathorn, I. James Heckathorn (argued), Kalispell, Worden, Worden, Thane &amp; Robb, Donovan Worden, Jr. (argued), Missoula, for appellants. J.A. Turnage (argued), Charles B. McNeil (argued), Polson, for respondents. JAMES T. HARRISON, Chief Justice. This is an appeal by defendants from a verdict and judgment for the plaintiffs in an action to recover damages allegedly caused by the negligence of the defendants. The plaintiffs alleged that the defendants' negligence was the proximate cause of a fire which damaged their property, Wild Horse Island. The negligence alleged is the failure to properly supervise two boys who were staying at a church camp operated by the defendants. One of the boys allegedly started the fire. The two boys, Bernard Hanson, age 17, and Dwight McKay, age 16, stayed at Camp Marshall, a camp operated by appellants during the summer of 1963. The camp operated eight different encampments during that summer. Six of these were for young people and two for families. Hanson was supposedly employed as the camp handyman and was to stay at the camp the entire eight sessions. McKay was a counselor for the six groups of young people and he was to leave prior to the final two family encampments. McKay asked and was granted permission to stay for these last two sessions and help Hanson. Both boys were given room, board and transportation to and from the camp. In addition, Hanson was paid $100 at the end of the summer. Those attending the camp during the various encampments had to pay to do so. The day of the fire, August 9, 1963, was allegedly the boys' day off. They told the camp director that they were going over to Wild Horse Island. The camp director had no objection. He believed that the staff members of the camp had been given permission to visit the island by the plaintiff, as indeed at least one had. The boys took a camp boat over to the island. Apparently Hanson stumbled while smoking and started a fire. The boys tried to put it out but it spread too rapidly and they went for help. This suit is predicated on the theory that the camp personnel knew or should have known that the boys could not be trusted away from the camp by themselves and they negligently failed to properly supervise the boys. The camp director was supposed to have been put on guard against this danger because the boys had been involved in an earlier fire at the area dump. The only evidence connecting Hanson and McKay with the fire is a letter written by Hanson to the attorney for the plaintiffs. In it he admits he started the fire accidentally. Defendants claim the letter is hearsay and should not have been admitted. Plaintiffs contend the letter is a declaration against *371 interest and thus is within that exception to the rule against hearsay evidence. A declaration against interest is a hearsay statement which is made by a person who is neither a party to the action nor in privity with a party. (2 Jones on Evidence, 5th ed. § 295.) The declaration against interest must meet two requirements to be admissible. The first is that the declarant is unavailable to testify. (4 Wigmore, 3d ed. § 1456.) The second is that the statement is against the proprietary or pecuniary interests of the declarant and thus is probably true even though oath and cross examination are absent since it is not natural to make untrue statements against those interests. (Id., § 1457.) As to the first requirement, although many jurisdictions allow other causes of unavailability (29 Am.Jur.2d, Evidence, § 618), Montana only admits the declaration when the declarant is dead. R.C.M. 1947, § 93-401-27, subd. 4; Wilson v. Davis, 110 Mont. 356, 103 P.2d 149 (1940); McReynolds v. McReynolds, 147 Mont. 476, 481, 414 P.2d 531 (1966). Consequently the letter should not have been admitted. Defendants claim the district court erred in not granting their motions for dismissal and a directed verdict. The basis for this claim is the theory that when the evidence is viewed in the light most favorable to the plaintiff and it does not support a verdict for him the case should be dismissed. Rule 41(b), M.R.Civ.P., provides that the defendant may move the court for dismissal at the end of plaintiff's case on the grounds that upon the facts and the law plaintiff has shown no right to relief. This court will not overturn the judgment of the district court as long as it is supported by substantial evidence. Teesdale v. Anschutz Drilling Company, 138 Mont. 427, 357 P.2d 4 (1960); Rozan v. Rosen, 150 Mont. 431 P.2d 870. In ruling on the motions for dismissal and a directed verdict, the court must view the evidence in the light most favorable to the plaintiff and if a prima facie case is made out the motion should not be granted. The motion should be granted if it follows as a matter of law that recovery cannot be had upon any view of the evidence, including legitimate inferences to be drawn from it. Castle v. Thisted, 139 Mont. 328, 363 P.2d 724 (1961) and cases cited therein. If there is no evidence of any negligent act or omission of duty by the defendant to support a verdict for the plaintiff the motion should be granted. Jackson v. William Dingwall Co., 145 Mont. 127, 399 P.2d 236 (1965). While we have heretofore discussed the error in the admission of the letter stating the cause of the fire, we must now look to the balance of the case in order to determine if, applying the previously quoted rules to this case and viewing the evidence in the light most favorable to the plaintiffs, there is substantial evidence, or any evidence, of a negligent act or omission of duty on the part of defendants? The gravamen of the complaint is that the boys were prone to vandalism or negligent acts or at the very least could not be trusted, and that the camp supervisors should have known this and taken proper precautions; that a reasonable man would supposedly not have let these two boys leave camp by themselves. There is no question about the veracity of the witnesses testifying about the two boys. The undisputed facts are these. The boys were attending the camp in some capacity other than that of the other youths who only stayed a week at a time. McKay had supervisory duties over the temporary campers during the first six encampments. Both boys were given duties and responsibilities. Hanson was given one day off from his duties each week. The boys caused the fire at the dump area. Their explanation was that they thought paper trash was to be burned. There is no evidence in the record that anyone thought the fire was started for any other reason. There were no signs prohibiting burning at the dump. After being told that burning was prohibited there were no more fires at the dump. *372 For the verdict and judgment to be upheld the evidence must support a finding that the camp personnel had breached their duty of proper supervision. The fact of the one fire is not enough to give rise to an inference of a propensity to start fires or to do any other acts of negligence or vandalism. That such might be true would be merely conjecture for there was no other showing of any negligent acts, vandalism, incompetence or any other reason not to trust the boys away from camp by themselves. The prior fire is the only evidence tending to show a wrongdoing and there was no showing that this was anything but a natural mistake. The mere fact of the accident is not evidence of negligence. There is no substantial evidence to show that the camp personnel should have known that they should have supervised these boys more closely. The plaintiffs have not established by anything other than conjecture that a reasonable man would not have let these boys leave the camp by themselves. Neither can it be claimed that it was negligent for the camp director to give them permission to go to the island. The plaintiff R.B. MacDonald testified: "Q. Actually, the public generally uses Wild Horse Island? A. With the reservation of all groups that are, there's no smoking except in designated areas which we don't have and no camp fires and no hunting. "Q. However, there are groups the public generally come over singly and in pairs and wander about the island and you don't know they are there a lot of times? A. This is true. The island is posted around the whole nine miles about every half mile or so with the signs, but we do have people come on the island without our knowledge. "Q. Would you deny that you had given Mr. Theis or had talked to him and told him that you had no objection to people from the Camp Marshall to come over and explore the island? A. I would add only would not deny, but I would add that a man from St. Louis and his wife, we invited back at their convenience. If he is Mr. Theis or not, I don't know. "Q. I rather think that it is, but I don't know either. I assume, because he is from there. A. He wanted to come back. As I recall, he had a camera, or something, and we invited him and his wife back. She and my wife became friends in a little visit and we invited him back to take pictures of the animal life and come back any time that they could. "Q. Do you think it would have been possible that you told him that other employees of the camp could come over if they wished? A. I don't recall, sir. "Q. Would you deny that you had? A. I just don't remember it. I remember inviting him back very specifically. I would think that perhaps he could have interpreted [it] to include other people. My impression, as I recall it, and I remember inviting him back and his wife. Now, if he interpreted it to be other people, this might have been a misunderstanding between us, and I may have said that. I do know I invited him and his wife back, and I think they had a little boy or something or two little children or something. Father would know. And I invited them back." From the plaintiff's own testimony it is clear that permission may have been inferred even if it was not given. If so, was the person invited negligent for inferring permission? We cannot tell. There is no evidence to show it was negligent to infer permission from plaintiff's statements. Plaintiff had the burden of proof on that issue. Were he to rely on the giving of permission as the negligent act he would have to show that the camp director and other personnel should have known that there was no permission. There is no evidence on that issue. The lower court should have granted the motions for dismissal and a directed verdict for there is no showing of negligence on the part of the defendants under any view of the evidence. *373 Because of the foregoing the remainder of defendants' specifications of error need not be discussed. The judgment is reversed, and the cause ordered dismissed. MR. JUSTICES HASWELL, ADAIR and CASTLES concur. MR. JUSTICE JOHN C. HARRISON did not participate.

December 15, 1967

7725a396-ec56-49f7-9367-654c9df1823b

BILLINGS ASSOCIATED PLUMBING v EME

N/A

13590

Montana

Montana Supreme Court

No. 13590 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A 1977 BILLINGS ASSOCIATED PLUMBING et a l . , P l a i n t i f f s and Respondents, DAVID M. E M E R S O N e t a l . , BOARD O F PLUMBERS, STATE O F M O N T A N A , Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C. B. Sande, Judge p r e s i d i n g . Counsel of Record: For Appellants: Hon. Mike Greely, Attorney General, Helena, Montana Dennis Moreen argued, A s s i s t a n t Attorney General, Helena, Montana For Respondents: Calton and Stephens, B i l l i n g s , Montana Calvin A. Calton argued, B i l l i n g s , Montana F i l e d : Submitted: March 21, 1977 Decided : - & Y 2 Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This appeal stems from an action filed in Yellowstone County by respondents, pursuant to the Uniform Declaratory Judgment Act, section 93-8901, et seq., R.C.M. 1947, question- ing the constitutionality of section 66-2427, R.C.M. 1947, as applied to them. Respondents are master plumbers, licensed by appellant, Board of Plumbers, and engaged in contracting for plumbing services within the jurisdictional limits of the City of Billings, Montana. Section 66-2427 requires a permit, accompanied by a fee, for the installation, removal, alteration or repair of plumbing and drainage systems in a building or structure, with certain exceptions. Respondents alleged in their complaint that a permit and permit fee is also required by the City of Billings Municipal Building Code which was adopted in accordance with section 69-2112, R.C.M. 1947, and is as strict or stricter than the Montana Plumb- ing Code. It is further alleged that respondents must pay two fees, but receive only one inspection which is performed by the city inspector. Therefore, respondents conclude that the permit fee required by section 66-2427 is an invalid exercise of police power, and as such violates the due process and equal protection clauses of the Montana Constitution and the Constitution of the United States. Appellant then filed a consolidated motion to dismiss and a motion for change of venue to Lewis and Clark County which was denied. The denial of the motion for change of venue was then appealed, and is the only matter presented for our consid- eration. Since the Uniform Declaratory Judgment Act does not fix venue of a declaratory judgment action, the general venue statutes apply. The two statutes specifically applicable to the situation at hand are sectiors93-2902(2), R.C.M. 1947, and 93-2906(1), R.C.M. 1947. Section 93-2902(2) provides: "Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: "2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office; or a,gainst a person who, by his command or in his aid, does anything touching the duties of such officer." Section 93-2906 (1) provides: "The court. or judge must, on motion, change the place of trial in the following cases: "1. When the county designated in the complaint is not the proper county." These statutes were recently discussed at length in Guthrie v. Montana Dept. of Health and Environmental Sciences, Mont . - 1 - P.2d , 34 St.Rep. 155, 160, (1977). Guthrie also involved a state agency and private litigants, however there the private parties sought an injunction. As stated in Guthrie, in deciding which is the proper county under section 93-2902(2), the determinative factors are the nature of the cause of action and where it arose. Appellant argues that this cause of action arose in Lewis and Clark County, the official residence of appellant. Relying on Gildroy v. Anderson, 159 Mont. 325, 497 P.2d 688, and Lunt v . Div. of Workmen's Compensation, 167 Mont. 251, 253, 537 P.2d 1080, appellant contends that its official action and conduct which transpired in Lewis and Clark County gave rise to the present action. Respondents, on the other hand, assert that it is the implementation of the administrative regulations and the actual effect in Yellowstone County of the operation of section 66-2427 which is at issue here. Respondents rely upon Montana-Dakota U. Co. v. Public Ser. Comm., 111 Mont. 78, 107 P.2d 533, and submit that the Montana-Dakota U. Co. case was not overruled by the decision in Lunt with respect to the factual situation at hand. We agree. In Lunt it states: " * * * Any portions of Montana-Dakota Utilities Co. v. Public Service Commission, 111 Mont. 78, 107 P.2d 533, inconsistent with this opinion are hereby expressly overruled." The effect of this statement was discussed in Guthrie, at 160: "Both cases were properly decided, the difference in result is based on the fundamental difference between the nature of the causes of action involved." Such is the case here. Respondents' complaint does not challenge the statewide application of section 66-2427, R.C.M. 1947. What is questioned is its application to those master plumbers engaged in contracting for plumbing services within the jurisdictional limits of the City of Billings. As stated in Guthrie, venue provisions relating to actions against state agencies should be liberally construed in favor of private liti- gants. This especially applies when the operation or effect of state agency action is at issue, as in this case, as compared to those causes of action questioning the official conduct itself. For these reasons, the district court's denial of the motion for change of venue to Lewis rk County is affirmed. Chief Justice 1 We concur: Justices [ J - 4 -

May 2, 1977

54c1a0e6-8f68-42a2-b99d-45fa5bcd7b8d

WILLIAMS v MATOVICH

N/A

13511

Montana

Montana Supreme Court

No. 13511 I N T H E SUPREME COURT O F THE STATE O F M O N T A N A 1977 WILLIAM E. WILLIAMS, P l a i n t i f f -vs- GEORGE MATOVICH e t a l . , Defendants. Appeal from: U.S. D i s t r i c t Court Hon. James B a t t i n , Judge p r e s i d i n g . Counsel of Record: For P l a i n t i f f : Steven L. Bunch argued, Helena, Montana For Defendants: Grant and Heard,, Columbus, Montana Richard W. Heara argued, Columbus, Montana Blenkner and Laws, Columbus, Montana For Amicus Curiae: Hon. Michael Greely, Attorney General, Helena, Montana Submitted: February 2 3 , 1977 Decided:m/j 3 1(17] 4 - - Clerk M r . Chief J u s t i c e Paul G. H a t f i e l d d e l i v e r e d t h e Opinion of t h e Court. This m a t t e r has been presented by c e r t i f i c a t i o n from t h e United S t a t e s D i s t r i c t Court, D i s t r i c t of Montana, B i l l i n g s Division, seeking a d e c l a r a t o r y judgment pursuant t o Rule 1, M.R.Civ.P. The s t i p u l a t e d f a c t s , made p a r t of t h i s c e r t i f i c a t i o n a r e : During January 1976, p l a i n t i f f Williams purchased g r o c e r i e s on c r e d i t from defendant Matovich, pursuant t o a v e r b a l agreement. On January 26, 1976, Williams' employment a t S t i l l - water Packing was terminated. Matovich then i n i t i a t e d s u i t i n s t a t e c o u r t a g a i n s t W i l l i a m s f o r t h e a l l e g e d grocery d e b t i n t h e sum of $157.34. Pursuant t o s e c t i o n 93-4301, R.C.M. 1947, Matovich a p p l i e d f o r a w r i t of attachment a t t h e t i m e t h e summons issued. The w r i t of attachment was i s s u e d by t h e c l e r k of c o u r t , S t i l l w a t e r County, which was presented by t h e s h e r i f f , S t i l l w a t e r County, t o S t i l l w a t e r Packing. The s h e r i f f was then given a check f o r t h e e n t i r e amount a l l e g e d due and owing i n t h e complaint, l e a v i n g Williams w i t h a paycheck of $9.82. The s h e r i f f has r e t u r n e d t o W i l l i a m s t h a t p o r t i o n of t h e paycheck exempted from garnishment by 1 5 U.S.C. 1671, e t seq. The nonexempt p o r t i o n has been r e t a i n e d , pending t h e outcome of a counter s u i t f i l e d by Williams i n f e d e r a l d i s t r i c t c o u r t , a l l e g i n g t h e w r i t of attachment w a s a d e n i a l of due process. The i s s u e c e r t i f i e d i s whether t h e Montana w r i t of a t t a c h - ment s t a t u t e s , s e c t i o n s 93-4301, e t seq.,R.C.M. 1947, as a p p l i e d , v i o l a t e t h e n o t i c e and o p p o r t u n i t y t o be heard requirements of due process a s guaranteed by t h e Fourteenth Amendment t o t h e United S t a t e s C o n s t i t u t i o n ? The four l e a d i n g c a s e s i n t h i s a r e a are Sniadach v . 1820, Family Finance Corp., 395 U.S. 337, 89 S . C t . / , 23 L Ed 2d 349; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L Ed 2d 556; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L Ed 2d 406, 412, 417; and North Georgia Finishing, Inc., v. DiChem, Inc., 419 U.S. 601, 94 S.Ct. 2601, 41 L Ed 2d 210. Sniadach involved the garnishment of wages under a Wisconsin statute, whereby the clerk of court issued a summons at the request of the creditor's attorney, and the latter, by serving the summons on the garnishee, froze the debtor's wages. The creditor was allowed 10 days in which to serve the summons and complaint on the debtor after service on the garnisher, although in this case the debtor was served the same day as was his employer. The wages would be unfrozen if the wage earner eventually won on the merits of the debt action. The Supreme Court held that this process violated the fundamental principles of due process as required by the Fourteenth Amendment because it did not provide notice and an opportunity for a hearing prior to the garnishment. Furthermore, the court stressed that wages are a specialized type of property, which when taken can cause severe hardship to the wage earner. Fuentes dealt with a prejudgment attachment of personal property under Florida and Pennsylvania statutes. Both statutes involved anexparte application made to the clerk, claiming an interest in the property, and the posting of a bond. Thereafter, the clerk issued a writ of replevin. Both statutes allowed the defendant to post a bond to regain possession. Otherwise, the property would be returned only if the defendant won on the merits of the litigation. Florida did require the creditor to file a complaint initiating a later court action, however Pennsylvania allowed the seizure of property under no more than a security bond and initiating no court action. Therefore, in the latter situation, the defendant had to initiate the litigation if he were to ever be afforded a post-seizure hearing. The Supreme Court, stating that notice and opportunity to be heard must be given at a meaningful time and in a meaningful manner, struck down both statutes, since neither provided for notice or an opportunity to be heard at any kind of prior hearing. The court also rejected the argument that only necessities, such as the wages in Sniadach were afforded such protection, stating that the Fourteenth Amendment applied to "property" generally. In Mitchell the court upheld a Louisiana statute allow- ing the prejudgment sequestration of personal property subject to a vendor's lien. Emphasis was placed upon the fact that both the creditor and the debtor had an interest in the property subject to sequestration, as evidenced by the court's statement: "With this duality in mind, we are convinced that the Louisiana sequestration procedure is not in- valid, either on its face or as applied. * * *" (Emphasis supplied. ) Both Sniadach and Fuentes were discussed and disting~ished~with the court finding the following to be the saving characteristics of the Louisiana statute: (1) The writ did not issue on a conclusory allegation of ownership or possessory rights. The petitioner was required to set forth specific facts, on a verified petition or affidavit, showing the interest claimed and that it was within the power of the defendant to conceal, dispose of, or remove the property during the pendency of the action. (2) The showing was made before a judge, and it was the judge who issued the writ. (3) A bond was required of the petitioner. (4) The debtor was entitled to seek immediate dissolu- tion of the writ, which placed the burden of proving the grounds of the writ upon the creditor. (5) The debtor, with or without seeking dissolution of the writ, was able to regain possession of the property by filing his own bond. North Georgia Finishing involved the garnishment of a bank account of a corporation. The statutory procedure required an affidavit by plaintiff or his attorney to be presented to the clerk of court or any officer authorized to issue attachment, stating the amount due and that he had reason to apprehend the loss of the same unless garnishment issued. A bond of double the amount was also required of plaintiff. Defendant could dissolve garnishment by posting a bond of his own. The court stated that the statute was vulnerable for the same reasons as Fuentes, that the bank account was impounded and absent a bond by defendant, put totally beyond use pending litigation on the debt, all by writ of garnishment by a court clerk without notice and opportunity for an early hearing, and without participation by a judicial officer. Furthermore, the court stated that the statute was not saved by Mitchell since the safeguards present in Mitchell were lacking in the Georgia statute. As applied to the facts of this case, we find that the Montana writ of attachment statutes, sections 93-4301 et seq., R.C.M. 1947, violate the notice and opportunity to be heard re- quirements of due process as set forth in the Fourteenth Amend- ment to the United States Constitution. We so find for two reasons. First, Sniadach is the controlling authority for the factual situation at hand, which is very similar if not identi- cal, to Sniadach. Here, wages have been attached pursuant to a writ issued by a clerk of court, at the request of a creditor, without notice or an opportunity for a hearing prior to the attachment. We are cognizant of the emphasis placed upon the specialized type of property involved, wages. The court citing Sniadach reaffirmed this in Mitchell: " * * * 'a specialized type of property present- ing distinct problems in our economic system' * * * 'prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall1* * *." Furthermore, the suing creditor here, as in - - Sniadach, claimed no prior interest in the wages seized. There exists no duality of interest, which was present in Fuentes and Mitchell. Second, even if Mitchell governed as contended by Matovich, the Montana statute, as applied, failed. North Georgia Finishing also lacked the duality of interest, however the court did men- tion that none of the saving characteristics of Mitchell were present. Such is the case here. Though we find Sniadach con- trolling, the saving characteristics of Mitchell are absent in the Montana prejudgment attachment procedure. Matovich contends that Montana provides three procedures whereby the defendant can apply to the court for relief either prior or subsequent to the levy, and also requires a bond of the plaintiff. Pursuant to sections 93-4327 and 4328, R.C.M. 1947, defendant can move to discharge the attachment upon the condition that he file a bond of his own. Second, pursuant to sections 93-4329 and 4330, R.C.M. 1947, defendant, either before or after the release of attached property or before the actual attachment, can move the court to discharge the attachment on the grounds that it was improperly or irregularly issued. If from the appli- cation it satisfactorily appears the writ was so issued, it must be discharged. Finally, sections 93-4332 and 93-4333, R.C.M. 1947, allow the debtor to seek discharge of the writ any time before the actual application of the attached property to the payment of the judgment. The only Montana safeguards equal to any of those in Mitchell are that the plaintiff must file a bond to obtain the writ and defendant may file a bond to release his property. The Montana procedures for defendant to question the attach- ment do not equal those of Mitchell. In Mitchell the defend- ant could merely file his motion to dismiss, which placed the burden on plaintiff to prove the facts substantiating the writ. However, sections 93-4331 and 93-4333, R.C.M. 1947, place the burden upon defendant to prove that the writ was improperly or irregularly issued. Additionally, the opportunity for a pre- seizure hearing under section 93-4329 ie illusory. More likely than not, as in this case, the defendant is unaware that the writ has issued until the property is seized. Furthermore, the writ issued upon an affidavit presenting a conclusory allegation that a debt was owed to plaintiff. Sec- tion 93-4302, R.C.M. 1947, requires no showing by way of specific facts, as did the statute considered in Mitchell. The applica- tion under section 93-4302 was made to the clerk of court who issued the writ. This also falls short of Mitchell wherein this determination was made by the judge. Therefore, we find that, as applied, sections 93-4301 et seq., R.C.M. 1947, violate the fundamental principles of due process guaranteed by the Fourteenth Amendment to the United States Constitution. Chief Justice A

March 3, 1977

066451de-66b3-42e7-b981-123dc620fce9

MT ASSN OF UNDERWRITERS v STATE

N/A

13555

Montana

Montana Supreme Court

No. 13555 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 MONTANA ASSOCIATION OF UNDERWRITERS, Plaintiff and Appellant, STATE OF MONTANA, acting by and through the Department of Administration, and Montana Benefits, Inc. , Defendants and Respondents. Appeal from: District Court of the First Judicial District, Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellant: Philip W. Strope argued, Helena, Montana For Respondent : Small, Cummins and Hatch, Helena, Montana Robert Cummins argued, Helena, Montana Michael Young argued, Helena, Montana Submitted: March 17, 1977 Decided ~ P R 2 9 1971 - - . M r . J u s t i c e Frank I. Haswell delivered the Opinion of the Court. P l a i n t i f f f i l e d an action f o r declaratory judgment and injunctive r e l i e f against t h e S t a t e Department of Administration and a private corporation t o block implementation of a deferred compensation plan f o r public employees. The d i s t r i c t court, Lewis and Clark County, the Hon. Gordon R. Bennett, d i s t r i c t judge, granted summary judgment t o defendants denying the requested r e l i e f . P l a i n t i f f appeals. P l a i n t i f f i s the Montana Association of Life Underwriters, a trade association whose members a r e involved, among other things, i n the f i e l d of employee pension plans. There a r e two defendants: The Department of Administration (DOA), an adminis- t r a t i v e agency of the s t a t e of Montana; and Montana Benefits, Inc. (MFI), a private p r o f i t corporation, which i s engaged i n establishing and administering the deferred compensation plan f o r public employees. I n 1974 the Montana l e g i s l a t u r e enacted l e g i s l a t i o n author- izing public employees t o e n t e r i n t o a deferred compensation plan. Chapter 264, 1974 Session Laws, codified a s sections 68-2701 through 68-2709, R.C.M. 1947. Essentially the l e g i s l a t i o n authorized the s t a t e o r i t s p o l i t i c a l subdivisions, a f t e r reaching agreement with i t s employees, t o e n t e r i n t o a program whereby i t s employees could defer a portion of t h e i r pay i n a qualified deferred compensation plan under the federal I n t e r n a l Revenue Code. Under such a plan the employee would not pay income taxes on the portion of h i s salary deferred u n t i l it was f i n a l l y d i s - tributed t o him under the plan. The s t a t e o r i t s p o l i t i c a l sub- division incurred no financial l i a b i l i t y f o r losses incurred by any plan established under the legislation. DOA was authorized t o contract with employees t o defer compensation under any qualified plan, to establish rules and regulations for the proper operation of the plan, and to contract with private corpora- tions or institutions for consolidated b i l l i n g and other adminis- trative services. Pursuant t o t h i s legislation, DOA entered into a written agreement on September 1 7 , 1975 with Montana Public Employees Benefit Services Co., Inc., the predecessor of MBI, wherein the corporation was given the exclusive right t o establish and administer a plan of deferred compensation for public employees. O n the same date DOA entered into a written agreement with MBI wherein t h i s corporation was granted the same exclusive right. A t the time of contracting Montana Public Employees Benefit Services Co., Inc. was not yet incorporated. Following incorpora- tion, that corporation's name was changed t o MBI. After the present s u i t was f i l e d , DOA entered into a third contract with MBI identical t o the previous contracts. The deferred compensation plan was prepared and offered by the corporation th the s t a t e , which adopted it. This plan had been approved a s a "nonqualified unfunded" plan by the Internal Revenue Service i n a private l e t t e r ruling. This ruling determined that income deferred by public employees under the plan was not includable i n the employee's gross income u n t i l actually received by the employee or h i s beneficiaries, provided s t a t e law permits implementation of the plan. Plaintiff challenges the deferred compensation plan adopted by the s t a t e on three grounds, which we are asked t o review on appeal : (1) Whether the 1974 legislation requires the s t a t e t o adopt and implement only a "qualifiedt funded deferred compensa- tion plan within the meaning of $401(a), Internal Revenue Code 1954, a s amended. (2) Whether the agreement between DOA and M B I i s void for lack of legal capacity by MBI t o contract. (3) Whether DOA has authority t o grant an exclusive con- t r a c t t o M B I . _The g i s t of the f i r s t issue i s whether the legislature i n using the words "qualified plan" and similar language meant a plan qualified for deferred income tax l i a b i l i t y or whether it referred to a qualified deferred compensation plan within the meaning of S401(a), Internal Revenue Cbde 1954. Plaint i f f argues that the words "qualified" and "non- qualified" are words of a r t with distinct meanings, when used within the context of the Internal Revenue Code. It argues the Montana legislature used the words "qualified plan" i n that sense i n the deferred compensation a c t t o provide adequate funding and security of employee contributions from diversion to other purposes. Therefore, it contends, the legislature meant a qualified plan under §401(a), Internal Revenue Code 1954 which insures adequate funding, security,and prevents diversion of funds t o other purposes. A t the outset we note the legislation i n question provides in pertinent part: "68-2701. Deferred compensation programs permitted. "The s t a t e * fc * may establish, a f t e r reaching agreement with any employee 9: 9 : ff a program for employees to defer any portion of that employeet s compensation up t o the maximum allowed by the Internal Revenue Code i n a plan qualified for exemption under applicable sections of the Internal Revenue Code." (Emphasis added.) I n subsequent sections reference i s made t o "any qualified plan1' (section 68-2702), t o "qualified plans" (section 68-2705), t o 11 any qualified private pension plans" (section 68-2706), and t o "a11 qualified deferred compensation plans" (section 68-2708). A cardinal principle of statutory construction i s that the intent of the legislature must f i r s t be determined from the plain meaning of the words used, and i f interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. Keller v. Smith, Mont . , 553 P.2d 1002, 33 St.Rep. 828; Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 660, and cases cited therein. Here the language of the act clearly indicates the term "qualified plan" means a plan qualifying for deferral of income taxation under federal laws. Section 68-2701 authorizes a de- ferred compensation program for public employees "in a plan qualified for exemption under applicable sections of the Internal Revenue Code." This language demonstrates the underlying purpose of the a c t -- tax saving by exemption under federal tax laws. The exemption i s not limited to a plan qualified under $401(a) of the Internal Revenue Code or any other specific section thereof. The act says a plan qualified for exemption "under applicable sections - of the Internal Revenue Code." It does not speak of "funded" o r "unfunded" plans, $401(a) plans, or use the technical jargon of the Internal Revenue Code. Where the language of a statute i s plain, unambiguous, direct and certain, the statute speaks for i t s e l f and there i s nothing l e f t for the court t o construe. Keller v. Smith, supra; Dunphy v. Anaconda Co., supra. Our function i s simply t o declare what i s contained i n the statute, and neither insert what has been omitted nor omit what has been inserted. Section 93-401-15, R.C.M. 1947; Clark v. Hensel Phelps Construction Co., Mont . 2 P.2d , 34 St.Rep.61; Hammill v. Young, - Mont . 9 540 P.2d 971, 32 St.Rep. 935. Accordingly, we will not construe the language of section 68-2701 - "in a plan qualified for exemption under applicable sections of the Internal Revenue Code" --- to mean only a 5 401(a) plan. Plaintiff argues the deferred compensation plan in question does not conform to Montana's statutory requirements because it is "unfunded" and does not provide the necessary security for . employee contributions. It is contended that a qualified, funded $401(a) plan provides such security, and the legislature intended to provide such security by using the term "qualified plan'' as words of art having a special meaning in the context of the Internal Revenue Code, specifically a $401(a) qualified and funded plan. Plaintiff asserts the deferred compensation plan in question does not qualify for exemption under $401(a) of the Internal Revenue Code and cites in support Buttrey Stores, Inc. v. United States, 375 F.2d 799, and Trebotich v. Commissioner of Internal Revenue, 492 F.2d 1 0 1 8 . We agree that the deferred compensation plan in question does not qualify for exemption under $401(a) of the Internal Revenue Code. A qualified plan under that section is a specialized, highly sophisticated, and complex income deferral plan utilizing the trust device to insure security and non-diversion of deferred income contributions. The merits of such a plan vis-a-vis the unfunded plan here is a policy determination to be resolved by the legislature and DOA. The legislature has not limited a - 6 - "qualified plan'' t o a §401(a) plan by the plain language of i t s enactment and DOA has approved the particular plan involved i n t h i s case. W e have considered the other arguments advanced by p l a i n t i f f on the f i r s t issue and find that none would change our holding, W e find it unnecessary t o go beyond the plain language of Montana's a c t , W e specifically hold t h i s language permits imple- mentation of the deferred compensation plan involved i n t h i s case. P l a i n t i f f ' s second issue argues t h a t the contract entered into between the s t a t e and M B f is void as M B I lacked legal capacity t o enter into such agreement. A t the time of the execution of the i n i t i a l contract between DOA and the predecessor of M B I on September 17, 1975, no c e r t i f i c a t e of incorporation had been issued t o the corporation. 21 days l a t e r on 0ctobe; 8, 1975, the corporation received i t s a r t i c l e s of incorporation. The company name was l a t e r changed to M B I a t the request of the secre- tary of s t a t e and a r t i c l e s of Xncorporation were issued i n that name on April 12, 1976. M B I was, i n effect, a defacto corporation a t the time the contract i n question was executed. Although it was defective i n i t s creation and not a de jure corporation, t h i s was the result of a bona fide attempt t o incorporate under the existing statutory authority, coupled with the exercise of corporate powers. A de facto corporation has the same capacity t o contract as a de jure corporation. Proof of a de facto corporate existence i s sufficient where the validity of a contract by a body of men claiming t o be a corporation i s i n issue i n a s u i t which i s between third persons. 8 Fletcher Cyc. Corp. (Perm.Ed.), Chap. 45, $3862, and cases cited therein. Plaintiff argues the contract was not merely voidable, but void ab initio as a result of the failure r . . to coniply- - . with the technical requirements of incorporation. We do not agree. The legal distinct ion between "void" and "voidable" contracts is defined in 1 Williston on Contracts, 3rd Ed., $15: "An agreement which produces no legal obligation is frequently called a 'void' contract. Though the phrase is often convenient, it is a contra- diction in terms. If an agreement is void it is not a contract. A voidable contract, however; is common in the law. Infancy, fraud, mistake, duress, some kinds of illegality, all afford ground for res- cinding or refusing to perform a contract. Unless rescinded, however, a voidable contract imposes on the parties the same obligations as if it were not voidable, The term is used to cover both cases where the person having the power of avoidance must promptly take action manifesting his election and cases where he need do nothing unless sued, and may then assert avoidance as a defense. Where a contract is voidable on both sides, as where both are infants or cheats, the trans- action is not wholly void, since in order to prevent the contract from having its normal operation the defense vust in some manner be asserted, and further- more, since the contract is capable of ratification, it affects from the outset the legal relations of the parties. 1 I In the instant case, the failure of the corporation possess articles of incorporation until 21 days after the execu- tion of the contract with the state does not constitute an illegal purpose which would void the agreement from its inception. On the contrary, this defect rendered the contract voidable at the state's option. The state not only has not taken any steps to void or rescind the contract, but in fact has ratified it. The third and final issue is whether DOA has authority to grant an exclusive contract to MBI. The record discloses that this issue was not researched, briefed, argued or raised before the district court. On appeal this Court will not review issues not presented to the trial court. Spencer v. Robertson, 151 Mont. 5 0 f , 445 P.2d 48; Clark v. Worrall, 146 Mont. 374, 406 P.2d 622; S t a t e Highway Commission v. Yost Farm Company, 142 Mont.239, 384 P.2d 277. The summary judgment of the d i s t r i c t court i s affirmed. J u s t i c e W e Concur: /'

April 29, 1977

7f3a78bc-0638-458f-8770-9dd3d32c8867

J S HOME REALTY INC v ANACOND

N/A

13356

Montana

Montana Supreme Court

No. 13356 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 J & S HOME REALTY, INC., a Montana Corporation, Plaintiff and Appellant, THE ANACONDA COMPANY, A Montana Corporation, Defendant and Respondent. Appeal from: District Court of the Fourth Judicial District, Honorable Edward T. Dussault, Judge presiding. Counsel of Record: For Appellant: Boone, Karlberg and Haddon, Missoula, Montana Wm. T. Boone argued and Sam E. Haddon argued, Missoula, Montana For Respondent : Garlington, Lohn and Robinson, Missoula, Montana Robert E. Sheridan, Jr. argued, Missoula, Montana Submitted: March 2, 1977 Filed: f i p ~ 2 7 IC-~-/ . - . Plr. Jus c l c e o h i l "or~way Harrisoil Jelivered the Opinion of the Court. P l a i n t i f f appeals from a judgment entered by the d i s t r i c t court, Missoula County, s i t t i n g without a jury, i n a breach of contract action. L i a b i l i t y and damages were separated f o r t r i a l . I n March 1971, J & S Home Realty, Inc. (J & S) entered i n t o a contract with The Anaconda Company (Anaconda) t o a c t a s the d i s t r i b u t o r of prefabricated homes manufactured by Anaconda Forest Products, a division of the Anaconda Company. B y the terms of t h i s contract J & S was t o be the sole d i s t r i b u t o r of these homes i n Montana. For t h i s privilege J & S was t o pay a franchise fee and receive a specified percentage commission on each s a l e . I n May 1972 Anaconda sent a notice which conformed t o the procedure s e t out i n the contract termination provision informing J & S t h a t Anaconda was terminating the franchise. O n June 26, 1972, following s i x months of negotiations, Anaconda sold the a s s e t s of i t s division, Anaconda Forest Products, including the prefab- ricated home building plant t o Champion International Corporation f o r i t s U.S. Plywood Division. It i s conceded the termination was an adjunct t o the s a l e of these assets. A l l p a r t i e s agree (1) Anaconda Forest Products was a p r o f i t a b l e division of Anaconda and t h a t these a s s e t s were sold f o r a sound business reason t o improve Anaconda's cash position, (2) t h a t a t the time Anaconda entered i n t o the franchise agreement with J & S the s a l e of those a s s e t s was not contemplated, and (3) t h a t the termination provision i n the franchise contract was a subject of bargaining. The original draft of the provision allowed termination - . "with or without cause" while the final provision reads in pertinent part: i it her party may cancel or terminate this agreement with cause, including any breach of the provisions of this agreement Jc * *." Berton N. Schultz, Jr. of J & S, testified that during negotia- tions with Anaconda the reason for the change of language was: ! ' A . Well, it was going to be our responsibility to set up other distributors and to hire people. And at that time we felt that we were not willing to enter into a contract with Anaconda if such a contract could be canceled in 30 days by either party at their own will . " As a result of entering into the contract, J & S hired additional people and made changes in their company which entailed substantial dollar investments. This case is not one where the distributor of the product had all the bargaining power and the provisions of the contract favor the distributor. Here, the language of the contract on its face excludes termination at the subjective will of the parties. The phrase "cause, including any breach of the provisions of this agreement" indicates that "cause" was meant to be broader than legal cause alone. Care should be taken that there is no confusion on this matter -- Anaconda always had the power to terminate the contract but it would, of course, have to pay damages. Here, the question is whether there was "cause" for termination which would allow the ending of the relationship pursuant to the contract provision and thus not have to pay damages. The sole issue presented for this Court's review is whether Anaconda's going out of the building materials business, in good I I faith for business reasons, is cause" as the term was used in the contract l The question is difficult and arises in a number of contexts, but the controlling issue is what the parties meant at the time of entering the contract by the words "with cause". Applying Montana's rules of construction,the parties certainly did not mean the contract could be terminated at will to the advantage of the corporation. Anaconda sold the assets rather than the cor- poration and conveniently disposed of the rights of J & S. Anaconda's prior franchises were terminable "with or without cause" but in the instant case the parties bargained to a different agreement. To hold otherwise is to allow termination at will, requiring only a good faith subjective reason for termina- tion, and termination at will was excluded by the contract language. Here, it is clear that termination was not for some failure on the part of J & S . In fact the termination notice states: 11 We certainly have enjoyed our relationship with you and your organization and are very sorry that this relationship has to be terminated." The only cause alleged by Anaconda as the basis for termination was that the sale of the assets made performance impossible. However, the sale of assets took place after the termination. The termination was an adjunct to the sale and not because sale had made performance impossible. IJhile it is undisputed that Anaconda had a sound good faith reason to sell its forest products assets, there was no condition forcing termination, the division was still profitable and able to get materials. If Anaconda could no longer get the materials it needed from its timber lands because of government regulation, or if a long term downturn in the economy destroyed the profit of the building materials division, then there might exist condi- tions forcing termination emanating from outside Anaconda's control which would c o n s t i t u t e "cause". I n P a r s i l v. Emery, 272 N.Y.S. 439, 440; an argument similar t o Anaconda's was rejected: "* * * The claim of defendant t h a t he i s excused from performance under the contract 'because performance has been made impossible by destruction of the subject matter thereof' i s predicated upon the a l l e g a t i o n t h a t the employer was dissolved a s a corporation. The answer t o t h i s , i n our opinion, i s t h a t t h i s dissolution was nothing more than a voluntary s a l e of the corporate a s s e t s t o another corporation engaged i n l i k e business. The case might be otherwise had the dissolution been effected by the Attorney General; i n other words, an involuntary dissolution * * *." Several cases c i t e d by J & S a r e of import here. I n Buono . - i i - . - . D I D Sdles Inc. v. ~ h r y s l e r Motors Corporation, 363 F.2d 43,44,49, a d i s t r i b u t o r who had a contract t o s e l l DeSoto and Plymouth automobiles was terminated by the corporation's decision t o discontinue t h e DeSoto. The court noted t h a t from the contract i t s e l f the very thought t h a t Chrysler might sometime abandon the DeSoto was not within i t s contemplation a t the time the contract was entered i n t o with i t s dealers; t h a t had the corporation contemplated such action it could e a s i l y have so provided i n the contract. Further t h a t i n a l l such dealings of the corporation with dealer franchises the corporation i s the dominating party. The court noted: "* * * Deceiving i t s dealers from the beginning a s t o what would have been an a l l important element of the agreement, hardly f i t s t h a t s i t u a t i o n o r indeed i n t o the basic picture of an outstanding American industry. A s appears from the record t h i s matter a r i s e s wholly from a r a d i c a l corporate determination, f o r whatever the reason, t o cut i t s production losses on DeSoto immediately. The inevitable c o l l a t e r a l consequences of t h a t move, the damage claims of i t s dealers, e t c . , i f then bothered about Z i t a l l , undoubtedly were regarded a s the l e s s e r e v i l which could be handled l a t e r . "The contract before us i s clear. Its unmistakable i n t e n t i s t o protect Chrysler a s t o i t s dealers i n every foreseen contingency. It does not by i t s terms o r impliedly give Chrysler the naked r i g h t t o discontinue without contract cduse, ,nanuiacturing a i d d i s t r lbutiz~g t o i t s dealers !JeSoto dutomobiles. I n so doing Chrysler broke the zontract. 11 W e find the reasoning found i n Buono Sales Inc. applicable t o the instant case. I n two N e w York cases cited by J & S , Noah v. Daitch & Co., 192 N.Y.S.2d 380 and Cycleway, Inc. v. Kawasaki Motors Corp. 354 N.Y.S.2d 812, the courts upheld a s reasonable termination clauses where the number of days notice of termination was s t a t e d and agreed upon by the p a r t i e s t o the contract. Here we have the s a l e of the a s s e t s which i s not cause i n the sense of an outside condition forcing termination, unless one accepts the subjective reason that the s a l e would be more profitable if the contract could be terminated a t no cost t o Anaconda. W e find the d i s t r i c t court erred i n i-ts conclusion of law No. 3 , which s t a t e s : "That the s a l e of Defendant's f o r e s t products division, including the m i l l , timberlands, house plant and r e l a t e d a s s e t s and equipment and the r e s u l t a n t cessation of a l l operations r e l a t i n g thereto, was s u f f i c i e n t cause f o r the cerrnination of i t s franchise agreement with the P l a i n t i f f . " Che decision of the d i s t r i c t court i s reversed and the cause ' . a remanded f o r a hearing on damages. J u s t i c e i We Concur: Chief Justice

April 27, 1977

34b9b4a3-848f-48ee-859c-80c6e24c1a53

BRURUD v JUDGE MOV STOR CO

N/A

13498

Montana

Montana Supreme Court

No. 13498 I N T H E S U P R E M E COURT O F T H E STATE OF MONTANA 197 7 WILLARD BRURUD, Claimant and Respondent, JUDGE MOVING & S T O R A G E CO., INC., Employer and TRANSPORTATION INSURANCE C O M P A N Y , Insurer and Appellant. Appeal from: Worker's Comp Court, Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant: J a r d i n e , Stephenson, B l e w e t t & Weaver, G r e a t F a l l s , Montana H. Dale Schwanke argued, Great F a l l s , Montana For Respondent : Hoyt and Bottomly, Great F a l l s , Montana John C. Hoyt argued, Great F a l l s , Montana - - Submitted: March 15, 1977 F i l e d : TbPLnL >- . c & d Clerk Honorable Peter G. Meloy, District Judge, sitting in place of Mr. Chief Justice Paul G. Hatfield, delivered the Opinion of the Court. Respondent was injured in an industrial accident and filed a claim for compensation with the Montana Workers' Compensation Division. Thereafter, a dispute arose between respondent and appellants concerning the nature and extent of respondent's resulting disability. A hearing was held before a division hearing examiner on July 25, 1974. On November 26, 1974, an order awarding compensation was entered by the admin- istrator of the division, which order awarded respondent perma- nent total disability benefits and a lump sum advance of $7,500. The order was duly appealed and the award affirmed by the Workers' Compensation Court, by order dated May 25, 1976. This appeal is taken therefrom. The Workers' Compensation Court's review of the Workers' Compensation Division is limited by section 82-4216, R.C.M. 1947. That section admonishes the review court that it: " * * * shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. * * * The Court may reverse or modify the decision if substan- tial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are: "(a) in violation of constitutional or statutory provisions; "(b) in excess of the statutory authority of the agency; "(c) made upon unlawful procedure; "(d) affected by other error of law; "(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; "(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exer- cise of discretion; or "(g) because findings of fact, upon issues essen- tial to the decision, were not made although requested." Montana has adopted the "clearly erroneous" test and while no Montana cases have defined the term it appears that the citation of petitioner in the case of United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L ed 746, 766, is a proper definition. Therein it stated: "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." The appellants contend the Workers1 Compensation Court erred in affirming the Workers' Compensation Division in the follow- ing particulars: (1) The evidence before the Division was insufficient to support a finding of permanent total disability. (2) The Division could not consider the medical reports in the Workers1 Compensation file. (3) The Workers1 Compensation Court erred in not allow- ing appellant insurance company to present additional evidence. (4) The Division had no authority to order an advance to the workman. We will discuss these issues within the limitations of section 82-4216. (1) It is true that the only evidence brought out at the hearing as to the nature and extent of respondent's disabil- ity was the testimony of the respondent himself. This testimony brought out that respondent, who was age 58 at the time of the injury and reached age 62 on January 13, 1977, had an entire adult work history of heavy labor. He has a high school educa- tion and has since worked about 25 years as a meat cutter and about 15 years as a laborer in the moving and storage business. There was no medical testimony presented at the hearing. According to the memorandum accompanying the Division's findings of fact and conclusions of law, both sides seemed satisfied to rely on the medical reports, one submitted by Dr. Popnoe, the treating physician, the other by Dr. Forbeck, who examined the claimant, apparently at the request of defendant insurance carrier. Dr. Popnoe wrote on April 10, 1974 in a report addressed to the agent of appellant: "I feel that he is too old for fusion. He is not trained in any type of work other than heavy work. He conceivably might do very light work not requiring any heavy lifting, pushing or pulling, possibly as a watchman or something similar. It is my feeling that his permanent partial disability considering all things should be approximately 60-70%." Dr. Forbeck wrote on June 5, 1974 in a report addressed to the appellant with a copy to an agent of appellant: " * * * It is hoped that with the passage of time and perhaps a continuation of conservative measures of therapy, his present difficulty will gradually improve, but probably his prognosis in this regard is rather poor. Under present cir- cumstances, I feel that a disability rating of sixty to seventy-five percent would be fair." Appellants could have presented any medical evidence of their own at the hearing and did not. Based upon what the hearing examiner had at his disposal, the contents of the Divi- sion file, the record of the hearing, the medical reports, the age, education and experience of respondent, he had sufficient evidence to support his finding of fact No. 11 that respondent was permanently totally disabled as defined in section 92-441, R.C.M. 1947. Appellants next contend that before the Division could conclude that respondent was entitled to permanent total dis- ability benefits, a finding must be made that he made a reason- able effort to find regular employment but that no reasonable prospect existed. Appellants therefore contend that the Divi- sions findings of fact do not support its conclusions of law and its order awarding compensation. Nowhere in section 92-441,which defines permanent total disability, does it require such a finding. The statute does require that he have no reasonable prospect of finding regular employment of any kind in the normal labor market; but it does not set out that he must have made a reasonable effort to secure such employment. In some cases, this Court can fore- see the futility of such an effort. In this case, the Division in its finding of fact No. 11, clearly saw such a situation. In view of the medical reports, the record of the hearings, and the age, education and work experience of respondent, the Division found no reasonable prospect of respondent finding regular employment in the labor market and because of that found him to be permanently totally disabled. This finding clearly supports the Division's conclusion of law and order awarding compensation. (2) The medical reports were unsworn and were not offered in evidence. Appellants contend that for the Division to have considered these reports denied appellants their right to cross-examine the preparers and to rebut the evidence con- tained therein. The contents of the reports in question, one by Dr. Popnoe, the treating physician, and one by Dr. Forbeck, who apparently examined claimant at the request of the insurance carrier, were known by both parties and were a part of the Division's file in this case. At the hearing the reports and their contents were discussed in part but apparently were not entered into evidence. No other medical evidence was produced at the hearing. The hearing examiner had been given to under- stand that "both sides seemed satisfied to rely on the two medical reports". This was stated in the memorandum accompany- ing the order awarding compensation. It was not a reversible abuse of discretion for the Division to consider the contents of reports which were a part of its file in the case, the contents of both which were known to the parties at the time of the hearing, and which reports were discussed at the hearing and not challenged, objected to or rebutted in any manner at the hearing. (3) Appellants contend that the Division erred by deny- ing them leave to present additional evidence pertinent to the award of permanent total disability benefits. The additional evidence concerned respondent's disability as well as evidence concerning the retroactive Social Security disability benefits received by respondent. The statute applicable to such an attempt to present additional evidence is section 82-4216 (5), R.C.M. 1947. That section requires a showing sufficient to satisfy the Court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency. The court of review was not satisfied with either the materiality or the additional evidence of the reason for failure to present it earlier. This Court will not substitute its discretion for that of the court of re- view. (4) Appellant contends that the Workers' Compensation Court erred in affirming the order awarding compensation to the extent it awarded respondent a $7,500 lump sum advance. They contend, first, that the Division lacked jurisdiction to order payment of any advance and, second, that the evidence did not support the amount of the advance in any event. Section 92- 715, R.C.M. 1947, which authorizes the conversion of biweekly payments to a lump sum settlement in certain instances, provides in part: "Such conversion can only be made upon the written application of the injured worker * * *." Since respondent did not apply in writing, appellants contend the Division lacked jurisdiction to grant the lump sum advance. It should be understood however, that the award was an "advance" as distinguished from a "lump sum settlement" wherein there is a calculation of the present worth of the deferred payments. Section 92-715 is not applicable to a "lump sum advance." Under the circumstances here the Division did not abuse its discretion in ordering the advance. Compare Sullivan v. Anselmo Mining Corp., 82 Mont. 543, 268 P. 495. Appellants further contend that even if the Division did have jurisdiction to grant the lump sum advance, that the evidence did not support an advance in the amount of $7,500 which the Division granted. The burden, they claim, is clearly on respondent to justify the conversion and the amount thereof. This burden, according to appellants, was not met. At the hear- ing, respondent testified to debts of "around $6,000.00" but he was not certain to whom they were owed or in what amounts. At a later date, a list of amounts owed and to whom owed was provided. This list was unsworn and totalled $7,211. Appellants claim this unsworn list certainly does not justify the lump sum award of $7,500. The Division, in finding of fact No. 16, found that the contents of the file and record reveal that by a preponderance of the evidence, a lump sum advance to be applied against his final award would be in the best interest of respondent and 4 the public. See ~aukait&s v. Sisters of Charity, 135 Mont. 469, 342 P.2d 752. In finding of fact No. 12 the Division found respondent testified at the hearing that his accumulated obli- gations had become an impossible burden upon him and that he could not meet his financial obligations, p a s f : a.nd current, with the amount he received in Workers' Compensation benefits. In finding of fact No. 17, it found that the outstanding in- debtedness of respondent was in the amount of $7,214, which amount does not include fees owed to his attorney. The Division therefore concluded in conclusion of law No. 3 to award claimant a lump sum advance in the amount of $7,500. This Court does find the evidence sufficient to justify the award of $7,500. The findings of the Division are not clearly erroneous under section 82-4216, R.C.M. 1947. The order of the Workers' mpensati Court is affirmed. --- ---------------- on. Peter G. Me oy, strict Judge, sitting in plac r. Chief Jus- tice Paul G. Ha .' /J We concrir: , "

April 20, 1977

116a75f3-4094-4d64-9af3-76a2f83415ed

MILLER v MELANEY

N/A

13411

Montana

Montana Supreme Court

No. 13411 IN THE SUPREME COURT OF THE STATE OF MONTANA GEORGE C. MILLER, d/b/a CENTRAL PLUMBING AND HEATING, Plaintiff and Appellant, CHARLES W. MELANEY and MARY GLADYS MELANEY, husband and wife, and DEL HOSTETTER, Defendants and Respondents. Appeal from: District Court of the Eighteenth Judicial District Honorable W. W. Lessley, Judge presiding. Counsel of Record : For Appellant: Bolinger and Wellcome, Bozeman, Montana Page Wellcome argued, Bozeman, Montana For Respondents : Thomas I. Sabo, Bozeman, Montana Landoe, Gary and Planalp, Bozeman, Montana Robert Planalp argued, Bozeman, Montana Submitted: January 10, 1977 Filed: ,,dK 377 M r . Jusrice Gene B. Daly delivered the Opinion of the Court. This appeal involves a subcontractor's attempt t o foreclose a mechanic's l i e n against homeowners and a general contractor. The d i s t r i c t court, Gallatin County, declined t o foreclose t h e mechanic's l i e n and ruled i n favor of a l l defendants. The sub- contractor, George C. Miller, d/b/a Central Plumbing and Heating, appeals. O n June 3 , 1974, the general contractor Del Hostetter entered i n t o a contract with homeowners Charles W. Melaney and Mary Gladys Melaney t o construct an addition t o t h e i r home. The t o t a l contract price f o r the work was $22,600. The contract provided f o r compensation t o the contractor i n periodic payments, upon completion of specific segments of t h e work. The f i n a l payment was due upon completion of t h e addition and the contractor's delivery of l i e n waivers t o the homeowners. Miller accepted a subcontract t o i n s t a l l t h e heating system pursuant t o the general contractor's specifications which included t h e s i z e and location of duct work and furnace. The contract price was $925.00. Homeowners tendered a l l payments under the contract, when due, u n t i l the payment f o r $1,520 which was t o be paid a f t e r t h e i n s t a l l a t i o n of the heating system. Homeowners refused t o make t h i s payment because of alleged insufficiency of the heating system. Following refusal of payment, the contractor withdrew from the job and the subcontractor was denied admission t o the s i t e . The subcontractor has never received payment f o r work per- formed on the addition. Thereafter homeowners contacted an architect who re- designed the heating system by replacing a substantial portion of the existing duct work with a larger diameter duct and insulating the duct system. A supplemental furnace was installed in the garage to heat those portions of the house farthest from the furnace which was initially installed by the subcontractor. Home- owners paid $1,542.60 for these modifications to the heating system. The subcontractor brought an action inpthe district court to foreclose his timely filed mechanic's lien. The district court denied the subcontractor foreclosure on the mechanic's lien and awarded homeowners a personal judgment against the subcontractor on their counterclaim for defective workmanship, holding the gross amount of damages incurred by homeowners exceeded the cost of the subcontractor's work by $757.08. The district court awarded home- owners attorney fees and costs incurred in defending the lien foreclosure action. The district court further held the general contractor was entitled to judgment in his favor, thus denying the subcontractor any recovery from the contractor. These issues are presented for this Court's review: 1 ) Allowing homeowners to recover a personal judgment against the subcontractor, lien claimant, by means of a counter- claim. 2) The judgment in favor of the general contractor thus allowing general contractor to avoid liability to the subcontractor. Issue 1 . The subcontractor contends that a personal judgment can only be based upon the privity of a contractual re- lationship between the homeowner and the subcontractor. Since no contract was executed between homeowners and the subcontractor in the instant case, the subcontractor argues no privity of con- tract was established for purposes of rendering a personal judgment. This Court fails to find merit in this contention. The correcc law is stated at 53 Am Jur 2d, Mechanics' Liens, $391: "In an action by a contractor or other claimant to enforce a mechanic's lien, the owner may avail him- self of all matters allowable by way of cross bill, cross complaint, recoupment, setoff, or counterclaim which arise out of the contract between the owner and the contractor, and which are available against the contractor or other claimant. He may maintain a cross bill, cross complaint, or counterclaim to recover damages sustained by the failure to perform the work according to the contract, or to recover damages connected with the construction, such as for defects or delay, damages for fraud, or damages from a materialman's inducing him to enter into a contract with a bankrupt contractor who did not complete his contract. * * *I' See: Monarch Lumber Co. v. Wallace, 132 Mont. 163, 314 The subcontractor cites the Montana case, Frank J. Trunk & Son, Inc. v. DeHaan, 143 Mont. 442, 391 P.2d 353, and a California case, R. D. Reeder Lathing Co. v. Allen, 57 Cal.Rptr. 841, 425 P.2d 785, to support his position. Trunk, like the instant case, concerned a subcontractor's attempt to foreclose a mechanic's H e n against homeowners who benefited from the subcontractor's work. The district court denied the subcontractor recovery under the mechanic's lien because of invalid filing of the lien. The subcontractor contended the district court should have entered personal judgments against the homeownersand the contractor notwithstanding the invalidity of Court the lien. The district court found, and this/affirmed, that a personal judgment against the homeowners could not arise since such a judgment could only be grounded upon privity of contract between the subcontractor and the homeowners. Absent the sub- contractor's privity of contract with the homeowners, the only basis upon which a judgment against the homeowners could be pre- dicated, i.e., the lien, was lost by failure to perfect it. The c r i t i c a l distinction between Trunk and the instant case is the availability of remedies. I n Trunk the subcontractor was denied a personal judgment against the homeownersbecause h i s remedy was the mechanic's l i e n which he failed to perfect. Had the subcontractor perfected h i s lien, he would have been allowed to recover even though no contract existed between the l i e n claimant and the homeowner. The subcontractor need only establish a con- t r a c t , express or implied, between the homeowner and the prime contractor. The rationale behind t h i s rule i s that by virtue of the contract between the prime contractor and homeowner, an implied agency i s created between the two, giving the contractor the authority t o contract with subcontractors and materialmen for performance and supplying of materials. Glacier State Electric Supply Company v. Hoyt, 152 Mont. 415, 451 P.2d 90. Similarly, the homeowner i s vested with certain remedies when he faces a l i e n foreclosure action brought by a subcontractor, as specifically s e t out heretofore i n 53 Am Jur 2d, Mechanics' Liens, 6391, which includes the remedy of counterclaim here. The purpose of mechanic's lien legislation i s not t o s t r i p the homeowner of recourse for frivolous l i e n foreclostsre actions, but t o allow the l i e n claimant a remedy where no privity of contract exists between the lien claimant and the property owner. In R.D. Reeder Lathing Co. v. Allen, 57 Cal.Rptr."altl, 425 P.2d 785, 788, the California court stated: ""'While the essential purpose of the mechanic's l i e n statutes i s t o protect those who have performed labor o r furnished material towards the improvement of the property of another, * * * inherent i n t h i s concept i s a recogni- tion also of the rights of the owner of the benefited property. It has been stated that the l i e n laws a r e for the protection of property owners a s well a s l i e n claimants. * * *""I Reeder, Like Trunk, involved a subcontractor who sought t o foreclose a mechanic's l i e n t o impress the improved property. The lower court granted the subcontractor's motion f o r summary judgment and decreed t h a t defendant was personally l i a b l e t o the subcontractor f o r t h e value of the labor and materials supplied. The Supreme Court found the provision of the lower court judgment which held the defendant personally l i a b l e t o the p l a i n t i f f was erroneous. A s i n Trunk, the Supreme Court of California. held that i n the absence of a contract between a l i e n claimant and the property owner, the r i g h t t o enforce a mechanic's l i e n against r e a l property does not give r i s e t o personal l i a b i l i t y of t h e owner. The r u l e denying a l i e n claimant a personal judgment against a property owner i n a l i e n foreclosure action, where p r i v i t y of contract i s absent, cannot be conversely applied t o deny a property owner a personal judgment against a l i e n claimant f o r damages a t t r i b u t a b l e t o the l i e n claimant and a r i s i n g out of the contract between the property owner and the prime contractor. Issue 2. The contention the d i s t r i c t court erred when - it concluded t h e general contractor owed nothing t o the subcon- t r a c t o r and was e n t i t l e d t o a judgment i s correct. The record of the proceedings i n the d i s t r i c t court d i s - closes the subcontractor constructed the heating system i n com- pliance with c e r t a i n specifications provided by the general con- t r a c t o r , e.g., the s i z e of the furnace, the location of the furnace and the location of a i r ducts. Inherent i n the d i s t r i c t c o u r t ' s award of damages t o the homeowners i s a determination t h a t the heating system, a s o r i g i n a l l y designed, was inadequate. L i a b i l i t y i n regard t o damages f o r deficiency i n design applied t o the contractor, not the subcontractor. The district court erred when it entered judgment for the general contractor and denied the subcontractor his right to indemnification. The district court must determine the con- tractor's liability for damages based upon the effect of the contractor's deficient design specifications which the subcontractor was compelled to use in performing under the contract. The judgment of the district court is affirmed in part, reversed in part and remanded for modification not inconsistent with this opinion. ustice We Concur: ~ & L e f Justice -

March 2, 1977

5e962d1f-162f-4161-b621-cfb966a17ef0

Joki v. McBride

436 P.2d 78

11360

Montana

Montana Supreme Court

436 P.2d 78 (1967) Matt E. JOKI, Plaintiff and Respondent, v. H. E. McBRIDE, Defendant and Appellant. No. 11360. Supreme Court of Montana. Submitted October 16, 1967. Decided December 28, 1967. Anderson, Symmes, Forbes, Peete &amp; Brown, Weymouth Symmes (argued), Billings, for appellant. J. H. McAlear (argued), Red Lodge, Robert H. Wilson (argued), Hardin, for respondent. *79 HASWELL, Justice. This is an appeal by defendant from a judgment entered against him in the sum of $12,375 in the district court of Carbon County based upon a jury verdict. The case is an action for personal injuries resulting from a fall from a scaffold. Plaintiff in the action is Matt E. Joki, a workman engaged as a carpenter's helper in connection with building an additional room on a cabin located on the west fork of Rock Creek in Custer National forest some thirteen miles from Red Lodge in Carbon county; he will hereafter be referred to as Joki. Defendant in the action is H.E. McBride, the owner of the cabin, who will hereafter be referred to as McBride. The other person involved herein, although not a party to this suit, is Roy Linn, who was engaged by McBride as a carpenter to build the additional room on McBride's cabin, and who will hereafter be referred to as Linn. The accident forming the basis of this suit occurred about 2:00 p.m. on July 16, 1966. Joki and Linn had been engaged in the building of the addition to McBride's cabin since some time in June, 1966. Several days prior to the accident they had constructed a scaffold on the east side of the addition when work had progressed to the point where scaffolding was required to put the rafters in place which would support the roof. This east scaffold was constructed entirely out of materials belonging to Linn. Linn placed his two scaffold jacks at the east end of the addition and on top of these a walkway was laid approximately 22 inches wide consisting of one 2 × 10 and one 2 × 12 laid side by side and extending generally across the east side of the addition. A day or two prior to the accident, work had progressed to the point where scaffolding was required to provide access to the roof being constructed. This second scaffold was constructed by Linn and Joki out of materials supplied by McBride for general construction purposes. This scaffold was constructed on the north side of the addition being built in the following manner: Two stringers were set up perpendicular to the ground at each end of the addition on the north side and a cross piece was nailed to each stringer and attached to the outside wall. The stringers were cross-braced by two 1 x 10's extending from the base of each stringer at the ground diagonally upward and across to the opposite stringer. A walkway consisting of two 1 x 12's, one on top of the other and two 1 x 10's, one on top of the other was placed on top of the cross pieces and thus a walkway was formed 22 inches wide and 2 inches thick extending generally across the north side of the addition. The upright stringers extended some distance upward from the base of the walkway. Because the walkways on both the north scaffold and the east scaffold were no longer than the north and east sides of the addition respectively, there was a 90 degree gap between the two walkways at the northeast corner of the addition. Additionally the walkway on the north scaffold was 8 to 10 inches higher than the walkway on the east scaffold. A peeled log serving as a rafter and running from the ridge pole downward to form the end of the eave had not been nailed in place and jutted out about one foot in the general area of the northeast corner of the addition. Access to the ground from the east scaffold was provided by climbing down the scaffold jacks at either end by means of rungs constructed of one inch lumber nailed across the scaffold jacks at convenient intervals. To get to the ground from the north scaffold it was necessary to climb down through a hole which had been cut in the wall for a window. It is to be noted that McBride, the owner of the cabin, played no part in the construction of either scaffold. Immediately prior to the accident Joki had been working on the north scaffold filling in the space between the rafters to bring them up level with the sheeting. He found it necessary to go down to the ground for another piece of material, walked eastward *80 along the walkway of the north scaffold, stepped across the protruding peeled log serving as a rafter near the northeast corner of the addition and onto the walkway of the east scaffold some 8 to 10 inches below, somehow lost his balance, grabbed the rafter which had not been nailed into position which gave way, and fell to the ground sustaining injuries to his back and shoulders. It is unclear from the testimony just what caused Joki to lose his balance. There are conflicts in the evidence as to just how far along the walkway on the north scaffold he had progressed when he fell, but it is undisputed that he was entirely on the walkway of the east scaffold when he lost his balance. It is likewise undisputed that no part of either scaffold broke, gave way, or collapsed. Joki's claim in this case is bottomed on his contention that McBride, the owner of the cabin and the one for whom the addition was being built, violated the Montana Scaffold Act. Joki contends that he was required to work on a scaffold that was unsafe in that (1) there was a 90 degree gap between the two scaffolds at the northeast corner of the addition being constructed, and (2) that the walkway on the north scaffold was 8 to 10 inches higher than the walkway on the east scaffold. Joki contends that because of these violations of the Scaffold Act he lost his balance in going from one to the other, fell to the ground, and suffered the injuries of which he complains. McBride, on the other hand, denies any violation of the Scaffold Act, contends that Joki was not an employee of his but of Linn, an independent contractor, and additionally claimed contributory negligence and assumption of risk on Joki's part. The defenses of contributory negligence and assumption of risk were stricken by the trial judge on motion of Joki's attorney at the opening of the trial, apparently on the basis that these defenses are unavailable in a Scaffold Act case. Trial was had before a jury on this basis and at the conclusion of plaintiff's case in chief defendant made several motions in the alternative: (1) to dismiss the complaint on the grounds of failure of proof in that there was no showing of any defect in the scaffolding proximately causing the accident; (2) to dismiss the complaint on the ground that McBride even under the Scaffold Act owed no duty to Joki which was breached; (3) to dismiss the complaint on the ground that if there was any breach of duty under the Scaffold Act, it was the breach of Linn and not McBride; (4) for a directed verdict on the grounds stated in (1) above; and (5) a motion to reinstate the defenses of contributory negligence and assumption of risk. All motions were denied. Upon settlement of jury instructions, the court gave the following instruction proposed by plaintiff and objected to by defendant, as Court's Instruction No. 6: "It is admitted that the defendant, H.E. McBride, was the owner of the building under construction, and that the plaintiff, Matt E. Joki, was employed to work thereon. If you find that the plaintiff fell from a scaffold while engaged in his employment and was injured thereby then you are further instructed that insofar as scaffolds are concerned, the laws of the State provide that all scaffolds erected in the State for use in the erection, repair, alteration or removal of buildings shall be well and safely supported, and sufficient width, and properly secured, so as to insure the safety of persons working thereon and passing thereunder, or by the same, and to prevent the falling thereof, or of any material that may be used, placed, or deposited thereon. "Under the statute then relating to scaffolds, it was the duty of the defendant, McBride, to provide, or to have provided, scaffolding in the construction of his building in compliance with the statute as to insure the safety of the plaintiff in working thereon. This was an absolute duty and one which McBride could not delegate to others. *81 "If you find then that the scaffold provided for plaintiff's use did not comply with the requirements of the statute, then your verdict must be for plaintiff, but only if the additional element exists that the defective scaffold was the proximate cause of plaintiff's falling therefrom and his injuries sustained, if any, resulting from the fall. "It is your province to determine the matter of proximate causation. However, you may not consider whether or not the plaintiff was contributorily negligent, or whether or not he assumed the risks of his employment, or was injured by the negligence of a fellow worker." The jury returned a verdict for Joki against McBride. McBride's appeal followed from the judgment entered on that verdict. The basic issues presented for review can be summarized in this manner: (1) Does the decision of this court in Pollard v. Todd, 148 Mont. 171, 418 P.2d 869, impose liability on McBride under the facts of the instant case? (2) Was error committed by the district court in giving its instruction No. 6? and (3) Did the district court err in striking the defenses of contributory negligence and assumption of risk at the beginning of the trial? A secondary issue included in the first issue set forth above is whether or not the defendant's motion for dismissal and directed verdict made at the conclusion of plaintiff's case in chief should have been granted. All these issues set forth above which are to be reviewed upon this appeal are interrelated and can be answered by determination of the proper construction of the Montana Scaffold Act (section 69-1401, et seq., R.C.M. 1947), including the construction placed upon this Act by the decision of this court in Pollard v. Todd, 148 Mont. 171, 418 P.2d 869. The Scaffold Act provides in part as follows: "All scaffolds erected * * * for use in the erection, repair, alteration * * * of buildings shall be well and safely supported, and sufficient width, and properly secured, so as to insure the safety of persons working thereon. * * *" Section 69-1401, R.C.M. 1947. The leading and only case in Montana involving the Scaffold Act is the decision of this court in Pollard v. Todd, supra. Pollard affirmed a verdict in favor of a carpenter's helper, who, while working on a scaffold nailing strips of tin around a door on a building being constructed, fell 12 feet to the ground when the plank on which he was standing suddenly broke without warning. The basis of liability in Pollard was violation of the Scaffold Act constituting negligence per se proximately causing the injuries to the workman. Mr. Justice Castles, speaking for a unanimous court, construed the Scaffold Act in this language found at page 179 of 148 Mont., at page 873 of 418 P.2d: "We hold that the purpose of section 69-1401 is to supplement the protection of the common law by providing criminal sanctions and imposing an absolute statutory duty upon the owners of real estate to protect workmen and others from the extraordinary hazards associated with scaffolds The mandatory nature of the statute forecloses the common-law defenses of assumption of the risk, contributory negligence, and negligence of a fellow servant. We have not decided that liability becomes fixed upon the showing of a scaffold-associated injury. A defendant may escape liability upon proof that there was no violation of statute or that the violation was not the proximate cause of the injury. While we recognize that there has been confusion over the effect of the `Scaffold Act' on common-law defenses and over the meaning of certain words in the various acts, there is general support for our construction of this act. [Citing cases.]" We have no quarrel with this construction of the Scaffold Act. However, in the instant case, unlike the Pollard case, there is no evidence whatever that either scaffold was not "well and safely supported, and sufficient width, and *82 properly secured" as required by the Act. Each scaffold was structurally sound; neither scaffold broke, collapsed, swayed or gave way; both were safe for the purpose for which they were built to provide a platform where a man could work on the roof. It was only when Joki used the scaffolds for a purpose for which they were not intended that he was injured. The following testimony of Linn, a witness for Joki, was given on direct examination by Joki's attorney: "Q. Now going back here briefly to the scaffolding Mr. Linn, could you tell us again what the purpose of the scaffolding was? A. It was to build it up so we could work on the roof up here, for putting in the rafters and putting on the sheeting and the roofing. "Q. And was it built with the intention of working from one scaffold to the other? A. No. "Q. Back and forth and with the roof? A. No." The length of the platforms or walkways, their height in relation to each other, and the fact that they were built at different times to facilitate different phases of the work furnish additional evidence that neither scaffold was erected to provide access to the other. Thus, the instant case, unlike the Pollard case, presents the situation where there is a structurally sound scaffold safe for the purpose for which it was erected. The scaffold only became unsafe when used by Joki for a purpose for which it was not built. It is patently evident that any scaffold, no matter how well constructed or how structurally sound it may be, may be rendered unsafe if used for purposes foreign to those for which it was constructed. Illustrations of this may be found in situations where a workman jumps off a roof onto the platform or walkway of a scaffold several feet below, being used to nail siding on a building, loses his balance and falls to the ground; or where a workman uses the platform of a scaffold as a base on which to saw lumber and accidentally saws into or through the platform causing it to break. We hold that the Scaffold Act requires a scaffold to be structurally sound in relation to the purpose for which it is erected. The scaffolding in the instant case meets this requirement. Thus there is no violation of the Scaffold Act, or of any duty required by anyone therein. The instant case is an example of a scaffold-associated injury without any violation of the Scaffold Act, and consequently no liability. This type of situation was pointed out in Pollard v. Todd, supra, in the following language appearing at page 179 of 148 Mont., at page 873 of 418 P.2d: "We have not decided that liability becomes fixed upon the showing of a scaffold-associated injury. A defendant may escape liability upon proof that there was no violation of statute * * *." To hold otherwise would require every home owner in the State of Montana to be an insurer of the safe use of any scaffold used by a workman in painting the owner's house, repairing the roof, or constructing an additional room. Surely the Legislature did not intend to impose such a burden on home owners who hire workmen for repair and maintenance work around the house. Accordingly defendant's motion for dismissal and for a directed verdict on the grounds of failure of proof should have been granted. The judgment of the district court is reversed and the case dismissed. JAMES T. HARRISON, C.J., and CASTLES, ADAIR and JOHN C. HARRISON, JJ., concur.

