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On June 8, 1998, the Defendant was sentenced to the following: Count I: fifteen (15) years in the Montana State Prison; Count II: six (6) months in the Missoula County Jail, to run concurrently with the sentence imposed in Count I.
On November 6, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Lisa B. Kauffman. The state was represented by Fred VanValkenburg.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed, with the amendment that the Defendant receive credit for thirty-three (33) months previously served on the drug conviction in Yellowstone County. The Board also adds the requirement that the Defendant complete SOP II, in the Montana State Prison, prior to being considered eligible for parole. The Department of Corrections will have the option of reviewing the treatment the Defendant has already received and requesting that this Division waive that requirement if they believe the Defendant has already completed a course equivalent to SOP II.
Done in open Court this 6th day of November, 1998.
DATED this 2nd day of December, 1998.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips and Alt. Member, Robert A. Boyd.
The Sentence Review Board wishes to thank Lisa B. Kauffman and Fred VanValkenburg for representing Mr. Gibson and the State in this matter.
|
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On May 18, 1998, the Defendant was sentenced to the Montana State Prison for a period of twenty (20) years on Count I and ten (10) years on Count II. No time is suspended. Said sentence shall ran concurrent with each other and with the sentences in Cause No. BDC 97-300 and BDC 93-104. The Defendant is given credit for one hundred fifteen (115) days already served.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Bethany Schendel. The state was represented by Brant Light.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Bethany Schendel for representing Steven Robb in this matter.
|
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On September 30,1997, it was ordered, adjudged and decreed that the said defendant be punished by imprisonment in the Montana Women’s Prison at Billings, Montana, for the term of ten (10) years to ran consecutively with the sentence received in criminal cause number DC 96-453. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 4 days. It is further ordered that the execution of the last six (6) years of said prison sentence this day imposed on said defendant, as hereinabove set forth, be, and the same hereby is suspended, and said defendant is hereby placed on probation for the last six (6) years of said period often (10) years to ran consecutively with the sentence received in criminal cause number DC 96-453, and the Court retains jurisdiction of said defendant in the above-entitled cause during the entire term of the last six (6) years of said imprisonment above-mentioned, and said prison sentence is suspended upon conditions, as stated in the September 30,1997 judgment, to be performed and kept by said defendant during this term of probation. The defendant is further notified that the law imposes upon her the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that she is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) to the Treasurer of this County. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above-conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.
On April 10, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was represented by Margaret Gallagher, Deputy County Attorney.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended so that the defendant is sentenced to the Department of Corrections for the remainder of her sentence instead of the Women’s Correctional System. All other terms of the sentence shall remain the same.
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
The reason for the change is that it allows the Department of Corrections to place the defendant where they deem most appropriate.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Terri Humphrey for representing herself in this matter and Margaret Gallagher, Deputy County Attorney, for representing the State.
|
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] |
On September 4,1998, the Defendant was sentenced to the following: ten (10) years in the Montana State Prison for the offense of Assault on a Peace Officer, subject to an additional ten (10) years for weapon’s enhancement; five (5) years in the Montana State Prison for the offense of Criminal Possession of Dangerous Drugs; and ten (10) years in the Montana State Prison for the offense of Use or Possession of Property Subject to Criminal Forfeiture, to run consecutive to one another for a total of thirty-five (35) years, with fifteen (15) years suspended.
On November 6, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
Done in open Court this 6th day of November, 1998.
DATED this 30th day of December, 1998.
The defendant was present and was represented by Howard Greenwood. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be amended as follows: ten (10) years in the Montana State Prison for the offense of Assault on a Peace Officer; ten (10) years in the Montana State Prison, with eight (8) years suspended, for the weapon’s enhancement charge; five (5) years in the Montana State Prison for the offense of Criminal Possession of Dangerous Drugs; and ten (10) years in the Montana State Prison for the offense of Use or Possession of Property Subject to Crimiiial Forfeiture, for a total of thirty-five (35) years, with twenty-three (23) years suspended. All of the sentences imposed shall run concurrent to one another, with the exception of the sentence imposed in the weapon’s enhancement charge, which shall be served consecutive to the other sentences.
The reasons for the amendment are: all of the offenses the Defendant was charged with are related to one event, the Defendant’s lack of a significant prior record, the Defendant led a law abiding life up until the current offenses, and some of the comments listed in the Judgment and Commitment were unrelated to matters before the sentencing Court.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips and Alt. Member, Robert A. Boyd.
The Sentence Review Board wishes to thank Howard Greenwood for representing Mr. Lambert in this matter.
|
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1
] |
On October 23,1997, Coby Christensen was in fact guilty of the following offenses: a. Sexual Intercourse Without Consent (45-5-503, MCA); b. Sexual Abuse of Children (45-5-625)(l)(b), MCA); c. Sexual Assault (45-5-502(3), MCA); d. Incest (45-5-507(1), MCA); For his conviction of the four felony offenses as herein set out, the Court now imposes its: For his conviction of Sexual Intercourse without Consent, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. For his conviction of Sexual Abuse of Children, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. For his conviction of Sexual Assault, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. For his conviction of Incest, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. The four imposed sentences shall run concurrently, and it is the strong recommendation of the Court that the Department make every effort to place the defendant in an appropriate pre-release program to address the sexual problems set forth in the psychological evaluation. Defendant shall be entitled to a credit of 166 days which he served in jail pending disposition of the charges, but he is not to be eligible for parole until he has successfully completed a sex offender program. If and when the defendant becomes eligible for parole under the terms of this sentence, conditions of parole shall include what is stated in the October 23, 1997 judgment.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Attorney Vince Kozakiewicz. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that the defendant complete phase I and II of the Sex Offender Treatment Program in the prison before he is eligible for parole.
Reasons for the amendment are because of the assumption that the defendant would likely be placed in an out-patient program because it was omitted from the District Court sentence. The board believes the defendant is a danger to young children by his own statements in the pre-sentence investigation, by his prior conduct both as a juvenile and as stated in Judge Davis’s judgment. The protection of society and children mandates that the defendant receive at least Phase I and II in the prison before being released.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Attorney Vince Kozakiewicz for representing Coby Christensen in this matter.
|
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] |
On June 24,1998, the Defendant was sentenced to ten (10) years in the Montana State Prison, with credit given for 592 days j ail time previously served.
On November 6, 1998, the_defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
Done in open Court this 6th day of November, 1998.
DATED this 30th day of November, 1998.
The defendant was present and was represented by Larry Mansch. The state was represented by Fred VanValkenburg.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Larry Mansch and Fred VanValkenburg for representing Mr. Swan and the State in this matter.
|
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] |
On June 19, 2000, the defendant was sentenced to five (5) years in the Montana State Prison.
On November 2,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Alice Kennedy. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
It is the unanimous decision of the Sentence Review Division that the sentence is amended from five (5) years in the Montana State Prison, to a five (5) year commitment to the Department of Corrections. It is also the Board's recommendation that when the Department of Corrections determines that the defendant is qualified for community corrections placement, that the defendant be considered for placement at the Connections Corrections Program in Butte, Montana.
The reason for the amendment is to conform this sentence to the terms of the original judgment.
Chairman, Hon. Jeffrey H. Langton; Member, Hon. Marge Johnson and Member, Hon. David Cybulski
|
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
Floyd Lee Lovins appeals an order of the Ninth Judicial District Court, Toole County, granting summary judgment to Toole County and the Toole County Commissioners and imposing Rule 11, M.R.Civ.R, sanctions upon Lovins. By order dated July 30,1996, this Court affirmed the District Court’s judgment but reversed the imposition of sanctions, stating that a full opinion would follow.
We restate the issues as:
1. Whether summary judgment must be reversed because supporting affidavits filed with the court were not served upon the opposing party.
2. Whether the District Court erred in granting summary judgment.
3. Whether the court’s sanction was an abuse of discretion.
Floyd Lee Lovins, acting pro se, filed this action in the District Court in April 1996. He asked the court to stay proceedings by which the Toole County Commissioners proposed to borrow $1,700,000 through the Montana Health Facility Authority to construct an addition to Toole County Hospital and Nursing Home. The proposed addition would house administrative facilities and an outpatient and physicians’ clinic. Lovins claimed that Toole County could not borrow the money without first submitting the question to a vote of county electors as required under § 7-7-2402, MCA.
The defendants moved for summary judgment on the basis of res judicata or collateral estoppel. They asked the court to take judicial notice of a previous action, Lovins v. Toole County, Ninth Judicial District Court Cause No. DV-95-009. Lovins had filed that case a year before to prevent a proposed lease arrangement under which a private nonprofit corporation would take over operation of the hospi tal. In that action, the court granted Lovins a writ of prohibition in August 1995.
In the present case, the District Court ruled that res judicata barred the action and that Lovins was estopped from proceeding further on this issue because he had unsuccessfully made the same legal arguments in the 1995 case. The court also ruled that § 7-6-2512(2), MCA, allows Toole County to agree to levy the tax and pledge it to payment of bonds issued under § 7-34-2411, MCA; and that § 7-6-2512(2), MCA, specifically provides that pledge of these taxes to secure bond payment cannot be used to cause the bonds to be considered indebtedness of the county for any purpose.
The court further found that Lovins had unreasonably and vexatiously multiplied the proceedings. As a sanction pursuant to Rule 11, M.R.Civ.P., and to discourage abusive litigation tactics, the court prohibited Lovins from commencing or filing any further litigation in Toole County for the next four years as a pro se litigant without first obtaining permission from a district judge.
Lovins appealed to this Court. The defendants asked, without objection by Lovins, that this appeal be considered on an expedited basis. They pointed out that the normal appellate review schedule would delay the Court’s decision beyond this year’s deadline for funding requests through the Montana Health Facility Authority. On July 30,1996, the Court issued an order affirming the District Court’s grant of summary judgment but reversing the imposition of Rule 11 sanctions and remanding “for further proceedings pursuant to our opinion in the case.”
ISSUE 1
Must summary judgment be reversed because supporting affidavits filed with the court were not served upon the opposing party?
Rule 56, M.R.Civ.R, allows a party to file affidavits in support of a motion for summary judgment. While the Rule does not specifi,-cally so state, logic and fairness dictate that affidavits so filed shall also be served on the opposing party. We take this opportunity to note for the Bench and Bar that not only is service of affidavits in support or opposition to motions for summary judgment or other substantive motions logical and fair, but also that failure to serve such affidavits may in some circumstances raise an issue of due process.
In this case, the defendants filed the affidavits of Gary Zadick and Allan Underdal in support of their motion for summary judgment, but they did not serve copies of those affidavits upon Lovins prior to the hearing on their motion. The record shows, however, that Lovins failed to preserve his objections to the court’s alleged reliance upon the affidavits of Zadick and Underdal. Lovins raised the matter of failure to timely serve the Zadick and Underdal affidavits only in his own affidavit which was filed with his initial brief on appeal. We will not hold a district court in error for an omission which it was not given an opportunity to correct.
Moreover, a third affidavit, of Toole County Commissioner Denis Freeland, was filed with the summary judgment motion, so that the information contained in the two challenged affidavits was already before the court in another form. In his affidavit, Freeland attested to the matters discussed in the District Court’s summary judgment order. The court’s summary judgment order stated that “an affidavit” had been submitted in connection with the motion for summary judgment.
In its summary judgment order, the District Court also discussed the Resolution by which Toole County proposed the 1996 bond issue. A copy of that Resolution was attached to the Underdal affidavit. The court’s order stated that the bond issue as revealed in that Resolution was essentially the same as the issue involved in the 1995 action. However, the court also stated that there would not be an issue of material fact even if the bond issues were different.
Even assuming that the District Court considered the two challenged affidavits and that this issue was preserved, we conclude that no error has been demonstrated. We hold that, under the circumstances here presented, failure to serve the two supporting affidavits is not grounds for reversal.
ISSUE 2
Did the District Court err in granting summary judgment?
Our standard of review of a summary judgment is the same as that used by a district court — whether, pursuant to Rule 56(c), M.R.Civ.P., material issues of fact exist and whether the moving party is entitled to judgment as a matter of law. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156.
The District Court determined that res judicata barred Lovins from challenging the legality of the proposed bond on the ground that § 7-7-2402, MCA, requires the approval of the electors of the county. The court’s ruling was based on its taking judicial notice of Lovins’ 1995 action.
Section 7-7-2402, MCA, provides:
Election required to borrow money — exceptions. (1) Except as provided in subsection (3), the board of county commissioners may not borrow money for any of the purposes mentioned in this title or for any single purpose in an amount exceeding $500,000 without:
(a) first having submitted the question of a loan to a vote of the electors of the county; and
(b) the approval of a majority of the electors of the county.
(2) If a majority of the votes cast are in favor of the loan, then the board may make the loan, issuing bonds or otherwise as may seem best for the interests of the county.
(3) It is not necessary to submit to the electors the question of borrowing money:
(a) to refund outstanding bonds; or
(b) for the purpose of enabling any county to liquidate its indebtedness to another county incident to the creation of a new county or the change of any county boundary lines.
Lovins points out that this statute was not mentioned in his petition for relief in his 1995 lawsuit. However, as part of its decision in the 1995 action, the District Court stated that Toole County’s acquisition of over $500,000 in debt for bond repayment for construction of the clinic “would require a vote of the Toole County electorate to approve the indebtedness.”
The defendants moved to alter or amend that judgment by removing the above language from the court’s decision, in light of the then-recently enacted Ch. 520, L. 1995. That legislation, which was proposed as HB 421, amended Montana laws relating to construction of county hospitals and limitations upon bonded indebtedness of counties for such purposes. The issue was briefed by both parties.
In its order granting the motion to amend, the court gave thorough written consideration to the effect of HB 421. It stated:
When read with the inclusion of physician office buildings as part of “health care facilities” which can be funded by bonds, the amendment to Section 7-6-2512 makes it clear that the vote of the electorate is not required for approval of certain bonds to construct “health care facilities.” See HB 421, Section 4, amending Montana Code Annotated, Section 7-34-2201.
The above language clearly demonstrates that the issue was considered by the court in the 1995 case.
Lovins argues that the decision on this issue in the 1995 case was, nevertheless, mere dictum. He points out that if an issue’s consideration is not essential to the question involved in the action, then a ruling on the issue is obiter dictum which cannot be a basis for a finding of res judicata or collateral estoppel.
If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta [.]
Restatement (Second) of Judgments, § 27, cmt. h (1982).
A court’s decision on an issue which is before it and which was fully argued by counsel and deliberately considered by the court is not dictum. Bottomly v. Ford (1945), 117 Mont. 160, 167, 157 P.2d 108, 112. Here, although the election requirement issue was briefed and decided in the 1995 case, the issue was not before the court under the pleadings, nor was consideration of it necessary to resolve the case. The dispositive holding in the 1995 case was that Toole County was prohibited from entering into a proposed lease of Toole County Hospital and Nursing Home to a private nonprofit corporation. Because resolution of the election requirement issue was not necessary to resolution of the 1995 case, the court’s consideration thereof, however well-reasoned, is dictum.
Our analysis does not end there, however. We will affirm a judgment which was correct, even if it was granted for the wrong reason. Higham v. City of Red Lodge (1991), 247 Mont. 400, 402, 807 P.2d 195, 196. We therefore proceed to consider whether Toole County was required to put its hospital bonding proposal to a vote of the people.
The title of Ch. 520, L. 1995, describes the act, in part, as “clarifying that certain bonds may be issued without an election.” Section 7-34-2411, MCA, was amended as part of Ch. 520. As amended, the statute provides:
County health care facility bonds authorized. (1) Notwithstanding any limitation imposed by law upon the bonded indebtedness of a county, a county acquiring, erecting, furnishing, equipping, expanding, improving, or maintaining a health care facility under 7-8-2102 or 7-34-2201 or a boarding home under 7-34-2301 may borrow money and issue its bonds for a health care facility or a boarding home, including refunding bonds, in the form and upon the terms as it may determine, payable out of any revenue of the facility or boarding home, respectively, including revenue derived from:
(a) fees and payments for health care or boarding home services;
(b) taxes levied under 7-6-2512 or 7-34-2417 for a health care facility;
(c) grants or contributions from the federal government; or
(d) any other sources.
(2) For the security of the bonds, the county may by resolution make and enter into any covenant, agreement, or indenture and exercise any additional powers authorized to be made, entered into, or exercised by a comity, including those authorized in 7-6-2512 and this part. The sums required to pay principal and interest and to create and maintain a reserve for the bonds may be made payable from any and all revenue of the health care facility or boarding home prior to the payment of current costs of operation and maintenance of the facilities.
Section 7-34-2411, MCA (emphasis supplied). Subsection (2) was added to § 7-6-2512, MCA, as part of the same legislation:
If a county issues bonds under 7-34-2411 to finance or refinance the costs of a health care facility, the board of county commissioners may covenant to levy the tax authorized by this section during the term of the bonds, to the extent necessary, and to apply the collections of the tax to the costs of erecting, furnishing, equipping, expanding, improving, maintaining, and operating the health care facility or facilities of the county or the payment of principal of or interest on the bonds. The pledge of the taxes to the payment of the bonds may not cause the bonds to be considered indebtedness of the county for the purpose of any statutory limitation or restriction. The pledge may be made by the board only upon authorization of a majority of the electors of the county voting on the pledge at a general or special election as provided in 7-34-2414.
Section 7-6-2512(2), MCA (emphasis supplied).
Section 7-34-2414, MCA, was also amended as part of Ch. 520, to provide in relevant part:
Election required on question of issuance of bonds. (1) A county may not issue bonds to which all or a portion of the taxes levied under 7-6-2512 are pledged or to which the general tax authorized under 7-34-2418 is pledged until the question of approval of the issuance of the bonds has been submitted to the registered electors of the county at a general election or a special election called for that purpose by the governing body of the county and the majority of the electors voting on the question have voted in favor of issuing the bonds.
Section 7-34-2414(1), MCA (emphasis supplied).
The proposal involved here, as described in the notice of public hearing attached to Lovins’ complaint, the Toole County Commissioners’ Resolution to issue the bonds, and the sample bond attached thereto, was solely for a revenue bond issue. Payment of principal and interest to the bondholders is to be derived solely from revenues of the Toole County Hospital and Nursing Home, and not from Toole County taxes. This was not a proposal for general obligation bonds, for which an election would have been required under the portion of § 7-34-2414, MCA, underlined above.
Lovins points out that these statutes must be harmonized with preexisting statutes on this subject. He contends that such harmonization necessarily results in a conclusion that while the 1995 amendments abolish limitations on bonded indebtedness for county hospitals, they do not repeal the requirement that borrowing for such purposes is subject to a vote pursuant to § 7-7-2402, MCA.
We disagree. To accept Lovins’ argument would render portions of the 1995 amendments meaningless. In part, the amended statutes provide that indebtedness for repayment of health care facility bonds is not to be considered indebtedness of the county “for the pin-pose of any statutory limitation or restriction.” Section 7-6-2512(2), MCA. Certainly the § 7-7-2402, MCA, election requirement is a “statutory limitation or restriction.” As amended, § 7-34-2414, MCA, requires an election on such a bond issue only when “all or a portion of the taxes levied under 7-6-2512 are pledged or to which the general tax authorized under 7-34-2418 is pledged.” Therefore, we conclude that indebtedness for repayment of the health care facility bonds herein proposed is not to be considered indebtedness of the county for purposes of the § 7-7-2402, MCA, election requirement. Contrary to the assertions in Justice Nelson’s dissent, the present action does bring directly into issue the effect of the statutory amendments enacted as part of Ch. 520. Ch. 520 carves out an exception to the requirements set forth at § 7-7-2402, MCA, the statute relied upon by Lovins.
Any lingering ambiguity in statutory intent is erased by an examination of the legislative history of Ch. 520. In summarizing the purpose of HB 421 to the Senate Local Government Committee, its sponsor, Rep. Ewer, stated:
HB 421 would clarify that districts can borrow using the revenue bond route not subject to a vote of the people and general obligation bonds could be authorized which require a vote of the people.
Minutes of Senate Local Government Committee, Comments of Rep. Ewer, March 21, 1995, at p. 2.
We conclude that under the foregoing statutes, a vote of the electorate is not required before Toole County issues bonds for the proposed addition to the Toole County Hospital and Nursing Home. We therefore hold that the District Court did not err in granting summary judgment for the defendants.
ISSUE 3
Was the court’s sanction an abuse of discretion?
The District Court found that Lovins unreasonably and vexatiously multiplied the proceedings in his two actions concerning the hospital. The court stated that it could by “no stretch of the imagination” find that there existed a good faith argument or reasonable facts on which to base this litigation. As a sanction under Rule 11, M.R.Civ.R, the court prohibited Lovins for the next four years from commencing or filing any further litigation in Toole County as a pro se litigant without first submitting the pleadings to and obtaining permission to file from a district judge.
Rule 11, M.R.Civ.R, provides, in relevant part:
The signature of an attorney or party [on a pleading, motion, or other paper filed] constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
In applying Rule 11, this Court has stated:
Although Montana’s Rule 11 does not state that a trial court must give notice to show cause and hold a hearing before imposing Rule 11 sanctions, we hold that a trial court should do so in order to provide the party with due process. The party should be afforded sufficient time in which to prepare its case against imposition of sanctions. In addition, a trial court should specify in its judgment or order upon which pleading(s), motion(s), or other paper(s) it bases imposition of Rule 11 sanctions.
Lindey’s, Inc. v. Goodover (1994), 264 Mont. 489, 497, 872 P.2d 767, 772.
No hearing was held on the question of sanctions in this case. Lindey’s clearly requires a hearing before Rule 11 sanctions may be imposed. Because of the court’s failure to hold such a hearing, the sanction herein imposed cannot stand and is therefore reversed.
We affirm the judgment of the District Court with the exception of the imposition of sanctions.
JUSTICES HUNT, ERDMANN, LEAPHART and TRIEWEILER concur.
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
On or about July 1, 1913, the state board of land commissioners made an order directing the sale of certain school lands, to be held at Deer Lodge, Powell county, on August 15, 1913. The sale was duly advertised, and included within the lands directed to be sold were three tracts of 160 acres each, in section 10, township 10 north, range 8 west. At the time and place set, the register of state lands appeared, and at public auction offered these tracts for sale in separate parcels. For them the relator herein made the highest and best bids, offering $10 per acre for one of said tracts, and $10.25 per acre for each of the others; and the said tracts were struck off to him by the register, acting as auctioneer. The relator paid to the register fifteen per cent of the purchase price, together with the fees for issuing the certificate of sale, which moneys were received by the register, who in turn delivered a receipt to the relator. Subsequently the relator made demand that a certificate of purchase be issued and delivered to him, but this was refused; thereupon he tendered and offered to the state board of land commissioners the full purchase price as bid by him, with interest, and offered to pay the appraised value of all surface improvements owned by former lessees, and at the same time demanded the issuance and delivery to him of deeds or patents to said tracts. But the state board, refusing to confirm the sale, canceled and disapproved it, rejected the relator’s tender, and denied his demand. It is alleged in the petition that the sale was fair, the sums bid were equal to the value of the land, and that the actions of the board and of the respondents, as members thereof, were arbitrary, malicious, capricious and unjust.
In their reply the respondents state their position as follows: “That subsequent to the time when said land was offered for sale, and the said bid so made by said plaintiff, the said register made due report thereof to the state board of land commissioners, and that at a hearing subsequently had thereon, at which hearing said plaintiff was represented, the said state board of land commissioners was informed and believed, and still believes, that the price so bid for said land by said plaintiff was inadequate, and was less than the real value of said land; that the same at a subsequent sale could be sold at a much greater price; that in fact at said hearing said' board received offers in writing for said land at a price of $3 per acre in excess of the amount so bid at said sale, and, deeming it to the best interests of the state of Montana that said sale be not confirmed and in and by virtue of the authority so vested in said board by the provisions of section 40, Chapter 147 of the Session Laws of 1909, refused to confirm or approve the sale of said lands, and refused, and still refuses, to issue any deed of conveyance to said plaintiff for said land: ’ ’
Upon the hearing it was established by evidence that the action of the board was prompted by the views set forth in the reply. No reason,' however, was assigned for the entertainment of these views, except that the board had received a letter from one McGilvray offering $3 per acre or $1,440 more for the land, and believed that under the special circumstances it might, on a •resale, secure as much as $30 per acre.
The question, then, is whether, under the circumstances stated, the peremptory writ of this court should issue as prayed by the relator, directing that the board confirm the sale to him and cause to be issued a certificate of purchase accordingly, directing that the board accept Ms tender of the balance of the purchase price and cause to be issued and delivered to Mm a deed or patent to the lands, and directing the governor to sign, the register to countersign, and the secretary to seal, such deed or patent. To this but one answer can be given—an unhesitating negative. The grant of lambs for school purposes by the federal government to this state constitutes a trust (State ex rel. Bickford v. Cook, 17 Mont. 529, 43 Pac. 928; State ex rel. Dildine v. Collins, 21 Mont. 448, 53 Pac. 1114; State ex rel. Koch v. Barret, 26 Mont. 62, 66 Pac. 504); and the state board of land commissioners, as the instrumentality created to administer that trust, is bound, upon principles that are elementary, to so administer it as to secure the largest measure of legitimate advantage to tbe beneficiary of it. To that end, and of necessity, tbe board must have a large discretionary power over the subject of the trust; and therefore it has been expressly given “the direction, control, leasing and sale” of these lands, under such regulations and restrictions as may be prescribed by law. (Const., Art. XI, see. 4.) Such “regulations and restrictions” as the legislature has seen fit to prescribe are embodied in Chapter 147, Session Daws of 1909, wherein we find the following provisions: The board shall have the direction and control of all lands belonging to the state, to manage the same as the best interests of the state shall require (sec. 1); the board may direct the sale of any state lands, except as provided in this Act, in such parcels as they shall deem for the best interests of the state (sec. 35); all sales of state lands shall be conducted by the register, but no land shall be sold for less than the minimum price of $10 per acre, nor for less than its appraised value (see. 37); “all sales of state lands * * * shall be subject to the approval and confirmation by the state board of land commissioners, and no sale shall be deemed completed until after such approval and confirmation”. (see. 40). That the board in proceeding under this statute, in determining whether it shall or shall not confirm a sale, acts gitasi-judicially seems so obvious that the citation of authority ought not to be necessary. The matter has been before the courts, however, and with substantial uniformity of result, under conditions at all similar to those prevailing in this jurisdiction. (Routt v. Greenwood etc. Land Co., 18 Colo. 132, 31 Pac. 858; State ex rel. Reed v. Scott, 18 Neb. 597, 26 N. W. 386; State ex rel. Marsh v. Land Commissioners, 7 Wyo. 478, 53 Pac. 292; Miles v. Wells, 22 Utah, 55, 61 Pac. 534; State ex rel. Rutledge v. Eaton, 78 Neb. 202, 110 N. W. 709.)
•Since the board is a constitutional agency charged with the administration of a public trust, since it is vested with discretionary power in that behalf, and since its discretion is invoked whenever it is called upon to confirm or reject a sale, this court cannot compel it to exercise that discretion in any particular way. (State ex rel. Harris v. District Court, 27 Mont. 280, 70 Pac. 981; State ex rel. King v. District Court, 25 Mont. 202, 64 Pac. 352; Montana Ore Pur. Co. v. Lindsay, 25 Mont. 24, 63 Pac. 715; State ex rel. Independent Pub. Co. v. Smith, 23 Mont. 329, 58 Pac. 867.)
In State ex rel. Reed v. Scott, supra, it was said: ‘ ‘ The board of educational lands and funds is a trustee for the sale and leasing of the land set apart for the support of educational institutions, and, to justify the interference of a court, there must be an abuse of the trust. * * * It is the duty of the board to sell or lease the educational lands of the state for the highest price possible to be obtained, and increase and protect by all honorable means the funds for the support of the educational 'institutions; and, so long as the board is faithfully performing its duty in that regard, this court will refuse to interfere.” If this be sound, as we think it is, then in the course complained of the board was actuated by the very considerations which are supposed to govern it. It therefore cannot be said that there was a manifest abuse of its discretion, but the ease is resolved into the mere inquiry whether these considerations were entertained upon an erroneous or insufficient basis. Mandamus cannot be invoked to aid such an inquiry. (State ex rel. Independent Pub. Co. v. Smith, supra; Ex parte Newman, 14 Wall. (U. S.) 152, 20 L. Ed. 877; Douglass v. Commonwealth, 108 Pa. 559; Hoole v. Kinhead, 16 Nev. 217.)
Nor from the bidder’s point of view can any just complaint be made of this conclusion. Bidders at sales of school lands are bound to know that no sale by the register is complete without the approval and confirmation of the board, and that the board in confirming or rejecting a sale by the register will be governed by the interests of the trust which it is charged to administer. The situation of the parties to a sale by the register is thus quite analogous to that of parties to a sale by a receiver, concerning which this court said: “The purchaser at such sale takes the property with notice that the court has power, in its discretion, to set it aside; that, while mere inadequacy of consideration is not ordinarily in itself sufficient to warrant the court in setting aside a sale to a bona fide purchaser, if it shall appear that for some reason, disclosed or undisclosed, the property has been greatly undersold, and the purchaser has, even in good faith, obtained an undue advantage of the persons for whose benefit the sale was made, the court may, in its discretion, set it aside.” (Gazette Printing Co. v. McConnell, 45 Mont. 89, Ann. Cas. 1913C, 1327, 122 Pac. 561.)
It follows that the proceeding must be dismissed, and it is so ordered.
Dismissed.
Me. Chief Justice Bbantly and Me. Justice Holloway concur.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
On July 17, 1905, the parties to this suit entered into a contract wherein the respondents, for a valuable consideration, sold to the appellant all the timber growing upon a certain tract of land situated in Missoula county, upon the condition that the timber be cut and removed on or before July 17, 1910. In the fore part of May, 1910, the appellant, having done nothing toward cutting or removing the timber, and realizing that the contract would soon expire, requested one Fairbanks to see Mr. Arnold and ascertain from him upon what terms an extension for one year could be procured. Fairbanks saw Arnold, who said he would grant such extension for $500, adding'that he was anxious to have the land cleared up, that he would rather have the timber taken off than to have the money, and that “to run over a month or two over the present year there would be no extra charge.” Fairbanks wrote at once to the appellant, advising him to see Arnold. Between June 4th and 8th, appellant went to Plains to see Arnold, but failed to do so,' learning that Arnold was at St. Regis. ' Upon June 27th the appellant sent his bookkeeper, Mr. Keith, to Plains to get Mr. Burleigh to go to Arnold and get an extension. Keith went to Plains and saw Mr. Burleigh, but nothing was done because Arnold was out of town. A few days later Mr. Burleigh'saw, Arnold and talked with him. Touching this conversation, Mr. Burleigh testifies: “He (Arnold) never denied that he had agreed to grant an extension for a year on the basis of $500, but complained and said that he had of course expected that he would see Mr. Donlan, that Mr. Donlan had not showed up or anybody else had not showed up. # * * I asked Mr. Arnold what he would take if the timber could be cut off sooner than a year. He seemed to be anxious to have the timber cut off, and there was no satisfactory understanding arrived at. I think Mr. Arnold told me he would consider the matter.” In the last of June or first part of July appellant himself went to Plains to see Arnold, but Arnold was at Camas Springs. On July 12th Keith sent a check for $500 to Mr. Burleigh, and within.a day or two appellant himself went to Paradise to see Mr. Burleigh and have him close up the deal, which he promised to do if Arnold was at home. Mr. Burleigh saw Arnold on the 13th or 14th and spoke to him about the matter of terms for a shorter extension, and Arnold “said he had come to a conclusion about it, and that the only conditions upon which he would allow Mr. Donlan to cut that timber was * * * a stumpage basis at the same rate as paid to the state. ’ ’ Whereupon Mr. Burleigh, deeming it useless to tender the check, simply kept it and quit the negotiations without making any tender. At no time after the interview between Fairbanks and Arnold was any tender made to Arnold or anything written to him; nor was anything said to him indicative of an acceptance of his terms, save as above set forth.
The foregoing facts, constituting the substance of all the evidence in the ease, were presented under an amended complaint which declared upon two causes of action, viz.: (a) To quiet appellant’s title as owner of the timber; and (b) to compel respondents to “execute a sufficient grant” to the appellant of the right to enter the premises and cut and remove the timber. Issue was joined by the answer, which denied the essential allega tions of the amended complaint, which affirmatively asserted title to any right of possession of the timber in the respondents, which alleged the expiration of the original agreement, and which assailed the validity of the alleged extension upon various legal grounds connected with the oral character of the same. In the reply it is pleaded that the failure to have the extension reduced to writing was due wholly to the acts of respondents, and that the respondents are by their acts estopped to claim the timber or to question the right of the appellant to enter the lands in question and remove the timber therefrom. At the close of plaintiff’s evidence, there was an order of nonsuit, upon which a judgment was thereafter given and entered, denying relief to the appellant and granting the prayer of respondents’ answer. From that judgment this appeal is taken.
The appellant, conceding that under the decision of this court in Hollensteiner v. Missoula Lumber Co., 37 Mont. 278, 96 Pac. 420, no right remained in him to cut the timber left when the contract of July 17, 1905, expired, makes the following contentions: (1) That the evidence discloses an enforceable oral contract between the parties for a year’s extension; and (2) assuming that no such contract was made, the rule of Hollensteiner v. Lumber Co. works a forfeiture which should not be enforced in this case, in view of the equities disclosed by the record. Of these in their order.
1. It is impossible to extract anything more from the conduct of Arnold than a mere offer to extend for a year for a certain consideration. Instead of accepting this offer, the appellant, through the agent chosen by him, asked terms for a shorter extension. No pretense is made that the appellant ever accepted Arnold’s offer until the cheek was sent to Burleigh, on July 12th, and instructions were given him by the appellant on July 13th to close the transaction. This assumed acceptance was purely subjective and of no effect, because the agent chosen by the appellant did not communicate the acceptance nor tender the consideration. On the contrary, he inquired concerning the terms for a shorter extension, and, being met by a flat refusal to grant any extension, departed without further ado. If we imagine the respondents seeking to recover from the appellant the price of this alleged extension, some notion may be gained of the utter infirmity of the claim that a contract was entered into therefor. A contract is not created by a mere offer, even though kept open for nearly two months, which is revoked before acceptance. The principles involved are too fundamental and too elementary for discussion. (Rev. Codes, sec. 4992; Brophy v. Idaho P. & P. Co., 31 Mont. 279, 78 Pac. 493; State ex rel. Henderson v. Board of State Prison Commrs., 37 Mont. 378, 96 Pac. 736; Monahan v. Allen, 47 Mont. 75, 130 Pac. 768.)
2. Assuming that the application to this case of the rule of Hollensteiner v. Lumber Co. involves a loss in the nature of a forfeiture, the views of this court, as recently expressed upon this subject, become pertinent. In Clifton v. Willson, 47 Mont. 305, 132 Pac. 424, attention was called to the rule at common law which denied recovery for payments made or acts done by one who has stopped short of full performance of his contract, and to the circumstance that whenever relief was attainable. it became so by virtue of the rule of equity against forfeitures; that the rule against forfeitures, so far as this state is concerned, is expressed in section 6039 of our Codes, and a party seeking its benefit must by his pleading and proof bring himself within it. It is not enough to say on appeal that a loss in the nature of a forfeiture may be incurred by enforcing the terms of a contract which the parties themselves have made; 'but, to secure the protection of section 6039, it must be invoked, and “the very minimum requirement is that the party invoking the protection afforded by that section must set forth facts which will appeal to the conscience of a court of equity. ’’ (Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 Pac. 700.) A concrete application of these rules illustrating some circumstances authorizing relief from a loss in the nature of a forfeiture is furnished by the case of Cook-Reynolds Co. v. Chipman, 47 Mont. 289, 133 Pac. 694. The effect of all these cases is that relief from forfeiture cannot be awarded to one who' fails to show that his breach of duty was not grossly negligent, willful, or fraudulent.
The respondents vigorously and with some reason contest the sufficiency of the pleadings as a basis for relief from for-' feiture. But, passing that, we are without warrant for such relief in the facts established on the trial. The appellant, holding a five-year contract, the expiration of which he must have known would leave him without any right, waited four years and ten months before taking any action, either toward removing the timber or toward securing an extension. About sixty days before the end, he authorized an agent to negotiate for terms of an extension. At that time he could have removed the timber by going to some extra expense. The agent sent to negotiate for terms of extension secured an offer which he communicated to the appellant without delay, and the appellant could by a prompt acceptance of the offer have settled the matter beyond question. Presumed to know that the law afforded the privilege to Arnold to revoke his offer at any time before notice of acceptance, the appellant nevertheless delayed even his subjective acceptance until within a few days of the end of the contract, and then through his agent failed to communicate that acceptance before the offer was revoked. In explanation it is suggested that Arnold’s statements that he would rather have the timber taken off than have the money, and that “to run over a month or two over the present year there would be no extra charge,” lulled the appellant into a false security. Whether these statements, if communicated to the appellant, would have justified his course we do not determine, because the appellant does not prove that he ever heard of them or that they ever misled or influenced him in any way. The only rational inference is to the contrary. It is true that he says, “I relied absolutely on anything Mr. Arnold said to Mr. Fairbanks and anything Mr. Fairbanks would say to me”; but he could not rely on anything said to Fairbanks unless Fairbanks communicated it to him, and the only communication from Fairbanks to him was the letter sent immediately after Fairbanks had talked with Arnold. This letter “was to the effect that he went down and seen Mr. Arnold and Mr. Arnold would give an extension for one year for $500 and for me to see Mr. Arnold.” The endeavors of appellant, in person and through Mr. Burleigh, evince to our minds, not reliance upon the statements now urged as an estoppel, but a desire to secure other terms than those offered, as well as an appreciation of the necessity to get into written form whatever might be ultimately agreed upon. When all is said for appellant that can be said, still the record does not make any adequate excuse for his failure to protect his interests under the contract, nor disclose wherein the conscience will be shocked by permitting the matter to rest where his neglect has placed it. (Fratt v. Daniels-Jones Co., supra.)
The order of nonsuit was correct, and the judgment founded thereon is affirmed.
Affirmed.
Me. Chief Justice Bkantly and Me. Justice Holloway concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was commenced in the justice’s court of Hellgate township, Missoula county, on March 7, 1912, to recover the sum of $75 alleged to be due plaintiff for services rendered to defendant at his special instance and request, as an attorney at law. On November 15, plaintiff was awarded judgment for $44.50, with costs. The defendant having given notice of appeal to the district court and filed his undertaking with the justice, the record was lodged with the clerk of the district court on December 9. Counsel for plaintiff thereupon filed a motion to dismiss the appeal on the grounds (1) that the notice of appeal was insufficient, and (2) that the undertaking was insufficient. To obviate the objection to the undertaking, the defendant, on January 11. 1913, and prior to the submission of the motion, filed a new undertaking, approved by one of tbe judges of tbe district court. The motion was thereafter heard and sustained, and on February 8, 1913, formal judgment of dismissal was entered. The defendant has appealed.
It does not appear upon which ground of the motion the court based its action. If it was based upon the first ground, it was error. The purpose of the notice is to give to the adverse party information of the fact that the cause has been removed to the appellate court, so that he may appear and protect his rights in the further proceedings to be had therein. (State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 Pac. 580; Davidson v. O’Donnell, 41 Mont. 308, 110 Pac. 645; Jenkins v. Carroll, 42 Mont. 302, 112 Pac. 1064; Valadon v. Lohman, 46 Mont. 144, 127 Pac. 88.) This being its purpose, obviously it must convey to the adverse party sufficient information to enable him to know what is required of him. It need not go further. The notice in this case is almost identical in form and substance with that considered in Valadon v. Lohman, supra; and, while it does not mention the amount of the judgment, there can be no doubt that it served to give to plaintiff all the information it was necessary for him to have.
Section 7128 of the Revised Codes provides: “No appeal shall be'dismissed for insufficiency of the undertaking thereon, or for any defect or irregularity therein, if a good and sufficient undertaking be filed in the district court at or before the hearing of the motion to dismiss the appeal, which undertaking must be approved by the district judge.” While the second undertaking is not a model in form, it is in twice the amount of the judgment, including costs, and stipulates for payment of the judgment and costs upon a withdrawal or dismissal of the appeal, or the amount of any judgment and all costs that may be recovered against the defendant in the action -in the district court. This meets all the requirements of the statute prescribing the amount and conditions of such an undertaking. (Rev. Codes, see. 7124.) It is not rendered invalid by reason of the fact, as in the case here, that it contains other conditions than those prescribed by the statute, but which do not in any wise affect the liability of the sureties under the conditions prescribed. Section 7116, relating to dismissal of appeals by the supreme court, contains a provision substantially the same as section 7128, supra. This provision was considered and construed by this court in Pirrie v. Moule, 33 Mont. 1, 81 Pac. 390. It was held that, when the original undertaking on appeal is void, the filing of the substituted undertaking, though approved as therein required, does not preserve the appeal; the purpose of the provision being to preserve the appeal only when the undertaking has not wholly failed to meet the requirements of sections 7100 et seq., prescribing the mode of taking appeals to the supreme court. Since the reason for the enactment of both provisions is the same, the construction given to the former must, we think, be given to the latter also. Whether, therefore, the order of dismissal here can be sustained on the second ground of the motion depends upon a determination of the question whether the first undertaking was void for all purposes or was only insufficient in the sense that it did not meet all the requirements of section 7124.
Aside from the formal recitals, the undertaking consists of two paragraphs. In the first the sureties undertake and promise that “the appellant will pay all costs which may be awarded against him on appeal or on a withdrawal or dismissal thereof, not exceeding $117.80,” the sum so specified being twice the amount of the judgment and costs. The second paragraph is as follows: “And, whereas, the appellant is desirous of appealing said action and staying the execution of said judgment, jointly and severally undertake and promise in the further sum of $117.80, said sum being the amount of double the amount of said judgment so appealed from and costs; that if said judgment appealed from be affirmed or the appeal dismissed or withdrawn, or if judgment be recovered against him in the said action in the district court, not exceeding the sum°of $117.80.” It is apparent that the person who drew this instrument proceeded upon the assumption that it was necessary to make separate provisions, one to secure the payment of the costs, as distinguished from the judgment proper, and one to secure payment of the judgment itself. It must he conceded that the second clause is wholly abortive, because its terms are not sufficiently definite and explicit to impose upon the sureties any obligation to pay any amount upon any contingency to any person, though it indicates a purpose to bind them to pay the judgment upon the happening of any of the contingencies prescribed by the statute. The first clause, however, contains a specific promise to pay an ascertainable amount upon the happening of any one of the contingencies prescribed, and is not wholly abortive because it fails to name the plaintiff as the obligee. The obligation assumed could not be discharged otherwise than by payment to the plaintiff of the costs awarded on the appeal, or on a withdrawal or a dismissal thereof. For illustration: If a new undertaking had not been substituted, and after a final disposition of the action in favor of plaintiff by trial, or withdrawal or dismissal of the appeal, in an action brought against the sureties to recover the amount of the judgment and costs, they would not be permitted to say that they had not bound themselves to pay the costs. The undertaking was therefore good as an undertaking to pay costs of the appeal, and for that reason is not wholly void.
The judgment is therefore reversed and the cause remanded for further proceedings.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Sannbr concur.
|
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] |
HONORABLE JOSEPH B. POINDEXTER,
a Judge of the Fifth Judicial District, sitting in place of MR. JUSTICE SANNER, disqualified,
delivered the opinion of the court.
Action for personal injury. The plaintiff brought this action for injuries sustained by him while employed as a helper or laborer in the machine shop of the defendant Chicago, Milwaukee & Puget ■ Sound Railway Company on April 4, 1912. The amended complaint, after the usual allegation as to the ineor poration of defendant company and other formal allegations, and that the defendant Feeley was a machinist in. the employ of the defendant railway company, and acting as a superintendent for and on behalf of said defendant railway company and in immediate charge of a certain lathe in- the machine shop of the railway company at Miles City, Montana, and that the plaintiff was working under his immediate direction and supervision at the time of the injuries complained of, alleges that it was the duty of the defendants “to provide suitable and safe appliances and to use due and proper skill, care, and diligence in providing suitable, safe, and sufficient appliances for the transfer and passage of said wheels or trucks to and from said lathe”; that the defendants did not provide such suitable, safe, sufficient, or any appliances for such work, but, on the contrary, negligently and carelessly failed to provide any appliances whatever for the safe and proper handling of said wheels or trucks, and negligently and carelessly caused said wheels or trucks to be rolled from the place where they had been detached from the engine across the floor of said machine shop, without providing any suitable means of holding or controlling the same, and that such method and means of handling said wheels or trucks was unsuitable, unsafe and inadequate, all of which was known to the said defendants and each thereof; “that after said drive wheels had been removed from said engine they were, under the direction and control of said superintendent, Joseph Feeley, being moved by the plaintiff and certain other servants, agents, and employees of the said defendant company, each and all of whom were then acting under the immediate supervision, direction, control, and orders of the said defendant Joseph Feeley; that after said drive wheels had been moved from said track in the direction of said lathe, the said defendant Joseph Feeley caused said wheels to be stopped and blocks to be placed under said wheels to prevent the same from rolling or moving; that after said drive wheels had been blocked as aforesaid; the plaintiff, in the proper discharge of his duties-as such helper or laborer, and upon the order of the said defendant Joseph Feeley, was engaged in reach ing down into a certain pit below the floor of said machine shop, and in taking therefrom certain hooks attached to a chain, and which said hooks and chain were then and there a part of the appliances furnished by the said defendant company, and by the said defendant company used for the purpose of hoisting wheels or trucks from the floor up to and upon said lathe in order that the same might be repaired; that before said hooks and chain would be attached to said wheels, in the ordinary course and conduct of such operations, it was necessary for said wheels to be moved nearer to said lathe than they were at the time they were so blocked as aforesaid; that while this plaintiff was then and there so engaged in the proper discharge of his duties as such helper or laborer, as hereinbefore alleged, and while then and there in a stooping or kneeling position with his back towards said wheels, the said defendant Joseph Feeley carelessly and negligently gave an order to those certain servants, agents, and employees of the said defendant company who were assisting in'the moving'of said wheels, in relation to the blocks which had been placed under said wheels, the exact language of which said order plaintiff is now unable to state, the substance and effect of said order being, however, a direction to said servants, agents, and employees to remove said blocks from under said wheels; that said servants, agents, and employees of said defendant company obeyed said order and direction, and negligently and carelessly moved or displaced the block from in front of said wheels, while this plaintiff was then and there in a place of danger in such kneeling position in front of said wheels, and without any warning to this plaintiff, and then and there negligently and carelessly caused and permitted said wheels to roll over, onto, and upon this plaintiff, thereby carelessly and negligently injuring plaintiff upon his body and person, as hereinafter more particularly alleged.” The plaintiff’s injuries are then described, and damages are claimed on account thereof. The defendants admit the employment of plaintiff as alleged and the injuries, but deny the negligence charged by the plaintiff, and set up that if there was any injury to plaintiff, it was due to the negligence of a fellow-servant. They also plead contributory negligence and assumption of risk by plaintiff. On .the trial verdict and judgment were for the plaintiff. Defendant’s motion for a new trial was granted, and plaintiff has appealed.
The order granting a new trial was general in its terms, and, regardless of the reasons given by the court below for its ruling, if it may be justified upon any of the grounds assigned in the notice of intention to mpve for a new trial, it must be affirmed. The notice of intention contained all the statutory grounds, including insufficiency of the evidence to justify the verdict, and that the verdict is against the law. Many alleged errors were urged as warranting the order. It is only necessary to consider the assignment of insufficiency of the evidence, to show that the court was correct in entering the order appealed from.
It appears that the plaintiff and other laborers were members of a wheel press gang at defendant company’s shop in Miles City, and on April 4, 1912, were engaged in moving the drive wheels of a locomotive from a tra'ck to a lathe, some thirty feet distant, for the purpose of truing up the wheels; that the wheels were very heavy, and it was necessary to block them in order to hold them stationary; that for this purpose they used short wooden blocks about two inches by six or eight inches, placed in front of and behind the wheels; that this blocking was required on account of the block of iron cast between two or four of the spokes of each wheel, called a counterpoise or balance; and that defendant Feeley was in charge of the lathe. The testimony is conflicting as to whether or not the work of moving the wheels by the wheel press gang on the occasion referred to was under the direction and supervision of defendant Feeley. Testimony was also given in regard to the appliances in use; but, as we view the case, it is needless to encumber this opinion with a recital thereof.
Plaintiff testified that they had brought the wheels from the track to the usual position in front of the lathe where they were blocked preparatory to attaching the tackle necessary to raise the wheels into the lathe; that the counterpoise or weight was in a forward position when the wheels were so blocked; that a portion of this tackle was in a pit directly in front of the place where the wheels were stopped; and that it was a part of his duty to get down in the pit and take out the tackle; that he helped to block the wheels with the .wooden blocks, placed as above described; that the block “was sufficient to hold the wheels if not removed”; that the pit was about eighteen inches deep, and that he was reaching down into the pit when injured. In describing the accident he said: “ I got down sort of this way [indicating] to reach down into the pit in this position. When I was down in that position the wheels were just about there [indicating]. This was after the wheel's had been blocked. While I was in this position Mr. Feeley said: ‘All right boys,’ and the blocks was kicked away and the wheels came rolling right onto my left leg. When I was in this position Mr. Feeley was standing in frpnt at the side of the wheel that went over my leg, and just beside the block which was placed in front of the wheel. Some person kicked the block away that I had placed in front of the wheel. I did not see any other person near the block at the time than Mr. Feeley. At this time I was facing the lathe. I did not see Mr. Feeley kick the block. I was lifting the chains out at the time it was kicked. While I was in this position I heard a sound as if some one was ordering or saying all was right and a sound in the nature of a sort of a knock or shove as if the block was kicked along the floor, and just at that moment I received the injury.” He stated several times during the course of his testimony that the blocks were sufficient to hold the wheels, and also stated that he had often gotten the chains from the pit, that he knew the wheels were very heavy, and that he had worked for three months in the shop. On cross-examination he testified: “After I was stooping down there I heard somebody say something; it was a sound of a voice; I simply heard somebody talk. It appeared to me like it was ‘ Go ahead, boys. ’ That was what I heard. Q. Who was it said that ? A. I don’t— Mr. Feeley. Q. Well, how do you know it. was Mr. Feeley ? A. It was his orders. Generally he gave the orders. Q. Well, do you know that he gave them at that particular time ? A. Yes, sir; because we were all under his orders and had to obey them. He gave them at that particular time. There was no one else to give orders. Q. Well, are you positive in what you heard that was said, or do you just think you heard somebody say something?. A. No, sir; I don’t think it.” And again he said: “I heard the sound of a block kicked, but I didn’t see anybody kick it. I heard the sound that somebody struck it with their toe.” And again he said: “I have never known of the blocks coming out from under the wheels, and never known of the vibration of the shops to jar the blocks from under the wheels.” He also testified: “Q. And you knew that if it rolled forward and your leg was in front of it, it would probably roll onto your leg, didn’t you? A. Yes, and I knew it couldn’t roll forward if it was blocked. I was sure that it was blocked before I got in that position. ’ ’ The accident was described as* happening in about the same way, by the witness Polys. It is apparent from plaintiff’s testimony that the wheels were taken from the track to the lathe in safety, and that little remained to be done but to attach the tackle and raise the wheels into position in the lathe.
It is urged by plaintiff that the defendant railway company wras negligent in failing to provide reasonably safe appliances for doing the work, and that its failure to provide safer means than those in use at the time, to transfer the wheels from the track to the lathe, was the proximate cause of plaintiff’s injury. The wheels had reached a position in front of the lathe, and were blocked to prevent them rolling either forward or backward. It is apparent, as testified to by-plaintiff, that the accident could not have happened had the block not been removed from in front of the wheel. While the defendant railway company may have been negligent in failing to provide reasonably safe appliances for the plaintiff to do the work of moving the wheels—a question we do not now decide—yet such failure in no wise contributed to plaintiff’s injury. It was the negligent removal of the wooden block from under the wheel, permitting the wheel to roll on plaintiff, that was the proximate cause, of the injury; no other conclusion can be drawn from the evidence.
It is not every negligent act that gives a'cause of action; it is only such neglect of duty as bears a direct, proximate, and causal relation to the injury. (Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243; Andree v. Anaconda C. M. Co., 47 Mont. 554, 133 Pac. 1090.) This court has defined proximate cause as follows: “The proximate cause of an injury is that which in a natural and continuous sequence, unbroken by any new independent cause, produces the injury, and without which the injury would not have occurred.” (Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189, 100 Pac. 971; Therriault v. England, 43 Mont. 376, 116 Pac. 581.) “It is a rule, so fundamental as to be axiomatic, * * * that before negligence, however established, can become the basis of recovery, causal connection must be shown between it and the injury complained of.” (Westlake v. Keating Gold Mining Co., ante, p. 120, 136 Pac. 38.) In De Sandro v. Missoula Light & Power Co., ante, p. 226, 136 Pac. 711, this court said: “It is not sufficient that the plaintiff prove the injury. It is necessary that he go further and show by some substantial evidence the causal connection between the negligence of the defendant and the injury; for the master cannot be held liable if his negligence was merely a condition, as opposed to the efficient cause of the injury. (Labatt on Master and Servant, 2d ed., sec. 1570; Monson v. La France Copper Co., supra.) The efficient cause may be shown by indirect evidence, but it cannot be said to be established by such evidence unless the circumstances are such that they not only tend affirmatively to show it, but also tend to exclude any other. (Monson v. La France Copper Co., supra; McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40; Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515.) ”
Applying these principles to the present ease, we conclude that the only ground of negligence, alleged by plaintiff and sus tained by the evidence, which bore a causal connection with the plaintiff’s injury, was the careless and negligent removal of the block of wood from in front of the wheel. The only logical inference that can be drawn from the testimony of plaintiff and his witnesses is that this obstruction to the movement of the wheels was removed by defendant Feeley or by his order, and that this was the proximate and sole cause of the injury. The appliances provided brought the wheels to the lathe in safety, and these appliances, whether safe or otherwise, or the failure of the defendants to provide other appliances, had no direct connection with the cause of plaintiff’s injury. At the time plaintiff was injured, the work of moving the wheels to the lathe, for the time at least, had ended; so necessarily had ended the use of the appliances provided for such purpose. Had the block of wood not been removed, the accident could not have happened, and, as plaintiff testified, he could not have been injured. It is therefore apparent that the failure tó provide different or safer means to move the wheels from the track to the lathe in no wise contributed to plaintiff’s injury. It may be that some safer means might have been devised and put in use by the defendant company that would have lessened the probability of accident, but the law does not require the employer to select the safest appliances nor the best method for their operation. The employer is not an insurer, and absolute safety is unattainable; his duty is discharged when he furnishes the appliances in general use for the same purpose and operated in the same way by reasonably prudent and careful men under like circumstances. (Kinsel v. North Butte Min. Co., 44 Mont. 445, 120 Pac. 797; Gregory v. Chicago, M. & St. Paul Ry. Co., 42 Mont. 551, 113 Pac. 1123; Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904; Southern Ry. Co. v. Lewis, 110 Va. 847, 67 S. E. 357.) In this ease it was not the failure to furnish reasonably safe appliances, but the misuse of the appliances provided, that caused the injury.
The jury were instructed that they were to consider the defendant Feeley as a fellow-servant of plaintiff; also, if they should find from the evidence that the defendant railway company had not in use at the place of the accident reasonably safe and suitable appliances or methods for doing the work, and if they should find that plaintiff’s injuries were directly and proximately caused by the want of such safe and suitable appliances or methods, then the railway company would be liable even if they should also find that the negligent act of a fellow-servant aided or concurred in causing the injury. As has been shown, the proximate cause of plaintiff’s injury was the negligent act in removing the obstruction from under the wheel; hence the failure to provide reasonably safe appliances had no causal connection with plaintiff’s injury. Under the instructions the jury should have returned a verdict for the defendants. The court’s order setting aside the verdict was therefore justified.
Respondents insist that plaintiff assumed the risk of such an injury when he entered defendant company’s employ, and for that reason cannot recover in any event. It cannot be said that the .careless and negligent removal of the block of wood from under the wheel was one of the risks of the business assumed by the plaintiff. But respondents urge that plaintiff assumed the risk of injury resulting from the negligence of fellow-servants, and that, as the injury was the result of the negligence of a fellow-servant, plaintiff cannot recover. While it is true ■that plaintiff assumed the risk of injury from negligence of fellow-servants, under the evidence it cannot be said, as a matter of law, that defendant Feeley was the fellow-servant of plaintiff. W'e think there was sufficient conflicting testimony as to the character of the employment, the duties and authority of Feeley, to raise a question for the jury, and that this question should have been submitted to the jury under proper instructions. Upon another trial, should the jury find that Feeley was the fellow-servant of plaintiff, the verdict would necessarily be that the defendant company is not liable for plaintiff’s injuries. On the other hand, should the jury believe the plaintiff’s story and find that Feeley was a vice-principal of defendant company, and not a fellow-servant of plaintiff, and that plaintiff was not guilty of contributory negligence, then the verdict would necessarily follow for plaintiff.
The order granting a new trial is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Yictor M. Foster having been declared elected alderman from the second ward of Clyde Park, this proceeding was instituted to contest his right to the office upon the ground that at the time of the election he had not been a resident of the town of Clyde Park, or of the second ward thereof, or of the territory embraced within either for two years immediately preceding his election. Upon the trial the court found these charges to be sustained and concluded that the contestee was ineligible to the office. A judgment was rendered and entered ousting him and canceling his certificate of election. From that judgment this appeal is prosecuted.
The election was the first after the incorporation of the town of Clyde Park, and this appeal raises but a single question, viz.: Does section 3228, Revised Codes, apply to officers elected at such an election? The section reads as follows: “No person is eligible to any municipal office, elective or appointive, who is not a citizen of the United States, and who has not resided in the town or city for at least two years immediately preceding his election or appointment, and is not a qualified elector thereof.”
The history of a -statute frequently furnishes the very best key to its interpretation. Prior to 1887 there were not any general municipal laws in the territory of Montana. Cities were incorporated and governed by special Acts, and the provisions of these several special statutes were not at all harmonious.- In one city the qualifications of an alderman were much more exacting than in another. In an Act entitled “An Act relating to the formation of municipal corporations,” approved March 10, 1887, is to be found our first general Municipal Act. It was comprehensive and covered the subject of municipal organization and control thoroughly. It was incorporated in the Compiled Statutes of 1887 as Chapter 22, Fifth Division, General Laws, sections 315-440. The Act provided for the incorporation of cities and towns, for the annexation of additional territory, for municipal elections, enumerated the officers of towns and of cities of the different classes, and defined the duties of each. Section 364 prescribed the qualifications of the mayor, and section 365 the qualifications of an alderman. In each there was the provision that he must be a taxpaying freeholder. By an Act of the fifteenth extra session, approved .September 14, 1887, these two sections were amended by omitting the “freeholder” requirement. Other amendments to the Act were made in 1889 and 1893. When the Code Commissioners submitted to the legislature the drafts of the proposed Codes, they accompanied them with a brief report giving something of the history of the different provisions in a general way. Speaking of the laws for the government of counties, cities, and towns (secs. 4100-5133, Political Code), the commissioners said, “Existing statutes have been followed as far as practicable”; and a comparison of the Municipal Act of 1887, as amended, with the draft of the Municipal Code as submitted, discloses that the commissioners had found it practicable'to use most of the existing statutes. Many of these sections are copied verbatim, while the general framework of the Act of 1887 is preserved. However, in lieu of sections 364 and 365, above, prescribing, respectively, the qualifications of mayor and alderman, the Code Commissioners substituted a single section (section 4752, Political C.ode, now section 3228, Revised Codes, above) fixing the qualifications of all municipal officers, whether elected or appointed. The Political Code was passed and approved substantially in the form in which it was submitted, and no change whatever was made in section 4752. On March 7, 1895, the same legislature which had theretofore, on February 25 of the same year, passed the Political Code, also phssed an Aet entitled “An Act to amend sections 364 and 365 of the Fifth Division, Compiled Statutes of Montana, and the amendments thereto approved September 14, 1887.” The effect of this amendment was to restore the provision that the mayor or alderman must be a freeholder, and those two amended sections were incorporated in the Political Code as sections 4749 and 4753, respectively.
In its plan the general Municipal Aet of 1887 was a single bill having 126 sections. When codified, it was treated as one chapter (Chapter 22, Fifth Div., Comp. Stats., above). The Code Commissioners arranged their proposed Codes in Parts, Titles, Chapters, Articles, etc., and their .proposed municipal statutes were all under Title 3, Part 4, of the Political Code. The proposed statute upon the subject, “Organization and government of cities and towns,” was found in Chapter 3, and this Chapter was subdivided into Articles. These provisions thus arranged were all adopted without substantial change. Article 1 of Chapter 3 is entitled “Proceedings for the organization of a city or town and adding contiguous territory.” Article 2 is entitled “Officers and elections.” The first four sections of Article 1 deal with the incorporation of cities and towns and the election .of the first complement of officers. In their preparation the Code Commissioners simply borrowed sections 315, 316 and 318 of the Compiled Statutes above, with their amendments. There is not a single substantial change, even in verbiage. The remaining sections of Article 1 deal with additions and are substantially copied from sections 319, 321, and 322 of the Compiled Statutes. In the remaining Articles of-Chapter 3 the commissioners departed somewhat more generally from the Municipal Act of 1887 with its amendments, but covered every subject in the same general way.
The Municipal Act of 1887 was a comprehensive whole. Its language throughout forbids the assertion that the qualifications prescribed for mayor and alderman did not apply to those chosen at a first election after incorporation, as well as to like officers chosen at subsequent elections. Throughout all the amendments made to that Act the same general unity of plan was preserved. In borrowing from it so liberally it would seem that the Code Commissioners and the legislature of 1895 must have had in mind the same purpose as the legislature of 1887, viz., a comprehensive Code of Laws applicable to a municipal corporation ■from its organization and dealing with its formation, its officers and agents, its powers and its duties. Section 4752, as reported by the Code Commissioners, was retained, but apparently the legislature was not fully satisfied with it and amended sections 364 and 365; and, by thus restoring to the law the provision that the mayor or alderman must be a taxpaying freeholder, the legislature evinced its purpose again to preserve, as far as practicable, the plan and the provisions of the Municipal Act -of 1887.
Counsel for appellant contend, however, that, since section 3228 is found in Article 2 of Chapter 3, it ought not to be construed as applicable to officers whose election is provided for in Article 1 of that Chapter. They insist that “these two Articles are absolutely independent of each other.” But, if they are independent of each other for any purpose, they are for all purposes, and counsel’s argument pursued to its legitimate conclusion, if adopted, would lead to this result: That between a first election after incorporation and the next annual municipal election the newly incorporated city or town would have a full quota of officers, but they would be without authority to act and could not receive any salaries or other compensation, for the provisions for salaries are found in Article 2, while the statutory delegation of powers is found in other Articles of Chapter 3. This absurd conclusion only emphasizes the fallacy of the argument and serves to impress the idea that the entire Municipal Code, comprising all of Title 3 (sections 3202-3549), is to be treated as one statute whose provisions are interdependent.
But appellant’s position is untenable for another reason. In the absence of any statutory rule we would be required to construe the two Articles together, if possible, for they are both of the same Chapter, which deals with one subject. (Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29.) This, however, is the rule of construction provided by the Codes for their own interpretation. (See. 3554, Rev. Codes.) There is not any conflict between Article 2 which prescribes the qualifications of an alderman, and Article 1 which does not, and therefore the rule of section 3557, Revised Codes, has no application. It is only in case of conflicting provisions that the rule which requires one Article to be treated independently of another can be invoked. The division of the Codes into Parts, Titles, Chapters, Articles, and sections is a mere device for convenience, and no implication or presumption of a legislative construction is to be drawn therefrom. (Subd. 3, sec. 3562, Rev. Codes.)
From its legislative history and its obvious meaning, when viewed in the light of the elementary rules of construction, our conclusion is that section 3228, above, is of general application in the Municipal Code and controls aldermanic candidates who aspire to office at a first election after incorporation, as well as to those who seek like honors at subsequent elections, and that the trial court’s conclusion from the undisputed facts is correct.
The judgment is affirmed.
■Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by H. L. Frank to recover a balance alleged to be due him on account of money paid out and expended for the use and benefit of the defendant at his special instance and request, between November 1, 1899, and September 2, 1903. Frank thereafter died and the executor of his will was substituted as plaintiff in his stead. In November, 1899, Frank and the defendant being the owners of the Gem quartz lode mining claim situate in Silver Bow county, the former of a three-fourths interest and the latter of the remaining interest, began to conduct mining operations thereon, each agreeing to bear his proportionate share of the necessary expense. Frank assumed personal charge of the work, paid the entire expense, and from time to time rendered to the defendant statements of the amount due from him. These amounts were paid. This plan was pursued until the enterprise was abandoned by the defendant, as he claims, on July 31, 1901, or; as plaintiff claims, on October 5, 1901. Thereafter Frank remained in possession of the joint property until some time subsequent to January, 1907, when it was sold; but whether he continued active mining operations does not appear. During the time intervening between November 17, 1902, and November 24, 1903, he expended for watchmen to guard the buildings upon the property, and for insurance, etc., $1,810.50. For the time intervening between the latter date and January 1, 1907, he leased the shaft upon the property to F. A. Heinze, who used it to develop adjoining property. On this account he was paid by Heinze $1,900. The balance for which recovery is sought is made up of defendant’s proportion of the amounts expended in the conduct of the joint operations during July, August, September and five days of October, 1901, together with the sum expended for insurance, etc., with interest, less a credit of a one-fourth of $1,900' as of date of January 7, 1907, when payment of it was made. The defendant denies that any amount is due. He alleges that on September 14, 1901, he notified Frank that he would no longer be responsible for any of the costs or expenses of operating the property ; that on October 5 he again gave notice to Frank in writing that the agreement was at an end; that on or about that date, or a short time prior thereto, he and Frank had a final accounting and settlement of all the matters alleged in the complaint, except the amount expended for watchmen, etc., liability for any part of which he denies; and that upon such settlement he paid to Frank all sums of money claimed by him to be due on account of their joint operations prior to that date. The defendant’s answer also alleges a counterclaim for $3,125, money overpaid to Frank at the time of the settlement. This claim was abandoned at the trial, the parties submitting evidence upon the issue of final accounting and settlement. The court found generally in favor of the defendant and awarded him judgment for costs. Plaintiff has appealed from an order denying his motion for a new trial, and has submitted the question whether the evidence is sufficient to justify the finding.
The action was brought as one at law. The parties proceeded in the trial upon the theory that it is an action at law. "We shall not discuss the question whether this is the correct theory. We must, however, accept the position which the parties defined for themselves in the trial court and consider the case accordingly, though counsel for defendant now earnestly contends that we should review the case as one in equity for a partnership accounting; for notwithstanding it is the settled rule, as he contends, that one partner cannot prior to a settlement and accounting sue his copartner at law with reference to the partnership transactions or dealings (Riddell v. Ramsey, 31 Mont. 386, 78 Pac. 597; Boehme v. Fitzgerald, 43 Mont. 226, 115 Pac. 413; Doll v. Hennessy Mercantile Co., 33 Mont. 80, 81 Pac. 625), it is also the rule, equally well settled, that after a party has assumed a defined position in the case in the trial court, he may not thereafter assume a different position in this court. (Dempster v. Oregon Short Line R. R. Co., 37 Mont. 335, 96 Pac. 717; Galvin v. O’Gorman, 40 Mont. 391, 106 Pac. 887; Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.) There are recognized exceptions to the general rule as announced in these cases, but this case does not fall within any of them. (21 Ency. Pl. & Pr. 664.) If counsel desired to avail himself of the rule which he now invokes, he should have done so in the trial court by appropriate method (15 Ency. Pl. & Pr. 1010; Kunneke v. Mapel, 60 Ohio St. 1, 53 N. E. 259). Instead of doing this, however, he relied upon a settlement of the partnership affairs and a final discharge of defendant from his association with it, by payment of the ascertained balance due from him in September, 1901. He is bound to retain the position thus assumed. His apparent reason for a change of position, though not stated in so many words, is that, whatever may be the condition of the evidence upon the issue tried, this court should, in reviewing the case, hold that the plaintiff is subject to the imputation of laches, and hence that he ought not to recover.
Passing to the merits of the case as made, we do not think the conclusion reached by the trial court should be disturbed. It would serve no useful purpose to reproduce and analyze the evidence in detail. The plaintiff’s evidence tended to show that the dissolution of the partnership took place on October 5, 1901, and that there was then chargeable to defendant his share of the expenses incurred for the months of July, August and September, and that these items, together with the amounts subsequently expended for watchmen, etc., less a credit for defendant’s proportionate share of the rent received from Heinze, have not been paid. To fix the date of the settlement he relied upon a written notice sent to Frank by defendant on that day, in which he told Frank that he would not thereafter be responsible for any further outlay upon the mining operations. The defendant relied upon a verbal notice of dissolution, which He testified he had given Frank about the middle of July that he would not be responsible after August 1, and also a receipt in full for all charges due from him for the months of- April, May, June and July. This receipt he obtained from Frank on September 14. He testified that at that time he and Frank reached a full understanding and settlement, and that he thereupon gave his cheek for the balance then due. The receipt and canceled check tend to corroborate his statement. Questioned ■with reference to the written notice of October 5, he stated that at that time, being about to leave the state to be away for some time, he wished to have a record of the dissolution of the partnership, and hence, though he deemed the verbal dissolution had in July sufficient, it would be safer to have written evidence of it. His statement that the final settlement occurred-in September in pursuance of the verbal notice by him in July, is further corroborated by the fact that Frank did not, so far as the record discloses, make any demand upon him for further payments until sometime in the year 1902, whereas prior to that time demands for payment had been made at comparatively short intervals.
Counsel for plaintiff insists that the fact that defendant gave the written notice on October 5, couched in the terms it was, furnishes conclusive proof that defendant’s claim that a settlement and dissolution was accomplished by a verbal notice in July, is without foundation. It is true that the notice impliedly assumes the existence of the partnership up to the time at which it was given, and thus tends to impeach the defendant’s testimony as to the verbal notice; yet in view of the other evidence heretofore referred to, corroborative of his testimony on this subject, it was the exclusive province of the trial court to determine the credibility of his story and find accordingly. Its determination, after seeing and hearing the witnesses and on the motion for a new trial, must be accepted as final just as would the verdict of a jury had one been called to try the issues.
It has not escaped our notice that the dates referred to by the witnesses do not agree with those alleged either in the complaint or answer. The court seems to have regarded these variances as immaterial. Except so far as they reflect upon the credibility of the witnesses, we think they were immaterial.
Counsel have discussed in their briefs the question whether under the evidence the defendant ought to be charged with any part of the outlay made by Frank for watchmen, insurance, etc. If it be assumed that under the circumstances disclosed he ought to pay his share of this amount, less a credit for his proportion of the rent received by Frank, the balance is in his favor. He knew Frank had been earing for the property and that he had collected the rent. He did not in his answer assert, by way of counterclaim, the right to recover a share of the rent. It may, therefore, be assumed that he was content to allow Frank to reimburse himself out of the rent for the expense of protecting the property. •
The order is affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
Rehearing denied January 31, 1914.
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MR. JUSTICE SANNER
delivered the opinion of the court.
On April 10, 1913, a petition in due form, with signatures apparently sufficient, was presented to the board of county commissioners of Custer county, praying for the creation of a new county, to be called Fallon county. The board thereupon fixed May 1, 1913, at 10 o’clock A. M., as the time for hearing the proof of the petitions and of any opponents thereto, and directed the requisite notice to be given. On May 1, the requisite notice having been given, the board met for the purpose of the hearing, but for cause adjourned the same to May 7. On May 7 the board reconvened and proceeded with the hearing and concluded the same on May 13, 1913, with findings to the effect: That the petition for the creation of Fallon county was sufficient in form, substance, and signatories; that counter-petitions had been filed on May 1, seeking the exclusion of territory from the proposed new county, which were sufficient in form, substance, and signatories to require such exclusion; that, after excluding such territory, the valuation of all the property within the proposed new county was brought below $3,000,000; and thereupon the board denied the petition and declined to call an election.
The entire proceeding was had under the provisions of Chapter 133, Session Laws of 1913, which we shall call the New Counties Act, and it is contended that the board did not give the proper legal effect to the counter-petitions in granting them, because they were not signed by 50 per cent of the qualified electors resident in the territory sought to be excluded. These counter-petitions are the Wibaux petition (Exhibits 1, 5 and 6), and the Ismay petition (Exhibit 3), filed on May 1, the date set for the hearing. The board in affirming their sufficiency proceeded upon the theory that -no counter-petition, pro test or withdrawal made or attempted after May 1 could be considered, and that the term “qualified'electors,” 50 per cent of whom are required for the exclusion of territory under section 2 of the Act, means those electors residing in the territory sought to be excluded whose names appeared on the great register at the date fixed for the hearing. So proceeding, the board declined to entertain certain additional counter-petitions filed after May 1 for the exclusion of the same territory, certain protests against the creation of the new county filed after May 1, certain representations filed after May 1, to the effect that the persons signing the same had withdrawn their names from the counter-petitions for exclusion (Exhibits 1, 3, 5 and 6), and certain offers to prove, without regard to the state of the great register on May 1 that the number of qualified electors, under the Constitution and residing in the territory sought to be excluded, was greater than double the number of those whose signatures remained upon the counter-petitions for exclusion after allowing all withdrawals. And thus it is substantially agreed by all the parties hereto, the following questions are presented :
Is it the intent of section 2 of the New Counties Act that a counter-petition for the exclusion of territory shall be signed by 50 per cent of the persons residing in such territory who possess the constitutional qualifications of electors, or by 50 per cent of the electors residing in such territory who have registered?
Should the board upon the hearing eliminate from the counter-petitions for exclusion the names of those whose withdrawal was filed before the final action of the board but after the date fixed for the hearing ?
May the board upon the hearing entertain a protest against the new county, or a counter-petition for the exclusion of territory, filed before the final action of the board but after the date fixed for the hearing?
1. Counsel for the respondent board, citing Bergevin v. Curtz, 127 Cal. 86, 59 Pac. 312, ingeniously argue that by “qualified electors” 50 per cent of whom must sign a counter- petition for the exclusion of territory is meant those electors who have qualified themselves to vote by registering. They say, in effect, that a distinction is to be observed between “electors,” as persons possessing the constitutional qualifications, and “qualified electors,” as electors who have registered so as to be entitled to vote; and hence the board, in determining whether a counter-petition for exclusion is sufficient as to signatories, has but to resort to the very simple process of consulting the great register as of the date fixed for the hearing. There is support for this construction in Hawkins v. Board of Supervisors of Carroll Co., 50 Miss. 735, and it is attractive as furnishing a solvent for many of the difficulties incident to the administration of this rather complex law. But the construction suggested cannot be approved for several reasons. In the first place, the language employed is, apart from historical considerations, of clear and accepted meaning. Save where otherwise. indicated, the term “qualified elector” means one who possesses the qualifications prescribed by the Constitution as necessary to entitle him to vote (Const., Art. IX, sec. 2), and not simply a registered voter; for one may possess all the constitutional qualifications and still be unable to vote for want of that registration which is also authorized by the Constitution “as necessary to secure the purity of elections.” (White v. Reagan, 25 Ark. 622; Notaries Public, In re House Bill 166, 9 Colo. 628, 21 Pac. 473; Board of Commrs. v. People, 26 Colo. 297, 57 Pac. 1080.) That this is the correct conclusion is manifest upon a general review of the various statutes bearing upon the subject. One example will suffice. By the great register law (Chap. 113, Twelfth Session Laws), the county clerk is required to register all qualified electors. If “qualified electors” means registered electors, the county clerk is. required to register the registered electors. An observation of the various sections of the statute in which the terms “electors” and “qualified electors” are employed will disclose that the use of them is indiscriminate. It is a principle long established that registration is no part of the qualifications of an elector and adds nothing to them; it is merely a
method of ascertaining who the qualified electors are, in order that abuses of the elective franchise may be guarded against. (Mont. Const., Art. IX, sec. 9; Capen v. Foster, 12 Pick. (Mass.) 485, 23 Am. Dec. 632; State v. Butts, 31 Kan. 537, 2 Pac. 618; Wilson v. Bartlett, 7 Idaho, 271, 62 Pac. 416; Hindman v. Boyd, 42 Wash. 17, 84 Pac. 609.) Nor do we see anything in the context or purpose of the Act to warrant the inference that any other meaning was intended. The legislature could have said that a counter-petition to exclude territory should be signed by 50 per cent of the qualified electors thereof whose names appear upon the great register, but it did not say that, and the conclusion must be that it did not mean that, unless by such a conclusion the statute is rendered inoperative or unconstitutional. But it is possible for the board to do what the statute seems to require, viz., ascertain the number of qualified electors in the territory sought to be excluded, whether registered or not, and determine whether 50 per cent of them actually signed the petition for exclusion; and the mere fact that such an inquiry may be difficult, or that a construction of the Act different from its apparent meaning would work to advantage by simplifying the inquiry, affords no reason for doing violence to the language of the Act.
So, too, we may grant that for the board to do what the statute apparently requires it to do may sometimes demand qualities of a high judicial order; still the inquiry is a preliminary one for administrative purposes only. It adjudicates no private right; establishes no precedent; settles no principle. The difference between such an exercise of decisional faculty and that involved in the common everyday affairs of the. board is of degree merely and not of kind. It is of the character termed “quasi judicial” and constitutes no invasion of the constitutional provisions which lodge the judicial power of the state in its courts. (State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804; State ex rel. Jacobson v. Board of Commrs., 47 Mont. 531, 134 Pac. 291.) In State ex rel. Bogy v. Board of County Commrs., 43 Mont. 533, 117 Pac. 1062, we held that the board, in ascertaining whether the original petition for the creation of a new county is signed by one-half the number of electors whose names appeared upon the register for the preceding general election, must subtract from the whole number the names of all persons who since the election have lost their votes by death, removal, or other cause; in other words, the board must determine how many of those whose names appeared in the register for the preceding general election remain electors at the time the petition is filed. We can see no difference in kind between the duties thus imposed and those, apparently imposed by the provision now under review.
There is another consideration which persuades us to the same conclusion. The language in question was brought forward into the present Act from the original Leighton Act (Twelfth Session Laws, Chap. 112). At the time the Leighton Act was passed, the law providing for the great register was not in existence; hence it cannot be said that the Leighton Act contemplated registration in the great register as an- electoral qualification, or that the great register should be the sole, or any, basis upon which to determine the number of qualified electors resident in the territory sought to be excluded. Under the Leighton Act, if it became necessary to know the number of the qualified electors resident in any given locality, it was necessary for the board to resort to one or the other of the following courses: Either take the registration of the last preceding general election alone; or take the registration of the last preceding general election supplemented by proof aliunde of subsequent accessions and losses; or ascertain the fact by any means available. That the first of these courses was not the one in contemplation is clear from the language of the .provision which then, as now, required the board to exclude territory “upon petition of not less than fifty per cent of the qualified electors thereof.” This could refer -only to the time when such petition was filed or presented; and to take the registration of the last preceding general election alone would of necessity exclude all qualified electors who had not registered for that election, as well as those who became electors after that time, and would include those who since that time had ceased to be electors. So that either the second or third course must have been intended by the Leighton Act, and either of them presents, to a greater or less degree, the very embarrassments the avoidance of which is suggested as a ground for construing the same provision of the present law as referring to registered electors alone.
Our own conclusion is that under the Leighton Act, and under the present Act, the provision in question requires the board to determine whether a petition for exclusion, at the time it was filed, contained the genuine signatures of one-half the qualified electors of the territory, regardless of registration, and that for such determination the board may resort to whatever competent evidence may be at hand, including the great register so far as it avails.
2. The counter-petitions for exclusion which were considered and granted, related to two different areas: the "Wibaux territory (Exhibits 1, 5 and 6), and the Ismay territory (Exhibit 3). The board, confining itself to the great register as it appeared on May 1, found that there were 440 qualified electors residing in the Wibaux territory, and 161 in the Ismay territory. The counter-petition for the Wibaux territory, as filed, contained the names of 379 persons, of which number the board struck 92 because they did not appear upon the great register on May 1, thus leaving 287; from this number a further deduction of 35 was made, being the names of persons who had on May 1 filed their formal withdrawal; so that the final number which the board found to have been “fifty per cent of the qualified electors” in the Wibaux territory is 252. The counter-petition for the Ismay territory, as filed, contained the names of 123 persons, of which number the board struck 19 because they did not appear upon the great register on May 1, thus leaving 104; from this number a further deduction of 18 was made, being the names of persons who had filed their formal withdrawal on May 1, so that the final number which the board found to have been “fifty per cent of the qualified electors” in Ismay territory is 86, Upon these figures, if the board had been justified in the several steps above detailed, its findings in favor of the counter-petitions were obviously correct, unless the further withdrawals of 35 names from the Wibaux counter-petition, and 6 names from the Ismay counter-petition, filed after May 1, but before final action upon these counter-petitions, should have been considered and allowed. The authorities on this subject are collated and discussed in admirable notes to State ex rel. Andrews v. Boyden, 15 Ann. Cas. 1122 [21 S. D. 6, 108 N. W. 897], and Sim v. Rosholt, 11 L. R. A. (n. s.) 372 [16 N. D. 77, 112 N. W. 50], and we think the rule well established that, in the absence of legislative expression to the contrary, signers of a petition have an absolute right to withdraw therefrom at any time before final action thereon. (Slingerland v. Norton, 59 Minn. 351, 61 N. W. 322; State v. Geib, 66 Minn. 266, 68 N. W. 1081; Lippincott v. Carpenter, 22 Idaho, 675, 127 Pac. 557; Littell v. Board of Supervisors, 198 Ill. 205, 65 N. E. 78; La Londe v. Board of Supervisors, 80 Wis. 380, 49 N. W. 960; Mack v. Polecat Drainage Dist., 216 Ill. 56, 74 N. E. 691; Hoffman v. Nelson, 1 Neb. (Unof.) 215, 95 N. W. 347; Irwin v. Mayor etc. of Mobile, 57 Ala. 6; Misener v. Wainfleet Tp., 46 U. C. Q. B. 457.) Indeed, the above rule is a necessary inference from the very nature of the right of petition, and of necessity applies, not merely to the petitions themselves, but to the withdrawals, so as to authorize the withdrawal of a withdrawal.
We are not unmindful of the inhibition contained in the New Counties Act (to be later discussed) against the consideration of petitions and protests filed after the date fixed for the hearing; but a withdrawal is neither a petition nor a protest, and we are convinced that the board was clearly in error in refusing to consider the withdrawals in question.
The suggestion is before us that the exclusion of these withdrawals, if error, was not prejudicial to the proponents of the new county. We cannot understand this. It was the duty of the respondent board to give to the counter-petitions for exclusion the legal effect to which they were entitled. (State ex rel. String- fellow v. Board of Commrs., 42 Mont. 62, 111 Pac. 144.) This it could not do without knowing the number of the qualified electors in the affected areas at the time the counter-petitions were filed; and this it’could not know by reference to the great register alone, and no other evidence was received.
The proponents of the new county, challenging the sufficiency of the counter-petitions, offered to prove that there were 473 qualified electors in the Wibaux territory, and 172 in the Ismay territory. These offers, though broad enough as alleged in the petition for the writ of mandate, seem to have been based upon the notion that registration after May 1 is sufficient proof of electoral status on May 1, which is not correct. (State ex rel. Bogy v. Board of Commrs., supra.) But the conclusion reached by the board cannot be aided by any infirmity in the offer of the proponents, because the burden was not on them to establish the number of qualified electors in the area sought to be excluded. That burden was upon the counter-petitioners, and the failure was theirs if, after such evidence as they chose to present, or the board to procure, had been heard, no finding sufficient to support the counter-petitions was possible upon the facts proved. Neither is the matter aided, so far as we can tell, by assuming the number of qualified eleetois in the affected areas.to be as stated in the offer of proof, or by the fact that the board may or may not have erroneously stricken the 92 names from the Wibaux petition, and the 19 from the Ismay petition. Other than the great register, no evidence whatever was taken of the status of the persons whose names appeared upon the counter-petitions; as to 77 of them not even that evidence was before the board. In State ex rel. Arthurs v. Board of County Commrs., supra, we said: “While it does not appear from the face of the counter-petition that it is signed by at least 50 per cent of the qualified electors of the territory sought to be withdrawn, this fact is recited in the affidavit verifying the counter-petition, and this is sufficient prima facie showing of that fact.” But there is nothing before us to indicate the manner in which the counter-petitions are veri fied, if at all. This, of course, does not affect the validity of the counter-petitions as such, since the act does not seem to require that they be verified; but they cannot be taken as prima facie evidence that the signers are qualified electors of the territory affected, or that they constitute 50 per cent of the qualified electors of the territory sought to be withdrawn, without an affidavit to that effect.
It does not follow, from what we have said, that the findings of the board as to the number of qualified electors of the territory sought to be excluded and as to what proportion of such electors had signed the counter-petitions, were wrong, but merely that there was no legal basis for them or any findings. This it must secure in order that the proceedings may go forward to whatever end may be proper.
3. The New Counties Act provides that, upon the filing of a petition for the creation of a new county, the board shall “fix a date to hear proof on the said petitions and any opponents thereto,” and at the time so fixed “shall proceed to hear the petitioners and any opponents, upon the petition or protests filed on or before the time fixed for the hearing; no petition or protests shall be considered unless the same is filed on or before the time fixed for the hearing.” So far as any additional petitions for the creation of the new county or any protests against it are concerned, the above language clearly intends that the case shall be considered as made on the date fixed for the hearing. Nor do we encounter any difficulty in applying the same rule to counter-petitions for exclusion of territory whether they be couched in the language of protest or not. A counter-petition for exclusion is a petition and is so denominated in the Act. The inhibition is against all petitions and protests filed after the date fixed for the hearing, and the mere fact that the board is “upon the final hearing” to exclude territory does not warrant the inference that two hearings are intended, or that counter-petitions for exclusion filed after the date fixed for the hearing are to be considered, or that the sufficiency of those filed upon the date fixed for the hearing ought to be determined as of the date of the hearing. We think the language intends that the entire matter shall be heard and the proofs taken upon the ease as made upon the date fixed for the hearing, save as affected by subsequent withdrawals before final action, and that if, when the evidence is all in, it shall appear that, on or before the date fixed for the hearing, counter-petitions for exclusion were filed which, after allowing all withdrawals, still contain 50 per cent of the qualified electors of the territory involved therein, then the territory affected by such counter-petitions shall be excluded. If we understand the record aright, the respondent board was clearly correct in this portion of its proceedings.
Other questions than those above discussed are suggested in the briefs or have occurred to us in passing. They are not, however, adequately presented by the record, and we refrain from discussing them.
While the relator is entitled to a peremptory writ of mandate, we cannot go to the extent demanded by him. The writ should issue to the respondent board of county commissioners of Custer county, directing them to reconvene within fifteen days after service of the writ and annul the order made by them on May 13, 1913, granting the counter-petitions (Exhibits 1, 3, 5, and 6), and thereupon to ascertain and find the number of the qualified electors resident within the territory sought to be excluded on the date the said counter-petitions were filed; to further ascertain and find how many of the persons who signed said counter-petitions for exclusion were qualified electors of the territory described therein at the time the said counter-petitions were filed, and whether, after allowing all withdrawals therefrom presented before the said order of May 13, the said counter-petitions contain the names of 50 per cent of persons who were qualified electors of such territory at the time the counter-petitions were filed; and if, so proceeding, the board shall find that both counter-petitions contain the genuine signatures of 50 per eent of the persons who were then qualified electors of the territory therein described, to grant the counter-petitions and deny the petition for the creation of the new county; but if, proceed ing as herein directed, ■ the board shall find that either the Wibaux counter-petition (Exhibits 1, 5, and 6) or the Ismay counter-petition (Exhibit 3) does not contain the genuine signatures of 50 per cent of the persons who at the time it was filed were qualified electors of the territory therein described, to deny such counter-petition and (excluding the territory described in the successful counter-petition, if either be successful) take such further proceedings as are required by law to submit the question of the creation of Fallon county to the electors concerned ; and it is so ordered. Writ forthwith.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Action for damages for libel. Upon the trial of this cause, at the instance of the plaintiff, the court gave instruction No. 2 as follows: “You are instructed that the article complained of in this action is libelous in itself, and under the law and the evidence you should find for the plaintiff and against the defendants Butte Miner Company and J. Lawrence Dobell, and award him such damages as in your judgment are just and fair under the circumstances.” Notwithstanding this direction the jury returned a general verdict in favor of the company and Mr. Dobell. Plaintiff moved for a new trial upon three grounds: Insufficiency of the evidence, that the verdict is against law, and error in law occurring at the trial. The motion was sustained and a new trial granted in an order as follows: ‘ ‘ This day, the motion of the plaintiff for a new trial herein is by the court granted, solely and entirely upon the single ground presented to this court that the jury disregarded and refused to obey the instruction of the court to find a verdict for the plaintiff. ’ ’ The appeal is from that order.
Counsel for respondent in their brief suggest that the order should be upheld if it can be done upon any ground of the motion. That rule, however, applies only to a case where the order is a general one, not disclosing the particular ground upon which the court acted, or to a case where counsel have invoked the provisions of the Act for the compensation of errors (sec. 7118, Rev. Codes). In this instance counsel did not except to the order of the trial court which in effect overruled their motion upon every other ground save the one designated in the order. But assuming counsel’s position to be correct, they do not indicate to us any error in the. record claimed by them to be prejudicial to the plaintiff, other than the one upon which the trial court acted, and they cannot expect the members of this court to go through a record of more than 500 pages in a microscopic search for some error which they do not suggest exists there.
The one question before us is: Were the jurors bound by the trial court’s instruction No. 21 In Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, this court held that in all eases, except libel, the jury are bound by the instructions of the court, and a verdict in disregard of them will be set aside as against law. That decision has been affirmed repeatedly, and if in any given instance the exception noted above has been omitted in the statement of the rule, it was mere oversight. There has never been any intention on the part of the court to modify the rule as there expressed; so that in the investigation of the question before us we are not embarrassed by any conflicting statements heretofore made by this court; indeed, the question has never been presented directly before this. In Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 Pac. 215, it was suggested but decision was reserved, as the question was not so directly involved that its determination was necessary to the proper disposition of the appeals in that ease.
Section 10, Article III of the Constitution of Montana, contains this provision: “In all suits and prosecutions for libel, the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.” In its general scope it is not new to the law. Prior to 1792, the law of libel in England was in an unsatisfactory, if not uncertain, state, and for the purpose of setting at rest all questions as to the province of the jury in the trial of a libel case, the Parliament passed what is known as the Fox Libel Act, entitled “An Act to remove Doubts respecting the Functions of Juries in Cases of Libel” (32 Geo. III, Ch. 60). The Act was by its terms made applicable only to criminal libels. It provides that the trial court shall give the jury instructions as in other criminal cases, but that the jurors may determine for themselves the question of libel or no libel. The Act will be found in its entirety in Odgers on Libel and Slander, second edition, page 710.
In Capital etc. Bank v. Henty, L. R. 7 App. Cas. 741, the Judicial Committee of the Privy Council, considering the effect of the Fox Act upon the practice in England, said: “Since Fox’s Act at least, however the law may have been before, the prosecutor or plaintiff must also satisfy a jury that the words are such, and so published, as to convey the libelous imputation. If the defendant can get either the court or the jury to be in his favor, he succeeds. The prosecutor, or plaintiff, cannot succeed unless he gets both the court and the jury to decide for him.”
In Odgers on Libel and Slander, second edition, page 604, the proceeding in the trial of a criminal libel after the enactment of the Fox Act is tersely stated as follows: “The judge, of course, may still direct the jury on any point of law, stating his own opinion thereon, if he thinks fit; but the question of libel or no libel must ultimately be decided by the jury.”
Commenting upon the practiee in England before the passage of the Fox Act, under which the courts reserved to themselves the right to determine the question of libel or no libel, Judge Cooley in his Principles of Constitutional Law, 281, says: “This doctrine was overruled by statute in England, and the jury are now permitted to judge of the whole case, and to decide, not merely upon the responsibility of the publication, but upon the animus with which it was made, and whether within the rules of law the publication is libelous. The instructions of the judge upon the law become under this rule advisory merely, and the jury may disregard them if their judgment is not convinced.”
That these authorities correctly interpret the statutory law of libel in England would seem to be beyond controversy.
Early in the history of this country, like provisions, applicable only to criminal prosecutions for libel, were enacted. Most of them have found expression in state Constitutions. For instance, in Alabama the Constitution (Art. I, sec. 13) provides “that in all indictments for libel the jury shall have the right to determine the law and the facts under the direction of the court”; and a like provision is found in Arkansas, California, Connecticut, Delaware, Kentucky, Maine, Michigan, Mississippi, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas and Wisconsin, and in the statute law of Iowa and Kansas. In every instance, however, it is limited to criminal libels.
Upon the question before us it is idle to cite eases from states which -have no provision of Constitution or law respecting the functions of a jury in the trial of a libel case. In the absence of any such provision, the general rule that the court’s instructions are binding upon the jury would prevail (Gregory v. Atkins, 42 Vt. 237); and this would be the rule also in the trial of civil cases for libel in tbe states enumerated above, where the provision is limited to criminal libels. But a decision from any one of those states in a criminal prosecution is a precedent and valuable, to the extent that the reasoning of the court appeals to us and indicates the general view as to the purpose of a provision of this character.
The Constitution of California provides: “In all criminal prosecutions for libels * * * the jury shall have the right to determine the law and the fact.” In People v. Seeley, 139 Cal. 118, 72 Pac. 834, the court said: “The provision in the Constitution is contained in nearly all the state Constitutions. The occasion for such provision was that in the early rulings of the courts the jury were required to confine their attention to the facts, and the court determined conclusively the libelous or imio-. cent character of the publication. This doctrine was long ago overruled in England, and the jury are now permitted to judge of the whole case, and to decide not only as to the fact of publication, but iipon the animus with which it was made, and whether, within the rules of law, the publication is libelous. The judge has the right to instruct the jury, but his instructions are advisory only. The jury could disregard the instructions, and bring in a verdict even contrary to the evidence. They are the sole judges of the law as well as of the fact. ’ ’
In State v. Heacock, 106 Iowa, 191, 76 N. W. 654, after referring to the section of the Iowa Code conferring upon juries in criminal libel cases the power to determine the law as well as the facts; it is said: “But the legal right of a jury, in a criminal prosecution under the sections quoted, to determine the law which should govern the verdict, even though a decision in conflict with the charge of the court be reached, cannot be doubted. The sections gave to the jury in such cases not merely the power, but the right, to make such a decision, and the jury was not required to follow the charge of the court, which, must be regarded as advisory, and not conclusive as to the duty of the jury.”
In Pennsylvania the constitutional provision applicable .to criminal libels reads: “In all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.” In Pittock v. O’Niell, 63 Pa. 253, 3 Am. Rep. 544, the court, after quoting the provision above, said: “There can be no doubt that both in criminal and civil eases the court may express to the jury their opinion as to whether the publication is libelous. The difference is, that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it, and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases.”
In Kansas it is provided by statute that in all indictments or prosecutions for libel the jury shall have the right to determine the law and the facts; and in State v. Verry, 36 Kan. 416, 13 Pac. 838, it is said: “Of course, the court is not to abdicate its power and duty of instructing the jury upon the law of the ease. The charge should be as full and complete as in cases where the jury are to implicitly take and follow the law laid down by the court. By reason of the learning and experience of the judge who presides, as well as the authority with which he is invested, the jury will doubtless heed and highly regard his opinion, as they should do, and will incline to adopt it rather than a contrary view presented by counsel; but the instructions which .he gives are only advisory, and the jury are not in duty bound to accept and follow his views.”
The foregoing are in harmony with the English cases and indicate very clearly the purpose of the rule and the power intended to be conferred by it upon juries, in criminal prosecutions for libel. In the Constitution of each of the following states, Colorado, Missouri, South Dakota and Wyoming, is a provision similar to that quoted above from our own Constitution, which applies to all libel cases, civil as well as criminal. In Boss v. Ward, 14 S. D. 240, 86 Am. St. Rep. 746, 85 N. W. 182, the trial court had directed a verdict for plaintiff, leaving to the jury only the question of the amount of damages. After referring to the authority conferred upon the jury in the trial of a libel case, either civil or criminal, the court said: ‘ ‘ The fact that the jury shall have the right to determine the fact and the law under the direction of the court seems to have been overlooked by the learned circuit court. The court, it is true, may direct the jury by stating to them what constitutes a privileged communication as laid down in the law, but whether or not the communication is privileged is a matter to be determined by the jury. The provision of the South Dakota Constitution is self-executing. To the lawyer familiar' with the early decisions of the English courts upon the subject of libel and slander, the importance of this provision will be apparent. In our view of the ease, therefore, the court has no right to take from the jury the question of whether or not the communication in this case was privileged.”
Under a constitutional provision identical with our own, the Missouri courts have held consistently that the question of libel or no libel is for the jury; that it is the province of the trial court to advise the jury, but that the jury are not bound by the instructions so far as the question of libel or no libel is concerned, and that a general verdict for a defendant concludes the case. (Duncan v. Williams, 107 Mo. App. 539, 81 S. W. 1175; Sands v. Marquardt, 113 Mo. App. 490, 87 S. W. 1011; Arnold v. Jewett, 125 Mo. 241, 28 S. W. 614; Heller v. Pulitzer Pub. Co., 153 Mo. 205, 54 S. W. 457; Ukman v. Daily Record Co., 189 Mo. 378, 88 S. W. 60.)
The question has not been before the supreme court of Colorado directly, so far as our investigation discloses. In Hazy v. Woitke, 23 Colo. 556, 48 Pac. 1048, an order of the trial court granting a nonsuit was reversed and some observations, by way of dictum, upon the power of the court in libel cases, are made, but nothing is said which is out of harmony with the declarations of any of the courts referred to above.
The question does not appear to have been considered by the "Wyoming court; and we have not found any authority contrary to the views expressed above from any state having a constitu tional or statutory provision conferring upon juries in libel cases the power to determine the law as well as the facts. The authorities cited are entitled to respectful consideration from us. But even if there were not any authorities upon the subject, we would be compelled to the same conclusion as they express; for any other decision of the question would render the language of our Constitution meaningless. It was unnecessary for the framers of our Constitution to make any declaration upon the subject at all, if it was intended that the court’s instructions as to the libelous character of a publication should be binding upon the jury, for that would be the rule in the absence of any declaration. The history of these peculiar provisions, which make the trial of a libel case sui generis, discloses beyond all controversy that the purpose of their enactment has always been to confer upon juries a power not otherwise available to them, and that to the extent of determining whether a particular publication is or is not libelous, the court’s instructions shall be advisory only and may be disregarded by the jury. Except as to the question of libel or no libel, the authority of the trial court has not been curtailed and in every other respect the trial of a libel ease proceeds as any other.
It follows that the jury in this instance were not bound by instruction No. 2; that a decision contrary to that instruction is not a decision contrary to law, but under the Constitution is very clearly a verdict according to law as determined by the jury. The refusal of the jury to follow the advice of the court in this instance was not a ground for granting a new trial. In the absence of any prejudicial" errors occurring at the trial, the general verdict in favor of defendants should have concluded this case.
The order granting a new trial is reversed.
Reversed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Early in the morning of October 25, 1911, a building occupied as a lodging-house, in the city of Missoula, was destroyed by fire. On November 29 the defendant was, after examination by a justice of the peace, held under bail to answer in the district court on the charge of arson for setting fire to the building. The justice transmitted the transcript of the testimony heard by him and all the papers in connection with the case to the clerk of the district court, and they were filed by the latter on December 5. On January 5, 1912, the county attorney filed an information charging the defendant with the crime of arson. Leave of court for this purpose was not asked nor granted. Thereafter the defendant appeared with his counsel and, upon arraignment, waived the reading of the information and at once entered a plea of not guilty. A trial resulted in a verdict of guilty of arson in the first degree. From the judgment entered thereon and an order denying his motion for a new trial the defendant has appealed. Counsel contends that the judgment should be reversed, for that the district court was without jurisdiction to try the defendant upon the information; that the verdict is contrary to the evidence; and that the court committed error in submitting instructions to the jury.
1. The jurisdiction of the court is challenged on the ground that the information was filed without leave of court more than thirty days after the testimony and papers in the case had been filed with the clerk. Under the statute (Rev. Codes, sec. 9105), when the defendant has been examined and committed or held to bail, the county attorney must file an information within thirty days after the complaint, warrant and testimony have been delivered to the proper district court, or, when there has been no examination, within thirty days after leave granted by the court. He is subject to punishment for contempt and also to prosecution for neglect of duty if he fails to do so, unless he is excused by the court as provided in section 9107. Under section 9193 the court must, at the time of arraignment, on motion set the information aside if leave to file it has not been granted by the court or the defendant has not been committed or held to bail by a magistrate. In order to invoke the power of the court in this behalf, however, the motion must be in writing, subscribed by the defendant or his counsel, and must specify the particular ground of objection. Furthermore, the motion must be made before demurrer or plea, or the objection is waived. (Sec. 9194.) The requirements found in sections 9105, 9107 and 9193 are mandatory. The purpose of them is to spur the county attorney to prompt attention to his duty and to compel him to exercise the extensive powers of his office, so far as they relate to the prosecution of criminal offenses, not arbitrarily but subject to the control of the court and in subordination to established rules. Nevertheless, the observance or nonobservance by him of the rules thus prescribed does not affect the jurisdiction of the court nor the substantial merits of the particular case, but has to do merely with the regularity of previous proceedings. The defendant may insist that they be observed, but he need not do so. If he does not, the court, is authorized and required by section 9194 to proceed upon the assumption that all antecedent requirements have been observed. This section is not less mandatory than are the others, and if the defendant does not invoke it at the proper time and in the way pointed out by it, he will thereafter not be heard to complain. (State v. Smith, 12 Mont. 378, 30 Pac. 679; State v. McCaffery, 16 Mont. 33, 40 Pac. 63; State ex rel. Nolan v. Brantly, 20 Mont. 173, 50 Pac. 410; State v. Schnepel, 23 Mont. 523, 59 Pac. 927; State v. Peterson, 24 Mont. 81, 60 Pac. 809; State v. Lagoni, 30 Mont. 472, 76 Pac. 1044.) Counsel for the defendant sought to raise the question of jurisdiction by oral objection to the introduction of evidence at the opening of the trial. The objection was properly overruled.
2. The evidence, the narrative transcript of which covers about 800 typewritten pages, is entirely circumstantial in character. It would extend this opinion beyond any reasonable limits to undertake a statement and analysis even of those portions of it which point most strongly to defendant’s guilt. It is sufficient to say that while there is much conflict in the statements of the different witnesses touching many of the important incriminating circumstances, presuming, as we must, that these conflicts were resolved by the jury in favor of the state’s witnesses, and accepting these statements as true, we think the evidence as a whole meets the requirement of the rule that when a conviction is sought upon circumstantial evidence, the circumstances proved must be consistent with each other and with the hypothesis of defendant’s guilt, and at the same time inconsistent with any rational hypothesis other than that of his guilt. (State v. Suitor, 43 Mont. 31, Ann. Cas. 1912C, 230, 114 Pac. 112; State v. Allen, 34 Mont. 403, 87 Pac. 177; 12 Cyc. 488.) On the theory that the incriminating circumstances which the evidence tends to show all in fact existed as stated by the witnesses, the jury could not well have reached any other conclusion than that the defendant, either in person or through the agency of another, set fire to the building as alleged in the information.
3. Contention is made that prejudicial error was committed by the court in submitting to the jury instructions 3 and 4, and in refusing to submit offered instructions 12, 13 and 16. Instructions 3 and 4 are, respectively, copies of sections 8119 and 9167 of the Revised Codes. The former declares principals all persons concerned in the commission of a crime, whether they directly commit the act constituting it or aid and abet in its commission, or, not being present, have advised and encouraged its commission. The latter abolishes the distinction between an accessory before the fact and a principal, and between prin eipals in the first and second degree, and declares that all persons concerned in the commission of a felony by aiding and abetting, though not present, must be prosecuted as principals. By offered instructions 12, 13 and 16, the court was requested to direct the jury that they could not convict the defendant unless they should be satisfied beyond a reasonable doubt that he was personally present and set the fire that destroyed the building. The criticism made of instructions 3 and 4 is that there is no evidence to which they could apply, and hence that, though they state correct principles of law, they must have confused and misled the jury to the prejudice of the defendant. The evidence tending to show that the defendant procured the fire to be set by some other person is not very strong or convincing; nevertheless there was evidence tending to show that this may have been the fact. Hence the court was justified in submitting these instructions. Such being the condition of the evidence, it is clear also that instructions 12, 13 and 16 were properly refused. ”
The judgment and order are affirmed.
'Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiffs are, respectively, the surviving children and widow of August Maronen, deceased, and prosecute this action for damages on account of the death of the father and husband by the alleged wrongful act of the defendant. The complaint recites the relationship of the plaintiffs to the deceased and al leges that on September 7, 1911, August Maronen- was an employee of the defendant company engaged in underground mining; that the company was carrying on mining operations through the Mollie Murphy shaft, a vertical shaft, more than 300 feet deep; that while in the discharge of his duties as such employee, and while at the 1,200-foot level in the shaft, he entered one of the defendant’s mining cages for the purpose of being hoisted to the surface; that the defendant hoisted him from the 1,200-foot level to about the 1,000-foot level in the shaft when Maronen fell from the cage, receiving injuries from which he died. The gravamen of the charge is that the defendant hoisted Maronen without having closed the cage doors, and because of this fact alone the accident occurred. The act or omission is charged to have been wrongful and unlawful.
The answer admits the employment and the operations of the defendant company through the Mollie Murphy shaft; that while being hoisted through that shaft and at about the 1,000-foot level, and while the cage doors were not closed, Maronen fell from the cage, receiving the injuries from which he died, and that if the doors had been closed he would not have fallen from the cage. All other allegations of the complaint are denied; and in addition the defendant pleaded assumption of risk, negligence of fellow-servants, and that the decedent’s death was due to his own fault, neglect, and disobedience of orders. These affirmative allegations were traversed by reply, and the cause, being at issue, was tried to the court without a jury and resulted in a judgment for defendant, from which judgment and an order denying them a new trial the plaintiffs prosecute these appeals.
The complaint charges the defendant with violating section 8536, Revised Codes, which makes it unlawful for any person or corporation to carry on mining operations through a vertical shaft more than 300 feet deep, unless the shaft is equipped with a safety cage with steel doors, and said doors “must be closed when lowering or hoisting the men,” except that when sinking only the doors need not be used. For a violation of any of the provisions of the section a penalty is prescribed.
Practically all of appellants’ preliminary hypotheses may be conceded at once, in substance if not in the form in which they are expressed, vis.: That section 8536 is a penal statute and its violation is a crime; that section 6486, Revised Codes, gives to these plaintiffs a right of action against this defendant, provided the defendant’s wrongful act or neglect was a proximate cause of August Maronen’s death; that the fact that a penalty is attached to a violation of section 8536 does not render the defendant immune from civil liability; and that the duty to close the cage doors when men are being lowered or hoisted is an absolute one, in the sense that the employer will not be heard to say that by the exercise of ordinary care he cannot comply with the requirement. The foregoing questions aside, and we are brought to a consideration of the character-of this action and, as an incident thereof, the defenses, if any, which are available.
There is not any contention made that the defendant company had not fully complied with the law in providing and properly equipping the cage in use. The only charge of wrongdoing is in failing to close the cage doors before attempting to hoist employees.
That section 8536 does not create any right of action or destroy any defense available at the time of its enactment are questions set at rest by the former decision of this court. (Osterholm v. Boston & Mont. Con. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499.) In the absence of some statute creating this right of action, these plaintiffs would be remediless, for it was the rule at common law that, for the death of one person caused by the wrongful act of another, the law furnished no remedy by civil action (Dillon v. Great Northern R. Co., 38 Mont. 485, 100 Pac. 960); and it was to supply this lapse that Lord .Campbell’s Act was adopted in England, and statutes of the same general character have been enacted in this country. Our own provision is found in section 6486, above, which declares that when the death of one person, not a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. It is by virtue of that section that these plaintiffs are now in court; and the character of this action and the defenses available are to be determined from a construction of that section. The statute does not deal with questions of pleading, and the facts necessary to be stated in any given instance depend upon the character of the right asserted. In Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 130 Pac. 441, we gave to this provision of the law our most earnest consideration. Its history was traced and its purpose determined. There was involved directly the inquiry: “Do the words of the statute, ‘wrongful act or neglect of another,’ imply actionable wrong or negligence toward the deceased or toward the surviving wife and children ? ’ ’ After a thorough examination of the subject, in the light of the history of the provision and its amplification by other tribunals, Chief Justice Brantly, speaking for the court, said: “The meaning of the expression ‘wrongful act or neglect of another’ thus became established and clearly limited to those cases only wherein the death is wrongful as against the deceased and to preclude recovery when death was due to the decedent’s own fault.” Referring to the legislative history and the former decisions of this court which recognize the rule that under this statute recovery can be had only in a case in which the deceased was himself without fault, the Chief Justice proceeded: “The interpretation thus given the statute by the legislature, and impliedly by these decisions of this court, has become so firmly established as the rule of decision in this jurisdiction that we do not feel justified in departing from it. To sustain the plaintiffs’ contention would be to adopt an interpretation which the legislature never intended that the statute should have and thus destroy defenses of which defendant cannot be deprived, except by Act of the legislature. If a change should be wrought, it is the office of that body to make it, and not of this court”-—and concluded by quoting from the opinion of the supreme court of the United States in North ern Pacific R. Co. v. Adams, 192 U. S. 440, 48 L. Ed. 513, 24 Sup. Ct. Rep. 408, a carrier and passenger case -where a like statute was considered, as follows: “The two terms, therefore, ‘wrongful act’ and ‘neglect,’ imply alike the omission of some duty, and that duty must, as stated, be a duty owing to the decedent. It cannot be that, if the death was caused by a rightful act or an unintentional act with no omission of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and they can recover only in case he could have recovered damages had he not been killed but only injured. The company is not under two different measures of obligation, one to the passenger and another to his heirs. If it discharges its full obligation to the passenger, his heirs have no right to compel it to pay damages.”
The rule of law is, then, settled in this state that, while the right of action given in section 6486 to the heirs or personal representatives is independent of that which the deceased would have had if he had survived his injury, yet it is of the same character and depends upon the same facts; and the inquiry whether a given state of facts constitutes a cause of action in favor of the surviving widow and children depends upon the answer to the inquiry: Would the same facts, if stated by the injured man, constitute a cause of action in his behalf? That the allegations disclosing a breach of a statutory duty charge legal negligence, and that this complaint states a cause of action for damages for negligence, may be conceded even though the word “negligent” or “negligently” is not used.
But the immediate question before us is not whether the complaint states a cause of action, but whether the facts alleged constitute a cause of action, independently of the element of negligence. We might answer this interrogatory by reference to the foregoing decisions of our own court and conclude this discussion upon the evidence but for the earnestness with which counsel for appellants contend that, because the act or omission charged in this instance amounts to a crime, the defendant is limited to those defenses only which would be available to it in a criminal action in which it was defendant, prosecuted by the state upon indictment or information charging the unlawful killing of August Maronen. The pleas available in a criminal action are enumerated in section 9209, Revised Codes: “There are four kinds of pleas to an indictment or information. A pleaof:(l) Guilty. (2) Not guilty. (3) A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty. (4) Once in jeopardy”—but these are declared to be applicable to a charge presented by indictment or information and they are not applicable to civil actions. There is not any more reason for applying the provisions of section 9209, above, to this action than there is for invoking the other rules of criminal procedure. Counsel for appellants would scarcely admit that in all actions of this character the county attorney must appear for the plaintiff; that the action must be initiated by filing a complaint, indictment, or information; that defendant should be brought into court by warrant; that the proceeding might be commenced in a justice of the peace court and defendant be entitled to a preliminary examination; that the pleas must be made orally; that the defendant should be entitled to twice the number of peremptory challenges allowed the plaintiffs; that plaintiffs should be compelled to sustain the burden of proving the charge made by evidence beyond a reasonable doubt; that a jury trial could not be waived; and that a unanimous verdict only could be returned—and yet the reason for invoking one provision of the Code of Criminal Procedure is just as cogfent as that in favor of any other one. Counsel err in assuming that the ordinary defenses available in negligence actions never were applicable to a charge which amounts to a crime when made in a civil action. Aside from the few fundamental principles enumerated in the Constitution, we have but two sources to which to resort in order to determine rules of substantive law or law of procedure: The Codes and the common law. “Law is a solemn expression of the will of the supreme power of the state.” (Rev. Codes, sec. 3550.) “The will of the supreme power is expressed: (1) By the Constitution. (2) By statutes.” (Sec. 3551.) “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this state, or of the Codes, is the rule of decision in all the courts of this state.” (Sec. 3552.) There is not any rule of the Constitution or provision of the Codes which lends support to the view for which appellants contend, and we are equally certain that such a rule was not invoked at common law.
While the common-law forms of action have been abolished in this state, the principles which underlie them have not been changed, and a reference to the forms as well as the principles not infrequently aids in determining the character of a right or a remedy. The Lord High Chancellor of Great Britain in his recent address to the American Bar Association, in referring to the common law with special reference to its growth and development, said: “Its paradox is that in its beginning the forms of action came before the substance. It is in the history of English remedies that we have to study the growth of rights.” If August Maronen had not been killed but only injured and had brought his action for damages against this defendant charging the violation of this same statute as a proximate cause of his injury, would his complaint state a cause of action independently of the element of negligence? At common law the injured party had his remedy in trespass or by an action on the ease, dependent upon the character of the act which caused the injury, but it was immaterial whether the wrongful act amounted to a crime or only a tort. If the injury was the immediate and direct result of the wrongful act, the remedy was sought in trespass; but if the injury was, as to the act complained of, consequential or arose from nonfeasance, then the remedy was by an action on the case. To illustrate: (1) If the defendant had struck Maronen with the cage or had thrown him from it, his form of action would have been trespass, and, if the injury resulted from the defendant’s negligence, the action would not have differed from any other negligence action so far as it affected the defenses available; but, if the injury resulted from defendant’s intentional act, then a plea of justification alone would have been available. (2) But for the injury arising from his fall from the cage which resulted from the omission to close the cage doors, his action would have been on the case, and negligence must have been alleged. (Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. Rep. 375, 13 Ann. Cas. 263, 14 L. R. A. (n. s.) 628, 92 Pac. 962.) So far as this action is concerned, these observations upon the rules of pleading at common law are somewhat more, speculative than practical. They answer appellants’ contention and aid in determining the line of demarcation between the class of personal injury actions in which negligence is not a necessary element and the class in which the allegation of negligence is necessary.
This complaint states a cause of action for damages caused by negligence, but it does not state a cause of action upon any other theory; and,.having set forth facts which disclose legal negligence on the part of the defendant, it was permissible for it to interpose any of the ordinary defenses applicable in negligence cases. Possibly there may be found authorities which dispute this conclusion. The Illinois court has reached a different result, but upon a different penal statute. Aside from the Illinois cases, the decisions cited by counsel for appellants are not in conflict with our conclusion. As we view them, they are not in point in fact or in principle. We do not think there is any analogy between this case and an action for damages caused by dueling, assault and battery, or an abortion. But, whatever may be said of the authorities elsewhere, the decision in Osterholm v. Boston & Mont. Con. C. & S. Min. Co., above, is decisive of the question in this state. In our opinion, however, the determination of this controversy is to be found in the merits as disclosed by the evidence, and it is of little consequence by what name the successful defense is designated. The trial court heard the witnesses, observed their demeanor while upon the witness-stand, and every presumption will now be indulged in favor of the correctness of its conclusions. If-there is substantial evidence to support any of defendant’s special defenses or from which a fair inference to that effect can be drawn, then this court will not interfere.
On September 7, 1911, the deceased, with Powers, Conroy, Ryan, and Updegraff, all miners employed by the defendant company, were directed to cement up a leak in a bulkhead in a drift on the 1,200-foot level from the Mollie Murphy shaft where gas was escaping. ' In the course of their operations Updegraff became affected by the gas, and Ryan, Maronen, and Conroy took him upon the cage, and without closing the doors the signal to hoist was given, and when at the 1,000-foot level or thereabouts Maronen fell from the cage and was killed. The evidence given upon the trial is very meager, and there are not any disputed questions of fact. Plaintiffs called Mrs. Maronen, who testified to the relationship existing between them and the deceased, to the habits and earning capacity of the deceased and his contributions to these plaintiffs. Then, upon an admission by the defendant as to the expectancy in life of one of Maronen’s age as shown by the standard tables of mortality and as to the cost of an annuity, plaintiffs rested their case. The defendant called the mine foreman, the shift-boss, and two of the men who were with Maronen when he fell from the cage. At the close of their testimony the cause was submitted without rebuttal. To set forth even a brief abstract of the testimony of defendant’s witnesses would no't serve any purpose, useful or otherwise. We have studied it carefully, and our conclusion is that it tends to prove the following facts: That at the time of this accident, and for some considerable time prior thereto, there were but two men regularly employed on each shift in the Mollie Murphy shaft; and for this reason there were not any station-tenders, but the men on shift or working in the shaft when they were being hoisted or lowered were required to open and close the cage doors themselves; that as to Maronen this duty was imposed by specific instructions given him individually; that the rule required the first man upon the cage to close the door on his side of the cage; that, at the time these men entered the cage for the purpose of bringing Updegraff to the surface, Maronen was the first man to enter the cage; that he did not close the door next to where he stood; and that it was through that door that he fell. The cause of his fall is not disclosed. There is a bare suggestion that after the cage started he became affected by the gas. Just before starting, Ryan asked Maronen and Conroy how they felt and received a response from each that he felt fine. With the evidence from which these fact conclusions are drawn before it, the trial court made a general finding in favor of the defendant which is equivalent to a finding in defendant’s favor upon every issue necessary to support the judgment. (City of Butte v. Mikosowitz, 39 Mont. 350, 102 Pac. 593; Hansen v. Larsen, 44 Mont. 350, 120 Pac. 229.) There is some evidence that the rule requiring the miners to close the cage doors was habitually violated by Conroy and possibly by others, but there is not any evidence that such violations were countenanced by the defendant; on the contrary, it is disclosed that, when some miners in its employ were detected violating the rule a short time before this accident occurred, they were’ immediately discharged. Neither do we attach importance to the fact that, at the precise time of this accident, Maronen’s place of regular employment was not in the Mollie Murphy shaft. He had been working there but a short time before, was familiar with the conditions, and understood the duty which was imposed upon him.
When this safety cage statute in its present form was enacted, the legislature understood that a corporation is an intangible entity, and that the duty to close the cage doors must of necessity be imposed upon some servant of the corporation. If a corporation employed a man whose sole duty it was to open and close the cage doors at a particular station, and such station-tender neglected his duty when he himself was being lowered or hoisted, with the result that he was killed or injured, neither his heirs nor personal representatives in the one instance, nor he himself in the other, could recover, for the very obvious reason that he would be responsible for the result—would be the sole author of his misfortune. We are not called upon in this instance to determine tó what extent a corporation operating under this statute may impose upon its workingmen generally the duty to close the cage doors. We are not required to complicate the question before us in order to make its solution more difficult.
At the time this injury occurred there were only two men regularly employed on each shift on the work reached through the Mollie Murphy shaft, and the question for solution is: Was it the duty of the defendant corporation, under those circumstances, to employ station-tenders (a man for each station, where the two miners or either of them might be sent to work), whose sole duty it would be to open and close the cage doors, or in this particular instance, when five men were lowered 'to perform a particular piece of work out of the ordinary, was it incumbent upon the employer to hire a sixth man to go along for the special purpose of closing the cage doors? This statute does not impose such a duty in terms. Its provisions are to be given a reasonable construction, in view of the evils sought to be remedied by its enactment. Notwithstanding its penal character, it is a police regulation designed to protect the lives of the men engaged in the extrahazardous occupation of deep underground mining. But it was not intended to lay an embargo upon the mining industry, and consequently it does not contemplate that it shall he necessary that two or three men be employed to wait upon one man who is actively engaged in mining. It does impose a duty and contemplates that in its discharge someone shall be employed to act for the corporation in performing the manual labor of opening and closing the cage doors. If the man so engaged is capable, understands the method to be pursued in fulfilling the obligation of his employment, and is not encumbered with other duties which tend to interfere with the discharge of the mechanical operation of opening and closing the doors, it would seem that the corporation discharged its duty in the first instance, though it might thereafter be liable to someone else injured by reason of the failure of this agent or servant to discharge the duty assigned him; in other words, so long as the other duties imposed upon the man who is to open and close the cage doors do not interfere with his work of opening and closing the doors, the statute does not expressly or impliedly prohibit the imposition of such dual duties or make the employment of a man, whose sole duty it shall be to open and close the doors, imperative. The evidence tends to show that Maronen was an experienced miner and a capable man; that in each door opening of the cage used in the Mollie Murphy shaft were'double doors which closed inwardly and locked or fastened by a simple device; that each door weighed less than fifteen pounds and opened and closed easily; that the doors upon this cage were in good working condition, and that it required no technical knowledge or experience, and very little labor, to close them; that, so far as the defendant was concerned, the work which Maronen was required to do upon the occasion when he was injured had no relation whatever to, and could not interfere with, the discharge of his duty to close the cage door; that he had ample opportunity to close the door before the cage was hoisted; that it was his duty to do so; that he failed in the discharge of that duty and paid the penalty with his life. The evidence does not show or tend to show that he was so engrossed with his attention to Updegraff that he could not close the door or that in the excitement he forgot to do so. Conroy likewise failed to close the door on his side of the cage and explains his remissness by saying: “It was dangerous, but we took the chance, I guess.”
Our conclusion is that the trial court was justified in finding that Maronen was to all intents and purposes a station-tender in the sense that it was his duty to close the door when he entered the cage to be hoisted, and that his death resulted from his failure to discharge a duty which could be and was rightfully imposed upon him; and, because he could not have succeeded upon these facts in an action if he had been injured only, neither his heirs nor personal representatives can succeed in this one.
The judgment and order denying plaintiffs a new trial are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
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PER CURIAM.
It is ordered that the appeal in the above-entitled cause be, and the same is hereby dismissed, in accordance with stipulation of counsel on file herein.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
A jury having returned a verdict for damages against the defendants for a personal injury alleged to have been inflicted upon plaintiff through their negligence, they have appealed from the judgment entered thereon and an order denying them a new trial. The accident occurred at Huntley, a small village in Yellowstone county, at the junction of the Chicago, Burlington & Quincy Railway with that of the defendant railway company. Both roads extend east and west through the village, the companies making use of the same depot or station, the track of the defendant company, with platform for the receipt of freight and the accommodation of passengers, being on the side toward the north, that of the other company on the side toward the south. Immediately north of the defendant company’s track is a driveway of ordinary width, and persons going to or coming from the station on that side are compelled to cross the driveway and the track. For the accommodation of those who approach the station on foot the defendant company has provided a gravel or cinder path extending from the principal street of the village to the north line of the railway. From the end of the path the waiting-room, which is at the west end of the station building, is reached by going directly south to the east end of the platform and thence west, or by going southwest to the platform to a point in front of the door opening into the waiting-room. These lines of travel are used indifferently. The evidence does not disclose how those who come and go by 'conveyances reach the station, but there is some basis for the inference that they must alight at the driveway and gain the station by crossing the track. So far as the record shows, access to it can be gained only in the way stated. At the time of the accident the plaintiff was temporarily in the village of Huntley on business and was stopping at a hotel north of the station. On the evening before it occurred he was- expecting his mother to arrive on a train designated as No. 4, due from the west at about 8 o ’clock. He ascertained, however, that No. 4, being several hours late, would not arrive until -after midnight. He was also expecting to meet a business acquaintance who he claimed was to arrive on a train designated as No. 3, from the east, which was due at 1:18 o’clock. Accordingly, he went to the station some fifteen or twenty minutes after midnight. Having found that No. 4 would not arrive until some two and a half hours later, 'he remained awaiting the arrival of No. 3. As this train approached he stood on the east end of the platform observing it. When it was yet at a distance of eight or nine hundred feet from the station someone dealt him from behind a heavy blow upon the head, from which he staggered and fell from the platform upon the rails, being for the moment “partially stunned.” While he was in the act of crawling off the track toward the north, the train came upon him inflicting such injuries that he thereby suffered the loss of both feet. To this narrative may be added the statement of the plaintiff as to his situation at the moment he was caught by the train: That in his effort to escape he had gotten clear of the rail except his right foot, and that as'he was drawing it over it was caught by a piece of wire lying near the rail, which caused a delay of a few seconds—a sufficient time to allow the wheels to catch him. The left foot, he stated, must have been drawn under the wheels as he was rolled over by the impact of the wheels with his right foot. That this account is probably correct finds support in the fact that on the following morning witnesses who went to look over the ground found a wire lying near the north rail along the side of the path leading from the platform where the plaintiff was picked np after the train had passed, and also by the fact that his right foot was crushed at the ankle, whereas his left foot was crushed at the instep.
The complaint alleges that the defendant company was guilty of negligence in permitting the wire to remain where it was, inasmuch as it must have known that the wire was there and that it was a source of danger to persons going to and from the station. But during the trial the issues in this behalf were eliminated from the ease. The specific charge upon which recovery was had is the following: ‘ ‘ That the said defendant Mc-Donough, so acting as engineer as aforesaid, in the exercise of reasonable care and diligence, could have seen plaintiff so upon said track, as aforesaid, and plaintiff alleges, on information and belief, that the said McDonough did see him on said track as aforesaid, in seasonable time to have stopped said locomotive and train so as to avoid striking plaintiff, but the defendant company, acting through the said McDonough as engineer, and the said defendant McDonough, wholly failed and neglected to stop said locomotive engine and train, and carelessly and negligently drove and ran said locomotive engine and train upon-and over said plaintiff, so on said track as aforesaid, thereby crushing both of his feet to such an extent that it became necessary to amputate the same, which was thereafter done.”
Counsel for defendants open the argument in their brief with the following statement: “The question is presented on this appeal whether a liability for damages exists under the doctrine of ‘last clear chance,’ where a person is injured upon a railroad track, at a place where he has no right to be and where his presence could not be reasonably expected or anticipated, because of the failure of the engineer in charge of the train to discover such person’s position and peril upon the traek in time sufficient to stop the train and avoid injuring him. ’ ’ Assuming the position that plaintiff was a trespasser upon the defendant company’s track, and that the evidence fails to show that the en gineer actually discovered his presence there, they insist that the trial court should have directed a verdict for the defendants, because the duty to adopt any precaution to avoid injuring the plaintiff did not arise. They thus rely upon the rule of the last clear chance. Counsel for plaintiff insist that this rule has no application to the case, but that the plaintiff, having gone to the station to meet his mother and having remained there to meet his friend who was to arrive on train No. 3, he was there rightfully because there upon the invitation of the defendant company, and hence that under the rule that it is the duty of a railway company to anticipate the presence of persons about its stations when a train is arriving, including those who go to meet an incoming passenger as well as those who accompany a departing one, and to exercise ordinary care for their safety, the engineer was under obligation to keep a constant lookout to discover plaintiff’s position and thus to avoid injuring him. They also argue that the evidence shows conclusively that the engineer must actually have discovered the peril of plaintiff in time to stop the train, and hence that the defendants are liable even under the rule invoked by counsel. The court was of the opinion that the rule of the last clear chance is applicable, as is shown by the following instruction, which discloses the theory of the charge submitted: “You are instructed that in this case if the engineer discovered, or in the exercise of reasonable diligence could have discovered, the position of the plaintiff on the track, if you find that he was upon the track in the manner in which he says he was, and it was apparent to the engineer that the plaintiff could not escape from the track so as to avoid being run over, the duty became imperative upon him to use all reasonable care to avoid running over the plaintiff or injuring him, and if he did not do so and the plaintiff was injured, then the defendants under such circumstances would be liable for the injuries inflicted. ’ ’ Counsel find no fault with the statement of the rule as embodied in the instruction. It -may be remarked, however, that the rule is limited in its application to those cases only in which the plaintiff, or the person injured or his property, has by his own act been exposed to injury at the hands of the defendant, and the defendant, after discovering the situation of the person or property in time, has failed to use ordinary care to avert the injury. (1 Thompson on Negligence, sec. 228.) A case calling for its application embodies three elements, vis.: (1) The exposed condition brought about by the negligence of plaintiff or the person injured; (2) the actual discovery by the defendant of the.perilous situation of the person or property, in time tt avert injury; and (3) the failure of defendant thereafter to use ordinary care to avert the injury. All of these elements must concur, else the rule has no application, and liability must be predicated upon the failure of defendant to discharge toward the person injured or his property, some other duty imposed by law under the facts of the particular case as they are made to appear. The duty imposed by it is, not to use ordinary care to discover the peril and also to avert the threatened injury, but to avert the injury after the perilous situation is actually discovered. It is nothing more than a qualification, by way of exception, to the general rule that-negligence on the part of plaintiff which proximately contributes to his injury will bar his recovery. So the rule is understood and applied by the courts generally. (Davies v. Mann, 10 Mees. & W. 546; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 36 L. Ed. 485, 12 Sup. Ct. Rep. 679; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. Ed. 270, 11 Sup. Ct. Rep. 653; Austin v. New Jersey Steamboat Co., 43 N. Y. 75, 3 Am. Rep. 663; Northern Central Ry. Co. v. State, 29 Md. 420, 96 Am. Dec. 545; Vicksburg etc. Ry. Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552; Cullen v. Baltimore etc. R. Co., 8 App. D. C. 69; Western Maryland R. Co. v. Kehoe, 83 Md. 434, 35 Atl. 90; Omaha St. Ry. Co. v. Cameron, 43 Neb. 297, 61 N. W. 606; see, also, 1 Thompson on Negligence, sec. 238; 2 Id., sec. 1735.) This court recognized and applied the rule in Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 Pac. 831, Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373, and Neary v. Northern Pacific R. Co., 37 Mont. 461, 19 L. R. A. (n. s.) 446, 97 Pac. 944. In the course of the argument in the opinion in the last case, in stating the qualification of the general rule, it was said: “The general rule that one’s own negligence in such case precludes recovery is subject to the qualification that, where the defendant has discovered, or should have discovered, the peril of the plaintiff’s or deceased’s position, and it is apparent that he cannot escape therefrom or for any reason does not make an effort to do so, the duty becomes imperative for the defendant to use all reasonable care to avoid the injury; and if this is not done, he becomes liable, notwithstanding the negligence of the injured party.” The expression “or should have' discovered,” as used in this passage, seems to have been understood by some members of the profession in this state to imply an obligation on the part of the defendant to maintain a lookout at all times, to discover anyone who may be in a position of peril, as well as to exercise due care thereafter to avoid injuring him, and that by an omission of this duty liability would arise for any injury caused thereby. The use of the expression was unfortunate and perhaps justifies the doubt entertained as to the application this court would make thereafter of the qualification of the general rule; but a careful reading of the opinion does not, we think, justify any other conclusion than that the statement was intended to include those cases in which the actual discovery of the peril is a just inference from the evidence, though denied by the defendant, as well as those eases in which the discovery is admitted or not denied, and liability is sought to be avoided on other grounds. Doubtless, in formulating the ■instruction in this case, the trial court was laboring under the uncertainty induced by the statement of the rule as there made. But be this as it may, it has no application unless all of the elements heretofore enumerated appear in the case. It has no application to this ease, because there was no antecedent negligence on the part of plaintiff.
A person, however, may be put in a position of peril by circumstances for which he is not responsible, and for this reason is not chargeable with antecedent negligence. To illustrate: Thugs may beat into insensibility and rob a man near a railroad. To destroy the evidence of their crime, they place their victim upon the track so that he may be killed by a passing train. It cannot reasonably be anticipated that anyone will be upon the track at that place; yet if those in charge of a train discover his situation, it at once becomes their duty to exercise such care as they may under the circumstances to avoid injuring him. If they discover him while it is still within their power, by the exercise of ordinary care, to stop the train, they must do so, under the penalty of making themselves and their employer liable. The plaintiff in this case was on the track without his own fault; yet to say that the engineer, though seeing his peril, was not bound to exercise such care as he could to avoid injuring him, is equivalent to saying that the engineer was at liberty to take his life because he was so unfortunate as to have been forced from his place of safety on the platform, upon the track by the blow which he received from behind. In such a case the obligation to exercise reasonable care to avoid ^injury must be observed. Of course, if the defendant company 1 was under obligation to keep a lookout at Huntley station, then, under the rule for which counsel for plaintiff contend, the question is not whether the engineer did discover plaintiff’s position in time to avert the injury, but whether under the circumstances he ought to have discovered it. We think the weight of authority gives support to the rule that a railway company is bound to use special care and watchfulness at points upon or near its track and at its open stations where the presence of persons, especially in considerable numbers, may reasonably be anticipated. On this subject Mr. Thompson says: “At such places the railway company is bound to anticipate the presence of persons on the track, to keep a reasonable lookout for them, to give warning signals, such as will apprise them of the danger of an approaching train, to moderate the speed of its train so as to enable them to escape injury; and a failure of duty in this respect will make the railway company liable to any person thereby injured, subject, of course, to the qualification that his contributory negligence may bar a recovery.” (2 Thompson on Negligence, sec. 1726.) It is a matter of common knowledge that at such places persons often do not fully appreciate the dangers incident to the coming and going of trains, or that they grow careless and inattentive to such an extent that they unconsciously fall into danger. It is also true that when, as in this case, the approach to a station is such that its use by those endeavoring to reach or leave trains, or to go there to transact business with the company’s agents requires them to cross the track, they may expose themselves to the same danger from the moving of trains as is encountered at highway crossings. Therefore, a rule which requires the railway company to keep a lookout when its trains are approaching such places, is humane and conservative of human life. Such a rule finds recognition in the following cases: Thomas v. Chicago, Milwaukee & St. Paul Ry. Co., 103 Iowa, 649, 39 L. R. A. 399, 72 N. W. 783; Eppstein v. Missouri Pac. R. Co., 197 Mo. 720, 94 S. W. 967; Chesapeake & Ohio R. Co. v. Nipp’s Admx., 125 Ky. 49, 100 S. W. 246; Johnson v. Louisville & N. R. R. Co., 122 Ky. 487, 91 S. W. 707; Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361; Fleming v. Louisville & N. R. Co., 106 Tenn. 374, 61 S. W. 58; Texas Midland R. Co. v. Crowder, 25 Tex. Civ. App. 536, 64 S. W. 90; Chesapeake & Ohio R. Co. v. Rodgers, 100 Va. 324, 41 S. E. 732; Brackett’s Admr. v. Louisville & N. R. R. Co., 33 Ky. Law Rep. 921, 111 S. W. 710; see, also, note to Martin v. Hughes Coal Creek Co., 41 L. R. A. (n. s.) 267; Palmer v. Oregon Short Line R. Co., 34 Utah, 466, 16 Ann. Cas. 229, 98 Pac. 689. The rule includes all persons at places where their. presence may be' reasonably anticipated, whether they have business relations with the railway company or not; and while those who go upon the premises of the company by invitation to transact business with it are technically trespassers if they get upon the track at places away from the crossings provided for them, nevertheless the company cannot be permitted wholly to omit all precautions for their safety. Whether or not the railway company is bound to keep a lookout at any time depends upon the circumstances of the particular ease.
This brings us to the question whether the evidence from any point of view is sufficient to charge the defendant. Neither of the trains designated as No. 3 and No. 4 was scheduled to stop at Huntley. Both were through-trains. This fact seems to have been generally known. Whether the plaintiff knew that train No. 4 would not stop, the evidence does not disclose; he was informed, however, that train No. 3 would not stop. The only reason he had for thinking the contrary was that he had a telephone message from his friend that the latter would arrive on that train. Not having been informed by any agent of the company that the train would stop, he had no reason to think that it would. His presence at the time, then, was not by invitation of the company. In order to meet the demands of present-day conditions, railway companies may run through-trains consisting wholly of Pullman cars, provided they make suitable provision to accommodate persons who do not care to use such trains by other trains running at reasonable intervals. (Doherty v. Northern Pacific R. Co., 43 Mont. 294, 115 Pac. 401.) For the same reason, and under like restrictions, they may run through-trains without stopping except at principal stations. In such cases it is not incumbent upon them to bring home to the public notice of their rules designating the stations at which their trains will stop in order to take on or discharge passengers. Persons desiring to know when and where such trains stop are under obligation to inquire for information from the agents of the company and to conduct themselves accordingly. The duty to keep a lookout in passing .stations at remote and out of the way places, if it arises, is to be measured by the character of such places, the time of the day or night when they are reached, and other like circumstances; and if, as in this case, the station is one which is passed at an early hour in the morning when it cannot reasonably be anticipated that persons are present to become passengers or to engage in the transaction of business with the agents of the company, the company is under no more obligation to keep a lookout than it is in the open country or at any other place where persons are not expected to be. Of course, the company may not relax the care and vigilance necessary to the safety of its passengers. The obligations in this behalf, however, do not require it to keep a lookout for those who chance to be in the way of its trains at places where their presence cannot reasonably be anticipated, whether they are technically trespassers or not. Under the circumstances disclosed here, there was no obligation to keep a lookout.
Nor do we think that the evidence justifies the conclusion that the engineer discovered the position of plaintiff. According to the testimony of defendant McDonough, as he approached the station his duty under the rules of the company required him to observe the semaphore for signals and the switehlights in order to determine whether the track was clear. This duty continued until he had passed the station. He stated that as he approached the station, having reduced the speed of his train to twenty-five miles per hour, he was observing the semaphore above and beyond the station for signals; that he was also observing the switchlight at the junction of the track with that of the Chicago, Burlington & Quincy Railway, which was also beyond the station, incidentally watching the line of track as it was disclosed by the headlight, and that he did not discover any object upon the track at all. There was evidence to the effect that the body of a man lying on the track could be distinguished as such probably from a distance of 350 to .400 feet, a space amply sufficient to give the engineer time in which to stop the train when going at the rate of twenty-five miles an hour. Whether a person crossing the track in the position in which plaintiff was could be seen, to quote the words of an experienced engineer who was examined by the plaintiff, “would depend on whether or not a man’s vision was directed away from the rail for an instant. It could be seen between five and six hundred feet if he was looking at nothing else, and would accordingly see the object.” The witness stated further: “If the engineer’s attention was called to the object as he drew nearer to it, he could discern something as to what it was. At a distance of 400 feet the object would have to move quite a little; something so that it would draw his attention. It would have to move enough so that he could see what it was. He would have to get within two or three hundred feet of it to see whether it was a dog or a person. At a distance of three hundred feet the light would be of such a character that if he saw the object he could tell whether it was a dog or a person. If a man’s vision caught that object I would say he could tell what it was within two or three hundred feet of it. ’ ’ This witness also stated that supposing the plaintiff had gotten his body entirely off the rail, except his right foot, whether the engineer could see the foot would depend “a whole lot” upon the nature of the place, “whether the end of the ties stuck above the ground, * * ~ whether it was a smooth place, * * * whether or not there was a dip, ’ ’ and whether or not he got a glimpse of it by reason of its movement. It may be added that the condition of vegetation along the track, if there was in fact any there, the shadows cast by the light and other similar conditions might have been considered as affecting the opinion expressed by the witness if they had been called to his attention. What the conditions actually were the evidence does not disclose. Taking into consideration the fact that the engineer was not required to keep a lookout for persons on the track; that his attention was necessarily directed to the semaphore and the junction lights; that as soon as the plaintiff fell upon the track he hastened as rapidly as he could-to crawl across it; and that at the moment of the collision his right foot only was over the line, the qualified opinion of this witness and one other who gave similar testimony, was not, we think, evidence sufficient to justify the conclusion that the engineer saw the plaintiff at all. Besides, if plaintiff’s own account of his situation is to be accepted as true, the engineer, though he saw plaintiff’s foot upon the rail, was not bound to make an effort to stop the train; for he could not anticipate that anything would then interfere to prevent plaintiff from getting entirely clear of the track before the train would reach him.
The district court should have directed a verdict for the defendant. The judgment and order are accordingly reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiff states his cause of action as follows: “(1) That on or about the 12th day of November, 1911, this plaintiff found, wandering upon the prairie in the county of Chouteau, a band of about five hundred (500) sheep belonging to this defendant, which said sheep this plaintiff immediately took into his possession and promptly gave notice to this defendant, the owner thereof, and that he cared for and fed the said sheep until the 29th day of January, 1912. (2) That $187 is a reasonable compensation for the care of said sheep; that $100 is a reasonable reward for the finding and beeping of said sheep. ’ ’ An allegation of nonpayment is followed by the prayer. The trial resulted in a verdict in favor of plaintiff, and, from the judgment entered thereon and from an order denying him a new trial, defendant appealed.
1. Court and counsel apparently proceeded upon the assumption that sections 5178 to 5186, Revised Codes, dealing with the subject “Finding,” as applied >to lost property,' are intended to cover the ease of one who finds estray domestic animals. Whether this assumption is justified is not before us. Upon the theory adopted, the complaint fails to state a cause of action. Plaintiff does not count upon a contract, express or implied, but seeks recovery for a liability or obligation imposed by special statute. In such a case the rule is settled in this state that, in order to avail oneself of the statute relied upon, the complaint must state the facts which bring him squarely within its terms. (Kelly v. Northern Pac. Ry. Co., 35 Mont. 243, 88 Pac. 1009; Thurman v. Pittsburg etc. Copper Co., 41 Mont. 141, 108 Pac. 588; Miley v. Northern Pac. Ry. Co., 41 Mont. 51, 108 Pac. 5; Kinsel v. North Butte M. Co., 44 Mont. 445, 120 Pac. 797.) Whatever else may be said of the statute under consideration, this much is certain: The subject matter is lost property. The several provisions can be invoked only in the event that the property in controversy was in fact lost. To bring himself within the statute, it was necessary for plaintiff to allege that the sheep—the subject matter of this action—were lost, and, in failing to do so, he fails to state a cause of action upon the theory adopted by him. Counsel for respondent is in error in urging that this necessary allegation omitted from the complaint was supplied by the answer.
2. Upon the trial, plaintiff was asked: “Q. Mr.-Kirk, what would you consider the reasonable reward for the finding of the band of sheep that you found, on or about the 12th day of November, 1911, at your ranch, numbering about 500 head?” and, over -objection he answered: “$100.” On cross-examination, he testified: “I base my claim for $100 for letting them stay there; for coming home and seeing them there. ’ ’ An instruction was given that, in addition to the compensation awarded plaintiff, the jury might add such sum, not exceeding $100, as, in their judgment, constituted a reasonable reward for keeping the sheep. It is quite evident that plaintiff’s theory was that a reward is a mere gratuity, a gift, and that this theory found favor with the trial court. It is not contended that this $100 claimed as a reward represents the value of time spent, or labor expended upon the sheep, or the value of the use of plaintiff’s premises, or of feed consumed, or that it is demanded by way of recompense for the responsibility imposed by the care of these animals. All these elements were considered elsewhere. By what process plaintiff arrived at the exact amount ($100) is not disclosed.
It is elementary that the law does not give something for nothing. Except in' those rare cases of aggravated circumstances where punitive damages are recoverable, the law proceeds uniformly upon the theory of compensation. If a party can be made whole, if he can be restored to the status quo, if damages in money will reimburse him for whatever he has done for, or suffered at the hands of, another, he cannot complain, and he has neither legal nor moral excuse for demanding more. To speak of an enforced gratuity is a contradiction of terms, and a suit to compel a gift is an anomaly in the law.
Counsel refer to section 5181, Bevised Codes, as authority for the position taken by the plaintiff and adopted by the court. That section reads: “The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it.” Standing alone, it does not admit of the construction placed upon it; but we are not permitted to consider it alone. Section 5178 provides: “One who finds a thing lost is not bound to take charge of it, but if he does so, he is thenceforth a depositary for the owner, with the rights and obligations of a depositary for hire.” When these two sections are construed together, the terms of section 5181 are made plain. The depositary for hire is only entitled to ordinary compensation, except in so far as this rule is modified by section 5159; and, since the plaintiff is in no better position than he would have been had he taken these sheep from the owner under an agreement to care for them for reasonable remuneration, his recovery must be based upon the theory of compensation alone. The term “reward,” as used in section. 5181, means remuneration or pay. (Webster’s International Dictionary; 34 Cyc. 1730.) The same word is used in this same sense in section 5154, and the conclusion is fortified by a consideration of section 5146, which enumerates some of the duties of the depositary of live animals. In submitting to the jury the right of plaintiff to recover a gratuity, the trial court erred; and, since it is impossible to determine to what extent the verdict was influenced by this consideration, a new trial must be had.
3. Complaint is made of certain rulings upon the introduction of evidence, but these alleged errors will doubtless not occur upon a retrial.
While plaintiff cannot go beyond the issues made by the pleadings and prove the value of services rendered about the care of an entire band of sheep, including the sheep mentioned in his complaint, still the fact that he was earing for other sheep at the same time presents no obstacle to his recovering whatever is justly due him for his services, expenses, etc., laid out about the particular sheep in controversy here, provided his evidence is sufficient to disclose to the jury the value of the proportion of his time, labor, feed, etc., given to the particular sheep mentioned in his complaint.
Since this cause must be remanded for a new trial, we refrain from commenting upon the sufficiency of the evidence.
4. Complaint is made of instruction No. 3%, given to the jury. We think it correct so far as it goes. If defendant desired a more specific instruction upon the subject of lost property, it was his duty to offer one. (Frederick v. Hale, 42 Mont. 153, 112 Pac. 70.) His offered instruction No. 2 was not more complete than the one given by the court.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed md remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
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PER CURIAM
Respondent's motion to dismiss the appeal herein was this day submitted, and the court after due consideration ordered the appeal dismissed in accordance with said motion.
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The respondent, plaintiff below, while driving, on the night of October 11, 1909, upon what is known as the Elk creek road— a public highway in road district No. 1, Lewis and Clark county —was precipitated into an unguarded washout, and sustained personal injuries. To recover damages for such injuries, he brought this action against the appellant, who was supervisor of district No. 1, and also against the persons who were at that time county commissioners of Lewis and Clark county, grounding his action upon negligent failure to repair and negligent failure to warn the public of the danger. In consequence of the decision of this court upon a former review of this case (Smith v. Zimmer, 45 Mont. 282, 125 Pac. 420), the county commissioners ceased to be defendants, and the action proceeded against the supervisor alone. The trial was to the court, with a jury, who, by their verdict, awarded the respondent damages in the sum of $2,000.' Judgment upon the verdict was duly entered, and, from that judgment, as well as from an order denying appellant’s motion for new trial, these appeals are prosecuted.
So far as the liability of appellant is concerned, the facts disclosed by the present record do not substantially differ from those stated in the former decision by this court. Further reference to them, therefore, need not be made, save to add that the evidence shows the washout to have occurred early in June, 1909; that appellant was promptly advised of it; that he provided no barrier or warning of any kind; that the respondent did not know of the washout; and that he could not see it at the time he was injured. In the former decision we said: “Under the facts appearing in the evidence, a prima facie ease of liability is made against the defendant Zimmer for failure to make the repairs by removing the obstruction, or, in ease he could not do so, for failure to warn the public of the existing condition. * * * At the trial * * * the defendants may be able to show that the conditions were such that, with the means at their disposal, they were unable to make the necessary repairs;1 # * * but even this would not excuse the omission to take suitable measures to give notice of the obstruction or to provide suitable barriers to prevent a traveler from being injured by it, if the facts show that such was the ease.”
Sixteen errors are assigned presenting these questions, which we answer in their order:
1. Whether two certain questions in the cross-examination of the witness Doty were properly permitted. We think they were properly permitted, because the door was opened for them in the direct testimony of this witness.
2. Whether certain instructions proposed by appellant should have been given. We think not. These instructions proceed on the theory that exoneration of the appellant would follow if his failure to repair was due to lack of funds; they ignore the fact that, under the former decision of this ease, it was the appellant’s duty, regardless of funds, to suitably warn the public, and, if necessary in the exercise of due care, to barricade the washout.
3. Whether certain instructions, given at the instance of respondent, were justified. We think they were justified by the former decision of this case., All of them may not have been necessary; but objection was not made upon the ground of repetition.
4. Whether the appellant’s motion to direct a verdict, and his later motion for a new trial, should have been sustained. We are not favored with any argument directed specifically to the denial of these motions; but the testimony presented a case for the jury, under the former decision of this court. The record does not disclose that any imperative reason was presented to the district court for granting a new trial.
The judgment and order overruling the motion for new trial are therefore affirmed,
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
Appellants Hammermeister, Reagan, William Mancoronal and Elizabeth Mancoronal, et al., appeal from the judgment of the Ninth Judicial District Court, Pondera County, in which it granted Northern Montana Joint Refuse Disposal District, Teton County, Glacier County and Pondera County, City of Conrad, City of Valier and Thomas C. Hammerbacker’s (collectively NMJRDD) motion for summary judgment and denied appellants’ motion for summary judgment. We affirm.
All parties agreed that there were no genuine issues of material fact and, thus, the matter was appropriate for summary judgment ruling under Rule 56, M.R.Civ.P. The undisputed facts as related by the District Court are as follows: NMJRDD was created in 1990 following several years of discussion between interested persons in several northern Montana counties and municipalities regarding disposal of refuse in light of the advent of more stringent federal regulation of land fills. The original Resolution of Intention to create NMJRDD described a land area larger than the district which was ultimately created. Notice of the original Resolution of Intention was properly given according to statute. However, no additional affirmative notice of the reduction in size was provided by the governmental entities creating the district. The reduction in size was the result of the fact that, although the resolutions passed by Glacier, Teton and Pondera Counties included the territory within Toole County, Toole County itself did not pass a resolution to create the district and thus was not included in the final refuse district. Appellants’ challenge to the formation of NMJRDD is based on the lack of subsequent notice of the reduction in size of the district.
Following its creation, NMJRDD developed a roll-off site and landfill site, incurred bond indebtedness, assessed and collected fees for its services from the residents of the district, including the appellants in this matter, and was utilized by the citizens of the district as well as other entities on a contract basis. No person is subject to assessment by the district whose property was not included in the original Resolution of Intention, though persons (who were not parties to this proceeding) whose property was included in the original Resolution of Intention, are not part of the district as finally created. In other words, the notice was overly broad.
Section 7-13-212, MCA, requires that, before ordering any proposed improvements, the commissioners shall pass a resolution creating the refuse disposal district “in accordance with the resolution of intention theretofore introduced and passed by the commissioners.” Appellants contend that the county commissioners didnot create a refuse disposal district in accordance with the Resolution of Intention because the boundaries of the district were reduced from the boundaries set forth in the notice of intent to create.
The question presented by the cross-motions for summary judgment is whether the initial creation of NMJRDD is subject to challenge due to the fact that the original Resolution of Intention to create NMJRDD described a land area larger than the district ultimately created. In other words, does the fact that the land area ultimately included in the NMJRDD was smaller than the area described in the original Resolution of Intention invalidate the NMJRDD?
DISCUSSION
The statutory procedure for creation of a joint refuse disposal district is set forth in Title 7, Chapter 13, part 2, MCA (1989). Pursuant to the statutory procedure, it is necessary for the county commissioners of the counties involved to adopt a Resolution of Intention to create a refuse disposal district. Such resolution is required to contain, among other things, a general description of the territory or lands of said district, giving the boundaries thereof. Section 7-13-204(2)(c), MCA. The counties of Pondera, Glacier and Teton passed resolutions of intention setting forth the requisite information. Because the proposed boundaries of the joint refuse disposal district included various municipalities, it was necessary that the commissioners of each of the three counties transmit a copy of their respective “Resolutions of Intention” to the executive head of each of the cities or towns within the proposed district in that particular county so that the resolution could be considered by the city or town council. Section 7-13-206, MCA.
Thereafter, if any of the city or town councils, by resolution, concur in the resolution of the county commissioners, the city or town council must transmit a “Resolution of Concurrence” to the county commissioners. On the other hand, if an incorporated city or town council does not concur in the resolution, then the county commissioners have no authority to include said city or town in the district. The commissioners can, nonetheless, “continue to develop the district, excluding said city or town.” Section 7-13-207, MCA. Thus, the legislature, having specifically authorized the commissioners to proceed to develop the district after excluding any city or town which chooses to opt out, specifically recognized that the final boundaries of the district may well be smaller than those outlined in the initial resolution of intention.
Section 7-13-208, MCA, then requires the commissioners to give notice of the passage of the resolution of intention and resolution of concurrence, if applicable, by publishing a notice describing the general characteristics of the collection system; the proposed fees to be charged for services; designating the time and place where the commissioners will hear and pass upon protests made against the operation of the proposed district; and “stating that a description of the boundaries for the proposed district is included in the resolution on file in the county clerk’s office.” The statute does not require that the notice describe the boundaries of the district or lands included in the district but, rather, refers the reader of the notice to the description of the boundaries included in the resolution on file in the county clerk’s office. These notices were required to be published and mailed to every person firm, or corporation having real property within the proposed district.
At any time thirty days after the date of first publication of the notice, any owner of property liable to be assessed for said services is entitled to make written protest against the proposed service or against the proposed fees. The protest is required to be in writing and delivered to the county clerk. Section 7-13-209, MCA. Under § 7-13-210, MCA, the commission is required to conduct a hearing and proceed to hear and pass upon all protests and “its decision shall be final and conclusive.” Pursuant to § 7-13-212, MCA, the commissioners are deemed to have acquired jurisdiction to order improvements immediately upon the occurrence of one of the following: when no protests are delivered to the clerk within the specified time limit, when less than fifty percent of the family residential units in the proposed district protest, or when a protest shall have been overruled.
In the present case, each of the three counties determined that protests were filed by less than fifty percent of the family residential units in their respective portions of the proposed district. Accordingly, Teton, Glacier, and Pondera Counties each adopted resolutions creating the joint district.
Did the District Court err in holding that appellants were estopped from challenging the formation of the refuse district some five years after its formation?
Appellants base their challenge on the fact that the refuse district as finally adopted, contained a smaller geographic area than what was originally delineated in the Notice of Intention to Create. Appellants did not file their suit challenging the creation of the refuse district until 1995. In light of the fact that the district, as of the time of the challenge, had been operating for more than five years, the District Court was correct in relying upon Henderson v. School Dist. No. 44 (1926), 75 Mont. 154, 242 P. 979, and concluding that, given the public’s reliance on the district for five years, appellants were estopped from challenging the creation of the refuse district.
Henderson involved an annexation of a small Fergus County school district (#42) to an adjacent and larger district (#44). The annexation was accomplished in 1919 by order of the county superintendent. Validity of the annexation was not challenged until five years later in 1925. All residents within the district, including the plaintiffs, acquiesced in the annexation, took part in the school elections, sent their children to its schools and paid the taxes levied upon their property for its support and maintenance. Henderson, 242 P. at 980. The plaintiffs in Henderson argued that the annexation was void since there had been no election on the issue in each of the districts, as required by statute. The Supreme Court in Henderson found that since there had been a good faith attempt to comply with an existing law, it could have found that the school district was a de facto corporation and thus not subject to collateral attack. Henderson, 242 R at 981. The Court chose, however, to rely on an estoppel doctrine based upon public policy.
After a community has for years, as in the case at bar, exercised the functions of a public corporation, its legal existence cannot be questioned without causing disturbance more or less serious, and if the question of the regularity of its organization can be kept open to collateral inquiry indefinitely, no one can ever be secure in dealing with such entities, or be sure that taxes levied, bonds floated, or contracts necessarily entered into for the transaction of its business will be valid and enforceable. The transaction of public business might be blocked at any time at the will or whim of a private individual and the credit of the corporation impaired or destroyed. For these and other cogent reasons it is held that:
“An individual may be estopped by his conduct to attack the validity of the incorporation of a municipality, even though, but for such estoppel, he might do so.” 28 Cyc. 175.
Thus acquiescence in the exercise of corporate functions, and dealing with the corporation as such over a period of years will estop all persons dealing with the corporation from assailing its legality. [Citations omitted.]
Henderson, 242 P. at 981-82.
The plaintiffs in Henderson argued that they should not have been subjected to estoppel by acceptance unless they had knowledge of the relevant facts and that they were unaware of the creation of the district until five years later, in April of 1925. Despite the lack of an election, the Court upheld the annexation noting that plaintiffs did more than accept the benefits; “they dealt with the district and accepted liability as well; they paid the taxes levied against their property for a number of years, thus recognizing the district and acquiescing in its assumption of corporate capacity ...” Henderson, 242 P. at 982. The Court then went on to point out that the estoppel being applied was not based upon plaintiffs’ acceptance of or acquiescence in benefits, but was an estoppel based on public policy.
[T]he estoppel here invoked is not, therefore, strictly an estoppel by acceptance of benefits, but rather it is an estoppel based upon public policy, because of the confusion into which a judgment, at this late date, that the organization was void, would throw public and private rights and interests acquired through years of operation with the acquiescence of the inhabitants, and is therefore not dependent upon knowledge of the facts.
Henderson, 242 P. at 982 (emphasis added).
In Scilley v. Red Lodge-Rosebud Irr. Dist. et al. (1928), 83 Mont. 282, 272 P. 543, this Court refused to invalidate the creation of an irrigation district despite a showing that an absentee landowner was not given notice of the inclusion of his real property in the new irrigation district. Although that single landowner was allowed to be excluded from the district, the Court, relying on Henderson, stated:
[1]f after years of such operations, the creation of a district may be declared invalid, wholesale ruin and disaster may follow within and without the territory included within the supposed district; bondholders be stripped of their security for money loaned in good faith, and future worthy projects be subject to suspicion and distrust. For these reasons, courts should declare against the validity of the organization of such going concerns only for the most cogent reasons, and when irresistibly compelled to such a course.
Scilley, 272 P. at 550.
Those same public policy concerns mandate a similar result in the present case. In the five plus years since its creation, the refuse district has developed a roll-off site and a landfill site; it has incurred bonded indebtedness and it has assessed and collected fees for its services from the residents of the district, including the appellants in this matter; and it has been utilized by the citizens of the district, as well as other entities on a contract basis. As in Henderson, the undisputed facts indicate that there was a good faith attempt to comply with an existing statutory scheme for annexation. Thus, although there would be a basis for finding a de facto corporation not subject to collateral attack, we choosy instead to hold that the demands of public policy require an estoq £el. It is now over five years since the district was created. To decl>; e that the refuse district is void at this late stage would throw j iLjlic and private rights into considerable confusion. If districts siVj\ as this were indefinitely subject to collateral attack, no one wo- ever be secure in dealing with them, or confident that taxes, bo. s or contracts entered into for the sake of public business were alid and enforceable. “The transaction of public business might i blocked at any time at the will or whim of a private individual am die credit of the corporation impaired or destroyed.” Henderson, 24: P. at 981-82.
Appellants argue that the lack of a new notice setting forth the redefined boundaries was jurisdictional. They rely on our decision in Johnston v. City of Hardin (1919), 55 Mont. 574, 580, 179 P. 824, in support of their contention that the primary purpose of the notice was defeated because of the difference between the area described in the notice of intent as compared to the area encompassed in the final district. The decision in Johnston, however, was based upon the fact that:
It is established by this record that the resolution to which plaintiff and other property owners were referred for a description of the boundaries of districtNo. 9 describes territorynone ofwhichis in that district, and the same thing is true with respect to district No. 10.
Johnston, 179 R at 825. In other words, the resolution totally failed to describe any of the territory within the district. Thus, Johnston is clearly distinguishable from the case at bar in which the notice of intention was overly broad; that is, it encompassed some territory which was not ultimately part of the district. However, all territory which was not included in the final district was included within the notice. As set forth above, this is not a case where an affected party did not receive notice.
The Court cited Johnston in Wood v. City of Kalispell (1957), 131 Mont. 390, 310 P.2d 1058, which involved a claim that defective notice of intent to create a special improvement district rendered the district void ab initio. In Wood the question was whether the city had jurisdiction to create a special improvement district where the notice of intention to create it was not mailed to all property owners in the proposed district. Although notices were mailed to some 424 property owners in the district, one owner (Pettibone) was not mailed a notice. Wood, 310 P.2d at 1059.
Citing Scilley, 272 P. at 552, we held that service of notice as prescribed by statute is jurisdictional and, thus, the failure to send notice to Pettibone deprived the city of jurisdiction to proceed as to him. Wood, 310 P.2d at 1060. As to the remaining property owners, the city argued that under the precedent in Scilley, the district should be void only as to the one property owner who did not receive notice, not as to all those who did. Wood, 310 P.2d at 1060. This Court, however, rejected that argument for the reason that, unlike Scilley where the challenge arose many years after the district had been created, the challenge in Wood was brought before the city commenced work or began selling bonds. Thus, in contrast to Scilley, there was no public reliance as a basis for an estoppel, laches or waiver theory. Wood, 310 P.2d at 1060-61.
Wood is clearly distinguishable from the present case in a number of particulars: In Wood, the Court held that failure to serve notice as prescribed by statute was jurisdictional. Here, there was no failure to serve notice as prescribed by statute. Rather, the statute in question provided that notice must contain a “general description of the territory or lands of said district, giving the boundaries thereof.” Section 7-13-204(2)(c), MCA. There is no statutory requirement that the notice be reissued if the boundaries are reduced in size. Secondly, Wood and Scilley involved situations where a landowner was denied due process because he/she did not receive the requisite notice. In the present case there is no contention that there was a denial of due process through lack of notice. On the contrary, the contention is that notice went out to people who were ultimately not included within the district. That is, that too many rather too few received notice. Finally, unlike Wood where the challenge was brought before any work commenced, appellants did not raise their challenge to the NMJRDD until years after the district was created and in full operation thus giving rise to questions of estoppel. Even assuming, arguendo, that there was a legal requirement that the Resolution of Intention be re-noticed due to a reduction in territory, failure to re-notice did not adversely affect any of the landowners within the district as finally created and, thus, was not jurisdictional.
In summary, we hold that all affected parties received due process of law through receipt of notice of the intent to create the district; there was no statutory requirement that the notice of intent to create be re-noticed when the size of the district was reduced; and even if there were such a requirement, since the district has now been in operation for five plus years, the appellants are, for public policy reasons, estopped from challenging its creation or existence.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, ERDMANN and GRAY concur.
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
On February 28, 1995, Nicolle Jean Will filed a petition for adoption in the District Court for the First Judicial District in Lewis and Clark County. The Department of Family Services (DFS) filed a motion to dismiss the petition on April 7, 1995. Following an oral argument, the District Court granted DFS’s motion to dismiss. Will appeals the District Court’s order granting the motion to dismiss. We reverse the order of the District Court and remand this case to the District Court for proceedings consistent with this opinion.
There are two issues on appeal:
1. Did the District Court err when it concluded that it lacked jurisdiction, pursuant to § 40-8-lll(l)(c), MCA, to review a petition for adoption absent the agency’s consent to adoption?
2. Did the District Cotut err when it concluded that pursuant to § 40-8-108, MCA, agency placement was a prerequisite to adoption?
FACTUAL BACKGROUND
The following facts are taken from Nicolle Will’s petition for adoption. However, since her petition was dismissed pursuant to Rule 12(b)(6), M.R.Civ.P, we presume the facts to be true for purposes of our review of the District Court’s order.
M.L.M. was abandoned by his biological parents shortly after his birth on December 16,1993. Thereafter, the DFS was granted custody of M.L.M. and placed him with Deborah Liggett, a licensed foster parent. On February 1,1994, shortly after M.L.M. was placed in her care, Liggett placed M.L.M. in the care of Nicolle Will. At that time, M.L.M. was only six weeks old.
From February 1,1994, until January 31,1995, Will had sole care and custody of M.L.M. and provided for all of M.L.M.’s needs without any compensation from either Liggett or DFS. During that one-year period, Will met with social workers, child resource specialists, and supervisors, and communicated to each her desire to adopt M.L.M. After one of DFS’s agents assured Will that she had a “99 percent chance” of adopting M.L.M., Will entered into and completed a ten-week adoption applicant course required by DFS.
On January 31, 1995, however, Deborah Liggett took physical custody of M.L.M. on behalf of DFS. Liggett informed Will that DFS had decided to place M.L.M. elsewhere for adoption.
On February 28,1995, Will filed a petition for adoption of M.L.M. in the First Judicial District Court. DFS filed a motion to dismiss Will’s petition. DFS maintained that the District Court did not have jurisdiction to grant Will’s petition because DFS had not given its consent to the adoption, pursuant to § 40-8-111, MCA, and because DFS had not placed M.L.M. with Will for adoption, pursuant to § 40-8-108, MCA. Following a hearing on July 27, 1995, the District Court granted DFS’s motion to dismiss. The court held that since the court was excluded from the list of those who may place a child for adoption pursuant to § 40-8-108, MCA, and since DFS had refused to consent to Will’s petition for adoption of M.L.M. pursuant to § 40-8-111, MCA, the court did not have jurisdiction to review the merits of Will’s petition for adoption.
ISSUE 1
Did the District Court err when it concluded that it lacked jurisdiction, pursuant to § 40-8-lll(l)(c), MCA, to review a petition for adoption absent the agency’s consent to adoption?
The District Court dismissed Will’s petition for adoption based in part on its conclusion that it did not have jurisdiction pursuant to § 40-8-lll(l)(c), MCA, to entertain a petition for adoption absent DFS’s consent to adoption. We review a district court’s conclusions of law to determine whether they are correct. In re Estate of Alcorn (1994), 263 Mont. 353, 355, 868 P.2d 629, 630.
Section 40-8-111, MCA, provides in relevant part:
(1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
(a) both parents, if living, or the surviving parent of a child ...
(b) the legal guardian of the child if both parents are dead or if the rights of the parents have been terminated by judicial proceedings and the guardian has authority by order of the court appointing the guardian to consent to the adoption;
(c) the executive head of an agency if the child has been relinquished for adoption to the agency or if the rights of the parents have been judicially terminated or if both parents are dead and custody of the child has been legally vested in the agency with authority to consent to adoption of the child', or
(d) any person having legal custody of a child by court order if the parental rights of the parents have been judicially terminated. In that case, the court having jurisdiction of the custody of the child shall consent to adoption and a certified copy of its order must be attached to the petition.
(Emphasis added.) In this case, because M.L.M.’s biological parents’ rights had been judicially terminated, and because custody and the right to consent to M.L.M.’s adoption had been transferred to DFS, subsection (l)(c), which provides for consent by the head of the agency, was applicable. Because the agency refused to consent to Will’s adoption of M.L.M., however, DFS maintains that the District Court was without jurisdiction to review Will’s petition for adoption. In addition, DFS contends that the District Court was without jurisdiction to review the agency’s decision to withhold its consent to adoption.
Although § 40-8-lll(l)(c), MCA, predicates adoption on agency consent, it does not follow that the agency’s right to withhold consent is absolute. As this Court has recognized for more than fifty years:
[T]he power of the district court may at any time be invoked to guard and protect the welfare of the minor child. No statute may be so construed as to deprive the court of its jurisdiction in that respect.
State ex rel. Frederick v. District Court (1946), 119 Mont. 143, 150, 173 P.2d 626, 629 (emphasis added). In Frederick, we suggested that the district court’s jurisdiction could be invoked “to guard and protect the welfare of the minor child” if an agency’s denial of consent was arbitrary, capricious, or unreasonable. Frederick, 119 Mont, at 151, 173 P.2d at 630. Our decision in Frederick was premised on our recognition that the fundamental purpose of Montana’s adoption statutes was to protect the best interests of the child and that the ultimate decision as to the child’s best interests rested with the district court. Fifty years later, our statutory scheme still reflects those principles. See § 40-8-114, MCA (stating Montana’s policy to “ensure that the best interests of the child are met by adoption proceedings” and adding that “[t]he needs of the child must he the primary focus of adoption proceedings”); §§ 40-8-123 and -124, MCA (giving the district court authority to enter a final decree of adoption if the court is satisfied that the adoption is in the best interests of the child).
In the years since Frederick, however, this Court has erroneously elevated agency consent above the fundamental consideration of the child’s best interests. For example, in In re F.H. (1995), 272 Mont. 342, 901 P.2d 96, this Court held that a district court could not enter an order of adoption without a written consent to adoption executed by the executive head of DFS. F.H., 272 Mont, at 348, 901 P.2d at 100. In that case, the district court concluded after a hearing that “overwhelming, substantial, credible evidence” existed to establish that the best interests of the child would be served by granting the petition for adoption; this Court, however, refused to defer to that conclusion and, in effect, shielded the agency’s denial of consent from judicial scrutiny. F.H., 272 Mont, at 345,348,901 P.2d at 98,100. Our decision in F.H. may have been premised in part on language from an earlier case in which we stated:
The wording of the Montana [adoption] act itself and the public
policy of discouraging black market adoptions and private adoptions argue against judicial review of placement decisions.
Lewis v. Catholic Social Servs. (1992), 253 Mont. 369, 372, 833 P.2d 1023, 1025. The stated purpose of discouraging black market and private adoptions, however, is not inconsistent with the district court’s authority and responsibility to review placement decisions to assure that they do not arbitrarily ignore the child’s best interests. Frederick, 119 Mont, at 150, 173 P.2d at 629. Therefore, to the extent that our prior opinions in F.H. and Lewis conflict with our holding today that agency consent is subject to judicial review, we reverse those cases. We reaffirm our holding in Frederick that an agency’s refusal to consent to adoption is subject to judicial scrutiny for a determination of whether that refusal was arbitrary, capricious, or unreasonable.
Although we hold that an agency’s refusal to consent to adoption is reviewable pursuant to § 40-8-lll(l)(c), MCA, we recognize that a different issue is presented in those cases in which parental consent has been withheld pursuant to § 40-8-111(1)(a), MCA. In those cases, we have recognized that because of the harshness of terminating parental rights, and the protected liberty interest in parenthood, the statutory requirements for parental consent must be satisfied before the child’s best interests become paramount. See, e.g., In re V.R.O. (1991), 250 Mont. 517, 522, 822 P.2d 83, 86; In re S.T.V. (1987), 226 Mont. 18, 21, 733 P.2d 841, 842; In re Challeen (1977), 172 Mont. 362, 364, 563 P.2d 1120, 1121; In re Smigaj (1977), 171 Mont. 537, 539, 560 P.2d 141, 143; In re Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377, 1380. In cases in which agency consent is a prerequisite to adoption, however, the requirement of consent is merely an additional safeguard to the child’s welfare. See, e.g., In re McKenzie (Minn. 1936), 266 N.W. 746, 747; In re Harshey (Ohio Ct. App. 1974), 318 N.E.2d 544, 548. In agency consent cases, therefore, the district court must retain the jurisdiction to review the agency’s decision to determine whether it is arbitrary, capricious, or unreasonable. Without such judicial scrutiny, “agency consent becomes superior to all other considerations, even those which ... are clearly of the gravest importance to the whole adoption program.” In re Haun (Ohio Ct. App. 1972), 286 N.E.2d 478, 481.
Our decision in this case is clearly in accord with the case law of other jurisdictions that have reviewed similar mandatory consent statutes. In fact, most courts, faced with similar statutory directives, have provided for judicial scrutiny of agency consent:
In some jurisdictions, the specific mandatory terms, of adoption statutes deprive a court of jurisdiction to render a judgment on an adoption petition without the consent of the agency or institution having the legal custody, and the right to consent to the adoption, of a child whose adoption is sought, at least where the concerns of the agency involved do not constitute arbitrary or unreasonable concerns. Other courts have determined that even so-called mandatory language of an adoption statute does not deprive the court of jurisdiction to determine an adoption petition where the best interests of the child are at stake.
2 Am. Jur. 2d Adoption § 94 at 987 (1994) (emphasis added) (citations and footnotes omitted). See also 2 C.J.S. Adoption of Persons § 55 at 473-74 (1972). Most courts that address the issue of agency consent cite In re Haun (Ohio Ct. App. 1972), 286 N.E.2d 478. In Haun, the Ohio Court of Appeals was called upon to interpret a provision of the Ohio adoption act which provided that absent agency consent no final decree of adoption could be entered. That court held:
[T]he requirement of agency consent was not intended by the legislature to give an unnatural parent an arbitrary, unreasonable or capricious power to defeat judicial review and, coincidentally, impede, in a specific case as in this instance, the objectives of securing qualified adoptive parents and promoting the best interests of a child available for adoption.
Haun, 286 N.E.2d at 481. Other courts, in accord with Haun, have held that a facially absolute requirement of agency consent does not deprive a trial court of jurisdiction to review agency denial of consent. See, e.g., In re Roberts (Ala. Civ. App. 1977), 349 So. 2d 1170, 1172; Stines v. Vaughn (Ill. App. Ct. 1974), 319 N.E.2d 561, 567; Stout v. Tippecanoe County Dep’t of Pub. Welfare (Ind. Ct. App. 1979), 395 N.E.2d 444, 451; Fleming v. Hursh (Minn. 1965), 136 N.W.2d 109, 113; M. v. Family & Children’s Serv., Inc. (N.J. Super. Ct. 1974), 326 A.2d 74, 77; Oxendine v. Catawba County Dep’t of Social Servs. (N.C. 1981), 281 S.E.2d 370, 376; State ex rel. Dep’t of Inst., Social and Rehab. Servs, o. Griffis (Okla. 1975), 545 P.2d 763, 768. In those cases in which the agency’s refusal to consent is contrary to the best interests of the child, courts recognize that “the trial court is wholly justified in proceeding as if the consent which ought to have been given had been given.” McKenzie, 266 N.W. at 748.
In this case, because of the District Court’s erroneous conclusion that § 40-8-lll(l)(c), MCA, precluded it from reviewing Will’s petition, the court did not undertake a hearing to determine whether the agency’s refusal to consent was arbitrary, capricious, or unreasonable. Based on our holding that an agency’s refusal to consent is subject to judicial review, and based on our holding that such review cannot be made without a determination of the child’s best interests, we reverse the order of the District Court which granted DFS’s motion to dismiss and remand to the District Court for a hearing to determine whether the agency’s refusal to consent to Will’s petition for adoption was arbitrary, capricious, or unreasonable.
ISSUE 2
Did the District Court err when it concluded that pursuant to § 40-8-108, MCA, agency placement was a prerequisite to adoption?
In its order dismissing Will’s petition for adoption, the corut concluded that pursuant to § 40-8-108, MCA, a district court does not have statutory authority to overrule an agency’s placement decision and to place a child elsewhere for adoption. As stated above, this Cotut reviews a district court’s conclusions of law to determine if they are correct. In re Estate of Alcorn (1994), 263 Mont. 353, 355, 868 P.2d 629, 630.
Section 40-8-108, MCA, provides that:
A child may be placed for adoption only by:
(1) the department;
(2) a licensed child-placing agency; or
(3) the child’s parents.
Section 40-8-103(14), MCA, defines “placement for adoption” as “the transfer of physical custody of a child with respect to whom all parental rights have been terminated and who is otherwise legally free for adoption to a person who intends to adopt the child.”
In Lewis v. Catholic Social Services (1992), 253 Mont. 369, 833 P.2d 1023, this Court interpreted § 40-8-108, MCA, to constrain courts from effecting placement of children for adoption. We stated:
Section 40-8-108, MCA restricts who may place a child for adoption and does not include courts in its list of who may place a child for adoption. Therefore it is clear that the courts could not place Baby Girl W. with the Lewises.
Lewis, 253 Mont, at 372, 833 P.2d at 1025. In addition, we held that Montana’s adoption statutes and public policy compelled a holding that the agency’s placement decision was not subject to judicial review. Lewis, 253 Mont, at 372, 833 P.2d at 1025. The Lewis decision was followed by this Court in In re F.H. (1995), 272 Mont. 342, 901 P.2d 96.
Our decisions in Lewis and F.H. failed to recognize, however, that pursuant to Montana’s statutory adoption scheme, placement is not a prerequisite to a district court’s determination of the merits of an adoption petition. Section 40-8-121, MCA, sets forth the requirements for a petition for adoption. That section provides:
(1) A petition for adoption must be filed in duplicate, verified by the petitioners, and must specify:
(a) the full names, ages, and place of residence of the petitioners and, if married, the place and date of the marriage;
(b) when the petitioners acquired or intend to acquire custody of the child and from what person or agency,
(c) the date and place of birth of child, if known;
(d) the name used for the child in the proceeding and, if a change in name is desired, the new name;
(e) that it is the desire of the petitioners that the relationship of parent and child be established between them and the child;
(f) a full description and statement of value of all property owned or possessed by the child;
(g) facts, if any, which excuse consent on the part of a parent to the adoption.
(2) One copy of the petition must be retained by the court. The other must be sent to the department of public health and human services or to the child-placing agency participating in the adoption proceeding.
(3) Any written consent required by this part may be attached to the petition or may be filed after the filing of the petition, with the consent of the court.
(Emphasis added.) Although, pursuant to § 40-8-121, MCA, the petitioner is required to file a copy of the requisite consent to adoption, there is no parallel requirement that the petitioner file evidence of placement of the child prior to the filing of the petition. Instead, the statute requires only that the petitioner specify when and from whom he or she will acquire custody of the child. Section 40-8-121(l)(b), MCA. Because placement of the child by DFS, a licensed child-placing agency, or the child’s parents, is not a prerequisite to the filing of a petition for adoption, the district court clearly has authority to review the merits of a petition without evidence of such placement.
The same conclusion was reached by the Court of Appeals of Indiana in Stout v. Tippecanoe County Department of Public Welfare (Ind. Ct. App. 1979), 395 N.E.2d 444, 451-52. In Stout, the County Department of Public Welfare maintained that without placement of a child for adoption “the statutory law provides that no petition for adoption can be granted.” Stout, 395 N.E.2d at 451. The Indiana Court of Appeals, however, reviewed Indiana’s adoption scheme in its entirety and concluded that although there was a statute mandating how placement should be made, there was no requirement that the court find that such placement had been effected prior to the court’s review of the petition for adoption. On the issue of placement, the court stated:
Although certainly a desirable method of realizing the best interests of the child, placement by a licensed agency or department is not made a condition to the trial court’s decision of the merits of an adoption.
In those jurisdictions we have found in which placement by the welfare department or child-placing agency is a prerequisite to adoption, the statutes specifically provide for this requirement. We therefore hold placement by the Department in the Stout’s home was not a prerequisite to the trial court’s consideration of the merits of Stout’s petition.
Stout, 395 N.E.2d at 451-52 (footnotes omitted). In arriving at its conclusion, the court cited statutes from Kentucky, Delaware, and Connecticut which clearly required that a petitioner could not file a petition for adoption until the child had been properly placed in his or her home for adoption. Stout, 395 N.E.2d at 452, fn. 13. Montana’s statutes, like Indiana’s, do not have such a requirement.
Furthermore, as we stated above, where the best interests of the child are at stake, a district court clearly retains jurisdiction to review an agency’s decision. State ex rel. Frederick (1946), 119 Mont. 143, 150, 173 P.2d 626, 629. Therefore, in the event that an agency’s placement decision is at issue, we hold that the district court has jurisdiction to review that decision to ensure that it is not arbitrary, capricious, or unreasonable. To the extent that our prior opinions in Lewis and F.H. conflict with this holding, we reverse those cases.
On the basis of our holding that the District Court has jurisdiction to review DFS’s refusal to consent to Will’s petition for adoption of M.L.M. to determine whether that refusal was arbitrary, capricious, or unreasonable, and on the basis of our holding that the District Court has jurisdiction to review Will’s petition for adoption without evidence that DFS placed M.L.M. with Will for adoption, we reverse the order of the District Court which granted DFS’s motion to dismiss. We remand this case to the District Court for a hearing to determine whether the agency’s refusal to consent to Will’s petition for adoption was arbitrary, capricious, or unreasonable, and if so, to decide the merits of Will’s petition.
JUSTICES HUNT, NELSON and ERDMANN concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
Plaintiff, Timothy J. Whalen, (Whalen) initiated this suit in Justice Court for possession of rental property, damages, and attorney fees. Following a trial de novo, the District Court for the Thirteenth Judicial District, Yellowstone County, entered judgment for Defendant, John Lewis Taylor, (Taylor) and awarded Taylor damages and possession of property. From that judgment, Whalen appeals and Taylor cross appeals. We affirm in part, reverse in part and remand.
We address the following issues on appeal:
1. Does substantial evidence support the District Court’s finding that Taylor did not abandon the apartment, but that Whalen locked out Taylor in violation of § 70-24-411, MCA?
2. Did Whalen violate §§ 70-24-202 and 70-24-403, MCA, by including a prohibited provision in the rental agreement?
3. Is Taylor entitled to attorney fees under § 70-24-442, MCA, because he prevailed at every stage of the litigation?
4. Did the District Court properly expedite discovery matters and the trial schedule pursuant to § 70-24-427, MCA?
FACTUAL AND PROCEDURAL BACKGROUND
Whalen owns and personally manages the Shannon Rose Apartments located at 703 North 32nd Street in Billings, Montana. Whalen is an attorney, a former legislator, and has owned the Shannon Rose Apartments since 1985. He has used the same rental agreement since 1985. Taylor is a 48-year-old man who works as a janitor in Billings.
On June 23, 1994, Whalen rented an apartment to Taylor under a month-to-month written rental agreement that Whalen had copied from a 1978 Montana Law Review article. Under the agreement, Taylor agreed to pay rent on the first of each month and to pay a security deposit of $250. The rental agreement contained a provision stating that “ [acceptance of a refund of all or a portion of the deposit by Tenant shall constitute a full and final release of Landlord from any claims of Tenant of any nature whatsoever.”
Over the course of the tenancy, Taylor habitually made late rental payments; however, Whalen always accepted those payments. In June 1995, Taylor was again late with the rent payment. In response, Whalen served Taylor a three-day notice to quit by slipping it under Taylor’s door on June 7,1995. On June 13,1995, the parties verbally agreed to extend the time for payment of the rent to June 16, 1995, the date Taylor expected his next paycheck. However, Taylor did not pay the rent by June 16, 1995, and Whalen gave him no additional notice to quit.
Taylor’s paycheck did not arrive on June 16, 1995; however, a co-worker delivered it to Taylor at his apartment on June 17, 1995. Taylor did not pay Whalen the rent during the day on June 17,1995, and when Taylor arrived home that evening he found that Whalen had changed the locks to his apartment. Whalen had in fact changed the locks after 5:00 p.m. on June 17,1995. When Taylor arrived home, he tendered the June rent, but Whalen refused to accept it. Taylor then requested possession of the apartment, but Whalen refused because of the delinquent rent. At Taylor’s request, Whalen did go back into Taylor’s apartment and retrieve some of Taylor’s clothing. They then made arrangements for Taylor to retrieve the rest of his possessions the next day. Taylor moved into the Esquire Motor Inn that night. In early July, 1995, Whalen moved into the apartment.
On June 22, 1995, Whalen filed a complaint in Justice Court, Yellowstone County, for possession of the premises, money damages and attorney fees. Taylor counterclaimed for possession, money damages and attorney fees. Taylor prevailed on all claims in Justice Court. On September 13,1995, Whalen filed a Notice of Appeal to the Montana Thirteenth Judicial District Court, Yellowstone County. After both attorneys moved to substitute two different judges, trial was finally set for October 27, 1995. On October 17, 1995, Whalen served discovery requests on Taylor and the District Court ordered that Taylor answer Whalen’s discovery requests by October 23,1995.
Following a trial de novo, the District Court entered judgment for Taylor, awarding him money damages and possession of the rental property. From this judgment, Whalen appeals and Taylor cross appeals.
DISCUSSION
1. Does substantial evidence support the District Court’s finding that Taylor did not abandon the apartment, but that Whalen locked out Taylor in violation of § 70-24-411, MCA?
Our review of a district court’s findings of fact is set forth as follows:
This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.R A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed.
Solem v. Chilcote (1995), 274 Mont. 72, 76, 906 P.2d 209, 211-12 (quoting YA Bar Livestock Company v. Harkness (1994), 269 Mont. 239, 887 P.2d 1211).
The Montana Residential Landlord and Tenant Act of 1977 (MRLTA) limits a landlord’s recovery of possession of property. See § 70-24-428, MCA. As provided under MRLTA, “[e]xcept in the case of abandonment, surrender, or as permitted in this chapter, a landlord may not recover or take possession of the dwelling unit by action or otherwise....” Section 70-24-428, MCA. Thus, a landlord may take possession of a dwelling unit only under three circumstances: 1) abandonment; 2) surrender; or 3) as permitted in MRLTA. This case deals only with Taylor’s alleged abandonment and Whalen’s unauthorized actions.
This Court has defined abandonment as “the absolute relinquishment of the premises consisting of the tenant’s act or omission and intent to abandon.” Johnston v. American Reliable Ins. (1992), 253 Mont. 253, 258, 833 P.2d 176, 180 (wherein we held that landlord’s one phone call concerning tenant’s whereabouts was not enough evidence to show tenant’s abandonment). In an earlier case, this Court did find evidence of abandonment. Napier v. Adkison (1984), 209 Mont. 163, 678 P.2d 1143. While we decided Napier prior to adopting the formal definition of abandonment in Johnston, we evaluated similar evidence to determine whether the tenants had abandoned the premises. In Napier, when the tenants did not make the rental payment on time, the landlord repeatedly stopped by the tenants’ rental unit, but never found the tenants there. Furthermore, the landlord found that the tenants’ left their dogs unattended on the premises. Finally, the landlord called the tenants’ daughter who stated she did not know where her parents were. All of this evidence clearly supported the District Court’s conclusion that the tenants had abandoned their rental unit. Unlike Napier, the evidence in the case before us on appeal does not indicate that Taylor abandoned his apartment.
Taylor lived consistently in his apartment for over one year. Despite his habitual lateness in paying the rent, Taylor always made arrangements with Whalen for payment. When Taylor was again late with payment of his June 1995 rent, he made arrangements with Whalen to pay the rent on June 16, 1995, when Taylor expected his paycheck to arrive. However, because his paycheck did not arrive on time, Taylor did not meet the June 16th deadline. Instead, Taylor tendered the June rent the following evening after he had received and cashed his paycheck.
In response to Taylor’s failure to pay rent on June 16,1995, Whalen changed the locks to Taylor’s apartment after 5:00 p.m. on June 17, 1995, claiming that Taylor had abandoned the premises. However, later that same evening, Taylor arrived at his apartment and upon meeting Whalen tendered the June rent. Further, after Whalen declined to accept the rent, he refused to allow Taylor access to the apartment to collect his belongings inside.
Nothing in the evidence indicates “absolute relinquishment” of the apartment by Taylor. Taylor kept his belongings in the apartment. He contacted Whalen as to the delinquent June rent and asked for more time to pay, showing his intention to continue to live there. Further, Taylor did ultimately tender the June rent on the same day that Whalen changed the locks to Taylor’s apartment. Based on these facts, Taylor lacked an intent to abandon and he committed no act or omission to indicate abandonment of his apartment. See Johnston, 833 P.2d at 180. We hold that substantial evidence supports the District Court’s conclusion that Taylor did not abandon his apartment, but rather that he intended to pay the rent and continue to live there.
As noted, a landlord’s recovery of possession is limited to three circumstances: abandonment, surrender, or as permitted under MRLTA. Here, Taylor did not abandon his apartment and the parties have raised no issue concerning surrender. Therefore, Whalen’s only other option under § 70-24-428, MCA, was to pursue a permitted course of action under MRLTA, that is, a proper eviction procedure. A proper eviction procedure for a tenant’s failure to pay rent is set forth in §§ 70-24-422(2)(a), 70-24-108 and 70-24-427, MCA. If a tenant does not pay rent when due, a landlord must give the tenant written notice indicating that rent must be paid within three days or the landlord intends to terminate the rental agreement. Sections 70-24-422(2)(a) and 70-24-108, MCA. If the tenant still does not pay, the landlord may terminate the rental agreement and bring an action for possession. Sections 70-24-422(2)(a) and 70-24-427, MCA. Whalen failed to follow this procedure.
While Whalen had provided Taylor with a three-day notice to quit based on Taylor’s failure to pay the June 1995 rent, he subsequently extended the time for compliance. When Taylor did not pay the June rent by the extended deadline, Whalen did not provide Taylor with another notice to quit, nor did he bring an action for possession. Instead, Whalen resorted to a self-help procedure of changing the locks to Taylor’s apartment. In fact, Whalen did not bring suit against Taylor until June 22,1995, five days after he had changed the locks. Section 70-24-427, MCA, authorizes courts, not landlords, to resolve disputes over possession of rental property. Consequently, when Whalen locked out Taylor, he resorted to an extrajudicial eviction procedure in violation of § 70-24-428, MCA, and wrongfully excluded Taylor from his apartment. Whalen, therefore, is liable under § 70-24-411, MCA.
If wrongfully excluded, a tenant has two concurrent remedies under § 70-24-411, MCA. First, a tenant may recover possession or terminate the rental agreement. Additionally, a tenant may recover an amount not more than three months’ periodic rent or treble damages, whichever is greater. Section 70-24-411, MCA. Here, Taylor requested possession of his apartment and elected to prove his rent amount and requested that the District Court treble that amount. We hold that the District Court properly awarded both remedies.
Whalen contends thatneither remedy under § 70-24-411, MCA, was proper in this case. First, Whalen argues the provision in § 70-24-411, MCA, that allows for trebling of rent or damages is intended as a penalty and is therefore punitive in nature. As a result, Whalen contends that Taylor must meet proof requirements for punitive damages under § 27-1-221, MCA. We disagree. As a specific statute, § 70-24-411, MCA, takes priority over any general statute that is inconsistent with it. Section 1-2-102, MCA. See also, Sage v. Rogers (1993), 257 Mont. 229, 848 P.2d 1034. Therefore, § 70-24-411, MCA, takes priority over § 27-1-221, MCA. Accordingly, Taylor had the option to choose between three months’ periodic rent or treble damages, whichever was greater. See § 70-24-411, MCA. Taylor requested three months’ periodic rent, and the District Court properly awarded it.
Second, Whalen argues that the District Court’s awarding possession of the apartment to Taylor is an inappropriate remedy in this case. Whalen presently occupies the apartment. Whalen claims that if Taylor gains possession then Whalen will promptly give Taylor thirty days’ notice of termination of the tenancy as allowed under MRLTA. Again, notwithstanding this line of reasoning, § 70-24-411, MCA, allows a wrongfully excluded tenant to choose possession or termination of a rental agreement in addition to money damages. Under the facts and circumstances of this case, the District Court did not commit reversible error by awarding a remedy which the statute specifically authorizes.
Based on the foregoing, we affirm the District Court on this issue and hold that Whalen is liable under § 70-24-411, MCA, and that the District Court properly awarded Taylor both remedies under § 70-24-411, MCA.
Finally, after the District Court’s Judgment of November 1, 1995, Whalen filed a homestead exemption on November 6,1995, for his property because he had taken up residence in the apartment. Whalen argues that this filing should exempt him from the specific remedies awarded to Taylor under § 70-24-411, MCA. However, Whalen cites no authority for his proposition. Therefore, we decline to further address his argument absent his setting forth persuasive legal authority on which to base such a decision.
2. Did Whalen violate §§ 70-24-202 and 70-24-403, MCA, by including a prohibited provision in the rental agreement?
We review a district court’s conclusion of law to determine if the court’s interpretation of the law is correct. Solem, 906 P.2d at 212.
The rental agreement that Whalen selected and used contains the following provision:
Acceptance of a refund of all or a portion of the deposit by Tenant shall constitute a full and final release of Landlord from any claims of Tenant of any nature whatsoever.
In Solem, we considered an identical rental agreement provision and held that such language is prohibited and violates § 70-24-202( 1), MCA, and we affirmed the District Court’s award of damages pursuant to § 70-24-403(2), MCA. Solem, 906 P.2d at 209. Clearly, § 70-24-202(1), MCA, makes unlawful any agreement to waive or forego rights or remedies under MRLTA. Further, § 70-24-403(2), MCA, provides that if a party purposely uses a rental agreement containing provisions known by him to be prohibited, then the other party may recover, in addition to his actual damages, an amount up to three months’ periodic rent.
In the case at bar, it is clear that the rental agreement provision in question is prohibited and violates § 70-24-202(1), MCA. Solem, 906 P.2d at 213-14. It is equally clear that Whalen purposely used a rental agreement with prohibited provisions and he may be liable for an amount up to three months’ periodic rent. Section 70-24-403(2), MCA. Here, Whalen is not only a landlord, but a practicing attorney and former legislator. He had used this rental agreement for ten years, knew its contents and personally chose to use it when he rented to Taylor. Further, he intended the rental agreement to be legal and enforceable, citing its provisions in his suit against Taylor. Moreover, Taylor had no legal counsel when he signed the agreement and no way to determine whether or not the agreement was legal. Therefore, the District Court erred in finding that Whalen did not believe that the rental agreement contained any illegal or unlawful provisions.
Whalen violated MRLTAby unlawfully excluding Taylor from his apartment and by using a rental agreement that contained a prohibited provision. Both of these violations call for treble damage awards. See §§ 70-24-411 and 70-24-403, MCA. However, two separate awards of treble damages should not be imposed upon Whalen absent a clear legislative direction to that effect. Under these circumstances, in the absence of any clear legislative mandate for the cumulative imposition of penalties, we conclude that the provisions of MRLTA are adequately served when only one treble damage award is imposed, despite the two separate violations of the Act.
On this issue, we remand for further proceedings consistent with this opinion and for entry of judgment for treble damages in favor of Taylor.
3. Is Taylor entitled to attorney fees under § 70-24-442, MCA, because he prevailed at every stage of the litigation?
A District Court may award reasonable attorney fees, along with costs and necessary disbursements, to the prevailing party in whose favor final judgment is rendered. Section 70-24-442, MCA. The District Court found that Taylor prevailed on all claims except the issue concerning the prohibited provision in the rental agreement, and thus, the court did not award Taylor attorney fees. Absent an abuse of the lower court’s discretion, this Court will not reverse the lower court’s decision concerning attorney fees. Sage, 848 P.2d at 1042.
However, on appeal, we have held that the provision in the rental agreement discussed in Issue 2 is unlawful, and the District Court must enter judgment on this issue in favor of Taylor. Consequently, Taylor is now the prevailing party on all issues, and, in the court’s discretion, may be entitled to an award of attorney fees, costs and necessary disbursements. See § 70-24-442, MCA.
Whalen debates the appropriateness of awarding attorney fees to legal services or pro bono attorneys. However, the propriety of these awards has already been decided. See In re Marriage of Malquist (1994), 266 Mont. 447, 880 P.2d 1357 (wherein we held that legal services and pro bono attorneys were eligible under § 40-4-110, MCA, to receive awards of attorney fees). Just as in Malquist, no reason exists here to exclude legal service attorneys from an award of attorney fees. First, under § 70-24-442, MCA, the District Court is given discretion to award attorney fees in landlord/tenant cases to a prevailing party. Second, and more broadly, in order to provide equal access to justice for all, the award of attorney fees to individuals represented by legal services or pro bono attorneys is required. As we stated in Malquist:
Presumably, if Montana Legal Services Association and pro bono attorneys can recoup from the non-indigent litigant those fees and costs for which he or she would, otherwise, be liable under the statute, that organization and those attorneys will be financially better able to provide more legal services to the increasing numbers of indigent litigants who need such services. Moreover, non-indigent litigants who might be encouraged to simply “run up the other party’s bill” with vexatious conduct and frivolous court proceedings, might be less inclined to do so knowing that the court has the statutory discretion to award the indigent party’s attorney fees and costs against the offending party.
Malquist, 880 P.2d at 1364.
Based on the same policy reasons as set forth in Malquist, we conclude that an attorney's status does not affect eligibility for attorney fee awards under § 70-24-442, MCA. Accordingly, we remand this issue of attorney fees to the District Court for reconsideration and further proceedings consistent with this opinion.
In so holding, we acknowledge that the United States Congress has prohibited the Legal Services Corporation from providing financial assistance to any person or entity that claims, or collects and retains, attorney fees. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1996, Pub. L. No. 104-134, § 504(a)(13), 110 Stat. 1321,1321-53, -55 (1996) (hereinafter “the Act”). We note that this prohibition only applies to claims for which a person or entity begins to provide legal assistance on or after April 26, 1996, the date of enactment of the Act. Section 508(b)(3), 110 Stat. at 1321-57 to -58. In this case on appeal, Montana Legal Services began providing legal assistance to Taylor in June 1995, well before the enactment of the Act. Therefore, in this case, we conclude that the Act would not prohibit an award of attorney fees to Montana Legal Services should the District Court exercise its discretion to make such an award.
4. Did the District Court properly expedite discovery matters and the trial schedule pursuant to § 70-24-427, MCA?
We review a district court’s ruling concerning granting or denying discovery for abuse of discretion. In re Marriage of Smith (1995), 270 Mont. 263, 271, 891 P.2d 522, 527. A district court is in a better position than this Court to supervise the day to day operations of pretrial discovery. Smith, 891 P.2d at 527.
Whalen initiated this action and now contends that the District Court committed reversible error when it failed to allow proper time for discovery and failed to issue sanctions against Taylor for requesting an expedited hearing. We disagree. Whalen sought possession of the apartment. Claims for possession of property under MRLTA are controlled by § 70-24-427, MCA, which mandates an expedited trial schedule as follows:
70-24-427. Landlord’s remedies after termination — action for possession. (1) If the rental agreement is terminated, the landlord has a claim for possession and for rent and a separate claim for actual damages for any breach of the rental agreement.
(2) An action filed pursuant to subsection (1) in a court must be heard within 20 days after the tenant’s appearance or the answer date stated in the summons. If the action is appealed to the district court, the hearing must be held within 20 days after the case is transmitted to the district court.
(3) The landlord and tenant may stipulate to a continuance of the hearing beyond the time limit in subsection (2) without the necessity of an undertaking.
(4) In a landlord’s action for possession filed pursuant to subsection (1), the court shall rule on the action within 5 days after the hearing.
Whalen insists that § 70-24-427, MCA, provides a landlord, not a tenant, the right to an expedited trial. Therefore, he contends that Taylor perpetrated sanctionable conduct by requesting an expedited hearing. This argument is not persuasive. An action for possession must be heard within 20 days under the mandate of § 70-24-427(2), MCA, unless both the landlord and tenant stipulate to a continuance, as allowed by § 70-24-427(3), MCA. Taylor’s attorney requested that the District Court expedite the trial for possession as required by § 70-24-427(2), MCA. Taylor and his attorney should not be sanctioned for demanding precisely what the statute authorizes. Therefore, the District Court was correct in not imposing sanctions.
Further, it is within the District Court’s discretion to mate discovery rulings. Whalen filed a Notice of Appeal to District Court on September 13, 1995. However, because both parties moved to substitute two different judges, it was not until September 28, 1995, that the case was assigned. Further, due to the court’s full calendar, the trial was set more than 20 days after the case was transmitted. Despite these delays, the District Court ordered trial set for October 27, 1995. Whalen did not serve discovery requests on Taylor until October 17, 1995. In an effort to expedite this claim for possession, the District Court ordered that Taylor answer Whalen’s discovery requests by October 23,1995. The District Court made these rulings in compliance with § 70-24-427, MCA. Therefore, we hold that the District Court did not abuse its discretion, but, rather, that the District Court properly limited the time and extent of discovery to expedite this claim for possession.
We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and LEAPHART concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
Marlen G. Savik and Jack Piippo (Savik and Piippo) appeal from the jury verdict of the Fourth Judicial District Court, Missoula County, denying their request for damages for breach of contract. We affirm in part, reverse in part and remand.
For purposes of this decision, this Court will discuss only the following dispositive issues:
1) Did the District Court err in dismissing Savik and Piippo’s breach of contract claim?
2) Did the District Court err in instructing the jury on parol evidence when Savik and Piippo sought recovery under a theory of fraudulent inducement?
BACKGROUND
In 1983, Savik and Piippo organized Touch America, Inc., a long distance telephone company with services in Montana. In May of 1990, Savik and Piippo were the sole stockholders and principal officers of Touch America and were in control of all of its operations. Entech is a Montana corporation that has owned and operated various non-utility businesses including businesses involved in communications technology. On May 15, 1990, Savik and Piippo entered into a written contract with Entech for the sale of all of the assets of Touch America. During negotiations and following the negotiation period, Entech’s Vice President, Michael J. Meldahl (Meldahl) was the chief negotiator for Entech. Following negotiations, Entech pur chased all of Touch America’s assets pursuant to a written sale agreement.
The Sale Agreement (Agreement) set forth a variable sale price consisting of a $1.15 million down payment, plus a distribution to Savik and Piippo of twenty percent of the net profits of the business generated during the first five years after the sale. The net profits distribution had a maximum payment of $783,545.
The Agreement also required that Savik and Piippo be permitted to work for Entech for three years after the sale of Touch America. The Agreement stated that Savik and Piippo would “be entitled to those benefits that are afforded to other employees under Entech’s employment policies.” In accordance with the Agreement, Savik and Piippo worked for Entech for three years prior to their termination.
In 1993, Savik and Piippo brought an action in District Court claiming damages based on two theories. First, Savik and Piippo claimed that Entech breached the Agreement by terminating their employment after three years. Second, Savik and Piippo claimed that they were fraudulently induced into entering the Agreement. The District Court granted summary judgment dismissing Savik and Piippo’s claims of breach of contract finding that the express terms set forth in the contract were clear and the parol evidence rule barred consideration of the oral communication between Meldahl and Savik and Piippo. Therefore, the only remaining issue before the District Court was whether Entech fraudulently induced Savik and Piippo into entering the Agreement.
At trial, Savik and Piippo argued that the employment clause, along with various representations by Meldahl, created the impression that they would become permanent Entech employees. Meldahl’s alleged representations are the basis of the fraudulent inducement claims made by Savik and Piippo. Following a jury verdict in favor of Entech, Savik and Piippo brought this appeal challenging, among other things, the District Court’s decision to dismiss their breach of contract claim as well as jury instructions regarding parol evidence.
DISCUSSION
1) Did the District Court err in dismissing Savik and Piippo’s breach of contract claim?
Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluations as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.
Savik and Piippo’s claims of breach of contract stem from their interpretation of the intent of paragraph 4.13 of the Agreement. That paragraph provided in relevant part:
Subject to satisfying Entech’s hiring policies, Entech shall retain Messrs. Savik and Piippo for terms of three (3) years each at annual initial salaries of $60,000 each. Messrs. Savik and Piippo will be entitled to those benefits that are afforded to other employees under Entech’s employment policies [.]
Savik and Piippo maintain that the “benefits” available to them as Entech employees included not only vacation, health insurance, and pension, but also permanent employment terminable only for good cause. Savik and Piippo based their interpretation of the contract on oral representations that they claim were made to them by Meldahl. They also claim that the term “benefits,” as used in the contract, was ambiguous and thus parol evidence was needed to explain what the parties intended in using that term.
The parol evidence rule in Montana has been codified under §§ 28-2-904, and 28-2-905, MCA. Section 28-2-904, MCA, explains, “[t]he execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” Section 28-2-905, MCA, further provides that when an agreement has been reduced to writing by the parties, there can be no evidence of the terms of the agreement other than the contents of the writing except when a mistake or imperfection of the writing is claimed or when the validity of the agreement is the fact in dispute. In their claim for breach of contract, Savik and Piippo contend that the term “benefits” was ambiguous and thus the court should have allowed parol evidence as to statements made to them by Meldahl which led them to believe that “benefits” included permanent employment.
This Court has held that where the terms of the contract are ambiguous and uncertain, evidence of attending circumstances is admissible. Molerway Freight Lines v. Rite-Line Transp. (1995), 273 Mont. 95, 100, 902 P.2d 9, 12. In Monte Vista Co. v. Anaconda Co. (1988), 231 Mont. 522, 528-29, 755 P.2d 1358, 1362, this Court explained:
An ambiguity exists when a contract is subject to two interpretations and parol testimony can be used to determine what the parties intended. [Citations omitted.] However, intent of the parties is only looked to when the agreement in issue is not clear on its face. [Citation omitted.]
In the present case, the District Court gave the following rationale for granting summary judgment:
The express language of that provision [4.13] clearly establishes a three year term of employment. Plaintiffs contend that the intent of the provision was to bind the individual Plaintiffs to a minimum of three years, and that the language in the provision entitling Plaintiffs to “those benefits that are afforded to other employees under Entech’s employment policies” include the “benefit” of permanent employment absent good cause for firing Plaintiffs. This Court does not find that the provision language is ambiguous and therefore, there is no need to look to the parties’intent, and in any event, such interpretation would require adding language to the agreement which would contradict the express three year term in violation of the parol evidence rule.
After reviewing the record and the Agreement, we agree with the District Court that the provision regarding “benefits” and three years of employment was clear and unambiguous and did not include permanent employment. Our decision in Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 815 P.2d 1135, is on point. In that case, Sherrodd had contracted to perform certain earth work for Morrison-Knudsen. The terms of the written contract provided that all of the earthwork would be performed for a lump sum of $97,500. Sherrodd, 815 P.2d at 1136. After completion of the work, Sherrodd claimed that it was owed more money than the $97,500 because it had been pressured to execute the contract and that it had been told that a deal would be worked out wherein Sherrodd would be paid more than the sum provided for in the contract. Sherrodd, 815 P.2d at 1136. The district court granted summary judgment to Morrison-Knudsen, holding that the parol evidence rule precluded Sherrodd from relying upon oral representations which were not incorporated into the written contract. This Court affirmed and held that Sherrodd’s contention that the $97,500 did not cover the entire job contradicted the terms of the written agreement. Sherrodd, 815 P.2d at 1137. In applying the parol evidence rule, we concluded:
the compensation of Sherrodd is governed exclusively by the written contract and that Sherrodd’s claims are barred under the parol evidence rule. We hold that the District Court did not err in granting summary judgment for defendants.
Sherrodd, 815 P.2d at 1137. As with Sherrodd’s attempt to vary the amount of compensation specified, Savik and Piippo’s reliance on oral representations that would vary the expressed term of employment was barred by the parol evidence rule. Accordingly, the District Court was correct in granting summary judgment and dismissing the breach of contract claim.
2) Did the District Court err in instructing the jury on parol evidence when Savik and Piippo sought recovery under a theory of fraudulent inducement?
The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. A district court has broad discretion in instructing the jury and we will not reverse the court on the basis of alleged instructional errors absent an abuse of discretion. Werre v. David (1996), 275 Mont.
376, 391-93, 913 P.2d 625, 635. Further, when we examine whether jury instructions were properly given or refused, we consider the challenged instructions in their entirety, the evidence at trial and other instructions given by the court. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104, 116, 902 P.2d 520, 527.
When a party alleges fraud in the inducement, it is incumbent upon the district court to admit parol evidence on the question. Dew v. Dower (1993), 258 Mont. 114, 120, 852 P.2d 549, 552; Dodds v. Gibson Products Company of Western Montana (1979), 181 Mont. 373, 377, 593 P.2d 1022, 1024. For a jury to adequately consider a party’s claim of fraudulent inducement, it is critical that it consider evidence outside of the written agreement as such evidence goes to the heart of the claim.
In the instant case, the District Court gave the following jury instructions over Savik and Piippo’s objection:
[No. 8] The execution of a contract in writing, whether the law requires it to be or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.
[No. 10] A contract is to be construed according to the intention of the parties at the time of contracting. If the contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.
These instructions were given to the jury despite the fact that Savik and Piippo’s contract claim had been dismissed and, thereafter, they were advancing only a claim of fraud in the inducement. In effect, these instructions kept the jury from considering the evidence Savik and Piippo brought forward in support of their claim of fraudulent inducement.
When fraud is alleged, parol evidence may be considered by the jury. Section 28-2-905(2) MCA. See also Flemmer v. Ming (1980), 190 Mont. 403, 621 P.2d 1038. Limiting a jury’s consideration of evidence to a written agreement creates an illogical requirement that an alleged fraud leading to the creation of the contract be demonstrated by a writing. Webcor Electronics v. Home Electronics (1988), 231 Mont. 377, 382, 754 P.2d 491, 494. This Court has previously held that, notwithstanding the parol evidence rule, fraud in the inducement is provable by parol evidence. Dew, 852 P.2d at 552; Dodds, Mersy v. Gibson Products Co. (1979), 181 Mont. 373, 377, 593 P.2d 1022, 1024; Goggans v. Winkley (1970), 154 Mont. 451, 459, 465 P.2d 326, 330.
In the instant case, the District Court’s instructions regarding parol evidence effectively precluded the jury from considering precontract conversations between Meldahl and Savik and Piippo. Since Savik and Piippo’s claim of fraud in the inducement was based on pre-contract representations by Meldahl, the communications between Savik and Piippo and Meldahl were crucial to the jury’s consideration.
Having reviewed the jury instructions in their entirety, we hold that the challenged instructions effectively precluded the jury from considering communications between the parties outside of the written agreement. Evidence of communication between the parties was crucial to Savik and Piippo’s claims of fraudulent inducement. We hold that the District Court abused its discretion by instructing the jury not to consider parol evidence in a claim of fraudulent inducement.
Accordingly, we affirm in part, reverse in part and remand for a new trial on the issue of fraudulent inducement.
JUSTICES HUNT, NELSON, TRIEWEILER and ERDMANN concur.
|
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The respondent, James Abrahamson, filed a motion in the District Court of the First Judicial District in Lewis and Clark County, pursuant to § 40-4-219(l)(f), MCA, to modify primary residential custody of the parties’ child, Jordin. The District Court granted James’ motion. The appellant, Michelle Abrahamson, appeals the District Court’s judgment. We affirm the order and judgment of the District Court.
The issue on appeal is whether the District Court erred when it granted James Abrahamson’s motion to modify custody of the parties’ child.
FACTUAL BACKGROUND
In December 1992, the parties’ marriage was dissolved by decree of the District Court. Incorporated into that decree is a Custody, Support, and Property Settlement Agreement. The agreement granted the parties joint legal custody of Jordin, the sole child of the marriage, designated Michelle as the primary residential custodian, and provided James with visitation rights.
After the dissolution, both parties remained in Helena. However, in January 1995, Michelle told James that she might be moving to Salt Lake City, Utah. James filed a motion with the District Court, in which he moved for a modification of custody and a restraining order to prevent Michelle from leaving Helena before the matter could be heard by the District Court. Subsequently, Michelle filed her objections to James’ motions, and her own motion to amend custody and visitation.
In March 1995, Michelle provided James with formal notice of her intent to change Jordin’s residence from Montana to Utah. In an affidavit dated February 3, 1995, she stated that the purpose of her move was to attend the University of Utah and pursue a career in the Federal Bureau of Investigation. In a second affidavit, dated April 28, 1995, she stated that her purpose was to enroll in a criminal justice course at Salt Lake City Community College. She also stated that, in order to qualify for the in-state tuition rate and certain higher education grants, she was required to become a resident of Utah no later than June 1,1995. However, after Michelle moved to Utah, she instead enrolled in the University of Phoenix Business School in Salt Lake City. At the time of the hearing, she was not attending school, and it is disputed as to whether she ever did, in fact, attend classes.