December 28, 1967

4ec6f60c-81a7-4ef5-9831-f5f0e9128816

HOSTETTER LEEP v INLAND DEVELOPM

N/A

13429

Montana

Montana Supreme Court

No. 13429 I N T H E SUPREME COURT O F T H E STATE O F M O N T A N A 1977 ROBERT J. HOSTETTER and E L D O N H. LEEP, d/b/a D U T C H TOUCH, P l a i n t i f f s and A p p e l l a n t s , INLAND DEVELOPMENT CORPORATION O F MONTANA, a c o r p o r a t i o n , and B I G SKY O F M O N T A N A , I N C . , a c o r p o r a t i o n , Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t Honorable W. W. L e s s l e y , Judge p r e s i d i n g . Counsel of Record: For Appellant: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Ben E. Berg argued and Richard J. Andriolo argued, Bozeman, Montana For Respondents: Thomas I. Sabo, Bozeman, Montana Brown, Pepper and Kommers, Bozeman, Montana Gene I. Brown argued, Bozeman, Montana For Amicus Curiae: J. David Penwell argued, Bozeman, Montana K o l t e r , Heath and Kirwan, Bozeman, Montana Submitted: January 11, 1977 Decided: :flAR i : , JLJ/{ F i l e d : i M r . Chief J u s t i c e Paul G. H a t f i e l d d e l i v e r e d t h e Opinion of t h e Court. This i s a n appeal from t h e d i s t r i c t c o u r t , G a l l a t i n County, denying a p p e l l a n t s ' f o r c l o s u r e on a mechanic's l i e n . O n A p r i l 22, 1974, a p p e l l a n t s , doing business a s Dutch Touch, e n t e r e d i n t o a c o n t r a c t w i t h Inland Development Cor- p o r a t i o n of Montana, a s u b s i d i a r y of Inland Construction Corporation of Minnesota. Inland Development was t h e primary c o n t r a c t o r r e s p o n s i b l e t o Big Sky of Montana, Inc. f o r t h e G l a c i e r Condominium P r o j e c t l o c a t e d i n Meadow V i l l a g e a t Big Sky, Montana. The p r o j e c t c o n s i s t e d of 1 4 b u i l d i n g s which housed 64 condominium u n i t s . The Dutch Touch c o n t r a c t involved t h e c o n s t r u c t i o n of ceramic bathtub e n c l o s u r e s i n each i n d i v i d u a l u n i t , w i t h no work on t h e common a r e a s t o be performed. T h i s was a s i n g l e c o n t r a c t , t h e b a s i s of payment t o be t h e t o t a l number of q u a r e f e e t of t i l e l a i d . Dutch Touch commenced work on t h i s c o n t r a c t during A p r i l 1974. O n August 20, 1974, Big Sky f i l e d and recorded a decla- r a t i o n of u n i t ownership covering t h e Glacier Condominiums. Dur- i n g September, October, and November, 1974, Big Sky s o l d 18 of t h e 64 condominium u n i t s t o t h i r d p a r t i e s . Dutch Touch completed t h e t i l e work on March 24, 1975, claiming t h e amount due f o r l a b o r , m a t e r i a l , and s u p p l i e s t o be $14,554.60. A s of June 18, 1975, Dutch Touch had received $13,038.12, l e a v i n g $1,516.48 unpaid. On June 18, 1975, Dutch Touch f i l e d a s i n g l e mechanic's l i e n f o r t h e unpaid balance upon t h e r e a l p r o p e r t y and premises encompassing t h e 1 4 build- i n g s and 64 u n i t s of t h e G l a c i e r Condominiums. O n August 19, 1975, Dutch Touch i n i t i a t e d a f o r c l o s u r e a c t i o n i n d i s t r i c t c o u r t seeking a p e r s o n a l judgment a g a i n s t Inland Development on t h e c o n t r a c t and enforcement of its l i e n a g a i n s t t h e i n t e r e s t of Big Sky i n t h e G l a c i e r Condominiums. A l i s pendens was a l s o f i l e d a t t h i s t i m e . A t h i r d p a r t y a c t i o n was f i l e d by Big Sky a g a i n s t Inland Construction on t h e primary c o n t r a c t . The t r i a l on t h i s t h i r d p a r t y complaint was suspended u n t i l t h e determination of t h e l i e n f o r e c l o s u r e . The d i s t r i c t c o u r t , s i t t i n g without a jury, e n t e r e d judgment a g a i n s t Dutch Touch upon t h e following conclusions of law: 1) That t h e G l a c i e r Condominium P r o j e c t became s u b j e c t t o t h e p r o v i s i o n s of t h e Montana Unit Ownership A c t , s e c t i o n s R.C.M. 67-2301 e t seq.,/1947, by reason of t h e f i l i n g of t h e d e c l a r - a t i o n by Big Sky on August 20, 1974; 2) t h a t a l i e n covering t h e e n t i r e p r o j e c t was i n v a l i d under s e c t i o n 67-2324, R.C.M. 1947; and 3) t h a t Dutch Touch f a i l e d t o e s t a b l i s h a l i e n a g a i n s t any i n d i v i d u a l u n i t i n t h e G l a c i e r Condominium P r o j e c t . Two i s s u e s a r e presented f o r review: 1) Was Dutch Touch's s i n g l e l i e n rendered i n v a l i d when Big Sky f i l e d t h e d e c l a r a t i o n ? 2) Was Dutch Touch e n t i t l e d t o f o r e c l o s e a g a i n s t o n l y t h o s e u n i t s owned by Big Sky f o r t h e e n t i r e amount of t h e l i e n ? This i s a c a s e of f i r s t impression, t h e i n t e r p r e t a t i o n of s e c t i o n 67-2324, R.C.M. 1947, a s it r e l a t e s t o a s u b c o n t r a c t o r ' s l i e n a r i s i n g from work performed and m a t e r i a l s supplied d u r i n g t h e i n i t i a l c o n s t r u c t i o n of a condominium p r o j e c t . The i n t e r e s t i n u n i t ownership l e g i s l a t i o n was generated by f e d e r a l l e g i s l a t i o n making Federal Housing Administration insurance a v a i l a b l e f o r condominiums, provided t h a t s t a t e law concerning u n i t ownership e x i s t e d . 12 USCS § 1715 y ( a ) . F H A then provided a Model A c t which many s t a t e s , including Montana, followed. The primary purpose of t h i s condominium l e g i s l a t i o n is t o i n s u r e t h e c o m p a t a b i l i t y of such housing p r o j e c t s w i t h pre- e x i s t i n g law. 77 Harvard L. Rev. 777 (1964). Under t h e p r e - e x i s t i n g l i e n law of Montana, Dutch Touch would be e n t i t l e d t o a b l a n k e t l i e n e f f e c t i v e a g a i n s t t h e e n t i r e condominium p r o j e c t . This i s s o s i n c e t h e work was performed under one c o n t r a c t , and n o t a s e r i e s of s e p a r a t e c o n t r a c t s f o r each u n i t . Caird Eng. Works v . Seven-Up Min. Co., 1 1 1 Mont. 471, 1 1 1 P.2d 267 ( 1 9 4 1 ) . W e must now determine what e f f e c t s u b j e c t i n g t h e property t o t h e Montana Unit Ownership Act has upon t h e l i e n of Dutch Touch. S e c t i o n 67-2324, R.C.M. 1947, s t a t e s : " ( 1 ) Subsequent t o recording a d e c l a r a t i o n and while t h e p r o p e r t y remains s u b j e c t t o s e c t i o n s 67- 2302 t o 67-2342, no l i e n s h a l l a r i s e o r be e f f e c t i v e a g a i n s t t h e property. During such period l i e n s o r encumbrances s h a l l a r i s e o r be c r e a t e d only a g a i n s t each u n i t and t h e undivided i n t e r e s t i n t h e common elements a p p e r t a i n i n g t h e r e t o , i n t h e same manner and under t h e s a m e c o n d i t i o n s a s l i e n s o r encum- brances may a r i s e o r be c r e a t e d upon o r a g a i n s t any o t h e r s e p a r a t e p a r c e l of r e a l p r o p e r t y s u b j e c t t o i n d i v i d u a l ownership. " ( 2 ) N o l a b o r performed o r m a t e r i a l s furnished w i t h t h e consent o r a t t h e r e q u e s t of a u n i t owner, h i s agent, c o n t r a c t o r o r s u b c o n t r a c t o r , s h a l l be t h e b a s i s f o r t h e f i l i n g of a mechanic's o r materialman's l i e n a g a i n s t t h e u n i t of any o t h e r u n i t owner n o t consenting t o o r r e q u e s t i n g t h e l a b o r t o be performed o r t h e m a t e r i a l s t o be furnished, except t h a t consent s h a l l be considered given by t h e owner of any u n i t i n t h e c a s e of emergency r e p a i r s t h e r e t o performed o r furnished w i t h t h e consent o r a t t h e r e q u e s t of t h e manager. " ( 3 ) I f a l i e n becomes e f f e c t i v e a g a i n s t two o r more u n i t s , t h e owner of each u n i t s u b j e c t t o such a l i e n s h a l l have t h e r i g h t t o have h i s u n i t r e l e a s e d from t h e l i e n by payment of t h e amount of t h e l i e n a t t r i b - u t a b l e t o h i s u n i t . The amount of t h e l i e n a t t r i b u t a b l e t o a u n i t and t h e payment r e q u i r e d t o s a t i s f y such a l i e n , i n t h e absence of agreement, s h a l l be determined by a p p l i c a t i o n of t h e percentage e s t a b l i s h e d i n t h e d e c l a r a t i o n . Such p a r t i a l payment, s a t i s f a c t i o n o r discharge s h a l l n o t prevent t h e l i e n o r from proceeding t o enforce h i s r i g h t s a g a i n s t any u n i t and t h e undivided i n t e r e s t i n t h e common element a p p e r t a i n i n g t h e r e t o not r e l e a s e d by payment, s a t i s f a c t i o n o r discharge." This i s one s e c t i o n of t h e e n t i r e Unit Ownership A c t and it i s t h e duty of t h i s Court t o i n t e r p r e t it i n such a manner a s t o i n s u r e coordination w i t h t h e o t h e r s e c t i o n s of t h e A c t , and fulfill legislative intent. Doull v. Wohlschlager, 141 Mont. 354, 377 P.2d 758 (1963); Aleksich v. Industrial Acc. Fund, 116 Mont. 127, 151 P.2d 1016 (1944). Reading the Act in its entirety, it becomes apparent that there are safeguards to insure that builders, mechanics, and materialmen involved in the initial construction of a project are to be fully compensated before individual units are sold. Furthermore, Big Sky failed to comply with these safeguards. Section 67-2303.1 allows the sale of units prior to the completion of construction of the "building", which the Act defines as a multiple unit building. However, the money from such sales must be placed in escrow. Disbursements cannot be made from this escrow fund until completion of the building and common elements or compliance with section 67-2303.2 through 2303.6, whichever occurs first. In any event, such disbursements are to be only for cost of construction, legal, architectural and financial feestand other incidental costs of the project. Sec- tion 67-2303.1(4) then specifically states: " * * * The balance of the moneys remaining in the fund shall be disbursed only upon completion of the building,.fYee and clear of all mechanic's and materialmen's liens. * * * " (Emphasis added.) Big Sky did sell 18 units prior to completion of con- struction, however it failed to deposit the moneys from these sales in an escrow account as required, and failed to pay this lien. Section 67-2323 states: "Blanket mortqaqes and other blanket liens affect- ing unit at time of first conveyance or lease. At the time of the first conveyance or lease of each unit following the recording of the declaration, every mortgage and other lien affecting such unit including the undivided interest of the unit in the common elements, shall be paid and satisfied of record, or the unit being conveyed or leased and its interest in the common elements shall be released therefrom by partial release duly re- corded. " (Emphasis added. ) Again Big Sky f a i l e d t o comply with t h i s provision. A t t h e time of its f i r s t sale Big Sky had not s a t i s f i e d t h i s l i e n nor d i d it o b t a i n a p a r t i a l r e l e a s e a s required. The l i e n of Dutch Touch a r o s e , attached and became e f f e c t i v e a g a i n s t t h e property when work was commenced, t h e f i l i n g merely p e r f e c t s t h e l i e n . Continental Supply Co. v. White, 92 Mont. 254, 266, 1 2 P.2d 569 (1932) s t a t e s : " * * * The l i e n c o n s t i t u t e s an i n t e r e s t i n t h e property; ' t h e f i l i n g extends i t s l i f e and pre- serves it. "'The l i e n a t t a c h e s t o t h e s t r u c t u r e as t h e labor i s performed o r t h e m a t e r i a l is furnished and e x i s t s with a l l of i t s f o r c e a t a l l t i m e s between t h e beginning of t h e performance of labor o r t h e furnishing of m a t e r i a l u n t i l t h e e x p i r a t i o n of t h e t i m e within which n o t i c e s of l i e n may be f i l e d . ' ( C i t a t i o n omitted.) "The t r u e function of t h e l i e n i s t o prevent sub- sequent a l i e n a t i o n s and encumbrances, except i n subordination t o i t s e l f . " See a l s o Blose v. Havre O i l & G a s Co., 96 Mont. 450, 461, 31 P.2d 738 (1934). Furthermore, t h i s l i e n was o r i g i n a l l y e f f e c - t i v e as a blanket l i e n a g a i n s t t h e e n t i r e p r o j e c t under t h e Caird case. W e d i s a g r e e t h a t t h i s l i e n was rendered i n v a l i d by t h e f i l i n g of t h e d e c l a r a t i o n , a s held by t h e d i s t r i c t c o u r t . Instead, w e adhere t o t h e r a t i o n a l e of t h e Wisconsin Supreme Court when they faced t h e i s s u e i n Stevens Const. Corp. v. Draper Hall, Inc., 73 Wis.2d 104, 242 N.W.2d 893, 898 (1976). The Wisconsin c o u r t was a l s o confronted with a mechanic's l i e n based upon work performed during i n i t i a l construction and a Unit Ownership Act with a provision t h e same a s our s e c t i o n 67-2324, R.C.M. 1947. The Wisconsin s t a t u t e , S 703.09 W.S.A., is i d e n t i c a l t o our s e c t i o n 67-2324, with t h e i r § 703.09(2) t h e same a s our s e c t i o n 67-2324 ( 3 ) . Their decision i n Stevens s t a t e s : "Stevens and The Bruce Company argue t h a t t h e i r l i e n s arose and became e f f e c t i v e when t h e excava- t i o n s began i n September of 1971. They contend that no distinction should be made between when a lien arises and when a lien becomes effective. We agree with this proposition but it makes no difference in terms of the rights of the claimant- appellants in this case. The word 'effective', in the context of construction liens, should be interpreted to mean 'capable of bringing about an effect.' A construction lien is capable of bring- ing about an effect at the time it arises, that is, when 'substantial excavation for the founda- tions' of the new project begin, as provided in sec. 289.01(4), Stats. The later events of giving notice and filing, as required by sec. 289.06, merely preserve and perfect a lien which is already effective in the sense of being capable of having an effect upon the liened land. "Acceptance of this position of appellants does not mean that sec. 703.09 (2) . Stats., is inapplicable to the facts of this case. On the contrary, we conclude that this subsection still governs, even though the cliamants' liens were first 'effective' in September of 1971, before the condominium declaration was recorded. "Subsection (2) provides that a proportional lien occurs whenever 'a lien becomes effective against 2 or more units.' Obviously the most frequently occurring situation in which a lien will become effective against two or more units is when repairs are made to the common areas of the condominium unit, and left unpaid. But we conclude that a lien, originally effective as a blanket lien against the whole property, becomes effective against two or more units within the meaning of sec. 703.09(2), Stats., when the property is made subject to the provisions of ch. 703 by the filing of a condominium declara- tion before the initiation of foreclosure proceedings against the property as a whole. "Thus it is not critical that the filing of the lien claims came after the condominium declaration was filed, as the trial court decided. Even if the claims were filed before the condominium declaration was recorded, only proportional liens would attach to the individual units. On the other hand, if foreclosure proceedings are begun before the condominium declara- tion is recorded, and a lis pendens filed, the situ- ation is frozen so that the subsequent recording of a declaration does not transform the blanket lien into a proportional lien on individual units." Likewise, the mechanic's lien filed by Dutch Touch was not rendered inaalid when Big Sky filed its declaration, but remained a valid single lien, which was proportionately effective against each unit, pursuant to section 67-2324(3), R.C.M. 1947. The second issue presented involves the enforcement of the lien once it is established. The foreclosure of a mechanic's lien is governed by the rules of equity. Cole v. Hunt, 123 Mont. 256, 211 P.2d 417 (1949). The general rule is that a blanket construction lien against an entire property consisting of several parcels cannot be enforced in toto against less than all of such parcels. Annot. 68 A.L.R.3d 1300. The reason is that it would be inequitable to burden some lesser portion of the liened premises with charges for labor and materials which were not actually furnished to that particular parcel. Conse- quently, this single lien, proportionately effective against each unit, would only be enforceable against each unit pro- portionately. It is the duty of those purchasing, or taking liens on, property under construction or on which improvements are being made, to make inquiry to ascertain whether or not the property is encumbered by mechanics' or materialmen's liens, and such parties, having knowledge of the fact that the work is going on, are charged with constructive, if not actual, notice of any such lien as has attached to the premises. Continental Supply Co. v. White, supra. However, any unit owners, other than Big Sky, whose property is subject to Dutch Touch's mechanic's lien, were put into that position by Big Sky's total disregard of the provisions of the Unit Ownership Act concerning mechanics' liens and pre- completion sales. Big Sky failed to place the proceeds of these sales, made prior to completion of construction, into an escrow account, as required by section 67-2303.1, R.C.M. 1947. Therefore, the mechanics' liens, effective against each unit so sold, were not satisfied from the escrow fund as contemplated by section 67-2303.1. 1947, Big Sky further ignored section 67-2323, R.C.M./whereby every blanket lien or blanket mortgage must be satisfied before the first conveyance or lease of a unit, or a partial release for such u n i t obtained and recorded. Equity w i l l g r a n t t h e r e l i e f sought when i n view of a l l circumstances t o deny it would permit one of t h e p a r t i e s t o s u f f e r a g r o s s wrong a t t h e hands of t h e o t h e r p a r t y who brought about t h e condition. Thisted v. Country Club Tower Corp., 146 Mont. 87, 405 P.2d 432 (1965) ; Dutton v. Rocky Mountain Phos- phates, 151 Mont. 54, 438 P.2d 674 (1968). This Court cannot ignore t h e f a c t t h a t t h i s s i t u a t i o n would never have occurred, had Big Sky f u l l y complied with t h e Unit Ownership Act. Equity demands t h a t Dutch Touch be allowed t o s a t i s f y t h e e n t i r e amount of its l i e n f i r s t from those u n i t s r e t a i n e d by Big Sky. Thereafter, should any amount of t h e l i e n remain un- s a t i s f i e d , Dutch Touch may seek proportionate enforcement of such balance a g a i n s t t h e 18 u n i t s previously sold by Big Sky a f t e r t h e owners of t h e s e u n i t s a r e made p a r t i e s t o t h e a c t i o n . I n t h e record t h e r e i s a motion by Big Sky t o join t h e s e u n i t owners a s p a r t i e s defendant pursuant t o Rule 19, M.R.Civ.P. This motion was never r u l e d upon by t h e d i s t r i c t c o u r t . The Committee Note t o Rule 19 s t a t e s t h a t it is c l e a r t h a t whenever f e a s i b l e t h e persons m a t e r i a l l y i n t e r e s t e d i n t h e s u b j e c t of an a c t i o n should be joined a s p a r t i e s so t h a t they may be heard and a complete d i s p o s i t i o n made. Such is t h e case of t h e s e u n i t owners should Dutch Touch have t o enforce any portion of t h e l i e n a g a i n s t t h e i r u n i t s i n t h e event t h e u n i t s r e t a i n e d by Big Sky do not s a t i s f y t h e l i e n . For t h i s reason t h e motion of Big Sky should have been granted. This judgment of t h e d i s t r i c t c o u r t i s vacated and t h i s cause remanded t o rehear t h e f o r c l o s u r e a c t i o n i n compliance with t h i s decision. Chief J u s t i c e I) We concur:

March 14, 1977

3a5c3a5f-8b6d-4a3e-ad3f-e1a145a7cac0

BATEY LAND LIVESTOCK CO v NIXON

N/A

13369

Montana

Montana Supreme Court

No. 13369 & 13370 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 B A T E Y L A N D & LIVESTOCK C O M P A N Y , a Montana Corporation, P l a i n t i f f and Appellant, -vs- ROBERT NIXON, Defendant and Third Party P l a i n t i f f and Appellant versus Fred Hail and Respondent t o Batey -vs- ROBERT BRAATON and H E L E N BRAATON, h i s wife and FRED HALL, Third Party Defendants and Respondents. ............................................................ BATEY LAND & LIVESTOCK, a Montana Corporation, P l a i n t i f f and Appellant, -vs- ROBERT PAULEY, Defendant and Third Party P l a i n t i f f and Appellant versus Fred Hall and Respondent t o Batey -vs- ROBERT BRAATON and HELEN BRAATON, h i s wife and FRED HALL, Third Party Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Sixteenth J u d i c i a l D i s t r i c t , Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellants: Krutzfeldt and Haker, Miles City, Montana W. J. Krutzfeldt argued, Miles City, Montana Anderson, Symrnes, Forbes Peete & Brown, B i l l i n g s , Montana James L. Jones argued, B i l l i n g s , Montana For Respondents: Lucas, J a r d i n e and Monaghan, Miles C i t y , Montana Thomas M. Monaghan argued, Miles City, Montana Submitted: January 1 2 , 1977 Decided : WAR 2 1977 M r . Justice Gene B. Daly delivered the Opinion of the Court. Batey Land & Livestock Company appeals from summary judgment rendered for defendants Robert Nixon and Robert Pauley by the d i s t r i c t court, Custer County, i n actions for conversion. Defendants Nixon and Pauley appeal from the d i s t r i c t court's order dismissing t h e i r third party complaints against Fred Hall for indemnification. O n May 2, 1968, Baby Land & Livestock Company (Bgtey) sold 215 head of Pereford c a t t l e , 198 cows and 17 bulls, branded Heart bar H , t o Robert and Helen Braaton. Payment was made by promissory note i n the amount of $43,000 executed by Braatons and payable i n installments of $10,000 plus interest on November 1st of each year commencing i n 1968. Braatons also executed a security agreement on May 2, 1968, pledging the c a t t l e a s security for the indebtedness. A financing statement was f i l e d with the Rosebud C6unty clerk and recorder on M a y 6, 1968. O n May 2, 1968 Braatons borrowed $13,570 from the Miles City Production Credit Association (PCA) and executed a security agreement l i s t i n g i t e m s of personal property, including c a t t l e , a s c o l l a t e r a l for the loan: " 2. LIVESTOCK, E Q U I P M E N T ANDIOR OTHER-. G O O D S - A l l livestock, equipment, and/or other goods of every kind and description now owned o r hereafter acquired by the Debtor, including, but not limited t o , the following: Fifty Head of Hereford Cattle, Branded: Left Rib, subject t o prior lien, and described a s follows: 48 Cows 2 Bulls Two Hundred Fifteen Head of Hereford Cattle, Branded: Right Ribs, held by B i l l of Sale, subject t o prior lien, and described a s follows: 198 Cows 17 Bulls ALSO: One Hundred Per-Cent (100%) of the increase from One Hundred Ninety-Eight Head of Hereford Cows, branded : Right Ribs, said increase t o be Right Ribs; @ branded:" The security agreement provided t h a t Braatons not s e l l o r dispose of any of t h e c o l l a t e r a l without t h e consent of PCA. O n May 9 , 1968, Robert L. Batey, acting i n h i s capacity a s president of Batey Land & Livestock Company, executed a subordina- t i o n agreement prepared by PCA. By the terms of : the agreement, Batey consented t o give P C A a f i r s t l i e n on Braatons' personal property, not t o exceed $13,570 the amount of t h e loan: [May 9, 1968 Subordination Agreement] "In order t o a s s i s t him t o obtain t h i s loan, I agree t h a t any i n t e r e s t o r l i e n which I have o r may obtain during t h e l i f e of such security agreement, i n o r on h i s r e a l o r personal property (including crops), and t h e increase from 198lHereford cows, b r a n d e d : w marked on r i g h t side, w i l l be considered junior and in- f e r i o r t o t h a t l i e n which you may take on such property t o secure your loan. I further agree t h a t I w i l l not d i s t u r b him i n the possession of e i t h e r h i s r e a l o r personal property, f o r a period not t o exceed eight months from t h i s date, without f i r s t securing your written consent." O n May 21 and May 28, 1968, P C A f i l e d notices of security agreement with the Montana Livestock Commission, Helena, Montana, t o perfect i t s security i n t e r e s t embodied i n the May 2, 1968 security agreement. Neither notice referred t o o r specified any livestock branded Heart bar H. The only livestock specified were those c a t t l e branded Lazy H hanging H (3) and M hanging 0 (w). Braatons negotiated a second loan with P C A f o r $21,610 and executed a second security agreement on October 31, 1968. This security agreement a l s o l i s t e d items of personal property, including c a t t l e , a s c o l l a t e r a l f o r t h e loan: "LIVESTOCK, EQUIPMENT AND/OR OTHER G O O D W 1 1 livestock, equipment,and/or other goods of every kind and descrip- t i o n now owned o r hereafter acquired by the Debtor, in- cluding, but not limited t o , the following: F i f t y Head of Hereford Cattle, Branded: 3 Left Ribs and Thirty Head of Hereford Calves, Branded: % Right Ribs, described as follows: 48 Cows 30 Calves 2 Bulls Two Hundred Seventeen Head of Hereford Cattle, Branded: Right Ribs, subject t o a f i r s t security interest held by Batey Land & Lovestock Co., described a s follows: 200 Cows 17 Bulls ALSO: One Hundred Per Cent (100%) of the increase from T w o Hundred (200) Head of Hereford Cows, B r a n d e d : m Right Ribs, said increase t o be branded: Right Ribs ;'I O n October 31, 1968, Robert L. Batey, once again acting i n h i s capacity a s president of Batey Land & Livestock Company, executed a second subordination agreement. I n the same language used i n the f i r s t subordination agreement, Batey consented t o give PCA a f i r s t l i e n on Braatons' personal property, not t o exceed $21,610 the amount of the second loan: [October 31, 1968 Subordination Agreement] "In Order t o a s s i s t him t o obtain t h i s loan, I agree t h a t any interest or l i e n which I have or may obtain during the l i f e of such security agreement, i n o r on h i s r e a l or personal property (including crops), and the increase from 200 Hereford cows, b r a n d e d : m marked on right side, w i l l be considered junior and inferior t o that l i e n which you may take on such property t o secure your loan. I further agree that I w i l l not disturb him i n the possession of e i t h e r h i s r e a l or personal property, for a period not t o exceed twelve months from t h i s date, without f i r s t se- curing your written consent." O n November 19, 1968 P C A f i l e d a notice of renewal of security agreement with the Montana Livestock Commission i n order t o perfect its security interest embodied i n the October 31, 1968, security agreement. This notice, a s i n the case of the prior two notices, failed t o refer t o o r specify Heart bar H c a t t l e , specifying only c a t t l e branded Lazy H hanging H and M hanging 0. O n April 21, 1969, Batey f i l e d a notice of security interest with the Montana ~ i v e s t o c k Commission t o perfect i t s security interest embodied i n the May 2, 1968, security agree- ment. e his notice specified livestock branded Heart bar H a s being the subject matter of the security agreement dated May 2, 1968, and l i s t e d Robert and Helen Braaton a s the debtors. Subsequent t o the above transactions, Braatons solicited the services of Fred Hall, a livestock broker, t o negotiate the sale of "Braatons"' cattle. O n ~ecember 6, 1969, Hall negotiatdd with Robert Nixon for the sale of 80 head of c a t t l e , branded Heart bar H for $18,400';' Hall further negotiated with Robert Pauley the s a l e of 20 head of c a t t l e , branded Heart bar H, for $4,200 on December 12, 1969. Hall received payment of the e n t i r e amount from both sales ($22,600) and issued h i s own per- sonal check made payable t o "Robert R. Braaton & P.C .A." i n the amount of $21,990. ($22,600 l e s s $610 Hall's commission for the two sales a t $10 per head.) O n April 26, 1971 Batey f i l e d s u i t against Braatons i n Rosebud County t o recover sums owed by Braatons. The only gay- ments made by Braatons on the $43,000 promissory note appear t o be a payment of $10,000 plus interest made on November 4, 1968, and a payment of ;510,000 plus interest made on November 11, 1969. O n the same date a s the f i l i n g i n Rosebud County, Batey f i l e d the instant actionsin the d i s t r i c t court of Custer County against Nixon and Pauley, for conversion of the Heart bar H c a t t l e . Batey obtained a judgment against Braatons i n the amount of $15,000 on July 22, 1974. That judgment remains entirely unpaid, the Braatons apparently being judgment proof. O n February 11, 1974, Nixon and Pauley f i l e d amended third party complaints against the Braatons and Hall, alleging breach of warranty of title. , After the district court, Rosebud County, determined the liability of Braatons, and upon submission of the instant matters to the district court,; Custer County, Nixon, Pauley and Hall moved for summary judgment. Batey responded by filing a cross-motion for summary judgment. On March 7, 1975 the district court entered its ;memorandum and order denying all defendants' motions for summary judgment and granting Batey's motion on its theory of wrongful conversion. The district court concluded Batey had a perfected security interest in the cattle and Nixon and Pauley had converted the collateral by their purchases. The court found Hall to be a joint tortfeasor in the conversion of the cattle, but failed to find sufficient proof establishing fraud. Subsequent to the district court's order, Nixon and Pauley discovered the subordination agreements which gave PCA a paramount lien. By order dated April 30, 1975 the district court granted " a , motion to set aside the court's order granting summary judgment in favor of Batey. A trial without jury was ordered. The district court granted summary judgment for Nixon and Pauley on March 22, 1976. In its order and memorandum the district court found PCA had a security interest in the Heart bar H cattle for $35,360, the amount of the two loans; that Batey signed agreements subordinating its security interest to the security interest held by PCA; that the subordination agreement signed by Batey was not ambiguous; thatthe security interest agreement between Braatons and PCA gave Braatons the right to sell the Heart bar H cattle with the consent of PCA; that PCA's acceptance of the proceeds from the sales constituted con- sent to the sales; that Nixon and Pauley ,had no actual notice of Batey's security interest; and that the sale of the cattle to Nixon and Pauley was conducted openly, fairly and.at market value. The d i s t r i c t court further ordered the actions against the third party defendants be dismissed with prejudice. A s i n the d i s t r i c t court, t h i s Court w i l l t r e a t the separate actions against defendants Nixon and Pauley a s one, because of the similarity of facts and legal issues presented. O n review, i n i t i a l l y Batey conterids t h e - d i s t r i c t court erred when it granted defendants' motion for summary judgment. I n other words, it i s argued the d i s t r i c t court erred when it found the P C A possessed a perfected f i r s t lien; that the Heart bar H c a t t l e were the subject matter of the unambiguous subor- dination agreement executed by Batey;and there was no issue of fact t o be decided by a jury. A summary judgment can be granted only where the p r e t r i a l record discloses (1) the absence of any genuine issue of material fact and (2) that the moving party is entitled t o judgment a s a matter of law. Rule 56(c), M.R.Civ.P. For an extensive dis- cussion of the principles of summary judgment under Rule 56(c) see: Harland v. Anderson, Mont . , 548 P.2d 613, 33 St.Rep. 363. This Court's i n i t i a l inquiry concerns the presence o r absence of a genuine issue of material fact. Batey contends PCA's failure t o specify Heart bar H c a t t l e i n i t s notices of security agreement and notice of renewal of security agreement i s proof of PCA'S lack of intent t o secure a f i r s t l i e n on the Heart bar H c a t t l e , I n light of t h i s evidence, Batey contends the subordina- tion agreements are ambiguous and t h e i r interpretation is a genuine issue of material fact. It is argued we must look t o the intent of the parties and the underlying circumstances surrounding the execution of the subordination agreements in resolving the legal effect of the subordination agreements. We disagree. The subordination agreements executed by Batey aredear and specific. Each of the instruments contains language sub- ordinating Batey's lien on Braatons' real or personal including crops and the increase from the Heart bar H cattle, to PCA1s lien. Sections 13-704 and 13-705, R . C . M . 1947, are controlling: Section 13-704: "Intention to be ascertained from language. The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." Section 13-705: "Interpretation of written contracts. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this chapter." The subordination agreements fail to present a question of fact. The plain and clear meaning of the instruments is control and the intent of the parties is to be ascertained from the instruments. Fulton V . Clark, 167 Mont. 399, 538 P.2d 1371, 32 St. Rep. 8 0 8 . As a matter of law, the subordination agreements give PCA a first lien on the Heart bar H cattle in the amount of $35,350. Since the proceeds of the sale, which the district court found to be open, fair and at market value, were less than this amount, the PCA did not exceed its security interest in the collateral. Batey contends that even if the subordination agreements are found to give PCA a superior lien, PCA failed to perfect its security interests when it failed to specify Heart bar H cattle as being the subject matter of the security agreements in the notices of security agreement and the notice of renewal of security agreement. This argument may be resolved by defining the purposes of the various instruments. The security agreement is the instrument which places the encumbrance on the debtor's property. The financing statement is to evidence an encumbrance on the real or personal property of a debtor and is filed with the county clerk and recorder where the debtor resides for the purpose of giving notice to third parties and perfecting the security interest, in compliance with the Uniform Commercial Code, section 87A-9-401, R.C.M. 1947. The filing of notices of security agreement and notices of renewal of security agreement with the Montana Livestock Commission is in compliance with section 52-319, R . C . M . 1947, which seeks to protect livestock markets from liability for conversion arising out of the sale of livestock burdened with liens. Montana Meat Co. v. Missoula Livestock Auction Co., 125 Mont. 66, 230 P.2d 955. The PCA perfected its security interest when it filed its financing statement on May 13, 1968, and listed "all livestock" as being the collateral for the security agreement. This instru- ment,:+dSly filed in the county where the debtor resided, gave notice to third parties that PCA had a perfected lien on Braatons' cattle. PCA's failure to adequately describe the Heart bar H cattle in the notices of security agreement and the notice of renewal of security agreement would act as a bar to PCA only if the cattle were sold by a livestock market and PCA was attempting to satisfy its lien by an action against the livestock market for conversion. Going one step further, Batey in executing the subordina- tion agreements, had actual notice of PCA's superior lien. Such actual notice estops Batey from coming before the courts and claiming that a sale of the Heart bar H cattle defeated his security interest in the collateral. The conclusive legal effect of the subordination agreements is to subordinate Batey of any interest in the proceeds from the sale of Heart bar H cattle, up to the amount of PCA's lien. We find it unnecessary to discuss defendants' appeal of the district court's order dismissing the third party complaints that against Fred Hall having resolvedlthe district court, in'granting defendants' motion for summary judgment, was not presented with any genuine issue of material fact and as a matter of law de- fendants were entitled to judgment. , The judgment of the district court affirmed. 1 We Concur:

March 2, 1977

42bec662-5f10-45c0-872a-124047e89e58

HOLM v HOLM

N/A

13487

Montana

Montana Supreme Court

No. 13487 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 RICHARD W. HOLM, Plaintiff and Appellant, ALLENA N. HOLM, Defendent and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B Sande, Judge presiding. Counsel of Record: For Appellant: Beiswanger and Wilson, Billings, Montana Gary L. Beiswanger argued, Billings, Montana For Respondent : Berger, Anderson, Sinclair and Murphy, Billings, Montana Richard W. Anderson argued, Billings, Montana Submitted: January 25, 1977 Decided: MAR 2 3 9 7 7 Filed: dlb,( 2 3 7 1 M r . J u s t i c e Frank I. H a s w e l l d e l i v e r e d t h e Opinion of t h e Court. This is an appeal by t h e f a t h e r of two minor g i r l s from an o r d e r of t h e d i s t r i c t c o u r t , Yellowstone County, chang- i n g t h e i r custody t o t h e i r mother. The c h i l d r e n of t h e p a r t i e s are twin g i r l s who w e r e s i x y e a r s o l d a t t h e t i m e of t h e i r p a r e n t s ' divorce. O n June 2 , 1975, t h e i r f a t h e r was awarded a d e f a u l t d i v o r c e from t h e i r mother. The decree awarded custody of t h e g i r l s t o t h e f a t h e r , w i t h reasonable r i g h t s of v i s i t a t i o n t o t h e mother, pursuant t o a w r i t t e n custody agreement s o providing which was approved, confirmed and made a p a r t of t h e decree. I n October, 1975, t h e f a t h e r and t h e two g i r l s moved t o Rapid City, South Dakota and have r e s i d e d t h e r e continuously s i n c e t h a t d a t e . O n October 20, 1975, t h e mother f i l e d an a f f i d a v i t seek- i n g a change i n custody t o her based upon a change i n circum- s t a n c e s of t h e p a r t i e s s i n c e e n t r y of t h e o r i g i n a l decree f o u r months previously. The a f f i d a v i t a l l e g e d t h a t a t t h e t i m e o f t h e d i v o r c e t h e mother w a s i n a p h y s i c a l l y and mentally d e b i l i t a t e d c o n d i t i o n a s a r e s u l t of surgery making h e r a b i l i t y t o care f o r t h e c h i l d r e n doubtful; t h a t she signed t h e custody agreement under t h e s e circumstances; and t h a t she had s i n c e recovered and w a s p h y s i c a l l y capable of c a r i n g f o r t h e c h i l d r e n . She a l s o a l l e g e d t h e f a t h e r ' s i n a b i l i t y t o care f o r t h e c h i l d r e n . She sought an award of c h i l d support on change of custody t o h e r . Following a hearing, t h e d i s t r i c t c o u r t made a f i n d i n g t h a t t h e mother's a p p l i c a t i o n f o r change o f custody was premature and denied it. The c o u r t ' s o r d e r f u r t h e r provided t h a t " * * * This m a t t e r i s continued f o r f u r t h e r c o n s i d e r a t i o n a t a l a t e r d a t e upon a p p l i c a t i o n of e i t h e r p a r t y . " O n June 28, 1976, t h e mother f i l e d a second a f f i d a v i t and application for change of custody. This affidavit, in addition to the matters alleged previously, alleged further changes in circumstances consisting of her remarriage, her maintenance of a suitable home for the children, the willing- ness of her present husband to have the children in the home, her return to steady employment, and her further physical recovery. She again sought an award of child support on change of custody. Following denial of the husband's motion to dismiss for lack of jurisdiction, the district court held a hearing on the wife's application for change of custody. On August 4, 1976, the district court entered findings of fact, conclusions of law and an order changing custody to the mother and awarding her child support of $65 per month per child. In its findings the district court found that at the time the mother signed the custody agreement incorporated in the divorce decree she was in a physically and emotionally debili- tated state; that at the time of the mother's first application for change of custody the court was of the opinion " * * * that [the mother] had in fact not fully recovered from her physical problems and was not yet restored to normal health and vitality" and that for these reasons, the court "entered an interim order" continuing custody in the father but invited further consideration of the matter at a later date upon application of either party; that the remarriage of the mother, establishment of a new home, her recovery from her physical impairments, and her return to work,finding she is physically able to meet the demands of her occupation and homemaking are material changes in circumstances from those existing at the time of the divorce. The court further found that it would be in the best interests of these female children approaching their eighth birthdays that their custody be placed with their mother. The findings state that " * * * This would not necessarily be the case if they were male children, where their interests and needs * * * would be more in keeping with [their father's] situation." and "Everything else being equal, however, and for well-known biological and emotional reasons, the Court deter- mines that it would be in the best interests of these female children to have their primary guidance provided by their mother, who appears at this time to be a fit and proper mother." There are two issues assigned for review on appeal: (1) Did the district court have jurisdiction to enter- tain the mother's petition for change of custody? (2) Did the district court abuse its discretion in changing custody? The jurisdictional issue determines the outcome of this appeal. The Uniform Marriage and Divorce Act was enacted by the Montana legislature in 1975. Its effective date was January 1, 1976. The provision of that Act pertinent to this appeal is codified as section 48-339, R.C.M. 1947, and reads: "Modification. (1) No motion to modify a custody decree may be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may en- danger seriously his physical, mental, moral, or emotional health. "(2) The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless: "(a) the custodian agrees to the modification; "(b) the child has been integrated into the family of the petitioner with consent of the custodian; or "(c) the child's present environment endangers seriously his physical, mental, moral, or emo- tional health, and the harm likely to be caused by a change of environment is outweighed by its advantages to him. "(3) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment." Subsection (1) above specifically bars an application for change of custody within 2 years of an existing custody award, subject to an exception not pertinent to this case. Here the original custody award was made on June 2, 1975; the appli- cation for change of custody was filed on June 28, 1976; and the order granting the change of custody was entered on August 4, 1976. The district court lacked jurisdiction to change custody less than 14 months after the original custody award based on the best interests of the children where, as here, it specifically found that the custodian " * * * is and has been a fit and proper father. " The rationale behind this provision is expressed in this language in the Comment of the Committee which acted for the National Conference of Commissioners on Uniform State Laws in promulgating the Uniform Marriage and Divorce Act: "Most experts who have spoken to the problems of post-divorce adjustment of children believe that insuring the decree's finality is more important than determining which parent should be the cus- todian. See Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L.Rev. 55 (1969). This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child's inter- est. Because any emergency which poses an immed- iate threat to the child's physical safety usually can be handled by the juvenile court, subsection (a) [subsection 1 of section 48-339, R.C.M. 19471 prohibits modification petitions until at least two years have passed following the initial decree, with a 'safety valve' for emergency situations. To discourage the noncustodial parent who tries to punish a former spouse by frequent motions to modify, the subsection includes a two-year wait- ing period following each modification decree. During that two-year period, a contestant can get a hearing only if he can make an initial showing, by affidavit only, that there is some greater urgency for the change than that the child's 'best interest' requires it. During the two- year period the judge should deny a motion to modify, without a hearing, unless the moving party carries the onerous burden of showing that the child's present environment may endanger his physical, mental, moral, or emotional health." (Bracketed material supplied. ) This rationale is persuasive. It makes sense. It ex- plains the purpose, intent, and operation of the statute. We adopt it. Subsection (2) of section 48-339, R.C.M. 1947, also denied jurisdiction to the district court to change custody. It requires the district court to retain the prior custodian unless he agrees to the modification, or the child has been integrated into the family of the petitioner with the consent of the custodian, or the child's present environment seriously endangers his physical, mental, moral, or emotional health to an extent where the harm to the child from a change in custody is outweighed by its advantages to the child. None of these conditions is present in this case. For the rationale and appli- cation of this subsection see Commission Comment, National Conference of Commissioners on Uniform State Laws, Uniform Marriage and Divorce Act, approved and recommended at its Annual Conference, August 1-7, 1970, with amendments approved August 27, 1971 and August 2, 1973. The mother argues that the Uniform Marriage and Divorce Act has no application to this case. She contends that her mod- ification proceeding was initiated prior to its adoption, con- tinued for further consideration at a later date, and the prior law governs this proceeding. We cannot agree with this contention. Although her original application and the district court's order thereon occurred prior to the effective date of the Act, the district court held her application premature and denied it. While it is true that the district court at that time provided that " * * * this matter is continued for further consideration at a later date upon application of either party", it amounted to no more than an expression of the district court's continuing juris- diction over child custody. The second custody hearing was based on another application for change of custody after the Act became effective and alleged a change in circumstances based in part on events that had occurred following the effective date of the Act. Under these circumstances we hold that the mother's application for change of custody is governed by the Act. The order of the district court of Yellowstone County changing custody dated and filed on August 4, 1976, is vacated for lack of jurisdiction. This cause is remanded to the district court for determination of whether attorney's fees should be awarded the husband pursuant to the provisions of section 48- 339 (3), R.C.M. 1947. Justice /'* Justices -

March 2, 1977

d79713b3-9397-4046-a7dd-2d52e7093c76

STATE EX REL KOSENA v DISTRICT CO

N/A

13700

Montana

Montana Supreme Court

No. 1 3 7 0 0 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 7 STATE OF MONTANA ex rel., BRUCE A. KOSENA, d/b/a THE PUB, R e l a t o r , THE D I S T R I C T COURT OF THE F I R S T J U D I C I A L DISTRICT OF THE STATE OF MONTANA, I N AND FOR THE COLTTY OF LEWIS AND CLARK, THE HONORABLE ARNOLD OLSEN, Judge presiding. R e s p o n d e n t s . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For R e l a t o r : S m i t h and H a r p e r , H e l e n a , M o n t a n a R o b e r t T . Cumrnins, H e l e n a , M o n t a n a S u b m i t t e d : February 1 0 , 1 9 7 7 . - D e c i d e d : ,m 2 ;q J i P E R CURIAM: The application f o r a w r i t of supervisory control t o review and reverse the d i s t r i c t c o u r t ' s denial of summary judg- ment t o r e l a t o r i s denied and t h i s proceeding dismissed. For t h e benefit of counsel practicing before t h i s Court i n future proceedings we s e t f o r t h t h e following reasons f o r t h i s denial and dismissal. A n order denying summary judgment i s not an appealable order. Rule 1, M.R.Civ.App.P. Such an order i s reviewable on appeal from a f i n a l judgment. Rule 2, M.R.Civ. App.P. To permit review of such order p r i o r t o f i n a l judgment through the device of supervisory control o r other extraordinary w r i t i s t o accomplish i n d i r e c t l y t h a t which cannot be done d i r e c t l y . An order denying summary judgment i s nonappealable i n the absence of a s t a t u t e authorizing such appeal. 10 Wright & Miller, Federal Practice & Procedure: C i v i l $2715; 6 Pt.2 Moore's Federal Practice, q56.21121; Switzerland Cheese Asso. v. Hornets Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L ed 2d 23; United States v. Florian, 312 U.S. 656, 61 S.Ct. 713, 85 L ed 1105, rehearing denied 312 U.S. 715, 61 S.Ct. 738, 85 L ed 1145. Also see: Anno: Reviewability of Federal Court's Denial of Motion f o r Summary Judgment, 17 L ed 2d 886. Under s t a t e summary judgment procedures, the v a s t majority of cases have held likewise. See: Reviewability of Order Denying Motion f o r Summary Judgment, 15 ALR3d 899, 902, f o r a collection of cases from s t a t e j u r i s d i c t i o n s ; 4 Am J u r 2d, Appeal & Error, $ 104. The reason for the rule is that an order denying summary judgment is interlocutory in character, not res judicata (Fraser v. Doing, 130 F.2d 617) and subject to later review if circumstances warrant : b "* * * And if good reason is shownathe prior ruling is no longer applicable or f f i some dther reason should be departed from, the court and should entertain a renewed motion in the interest of effective judicial administration." 6 Moore's Federal Practice, 956.14[2], p. 56-363. Also see: Brown v. Midland National Bank, 150 Mont. 422, 435 P.2d 878 and cases cited therein. We consider that in the usual case good judicial adminis- tration requires freedom of action by the district court prior to trial and noninterference on our part at this stage. In the absence of extraordinary and compelling circumstances beyond simply requiring a party to proceed to trial, we decline to review the order of the district court denying summary judgment by supervisory control or other extraordinary writ. It would assist counsel and this Court immeasurably if the district courts would indicate their reasons for denial of summary judgment in future cases. 1 / 1' 8 , i ' 5 % ; f G 6 -- # - + - //#: i - + -- ~hi'ef Justice ,

February 22, 1977

cb202167-f5b2-4330-9931-559e8e2d9cc1

MATTER OF STAPELKEMPR

N/A

13517

Montana

Montana Supreme Court

No. 13517 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF THOMAS EDWARD STAPELKEMPER, A Child Under Eighteen Years of Age. Appeal from: District Court of the Eighth Judicial District, Honorable R. J. Nelson, Judge presiding. Counsel of Record: For Appellant: Howard F. Strause argued, Great Falls, Montana For Respondent: Michael Greely, Attorney General, Helena, Montana J. Mayo Ashley, Assistant Attorney General, argued, Helena, Montana J. Fred Bourdeau, County Attorney, appeared, Great Falls, Montana Filed: IVPR 16 1377 Submitted: January 14, 1977 Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal from a judgment of the youth court of Cascade County, granting the petition to transfer appellant's cause to adult criminal court. On June 24, 1976, a petition was filed in the youth court of Cascade County alleging appellant was under the age of 18 years and a delinquent child in that he committed acts in violation of section 94-4-103, R.C.M. 1947, attempted deliberate homicide, and section 94-5-202 ( l ) ( d ) , R.C.M. 1947, aggravated assault. On June 29, 1976, the county attorney filed a petition to transfer the prosecution of appellant to adult criminal cuurt pursuant to section 10-1229, R.C.M. 1947. Prior to a hearing on the petition to transfer, the youth court ordered, and appellant underwent, psychiatric evaluation at the Northcentral Montana Community Mental Health Center. A hearing on the matter of transfer was held on July 16 and 20, 1976. On July 26, 1976, the youth court judge concluded the youth court should waive jurisdiction and transferred the cause to the district court in accordance with the petition of the county attorney. This appeal is taken from that order. Appellant alleges three errors in support of his claim the transfer was invalid: 1 . Appellant was denied his constitutional right to present the defense of mental disease or defect excluding respon- sibility. 2. It was an abuse of discretion for the youth court judge to transfer the matter of prosecution to the district court. 3. Section 10-1229, R.C.M. 1947, does not authorize a Pouth court judge to transfer to the district court the prosecu- tion of a youth charged with the act of attempt, as set forth in section 94-4-103, R.C.M. 1947. First,appellant contends the youth court erred when it denied him the right to assert the defense of mental disease or defect excluding responsibility at the transfer hearing. Appellant argues a careful reading of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L ed 2d 84'and In re Gault, 387 U.S. 1, 87 S.W. 1428, 18 L ed 2d 527, leads to the conclusion that the concept of due process and fair treatment mandates allowing juveniles the right to enter the defense of insanity. It is further argued the California case of In re M.G.S., a minor, 72 Cal.Rptr. 808, 267 C.A.2d 329 and the Wisconsin case of In re Winburn v . Wisconsin, 32 Wisc.2d 152, 145 N.W.2d 178, stand for the proposition that the deprivation of a juvenile's right to present the defense of legal insanity in juvenile court proceedings violates the consti- tutional guarantee of due process of law, In - Kent the U.S. Supreme Court addressed the matter of jurisdiction waiver procedure and held that a juvenile court could not waive jurisdiction over the juvenile, thus denying the juvenile his statutory right to the exclusive jurisdiction of the juvenile court, without a "full investigation" of all available information deemed relevant, i.e., the waiver hearing must measure up to the essentials of due process and fair treatment. The Gault, Winburn and M . G . S . decisions, on the other hand, pertain to the assertion of the insantity defense at the adjudicatory stage of the juvenile process, where cornrnitment :. to a state institution may follow. This Court is in agreement with the above courts and their attempts to insure the juvenile's constitutional right to assert the defense of legal insanity at the adjudicatory stage in youth court proceedings. Yet, we note a critical distinction between the juvenile court proceedings in the above noted cases and the transfer hearing in the instant case. Specifically, the transfer hearing is not an adjudicatory state in the juvenile process. The transfer hearing is a pre-adjudicatory proceeding conducted for the purpose of determining whether the juvenile is to be treated as a juvenile or as an adult. Once this determina- tion is resolved, the defense of mental disease or defect excluding responsibility may be asserted at the adjudicatory stage in either the youth court or the district court. Appellant was not denied his constitutional right to assert the insanity defense when the youth court judge failed to allow entry of the plea at the trans- fer hearing. Second, appellant contends the youth court's transfer of the prosecution to the district court was an abuse of discretion. Section 10-1229, R . C . M . 1947, sets forth the criteria to be used by the youth court judge in considering a transfert: "Transfer to criminal court. ( 1 ) After a petition has been filed alleging delinquency the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prose- cution to the district court if: " ( d ) the court finds upon the hearing of all relevant evidence that there are reasonable grounds to believe that: " ( i ) the youth committed the delinquent act alleged; and " ( i i ) the seriousness of the offense and the pro- tection of the community requires treatment of the youth beyond that afforded by juvenile facilities; and " ( i i i ) the alleged offense was committed in an aggressive, violent, or premeditated manner. " ( 2 ) In transferring the matter of prosecution to the district court the court shall also consider the following factors: " ( a ) the sophistication and maturity of the youth, determined by consideration of his home, environmental , situation, and emotional attitude and pattern of living; " ( b ) the record and previous history of the youth, including previous contacts with the youth court, law enforcement agencies, youth courts in other jurisdictions, prior periods of probation and prior commitments to juvenile institutions ; " ( c ) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the youth by the use of procedures, services and facilities currently available to the youth court." Appellant contends the requirements of subsection ( l ) ( d ) ( i ) and subsection ( l ) ( d ) ( i i ) were not satisfied since the state failed to show ( 1 ) that appellant acted purposely or knowingly, i . e . , with the intent to commit an illegal or delinquent act, and ( 2 ) the seriousness of the offense and the protection of the community required that appellant receive treatment other than that afforded by juvenile facilities. It is further argued the youth court failed to consider the provisions set forth in subsection ( 2 ) ( a ) and ( c ) . We do not agree. The record of the transfer hearing shows that six witnesses presented testimony: ( 1 ) a psychiatric social worker employed by Northcentral Montana Community Mental Health Center, who took part in appellant's psychological examination; (2)the police officer who initially investigated the offenses for which appellant is charged; ( 3 ) an aftercare counselor with the de- partment of institutions who had personal knowledge of appellant's juvenile history; ( 4 ) a youth probation officer who had personal knowledge of appellant's police and school records; ( 5 ) the super- intendent of Pine Hills School for Boys, a Montana youth correc- tion institution; and, ( 6 ) the assistant superintendent of the Swan River Youth Camp, a forestry youth camp for young offenders. Based upon the testimony elicited from these witnesses the youth court judge found that appellant had an extensive record of delinquent activities; that he had undergone rehabilitation programs; that there was reasonable grounds to believe appellant committed the offenses charged in an aggressive and violent manner; that appellant was not suffering from a disease or defect of the mind which would preclude criminal responsibility for his conduct; that reasonable grounds existed to believe appellant premeditatedly committed the acts charged against him; that the psychiatric evaluation showed appellant not to be psychotic, but to possess a progressive personality or character disorder of such severity that appellant is virtually without social conscience; that appellant is immature, impulsive, aggressive and dangerous; that Pine Hills School for Boys is inadequate for the purpose of receiving or treating appellant; that the record and prior history of appellant, his emotional attitude and pattern of living, his sophistication, social immaturity and public protection, require handling and treatment other than can be provided by the youth court. We conclude from the record of the transfer proceedings that the youth court did not abuse its discretion in transferring the matter of prosecution pursuant to section 10-1229, R . C . M . 1947. The youth court sufficiently determined, after a proper examination of relevant criteria that it would be in the best interests of the public and the juvenile, for the youth court to waive jurisdiction and transfer the matter of prosecution to the district court. See: Mikulovsky v, State, 54 Wisc.2d 699, 196 N . W . 2 d 748; In re Stevenson, Mont . , 538 P.2d 5, 32 Third, appellant contends the youth court erred when it ordered the transfer of I the attempt charge. Section 10-1229, R . C . M . 1947, sets forth with particularity those matters of prosecution which may be transferred to the district court. " ( a ) * * * the unlawful act is one or more of the following : " ( i ) criminal homicide as defined in section 94-5-101, R . C . M . 1947; " ( i i ) arson as defined in section 94-6-104, R . C . M . 1947; " ( i i i ) aggravated assault as defined in section 94-5- 202, R . C . M . 1947; " ( i v ) robbery as defined in section 94-5-401, R . C . M . 1947 ; ' I ( v ) burglary or aggravated burglary as defined in section 94-6-204, R . C . M . 1947; " ( v i ) sexual intercourse without consent as defined in section 94-5-503, R . C . M . 1947; "(vii) aggravated kidnapping as defined in section 94-5-303, R . C . M . 1947; "(viii) possession of explosives as defined in section 94-6-105, R . C . M . 1947; " ( i x ) criminal sale of dangerous drugs for profit as included in section 54-132, R.C.M. 1947." The statute is clear and unambiguous. This Court fails to find any language in section 10-1229, R . C . M . 1947, which would provide for the transfer of the charge of attempted deliberate homicide. The youth court erred when it ordered the transfer of the attempt charge and such portion of the order is stricken. The judgment of the youth court is affirmed in part and reversed in part, in accordance opinion. We Concur: sitting for Chief Justice Paul G. Hatfield.

March 15, 1977

cfecbb84-3435-4c2a-88a6-552cf23f828a

STANDISH v BUSINESS MEN S ASSUR C

N/A

13527

Montana

Montana Supreme Court

N o . 13527 I N THE SUPREME COURT OF THE STATE O F MONTANA 1977 MELVIN STANDISH, P l a i n t i f f and Respondent, BUSINESS MEN'S ASSURANCE COP'IPANY OF AMERICA, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t , Honorable Jack D. Shanstrom, Judge p r e s i d i n g . Counsel of Record: For Appellant: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Charles F. Angel argued, Bozeman, Montana For Respondent : Bennett and Bennett, Bozeman, Montana Lyman H. Bennett, Jr. argued and Lyman H. Bennett, I11 argued, Bozeman, Montana F i l e d : W R 2 2 ' ' 7 Submitted: March 9, 1977 Decided ' ; 4 R 2 0 r g n Clerk M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court. Defendant appeals from denial of a motion for judgment notwithstanding the verdict by the d i s t r i c t court, Park County. The jury returned a verdict i n favor of p l a i n t i f f Melvin Standish i n the amount of $7,679.32. The p a r t i e s agree t h i s amount i s due, i f there was coverage under the group health insurance policy purchased by Brand S o Lumber Company f o r i t s employees from defendant, Business Men' s Assurance Company of America. O n appeal, the standard of review from a denial of a motion f o r judgment notwithstanding the verdict made pursuant t o Rule 50(b), M.R.Civ.P., i s the same as t h a t f o r review of a motion f o r directed verdict. Sheeketski v. Bortoli, 86 Nev. 704, 475 P.2d 675; 9 Wright & Miller, Federal Practice and Procedure, C i v i l $2524. A directed verdict may be granted only where it appears as a matter of law t h a t p l a i n t i f f cannot recover upon any view of t h e evidence, including the legitimate inferences t o be drawn from ic. Parrish v. W i t t , Mont . , 555 P.2d 741, 742, 33 St. Rep. 999,l,000; Slagsvold v. Johnson, Mont . , 544 P. 2d +42, 443, 32 St.Rep. 1273, 1275, and cases c i t e d therein. Here, the basic question on appeal i s whether p l a i n t i f f was :overed by the group insurance policy. There a r e two aspects to chis question 1) had p l a i n t i f f met the i n i t i a l e l i g i b i l i t y re- quirements, 2) had he been terminated ending policy coverage p r i o r t o the injury. W e f i r s t note t h a t because there was no employee payment o r orher ai'firmative a c t on the p a r t of the employee which i n i t i a t e s coverage, the determination of when coverage began o r when it ends requires inferences from circumstantial evidence. There a r e a number of similarities between the instant case and cases involving the question of coverage under the Worker's Compensation Act or other social legislation, and while both are for the benefit of the employee and paid by the employer, there is a major difference between the two. Worker's Compensation coverage is required by statute, while the group health insurance policy is not. The Worker's Compensation statute is construed to prevent avoidance of the statute. Here the provisions of the insurance policy which must be interpreted. Those provisions in question here are: "An Individual in an eligible class of Individuals shall be eligible for insurance under this policy as follows : " ( b ) on the day following the date the Individual completes one calendar month of membership in an eligible class .I1 The termination provision reads: " ( b ) If an Individual's insurance under this policy is contingent upon employment, the insurance of such Individual shall terminate upon termination of such employment. Cessation of active work shall be deemed termination of employment, except that while an Individual is absent on account of sickness or injury, employment shall be deemed to continue until premium payments for such Individual's insurance are discontinued. At the option of the Policyowner, the insurance of an Individual may be continued during a temporary lay-off but not beyond the end of the policy month following the policy month in which the lay-off starts, or may be continued during an authorized leave of absence granted by the policyowner for reasons other than sickness or injury, but not beyond the period ending three months after such leave of absence starts . ' I The questions to be determined for coverage are ( 1 ) when, if ever, did coverage begin, ( 2 ) was the cessation of active work due to injury, and ( 3 ) if it was, when were the premiums discontinued? There was testimony that plaintiff began work on Brand S Lumber Company projects i n mid-March, 1974. A t that time he was paid by Norman Kelly, who was a construction supervisor for Brand S. Kelly was a full-time emplcoyee of Brand S and he was reimbursed by Brand S for wages he paid t o those who worked for him. During t h i s i n i t i a l period no deductions were made for social security o r taxes from p l a i n t i f f ' s wages. During the f i r s t weeks of May, while Kelly was on vacation, p l a i n t i f f was paid directly by Brand S. In l a t e May, prior t o going t o Colorado on a Brand S e project, Kelly had plaintiff placed on the company's computerized payroll. The crew returned from Colorado on June 26 and both plaintiff and a coworker t e s t i f i e d that p l a i n t i f f worked on June 27. Plaintiff and the coworker t e s t i f i e d t e s t i f i e d they both took that Friday o f f , and the e n t i r e next week as well a s t h e i r July 4 holiday, intending to return t o work a f t e r the vacation. The coworker did return, but p l a i n t i f f injured h i s ankle i n an automobile accident and he reported that he could not return u n t i l it had healed. O n o r about July 30, plaintiff was injured when a .41 magnum gun he was handling f e l l t o the ground, discharged, and wounded p l a i n t i f f i n both legs. Plaintiff t e s t i f i e d he was given notice of h i s termination i n August, while he was s t i l l i n the hospital. Defendant presented evidence t o the effect that the checks paid t o p l a i n t i f f prior t o being put on the Brand S. computer pay- r o l l were just reimbursement checks paid indirectly t o p l a i n t i f f instead of directly. A number of business records were introduced giving June 26 as the termination date. It i s clear most of those records were made a f t e r the July 30 accident, but there was t e s t i - mony t h i s was done without any knowledge of the accident. ' , . 'The insurance 5iil from defendant t o Brand S shows t h a t Brand S had deleted p l a i n t i f f because he had not been employed a s u f f i - clent period of time. This document was a l s o prepared i n e a r l y Xugus t . It i s c l e a r there were factual disputes t o be determined t o find i f there was coverage under the policy. These f a c t u a l questions were decided by the jury i n favor of p l a i n t i f f . It does not appear from the evidence t h a t there was no coverage a s a matter of law and therefore the motion f o r a judgment notwith- standing the verdict was properly denied. P l a i n t i f f ' s argument on punitive damages based on an alleged violation of the d i s a b i l i t y sections of the insurance code i s without merit. Disability insurance was not raised i n the pleadings and throughout h i s p r e t r i a l memorandum p l a i n t i f f speaks only of rnedical b i l l s under the health insurance. There was no c l e a r showing of the existence of d i s a b i l i t y insurance, nor i s there ally showing of the r e q u i s i t e oppression, fraud, o r malice t o bring t h i s case under the r u l e of S t a t e ex r e l . Larson v. D i s t r i c t Court, 149 Mont. 131, 423 P.2d 598. The judgment of the d i s t r i c t court i s affirmed. Me Concur; i I

April 19, 1977

b2cb8c66-bcd3-44ca-aab4-36ae14095def

GRINDE v TINDALL

N/A

13504

Montana

Montana Supreme Court

No. 13504 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 ARTHUR GRINDE , ARTHUR F . WIEDEMAN, LEON JACOBS, JOE C. WICKS, ROBERT L. DISSLY, of the CITY-COUNTY AIRPORT COMMISSION OF THE CITY OF LEWISTOWN and COUNTY OF FERGUS, STATE OF MONTANA, Plaintiffs and Respondents, FRANCIS M. TINDALL and MARIAN B. TINDALL, his wife, Defendants and Appellants. Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellants: Robert L. Johnson, Lewistown, Montana Torger S. Oaas argued, Lewistown, Montana For Respondents : Bradley B. Parrish argued, Lewistown, Montana Submitted: January 26, 1977 Decided: 'APR - 6 19n Filed: 1YFi j 3 j T Clerk M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court. I n a claim and delivery action t r i e d before t h e d i s t r i c t court, Fergus County, without a jury, the court found p l a i n t i f f s a r e e n t i t l e d t o the possession of c e r t a i n property constituting a f u e l tank i n s t a l l a t i o n . Defendants appeal. During World War I1 the United States government constructed and placed a fueling system on land belonging t o Frank and Mary Hruska. The s i t e was adjacent t o the Lewistown A i r Force Base and the government entered i n t o a lease with Hruskas f o r the 7 acres of land upon which the fueling system was located. The lease provided t h a t the structures placed on the land would remain property of the government and could be removed o r otherwise disposed of by the government. I n 1947, the lease was renewed f o r a 10 year period. I n June 1948, the government transferred and quitclaimed the fueling system and the fence surrounding it t o the city-county a i r p o r t commission of the c i t y of Lewistown and county of Fergus, which p l a i n t i f f s herein represent. I n July 1957, t h e commission entered i n t o another lease with Hruskas. Again i n May 1969, an- other lease was entered i n t o with Hruskas similar t o the leases of 1947 and 1957. The 1969 lease was f o r a period of 3 years with an option f o r an additional 3 years. The r e n t a l was $40 per year and Hruskas were paid $75 a t the time of the execution of the 1969 lease. I n June 1970, Hruskas sold c e r t a i n r e a l property t o de- fendants herein Francis and Marian Tindall. This s a l e included the 7 acres leased by p l a i n t i f f commission. I n Y3 of the contract for deed appears t h i s statement: "The Airport Commission leases about 7 Acres i n the South part of S E 114 S W 114 and/or S W 114 SE 114 of said Section 17, and Buyer w i l l take said land subject thereto and he shall be entitled t o a l l rents hereafter paid thereon. The s i x fuel storage tanks and stands thereon are owned by said Commission and they do not go with the land." When the 1969 lease expired the commission attempted t o gain possession of the fueling installation but were refused posses- sion by defendants who contend the fuel tanks are fixtures t o the land. Defendants argue that while the United States govern- ment retained right of removal, the right did not pass t o the commission and even i f it did pass those rights terminated in 1972 when the 1969 lease expired, or i n 1970 when the commission stopped paying rent. While the parties argue the controlling issue i s whether the fueling installation i s real o r personal property, we find the above quoted statement from 13 of the contract for deed controls. However, we w i l l consider the issues raised. Defendants argue section 67-209, R.C.M. 1947, is controlling. However, i n Pritchard Petroleum Co. v. Farmers Co-op, 117 Mont. 467, 161 P.2d 526, t h i s Court in interpreting that s t a t u t e held it t o be merely a rule for general guidance concerning i t s e l f more with ultimate than with probative facts. This Court's cases hold the proper t e s t for determining whether a particular object has become a fixture or not, i s said to comprise (1) annexation t o the realty, (2) an adaption t o the use t o which the realty i s devoted and (3) intent that the object become a permanent accession t o the land. O f these three, the intent of the parties has the most weight and is the controlling factor. Montana E l e c t r i c Co. v. Northern Valley Mining Co., 51 Mont. 266, 153 P. 1017; Sanders v. Butte Motor Co., 142 Mont. 524, 385 P.2d 263; Shipler v. Potomac Copper Co., 69 Mont. 86, 220 P. 1097; Butte E l e c t r i c Ry. Co. v. B r e t t , 80 Mont. 12, 257 P. 478. Considering the evidence before the t r i a l court c l e a r l y t h e i n t e n t of a l l p a r t i e s , prior t o defendants a r r i v a l , was t h a t the fueling system i n s t a l l a t i o n was t o be considered personal property a f t e r it was placed on the Hruska property. Defendants argue the t r i a l court erred i n t h a t it went beyond the agreed statement of f a c t s and included f a c t s i n i t s findings of f a c t s and conclusions of law t h a t came from a deposition taken from Frank Hruska. W e find no merit t o t h i s allegation. True, a deposition was taken from Hruska and included i n the court f i l e , but we note the deposition was properly noticed and when taken no representative of defendants appeared. That f a c t i s not controlling here f o r the general r u l e i s , i n considering an agreed statement of f a c t s , t h a t a court may make any l e g i t i - mate o r reasonable inference o r inferences of which the f a c t s may r i g h t l y be susceptible. The court may draw-the reasonable and legitimate inferences i n the same way and t o the same extent had the f a c t s agreed upon been adduced by the taking of testimony i n open court. 83 C.J.S. Stipulations 3 25, p. 73. When a court f e e l s it needs evidence other than t h a t presented i n the agreed statement of f a c t s t o make a decision, it may r e f e r t o other evidence than the agreed statement i n arriving a t i t s decision. S t a t e ex r e l . Nelson v. D i s t r i c t Court, 107 Mont. 167, 81 P.2d 699; 83 C.J.S. Stipulations 1 25, p. 70. Defendants further argue t h a t even though the f a c i l i t y i s held t o be personal property, the commission i s foreclosed from removing the property by t h e running of t h e 2 year s t a t u t e of limitations a s applied t o recovery of personal property. Not so! Whether o r not the commission ceased t o pay r e n t , and t h i s i s a question, t h i s of i t s e l f does not mean the lease was automatically terminated. The 1969 lease contained no default clause and there was no evidence before the court t h a t defendants terminated o r attempted t o terminate the l e a s e before it expired on April 30, 1972. under W e f i n d l t h e f a c t s t h a t the lease was voidable and not void and the s t a t u t e did not begin t o run u n t i l there was a demand by the commission and a refusal by defendants. Gates v. Powell, 77 Mont. 554, 252 P. 377; I n t e r s t a t e Mfg. Co. v. I n t e r s t a t e Products Co., 146 Mont. 449, 408 P.2d 478; 51 Am J u r 2d, Limita- tions of Actions, $107, p. 680, 4484, p. 959. Judgment of the t r i a l court is affirmed. p r : - 6 Chief J u s t i c e

April 5, 1977

55702080-42d8-4e61-bd76-21b7d5e2013a

STATE EX REL NELSON v DISTRICT CO

N/A

13855

Montana

Montana Supreme Court

No. 13855 I N THE SUPREME COURT OF THE STATE OFBONTANA 1 9 7 7 STATE ex rel. JOHN G. WINSTON, C o u n t y A t t o r n e y , P l a i n t i f f and A p p e l l a n t , THE DISTRICT COURT OF THE SECOND J U D I C I A L DISTRICT OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF BUTTE-SILVER BOW, AND THE HONORABLE JAMES D. FREEBOURN, PRESIDING JUDGE, R e s p o n d e n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For A p p e l l a n t : Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a John G. Winston, C o u n t y A t t o r n e y , B u t t e , M o n t a n a C r a i g P h i l l i p s argued, D e p u t y C o u n t y A t t o r n e y , B u t t e , M o n t a n a For R e s p o n d e n t : H e n n i n g s e n , Purcell and G e n z b e r g e r , B u t t e , M o n t a n a R e x F. H e n n i n g s e n argued and John Jardine argued, B u t t e , M o n t a n a S u b m i t t e d : June 2 2 , 1 9 7 7 D e c i d e d : ,)UL 26 1 9 a Filed: J& 36 1977 mfi)hfk, C l e r k No. 1 3 8 4 4 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 7 STATE OF MONTANA, ex rel. THEODORE NELSON, R e l a t o r , -vs- THE D I S T R I C T COURT OF THE SECOND J U D I C I A L D I S T R I C T OF THE STATE O F MONTANA, I N AND FOR THE COUNTY O F S I L V E R BOW, AND THE HON. JAMES D. FREEBOURN, P R E S I D I N G JUDGE, R e s p o n d e n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For R e l a t o r : H e n n i n g s e n , P u r c e l l & G e n z b e r g e r , B u t t e , M o n t a n a R e x F. H e n n i n g s e n argued and John Jardine argued, B u t t e , M o n t a n a For R e s p o n d e n t : H o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a John G. W i n s t o n , C o u n t y A t t o r n e y , B u t t e , M o n t a n a C r a i g P h i l l i p s argued, D e p u t y C o u n t y A t t o r n e y , B u t t e , M o n t a n a Filed: S u b m i t t e d : June 2 2 , 1 9 7 7 D e c i d e d : Jf# 28 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Defendant Theodore Nelson, charged with t h e crime of d e l i b e r a t e homicide, and t h e s t a t e of Montana, by John G. Winston, County Attorney, S i l v e r B o w County, p e t i t i o n f o r s e p a r a t e w r i t s of supervisory c o n t r o l . Because p e t i t i o n e r s a r e a d v e r s a r i e s i n t h e same criminal proceeding, t h e i s s u e s r a i s e d by t h e s e p e t i t i o n s were combined f o r argument before t h i s Court and both w i l l be decided pursuant t o t h i s opinion. On January 4 , 1977 an Information was f i l e d i n t h e d i s t r i c t c o u r t , S i l v e r B o w County, charging defendant with d e l i b e r a t e homicide under s e c t i o n 94-5-102(1)(a), R.C.M. 1947. Defendant plead not g u i l t y and f i l e d a timely n o t i c e of i n t e n t t o r e l y on t h e a f f i r m a t i v e defense of mental d i s e a s e o r d e f e c t . He was admitted t o b a i l a f t e r examination by William N. Alexander, M.D., whom defendant had h i r e d t o conduct such examination. O n January 17, 1977, pursuant t o s t i p u l a t i o n of counsel, t h e d i s t r i c t c o u r t ordered defendant be admitted t o Warm Springs S t a t e Hospital f o r p s y c h i a t r i c examination and evaluation i n accordance with s e c t i o n 95-505, R.C.M. 1947. Defendant was examined again by D r . Alexander i n h i s c a p a c i t y a s C l i n i c a l D i r e c t o r and Chief of Forensic Medicine a t t h e Montana S t a t e Hospital a t Warm Springs. D r . Alexander submitted h i s r e p o r t t o t h e c o u r t on A p r i l 6 , 1977. The r e p o r t s t a t e d , i n p e r t i n e n t p a r t : " P a t i e n t i s aware of t h e nature of t h e charges a g a i n s t him and i s a b l e t o a s s i s t h i s lawyer i n h i s own defense. He i s a l s o a b l e t o appreciate t h e c r i m i n a l i t y of t h e charges. A t t h e t i m e of t h e i n c i d e n t which l e d t o t h e p r e s e n t charges it i s f e l t t h a t t h e p a t i e n t was unable t o conduct himself according t o t h e requirements of t h e law because he had reached t h e climax of a severe adjustment r e a c t i o n which had temporarily assumed psychotic proportions. A t t h a t p o i n t he was unable t o have a p a r t i c u l a r s t a t e of mind which i s an element of t h e offense charged.* * *" Upon receipt of this report defendant filed a motion for acquittal by reason of mental disease or defect, and a hearing was held. At the hearing Dr. Alexander testified in his opinion defendant was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law at the time of the killing. The state called no rebuttal witnesses, but cross-examined Dr. Alexander extensively regarding the factual basis for his diagnosis and the subjective nature of a psychologi- cal examination. Dr. Alexander stated his diagnosis was based upon the facts surrounding the incident as related to him by defendant, and while he thought defendant was telling the truth, his diagnosis could change if the facts were not as defendant claimed them to be. He also stated it was possible, though unlikely, that his opinion would be disputed by his colleagues. The district court found: "That the question of whether defendant was aware or unaware of his actions or whether he was able or unable to have a particular state of mind at the designated moment is disputable". The court denied the motion for acquittal. Did the district court err in denying defendant's motion for acquittal? Defendant argues that under section 95-503(a), R.C.M. 1947, he need only prove mental disease or defect excluding responsibility by a preponderance of the evidence, and the only evidence before the court, the testimony of Dr. Alexander, clearly establishes this proof. The structure for the procedure in question is set out in section 95-507(1), R.C.M. 1947: "If the report filed under section 95-505 finds that the defendant at the time of the criminal conduct charged suffered from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested by the attorney prosecuting or the defendant, is satisfied that the mental disease or defect was sufficient to exclude responsibility, the court on motion of the defendant shall enter judgment of acquittal on the ground of mental disease or defect excluding responsibility." This Court has previously discussed the purpose of section 95-507(1). In State ex rel. Krutzfeldt v. District Court, 163 Mont. 164, 170, 515 P.2d 1312, the Court noted: "* * * the Revised Commission Comment to section 95- 507, R.C.M. 1947, in regard to subdivision (a), states in part: "'Under subdivision (a) in cases of extreme mental disease or defect where the exclusion of responsibility is clear, trial can be avoided and the defendant immediately com- mitted as irresponsible.' "That comment makes it clear that if, in the judge's opinion and after a hearing if requested by either attorney, a defendant was clearly suffering from mental disease at the time of the crime then the judge can acquit the defendant and have him committed to a state institution forthwith. The purpose is plain--to avoid a costly trial where the mental defect is plain and obvious.* * *" At this stage of the process, the^ the question is not one of the preponderance of the evidence, but whether the exclusion of criminal responsibility due to mental disease or defect is "plain and obvious". If it is not plain and obvious, a trial should be conducted and the trier of fact can determine the preponderance of the evidence. The summary procedure outlined by section 95-507 was never designed to replace the trial where the issue of criminal responsibility is disputable. In Krutzfeldt this Court held this procedure does not preclude a defendant from raising the defense of mental disease or defect at trial. Such a holding would be unnecessary if the standard of proof at the hearing was equivalent to the standard at trial. Defendant argues he is entitled to acquittal as a matter of law under the authority of State ex rel. Main v. District Court, 164 Mont. 501, 525 P.2d 28. Main is deceptively similar to the instant case, but there are critical differences. In Main, relator filed a motion to dismiss on the grounds of mental disease or defect and a hearing was held under section 95-507, R.C.M. 1947. Dr. M. F. Gracia testified relator was not responsible at the time of the criminal conduct charged. The only doubt was cast by another psychiatrist, Dr. Moisey, who testified that, in his opinion, relator was not so mentally disturbed he did not know what he was doing. However, he admitted he was unable to determine relator's state of mind at the time of the incident, and this Court held Dr. Moisey's testimony was thereby rendered incompetent and thus raised no factual issue. There was no doubt cast upon the testimony of Dr. Gracia, except for the incompetent testimony of Dr. Moisey, so relator was entitled to an acquittal as a matter of law. We noted the persuasive basis for Dr. Gracia's opinion in Main: "* * * Dr. Gracia based his opinion on (1) an examination of relator several weeks after the alleged crime; (2) upon extensive psychological testing and medical examination including observation by staff personnel every day for several years; (3) upon the study of relator's social history and history of mental illness dating back to 1962; and (4) the doctor's personal contact with relator beginning in 1966." 164 Mont. 509 In the instant case, by contrast, Dr. Alexander based his opinion on his examination of defendant which lasted six to seven hours in total. While we do not doubt this is adequate for a complete and thorough psychiatric examination, it is a fact Dr. Alexander's findings were largely based on the facts of the occurrence as related to him by defendant. The alleged temporary insanity was admittedly of short duration, and Dr. Alexander testified his diagnosis could change if the facts were not in accord with defendant's version of the incident. For example, this colloquy occurred between the county attorney and Dr. Alexander on cross-examination: "Q. But the question is anyway, the question: Your opinion would change if you knew he had a loaded gun before he got there? A. Yes, sir. "Q. And he's the only one that told you that. You don't know the facts of that do you? A. I do not." We did not hold in Main, and do not intend to hold, that the district judge is absolutely bound by the opinion of an expert testifying on the ultimate issue of mental disease or defect. We do not believe the statute intended to make the examining psychi- atrist into the trier of fact. While State v. Taylor, 158 Mont. 323, 335, 491 P.2d 877, dealt with the release of a defendant from commitment after his sanity was allegedly restored, the reasoning there with regard to the opinion testimony of experts is applicable: "While the determination of defendant's mental condition and his expected behavior, if released, must be on the basis of expert testimony, the trial court could weigh such opinion evidence but he is not bound by it. He could reject it if, in his judgment, the reasons given for the testi- money were unsound." 158 Mont. 335 In the instant case, while the opinion of Dr. Alexander is uncontradicted by any other testimony, the district judge could properly have found his opinion was based upon determinations of fact which were for a jury to determine. Therefore, the existence of mental defect at the time of the incident was not so "plain and obvious" as to require an acquittal at this stage of the proceeding. Accordingly,the district court's denial of defendant's motion for acquittal is affirmed. The state in its application for a writ of supervisory control alleges that the trial court abused its discretion by its denial of the state's motions for: (1) The examination of defendant by another psychiatrist; (2) the listing of additional witnesses on the Information; and (3) a continuance until July 15, 1977, due to the unavailability of key witnesses. The continuance issue would appear to be moot at this time and will not be discussed. Defendant argues the issues raised by the state do not fall within section 95-2403, R.C.M. 1947, governing the scope of appeal by the state in a criminal case. An application for a writ of supervisory control before this Court is an original proceeding and not an appeal. Jurisdiction is not denied by the fact the relator has no right to an appeal. Defendant's jurisdictional argument is without merit. The state seeks an examination of defendant by another qualified psychiatrist under the authority of section 95-507(2), R.C.M. 1947: "When either the defendant or the state wishes the defendant to be examined by a qualified psychiatrist or other expert, selected by the one proposing the examination, the examiner shall be permitted to have reasonable access to the defendant for the purpose of the examination." This is expanded upon by the Revised Commission Comment to the original section 95-507: "Subdivision (b) [now subdivision (2) ] allows both the prosecution and defense access to the defendant for purposes of psychiatric examinations. The sheriff or warden must make the defendant accessible for such examinations. The number of times the defendant must be made accessible for such examina- tions will rest in the discretion of the court." Despite the fact this statute expressly gives the prosecu- tion or the defense the right to an examination of defendant, defense counsel argue the title of section 95-507 restricts the benefit of the statute to defendant. The title is: "Determination of irresponsibility on basis of report -- access to defendant by psychiatrist of his own choice -- form of expert testimony when the issue of responsibility is tried." Defendant's imaginative argument is that allowing a psychiatrist o f the state's choice to have access to defendant would violate Art. V, section 11(3), 1972 Montana Constitution, which states: "Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void." This provision obviously refers to acts or bills, but does not refer to sections within each act. The title of the act creating section 95-507 is contained in the Laws of 1967, Chap. 196, and states: "An Act Creating a Montana Code of Criminal Procedure to Codify and Generally Revise the Statutes Which Govern Court Procedures in Criminal Matters." Section 95-507 was amended by the Laws of 1974, Chap. 120, entitled: "AN ACT FOR THE CODIFICATION AND GENERAL REVISION OF THE LAWS RELATING TO THE DEPARTMENT OF INSTITUTIONS." Patently these acts were codifications and general revisions and possessed adequate titles. The constitutional provision requiring acts to have complete titles has never been applied to the sec- tions within each act, and defendant has cited no authority. Alternatively, defendant argues section 95-507(2) allows not a substantive psychiatric examination but merely an inquiry into the procedure and credibility of the psychiatrist who reported under section 95-505. The plain language of section 95-507(2) and the Revised Commission Comment however, refer to a psychiatric examination of the defendant. The purpose of subsection (2) be- comes clear in subsection (3) of section 95-507, which states in pertinent part: "* * * both the prosecution and the defense may summon any other qualified psychiatrist [other than the reporting psychiatrist who was appointed under section 95-5051 or other expert to testify, but no one who has not examined the defendant is competent to testify to an expert opinion with respect to the mental con- dition or responsibility of the defendant, as dis- tinguished from the validity of the procedure followed by, or the general scientific propositions stated by another witness." Clearly, any psychiatrist or other expert may testify regarding defendant's mental condition or responsibility provided the psychiatrist has examined the defendant. Subsection (2) allows for such an examination by either the prosecution or the defense. The remaining question is whether the trial court abused its discretion in refusing to allow an examination of defendant by a psychiatrist other than Dr. Alexander, since the number of additional examinations allowed under section 95-507 is within the discretion of the trial court. Revised Commission Comment, section 95-507, R.C.M. 1947. There are two main considerations: 1. Prior to examining defendant pursuant to stipulation of counsel, Dr. Alexander was hired by defendant to examine him for purposes of bail. This at least raises a conflict of interest. 2. The district court found Dr. Alexander's conclusions to be "disputable". If the conclusions of the only expert who has examined defendant are found to be disputable, it would appear to be sensible to allow at least one other psychiatrist to examine and either confirm or dispute the findings of the initial expert. In light of these circumstances, we hold the district court abused its discretion in refusing to allow access to the defendant by a psychiatrist, in addition to Dr. Alexander. The state also seeks reversal of the denial by the district court of the state's motion, made six days before the trial was to commence, to add to the Information the names of approximately twenty witnesses. The state alleges these witnesses were dis- covered after the original Information was filed and are necessary to prove the state's case in light of defendant's affirmative defense of mental disease or defect. Section 95-1503(d), R.C.M. 1947 states: "If the charge is by information or indictment, it shall include endorsed thereon, the names of the witnesses for the state, if known." Also applicable is section 95-1803(a) (1) (2), R.C.M. 1947: "In all criminal cases originally triable in dis- trict court the following rules shall apply: " (a) List of Witnesses: "(1) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and file with the clerk of the court at the time of arraignment, a list of witnesses intended to be called by the prosecution. The prosecution may, any time after arraignment, add to the list the names of any additional witnesses, upon a showing of good cause. The list shall include the names and addresses of the witnesses. " (2) The requirement of subsection (a) (1) , of this section, shall not apply to rebuttal witnesses." The proper procedure to be followed when the state moves to list additional witnesses is set out in State v. Klein, Mont . "The court should first determine whether the need for the additional witnesses and the reason for their not being disclosed earlier is a 'substantial reason'. It should then determine whether there is prejudice based on surprise and whether this surprise can be overcome by the granting of a continuance. If the surprise element can be overcome by a continuance, then the witnesses should be endorsed and the continuance granted. The spirit and intent of the law is that the names and addresses of potential witnesses should be disclosed as soon as they are known. " Here, the state claims and the defense does not deny the witnesses are material to the question of defendant's responsibility and they were unknown to the state at the time the Information was filed. The defense claims prejudice in that on the one hand, it would have no time to prepare for trial if the witnesses were added, and on the other hand, if a continuance were granted, defen- dant would be prejudiced by an unnecessary delay. Defendant cannot have it both ways. If good cause to list the additional witnesses is shown, as here, and if any prejudice caused by defendant's surprise can be overcome by the granting of a continuance, the additional witnesses should be listed. The district court's denial of the state's motion to list additional witnesses is reversed. Finally, the state asks this Court, to rule on an issue collateral to those in its petition for a writ of supervisory control for the reason that the issue might arise at trial, if the state was denied a psychiatric examination of defendant. This issue is not properly before the Court and the state's motion is denied. In summary, the district court's denial of defendant's motion for acquittal is affirmed. The district court's denial of the state's motions for a psychiatric examination and to list addi- tional witnesses on the Information is reversed. The cause is remanded to the district court with instructions to allow for a psychiatric examination of defendant and to allow the listing of the additional witnesses on the Information pursuant to the state's motion. n Justices

July 26, 1977

c03ea579-73b9-45ce-b47e-07ec4115fcab

Detra v. Bartoletti

150 Mont. 210, 433 P.2d 485

11240

Montana

Montana Supreme Court

433 P.2d 485 (1967) 150 Mont. 210 Angelina DETRA, also known as Angie Detra, Josephine Jerman, formerly known as Josephine Svaldi, sometimes known as Josephine Savoldi, and Marcella Mirabella, Plaintiffs and Appellants, v. Edward A. BARTOLETTI, Louis Bartoletti, and Edward A. Bartoletti, as administrator of the Estate of Eddie Bartoletti, deceased, Defendants and Respondents. No. 11240. Supreme Court of Montana. Submitted September 12, 1967. Decided November 6, 1967. Holland and Holland, and Leonard J. Haxby, David Holland (argued), Butte, for appellants. Corette, Smith, Dean and Robischon, Kendrick Smith (argued), Butte, for respondents. *486 JAMES T. HARRISON, Chief Justice. This is an appeal from a judgment entered on a verdict for the defendants in an action brought in the District Court of Silver Bow County to recover money and personal property allegedly belonging to the estate of Eddie Bartoletti, deceased. The action was brought by the sisters of the decedent against Louis Bartoletti, the brother of the decedent, and Dr. Edward A. Bartoletti, the son of Louis Bartoletti, in his individual capacity and as administrator of the estate. Eddie Bartoletti died in 1963. He had never married. Louis Bartoletti and Eddie Bartoletti had been engaged in various businesses together for approximately 33 years in and around Butte, Montana, and Las Vegas, Nevada. In their business no record was ever kept of the amount each took out of the business, they each just took what they needed. The decedent could neither read nor write English, although he could write his name. The last business of the two brothers was the Acoma Lounge, Inc., in Butte, Montana. Each brother originally had a one-third interest in the corporation. The remaining one-third was owned by James Troglia. After the death of Eddie Bartoletti, Louis Bartoletti produce the certificates covering the shares of Eddie Bartoletti in the Acoma Lounge, Inc., stock on which the assignments had been executed by Eddie Bartoletti to Louis Bartoletti. Louis Bartoletti testified that in October of 1960 his brother Eddie, the decedent, in the kitchen of a house located at 3500 Wilson Street in Butte, Montana, at a time when he and the decedent were alone in the kitchen, the decedent handed him a will and the Acoma Lounge stock and that the decedent then stated: "This is yours, remember this. Everything is yours if something happens to me. And he handed me the stocks and said this is yours, if anything happens I want you to have everything." This stock was not included in the estate of the decedent. The will that Louis Bartoletti mentioned as being given to him devised Eddie's real property to Louis, and divided the residue of the estate into four equal parts, one-fourth to Louis and one-fourth to each of three sisters. This disposition would not support the alleged conversation between decedent and his brother Louis as before related. Evidence was introduced to show that after this alleged gift the decedent remained a director of the corporation; that he actually worked in the business of the corporation after the alleged gift; and that decedent and his brother Louis purchased the Acoma Hotel at sometime previous to April of 1961 under a contract and on April 17, 1961, the brothers paid off the seller's equity in the contract, amounting to the sum of $24,873.83. Louis Bartoletti testified that he told no one of the alleged gift except James Troglia, until after the death of Eddie. Troglia denied that he ever told him about it or that he ever heard anything about it until after the death of decedent. From this recitation it is apparent that the alleged gift of the Acoma corporate stock rests entirely upon the unsupported testimony of the donee, Louis. Contra to this is the undisputed continued business activity of the deceased Eddie. More will be said about this later in the discussion of the issues. While the decedent knew nothing about the stock market, his nephew, Dr. Bartoletti, helped him with some investments in the stock market. Although he did not have a power of attorney to handle the transactions of his uncle, Dr. Bartoletti had complete discretion to buy and sell his uncle's stock Eddie Bartoletti had signed some stock certificates in blank and given them to his nephew, Dr. Bartoletti, to facilitate sales. In August 1963, while the decedent was in the hospital following a second operation for a brain tumor, Dr. Bartoletti, while visiting him in the hospital, told the decedent that there were a lot of medical bills and that he was going to sell the stock to pay these bills. At that time he had the decedent sign some shares with an "X" for the decedent had lost the power to write, was paralyzed in the right side and had lost the *487 power of speech. Dr. Bartoletti testified that the decedent could make himself understood by nodding his head and by squeezing the Doctor's hand. Hospital records indicated that the decedent was given heavy sedation during the entire month of August of 1963. Dr. Bartoletti sold the stock, some of which had been signed in blank and some with an "X." The proceeds of the stock, $4,449.45, he then turned over to his father, Louis Bartoletti. Approximately two weeks later Dr. Bartoletti filed a petition to have the decedent declared an incompetent, but Eddie Bartoletti died before the petition was acted upon. After Eddie Bartoletti's death Louis Bartoletti submitted a claim against the estate for medical expenses he claimed to have paid for the decedent. This claim was approved by the administrator of the estate, Dr. Bartoletti. It does not appear that any credit was given for or that any portion of the proceeds of the sale of stock went to pay any medical bills of the decedent. Decedent received $118 per month from disability coverage under Social Security but Louis Bartoletti did not recall when his brother started to draw such payments. There also was mention of Blue Cross and Blue Shield payments but no definite amounts were provided. This suit was brought to recover the one-third stock interest in the Acoma Lounge, Inc., and the proceeds of the sale of stock for the estate of Eddie Bartoletti. The defendants contend that the transfers to Louis Bartoletti were gifts. The jury found for the defendants. The appellants claim basically two issues on this appeal. The first contended issue is that the court should not have given the following instruction to the jury, to-wit: "You are instructed that where there is a transfer between persons having a close blood relationship, or near relatives, such a transfer is presumed to be a gift." The second is that the defendant did not prove that the transfers were gifts with clear, convincing, strong and satisfactory evidence. As suggested heretofore, as to the Acoma Lounge stock, without the donee's testimony as to the assignment of the stock certificates, no evidence was produced as to the gift. Necessarily then, the instruction complained of in issue number one, that a presumption of a gift arose, was most important. Then too, issues number one and two became interwoven because the burden of proof shifted if such a presumption of gift arose. As to the first contention the presumption of gifts between close relatives was first adopted by this court in the case of Clary v. Fleming, 60 Mont. 246, 198 P. 546 (1921). It has subsequently been applied in many Montana cases. Bast v. Bast, 68 Mont. 69, 217 P. 345 (1923); McQuay v. McQuay, 81 Mont. 311, 263 P. 683 (1928); Roman v. Albert, 81 Mont. 393, 264 P. 115 (1928); Humbird v. Arnet, 99 Mont. 499, 44 P.2d 756 (1935); McLaughlin v. Corcoran, 104 Mont. 590, 69 P.2d 597 (1937); Bingham v. National Bank of Montana, 105 Mont. 159, 72 P.2d 90 (1937); Lewis v. Lewis, 109 Mont. 42, 94 P.2d 211 (1939); Lewis v. Bowman, 113 Mont. 68, 121 P.2d 162 (1942); Emery v. Emery, 122 Mont. 201, 200 P.2d 251 (1948); In re Kuhr's Estate, 123 Mont. 593, 220 P.2d 83 (1950); Marans v. Newland, 141 Mont. 32, 374 P.2d 721 (1962). It should be noted before we proceed further than at its inception in Montana, the presumption was more restrictive than the court's instruction stated. Clary v. Fleming, supra, dealt with a situation where a husband paid certain sums of money to purchase a lot; that no consideration was paid by the wife; that the deed was issued to the wife under an agreement that the wife would convey the lot to the husband at any time upon his request. The husband and wife were later divorced, the wife died, and the action was brought by *488 her administrator to eject the former husband from the lot. The defendant relied upon section 4538, Revised Codes of 1907, now section 86-103, R.C.M. 1947, which reads: "When a transfer of real property is made to one person, and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." In discussing this statute this court in the Clary case, 60 Mont. at 250, 198 P. at 547, stated: "This statutory provision is merely a restatement of the common law; for it has been held from time immemorial that, as a general rule, if one person takes to himself the title of property purchased with the money of another, he takes it charged with a trust in favor of the one who furnished in consideration. This provision is intended to reach those cases whereby one party has violated the confidence or trust reposed in him by another and in buying property has taken title to himself, or wrongfully retained title, when, as a matter of fact, he had no interest therein. It is intended as a protection to the one who makes the actual investment against any fraudulent dealing on the part of one who may be acting for him in the matter. There are, however, exceptions to the rule as stated. If the property is purchased by one with his own money, and the title is placed by him in another to whom he stands in a confidential relation, such as husband, wife, parent, child or such other relation that one may naturally have a claim upon the bounty of the other, then the presumption is that the conveyance is made as a gift." (Emphasis ours.) Turning to the situation apparent in this case from the evidence, what claim did Louis Bartoletti have upon the bounty of his brother, Eddie? The evidence is clear that they both took from the assets of their undertakings such cash as they each needed, no effort was made to account to each other in any manner. Louis had a family, educated his son, Dr. Bartoletti, as a dentist; Eddie had no similar family expense. In all the cases in which it has been applied in this jurisdiction, the purported gifts have been within relationships of husband and wife or parent and child. No cases have arisen involving siblings, and from our obesrvations heretofore there is here no satisfactory convincing proof that the sibling relationship is such as to establish Louis as a natural object of the bounty of Eddie. Other jurisdictions have dealt with cases involving brothers and sisters. Irvine v. Minshull, 60 Colo. 112, 152 P. 1150; In re Campbell's Estate, 274 Pa. 546, 118 A. 547 (1922) and Harris v. McIntyre, 118 Ill. 275, 8 N.E. 182, are all cases in which the courts rejected the presumption between brothers and sisters. In re Campbell's Estate is significant in that the court rejected the presumption between brothers and then found that the party asserting the gift had carried his burden of proof and established the gift. We find that the line of cases rejecting the presumption when the transfer is between brothers are the better reasoned decisions. The determining question is whether with proof of the sibling relationship and no further evidence, logic and experience would say the transfer was intended to be a gift. We cannot answer yes to that question. In the husband-wife and parent-child relationships if there was no evidence except the status of the parties it would be the unusual case where a gift was not intended. Although in many of the transfers between brothers and sisters a gift may be intended, this court is not prepared to hold that it is only the unusual case in which a gift is not intended. The presumption of gift which applies to transfers between husband and wife and parent and child is rebuttable and only carries the burden of proof of the party asserting the gift. At best the sibling relationship should only be one of the factors to be taken into account in determining whether the party asserting the gift has carried his burden of proof. We therefore hold that the presumption does not apply to transfers between siblings. *489 The second contention on this appeal is whether in the absence of the presumption the defendants have carried their burden of proof. The general rule is that the burden of establishing the gift is on the donee. Lyons v. Freshman, 124 Mont. 485, 226 P.2d 775. Where the defendants allege in their answer that the articles in question were given by the decedent the burden of establishing the fact is on the defendants. Stagg v. Stagg, 90 Mont. 180, 187, 300 P. 359. The burden is one of establishing the gift by clear, convincing, strong and satisfactory evidence. It is to be done with more than a mere preponderance of the evidence. In re Brown's Estate, 122 Mont. 451, 206 P.2d 816. We find that the defendant has not proved with clear, convincing, strong and satisfactory evidence that the decedent, Eddie Bartoletti, intended to make a gift to Louis Bartoletti of the one-third interest in the Acoma Lounge, Inc. There were no witnesses to the transaction. The alleged transfer was not disclosed by Louis Bartoletti until approximately three years after the purported gift and then only after the death of Eddie Bartoletti, the purported donor. Louis Bartoletti states he told no one about the gift except James Troglia. James Troglia denies being told. Eddie Bartoletti and Louis Bartoletti had such a confidential relationship that there are other possible explanations for the possession by Louis of the signed stock certificates. These possibilities were not satisfactorily negated by defendants' evidence. 24 Am.Jur., Gifts, §§ 49, 132, 133. As we have heretofore observed, the second contention is necessarily interwoven with the first. Because we have found that the instruction complained of was improper, our discussion of the proof concerned with the second issue is directed to the new trial required in this cause. As to the proceeds of the sale of stock of $4,449.45, the defendants did not establish with clear, convincing, strong and satisfactory evidence that a gift was intended. According to the testimony of Dr. Bartoletti the amount was supposed to be used to pay medical bills. Since the medical bills were paid by the estate and not by Louis Bartoletti this tends to dispute the testimony of Dr. Bartoletti. One further point remains. The plaintiffs contend that the court erred in failing to give the jury the following instruction: "You are instructed that a director of a Montana corporation must be a stockholder of said corporation." This statement is what our statute, section 15-401, R.C.M. 1947, says. It provides in part: "The corporate powers, business, and property of all corporations formed under this title must be exercised, conducted and controlled by a board of not less than three (3) directors, to be elected from among the holders of stock * * *. Directors of corporations for profit must be holders of stock therein * * *." The instruction should have been given. As appears from our discussions heretofore this case presents issues which should be decided by a jury under proper instructions from the court, and because of the errors in the giving and refusing of the instructions the judgment must be reversed and a new trial granted. It is so ordered. HASWELL, ADAIR, CASTLES and JOHN CONWAY HARRISON JJ., concur.