The parties jointly submitted an order to the District Court which allowed Michelle to move to Utah, and provided that Donna Hale, a licensed clinical social worker, would conduct a custody evaluation and prepare a custody report.
The District Court heard the motion to modify custody on September 21, 1995.
At the hearing, James sought to establish that Michelle leads an unstable life and therefore, that Jordin’s best interest would be served by a modification of the custody arrangement. James testified about a number of subjects: his work schedule and how it would allow him to spend time with Jordin; his relationship with Jordin; his strengths as a parent; his ability and desire to serve as the primary residential custodian; his relationship with Michelle since the dissolution; and the family support network Jordin has in Helena. He expressed concern about Michelle’s ability to effectively parent Jordin, as well as her commitment to her role as a parent. He also responded to several allegations made by Michelle, including his possession of pornographic materials, his relationships with several women, and the fact that he had taken Jordin into the mens’ locker room at the athletic club to shower.
Denise Blankenship and Kristi Rivenes, both of whom were Mends of Michelle while she lived in Helena, testified that Michelle had been, on occasion, inadequate as a parent. Blankenship described Michelle as being inattentive to Jordin’s needs, and impatient with Jordin on several occasions. Rivenes testified that Michelle was an irresponsible parent because she “never thought of Jordin first.”
Michelle presented evidence to support her contention that a custody modification would not be in Jordin’s best interest. Paula Fenton, Jennifer Lamach, Roweena Meehan, Debbie Stanton, and Treanna Olson all testified that Michelle is a good parent, and that she has a strong relationship with Jordin. Karl Lieb, Michelle’s boyMend, also testified on her behalf. He stated that he has developed a strong relationship with Jordin, and that Jordin was doing well in Utah. Michelle’s testimony described her relationship with Jordin; her abilities as a parent; her reasons for moving to Utah; her work schedule; her availability as a parent; and her relationship with James since the divorce. Michelle asserted that both she and Jordin were doing extremely well since moving to Utah, and that a modification of custody would not be in Jordin’s best interest.
Throughout the hearing, there was a significant amount of testimony relating to Michelle’s purchase of a tanning salon in Salt Lake City. Michelle had engaged in negotiations for the purchase of one salon, but ultimately purchased another. Denise Robbins testified that Michelle had sought to purchase her salon, but that Michelle breached the contract. Furthermore, Robbins testified that Michelle planned to keep her day job and work at the salon during nights and weekends. Michelle disputed those claims, and asserted that the evidence regarding the purchase of the tanning salon was irrelevant to Jordin’s best interest. James asserted, however, that the evidence was relevant, and established that Michelle lacked stability. According to James, the evidence also contradicted Michelle’s stated purpose for moving to Utah. And finally, it established that her work schedule would not allow her to be an effective and available parent.
Donna Hale, a licensed clinical social worker, testified regarding her custody evaluation. Her report concluded that both Michelle and James genuinely love Jordin, and that there was no evidence of endangerment with either parent. Ultimately, her report recommended that, while both parents should continue to share joint legal custody, Michelle should be the primary residential custodian.
The District Court granted James’ motion to modify custody, designated James as the primary residential custodian, ordered that the parties should retain joint legal custody, and established a visitation schedule.
Subsequent to Michelle’s appeal from that judgment, James filed with this Court a motion to strike materials and references not before the District Court, and a request for sanctions. In support of that motion, James alleges that “Michelle’s actions in placing before this Court materials that were not part of the record of what occurred before the district court violate Rule 9, M.R.App.P.” It is well established that this Court will not consider any evidence not contained in the record on appeal. Johnson v. Killingsworth (1995), 271 Mont. 1, 3, 894 P.2d 272, 273. Therefore, James’ motion is granted, and the portion of Michelle’s reply brief that refers to James’ operation of Jordin Rivfer Products is stricken. James’ request for sanctions is denied.
DISCUSSION
Did the District Court err when it granted James’ motion to modify custody?
When we review a District Court’s findings related to a modification of custody, the standard of review is whether those findings are clearly erroneous. In re Marriage of Elser (1995), 271 Mont. 265, 270, 895 P.2d 619, 622. When findings upon which a decision is predicated are not clearly erroneous, we will reverse a District Court’s decision to modify custody only where an abuse of discretion is clearly demonstrated. Elser, 271 Mont, at 270, 895 P.2d at 622.
On appeal, Michelle asserts that the District Court erred when it: (1) failed to adopt the recommendations made by Donna Hale in her custody report; (2) misapprehended the effect of certain proffered evidence; and (3) failed to apply the law as set forth in § 40-4-212(3)(a), MCA.
Donna Hale’s custody report made the following recommendations: the parties should share joint legal custody; Michelle, as the primary residential custodian, should have custody of Jordin during the school year; and James should have visitation rights and custody of Jordin during the summer. The District Court, however, did not adopt the custody report’s recommendations. Instead, it modified custody and designated James as the primary residential custodian. Michelle asserts that the District Court abused its discretion when it failed to adopt the custody report’s recommendations.
Section 40-4-215, MCA, authorizes a district court to order an investigation and report concerning custodial arrangements for a child. In Marriage ofMoseman, we interpreted that statute and held that a district court is not bound by a court-ordered custody investigation. In re Marriage of Moseman (1992), 253 Mont. 28, 31, 830 P.2d 1304, 1306. After a review of our prior cases, we determined that they “require that a specific finding of fact is required regarding a custody investigation ordered by the court.” Marriage of Moseman, 253 Mont, at 31, 830 P.2d at 1306. An abuse of discretion will be found if “we are not able to determine if the District Court even considered the report.” Marriage of Moseman, 253 Mont, at 31, 830 P.2d at 1306.
In this case, the District Court’s findings of fact and conclusions of law refer to the custody report four times and recite its recommendations verbatim. Furthermore, when it rejected the custody report’s recommendations and granted the motion to modify custody, the District Court specifically found that Michelle was not “forthright with Donna Hale or the Court.” The District Court was not required to adopt the custody report. It was only required to consider the report when making its custody determination, and to make the required specific finding of fact. We conclude that the District Court fulfilled its obligations, and hold that it did not abuse its discretion when it failed to adopt Hale’s custody report.
Michelle next asserts that the District Court abused its discretion when it misapprehended the effect of certain proffered evidence.
At the outset of our analysis, we note that “[t]he trial court is in a better position than this Court to resolve child custody issues. The district court’s decision is presumed correct and will be upheld unless a clear abuse of discretion is shown.” In re Custody of J.M.D. (1993), 259 Mont. 468, 473, 857 P.2d 708, 712.
At the hearing, both of the parties and a number of witnesses, including Donna Hale, testified at great length. Virtually all of the testimony was contested. Michelle attempted to establish that she is a good parent. She also challenged James’ ability to parent, and defended both her decision to move to Utah and her work schedule. James, on the other hand, produced evidence establishing that Michelle’s life-style is unstable and impulsive. His witnesses testified that Michelle is inattentive to Jordin’s needs, is unwilling to place Jordin’s interests ahead of her own, and is often impatient with Jordin. The evidence related to Michelle’s purchase of the tanning salon suggested that her work schedule would be unpredictable, and could include nights and weekends. Furthermore, her work hours at the tanning salon could be in addition to those required by her day job. The District Court made an independent determination that Michelle had not been forthright with Donna Hale regarding the tanning salon and her work schedule, nor with the District Court regarding her reasons for moving to Utah.
Thus, ultimately, the District Court was faced with conflicting accounts, and forced to resolve a myriad of factual disputes. Based on all of the evidence and testimony presented at the hearing, the District Court determined that James’ situation is more stable than Michelle’s, and therefore, that James should have custody of Jordin during the school year. It is well established that issues of evidentiary weight and witness credibility are within the province of the trial court, and that “we will not substitute our judgment for that of the District Court.” In re Adoption of J.M.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969. We have recognized that when the record contains conflicting evidence, “[i]t is the function of the District Court to resolve such conflicts.” In re Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216.
Based on our review of the record, we conclude that the District Court’s findings are supported by substantial evidence and were not clearly erroneous. Furthermore, we conclude that when it made its determination that Jordin’s best interest required a modification of custody, the District Court did not abuse its discretion.
Finally, Michelle alleges that the District Court failed to apply § 40-4-212(3)(a), MCA, which states:
(3) The following are rebuttable presumptions and apply unless contrary to the best interest of the child:
(a). Custody should be granted to the parent who has provided most of the primary care during the child’s life.
She contends that the District Court committed a fundamental error in its conclusion's of law when it failed to apply or mention § 40-4-212(3)(a), MCA.
Contrary to Michelle’s assertions, we conclude that the District Court did, in essence, apply § 40-4-212(3)(a), MCA. Despite its failure to specifically mention the statute, the District Court found that the presumption had, in fact, been rebutted. Michelle’s reliance on the District Court’s finding that both parents are fit to have custody is misplaced. Section 40-4-212(3)(a), MCA, does not require the District Court to find that one parent is unfit to have custody. Rather, it establishes a presumption in favor of the preexisting custodial parent, but only a rebuttable presumption. And as we recognized previously in this opinion, there was substantial evidence upon which the District Court based its decision to modify custody. The District Court found that Jordin’s best interest required a modification of custody and the designation of James as the primary residential custodian. It necessarily and logically follows that a failure to modify custody and the retention of Michelle as the primary residential custodian would not be in Jordin’s best interest. We conclude that the District Court, based on all of the evidence, determined that the statutory presumption had been adequately rebutted, and that the District Court’s failure to explicitly mention § 40-4-212(3)(a), MCA, constitutes, at most, harmless error. See Rule 61, M.R.Civ.P.
Our decision today does not render § 40-4-212(3)(a), MCA, meaningless. District courts should be cognizant of § 40-4-212(3)(a), MCA, and should take appropriate steps to ensure that it is, in all applicable cases, adequately considered. We hold only that, based on substantial evidence in this case, the statutory presumption was adequately rebutted, and the District Court’s failure to specifically mention § 40-4-212(3)(a), MCA, does not constitute reversible error.
The judgment of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, GRAY and LEAPHART concur.
|
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
On August 21, 1991, Eagle Watch Investments, Inc., filed a complaint in the District Court for the Fourteenth Judicial District in Golden Valley County in which it alleged that Alex and Trudy Smith had breached their lease agreement with Eagle Watch, and in which it sought damages for that breach. Following a nonjury trial, the District Court concluded that the Smiths owed Eagle Watch $509.56 per year for a three-year period of the lease and $20,000 per year during the time of their holdover tenancy. The Smiths appealed the District Court’s decision and Eagle Watch cross-appealed. We affirm in part and reverse in part the judgment of the District Court.
We address three issues on appeal:
1. Did the District Court err when it concluded that the Smiths owed Eagle Watch lease payments of $509.56 per year for the period of the parties’ lease from 1987-1989?
2. Did the District Court err when it concluded that the Smiths were holdover tenants for the period of time from 1990-1996?
3. Did the District Court err when it concluded that the Smiths, as holdover tenants, owed Eagle Watch lease payments of $20,000 per year from 1990-1996?
FACTUAL BACKGROUND
Eagle Watch Investments, Inc., owns a tract of land in Golden Valley County which consists of approximately 1569 acres of farmland and 231 acres of grassland. On September 30,1984, Eagle Watch and Alex and Trudy Smith executed a farm lease agreement pertaining to that land. The lease agreement required annual cash payments of $20,000 per year ($12.75 per acre) beginning October 1, 1985, for a term of three years and provided for an optional two-year extension of the agreement and an option to purchase the land. The Smiths made the annual payments pursuant to the lease agreement for the first two years.
In the spring of 1986, Eagle Watch and the Smiths agreed to enroll the property into the Conservation Reserve Program (CRP). In July and December 1986, the Commodity Credit Corporation (CCC) accepted approximately 1502 acres of the parties’ leased land into the program. Pursuant to the specific CRP contracts, the CCC agreed to pay the parties $49,975.49 per year. The Smiths received sixty-one percent ($30,485.05) and Eagle Watch received thirty-nine percent ($19,490.44) of the payment. In return, the parties agreed to give up any summer fallow that they had on the property, cultivate and spray as necessary, seed the property to a grass or grass and legume stand, control noxious weeds and insects, and establish and maintain a forage stand for ten years. The parties agreed that the Smiths would be responsible for all costs of seeding and grass establishment.
In November 1986, after the parties had entered into the CRP contracts but before the CCC had made its first payment, Eagle Watch informed the Smiths that it expected them to continue to pay the $20,000 annual lease payment in addition to the $19,490 which Eagle Watch was entitled to receive from the CRP contracts. Eagle Watch also informed the Smiths that it intended to terminate the lease agreement no later than 1989 and remove the Smiths from the land and the CRP contracts at that time. In response to Eagle Watch’s demands, the Smiths attempted to formally modify the lease agreement with two addenda agreements. The first addendum sought to extend the lease term from three years with a two-year extension to the ten-year term of the CRP contracts. The second addendum would have modified the agreement to substitute Eagle Watch’s share of the CRP payments for the Smiths’ annual $20,000 lease payment obligation. Eagle Watch did not sign either agreement.
In April 1987, the Smiths seeded the property in accordance with the CRP contract specifications. The Smiths’total seeding costs were $78,488.65, for which they were reimbursed by the Agricultural Stabilization and Conservation Service (ASCS) in the amount of $33,997.00. The ASCS certified the grass stands in September 1990.
In July 1987, the Smiths exercised the two-year lease option and extended the lease through September 30, 1989. At that time, the Smiths believed that their annual lease payment would be covered by the CCC’s $19,491 annual payment to Eagle Watch. Therefore, the Smiths did not tender their annual $20,000 lease payment to Eagle Watch on October 1,1987. On December 18, 1987, Eagle Watch sent the Smiths a notice of default for nonpayment. On January 11,1988, the Smiths tendered a check in the amount of $509.56 to Eagle Watch with the notation “Balance of 1987 lease payment.” The Smiths contended that the $20,000 payment required by the lease agreement was satisfied by combining their $509.56 check and Eagle Watch’s $19,490.44 CRP payment.
The Smiths sent checks in the amounts of $509.56 to Eagle Watch on October 20, 1988; on October 3, 1989; on October 12, 1990; on September 25, 1991; and on October 1, 1992. The Smiths contended that each check represented the balance due for their lease payment after Eagle Watch was paid its share of CRP proceeds. Eagle Watch refused all such payments.
Eagle Watch first attempted to resolve the dispute with the Smiths through the ASCS but was advised that ASCS would not assume jurisdiction of this dispute. Therefore, on August 21, 1991, Eagle Watch filed a complaint in the Fourteenth Judicial District Court to recover payments from the Smiths pursuant to the written agreement. Eagle Watch contended that the Smiths owed it $20,000 annually for the three years of the parties’ lease and $20,000 annually for the years the Smiths remained on the land as holdover tenants. The Smiths contended, however, that the CRP contracts modified the lease agreement and that they owed Eagle Watch only $509.56 annually for the ten-year period of the CRP contracts.
Following a nonjury trial, the District Court decided that the CRP agreement did not extinguish or modify the parties’ lease agreement. The District Court concluded that the parties had an equitable agreement for the years 1987-1989 pursuant to which the Smiths seeded the land to grass, made lease payments of $509.56 per year, and collected approximately $30,000 per year from the CRP. The court further concluded that during this three-year lease period, Eagle Watch received its $20,000 per year lease payment from a combination of its share of the annual CRP payment and the Smiths’ annual payment of $509.56. Finally, the District Court concluded that the Smiths were holdover tenants after their lease expired and during the seven years remaining on the CRP contracts, and that the Smiths were therefore required to pay Eagle Watch $20,000 annually in addition to the CRP payments that Eagle Watch received during those years.
STANDARD OF REVIEW
On appeal, Eagle Watch maintains that the District Court’s order is equitable in nature and thus requires a more deferential standard of review. In particular, Eagle Watch cites § 3-2-204(5), MCA, as the applicable standard of review. That section provides:
In equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless for good cause a new trial or the taking of further evidence in the court below be ordered. Nothing herein shall be construed to abridge in any manner the powers of the supreme court in other cases.
This Court interpreted the standard of review for equity cases in Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 282-83, 742 P.2d 456, 461:
[S]ection 3-2-204(5), MCA ... does not entitle [the appellant] to a de novo review of the evidence. This Court’s function in reviewing findings of fact in a civil action tried by a district court without a jury is not to substitute its judgment in place of the trier of facts but rather it is confined to determining whether the findings of fact are clearly erroneous. Rule 52(a), M.R.Civ.P. Although conflicts may exist in the evidence presented, it is the duty and function of the trial judge to resolve such conflicts. His findings will not be disturbed on appeal where they are based on substantial though conflicting evidence.
Further, there is a presumption when this Court reviews the evidence, that the trial court’s judgment is correct, and that any conflicting evidence must be resolved in favor of the ruling.
Not only must conflicting evidence be resolved in favor of the District Court’s ruling, but [the appellant] must shoulder the burden of proving that the evidence preponderates against the finding.
(Citations omitted.)
It is well established, however, that a district court may only accept jurisdiction in equity when no statutory or legal remedy is available. Jeffries Coal Co. v. Industrial Accident Board (1952), 126 Mont. 411, 413, 252 P.2d 1046, 1047 (citing Epletveit v. Solberg (1946), 119 Mont. 45, 169 P.2d 722; Meyer v. Lemley (1929), 86 Mont. 83, 282 P. 268; Philbrick v. American Bank & Trust Co. (1920), 58 Mont. 376, 193 P. 59). In this case, Montana’s landlord-tenant and contract provisions provide a positive statutory remedy; therefore, the District Court could not invoke equitable jurisdiction and was required to proceed pursuant to those statutes. See Peitzman v. Seidman (Pa. Super. Ct. 1981), 427 A.2d 196, 198 (holding that where an adequate remedy was provided by Pennsylvania’s Landlord and Tenant Act, jurisdiction of a court of equity could not be invoked). This Court cannot, therefore, look upon the District Court’s order as an equitable ruling and cannot invoke the more deferential standard of review set forth in Meridian Minerals.
Instead, our review of the district court’s order is two-fold. First, we review the district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. Second, we review the district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
ISSUE 1
Did the District Court err when it concluded that the Smiths owed Eagle Watch lease payments of $509.56 per year for the period of the parties’ lease from 1987-1989?
Eagle Watch and the Smiths executed their written lease agreement in 1984. The parties entered into the CRP contracts in July and December 1986. Although the original lease agreement was not formally modified at that time, both parties testified at the District Court hearing that they intended the $20,000 lease payment to be satisfied by a combination of the $19,491 annual CRP payment and the Smith’s annual payment of $509. In fact, Alex Smith testified that he and Peter Bouma, the president of Eagle Watch, had specifically bid the land into the CRP program at $32.70 per acre and had specifically decided on the 61/39 split because thirty-nine percent of $32.70 per acre (Eagle Watch’s share) equals $12.75 per acre, which is the exact figure that the Smiths were paying to Eagle Watch under their pre-CRP lease agreement. Because some of the farmland did not qualify for the CRP program, however, the CRP payment was $509 short of the total annual lease payment.
At the same hearing, Peter Bouma agreed that he intended “at least for the first three years for the $20,000.00 CRP payment to be [his] payment for the lease of that land.” Bouma testified that he informed the Smiths that the CRP payment would not cover their annual $20,000 lease payment only after the Smiths indicated that they believed the lease to be extended for the ten-year period of the CRP contracts. His initial intent, however, was that the lease payment would be satisfied by a combination of the CRP payment and a $509 payment from the Smiths.
On the basis of both parties’ testimony at the hearing, the District Court concluded that “[t]he parties agreed to a reasonable financial arrangement during the last years of the lease” and that therefore “[Eagle Watch] is entitled to payments of $509.56 annually from [the Smiths] commencing October 1, 1987, and terminating October 1, 1989 (3 years).”
On appeal, neither party disputes the District Court’s conclusion that Eagle Watch received its $20,000 annual lease payment from a combination of its CRP payment and the Smith’s annual payment of $509 during the first three years of the CRP contracts (1987-1989) when the parties’ lease was still in effect. In fact, Eagle Watch concedes that “it was [Eagle Watch’s] belief and understanding that during those next three years, Smiths would receive approximately $30,500.00 annually from CRP and Eagle Watch would receive approximately $19,500 from CRP and approximately $500 from Smiths.” Eagle Watch’s “belief and understanding” is further evidenced by a letter that Bouma sent to the Smiths in April 1987, prior to the commencement of the CRP term. In that letter, Bouma did not indicate that he believed that the Smiths would owe Eagle Watch $20,000 per year in addition to Eagle Watch’s $19,491 payment after the start of the CRP term. Instead, Bouma stated that he should receive “some payment” from the Smiths in addition to Eagle Watch’s $19,500 CRP payment. (Emphasis added.) According to Bouma, this additional payment would take into consideration that the entire property leased by the Smiths had not been enrolled in the CRP. After the Smith’s received this letter, they tendered a check to Eagle Watch in the amount of $509, which compensated Eagle Watch for the difference between the acreage that the Smiths had originally leased and the acreage that the ASCS had accepted into the CRP.
Any modification of the parties’ original written lease agreement is governed by § 28-2-1602, MCA, which provides: “A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.” Section 28-2-1602, MCA, extends to executed oral modifications of rental payment agreements. See Lemley v. Allen (1983), 203 Mont. 37, 41, 659 P.2d 262, 265; Kosena v. Eck (1981), 195 Mont. 12, 19, 635 P.2d 1287, 1291. “An oral agreement modifying a written agreement is executed when its terms have been fully performed.” Lemley, 203 Mont, at 41, 659 P.2d at 265. This Court has held that an oral agreement that modifies the payment terms of a written lease agreement is fully executed when both parties comply with the new terms and when one party pays, and the other accepts, a different payment than that provided for in the written lease agreement. Lemley, 203 Mont. at 41, 659 P.2d at 265; Kosena, 195 Mont, at 19, 635 P.2d at 1291.
In this case, both parties complied with the requirements of the CRP contracts, which converted the property from farmland to grassland. In addition, Eagle Watch accepted the yearly CRP payments which Peter Bouma testified that he had intended to accept in lieu of the Smith’s lease payments. We therefore hold that the original 1984 written lease agreement was modified by the parties’ oral agreement that the original lease payment would be satisfied by the annual CRP payment and the Smiths’ annual payment of $509.56 and by Peter Bouma’s acceptance of the annual CRP lease payment. We affirm that part of the District Court’s order which required the Smiths to pay Eagle Watch lease payments of $509.56 per year for the three remaining years of the parties’ lease.
ISSUE 2
Did the District Court err when it concluded that the Smiths were holdover tenants for the period of time from 1990-1996?
In this case, the District Court concluded that the CRP contracts did not modify the parties’ lease agreement by extending the term of the lease to ten years. The court therefore concluded that after the parties’ lease ended in 1990, the Smiths’ only claim to the land for the remaining years of the CRP contracts was as holdover tenants. The Smiths maintain, however, that they did not remain on the land as holdover tenants. Instead, the Smiths assert that the CRP contracts and the applicable federal regulations modified the underlying lease to the extent that they were inconsistent. The Smiths therefore maintain that the CRP contracts modified the term of their lease by extending it for the ten-year period of the CRP contracts.
The District Court based its conclusion that the CRP contracts did not modify the Smith’s lease, in part, on Schiewe v. Farwell (Idaho 1993), 867 P.2d 920. In Schiewe, the plaintiff leased agricultural land from the defendants for five years pursuant to a written contract. After the term of the lease expired, the plaintiff maintained possession of the land on a year-to-year basis as a holdover tenant under the same terms as provided in the original agreement. After the parties entered the land into the CRP, the defendants requested that the plaintiff sign a five-year lease. The plaintiff refused, maintaining that the CRP contract provided her with a ten-year right of possession. When the defendants threatened to evict her, the plaintiff brought an action to determine whether the CRP created a right to remain on the land. The plaintiff contended that the language of the CRP contract, which is identical to the CRP contract language that the Smiths cite in this case, vested her with the right to operate the cropland during the ten-year term of the CRP contract. That language provides that in order to be eligible for the CRP, an operator must, inter alia, “provide satisfactory evidence that such person will operate such cropland for the contract period.” Schiewe, 867 P.2d at 923 (citing Section 2A(1) of the CRP contract appendix).
The Idaho Supreme Court concluded that although a lease or some proof of a continuing right to operate the land is necessary to comply with the terms of the CRP, the CRP contract does not itself create such a lease. Schiewe, 867 P.2d at 924. The Court reasoned that the CRP contract does not provide any terms normally associated with a lease, such as terms governing payment of property taxes, liability insurance, and maintenance of the property. Schiewe, 867 P.2d at 924. In addition, the Court noted that the CRP contemplates that owners and operators may change during the ten-year term of the- CRP. Schiewe, 867 P.2d at 924. The Court therefore held that “although [the plaintiff] may be a party to the [CRP contract], this contract does not create a right to remain on the cropland for the contract period where no independent right exists” Schiewe, 867 P.2d at 924 (emphasis added).
We find the language and reasoning of Schiewe to be persuasive. In this case, the Smiths potentially had three years remaining on their agricultural lease with Eagle Watch when the parties entered into the CRP contracts. The Smiths’ certification in the CRP contracts that they were “operators” with “general control of the farming operations on the farm” resulted solely from their right of possession and control of the land pursuant to that underlying agricultural lease. See Sections 1R and 2A(1) of the appendix to the CRP contracts. The relationship between Eagle Watch and the Smiths was as landlord and tenant, and the Smiths right to possession and control of the land pursuant to that relationship was not changed or affected by the CRP contracts.
The landlord/tenant lease relationship is independent of the CRP contract and is a matter of state law. See, e.g., Dickson v. Edwards (5th Cir. 1961), 293 F.2d 211, 215; Thomas v. Dudrey (Kansas 1972), 494 P.2d 1039, 1056 (Fatzer, C.J., dissenting). The CRP contracts and federal regulations therefore have no bearing on the right of a landlord to remove a tenant under state law. In fact, the CRP contracts clearly contemplate that a tenant’s interest in the land may be reduced or entirely eliminated. Because a tenant’s right of possession is only by virtue of the landlord/tenant relationship, that right may be terminated at any time in accordance with state law.
In this case, the parties’ written lease agreement at the time they became parties to the CRP contracts was for a term of one year with an option for a two-year extension. Because the Smiths timely exercised their option to remain on the land for the additional two-year period, the written lease agreement expired in 1989. The Smiths, however, remained on the land after the expiration of their lease term and continued to receive their sixty-one percent share of the annual CRP payments. Although the Smiths’ right to possession of the land did not arise by virtue of the CRP contracts, the District Court concluded that the Smiths continued their possession and control of the land based on a “holdover” agricultural farm lease.
Holdover tenancies are governed by statute in Montana. For the holdover of a commercial lease, § 70-26-204, MCA, provides:
If a lessee of real property ... remains in possession thereof after the expiration of the hiring [of real property] and the lessor accepts a rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding 1 month when the rent is payable monthly, or in any case 1 year.
(Emphasis added.) In this case, Eagle Watch did not accept any of the Smith’s $509 supplemental rent payments, but did accept annual CRP payments which the parties had intended would be applied toward the lease payment. As we held above, Eagle Watch’s acceptance of those payments, combined with the parties’ intent that those payments would constitute the majority of the lease payment, acted to modify the terms of the written lease agreement.
Therefore, although the CRP contracts did not create a right of possession for the ten-year term of the CRP contracts, we hold that the Smiths did lawfully remain on the land after the expiration of their written lease term as “holdover” agricultural tenants. That tenancy was created when the Smiths remained on the land and continued their duties pursuant to the CRP contracts and when Eagle Watch accepted the annual CRP payments and failed to take action to remove the Smiths from the land. We therefore affirm that portion of the District Court’s opinion and order which concluded that (1) the CRP contracts did not modify the underlying lease so as to provide the Smiths with a right of possession for the ten-year period of the CRP contracts, and (2) the Smiths remained on the land as holdover tenants for the remaining years of the CRP contracts, from 1990-1996.
ISSUE 3
Did the District Court err when it concluded that the Smiths, as holdover tenants, owed Eagle Watch lease payments of $20,000 per year from 1990-1996?
Section 70-26-204, MCA, provides thatifthe lessee of real property, including commercial and agricultural property, remains in possession of the property after the expiration of a lease and the lessor continues to accept rent on that property, “the parties are presumed to have renewed the [lease] on the same terms and for the same time, not exceeding 1 month when the rent is payable monthly, or in any case 1 year.” (Emphasis added.) The presumption that the lease will continue “on the same terms and for the same time” is a disputable presumption. Section 26-1-602, MCA, (stating that all presumptions not listed as conclusive in § 26-1-601, MCA, are disputable and may be controverted by other evidence). “If the presumption is not controverted, the facts must be found according to the presumption, or, if it is controverted, the presumption must be given weight as evidence.” Roseneau Foods, Inc. v. Coleman (1962), 140 Mont. 572, 577, 374 P.2d 87, 90.
In this case, although Eagle Watch does not challenge the District Court’s conclusion that the Smiths only owed Eagle Watch $509 per year for the first three years of the CRP contracts, Eagle Watch does dispute that the Smiths’ holdover tenancy continued under those terms. Eagle Watch asserts that “[t]he District Court correctly held ... that Smiths owed Eagle Watch lease payments of $509.56 per year for ... the 3-year period 1987-1989”; however, Eagle Watch maintains that “as holdover tenants the District Court properly determined that [the Smiths] owe the $20,000.00 annual lease payments to Eagle Watch, the parties never having executed a written or oral lease modification.” As we determined in the first part of our opinion, there was in fact a valid executed oral modification of the terms of the parties’ lease agreement for the final three years of that lease, from 1987-1989. Therefore, since the terms of the lease, at the time of its expiration, provided for yearly CRP payments to Eagle Watch plus yearly payments of $509 from the Smiths, there is a presumption that those payment terms continued to apply during the pendency of the holdover tenancy.
In this case, there is no evidence to rebut that presumption. Eagle Watch did not take steps to remove the Smiths from their holdover tenancy, pursuant to §§ 70-27-104 and -105, MCA. Furthermore, Eagle Watch did not, either prior to or during the Smiths’ holdover tenancy, provide the Smiths with notice of an increase in rent during the pendency of that holdover tenancy. Therefore, the parties were “presumed to have renewed the [lease] on the same terms and for the same time.” Section 70-26-204, MCA. Since Eagle Watch failed to adequately rebut that presumption, we hold that the Smiths were hable to Eagle Watch for annual lease payments of $509.56, pursuant to the terms of the original modified lease agreement for the remainder of their holdover tenancy. We therefore reverse that portion of the District Court’s order that held that the Smiths owe Eagle Watch $20,000 per year for each year of the holdover tenancy, from 1990-1996.
On the basis of our conclusion that the parties had modified the terms of their written lease agreement to provide that CRP payments to Eagle Watch were in lieu of the full lease payment by the Smiths during the pendency of their lease, and on the basis of our conclusion that the Smiths operated under “the same terms” during the pendency of their holdover tenancy, we affirm that part of the District Court’s order which concluded that the Smiths owed Eagle Watch $509 for the years 1987-1989 and reverse that part of the District Court’s order that concluded that the Smiths owed Eagle Watch $20,000 for the years 1990-1996. We remand this case to the District Court for entry of a judgment consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and HUNT concur.
. For example, Section 26 of the appendix to the CRP contracts provides that a new owner or operator may become a participant in the CRP contract if the person assumes the obligations of the previous participants in the program. In addition, Section 28 of the appendix to the CRP contracts states that the CRP contract may be revised or revoked “by mutual agreement between the parties.”
|
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
Canbra Foods Ltd. and Buttrey Food & Drug Co., (collectively Canbra) appeals from the First Judicial District Court, Lewis and Clark County, holding that its request for review was not timely submitted and its appeal to the Butte-Silver Bow County Tax Appeal Board (the CTAB) was not timely filed. We reverse.
For purposes of this decision, this Court will discuss only the following dispositive issues:
1) Is the mailing of a request for review with the DOR the equivalent of “submitting” a request under § 15-7-102(3), MCA (1993)?
2) Did the District Court err in holding that the CTAB did not have jurisdiction to hear Canbra’s appeal?
BACKGROUND
In 1993, the Department of Revenue (the DOR) assessed property owned by Canbra at a value of $7,277,136. The DOR mailed an assessment notice to Canbra on June 24, 1993. However, the notice was returned by the Postal Service because the DOR had failed to pay adequate postage. On July 9, 1993, Canbra contacted the DOR inquiring whether an assessment had been sent. In response, the DOR sent Canbra another copy of the appraisal both by mail and facsimile. The facsimile received by Canbra was illegible. Canbra received a legible copy of the appraisal by mail on July 12,1993. The DOR argues that Canbra received notice of the classification and appraisal on July 9, 1993, the date on which the DOR provided the information to Canbra via facsimile; thus, the deadline to file an appeal would have been fifteen days from July 9, 1993. The District Court, however, adopted the July 12th date upon which Canbra received notice by mail. Since the DOR has not appealed from that ruling, the date of July 12,1993, will be used as the date upon which Canbra received notice of the classification and appraisal.
Canbra disagreed with the DOR’s $7,277,136 assessment of the property. On July 27,1993, Canbra mailed a Form AB-26 requesting that the DOR review the assessment. On the same day, Canbra also mailed an appeal of the assessment to the CTAB. The DOR rejected Canbra’s request for review of its valuation finding the request was not timely. Although the DOR did not conduct a review of the valuation of the property, the CTAB reduced Canbra’s property assessment to $4,000,000 in response to Canbra’s appeal. Despite the reduction, Canbra appealed the CTAB’s decision to the State Tax Appeal Board (STAB) which dismissed the appeal finding that Can-bra’s original July 27,1993 appeal to the CTAB was not timely.
Canbra appealed the STAB’s decision to the First Judicial District Court, Lewis and Clark County. In its appeal, Canbra maintained that mailing its request for review to the DOR was a sufficient means of “submitting an objection” under § 15-7-102(3), MCA (1993). In addition, Canbra contended that mailing a notice of appeal was a sufficient method of filing an appeal with the CTAB. The District Court disagreed, holding that a timely filing of the appeal was a jurisdictional prerequisite which could not be waived. The District Court reasoned that, “an application for reduction of a property valuation must be filed with the county tax appeal board within 15 days after receiving either a notice of classification and appraisal or a determination after the review provided for in § 15-7-102(3), MCA (1993).” (Emphasis added.) The District Court posed the question as follows: “[w]hether an appeal or request for review is considered ‘filed’ on the date it is placed in the mail by a petitioner[?]” The District Court then concluded that, for purposes of requesting a review with the DOR or appealing to the CTAB, mailing is not the equivalent of filing. Thus, the Court held, since Canbra did not timely “file” either the request for review or the appeal, CTAB did not have jurisdiction to hear Canbra’s appeal.
DISCUSSION
1) Is the mailing of a request for review with the DOR the equivalent of “submitting” a request under § 15-7-102(3), MCA (1993)? [1] Whether a mailing constitutes “submitting” under § 15-7-102(3), MCA (1993), is a question of law. The standard of review for an administrative agency’s conclusions of law is whether its interpretation of the law was correct. Leahy v. Department of Revenue (1994), 266 Mont. 94, 97, 879 P.2d 653, 655 (quoting Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601).
Section 15-7-102(3), MCA (1993), provides in relevant part:
If the owner of any land and improvements is dissatisfied with the appraisal as it reflects the market value of the property as determined by the department or with the classification of the land or improvements, the owner may request an assessment review by submitting an objection in writing to the department, on forms provided by the department for that purpose, within 15 days after receiving the notice of classification and appraisal from the department. ... [Emphasis added.]
Section 15-15-102, MCA (1993), provides in relevant part:
The valuation of property may not be reduced by the county tax appeal board unless either the taxpayer or the taxpayer’s agent makes and files a written application for reduction with the county tax appeal board. The application must be filed on or before the first Monday in June or 15 days after receiving either a notice of classification and appraisal or determination after review under 15-7-102(3) from the department of revenue or its agent, whichever is later. If the department’s determination after review is not made in time to allow the county tax appeal board to review the matter during the current tax year, the appeal must be reviewed during the next tax year, but the decision by the county tax appeal board is effective for the year in which the request for review was filed with the department. ...
In the present case, the District Court held that Canbra’s July 27, 1993, mailing did not constitute a “filing” of a request for reduction of property valuation under § 15-15-102, MCA (1993), within the requisite fifteen days. Rather, the District Court held that “filing” requires that the document be delivered to the designated office such that it is “received” by the clerk or officer in question.
The District Court’s analysis relied on the filing requirement set forth in § 15-15-102, MCA (1993). We note that § 15-15-102, MCA (1993), is somewhat confusing. It speaks of filing a “written application for reduction” rather than filing “an appeal.” However, it then goes on to talk about the CTAB reviewing “the appeal.” Accordingly we treat the filing of an application for reduction of property valuation under § 15-15-102, MCA (1993), as synonymous with filing an appeal to the CTAB. As of 1993, § 15-15-102, MCA (1993), has provided that an application for reduction had to be filed before the first Monday in June or within fifteen days after receiving the DOR assessment review under § 15-7-102(3), MCA, whichever is later. The court’s analysis focused on the requirement that an appellant file his or her appeal within fifteen days after receiving notice of appraisal. However, the District Court ignored the fact that, under § 15-15-102, MCA (1993), the fifteen-day “filing” requirement for an appeal is extended if the taxpayer has “submitted” a timely request for assessment review with the DOR under § 15-7-102(3), MCA (1993). That is, if there were a timely request for assessment review -under § 15-7-102(3), MCA (1993), the requirement that an appeal be “filed” with the CTAB was not triggered until the DOR completed its assessment review and notified the appellant of the results.
The request for assessment review:
Section 15-7-102(3), MCA (1993), does not require that the request for assessment review be “filed.” Instead, it provides that the taxpayer could request an assessment review by “submitting an objection in writing to the department. ...” (Emphasis added.) Section 15-15-102, MCA (1993), allows the taxpayer fifteen days after the DOR’s determination on review to file an appeal. Thus, if a taxpayer “submitted” a timely request for review by the DOR, he or she had fifteen days after receipt of the department’s determination on review to “file” an appeal. In the present case, Canbra mailed its appeal and its request for review on the same day, July 27, 1993. That mailing presents two questions: 1) does a mailing constitute “filing” an appeal with the CTAB; and 2) does a mailing constitute “submitting” an objection to the DOR under § 15-7-102(3), MCA (1993)?
We must first address the question of whether mailing constitutes “submitting” a request for review under § 15-7-102(3), MCA (1993). If we answer that question in the affirmative, then, since the time for “filing” an appeal under § 15-15-102, MCA (1993), was not triggered until the DOR first conducted its assessment review, we need not address the question of whether a mailing satisfied the requirement that an appeal be “filed.”
Tax statutes are to be strictly construed against the taxing authorities and in favor of the taxpayer. Butte Country Club v. Department of Revenue (1980), 186 Mont. 424, 430, 608 P.2d 111, 115. In the instant case, § 15-7-102(3) MCA (1993), required Canbra to “submit” its request for assessment review to the DOR within fifteen days of receiving the appraisal. Here, the issue is whether Canbra’s July 27, 1993, mailing satisfied the requirement that a request be “submitted” within fifteen days of Canbra’s receipt of the appraisal on July 12, 1993.
Although we have not had occasion to interpret the meaning of the term “submit,” we note that the North Dakota Supreme Court in Husebye v. Jaeger (N.D. 1995), 534 N.W.2d 811, 815, addressed the distinction between “filing” and “submitting.” The North Dakota Court was asked to determine the constitutionality of a state statute requiring that referendum petitions be submitted to the Secretary of State by 5:00 p.m. on the day designated as the deadline. The North Dakota constitution does not require that a referendum petition be filed; rather, it provides that it “may be submitted” only within 90 days. Art. II, Sec. 5, N.D. Const. Prior to 1978, the constitution had provided that such petitions be “filed.” In deciding that the petition could be submitted until midnight on the 90th day, the court held:
As construed in the prior cases, “filing” requires not only presentment of the document to the public official, but the officer’s action of accepting it and placing it into the official records of the office for public examination. Similarly, this court has held, in the context of liens, that filing requires more than merely leaving the documents in the office of the appropriate official. Powers Elevator Co. v. Pottner, 16 N.D. 359, 113 N.W. 703 (1907). Filing implies not only presentation, but official action to place the document into the permanent record.
Husebye, 534 N.W.2d at 815. The court then went on to contrast the requirement of “filing” with “submitting.”
By contrast, the term “submit” has a much less restrictive meaning. Webster’s New World Dictionary 1418 (2nd ed. 1982), defines “submit” as “to present or refer to others for decision, consideration, etc.” See also 83 C.J.S. Submit (1953) [“The verb ‘submit’ is defined generally as meaning to present for determination”] . Submitting does not imply any required action on the part of the recipient, but would be complete upon presentation. We conclude that, by changing the constitutional requirement from “filed” within 90 days to “submitted” within 90 days, the people intended a less restrictive requirement. The rationale of those cases holding that petitions must be filed by the close of normal business hours is inapplicable.
Husebye, 534 N.W.2d at 815. We agree that “submit” is a less restrictive requirement than “filing;” that the term “submit” implies that the receiving party is not required to act; that a unilateral action on the part of a taxpayer will suffice. Thus, Canbra’s unilateral act of mailing the AB-26 Form on July 27, 1993, satisfied the statutory requirement that the request be “submitted” to the DOR within fifteen days of its receipt of the appraisal on July 12, 1993.
2) Did the District Court err by finding that the CTAB did not have jurisdiction to hear Canbra’s appeal?
The District Court concluded that because Canbra failed to file its appeal with the CTAB in time, the CTAB lacked jurisdiction to hear its appeal. The District Court explained that Canbra’s letter to the CTAB did not satisfy the requirement that it “file” its appeal within fifteen days of receiving notice of the classification and appraisal. The District Court concluded that the STAB’s decision to dismiss Canbra’s appeal was correct because Canbra’s appeal to the CTAB was not filed in a timely manner.
Canbra’s appeal to the CTAB was based on § 15-15-102, MCA (1993). This statute requires a taxpayer to file an appeal with the county tax appeal board. However, a taxpayer is not required to file an appeal until the first Monday in June or fifteen days after receiving notice of classification and appraisal or determination by the DOR pursuant to § 15-7-102(3), MCA (1993). Section 15-15-102, MCA (1993). Section 15-15-102, MCA (1993), clearly provides that, in the event a taxpayer requests the DOR to conduct an assessment review, the fifteen-day period for filing an appeal does not commence until the DOR has responded to the request for review under § 15-7-102(3), MCA (1993). Thus, since we have held that Canbra’s July 27, 1993 mailing constituted a “submission” of a request for the DOR review under § 15-7-102(3), MCA (1993), it was incumbent upon the DOR to conduct such a review. Until such time as that review has been conducted and Canbra has received notice of the DOR’s determination, the fifteen days for filing an appeal to the CTAB has not yet commenced.
We hold that Canbra’s July 27, 1993 appeal to the CTAB under § 15-15-102, MCA (1993), was premature since, having submitted a request for assessment review, Canbra has until fifteen days after it receives notice of the DOR’s determination in response to the review to file an appeal to the CTAB. If Canbra is aggrieved by the DOR’s appraisal after the review, it can then appeal to the CTAB within fifteen days after receiving notice of the DOR’s determination.
We hold that Canbra submitted a timely request for an assessment review under § 15-7-102(3), MCA (1993); that the DOR has yet to address the merits of that request for assessment review; and that Canbra has fifteen days after receipt of the DOR’s determination of that review within which to file an appeal to the CTAB under § 15-15-102, MCA (1993).
Reversed and remanded for proceeding consistent herewith.
JUSTICES ERDMANN, NELSON, TRIEWEILER and HUNT concur.
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The Defendant, Earl Dallas Ford, was charged by information filed in the District Court of the Fourth Judicial District in Missoula County, with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. Following a trial by jury, Ford was convicted and sentenced. He appeals the District Court’s judgment. We affirm the District Court.
The issues on appeal are:
1. Was there sufficient evidence to support the jury verdict?
2. Did the District Court err when it denied Ford’s motion for a mistrial?
3. Did the District Court err when it overruled Ford’s objections to questions asked during his cross-examination, and to statements made during the State’s closing argument regarding his sexual preference?
4. Did the sentence imposed by the District Court violate Ford’s rights pursuant to Article II, Section 22, of the Montana Constitution?
FACTUAL BACKGROUND
Earl Dallas Ford was charged with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. The information alleged that Ford drugged and incapacitated Brad Stahl, and then engaged in sexual intercourse with Stahl, without Stahl’s consent. He entered a plea of not guilty.
During pretrial proceedings, the State filed a “Notice of Intent to Introduce Evidence of Other Acts,” pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957, and the notice requirements of § 46-13-109, MCA. The State sought to present evidence of a 1991 conviction in California for felony child molestation for which Ford was sentenced to prison for three years. The State also filed a “Notice of Intent to Seek Increased Punishment,” pursuant to the persistent felony offender statutes, §§ 46-18-501, -502, and -503, MCA.
Trial by jury commenced on October 11, 1994. The District Court granted Ford’s motion opposing the State’s “Notice of Intent to Introduce Evidence of Other Acts.” The District Court also granted the State’s motion to allow the investigating officer, Tom Lewis, to testify that, at the time of arrest, Ford admitted to raping a boy in California.
Brad Stahl, the complaining witness, testified that on July 14, 1994, after attending a barbecue in East Missoula, he slept on the living room couch in Earl Ford’s trailer. He was not quite asleep when he felt something placed over his mouth, and was then unable to breathe. When he regained consciousness, he realized that someone’s penis was in his anus. Although awake, he was disoriented and unable to move. When finally able to move, he went into the bathroom and discovered that he was not wearing any clothes. He walked back into the living room, found his clothes under the couch, and put them on. Ford then sat down next to him on the couch. Brad attempted to leave the trailer, but Ford rubbed baby-oil on his back, and tried to convince him to lie down and go back to sleep. Again, Brad attempted to leave, but Ford pushed him into his bedroom and onto the bed. Brad exited the bedroom, and was finally able to leave the trailer. Feeling unable to drive, he slept in his truck for one hour. He then woke up, drove to his uncle’s house, and slept in his truck for three more hours.
The next day, Brad, accompanied by his cousin, Charlie, and his uncle, Kevin, confronted Ford. Ford apologized, admitted what he had done, and told Brad he was “a good man.” Brad demanded the return of his underwear, which Ford retrieved from his bedroom.
Several days later, Brad went to the police and to a doctor. Although Ford had not ejaculated in him, Brad suffered some tearing of his anus. He told the nurse that he had been drugged, that anal intercourse had been performed upon him, that he had not consented to intercourse, and that he was angry and emotional. At the time of trial, he was seeing a counselor.
Charlie Stahl confirmed that on July 14, 1994, Brad was not intoxicated. He described the confrontation between Ford and Brad on July 15, 1994, noting that Ford apologized repeatedly. He also recounted Brad’s emotional distress.
Likewise, Kevin Stahl confirmed that Brad was not intoxicated, and provided a similar description of the confrontation between Ford and Brad. Furthermore, he testified that on the morning of July 15, 1994, Kevin had found Brad asleep in his truck. As Brad exited the truck and asked for a hug, Kevin immediately knew something was wrong. The two men then drove around for an hour while Brad relayed the events of the rape. Kevin also recounted the physical and emotional pain Brad was experiencing.
Officer Tom Lewis, a deputy sheriff with the Missoula County Sheriff’s Department, was the investigating and arresting officer. Lewis testified regarding his interview with Brad, his attempts to locate Ford, and that, pursuant to a search of Ford’s trailer, he found a small bottle of Johnson’s baby oil. During his testimony, the following exchange occurred:
Q: Did you ask to search his residence?
A: Yes, I did. I asked Mr. Ford for consent to search. Prior to that, when I advised Mr. Ford that there were charges pending on violation out of another state and-
At that point, Ford objected based on the District Court’s ruling regarding evidence of other acts. After the District Court overruled his objection, Ford moved for a mistrial, which the District Court denied. The State proceeded to question Officer Lewis. No further information regarding Ford’s prior offenses was elicited. Immediately following Lewis’s testimony, the District Court issued a cautionary instruction. The jury was told to consider only the merits of the instant case and not any other factors, particularly whether Ford was wanted in any other jurisdiction.
Earl Ford testified on his own behalf, and denied having sexual intercourse with Brad Stahl. He admitted that he had rubbed baby-oil on Brad’s back, but claimed he was merely soothing Brad, who had complained of a bad hangover. His apologies the next day, he alleged, were only for his grumpy behavior. During the State’s cross-examination of Ford, the following exchange occurred:
Q: It is true, is it not, that you have an interest in homosexuality?
A: Yes, it is.
MR. BECCARI (defense counsel): Your honor, I am going to object, that is so incredibly prejudicial. It is nothing I brought up in my direct examination.
THE COURT: Overruled.
Q: Would you explain that interest, please?
A: I just have an interest in men.
Q: Are you a homosexual, bisexual or what?
A: Bisexual.
Subsequently, during the State’s closing argument, the following statements were made:
THE STATE: I’m hesitant and reluctant to get into this, but I feel I have to call this to your attention. I am not gay bashing, I am not bisexual bashing, I have got better things to do. But we have got a man here—
MR. BECCARI (defense counsel): I am going to object to this in closing argument. It is not supported by any evidence, it is totally—
THE COURT: It is argumentative, it is admitted.
THE STATE: We have a man that admitted he is bisexual. That’s exactly what he is charged with doing. What he does with consent with somebody, I don’t give a rip. But Brad cares what happened to him.
The jury returned a guilty verdict, and a presentence investigation report was ordered. At the sentencing hearing, the District Court designated Ford as a persistent felony offender, pursuant to §§ 46-18-501, -502, and -503 MCA; and a dangerous offender for purposes of parole. The District Court sentenced him to 100 years, and ordered that he shall not be eligible for parole or participation in a supervised release program while serving his term.
Ford now appeals to this Court. It should be noted that his appeal is accompanied by an Anders brief, filed by the Missoula Public Defender Office, contending that there are no meritorious appealable issues in this case. We affirm the judgment of the District Court.
ISSUE 1
Was there sufficient evidence to support the jury verdict?
When we review the sufficiency of the evidence supporting a jury verdict in a criminal case, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670, 675.
The Anders brief, while contending that there are no meritorious grounds for appeal, provides notice to this Court that Ford wishes to raise the following issue: That he was unfairly arrested, charged, and convicted on the word of Brad Stahl, who was lying. In essence, Ford claims that there was insufficient evidence to support the jury’s verdict.
The jury was presented with the conflicting testimony of Brad Stahl and Earl Ford. Ultimately, they decided to accept Brad’s version, and to reject Ford’s version. This is the jury’s prerogative according to the law in Montana. Section 25-7-103, MCA, provides that in a jury trial all questions of fact, with limited exceptions, are to be decided by the jury.
Our prior decisions establish that in sex offense cases the victim’s testimony need not be corroborated. State v. Gilpin (19288), 232 Mont. 56, 70, 756 P.2d 445, 453. In State v. Biehle (1992), 251 Mont. 257, 824 P.2d 268, the victim testified that the sexual contact was committed by the defendant. We held that such testimony was sufficient to sustain a guilty verdict. Biehle, 251 Mont, at 260, 824 P.2d at 271. Additionally, the jury heard the testimony of Charlie Stahl, Kevin Stahl, and Officer Lewis, and was presented with the bottle of baby oil found in Ford’s trailer.
Based on the evidence presented, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, we hold that there was sufficient evidence to support the jury’s verdict.
ISSUE 2
Did the District Court err when it denied Ford’s motion for a mistrial?
When we review a District Court’s ruling on a motion for a mistrial, the standard of review is whether there is clear and convincing evidence that the court’s ruling is erroneous. State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. Furthermore, a mistrial is appropriate when there is a demonstration of manifest necessity, or when the defendant has been denied a fair and impartial trial. United States v. Perez (1824), 22 U.S. 579, 580, 6 L. Ed 165; (9 Wheat.) State v. Brush (1987), 228 Mont. 247, 252-53, 741 P.2d 1333, 1336; State v. Doney (1981), 194 Mont. 22, 32-33, 636 P.2d 1377, 1383. This Court has invoked the manifest necessity doctrine twenty-two times since it was first employed in State v. Close (1981), 191 Mont. 229, 623 P.2d 940. Unfortunately, we have not remained consistent in the fifteen years since Close, and we now have a myriad of different standards by which to review the denial of a mistrial. Today, we clarify the standard and announce a prospective rule. We hold that a motion for a mistrial will be granted when there is either a demonstration of manifest necessity, or where the defendant has been denied a fair and impartial trial.
At trial, Officer Lewis testified:
I asked Mr. Ford for consent to search. Prior to that, when I advised Mr. Ford that there were charges pending on violation out of another state and—
(emphasis added). Ford’s objection to this testimony and subsequent motion for a mistrial were both denied. On appeal, Ford claims that Officer Lewis’s statement constituted inadmissible evidence of other crimes and “ensured the jury would convict [Ford] based on who he was rather than what he did.” Therefore, he contends, the District Court committed reversible error when it denied his motion for a mistrial.
We conclude that there was not a manifest necessity for a mistrial, and that Ford was not denied a fair and impartial trial. First, the statement had only a slight prejudicial effect, if any. Officer Lewis did not testify about any prior crimes or convictions. Rather, he mentioned that charges from another jurisdiction were pending, and that they were one of the reasons he was attempting to locate Ford. He did not speculate about the nature of those other charges.
Second, any prejudicial effect the statement might have had was cured by the following cautionary instruction which was given by the District Court:
Ladies and gentlemen, you have just heard the testimony of Detective Lewis concerning his attempts to locate the Defendant. The only thing you are to consider is the merits of this case alone. You are not to consider any other factors, particularly whether any other jurisdiction wanted him or anything of that nature. And you are not to speculate at all from any of that information. You are to confine yourself solely to the aspect of guilt or innocence of the Defendant on these particular charges and do no speculation as to any other matters. Agreed? Does anybody have any problem with that concept?
We have held that “[a]n error in the admission of evidence may be cured if the jury is admonished to disregard it.” State v. Conrad (1990), 241 Mont. 1, 9, 785 P.2d 185, 190. In Conrad we went on to conclude that, in view of the trial court’s admonishment of the jury after evidence of the defendant’s other charged misconduct came in during cross-examination, the State’s reference to prior convictions did not constitute reversible error. Conrad, 241 Mont, at 9, 785 P.2d at 190.
We conclude that Officer Lewis’s statement could have had little, if any, effect on the jury’s decision, and that Ford fails to meet his burden of showing clear and convincing evidence of error by the District Court. We agree with the District Court that the circumstances of this case did not warrant a mistrial, and conclude that Ford received a fair and impartial trial. Accordingly, we hold that the District Court did not err when it denied Ford’s motion for a mistrial.
ISSUE 3
Did the District Court err when it overruled Ford’s objections to questions asked during his cross-examination, and to statements made during the State’s closing argument regarding his sexual preference?
When we review an evidentiary ruling, the standard of review is whether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The district court is in the best position to rule on the admissibility of evidence at trial. It has the opportunity to evaluate the contextual relevance of proffered evidence, and the impact such evidence will have on the jury. Rulings regarding the admissibility of evidence are left to the sound discretion of the trial court, and will not be overturned on appeal absent a showing of manifest abuse of discretion. Greytak, 262 Mont, at 405, 865 P.2d at 1098. Thus, our deferential standard of review gives the district court “great discretion” in ruling on the admissibility of evidence. State v. Larson (1992), 255 Mont. 451, 454, 843 P.2d 777, 779.
During the State’s cross-examination of Ford, the following exchange occurred:
Q: It is true, is it not, that you have an interest in homosexuality?
A: Yes, it is.
MR. BECCARI (defense counsel): Your honor, I am going to object, that is so incredibly prejudicial. It is nothing I brought up in my direct examination.
THE COURT: Overruled.
Q: Would you explain that interest, please?
A: I just have an interest in men.
Q: Are you a homosexual, bisexual or what?
A: Bisexual.
Subsequently, during the State’s closing argument, the following statements were made:
THE STATE: I’m hesitant and reluctant to get into this, but I feel I have to call this to your attention. I am not gay bashing, I am not bisexual bashing, I have got better things to do. But we have got a man here—
MR. BECCARI (defense counsel): I am going to object to this in closing argument. It is not supported by any evidence, it is totally— THE COURT: It is argumentative, it is admitted.
THE STATE: We have a man that admitted he is bisexual. That’s exactly what he is charged with doing. What he does with consent with somebody, I don’t give a rip. But Brad cares what happened to him.
Ford asserts that the State’s questions during his cross-examination and statements during its closing argument regarding his sexual preference were so prejudicial that he was deprived of a fair trial.
We hold that, based on the facts of this case, the probative value of the State’s evidence was not substantially outweighed by the danger of unfair prejudice. See Rule 403, M.R.Evid. By admitting this evidence, the District Court did not abuse its discretion, and did not commit reversible error.
There is, unquestionably, the potential for prejudice in this situation. There will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive. While everyone should be offended by the crime Ford was found to have committed, our criminal justice system must take the necessary precautions to assure that people are convicted based on evidence of guilt, and not on the basis of some inflammatory personal trait. Therefore, we caution prosecutors and district courts not to assume, based on this opinion, that evidence of a defendant’s sexual preference would be admissible under most circumstances. In this case, however, we conclude that Ford’s rights were adequately safeguarded, and that he was not convicted because he is a bisexual.
Despite the potential for prejudice, Ford’s sexual preference was relevant to, and probative of an essential issue in this case. Ford was charged with sexual intercourse without consent, committed upon a person of the same gender. The State’s questions on cross-examination, and statements during closing argument, were probative of whether Ford fit the profile of someone who would commit the act for which he was accused. This is especially true given the fact that, because of the nature of the crime, not all members of society would fit the perpetrator’s profile. Furthermore, we have recognized that the State, when making its closing argument, has the right to comment upon the evidence and suggest to the jury the inferences to be drawn therefrom. See State v. Campbell (1990), 241 Mont. 323, 329, 787 P.2d 329, 333.
Finally, it has not been shown that the State’s questions and statements prejudiced Ford’s substantial rights.
Before rendering its verdict, the jury was presented with the following evidence: the baby oil bottle found in Ford’s trailer; the admission of guilt and expressions of remorse made by Ford to the victim; Ford’s unlikely explanation for his expressions of remorse; and the testimony of Charlie Stahl, Kevin Stahl, Officer Lewis, and, most significantly, Brad Stahl. The possible impact of the jury’s knowledge that Ford was bisexual pales by comparison to the likely impact of the overwhelming evidence of his guilt.
Accordingly, we hold that the District Court did not abuse its discretion when it overruled Ford’s objections to the State’s questions on cross-examination and statements during its closing argument.
ISSUE 4
Did the sentence imposed by the District Court violate Ford’s rights pursuant to Article II, Section 22, of the Montana Constitution?
It is well established that our review of a sentence will be limited to questions of legality. State v. Graves (1995), 272 Mont. 451, 463, 901 P.2d 549, 557; State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115. We will not review a sentence for mere inequity; the proper forum for a review of that nature is the Sentence Review Division. State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1090-91.
Ford asserts that his sentence of 100 years, without parole eligibility, violates the excessive sanction provision of Article II, Section 22, of the Montana Constitution. That provision states, “[e]xcessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.” He claims that the harshness of his sentence is unconstitutionally disproportionate to the gravity of his crime.
Before sentencing Ford, the District Court found that he is a persistent felony offender, pursuant to §§ 46-18-501, -502, and -503, MCA. Further, during pretrial proceedings, the State filed a “Notice of Intent to Seek Increased Punishment,” pursuant to §§ 46-18-501, -502, and -503, MCA. Based on those statutes and the presentence investigation report, the District Court sentenced Ford to prison for a term of 100 years, designated him a dangerous offender, and declared him ineligible for parole.
A sentence is not illegal when it is within the parameters provided by statute. State v. Henry (1995), 271 Mont. 491, 497-98, 898 P.2d 1195, 1199. Under § 46-18-502(1), MCA, “a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years.” Ford’s sentence clearly falls within the parameters of § 46-18-502, MCA.
“Trial judges are granted broad discretion to determine the appropriate punishment.” State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. In exercising its discretion and sentencing Ford, the District Court considered the following factors: the facts of the instant crime; his prior criminal history of sexually preying on young boys; previous attempts by professional therapists and state officials to treat his problems; his apparent unwillingness to accept the provided treatment; and his predatory nature. All of the aforementioned factors are appropriate considerations when sentencing a defendant.
Accordingly, we hold that the District Court’s sentence was legally imposed and did not violate Ford’s rights pursuant to Article II, Section 22, of the Montana Constitution.
Our decision today does not affect any right to relief Ford may have from the Sentence Review Division.
The judgment of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT and ERDMANN concur.
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
The mother of the minor child appeals the findings of fact, conclusions of law, and order entered by the Eleventh Judicial District Court, Flathead County increasing child support from $200 a month to $261 a month. We affirm in part, reverse in part, and remand for further proceedings.
ISSUES
1. Did the District Court err in imputing wages of $12,000 to the mother and was this imputation of income supported by substantial evidence?
2. Did the District Court properly apply 40.30.1520 (3), ARM, in considering that the father was supporting two children from his present marriage in addition to the child for which the child support increase was sought?
3. Did the District Court properly implement 46.30.1508(2), ARM, in not adding the father’s bonus to his gross income?
BACKGROUND
Upon the father’s petition for paternity and custody of the minor child, on August 10, 1993, the mother and father stipulated to joint custody, that the mother would be designated as the primary residential parent and that child support would be determined within 60 days. In its initial findings of fact, conclusions of law and order entered May 29, 1985, the District Court had ordered the father to pay the mother $200 a month for child support.
On June 22,1995, the mother moved the District Court to redetermine support for the minor child, which motion the father of the child opposed. The mother is a part time waitress and she agreed to impute $8,772 as her income. The mother stated that she may be able to increase her work hours from 15 to 30 hours a week to a full 40 hours a week. The father stated that $12,000 should be imputed to the mother as income because she is able to work full time. The father is a supervisory employee at Plum Creek where he earns an annual salary of $44,055. He is also supporting two children from his present marriage.
The District Court heard the matter on August 30, 1995, and requested that both parties submit proposed findings of fact and conclusions of law. After considering the evidence presented and the trial memoranda, the District Court modified the existing support order, taking into consideration that the father supports two other children.'The court imputed an income of $12,000 to the mother, and determined that father’s bonus is income for his hard work and therefore is income for the benefit of his second family. The mother appeals these findings of fact, conclusions of law and order entered by the District Court.
STANDARD OF REVIEW
We review a district court’s findings of fact in child support modification cases to determine whether they are clearly erroneous. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 862-63. However, we review a district court’s overall decision on modification of child support awards to determine whether the court’s interpretation of the law was correct. Marriage of Kovash, 893 P.2d at 863.
DISCUSSION
1. Did the District Court err in imputing wages of $12,000 to the mother and was this imputation of income supported by substantial evidence?
The mother contends that the District Court based its imputation of income of $12,000 to her on a finding for which there was not substantial evidence. She therefore argues that the court’s decision was clearly erroneous. On the other hand, the father argues that the District Court heard evidence that the mother was capable of doing the same type of work full time and therefore she was underemployed.
The guideline at issue, 46.30.1513, ARM, states:
DETERMINATION OF IMPUTED INCOME
(1) “Imputed income” means income not actually earned by a parent, but which may be attributed to the parent because the parent is voluntarily unemployed, is not working full-time when full-time work is available, or the parent is intentionally working below his or her ability or capacity to earn income.
(2) Income may be imputed according to one of two methods as appropriate:
(a) Determine employment potential and probable net earnings level based on the parent’s recent work history, occupational qualifications, and prevailing job opportunities and earnings level in the community. ...
(c) Whenever income is imputed to an unemployed parent who is providing in-home care for the child for whom support is being calculated, and if that parent would be required to incur child care expenses if employed at the imputed level, then the imputed income should be reduced by the reasonable value of the parent’s child care service.
(d) Income should not be imputed if any of the following conditions exist:
(i) the reasonable costs of day care for the parties’ dependant children will offset, in whole or in substantial part, the amount of income the custodial parent can earn.
In the instant case, in her child support guidelines financial affidavit, the mother stated that she worked 15 to 30 hours a week at $5.20 an hour. The mother also testified that there was nothing to prevent her from working another shift or working a 40-hour week. Without tips, the mother could gross $10,816 working a 40-hour week at $5.20 an hour. Therefore, the father suggested imputing income at $5.77 per hour, $5.20 base wage plus $.57 per hour for tips, for a 40-hour work week for a total gross of $12,000. Figuring income from tips and from the base hourly wage, the mother could work less than a 40-hour week and still make $12,000.
We hold that the District Court correctly imputed income to the mother according to the methods set forth in 46.30.1513, ARM. The court, properly determined the mother’s employment potential and probable net earnings level based on her work history, occupational qualifications, job opportunities, and earnings level in the community. The mother testified that she anticipated being able to work 40 hours a week and is not physically prevented from doing so. The District Court’s interpretation and application of 46.30.1513, ARM, was correct and its findings were within the evidence presented. Accordingly, we affirm the District Court’s imputation of income to the mother.
2. Did the District Court properly apply 40.30.1520 (3), ARM, in considering that the father was supporting two children from his present marriage in addition to the child for which the child support increase was sought?
The mother contends that a court may consider the noncustodial parent’s other natural born and adopted children only when the custodial parent petitions to increase child support. The mother further contends that she did not petition for an increase in child support but rather petitioned for the court to make a redetermination of child support in which she sought to increase that support.
Section 46.30.1520, ARM, provides in part:
ALIMONY, MAINTENANCE, PRE-EXISTING CHILD SUPPORT OBLIGATIONS AND RESPONSIBILITY FOR OTHER CHILDREN
(1) The amount of alimony or spousal maintenance which a parent is required to pay under a court or administrative order should be deducted from gross income.
(2) For the support of children who are not subject of the child support action:
(a) the amount of the order should be deducted from the parent’s gross income if there is a pre-existing support order ...._
(3) Use of the deductions provided in this rule are appropriate at the time of the establishment of a child support order. In a proceeding to modify an existing order, the following limitations apply: ...
(b) If the custodial parent with a support order petitions to increase child support, all other natural born and adopted children of the non-custodial parent may be considered in determining whether to increase the support order.
Here, the District Court correctly applied the guideline. Although not labeled a petition to increase child support, the mother sought a child support increase from an existing support order. Therefore, in determining the increase, the District Court correctly considered the father’s other natural bom and adopted children. The District Court had the discretion to consider the father’s present family support obligations. Accordingly, we hold that the District Court correctly interpreted the law in its determination to increase the child support.
3. Did the District Court properly implement 46.30.1508(2), ARM, in not adding the father’s bonus to his gross income?
The mother argues that the father’s bonuses should have been included in his gross income and thus figured in the child support calculations. On the other hand, the father contends that the District Court correctly applied 46.30.1508(2), ARM, in excluding his bonuses from his gross income. 46.30.1508, ARM, states in part:
DETERMINATION OF GROSS INCOME
(1) In determining for each parent the resources which can be made available for child support, the following considerations apply:
(a) “gross income” means income from any source, except as excluded in subsection (d), and includes but is not limited to income from salaries, wages, commissions, bonuses, earnings, profits, dividends, severance pay, pensions, pre-retirement distributions ...
(2) In determining a parent’s gross income, do not consider income attributable to subsequent spouses .... If a person with a subsequent family has income from overtime or a second job, that income is presumed to be for the use of the subsequent family, and is not included in gross income for the purpose of determining support for a prior family. The presumption may be rebutted upon showing that the additional income is discretionary.
The District Court found that the father’s base income was $44,055 a year, but that he could obtain an additional sum based on merit and extra time spent on the job. The court also found that the father was a salaried employee in a supervisory position.
We conclude that because the father is a salaried employee in a supervisory position, he works extra hours as any supervisory employee would and does not earn the additional sum of money “from overtime or a second job”. We are not persuaded that his bonus, which is strictly performance related, should be deemed a “second job income” or “overtime” used for the support of his second family under the guideline. Clearly his bonus is simply that, a bonus, which should be added to his gross income and considered part of his gross income. We hold that the District Court erred in its interpretation of the guideline. Accordingly, we reverse and remand to the District Court for a determination of child support consistent with the guideline.
Affirmed in part, reversed in part, and remanded for farther proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and HUNT concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
Appellant State of Montana (State) appeals the decision of the First Judicial District Court, Lewis and Clark County, enjoining the secretary of state from presenting to the electors an official ballot containing the legislative referendum known as Senate Bill 37, which sought to amend the Montana Constitution to eliminate the office of secretary of state. On July 18, 1996, this Court issued an order affirming the judgment of the District Court, a copy of which is appended. This opinion explains the reasons for that order.
The 1995 session of the Montana Legislature passed Senate Bill 37 as a referendum to be presented to the electorate during the November 1996 general election. The referendum sought to amend the Montana Constitution to eliminate the office of secretary of state. In its final form, the measure provided that all but three of the duties of the office of secretary of state were to be transferred to the Lieutenant Governor. Two of the remaining duties would be transferred to other officials, due to legislative concern that assigning them to the Lieutenant Governor would concentrate too much power in the Governor’s office.
However, one of the duties which is constitutionally assigned to the secretary of state was overlooked. Article IV, Section 7(3) of the Montana Constitution provides:
If [an] election on an initiative or referendum properly qualifying for the ballot is declared invalid because the election was improperly conducted, the secretary of state shall submit the issue to the qualified electors at the next regularly scheduled statewide election unless the legislature orders a special election.
Senate Bill 37 did not provide for the deletion of this section from the constitution, nor did it provide for the transfer of this particular duty to another office.
Following the passage of Senate Bill 37 by the legislature, Representative John Cobb filed suit to prevent the secretary of state from submitting the referendum to the electorate. Representative Cobb alleged that the injunction should be granted because the bill’s title and statements of implication were unclear and misleading, and because the bill violated the one bill-one subject rule.
The District Court concluded that the formal title of the bill was not unclear or misleading. It further concluded that the bill did not violate the one bill-one subject rule. However, the District Court concluded that the statements of implication were misleading because they did not inform the voters that one duty of the secretary of state was not transferred anywhere, or that one reference to the secretary of state remained in the constitution. In addition, the District Court determined that the referendum was faulty because its passage would leave a defect in the constitution which could not be remedied except by another election.
The State appeals this decision, and Representative Cobb cross-appeals the District Court’s determination that Senate Bill 37 is not constitutionally flawed in other respects. Because we affirm the District Court’s determination that the bill is fatally flawed for the reason given, we need not consider whether it contains other errors as well. We therefore will not consider the issues raised in the cross-appeal.
Section 3-5-302(6)(a), MCA, provides:
[A] contest of a ballot issue submitted by initiative or referendum may be brought prior to the election only if it is filed within 30 days after the date on which the issue was certified to the governor, as provided in 13-27-308, and only for the following causes:
(i) violation of the law relating to qualifications for inclusion on the ballot;
(ii) constitutional defect in the substance of a proposed ballot issue; or
(iii) illegal petition signatures or an erroneous or fraudulent count or canvass of petition signatures.
Representative Cobb brought suit within the 30 days provided and alleged that the proposed ballot issue contains a substantive constitutional defect. The District Court agreed. On appeal, the State points out that pre-election challenges to initiatives or referenda are generally viewed with disfavor. It also argues that the defect complained of is not a substantive one, and, therefore, no pre-election judicial review is allowed under § 3-5-302(6)(a), MCA.
Judicial intervention in referenda or initiatives prior to an election is not encouraged. As this Court has noted,
to effectively protect and preserve the right which Montanans have reserved to themselves to change the laws of this State through the initiative process, pre-election judicial review should not be routinely conducted.
State ex rel. Boese v. Waltermire (1986), 224 Mont. 230, 234, 730 P.2d 375, 378. The State contends that such judicial review is only proper where the initiative or referendum was not properly submitted under the election laws or where the initiative was unconstitutional on its face. State ex rel. Montana Citizens for the Preservation of Citizens’ Rights et al. v. Waltermire (1986), 224 Mont. 273, 276, 729 P.2d 1283, 1285. See also State ex rel. Montana School Board Association v. Waltermire (1986), 224 Mont. 296, 729 P.2d 1297; Boese, 730 P.2d 375. Here, improper submission of the bill was not alleged and is not an issue. Further, the District Court specifically concluded that Senate Bill 37 is not unconstitutional on its face. Under these circumstances, the State contends that pre-election judicial review is not appropriate.
Montana Citizens for the Preservation of Citizens’ Rights and the other similar cases cited by the State are not strictly on point. All are cases where this Court was asked to assume original jurisdiction over a pre-election challenge, without the issue first being addressed by a district court. Here, the matter was presented to and decided by the District Court and comes before this Court on appeal. We therefore are not determining whether assumption of original jurisdiction is appropriate. Furthermore, these cases merely list the reasons for which we have exercised original jurisdiction and granted such petitions in the past; they in no way foreclose the ability of this Court to grant relief on other grounds should sufficient reason exist to do so. Beyond that, the State’s argument ignores § 3-5-302(6)(a), MCA, which allows judicial review in cases involving a substantive constitutional defect, not just in cases where the measure is unconstitutional on its face. Representative Cobb alleged a substantive constitutional defect in the referendum. While such pre-election challenges will be closely scrutinized, they are nevertheless permitted under the plain language of § 3-5-302(6)(a), MCA.
The State nevertheless argues that the District Court erred by enjoining the presentation of Senate Bill 37 to the electorate. The State contends that § 3-5-302(6)(a), MCA, is not applicable in this case because the defect complained of is not a substantive one.
Nothing in Senate Bill 37 as presented creates an obvious constitutional problem. The problem arises not from what was included but, rather, from what was omitted. The failure of the bill to address Article IV, Section 7(3), of the Montana Constitution or to dispose of the duty contained therein would leave an obvious defect in the constitution. The bill purports to abolish the office of secretary of state but leaves one duty assigned to that office, with no provision for who must assume that duty. The State contends that this is not a substantive constitutional defect because the legislature could define the term “secretary of state” as used in Article IV, Section 7(3) and reassign the duty. It further contends that the defect could also be cured by addressing it through another referendum at a later election. The existence of such remedies, it argues, means the defect is not one of substance but only of form. We disagree.
The difference between a defect of form and a defect of substance is not dictated by the ease or availability of a remedy. As the State noted, a defect of form is “[a]n imperfection in the style, manner, arrangement, or non-essential parts of a legal instrument” while a defect of substance is “[a]n imperfection in the body or substantive part of a legal instrument” including “the omission of something which is essential to be set forth.” Black’s Law Dictionary (6th ed. 1991) at 419. We cannot construe the failure to remove a reference to and a duty of the office ostensibly abolished to be merely a problem of style or arrangement. Instead, it is exactly “the omission of something which is essential to be set forth.”
Moreover, we are not persuaded that the hypothetical remedies presented would in fact solve the problem. The State argues that the legislature can define what is meant by the term “secretary of state” as used in the constitution. The State does not, however, explain how the legislature itself could do this. The constitution may only be amended by a vote of the people. Art. XIV, Sec. 8 and 9, Mont.Const. It is unclear how the State imagines the legislature could define a term in the constitution without first presenting the matter to the people, when, as here, the definition chosen would change the effect of the section in which the term is included. In any case, it would be a futile and inconsistent exercise to abolish the office of secretary of state and then go back and attempt to define that which has just been abolished.
The State further contends, however, that the defect could by cured by presenting another referendum to the people at a later election prior to the January 1, 2001, effective date of Senate Bill 37. But this is not a guaranteed solution; if the electorate voted in favor of the first referendum but against the second, the constitutional defect would remain in place.
Affirmed.
JUSTICES GRAY, NELSON, ERDMANN, LEAPHART and TRIEWEILER concur.
|
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
Appellant, Edward Killoy, Jr. (claimant), appeals the Workers’ Compensation Court’s order concluding that he was not permanently totally disabled and, therefore was not entitled to permanent total disability benefits as a result of his work-related injury.
We reverse and remand.
Appellant raises the following issues for review, which we restate as follows:
1. Did the Workers’ Compensation Court err in finding that claimant had a reasonable prospect of being able to tolerate his pain and physically perform at regular employment?
2. Did the Workers’ Compensation Court err in failing to award claimant attorney’s fees and costs pursuant to §§ 39-71-611 and 39-71-2907, MCA?
FACTS
At the time of trial, claimant was 58 years old. He did not graduate from high school but did obtain a GED while in the Navy. Claimant has worked since 1962 as a heavy-duty mechanic for various employers. He went to work fiill-time for Rhone-Poulenc Basic Chemicals in 1991.
Claimant was injured in the course and scope of his employment on August 20,1993, when a heavy shaker screen fell on his head and jammed his neck. At the time of the injury, Rhone-Poulenc was insured by Reliance National Indemnity (Reliance). Reliance accepted liability for claimant’s injury and has paid out his medical benefits, as well as temporary total disability benefits.
Following his injury, claimant was initially examined by Dr. Knutsen. X-rays showed “[degenerative disc changes, spurring, and some narrowing of the lower foramina.” Dr. Khutsen prescribed physical therapy and medication, and directed that claimant be placed on light-duty.
On August 27,1993, claimant told Dr. Knutsen that the light-duty work was aggravating his neck. Dr. Khutsen advised him to take a full week off. He continued to treat claimant conservatively, prescribing bed rest, physical therapy, cervical traction, and medication. After his condition deteriorated, claimant was referred to Dr. Dewey for a second opinion.
Following an examination on October 14, 1993, Dr. Dewey determined that claimant suffered from “significant cervical canal stenosis at L4-5, 5-6, and 6-7 [sic]. There is degenerative disease at these levels, some neuroforaminal encroachment.” All parties agree that the reference to the lumbar disc, however, appears to be in error, and should refer to the cervical level. Dr. Dewey examined claimant again on November 9, 1993, at which time he reported that claimant was much improved and felt that decompression surgery was unwarranted. Dr. Dewey advised claimant to continue his stretching exercises and to return for a examination the following year to determine whether his spinal stenosis was progressing.
By November 16, 1993, both Dr. Knutsen and Dr. Dewey had released claimant to work full-time. Dr. Khutsen cautioned claimant to avoid any trauma to or hyperextension of his neck. Claimant returned to work, but experienced increasing pain. Dr. Khutsen took claimant back off of work on December 14, 1993, until his condition improved. Claimant returned again on January 3, 1994.
On February 18, 1994, Claimant was pulling on a cable at work when the cable slipped and hit him in the face. This incident resulted in a violent jolting of his head which aggravated claimant’s original injury. After this, claimant felt he could no longer perform at his heavy labor position. Dr. Knutsen agreed but again sent claimant to Dr. Dewey for a second opinion.
On March 14,1994, Dr. Dewey wrote Dr. Knutsen a report regarding his examination of claimant. Dr. Dewey noted muscular symptoms in claimant’s neck, shoulder area, and at the base of his skull. He recommended a month of very aggressive stretching, supplemented by deep heat, ultrasound, and massage by a physical therapist. Dr. Dewey was unable to state whether claimant would be able to return to his time-of-injury job.
Dr. Dewey saw claimant again on April 18, 1994. Claimant’s condition had not improved, and Dr. Dewey concluded that claimant could not return to his time-of-injury position. Dr. Dewey identified several problems:
Cervical spondylosis; radiculopathy not identified; cervical stenosis, possible but not proven cervical radiculopathy; bilateral ulnar entrapment neuropathies; significant cervical myospasm ...
At this point, Dr. Dewey did not feel that claimant would get any better, he noted that claimant’s condition may in fact worsen over time.
Both at trial and by deposition, claimant testified that he experiences constant pain from the base of the skull, down the middle of the back through his shoulders. He has headaches and muscle spasms. Claimant’s level of pain is aggravated both by increased activity as well as by remaining stationary for any length of time. Claimant finds temporary relief from pain by using a stretching apparatus for his neck and performing stretching exercises on a daily basis. On “bad” days, he seeks relief through hot showers and a heating pad. Claimant has not worked since he re-aggravated his injury in February 1994.
In August 1993, Rhone-Poulenc retained a certified rehabilitation counselor to perform medical case management services relative to claimant’s injury. The counselor, Patricia Hink, submitted a preliminary report in which she encouraged claimant to apply for social security benefits which he subsequently applied for and received. Later, Hink identified several jobs as possibly suitable for claimant and submitted job analyses to Dr. Dewey for review. Dr. Dewey approved of four of the positions, stating that if a patient such as claimant had expressed a desire to try one of these positions, that, in his opinion, these positions could be “safely attempted” without risk. Dr. Dewey, however, did not offer his opinion as to whether claimant was capable of doing these positions, stating instead that only the patient was able to answer that question.
Based on Hink’s “Employability Assessment Report,” the insurer converted claimant’s benefits from temporary total disability to permanent partial disability on May 27,1995. On June 9,1995, claimant petitioned the Workers’ Compensation Court for a hearing. After the hearing in August 1995, the Workers’ Compensation Court found that claimant’s testimony regarding his pain was credible. However, the court was not persuaded that his pain would necessarily preclude claimant from working. The court then concluded that RhonePoulenc had met its burden of establishing that claimant had a reasonable prospect of “physically performing regular employment.” The Workers’ Compensation Court concluded that claimant was not permanently totally disabled and, therefore was not entitled to corresponding benefits.
Claimant appeals from that decision.
DISCUSSION
Did the Workers’ Compensation Court err in finding that claimant had a reasonable prospect of being able to tolerate his pain and physically perform at regular employment?
Decisions of the Workers’ Compensation Court must be based on substantial credible evidence. O’Brien v. Central Feeds (1990), 241 Mont. 267, 271, 786 P.2d 1169, 1172. The court’s findings of fact will be upheld if they are supported by substantial credible evidence. Wunderlich v. Lumbermens Mutual Casualty Co. (1995), 270 Mont. 404, 408, 892 P.3d 563, 566.
The law in effect at the time of the injury governs the claimant’s entitlement to benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Claimant was injured on August 20, 1993, therefore, the 1993 version of the Workers’ Compensation Act governs this case. The claimant bears the burden of proving he or she was permanently totally disabled. Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105.
The definition of permanent total disability reads as follows:
“Permanent total disability” means a condition resulting from injury as defined in this chapter, after a worker reaches maximum medical healing in which a worker does not have a reasonable prospect of physically performing regular employment. Regular employment means work on a recurring basis performed for remuneration in a trade, business, profession, or other occupation in this state. Lack of immediate job openings is not a factor to be considered in determining if a worker is permanently totally disabled.
Section 39-71-116(13), MCA (1993) (emphasis added).
In its decision, the Workers’ Compensation Court found that appropriate jobs existed for claimant. The rehabilitation counselor, Hink, identified several jobs as possibly suitable for regular employment: lubrication technician, sewer (sewing backpacks), shoe repair person, cashier, motel clerk, lumber salesperson, and meter reader. Of these positions, the Workers’ Compensation Court narrowed the list, and determined that claimant was physically capable of performing as either a motel clerk or a cashier.
At trial, claimant disputed his ability to perform any of the suggested positions. According to his testimony, his pain makes him uncontrollably unpleasant. Claimant specifically contended that because of his pain it would be difficult for him to be confined to the limited space provided to a cashier, or to carry luggage if employed as a motel clerk.
The Workers’ Compensation Court did not dispute that claimant was in pain and that activity increased his pain, rather the court was not convinced that this would prevent him from working. Instead, the court found claimant to be a positive and up-beat person who had “worked all his life and has a good work ethic, and [the court] was persuaded [that claimant] would cope with his pain if he was forced to do so.” Ultimately, the court found that claimant had a reasonable opportunity for regular employment.
On appeal, claimant argues that the Workers’ Compensation Court erred in this finding. Claimant asserts that it is the law in Montana that pain can be considered when determining whether a claimant is permanently totally disabled. Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 521-22, 575 P.2d 67, 72 and Jensen v. Zook Brothers Construction Co. (1978), 178 Mont. 59, 63, 582 P.2d 1191, 1193.
In Robins, the claimant fractured his skull and other bones after falling 16 to 18 feet. He returned to work, then fell a second time and injured his back. There, one doctor stated that the claimant could work, if he could endure the pain. The other doctor testified that the claimant could not work because he could not take the pain. In affirming the lower court, this Court held that pain must be considered as a factor when determining disability. Robins, 575 P.2d at 71.
In Jensen, the claimant crushed his dominant hand. The claimant testified that he had pain up his arm into his elbow. Following Robins, this Court held that the evidence showing that the claimant could not work without pain or endure pain while working constitutes substantial evidence supporting a finding of permanent disability. Jensen, 582 P.2d at 1193.
In its decision, the Workers’ Compensation Court considered both Jensen and Robins, nevertheless, the court determined that under recent revisions to the permanent total disability statute, pain is only one factor to be considered when determining a claimant’s disability. Metzger v. Chemetron Co. (1984), 212 Mont. 351, 354, 687 P.2d 1033, 1035. Under 1993 revisions to the definition of permanent total disability, the court noted that the claimant must prove that he or she has “no reasonable prospect of physically performing regular employment.” Section 39-71-116 (13), MCA.
This Court agrees with the Workers’ Compensation Court’s conclusion that pain is only one factor to be considered when reaching a determination of disability. As was also aptly pointed out by the court in this case, “Pain ... may be so severe for some individuals that it renders them physically incapable of performing their job duties.
In its order, the Workers’ Compensation Court relies on the “medical evidence concerning permanent total disability.” This medical evidence, the court states, was provided by Dr. Dewey, “who approved of five positions.” The court concluded further, that Dr. Dewey’s testimony did not support claimant’s claim for disability. However, where medical testimony is offered by deposition, this Court is in as good a position as the Workers’ Compensation Court to determine its weight. Caekaert v. State Comp. Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498. Although Dr. Dewey did approve of several of the suggested positions, this was not the extent of the medical testimony.
In his deposition, Dr. Dewey specifically qualified his approval and made no determination concerning claimant’s ability to cope with pain. At trial, the court pointed this out:
THE COURT: ... [Dr. Dewey] basically said medically [claimant’s] not going to be at risk. In other words, he’s not at risk with further injuring himself in these jobs, but whether or not he performs them is really up to him.
Dr. Dewey testified that claimant could safely attempt the jobs without risk, his opinion does not support a finding that claimant was physically capable of performing regular employment.
Furthermore, Dr. Dewey testified that he considered claimant’s response to his neck injury as “appropriate.” Accordingly, Dr. Dewey testified that he would defer to claimant regarding his ability to tolerate the pain associated with a suggested position. Therefore, according to the medical opinion of Dr. Dewey, the claimant in this case stands in the best position to judge his abilities.
Other medical evidence was provided through the records of Dr. Knutsen. Throughout his records, Dr. Knutsen notes that claimant experienced chronic neck pain. Following claimant’s re-aggravation in February, Dr. Knutsen noted that he did not think claimant would be able to return to his regular job. In a letter to the insurer, Dr. Knutsen wrote that “[s]ometimes the slightest little neck jolt or bump on the head will markedly aggravate his chronic neck pains.”
Following Jensen and Robins, this Court must consider the evidence regarding claimant’s pain when reviewing the Workers’ Compensation Court’s determination of disability. In this case, the medical evidence does not support the court’s finding that claimant was capable of working without pain or that he was capable of enduring his pain while working. See Jensen, 582 P.2d at 1192.
We conclude that the record does not contain substantial credible evidence supporting a finding that claimant has a reasonable prospect of physically performing regular employment. In this matter, not only did Dr. Dewey testify that he considered claimant’s response to his injury as appropriate, the court also found that “[claimant’s] testimony regarding his pain was credible.” Considering this, both at trial and in his deposition, claimant testified that he experiences constant pain from the base of the skull, down the middle of the back through his shoulders. He described headaches and muscle spasms. His level of pain increases if he engages in any increased activity or if he is stationary for any length of time. On “bad” days, he seeks relief through hot showers and uses a heating pad.
It is evident from this testimony that claimant’s pain would prevent him from holding down regular employment. This Court has held that a trial court may not disregard uncontradicted credible evidence. Burns v. Plum Creek Timber (1994), 268 Mont. 82, 85, 885 P.2d 508, 510 (citing McGuire v. American Honda Co. (1977), 173 Mont. 171, 566 P.2d 1124.)
In its order denying claimant’s motion for rehearing, the court raises concerns that because pain is subjective, claimants would unilaterally determine that they cannot work. That may or may not be the case but that is not the situation here. Claimant’s testimony was corroborated by medical evidence offered by both Dr. Dewey and Dr. Knutsen. Furthermore, claimant’s testimony regarding his pain was found to be credible by both Dr. Dewey and the court.
In summary, we conclude that uncontroverted testimony presented at trial supports a finding that claimant is unable to perform at any óf the suggested positions without experiencing substantial pain. Furthermore, we conclude that the Workers’ Compensation Court erred in concluding that claimant is capable of tolerating his pain and physically performing at regular employment.
Having concluded the claimant is entitled to benefits, we remand this case for a determination of attorney’s fees and costs pursuant to §§ 39-71-611 and 39-71-2907, MCA.
Reversed and remanded.
JUSTICES TRIEWEILER, NELSON and LEAPHART concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
This is an appeal and cross appeal from the Eleventh Judicial District Court, Flathead County. Following a nonjury trial and view of the disputed road, the District Court awarded private prescriptive easement rights to Plaintiffs Roger and Joanne Kessinger, Defendants Donald and Joan Matulevich, and two nonparty witnesses, John Winnie and Tom Beeson, over the disputed road. Plaintiffs appeal and Defendants cross appeal. We affirm in part and reverse in part.
We address the following issues on appeal:
1. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Defendants Donald and Joan Matulevich?
2. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question by two nonparties and their successors in interest?
We address the following issues on cross appeal.
3. Did the District Court err in finding that the general public had not used the road in question sufficiently to ripen into a public prescriptive easement?
4. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Plaintiffs Roger and Joanne Kessinger?
FACTUAL AND PROCEDURAL BACKGROUND
Rogers Lake is located approximately 30 miles west of Kalispell, Montana. Rogers Lake Road, a county road, provides access to the Rogers Lake area. At a point north of the properties of the Plaintiffs Roger and Joanne Kessinger (Kessingers) and Defendants Donald and Joan Matulevich (Matuleviches), Rogers Lake Road forks. The north fork provides public access to Rogers Lake while the south fork provides access to private property. Approximately one and one-half miles north of Kessingers’ property, the Rogers Lake Road ceases to be a county road and turns into a dirt and gravel road, commonly known as Rogers Lane. See Appendix A. Rogers Lane (the road) runs south and crosses the lakeshore properties of Matuleviches (Lots 12 and 13), Frank Bear (Lots 10 and 11) and Kessingers (Lots 1 through 9), respectively. After the road passes Kessingers’ property, the road becomes a trail and crosses U.S. Forest Service land, land owned by Plum Creek Timber Company and ultimately winds around Rogers Lake. This road provides the exclusive means of ingress and egress to and from Kessingers’ property.
In 1993, Kessingers unified ownership of Lots 1 through 9 which formerly had been owned in four separate tracts. Richard Siegfried (Siegfried) and Lawrence West (West) are two predecessors-in-interest to Kessingers’ property. Siegfried purchased Lots 4 through 9 in 1976 and West purchased Lot 3 in 1977. When purchased, both Siegfried and West’s lots were undeveloped. However, both fenced, gated and posted their respective properties within two years of purchase. Siegfried did so in 1977-1978 and West did so by 1979. Both used a three-strand barbed-wire gate to block access to the road. In addition to his gate, Siegfried erected an entry way to his property by placing a main cross beam atop two large timber poles on either side of the road. West, in addition to his gate, physically blocked the road with his pickup.
Siegfried built a home on his lots in 1979 and West built a home on his lot by 1980. Siegfried used his property mainly as a vacation residence, but did reside there permanently from 1989 to 1993. West lived on his property as a permanent resident from 1980 to 1985 and from 1987 to 1990. During their periods of occupancy, both Siegfried and West maintained their gates. Just as for the Kessingers now, the road was the only means for Siegfried and West to access their properties. Both Siegfried and West testified that they believed the road was private and that they erected and maintained the gates to keep the general public out. However, they both additionally testified that they did not object to their neighbors using the road to access the U.S. Forest Service and Plum Creek Timber Company land to the south of their properties.
Matuleviches first purchased a 10.35 acre parcel by Rogers Lake in 1973. Subsequently they purchased two lakeshore lots, one in 1974 and the other in 1983. During their vacations at Rogers Lake, Matuleviches used the road, as it crosses what is now Kessingers’ property, to access U.S. Forest Service land and Plum Creek Timber Company land for recreational purposes. Matuleviches used the road for a variety of recreational purposes such as to walk, sightsee, occasionally gather firewood and cross country ski. Additionally, prior to 1984, Matuleviches used the road to access a spring located on Plum Creek Timber Company property to gather drinking water in plastic jugs. However, in 1984, Matuleviches developed a deep well on their property and subsequently reduced their use of the spring for drinking water. Between 1973 and 1977, few other people lived in the same area as Matuleviches; consequently, no one objected to their use of the road. Matuleviches continued using the road after Siegfried and West purchased their lots and placed gates across the road, without objection from either owner.
Additional neighbors, John Winnie (Winnie) and Tom Beeson (Beeson), also used the road to access the U.S. Forest Service land and Plum Creek Timber Company land. Winnie purchased his prop erty in 1973, while Beeson did not purchase his property until 1983. Like Matuleviches, Winnie and Beeson used the road for recreational purposes only. As seasonal residents, Winnie and Beeson used the road to do such things as walk, sightsee, cross country ski and collect water from the spring on Plum Creek Timber Company land. While they used the road despite Siegfried and West’s gates, they testified that they honored the gates by leaving them as they found them.
Kessingers initiated this suit in the District Court for the Eleventh Judicial District, Flathead County. In a effort to secure legal access to their property, Kessingers brought a quiet title action alleging a private prescriptive easement over a road crossing the property of Matuleviches and Bear. Kessingers further sought an injunction to prevent Matuleviches or Bear from interfering with Kessingers’ right to use the road. Matuleviches counterclaimed alleging that they, or alternatively the public, had a prescriptive easement over the road as it crosses Kessingers’ property. Bear similarly answered, but subsequently Bear and Kessingers resolved the issues between them by mutual settlement and the District Court dismissed the claims between them with prejudice.
Following a bench trial and view of the road in dispute, the District Court entered judgment awarding Kessingers a private prescriptive easement over the road as it crosses Matuleviches’property. Additionally, the District Court awarded Matuleviches and two nonparties, John Winnie and Tom Beeson, private prescriptive easements over the road as it crossed Kessingers’ property. From that judgment, Kessingers appeal and Matuleviches cross appeal. We affirm in part and reverse in part.
Our standard of review for a district court’s findings of fact is provided by Rule 52(a), M.R.Civ.R, which in part provides:
Findings of fact... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses ....
We have adopted the following three-part test to interpret this rule:
First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.”
Public Lands Access Ass’n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).
Our standard of review relating to a district court’s conclusions of law is whether the tribunal’s interpretation of the law is correct. Public Lands, 856 P.2d at 527.
A prescriptive easement is created by operation of law. Swandal Ranch Co. v. Hunt (1996), [276 Mont. 229], 915 P.2d 840, 843. When establishing either a public or private easement by prescription, the party claiming the prescriptive easement must show “open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.” Swandal, 915 P.2d at 843. The statutory period is five years. Section 70-19-404, MCA. The burden is on the party seeking to establish the prescriptive easement to prove all elements of the prescription. Public Lands, 856 P.2d at 527. To establish a prescriptive right, the prescriptive claimant must show, by clear and convincing evidence, that the use was adverse and not by permission of the landowner. Kostbade v. Metier (1967), 150 Mont. 139, 143, 432 P.2d 382, 385.
DISCUSSION
1. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Defendants Donald and Joan Matulevich?
Kessingers argue that the District Court’s finding that Matuleviches had established a private prescriptive easement over the road in dispute as it crosses Kessingers’ land was not supported by substantial evidence. Kessingers contend that Matuleviches’ use of the road was not adverse, but rather based on permissive use. Further, Kessingers assert that the Matuleviches used the road only for access to recreational activities which could not give rise to a presumption of adverse use. Finally, Kessingers maintain that even if Matuleviches had established a private prescriptive easement prior to Siegfried and West purchasing their properties, Siegfried’s and West’s acts created reverse adverse possession and thereby destroyed any such easement. We agree.
The District Court stated in Finding of Fact No. 7 “[t]hat at no time during such use did [Matuleviches] ever seek permission for such use from either [Kessingers] or their predecessors in interest.” The District Court then went on to state in Finding of Fact No. 8 that Matuleviches’ use met all the requirements of a prescriptive easement, including that of adversity. We disagree. As a finding of fact, this is not supported by substantial evidence; as a conclusion of law, it is incorrect.
“To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owner of the land.” Public Lands, 856 P. 2d at 527 (citation omitted). “If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use.” Public Lands, 856 P. 2d at 527 (citation omitted).
“Neighborly accommodation is a form of permissive use which, by custom, does not require permission at every passing.” Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 186, 887 P.2d 724, 728 (citing Public Lands, 856 P.2d at 528). We have stated that:
A use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the use of a way by a neighbor was by express or implied permission of the owner, it was held that the continuous use of the way by the neighbor was not adverse and did not ripen into a prescriptive right.
Public Lands, 856 P.2d at 528 (quoting Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).
A property owner erecting a gate across a road located on his property provides strong evidence that use of the road past the gate is permissive only. We have stated that:
The fact that the passage of a road has been for years barred by gates or other obstructions to be opened and closed by the parties passing over the land, has always been considered as strong evidence in support of a mere license to the public to pass over the designated way.
Public Lands, 856 P.2d at 528 (quoting Maynard v. Bara (1934), 96 Mont. 302, 307, 30 P.2d 93, 95).
Siegfried and West both testified that they gated, fenced and posted their properties during the years 1977 to 1979 and enforced their gates throughout their periods of ownership. They both testified that the purpose of the gates was to keep the general public out. Further, while they actively discouraged the general public from using the road, they did not object to their neighbors’ continued use of the road for access to recreational activities on U.S. Forest Service and Plum Creek Timber Company land to the south of their properties. Moreover, while Matuleviches testified that they continued to use the road after the gates were in place, they also testified that their use of the road was a “neighborly thing” and that any discussion concerning Siegfried’s or West’s explicit permission for them to use the road “just never came up.”
Siegfried and West, by actively prohibiting the general public from using the road, but not objecting to their neighbors’ use, gave Matuleviches implied permission to use the road as it crossed their properties. This implied permission, based on a general attitude of “neighborly accommodation” prevented Matuleviches’ use of the road from ripening into a prescriptive easement.
The District Court in its Finding of Fact No. 6 states that Matuleviches used the road "... regularly under claim of right by foot, vehicle, recreational vehicle and cross country skis.” Substantial evidence supports this finding of fact that Matuleviches’ use of the road was for recreational purposes only and therefore could not, as a matter of law, raise the presumption of adverse use. Public Lands, 856 P.2d at 528-29.
Matuleviches testified that they were seasonal residents and used the road for recreational purposes. Prior to 1993, Matuleviches primarily walked along the road for a variety of recreational uses such as to hike, sightsee, occasionally gather firewood and cross country ski. Additionally, prior to 1984, Matuleviches used the road to access a spring located on Plum Creek Timber Company property to gather drinking water in plastic jugs. However, in 1984, Matuleviches developed a deep well on their property and subsequently reduced their use of the spring for drinking water. Matuleviches’ seasonal use of the road was only recreational. Recreational use is insufficient to raise a presumption of adverse use. Public Lands, 856 P.2d at 528-29. Therefore, Matuleviches did not establish a private prescriptive easement based on their recreational use of the road.
Finally, Kessingers maintain that even if Matuleviches had established a private prescriptive easement prior to Siegfried and West purchasing their properties, Siegfried’s and West’s acts of putting up gates and allowing Matuleviches to use the road based on permissive use destroyed such an easement. We also addressed this issue in Public Lands:
Section 70-17-111(3), MCA, provides that a servitude is extinguished “...(3) by the performance of any act upon either tenement by the owner of the servitude or with his assent which is incompatible with its nature or exercise [.]” We have held, on the basis of that statute, that if a prescriptive easement exists, subsequent acts inconsistent with the claim by prescription, support the conclusion that the prescriptive easement has been extinguished.
Public Lands, 856 P.2d at 531-32 (citations omitted). We further explained that the right hostile to the easement holder must be brought to the easement holder’s attention and the hostile use must continue for the full statutory period. Public Lands, 856 P.2d at 531. Based on the foregoing, we held that the defendants’ predecessors-in-interest had established reverse adverse possession. They performed a hostile act by blocking off the disputed road, and the purported owner of the easement, the public, adhered to a walk-in policy over a 17-year period. Consequently, any prescriptive easement the public may have established was lost. Public Lands, 856 P.2d at 532.
Similarly, Siegfried and West demonstrated hostile acts which were inconsistent with Matuleviches’ purported prescriptive easement. During the years 1977 to 1979, Siegfried and West gated, posted and fenced their properties. They enforced their gates to keep the general public out, but allowed Matuleviches access to the road based on neighborly accommodation. Matuleviches testified that they recognized the use of the road as a “neighborly thing.” For a period of over ten years, Siegfried and West allowed Matuleviches to use the road. Just as in Public Lands, Siegfried’s and West’s acts created reverse adverse possession. Therefore, any prescriptive easement Matuleviches may have established was lost.
We conclude that Matuleviches failed to establish a private prescriptive easement over the road as it crosses Kessingers’ property. Therefore, we reverse that part of the District Court’s judgment and order that grants a private prescriptive easement to Matuleviches.
2. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question by two nonparties and their successors in interest?
The District Court awarded private prescriptive easements over the disputed road to two nonparty witnesses, John Winnie and Tom Beeson, and their successors-in-interest. Kessingers assert that the District Court erred in granting a private prescriptive easement to Winnie and Beeson because they were not parties to this lawsuit. Kessingers argue § 25-9-201, MCA, allows a court to adjudicate only those rights between plaintiffs and defendants. Matuleviches argue that Winnie and Beeson, as members of the public, testified to help prove that a public prescriptive easement existed over Rogers Lane. Further, Matuleviches argue that based on Winnie’s and Beeson’s testimony the District Court could have decided to grant a public prescriptive easement, but simply “chose to restrict the ‘public easement’ to certain specified members of the public.”
We recently decided this issue in Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 879 P.2d 715. Aperson who is not a party to the action, cannot be a party to the judgment. Warnack, 879 P.2d at 718. In Warnack, we explained:
. [I]t is a fundamental principle of our jurisprudence that it is only against a party to the action that a judgment can be taken and that the judgment is not binding against a stranger to the action.
Warnack, 879 P.2d at 718 (citation omitted). This rule also applies to judgments awarded in favor of a nonparty. Warnack, 879 P.2d at 718. Furthermore, this fundamental principle underlays the language set forth in § 25-9-201, MCA:
Whose rights determined in judgment. Subject to the provisions of Rule 54(b) M.R.Civ.R, judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants, and it may, when the justice of the case requires, determine the ultimate rights of the parties on each side as between themselves.
Although Winnie and Beeson lived in the area of the disputed road and did testify as to their use of the road, they were not parties to this lawsuit. Accordingly, we reverse that part of the District Court’s judgment and order that grants a private prescriptive easement to John Winnie and Tom Beeson.
3. Did the District Court err in finding that the general public had not used the road in question sufficiently to ripen into a public prescriptive easement?
On cross appeal, Matuleviches argue that the public has a prescriptive easement right to use the road. Matuleviches contend that they, like Winnie and Beeson, are members of the public. Therefore, as members of the public, they have collectively used the road for twenty years in the same manner and thereby have established a public prescriptive easement over the road. We disagree.
In Issue 1, we held that Matuleviches failed to establish a private prescriptive easement because they used the road for recreational purposes based only on neighborly accommodation. Prescriptive easements may be proved by public or private use. However, in either case, the claimant must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d 166, 169 (overruled on other grounds). Therefore, just as the evidence of Matuleviches’ use of the road was not sufficient to establish a private prescriptive easement, this same evidence is not sufficient to establish a public prescriptive easement. Matuleviches used the road for recreational purposes based on neighborly accommodation. This kind of use will not establish a prescriptive easement.
Moreover, Matuleviches’ actions support a conclusion that they did not view the road as public, but rather that they also viewed the road as private. Matuleviches placed a “Private Road” sign along the road and indicated through their conduct that they felt the road was private and not open to the public. For example, Matuleviches did not sign a petition circulated in 1985-86 submitted to the Flathead County Commissioners to open the road as a county road. Matuleviches’ use and conduct concerning the road does not support a conclusion that the road is public, but rather that it is private.
In Issue 2, we held that Winnie and Beeson could not be granted a private prescriptive easement because they were not parties to this action. However, because Winnie and Beeson testified under Matuleviches’ claim that a public prescriptive easement existed, we will consider whether their use of the road contributed to the establishment of a public prescriptive easement.