November 6, 1967

62172557-d16a-4c9e-ac6e-54933082d7d1

DANIELSON WARD v DANIELSON NEU

N/A

13549

Montana

Montana Supreme Court

No. 13549 I N T H E SUPREME C O U R T OF T H E STATE O F M O N T A N A 1977 H E R M A N 0. DANIELSON and JUNE DANIELSON WARD, P l a i n t i f f s and Respondents, -vs- DAN DANIELSON and W A Y N E NEU, Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t , Hon. L. C. Gulbrandson, Judge p r e s i d i n g . Counsel of Record: For Appellant: V. G. Koch argued, Sidney, Montana For Respondents: Cresap and P h i l l i p s , Sidney, Montana Richard G. P h i l l i p s argued, Sidney, Montana Submitted: January 24, 1977 Decided: 1 0 1977 - - - - A M r . Justice Frank I. Haswell delivered the Opinion of the Court. The owners of a t r a c t of land i n Richland County secured a permanent injunction restraining the holder of a l i f e e s t a t e therein from selling and removing gravel from the premises. The l i f e tenant appeals. Plaintiffs Herman 0. Danielson and June Danielson Ward, owners of the land, are the adult issue of defendant Dan Danielson, holder of a l i f e estate i n the land. The other defendant, Wayne Neu, has been hauling and removing gravel from the land for com- mercial purposes under an agreement with defendant Dan Danielson. The father purchased the land with h i s own funds and offered h i s son and daughter t i t l e t o a portion thereof on certain conditions. One of the conditions was that he would have the right t o use the land as he saw f i t during h i s lifetime. The s e l l e r conveyed the t r a c t directly t o the son and daughter. They i n turn conveyed a l i f e estate i n the land back t o t h e i r father, granting him "the right to use, a s he may deem f i t , and t o receive the in- come and proceeds" from the land for h i s lifetime. O n March 29, 1976 the son and daughter commenced an action against t h e i r father and Neu t o permanently enjoin them from removing gravel from the premises. A hearing was held i n the d i s t r i c t court, Richland County, without a jury on M a y 19, 1976. O n July 7, 1976, the d i s t r i c t court entered i t s findings of fact and conclusions of law i n favor of the son and daughter and permanently enjoined the father and Neu from selling and removing gravel from the premises. The d i s t r i c t court found that a t the time of creation of the l i f e estate and a t the time the father went into possession of the land thereunder, the premises was used only as grazing land and there was no commercial gravel pit in operation thereon. The district court also found the father had only a life estate in the premises "giving him the right to use said premises for the purposes for which it was reasonably being used at the time of creation of the life estate and to receive the income and pro- ceeds therefrom, but that such right does not include the right to sell and remove gravel from the premises or operate a commer- cial gravel pit thereon." After finding the son and daughter had no adequate remedy at law, the district court perpetually enjoined and restrained the father and Neu "from selling and removing gravel from the above described premises." The father alone appeals. Three issues are assigned for review on appeal: ( 1 ) Did the district court err in not considering the language of the life estate reservation "as he may deem fit" and in refusing to permit the father to explain the term. ( 2 ) Was the district court's finding that plaintiffs have no adequate remedy at law error? ( 3 ) Sufficiency of the evidence to support the district court's finding that at the time the father acquired the life estate and went into possession thereunder, the premises were only used as grazing land and there was no commercial gravel pit in operation thereon; and that the findings and conclusions are not supported by the evidence and the law and do not support the restraining order. The first issue is determinative of this appeal. The father was granted a life estate in the land under a written instrument granting him the right to use the premises "as he may deem fit" and to receive the income and profits during his life- time . This language grants the life tenant the unqualified use of the premises during his lifetime. The grant is unambiguous. It means what it says. It requires no interpretation. Under such circumstances, the controlling Montana statutes read: "Intention to be ascertained from language. The language of a contract is to govern its interpretation, - - if the language is clear and explicit, and does not involve an absurdity." Section 13-704, R.C.M. 1947. "Interpretation of written contracts. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this chapter." Section 13-705, R.C.M. 1947. It is clear from Montana cases that where the language of a written contract is clear and unambiguous there is nothing for the court to construe; the duty of the court is simply to apply the*language as written to the facts of the case, and decide the case accordingly. Nelson v. Combined Insurance Co., 155 Mont. 105, 467 P.2d 707; Matteucci's Super Save v. Hustad Corp., 158 Mont. 311, 491 P.2d 705. In such case, the court may not receive extrinsic evidence in aid of interpretation. Hill Cattle Corporation v. Killorn, 79 Mont. 327, 256 P. 497. If such extrinsic evidence is none- theless admitted without objection, the evidence must be dis- regarded. First National Bank of Plains v. Soil Conservation District, 130 Mont. 1, 293 P.2d 289. While it is within the province of the court to interpret contracts which are open to interpretation, the court cannot make new contracts for the parties, or alter or amend the contract the parties themselves have made. Emerson-Brantingham Implement Co. v. Raugstad, 65 Mont. 297, 211 P. 305. The governing statute, section 93-401-15, R.C.M. 1947, expresses this principle in this language : "Construction of statutes and instruments--general rule. In the construction of a * * * instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted * * *." Here the district court imposed a restriction on the use of the premises by the life tenant that the parties themselves did not include in the written instrument creating the life estate. The district court limited the use of the land to "the purposes for which it was reasonably being used at the time of creation of the life estate" and prohibited operation of a commercial gravel pit on the premises. This was reversible error under a grant to the life tenant to use the premises "as he may deem fit" and granting him the income of the land for life. Under the language of the grant of the life estate, we need not consider the "open mining doctrine" as it would not change the result. The order and judgment of the district court is reversed. The findings and conclusions are amended in conformity with this opinion. The injunction is vacated and judgment entered for de- fendants. - , 4 Just ice.

February 18, 1977

1ab0acb2-dfea-4584-b65a-dc418076ffb9

WHITNEY v BAILS

N/A

13355

Montana

Montana Supreme Court

No. 13355 I N THE SUPREME COURT OF THE STATE OF MONTANA RUSSELL C. WHITNGY, JR., d/b/a Double 4 Cattle Company, and Julia S. Whitney, his wife, Plaintiffs and Appellants, RICHARD J. BAILS and PATRICIA J. BAILS, husband and wife, Defendants and Respondents. Appeal from: District Court of the Eighteenth Judicial District Honorable W. W. Lessley, Judge presidina Counsel of Record: For Appellants: Corette, Smith and Dean, Butte, Montana Dolphy Pohlman argued, Butte, Montana For Respondents : Berg, Angel, Andriolo & Morffan, Bozeman, Montana Ben E. Berg argued, Bozeman, Montana Hibbs, Sweeney and Colberg, Billings, Montana Submitted: January 10, 1977 Decided : fIRR 7 '1971 Filed: !I>,~; , . r ,/ [ -. M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court. I n an action f o r declaratory judgment the d i s t r i c t court, G a l l a t i n County,found p l a i n t i f f Whitney e n t i t l e d t o cancellation of two contracts f o r deed. The action involved the successive s a l e of a ranch by contract f o r deed, with each succeeding contract assuming t h e prior contracts. Pete Tocci & Son Inc. was the o r i g i n a l owner f o r the purposes of these contracts. I n 1969, Tocci sold t h e ranch t o McGregor f o r $500,000. I n March 1971 McGregor sold t o Blome f o r $650,000. I n August 1972 B l t m e sold t o Whitney, p l a i n t i f f here, f o r $425,000. I n September 1973 Whitney sold t o Gar f o r $740,000. Gar sold t o B a i l s , defendant here, f o r $750,000 i n July 1974. I n December 1974 Bails missed a payment, t h e b a s i s f o r default. In April a f t e r t h e contractural notices were served, t h i s action was f i l e d against a l l p a r t i e s t o a l l t h e contracts t o determine t h e r i g h t s of the p a r t i e s . By s t i p u l a t i o n a l l contracts up t o and including Blome t o Whitney were found ,, t o be i n f u l l force. By the same process, Gar was dismissed from t h e action with prejudice. A t r i a l without jury t o determine t h e r i g h t s a s between p l a i n t i f f and Bails, t h e l a s t remaining defendant, was had before Hon. W.W. Lessley. H i s decision i s appealed by p l a i n t i f f . The appeal r a i s e s two questions: 1) W h o owns the crops harvested by Bails during t h i s l i t i g a t i o n ? 2) What is the measure of damages? The crops involved are the grain crop, straw crop, and the irrigated seed hay crop. Kester v. Amon,.81 Mont. 1, 9, 261 P. 288, states the rule in Montana: "* * * when an occupant of lands plants, cultivates and harvests crops during the term of his occupation, they are his personal property, whether he occupied the land as a purchaser, a tenant, or a mere trespasser holding the land adversely to the real owner, and whether he came into possession of the land lawfully or not, provided he remain in possession until after the crops are harvested." There could be no fact situation more extreme than that in Kester where the grain was cut after the sheriff, pursuant to \ a writ of assistance, had taken possession of the land. Hamilton v. Rock, 121 Mont. 245, 191 P.2d 663, states the rule in Kester but found it inapplicable to native grasses and trees which do not owe their existence to the trespasser. Here, the crops were planted, work was done by Bails or persons paid by him, and harvested long before the court ordered the change in possession. The crops therefore belong, as the court ordered, to defendant Bails. The second issue concerns the measure of damages. Section 17-301, R . C . M . 1947, states: "Measure of damages for breach of contract. For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will com- pensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things, would be likely to result therefrom." (Emphasis supplied.) Section 17-307, R.C.M. 1947, sets out the specific measure of damages for breach of an agreement to buy real property: "Breach of agreement to buy real property. The detri- ment caused by the breach of an agreement to purchase an estate in real property is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him." This express provision was discussed by this Court in Wyatt v. School District No. 104, 148 Mont. 83, 88, 89, 417 P.2d 221. The interpretation of California Civil Code $3307, identical to section 17-307, R.C.M. 1947, was used by analogy to interpret another provision of Chapter 3, Title 17, R.C.M. 1947, on the question of whether the provisions of that section were the exclu- sive measure of damages. In Wyatt the Court found the sections of title 17 were not exclusive basing its decision in part on Royer v. Carter, 37 Cal.2d 544, 233 P.2d 539, where the California Court said: ' I ' * * * vendee's breach may make it necessary for the vendor to incur additional expenses to realize the benefit of his bargain. * * * When such additional expenses are the natural consequence of the breach, they may be recovered in addition to those provided for in section 3307.' (Emphasis supplied.)" This Court then set out the reason for this ruling: "* * * the statutes are to be regarded as guides in the estimation of damages to be recovered, and that the respondent should receive a sum which, when added to the benefits already received under the contract, will give her an economic status identical to that which she would have enjoyed had the contract been performed .I1 In Wiseman v. Holt, 163 Mont. 387, 517 P.2d 711, a similar question was raised. In Wiseman the Court again referring to Royer, the California case, found an instruction offered by the defendant was incorrect because it set the maximum damages recover- able to those provided in section 17-307, R.C.M. 1947. The Court explained that the philosophy of contract damages was to allow those damages which would return the damaged party to an economic status identical t o that which would have been enjoyed had the contract been performed and t h i s policy would be violated i f certain additional damages were not allowed. W e disagree and overrule our holding i n Wiseman a s t o additional damages. Here, even a f t e r deducting the f u l l amount of the alleged damages from the market price a t the time of the breach, the seller i s substantially better off than he would have been had the con- t r a ~ t been performed. The d i s t r i c t court made detailed and specific findings t o t h i s effect. This result i s clearly contemplated by section 17-307: "The detriment caused by the breach of an agreement t o purchase an estate i n r e a l property is deemed t o be the excess, i f any, of the amount which would have been due t o the s e l l e r , under the contract, over the value of the property t o him," (Emphasis supplied.) This measure of damages may seem harsh because it does not allow recovery for harm done t o the land, but the effect i s that the s e l l e r of the land gets a l l he bargained for a t the t i m e he irre- trievably parted with .the land. Plaintiff argues damages are due because the waste provision of the contract was violated. P l a W f f has a right t o tfie return of the r e a l property only i f the contract i s breached. The measure of damages for the breach of a contract for the sale of r e a l property i s that s e t out i n section 17-307, R.C.M. 1947, The damage done may be used, a s it was here, t o reduce the market value of the land but it may not be used, a s urged here, t o allow damages where none would be due under the statutory measure. The judgment of the d i s t r i c t court i s affirmed. Justice. W e concur: K" T / 7 -L'- , . e i , " ..-" Chief J u s t i c e . \ Yustices. U

March 7, 1977

1a34d41d-0894-4126-99ec-544df202af86

GUTHRIE v DEPT OF SOCIAL REHABI

N/A

13317

Montana

Montana Supreme Court

No. 13317 IN THE SUPREME COURT OF THE STATE OF MONTANA RALPH GUTHRIE GERTRUDE GUTHRIE, husband and wife, d/b/a Guthrie Centers Company, Plaintiffs and Respondents, DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES OF THE STATE OF MONTANA, Defendant and Appellant. Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Thomas H. Mahan argued, Helena, Montana For Respondents: Smith, Smith and Sewell, Helena, Montana Chadwick H. Smith argued, Helena, Montana Submitted: January 20, 1977 Decided: Filed : APR 2 1 195T Clerk M r . J u s t i c e Gene B. Daly delivered the Opinion of the Court. The Department of Social and Rehabilitation Services of the s t a t e of Montana (SRS) appeals from the order of the d i s t r i c t court, Lewis and Clark County, granting p l a i n t i f f s ' motion f o r summary judgment. P l a i n t i f f s sought a declaratory judgment under section 93-8901, R.C.M. 1947, and a determination of reasonable costs and p r o f i t allowance allegedly due them. P l a i n t i f f s , doing business a s Guthrie Centers Company, own and operate the Libby Convalescent Center, a nursing home located i n Libby, Montana, licensed by the s t a t e of Montana t o provide s k i l l e d nursing care and related services t o i t s residents. The Center commenced operation i n February 1971, and has been under ~ d ~ r t r a c t with SRS since March 1971 t o provide s k i l l e d and i n t e r - mediate nursing home care t o welfare recipients. The f i r s t contract which p l a i n t i f f s executed with SRS, d a t i ~ l e d Annual Agreement, provided t h a t p l a i n t i f f s would receive $12.00 per day f o r each patient requiring s k i l l e d nursing care and $10.00 per day f o r each patient requiring intermediate care f o r the period March 1, 1971 through February 29, 1972. The contract <stated the r a t e s would be reevalua t ~ d annually, o r upon receipt o r bona f i d e evidence indicating costs had varied a minimum of 10X o r more, within the limitations and a v a i l a b i l i t y of SRS funds. This contract was executed i n compliance with SRS'S "GUIDELINES FUK R E I M B U R S E M E N T F O R SKILLED NURSING HOME CARE AND INTERMEDIATE CAKE B A S E D ON R E A S O N A B L E COST", e f f e c t i v e June 1, 1970, which provided t h a t new f a c i l i t i e s , commencing operation where no cost data was available, would be afforded a negotiated interim r a t e subject t o subsequent review, based on reasonable c o s t s , a f t e r a minimum period of s i x months operation and a minimum of 80% occupancy. O n August 15, 1971, the government i n i t i a t e d Phase I of i t s bconomic S t a b i l i z a t i o n Program. SRS, purportedly i n compliance with the wage-price freeze, refrained from increasing the r a t e s f o r nursing home care. O n July 1, 1972, upon removal of wage-price r e s t r i c t i o n s , SRS increased the r a t e f o r s k i l l e d nursing care t o $13.31 per day and increased the r a t e f o r intermediate care t o $12.30 per day. Subsequent t o the increase i n r a t e s and removal of wage-price r e s t r i c t i o n s , the p a r t i e s entered i n t o a second agreement f o r nursing home care covering the period December 22, 1972 through December 22, 1973. O n May 1, 1973, SRS again increased the r a t e s for nursing home care t o $14.27 per day f o r s k i l l e d care and $13.24 per day f o r intermediate care. These increased r a t e s were main- tained f o r the remainder of the time period contemplated i n the instant s u i t . SRS contends these r a t e s a r e the same r a t e s plain- t i f f s charged t h e i r private patients. O n November 29, 1974, p l a i n t i f f s f i l e d a complaint i n the district court seeking (1) a determination of p l a i n t i f f ' s r i g h t s pursuant t o the agreements between the p a r t i e s , s t a t u t e s and r u l e s and, (2) a determination of reasonable costs and p r o f i t allowance due p l a i n t i f f s f o r the period March 1, 1971 through December 31, 1973. Subsequently, p l a i n t i f f s f i l e d a motion f o r summary judgment, granted by the d i s t r i c t court and entered on December 31, 1975. The controlling issue on appeal i s whether the entry of suliunary judgment f o r p l a i n t i f f s was e r r o r . W e find the granting 01 summary judgment was e r r o r . The judgment i s vacated and the cause remanded t o the d i s t r i c t court f o r further proceedings. Rule 56(c), M.R.Civ.P., states that summary judgment shall be rendered only i f : "* * * the pleadings, depositions, answers to interroga- tories, and admissions on f i l e show that there i s no genuine issue as t o any material fact and that the moving party i s entitled to a judgment as a matter of law." The general purpose underlying Rule 56, M.R.Civ.P., i s t o promptly dispose of actions which have no genuine issue of f a c t , thereby encouraging judicial economy through the elimination of unnecessary t r i a l , delay and expense. Silloway v. Jorgenson, 146 Mont. 307, 406 P.2d 167. Nev-ertheless, summary judgment i s not a substitute for a t r i a l . Johnson v. Johnson, Mont . Y P.2d Y 34 St.Rep. 162. See: Harland v. Anderson, Mont . > 548 P.2d 613, 33 St.Rep. 363, for a discussion of summary judgment under Rule 56(c), M.R.Civ.P. The grounds upon which the d i s t r i c t court granted p l a i n t i f f s ' motion for summary judgment were: 1. There was no genuine issue as t o any material fact. 2. Financial statements and cost reports were timely sub- mitted by plaintiffs. 3. The Libby Convalescent Center reached an 80% patient capacity by the end of the 1971 calendar year, a f t e r more than s i x months operation. 4. Plaintiffs were entitled to review and adjustment of the interim daily reimbursement rates based upon p l a i n t i f f s ' reasonable costs as shown by t h e i r financial statements and cost reports. 5. The Federal Economic Stabilization Program did not prevent SRS from increasing rates as a result of the increase i n the size of the p l a i n t i f f s ' work force and increased outlay for supplies and equipment a t stabilized wages and prices. 6. Reimbursement rates for providing nursing home services t o m$dicaid patients were not limited t o the r a t e p l a i n t i f f s charged private patients a t the Libby Convalescent Center i n 1971, 1972 and 1973, such reasonable costs being limited by the amount p l a i n t i f f s charged private patients i n 1974, i.e. $16.00 per day for skilled nursing care and $15.00 per day for inter- mediate carer - . 7. That p l a i n t i f f s were entitled t o judgment a s a matter of law. The d i s t r i c t court then concluded, as a matter of law: a) That SRS Guidelines for Reimbursement provided for retro- active r a t e increases; b) p l a i n t i f f s were entitled t o a r a t e increase a f t e r s i x months operation, since the Libby Convalescent Center was opera- ting a t 80% occupancy and had incurred increased costs of operation; and c) reasonable reimbursement rates for nursing home care for welfare recipients could exceed those rates charged private patients i n the years 1971,1972 and 1973. Plaintiffs contend the d i s t r i c t court correctly granted summary judgment a s a matter of law and should be affirmed on appeal. One of the principal disagreements between the parties i s whether reimbursement rates can be increased and given retroactive effect. SRS contends the original contract between the parties provided a negotiated interim rate which was t o be reevaluated annually or upon receipt of bona fide evidence establishing a variation of costs by a minimum of 10%. Lee v. Laitinen, 152 Mont. 230, 4 4 8 ~ . 2 d 154. SRS argues once reevaluation occurred any increase in rates would apply prospectively with the exception of the 60 day period allowed for the filing of financial state- ments and cost reports. Plaintiffs, on the other hand, contend the SRS Guidelines for Reimbursement and the second contract provide for fiscal retroactive treatment of rate increases. The applicable language of the contract reads: "* * * Reports received after 60 days will forfeiture any right for retroactive increase to the beginning of your fiscal year." Since this language standing alone does not appear to'support the conclusion that rate- increases could be retroacti'vely applied to prior fiscal years, a genuine issue as to a material fact re- mains unresolved and therefore evidence should be taken concerning the intent of the contracting parties at the time the agreement was executed and past business practices involving rate increases and their effect. Kober & Kyriss v. Billings Deac.Hosp., 148 Mont. 117, 417 P.2d 476. Second, SRS questions the determination that the Libby Convalescent Center was operating at 8 0 % occupancy and thus entitled to a rate increase. SRS contends the 8 0 % ,occupancy level pertained to each individual class of service, not the total occupancy level of the facility. Plaintiffs, in their answers to request for admissions, stated the occupancy level for skilled nursing care at the Libby Convalescent Center never reached 80% for the three years in question. Plaintiffs contend that total occupancy level controls and they are only able to satisfy the 8 0 % ,occupancy level by combining the occupancy level of skilled nursing with the occupany level of intermediate care. T-he Guidelines for Reimbursement provides: "* * * New facilities commencing operations for which no cost data is available will be afforded a negotiated interim rate subject to subsequent review based on reasonable costs after a minimum period of six months operation and a minimum of 80 ~ercent occupancy.'' (Emphasis added. ) The general language of the Guidelines for Reimbursement is open to interpretation when coupled with the consideration that rates for nursing care are increased for specific levels of care and not for care in toto. SRS should have been allowed the opportunity to present evidence construing the meaning of "80 percent occupancy". Gropp v. Lotton, 160 Mont. 415, 503 P.2d 661. A third issue resolved by the district court was the question of whether reimbursement rates for nursing home care could exceed the rates charged private patients at the Libby Convalescent Center. A genuine and material question of fact arises as to the reason- ableness of rates for the nursing care of welfare recipients when those rates exceed the rates charged private patients. Genuine: issues of material fact remain that have not been resolved and plaintiffs are not entitled to summary judgment as a matter of law, therefore this action is remanded to the district court for further proceedings consistent with this opinion. I Justice We Concur:

April 20, 1977

96871901-ca19-4247-afcb-097837530397

CAMPBELL v JENNE

N/A

13409

Montana

Montana Supreme Court

No. 13409 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 DIANE V. CAMPBELL, formerly DIANE V. JENNE, Plaintiff and Petitioner, SHERMAN G. JENNE, Defendant and Respondent. Appeal from Fourth Judicial District Court Honorable E . Gardner Brownlee, Judge Presiding. Counsel of Record: For Appellant: Milodragovich, Dale & Dye, Missoula Harold V. Dye argued, Missoula, Montana For Respondent: Douglas G. Harkin, Co. Atty., Hamilton Douglas G. Harkin argued, Hamilton, Montana -- Submitted: January 17, 1977 Decided: APR 2 9 1 9 7 ; F Filed: &PR d 9 ;9T/ Mr. Justice Frank I. Haswell delivered the Opinion of the Court. In an action by the mother of two minor children to enforce a $100 monthly child support award in a 1967 Nevada divorce decree, the district court of Missoula County held that the Nevada award was modified by later support orders of $40 monthly in a 1969 Idaho Uniform Reciprocal Enforcement of Support Act proceeding and in a 1973 Montana Uniform Reciprocal Enforcement of Support Act proceeding and computed the arrearage accordingly. The mother appeals. The parties were married on September 1, 1961. Two children were born as issue of the marriage: Sherman William Jenne, born May 3, 1962 and Marjorie Jane Jenne, born October 17, 1964. Respondent father, Sherman G. Jenne sued appellant mother for divorce in Nevada and the mother was personally served with summons outside the state of Nevada. On February 11, 1967, a Nevada district court granted the father a default divorce, awarded custody of the two minor children to the mother, and ordered the father to pay $100 per month child support to the mother. In 1969 an action by the mother against the father, under the URESA came before the district court of Kootenai County, Idaho. The mother did not appear personally but was represented by the prosecuting attorney while the father appeared personally without an attorney but representing himself. The father testified and was examined by the prosecuting attorney and by the court. On March 7, 1969, the Idaho district court entered an order that the father pay the mother $40 monthly as child support. The 1967 Nevada decree awarding $100 monthly child support was not mentioned in the Idaho order. In 1973 a URESA action by the mother against the father came before the district court of Missoula County, Montana. The mother was represented by t h e deputy county a t t o r n e y and t h e f a t h e r appeared personally and by h i s attorney. The f a t h e r t e s t i f i e d . O n September 17, 1973, t h e Montana d i s t r i c t c o u r t entered an "order of support" r e q u i r i n g t h e f a t h e r t o pay $40 monthly c h i l d support t o t h e c l e r k of c o u r t t o be t r a n s f e r r e d t o t h e c l e r k of c o u r t i n Kootenai County, Idaho, f o r c r e d i t t o h i s account t h e r e under t h e Idaho U R E S A a c t i o n . N o mention was made of t h e p r i o r Nevada support award of $100 monthly. Thereafter t h e mother commenced a c i v i l a c t i o n i n t h e d i s t r i c t c o u r t of Missoula County, Montana, t o enforce t h e 1967 Nevada support award of $100 monthly. The f a t h e r counterclaimed f o r custody of t h e minor c h i l d r e n but d i d not r e q u e s t modifi- c a t i o n of t h e 1967 Nevada c h i l d support award. The c a s e was submitted on s t i p u l a t e d f a c t s and t h e c a l c u l a t i o n s of each p a r t y concerning t h e amount of c h i l d support a c t u a l l y paid by t h e f a t h e r s i n c e t h e Nevada decree, which d i f f e r e d only t o t h e e x t e n t of $100. On May 4 , 1976, t h e d i s t r i c t c o u r t granted judgment t o t h e mother i n t h e amount of $2,400, t h e a r r e a r a g e due a s computed by t h e f a t h e r . I n e f f e c t , t h e d i s t r i c t c o u r t held t h a t t h e Nevada award had been modified and reduced by t h e l a t e r o r d e r s i n t h e Idaho and Montana U R E S A a c t i o n s . The mother appeals, contending t h e d i s t r i c t c o u r t e r r e d i n d e t e r - mining such modification and reduction. The underlying i s s u e on appeal i s whether t h e Nevada decree awarding t h e mother $100 monthly c h i l d support was modi- f i e d and reduced by t h e l a t e r support o r d e r s of t h e Idaho and Montana c o u r t s i n t h e U R E S A a c t i o n . The Nevada c o u r t had personal j u r i s d i c t i o n over t h e f a t h e r and j u r i s d i c t i o n of t h e s u b j e c t matter. Its decree grant- ing a divorce t o t h e f a t h e r , custody of t h e minor c h i l d r e n t o t h e mother, and ordering t h e f a t h e r t o pay $100 monthly c h i l d support was valid in Nevada. Accordingly, the Nevada decree is entitled to full faith and credit in the courts of Idaho and Montana. Art. IV, Sec. 1, United States Constitution; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L Ed 279; Corkill v . Cloninger, 153 Mont. 142, 454 P.2d 911. The Nevada child support award was not modified by the 1969 URESA child support order of the Idaho court. At that time the original URESA was in effect in Idaho which specifically provided : "No order of support issued by a court of this state when actinq as respondinq state shall supersede any other order of support but the amounts for a particular period paid pursuant to either order shall be credited against the anount accruing or accrued for the same period under both." (Emphasis added.) Section 7-1075, Idaho Codes. The Idaho Supreme Court specifically held that under the original URESA the original divorce decree was not modified: "The Uniform Reciprocal Enforcement of Support Act, Chapter 10, Title 7, I.C. provides an auxiliary or supplemental remedy for the en- forcement of orders of support. It is, of course, true that the amount of the payments ordered by the court of the responding state is influenced by the ability of the husband at that time to pay, but the authority of the court originally ordering payment is not affected or is its order modified by an order of the court of the re- sponding state fixing another or different sum. (Emphasis added.) Despain v. Despain, 78 Idaho 185, 300 P.2d 500, cited with approval in Howard v. Howard, (Miss. 1966), 191 S.2d 528; Oglesby v. Oglesby, 29 Utah 2d 419, 510 P.2d 1106. Nor was the 1967 Nevada child support award modified by the 1973 URESA child support order of the Montana court. At that time the original URESA provision had been repealed in Montana and the following provision enacted: "A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court." (Emphasis added.) Section 93-2601-71, R.C.M. 1947. URESA support orders that do not refer to prior support awards do not modify them. In accord: Banton v. Mathers, (1nd.App. 3rd Dist. 1974), 309 N.E.2d 167; Craft v. Hertz, (N.D. 1970), 182 N.W.2d 293. Thus, the 1967 Nevada decree ordering the husband to pay $100 per month child support remained valid and unmodified and was entitled to full faith and credit by the courts of Montana. The contentions of the husband that because the Nevada court had continuing jurisdiction to modify its child support order, Montana courts possessed reciprocal and continuing juris- diction to do likewise and did in fact exercise its jurisdic- tion by reducing the amount of support owed is rejected as contrary to the facts. The Montana court could have done so by a specific provision to that effect in its order but did not do so as that question was neither litigated nor decided. The order of the Montana court made no reference to the Nevada de- cree and did not purport to modify it. The judgment of the district court is reversed. Judg- ment is entered for plaintiff and appellant Diane J. Campbell in the amount of $7,540, representing the arrearage under the Nevada decree. Justice

April 29, 1977

21f074fc-de8c-4c1d-92c1-42bea985337f

SOLIE v SOLIE

N/A

13310

Montana

Montana Supreme Court

No. 13310 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 MURIEL R. SOLIE, Plaintiff and Respondent, -vs- ROBERT L. SOLIE, Defendant and Appellant. Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: ~ibbs, Sweeney and Colburg, Billings, Montana For Respondent: Jones, Olsen and Christensen, Billi.ngs, Montana Paul G. Olsen argued, Billings, Montana The matter is deemed submitted on briefs. Submitted: January 26, 1977 Decided : MAR 1 0 1971 M r . J u s t i c e Gene B. Daly delivered the Opinion of the Court. This i s an appeal by Robert L. Solie, the f a t h e r , from a f i n a l modified judgment of the d i s t r i c t cnurt, Musselshell County, denying h i s request f o r increased v i s i t a t i o n r i g h t s with h i s minor child Peter and granting t h e cross-petition of Muriel Solie, the mother, f o r reduction of Robert's v i s i t a t i o n r i g h t s , increase of support and attorney fees. Muriel was granted a divorce from Robert on February 3 , 1969. The decree incorporated a property settlement agreement whereby Muriel received Robert's i n t e r e s t i n the family home, subject t o a mortgage, alimony i n t h e amount of $250 per month through September 1, 1971, support of $100 per month f o r each of the two minor children, Suzanne age 9 years and Peter age 2 years, attorney fees, the family c a r and s a t i s f a c t i o n of a l l other obligations of the parties. I n addition, Robert agreed t o maintain a policy of l i f e insurance of $50,000 upon h i s l i f e with the children a s beneficiaries. Robert Solie i s a 39 year old insurance man with supervisory duties t h a t require h i s absence from home several days a week. His new wife Ann i s a school teacher and together they have an income of $33,270. They have a 4 bedroom, 2 story home on 10 acres of ground i n Emerald H i l l s near Billings, Montana and can provide horseback riding, sledding, swimming and other a c t i v i t i e s associated with r u r a l living. Residing i n the home a r e Suzanne, now age 15 (daughter of p a r t i e s hereto); Jeffrey age 7 (Ann's by previous marriage); and Jennifer, age 4 , the daughter of Robert and h i s new wife Ann. Muriel i s a 36 year old school teacher with her Master's degree and working on a Doctor's by taking several c l a s s e s a quarter at Eastern Montana College, BLllings, Montana. She has not remarried and lives in the small home she obtained in the divorce property settlement, with son Peter, now aged 9 years, the subject of this litigation. Her income is a gross of $11,500 per year, or $680 take home per month for 10 months. She has $400 in the Teacher's Credit Union saved for expenses during the two months she receives no salary and a bank balance of $70. She drives a 1967 Pontiac automobile. She purchased a TV for the children just last year for $1.00. Since the divorce in 1969 Robert has failed to meet his financial obligation in regard to support and has been delinquent most of the time. This has created a stormy and hostile atmosphere with several contempt proceedings, numerous execution writs, etc. from 1970 until the present. On June 21, 1971, the district court found it necessary to limit the visitation rights of %bert after hearing his petition for increased visitation. In its order the court stated: "* * * the Court deems it necessary that some firm direction be gi'ven to petitioner---defendant's visitation privileges * * *." In December 1978, the court agreed to again approve increased visitation for Robert which was rewarded in 1975 with a less than straightf6mrd maneuver by Robert to gain full custody of daughter Suzanne. The record further reveals a serious alienation has developed between Muriel and her daughter since custody went to Robert, which was evidencing itself during the custodial change. On January 2, 1976, Robert filed a petition to increase his temporary custody rights with the minor son Peter to include 7 alternate holidays, 6 weeks during the summer in addition to alter- nate weekends from Friday to Sunday. Muriel filed her cross-petition January 9, 1976 asking for a $50 per month increase in support for Peter and alleging Peter does not enjoy visitation at Robert's residence and asked for a decrease in visitation rights to Robert to one weekend a month, rather than the two now in effect and attorney fees in the amount The matter was heard on January 12, 1976 and the court filed its modified decree on March 3, 1976. After extensive findings of fact, the court made conclusions of law that the best interest of the minor child Peter Solie, so that there would be no mental or emotional detriment,would be best served by reduction ofthe visitation right to one weekend per month; granted the increase in child support to Muriel and awarded her $250 attorney fees. From this modified decree Robert appeals. The issue presented for review is the application of the facts of this case to the Uniform Marriage and Divorce Act, section 48-337, R.C.M. 1947, which establishes the statutory standard for limitation of noncustodial parent's visitation. The Uniform Marriage and Divorce Act does apply to this matter. Section 48-341(3), R . C . M . 1947; Richard W. Holm v. Allena V. Holm, Mont . 2 P.2d , 34 St. Rep. 118, decided March 2, 1977. Section 48-337, R . C . M . 1947, provides in pertinent part: "(2) The Court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." Here Robert argues that "The court did not find, nor could it find on the evidence presented, that the current v i s i t a - tion schedule would endanger seriously Peter Solie's physical, mental, moral or emotional health. Rather the court i n Conclusion of Law No. 1 applied the 'best interest of child' rationale i n . concluding that visitation should be reduced. That t e s t i s clearly not applicable to a reduction i n visitation." H e further argues t h i s Court has not previously considered or interpreted the language contained i n section 48-337, R.C.M. 1947, and c i t e s the Court t o a Colorado decision that very briefly alluded t o the problem, but does not disclose any evidence i n that case. H e further quotes from the Commissioners' Note directed to the "Act" under $407, 9 U.L.A. p. -509, which i s the same a s section 48-337, R.C.M. 1947: "* * * Although the standard i s necessarily somewhat vague, it was deliberately chosen t o indicate i t s stringency when compared to the 'best interest' standard traditionally applied to t h i s problem. The special standard was chosen t o prevent the denial of visita,tion t o noncustodial parent on the basis of moral judgments about parental behavior which have no relevance t o the parent's interest i n o r capacity t o maintain a close and benign relationship t o the child. The same onerous standard i s applicable when custodial parent t r i e s t o have the noncustodial parent's visitation privileges restricted o r eliminated." (Emphasis suppli-ed. ) The reference t o parental behavior i n the Commissioners' Note i s pointed a t the Uniform Marriage and Divorce Act $402 which was not adopted by Montana. The exact pertinent language i n 6402 is: "The Court shall not consider conduct of a proposed custodian that does not affect h i s relationship t o the child." See: 37 Montana Law Review, No. 1, p. 129. However, t h i s Court moved away from that type of moral judgment sometime ago. Foss v. Leifer, - Mont . , 550 P.2d 1309, 33 St. Rep. 528, 530. The standard of physical, moral, mental o r emotional health used i n the Act does not introduce any new concepts into the law a s it has existed i n Montana for many years. See: Section 91-4515, R.C.M. 1947 (repealed i n 1975 by the adoption of the Uniform Marriage and Divorce Act); Gilmore v. Gilmore, 166 Mont. 47, 530 P.2d 480; Gilbert v. Gilbert, 166 Mont. 312, 316, 533 P.2d 1079; I n r e Adoption of Biery, 164 Mont. 353, 522 P.2d 1377 and cases cited therein. Therefore, no interpretation of the new statute i s required. Further, the standard announced i n the Montana cases cited above, and most recently i n Gilbert is: "This Court also recognizes the superior position of the t r i a l judge i n such matters and w i l l not disturb the t r i a l court's findings unless there i s a mistake of law o r a finding of fact not supported by credible evidence that would amount t o a clear abuse of discretion." Here, we do not find abuse of discretion or mistake of law i n the record a s it stands, however, we do not have available t o us the e n t i r e record. Both parties agree important discussions were had by the t r i a l judge i n chambers with the parents together and with counsel and then with the children, with counsel present. There were no objections placed i n the record before us t o the lack of a record of these proceedings. Section 48-334(1), R.C.M. W e find substantial evidence i n the record t o support the increase i n child support i n the amount of $50 per month. The mother's testimony that her costs had increased $75 per month since the father took f u l l custody of Suzanne was not refuted. The fact she has no funds except for Credit Union savings which must apply to expenses during the two months she receives no salary was not questioned. The lack of ability to pay attorney fees is not questioned. Robert complains that Muriel's financial picture was not sufficiently explored yet we find no issue presented that this opportunity was denied to counsel. This Court is mindful of its holding on attorney fees in First Security Bank of Bozeman v. Tholkes, Mont . , 547 P.2d 1328, 33 St. Rep. 341. Yet no useful purpose will be sewed to require a hearing on reasonable- ness when only a nominal fee of $250 was ordered paid for the contested custody proceehings. The judgment of the district court is ,affirmed. We concur: L. Justices. Mr. Justice Daniel J. Shea dissenting in part and concurring in part: I concur in the result reached as to visitation and child support but not in all that is stated on these matters. However, I dissent to this Court allowing an attorney's fee of $250 as entered by the trial court, without proof of the value of the attorney's fee; I do not question that the fee set by the trial court was a reasonable one, but if we are going to follow the recent case of First Security Bank of Bozeman v. Tholkes, Mont . , 547 P.2d 1328, 33 St.Rep. 341 (decided March 30, 1976), then the district court should take evidence on the value of the attorney's fee before determining the amount. This would be a relatively simple procedure. A fee that is considered nominal to one party to a lawsuit could well be considered astronomical to the opposing party. That is precisely why there should be a hearing.

March 10, 1977

81623f72-5f96-4228-8968-4955f4b34511

Williams v. INSURAMCE COMPANY OF NORTH AMERICA

434 P.2d 395

11348

Montana

Montana Supreme Court

434 P.2d 395 (1967) Abe O. WILLIAMS, Plaintiff and Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Respondent. No. 11348. Supreme Court of Montana. Submitted October 16, 1967. Decided December 1, 1967. Rehearing denied December 20, 1967. *396 Richard J. Conklin (argued), White Sulphur Springs, for appellant. Anderson, Symmes, Forbes, Peete &amp; Brown, Sam E. Haddon (argued), Billings, for respondent. JOHN C. HARRISON, Justice This is an appeal from a summary judgment entered for defendant dismissing the complaint on the merits. The cause was heard in the district court at White Sulphur Springs, the Honorable Nat Allen, District Judge, presiding, sitting without a jury. On February 15, 1963, the defendant issued to the plaintiff a certificate of insurance under a group policy insuring members of the group, including the plaintiff, against accidental total disability; the benefits being 60 percent of the base weekly salary, subject to a maximum of $150.00, less any benefits collectible under the Workmen's Compensation Act, and disability benefits applicable to the employee under the United States Social Security Act. The effective date and policy term commenced on February 15, 1963, and continued to the same date in 1964, and monthly thereafter on the payment of the premiums. The premiums were paid by the insured, here the plaintiff, through payroll deductions by the policy holder, the plaintiff's employer. The plaintiff has paid his premiums, the rate of which had not been altered, and the policy was in force at all times material here. On July 25, 1964, the plaintiff was injured in an industrial accident, as a result of which it now appears that he is totally disabled. However, the defendant reserves the right to reopen this matter at some time in the future should the plaintiff cease to be totally disabled. Commencing on July 25, 1964, under the terms of the policy defendant started to make payments to plaintiff in the sum of $290.76 per month and payments of this amount per month continued to February 22, 1966. In figuring the amount to be paid to plaintiff under the policy, the defendant could properly deduct any benefits collected under the Workmen's Compensation Act. At the time of the injury the plaintiff was entitled to a weekly benefit under Workmen's Compensation of $45.00 per week. Subsequently, on a minor dependent attaining the age of 18 years, the plaintiff's compensation payments were reduced to $40.00 per week. At that time, the defendant properly increased the amount of its payment to take into consideration the reduction in Workmen's Compensation benefits. *397 At the time the disability occurred plaintiff was not entitled to Social Security benefits and on application in November of 1964 he was denied any benefits under the then existing Social Security Act. In September of 1965, the United States Social Security Act was amended and a new benefit created whereby plaintiff became eligible to and did receive in February of 1966 Social Security benefits which were not in existence at the time of the injury. In February of 1966, the plaintiff received $1,488.70 in a lump sum, for eligibility prior to February of 1965, under the terms of the new Social Security Act. In addition, under the terms of this new Act, plaintiff now receives a monthly disability benefit in the sum of $131.70. The defendant has refused to continue payment under the terms of the insurance contract until a total credit for the lump sum benefit received by the plaintiff offsets their weekly obligation, and refuses to make payment without a deduction of the $131.70 monthly disability benefits received by the plaintiff as a result of the new amendments to the Social Security Act. The issue presented to the trial court and to this court on appeal is whether the defendant is within its rights in deducting from its payments to plaintiff the amount plaintiff now receives under Social Security because of the amendment which went into effect after the plaintiff was injured. Research by the court and by counsel for both parties has failed to reveal any statutory or judicial authority which is factually in point. Fortunately, however, in this particular case the answer comes readily to hand. The trial court found that the controversy could be solved by looking to the contract of insurance itself and we agree. The law in Montana applicable to the construction of insurance contracts is well-settled. When there is an uncertainty or ambiguity in the contract it will be construed liberally in favor of the insured and most strictly against the insurer. Ambiguity does not exist just because a claimant says so, but only when the contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations. If the intention of the parties is clear from the language of the contract this intention is to be carried out. Courts have no authority to change the contract, or to disregard the express language used. For a discussion of the Montana law on this subject see Niewoehner v. Western Life Insurance Co., 149 Mont. 57, 422 P.2d 644; Kansas City Fire &amp; Marine Insurance Co. v. Clark, 217 F. Supp. 231 (D.C.Mont., 1963), affirmed 9 Cir., 329 F.2d 647. The clause in the contract stating the indemnity and amount of insurance provided by the contract states: "Benefit Amount: 60% of base weekly salary subject to a maximum of $150 less any benefits collectible under the Workmen's Compensation Act and primary disability benefits applicable to the Employee only under Social Security. "Elimination Period: 28 days "Maximum Payment Period: Lifetime" Looking at the contract as a whole and in particular the provision set out above we find that there is no ambiguity. The purpose of the contract was to insure that the plaintiff would receive 60 percent of his base weekly pay up to $150.00 per week even if he were totally disabled. In order to accomplish this it was set out that benefits collectible by the plaintiff under Workmen's Compensation and Social Security are to be added together and the difference between the sum of these and 60 percent of plaintiff's base weekly pay is to be paid by the defendant up to a maximum of $150.00 per week. This result was reached when the defendant increased its payments when the plaintiff's Workmen's Compensation benefits were reduced, and it is also the result following from the judgment of the district court. It was not the purpose of the contract to set a doller amount that the defendant would pay if the plaintiff were injured, *398 but rather to insure that plaintiff would receive a certain percentage of his pay on becoming disabled. Under the district court's ruling plaintiff receives 60 percent of his base weekly pay and this is what the language of his insurance policy says he should receive. In view of the foregoing we find that the other matters raised by the plaintiff on appeal are without merit as he is receiving his due under the contract. We find that the judgment entered in the district court is correct and it is affirmed. JAMES T. HARRISON, C. J., and HASWELL, ADAIR and CASTLES, JJ., concur.

December 1, 1967

f895adcc-46fc-4742-8c70-31938fd41266

GUTHRIE JR v MONTANA DEPT OF H

N/A

13600

Montana

Montana Supreme Court

No. 13600 IN THE SUPREME COURT OF THE STATE OF MONTANA A. B. GUTHRIE, JR., ALICE GLEASON; KENNETH GLEASON; and MONTANA WILDERNESS ASSOCIATION, Plaintiffs and Respondents, -vs- MONTANA DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES, Defendants and Appellants, BOARD OF COUNTY COMMISSIONERS, TETON COUNTY; J. R. CRABTREE; JAMES K. CRAWFORD; and ROBERT W. JENSEN, Defendants. Appeal from: District Court of the First Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellants: Church, Karris, Johnson and Williams, Great Falls, Montana M. 0 . Wordal argued, Great Falls, Montana G. Steven Brown, Helena, Montana Stan Bradshaw argued, Helena, Montana Charles M. Joslyn, County Attorney, argued, Choteau, Montana For Respondents: James H. Goetz argued, Bozeman, Montana Peter M. Meloy, Helena, Montana Gregory L. Curtis, Choteau, Montana Filed: MAR 13 1977 Submitted: January 13, 1977 Decided : MAR 1 5 19i7 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from denial of a motion for change of venue in an action for an injunction in the district court,Lewis and Clark County. Plaintiffs in the action are A.B. Guthrie, Jr.; Alice and Kenneth Gleason; and the Montana Wilderness Association. Guthrie alleges he owns land about two miles from the proposed Arrowleaf West Subdivision, "takes general aesthetic appreciation of the area" and "engages in horseback riding, hiking and fishing in the general area". Alice and Kenneth Gleason allege they own a dude ranch about a mile from the proposed development and they earn their livelihood from the dude ranch. They allege they engage in "general recreational pursuits such as hiking, riding, fishing, and hunting." Gleasons also allege their livelihood is "dependent upon the said area remaining aesthetically pleasing, sparsely populated, generally undeveloped, and well populated with fish and wildlife ." The Montana Wilderness Association alleges that about eight of its members reside in Teton County and that numerous members "make general recreational, aesthetic, and environmental use of the public lands and certain of the private lands in the general vicinity of the proposed Arrowleaf West Subdivision." Defendants in the action for injunction are: J. R . Crabtree, James M. Crawford, and Robert W . Jensen, owners and developers of the proposed subdivision which is to consist of weekend re- creatkonal second homes; the Teton County Commissioners; and the Montana Department of Health and Environmental Sciences. The relief requested is an injunction. Plaintiffs set out three basic reasons for this relief: 1 ) They allege the Montana Department of Health and Environmental Sciences' act of lifting the sanitary restrictions imposed by statute to force compliance .-:w%ths. health and sanitation laws constitutes a recommendation or report on proposals for projects, programs for projects, programs, legis- lation and other major actions of state government significantly affecting the quality of the human environment, therefore the Department must do an environmental impact statement. It is alleged no environmental impact statement was prepared and until one is prepared, the sanitary restrictions may not be legally lifted. 2) Plaintiffs allege the Teton County Commissioners did not comply with the Subdivision and Platting Act in that they did not ( a ) give proper notice, ( b ) hold the required public hearing, nor ( c ) make the findings required. 3) Plaintiffs allege the individuals _named as defendants are proceeding to physically alter the land illegally because they are acting pursuant to permission granted by the alleged illegal acts of the Department and the Teton County Commissioners and that such physical alteration is doing irreparable harm to plaintiffb! interests. Plaintiffs' complaint asks that defendants be prohibited from proceeding with actions which would physically alter the character of their land until the Department complies with its statutory duties and the Teton County Commissioners comply with their statutory duties. It also requests a mandatory injunction ordering reinstatement of the sanftary restrictions and with- drawal of the approval of the plat. A temporary injunction was requested and granted. At the time of this appeal, the statusd of the matter dss this : The complaint was filed and amended. Judge Bennett was disqualified and Judge Brownlee assumed jurisdiction. Defendants filed their motion for change of venue which was briefed and submitted to the district court, which denied the motion in these words : "It appears to the Court that any trial upon the factual questions based upon the actual impact of the proposed subdivision in Teton County should properly be held in Teton County; however,it appears to this Court that the Complaint charges the Department of Health with not performing their statutory duties, and it further appears to the Court that venue for such a charge is properly in Lewis and Clark County. * * * " Two statutory sections are involved. Section 93-2902(2), R.C.M. 1947, provides: "Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: "2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office; or against a person who, by his command or in his aid, does anything touching the duties of such officer." Section 93-2906(1), R.C.M. 1947, provides: "The court or judge must, on motion, change the place of trial in the following cases: "1. When the county designated in the complaint is not the proper county." Plaintiffs argue refusal to grant a motion for change venue is within the sound discretion of the district court. This is true of motions under subsections 2 and 3 of section 93-2906 which are clearly discretionary in their terms: Subsection 2 provides: ' "When there is reason to believe that an impartial trial cannot be had therein * * * . I ' Subsection 3 provides: "When the convenience of witnesses and the ends of justice would be promoted by the change." It is clear the making of such findings is within the court's discretion. 'However, Montana cases considering change of venue under section 93-2906(1) are contrary. In McKinney v . Mires, 95 Mont. 191, 195, 26 P.2d 169, the Court stated: "On Wmpliance with the statute and on a proper showing that the action was commenced in the wrong county, a defendant is entitled, on this first ground, to a change to the proper county as a matter of right." In Johnson v . Clark, 131 Mont. 454, 460, 311 P.2d 772, the Court said: "The above-quoted provisions of section 93-2906 are mandatory and, on timely and proper applica- tion, require the district court to change the venue. [Citing cases] . ' I Johnson was reaffirmed in Lunt v . Division of Workmen's Compensation, 167 Mont. 251, 537 P.2d 1080, 32 St.Rep. 662, 663, when the Court stated: "A district court is required to grant a motion for change of venue when the county designated in the complaint is not the proper county. Section 93-2906, R . C . M . 1947; Johnson v. Clark, 131 Mont. 454, 311 P.2d 772. * * *" Section 93-2902(2), R.C.M. 1947, the second venue statute involved requires each cause be examined before a determination of the proper venue may be made. The determination is into the nature of the cause of action involved and where it arose. The basic purpose of this venue provision is discussed in Regents of University of Cal. v . Superior Court, 91 Cal.Rptr. 57, 476 P.2d 457, 461. There the California Court discussing a similar provision said: "The underlying purpose of statutory provisions as to venue for actions against state agencies is to afford to the citizen a forum that is not so distant and remote that access to it is impractical and expensive. To that end, such provisions should be liberally construed in favor of the private litigant. * * *" Here, the Department of Health and Environmental Sciences joined defendants in the motion for change of venue and it is the plaintiffs, residents of Teton County and an organization which alleges that its members use the area in Teton County, who argue that venue is proper in Lewis and Clark County. They argue that because they alleged as a part of the basis for injunction that the Department had a duty to do an environmental impact statement, which was not done, therefore the "cause, or some part thereof, arose" in Lewis and Clark County. he phrase "cause, or some part thereof, arose" was dis- cussed at length by this Court in Bergin v. Temple, 111 Mont. 539, 546, 111 P.2d 286. There the Court said: "* * * a cause of action exists when the plaintiff has a right to institute a judicial proceeding and he has the right under the circumstances described here the moment he can show that the defendant has wrongfully infringed his liberty. ".'Arise,' the verb of which 'arose' is the past tense, means, * * * 'to spring up, originate; to come into being or notice, to become operative, sensible, visible, or audible; to present itself'; etc. Thus a cause of action arises when it springs up, originates, comes into being, becomes operative, presents itself. * * * " Thus, the answer to the question of proper venue under section 93-2902(2), R . C . M . 1947, lies in the analysis of two dependent variables, the nature of the cause of action and the time and place where it springs into existence. Here, the action is for an injunction which in this case sprung into existence at the time and the place where the alleged irreparable harm was threatened. That occurred when defendants began work physically altering the land. The alleged Illegal acts of the Department and the Teton County Commissioners could be enjoined, if at all, only where there was some threatened irrepar* 1; . . + able harm to plaintiffs' interests. Plaintiffs assert that Lunt v . Workmen's Comp. Dept. of Labor & Ind., 167 Mont. 251, 537 P.2d 1080, 1081, 32 St.Rep. 662, 664, is controlling here. There the action was for mandamus. It is difficult to imagine mandamus,based as it is on neglect or refusal by a public official to perform a ministerial duty, which did not arise as the Court said in - Lunt "'* * * in the county where the public official officially resides. It is at that place where he officially refuses to act or neglects to act. 1 1 1 Gildroy v. Anderson, 159 Mont. 325, 328,329, 497 P.2d 688, does not support plaintiffs' argument. There the Court was careful to point out: "Plaintiffs' complaint does not challenge the merits of the operation of the executive order in redistricting the affected counties as the cause of their injury. Rather, the claim is that an injury arises from an official act of the Governor which exceeds his powers and authority by reason of its alleged unlawful contra- vention of express legislative action. The question is one of the respective powers and authority of two branches of government, not the merits of the operation of the executive order. ' ' B y reason of the novelty of the subject matter of this suit, being a test of the powers and authority of two branches of government, it is clearly distinguishable from the facts found controlling in the Montana-Dakota Utilities Co. case heretofore cited. The circumstances of this case bring it within the rule that a cause of action based upon official conduct of a state officer performable at the seat of the state government arises in the county of his official residence." Montana-Dakota Utilities Co. v. Public Service Commission, 111 Mont. 78, 80, 107 P.2d 533, would be controlling here but for the language in - Lunt stating: It* * * Any portions of Montana-Dakota Utilities Co. v, Public Service Commission, 111 Mont. 78, 107 P.2d 533, inconsistent with this opinion are hereby expressly overruled .I1 Both cases were properly decided, the difference in result is based on the fundamental difference between the nature of the causes of action involved. In Montana-Dakota Utilities Co. the Court said: "* * * The cause of the action is the threatened enforcement or operation of the order in Valley and Phillips counties. It is not the mere making of the order, but the place where it is put in operation, that determines where the cause of action arose. Operation of the order is what is alleged will injure plaintiff. Section 3906, as amended by Chapter 56,Laws of 1937, provides that the orders'shall become operative' within twenty days after their filing. It is the operation of the order that the action seeks to enjoin. True, the complaint also seeks to set aside the order, but only because its operation allegedly would injure plaintiff byconfiscating its property. The operation of the order will be accomplished, if at all, in Valley and Phillips counties where the order is made applicable. It is our view that the cause of action arose in Valley and Phillips counties and not in Lewis and Clark county." Montana-Dakota Utilities Co. was discussed with approval in Cecil v, Superior Court In and For Los Angeles County, 59 C . A . 2 d 793, 1 4 0 P.2d 125, 129, where the California Court responding to an argument like that made by plaintiffs here, said: "It is where the shaft strikes him, not where it is drawn, that counts." Here, the injunction is aimed at stopping irreparable harm in Teton County, that is where the arrow strikes and where venue is proper. The district court's denial of the motion for a change of venue is reversed. We Concur: ---- "---" - ---- w ' . a/ Chief stice

March 14, 1977

b07aed39-24dd-4276-91be-f7cabef35dae

Helena Valley Irrigation Dist. v. St. Hwy. Comm'n

150 Mont. 192, 433 P.2d 791

11211

Montana

Montana Supreme Court

433 P.2d 791 (1967) 150 Mont. 192 HELENA VALLEY IRRIGATION DISTRICT, Plaintiff and Appellant, v. STATE HIGHWAY COMMISSION et al., Defendants and Respondents. No. 11211. Supreme Court of Montana. Submitted September 14, 1967. Decided November 1, 1967. Rehearing denied December 6, 1967. *792 Small &amp; Cummins and Carl Hatch, Floyd O. Small (argued), Robert T. Cummins (argued), Helena, for appellant. Herron &amp; Reber, Clayton Herron (argued), Helena, for respondents. JAMES T. HARRISON, Chief Justice. This is an appeal by the plaintiff, Helena Valley Irrigation District, hereafter called District, from an adverse judgment in a declaratory judgment action. The action was brought for a determination of plaintiff's rights to recover a portion of future operation and maintenance assessments from the defendant, State Highway Commission, hereafter called Commission, when it exercises the power of eminent domain to take land within the irrigation district. The action was submitted on an agreed statement of facts and a stipulation as to the issues of law to be decided. The district court, sitting without a jury, found for the defendant Commission. The plaintiff is an irrigation district organized pursuant to Chapter 12 of Title 89, Revised Codes of Montana 1947. The plaintiff levies and assesses special assessments or taxes on the basis of the number of acres included within the district. The amounts are used to pay off indebtedness of the district and to pay the costs of operation and maintenance. When a reduction in the number of irrigable acres occurs then the per acre cost of operation and maintenance increases. The defendant condemned land within the District and has paid the persons owning the land the value thereof and other damages incurred by the owners as a result of the taking. The takings have reduced the total irrigable acreage of the District. The defendant has refused to pay to plaintiff any amounts for annual operation and maintenance expenses attributable to the lands taken. It has paid the proportionate share of unpaid construction costs of the District attributable to the lands and the District is not claiming in this suit compensation for lands taken which were owned by it. The parties stipulated that the following are the issues of law to be decided in this action. Where the State of Montana, acting by and through the State Highway Commission, takes lands within an irrigation district, is the State of Montana legally obligated to pay to the said irrigation district any levy, assessment or proportionate share of the annual operation and maintenance expenses of the district incurred after such taking, or any amount whatsoever based on *793 such operation and maintenance costs, in addition to the compensation paid to individual landowners whose lands are so taken? In such circumstances, is the State of Montana obligated to pay any compensation or damages, to the irrigation district, for such financial loss as said district may sustain by additional operation and maintenance costs, and costs or expenses incidental thereto, resulting from the construction of highways for which said lands are taken by the State of Montana, acting by and through the Commission, in addition to the compensation paid to the individual landowners whose lands are so taken? The lower court answered the first issue in the negative and in the exercise of its discretion refused to rule on the second. The basis for the court's discretion was that no decree would terminate the controversy or remove the uncertainty involved. The plaintiff's position is that the refusal by the Commission to pay future operation and maintenance assessments, and the other damages claimed, is an unconstitutional taking or damaging of property without first giving just compensation. The plaintiff further contends that R.C.M. 1947, § 32-1615.1 requires the payment of the operation and maintenance assessments. This section provides: "Compensation for irrigable lands rendered unusable. Whenever the state highway commission constructs a highway through an irrigation or drainage project or district and acquires under eminent domain, or otherwise, irrigable land for highway purposes, or so acquires land for such purposes which acquisition renders other irrigable land unusable for irrigation, the state highway commission shall pay to the owner of the irrigation or drainage project, or to the irrigation or drainage district, in addition to any other sums allowed by law, a proportionate share of the unpaid construction costs of the project or the district, if any, for the irrigable land so acquired, or such irrigable land rendered unusable for irrigation." This statute has been repealed and replaced in 1965 by section 32-3916, R.C.M. 1947, which provides: "Rendering irrigable lands unusable unpaid construction costs. Whenever the commission acquires irrigable land for highway purposes, or so acquires land as to render other irrigable land unusable for irrigation, it shall pay to the owner of the irrigation or drainage project, in addition to other sums allowed by law, a proportionate share of the unpaid construction costs of the project or drainage district." Turning first to the contention that there has been an unconstitutional taking or a violation of a constitutional right, we note that the plaintiff is essentially a marketing and service organization. It claims it has a property right in the right to collect from the lands in its district the annual operation and maintenance charges. It terms this constitutional right a right of "equitable distribution of costs." Absent, however, the existence of statute or an agreement to the contrary, this court cannot see that there is a constitutional right for a seller of goods or services to be paid when no goods or services can be delivered. The plaintiff has cited only one case purporting to support such a result. In State of Wash. v. Human Relations Research Foundation, 64 Wash. 2d 262, 391 P.2d 513 (1964), the Washington Court uses language at one point which says that operation and maintenance assessments are a property interest "for which the respondent district is entitled compensation." However, the State of Washington has a statute requiring the payment of operation and maintenance expenses which is the basis for that decision. We cannot agree with the Washington Court to the extent, if any, that they relied on the theory of an unconstitutional taking to arrive at their decision rather than on their state statutes. Plaintiff cites the following cases in support of his theory of an unconstitutional taking. Town of Clarksville, Va. v. United States, 198 F.2d 238 (4th Cir.1952); United States *794 v. Chicago B. &amp; Q.R. Co., 82 F.2d 131 (8th Cir.); United States v. 31.07 Acres of Land, 189 F. Supp. 845 (D.C.Mont. 1960) (leasehold); Goodyear Farms v. United States, 241 F.2d 484 (9th Cir.) (easement). In all these cases the claimant was the owner of the property taken or destroyed and the action was to recover all the damages resulting therefrom. Jefferson County, Tenn. v. T.V.A., 146 F.2d 564 (6th Cir.); United States v. Wheeler Tp., 66 F.2d 977 (8th Cir.) and Town of Bedford v. United States, 23 F.2d 453, 56 A.L.R. 360 (1st Cir.) are also cited by plaintiff. These actions were for damages for the taking of roads and were all maintained by the holder of the proprietary interest in the roads. All the above cases are distinguished from the case at bar in that they are actions by the owners of the property and for the damages incurred by them. The cases are not authority for the proposition that a provider of goods and services to lands of another has a constitutional right to continue to receive payment for the cost of providing those goods and services when the goods and services are no longer provided. That such a result might be obtained by statute or contract does not make it a constitutional right. The cases of United States v. Florea, 68 F. Supp. 367 (D.C. Or.), and United States v. Aho, 68 F. Supp. 358 (D.C.Or.), were suits for operation and maintenance expenses of drainage districts when lands in the districts were condemned by the United States. The court in United States v. Florea, supra, distinguished drainage districts from irrigation districts. The drainage districts continued to benefit the lands after the taking. Because of this, the Florea and Aho cases are not authority for the proposition that without a continuing benefit to the land it is constitutionally required that the government pay operation and maintenance assessments. Toole County Irr. Dist. v. State, 104 Mont. 420, 67 P.2d 989 (1937), ruled that the State of Montana must pay operation and maintenance assessments to the irrigation district when they acquired agricultural land by mortgage foreclosure. The land continued to be irrigable. The case was decided on the question of whether the charges were an assessment or a tax. The case is not authority for the proposition that once the services are terminated that the State must continue paying for them. We find that there is no constitutional right for an irrigation district to receive future operation and maintenance assessments when the State of Montana through the State Highway Commission condemns lands within the district and the land is no longer irrigable. Since there is no constitutional right to these assessments, plaintiff's right to receive them depends upon the statutes which bring it into existence. Taking up now the further contention, being that the statutory law embraced in sections 32-1615.1 and 32-3916, R.C.M. 1947, supra, requires the payment of the operation and maintenance assessments. These statutes provide only that the State Highway Commission must pay the proportionate share of upaid construction costs when they take land in an irrigation district. This is a specific command to the Commission to pay the construction costs. It is a rule of statutory construction that the express mention of one matter excludes other similar matters not mentioned. 82 C.J.S. Statutes § 333, p. 668. Applied here, it means that having specifically mentioned construction costs and not having mentioned the corollary costs of operation and maintenance, the latter is not to be paid by the Highway Commission. By omission the legislature relieves the Commission from the payment of operation and maintenance assessments. It is also a rule of statutory construction that the legislature acted with full knowledge and information as to the subject matter and existing conditions including the construction placed on previous law by executive officers acting under it. 82 C.J.S. Statutes § 316, pp. 541-544, incl. *795 Under this presumption it must be assumed that the legislature knew the Highway Commission refused to pay construction, operation and maintenance costs. The legislature then passed the statute requiring payment of construction costs. It must be presumed and held that the legislative intent and enactment were that the Commission pay the construction and not pay the operation and maintenance assessments. Appellant points out section 89-1832, R.C.M. 1947, which provides that the land in the irrigation district remains liable for assessments and taxes even if the original owner transfers the land. If this section was meant to apply to lands taken for highway purposes then sections 32-1615.1 and 32-3916 would be meaningless. The court will presume that the legislature would not pass useless or meaningless legislation. 82 C.J.S. Statutes § 316 pp. 546-547. Section 89-1832 does not apply when the Highway Commission acquires land for highway purposes. It cannot be said that the phrase in section 32-1615.1, "in addition to any other sums allowed by law" requires the payment of operation and maintenance. If the operation and maintenance was required to be paid under that phrase then the portion of that statute referring to construction costs was useless for construction costs would be covered by that phrase. The fact that the legislature saw fit and need to pass the statute leads to the presumption that the enactment was necessary in order to provide for payment of construction costs and likewise it is presumed that a statute is needed to provide for payment of operation and maintenance. In conclusion, we find no constitutional requirement that operation and maintenance assessments be paid to an irrigation district after irrigability ceases. Thus, the requirement for payment must be found in the statutes of Montana. The statutes dealing with the subject indicate that the legislative intent was to provide for payment for unpaid construction costs and not for operation and maintenance. As to the second issue which the lower court refused to rule on, section 93-8906, R.C.M. 1947, grants the court discretion in this matter. This court will only reverse for an abuse of that discretion. We can find no abuse in this case. The judgment is affirmed. HASWELL, ADAIR and JOHN C. HARRISON, JJ., concur. CASTLES J., deems himself disqualified and takes no part in this Opinion.