Our holding and discussion in Public Lands is again directly on point. In Public Lands, plaintiffs asserted a public prescriptive easement over Dupuyer Canyon Road. However, we found that plaintiffs’ use of the road was not adverse, but instead due to neighborly accommodation. Public Lands, 856 P.2d at 528. We based this decision on the fact that defendant had erected gates across the disputed road and plaintiffs and other members of the public honored them by leaving the gates as they had found them. Public Lands, 856 P.2d at 528. Similarly, Winnie and Beeson honored the gates erected by Siegfried and West. When Winnie and Beeson traveled past the gates, they left them as they found them. That is, if the gate was closed when they came upon it, they would close it after passing through.
Furthermore, in Public Lands, we found that plaintiffs used the road only to gain access to recreational activities and that type of use failed to raise a presumption of adverse use. Public Lands, 856 P.2d at 528-29. Likewise, Winnie and Beeson used the road solely for recreational purposes such as walking, sightseeing, cross country skiing and collecting water from the spring on Plum Creek Timber Company land. This recreational use of the road could never establish adverse use. Consequently, the testimony of Winnie and Beeson did not demonstrate the establishment of a public prescriptive easement.
Matuleviches, Winnie and Beeson all used the road for recreational purposes with the implied permission of both Siegfried and West. Therefore, their combined use of the road was not adverse and, consequently, they failed to establish a public prescriptive easement. Accordingly, we affirm that part of the District Court’s judgment and order declaring that the general public did not establish a public prescriptive easement over the disputed road.
4. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Plaintiffs Roger and Joanne Kessinger?
On cross appeal, Matuleviches argue that if Matuleviches, Winnie and Beeson do not have a private prescriptive right to use the road, then Kessingers do not have a private prescriptive right either. Instead, Matuleviches assert that they had given Kessingers permission to use the road to access Kessingers’ property. We find this argument unpersuasive.
On appeal, Matuleviches bear the burden of establishing that the judgment of the District Court is erroneous. Walsh v. Ellingson Agency (1980), 188 Mont. 367, 373, 613 P.2d 1381, 1384. While Matuleviches assert that Kessingers’ use of the road was permissive, they fail to establish that the District Court’s findings in this regard are not supported by substantial evidence or are otherwise clearly erroneous; nor do they establish error by the District Court in interpreting the law. We will not presume error on the part of the District Court. Walsh, 613 P.2d at 1384. Accordingly, we affirm that part of the District Court’s judgment and order declaring that Kessingers are entitled to a private prescriptive easement over the road as it crosses Matuleviches’ property for the purposes of ingress and egress.
We affirm in part and reverse in part.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
Joseph Broken Rope, Jr. (Broken Rope) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on his guilty pleas to charges of carrying a concealed weapon, criminal possession of dangerous drugs and criminal possession of drug paraphernalia, having reserved the right to appeal the court’s denial of his motion to suppress. We reverse and remand.
The dispositive issue on appeal is whether the District Court erred in finding that a particularized suspicion existed to justify an investigative stop of Broken Rope under § 46-5-401, MCA.
The following facts are undisputed. On March 21,1995, at approximately 1:00 a.m., Deputy Kevin Evans (Evans) of the Yellowstone County Sheriff’s office was on patrol near the Lockwood Kwik Way convenience store in Billings, Montana. He observed a vehicle occupied by two individuals, later identified as Elton Belgarde (Belgarde) and Broken Rope, traveling west on Highway 87 East. Evans ran the vehicle’s license number through a records check which revealed that the vehicle was registered to Belgarde and that a warrant had been issued for his arrest for fish and game violations.
When Belgarde and Broken Rope arrived at the Kwik Way, they left the vehicle and went inside the store. Evans watched the two men from his patrol car, planning to wait until they were back in their vehicle before approaching them. Belgarde and Broken Rope exited the store after a short time. When they noticed Evans, they began using the telephone, moving around in the store’s parking lot, and staring at Evans. Evans decided that Belgarde and Broken Rope were not going to get back into Belgarde’s vehicle while he was present, so he radioed his backup, Deputy M. J. Mullikin (Mullikin), for assistance.
When Belgarde and Broken Rope saw Evans and Mullikin drive into the immediate area, they began putting their hands into their pockets. The deputies told them to keep their hands out of their pockets and, when Broken Rope attempted a second time to put his hands into his pockets, the deputies told him again to keep his hands out of his pockets. Evans then arrested Belgarde on the outstanding fish and game warrant.
Mullikin frisked Broken Rope and asked him if he had any weapons, knives or needles on his person. Broken Rope said that he had a knife in his belt. In addition to the knife, Mullikin found a .38 caliber Smith & Wesson handgun in Broken Rope’s waistband under his shirt. When asked about additional weapons or drugs, Broken Rope said that he had some marijuana in his pants pocket. Mullikin searched Broken Rope a second time and felt a hard object in Broken Rope’s pants pocket which Broken Rope identified as a marijuana pipe. Evans also searched Broken Rope and, in addition to the marijuana pipe containing suspected marijuana residue, he found a black canister containing a white powdery substance in Broken Rope’s other pants pocket. Broken Rope was taken to the Yellowstone County detention facility and booked. Evans then removed the back seat of his patrol car and found a baggie containing a rock-like substance under where Broken Rope had been sitting.
The State of Montana (State) charged Broken Rope by information with the felony offenses of carrying a concealed weapon and criminal possession of dangerous drugs, and the misdemeanor offense of criminal possession of drug paraphernalia. After pleading not guilty, Broken Rope moved to suppress the evidence seized by the deputies. The parties agreed that the District Court could decide the issue without a hearing, and the court subsequently denied Broken Rope’s motion.
Broken Rope later pled guilty to the charged offenses, reserving the right to appeal the court’s denial of his motion to suppress. The District Court entered judgment and sentence and Broken Rope appealed. The court and the parties filed an “Agreed Statement of Facts for Record on Appeal” pursuant to Rule 9(e), M.R.App.P.
Did the District Court err in finding that a particularized suspicion existed to justify an investigative stop of Broken Rope under § 46-5-401, MCA?
In denying Broken Rope’s motion to suppress, the District Court found that Evans had a particularized suspicion, based on his training and experience as a peace officer and Broken Rope’s actions, that Broken Rope had been or was engaged in criminal activity. On that basis, the District Court concluded that the investigative stop and search of Broken Rope was justified and denied the motion to suppress.
Broken Rope contends that the District Court’s finding regarding Evans’ particularized suspicion to justify the investigative stop pursuant to § 46-5-401, MCA, is clearly erroneous and, therefore, that the court erred as a matter of law in applying the statute and denying his motion to suppress. We review such findings of fact by a district court to determine whether they are clearly erroneous; we review a district court’s conclusions of law to determine whether they are correct. See Bauer v. State (1996), 275 Mont. 119, 122, 910 P.2d 886, 888; State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).
When a law enforcement officer seizes a person, such as in an investigative stop, the right against unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution applies. Bauer, 910 P.2d at 889. As a result, the Montana legislature amended Montana’s investigative stop statute in 1991 to conform with both United States Supreme Court and Montana Supreme Court case law on that subject. State v. Reynolds (1995), 272 Mont. 46, 49, 899 P.2d 540, 542. Section 46-5-401, MCA, provides:
Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
(Emphasis added.)
In light of the requirement that some objective manifestation must exist to support a particularized suspicion that a person is engaged in criminal activity before a stop can be made, we have adopted a two-part test to determine whether an officer had sufficient cause to stop a person. Anderson v. State Dept. of Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214 (citing State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293). First, the State must establish objective data from which an experienced officer can make certain inferences. Second, the State must show a resulting suspicion that the person is, or has been, engaged in wrongdoing or was a witness to criminal activity. Anderson, 912 P.2d at 214. Whether a particularized suspicion exists is a question of fact which is dependent on the totality of the circumstances. Anderson, 912 P.2d at 214 (citing Reynolds, 899 P.2d at 542-43).
The initial, and primary, thrust of the analysis is whether objective data existed from which an experienced officer could conclude that the person stopped is, or has been, engaged in criminal activity. In Bauer, for example, the deputy observed Bauer driving well over the speed limit, crossing the center line more than once and braking hard around curves. Bauer, 910 P.2d at 887, 890. We concluded that, under the totality of the circumstances, the evidence supported the deputy’s particularized suspicion that Bauer had committed an offense. Bauer, 910 P.2d at 890.
Similarly, in Anderson, the officer testified that she saw Anderson shuffle and stumble toward his car between 1:00 a.m. and 2:00 a.m. and fail to use his vehicle’s turn signals at every turn for several blocks; in addition, he did not stop when she asked him to. Anderson, 912 P.2d at 213. The officer also testified that, even from ten to fifteen feet away, she could smell a very strong odor of intoxicants emanating from Anderson. Anderson, 912 P.2d at 213. Those facts were sufficient, under the totality of the circumstances, to support the officer’s particularized suspicion that Anderson had committed the offense of driving under the influence of alcohol. Anderson, 912 P.2d at 215.
In other cases, however, this Court has held, under the totality of the circumstances, that the evidence did not support a particularized suspicion that the person stopped had committed, or was committing, an offense. In Reynolds, the deputy sheriff testified that he observed a pickup moving through an intersection “bordering on traveling too fast” for the conditions and hesitating seven to ten seconds at the intersection where the deputy was waiting, but that the driver had not necessarily violated the law. Reynolds, 899 P.2d at 542-43. Other than those observations, the deputy did not see any violations of the law and Reynolds did not exhibit behavior consistent with a person driving while under the influence of alcohol. Reynolds, 899 P.2d at 543. We concluded that, under the totality of the circumstances, a possible traffic violation — in the absence of any other objective evidence of criminal activity — did not support a particularized suspicion that Reynolds had been engaged in wrongdoing. Reynolds, 899 P.2d at 543. On that basis, we held that the investigative stop was not justified under § 46-5-401, MCA. Reynolds, 899 P.2d at 543.
In the present case, the objective data Evans observed was Broken Rope entering and leaving the Kwik Way at approximately 1:00 a.m., using the telephone, moving around in the Kwik Way parking lot, putting his hands in his pockets, and staring at Evans. These actions do not support a particularized suspicion that Broken Rope was, or had been, engaged in criminal activity.
The State contends that Evans and Mullikin also relied on the existence of an outstanding warrant for “one of the men” as objective data supporting their investigative stop and search of Broken Rope. However, the undisputed fact is that the warrant for fish and game violations was for Belgarde, not for Broken Rope. The State cites to no authority under which a person merely being in the company of someone for whom an arrest warrant has been issued is sufficient— on either a stand-alone basis or in conjunction with objective data of the type that existed in this case — to create a particularized suspicion that that person had committed, or was committing, an offense so as to justify an investigative stop.
The State also contends that the deputies could draw upon their training and experience as peace officers to conclude that Belgarde and Broken Rope were acting in a suspicious and nervous manner, thereby justifying an investigative stop. At the outset, we observe that the agreed facts before us contain no information about the deputies’ training and experience or how such training and experience could lead them to conclude that Belgarde and Broken Rope’s activities were “suspicious” and “nervous.” Indeed, no agreed fact states that the deputies reached such a conclusion.
Moreover, there is nothing inherently suspicious about Broken Rope using a pay telephone, moving around in a convenience store parking lot, putting his hands in his pockets or staring at a sheriff’s deputy. As to whether these activities were “nervous,” many law-abiding citizens may well be nervous when their activities are being watched by law enforcement officers. On this record, Broken Rope’s actions did not form the basis for inferences resulting in a particularized suspicion that Broken Rope was, or had been, engaged in criminal activity.
We conclude that, under the totality of the circumstances, the record is insufficient to support the District Court’s finding that Evans had a particularized suspicion that Broken Rope was engaged in criminal activity; therefore, the court’s finding is clearly erroneous. On that basis, we further conclude that the District Court erred in determining that the investigative stop of Broken Rope was justified pursuant to § 46-5-401, MCA.
The remainder of the State’s arguments relate to the officers’ entitlement to “frisk” a person and seize certain objects pursuant to § 46-5-402, MCA. According to the State, however, § 46-5-402, MCA, applies “[o]nce a peace officer has lawfully stopped a person under § 46-5-401 ....” Based on our conclusions that no particularized suspicion existed and that the investigative stop of Broken Rope was not justified under § 46-5-401, MCA, we need not address the remainder of the State’s arguments.
We hold that the District Court erred in denying Broken Rope’s motion to suppress.
Reversed and remanded for further proceedings consistent with this opinion.
JUSTICES TRIEWEILER, HUNT and NELSON concur.
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
Troy Michael Jones (Jones) appeals from the judgment and sentence entered by the Seventh Judicial District Court, Richland County, on a jury verdict finding him guilty of the offense of felony assault. We reverse and remand.
The dispositive issue on appeal is whether the District Court abused its discretion in denying Jones’ counsel’s motion to withdraw.
The State of Montana (State) charged Jones with felony assault, in violation of § 45-5-202, MCA, alleging that Jones purposely or knowingly caused bodily injury to Kirby Sowers (Sowers) by striking Sowers “about the head and face with a beer bottle....” T. R. Halvorson (Halvorson) was appointed to represent Jones and, thereafter, Jones pled not guilty to the charged offense. Trial was set for November 3, 1994. Two days prior to trial, Halvorson moved to withdraw as Jones’ counsel. The State opposed the motion and requested an evidentiary hearing on the grounds for withdrawal.
The hearing on Halvorson’s motion to withdraw as Jones’ counsel was not, strictly speaking, an evidentiary hearing; no sworn testimony was presented. The District Court merely invited Halvorson to establish a factual basis for his motion and Halvorson did so through narrative statements and various arguments.
Halvorson based his motion, in part, on Rules 1.16(a)(1) and (b)(1), Montana Railes of Professional Conduct (MRPC). In this regard, Halvorson told the District Court that Jones had stated an intent to testify falsely.
Halvorson also based his motion on Rule 1.16(b)(3), MRPC. The bulk of Halvorson’s statements, disclosures and arguments in support of his motion to withdraw were based on his belief that Jones’ decision to reject the plea agreement Halvorson had negotiated with the State and proceed to trial was repugnant or imprudent. Halvorson detailed the offense and Jones’ role in it, and disclosed Jones’ admission that he “punched [Sowers] with a bottle of beer in [Jones’] right hand.” Halvorson indicated that a felony assault had occurred and that Jones admitted having committed it. In addition, Halvorson stated that he did not have a defense to present to a jury on Jones’ behalf. He opined that it was repugnant to deny criminal culpability to a jury where on an “open and shut basis... there is guilt.” Halvorson also indicated that Jones’ decision to go to trial rather than accept a plea agreement “when [Jones] stands virtually no chance of an acquittal” was repugnant to him and constituted good cause for his withdrawal as counsel.
Jones denied that he had communicated an intent to testify falsely to Halvorson and stated that, in fact, he did not intend to testify at his trial. He asserted that Halvorson had “lied about a few things” and that “[he] disagreed] with everything [Halvorson] said, and that’s fine if [Halvorson] drops out of [the] case.” The District Court indicated that it was accepting Jones’ statements as “argument and testimony.”
Based on Jones’ statement that he did not intend to testify, the District Court denied Halvorson’s motion to withdraw. Several months later, a jury convicted Jones of felony assault and the District Court sentenced him and entered judgment. Jones appeals.
Did the District Court abuse its discretion in denying Halvorson’s motion to withdraw as Jones’ counsel?
Jones argues on appeal that the District Court abused its discretion in denying Halvorson’s motion to withdraw. While advancing alternative bases for his argument, Jones’ primary contention is that Halvorson had a conflict of interest which resulted in a denial of Jones’ constitutional rights to a fair trial and to the effective assistance of counsel. The State disagrees, arguing that no conflict of interest existed in this case.
The grant or denial of a lawyer’s motion to withdraw is within the discretion of the district court. See United States v. Keys (9th Cir. 1995), 67 F.3d 801, 807; Petition of Jones (1963), 143 Mont. 309, 309-10, 387 P.2d 712, 712. We review such discretionary matters to determine whether the court abused its discretion. See State v. Craig (1995), 274 Mont. 140, 149, 906 P.2d 683, 688 (citations omitted).
GENERAL DUTIES OF ATTORNEY TO CLIENT
The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to the assistance of counsel. Mere representation by counsel is not sufficient, however; the assistance must be effective to give true meaning to that right and to the right to a fair trial. State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781. Moreover, a criminal defendant’s constitutional right to the effective assistance of counsel is comprised of two correlative rights: the right to counsel of reasonable competence and the right to counsel’s undivided loyalty. State v. Christenson (1991), 250 Mont. 351, 355, 820 P.2d 1303, 1306 (citations omitted). In the latter regard, the Sixth Amendment right to counsel contemplates the assistance of an attorney devoted “solely to the interests of his client.” Frazer v. United States (9th Cir. 1994), 18 F.3d 778, 784 (quoting Von Moltke v. Gillies (1948), 332 U.S. 708, 725-26, 68 S.Ct. 316, 324, 92 L.Ed. 309, 322). The duty of loyalty is “perhaps the most basic of counsel’s duties.” Strickland v. Washington (1984), 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696.
An attorney owes a duty of confidentiality to his or her clients. Rule 1.6, MRPC. The duty of confidentiality is correlative to an attorney's duty of loyalty. See, e.g., Damron v. Herzog (9th Cir. 1995), 67 F.3d 211, 215. Thus, a defense attorney’s disclosure of confidential information in violation of Rule 1.6, MRPC, necessarily implicates the attorney’s duty of loyalty as well as the defendant’s constitutional right to the effective assistance of counsel.
DISCLOSURE OF PERJURY
Rule 1.16, MRPC, provides in pertinent part:
(a)... a lawyer... shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(b)... a lawyer may withdraw from representing a client... if:
(1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent. ...
Halvorson contended that his continued representation of Jones would result in a violation of a rule of professional conduct or other law because Jones intended to commit perjury.
Rule 1.16(a)(1), MRPC, requires an attorney to withdraw where continued representation will result in a violation of the rules of professional conduct or other law. Halvorson stated that he had a conversation with Jones in which Jones communicated an intent to testify falsely and, in response, he informed Jones of the consequences of pexjury and that he could take no part in presenting perjured testimony to the District Corut. He further stated that he gave Jones a weekend over which to further consider Jones’ intent to commit peijury and his advice in this regard. The record does not reflect that Halvorson checked back with Jones after the weekend passed, to ascertain whether Jones had reconsidered based on his advice, before filing his motion to withdraw.
Halvorson conceded at the hearing on his motion to withdraw that Jones may have reconsidered and decided not to testify falsely. Thus, the record before us contains only an alleged possible intent to commit perjury. It does not support Halvorson’s contention that his continued representation of Jones would result in a violation of the rules of professional conduct or other law and, as a result, it also does not support his motion to withdraw under Rule 1.16(a)(1), MRPC.
Rule 1.16(b)(1), MRPC, on which Halvorson also based his motion, permits an attorney to withdraw if the client persists in a course of conduct the lawyer reasonably believes is criminal or fraudulent. Webster’s Ninth New College Dictionary (1988) defines “persist” as “to go on resolutely or stubbornly in spite of opposition, importunity, or warning.” Here, nothing of record indicates that Jones was “persisting” in his alleged intent to testify falsely after considering Halvorson’s advice and warning. The record before us does not support withdrawal based on Rule 1.16(b)(1), MRPC.
In this regard, Jones and the amici curiae urge our adoption of a variety of standards of knowledge which an attorney should be required to possess prior to moving to withdraw based on a criminal defendant client’s intent to commit peijury. Jones contends that a “firm factual basis” must exist. The Criminal Defense Section of the State Bar of Montana asserts that counsel must be “absolutely convinced in his own mind, and in fact beyond a reasonable doubt” that the client will commit perjury before moving to withdraw. The State Bar of Montana Ethics Committee recommends that counsel must “know” that the defendant intends to perjure himself or herself and that a maintained and reiterated statement of intent to do so should be sufficient.
We decline to adopt a particular knowledge standard in this case where no findings of fact have been made by the trial court. Moreover, it is unnecessary to do so in this case because it is clear that Halvorson did not meet any standard of knowledge prior to moving to withdraw. Because the record does not support any persistence by Jones in the alleged intent to commit perjury it follows that Halvorson could not, in the language of Rule 1.16(b)(1), MRPC, reasonably believe that Jones was persisting in a course of action involving Halvorson’s services which was criminal or fraudulent.
Halvorson also relied on Nix v. Whiteside (1986), 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123, in support of his motion to withdraw as Jones’ counsel because of Jones’ alleged intent to commit perjury. In Nix, the defendant was charged with murder, but claimed that he had stabbed the victim in self-defense. Nix, 475 U.S. at 160, 106 S.Ct. at 990-91. He told his attorney that the victim “ ‘was pulling a pistol from underneath the pillow on the bed[,]’ ” but admitted that he had not actually seen a gun. Nix, 475 U.S. at 160, 106 S.Ct. at 990-91. During trial preparation, however, the defendant told his attorney for the first time that he had seen something “metallic” in the victim’s hand; his explanation for the change was that “[i]f I don’t say I saw a gun, I’m dead.” The attorney explained that it was not necessary to prove the victim actually had a gun to succeed on a claim of self-defense, but the defendant continued to insist on testifying falsely. Nix, 475 U.S. at 161, 106 S.Ct. at 991. The attorney advised that he would not allow the defendant to testify falsely and that, if the defendant did so, he would be required to advise the court that the defendant was committing perjury and would move to withdraw as counsel. Nix, 475 U.S. at 161, 106 S.Ct. at 991.
The defendant testified at trial that he “knew” the victim had a gun, but conceded on cross-examination that he did not actually see a gun in the victim’s hand. Nix, 475 U.S. at 161-62, 106 S.Ct. at 991-92. He was convicted of second-degree murder and subsequently moved for a new trial, claiming that he had been deprived of a fair trial due to his attorney’s admonitions not to testify that he saw something metallic in the victim’s hand. Nix, 475 U.S. at 162, 106 S.Ct. at 991-92. The trial court denied the motion and the Iowa Supreme Court affirmed, holding that neither the right to counsel nor the attorney’s duty to his client extended to assisting the client in committing peijury. Nix, 475 U.S. at 162, 106 S.Ct. at 991-92.
The defendant filed a federal habeas corpus petition alleging, among other things, that he had been denied effective assistance of counsel by his attorney's refusing to allow him to give perjured testimony. Nix, 475 U.S. at 162, 106 S.Ct. at 991-92. The issue before the United States Supreme Court was whether the Sixth Amendment right to counsel is violated when an attorney refuses to cooperate with a criminal defendant in presenting perjured testimony. Nix, 475 U.S. at 159, 106 S.Ct. at 990.
The Supreme Court observed that the first part of the Strickland test requires a defendant to establish “constitutionally deficient” performance by counsel. Nix, 475 U.S. at 164-65, 106 S.Ct. at 992-93. Having recognized counsel’s duty of loyalty in Strickland, the Nix Court determined “that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” Nix, 475 U.S. at 166, 106 S.Ct. at 993-94. While an attorney’s duty of confidentiality and loyalty extends to a client’s admission of guilt, it does not require the attorney to assist the client in presenting false evidence. Nix, 475 U.S. at 166, 174, 106 S.Ct. at 993-94, 997-98. Thus, whether the attorney’s conduct in Nix was seen as a successful attempt to persuade the defendant not to commit peijury, or as a threat to withdraw and disclose the defendant’s peijury if and when it occurred, the Supreme Court held that the attorney’s representation of the defendant fell “well within accepted standards of professional conduct and the range of reasonable professional conduct acceptable under Strickland.” Nix, 475 U.S. at 171, 106 S.Ct. at 996.
In reaching its conclusion in Nix, the Supreme Court surveyed and set forth various rules of professional conduct and interpretations of such rules. For example, the Supreme Court stated that it is “universally agreed” that an attorney's first duty when confronted with a client’s stated intention to testify falsely is to attempt to dissuade the client from the unlawful course of conduct. Nix, 475 U.S. at 169, 106 S.Ct. at 995. Moreover, where the client actually gives perjured testimony, an attorney may reveal the perjury to the trial court. Nix, 475 U.S. at 170, 106 S.Ct. at 995-96. In addition, withdrawal may be appropriate where a client states an intent to testify falsely. Nix, 475 U.S. at 170, 106 S.Ct. at 995-96. The Supreme Court was carefiil to note, however, that it was not intruding into the proper authority of the states to define and apply standards of professional conduct applicable to those admitted to practice in state courts. Nix, 475 U.S. at 165, 106 S.Ct. at 993. Indeed, as pointed out by Justice Brennan in his concurring opinion, “the Court’s essay regarding what constitutes the correct response to a criminal client’s suggestion that he will perjure himself is pure discourse without force of law.” Nix, 475 U.S. at 177, 106 S.Ct. at 999 (Brennan, J., concurring).
Neither the facts nor the holding in Nix support Halvorson’s motion to withdraw based on Jones’ alleged intent to testify falsely in this case. The only pertinent facts in Nix were the attorney’s advice, in response to the client’s stated intent to commit perjury, that he would not allow the client to testify falsely and, if the client did so, he would disclose the perjury to the trial court and move to withdraw; the client did not commit perjury. Here, in response to Jones’ alleged intent to testify falsely, Halvorson advised of the potential consequences. To this extent, Halvorson’s actions mirrored those of counsel in Nix. Halvorson, however, followed his advice by moving to withdraw and making disclosures to the District Court of client confidences. These significant facts were not present in Nix.
Moreover, the holding in Nix on the Sixth Amendment issue presented by the facts referenced above is that counsel's advice to his client about the potential consequences of the client’s intent to commit perjury did not fall outside the range of reasonable professional conduct required by Strickland. See Nix, 475 U.S. at 171, 106 S.Ct. at 996. The case now before us does not involve the propriety or constitutionality of Halvorson’s advice to Jones; rather, it involves, initially, the propriety of Halvorson’s actions thereafter in moving to withdraw from further representation of Jones. In this regard and based on the record before us in this case, we concluded above that neither subsection (a)(1) nor subsection (b)(1) of Rule 1.16, MRPC, authorized Halvorson’s motion to withdraw.
Furthermore, while we agree with the Supreme Court that an attorney's “universally accepted” initial duty when faced with a client stating an intent to commit perjury is to attempt to dissuade the client from doing so (see Nix, 475 U.S. at 169, 106 S.Ct. at 995), we also agree with Justice Brennan that the Supreme Court’s extensive survey and discussion regarding standards of professional conduct under various rules and commentaries is, for the most part, dicta and without force of law. See Nix, 475 U.S. at 177, 106 S.Ct. at 999-1000 (Brennan, J., concurring). In the Nix context, that survey and discussion is background material which bears little relationship to the facts and actual issue in that case. It is neither binding, nor necessarily persuasive, authority to this Court regarding the Montana Rules of Professional Conduct and our interpretation of those Rules vis-a-vis regulating the conduct of attorneys in the courts of Montana.
As a final argument relating to Halvorson’s motion to withdraw based on Jones’ alleged intent to commit perjury, the State contends that the disclosures Halvorson made to the. District Court in this regard were required by Rule 3.3(a)(2), MRPC. Rule 3.3, MRPC, provides, in pertinent part:
(a) A lawyer shall not knowingly:
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. ...
The State asserts that Halvorson knew Jones intended to commit perjury and, as a result, that Rule 3.3(a)(2) imposed an obligation to disclose Jones’ intent to testify falsely to the District Court in order to avoid assisting Jones in the criminal or fraudulent act of perjury. However, as discussed above, Halvorson did not know Jones’ intent in this regard. Therefore, Rule 3.3 does not support Halvorson’s disclosure of Jones’ alleged possible intent to commit pexjury.
We conclude, on the record before us, that Halvorson’s motion to withdraw was improper under Rules 1.16(a)(1) and (b)(1), MRPC, and was not supported by Nix.
CONFLICT OF INTEREST
An attorney who abandons his or her duty of loyalty may create a conflict of interest. Frazer, 18 F.3d at 782. A defense attorney who essentially joins the prosecution’s efforts in obtaining a conviction and acts on a belief that the defendant should be convicted “suffers from an obvious conflict of interest.” Frazer, 18 F.3d at 782 (citation omitted). Such an attorney “ ‘fail[s] to function in any meaningful sense as the Government’s adversary.’ ” Frazer, 18 F.3d at 782 (quoting United States v. Swanson (9th Cir. 1991), 943 F.2d 1070, 1074).
While defense counsel in a criminal case assumes a dual role as a “zealous advocate” and as an “officer of the court,” neither role would countenance disclosure to the Court of counsel’s private conjectures about the guilt or innocence of his client. It is the role of the judge or jury to determine the facts, not that of the attorney.
United States ex rel. Wilcox v. Johnson (3rd Cir. 1977), 555 F.2d 115, 122. Where an attorney wilfully discloses confidential information communicated by his client, he inhibits mutual trust necessary for effective representation. Wilcox, 555 F.2d at 122.
Here, the record clearly establishes that Halvorson put his personal interest in not wanting to take Jones’ case to trial ahead of Jones’ constitutional right to an attorney devoted solely to Jones’ interest in exercising his right to a trial by jury. Halvorson informed the District Court that he had negotiated a favorable plea agreement for Jones and indicated that he considered Jones’ decision to decline the agreement and exercise his right to trial repugnant. In the coruse of further explaining Jones’ “repugnant” decision, Halvorson reminded the court of the pending felony assault charge, premised on the State’s allegation that Jones committed the assault by striking Sowers “with either a beer bottle, or a glass, or some glass object[,]” and disclosed a confidential admission Jones made to him that Jones “punched [Sowers] with a bottle of beer in [Jones’] right hand.”
This disclosure was improper. As discussed above, Rule 1.6, MRPC, expressly prohibits the disclosure of information relating to the representation without the client’s consent except in specified circumstances where the duty to disclose necessarily overrides the duty of confidentiability and loyalty. Rule 3.3(a)(2), MRPC, provides an additional duty to disclose under carefully limited circumstances, even when compliance would reveal information otherwise protected by Rule 1.6, MRPC. The circumstances contained in Rule 3.3(a)(2), MRPC, relate to disclosure necessary to avoid assisting in a client’s criminal or fraudulent act, however, and bear no relationship to Halvorson’s extensive disclosure in this case regarding his “repugnance” to taking Jones’ case to trial.
Moreover, Halvorson’s contention that Jones’ “repugnant” decision to exercise his right to a jury trial, rather than accept a plea agreement, constitutes good cause for withdrawal rims directly afoul of Rule 1.2(a), MRPC, which provides in relevant part:
In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
The obligations imposed by this Rule are paramount, and unqualified. Thus, while Halvorson may not have agreed with Jones’ decision to decline a plea agreement and exercise his right to a jury trial, that decision did not — and cannot — constitute cause for withdrawal.
Halvorson also indicated that, in his opinion, on an “open and shut basis ... there is guilt and is the plea [sic] that probably should be entered.” To illustrate his point, Halvorson detailed for the District Court and the prosecution why he believed Jones was so clearly guilty. He laid out the facts leading up to the alleged assault, which involved Sowers physically removing Jones from a bar and, immediately thereafter, walking into the bar covered with blood. He then stated:
Now, on probabilities, who else would have done it? [Jones] just had this physical disagreement with [Sowers].
There is no other person that the State has ever suspected, and there’s no other person that [Jones] has indicated should be a suspect, and there’s no other person that any witness I know of has indicated should be a suspect. So, you know, the range of possible explanations ... is narrow. It would be like threading a needle to come up with any other explanation.
In my mind, under the study of Montana law, there’s no doubt but what that [sic] beer bottle is a weapon, and, even if it weren’t, there’s no doubt in my mind that the degree of injury ... is serious bodily injury.
It’s a felony assault, and my client has admitted to me, essentially, that he did it.
Halvorson’s narrative detailed for the District Court and the prosecution why he believed Jones was guilty of felony assault and should not go to trial. The State cites to no authority, and we have found none, supporting disclosure by a defense attorney of a client’s confidential admission of guilt and detailing for the court and the prosecution the reasons his client is guilty in support of a motion to withdraw from further representation.
The record before us establishes that, at the hearing on Halvorson’s motion to withdraw, Halvorson totally abandoned his adversarial role on Jones’ behalf against the State, essentially joining the prosecution’s efforts in obtaining a conviction. In acting on his own belief that Jones should be convicted and in essentially joining the State’s efforts in obtaining a conviction, we conclude that Halvorson created “an obvious conflict of interest” and abandoned his duty of loyalty to Jones. See Frazer, 18 F.3d at 782.
Ordinarily, a criminal defendant’s constitutional right to the effective assistance of counsel is violated only when counsel’s performance was deficient and the deficient performance prejudiced the defendant’s right to a fair trial, and the defendant must establish both elements. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The Strickland Court noted the availability of “presumed prejudice,” however, in situations where counsel is “burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. Similarly, the Ninth Circuit Court of Appeals has recognized an exceptional situation regarding the prejudice requirement where an egregious actual conflict of interest exists of record between the client’s interests and the attorney’s sympathies. See Frazer, 18 F.3d at 782-83.
In Frazer, the Ninth Circuit addressed a defendant’s allegations that his appointed counsel had called him a “stupid nigger son of a bitch and said he hopes I get life [;] ” the conversation allegedly was overheard by others and the defendant attempted without success to have a different lawyer appointed. Frazer, 18 F.3d at 780. He subsequently filed a pro se motion for relief from the sentence imposed, alleging that the treatment he received from counsel was so fatally defective as to constitute an abandonment of the attorney’s duty of loyalty. Without holding an evidentiary hearing, the magistrate judge dismissed Frazer’s assertions as mere conclusory allegations and, in any event, determined that Frazer was not prejudiced because counsel’s actual performance was not demonstrably erroneous. Frazer, 18 F.3d at 780.
The issue on appeal in Frazer was whether the trial court abused its discretion in failing to hold an evidentiary hearing on whether the defendant’s Sixth Amendment right to counsel was violated. The Ninth Circuit held that
the facts as alleged in this case, if proved, would render so defective the relationship inherent in the right to trial counsel guaranteed by the Sixth Amendment that Mr. Frazer would be entitled to a new trial with a different attorney.
Frazer, 18 F.3d at 784. According to the Ninth Circuit, the defect, if proved, would be so egregious that a presumption of prejudice would be appropriate without review of the attorney’s actual conduct at the trial. Frazer, 18 F.3d at 785 (citing United States v. Cronic (1984), 466 U.S. 648, 660, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668).
Notwithstanding the differences in procedural context and bases for abandonment of the duty of loyalty between Frazer and the case before us, we adopt and apply the Frazer rationale here. Our duty as judges is “to ensure that the right to counsel, as a jurisdictional prerequisite to depriving a person of his or her liberty, is fully honored.” Frazer, 18 F.3d at 784. The record before us in this case is clear. Halvorson totally abandoned his duties of loyalty and confidentiality to Jones by putting his personal interest in not wanting to take Jones’ case to trial ahead of Jones’ interest in representation by an attorney devoted solely to his interest in exercising his right to trial. The conflict between Halvorson’s sympathies and Jones’ rights and interests is unmistakable and egregious and, under such circumstances, Halvorson can be said to have represented Jones only “ ‘through a tenuous and unacceptable legal fiction.’ ” See Frazer, 18 F.3d at 782-83 (citation omitted). We conclude that this case constitutes the very rare instance in which a presumption of prejudice is warranted.
We will continue to require strict compliance with the prejudice prong of Strickland in ordinary ineffective assistance cases involving allegations of deficient performance by counsel. In that regard, our deference to counsel’s tactical and strategic decisions will continue unabated. Given this record, however, we refuse to indulge in nice calculations regarding the amount of prejudice attributable to the clear and unequivocal conflict of interest Halvorson created.
We hold that, faced with Halvorson’s clear conflict of interest and abandonment of his duty of loyalty to Jones, the District Court abused its discretion in denying Halvorson’s motion to withdraw as Jones’ counsel. We vacate Jones’ conviction and sentence and remand this case to the District Court for a new trial.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER, ERDMANN, LEAPHART and HUNT concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
The United States District Court for the District of Montana, Billings Division, has certified the following question to this Court pursuant to Rule 44, M.R.App.P. We answer the certified question “no.”
The certified question is:
Section 33-23-203, MCA, prohibits the stacking of the uninsured motorist coverage available under a policy of motor vehicle liability insurance. Does Section 33-23-203, MCA, prohibit the stacking of the medical payment coverage and the underinsured motorist coverage available under a policy of motor vehicle liability insur anee where a premium is charged for coverage of each motor vehicle listed within that policy?
In the insurance policy at issue, a premium is charged on each motor vehicle listed within the policy for medical payment coverage and a premium is charged on each motor vehicle listed within the policy for underinsurance coverage. The premium for the underinsured motorist coverage is included as part of the premium for the uninsured motorist coverage.
In its Order Certifying Question to the Supreme Court of Montana, the District Court submitted a statement of agreed facts. The facts that this Court finds dispositive of the question are as follows:
4. That, at approximately 0450 hours, on November 9, 1991, a vehicle insured by the Plaintiff under the policy issued to Wade and Diana Brown, namely a 1971 Ford pickup with VIN F10GKL66406, being driven by Lori Watson, in which Scott Hankel and Gary Lee Leonard were passengers, was involved in a one-vehicle accident in Jefferson County, Montana, on Interstate 90 at milepost 233.4, 15.6 miles west of Whitehall, Montana.
5. Subsequent thereto, at approximately 0510 hours, at [sic] 1983 Ford pickup truck, VIN 1FTHF26L5DPA15458, owned by Darrel M. Storey and driven by Darrel Maynard Storey, Jr., was traveling east on Interstate 90 when the driver lost control of the vehicle as he attempted to slow for the accident scene and went into a sideskid. The Storey vehicle struck the right rear comer of the trailer attached to the subject 1971 Ford pickup, VIN F10GKL66406. Such contact pushed the trailer into the ditch and onto its left side. The Storey vehicle then rapidly rotated. Mr. Leonard’s coat became entangled on the hitch of the Storey pickup which caused Mr. Leonard to be dragged under the Storey vehicle until after it went backwards into the ditch on the south side of the road. Mr. Leonard died as a result of the injuries sustained.
6. The Storey vehicle was insured by State Farm Auto Insurance Company under Policy No. 138 6224-405-226 and State Farm subsequently paid out its policy limits under the liability portion of its policy limits in the amount of $25,000.
7. Prior to signing a Release, the Estate of Gary Lee Leonard made demand upon Plaintiff for the uninsured (underinsured) motorist coverage and auto medical payment coverage provided for in the Business Auto Policy of Wade and Diana Brown.
8. Plaintiff has refused to make any payments of uninsured (underinsured) motorist coverage and auto medical payment coverage to the heirs and/or Estate of Gary Lee Leonard, deceased.
Answering the question certified by the United States District Court requires this Court to construe § 33-23-203, MCA. In construing a statute, “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 or to omit what has been inserted.” Section 1-2-101, MCA. The rules of statutory construction require the language to be construed according to its plain meaning. Stratemeyer v. Lincoln County (1996), [276 Mont. 67], 915 P.2d 175, 178 (citing Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088). If the language is clear and unambiguous, then no further interpretation is required; we will resort to legislative history only if the intent cannot be determined from the plain wording of the statute. Clarke, 897 P.2d at 1088. Where the intention of the legislature can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply other means of interpretation. Clarke, 897 P.2d at 1088 (citing Tongue River Elec. Coop. v. Montana Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864).
The question certified is a narrow one. We are asked only to determine whether § 33-23-203, MCA, prohibits the stacking of “optional” coverages — here, the medical payments and underinsurance coverages. We do not consider whether the terms of the insurance contract prohibit stacking. Rather, our analysis is confined to an interpretation of § 33-23-203, MCA. Accordingly, this Court’s recent decision in Chilberg v. Rose (1995), 273 Mont. 414, 903 P.2d 1377, is not controlling in this case as Chilberg is a multiple policy case and does not interpret § 33-23-203, MCA. In addition, we note that Sayers v. Safeco Ins. Co. of America (1981), 192 Mont. 336, 628 P.2d 659, cited with approval in Chilberg, is contrary to § 33-23-203, MCA, as Sayers approved the stacking of uninsured motorist coverage under a single policy. Thus, under § 33-23-203, MCA, Sayers is no longer good law because under the terms of § 33-23-203, MCA, stacking of uninsured motorist coverage for multiple vehicles insured under a single policy is expressly prohibited unless the policy specifically provides otherwise. Section 33-23-203, MCA, provides:
(1) Unless a motor vehicle liability policy specifically provides otherwise, the limits of insurance coverage available under any such policy, including the limits of liability under uninsured mo torist coverage, must be determined as follows, regardless of the number of motor vehicles insured under the policy:
(a) the limit of insurance coverage available for any one accident is the limit specified for the motor vehicle involved in the accident;
(b) if no motor vehicle insured under the policy is involved in the accident, the limit of insurance coverage available for any one accident is the highest limit of coverage specified for any one motor vehicle insured under the policy; and
(c) the limits of coverage specified for each motor vehicle insured under the policy may not be added together to determine the limit of insurance coverage available under the policy for any one accident.
(2) A motor vehicle liability policy may also provide for other reasonable limitations, exclusions, or reductions of coverage which are designed to prevent duplicate payments for the same element of loss.
From the language of the statute, it is clear that “stacking” is not allowed “unless a motor vehicle liability policy specifically provides otherwise.” It is equally clear that the “anti-stacking” provisions of the statute apply to a “motor vehicle liability policy’ (MVLP). The term MVLP is defined in § 33-23-204(2), MCA, as “any policy of automobile or motor vehicle insurance against liability now or hereafter required under Title 61, chapter 6, parts 1 and 3.” (Emphasis added.)
The dissenters argue that § 33-23-204(2), MCA, refers to required “policies” rather than required “coverages.” It makes no sense, however, to discuss “policies” in a vacuum. Apolicy of insurance is nothing more than the coverages which are provided within the policy. In § 33-23-204(2), MCA, the legislature was obviously correlating the anti-stacking statutes with the fact that policies with specific types of coverage are required by Title 61, chapter 6, parts 1 and 3. In particular, the per person, per vehicle and property damage coverages mandated by § 61-6-103(2), MCA.
In interpreting § 33-23-204(2), MCA, three points are apparent; it is directed at insurance against liability. Secondly, it is directed at insurance coverage which is “required” by law; and finally, it is concerned with liability insurance which is not only required, but is required by both part 1 and part 3. There are only three variations of insurance coverage which meet the above criteria; that is, liability coverage which is required by both the MVSRA and the Motor Vehicle Liability Act. Those three coverages are the per person, per vehicle and property damage coverages which are required by § 61-6-103(2), MCA, and which are incorporated into the Motor Vehicle Liability Act by § 61-6-301, MCA. Unlike the third-party coverage mandated by MVSRA and the Motor Vehicle Liability Act, underinsurance and medical payment do not qualify as insurance against liability. Rather, underinsurance and medical pay coverage are designed to protect the first party insured. Furthermore, there is nothing in MVSRA, the Motor Vehicle Liability Act or Title 33, chapter 23, MCA, which would “require” underinsurance and medical pay coverage. To the contrary, the MVSRA specifically excludes coverages which are in excess of the required per person, per vehicle and property damage coverage.
The MVSRA, § 61-6-103(8), provides as follows:
Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy, and the excess or additional coverage is not subject to the provisions of this part. With respect to a policy which grants the excess or additional coverage, the term “motor vehicle liability policy” applies only to that part of the coverage which is required by this section.
As Justice Erdmann’s dissent points out, the above provision specifically refers to coverage which is required “by this section.” Although “this section” refers to the MVSRA, the Motor Vehicle Liability Act has also incorporated those same “coverage” requirements; $25,000 because of bodily injury to any one person, $50,000 for bodily injury in any one accident, and $10,000 for property damage. There is nothing in the Motor Vehicle Liability Act which would suggest that the liability coverage requirements incorporated from MVSRA are any broader than those required under MVSRA. Since MVSRA specifically does not require any excess or additional coverage such as underinsurance, it is reasonable to conclude that the Motor Vehicle Liability Act likewise treats medical pay coverage and underinsurance as in “excess” or in addition to the coverages which are specifically required by both Acts in question. Title 61, chapter 6, parts 1 and 3.
As medical payment coverage and underinsured motorist coverage .are “excess or additional coverage” which are not required under either the MVSRA or the Motor Vehicle Liability Act, we determine that these coverages are not part of the MVLP under § 33-23-204(2), MCA. Accordingly, the prohibition against stacking required cover ages in § 33-23-203, MCA, does not apply to underinsurance and medical payment coverage.
This Court has recognized that “Montana has no statutory insurance requirement concerning underinsured motorists.” Grier v. Nationwide Mut. Ins. Co. (1991), 248 Mont. 457, 458-59, 812 P.2d 347, 349. While coverage in excess of the minimum amounts mandated by § 61-6-103(2), MCA, and additional coverages such as comprehensive, underinsured, medical payments, or towing may be purchased by the insured, the mandate of Title 61, chapter 6, part 1, MCA, and the term MVLP apply only to the third-party liability coverage required by § 61-6-103(2)(b), MCA.
Section 33-23-201, MCA, requires that the insurer offer first-party, uninsured motorist coverage in the same amounts as required for third-party coverage under § 61-6-103, MCA. The distinction between the uninsured motorist coverage and the third-party coverage is that by rejecting the uninsured coverage the insured may waive the first-party uninsured coverage benefitting himself, but he cannot waive the minimum liability coverages benefitting the third-party. Importantly, however, in the absence of the insured affirmatively rejecting the coverage, the policy is issued with the 'uninsured motorist coverage. Accordingly, under Montana’s statutory scheme the minimum third-party liability coverages under § 61-6-103(2)(b), MCA, and the minimum first-party, uninsured motorist coverage under § 33-23-201, MCA, are required coverages.
Section 33-23-203, MCA, initially references the MVLP and coverage available under such a MVLP policy and continues: “including the limits of liability under uninsured motorist coverage.” This latter inclusion of uninsured motorist coverage was necessary because uninsured motorist coverage is not required as part of the MVLP. Uninsured motorist coverage is, nonetheless, a coverage which is required by § 33-23-201, MCA, subject to rejection by the insured. Accordingly, we determine that the “anti-stacking” provision of § 33-23-203, MCA, applies only to those coverages required under the MVLP or § 33-23-201, MCA.
Farmers Alliance argues that the “available coverage” language in § 33-23-203, MCA, is broader than the required coverages and that the statute includes underinsurance coverage. We reject this argument. The only insurance coverage available under both part 1 and part 3, as the MVLP has been restrictively defined by the legislature, is the minimum third-party coverage required by § 61-6-103(2)(b), MCA. This definition of “available coverage” follows because the term MVLP does not encompass any other “excess” or additional coverage. Section 61-6-103(8), MCA. The limits of coverage available under any such policy must refer to the required third-party minimum coverages, required under both parts 1 and 3 of Title 61, chapter 6. Furthermore, “uninsured motor vehicle” is defined in § 33-23-201, MCA, which provides that “[a]n uninsured motor vehicle is a land motor vehicle, the ownership, the maintenance, or the use of which is not insured or bonded for bodily injury liability at the time of the accident.” This definition does not include “underinsured motor vehicle” within its terms.
Although Farmers Alliance asserts that this Court’s opinion in Grier holds that underinsured coverage is part of the uninsured motor vehicle coverage, we determine that Grier is distinguishable. Our holdings in Grier were based upon an interpretation of the policy language and are not controlling as a matter of statutory construction. In Grier, we stated that “under these circumstances, the “under-insured” coverage is part of the uninsured motor vehicle coverage.” Our holding, however, was prefaced with the caveat “under these circumstances.” We recognized that the “unique fashion” of the Grier policy was determinative. We noted that “the insurance policy in this case [Grier] is set up in a unique fashion ... the “underinsured” motorist provision is part of the section on uninsured motorist coverage ... there is no separate policy section providing for underinsured motor vehicle coverage.” Grier, 812 P.2d at 349. In addition, we noted that “the declarations page makes no mention whatsoever of under-insured motor vehicle coverage.” Grier 812 P.2d at 349. Most importantly, we were interpreting the language of the Grier policy — not the statute. Here, however, our conclusion is based on § 33-23-203, MCA. Further, unlike the policy at issue in Grier, the instant policy sets forth the underinsurance coverage on the declarations page. We determine that Grier is not determinative on this issue as it interpreted the insurance contract, not § 33-23-203, MCA.
The legislature has mandated that motor vehicle liability policies provide two types of coverage: coverage for injury to third-parties, Title 61, chapter 6, parts 1 and 3, and first party coverage for uninsured motorists, § 33-23-201, MCA. Likewise, the legislature has provided that, absent contractual language to the contrary, such required coverages cannot be “stacked” when numerous vehicles are insured under one policy. Section 33-23-203, MCA. The question of whether excess or additional coverages, such as underinsurance coverage, can be stacked was left as a matter of policy interpretation.
Accordingly, we answer the certified question in the negative. Section 33-23-203, MCA, does notprohibit the stacking of the medical payment coverage and the imderinsured motorist coverage available under a policy of motor vehicle liability insurance where a premium is charged for coverage of each motor vehicle listed within that policy.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and TRIEWEILER concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
Plaintiff Monica Busch brought this action in the District Court for the Thirteenth Judicial District, Yellowstone County, to recover damages allegedly sustained in an automobile accident involving Defendant Michael Atkinson, Jr. Defendants filed a motion to dismiss based on Plaintiff’s failure to have a summons issued within one year of filing the complaint, pursuant to Rule 41(e), M.R.Civ.P. The District Court granted Defendants’ motion and ordered the dismissal of this action. We reverse.
We address the following issue on appeal:
Did the District Court err in dismissing Plaintiff’s personal injury action because a summons was not issued within one year of the commencement of the action?
Factual and Procedural Background
Plaintiff Monica Busch was injured on February 2, 1989, when Defendant Michael Atkinson, Jr., the minor son of Defendants Michael and Rita Atkinson, rear-ended Plaintiff’s vehicle while Plaintiff was stopped at a stop sign. Defendants’ insurance company accepted liability and paid for conservative treatment of Plaintiff’s cervical strain until it decided Plaintiff’s healing period should have ended. Plaintiff stopped treatment for a time but when she decided to resume treatment, Defendants’ insurance company refused to reimburse Plaintiff for further treatment.
Plaintiff’s counsel sent a letter to Defendants’ insurance adjuster requesting that the insurance company resume advancing payment for Plaintiff’s medical bills. In a letter dated April 5, 1990, the insurance adjuster stated that his company had already paid $2,900 for various examinations and treatments for Plaintiff and was not interested in advancing any more money for Plaintiff’s medical bills. The letter concluded with the statement “[w]hen your client is ready to talk final settlement of this case, we will be open for discussion.” Thereafter, Plaintiff continued with conservative treatment and submitted her medical bills to her husband’s health insurance carrier.
Plaintiff’s counsel filed the complaint commencing this action on January 31,1992, to prevent the statute of limitations from running. On August 12, 1992, the District Court issued an order requiring Plaintiff to file a status report with the court or to face dismissal of the case. That same month, Plaintiff’s counsel experienced problems with the computer in his office resulting in the loss of all data on the hard drive for the months of June, July and August 1992. Despite these computer problems, counsel filed a Status Report and Objection to Dismissal on September 16,1992, claiming that he was in continuing negotiations with Defendants’ insurance company and stating that the summons and complaint had not been served so that he could continue to deal directly with the insurance company.
In March 1993, Plaintiff’s counsel discovered that no summonses had ever been issued in this action. Counsel prepared a summons and took it to the Clerk of Court’s Office and attempted to have it issued. The court personnel advised counsel that they could not issue the summons because the one-year period provided by Rule 41(e), M.R.Civ.P., had expired. Counsel filed a motion with the court on March 9,1993, for leave to issue a summons beyond the one-year time period provided by Rule 41(e), M.R.Civ.P., on the basis of excusable neglect. He claimed that he mistakenly believed that he had prepared a summons and had it issued soon after he filed the status report with the District Court in September 1992, and that he had not discovered the error sooner because his office calendaring system had been completely wiped out by a computer virus in January 1993.
On May 25,1993, the District Court denied the motion for leave to issue a summons and ordered the action dismissed based upon the court’s finding that the Rules of Civil Procedure require dismissal if no summons has been issued within one year of filing the complaint regardless of the reason for it not being issued. Plaintiff filed a motion for reconsideration on May 28, 1993, under the theory that a summons could be issued on an amended complaint. On July 12, 1993, the District Court granted Plaintiff’s motion for reconsideration, vacating the May 25,1993 order dismissing this action and granting Plaintiff’s motion for leave to file an amended complaint and have summons issued on the amended complaint. However, Plaintiff failed to file the amended complaint or have summons issued.
On January 19,1995, more than 18 months after the District Court granted Plaintiff leave to file, the court sent Plaintiff’s counsel a notice advising that Plaintiff’s case would be dismissed for failure to prosecute unless good cause was shown why no action had been taken by Plaintiff following the court’s issuance of its July 12, 1993 order. In response, Plaintiff filed an amended complaint and three summonses were issued and served on January 26, 1995. However, the day after these summonses were issued, Plaintiff filed a second amended complaint, without leave of the court, to correct the name of one of the Defendants. The second amended complaint and three new summonses were served on the Defendants and an Affidavit of Service of Process was returned and filed with the Clerk of Court on January 31,1995, the day the three-year time limit for serving and filing return of service as set forth in Rule 41(e), M.R.Civ.R, was to expire.
On February 15, 1995, Defendants’ counsel filed a motion to dismiss under Rule 12(b), M.R.Civ.P, on the basis of insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief may be granted. The District Court granted Defendants’ motion on June 28, 1995, and ordered the dismissal of this action. On July 13, 1995, Plaintiff filed a Motion for Reconsideration but failed to file a supporting brief. The District Court denied Plain tiff’s Motion for Reconsideration on August 1, 1995, and entered judgment in favor of Defendants, ordering the dismissal of Plaintiff’s complaint. Plaintiff appeals.
Discussion
Did the District Court err in dismissing Plaintiff’s personal injury action because a summons was not issued within one year of the commencement of the action?
The District Court dismissed Plaintiff’s personal injury action because it determined that Plaintiff’s failure to issue a summons within one-year of the commencement of the action as mandated by Rule 41(e), M.R.Civ.P, entitled Defendants to dismissal. The court also determined that, even though Plaintiff was allowed to file an amended complaint, the one-year period to issue a summons prescribed in Rule 41(e), M.R.Civ.P., runs from the commencement of the action and does not begin running anew with the filing of the amended complaint.
Our review of a district court’s conclusions of law is plenary. We simply determine whether the court’s interpretation of the law is correct. First Call v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 426, 898 P.2d 96, 96 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).
This Court has previously stated that Rule 41(e), M.R.Civ.P., requires dismissal of an action where summons is not issued within one year of the commencement of the action, unless an appearance is made by the defendant within three years of the commencement of the action. Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 367, 865 P.2d 264, 266-67; Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 148, 729 P.2d 469, 472. Rule 41(e), M.R.Civ.P., provides, in pertinent part:
all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. [Emphasis added.]
Plaintiff argues that a district court has the authority to extend the time for a plaintiff to have a summons issued where the failure to act was the result of excusable neglect pursuant to Rule 6(b), M.R.Civ.R, or for good cause pursuant to the rule established in Livingston v. Treasure County (1989), 239 Mont. 511, 781 P.2d 1129 (overruled by Haugen v. Blaine Bank (Mont. No.95-554, decided October 24, 1996). Plaintiff further argues that under Rule 4C(1), M.R.Civ.P, it was the duty of the Clerk of Court to issue the summons when the complaint was filed and that the burden of issuing the summons was wrongfully placed upon the Plaintiff.
We find it unnecessary to address all three of Plaintiff’s arguments as her argument regarding Rule 4C(1), M.R.Civ.P., is dispositive of this case. Rule 4C(1), M.R.Civ.R, provides in pertinent part:
Upon the filing of the complaint, the clerk shall forthwith issue a summons, and shall deliver the summons either to the sheriff of the county in which the action is filed, or to the person who is to serve it, or upon request, to the attorney for said party who shall thereafter be responsible to see that the summons is served in the manner prescribed by these rules. Upon request, separate or additional summons shall issue against any parties designated in the original action, or against any additional parties who may be brought into the action. [Emphasis added.]
Although this Court has previously stated that the power to issue a summons lies exclusively with the clerk of court and that an attorney can only request that the summons be issued, Larango v. Lovely (1981), 196 Mont. 43, 46-7, 637 P.2d 517, 519, we have not heretofore squarely addressed the precise question raised here — i.e., should the burden of a Rule 41(e) dismissal fall on the party filing a complaint where the summons is not issued within one year because the clerk of court fails to exercise that power in compliance with Rule 4C(1)? In addressing this issue we appreciate that, historically and as a matter of usual practice, attorneys prepare the summons and usually direct the clerk of court to issue it at the time of filing the complaint or at some later time. Normally the clerk simply complies with the attorney’s directive.
However, our task, when called upon to decide a case involving the Rules of Civil Procedure is to simply apply them as written, not to conform the Rules to what may be a prevailing practice actually at odds with what the Rules clearly and unambiguously require. Moreover, in our interpretation of the various Rules of Civil Procedure, we utilize applicable rules of statutory construction. Thus in our interpretation of the Rules, we are required
simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted [and] [w]here there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.
.Section 1-2-101, MCA. See also First Call, 898 P.2d at 97; Pierce Packing Co. v. District Court, etc. (1978), 177 Mont. 50, 53-54, 579 P.2d 760, 762. Thus, we must attempt to read Rules 41(e) and 4C(1) together and, if possible, give effect to the clear and unambiguous language of both.
The plain language in Rule 4C( 1), is mandatory and leaves no room for interpretation — “[u]pon the filing of the complaint, the clerk shall forthwith issue a summons, and shall deliver the summons either to the sheriff... or to the person who is to serve it.” Under Rule 4C(1), neither the complainant nor his or her attorney is obliged to request that the summons be issued nor is the complainant or attorney empowered to direct the clerk not to issue the summons. The attorney for the complainant can request delivery of the issued summons and thereafter become responsible for having it served, but that is the extent of his or her authority with respect to the summons required to be issued by the clerk of court upon the complaint being filed.
Under Rule 4C(1), upon filing the complaint, the clerk of court’s duty, without a request from anyone, is to issue the summons and to deliver it for service; no discretion is allowed. This is clear not only from the plain language of the first sentence of Rule 4C(1), which requires no request for issuance of the initial summons, but also from the language of the second sentence of this Rule which provides that “[u]pon request, separate or additional summons shall issue.” (Emphasis added.) While the complainant or attorney is obligated to request additional or separate summons, there is no such obligation as to the initial summons to be issued upon filing the complaint; the clerk of court is simply, and without more, required to issue the summons and to deliver it for service.
Since Rule 4C(1) clearly places the initial burden and mandatory duty of issuing and delivering a summons on the clerk of court upon the filing of the complaint, we are unwilling to affirm the trial court sanctioning the Plaintiff with dismissal under Rule 41(e) and with the irrevocable deprivation of her day in court, where that sanction results directly from failure of the clerk — an officer of the court — to perform this duty, which is clearly required under the Rule and is solely within that official’s responsibility.
Over a decade ago, we were faced with a somewhat similar issue involving another of the Rules of Civil Procedure, Rule 77(d), and the effect on the running of litigants’ appeal times occasioned by the clerk’s failure to issue the notice of entry of judgment as required by the Rule. In those situations we uniformly applied the clear language of the Rule and held that the time for filing an appeal did not begin to run until the clerk of court issued the notice of entry of judgment as required by then existing Rule 77(d), M.R.Civ.P. See Pierce Packing Co. v. District Court, etc. (1978), 177 Mont. 50, 579 P.2d 760 (losing party’s appeal time did not begin to run where the clerk of court failed to serve notice of entry of judgment as required by then existing provisions of Rule 77(d), M.R.Civ.P., notwithstanding that prevailing counsel gave notice of entry of judgment himself); Matter of Estate of Holmes (1979), 183 Mont. 290, 599 P.2d 344 (even though devisee had actual notice of the entry of the district court’s order declaring two-thirds of devise void, the time for devisee to appeal did not begin to run where clerk of court failed to send notice of entry of judgment); Morrison v. Higbee (1983), 204 Mont. 501, 668 P.2d 1029 (appeal filed within 30 days of filing of notice of entry of judgment deemed timely where clerk of court failed to file notice of entry of judgment until three and a half years after the district court filed its findings of fact, conclusions of law and decree); AAR Const. Inc. v. Fergus Elec. Co-op. (1985), 215 Mont. 102, 695 P.2d 819 (losing party’s time for filing a post-judgment motion did not begin to run where the clerk of court failed to serve losing party with notice of entry of judgment).
Accordingly, because we hold that the duty of issuing the summons was solely that of the clerk of court’s under Rule 4C(1) and that it was not the burden of Plaintiff’s counsel to insure that the clerk performed that duty under the Rule, we reverse the District Court’s dismissal of Plaintiff’s personal injury action and remand for further proceedings allowing Plaintiff’s action to proceed. In so doing it is necessary that we make the following observation, however.
We have acknowledged that the clear and unambiguous requirements of Rule 4C(1) do not comport with what has been and is accepted practice. Rule 4C(1) should be amended to remove from the clerk of court the responsibility for insuring issuance of the summons and delivering the same to the process server by placing that responsibility squarely on the back of the party who will suffer the sanction if the summons is not timely issued and served — i.e., on the party filing the complaint. We intend to issue an order amending the rule, forthwith. See for example, our Order dated October 9,1984, wherein we amended Rule 77(d), M.R.Civ.R, because of practical complications, to, among other things, place the requirement for serving notice of entry of judgment on the prevailing party rather than on the clerk of court.
Reversed and remanded for further proceedings consistent with this opinion.
JUSTICES HUNT, GRAY, TRIEWEILER and LEAPHART concur.
|
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OPINION AND ORDER
Petitioner Michael Scott Stilson has filed a petition for post-conviction relief alleging that convictions he received in the Fourth and Eighth Judicial District Courts violated his rights to not be twice put in jeopardy guaranteed by the Fourteenth and Fifth Amendments to the United States Constitution, and Article II, Section 25, of the Montana Constitution.
On March 26, 1991, the State filed an Information in the First Judicial District Court charging Stilson with the crime of issuing a bad check, a felony, common scheme, for numerous bad checks written in Lewis and Clark County. On the same day Stilson pled guilty to the charge, and on March 27, 1991, the District Court sentenced Stilson to a three-year deferred imposition of sentence.
On January 29,1991, the State filed an Information in the Fourth Judicial District Court charging Stilson with issuing more than three bad checks in Missoula County, a felony, common scheme. On April 1, 1991, Stilson pled guilty to the charge, and on May 20, 1991, the District Court sentenced Stilson to a suspended sentence of six years confinement to run consecutive to the sentence imposed by the First Judicial District Court.
On May 28, 1991, the State filed an Information in the Eighth Judicial District Court charging Stilson with issuing a bad check, a felony, common scheme. While the Cascade County Information specifically referenced only a single bad check written in Cascade County, it listed as witnesses individuals from six separate Great Falls businesses. On June 14, 1991, Stilson pled guilty to the charge and on the same day the District Court sentenced him to ten years confinement to run consecutive to the sentences imposed in the First and Fourth Judicial District Courts. Execution of the sentence was suspended. The judgment indicated that Stilson wrote 20-25 checks in the Great Falls area and that the total checks written in Cascade County totaled $2,961.
Stilson also wrote bad checks in Yellowstone and Butte-Silver Bow Counties. Stilson was not prosecuted in either of those counties but the judgment entered by the Fourth Judicial District Court ordered Stilson to pay restitution for those bad checks.
On February 15,1996, Stilson filed this petition for post-conviction relief alleging his convictions in the First, Fourth, and Eighth Judicial District Courts were for the same common scheme and, therefore, that the Fourth and Eighth Judicial District Court convictions violated his double jeopardy rights.
The State argues that Stilson’s double jeopardy claims are waived because he failed to raise them prior to entering his guilty pleas. Stilson argues that he did not waive his double jeopardy claims when he pled guilty because his claims are jurisdictional.
It is well established that a plea of guilty which is voluntary and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea. Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citing State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788). In Hagan we held that the jurisdictional grounds exception applies to “those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record.” Hagan, 873 P.2d at 1388 (quoting United States v. Cortez (9th Cir. 1992), 973 F.2d 764, 767).
When Stilson pled guilty and was sentenced in Cascade County the District Court had before it a copy of the pre-sentence investigation report prepared with regard to Stilson’s previous sentencing in Missoula County. The report also referenced Stilson’s conviction in Lewis and Clark County.
Thus, we conclude that at the time the Eighth Judicial District Court accepted Stilson’s guilty plea the record before it contained his two prior convictions and was sufficient for the court to determine whether the government lacked the power to bring the charges at issue due to the constitutional prohibitions against placing a person twice in jeopardy. We conclude that Stilson has not waived his double jeopardy claim and therefore proceed to address the merits of his claim.
Stilson claims that he engaged in one common scheme to write bad checks in five different counties and the only thing that separates his crime into parts is geography. He argues that “common scheme” is an element of the crimes charged and that nothing in the charges evidences a different continuing criminal design. Stilson maintains that since he was convicted and punished for the common scheme in Lewis and Clark County, he cannot be prosecuted or punished again.
The State argues that double jeopardy protections prohibit multiple punishments for the same offense, and that in this case the Legislature intended “issuing a bad check” to be the offense, not “common scheme.” The State asserts that “common scheme” is not an element of the offense but rather a sentence enhancement provision which determines if the offense is a misdemeanor or felony. The State maintains that the offense in each county did not require proof of acts committed in the other counties and therefore they were separate and distinct offenses. According to the State, convicting a defendant of one common scheme does not foreclose convictions of additional common schemes in different counties.
In State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299, we stated that in examining questions of double jeopardy, this Court has consistently applied the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306. Crowder, 810 P.2d at 304. We noted that Blockburger dealt with two different double jeopardy issues — one was whether the defendant could be convicted of violating two different statutory provisions arising from a single sale of dangerous drugs, and the second was whether the defendant could be convicted of two counts of selling a dangerous drug under a single provision of the Narcotics Act. Crowder, 810 P.2d at 304-05.
When two distinct statutory provisions are involved, the test to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Crowder, 810 P.2d at 304 (citing Blockburger, 284 U.S. at 304, 52 S.Ct. at 182). The U.S. Supreme Court explained this “elements test” by stating that:
A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
This Court has employed the “elements test” to determine whether a defendant can be charged and convicted of violating two statutes for the same act or transaction. See State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339 (holding that a defendant can be convicted of both possession of explosives and criminal mischief); State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267 (holding that a defendant can be convicted of both sexual intercourse without consent and aggravated kidnapping); State v. Long (1986), 223 Mont. 502, 726 P.2d 1364 (holding that a defendant can be convicted of both misdemeanor assault and sexual assault).
In Crowder, however, we dealt with a situation similar to the second Blockburger issue. Crowder was charged with two violations of the same statutory provision (possession of dangerous drugs) and we were faced with the question of whether Crowder’s possession of drugs on his person and possession of drugs on his property constituted two separate acts of possession. Crowder asserted that principles of fundamental fairness required that he be charged only once for conduct which amounted to the same transaction. Crowder, 810 P.2d at 304.
We again looked to the Blockburger Court which addressed the issue as follows:
Each of several successive sales constitutes a distinct offense, however, closely they may follow each other.... [W]hen the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.
Blockburger, 284 U.S. at 302, 52 S.Ct. at 181 (citation omitted). In affirming the convictions, the U.S. Supreme Court examined the legislative intent behind the Narcotics Act and concluded that the statute did not punish engaging in the business of selling dangerous drugs, but rather penalized any sale. Blockburger, 284 U.S. at 302, 52 S.Ct. at 181.
We adopted a similar analysis in Crowder and articulated a second test when only one statutory provision is involved. To determine the “allowable unit of prosecution” courts look to legislative intent since discretion is with the legislature to impose punishments, subject only to constitutional limitations. Crowder, 810 P.2d at 305 (citing Bell v. United States (1955), 349 U.S. 81, 82, 75 S. Ct. 620, 622, 99 L. Ed. 905, 910). In Crowder we held that the Legislature intended to punish each separate possession of dangerous drugs and concluded that the district court did not err in failing to join the separate counts of possession on the person and possession on the premises. Crowder, 810 P.2d at 305-06.
The facts of the present case align themselves with Crowder in that Stilson was charged under the same statute, § 45-6-316, MCA (1989), and was convicted in all three different counties of issuing a bad check, a felony, common scheme. Thus, the question is whether the Legislature intended that a defendant could be punished for more than one common scheme.
We acknowledge the fact that in State v. Fleming (1987), 225 Mont. 48, 730 P.2d 1178, we stated that “[c]ommon scheme is clearly an element to be charged and proven under § 45-6-316, MCA, as it is specifically mentioned in subsection (3) of the statute.” Fleming, 730 P.2d at 1180. Therefore, we do not agree with the State’s contention that “common scheme” is merely a sentence enhancement provision which determines if the crime is a misdemeanor or felony. Nevertheless, the focus of our analysis still remains whether or not a defendant may be charged with more than one common scheme.
Stilson’s reliance on Fleming and State v. McHugh (1985), 215 Mont. 296, 697 P.2d 466, is misplaced. In both of those cases the defendants were charged in only one county with one count of issuing bad checks as part of a common scheme and the defendants disputed that their conduct constituted a common scheme. We held that the acts of issuing multiple bad checks are a common scheme if the acts were “either individually incomplete such that they show that a single crime had been committed, or [were] acts which closely follow [ed] one another evidencing a continuing criminal design.” Fleming, 730 P.2d at 1180. Even though we upheld the convictions and concluded that the defendants’ conduct constituted a common scheme, we did not address nor foreclose the possibility that a defendant could, under the appropriate facts and circumstances, be convicted of more than one common scheme.
Stilson argues that the Legislature did not intend to allow the State to divide one common scheme into multiple common schemes and multiple felony violations. According to Stilson, the Legislature did not provide in § 45-6-316, MCA, or anywhere else in the Code, a basis to divide a single common scheme of issuing bad checks into multiple common schemes.
While we agree with Stilson that the Code does not provide for multiple common schemes, we conclude that neither has the legislature foreclosed such a possibility. Under the appropriate facts and circumstances, we conclude that double jeopardy protections do not necessarily prevent a defendant who has been convicted of a common scheme in one county from being convicted of another common scheme in a different county.
In this case Stilson was charged in each county for only those checks written in that particular county and the bad checks written in each county were separate and distinct “common scheme” offenses. Stilson wrote bad checks to a number of different vendors in each county and, when taken together, such a series of acts provides the basis for the charge of felony common scheme in each county. The evidence required for the State to prove the offense in each county was different and specific to each county and the series of acts or transactions in each county were different from those in the other jurisdictions, both individually and as a group.
' Thus, under the specific facts and circumstances of this case, Stilson committed the crime of writing a bad check, a felony, common scheme, in each of the jurisdictions for which he was charged and we hold that the convictions he received in the Fourth and Eighth Judicial District Courts did not violate his double jeopardy rights. Therefore,
IT IS HEREBY ORDERED that Stilson’s petition for post-conviction relief is DENIED.
CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, NELSON and GRAY concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
Appellant Joyce Hert, appeals the decision of the Sixteenth Judicial District Court, Treasure County, finding that Joyce’s mother, Margaret DeCock, had testamentary capacity to execute her 1984 will and that Joyce exerted undue influence over Margaret in the transactions surrounding several Certificates of Deposit (CDs). Joyce’s brothers, Robert and James DeCock, cross-appeal as to the District Court granting Joyce’s motion for a new trial with respect to the validity of the Instrument of Revocation. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
Joyce presents the following issues for review:
1. Whether the District Court erred in not amending the judgment and setting aside the jury’s finding that certain transactions regarding Margaret’s CDs were the result of undue influence by Joyce.
2. Whether the District Court erred in granting a new trial only as to the validity of Margaret’s attempted revocation of her 1984 will.
3. Whether the District Court erred in limiting cross-examination regarding the settlement agreement.
Robert and James cross-appeal on the following issue:
Whether the District Court erred in granting a new trial with respect to the validity of the Instrument of Revocation.
FACTUAL AND PROCEDURAL BACKGROUND
Oscar and Margaret DeCock operated a farm and ranch near Hysham, Montana for many years. They had five children: Gary, Marlene, Joyce, Robert and James. In 1962, Oscar and Margaret made identical wills wherein all of their holdings were left to the surviving spouse. In the event that no spouse survived, all of their estate would pass to their five children in equal shares.
In 1968, Oscar wrote a new will in which he left a little over nine sections of farm and ranch land to his oldest son, Gary, subject to the condition that Gary pay one-fifth of the appraised value of the land to each of the other four children. The payment was to be secured by a mortgage and note to the other four and was payable over a ten-year period, without interest. The balance of the estate was given one-half to Margaret and one-half to the five children. Gary, Robert and James were given the option to purchase all of the interest in land that was given to Joyce and Marlene.
Oscar died in 1970, and his 1968 will was admitted to probate. After Oscar’s death, Margaret repeatedly promised the four other children that she would make up for the perceived disparity in treatment under their father’s will. To that end, Margaret created a number of CDs and savings accounts in her name and the names of some or all of her children.
By early 1980, Margaret’s health was declining. During one hospitalization in 1982, her attending physician noted the presence of symptoms indicative of early dementia. In January 1983, Margaret was again hospitalized and both attending physicians identified symptoms of mild senility, senile dementia or organic brain syndrome. After Margaret’s release from the hospital, Joyce began assisting Margaret in picking up her mail and taking Margaret to her doctor’s appointments, to the grocery store and to the bank.
In April 1984, unbeknownst to the other three children, Robert and James took Margaret to an attorney in Miles City for the purpose of preparing a new will. This will, dated April 23, 1984, disinherited Gary entirely and gave Joyce and Marlene a bequest of only $40,000 each. Robert and James were to receive all of Margaret’s real estate along with all livestock, motor vehicles, tools, and farm machinery. The real estate alone had an appraised value of more than $570,000. The remainder of Margaret’s estate was to be divided equally among Robert, James, Marlene and Joyce.
A few days after signing this will, Margaret phoned Joyce claiming that she could not remember what she had signed. At Joyce’s insistence, Margaret asked the attorney who prepared the will to send her the original by registered mail. However, within a day or two of Margaret’s receiving the will in the mail, Robert and James took possession of it to prevent it from being destroyed.
As a result of Margaret’s increasing agitation over this will, Joyce contacted an attorney in Billings who prepared an Instrument of Revocation for Margaret’s signature. During a visit to Margaret’s doctor on May 18, 1984, Margaret again became agitated over the provisions of the will. Joyce, who had accompanied her mother to the doctor’s office, produced the Instrument of Revocation, which Margaret signed in the presence of her doctor and his nurse.
Margaret was placed in a nursing home in Forsyth, Montana in October 1985. The doctors concluded that she was no longer able to live independently due to the continuing advance of Alzheimer’s disease. Joyce visited Margaret at the nursing home once or twice each week and helped Margaret make out checks to pay her bills. After Joyce moved to Billings in August 1986, she visited Margaret about once a month. In 1988, a conservatorship was established for Margaret wherein all of her assets were administered by Norwest Capital Management.
Margaret died on May 1, 1993, at the age of 83. On May 10, 1993, Robert and J ames filed an Application for Informal Probate under the terms of the April 23, 1984 will. They were appointed co-personal representatives. On June 11, 1993, Gary filed a petition for the adjudication of the other will asserting that Margaret was either incompetent to make a will in April 1984 or was subject to undue influence and duress at the time she made the 1984 will. On November 19, 1993, Joyce filed a separate response to the petitions for adjudication of the wills. Robert and James filed an amended objection and answer on March 15, 1994, which included counterclaims against Joyce for the return of assets belonging to the estate.
After extensive written discovery and numerous depositions, Robert, James, Gary, and Marlene entered into a settlement agreement on April 8, 1994. Joyce did not participate in the settlement agreement and the dispute between Joyce, Robert and James proceeded to trial with Joyce as plaintiff and Robert and James as defendants. A few days prior to trial, Robert and James filed a motion to prevent admission of the settlement agreement. The District Court ordered that the agreement would only be admissible to attack the credibility of a witness by showing motive for bias or prejudice.
Trial commenced before a twelve-person jury on September 26, 1994. After several days of testimony, the jury determined that Margaret was competent at the time she executed her April 23,1984 will and that she was not under the influence of Robert and James at the time she executed the will. The jury also determined that Joyce had exerted undue influence over Margaret in the transactions surrounding several of Margaret’s CDs.
After the jury returned its verdict, the District Court held a hearing on the proper form of judgment to be entered as a result of the jury’s answers on the verdict form. The issue of attorney fees was also addressed at this hearing. After taking the matter under advisement, the District Court filed its judgment on December 12, 1994, wherein the court upheld the jury’s verdict and ordered that Joyce pay the face value of each of the CDs at issue along with interest. The court also awarded Robert and James attorney fees in the amount of $55,653.57.
Following the Notice of Entry of Judgment, Joyce entered a motion for a temporary stay which was subsequently granted by the District Court. On December 20,1994, Joyce filed a Motion for a New Trial or to Alter or Amend Judgment on the grounds that there was insufficient evidence presented at trial to support a finding that she exerted undue influence over Margaret in connection with the CDs and that the monies the court ordered Joyce to repay had in actuality been disbursed and received by others. Joyce also objected to the award of attorney fees.
On February 2,1995, the District Court entered its Memorandum and Order denying Joyce any relief in connection with the issue of undue influence concerning the CDs. The court also concluded that the jury’s finding of competency as to the April 23, 1984 will and the issue of undue influence as to that will could not be relitigated. Nevertheless, the court granted Joyce’s motion for a new trial with respect to the validity of the Instrument of Revocation and reserved her objection to attorney fees pending resolution of the new trial.
Joyce appeals from the jury verdict and judgment, as well as the District Court’s rulings on her post-trial motions. James and Robert cross-appeal from the District Court’s granting a new trial to determine the validity of the Instrument of Revocation.
Issue 1
Whether the District Court erred in not amending the judgment and setting aside the jury’s finding that certain transactions regarding Margaret’s CDs were the result of undue influence by Joyce.
Joyce contends that the District Court erred in not amending the judgment and setting aside the jury verdict on the grounds that there was insufficient evidence presented at trial to support a finding that Joyce exerted undue influence over Margaret in connection with the CDs and that the monies from the CDs that the District Court ordered Joyce to repay had, in actuality, been disbursed and received by others. There are four instances where the jury determined that Joyce exerted undue influence over Margaret.
First, Margaret purchased a CD at First National Bank of Hysham on February 5, 1982, for $50,000. The names on that CD were Margaret, Robert, Marlene, James and Joyce. On February 10,1983, Joyce accompanied Margaret to FirstNational Bank where Margaret cashed this CD. Joyce then drove Margaret to Security Bank in Billings where Margaret purchased a new CD for $52,895.55 in the names of Margaret or Marlene or Joyce. On September 5,1989, while Margaret was incompetent, Joyce transferred that CD into her own name and that of Marlene. On September 16,1993, Joyce cashed this CD, distributing half to Marlene and half to herself.
Second, on May 18, 1984, Joyce accompanied Margaret to First State Bank of Forsyth where Margaret purchased a Time Savings Certificate in the names of Margaret or Joyce or Marlene. The funds for that purchase came from two checks for the sale of livestock and a savings account held in the names of Margaret or Robert. The value of the certificate at the time of purchase was $19,650.05.
Third, Margaret purchased five $4000 CDs in 1974 and placed her name and one of her children’s names as joint owner on each of the CDs. She held these until 1983 when she redeemed them and purchased four $10,000 CDs from First National Bank in Hysham, placing her name along with one of her children’s names, with the exception of Gary, on each of the CDs. On July 2, 1984, Margaret, accompanied by Joyce, visited First National Bank and cashed the 1983 CDs. Margaret purchased four new CDs in the amount of $10,451.26 each. She placed her own name on each CD and named Joyce, Robert and Marlene as a joint owner on three of them, but did not name James as joint owner on the fourth CD.
Finally, on May 12, 1986, Joyce accompanied her mother to First National Bank in Hysham where Margaret cashed a CD for $10,000 held in the names of Margaret and Robert. After hearing all the evidence, the jury determined that Joyce had exerted undue influence over Margaret at the times that Margaret completed each of these transactions.
The standard of review of a jury’s verdict is whether there is substantial credible evidence in the record to support it. Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976 (citing Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287).
Undue influence is defined at § 28-2-407, MCA, as follows:
(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.
In construing this statute, Montana courts consider the same criteria in determining whether a donor making a gift or a testator executing a will was subject to undue influence at the time the gift was made or the will was executed. Taylor v. Koslosky (1991), 249 Mont. 215, 218, 814 P.2d 985, 987 (citing Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939, 945).
The criteria used to determine if undue influence has been exerted upon a donor or a testator are: (1) confidential relationship of the person attempting to influence the donor or testator; (2) the physical condition of the donor or testator as it affects their ability to withstand influence; (3) the mental condition of the donor or testator as it affects their ability to withstand influence; (4) the unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; and (5) the demands and importunities as they may affect a particular donor or testator taking into consideration the time, the place, and all the surrounding circumstances. Matter of Estate of Lien (1995), 270 Mont. 295, 303-4, 892 P.2d 530, 535 (citing In re Maricich’s Estate (1965), 145 Mont. 146, 161, 400 P.2d 873, 881). Each of these criteria must be satisfied to prove a claim of undue influence. Lien, 892 P.2d at 535 (citing Flikkema v. Kimm (1992), 255 Mont. 34, 40, 839 P.2d 1293, 1297).
Applying these criteria to the facts in the case before us, clearly the first criteria has been satisfied as there was a confidential relationship between Joyce and Margaret. Until the conservatorship was established in 1988, Joyce assisted Margaret by picking up her mail and taking Margaret to the bank, to the grocery store and to her doctor’s appointments. Additionally, after Margaret was confined to a nursing home, Joyce assisted Margaret in writing out checks to pay Margaret’s bills.
The second and third criteria, the physical and mental condition of the donor or testator as may affect their ability to withstand influence, have been satisfied as well. There was sufficient evidence presented at trial by various doctors to establish Margaret’s failing physical and mental condition as it affected Margaret’s ability to withstand influence. Nevertheless, Joyce does not dispute the sufficiency of the evidence on the first three criteria. Instead, she argues that the evidence on the fourth and fifth criteria was insufficient to support a finding that she exerted undue influence over Margaret.
As to the fourth criteria, unnaturalness of the disposition, Margaret had consistently purchased during her lifetime, CDs in her own name along with those of each of her children, with the exception of Gary. Although, the fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural, Lien, 892 P.2d at 536, there was sufficient evidence presented at trial to show that the transactions in question were contrary to Margaret’s prior dispositions and were thus “unnatural.” It was not until Joyce began accompanying Margaret to the bank that Margaret removed James’ and Roberts’ names from the CDs and created new CDs without their names or cashed CDs held jointly with Robert and James rather than those held jointly with Joyce and Marlene.
The fifth criteria, demands and importunities as they may affect the donor or testator, was satisfied in that Joyce was with Margaret at the time Margaret conducted each of these transactions. It was reasonable for the jury to conclude from the evidence and by taking into consideration the time, the place and all the surrounding circumstances, that Joyce’s demands and importunities affected Margaret and allowed Joyce to unduly influence her.
Joyce contends that it is immaterial whether she exerted undue influence over Margaret in connection with the CDs, since under the Uniform Commercial Code, Joyce, as an alternative designee on the CDs, had the legal authority to negotiate and renew the CDs in whatever fashion she chose. We will not address this argument as it was not raised before the District Court and was raised for the first time on appeal. Marsh v. Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093 (citing Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d 1143, 1145).
Joyce also argues that the District Court should not have ordered that she repay the face value of each of the CDs along with interest as the majority of the funds from these CDs was disbursed and received by others. The evidence does indicate that Joyce did not receive all of the funds involved in these four transactions. In the first transaction, Joyce received $28,079.71, half of the Security Bank CD and Marlene received the other half. In the second transaction involving the Time Savings Certificate purchased on May 18, 1984, the certificate was transferred to the conservatorship on May 13, 1988. After Margaret’s death, it was transferred to her estate. In the third transaction, involving the July 2, 1984 CD for $10,451.26, this CD was transferred to the conservatorship where it was eventually cashed and the money used for Margaret’s benefit. In the fourth transaction involving the CD held in the names of Margaret and Robert that was cashed on May 12,1986, a portion of the money from that CD was used to pay the property taxes on the DeCock ranch, including that part of the ranch leased by Robert and James. The balance was placed in an interest-bearing savings account in Margaret’s name. That savings account was eventually transferred to the conservatorship and used for Margaret’s benefit.
With the exception of the funds from the Security Bank CD, the funds from these transactions were used for Margaret’s benefit. Joyce will not be held responsible for repaying any funds from which she did not derive a benefit.
Accordingly, we hold that there was substantial evidence for a jury to find that Joyce exerted undue influence over Margaret in the transactions surrounding Margaret’s CDs and we affirm the District Court on this issue. However, we reverse the District Court’s order concerning the amount Joyce must repay on these CDs and we remand to the District Court for a redetermination on this issue.
Issue 2 and Cross-Appeal
Whether the District Court erred in granting a new trial only as to the validity of Margaret’s attempted revocation of her 1984 will.
Whether the District Court erred in granting a new trial with respect to the validity of the Instrument of Revocation.
In its Memorandum and Order filed February 2,1995, the District Court concluded that it had erred in refusing to instruct the jury with respect to the validity of the Instrument of Revocation. Hence, the court granted Joyce’s motion for a new trial on the issue of the validity of the Instrument of Revocation and on the subissues of whether Margaret was competent at the time the document was executed and whether the document was executed under undue influence.
On appeal, Joyce contends that the District Court should also have granted a new trial as to the validity of the 1984 will. In their cross-appeal, Robert and James contend that the court erred in granting a new trial at all.
The standard of review of a district court’s ruling on a motion for a new trial is whether the court abused its discretion. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 149, 900 P.2d 281, 283. See also Estate of Spicher v. Miller (1993), 260 Mont. 504, 506, 861 P.2d 183, 184.
The District Court erred in failing to instruct the jury on the Instrument of Revocation, thus we find no abuse of discretion in the District Court’s grant of a new trial regarding this document and we affirm on this issue. Furthermore, we find merit in Joyce’s contention that the District Court should have granted a new trial on the validity of the 1984 will along with its grant of a new trial on the Instrument of Revocation. The will and the Instrument of Revocation were executed so close in time, within 25 days, that the validity of both documents is inextricably intertwined. Moreover, the medical testimony at trial dealt with Margaret’s competence at the time she executed both documents. Under the circumstances of this case, it is necessary that the same fact finder adjudicate the validity of both the will and the Instrument of Revocation, taking into consideration all of the evidence.
Accordingly, we hold that the District Court erred in failing to grant a new trial on the validity of the 1984 will and we reverse and remand on this issue.
In its judgment filed December 12, 1994, the District Court awarded Robert and James attorney fees in the amount of $55,653.57. In her Motion for New Trial or to Alter or Amend Judgment, Joyce objected to the award of attorney fees on the grounds that there were originally three parties as plaintiffs in this action, all of whom were asserting the same challenge to the 1984 will. In addition Joyce claimed that the personal representatives were not entitled to an award of attorney fees for their work in connection with the recovery of the CDs.
In its February 2, 1995 Memorandum and Order, the District Court reserved Joyce’s objection to the award of attorney fees pending resolution of the new trial on the validity of the Instrument of Revocation. In light of our decision to grant a new trial on the validity of the 1984 will as well as the Instrument of Revocation, we reverse the award of attorney fees to Robert and James and we remand to the District Court.
Issue 3
Whether the District Court erred in limiting cross-examination regarding the settlement agreement.
On April 8,1994, Robert, James, Gary and Marlene entered into a settlement agreement. Joyce was not a party to this agreement. Prior to trial, James and Robert filed a motion to prevent Joyce from admitting the settlement agreement into evidence at trial. The District Court granted the motion and ruled that the contents of the settlement agreement would not be admissible. However, the court ordered that any witness that was a party to the agreement could be questioned as to the existence of the agreement and as to the fact that the witness might receive a greater share of the estate if one party prevailed over the other in order to attack the credibility of the witness by showing a motive for bias or prejudice. On appeal, Joyce contends that the District Court erred in limiting cross-examination regarding the settlement agreement.
This Court will review the evidentiary decisions of a trial court to determine whether the trial court abused its discretion and will not overrule a trial court’s decisions as to admissibility of evidence unless there was manifest abuse. Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 506, 878 P.2d 248, 255 (citing Mason v. Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712).
Rule 408, M.R.Evid., forbids the introduction at trial of offers to compromise and settlement agreements. However, the Rule does permit the use of settlement agreements for limited purposes, such as proving bias or prejudice of a witness in accordance with Rule 607, M.R.Evid.
At trial, Joyce’s counsel questioned Gary, one of the settling parties, extensively regarding the settlement agreement and whether Gary would gain under the agreement if Robert and James prevailed at trial. Gary admitted that he would gain. From this cross-examination, Gary’s bias was adequately brought out and the jury had sufficient evidence of the nature and effect of the settlement agreement to judge the credibility of Gary’s testimony.
Accordingly, we hold that the District Court did not abuse its discretion in limiting the admission of the settlement agreement to show bias or prejudice of a witness.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
Mark Turner Wier (Wier) filed herein a Petition for Writ of Habeas Corpus for a Stay of Execution of Sentence and for the Setting of a Bond to Insure Appearance and Memorandum of Authorities pursuant to Title 46, Chapter 22, Montana Code Annotated.
Procedural Background
On May 1, 1996, Wier was charged with partner assault, a misdemeanor, in violation of § 45-5-206, MCA, and carrying a concealed weapon while under the influence, a misdemeanor, in violation of § 45-8-327. Wier posted a $2,000 bond and was released pending trial. On July 19, 1996, trial was held in Justice Court in Lincoln County. Wier did not appear and he was found guilty in absentia. Sentencing was scheduled for August 15,1996. There is no record of the sentencing other than a Commitment Order signed by the Justice of the Peace on August 15, 1996, wherein Wier was sentenced to five days in jail commencing August 15,1996, at 3 p.m. and ending August 20, 1996, at 3 p.m.
Wier appealed to the Nineteenth Judicial District Court, Lincoln County, on August 15, 1996, and requested a stay of execution pending his appeal. The Justice of the Peace refused to stay execution of Wier’s sentence. On August 16,1996, the District Court also denied Wier’s motion to stay execution of sentence. There is no record of any proceeding held on this motion. Wier filed a Petition for Writ of Habeas Corpus with this Court on August 16, 1996, seeking his immediate release from custody. The justice reviewing the petition declined to act in the absence of the full Court.
On August 20, 1996, this Court issued an Order staying the remainder of the sentence. The Court further ordered that the Attorney General file a response to the petition addressing the merits of Wier’s argument in addition to any procedural matters.
Wier was released from custody at 9:46 a.m. on August 20, 1996, by order of the Justice of the Peace.
Discussion
Wier argues that his incarceration was unlawful because an “appeal from a judgment from justice court abrogates that judgment” and because an “appeal to district court renders incarceration under a justice court’s order illegal.” The State contends that since Wier is no longer in custody, his claim for relief is moot and this Court should not address the substantive questions in this case.
While a petition for writ of habeas corpus is moot once the defendant is no longer in custody, State v. Sor-Lokken (1991), 247 Mont. 343, 351, 805 P.2d 1367, 1373, the issue here is one that is “capable of repetition, yet evading review.” See Weinstein v. Bradford (1975), 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350. This Court has previously stated:
When faced with constitutional questions which are capable of repetition yet could avoid review, this Court will consider the merits of the issues raised on appeal. Romero v. J & J Tire (1989), 238 Mont. 146, 148, 777 P.2d 292, 294; Butte-Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in Butte-Silver Bow:
[t]he exception to mootness for those actions that are capable of repetition, yet evading review, usually is applied to situations involving governmental action where it is feared that the challenged action will be repeated.
Butte Silver Bow, 743 P.2d at 567.
Common Cause v. Statutory Committee (1994), 263 Mont. 324, 328, 868 P.2d 604, 606-7. The constitutional issue implicated here is Wier’s right to a reasonable bail. U.S. Const. Amend. VIII; Art. II, Sec. 22, Mont. Const.
Hence we accept jurisdiction to review the substantive issues raised in this case by writ of supervisory control. We are empowered to do so by Article VII, Section 2(1) of the Montana Constitution, granting this Court “original jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law,” and by Article VII, Section 2(2) of the Montana Constitution, granting this Court “general supervisory control over all other courts.” State ex rel. Marlenee v. Dist. Court, Etc. (1979), 181 Mont. 59, 62, 592 P.2d 153, 154.
Release or detention pending appeal of a justice court decision is governed by § 46-9-107, MCA, which provides:
Aperson intending to appeal from a judgment imposing a fine only or from any judgment rendered by a justice’s court or city court must be admitted to bail. The court shall order the detention of a defendant found guilty of an offense who is awaiting imposition or execution of sentence or a revocation hearing or who has filed an appeal unless the court finds that, if released, the defendant is not likely to flee or pose a danger to the safety of any person or the community. [Emphasis added.]
Under the plain language of this statute, Wier had a right to be admitted to bail pending his appeal unless the court found that he was likely to flee or that he posed a danger to the safety of any person or to the community. Neither the Justice Court, nor the District Court made any such finding in this case.
In State ex rel. Abbitt v. Just. Ct. of Lake Cty. (1986), 220 Mont. 210, 213, 714 P.2d 140, 142, we noted that a person who has appealed from a justice court order is not necessarily entitled to release, but must go through the bail procedures. Thus, Wier must qualify for bail and the amount of his bail must be determined in accordance with § 46-9-301, MCA. Once admitted to bail, Wier’s sentence should then be stayed by the trial court pending his appeal, pursuant to § 46-20-204, MCA.
The State contends that Wier did not attempt to be admitted to bail, but only attempted to stay the execution of his sentence. However, there was no opportunity for a bail hearing in this matter as both the Justice of the Peace and the District Court Judge were unavailable. Wier had previously posted a $2,000 bond in the Justice Court proceeding to secure his release pending trial. The Justice Court still retained this bond at the time of Wier’s appeal.
Accordingly, we hold that the Justice Court erred in failing to stay the imposition of Wier’s sentence pending his appeal to District Court.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, ERDMANN, TRIEWEILER, GRAY and LEAPHART concur.
|
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
Appellant Timothy D. Súpola (Súpola) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, concluding that he was not entitled to a jury trial on his petition to challenge the suspension of his driver’s license.
Affirmed.
On February 13, 1995, Súpola was arrested for driving under the influence of alcohol. Following his arrest, Súpola refused to submit to a breath test to determine the level of his intoxication. Because of this refusal, Supola’s driver’s license was automatically suspended pursuant to § 61-8-402(3), MCA, the implied consent law.
Súpola subsequently filed a petition in the District Court challenging the validity of the license suspension. He also requested that the matter be heard by a jury. The District Court denied his request for a jury trial, concluding that Súpola was not constitutionally entitled to a jury in a proceeding to challenge the suspension of his driver’s license. Súpola appeals.
The sole question presented on appeal is whether the District Court erred in concluding that Súpola was not entitled to a jury trial on his petition challenging the § 61-8-402(3), MCA, automatic suspension of his driver’s license.
It is a question of law whether an individual is entitled to a trial by jury. In re Matter of C.L.A. and J.A. (1984), 211 Mont. 393, 395, 685 P.2d 931, 933. This Court reviews a district court’s conclusions of law de novo, to determine whether they are correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601).
Súpola first argues that the statute which provides for an appeal from a driver’s license suspension does not, by its terms, prohibit a trial by jury and that, therefore, he should be allowed to have a jury trial if he so chooses. The pertinent statute, § 61-8-403, MCA, provides in part:
(1) Within 30 days after notice of the right to a hearing has been given by a peace officer, a person may file a petition to challenge the license suspension or revocation in the district court in the county where the person resides or in the county where the arrest was made.
(2) The court has jurisdiction and shall set the matter for hearing. ...
(3) Upon request of the petitioner, the court may order the department to return the seized license or issue a stay of the suspension or revocation action pending the hearing.
(4) (a) The court shall take testimony and examine the facts of the case ....
(b) The court shall determine whether the petitioner is entitled to a license or whether the petitioner’s license is subject to suspension or revocation.
(Emphasis added.)
When construing a statute, “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 or to omit what has been inserted.” Section 1-2-101, MCA. When a statute is “plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe.” Curtis v. Dist. Court of the Twenty-first Judicial Dist. (1994), 266 Mont. 231, 235, 879 P.2d 1164, 1166 (quoting State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333).
The plain language of § 61-8-403, MCA, dictates that the court shall both examine the facts and determine the merits of the petition. The statute does not contemplate the role of a jury in such a hearing; rather, it presumes a jury will not be present and assigns to the court the task of determining both facts and law. No other interpretation is possible from a plain reading of the statute. We therefore conclude that § 61-8-403, MCA, does not provide for a jury trial.
Súpola next argues that § 61-8-403, MCA, as interpreted, violates his constitutional right to a trial by jury. Article II, Section 26 of the Montana Constitution provides:
The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.
Súpola contends that this section provides a right to a jury trial in all controversies, including a hearing regarding the propriety of his driver’s license suspension. We disagree.
The inviolate right to a jury trial is not a prospective one, automatically granted in every new proceeding which may arise. Rather, the right which is constitutionally preserved is that right to a jury trial which existed at the time the constitution was enacted. In other words, “the rule in Montana is that our state constitution only guarantees the right to a jury trial in the class of cases in which the right was enjoyed when the constitution was adopted.” Matter of C.L.A., 685 P.2d at 933 (citations omitted).
There is not, and never has been, a right to a jury trial in purely equitable actions in Montana. Downs v. Smyk (1982), 200 Mont. 334, 341, 651 P.2d 1238, 1242. In fact, an attempt was made dining the 1972 constitutional convention to extend the right to a jury trial to actions in equity, but this attempt failed. Therefore, “in equity cases, the judge may call a jury to his assistance if he chooses, but is not bound to do so.” Downs, 651 P.2d at 1242 (quoting Little v. Mackel (1968), 151 Mont. 421, 425, 443 P.2d 891, 893-94).
Suspension or revocation of a driver’s license pursuant to the implied consent law is a civil administrative sanction, not a criminal penalty. In re Petition of Burnham (1985), 217 Mont. 513, 518, 705 P.2d 603, 607. It is not intended to punish the driver, but to protect the public. Burnham, 705 P.2d at 607 (citing State ex rel. Griffith v. Brustkern (1983), 202 Mont. 438, 658 P.2d 410; In the Matter of France (1966), 147 Mont. 283, 411 P.2d 732). The hearing to determine the propriety of the driver’s license suspension is an action in equity because compensatory or punitive damages, the traditional relief afforded by a court of law, are not permitted. Instead, the only possible relief is the reinstatement of the driver’s license and the consequent resumption of driving privileges. Because the hearing is an action at equity, no right to a trial by jury exists and the hearing is not subject to the constitutional protections afforded by Article II, Section 26 of the Montana Constitution.
We are careful, however, to distinguish this purely equitable matter from other controversies which might involve both issues of equity and of law. In such cases, the presence of a legal question may serve to trigger the parties’ right to a jury trial even though equitable questions are also presented. See, for example, Gray v. City of Billings (1984), 213 Mont. 6, 689 P.2d 268. In Gray, this Court held:
where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to equitable ones or by a court trial of a common issue between the claims.
Gray, 689 P.2d at 272 (quoting Ross v. Bernhard (1970), 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729). Conversely, in the case at bar the issue presented and the possible relief afforded are purely equitable.
But Súpola argues that the suspension hearing is not a purely equitable action because his driver’s license cannot be returned to him unless and until he pays a $100 reinstatement fee. Section 61-2-107, MCA. He contends that this fee constitutes a punishment of the driver, which in turn converts the equitable action into a legal one and triggers his right to a jury trial.
Súpola argues that the reinstatement fee is a punishment but at the same time concedes that, under Burnham, the suspension itself is not. He draws this distinction on the grounds that the reinstatement fee does nothing to protect the public, while protection of the public is the rationale underlying the suspension itself. Again, Súpola misconstrues the plain language of the statute.
Section 61-2-107(1), MCA, provides:
License reinstatement fee to fund county drinking and driving prevention programs. Notwithstanding the provisions of any other law of the state, a driver’s license that has been suspended or revoked under 61-5-205 or 61-8-402 must remain suspended or revoked until the driver has paid to the department a fee of $100 in addition to any other fines, forfeitures, and penalties assessed as a result of conviction for a violation of the traffic laws of the state.
The stated purpose of this statute, as articulated in its title, is “to fond county drinking and driving prevention programs,” not to punish the driver. Drinking and driving prevention programs have the obvious effect of protecting the public by increasing public awareness of the dangers of drunk driving. Suspension of the license pursuant to § 61-8-402, MCA, is a civil sanction, Burnham, 705 P.2d at 607, and so is payment of the reinstatement fee required by § 61-2-107, MCA. Neither constitutes a criminal penalty and neither will serve to convert the suspension hearing from a proceeding at equity to a proceeding at law.
For these reasons, we hold that a driver is not entitled to a jury in a proceeding to determine the propriety of an automatic driver’s license suspension imposed pursuant to § 61-8-402(3), MCA. The decision of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and ERDMANN concur.
|
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JUSTICE ERDMANN
delivered the Opinion of the Court.
Amerimont, Inc., a Montana corporation, and Calvin Smith and Alice K. Smith appeal from the judgment entered by the Eighteenth Judicial District Court, Gallatin County, decreeing that Amerimont does not have a prescriptive easement over the property of David E. Gannett and the Montana Land Reliance, a non-profit corporation, which holds a conservation easement on Gannett’s property. We affirm.
The issue on appeal is whether the District Court erred in concluding that Amerimont does not possess a prescriptive easement over Gannett’s property.
FACTS
Amerimont purchased property located in Gallatin County from the Smiths in 1993. The property lies near the town of Manhattan and the legal description of the land is the StsSEi4 of Section 26 and the NEV4 of Section 35 and all of Section 25, all situated in Township 2 North, Range 3 East.
Amerimont’s chain of title dates back to 1887 when George Oyler obtained title to the property by homesteading a portion of the ground and purchasing different sections from private individuals. In 1924 George Oyler conveyed title to Robert Oyler, and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin Smith’s father. In 1975 Hugh Smith deeded one-half interest in the property to Calvin Smith, and when Hugh Smith died in 1990, Calvin Smith inherited the remaining one-half of the property. In July 1993, the Smiths transferred their interest to Amerimont by conveying fee title to Section 25 and executing a contract for deed on the respective portions of Sections 26 and 35.
In 1992 Gannett acquired title to the SEVi of Section 36 in Township 2 North, Range 3 East, Gallatin County. Gannett’s chain of title dates back to Annie and Enoch Sales who homesteaded the property in 1922. The Saleses conveyed the property to C. W. Zelie in 1928, and in 1930 Gallatin County foreclosed on the property after Zelie failed to pay taxes. Enoch Sales repurchased the property from Gallatin County in 1939 and then sold the land to Elwyn Freeman in 1964. Freeman sold the property to Philip Ver Wolf in 1979, and Ver Wolf conveyed his interest by warranty deed to Keith Fairbank in 1987. Fairbank executed a warranty deed to Gannett in 1992, who later that year conveyed a conservation easement on the entire property to the Montana Land Reliance.
The properties are separated by a tract of land in Section 36, which is owned by the State of Montana. Amerimont and its predecessors in interest accessed the south one-half of Section 25 by crossing Gannett’s property on a two-track dirt road. The road is approximately the width of a pickup truck and traverses a heavily grassed area. The roadway was not the only access to the Smiths’ property and they and their predecessors periodically used the road to access the homestead on their land and to gain access to the property for agricultural and recreational purposes. A map of the properties and the disputed roadway is shown below.
In 1994, Amerimont and the Smiths, filed suit against Gannett seeking to establish that they had a prescriptive easement across Gannett’s property. The case was tried before the District Court without a jury on January 19 and 20, 1995. On December 14, 1995, the District Court entered its findings of fact, conclusions of law, and order, concluding that Amerimont and the Smiths do not have a prescriptive easement over Gannett’s property. On January 2, 1996, the District Court entered judgment in favor of Gannett and the Montana Land Reliance, incorporating its earlier findings of fact and conclusions of law. This appeal followed.
STANDARD OF REVIEW
This Court reviews a district court's findings of fact to determine whether they are clearly erroneous. Dames v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a three-part test to determine whether the findings are clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
DISCUSSION
Did the District Court err in concluding that Ainerimont does not possess a prescriptive easement over Gannett's property?
To establish an easement by prescription, the party claiming the easement must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527; Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356). The burden is on the party seeking to establish the prescriptive easement and all elements must be proved. Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852).
If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use. Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852). Where the use of a way by a neighbor is by express or implied permission of the owner, continuous use of the way by the neighbor is not adverse and does not ripen into a prescriptive right. Public Lands Access, 856 P.2d at 528 (citing Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).
Amerimont argues that use of the roadway by the Oylers was sufficient to establish a prescriptive easement and that use by the Smiths was open and notorious to a degree that Gannett should have been placed on notice that the Smiths and their predecessors were making a hostile claim against his ownership. Amerimont claims that its and its predecessors’ use was continuous and uninterrupted for the full statutory time period. Amerimont maintains that the historic use of the roadway by the Smiths and the Oylers was under a claim of right and not by privilege or license.
Amerimont claims that it established the preliminary requirements of a prescriptive easement, thus creating a presumption of adverse use. According to Amerimont, the burden then shifted to Gannett to establish that the use was permissive or a neighborly accommodation and that Gannett did not bring forth any evidence to rebut the presumption of adverse use. Amerimont argues that the gates across the road were installed to control livestock and restrict public access and that the gates were never meant to keep Amerimont or its predecessors in interest from accessing their property.
Gannett argues that Amerimont and the Smiths failed to prove that their use of the road was open and notorious. Gannett relies on Greenwalt Family Trust v. Kehler (1994), 267 Mont. 508, 885 P.2d 421, to argue that Amerimont must have made a distinct and positive assertion of a right hostile to the owner. Gannett argues that without bringing such an assertion to the owner’s attention, neither he nor his predecessors in interest were placed on notice that use of the roadway was hostile. Gannett claims that he cannot now be forced to give up what is rightfully his without ever having had the opportunity to know that his title was in jeopardy. Gannett also argues that Amerimont failed to prove uninterrupted use because Gannett and his predecessor, Fairbank, required Smith to ask for a key to open the gate when he needed to use the road. According to Gannett, such an arrangement indicates Smith’s assent to Gannett’s ownership and control of the roadway and that such a position is inconsistent with a claim for a prescriptive easement. Gannett maintains that Amerimont and its predecessors’ use of the road began as permissive and that the character of that use never changed. Gannett argues that the ranchers and farmers in the area had always been good friends with strong social ties and a commitment to helping one another. According to Gannett, the close working and social relationships among the landowners engendered a practice of neighborly accommodation with respect to the use of roads across one another’s property.
The District Court found as follows:
The court finds that the close working and social relationships among neighbors engendered a custom and practice of “neighborly accommodation” with respect to use of the road across the Gannett property. ...
The court finds ... that plaintiffs and their predecessors have crossed the Gannett property with express or implied permission at all times material to this action.
Cal Smith testified Gannett and his predecessors generally locked a gate at the beginning of the road at all times pertinent to this action. ... [T]he court finds that this widespread practice of giving out keys to friends and neighbors reflects the custom and practice of neighborly accommodation in the area ....
Defendant Gannett and Keith Fairbank did not give keys to the gate to the Smiths. They required Smiths to obtain permission to cross the Gannett property every time he wanted to visit his property. The practice of locking gates and restricting access to the Gannett property is evidence that plaintiffs’use of the road across the Gannett property has always been and continues to be permissive.
Even if Mr. Smith and his father, Hugh Smith, intended to establish a right to cross the Gannett property by prescription, the evidence before the court does not show that they placed Gannett or his predecessors on notice of such hostile or adverse claim.
George Oyler’s grandson, Enos Oyler, testified that he was acquainted with Gannett’s predecessors and that “everybody got per mission” to use the property. Oyler stated that after the Saleses moved away, the new owners locked the gate and “you had to ask permission.”
Marguerite Fulker, a neighboring landowner, testified she had occasions when she had to go into the southeast quarter of Section 36 to hunt mushrooms with Elwyn Freeman and take sheep across the property. Fulker stated that neighbors in the area got along beautifully. She indicated that “[t]hey’d loan you anything they had ... and we did everything together.”
Cal Smith testified that he worked with the Saleses, the Freemans, and Philip Ver Wolf during haying season. The Smiths used the Freemans’ corrals when moving cattle. Smith and Ver Wolf checked on and worked each other’s cattle, and on at least one occasion, Ver Wolf helped move the Smiths’ cattle to another ranch in Harrison.
Cal Smith also testified in review of his earlier deposition concerning conversations he had with Sales, Freeman, and Ver Wolf:
Q: And then I apparently asked a question that starts with, ‘Yes,” and then I would like you to — having read your answer that begins at line 16, I would like to have you explain what you said in response to that question with respect to your conversations with Sales. What is Mr. Sales telling you there? Would you read that?
A: We asked a long time ago, we asked Sales about fit]. He said, ‘Ah, hell, there’s no problem. You people have been doing it for years.’ Like I said, that’s the way we get along.
Q: And I asked, “Okay. That[’s] back to [the] neighborly accommodation?” And your answer is—
A: I said, ‘Yes.”
Q: And do you recall we talked during that deposition about neighborly accommodation, do you not?
A: I recall.
Q: And again, we’re talking about the three predecessors in interest, Sales, Freeman, Ver Wolf, all said the same things to you?
A: Yeah, that’s the way to the property.
Q: ‘You don’t need to ask. Just go right on in there.”
A: That’s right, that’s the way you get there.
Q: To avoid you having to go through the whole answer, I’m going to have you begin reading at line 6. And the sentence that starts with, “We went when we — when you had to go or when you wanted to go — .” Would you read that and then complete the sentence?
A: ‘We went when you had to go or when you wanted to go, whether it be summer, winter or whatever. Nobody said boo, you can’t go. It was a gentlemen’s agreement, I’ll put it that way.”
Q: And then I said, ‘Well, more than gentlemen, could it be described as being a neighborly accommodation? It’s what one good neighbor would do to another?” And your answer is—
A: “I would hope so, or however you want to say it. It’s just that there was never any problem getting there.”
Cal Smith testified that he first remembered needing a key to open the gate when he was in high school. He stated that when Fairbank bought the place, “he did not give me a key.” Smith indicated that the first time he learned there was a problem was when Gannett locked the gate and told Smith “I’ll leave the key for you.” Smith said “[f]ine” and when Gannett failed to give him a key, Smith indicated “I went anyway.”
Fairbank testified that when he purchased the property “[w]e put our own lock on the gate ... fairly early on.” He indicated that, for the most part, he maintained a locked gate after that. Fairbank testified that no one told him that Calvin Smith had an absolute right to cross the property and indicated there were times when Smith would borrow a key.
Gannett testified as follows concerning his knowledge of the Smiths’ right to access the road across his property:
Q: And up to this point in time, as you’ve just testified, all the information that was made available to you indicated that the Smiths’ use of that quarter section was permissive?
A: Yes.
Q: Now, what inquiry did you make of Mr. Smith with respect to whether or not that was the case?
A: He mentioned — he, Cal, told me that ... “If we do sell in two different pieces of property — ”, he had always had permission to go across the Sales’ road quarter section and that’s the way he referred to the ground as the “Sales Road quarter section”—
Q: Now, I’d like to stop you there. You’ve used the word “permission”—
A: Yes.
Q: Is that—
A: That’s the exact word he used. “I have always had permission to go across that property.”
Q: Okay. Yesterday Mr. Smith testified that he told you that is was an “absolute right” that he had to go across that property. Do you recall him using the words “absolute right”?
A: No, he did not.
Q: Do you recall him using any words that would indicate a use that was other than permissive?
A: No.
Calvin Smith himself stated that:
It’s always been my understanding that the easement was there when we bought the property. That we didn’t have to tell anybody
Our review of the record indicates that the District Court’s findings are supported by substantial evidence. The court did not misapprehend the effect of the evidence, nor is this Court left with the definite and firm conviction that a mistake has been committed.
In ordering that Amerimont and the Smiths do not have a prescriptive easement over Gannett’s property, the District Court concluded that:
Plaintiffs have failed to carry their burden of showing that their use of the road across the Gannett property was open and notorious.
Plaintiffs have also failed to show that their use of the road was “uninterrupted” by the owners of the Gannett property.
Plaintiffs have also failed to establish that their use of the road was adverse.
The first element in establishing a prescriptive right is that the use be open and notorious. We have defined “open and notorious” as a distinct and positive assertion of a right hostile to the rights of the owner and brought to the attention of the owner. Lemont, 887 P.2d at 726-27 (citing Downing, 772 P.2d at 852). In the present case, neither the Smiths nor their predecessors in interest made a distinct and positive assertion to Gannett or his predecessors that a right hostile to the rights of the owner was being made. Amerimont’s assertion that the extensive use of the road by the Oylers and the Smiths should have put the owners of the servient ground on notice that the road was being used as a primary access to get to their property is simply insufficient to prove that their use was open and notorious.
The claimant must also prove that the use is continuous and uninterrupted. We have defined “continuous” use as that which is made often enough to constitute notice of the claim to the potential servient owner, and “uninterrupted use” as a use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right. Lemont, 887 P.2d at 727 (citing Downing, 772 P.2d at 852). While in the present case use of the road may have been continuous, it was not uninterrupted. Gannett’s predecessors locked the gate at the beginning of the road and supplied keys to their neighbors, including the Smiths, as a matter of accommodation. However, when Fairbank bought Gannett’s property in 1987, Fair-bank changed the locks on the gate and did not provide the Smiths with a key. Rather, the Smiths had to ask for the key to open the gate when they needed to use the road. Calvin Smith admitted that he asked both Fairbank and Gannett for keys to the gate as necessary. Such an arrangement clearly interrupted any claim of right which the Smiths allege they had to use the road.
The final requirement in establishing a prescriptive easement is that the use be adverse. To be “adverse” the use must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to and acquiesced in by the owners of the land. Lemont, 887 P.2d at 727. In most instances, adverse use will be proven (or not proven) from the same evidence by which the claimant establishes open, notorious, continuous, and uninterrupted use for the statutory period. Lemont, 887 P.2d at 727.
A use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Public Lands Access, 856 P.2d at 528. This Court has consistently reaffirmed this doctrine. See Greenwalt, 885 P.2d at 425; Lemont, 887 P.2d at 728. Furthermore, we have repeatedly held that a landowner should not be forced to give up title to property without notice of the alleged adverse claim and the opportunity to know that his title is in jeopardy. See Unruh v. Task (1995), 271 Mont. 246, 250, 896 P.2d 433, 436; Greenwalt, 885 P.2d at 424; Downing, 772 P.2d at 852.
Here, Amerimont and its predecessors had the privileged use of the roadway pursuant to the permission and neighborly accommodation extended by Gannett and his predecessors. Residents of the area routinely helped each other with farm and ranch work and the parties and their predecessors understood that this custom and practice included the ability to cross one another’s property without having to ask for permission each time, as long as the neighbors had business to attend to, did not abuse recreational privileges, and closed all gates after each passage. The roadway was used by the express or implied permission of the landowner and as a neighborly accommodation to surrounding landowners. Amerimont’s and its predecessors’ use of the road across the Gannett property was not adverse.
We therefore hold that the District Court correctly interpreted the law when it concluded that Amerimont and the Smiths do not possess a prescriptive easement over Gannett’s property.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER and GRAY concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
Appellant Frank Fuhrmann (Fuhrmann) was charged by information filed in the Thirteenth Judicial District Court, Yellowstone County, with one count of deliberate homicide. After a jury trial, Fuhrmann was found guilty of the crime charged and sentenced to a term of years at the Montana State Prison. Fuhrmann appeals.
We affirm.
Fuhrmann raises two issues on appeal:
1. Did the District Court err in admitting hearsay testimony of statements made by the victim?
2. Did the District Court err in denying Fuhrmann’s motion for a change of venue?
FACTS
This case arose out of a series of events that occurred in Billings, Montana on the evening of July 7, 1993 and into the early morning hours of July 8. At about 7:30 p.m. on July 7, the victim, Charlie Turner (Turner) was given a ride by a friend to the tattoo parlor operated by Fuhrmann. Fuhrmann and Turner had begun a relationship three months earlier when Fuhrmann gave Turner a tattoo in exchange for Turner’s promise to do odd jobs around the tattoo parlor and help with Fuhrmann’s window washing business. When Turner arrived at the tattoo parlor that evening, he and Fuhrmann discussed the rumor that marijuana plants were growing on the Rimrocks area north of Billings. They decided to drive up to investigate. Turner was a 15 year old boy, Fuhrmann a 32 year old adult.
On the way to the Rimrocks, Fuhrmann stopped at his apartment to gather a flashlight, a plastic garbage bag, a blanket, and a Kershaw knife. A Kershaw knife is unique in that different style blades can be inserted into the handle. Fuhrmann chose a fillet blade, inserted it into the handle, and placed the knife in an inside pocket of the black leather jacket he was wearing. Fuhrmann stated that he brought the knife to cut the marijuana plants. Fuhrmann did not inform Turner that he was carrying the knife:
Fuhrmann drove them up to the Rimrocks and parked his car near Swords Park. The two then walked to an area of cliffs overlooking Alkali Creek. There, according to Fuhrmann, they sat on a boulder, smoked cigarettes, and decided that they would search for the marijuana plants the next day during daylight hours. They then began to walk back to Fuhrmann’s car, with Turner in the lead. Fuhrmann was carrying the knife in one hand, the other items in his other hand. Fuhrmann contends that they had not gone more than a few steps when Fuhrmann fell forward, his momentum causing the knife in his outstretched hand to plunge into Turner’s upper right buttock.
According to Fuhrmann, Turner turned around and exclaimed “you have a knife?” then ran off in the direction of Airport Road, the main thoroughfare on top of the Rimrocks. Turner began trying to flag down passing vehicles. Fuhrmann caught up with Turner at the edge of Airport Road, where Fuhrmann contends he offered Turner the knife, handle first, as a gesture of peace. Fuhrmann maintains that Turner grabbed the knife, slashed Fuhrmann across the face, and would have inflicted more damage had Fuhrmann not disarmed Turner during an ensuing struggle. The drivers of vehicles that passed by the scene on Airport Road that night provide information to complete the story of these events.
Dorothy Semmann, who had just left Deaconess Hospital at 11:30 p.m. following her work shift as a nurse, was the first witness on the scene. Ms. Semmann was driving near Alkali Creek on Airport Road when she saw a young man appear from the side of the road into the light cast by her headlights, waving his hands. Her urge to stop to help ended abruptly when she saw another man approaching from the side of the road and she thought she was the intended victim of a car-jacking. Ms. Semmann drove home and called 911. She had not seen blood on either of the men.
Chelsea Kenyon and her friend Amy Vicars were also driving on Airport Road in the area of Alkali Creek that night when two men ran on to the road, the younger of whom approached Ms. Kenyon’s driver’s side window. Ms. Kenyon became frightened and drove on, but curiosity overcame her after a couple of minutes so she drove back to determine what was happening. Ms. Kenyon had not seen blood on either of the men.
When Ms. Kenyon returned, she saw the younger man lying in the road. Two other motorists, Clark Allard and Terrill Bracken, had stopped and were attending to the younger man, Turner. At this point, Ms. Kenyon observed that Turner was lying in a pool of blood, was having difficulty breathing, and was continuing to bleed profusely.
Mr. Allard had arrived at the scene moments before Ms. Kenyon’s return. Mr. Allard slowed his car after he saw two men in the road, one lying on the ground, the other standing above him with one hand holding the prone man’s left leg and the other hand, Allard testified, making a backhand slashing motion over the prone man’s body. As Mr. Allard pulled along side the men, he heard the prone man, Turner, say “Help me. Help me. He stabbed me.” Mr. Allard stopped his car, got out, and began to approach the men, but hesitated after Fuhrmann began walking toward him with a knife in his hand. Mr. Allard then flagged down a passing car driven by Mr. Bracken.
Mr. Bracken disarmed Fuhrmann while Mr. Allard applied pressure to Turner’s numerous stab wounds. At this time, Bracken, Allard, Ms. Kenyon, and Tisha Pfieffer, another motorist who had stopped at the scene, were all witness to statements made by Turner concerning the cause of his injuries: Turner stated that Fuhrmann stabbed him “on purpose,” and that the stabbing was “no accident.” The admissibility of these statements is the subject of the first issue Fuhrmann raises on appeal.
Turner was rushed to Deaconess Hospital, and was unconscious and in shock upon arrival. After more than three hours of surgery, doctors were still unable to stop Turner’s vigorous bleeding. Turner’s massive blood loss caused him to suffer cardiac arrest at about 9:00 a.m., July 8. Turner was pronounced dead at 9:37 a.m. Attending doctors had discovered a dozen separate stab wounds, the most serious of which were a deep wound in Turner’s right buttock and a longer slash across the inner part of his upper right arm which severed his brachial artery. The State offered expert testimony at trial that the wound to Turner’s buttock was nearly 5 inches deep, and that the configuration of the wound suggested that a knife had been inserted and withdrawn in two separate motions. Many of the other wounds were characteristic of wounds received by a person attempting to defend himself from a knife attack.
Fuhrmann was charged by information filed on July 13, 1993, in the Thirteenth Judicial District Court, Yellowstone County, with deliberate homicide. Fuhrmann pleaded not guilty to the crime charged, and subsequently raised the defense of justifiable use of force. Prior to trial, Fuhrmann filed a number of motions in limine. Most importantly for our review was his motion to exclude testimony concerning remarks made by the victim, Turner, to the effect that Fuhrmann’s actions were on purpose or not an accident. The District Court admitted the testimony, and after a jury trial that began March 7, 1994, Fuhrmann was found guilty of the crime charged.
About a week after the conclusion of the trial, Chief Deputy County Attorney Daniel Schwartz received a call from the jury foreman, who wanted to discuss the case. During their conversation, Schwartz discovered that one of the jurors had conducted an experiment dining the course of the trial. Schwartz immediately notified the court and defense counsel, and after a hearing, the court granted Fuhrmann’s motion for a new trial.
Before his second trial, Fuhrmann moved the court for a change of venue due to the publicity his case was receiving in the community of Billings. Fuhrmann informed the court that he had received three separate death threats, all prior to his first trial. The court denied Fuhrmann’s motion. Fuhrmann also renewed the motions in limine he had filed prior to his first trial. Again, the court denied Fuhrmann’s motion to exclude testimony concerning statements made by Turner regarding Fuhrmann’s actions. At the commencement of Fuhrmann’s retrial on October 18, 1994, Fuhrmann again moved for a change of venue. The court denied his motion, and after a jury trial Fuhrmann was found guilty of deliberate homicide and was sentenced to a term of years at the Montana State Prison. Fuhrmann appealed.
ISSUE ONE
Did the District Court err in admitting hearsay testimony of statements made by the victim?
This Court will not overturn a trial court’s evidentiary ruling absent an abuse of discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. Therefore, we must determine whether the District Court abused its discretion in admitting hearsay testimony of statements made by the victim, Turner.
Fuhrmann argues in his briefs submitted to us that testimony regarding Turner’s statements should have been excluded by the District Court because Turner’s statements related to Fuhrmann’s state of mind and thus are inadmissible hearsay. In his motion in limine before the District Court, Fuhrmann had two bases for his argument why the hearsay testimony concerning Turner’s statements should be excluded. First, Fuhrmann argued that Turner’s statements went to Fuhxmann’s state of mind, not his own, and thus were inadmissible hearsay. Second, Fuhrmann argued that, under Rules 701 and 704, M.R.Evid., the testimony was inadmissible because it was layperson opinion testimony which addressed the ultimate issue in dispute, i.e. Fuhrmann’s mens rea. The State responded to the motion on each of these two bases, and the court denied the motion.
On appeal, the State initially presents a procedural argument as to why this Court should not review this issue raised by Fuhrmann. The State contends that Fuhrmann has a different basis for his argument on appeal than he did at the District Court level. The State is correct in asserting that this Court adheres to the rule that “a party may not change the theory on appeal from that advanced on the District Court.” State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016. However, Fuhrmann’s argument before this Court, that Turner’s statements are inadmissible hearsay because they relate to Fuhrmann’s state of mind, is one of the two arguments that Fuhrmann raised at the District Corut level.
While Fuhrmann’s argument below did not cite Rule 803(3), M.R.Evid., specifically, it clearly referred to that Rule’s “state of mind” exception to the hearsay rule. Fuhrmann points us to two federal cases interpreting Rule 103(a)(1), Fed.R.Evid., identical in substance to Rule 103(a)(1), M.R.Evid., which hold that specific objection is required “only where the specific ground would not be clear from the context.” Werner v. Upjohn Co., Inc. (4th Cir. 1980), 628 F.2d 848, 853; see also United States v. Musacchia (2d Cir. 1990), 900 F.2d 493, 497. Moreover, this Court has approved the use of a motion in limine to preserve an objection for appeal, State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490 (citing State v. Brown (1984), 209 Mont. 502, 506-07, 680 P.2d 582, 584-85), provided the objecting party makes the basis for his objection clear to the district court. Weeks, 891 P.2d at 490.
In his Fifth Motion in Limine, dated March 4, 1994, Fuhrmann states:
The statements attributed to Turner relate to the alleged state of mind and intent of Fuhrmann. While a witness can testify about his/her state of mind, that witness cannot testify about the state of mind of another. The court has to ask itself the question, Tf a witness were asked, “Did he do it on purpose?”, would the court allow the witness to answer the question?’
The District Court did not formally rule upon this motion prior to Fuhrmann’s first trial. However, Fuhrmann renewed all of his motions in limine prior to his retrial. At that time, the District Court denied Fuhrmann’s Fifth Motion in Limine, but noted Fuhrmann’s objection to the admission of the statements and relieved him of any obligation to object again at trial. We conclude that the basis for Fuhrmann’s argument in his motion in limine was clear. His argument before us is grounded in the same theory as was his argument below. Fuhrmann properly preserved his objection and it is appropriate that we review it.
Fuhrmann contends that testimony by those who witnessed Turner state that Fuhrmann stabbed him “on purpose” and that the stabbing was “not an accident” is inadmissible hearsay and should have been excluded by the District Court. Hearsay is
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Rule 801(c), M.R.Evid. Generally, hearsay is inadmissible, but the rules of evidence provide certain exceptions. Rule 803(3), M.R.Evid. provides an exception for
[a] statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.
Fuhrmann argues that because Turner’s statements regarding Fuhrmann’s intent address Fuhrmann’s state of mind, the statements do not fall within the exception provided by Rule 803(3) and therefore any testimony concerning these statements is inadmissible hearsay. Fuhrmann also argues that Turner’s statements that Fuhrmann purposely stabbed him are statements of belief to prove the fact believed, precisely what is disallowed by the last clause in the text of Rule 803(3).
The State argues that Turner’s statements do address his own state of mind, and thus fit within the hearsay exception provided by Rule 803(3). The State contends that by claiming justifiable use of force, Fuhrmann opened the door for the State to rebut his defense with Turner’s statements, which indicated Turner’s fear of Fuhrmann and that Turner did not believe that he initiated or provoked the stabbing. The State cites State v. Losson (1993), 262 Mont. 342, 348, 865 P.2d 255, 258, and State v. Magruder (1988), 234 Mont. 492, 496, 765 P.2d 716, 719, to support its contention.
The State also raises alternative arguments, that Turner’s statements fit within two other exceptions to the hearsay rule. We decline to discuss these arguments, as the record reveals that the State has raised them for the first time on appeal. Henderson, 877 P.2d at 1016.
Some of the analysis and logic in the arguments proposed by both Fuhrmann and the State is creative, but not entirely correct. Both the State and Fuhrmann cite Magruder and Losson in their respective briefs, and both failed to discuss important points raised in those cases.
In Magruder, this Court affirmed the district court’s admission of testimony of a victim’s statements. The victim’s daughter testified that the victim “seemed worried after the [telephone] conversation [with the defendant] and told her that he’d better be ‘packing a piece’ because Mr. Magruder would be packing a piece and would be [at their home] later.” Magruder, 765 P.2d at 717. The majority concluded that the victim’s statements avoided the hearsay bar because they fit within the “state of mind” exception provided by Rule 803(3), M.R.Evid. The majority determined that the statements were evidence of the victim’s state of mind, that he was afraid of the defendant. Magruder, 765 P.2d at 718-19. Defendant had raised the defense of justifiable use of force, and the majority concluded that evidence that the victim feared the defendant was relevant. Magruder, 765 P.2d at 719 (citing United States v. Brown (D.C. Cir. 1973), 490 F.2d 758, 767). The majority pointed out that the statements were not offered for their truth, but only to show the victim’s state of mind. In support, the majority noted that the district court had given a limiting instruction to the jury, that the testimony was
not offered to prove the truth of the matter asserted, but rather to show the victim’s then existing state of mind. You are to consider the statements only in regard to the victim’s state of mind and for no other purpose.
Magruder, 765 P.2d at 718.
The dissent in Magruder, which relied heavily on Brown, 490 F.2d 758, stated that “the majority’s handling of the hearsay problem skims too lightly over the very problematic nature of the testimony.” Magruder, 765 P.2d at 720 (Sheehy, J., dissenting). The dissenting justices were concerned that the testimony, if it indeed was admissible under the “state of mind” exception to the hearsay rule, was in any event so prejudicial to the defendant as to be incurable by the court’s limiting instruction. Magruder, 765 P.2d at 720-21 (Sheehy, J., dissenting). Although the following point was not raised in the dissent, after our review of Magruder we note that while the majority on the one hand concluded that the victim’s statements fit within the “state of mind” hearsay exception, Magruder, 765 P.2d at 718, it on the other hand concluded that the statements were not offered for their truth, but only to show the victim’s state of mind. Magruder, 765 P.2d at 719. In Losson, a later case, this Court cleared up this discrepancy.
In Losson, where the defendant raised the defense of justifiable use of force, we affirmed the district court’s admission of testimony of the victim’s statements. The victim’s statements, like the victim’s statements in Magruder, indicated his fear of the defendant. We concluded that the statements were relevant, Losson, 865 P.2d at 258, and then analyzed their admissibility under the hearsay rule. Citing Brown, 490 F.2d at 762-63, we stated:
That court delineated the distinction between hearsay and non-hearsay as it related to state of mind evidence. The distinction turns on whether the statement is evidence which directly proves the declarant’s state of mind or whether the statement is evidence which circumstantially proves the declarant’s state of mind.
Losson, 865 P.2d at 259 (emphasis added).
The testimony at issue in Losson involved three statements made by the victim. The victim had stated that the defendant “threatened to kill him in the past,” and that the defendant “would kill him if he ever moved out.” We concluded that “these statements circumstantially indicated [the victim’s] state of mind toward [the defendant]; that he feared her.” Losson, 865 P.2d at 259. We explained further:
The jury was instructed not to consider whether [the defendant], in fact, threatened to kill or would kill [the victim]. Instead, the jury was instructed to consider [the victim’s] state of mind; whether he was afraid of [the defendant]. We hold that the first two statements were not hearsay.
Losson, 865 P.2d at 259.
We concluded that the third statement made by the victim in Losson was direct evidence of the victim’s state of mind. The third statement was that the victim “was afraid of his wife and thought she was going to kill him.” Since the statement contained direct evidence of the victim’s state of mind, we determined that the State necessarily was offering the statement for its truth, and that the statement therefore was hearsay. Losson, 865 P.2d at 259. However, we held that the statement fit into the exception provided by Rule 803(3) and was admissible. Losson, 865 P.2d at 259.
Based upon our analyses in Magruder and Losson, we reach the following conclusions in the instant case. First, Turner’s statements that Fuhrmann stabbed him “on purpose” and that the stabbing was “not an accident,” if they can be construed as providing evidence that Turner feared Fuhrmann, can only be construed as providing circumstantial evidence of Turner’s fear. Under that construction, the statements would be considered non-hearsay and would be admissible. Losson, 865 P.2d at 259. However, such statements must be offered only for the purpose of showing the declarant’s state of mind, and may not be offered for the truth of the matters asserted. Where we have upheld a district court’s admission of such statements, we have considered the fact that the district court issued a limiting instruction to the jury explaining the purpose for which it could consider the statements. Magruder, 765 P.2d at 718; Losson, 865 P.2d at 259.
After reviewing the record in the instant case, we find no indication that the District Court, in denying Fuhrmann’s motion to exclude testimony regarding Turner’s statements, limited the purpose for which the testimony could be offered. For that matter, there is nothing in the record which would explain why the District Court admitted the testimony at all. More importantly, the transcripts reveal that the District Court did not at any time issue limiting instructions to the jury explaining why the testimony was being offered.
To prevent any potential prejudicial effect on a defendant, and to uphold the integrity of both the hearsay rule and Rule 803(3)’s “state of mind” exception, a trial court must instruct the jury as to the limited purpose for which it may consider this type of testimony. However, both the trial court and this Court must keep a vigilant eye toward the possible prejudicial effect of such testimony even if a limiting instruction is given.
We hold that the District Court abused its discretion in admitting testimony of Turner’s statements without also giving a limiting instruction as to why the testimony was being offered and how the jury was to consider it. However, we consider this error to be harmless, due to the independent evidence in the record upon which á jury could base a guilty verdict: Turner had been stabbed at least twelve times; one of Turner’s most serious wounds, the wound to his buttock, was received before he and Fuhrmann reached the Airport Road; and, the description of the wound to Turner’s buttock given by his attending physicians and by a State crime lab expert was inconsistent with Fuhrmann’s claim that he accidentally stabbed Turner when he tripped and fell forward with a knife in his outstretched hand.
Our conclusion that the District Court’s error was harmless is consistent with this Court’s previous holdings regarding the harmless error doctrine. Where federal constitutional error, such as improper jury instruction, is involved, we have applied the harmless error rule established by the United States Supreme Court in Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11: for error to be harmless, it must be shown beyond a reasonable doubt that the error did not contribute to the verdict obtained. State v. Rothacre (1995), 272 Mont. 303, 312-13,901 P.2d 82, 88; State v. McKenzie (1980), 186 Mont. 481, 532, 608 P.2d 428, 458. In considering the prejudicial effect of a district court’s erroneous evidentiary ruling, a matter of state law, this Court has stated that “[t]he essential question is whether there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction.” Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74; State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266. This Court has noted that the federal harmless error rule and Montana’s harmless error rule are essentially the same, and that in either case overwhelming evidence of a defendant’s guilt can render harmless a district court’s error. McKenzie, 608 P.2d at 458; Brodniak, 779 P.2d at 74. We conclude that there was overwhelming evidence of Fuhrmann’s guilt, and that the District Court’s error did not contribute to his conviction. We hold that the error was harmless.
ISSUE TWO
Did the District Court err in denying Fuhrmann’s motion for a change of venue?
This Court will not disturb a district court’s denial of a motion for change of venue absent an abuse of discretion. State v. Moore (1994), 268 Mont. 20, 51, 885 P.2d 457, 477 (overruled on other grounds, State v. Gollehon, (1994), 274 Mont. 116, 906 P.2d 697). Therefore, we must determine whether the District Court abused its discretion in denying Fuhrmann’s motion for a change of venue.
Section 46-13-203(1), MCA, states that a defendant is entitled to move for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in the county.
Further, a motion for change of venue must be granted
when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.
State v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368 (citing People v. Berry (Ill. 1967), 226 N.E.2d 591, 592-93).
Fuhrmann argues that there are three grounds upon which a court could reasonably believe that prejudice actually existed in the Billings community at the time of his retrial. First, Fuhrmann points to three separate death threats that he received prior to his first trial as indicative of the inflamed passions in the community. Second, he claims that the large number of potential jurors excused for cause and the large number of potential jurors who had knowledge of the case prior to the retrial reflected the widespread prejudice in the community. Third, Fuhrmann contends that certain newspaper reports in the Billings Gazette constituted prejudicial pretrial publicity and contributed to the community-wide prejudice.
We dispose of Fuhrmann’s first ground by noting that the death threats were received prior to his first trial, where Fuhrmann did not move for a change of venue. Fuhrmann does not allege that he received any additional death threats prior to his retrial. As we are reviewing the District Court’s denial of Fuhrmann’s motion for change of venue in the context of his retrial, we see no need to address this ground.
As to Fuhrmann’s second ground, we do not agree that the fact that a large number of potential jurors had prior knowledge of his case is prejudicial and warrants a change of venue. We have held that jurors’ knowledge of the case and publicity, without more, is insufficient to warrant a change of venue since it cannot be equated with prejudice. State v. Smith (1986), 220 Mont. 364, 378, 715 P.2d 1301, 1309; see State v. Ritchson (1982), 199 Mont. 51, 55, 647 P.2d 830, 832. Moreover, it appears from the record that the court was particularly careful to question individually those jurors who indicated that they had some prior knowledge of the case, and instructed the potential jurors and the jurors ultimately chosen of their duty to render a verdict based solely on the evidence presented at trial. We see no reason to question the District Court’s exercise of discretion in relation to this ground presented by Fuhrmann.
Finally, we cannot agree with Fuhrmann that certain newspaper articles in the Billings Gazette constituted prejudicial pretrial publicity and contributed to a community-wide prejudice. A defendant seeking change of venue on the ground of prejudicial pretrial publicity must prove two elements. First, the defendant must show that the publication at issue was inflammatory. Second, the defendant must show that the publication actually inflamed the prejudice of the community to the extent that a reasonable possibility exists that he may not receive a fair trial. Ritchson, 647 P.2d at 832. The first element focuses on the nature of the publicity while the second focuses on the effect. Ritchson, 647 P.2d at 832.
In State v. Nichols (1987), 225 Mont. 438, 734 P.2d 170, we described inflammatory publicity as
editorializing on the part of the media or any calculated attempt to prejudice public opinion against [defendant] or to destroy the fairness of the pool from which [defendant’s] prospective jurors would be drawn.
Nichols, 734 P.2d at 173-74 (quoting State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350). The District Court read the copies of eleven news reports from the Billings Gazette attached to Fuhrmann’s motion for change of venue, dated August 19, 1994, and did not discover any instances of “editorializing” or “calculated attempts to prejudice public opinion.” The District Court found that the reports merely contained factual accounts of the background of the case as well as the trial proceedings. Fuhrmann notes that some reports contain references to his criminal history and to the prosecution’s initial theory that Fuhrmann had sexually assaulted Turner. However, we conclude, as did the District Court, that these bare statements were a part of “standard news accounts of court events and filed information,” news accounts that were “devoid of editorializing.”
To support his contention that the news reports inflamed the prejudice of the community, Fuhrmann points to the death threats he received prior to his first trial, the number of potential jurors in the jury pool with prior knowledge of the case, and a survey conducted by a Montana State University professor which established the Billings community’s awareness of Fuhrmann’s case. We have already explained our unwillingness to consider the death threats received prior to the first trial as indicators of alleged prejudice surrounding the retrial some six months later. We have also disposed of Fuhrmann’s argument regarding potential jurors with prior knowledge of the case; the record shows that the District Court carefully and thoroughly questioned jurors who admitted to having prior knowledge of the case, and, satisfied with the panel ultimately chosen, instructed that group of its duty to render a verdict based only on evidence produced at trial.
Finally, after reviewing the Montana State University professor’s survey, we would have to agree with the District Court’s characterization of it: “inconclusive.” 81% of the nearly 450 persons questioned in the survey stated that they had heard of Fuhrmann’s case. Of that percentage, 49% said they had an opinion of Fuhrmann’s guilt or innocence, and the remainder either did not have an opinion or didn’t know. Nearly all who had an opinion believed Fuhrmann to be guilty, but only about half claimed it would be very difficult to change their opinion. From the information elicited in the survey we cannot conclude that pretrial publicity inflamed prejudice in the Billings community, especially in light of our determination that the news reports were not facially inflammatory. See Moore, 885 P.2d at 478.
We are aware that surveys are appropriate means of determining whether prejudice exists in a community. State v. Paisley (1983), 204 Mont. 191, 194, 663 P.2d 322, 324. Where we have acknowledged a survey’s results as supporting a court’s grant of a motion to change venue, we have noted the connection between the results of the survey and extensive editorializing by the local newspaper against the defendant. Paisley, 663 P.2d at 324.
In Paisley, a criminologist’s survey submitted prior to defendant’s justice court trial concluded that the likelihood of defendant receiving a fair trial depended upon the extent of further trial publicity. The justice court trial received “editorialized” publicity, and defendant’s motion for change of venue of his district court trial was granted by the district court and affirmed by this Court. Here, we conclude that there was no editorializing by the Billings Gazette against Fuhrmann. There can be no connection indicating prejudicial publicity— the type of connection we contemplated in Paisley — between the Montana State University survey and the Gazette news reports. See Moore, 885 P.2d at 478.
A passage from Moore, where we disagreed with defendant’s claim that prejudicial pretrial publicity mandated a change of venue, summarizes our conclusions here:
Living, as we do, in a society which is continuously inundated with news coverage by the print and broadcast media, it is doubtful that most members of the community will not share some knowledge of, or about, a locally high-profile crime, and the various persons allegedly involved in its commission or its investigation. Given the inevitable conflict with the media’s constitutional right to free speech, the public’s constitutional right to know, and the accused right to a fair trial, it remains the task of the district court, in such cases, to scrupulously examine the evidence supporting a motion for change of venue to insure that the jurors who will ultimately decide the guilt or innocence of the accused are fair minded and uninfluenced by what they may have seen, heard, or read. That conclusion must necessarily be based upon not only the jurors’ responses in voir dire, but also on a careful analysis of the quantity and content of the pretrial publicity. Each case is unique and must be decided on its own merits. [State v. Bousquet, (1991), 248 Mont. 53.], 808 P.2d [506] at 508. While this was a difficult case, we are nonetheless satisfied that the trial judge conscientiously considered this issue, and that despite the pervasiveness of the media coverage, it was generally balanced and fair. We conclude that the jurors who decided [defendant’s] fate were not disposed to guilt or innocence by what they may have seen, heard, or read in the media.
Moore, 885 P.2d at 479. The standard that must be met in order for a change of venue motion to be granted is the existence of “reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.” Link, 640 P.2d at 368 (citation omitted). After reviewing the record, we hold that the District Court did not abuse its discretion when it denied Fuhrmann’s motion for change of venue, impliedly concluding that such reasonable grounds did not exist.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and ERDMANN concur.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
Appellant Marillen Walls (Marillen) appeals the decision of the Ninth Judicial District Court, Toole County, dissolving her marriage to Respondent Adrian G. Wells (Joe) and dividing the marital estate. We affirm.
ISSUES
The following issues are dispositive of this appeal:
1. Did the District Court’s err in its valuation of the marital estate?
2. Did the District Court’s err in its distribution of marital property and debts?
3. Did the District Court err by denying maintenance to Marillen?
4. Did the District Court err by denying attorney’s fees to Marillen?
5. Did the District Court err by substantively adopting Joe’s proposed findings of fact?
FACTS
Joe and Marillen were married in 1983. They separated in 1991 and divorced in 1994. No children were bom of the marriage, although each party has a minor son from a former marriage. At the time of the divorce, Joe was 66 and Marillen was 34. Before and during the marriage, Joe worked in the oil and gas business, managing his own corporation, A & G Drilling, as well as his other oil and gas interests. Marillen did not work outside of the home during the marriage, except to occasionally ran an errand for Joe’s business.
When Joe and Marillen were married, Joe’s oil and gas interests were valued at in excess of $2 million. At the time of the divorce, the oil and gas interests had decreased in value to between $500,000 and $1,000,000. In dividing the marital property, the District Court awarded the entirety of these interests to Joe, but also made Joe responsible for all debts attendant to them. Marillen was awarded her car, jewelry, furniture, clothing, and various bank accounts. Marillen appeals this division of the marital estate.
STANDARD OF REVIEW
The standard of review of a district court’s division of marital property is whether the court’s findings of fact are clearly erroneous. In re Marriage of Hogstad (1996), 275 Mont. 489, 496, 914 P.2d 584, 588. If substantial credible evidence supports the district court’s judgment, it will not be disturbed absent an abuse of discretion. Hogstad, 914 P.2d at 588; In re Marriage of Meeks (1996), [276 Mont. 237], 915 P.2d 831, 834.
Further, the district court has broad discretion in determining the value of property in a dissolution. It may adopt any reasonable valuation of marital property which is supported by the record, and its findings regarding property valuation will not be disturbed unless clearly erroneous. Meeks, 915 P.2d at 835 (quoting In re Marriage of Robinson (1994), 269 Mont. 293, 888 P.2d 895). In dividing a marital estate, the district court must reach an equitable distribution, not necessarily an equal distribution. In re Marriage of Barker (1994), 264 Mont. 110, 114, 870 P.2d 86, 88 (citing In re Marriage of Shelton (1986), 219 Mont. 456, 712 P.2d 782).
DISCUSSION
1. Did the District Court err in its valuation of the marital estate?
Marillen alleges that the District Court erred in its valuation of the marital estate because the court failed to determine the net worth of the marital assets at or near the time of the dissolution. Instead, the District Court valued the assets given to Joe at the time of trial but valued the assets given to Marillen at the time of separation.
Generally, a district court must determine the net value of the marital estate at or near the time of dissolution, prior to dividing the property. In re Marriage of Lippert (1981), 192 Mont. 222, 627 P.2d 1206; In re Marriage of Stephenson (1989), 237 Mont. 157, 772 P.2d 846. However, this Court has recognized that “under [some] circumstances, selection of a single evaluation point for determining net worth of the parties could create an inequitable disposition.” Lippert, 627 P.2d at 1208. A net valuation by the district court therefore is not always mandatory. Rather, “the test is whether the findings as a whole are sufficient to determine the net worth and to decide whether the distribution is equitable.” Stephenson, 772 P.2d at 848 (citing In re Marriage of Nunnally (1981), 192 Mont. 24, 625 P.2d 1159).
In this case, several assets last known to be in Marillen’s possession had disappeared by the time of trial. In particular, Marillen claimed that two diamond rings, other jewelry, and a large amount of cash were stolen from her car during the time the parties were separated. The District Court valued these missing assets at close to $30,000 and charged their loss against Marillen’s share of the estate. It found that, if these items were in fact stolen, the loss resulted from her negligence and carelessness in keeping such items in her car. In effect, the District Court determined that Marillen had dissipated this part of the estate. Such dissipation can justify a district court’s selection of separate valuation dates for the estates of the respective parties. In re Marriage of Hurley (1986), 222 Mont. 287, 297, 721 P.2d 1279, 1286.
Marillen also disputes the inclusion of $5000 in her share of the estate, when she had used that money to pay a retainer to her attorney prior to trial. Again, the District Court found that such payment was properly charged to Marillen as an expense incurred on her behalf during the separation. For this reason, it valued the asset as if it were still in her possession. Under the facts of this case, the valuation of the parties’ assets at different times was not an abuse of discretion.
2. Did the District Court err in its distribution of marital property and debts?
Marillen also disputes the District Court’s apportionment of the marital estate. As noted above, the District Court allotted to Joe all of the oil and gas interests, which are, at least in theory, income-producing, as well as the debts associated therewith. At the same time, the District Court allotted to Marillen the household furnishings, her car, her clothing and her jewelry. Marillen asserts that it was clearly erroneous for the court to divide the marital estate in this manner. Specifically, she asserts that the District Court erred in awarding all the oil and gas interests to Joe.
Section 40-4-202(1), MCA, provides in part:
In dividing property acquired prior to the marriage ... the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.
In this case, the oil and gas business was owned and operated by Joe prior to the marriage. While some of the specific interests were sold and others acquired during the marriage, the business as a whole did not change, and it continued to be managed solely by Joe throughout the marriage. In considering the factors listed in § 40-4-202(1), MCA, the District Court found that, while Marillen had made limited contributions as a homemaker, her contributions had not facilitated the maintenance of the oil and gas interests.
Moreover, the division of the marital estate in this case was premised not only on the fact that Joe brought the oil and gas interests into the marriage, but also on the recognition that those interests carry substantial debts and have decreased in value significantly during the time of the marriage. At the time of the marriage, Joe’s net worth exceeded $2 million. Because of the depression in the oil and gas industry, Joe’s net worth at trial had decreased to between $500,000 and $1,000,000. This net worth reflected over $350,000 in debts attendant to the business, but did not include the future expense of plugging the depleted wells, which the District Court estimated would cost well over $1,000,000.
In this case, the District Court chose to return the parties to the approximate positions they occupied before the marriage. While such a result is not required, it is permissible if the resulting appor tionment is equitable. In re Marriage of White (1985), 218 Mont. 343, 345, 708 P.2d 267, 269. When, as here, the marriage was of relatively short duration and the husband’s net worth has significantly decreased, such a division is not inequitable. See, e.g., In re Marriage of Turbes (1988), 234 Mont. 152, 762 P.2d 237. Given that Joe’s business interests predate the marriage, have decreased in value during the marriage, and were not facilitated or maintained by Marillen, the District Court’s division of the marital estate was an equitable one.
3. Did the District Court err by denying maintenance to Marillen?
Marillen next alleges that the District Court erred by denying her request for maintenance. She contends that the District Court’s finding that she is able to support herself through appropriate employment is clearly erroneous.
Section 40-4-203(1), MCA, provides in part:
In a proceeding for dissolution of marriage or legal separation ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
In this case, the District Court determined that Marillen was able to support herself through appropriate employment. It found that she is relatively young and in good health, while Joe is retired and unable to meet his own expenses because of a monthly loan payment exceeding $5000. Further, it noted that Marillen has secured work as a waitress and should be able to meet her own monthly expenses without an award of maintenance. These findings were supported by the evidence presented and are not clearly erroneous.
4. Did the District Court err by denying attorney’s fees to Marillen?
Marillen claims that the District Court erred by denying her claim of attorney’s fees. Section 40-4-110, MCA, provides:
The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
This statute is discretionary; while it allows the District Court to award attorney fees if warranted, it does not mandate such a result. A district court’s determination regarding attorneys fees will not be disturbed in the absence of an abuse of discretion. In re Marriage of Sullivan (1993), 258 Mont. 531, 540, 853 P.2d 1194, 1200.
Here, , the District Court awarded Marillen assets totalling over $65,000. While the majority of premarital assets were awarded to Joe, the disproportionate nature of the property division does not automatically entitle Marillen to attorneys fees. The District Court found that Marillen had the financial ability to pay her own fees. Given the value of the property she was awarded, this determination was not an abuse of discretion.
5. Did the District Court err by substantively adopting Joe’s proposed findings of fact?
The District Court adopted many of Joe’s proposed findings of fact and conclusions of law as its own in this case. Marillen asserts this adoption was error.
As we have repeatedly noted, adoption of one party’s proposed findings and conclusions is not in itself grounds for reversal. In re Marriage of Stufft (1996), [276 Mont. 454], 916 P.2d 767, 769 (citing In re Marriage of Purdy (1988), 234 Mont. 502, 764 P.2d 857). If proposed findings and conclusions are adopted by the court, they become the court’s own and, as such, are reviewed for clear error and correctness of law. Stufft, 916 P.2d at 769 (citing Daines v. Knight (1995), 269 Mont 320, 888 P.2d 904; and Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672). Here, we have reviewed the District Court’s findings of fact and judge that they are supported by the record and are not otherwise clearly erroneous.
A thorough review of the record in this case reveals no reversible error. The decision of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, LEAPHART and ERDMANN concur.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
Russell R. Moddison (Moddison) was charged by information filed in the Eighth Judicial District Court, Cascade County, with sexual intercourse without consent, a felony, and obstructing a peace officer, a misdemeanor. Moddison pled guilty to the felony charge as part of a plea agreement, then subsequently moved the District Court to withdraw his guilty plea. The District Court denied Moddison’s motion. Moddison appeals.
We affirm.
The issue for our review is whether the District Court abused its discretion when it denied Moddison’s motion to withdraw his guilty plea.
FACTS
The charges filed against Moddison resulted from an incident which occurred in February 1992 in the vicinity of Great Falls, Montana. Moddison, Robert Gould, Ian Johnson, Jordan Mattfeld, Tammy Archer, and Janetta Jo Clark had been drinking for a few hours at the Black Eagle Country Club when they all decided to go to the residence of Johnson and Mattfeld. At the residence, Clark and Mattfeld had a drinking contest which led to Clark drinking nearly half of a bottle of whiskey. Clark had already had nine drinks at the Black Eagle Country Club.
Clark soon “passed out” in one of the bedrooms. Moddison, Gould, and Johnson then had sex with Clark individually. All three men claimed that Clark consented.
About two hours later Moddison returned to the bedroom to check on Clark and discovered that she was cold to the touch and had no discemable pulse. The coroner later determined that Clark had died at 4:30 a.m., and at the time of death had a blood alcohol level of 0.42 gm/dl. The cause of Clark’s death was asphyxia, prompted by the extraordinarily high level of alcohol in her body.
Moddison and Gould left the residence in Moddison’s truck, but soon abandoned the truck and ran when they saw a Cascade County Sheriff’s vehicle. Moddison was later found by authorities in the basement of his mother’s house. Moddison, Gould, and Johnson were ultimately charged in a joint information with sexual intercourse without consent, or, alternatively, attempted sexual intercourse without consent. Moddison and Gould were also charged with the misdemeanor offense of obstructing a peace officer. The information was later amended to delete the alternative charge of attempted sexual intercourse without consent.
Each defendant was appointed separate counsel and each defendant pled “not guilty” to the charges. Counsel believed that a joint defense would be in their clients’ best interests because each defendant admitted to having sex with Clark but claimed that she had consented to the acts. Later, after a review of the evidence and a discussion with the Cascade County Attorney’s Office, counsel concluded that it would be in their clients’ best interests to enter into a plea agreement deal. Counsel were particularly concerned that evidence of Clark’s extreme intoxication would prevent a jury from finding that she consented to intercourse with the three defendants.
The plea agreement offered by the State required Moddison and Gould to plead guilty to the charge of sexual intercourse without consent, and required Johnson to plead guilty to an amended charge of obstructing a peace officer. In return, the State agreed to drop the misdemeanor charges against Moddison and Gould, and recommend to the court that Moddison and Gould each receive a ten year sentence with five years suspended. However, the State refused to stipulate during plea negotiations that Moddison and Gould would not have to undergo sexual offender treatment, despite the defendants’ adamant belief that the treatment was not appropriate for them. The parties eventually entered into a non-binding plea agreement in which the issue of sexual offender treatment was left to the court’s discretion.
The record reveals that the plea agreement was attractive to counsel because counsel believed that the State’s leniency toward Johnson would effectively prevent the court from punishing Moddison and Gould too harshly. Counsel also believed that the non-binding nature of the plea agreement would allow them to recommend a lesser prison term than the State would recommend. Further, Moddison’s attorney hoped that if his recommendation of a suspended prison term was accepted by the court, then the sexual offender treatment program, if it were imposed, could be completed by Moddison in a local community program.
The record also reveals that Moddison’s attorney informed Moddison of the possibility that he might be sentenced to prison and ordered to undergo a sexual offender program there. Moddison’s attorney testified that he explained to Moddison that his admission that he committed a sexual crime was required before he could successfully complete the program. Moddison steadfastly refused to make that admission, and according to Moddison’s attorney said “if he had to [admit to the crime] he would sit at the prison until he was discharged.” Moddison intended to enter an Alford plea of guilty, in which he could concede the strength of the State’s case against him without admitting that he committed a crime. See North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.
Moddison’s attorney apparently realized the potential dilemma Moddison would face if, after he entered his Alford plea, the court sentenced him to a prison term and ordered him to undergo sexual offender treatment there: by refusing to admit to his crime, Moddison would be unable to complete the program and thus would likely be ineligible for parole. Moddison’s attorney therefore advised Moddison that if such a sentence were imposed, he could choose from among three remedies: appeal the sentence, seek sentence review, or withdraw the plea.
At the October 18, 1993 change of plea hearing, Gould fired his attorney, withdrew from the plea agreement, and announced his intention to go to trial. Gould was later convicted of sexual intercourse without consent, and this Court affirmed his conviction. State v. Gould (1995), 273 Mont. 207, 902 P.2d 532.
Moddison and Johnson conformed to the plea agreement, and Moddison entered an Alford plea of guilty to the charge of sexual intercourse without consent. Moddison had previously signed the plea agreement and an “Acknowledgment of Waiver of Rights by Plea of Guilty,” and at the hearing Moddison’s attorney went through the waiver of rights and the plea agreement to confirm that Moddison understood their terms. Moddison testified that: he understood that the issue of a sexual offender program was left to the discretion of the court; he understood that the court did not have to abide by the plea agreement; he understood that the court could impose the maximum penalty provided by law; he understood that if the court did not abide by the plea agreement he could not then withdraw his guilty plea; he understood that the court could designate him a dangerous offender as well as limit his eligibility for parole; he understood that he had the option of going to trial; he voluntarily signed the plea agreement; he was satisfied with the services of his attorney; and, he believed he would be convicted of the charge if he went to trial.
Moddison’s plea was accepted by the court and sentencing was set for a later date. In the meantime, the court ordered Moddison to undergo a sexual offender evaluation in Missoula, Montana. Moddison missed three appointments with the Missoula evaluator, claiming that he did not have the money to purchase bus fare from Great Falls to Missoula. Because Moddison had not undergone the evaluation, and because additional offenses were brought to the court’s attention which did not appear in the presentence investigation, the sentencing hearing was continued to May 19, 1994. At the May hearing, the court sentenced Moddison to a ten year prison term with five years suspended. The court also ordered Moddison to complete sexual offender treatment and a chemical dependency program at the prison before being considered for release.
Moddison arrived at the Montana State Prison on May 25, 1994. He soon learned that the sexual offender treatment program had an extensive waiting list and that the program itself took at least three years to complete. On June 9, 1994, Moddison filed two pro se motions, entitled “Notice for Appointment of Counsel” and “Notice of Appeal,” with the District Court. After the District Court failed to act on Moddison’s motions, Moddison filed a motion and brief with this Court. We ordered the District Court to conduct a hearing regarding Moddison’s appointment of counsel motion. The court appointed counsel from the Montana Appellate Defender’s Office to represent Moddison. This Court again remanded Moddison’s case to the District Court after we determined that Moddison’s pro se motions were an attempt to withdraw his guilty plea. After an October 24, 1995 hearing on Moddison’s request to withdraw his guilty plea, the court denied Moddison’s request. Moddison appealed.
STANDARD OF REVIEW
We explained the applicable standard of review in State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177:
No set rule or standard exists under which a trial court addresses a request to withdraw a guilty plea; each case must be considered in light of its unique record. Our standard in reviewing a district court’s denial of a motion to withdraw a guilty plea is whether the court abused its discretion. (Citations omitted.)
DISCUSSION
Did the District Court abuse its discretion when it denied Moddison’s motion to withdraw his guilty plea?
Moddison has four bases for his argument that the court abused its discretion: first, the court failed to inform him that his parole eligibility would be restricted by the requirement that he complete the sexual offender program; second, his request to withdraw was timely and was based on advice of counsel; third, his plea was an Alford plea that was part of a package plea deal; and fourth, his plea was based on the mistaken advice of his attorneys. Moddison’s first three bases track the language of three factors which this Court will balance in determining whether a defendant has established the “good cause” required by § 46-16-105(2), MCA, which would allow him to withdraw a guilty plea:
(1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea;
(2) the promptness with which the defendant attempts to withdraw the plea; and
(3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.
Enoch, 887 P.2d at 177.
With respect to factor (1), Moddison argues that the court’s interrogation was inadequate because it failed to inform him that his parole eligibility could be restricted by his failure to complete the sexual offender program at the prison. Moddison contends that the interrogation should have specifically informed him of the conflict posed by his refusal to admit guilt and the likely sentencing condition that he admit guilt — the first step toward completing the sexual offender program — in order to gain parole eligibility. To support his argument, Moddison cites § 46-12-210, MCA, which provides, in relevant part:
(1) Before accepting a plea of guilty, the court shall determine that the defendant understands the following:
(iii) the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction;
Moddison also argues that the interrogation was inadequate because the court had little active involvement; Moddison’s own attorney conducted the interrogation.
That Moddison’s attorney, rather than the court, conducted the interrogation in the presence of the court is not reversible error, in light of our determination that the interrogation achieved its fundamental purpose: the determination of Moddison’s understanding of the consequences of entering his plea. The record reveals, as Moddison correctly points out, that the District Court was not actively involved in Moddison’s interrogation at the change of plea hearing. However, the record also reveals that Moddison’s attorney, who conducted the interrogation, ásked Moddison the same questions which we have held constitute an adequate interrogation. In State v. Allen (1994), 265 Mont. 293, 876 P.2d 639, where the court denied defendant’s request to withdraw his Alford plea, we stated:
The transcript of the hearing following Allen’s guilty plea shows that the court carefully questioned him concerning the sufficiency of his legal counsel, his feelings concerning his decision, his lack of alcohol or drug influence, his understanding of the nature of the mitigated deliberate homicide charge, the consequences to plead ing guilty to this charge, the fact that the judge would not be bound by any recommendation from the parties, his understanding of the loss of his rights in a trial situation. The court also had Allen confirm the reason why he felt he was guilty of one count of mitigated deliberate homicide. Within the court’s detailed questioning of Allen, the court explicitly informed Allen that the sentence carried a maximum sentence of 40 years. The judge then informed Allen that as the sentencing judge he could put any restrictions on a possible parole that he wished and that he would not be bound by any suggestions from anyone. Further, the court explained in great detail what a guilty plea meant to Allen in terms of foregoing rights such as confrontation of witnesses against him.
In the present case, the court specifically told Allen that he could be denied parole totally and as a consequence would have to serve all 40 years, or that he could be labeled a dangerous offender and that if so designated he would have to serve 20 of the 40 years for the offense. The court clearly informed Allen that it was under no responsibility to accept the conditions of the plea agreement reached by the parties. We conclude that the District Court sufficiently interrogated and informed Allen of the ramifications of his guilty plea.
Allen, 876 P.2d at 641. The extent of information covered in the Allen interrogation is almost exactly the same as that which was covered in Moddison’s interrogation. Furthermore, § 46-12-210(2), MCA, provides that the interrogation requirements of subsection (1) “may be accomplished by the defendant filing a written acknowledgment of the information contained in subsection (1).” Moddison signed an “Acknowledgment of Waiver of Rights by Plea of Guilty” which addressed all of the requirements of § 46-12-210(1), MCA, except one — that Moddison understood the court was not bound by any plea agreement. Moddison was well aware of the court’s discretion, as evidenced by his answers at the interrogation and by the plea agreement, which he signed.
Moddison argues, however, that because he was not questioned about the precise ramifications of his Alford plea in regard to the length of his sentence and limitation on parole, the interrogation was inadequate. We disagree.
The record demonstrates that Moddison was aware that his admission that he committed a crime was a necessary element of successful completion of the sexual offender treatment program. Moddison’s attorney testified that
[Moddison] understood that to progress through a sexual offender program he would have to admit to the offense. He felt — and I believe he took it as a matter of personal honor — that he would not admit to the offense, and if he had to, he would sit at the prison until he was discharged.
The record also demonstrates that Moddison was informed by his attorneys that the sentencing judge did not have to abide by the plea agreement, that Moddison could receive the maximum sentence of 40 years imprisonment, and that Moddison could be ordered to undergo the sexual offender program. In addition, during the interrogation at the change of plea hearing Moddison stated that he understood that the judge did not have to abide by the plea agreement and that his eligibility for parole could be limited by the sentencing judge. As it turned out, Moddison’s eligibility for parole was limited by the sentencing judge when he ordered that Moddison undergo the sexual offender program, a program which Moddison knew from the earliest plea discussions with his attorneys would be impossible to complete without his admission that he committed a crime. We conclude that, despite Moddison’s statements to the contrary, he did know of the consequences of his Alford plea, specifically that his parole eligibility could be limited by the requirement that he complete the sexual offender program, and further limited by his decision not to admit that he committed a crime. Factor (1) weighs in favor of the court’s denial of Moddison’s request to withdraw his plea.
As to the promptness factor, Moddison argues that the length of time between the entry of his Alford plea and his motion to withdraw his plea is within this Court’s allowable time frame. Moddison moved to withdraw his plea on June 9, 1994, approximately eight months after he entered his Alford plea on October 18, 1993. We have held that a ten month period between entry of the plea and the request to withdraw the plea is relatively prompt. State v. Laverdure (1984), 212 Mont. 31, 34-35, 685 P.2d 375, 377.
Alternatively, Moddison argues that his attempt to withdraw his plea was exceedingly prompt when measured from the time that he was sentenced. Moddison argues that the court’s imposition of his sentence should be the measuring point for purposes of the promptness factor because his counsel advised him that sentencing would trigger a plea withdrawal. The State has not addressed the promptness factor in its brief, and because Moddison’s request to withdraw his plea was made within this Court’s allowable time frame, we need not discuss the merits of his alternative argument. The promptness factor weighs in Moddison’s favor.
As to factor (3), Moddison argues that because his plea was a part of a “package” plea agreement, the court was under a duty to carefully examine the voluntariness of Moddison’s plea. Essentially, Moddison argues that his decision to enter a plea was influenced by and conditioned on the deals struck with the other two defendants, Johnson in particular. Moddison cites United States v. Caro (9th Cir. 1993), 997 F.2d 657, 659, to support his contention that the voluntariness of a defendant’s plea is at best questionable when his plea is a part of a “package deal” and conditioned on the pleas entered by the other participants in the deal.
Moddison’s argument, however, misses some important points. First, Gould withdrew from the plea agreement on the day of the change of plea hearing, yet Moddison and Johnson were allowed to go ahead with their pleas. Moddison’s attorneys testified that they understood that when Gould withdrew, there was no longer a “package deal” and Moddison was free to do as he wished. The attorneys discussed this with Moddison, and he entered his Alford plea. Moddison’s plea ultimately was not a part of a package deal with the other defendants; his plea was not conditioned on their pleas.
Second, our review of the record shows that Moddison’s decision to enter an Alford plea was due in large part to the overwhelming evidence against him. Moddison’s attorneys informed him of their conclusion that proving consent would be next to impossible due to Clark’s extreme intoxication at the time of sexual intercourse. In the “Acknowledgment of Waiver of Rights by Plea of Guilty”, Moddison explained why he was entering an Alford plea:
I admit to have sex with Janetta Jo Clark [sic], I believed that she had consented. However, after reading police report [sic] and considering the evidense [sic] against me I believe that the State of Montana can prove my guilt.
Therefore I am pleading guilty.
Moddison was looking after his own interests when he decided to enter his plea, a plea that was not a part of a “package deal.”
Finally, we have stated that “[t]he third factor is intended to prohibit a criminal from ‘escaping the obligations of his [or her] plea agreement after accepting the benefits thereof.’ ” State v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 217 (citations omitted). The plea agreement here certainly conferred some benefits upon Moddison: the State dropped the charge of obstructing a peace officer; the State recommended a much lesser sentence than the maximum sentence provided by law; and, the State did not recommend sexual offender treatment, but left that issue to the court’s discretion. We conclude that factor (3) weighs in favor of the court’s denial of Moddison’s request to withdraw his plea.
Moddison has raised another “good cause” indicator, one not specifically provided for by statute or within the three factors. Moddison contends that his guilty plea was based on the mistaken advice of his attorneys. Specifically, Moddison explains that his attorneys represented to him that if he were sentenced to prison and ordered to undergo the sexual offender program there, he would be able to get into the program quickly, due to his probable short term of imprisonment. This information turned out to be inaccurate, as Moddison discovered upon his arrival at the prison that he would be placed on a long waiting list for the program. Moddison also notes that his attorneys advised him that if he were sentenced and ordered to undergo the sexual offender program that he would have three remedies: he could appeal on constitutional grounds; he could pursue sentence review; or he could withdraw his plea. Moddison argues that this advice was mistaken.
While we can concede that some of this advice was inaccurate, we cannot conclude that this “good cause” factor tips the balance in Moddison’s favor. The plea agreement, the “Acknowledgment of Waiver of Rights,” and Moddison’s responses to the interrogation clearly show that Moddison had a solid understanding that his sentence was ultimately subject to the court’s unfettered discretion, Moddison understood that the court could impose any sentence within the range of the statutory minimum and maximum, that the court could restrict his eligibility for parole, and that the court could order him to undergo sexual offender treatment. We cannot see how Moddison can reasonably argue that any inaccuracies in the advice described above mean that his decision to enter into a plea agreement was based on a misunderstanding so fundamental as to render that decision an uninformed one. The record shows that the evidence against Moddison was overwhelming and that this was the reason that his attorneys advised him to enter a plea. The record also shows that Moddison was always aware that his sentence was subject to the court’s discretion. By advising Moddison as they did, the attorneys were merely explaining what they thought potential remedies were for one sentence out of many that Moddison could potentially have received.
After weighing these factors, we conclude that Moddison did not establish the “good cause” necessary for withdrawal of a guilty plea as required by § 46-16-105(2), MCA, and as elaborated in Enoch and its predecessor cases. The District Court did not abuse its discretion when it denied Moddison’s motion to withdraw his guilty plea.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, NELSON and LEAPHART concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
Todd Campbell (Campbell) appeals from the judgment and sentence entered by the Tenth Judicial District Court, Fergus County, on jury verdicts finding him guilty of two counts of sexual intercourse without consent and one count of sexual assault. We affirm.
We address the following issues on appeal:
1. Did the District Court err in denying Campbell’s motion to suppress his confession?
2. Was Campbell’s confession supported by independent corroborating evidence?
3. Did the District Court abuse its discretion in denying Campbell’s motion for a directed verdict of acquittal?
4. Was Campbell denied effective assistance of counsel?
5. Did the District Court err regarding either its order for a psychological examination or a determination that Campbell was indigent?
In late 1992, the Montana Department of Family Services (DFS), now the Department of Public Health and Human Services, received several complaints of parental neglect regarding L.D., A.D. and M.M., ages six, four and two, respectively. It removed the three girls from their mother’s home and placed them in foster care on January 28, 1993. While in foster care, the children displayed behavior and made statements indicating that they may have been sexually abused.
Jim Simonich (Simonich), a DFS social worker, reported the suspected abuse to the Lewistown Police Department (LPD) in February of 1993. Simonich also made arrangements for the girls to be examined by Dr. Nancy Maynard, a Great Falls pediatrician who specializes in conducting physical examinations in suspected child sexual abuse cases. Dr. Maynard examined the children on March 11,1993, and found physical evidence that L.D. and A.D. had been sexually abused. Her examination of M.M. did not reveal any conclusive physical evidence of sexual abuse.
Officer David Sanders of the LPD began investigating Simonich’s report that the children may have been sexually abused. During his investigation, Officer Sanders spoke with the children’s maternal grandmother, who mentioned that Campbell had babysat the children on various occasions. She indicated that she felt uncomfortable when Campbell was around the children and that she suspected that Campbell may have had sexual contacts with the girls.
Officer Sanders telephoned Campbell on April 25,1993, and made arrangements for an in-person interview; he did not tell Campbell what the interview would be about. When Campbell arrived at the police station for the interview two days later, Officer Sanders took him into an interview room and proceeded with an interview which lasted approximately one and one-half hours. During the interview, Campbell made oral admissions and also wrote a statement confessing to sexual offenses against each of the three girls. He recanted his confession later that day.
The State of Montana (State) subsequently charged Campbell with two counts of sexual intercourse without consent, involving L.D. and A.D., and one count of sexual assault, involving M.M. Campbell moved to suppress his written confession and the oral admissions made to Officer Sanders. After an evidentiary hearing, the District Court denied the motion to suppress.
A jury trial was held in June of 1994, and the jury found Campbell guilty of all three charges. The District Court sentenced him to ten years in prison, with eight years suspended, on. each charge, and ordered that the sentences run concurrently. Campbell appeals and is represented by new counsel on appeal.
1. Did the District Court err in denying Campbell’s motion to suppress his confession?
Campbell moved to suppress both the written confession and the oral admissions (collectively, the confession) made to Officer Sanders during the interview on the basis that they were involuntary. He argued that he did not understand the meaning or consequences of his confession because of his low mental capabilities and also that the officer used improper tactics during the interview.
The District Court denied Campbell’s motion to suppress. It found that Officer Sanders’ testimony regarding what happened during the interview was more credible than Campbell’s and determined, on that basis, that no improper police tactics were used during the interview. The court also found that, although Campbell did have a low intelligence quotient (I.Q.), his confession was made voluntarily. The District Court noted that Campbell had no problems hearing and responding to questions when he testified and that his responses were coherent. The court also found that Campbell exhibited the ability to recall past events and that his vocabulary was “greater than he was willing to admit.”
When a defendant moves to suppress a confession on the basis that it was involuntarily given, the prosecution must prove by a preponderance of the evidence that the confession was voluntary. Section 46-13-301, MCA. This Court reviews a district court’s findings of fact on a motion to suppress to determine whether those findings are clearly erroneous. State v. Loh (1996), 275 Mont. 460, 474-75, 914 P.2d 592, 601. “A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court has a definite or firm conviction that the district court committed a mistake.” Loh, 914 P.2d at 601 (citation omitted). It is within the province of the trial court to determine the credibility of witnesses and the weight to be given their testimony during a hearing on a motion to suppress and we do not review those determinations. State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 27-28 (quoting State v. Grimestad (1979), 183 Mont. 29, 37, 598 P.2d 198, 203).
The voluntariness of a confession is a question of fact which must take into account the totality of the circumstances under which the confession was made. Loh, 914 P.2d at 601. The totality of the circumstances includes, but is not limited to, the defendant’s age and level of education; the interrogation technique used by the police; whether the defendant was advised of his or her Miranda rights; the defendant’s prior experience with the criminal justice system; the defendant’s background and experience; and the defendant’s demeanor, coherence, articulateness, and capacity to make full use of his or her faculties. Loh, 914 P.2d at 601-602.
In the instant case, both Officer Sanders’ testimony and other evidence regarding the totality of the circumstances in which Campbell’s confession was made support the District Court’s finding that the confession was voluntary and, therefore, that the State had met its burden under § 46-13-301, MCA. Campbell was 22 years old when interviewed by Officer Sanders; he had completed the tenth grade with the help of special education classes and subsequently received his GED. Campbell’s full-scale I.Q. is 81, which is less than what is considered the normal range, but is not so low as to constitute mental retardation.
Campbell arrived at the LPD with his mother at approximately 6:00 in the evening and was taken to an interview room by Officer Sanders. Officer Sanders told Campbell that he was not under arrest, that he could leave at any time and that he did not have to answer any questions. The officer then began to read a Miranda rights form but was interrupted by other business. He asked Campbell to remain in the interview room until he returned, at which time he resumed reading the Miranda rights form. Officer Sanders testified — and the rights form indicated — that Campbell signed the statement of rights form in the space indicating that he understood his rights; Campbell also signed the form in the space which indicated that he had read the statement of rights, understood what his rights were, and was voluntarily waiving his right to a lawyer and his right to remain silent. Both signatures were witnessed by Officer Sanders. According to the officer, Campbell also verbally stated that he understood the statement of rights.
At that point, Officer Sanders began to question Campbell regarding whether he knew the three girls and their mother. Campbell responded that he did know them and that he had babysat the girls. Officer Sanders then told Campbell that an investigation was under way regarding incidents of sexual abuse against the girls and that the investigation indicated that Campbell might be involved. Campbell initially denied having any sexual contact with the girls but, as the interview progressed, he admitted that he had sexual intercourse with the two older girls and sexual contact with the youngest one. During the interview, Campbell described various incidents that occurred with each of the girls and how the girls reacted.
After Campbell made these disclosures, Officer Sanders asked him if he would make a written statement outlining what he had said during the interview. Officer Sanders brought out a form and explained to Campbell that it was a voluntary statement form. The officer testified that he read the form, including another statement of rights, to Campbell and explained that he did not have to make a statement. Campbell then filled in his name and the date, time, and location of the interview, and wrote out a statement confessing to sexually abusing the girls.
Officer Sanders testified that he did not threaten Campbell during the interview or otherwise try to intimidate Campbell into confessing, and that he made no promises to Campbell regarding leniency from either the prosecution or the court if Campbell confessed. The officer stated that Campbell appeared to understand his rights, was able to converse coherently and never indicated that he wished to stop the interview or leave the room. Officer Sanders stated that the LPD had a policy of not taping interviews by audio or video means because it usually makes the interviewee nervous and less likely to talk openly.
Campbell’s version of the interview differed markedly. He testified that Officer Sanders was threatening during the interview, yelled at him repeatedly, and promised to make it easy for him with the county attorney if he confessed. Campbell also testified that Officer Sanders told him what to write in the confession and even told him how to spell some of the words. Although he agreed that he signed the Miranda rights form, Campbell maintained that Officer Sanders did not finish reading the statement of rights to him after the interruption and that he did not understand his rights or realize that he could terminate the interview. He also asserted that he did not have his glasses with him at the interview and could not read the statement of rights and voluntary statement forms; on cross-examination, however, he testified that he had been without his glasses for approximately two years prior to the interview and could drive his car without his glasses.
Campbell contends that we must view Officer Sanders’ testimony with suspicion and that his own testimony was sufficient to preclude the State from meeting its statutory burden of establishing that his confession was voluntary by a preponderance of the evidence. We disagree.
As discussed above, the District Court accepted Officer Sanders’ testimony regarding the interview. Credibility determinations regarding witnesses who testify on a motion to suppress a confession are solely within the province of the trial court. Gould, 704 P.2d at 27-28. Moreover, the preponderance of the evidence standard required by § 46-13-301, MCA, is for the trial court — not this Court — to determine. In making that determination, the trial court assesses credibility and weighs contradictory evidence; we do not review such matters. Gould, 704 P.2d at 28. Campbell also urges that, even if his version of the interview were discounted entirely, it is “doubtful” that he understood his Miranda rights and the ramifications of signing the rights form. The extent of Campbell’s understanding goes directly to whether his confession was voluntary and voluntariness is the central question of fact to be determined by the trial court under the totality of the circumstances test. See Loh, 914 P.2d at 601. Here, the District Court weighed the evidence, assessed the credibility of Campbell and Officer Sanders and found that the confession was voluntary.
We conclude that substantial evidence regarding the totality of the circumstances surrounding Campbell’s confession supports the District Court’s finding that Campbell’s confession was voluntary, and that finding is not otherwise clearly erroneous. We hold, therefore, that the District Court did not err in denying Campbell’s motion to suppress his confession.
2. Was Campbell’s confession supported by independent corroborating evidence?
Campbell argues that his extrajudicial confession was not supported by independent corroborating evidence and, therefore, that his conviction of the offenses of sexual intercourse without consent and sexual assault cannot stand; the only authority to which he cites is Montana Criminal Jury Instruction 1-018. Neither the instruction nor the applicable statute supports his position.
In pertinent part, the District Court instructed the jury as follows regarding admissions and confessions:
A confession, as applied in criminal law, is a statement by a person made after the offense was committed that he committed or participated in the commission of a crime. An admission is a statement made by the accused, direct or implied, of facts pertinent to the issue and tending in connection with proof of other facts to prove his guilt. A conviction cannot be based on an admission or confession alone.
(Emphasis added.) The instruction was patterned on Montana Criminal Jury Instruction 1-018.
Campbell contends that, absent his confession, there was “absolutely no evidence to connect [him] to the commission of those offenses other than the fact that he babysat L.D., A.D. andM.M., at the request of their mother....” He apparently argues in this regard that the State did not present “proof of other facts” regarding the offenses of sexual intercourse without consent against L.D. and A.D. and sexual assault against M.M. as required by the instruction.
Other statements in Campbell’s briefs, as well as evidence of record, belie his contention in this regard. Campbell admits that evidence indicates that the offenses with which he was charged were committed. Further, he admits that, having babysat the children, he had the opportunity to commit the offenses. Thus, the record contains “proof of other facts” which, with his admissions and confession, tend to prove his guilt. The language of the instruction requires no more and Campbell cites to no authority suggesting otherwise.
Moreover, the law relating to independent corroborating evidence is contained in § 46-16-215, MCA. Section 46-16-215, MCA, provides that “[bjefore an extrajudicial confession of the defendant to the crime charged may be admitted into evidence, the prosecution shall introduce independent evidence tending to establish the commission of the crime charged.” The plain language of the statute requires only that the prosecution present independent evidence tending to establish that the crime was committed, not that the defendant committed it. Such independent evidence was presented here.
Dr. Maynard’s videotaped deposition regarding her physical examination of the three girls was admitted into evidence at Campbell’s trial. Dr. Maynard testified that, upon examining L.D. and A.D., she found that each had scar tissue on the hymen which would only have resulted from direct penetration into the vaginal area; in her opinion, such direct penetration was highly unlikely to have occurred accidentally. Dr. Maynard also stated that the condition of the scar tissue indicated that there had been multiple penetrations. Regarding her examination of M.M., Dr. Maynard was unable to state conclusively whether M.M. had been sexually abused, but she did testify that there were no physical findings of any penetration of the vagina.
Marla North, a therapist specializing in the treatment of sexual abuse victims and offenders who had conducted an assessment of L.D., A.D. and M.M. at DFS’ request, also testified for the State. Ms. North testified that all three girls exhibited behaviors consistent with having been sexually abused. In addition, both L.D. and M.M. told Ms. North that they had been abused. In Ms. North’s opinion, all three girls had been sexually abused. Evidence also established, as a matter of law, that the girls were incapable of consenting to the sexual intercourse and sexual assault because of their ages and, therefore, the “without consent” element of the crimes was proven. See §§ 45-5-503, 45-5-501, and 45-5-502, MCA.
The above-referenced evidence is entirely independent of Campbell’s confession and meets the requirement of § 46-16-215, MCA, that such independent evidence tend to establish the commission of the offenses of sexual intercourse without consent against L.D. and A.D., and of sexual assault against M.M. We conclude that sufficient independent corroborating evidence supported Campbell’s confession in this case.
3. Did the District Court abuse its discretion in denying Campbell’s motion for a directed verdict of acquittal?
Campbell moved for dismissal of the charges or a directed verdict of acquittal under § 46-16-403, MCA. He contended that no evidence connected him to the commission of the offenses except for his confession, that the State failed to provide corroborating evidence for that confession and, therefore, that there was insufficient evidence to go to the jury. The District Court denied Campbell’s motion. On appeal, Campbell argues that the court should have granted the motion because, although sufficient evidence established that the offenses had been committed, no evidence other than the confession proved beyond a reasonable doubt that he committed them.
This argument is, in large part, a repackaging of Campbell’s contention in Issue 2 that his confession was not sufficiently corroborated. We rejected that contention above, concluding that the State presented sufficient independent evidence to corroborate Campbell’s confession to the offenses charged.
A trial court should grant a motion for directed verdict of acquittal only when there is no evidence whatsoever to support a guilty verdict. State v. Moore (1994), 268 Mont. 20, 64, 885 P.2d 457, 484 (citation omitted). Whether to direct a verdict of acquittal is within the trial court’s discretion and we will not disturb that court’s decision absent an abuse of discretion. Moore, 885 P.2d at 484.
Here, Campbell’s confession, together with the independent evidence that the offenses were committed and that Campbell had the opportunity to commit them, provides sufficient evidence to support a guilty verdict on the charges of sexual intercourse without consent against L.D. and A.D. and sexual assault against M.M. We conclude, therefore, that the District Court did not abuse its discretion in denying Campbell’s motion for a directed verdict of acquittal.
4. Was Campbell denied effective assistance of counsel?
Campbell argues that he did not receive the effective assistance of trial counsel guaranteed by the Sixth Amendment to the United States Constitution. A defendant seeking to reverse a judgment on the basis of ineffective assistance of counsel bears a heavy burden. State v. Baker (1995), 272 Mont. 273, 282, 901 P.2d 54,59, cert, denied, _ U.S. _, 116 S.Ct. 940, 133 L.Ed.2d 865 (1996).
We apply the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in evaluating a claim of ineffective assistance of counsel. Baker, 901 P.2d at 59. The first Strickland prong requires a defendant to establish that counsel’s performance was deficient pursuant to the “reasonably effective assistance” test; if counsel acted within the range of competence demanded of attorneys in criminal cases, counsel’s performance was not deficient. Baker, 901 P.2d at 59. Moreover, judicial scrutiny of counsel’s actions must be highly deferential and counsel’s performance is strongly presumed to fall within the wide range of reasonable professional assistance. Kills on Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379 (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065).
The second Strickland prong requires a defendant to establish that the deficientperformanceprejudicedhim and deprivedhim of afair trial. Baker, 901 P.2d at 59. Prejudice is evaluated by whether a reasonable probability exists that, but for the deficient performance, the outcome of the trial would have been different. Baker, 901 P.2d at 59. A defendant must establish both deficient performance and prejudice to prevail on a claim of ineffective assistance of counsel, and this Court will not second-guess trial tactics and strategy. Baker, 901 P.2d at 59.
Campbell contends that trial counsel’s performance was deficient in failing to conduct an independent investigation regarding the offenses; in failing to obtain a psychological evaluation to establish that Campbell was unfit to stand trial; and in failing to object to having Marla North, who had evaluated the victims of the offenses, conduct his presentence sexual offender evaluation. He asserts that these deficiencies in counsel’s performance prejudiced him and deprived him of a fair trial. We address Campbell’s contentions in turn.
a. Independent Investigation
We observe that nothing of record before us relates to whether counsel independently investigated the offenses with which Campbell was charged and, if so, the extent of any such investigation. “[A]llegations of ineffective assistance of counsel which are based on facts which cannot be documented from the record in the underlying case must be raised by petition for post-conviction relief.” State v. Bromgard (1995), 273 Mont. 20, 23, 901 P.2d 611, 613 (citing State v. Courchene (1992), 256 Mont. 381, 847 P.2d 271). Thus, Campbell’s claim that his counsel did not conduct an independent investigation cannot be raised on direct appeal and is not properly before us.
b. Psychological Evaluation
Campbell’s argument regarding his counsel’s failure to obtain a psychological evaluation appears to be a composite of two different contentions, neither of which is clearly developed or supported by authority. He argues first that counsel failed to assert his lack of mental capacity to formulate the requisite “knowingly or purposely” mental state element of the offenses.
The record is clear that neither lack of mental capacity nor mental disease or defect was asserted in response, or as a defense, to the crimes with which Campbell was charged. The record is equally clear, however, that counsel made an affirmative decision not to argue that Campbell did not have the requisite mental state or mental capacity to commit the offenses; indeed, counsel told the jury that Campbell’s low I.Q. did not mean that he was not capable of committing the crimes charged. Counsel’s strategy in this case is reflected in his additional statement to the jury that the testimony would show that Campbell’s low I.Q. made him “susceptible to influence by Officer Sanders to present a false statement.” In other words, faced with the admission of Campbell’s confession, counsel sought to persuade the jury that the confession was false and resulted from Campbell’s inability to withstand Officer Sanders’ influence.
As discussed above, we do not second-guess counsel's trial tactics and strategy. See Baker, 901 P.2d at 59. We conclude, therefore, that Campbell has not established that counsel’s performance was deficient in this regard.
Campbell also argues that his counsel’s failure to obtain a psychological evaluation to determine his competence and fitness to stand trial constituted deficient performance. The record reflects that Campbell’s counsel moved for an examination of Campbell’s mental condition pursuant to § 46-14-202, MCA, and requested that Yellowstone Psychological Services be appointed to perform the examination by virtue of its expertise regarding alleged sex offenders. By Minute Entry, the District Court ordered both a § 46-14-202, MCA, examination and a sex offender evaluation. The court’s subsequent written order varied somewhat from the Minute Entry order. In its written order, the court appointed Yellowstone Psychological Services to perform the sex offender evaluation at the expense of Campbell’s family, as agreed, and observed that “[s]hould it be deemed necessary that further evaluation regarding the defendant’s competency is required, such shall be ordered.”
At the end of the later hearing on Campbell’s motion to suppress, the court inquired about whether the evaluation was to be conducted. Counsel responded that Campbell’s mother, who had retained — and was paying — him, could not afford the evaluation. Counsel also stated his uncertainty regarding whether he could establish that Campbell was indigent so as to have the evaluation performed without charge to Campbell under § 46-14-202(4), MCA. The record is silent regarding the psychological evaluation thereafter.
As set forth above, a strong presumption exists that counsel’s conduct falls within a wide range of reasonable professional assistance and the burden is on the defendant to show that counsel’s performance was deficient. See Kills on Top, 901 P.2d at 1379; Baker, 901 P.2d at 59. While it is arguable that counsel should have moved for a determination of Campbell’s indigency in order to obtain a psychological evaluation at state or county expense, it also is possible that counsel merely decided that such an evaluation was not likely to be helpful to Campbell. Such a decision, if made or considered, may have been buttressed by the District Court’s determinations in denying Campbell’s motion to suppress that, notwithstanding his low I.Q., Campbell made the confession voluntarily and did not have difficulty in testifying on that motion.
We need not speculate, however, on whether counsel’s failure to obtain a psychological evaluation of Campbell was a strategic or tactical decision rather than an act outside the wide range of reasonable professional assistance. Assuming arguendo that this failure constituted deficient performance, Campbell still must establish that the deficiency prejudiced him and deprived him of a fair trial. See Baker, 901 P.2d at 59. In other words, does a reasonable probability exist that, had the psychological evaluation been obtained, the outcome of Campbell’s trial would have been different? See Baker, 901 P.2d at 59.
In this regard, Campbell points only to the following testimony by his mother at the suppression hearing:
Q: In terms of raising your son, wasn’t it true that he had a certain diagnosis placed on him about this time of schizophrenia?
A: Yes.
Q: Do you recall that?
A: I can’t even remember the word. It’s so vague.
This testimony is sketchy at best; it provides neither a clear time frame for the question nor a clear answer that a diagnosis of schizophrenia actually was made. Furthermore, Campbell cites to no authority under which any and all diagnoses of schizophrenia result in a lack of mental capacity or a mental disease or defect as those terms are used in the law.
In addition, we observe that Campbell’s counsel made a motion on Campbell’s behalf regarding diminished capacity at the sentencing hearing. Marla North, who had performed Campbell’s presentence sex offender evaluation, filed a report and testified. Apparently based on counsel’s motion and Ms. North’s evidence, the District Court determined, for sentencing purposes, that Campbell’s mental capacity was significantly impaired at the time he committed the offenses; it did so in the context of deciding not to apply the mandatory minimum sentence ordinarily required upon conviction for the offense of sexual intercourse without consent against a victim ‘less than 16 years old [when] the offender is 3 or more years older than the victim ....’’See § 45-5-503(3)(a), MCA. Pursuant to § 46-18-222(2), MCA, mandatory minimum sentences do not apply if
the defendant’s mental capacity, at the time of the commission of the offense for which the defendant is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution.
Nothing in this additional evidence of record regarding Campbell’s mental capacity supports his conclusory allegation that the absence of a psychological evaluation prejudiced him and prevented him from having a fair trial. See Baker, 901 P.2d at 59. Nor does anything of record establish a reasonable probability that a psychological evaluation would have produced a different result in this case. See Baker, 901 P.2d at 59. Therefore, we conclude that Campbell has not established prejudice with regard to his counsel’s failure to obtain a psychological evaluation.
c. Presentence Sex Offender Evaluation
Campbell’s final allegation of ineffective assistance of counsel ■ relates to counsel’s failure to object to Ms. North, who had evaluated the victims of the offenses and testified for the State at trial, performing the presentence sex offender evaluation.
As a general rule, defense counsel’s use of objections lies within his or her discretion; in the context of an ineffective assistance claim, a “failure to object must, in addition to being error, also prejudice the defendant.” State v. Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113 (citations omitted).
The record reflects that the District Court ordered Campbell’s counsel to make the arrangements for the presentence sex offender evaluation and that counsel chose to have Ms. North perform the evaluation. We need not speculate regarding whether counsel’s affirmative choice could have constituted deficient performance under the first Strickland prong, because it is clear that Campbell has not established the prejudice prong of the Strickland test.
Campbell alleges that “it seems reasonable to assume that [Ms. North’s] objectivity in conducting the evaluation of the defendant might well have been compromised.” At best, this allegation — which is premised on both an assumption and a “might have” — can be characterized as conclusory, and conclusory allegations are insufficient to meet a defendant’s burden in establishing ineffective assistance of counsel. See Hurlbert, 756 P.2d at 1113. Moreover, as discussed above, the District Court apparently relied on Ms. North’s confidential report and testimony at the sentencing hearing in ex cepting Campbell from the mandatory minimum sentences which ordinarily would have attached upon his conviction of sexual intercourse without consent against L.D. and A.D. Thus, we conclude that Campbell has not established that having Ms. North perform the presentence sex offender evaluation prejudiced him.
In summary, we decline to address Campbell’s claim of ineffective assistance based on his counsel's failure to independently investigate the offenses with which he was charged. With regard to Campbell’s ineffective assistance allegations relating to mental state and mental capacity, and counsel's failure to object to Ms. North performing the presentence sex offender evaluation, we conclude that Campbell has not met his burden under the Strickland test. As to these latter claims, therefore, we hold that Campbell was not denied effective assistance of counsel.
5. Did the District Cotut err regarding either its order for a psychological examination or a determination that Campbell was indigent?
Campbell advances several abbreviated, and largely unsupported, arguments asserting error by the District Court, rather than by counsel, relating to the ordered psychological examination and his alleged indigency. We address each in turn.
We observe, first, that the issue statement under which the arguments referenced immediately above are set forth states that the trial corut erred in failing to order psychological evaluations prior to trial. This “issue statement” is not developed and, in any event, mischaracterizes the record. As discussed above in issue 4b, the District Corut did, by Minute Entry, order both a § 46-14-202, MCA, examination and a sex offender evaluation; its subsequent written order was specifically for the sex offender evaluation, but indicated that a § 46-14-202, MCA, examination would be ordered if required. Moreover, Campbell concedes that the court ordered the requested evaluation.
Next, Campbell argues that, in light of the District Court’s order for an evaluation of his mental competency, the court erred in failing to ensure that its order was carried out. He relies on §§ 46-14-202(1) and (4), MCA, and State v. Bartlett (1995), 271 Mont. 429, 898 P.2d 98.
Section 46-14-202(1), MCA, provides that, if a defendant or defense counsel files a written motion requesting an examination or if the issue of a defendant’s fitness to proceed is raised by the court, the prosecution or defense counsel, the district court “shall appoint” a qualified professional to examine and report on the defendant’s mental condition. The language of the statute is mandatory on its face and we have so held. See Bartlett, 898 P.2d at 100. We reversed the trial court’s denial of a § 46-14-202, MCA, motion for examination in Bartlett, observing that the statute, which originally had vested a measure of discretion in the trial court regarding the grant or denial of such a motion, is now compulsory. Bartlett, 898 P.2d at 100.
In the present case, Campbell’s counsel filed a written motion for an examination pursuant to § 46-14-202, MCA, and the District Court granted the motion, as required by the statute and Bartlett. In arguing that the court erred “in failing to follow up on its own order,” Campbell seeks to place an affirmative duty on the trial court to “enforce” the order granting defense counsel’s motion. Nothing in § 46-14-202(1), MCA, or Bartlett imposes such an obligation.
Campbell argues separately that the District Court was required, sua sponte, to determine that Campbell was indigent for purposes of obtaining the examination without cost to Campbell or his family. He relies on the portion of § 46-14-202(4), MCA, which provides that
[i]f the defendant is indigent..., the cost of the examination must be paid by the county or the state, or both, according to procedures established under 3-5-902(1).
Nothing in § 46-14-202(4), MCA, requires, or even suggests, that a district court must sua sponte raise and determine the question of a defendant’s indigency upon a motion for examination thereunder. Nor does Campbell cite to any authority imposing such a requirement.
Moreover, in the present case, no showing was made that Campbell was indigent for purposes of obtaining the examination at county or state expense under § 46-14-202(4), MCA. No determination of indigency had been requested or made for purposes of court-appointed counsel under § 46-8-111, MCA, and, indeed, the motion for examination pursuant to § 46-14-202(1), MCA, specifically was premised on payment by Campbell or his mother. We cannot ascribe error to a district court for failing to take an action neither requested by the party nor required by the law.
We conclude that the District Court did not err in failing to enforce its order for a psychological examination. We further conclude that the court did not err in failing to determine, sua sponte, that Campbell was indigent for purposes of that examination.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and ERDMANN concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
This is an appeal from the judgment of the Thirteenth Judicial District Court, Yellowstone County, declaring J.B. a youth in need of care and granting continued temporary custody of J.B. to the Montana Department of Family Services through May 1996.
We reverse and remand.
We address the following issue as dispositive:
Did the District Court err in granting continued temporary custody of J.B. to the Montana Department of Family Services?
FACTS
In September 1993, the Yellowstone County Attorney's Office, on behalf of the Montana Department of Family Services (DFS), petitioned for temporary investigative authority and protective services for five children of T.B. In a report to the court attached to the petition, a social worker described the problems T.B. and her children were having individually and as a family. The court granted the petition.
On January 20,1994, the District Court issued an order declaring all five children to be youths in need of care. The order granted DFS temporary custody of the children. The court’s order was based on a social worker’s report which, like the September 1993 report, described the difficulties T.B. was having raising her children. This report mentioned that appellant, the natural father of one of the children, J.B., had indicated his desire to obtain custody of J.B. Appellant, who resides in Boulder, Colorado, was present at this hearing and stipulated to DFS’s request for temporary custody. On March 29,1994, the District Court approved a treatment plan for the appellant which required that he submit to psychological and chemical dependency evaluations.
On June 30,1994, DFS petitioned for permanent legal custody and termination of parental rights and the right to consent to adoption. In the petition, both J.B’s mother and the appellant were listed as parents, although the petition requested only the termination of the mother’s parental rights. DFS asked the court for an order granting temporary custody of J.B. to DFS for an additional six months. On September 30,1994, appellant filed his response to DFS’s request and also petitioned the court for custody of J.B.
Ahearing was held on DFS’s petition in November 1994. Appellant again stipulated that DFS could retain temporary custody for an additional six months. On December 12, 1994, the District Court issued an order to that effect. This order also terminated the parental rights of J.B’s mother, T.B.
On April 7, 1995, the District Court approved a second treatment plan for appellant. The treatment plan required appellant to submit to four random urinalyses per month and to begin counseling to learn how to meet the emotional needs of his child. After the approval of the second treatment plan, appellant again petitioned the court for permanent custody of J.B. DFS responded by seeking to extend its temporary custody of J.B. for an additional year.
A hearing on both appellant’s petition and DFS’s motion for an extension of custody was scheduled for July 12, 1995. After the hearing, the District Court determined that DFS should retain temporary custody of J.B. until May 18, 1996. Appellant filed a notice of appeal on September 20, 1995.
DISCUSSION
Did the District Court err in granting continued temporary custody of J.B. to the Montana Department of Family Services?
In their respective briefs, in the context of the grant of custody to DFS, the parties have raised issues related to but differently phrased from the issue we pose here. Based on the record, we conclude that our formulation of this issue is correct and effectively disposes of those issues raised by the parties.
This Court has held that a non-parent may be entitled to commence a child custody proceeding. In re Marriage of K.E.V. (1994), 267 Mont. 323, 883 P.2d 1246; In re Custody of R.R.K (1993), 260 Mont. 191, 859 P.2d 998 (provided that the non-parent can establish standing). Conversely, we have also recognized the need to uphold the constitutionally protected rights of a natural parent to his or her child. Babcock v. Wonnacott (1994), 268 Mont. 149, 152, 885 P.2d 522, 524; In re Matter of Roney (1977), 174 Mont. 282, 570 P.2d 575.
In the present action, there are two parties petitioning for custody of the child: J.B.’s natural father and the State of Montana (through DFS). For a court to have jurisdictional authority to grant custody to a non-parent, certain steps must be followed. When the State is a party to a custody proceeding, it initially must file a petition in a district court alleging the nature of the legal custodian’s abuse or neglect. Section 41-3-401, MCA. After the submission of the petition, a court mil then hold an adjudicatory hearing to determine if the child is a “youth in need of care.” Section 41-3-404, MCA. If the child is determined to be a youth in need of care, the court will then set a date for a dispositional hearing. At the dispositional hearing, the court has the authority to transfer legal custody of the child. Section 41-3-406, MCA.
In this matter, such a petition was submitted. All five children were declared youths in need of care. However, the allegations of abuse and neglect were made in the context of the termination of parental rights of the then custodial parent, J.B’s mother T.B. In addition to the rights parents may have as a couple, they also have individual rights with respect to their children. In re Matter of T.E.R. (1979), 180 Mont. 340, 346, 590 P.2d 1117, 1121.
The State did not petition for the termination of appellant’s parental rights. Indeed, upon the termination of the mother’s parental and custodial rights, appellant was entitled to custody of J.B. Babcock, 885 P.2d at 524.
In Babcock, the mother was unable to provide care for the child due to incarceration. The district court in that case awarded custody to the child’s great aunt. This Court reversed, holding that since the mother was unable to care for the child, the father was entitled to the custody of the child. Babcock, 885 P.2d at 524. This Court based its decision in part on the constitutionally protected rights parents have to a child. Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. The Court further relied on § 40-6-221, MCA, which provides in part that:
The father and mother of an unmarried minor child are equally entitled to the custody, services, and earnings of the child. If either parent be dead or unable or refuses to take the custody or has abandoned his or her family, the other is entitled to the custody, services, and earnings of the child, unless custody is determined otherwise pursuant to 40-4-221. (Emphasis added.)
We conclude that when the court terminated T.B.’s parental rights, she was unable to take custody of J.B. Therefore, appellant, the other parent, was entitled to custody. This entitlement is not immune from contest, but the contesting party, here DFS, must follow the proper procedure outlined above in order to obtain custody. A parent’s right to custody in this situation is not so fleeting that it can hinge on a court’s disposition of a related yet distinct matter. The District Court determined J.B. to be a youth in need of care and granted temporary custody to DFS based on its consideration of T.B.’s conduct toward the child; to relieve appellant of custody, the court was required to consider his conduct as well.
In other words, in order to have the jurisdictional authority to award DFS temporary custody, the court must determine that J.B. is a youth in need of care. The court must make this determination on the basis of evidence of appellant’s abuse or neglect. Section 41-3-102(17), MCA, defines a youth in need of care as a “youth who is abused or neglected.” Section 41-3-102(5)(a), MCA, defines “child abuse or neglect” as:
(i) harm to a child’s health or welfare; or
(ii) threatened harm to a child’s health or welfare.
(b) The term includes harm or threatened harm to a child’s health or welfare by the acts or omissions of a person responsible for the child’s welfare.
DFS’s original petition does not allege abuse or neglect on the part of appellant. However, both DFS and the court raised concerns about appellant’s prior chemical dependency problems. Appellant stated and various examinations confirmed that he had not used alcohol or drugs for years. The concerns of DFS and the court were based largely on the results of a urinalysis in which appellant tested positive, but the record shows that the test results were incomplete and should properly have been considered inconclusive. In any event, these concerns clearly do not amount to a consideration of allegations of child abuse or neglect on the part of appellant, and do not provide a sufficient basis on which to conclude that J.B. would be in danger of harm or threatened harm. See In re Matter of M.G.M. (1982), 201 Mont. 400, 408, 654 P.2d 994, 998.
The court failed to address any evidence of appellant’s abuse or neglect of the child. “[A] finding of abuse, neglect, or dependency is the ‘jurisdictional prerequisite for any court ordered transfer of custody.’ ” M.G.M., 201 Mont, at 409, 654 P.2d at 998 (citations omitted). We hold that the District Court erred in concluding that J.B. was a youth in need of care, and therefore the court erred in granting DFS temporary custody.
Our holding effectively disposes of the other issues raised by the parties. We reverse and remand for proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER, GRAY, LEAPHART and ERDMANN concur.
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] |
JUSTICE ERDMANN
delivered the Opinion of the Court.
Amerimont, Inc., a Montana corporation, and Calvin Smith and Alice K. Smith appeal from the judgment entered by the Eighteenth Judicial District Court, Gallatin County, decreeing that Amerimont does not have a prescriptive easement over the property of M. M. Anderson and Norma Jean Anderson. We affirm.
The issue on appeal is whether the District Court erred in concluding that Amerimont does not possess a prescriptive easement over the Andersons’ property.
FACTS
Amerimont purchased property located in Gallatin County from the Smiths in 1993. The property lies near the town of Manhattan and the legal description of the land is the St^SEV4 of Section 26 and the NEV4 of Section 35 and all of Section 25, all situated in Township 2 North, Range 3 East.
Amerimont’s chain of title dates back to 1887 when George Oyler obtained title to the property by homesteading a portion of the ground and purchasing different sections from private individuals. In 1924 George Oyler conveyed title to Robert Oyler and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin Smith’s father. In 1975 Hugh Smith deeded one-half interest in the property to Calvin Smith and when Hugh Smith died in 1990, Calvin Smith inherited the remaining one-half of the property. In July 1993, the Smiths transferred their interest to Amerimont by conveying fee title to Section 25 and executing a contract for deed on the respective portions of Sections 26 and 35.
In 1975 the Andersons acquired Section 29 in Township 2 North, Range 4 East, among other parcels, by warranty deed from Mabel Geraldine McElwee, n/k/a Mabel Geraldine McElwee Vergeront. Section 29 is situated one mile directly east of Amerimont’s Section 25 and the two Sections are separated by Section 30, which is owned by the State of Montana and leased to the Andersons. The Andersons’ predecessors in interest are Orie and Mabel Geraldine McElwee who purchased the property in 1944. When Orie McElwee died in 1973, Mabel Geraldine McElwee obtained sole ownership of the land.
When the Andersons purchased Section 29, there was a dirt road that entered Section 29 at a point near their home. The roadway branches off from the Spaulding Bridge Road and runs in an east-west direction across the extreme southern boundaries of Sections 29 and 30, eventually leading to the Smiths’ residence on Section 25. The roadway is barricaded by a series of gates which have remained closed and at times locked by the Andersons and the McElwees. The road is used for agricultural, recreational, and residential purposes. A map of the properties and the disputed roadway is shown below.
In 1994, Amerimont and the Smiths filed suit against the Andersons seeking to establish they had a prescriptive easement across the Andersons’ property. The case was tried before the District Court without a jury on January 17 and 18, 1995. On December 18, 1995, the District Court entered its findings of fact, conclusions of law, and order, concluding that Amerimont and the Smiths do not have a prescriptive easement over the roadway passing through Section 29, but instead have permissive use of the road. On January 18, 1996, the District Court entered judgment in favor of the Andersons, incorporating its earlier findings of fact and conclusions of law. This appeal followed.
STANDARD OF REVIEW
This Court reviews a district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a three part test to determine whether the findings are clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial corut has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
DISCUSSION
Did the District Court err in concluding that Amerimont does not possess a prescriptive easement over the Andersons’ property?
To establish an easement by prescription, the party claiming the easement must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527; Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356). The burden is on the party seeking to establish the prescriptive easement and all elements must be proved. Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; Downing v. Grover (1989), 237 Mont. 172,175, 772 P.2d 850, 852). lb be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to and acquiesced in by the owners of the land. Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 185, 887 P.2d 724, 727.
If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use. Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852). Where the use of a way by a neighbor is by express or implied permission of the owner, continuous use of the way by the neighbor is not adverse and does not ripen into a prescriptive right. Public Lands Access, 856 P.2d at 528 (citing Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).
Amerimont claims that the historic use of the roadway was sufficient to establish an easement by prescription over the Andersons’ property. Amerimont argues that the Oyler family began using the road in 1887 to reach the homestead on Section 25 and that use of the road continued uninterrupted into the time that the Smiths obtained ownership of the land. Amerimont argues that the use of the road was open and notorious to such a degree that the Andersons should have been placed on notice that the Smiths were making a hostile claim against their ownership.
Amerimont claims that the Smiths and the Oylers used the road under a claim of right and that this claim was clearly known by the Andersons and their predecessors in interest who did nothing to prevent the continued use from 1887 to 1993. Thus, according to Amerimont, the road was used adversely and not as a mere privilege or license revocable at the pleasure of the Andersons or their predecessors in interest. Amerimont acknowledges the existence of gates across the road, but claims that the gates were installed primarily for livestock control and secondarily, to control public access. Amerimont claims that the gates were never meant to keep Amerimont, the Smiths, or the Oylers from accessing their property.
The Andersons argue that from 1946 to 1993 neither they nor the McElwees had a dispute with any neighboring ranchers or property owners, including the Smiths, concerning use of the roadway across their land. The Andersons claim that use of the road by the Smiths and their predecessors was always permissive and therefore never adverse and/or hostile. The Andersons argue that since 1944 they'and the McElwees constantly exercised their right to control access passing over Section 29 to neighboring landowners, including the Smiths and the Oylers. The Andersons note that they and the McElwees always closed the series of gates passing over the route and locked the gates on a monthly, if not weekly basis. According to the Andersons, Amerimont and the Smiths failed to prove the elements necessary to establish a prescriptive easement.
The District Court found as follows:
There is abundant evidence by reputable witnesses that homesteaders who initially lived in this area where Amerimont’s land is located, particularly the Oyler family, developed the common practice or common rule of allowing or utilizing a neighbor’s permissive use to reach land by crossing over each other’s land provided the neighbor closed all gates and didn’t injure the land. The record indicates that the Oyler family had friendly and amiable relations [with] all the neighbors in the area particularly Orie and Mabel Geraldine McElwee. Further, the record is clear that Hugh Smith had particularly good neighborly relations with Mike Anderson from 1975 until Mr. Smith’s death in 1990. Mike Anderson’s testimony regarding his assistance provided to Hugh Smith in opening gates as Mr. Smith would pass through the Anderson property is evidence of “neighborly accommodation”.
Because of this long standing friendship among neighboring property owners, including plaintiffs’ predecessors in interest, the use of the road crossing the Anderson property was never adverse and/or hostile. Use of the road was always permissive.
The Andersons and their immediate predecessors in interest, the McElwees, have exercised complete dominion over the route passing through Sec. 29 since 1946. They have required as a condition of use that all gates be closed. They locked the gate from the county road on a monthly if not weekly basis.
There is no evidence that Amerimont and its predecessors in interest to Sec. 25 ever possessed a key or combination to the gates controlling access to Sec. 29 which have been frequently locked since at least 1944.
The District Court concluded that:
Amerimont and the Smiths have the permissive use of the roadway passing over Sec. 29. Amerimont and the Smiths do not have an easement by prescription over the roadway passing through Sec. 29.
Our review of the record indicates that use of the roadway was allowed as a neighborly accommodation and by permission of the Andersons and their predecessors in interest. George Oyler’s grandson, Enos Oyler, testified that he knew the McElwees and had used the roadway going across Section 29. He stated that he worked for a man named Omen whose family was “friends or neighbors” with the McElwees and they had given Omen and his work crew permission to cross the road.