November 1, 1967

6afb0619-ad6c-4639-af54-b289318df5fa

Weintz v. Bumgarner

434 P.2d 712

11259

Montana

Montana Supreme Court

434 P.2d 712 (1967) Robert WEINTZ, Plaintiff and Respondent, v. Glenn BUMGARNER et al., Defendants and Appellants. No. 11259. Supreme Court of Montana. Submitted September 13, 1967. Decided December 4, 1967. *714 S.M. Swanberg and Orville Gray, Great Falls, S.M. Swanberg (argued), Great Falls, for defendants and appellants. Scott &amp; Linnell, Great Falls, William M. Scott (argued), Great Falls, for plaintiff and respondent. HASWELL, Justice. This is an appeal from an amended decree and judgment of the district court of Cascade County dated September 6, 1966, interpreting the provisions of a farm lease relating to sale of the leased land during the term of the lease and generally requiring specific performance of such provision by the heirs of the lessor. The decree was entered upon amended findings of fact and amended conclusion of law made by the trial judge and generally is in favor of the lessee and prospective purchaser and against the administrator and heirs of the deceased owner and lessor. More specifically, the amended decree requires the heirs owning a 29/30th interest in the lands to sell their interest to the lessee under the provisions of the lease. The facts in this case are remarkably free from controversy. On December 10, 1959, Clark Bumgarner, the owner of approximately 410 acres of farm land in Cascade County, entered into a written lease with Robert Weintz (hereafter referred to as plaintiff) for a term of five years, containing, among other things, a provision that unless ninety days written notice of termination was given by either party prior to the expiration date that the lease would remain in effect from year to year thereafter. Plaintiff has farmed the tillable land each year thereafter. Clark Bumgarner died December 30, 1964, without having terminated the lease. His heirs are the following named persons who succeeded to fractional interests in the land involved in the following amounts: Ralph Bumgarner, Glenn Bumgarner, Myrtle Porter and Patricia Johnson, 1/6 share each; John Lutes, Gale Lutes, Kathleen Richardson and Harold Lutes, 1/24 share each; Barbara Severns, Everett Bumgarner, Eleanor Dahl, Shirley Meyer and Russell Bumgarner, 1/30 share each. Thereafter, Glenn Bumgarner was appointed administrator of the Clark Bumgarner estate. Plaintiff contacted the administrator pointing out the provisions in the lease relative to purchase and sale of the farm lands and later made an offer to purchase them for $75,000, which subsequently was established as the appraised value of the lands in the estate proceeding. The administrator advised plaintiff that he would be given a chance to match any bid offered for the land. Subsequently, the administrator advised plaintiff that no other bids had been received, and on March 6, 1965, the administrator advised plaintiff to go ahead and make arrangements for payment which plaintiff did. Two or three days later the administrator informed plaintiff that they had received a larger bid than his, but would not disclose the amount of the bid or the identity of the bidder. Subsequently it was established that this information was false in that the other bid received was from Russell Bumgarner, an heir owning a 1/30th share, who bid $64,000 for the 29/30 interest of the other heirs in the property. Various conversations were had by plaintiff with the administrator and the attorney for the estate, none of which resulted in disclosure *715 to plaintiff of the amount of this other bid, the identity of the other bidder or that he would be allowed to match the other bid. On April 23, 1965, and again sometime in May, 1965, the administrator served written notice on plaintiff of the termination of his lease. It subsequently developed that Russell Bumgarner, one of the heirs of the deceased, and one of the defendants in this case had made a written offer to purchase the farm lands for $64,000 and at one time or another all heirs entered into written agreements with him purportedly to sell their respective interest to him on this basis. It is to be noted that at no time were all the agreements of the heirs to sell in the escrow that had been set up by Russell Bumgarner therefor, and that subsequently some of these agreements were withdrawn and in one case, the guardian of an incompetent heir executed such agreement without consent or approval by the court handling the guardianship. It should be further noted that all times plaintiff has exhibited a willingness to purchase the land under the terms of the original offer of $75,000 cash. This action was filed in the district court on May 21, 1965, against all heirs and the administrator of the estate of the lessor and landowner Clark Bumgarner, requesting a decree of specific performance and sale in favor of plaintiff together with temporary relief during the pendency of the action leaving plaintiff in possession to farm the lands involved. After a show cause hearing and trial, findings of fact, conclusions of law and decree were entered by the trial judge, generally in favor of defendants and against plaintiff. On motion by plaintiff for amendment, the trial judge granted the same and filed amended findings of fact, conclusions of law and an amended decree, generally in favor of plaintiff and against defendants. The basic difference between the two sets of findings, conclusions and decrees is that the original provided that all owners had never formed a specific intention to sell in that defendant Russell Bumgarner had never indicated any desire or intention to sell, whereas the amended findings, conclusions and decree found a specific intention to sell by all heirs except Russell Bumgarner and decreed specific performance as to all heirs except Russell. This appeal followed from such amended decree by six of the defendants who were heirs of Clark Bumgarner, deceased, but the administrator of the estate and the other seven heirs are not parties to this appeal. The amended decree from which this appeal is taken provides as follows: (1) That the temporary restraining order leaving plaintiff in possession during the pendency of the action is dissolved; (2) That the defendants (being the administrator and heirs of Glenn Bumgarner, deceased) have the right to possession of the farm lands involved subject to plaintiff's right to care for and harvest crops planted by him and growing thereon and his right to be paid for any work performed by him toward future crops; (3) That upon payment by plaintiff to each defendant of his pro rata share of the $75,000 purchase price, each defendant is required to convey his undivided interest in the land to the plaintiff by a good and sufficient deed, excepting defendant Russell Bumgarner, and subject to the approval of the probate court for the share held by an incompetent person; and (4) Costs are awarded to plaintiff. The issues presented for review upon this appeal as delineated by the appealing defendants are as follows: (1) Whether or not the language contained in provision 10C of the farm lease gives plaintiff an option or pre-emptive right to purchase the lands if the same are offered for sale by the owners. (2) What effect, if any, is to be given to the situaton that presented itself where the owner dies and one of the heirs wanted to purchase but not sell? (3) What effect, if any, is to be given to the situation where *716 one of the heirs was an incompetent and no proceedings were taken in the guardianship to secure authority to enter into a contract for sale? and (4) What effect, if any, will be given to the situation where some of the heirs withdrew their prior written agreement to sell to another heir? The first issue in this case as set forth above involves the fundamental issue in this case, i.e., the interpretation of the lessee's right to purchase under the terms of the lease. Such right is governed by the following provision in the lease: "10C. The owner agrees to give tenant written notice of specific intention to sell the farm and to permit the tenant to have ten days in which to arrange purchase of the farm in case he indicates an interest in buying. This does not give possession to an outside purchaser until lease has expired." The heirs that are appealing herein argue that these words do not constitute an option to purchase because the price and terms of purchase are not set forth; that the words are vague, meaningless and void for uncertainty; and that in order to give the provision substance the court must construe this provision to grant the tenant the right to purchase upon the same terms and conditions as any other purchaser and to so construe it is to place language in the lease that the parties themselves did not use. We construe this provision to mean that at such time as the owner forms an intention to sell the property on specific terms and conditions, such owner must (1) give the lessee written notice of his intention to sell, including the terms and conditions of sale, and (2) give the lessee ten days in which to arrange purchase of the property on the same terms and conditions. Thereafter if the lessee does not arrange such purchase with the owner, the owner is free to sell to another person subject to the existing lease. In our view the provision in question confers a right of pre-emption or first refusal in the lessee rather than an option in the usual sense. The distinction between the two is well explained in Volume VI, American Law of Property, § 26.64, p. 507: "A pre-emption differs materially from an option. An option creates in the optionee a power to compel the owner of property to sell it at a stipulated price whether or not he be willing to part with ownership. A pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price. Upon receiving such an offer, the pre-emptioner may elect whether he will buy. If he elects not to buy, then the owner of the property may sell to anyone." The following cases also recognize such distinction but speak in terms of options to purchase on the one hand and conditional options on the other. (Nu Way Service Stations v. Vanderberg Bros. Oil Co., 283 Mich. 551, 278 N.W. 683; In re Rigby's Estate, 62 Wyo. 401, 167 P.2d 964.) Whatever language is used to describe the provision in question, it is clear that the right of the lessee to purchase accrues at such time as the lessor form a specific intention to sell the property for a definite price on definite terms. At such time as the owner forms such specific intention to sell, the provision in question ripens into a present enforceable contract right of the lessee. (Barling v. Horn, (Mo. 1956), 296 S.W.2d 94; Superior Portland Cement v. Pacific Coast Cement Co., 33 Wash. 2d 169, 205 P.2d 597.) In interpreting the quoted provision as we have, we consider it fundamental that such provision be given some meaning, if possible, consistent with the intention of the parties, (section 13-709, R.C.M. 1947), that the language presumptively is to be construed against the promisor in case of uncertainty (section 13-720, R.C.M. 1947), and that stipulations necessary to render the contract reasonable shall be implied even though not expressed in the contract itself (section 13-721, R.C.M. 1947). It must be *717 remembered that all testimony at the trial as to the actual intentions of the parties was ruled inadmissible by the trial judge on the basis of the deadman's statute (section 93-701-3, R.C.M. 1947), leaving us to construe the intentions of the parties by the language of the quoted provision. Applying the above rules of contract construction it seems apparent that this court should favor a construction that gives substance and meaning to the provision on purchase rather than adopt a construction that renders it meaningless and illusory, provided such can be done without violating the intention of the parties. The reasonable construction of the provision in the lease seems to us to be that when, as and if the lessor forms a specific intention to sell the land at a definite price, the lessee's right to purchase the land for that price vests, subject to his acceptance or rejection of purchase according to the terms of the lease. It is true, as argued by the heirs who appeal herein, that the parties did not spell out in the purchase provisions that the lessee's right to purchase was a right to purchase on the same terms and conditions as any other prospective purchaser. We feel, however, that this is an implied provision in the lease inasmuch as the whole provision is rendered meaningless without it and any other construction would render the provision illusory and unenforceable for lack of certainty. We will neither presume that the parties intended to insert a meaningless purchase clause in the lease nor that the language in such clause requires that construction. The heirs who appeal herein further argue that regardless of the construction placed on the purchase provision of the lease, plaintiff did not take steps to exercise his right to purchase as provided in the lease inasmuch as plaintiff at no time arranged purchase of the land, notified the heirs or administrator of his decision to exercise his right to purchase, or tendered the purchase price. Suffice it to say without extended discussion that this argument avails defendants nothing in the instant case for the simple reason that any failure on plaintiff's part to exercise his purchase rights under the terms of the lease was the direct result of a breach of the provisions of the lease requiring written notice of specific intention of the administrator and heirs to sell, nondisclosure of the identity of the prospective purchaser or purchase price to plaintiff, and falsification and deceit practiced by the administrator and Russell Bumgarner on the other heirs in securing their agreements to sell their interests to Russell for less than the appraised value and offer of plaintiff. At this point it is to be observed that the heirs that are appealing herein are prosecuting this appeal collectively, not individually; as a result all stand in the shoes of Russell Bumgarner insofar as this appeal is concerned. Russell Bumgarner clearly comes before this court with "unclean hands" because of his actions herein set forth previously and the other appealing heirs are tarred with the same brush by presenting this appeal collectively with him. Performance by plaintiff according to the terms of the purchase provision was rendered impossible by the administrator and Russell Bumgarner because plaintiff was denied any information as to the proposed purchase price or the identity of the purchaser by written notice or otherwise. Under these circumstances neither the administrator nor the heirs can defeat plaintiff's rights under the purchase provision in the lease. (Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320.) The additional argument is made by these defendants who prosecute this appeal that irrespective of the rights and liabilities of the original lessor, the purchase provision in the lease is not a "covenant running with the land," and therefore is not enforceable against the heirs of the lessor. The following provision is contained in the lease: "11. This lease shall bind and benefit the heirs and other successors of the owner and tenant." *718 A provision in a lease giving the lessee the first privilege of purchasing the leased land constitutes a "covenant running with the land" in the absence of language indicating an intention to confer a right personal to the original parties. (51 C.J.S. Landlord and Tenant § 80, p. 633; Nu Way Service Stations v. Vandenberg Bros. Oil Co., supra; Raco Corp. v. Acme-Goodrich, Inc., 235 Ind. 67, 131 N.E.2d 144). No such restrictive language exists in the instant case; on the contrary the language of section 11 hereinbefore quoted is expressly nonrestrictive and clearly indicates that the rights of the original parties are not personal to them but pass to their heirs and successors in interest. The appealing heirs further contend that if the purchase provision of the lease is a "covenant running with the land" the heirs of the owner stand in his shoes and all must join at one time in forming a specific intention to sell before plaintiff's rights of purchase vest or accrue. They point out that since Russell Bumgarner at no time formed a specific intention to sell and that as no approval of the court was secured by the guardian of an incompetent heir to sell her interest in the leased property, and further that at no time did the remaining heirs form a specific intention to sell at any given time simultaneously, that plaintiff's rights to purchase never came into existence. Upon the death of the owner and lessor, Clark Bumgarner, title to the property in question, subject to the provisions of the lease, passed immediately to his heirs as tenants in common. The purchase provision in the lease, being a "covenant that runs with the land," is apportioned among the heirs according to their respective interests in the whole of the property and binds them in the same manner as if they had personally entered into the covenant (see section 58-304, R.C.M. 1947). Section 58-311, R.C.M. 1947, provides for apportionment of covenants in the following language: "Where several persons, holding by several titles, are subject to the burden or entitled to the benefits of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively * * *." Thus the burden of the purchase provision of the lease passed by operation of law to the heirs as owners of undivided interests in the whole of the property who became individually and separately bound to the extent of their respective interests. Upon formation of a specific intention by each heir to sell the whole of his individual interest in the property, plaintiff's right of purchase according to the terms of the lease vested and accrued as to the interest of each such heir without regard to the interests of other heirs. For these reasons, the argument of the appealing defendants with regard to the interest of Russell Bumgarner, the interest of the incompetent, and the interest of all heirs collectively must fail. More will be said later in this opinion regarding these latter matters. The second issue presented for review, as set forth above, concerns the rights and status of defendant, Russell Bumgarner. It is observed that at no time did he form any specific intention to sell his interest in the property, but on the contrary was actively engaged in attempting to purchase the interests of the other heirs. From what has been said heretofore, it is clear that at no time did any right to purchase Russell Bumgarner's 1/30th undivided interest in the property as an heir accrue to the plaintiff. The amended findings of fact, conclusions of law and decree so provide. Russell Bumgarner's 1/30th interest in the property is unaffected by the amended decree herein and in this there is no error. The third issue presented for review concerns the rights and status of the incompetent heir in the property. It is to be noted that neither she nor her guardian is a party to this appeal. She was likewise one of the heirs to an undivided fractional interest in the property in question. *719 She was an incompetent for whom a guardian had been appointed and her guardian had signed an agreement to sell her interest in the property to Russell Bumgarner, another heir, without securing the approval of the court in which the guardianship proceeding was then pending. Subsequently this agreement to sell her interest to Russell Bumgarner was withdrawn. Upon oral argument of this appeal, it appeared that her interest in the property has been acquired by plaintiff for her proportionate share of the purchase price of $75,000 for all the property, and that this sale was approved by the court handling her guardianship. Under these circumstances the issue of her status and rights under the purchase provisions of the lease is now moot and no purpose would be served by such determination. The fourth issue presented for review concerns the effect of withdrawal from escrow by some of their heirs of their prior written agreements to sell to Russell Bumgarner. It is argued that this shows a lack of mutuality of intention to sell among all the heirs at any given time, and that as a result no right of purchase ever vested in plaintiff. This entire argument is bottomed on the proposition that all heirs must form a specific intention to sell the property before a right to purchase vests in plaintiff. From what has been said heretofore it is apparent that this court has rejected this basic premise urged by the defendants appealing herein and as a result the entire argument in this respect must fail. In addition to the issues presented for review, during oral argument on this appeal, plaintiff's counsel suggested that this court in reviewing an equity case has the power to correct certain errors in the trial court's findings, conclusions and decree peripheral to the main issues presented for review on this appeal. Counsel suggested that amended finding of fact No. 5 was inconsistent with amended conclusion of law No. 2, that the amended decree provided for conveyance of the property by the heirs before completion of probate proceedings and that no findings, conclusions or provisions of the decree were added concerning the share of the crops on the land covered by the lease for the years 1965, 1966 and 1967 as between the heirs of the lessor on the one hand and the plaintiff on the other. It appears to us that the trial court is in a better position to determine these matters than this court is and that none of these matters were apparently brought to the attention of the trial court in any manner. Accordingly any application for relief in these particulars should be made to the trial court consistent with the views expressed in this opinion. The decree of the district court is affirmed. JAMES T. HARRISON, C. J., and ADAIR, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

December 4, 1967

3cdcb56c-5db0-40e2-b002-e92da6cdb5fe

MATTER OF CHALLEEN

N/A

13537

Montana

Montana Supreme Court

No. 13537 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF THE ADOPTION OF WAYNE GERALD CHALLEEN and MICHAEL SHANE CHALLEEN, minors. Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Ferguson and Berry, Missoula, Montana Jeannette Ellen Berry argued, Missoula, Montana For Respondent : Nadine D.Scott argued, Butte, Montana Submitted: April 13, 1977 Filed: Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. The natural father appeals from an order of the second judicial district of the State of Montana, in and for the County of Silver Bow, allowing the adoption of his two minor sons, Wayne Gerald Challeen, age 7, and Michael Shane Challeen, age 6, without his consent. These children were born in Butte, Montana, an issue of the marriage of Nancy Mae Challeen and appellant, Wayne Lawrence Challeen. Upon their divorce on November 24, 1971, the mother was awarded custody of the children, and appellant was ordered to pay $100 per month as child support. It is agreed by all parties that appellant has never paid any child support since the date of this divorce. As far as the record shows, appellant was not permanently employed from 1971 until 1974. After an operation for the re- moval of his eye, appellant ceased to attend the Butte Vocational Technical Center, whereupon his GLBill terminated. From 1971 until June, 1974, appellant was unemployed for a majority of the time, interspersed with short term jobs. During this period appellant lived with friends and relatives. In June, 1974, appellant was charged with aggravated assault stemming from an incident where he threatened his ex-wife with a gun. Appellant spent three months in the county jail before obtaining bond. Thereafter, he attended school until he was convicted and sentenced to the state prison on the aggravated charge. He remained in prison, earning from twenty to sixty cents per day, until February, 1976. At this time, appellant used his remaining G I . Bill to attend the University of Montana. He admits that he was financi- ally able to pay the child support during the spring of 1976, and had intended to. However, he claims he did not know how to accomplish this in light of his parole conditions requiring him to avoid going to Butte without permission and to avoid contact with his ex-wife and children except through legal channels. Appellant's G.I. Bill terminated at the end of spring quarter, 1976, and from that time on he has been unemployed. Nancy Mae and Jeffrey Pankovich, the respondents, were married in 1973, and since have resided in Butte. The children have lived with and have been supported by them throughout this entire period. After receiving appellant's offer of child support, respondents filed their petition for adoption on May 28, 1976, whereupon a hearing was held June 25, 1976. Thereafter the district court entered the decree of adoption on August 10, 1976, finding that appellant had not contributed to the support of the children for more than five years and that the children's best interests would be served by adoption by Jeffrey Pankovich. Appellant contends that respondents did not meet their burden of proving that appellant's consent was not required under section 61-205, R.C.M. 1947. We agree. As recently held in Matter of Adoption of Smigaj, Mont . , 560 P.2d 141, 34 St.Rep. 16 (1977), the statutory requirements concerning consent must first be met before the welfare of the child becomes paramount. In Smigaj at p. 143, citing Adoption of Biery, 164 Mont. 353, 359, 522 P.2d 1377 (1974) , we stated: "While the best interests of the child are of utmost concern in both custody and adoption cases we have required strict compliance with section 61-205, R.C.M. 1947, because of the harshness of permanently terminating parental rights. " The statutory exception relied upon by respondents, section 61-205(1)(f), R.C.M. 1947, states that the father's consent to the adoption is not required: "if it is proven to the satisfaction of the court that said father or mother, if able, has not contributed to the support of said child during a period of one (1) year before the filing of a petition for adoption * * *". The burden on the petitioners for adoption under this section is to prove that the parent was able and failed to give support during this period. In re Adoption of Biery, supra,359. This respondents failed to do. They did show that appellant failed to contribute support for more than five years, but they did not show that he had the ability to provide support. Nor did the district court make such a finding to support re- spondents' argument. As in Smigaj it appears that respondents were attempting to argue that appellant had abandoned his children, and therefore, his consent was not required under section 61-205(1)(d), R.C.M. 1947. If such is the case, the petition for adoption can be amended on this basis and a hearing held thereon to determine if the statutory requirements are met. For these reasons the cause is reversed and remanded without prejudice to refiling or amend- ment of the petition for - ado Chief Justice u We concur: Justices 0 '

May 2, 1977

ee552f60-0293-41e8-8010-0fc107094b60

MASSA v DEPT OF SOCIAL REHABILI

N/A

13415

Montana

Montana Supreme Court

No. 13415 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 MICHAEL E. MASSA, plaintiff and Respondent, -vs- DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES OF THE STATE OF MONTANA, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District Honorable Jack L. Green, Judge presiding Counsel of Record: For Appellant: M. Gene McLatchy argued, Helena, Montana For Respondent : Mulroney, Delaney, Dalby and Mudd, Missoula, Montana John Mudd argued, Missoula, Montana Submitted: January 14, 1977 Decided : FEB 2 2 4977 Filed: FEB 2 2 1 9 n Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an appeal by a state agency from a summary judgment in favor of its employee on his wage claim. Michael D. Massa has been employed since July 1, 1969, by the Department of Social and Rehabilitation Services of the State of Montana (SRS). Massa had first been a welfare counselor, later was promoted to a supervisory position which he held for about two years, and finally on November 5, 1973, was transferred back to welfare counselor at his request so he could work directly with welfare recipients, rather than in a supervisory capacity. This last transfer resulted in a salary reduction from $900 per month which Massa had been receiving as district supervisor in Missoula to $820 per month as a welfare counselor. Massa's job c1assification and wage rate were governed by state Merit System regulations contained in a Personnel Policy Manual. Due to an oversight, Massa was paid at the rate of $860 per month for 16 months and upon discovery of the error, SRS began collecting the alleged overpayment ($640) by monthly deductions from Massa's salary. Massa claimed he was entitled to a monthly salary of $900 as a welfare counselor under state Merit System regulations. After failing to resolve his claim administratively within the agency, Massa filed suit in the district court of Missoula County. Following completion of the pleadings and pretrial discovery, both Massa and SRS moved for summary judgment. The district court, the Hon. Jack L. Green, district judge, granted summary judgment to Massa and denied summary judgment to SRS. Judgment was entered ( 1 ) restoring Massa to salary grade 18, step 6, of state Merit System regulations providing for a salary of $900 per month as of the date of transfer, ( 2 ) granting Massa all periodic adjustments and increases from the date of transfer, ( 3 ) ordering SRS to refund the $640 it had collected from Massa for the alleged overpayment, and ( 4 ) awarding Massa his costs of suit. Thereafter Massa's attorneys filed a cost bill which included $850 as attorney fees pursuant to section 41-1306, R.C.M. 1947. SRS now appeals from this judgment. SRS assigns two issues for review: ( 1 ) Was Massa's voluntary request for transfer a "re- assignment" within state Merit System regulations? ( 2 ) Was Massa's administrative appeal timely? The parties concede that state Merit System regulations govern Massa's job classification and wage rate to the extent they are applicable to the facts of Massa's case. SRS contends Massa's situation was not covered by these regulations as they existed at the time of transfer, or if covered, that Massa resigned and was simultaneously reinstated entitling him to a job classification of "Welfare Counselor 11, step 4 " with a salary of $820 per month. We hold that Massa's situation was covered by state Merit System regulations at the time of transfer and that he was entitled to a job classification and wage rate of "Counselor 11, salary grade 18, step 6" with a salary of $900 per month, pursuant to these regulations. The controlling provision on Massa's job classification is the reassignment provision in the state Merit System regulations: "Reassignment means a change in title of an employee for other than disciplinary reasons from one class to another having a lower entrance salary." Art. 4, 719, p.23. This provision fits Massa's situation like a glove. His title was changed from District Supervisor to Counselor 11. The change was voluntary and not for disciplinary reasons. Counselor I1 had a lower entrance salary than District Supervisor. The language of the reassignment provision is clear and subject to no other meaning. State Merit System regulations further provide: "An employee who is reassigned will be paid the same salary as before reassignment, except that his salary may not be above the new maximum and if his salary is not at a step in the new range it will be adjusted to the next higher step." Art. 2, Section I11 ( f ) . (Emphasis added.) The maximum salary for Counselor 11 is $900 per month at step 6. This is the job classification and wage rate contained in the district court's judgment. It is clearly correct under the regulation. The contention of SRS that Massa resigned and was simultaneously reinstated is contrary to the facts and regulations. The pertinent regulations provide: "Resignation means the termination of employment at the request of the employee." Art. 4, 824, p. 23. "Reinstatement means a return to employment in an agency in the same class, or a closely related lower class, .with all previously accrued rights." Art. 4, 1123, p. 23. Massa at no time requested a termination of his employment with SRS nor did he ever return to employment with SRS. He specifically asked for a job transfer within the agency and remained continually employed by SRS. SRS next contends that Massa's wage claim is barred because he did not request a hearing within 30 days before the Merit System Council pursuant to the regulations. This contention is without merit for a t least two reasons: (1) the Merit System Council denied him a hearing, and (2) t h i s defense was never pleaded nor proved i n the d i s t r i c t court and cannot be raised for the f i r s t time on appeal. Rule 8(c), M.R.Civ.P.; Pickett v. Kyger, 151Mont. 87, 439 P.2d 57; Close v. Ruegsegger, 143 Mont. 32, 386 P.2d 739. The judgment of the d i s t r i c t court i s affirmed. W e tax as costs on appeal an attorney's fee i n the sum of $800 for the services of respondent's attorneys i n t h i s appeal. V A & A $ Justice W e Concur: ". / .-.~ . % , - -- - Chief Ju i c e 2 p

February 22, 1977

4a72d70c-c27c-4b5e-9efd-4be6c82a848d

CRITTENDON v CITY OF BUTTE STATE

N/A

13372

Montana

Montana Supreme Court

No. 13372 IN THE SUPREME COURT OF THE STATE OF MONTANA CAROLYN L. CRITTENDON, Claimant and Appellant, CITY OF BUTTE, Employer and STATE COMPENSATION INSURANCE FUND, ) Defendant and Respondent. Appeal from: Workers' Compensation Court William E. Hunt, Judge Counsel of Record: For Appellant: Burgess, Joyce, Prothero, Whelan and O'Leary, Butte, Montana Frank Burgess argued, Butte, Montana For Respondent : Thomas Reegan argued, Helena, Montana Submitted: January 12, 1977 Decided : Filed: JAN 2 0 1977 Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Claimant, a meter maid for the City of Butte, was in- jured on January 16, 1973, when a parking violator drove his Volkswagen over her left foot while being ticketed. The Workers1 Compensation Court granted claimant an 8% permanent partial disability as compared to amputation of the foot at the ankle following a hearing on January 20, 1976. Claimant appeals. At issue is the sufficiency of the evidence to support the disability rating. Dr. Charles R. Canty, an orthopedic surgeon and claimant's treating physician, testified that " * * * there would be perhaps a slight permanent partial impairment of the function of her foot, ankle, leg as a result of the accident." but declined to fix the percentage of disability because he had not seen claimant for almost three years. Dr. Philip A. Blom, a chiropractor who examined claimant in December, 1973, testified that claimant had suffered a 23% permanent partial impairment to the foot and ankle based upon the guidelines of the Manual for Orthopedic Surgeons in the Rating of Physical Impairment. We hold that testimony indicating " * * * perhaps a slight permanent partial impairment of function * * *" does not support a fixed percentage rating at any figure. Converting such testi- mony into a percentage disability rating is pure speculation for obvious reasons. Accordingly, we vacate the 8% permanent partial disability rating and the resulting monetary award. Neither can we sustain claimant's contention that the only remaining evidence is the 23% rating of Dr. Blom which must be accepted. Dr. Blom's testimony is inherently self-contradictory. After testifying that he used the guidelines of the Manual for Orthopedic Surgeons in the Rating of Physical Impairment which - uses range of motion and atrophy as the rating criteria, he testified that the "Range of motion of the ankle was within normal means * * *" and that he found no fibrotic condition or osteoarthritis in the foot and ankle. The Workers' Com- pensation Court rejected the rating of Dr. Blom by its findings. The credibility of the witnesses and the weight to be given their testimony is exclusively for the trier of the facts. Bender v. Roundup Mining Co., 138 Mont. 306, 356 P.2d 469; Dean v. Anaconda Co., 135 Mont. 13, 335 P.2d 854. This case is remanded to the Workers' Compensation Court for a hearing and determination of the degree of permanent partial disability and the amount of compensation payable to claimant. Justice chief Justice r\, L'

January 20, 1977

bc5741ce-f304-4f52-9445-1e906524aae8

BATEY LAND LIVESTOCK CO v NIXON

N/A

13370

Montana

Montana Supreme Court

No. 13369 & 13370 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 B A T E Y L A N D & LIVESTOCK C O M P A N Y , a Montana Corporation, P l a i n t i f f and Appellant, -vs- ROBERT NIXON, Defendant and Third Party P l a i n t i f f and Appellant versus Fred Hail and Respondent t o Batey -vs- ROBERT BRAATON and H E L E N BRAATON, h i s wife and FRED HALL, Third Party Defendants and Respondents. ............................................................ BATEY LAND & LIVESTOCK, a Montana Corporation, P l a i n t i f f and Appellant, -vs- ROBERT PAULEY, Defendant and Third Party P l a i n t i f f and Appellant versus Fred Hall and Respondent t o Batey -vs- ROBERT BRAATON and HELEN BRAATON, h i s wife and FRED HALL, Third Party Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Sixteenth J u d i c i a l D i s t r i c t , Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellants: Krutzfeldt and Haker, Miles City, Montana W. J. Krutzfeldt argued, Miles City, Montana Anderson, Symrnes, Forbes Peete & Brown, B i l l i n g s , Montana James L. Jones argued, B i l l i n g s , Montana For Respondents: Lucas, J a r d i n e and Monaghan, Miles C i t y , Montana Thomas M. Monaghan argued, Miles City, Montana Submitted: January 1 2 , 1977 Decided : WAR 2 1977 M r . Justice Gene B. Daly delivered the Opinion of the Court. Batey Land & Livestock Company appeals from summary judgment rendered for defendants Robert Nixon and Robert Pauley by the d i s t r i c t court, Custer County, i n actions for conversion. Defendants Nixon and Pauley appeal from the d i s t r i c t court's order dismissing t h e i r third party complaints against Fred Hall for indemnification. O n May 2, 1968, Baby Land & Livestock Company (Bgtey) sold 215 head of Pereford c a t t l e , 198 cows and 17 bulls, branded Heart bar H , t o Robert and Helen Braaton. Payment was made by promissory note i n the amount of $43,000 executed by Braatons and payable i n installments of $10,000 plus interest on November 1st of each year commencing i n 1968. Braatons also executed a security agreement on May 2, 1968, pledging the c a t t l e a s security for the indebtedness. A financing statement was f i l e d with the Rosebud C6unty clerk and recorder on M a y 6, 1968. O n May 2, 1968 Braatons borrowed $13,570 from the Miles City Production Credit Association (PCA) and executed a security agreement l i s t i n g i t e m s of personal property, including c a t t l e , a s c o l l a t e r a l for the loan: " 2. LIVESTOCK, E Q U I P M E N T ANDIOR OTHER-. G O O D S - A l l livestock, equipment, and/or other goods of every kind and description now owned o r hereafter acquired by the Debtor, including, but not limited t o , the following: Fifty Head of Hereford Cattle, Branded: Left Rib, subject t o prior lien, and described a s follows: 48 Cows 2 Bulls Two Hundred Fifteen Head of Hereford Cattle, Branded: Right Ribs, held by B i l l of Sale, subject t o prior lien, and described a s follows: 198 Cows 17 Bulls ALSO: One Hundred Per-Cent (100%) of the increase from One Hundred Ninety-Eight Head of Hereford Cows, branded : Right Ribs, said increase t o be Right Ribs; @ branded:" The security agreement provided t h a t Braatons not s e l l o r dispose of any of t h e c o l l a t e r a l without t h e consent of PCA. O n May 9 , 1968, Robert L. Batey, acting i n h i s capacity a s president of Batey Land & Livestock Company, executed a subordina- t i o n agreement prepared by PCA. By the terms of : the agreement, Batey consented t o give P C A a f i r s t l i e n on Braatons' personal property, not t o exceed $13,570 the amount of t h e loan: [May 9, 1968 Subordination Agreement] "In order t o a s s i s t him t o obtain t h i s loan, I agree t h a t any i n t e r e s t o r l i e n which I have o r may obtain during t h e l i f e of such security agreement, i n o r on h i s r e a l o r personal property (including crops), and t h e increase from 198lHereford cows, b r a n d e d : w marked on r i g h t side, w i l l be considered junior and in- f e r i o r t o t h a t l i e n which you may take on such property t o secure your loan. I further agree t h a t I w i l l not d i s t u r b him i n the possession of e i t h e r h i s r e a l o r personal property, f o r a period not t o exceed eight months from t h i s date, without f i r s t securing your written consent." O n May 21 and May 28, 1968, P C A f i l e d notices of security agreement with the Montana Livestock Commission, Helena, Montana, t o perfect i t s security i n t e r e s t embodied i n the May 2, 1968 security agreement. Neither notice referred t o o r specified any livestock branded Heart bar H. The only livestock specified were those c a t t l e branded Lazy H hanging H (3) and M hanging 0 (w). Braatons negotiated a second loan with P C A f o r $21,610 and executed a second security agreement on October 31, 1968. This security agreement a l s o l i s t e d items of personal property, including c a t t l e , a s c o l l a t e r a l f o r t h e loan: "LIVESTOCK, EQUIPMENT AND/OR OTHER G O O D W 1 1 livestock, equipment,and/or other goods of every kind and descrip- t i o n now owned o r hereafter acquired by the Debtor, in- cluding, but not limited t o , the following: F i f t y Head of Hereford Cattle, Branded: 3 Left Ribs and Thirty Head of Hereford Calves, Branded: % Right Ribs, described as follows: 48 Cows 30 Calves 2 Bulls Two Hundred Seventeen Head of Hereford Cattle, Branded: Right Ribs, subject t o a f i r s t security interest held by Batey Land & Lovestock Co., described a s follows: 200 Cows 17 Bulls ALSO: One Hundred Per Cent (100%) of the increase from T w o Hundred (200) Head of Hereford Cows, B r a n d e d : m Right Ribs, said increase t o be branded: Right Ribs ;'I O n October 31, 1968, Robert L. Batey, once again acting i n h i s capacity a s president of Batey Land & Livestock Company, executed a second subordination agreement. I n the same language used i n the f i r s t subordination agreement, Batey consented t o give PCA a f i r s t l i e n on Braatons' personal property, not t o exceed $21,610 the amount of the second loan: [October 31, 1968 Subordination Agreement] "In Order t o a s s i s t him t o obtain t h i s loan, I agree t h a t any interest or l i e n which I have or may obtain during the l i f e of such security agreement, i n o r on h i s r e a l or personal property (including crops), and the increase from 200 Hereford cows, b r a n d e d : m marked on right side, w i l l be considered junior and inferior t o that l i e n which you may take on such property t o secure your loan. I further agree that I w i l l not disturb him i n the possession of e i t h e r h i s r e a l or personal property, for a period not t o exceed twelve months from t h i s date, without f i r s t se- curing your written consent." O n November 19, 1968 P C A f i l e d a notice of renewal of security agreement with the Montana Livestock Commission i n order t o perfect its security interest embodied i n the October 31, 1968, security agreement. This notice, a s i n the case of the prior two notices, failed t o refer t o o r specify Heart bar H c a t t l e , specifying only c a t t l e branded Lazy H hanging H and M hanging 0. O n April 21, 1969, Batey f i l e d a notice of security interest with the Montana ~ i v e s t o c k Commission t o perfect i t s security interest embodied i n the May 2, 1968, security agree- ment. e his notice specified livestock branded Heart bar H a s being the subject matter of the security agreement dated May 2, 1968, and l i s t e d Robert and Helen Braaton a s the debtors. Subsequent t o the above transactions, Braatons solicited the services of Fred Hall, a livestock broker, t o negotiate the sale of "Braatons"' cattle. O n ~ecember 6, 1969, Hall negotiatdd with Robert Nixon for the sale of 80 head of c a t t l e , branded Heart bar H for $18,400';' Hall further negotiated with Robert Pauley the s a l e of 20 head of c a t t l e , branded Heart bar H, for $4,200 on December 12, 1969. Hall received payment of the e n t i r e amount from both sales ($22,600) and issued h i s own per- sonal check made payable t o "Robert R. Braaton & P.C .A." i n the amount of $21,990. ($22,600 l e s s $610 Hall's commission for the two sales a t $10 per head.) O n April 26, 1971 Batey f i l e d s u i t against Braatons i n Rosebud County t o recover sums owed by Braatons. The only gay- ments made by Braatons on the $43,000 promissory note appear t o be a payment of $10,000 plus interest made on November 4, 1968, and a payment of ;510,000 plus interest made on November 11, 1969. O n the same date a s the f i l i n g i n Rosebud County, Batey f i l e d the instant actionsin the d i s t r i c t court of Custer County against Nixon and Pauley, for conversion of the Heart bar H c a t t l e . Batey obtained a judgment against Braatons i n the amount of $15,000 on July 22, 1974. That judgment remains entirely unpaid, the Braatons apparently being judgment proof. O n February 11, 1974, Nixon and Pauley f i l e d amended third party complaints against the Braatons and Hall, alleging breach of warranty of title. , After the district court, Rosebud County, determined the liability of Braatons, and upon submission of the instant matters to the district court,; Custer County, Nixon, Pauley and Hall moved for summary judgment. Batey responded by filing a cross-motion for summary judgment. On March 7, 1975 the district court entered its ;memorandum and order denying all defendants' motions for summary judgment and granting Batey's motion on its theory of wrongful conversion. The district court concluded Batey had a perfected security interest in the cattle and Nixon and Pauley had converted the collateral by their purchases. The court found Hall to be a joint tortfeasor in the conversion of the cattle, but failed to find sufficient proof establishing fraud. Subsequent to the district court's order, Nixon and Pauley discovered the subordination agreements which gave PCA a paramount lien. By order dated April 30, 1975 the district court granted " a , motion to set aside the court's order granting summary judgment in favor of Batey. A trial without jury was ordered. The district court granted summary judgment for Nixon and Pauley on March 22, 1976. In its order and memorandum the district court found PCA had a security interest in the Heart bar H cattle for $35,360, the amount of the two loans; that Batey signed agreements subordinating its security interest to the security interest held by PCA; that the subordination agreement signed by Batey was not ambiguous; thatthe security interest agreement between Braatons and PCA gave Braatons the right to sell the Heart bar H cattle with the consent of PCA; that PCA's acceptance of the proceeds from the sales constituted con- sent to the sales; that Nixon and Pauley ,had no actual notice of Batey's security interest; and that the sale of the cattle to Nixon and Pauley was conducted openly, fairly and.at market value. The d i s t r i c t court further ordered the actions against the third party defendants be dismissed with prejudice. A s i n the d i s t r i c t court, t h i s Court w i l l t r e a t the separate actions against defendants Nixon and Pauley a s one, because of the similarity of facts and legal issues presented. O n review, i n i t i a l l y Batey conterids t h e - d i s t r i c t court erred when it granted defendants' motion for summary judgment. I n other words, it i s argued the d i s t r i c t court erred when it found the P C A possessed a perfected f i r s t lien; that the Heart bar H c a t t l e were the subject matter of the unambiguous subor- dination agreement executed by Batey;and there was no issue of fact t o be decided by a jury. A summary judgment can be granted only where the p r e t r i a l record discloses (1) the absence of any genuine issue of material fact and (2) that the moving party is entitled t o judgment a s a matter of law. Rule 56(c), M.R.Civ.P. For an extensive dis- cussion of the principles of summary judgment under Rule 56(c) see: Harland v. Anderson, Mont . , 548 P.2d 613, 33 St.Rep. 363. This Court's i n i t i a l inquiry concerns the presence o r absence of a genuine issue of material fact. Batey contends PCA's failure t o specify Heart bar H c a t t l e i n i t s notices of security agreement and notice of renewal of security agreement i s proof of PCA'S lack of intent t o secure a f i r s t l i e n on the Heart bar H c a t t l e , I n light of t h i s evidence, Batey contends the subordina- tion agreements are ambiguous and t h e i r interpretation is a genuine issue of material fact. It is argued we must look t o the intent of the parties and the underlying circumstances surrounding the execution of the subordination agreements in resolving the legal effect of the subordination agreements. We disagree. The subordination agreements executed by Batey aredear and specific. Each of the instruments contains language sub- ordinating Batey's lien on Braatons' real or personal including crops and the increase from the Heart bar H cattle, to PCA1s lien. Sections 13-704 and 13-705, R . C . M . 1947, are controlling: Section 13-704: "Intention to be ascertained from language. The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." Section 13-705: "Interpretation of written contracts. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this chapter." The subordination agreements fail to present a question of fact. The plain and clear meaning of the instruments is control and the intent of the parties is to be ascertained from the instruments. Fulton V . Clark, 167 Mont. 399, 538 P.2d 1371, 32 St. Rep. 8 0 8 . As a matter of law, the subordination agreements give PCA a first lien on the Heart bar H cattle in the amount of $35,350. Since the proceeds of the sale, which the district court found to be open, fair and at market value, were less than this amount, the PCA did not exceed its security interest in the collateral. Batey contends that even if the subordination agreements are found to give PCA a superior lien, PCA failed to perfect its security interests when it failed to specify Heart bar H cattle as being the subject matter of the security agreements in the notices of security agreement and the notice of renewal of security agreement. This argument may be resolved by defining the purposes of the various instruments. The security agreement is the instrument which places the encumbrance on the debtor's property. The financing statement is to evidence an encumbrance on the real or personal property of a debtor and is filed with the county clerk and recorder where the debtor resides for the purpose of giving notice to third parties and perfecting the security interest, in compliance with the Uniform Commercial Code, section 87A-9-401, R.C.M. 1947. The filing of notices of security agreement and notices of renewal of security agreement with the Montana Livestock Commission is in compliance with section 52-319, R . C . M . 1947, which seeks to protect livestock markets from liability for conversion arising out of the sale of livestock burdened with liens. Montana Meat Co. v. Missoula Livestock Auction Co., 125 Mont. 66, 230 P.2d 955. The PCA perfected its security interest when it filed its financing statement on May 13, 1968, and listed "all livestock" as being the collateral for the security agreement. This instru- ment,:+dSly filed in the county where the debtor resided, gave notice to third parties that PCA had a perfected lien on Braatons' cattle. PCA's failure to adequately describe the Heart bar H cattle in the notices of security agreement and the notice of renewal of security agreement would act as a bar to PCA only if the cattle were sold by a livestock market and PCA was attempting to satisfy its lien by an action against the livestock market for conversion. Going one step further, Batey in executing the subordina- tion agreements, had actual notice of PCA's superior lien. Such actual notice estops Batey from coming before the courts and claiming that a sale of the Heart bar H cattle defeated his security interest in the collateral. The conclusive legal effect of the subordination agreements is to subordinate Batey of any interest in the proceeds from the sale of Heart bar H cattle, up to the amount of PCA's lien. We find it unnecessary to discuss defendants' appeal of the district court's order dismissing the third party complaints that against Fred Hall having resolvedlthe district court, in'granting defendants' motion for summary judgment, was not presented with any genuine issue of material fact and as a matter of law de- fendants were entitled to judgment. , The judgment of the district court affirmed. 1 We Concur:

March 2, 1977

b90a8c90-e0ca-4e8b-a992-6a472ce61ff7

MATTER OF ADOPTION OF SMIGAJ

N/A

13466

Montana

Montana Supreme Court

No. 13466 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 I N THE MATTER O F THE ADOPTION O F JAMIE L Y N N SMIGAJ, a minor. Appeal from: District Court of t h e F i r s t J u d i c i a l D i s t r i c t , Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellant: Leaphart Law Firm, Helena, Montana W. William Leaphart argued, Helena, Montana Victor H. F a l l , Helena, Montana James M. D r i s c o l l appeared, Helena, Montana For Respondent : Russell LaVigne argued, Helena, Montana Submitted: January 2 0 , 1977 D e c i d e d E B 7 1977 F i l e d : FEB 7 W Q A M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court. A s t e p f a t h e r of a seven year o l d female c h i l d a p p e a l s from a n o r d e r dismissing h i s p e t i t i o n f o r adoption e n t e r e d by t h e d i s t r i c t c o u r t of Lewis and Clark County, Honorable Gordon R. Bennett, d i s t r i c t judge, s i t t i n g without a jury. The c a s e comes t o u s on t h e b a s i s of an agreed statement of f a c t i n l i e u of a record on appeal pursuant t o Rule 9 ( d ) , M.R.App.Civ.P. The agreed f a c t s i n d i c a t e t h a t t h e c h i l d , J a m i e Lynn Smigaj, was adopted when she was one year o l d by James E. Smigaj and Alberta Smigaj, husband and wife. Subsequently James Smigaj became t o t a l l y d i s a b l e d and a s a consequence t h e r e o f , Jamie Lynn r e c e i v e s monthly S o c i a l S e c u r i t y b e n e f i t s of $154. O n February 16, 1973, James E. Smigaj and Alberta Smigaj w e r e divorced. Custody of J a m i e Lynn was awarded t o Alberta w i t h reasonable r i g h t s of v i s i t a t i o n granted t o James Smigaj. The judge, upon considering James1 d i s a b i l i t y , d i d n o t o r d e r him t o pay c h i l d support. O n September 3 , 1974, Alberta married Douglas J. Rushford and ever s i n c e they have been husband and w i f e , r e s i d i n g t o g e t h e r w i t h J a m i e Lynn. O n A p r i l 20, 1976, Rushford p e t i t i o n e d t h e d i s t r i c t c o u r t f o r permission t o adopt Jamie Lynn without t h e consent of t h e c h i l d ' s p r i o r adoptive f a t h e r , James Smigaj. O n June 24, 1976, a hearing was held i n t h e d i s t r i c t c o u r t a t which t i m e James Smigaj appeared w i t h counsel b u t d i d n o t t e s t i f y . Alberta t e s t i f i e d , among o t h e r t h i n g s , t h a t f o r more than one year p r i o r t o t h e p e t i t i o n f o r adoption by Rushford, James Smigaj had n o t v i s i t e d with o r seen Jamie Lynn nor had Jamie Lynn received any letters, p o s t c a r d s , p r e s e n t s , c l o t h i n g o r money from James Smigaj. A t t h e conclusion of t h e testimony i n support of t h e p e t i t i o n f o r adoption, Judge Bennett dismissed t h e c a s e f o r t h e reason t h a t Rushford had f a i l e d t o prove t h a t James Smigaj was a b l e t o f i n a n c i a l l y c o n t r i b u t e t o t h e support of Jamie Lynn a s r e q u i r e d by s e c t i o n 61-205, R.C.M. 1947, and t h u s t h e adoption could n o t proceed without t h e consent of James Smigaj. Two i s s u e s a r e presented f o r review: (1) Did t h e d i s t r i c t c o u r t err i n n o t considering t h e c h i l d ' s welfare t h e paramount c o n s i d e r a t i o n ? (2) Is s e c t i o n 61-205(1) ( f ) l i m i t e d t o " f i n a n c i a l support"? The f i r s t i s s u e has previously been decided by t h i s Court adversely t o a p p e l l a n t ' s p o s i t i o n . I n re Adoption of Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377. S t a t u t o r y consent requirements i n adoption c a s e s must f i r s t be m e t a f t e r which t h e w e l f a r e of t h e c h i l d becomes paramount. A s s t a t e d i n Biery: "While t h e b e s t i n t e r e s t s of t h e c h i l d a r e of utmost concern i n both custody and adoption cases w e have r e q u i r e d strict compliance w i t h s e c t i o n 61-205, R.C.M. 1947, because of t h e harshness of permanently terminating p a r e n t a l r i g h t s . " Thus i n adoption c a s e s t h e i n i t i a l threshhold requirement is s t a t u t o r y compliance. The d i s t r i c t c o u r t w a s c o r r e c t i n dismiss- i n g t h e p e t i t i o n f o r adoption on f i n d i n g t h a t s t a t u t o r y consent requirements had n o t been m e t . D i r e c t i n g o u r a t t e n t i o n t o t h e second i s s u e , a p p e l l a n t argues t h a t t h e t e r m "support" contained i n s e c t i o n 61-205(1) ( f ) , R.C.M. 1947, does n o t r e f e r e x c l u s i v e l y t o f i n a n c i a l support b u t i n c l u d e s moral support, psychological support, s p i r i t u a l support and s o f o r t h . Rushford urges t h a t "support" i n c l u d e s t h e p a r e n t a l o b l i g a t i o n s t o express l o v e and concern f o r t h e c h i l d and t o g i v e t h e c h i l d s o c i a l and r e l i g i o u s guidance as set f o r t h i n Appli- c a t i o n of Conley v. Walden (1975), 166 Mont. 369, 533 P.2d 955. I n t h i s regard Rushford relies on A l b e r t a ' s testimony t h a t James Smigaj d i d n o t v i s i t Jamie and d i d n o t send her any letters, post cards, presents, c l o t h i n g o r money. Section 61-205(1)(f) s t a t e s i n p e r t i n e n t p a r t t h a t t h e f a t h e r ' s consent t o t h e adoption is n o t required: " i f it i s proven t o t h e s a t i s f a c t i o n of t h e c o u r t t h a t - s a i d f a t h e r o r mother, i f a b l e , has not contributed t o t h e support of s a i d c h i l d during a period of one (1) year before t h e f i l i n g of a p e t i t i o n f o r adoption * * *." (Emphasis added.) Although w e have not been r e f e r r e d t o any c a s e s p e c i f i c - a l l y construing t h e meaning of t h e term "support" i n s e c t i o n 6 1 - 2 0 5 ( 1 ) ( f ) , we have no d i f f i c u l t y i n construing t h e p l a i n meaning of t h e words i n t h e context of t h e consent s t a t u t e a s r e f e r r i n g t o t h e " f i n a n c i a l support" t h a t a parent owes a c h i l d . Rushford's p e t i t i o n f o r adoption a l l e g e d t h a t James Smigaj, " * * * although f i n a n c i a l l y capable, has not contributed t o t h e support of s a i d c h i l d * * *". The p a r t i e s b r i e f e d t h e question of f i n - a n c i a l support. The p a r t i e s themselves i n t e r p r e t e d t h e s t a t u t e t o mean " f i n a n c i a l support". The l e g i s l a t i v e i n t e n t is c l e a r from t h e language used i n t h e context of t h e s t a t u t e and w e a r e not permitted t o apply e x t r i n s i c r u l e s of construction t o expand Mont . t h e d e f i n i t i o n . Keller v. Smith, (1976), , 553 P.2d 1002, 33 St-Rep. 828; Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660, and cases c i t e d t h e r e i n . It appears t h a t Rushford i s a c t u a l l y attempting t o argue t h a t James Smigaj has abandoned Jamie Lynn and t h e r e f o r e h i s consent i s not required under s e c t i o n 61-205(1)(d), R.C.M. 1947. I f such i s t h e case, t h e p e t i t i o n f o r adoption should be d r a f t e d on t h i s b a s i s and a hearing held thereon t o determine whether t h e f a c t s bring t h e p e t i t i o n within t h i s s t a t u t e . The d e c i s i o n herein i s without p r e j u d i c e t o r e f i l i n g t h e p e t i t i o n on t h i s b a s i s . The order of t h e d i s t r i c t c o u r t dismissing t h e p e t i t i o n is affirmed. J u s t i c e We concur: ~,- -. Justices 6 '

February 7, 1977

1c060af6-a0ea-4d1c-8bac-cffe46c51ce8

STATE EX REL NELSON v DISTRICT CO

N/A

13844

Montana

Montana Supreme Court

No. 1 3 8 4 4 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 7 STATE OF MONTANA, ex rel. THEODORE NELSON, R e l a t o r , -vs- THE D I S T R I C T COURT OF THE SECOND J U D I C I A L D I S T R I C T OF THE STATE O F MONTANA, I N AND FOR THE COUNTY O F S I L V E R BOW, AND THE HON. JAMES D. FREEBOURN, P R E S I D I N G JUDGE, R e s p o n d e n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For R e l a t o r : H e n n i n g s e n , P u r c e l l & G e n z b e r g e r , B u t t e , M o n t a n a R e x F. H e n n i n g s e n argued and John Jardine argued, B u t t e , M o n t a n a For R e s p o n d e n t : H o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a John G. W i n s t o n , C o u n t y A t t o r n e y , B u t t e , M o n t a n a C r a i g P h i l l i p s argued, D e p u t y C o u n t y A t t o r n e y , B u t t e , M o n t a n a Filed: S u b m i t t e d : June 2 2 , 1 9 7 7 D e c i d e d : Jf# 28 No. 13855 I N THE SUPREME COURT OF THE STATE OFBONTANA 1 9 7 7 STATE ex rel. JOHN G. WINSTON, C o u n t y A t t o r n e y , P l a i n t i f f and A p p e l l a n t , THE DISTRICT COURT OF THE SECOND J U D I C I A L DISTRICT OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF BUTTE-SILVER BOW, AND THE HONORABLE JAMES D. FREEBOURN, PRESIDING JUDGE, R e s p o n d e n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For A p p e l l a n t : Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a John G. Winston, C o u n t y A t t o r n e y , B u t t e , M o n t a n a C r a i g P h i l l i p s argued, D e p u t y C o u n t y A t t o r n e y , B u t t e , M o n t a n a For R e s p o n d e n t : H e n n i n g s e n , Purcell and G e n z b e r g e r , B u t t e , M o n t a n a R e x F. H e n n i n g s e n argued and John Jardine argued, B u t t e , M o n t a n a S u b m i t t e d : June 2 2 , 1 9 7 7 D e c i d e d : ,)UL 26 1 9 a Filed: J& 36 1977 mfi)hfk, C l e r k M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Defendant Theodore Nelson, charged with t h e crime of d e l i b e r a t e homicide, and t h e s t a t e of Montana, by John G. Winston, County Attorney, S i l v e r B o w County, p e t i t i o n f o r s e p a r a t e w r i t s of supervisory c o n t r o l . Because p e t i t i o n e r s a r e a d v e r s a r i e s i n t h e same criminal proceeding, t h e i s s u e s r a i s e d by t h e s e p e t i t i o n s were combined f o r argument before t h i s Court and both w i l l be decided pursuant t o t h i s opinion. On January 4 , 1977 an Information was f i l e d i n t h e d i s t r i c t c o u r t , S i l v e r B o w County, charging defendant with d e l i b e r a t e homicide under s e c t i o n 94-5-102(1)(a), R.C.M. 1947. Defendant plead not g u i l t y and f i l e d a timely n o t i c e of i n t e n t t o r e l y on t h e a f f i r m a t i v e defense of mental d i s e a s e o r d e f e c t . He was admitted t o b a i l a f t e r examination by William N. Alexander, M.D., whom defendant had h i r e d t o conduct such examination. O n January 17, 1977, pursuant t o s t i p u l a t i o n of counsel, t h e d i s t r i c t c o u r t ordered defendant be admitted t o Warm Springs S t a t e Hospital f o r p s y c h i a t r i c examination and evaluation i n accordance with s e c t i o n 95-505, R.C.M. 1947. Defendant was examined again by D r . Alexander i n h i s c a p a c i t y a s C l i n i c a l D i r e c t o r and Chief of Forensic Medicine a t t h e Montana S t a t e Hospital a t Warm Springs. D r . Alexander submitted h i s r e p o r t t o t h e c o u r t on A p r i l 6 , 1977. The r e p o r t s t a t e d , i n p e r t i n e n t p a r t : " P a t i e n t i s aware of t h e nature of t h e charges a g a i n s t him and i s a b l e t o a s s i s t h i s lawyer i n h i s own defense. He i s a l s o a b l e t o appreciate t h e c r i m i n a l i t y of t h e charges. A t t h e t i m e of t h e i n c i d e n t which l e d t o t h e p r e s e n t charges it i s f e l t t h a t t h e p a t i e n t was unable t o conduct himself according t o t h e requirements of t h e law because he had reached t h e climax of a severe adjustment r e a c t i o n which had temporarily assumed psychotic proportions. A t t h a t p o i n t he was unable t o have a p a r t i c u l a r s t a t e of mind which i s an element of t h e offense charged.* * *" Upon receipt of this report defendant filed a motion for acquittal by reason of mental disease or defect, and a hearing was held. At the hearing Dr. Alexander testified in his opinion defendant was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law at the time of the killing. The state called no rebuttal witnesses, but cross-examined Dr. Alexander extensively regarding the factual basis for his diagnosis and the subjective nature of a psychologi- cal examination. Dr. Alexander stated his diagnosis was based upon the facts surrounding the incident as related to him by defendant, and while he thought defendant was telling the truth, his diagnosis could change if the facts were not as defendant claimed them to be. He also stated it was possible, though unlikely, that his opinion would be disputed by his colleagues. The district court found: "That the question of whether defendant was aware or unaware of his actions or whether he was able or unable to have a particular state of mind at the designated moment is disputable". The court denied the motion for acquittal. Did the district court err in denying defendant's motion for acquittal? Defendant argues that under section 95-503(a), R.C.M. 1947, he need only prove mental disease or defect excluding responsibility by a preponderance of the evidence, and the only evidence before the court, the testimony of Dr. Alexander, clearly establishes this proof. The structure for the procedure in question is set out in section 95-507(1), R.C.M. 1947: "If the report filed under section 95-505 finds that the defendant at the time of the criminal conduct charged suffered from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested by the attorney prosecuting or the defendant, is satisfied that the mental disease or defect was sufficient to exclude responsibility, the court on motion of the defendant shall enter judgment of acquittal on the ground of mental disease or defect excluding responsibility." This Court has previously discussed the purpose of section 95-507(1). In State ex rel. Krutzfeldt v. District Court, 163 Mont. 164, 170, 515 P.2d 1312, the Court noted: "* * * the Revised Commission Comment to section 95- 507, R.C.M. 1947, in regard to subdivision (a), states in part: "'Under subdivision (a) in cases of extreme mental disease or defect where the exclusion of responsibility is clear, trial can be avoided and the defendant immediately com- mitted as irresponsible.' "That comment makes it clear that if, in the judge's opinion and after a hearing if requested by either attorney, a defendant was clearly suffering from mental disease at the time of the crime then the judge can acquit the defendant and have him committed to a state institution forthwith. The purpose is plain--to avoid a costly trial where the mental defect is plain and obvious.* * *" At this stage of the process, the^ the question is not one of the preponderance of the evidence, but whether the exclusion of criminal responsibility due to mental disease or defect is "plain and obvious". If it is not plain and obvious, a trial should be conducted and the trier of fact can determine the preponderance of the evidence. The summary procedure outlined by section 95-507 was never designed to replace the trial where the issue of criminal responsibility is disputable. In Krutzfeldt this Court held this procedure does not preclude a defendant from raising the defense of mental disease or defect at trial. Such a holding would be unnecessary if the standard of proof at the hearing was equivalent to the standard at trial. Defendant argues he is entitled to acquittal as a matter of law under the authority of State ex rel. Main v. District Court, 164 Mont. 501, 525 P.2d 28. Main is deceptively similar to the instant case, but there are critical differences. In Main, relator filed a motion to dismiss on the grounds of mental disease or defect and a hearing was held under section 95-507, R.C.M. 1947. Dr. M. F. Gracia testified relator was not responsible at the time of the criminal conduct charged. The only doubt was cast by another psychiatrist, Dr. Moisey, who testified that, in his opinion, relator was not so mentally disturbed he did not know what he was doing. However, he admitted he was unable to determine relator's state of mind at the time of the incident, and this Court held Dr. Moisey's testimony was thereby rendered incompetent and thus raised no factual issue. There was no doubt cast upon the testimony of Dr. Gracia, except for the incompetent testimony of Dr. Moisey, so relator was entitled to an acquittal as a matter of law. We noted the persuasive basis for Dr. Gracia's opinion in Main: "* * * Dr. Gracia based his opinion on (1) an examination of relator several weeks after the alleged crime; (2) upon extensive psychological testing and medical examination including observation by staff personnel every day for several years; (3) upon the study of relator's social history and history of mental illness dating back to 1962; and (4) the doctor's personal contact with relator beginning in 1966." 164 Mont. 509 In the instant case, by contrast, Dr. Alexander based his opinion on his examination of defendant which lasted six to seven hours in total. While we do not doubt this is adequate for a complete and thorough psychiatric examination, it is a fact Dr. Alexander's findings were largely based on the facts of the occurrence as related to him by defendant. The alleged temporary insanity was admittedly of short duration, and Dr. Alexander testified his diagnosis could change if the facts were not in accord with defendant's version of the incident. For example, this colloquy occurred between the county attorney and Dr. Alexander on cross-examination: "Q. But the question is anyway, the question: Your opinion would change if you knew he had a loaded gun before he got there? A. Yes, sir. "Q. And he's the only one that told you that. You don't know the facts of that do you? A. I do not." We did not hold in Main, and do not intend to hold, that the district judge is absolutely bound by the opinion of an expert testifying on the ultimate issue of mental disease or defect. We do not believe the statute intended to make the examining psychi- atrist into the trier of fact. While State v. Taylor, 158 Mont. 323, 335, 491 P.2d 877, dealt with the release of a defendant from commitment after his sanity was allegedly restored, the reasoning there with regard to the opinion testimony of experts is applicable: "While the determination of defendant's mental condition and his expected behavior, if released, must be on the basis of expert testimony, the trial court could weigh such opinion evidence but he is not bound by it. He could reject it if, in his judgment, the reasons given for the testi- money were unsound." 158 Mont. 335 In the instant case, while the opinion of Dr. Alexander is uncontradicted by any other testimony, the district judge could properly have found his opinion was based upon determinations of fact which were for a jury to determine. Therefore, the existence of mental defect at the time of the incident was not so "plain and obvious" as to require an acquittal at this stage of the proceeding. Accordingly,the district court's denial of defendant's motion for acquittal is affirmed. The state in its application for a writ of supervisory control alleges that the trial court abused its discretion by its denial of the state's motions for: (1) The examination of defendant by another psychiatrist; (2) the listing of additional witnesses on the Information; and (3) a continuance until July 15, 1977, due to the unavailability of key witnesses. The continuance issue would appear to be moot at this time and will not be discussed. Defendant argues the issues raised by the state do not fall within section 95-2403, R.C.M. 1947, governing the scope of appeal by the state in a criminal case. An application for a writ of supervisory control before this Court is an original proceeding and not an appeal. Jurisdiction is not denied by the fact the relator has no right to an appeal. Defendant's jurisdictional argument is without merit. The state seeks an examination of defendant by another qualified psychiatrist under the authority of section 95-507(2), R.C.M. 1947: "When either the defendant or the state wishes the defendant to be examined by a qualified psychiatrist or other expert, selected by the one proposing the examination, the examiner shall be permitted to have reasonable access to the defendant for the purpose of the examination." This is expanded upon by the Revised Commission Comment to the original section 95-507: "Subdivision (b) [now subdivision (2) ] allows both the prosecution and defense access to the defendant for purposes of psychiatric examinations. The sheriff or warden must make the defendant accessible for such examinations. The number of times the defendant must be made accessible for such examina- tions will rest in the discretion of the court." Despite the fact this statute expressly gives the prosecu- tion or the defense the right to an examination of defendant, defense counsel argue the title of section 95-507 restricts the benefit of the statute to defendant. The title is: "Determination of irresponsibility on basis of report -- access to defendant by psychiatrist of his own choice -- form of expert testimony when the issue of responsibility is tried." Defendant's imaginative argument is that allowing a psychiatrist o f the state's choice to have access to defendant would violate Art. V, section 11(3), 1972 Montana Constitution, which states: "Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void." This provision obviously refers to acts or bills, but does not refer to sections within each act. The title of the act creating section 95-507 is contained in the Laws of 1967, Chap. 196, and states: "An Act Creating a Montana Code of Criminal Procedure to Codify and Generally Revise the Statutes Which Govern Court Procedures in Criminal Matters." Section 95-507 was amended by the Laws of 1974, Chap. 120, entitled: "AN ACT FOR THE CODIFICATION AND GENERAL REVISION OF THE LAWS RELATING TO THE DEPARTMENT OF INSTITUTIONS." Patently these acts were codifications and general revisions and possessed adequate titles. The constitutional provision requiring acts to have complete titles has never been applied to the sec- tions within each act, and defendant has cited no authority. Alternatively, defendant argues section 95-507(2) allows not a substantive psychiatric examination but merely an inquiry into the procedure and credibility of the psychiatrist who reported under section 95-505. The plain language of section 95-507(2) and the Revised Commission Comment however, refer to a psychiatric examination of the defendant. The purpose of subsection (2) be- comes clear in subsection (3) of section 95-507, which states in pertinent part: "* * * both the prosecution and the defense may summon any other qualified psychiatrist [other than the reporting psychiatrist who was appointed under section 95-5051 or other expert to testify, but no one who has not examined the defendant is competent to testify to an expert opinion with respect to the mental con- dition or responsibility of the defendant, as dis- tinguished from the validity of the procedure followed by, or the general scientific propositions stated by another witness." Clearly, any psychiatrist or other expert may testify regarding defendant's mental condition or responsibility provided the psychiatrist has examined the defendant. Subsection (2) allows for such an examination by either the prosecution or the defense. The remaining question is whether the trial court abused its discretion in refusing to allow an examination of defendant by a psychiatrist other than Dr. Alexander, since the number of additional examinations allowed under section 95-507 is within the discretion of the trial court. Revised Commission Comment, section 95-507, R.C.M. 1947. There are two main considerations: 1. Prior to examining defendant pursuant to stipulation of counsel, Dr. Alexander was hired by defendant to examine him for purposes of bail. This at least raises a conflict of interest. 2. The district court found Dr. Alexander's conclusions to be "disputable". If the conclusions of the only expert who has examined defendant are found to be disputable, it would appear to be sensible to allow at least one other psychiatrist to examine and either confirm or dispute the findings of the initial expert. In light of these circumstances, we hold the district court abused its discretion in refusing to allow access to the defendant by a psychiatrist, in addition to Dr. Alexander. The state also seeks reversal of the denial by the district court of the state's motion, made six days before the trial was to commence, to add to the Information the names of approximately twenty witnesses. The state alleges these witnesses were dis- covered after the original Information was filed and are necessary to prove the state's case in light of defendant's affirmative defense of mental disease or defect. Section 95-1503(d), R.C.M. 1947 states: "If the charge is by information or indictment, it shall include endorsed thereon, the names of the witnesses for the state, if known." Also applicable is section 95-1803(a) (1) (2), R.C.M. 1947: "In all criminal cases originally triable in dis- trict court the following rules shall apply: " (a) List of Witnesses: "(1) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and file with the clerk of the court at the time of arraignment, a list of witnesses intended to be called by the prosecution. The prosecution may, any time after arraignment, add to the list the names of any additional witnesses, upon a showing of good cause. The list shall include the names and addresses of the witnesses. " (2) The requirement of subsection (a) (1) , of this section, shall not apply to rebuttal witnesses." The proper procedure to be followed when the state moves to list additional witnesses is set out in State v. Klein, Mont . "The court should first determine whether the need for the additional witnesses and the reason for their not being disclosed earlier is a 'substantial reason'. It should then determine whether there is prejudice based on surprise and whether this surprise can be overcome by the granting of a continuance. If the surprise element can be overcome by a continuance, then the witnesses should be endorsed and the continuance granted. The spirit and intent of the law is that the names and addresses of potential witnesses should be disclosed as soon as they are known. " Here, the state claims and the defense does not deny the witnesses are material to the question of defendant's responsibility and they were unknown to the state at the time the Information was filed. The defense claims prejudice in that on the one hand, it would have no time to prepare for trial if the witnesses were added, and on the other hand, if a continuance were granted, defen- dant would be prejudiced by an unnecessary delay. Defendant cannot have it both ways. If good cause to list the additional witnesses is shown, as here, and if any prejudice caused by defendant's surprise can be overcome by the granting of a continuance, the additional witnesses should be listed. The district court's denial of the state's motion to list additional witnesses is reversed. Finally, the state asks this Court, to rule on an issue collateral to those in its petition for a writ of supervisory control for the reason that the issue might arise at trial, if the state was denied a psychiatric examination of defendant. This issue is not properly before the Court and the state's motion is denied. In summary, the district court's denial of defendant's motion for acquittal is affirmed. The district court's denial of the state's motions for a psychiatric examination and to list addi- tional witnesses on the Information is reversed. The cause is remanded to the district court with instructions to allow for a psychiatric examination of defendant and to allow the listing of the additional witnesses on the Information pursuant to the state's motion. n Justices

July 26, 1977

f252167a-8409-4eae-b6a1-11ec4d63cb42

JOHNSON v JOHNSON

N/A

13380

Montana

Montana Supreme Court

No. 13380 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 KENNETH F. JOHNSON, Plaintiff and Appellant, HOWARD R. JOHNSON and CARRIE M. JOHNSON, Defendants and Respondents. Appeal from: District Court of the Fifteenth Judicial District Honorable L. C. Gulbrandson, Judge presiding Counsel of Record: For Appellants: Habedank, Cumming and Best, Sidney, Montana Otto T. Habedank argued, Sidney, Montana For Respondents: John M. McCarvel argued, Great Falls, Montana Submitted: January 14, 1977 Filed: BAR 5 6 1 g q Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff filed an action against his brother and his brother's wife seeking ( 1 ) a reconveyance of a half section of farmland to him, ( 2 ) to quiet title to the land, and ( 3 ) an accounting of crop proceeds. The district court of Sheridan County, the Honorable L. C, Gulbrandson, district judge, presiding, granted summary judgment to defendants. Plaintiff appeals. Plaintiff's complaint in essence alleges a conveyance by him to his brother in 1953 by warranty deed absolute on its face; that the deed was given without consideration and upon an express oral agreement to reconvey; and a request for and refusal to reconvey on October 2, 1974; The complaint seeks to impress a trust on the land and compel a reconveyance to plaintiff. ~efendants' answer in substance denies the existence of an oral agreement to reconvey or any trust in the land and sets up the following affirmative defenses: ( 1 ) Laches, ( 2 ) estoppel, ( 3 ) statute of limitations, ( 4 ) waiver, ( 5 ) statute of frauds, and ( 6 ) adverse possession. Pretrial discovery consisted of interrogatories by defendants and answers by plaintiff, depositions of plaintiff and both de- fendants, and documentary exhibits. Defendants moved for summary judgment which was granted by the district court, The single issue on appeal is whether summary judgment was proper. The record before the district court disclosed that John P. Johnson, father of plaintiff Kenneth Johnson and defendant Howard Johnson, owned a farm in Sheridan County, Montana. In $22 December -f 2 , the father and h i s wife deeded a half section of the farmland t o Kenneth and another half section t o Howard. A t t h a t time Kenneth was a single man with the United States A i r Force i n California. I n May 1953, the father traveled t o California t o secure a conveyance from Kenneth of h i s half section of the farmland. Although a dispute e x i s t s concerning the reason f o r t h i s , the record establishes it was f o r one o r both of these reasons: (1) A s an e s t a t e planning precaution should Kenneth lose h i s l i f e i n the Korean c o n f l i c t , (2) f o r f e a r the land would be l o s t i n p o t e n t i a l l e g a l action a r i s i n g out of Kenneth's in- volvement with a married woman. According t o the record, the o r i g i n a l idea was f o r Kenneth t o t r a n s f e r the land t o h i s married s i s t e r , Arlene Petersen, who lived i n California. How- ever, she indicated Howard would be b e t t e r able t o take care of the land a s he was l i v i n g on the farm. B y deed dated May 12, 1953, Kenneth conveyed the half section of land i n question t o Howard. This deed was absolute on i t s face and made no mention of a t r u s t . O n the face of the deed appeared $8.80 i n federal documentary stamps indicating a consideration of $8,000 f o r the transfer. The documentary stamps were dated and i n i t i a l e d with Kenneth's i n i t i a l s . Kenneth denies receiving any money o r consideration f o r the deed o r transfer. Kenneth signed and f i l e d a federal gift t a x return covering the calendar year 1953. H e s t a t e d i n t h i s return t h a t the t r a n s f e r was a g i f t , t h a t the value of the Land a t the time of t r a n s f e r was $8,000 and t h a t no t r u s t was created. Kenneth was discharged from the military service and returned home t o Sheridan County i n December 1955. Thereafter Kenneth and Howard farmed the e n t i r e section of land. Kenneth, Howard and t h e i r f a t h e r each received a share of the crops u n t i l the death of the father i n November 1965. Following the f a t h e r ' s death, Kenneth and Howard continued t o farm the land with each receiving a share of the crop. The precise arrangement on sharing the crops, payment of taxes, and sharing of expenses i s a subject of dispute i n the record. Kenneth married i n 1959. An exhibit t o Howard's deposition is a l e t t e r from t h e i r father t o Howard dated January 2, 1960, s r a t i n g "Kenneth knows t h a t he has not any t i t l e o r r i g h t t o any of the homestead o r half sec. t h a t I bought from Sparling" and t h a t Kenneth t o l d him it would not work "so he don't need t o t e l l himself. o r anyone t h a t t h a t 112 sec. i s his1'. Kenneth denied knowledge% of t h i s l e t t e r . I n March 1965, conveyances were executed by Howard and h i s wife vesting the half section of land i n question i n themselves a s j o i n t tenants. The deeds creating the j o i n t tenancy were recorded i n the o f f i c e of the c l e r k and recorder of Sheridan County on March 1, 1965. I n 1968, Kenneth secured a loan from the Production Credit Association. I n the loan application he was asked t o l i s t the land he owned. Kenneth admitted i n h i s deposition t h a t he did not l i s t the half section i n question. I n 1971, Howard mortgaged some land t o the Federal Land Bank f o r $56,000. Included i n the mortgage was the half section of land i n question. I n 1973 and 1974, Kenneth delivered 113 of the crop t o Howard pursuant e i t h e r t o an agreement between Howard and Kenneth o r a t Howard's request. During the years they farmed the section of land together Kenneth listed his income as a share of the crops sold. Kenneth's answers to defendants' interrogatories state there was an oral agreement by Howard to reconvey the land made at the farm in Sheridan County in December 1952,and in San Mateo, California in May 1953; that he has no writing substan- tiating this; that the witnesses to the oral agreement were himself, Howard, their father, and their sister, Arlene Petersen; that he deeded the property over to Howard at the request of his father and sister, Arlene Petersen; that he did not request recovery prior to October 2, 1974, because he had no reason to believe Howard was holding the land other than as a trustee prior to that time; that he in effect paid taxes on his half section by dividing the crops equally because his half section had more farmland than'-Howard's half section and Howard received the use of feed grown to offset the payment of taxes. Kenneth's deposition reflects similar testimony in con- siderably more detail. Additionally, it indicates that on June 30, 1964, he went with Howard to Ludwig Tande's office in Plentywood, Montana, and signed an affidavit that he was single when he deeded the half section to Howard to enable Howard to mortgage the land in question. No deposition was taken of Arlene Petersen, their sister. The basis of the summary judgment granted defendants as reflected in the district court's order was: ( 1 ) There was no genuine issue as to any material fact; ( 2 ) Kenneth was guilty of laches; ( 3 ) he is estopped to allege ownership in the land; ( 4 ) his action is barred by the statute of limitations; and ( 5 ) he has waived any right, title or interest in the land. The law r e l a t i n g t o summary judgments, Rule 56, M.R.Civ.P., has been construed i n d e t a i l i n a long l i n e of Montana cases and recently was substantially summarized i n Harland v. Anderson, Mont . , 548 P.2d 613, 615, 33 St.Rep. 363,365. I n essence summary judgment i s not a s u b s t i t u t e f o r a t r i a l ; it can only be granted where t h e record discloses no genuine issue of material f a c t and the moving party i s e n t i t l e d t o judgment a s a matter of law; and where the absence of any genuine issue of material f a c t i s disclosed by the record, the burden i s on the party opposing summary judgment t o come forward with evidence creating a genuine issue of material f a c t t o be determined a t t r i a l . I n Harland the Court said: "The primary policy and general purpose underlying Rule 56, M.R.Civ,P., i s t o encourage j u d i c i a l economy through the prompt elimination of questions not deserving of resolution by t r i a l . " With these principles i n mind, we d i r e c t our a t t e n t i o n t o the defense of laches which i s one basis on which the d i s t r i c t court granted summary judgment t o defendants. The doctrine of laches was s e t f o r t h a t some length i n Riley v. Blacker, 51Mont. 364, 370, 371, 152 P. 758, applied i n Hynes v. Silver Prince Mining Co., 86 Mont. 10, 281 P. 548 and Montgomery v. Bank of Dillon, 114 Mont. 395, 136 P.2d 760; and c i t e d i n Davis v-Steingruber, 131 Mont. 468, 311 P.2d 784: "Laches, considered a s a bar independent of the s t a t e of limitations, i s a concept of equity; it means negligence i n the assertion of a r i g h t ; it is the p r a c t i c a l application of t h e maxim, ' ~ q u i t y a i d s only the v i g i l a n t ' ; and it e x i s t s when there has been unexplained delay of such duration o r character a s t o render t h e enforcement of the asserted r i g h t inequitable. Therefore has it often been held by t h i s court t h a t : While a mere delay short of the period of the s t a t u t e of limitations does not of i t s e l f r a i s e the presumption of laches [ c i t i n g cases] yet 'good f a i t h and reasonable diligence only can call into activity the powers of a court of equity, and, independently of the period fixed by the statute of limitations, stale demands will not be entertained or relief granted to one who has slept upon his rights. Con- sideration of public policy and the difficulty of doing justice between the parties are sufficient to warrant a court of equity in refusing to institute an investigation where the lapse of time in the assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, no matter how apparently just his claim may be; and this is particularly so where the relations of the parties have been materially altered in the meantime.' [Citing cases] What consti- tutes a material change of condition has been the subject of much judicial discussion and some judicial dissention; but whatever doubt there may be as to other circum- stances, it never has been questioned, to our knowledge, that the death of one of the parties to the transaction is such a change. 'A specific application of the general rule just stated is in the refusal of the courts to afford relief to one who has lain idly by until the important witnesses to the transaction involved have died.* * * I 1 ' In this case there is a genuine issue of material fact concerning the existence of an involuntary trust by operation of law in 1953, at the time the half section of land was deeded by Kenneth to Howard. The record is sufficient to establish a factual issue as to whether the transfer was without con- sideration (resulting trust) or a transfer based on an oral agreement to reconvey (constructive trust). Therefore we must assume, arguendo, that the half section of land was impressed with a trust in favor of Kenneth by operation of law in 1953. Thereafter the record shows, without contradiction, the following facts actually known by Kenneth or of which he is chargeable with knowledge: 1 . The deed of the half section of land from Kenneth to Howard, in 1953, was absolute on its face, indicated a consideration of $8,000 by federal documentary stamps on its face and was recorded in May 1953. 2 . Kenneth filed a federal gift tax return in 1954 covering the 1953 transfer in which he stated under penalties of perjury that the transfer was a gift to Howard and that no trust was created in 1953. 3. In June 1964, Kenneth executed an affidavit that he was a single man at the time of the 1953 deed to enable Howard to mortgage the land in question. 4. In March 1965, the alleged trustee, Howard, executed and recorded conveyances vesting the land in question in Howard and his wife as joint tenants. 5. In November 1965, the father died. 6. In 1968, Kenneth applied for a loan in which he was asked to list the land he owned and he did not list the land in question. 7. In 1973 and 1974, Kenneth delivered 113 of the crop to Howard. Additionally, Kenneth stated in his answers to interroga- tories and in his deposition that the first time he asked Howard to reconvey the land back to him was on October 2, 1974, because he had no reason to believe Howard was holding the land other than as trustee and would refuse to reconvey. We hold that under these circumstances laches is established as a matter of law. Kenneth's is a stale claim based on a transaction that occurred more than 21 years prior to his first request for reconveyance and more than 23 years before suit was filed. There was a material change in circumstances by reason of the father's death some 9 years prior to Kenneth's first request for reconveyance and more than 11 years before suit was filed. The alleged trustee, Howard, was in the process of mortgaging the property in June 1964, a fact known to Kenneth. The alleged trustee, Howard, placed the property i n joint tenancy with h i s wife i n March 1965, and recorded the convey- ances, a l l i n derogation of the powers and duties of a trustee. Kenneth c i t e s Opp v. Boggs, 121 Mont. 131, 193 P.2d 379, for the rule that the statute of limitations does not begin t o run with respect t o a constructive t r u s t u n t i l r e f u s a l ' by the trustee t o carry out the t r u s t by reconveyance. However, laches, unlike the statute of limitations, begbns.: t o run when the t r u s t is created by operation of law. The rule i s stated r~ i n t h i s language i n 76 Am Jur 2d, Trusts, 5597, p. 804: "Laches constitutes a defense t o a s u i t t o declare and enforce a constructive t r u s t ; and for the purpose of the rule, repudiation of the constructive t r u s t i s not required, and time runs from the moment that the law creates the t r u s t , which i s the time the cause of action arises." See also: Stianson v. Stianson, 40 S.D. 322, 167 N . W . 237, 6 A.L.R. 280. Here, Kenneth has slept on the claim he now seeks t o enforce for over 23 years. A material witness to the transaction died more than 10 years prior t o suit. The alleged trustee committed an act i n derogation of the t r u s t some 12 years prior t o s u i t , viz. mortgaging the property. The alleged trustee committed another a c t i n derogation of the alleged t r u s t more than 1 1 years prior to s u i t of which Kenneth i s chargeable with knowledge, Qiz. placing the property i n joint tenancy with h i s wife. Laches is established as a matter of law, justice cannot now be accomplished because of the lapse of time and the material change i n the circumstances, and equity w i l l not intercede 23 years l a t e r t o aid Kenneth i n establishing a claim he has failed t o assert for over 20 years. As Kenneth's claim is barred by laches as a matter of Law under the undisputed facts set forth above, no useful purpose would be served by discussing the additional grounds on which the district court predicated its summary judgment. The summary judgment is affirmed. Justice We Concur: 7 I , r: (457 " 7 7' -.-- -. [ + r--c;J >4&,&w Chief Jystice " a ' ,

March 15, 1977

6711782f-64d5-4f68-9f10-c628ae162846

State v. Corliss

150 Mont. 40, 430 P.2d 632

11099

Montana

Montana Supreme Court

430 P.2d 632 (1967) 150 Mont. 40 The STATE of Montana, Plaintiff and Respondent, v. Charles Edward CORLISS, a/k/a Charles Edward Hayes, Defendant and Appellant. No. 11099. Supreme Court of Montana. Submitted May 9, 1967. Decided July 25, 1967. Rehearing denied August 14, 1967. *633 Lloyd J. Skedd, Helena, for appellant. Forrest H. Anderson, Atty. Gen., Thomas as J. Hanrahan, County Atty., Donald A. Garrity, Asst. Atty. Gen., Helena, for respondent. PER CURIAM. This is an appeal by defendant in a criminal action from a judgment entered on a jury verdict of guilty of the crimes of murder in the first degree and kidnapping with the intent to secretly confine. The jury left the punishment to be fixed by the district court. The district court imposed a sentence of life imprisonment for the crime of murder in the first degree and a sentence of ten years for the crime of kidnapping with the intent to secretly confine. Both sentences are to run consecutively. Defendant-appellant is Charles Edward Corliss, also known as Charles Edward Hayes, and will be referred to as defendant. Defendant's brief sets forth thirty-two specifications of error. From these specifications of error, eleven issues are presented to this court for review. *634 Before considering the issues presented for review which are relevant, we will make a brief statement of the facts in this case. Additional facts that are important for a complete understanding of the various issues discussed will be added during the course of the opinion. On September 14, 1965, Donald Hammer, the owner and operator of a post yard in Lincoln, Montana, was kidnapped, robbed, and murdered. The exact details concerning Mr. Hammer's tragic death will never be known for this senseless murder was perpetrated by two individuals both of whom have sought to place the blame on the other. But from either man's story the following events can be gleaned. David Clinton Walters, a youth of 18 years, and defendant, who was 25 years of age, drove in a borrowed Oldsmobile car, to the office of Donald Hammer at his post yard in Lincoln. They asked him about the post sizes that he bought and the prices he would pay for these posts. Mr. Hammer invited them into his office to give them the desired information. Once inside, they drew a gun on Mr. Hammer and asked him to write out a check. When he could not do this since his checkbook was not in the office, they ordered him out of his office and into the back seat of the car. They then drove him toward Great Falls and robbed him of the money in his wallet. They stopped at a point about 15 miles east of Lincoln. One or both of them marched Mr. Hammer into the trees alongside the highway, and Donald Hammer was then shot in the back of the head and left to die. Defendant's first issue presented for review is: "Whether or not a person may be held to answer for a capital crime without presentment or indictment by a grand jury?" On September 28, 1965, County Attorney Thomas J. Hanrahan of Lewis and Clark County filed a motion for leave to file information direct in the district court against defendant and David Walters, leave to file was granted, and the imformation charging defendant and Walters with murder and with kidnapping with intent to secretly confine was filed. Defendant moved to quash this information, but the motion was denied. Defendant was actually tried under an amended information filed January 19, 1966, and also filed direct in the district court. The amended information charged only defendant with the crimes as Walters had previously pled guilty to both crimes. However, in his brief, defendant appears to take issue generally with the practice of obtaining leave to file the information direct in the district court. It is rather surprising that there would be an objection to the information procedure of charging a crime at this late date. Charges made by informations filed after a hearing before a magistrate, or by leave of the district court, have long been sanctioned by statute and by the Montana Constitution, Art. III, § 8; Sections 94-4904, 94-6201, R.C.M. 1947. State ex rel. Juhl v. District Court, 107 Mont. 309, 84 P.2d 979, 120 A.L.R. 353, analyzed several decisions of this court approving the information procedure and set forth rules which guide the discretion of the court to either grant or deny leave to file an information. The Supreme Court of the United States first held that a state could proceed against criminal defendants by information rather than indictment in Hurtado v. People of State of California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232, decided March 3, 1884, and in Beck v. Washington, 369 U.S. 541, 545, 82 S. Ct. 955, 957, 8 L. Ed. 2d 98, decided May 14, 1962, commented on the Hurtado case in this manner: "Ever since Hurtado v. [People of State of] California, 110 U.S. 516, 4 S. Ct. 292, 28 L. Ed. 232 (1884), this Court has consistently held that there is no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions." Defendant's second issue is: "Does `due process of law' require the State to furnish a bill of particulars where the crime charged is not detailed enough to determine the statute allegedly violated?" *635 Defendant here is asking this court to overrule State v. Bosch, 125 Mont. 566, 242 P.2d 477, and hold the district court in error for failure to grant defendant's request for a bill of particulars. State v. Bosch, supra, held that the existence of a code of criminal procedure is complete and since it contained no provision for a bill of particulars the trial court had no authority to require that one be furnished. Defendant's reason for asking for reversal of the Bosch case is that "due process" requires that he be charged in a manner that will enable him to prepare a defense. The reason advanced cannot be accepted because it relates to the sufficiency of the information and does not in any way raise the issues discussed in the Bosch case. We shall discuss hereafter the sufficiency and clarity of the charge. The next issue to be considered is defendant's third issue: "Whether or not a statement by the accused, in the absence of counsel, was made at a time the investigation had focused on him such as to render it inadmissible." The facts leading up to defendant's statements are these: Mr. Hammer was reported missing to the deputy sheriff in Lincoln on the evening of September 14, 1965. The deputy sheriff in turn reported Mr. Hammer's absence to Sheriff Middlemas in Helena on the morning of September 16, 1965. Sheriff Middlemas during the course of his investigation found out from an employee of the missing Hammer that on September 14th he saw Hammer come to the post yard and go into his office; shortly afterwards he saw an Oldsmobile car leave the yard. While the employee was not absolutely certain of the color of the automobile he thought it was either light gray or light tan. The Sheriff was in the radio room listening to the law enforcement officers' radio network from about eleven a.m. on that morning and around one o'clock he overheard a conversation from Choteau, the Sheriff there stating that a young fellow in a gray Oldsmobile had been arrested at Choteau the morning before September 15th, and the young man and automobile had been returned to Conrad. Middlemas immediately called the sheriff at Conrad and asked him to casually question this young man and see if he would place himself in the vicinity of Lincoln on Monday, September 14th, or Tuesday, September 15. The Conrad sheriff did so and called Middlemas back and said that the young man placed himself in Lincoln on Monday. Middlemas, pursuing this slim lead, left for Conrad that same afternoon, and as he explained at the trial, he was primarily looking for a missing man, Hammer, and he did not know whether he was dead or alive but hoped he was alive. On that evening at Conrad, Walters told Sheriff Middlemas his version of the crimes, implicating the defendant, gave a written statement and agreed to try to point out the spot where Mr. Hammer had been led into the forest, and according to his version had been tied to a tree. Mr. Hammer's body was discovered on September 18, 1965, when Walters was taken to the scene a second time. The search had been hampered by new fallen snow in the rugged terrain of the Continental Divide in the Stemple Pass area. Walter's version of the crimes was released to the press, and the press was kept informed of the search activities. Defendant was aware of these activities from his jail cell as he had access to a radio and newspapers. Deputy Sheriff Laurence L. Lytle first interviewed defendant on September 21, 1965, and fully advised him of his rights. In this interview defendant kept telling Deputy Sheriff Lytle that no one wanted to listen to his side of the events. On September 25, 1965, defendant gave a statement to County Attorney Hanrahan and Sheriff Middlemas in which he set forth his version of the crimes. The statement was transcribed by W.J. May, the court reporter in Conrad. Defendant was warned of his various constitutional rights once again as he had been each time any law enforcement officer talked with him in connection with Donald Hammer's disappearance and subsequently discovered murder. Immediately following this statement, defendant and Walters at the request of *636 each of them, gave a joint statement in each other's presence. Before taking the written statement from defendant, County Attorney Hanrahan gave the following warning: "Chuck, this is Dave Middlemas, the Sheriff of Lewis and Clark County, and I am Tom Hanrahan, the County Attorney of Lewis and Clark County, and this is Mr. May, an official court reporter. I have previously advised you, but I want to advise you again that you don't have to make any statement to us, that any statement you may make can be used against you, that you can have the services of an attorney at any time you want. I am not going to make you any promises to get you to discuss this matter, and I am certainly not going to threaten you. You understand that, do you? A. Yes. [By defendant.]" Defendant's brief does not suggest that the statements were not voluntary. Defendant's brief does not contend that defendant was not properly advised of his constitutional rights. Rather, defendant's brief states: "Although there is authority to the contrary, once an investigation of a crime focuses on an accused, a confession given by him in the absence of counsel is inadmissible." The brief then refers this court to four cases, without a discussion of the cases. Briefly these cases dealt with the following issues: failure to honor defendant's request that he be allowed counsel before being interviewed by police authorities, United States ex rel. Walker v. Fogliani, 343 F.2d 43 (U.S.C.A. 9th Cir.); failure to follow the Federal Rules of Criminal Procedure before securing the confession and misuse of the inadmissible confession during cross-examination, Johnson v. United States, 120 U.S. App.D.C. 69, 344 F.2d 163 (U.S.C.A Dist of Col.); failure to give clear warnings as to defendant's constitutional rights to remain silent and to have counsel before securing confession, People v. Dorado, 62 Cal. 2d 338, 42 Cal. Rptr. 169, 398 P.2d 361, cert. den. 381 U.S. 937, 85 S. Ct. 1765, 14 L. Ed. 2d 702, and People v. Bilderbach, 62 Cal. 2d 757, 44 Cal. Rptr. 313, 401 P.2d 921. We fail to see the applicability of any of these cases to the facts of the instant case. In this case, Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, controls, as defendant's trial was after the Escobedo case and before Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882; In re Petition of Jones, 148 Mont. 10, 416 P.2d 540. The issue of the sufficiency of the information in charging the crime of kidnapping is directly raised by defendant's fourth contention being that the court erred in not sustaining his demurrer to the information. The claim that the information is uncertain arises from defendant's conclusion that the charge of "kidnapping with intent to secretly confine" might be made equally well under section 94-2601 or section 94-2602, R.C.M. 1947. The former carries a maximum penalty of death while the latter carries a maximum of ten years imprisonment. Even considering that sections 94-2601 and 94-2602 might overlap it does not appear that the language of the information could be applied equally to both. Section 94-2601 has as one element to "attempt or cause such child or person or persons to be secretly confined * * *." This element is very different from the language of section 94-2602 which provides: "With intent to cause such person to be sent or taken out of this state, or to be secretly confined within the same against his will * * *." (Emphasis supplied.) The language of the information clearly charges a violation of section 94-2602 and it was so held in State v. Randall, 137 Mont. 534, 353 P.2d 1054, 100 A.L.R.2d 171. Count 2 is direct and certain, stated in ordinary language so that a person of common understanding can know what is intended, and enables a court to properly impose sentence after conviction; all of which is required by statute. Sections 94-6403, subd. *637 2, 94-6405, 94-6412, subd. 7, R.C.M. 1947. Thus defendant's arguments as to his second issue and this issue that he needed more specifics in order to prepare a defense are not well-taken. We move to a consideration of defendant's fifth issue: "Whether or not the accused was entitled to a change of venue." The nature of this crime was such that it gained wide-spread newspaper coverage. Walters talked willingly, though not truthfully, from the very beginning. The press covered the events as they developed. Initial reports of the crimes set forth Walters' version of the crimes blaming defendant for the murder. Despite his initial story and his continuing denial that he shot Donald Hammer, Walters chose not to stand trial; and on October 25, 1965, Walters pled guilty to the charges against him. On November 3, 1965, after a hearing in mitigation had been held a few days previous, District Judge Lester H. Loble sentenced Walters. Judge Loble expressed doubt in Walters' version concerning how the crimes had been committed. Judge Loble's comments were also reported by the press. At the hearing on the motion for change of place of trial, held on November 5, 1965, Sheriff Middlemas revealed the fact that a lie detector test had been administered to both Walters and defendant. This test, by stipulation of defendant's counsel and Walters' counsel, was administered on October 14, 1965. Sheriff Middlemas stated that this lie detector test "showed conclusively that Walters shot Mr. Hammer." This testimony also received press coverage. "It is well-settled in Montana that mere publication of a news story concerning a crime is not a deprivation of a constitutional right or a ground for a change of venue. * * * "This court has said in a number of cases concerning news articles and broadcasts that the publication in itself is not sufficient but that the affidavits must show passion and prejudice flowing from such publication; * * * "The cases in Montana have established that before a district judge can exercise his discretion in granting a change of venue there must be more than (1) affiant's unsupported opinion, (2) the fact that the account of a crime has been published, that said published accounts of the crime are not prejudicial unless they are passionate enough to excite undue prejudice, to the extent of rendering it impossible for the accused to have a jury free from prejudice." State ex rel. Hanrahan v. Dist Ct., 145 Mont. 501, 507, 508, 401 P.2d 770, 774. Defendant's contention that the pre-trial publicity of the case prevented him from selecting a jury from Lewis and Clark County that had not already formed an opinion as to his guilt is not supported by the facts. The crimes were committed against a respected citizen of Lincoln, Montana, a community containing less than two per cent of Lewis and Clark County's population and a community which is located in a remote portion of the county. All but two of the witnesses who testified at the hearing on the motion for change of place of trial expressed the opinion that defendant could obtain a fair trial in Lewis and Clark County. Defendant selected a jury without using all his peremptory challenges, and only one of the 46 veniremen examined admitted to having formed an opinion regarding defendant's guilt or innocence. Defendant's sixth issue presented for review is: "Whether or not the accused was entitled to exclude the testimony of a witness during trial when he had refused to answer questions on deposition prior to trial." As previously noted, Walters pled guilty to the charges, received his sentences, and was sent to the state prison, all before the time arrived for defendant's trial. Defendant desired to take walters' deposition, and walters was brought under court order to the courtroom of Judge Loble for the purpose of giving a deposition. However, upon the advice of his counsel, Walters refused to answer any questions that pertained *638 to the crimes which he had pled guilty to upon the ground that it might tend to incriminate him. Judge Loble refused to compel him to answer any questions. Walters was subpoenaed by the State as one of its witnesses against defendant at the trial. On the day the trial was to begin, counsel for Walters petitioned the district court on behalf of his client for a protective order for his client should Walters elect to testify in the trial of defendant. The petition requested in part that "if your petitioner, David Clinton Walters, elects to testify in the trial * * * beginning on Monday, January 10, 1966 * * * that his testimony be not used against him in any criminal action or proceeding as provided for in section 94-8804, R.C.M. 1947, and in other pertinent statutes and constitutional provisions pertaining thereto * * *." Section 94-8804 provides: "When two or more persons are jointly, or otherwise, concerned in the commission of an offense, any one of such persons may testify for or against the other in relation to the offense committed, but the testimony of such witness must not be used against him in any criminal action or proceeding." The district court granted the relief sought in the petition and entered an order accordingly. Refusing to answer questions at the taking of the deposition and seeking immunity under section 94-8804 if he elected to testify at the trial were actions of Walters upon the advice of his counsel. The state in no way influenced Walters upon the advice of his counsel. The state had no control of Walters in this respect. The state called Walters as a witness at the trial, and Walters, in light of the immunity that had been granted to him by the pre-trial order he sought, decided to testify. Defendant was given a complete opportunity to cross-examine him and to confront him. In cross-examining Walters, defendant's counsel had Walters read his statement of September 16th into the record. This procedure pointed out the main discrepancies in Walters' testimony. It should be noted that the county attorney brought out on direct examination the fact that Walters had lied on several occasions prior to the trial. It would be pure speculation upon our part as to what course the county attorney would have taken had Walters refused to testify at the trial. Such did not happen. Defendant's brief makes abstract references to various constitutional provisions, statutory sections, and case authority, but the brief does not point out any authority for his contention that Walters' action in refusing to answer questions at the deposition rendered his testimony inadmissible at the trial. As a matter of observation, it might well have been advantageous as a tactital weapon for defense counsel to have used this issue as he did; only emphasizing that even if error occurred no prejudice resulted. The seventh issue presented for review is: "Whether or not a challenge to the jury panel as a whole is proper where 300 jurors are called and 116 of them are discharged or excused from service and it is not possible from the record to determine the reason for the excuse or `who' excused them from service." Defendant objected to the jury panel as a whole, but he offered no evidence to substantiate his objection. District Judge Victor H. Fall was sworn as a witness and testified that: "It is my memory that I excused no one from this panel for any reason other than that in my opinion they were disqualified by reason of inability to serve, or had a valid excuse under the statute." Defendant offered no evidence to overcome the presumption of section 93-1301-7, subd. (15), R.C.M. 1947, that establishes that "official duty has been regularly performed" which was established by the testimony of Judge Fall. In addition, as previously noted, defendant was able to select a jury from the remaining members of the panel without even exhausting the peremptory challenges available to him. "The right to challenge is the right to reject, not to select, a juror; no *639 person can acquire a vested right to have any particular member of a panel sit upon his case unless and until such member has been accepted and sworn. [State v. Huffman, 89 Mont. 194, 198, 296 P. 789.]" State v. Moran, 142 Mont. 423, 447, 384 P.2d 777, 790. The eighth issue is: "Whether or not an indigent accused is entitled to expenses for investigation to enable him to prepare for trial." Defendant asked the trial court to provide him with at least three professional investigators to assist him in the the preparation of his defense. This request was denied and error is assigned on the theory that the investigators were necessary to render defendant's right to counsel effective. This contention is not well-taken because it appears that the defendant was provided adequate assistance. The state furnished psychiatric examinations to the defendant. Upon defendant's request the state furnished lie detector examinations. The state also granted defendant's request for a daily transcript furnished during the trial. This case is characterized by an unprecedented cooperation on the part of the county attorney who demonstrated a spirit of openness and complete disclosure. Defendant's brief and the record simply do not provide any convincing evidence of prejudice resulting from the court's refusal to underwrite the cost of investigators. Defendant's ninth issue is: "Whether or not there was sufficient competent evidence of the crimes charged to convict the accused." Defendant's tenth issue is: "Whether or not the jury was properly instructed as to the law." We think these two issues are properly considered together. The theory under which the state presented its case went about like this: Walters and defendant kidnapped and robbed Donald Hammer, and then either Walters or defendant or both shot and killed him. The state contended that since the murder was committed while a robbery was being committed that it was murder in the first degree. Finally, the state contended that it really made no difference as to whether Walters killed Donald Hammer or defendant killed him since both were guilty of murder in the first degree under the murder felony rule. (Section 94-2503, R.C.M. 1947.) At the trial the state's witnesses established that defendant and Walters had been in Lincoln before and after the time the kidnapping, robbery and murder had taken place; that Donald Hammer was seen talking to two men just prior to the time the car was seen leaving the post yard; that a car very much like the one which defendant Walters was driving when arrested was seen driving from Donald Hammer's post yard; that Donald Hammer was never seen alive after that car left the post yard; that defendant had purchased a .22 caliber single shot pistol on August 25, 1965; that the pistol was in the car when defendant and Walters were arrested; that the pistol had been fired; that the bullet which killed Donald Hammer was a .22 long rifle caliber bullet, manufactured by Western Winchester; that a box of 26 cartridges and 24 loose cartridges found in the car were the same type ammunition, that is .22 long rifle caliber bullets, manufactured by Western Winchester; that a pair of cotton gloves found in the car were like the ones used by Donald Hammer and his employees at the post yard. The state presented the testimony of David Walters. His testimony blamed defendant for the robbery, the kidnapping, and the murder. Walters did admit to handling the gun at times during the robbery and kidnapping, but he denied knowing what happened to Donald Hammer in the forest other than he heard a shot and was told by defendant that Donald Hammer was tied up. The state moved for the introduction of the statement defendant had given to the authorities and for the introduction of the statement defendant and Walters had given to the authorities, both statements having been given on September 25, 1965, and *640 they were admitted without objection. These statements were then read into the record. Defendant's own statements make it impossible to find that he was not an active participant in at least the robbery and kidnapping. We quote portions of the joint statement, making this explanatory remark. Defendant was using the name Hayes when arrested. In taking the joint statement the court reporter placed the names Hayes or Walters next to the answer to indicate which individual had made the reply. "Q. Now, once you were in there and somebody had this particular gun you knew you were going to try to take this man's money, isn't that correct? A. (Hayes) Yes, sir. "Q. And you knew you were going to take him in the car somewhere, is that correct? A. No, sir, I did not know that. (Hayes) "Q. Well, he wound up in the car, didn't he? A. (Hayes) Yes. "Q. And you certainly didn't object to that, did you? A. (Hayes) No. * * * "Q. You were involved in the robbery, weren't you? A. Yes. * * * "Q. And you certainly didn't object to this and went along with it, according to your story, is that right? A. (Hayes) I went along with it with the intention we was just going to take him and leave him some place. "Q. But you went along with it to get some money from this man, did you not? A. (Hayes) Yes, sir." We will not detail all the evidence presented, but only comment that it was certainly sufficient to support the verdict. At the close of the trial, the jury was instructed on the law, and the instructions given were in accordance with the evidence presented. We have carefully examined the instructions given and those instructions which defendant claims the district court erred in refusing. The instructions given were correct, and the instructions refused were properly refused. We will not discuss or quote all the instructions given, but we will outline those instructions which set forth the heart of this case. The jury was instructed on what constitutes murder in the first degree. They were instructed on what constitutes robbery. They were then given the following instructions: "You are instructed that all persons concerned in the commission of a crime, whether it be a felony or misdemeanor, or whether they directly commit the act constituting the offense, or aid and abet in its commission, or in being present have advised and encouraged its commission, are principals in any crime so committed." and "You are instructed that all participants in robbery or attempted robbery wherein homicide is committed are guilty of murder in the first degree irrespective of which one of the participants fired the fatal shot, and it is not necessary to prove malice in such a crime." and "If a defendant enters into a conspiracy or common design with another person to commit the crime of robbery or attempted robbery is committed or attempted and if in carrying out such crime the victim of the robbery is killed, such killing is murder in the first degree and defendant is guilty thereof even though not present and not actually assenting to the killing of said victim." The evidence presented at the trial clearly indicates that defendant was guilty of the crimes charged, and the instructions given properly state the law. Defendant's eleventh issue is: "Whether or not the accused is entitled to a new trial." Defendant made a motion for a new trial at the close of his trial and again six months later. Both motions were properly denied, but we feel that some comment should be made concerning the second motion for a new trial. *641 David Walters wrote a letter from prison to defendant's counsel in which he stated that he would like to talk "about a few things concerning Corliss' non-involvement in the murder of Don Hammer." Walters was returned to Helena to testify at the hearing on the motion. Walters did admit to lying at the trial, but all that can be concluded from the hearing is that Walters is a liar. He consistently refused to admit who had shot Donald Hammer. We quote portions of his testimony: "Q. You were walking up the mountain with Donald Hammer? A. Yes. "Q. I see. Who else was with you? A. No one. * * * "Q. So when, now, as I get your story, when you left Hammer on the mountain, he was alive? A. Yes sir. "Q. Okay, now, what did you do then? A. I ran back to the car. "Q. You went back to the car? A. Yes sir. * * * "Q. I see. Now, as I gather, according to your testimony, you robbed a man at gun-point, and left him on a mountain; you drive into Lincoln very casually, get some gas, and have a hamburger in the Lincana Cafe? A. Yes sir. * * * "Q. But, as I gather from your testimony, you didn't shoot Don Hammer? A. No sir." The testimony that Walters gave at the hearing only showed that he was capable of lying as he had done in the past, but it certainly did not detract from the overwhelming evidence that points to defendant's guilt. In fact, from our viewpoint it only points the finger more squarely at defendant once again and clearly demonstrates that we stated in the opening portion of this opinion that no one but defendant and Walters will ever know the exact details concerning the tragic events that took place on September 14, 1965. We have carefully reviewed each specification of error and each issue presented for review and find them all to be without merit. The judgment appealed from is affirmed.