Mrs. Vergeront [Mabel Geraldine McElwee] testified in her deposition as follows:
Q. Mrs. Vergeront, I’d like to ask you some more general questions regarding the customs of your neighbors in allowing each other to use property and cross over property. Can you explain what your understanding was with respect to other neighboring landowners in utilizing their property or when they utilized your property?
A. Permission was always asked.
Q. Now, was permission required every time a neighbor wanted to go across another neighbor’s property?
A. It was for us.
Q. So anytime somebody wanted to use Section 29 they had to specifically ask you each time?
A. Yes.
Q. Was there ever times when you found somebody going across the road on Section 29 that had not asked for permission?
A. Occasionally.
Q. And what happened when you discovered somebody had used or was’attempting to use this road without your permission?
A. We always found out what their purpose was on our place and why they hadn’t asked permission and explained to them that permission was always required.
Q. Now, you indicated earlier here that you locked the gate and closed the gate to protect your property.
A. Yes.
Q. What on your property was there to protect?
A. Well, the wear and tear on the land for one thing, our crops for another thing, keeping track of our cattle. And we also had a rock quarry that we mined pictured flagstone. And we had to protect that because — one of [the] reasons for the locks on the gate was that people would come, if we weren’t home, and go — they knew where the rock quarry was and they would take rock. And that was part of our income.
Q. So are you certain that every time you left the property for an extended period of time you would lock the gate?
A. Yes.
Norma Jean Anderson testified that she “absolutely” made a conscious effort to keep people from traveling over the property. She indicated that she and her husband had a congenial relationship with Hugh Smith and that in the late 1970s or early 1980s they began interacting with Calvin Smith instead of his father. Mrs. Anderson testified that Calvin Smith would call in advance to use the roadway across Section 29 and that in her opinion, the calls were to “ask us if it was okay.” She indicated that “[y]ou could call [the arrangement] permission” and noted that if she knew in advance that Smith was coming, she would go down and unlock the gates — or if they were unlocked, she would say “[s]ure, go ahead. The gate’s open.”
Michael Anderson testified as follows:
Q: After you began ownership in Section 29 in 1975, what was your practice with respect to allowing other people to use this roadway?
A: Everyone that — anyone that wanted to use it at any time had to have permission.
Q: And did you ever deny permission?
A: Yes.
Q: With respect to neighbors in the area, did you establish a pattern of their use that implied a permission?
A: Well, the neighbors always called and sometimes they were denied. If we had the sprinkler pipe out — I mean, you can’t drive over the sprinkler pipe. And so, I wouldn’t say even a neighbor that might have had an implied permission if they wanted to use it, they were certainly always entitled to that but they weren’t entitled to drive over the sprinkler pipe and we didn’t shut off the sprinkler for them.
Q: When you say, “entitled”, what do you mean by that? In your—
A: By virtue of our grant of permission they would — and sometimes if they needed to go where we were sprinkling, we would outline one of the roads where they could maybe loop around the field or avoid the sprinkler pipe in some fashion.
Q: Backing up. When you purchased the property, did you find the gates locked?
A: Yes.
Q: Did you acquire the keys to the locks on those gates when you purchased the property?
A: Yes, I did.
Q: Since that time, have you continued to lock those gates on a regular basis?
A: Yes.
The record indicates that the Andersons and their predecessors in interest have exercised complete dominion and control over the roadway passing near their home in Section 29. The evidence indicates that gates over the roadway were used to control not only livestock, but also to restrict access to the property and to protect the property from theft. Any individuals, including the Smiths and their predecessors in interest, who used the road did so at the express or implied permission of the Andersons and their predecessors in interest. In Greenwalt Family Trust v. Kehler (1994), 267 Mont. 508, 885 P.2d 421, we stated that where there is a community understanding or a local custom of allowing neighbors to cross the edges of neighboring fields, it is considered permission. Greenwalt, 885 P.2d at 425. In the present case, such a pattern of neighborly accommodation persisted for years and we therefore determine that use of the roadway by Amerimont and the Smiths was not adverse and cannot ripen into a prescriptive easement.
We hold that the District Court’s findings of fact are supported by substantial evidence and are not otherwise clearly erroneous. The District Court correctly interpreted the law when it concluded that Amerimont and the Smiths do not possess a prescriptive easement over the Andersons’ property.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and GRAY concur.
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The petitioner, Steven D. Hardy, filed a petition for post-conviction relief in the District Court of the Third Judicial District in Deer Lodge County. The District Court denied the petition. Hardy appeals from that decision. We affirm the judgment of the District Court.
The issue on appeal is whether the District Court erred when it denied Hardy’s petition for post-conviction relief.
FACTUAL BACKGROUND
In 1989, Steven D. Hardy was charged by information with seven counts of burglary. Pursuant to a plea agreement, he pled guilty to four of those counts. The District Court sentenced him to four concurrent terms of ten years in prison, with nine years suspended. In 1990, he was released on probation to serve the suspended portion of his sentence; and pursuant to §§ 46-23-1101 to -1106, MCA, the “Interstate Compact,” Montana authorities transferred the supervision of his probation to the State of Utah.
In 1991, Hardy was arrested in Utah, and charged with two counts of felony assault. At that time, he contacted David Robbins, his Montana probation officer. In an affidavit submitted in this proceeding, Robbins stated that he advised Hardy that the State of Montana’s general policy is that probation revocation proceedings are not initiated if the crimes are misdemeanors and the supervising state agrees to continue supervision. Hardy ultimately pled no contest to two reduced charges of misdemeanor assault on a police officer. Prior to his sentencing hearing, however, he was again arrested and charged with aggravated assault. Utah probation officials subsequently informed the State of Montana that they were no longer willing to supervise Hardy’s probation.
Based on the assault convictions and the State of Utah’s refusal to continue the supervision of Hardy’s probation, the Deputy County Attorney for Deer Lodge County, Montana, filed an application for a bench warrant and a petition to revoke Hardy’s suspended sentence. Attached to the petition were documents regarding the Utah criminal proceedings, and an interstate case report in which the Utah Department of Corrections requested that Montana extradite Hardy after adjudication of the Utah charges. Hardy was sentenced in Utah, and subsequently returned to Montana for his probation revocation hearing.
Prior to the probation revocation hearing, the District Court received and filed letters from Hardy in which he set forth facts which corroborated his guilty pleas to the Utah charges. Then, at the April 1992 probation revocation hearing, Hardy appeared, with counsel, and admitted the allegations in the State’s petition.
The District Court: (1) revoked the suspended portion of Hardy’s sentence; (2) sentenced him to four concurrent terms of nine years; and (3) ordered that he shall not receive credit for his “street time” (the two years he spent on probation in Utah).
In November 1994, Hardy filed a petition for post-conviction relief. On December 14, 1995, the District Court denied the petition, and entered its findings of fact, conclusions of law, and order.
DISCUSSION
Did the District Court err when it denied Hardy’s petition for post-conviction relief?
The standard of review of a district court’s findings of fact is whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
On appeal, Hardy contends that the District Court erred when it denied his petition for post-conviction relief. He claims that the revocation of his probation was invalid, and that, therefore, his probation should now be reinstated. Specifically, he asserts that the revocation of his probation was invalid for the following three reasons: (1) he was denied a preliminary on-site hearing; (2) Dave Robbins, his Montana probation officer, assured him that his probation would not be revoked for misdemeanor convictions; and (3) the District Court arbitrarily denied him credit for his “street time” when it failed to sufficiently set forth, in the record, its reasons for the denial.
1. THE DENIAL OF A PRELIMINARY ON-SITE HEARING
After Utah officials refused to continue the supervision of Hardy’s probation, he was extradited and returned to Montana for his probation revocation hearing. Prior to his return, however, he was denied a preliminary on-site hearing. He asserts that this denial violated his rights pursuant to (1) the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and (2) § 46-23-1103, MCA. We will address both of these alleged violations separately.
A. DUE PROCESS
In Morrissey v. Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, the U.S. Supreme Court held that a parolee’s liberty involves significant values entitled to the protection of the due process clause of the Fourteenth Amendment; and that termination of that liberty requires an informal hearing to insure that the finding of a parole violation is based on sufficient facts to support the revocation. In Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, the U.S. Supreme Court extended and applied the principles announced in Morrissey to probation revocation proceedings.
In State v. Howell (1986), 222 Mont. 136, 720 P.2d 1174, we analyzed the due process requirements established by Morrissey and Gagnon in the context of a Montana probation revocation proceeding. Howell was a Montana probationer under supervision in Idaho when he was arrested and jailed for assault. Apetition to revoke probation was filed, and he was returned to Montana. He later claimed that the failure to conduct a preliminary on-site hearing in Idaho denied him due process as required by Morrissey and Gagnon. We rejected his claim, and held that he “was not deprived of a liberty interest by the failure of the authorities to provide for him a preliminary or on-site hearing.” Howell, 222 Mont, at 140, 720 P.2d at 1177. We based our holding on our determination that:
[T]he purpose of the on-site preliminary hearing and the eventual full-blown hearing on revocation is to provide due process to the parolee, and to protect his liberty interest at the time. In this case, Howell did not have a liberty interest at the time of the proceedings against him for the revocation of his parole. He was at the time under arrest in Idaho by reason of a charge against him for assault. His transfer by the Idaho authorities to the Montana authorities while he was still under arrest did not deprive him of any liberty interest since his detention by the Idaho authorities was at all times lawful.
Howell, 222 Mont, at 139-40, 720 P.2d at 1176.
Hardy was charged with three offenses in Utah. He entered pleas of no contest, was convicted of each charge, and was sentenced accordingly. He was serving that sentence at the time the Montana revocation proceedings were initiated. At the time he was extradited to Montana, he was detained in the Salt Lake County Jail, pursuant to his one-year sentence for the Utah convictions. Nothing in the record suggests that he was or would have been released from jail in Utah had it not been for his extradition and transfer to Montana authorities. Based on our prior holding in Howell, therefore, Hardy’s right to due process was not infringed upon by his extradition to Montana and the commencement of the revocation proceedings in Montana. Accordingly, a preliminary hearing was not required.
We hold that the District Court was correct when it concluded that the failure to conduct a preliminary on-site hearing did not violate Hardy’s due process rights pursuant to the Fourteenth Amendment.
B. RIGHTS PURSUANT TO § 46-23-1103, MCA
Section 46-23-1103, MCA, provides as follows:
(1) Where supervision of a ... probationer is being administered pursuant to the interstate compact for the supervision of... probationers, the appropriate judicial or administrative authorities in this state shall notify the compact administrator of the sending state whenever in their view consideration should be given to retaking or reincarceration for a ... probation violation.
(2) Prior to the giving of any such notification, a hearing shall be held in accordance with this part within a reasonable time unless such hearing is waived by the ... probationer. Following termination of any such hearing, the appropriate officer or officers of this state shall, as soon as practicable, report to the sending state, furnish a copy of the hearing record, and make recommen dations regarding the disposition to be made of the ... probationer by the sending state ....
When the language of a statute is plain and unambiguous, the statute speaks for itself and no further interpretation is required. In re Estate of Langendorf (1993), 262 Mont. 123, 125, 863 P.2d 434, 436. The language of § 46-23-1103(2), MCA, plainly and unambiguously requires a preliminary on-site hearing. Despite the statute’s clear mandate, Hardy was denied a hearing, and his rights pursuant to the statute were, in fact, violated. The District Court, therefore, erred in 1992 when it did not require an on-site hearing prior to Hardy’s return to Montana. However, for reasons that follow, the District Court’s failure to require a preliminary on-site hearing was not prejudicial to Hardy’s rights, and therefore, did not constitute reversible error. See § 46-20-701(1), MCA. For that reason, the District Court’s refusal to grant post-conviction relief on the ground that Hardy was denied a preliminary on-site hearing in contravention of § 46-23-1103(2), MCA, must be affirmed. See Rule 61, M.R.Civ.P. .
Our holding today should not be interpreted as diminishing the importance of § 46-23-1103(2), MCA. In fact, most probation revocation proceedings initiated pursuant to §§ 46-23-1101 to -1106, MCA, the “Interstate Compact,” will require a preliminary on-site hearing. Preliminary on-site hearings are necessary to allow a probationer to contest the reasons for the revocation of his or her probation, and to develop a record when the evidence is fresh and when it is readily available.
For example, in Fisher v. Crist (1979), 182 Mont. 124, 594 P.2d 1140, we held that the failure to provide Fisher with a preliminary on-site hearing violated his rights pursuant to § 46-23-1103, MCA. Fisher was a Montana probationer under the supervision of the State of Washington. Montana authorities sought to revoke his probation based on: (1) his failure to report to his Washington probation officer; and (2) his failure to cooperate with the Seattle Indian Alcohol Program. We determined that Fisher should have received a preliminary on-site hearing because,
[h] e was told that he was charged with two violations, both of which he contested and should have been the subject of a probable cause hearing in Seattle where he could have had the opportunity to present witnesses and, perhaps, refute the allegations.
Fisher, 182 Mont, at 128, 594 P.2d at 1142.
In this case, however, a preliminary on-site hearing would have contributed nothing to a determination of whether Hardy had violated the terms of his probation. Unlike Fisher, Hardy’s probation violations (which were the basis for revocation) were not disputed, and probable cause for the initiation of revocation proceedings clearly existed. Essential to our holding is the fact that Hardy pled no contest to three offenses in Utah. Additionally, he wrote letters to the District Court which corroborated his guilt; and, during his probation revocation hearing, he admitted the allegations in the State’s petition. He had, as evidenced by his no contest pleas and admissions, indisputably violated the conditions of his probation, and a preliminary on-site hearing could not have led to any other finding.
Based on the facts of this case, the failure to provide Hardy with a preliminary on-site hearing did not prejudice his substantial rights. Accordingly, we hold that the District Court was correct when it concluded that Hardy is not entitled to post-conviction relief.
2. ASSURANCES FROM HIS PROBATION OFFICER
After his arrests in Utah, Hardy faced three felony charges. Ultimately, however, he pled no contest to three misdemeanor charges and avoided felony convictions. Hardy asserts that Dave Robbins, his Montana probation officer, assured him that his probation would not be revoked for misdemeanor convictions. He contends that, based on those assurances, his probation should not have been revoked.
Dave Robbins, however, contended that he did not make any unconditional assurances or guarantees; rather, he spoke generally about the State of Montana’s procedures. In his affidavit, Robbins stated:
I informed... Hardy that our general policy was that if a misdemeanor crime was committed and the supervising state agreed to continue supervision that no revocation proceeding is initiated ... [t]hat decisions regarding the filing of a Petition for Revocation are within the exclusive discretion of the county attorney and my responsibility is only to report infractions and make recommendations.
The District Court’s findings and conclusions are based on an acceptance of Robbins’ version of his conversations with Hardy and his Utah attorney.
Furthermore, Montana officials did not participate in the plea negotiations between Hardy and the State ofUtah. Finally, Hardy knowingly, voluntarily, and with the assistance of counsel entered into a no contest plea agreement which included the following language:
I know and understand the nature and the elements of the charges pending against me ... no one has made any promises or threats to induce me to plead guilty or no contest. My plea of guilty or no contest today is my own voluntary decision.
We conclude that the District Court’s findings regarding Robbins’ representations to Hardy were not clearly erroneous, and that the District Court’s conclusion that the State was not estopped from proceeding with revocation proceedings based on those representations, was correct.
3. THE DENIAL OF CREDIT FOR “STREET TIME”
When the District Court sentenced Hardy, it denied him credit for his “street time” (the two years he spent in Utah on probation). Hardy asserts that the District Court arbitrarily denied him credit for his “street time” when it failed to sufficiently set forth its reasons for the denial in the record. Specifically, he alleges that the District Court did not comply with § 46-18-201, MCA; which states in relevant part:
(4) If any restrictions or conditions imposed under subsection (l)(a) or (l)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order ....
The record, however, does not support Hardy’s contention. In its amended judgment, the District Court stated:
7) That the reasons for this sentence are the Defendant’s age, past record of numerous convictions, the Defendant’s inability to stay out of trouble when not incarcerated, and the serious nature of the crimes committed in Utah and the four (4) underlying Burglary charges on which the defendant was convicted in this Court.
The denial of credit for “street time” is an express provision of Hardy’s sentence. The reasons for the sentence, therefore, include the reasons for the denial of credit for “street time.”
The District Court adequately considered § 46-18-201, MCA, and sufficiently stated its reasons when it denied Hardy credit for his “street time.” Accordingly, we hold that the District Court was correct when it concluded that Hardy was not arbitrarily denied credit for his “street time.”
We hold that the District Court’s findings of fact were not clearly erroneous, and that its conclusions of law were correct. Accordingly, the judgment of the District Court is affirmed.
JUSTICES GRAY, NELSON, ERDMANN and HUNT concur.
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The defendant, Bill J. Henderson, was charged by information, filed in the District Court for the Fourth Judicial District in Missoula County, with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. Following a trial by jury, Henderson was convicted of the crime with which he was charged. He appeals the judgment of the District Court. We affirm the District Court.
The issue on appeal is whether the District Court abused its discretion when it admitted evidence of “other acts” pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
FACTUAL BACKGROUND
In 1984, Henderson lived in Missoula with S.B. and her children from a prior marriage, A.B., D.B., and B.B. In December 1984, the children moved to Anchorage, Alaska, to live with their maternal grandparents. At that time, A.B. told her grandmother, Do.B., that Henderson had sexually abused her. Do.B. immediately took A.B. to a counselor, who notified the police. During the police investigation, the children alleged that, on several occasions, Henderson engaged in sexual intercourse with A.B., and that he also made the children perform simulated sexual acts with one another.
In 1988, Henderson was arrested and charged with two offenses: sexual intercourse without consent, and accountability for incest. Following a trial by jury, Henderson was convicted of both charges. He subsequently fled the jurisdiction, and was not apprehended and sentenced until 1993.
Henderson then appealed to this Court, and in State v. Henderson (1994), 265 Mont. 454, 877 P.2d 1013, we reversed both of his convictions. We concluded that the simulated sexual acts between the children did not constitute incest. On that basis, we ordered the District Court to enter a directed verdict of acquittal on the accountability for incest charge. We also remanded the case for a new trial of the sexual intercourse without consent charge.
In November 1994, Henderson was retried in the District Court for the offense of sexual intercourse without consent. During the pretrial proceedings, the State filed a “Notice of Intent to Introduce Evidence of Other Acts,” in which it asserted the following:
[T]he State ... will seek to introduce ... evidence of other acts that are inseparably related to and conduct simultaneous with the crime charged, for the purpose of proving intent, identity, and common scheme.
The evidence of other acts expected to be presented by the State ... consists of:
1. During the same time period that [Henderson] was having sexual intercourse with [A.B.], he was also having her two young brothers lie on top of her and have intercourse with her ... In prior proceedings [Henderson] asserted mistaken identity as a defense, that it was some other man that sexually assaulted the victim. The boys’ testimony that [Henderson] also had them perform sexual acts on their sister is critical to confirm her testimony that [Henderson] is the perpetrator.
The District Court reviewed the requirements of the modified Just rule, and determined that the proffered evidence of “other acts” satisfied those requirements. Based on that determination, the District Court granted the State’s motion, and admitted the evidence of “other acts.”
At the trial, A.B. testified that, on several occasions, Henderson inserted his penis and fingers into her vagina. D.B. and B.B. testified with regard to the “other acts.” They both testified that Henderson made them perform sexual acts or simulated sexual acts with A.B., their sister.
Henderson testified on his own behalf, and denied all of the children’s allegations. On cross-examination, he stated his opinion that another man had sexually molested A.B.
At the conclusion of the trial, the jury found Henderson guilty as charged. The District Court entered judgment against Henderson, sentenced him to forty years in prison, and declared him ineligible for parole.
DISCUSSION
The issue on appeal is whether the District Court abused its discretion when it admitted evidence of “other acts” pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
When we review a district court’s evidentiary ruling, the standard of review is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. Furthermore, we recognize that a district court has “broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned.” State v. Romero (1993), 261 Mont. 221, 224, 861 R2d 929, 931.
In Montana, the admissibility of evidence of other crimes, wrongs, or acts is governed by Rule 404(b), M.R.Evid., which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To insure that evidence of “other acts” is not used as character evidence in contravention of Rule 404(b), M.R.Evid., we have delineated four substantive requirements that must be satisfied before evidence of “other acts” can be admitted. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. The four-part test promulgated in Matt modifies the rule originally established in Just. The modified Just rule requires that:
(1) The other crimes, wrongs or acts must be similar;
(2) The other crimes, wrongs or acts must not be remote in time;
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Matt, 249 Mont, at 142, 814 P.2d at 56.
Henderson asserts that the District Court erred when it admitted the evidence of his “other acts” of sexual abuse. Specifically, he contends that the evidence of “other acts” was improperly admitted because: (1) the simulated sexual acts are dissimilar to the offense with which he was charged; (2) the evidence is not relevant to a permissible purpose pursuant to which it could be admitted; and (3) the probative value of the evidence is substantially outweighed by the danger of unfair prejudice and confusion of the issues. He concedes, however, that the “other acts” are not remote in time.
Our analysis of Henderson’s appeal, therefore, will involve a review of the first, third, and fourth requirements of the modified Just rule.
SIMILARITY OF OTHER CRIMES, WRONGS, OR ACTS
Henderson asserts that the “other acts” (simulated sexual acts) are dissimilar to the act with which he was charged (sexual intercourse without consent). To support his claim, he points out that the simulated sexual acts did not involve “sexual intercourse” as defined by § 45-2-101(66), MCA, and that he did not actually participate in the simulated sexual acts. Therefore, he contends, the evidence of “other acts” does not satisfy the first requirement of the modified Just rule.
“We have consistently held that the [other] acts do not have to be identical to the charged conduct, only sufficiently similar.” State v. Weldy (1995), 273 Mont. 68, 74, 902 P.2d 1, 5 (citing State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 138). In this case, both the “other acts” and the charged offense involved the same victim, and were part of the same series of occurrences. Henderson was responsible for all of the acts; and they were performed solely for his sexual gratification. All of the acts involved Henderson’s sexual manipulation and abuse of the children.
Furthermore, we have stated that “[t]here is no rigid rule for determining when conduct is sufficiently similar, rather, the determination of similarity depends on whether that conduct has some relevance to prove an issue in dispute.” Weldy, 273 Mont. at 75, 902 P.2d at 5 (citing State v. Keys (1993), 258 Mont. 311, 316, 852 P.2d 621, 624). For reasons stated in the following section, Henderson’s other acts were relevant to prove an issue in dispute.
We conclude that the “other acts” are sufficiently similar to the charged offense. Accordingly, we hold that the evidence of “other acts” satisfied the first requirement of the modified Just rule.
PROPER PURPOSES FOR THE ADMISSION OF EVIDENCE OF “OTHER ACTS”
In its “Notice of Intent to Introduce Evidence of Other Acts,” the State asserted that the evidence of “other acts” was admissible to prove identity and common scheme. It is undisputed that, pursuant to Rule 404(b), M.R.Evid., these are permissible purposes. See e.g. State v. Kordonowy (1991), 251 Mont. 44, 49, 823 P.2d 854, 857 (identity); State v. Brooks (1993), 260 Mont. 79, 83, 857 P.2d 734, 737 (common scheme).
Henderson is correct when he recognizes that “merely reciting an allowable purpose is not sufficient if the evidence does not further that purpose or that purpose is not an issue in dispute.” Keys, 258 Mont, at 317, 852 P2d at 625. However, we do not find that to be the case here.
Henderson protested his innocence, and alleged that another man committed the acts of sexual abuse. When he asserted this defense, identity became a disputed issue in the case. The State, therefore, was properly allowed to introduce the evidence of “other acts” to prove that Henderson was, in fact, the perpetrator of the charged offense. We conclude that the evidence of “other acts” made it more likely that A.B. was not mistaken about Henderson’s identity when she accused him of the crime with which he was charged.
We also find merit in the State’s second asserted purpose — common plan or scheme. The evidence of “other acts” helped establish the existence of a common scheme in which Henderson sexually abused and manipulated the children for his own sexual gratification.
We conclude that the evidence of “other acts” was properly admitted to prove Henderson’s identity and common scheme. Accordingly, we hold that the evidence of “other acts” satisfied the third requirement of the modified Just rule.
THE PREJUDICIAL EFFECT DOES NOT SUBSTANTIALLY OUTWEIGH THE PROBATIVE VALUE
Henderson contends that the evidence of “other acts” should have been excluded because its prejudicial effect outweighed its probative value.
We have often recognized that probative evidence will frequently and inevitably be prejudicial to a party. State v. McKnight (1991), 250 Mont. 457, 465, 820 P.2d 1279, 1284; State v. Paulson (1991), 250 Mont. 32, 43, 817 P.2d 1137, 1144. In this case, the evidence of “other acts” was prejudicial, “but because it.satisfies the other requirements of the modified Just rule, such prejudice alone is not a sufficient reason to refuse admission.” Romero, 261 Mont, at 226, 861 P.2d at 932. See also McKnight, 250 Mont. at 465, 820 P.2d at 1284.
For the reasons stated previously in this opinion, we conclude that the evidence of Henderson’s “other acts” had strong probative value, and that the prejudicial effect of the evidence did not substantially outweigh its probative value. Accordingly, we hold that the evidence of “other acts” satisfied the fourth prong of the modified Just rule.
We conclude that the evidence of “other acts” satisfied all four requirements of the modified Just rule. Accordingly, we hold that the District Court did not abuse its discretion when it admitted evidence of Henderson’s “other acts” of sexual abuse.
The judgment of the District Court is affirmed.
JUSTICES HUNT, NELSON, GRAY and LEAPHART concur.
|
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
In this action, Lawrence Walker alleges that he was constructively discharged from employment with Montana Power Company (MPC) and that, in discharging him, MPC violated the federal Americans with Disabilities Act (ADA) and the Montana Human Rights Act. A jury in the Eighteenth Judicial District Court, Gallatin County, found for MPC. Walker appeals. We affirm.
The issues are:
1. Does substantial evidence support the jury’s finding that Walker was not a disabled person?
2. Does substantial evidence support the jury’s finding that Walker was not constructively discharged from his employment with MPC?
3. Did the District Court err in refusing to set aside the jury’s verdict?
Lawrence Walker began working as a lineman for MPC in 1969. In 1987, he was promoted to City Foreman of the Bozeman, Montana, division of MPC.
In 1991, seven subforemen working immediately under Walker complained to Walker’s supervisor about Walker’s supervisory practices over workers on the line crews. Walker’s supervisors investigated the complaints and concluded that, despite their efforts to coach him on promoting a team spirit with his subordinates, Walker was not communicating well with the crews he supervised. They realigned his job duties and responsibilities. Walker’s salary remained the same, but he had different supervisory responsibilities.
Walker’s co-workers continued to report problems with his job performance. Additionally, other problems arose with his work performance. He was involved in two accidents with company vehicles. On several occasions, his company vehicle was observed parked at the Montana State University (MSU) gym on company time. Finally, the local MPC budget for tree trimming, for which he was responsible, was overspent for 1991. Walker’s supervisor gave him written “reminders,” or warnings, concerning the vehicle accidents and use of the MSU gym while on company time.
On April 8, 1992, MPC demoted Walker to the title and pay of lineman. Beginning on that date, Walker took eleven months of medical and personal leave. From April 15, 1992, through May 11, 1992, he obtained medical leave due to abdominal pain and sleep disorder. MPC extended this leave through September 11,1992, after Walker submitted doctors’ reports of Headaches, weight loss, gastritis, back pain, vertigo, and, in August, a fall causing a rib fracture.
Walker continued on sick leave until October 23, 1992, without submitting further written documentation of reason. On that date, he presented his supervisor at MPC with a doctor’s written statement that he was totally disabled, for unspecified reasons, through the end of November.
Walker then requested and was granted a three-month period of unpaid personal leave from December 1, 1992, to March 1,1993. He did not return to work on March 1. His supervisor at MPC asked him by letter to return by March 3 or risk being considered to have voluntarily resigned. When Walker did not appear for work as scheduled on March 3, MPC terminated him from employment. MPC’s written reason for the termination was that Walker “[r] efused to work at a Lineman position.”
In his complaint filed in District Court, Walker initially set forth ten counts against MPC and two of his supervisors there. The District Court ordered the ten counts reduced to two: wrongful discharge and disability discrimination. The court dismissed the two supervisors as defendants, leaving MPC as the sole defendant.
A five-day jury trial ended in a defense verdict. The jury found that Walker was not a disabled person and had not been constructively discharged from employment with MPC. Walker appeals.
ISSUE 1
Does substantial evidence support the jury’s finding that Walker was not a disabled person?
It is up to the jury to determine the credibility of witnesses. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104, 112, 902 P.2d 520, 525. We will affirm the jury’s findings if substantial evidence supports them. Cechovic, 902 P.2d at 525.
The first question for the jury on the verdict form was, “Do you find from a preponderance of the evidence that Plaintiff, Lawrence Walker, is a disabled person within the definition furnished by the instructions in this matter?” The jury answered “no.”
The jury was instructed that “disability” means that a person has a mental impairment that substantially limits one or more of his major life activities, has a record of such impairment, or is regarded by the defendant as having such an impairment.
“Major life activities” was defined for the jury as “functions such as caring for one’s self, performing manual tasks, walking, seeing; hearing, speaking, breathing, learning, and working.” The jury was further instructed that an individual “has a record of an impairment” if “he has a history of a mental impairment, even if misclassified, that substantially limits one or more major life activities.” The jury was instructed that an individual is “regarded as having a disability” if “his mental impairment does not limit a major life activity, but his employer, through its agents and employees, treats him as being so limited.”
Walker claims he suffered from a mental disability brought about by work-related stress. He maintains that he consequently had an acknowledged impairment which substantially limited him in the major life activity of work. He also maintains that he had a documented record of such impairment and that he was regarded as having such an impairment.
While Walker has provided citations to cases which generally outline the law of disability and constructive discharge, neither of the cases upon which he places primary reliance is particularly helpful to his position in the present case. In Martinell v. Montana Power Co. (1994), 268 Mont. 292, 886 P.2d 421, this Court held that work is a major life activity under the Montana Human Rights Act. As noted above, the jury was properly instructed in the present case that work is a major life activity.
The other case upon which Walker places primary reliance is an unpublished opinion of the United States District Court of Montana, Richard Durham v. Montana Power Company (December 8, 1994), Cause No. CV-93-130. In that case, a jury found that Durham was a disabled person and a qualified individual with a disability under the ADA. The jury further found that MPC failed to provide Durham with reasonable accommodation for his disability. The verdict was upheld under the substantial evidence standard.
In the present case, Dr. John Robbins, an internist, testified that he began treating Walker in April 1992. He believed Walker suffered from stress primarily caused by his working conditions and that Walker’s symptoms would not be relieved unless the work issues were resolved.
Dr. Robbins further testified that in July 1992, he released Walker to return to work. Dr. Robbins testified that he did not diagnose Walker with major or clinical depression, but with mild depression associated with an anxiety state. He testified that he did not advise Walker to seek counseling from a psychologist or psychiatrist. Walker’s last documented visit to Dr. Robbins before his discharge was in August 1992, six months before his discharge, for dizziness resulting from a fall.
Walker contends MPC was aware of medical reports from his treating physicians indicating that he was suffering from job-induced stress and consequent weight loss, symptomatic of depression. He cites the Equal Employment Opportunity Commission’s Technical Assistance Manual, which provides that stress and depression may be impairments within the meaning of “disability” under the ADA.
29 C.F.R. § 1630.2(j)(3)(i) provides:
With respect to the major life activity of working-
(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
In Holihan v. Lucky Stores, Inc. (9th Cir. 1996), 87 F.3d 362, depression and anxiety prevented plaintiff Holihan from working as a store manager, but did not prevent him from working in real estate and sign-making business activities. Citing 29 C.F.R. § 1630.2(j)(3), the court ruled that Holihan’s depression and anxiety did not render him disabled within the meaning of the ADA, because the depression and anxiety did not prevent him from working at a broad range of jobs, but only at a particular job. Holihan, 87 F.3d at 366.
Similarly, here, Walker has not contended that his depression and stress prevented him from working as a supervisor at MPC or in other employment, but only at a lineman position. Additionally, he testified that he could have physically and mentally performed the duties of a lineman after his demotion, if MPC had “removed the violence” from the workplace.
The record of Walker’s depression and stress is limited, at best. During his eleven-month absence from work at the end of his employment with MPC, Walker gave various reasons to justify his medical leave. The only evidence that he received treatment by a psychologist or psychiatrist for his claimed mental disability was that he had six sessions with a clinical psychologist in April and May of 1994.
We turn next to Walker’s claim that he was regarded as having a disability. Walker cites the evidence that his supervisors allowed him to take extended leave from work and that they suggested he seek counseling. He also cites notes taken by one of his supervisors at a meeting with him, in which the supervisor wrote that his behavior was “paranoid and almost schizo.” Walker further cites MPC’s offer to discuss long-term disability leave with him as evidence that he was perceived as having a disability.
Both of Walker’s supervisors testified that they did not believe he had a record of, nor did they perceive that he had, a mental disability. MPC did not treat Walker as if he were limited in all fields of employment; only in the job of lineman supervisor.
We conclude that the jury properly could have determined that the credible evidence weighed in favor of a finding that Walker did not have a mental impairment which rose to the level of a disability and that he did not have a record of such an impairment. Similarly, we conclude that substantial credible evidence exists in the record that Walker was not regarded as having a disability by MPC. We hold that substantial evidence supports the jury’s finding that Walker was not disabled.
ISSUE 2
Does substantial evidence support the jury’s finding that Walker was not constructively discharged from his employment with MPC?
As part of its verdict, the jury answered in the negative the following question: “Do you find from a preponderance of the evidence that Plaintiff, Lawrence Walker, was constructively discharged from his employment with Montana Power Company?” The jury was instructed that, to prove this claim, Walker must establish that he voluntarily terminated his employment with MPC because of a situation that was created by an act or omission of MPC and that such act or omission created a situation that an objective, reasonable person would find so intolerable that voluntary termination was the only reasonable alternative.
Walker argues that MPC’s failure to accommodate him by removing him from a hostile work environment constitutes a constructive discharge. In this regard, he again cites the Martinell case. Martinell had asked to be placed on day shifts instead of rotating shifts because of her health problems caused by pelvic inflammatory disease. This Court held that failure to accommodate Martinell by changing her work shifts was tantamount to a constructive discharge. Martinell, 886 P.2d at 436. In the present case, the jury was instructed on the law of constructive discharge without objection by Walker. Beyond general statements of the law of constructive discharge and disability, we are not persuaded that Martinell controls in this case.
Walker complained of “violence in the workplace,” which he maintained caused him a mental disability. In that regard, he testified about an incident of sexual harassment against a female MPC employee which occurred in the early 1980’s. He also described two other incidents to the jury, one of which involved an individual employed by a company which contracted with MPC, and the other involving an employee who was terminated from employment with MPC following the incident.
Walker contends that had he taken the demotion to a lineman position, he would have been under the supervision of the same individuals whose performance dissatisfied him while he was a supervisor. He appears to be arguing that his April 1992 demotion to lineman was a constructive discharge. He attempted to present a case at trial that he was a conscientious MPC employee who was impopular with other employees because he tried to make them live up to his work standards and ethics.
Walker’s supervisors testified that they informed him they had placements available for him other than under the men he formerly supervised, in the meter shop or on a substation crew, where he would not be working with the individuals about whom he had complained. Moreover, “[t]he ADA does not require an employer to accommodate an employee who cannot get to work.” Kotlowski v. Eastman Kodak Co. (W.D.N.Y. 1996), 922 F.Supp. 790, 798. Walker was not discharged until a full eleven months after his demotion, during which eleven months he had not reported for work.
The record contains ample evidence that Walker’s discharge from MPC’s employ was for good cause — i.e., his failure to report for work after the expiration of his eleven month long series of medical and personal leave. We conclude that the record contains substantial evidence to support the jury’s finding that Walker was not constructively discharged.
ISSUE 3
Did the District Court err in refusing to set aside the jury’s verdict?
This Court will not overturn a decision to grant or deny a motion for a new trial absent a showing of manifest abuse of discretion. Montana Bank of Red Lodge, N.A. v. Lightfield (1989), 237 Mont. 41, 49, 771 P.2d 571, 577.
Walker maintains that the jury’s brief deliberation (forty minutes), when taken in conjunction with the relative complexity of the legal issues and the weight of the evidence in this case, supports his position that the court abused its discretion in refusing to set aside the verdict.
As a general rule, shortness of time taken by a jury in reaching its verdict has no effect upon the validity of the verdict. Lappe v. Blocker (Iowa 1974), 220 N.W.2d 570, 574. Only when the brief jury deliberation is coupled with a verdict that is contrary to the great weight of the evidence should the trial court set aside the verdict. Kearns v. Keystone Shipping Co. (1st Cir. 1988), 863 F.2d 177, 182.
The relative complexity of the legal issues in this case had been narrowed and clarified by the court and counsel by the time the court gave its instructions to the jury. The verdict form contained just seven questions, not all of which the jury had to answer if it determined initially that Walker was not a disabled person within the meaning of the instructions. The second question the jury had to consider was whether Walker was constructively discharged, which issue, like whether he was disabled, we have discussed above. Based on the streamlining of the issues and upon our consideration of the issues which remained, we conclude that the jury’s verdict is not contrary to the weight of the evidence and that the court did not abuse its discretion in refusing to set aside the verdict.
Walker also lists as an issue whether “the trial court abused its discretion in excluding certain highly relevant testimony bearing on the motivation and pattern of hostile conduct directed against Walker by his antagonists.” However, Walker did not farther explain or argue this issue in either of his briefs to this Court. Therefore, we do not address it.
Affirmed.
JUSTICES HUNT, TRIEWEILER, ERDMANN and LEAPHART concur.
|
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
Bryan Keith Allen (Allen) appeals from the judgment and sentence of the Third Judicial District Court, Deer Lodge County, jury verdict convicting him of assault, aggravated burglary, and aggravated assault. We affirm.
We restate the following issues raised by Allen:
(1) Did the District Court abuse its discretion in permitting the State to amend its information after the State’s case-in-chief?
(2) Did the District Court err in denying Allen’s motion for a directed verdict?
(3) Did the District Court abuse its discretion by not admitting testimony of the victim’s character?
(4) Did the District Court increase Allen’s punishment because he exercised his constitutional right to a trial?
BACKGROUND
Allen and Sandra Evans (Evans) had been involved in a turbulent relationship for several years. One evening in April, 1994, Allen and Evans began arguing at a local tavern. After this argument, Allen went to Evans’ home and requested permission to enter. After Allen entered Evans’ home, they began arguing. The argument became violent and Allen started head butting Evans in the face and banging her head against the wall. Allen then twisted her neck and told her that he “ought to just beat her to death.” Allen proceeded to throw Evans into the bathtub and threatened to drown her. From this assault, Evans suffered a broken nose and numerous cuts and bumps on her face.
While Allen was beating Evans, Evans’ son, D.E., was awakened. D.E. telephoned his grandparents. After Evans was able to escape from the house, Allen approached D.E. and asked him where Evans had gone. Allen then put D.E. behind a door and began hitting D.E. with the door. When D.E.’s grandparents arrived at Evans’ home, Allen left. The police were contacted and eventually apprehended Allen.
In May of1994, the State of Montana charged Allen by information with assault (against D.E.) and aggravated assault (against Evans). In June of 1994, the State amended the information by adding the charges of aggravated burglary and attempted deliberate homicide (of Evans). In the information, the State alleged that Allen was guilty of aggravated burglary because he remained in Evans’ home and attacked both Evans and D.E. Allen pled not guilty and the trial was held in December of 1994.
At trial, after the close of the State’s case-in-chief, Allen moved for a directed verdict on the charges of aggravated burglary and attempted deliberate homicide. Allen contended that the State failed to prove that he committed the additional offense necessary to prove an aggravated burglary. In response to the motion, the State moved to amend the information and Allen objected. The District Court granted the motion to amend the information and denied Allen’s motion for a directed verdict. The jury found Allen guilty of aggravated burglary, aggravated assault (against Evans), and assault (against D.E.). Following the jury’s verdict, Allen brought this appeal requesting relief in the form of either a reversal, a new trial or a re-sentencing.
DISCUSSION
(1) Did the District Court abuse its discretion when it allowed the State to amend its information after its case-in-chief?
The standard of review for a district court’s decision to permit the State to amend an information is abuse of discretion. State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 975. An information is a written accusation of criminal conduct prepared by a prosecutor in the name of the State. The information must reasonably apprise the accused of the charges against him, so that he may have the opportunity to prepare and present his defense. Matson, 736 P.2d at 975.
Allen was originally charged with aggravated assault (against Evans), and assault (against D.E.). Prior to trial, the State charged Allen by amended information with aggravated burglary, aggravated assault (against Evans), attempted deliberate homicide (of Evans), and assault (against D.E.). At trial, Allen made a motion for a directed verdict. Allen argued that in order to prove the aggravated burglary, the State had to prove that Allen committed all three elements of the charge: (1) remaining unlawfully in an occupied structure; (2) that he was there with the purpose to commit an offense therein; and (3) he inflicted bodily injury on another. See § 45-6-204, MCA. At the time Allen objected to the information, it stated that Allen was guilty of aggravated burglary because he remained in Evans’ home and assaulted both Evans and D.E. The information did not refer to a separate offense as grounds for an aggravated burglary charge.
In order to prove aggravated burglary, the State had to prove that “in the course of committing the offense ... he purposely, knowingly, or negligently inflicts or attempts to inflict bodily injury upon anyone.” Section 45-6-204(2)(b), MCA. Allen contends that, assuming the State proved that he assaulted Evans and D.E. as part of the burglary, the State failed to establish aggravated burglary by proving that he also inflicted bodily injury on another; that is, someone other than Evans or D.E. Even assuming, without so holding, that the charge of aggravated burglary requires proof of a separate charge of infliction of bodily injury upon an additional party, that argument was satisfied by both the amendment to the information and the proof adduced at trial.
At the beginning of Allen’s trial, the June 15, 1994, amended information stated:
On or about April 29, 1994, at approximately 02:30 a.m. in Opportunity, Anaconda, Montana, BRYAN KEITH ALLEN knowingly entered or remained unlawfully in the occupied structure at 17 1/2 Leslie St., Opportunity, [A]naconda, Montana, with the purpose to commit an offense therein and in the course of committing the offense therein purposely, knowingly or negligently inflicted bodily injury upon SANDEALEE EVANS andD.E., aminor, thereby committing the crime of AGGRAVATED BURGLARY, a felony, in violation of § 45-6-204(2)(b) MCA.
After its case-in-chief, the State again amended the above information. In its amendment, the State made the assault against Evans the basis for the aggravated assault and burglary, while the assault against D.E. was the additional charge forming the basis of the charge of aggravated burglary. Allen argues that these amendments to the information were changes of substance and not form in two respects. First, Allen maintains that the amended information changed the nature of the charge. Second, Allen argues that the amended information lowered the State’s burden of proof.
In support of these contentions, Allen cites to State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367. In Sor-Lokken, this Court held that an amendment is one of form and not substance when, “the same crimes are charged, the elements of the crimes remain the same, the required proof remains the same, and the defendant is informed of the charges against him.” Sor-Lokken, 805 P.2d at 1371 (citing Matson, 736 P.2d at 975). This requirement may be satisfied if the charges sufficiently express the language of the statute which defines the offense. Matson, 736 P.2d at 975 (citing State v. Hankins (1984), 209 Mont. 365, 372, 680 P.2d 958, 962).
In addition to the requirements set out in Sor-Lokken, § 46-11-205 MCA, also restricts the State’s ability to make substantive changes to an information. Specifically, § 46-11-205, MCA, states:
46-11-205. Amending information as to substance or form. (1) The court may allow an information to be amended in matters of substance at any time, but not less than 5 days before trial, provided that a motion is filed in a timely manner, states the nature of the proposed amendment, and is accompanied by an affidavit stating facts that show the existence of probable cause to support the charge as amended. A copy of the proposed amended information must be included with the motion to amend the information.
(2) If the court grants leave to amend the information, the defendant must be arraigned on the amended information without unreasonable delay and must be given a reasonable period of time to prepare for trial on the amended information.
(3) The court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.
The State’s amendment to Allen’s information did not relieve the State of the burden of proving any of the elements of aggravated burglary. Rather, it allowed the State to satisfy the aggravating element by reference to proof that was already offered in the context of the separate charge of assault on D.E. Applying both the test set forth in Sor-Lokken, and the above statute to the record in this case, we conclude that the State’s amendments to the information were changes in form and not substance. Although these changes were made after the State’s case-in-chief, Allen was charged with the same crime, the elements remained the same, the proof required remained the same, and Allen was fully informed of the charges against him. Allen was not prejudiced by these amendments. Because the changes to the information were merely of form and not substance, we affirm the District Court’s decision permitting the State to amend its information.
(2) Did the District Court err in denying Allen’s motion for a directed verdict?
A district court’s decision to grant or not to grant a directed verdict will not be disturbed absent an abuse of discretion. A decision to grant an acquittal is appropriate only where there is no evidence to support a guilty verdict. State v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141; State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547.
In the instant case, the District Court was justified in finding that there was enough evidence for the jury to consider the charges against Allen. Allen argued that the aggravated burglary statute requires both the purpose to commit an offense, and the infliction of bodily injury. See Section 45-6-204(2), MCA. Allen maintains that since the State was relying on his assault of both Evans and D.E. as the requisite offense for the simple burglary, it needed to prove infliction of bodily injury upon someone other than Evans or D.E. in order satisfy its burden of aggravated burglary. Section 45-6-204(2), MCA. In other words, Allen argues that since his assaults of Evans and D.E. were the basis for the burglary charge, they could not also support the aggravated burglary charge. Without ruling on the validity of Allen’s analysis of the requirements of aggravated burglary under these facts, we note that the record indicates that the State presented the jury with testimony from Evans, and D.E., both of whom explained that Allen remained in Evans’ home and assaulted D.E. after he assaulted Evans. From the record, it is clear that the jury was presented with sufficient evidence to find each of the elements of each crime. Therefore, we find that there was sufficient evidence to support a jury conviction and affirm the District Court’s decision not to grant Allen a directed verdict.
(3) Did the District Cotut abuse its discretion by not admitting testimony of the victim’s character?
The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. Gollehon, 864 P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380.
Allen argues that the District Court erred when it sustained the State’s objection to his inquiry of Evans regarding a previous physical altercation between Allen and Evans. During his cross-examination of Evans, defense counsel inquired about an altercation between Allen and Evans in which Evans supposedly lied about Allen having injured her. In that 1991 incident, Evans maintained that Allen had twisted her arm and snapped it. Allen maintained that none of this was true. When defense counsel questioned Evans about this incident, the State objected, stating that defense counsel was going beyond the scope of direct examination. This objection was sustained. Furthermore, Allen did not contend that under Rule 608(b), M.R.Evid., he should be allowed to pursue this line of questioning. Rather, Allen presents an argument based on Rule 608(b), M.R.Evid., for the first time on appeal to this Court.
In order to have properly preserved this issue for appeal, Allen should have offered the testimony as character evidence under Rule 608(b), M.R.Evid., thereby affording the trial court an opportunity to evaluate the questions in the context of that Rule. This he did not do. He did not raise the issue of admissibility under Rule 608 with the District Court. Rather, he simply acquiesced in the court’s ruling that the questioning exceeded the scope of the direct. Because Allen failed to argue to the District Court that he should be allowed to question Evans as to credibility pursuant to. Rule 608, M.R.Evid., we can not now address the merits of that argument raised for the first time on appeal. Marsh v. Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093; Buhr v. Flathead County (1994), 268 Mont. 223, 237, 886 P.2d 381, 389. Therefore, we hold that the District Court’s decision to restrict cross-examination which exceeded the scope of the direct examination was not an abuse of discretion.
(4) Did the District Court increase Allen’s punishment because he exercised his constitutional right to a trial?
District courts have broad discretion in sentencing defendants convicted of criminal offenses. State v. Smith (1996), [276 Mont. 434], 916 P.2d 773, 780 (citing State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231). This Court will generally review a criminal sentence only for legality — that is, to determine whether it is within the statutory parameters established by the legislature; where a sentence is within those parameters, we generally will affirm it. Smith, 916 P.2d at 780; See also State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089,1091. However, there are exceptions to these general rules.
Punishing a person for exercising a constitutional right is a basic due process violation. State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225. Pointing to the disparity between the pre-trial plea offer and the ultimate sentence imposed, Allen contends that his sentence may have been in retaliation for rejecting the plea offer and going to trial. Relying on Baldwin, Allen maintains that the disparity between the sentence he received and the pre-trial plea offer was a result of the District Court’s punishing him for exercising his constitutionally protected right to a trial. As this Court explained in Baldwin, 629P.2dat225,“[a] policy of leniency following a plea is proper, but its converse, ‘extra’ severity following trial is not.” However, a mere disparity between the sentence offered during plea bargaining and that ultimately imposed is not, of itself, improper. Baldwin, 629 P.2d at 225; In re Lewallen (Calif. 1979), 590 P.2d 383, 386.
This case significantly differs from Baldwin where the sentencing court wrote defense counsel a letter which explained,
[u]pon a plea of guilty the minimum sentence that I would give Mr. Baldwin would be a 5 year sentence with all but 45 days suspended, said 45 days to be served in the State Prison at Deer Lodge, Powell County, Montana. ... I feel that this is as lenient as I can possibly be in the case, and that if he does not want to enter a plea on these conditions why should we prepare to go to trial on the merits of the case.
Baldwin, 629 P.2d at 224. Unlike Baldwin, where the district court participated in the plea bargaining process, Allen has presented no evidence that the District Court in this case was involved in pre-trial plea negotiations. Although there is a disparity between the sentence proposed by the State and the sentence Allen ultimately received, Allen has failed to show that this disparity is the result of the District Court’s punishing him for going to trial. Because Allen has failed to substantiate his claim that he was punished for exercising his right to a trial, we affirm the District Court’s sentence.
Accordingly, we affirm the District Court.
CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, TRIEWEILER and GRAY concur.
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JUSTICE ERDMANN
delivered the Opinion of the Court.
Samuel J. Grenz appeals from an order of the Workers’ Compensation Court which affirmed the Montana Department of Labor and Industry’s decision that Grenz’s occupational disease claim was barred by the statute of limitations as set forth in § 39-72-403, MCA (1985). We affirm.
The issue on appeal is whether the Workers’ Compensation Court erred in concluding that Grenz’s occupational disease claim, filed in 1992, was barred by the two-year statute of limitations contained in § 39-72-403, MCA (1985).
FACTS
On August 22, 1984, Grenz injured his right elbow while working on a steel railing for his employer, American Stud Company. Within a week of his injury Grenz filed a claim for workers’ compensation benefits and sought treatment from Dr. Ken McFadden. The insurer, Fire & Casualty of Connecticut (F&C), accepted liability for the right elbow injury and paid compensation and medical benefits.
On December 31, 1984, and again on January 29, 1985, Grenz consulted his treating physician, Dr. Ronald A. Miller, concerning his discomfort in both elbows, wrists, hands, and his cervical, thoracic, and lumbar spine. Dr. Miller diagnosed Grenz with degenerative arthritis of his fingers, wrists, and shoulders, and recurrent bursitis and epicondylitis of his elbows. On November 18, 1985, Dr. Miller provided Grenz with a note for his employer which recommended that Grenz refrain from lifting or other physical activity. Grenz did not work after November 18, 1985.
Grenz’s 1984 injury “began a seemingly endless stream of litigation that has resulted in multiple appeals to this Court and innumerable proceedings in the Workers’ Compensation Court.” Grenz v. Fire and Casualty of Connecticut (1993), 260 Mont. 60, 61, 857 P.2d 730, 731 0Grenz III). We need not, however, address each of Grenz’s prior claims for the purposes of this opinion.
In 1991 this Court determined that Grenz’s psychological problems and his degenerative condition were not causally related to his 1984 elbow injury. Grenz v. Fire and Casualty of Connecticut (1991), 250 Mont. 373, 820 P.2d 742 (Grenz I)- Following the final adjudication of his right elbow injury claim in 1991, Grenz then filed two claims with respect to his degenerative arthritis. In 1993 this Court determined that his first claim alleging micro-trauma was time barred. Grenz III, 857 P.2d at 734.
We now address Grenz’s second claim. This claim is an Occupational Disease (OD) claim in which Grenz is seeking benefits for the degenerative arthritis in his hands, wrists, shoulders, elbows, ankles, and knees. He also claims certain psychological and emotional disorders are causally related to his degenerative joint disease. The Department initially took no action regarding this claim as Grenz was actively litigating his micro-trauma claim. On August 20, 1993, three days after this Court issued Grenz III, F&C filed a motion with the Department seeking dismissal of the OD claim as being similarly time barred by the statute of limitations.
An evidentiary hearing was held on September 19-20, 1994. The hearing examiner entered his findings of fact and conclusions of law on December 30, 1994. He found that at least as early as 1985 Grenz knew he was suffering from degenerative arthritis and that he felt the cause of his problems was his employment. The examiner concluded Grenz knew or should have known at least as early as 1988, if not earlier, that his condition possibly met the criteria for an OD claim, and therefore dismissed the claim which was filed in 1992 as being untimely.
Grenz appealed to the Workers’ Compensation Court which affirmed the decision of the hearing examiner. Grenz now appeals that court’s order issued on August 24,1995, affirming the dismissal of his claim as being time barred.
ISSUE
Did the Workers’ Compensation Court err in concluding that Grenz’s occupational disease claim, filed in 1992, was barred by the two-year statute oflimitations contained in § 39-72-403, MCA(1985)?
Grenz appealed the final determination of his Occupational Disease claim by the Department’s hearing examiner to the Workers’ Compensation Court. The Workers’ Compensation Court may overrule the Department of Labor hearing examiner’s determination if that determination was:
(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 rehable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Section 39-72-612(2), MCA (1979). We in turn review the Workers’ Compensation Court’s decision to determine if it properly complied with the requirements of § 39-72-612(2), MCA (1979). In order to review the Workers’ Compensation Court’s decision to determine if it complied with § 39-72-612(2), MCA (1979), this Court must review the whole record to determine whether the findings of fact are clearly erroneous and supported by substantial evidence. The findings of fact in this case were made by the Department of Labor’s hearing examiner. The Workers’ Compensation Court held that the Department’s determination was supported by substantial evidence.
The Montana Occupational Disease Act (MODA) statutes in effect on an employee’s last day of work govern the resolution of an occupational disease claim. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 205, 900 P.2d 314, 316. Grenz’s last day of employment was November 18, 1985. The applicable statute oflimitations for his claim is therefore § 39-72-403, MCA (1985).
This statute, amended as of October 1, 1985, provided:
(1) When a claimant seeks benefits under this chapter, his claims for benefits must be presented in writing to the employer, the employer’s insurer, or the division within 2 years from the date the claimant knew or should have known that his total disability condition resulted from an occupational disease. ...
(2) The division may, upon a reasonable showing by the claimant or a decedent’s beneficiaries that the claimant or the beneficiaries could not have known that the claimant’s condition or the employee’s death was related to an occupational disease, waive the claim time requirement up to an additional 2 years.
Section 39-72-403, MCA (1985).
Grenz maintains that prior to mid-1990, he was not aware that his degenerative arthritis was caused by his occupation and believed it to be attributable to his right elbow injury. The hearing examiner, however, found that Grenz knew or should have known prior to at least 1988 that his total disability was caused by an occupational disease.
The hearing examiner’s finding that Grenz knew or should have known that his disability was caused by an occupational disease is supported by substantial evidence in the record, including Grenz’s own testimony. Grenz testified that he knew in 1985 and 1986 that Dr. Miller felt that the type of work he was doing was aggravating his arthritis. In a brief filed with this Court on November 11,1991, Grenz insisted that there was “absolutely NO evidence” that he saw Dr. Miller because of his elbow injury. Thus, the hearing examiner found that if he did not see Dr. Miller on account of his elbow injury but on account of his more generalized joint complaints it was unreasonable for him to assume that his degenerative arthritis was attributable to his elbow injury. The hearing examiner also noted that Grenz knew that the medical panel which examined him in 1988 had limited its examination to his elbow and lower back and had not considered his other joint complaints.
Our review is limited to assessing whether substantial credible evidence exists to support the hearing examiner’s findings, not whether the evidence supports a contrary finding. McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 68, 813 P.2d 451, 454. We conclude that there is substantial evidence to support the finding of the Department’s hearing examiner that Grenz knew or should have known prior to 1988 that his total disability was caused by an occupational disease. We further determine that the Workers’ Compensation Court correctly applied the proper standard as set forth in § 39-72-612(2), MCA (1979).
Grenz argues for the first time on appeal that he is entitled to an additional two years in which to present his claim, pursuant to § 39-72-403(2), MCA (1985). Grenz also raises the following issues for the first time on appeal: (1) that the statute of limitations should be tolled as a result of the insurance company’s payments of benefits; (2) F&C is equitably estopped; and (3) the statute of limitations violated his due process and equal protection rights. “We will not address an issue presented for the first time on appeal.” Rasmussen v. Lee (1996), [276 Mont. 84], 916 P.2d 98, 100 (citing Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115-16); Grenz I, 820 P.2d at 746. We therefore will not address these issues raised for the first time on appeal.
We therefore hold that the Workers’ Compensation Court was correct in its conclusion that Grenz’s occupational disease claim filed in 1992 is barred by the statute of limitations as set forth in § 39-72-403, MCA (1985).
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and LEAPHART concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In this action, plaintiff seeks to recover commissions alleged to be due upon the sale of three automobiles, under the following written agreement:
“This agreement made and entered into this 5th day of May, 1913, by and between H. B. Blair, of Livingston, and B, G. Brockway, of Billings, Montana, as follows: The said first party agrees to furnish Reo automobiles for the said second party to sell in Yellowstone and Carbon counties in the following manner: The said second party to get fifteen per cent (15) of sales. Said first party to furnish all automobiles on deposit of one hundred dollars ($100.00) each, at time of order. All orders and specifications to be in Lansing ten days prior to shipment.
“H. B. Blair,
“First Party,
“By R. H. Bishir,
“B. G. Brockway,
“Second Party.”
The circumstances under which a ear was sold to Allard, one of the purchasers, will illustrate the three sales involved in this controversy. Cettergren was Brockway’s agent at Laurel, and Bishir and Green were Blair’s agents who worked to some extent in that vicinity. Cettergren testified that he made several trips to see Allard concerning the sale to him of a Reo car; that he demonstrated the car to Allard several times; that he took Bishir to Allard, and Bishir demonstrated the car to him; that afterward and on the day Allard expressed his intention to purchase a car he introduced Green to Allard; that a sale was then completed by Green, who delivered the car to Allard. On cross-examination, the witness said: “I know that Mr. Green would not have sold the car if it hadn’t been for me, and I think I would have sold the car if it hadn’t been for Green. Mr. Al-lard said he was ready to buy a car before Mr. Green spoke to him.” From the fact that a general verdict was returned in favor of plaintiff, we must assume that the jury accepted this testimony as true, so far at least as it tends to disclose the part which Broekway’s agent played in effecting the sale. It is apparent that the efforts of Cettergren alone did not produce the sale, neither did the unaided efforts of Blair’s agent effect it. The sale resulted from their combined efforts.
Upon the theory that the agreement does not in terms expressly cover the case, the court permitted evidence to be intro duced to the effect that it was understood by both parties, at the time the contract was executed, that Brockway was not expected to go out and complete the sales by his own unaided efforts; that if it was necessary for him to have the assistance of Blair’s agents in the community to close or complete a sale, such assistance would be furnished as a part of Blair’s obligation under the contract; and that this understanding was carried into effect in making the sales which furnish the foundation for this controversy. The admission of this evidence is specified as error — as violating the provisions of sections 5018 and 7873, Revised Codes, which, so far as applicable here, are to the effect that, when the terms of an agreement have been reduced to writing by the parties, no evidence is admissible of the terms of the agreement other than the contents of the writing itself. “The full substance of the evidence admitted” is not quoted as required by Rule X, subdivision “b,” of the rules of this court (123 Pac. xii), and the attention of counsel is directed to the fact that these rules are to be honored by their observance — not by their breach.
It is the contention of appellant that, under the terms of the agreement, Brockway was not entitled to any commission unless and until he made a sale complete in itself or made a contract of sale under which Blair could maintain an action for damages in ease the prospective purchaser failed or refused to take the car. In other words, it is appellant’s contention that the terms of the contract are explicit; that they interpret themselves and leave no room for the application of rules of construction or the introduction of evidence explanatory of the circumstances under which the agreement was made.
If the sale had been made by the unaided efforts of Brock-way or his agent, there could not be any question of plaintiff’s right to the commission. If the sale had resulted from the unaided efforts of Blair’s agents, Brockway could not lay claim to the commission, for the contract did not give him exclusive territory. But what are the rights of the parties under the contract as they apply, or can be made to apply, to the Allard sale? Sections 5018 and 7873, above, refer to contracts complete in themselves and free from ambiguity and uncertainty. Sections 5025, 5030, 5036 and 5038 provide rules of interpretation where the terms of the agreement fail to explain themselves fully or are ambiguous or uncertain. If the language of the agreement is clear and expresses the intention of the parties explicitly, it needs no interpretation (Ming v. Pratt, 22 Mont. 262, 56 Pac. 279); but, if it is not clear and free from ambiguity, then the attendant circumstances under which the contract was made may be examined to furnish a key to the intention of the parties (Alywin v. Morley, 41 Mont. 191, 108 Pac. 778; Quirk v. Rich, 40 Mont. 552, 107 Pac. 821),. We are not prepared to agree with counsel for appellant that the meaning of the language of this agreement is so far free- from doubt that it can be said as a matter of law that it furnishes its own interpretation. That the writing does not contain all the terms of the agreement is apparent at once. Neither the price at which the cars were to be sold nor the terms of sale are specified. Certainly, it was not intended that Broekway might fix any price upon the cars or any terms which would suit him or better enable him to sell them. It is uncertain, too, whether Brockway was to order cars from Blair or directly from the factory. Indeed, the writing appears to be nothing more than a brief memorandum of certain points of their agreement, and the court ruled correctly in admitting the evidence.
Upon the facts found, Brockway was entitled to his commission upon these sales, for the parties had agreed that such assistance as was given him was due to him under the contract.
The second assignment is that the court erred “in giving defendant’s instruction No. 2yz.” The instruction is not set out as required by Rule X, subdivision “b.” The defendant below is the appellant here, and we would be justified in refusing to consider the assignment because of this violation of the rule, or we might content ourselves with saying that a party will not be heard to complain of the action of the court in giving an instruction which he requests; but waiving the failure to observe the rule, and assuming, from the argument presented, that fault is found with plaintiff’s offered instruction No. 1, given as instruction No. 4, and that the reference to defendant’s instruction No. 2% is merely an error, it is to be observed that, if instruction No. 4 stood alone and was the sole criterion for determining the circumstances under which plaintiff would be entitled to commission upon a sale in the making of which he received assistance from defendant, then there would be ground for appellant’s complaint. The phrase, “was instrumental in making any sale,” conveys practically no meaning.
It is too indefinite to be of service to the jury in applying the evidence; but one particular paragraph of the entire charge cannot be segregated from the rest. Every paragraph is to be read with the context, and all the instructions considered together as constituting the single charge of the court. (Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45; Michalsky v. Centennial Brewing Co., 48 Mont. 1, 134 Pac. 307.)
At the instance of defendant, the court gave the following instruction: “You are instructed that, in order for the plaintiff to recover by reason of any sale being made by him, you must find that the plaintiff was the moving cause of the sale being effected, and that the sale would not have been made had it not been for the solicitation and efforts of the plaintiff.” The court intended, and the jury must have understood, that these two instructions should be considered together as stating the circumstances under which the plaintiff would be entitled to the commission even though he received assistance from the defendant or his agent in completing the transaction. The two instructions are not incongruous or contradictory. The term “instrumental” is defined by the court to mean such contribution by the plaintiff as that, without it, the sale would not have been made. In other words, the plaintiff must have been the moving cause which produced the sale or the procuring cause of the sale. (Armstrong v. Wann, 29 Minn. 126, 12 N. W. 345, approved in Shober v. Blackford, 46 Mont. 194, 127 Pac. 329.) We think the jury could not have been misled, and that the evidence is sufficient to make out a case under the rule thus announced.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
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PembertON, C. J.
— The only question for determination by this court is this: Is the plaintiff, by accepting the provisions made for her by the will of her deceased husband, estopped and barred from claiming dower in real estate of which he was seised of an estate of inheritance during coverture, and which he conveyed without her joining him in the conveyance thereof?
In Fairchild v. Marshall, supra, a well-considered case, and in which the authorities are collated, Mr. Justice Collins, delivering the opinion of the court, says: “The first question raised by the appellant herein is, Does the acceptance by the widow of the provision made for her in her husband's will bar her of such legal rights as are fixed by the General Statutes of 1878, chapter 46, section 3, in real estate sold and conveyed during coverture by the husband alone? Whether a person is required to elect between a provision in his favor in a will and a right independent of it depends wholly on the intention, expressed or implied, of the testator. If it be expressed in terms, or clearly appears from the entire will, that the testator intended a provision made by it in favor of a devisee or legatee to be in lieu of any other right or claim affecting the estate, the latter must elect which he will take; and if he accepts what the will provides he is precluded from asserting such other right or claim. Otherwise he might accept the will so far as it benefited, and defeat it as to other provisions. This court decided in Washburn v. Van Steenwyk, 32 Minn. 336, as before stated, that a will such as that under consideration made a case for election on the part of the widow between the provision made by it in her favor and that which the law makes to a widow out of the estate of her deceased husband. That is to be taken as the settled law of this state. The only question, save as hereinafter stated, left for this case by that decision is as to the extent to which she should be required to elect. Is she compelled to elect only as to rights given by law in the estate of which the husband died actually seised or estates which he assumed to dispose of by the will, or must she go farther and elect as to similar statutory rights in real property conveyed by him in his lifetime, but the title to which his general estate must make good if the title prove defective? The question points out the answer. The reason why it was held to be contrary to the intention of the testator that the widow should have both the testamentary and the statutory or legal provisions in her favor was that the assertion of the latter by her would be hostile to and tend to defeat the general purpose of the will. This reason applies with as much force to rights to which the law entitles her in real estate which the husband had conveyed during coverture, with covenants, aud which the general estate left by him was bound by, as it does to such rights in estates of which he died seised. The assertion by the widow of the legal right, in the one case, would diminish the estate to be distributed under the will, and so tend to defeat its provisions precisely as it would in the other. The assertion of the right would be adverse to the estate left by the testator for distribution under the will aud according to its terms. We therefore conclude that the acceptance by the widow of C. C. Washburn, deceased, of the provisions made for her in his will, was and is a bar to any legal claim in land alienated by him during coveture and by warranty deed. This view of the law commends itself to us, and seems to be supported by an unbroken line of authorities upon this precise question. (Steele v. Fisher, supra; Allen v. Pray, supra; Horsney v. Casey, supra; Buffinton v. Fall River Nat. Bank, supra; Raines v. Corbin, 24 Ga. 185; Haynie v. Dickens, supra.) Two cases cited by appellant to the contrary (Borland v. Nichols, supra, and Westbrook v. Vanderburgh, supra) simply construe statutes, and have no bearing upon the issue here. In another case to which the appellant has called attention (Higginbotham v. Cornwell, 8 Gratt. 83; 56 Am. Dec. 130) a recovery was permitted evidently because the devise was unconditional, and its acceptance did not require or involve an election by the widow. Neither by implication nor by the express terms of the will could that which she had accepted be declared a substitute for dower. Another case upon which the appellant relied (Braxton v. Freeman, supra) is to the same effect, and the court concludes its opinion with the proposition that, as a right to dower may be extinguished by the acceptance of something which may be given for the purpose of satisfying it, such purpose in a,will must appear by express terms or by necessary implication. It is evident from these decisions that the common-law rule in respect to the doctrine of election by a widow which prevailed in Virginia and South Carolina when these opinions were written was given a very narrow and restricted construction. The same rule of law in this state is less rigorously and technically applied. (In re Gotzian, 34 Minn. 159; 24 N. W. Rep. 920.)”
In Corry v. Lamb, supra, involving the same question, and under a statute very similar to ours, the court, after considering many leading cases, arrives at the same conclusion as the Minnesota court.
It is contended by appellant that the lands in controversy, having been alienated by Curtis during his lifetime, constituted no part of his estate, and that plaintiff is not barred from claiming dower therein by electing to take under the will. This contention was made in Corry v. Lamb, supra, and the court answered it by quoting with approval what was said by the Massachusetts court in Buffinton v. Fall River Nat. Bank, supra, as follows:
“The demandant contends that this land, having been aliened in the lifetime of the testator, is no part of ‘his lands/ and therefore not within the provisions of the statute above quoted. But the claim of dower out of the lands aliened, without release by the wife, stands upon the same right as that of dower in lands remaining as part of the estate devised. It may be equally prejudicial to the estate, tending to the exhaustion of the general assets by giving rise to claims upon covenants in the deeds of conveyance, or upon seire facias to revive in part the judgment for satisfaction of which the alienation took place. (Gen. Stats., c. 103, §§ 22, 23.) The same reason exists for applying the bar in one case as in the other. There is nothing in the phraseology of the statute to limit its application to lands held at the decease of the testator. The expressions, ‘endowed of his lands/ and ‘dower in the lands of her husband’ (Rev. Stats., c. 60, §§ 1, 11; Gen. Stats., c. 90, § 1), when used affirmatively, embrace, without question, dower in all lands of which the husband is seised at any time during coverture. It can have no more limited meaning when used negatively in defining the bar in the General Statutes, chapter 92, section 24.”
The statute of Massachusetts is very similar to the Ohio statute and our own.
Our statute (Sess. Acts 1876, § 6, p. 64) is as follows: “ Every devise of land, or any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands and her share in the personal estate.”
Section 7 of the same act provides that, unless the widow files her written renunciation of the will with the court within one year after the probate thereof, she shall be deemed to have taken under its provisions. Our statute provides that every devise of lands or any estate therein, by will, shall be a bar to the widow’s claim of dower, unless otherwise expressed in the will. The will of Curtis is made a part of the answer in this ease. It contains no expression that it was the intent of the testator that the bequest to plaintiff should be in addition to dower, or otherwise thau as a devise to her in lieu thereof. "We are of opinion that the plaintiff', by electing to take under the provisions of the will, barred herself of the right to claim dower in any real estate of which her husband died seised, as well as the lands aliened by him alone in his lifetime. By her election she in effect relinquished all her rights to be endowed in the lauds of her husband, whether the lands had been aliened by him alone in his lifetime, or whether they were lands of which he died seised. This is certainly in accordance with the great weight of authority.
The judgment appealed from is affirmed.
Affirmed.
De Witt, J., and HUNT, J., concur.
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De "Wept, J.
— We will state what the evidence was which tended to prove negligence, and which the respondent contends was sufficient for that purpose. There was some conflict in the evidence, but not a great deal. It showed the following facts; that is to say, there was ample evidence of the following facts, which evidence the jury apparently believed. The district court, on motion for a new trial, refused to disturb the verdict, and we find no reason to enter upon the question of fact thus settled.
Main street, in the city of Butte, is a great thoroughfare running north and south through the city. At No. 106, on that street, is a cellar under the sidewalk about .ten feet deep. In the sidewalk are double trapdoors extending east and west for six feet and eight inches. The width of the doors is each twenty-two inches, and the combined width three feet and eight inches. The sidewalk is about ten feet and three inches wide. On the west side of the trapdoor there are only eighteen inches between the doors and the edge of the sidewalk toward the street. On the east side of the doors there is only about two feet and three inches between the doors and the abutting building. The doors were made to open and lie back flat upon the sidewalk. That was the plan of their construction. There were no rods or hooks or other appliances to hold the doors upright when open. A two by four piece of timber was kept under the doors. This was laid on top of them when they were opened. It did not tend to keep them upright. In the plan and construction of the doors and the trap the method of operating was to lay the doors flat on the sidewalk when opened. If it were desired to keep them upright when opened appliances other than those belonging to the doors had to be obtained. As to this there is not even any dispute.
On the night of the accident the doors were open and lying flat on the walk; that is to say, there was evidence of that fact, which the jury apparently believed, and, from our reading of the evidence, we observe that such finding was amply sustained.
The city authorities knew the nature of the construction of this trap and these doors, and knew that they were made to lie open flat on the sidewalk unless appliances other than those connected with the doors were brought to their aid. The city authorities did not know that the doors were opened at all at the particular time of the accident.
The ordinances of the city of Butte were proved, showing that the city had assumed jurisdiction over the streets and had created the office of street commissioner and defined his duties. (Sullivan v. City of Helena, 10 Mont. 134.
At 6 p. M., after dark, December 20, 1890, plaintiff came up this Main street from the south. There was much conflict in the evidence as to the amount of illumination supplied by the lights in the neighborhood. Plaintiff came up the sidewalk along the outer edge of the same. At the southwest corner of the trap his progress was arrested by a box and a barrel standing at that corner, and which therefore blockaded his path along the eighteen inches of sidewalk which was outside of the trap. In order to pass the box and the barrel he turned to the riglit, and, in stepping forward, he suddenly became aware of a dark spot in the sidewalk, and, before he could withdraw his foot from the step which he had taken upon the dark spot, he was precipitated into the cellar, the dark spot turning out to be the open trap. He thus received the injuries of which he complains.
This is a statement of the evidence as it appears in the record favorable to plaintiff. There was some conflict in this evidence created by the defendant, but it is not now for us to inquire into such conflict. (See Montana cases on this point collected in Mattock v. Goughnour, 11 Mont. 274, and also Brundy v. Mayfield, ante, p. 201; Lambrecht v. Patten, ante, p. 260; Bradshaw v. Degenhart, ante, p. 267.)
The defendant moved for a nonsuit, which motion was denied. The same question which was presented on the motion for a nonsuit was also raised in other ways upon the trial. It is necessary to discuss that question but once. It is this, do the facts as above recited make out a case against the defendant, the city of Butte, for negligence in allowing the trap and doors to exist and be operated in the sidewalk as above described, which should have been submitted to the jury?
The further matter of whether this question was properly submitted will be considered later in this opinion, upon the examination of the instructions.
One ground of the motion for a new trial was that there was no statute in this state making municipal corporations liable for injuries, such as plaintiff complains of. This proposition, however, was upon the argument, abandoned by the appellant. (Sullivan v. City of Helena, supra.)
The appellant argues that the city of Bütte has no right to prevent the reasonable use of the sidewalk by an abutting owner, for, if it did so, there would be no ingress or egress for such cellars as that described in the complaint, and that the property rights of such owners would thus be confiscated. Appellant’s further argument is that as the city cannot prevent such reasonable use it is therefore not liable in this case. But no such proposition is presented in the case at bar. It is not conceded.that the use of this trap was a reasonable one. The question in the case was the allowance by the city of the main-tainance of such trap which was alleged to be a negligent and careless and dangerous condition of affairs. The case at bar is not such a one as the City of Lafayette v. Blood, supra, cited and relied on by the appellant. In that case an eighteen inch coal-hole in the sidewalk was open for a few moments to put in coal, and the plaintiff, a child, fell in. There was a finding in the case that there was no defect in the construction of the sidewalk and coal-hole. There is hot such a finding in the case at bar, where the evidence showed that the opening in the sidewalk occupied about seven-tenths of the width of the whole walk and was itself of a width which would require a man to run in order to clear the chasm when open. Furthermore no barriers were constructed in the doors or opening. The ordinary method of using the doors was to lay them flat on the sidewalk. The city authorities knew all of these facts. They knew of the existence and the nature of the trap and the method in which it was built to be used as above described. These things they permitted when it was the duty of the city-to keep the sidewalks safe for travel. By reason of the existence of this trap, and by reason of its being used on December 20th, as the nature of its construction permitted and suggested, if indeed they did not intend that it should be used, the plaintiff was injured.
Negligence is a question of fact for a jury. If there be clearly no negligence the court may so determine and grant a nonsuit. We certainly shall not hold in this case that, by the facts shown, it clearly appeared to the district court that there was no negligence by the city, defendant. We are of the opinion that it was proper that the case should go to the jury. As to the city’s liability in permitting the careless and negligent use of the sidewalk see: Sullivan v. City of Helena, supra; Barnes v. District of Columbia, supra; District of Columbia v. Woodbury, supra; 2 Dillon on Municipal Corporations, 1023; 3 Cooley on' Torts, 625; Jones on Negligence of Municipal Corporations, § 57; Indianapolis v. Doherty, supra; Barstow v. City of Berlin, supra; Galesburg v. Higley, supra; Smith v. City of Leavenworth, supra; Davenport v. Ruckman, supra.
By adopting this view as to the motion for a nonsuit we also dispose of the objections to those parts of the instructions which in effect express the same view of the district court as the court by necessary implication expressed in denying the motion for a nonsuit. We are satisfied that the instructions generally in this respect fairly and clearly submitted to the decision of the jury the question of negligence. They will be quoted below, and some particular objections to some of them will be specially noticed.
Another matter presented by the appellant is, that the city authorities had no notice that the trapdoors were opened at the time the accident occurred. This is true, as noted in the statement of the evidence which we have made above. The question, therefore, thus presented is this: if a city has knowledge of, and permits to exist, an opening and trapdoors in the sidewalk, which the city knows are dangerous whenever they are used in the manner for which they were built to be used and ordinarily are used, then, in order to hold the city liable for injuries occurring by such use of such a dangerous opening, must it be shown that the city has knowledge that the dangerous thing is used at the particular time when the accident occurs? We think not. We are of the opinion that to so hold would be wholly unreasonable and illogical. If the dangerous thing exists for a given use, the city permitting it to so exist for such use, the city must presume that it will be so used. These trapdoors and this opening in this case were for a given use and the city knew of that use, and the city certainly cannot avoid liability by demanding that it be notified every time the dangerous thing is put to the usé intended and contemplated by its existence and construction. (Smith v. Leavenworth, supra; 2 Dillon on Municipal Corporations, § 1026, note, and cases cited.)
It is said by Judge Dillon in the note last cited: “If the defect arise otherwise than from faulty structure, and from some act other than the direct conduct of the defendants or their servants, and be a recent defect, it is generally necessary to show that defendants or their servants had knowledge thereof or were negligently ignorant of it.”
Numerous cases are cited to sustaiu ¿he text. But, in the case at bar, the defect did not “arise otherwise than from faulty structure.” The faulty structure was the dangerous element. Nor was the defect “recent.” It belonged to the structure. The defect did not arise “ from some act other than the direct conduct of the defendant.” The direct conduct of the defendant allowed the defect to exist. The circumstances, as noted by Judge Dillon, did not exist in this case which would require any special knowledge to be brought to the defendant city.
It is charged in the answer of the defendant that whatever injuries plaintiff received were by reason of his own contributory negligence. About the only evidence in this respect which is now claimed to show contributory negligence was the testimony tending to show that the plaintiff was nearsighted. Upon this subject the defendant asked the following instruction:
No. 9. “You are instructed that where a shortsighted person is injured in a public place where sight is ordinarily required that the shortsightedness of the person injured does not of itself establish contributory negligence as a matter of law, but the shortsightedness of the person injured may be considered by the jury, if the fact of the shortsightedness of the plaintiff appears from the evidence in the case, upon the question of due care, and as an evidence of contributory negligence; and, if it appears from the evidence that the defect of sight, coupled with exposure to danger, was the cause of the injury complained of, which otherwise would not have occurred, then and in that event the jury will be justified in finding that the plaintiff was guilty of contributory negligence, and if you so find from the evidence that the plaintiff was guilty of contributory negligence you should find a verdict for the defendant in the action.
This instruction was by the court refused. We think that this was no error. The fact of the nearsightedness is certainly not of itself evidence of contributory negligence. (Davenport v. Ruckman, supra; Barstow v. City of Berlin, supra; Beach on Contributory Negligence, §§ 396, 397.)
Appellant contends that instructions 2, 3, 4, and 6 are inconsistent with instruction No. 11. Those instructions are as follows:
No. 2 given. ‘‘The jury are instructed, that, if the city authorities knowingly permitted a person to occupy, open, or obstruct the sidewalk it is the duty of such authorities to use all reasonable care and precaution to see that the person so per mitted properly guards and protects such opening or obstruction, and if the city authorities negligently fail to perform such duty the city would be liable to one who is injured, by reason of such opening or obstruction, if he were himself at the time using ordinary care for his own safety.”
No. 3 given. “The jury are therefore instructed, that, in this case, if they find from the evidence that the city authorities knowingly permitted a person or persons to occupy or open such sidewalk, at the place in question, and negligently failed in their duty to use all reasonable care and precaution to see that the person, or persons, so permitted properly guarded and protected such opening or obstruction, and that such opening or obstruction was not properly guarded or protected, and that by reason thereof the plaintiff was injured, and was at the time in the use of reasonable care for his own safety, you should find for the plaintiff.”
No. 4 given. “You are instructed, that, if you find from the evidence in this case, that the city of Butte permitted a cellar-way or area-way to be constructed or maintained under the sidewalk of Main street at the place alleged in the complaint, and that the said cellar-way or area-way was not guarded except by trapdoors, and was dangerous for persons traveling on said sidewalk when such trapdoors were not closed or one of them was not; and if you further find from the evidence that the city permitted the persons owning or occupying the adjoining lot, or persons acting under them, to open or close said trapdoors, or either of them, at their option, at or about the time alleged in the complaint; and that the said trapdoors, or one of them, was open, and that the plaintiff, without fault on his part, fell into said cellar-way or area-way and was thereby injured, then you shall find for the plaintiff.”
No. 6 given. “You are instructed that, if the mayor and the street commissioner of the city of Butte, or either of them, knew, prior to the time of the alleged injuries to the plaintiff, that persons were in the habit of opening or closing, at their option, trapdoors in the sidewalk at the place in question, and that said trapdoors when open left a dangerous place in the sidewalk (if you find from the evidence that there were such trapdoors, and that such persons were in the habit of so open ing and closing the same, and that the place was dangerous when the doors were open); and that said officers had such knowledge for a length of time sufficient to enable them to put a stop to the practice or to adopt proper precautions to insure the safety of persons traveling on the sidewalk, and did not interfere or adopt such precautions, and that such persons were allowed to continue such practice, then you will find that thé city permitted the existence of trapdoors, and the opening and closing of the same by said persons at the latter’s option.
No 11 given. “You are further instructed that, notwithstanding the jury may believe from the evidence that the sidewalk at the time of the alleged injury was defective, yet this alone would not be sufficient evidence of negligence on the part of the defendant. In order to charge the defendant with negligence it must appear from the evidence not only that the sidewalk was defective at the time of the alleged injury, but it must further appear that such defect was actually known to the city through some of its officers, agents, or servants, or that the defect had existed for such a length of time prior to the alleged injury that the city, if exercising ordinary diligence, would or should have known of the defect.”
These instructions are consistent, and we are of the opinion that they state the law correctly. (See authorities above cited.) The instructions, stating it briefly, say to the jury that, if it appears from the evidence that the alleged dangerous defect existed in the sidewalk, and that the city knew of it and permitted it, and plaintiff was injured thereby without his own fault, the city was liable. It is perfectly apparent that there was evidence, as above noted, to j ustify these instructions. The instructions refused, on the other hand, present a different view of the law and one inconsistent with those given. We are of the opinion that there was no error in giving or refusing the instructions.
Another ground of motion for a new trial was “ excessive damages awarded plaintiff by the jury in said cause appearing to have been given and assessed under the influences of passion and prejudice.” (Code Civ. Proc., § 296.)
It is argued by the appellant that the evidence does not at all justify a verdict in the amount of four thousand five hun dred dollars, and that therefore it must be concluded that the same was given under the influences of passion and prejudice. The defendant’s left arm was broken and bruised. The physician who treated him testified as follows:
“ There is some atrophy of the muscles of that arm, some wasting; there has been more or less of a thickening taken place about the joint where the fracture was. The fracture was the head of the bone of the arm. There was a separation of the head of the bone over the shaft. The head was broken from the shaft. During the healing of the fracture, if every thing is favorable, the callus is absorbed. That is not wholly true in this case. I don’t think that the plaintiff’s arm will ever be a perfect arm, or as good as it was before it was injured; at present there is some enlargement of the bony tissue interfering with the freedom of motion. He could do some manual labor with it. He would be a person, if I was rating him from the experience I have had as an examining surgeon for the government, I would rate him three-fourths totally disabled. He was under my treatment for about six weeks, when he was coming regularly to my office. The injury was of a painful nature. Persons injured in this manner would necessarily suffer some pain; generally I would say that they would suffer pain for some time; during the healing process there would not be as much pain as when attempting to gain motion in it. There would be more pain in it then. I examined him at different times for three or four months. In a degree a man might use that arm; he might use it to eat with or to hold his fork, probably. When I say three-fourths totally disabled, that is three-fourths total disablement of the entire person. As to the ratio of disablement of that arm alone there is no such rating. I have had no experience in such rating as to a particular limb. Bates are not given in that way. It takes the percentage from a man’s capability of earning a livelihood by manual labor. I should judge he was fifty years of age; he may be sixty; he may not be over forty. He has the appearance of premature age. I think under difficulties that this man might be able to hold, if he was right handed, one end of an ax and split his own fuel for his house if he was keeping house. He might be able to do most any kind of manual labor. He could do a certain amount of work, probably might be able to do one-fourth as much as a man would do, but it would be under difficulties. No kind of labor would be beneficial to him that would cause motion in that joint. I required him for months to go through a very severe pain trying to break up the adhesion in the joint by extending his arm and working it up the side of the house or other exercise.”
The doctor also said: “He could wield a pick in a mine in his left hand, as I said, and use his other arm — depend upon his right mostly — he could do a certain amount of work.”
There is some other testimony by the doctor as to gymnastics and parallel bars, but we think that this was simply some humor between the witness and the counsel. The plaintiff himself also testified to the injury. This is all the testimony there was as a basis for finding the amount of damages. In the case of Kennon v. Gilmer, 5 Mont. 257, there was a verdict for twenty thousand seven hundred and fifty dollars. The injury there was the loss of a foot. The amount of the verdict was greater than could have been given to the personal representatives of the injured person if he had been killed. The court cut the amount down to ten thousand seven hundred and fifty dollars. In rendering their decision they quote the following case of the Union Pac. R. R. Co. v. Hand, 7 Kan. 393, as follows: “Of course, courts are reluctant to interfere with the verdicts of juries on the ground of excessive damages; but, to uphold them where a great wrong has been done, would, as a precedent, be doing an infinite wrong to the community. The rights of parties are submitted to the unbiased judgment of juries, not to their passions or prejudices, and, where it is apparent that these feelings have entered into and influenced their decision, it becomes the duty of the court to see that a tribunal organized to administer justice is not perverted from its proper purpose to become the instrument of oppression and injustice.”
The question, therefore, is, in the case at bar, is it apparent that the verdict was rendered under the influences of passion and prejudice. We are of the opinion that there is not sufficient in the record to show that such sentiments entered into the consideration of the jury. It is argued that when the doctor testified that the plaintiff was three-fourths totally dis abled, that he meant that this disability came partially from causes other than the injury to the arm. But it appears that the doctor was testifying as to the injury to the arm only, and the fair conclusion from his testimony is that the injury to the arm caused this three-fourths disability. He says he does not rate the arm as a separate item, but he evidently means to say that, by virtue of the injury to the arm, the whole physical capacity of the man is reduced to one-fourth of a whole man. There is no testimony whatever in the case to contradict that of the doctor and. the plaintiff in this respect. It is not shown that plaintiff was suffering from any disability prior to the time of the accident. The jury, under our system of jurisprudence, is the tribunal to determine the amount of damages which should be awarded to a plaintiff if it is shown that he is injured by the fault of the defendant. Under our statute the ground for a new trial in this respect is excessive damages given under the influences of passion and prejudice. It is not claimed by the appellant that there is any thing whatever in this case to show passion and prejudice beyond the fact that a verdict was given for a larger amount than the appellant thinks the evidence justifies. But as to that, as above remarked, the jury are the judges. We do not think that the showing in this case authorizes us in granting a new trial, or in reducing the verdict, in case the respondent did not accept a new trial. (2 Thompson on Negligence, § 66, p. 1269, and cases cited.)
In a similar matter the supreme court of Massachusetts said: “In regard to the first reason assigned for a new trial we are of opinion that the damages assessed are not so excessive and unreasonable as to warrant the interference of the court in a matter which is peculiarly within the province of the jury to determine. In all cases where there is no rule of law regulating the assessment of damages, and .the amount does not depend on computation, the judgment of the jury and not the opinion of the court is to govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.” (Worster v. Proprietors of Canal Bridge, 16 Pick. 541.)
We have reviewed all the errors assigned in this case, and are of the opinion that the judgment and the order denying a new trial must be affirmed, and it is so ordered.
Affirmed.
Pemberton, C. J., and Hunt, J., concur.
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] |
Pembekton, C. J.
— The verified statement which plaintiff claims in its complaint it furnished the assessor to aid him in ascertaining the number of shares of the stock of the bank, and in fixing the value at which the same should be assessed to the individual shareholders, is attached to the complaint as an exhibit and made part of the pleading. This paper is an assessment-list such as is required by law to be made out and returned to the assessor. It is printed, and on the back thereof is this endorsement: “ Assessment-list of property subject to taxation owned, claimed, or in possession or control of First National Bank at 12 M. on the first Monday of March, 1893,” and is sworn to by the cashier of the plaintiff bank. This list contains a list of the real estate, improvements thereon, capital stock, surplus and undivided px-ofits, with the amounts and value of all of said property, with a deduction of one-third of the value thereof claimed by the cashier. From an inspection of this tax-list, which is a part of the complaint, we think it cannot be held that it is simply a “ verified statement ” to aid the assessor in assessing the individual shareholders, as claimed by plaintiff.
Section 6 of the Revenue Law, approved March 6, 1891, is as follows:
“Sec. 6. The stockholders in every bank or banking association, organized under the authority of this State or the United States, must be assessed and taxed on the value of their shares of stock therein, in the county, town, city or district where such bank or banking association is located, and not elsewhere, whether such stockholders reside in such place or not. To aid the assessor in determining the value of such shares of stock the cashier or other accounting officer of every such bank must furnish a verified statement to the assessor, showing the amount and number of shares of the capital stock of each bank, the amount of its surplus or reserve fund, the amount of investments in real estate, which real estate must be assessed and taxed as other real estate.”
It may be conceded that the assessment of the capital stock of the bank to, and as the property thereof, was unauthorized in this case under said section. The bank had a right to object to this assessment. But it appears that it returned in its list of property for taxation its capital stock as property owned, possessed, or controlled by it. And, if it objected or desired to object to being thus assessed, it should have gone before the board of equalization and had the correction made.
It is contended by appellant that the board of equalization had no authority to make this correction. It is the duty of this board to “ examine the assessment-book and adjust and equalize the valuation of the taxable property of the county.” We do not think it can be successfully contended that under the law this board has no authority to correct an assessment when property has been assessed to a party which he does not own, or when there has been a double assessment, or property exempt from taxation has been assessed, etc. The most that can be said in this case is that property has been assessed to plaintiff which it claims it does not own, and is therefore not liable for the taxes thereon. If such be the fact the plaintiff should have gone before the board of equalization for relief. In its complaint it gives no sufficient reason for not doing so. This court held in Northern Pacific R. R. Co. v. Patterson, 10 Mont. 90, that a complaint, seeking to enjoin the collection of a tax on the ground of irregularity or illegality in the assessment thereof, which did not show that the complainant had first sought relief before the board of epualization, was bad on demurrer. (See also authorities cited in that case.)
In Bourne v. Boston, 2 Gray, 494, Mr. Justice Bigelow says: “The plaintiff was not legally taxable for the property held by him as trustee, but he was taxable for the property of his ward in the city of Boston, and therefore a portion of the tax which in this action he seeks to recover back was rightly assessed to him. This would seem to briug the case within the principle, now well settled by the authorities, that, where a person is liable to taxation for personal and real estate in a city or town, his sole remedy, for an overtaxation caused by an excessive valuation of his property, or by including in the assessment property of which he is not the owner, or for which he is not liable to taxation, is by an application to the assessors for an abatement.”
It seems to be the well-settled rule that, when the law has provided boards of equalization with power to adjust or correct assessments, parties being dissatisfied with the assessment of their property must apply to them in the first instance for relief, and that courts of equity will not interfere by injunction to restrain an irregular or illegal assessment until such relief has been sought and denied.
In Stanley v. Supervisors of Albany, 121 U. S. 550, the supreme court says: “To tírese boards of revision, by whatever name they may be called, the citizen- must apply for relief against excessive and irregular taxation" when the assessing officers had jurisdiction to assess the property.” (See High on Injunctions, 3d ed., 485, and authorities cited.)
Courts of equity are very reluctant to interfere by injunction with the collection of the revenue of the government, and will not do so except in cases when the party has no proper relief at law. The plaintiff having returned its list of property that it did own for taxation, and having included in such list property that it did not own, and for the taxation of which it was not liable, according to the well-settled rule, should have ap plied to the board of equalization to correct said list, and for relief from the payment of the taxes of which it now complains, and, having failed so to do, it is not entitled to the equitable relief prayed for in its complaint.
It is conceded by the appellant that its bank stock was subject to taxation, provided it was taxed as the property of the individual shareholders. It is not contended that any unjust discrimination as between this bank stock and other moneyed capital in the state has been made in the taxation thereof. It can only be contended that the assessment was illegal in that the capital stock was assessed to the bank instead, of the individual shareholders. To correct this irregularity it was the duty of plaintiff to apply to the board of equalization. (Meyer v. Rosemblatt, 78 Mo. 495; Oteri v. Parker, 42 La. Ann. 374; Board v. Cattle Co., 31 Pac. Rep. 268; Mead v. Haines, 45 N. W. Rep. 836.)
We think no error has been shown in the action of the court below. The judgment is affirmed.
Affirmed.
De Witt, J., and Hunt, J., concur.
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De Witt, J.
— It is quite true that there was some apparently rather substantial testimony,, introduced on the part of the defendants, tending to show that, when the application was made for the placer patent, the vein of the Augusta lode claim was known to exist. They introduced evidence showing that on the 16th of April, 1875, John Noyes and David Upton, who were two of the placer applicants, had located the alleged vein as the Eldorado quartz lode mining claim. They also showed that the said locators of the Eldorado claim sold the same to one Adam Earrady, the consideration named in the deed being five hundred dollars. This was long before the placer application. It was also shown that said Earrady worked said claim as a quartz mine, and took out some ore therefrom. It also appeared in evidence that Ered Anderson and others, between 1878 and 1880, did some quartz mining upon the same ground, and took out ore therefrom, which was worked. As to the value of the ore which these people took out the testimony is not quite clear. It was also attempted to be shown that the Anderson people relocated this same ground on February 23, 1878, as the Bettina lode claim. The location notice of the Bettina claim was by the court excluded from the testimony, because there was no proper verification to the notice; but, notwithstanding this exclusion of that testimony, still the defendants were allowed to show that Anderson and his partners did mining work upon the ground, and took out ore therefrom. It was also shown that the placer miners, Noyes and Upton, in running a ditch across their ground, cut through the surface to some depth, and that the flow of water exposed the vein to view. There was some other testimony in the case tending to show that the vein was known to exist prior to the application for the placer patent, but we will not go farther into the recital of that testimony, for we are of opinion, as we shall hereinafter express, that the testimony of plaintiff created a substantial conflict as to whether or not the vein was known to exist at the time when the placer application was made, and, when we use the word “vein,” we mean, not simply a streak of quartz which was apparent, but, on the contrary, we mean to indicate a quartz vein in its legal sense, such a one as known to exist at the time of the placer patent, can be held to be excluded from such patent.
Recurring first to the testimony of Adam Farrady, the grantee of Noyes and Upton in the Eldorado claim, he testified that he did some work upon the claim, and took out some ore, but that he gave it up and abandoned it because it did not pay him to work it, and there appeared to be nothing in it to warrant him in incurring any further expenditures on his part in developing the said claim as a quartz lode mine.
There was testimony of several other witnesses that prior to the application for the placer patent they had been over the ground many times where the vein was alleged to exist, and that they did not know of any vein on 'that ground which would justify working as a quartz mine.
The important testimony, however, on behalf of plaintiff, was that of David N. Upton. He was one of the applicants for the placer patent, and he was also one of the locators of the Eldorado quartz lode mining claim. Mr. Upton said: “We never did any work on the claim [meaning the Eldorado quartz claim.] The reason that we did n’t was that we did n’t consider it worth any thing as a quartz proposition; we never did any thing with the claim, just abandoned the location; I don’t know whether we sold it to Farrady; I don’t recollect making a deed for it; there may be a deed, but I don’t recollect it.” Mr. Upton says elsewhere in his testimony that Farrady did not pay him five hundred dollars for the Eldorado claim; he could not, however, successfully deny making the deed to Farrady, because the same was introduced and offered in evidence.
Witness Upton, although he could not successfully deny the making of the deed, contended throughout his whole examination that the “quartz proposition,” as he calls it, was not worth any thing, and for that reason he and his partners gave it up. He says further: “ There was no quartz lead known to exist in this placer claim prior to our application in 1880, that I know of, except this one that we located.” This witness testified that the ground was more valuable for placer than it was for quartz. As to the work which Anderson and his partners did on the claim, the witness Upton testified that he was living right by the ground for many years; he says: “Anderson and that outfit did not take out a pound of ore, to my knowledge, during 1878 and 1879; I was working right in that vicinity, on the same lot where I am now, since 1866. I passed back and forth on this ground every day while we were working the placers. As to the Eldorado claim, the reason we did not represent it was that we considered it valueless for a quartz claim. We never did any work on it to my knowledge.”
There were the'following questions and answers between this witness and the court:
“Q,. Let me ask you one question, Mr. Upton. At the time you made this location of the so-called Eldorado, and up till 1888, was this vein, or supposed vein, upon which you made the location, at any time, in your judgment as a miner, of sufficient value to justify exploitation or development? A. No, sir; it was not.
“Q,. I understand you to say that was a reason why you did not hold it ? A. Yes, sir; there was no indication of a quartz lead on the ground that I know of, any thing more than this place in the ditch.
“ Q,. You thought that what you found there was not sufficient to justify development and exploitation as a quartz claim? A. Yes, sir.”
It does not appear to be necessary to quote the evidence further. Between the defendants’ and the plaintiff’s testimony there was a conflict, as above detailed, upon which conflict the court found in favor of the plaintiff. The question of law, however, is whether the testimony of plaintiff did in fact raise a substantial conflict, that is to say, whether the evidence of plaintiff was, not simply that a vein did not exist, but whether plaintiff showed that there did not exist a vein of quartz in legal contemplation, that is, such a vein as would be excluded from the placer patent.
The question of “a vein known to exist at the time of an application for a patent” for the ground, under placer and townsite laws, has engaged the attention of the United States supreme court many times within the last few years, and in one case resulted in an earnest dissension in that distinguished tribunal. (Iron Silver Co. v. Mike etc. Co., 143 U. S. 394.) But in that case the contention within the court seems to us to have been more upon the question of facts in that particular case, than upon a view of the law. We therefore feel that, as to the law, we may, with propriety, quote from both the prevailing and dissenting opinions in the case. As to what a vein is, we undertook, in the case of Shreve v. Copper Bell Min. Co., 11 Mont. 309, to state what we believed was the opinion of the United States supreme court upon that subject. We said, quoting from the syllabus of that case, which states the conclusion correctly, as follows: “It is not essential to the validity of the location of a mining claim that the discoverer should have found, prior to his location thereof, that the lode contained mineral deposits of sufficient value to justify work to extract them; but the spirit of the statutes is satisfied by the discovery of mineral deposits of such value as to at least justify the exploration of the lode in expectation of finding ore sufficiently valuable to work. (Davis v. Wiebold, 7 Mont. 107, reviewed and distinguished.)”
This view, we believe, was in accord with the decisions of the United States supreme court rendered prior to our decision in the Copper Bell case (December 14, 1891), and also with the utterances of that court since that date.
We quote as follows from the case of United States v. Iron Silver Min. Co., 128 U. S. 683: “It appears very clearly from the evidence that no lodes or veins were discovered by the excavations of Sawyer in his prospecting work, and that his lode locations were made upon an erroneous opinion, and not upon knowledge, that lodes bearing metal were disclosed by them. It is not enough that there may have been some indications, by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other metal, to justify their designation as ‘known5 veins or lodes. To meet that designation the veins or lodes must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation. Although pits and shafts had been sunk in various places, and, what are termed in mining, crosscuts had been run, only loose gold and small nuggets had been found, mingled with earth, sand, and gravel. Lodes and veins of quartz or other rock in place bearing gold or silver or other metal were not disclosed when the application for the patents was made. The subsequent discovery of lodes upon the ground, and their successful working, does not affect the good faith of the application. That must be determined by what was known to exist at the time. It is not, therefore, a fault to be charged upon Sawyer that he abandoned his original lode locations after he had discovered that they were worthless, in order to make locations of placer claims."
In Iron Silver Min. Co. v. Campbell, 135 U. S. 287, the court, speaking of a placer patent, said: “There is excepted from that grant any lode existing and known at the time application was made for his patent. Whether such a lode did exist, and whether it was known to him, is a question which he has a right to have tried by a court of justice, and from which he cannot be excluded by the subsequent action of the officers of the land department. .... But, in the present case, two facts requiring judgment, discretion, knowledge of the law, and the balancing of testimony, are essential to the exercise of the right to grant the property to some other party. One of these, the existence of such a vein, is a question often of great conflict of evidence, requiring the weighing of testimony. The other, the most important of all, the most difficult to decide, the least likely to be decided correctly by ex parte testimony or in ex parte proceedings, is the question whether, if such mine existed, it was known to the party who applied for the patent at the time application was made. And while we are not yet prepared to say at this time that the land officers cannot, on a prima fade case, decide the right of the applicant to such vein and give him a patent for it, we are satisfied that in any conflict between the title conferred by two patents, whether it be in law or in equity, the holder of the title under the elder patent has a right to require that the existence of the lode, and the knowledge of its existence on the part of the grantee of the elder patent, should be established.”
As to the case of Davis v. Weibold, 139 U. S. 507, we very fully expressed our views in Shreve v. Copper Bell Min. Co., 11 Mont. 309, cited, and need not now reiterate them.
The Iron Silver Co. v. Mike etc. Co., 143 U. S. 394, came into the United States supreme court later (February 29,1892), and, for the reason which we have suggested above, we feel at liberty to quote from both opinions in that case. We extract the following from the majority opinion: “The second matter is this: Was there a known vein at the time of the application for a patent, within the meaning of section 2333? It was not then a located vein or lode, and the case was evidently tried by the plaintiff upon the theory that unless it was a located vein it was not a known vein, but that, as we have seen, is not a correct interpretation of the statute. It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent, or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises for the purpose of obtaining title from the government.Another question is, whether this was suc.h a vein-bearing gold, silver, cinnabar, lead, or other valuable deposit as that a discoverer could obtain title thereto under sections 2320 and 2325. It is undoubtedly true, that not every crevice in the rocks, nor every outcropping on the surface, which suggests the possibility of mineral, or which may, on subsequent exploration, be found to develop ore of great value, can be adjudged a known vein or lode within the meaning of the statute. As said by this court in the case of United States v. Iron Silver Min. Co., 128 U. S. 673, 683: ‘It is not enough that there may have been some indications, by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold, or silver, or other metal, to justify their designation as “ known” veins or lodes. To meet that designation, the veins or lodes must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation. And yet, in the case of Iron Silver Min. Co. v. Cheesman, 116 U. S. 529, 536, this court sustained an instruction as to what constitutes a lode or vein, given in these words: ‘To determine whether a lode or vein exists it is necessary to define those terms; and, as to that, it is enough to say that a lode or vein is a body of mineral or mineral-bearing rock, within defined boundaries in the general mass of the mountain. In this definition the elements are the body of mineral or mineral-bearing rock and the boundaries; with either of these things well established, very slight evidence may be accepted as to the existence of the other. A body of mineral or mineral-bearing rock in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such a body, and to the extent of it, boundaries are implied. On the other hand, with well-defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure, and, if in such fissure ore is found, although at considerable intervals and in small quantities, it is called a lode or vein/ It is, after all, a question of fact for a jury. It cannot be said, as a matter of law in advance, how much of gold or silver must be found in a vein before it will justify exploitation and be properly called a ‘ known ’ vein.”