July 25, 1967

2d5daa93-447e-4f1d-91d0-3d5dd531202b

DOBITZ v OAKLAND

N/A

13339

Montana

Montana Supreme Court

No. 13339 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 VERN J. DOBITZ, JAMES L. SCHAREN and JOHN FURGASON, Plaintiffs and Appellants, FRED E. OAKLAND and LORETTA OAKLAND, husband and wife, and WESTERN PROPERTIES, a Montana general partnership, Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: Michael J. Whalen argued, Billings, Montana For Respondents : Moulton, Bellingham, Longo and Mather, Billings, Montana B. E. Longo argued, Billings, Montana Hutton, Sheehy and Cromley, Billings, Montana Submitted: January 26, 1977 Decided: MAR 4 f g n Honorable Peter G. Meloy, District Judge, sitting in place of Mr. Justice Frank I. Haswell. This is an appeal from a declaratory judgment granted by the district court, Yellowstone County, in favor of defendants Fred E. Oakland and Loretta Oakland. The facts from which this litigation arises are: Oaklands sold certain real property rental units to the plaintiffs,Vern J. Dobitz, James L. Scharen and John Furgason, on a contract for deed, which contract contained a provision for nonassignment unless Oaklands' consent was given. Plaintiffs, without Oaklands' consent, entered into a contract for deed to sell to defendant Western Properties, Inc. The contract for deed between Oaklands and plaintiffs provided that in the event of default by plaintiffs, Oaklands would give a written notice of default and plaintiffs would have 30 days to cure the default. Notice of default was given on October 7, 1975. The contract further provided that in the event the de- fault was not cured within the 30 day period, that Oaklands could, by written notice, dzclare the entire balance on the contract due. Such notice was given November 12, 1975. Plaintiffs on November 13, 1975 filed this action for declaratory relief and requested an order restraining Oaklands from further action on the notice of acceleration. The district court granted a tem- porary restraining order and order to show cause. Oaklands filed an answer and a motion for a summary judgment. Defend- ant Western Properties, Inc., acknowledged service but has not otherwise pleaded to the complaint. On December 5, 1975 a hearing before the district court was had upon the order to show cause and the motion for summary judgment. The district court entered judgment for Oaklands holding: (1) that plaintiffs had violated the provisions of the contract by entering into the contract with Western Properties, Inc. without first obtaining the consent of the Oaklands; (2) that a proper notice of default was given by Oaklands; (3) that there was a failure to cure within the 30 days allowed by the contract and that further notice accelerating the balance was given; and (4) that the order restraining the Oaklands as to action on accelerating the balance be quashed. (The district court thereafter stayed the execution of the judgment, the effect of which restrained Oaklands from taking any further ac- tion under the default provision of the contract until 10 days after the filing of the remittitur from the Supreme Court.) On appeal plaintiffs raise issues hereinafter discussed: First: Has there been a default by plaintiffs which came within the default provisions of the contract for deed? Plaintiffs contend there was not a "default", as such, but merely a "breach". They admit there was a breach but argue that the remedy is for damages and does not come under the de- fault provisions which provides for notice and an opportunity to cure the default. Plaintiffs argue the default provision applies only to a failure on the part of plaintiffs to perform their affirmative obligations under the contract. The pertinent sections of the contract for deed are: "11. DEFAULT PROVISIONS. Should Buyer fail to make the payment provided herein or to perform any of the other terms on Buyer's part to be performed hereunder * * *." (The balance of the section provides for notice, etc.) "12. REMEDIES NOT EXCLUSIVE. In the event of a breach by Seller or Buyer of a provision hereof or in the event of anyadefault as defined herein, the party aggrieved thereby shall have all the rights and privileges accorded by law or other- wise. No remedy herein conferred upon or reserved to any of the parties herein is exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addi- tion to every other remedy given hereunder or now or hereafter existing at law or in equity." Plaintiffs argue Section 12 makes a distinction between breach and default. The question is presented as to whether the action on the part of plaintiffs in reselling the property and violating the nonassignment clause without consent constitutes a default with- in the meaning of Section 11 of the contract. The district court found the failure to procure the consent constituted a default within the meaning of Section 11. We agree. We note the default provision carries the words, in addition to the failure to make payments, "or to perform any of the other terms on Buyer's part to be performed hereunder * * *." There was an obligation of performance on plaintiffs' part to secure the Oaklands' consent prior to the sale to Western Properties, Inc. Such obligation was not performed and thus such failure of performance constitutes a default within the meaning of Section 11 of the contract. Second: Was the provision of Oakland's contract for deed prohibiting assignment or transfer of interest without Oaklands' prior consent void in contravention of public policy, and in contravention of section 67-405, R.C.M. 1947, as an unlawful restraint upon alienation? Section 67-405, provides: "Conditions restraining alienation, when repugnant to the interest created, are void." The district court found the contract provision against transfer without the Oaklands' consent was not void and was a condition not encompassed within the meaning of section 67-405. We agree. The general rule is stated in 4 Corbin on Contracts, "We have substantial unanimity of authority to the effect that in contract for the future conveyance of land or goods, the vendor can limit or forbid the purchaser's assignment of his right to transfer. The court may hesitate to interpret general words against assignment as being intended as such a prohibition; but such a prohibition, if made, is not invalid. Attention may again be called, however, to the difference between forbidding the assignment of a contract right to a future transfer, and for- bidding a future conveyance of land or goods by the buyer after their transfer to him. The latter may be invalid for various reasons; it is the former that is now being considered." This statement of the law recognizes the difference between a conveyance and a contract to convey. The land contract such as is involved here is an executory contract and the legal title does not pass until the conveyance is actually made. We adopt the general rule. (Compare: Rother-Gallagher v. Montana Power, 164 Mont. 360, 552 P.2d 1226, wherein this Court held that the provisions for nonassignment in a contract be upheld in Montana and cited Winslow v. Dunham, 46 Mont. 71, 125 P. 136; Standard Sewing Machine Co., v. Smith, 51 Mont. 245, 152 P. 38. See also: Lipsker v. Billings Boot Shop, 129 Mont. 420, 288 P.2d 660.) Plaintiffs reason the judgment of the district court holding the new assignment clause to be valid operates to pre- vent plaintiffs from entering into rental agreements. There was, in this case, no default specified in the notice as to the rental agreements and is not an issue here. We note, however, that the default complained of here is that of the granting of an interest which is not a terminable interest, as is the case of a month to month tenancy. Plaintiffs do not concede the so-called assignment clause is not void but contend that should this Court hold that it is not void, then plaintiffs urge this Court to adopt what the Oak- lands characterize as the minority rule. Under the so-called minority rule the clause is not void, but must be of reasonable application. Plaintiffs contend the failure of Oaklands' giving of consent was unreasonable and was solely motivated by a desire to get an increase in their interest rate. The district court made no findings as to the reason- ableness of the withholding of consent, and under the view of this Court such finding is not necessary. (There was conflict in the testimony as to the information given to Oaklands as to the terms of the resale contract and the names of the purchasers. ) The judgment of the sitting in place of stice Frank I. Haswell. Chief Justice h justices

March 4, 1977

3e759e72-34ac-4c0b-b017-34c023ce2382

Williams v. Maley

434 P.2d 398

10957

Montana

Montana Supreme Court

434 P.2d 398 (1967) Helen WILLIAMS, a widow, and Jeanne Williams and Susan Williams, minors, by Helen Williams, their mother and next friend, Plaintiffs and Appellants, v. Marvin MALEY and Rudolph L. Bertolino, d/b/a Bertolino Trucking Co., Defendants and Respondents. No. 10957. Supreme Court of Montana. Submitted October 17, 1967. Decided November 29, 1967. *399 Jones &amp; Jones, Roland V. Colgrove (argued), Miles City, Hughes &amp; Bennett, Michael J. Hughes (argued), Helena, for appellants. Lee Overfelt, Billings, Gene Huntley (argued), Baker, for respondents. CASTLES, Justice. This is an appeal by the plaintiffs, hereinafter referred to as the appellants, from a jury verdict for the defendants and an order denying a motion for a new trial. Appellants are the wife and two minor daughters of Gerald Williams, one of two men killed in the collision which is the subject of this suit. The defendants, hereinafter referred to as the respondents, are Marvin Maley, the driver of one of the trucks involved in the collision, and Rudolph Bertolino d/b/a Bertolino Trucking, who is the owner of the truck and the employer of Maley. The collision in which Williams was killed occurred on January 23, 1964. Williams and another man killed in the accident were employees of the State of Montana. On the morning of the accident they had been assigned the sanding of a stretch of highway north and south of Miles City, Montana. They had finished sanding to the southern limits of their route, and were returning to Miles City sanding bridge approaches, as was the custom if there was any sand left. At about the time of the collision Williams and his partner had stopped momentarily to begin sanding the southerly approach to Log Creek Bridge. Log Creek Bridge is located at the bottom of a gully. The southern edge of the gully or the ridge is approximately 53 feet higher than the bridge and approximately 1,200 feet from the southern end of the bridge. On the day of the accident, respondent Maley had for some time been following a truck driven by Reino Lampinen. Maley crested the ridge above Log Creek when Lampinen's vehicle was approximately half way between the ridge and the bridge. Lampinen testified that he notice the state truck when he crested the ridge. As he got half way down the hill, he realized that the state truck was in the middle of the highway and not moving. Lampinen put on his brakes, but released them when the sanding truck started to move. The state truck then appeared to stop again, leaving its left rear corner in the left hand travel lane. By this time Lampinen could not stop, so he swung around and passed the state vehicle. Maley testified that he was never less than 550 feet from the lead vehicle during the descent into the gully. He testified that he did not see the lead vehicle pull out and pass the state vehicle and that he did not see the state truck until he was approximately 36 feet from it. The evidence as to whether the state vehicle had its amber warning light on at the time of the accident is contradictory. Defendant Maley and the driver of the vehicle he was following testified that it was not. Other witnesses who passed the sanding vehicle near the time of the accident testified that the light was on at those times. Subsequent to the wreck, an investigation of the wrecked truck revealed that the switch which controlled the light was in the "on" position. Testimony as to the visibility conditions was also contradictory. Witnesses for the respondent tended to agree that a light snow was falling and that moving vehicles kicked up some snow. Lampinen and defendant Maley agreed that falling snow greatly hampered visibility, and that visibility was even further reduced by the snow kicked up by moving vehicles. During the course of the trial, plaintiff introduced into evidence a portion of the Safety Manual issued by the Montana Highway Commission. Defendants introduced into evidence portions of the same manual, and the whole of the Manual on Uniform Traffic Control Devices for Streets and Highways. *400 On the basis of this evidence, the judge issued Court's Instruction No. 19 as follows: "The jury is instructed that it is for you to determine from all of the evidence whether the deceased and his co-worker complied with work regulations in protecting the traveling public when they engaged in sanding operations. "You are further instructed that if you find that they failed so to do and that their failure contributed as a proximate cause of this accident, then the heirs in this action cannot recover." Appellants contend that it was error for the court to allow defendants' exhibits into evidence and that it was also error to issue Court's Instruction No. 19 based on this evidence. Appellant contends that it was a matter of law for the court to decide the relevance of these two manuals and that the court should have decided that they had no relevance in determining the standard of care of the deceased and his co-worker. Therefore, they should not have been allowed into evidence and no instruction should have been based upon them. The disputed portion of the Safety Manual is as follows: "Section 9 Protective Devices, Subdivision D. "It is the responsibility of Engineers, Supervisors, and Foremen to see that slow one-way traffic ahead or other warning signs are properly placed to protect our men and the traveling public before work is started on any highway, and to see that they are removed when no longer required. Slow one-way traffic ahead signs shall be used when one lane of the highway is obstructed, but for no other purposes. All warning signs shall have a red flag attached to the upper left hand corner. All mowers shall be equipped with a red flag mounted on a limber pole or another device eight feet above the ground. Excavations in the roadway shall be protected with barricades in addition to the signs, and at night flares shall be placed at the signs and at the barricades." The relevant portions of the Uniform Manual on Traffic Control Devices are as follows: 5A 2 Scope "These principles and standards are aimed at the protection of the public and workmen, the minimizing both of inconvenience to the public and of economic losses, and the maintaining of public good will." 5A 4 Responsibility "The provisions for public protection established herein are for application by (1) State highway department, county and municipal forces performing construction or maintenance operations on roads and streets * * *." 5B 4 Erection of Signs "For maximum mobility on certain types of maintenance operations, a large sign may sometimes be effectively mounted on a vehicle stationed in advance of the work or moving along with it. This may be the working vehicle itself, as in the case shoulder-mowing or paint-striping equipment." 5B 27 Men Working Sign "The MEN WORKING sign shall be used in conjunction with minor maintenance and public utility operations for the protection of men working in or near the roadway." 5B 29 Road Machinery Ahead Sign "The ROAD MACHINERY AHEAD sign shall be used in areas where heavy road equipment, such as a grader, is operating in or closely adjacent to the roadway." 5B 30 Road Work Ahead Sign "The ROAD WORK AHEAD sign is intended for use in advance of maintenance or minor reconstruction operations in the roadway." Both of the manuals involved in this case were adopted pursuant to legislative authorization. R.C.M. 1947, § 32-1606, granted the Highway Commission the power to "formulate necessary rules and regulations for the construction, repair, maintenance *401 and marking of state highways and bridges * * *." In the case of Koppang v. Sevier, 106 Mont. 79, 92, 75 P.2d 790, this court held that this statute gave the Highway Commission the power to make rules for the protection of public and men working on repair, construction or maintenance of highways. The Safety Manual was adopted under this grant of power. R.C.M. 1947, § 32-2133, gave the Highway Commission the power to adopt a manual "for a uniform system of traffic-control devices consistent with the provisions of this act for use upon highways within the state. Such uniform system shall correlate with and so far as possible conform to the system then current as approved by the American association of state highway officials * * *." R.C.M. 1947, § 32-2134 gave the Highway Commission the power to sign the state highways with signs consistent with those provided in whatever uniform manual was adopted. Pursuant to this grant the Manual on Uniform Traffic Control Devices for Streets and Highways, the one involved in the present case, was adopted. In the recently decided case of Faucette v. Christensen, 145 Mont. 28, 34, 400 P.2d 883, a driver was charged with negligence per se for passing within one hundred feet of an intersection, an action prohibited by statute. However the intersection was marked with a broken white line, which under the manual indicates that in such an area passing is permitted. This court asked the question: "* * * Should not the other statutory `rules of the road' and the highway markings formally established by the highway commission under statutory authorization have equal dignity? Should not the statutes, then, be construed together and harmonized in determining questions of negligence. We believe they should." It has long been the position of this court that the violation of a statute enacted for the safety of the public is negligence per se. Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044, 67 A.L.R.2d 1 (1957). In the present case then, if the deceased had violated any of the regulations which imposed a duty upon him, then that violation would constitute negligence per se, and his heirs would be unable to collect. However, it goes without saying that there can be no violation of a statute or a regulation unless there is a duty upon the person charged with the violation to observe the statute. In the present case a reading of the various rules adopted by the Highway Commission reveals that there was no duty upon the deceased to observe them and, hence, there could be no violation of them by him. Section nine of the Safety Manual imposes a duty upon "Engineers, Supervisors and Foremen" only. Since the deceased was officially classed as "truck driver under three ton" this section imposes no duty upon him. The second group of rules which form the basis for Court's Instruction No. 19 are those quoted from the Manual on Uniform Traffic Control Devices. It is clear from a reading of the legislation authorizing the Highway Commission to adopt a uniform manual and authorizing the Commission to sign the highways in accordance with that manual, that the mere adoption of the manual did not give it a status equal to that of a statute. R.C.M. 1947, § 32-2134, authorizes the Highway Commission to sign the highways of the state in conformity with the manual "as it shall deem necessary." The same statute makes it unlawful for anyone else to erect signs upon highways. Thus, until the Highway Commission has acted to direct the erection of a sign, there is no duty placed upon anyone to act in a certain manner just because the Manual on Uniform Hraffic Control Devices would seem to indicate that such a sign should be erected. Without direction by the Highway Commission there is no duty to place a sign. The evidence is abundantly clear that the Highway Commission had issued no directives *402 dealing with the subject of signs on sanding operations. John Van Vynck, division engineer, for the Miles City division was allowed to testify that not only did he not have a copy of the Manual on Uniform Traffic Control Devices in the Miles City office, but that he had not even received any directives based upon the Manual relative to sanding operations, other than that pertaining to lighting sanding vehicles. In the absence of such a directive, there can be no negligence per se based upon a failure to uphold a statute designed for the protection of the public. Therefore, it was error to base an instruction upon the Manual on Uniform Traffic Control Devices as it imposed no duty upon the deceased. In view of the fact that no statutory standard of care was imposed upon the deceased, the standard of care which was imposed upon him is that discussed in the case of Blevins v. Weaver Construction Company, 150 Mont. 432 P.2d 378. In that case this court said that a driver of a vehicle employed in working upon the public highway is required to "keep such lookout for vehicles as an ordinarily careful man similarly situated would keep." Respondents contend that even though the admission into evidence of Section 9 of the Safety Manual and the Uniform Manual on Traffic Control Devices and the instruction based upon them may have constituted error, this error was corrected by failure on the part of the appellants to make proper objection to them and thus give the court a chance to change its decision. We have examined this contention and find it to be without merit. The objections raised to the evidence and the instruction, while perhaps not masterpieces of legal phraseology, certain were sufficient to indicate to the court what the appellants' argument was and to give the court an opportunity to correct itself. Having found that prejudicial error was committed, a new trial should be had. Accordingly the judgment is reversed and the case remanded for new trial. JAMES T. HARRISON, C.J., and HASWELL, ADAIR and JOHN C. HARRISON, JJ., concur.

November 29, 1967

aa441504-4a85-4e2a-95e6-62b545717d9f

STATE v STASSO

N/A

13190

Montana

Montana Supreme Court

No. 13190 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE OF MONTANA, Plaintiff and Appellant, -vs- LASSO STASSO, Defendant and Respondent. Appeal from: Diskrict Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Robert L. Fletcher, County Attorney, Thompson Falls, Montana Clayton Herron argued, Helena, Montana For Respondent : Victor F. Valgenti argued, Missoula, Montana Richard A. Baenen, Washington D.C. Submitted: January 19, 1977 ~ e ~ i d e d .. APW eg 1 9 n Filed : b\PI 21 I $ @ . M r . Justice John Conway Harrison delivered the Opinion of the Court. Defendant Lasso Stasso, a duly enrolled member of the Confederated Salish and Kootenai Indian Tribes, was convicted i n justice court, Thompson Falls, Montana, of a violation of the game laws of Montana. The specific charge was k i l l i n g a deer out of season. This conviction was appealed t o the d i s t r i c t court and was s e t aside and the charges dismissed. The s t a t e appeals. The t r i a l de novo i n the d i s t r i c t court was held January 27, 1975. These facts were stipulated by the parties: 1. Defendant, Lasso Stasso, is a duly enrolled member of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana. The Confederated Tribes were parties t o the Treaty of Hell Gate of July 16, 1855, 12 Stat. 975, with the United States. 2. Defendant shot and killed a deer on August 24, 1972, i n the general vicinity of White Pine Creek, Sanders County, Montana. A t the time of the incident the season was closed f o r hunting deer, pursuant t o Montana law. 3 . That the location i s outside the boundaries of the Flathead ~ e s e r v a t i o n , as established by Article I1 of the Treaty -- of Hell Gate of July 16, 1855, but within National Forest Service lands which have never been patented t o any private person. The s t a t e relied solely on the stipulated facts. Defendant, however, presented the testimony of an expert witness and exhibits clearly outlining the aboriginal hunting t e r r i t o r y of the Confederated Salish and Kootenai Tribes. The evidence indicated the deer was taken within t h i s aboriginal hunting territory, but without the of confines/the present day Flathead Reservation. The d i s t r i c t court found the lands upon which the offense occurred were open and unclaimed lands under the Treaty of Hell Gate and provisions of the treaty a r e superior t o any reserved power of the s t a t e and therefore exempt from s t a t e regulation. The complaint was dismissed for failure t o s t a t e the commission of a public offense. The issue to be decided i s whether present day members of the Confederated Salish and Kootenai Tribes have a right t o hunt free from the regulation of Montana game laws, on "open and unclaimed lands" by virtue of Article I1 of the Treaty of Hell Gate. In determining t h i s issue, w e f i r s t consider whether Forest Service land may be included within the meaning of "open and unclaimed lands" . The concept of aboriginal t i t l e t o lands historically occupied by American Indians is recognized i n Sac and Fox Tribe v. United States, 383 F.2d 991,997 (Ot.C1.1967), cert.den. 389 U.S. 900, 88 S.Ct.220,t19 L ed 2d 217, where the court stated: "* * * the right of sovereignty over discovered land was always subject t o the right of use and occupancy and enjoyment of the land by Indians living on the land. This right of use and occupancy by Indians came t o be known a s 'Indian t i t l e . ' l . I t i s sometimes called 'original t i t l e ' o r 'aboriginal title. 1 1 1 Hunting and fishing rights are part and parcel with aborginal t i t l e . State v. Coffee, (Idaho 1976), 556 P.2d 1185. Aboriginal t i t l e is founded on the concept that Indian occupancy and use of the land prehistorically predated the present sovereign. This being so, we examine the t e r m s by which the Indians ceded t h e i r land t o the United States t o determine t o what extent Indian hunting rights on that land remain unextinguished. The p a r t i e s stipulated the Conferedated Salish and Kootenai Tribes, of which the defendant i s a member, were p a r t i e s t o the Treaty of Hell Gate. This t r e a t y was executed on July 16, 1855 a t Hell Gate i n the B i t t e r Root Valley. Isaac I. Stevens, governor and superintendent of Indian a f f a i r s f o r the Territory of Washing- ton represented the United States. Representative c h i e f s , headmen, and delegates of the Flathead, Kootenay, and Upper Pend d t O r e i l l e s Indian Tribes signed f o r them. Through the provisions of A r t i c l e I of t h i s t r e a t y , the Lndians ceded a l l t h e i r lands t o the United States: "ARTICLE I. The said confederated t r i b e s of Indians hereby cede, relinquish, and convey t o the United S t a t e s a l l t h e i r r i g h t , t i t l e , and i n t e r e s t i n and t o the country occupied o r claimed by them, bounded and described a s follows * * *." The t r e a t y further provided t h a t i n exchange f o r the cession of t h e i r lands the Indians were t o receive a reservation and monetary compensation. I n addition A r t i c l e I11 of t h e Treaty provided t h e Indians were t o receive: "The exclusive r i g h t of taking f i s h i n a l l the streams running through o r bordering s a i d reserva- t i o n i s further secured t o said Indians; a s a l s o t h e r i g h t of taking f i s h a t a l l usual and accustomed places, i n common with c i t i z e n s of the Territory, and of erecting temporary buildings f o r curing; cogether with the privilege of hunting, gathering roots and b e r r i e s , and pasturing t h e i r horses and c a t t l e upon open and unclaimed land." (Emphasis added). rhFs Court speaking of the Treaty of Hell Gate of July 16, 541, 1855 i n S t a t e v. McClure, 127 Mont. 534,5391 268 P.2d 629, recog- nized t h a t , when they signed the treaty: "* 2k * the Flathead and other p r a i r i e Indian nations' primary i n t e r e s t was t o protect and reserve t h e i r hunting r i g h t s and grounds which provided t h e i r major food and clothing. * * *, "* * * Also assured was the Indians's right to hunt and take game outside the reservation on all open and unclaimed lands. * * *I1 The state argues the Montana Territorial Act of May 26, 1864, 13 Stat. 85, has in some way abrogated or affected the rights reserved to the Tribes by the Treaty of Hell Gate. This is not the case. The language of that Act statesin pertinent part: "That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said territory so long as such rights shall remain unextinghished by treaty between the United States, and such Indians J.' * *." The application of the provisions of the Treaty of Hell Gate to a fact situation such as the instant case is a matter of first impression in this jurisdiction. I t is clear however that the provisions of the treaty must be considered as a reservation by the Indians, rather than a grant by the federal government. Therefore, the Indians, at the time of the treaty, reserved the right to hunt on open and unclaimed lands outside their present day reservation, but within their aboriginal hunting territory. The determination remaining to be made is--to what extent does this reservation of right remain unextinguished? Idaho courts have decided the instant question in that jurisdiction. In view of the striking similarities of the fact pattern of the Idaho cases with the instant case, these cases will be discussed here. State v . Arthur, 74 Idaho 251, 261 P.2d 135, 143, involved an attempt by the state of Idaho to enforce its hunting laws against a member of the Nez Perce Tribe who killed a deer out of season on National Forest land. The incident occurred outside the boundaries of the reservation, but within the area ceded to the federal government by the Tribe. The treaty provisions involved i n Arthur were identical t o Article I11 of the Treaty of Hell Gate. The Supreme Court of Idaho rejected the s t a t e ' s attempt t o enforce the hunting laws upon the Indian-defendant: " W e are not here concerned with the wisdom of the provisions of the treaty under present conditions nor with the advisability of imposing upon the Indians certain regulatory obligations i n the interest of con- serving wild l i f e ; that i s for the Federal Government, the affected t r i b e , and perhaps the State of Idaho t o resolve under appropriate negotiations; our concern here i s only with reference t o protecting the rights of the Indians which they reserved under the Treaty of 1855 t o hunt upon open and unclaimed land without - limitation, restriction or burden. " W e hold that the rights reserved by the Nez Perce Indians i n 1855, which have never passed from them t o hunt upon open and unclaimed land still e x i s t un- impaired and that they are entitled t o hunt a t any time of the year i n any of the lands ceded t o the federal government though such lands a r e outside the boundary of t h e i r reservation, * *" State v. Tinno, 94 Idaho 759, 497 P.2d 1386, 1391, is i n accord with Arthur. I n Tinno a member of the Shoshone-Bannock Tribes was charged with taking a chinook salmon with a spear i n violat ion of Idaho fishing regulations. The Idaho Supreme Court found the Tribes' treaty gave the right t o hunt and f i s h on un- occupied lands of the United States even though fishing was not specifically mentioned i n the language of the treaty: "The signatory Indians had roamed a t w i l l and essentially i n peace among themselves. They did not i n a s t r i c t sense occupy the land they roamed; they harvested game, fish, and berries, camas roots, and other natural foods and moved about with the seasonal changes. I n agreeing t o s e t t l e on a permanent basis they s t i l l were expecting rights t o harvest food on the unsettled lands a s a means of subsistence and a s an integral part of t h e i r way of l i f e . "* * * I n order t o be f a i r we must attempt t o give effect t o the terms of the treaty as those terms were understood by the Indian representatives* * *." State v. Coffee, (Idaho 1976), 556 P.2d 1185, was decided i n November 1976. I n Coffee a member of the Kootenai Tribe was charged with the k i l l i n g of two deer out of season on private property. The Idaho Supreme Court affirmed the d i s t r i c t court con- viction on the grounds the ~ r i b e ' s aboriginal hunting right only applied t o open and unclaimed lands and not t o lands owned by private parties. W e find the Idaho cases interpreting Indian t r e a t i e s con- taining language dealing with Indian hunting rights common t o the Treaty of Hell Gate persuasive i n the instant case. Article 1 1 1 of the Treaty of Hell Gate reserves for present day members of the tribes signing that document the right t o hunt game animals free from s t a t e regulation on lands ceded by the tribes t o the , federal government. However, it is clear t h i s right is limited t o land which i s open and unclaimed a t the time of the incident, Land owned o r occupied by private parties i s i n no way open and un- claimed within the contemplation of t h i s treaty. Prima facie, a l l persons within t h i s s t a t e are subject t o i t s criminal laws and come within the jurisdiction of its courts. I f an exception exists it must be shown by the defendant. State / c3& v. Spotted Hawk, 22 Mont. 33, 55 P. 4 3 3 % State v. Buckaroo Jack, 30 Nev. 325, 96 P. 497. Therefore i n the instant case defendant had the burden of proving the alleged offense was committed a t a location which deprived the s t a t e of jurisdiction t o prosecute. I n State v. Arthur, 74 Idaho 251, 261 P.2d 135,141, the term "open and unclaimed lands" was interpreted as: "* * *lands a s were ,not settled and occupied by the whites under possessory rights o r patent or otherwise appropriated t o private ownership and was not intended t o nor did it exclude lands t i t l e t o which rested i n the federal government * * *." W e find t h i s definition persuasive i n light of the fact t h a t the treaty interpreted i n Arthur was identical t o the Treaty of Hell Gate. W e find the National Forest lands involved herein are open and unclaimed lands. State v. Arthur, supra; Confederated Tribes of Umatilla Indian Res. v. Maison, 262 F.Supp. 871 (D.Ore.1966), affirmed i n Holcomb v. Confederated Tribes of Umatilla Indian Res., 382 F. 2d 1013 (9th C i r . 1967). The judgment of the d i s t r i c t court i s affirmed. F /-- \ - --- h~~ c_ -p-rl . , W d Justice / W e Concur: Chief Justice

April 20, 1977

2fa92ca4-3284-4608-a0c9-bd604b838b9f

STATE EX REL LEAVITT v DISTRICT CO

N/A

13592

Montana

Montana Supreme Court

No. 1 3 5 9 2 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 7 STATE OF MONTANA, on t h e r e l a t i o n of GERALD N . LEAVITT, and ELEANORA E . LEAVITT , R e l a t o r s , THE D I S T R I C T COURT OF THE THIRTEENTH J U D I C I A L D I S T R I C T OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF YELLOWSTONE, and THE HON. NAT ALLEN, Judge thereof, R e s p o n d e n t s . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For R e l a t o r s : Poore, M c K e n z i e , R o t h , R o b i s c h o n & R o b i n s o n , B u t t e , M o n t a n a A l l e n M c K e n z i e argued, B u t t e , M o n t a n a For R e s p o n d e n t s : C r o w l e y , H a u g h e y , H a n s o n , G a l l a g h e r and T o o l e , B i l l i n g s , M o n t a n a Stephen Foster argued and R o b e r t E d d L e e argued, B i l l i n g s , M o n t a n a =-., F i l e d : F ? ? E ? ? ?.gn S u b m i t t e d : January 25, 1 9 7 7 Mr. Justice Frank I . Haswell delivered the Opinion of the Court. Relators Gerald N . Leavitt and Eleanora E. Leavitt seek a writ of supervisory control from this Court: (1) To require the presiding judge in civil cause No. 59760 in the district court of Yellowstone County to surrender jurisdiction, and (2) to annul all orders made by the presiding judge in that case on November 15, 1976. The civil case in the district court to which this application is directed is complex, voluminous, and long stand- ing. Plaintiffs in the district court are John Slovak, Mary K. Slovak, Paul Slovak, Mary J. Slovak, Andrew Slovak, and Ann E. Slovak. Defendants are the relators here, Gerald N. Leavitt and Eleanora E. Leavitt, husband and wife; Kentucky Fried Chicken of Montana, a corporation; Montana Franchising, Inc., a corpor- ation; Fred C. Haas, Jr.; and Raymond C. Whitaker. The action in district court essentially involves an alleged breach of contract and fraud arising out of the sale of the Kentucky Fried Chicken franchise for Montana by the Slovaks to Kentucky Fried Chicken of Montana, a corporation (KFCM). The case commenced with the filing of the original com- plaint by the Slovaks on April 19, 1972. Thereafter for more than four years there ensued various pleadings, motions, nego- tiations, pretrial discovery, disqualification of judges, an appeal to this Court on the question of venue, removal and re- mand to and from the federal court, and miscellaneous matters unnecessary to detail in this opinion. On June 3, 1976, the district court set the case for trial on September 22. An informal conference between counsel and the presiding judge was held on August 27 at which time the following events transpired: (1) Slovaks' attorney gave notice of h i s i n t e n t i o n t o f i l e an amended complaint, ( 2 ) counsel f o r Gerald L e a v i t t , K F C M and Montana Franchising, Inc., a corpor- a t i o n ( M F I ) indicated he d i d not intend t o d i s q u a l i f y t h e presiding judge, and (3) r u l i n g s w e r e made on various m a t t e r s p e r t a i n i n g t o p r e t r i a l discovery. O n September 8 t h e d i s t r i c t c o u r t entered an order: (1) Vacating t h e t r i a l s e t t i n g of September 22 and r e s e t t i n g t r i a l f o r November 3 , and (2) s e t t i n g a p r e t r i a l conference f o r October 22. O n September 29 t h e Slovaks served a copy of t h e i r amended complaint on t h e a t t o r n e y of record f o r Gerald L e a v i t t , K F C M , and MFI. O n October 5 t h e amended complaint w a s personally served on both L e a v i t t s i n Las Vegas, Nevada by a deputy s h e r i f f . The p r i n c i p a l d i f f e r e n c e between t h e o r i g i n a l complaint and t h e amended complaint was: (1) The amended complaint added Eleanora E. L e a v i t t , wife of Gerald N. L e a v i t t , a s a p a r t y , and ( 2 ) t h e amended com- p l a i n t plead damages more s p e c i f i c a l l y and with p a r t i c u l a r i t y . The b a s i c theory of t h e case remained unchanged. O n October 19 t h e L e a v i t t s f i l e d a removal p e t i t i o n with t h e United S t a t e s D i s t r i c t Court i n B i l l i n g s , Montana, seeking removal of t h e a c t i o n t o f e d e r a l c o u r t on t h e ground of d i v e r s i t y of c i t i z e n s h i p . O n November 1, United S t a t e s D i s t r i c t Judge James F. B a t t i n remanded t h e case back t o t h e s t a t e d i s t r i c t c o u r t and subsequently assessed a t t o r n e y s ' f e e s a g a i n s t t h e L e a v i t t s f o r wrongful removal. O n t h e same d a t e , November 1, t h e presiding judge i n t h e Yellowstone County d i s t r i c t c o u r t entered an order: (1) Denying t h e pending motion t o dismiss previously f i l e d by t h e L e a v i t t s , ( 2 ) d i r e c t e d t h e defendants t o answer p l a i n t i f f s ' amended com- p l a i n t by 9:00 a.m. on November 3 , and (3) d i r e c t e d t h e t r i a l t o commence a t 10:OO a.m. on November 3 a s previously ordered. Accord- ing t o counsel f o r L e a v i t t s , n o t i c e of e n t r y of t h i s order was communicated to them by telephone at about 4:50 p.m. on November 1. The following day, November 2, was a legal holiday. On November 3 the following occurred, not necessarily in this order: (1) The Leavitts filed an affidavit of disquali- fication against the presiding judge, (2) the presiding judge struck the affidavit of disqualification because it was filed less than 15 days prior to trial, (3) the clerk entered the de- fault of KFCM and MFI for failure to answer or otherwise plead to the amended complaint, as ordered by the court, and (4) the Leavitts filed an application for supervisory control with this Court seeking to have the order of the district court of Novem- ber 3 vacated. We heard the Leavitts' application, stayed proceedings in the district court, and granted Leavitts five days in which to apply to the district court for the relief sought. On November 5 the Slovaks filed a motion for partial summary judgment against both Leavitts and prayed that any judg- ment against KFCM and MFI be likewise entered against Leavitts. On November 8 Leavitts filed: (1) A second affidavit of disqualification against the presiding judge, and (2) a separate motion to vacate the default against KFCM and MFI and to dismiss the amended complaint against KFCM and MFI for insufficiency of service of process and failure to state a claim. A hearing was held on these pending matters on November 15. Thereafter the district court entered its order on the same date which, insofar as is pertinent to this proceeding, provided: (1) The motion to set aside all orders of November 3 by the district court was denied, (2) the motion to set aside the dis- trict court's orders striking the affidavit of disqualification was denied, and (3) Slovaks' motion for partial summary judgment was granted. Additionally the recess in the trial was extended, the Leavitts were ordered to answer the amended complaint by November 19, and a conference between court and counsel was set for November 19. Thereupon Leavitts filed the instant application for a writ of supervisory control with this Court to test the validity of the district court's orders of November 15. An adversary hearing was held and the matter submitted for our decision. Three issues are presented for decision: (1) Is supervisory control a proper remedy? (2) Should the presiding judge be required to relinquish jurisdiction? (3) Should the district court's orders of November 15 be annulled? We hold that supervisory control is a proper and avail- able remedy to determine the relief sought by Leavitts. We have previously held that supervisory control is a proper remedy to review an order striking two defenses and granting plaintiff summary judgment on the issue of liability because the hardship on relator in defending the remaining issue of damages rendered the remedy by appeal wholly inadequate. State ex rel. Great Falls National Bank v. District Court, 154 Mont. 336, 463 P.2d 326, and cases cited therein. We have also held that supervisory control was a proper remedy to cut through a procedural morass and enable prompt litigation of the substantive rights of the parties on the merits. State ex rel. Amsterdam Lbr. Co. v. Dist. Ct., 163 Mont. 182, 516 P.2d 378. Here we have an order de- faulting two defendants, an order granting partial summary judg- ment against some of the defendants, and a procedural tangle involving the attempted disqualification of the presiding judge, removal and remand of the case to and from federal court, and a number of orders whose validity is in controversy. Under these circumstances, we do not consider the remedy of appeal following trial as to some of the defendants an adequate remedy. Hence we accept jurisdiction of relators' application for a writ of supervisory control. The attempted disqualification of the presiding judge requires no extended discussion. The presiding judge has been in jurisdiction since January 24, 1973. As late as August 27, 1976, counsel indicated he did not intend to disqualify the presiding judge. The first affidavit of disqualification against the presiding judge was filed on November 3, 1976, the day of trial. We have previously condemned such practice. State ex rel. Kidder v. Dist. Ct., 155 Mont. 442, 472 P.2d 1008. Here the Leavitts argue that the affidavit of disqualification was timely filed because it was filed immediately after receiving the district court's order of November 1, citing Wheeler v. Moe, 163 Mont. 154, 515 P.2d 679, in support. Leavitts also contend that the presiding judge arranged the calendar to circumvent the disqualification statute. The controlling statute, section 93-901, R.C.M. 1947, as amended, provides in pertinent part: " * * * If there be more than one judge * * * in any district in which said affidavit is made and filed, upon the first disqualification * * * another judge * * * residing in the dis- trict * * * must be called in to preside * * *; upon the second or any subsequent disqualifica- tion, a judge * * * of another district of the state must be called in to preside * * * when another judge * * * has assumed jurisdiction * * * the clerk of the court * * * shall at once notify the parties or their attorneys of record * * * of the name of the judge * * * called in * * *. Such second or subsequent affidavit of disqual- ification shall be filed with the clerk of the court * * * within three days after the party or his attorney * * * filing such affidavit, has received notice as to the judge * * * assuming jurisdiction * * *." (Emphasis added.) Here all parties except Eleanora Leavitt had lost their right to disqualify the presiding judge in January, 1973. At the time Eleanora Leavitt was made a party by the filing and service of the amended complaint, the trial date of November 3 had been set. She had the right to file a disqualifying affidavit up to 15 days prior to trial. That time expired on October 19, the fifteenth day prior to trial. The attempted disqualification on November 3, the day of trial, came much too late and was properly stricken by the presiding judge. The disqualification statute was not intended as an instrument to secure delays or postponements of trial. State ex rel. Jacobs v. Dist. Ct., 48 Mont. 410, 138 P. 1091. The same is true of the second affidavit of disqualifi- cation filed on November 8. The right of disqualification once lost cannot be revived by a continuation of the trial for the benefit of relators as occurred here. The final issue concerns the default of KFCM and MFI and the partial summary against both Leavitts. Counsel for Leavitts argues that he never agreed to accept service of the amended complaint on behalf of KFCM and MFI, that the two corporations were never served, and that entry of default against them deprived them and Leavitts of their property without due process of law. Counsel for Slovaks contend that the amended complaint was properly served upon the two corporations by service on their counsel, that no responsive pleading had been filed by the two corporations within the time allowed by law, and the defaults against the two corporations were properly entered for failure to file a respon- sive pleading as well as failure to appear for trial. We find that service of the amended complaint was properly made on KFCM and MFI. The amended complaint was served on counsel of record for the two corporations. Whether counsel agreed to accept service on their behalf is immaterial. Service of the amended complaint is required to be made by service on the attorney in this case pursuant to Rule 5(b), M.R.Civ.P., which provides in pertinent part: "Whenever under t h e s e r u l e s s e r v i c e i s required o r permitted t o be made upon a p a r t y represented by an a t t o r n e y t h e s e r v i c e s h a l l be made upon t h e a t t o r n e y unless s e r v i c e upon t h e p a r t y himself i s ordered by t h e c o u r t . * * *" The c o u r t d i d not order s e r v i c e upon t h e p a r t i e s themselves, K F C M and MFI, i n t h i s case. Hence, they were t e c h n i c a l l y i n d e f a u l t f o r f a i l u r e t o f i l e a responsive pleading when t h e d i s - t r i c t c o u r t entered t h e i r d e f a u l t on November 3. Rule 1 5 ( a ) , M.R.Civ.P. However, t h e r a p i d i t y of events on November 1 and Novem- ber 3 j u s t i f y vacating t h e d e f a u l t s i n our opinion. Although t h e t i m e f o r f i l i n g a responsive pleading had expired before removal of t h e c a s e t o f e d e r a l c o u r t , no d e f a u l t a g a i n s t t h e two corporations had been entered. None could be entered between October 19 and November 1 when t h e case was remanded t o t h e d i s - t r i c t c o u r t of Yellowstone County. Counsel f o r t h e two corpora- t i o n s received no n o t i c e of t h e remand u n t i l about 4:50 p.m. on November 1 when t h e c l e r k of t h e state d i s t r i c t c o u r t c a l l e d him on t h e telephone and advised him of t h e order of t h e c o u r t which d i r e c t e d , among o t h e r t h i n g s , t h a t t h e defendants answer t h e amended complaint by 9:00 a.m. on November 3. Following t h e events of November 3, d e f a u l t a g a i n s t t h e two corporations was entered on November 5, p r i o r t o t h e t i m e we granted t h e L e a v i t t s i n which t o seek r e l i e f i n t h e d i s t r i c t c o u r t from t h e o r d e r s of November 3. I n vacating t h e d e f a u l t s of KFCM and MFI, w e have con- sidered t h e f a c t t h a t L e a v i t t s a r e t h e a l t e r ego of t h e two cor- porations and a r e personally l i a b l e f o r any judgments a g a i n s t t h e two corporations under t h e terms of an assignment dated March 31, 1972. Thus any d e f a u l t a g a i n s t t h e two corporations has t h e l e g a l e f f e c t of a d e f a u l t a g a i n s t L e a v i t t s on a t l e a s t p a r t of t h e Slovaks' claims. W e consider t h e e n t r y of t h e p a r t i a l summary judgment on t h e same basis. It is based on t h e personal l i a b i l i t y of L e a v i t t s under t h e assignment of March 31, 1972, and t h e disso- l u t i o n of K F C M . It is based on t h e d e f a u l t of KFCM. A s w e have vacated t h e d e f a u l t of t h e two corporations, t h e p a r t i a l summary judgment a g a i n s t t h e L e a v i t t s based upon t h e d e r i v a t i v e l i a b i l i t y of the two corporations must be vacated. W e have considered t h e other arguments of t h e p a r t i e s and s i n c e w e f i n d they would not alter our decision here, we find it unnecessary t o discuss them point by point i n t h i s opinion. For t h e reasons set f o r t h above, we hold t h a t t h e pre- siding judge r e t a i n s j u r i s d i c t i o n of t h i s case; we vacate t h e d e f a u l t taken a g a i n s t K F C M and MFI and g r a n t them and L e a v i t t s 10 days i n which t o f i l e a responsive pleading t o t h e amended complaint; w e vacate t h e p a r t i a l summary judgment heretofore entered without prejudice t o renewal of t h e motion t h e r e f o r ; and w e remand t h e case t o t h e d i s t r i c t c o u r t of Yellowstone County f o r f u r t h e r proceedings not i n c o n s i s t e n t with t h i s opinion. Let r e m i t t i t u r i s s u e forthwith. .* J u s t i c e W e con ur: 4 /

February 17, 1977

3c87667b-93e9-4d44-bb73-cd7912456c38

STATE v NELSON

N/A

13133

Montana

Montana Supreme Court

No. 13133 IN THE SUPREME COURT OF THE STATE OF MONTANA THE STATE OF MONTANA, Plaintiff and Respondent, DANNY NELSON and ELMER CRATON NELSON, Defendant and Appellant. Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Bradley Parrish argued, Lewistown, Montana For Respondent : Hon. Michael Greely, Attorney General, Helena, Montana Allen B. Chronister, Assistant Attorney General, argued, Helena, Montana William Spoja, County Attorney, Lewistown, Montana Robert L. Knopp, Deputy County Attorney, argued, Lewistown, Montana Submitted: January 21, 1977 Decided: R B 2 4 1 9 n lerk M r . J u s t i c e Frank I. Haswell delivered the Opinion of the Court. Defendants were convicted by jury verdict i n the d i s t r i c t court, Fergus County, of two counts of offering t o s e l l dangerous drugs i n v i o l a t i o n of section 54-132, R.C.M. 1947. Both defendants appeal. The material f a c t s a r e disputed. The s t a t e ' s version i s t h a t defendants Danny Nelson and Elmer Nelson, brothers, offered t o s e l l marijuana on two separate occasions t o James Bridgeford, an undercover narcotics agent f o r t h e Fergus County s h e r i f f ' s de- partment. The f i r s t transaction was on the night of October 27, 1974, a t t h e Husky truck stop on the Lewistown by-pass. Defendants drove up t o the truck stop i n t h e i r c a r , bought a couple of d o l l a r s worth of gas from Bridgeford who was working there, and asked him i f he wanted t o buy a "lid". Defendants l e f t , returned l a t e r , I I arrangements" were made, and defendants waited i n Bridgeford's c a r while he was servicing t h e i r car. Thereafter Bridgeford went over t o h i s c a r where defendants were waiting and they handed him "a l i d of grass" i n a p l a s t i c baggy and he paid them $20. About f i v e minutes a f t e r defendants l e f t , Bridgeford called Randall Cordle, a narcotics agent and deputy s h e r i f f of Fergus County, who came t o the truck stop where Bridgeford turned t h e p l a s t i c baggy over t o him. The second transaction, according t o the s t a t e , occurred on the night of October 30, 1974. Bridgeford went t o a private residence on Pine S t r e e t i n Lewistown where defendants were living. After talking about marijuana, an arrangement was made f o r Bridgeford t o buy another "lid" from them. Defendant Elmer Nelson went over t o a p l a s t i c pumpkin on a shelf i n another room, extracted a "lid", and gave it t o defendant Danny Nelson a s they were going t o t h e car f o r a drive up Spring Creek. While driving around defendants and Bridgeford passed around a "joint" t h a t defendant Elmer Nelson had, which Bridgeford simulated smoking. During the drive, defendant Danny Nelson put t h e "baggy" on the seat toward Bridgeford and Bridgeford handed him $20. Thereafter Bridgeford contacted Deputy Randall Cordle and turned the baggy over t o him. Defendants' version d i f f e r s i n a l l material p a r t i c u l a r s . According t o defendants, the alleged events forming the b a s i s of both charges a r e complete fabrications. They admit going t o the truck stop on t h e night of October 27, 1974 accompanied by f i v e other persons and g e t t i n g some gas, but deny returning there l a t e r . They categorically deny having any marijuana, s e l l i n g o r offering t o s e l l any marijuana t o Bridgeford, o r receiving any money from him. Concerning events of October 30, 1974, defendants admit going f o r a drive up Spring Creek with Bridgeford i n h i s c a r accompanied by two others and smoking a "joint" of marijuana which they claim Bridgeford himself had. Defendants deny they themselves had any marijuana o r sold o r offered t o s e l l any t o Bridgeford. They deny the incident involving the p l a s t i c pumpkin i n the house on Pine S t r e e t . The only witness i n the s t a t e ' s case-in-chief was Bridgeford. The only exhibit offered by the s t a t e was a p l a s t i c bag of a green substance marked "Evidence description, one baggy of green substance Srl-ieved t o be marijuana bought from Danny and Elmer Nelson, 10-27- 74." After denying i t s admission i n evidence f o r lack of foundation, the d i s t r i c t court admitted it for demonstrative purposes a s shown by the following colloquy: "Q. M r . Bridgeford, did you - you obtained the substance from Danny Nelson, correct? A. Yes. "Q. And did you subsequently t r a n s f e r t h a t t o M r . Cordle? A. Yes, I did. "Q. And t h i s appears t o be basically t h e same item, i s t h a t correct? A. Yes, it does. "MR. KNOPP: Your Honor, the S t a t e would request t h a t the exhibit be entered f o r purposes of demon- s t r a t i o n , I n the p a r t i c u l a r charge, it i s not necessary t o prove t h a t anything of t h a t nature was conveyed, only t h a t t h e r e was an o f f e r t o convey t h i s p a r t i c u l a r item. "THE COURT: Inasmuch a s it i s similar and so on, it could be admitted f o r t h a t purpose. "MR. PARRISH: I w i l l object, your Honor, because the witness i s not sure t h a t i s the same one. He s a i d it could be. "THE COURT: He's not entering it a s the same one. He's entering it a s demonstrative. It was something l i k e t h i s , and t h a t ' s the b a s i s on which I admit this." The two defendants were the only witnesses i n t h e i r case-in- chief. I n r e b u t t a l , the s t a t e called two witnesses, Jack Songer, the s h e r i f f of Fergus County, and William A. Spoja, Jr., the Fergus County attorney. Sheriff Songer read a written report t o the s h e r i f f ' s o f f i c e made by deputy Randall Cordle. This report reads: "A. This i s dated October 27th, 1974, and the offense i s s a l e of dangerous drugs. O n t h e above date, I, Randy Cordle, received a phone c a l l from a confidential in- formant s t a t i n g t h a t approximately a t 2:15 A.M., confi- d e n t i a l informant had purchased a quantity of marijuana from Danny and Elmer Nelson. I went t o t a l k with con- f i d e n t i a l informant and he t o l d m e the following: Confi- d e n t i a l informant s t a t e d t h a t Nelsons and Steven Gavin came t o h i s place of employment t o g e t some gasoline. While confidential informant was f i l l i n g t h e Nelson vehicle, Elmer said t o confidential informant, do you want a l i d . Con- f i d e n t i a l informant said yeah, possibly, how much i s it going t o cost me. Danny said $20.00 because we had t o go out of town t o get it, and we could only get s i x l i d s . Confidential informant said when can I get it. Danny said we don't have it now, but we can get it tonight. Confidential informant then s t a t e d t o m e t h a t t h e suspects l e f t f o r approximately f i f t e e n t o twenty minutes and then returned. After returning, Danny t o l d confidential informant we a r e going t o look i n your c a r , come over when you a r e done f i l l i n g t h a t car. After confidential informant finished, he did i n f a c t walk over t o h i s vehicle a t which time Danny, now seated i n t h e c a r , gave confidential informant a l i d , and confidential informant i n turn gave Danny $20.00 which Danny had e a r l i e r s t a t e d t h a t was the amount he wanted f o r t h e l i d . After con- cluding with confidential informant, I brought t h e said marijuana t o the Fergus County S h e r i f f ' s Office, and locked it i n the vault. Signed R. Cordle, Deputy S h e r i f f , Fergus County . I 1 The s h e r i f f t e s t i f i e d it was a report given t o him a s a routine matter i n the normal course of s h e r i f f ' s o f f i c e procedures. Sheriff Songer i d e n t i f i e d the "confidential informant" referred t o therein a s J i m Bridgeford. The s h e r i f f a l s o summarized the contents of a second w r i t t e n report submitted t o him by deputy Randall Cordle i n the routine procedures of h i s o f f i c e i n the normal course of business covering the events of October 30, 1974. This report was unsigned. The s h e r i f f ' s testimonial summary indicated t h a t a t 1:40 a.m. the confidential informant bought marijuana from Danny Nelson i n t h e i r car i n the v i c i n i t y of the truck route i n Lewisto~m. The report a l s o indicated t h a t while i n defendant Elmer Nelson's house he took out a p l a s t i c pumpkin from a shelf and reached i n and removed a handful of packaged l i d s containing marijuana and handed them t o defendant Danny Nelson. Sheriff Songer a l s o t e s t i f i e d t h a t J i m Bridgeford's workmanship with the s h e r i f f ' s o f f i c e had been "reliable, confidential, t o where he was t r u s t e d by t h i s o f f i c e t o use a s a confidential informant" and Bridgeford had been deputized and issued a gun permit. The s h e r i f f ' s testimony concerning t h e contents of t h e two written reports was objected t o by defendants' counsel on t h e grounds it was hearsay, incorrect r e b u t t a l , and lacked proper foundation. The objections were overruled. County attorney Spoja t e s t i f i e d without objection t h a t "the feeling and information t h a t I had indicated t o m e M r . Bridge- ford was completely r e l i a b l e . I have no reason whatsoever t o doubt him." The county attorney a l s o t e s t i f i e d t h a t he was aware " t h a t M r . Bridgeford was d i r e c t l y involved with the Nelsons and i n f a c t t h a t there were funds provided f o r t h a t specific purpose." O n January 17, 1975, defendants Danny and Elmer Nelson were charged by Information i n the d i s t r i c t court, Fergus County, with two counts of s e l l i n g dangerous drugs t o Bridgeford on October 27 and 30, 1974, respectively. O n May 23, 1975, the deputy county attorney moved f o r leave t o f i l e an amended Information charging t h e defendants with "offering t o sell" dangerous drugs on the same dates. Leave was granted and the amended Information was f i l e d on t h e same date. Following pleas of not g u i l t y t o each charge by each defendant, a jury t r i a l was held on May 29, 1975. The jury verdict found both defendants g u i l t y a s charged. Judgment was entered. Defendants appeal from the judgment of conviction. Defendants r a i s e three issues on appeal which we summarize i n t h i s manner: 1) Did the d i s t r i c t court commit reversible e r r o r i n admitting the s h e r i f f ' s testimony concerning t h e contents of t h e written reports of deputy Cordle? 2) Did t h e d i s t r i c t court commit reversible e r r o r i n permitting improper r e b u t t a l testimony by the s h e r i f f ? 3) Must the s t a t e prove beyond a reasonable doubt t h a t the substance offered f o r s a l e was i n f a c t a dangerous drug? W e need go no further than the f i r s t issue t o determine t h a t the judgment must be vacated and a new t r i a l granted. However, before we discuss the f i r s t issue, we wish t o make it c l e a r there were other errors, e.g., admission of the "baggier' in evidence, and failure to have the contents of the baggie analyzed by the state criminal identification laboratory so that identification could be established at the trial. These errors must not be repeated on retrial. The first issue is whether the sheriff's testimony concerning the contents of the written reports of Deputy Cordle is reversible error. The state contends the testimony was admissible as an exception to the hearsay rule under section 93-901-1, R.C.M. 1947. Alternatively, the state argues the authenticity of the reports was established and they are admissible under the reasoning of State v. Cooper, 161 Mont. 85, 504 P.2d 978. In any event, the state contends, the error is harmless because no prejudice was shown. Defendants argue the testimony was inadmissible hearsay and prejudice clearly resulted. The contents of the report are clearly hearsay. They are unsworn statements made out of court with no opportunity afforded to confront the writer and question him as to their veracity. In fact, certain statements therein are hearsay twice removed. Thus unless the contents of the statement fall.. within one of the exceptions to the hearsay rule, they are inadmissible in evidence. The state contends the contents of the report are admissible under a statutory exception to the hearsay rule, section 93-901-1, R.C.M. 1947. That statute provides: "written reports or findings of fact made by officers of this state, on a matter within the scope of their duty as defined by statute, shall, in so far as relevant, be admitted as evidence of the matter stated therein." Yeretofore this Courl~ held Chdc tlze I.~rltrerl reporc >I the 3tdte chelilist i n the s t a t e criminal investigation laboratory con- cerning the physical and chemical t e s t i n g and i d e n t i f i c a t i o n of a substance a s marijuana was admissible under t h i s s t a t u t e . S t a t e Y. Snider, Ivlont . , 541 P.2d 1204, 32 St.Rep. 1050 (1975). W e have a l s o previously denied admission i n evidence of A n d i t e d , undated and signed accident report of a United S t a t e s ?orest Service engineer i n a personal injury action by a s k i e r dgdinst a s k i r e s o r t . I n t h a t case the i n j u r i e s occurred when a s k i l i f t cable derailed and threw the skier t o the ground. The witness through whom the report was sought t o be admitted was not the author of the report but was present a t the time the in- spection was made, (the subject of the report). W e held the report was inadmissible hearsay under section 93-901-1, R.C.M. 1947. "essl v. Bridger Bowl, 164 Mont. 389, 524 P.2d 1101. Also see: Xichardson v. Farmers Union O i l Co., 131 Mont. 535, 312 P.2d 134, $&here we held an A i r Force o f f i c e r ' s report inadmissible. The federal r u l e seems t o d i f f e r and allows police reports l~utltairling hearsay under 28 U.S .C.A. 5 1732. The r a t i o n a l e seems t o be t h a t the federal s t a t u t e i s designed t o abrogate t h e common law hearsay rule. See: Bridger v. Union Railway Company, 355 ?.3d 382, a s i l l u s t r a t i v e of the federal approach. I n our view under Montana's s t a t u t e , the contents of the zwo reports by deputy Cordle a r e inadmissible hearsay, notwith- s ~ a n d i n g the f a c t the reports were o f f i c i a l reports given the s h e r i f f as a routine matter i n accordance with o f f i c e procedures. It i s a l s o inadmissible under the rationale of Cooper. The reason f o r our holding i s t h a t deputy Cordle himself, had he been called a s a witness a t the t r i a l , could not have t e s t i f i e d t o the contents of the report. .The report is largely statements of defendants to a confidential informer who relayed the statements on to a deputy sheriff. This is patently hearsay and inadmissible through the lips of either the sheriff or deputy Cordle. The confidential informant to whom the statements were made testified to their contents, but the official character of the report does not permit the sheriff or deputy Cordle to report the statements on the witness stand to bolster the credibility of the confidential in- formant . The purpose of Montana's statute is not to render otherwise in- admissible hearsay admissible simply because it is contained in a police report. For the foregoing reasons, we hold the contents of deputy Cordle's report was improperly admitted in evidence, was prejudicial to defendants, and the convictions cannot stand. The judgment of the district court is vacated and the cause remanded to the district court, Fergus County, for a new trial. Justice

February 24, 1977

e77061c0-0f94-4324-8bee-7e4d0f0beec2

LUPPOLD v LEWIS

N/A

13261

Montana

Montana Supreme Court

No. 13261 I N THE SUPREME C O U R T O F T H E STATE O F M O N T A N A WILLIAM LUPPOLD , P l a i n t i f f and Respondent, L E N LEWIS et a l . , Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Fourteenth J u d i c i a l D i s t r i c t , Honorable W. W. Lessley, Judge p r e s i d i n g . Counsel of Record: For Appellants: P a t r i c k F. Hooks appeared, Townsend, Montana Loble, P i c o t t e and Pauly, Helena, Montana Bruce Loble argued and Henry Loble argued, Helena, Montana For Respondent: . John V. P o t t e r , Jr. argued, White Sulphur Springs, Montana Moore and R i c e , Bozeman, Montana Perry J. Moore argued, Bozeman, Montana Submitted: January 18, 1977 Decided : APR 1 3 1917 Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This is an appeal from findings of fact and conclusions of law of the district court, Meagher County, interpreting an 1890 water rights decree, pursuant to section 89-1015, R.C.M. 1947. This cause is entitled with the names of the parties to the original action, whereas the actual parties to this appeal are Gertrude McStravick and Fred Buckingham, as respondents, and Ward Paper Box Company, as appellant. Appellant's and re- spondents' predecessors in interest were parties to the 1890 adjudication, wherein they received the following rights: Party Priority of Right Tota,l Inches McStravick 1 60 Buckingham 20, 21 500 Ward Paper Box Co. 9, 10, 11, 1 . 5 , 18 1,035 24, 26, 28, 29 During the 1973 irrigation season a controversy arose between respondents and appellant as to whether Four Mile Creek was adjudged in the 1890 decree in question. Respondents con- tend that Four Mile Creek was adjudged in the 1890 decree, spec- ifically appellant's water right 29. Appellant, on the other hand, claimed Four Mile Creek was not adjudged in the 1890 decree, but only the North Fork of the Smith River and those tributaries specified in the decree, and the water commissioner appointed to administer the decree had no authority on Four Mile Creek. Consequently, the water commissioner did not administer the waters of Four Mile Creek during the 1973 irrigation season. It is agreed the 1890 decree was an adjudication of the North Fork of the Smith River. However, the decree referred to "waters of the Smith River", "water of the North Fork of Smith River", and "waters of" certain named tributaries of the North Fork of the Smith River. The North Fork of Smith River is that portion of the Smith River which lies entirely within the present boundaries of Meagher County from its headwaters to its confluence with the South Fork of Smith River in Section 21, Township 9 North, Range 6 East, M.P.M., Meagher County. Four Mile Creek is a stream located in Meagher County which flows into the North Fork of Smith River in the spring of the year when the waters are unimpeded and uninterrupted. On April 23, 1974, respondents filed a petition for clarification of water right decree. This was subsequently dismissed, without prejudice, for failure to join the Montana Department of Natural Resources and Conservation as a party and serve notice thereon, as required by section 89-896(4), R.C.M. 1947. On June 25, 1974, respondents filed a petition and com- plaint of dissatisfied water users. The district court, sitting without a jury, found Four Mile Creek was adjudged in the 1890 decree. The water commissioner was instructed to administer and distribute the water of Four Mile Creek in accordance with the 1890 decree during those times of the year that such waters would, if uninterrupted and unimpeded, reach the North Fork of Smith River and contribute to its flow. When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has re- peatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law. Compton v. Alcorn, Mont . , 557 P.2d 292, 33 St. Rep. 1186 (1976); Brady v. State Highway Comm'n, 163 Mont. 416, 517 P.2d 738; Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528; Wash. Water Power Co. v. Morgan Electric Co., 152 Mont. 126, 448 P.2d 683. When reviewing evidence it will be viewed in the light most favor- able to the prevailing party in the district court, and the cred- ibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial. Johnson v. Johnson, Mont . P.2d I - , 34 St.Rep. 101; Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 507 P.2d 523; Strong v. Williams, 154 Mont. 65, 460 P.2d 90; Eliason v. Eliason, 151Mont. 409, 443 P.2d 884. Appellant's fifteen specifications of error fall into three general categories: (1) Procedural issues. (2) Substan- tive issues relating to the jurisdiction of the district court pursuant to section 89-1015, R.C.M. 1947. And, (3) Substantive issues not related to the jurisdictional question. 1. The first procedural issue is whether respondents had standing to pursue an action under section 89-1015. Appel- lant contends that neither respondent had standing, since the water commissioner's 1973 records reported (1) McStravick received all of her decreed water, (2) Buckingham did not show a beneficial need and use for the additional water he was entitled to, and (3) neither respondent sought additional water from upstream users, allegedly receiving excess water. Section 89-1015, R.C.M. 1947, states, in part: "Any person owning or using any of the waters of such stream or ditch or extension of ditch, who - is dissatisfied with the method of distribution of the waters of such stream or ditch by such water commissioner or water commissioners, - and who claims to be entitled to more water than he is receiving, or is entitled to a right prior to that allowed him by such water commissioner or water commissioners, may file his written complaint, duly verified, setting forth the facts of such claim. * * *" (Emphasis supplied.) A careful reading indicates there are two means to achieve standing: First the user is dissatisfied with the method of distribution by the water commissioner and claims to be entitled to more water than he is receiving, or second the user is dis- satisfied with the method of distribution by the water commis- sioner and is entitled to a right prior to that allowed him by such water commissioner. The district court found the first to be controlling in finding the respondents did not receive the amount of water they were entitled to under the 1890 decree during the 1973 irrigating season. There is substantial evidence in the record to support this finding and it will not be disturbed on appeal. Respondent McStravick repeatedly testified she was dis- satisfied with the distribution of water during the 1973 season, that this dissatisfaction was the extreme shortage of water which caused a reduction in the hay crop as compared to previous years. Elmer Hanson, a leaseholder of McStravick, testified water was very low and only intermittently available during 1973; and that this condition was present during the months of May and June, when Four Mile Creek would reach the North Fork of Smith River if uninterrupted and unimpeded. Rick Buckingham testified the water was low in 1973 and he was present when his father con- fronted the water commissioner about this shortage. The district court was presented with conflicting testi- mony. The water commissioner's records, which are the basis for payment of his services, reflected that respondents received their decreed water. Respondents and Elmer Hanson on the other hand disputed these records, as can clearly be noted from Hanson's testimony he believed the records to be incorrect. The weight assigned to testimony is for the district court's determination, and such will not be disturbed on appeal. The next procedural issue is whether the district court failed to direct notice to be given to all necessary parties. Appellant relies on State ex rel. McKnight vs. District Court, 111 Mont. 520, 111 P.2d 292, for the proposition that all users and owners under the prior decree must be given notice. We do not agree. If such were the case, section 89-1015, R.C.M. 1947, would have so stated. Section 89-1015 states, in part: " * * * Thereupon the judge shall fix a time for the hearing of such petition, and shall direct that such notice be given to the parties interested in such hearing as the judge may deem necessary. * * *" This discretion given to the district judge is not absolute and McKnight so held. However, McKnight does not stand for appellant's broad statement of law. McKnight involved a section 89-1015 action where notice was only served upon the water commissioner, and no water users or owners were - served with notice nor made parties to the action. The district court then held that one water user's rights pursuant to one decree were subordinate to a second decree, which was not bind- ing upon that user. This Court held that such a determination of rights was a denial of due process and notice should have been given to the water user. We find no such prejudicial abuse of discretion in the instant case. Notice was given to appellant because it questioned the water commissioner's authority on Four Mile Creek; to the water commissioner; and to the Montana Depart- ment of Natural Resources and Conservation,which was also made party to the action, pursuant to the district court's order of June 24, 1974. Notice was not given to any of the other water users, however they did not question the water commissioner's authority on Four Mile Creek, nor were their rights adversely affected, as in McKnight. The final procedural issue is whether the action pursuant to section 89-1015 was improperly allowed because the water com- missioner did not post a sufficient bond, and his 1973 term had expired prior to the start of this action. We hold the action was proper. The district court is given discretion to fix the sum of the water commissioner's bond. Section 89-1003, R.C.M. 1947. Appellant cites authority which involves public officials who posted - no bond. Here, the water commissioner did post a one dollar bond, as fixed by the district court. Appellant did not object to the sufficiency of the bond at the time of appointment, but does so now when the issue has no relevance to this appeal. Not only is the objection untimely, but we find no abuse of the district court's discretion which would affect the outcome of this appeal. The purpose of sections 89-1001 et seq., R.C.M. 1947, is to provide a uniform, equitable, and economical distribution of adjudicated, stored, and supplemental waters. Section 89- 1001(3), R.C.M. 1947. To achieve a uniform method of distribu- tion, the instructions given by the district court must be bind- ing upon the office of water commissioner, not merely upon the individual holding the office at a particular time. Here, William Smith was the water commissioner in 1973 when the contro- versy arose, and was reappointed in 1974. The controversy over Four Mile Creek arose during the 1973 irrigation season, however it continued into the 1974 irrigating season and still exists at the time of this appeal. For these reasons we find no error in allowing this action to be filed subsequent to the expiration of the water commissioner's 1973 term. 2. It has repeatedly been held by this Court that the pur- pose of an action pursuant to section 89-1015, is not to adjudi- cate water rights previously determined by decree, but only to enforce the rights determined by the prior decree. State ex rel. McKnight, supra. In Quigley v. McIntosh, 110 Mont. 495, 500, 103 P.2d 1067, the court stated: "It then becomes obvious that the decree must be the yardstick by which the commissioner shall proceed, and, of necessity, must likewise consti- tute the yardstick for the consideration of in- structions 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. * * *" Therefore, the primary questions for the district court to consider are: (1) What was adjudged in the former proceeding and decree? (2) Was the water commissioner distributing the water in accordance with what was there adjudged? Brennan v. Jones, 101 Mont. 550, 55 P.2d 697. Furthermore, the district court may refer to the pleadings, judgment roll, and the entire record of the original case when construing a water right decree which is lacking in certain elements or obscure and uncertain in mean- ing. Quigley v. McIntosh, supra. The governing issues of this appeal are: 1) Whether the district court erred in finding the 1890 decree to be obscure and uncertain in meaning? 2) Whether the district court erred in finding Four Mile Creek to be adjudged in the 1890 decree? The district court found that three aspects of the 1890 decree rendered it uncertain in meaning and susceptible of dif- ferent interpretations. First, the respective lands owned by the parties to whom water was decreed were not identified. Sec- ond, the decree referred to both the "Smith River" and the "North Fork of Smith River" without specifying whether they were one and the same or separate streams. Third, the term "waters of the Smith River" was uncertain. We agree. The absence of identifying the respective lands of the water owners by itself is sufficient to support the district court's finding. Quigley v. McIntosh, supra. In addition, the transcript reveals the parties themselves were uncertain as to the meaning of the decree. William Smith, the water commissioner, testified he was the water commissioner from 1960 to the time of this action, excepting two years, and that he had always administered the waters of Four Mile Creek when necessary in the past and no objection was made by appellant's predecessors in interest. Carl Holt, appellant's ranch manager, testified to a conversation about Four Mile Creek with the water commissioner: "Q. Go ahead and tell what he said. A. I told him that I couldn't see where it had ever been decreed and I didn't know whether he had any business up there and I would like to have him clarify it." (Emphasis supplied.) Next, we determine whether there was substantial evi- dence to support the finding that Four Mile Creek was adjudged in the 1890 decree. We find there is substantial evidence to support this finding. George F. Danzer was appellant's predecessor in interest to the 29th water right in the 1890 decree. The 1890 decree, listing George F. Danzer's rights states: "Geo. F. Danzer 50 inches Appropriated October, 1878 "Geo. F. Danzer 125 " I ' April, 1879 "Geo. F. Danzer 275 " I1 September 6, 1879 "Geo. F. Danzer 100 " It June, 1883" (Emphasis supplied. ) Thereafter, George F. Danzer was awarded, under the decree, the 10th right of 50 inches of the "waters of the Smith River", the 11th right of 125 inches of the "waters of the Smith River", the 12th right of 275 inches of the "waters of the Smith River", and the 29th right of 100 inches of the "waters of the Smith River." In his answer to the original action, Danzer stated he irrigated land in Section 25, Township 10 North, Range 7 East from Four Mile Creek, and that James T. Anderson and E. J. Ander- son, predecessors in interest, had diverted 100 inches of water from Four Mile Creek and appropriated the same on or about June 1, 1883, the exact date and amount appropriated which was referred to in the 1890 decree. Additionally, the maps and exhibits in- troduced at trial show that the land previously described could only be irrigated from Four Mile Creek. The district judge viewed this topography himself and determined this to be true. This evidence is more than enough to support the district court's finding that Four Mile Creek was adjudged in the 1890 decree. Therefore, there is no need for this Court to rule upon the reliability of the partial transcript of the 1890 proceedings, wherein George F. Danzer makes reference to Four Mile Creek in his testimony. Appellant next contends the district court exceeded its jurisdiction in finding that Four Mile Creek is a tributary of the North Fork of Smith River, since it cannot determine tribu- tary status nor change a point of diversion in an action pur- suant to section 89-1015. This would be correct if the district court had in fact done so. However, the district court only determined what had been adjudged in the 1890 decree, as evi- denced by finding of fact 8: "That the issue of whether or not Four-Mile Creek was a tributary of the North Fork of Smith River was actually raised in the pleadings of this action and that such issue was actually litigated at the trial thereof and it is res judicata that Four- Mile Creek is a tributary of the North Fork of Smith River and therefore controlled and governed by the 1890 Decree." The evidence supports the finding that George F. Danzer's 29th right was from Four Mile Creek. Therefore, the 1890 decree necessarily adjudged Four Mile Creek to be a tributary of the North Fork of the Smith River. Otherwise, Danzer's right would not be one of 29th priority, subsequent to the previous 28 rights awarded. Appellant's objections are the same as those considered by the Court in Zosel v. Kohrs, 72 Mont. 564, 578, 234 P. 1089: "But plaintiff alleges that at certain times the waters of Baggs Creek below her ditch and before reaching Cottonwood Creek if not taken by her, would sink and be lost. (She does not say whether the water would reach the Pierce ditch.) She therefore avers that Baggs Creek during that period of the year is not a tributary to Cottonwood. But she is precluded from maintaining this position. The decree determined that Baggs Creek is a trib- utary of Cottonwood Creek; that is an adjudicated fact, and evidence to the contrary will not be heard until a change in the condition sub- sequent to the decree has been shown. (Howell v. Bent, 48 Mont. 268, 137 P. 49.) "If it be true that there are times when the waters at the head of plaintiff's Baggs Creek ditch will be lost unless used by her, not being of sufficient quantity to reach to the ditch next lower upon the stream, her remedy is, in a proper proceeding for that purpose, to ask for a modification of the decree per- mitting her to use the water when those condi- tions obtain. Until modified in that respect she is bound by the decree as it is written." Thus it is appellant, not the district court, who attempts to exceed the scope of section 89-1015. Appellant raises certain specifications of error, which indicate that some of the district court's findings did exceed the scope of section 89-1015. Findings based upon facts and occurrences subsequent to the 1890 decree, and those outside of the pleadings, record, and judgment role of that decree can- not stand. One such finding is that appellant waived any claim to Four Mile Creek by its appearance in Hanson v. Southside Canal Users, 167 Mont. 210, 537 P.2d 325, 32 St.Rep. 611. An- other is that appellant has no claim to Four Mile Creek water under any Water Right Location or Notice of Appropriation filed subsequent to the 1890 decree. We are not ruling upon the merits of these claims, but merely stating that such matters are not for the district court's consideration. 3. The district court found that appellant interfered with and hindered the water commissioner in distributing Four Mile Creek water by asserting that the 1890 decree did not adjudge Four Mile Creek and by locking and rendering inoperative head- gate controls on diversions from Four Mile Creek. Appellant contends this is error. We disagree. There is substantial evidence in the record to support such a finding. The parties agree that appellant disputed the water commissioner's authority on Four Mile Creek. The water commissioner testified that a combination lock was placed on a headgate without his per- mission and without offering the combination to him, and this prevented him from regulating appellant's diversion from Four Mile Creek. The testimony of appellant's ranch manager that the water commissioner knew the combination, and the lock was placed on the headgate to prevent vandalism, merely raises a question of credibility and weight of the evidence. Such matters are for the district court's determination and will not be disturbed on appeal. Appellant questions the propriety of allowing as costs the expense of certain copies of documents, and the abstractor's fee for title reports used in preparing certain maps. The ob- jections to the copies of documents is that they were ordered and paid for when the original petition for clarification was filed. This petition was subsequently dismissed without preju- dice, and other copies were not introduced at trial. Concerning the abstractor's fee, the parties agree that such expense was incurred for the preparation of maps not introduced or used at trial. It has been repeatedly held that no expense of litiga- tion may be recovered unless covered by section 93-8618, R.C.M. 1947, or taken out of its operation by special statute, by stipulation of the parties, or by rule of the court. Roseneau Foods, Inc. v. Coleman, 140 Mont. 572, 374 P.2d 87; Broberg v. Northern Pac. Ry. Co., 120 Mont. 280, 182 P.2d 851. A party is not entitled to recover every expense of litigation. To qualify as an "express provision of law" under sec- tion 93-8618, R.C.M. 1947, as contended by respondents, a stat- ute must address the issue of what is an allowable "cost" and "disbursement". Section 89-1015, R.C.M. 1947, provides: " * * * The judge shall make such order_as,to the payment o f cosk~ of such hearing as m a w e a r +o him to b e . > s + and praper. " _IEmphasis supplied .) The discretion granted the district court in a section 89-1015 action is to determine who will pay the costs, it is not to determine what are allowable "costs". Regardless of whom the district court orders to pay the "costs", section 93-8618, R.C.M. 1947,governs what "costs" are allowable. It is essential that only "costs" incurred in the action for which the judgment is entered be allowed. This prevents any possibility of multiple reimbursement for the same expense. Even though the petition for clarification was filed for the same objective as the previous petition, which was dis- missed, the two were separate and distinct actions. For this reason, those costs incurred in the previous action are not recoverable in the present action, and section 93-8618 states: " * * * the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on trial * * *". A reading of the statute reveals that it is not fatal if the copies are not introduced at trial. They are allowable costs if the district court determines they were "necessarily used in the action", as was done here. See Kenyon v. Automatic Instrument Co., 10 F.R.D. 248, 254, for the distinction between the phrases "use in the case" and "use on trial". In considering the expenses incurred in making maps section 93-8618 States: " * * * the reasonable expenses for making a map or maps if required, and necessary to be used on trial or hearinq * * *". (Emphasis supplied.) This specifically required the map to be used on trial or hear- ing. The introduction in evidence of a map may not be necessary if some use is made at trial and it is necessary to an under- standing of the case. However, in the present case no use whatever was made of the map and for this reason the abstractor's fee connected therewith is not an allowable cost. Appellant's final objection is to the attorney fees awarded respondents, which were incurred in providing proof of the matters of fact set forth in respondents' request for admissions. Rule 37 (c) , M.R.Civ.P., in 1974 stated: " * * * and if the party requesting the ad- missions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court for an order re~uirins the other wartv to Dav him d L A .. . . reasonable expenses incurred in making such proof, including reasonable attorney's fees. * * *" (Emphasis supplied.) Rule 7 (b) (1) , M.R.Civ.P. and Rule 5 (a) , M.R.Civ.P. govern how such an application is to be made. Rule 7(b)(1), M.R.Civ.P. states : "An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion." (Emphasis supplied.) Rule 5 (a) , M.R.Civ.P. states: " * * * every written motion other than one which may be heard ex parte * * * shall be served upon each of the parties affected thereby * * *". (Emphasis supplied.) Decisions rendered prior to the enactment of the Montana Rules of Civil Procedure were in accord with the requirement of Rule 5(a), M.R.Civ.P., and the purpose of the notice requirement is best expressed in McVay v. District Court, 126 Mont. 382, "While our Codes do not specify all the in- stances in which notice of the time for making or presenting an intended motion must be given, the general rule is that a party interested in resisting the relief sought by a motion has a right to notice and an opportunity to be heard. * * * "The requirement that timely notice be given of the making of the proposed motion is to afford opposing counsel the opportunity to be present and intelligently to oppose the motion when made." (Emphasis supplied.) Here, respondents incorporated their "Motion" within their proposed findings of fact and conclusions of law. The first notice to appellant of this motion was when the district court awarded attorney fees to respondents in its findings of fact and conclusions of law. Such notice is insufficient to allow a resisting party "the opportunity to be present and intelligently to oppose the motion when made." For this reason, the award of attorney fees was error. This cause is affirmed in part and reversed in part. It is remanded to the district court to amend the findings of fact, conclusions of law, and the judgment and to retax costs in accordance with this decision. Chief Justice H We concur: W&J-&--- Justices

April 12, 1977

b9993e83-4302-4e63-bf47-e7b8b6eaa591

BAILS v WHEELER RICHARDSON

N/A

13322

Montana

Montana Supreme Court

No. 13322 IN THE SUPREME COURT OF THE STATE OF MONTANA RICHARD J. BAILS and PATRICIA J. BAILS, husband and wife, plaintiffs and Appellants, NORMAN C. WHEELER and V7ILLIAP4 RICHARDSON, Defendants and Respondents. Appeal from: District Court of the Eighteenth Judicial District Honorable W. W. Lessley Judge presiding Counsel of Record : For Appellants: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Ben E. Berg argued, Bozeman, Montana For Respondents: Landoe and Gary, Bozeman, Montana Hjalmar Landoe argued, Bozeman, Montana Bennett and Bennett, Bozeman, Montana Lyman Bennett, Jr. araued and Lyman Bennett, I11 appeared, Bozeman, ~ontana Filed: Submitted: January 10, 1977 M r . ~ u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court. This i s a n a c t i o n f o r damages by t h e purchaser of a ranch a g a i n s t two r e a l estate agents based on alleged fraudulent r e p r e s e n t a t i o n s whereby he was induced t o e n t e r i n t o t h e purchase c o n t r a c t . The d i s t r i c t c o u r t of G a l l a t i n County entered summary judgment f o r defendants. P l a i n t i f f purchaser appeals. A synopsis of t h e t r a n s a c t i o n forming t h e b a s i s of t h i s s u i t appears i n our opinion i n B a i l s v. Gar, Mont . I P. 2d , 33 St.Rep. 1 2 5 6 . That c a s e w a s a s u i t by t h e pur- chaser of t h e ranch a g a i n s t t h e seller based on a l l e g e d f a l s e r e p r e s e n t a t i o n s inducing t h e purchaser t o e n t e r i n t o t h e c o n t r a c t ; t h e i n s t a n t case i s a s u i t by t h e purchaser a g a i n s t t h e two real e s t a t e agents based upon s u b s t a n t i a l l y t h e same r e p r e s e n t a t i o n s . W e vacate t h e summary judgment here f o r t h e same reasons we vacated supra, it i n B a i l s v. G a r / v i z . t h a t t h e r e a r e genuine i s s u e s of m a t e r i a l f a c t precluding summary judgment. The a l l e g e d f a l s e r e p r e s e n t a t i o n s i n t h e i n s t a n t s u i t a r e t h a t t h e ranch c o n t a i n s 5,200 deeded a c r e s ; t h a t it would r a i s e and s u s t a i n 400 animal u n i t s ; t h a t t h e r e w e r e 300 a c r e s of hay land which produced 900 t o n s of hay per year; t h a t t h e r e were 60 acres of c r o p b n d which produced 2 1 bushels of g r a i n per acre; and t h a t t h e property would produce an income of a t least $80,000 per year. A so-called "brochure" appears t o contain t h e p r i n c i p a l r e p r e s e n t a t i o n s on which t h e i n s t a n t c a s e is based, and t h e r e a l source of f a c t u a l i s s u e s . It i s both i d e n t i f i e d a s "Exhibit A" attached t o t h e complaint which contains t h e f i r s t four represen- t a t i o n s complained o f , and a t one p o i n t it i s r e f e r r e d t o by a defense a t t o r n e y a s t h e "missing brochure". There i s much con- fusion surrounding it. B a i l s says he received a "brochure", apparently from Richardson, describing t h e ranch and containing most of t h e misrepresentations complained o f . Although he does n o t iden- t i f y "Exhibit A" as t h e document he received, he says it is very s i m i l a r t o it. Richardson says he received t h e "brochure" from Wheeler and simply relayed it t o B a i l s . Wheeler argues Richardson must have changed it because B a i l s does n o t i d e n t i f y t h e one Wheeler s e n t a s t h e one he received. These c o n f l i c t i n g c o n t e n t i o n s concerning t h e "brochure" t o g e t h e r with our d i s c u s s i o n i n B a i l s v. Gar, supra, i n d i c a t e i s s u e s of f a c t precluding summary judgment. A s t o t h e f i f t h r e p r e s e n t a t i o n , defendants argue t h e r e p r e s e n t a t i o n t h e ranch would produce $80,000 income is a n opinion and n o t a c t i o n a b l e a s fraud. This r e p r e s e n t a t i o n ap- p a r e n t l y came o u t of a d i s c u s s i o n among t h e p a r t i e s while B a i l s was being shown t h e ranch. B a i l s says Richardson s t a t e d t h e ranch would produce $100,000 income and Wheeler reduced t h a t f i g u r e t o $80,000. B a i l s says he believed t h e s e men t o be honest and t r u s t e d them. A l l p a r t i e s c i t e t h e following r u l e as c o n t r o l l i n g : " * * * I f t h e p a r t y expressing t h e opinion possesses s u p e r i o r knowledge, such a s would reasonably j u s t i f y t h e conclusion t h a t h i s opinion c a r r i e s with it t h e implied a s s e r t i o n t h a t he knows t h e f a c t s which j u s t i f y it, h i s statement i s a c t i o n - a b l e i f he knows t h a t he does n o t honestly e n t e r - t a i n t h e opinion because it is c o n t r a r y t o t h e f a c t s . " Como Orchard Land Co. v. Markham, 54 Mont. 438, 443, 171 P. 274. The opinion of t h e Court i n Como continues: "So, l i k e w i s e , a n opinion may be s o blended with f a c t s t h a t it amounts t o a statement of f a c t s . " W e hold t h e income r e p r e s e n t a t i o n may be a c t i o n a b l e with- i n e i t h e r of t h e above r u l e s depending on determination of i s s u e s o f f a c t . I n d i c a t i o n s a r e t h e r e a l e s t a t e brokers had s u p e r i o r knowledge of ranching and one of them had s u p e r i o r knowledge of t h e p a r t i c u l a r ranch i n question. A c a s h flow e s t i m a t e had been prepared t h a t year i n d i c a t i n g a much lower income. For t h e foregoing reasons, t h e summary judgment i s vacated and t h e cause remanded t o t h e d i s t r i c t c o u r t , G a l l a t i n County, f o r f u r t h e r proceedings c o n s i s t e n t w i t h t h i s opinion. J u s t i c e

February 4, 1977

b9872f7c-ae3f-4780-8f58-91d40ba8a4e2

STATE v LAHR

N/A

13134

Montana

Montana Supreme Court

No. 13131a IN THE SUPREI.tE CGURT OF THE STATE OF MONTANA 1977 T H E STATE OF M O N T A N A , P l a i n t i f f and Respondent, -vs- H A R O L D CHESTER LABR, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t , Honorable LeRoy L. McKinnon, Judge p r e s i d i n g . Counsel of Record: For Appellant: Bradley B. P a r r i s h argued, Lewistown, Montana For Respondent : Hon. Michael Greely, Attorney General, Helena, Montana J. Mayo Ashley, A s s i s t a n t Attorney General, argued, Helena, Montana W i l l i a m Spoja, Jr., County Attorney, Lewistown, Montana Robert L. Knopp, Deputy County A t t o r n e y , appeared, Lewistown, Montana Submitted: January 2 1 , 1977 , - - - r Decided: -E& 24 1 9 n Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal concerns probable cause for an arrest for illegal possession of dangerous drugs. The district court,Fergus County, after hearing on a motion to suppress held sufficient probable cause existed for the arrest. Thereafter defendant Harold Lahr was tried and convicted of the charge. On the evening of September 7, 1974, defendant Harold C. Lahr and Richard Biehl drove from Moore, Montana to Denton, Montana in Lahr's automobile. Sheriff's Lleputy David Sirucek was on duty in Denton that evening and noticed Lahr and Biehl as they entered town. Sirucek, who had positioned himself nearby, observed Lahr and Biehl conversing with one John Linse. Deputy Sirucek was aware of Linse's previous drug related arrests, Using binoculars, Deputy Sirucek observed what he believed to be a transaction take place between the parties. Sirucek testified that a package appeared to change hands, however, he had no idea what kind of package, only that the circumstances were somewhat suspicious. Lahr and Biehl left Denton soon after their conversation with Linse and proceeded toward Lewistown, Montana. Deputy Sirucek then radioed Deputy Randle Cordle in Lewistown and informed him of the suspicious transaction. He asked Cordle to "pick them up when they came into Lewistown to see what they were up to." Deputy Cordle positioned his unmarked patrol car approx- imately four to five miles outside Lewistown and waited for the Lahr vehicle. As the Lahr vehicle approached Lewistown, Deputy Cordle followed the car for approximately three miles at a dis- tance of one to four car lengths. Lahr testified he considered the vehicle following him so closely a dangerous s i t u a t i o n and attempted t o have t h a t vehicle pass him. He further t e s t i f i e d he slowed and waved f o r t h e following vehicle t o pass. Deputy Cordle t e s t i f i e d t h a t while following the Lahr vehicle he observed it swerve over t h e center l i n e of the highway twice and go onto t h e shoulder three times. Cordle s t a t e d he con- sidered Lahr's manner of driving reckless i n l i g h t of t h e f a c t t h e c a r s were only traveling from 35 t o 40 miles per hour, so he dis- played h i s flashing red l i g h t and Lahr pulled t o the side of the road. Both Deputy Cordle and Lahr alighted from t h e i r vehicles and Deputy Cordle asked t o see Lahr's d r i v e r ' s license. Lahr returned t o h i s car t o g e t h i s license. As he was r e t r i e v i n g it from h i s coat pocket, Deputy Cordle observed a quantity of what he believed t o be marijuana i n the console between the f r o n t s e a t s of Lahr's car. A t t h a t time Cordle placed Lahr and Biehl under a r r e s t f o r i l l e g a l possession of dangerous drugs. A t no time was Lahr charged with any driving violation. Lahr was found g u i l t y of i l l e g a l possession of dangerous drugs; Biehl was found not g u i l t y of t h a t charge. Whether there was probable cause f o r t h e a r r e s t i s t h e issue before t h i s Court on appeal. Section 95-608(d), R.C.M. 1947, provides the circumstances under which peace o f f i c e r s may make a warrantless a r r e s t , it s t a t e s : "A peace o f f i c e r may a r r e s t a person when: "* * * "(d) He believes. on reasonable grounds, t h a t t h e person i s committing an offense, o r t h a t the person has committed an offense and the existing circumstances require h i s immediate a r r e s t . I I See: State ex r e l . Glantz v. District Court, 154 Mont. 132, 461 P.2d 193; State v. Fetters and Lean, 165 Mont. 117, 123, 526 P.2d 122; State v. Bennett, 158 Mont. 496, 493 P.2d 1077. However, the validity of an a r r e s t under section 95-608(d), is determined by the presence of probable cause. In Fetters and Lean the Court stated the well-established rule i n Montana: "Whether the arrests a r e valid depends, i n turn, upon whether a t the moment the arrests were made the officers had probable cause- i . e . whether a t that moment the facts and circumstances within their knowledge and of which they had reasonable trustworthy information were sufficient t o warrant a prudent man i n believing defendants had committed o r were committing an offense and the circum- stances required their immediate arrests. Section 95- 608(d), R,C.M. 1947; State v. Bennett, supra; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 ." It i s clear that neither Deputy Sirucek nor Deputy Cordle had probable cause t o a r r e s t Lahr. Deputy Sirucek had a suspicion that an i l l e g a l transaction had taken place i n Denton, but nothing more. O n cross-examination a t a hearing on a motion t o suppress he t e s t i f i e d : "Q. You saw what you thought was a suspicious trans- action and you--why didn't you a r r e s t them i f you thought something was going on? A. I had no grounds for an arrest. "Q. You had no grounds for an a r r e s t ? A. N o sir. "Q. And yet you called Officer Cordle and said there was something suspicious? A. Yes, s i r . I t Deputy Cordle t e s t i f i e d he i n i t i a l l y stopped Lahr for a driving violation, however a t r a f f i c c i t a t i o n was never issued. Clearly, the t r a f f i c stop was merely a pretext used by Deputy Cordle t o follow up on the c a l l received from Deputy Sirucek. Eence, Deputy Cordle was also acting on a mere suspicion. The evidence required t o establish g u i l t i s not necessary to prove probable cause for an a r r e s t , however good f a i t h o r mere suspicion on the part of arresting officers is not enough. State v. Fetters and Lean, supra; State ex r e l . Wong You v. District Court, 106 Mont. 347, 78 P.2d 353. Furthermore, an a r r e s t i s not justified by what the subsequent search discloses. State v. Fetters and Lean, supra; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L A ed 2d 134; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L ed 543. W e reverse on the grounds of lack of probable cause for the arrest. Justices. J u s t i c e Frank I. Haswell d i s s e n t i n g : I n m y view t h e conviction should be affirmed. The a d m i s s i b i l i t y of t h e dangerous drugs and smoking paraphernalia depends on whose version of t h e f a c t s i s accepted, Deputy Cordle's o r defendant's. The d i s t r i c t c o u r t must have accepted Deputy Cordle's version o r t h e c o u r t would not have denied t h e defend- a n t ' s motion t o suppress. This Court should not r e v e r s e t h i s implied f a c t u a l finding based on c i r c u m s t a n t i a l , though c o n f l i c t - ing,evidence. I f t h e r e is no c l e a r preponderance of evidence a g a i n s t t h e d i s t r i c t c o u r t ' s f a c t u a l determination, it should not be disturbed on appeal. Crncevich v. Georgetown Recreation Corporation, Mont. , 541 P.2d 56, 32 St.Rep. 963, and cases c i t e d t h e r e i n . A s I see it, t h e events i n Denton a r e i r r e l e v a n t and f u r n i s h no b a s i s f o r stopping defendant's c a r . But according t o Deputy Cordle t h e defendant's v e h i c l e t w i c e swerved over t h e c e n t e r l i n e and t h r e e times went onto t h e shoulder of t h e road i n Deputy Cordle's presence. This gave Deputy Cordle a r i g h t t o s t o p t h e v e h i c l e and ask t o see t h e defendant's d r i v e r ' s l i c e n s e . I n t h i s process Deputy Cordle observed i n p l a i n view t h e two roaches of marijuana c i g a r e t t e s , a f i l m c a n n i s t e r used t o contain marijuana, and a hash pipe. Thereafter he placed t h e defendant under a r r e s t . The majority c i t e s e c t i o n 95-605(d), R.C.M. 1947, a s amended, a s d e t a i l i n g t h e circumstances under which an o f f i c e r may make a warrantless a r r e s t . One of t h e s e circumstances is where, a s here, an o f f e n s e i s committed i n t h e o f f i c e r ' s presence. Normal p o l i c e procedure i n c i d e n t t o a t r a f f i c s t o p i s a r e q u e s t t o see t h e person's driver's l i c e n s e . During t h i s process Deputy Cordle observed t h e dangerous drugs i n p l a i n view. A t t h i s p o i n t he had probable cause t o a r r e s t t h e defendant. This i s i n accord with our holding i n S t a t e v. F e t t e r s and Lean and - 6 - the other cases cited by the majority. The majority point out that the defendant was never arrested on the traffic charge and therefore conclude that the traffic offense either did not occur or that it was a mere subterfuge to get a look in defendant's car. This is pure supposition, in my view, as common experience demonstrates that in many cases where a second more serious crime is discovered while investigating a lesser offense, the person is frequently not charged with the lesser offense. What the majority have done here is accept the version of defendant that his erratic driving was the result of tail- gating by Deputy Cordle in preference to Deputy Cordle's version to the contrary. In so doing they have made an independent factual determination contrary to that made by the district court in denying defendant's motion to suppress. For these reasons I respectively dissent. Justice

February 24, 1977

d8f7dc88-950a-47a0-ad3c-cb46cfd3b293

Montana State Highway Commission v. Jacobs

435 P.2d 274

11286

Montana

Montana Supreme Court

435 P.2d 274 (1967) MONTANA STATE HIGHWAY COMMISSION, Plaintiff and Appellant, v. Mabel JACOBS, Marjorue J. Noel, Randolph Jacobs and Theodore Jacobs, Defendants and Respondents. No. 11286. Supreme Court of Montana. Submitted September 14, 1967. Decided December 14, 1967. *276 Daniel J. Sullivan (argued), Helena, for appellant. Boone &amp; Karlberg, Dalton T. Pierson, William T. Boone (argued), Missoula, for respondents. JOHN C. HARRISON, Justice. This is an appeal by the State from a judgment entered in an eminent domain action brought by the Montana Highway Commission in which the jury awarded compensation in the amount of $90,000. The case was tried in the district court at Missoula, the Honorable Jack L. Green, judge presiding. The property in question is a unit of some 850 acres located approximately 3 miles east of Missoula. The southern boundary of the property is at the base of Mount Sentinel. From this southern boundary the line extends in a semi-circle or ox bow north, east and south along the main channel of the Clark Fork River. The tract is sometimes called the Bandman Ranch or Bandman Flats. Interstate Highway 90 now bisects the property east and west for a distance of 5,500 feet. Topographically, the property is a series of benches and terraces. The highway traverses the property through the highest terrace in a cut section with a width of 280 feet, then goes into a section at grade with a width of 240 feet. As a consequence of the construction of the highway there is a triangular area created south of the interstate which is cut off from the main part of the property. There is access to this portion of the property by means of a county road which traverses the property it crossing the interstate by means of an underpass. A small part of the land taken results from the widening of the county road at the approaches to the underpass. The total taking for the highway is 32.31 acres and the widening of the county road takes 1.04 acres for a total take of 33.35 acres. There is no access to this property from the interstate. From the interstate the first access point west of the property is at the East Missoula interchange and the first point of access east of the property is at the Milltown interchange. Access to the property is from U.S. Highway 10 located across the river. The county road takes off from U.S. 10 and crosses the river on a bridge that has a 3-ton load limit. After crossing the bridge the county road traverses the property, goes under Interstate 90, crosses a railroad right of way at the *277 southern part of the property and then goes through an area called Deer Creek. The compensation due to the defendants is the value of what was taken from them plus any depreciation in value of the property not actually taken but injuriously affected. This value is determined by the actual value of the land at the date on the service of the summons, in this case, May 7, 1965. R.C.M. 1947, § 93-9913. The "actual value" is the price that would in all probability result from fair negotiation, where the seller is willing to sell and buyer desires to buy the market value. State Highway Comm. v. Milanovich, 142 Mont. 410, 384 P.2d 752; State Highway Comm. v. Peterson, 134 Mont. 52, 328 P.2d 617; State v. Lee, 103 Mont. 482, 63 P.2d 135. In this case just compensation is the market value of what was taken plus the dollar amount the remainder depreciated in value on the market because of the construction of the highway. Compensation is based on the highest and best use to which the land is adaptable, whether so used at the time of the summons or not. State Highway Comm. v. Hoblitt, 87 Mont. 403, 288 P. 181. At the date of the service of summons the land in this case was used for agricultural purposes. However, all of the witnesses for both parties agreed that the highest and best use of the land at the pertinent date was for residential subdivision development. Thus, the compensation due to defendants is properly determined by considering the market value of the land in relation to prices paid in the Missoula area for land to be developed into residential subdivisions. As is often the case when a condemnation suit is litigated, the values placed on the land were far apart. The witnesses for the state testified that just compensation would be between $13,340 and $18,675. The defendants' witnesses assessed compensation between $111,975 and $129,000. The jury, as is seen by the award of $90,000, attached greater weight to the testimony of the value witnesses for the defense than to that of those for the State. The State asserts in this appeal that the findings of the jury cannot be upheld as the amount awarded was far in excess of just compensation. It is the defendants' value evidence that is first attacked. The State claims defendants' expert witnesses based their opinions on mere speculation. The word speculation may be used in two ways. In one sense, it is used to describe undeveloped property that may have a certain value due to mineral, timber, housing or other potential. A market value for such property may be shown. This value is speculative, but it is able to be objectively appraised. In the other sense "speculation" is a synonym for conjecture or guess. It is value evidence based on this second type of speculation that cannot contain a jury verdict. State Highway Comm. v. Antonioli, 145 Mont. 411, 401 P.2d 563. Ascertaining the value of residential sub-division land requires some "speculation." However, such "speculation" may be of the first sort set out above and if a proper foundation is laid an expert witness may give his opinion of the value of such land. The first value witness for defendants was a Mr. Weidenfeller. He is a real estate man in the Missoula area and has been for more than 20 years. He specialized in the development of residential property. In his testimony he stated that he was familiar with the property here in question and also the market for such property in the area. Having shown that he knew more than the ordinary person on the street about the subject in question and that he testified to facts within his own knowledge and observation he was qualified to give his opinion as an expert. State Highway Comm. v. Peterson, supra; Yellowstone Park Ry. Co., v. Bridger Coal Co., 34 Mont. 545, 87 P. 963. His testimony was that just compensation to defendants would be $129,000. Of this $66,000 would be for what was taken and $63,000 depreciation to the remainder of the property. Mr. Weidenfeller stated that his valuation was based upon three recent land *278 transactions in the Missoula area in which he was involved. The prices paid and received in these transactions were not offered as substantive evidence of what the subject property was worth. When a price paid for another piece of property is offered as evidence of the value of property sought to be condemned a strong similarity between the two parcels must be shown to exist. State Highway Comm. v. Tubbs, 147 Mont. 296, 411 P.2d 739. However, when the value of another piece of property is testified to, as was the case here, for the purpose of showing the basis for an expert's knowledge of the market and his opinion of value, the requirement of similarity is not so strict and the question of the admissibility of the testimony is largely in the discretion of the trial judge. 5 Nichols on Eminent Domain, § 18.42(1), p. 253; 27 Am.Jur.2d, Eminent Domain, § 429, pp. 431-35; 29A C.J.S. Eminent Domain § 273(10), p. 1209. Here the pieces of land used by the witness as a basis for his opinion were raw lands, without utilities in place, were within the same economic area as defendants' land, the sales were sufficiently close in point of time to afford a fair comparison and were made in a free and open market for cash. The trial court did not abuse its discretion in admitting testimony as to them. On very thorough direct and cross examinations the entire basis for the witness's valuation was brought out. He stated that he assigned different values to different portions of the land and that the new highway went through some of the most valuable land. He outlined how he determined the remaining land was depreciated, what portions of it were depreciated and how much. He stated on cross-examination that he did not deduct from his valuation because of the lack of close schools and utilities and because of the access problem. He thought these things would be supplied or remedied as the need arose. These statements go to the weight that his opinion carried with the jury. They may tend to weaken his testimony but as a qualified expert witness he could make them. Defendant's second value witness, a Mr. Tomlinson, gave an opinion that just compensation would be $127,000, $66,000 for what was taken and $61,000 depreciation to the remainder. Mr. Tomlinson has been a building contractor for over 20 years and since 1957 has been in the real estate business in Missoula as a partner with Mr. Weidenfeller. His appraisal was similar to that of Mr. Weidenfeller. He qualified as an expert and as such could give an opinion. As the basis of his opinion and to show his knowledge of the market he testified to the same sales of property in the area as did his partner. We have already approved of testimony concerning these sales for this purpose. Any weaknesses in his testimony were brought out for the jury by the able cross examination by counsel for the State. The testimony of defendants' third value witness was introduced by deposition. The witness, Mr. Saunderson, was out of the country at the time of trial so by agreement his testimony was read to the jury. Mr. Saunderson has a background of land appraisal work for many agencies of the national, state and local governments as well as having appraised lands for several private corporations. Most of his work has been in appraising agricultural lands but he is not without experience in valuing urban real estate. He stated that he made an investigation of the market for residential development land in the Missoula area. He mentioned that he had looked into many recent sales on the open market in the area, some large and some small. He found the sales in which the two previous witnesses for the defendants were involved to be the most helpful in enabling him to form an opinion. After studying the property in question his estimate of just compensation was $111,975. Again, the entire basis for his valuation was placed before the jury. The expert testimony concerning value presented by the defendants was not *279 based on that type of "speculation" that amounts to mere guessing or conjecture. It was adequate in law. Therefore, there was evidence before the jury that would sustain their verdict. The State also assigns as error the overruling of its objection to the use of defendants' exhibit 12 for demonstrative purposes. This exhibit consists of two drawings or plats of the subject property, which show the property divided into lots, streets, parks, school areas, church areas and commercial sites. These plats have never been recorded. One of these plats showed the tract with the interstate highway running through it and the other was drawn without the interstate. Both drawings were made after the highway was in existence. The testimony relative to these plats was given by a Mr. Marsden. On direct examination he had given an opinion that the property would suffer a loss in value because the interstate bisects it. Mr. Marsden is engaged in the work of city planning for a firm in the State of Washington. He showed that he had knowledge of how residential subdivisions were planned and that he was familiar with the defendants' property. He was qualified to give his opinion that the highway crossing the property would be of a disadvantage to its use as a subdivision. The plats were shown to illustrate the basis of the testimony by way of demonstrating what path the new highway followed through the property and the shape of the two pieces into which it had been divided. They also demonstrated that the property was truly adaptable for a residential subdivision. The State claims that showing these plats to the jury was reversible error because they caused them to speculate and to value the land as lots and roads that did not exist at the time of the service of summons. The jury was well aware that these plats did not represent the tract as it existed at the date of summons or at the time of trial. While Mr. Marsden was on the stand he stated on both direct and cross-examination that these plats did not show improvements that were actually in existence. Several large aerial photographs were in evidence showing clearly that the tract was raw land. Throughout the entire trial it was made entirely clear that there were no improvements on the land and it was not to be valued as if there were. In its instructions to the jury, the court made it clear that the jury was not to speculate or guess what the land would be worth in the future but to value it as it was. It is common practice to allow a witness to use such aids as these plats to illustrate his testimony to the jury. Whether the use of these aids is proper rests largely in the sound discretion of the trial judge. Unless there is a manifest abuse of this discretion we will not overturn the lower court's discretion in the matter. 98 C.J.S. Witnesses § 327, p. 28. In eminent domain proceedings, this court has long made it a policy not to interfere with the findings of the jury unless the award given is so obviously and palpably out of proportion to the value of what was taken as to be in excess of just compensation provided for by section 14, Article III, of the Montana Constitution. Alexander v. State Highway Comm., 147 Mont. 367, 412 P.2d 414; State Highway Comm. v. Peterson, supra; Interstate Power Co. v. Anaconda Copper Mining Co., 52 Mont. 509, 159 P. 408. In this case there was sufficient evidence properly before the jury to sustain a verdict higher than that given. Thus, we cannot say that the amount awarded was obviously and palpably out of proportion to just compensation. Having reviewed the record carefully and examined closely the specifications of error assigned by the State we find that there was no substantial error in the proceedings in the lower court and the judgment entered therein is affirmed. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES HASWELL, ADAIR and CASTLES concur.

December 14, 1967

e5ad77ca-e532-462a-a190-870fd601024f

Schwartzkopf v. Industrial Accident Board

428 P.2d 468

11104

Montana

Montana Supreme Court

428 P.2d 468 (1967) John SCHWARTZKOPF, Claimant, v. INDUSTRIAL ACCIDENT BOARD, Defendant. No. 11104. Supreme Court of Montana. June 6, 1967. Rehearing denied June 21, 1967. Michael J. Whalen, Billings, for claimant. L.V. Harris, Helena, for defendant. JAMES T. HARRISON, Chief Justice. This is an appeal in an industrial accident case from the judgment of the district court which affirmed the order of the Industrial Accident Board denying any further workmen's compensation. The claimant-appellant is John Schwartzkopf and will be referred to as claimant. The defendant-respondent is the Industrial Accident Board and will be referred to as the Board. The facts of the case are these: Claimant was employed as a cab driver by the Eagle Cab Company of Billings. He was admittedly involved in an industrial accident which happened when the cab which he was driving was struck from behind by another car. This accident happened on June 15, 1962. An industrial accident claim was presented to the board. Claimant was awarded compensation at the rate of $29.00 per week for a period of 7 weeks and 6 days. This award was made during the year of 1962. Claimant continued to work for some five days after the accident at which time he quit because of his many complaints about his health which he attributed to the accident. Claimant sought no aid from a medical doctor after the accident although he did go to a chiropractor about twelve days after the accident. Claimant became dissatisfield with the frequency of the chiropractor's treatments and sought out the aid of another chiropractor. Claimant stated that neither chiropractor's treatments afforded him any permanent relief from his many ailments. He explained his failure to *469 seek medical advice by stating that he was too ill. About one month after the accident, claimant settled his claim against the other driver involved in the accident for $523.00. Claimant made this settlement without the aid of an attorney. On August 18, 1964, claimant filed with the Board a petition for determination of disability, seeking an award of total disability, permanent in character, for the accident of June 15, 1962. After a hearing before the Board, the Board denied compensation. Claimant appealed to the district court which allowed claimant to present additional testimony. The district court also denied compensation. At the time of the accident, claimant was a single man, about 58 years of age. He lived with his widowed mother, then in her eighties. He had no regular trade, occupation, skill or profession by which he earned his living. He had lived on a farm from his birth until 1942, when at the age of 38 he moved with his mother to Billings. From 1942 to 1962, he spent most of those years with his mother although his mother testified that he had gone to California for a couple of years to work for his brother. For the ten years prior to the accident, claimant's annual income never exceeded $1,400.00. He earned $1,400.00 in 1952 when he worked nearly a full year as a cab driver. His earnings during this ten year period continually diminished, and during at least three of those years, he earned less than $600.00. After 1952, claimant usually worked only the summer months as a cab driver although a couple of years he did start as early as April and worked through August. At the time of the accident, claimant had been back on the job for only five days, and this was the first work he had done since 1960. Claimant spent a good deal of the time when he was unemployed in practicing, studying, and composing music. He was also interested in inventing, but he had never sold any of his compositions nor patented any of his inventions. In addition to claimant's own testimony, the testimony of Dr. Perry M. Berg, an orthopedic surgeon, was presented to the board. Dr. Berg examined claimant on November 15, 1962, and September 29, 1964. Claimant had explained to Dr. Berg his many complaints about his physical health which he thought resulted from the accident. However, Dr. Berg testified that there was no physical or organic basis for claimant's many complaints about his health. It was Dr. Berg's opinion that these complaints stemmed from an emotional or mental problem. He stated that claimant was physically fit to drive a cab or do other work and that such work would be beneficial for claimant. The Board concluded that there was no medical reason why claimant could not resume his work and that he had suffered no permanent disability and that his claim for further benefits must be denied. In his appeal to the district court, claimant presented the additional testimony of his mother, a neighbor, and Dr. Lino M. LaPenna, a psychiatrist. Dr. LaPenna had examined claimant on June 7, 14 and 21, 1965. In addition, Dr. LaPenna had claimant tested psychologically by a Dr. Wilson, a clinical psychologist. Dr. LaPenna's testimony revealed that claimant had suffered from a mental illness for many years and that he "had been marginally adjusted to life for most of his life * * * operating with some degree, even though minimal, of success * * *." Dr. LaPenna stated that it was his opinion that claimant was not treatable because of his age and because of the fact that he had lived so long in the pattern which his mental illness caused. Dr. LaPenna stated that it was difficult to motivate people of claimant's age toward personality changes. It was Dr. LaPenna's opinion that claimant would never resume working. The doctor explained the relationship between the accident and claimant's likelihood of ever returning to work in this manner: "Q. And could you tell the Court, please, whether or not this inability to go back to *470 work has anything to do with this accident to which you have referred. A. Well, I think that the accident precipitated this situation. "Q. This disability to which you are referring? A. Right. I mean, this is a speculation that we have to accept, that had the accident not occurred he would presumably have continued working." After hearing all the testimony, the district court found that "The preponderance of the evidence establishes that the claimant does not suffer any substantial disabling condition from his accident which would prevent him from returning to his former employment, and that he does not suffer physical disability from performing such employment." The district court further found that "Claimant's mental problems pre-existed his accident of June 15, 1962, and prevent him from engaging in steady employment prior to his accident." The district court concluded as a matter of law that "The mental difficulties from which claimant suffers are not compensable as a physical condition within the contemplation of section 92-418, R.C.M. 1947." For any claimant to recover under section 92-418, he must establish the direct relationship between the industrial accident and his physical condition after such accident. In the instant case, the district court did not make such a finding of the direct relationship between claimant's inability to return to work and the accident, but rather the district court found that claimant's mental problems had prevented steady employment even before the accident. Thus, the issue presented by this appeal is whether the evidence is sufficient to substantiate the findings of the district court. The argument made in claimant's brief assumes that the testimony of Dr. LaPenna is sufficient to establish the necessary relationship between the claimant's mental problems and the accident. However, this relationship does not necessarily follow from Dr. LaPenna's testimony. His testimony indicated that claimant's mental illness had limited claimant to a marginal participation in society. He described claimant as untreatable due to his age and long period of living in such a manner. When questioned about the relationship between the accident and the fact that claimant might never return to work, Dr. LaPenna would only go so far as to call it a "speculation" that claimant's failure to return to work was caused by the accident. The evidence presented to the district court failed to establish the essential element of claimant's case the direct relationship between the accident and his present condition. The various authorities to which claimant has referred this court are not applicable because he failed to establish this essential element. We might speculate as to why claimant does not want to return to work, and the district court might also speculate as to the same matter. However, an award of compensation must be based on better evidence than speculation. The record substantiates the findings of the district court. It is well-established that the district court's findings will not be reversed unless the evidence clearly preponderates against them. See Newman v. Kamp, 140 Mont. 487, 374 P.2d 100. We have carefully considered the issues presented by claimant and find them to be without merit. In regard to the Board's cross assignment of error we deem that issue moot due to the determination of this appeal. The judgment appealed from is affirmed. ADAIR, DOYLE, CASTLES and JOHN CONWAY HARRISON JJ., concur.

June 6, 1967

2c0370ea-b1b9-4573-bbe3-b00996beb6ec

Graham v. Rolandson

435 P.2d 263

11080

Montana

Montana Supreme Court

435 P.2d 263 (1967) James W. GRAHAM, Plaintiff and Respondent, v. Jean ROLANDSON, Defendant and Appellant. No. 11080. Supreme Court of Montana. Submitted September 14, 1967. Decided November 30, 1967. Rehearing denied December 20, 1967. *265 Herron &amp; Reber, Helena, Patrick F. Hooks, Townsend, Clayton R. Herron (argued), Helena, for appellant. Rankin &amp; Acher, Helena, Arthur P. Acher (argued), Helena, Larry O. Foss (argued), Townsend, for respondent. HASWELL, Justice. This is an appeal by defendant from a judgment rendered against her in the sum of $15,915.60 in the district court of Broadwater County following a jury trial, and after defendant's motion for new trial had been denied. The suit in question is a wrongful death action by the father of an eight and one-half year old boy who, while riding a bicycle, was struck by an automobile driven by defendant. This tragic accident occurred during the afternoon of May 7, 1963, on a city street in Townsend, Montana. At the time the accident occurred, it was broad daylight on a clear, sunny spring day. The road surface where the accident occurred was gravel and the roadway was dry. Jean Rolandson (hereafter referred to as defendant) was driving a 1960 Oldsmobile four-door equipped with power brakes and was carrying the following passengers: Defendant's daughter Nancy, age 5½, was riding in the front seat next to the right front door; defendant's son Michael, age 1½ was riding in the middle of the front seat between defendant and Nancy. Defendant was driving easterly on B Street and crossed the intersection at Spruce Street, which latter street runs at right angles to B Street. After crossing this intersection, defendant proceeded east on B Street in the eastbound lane of travel. At a point about 45 feet east of the east boundary of the intersection in defendant's lane of travel, the front end of defendant's Oldsmobile struck the bicycle on which James Perry Graham (hereafter referred to as the deceased boy) was riding. This resulted in the deceased boy becoming wedged under the defendant's car between the oil pan and the road surface from which he suffered injuries resulting in his death the following day. James W. Graham, the father of the deceased boy, and hereafter referred to as plaintiff, filed his complaint seeking damages for the wrongful death of his son. The complaint alleges negligence on the part of defendant on two theories: (1) standard negligence in various specified particulars; and (2) negligence based on the doctrine of "last clear chance." Defendant's answer contains two defenses: (1) denial of any negligence on her part; and (2) contributory negligence on the part of the deceased boy. Plaintiff thereafter filed his reply directed at the defense of contributory negligence and containing two contentions: (1) a general denial that the deceased was contributorily negligent; and (2) a contention that an eight year old boy is incapable of contributory negligence as a matter of law. The action proceeded to jury trial on the basis of these pleadings and the issues framed therein. No eye witnesses to the accident testified at the trial other than the defendant who testified by deposition. The substance of her testimony insofar as it is pertinent to the issue of liability can be summarized in this manner: She was driving east on B Street and as she approached the Spruce Street intersection, she slowed down almost to a stop. She looked both ways, saw no cars or children in the street, and proceeded through the intersection. At some point before reaching the alley she saw a "blur" on her windshield, applied her brakes, felt her car hit something but was not sure at first what it was, got out of her car when it came to a stop, and discovered that she had struck a boy on a bicycle who was presently wedged under her car. She *266 thinks that the boy on the bicycle came diagonally across B Street traveling in a southeasterly direction. She could have turned left to avoid the boy on the bicycle. She does not know whether she pulled her car to the right upon seeing "the blur" and applying her brakes, or whether she was traveling on the same line as where her car came to a stop following the accident. She was not traveling very fast at the time of the accident. Beyond this deposition of the defendant, reconstruction of the facts of the accident at the trial was dependent upon physical facts observable at the accident scene, the testimony of witnesses concerning condition existing in the accident area shortly before and shortly after the accident, statements allegedly made by defendant at the accident scene and thereafter, and expert opinion evidence as to the speed of defendant's automobile based upon tests and hypothetical assumptions. It must be noted that there is no direct testimony or evidence as to how the deceased boy got from the steps of the porch on the Masonic Lodge where he was playing immediately prior to the accident to the point where he was struck on his bicycle by defendant's automobile. The Masonic Lodge is located more or less on the northeast corner of the intersection of B Street and Spruce Street, but sits back an undetermined distance from the curb line of both streets; the porch with the steps on which the boy was playing fronts on Spruce Street. There was no other traffic on B Street at the time and place of the accident, but there is a conflict in the testimony as to whether or not there was a pick-up parked parallel to the curb on the north side of B Street. The physical lay-out in the area of the accident would tend to indicate that there was no obstruction to visibility by the defendant or the deceased boy for a considerable distance before they arrived at the point of impact. During the course of the trial, undisputed testimony disclosed that the deceased boy was born on October 19, 1954, making him exactly eight years, six months and eighteen days old at the time of the accident; that he was in the second grade at school; and that he lived with his parents in Townsend on Spruce Street across from the Masonic Temple in the general area of the accident in question. At the conclusion of plaintiff's case in chief and again at the conclusion of all the evidence, defendant moved for a directed verdict which was denied. Upon settlement of jury instructions the issue of contributory negligence of the part of the deceased boy was removed from the jury's consideration. The court refused all of defendant's offered instructions on the issue of contributory negligence on the part of the deceased boy and gave the jury the following instruction: "You are instructed that the court has determined as a matter of law that the child, James Perry Graham, was incapable of contributory negligence as a matter of law." Appropriate objections were made by defendant to the giving of this instruction and the removal of the issue of contributory negligence from the jury's consideration. The jury returned a verdict in favor of plaintiff in the sum of $15,915.60 and judgment was entered thereon. After defendant's motion for new trial was denied, this appeal followed. The issues presented for review by defendant upon this appeal can be broadly summarized in the following manner: (1) The Court's instruction to the jury that the deceased boy was incapable of contributory negligence as a matter of law and the refusal of the Court to give defendant's offered instructions on contributory negligence. (2) The admissibility of witness Lyons' testimony as to the speed of defendant's car in response to a hypothetical question: (3) Failure of the trial court to instruct the jury on "unavoidable accident"; (4) Refusal of the trial court to instruct the jury on the "sudden emergency" doctrine; and *267 (5) Refusal of the trial court to grant a directed verdict in favor of defendant. In our view the first issue presented for review as set forth above involves two questions: (1) Was the trial court correct in instructing the jury that the deceased boy was incapable of contributory negligence as a matter of law and in refusing defendant's offered instruction on contributory negligence? and (2) if not, does the trial court's action constitute reversible error? We answer both questions in the negative based upon the authorities and reasoning hereafter set forth. At the outset it is to be noted that this is a case of first impression in Montana on the question of the incapacity or incapability of a child seven years of age or older to be contributorily negligent as a matter of law. To date, Montana cases have not distinguished between the capacity or capability of such child to commit contributory negligence and the related question of whether or not a particular child in a given situation was in fact contributorily negligent. However, it is clear that the law relating to contributory negligence of children involves a dual inquiry: (1) The capacity of a particular child in a given case to be contributorily negligence; and (2) the establishment in fact of the particular child's contributory negligence under the circumstances of a given case. Illustrative of cases recognizing these two facets of the inquiry are the following: Patterson v. Cushman (Alaska 1964), 394 P.2d 657, 6 A.L.R.3rd 421; Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448; Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071. Our first inquiry in the instant case is directed at the first of these two considerations. It has long been the law of Montana that a child under seven years of age cannot be contributorily negligent as a matter of law. (Burns v. Eminger, 81 Mont. 79, 261 P. 613; Johnson v. Herring, 89 Mont. 422, 300 P. 535; Gilligan v. City of Butte, 118 Mont. 350, 166 P.2d 797.) The Burns case, supra, decided in 1927, is the leading Montana case enunciating this rule. The basis for this rule, as indicated in Burns, is that a child of such tender years is non sui juris, that is, lacking the capacity to manage his own affairs. Stated another way, a child under seven years of age is conclusively presumed to lack the capacity to manage his own affairs which includes, among other things, the capacity to look out for his own safety. Thus it may be said that Montana law raises a conclusive presumption that a child under seven years of age lacks the capacity to be contributorily negligent. Whatever may be said as to the arbitrary nature of this rule and whatever criticism may be leveled at such a rule in theory, it has been the law of Montana for forty years. With this background, we proceed to a determination of the law in Montana regarding the capacity of an eight and one-half year old boy to be contributorily negligent. Are there are presumptions as to capacity or incapacity in such case? There have been no direct holdings in Montana as to any presumptions as to such capacity or incapacity of a child after he has reached his seventh birthday. The law is in hopeless and irreconcilable conflict in other jurisdictions. At most four states hold that a child eight years of age is conclusively presumed to be incapable of contributory negligence; many jurisdictions hold that there is a prima facie or rebuttable presumption of incapacity in the case of a child eight years of age; a few jurisdictions appear to hold that there is a rebuttable presumption of capacity in an eight year old; but probably the vast majority of states establish no presumption as to capacity or incapacity of an eight year old to be contributorily negligent, but consider it a question of fact in the individual child under the circumstances of the individual case. (See 107 A.L.R. 4 and 77 A.L.R.2d 917, for collection of cases from all jurisdictions.) This latter view is well expressed in David v. West Jersey &amp; S.R. Co., 84 N.J.L. 685, 87 A. 440, involving a boy *268 seven years ten months old struck by a train at a railroad crossing: "There has been a time in the life of every person of mature judgment, as all agree, when he was incapable of exercising the care and judgment necessary to avoid and avert danger, and was non sui juris. There is a time also, when he is in law an adult, and responsible as such. Between these two periods is a transition stage, during which his responsibility depends upon matters of fact. * * * In this transition period he may or may not be guilty of contributory negligence. * * * "* * * And so, in order to determine whether a child in such transition period has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience, and capacity to understand and avoid the danger to which it is eyposed in the actual circumstances and situation under investigation * * *." We feel that the above quotation expresses the better rule for the reasons therein stated. Accordingly we hold that there is no presumption one way or the other as to the capacity of an eight and one-half year old boy to be contributorily negligent. We further hold that such question of capacity is a factual inquiry to be determined with regard to the individual child under the circumstances of the individual case. Such being the law, is the question of capacity of the individual child in a given case to be determined by the judge or by the jury? The same rules apply here that apply to any factual inquiry. Generally speaking, questions of fact are for determination of the jury; it is only in cases where the facts admit of only one interpretation by reasonable men that the judge can decide the question as a matter of law. The case of Bush v. New Jersey &amp; New York Transit Company, 30 N.J. 345, 153 A.2d 28, 77 A.L.R.2d 908, expresses the principle succinctly in the following fashion: "The question of capacity or incapacity is simply a factual inquiry and is whether the particular child has the capacity to be contributorily negligent, i.e., act unreasonably under the circumstances, in light of the age, training, judgment, and other relevant factors which apply to the particular child. And the test to be applied is that applicable to any other question of fact. The trial judge is the first to view the matter and if he is of the opinion that the child, after a consideration of all of the relevant factors, does not have the capacity to be contributorily negligent and that reasonable men could not disagree, he then decides the question of capacity as a matter of law. But if the trial judge feels that reasonable men can disagree on the question of incapacity even though he himself would decide for or against incapacity, then he must allow the jury to decide the question of incapacity. * * *" In this connection also see Mann v. Fairbourn, 12 Utah 2d 342, 366 P.2d 603. Applying this test to the instant case, can it be said that reasonable men could not disagree that this eight and one-half year old boy lacked the capacity to be contributorily negligent? We think not. There was little direct evidence of the capacity of this particular boy beyond his age and grade in school. The evidence did show that he could ride a bicycle and that he lived in the immediate neighborhood where the accident occurred. The danger involved in this case was from ordinary automobile traffic on a city street in the immediate neighborhood where he lived. We hold that under these circumstances reasonable men could differ as to the boy's capacity to be contributorily negligent. What the trial judge did here in arriving at his conclusion that the deceased boy was incapable of contributory negligence as a matter of law was to go beyond the evidence as indicated above. He drew inferences as to the capacity of the deceased boy to be contributorily negligent from observation of his brother who testified as a witness at the trial and from testimony *269 as to their similarities. Evidence introduced at the trial showed that the deceased boy was eight and one-half years old at the time of the accident, that he and his brother (aged six and one-half at the time of the accident) were about the same size, that they looked alike and that they were quite often taken as twins by others. At the trial the judge questioned the brother (then approximately the same age as the deceased boy at the time of his death) as to the meaning and significance of a witnesses' oath and observed his demeanor, manner of testifying and ability to recollect and answer questions concerning the accident put to him by counsel. No direct testimony was introduced at the trial concerning the deceased boy's intelligence, experience or capacity to understand and avoid the hazard and danger involved in the case. On this basis the trial judge ruled that the deceased boy was incapable of contributory negligence as a matter of law. We hold that this was error for two reasons: (1) From the initial inference that the witness lacked the capacity to be contributorily negligent was drawn the second inference that the deceased boy likewise lacked the capacity to be contributorily negligent because of certain points of similarity with the witness; one inference cannot be based on another inference to prove a given fact. (Fisher v. Butte Electric Ry. Co., 72 Mont. 594, 235 P. 330; Monforton v. Northern Pacific Ry., 138 Mont. 191, 355 P.2d 501.) (2) Conflicting inferences can be drawn as to the deceased boy's knowledge and appreciation of the danger involved in the instant case. We hold then, that under the facts and circumstances of this case the question of the capacity of the deceased boy to be contributorily negligent should not have been determined by the trial judge as a matter of law. But was the action of the court in instructing the jury that the deceased boy was incapable of contributory negligence, and in refusing defendant's offered instruction on contributory negligence reversible error? We think not in the instant case. Error not affecting the substantial rights of the parties is harmless error; it is only error that affects the substantial rights of the parties that constitutes prejudicial error requiring reversal. (Rule 61, M.R.Civ.P., Montana Livestock &amp; Loan Co. v. Stewart, 58 Mont. 221, 190 P. 985; Hill v. Chappel Bros., 97 Mont. 305, 33 P.2d 819.) The error involved here is not reversible error simply because there was no substantial evidence of contributory negligence in fact on the part of the deceased boy under the circumstances of the instant case; hence, the question of contributory negligence on the part of the deceased boy should not have been submitted to the jury irrespective of the question of capacity. It is obvious that if the boy were riding his bicycle properly down the street in his own lane of travel and was struck from behind by the oncoming car of defendant, there is no basis for a finding of contributory negligence. Thus, it is necessary in the instant case for the defendant to show that such was not the case but on the contrary that the boy crossed the north sidewalk of B street, the adjacent curb, the west end lane of traffic, and into the eastbound lane of traffic immediately in front of defendant's automobile. All evidence that this latter situation occurred emanates directly from the mouth of defendant and is contradictory in itself. Immediately following the accident a Mrs. Alley, who lived nearby and who heard the accident but did not see it, rushed out of her house and into the street. She testified that defendant then told her in substance that the boy was on the sidewalk on the Masonic Hall side of the street and "he ran across from the sidewalk right in front of my car." Defendant, who had testified only by deposition at the trial, had this to say: "Q. Have you any idea from what direction the boy came? A. This direction (pointing, placing arrow on exhibit [attached to deposition]). *270 "Q. He was going on a slant across there? A. If he had come directly in front of me I would have seen him. "Q. You do not remember? A. I saw something come in front of my car toward this side of my car (pointing)." Emphasis supplied. Defendant's own statements are self-contradictory. In her deposition she stated that she did not actually see the boy until he was underneath her car but just saw a "blur" momentarily before impact. She also stated in her deposition that she recalled seeing no boys near the Masonic Temple before the accident, and that she didn't believe there was a sidewalk on the Masonic Temple side of B Street. She also told the investigating highway patrolman who questioned her, the day following the accident that "she just didn't see the boy; didn't know what happened; didn't see him." The following testimony of the investigating highway patrolman emphasizes defendant's version of events: "Q. She told you she never did see the boy beforehand, A. (Nodded head up and down.) "Q. Is that correct? You just nodded your head? A. Yes. "Q. Yes, and that she didn't see him until she saw him under the car? A. Yes." Substantial credible evidence sufficient to warrant submission of the issue of contributory negligence to the jury is governed by the same rules that are used in determining the sufficiency of the evidence to support a verdict on that issue. Substantial credible evidence in that regard simply means such evidence as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes the verdict on that issue; if all reasonable men must conclude that the evidence does not establish the verdict on that issue, then it is not substantial evidence. Morton v. Mooney, 97 Mont. 1, 33 P.2d 262; Adami v. Murphy, 118 Mont. 172, 164 P.2d 150; Sands v. Superior Buildings Co., 136 Mont. 531, 349 P.2d 314. A corollary of this rule is that whenever the surrounding circumstances make the story of a witness highly improbable or incredible, or whenever the testimony is inherently impossible, such evidence is not substantial and reversal should occur. Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 198 P. 141; Sullivan v. Northern Pacific Ry. Co., 109 Mont. 93, 94 P.2d 651. The only evidence as to the path of travel of the boy on his bicycle to the place where the accident occurred is defendant's own testimony. Her testimony as to this path of travel is so inherently incredible as to be unworthy of belief in that she not only testified that she wasn't sure at first what she had hit but also she stated that the first time she saw the boy was underneath her car following the accident! Under such circumstances, how can she possibly know that the boy came across the sidewalk, curb, westbound lane of traffic and into the eastbound lane in front of her car where he was struck? Perhaps by speculation, conjecture, inference, or guess, none of which constitutes substantial credible evidence of the fact. See 32A C.J.S. Evidence § 1042. There is a total absence of any substantial credible evidence as to an improper or dangerous path of travel on which to predicate contributory negligence. The next issue presented for review is the admission, over objection, of witness Lyons' opinion testimony as to the speed of defendant's automobile. Defendant argues that such testimony was inadmissible for two reasons: (1) the witness was not competent to express an opinion as to speed, and (2) the hypothetical question on speed assumed facts not in evidence. In our view the witness was clearly competent and qualified to give expert opinion evidence as to the speed of defendant's automobile. He was an ex-highway patrolman of over twenty years experience in investigating automobile accidents, including the determination of speed of automobiles from skid marks and surrounding circumstances, and had been schooled in the *271 use of graphs and charts used by the National Safety Council and the Montana Highway Patrol in connection with determining speed from skid marks. His training, experience and familiarity with accident investigations, engineering charts relating to determination of speed from skid marks, and methods used to determine speed of moving automobiles from physical evidence were such as to qualify him as an "expert," i.e., a person skilled on a question of science (determination of speed from skid marks on a road surface). The opinion of a witness on a material question of science, art, or trade in which he is skilled is admissible in evidence. (Section 93-401-27, R.C.M. 1947.) The determination of the qualification of a skilled or expert witness is a matter largely within the discretion of the trial judge, and in the absence of a showing of abuse, ordinarily will not be disturbed (Nesbitt v. City of Butte, 118 Mont. 84, 163 P.2d 251; Krohmer v. Dahl, 145 Mont. 491, 402 P.2d 979). The fact that the witness had retired from the highway patrol some six years previously, that he had first heard of the accident in question approximately two weeks before trial through plaintiff's counsel, that he didn't measure any drag factor or coefficient of friction on the particular road surface involved, and that as a highway patrolman he would not be permitted to testify in a case where his investigation was made a year and a half after the accident are facts affecting the weight rather than the admissibility of his testimony. They relate to the degree of his qualifications rather than absence of qualifications; this affects weight and not admissibility of evidence. (Nesbitt v. City of Butte, supra.) Defendant cites O'Brien v. Great Northern Ry. Co., 145 Mont. 13, 400 P.2d 634, as rendering the testimony in the instant case incompetent. That case is not in point here. In the O'Brien case the witness was a highway patrolman who testified there was no way to determine speed from the skid marks on the highway and that he was not familiar with stopping distances in terms of speed. In the instant case the former highway patrolman's testimony is substantially the reverse. Defendant further contends that the opinion testimony of witness Lyons as to the speed of defendant's automobile was elicited in response to a hypothetical question which assumed facts, some of which were not then in evidence and some of which were never in evidence. While it is true that hypothetical questions must be based upon evidence before the court at the time such questions are asked (Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044, 67 A.L.R.2d 1; Carman v. Montana Cent. Ry. Co., 32 Mont. 137, 79 P. 690; State v. Riggs, 56 Mont. 393, 185 P. 165), subsequent proof of such assumed facts removes the original objectionability (Risken v. Northern Pac. Ry. Co., 137 Mont. 57, 350 P.2d 831). Defendant further argues that two facts assumed in the hypothetical question were never proven: (1) "the dirt and gravel road such as you find on B Street near the Masonic Temple," and (2) that a locked-wheel skid was involved. Suffice it to say that as to the first of these arguments, the assumed fact contended by defendant is a matter of semantics rather than substance. The phrase "such as you find" in the context of the question is merely a figure of speech equivalent to "such as one finds" or "such as is found." The witness' testimony as to his general familiarity with the character and surface of the roadway in question renders unnecessary a personal inspection immediately following the accident as a prerequisite to answering the hypothetical question. As to the second argument that there never was an evidence of a locked-wheel skid as assumed by the hypothetical question, it is true that no one directly testified to this. But there is testimony that the brakes on defendant's car were power brakes in very good condition; that in most vehicles with everything functioning properly, all four wheels lock at the same time and the skid marks start; and that there were measured skid marks of defendant's car for a fixed distance to the point of impact. *272 This is sufficient basis for an inference that a locked-wheel skid occurred in the instant case and justifies the inclusion of a locked-wheel skid as an assumed fact in the hypothetical question. The third issue presented for review is the failure of the trial court to instruct the jury on "unavoidable accident." The propriety of such an instruction in a given case has given courts throughout the United States no end of difficulty, and the law as a whole in this country is in irreconcilable conflict. (See 65 A.L.R.2d 20.) Probably a majority of jurisdictions still hold that an unavoidable accident instruction is proper in certain types of motor vehicle cases but experience great difficulty in formulating a clear, workable and just rule for determining what constitutes a proper case for such an instruction. The distinct trend appears to be in the direction of extremely restricted use of this instruction if not outright disapproval. The law of Montana on the use of an "unavoidable accident" instruction is set forth in five decisions of this Court, Tanner v. Smith (1934), 97 Mont. 229, 33 P.2d 547; Jewett v. Gleason (1937), 104 Mont. 63, 65 P.2d 3; Bogovich v. Scandrett (1945), 117 Mont. 341, 158 P.2d 637; Rodoni v. Hoskin (1960), 138 Mont. 164, 355 P.2d 296; Leach v. Great Northern Ry Co. (1961), 139 Mont. 84, 360 P.2d 94. The substance of Montana law on the use of an "unavoidable accident" instruction is that such an instruction may be proper in a limited class of cases if there is a sufficient evidentiary foundation to justify an inference that an unavoidable accident occurred (Rodoni v. Hoskin, supra) but that the necessary evidentiary foundation is lacking if there is evidence from which the jury could infer negligence on the part of defendant (Leach v. Great Northern Ry. Co., supra). This court has never approved the use of an "unavoidable accident" instruction in any case that has come before it, twice holding it reversible error to give it (Bogovich v. Scandrett, Leach v. Great Northern Ry. Co., supra) and three times upholding the trial court's refusal to so instruct the jury. (Tanner v. Smith, supra; Jewett v. Gleason, supra; Rodoni v. Hoskin, supra.) Since this court last examined this question, several significant events have occurred that require a re-examination of the use of "unavoidable accident" instructions: (1) A series of decisions have been handed down by the highest courts of other states flatly holding that an unavoidable accident instruction in any negligence case is error; (2) the Montana Rules of Civil Procedure, patterned after the Federal Rules, have been placed in operation; and (3) the Montana Jury Instruction Guide of recommended jury instructions has been formulated and published by a committee of trial judges in Montana and is in general use throughout the state. Illustrative of a recent series of decisions by the highest courts of other states holding that the use of an unavoidable accident instruction in any case is error is Fenton v. Aleshire, (1964), 238 Or. 24, 393 P.2d 217, 222. In this case the Supreme Court of Oregon expressed its reasoning in the following manner: "In the modern law of negligence the doctrine of `unavoidable accident,' * * * is an anomaly. By definition at least by the definition adopted by this court it has no place as a separate and independent element in an action based on negligence. * * * `the Restatement of Torts does not treat unavoidable accident as an entity of the law.' * * * No instruction on unavoidable accident is included in the Uniform Jury Instruction in negligence cases * * *. In practical effect, when included in the charge of the court to the jury, it is a lagniappe to the defendant not only because it is an added `you-should-find-for-the-defendant' type of instruction, but because it may be misunderstood by the jury as constituting some sort of separate defense." This opinion then concludes: "We have re-examined the question and have reached the conclusion that the instruction on unavoidable *273 accident should not be given in any case." Another recent illustrative case to the same effect is Lewis v. Buckskin Joe's, Inc., (1964), 156 Colo. 46, 396 P.2d 933. Therein the Supreme Court of Colorado cited with approval the following excerpt from the decision of the Supreme Court of California in Butigan v. Yellow Cab Co., 49 Cal. 2d 652, 320 P.2d 500, 65 A.L.R.2d 1: "In the modern negligence action the plaintiff must prove that the injury complained of was proximately caused by the defendant's negligence, and the defendant under a general denial may show any circumstance which militates against his negligence or its causal effect. The so-called defense of inevitable accident is nothing more than a denial by the defendant of the negligence or a contention that his negligence, if any, was not the proximate cause of the injury. * * * The statement in the quoted instruction on `unavoidable or inevitable accident' that these terms `simply denote an accident that occurred without having been proximately caused by negligence' informs the jury that the question of unavoidability or inevitability of an accident arises only where the plaintiff fails to sustain his burden of proving that the defendant's negligence caused the accident. Since the ordinary instruction on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in order to recover, the instruction on unavoidable accident serves no useful purpose." The Colorado Supreme Court concluded with these words: "We conclude that from and after announcement of this opinion an instruction on unavoidable accident should never be given; * * * and that to now instruct on unavoidable accident is error. We expressly overrule previous pronouncements of this court to the contrary." Additionally it is significant that the Montana Rules of Civil Procedure have been in effect since January 1, 1962, subsequent to the last pronouncement of this Court on unavoidable accident instructions. Under these Rules unavoidable accident is not a defense that must be pleaded affirmatively (Rule 8(c), M.R.Civ.P.) but would appear to be covered under a general denial of negligence (Rule 8(b), M.R.Civ.P.). Accordingly, it is apparent that these Rules do not contemplate consideration of unavoidable accident as a separate entity or defense apart from denial of negligence. It is also significant that the Montana Jury Instruction Guide now in general use throughout the state does not contain an instruction on "unavoidable accident," but on the contrary recommends no proposed instruction. The committee therein states the matter in this fashion: "In view of the limited number of situations in which an instruction on unavoidable accident is proper, and the possibility of reversal [sic] error, it is recommended that the matter be left to the argument of counsel." In addition to the foregoing reasons, it appears to us that the primary question before the jury in any negligence case is whether the defendant was negligent or not proximately causing the accident and this is the hurdle that plaintiff must surmount if he is to prevail. The giving of an instruction on "unavoidable accident" unnecessarily injects a "straw issue" in the case, diverts the attention of the jury from the primary issue of negligence, and necessarily creates the impression in the minds of the jurors of a second hurdle that plaintiff must overcome if he is to prevail. It is difficult to see how such an instruction adds anything but confusion in the minds of the jurors in understanding the principles of negligence. The particular vice of an unavoidable accident instruction in any case is that it tends to mislead the jury by creating a spurious additional issue in the case when in fact the sole issue is the presence or absence of negligence proximately causing the accident. We have re-examined the law and have concluded it is time to part company with a principle originated over 100 years *274 ago under a system of ancient pleading and practice recognizing unavoidable accident as a separate entity and defense in the law of negligence. Accordingly, from this time on we hold that the giving of an instruction on "unavoidable accident" in any negligence case is error. We specifically overrule any previous pronouncements of this court to the contrary. This ruling herein is prospective and not retrospective in application as this change should properly affect only future cases. (See Montana Horse Products Co. v. Great Northern Ry. Co., 91 Mont. 194, 7 P.2d 919; Sunburst Oil &amp; Refining Co. v. Great Northern Ry. Co., 91 Mont. 216, 7 P.2d 927; State ex rel. Mueller v. Todd, 117 Mont. 80, 158 P.2d 299; Continental Supply Co. v. Abell, 95 Mont. 148, 24 P.2d 133; State v. Simanton, 100 Mont. 292, 49 P.2d 981; Hayward v. Richardson Const. Co., 136 Mont. 241, 347 P.2d 475, 77 A.L.R.2d 1144.) Defendant further presents for review the refusal of the trial judge to give her offered instruction on defendant's emergency actions. Without extended discussion it is apparent that Court's Instruction No. 11 was an adequate instruction on the emergency doctrine as applied to the facts of this case, and failure to give defendant's offered instruction on the same subject is not error. The only substantial difference between the two instructions was that the Court's instruction covered only actual emergencies, while defendant's offered instruction also included apparent emergencies. As an actual emergency was involved in this case, failure to instruct on apparent emergency is immaterial. Finally, defendant presents for review the refusal of the trial court to grant a directed verdict in favor of defendant both at the conclusion of plaintiff's case in chief and after all evidence was in. Defendant argues that there was no evidence on which a finding that defendant was negligent could be based. We disagree. Suffice it to say without extended discussion that there is sufficient evidence on which a jury could base a finding of negligence on the part of defendant in several particulars. For the foregoing reasons, the judgment of the district court is affirmed. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES ADAIR, CASTLES and JOHN CONWAY HARRISON concur.

November 30, 1967

a0227b62-764b-488d-bc12-68844f66bbb7

STATE v SCRIVANI HELEHAN

N/A

13554

Montana

Montana Supreme Court

No. 13554 IN THE SUPREllE COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, ACTING BY AND THROUGH THE DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA, Plaintiff and Appellant, T I l O r 4 A S J. HELEBAN, Defendant and Respondent. Appeal from: District Court of the Second Judicial District Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Daniel J. Sullivan argued, Helena, Montana For Respondent: Stimatz and Engel, Butte, Montana Joseph C. Engel argued, Butte, Montana & ! & 8 1177 Filed. : G . . - Submitted: January 11, 1977 Mr. Justice Frank I . Haswell delivered the Opinion of the Court. In a highway condemnation action, the district court of Silver Bow County entered judgment for the property owner in the amount of $87,742.04. The State of Montana appeals from the judgment and denial of its motion to alter or amend the judgment . The action was originally filed by the State in 1965 against multiple defendants owning fractional interests in the property sought to be condemned. By 1976 the only remaining defendant was Thomas Helehan who owned a 1/8 interest in the property. Commissioners were appointed to determine the value of Helehan's interest in the property. On June 15, 1976, the com- missioners' report was filed with the clerk of the district court and copies were mailed to the respective attorneys. A copy of the commissioners' report was received by the State on June 16. On July 16 the State mailed its notice of appeal from the commissioners' award to the clerk of court and to the attor- ney for the property owners. On July 19 judgment was entered on the commissioners' report which included the amount of the award, survey costs, appraisal fees, interest, attorney fees and costs. On the same date the State's notice of appeal from the commission- ers' award was received by the clerk of the district court and filed. Thereafter the State moved to alter or amend the judgment which, in effect, was a motion to vacate the judgment. Follow- ing hearing, the district court denied this motion and entered findings of fact, conclusions of law and an opinion. The State then filed its notice of appeal from the judgment and order of the district court denying its motion. The gist of the district court's decision was that the State's notice of appeal was filed too late. The district court held the controlling statute, section 93-9915, R.C.M. 1947, required the notice of appeal to be served on the property owner's attorney and filed with the clerk of court within 30 - days after service of notice of the commissioners' award on the State's attorney and filing with the clerk of court. The dis- trict court held that such service was completed on June 15 and the time for appeal expired on July 15 at 5:00 p.m. The controlling issue on appeal is the timeliness of the State's appeal from the commissioners' award. The statutory procedure (section 93-9915) for an appeal from a commissioners' award provides in pertinent part: "An appeal from any assessment made by the comrnis- sioners may be taken and prosecuted in the court where the report of said commissioners is filed by any party interested. Such appeal must be taken within the period of thirty (30) days after the service upon appellant of the notice of the filing of the award by the service of notice of such appeal upon the opposing party or his attorney in such proceedings and the filing of the same in the dis- trict court wherein the action is pending * * *." Here the commissioners' report was served on the State on June 15. Service by mail is complete upon mailing. Rule 5(b), M.R.Civ.P. See Davis v. Trobough, 139 Mont. 322, 363 P.2d 727 and Herdegen v. Oxarart, 141 Mont. 464, 378 P.2d 655, decided under section 93-8504, R.C.M. 1947, the statutory predecessor of Rules 5 and 6, M.R.Civ.P. However, service did not become effective until June 18 for the purpose of calculating the 30 day appeal period. Rule 6 (e) , M.R.Civ.P., states: "(e) Additional Time After Service by Mail. When- ever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. " In accord: Lewistown Propane Co. v. Utility Builders Inc., - 3 - Mont. , 552 P.2d 1 1 0 0 , 33 St.Rep. 745. Thus, t h e 30 day appeal period would normally end on J u l y 18. But here J u l y 18, 1976, f e l l on a Sunday s o t h e appeal period d i d n o t e x p i r e u n t i l t h e end of t h e next day, J u l y 19. Rule 6 (a) , M.R.Civ.P. provides i n r e l e v a n t p a r t : " ( a ) Computation. I n computing any period of t i m e prescribed o r allowed * * * by any a p p l i c a b l e s t a t u t e , t h e day of t h e a c t * * * a f t e r which t h e designated period of t i m e begins t o run is not t o be included. The l a s t day of t h e period s o com- puted is t o be included, u n l e s s it i s a Saturday, Sunday o r a l e g a l holiday, i n which event t h e period runs u n t i l t h e end of t h e next day which is n e i t h e r a Saturday, Sunday nor a holiday. * * *" I n accord: Lewistown Propane Co. v. U t i l i t y Builders Inc., supra; Grey v. S i l v e r B o w County, 1 4 9 Mont. 213, 425 P.2d 819. Hence t h e S t a t e ' s n o t i c e of appeal w a s timely f i l e d on Monday, J u l y 19. The judgment of t h e d i s t r i c t c o u r t i s vacated and t h i s cause remanded t o t h e d i s t r i c t c o u r t of S i l v e r Bow County f o r t r i a l on t h e i s s u e of damages.