We take the following language from the dissenting opinion: “Bat, as I shall show hereafter, the mere indication or presence of gold or silver is not sufficient to establish the existence of a lode. The mineral must exist in such quantities as to justify expenditure of money for the development of the mine and extraction of the mineral. It would create surprise among miners to be told that if a trace of loose gold, such as is shown here, was found at any one spot in a tunnel leading to a placer claim, it would establish the existence of a vein or lode in the placer claim, and form the basis of a proceeding to despoil a purchaser from the patentee, years after the purchase, of a large portion of its mining property.The presumption in favor of its validity attends the placer patent, as it does all patents of the government of any interest in the public lands which they purport to convey. So potential and efficaeious is such presumption that it has been frequently held by this court, that if, under any circumstances in the case, the patent might have been rightfully issued, it will be presumed, as against any collateral attack, that such circumstances existed. (Smelting Min. Co. v. Kemp, 104 U. S. 636, 646.) As was said by the circuit court in the Eureka case, a patent for a mining claim is ironclad in its potency against all mere speculative inferences. (4 Saw. 302.) The burden of proof therefore rested upon the defendant to show affirmatively that it was entitled, as against that patent, to the possession of the lode claim, on the ground that the lode was excepted from the patent in express terms.To bring, therefore, a vein or lode of quartz or other rock in place bearing precious metals within the exceptions • of the statute, and of course within those of the patent to the extent to which they are operative, the vein or lode, according to the decisions referred to, must have been known to exist at the time application was made for the patent. The applicant could not, of course, speak of discoveries not then made; necessarily, his knowledge must have been limited to the time of his application.As stated above there can be no location of a lode or vein until the discovery of precious metals in it has been had. And then it is not every vein or lode which may show traces of gold or silver that is exempted from sale or patent of the ground embracing it, but those only which possess these metals in such quantity as to enhance the value of the land, and invite the expenditure of time and money for their development. No purpose or policy would be subserved by excepting from sale and patent veins and lodes yielding no remunerative return for labor expended upon them. Such exceptions would only be productive of embarrassment to the patentee, without any benefit to others. In a suit brought by the United States to cancel certain placer claims against the plaintiff in this case, alleging, among other things, that the patents were obtained by false and fraudulent representations, that the land contained no known veins or lodes of quartz or other rock in place bearing gold, or silver, or other metals, the court, speaking of the evidence in the case as insufficient to sustain the allegation, said: * It is not enough that there may have been some indications, by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold, or silver, or other metal to justify their designation as ‘known’ veins or lodes. ' To meet that designation the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account and justify their exploitation.’ (United States v. Iron Silver Min. Co., 128 U. S. 673, 683. See, to the same purport, Deffenback v. Hawke, 115 U. S. 392, 404, and Colorado Coal Co. v. United States, 123 U. S. 307, 328.) .... To sustain the admission of such beliefs or opinions in evidence against the patent would be to take from that instrument of the government all the peace and security which it is supposed to give its possessor in the enjoyment of the property it transfers to him. An unlocated lode claim, existing only in the impressions and beliefs of neighbors or others, and not in knowledge founded upon discovery and exploration, does not seem to me to have any element of property or validity as a basis of a defense to proceedings to obtain a patent from the government.”
The case of Dower v. Richards, 151 U. S. 658, was a controversy between a townsite patent and a placer patent. In that case the court said: “There can be no doubt that the decision of the supreme court of the state in this respect was correct. It is established by former decisions of this court, that, under the acts of Congress which govern this case in order to except mines or mineral lands from the operation of a townsite patent, it is not sufficient that the lands do in fact contain minerals, or even valuable minerals, when the townsite patent takes effect; but they must at that time be known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them; and if the lands are not known at that time to be so valuable for mining purposes, the fact that they have once been valuable or are afterwards discovered to be still valuable, for such purposes does not defeat or impair the title of persons claiming under the townsite patent. (Deffenback v. Hawke, supra; Davis v. Weibold, supra.)
We call attention to the facts in that case to exemplify how far the United States supreme court has gone in requiring strict and satisfactory proof that the vein was known to exist at the time that its competing patent was issued.
Applying these principles to the facts in the case at bar, we find positive testimony on the part of plaintiff that the vein which the defendant Hennessy located in 1888, although conceded to be known as a vein prior to the placer application, was not, prior to that application, known to be such a vein as the decisions hold to be exempt from the placer grant. There was positive testimony before the district court that the vein of the Augusta lode mining claim, at the time of the application for the placer patent, was not one which was known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them. (See the doctrine as stated by us in Shreve v. Copper Bell Min. Co., supra, and affirmed in Dower v. Richards, supra.)
We are, therefore, of opinion that the district court must be sustained in its holding that there was not, at the time of the application for the placer patent, such a vein known to exist as would exempt the same from a placer grant.
Of course it is apparent that the views which we have herein expressed are not out of accord with the decision of the United States supreme court in Barden v. Northern Pac. R. R. Co., 154 U. S. 288, for in that case the exemption of mineral lands was of such lands, whether known or unknown.
There was a substantial conflict of testimony, as we have shown, as to whether the Augusta vein was legally known to exist at tbe time of the application for the placer patent. When there is a substantial conflict in the evidence, and that conflict has been resolved by the district court, and the district court has denied a motion for a new trial, this court will not disturb the result. This doctrine has been so persistently announced by this court for twenty-six years that it may be considered as the settled rule in this jurisdiction.
Another error assigned by the appellants is that the district court allowed plaintiff to introduce testimony that at the time of the placer application the ground was more valuable as a placer mine than as a quartz lode mine. We are of opinion that such testimony was not in the nature of conclusive evidence, but that it was competent as tending in some degree, slight perhaps, to prove that the vein was not such a one as to exempt it from the placer grant. (See the cases heretofore cited in this opinion.)
Another error assigned by the appellants is the exclusion by the court of the location notice of the Bettina lode claim. This was a location attempted to be made by Anderson and others, on February 23,1878, upon the vein which defendant Hennessy af-terwards located as the Augusta. It is conceded that the location notice of the Bettina was defective in that it was not verified. (O’Donnell v. Glenn, 8 Mont. 248; 9 Mont. 452; Metcalf v. Prescott, 10 Mont. 283.) But appellants claim that the location notice was competent testimony as tending to prove that a vein wTas known to exist. Whether it was competent or not does not seem to be material at this time, for the reason that defendants were allowed to prove by the testimony of the attempted locators their knowledge of the existence of the vein. They testified very fully in this respect, and they were permitted to say all that they could have said if their invalid location notice had been permitted to be introduced in testimony. Therefore, the defendants could have suffered no injury in this respect.
We are of opinion that none of the errors assigned can be sustained, and the judgment is therefore affirmed.
Affirmed.
HuNT, J., concurs.
|
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] |
De Witt, J.
— It appears that, by the statutes of the state} the sheriff has the custody of the jail of his county, and the prisoners therein. (Comp. Stats., div. 5, § 1270.) He is to keep the prisoners, and he is personally liable for their escape, if it occurs. Under these circumstances the statute properly gives to the sheriff the appointment of his jailer. In the case at bar the sheriff made such appointment. The absolute necessity of the appointment of the second jailer, Richards, was proved, and is conceded. The jail of that county was a busy place by day and by night, and as much so by night as by day. It was simply impossible for one jailer to serve for the twenty-four hours of the day. The necessity for the appointment of the death watch was as clearly proved.
In tbe ease of Platner v. Commissioners, 5 Mont. 459, the sheriff was refused pay for a jailer, on the ground that no authority was shown for his appointment, and no necessity for his services. But here both the authority and the necessity appear. With this clearly proven necessity this case cannot be a precedent for allowing pay for such services on any fictitious or pretentious claim by a sheriff for allowance for such expenses.
No question is raised in this case as to the amount of compensation claimed by the sheriff. Therefore, authority being given for the appointment, and necessity being shown therefor, we cannot hesitate to say that the county is liable.
As to the death watch, the necessity appears as clearly, and, while there is nothing in the statute as to who shall select such person, we are of opinion that, under the statutory liability of the sheriff for the safety of his prisoners, the authority to select a death watch, for such purpose, must rest with the sheriff, and not with the commissioners. Therefore, the county is liable on both items of the account. Indeed, there is not much contention between counsel as to this branch of the case.
The substantial controversy, as made upon the argument, is whether Lloyd, the sheriff, has the right to sue for the money which he thus paid out. The appellants contend that, in the absence of any showing that Richards or Knight assigned their claims against the county to Lloyd, Lloyd is not the party in interest, and cannot maintain the action. But we are of opinion that an assignment to Lloyd was not required, and that this was money paid out by Lloyd for the county, for which the county was liable to Lloyd.
Richards and Knight knew that the county commissioners declined to pay them. It is a fair presumption, from the evidence, that men do not work without a compensation, or a contract therefor. Richards presented his claim to the county commissioners for the first month of his service, and for every month thereafter, and was refused payment. We think it was fairly in the evidence that he and Knight, under the circumstances, looked to Lloyd for their pay. Lloyd’s situation was this: He, as sheriff, was under the official duty of caring for the jail and the prisoners. He was liable if he failed in his duty. He had power to appoint these men. The necessity existed for their appointment (which necessity he determined, of course, at his peril). The men being appointed, they must be paid. If Lloyd was to get them he must pay them himself. He did get them, and he did pay them. Therefore Lloyd had to pay this money to obtain this necessary service. It is a case of money paid out by one for the benefit of another.
The only question left is whether it was so paid at the request of the other, express or implied. Of course it was not at the express request of the commissioners. Was the request implied?
It was said in 4 Wait’s Actions and Defenses, page 453, as follows: “Iu order to entitle a person to recover money paid for another, a request, express or implied, must be established, or an express promise to pay it, and it may be said that, in all cases where there is a legal obligation on the part of the person paying to pay the money, the primary obligation resting upon the person for whose benefit it was paid, the law implies a request and a consequent promise that will uphold an action to recover it back.” (See also cases cited.)
We quote the following from Bailey v. Bussing, 28 Conn. 461: “Let us look at some of the cases of assumpsit for money paid, and the principle settled by them. Generally it is sufficient if the money is paid for a reasonable cause, and not officiously. (Brown v. Hodgson, 4 Taunt. 189; Skillin v. Merrill, 16 Mass. 40; Jefferys v. Gurr, 2 Barn. & Adol. 833; Pownal v. Ferrand, 6 Barn. & C. 439; Exall v. Pattridge, 8 Term. Rep. 308; Touissant v. Martinnant, 2 Term. Rep. 100.) So where it has been paid to relieve a neighbor’s goods from legal distraint in his absence (Jenkins v. Tucker, 1 H. Black. 90) for there was a legal duty resting on the defendant. So to defray the expenses of his wife’s funeral, for there was a like duty. So to reimburse the expenses of bail for pursuing the principal and bringing him back and surrendering him into court. (Fisher v. Fallows, 5 Esp. 171.) So for getting the defendant’s goods free, which had been distrained by the landlord for the defendant’s debt, they being at the time on the tenant’s premises. (Exall v. Pattridge, supra.) Or for money paid to indemnify the owner for the loss of his goods, which the plaintiff, an auctioneer, had, by mistake, delivered to the defendant, who had appropriated them to his own use (Brown v. Hodgson, supra); though of this case Lord Ellenborough, in Sills v. Laing, 4 Camp. 81, said that he thought the action should have been special, but the right of action he did not question. So where money has been paid by a surety, or by one of several joint debtors. (1 Stephens’ Law of Nisi Prius, 324, 336.) So where one has accepted for honor a protested bill and paid it. In Pownal v. Ferrand, supra, Tenderton, C. J., says: ‘The plaintiff is entitled to recover in assumpsit, upon the general principle that one man who is compelled to pay money which another is bound by law to pay is entitled to be reimbursed by the latter’; and Lord Loughborough in Jenkins v. Tucker, supra, remarked that there are many eases of the sort (the funeral expenses of another’s wife in his absence), for a person having paid money which another was under a legal obligation to pay, though without his knowledge or consent, may maintain an action to recover back the money so paid. The views of Chitty, in his treatise on Contracts, page 469, and of Greenleaf, in his treatise on Evidence, volume 2, section 108, are in harmony with this principle, that where the plaintiff shows that, either by compulsion of law, or to relieve himself from liability, or to save himself from damage, he has paid money, not officiously, which the defendant ought to have paid, a count in assumpsit for money paid will be supported.” (See also Pomeroy’s Remedies and Remedial Bights, sec. 512.)
We think that there was a legal obligation upon Lloyd to pay Bichards and Knight. There was a legal obligation on him to keep the jail and the prisoners. It took men to do this, and it took money to pay the men. Lloyd paid the money on his legal obligation to keep the jail and the prisoners. Therefore, there was the legal obligation to pay his employees. Then, having so paid them on such legal obligation so to do, he can recover from the party, to wit, the county, for whose benefit he paid the money. For the ultimate liability was upon the county to pay these expenses by reason of the necessity for the services, and the authority to incur the expenses therefor.
We are therefore of opinion that the judgment of the district court should be affirmed, and it is so ordered.
Affirmed.
Hunt, J., concurs.
The chief justice having determined this case as district judge, does not participate in this decision.
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Hunt, J.
— The appellant makes two points: 1. That the evidence was insufficient to sustain the verdict of the jury; and 2. Misconduct of the jury. Upon the first point, after reading the testimony of the many witnesses produced upon the trial, the truth of the admission of counsel for the appellant is confirmed, that there was a substantial conflict in the evidence upon the material issues in the case. The verdict is fully supported by the evidence. In such a case, by the well-established precedents of this court, the verdict of the jury, where it has been reviewed by the court below, in determining the credit to be given to the witnesses, will not be disturbed.
Upon the ground of misconduct of the jury, the affidavits show that by permission of the court, before the arguments of counsel, the jury were allowed to visit the irrigation ditch in question, and, for the purpose of viewing the ground, were gone the better part of two days. While the jury were on their way to view the premises, in charge of the undersheriff, Thomas 3T. Ward, and while they were at the town of Drum-mond, several jurors were invited by the plaintiff, William C. Bradshaw, to drink or smoke with him. The facts and circumstances are set forth in the affidavit of the undersheriff', who had charge of the jury, and who swears as follows:
“ That it was agreed between the parties to said suit that each should pay one-half of the costs and expenses of such visit to the said premises, and affiant was instructed by the attorneys of the respective parties that all the expenses of transportation, food, and entertainment would be so paid, and this affiant did collect such costs and expenses in equal proportions from the plaintiff and defendant; that while affiant, with the said jury and others, was at the town of Drummond waiting for the'train to convey them to Philipsburg, affiant was invited by W. C. Bradshaw, the plaintiff, to take a drink with him; that they went to the saloon of Samuel Ritchie, and all the persons in said saloon at that time were also asked by Bradshaw to drink; that among the number so invited were some of the said jurors, but the names of whom and the number thereof affiant does not now remember and does not know; that the defendant, L. C. Degenhart, and some of his witnesses were among the number; that, altogether, about twenty-five persons were present and were treated at the same time by the said Bradshaw; that there was a general invitation by Bradshaw to all persons present to drink, and no special invitation was given by said Bradshaw to the jury or any particular jurymen; that nothing was said or done by the said Bradshaw for the purpose of influencing the verdict of the jury at the time of said treat; that by agreement of the attorneys of the respective parties the said Degenhart and Bradshaw were, by an order of the court, permitted and authorized to accompany affiant and the jury to view the said premises, and, except when viewing said premises, the jury were, by agreement of the parties and the instruction of the court, permitted to separate, and were not - kept together or under control of affiant.”
The plaintiff, Bradshaw, also filed an affidavit in which he corroborates Ward, and says that, by permission of the court, he and the defendant accompanied the jury. That by agreement they were permitted to separate, and " thát while the parties, the officer in charge of the jury, the jurors, and many of the persons who had been witnesses in the trial of said cause, and other persons, were at the town of Drummond awaiting the departure of the train for Philipsburg, this affi-ant did invite the officer in charge of said jury to take a drink with him; that the said officer and some of the jury also joined them; that the defendant, L. C. Degenhart, and some of his witnesses, as well as other persons, were invited by affiant, and all, to the number of about twenty-five persons, were treated to liquor or cigars at affiant’s expense; that all of said jurors did not participate in said treat, but affiant believes that two of them did join, to wit, Beacock and McMahon; that nothing was said or done by this affiant for the purpose of influencing said jurors in their verdict, and affiant believes, and so states, that no juryman was influenced in his verdict by reason of said treat at affiant’s expense; that affiant is informed and believes that jurors E. Girard, Joseph Richards, P. C. Patterson, F. ~W. Dunton, Thos. Blakeley, and Tobias Schurtz, James Beaton, Lars Beck, and Peter Johnson, and Ed Newman were not present, and did not participate in said treat.”
Affidavits were filed by jurors Beaton, Dunton, Newman, and Beck, to the effect that they were not present, did not drink with, nor were they, or any of them, treated by the said Bradshaw at the time mentioned. The jurors Dunton and McMahon swore that the jurors Patterson, Schurtz, Johnson, Girard, Richards, and Blakely were not present and did not drink with or at the expense of plaintiff, Bradshaw. John McMahon, a juror, by affidavit admits that he took a cigar at the expense of plaintiff, Bradshaw.
Beacock was the one juror who evidently did take a drink.
The mere fact that the jurors took the refreshment is, by itself, not enough to vitiate their verdict. (Territory v. Hart, 7 Mont. 489; Territory v. Burgess, 8 Mont. 57.)
The inquiry in this case involves the further element, however, of whether the verdict must be set aside because the jurors respectively smoked and drank at the expense of the successful party.
The rule adopted by many courts seems to be, that “ where a juror has been treated, fed, or entertained by the successful party, or at his expense, a new trial will in nearly all cases be grauted,” upon grounds of public policy and without regard to any investigation into whether the Verdict was right or wrong. (Thompson and Merriam on Juries, § 372, and cases cited.)
Thompson on Trials, section 2566, qualifiedly approves the general rule, by stating that the circumstance that the drink was furnished at the expense of the prevailing party or his attorney “will turn the scale against the verdict, unless it is shown that it was not intended to influence his action in the cause, and had no such influence on his mind.” To sustain the rule without the qualification stated, the author cites the learned opinion of Justice Garber, of Nevada, in Sacramento etc. Co. v. Showers, 6 Nev. 291, where it was decided, in 1871, that because jurors drank liquor at the expense of the prevailing party during a trial, either by design or inadvertence, in the presence or out of the presence of the bailiff a verdict must be set aside.
To uphold the rule as limited, the author relies upon the case of Railroad Co. v. Porter, 32 Ohio St. 328, decided in 1877, where the court, alter reviewing the earlier decisions, holds that “the mere fact of treating jurors by a party during the progress of a trial, so far evinces a purpose to influence them that, unexplained, it is held to be a ground for vacating a verdict rendered in his favor.”
Under the rule as limited, it appears, therefore, that the burden of explaining that the treating was not done with the design of influencing the jurors is upon the party who paid for the refreshment.
We approve of the limitation, and have no hesitation in establishing the practice that whenever a juror has been guilty of any such impropriety as to accept, during the progress of a case, liquor or tobacco, or any other such favors at the expense of a litigant to the suit on trial, or his attorneys, the burden of proof is upon the prevailing party to satisfy the court that “it can be safely assumed” the mind of the juror was not improperly influenced, and that the party’s conduct in no way operated upon him to corrupt his verdict. Indeed, we are inclined to hold that the rule without the limitation is sound, and that if a juror accepts a treat from a party to a suit without the knowledge or acquiescence of the opposite party, and no opportunity is given the opponent to bring the matter to the court’s or judge’s notice until the judge has charged the jury, or until after verdict is rendered, such misconduct on the part of a juror, when made the ground for a new trial, is enough to require the court to set aside a verdict upon the ground of public policy, and the necessity of the honest and impartial administration of justice.
But the case before us is not quite like any cited by either counsel, and is not to be wholly governed by the applications of any of the decisions referred to.
Here the jury, bailiff, and the 'parties were waiting for a train at a small town. The plaintiff, after asking tifie bailiff to drink, extended his invitation to all others present, including two jurors, the defendant, witnesses who were there and others who happened to be in the saloon. There is nothing tending to prove that the plaintiff sought the jurors or intended in any manner to influence any one who was present. The casual manner in which the treating was done negatives the idea of improper motive. Not a word was said about the case, and it does not even appear that the plaintiff had any conversation at all with the jurors.
Nevertheless, if the defendant had not been present and thus known of the conduct of the jurors, we should be inclined, as above stated, to follow the general rule that the mere fact that the jurors drank or smoked at plaintiff’s expense would, in the fear of “possible improper motives,” demand that the verdict be set aside. At least it would take a very strong showing to sustain the verdict of a jury in such a case.
But where a defendant himself so far forgets the proprieties of the relation which exists between a jury with a ease on trial before them and a party to such trial as to not only drink with them but does so at the plaintiff’s expense, we think he contributes to the misconduct of the jurors and of the plaintiff, and stands upon about the same footing, provided he makes no complaint before the court charges the jury, and in no manner seeks to have the error cured.
The learned counsel for appellant says that it was a very trying situation for the defendant, and that most men under like circumstances would have accepted plaintiff’s hospitalities. We are not prepared to admit this contention, but assuming it is a correct observation of human nature, still, if, despite his better convictions, by moral weakness, or by intensity of his zeal to curry favor with the jurors, he was led into such conduct, his duty was plainly to lay the matter before his counsel to the end that the court might act in the premises. He was willing at the time to take the refreshment and speculate upon the chances of a verdict, and, now that he has lost, we are of the opinion he cannot plead the embarrassments of the occasion as sufficient excuse to relieve himself of an unfavorable decision.
By his knowledge of and active part in the conduct of the jurors, and by his silence when the matter might have been excepted to and guarded against, he must be held to have waived the point. (Flesher v. Hale, 22 W. Va. 44; Davis v. Allen, 11 Pick. 468; Thompson on Trials, § 2725.)
The trial judge in the exercise of his judicial discretion and sitting as a chancellor adopted the verdict which was only advisory, and made special findings in plaintiff’s favor. We therefore decline to hold that the exercise of that discretion in sustaining the verdict was unwise; and, in the absence of a showing of misconduct of the jury, which did or could, under all the circumstances, have affected the rights of the defendant, public policy alone does not require that the case be remanded for a new trial.
The order denying the motion for a new trial is affirmed.
Affirmed.
PembertoN, C. J., and De Witt, J., concur.
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Per Curiam.
— Eespondent moves the dismissal of this appeal, because the notice of appeal was not served on respondent’s attorney of record in the action, but instead was served on respondent personally.
Section 492 of the Code of Civil Procedure provides that: “ In all cases where the party has an attorney in the action or proceeding the service of papers, when required, shall be upon the attorney instead of the party, except of subpoenas, writs, and other process issued in the suit, and of papers to bring him into contempt.”
But as to service of notice of appeal there is a special provision of statute to the effect that the notice shall be served “on the adverse party or his attorney.” (Code Civ. Proc., sec. 422.)
A familiar rule of construction is, that, when a general and particular provision of statute are inconsistent, the particular provision will prevail, and this rule of construction is incorporated in the Code of Civil Procedure by the provisions of section 631.
Therefore, in our judgment, the particular provision of section 422, relating especially to the service of the notice of appeal, and providing that service thereof may be made on the adverse party personally, or on bis attorney, would make the service in this case of notice of appeal on respondent sufficient." Motion to dismiss is therefore denied.
All concurred.
|
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De Witt, J.
— We are of opinion, from the examination of the pleadings and evidence and the record, that the court correctly instructed the jury, on the trial of the case, that, according as they were satisfied by the evidence, they should find either for the plaintiff for one hundred dollars or for defendant for his costs.
The question presented is whether the court erred in refusing to receive the first verdict. Our statute provides as follows: “ If the verdict be informal or insufficient in not covering the whole issue or issues submitted, or in any particular, the verdict may be corrected by the jury under the advice of the court, or the jury may be again sent out.” (Code Civ. Proc., § 271.) “When a verdict is rendered and recorded, and the jury discharged, the jury is functus-officio. Prior to that time the verdict is in the control of the jury in some respects. After those events the province of the jury is exhausted.” (In re Thompson, 9 Mont. 381.) In many respects the jury have control of their verdict until it is recorded. (Walters v. Junkins, 16 Serg. & R. 414; 16 Am. Dec. 585; Snell v. Bangor Steam Nav. Co., 30 Me. 337; Root v. Sherwood, 6 Johns. 67; 5 Am. Dec. 191; Burk v. Commonwealth, 5 J. J. Marsh. 675.) But in the case at bar the question was not the desire of the jury to hold control over or to alter their verdict before it was recorded. They did not want to alter it. In fact one juror said to the court that he thought they could not be able to agree upon any change in the verdict as originally offered. Therefore the matter of the right of the jury to alter their verdict before recording is not here the question.
Without a statute similar to ours above cited it has been held that an informal verdict may be corrected. (Cases last cited; and, also, Cook v. State, 26 Ga. 593; State v. Waterman, 1 Nev. 551; Osgood v. McConnell, 32 Ill. 74; Hadley v. Heywood, 121 Mass. 236; Coffee v. Groover, 20 Fla. 64; Little v. Larrabee, 2 Greenl. 37; 11 Am. Dec. 43; Perkins v. Wilson, 3 Cal. 137.) In fact, our statute is to some extent rather a declaration of existing principles than the introduction of any wholly new principles or doctrine.
While the verdict may be amended in form, yet it is held that it cannot be altered or changed in substance. (McConnell v. Linton, supra; Little v. Larrabee, supra; and Perkins v. Wilson, supra.) Our statute provides that the jury, under the advice of the court, may correct their verdict, or may be again sent out, under certain conditions. Those conditions are, if the verdict proffered is informal, or insufficient in not covering the whole issue submitted, or in any particular. The verdict in the case at bar was certainly not sustainable under the law and facts if it had been attacked on motion for new trial. But the verdict was not informal. It was perfectly formal and regular. Its intention was unmistakable. No one could conjure up a doubt as to what it intended, The jury plainly intended to give the plaintiff fifty dollars. No language could have expressed this intent more clearly. Nor was the verdict insufficient in not covering the issue presented. The only trouble was that, in the opinion of the court, it wrongly decided the issue. The issue was a debt from defendant to plaintiff. The jury found the debt and the amount. It is true that, if they found the debt at all, they ought, under the facts and the law, to have found it to be one hundred dollars. The verdict was an erroneous one, and was doubtless a compromise, but it was not what the statute contemplated as an insufficient verdict. It was not insufficient in neglecting to find upon a matter that had been presented to the jury. Illustrations of insufficient verdicts may be noted in Hadley v. Heywood, supra, and Perkins v. Wilson, supra.
The fact is that the court refused to receive the verdict, not because it was insufficient or informal, but the real ground of the refusal was the insufficiency of evidence to justify the verdict, and that it was against the law. But this is a ground for a motion for a new trial. (Code Civ. Proc., § 296, subd. 6.) A motion for a new trial is a matter of some formality. A statement is prepared and carefully settled, and the case is usually heard by the court with both sides n represented by counsel, and, if either party is dissatisfied, an appeal is taken to the supreme court upon the record so made up. But the court, in the case at bar, in refusing to receive the verdict, acted upon precisely the same ground which is one of the principal reasons for granting a motion for a new trial. It is our opinion that a question of so serious an import as setting aside a verdict because the evidence was insufficient to sustain it, or that it was against the law, the code intended should be carefully heard and deliberately determined by the district court on a motion for a new trial, and not by the simple act of refusing to receive a verdict. In this view, the provisions of section 271 of the Code of Civil Procedure still have a meaning, and, it appears to us, a very clear one. The idea is this: That, lest a party should be unreasonably put to the labor of making a motion for a new trial by reason of a clerical error or informality having occurred in the verdict, or because the jury inadvertently omitted to find upon an issue presented, then, as a remedy against such accidents, we have the provisions of section 271, allowing such informalities to be corrected before they had gone too far. The intention of the statute is well expressed in an old and leading case, which is still often quoted. We cite therefrom as follows: “The questions are whether the court can permit the verdict so to be amended or altered as that it may stand a verdict in favor of the tenant,. and, if not, then what is the proper course to be pursued? The decision of these questions depending on precedents, we have examined the authorities relating to the subject, and will now state the result. There are two classes of cases to be found in the books respecting erroneous or defective verdicts. The first class contains those cases in which the incorrectness or defectiveness of the verdict or error in the record of the judgment consists in something merely formal, and which has no connection with the merits of the cause; where the amendment, when made, in no respect impairs or changes the rights of the parties, but may only prevent a disturbance of the proceedings by writ of error, or, by correcting clerical mistakes, render the record consistent, and the verdict pursuant to the issue. Of this description are the following cases: 1 Salk. 47, 53; Cro. Car. 144, 338; Cro. Eliz. 112, 677; Cro. Jac. 239; 1 Ld. Raym. 335; 2 Strange, 1197; 4 Coke, 52; Bulst. 181; Het. 52; and numerous others which it is unnecessary to cite.” (Little v. Larrabee, supra.)
As is indicated in the views expressed in the Maine case, above quoted, and as we believe is held by the weight of authorities, such a practice as that permitted by the provisions of section 271 is to prevent irregular, informal, and insufficient verdicts from being received and recorded, to the end that parties may not be required to move for a new trial or to appeal upon grounds which were never within the contemplation of the jury in finding the verdict. It is true that there are cases — some among those cited above — where courts have been sustained in refusing to receive verdicts where the facts came very close to being such as should have been reviewed only on a motion for new trial; and, indeed, in the case at bar, we confess a reluctance to reverse the judgment. The case was correctly tried in all respects save this one. But we feel that we must reverse the judgment, or otherwise we should tend to establish the rule that the district court may refuse to receive a verdict whenever the judge considers that such verdict, if received, should be set aside on motion for new trial. "We think that such practice is not intended by the code, for, if it were, the ¡provisions for motions for new trials would not have been framed as they are. The judgment is reversed, and the case remanded for new trial.
Reversed.
Pemberton, C. J., aijd Hunt, J., concur.
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] |
MB. JUSTICE' BEYNOLDS
delivered the opinion of the court.
On the 14th of September, 1916, George D. Skarpas was killed upon the track of the defendant company at or near Vendóme, Montana. Peter Kamboris was afterward appointed administrator of the estate of the deceased, and brought this action to recover damages because of the death. Verdict was rendered by the jury in favor of plaintiff for the sum of $10,000. Motion for new trial was made and overruled. Defendant has appealed from the judgment and from the order overruling the motion.
The appeals present three questions: (1) Was defendant guilty of negligence proximately causing the injury? (2) Was deceased guilty of contributory negligence barring recovery? (3) Was there error in the rulings of the court relative to questions involving the correct measure of damages?
The evidence is in direct conflict as to whether or not de fendant was guilty of negligence. Deceased was an employee of defendant companyj and was engaged in shoveling cinders from off a sidetrack at or near Vendóme, when a train approached from the east and in his rear, striking him and causing injuries resulting in his death about nine hours later. The train was a work train, consisting of engine, flat car, two water-tank cars and caboose, which cars were being pushed in front of the engine. The evidence in behalf of plaintiff was substantial, showing that no warning of the approach of the train was given, either by bell or whistle, and that there was not any person upon the front end of the train to guard against danger. As such circumstances, if they existed, constituted negligence, and as the jury decided in favor of plaintiff’s contention upon this feature of the case, its finding must stand.
In a case of this kind, the contributory negligence of the employee does not bar recovery, but if there was contributory negligence, it only diminishes the damages in proportion to the amount of negligence attributable to the employee. This is true whether the action was brought under the state statute (Chap. 29, Session Laws of 1911) or the federal Employers’ Liability Act (35 Stats, at Large, 65 [U. S. Comp. Stats., secs. 8657-8665] ; 8 Fed. Stats. Ann., 2d ed., 1208, 1339, 1352), as the provision in both Acts to this effect is the same. Therefore, even though deceased may have been guilty of contributory negligence, yet such negligence does not bar the recovery, but is a fact to be taken into consideration by the jury in apportioning the damages.
All through the trial it was the theory of defendant that at the time of the injury Skarpas and the defendant company were both engaged in interstate commerce, and that under such circumstances the federal Act entirely supersedes the state Act as to the subject matter involved. This is urged as an important matter, for there is a question whether or not the measure of damages under the state statute is the same as under the federal Act, upon which question, however, this court does not at this time express an opinion. Even though there may be a difference in the two rules for the determination of the damages, yet in this particular ease defendant is not in a position to raise that question in this court. Upon re- quest of plaintiff, the court gave the jury the following instruction: “You are instructed that if you find for the plaintiff you should award him: (1) Such an amount as will be reasonable compensation for any pain or suffering which deceased endured in consequence of his injury; and (2) such sum as will be a reasonable equivalent for any loss the deceased may have sustained on account of his diminished capacity to labor or earn money, if his capacity in that regard has been reduced on account of his injuries.” Defendant did not offer any objection to the giving of this instruction. It has been held many times by this court that appellant cannot complain of any instruction to which he made no objection, and, not having objected to this instruction, defendant cannot now complain of it, even though it was erroneous, nor of a verdict ren dered by the jury within the scope of the instruction. Based upon this instruction, the verdict was clearly within the evidence, and therefore we cannot say that it was excessive.
Rehearing denied January 30, 1922.
Defendant offered an instruction to the effect that plaintiff could not recover for any loss except the pecuniary loss suffered by the mother and sisters. Such offered instruction was inconsistent with the former instruction given without objection, and therefore the court was justified in refusing it.
It appearing that no error was committed by the trial court of which defendant can now complain, it is ordered that the judgment and order overruling motion for new trial be affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.
|
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PembertoN, C. J.
— The defendant was tried in the district court in Madison county, under an information charging him with the crime of grand larceny, and acquitted. At the trial it appears the evidence tended to show that the defendant was guilty of grand larceny as a bailee, if guilty at all. After the acquittal of defendant the county attorney filed an information against him charging him with the crime of grand larceny as a bailee. He was tried for the alleged stealing of money belonging to one Sarah McGary. He is charged with stealing the same money, as bailee, in the second information. Upon the filing of the second information the defendant pleaded not guilty, and also» filed his special plea of former acquittal in bar. The state demurred to the plea of former acquittal. The demurrer was overruled, and the court ordered the defendant discharged. From this action of the court the state appeals.
In this case no brief has been filed by either party; no oral argument has been made; our attention has not been directed to any error of the court below, or any authority cited, for any purpose, by counsel.
In Territory of Montana v. Mooney, 8 Mont. 151, the court says: “The court has not had the benefit of brief or oral argument from either side; and we here desire to express our disapproval of the practice of appealing criminal cases to this court, and then neglecting to comply with the rule which requires a statement of points and authorities relied on for appellant. Much labor and time will be saved to the court by observing this rule.”
In Territory of Montana v. Stanton, 8 Mont. 157, the court says: “The appeal is taken by the appellant from the judgment and from an order denying a motion for a new trial. There is no brief filed on either side. I have carefully examined the record in the case, and find no error; and I do not wish to establish a precedent for the future guidance of this court, or one to be overruled in the future, where the attention of the court is not called to any error, or to any authority. For this reason the judgment and order appealed from will be affirmed without further reasons.”
In Territory of Montana v. Roberts, 9 Mont. 12, the court says: “ The appellant was convicted of the crime of murder in the first degree, and this appeal has been taken from the judgment of the court below and the order overruling the motion for new trial. No briefs have been filed, and no arguments have been made, in this action, and we would be justified by many precedents in affirming the judgment without any examination of the transcript. This court has expressed its disapproval of similar conduct upon the part of counsel for appellants; and, while we do not desire to act as censors, we hope that this is the last time that we shall be called upon to comment on the omission of attorneys to perform their important duties. The gravity of the offense demands a careful investigation, although we are embarrassed by our ignorance of the real grounds for taking this appeal.”
In the case at bar there is no grave question of human life or liberty involved, as in Territory of Montana v. Roberts, supra, to demand of this court an investigation of the important legal question presented by the record. Under the circumstances we do not feel that it is our duty to do so. We feel justified in concluding that the appellant, by failing to present and prosecute its appeal in accordance with the rules of practice of this court, intends to abandon the case, and for this reason alone the order and judgment appealed from will be affirmed-
Affirmed.
De Witt and Hunt, JJ., concur.
|
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] |
PembertON, C. J.
— This is an action for damages for personal injuries, instituted in the court below by the plaintiffs, who are the widow and minor children of Joseph Soyer, deceased.
The complaint alleges that the defendant, a corporation, was on the thirtieth day of October, 1891, the owner of and engaged in the construction of certain water mains in the city of Great Falls; that the said Joseph Soyer was employed by said company as a common day laborer in excavating and constructing the water mains and ditches of said company; that on account of the character of the ground through and in which said water mains and ditches were being constructed it was the duty of said company to prop or crib said ditches with limbers, to prevent the same from caving in on the said Soyer, who was engaged in digging in and constructing the same; that said Soyer was wholly ignorant of the character and condition of the ground; that said company knew the character and condition thereof, or could have known the same by the exercise of due care and prudence; that said company was guilty of negligence in not properly cribbing and supporting said ditches with timbers to prevent the same from caving; that by reason of such negligence on the part of said company the said ditch caved, and the side thereof fell upon and killed the said Soyer; that said Soyer was without fault or negli- genee in the premises; that said plaintiffs were wholly dependent upon said Soyer for support, education, etc., he being the husband of plaintiff Helena Soyer, and the father of the other plaintiffs, who are minors. The complaint asks for damages in the sum of ten thousand dollars. The answer denies all the material allegations of the complaint.
At the conclusion of plaintiffs’ testimony defendant moved the court for a nonsuit, upon the principal ground, seemingly, that “the evidence fails to show that there was at any time during the prosecution of said work any necessity for propping up or bracing the walls of said ditch.” The court sustained this motion, and entered judgment in favor of defendant for costs, and from this judgment this appeal is prosecuted.
It appears from the record that said ditch, in which Soyer was working for the company,-did cave upon and kill him, as alleged in the complaint. The plaintiffs sought to show that the character and condition of the soil or ground through which the ditch was being run were such that the cave occurred because the sides and walls thereof were not propped or braced, as alleged in the complaint. The court refused to permit them to prove that the walls were not propped or braced until they had first shown the necessity therefor. This action of the court is assigned as error. How could plaintiffs better show the apparent necessity for propping and bracing the ditch than by showing that it caved without such support? It was competent to show the character and condition of the soil or ground through which the ditch ran, in order that the court or jury might determine whether propping and bracing were necessary to the safety of the persons working therein, and to determine whether the company was guilty of negligence in failing to prop and brace the same, as alleged in the complaint.
We think it was competent to show fully the condition and character of the ground through which the ditch ran; the knowledge of the company, or the means of knowledge of the company, of these conditions and character of the ground; and its failure to prop and brace the ditch, if it was necessary so to do — in order to determine whether or not the company was guilty of negligence, as alleged in the complaint. We think the action of the court in this regard was clearly error.
The court refused to permit the plaintiffs to prove the age of Soyer at the time of his death. Upon the age of the deceased largely depended the question of the measure of damages iu this case. “The measure of damages is the amount which the deceased would probably have earned during his life for their [plaintiffs’] benefit, taking into consideration his age, ability, and disposition to work, and his habits of living, and expenditures.” (Pennsylvania Tel. Co. v. Varnau (Pa., Oct. 1, 1888), 15 Atl. Rep. 624; Schaub v. Hannibal etc. R. R. Co., 106 Mo. 74; Castello v. Landwehr, 28 Wis. 522.) This holding of the court was manifestly error.
We think the court also erred in excluding the evidence of plaintiffs offered to show that the deceased was the husband of plaintiff Helena Soyer, and the father of the other plaintiffs, as alleged in the complaint. The evidence of persons who had known deceased and Helena Soyer from their infancy, and had known their children from their birth, who were present in church when their marriage was announced, who knew that they lived and cohabited together as man and wife, that they always treated and acted towards each other as man and wife, who always declared and acknowledged that relation to exist between them, and who acknowledged and treated their children as parents usually do their offspring, certainly tends, in our opinion, to establish these relations. This evidence was sufficient at least to establish a prima facie case upon the question as to the relation deceased sustained to the plaintiffs in his lifetime. (See Code Civ. Proc., § 642, subd. 4.)
In determining the question of nonsuit for want of evidence to support the allegations of the complaint and authorize a recovery the law regards the issues proved which the evidence tends to prove. The evidence offered by plaintiffs and excluded by the court in this case clearly tended to prove the issues tendered in the complaint, and should have been admitted.
There are assignments of error in the record of less importance than these already noted, but we do not consider it necessary to treat them in detail.
The judgment appealed from will be reversed, and the cause remanded for new trial.
Reversed.
Harwood and De Witt, JJ., concur.
|
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De Witt, J.
— Upon this appeal defendant’s counsel argue that the information does not state facts sufficient to constitute an offense. The defects, which he urges exist in the information, are such as appear upon the face thereof, if at all.
It was said in Territory v. Carland, 6 Mont. 18, as follows: “Our criminal law provides as follows: ‘A defendant who has failed to demur to an indictment for any of the defects appearing upon its face shall be deemed to have waived the same, except the defects that the court has no jurisdiction over the same, or that the indictment does not state facts sufficient to constitute an offense; these he may take advantage of on the trial, or on motion to arrest judgment.’ (Criminal Practice Act, § 207.) .... The statute having provided the method of procedure to take advantage of such a defect, that method must be pursued. The objection that the facts stated in the indictment do not constitute a public offense cannot be presented in this court for the first time.”
That decision is decisive of the same point in this case.
The ruling in the Carland case, in upholding the statute cited, does not hold that a judgment will be sustained upon an information which does not state an offense; nor that such judgment will be sustained upon an information, where it appears that the court had no jurisdiction of the offense. The decision simply recognized that the statute provides, as it has a right to do, in what court these objections should be made, and that they must be first made in the district court rather than in the supreme court. Appeals 'are a matter of statutory regulation. (Territory v. Hanna, 5 Mont. 247; State v. Gibbs, 10 Mont. 210; State v. Northrop, 13 Mont. 534.)
The matter of the information, therefore, being out of consideration, the appellant still contends that the verdict does not sustain the judgment, because the verdict does not find the defendant guilty of any offense known to the law.
Without deciding whether, as a matter of practice, this verdict is before us for consideration (as the question is not raised), we think that the verdict does find an offense. The jury found the defendant guilty of uttering a forged check, in manner and form as charged in the information. To utter a forged check is one of the methods of committing forgery under our statute. (Criminal Practice Act, § 96.)
In California, under a similar statute, the supreme court said, in the case of State v. Ah Woo, 28 Cal. 206, as follows: “Nor is the objection that the defendant could not be found guilty of forgery, because the charge was for ‘ uttering and passing a forged instrument,’ tenable. By the statute the uttering and passing, as well as the making, etc., of a forged instrument, is declared to be forgery.” (See, also, People v. Tomlinson, 35 Cal. 503.)
As to the form of this verdict, we observe that Mr. Bishop says, in the first volume of his Criminal Procedure, section 1005 a, that: “The verdict, being ‘the finding of lay people,’ need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate, and all fair intend-ments will be made to support it.”
We think that it may be said of this verdict as was remarked in the case of State v. Ryan, 13 Minn. 374: “ As to the ver- diet, its form is not to be approved; but there is no set form of words in which a verdict is required to be rendered, and, therefore, the only rational general rule that can be adopted by which to measure its sufficiency is, Does it show clearly, and without any doubt, the intention of the jury, and their finding on the issues presented to them? If it does it cannot be declared bad without sacrificing substance and justice to form. No error that is not a violation of some positive rule of law, or which may not possibly prejudice the defendant, can be a ground for reversal on appeal. I think the language of the verdict leaves no doubt as to its meaning, or as to the intention of the jury. Its informality does not tend to render it obscure or ambiguous, or to prejudice the rights of the defendant, and therefore does not affect the judgment.”
We also note the following language by Dixon, C. J., in Benedict v. State, 14 Wis. 464: “The verdict is sufficient in form. It cannot be that the law is so excessively exact in such matters that it makes a particular word so indispensable that another equally expressive cannot be used in its stead. The word ‘find’ is more commonly used, but the word ‘agree,’ where employed with reference to the verdict of the jury, particularly in criminal cases, means precisely the same thing. Both signify that the jury, upon consideration of the evidence, have determined that the accused is guilty or not guilty of the crime charged.” (See, also, other cases cited in Bishop on Criminal Procedure, quoted above, and also the recent case of State v. Preston (Idaho), 38 Pac. Rep. 694.)
We are of opinion that the verdict in the case at bar clearly expresses the finding of the jury that the defendant was guilty of forgery committed in one of the ways by which that offense may be committed under our statute, to wit, by uttering a forged check. (Criminal Practice Act, § 96.)
As the case of State v. Hudson, 13 Mont. 112, has been mentioned in the briefs in this case, it may be well to remark, in passing, that in that case the language of the information was not under consideration, nor the manner of charging a forgery committed by uttering, publishing, passing, etc. That case was decided wholly upon the question of jurisdiction.
We are of opinion that the judgment in the case at bar should be affirmed, and it is so ordered.
Affirmed.
Hunt, J., concurs.
|
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Harwood, J.
— The main question of law involved in this case may be stated by the following propositions: Where several individuals, in succession, have, pursuant to the provisions of the laws of this state regarding water rights, appropriated and acquired right to use the waters of a creek for certain beneficial purposes, such as the irrigation of their respective farms, may the first appropriator, or his successor, after subsequent appropriations have been acquired, not only use the waters of the creek by him appropriated for his individual uses, but, in addition, after his individual use has been sufficed, convey the waters of such creek entirely away from its usual channel, and sell the same to the inhabitants of a city for their use, and thereby, without recompense, deprive the subsequent appropriators of the use of the waters of said creek, which they had enjoyed alone with the first appropriator’s former use of it? The answer to this question must be in the negative. The right acquired by an appropriator in and to tlie waters of a natural stream is not ownership of a running volume of the dimensions claimed, like the individual ownership of a chattel, so that it may be transferred corporally and carried away, but the right acquired by the appropriator is the right to use a certain quantity for necessary and beneficial purposes, such as supplying household needs, and the carrying on of some useful industry; and, when such want is supplied, or the use is subserved, all the rest of the creek, and all that returns thereto after such use, is subject to appropriation and use by another for some” beneficial purpose. The same volume of water may, therefore, in its flow down the creek, supply many persons, even though the first appropriator claims the whole volume, and can, at times, or even constantly, use the same for some industrial purpose, because such use does not usually swallow it, but leaves it available to others. But by such an appropriation the first appropriator does not acquire a preemption of the whole creek, so that he, or his successor, may, after enjoying the use of it for some beneficial purpose, convey the creek away and cut off subsequent appropriators. Therefore a subsequent right to use the same water, or so much of it as returns to the creek, and to use the waters of the creek when the first is not using the same, may be acquired. And therefore the trial court proceeded upon an erroneous view or theory of the law governing water rights, and the relation of various appropriations to one another, in holding that plaintiff, or her predecessor, could not acquire by appropriation any right to the use of the waters of said creek arising and flowing therein above defendant’s ditches. It is well understood that a creek in these mountainous regions, flowing a volume of two hundred and fifty inches, would suffice to irrigate more than one small farm; not only so, that there are considerable periods when a farmer does not irrigate his crops, while the water in an adjacent stream, which he is entitled to use, so far as his needs demand, flows on forever, and is subject to the use of others.
It appears that Lymañ settled upon the creek in question in 1864, acquired one hundred and sixty acres of land, and appropriated the waters of said creek to irrigate the same, to which right this defendant company has succeeded. Follow ing the settlement and appropriation by Lyman, for the purpose mentioned, plaintiff’s husband acquired agricultural land, situate upon the banks of said creek, and likewise appropriated the water of said creek to irrigate his land. When the second appropriator came and viewed the situation, even conceding that Lyman had appropriated all, and could use all, of the waters of said creek at times for the irrigation of his land, it was very plain, considering the laws of nature and the purpose for which Lyman was using said water, that there was sufficient opportunity for plaintiff’s husband to irrigate a farm, notwithstanding Lyman’s appropriation. Under these circumstances plaintifi’’s husband acquired a right to the use of said waters subsequent and subject to that of Lyman. But it came to pass, in the course of time, that Lyman sold his land, with his water right appurtenant thereto, to defendant company, and the company appears to have acquired some lands in addition to that owned by Lyman. But, in addition to the irrigation of its land, as successor to the rights of Lyman, the company, about 1889, engaged in the business of supplying the inhabitants of the city of Bozeman with water for their use, and to that end conducted the water of said creek into a reservoir, and conveyed it thence to said city. And defendant company claims the right to so use the. water, based upon Lyman’s appropriation, which was prior to that of plaintiff’s husband. On the same theory the first appropriator of the waters of a creek might use the same sufficiently for his own purposes, and then, instead of letting it go to the next subsequent appropriator, and so on in succession, he might sell the water to some individual who could not acquire any right to it by appropriation, and such purchaser would thereby acquire the water over the subsequent appropriator. For instance, if a creek supplied sufficient to irrigate five farms, and the first, or first and second, appropriators had claimed enough to comprise the whole volume of the creek, instead of allowing the water, after their use, to pass on to the three subsequent appropriators, they might sell it out entirely to a sixth party desiring to use such water; and whereas the farms of the third, fourth, and fifth appropriators had hitherto been sufficiently irrigated, after the first and second had used sufficient of the waters of the creek for their purposes, it turns out that the first and second could sell and convey the water, depriving the third, fourth, and fifth entirely thereof. Under such a theory the early appropriators, whose claims are sufficient to include the volume of a flowing stream, instead of holding a usufructuai'y relation to it, would hold corporeal ownership of it, with power to control and dispose of it very much like a chattel.
It has been held that an appropriator of water may change the use of his appropriation from one purpose to another. (Meagher v. Hardenbrook, 11 Mont. 381, and cases cited.) But it has never been held in this state (nor are we cited to like holding elsewhere) that after an appropriator has used the water sufficiently to answer the purpose of his appropriation, he might take the waters of the stream remaining, which he could not use for the purpose of his appropriation, and sell it to other parties, thereby depriving subsequent appropriators of their right to use the same, but that is what defendant has accomplished in this case. Defendant has not changed the use for which the water in question was first appropriated by Lyman from that of irrigating agricultural lands to mining or operating a mill, or the like, leaving the water, after such use, to go on to subsequent appropriators in succession; but defendant company , has assumed to take the water of said creek, over and above that necessary to irrigate its lands, and sell the same to others who had no claim by appropriation thereto, to wit, to the inhabitants of the city of Bozeman, thereby depriving the next subsequent appropriator entirely of the use of said water. This defendant cannot lawfully do, without acquiring plaintiff’s right therein.
There is a finding of the trial court that plaintiff’s husband, in the summer of 1884, “dug a ditch tapping Lyman creek, of sufficient size and capacity to carry thirty-nine inches of water, measured according to the rule prescribed by statute,” which finding is excepted to as not supported by the evidence. This finding is ambiguous. It may be entirely true and warranted by the evidence under one construction, and erroneous and unwarranted under another, either of which interpretations may be insisted on with about equal emphasis. Plain tiff alleges appropriation of one hundred inches of the water of said creek in 1884, and also alleges in her complaint the construction of a ditch, of certain dimensions stated, whereby she*diverted said water for the various purposes alleged; and according to these allegations said ditch is capable of carrying more than one hundred inches of water. Those allegations are entirely undenied b.y defendant’s answer. This state of facts, thus admitted in the pleadings, may or may not be contradicted by the finding mentioned. That depends on the interpretation given to it. A ditch of the capacity admitted by the pleadings is, of course, “ of sufficient size and capacity to carry thirty-nine inches of water” as found. But if the finding is to be understood as affirming that said ditch is only of sufficient capacity to carry thirty-nine inches of water, the effect of it would be very material, because her appropriation would be limited to the capacity of her ditch or ditches for diversion of said water. Notwithstanding the admissions of the pleadings as to the capacity of plaintiff’s ditch, there was evidence introduced on that subject. Several witnesses were called by plaintiff, describing the ditches whereby plaintiff and her husband, as her predecessor in interest, had diverted the waters of said creek, and their testimony supports the allegations of the complaint on that point, although such evidence was unnecessary. But one witness called by plaintiff stated that op a certain occasion he could only flow thirty-nine inches of water through plaintiff’s ditch. He stated that on that occasion he was employed by defendant company, or its agent, to make such test of the capacity of plaintiff’s ditch, and turned water therein for that purpose. He does not state the dimensions of plaintiff’s ditch, nor did he contradict the allegations of her complaint or her other witnesses on that point, except in so far as his testimony, by implication, contradicts theirs. Moreover, his testimony might be true, and the allegations of the complaint, which were undenied, and the testimony of other witnesses on that point, might also be true; for the ditch, although generally of a capacity sufficient to carry one hundred inches of water, as shown by the dimensions alleged in the complaint, may, from some local defect or lack of repair on the occasion when said witness turned water therein, have only, carried thirty-nine inches. So this witness’s testimony might be true and yet furnish no real or just ground for finding that plaintiffs means of diversion was only of the capacity of thirty-nine inches, if that is to be the construction put upon such finding. At all events, as the record stands, considering the admission of the pleading on that point, we regard the finding unwarranted if construed to mean that plaintiff’s ditch was only of the capacity sufficient to conduct thirty-nine inches.
For the foregoing reasons the judgment should be reversed, and the cause remanded for new trial, and an order of this court will be entered accordingly.
Beversed.
PembertoN, C. J., and De Witt, J., concur.
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] |
Hunt, J.
— It is conceded by counsel for the plaintiff bank that the defendant Brown had a legal right to intervene for the purpose of trying the issue between the plaintiff bank and the defendant Boyce, as to the amount due upon the note at the date of the commencement of the action by the bank against Boyce. But it will be observed by the statement of the facts, that upon the trial of the case the intervenor expressly admitted that the amount alleged to be due in the complaint of plaintiff" bank, less a payment of $1,927.60, allowed as a credit by the bank, was a just debt, and expressly declined to offer proof to sustain the averments of his complaint denying such indebtedness, or to contradict the testimony of the officer of the plaintiff bank. This issue of fact being therefore eliminated from the case, it is necessary to determine whether or not the other facts set forth in the intervenor’s complaint are sufficient to enable him to intervene in the action pending between the plaintiff bank and the defendant Boyce. We think not. The original suit of the plaintiff bank against the defendant Boyce was still pending in the district court, and the original writ of attachment which had been issued iu that case was still in the hands of the sheriff of Silver Bow county, at the time of the second levy of such writ. It further appears that no rights intervened between the first levy and the second. The release or the surrender of the property seized under the first levy at the time of the assignment may have been such an abandonment of a lien by attachment that subsequent attaching creditors could claim prior liens had they instituted proceedings to establish such liens before the seizure by the sheriff under the second levy. But, according to the facts in this case, as they are pleaded, we are of opinion that by the actual taking under the second levy made by the sheriff there was created a valid and sufficient attachment lien in the bank’s favor. If the assignee had claimed the property, or if the defendant Boyce had, by appropriate proceedings, objected to the second taking under the original writ of attachment, different questions would arise. But, in the absence of fraud, we know of no reason which will prevent a second levy by attachment under an outstanding writ upon personal property for a just debt, where such property has once been taken but afterwards surrendered by mistake or otherwise, and where no other rights intervene, and where the legal owner interposes no protest against such second levy. It follows, therefore, from the facts set forth in the complaint of the intervenor, Brown, that after he had confessed the debt of Boyce to the bank, he no longer had an interest in the matter of litigation. He never claimed to be interested in the note; and the value of the goods seized being insufficient to more than satisfy the lien of the bank, which subsequent attachment was good, and prior to his, as intervenor, he cannot be said to have had an interest in the property to be affected by any judgment that might be rendered in the case.
But upon another ground we think that the intervenor is precluded from f obtaining relief. He does not, by his pleading, positively affirm the assignment of Boyce to Porter, because to do so would compel the court to decide that he could only claim under its provisions. The result of this would be that his attachment would fall. Nor does he repudiate the assignment because he pleads no facts sufficient to make it void or fraudulent. True, the plaintiff bank, to justify its second levy, alleges that the assignment was fraudulent and void, in that the claim of one John H. Curtis for $15,000 was not a just debt; but by replication the intervenor denies that the deed of assignment was fraudulent or void as to the plaintiff bank “by reason of any fraudulent provision therein concerning one John H. Curtis, or any other person.” Thus the in-tervenor seeks to force the bank into accepting the provisions of an assignment which he, as a bona fide creditor, expressly declined to accept, yet positively refused to attack. We think a reasonable construction of the complaint of the intervenor is, that by a failure on his part to assail the assignment, he has treated it, for the purposes of his intervention, as honest and fair, and, by such confession, under the rule laid down in the case of Elling v. Kirkpatrick, 6 Mont. 119, he stands in no position to demand an attachment against his debtor, or to intervene in the suit between the plaintiff bank and defendant Boyce.
The allegation of collusion, conspiracy, and fraud between the bank, Boyce, and the sheriff, is a conclusion not sustained by averments in the pleading. The mere fact that the assignee was under the direction and in the employ of the bank is, by itself, not a fraud; nor is there any wrong charged against the sheriff, other than the several seizures and surrenders alleged to be void and irregular; nor are there any facts, other than the acts herein discussed, from which conspiracy or collusion can be legitimately inferred. We think the court properly sustained the objection of the plaintiff bank to the testimony offered, and that the intervenor was justly denied relief.
After judgment, which was entered July 23, 1891, appellants, by motions made to the court, asked that all cost bills, and more particularly the cost bill filed July 21st by the sheriff, be stricken from the record, for the reason that no cost bill was filed by plaintiff bank, or by any other person, within the time provided by law. A motion was also made to retax costs, on the ground that the plaintiff did not deliver to the clerk of the court, within two days after the decision of the court, or at any other time, any memorandum of its costs and necessary disbursements, and to vacate and amend the judgment as to costs taxed against the intervenor upon the same grounds mentioned in the former motion relating to costs, and upon the further ground that the sheriff’s fees were excessive. The motion to retax costs was sustained in part and overruled in part. The motions to strike the memorandum of costs from the records were denied, to which ruling exception was duly taken. Without further discussing the insufficiency of the pleading of the intervenor to gain a standing in the court, or of the form of his denial on information and belief of any greater indebtedness to plaintiff than $35,000, we fail to see how the intervenor can escape payment of costs which he directly caused to be incurred. The reduction in the amount claimed was voluntarily made by the bank, and proved to have been a payment after suit was commenced. In addition to this the intervenor admitted on the trial that Boyce & Co. justly owed plaintiff more than $62,000, and that the property attached was not worth more than $60,000; so that a reduction of $1,927.60, even if made by the instrumentality of the intervention^ could not possibly be of advantage to the inter-venor.
Appellants next contend that plaintiff was obliged to file a memorandum of its costs and sheriff fees as required by section 507 of the Code of Civil Procedure, which is as follows: “The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court, within two days after the verdict or decision of the court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding; which memorandum shall be verified by the oath of the party, or his attorney, stating that the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.”
Respondent argues that it was unnecessary to file the memorandum, under section 508 of the Code of Civil Procedure: “But such memorandum need not include the legal fees or costs of any officer of the court, or any witness fees when an affidavit of such witness’ attendance is required by law to be made.”
Construing these two statutes, it seems clear that the legal fees and costs of any officer of the court need not be verified by the party or his attorney, and need not be included in any memorandum required to be filed by the prevailing party. (Bank v. Neill, 13 Mont. 377.) It is the intention of the statutes that officials of the court shall file and be responsible for their own legal fees and taxable costs; and unless such fees and costs are correctly charged, a penalty may be imposed. A litigant is relieved from including them in his sworn memorandum, and, unless he wishes to assume them as his own, and to incur the risk of vouching for their correctness, the better practice is to omit them. (First Nat. Bank v. Neill, 13 Mont. 377.)
The remaining point is whether a sheriff’s expenditures, such as rent bills, keepers’ fees, gas bills, water rents, fuel bills, and such other disbursements as are often necessarily made in levying attachment writs, are the officers’ legal costs which need not be included in the party’s verified memorandum, or are costs or disbursements which should be so included. The general practice of our courts has been for sheriffs to tax, as part of their costs, their disbursements in levying attachments upon .personal property and safely keeping the same. It would be well nigh impossible oftentimes for an attaching creditor to keep informed of the expenditures of the sheriff, and to know whether his disbursements have been necessarily made. All these duties properly belong to the sheriff, and in their performance his necessary disbursements become legally taxable costs for which he is entitled to be reimbursed. This view is reasonable and based on a fair interpretation of the statute under consideration.
There may be various costs and necessary disbursements frequently incurred by parties in suits of which no record would appear, unless they were included in the verified memorandum required by section 507; and it is such costs which can be recovered by filing the sworn statement contemplated by the statute.
It is proper to note that sections 508 and 509 of the code are taken from the act of February 16, 1877, which was passed after the decision of the supreme court in the case of Orr v. Haskell, 2 Mont. 350.
The district court, in the case at bar, revised and reduced the sheriff’s bills, and ordered a fee of $25 taxed against him for including items to which he was not entitled. This was in strict pursuance of the statutes, and well illustrates the application of the law holding the sheriff responsible for great care in his expenditures.
The judgment is affirmed.
Affirmed.
Pemberton, C. J., and De Witt, J., concur.
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Pee CuRiAM.
— The learned judge of the district court, in deciding this case, filed a written opinion, in which he said, in part, as follows:
“The questions to be determined in this action depend upon facts substantially as follows: The defendant, a married woman, received a probate judge’s deed in 1870 to the town lots in controversy. Soon after, she and her husband mortgaged the same to one Fort. The mortgage was foreclosed, and Fort became the purchaser of the property at sheriff’s sale in 1871. Soon after his purchase of the property he sold it to the plaintiff, who took possession. In 1872 defendant and her husband commenced an action against Fort to set aside the sheriff’s sale, and for restoration of the premises. The Roush-Fort suit lasted a number of years, by reason of appeals to the supreme court of the United States, but was finally decided in favor of the Roushes. Allen, meanwhile, had retained pos session. Shortly after, or before the final determination, defendant’s husband died.” This was in 1887. “The lots were then, in 1891, restored to the defendant under a writ of restitution. Plaintiff sues in ejectment, basing his- title on adverse possession of the premises. During their marriage the Roushes had a child; and, therefore, the husband, if he had survived the defendant, and she had left these lots as a portion of her estate, would have been entitled to curtesy therein.”
The Dower and Curtesy Act of February 11, 1876 (9th Sess. Laws, 63), was not repealed when this action was commenced. (Chadwick v. Tatem, 9 Mont. 367.) The portion of the act as to curtesy seems to be repealed by the Civil Code, section 177, approved February 19, 1895. This repeal is, of course, long after this action was commenced. Quoting again from the opinion of the district court. “Under the above conditions, has the plaintiff acquired title by adverse possession? Section 39 of the Compiled Statutes, which applies, provides that no rights by adverse possession can be acquired against a married woman if her husband was a necessary party to a suit that might have been instituted by her for the assertion to her right to real property. Section 7 of the Codified Statutes of 1872, however, is as follows: ‘When a married woman is a party, her husband shall be joined with her, except that when the action concerns her separate property she may sue alone.’ This statute was the law until Roush’s death in 1887. In order to decide whether Mrs. Roush’s husband would have been a necessary party to any suit she might have instituted against the plaintiff during the period in which he claims his adverse right was acquired it will first be necessary to interpret section 1432 of the Compiled Statutes.” [From the act of January 12, 1865.] “This is as follows: ‘That the property owned by any married woman before her marriage, and that which she may acquire after her marriage by descent, grant, gift, devise, or otherwise, and the increase, use, and profits thereof, shall be exempt from all debts and liabilities of the husbaud, unless for necessary articles procured for the use and benefit of herself and her children under the age of eighteen years; provided, however, that the provisions of this chapter shall extend only to such property as shall be men tioned in a list of the property of such married woman as is on record in the office of the register of deeds of the county in which such married woman resides.’ Was the intention of the legislature in the enactment of this statute in 1865 to bestow upon a married woman, in reference to her duly listed property, a complete status of a feme sole? If it was, then the plaintiff herein must recover. Did the legislature really intend, however, that property of a married woman listed in pursuance of said section be absolutely divested of any control or property right on the part of the husband ? If it was, section 7 of the Codified Statutes of 1872, above quoted, would, of course, apply, and there would have been no necessity for a joinder of her husband in any action concerning these lots which might have been instituted by the defendant. It is to be borne in mind that the deed of these lots to defendant contained no provision that they were to be held to her sole and separate use. The recording of the deed, however, as decided by our supreme court, was a compliance with said section, and freed the lots from the debts and liabilities of the husband, to the extent therein declared. (Montana I. Co. v. Colter, 7 Mont. 541.) At common law the husband had an estate in the realty of his wife during the coverture. He could exercise almost full control of it. In England, particularly within the present century, the court of chancery has gradually formulated an equitable system for the protection of the property rights of a married woman, which has done much to obviate any harshness often incidental to the common-law rule. In the United States, on the other hand, statutory enactments have brought about, in almost all of the states, a similar result. The decisions of the various states of the union of late years, on the status of a married woman owning property rights, depend, as a rule, on statutory enactments. These statutes vary greatly in the different states, and I have been unable to find any decision construing a statute identical in phraseology with section 1432. In many of the states the property of a married woman is declared to be her sole and separate property, upon compliance with statutory requirements. But in almost all of the decisions under these statutes a reluctance is manifested by the courts, if the legislative language is at all doubtful., to ignore the common law, and absolutely annihilate the mutual property relations of husband and wife. Is section 1432 broad enough to admit of the construction that a husband has no right whatsoever in the listed property of his wife? The section nowhere expressly declares this. It only frees such listed property from debts and liabilities of the husband, unless contracted for necessary articles for the wife and minor children. At the time this section 1432 was adopted the legislature also declared that the common law of England, in so far as generally applicable, should also be in force. Furthermore, other enactments by the legislatures of Montana, passed subsequently to said section 1432, would seem to conflict with the theory that it was intended that this section should give to a married woman the same status as & feme sole. The Sole Traders’ Acts of 1874 (8th Sess. Laws, 93), and 1891 (2d State Sess. Laws, 263), The Married Woman’s Act of 1887, the sections of the Compiled Statutes regulating the conveyance, and disposition by will, of her property by a married woman, and particularly the Dower and Curtesy Act of 1876, all indicate the contrary. In the act last referred to (see Acts of 1876, p. 69), section 25 is as follows: ‘ When any man and his wife are seised in her right, and when a married woman is seised to her sole and separate use, free from the control of her husband, of any estate of inheritance and lands, the husband shall, on the death of the wife, hold the lands for his life, as a tenant thereof by the curtesy.’ Clearly, the use of the words ‘are seised in her right’ is a recognition of the estate of the husband in a wife’s realty during coverture, it is noticeable, also, that a distinction is made in this very section 25 between real estate in the wife’s name, without limitation, and that held by her to her sole and separate use, free from the control of her husband. The distinction above mentioned aids in the construction of section 7 of the Codified Statutes of 1872, and strengthens my conclusion that in the use of the words ‘separate property’ it was not in the legislative mind to include listed property; but that by. the term ‘separate property’ was meant property held by a married woman to her sole and separate use, and so secured to her, either by the terms of the deed of conveyance, by marriage settlement, or otherwise. The decision of this court, therefore, is, that the plaintiff gained no adverse title against the defendant during her coverture, and he cannot recover the lots in controversy.”
We are of opinion that the decision of the district court correctly construed the statutes applicable to the contention in the case at bar, and the judgment is therefore affirmed.
Affirmed.
All concur.
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] |
Harwood, J.
— Both parties to this action appeal, and assign certain alleged errors in the adjudication thereof. Those assigned on the part of defendants will be first considered.
The object of the action is to obtain judgment in favor of plaintiff against the Obelisk Mining and Concentrating Company, defendant, upon a demand in the sum of two thousand six hundred and two dollars and seventy-one cents, for building material and machinery alleged to have been purchased from plaintiff, and used by said company in the construction of a certain shaft-house, ore-liouse, office building, and a five- stamp concentrator on the Obelisk mining claim, situate in Jefferson county, Montana, and to foreclose a lien claimed by plaintiff on said improvements to secure payment of the judgment. The defendant Obelisk Mining and Concentrating Company was not the owner of said mining claim, but was lessee thereof from defendants, Hight and Fairfield, who owned the same; and, while working said mining claim as lessee, the said Obelisk Mining and Concentrating Company obtained and used said material and machinery as aforesaid. Plaintiff sought a decree foreclosing its lien claim upon said improvements, with provision for removal of the same from said mining claim by the purchaser, as provided by statute in such cases. (Comp. Stats., div. 5, § 1375.)
The owners and lessors of said mining claim, Hight and Fairfield, appeared in defense, and opposed the granting of the relief demanded by plaintiff. They set up in defense the lease of the said premises executed between themselves and the Obelisk Mining and Concentrating Company, by the terms and conditions of which it was provided that all improvements and machinery placed on said premises by the lessee (with a few exceptions, which do not concern this consideration) were to become the property of the owners as soon as placed on said mine, and remain as part thereof; and by virtue of that provision of the lease and the provisions of the lien law exempting the owner’s interest in leased property from a lien for obligations incurred by a lessee while in possession thereof, the owners contend that no lien could attach to the said buildings and machinery put on said mining claim by the lessee to secure payment for the material used in the erection or equipment thereof.
Appellants Hight and Fairfield are supported by the statute and decisions in their contention, that the owner’s interest and estate in leased property is not subject to be charged with a lien for obligations incurred by the lessee, in and about his operations thereon. Such was the holding, upon careful consideration, in the case of Pelton v. Minah Con. Min. Co., 11 Mont. 281, and Block v. Murray, 12 Mont. 545. In these cases it was sought to fasten a lien on a leased mine to secure payment for labor employed by the lessee in working the same. In the latter case, in addition to claims for labor, there was an item for timber furnished by one of the claimants, and used in working the mine. But in neither case was it sought to foreclose a lien on any building or machinery, or other improvement put on the leased premises by the lessee capable of being removed therefrom, as is sought in the present case. The question involved between the lien claimants and the owners of the mining claim in the present case is widely distinguished from that involved in these cases — as widely distinguished as would be the holding in one case that no lien could be applied in favor of a laborer who stoped ore or dug a well on leased premises, under contract with, and for the use and benefit of, the lessee; and the holding in another case that a contractor and builder who, at the instance of the lessee, furnished the material or labor to construct a building on the same premises, capable of removal therefrom, was entitled to a lien on such improvement to secure payment for the labor or material used in the erection thereof, with provision to remove the same from the leased premises. In the one case it is readily perceived that there is something substantial put upon the leased premises by the lessee, to which a lien may be attached for obligations incurred in the erection thereof, and which can be taken away, leaving the estate of the owner as it was when leased; while in the other case there is no structure or thing erected by the lessee which can be removed to which a lien may be attached to secure payment for the labor employed by the lessee in relation thereto.
The statute of this state upon the subject of liens provides that “the entire land to the extent aforesaid upon which any such building, erection, or other improvement is situated, including as well that part of said land which is not covered with such building, erection, or other improvement, as that part thereof which is covered with the same, shall be subject to all liens created by this chapter, to the extent, and only to the extent, of all the right, title, and interest owned therein by the owner or proprietor of such building, erection, or other improvement, for whose immediate use or benefit the labor was done or things were furnished; and when the interest owned in such land by such owner or proprietor of such build ing, erection, or other improvement is only a leasehold interest, the forfeiture of such lease for the nonpayment of rent or noncompliance with any of the other stipulations therein shall not forfeit or impair such liens so far as concerns the buildings, erections, and improvements thereon put by such owner or proprietor charged with such lien, but such building, erection, or improvement may be sold to satisfy said lien, and be moved within twenty days after the sale thereof by the purchaser.” (Comp. Stats., div. 5, § 1375, p. 1031.)
Under the provisions of this statute plaintiff is entitled to maintain its lien on improvements, such as buildings and machinery, placed on the leased premises by the lessee, to secure payment for the material or machinery furnished in the construction or equipment thereof, and is entitled to have its lien foreclosed thereon, and such improvements sold to satisfy such demand, with provision in favor of the purchaser to remove the things sold within the time provided by law. This lien attaches to matter added to the leased premises by the lessee, and goes no further, provision being made by law for removal thereof) so that the premises leased by the landlord may be returned to him unaffected by such lien. The statute so providing is paramount to the conditions of the lease, and the lien which the statute creates is not destroyed by a provision of the lease to the effect that the improvements by way of buildings or a mill for the reduction of ore shall inure to the lessor as soon as the same is placed on the premises. Such provisions of a lease, as well as provisions of other contracts, are subject to the provisions of the statute, and are presumed to have been made in contemplation thereof.
These appellants, Hight and Fairfield, further contend that the notice of plaintiff’s lien was not properly verified. The statute provides that the lien claimant shall, within forty-five days after furnishing the labor or material for which the lien is claimed, file with the county clerk and recorder of the county wherein the property is situate “ a just and true account of the amount due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit; but any error or mistake in the said account or description shall not affect the validity of said lien: Provided, the property may be identified by said description.” (15th Ex. Sess. Laws 1887, § 821, p. 71.) The account filed in this case was verified by O. J. McConnell, assistant manager of plaintiff, by the following affidavit:
State on Montana, \ County of Silver Bow. j SS‘
“ O. J. McConnell, being duly sworn, says that he is the assistant manager of the said Montana Lumber and Manufacturing Company; that he has heard read the above and foregoing notice and claim of lien, and knows the contents thereof; and that the statements and allegations therein contained are true, of affiant’s own knowledge.
“Montana Lumber and Manufacturing Company.
“By O. J. McConnell, Asst. Mgr.
“Subscribed and sworn to before me, this 19th day of April, A. d. 1892.
“Augustus T. Morgan, Notary Public.”
The point of objection to this verification is that McConnell appears to have subscribed the name of plaintiff corporation to this affidavit, and that the corporation was not acting and could not act as affiant therein. Notwithstanding this objection, the affidavit, as appears from its own terms, is the individual expression and affirmation of McConnell, out of his own mouth, and from his own personal knowledge, under oath administered by an officer duly qualified. It is his own personal utterance, verifying said account, under the sanction of his oath. We hold the verification sufficient.
Nor do we find sufficient force to vitiate the lien in the objection urged by appellants Hight and Fairfield that the notice of lien is insufficient, because it does not describe the party against whose property the lien was claimed. The notice of lien described said premises and the property on which the same are situate, and avers that the lumber, building material, and machinery were furnished by plaintiff to said defendant Obelisk company, and by it used in said improvements, and that said Obelisk company is the owner and reputed owner thereof. It is not proposed or sought in this action to make said lien a charge upon the property leased by Hight and Fair- field to the Obelisk company, but only upon said buildings and reduction plant placed on said mining claim by said lessee, and fully described in said notice of lien.
The assignment of error presented on behalf of plaintiff is that the trial court, by its ruling and decree, restricted plaintiff's lien to the precise material and machinery furnished by it, and used in the construction of said buildings and reduction plant. Plaintiff was entitled to a lien extending throughout the structure or mechanical plant erected or established on said property by the lessee, in the erection or construction of which the material and machinery furnished by plaintiff had been used. Such lien extends to the structure added to the leased premises by the lessee, and no further; and the boundary line between the rights of such lien claimant and the rights of the owner of the leased premises is found by ascertaining, not just how much lumber, or paint, or wall-paper, or nails, or how many particular “jigs and plungers and jig screens” were furnished by the lien claimant towards the buildings or reduction works on which the lien is sought to be applied, but by ascertaining the original condition of the leased premises when the lessee went into possession thereof, as respects the improvement on which the lien is claimed. If this were a case where some particular piece of machinery had been added to the mill, owned and leased along with the mine, it would, of course, be proper to restrict the lien for such machinery to that which was added by the lessee, and such ruling would be in conformity with the views here expressed, because it is here held that the lien for things furnished the lessee cannot extend to the interest or estate of the lessor; but there is no contention in this case that any of the improvements upon which plaintiff sought to have its lien foreclosed, or any part of the same, existed on said premises, and was owned by the lessors Hight and Fairfield when they leased said premises. There is no denial that the improvements described in plaintiff's lien were wholly added to the leased premises by the lessee; and, if that be true, the same are subject to plaintiff’s lien. The judgment should therefore be modified by decreeing the foreclosure of plaintiff’s lien upon the structures described therein, and shown to have been placed on said property entirely by the lessee.
The cause is therefore remanded for modification of the judgment in conformity with the views herein expressed.
Judgment modified.
Pemberton, C. J., and De Witt, J., concur.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
On July 8, 1916, the clerk of the district court of Blaine county received and filed the findings of fact and conclusions of law as made and forwarded by Honorable John A. Matthews, Judge presiding, in a certain cause then pending in that court wherein the Security Trust & Savings Bank of Charles City, Iowa, was plaintiff, and- Evert Reser, Katherine Reser and Bertha G. Reser were defendants, which cause had been theretofore submitted for decision. These findings show that the action was to foreclose certain mortgages, to-wit, one upon real estate, and one upon chattels, given to secure promissory notes aggregating $2,630 principal, which notes were executed and delivered by the defendants Evert and Katherine Reser in payment or part payment of a certain traction engine and plow outfit constituting, with some sixteen head of horses, the chattel security referred to; and in the conclusions of law it is declared that the plaintiff is entitled to a decree of foreclosure of said mortgages, to judgment for the sum of said notes with interest and attorney’s fees, and to a decree or order of sale of said property or so much thereof as may be necessary. Thereafter, and without any order or direction from the court or any further action by the judge thereof, but on motion of the attorneys for the plaintiff, the clerk signed, filed and entered what purports to be a final judgment in the cause, reciting that the court had carefully considered all the evidence presented; had examined the authorities cited, and had made its findings and conclusions of law (which findings and conclusions are neither inserted nor otherwise referred to), and adjudging and decreeing that plaintiff recover from the defendants $3,593.25, the amount of principal, interest, attorney’s fee and costs; that both defendants, and each of them, are personally liable therefor; that the same is a valid lien upon the lands and personal property described in the mortgages; that said property, or so much thereof as may be sufficient, be sold; that plaintiff is entitled to and may purchase said property at such sale, and that the defendants, including Bertha Reser, and “all persons claiming from or under them, or either of them, and all persons claiming to have acquired any estate or interest in or to said premises subsequent to the filing of the notice of the pendency of this action, as set out in said findings (no reference is made in the findings to any such notice) be forever barred and foreclosed of and from all equity of redemption and claim in, of or to said premises, except the right to redeem as provided by law.” Certain sales having been had and others being threatened under this purported judgment, the defendants brought this proceeding to review and annul the same upon the ground, among others, that the clerk had no power or'authority to make or enter it.
We think the contention must be sustained. While it is undoubtedly the function of the clerk in every case to enter, i. e., record, the judgment, we know of no instance where he is empowered to render one. Counsel for respondents seem to concede this, but argue that the findings of fact and conclusions of law were the judgment which the clerk did but enter and record under the plain mandate of section 6764, Revised Codes. This, however, is untenable, for the very language of that section makes it clear that the findings of fact and conclusions of law are not the judgment, but merely the foundation for the judgment ; and this must be particularly noted in cases of this kind. Judgments, like the causes of action from which they spring, are either at law or in equity — the latter, for purposes of instant distinction, being commonly termed “decrees,” and between the two classes great and fundamental differences exist. A' judgment at law is absolute, inflexible, expressive of the invariable rules of law applicable to the established facts in issue, taking no note of the situation of the parties or the means of enforcing the liability declared by it. A decree, on the other hand, is seldom predetermined as to its terms, by the general decision for or against the plaintiff or the defendant; it stands upon the particular merits of the controversy as they impress themselves upon the conscience of the chancellor, guided by principles broader than those of the law; it is the decision of the man who frames it as the interpreter of the moral standard which equity sets up; it is adjustable to all the exigencies of the litigation and to all the degrees of right or merit by which the parties may be distinguished, and it may, as often happens, contain specific directions for carrying out its purposes, provisions fixing the status of the parties, or prescriptions touching their course of conduct. (Freeman on Judgments, sec. 9; Black on Judgments, sec. 1; Broder v. Conklin, 98 Cal. 360, 364, 33 Pac. 211.) The application of these distinctions and their consequences are made manifest by the circumstances of this case. No such decree as the one before us was commanded by the findings in point of fact or followed from them as a necessary inference. Both real and personal property were involved, and, of the former, property to which a third person, not a party to the mortgages, laid claim; and specific directions as to how the sale should be conducted and how, for the purposes of such sale, the assets should be marshaled were quite in order. The decree contains no recognition of these things but does contain sundry provisions not foreshadowed in the findings, and which are therefore attempts on the part of the clerk to perform judicial acts.
The proper functions of the clerk touching the entry of judgment are purely ministerial, and their valid exercise requires a judgment which has been actually pronounced by the court — not necessarily written and signed, or else a judgment pronounced by the law as a necessary consequence of the facts established — as in cases of default, verdict, etc.; but tbe instances wherein the clerk may even enter judgment without express direction or pronouncement by the court are of necessity confined to those wherein no discretion can be exercised as to the terms of the judgment. That the judgment at bar is not of this character is clear from what it contains as well as from what it omits.
Some contention is made on behalf of the respondents that certiorari is not the proper remedy; but inasmuch as the purported judgment in question cannot be upheld on any theory, we have preferred to so declare rather than to engage in a disquisition touching the technical aspects of the procedure invoked. The very postulate of this proceeding, however, is that the respondent, Judge Matthews, had nothing to do with the making or entering of the so-called judgment; as to him, therefore, the proceeding must be dismissed, and it is so ordered.
The action of the clerk in making and entering the judgment referred to and said judgment with all proceedings had thereunder are annulled.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Behearing denied April 3, 1917.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action by plaintiff corporation to recover of the defendant $100, the par value of one share of its capital stock, upon a subscription contract therefor. The contract is as follows:
“September 18, 1913.
“Whereas, we, the undersigned, desire to secure and establish a flour mill at Yegen, Mont., for the purpose of doing custom and general mill work and the handling of all kinds of grain; and whereas, the Northwestern Mill Construction Company proposes to erect such a plant at Yegen, Mont.: Now, therefore, we, the undersigned, do hereby agree with each other and with the said Northwestern Mill Construction Company that we will purchase from a company, organized for the purpose of purchasing from the Northwestern Mill Construction Company such a plant, the number of shares set opposite our names. The shares to be $100 each. It being an express condition of this subscription that, if sufficient subscribers are not obtained within sixty days from the date hereof for the purchase of such a plant, or if a committee appointed from our number to in speet such a plant in operation shall report unfavorably, then these subscriptions may be, at our option, declared null and void; otherwise, to be in full force and effect.”
The complaint alleges that on or about the date of the contract defendant subscribed for one share of the capital stock of the plaintiff upon the conditions named. It then alleges that all the conditions of the contract had been fulfilled, and that the stock of the plaintiff was issued to each of the subscribers in the amount subscribed by him; that one share was issued and tendered to the defendant, but that he refused to accept and pay for the same. Judgment is demanded for the amount of the subscription, with interest and costs. The answer by counteraverment denies that the committee mentioned in the contract was appointed or made any report. It admits all the other allegations of the complaint and alleges three separate affirmative defenses. At the trial the second one of these was abandoned. The others may be briefly epitomized as follows: (1) That the defendant signed the subscription contract at the solicitation of one Frank Sanderson; that, as an inducement to him to subscribe, Sanderson made certain representations to him as to the kind and character of the corporation to be formed, the location of the milling plant, and the profits such a plant would yield; and that defendant believed such representations and relied upon them as true, whereas they were false; (2) that it was a condition precedent that the committee provided for in the subscription contract should be appointed and should make report before the subscription should become effective; that no such committee was ever appointed; and that for this reason defendant, on December 6, 1913, notified the secretary of plaintiff that his subscription was null and void, and that he would not pay it. The reply joins issue upon these defenses. At the opening of the trial the court held that, upon the issues as made, the burden was upon the defendant. Upon objection by counsel for plaintiff, it excluded all the evidence tendered by defendant in support of the first defense. After the evidence was submitted in support of the third de fense, the court on motion directed a verdict for the plaintiff. The defendant has appealed from the judgment and an order denying him a new trial.
Counsel have • devoted much space in their briefs to a discussion of the questions whether the complaint states a cause of action, whether the allegations in the first special defense disclose a case of fraud by Sanderson, the solicitor of the subscription, and whether the court properly ruled that the burden was upon the defendant. It is not necessary to consider and determine these questions, because under the evidence submitted in support of the third defense, which presents no substantial conflict, the defendant, we think, was clearly entitled to a verdict and judgment.
The contract does not expressly provide that the two conditions therein named are precedent. The conclusion cannot be avoided, however, that each subscriber, when he signed it, understood that he had reserved to himself the option to withdraw his subscription: First, if the amounts subscribed within sixty days from September 18 were not sufficient to make the proposed purchase; and, second, if a committee appointed from the number of subscribers made an unfavorable report after conducting the proposed investigation. It is clear, also, that they understood that the power to appoint the committee resided in the subscribers, for it was to be appointed from “our number” — language which, from the fact that it included all subscribers, cannot be construed to mean anything other than that the inspection was to be made by authority of all, and for the benefit of all. It may be assumed that those who were engaged in promoting the enterprise were impliedly authorized to take the lead in calling the subscribers together and ascertaining their wishes; but the right to select those whose opinion was to have significance as a determinating factor in their subsequent conduct was vested in the common body. The purpose to be served in inserting this provision evidently was that those subscribers who had not practical experience in connection with such enterprises might have the benefit of the judgment of those of their number whom they deemed qualified to judge of the feasibility and prospective success of the one to be established at Yegen, and therefore whether the proposed investment would probably prove profitable. It was clearly not contemplated that any number of the subscribers less than the whole should select a committee whose judgment should conclude all. In order to reach the desired result, therefore, while it was not necessary that all should take part in selecting the committee, it was necessary that whatever form the proceeding assumed, all were to have an opportunity to take part.
Mr. Thompson, in his work on Corporations, speaking of these subscription contracts, says: “It is not necessary that a condition precedent be expressly stated as such; courts would scarcely require subscribers to say in express language that their subscriptions are made on condition that the corporation shall first perform some particular thing; on the contrary, mere recitals in the contract of subscription are frequently regarded as implied conditions.” (Sec. 599.)
In 10 Cyc., at page 412, we find this statement of the rule: “A man cannot be forced into a contract which he does not choose to enter into. If, therefore, a man subscribes for shares in a corporation upon a condition which is lawful, and which consequently may be performed, unless that condition is performed, or its performance is waived by him, he cannot be held to make good his subscription.” Again, on page 418, this statement is found: “If the condition is expressed on the face of the subscription agreement, and is valid under rules and theories already discussed, the obligation of the subscriber does not become binding until the condition has been performed by the corporation or waived by the subscriber; until that time he cannot be held to the liabilities of a shareholder. It is scarcely necessary to suggest that the corporation cannot elect to treat as unconditional a subscription which has been made upon a valid and expressed condition. ”
The general rule is that an unconditional subscription is a continuing offer until the proposed corporation is formed. It becomes irrevocable only when it has been acted upon. This, however, is necessary in order to bind the subscriber, and until the corporation is formed, he is at liberty at any time to withdraw. (Deschamps v. Loiselle, 50 Mont. 565, 148 Pac. 335.) When the subscription, as here, is made to take effect upon the fulfillment of a condition precedent, the condition must be fulfilled, or the offer is never binding, even though the corporation has been formed. On this subject Mr. Thompson says: “Many cases have held that a strict performance of the condition is necessary in order to entitle the corporation to recover. These holdings are governed largely by the particular wording of the contract of subscription. And where there is nothing to show a contrary intention, and the language of the subscription is plain, there is no reason why a strict compliance should not be required. This naturally follows as a minor proposition from the major' premise, that a subscriber may attach any condition to his subscription which he sees fit, under the limitation that it is not contrary to law or against public policy, and is within the power of the corporation to perform. For a court to say that a subscriber might thus attach a whimsical condition to his subscription, and then to hold that there need not be a strict compliance on the part of the corporation, would be illogical and inconsistent.” (See. 604.) This rule is supported by the following cases: Martin v. Pensacola etc. Ry. Co., 8 Fla. 370, 73 Am. Dec. 713; Midland City Hotel Co. v. Gibson, 11 Ga. App. 829, 76 S. E. 600; Chase v. Sycamore etc. Ry. Co., 38 Ill. 215; Cravens v. Eagle Cotton Mills Co., 120 Ind. 6, 16 Am. St. Rep. 298, 21 N. E. 981; Belfast etc. Ry. Co. v. Moore, 60 Me. 561; Morrow v. Nashville Iron etc. Co., 87 Tenn. 262, 10 Am. St. Rep. 658, 3 L. R. A. 37, 10 S. W. 495.
The evidence discloses that no committee was ever appointed by authority of the subscribers, or made report to them. At the time the subscriptions were solicited, it was understood by the subscribers that the committee to be appointed was to inspect a mill similar to that proposed, situated at Absarokee, in Stillwater county, and make report accordingly. The only attempt to fulfill this condition was the following: Mr. Prank Sanderson, who solicited the subscriptions from the defendant and others, C. W. Sanderson, John Epperson, Roy Stebbins and J. M. Brannon, all being subscribers, agreed among themselves, at the instance of W. W. Clarke, himself a subscriber and also interested in some official capacity in the Northwestern Mill Construction Company, to go to Absarokee and inspect the mill at that place. Mr. Clarke proposed to pay the expenses of all who would go. The first five took the lead in effecting the organization; Prank Sanderson becoming its president and C. M. Sanderson its secretary. They called up some of the subscribers by telephone, including the defendant. Some of them had no notice of any bind. The defendant testified: “The evening before the committee went, Mr. Sanderson called me up and asked me if I would like to go to Absarokee. He didn’t say the committee. I said it was impossible for me to go. I asked him who was going. He said: ‘I don’t know any more than I think Mr. Roy Stebbins and Mr. Sansome.’ ” He declined to go. Later a meeting of those who went to Absarokee and some of the other subscribers was held at a schoolhouse near Yegen, at which this self-constituted committee made a formal report. Prank Sanderson testified as to what took place at that time as follows: “After we made the trip, there was a meeting of the subscribers held. I don’t know the date of the meeting. It was held at Canyon Creek schoolhouse at a called meeting. The meeting was called just among ourselves. Told everybody we saw, and called up some on the phone, etc., that there would be such a meeting there, and this committee would report at that meeting. The committee reported at that meeting. The report was favorable.” The defendant was informed of this meeting, but did not attend, and did not know what was done. Concerning it he testified: “Mr. Sanderson told me of a meeting to be held at the Canyon Creek schoolhouse, at which this committee that went to Absarokee was to report. That was to be on a Saturday evening.” Some of the subscribers did not become such until after these occurrences had taken place. On November 17 Mr. Stebbins, who was acting as “secretary,” sent written notices to all the subscribers, addressing them as stockholders of the plaintiff, that their first meeting would be held at the store of C. M. Sander-son, at Tegen, on December 6, for the purpose of “adopting by-laws for the said company.” He asked for the proxies of those who did not care to attend the meeting in person. Defendant did not attend, nor did he send his proxy. The preliminary steps were taken to effect the organization of plaintiff, by the execution of the articles of incorporation and the selection of officers. On the same day defendant notified Stebbins by telephone that he canceled his subscription on the ground of misrepresentation. Later, in a conversation with Stebbins, he told him he had withdrawn his subscription. With reference to what occurred he testified: “I called up Roy Stebbins, and told him to cancel my subscription because of misrepresentations. I told him the change of location [of the mill] was one. That is not the only one I mentioned. I stated it was a misrepresentation all through, for I understood we were to be called together as subscribers to select the committee. The substance of my conversation with Stebbins at that time was something to that effect. In the course of our conversation Mr. Stebbins said he wasn’t satisfied with the action they had taken. He said: ‘I, for one, would have rather that they had called the subscribers together before doing anything.’ And the next time I saw Mr. Stebbins, he said to me, ‘Did I really mean I was pulling out?’ and I said I did.” The organization was completed by the filing of the articles on December 17.
It may be conceded that, if the defendant had by word or act assented to or ratified the proceedings of the self-constituted committee, as by attending the meeting at the schoolhouse to hear its report, or by attending the subsequent meeting at Sanderson’s store, and taking part, without objection, in the organization of the company, he would properly be held to have waived the right to insist that he had not been given an oppor tunity to exercise his option to annul his subscription. He was not bound, at his peril, however, to object to the proceedings of a committee of which he had not been informed, and in the selection of which he had taken no part. He had a right to understand that Frank Sanderson, Stebbins, and others, who had assumed the leadership in forwarding the enterprise, would give him notice, so that he might take part in the selection of the committee by whose favorable judgment he was to become bound. He was not consulted as to the propriety of the selection of the self-constituted committee. The information he received was that there was a committee, with an opportunity extended to him to join it, if he desired to do so. He was not •bound by its action, unless he chose to be; and as he said no word nor performed any act from which it might reasonably be inferred that he intended to acquiesce in the action of the committee, the fulfillment of the condition of the contract was not waived by him. Therefore, under the rule of the authorities cited, he was at liberty to recall his subscription and thus avoid liability to pay it. Otherwise, he became bound, notwithstanding he never had an opportunity to exercise his option.
The notice of withdrawal by defendant was given to Stebbins after the adjournment of the meeting of December 6, at which C. M. Sanderson was named secretary of the plaintiff. Inasmuch as defendant never had an opportunity to exercise his option as contemplated in the contract, he was not under obligation to give notice to anyone, even though the corporation was thereafter fully organized. In any event, his notice to Stebbins was sufficient to indicate his purpose.
The judgment and order are reversed and the cause is remanded to the district court, with direction to enter judgment for the defendant.
Reversed and remanded.
Mr. Justice Sannee concurs.
MR. JUSTICE HOLLOWAY:
I am unable to subscribe to the conclusion reached by the majority. Under the third de fense, defendant could avoid liability only in the event that the report of the committee was unfavorable. No such report was ever made. Though the committee which investigated the Absarokee plant was selected in the most informal manner, it nevertheless made an investigation and reported favorably. The defendant does not object to the personnel of the committee, does not contend that it was not fairly representative of the subscribers generally, and does not challenge the correctness of the report. If the report made truthfully stated the facts concerning the Absarokee plant, then defendant is not entitled to be heard to urge this defense, for, though an entirely different committee had been selected, and selected in the most solemn and formal manner imaginable, the report would necessarily have been the same.
Reduced to its ultimate analysis, then, defendant avoids responsibility solely on the ground that the committee was not selected in a formal manner. This he ought not to be permitted to do. Upon the theory of the case presented to the trial court, I think the correct conclusion was reached, and that the judgment should be affirmed.
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MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
In June, 1916, accusation in writing verified by W. W. Payne was presented to tbe district court of tbe fifth judicial, district charging Bert Gr. Paige, a county commissioner of Madison county, with official misconduct. Tbe accusation is in three counts. By the first it was intended to charge tbe collection of illegal fees, and by tbe second and third that Paige was person ally and financially interested in certain property which he caused to be purchased by the county. A citation was issued, and the accused appeared and denied the material allegations of the accusation. When the proceeding was brought to trial the court declined to try in a summary manner the issues framed upon the second or third count, and when it was sought to prove the allegations of the first count, an objection to the introduction of any evidence was sustained and the proceeding dismissed. The accusing party .then secured from this court an alternative writ of mandate directed to the lower court requiring it to proceed with the hearing or show cause why it refused to do so. Upon the return a motion to quash was interposed and the matter submitted.
The proceeding was instituted under section 9006, Revised Codes. That section does not comprehend such official misconduct as is charged in either the second or third count of the accusation, and for this reason the court correctly refused to try the issues presented upon either of those two counts.
The first count charges that the accused collected illegal fees from Madison county for alleged services rendered by him in his office as county commissioner, in that he presented to and collected from the county his bill for $249 for items, among which are a large number every one of which it is alleged is illegal. Copied in the accusation is a list of these alleged illegal items. A part of that list, sufficient to illustrate the whole, is as follows:
“1915.
June 13, 1 day with Grant, Waterloo................$8.00
expense on same day................... 4.00
15, 1 day Big Hole road French Ranch.......... 8.00
and ex................................ 3.50
17, day Wisconsin Creek lower road.......... 4.00
ex..................................... 2.00
18, y2 day to road crew with extras............. 4.00
ex.......................... 2.50
“1915.
June 21, 1 day. See about right of way Cox et al...... 8.00
ex..................................... 5.00
24, % day Point Bocks, Mailey road............ 6.00
ex..................................... 4.00
July 2, y2 day to road crew with extras............. 4.00
ex..................................... 2.00
7, % day Exchange, help road crew............ 6.00
ex.................................... 3.00”
There is a separate charge relating to an item of $12, which it is alleged was collected by the accused as and for expenses incurred by him in connection with his attendance upon a meeting of the board.
1. It is contended that this first count does not state facts sufficient to constitute an offense cognizable under section 9006:
(a) Because the items of expense are not fees within the meaning of the word as used in that section. The term “fees” used in the Codes is somewhat elastic. Section 3172, Bevised Codes, provides that “the county surveyor is entitled to receive and collect for his own use the following fees: * * * Expense of chainmen and markers,” etc. Section 3173: “The coroner is entitled to receive and collect for his own use the following fees: * * * For each mile actually traveled in the performance of any duty, ten cents.” We think the term “fees” used in section 9006 is sufficiently broad to comprehend both per diem and expenses. (Burrows v. Balfour, 39 Or. 488, 65 Pac. 1062; 19 Cyc. 462.)
(b) Because it is not alleged that the services for which the charges were made were not rendered, or, if rendered, that the fees received are not authorized by law. Section 9006 is directed against the incumbent of an office who makes use of his official position as a medium for securing fees to which he is not entitled. (Smith v. Ling, 68 Cal. 324, 9 Pac. 171.) The gist of the offense condemned is the collection of illegal fees by virtue of official position. To constitute the offense, therefore, it must be made to appear (a) that the accused is the in cumbent of a public office, (b) that, acting by virtue of his office, he collected certain fees, and (e) that the fees collected were illegal; that is, not authorized by law under the circumstances of the particular case.
If the fees were collected for services never rendered, or never intended to be rendered, they would be illegal. (Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502.) If they were collected for services rendered but for which no compensation is allowed, they would be illegal. (State ex rel. Rowe v. District Court, 44 Mont. 318, 27 Ann. Cas. 396, 119 Pac. 1103.) If the accused collected for services rendered more than the law allows for such services, he collected illegal fees within the meaning of section 9006. (Leggatt v. Prideaux, 16 Mont. 205, 50 Am. St. Rep. 498, 40 Pac. 377.)
We agree with counsel for the accused that it does not aid the accusation to say that every item in the list above is illegal. These fees are legal or illegal depending upon whether they are, or are not, authorized by law. A county commissioner can lawfully collect for services performed in virtue of his office only such fees or other compensation as the law specifically authorizes. The law authorizes per diem and mileage for attending the meeting of the board (sec. 2893, Rev. Codes), and per diem and expenses while inspecting contract construction work on a highway or bridge, under a proper order of the board. (Laws 1915, p. 319.)
The statute does not prescribe rules of pleading. It does contemplate that the accusation may be prepared by a layman. In any event, it is sufficient if it clearly and distinctly sets forth the facts constituting the offense, in ordinary and concise language and in such manner that a person of common understanding may know what was intended. (Woods v. Varnum, 85 Cal. 639, 24 Pac. 843.)
If the items for which the accused charged these fees show on the face of them that they are not authorized by law, there is no necessity to characterize them or attempt to show wherein they are illegal. They show for themselves. We think the accusation, in the first count, is sufficient to charge the collec tion of illegal fees. In effect it alleges that the accused, acting in his official capacity as county commissioner of Madison county, spent one day seeing about a right of way for which he charged and collected from the county $8 and $5 additional for expenses, etc. This item particularly is not comprehended within any provisions of the law authorizing fees or other compensation to a member of the board of county commissioners for services rendered in his office, and is therefore prima facie illegal. There are others of the same general character, and still others which are not prima facie illegal but may be illegal or not, depending upon circumstances which are not disclosed by the accusation. Since the first count charges the collection of certain fees which on the face of them appear illegal, it is sufficient to withstand an objection to the introduction of evidence.
2. It is next contended that section 9006 is unconstitutional, in that it attempts to authorize a prosecution for crime by a private individual and the trial and conviction of the accused upon a summary hearing without a jury. Section 8, Article III, of the Constitution provides that all criminal actions in the district court, except those on appeal, shall be prosecuted by information or indictment. Section 16 of the Bill of Rights provides: “In all criminal prosecutions the accused shall have the right to * * # a speedy public trial by an impartial jury.” Section 27, Article VIII, of the Constitution provides that all prosecutions shall be conducted in the name of the state. If the proceeding authorized by section 9006 is a criminal prosecution, within the meaning of those terms as they are used in the Constitution, then it follows as of course that this section is invalid.
“Criminal prosecutions,” as those terms are employed in the Constitution, refer to prosecutions for offenses which were crimes at common law and doubtless to statutory offenses. (McInerney v. Denver, 17 Colo. 302, 29 Pac. 516; 6 Am. & Eng. Ency. Law, 2d ed., p. 974; 6 R. C. L., p. 458.) Section 17, Article V, of the Constitution provides for the removal of cer tain officers by impeachment, and section 18 of the same Article declares that officers not liable to impeachment are subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law. Recalling that our Constitution is a limitation and not a grant of power, it will be seen at once that the provisions of section 18 above added nothing to the power which the legislature would have had in the absence of such provisions. In other words, the legislature, was left entirely free to enact such statutes as it might see fit providing for the removal of officers other than those enumerated in section 17.
Proceedings for the removal of a public officer do not necessarily partake of the nature of a criminal prosecution. Indeed, the power to remove an unfaithful or negligent public official is not essentially a judicial power. Under our Constitution, its exercise is left to the legislature itself or to such other authority as the legislature may designate. This is the plain import of section 18 above, and is the general rule in the absence of any constitutional declaration upon the subject. (29 Cyc. 1370; State v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131; Territory v. Cox, 6 Dak. 501.) The power may be conferred upon the governor (Cameron v. Parker, 2 Okl. 277, 38 Pac. 14) or upon a board. (Donahue v. Will County, 100 Ill. 94.) It may be conferred upon a court of general or limited jurisdiction to be exercised in the mode provided by law, and consequently, if the legislature sees fit to require a jury trial, a jury trial must be had; but if it sees fit to provide for a summary .hearing without a jury, no constitutional right of the accused is infringed. (Rankin v. Jauman, above.)
Many of the states have statutes similar to our section 9006, and they have been upheld uniformly. The proceeding need not be in the name of the state, and an accusation in the form of an affidavit meets all the requirements of the statute. (Wood v. Varnum, above.) In State ex rel. Rowe v. District Court, above, this court held that the proceeding authorized by section 9006 is quasi-criminal in character, but that the accused is not entitled to a jury trial. (Page 327.) Doubtless it would be more nearly accurate to say that the proceeding is a special statutory one and avoid any attempt at arbitrary classification. It is one clearly authorized by law in the exercise by the legislature of its plenary power. It is initiated by a private individual. It need not be in the name of the state. The accused is not entitled to a trial by jury, and it is not a criminal action in the sense that the public prosecutor must conduct the proceeding.
There are expressions by way of dicta to be found in State ex rel. McGrade v. District Court, 52 Mont. 371, 157 Pac. 1157, which indicate a contrary view; but on examination it will be found that the particular questions to which such expressions are directed were not necessarily involved in the decision of that case. The only question there presented was whether an attorney called upon to conduct such a proceeding is entitled as of right to compensation from the county for his services, and it was held that he is not, because the statutes do not provide for such compensation.
3. Is mandamus an available remedy? Section 9006 makes no provision for an appeal or other means of review. The trial court refused to proceed because of an erroneous view of a preliminary question of law, and in such ease mandamus will lie to get the machinery of the law in motion. (State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804.)
It is ordered that a peremptory writ of mandate issue, directed to the district court, requiring it to reinstate the proceeding and try the issue presented upon the first count of the accusation.
Writ issued.
Mr. Chief Justice Brantly and Mr. Justice Sannee concur.
Rehearing denied May 28, 1917.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the Court.
W. W. Merk was charged with the crime of murder, convicted of manslaughter, and appealed from the judgment and from an order denying his motion for a new trial.
We shall notice but one of the contentions made by the appellant, viz., that the evidence is insufficient to sustain the verdict. There is not any substantial conflict in the evidence. Slight discrepancies as to minor details appear, but these can be accounted for readily without impeaching the integrity of anyone. The defendant is apparently the only living witness to all the transactions leading np to the tragedy. Each of several other persons was present during a part of the controversy, and it is necessary to piece together these stories to present a composite picture of the whole, independently of the evidence offered by the defendant.
Benjamin Yarbrough, a saloon-keeper at Silver Star, Montana, and.a principal witness for the state, testified that about noon of June 2, 1916, James King came into his saloon, and something more than an hour later the defendant and Steve Jovanetti entered the same place; that two or three other persons were present, and all appeared friendly; that card-playing and drinking were indulged in, and after some time Merk and King engaged in conversation with reference to some lambs which King promised to present to Merk’s children, and then with reference to some mutton which King claimed he had sent to, or intended for, Merk’s family, and which he insisted Merk had received; that Merk denied that he had received the mutton, and King called him a damned liar; that Merk replied in kind, and King remarked that if Merk was not so small, he would slap his face or knock his head off; that Merk then applied to King some vile epithet, and King again remarked that if Merk was not so small, he would hit him; that afterward Jovanetti induced King to go outside, and Merk followed; that when they returned to the saloon King said, “I am all to blame for it,” and invited those present to drink with him; that after they had been served, Merk brought up the subject of their previous quarrel, and used some insulting language to King; that King invited Merk to drink and “let it go and say no more about it”; that after taking this drink Merk again referred' to their quarrel,, and King said to him in effect, “Call me all the vile names you want to and get it off your mind”; that Merk desisted, and the two men then joined the proprietor in drinking; that when Merk again referred to the trouble King remarked that he had done everything to satisfy Merk, and immediately seized Merk by the throat and pushed him against the bar; that Jovanetti attempted to interfere, and King re leased Merk and told 'Jovanetti to stand back or he would give him some of the same treatment; that King again seized Merk by the throat, and they moved to .the end of the bar and behind it, breaking some glassware; that he (Yarbrough) interceded, and the men separated and quieted down; that two small boys, Frank Marvin and James Lewis, came to the door, and he then went to a cellar outside the saloon building for some wine, and while he was in the cellar the shooting occurred. Yarbrough had been drinking heavily during the afternoon.