January 28, 1977

4271919e-88d1-4cae-a246-0efa6255c1ff

DEPT OF REVENUE v SOO LINES INC

N/A

13272

Montana

Montana Supreme Court

No. 13272 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Plaintiff and Appellant, SO0 LINES, INC., Defendant and Respondent. Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, ~istrict Judge Counsel of Record: For Appellant: R. Bruce McGinnis argued, Helena, Montana Robert A. Poore argued, Butte, Montana For Respondent: Hughes, Bennett and Cain, Helena, Montana George T. Bennett argued, Helena, Montana Submitted: January 17, 1977 - Filed: m 8 E n d M r . J u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court. This appeal from t h e d i s t r i c t c o u r t , Lewis and Clark County, involves t h e v a l i d i t y of t h e Montana Department of Revenue's method of assessment of t a x e s on t h e Montana property of an i n t e r s t a t e r a i l r o a d . The s t a t e t a x appeal board (STAB) and t h e d i s t r i c t c o u r t held t h e method of assessment used by t h e Department of Revenue (DOR) i n v a l i d , and assessed respon- d e n t Soo Lines, Inc. Montana property a t i t s salvage value. W e reverse. Soo Lines i s a Minnesota corporation engaged i n r a i l r o a d operations i n seven mid-western s t a t e s , including Montana. I n Montana, Soo Lines owns and operates a spur l i n e which c o n s i s t s of approximately 60.5 m i l e s of t r a c k , together with supporting equipment and f a c i l i t i e s . This spur l i n e known a s t h e Flaxton Branch, e n t e r s Montana from t h e e a s t and runs w e s t through Sheridan and Daniels Counties. I n l i g h t of t h e intercounty na- t u r e of t h e Soo Lines' Montana operation DOR d i r e c t l y assessed its Montana property. The method of assessment used by DOR i s t h e i s s u e on appeal. The general method of assessment used by DOR t o a s s e s s Soo Lines, a s well a s a l l o t h e r intercounty r a i l r o a d s i n Montana, i s t h e u n i t a r y method. The u n i t a r y method of assessment is de- signed t o c a l c u l a t e t h e value of t h e r a i l r o a d ' s operating property i n Montana on t h e b a s i s of its value a s a p a r t of t h e r a i l r o a d ' s t o t a l i n t e r s t a t e system. DOR d e r i v e s its a u t h o r i t y t o d i r e c t l y assess a l l i n t e r - county r a i l r o a d s from T i t l e 84, Chapter 8 , R.C.M. 1947. Pursuant t o s e c t i o n 84-801, R.C.M. 1947, Soo Lines furnished t o DOR its annual statement of earnings, c o s t s , s t o c k , and debt information. Using t h i s annual statement, DOR assessed t h e r a i l r o a d ' s property by use of t h e u n i t a r y method whereby a three-factor formula of stock and debt, cost of plant, and capitalization of income was employed. Each of these three factors was used to deter- mine a total system value: Indicator of Value Total Railroad System Value Stock and debt $143,232,249 Plant at cost $269,491,266 Capitalized net income $176,383,139 The next step was to formulate a composite of a total system value by "weighting" each of the separate indicators of value by percentages which total 100%. The weighting system is based on the type of industry and general economic conditions. For 1974 the weighted factors were: 30% for stock and debt, 35% for plant, and 35% for capitalized income. By weighting the foregoing indicators at 30%) 35%, and 35% respectively, a total system value of $199,025,716 was obtained. The next step in the assessment procedure involved allo- cation of a proper portion of this system value to Montana. Using the information supplied to DOR by Soo Lines in its annual statement, DOR compared Montana-vs-system gross earnings; Montana- vs-system revenue traffic units; Montana-vs-system car and loco- motive mileages; and Montana-vs-system depreciated investment. Using a straight average of all four indicators, DOR determined that Montana made an economic contribution of .2% (.002) to the total system values. The weighted system value of $199,025,716 was then factored by the respresentative Montana portion of .2% (.002) and an allocation of values to the Montana operating properties of $398,051 was obtained. That figure was equalized at 40% to obtain an assessed value of Soo Lines' Montana operating prop- erties of $159,221. Soo Lines objected to the foregoing assessment on the grounds it w a s u n r e a l i s t i c i n view of t h e f a c t t h a t such a small p o r t i o n of Soo Lines' p r o p e r t y and business a c t i v i t y was l o c a t e d i n Montana. Soo Lines f u r t h e r complained t h e u s e of t h e u n i t a r y method of assessment r e s u l t e d i n Montana t a x i n g t h e r a i l r o a d ' s o u t - o f - s t a t e p r o p e r t i e s . The r a i l r o a d suggested t h e following changes be made i n D O R ' s assessment scheme: (1) Cost of p l a n t as an i n d i c a t o r of v a l u e should be t o t a l l y eliminated and only s t o c k and d e b t and c a p i t a l i z e d i n - come used. ( 2 ) C a p i t a l i z e d income should be averaged over a f i v e year period r a t h e r than t h e two year period c u r r e n t l y used and f u r t h e r t h e income be c a p i t a l i z e d a t 10% r a t h e r than t h e c u r r e n t 8.25%. ( 3 ) Stock and d e b t and c a p i t a l i z e d income should be given equal weight when used a s i n d i c a t o r s of t o t a l system value. ( 4 ) The apportionment r a t i o should be determined on a f i v e year comparison of Montana-vs-system, r a t h e r t h a n t h e cur- r e n t one year comparison. (5) I n t h e u s e of s t o c k and d e b t a s an i n d i c a t o r of v a l u e , t h e s t o c k should be valued on a f i v e year market average r a t h e r than t h e c u r r e n t y e a r ' s v a l u e and nonoperating p r o p e r t y should be s u b t r a c t e d a t its market v a l u e r a t h e r than book value. A hearing before DOR was held a t t h e r a i l r o a d ' s r e q u e s t and re- s u l t e d i n r e f u s a l t o a l t e r t h e assessment. Soo Lines appealed t o t h e s t a t e t a x appeal board (STAB). STAB reversed t h e DOR assessment and remanded t h e case f o r reassessment. STAB found e r r o r i n D O R ' s f a i l u r e t o : (1) deduct from t h e s t o c k and d e b t v a l u e t h e market v a l u e of nonoperating p r o p e r t i e s r a t h e r t h a n t h e book v a l u e , ( 2 ) p r o p e r l y recognize p l a n t obsolescence, and ( 3 ) recognize t h e s p e c i a l c h a r a c t e r i s t i c s of t h e Flaxton Branch, and thereby a l l o c a t e . 2 % (.002) of Soo L i n e s ' system v a l u e t o Montana. The u n i t a r y method of assessment w a s ordered modified t o a t t a i n t h e foreordained r e s u l t of salvage value n o t t o exceed $2,000 per mile. DOR then sought review of t h e STAB decision i n t h e d i s t r i c t c o u r t , and asked t h e c o u r t ' s permission t o introduce a d d i t i o n a l evidence on t h e amount of revenue t h a t o r i g i n a t e d on t h e Flaxton Branch. P r i o r t o t h e d i s t r i c t c o u r t hearing, Soo Lines f i l e d a s e r i e s of admissions of f a c t s which s t a t e d t h e amount of wheat i n t e r m s of weight t h a t had o r i g i n a t e d on t h e Flaxton Branch. The d i s t r i c t c o u r t refused t o allow DOR t o pro- duce t h e a d d i t i o n a l evidence and ordered t h e assessment of Soo Lines' Montana property a t a salvage value of $2,000 per m i l e o r $121,060. DOR appealed t o t h i s Court. The i s s u e on appeal i s a determination of t h e proper method of valuation of Soo Lines' Montana operating p r o p e r t i e s . The use of t h e t h r e e - f a c t o r , u n i t a r y method of assessment of t h e l o c a l property of an i n t e r s t a t e corporation is hardly novel i n t h i s j u r i s d i c t i o n . This method has been approved by t h i s Court repeatedly and a s r e c e n t l y as December 29, 1976. Depart- ment of Revenue v. P a c i f i c Power and Light Co'., Mont . I P.2d , 33 St.Rep. 1277; Western A i r l i n e s , Inc. v. Michunovich, 149 Mont. 347, 350, 351, 428 P.2d 3; Yellowstone Pipe Line Co. v. S t a t e Board of Equalization, 138 Mont. 603, 611, The general purpose of t h e u n i t a r y method of assessment i s c l e a r l y s t a t e d i n Western A i r l i n e s , Inc.: " * * * The ' u n i t a r y ' method r e p r e s e n t s an attempt t o r e a l i z e a f a i r assessment value on property which i s n o t h a b i t u a l l y located i n any given state, b u t which i s used extensively i n i n t e r s t a t e commerce. The underlying philosophy of t h e ' u n i t a r y ' method is t h a t property so used forms a p a r t of an organic system and may be assessed i n t e r m s of t h e economic c o n t r i b u t i o n which each component makes t o t h e e n t i r e system. This approach has been f i r m l y e s t a b l i s h e d i n a s e r i e s of d e c i s i o n s of t h e Supreme Court of t h e United S t a t e s . * * *" The r a i l r o a d urges t h i s Court t o hold t h e salvage value of t h e r a i l s , t i e s , and roadbed i s t h e appropriate measure of t h e value of t h e Flaxton Branch. Soo Lines admits t h e e f f e c t of its request would be t o c r e a t e an exception t o t h e e s t a b l i s h e d s t a t u - t o r y scheme i n regard t o t h e assessment of intercounty r a i l r o a d property. This request is j u s t i f i e d , it claims, by t h e s p e c i a l c h a r a c t e r i s t i c s of t h e Flaxton Branch. This contention i s without m e r i t . There i s no evidence t h e Flaxton Branch i s abandoned o r scheduled t o be abandoned i n t h e near f u t u r e . I n f a c t i n t h e year i n question t h e shipment of 141,707 tons of wheat o r i g i n a t e d on t h e branch l i n e . The Union P a c i f i c R a i l r o a d ' s operation i n Montana i s s i m i l a r t o t h a t of t h e Soo Lines; i t s only Montana property i s a spur l i n e . The u n i t a r y method of assessment i s used t h e r e a s w e l l . It i s c l e a r from Montana law t h a t members of a c l a s s must be given t h e s a m e t a x treatment. P e t e r K i e w i t Sons' Co. v. S t a t e Board of Equali- z a t i o n , 161 Mont. 140, 505 P.2d 102. I f w e were t o value its property a s Soo Lines would have us do, w e would be completely eliminating t h e value of t h e rail- roads' f r a n c h i s e and r o l l i n g stock, i n d i r e c t c o n f l i c t with sec- t i o n 84-802, R.C.M. 1947, which provides i n p e r t i n e n t p a r t : "The s t a t e department of revenue must a s s e s s t h e f r a n c h i s e , roadway, roadbed, rails, and - - r o l l i n g stock of a l l r a i l r o a d s operated i n more than one county." (Emphasis added.) The cases i n t e r p r e t i n g t h e s t a t u t e s dealing with t h e tax- a t i o n of i n t e r s t a t e e n t i t i e s demonstrate t h e reason t h a t t h e u n i t a r y method i s t h e most e q u i t a b l e method of a s s e s s i n g i n t e r - county r a i l r o a d s . This Court s t a t e d i n Western A i r l i n e s , Inc.: "Thus t h e ' u n i t a r y ' method determines not only t h e appropriate share of t h e e n t i r e e n t e r p r i s e which may be taxed by each s t a t e b u t a l s o determines t h e 'enhanced value' a t t r i b u t a b l e t o t h e equipment used by v i r t u e of i t s being a component p a r t of t h e system. The ' u n i t a r y ' method assumes t h a t t h e value of t h e e n t i r e system, as a going concern, i s somewhat greater than the total fair market value of its equipment." A similar statement is found in Yellowstone Pipe Line Co.: " * * * Where property is part of a continuous system which extends through many taxing districts, the proper way to find the true cash value of any part of this property requires that the system as a unit be evaluated. The rationale of this theory is that, where a system is involved, the sum of the value of the parts of the system does not truly represent the total value thereof, and therefore, in order to get a true reflection of the economic value, the system as a whole must be valued as a unit. " In summary, the unitary method of assessment is an equitable means to value the local property of an interstate entity. This method should be applied in the instant case for these reasons: (1) Soo Lines' rolling stock has a taxable value. The kind and quantity present in the state at any given time is not constant and therefore impossible to tax equitably by the method suggested by Soo Lines. (2) The franchise has a taxable value which is not included in salvage value. (3) The value of the Flaxton Branch to the Soo Lines' interstate system is greater than the salvage value of its compon- ents. We have carefully examined other issues assigned for review and find them to be without merit. We order the assessment of the DOR be reinstated with one change. In the computation of the stock and debt indicator of value, the deduction for nonoperating property should be expressed in fair market values rather than book values. This would change the total weighted system value from $199,025,716 as originally calculated to $196,036,976. The .2% (.002) allocated to the Montana segment would then become $392,073.95 and when equalized at 40% would yield an assessed value of $156,830 rather than Judgment is entered accordingly. Justice

February 8, 1977

f7bf4b5b-d4dc-409e-894e-3150424b971f

MYERS v 4 B S RESTAURANT INC

N/A

13501

Montana

Montana Supreme Court

IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 EARL R. MYERS, Claimant and Respondent, 4 B'S RESTAURANT, INC., Employer, and GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Richard J. Andriolo argued, Bozeman, Montana For Respondent: Dennett and Bennett, Bozeman, Montana Lyman H. Bennett, Jr. argued and Lyman H. Bennett, I11 argued, Bozeman, Montana Submitted: March 2, 1977 Decided: MAR 1 8 1 9 n . Filed: MAR 1 9 1 9 T Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Employer's Plan I1 insurer appeals from a Workers' Compensation Court award to claimant of permanent total dis- ability benefits, costs and attorney's fees. During the pendency of this appeal, claimant died on . . December 14, 1976. h ~ ~ f l l ~ y ~ It is conceded that appellant insurer paid claimant all benefits to which he was entitled up to the time of his death. As compen- sation benefits terminated upon claimant's death (section 92- 608, R.C.M. 1947), appellant's first three issues on appeal relating to the duration and maximum amount of compensation payable are no longer relevant. The only remaining issue is whether the award of attor- ney's fees is permissible in this case. The controlling statute at the time of claimant's acci- dent, section 92-616, R.C.M. 1947, provided: "Costs and attorneys' fees payable on denial of claim later found compensable. In the event the insurer denies the claim for compensation or terminates compensation benefits, and the claim is later adjudged compensable, by the division or on appeal, the insurer shall pay reasonable costs and attorneys' fees as established by the division. However, under rules adopted by the division and in the discretion of the division, an insurer may suspend compensation payments for not more than thirty (30) days pending the receipt of medical information." Insurer argues that attorney's fees are not allowable because they never denied compensability of the claim but only contended that claimant was entitled to permanent partial dis- ability benefits rather than permanent total disability benefits. Additionally the insurer contends that claimant is not entitled to attorney's fees because of his neglect to furnish medical information on request. Claimant, on the other hand, states that the compensa- bility of the claim was at issue because of insurer's refusal to pay permanent total disability benefits which were subse- quently adjudicated payable by the Workers' Compensation Court. Claimant further contends that he did not refuse or neglect to provide medical information available to him or his attorney and that under such circumstances the furnishing of medical information is not a condition precedent to an award of attor- ney's fees. In our view, the record supports a denial by insurer to pay the claim for compensation within the meaning of section 92-616, R.C.M. 1947. Insurer denied the claim for total dis- ability benefits of claimant. The Workers' Compensation Court subsequently adjudicated such benefits payable. As the purpose of the statute is to grant claimant a net recovery of compensa- tion benefits to which he is entitled under the Act, a partial denial of benefits later adjudged payable is within the purview of section 92-616 authorizing an award of attorney's fees. If the statute were otherwise construed to apply only to total denial of compensation benefits, its purpose and objective of affording a net recovery would be defeated. Nor does the statute require medical information not then possessed by claimant to be furnished insurer as a con- dition precedent to recovery of attorney's fees. The statute is completely silent concerning any such requirement. In con- struing a statute, the duty of the Court is simply to ascertain and declare what in terms or in substance is contained therein and not to insert what has been omitted. Section 93-401-15, R.C.M. 1947; Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 660, and cases cited therein. If insurer requires further medical documentation before honoring claimant's claim for compensation, the burden and expense thereof is its obligation if it seeks to avoid the risk of payment of attorney's fees should the claim later be adjudged compensable. We do not excuse claimant from furnishing insurer on request such medical information as he possesses or making himself available for medical examination at the insurer's request, but such are not the facts of this case. The record here contains substantial evidence support- ing the adjudication of the Workers' Compensation Court. We affirm its findings of fact, conclusions of law and order deny- ing rehearing. See Skrukrud v. Gallatin Laundry Co., Inc., Mont . , 557 P.2d 278, 33 St.Rep. 1191. We remand to the Workers' Compensation Court for determination of reasonable costs and attorney's fees on appeal "as established by the division . . . and E ? i s , r e t i - ' . Section 92-616, R.C.M. 1947. Justice c h i & ' £ Justice d A -IN THE SUPREME COURT OF THE STATE OF MONTANA No. 13501 EARL R . MYERS, Claimant and Respondent, 4 B'S RESTAURANT, INC., Employer, and GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant. O R D E R Please make the following change on page 4 of the above entitled opinion. In line 12 from the top of the page, please delete the following: "and in the discretion of the division" DATED this 22nd Chief Justice I IN THE SUPREME COURT OF THE STATE OF MONTANA No. 13501 EARL R. MYERS, Claimant and Respondent, VS. 4 B ' s RESTAURANT, INC . , Employer, and GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant. O R D E R The petition for rehearing, the objections thereto and the cross-petition for rehearing having been submitted to the Court for decision, IT IS ORDERED: (1) That the opinion of the Court be modified by placing a period after the date "December 14, 1976" and striking the words following "from causes other than his injury", all on line 5, page 2 of the original opinion. (2) That as so modified, the original opinion is approved and the petition for rehearing, objections thereto, and the cross- petition for reharing are denied. DATED this _$& d

March 17, 1977

d15e3144-fa89-46c7-b980-3bb337931942

State v. Wilroy

434 P.2d 138

11324

Montana

Montana Supreme Court

434 P.2d 138 (1967) STATE of Montana, Plaintiff and Respondent, v. Robert Douglas WILROY, Defendant and Appellant. No. 11324. Supreme Court of Montana. Submitted October 16, 1967. Decided November 29, 1967. Dzivi &amp; Conklin, William P. Conklin (argued), Great Falls, for appellant. Forrest H. Anderson, Atty. Gen., Donald A. Garrity, Asst. Atty. Gen. (argued), Helena, Gene B. Daly, County Atty., J. Fred Bourdeau (argued), Francis J. Raucci (appeared), Deputy County Attys., Great Falls, for respondent. JOHN C. HARRISON, Justice. Court. This is an appeal from a conviction for the crime of rape allegedly committed against a fifteen year old female. The appellant, at the time of his conviction, was a staff sergeant in the U.S. Air Force stationed at Malmstrom Air Force Base, Montana. *139 On August 3, 1966, he got off duty at 3:00 p.m. and went to the N.C.O. Club where he did considerable drinking until the hours of 10:30 p.m. Upon leaving the club he drove to the Beam's Trailer Court, not far from the Air Base, where he met the 15 year old girl here involved. They had previously become acquainted and the girl had gone out riding in appellant's car. The prosecutrix testified that after some conversation with appellant he grabbed her, struck her, threw her onto the ground and assaulted her. The prosecutrix testified that she screamed during the assault, but at the time of trial only one witness, the girl's great aunt, testified that she heard screams that night. The appellant admitted meeting the girl that night but denied the assault. Shortly after 11:00 p.m., the prosecutrix appeared at her great aunt's trailer. She was bleeding, her face was swollen and her slacks unfastened. She told her aunt she had been raped. She was taken to a hospital within an hour and examined by a physician. This examination indicated that she had engaged in sexual intercourse within three hours of the examination. Some of her clothing was removed at the hospital and given to a deputy sheriff. Later at the trial these items were introduced and received into evidence over the appellant's objections that (1) there was an improper foundation laid to allow their introduction; (2) continuity of possession was not shown by prior witnesses; and (3) there was no showing that the exhibits were in the same condition they were at the time they were first obtained from the witnesses. The court overruled the objection. The appellant was arrested at his home early the next morning and put in a lineup with five other airmen where he was identified by the prosecutrix. At the time of his arrest, items of clothing were taken from him which were later introduced into evidence. An F.B.I. scientist testified that seminal stains and blood stains were found on the clothing of both the appellant and the prosecutrix, but he was unable to type them or to state that they came from the same individual. At the trial some 15 State exhibits were admitted over objection. These exhibits were: "No. 2. A pair of woman's panties, stained with blood and semen. No. 3. A pair of woman's denim jeans, also stained with blood and semen. No. 4. A woman's sweater, or `sweatshirt' stained with semen. No. 5. A brassiere, stained with blood. No. 6. Human hairs. No. 8. A man's right shoe. No. 9. A pair of man's white under-shorts stained with semen. No. 11. A man's white T-shirt, stained with semen and blood. No. 12. A pair of man's white trousers, stained with semen. No. 15. A wash cloth. No. 16. A photograph of a field. No. 17. A photograph of a shoe print in the earth. No. 18. A photograph of a shoe print in the earth. No. 19. A photograph of a field. No. 20. Two glass microscope slides, one of a hair found on State's exhibit 15 (the wash cloth), the other of one of the hairs from State's exhibit 6." It is basic that the party offering an exhibit must lay a foundation through some witness or witnesses who can identify the items as being connected with the crime. When several different witnesses handle the exhibit or exhibits the problem of proper identification is more difficult. This court held in an early opinion State v. Byrne, 60 Mont. 317, 325, 199 P. 262 that: "`Articles which are shown by the evidence to be connected with the crime, or which serve to unfold or explain it, may be exhibited in evidence, provided they are properly identified,' and provided there has been no `substantial change' in them. (16 C.J. 617-622)." See also State v. Wong Fong, 75 Mont. 87, 241 P. 1072. Failure to either properly identify the article, or to prove that no substantial change has taken place in the article, while in custody, constitutes ground for an objection that the proper foundation has not been shown. *140 In the trial of this case exhibits 2, 3, 4, 5, 6, 15 and 20 were admitted, over objection. Exhibits 2 and 3, the panties and jeans were identified by their owner, the prosecutrix, as being hers though they were not identified by nurse Robbins who took the exhibits from her. The identification by the prosecutrix was sufficient so the appellant's objection here as to the chain of evidence is immaterial. The admission of exhibits 4, 5, 6, and 20 were clearly error. As to these, the sweatshirt, the brassiere, hair and the microscopic slides, there was a complete failure on the part of the State to identify them. For all that appears in the record, these items were not even connected with the crime unless we can assume that because a witness was called that they were. The relevancy and importance of each of these items of physical evidence was such that their introduction was prejudicial. The items of clothing and the hair, with the microscopic slides showing comparisons were of crucial import. They not only add to the proof of the sexual intercourse itself, but tied the appellant and his car directly to it. Admitting that certain of the other items might have accomplished the same we find the admission of these items to be more than mere harmless error. They clearly invaded the substantial rights of the appellant. All of these exhibits presumably might have been separately identified by the witness or witnesses acquainted with the facts tying it into the case thereby showing the chain of custody and possession. The basic evidentiary requirement is simple, serves to establish the chain of possession and prevents confusion. Failure to do so constitutes error. State v. Wong Fong, supra. As to exhibits 8, 9, 11 and 12, the items of clothing of the defendant we find the identification to have been sufficient. The lack of specific or positive identification marks is not of great import for the items were not so uncommon that a reasonable identification cannot be made. The lack of positive identification goes to the weight of the evidence rather than to its admissibility. People v. Crosby, 139 Cal. App. 2d 101, 292 P.2d 922. It is sufficient if they are shown to be connected with the crime, and identified as such. As to exhibit 15, a wash cloth, Air Force Investigator Lafonso identified it as the one removed from appellant's car, put into a plastic bag and turned over to the sheriff's office. It was properly identified and admitted into evidence. Exhibits 16, 17, 18 and 19 are photographs taken by a deputy sheriff of the area where the assault occurred and two of them 17 and 18 are photographs of a shoe print in the earth at the scene. Deputy Ferda identified 16 and 19, the area photos, 17 and 18 photos of a shoe print from which a plaster mold was made. The appellant objected to these exhibits, contending that the photos of the shoe print were improperly admitted. He is clearly in error for his only objection went to the qualifications of Deputy Ferda which were established by the State and remain so through appellant's cross-examination. The exhibits had his initials, the date of their taking and his testimony of the location. They were properly admitted. This case, involving as it does, the rape of a 15 year old girl makes it repugnant, to say the least, to be forced to grant a new trial. Yet, our rules of evidence to search for truth are as designed to protect the innocent as to punish the guilty. The first issue, argued by the appellant, was the impropriety of admitting the State's exhibits which we have previously discussed. Holding, as we must under the law, that many of the challenged exhibits were improperly admitted a new trial must be had and no necessity exists to discuss the other issues argued by appellant. For the above reasons the judgment of the district court is reversed and the cause remanded for a new trial. JAMES T. HARRISON, C. J., and HASWELL, ADAIR and CASTLES, JJ., concur.

November 29, 1967

d7273569-9899-44bb-9bcc-b1f24248ede1

CLARK v HENSEL PHELPS CONSTRUCTION

N/A

13399

Montana

Montana Supreme Court

No. 13399 I N T H E SUPREPlE COURT O F T H E STATE O F M O N T A N A 1977 JOHN CLARK, Claimant and Appellant, HENSEL PHELPS CONSTRUCTION CO., Employer and AETNA CASUALTY & SURETY C O . , I n s u r e r and Respondent. Appeal from: Workers' Comp. Court Judge William E. Hunt, p r e s i d i n g . Counsel of Record: For Appellant: Hoyt and Bottomly, Great F a l l s , Montana John C. Hoyt argued, Great F a l l s , Montana Thomas Lewis appeared, Great F a l l s , Montana For Respondent : J a r d i n e , Stephenson, Blewett & Weaver, Great F a l l s , Montana James Aiken argued, Great F a l l s , Montana Submitted: January 27, 1977 Decided: FEB 1 6 1 9 a Filed: :E @ g/I Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal concerns written notice to claimant and approval of the Division of Workers' Compensation prior to the termination of workers' compensation benefits to an injured workman. Claimant John Clark was injured in an industrial acci- dent on August 16, 1973. He was employed by Hensel Phelps Construction Co. insured under Plan I1 of the Workers' Compensa- tion Act. Aetna Casualty & Surety Co., "carrier", was the con- struction company's insurer. Clark was paid temporary total disability benefits from the date of the accident through October 2, 1973. The carrier stopped payment of benefits without notice to claimant or approval of the Division of Workers' Compensation. In June 1975, claimant requested a hearing before the Workers' Compensation Court. That court found claimant entitled to temporary total disability benefits from the date of the accident through October 2, 1973 and again from October 28, 1975 until further order of the court or until the claimant was able to return to work. No benefits were awarded for the period of October 3, 1973 through Octo- ber 28, 1975, and it is from this omission claimant appeals. The record reveals the injury suffered by claimant was an extremely painful and disabling back injury. Since the accident claimant has experienced recurcihg- burning pains in his lower back and left leg. The injury has created a weakness in his left leg causing a limp which is becoming progressively more pronounced. Immediately after the accident claimant was examined by Dr. Schroeder in Eureka, Montana. Dr. Schroeder diagnosed claimant's 1 I injury as a muscle spasm, left lumbar" and referred him to a specialist. Later D r . Schroeder informed the carrier claimant could return t o work on October 3, 1973. This bpinion was used by the c a r r i e r as the basis for termination of workers' compensa- tion benefits t o claimant. The record i s clear, claimant was unable t o do any kind of physical labor for the period i n question. From the date of the accident through October 1975, claimant was examined by a t l e a s t eight different doctors for treatment for h i s injured back. O n October 28, 1975 claimant was examined for the f i r s t time by D r . Richard A. Nelson. O n that date D r . Nelson determined claimant was disabled and unable t o engage i n h i s normal kind of work a s a result of the existing back injury. Apparently D r . Nelson's report was used by the Workers' Compensation Court i n fixing the date for the resumption of benefit payments t o claimant. There was no reason given by the court for the failure to require the carrier t o comply with the notice and approval provisions of the Workers' Compensation Act prior t o the termination of compensation benefit payments. A t issue i s the necessity of giving claimant written notice and acquiring approval of the Division of Workers' Compensa- tion, prior t o the termination of benefits. The controlling section of the Workers' Compensation Act i s section 92-615, R.C.M. 1947, amended i n 1974, but provided i n 1973: "* * * If the insurer determines t o i n i t i a l l y deny a claim, or a f t e r a claim has been accepted, terminates biweekly compensation benefits, it may do so only a f t e r fifteen (15) days written notice t o the claimant and the division, and a f t e r written approval of the division." The effect of this statute upon a fact situation as in the instant case, is a matter of first impression. However, the statute clearly and unambiguously states that notice to claimant and the division, and written approval of the division are prerequisites to the termination of compensation benefits. Where the language of a statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court con- strue. Hammill v. Young, Mont . , 540 P.2d 971, 32 St. Rep. 935; Dunphy v. Anaconda Co., 151Mont. 76, 438 P.2d 660. The Rhode Island Workmens' Compensation Act contains a provision similar to section 92-615, R.C.M. 1947. Rhode Island General Laws 1956, section 28-35-46 states in pertinent part: "Before an employer may discontinue, suspend or reduce compensation payments whether they are being received under an agreement, award, order, finding or decree, the employer shall notify the commission and the employee of his intention to discontinue, suspend or reduce pay- ments and the reason therefor.* * &'' An interpretation of the effect this statute fact situation similar to the instant case is found in Carpenter v . Globe Indemnity Co., 65 R.I. 194, 14 A.2d 235, 240. There the carrier terminated compensation payments to an injured workman on the basis of a doctor's report which stated claimant was able to return to work. Claimant denied receiving notice of the termina- tion of benefits and it was clear the Workers' Compensation Commis- sion had received no such notice. The court found the unilateral termination ineffective noting: "9; * * In our opinion, a finding that such disability has ended or diminished can be reached only by a supple- mental agreement, also approved by the director of labor * Jc * * ' I A more recent case Raymond v. B.I.F. Industries, Inc., 112 R.I. 192, 308 A.2d 820 is in accord. It is clear Rhode Island courts interpret their statute as meaning the employer or his insurer may not unilaterally ter- minate workers' compensation benefits. Further, if the employer does attempt to unilaterally terminate the payment of benefits such attempted termination is ineffective. The employer remains liable for the payment of benefits until the termination is accomplished by following the statutory notice provision. The cause is remanded to the Workers'. Compensation Court with instructions to direct payments to claimant for the period October 3, 1973 to October 28, 1975. With that exception,the decision of the Workers' Compensation Court is affirmed. We Concur: Chief Justice ll

February 16, 1977

6f75937d-6651-4c87-b52c-5d2f377fffde

STATE v SHARBONO

N/A

13111

Montana

Montana Supreme Court

No. 13111 I N THE SUPREME COURT O F THE STATE O F M O N T A N A 1977 STATE O F MONTANA, P l a i n t i f f and Respondent, V S . LOREN D U A N E SHARBONO, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court o f t h e Seventh J u d i c i a l D i s t r i c t , Bonorable L. C . Gulbrandson, Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t : Moses, Kampfe, T o l l i v e r and Wright, B i l l i n g s , Montana C h a r l e s F. Moses argued, B i l l i n g s , Montana For Respondent : Hon. Michael G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana V i c t o r G. Koch a r g u e d , County A t t o r n e y , Sidney, Montana Submitted: J a n u a r y 24, 1977 ~ e c i d e d : P n ! ? 3 1 19fl M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court. Defendant appeals from a jury conviction of deliberate homicide entered i n the d i s t r i c t court, Richland County. Defendant was sentenced t o 75 years i n the Montana S t a t e Prison. Defendant Loren Sharbono was an independent o i l f i e l d service worker whose job took him away from home. He resided with h i s wife Ellen Sharbono and t h e i r 12 year old son i n Baker, Montana. A t the time of her death Ellen was eight months pregnant. O n November 15, 1974, defendant picked up h i s son i n Baker and took him t o stay i n Glendive, Montana. Defendant was to return on November 16, 1974, t o pick up Ellen and go t o Sidney, Montana o r t o Dickinson, North Dakota, f o r the weekend t o t a l k over some domestic problems. Testimony of witnesses indicated Ellen was a f r a i d of night driving and was not going unless de- fendant came f o r her. Defendant denied t h i s , but t e s t i f i e d she did have poor eyesight and wore thick lens glasses. Defendant had been going with a Sidney g i r l , J a n i s Hams, for two years and t h i s was known by Ellen. According t o testimony of J a n i s , they were contemplating marriage. Thirty days before ~ l l e n ' s death a December 6, 1974 marriage date was s e t . Defendant told J a n i s h i s divorce would be f i n a l November 23, 1974, although he refused t o name h i s attorney and asked J a n i s t o t r u s t him. Defendant denied any i n t e n t t o divorce Ellen and t e s t i f i e d he had no intention t o marry Janis. However, sometime following ~ l l e n ' s death, he t o l d an is' father he was i n love with Janis. O n November 16, 1974, defendant.made a date with J a n i s to pick her up from work a t 11:30 p.m. A t 7:01 p.m., telephone records indicated he called h i s Baker home from a telephone booth i n Wibaux, Montana, 45 miles from Baker, charged t o h i s business credit card, and talked for 2 minutes. Defendant t e s t i f i e d he then drove t o Glendive and went coon hunting i n western Richland County, without a gun. H i s hunting consisted of using a stick and flash- light, striking the coons between the eyes. A t about 11:15 p.m. that evening, defendant called Janis from Savage, Montana, and told her he was running l a t e and would pick her up about 12:15 o r 12:20 a.m. She t e s t i f i e d t h i s was the f i r s t time he had been l a t e i n t h e i r two year courtship. He l a t e r advised her he had pickup trouble. Ross Wilson of Savage, Montana, a key witness for the s t a t e , went to Glendive the evening of November 16 t o see a movie. H e l e f t Gkndive about 20:00 p.m. H e t e s t i f i e d he was anxious t o get home and drove a t 80-90 miles per hour on the t r i p home. H e was approximately four miles south of Savage when he came upon an Because h i s parents lived nearby orange Ford pickup truck, parked i n h i s lane of t r a f f i c . /Be -thought it might be poachers, so he slowed down and checked the license number, getting the county designation 39- and the f i r s t and l a s t numbers of 10-9. The middle two numbers he could not catch due t o the fact they were p a r t i a l l y covered with d i r t . Estimating h i s speed between Glendive and the parked truck, he thought he came upon the orange pickup a t about 10:30 p.m. H e slowed down t o 12 t o 15 miles per hour before passing the truck and i n so doing noted there were two occupants of the truck cab; a passenger was getting into the truck and a man was bent over i n an e f f o r t t o close the door. H e noted the driver had dark hair. Upon hearing of the "accident" l a t e r that night, he went t o the scene and reported t h i s information t o a fireman and the undersheriff. Defendant was driving h i s orange Ford p ~ c k u p , wich License number 39-1969. Savage, Montana i s located approximately 23 miles south of Sidney on the highway t o Glendive. A t approximately LL;15 p.m., November 16, 1974, a witness Clinton Patterson was driving toward Glendive. About four miles south of Savage he s a w a glowing on the side of the h i l l s . When he arrived a t t h e scene he saw a car i n a ravine with flames coming out of the window area and around the hood. About t h i s same time a beet truck arrived a t the scene. this cruck was driven by off-duty highway patrolman Jack Gaughan, who instructed Patterson t o return t o Savage and c a l l t h e f i r e department and authorities. Gaughan could only get within 10 t o 12 f e e t of the car, since it was burning f i e r c e l y , but he read the license number of t h e car a s 39-924. The vehicle was registered i n the name of Ellen Sharbono and defendant. Other o f f i c e r s , t h e Savage f i r e department, and the coroner subsequently arrived a t the scene. The f i r e department took about 25 minw~testo control the f i r e . By t h i s time the badly charred remains of Ellen Sharbono had been discovered lying on the floor board, with her head against the passenger side of the car. The victim's body was removed by the coroner. I n the early morning of November 1-7, 1974, defendant was located a t a motel i n Sidney and n o t i f i e d of h i s wife's death. H i s truck, with license number 39-1969, was parked a t t h e motel. About 4:15 a.m. on November 17, 1974, the Sharbono truck was seen stopping a t the home of J i m Fischer, a r e t i r e d highway patrolman and brother-in-law of defendant married t o defendant's s i s t e r , Louella. Fischers t e s t i f i e d defendant called them t o t e l l them of ~ l l e n ' s death and asked t o come out t o t h e i r home. They t e s t i f i e d he was very upset when he arrived and it had been an emotional experience. Defendant talked with them f o r sometime and s l e p t on a couch i n the living room f o r an hour and half early i n the morning of the 17th. During h i s conversations with t h e Fischers, from the testimony of numerous witnesses, it would appear defendant made an e f f o r t t o g e t them t o provide an a l i b i f o r him by s t a t i n g : "You can say we was fox hunting together.'' The Fischers t o l d t h i s story about fox hunting t o several investigating o f f i c e r s and it was not u n t i l December 26, the day of defendant's a r r e s t t h a t J i m Fischer voluntarily went t o t h e county attorney's o f f i c e and gave him a corrected story. I n t h e meantime, on November 20, upon learning t h a t h i s w i f e ' s body had been taken t o Great F a l l s , defendant contacted Fischers and had them drive over a country road from Sidney t o Wibaux with him. During t h i s t r i p he had them note certain,places where he said he had been, a t specified times, during t h e evening of November 16-17. During defendant's v i s i t t o the home of Fischers on the 17th, he asked h i s s i s t e r t o say they were playing "pinochle" t h a t evening. When h i s s i s t e r asked him why she should say t h a t , he replied "I was on t h a t road--the Glendive-Sidney road". H e also told h i s s i s t e r he called h i s g i r l friend from Savage a t about 11:OO t o 11:lO p.m. on November 16. A t no time during h i s testimony did defendant admit being on the p a r t i c u l a r section of the Glendive-Sidney road where the accident occurred. Investigation of the accident revealed the victim's c a r went o f f the road a t almost a 90' angle. This was described by the investigators a s a most unusual angle of leaving t h e highway. Investigation by the state fire marshal's office revealed the fire was caused by accelerants, starting in the passenger portion of the victim's automobile. The chemist from the state crime laboratory concluded the gasoline sample taken from the interior of the victim's car was a different gasoline than that in the tank of the automobile. On November 20, 1974, Dr. Joseph McKinley, a Sidney pathologist, made a partial autopsy and found fractures of the hyoid bone and thyroid cartilage, which to him indicated manual strangulation. On December 20, 1974, the body was flown to Great Falls where a complete autopsy was performed jointly by Dr. McKinley and Dr. Pfaff, a forensic pathologist. Both concluded Ellen Sharbono died of manual strangulation. The victim's own doctor testified that Ellen Sharbono was previously in good health. In1;addition, the state introduced evidence that defendant obtained life insurance on his wife on September 24, 1974. The policy was a joint whole-life policy for Loren and Ellen Sharbono in the amount of $150,000. Defendant's agent testified he had suggested the additional insurance due to defendant's going into business for himself. On appeal, defendant presents 14 issues for'this Court's review: 1) Was Patrolman Gaughan improperly allowed to give an unresponsive answer and testify as to his opinions and conclusions in describing the burning car? 2 ) Was Patrolman Rowe improperly allowed to testify as to a self-serving statement by saying he went to view the car "to gather evidence" ? improperly 3) Was Patrolman ~aul/allowed to give his opinion as to the speed of the car when it left the highway and its speed when it hLt the bottom of the ravine without proper foundation? 4 ) Was Exhibit A-14, a gaschromebiography analysis of gasoline, improperly admitted into evidence without sufficient foundation? 5) Was it error to permit Dr. Pfaff to repeat his opinion that the cause of death was by strangulation? 6 ) Was hearsay testimony improperly allowed into evidence when Mary McGonigal testified as to a telephone conversation she had with Ellen Sharbono? 7) Was hearsay testimony improperly allowed into evidence when James Fischer testified as to a telephone conversation he had with the county attorney? 8 ) Was the State improperly allowed to impeach its witness, James Fischer, without a showing of surprise? 9 ) Was there sufficient evidence at the close of the state's case to go to the jury? 10) Should the case have been dismissed at the close of the state's case because the medical testimony failed to satisfy the circumstantial evidence test by failing to rule out all other reasonable hypotheses as to the cause of death other than strangulation? 11) Was the sheriff improperly allowed to present hearsay and conclusionary testimony by stating he had no reason to believe Wilson would be involved? 12) Was the sheriff improperly allowal to repeat his testimony about Wilson? 13) Was it error for the district court to refuse the 'burn film''? 14) Did the district court err in refusing Sharbono's proposed instruction i l l 4 which defined "deliberation" ? Issues 1, 2 and 3 involve the tescirnony of three highway patrolmen and w i l l be considered a s one. Jack Gaughan was one of the f i r s t witnesses on the scene. Sefore going down t o the burning c a r , he sent Patterson, the f i r s t witness on the scene, t o Savage t o get help from the volunteer f i r e department. Gaughan estimated h i s time of a r r i v a l a t the scene between 11:15 and 11:30 p.m. He took an extinguisher from h i s truck down t o the f i r e i n an e f f o r t t o extinguish it, but was unable t o get closer than from 10 t o 12 f e e t , due t o the intensity of the f i r e . I n describing what he saw, he said "* * * it would---like a piece of rag burning t h a t has been o i l soaked o r something, t o m e it reminded m e of ---- .'I ~ e f e n d a n t ' s dounsel objected alleging the answer was not responsive and was che opinion and conclusion of the witness. Defendant argues the court erred i n overruling h i s objection and c i t e s numerous cases and t e x t i n support of h i s objection. N e have examined those cases and t e x t c i t e d and find none c p n t i o l - ling,, Here, Gaughan was asked the question "Would you describe whac you saw i n regard t o the burning vehicle?" The answer was a description of what Gaughan saw and defendant objected and moved to s t r i k e the e n t i r e answer as not responsive and a s an opinion and conclusion. N o e f f o r t was made t o s p e c i f i c a l l y point out what h i s objection was directed t o and it was an improper objection. H witness, a s the witness here, who saw the car burning, may, a r t e r s t a t i n g a s much a s he can of the constituent f a c t s , s t a t e h i s impression o r inference with respect t o what he saw. I n r e ~ ~ L l e r ' s Estate, 36 Utah 228, 102 P. 996; Paulich v. Nipple, 104 Yan. 801, 180 P.771; H i l l v. Chappel Bros., 97 Mont. 305, 33 P.2d 819; Union Pacific Ry. Co. v. Gilland, 4 Wyo.395, 34 P. 953; 32 Z.J.S., Evidence §546(9). - 8 - Defendant next objects t o the testimony of Patrolman Rowe a s "self -servingu. Rowe , along with several other investi- gating o f f i c e r s , went t o the fairgounds where the burned vehicle was stored f o r the purpose of getting c e r t a i n p a r t s of the vehicle t h a t where l a t e r used i n t h i s case. The testimony and objection was: "Q. Was there any purpose i n going out and meeting with these other p a r t i e s you described on the 25th of November? A. Yes. Q . What was t h a t purpose? "MR. MOSES: I object upon t h e ground t h a t it i s s e l f -serving.'' W e find no m e r i t t o defendant's argument. Rowe was a p a r t of an investigative team f o r the purpose of "gathering evidence1'. His answer was not a self-serving statement. 3LA C.J.S. Evidence, 9216, p. 590, s t a t e s the r u l e regarding s e l f ~ s e r v i n g declara- tions : "A 'self-serving declaration' within the r u l e i s one made by a party i n h i s own i n t e r e s t a t some time and place out of court, and does not include t e s t i - mony which he gives a s a witness a t the t r i a l . " See Welch v. Thomas, 102 Mont. 591, 601, 61 P.2d 404. Defendant a l s o objected t o the testimony of Sgt. John Kaul of the highway p a t r o l a s t o h i s opinion of t h e speed of the death vehicle when it l e f t the road. Sgt. Kaul t e s t i f i e d he had been a highway p a t r o l sergeant f o r approximately 12 years; had considerable special training i n accident investigations and had investigated some 300 accidents. He qualified a s an expert i n h i s f i e l d . Kaul s t a t e d , i n h i s opinion, the vehicle l e f t t h e road a t "a very low r a t e of speed" --- somewhere i n the v i c i n i t y of from 10 t o 15 miles per hour. Prior t o t h a t testimony, he had totally familiarized himself with the scene, observed .the tracks of the vehicle on the grass slope, checked for skid or gouge marks on both the slope and highway and found none, observed the damage done to the automobile caused by its coming to rest against the bank of the ravine, took photographs of the scene (later used as exhibits), and noted the unusual angle of the vehicle as it left the highway. The trial court properly admitted this testimony. The rule in Montana relating to the admission of expert testimony is set forth in Haynes v . County of Missoula, 163 Mont. 270, 517 P.2d 370, This Court has held highway patrolmen are experts in their field of accident investigation. See: State v . Souhrada, 122 Mont, 377, 204 P.2d 792; State v. Stoddard, 147 Mont. 402, 412 P.2d 827; State v . Deshner, 158 Mont.188, 489 P.2d 1290; 8 Am Jur 2d, Automobiles and Highway Traffic 5990, We find defendant's issues 1, 2 and 3 to be without merit. Issue 4, alleges there was insufficient foundation for the admission of evidence obtained from the gaschromebiography. We find no merit in ,issue , 4 . The objection arose during the testimony of Arnold Melnikoff, the forensic chemist and lab supervisor of the criminal investiga- tion department when he tried to use a chart to illustrate the gaschromebiography analysis of gas samples taken at the scene and from the burned vehicle. Following extensive direct examination and cross-examina- tion on the operation and use of the gaschromebiograph, and a discussion in chambers with the judge, counsel for defendant made his objection as to the competency of the evidence in a criminal case. The court ruled a proper foundation had been laid and stated: - 10 - "* * * Certainly I am convinced it was adequate after you [Moses] got through with him. I think I understand the process but 1 am not sure it makes it more competent evidence, but in mind I am much more familiar with the process. * * *" Defendant's objection can be divided into two parts: 1 ) The lack of foundation of the verification of the accuracy of the instrument. 2 ) The competency of the gaschromebiograph in a criminal case. 1 ) The foundation was laid by the qualifications of Melnikoff, the state chemist, and his testimony of how the machine was periodically checked and that it was in good working order. 2 ) Concerning the competency of such evidence on the fractionation of mixtures of substances and its ability to afialyze both organic and inorganic compounds, see: The Cyclopedia of Chemistry, 2d Ed.(1966); The Journal of Chromatopgraphy, a 116 volume work of scientific scholars; and the Journal of Forensic Medicine from 1971 through 1976. Whfle admission of this type of evidence in a criminal case is a matter of first impression in this jurisdiction, we have allowed its admission in a civil case, Jangula v. United States Yubber.Co., 147 Mont. 98, 410 P.2d 462. Several states, Missouri, California, Arkansas and Vermont have allowed its admission in criminal cases. State v. Perryman, (Mo.App. 1975), 520 S.W.2d 126; State v. Munn, 257 Ark. 1057, 521 S.W.2d 535; People v. Rawlings, 42 Cal.App.3d 952, 117 Cal.Rptr. 651; State v. Burack, 133 Vt. 482, 346 A.2d 192, 194; 23 C , J . S . , Criminal Law, §858(2), p . 380. We adopt the position of the Vermont Court in - Burack --- in allowing ~ h e admission of the tests made by a gaschromebiograph. This Court has long held it is within the jurisdiction OL the trial judge to admit scientific and expert testimony. We find no abuse of t h a t discretion here. Graha~n v. Kolandson, 150 Mont. 270, 435 P.2d 263; Hurley v. S t a r Transfer Company, 141 Mont. 176, 376 P.2d 504. Issue 5 is directed a t alleged repetitious opinion t e s t i - niorly of D r . Pfaff, the forensic pathologist. During d i r e c t testimony D r . Pfaff t e s t i f i e d t h a t , i n h i s opinion "I believe she died a s the r e s u l t of manual strangulation and asphyxia therefrom. I I O n r e d i r e c t , he gave the same testimony i n answer t o a question---over the objection of defendant. The r e d i r e c t testimony cane a f t e r defendant's cross-examination where an e f f o r t was made t o e s t a b l i s h the cause of death occurring from a steering bheel injury. Its purpose was t o c l a r i f y any question i n the airids of the jury members a s t o what was D r . ~ f a f f ' s expert opinion on the cause of death. W e find no error. Moore v. rremelling, 100 F. 2d 39 ; 3 Wigmore, Evidence, 5 782 (2) (Chadbourn Kev. 1970) ; 4 Jones on Evidence, 5 28: 7. Issue 6 is directed t o hearsay conversations between Ellen and Mary McGonigal, a nurse and neighbor friend of Ellen. rhey saw each other d a i l y and talked often on the phone. Mary WcJonigal t e s t i f i e d she could recognize Ellen's voice on the ohone, she knew of ~ l l e n ' s plans t o spend the weekend with de- Lendant, and had, i n f a c t , loaned her a suitcase t o go on the trip. She was allowed, over objection and a f t e r argument i n chambers t o t e s t i f y t h a t she talked on t h e phone with Ellen on Yovember 5 about her weekend plans; t h a t Ellen was a f r a i d t o d r i v e a t night and t h a t she would not go on the weekend unless her husband drove. The t r i a l court allowed the admission of the testimony under the state-of-mind exception t o the hearsay rule. W e agree. - 12 - The hearsay r u l e generally dxcludes statements made aut of court, where the speakers a r e not present t o be examined. There are exceptions made f o r statements and a c t s which serve t o explain the a c t i n question where the speaker i s incapable of being present. Telephone conversations, a s i n t h i s case, are admissible. 22A C.J.S. Criminal Law $662(2) (4); Anno. 113 A.L.R. 268 303, $ V(b) (2). This Court i n Thompson v. Steinkamp, 120 Mont. 475, 481, 187 P.2d 1018, allowed hearsay testimony t o show i n t e n t . The Court said: "' When i n t e n t i s a material element of a disputed f a c t , declarations of a decedent made a f t e r a s well a s before an alleged a c t t h a t indicate the i n t e n t with which he performed the a c t a r e admissible i n evidence a s an exception t o the hearsay r u l e * 9~ *."I Testimony r e l a t i ~ ~ e t o the i n t e n t of a decedent a s t o destination o r taking a tr2p i s admissible and i s one of the state-oE-mind hearsay exceptions. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L ed 706; People v. McMonigle, 29- Cal.2d 730, 177 P.2d 745. I n a case nearly on a l l fours with the i n s t a n t case the Supreme Court of Oregon i n S t a t e v. Bartolon, 8 Ore.App.538, 495 P.2d 772, admitted a statement by deceased of her i n t e n t t o go t o a c e r t a i n place. I n the i n s t a n t case arguments of both counsel were made t o the court i n chambers, questions t o be propounded t o the ' witness Mary McGonigal were discussed and many were dropped by the county attorney due t o defendant's objections. I n the end the solution on admissibility was i n the hands of the t r i a l court whose sound discretion is subject t o review only i n a case of manifest abuse. None i s found here. S t a t e v. Medicine Bull, Jr., i j 2 Mont. 34, 445 P.2d 916. Issue 7 is directed at hearsay testimony by a witness in a telephone conversation with the county attorney. Defendant contends it was error to permit James Fischer, defendant's brother-in-law, to testify as to a hearsay conversation he had with the county attorney. Fischer had given a statement to the county attorney that the defendant had been hunting with him on the night of November 16. The conversation referred to was between James Fischer and the county attorney: "Q. Prior to that time, Mr. Fischer, before any conversation that we have been refreshing your memory on on the statement, did you make any state- ment to any law enforcement officer about going to the Sidney-Wibaux road with the defendant and stopping at a pay booth where you made a telephone call on November 16, 1974? A. Go over that one more. "Q. Prior to the time that -- let me go back a minute. After you learned that the defendant had been arrested and what he was charged with, what did you do? Did you notify anybody? A. Not that I know of really. If mean, if I did now you can refresh my memory. "Q. All right, that very evening, did you call the County Attorney? A. I did, sir. "Q. What did you say? A. I simply lied to you." No error is found in the court's ruling. Where the witness can answer the question propounded to him of his own knowledge, and the value of his testimony does not depend in any degree upon the veracity or competency of any other person, his answers are not objectionable as hearsay. In State v. Crean, 43 Mont. 47, 59, 114 P. 603, a similar fact,case, this Court said: "* * 9~ Our Code * * * provides: ' A witness can testify to those facts only which he knows of his own knowledge', etc. The term 'hearsay,' as used in the law of evidence, signifies a11 evidence which is not founded upon the personal knowledge of the witness from whom it is elicited * * The principal objections to this species of evidence are ( 1 ) that it is given under oath--that is, that the person whose words are repeared was r i o t under oarh-- and ( 2 ) that such person is not subject to cross-examination. That the evidence sought to be elicited by these questions was not hearsay is apparent enough. The witness could ans- wer every question of his own knowledge, and the value of the testimony given did not depend in any degree upon the veracity or competency of any other person. I I See also: McGonigle v. Prudential Insurance Co., 100 Mont. 203, Issue 8 relates to charges the state was erroneously per- mitted to impeach its own witness without showing surprise. James Fischer, defendant's brother-in-law, who made the quoted statement in Issue 7, and who went with defendant over the Sidney-Wibaux road to cover defendant's travels on the night of the death, was a most reluctant witness for the state. This re- luctance came after he called the county attorney and admitted he lied and after voluntarily going to the county attorney's office and giving a clarifying statement. That statement was taken home by Fischer and his wife a week before the trial for any corrections, but in spite of all of this he was a most evasive witness. Finally, after two sessions in the judge's chamber and some 30 pages of testimony, the trial court declared him a hostile witness and allowed impeachment. The state contends that it was refreshing the witness' memory, but since the defense's objection is to impeachment, we cite the Montana sections pertinent: Section 93-1901-8, R. C .M. 1947. "The party producing a witness is not allowed to impeach his credit by dvidence of bad,character, but he may contradict him by other evidence, and may also show that he has made dt other times statements inconsistent with his present testimony as provided in section 93-1901-12.'' jection 93-1901-12, R.C.M. 1947. "A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. " Here, Fischer voluntarily gave a statement correcting a previous statement and was also allowed time to correct same. He failed to tell the truth and the trial judge, from all the testimony he heard and from what he saw of the witness, ruled the county attorney was surprised. We find no merit in defendant's Issue 8 . Issue 9 questions whether there was insufficient evidence at the close of the state's case to grant a motion to dismiss. Defendant directed his motion on an alleged failure of the state to establish his presence in the vicinity or as to the evidentiary value of the attempt by defendant to establish an alibi. The court recognized the problems of the case at that point of the trial and ruled there was sufficient circumstantial evidence before the jury with ( I ) the double indemnity insurance, ( 2 ) the proposal of marriage to the girl £rid,, ( 3 ) the alibi attempt, and ( 4 ) the statement of the defendant made to Mary McGonigal on the day of Ellen's funeral. Defendant cites authority that there must be substantial proof to convict and suspicion is not enough. He relies on State v. McCarthy, 36 Mont. 226, 92 P. 521; State v. Powers, 39 Mont. 259, 102 P. 583; State v . Brower, 55 Mont.349, 117 P. 241; State v. Merseal, 167 Mont. 409, 538 P.2d 1366, 32 St.Rep. 823. We find the cases cited unrelated to the issue of alibi and have little value to the facts here. The thrust of defendant's motion was directed at the alibi testimony. We find the rule on such testimony stated in People v. Wayne, 41 Cal.2d 814, 264 P.2d 547, 551, where it was said: " ' 9 ~ * * But where a material f a c t is established by evidence and it is shown t h a t a defendant's testimony a s t o t h a t f a c t was wilfully untrue, t h i s circumstance not only furnishes a ground f o r disbelieving other testimony of t h i s defendant * * * but a l s o tends t o show consciousness of g u i l t o r l i a b i l i t y on h i s p a r t and has probative force i n connection with other evidence on the issue of such g u i l t o r l i a b i l i t y . Such f a l s e testimony is i n the nature of an admission from which other evidence g u i l t o r l i a b i l i t y may be inferred. ' " See also: 2 Wigmore, Evidence, 5 278. Here, the court noted the circumstantial evidence before the jury and found it s u f f i c i e n t t o overrule defendant's motion t o dismiss. W e find no e r r o r i n the c o u r t ' s ruling f o r not only was there an attempt t o e s t a b l i s h an a l i b i but there was testimony t h a t (1) placed defendant a t the scene, (2) established motive f o r the crime, (3) showed deceased feared night driving, (4) the medical testimony on the cause of death, and (5) Mary ~ c G o n i g a l ' s testimony a s t o t h i s conversation with defendant on the day of ~ l l e n ' s funeral: "Q. Would you c i t e a s near a s possible the conversa- tion? A. He said: 'Mary, I a m awfully sorry about your suitcase and I want t o replace it' and I t o l d him it was a l l r i g h t . "Q. Did you have any reaction t o t h a t ? A. Yes, I did because nobody knew I loaned it. I I See: S t a t e v. Cor, 144 Mont. 323, 396 P.2d 86. Issue 10 contends e r r o r because the t r i a l court f a i l e d t o dismiss a t the close of the s t a t e ' s case on the basis t h a t the medical evidence a s t o death f a i l e d t o s a t i s f y the circumstantial dvidence t e s t . While the two pathologists could not r u l e out a blow t o the neck from the steering wheel, they both found other ovidence of damage t h a t the throat fractures would have been i n d i i f e r e n t locations had there been a blow t o the windpipe. I n chat case the fractures would have been along the sides, not the front. Both pathologists t e s t i f i e d t h a t Ellen was dead before the fire began and in their opinions death was caused by asphyxiation, due to manual strangulation. Defendant cites State v . Allen, 34 Mont. 403, 415, 87 P. 177, for the rule for admitting circumstantial evidence. There the Court speaking to an instruction, noted: "* * * Reading this paragraph with the rest of the charge, we do not think the jury could have been mislead; yet, it should have stated that the jury should convict only if the circumstances were of such a character as to satisfy the minds of the jury of the guilt of the defendant beyond a reasonable doubt to the exclusion of every reasonable hypothesis other than the guilt of the defendant." (Emphasis added.) While we do r i o t disagree with this citation in an early case of this Court, we find the evidence here could well have satis- fied the minds of the jurors "to the exclusion of every reason- able hypothesis." This Court in State v. Fitzpatrick, 163 Mont. - 220, 227, 516 P.2d 605, stated: "* * * this Court held in reviewing a case the Court is to give to each circumstance in evidence all the legal effect toward guilt which it could - support to see whether a rational conclusion of innocence was excluded. * * *" See: State v . Radi, Mont . , 542 P.2d 1206, 32 St.Rep. 1143; State v . Cor, supra; State v . DeTonancour, 112 Mont. 94, 98, 112 P.2d 1065; State v . Warrick, 152 Mont. 94, 4 4 6 P.2d 916. Issue 11 alleges that hearsay and conclusion testimony was permitted by the sheriff. Over the objections of the defendant the sheriff was allowed to testify to what was clearly hearsay and conclusion answers in regard to matters concerning-whether or not Ross Wilson was involved. Allowing the sheriff to testify in the manner he did was improper and error. However, we do not find it so prejudicial as to require reversal. Before this Court will reverse a judgment, prejudice must be shown. State v. Totterdell, 135 Mont. 56, 336 P.2d 696; State v. Hay, 120 Mont. 573, 194 ~ e i e n d a n c ' s Zssue 12 alleges the s h e r i f f ' s statements, discussed i n Issue 11, were repetitious. W e find no e r r o r . The rnatter is discretionary with the t r i a l court and no substantial r i g h t s of defendant were damaged. Issue 13 alleges the court erred i n refusing t o allow the jury tu view a "burn filmt' offered by the defense. Defense called ds i t s witness D r . F. D. Lee, a physics teacher from Ball S t a t e University, Muncie, Indiana, who t e s t i f i e d a s t o the speed of the death vehicle and the i n j u r i e s t h a t could have resulted. The defense then attempted t o put i n t o evidence a film which de- monstrated s i x d i f f e r e n t car burnings, and a film t h a t had been prepared t o demonstrate what could happen a s f a r a s f i r e s were concerned when c a r s were involved i n collisions. Defendant argues t h i s evidence was v i t a l t o the defense i n view of the testimony given by s t a t e witnesses and t h a t under Montana law i c was e r r o r not t o allow the jury t o see these films, c i t i n g Gobel v. Rinio, 122 Mont. 235, 238, 200 P.2d 700. Here, the court viewed the film i n chambers and noted t h a ~ a l l s i x c o l l i s i o n s d e a l t with r e a r end c o l l i s i o n s where the gas tanks were ruptured and noted t h a t there was no rupture i n the i n s t a n t case, further t h a t there was no evidence of a fuel l i n e rupture o r a showing of gas burning underneath the a . The t r i a l court denied a showing of the films. This Court considered the same issue i n Leary v. Kelly !?ipe Co. , Mont . , 549 P.2d 813, 817, 33 St.Rep. 413, 411, involving the negligent unloading of a Itruck where the tlrlal court excluded evidence on a showing of the proper method J E loading a truck, and said: "These photographs do not d e y i c c ALLY conditiori r e l a t e d t o t h i s controversy. The pictured trucks are d i f f e r e n t trucks loaded d i f f e r e n t l y from the F-B truck and t r a i l e r involved i n t h i s case. W e find no e r r o r i n excluding them." Here, the films involved experiments with d i f f e r e n t and smaller vehicles i n crash s i t u a t i o n s e n t i r e l y d i f f e r e n t than the f a c t s here. Leary controls and a s noted i n Gobel, c i t e d by defendant: "This court i s committed t o the view t h a t the t r i a l court has a wide discretion i n admitting any diagram, map o r photograph * * *." Defendant's Issue 14 concerns the c o u r t ' s denial of defendant's offered instruction No. 14 a s t o the required intent f o r deliberate homicide. Defendant's proposed instruction No. 14 reads: "You a r e instructed t h a t homicide which i s perpetrated by any kind of w i l l f u l , deliberate and premeditated k i l l i n g i s committed purposely o r knowingly and i s deli6erate homicide. "To constitute t h i s type of crime, the k i l l i n g must be accompanied and must be preceded by a c l e a r deliberate i n t e n t t o take l i f e , an i n t e n t t o k i l l which must be the r e s u l t of deliberation and premedi- t a t i o n so t h a t it must have been formed upon a preexisting r e f l e c t i o n and not under a sudden heat of passion o r other condition such a s precludes the idea of deliberation. I I I t is defendant's position t h a t before he can be convicted of t h i s crime the s t a t e must beyond a reasonable doubt s a t i s f y i t s burden t h a t defendant had a g u i l t y mind, a g u i l t y or wrongful purpose, a criminal intent. I n support he r e l i e s upon a number of cases but principally the holding i n Morissette v. United S t a t e s , 342 U.S. 246, 96 L ed 288, 72 S.Ct. 240. Defendant argues t h a t under the instructions given by the court the necessity f o r the jury t o find defendanfs mens rea (criminal i n t e n t ) i s eliminated. Further t h a t knowingly and purposely, a s defined by the Montana Criminal Code, and a s given i n the c o u r t ' s given instructions do not include t h i s v i t a l element and therefore f a i l u r e t o give defenant's proposed instruction No. 14 was e r r o r . The statute involved ,is section 94-5-102, R.C.M. 1947, the pertinent part of which reads: "~xcept as provided in section 94-5-103 ( 1 ) ( a ) , criminal homicide constitutes a deliberate homi- cide if: "(a) it is committed purposefully or knowingly". The Commission Comment states: "Section 94-5-102 relates only to conduct which is done deliberately; that is, purposely or knowingly. * * *" (Emphasis supplied.) What the legislature did, in enacting the Montana Criminal Code 1973, was to reduce the difficulty in this area by arti- culating general principles that shall apply when the definitions of a particular offense are ambiguous. The culpability re- quirements adhere to familiar concepts, purposely, knowingly. Upon the whole it is the person who means to do the thing that constitutes a crime , knows he is doing it, and knows that there is a substantial and unjustifiable risk in doing it, whose conduct warrants condemnation of the kind from which conviction results. The problem of scienter, guilty knowledge, goes to the question of culpability generally and has been usually dealt with by the concept of -- mens rea. While culpability is variously stated in criminal statutes in terms such as "willful","willfully and unlawfully", "with intent to" and other phrases, these exact words are not necessary in determining whether the statute is vague. The United States Supreme Court has held in a series of cases that a statute will not be evaluated on its face, but ... , .. - 21 - only i n the context with which a defendant is,charged. United States v. Petrillo, 332 U.S. 1, 91 L ed 1877, 67 S.Ct. 1538. It has also looked into the requirement of scienter i n the statutory definition of the crime i n words like " ~ i l l f u l l y ' ~ , "intentionally1' and "knowingly" as overcoming the vice of vague- ness. Boyce Motor Lines v. United States, 342 U.S. 337, 91 L ed 367, 72 S.Ct. 329. Under the provisions of section 94-5-102, R.C.M. 1947, the necessary requirements for "mens rea" and "criminal intent" are embodied i n the use of the new language of the statute "purposely" and "knowingly". The court's given Instruction No. 1 7 defined both I I purposely" and "knowingly" i n terms s e t forth i n section 94-2- 101, R.C.M. 1947. It i s defendant's contention the homicide statute requires more to be clear. W e do not agree, for it i s clear from the Commission Comment that it was the legislative intent t o replace such terms a s "deliberately". This Court i n State v. Klein, Mont . , 547 P.2d 75,78, 33 St.Rep. 283,288, spoke t o t h i s issue. I n Klein, a robbery case, it was alleged the t r i a l court committed error i n refusing defendant's instruction defining "feloniously". There we referred t o the Annotator's notes under section 94-2-101, Montana Criminal Code of 1973, Annotated, which stated: "A major problem of prior Montana criminal law was the use i n the code of numerous terms affecting culpability that were largely undefined. Under the new Code, the mental states required for various degrees of culpability are defined carefully i n a hierarchy. 'Purposely' i s the most culpable s t a t e and implies a design. This term replaces a term frequently used i n the old code, 'intentionally' J : 3c **" The Court then stated: "It is clear that the legislature intended the words I purposely' and 'knowingly' would substitute for the word ' felonious' ( i . e . intentionally) as used in the old code.* * *" Here, the court gave defendant's offered instruction No. 17, defining both "purposely" and "knowingly". We find no error. Judgment of the trial court is affirmed. We Concur: , - - - - 7

March 30, 1977

ec91446b-f1c6-4fd3-b351-d712db4e46ac

State v. Brooks

436 P.2d 91

11322

Montana

Montana Supreme Court

436 P.2d 91 (1967) STATE of Montana, Plaintiff and Respondent, v. Roy A. BROOKS, Defendant and Appellant. No. 11322. Supreme Court of Montana. Submitted November 30, 1967. Decided December 28, 1967. *92 John T. Mullaney (argued), John A. Alexander (argued), Butte, for appellant. Forrest H. Anderson, Atty. Gen., William A. McCormick, Asst. Atty. Gen. (argued), Helena, Mark P. Sullivan, County Atty., Butte, for respondent. JOHN C. HARRISON, Justice. This is an appeal from a judgment of conviction for the crime of second degree murder and a sentence of 40 years in the state prison entered against the defendant Roy Als Brooks. The judgment is pursuant to a verdict of "guilty" rendered in the district court of the second judicial district, the Honorable John B. McClernan, District Judge presiding, sitting with a jury. The defendant was charged with the crime of first degree murder by an information filed in the district court on April 27, 1966. The purported crime arose out of the death of one Jess Villalovis on April 26, 1966, in Butte. The trial of the case commenced on September 12, 1966, and on September 20, 1966, it was submitted to the jury. The jury returned a verdict finding the defendant guilty of murder in the second degree and fixing punishment at ten years and one day, without parole. Judge McClernan refused to accept the verdict in the form returned explaining that the words "without parole" invaded the province of the parole board. The jury returned to the jury room and upon further deliberation returned a verdict of guilty of second degree murder, leaving the punishment to be fixed by the court. On September 23, 1966, the defendant was sentenced to a term of 40 years in the State Prison at Deer Lodge. Defendant made two motions for a new trial, which were denied, and he then appealed. *93 The circumstances leading up to and surrounding the violent death of Jess Villalovis in his apartment on Porphyry Street in Butte reveal a drama not unlike the plot of a sordid grade "B" movie. The principal characters, save of course the deceased, placed their versions of the tale before the jury and we are forced to review them here. One Benito Sandoval, known as "Benny", was a friend of the deceased. He stated at trial that on the day of the crime he first saw the victim very early in the morning at the Board of Trade Bar. The two men played pool and drank beer for a time and then proceeded to a restaurant and ate. From there they went to the victim's home on Porphyry Street. They arrived at about 5:00 a.m. The men had a pint of whiskey with them and they "had a few drinks" before going to sleep. The building where the deceased lived and where he died consists of six apartments. Here, we are concerned with three of them. On the ground floor are the apartments occupied by the defendant Brooks and his wife and that of one Jay Smith and his wife. The part of the Smiths, and their apartment, will be set out in due course. On the second floor, above the Smiths, lived the deceased with his wife Anne. (While there is some question as to whether Anne was actually the wife of the deceased, it is not important to this appeal.) Leading to this second floor apartment there is an outside stairway on the west side of the building and a narrow inside stairway near the kitchen of the apartment. The morning of the crime, Jess Villalovis and Benny Sandoval were sleeping in a room on the ground floor of the building. Apparently, when Jess had been drinking, his wife was often reluctant to let him in the apartment so he slept downstairs on these occasions. At around noon the two men went upstairs to the Villalovis apartment. Almost immediately thereafter Benny went out and bought a fifth of whiskey and returned to the apartment with it. The three people, Benny, Jess and his wife Anne, proceeded to drink all of this bottle. At around 3:00 o'clock in the afternoon Benny went out and bought a second fifth, returned with it and they continued drinking. About 4:00 p.m. Benny and Anne went downstairs to check on a suspected leak in a gas pipe. There they met the defendant Brooks. Brooks stated at that time and later at the trial that when he met Benny and Anne he had already consumed a pint of whiskey that day and was partially drunk at that time. The defendant returned with Benny and Anne to the apartment and with the deceased they finished the second bottle of whiskey. When the liquor ran out Benny made another trip and this time he returned with two fifths of whiskey. The party continued. At about 4:30 p.m., the defendant's wife, Mary Brooks, came to the apartment. She started drinking with the others. From the testimony it is apparent that all of those in the apartment, with the exception of the defendant's wife, were in an advanced stage of intoxication as a result of their drinking. What is set out above is substantially in accord with the testimony of all of the witnesses. There is some dispute as to the details which follow, as we will set out. There had been, previous to the day of the murder, some hostility between the deceased and the defendant. According to the testimony of Benny Sandoval and Anne Villalovis, the deceased and defendant argued off and on during the drinking party and that several times the deceased told the defendant to leave. Benny testified that the argument varied in intensity. He stated that at one point the deceased went into the kitchen and that he had an impression, rather vague because of the alcohol, that the deceased there secured a knife and started toward the defendant. Benny says he told the deceased not to cause trouble and he went back into the kitchen. Benny stated he did not actually see the deceased with a knife but thought he might have had one. Anne said she was in the kitchen most of the afternoon and that she had no knowledge of this happening. The defendant knew nothing of the incident. *94 According to Benny and Anne, the defendant at various times during the afternoon acted crazy and danced around the room in a strange way. They said that at different times the deceased and the defendant would argue and the deceased told defendant that he would have him arrested and that he wanted the defendant to leave. Benny Sandoval testified that he heard the deceased and defendant arguing and then went to sleep in a chair. He testified that he woke up some time later when he heard some noise. On awakening he saw Jess Villalovis slumped over bleeding. He heard Anne Villalovis screaming and saw her wrestling with the defendant. He states that the defendant had a knife in his hand at that time. He then ran from the apartment. Anne Villalovis testified that she had had quite a bit to drink. She says she spent most of the afternoon in the kitchen preparing a meal. She testified that the deceased entered the kitchen several times during the afternoon to get ice from the refrigerator, but she at no time saw him pick up a knife. Mrs. Villalovis stated that some time after the wife of the defendant joined the party the deceased again told the defendant to leave and he started to do so. He called his wife to go with him she refused. The defendant then left the apartment alone. He returned a few minutes later. The deceased seeing the defendant come through the door said he was going to call the police. The deceased then started towards the telephone. The defendant advanced and the two men met near the telephone. Mrs. Villalovis says she saw the defendant strike out at the deceased and the deceased then slumped to the floor. She did not see a knife in the hand of the defendant. Anne then says that defendant attacked his wife next and said that he was going to kill her. Mrs. Villalovis came to the aid of Mrs. Brooks, the three of them wrestled and the defendant pushed his wife down the stairs. Mrs. Villalovis then went to her husband and saw that he was bleeding she screamed. She says that she tried to wake her husband up but he seemed dead. She says that the defendant told her not to use the phone and that after that she did not see him again until after the police had arrived. She does not remember at any time seeing the defendant with a knife. Jay and Mary Smith occupy an apartment on the lower floor of the building where the crime occurred. On the day of the murder Mr. Smith testified that he did not know what was happening upstairs. Later in the afternoon he heard a knock on his kitchen door. He opened it and the defendant charged into the room swinging a knife, yelling that he had just killed Jess Villalovis and that he was going to kill Smith. The two men fought and Mr. Smith states he knocked the knife out of the defendant's hand and it flew under the stove. Smith then hit the defendant and knocked him out the door. The defendant, Brooks, testified in his own behalf. He admitted that there had been some trouble between himself and the deceased prior to the day in question but denied that there was any argument between them that day. He also said that the deceased did not tell him to leave the apartment during the drinking party. He says that he had quite a lot to drink during the afternoon. He states that the deceased started laughing at him so he thought he had better go. He called to his wife to come with him and the two of them started to leave. He says his wife was walking in front of him and she suddenly stopped and he accidently ran into her and knocked her down the stairs. He remembers going to help his wife and then he remembers nothing until the police arrived. The police came on the scene at about 7:45 p.m. They found the wife of the defendant at the bottom of the stairs on the inside of the building. The defendant was in his apartment. Anne Villalovis was sitting at the kitchen table in her apartment and Jess Villalovis was lying dead a few feet away in a pool of his own blood. The knife, a common kitchen variety, that the defendant attacked Mr. Smith with *95 was found by the police under the stove in the Smith apartment. At the trial Dr. Newman, M.D., testified that it could easily have been the murder weapon. It fit well into the wounds in the body of Jess Villalovis which caused his death and it had blood on it of the same type as that of the deceased. Mrs. Villalovis testified that the knife did not come from her kitchen and as far as he knew it did not belong to her husband. There were no distinguishable fingerprints on the knife. From substantially this testimony the defendant was convicted. On this appeal he alleges four specifications of error. The first has to do with the court's instructions to the jury concerning the effect of intoxication in relation to the crime of murder. The Montana law relating to the effect of intoxication on the guilt of a defendant is set forth in R.C.M. 1947, § 94-119, subd. 1: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his being in said condition. But, whenever the actual existence of any particular purpose, motive, or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." This statute was given to the jury verbatim in the first paragraph of the court's instruction 33. The second paragraph of this instruction reads: "If and when the proof shows that the defendant unlawfully killed a human being, and if the evidence also shows that at the time of the mortal assault the defendant was intoxicated, the jury is permitted and ought to consider such evidence of intoxication for the purpose of determining the purpose, motive, and intent with which the act was done." The defendant assigns as error the giving of the following two instructions: "No. 43. You are instructed that intoxication on the part of the accused in a prosecution for homicide should be taken into consideration not for the purpose of excusing or mitigating the killing, but for the purpose of determining whether the accused was capable of entertaining the purpose, intent, or malice, which is an indispensable ingredient in a charge of First Degree Murder." "No. 44. You are instructed that if a person who is charged with Murder in the First Degree was intoxicated when the offense was committed to such an extent as to render him incapable of entertaining the purpose, intent or malice requisite for First Degree Murder, the crime is reduced to Second Degree Murder." Defendant asserts that the giving of these instructions was prejudicial error because they amounted to a specific direction to the jury to find him guilty of second degree murder if they could not find him guilty of first degree murder because of his state of intoxication at the time of the killing, thus precluding a verdict of manslaughter. Instructions 43 and 44 seem to be taken from the case of State v. Palen, 119 Mont. 600, at page 608, 178 P.2d 862, at page 866, wherein this court said: "It is well settled that intoxication on the part of the accused in a prosecution for homicide should be taken into consideration, `not for the purpose of excusing or mitigating the killing, but for the purpose of determining whether the accused was capable of entertaining the purpose, intent, or malice, which is an indispensable ingredient of certain grades of the offence.' 26 Am.Jur., Homicide, sec. 118, p. 235. And the clear weight of modern authority is to the effect that if a person who is charged with murder in the first degree was intoxicated when the offense was committed to such an extent as to render him incapable of entertaining the purpose, intent or malice requisite for first degree murder, the crime is reduced to second degree murder. See 13 Rul.Cas.Law, sec. 18, p. 717 et seq. "Deliberation and premeditation added to the unlawful killing with malice aforethought *96 constitutes murder in the first degree. State v. Fisher, 23 Mont. 540, 59 P. 919; State v. Cates, 97 Mont. 173, 33 P.2d 578. And `the purpose to kill may be formed the moment before it is executed as well as for an hour or a day, and still the act be premeditated.' Id., and see People v. Bellon, 180 Cal. 706, 182 P. 420. "But as above noted, one who is intoxicated to the extent of being deprived of mental capacity to deliberate or premeditate cannot be guilty of murder in the first degree unless he formed the purpose to kill before becoming intoxicated." The court halted their discussion at this point as in the Palen case the question of the distinction between murder and manslaughter, in relation to the possible effects of intoxication, was not there in issue. However, the words of the court in that case as embodied in Instructions 43 and 44 do not preclude a conviction of manslaughter if the possibility of such a conviction is placed before the jury. The court instructed the jury as to what constitutes the crime of manslaughter and defined its elements to them. In addition to this the court gave the following instructions: "No. 32. If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree." "No. 53. The court instructs the jury that you cannot find the defendant guilty of murder in the first degree unless you find from the evidence that, at the time the fatal stabbing occurred, there was a specific intent existing in the mind of the defendant to take the life of the deceased, and that the stabbing was done by him with that purpose, and that such purpose was formed deliberately and premeditatedly, with malice as defined in these instructions, and that the mind of the defendant was fully conscious of the design to kill, and was not the immediate result of rashness, negligence or impetuous temper. "If you find from all the evidence that there was no specific intent on the part of the defendant to kill Jesse Villalovis, and that no such intent can be reasonably inferred from all the evidence, then the killing would be murder in the second degree or manslaughter." When the instructions are read as a whole, it is seen that the jury was instructed that if they found that the killing of Jess Villalovis was unlawfully done by the defendant with deliberation, premeditation and malice aforethought the defendant is guilty of murder in the first degree. If the jury believed that the killing was unlawfully done by the defendant with malice aforethought, but not deliberate and premeditated, or that defendant was incapable of premeditation and deliberation, because of his state of intoxication at the time of the killing, the crime is second degree murder. If they found that the killing was unlawfully done by the defendant without malice or he was so intoxicated at the time of the killing that he was incapable of harboring malice aforethought, the crime is manslaughter. This is a correct statement of the law. R.C.M. 1947, §§ 94-119, 94-2501, 94-2503, 94-2507; State v. Laughlin, 105 Mont. 490, 73 P.2d 718; State v. Stevens, 104 Mont. 189, 65 P.2d 612. The whole of the law on a subject cannot be given in one instruction. In *97 determining the effect of given instructions, all instructions must be considered as a whole and if they fairly tender the case to the jury, the fact that one or more instructions, standing alone, is not as full or as accurate as it might have been is not reversible error. State v. Watson, 144 Mont. 576, 398 P.2d 949; State v. Stoddard, 147 Mont. 402, 412 P.2d 827; State v. Noble, 142 Mont. 284, 384 P.2d 504. The jury was aware of this by virtue of Instruction 9 which reads: "No. 9. If in these instructions any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by the Court, and none must be inferred by you. For that reason, you are not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions as a whole, and are to regard each in the light of all the others. "The order in which the instructions are given has no significance as to their relative importance." It appearing that the jury was adequately instructed as to the effect, if any, that intoxication had on the guilt of the defendant we find that the giving of instructions 43 and 44 was proper. In his second specification of error the defendant seeks a new trial because the district judge refused his offered instructions relative to self-defense. Under Montana law if a homicide is to be justified by self-defense there must be evidence that the party killing acted under the influence of a reasonable fear that someone was going to be murdered or seriously injured. R.C.M. 1947, §§ 94-2513, 94-2514; State v. Jennings, 96 Mont. 80, 28 P.2d 448, 121 A.L.R. 375; State v. Fine, 90 Mont. 311, 2 P.2d 1016. In this case there is no evidence whatever that the defendant acted under a reasonable apprehension of death or great bodily harm. The witnesses for the State gave no indication that the defendant did the killing in fear nor did the defendant himself claim that he acted under any fear of harm. Instructions must have relation to the facts given in a particular case. State v. Evans, 60 Mont. 367, 199 P. 440. Although instructions may state a correct principle of law, if they are not based upon or in conformity with the issues or facts raised or supported by the evidence they ought not to be given. State v. Smith, 57 Mont. 563, 190 P. 107; State v. Mitten, 36 Mont. 376, 92 P. 969. In this case Judge McClernan was correct in refusing to instruct on self-defense. Defendant claims that the prosecutor in his closing argument to the jury made improper remarks concerning the possibility of parole should the defendant be convicted. He states that these remarks caused the jury to return an improper verdict of guilty fixing punishment at ten years, "without parole". Nowhere in the record is there any indication that such remarks were made. The closing arguments of counsel were not transcribed and transmitted to this court. When error is to be predicated on statements made in argument the complained of remarks should be made to appear in the record so that this court may know what actually took place, otherwise they cannot be assigned as error. State v. Stevens, 119 Mont. 169, 172 P.2d 299; State v. Totterdell, 135 Mont. 56, 336 P.2d 696. In this case there could not have been any prejudice to the defendant even if such improper remarks were made. When the jury returned its first verdict imposing a time sentence "without parole", the trial court properly refused it as only the parole board, and not a jury or the court, has the authority to decide whether a prisoner shall be paroled. R.C.M. 1947, § 94-9832; Goff v. State, 139 Mont. 641, 367 P.2d 557; State ex rel. Herman &amp; Roy v. Powell, 139 Mont. 583, 367 P.2d 553. The jury then deliberated further and returned a verdict which left the sentence to the discretion of the court. As the court imposed *98 the sentence, there could be no prejudice to defendant resulting from any prosecutor's argument concerning punishment. Lastly, defendant claims that the sentence of 40 years in the state prison was unduly harsh and unreasonable in this case. Concerning this issue this court has said: "* * * if the fixing of the degree of the offense as fixed finds support in the evidence and if the punishment is within the maximum limits fixed by law, then we cannot substitute our judgment for that of the trial judge. We are at liberty to interfere only in the event that there has been a clear abuse of discretion or a failure to follow the law." State v. Palen, 120 Mont. 434, 186 P.2d 223. The degree of the offense is supported by the evidence. The sentence imposed by the trial judge is authorized by R.C.M. 1947, § 94-2505. There is no error on this point. The judgment is affirmed. JAMES T. HARRISON, C. J., and HASWELL, ADAIR and CASTLES, JJ., concur.

December 28, 1967

cf29920d-0be6-4f1b-9a30-ce15316b8e0b

RICKL v BRAND S LUMBER CO

N/A

13544

Montana

Montana Supreme Court

No. 13544 IN THE SUPREME COURT OF TIE STATE OF I4ONTANA 1977 ELLEN J. RICKL, Plaintiff and Xespondent, BRAND S. LUMBER COMPANY, a corporation, Defendant and Appellant: Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Robert L. Kelleher argued, B illings, Montana For Respondent : Leonard H. McKinney argued, Lewistown, Montana Submitted: January 21, 1977 Decided: CEfi 1 6 ?Qn -.-+ Filed: -'k[3i:.k M r . Justice John Conway Harrison delivered the Opinion of the Court. This i s an appeal from an award of damages by the d i s t r i c t court, Fergus County, s i t t i n g without a jury. Plaintiff Ellen J. Rick1 owned a piece of land adjacent t o land on which defendant Brand S. Lumber Company had secured consent t o cut timber. The lumber company admitted by stipulation that it had gone upon the r e a l property belonging t o plaintiff and cut 208,000 board f e e t of timber. The sole issue a t t r i a l and on appeal i s the measure and amount of damages. The d i s t r i c t court found these facts: 1) Plaintiff did not enter into any contract t o s e l l timber and did not want the timber disturbed. 2) The trespass was not w i l l f u l nor malicious but there was indication of lack of due care. 3) The land was damaged as a result of the logging. 4) The f a i r value of the timber taken was $25 per thousand board feet stumpage or $75 per thousand board feet a t the m i l l . The court's conclusions of law held: 1) Plaintiff suffered loss 05 the timber removed and detri- ment t o the r e a l property not easily translatable t o money damages. 2) A damage award based on stumpage value would give defendant the benefit of its own wrong. 3) Plaintiff should recover damages i n the amount of $75 per thousand board f e e t , together with costs. In the d i s t r i c t court plaintiff argued section 17-503, R.C.M. 1947, which grants treble damages for injury t o trees where the trespass was other than casual or involuntary was the appli- cable statute. The d i s t r i c t court granted damages based on actual detriment only and not treble damages, Plaintiff abandoned argu- ment that section 17-503, R.C.M. 1947, was the proper s t a t u t e during o r a l argument to t h i s Court. The lumber company cited texts and cases from other states holding that the general measure of damages i s the value a t the time of conversion. Section 17-404, R.C.M. states: "The detriment caused by the wrongful conversion of personal property i s presumed t o be: 1. The value of the property a t the time of i t s conversion, with the interest from that time; or where the action has been prosecuted with reasonable diligence, the highest market value of the property a t any time between the conversion and the verdict, without interest, a t the option of the injured party; and, 2. A f a i r compensation for the time and money properly expended i n pursuit of the property." The highest value of the lumber i n the hands of the party that converted it i s the market value a t the m i l l . It i's clear the d i s t r i c t court f e l t that stumpage value alone would give the lumber company the benefit of i t s own wrong and encourage trespass and conversion, especially where there i s b e t t e r timber on adjoining land where the owner w i l l not s e l l . Since the d i s t r i c t court did not grant interest it is obvious that highest value was used. W e find no error. The judgment of the d i s t r i c t court i s affirmed. ,? W e Concur: L,, 1 4"" > ; : ; - E z 2 j N I/' && - d chief Just c e

February 16, 1977

32c1e726-79ee-4af1-8df4-0c4761da7a6d

Morrison v. City of Butte

150 Mont. 106, 431 P.2d 79

11121

Montana

Montana Supreme Court

431 P.2d 79 (1967) 150 Mont. 106 Robert MORRISON, Plaintiff and Respondent, v. CITY OF BUTTE, Montana, a Municipal Corporation, and Stanley Dugdale, Defendants and Appellants. No. 11121. Supreme Court of Montana. Submitted June 20, 1967. Decided August 15, 1967. *80 J. B. C. Knight and Wade Dahood (argued), Anaconda, William N. Geagan (appeared), Butte, for appellants. Holland &amp; Holland, David Holland (argued), William B. Freebourn (appeared), Butte, for respondent. JOHN C. HARRISON, Justice. This is an appeal from a judgment entered on the 9th day of November, 1965, for the plaintiff in the District Court of Silver Bow County. The case was tried before Judge Victor H. Fall sitting without a jury. Early in the evening of April 15, 1963, the defendant Stanley Dugdale, an employee of defendant City of Butte, hereinafter called the City, was called out by his foreman to drive a motor patrol to remove snow from Utah and Arizona Streets inside the City. Utah Street is actually a continuation of Arizona Street and the area over which he was working constitutes one street. No warning devices or flagmen were placed to give warning of this snow removal operation. Approximately one-half of the time Mr. Dugdale operated his grader on the left side of the street into the on-coming traffic. At about 10:30 p.m. that night the plaintiff, driving his 1955 Buick automobile, turned onto Arizona Street and proceeded in a southerly direction down a slight incline. He reached the intersection of Utah and Iron Streets, passed through it and across the tracks of the Butte, Anaconda &amp; Pacific Railway. When he was about forty feet south of the railway tracks he collided "head-on" with defendant's motor grader which was being operated on the left-hand side of the street against oncoming traffic. As a result of the collision the plaintiff sustained the injuries for which he seeks to recover here. The motor grader was bright yellow in color. It was lighted by a total of five lights. Facing forward were two lights located at the front of the cab, which were ten feet up from the roadway. Also facing forward was a "mold board light" mounted in front of the cab, near the bottom, and focused on the blade of the machine. All of these lights were white. In addition to these there were two red tail lamps mounted on the rear of the machine these could not be seen from the front. There was no beehive type revolving light, or mars light, mounted on the machine. The scene of the accident was well lighted. In addition to the regular electric arc street lights, one of which was on the same side of the street and just a few feet away from the scene of the accident, there were incandescent floodlights on the northwest and southeast corners of the intersection of Utah and Iron Streets. These floodlights were for the purpose of illuminating the railroad crossing. From the record it appears that it was snowing slightly at the time of the accident. The plaintiff testified at trial that *81 lighted objects could be seen at one hundred feet and distinguished at fifty feet. Other witnesses on behalf of both the plaintiff and defendant testified that visibility was not seriously impaired by the slight snow fall. Plaintiff says that he was proceeding south down the hill on Utah Street at a speed of between fifteen and eighteen miles per hour. He states that he did not see the grader until he was close upon it. When he did see it, it was too late to avoid the collision. Two witnesses who had come upon the grader earlier in the evening testified that it was difficult to see, as its headlights, being mounted so far above the road, were easily confused with the overhead street lights as they blended with them when they were driving towards the grader. The "mold board light" could not be seen from the front of the machine as it was behind the blade. Defendant, Mr. Dugdale, testified that while he was proceeding uphill in a northerly direction on Utah Street he saw the car of the plaintiff come onto the street about one and one-half blocks away, fishtail somewhat on the slippery pavement, and come toward him. He states that when the car was approximately 375 feet away he started to flash his lights and to raise the blade on the grader with the idea of backing out of the path of the oncoming car. He said that the grader was stopped and the blade was raised when the impact occurred. He estimated that the plaintiff was going from forty to forty-five miles per hour. Charles Bolton, who was approaching the grader from the rear at the time of the accident, testified that visibility was good and that the plaintiff's car was going considerably faster than fifteen to twenty miles per hour. His passenger estimated the speed of the plaintiff's car to be between thirty and thirty-five miles per hour. These are the only truly impartial estimates of the speed of the plaintiff's car at the time of the accident. Witnesses for the defendant testified that after the accident the plaintiff made statements that he was drunk, that he smelled of alcohol and appeared to have been drinking. However, the treating physician testified that any statements made by the plaintiff after the accident were unreliable due to his injuries. Plaintiff was able to produce witnesses who had been with him on the day and evening of the accident. They testified that he was sober when he was with them. Defendant contends that plaintiff was negligent as a matter of law in not seeing the motor grader as it was in plain sight and that such negligence was the sole proximate cause of the accident. In support of this he cites Boepple v. Mohalt, 101 Mont. 417, 54 P.2d 857. In this case the plaintiff was held to be the sole proximate cause of a collision between the car he was driving and a motor patrol owned by the state which was being operated on the wrong side of the road. The court there said, quoting from Johnson v. Herring, 89 Mont. 156, 295 P. 1100, "`The duty to keep a lookout implies the duty to see what is in plain view * * *.'" However, in that case the accident occurred in broad daylight and it was proved that the view was in no way obstructed; that the road grader was indeed in "plain sight." Here the situation was different. At the time of this accident it was snowing and it was dark. Artificial light was required to make the grader visible. The only lights that could be seen by the plaintiff on the grader were white and mounted ten feet up from the roadway. It appeared from the testimony of two witnesses that the lights of the scraper, high above the level of the pavement appeared to be in line with the street light of the same color along the street. From this, the inference that a dangerously deceptive situation was presented could fairly be drawn even though the accident area was well-lighted. Substantially on the basis of these facts, the court below held that the City was negligent in not having the grader properly lighted and in not giving other *82 adequate warning of its position. This is within the permissible limits consistent with the testimony. Where facts are found by the trial court sitting without a jury this court is bound by such findings of fact unless they are clearly contrary to the evidence, Hudon v. City of Butte, 111 Mont. 210, 107 P.2d 882; Duffie v. Metro. San. &amp; Storm Sewer Dist., 147 Mont. 541, 417 P.2d 227; Studer Const. Co. v. Rural Special Improvement Dist., 148 Mont. 200, 418 P.2d 865. The lower court determined that the plaintiff was driving in a cautious and prudent manner and maintained a proper lookout. A serious doubt as to these facts is raised, especially in view of the testimony as to the plaintiff's speed at the time of impact given by two impartial witnesses. However, the plaintiff testified that he was driving more slowly. Thus, there is a conflict in the testimony from which different conclusions could be drawn. The credibility of witnesses and the weight to be given their testimony are for the trial court, Ballenger v. Tillman, 133 Mont. 369, 324 P.2d 1045; Notti v. Clark, 133 Mont. 263, 322 P.2d 112. This court will not overturn the holding or findings of a trial court unless there is a decided preponderance of the evidence against them, and, when the evidence furnishes reasonable grounds for different conclusions, findings will not be disturbed, Bostwick v. Butte Motor Co., 145 Mont. 570, 403 P.2d 614. An accident report filed by defendant Dugdale with the Butte Police Department was admitted into evidence. The defendant objected on the grounds that this report was privileged, confidential and inadmissible under section 32-1213 and 32-1215, R.C.M. 1947. The overruling of the objection is assigned as error. R.C.M. 1947, § 32-1213, reads, in part: "(a) All required accident reports and supplemental reports shall be without prejudice to the individual so reporting and shall be for the confidential use of the board * * *. "(c) No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident * * *." R.C.M. 1947, § 32-1215, reads: "Any incorporated city, town, village, or other municipality may by ordinance require that the driver of a vehicle involved in an accident shall also file with a designated city department a report of such accident or a copy of any report herein required to be filed with the supervisor. All such reports shall be for the confidential use of the city department and subject to the provisions of section 32-1213." In view of the intent of the above two statutes the ruling of the trial judge was prejudicial to the appellants' case even though this was a case heard by the court without a jury. When the objection was made by the appellant to the admission of the accident reports, the court said: "The Court: Maybe they can't be used here but they are used in my Court and I see nothing confidential about reports. You have an exception. We have a running feud over at Helena on that proposition and I order the police and the patrol to bring their records, and they bring them in, under protest, this is true, but I don't know why they should be given any halo sanctity or anything of that kind. It will be received for what they are worth, proceed." The legislature makes the laws of this state. It is the court's duty to interpret those laws and not to judicially repeal legislation that does not conform to its position of what is right in the law of evidence. The uniformity of other courts have upheld objection to admission of accident reports under statutes similar to that in Montana. Sprague v. Brodus, 245 Iowa 90, 60 N.W.2d 850, 853; Zollars v. Barber, 140 Cal. App. 2d 502, 295 P.2d 561; Clark v. Reichman, 130 Colo. 329, 275 P.2d 952; *83 Henry v. Condit, 152 Or. 348, 53 P.2d 722, 103 A.L.R. 131; Hastings v. Thurston, 100 Ariz. 302, 413 P.2d 767; 97 C.J.S., Witnesses, § 264, p. 757; 8 Wigmore, 3rd Ed., p. 766. In a recent Federal case Stephenson v. Millers Mutual Fire Ins. Co., 236 F. Supp. 420, 422 (U.S.D.C. 1954), under a similar statute the court held that an accident report was confidential and inadmissible. The court there stated: "* * * The State has a justifiable interest in encouraging the individual reporting to make a truthful, accurate, and complete report without fear of the report subsequently being used against him in a lawsuit." Respondent urges that, even though technically error, that no prejudice resulted. Respondent points out that the trial court made a finding as follows: "The position on Utah Avenue of plaintiff's motor vehicle when it was first observed by the defendant, Stanley Dugdale, is in conflict in the evidence. The court makes no findings in respect thereto as being immaterial under the other findings made herein." This finding so-called only highlights the error committed by the trial court. The conflict referred to was created by the erroneous admission into evidence of the report. While it is the general rule that the burden is upon appellants to show prejudice, Conway v. Fabian, 108 Mont. 287, 89 P.2d 1022, nevertheless when the trial court deliberately ignores the law, prejudice may be presumed. If this were not so, any trial court sitting without a jury, could, by the simple expedient of making a finding, ignore any law. Such, of course, cannot be. In 5A C.J.S., Appeal and Error, § 1728, p. 1010, the general proposition is discussed in part by the author as follows: "* * * The admission of incompetent evidence is reversible error even though there is sufficient evidence to support a judgment, if the competent evidence in the case does not demand such a judgment." Thigpen v. Batts, 199 Ga. 161, 33 S.E.2d 424. In other words, what has been referred to as a presumption that the trial court based its findings upon only competent evidence, may be rebutted by a showing that the competent evidence does not demand such a finding. In Finlen v. Heinze, 28 Mont. 548, 569, 73 P. 123, quoting from Montana Ore Purchasing Co. v. Butte &amp; Boston Consol. Mining Co., 25 Mont. 427, 65 P. 420, the rule is stated in part: "`* * * Presumably the trial court based its findings upon such of the evidence before it as was competent, excluding from consideration such as had no weight or relevancy. The other evidence in the record, the competency of which is unquestioned, was sufficient to justify the findings, and the order will not therefore be reversed.'" Reverting now to the instant case, the deliberate ignorance of the law does not attach any presumption that the trial court based its findings only on competent evidence. Plaintiff, in rebuttal, called an engineer to the stand to testify concerning whether the mold board light on the grader could be seen from the front. Defendant objected that this was not proper rebuttal since plaintiff had introduced evidence regarding the lights on the grader in his case in chief. Plaintiff argued that the purpose of this testimony was to rebut the testimony of defense witnesses who said the mold board light could be seen from the front. The court over-ruled the objection and accepted the testimony for this purpose. Whether rebuttal evidence should be admitted is a matter which rests largely within the discretion of the trial court, and only when there has been an abuse of this discretion may there be review of its decision. Spurgeon v. Imperial Elevator Co., *84 99 Mont. 432, 43 P.2d 891; Puutio v. Roman, 76 Mont. 105, 245 P. 523. In this instance, there appears to be no abuse of this discretion requiring review by this court. But one remaining matter needs discussion since this matter goes back for a new trial. Testimony about changes made after the accident in lighting on snow removal equipment used by the city was received over objection. In view of what we have said hereinbefore, on retrial such evidence should not be admitted. For the foregoing reasons, the judgment is reversed and a new trial granted. It is so ordered. JAMES T. HARRISON and ADAIR and CASTLES, JJ., concur.

August 15, 1967

b0b15866-cb4a-4551-861c-5fce25f4188f

State v. DISTRICT COURT OF THIRTEENTNTH JUDICIAL. DIST.

432 P.2d 93

11376

Montana

Montana Supreme Court

432 P.2d 93 (1967) The STATE of Montana ex rel. Arnold A. BERGER, Special Assistant County Attorney of Big Horn County, Montana, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF BIG HORN, and the Honorable E.E. Fenton, Presiding Judge, Respondent. No. 11376. Supreme Court of Montana. Submitted September 7, 1967. Decided September 28, 1967. Rehearing Denied October 17, 1967. Arnold Berger (argued), Billings, for relator. Charles F. Moses (argued), Billings, for respondent. PER CURIAM. This is an original proceeding brought by the prosecuting attorney of Big Horn County for a writ of supervisory control seeking this court's jurisdiction to reverse an order of the District Court of July 28, 1967, in District Court Cause 962, State of Montana v. Clara Thomas and Robert G. Thomas. The order referred to suppressed a certain oral statement made by defendant Clara Thomas as will appear hereinafter. The order was made by the District Judge granting a motion of the defense to suppress. On June 7, 1967, this court in an order and memorandum ruled that the district court was in error in suppressing a written statement used in a previous trial. (See *94 State v. Thomas, 147 Mont. 325, 327, 328, 413 P.2d 315, for the written statement, and see our Order and Memorandum reported in State ex rel. Anderson v. District Ct., 149 Mont., 429 P.2d 633.) (We also note that our Order was the subject of an application by Clara Thomas to enjoin the use of the written statement in the United States District Court, Billings Division, in Civil Cause No. 669. Therein the Court in an Order and Memorandum opinion reported in 24 St. Rep. 541 declined jurisdiction because State procedures had not been completed.) The oral conversations or statements, the subject of the instant application, were made prior to the written statements referred to above. A hearing was had before the district judge, a transcript of the proceedings made, findings of fact and conclusions of law made, and the order herein referred to resulted. We issued an order to show cause directed to the district court, such order being in the alternative to either vacate the order or appear and show cause why it was not vacated. A return and answer were filed and oral argument had. Basically two issues were argued. The first that our previous decision as to the written statement is the law of the case. We shall not dwell upon this. The second, that the motion to suppress the oral statement was improperly granted because the testimony demonstrated that the oral statement was voluntarily made by Clara Thomas at a time prior to any "focus" as a particular suspect; and that, furthermore she was properly advised of her constitutional rights and knowingly and intelligently waived them. To relate the fact situation with as much brevity as possible we shall quote the trial court's findings one through ten: "1. The Information herein charges the defendants with Murder in the Second Degree committed by killing Frank Tschirgi on or about the 10th day of March, 1963. "2. The official investigation of the death of Frank Tschirgi was conducted by Roy G. Reilly, the then Sheriff of Big Horn County, Montana, commencing on the morning of March 11, 1963, and on the afternoon of that date said Sheriff became convinced that death was not caused by suicide, that Frank Tschirgi had been shot by some other person, and that his death was caused by two gunshot wounds in his breast. "3. That said Sheriff interviewed all of the persons who, on either March 10, 1963, or March 11, 1963, were present on the ranch where the death occurred, and he arrived at the conclusion that none of these persons interviewed by him had any connection with the death of Frank Tschirgi. "4. That Clara Thomas was present on the above-mentioned ranch on March 10, 1963, but she was not present there when the Sheriff arrived on the morning of March 11, 1963, and that the Sheriff was then informed that she had been taken to a hospital at Sheridan, Wyoming, because of having taken sleeping pills. "5. That during said investigation a Mrs. Jackson, `the last person to see Frank Tschirgi alive,' related to the Sheriff a conversation she had had with the deceased on the evening of March 10, 1963, and stated to the Sheriff that as Frank Tschirgi was leaving her home he told her he was going to see Clara about a dog; that Mr. Reilly was uncertain whether, in relating another part of this conversation to him, Mrs. Jackson's exact words were that `Frank Tschirgi told her that he was going over to fight with the damn sister', and that he did not know whether the word `damned' or the word `fight' was used by her. "6. That on March 12, 1963, Sheriff Reilly stated to Robert G. Thomas and David Thomas that he wished to talk to Clara Thomas and asked them when it would be possible to talk to her; that he also talked with them about Frank's passing and according to his best recollection of the conversation they said, `Yes, when Clara gets well she wants to tell you.' That on March 13, 1963, Robert G. Thomas called Sheriff Reilly by telephone and informed him that he could talk to Clara Thomas. *95 "7. That Clara Thomas had not authorized Robert G. Thomas to call the officers and tell them they could question her, that Robert G. Thomas had no conversation with her concerning the interview by Mr. Reilly and Mr. Wilson, and that she had no knowledge of such interview prior to the arrival of the officers at the hospital. "8. That following said telephone call, Mr. Reilly and Robert H. Wilson, the then County Attorney of Big Horn County, Montana, went to Sheridan, Wyoming, arriving at the hospital between five and six o'clock on the afternoon of March 13, 1963; that after a conversation in the hospital with Robert G. Thomas and David Thomas, the Sheriff and County Attorney went to the room of Clara Thomas, and Mr. Wilson told her that they were down there investigating the death of Frank Tschirgi, `and he told her of her rights, that she didn't have to say anything if she didn't want to and that she could have the aid of an attorney.' "9. That at the time she was questioned in the hospital by the Sheriff and County Attorney, Clara Thomas had not been placed under arrest and was not in official custody, but that she was confined as a patient in the hospital where she had been in a state of unconsciousness, and that the progress of her recovery was such on the morning of the day on which she was interrogated her attending physician then stated that if she made normal progress he felt she would be coherent enough or recovered enough to answer some limited questions. "10. That neither the said County Attorney or the Sheriff informed Clara Thomas that she had the right to have a lawyer present with her during their interrogation, and that she was not informed by either said County Attorney or said Sheriff that if she was indigent a lawyer would be provided for her prior to any interrogation." Finding No. 11 was as follows: "That, as testified by Mr Reilly, he did not have any knowledge of who had killed Frank Tschirgi, but that his investigation had disclosed nothing that would suggest any incrimination of any person who was present at the ranch at the time of the homicide, other than Clara Thomas; and that by reason of the incriminating circumstances pointing to Clara Thomas, hereinbefore set forth in these Findings, together with the fact that the Sheriff's investigation had revealed no reason to suspect any other person, his investigation was then necessarily focused upon Clara Thomas." That portion of Finding No. 11 concluding that the investigation had necessarily "focused" upon Clara Thomas is what we find erroneous. This so-called finding of fact is necessarily a conclusion of law based upon the District Court's concept of the meaning of the United States Supreme Court's decisions in the Escobedo and Miranda cases which will be hereinafter discussed. First, it is clear that Clara Thomas was not "in custody" in any legal sense of the word. Nor do we find that the defendant, at the time, was otherwise deprived of her freedom of action in any significant way. Finding No. 9 above-quoted does no more than suggest that confinement as a patient might somehow have limited her action in a significant way, but we find otherwise. Indeed, however, our specific inquiry narrows down to, not whether Clara Thomas was confined or her action limited in any significant way; but rather whether in the investigatory process the "accusatory stage" or "focus" had been reached. In Escobedo v. State of Illinois, 378 U.S. 478, 490, 84, S.Ct. 1758, 1765, 12 L. Ed. 2d 977, the court said: "We hold, therfore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not affectively warned him of his absolute constitutional right to remain silent, the accused has *96 been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, at 342, 83 S. Ct. 792, at 795, 9 L. Ed. 2d 799 and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." In Miranda v. State of Arizona, 384 U.S. 436, 444, 457, 86 S. Ct. 1602, 1612, 1619, 16 L. Ed. 2d 694, 10 A.L.R.3d 974, the Court said: "Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. * * * "The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features incommunicado interrogation of individuals in a police-dominated atmosphere resulting in self-incriminating statements without full warnings of constitutional rights. (Emphasis added.) * * * "It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." We narrow our inquiry here because, with the findings and conclusion of the district judge a well-written memorandum was filed and made available to us. The judge dwelled upon the position of the prosecution in this manner: "It is the position of the prosecution that Miranda v. State of Arizona, and Escobedo v. State of Illinois, 378 U.S. 487, 490, 84 S. Ct. 1758, 12 L. Ed. 2d 977, are to be construed as holding that, before interrogating a person suspected of crime, the officers of the law are legally bound to protect the constitutional rights of the suspect by giving him the above-quoted warning if he has been taken into custody; but that the same officers, interrogating the same person, suspected of the same crime are not legally bound to protect the constitutional *97 rights of the suspect by giving him the above-quoted warning, or any warning if the suspect has not been taken into custody. This position of the prosecution gives to the officer the power to either grant or withhold the constitutional rights of the suspect, depending upon whether the officer elects to interrogate before or after taking the suspect into official custody. "It is the view of the undersigned that no such arbitrary and capricious standard was intended by the United States Supreme Court as the test for granting or withholding constitutional rights, and that any suspect questioned by the officers when an official investigation is focused upon that suspect, is entitled, even though he or she is not in custody, to the same warning and the same constitutional rights as the suspect who has been taken into custody." The court then went on to reason that the interrogation had "focused" on Clara Thomas and that since the "magic words" of Miranda were not spoken the oral statements became inadmissible as evidence and thus were suppressed. At the hearing on the motion to suppress, the sheriff was examined in great detail concerning his investigation. Defense counsel was obviously trying to have the sheriff eliminate all other suspects than Clara Thomas, so that finally when the sheriff and county attorney interviewed her, the "focus" had been achieved under the Escobedo and Miranda rules. In Miranda, supra at p. 477 of 384 U.S., at p. 1629 of 86 S.Ct., the court said: "Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S. Ct. 1758, 1765, 12 L. Ed. 2d 977, 986. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding." The sheriff testified, in response to questions by the prosecution, that: "Q. Then the following day, the 12th, after you had reached some tentative conclusion that he was shot by other than or killed by other than self inflicted wound, you then proceeded to the ranch to commence your investigation to carry it forth, is that right? A. That is true. "Q. Now as you talked to the various persons you apparently eliminated them in your mind, did you not, as perpetrators of the deed, is that correct? A. Yes, to a certain extent I did. "Q. At least you found nothing in anything any of them had said that would be suggestive of incrimination of that particular individual, did you? A. No, I didn't find out anything. "Q. And this includes David and Robert Thomas too when you talked with them? A. That's right. "Q. And for all practical purposes at those times you had no reason to suspicion them, did you? A. No. "Q. Now did that same thing prevail, I mean was your attitude the same when you went to talk to Clara Thomas up until the time that she had made certain admissions to you? A. Yes. I don't know, didn't have any idea who. "Q. In other words there are hundreds of thousands of other people that could have committed this offense as far as you were concerned up until that time, is that right? A. That's right. "Q. And you had, and you were doing this investigation to see if anybody knew anything about it? A. That's right." To accept the district court's finding No. 11 would be to say that the last person questioned in an investigation would be the "focal" one. Up until Clara's statement, the officers were groping for information, narrowing the field it is true; but certainly not achieving a "focus" in a "police dominated *98 atmosphere"; nor in any manner coercing a statement. This, we feel is just a part of the "inquiry of persons not under restraint" as discussed in Miranda. In this opinion, we have not attempted to fully discuss rules pronounced in Escobedo and Miranda. Indeed, as we read those cases, the standard involved still remains whether or not the statement was voluntarily made in an intelligent manner, or put another way whether any coercion was used to overcome the freedom of choice. We find then that the district court was in error in ordering the oral statements suppressed, and that a writ of supervisory control should issue; such writ to set aside the order of suppression. It is so ordered.

September 28, 1967

03cdc6c1-cbea-4b91-9b40-101c6d137170

State Highway Commission v. Kinman

430 P.2d 110

11287

Montana

Montana Supreme Court

430 P.2d 110 (1967) State of Montana, acting by and through the STATE HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. B.C. KINMAN and Mary Ann Kinman, husband and wife, Defendants and Respondents. No. 11287. Supreme Court of Montana. July 5, 1967. Daniel J. Sullivan (argued), Helena, for appellant. Joseph P. Monaghan (argued), Butte, John W. Bonner (argued), Helena, for respondents. JOHN C. HARRISON delivered the Opinion of the Court. This proceeding involves a condemnation action involving property located high above Butte, Montana, astride the Continental Divide. The Divide serves as a natural boundary between Silver Bow County on the west and Jefferson County to the east. The taking involved some 4.3 acres of the Nellie Kinman Quartz Lode Mining claim upon which the respondents now reside, such property being located partly in both counties. To recite the tortuous trail of this litigation since its inception in November 1963 would be interesting though it is unnecessary to the issue herein presented. Suffice to say that some eight or nine district judges' names appear in the record and as yet no final determination of compensation has occurred. From the very beginning, when by stipulation the parties to the action changed the venue from Jefferson County to Silver Bow County, the necessity for the road has been admitted and agreed to. On July 19, 1965, a default judgment was entered against the respondents, the respondents inexcusably failing to appear. We note also that respondent Kinman is and has been an attorney at law, admitted to practice on November 18, 1949. As such he is chargeable with knowledge of the law and particularly for candor and integrity in open court stipulations referred to hereinafter. Three days later a hearing was held before the Honorable District *111 Judge Sid Stewart to determine compensation, and on that same date Judge Stewart rendered his findings of fact, conclusions of law and judgment, putting the State in possession on September 1, 1965. After numerous motions and the disqualification of Judge Stewart by the respondents, the cause was referred to the Honorable Philip C. Duncan, District Judge who on July 30th set aside the default by approving a stipulation entered into between the parties, but in so doing the court, by virtue of the stipulation upheld the order of possession previously entered and permitted the State to proceed with the construction of the project; and provided further that Mr. and Mrs. Kinman should vacate the premises by at least September 1, 1965. This order was modified by Judge Duncan on September 10, 1965, to allow the respondent Kinmans to remain on the property until January 1, 1966. It is this order of September 10, 1965, that the State contends the respondents are in contempt of for they have failed to remove themselves from the premises as agreed upon both by stipulation and as provided in the Order. The State filed an affidavit of contempt on September 28, 1966, which ultimately came to a hearing in combination with the State's motion to set aside the stipulation entered into on July 30, 1965, and which formed the basis for the court's Order of September 10, 1965. These matters were heard by the Honorable Thomas Dignan, District Judge, for in the meantime Judge Duncan had disqualified himself and the Honorable Judge Jack R. Loucks, had also disqualified himself, and Judge Dignan had been called in. After a hearing Judge Dignan denied the State's request to find Mr. Kinman in contempt and held that he could remain in possession until after the jury trial. From this Order the State appeals. The Appellant lists three specifications of error with respect to Judge Dignan's actions, contending that the court was in error: (1) In refusing to set aside the sipulation; (2) In ordering possession to remain in the defendants; and (3) In absolving defendants from contempt. There were but two issues before Judge Dignan at the hearing held October 31, 1966. One was whether or not respondent B.C. Kinman was in contempt of the order of the court dated September 10, 1965, in refusing and willfully neglecting to obey said order, and secondly, whether the failure and refusal to carry out the stipulation dated July 30, 1965, and carried into the court's Order of September 10, 1965, entitled the State to have the stipulation of July 30, 1965, set aside and the default judgment reinstated. The district judge, however, at the time of the hearing went into the matter of the validity and merits of the court's order of September 10, 1965, even though no issue had been raised by either party thereto. Recalling that Judge Dignan did not enter either order it is at once evident that he attempted to exercise appellate jurisdiction over the actions of the judges who entered the orders, and in this particular he exceeded his jurisdiction. Article VIII, §§ 3 and 11, Mont. Constitution. Throughout the hearing, testimony was allowed concerning the construction program of the State, whether or not a two-lane or four-lane highway was to be constructed, and when. However, Judge Dignan recognized and ruled several times that "this court has no jurisdiction to amend that order of necessity." Again later in the hearing the court said: "Now the defendants have moved to amend the stipulation, which is denied. The defendants have moved the court to reconsider. The court does not have jurisdiction to reconsider anything that has gone on before, as most of the judges have ruled on these things. The court again states there is a necessity for that highway there * * *." Yet in considering the matter of contempt he said: "* * * Now if that motion had been brought in April at the time before the highway was completed, the *112 Court would consider it. But in view of the fact the highway was completed, the Court will not hold Mr. Kinman in contempt because it is an idle gesture, just no use for that. * * *" By his very words he recognized a contempt of the order yet by his consideration of extraneous facts he nullified it. Considering the entire record, its history, its parties, even though we find the district court was in error; yet the trial judge in good conscience was endeavoring to expedite a trial on the merits; that is, a trial to determine the value of the land taken. However, this overlooks the rights of the State of Montana. This State, in commendatory fairness, has endeavored to achieve possession while yielding other valid rights so that a hearing to determine value might be had. The State has been met with contemptuous disregard for its rights. The fact situation as indicated by the trial court in its comments in the record are such that the trial court should have found specifically respondents Kinman in contempt. The trial court actually made such a conclusion as hereinbefore indicated, but concluded that it was an idle gesture. Idle gesture indeed! Respondents' actions were a direct contemptuous flouting of their own stipulation, of direct court orders, and of valid and valuable rights of the State. As such this court cannot and will not ignore its duty to correct the error. Therefore to end this phase of the litigation, contempt is found. It should be remembered that after possession is granted the State the ultimate goal of the eminent domain proceedings are the value of the lands taken; that here a judgment as to value has been set aside conditionally. In this situation we feel justified in ordering that the above finding of contempt may be purged by the respondents in the manner hereinafter set forth and in no other way. Immediately upon receipt of a copy of this Opinion and Order, the respondents Kinman will forthwith vacate the premises, cease occupying the land taken, and yield possession without further delay. Such vacation of occupancy and yielding of possession will be had by August 15, 1967. The foregoing Order is a condition precedent to a jury trial to determine the value of the lands. Should the respondents fail to purge themselves of the contempt found in the time allowed, the aforementioned judgment as to value will be reinstated and further proceedings had in contempt. It is so ordered. Remittitur shall issue immediately. JAMES T. HARRISON and MR. JUSTICES ADAIR and CASTLES concur.

July 5, 1967

80e27518-ab63-4fe7-a6b4-a5748b930334

Avery v. City of Anaconda

428 P.2d 465

11173

Montana

Montana Supreme Court

428 P.2d 465 (1967) Mildred AVERY, Plaintiff and Respondent, v. THE CITY OF ANACONDA, a Municipal Corporation, Defendant and Appellant. No. 11173. Supreme Court of Montana. June 6, 1967. Poore, McKenzie, Roth &amp; Robischon, Butte, for appellant. McKeon &amp; Brolin, Anaconda, for respondent. CASTLES Justice. This is an appeal from a judgment entered on a jury verdict after an order denying a new trial was made. The jury verdict was for $6,663.15. On October 5, 1964, plaintiff tripped on a city sidewalk which had become cracked and uneven. She fell and sustained injuries. *466 Two days later she reported the accident to the city clerk and written notice was filed. Plaintiff sued for damages for injuries sustained as a result of the fall. She joined the City of Anaconda and Leonard Vainio, the owner of the Gnose Building. Ultimately the action against Vainio was dismissed on motion for summary judgment. The defendant City of Anaconda is appellant and will hereinafter be referred to as the City. The statement of issues contains fifteen separate items. Several of the issues concern conduct of counsel in certain respects that will not be separately discussed here, but in a new trial of the action counsel should take heed that the rules of conduct should be complied with. The issue determinative of this appeal concerns activities in the selection of the jury. A panel of twenty jurors was selected by the court. Counsel for Mrs. Avery then presented a motion to the court, in chambers, for authority to ask the prospective jurors the following question: "Are you, or is any member of your family, a stockholder in the Glacier Insurance Company, a Montana corporation, with its main office in Missoula, Montana?" The City objected and resisted the motion on the grounds that the facts which counsel for Mrs. Avery would seek to elicit by such a question do not constitute grounds for a challenge for cause under the law of Montana and, further, that such facts would not go to the disqualification of any of the jurors. "THE COURT: I would like to have the record show the feeling of the court in this matter, and that is that the motion made by the Plaintiff as such should be denied, for it is the feeling of the court that any such reference to insurance that the Plaintiff might make on voir dire might be reversible error; however, general questions involving prospective jurors being investors in any insurance company perhaps might not be, and the court does not feel that that in itself would in any way prejudice the jury in arriving at a verdict in this case, and feels that this is a proper question to prospective jurors." Counsel for the City thereupon advised the court and counsel for Mrs. Avery that the City would object to any and all questions of this character, and that it would move for a mistrial in the event a question such as that described by the Court were asked of any prospective juror. The first prospective juror examined by counsel for Mrs. Avery was Mrs. Anna Berry. Counsel for Mrs. Avery inquired: "Q. Now, I am going to ask you if you or your husband are the investors in any insurance companies?" At that time an objection was interposed by the City and a motion for mistrial presented. The motion was denied and the voir dire continued. This same question was asked of each of the twenty prospective jurors. In some instances, counsel for Mrs. Avery would ask the question as the last question of the prospective juror. The purpose of such questioning was obvious, improper and completely prejudicial. The law is well-settled in this state that the action of the lower court in permitting this type of questioning on voir dire was prejudicial and reversible error. In Robinson v. F.W. Woolworth Co., 80 Mont. 431, 443, 261 P. 253, 257, this court denounced such a practice and held that if a timely objection is made the court must sustain the objection, and stated: "* * * if objection had been made the first time the question [concerning business relations with an insurance company] was asked and we say now had that been done in this case the objection would have been valid, and, in that event, should have been sustained; to have done otherwise, in *467 such event, would have constituted prejudicial error." (Emphasis supplied.) From the date of the decision in the Robinson case this court has consistently and currently held that the injection of insurance into a personal injury case is reversible error. In Adams v. Misener, 113 Mont. 559, 131 P.2d 472, this court in quoting from the case of Tanner v. Smith, 97 Mont. 229, 33 P.2d 547, said: "`The rule is almost universally recognized that in actions for personal injuries or death the fact that the defendant is protected by indemnity insurance against liability for damages cannot, directly or indirectly, be injected into the case by evidence, argument or remarks, so as to influence the jury, and the violation thereof is ordinarily held to be reversible error.' [74 A.L.R. 849] In accordance with that rule, this court has often condemned the injection of the insurance feature into a personal injury case. Robinson v. F.W. Woolworth Co., 80 Mont. 431, 261 P. 253; Wilson v. Thurston Co., 82 Mont. 492, 267 P. 801; Wilson v. Blair, 65 Mont. 155, 211 P. 289, 27 A.L.R. 1235." The obvious purpose in the questioning of the prospective jurors concerning insurance was to convey to the panel the information that the City of Anaconda was insured against the risk of Mrs. Avery's fall. Counsel for Mrs. Avery was not content in his freedom to constantly inject insurance into the case. His examination of the panel on voir dire is contained in the transcript. Conduct of counsel in this examination of prospective jurors was irregular and prejudicial. He was permitted to make argumentative statements. He was permitted to insinuate prejudicial matters to the jury. He was permitted in effect to give testimony and present the contents of documentary evidence. Although objections were made to the conduct of counsel, at no time did the lower court admonish counsel or take any action to curb counsel's inflammatory actions. Although conduct of counsel is rarely cited as grounds for the reversal of a trial court judgment by this court, this court has in the past taken such action. In the case of Ralph v. MacMarr Stores, 103 Mont. 421, 62 P.2d 1285, this court granted a new trial to the defendant upon the grounds of misconduct of counsel which was very similar to the instant case. At page 437 of 103 Mont., page 1292 of 62 P.2d, the court commented that: "[I]t is apparent that much prejudicial matter was called to the attention of the jury. Of course, no one can say how much, if any, effect this matter did have upon the minds of the jury when considering their verdict. We are convinced that enough prejudicial matter found its way to the jury to justify the belief that the result may have been affected thereby. The cause should be tried in an orderly and legal manner and in accordance with recognized rules of court procedure. In order that that end may be achieved a new trial will be necessary." (Emphasis supplied.) By what we have said, the judgment is reversed, and a new trial granted. Since a new trial will be had, we will briefly comment on one other matter. The defendant sought to have one entry in a city book admitted into evidence. The trial court admitted it thus, but counsel for plaintiff, almost completely ignoring the court's ruling, finally managed to have the entire book displayed to the jury. We shall not comment further except to admonish counsel that recognized rules of court procedure must be followed. The judgment is reversed and the cause remanded for a new trial. JAMES T. HARRISON C.J., and DOYLE, ADAIR and JOHN CONWAY HARRISON JJ., concur.

June 6, 1967

f1663a0a-1d63-40c4-9255-0b7481d91707

KNOX CHOVANAK v SCHOOL DIST NO

N/A

13293

Montana

Montana Supreme Court

No. 13293 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CHARLES ED KNOX, Relator and Appellant, SCHOOL DISTRICT NO. 1, LEWIS AND CLARK COUNTY, MONTANA, Respondents and Respondents. Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Charles Petaja argued, Helena, Montana For Respondents: C. W. Leaphart, Jr.,argued; Helena, 'Montana. Submitted: January 18, 1977 Decided :F~EB 0 3 - M r . J u s t i c e John Conway Harrison delivered t h e Opinion of the Court. Relator. Charles Ed Knox appeals from denial of h i s p e t i t i o n f o r a w r i t of prohibition. Relator, a professional photographer i n Helena, petitioned the d i s t r i c t court, Lewis and Clark County, f o r a w r i t of prohibition ordering the School Board of School D i s t r i c t No. 1, Lewis and Clark County, t o d e s i s t and r e f r a i n from further proceedings i n the school d i s t r i c t ' s attempt t o secure bids f o r the taking of student photographs. After hearing, the d i s t r i c t court denied the p e t i t i o n based i n essence on i t s finding t h a t a school d i s t r i c t has the s o l e power and authority t o transact a l l f i s c a l business i n the d i s t r i c t and t o perform such f i s c a l duties t h a t a r e i n the best i n t e r e s t of the d i s t r i c t . Section 93-9201, R.C.M. 1947, provides t h a t a w r i t of pro- hibition: "* * * a r r e s t s the proceedings of any tribunal, corporation, board, o r person * ik when such proceedings a r e without o r i n excess of jurisdic- t i o n of such tribunal, corporation, board, o r person. I I I n S t a t e ex r e l . Fulton v. D i s t r i c t Court, 139 Mont. 573, 579, 366 P.2d 435, appears a f u l l discussion of the nature of t h i s w r i t emphasizing the "excess of jurisdiction" aspect: "'* * * the w r i t of prohibition would not r e s t r a i n a ministerial, executive o r administrative function, no matter how i l l e g a l the a c t thereunder may be so long a s the tribunal sought t o be restrained has j u r i s d i c t i o n of the subject matter i n controversy. A mistaken exercise of such tribunal' s acknowledged powers w i l l not j u s t i f y the issuance of the w r i t . ' " See also: Cases c i t e d i n Fulton and S t a t e v. Board of Medical Examiners, 135 Mont. 381, 339 P.2d 981. Here the School ~oard's jurisdiction clearly covers the area of concern, photographing students on school grounds during school time and involving, at least to some degree, teachers and administrators. The petition does not attack the subject matter jurisdiction of the Board, rather it alleges at most a mistaken exercise of the Board's powers. A writ of prohibition will not lie as a remedy to restrain an administrative action. The district court's denial of the writ is affirmed. We Concur: qAh3LqL5@ ~&ef Justice

February 3, 1977

2ac7bac0-c769-4d7d-869b-17c854fc5a9d

Blevins v. Weaver Const. Co.

432 P.2d 378

11144

Montana

Montana Supreme Court

432 P.2d 378 (1967) Bessie P. BLEVINS, Plaintiff and Appellant, v. WEAVER CONSTRUCTION COMPANY, Defendant and Respondent. No. 11144. Supreme Court of Montana. Decided October 13, 1967. Rehearing Denied November 1, 1967. Murphy, Robinson &amp; Heckathorn, James I. Heckathorn, Kalispell, argued, for appellant. Korn, Warden &amp; Walterskirchen, Merritt N. Warden, Kalispell, for respondent. JOHN C. HARRISON, Justice. This is an appeal from a jury verdict in favor of the defendant construction company, hereafter referred to as the respondent. On August 30, 1963, appellant was riding in the family pickup truck, driven by her husband, when the pickup became involved in a minor accident with a road grader being used by an employee of the respondent. The accident occurred about half-way through a 32 mile rebuilding and reconstruction job on what is known as the Lolo Pass road which leads into Idaho. The condition of the road was described by various contruction people as one of the roughest road jobs they had ever worked on. The respondent construction company was the general contractor for the Lolo Pass road and at the time of the accident was more than half way through their job. On the particular area where the accident occurred the respondent was graveling, watering and rolling the road preparatory to putting on an asphalt surface. The testimony showed that throughout the contruction work some 200 safety signs were in evidence. Some of these signs read "Road under contruction"; "35 miles per hour"; "slow"; "men at work"; "machines at work"; "surveyors at work", etc. In fact, the testimony revealed that over $8,000 was spent on signs for this project to warn motorists and protect the workers. On the *379 morning of the accident Frank McCloney was operating a road grader spreading gravel from windrows previously placed on the project. He was driving west and behind him going east was a water truck driven by one of respondent's employees. The windrows of gravel were so arranged that about every 2,000 feet there would be a break in the windrow. At the time of the accident the respondent's patrol had reached such a break and was in the process of turning around when the driver of the appellant's car attempted to pass the grader and the collision occurred. McCloney testified that just before reaching the break in the windrow he lifted the blade of the grader, pulled off to the right in order to have space to make the turn and then set the patrol in motion to the left, at which time he heard the pickup slide gravel, then the pickup hit the front tire of the patrol. He further testified that he was traveling about two miles per hour at the time of the accident and that he stopped the patrol not over a foot after impact. He testified that he had looked back about some 400 feet before beginning the turn and that he saw only the water truck to the rear of him. As a result of the collision the pickup went some ten feet and stopped against a gravel pile. The pickup truck had damage on the right-hand door and the rear fender was pushed into the rear wheel. It was possible at the scene of the accident to make temporary repairs so that the appellant and her husband were able to continue their trip into Idaho and a few days later return to Kalispell, Montana, carrying a horse in the rear of the truck. Immediately after the vehicles came to a halt McCloney got out and went up to the Blevin's pickup. He asked appellant if she were injured and if she needed a doctor, and he was told by appellant that she had bumped her ankle on the heater, and she did not need a doctor. He observed that her ankle was bruised. He testified that several days later he saw appellant and her husband returning to Montana over the same road, that there was a horse in the pickup, but that the Blevins had not stopped to talk with him on that occasion. The appellant testified that at the time of the accident they were traveling slowly behind the patrol to the far right of the road and that the patrol went to the right as though to give them room to pass and that they started to pass when the patrol turned left into them hitting the side of the car and jarring her up considerably. Appellant testified she hit her shin and that it swelled up. She was able a short time after the collision to get out and walk around and determine that no bones were broken, but that the next morning she not only had an injured leg but that her back began to bother her. While not in issue in this appeal appellant upon returning to Kalispell received medical attention for her leg and later had back surgery. Within ten minutes after the collision the driver of the respondent's water truck having reversed his directions came up to the point of the collision, got out and talked to appellant's husband. The driver of the water truck, Huson, testified that he saw the Blevins' car pass him and that in his opinion the pickup was traveling 40, 45 or 50 miles per hour, then over the appellant's objection, Huson testified that he talked to Mr. Blevins and that he asked him how fast he was traveling and he said from 45 to 50 miles per hour. On cross-examination of Huson, appellant showed that Huson, in a statement given an insurance adjuster some six months after the accident, stated he had not talked to Mr. Blevins. For the purpose of understanding the issues raised on appellant's appeal, it is important to note that appellant's husband did not testify at the trial. The appellant sets forth several issues for our consideration. For the purpose of discussion on appeal they will be combined and discussed as follows: (1) That the court erred in giving of Instructions 15 and 18 in that when considered together they remove from the defendant any duty to exercise care in driving the grader. *380 (2) That error was committed in admitting the statement of the husband relative to the speed he was traveling at the time or just prior to the collision. The two Instructions objected to by the appellant read as follows: "INSTRUCTION NO. 15: You are instructed that it is the duty of an ordinary traveller on a highway to keep a lookout for approaching vehicles, but where a person is lawfully performing work upon a highway, the relationship is different, and such workman is not required to keep the same lookout as the traveller. All that is required of such workman is that he keep such lookout for vehicles as an ordinarily careful man similarly situated would keep. "INSTRUCTION NO. 18: You are instructed that if you find from the evidence that at the time and place of the occurrences in question the Defendant's employee, Frank McCloney, was a workman engaged in working upon the highway involved in this action, then I instruct you no duty was imposed upon him to be constantly on the lookout for motor vehicles; on the contrary, it is the duty of drivers of motor vehicles to observe workmen upon the highways, and to avoid contact with them." The appellant admits that Instruction 15, standing alone, is not fatal, but when read with Instruction 18 it becomes fatal for he states considering the two the effect of 18 is to say that an equipment operator in a road construction area has NO duty to maintain a lookout. We cannot agree with such a contention. Instruction 15 instructed the jury that a person lawfully working on a highway is not required to keep the same lookout as a traveler, but is required to "keep such lookout for vehicles as an ordinarily careful man similarly situated would keep." To hold otherwise would require the driver of the machine to be on constant lookout to the rear while moving his vehicle forward and performing the numerous mechanical functions necessary to operate the rather complicated machine. Too, it must be remembered he testified he looked back occasionally. Instruction 18 instructs as to the standard of care to be exercised by equipment operators and says they do not have to be "constantly" on the lookout and points out that motor vehicles must observe and avoid contact with them. Considering the facts here that the collision involved resulted from the actions of both the driver of the road grader and the pickup it became necessary that the jury know the degree of care to be exercised by each driver under the circumstances. The effect of these two instructions, when read in context with the other instructions advises the jury in plain and simple language the nature of the duty of care to be exercised by the two drivers involved, and left it up to the jury to apply such definitions to the facts presented. To the second issue for consideration, the admission of appellant's husband, made some ten minutes after the collision, as to the speed he had been traveling just prior to the accident we find no error as to its admission for the jury's consideration. Appellant alleges the statement was not a part of the res gestae and therefore inadmissible. However, no such objection was made to the statement when given at the trial. The only objection being that the statement was hearsay. The court over-ruled the objection when the witness testified that the plaintiff was present when the statement was made. Due to the peculiar facts of this accident, in that appellant said they had followed the patrol for several minutes at a slow speed, and the conflicting testimony of Huson concerning the speed of the pickup prior to the accident, just how long the pickup followed the patrol before attempting to pass, the question of the pickup's speed became important as a physical fact in what was the proximate cause of the accident. The declaration was admissible either as a declaration which was a part of a transaction as provided for in section 93-401-7, *381 R.C.M. 1947, or as res gestae, which section provides: "Declarations which are a part of the transaction. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction." This court in considering the application of this statute held that this provision was not intended to embody the statement of a rule by which to determine the competency of declarations relative to a transaction, but to be a mere direction that they must be deemed competent when they are so connected with the main transaction as to form a part of it. Callahan v. Chicago, etc., R. Co., 47 Mont. 401, 133 P. 687, 47 L.R.A., N.S., 587; Tanner v. Smith, 97 Mont. 229, 33 P.2d 547. It would also seem that the statement was admissible as part of the res gestae for this court in a like situation stated they reiterate the well-recognized rule that the solution of the question of admissibility of evidence must in every case be left largely to the sound discretion of the trial court, subject to review only in case of manifest abuse. Sullivan v. Metropolitan Life Ins. Co., 96 Mont. 254, 267, 29 P.2d 1046. Here, as in the Sullivan case, supra, the effect of the admission of the statement was minimized by the admission of evidence of other witnesses for both sides as to whether such a statement had been made. We find that the court did not abuse its discretion in admitting the statement. We have carefully considered the other specifications set forth in appellant's case and find them without merit. The judgment of the district court is affirmed. JAMES T. HARRISON, C. J., and CASTLES and ADAIR, JJ., concur. FRANK I. HASWELL, J., deeming himself disqualified, did not sit in this case and did not participate in this opinion.

October 13, 1967

9b75080d-58bb-4412-8f3c-608014ef65ad

STATE EX REL BRACKMAN v DISTRICT

N/A

13683

Montana

Montana Supreme Court

No. 1 3 6 8 3 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 7 STATE OF MONTANA ex rel. DALE BRACKMAN , R e l a t o r , THE D I S T R I C T COURT OF THE F I R S T J U D I C I A L D I S T R I C T OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF LEWIS AND CLARK, and t h e HON. GORDON R. BENNETT, Presiding Judge, R e s p o n d e n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For R e l a t o r : L e a p h a r t L a w F i r m , H e l e n a , M o n t a n a W. W i l l i a m L e a p h a r t argued, H e l e n a , M o n t a n a S u b m i t t e d : January 2 6 , 1 9 7 7 D e c i d e d : f E B 2 4 jjni Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Relator seeks a writ of supervisory control upon the following facts: On December 30, 1976, a criminal complaint was filed in the Justice of Peace court for Lewis and Clark County, charging relator with intimidation, a felony. A warrant for the arrest of relator was issued, relator was arrested the same day and released on his own recognizance. Relator appeared with counsel at an initial appearance before the justice of peace on January 3, 1977, and requested a preliminary examination which was scheduled for January 6, 1977. The county attorney was not present at this initial appear- ance and on January 5, 1977, filed a motion for leave to file the information directly with the district court. The county attorney presented witnesses in support of this motion and did not rely upon an affidavit. This procedure of presenting testimony in support of a motion for leave to file is the common practice of the Lewis and Clark county attorney's office. Counsel for relator appeared at this proceeding and moved the district court for permission to cross-examine the State's witnesses. This motion was denied and the State's motion for leave to file was granted. The preliminary examination in justice of peace court was vacated and the complaint subsequently dismissed. Initial appearance in district court was scheduled for January 10, 1977, arraignment was held on January 17, 1977, and trial was scheduled for January 31, 1977. We assume jurisdiction of this application pursuant to Rule 17, M.R.App.Civ.P., however we perceive no need for an ad- versary hearing upon the matter. An adversary hearing will add nothing further to the factual situation surrounding the single issue raised before this Court. The relief prayed for by relator is denied for the following reasons. The determinative issue presented is whether the motion for leave to file an information is a "critical stage" which entitled relator to the right to effective assistance of counsel. Relator relies upon Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L ed 2d 387, 397, (1970) and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L ed 2d 411 (1971). Both of these cases hold that a defendant is entitled to assistance of counsel at a preliminary hearing. Justice Brennan announced the judgment of the Court in Coleman, and stated on p . 397: "Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examin- ation and cross-examination of witnesses may ex- pose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the prepara- tion of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail. " The judgment in Coleman was rendered by a majority of the court, the majority failed to agree on the reasons for the opinion. Alabama had at least two means of initiating a prosecution: (1) a grand jury indictment without a preliminary hearing, or (2) a preliminary hearing before a magistrate to determine whether an offense was committed and whether probable cause existed to warrant presenting the case to the grand jury. Montana provides three means: (1) a grand jury indictment; (2) a preliminary examination; or (3) leave to file the information directly in district court. The grand jury procedure is not designed to be an adver- sary judicial determination of probable cause. Sections 95- 1401 et seq., R.C.M. 1947. Furthermore, as Chief Justice Burger notes in his dissent to Coleman, there is no constitutional right to counsel at grand jury proceedings. The second procedure, preliminary examination, is designed to be an adversary judicial determination of probable cause, where both the prosecution and the defense present witnesses and are entitled to cross-examination. Section 95-1202(a), R.C.M. 1947. Of course, Coleman dictates that an accused be afforded counsel if this procedure is followed. The third procedure, leave to file information in district court, is stated in section 95-1301, R.C.M. 1947: "(a) The county attorney may apply directly to the district court for permission to file an information against a named defendant. The application must be by affidavit supported by such evidence as the judge may require. If it appears that there is probable cause to believe that an offense has been committed by the de- fendant the judge shall grant leave to file the information, otherwise the application shall be denied." This procedure is constitutionally acceptable as a means of initiating a prosecution in light of the United States Supreme Court decisions in Lem Woon v . Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed 1340 (1913); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L ed 2d 98 (1962); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L ed 2d 54 (1975). Gerstein, at p. 68, citing Lem Woon and Beck, states: "In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. (Citations omitted.)" Furthermore, we have held that a defendant does not have a vested right to a preliminary examination; and the State may proceed by filing an information directly in the district court before a scheduled preliminary examination is held. State v. Dunn, 155 Mont. 319, 472 P.2d 288 (1970). Relator raises the issue whether an accused is guaranteed the right to counsel when the State chooses to bypass a scheduled preliminary examination, and presents witness testimony at the proceeding on its motion for leave to file. As relator contends, it is true that both the preliminary examination and the motion for leave to file are concerned with determining the existence of probable cause that a crime was committed by defendant. However, the answer to the issue presented must be found, not merely by comparing the similarity of the deter- mination to be made at each proceeding, but comparing how that determination is made. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L ed 2d 619, 628, 631, (1973), a case decided after Coleman, states: " * * * that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. * * *" Ash - citing Coleman as well as other decisions, traces the history of establishing the right to counsel at different stages of a criminal proceeding. The court then distinguishes these cases from the issue presented in Ash - stating: "A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present * * * no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial." (Emphasis supplied.) This holding in Ash is applicable to the situation at - hand. At a preliminary examination a defendant is entitled to be present and is granted the right to cross-examine wit- nesses, and to present witnesses of his own. On the other hand, the proceeding on a motion for leave to file does not contemplate such an adversary judicial determination of probable cause. The relator was not present, nor was he entitled to be present at the proceeding on the motion for leave to file, As in Ash, there - was no possibility that relator might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Therefore, the proceeding upon a motion for leave to file is not a "critical stage" and relator is not entitled to the assistance of counsel. Mr. Justice White expressed apprehension in concurring with the holding in Coleman at p. 401, stating: "I agree with Mr. Justice Harlan that recent cases furnish ample ground for holding the pre- liminary hearing a critical event in the progress of a criminal case. I therefore join the prevail- ing opinion, but with some hesitation since requir- ing the appointment of counsel may result in fewer preliminary hearings in jurisdictions where the prosecutor is free to avoid them by taking a case directly to a grand jury. Our ruling may also invite eliminating the preliminary hearing system entirely." We foreseea similar problem. The county attorney was not obli- gated to present witness testimony at this proceeding since he could have relied upon affidavits. Section 95-1301, R.C.M. 1947. To hold that relator was entitled to assistance of counsel at this proceeding and to cross-examine the State's witnesses would tend to discourage the practice of presenting witness testimomy at such a proceeding, whereas the policy should be to encourage it. This decision is not intended to bar a pretrial motion under section 95-1702, R.C.M. 1947, attacking the existence of probable cause once the information is filed, and seeking a hearing upon the same. Chief Justice f , * Justices fl

February 24, 1977

2439a0bc-aeb9-4bdb-a602-5d5d444da19b

State v. Armstrong

428 P.2d 611

11250

Montana

Montana Supreme Court

428 P.2d 611 (1967) The STATE of Montana, Plaintiff and Respondent, v. David Price ARMSTRONG, Defendant and Appellant. No. 11250. Supreme Court of Montana. Decided June 2, 1967. Submitted May 8, 1967. Rehearing denied June 21, 1967. *612 I. James Heckathorn and C. Eugene Phillips (argued), Kalispell, for appellant. Forrest H. Anderson, Atty. Gen., Helena, Marshall Candee, County Atty., Libby, Charles M. Joslyn, Asst. Atty. Gen. (argued), Helena, for respondent. JOHN C. HARRISON, Justice. This appeal results from a conviction of petit larceny of copper telephone wire, together with two prior convictions. At approximately 10:20 p.m. on March 20, 1966, the long distance operator at Libby was in the process of placing a call when the line went dead, the reason for the interruption of service became understandable to all concerned when it was discovered that some 4,800 feet of line was missing from its usual place on the poles. Following the disruption of service, a service crew of two was dispatched. The service men left Libby about an hour after the interruption of service going North on Highway 37, and after checking at a repeater station located at Warland they were able to determine that the break was north of the repeater station. They then proceeded along the road with one man manning a spot light following the line while the other drove the service truck. At a point about one mile south of Big Creek the crew noted a slack in the line which indicated that they were in the area of the break and as they went around a curve in the road both men noted a vehicle headed in the opposite direction they were traveling. At about that time and just before they drew abreast of the vehicle it began to move and the lights on the vehicle were turned on. Both men noted that one headlight was out. They also noted that it was a GMC 4-wheel drive vehicle, light green or blue in color, not a late model, and that there were three people in its cab. At about that point on the road the crew got out and immediately saw that three spans of wire were laying on the ground; that some of the pieces were cut and some of it was rolled up and more or less wadded up and thrown alongside the road. Too, it was noted that the line hanging from the pole was cut as high as a person might reach. These facts plus the rapidly departing vehicle naturally aroused their suspicions so they turned around and pursued the vehicle for some five to ten miles, but were never able to see it. However, they did call their manager who relayed the call to the sheriff's office along with the description of the vehicle. As a result of this call a state highway patrolman and a deputy sheriff were dispatched separately to search for the vehicle. The patrolman left at about 12:40 a.m. and the deputy sheriff sometime later. Both were instructed to look for a green GMC 4-wheel drive possibly a 1958 or 1959 model. It should be noted that the Libby-Eureka road passes through an isolated forest area and that from this road there are few connecting roads other than logging roads leading to this main road. Travel on the road is infrequent and during the hours of this investigation there was practically none. *613 The patrolman testified that he met only one vehicle in his travel from Libby to the area where he found the service crew, some 43 miles north of Libby. The deputy sheriff testified that he too had seen but one vehicle, and that it was not the GMC they were looking for. The patrolman after contacting the service crew headed back south in search of the vehicle in question and some 4 to 6 miles south of the scene of the wire cutting he encountered a GMC 4-wheel drive pickup, green in color, with one headlight out, headed north. He promptly stopped the vehicle, notified the deputy sheriff who was headed north to the scene that he had stopped the vehicle, and when the deputy got there he went back and brought the service men down and they identified the pickup as being similar to the one they saw leaving the area where the wire had been torn down and cut. In the pickup there were three occupants, the appellant and a Mr. and Mrs. James R. Houchin, Jr.; Houchin was driving at the time the pickup was stopped. In the rear of the pickup was a garbage can with copper wire in it that appeared to have been burned and some radiator and heater cores. These things were observed and testified to by the deputy sheriff, the patrolman and the service men. The occupants of the pickup were returned to Libby and the appellant and Houchin were charged with grand larceny with two prior convictions set forth on the information. While repairing the line one of the workmen found a button, at the scene of the cutting, that matched a button on one of the jackets of the men involved. The jacket was missing three buttons. Upon completion of the repair of the telephone lines the service crew returned to Libby arriving between 6:00 a.m. and 7:00 a.m. On the way home they found a coil of wire along the road which was turned in to the sheriff's office and later introduced into evidence. An investigation was made as to the ownership of the pickup and it was found to be in the name of L.B. Elletson of Kalispell who reported loaning it to Mr. Houchin. The pickup was brought to the sheriff's office where a search of the vehicle was made. In the search what is described as a horseshoe nipper was found behind the seat, and this nipper was introduced at the trial over the objection of appellant. On the following morning two deputy sheriffs conducted a search for the remaining wire assisted by a statement given them by Mrs. Houchin. They went north on Highway 37 about 20 miles to a side road known as the Cripplehorse Creek road, and some 3 miles up the Cripplehorse Creek road they located about 4,100 feet of copper wire similar to that missing from the telephone lines. This wire had been dumped over a bank alongside the road. It is interesting to note that this side road is about halfway between Libby and the area where the wire was cut and is one if not the only side road located in that area. This description of the facts is set forth in some length in order to facilitate our discussion of the legal objections raised. The appellant's specifications of error are seven in number which will be set up as each are discussed or they will be grouped as hereinafter indicated. (1) The court erred in denying appellant's motion for a directed verdict or in the alternative, for the court to advise the jury to acquit. (2) The court erred in denying appellant's motion to suppress evidence. (3) The court separately erred in admitting each of the following items of evidence over appellant's objections: (4) The court erred in having the court reporter re-read the testimony given by the witness, John Fisher. (5) The court erred in submitting court's instruction 17 to the jury. (6) The court erred in submitting a verdict to the jury embracing the charge of grand larceny. (7) The court erred in giving instruction 4, 5, and 9. To the appellant's first specification of error we find no error in the trial court's denial of a new trial. Granting that the evidence here is circumstantial the fact that it is circumstantial is not sufficient to justify a reversal of this verdict. State v. Cor, 144 Mont. 323, 396 P.2d 86. "This court has consistently subscribed to the general rule `that an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, is addressed to the sound discretion of the trial court, and that, where there is simply a conflict in the evidence and the record contains substantial evidence, [as this record does], to support the verdict, the action of the court in denying the application will not be disturbed on appeal.' State v. Wilson, 76 Mont. 384, 391, 247 P. 158, 160." State v. Walker, 148 Mont. 216, 419 P.2d 300; State v. Schleining, 146 Mont. 1, 403 P.2d 625. We do not agree with appellant's second specification of error that the trial court erred in failing to grant his motion to suppress all evidence based upon or obtained as a result of any written or oral confessions made by Martha J. Houchin. It should be noted that even though Martha Houchin was in the vehicle when it was stopped that she was never charged with any crime by the county attorney. Too, that when called as a witness in this case she chose to take the fifth amendment and therefore did not testify concerning any facts though she filed, along with the appellant's motion to suppress, a selfserving affidavit concerning why she made the statement regarding the location of the missing wire. The record is bare of evidence showing that her rights were in any way violated. Section 94-7206, R.C.M. 1947, reads: "When two or more persons are included in the same charge, the court may, at any time, before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged, that he may be a witness for the state." Here Mrs. Houchin had never been charged, hence the appellant's assertion that she was an accomplice or a principal is a presumption in which the county attorney did not indulge. Montana has long followed the rule that if there is any infringement of rights, the only person who has standing to object to the use of illegally obtained evidence is the person whose rights have been infringed. Petition of Doe, 147 Mont. 322, 412 P.2d 212. This too, is the federal rule at least up to the time of this opinion. Wong Sun v. United States, (1963) 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441; Goldstein v. United States, (1942) 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312; Jacobs v. Warden, Maryland State Penitentiary, 367 F.2d 321 (4th Cir.1966). Appellant's third specification of error is subdivided into six subdivisions, some of which have already been answered by the previous discussions concerning the statement of Martha Houchin, others concerning the admission of various rolls of wire will be consolidated in our discussion, and last but not least appellant's objections to the admission of the horseshoe nippers will be discussed. Coming to the merits of this specification that the court erred in not sustaining the motion to suppress this evidence, we find that the trial court properly allowed its admission into evidence. Appellant cites numerous cases, People v. Martin, 45 Cal.2d *615 755, 290 P.2d 855; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777; McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153, however, these cases and others cited in support of his position do not hold that a person in similar circumstances as appellant has standing to object. Here, it must be emphasized that the appellant did not own the pickup involved. It was found after an investigation had been made to belong to a friend who had loaned the car to Houchin so the law officers involved had an obligation to protect not only the owner but also the county in inventorying the contents of the impounded pickup. In several recent cases, In re Petition of Doe, 147 Mont. 322, 412 P.2d 212, (supra) and State v. Nelson, 130 Mont. 466, 304 P.2d 1110, we have discussed these objections and find no merit to them. In judging the admissibility of the evidence introduced we are guided by the principles recently enunciated by the U.S. Supreme Court in Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726, where it was stated that the evidence at issue, in order to be admissible, must be the product of a search, incident to a lawful arrest, since the officers had no search warrant. The lawfulness of arrest, without warrant, in turn, must be based on probable cause, which exists "`where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.' Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)." With this standard as a beacon, an examination of this record previously set forth shows that facts and circumstances existed at the time of the warrantless arrest sufficiently to allow probable cause. Too, the deputy sheriff and patrolman, having just cause had a duty not only to impound the pickup off the public highway for its own protection, but also to inventory the contents so that they would be safeguarded for the owner. Here from the time of the seizure of the pickup until the inventory at the sheriff's office, the pickup was in the lawful possession of the sheriff. In these circumstances the search without a warrant cannot be said to be "unreasonable." Appellant's specification 3(e) will be discussed under specification 6. To the appellant's fourth specification that the court erred in having the court reporter repeat certain testimony we find no error. It is within the trial court's discretionary power to grant a jury's request to re-read parts of testimony, and such procedure is authorized by statute. Section 94-7304, R.C.M. 1947, reads as follows: "After the jury has retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of the county attorney and the defendant and his counsel." Specifications 5 and 6 go to the value of the wire and will be jointly considered. Here there was adequate proof submitted showing that 4,100 feet of wire was taken, that it weighed approximately 141 pounds; that there was some 28 feet 6 inches per pound; and that the only value the recovered wire was to the telephone company was junk wire which would bring from 32 cents to 56 cents per pound in the five state area served by the company. Taking the most conservative figure, and realizing that no proof was submitted as to a local price if one existed, simple multiplication of 141 pounds by 32 cents equals $45.12. While the state failed to relate the latest junk price for wire to the date of the taking, we find no prejudicial error here due to the jury's finding appellant guilty of only petit larceny. *616 However, this court held in State v. Dimond, 82 Mont. 110, 113, 265 P. 5, 6, and it has been our law since that case that "The proof respecting the value of the property stolen was not altogether satisfactory, but it was sufficient to show that the articles in question were of some value. The other elements of the crime being proven, if the property stolen is shown beyond a reasonable doubt to be of value, the amount of the value becomes material only in determining the degree of which defendant is guilty. * * * If the value exceeds $50, he is guilty of grand larceny; if $50 or less, he is guilty of petit larceny. * * * It was not necessary to prove the value as alleged." We find no error in the holdings of the court concerning these specifications. Specification of error 7 goes to the giving of instructions 4, 5 and 9, all of which cover aspects of grand larceny. Having covered this in our discussion of specification 6 we conclude that there was sufficient evidence before the jury to have warranted a conclusion that the value of the wire was of a greater value than fifty dollars and, therefore, no error was committed in giving instructions and a verdict form on grand larceny. However, appellant's conviction was only for petit larceny so no possible prejudice arose from the jury's findings. The judgment of the lower court is affirmed. JAMES T. HARRISON C.J., and ADAIR, CASTLES and DOYLE JJ., concur.

June 2, 1967

6e92422f-763a-4368-a5d4-b94ba6430d8c

Benner v. BF Goodrich Company

430 P.2d 648

11229

Montana

Montana Supreme Court

430 P.2d 648 (1967) Theodore BENNER, Administrator of the Estate of Jack R. Benner, Deceased, Plaintiff and Appellant, v. B.F. GOODRICH COMPANY, a corporation, and James Moll, Defendant and Respondent. No. 11229. Supreme Court of Montana. July 31, 1967. Rehearing denied August 15, 1967. *649 Sias &amp; Hendrickson, Oscar Hendrickson (argued), Chinook, for appellant. Burns &amp; Thomas, Bernard W. Thomas (argued), Chinook, for respondent. JOHN C. HARRISON, Justice. This is an appeal from a denial of a motion for a new trial after the jury trial resulted in a verdict for the defendant. The cause of action is a wrongful death action by Theodore Benner, administrator of the estate of Jack R. Benner against respondents Moll and B.F. Goodrich Company. On January 21, 1965, at approximately 2:50 a.m., Jack R. Benner, son of plaintiff-appellant Theodore Benner, was riding in a 1964 Falcon pick-up driven by Delmar Mitchell. They were proceeding north on Indiana Street the main street of Chinook, Montana. James Moll, defendant-respondent, an employee of B.F. Goodrich Company, defendant-respondent, was traveling in a 1964 Chevrolet Sedan on Highway 2 through Chinook. He was traveling west and hit the Mitchell car at the intersection of Indiana Street and Highway 2. There was a stop sign on the corner of Indiana Street at its intersection with Highway 2. Mitchell and Benner were killed. The night was cold and the testimony showed that while the snow had blown off the highway there was some snowpack and ruts at the scene of the accident. The respondent testified he was on a business trip and was driving from Harlem, Montana, to Havre, Montana, his home. He estimated his speed between Harlem and the city limits of Chinook to have been between 50 and 55 miles per hour. Approaching Chinook he noted a 45 mile per hour zone just east of the town and the 25 mile per hour sign at the city limits and testified that he was traveling from 25 miles per hour to 30 miles per hour when the accident occurred. Concerning the accident his testimony was: "Q. How soon before the collision did you see the other car? A. Just a very few feet. "Q. How many feet? A. I don't know exactly. "Q. What did you observe about the other car? A. It was just there, it came out in front of me. "Q. In other words you didn't see that car at all until you collided with it? A. Yes, sir." The respondent suffered head and shoulder injuries that hospitalized him for several days and from which he was still under medical treatment at the time of the trial a year and a half after the accident. Introduced at the trial by the appellant was a statement taken at the hospital the night after the accident, the 22nd. This statement was taken by a William Hofdahl, an adjuster-investigator, and it indicated that the respondent was traveling about 35 miles per hour. The city ordinance provided only 25 miles per hour as was indicated and noted by the respondent's testimony. The appellant contends that this speed, in view of the conditions of the road indicated a careless and negligent conduct which resulted in the death *650 of Jack Benner. While this written statement conflicted with the respondent's testimony at the trial it was explained at the trial that respondent was in shock and under heavy sedation and the trial judge felt the matter was a question for the jury. Appellant sets forth five issues. (1) Is the verdict of the jury and the judgment thereon, supported by substantial evidence and is the verdict in accordance with the law? (2) Did the district court abuse its discretion in denying a new trial to plaintiff? (3) Was it prejudicial to the right of the plaintiff to give, over the objection of the plaintiff, Instructions Nos. 20, 21, 22 and 24? (4) Was it prejudicial to the rights of the plaintiff to refuse plaintiff's proposed Instruction No. 22? and (5) Was it prejudicial to plaintiff's right to permit evidence of blood samples, showing that such were taken, by testimony of persons other than those of a person taking the same, and the introduction of same without proper foundation? While there were no other eyewitnesses to the accident other than respondent, other evidence was received by the jury that shed some light on the amount of drinking by the deceased, the speed of the vehicle just before the accident and the time element in considering whether or not the vehicle had stopped at the intersection. A number of persons testified that in their opinion neither of the men were drunk although they had had from three to five drinks during the evening. The last two persons who saw the men alive, Olson and McDowell, testified that they were on the curb in front of Harry's Cafe when the car went past them and that the car had just started out so the speed was not more than fifteen miles per hour. Harry's Cafe was estimated to be from 200 to 300 feet from the intersection to one-half to three quarters of a block. Olson testified that he started across the street and when in about the middle of the street he heard the crash. Several witnesses testified that they could smell liquor in the car after the accident; others testified to the contrary. There was no visible evidence after the accident from which it could be ascertained whether the northbound car had stopped at the intersection. In considering the issues presented we will begin with number two and will conclude with one. It has long been established in this court that when considering the trial court's action regarding motions for a new trial that the granting of a new trial is within the sound discretion of the trial court. Once granted, its order thereon will be reversed only for manifest abuse of that discretion; that an order, general in its terms, granting a new trial, will be upheld if it can be sustained on any grounds stated in the motion therefor; that such an order will not be set aside as readily as an order denying a new trial, since the latter ends the case, whereas the former merely restores the parties to the position they occupied before trial. Estate of Maricich, 145 Mont. 146, 400 P.2d 873; Herren v. Hawks, 139 Mont. 440, 365 P.2d 641. In view of the facts presented to the jury, as hereinbefore stated, it appears there was substantial evidence to sustain the court's ruling in not granting a new trial. Issue No. 3 concerns the court's failure to give plaintiff's Instructions Nos. 20, 21 and 22, all of which support appellant's contention that contributory negligence cannot be imputed to the appellant. Appellant relies heavily upon this court's holding in Presser v. Anderson, 146 Mont. 396, 407 P.2d 41. However, in that case the fact situation was entirely different. There were no questions raised in Presser v. Anderson of drinking. Here, though the deceased's companion testified that the two men were not intoxicated there was testimony as to the drinking and later proof, the blood tests, that substantiated the amount. We find that it was a jury question *651 whether an ordinarily prudent man would have ridden with Mitchell under the circumstances. In a similar fact case, Black v. Martin, 88 Mont. 256, 262, 292 P. 577, 578, this court held: "Whether the plaintiff, a guest, was guilty of contributory negligence was also for the jury. The rule is that the negligence of the driver of an automobile is not generally imputed to the passenger; but this does not absolve the passenger from taking such precautions for his own safety as under the particular circumstances are reasonable. [Case cited.] In other words, the passenger is not absolved from the duty of using ordinary care for his own safety. [Case cited.]" This holding explains why it was not error for the trial court in this case not to give the proposed instructions. To the court's failure to give the appellant's proposed Instruction No. 22 we find no error. This Instruction reads: "You are instructed that the negligence of Jack Benner, if any, was not the proximate cause of his injury, as a result he was not contributorily negligent as a matter of law." As can be seen from the facts previously set forth the undisputed facts are few. The questions surrounding the accident are fact questions and not questions of law. The effect of this instruction would have been to direct a verdict for the appellant and would have removed from the jury their fact finding power. The next issue for consideration is whether or not the trial court was correct in giving an instruction which allowed the jury to take into account a covenant not to sue between the appellant and the Mitchell estate in considering the mitigation of damages. This issue would have been relevant only if the jury had determined that the respondent was negligent and there was no contributory negligence on appellant's part which was the proximate cause of his death. Such a determination was not established here. Assuming arguendo that the jury had made such a determination the principles set forth in Black v. Martin, supra, become relevant for there this court said at p. 265, 292 P. at p. 580: "If the concurrent negligence of two or more persons causes an injury to a third person, they are jointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all. [Cases cited.] There is but one injury for which each tort-feasor is answerable in full, but, there being but one wrongful act, there can be but one full recovery, one complete satisfaction. When this is obtained the injured party has exhausted his remedy * * *." It is proper here, then, that the jury be allowed to mitigate the full recovery by the amount of the covenant. An exception to mitigation is where a collateral source wholly independent of the wrongdoer compensates the plaintiff. Anheuser-Busch Inc. v. Starley, 28 Cal. 2d 347, 170 P.2d 448, 166 A.L.R. 198. That exception is not applicable here. Therefore, the giving of the instruction was not error. The fifth issue raises for consideration whether the appellant's rights were prejudiced by the methods used in taking the blood of the two deceased men. This is a two part issue in that appellant first objected to the testimony of Howard Gipe, the State Highway Patrolman who investigated the accident, concerning the taking of blood samples from Mitchell and Benner by the mortician Mr. Eliason. We find no error in the trial court's allowing Patrolman Gipe to testify for it showed how they were taken and laid a foundation for the chemical analysis being later entered into evidence. The admissibility of the results is the second question. Leon Eliason, the county coroner, testified as to the method used in taking the blood samples. He testified that the tube used had held formalin and formaldehyde. In describing the procedure he stated that the tube was washed with clear water and soap before and between samples. Thereafter the samples were sent to the *652 Board of Health in Helena where they were given a modified Nicloux test to determine the alcohol content. According to defendant's exhibits, these tests showed 0.15% alcohol by weight in Mr. Benner's sample and 0.14% alcohol by weight in Mr. Mitchell's sample. To make those results relevant, section 32-2142, R.C.M. 1947, says that between 0.05% and 0.15% alcohol by weight, there is no presumption that a person is under the influence of intoxicating liquor. Under the same statute, there is a presumption that a person is under the influence of intoxicating liquor when the content is 0.15% or more by weight. Don Ryan, a State Board of Health chemist, testified concerning the chemistry of the test in the laboratory. However, he admitted that he had not studied the procedures of taking the sample. To rebut the validity of the taking the plaintiff had Dr. John Pfaff, a Board pathologist and the medical examiner for the Cascade County Coroner, testify concerning the method of taking the blood samples. Dr. Pfaff was asked a hypothetical question based on the method used in these tests. It was his opinion that the samples should not be used for determination of alcohol content; he said that with the formalin and formaldehyde contamination the Nicloux test probably would show higher alcohol content than actually existed. This is because the test is a volatility test; the formalin and formaldehyde were not tested for in the samples; these substances could add to the volatility of the sample resulting in a higher than actual alcohol content result. We find on the basis of the testimony in this case, it was improper to admit the results of the blood sample tests. However, we do not conclude the error was reversible. We conclude there was ample testimony concerning drinking to reduce the effect of the admission of the results, and leave the question to the jury for determination. Considering the first issue raised whether the verdict of the jury and the judgment thereon are supported by substantial evidence and are in accordance with the law we must answer in the affirmative. Counsel for the respondent contends that the judgment can be sustained for the reason that there is no substantial evidence that shows the respondent negligent. While there was testimony that puts the speed of respondent's car in question, but considering all the testimony the question presented was one of fact for the jury and not one of law for the court. The judgment of the district court is affirmed. JAMES T. HARRISON, C. J., and CASTLES and ADAIR, JJ., concur.

July 31, 1967

252a8025-ab83-48aa-af06-5139079948e4

Hash v. RJ Sundling & Sons, Inc.

150 Mont. 388, 436 P.2d 83

11294

Montana

Montana Supreme Court

436 P.2d 83 (1967) 150 Mont. 388 A.G. HASH, d/b/a Hash Construction Co., Plaintiff and Respondent, v. R. J. SUNDLING &amp; SON, INC., Defendant and Appellant. No. 11294. Supreme Court of Montana. Submitted October 17, 1967. Decided December 28, 1967. Berg, O'Connell &amp; Angel, Bozeman, Ben E. Berg, Jr. (argued), Bozeman, for appellant. Berger, Anderson &amp; Sinclair, Billings, Richard W. Anderson (argued), Billings, for respondent. HASWELL, Justice. This is an appeal from a judgment awarding a highway construction subcontractor the sum of $14,272 and interest against the prime contractor covering the reasonable cost of performing certain alleged unanticipated excavation under the subcontract between them. The case was tried in the district court of Park County before the Honorable Nat Allen, presiding judge, sitting without a jury, who rendered judgment based on his findings of fact and conclusions of law. The plaintiff in the case is A.G. Hash, d/b/a Hash Construction Co., who is the subcontractor on the excavation work involved in the highway construction project herein, and who will be referred to hereafter as Hash. Defendant in the case is R.J. Sundling and Son, Inc., who is the prime contractor with the State of Montana on the entire highway construction contract and who subcontracted the excavation work to Hash; defendant will hereafter be referred to as Sundling. The contract provisions relating to the excavation work were contained in the prime contract between the State of Montana and Sundling; these identical provisions were incorporated in the subcontract between Sundling and Hash. On June 25, 1963, Sundling entered into the prime contract with the State of Montana *84 to reconstruct and widen approximately 5½ miles of highway in Gallatin County between Gallatin Gateway and Four Corners. The construction project generally involved removing the oiled surface of the existing highway, excavating down to a subgrade indicated by the plans and specifications for the project and staked by the Montana Highway Department, widening the highway and establishing a corresponding subgrade on the widened portion, and constructing the widened highway accordingly. The specifications for the project as set forth both in the prime contract and the subcontract consisted of standard specifications common to all highway construction projects which were set forth in a pamphlet of 460 pages divided into 97 different sections. Insofar as these standard specification are pertinent to the excavation work in the instant case, they provided: (1) That the excavation work generally would consist of excavating and grading the roadway and borrow pit including excavation, removal, and disposal of unsuitable material from the roadbed and embankment areas within the limits of the work according to the specifications shown in the plans or as staked by the engineer; (2) Where the ground foundation for embankments is composed of muck or other unstable materials the same would be removed to the depth shown on the plans or as directed by the engineer, and the excavated area backfilled; (3) That the bidder would make a thorough examination of the site, the proposal, the plans and specifications, and the contract before bidding and satisfy himself as to the conditions to be encountered; (4) That some changes in the plans and specifications are inherent in highway construction contracts which must be recognized at the time of bidding within normal and expected margins, and the engineer has the right to make such changes; (5) That if such changes exceed an increase or decrease of more than twenty-five percent in (a) the length of the project, (b) the total cost of the work calculated from the original proposal of quantities and contract unit prices or (c) the quantity of any major contract item (including earth or common roadway excavation but excluding any other class or item of foundation piling), a supplemental agreement would be made covering adjustments in payment; (6) Such adjustments would be made on the basis of the contract unit prices in the original contract for the additional work and materials; and (7) In case of discrepancies between the standard specifications and the plans, the plans would govern. The plans for the project in general called for stripping off the oil mat on the existing highway, excavating to an average depth of one to two feet below the level of the existing road as staked by the Highway Department, and widening the road. The excavation generally did not exceed the base of the existing roadbed, did not reach the borrow pit level, and was already staked out by the Highway Department. Hash became interested in securing a subcontract with Sundling for the excavation work involved. Hash inspected the site, examined the plans and specifications for the project, cross-checked the plans and specifications against the grade stakes installed by the Montana Highway Department, noted some wetness in the ditch bottom in the borrow pit alongside the existing highway and at one point probed the ditch bottom with a stick and found mud to a depth of one foot, and found that the general excavation depth averaged one to two feet beneath the surface of the existing road and generally did not exceed the base of the existing roadbed. Hash also talked to Sundling and to the project engineer for the State Highway Department, but the evidence is in conflict as to the statements allegedly made by them to Hash concerning the wetness of the subgrade and the conditions he was likely to encounter. Subsequently Hash and Sundling negotiated the price of 25 cents per cubic yard for the excavation work under the subcontract at which time Hash indicated that soft *85 conditions might be encountered in the excavation. On September 3, 1963, Hash entered into a subcontract with Sundling for the excavation work on the project consisting generally of unclassified excavation of 155,584 cubic yards at 25 cents per cubic yard or a total price of $38,896 according to the plans, specifications, bid and proposal on file with the Secretary of the Montana Highway Commission pertaining to the project. Shortly thereafter Hash commenced the excavation work on the project and all went well for two or three weeks. At that time Hash began to encounter excessive wetness below the subgrade which required extensive "dig-outs" below the subgrade to provide a solid foundation for the bed of the highway to be constructed. The State Highway project engineer required of Sundling that all muck, water and unstable material be removed and that the excavation so created be backfilled; Sundling in turn required Hash to do this. All evidence indicates that Hash discussed with Sundling the matter of additional compensations for this work, but a substantial conflict exists over what assurances, if any, Sundling made to Hash covering additional compensation. Hash claims that shortly after he encountered the excessive wetness below subgrade as indicated in the plans and was required to make an extensive "dig-out," he told Sundling he would have to quit and forfeit the work already done because he simply could not dig out the type of material actually encountered for the contract price, but that Sundling told him to go ahead with the excavation work, keep track of his time and expense on the excavation work below subgrade, that although he (Sundling) did not want to get into trouble with the State until after completion of another job for them, at that time he (Sundling) would see that Hash got additional compensation even to the extent of suing the State, if necessary. Hash claims that he continued the excavation work on the project based upon these representations by Sundling. Sundling, on the other hand, claims that he told Hash he would try to get him additional compensation from the state for the subgrade excavation work and any additional compensation so received would go to Hash. Sundling claims that his representations did not go beyond this point. It should be noted that rather extensive "dig-outs" below the subgrade established by the plans and specifications of the State Highway Department for the project were required involving rather extensive use of additional men and equipment, considerably more time and expense, and the use of unusual techniques to accomplish the work. The excessive wetness encountered in the excavation was all below the subgrade as established by the plans, specifications, subgrade profiles and grade stakes of the State Highway Department; this excessive wetness covered approximately two-thirds of the entire project. The reasonable cost of the "dig-outs" required because of this excessive wetness below subgrade was established as being approximately 92 cents per cubic yard, as against the bid of Sundling of 30 cents per cubic yard and the bid of Hash of 25 cents per cubic yard. It is to be observed at this point that the excavation work required by the contract called for approximately 155,000 cubic yards of unclassified excavation which was later reduced to approximately 135,000 cubic yards because of a grade change made after the original contract and subcontract were entered into. The excavation work actually performed under the prime contract and the subcontract consisted of approximately 149,000 cubic yards. It should be noted, however, that the claim involved in this case is not based upon any additional cubic yardage of excavation work required to be done, but instead is based upon a substantial increase in the total cost of the excavation work performed because of the increased ratio of high-priced excavation to low-price excavation. The claim involved here is for 21,410 cubic yards of excavation below the subgrade established by the plans and specifications for the project where excessive *86 wetness was encountered resulting in a substantial increase in excavation costs. Sundling attempted to secure additional compensation because of the excessive wetness encountered below the subgrade, but the State Highway Department refused to pay additional compensation. Eventually this refusal was communicated to Hash and after Sundling refused additional compensation to Hash and declined to sue the State, Hash sued Sundling for the reasonable value of the high priced excavation work performed due to excessive wetness encountered outside the scope of the plans, specifications and subcontract. The judgment awarded in the instant case represents the difference between the subcontract price of 25 cents per cubic yard for the excavation and 92 cents per cubic yard which was established as the reasonable value of the additional excavation required due to conditions actually encountered. The issues presented for review upon this appeal can be summarized as follows: (1) Whether Hash should have anticipated the wetness and soft subsurface conditions actually encountered on the project in making his bid and entering into his contract and consequently should be denied additional compensation; (2) Whether Sundling made a supplementary oral agreement with Hash to pay him additional compensation. The problem in the instant case is not so much with the law as with the facts. The standard specifications in the subcontract as hereinbefore set forth provide for additional compensation. Additionally, it is clear that under appropriate circumstances, the contractor who encounters substantially different conditions in performing a construction contract from those contemplated and set forth in the plans and specifications contained herein may be entitled to increased compensation for the additional work. See generally 76 A.L.R. 268; 85 A.L.R.2d 212. The test of whether or not such contractor is entitled to additional compensation is whether or not he justifiably relied upon the plans and specifications for the construction in making his bid and entering into the contract. Sandkay Const. Co. v. The State Highway Commission, 145 Mont. 180, 399 P.2d 1002; Haggart Const. Co. v. State of Montana, 149 Mont. 422, 427 P.2d 686. The reason for this rule is that if unanticipated conditions not reasonably foreseeable are actually encountered in the work and vary substantially from anticipated conditions reasonably foreseeable by the parties at the time they entered into the contract, the contractor is performing an entirely different contract than the one agreed upon and in such case is entitled to the reasonable value of his additional services. Applying these principles to the facts and circumstances of the instant case, it is clear that at the time Hash entered into the excavation subcontract he relied upon the plans and specifications, the grade stakes and his own observation at the site and concluded that although some wetness would be encountered in the borrow pit alongside the highway he did not anticipate this condition underneath the road surface at the depth of the required excavation as established by the plans and specifications, and submitted his bid accordingly. It was only when he was required to go to a depth below the subgrade as established by the State Highway Department in their plans and specifications and so staked out by them that he encountered the excessive wetness that required the additional work for which he is suing herein. Neither the State Highway Department, the prime contractor Sundling nor Hash anticipated this excessive wetness; it was only because Hash was required to go outside the scope of his contract that these conditions were encountered. Certainly Hash was entitled to rely upon the plans and specifications for the job, the profiles of the subgrade, and the grade stakes in determining the depth of the required excavation in submitting his bid and entering into the excavation subcontract, unless there was something therein that would indicate that he should have reasonably foreseen and anticipated the conditions actually encountered. This is the *87 crux of the matter in the instant case and is clearly a factual inquiry. Sundling contends that Hash should have reasonably foreseen and anticipated the conditions actually encountered because (1) the road in question crossed subirrigated pasture lands for a considerable distance and at one point called for construction of a drainage ditch which crossed under the roadway; (2) at one point a spring drained from the pasture into the borrow pit alongside the road and readily observable; (3) at one point a farmer's canal was in close proximity with the new right-of-way and was located above the highway to be constructed and that this canal had a gravel base which would indicate some drainage and seepage into the borrow pit alongside the road and the subgrade; (4) mud was encountered in a ditch on the east side of the highway at one point which should indicate a wet subgrade; and (5) the patching on the oiled surface of the existing highway indicated an unstable subgrade. Hash's contention in answer to Sundling's are these: (1) That he knew the bottom of the borrow pit and ditch alongside the highway were wet in some places, but he did not anticipate this would affect his excavation work because the excavator's work was all above the level of the borrow pit according to the plans and specifications for the project and as staked by the State Highway Department; (2) That wetness in the borrow pit alongside the road whether caused by seepage, drainage, springs or other sources is no indication that wetness would be encountered in excavating to the subgrade below the surface of the highway established by the plans, specifications and grade stakes and (3) Site inspections indicated adequate drainage throughout the project, that the general condition of the roadbed of the old highway was good, that it was not sagging or falling in any place, and that the foundation appeared solid. It appears reasonably clear to us that the foreseeability of conditions actually encountered is purely and simply a question of fact and the trial court having determined such fact adversely to Sundling based upon conflicting evidence has thus foreclosed Sundling's contentions herein. As a consequence and because the trial court has determined that the conditions actually encountered were not reasonably foreseeable and could not have been anticipated by Hash, Hash was justifiably entitled to rely upon the plans and specifications for the project, the profiles of the subgrade and the grade stakes in bidding on the subcontract for excavation. Thus when Hash was called upon to perform an unexpected type of excavation outside the scope of the contract, he became entitled to the reasonable value of his additional work. As to the second issue presented for review as set forth above, we will comment on it briefly. The trial court made this finding of fact relating to the second issue presented for review: "In addition to performing an entirely new and different contract, as set forth in the findings of fact stated above, plaintiff and defendant entered into an oral agreement for the below subgrade excavation, wherein plaintiff relied upon defendant's promise to obtain from the State and to pay additional compensation for such excavation. Defendant made at least one early request to the State for such additional compensation, but was promptly refused. Defendant then concealed this knowledge from plaintiff until the project was completed, and permitted plaintiff to continue with such excavation in the mistaken belief that the State would pay more money. Plaintiff first learned of the State's refusal when the project was approximately 80 percent completed, and the information at this time did not come from the defendant, but from the State Engineer." We recognize that the evidence is sharply in conflict on this issue. Depending upon which witnesses and which testimony is given credence, the finding could *88 be either way on this second issue. The trial judge who observed the characteristics of the witnesses while testifying as well as hearing the substance of their testimony was in a better position than this court to judge their credibility and the weight to be given their testimony. Suffice it to say, there is substantial, credible evidence in the record to sustain the findings of the trial judge. Under such circumstances, his findings on this second issue will be affirmed. The judgment of the district court is affirmed. JAMES T. HARRISON, C. J., and ADAIR, CASTLES and JOHN CONWAY HARRISON, JJ., concur.

December 28, 1967