Louis Anderson testified for the state that he was in the saloon for a short time and heard some foul language pass between Merk and King, and that at one time Merk said to King, “Come out and we will settle it,” to which King replied, “If you have anything to settle with me, say it right here.”
J. H. Barkell was in the saloon for a time early in the afternoon, and heard some of the conversation detailed by Yarbrough.
L. T. Herman heard very little of the conversation, and testified to nothing new.
Frank Marvin, one of the two boys who came to the door of the saloon just before the shooting, testified that when he reached the door of the saloon, King had Merk by the throat, and was asking Merk if he was going to be a man; that King pushed Merk around the end of the bar and behind the bar, breaking the glasses, and on to the cash register; that King slapped Merk’s face, released him, and came from behind the bar and said to Merk, “Come on out now and let us be friends,” to which Merk replied, “No, I am going to stay here,” to which King responded, “Not if I know it,” and started around the bar as if to pull Merk out; that Merk then drew a pistol and told King to stand backhand the witness then ran. He heard one shot distinctly, and then several more in such rapid succession that he could not count them.
James Lewis, the other boy, who was thirteen years of age, testified that when he reached the door of the saloon, King was choking Merk and telling Merk to be a man; that he backed Merk up along the bar and slapped his face. That Jovanetti attempted to interfere, and King said to him, ‘1 Are you in this ? If you are I will be around there in a minute and give you some of it.” That King then threw Merk up against the cash register behind the bar and made Merk apologize and say he would be a man; that King then came from behind the bar and said to Merk, “Come on out here,” to which Merk replied, “No, sir; I will stay right here,” and then King said, “You won’t if I know it,” and started around toward Merk; that when King reached the end of the bar Merk drew a pistol and told King to stand back; that he did not know what King was then doing with his right hand; that King stepped back' about two steps, and that Merk then fired the first shot and the witness ran, but heard other shots, and heard King fall to the floor and heard groans. The defendant and one of the coroner’s jurors testified that at the inquest held on the day following the shooting, this boy, James Lewis, testified that he did not know who fired the first shot.
Otto A. Shultz, King’s employer, testified that King usually carried a revolver when he was on the range or about with stock. It was also made to appear that each man emptied all the chambers of his revolver; that Merk probably fired five shots and King six; that three shots from King’s revolver entered the back bar and one shot fired by Merk entered the ceiling of the building; that Merk received four slight wounds and King received three wounds, one of which at least was fatal; that King fell to the floor almost immediately after the shooting ceased, and died within a minute or two; that Merk is a small man, while King was six feet three or four inches tall, raw-boned, weighed about 210 pounds, and was about «forty-five years old.
Jovanetti and the defendant told substantially the same story as detailed by the witnesses for the state. However, they made it appear that King employed more vile language, was rougher in his treatment of Merk, and that he struck Merk two or three times during the course of the quarrel.
Merk testified that he was choked almost to insensibility; that he was thrown with great force against the cash register; that he refused to come from behind the bar because of his fear of King and to avoid trouble. He denied specifically that he had renewed the war of words at any time, or that he invited King outside to settle their trouble. He testified that he knew that King habitually carried a revolver, and knew that he had one on this day; that he had many opportunities to shoot King while King was choking him, but would not do so and tried to avoid difficulty; that when King started toward him to bring him from behind the bar, King said: “You have got a gun; so have I. Commence shooting”; that both drew their guns at about the same time; that he did not shoot until he deemed himself in imminent peril, and that both fired simultaneously or nearly so. He testified also that he knew that King had been drinking heavily during the afternoon, and introduced several witnesses who testified that King was a violent and dangerous man, particularly while drinking. An equal or greater number testified to his good reputation for peace and good order. The defendant himself had been drinking considerably during the afternoon and before the shooting occurred.
The foregoing fairly epitomizes the material evidence presented in the record. We have omitted the unspeakably foul language which the deceased and defendant employed. Apparently each exhausted his very extensive vocabulary of vituperation and billingsgate.
The right' of self-defense has its foundation in the law of nature. It existed before the formation of society, and while every individual is presumed to have surrendered to society the right to punish for crime and for the infractions of individual rights, the possession and exercise of the right of self-defense by the individual are still deemed to be necessary to personal safety and security and not incompatible with the public good. Society may curtail the right somewhat and restrain its exercise in many particulars, but the right itself is brought by the individual with him when he enters society and is not derived from it. (13 R. C. L. 810.) The right was recognized by the common law though the rules which regulated its exercise were rigid in the extreme — so rigid, indeed, that they have been greatly liberalized by statutes in most of the states. During the territorial regime we had statutes designed to secure to every one the right of self-defense, and while these several statutes modified to some extent the rules of the common law, they in turn were superseded by the Codes whose provisions respecting this subject were far more liberal, and doubtless seemed to be more nearly in harmony with the spirit of the age.
A comparison of our present statutory provisions with the provisions of the Compiled Statutes of 1887 (sees. 32-34, Fourth Div.) will disclose the changes effected by the adoption of the Codes. Section 8301, Revised Codes, provides that homi-
cide is justifiable when committed by any person in the lawful defense of himself, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury and imminent danger of such design being accomplished. Section 8302 provides that a bare fear of the commission of either of the offenses just mentioned is not sufficient to justify homicide, but the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fear alone. If the party who commits the homicide was the assailant or engaged in mortal combat, he must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
In State v. Rolla, 21 Mont. 582, 55 Pac. 523, this court said: “If it appeared to the accused at the time of the homicide, as a reasonable person, that it was necessary for him to slay his assailant in order to save his own life or prevent receiving great bodily harm, he had a right to act upon such appearances, and slay his assailant, although he was in no actual danger. ’ ’
In State v. Houk, 34 Mont. 418, 87 Pac. 175, we approved an instruction as follows: “It is not necessary, however, to justify the use of a deadly weapon, that the danger be actual. It is enough that it be an apparent danger; such an appearance as would induce a reasonable person to believe he was in danger of great bodily harm. Upon such appearance a party may act with safety, nor will he be held accountable though it should afterward appear that the indications upon which he acted were wholly fallacious, and that he was in no actual peril. The rule in such case is this: What would a reasonable person — a person of ordinary caution, judgment, and observation — in the position of the defendant, seeing what he saw, knowing what he knew, suppose from this situation and these surroundings? If such reasonable person so placed would have been justified in believing himself in imminent danger, then the defendant would be justified in believing himself in such peril and acting upon such appearances.” That instruction the court gave in this case. Of course, the defendant might have awaited further assaults by King, and might have taken his chances that they would not result more seriously than the assaults already committed. He might have awaited until he actually received great bodily harm, but if one who is attacked must restrain himself until subsequent events determine whether the attack will result fatally or in grievous bodily harm, then the right of self-defense is one in name only. This is not the law. A person assailed may act upon appearances as they present themselves to him, meet force with force, and even slay his assailant; and, though in fact he was not in any actual peril, yet if the circumstances were such that a reasonable man would be justified in acting as he did, the slayer will be held blameless.
The rule of the common law that, before anyone can be justified in slaying his assailant, he must have retreated to the wall finds no favor with modern courts or text-writers. The defendant was not compelled to seek a place of safety, but in effect he did so. Though it resulted from the brute force of the deceased, the defendant actually found himself’behind the bar in a place of comparative safety, and announced his intention to remain there, but was not permitted to do so peaceably.
Giving the opprobrious epithets used by the defendant toward the deceased all the legal effect possible, still the evidence leaves no doubt that the deceased was the aggressor throughout.
This is not a case where the record presents conflicting stories, and where the verdict may be said to rest upon the finding of the jury in favor of the testimony of some witnesses and against the testimony of others. As we have said before, there is not any substantial conflict in the evidence. That with each succeeding assault made by the deceased his violence increased is apparent from the state’s evidence, independently of the testimony of the defendant; that by sheer physical force the deceased was able to inflict great bodily injury is equally apparent; and when to this are added the facts that he was armed with a deadly weapon, that he was, to a greater or less extent, under the influence of liquor and by some of his neighbors at least considered to be a dangerous man when in that condition, and that he drew his gun and emptied all the chambers so nearly directly at the defendant that four shots took effect and three of the six fired were found to have lodged in the back bar near where the defendant was standing; and that all the shots were fired so nearly together that the deceased must have drawn his gun before or at the time defendant fired — all lend color to the testimony of the defendant that he shot only when he deemed himself to be in peril, and convince us that it cannot be said beyond a reasonable doubt that a reasonable man in the position of the defendant, seeing what he saw and knowing what he knew, would not have felt justified in doing what he did.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly. and Mr. Justice Sanner eoneur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The Continental Oil Company - commenced an action against J. W. Jameson to enforce payment for certain goods, wares and merchandise sold and delivered to the defendant. A writ of attachment was issued and property belonging to the defendant seized. A motion to discharge the attachment, on the ground that an affidavit had not been presented at the time the writ was issued, was granted, and plaintiff appealed from the order.
At the time the writ was issued the plaintiff filed with the clerk of the court the following writing:
“Affidavit of Attachment.
‘ ‘ State of Montana
County of Blaine — ss.:
“W. B. Sands, being duly sworn, says: That he is the attorney for plaintiff in the above-entitled action. That the defendant in the said action is indebted to it in the sum of eight hundred sixty-one dollars, lawful money of the United States, over and above all legal setoffs and counterclaims, upon an express contract for the direct payment of money, to wit: A balance due for merchandise sold by plaintiff to defendant of eight hundred sixty-one dollars. That the same is now due, and that the payment of the same is not scoured, by any mortgage, lien, or pledge upon real or personal property. That the attachment is not sought, and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant.
“W. B. Sands.
“Subscribed and sworn to before me this 5th day of Nov., A. D. 1915.
iC 7
“Notary Public for Montana Residing at Chinook, Montana.
“My commission expires.”
An indispensable prerequisite to the issuance of a valid writ of attachment is the presentation to the clerk of the court, by the plaintiff, of an affidavit containing the averments enumerated in section 6657, Revised Codes. Section 7988, Revised Codes, defines an affidavit as follows: “An affidavit is a written declaration under oath, made without notice to the adverse party.” On the face of the paper copied above it is not an affidavit, for the declarations contained therein do not purport to be made under oath, or before an officer authorized to administer an oath. It is a mere ex parte statement by Mr. Sands. If, as a matter of fact, an oath was administered, and the statements in the writing received the sanction of the oath, but the officer neglected to sign his name to the jurat, the writing was subject to amendment under the express provisions of section 6683; but plaintiff did not ask to amend the writing, but contented itself with presenting affidavits in opposition to the motion to-discharge, to the effect that the declarations contained in the writing were made under oath, and by inadvertence the officer omitted his signature. In support of an application to amend, these affidavits would have been proper, but in opposition to the motion they are entirely out of place.
The motion to discharge was made upon the record and not upon affidavits. Section 6682, Revised Codes, provides: “If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made.” In the absence of an application to amend, the trial court had before it nothing to disclose the true character of the writing, and its order was commanded by section 6683.
The writing is also defective in substance as well- as in form. Section 6657 above requires that the affidavit shall contain the statement that payment of the indebtedness has not been secured “by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless. ’ ’ The purpose of this requirement is obvious. There is but one action for the recovery of debt secured by mortgage upon real or personal property, viz., foreclosure. (Rev. Codes, sec. 6861.) If, however, the debt was originally secured, but without fault of the plaintiff, or the person to whom the security was given, the security has become valueless, an attachment may issue, provided the facts be disclosed in the affidavits.
The statement in this instrument that payment of the debt is not secured falls short of the requirements of the statute. It is clearly referable to the date upon which the writing was prepared or tendered to the clerk; and, though the debt may not have been secured at that time, it does not negative the fair implication that it was secured at some time prior thereto. Indeed, the statement is pregnant with the admission that the debt had been secured, and omits altogether any explanation which would warrant an attachment. Substantial compliance with the requirements of the statute is necessary to authorize the issuance of a valid writ. For this additional reason, the court was justified in making the order.
The order is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
In this action the plaintiffs sought recovery of the defendant on two counts. The first was for a balance of moneys alleged to have been received by the defendant for the use and benefit of the plaintiffs, in the sum of $2,329.08, this balance having been ascertained and awarded to plaintiffs by arbitrators to whom they and defendant had theretofore submitted their differences for- final adjustment. The second was for the sum of $408.23 alleged to have been due to plaintiffs for goods, wares and merchandise sold and delivered by them to the defendant, and for the use of teams, wagons, harness, etc., furnished by them to the defendant at his special instance and request. The defendant, answering, denied that he owed any part of the balance demanded in the first count, save and except the sum of $87.57. He denied all the allegations of the second count. By way of further defenses to both counts, he alleged twelve separate counterclaims. To the fifth, sixth, eighth, ninth, tenth, eleventh and twelfth of these the plaintiffs replied, averring that the amounts demanded therein had all been included in the submission to the arbitrators referred to in the first count of the complaint, and had been adjusted and determined by their award. As an additional defense to the eighth count, they interposed a plea of the statute of limitations. To all the others they interposed specific denials. A trial resulted in a verdict and judgment for plaintiffs for $2,236.15 and costs. The cause was brought to this court by appeals from the judgment and from an order denying defendant’s motion for a new trial.
"When the record on appeal was lodged with the clerk, counsel for plaintiffs moved for a dismissal of the appeal from the judgment on the ground that it had not been taken within a year from the date of entry (Rev. Codes, sec. 7099), and of the appeal from the order on the ground that the record had not been filed with the clerk within sixty days after the appeal had been perfected, as prescribed by the rules of this court (Rule IV, subd. 2, 44 Mont, xxvii, 123 Pac. x). The appeal from the judgment was dismissed on the ground stated in the motion, the court reserving decision as to the appeal from the order until final hearing. The motion in this behalf is denied, for the rea son that the record had been filed with the clerk before the motion to dismiss was filed and notice of it given. (Rule IV, subd. 3.)
The motion for a new trial was based solely on the ground of newly discovered evidence material to establish defendant’s eighth counterclaim, which could not with reasonable diligence have been discovered and produced at the trial. The plaintiffs are husband and wife, the wife being defendant’s daughter. Early in the year 1908 they and George Lincoln, a son of defendant, leased from him certain ranches, known as the Lincoln ranches, in Fergus county, with the farming implements, machinery, etc., owned by him thereon. The lease was oral. The terms of it are in some respects not clearly disclosed by the evidence ; but it is apparent that the plaintiffs and their colessee, among their other obligations, assumed that of caring for defendant’s herd of cattle, and in consideration of their services in this behalf were to have a half interest in the increase of it, in steers suitable for beef. This arrangement was, it seems, to continue for five years. At the end of 1908 George Lincoln ceased to be a party to the lease. Thereafter the lease arrangement was continued between the plaintiffs and defendant up to the latter part of the year 1912. Differences had arisen between them as to their respective rights and liabilities under the lease, and, in order to avoid litigation, on November 17, 1912, they entered into a written agreement to submit all these differences to arbitrators named by them, for final adjustment.- It was agreed that the final award should be filed with the clerk of the district court and entry thereof made in the judgment-book by the clerk, under the provision of section 7370 of the Revised Codes. The arbitrators having heard the evidence and made their award, filed it with the clerk on November 23. This action was brought on May 19, 1913. The trial took place in March, 1914, ending on the 9th.
■The amount of recovery sought by defendant under the eighth counterclaim was $3,050, the proceeds of a sale of beef cattle by plaintiffs and their colessee during the year 1908 for which defendant alleged they had failed to account to him. There was a conflict in the evidence at the trial, both upon the question whether the sum demanded was due from the plaintiffs under the contract of lease, and upon the question whether they had accounted for it in the adjustment by the arbitrators.
The facts recited in the foregoing narrative are sufficient to make clear the purport of the affidavits presented in support of the motion. The affidavit of defendant, after a brief reference to the origin and character of his claim, and a specific averment to the effect that his right to the sum claimed had not been adjusted by the arbitrators, alleges: “ On or about the tenth day of March, A. D. 1914, I discovered evidence which will establish the fact that the said moneys so received by the plaintiff Leonie Huffine from the affiant did not belong to her under the terms of the said lease. That on said tenth day of March, A. D. 1914, I discovered a memorandum in writing in the handwriting of the said plaintiff Leonie Huffine, which contains among other things, a clause as follows: ‘We * * * agree to pay rents and taxes and return to A. Lincoln $5,300 which George Lincoln and the Huffines received for the beef which was shipped from the AL herd of cattle in the spring of 1908 or about the time the lease began. ’ That said evidence is new material to the issue, and not cumulative, nor will it be brought to impeach any evidence or testimony of any witnesses who have heretofore been examined in said action. That I did not know of the existence of said evidence and could not by the use of the utmost diligence have discovered and produced the same upon the former trial.” An affidavit by George Lincoln states that he is acquainted with the handwriting of Leonie Huffine, that the memorandum quoted by the defendant was written by her, that he is familiar with the matter stated in defendant’s affidavit, and that he believes those statements are true.
The plaintiffs filed counter-affidavits. That of Leonie Huffine recites that when the question of settlement arose between the plaintiffs and defendant, in order to avoid litigation, they made in writing mutual offers of terms of settlement, exact copies of which are attached; that no other offer was ever made; that in his counter-offer the defendant made no mention of the sum of $5,300; that the parties could not agree upon a settlement upon the basis of any of the offers, and thereupon agreed to submit their differences to arbitration; that upon the hearing by the arbitrators evidence was given on both sides in relation to all the claims existing between the parties, including the claim for which recovery is sought in defendant’s eighth counterclaim; that the arbitrators made their award upon the evidence; and that such award is in full force and effect. It is further alleged that plaintiffs’ offer was delivered to the defendant; that at all times after it was made he had full knowledge of its contents; that after it was made, and prior to the submission of their differences to arbitration, this plaintiff and defendant discussed it; and that the affiant never at any time made the offer to the defendant set forth in his affidavit, the only offer made by her being the one a copy of which she tenders with her affidavit. The affidavit of the plaintiff Chas. M. Huffine avers that a second offer was made to defendant, proposing terms of settlement different from those embodied in the one referred to by Leonie Huffine, which contained no reference to the sum of $5,300 adverted to therein. In all other particulars his affidavit agrees substantially with the affidavit of Leonie Huffine. Both the memoranda referred to are attached as exhibits to his affidavit. The material parts of the memoranda of the two offers are the following:
“No. 1. We turn over 1,075 head of cattle and reserve the right to cut and ship the beef and agree to pay rents and.taxes and return to Lincoln one-half of $5,300, or $2,650, which Geo.. Lincoln and the Huffines received for the beef which was shipped from the AL herd of cattle in the spring of 1908, or about the time the lease began.”
“No. 2. We turn over 1,075 head of cattle, including beef. We pay no rents or taxes; also we are to have all cattle which we may gather in excess of the 1,075 head of cattle, or $40 per head. We select a man, and Lincoln a man, they to select a third man, to cut and ship the beef. Neither Lincoln nor Huffine to have anything to do with the cutting or shipping of the beef. These men also count the cattle.”
The portions of these memoranda quoted are each followed by an enumeration of articles of personal property which were to be delivered to the defendant, including different kinds of grain, colts and hogs, in case either offer should be accepted as the basis of settlement.
The counter-offer by defendant is the following: “A. Lincoln will settle upon following basis, if settled without litigation, to-wit: (1) Huffine to pay all taxes for 1912. (2) Huffine to pay $3,000 for use of property present time. (3) Huffine to pay his share on state land purchase. (4) Huffine to return 1,200 head of cattle; also all the stock and calves of thoroughbred cattle. (5) Huffine to return horses received and one-half increase. (6) Huffine to return 13 sows and 39 pigs. (7) Huffine to return enough hay to winter cattle and horses to May 1, 1913. C8) Huffine to return seed and feed grain that he had and used of A. Lincoln. (9) Huffine to repair ditch as agreed, or pay equivalent of it in money. If the Robbins desert is deeded back, waive claim on ditch.”
At the argument in this court, attention having been called to the denials in plaintiffs’ affidavits that they had never made the offer quoted in defendant’s affidavit, counsel for defendant admitted that the copy of the memorandum attached to plaintiffs’ affidavit, as plaintiffs’ first offer, is a true copy of the original. Their argument, however, is that, if the memorandum had been brought to the knowledge of the jury at the trial, the result would necessarily have been a finding in favor of the eighth counterclaim, and hence that judgment would have gone for the defendant. This argument proceeds upon the assumption that the memorandum embodies a distinct admission by plaintiffs that the defendant is entitled to the proceeds of the sale made in 1908, and that upon another trial it will without question establish his right to recover them. If we accept the assumption of counsel as correct, the conclusion must follow, for, though the evidence is cumulative in character, the legal effect of it would be to overcome any denial of their liability by the plaintiffs. But the effect to be given to the writing is to be determined, not by looking alone to the excerpt referred to, but by an analysis of all the memoranda in connection with the circumstances under which they were written. There is an apparent inconsistency in the statements of plaintiffs as to all the circumstances, in that Leonie Huffine states that only one offer was made by plaintiffs and the counter-offer by defendant, whereas Chas. M. Huffine states that plaintiffs made a second offer; nevertheless it stands admitted by the d_efendant, because he- did not file an affidavit contradicting those of plaintiffs, that the memoranda were offers and a counter-offer made in an effort by the parties to adjust their differences and thus avoid a resort to litigation. In legal effect, then, the offer of plaintiffs is not to be construed as an admission that anything was due defendant, but as an offer of a compromise. If, therefore, it had been offered in evidence at the trial, it would not have been admissible. (Rev. Codes, sec. 8040; Scott v. Wood, 81 Cal. 398, 22 Pac. 871; 1 Elliott on Evidence, 646; 2 Wigmore on Evidence, 1061.) It would have been held wholly incompetent, and the like ruling would necessarily be made with reference to it on another trial. Hence it cannot be regarded as material within the requirement of the statute authorizing the granting of a new trial on the ground of newly discovered evidence.
(Rev. Codes, see. 6794.) Under
the well-settled rule, newly discovered evidence, offered as a ground for a new trial, must not only be material, but so substantial in character that it would probably produce a different result on another trial. (State v. Matkins, 45 Mont. 58, 121 Pac. 881, and cases cited.) It is only when the application makes out a case of this degree of cogency that a trial court should be held guilty of an abuse of discretion in denying it. There must be an end to litigation. The prevailing party is presumptively entitled to the relief awarded him. The presumption thus established in his favor may not be overturned until a cogent reason appears why the discretion vested in the trial court should be exercised in favor of his adversary. Hence, no substantial reason appearing why plaintiffs should be deprived of their advantage, the application was properly denied. The order is affirmed.
Affirmed.
Mr. Justice Sanneb and Mr. Justice Holloway concur.
|
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] |
PER CURIAM.
The application of relators herein for a writ of review is, after due consideration, by the court denied.
|
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ME. CHIEF JUSTICE BEANTLY
delivered the opinion of the court.
Application for mandamus. The affidavit in support of the application, stripped of immaterial matters, discloses these facts:
On July 10, 1916, a petition was filed with the clerk of Sheridan county, addressed to the board of commissioners, asking that an election be ordered by the board to letermine whether or not intoxicating liquors should be sold within the county. The board convened on July 20 to consider the petition. Between that date and July 22, and while the board had the petition under consideration, a supplemental or additional petition was presented. This the board received and considered with the original petition. There were in the meantime presented by a number of signers of these petitions other petitions asking that their names be omitted from the original and supplemental petitions. Later some of these latter presented still other petitions requesting that their names be retained in the list of signers and considered for the purpose of determining the sufficiency of the original and supplemental petitions. The board thereupon adjourned until July 31. After having had all the petitions under consideration from that date until August 2, the board granted the withdrawal petitions, disregarded the petitions retracting the withdrawals, and, concluding that the signers of the original and supplemental petitions who possessed the statutory qualifications to sign them were not sufficient in number, refused to order the election. The board made findings in substance as follows: (1) That the original petition was signed by 1,289 tax-paying electors; (2) that the supplemental petition bore the names of 192 tax-paying electors; (3) that the whole number of tax-paying electors whose names appeared on both petitions was 1,481; (4) that of these, 457 had withdrawn their names; (5) that after deducting the names so withdrawn, there remained upon the original and additional petitions the names of 1,024 tax-paying electors; (-6) that when these petitions were presented to the board there were in the county 3,658 persons who were tax-paying electors; (7) that to authorize the calling of an election as requested, the petitions must have qualified signers to the number of 1,220,or at least one-third of all those who were qualified to sign them; and hence that the petitions did not bear the required number. In addition to the foregoing recitals, the affidavit alleges that the original petition bore the signatures of 1,486 persons who were tax-paying electors, or more than one-third of the electors of the county who were qualified to sign it; that the supplemental petition contained additional signatures, to the number of 208, of persons who were qualified to sign it; that the aggregate of the signers was therefore 1,694; that of the signers of the original petition the board wrongfully omitted from the count 197 names, and from the supplemental petition 16 names, thus reducing the number of qualified signers to 1,481; and that of the 457 persons who requested to have their names withdrawn, 185 retracted the request. It is alleged further that the names of all those who signed the original and supplemental petitions appear upon the assessment-roll for the year 1915, and also upon the official register of voters for the year 1916.
When the board announced its decision, the relator, a resident and tax-paying elector of the county and qualified to sign a petition for an election, applied to the district court for a writ of mandate to compel the defendants to reassemble as a board and order the election. It is demanded that the defendants be required to reassemble and include in the count the names omitted from the signers of the original and supplemental petitions, and also the names of those who retracted their withdrawals therefrom, and that they, as a board, order the election. In answer to the alternative writ, the defendants appeared by general demurrer and motion to quash, on the ground that the facts stated in the affidavit did not warrant relief. The demurrer and motion were sustained, and judgment went for the defendants. The relator has appealed.
1. At tbe argument the attorney general submitted a motion to dismiss the appeal, for the reason that he had not been served with a copy of the transcript nor with copies of defendants’ brief, as required by Rule IX (123 Pac. xii), and subdivisions 2 and 7 of Rule X (123 Pae.'xii) of this court. From a technical point of view the motion was well made. Inasmuch, however, as service in both particulars was had before the submission of the motion and the state has suffered no inconvenience by the delinquency, the motion is denied. The delinquency by counsel for the relator was evidently due to oversight. This being so, the dismissal would be without prejudice to another appeal. ■ The granting of the motion would therefore serve no useful purpose.
2. Counsel submit the question, What course must the board have pursued in order to determine the qualifications of the signers of the original and supplemental petitions and the genuineness of their signatures ? The application was addressed to the board in pursuance of section 2041 of the Revised Codes. Considering this section in State ex rel. Eagye v. Bawden, 51 Mont. 357, 152 Pac. 761, we held that- the two qualifications which the signers must possess are: (1) That they must be qualified electors, and (2) that they must be taxpayers. That they possess the latter qualification, it was held, must be shown exclusively by the presence of their names upon the last assessment-roll. When this has 'been ascertained, it must further be determined whether they are qualified electors, or, in the language of the statute, “voters who are qualified to vote for members of the legislative assembly.” The latter expression must be understood to be neither more nor less comprehensive than the former, for all persons who possess the qualifications enumerated in section 2, Article IX, of the Constitution are qualified electors. How to ascertain that the signers come within this class, the statute does not point out. That a person is a taxpayer is not an evidence of the fact that he is also a qualified elector, for he may be a nonresident or an alien, or be affected by some other disability. The assessment-roll could not disclose any in formation on the subject. So the official register of voters, while it may properly be consulted for such information as it contains, is not conclusive as to who are and who are not qualified electors. A particular name appearing thereon may be that of a person who has removed from the state, or who has died or who has otherwise lost his right to vote. Again, the name of a person may be signed to the petition who is both a taxpayer and a qualified elector within the meaning of the Constitution, and yet his name is not to be found upon the official register. He is none the less a qualified elector and entitled to sign the petition. It is only when the statute requires petitions by electors to initiate proceedings, such as we are now considering, to be signed by registered voters, that the signers must be such. “Registration is no part of the qualifications of an elector and adds nothing to them; it is merely a method of ascertaining who the qualified electors are, in order that abuses of the elective franchise may be guarded against.” (State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297.) The statute might have prescribed the requirement, as it does in case of a petition to initiate proceedings to establish a new county (Laws 1915, Chap. 139, p. 301); but, as it does not, an elector whose name is on the last assessment-roll is qualified to sign a petition for all the purposes of this particular proceeding. In State ex rel. Eagye v. Bawden, supra, referring to the office served by the assessment-roll, this language was used: “The last sentence of section 2041 commands the board to determine the sufficiency of the petition by reference to the last assessment-roll. The provision is exclusive. The board is not authorized to consult any other source of information or to receive evidence which does not appear upon that roll.” Taken without reference to the particular point under discussion, the statement is perhaps misleading. It would confine the board to the examination of the assessment-roll only for all purposes. That this is not the import of the excerpt quoted is clear when read in its proper connection. Since the course to be pursued by the board in ascertaining whether the signers are qualified electors is not pointed out, it may undoubtedly resort to any competent source of information available, including the official register, the tes-, timony of witnesses, and, perhaps the personal knowledge of the individual members. (State ex rel. Bogy v. Board of County Commrs., 43 Mont. 533, 117 Pac. 1062; State ex rel. Lang v. Furnish, supra.)
In view of the foregoing remarks, the allegation in the affidavit that the names of all the petitioners appear upon the official register was not necessary. Nevertheless its presence therein does not impair the relator’s title to relief, if the material facts stated warrant it.
3. It will be observed that the affidavit alleges that the names of the signers of the petitions appear upon the assessment-roll for the year 1915. Under section 2545 of the Revised Codes, the assessor is required to have his assessment-book completed on or before the second Monday of July. It must immediately then be delivered to the county clerk. (See. 2547.) For the year 1916 the assessor was required to have his book completed on or before July 10, because the second Monday fell on that date. In this connection the inquiry is suggested by counsel for defendants, whether the roll of 1916 or that of 1915 should have been used by the board to ascertain the tax-paying qualifications of the signers of the petitions. The purport of the suggestion is apparent. The statute constitutes the assessment-roll which is latest in date the only evidence by which to determine the tax-paying qualification of the signers of the petition. As all those who were taxpayers in 1915 are not necessarily taxpayers in 1916, the affidavit does not show that the names of the signers were upon the last assessment-roll, and therefore does not state a cause warranting the relief demanded. The suggestion is devoid of merit. That the reference in the statute is to the completed assessment-book, which is the basis for the levy of taxes in the county for any year, is made apparent by noting the steps necessary to make it up in its final form: The assessor must list all property in his county in an assessment-book under appropriate headings. (Rev. Codes, sec. ,2543.) When this has been completed and delivered to the clerk as directed, by sections 2545 and 2547, supra,, the clerk gives notice of the fact by -publication, and also that the board of commissioners will meet to equalize the assessments. (Sec. 2547.) The board sits for this purpose from time to time, from the third Monday in July until the second Monday in August. (Sec. 2572.) Its powers and duties in relation to the individual assessments and the changes it may make in them are defined in sections 2573 to 2581. The changes wrought by it must be noted by the clerk and entered on the book in the proper places. (Sec. 2582.) At the conclusion of its sitting the board must fix the rate of taxation for the year. (See. 2598.) The clerk then ascertains the gross sum of all the assessments and transmits it to the state auditor and the state board of equalization. (See. 2606.) Thereupon the assessments of the several counties, as shown by the several assessment-books, are equalized by the state board of equalization. (Secs. 2583-2592.) Such changes as this board may have made -must be noted and entered upon the assessment-book by the county clerk, who must also enter therein the assessments made by the state board upon property assessable only by the state board. (Secs. 2604-2607.) The sum of the corrected assessments of the several counties, with the additions made by the state board of equalization, is the basis for taxation for state purposes at the rate fixed biennially by the legislature. (Sec. 2593.) When the assessments have been equalized and the necessary changes made, the clerk must sum up the values of the different kinds of property assessed to each owner, and also the gross amount of all assessments as fixed by the equalizations. (See. 2604.) He must then calculate and extend to the proper column the amount due from each taxpayer for the year, at the combined rates fixed by the county board and the legislature. (Sec. 2608.) The book is then completed and becomes the basis — or the assessment-roll— for the payment of taxes for the current year. In the even-numbered years it must also be used as the basis for the classification of the several counties provided by section 2975. In view of these considerations it requires no argument to demonstrate that the assessment-book delivered to the clerk on July 10 was only a tentative basis for the levy of taxes for the year 1916, and did not become an assessment-roll until completed by the clerk as above indicated. The roll for the year 1915 was the only one to which reference could be had.
4. For the purposes of this appeal the allegations of fact contained in the affidavit must be accepted as true. (State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804.) It is alleged that the signers of the two petitions to the number of 1,694 were tax-paying electors. This number includes the names (213) dropped from the petitions. Accepting these allegations as true, it necessarily follows that the action of the board was wrong, whatever may have been the basis of it — whether it concluded that the excluded names were not those of taxpayers, or that they were not electors, or that their signatures were not genuine. Counsel argue, however, that the findings which are set out in the affidavit traverse these allegations, and hence that there is disclosed on the face of the affidavit itself an issue of fact which requires an affirmance of the judgment of the district court. This process of reasoning we cannot appreciate.
It was not necessary that the findings be set out in the affidavit. This was evidently done in order to disclose fully the result of the board’s proceedings; but that they were so set out does not impair in any way the force of the allegation that they were without foundation in fact. The truth of them was the ultimate issue tendered by the relator. Instéad of meeting the issue as tendered, the defendants were content to admit their falsity and tender an issue of law as to the sufficiency of the allegations impeaching them. How, it may be asked, can findings which have no basis in fact become impregnable the moment they are assailed by one who has been aggrieved by them? If counsel’s position is maintainable, then it matters not that the findings were the result of the most arbitrary course by the board; they must nevertheless stand as their own vindica tion. The material fact being admitted as true, viz., that the omitted names were the genuine signatures of tax-paying electors, it was to be accepted as true for all purposes. If these signers were taxpayers and qualified voters, there was nothing left for the board but to perform its imperative duty to order the election. It is of no avail for counsel to say that the board was exercising judicial powers, and in support of its action to invoke the aid of the presumption that its official duty was legally performed. The presumption disappears in face of the admitted fact that the board wrongfully eliminated the names of 213 persons who were qualified to sign the petition, and then refused to order the election. That under such circumstances relief will be granted by mandamus is no longer open to discussion in this jurisdiction. The following cases, though differing from this one in their facts, are amply sufficient to show that the rule is firmly established: State ex rel. Stringfellow v. Board of County Commrs., 42 Mont. 62, 111 Pac. 144; State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804; State ex rel. Hauswald v. Ellis, 52 Mont. 505, 159 Pac. 414; State ex rel. Furnish v. Mullendore, ante, p. 109, 161 Pac. 949.
The original and supplemental petitions were signed by 1,694 persons who were tax-paying electors. Assuming that the board properly excluded the names of all the 457 persons who withdrew, there remain 1,237 qualified signers, or more than one-third of the tax-paying electors in the county. The district court should have overruled the demurrer and motion, and heard the application on its merits.
5. But counsel for defendants contend that the board was without authority to receive and consider the supplemental petition after it had convened on July 20 to consider the original petition. If this contention is sustained and the 457 withdrawals be deducted from the 1,486 signers of the original petition, the remainder is 1,029, or less than the required number. In support of their contention, counsel rely with apparent confidence on the decision in State ex rel. Lang v. Furnish, supra. While they admit that the New Counties Act. (Laws 1913, Chap. 133), which was under consideration in that case, contains an express provision prohibiting the filing of petitions in any form after the date set for the hearing, they insist that though section 2041, supra, does not contain any such express provision, yet since the order must be made “upon application by petition,” the implication obtains that the petition, the basis of the order, must be complete when taken up for examination, and cannot thereafter be aided by additional signatures by way of a supplemental petition. Inasmuch as the statute does not expressly prohibit the presentation of supplemental petitions, we are not disposed to give it the force which counsel would have us give it. True, a sufficient petition is a necessary prerequisite to jurisdiction by the board to order the election. So a sufficient complaint is necessary to enable a court to grant relief in an ordinary action. This necessity does not preclude the court from permitting amendments by an addition to the pleading of omitted material allegations at any stage of the proceeding, in order to furnish a basis for the relief demanded. The statute supra does not provide for an adversary hearing; but assume that this is implied, it seems not out of place to make the additional assumption that the implication is equally as strong that the hearing shall be conducted according to the analogies of ordinary actions. But whether these implications are permissible or not, in view of the fact that proceedings had by a board of commissioners in such cases are always more or less informal, we can see no legal objection to the reception of supplemental petitions at any time during the course of its deliberations, until the matter is submitted for final decision. This view relieves the proceeding of all purely technical features, and at the same time requires the board to observe, and be controlled by, the substance of the application rather than its form. We know of no authority directly in point. The holding in the case of Horton v. Botts, 158 Ky. 11, 164 S. W. 352, cited by counsel for relator, is more nearly in accord with that in State ex rel. Lang v. Furnish, supra, in that the Kentucky court held that under a local option statute, supplemental petitions may be filed at any time before the date set for the hearing is fixed, and not thereafter. It does lend support to the view that the petition is in the nature of a pleading, and in order to furnish the jurisdictional fact, viz., a sufficient number of qualified signers, it may be amended by supplemental petitions disclosing it.
6. Counsel on both sides correctly assume that it was the duty of the board to permit such of the petitioners as desired to do so to withdraw their names from the petition. (State ex rel. Lang v. Furnish, supra.) Counsel for the relator contend that it was also incumbent upon the board to permit those who had withdrawn to revoke their withdrawals and to be counted as petitioners. In the case last cited, after declaring the right of a signer of the petition to withdraw, this court said: “Indeed, the above rule is a necessary inference from the very nature of the right of petition, and of necessity applies, not merely to the petitions themselves, but to the withdrawals, so as to authorize the withdrawal of a withdrawal.” This remark had reference to a petition for the exclusion or withdrawal of territory from a proposed county, and was intended to apply only to a withdrawal of such a petition. As is apparent from the context, it had no reference to a revocation by petitioners of a withdrawal of their names from the petition and their reinstatement as original signers. Now, it may be conceded that the right of petition from its nature implies the right of withdrawal, because, upon further discussion and more mature reflection as to the desirability of the accomplishment of the purpose sought by the petition, the petitioner may change his conviction; yet it is not readily apparent that after he has once signified to the body to whom the petition is addressed that his name is withdrawn, he has .a clear legal right to revoke his withdrawal and be restored to his original position.
It was held by the court in Horton v. Botts, supra, that the withdrawal may be revoked at any time before it has been acted upon by the petitioned body, restoring the petitioner to his original position. It will be observed that the revocation had been permitted by the county court, and the propriety of it was afterward drawn in question in a contest of the election ordered and held upon the basis of the petition as finally considered. The court held in effect that it was within the discretion of the county court to which the petition was addressed to pursue the course it did. In a dissenting opinion, however, Mr. Justice Hannah denied the right of withdrawal in the first place, giving his reason therefor as follows: “There is nothing obscure nor complicated about a petition for a local option election. Every man who signs such a petition knows its import. Because of that knowledge, he should not be permitted to play fast and loose with the court and with the other signers. When the petition is filed, his right to withdraw therefrom should terminate. To hold otherwise is to pervert the legislative intent to add to the statute that which it does not contain, and to open the door to treachery, corruption and fraud.” We think the considerations adduced by Mr. Justice Hannah fully justify the conclusion that the right of revocation is at best not absolute, and ought not to be enforced by mandamus.
The judgment is reversed and the district court is directed to overrule the demurrer and motion.
Reversed, and remanded.
Mr. Justice Holloway concurs.
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
This is an appeal from an order granting a new trial. The order is general, but the grounds urged in support of it were based upon the action of the trial court in directing a verdict for the defendants and upon sundry .rulings in the admission and exclusion of evidence. If substantial error occurred in respect to any of these, the order must be affirmed upon the assumption that it was made because of such error.
The action is in ejectment, and, according to the complaint, involves certain parcels of land situate in the eity of Helena. Of these, the plaintiff, respondent here, alleges that he is the owner and entitled to the possession; he also avers that on May 7, 1914, the defendants without right or title ousted and ejected him therefrom, and that they have ever since unlawfully withheld, and now unlawfully withhold, such possession from him. The answer is elaborate. Its effect is a general denial; a plea of title and right to possession under and by virtue of two certain tax deeds issued to Henry Adami and John Steinbrenner; a plea of adverse possession since March 1, 1897, under said tax deeds; separate pleas of Code sections 6432, 6436, and 2654 (as amended by Chapter 50, Session Laws of 1909), as statutes of limitation; and a plea of estoppel to deny title, based upon plaintiff’s knowledge and acquiescence since March 1, 1897, in the procurement of said tax deeds by Adami and Steinbrenner, the delivery of the property to them, and the payment by them of large sums of money for care of the property, improvements thereon, and taxes, as well as upon actual recognition by the plaintiff of their ownership and dominion over said property in virtue of said tax deeds. The affirmative allegations of the answer were put in issue by the reply.
I. Upon the trial the plaintiff, to show title, established that on August 2,1893, he was the owner of the premises in question; that on that day he made a deed of assignment thereof for the benefit of his creditors to Antone Horsky, and that on May 7, 1914, Antone Horsky reconveyed the same to him by formal deed, reciting, among other things,-that “the conditions, terms and trusts of said deed of assignment” had been completed and fulfilled. The sufficiency of this showing was challenged by a motion for nonsuit, and that challenge is renewed here upon the ground that without proof aliunde of full compliance with the conditions, terms and trusts of the deed of assignment, the reconveyance had no probative value because, under section 4549, Revised Codes, every transfer or other act of the trustees of an express trust in relation to real property, in contravention of such trust, is absolutely void. This contention misplaces the burden of proof. Whether section 4549 be viewed alone and held, as in New York, to mean that such conveyances are absolutely void into whatever hands they come (Briggs v. Palmer, 20 Barb. (N. Y.) 392; Russell v. Russell, 36 N. Y. 581, 93 Am. Dec. 540), or considered.in connection with provisions similar to section 5386, and held, as in other states, to mean that such conveyances are voidable in the hands of a grantee with notice at the suit of the party aggrieved (note, 19 Am. St. Rep. 267, 297), it is perfectly clear that not all conveyances by such trustees are prima facie void or voidable. They are void or voidable only if made in contravention of the trust, and as this presumably is not the character of any given conveyance, the burden is necessarily upon him who asserts, to prove that such is its character.
II. The defendants grounded their resistance upon title under and by virtue of the tax deeds. These were made and delivered in purported pursuance of certificates previously issued upon sales for delinquent taxes for 1893 and 1894, and were received in evidence over the plaintiff’s objection that they were inadmissible without a showing of compliance with the precedent steps required by law for their issuance, and because, being deficient in description and showing a sale en masse, they are void upon their face. Later the plaintiff himself offered the eertifi cates of sale upon which the deeds purport to be based, and also the notices of application for the deeds, for the purpose of affirmatively showing that the statutory prerequisites had not been met; and these were all rejected as immaterial and irrelevant, in view of the provisions of Code section 2654, as amended by Chapter 50, Session Laws of 1909.
(a) The deeds in question were issued February 26, 1897. An essential prerequisite to their issuance was that the holders of the certificates should, thirty days before applying for such deeds, give, in a certain manner, a certain kind of written notice of their intention to apply for such deeds (Laws 1891, p. 114, secs. 128, 129; Pol. Code 1895, secs. 3895, 3896 [Rev. Codes, secs. 2651, 2652]), and it is settled in this state that a tax deed is not even prima facie evidence that this was done. (Cullen v. Western Mtg. & W. Title Co., 47 Mont. 513, 527, 134 Pac. 302.) The deeds, therefore, should not have been received in the first instance without proof of that fact, unless, as the defendants insist, the effect of Code section 2654, as amended, is to foreclose all inquiry into such matters.
(b) The deed given for the taxes of 1893 recites the'steps leading up to the sale, and says: “That the least quantity or smallest portion of the property assessed, situate, lying and being within the said county of Lewis and Clark, state of Montana, and described thus: Part of lot number fourteen (14) Thompson Placer being 214 feet on the east side of Main Street and 216 feet on the west side of Main Street and 224 feet on the east side of Gulch Street, and 224 feet on the west side of Gulch Street, also lot fifteen (15) Thompson Placer, and lot ten (10) and eleven (11) block five hundred and sixty - nine (569) Central Addition was by such county treasurer aforesaid, on the nineteenth day of January, 1894, in accordance with law and to pay said taxes, charges and costs delinquent as aforesaid offered at public auction in front of the county courthouse of said county of Lewis and Clark in the city of Helena therein. That at said auction Ella L. Knowles was the bidder who was willing to take the least quantity or the smallest portion of the said land and pay the taxes, costs and charges due thereon, which taxes, costs and charges (including fifty cents for the certificate of sale) amounted to the sum of two thousand sixty-three and 70/100 dollars; that the said least quantity or smallest portion of the said land, lying and being within the said county of Lewis and Clark, state of Montana, described as follows, to-wit: One-half of part of lot 14 Thompson Placer, being 214 feet east side of Main Street, and 216 feet west side of Main Street, and 224 east side of Gulch Street, and 224 feet west side of Gulch Street, also lot 15 Thompson Placer, and lots 10, 11, block 569, Central Addition was by the said R. P. Barden as county treasurer aforesaid, struck off to the said Ella L. Knowles, who paid the full amount of the said taxes, costs and charges and therefore became the purchaser of the last-described piece or parcel of land; that the said real estate last aforesaid was sold for taxes and subject to redemption pursuant to the statute in such cases made and provided” — and is therefore granted and conveyed to John Steinbrenner and Henry Adami, the assignees of such purchasers. In neither description above quoted, nor anywhere else in this deed, is there anything to tell where in Lewis and Clark county the property offered, sold, and conveyed is situate; nor, drawing upon information otherwise had, that the property is in Helena, is it possible to visualize or locate the part of lot 14, Thompson Placer, which was offered for sale. We may infer that Main and Gulch Streets' run approximately north and south, since they have east and west sides, so that the land, considered as a single tract, has a specified frontage on each side of these streets; but at what points on each of these streets the frontage begins and ends, and how far back of such frontage the property goes, we cannot tell. These frontages are mere lines, and the utmost derivable from the description is that somewhere within the limits of lot 14, Thompson Placer, there is a widening tract of indefinite dimensions which crosses the east side of Main Street with a spread of 214 feet, the west side with 216 feet, and Gulch Street with 224 feet. Moreover, not all the part of lot 14, Thompson Placer, which was offered was sold, but only one-half of said part; which half, or whether an undivided half interest, we are not informed. A description in a tax deed which is so indefinite that the land intended to be conveyed cannot be identified is ineffective. (37 Cyc. 1445 et seq.; Black on Tax Titles, secs. 405-407; Blackwell on Tax Titles, sees. 758-769; McRoberts v. McArthur, 62 Minn. 310, 64 N. W. 903; Moran v. Thomas, 19 S. D. 469, 104 N. W. 212; Keane v. Cannovan, 21 Cal. 291, 301 et seq., 82 Am. Dec. 738; Dickinson v. Arkansas City Imp. Co., 77 Ark. 570, 113 Am. St. Rep. 170, 92 S. W. 21.)
(c) As a matter of fact, however, the deed shows on its face— if the property be in the city of Helena — that the part of lot 14, Thompson Placer, attempted to be described is not and cannot be a single tract. It is severed by both Main and Gulch Streets, so that we have at least three, and perhaps four, separate, noncontiguous parcels, vis., a parcel of unknown depth with 214 feet frontage on the east side of Main Street; a parcel with 216 feet frontage on the west side of Main Street, and (if Gulch Street be the next parallel street on the west with no alley intervening) a 224 feet frontage on the east side of Gulch Street, or else two parcels of unknown depth having these sepárate frontages ; and a parcel of unknown depth with a frontage of 224 feet on the west side of Gulch Street. (North Beal Estate, Loan etc. Co. v. BUlings L. & T. Go., 36 Mont. 356, 367, 93 Pac. 40.) Besides these, we have lot 15, Thompson Placer, and lots 10 and 11 in block 569, Central Addition — all offered for sale and sold en masse. Such a sale has been thrice condemned by this' court as in contravention of the Revised Statutes of 1879, without reference to any provision such as section 115 of the Revenue Law of 1891. (Casey v. Wright, 14 Mont. 315, 36 Pac. 191; North Beal Estate, Loan etc. Co. v. Billings L. & T. Co., supra; Cullen v. Western Mtg. etc. Go., supra.) Every consideration which moved to the result in those decisions applies here — the assessment-book must list all the property within the county, specifying open land by legal subdivisions or by metes and bounds, and city property by lot and block, with the values extended, a list of the delinquent property must be filed and advertised, “showing the amount of taxes and costs due opposite each name and description,” the county treasurer must sell the property advertised, “commencing at the head of the list and continue in alphabetical or numerical order of lots and blocks until completed” — and that result is aided by the clear intent of section 115 of the Revenue Act of 1891, to-wit, that in the case of any parcel of land offered for sale the owner, or if he does not, the treasurer may designate a portion less than the whole to be sold, and only to the county may the entire property assessed be struck off for want of purchasers. (Rush v. Lewis & Clark County, 36 Mont. 566, 93 Pac. 943; Id., 37 Mont. 240, 95 Pac. 836; Dyke v. Whyte, 17 Colo. 296, 29 Pac. 128.) Certain cases from California — Doland v. Mooney, 79 Cal. 137, 21 Pac. 436; Hewes v. McLellan, 80 Cal. 393, 22 Pac. 287; Rollins v. Woodman, 117 Cal. 516, 49 Pac. 455; Hayes v. Ducasse, 119 Cal. 682, 52 Pac. 121 — are cited to support the view that the sale in question here was conformable to section 115 of the Revenue Act of 1891. In each of these eases the property offered was a single lot or parcel, and the effect of each decision is that, where the owner of a single lot or parcel does not require the offer of a portion thereof or of an interest therein, the treasurer may sell the whole lot or parcel if that is the least quantity anyone will take and pay the tax, something entirely different from selling a number of separate, noncontiguous parcels en masse. We entertain no doubt that such a sale as this deed discloses was in contravention of the law and the deed which shows it is void on its face. (North Real Estate Loan etc. Co. v. Billings L. & T. Co., supra; Rush v. Lewis & Clark County, supra.)
The deed for the taxes of 1894 is open to the same reflections, except that it does not sell one-half of part of lot 14, Thompson Placer, and does make it clear beyond the need of inference that the part of lot 14, Thompson Placer, offered and sold is composed of separate, noncontiguous parcels. So, too, the evidence establishes this latter fact, and shows how difficult, if not impossible, would be the task of applying to any of these parcels the description set forth in the deeds. Since these deeds are void on their face, further consideration of the proof in this respect, or of the offer to show that the other statutory requirements were not met, is unnecessary.
Besides relying on the provisions of section 2654, Revised Codes, as amended, the defendants seek to escape the effect of the above condition because, as they say, the description is substantially the same as that contained in the assessment-lists for the years 1893 and 1894 signed by the plaintiff, and in similar lists signed by him for the years prior to 1893 on which he paid taxes, because he was present when the sale for the 1894 taxes was had and made no objection to the method of it, and because it was at his instance that the purchaser to whom the property was struck off appeared. We do not see that this is decisive. Tax titles are not derived from the fee, but are antagonistic to the fee; there is no privity between the holder of the one and the holder of the other; neither owes any duty to the other nor is estopped, because of his situation, from making any claim against the other. (Hussman v. Durham, 165 U. S. 144, 147, 41 L. Ed. 664, 17 Sup. Ct. Rep. 253; Crum v. Cotting, 22 Iowa, 411.) If, therefore, it be a fact that the plaintiff signed, and in the years before had paid taxes upon, lists containing similar descriptions, the utmost to be said of it is that such descriptions might have sufficed to authorize the sale of his lands; but it was the lands — not the descriptions— that were to be sold for the delinquent taxes, and the duty of the treasurer was to sell them parcel by parcel, describing each in his certificate and deed so that each parcel, with the amount paid for it, could be identified. This the treasurer failed to do, and his failure cannot be excused or corrected by anything that plaintiff said or did about the lists. Moreover, the plaintiff testifies that he had nothing to do with describing the property in the assessment-lists; that though he knew the ground, he could not have described it in writing, and that he signed the lists as prepared by the assessor, believing that he would not be taxed for any property but his own. Hence the whole matter, if material, was a question for the jury. Nor was the plaintiff called upon to object to the method of the sale. He was not then the record owner of the property, but, conceding that, as the party ultimately interested in it, he could have made objection, there is nothing to show that the treasurer sold as he did, or the purchaser bought as he did, in consequence of the plaintiff’s silence. He had the right to assume that the treasurer was proceeding according to law, and neither his failure nor that of the purchaser to realize the contrary could make legal what had no validity.
• III. Error is claimed because of the rejection of plaintiff’s offers of proof numbered 1 and 2, and the order directing the jury to find for the defendants. Offer No. 1 is not entirely intelligible to us; but the purpose and effect of offer No. 2 are perfectly clear. The defendants had pleaded, and at the trial relied upon, adverse possession under the tax deeds for more than ten years, claiming the bar of sections 6432 and 6436, Revised Codes. While these deeds, being void on their
face, were ineffectual to constitute title, they were evidence of a claim of title ample to sustain a possessio pedis (Morrison v. Linn, 50 Mont. 396, 147 Pac. 166), if not, as some authorities insist, color of title sufficient, under general statutes of limitation, to support adverse possession of the lands adequately described. (Wood on Limitations, sec. 259; note, 27 L. R. A. (n. s.) 339 et seq.)
So that, as a portion at least of this property was in the actual possession of the defendants, the question whether such possession was adverse became from this point of view, a material one. The position of the plaintiff was that Adami and Steinbrenner went into possession under an agreement made in 1896 to hold the property and pay the moneys due thereon for their obligations and outlays, from the rents and profits or from the proceeds of any sales which might be made, the property or residue thereof to be after such payment conveyed back to the plaintiff. This the evidence offered tended to show, and such showing, coupled with other evidence offered and received, to the effect that no repudiation of this agreement occurred until 1914, would hare made a case for the jury, so far as the bar of sections 6432 and 6436 is concerned. So, too, the issue made by the pleadings touching the estoppel of plaintiff to deny title in Adami and Steinbrenner under the tax deed, based on plaintiff’s knowledge of their procurement of the tax deed, the delivery of the property to them, and the payment by them of moneys for upkeep and taxes was for the jury; for these very circumstances are fatal to the estoppel if, as the plaintiff asserts, they occurred in consequence of the agreement last referred to. As to the alleged recognition by the plaintiff of the ownership and dominion over the property by Adami and Steinbrenner in virtue of the tax deeds, the evidence was conflicting. It must be held, therefore, that in the rulings above mentioned there was error sufficient to command a new trial, unless the entire matter was settled and foreclosed by the provisions of section 2654, as amended by Chapter 50, Session Laws of 1909.
IY. We come, then, to the force and effect in this case of the section last mentioned. It provides that: “No action can be maintained to set aside or annul a tax deed upon any ground whatever, unless the action is brought within two years from and after the date of issuance of such tax deed; provided, that any existing right of action to set aside or annul any tax deed, heretofore issued, shall be barred unless instituted within two years from and after the passage and approval of this Act.” This action was commenced on May 9, 1914, more than five years after the enactment, and its purpose is to have set aside or annulled the instruments on which the defendants’ assertion of title and right to possession is based. If these instruments can be considered tax deeds in the sense of the statute, then the statute applies, and all the rulings above mentioned may be defended or ignored. This, however, cannot be done, because these instruments are, as shown above, void on the face of them; they are not deeds, but nullities. In Cullen v. Western Mfg. etc. Co., supra, we had occasion to consider this statute. Holding it to be a special or short statute of limitations, we said, in effect, that it cannot be invoked to buttress a tax deed void upon its face; and, as this is in harmony with the vast weight of authority (Davidson v. Wampler, 29 Mont. 61, 70, 74 Pac. 82; McGillic v. Corby, 37 Mont. 249, 254, 17 L. R. A. (n. s.) 1263, 95 Pac. 1063; note, 27 L. R. A. (n. s.) 347 et seq.; Nind v. Myers, 15 N. D. 400, 8 L. R. A. (n. s.) 157, 109 N. W. 335; Lowenstein v. Sexton, 18 Old. 322, 90 Pac. 410, 411; Moore v. Brown, 11 How. (52 U. S.) 414, 13 L. Ed. 751; 5 Rose’s Notes on U. S. Reports, pp. 44, 45; Redfield v. Parks, 132 U. S. 239, 250, 33 L. Ed. 327, 10 Sup. Ct. Rep. 83; Page v. Gillett, 47 Colo. 289, 107 Pac. 290; Salmer v. Lathrop, 10 S. D. 216, 72 N. W. 570), we cannot hesitate to say that these instruments are not within the statute, and were not effectual to start its operation.
V. Counsel earnestly insist that the order granting a new trial overturned a result which the record shows to have been right, whether viewed from the position of the plaintiff or from that of the defendants. They argue that the plaintiff relied on title through the assignee, whose deed was proved by them to be without authority, because their obligations had not been paid. It may be doubted whether the defendants are in position to make this contention, as they do not claim under the trust established by the deed of assignment, but in hostility to it. However that may be, there was evidence sufficient to take to the jury the question whether in point of fact the obligations intended to be secured by this deed of assignment had been paid.
Ample reason appearing for the order appealed from, the same is accordingly affirmed. Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied January 25, 1917. '
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] |
Opinion
PER CURIAM.
Original action in quo warranto by the relator to have determined his title to the office of state auditor. The relator and the respondent, both eligible to hold the office, were respectively the duly nominated candidates of the Republican and Democratic parties to be voted for at the election held on November 7, 1916. There was also a candidate of the Socialist party, but the vote cast for him was so relatively small that reference to it may be omitted. The basis of the relator’s claim as set out in his complaint may be stated, in substance, as follows: According to the returns as finally canvassed, the relator received throughout the state 73,184 votes, and the respondent received 73,845 votes— an apparent majority for .the respondent of 661. Among the votes so cast and counted are those cast by means of voting machines in twenty-eight of the sixty-eight precincts of Silver Bow county, whereof the relator received 3,690 and the respondent 5,125, all of which should be rejected as illegal because not cast by ballot as required by section 1, Article IX, of the Constitution, and because the machines, if their use can be constitutionally proper, do not comply with the statute which assumes to authorize them. These votes eliminated, a majority for the relator of 774 is disclosed, thus vesting title to the office in him.
1. The first contention is that, since the section of the Constitution supra requires “all elections by the people shall be by ballot,” every vote cast at an election must be by means of a piece of paper on which are printed or written the names of the persons voted for, with a proper designation of the office each is intended to fill, delivered to the judges of election; in other words, adopting the definition of the term “ballot” by the supreme court of Ohio, it means: “A printed or written expression of the voter’s choice upon some material capable of receiving and reasonably retaining it, prepared or adopted by each individual voter and passing by the act of voting from his exclusive control into that of the election officers, to be by them accepted as the expression of his choice.” (State ex rel. Karlinger v. Board of Deputy State Supervisors of Elections, 80 Ohio St. 471, 24 L. R. A. (n. s.) 188, 89 N. E. 33.) This definition, if accepted as correct, would preclude any further discussion; but an acceptance of it involves the rejection, as invalid, of the Act of the legislature authorizing- the use of voting machines, and we must repeat that, in the case of statutes passed by the legislative assembly and assailed as unconstitutional, the question is not whether it is possible to condemn, but whether it is possible to uphold. We stand committed to the rule that a statute will not be declared unconstitutional unless its nullity is placed, in our judgment, beyond reasonable doubt. (State ex rel. May v. Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 Pac. 210.) Several considerations compel the view that the statute can and should be upheld.
In the first place, the term “ballot” has a most interesting history, into which we need not enter further than to say that, from its origin as descriptive of voting by means of balls put into an urn, its primary significance has always been a method whereby the voter might cast his vote in secret, as distinguished from a showing of hands or viva voce wherein secrecy is impossible. (See Ency. Britannica, under article “Ballot, Voting, Voting Machines”; also, cases cited below.) The view that permanent recordation of the elector’s choice on paper or anything else is an essential part of the process of voting by ballot finds no justification in etymology and scarcely any in the course of legislation having to do with the subject in this and other countries where such voting has obtained. But it is insisted that in Montana the matter was set at rest by the provisions of section 1018, page 926, Compiled Statutes of 1887, as follows: ‘ ‘ Every elector shall deliver, in full view of one of the judges of election, a single ballot or piece of paper, on which shall be written or printed the names of the persons voted for, with a pertinent designation of the office which he or they may be intended to fill; said ballots may be open or folded, as the voter may choose.” The argument is that these provisions fix the meaning of “elections by ballot” as used in the Constitution and established beyond peradventure that paper is, and secrecy is not, a vital part of that meaning. The fact is that, when the convention met, the section quoted was not in force, having been superseded by the Australian Ballot Law (Session Laws 1889, p. 145), under which secrecy became compulsory; but the point about secrecy as an element of voting by ballot is not so much that it be compulsory as that it be possible, and therein lies a distinction between voting by ballot and voting by the Australian method. Conceding, however, that by the section quoted and by the Australian Ballot Law as in force when the convention met, and by the course of legislation up to the enactment of the voting machine law, the idea of voting by ballot had its exposition in this community only in the form with which we are most familiar, and that it implied pieces of paper on which the voter should record his choice from among the names of the candidates written or printed thereon, it does not follow that this is a contemporaneous construction, absolutely defining the scope of the constitutional language. These enactments amount to nothing more than a legislative selection of one of the modes in which voting by ballot may be conducted, which mode for the time being should be followed. (Lynch v. Motley, 215 Ill. 574, 2 Ann. Cas. 837, 74 N. E. 723.) It cannot for a moment be supposed that the framers of our Constitution, or the people who adopted it and to whom was available the knowledge of the many changes in form through which voting by ballot had gone, intended then and there to put a stop to all progress in that direction, or to say that the method most familiar to them was the only one that could answer to the constitutional language. Indeed, the contrary must be assumed if we impute to them a fair average of human intelligence and curiosity; for it is certain that before that time devices for the secret automatic casting and counting of votes, free from the delay and frauds incident to the methods then in vogue, were being sought and at that time the voting machine, essentially as we know it, was an actuality. (Wigmore on Australian Ballot, p. 201.)
Again, we may assume, for argument’s sake, that such a thing as the voting machine, or any other form of balloting save with pieces of paper, did not enter the minds of those who framed or those who adopted the Constitution; still the proper interpretation of any constitutional provision requires us to remember that it is a part of the organic law — organic not only-in the sense that it is fundamental, but also in the sense that it is a living thing designed to meet the needs of a progressive society, amid all the detail changes to which a progressive society is subject. “We are to suppose,” as said by Chief Justice Parker, “that those who were delegated to the great business of distributing the powers which emanated from the sovereignty of the people, and to the establishment of rules for the perpetual security of the rights of person and property, had the wisdom to adapt their language to future as well as existing emergencies ; so that words competent to the then existing state of the community, and at the same time capable of being expanded to embrace more extensive relations, should not be restrained to their more obvious and immediate sense, if, consistently with the general object of the authors and the true principles of the compact, they can be extended to other relations and circumstances which an improved state of society may produce.” (Henshaw v. Foster, 9 Pick. (26 Mass.) 312.) A familiar application of this canon is seen in the history of the post roads provision of our national Constitution. This provision was promulgated when post roads were confined to waterways and to land routes traversed only by people - afoot or on horseback or in vehicles drawn by domestic animals; specially constructed ways for steam and electric traction could not have been in contemplation; yet it is settled to the satisfaction of everyone that such specially constructed ways can and do fall within the purview of this provision. So here, the provision that elections should be by ballot was employed not to designate pieces of paper, but a method which would insure, so far as possible, the secrecy and the integrity of the popular vote. The voting machine, if capable of accomplishing what is claimed for it, is a distinct step in advance of the prevailing method toward securing what the provision in question demands; and it will overcome in a striking degree many of the evils now said to surround the conduct of elections. If by its use the main purpose of the Constitution is furthered and the elector may cast his vote in secret with the assurance that it will be counted as cast, there can be no sound reason why the method should be dismissed as an innovation upon the letter of the law.
Finally, the definition and conclusion of the Ohio court are contrary to the weight of judicial authority. In not less than six states on not less than eight different occasions this precise question has been submitted for adjudication, and the use of voting machines has been upheld as in conformity with constitutional provisions similar to our own. (United States Voting Machine Co. v. Hobson, 132 Iowa, 38, 119 Am. St. Rep. 539, 10 Ann. Cas. 972, 7 L. R. A. (n. s.) 512, 109 N. W. 458; Elwell v. Comstock, 99 Minn. 261, 9 Ann. Cas. 270, 7 L. R. A. (n. s.) 621, 109 N. W. 113, 698; Henderson v. Board of Election Commrs., 160 Mich. 36, 124 N. W. 1105; Lynch v. Malley, supra; In re McTammany Voting Machine Co., 19 R. I. 729, 36 L. R. A. 547, 36 Atl. 716; Detroit v. Board of Inspectors etc., 139 Mich. 548, 111 Am. St. Rep. 430, 5 Ann. Cas. 861, 69 L. R. A. 184, 102 N. W. 1029; State ex rel. Empire Voting Machine Co. v. Carroll, 78 Wash. 83, 138 Pac. 306; Helme v. Board of Election Commrs., 149 Mich. 390, 119 Am. St. Rep. 681, 12 Ann. Cas. 473, 113 N. W. 6.)
2. The claim that the voting machines used in Silver Bow county do not comply with the law which authorizes their use is based upon a provision in section 2 of the Act (Session Laws 1907, Chap. 168) that “the machine must be constructed so that it cannot be tampered with or manipulated for any fraudulent purpose,” coupled with certain allegations of the complaint to the effect that said machines can be so tampered with. The provision quoted is to be read in connection with the balance, and particularly sections 14 and 15 of the Act; so read, it becomes obvious that the Act does not require a machine which is proof against all tampering or manipulation — no human contrivance can possess this immunity — but does require a machine which shall possess certain features which, when it is honestly operated, will enable the elector to secretly cast his vote as he wishes to east it and have it counted as cast, and which cannot be tampered with or manipulated in such a way that, though properly operated by the elector, it would seem to receive and record his vote without doing so. There are no allegations in the complaint to justify the inference that the voting machines in question are thus defective, or that they have ever failed to accurately receive and record the votes attempted to be cast by their means, or that the relator has through their use lost any votes intended to be cast for him. We are therefore of the opinion that no issue is presented in this behalf.
The demurrer to the complaint is sustained, and as the cause was argued and submitted on the theory that no questions other than those presented by the complaint as filed, and the demurrer thereto, could be raised, it is now adjudged that the proceeding be dismissed and the respondent confirmed in his office.
Dismissed.
|
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Hunt, J.
— We are very clearly of the opinion that the arrangement or agreement made by Fred Doremus with Sullivan, whereby the rentals due by Doremus to Sullivan for his private apartments should be deemed payment of plaintiff’s premium, was wholly beyond the scope of Doremus’ power as the manager or general agent of the defendant company, and was not binding upon the company, unless authorized by pre-vious authority or subsequent sanction. “Whatever an agent does can be done only in the way usual in the line of business in which he is acting. There is an implication to this effect arising from the nature of his employment, and it is as effectual as if it had been expressed in the most formal terms. It is present whenever his authority is called into activity, and prescribes the manner, as well as the limit, of its exercise.” (Hoffman v. Hancock Ins. Co., 92 U. S. 161; Gould v. Blodgett, 61 N. H. 115; Benjamin on Sales, § 1099.)
But appellant contends, with much earnestness, that, even if the arrangement referred to was beyond the scope of the agent’s power, there was an affirmance of it, and that plaintiff may recover upon the familiar principle that, when an agent makes a contract beyond his power, the principal cannot ratify any part of the unauthorized contract, but must ratify the whole of it, or, as plaintiff well expresses the rule, “he cannot accept what is advantageous and reject the remainder.”
The facts, however, prevent the application of the principle invoked to the case under consideration. The company, being ignorant of and in no way bound by the agreement of its agent with relation to his private debts, had a right to rest upon the conditions of its policy, which provided, among others, as follows:
“conditions and agreements of this insurance.
“This policy shall cease and be null, void, and of no effect, and the company shall not be liable for the payment of the sum assured, or any part thereof, but all premiums previously paid shall be the absolute property of the company, without any account whatever to be rendered therefor.
“Permanent conditions: 1st. (Payment of premiums.) If the premiums mentioned within, or any of them, shall not be paid on or before noon of the several days stipulated for the payment thereof respectively, or within three days thereof respectively.”
“Agents holding an appointment from the company are authorized to receive premiums at or before the time when due only upon production and delivery of the receipt of the secretary of the company, but not to make, alter, or discharge contracts or waive forfeitures.”
Mr. Sullivan knew by the provisions of the contract of insurance entered into between himself and the defendant that the premium for 1890 would be due November 30th. Instead of paying it, he communicated with the agent Doremus, and relied upon him to relieve himself (Sullivan) of the liability to the defendant because of the private contract which they bad entered into concerning the rentals of apartments. Such arrangement, however, being without defendant’s knowledge when entered into, was a fraud on Doremus’ part against k?s principal, and cannot bind the company, unless subsequently ratified by it. (Huffman v. Insurance Co., 92 U. S. 161; Castoir v. Insurance. Co., 33 N. J. L. 487.)
The plaintiff ought to have inquired into the authority of the agent Doremus when entering into the arrangements made. He seems in good faith to have relied upon the character of the defendant’s agent, and the general reputation of the company, but his mistaken confidence in the personal integrity of Fred Doremus cannot, under all the facts, affect the company in this matter, or relieve him from the consequence of his failure to pay the premium for 1890 on November 30th, or within the prescribed time thereafter.
In First Nat. Bank v. Hall, 8 Mont. 341, it was said, in relation to the reliance placed upon the authority, or the supposed authority, of an agent: “This transaction appears to have been entered into by the bank without sufficient scrutiny into the authority of Camp. While hardship may result from such confidence, it is better so than to relax the familiar rule, that an agent cannot bind his principal by acts done without authority, and that other rule that all persons dealing with an agent are bound to ascertain the scope of his authority, or otherwise they act at their peril. (Blum v. Robertson, 24 Cal. 140, and cases cited.)”
The plaintiff argues that by reason of the information given by him to Doremus, Sr., secretary and general manager, in July, 1891, of the arrangement between himself and Fred, and by the silence of Doremus, Sr., at that time, as well as by his statements made in November, 1891, the company ratified such agreement; but it must be remembered that, by the terms of the policy itself, the contract of the plaintiff had not been carried out, because, when he failed to pay the cash premium due in November, 1890, or soon thereafter, his policy had become null and void, and the company could claim a forfeiture thereof.
In New York Life Ins. Co. v. Statham, 93 U. S. 24, the court, with great ability, state the reason and necessity for promptness in the payment of life insurance premiums, in the following language: “All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of the premiums when due, but on compounding interest upon them. It is on this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for nonpayment is a necessary means for protecting themselves from embarrassment. Unless it were enforceable the business would be thrown into utter confusion. It is like the forfeiture of shares in mining enterprises, and all other hazardous undertakings. There must be power to cut off' unprofitable members, or the success of the whole scheme is endangered. The insured parties are associates in a great scheme. This associated relation exists whether the company be a mutual one or not. Each is interested in the engagements of all; for out of the coexistence of many risks arises the law of average, which underlies the whole business. An essential feature of this scheme is the mathematical calculations referred to, on which the premiums and amounts assured are based. And these calculations, again, are based on the assumption of average mortality, and of prompt payments and compound interest thereon. Delinquency cannot be tolerated nor redeemed, except at the option of the company. This has always been the understanding and the practice in this department of business. Some companies, it is true, accord a grace of thirty days, or other fixed period, within which the premium in arrear may be paid, on certain conditions of continued good health, etc. But this is a matter of stipulation, or of discretion, on the part of the particular company. When no stipulation exists it is the general understanding that time is material, and that the forfeiture is absolute if the premium be not paid. The extraordinary, and even desperate, efforts sometimes made, when an insured person is in extremis, to meet a premium coming due, demonstrates the common view of this matter.”
We regard the statements made by plaintiff to Fred Dore-mus in July, 1891, as wholly immaterial. And we may assume that there could have been a waiver of the forfeiture by the consent of Cornelius Doremus, as secretary and general manager; yet, we can find no act, express or implied, on the part of Doremus, Sr., as general manager, from which the court can fairly infer that there was any approval of the unauthorized acts of defendant’s agent, Fred, or any waiver on the company’s part of the forfeiture of plaintiff’s policy, which had occurred long before the interviews, and by operation of the policy itself. The silence of Doremus, Sr., at the July interview was not a waiver, nor was the company at that time obliged to do or say any thing to make the forfeiture effectual. (Titus v. Glenns Falls Ins. Co., 81 N. Y. 410.)
Coming to the November, 1891, interviews the fact must be always borne in mind that the policy of plaintiff had lapsed — it was dead. Plaintiff told Doremus, Sr., that he would like to pay both premiums. “ I had had some correspondence,” testified plaintiff, “ with Fred in regard to the matter, and he had been a little slow. I don’t know whether the conversation drifted at that time as to how the premium had been paid in the first instance, but I think it did. When I spoke to him about the amount of the premium which was due in 1891 I believe I told him what amount was due. I did not make any tender to him at that time.” Doremus, Sr., said Fred was not in, and, “ if I would come in in the afternoon, no doubt I would find him and fix matters up. The next morning I saw Fred Doremus. I went there at that time expecting to get every thing all straightened up, and fixed up, and receipts, and I was rather surprised and disappointed from his conversation soon after getting to his office, but his father, as he said, would not do any thing with it, would not do any thing with the matter of receipts.” Doremus, Sr., then came in, and said “ that he proposed to take a hand in this matter; that he would not allow his son to be bulldozed, nor the company either, and, if we wanted any thing from this company, we would have to get it.” The tender of the $151 was then made and peremptorily refused. “ There was talk previous to this about the contract which I had with Mr. Fred Doremus; there had been a general talk about it previous to that time. He knew the situation very well. I knew he knew the situation by conversation with him. I had told him the arrangements that were made that I have testified to here. I think that was at my interview with him in July. I explained as to the first premium, the second, and also the premium for 1891. There was not much further conversation took place at this November interview.” Just before the notice that the policy had lapsed was presented, “he [Doremus, Sr.] said ‘I don’t remember any thing about it. I don’t know. I will go and see.’ He went to the book-keeper and presently brought back that paper, and he says, ‘The book-keeper says this lapsed in 1891.’ He laid the piece of paper down on the desk. I read the paper. I said, ‘No, I guess it cannot be lapsed, it is n’t due until the 30th of this month, but, inasmuch as I was here, I thought I would step in and straighten the matter up, and, whatever balance there was, pay it.’ He said, ‘ It is a matter I have not paid much attention to.’ He said, ‘Fred will be here shortly. He will fix it up. If there is any mistake about it will correct it, no doubt.’ He said Fred had been attending to those matters, ‘and if there is any mistake he will make it all right; whatever he does will be satisfactory.’ He says, ‘I don’t understand this,’ but, he says, ‘If you will wait I think he will be in shortly.’ ”
After carefully considering all the statements made to the plaintiff by the general agent we find them insufficient to establish a waiver of the forfeiture of the policy. And it is significant in interpreting the words, and the whole conduct of Doremus, Sr., that the tender of the plaintiff was always, and even aggressively, refused; that plaintiff was always told, after investigation by Doremus, Sr., that his policy had lapsed; that the receipt for the premium was never offered to him, and that no recognition of any agreement between plaintiff and Fred was ever made in behalf of the company. It is plain, too, that Doremus, Sr., in referring plaintiff to his son, did not delegate, and did not mean to delegate, any authority to Fred to waive the forfeiture, or to do any other act which would bind the company. He was most careful to avoid doing so himself, and it is altogether unreasonable to construe the facts and circumstances attending his actions in any other light.
Being of opinion, therefore, that, at the time of the New York interview, the plaintiff’s policy was forfeited, and null and void, and that it was not revived, and that there was no act of the company at any time ratifying the unauthorized conduct of its agent, and that there was no waiver of any rights by the company, it follows that the district court correctly granted the motion for nonsuit.
The plaintiff’s situation is precisely described in the case of Ferebee v. North Carolina Mut. Home Ins. Co., 68 N. C. 11, where the court say: “The plaintiff risked everything upon his private arrangement with Speed, and paid no attention to the warnings of the company. This was his misfortune, and he is now left to his action against Speed for damages, but has no claim upon a company with which he contracted upon certain conditions, which conditions have never been fulfilled on his part, although he was (repeatedly) requested to do so.” The judgment is affirmed.
Affirmed.
De Witt, J., concurs.
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HUNT, J.
— The question to decide is whether or not, under the facts, tile district court correctly held that the title to the apples, and the control over them, remained in the plaintiff, vendor, or passed to the defendant as vendee.
From the statement settled by the judge, and the evidence in the record, it appears that about October 31, 1891, at St. Joseph, Missouri, through one Brown, a broker, acting for defendant at Missoula, Montana, plaintiff received an order for a carload of apples of a designated bind. Brown offered a price which plaintiff accepted, “free on board cars at St. Joseph, Missouri, sight draft with bill of lading attached.” The apples were shipped in good order but froze en route. The plaintiff took a bill of lading for the consignment in its own name, which bill of lading, with sight draft attached, was sent through a bank at Missoula, and presented to Fussy, who refused to honor the draft, or to receive the apples, because they were frozen.
There is no proof that defendant ever received the bill of lading taken by plaintiff at the time of the original shipment, or that the defendant ever received the apples as consignee, or that he ever exercised any control over them as owner thereof. On the contrary, the testimony showed that the carrier notified plaintiff” that it would sell the apples for freight charges, if plaintiff did not turn them over to Fussy without the bill of lading, and that Fussy refused to receive the apples because they were frozen in transit, and were in transit too long.
The motion for a nonsuit was upon the ground that the evidence failed to sustain the allegations of the complaint of a sale and delivery of the apples by plaintiff to defendant.
By the established rules of commercial law, where goods are shipped at the risk of the purchaser and by his order, or if by other evidence the intention of the shipper is made apparent to part with his title, the carrier is held to be the agent of the consignee, and not the agent of the consignor. But if the seller does not intend to part with his title to and control over the property when he makes the consignment, the authorities regard the carrier as the consignor’s agent, and not the consignee’s.
To get at the intention of the parties to such commercial transactions the bills of lading are resorted to.
If the vendor, when shipping, takes the bill of lading in his own name, this fact, when not rebutted by evidence to the contrary, is very strong proof of the intention of the vendor to reserve title in himself, and is almost decisive to prove the vendor’s intention to retain the jus disponendi of the property, and to prevent the delivery of same to the vendee. (Dows v. National Exchange Bank, 91 U. S. 618; Emery v. Irving’s Nat. Bank, 25 Ohio St. 360; Seeligson v. Philbrick, 30 Fed. Rep. 600; Chandler v. Sprague, 38 Am. Dec. 404, and note; McCormick v. Joseph, 77 Ala. 236; Forcheimer v. Stewart, 65 Iowa, 594; Sohn v. Jervis, 101 Ind. 578; Jones v. Brewer, 79 Ala. 545; Moors v. Kidder, 106 N. Y. 32; First Nat. Bank v. McAndrews, 5 Mont. 325.)
The plaintiff, the vendor in this ease, dealt with the bill of lading with the manifest purpose of securing the payment for the apples. And the defendant, by his refusal-to pay the draft, acquired no right to the bill of lading, or to the goods which it represented. (Benjamin on Sales, § 567; Farmers’ etc. Nat. Bank, 74 N. Y. 568.)
When the bill of lading was taken in the shipper’s name the presumption arose that he intended to retain the title in himself. This presumption must stand as conclusive until it is rebutted by affirmative proof on the plaintiff’s part. We find nothing in the testimony to overcome the presumption, and considerable to strengthen it.
The failure of plaintiff to notify defendant of any reason why the bill of lading was taken as it was, the failure of defendant to receive a bill of lading when the goods were shipped, coupled with the fact that it was sent with the draft for collection, leave no doubt in our minds that the vendor intended to hold the title to the property until the defendant paid for the same. The case, therefore, is in no way excepted from the application of the general principles which must govern.
The judgment is affirmed.
Affirmed.
De Witt, J., concurs.
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] |
DeWitt, J.
— The facts set out in the statement preceding this opinion all appeared upon the hearing of the motions by the district court. It may also be conceded that it fully appeared that all parties to the litigation understood that the same was in reference to the ground actually occupied by the defendant in said section 25; also that it was first discovered that the complaint and judgment described ground in section 26 after the writ of restitution had been issued. But we are of opinion that we cannot decide this appeal upon what the parties understood was the description of the premises in the complaint. We think that we should examine that description as it is.
The plaintiff contends that the complaint fairly shows that the ground described and sought to be recovered was in fact in section 25. This we cannot concede. - The parcel is described in the first place as a portion of the southwest quarter of section 25, but the description at once goes on to say, “more particularly described as follows to wit”: and then comes a surveyor’s accurate and technical description by courses in minutes and seconds, and by distances in feet. This description places the ground wholly and clearly out of section 25, and as wholly and clearly in section 26. Such particular description as the latter must control the general description which precedes it. (Goodrich Lumber Co. v. Davie, 13 Mont. 76; Largey v. Sedman, 3 Mont. 357.
Then we have this situation: the complaint and judgment and writ describe one piece of land, and the plaintiff’ after the default of the defendant, wishes to amend these records by inserting a description of another piece of land. This is certainly a material amendment. We think that we need not stop to fortify this statement by argument or by authorities. The plaintiff wishes to make this material amendment and still hold his default against the defendant. When the defendant got into default plaintiff was asking possession of a piece of ground in section 26. Now, by seeking to amend, plaintiff wants a piece of ground in section 25, and this without an opportunity for defendant to answer. Defendant had no occasion to defend against plaintiff’s demands for the land in section 26, for defendant did not occupy or claim any land in section 26. But, when plaintiff wishes to change his pleading and judgment to cover land in section 25, then the defendant is materially affected as to a right upon which he has never had an opportunity to be heard, and as to which he has never defaulted. We base this line of reasoning, of course, upon our decision at the commencement of this opinion, that the pariicu-lar description controls the general in the complaint. Such a material change as this cannot be made after default. This court said in Schuttler v. King (a portion of the decision in which the whole court agreed) as follows: “It is proper to note, also, that we think it a dangerous precedent to allow any material amendment of the complaint where default is made, and enter judgment without further service, according to such amendment. (Code Civ. Proc., §§ 241,245.” See, also, Barbour v. Briscoe, 8 Mont. 214; Foster v. Wilson, 5 Mont. 53.)
We are of opinion that to allow such an amendment, as.was proposed to be made in this case, would be wholly wrong. It would open the way to allowing a plaintiff to bring a defendant into court to answer one cause of action, and, if he got the defendant into a default, then to prove a wholly different cause of action against him. It is true, perhaps, that the matter of description in this case was a clerical error, but it was a substantial and material one. It went to the very anchorage of the whole description. It was quite as apparent in Foster v. Wilson, supra, that the error was a clerical one; yet in that case the court would not allow a judgment by default in ejectment to stand, which gave to the plaintiff premises “easterly” from a certain point, when in his complaint he had demanded premises “westerly” from said point.
We have not the slightest hesitation in affirming that the district court was wholly right in denying the application to amend the complaint, the judgment and the writ of restitution, and in recalling the writ of restitution.
It did not appear anywhere in the case that the plaintiff requested to make his amendments upon allowing the defendant to come in and answer thereto. The orders of the district court are affirmed.
Affirmed.
Pembertost, C. J., and Hunt, J., concur.
|
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] |
De Witt, J.
— This is an appeal from a judgment rendered in favor of the defendants. The complaint alleges that on December 4,1890, the defendants Klenzie and Mclnheny converted one hundred and six cows and twenty-nine calves, the right of possession of which was in plaintiff, and sold the same to the other defendant, Okermau. The defendants denied the conversion, and relied in defense upon the following facts: That on July 11, 1889, plaintiff and one J. M. McLain, of Fergus Falls, Minnesota, made a contract by which McLain leased to the plaintiff, Powers, one hundred and sixty-five heifers for five years. The contract was pleaded in full. It provided, in detail, for the care of the stock and its increase by Powers, and the division of the proceeds between Powers and McLain. The answer further sets forth the death of McLain, and the appointment in Minnesota of his wife, Margaret, as adminis-tratrix. It appears that she had afterwards married the defendant Klenzie, and he had acted as her agent in the matter of the cattle. The answer pleaded various breaches by Powers of the Powers-McLain contract; and also “that said plaintiff asked Mrs. J. M. McLain to be relieved from all obligations under the above-mentioned contract, and of all care of the cattle mentioned therein, all of which cattle and stock are the same as mentioned in the complaint herein; that in compliance wit h said request said H. G. Klenzie took said cattle described in the complaint, and afterwards, to wit, on the fourth day of December, 1890, sold and delivered tbe same to the said defendant Okerman.” On the trial testimony was heard on behalf of both plaintiff and defendants. At the close of all the testimony the court directed the jury to find a verdict in favor of the defendants. This was accordingly done, and judgment entered. This was in the nature of a nonsuit. (McKay v. Montana Union Ry. Co., 13 Mont. 15; Creek v. McManus, 13 Mont. 152; Mayer v. Carothers, 14 Mont. 274.). If, therefore, the evidence of plaintiff (or his evidence aided by that of defendants, if such aid be found) tended to prove that plaintiff was entitled to the possession of the property at the commencement of the action, the direction of the court to find for defendants was error, and the judgment must be reversed. (Cases last supra.)
The plaintiff, Powers, being in possession of the cattle under the contract above mentioned, wrote to Mrs. McLain, who had then become Mrs. Klenzie, the following letter:
“Neihart, Sept. 25, ’89.
“ Mrs. J. MoLain, Fergus Falls, Minn.,
“Dear Madam: You promised to write to me, and, as you did not, I take the liberty to write to you about the cattle. You have got to do one thing or another — take my offer of eleven dollars a head, or come and take the cattle, and pay me for my trouble. All the calves and cows are poor. There was eighteen inches of snow fell on the 5th, and it is not all gone off yet. • I have not got enough of hay to feed the calves alone the cows this winter. I want you to write, and let me know what you are going to do at once. If I could get the cattle inside of three' weeks, I can butcher them, and get my money back; if I cannot get them inside of that time, I do not want them at all, because after that the cattle will start to get poor. You will not let me move them. There is no feed on their old range, and they will all die this winter.
“Yours respectfully,
“ Michael Powers.”
Shortly after receiving this letter Mrs. Klenzie came to Neihart with her husband, Klenzie, the defendant herein, and saw Powers. Mrs. Klenzie offered Powers the cattle for eleven dollars per head. Powers testified as to this: “ I did not have the money to buy them, but said if I could raise the money I might give that for them. I made no effort to raise the money.” Mrs. Klenzie then waited for some two or three weeks, and Powers had done nothing towards'taking the stock at the price mentioned, or under any oilier conditions. The season had then reached the 4th of December. Powers had told her that he had no hay to winter either the cows or the calves. She then, by her husband and agent, rounded up the cattle, and sold and delivered them to the defendant Okerman. This action is brought by Powers against Mrs. Klenzie’s husband and the herder and Okerman.
There was much testimony upon the trial as to the care, or lack of care, of the stock, and much other matter that is not now here material.
The above recited facts appear clearly and unquestioned. We are of opinion that they conclusively show that, after Mrs. Klenzie had taken and sold the stock to Okerman, plaintiff had no right of possession in them. He had peremptorily told Mrs. Klenzie, by letter, that she must take his offer of eleven dollars per head, or she must come and take the cattle, as he could not winter them. She was willing to accept his offer of eleven dollars, and gave him seasonable notice of her disposition in this respect, and a reasonable time for him to consummate that proposition. He did not even make an effort to conclude that trade. Then, the winter being at hand, and Powers’ proposition not being withdrawn, Mrs. Klenzie acted upon the other alternative presented by Powers’ letter} and took the cattle. That certainly terminated Powers’ right of possession, and he should not be allowed to maintain his action for conversion, as was correctly held by the district court.
There may be some questions left between Mrs. Klenzie and Powers as to a settlement of accounts under the contract. Powers made some claims for services in regard to the cattle, and Mrs. Klenzie made claims as to loss of part of the cattle. But those matters have not to do with the question of right of possession, as settled by the dealings of the parties, commencing with Powers’ letter, and ending by Mrs. Klenzie taking possession of the stock. a
Appellant’s counsel also raise some questions as to Mrs. Kleuzie being a foreign administratrix, and not having taken out in this state ancillary letters of administration. But that question was never raised between the parties. Powers always dealt with Mrs. Klenzie as being the owner of the stock. He made his propositions to her as such, and recognized her as the owner in every transaction in regard to the cattle. It is our opinion that the judgment of the district court should be affirmed, and it is so ordered.
Affirmed.
Pemberton, C. J., and Hunt, J., concurred.
|
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] |
MR. COMMISSIONER CLAYBERO
prepared the following opinion for the court:
Appeal from a judgment against defendants. The facts as disclosed by the record are, briefly, as follows: Defendant Rolfe was proprietress of the Red Boot lodging house, in the city of Butte; she occupied the premises under an unexpired written lease from O’Rourke. Defendant Wilson was a real estate agent having his office in this lodging house, and negotiated an oral agreement for the sale of the business of defendant Rolfe to plaintiff Sathre, for the sum of $1,850. By this oral agreement the sale included the leasehold interest in the property,, as well as the furniture and fixtures used in the business. Wilson undertook to reduce the oral agreement to writing, but fraudulently omitted therefrom all mention of the leasehold interest. Plaintiff testified as to this transaction as follows: “Mr. Wilson asked me to sign the agreement, or the contract, and read it over, and when I saw the lease was not mentioned in' it I said, ‘Why, hadn’t the lease ought to be mentioned in this V and he said: p‘No, that is not necessary; that is a separate paper by itself; I will get that paper, and will give it to you.’ He says: ‘This don’t amount to anything anyhow, and it is just a custom that real estate men have and use’; and I believed I could rely on what he said, and signed'it.”
The complaint alleges, among other things, that said defendants, “with intent to deceive and defraud the plaintiff, did knowingly, falsely and fraudulently represent to her that they had the right to and could sell' said lease and vest plaintiff with a good title thereto, and promised plaintiff that, if she would purchase the property aforesaid, they would procure the consent of the lessor to the sale of said lease to plaintiff. That the plaintiff, believing and relying on .said representations and promise, and induced thereby, and without knowledge to the contrary, purchased said lease and the contents of said lodging house from said defendants, and paid them therefor the sum of $1,850. * * * That, on or about the time aforesaid, said defendants procured plaintiff to sign an agreement to purchase, intended to express said contract, in which the said lease and its sale to plaintiff was not set out. That she signed said agreement, relying on and believing said defendants’ assurances then made, viz., that the said lease, being a separate writing, need not be mentioned in said agreement, but itself would be delivered to her when received by said defendants from the lessor, and thereby induced thereto, and by said defendants’ promise to secure and deliver said lease to her, which promise was made by them with no intent to perform the same.”
It is also alleged that the lease was not assignable without the consent of the lessor, and that he refused such consent, and that the promise of defendants to procure the lessor’s consent to the agreement of sale was made “without any intent to perform the same, and to deceive and defraud plaintiff.” That plaintiff paid $1,300 in cash, and gave' defendant Bolfe her promissory notes for the remaining $550, secured by chattel mortgage upon the furniture so purchased. Plaintiff prayed for the surrender and cancellation of these notes and chattel mortgage, and for a recovery of a portion of the consideration paid. She succeeded in obtaining such decree, and defendants appeal.
Upon the trial of the case plaintiff offered testimony to show the original purchase of this leasehold interest, and the fraudulent acts, representations and conduct of defendants Bolfe and Wilson as alleged, which was objected to on the ground that it varied the terms of the written contract, and was inadmissible under Section 2186 of the Civil Code, which reads as follows: “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” -
Section 3132 of the Code of Civil Procedure provides: “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in Section 3136, or to’ explain an extrinsic ambiguity, or to establish illegality or fraud. The term ‘agreement’ includes deeds and wills, as well as contracts between parties.”
Section 2117 of the Civil Code provides: “Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: * * * (4) A promise made -without any intention of performing it; or, (5) any other act fitted tó deceive.”
Section 2123 of the Civil Code provides: “Mistake of law constitutes a mistake within the meaning of this article, only when it arises from: * * * (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.”
It is apparent that the complaint alleg’es a mistake or imperfection in the writing, fraud, and the invalidity of the written agreement. It is equally apparent that the oral 'evidence was offered to establish such mistake, imperfection, illegality and fraud.
. The allegations of the complaint and the testimony offered by plaintiff show that the defendants Rolfe and Wilson well knew that the original lease from O’Rourke to Rolfe was not assignable without the consent of O’Rourke; that plaintiff at the time she made the purchase and signed the written contract had never seeii the lease, and had no knowledge that it contained such provision. Plaintiff alleges that they promised her to procure the consent of O’Rourke to the assignment and transfer of the lease to her without any intention of performing said promise, and the testimony offered in the case tends to support that contention.. Proof was also introduced which tended to show acts on the part of defendants Rolfe and Wilson “which were fitted to deceive” and did deceive the the plaintiff. Both Rolfe and Wilson had knowledge of the fact that the lease from O’Rourke was not assignable without his consent, and the proof shows that the plaintiff at the time she signed the agreement knew nothing of the contents of the lease. There is no proof that the defendants honestly tried to obtain the consent of O’Rourke to the transfer of the lease. In their answer they deny that the leasehold interest was ever to be transferred to the plaintiff. So we must conclude that the record discloses actual fraud on the part of defendants Rolfe and Wilson in obtaining plaintiff’s signature to the contract; that they made a promise which they did not intend to fulfill; that they knew the contents of the lease, and that it could not be transferred to plaintiff without the consent of O’Rourke; that plaintiff was ignorant of its contents; that they never honestly attempted to obtain such consent; that the inducement held out to plaintiff to sign the agreement was based upon the fraudulent representations of defendants Kolfe and Wilson to the effect that the leasehold interest need not be mentioned in such contract, but that they would obtain it and deliver it to plaintiff. By these facts the plaintiff has shown a clear right to the equitable relief demanded, and under the above sections of the statute she had a right to make such showing, and the court did not err in admitting the testimony objected to. ■
Appellants’ counsel insist that the oral sale of the leasehold interest was void under the statute of frauds. Under the facts and law aboye stated, we deem this proposition entirely'immaterial. Plaintiff purchased the leasehold interest, paid the consideration therefor, and went into possession of the premises with the full consent of the defendants. The promise to obtain the transfer of the lease was the inducement for plaintiff’s signing the contract. It would be extremely inequitable to hold that, after defendants had procured the consideration from the plaintiff and put her in possession of the property, they could come in, without placing plaintiff in statu quo, and assert that, notwithstanding such facts, their promise to procure the lease was void under the statute of frauds. They cannot thus benefit by their own fraudulent and wrongful acts and conduct.
The admissibility of the parol proof offered is so clear under the above statutes that we have not considered the question as to whether this proof was not also admissible upon the theory that an oral contract had been entered into, a portion of which had been reduced to writing and a portion of which had been fraudulently omitted from the writing, the omitted portion being independent of and entirely collateral to that portion which was reduced to writing. In the judgment of the writer of this opinion, this parol proof was equally admissible under this theory.
This leaves but the question as to the validity of the judgment against Beck. Four of the notes given were assigned to Beck as security for the payment of a pre-existing debt of defendant Kolfe. They were not indorsed to Beck, but assigned to him by a separate instrument. He was in no sense a bona fide holder, and the notes were therefore subject to all the defenses which might have been urged against them had they remained in the hands of defendant Rolfe. (2 Randolph, Neg. Insts. '788, 789; 1 Daniels, Neg. Insts. 741.) There can be no doubt but that the plaintiff had a right to have the notes and chattel mortgage canceled in thé hands of defendant Rolfe, and, inasmuch as defendant Reck simply stands in her shoes, they were subject to cancellation in his hands.
We advise that the judgment be affirmed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment is affirmed.
Mr. Justice Milburn, not having heard the argument, takes no part in this decision.
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] |
MR. COMMISSIONER POORMAN
prepared for the court the following opinion:
This is an appeal from a judgment, and from an order overruling defendant’s motion for a new trial.
1. The complaint is in two counts, and alleges, substantially, in the first count:
First. That plaintiff granted to defendant the exclusive privilege of selling certain articles of merchandise at the Butte race track for a period of forty-three days, and that defendant promised and agreed in writing to pay the sum of $550 therefor, payable in installments; the last payment to be $185 on August 25, 1901.
Second. That defendant received the privilege, and used and enjoyed the same during said period; that plaintiff is the owner of defendant’s written promise, but that defendant neglected and refused to pay plaintiff said $185, or any part thereof.
In the second cause of action it is alleged that plaintiff granted to defendant the exclusive privilege of selling certain articles of merchandise at the Butte race track for the period of thirteen days in the months of August and September, 1901, and that defendant used and enjoyed said privilege for said time; second, said privilege was reasonably worth the sum of $166.27; third, plaintiff now owns said claim against defendant, and said claim is payable, and defendant refuses to pay the said sum, or any part thereof.
The defendant, in answering the complaint, admits the execution of the agreement named in paragraph 1 of the plaintiff’s first cause of action; admits that he received and exercised the privilege of selling the merchandise therein named for the period of forty-three days, and for the further period of thirteen days; but claims that the thirteen days were included in the original contract, and that plaintiff is not entitled to any extra pay therefor.
The written agreement by which plaintiff granted to defendant this privilege is as follows: “I, the undersigned, hereby agree to give to J. F. Fox the exclusive privilege of selling fruits, candies, peanuts, popcorn and gum at the Butte race track for the racing season of 1901, the said racing season to consist of forty-three racing days. Hpon payment of five hun dred and fifty ($550) dollars, in payment as follows: One hundred and eighty-five dollars one day before races start. One hundred and eighty dollars the 1st of August, and the balance, one hundred and eighty-five dollars, on August 25th.” There is also in evidence a written agreement, in similar form, by the terms of which defendant agreed to pay the sum of $550 to plaintiff.
The defendant attacks the second count in the complaint as not stating facts sufficient to constitute a cause of action, for the reason that it is not alleged in that count that the plaintiff was the owner of the privilege granted, and that the complaint does not allege that the sum claimed has not been paid, and that there is no allegation of value.
The first two objections raise questions of pleading — as to whether paragraphs numbered 1 and 3 in the second cause of action contained sufficient allegations of ownership in the plaintiff and nonpayment by defendant. These allegations are to the effect that plaintiff granted to defendant certain privileges, and is the owner of the claim against defendant therefor. Construing these terms in connection with other allegations of the complaint, the meaning undoubtedly is that the plaintiff sold certain privileges to the defendant; that the defendant accepted the same, and acted thereon.
It is a principle of pleading that whatever is necessarily implied from an express allegation need not be otherwise averred. (Baysinger v. People, 115 Ill. 419, 5 N. E. 375.) “If facts are pleaded from which an ultimate fact necessarily results, it is the same as though such ultimate fact were specifically pleaded.” (Boone, Code Pleading, par. 10.) “Facts necessarily implied should not be stated.” (Bliss, Code Pleading, par. 176.)
Our statute requires every action to be prosecuted in the name of the real party in interest. (Section 570, Code of Civil Procedure.)
In Russell v. Clapp, 7 Barb. 482, it is said that it is “enough for the plaintiff to allege the sale and delivery of the goods. * * If the defendant would avoid the plaintiff’s right to recovery by showing that some other person, and not the plaintiff, is the real party in interest, he must state in his answer such facts as, when established by proof, will enable the court to say, as a matter of law, that the plaintiff is not the real party in interest.” See, also, Evans' Adm'r v. Exchange Bank, 79 Mo. 182; Duzan v. Meserve, (Ore.) 34 Pac. 548.
In Phillips v. Bartlett, 9 Bosw. (N. Y.) 678, the complaint alleged: “ ‘The plaintiff sold and delivered to defendant, at his special instance and request, a large * "x' * quantity of boots and shoes,’ of a certain value, and that there is due and unpaid therefor ‘a certain sum, which the defendant promised 'to pay the plaintiffs, but, though often requested’ by them, has ■wholly refused to pay it.” A demurrer was filed on the ground that the complaint did not state facts sufficient to constitute a cause of action, but the court held the complaint good as to the allegations of ownership and nonpayment.
We do not think the complaint is open to the objection made. Furthermore, in this particular case, the complaint not having been demurred to, the plaintiff testified on the trial, without objection, that he was the owner of this privilege at the time he made the grant to the defendant, and the answer admitted that the defendant had not paid the sum demanded for this extra thirteen days. If the complaint is defective with reference to the allegation of nonpayment, it was cured by the allegations of the defendant’s answer. (Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211.)
Paragraph 2 of the second cause of action consists of a direct allegation as to the reasonable value of this privilege.
Certain minor objections are mentioned in the specification of errors, but are entirely ignored in the argument. We will say, however, that there is nothing ambiguous about this contract as to the time limit therein mentioned.
AVe think the judgment and order appealed from should be affirmed.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are affirmed.
Affirmed.
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] |
MR. COMMISSIONER OLAYBERG-
prepared for the court the following opinion:
Appeal from a judgment. The complaint was filed in the police court of Anaconda to recover an unpaid balance due upon a contract for purchase and sale of land. Defendant answered, denying the allegations of the complaint, and alleging by way of counterclaim facts in support of damages to the amount of $300 for certain misrepresentations of plaintiff in the contract of sale. Tlie action was tried, and resulted in a judgment in favor of plaintiff for the amount claimed in liis complaint. From this judgment defendant appealed to the district court. After such appeal was perfected, defendant filed an amendment to: his answer, pleading as an affirmative defense the statute of frauds. No replication was filed to this amendment, and none was required (Section 1528, Code of Civil Procedure), the pleadings in the district court upon an appeal from a justice or police court being governed by the same rules as to pleadings in these courts. •
After the jury was called and sworn to try the case in. the district court, the defendant moved for judgment on the pleadings, and that the jury be instructed to render a verdict for defendant for his costs, which motion was bv the court granted, and a verdict rendered for defendant for his costs as directed. A judgment was thereupon entered in favor of defendant for his costs and the sum of $300 damages as claimed in the counterclaim alleged in his answer in the police court. Plaintiff appeals from this judgment.
A reversal must follow. The district court sitting to hear appeals from a justice’s or police court must try the case so appealed de novo, and exercise only the same jurisdiction as was exercised by the justice’s or police court. (State ex rel. Grissom v. Justice Court of Twp. No. 1, 31 Mont. —, 78 Pac. 498; Clark v. Great Northern Ry. Co., 30 Mont. 458, 76 Pac. 1003; State ex rel. Shanahan v. Lindsay, 22 Mont. 398, 56 Pac. 827; State v. Deslauries, 13 Mont. 398, 34 Pac. 490; Missoula Electric Light Co. v. Morgan, 13 Mont. 394, 34 Pac. 488.)
The record does not disclose that any other issues than those of fact arising on the pleadings were tried in the police court. A further and additional issue of fact was presented to the district court upon the amendment which was filed to the answer of defendant, but the issues joined by the answer filed in the police court remained to be disposed of as they were made up in that court. The original answer was not superseded by the amendment, but still remained, and presented issues of fact to be determined by tbe district court. With these issues remaining, the court could neither grant a judgment on the pleadings nor direct a verdict for defendant. (Horsky v. Moran, 13 Mont. 250, 34 Pac. 360; Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631; Bach, Cory & Co. v. Mont. L. & P. Co., 15 Mont. 345, 39 Pac. 291; Swinehart v. Pocatello Meat & Produce Co., (Idaho) 70 Pac. 1054.)
'But again, the verdict as directed by the court and returned was for the defendant for his costs.. Notwithstanding this verdict, judgment was entered in favor of defendant for his costs and for $300 damages. So we have the anomaly of a verdict for defendant for costs and a judgment for costs 'and $300 damages.
We advise that the judgment appealed from be reversed.
Per Curiam.- — Por the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.
Reversed and remanded..
|
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] |
Per Curiam.
Upon motion of respondent herein this appeal is dismissed.
|
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] |
ME. OOMMISSIONEE CLAYBEEG
prepared the following opinion for the court:
Appeal from judgments against defendant, and an order overruling his motion for a new trial.
On June VI, 1900, respondent (Handley) brought suit against appellant (Sprinkle) upon two causes of action, viz.: (1) An action for damages for the breach of a contract for the care and running of a certain band of sheep. In connection with this cause of action plaintiff alleges that, at the date of the making of the contract alleged, plaintiff and wife executed and delivered to defendant their promissory note for $1,900, and also executed and delivered a chattel mortgage securing payment of the same, but that the said note and mortgage were solely for the jmrpose of securing future advances of money to defray the expenses of running the sheep under the alleged contract. (2) An action on account for the value of goods, wares and merchandise sold and delivered to the defendant.
The defendant answered the first cause of action by a general denial of all the allegations of the complaint, and by affirmative allegations setting up the existence of a contract with plaintiff for running a band of sheep from the .... day of August, 1899, for one year, setting up the terms of the contract, among which was an agreement on his (defendant’s) part to furnish all money necessary to pay the expenses of running the sheep during the year, which was to be returned to him on final settlement; that plaintiff took possession of the sheep under this contract in August, 1899; that on June 28, 1900, plaintiff’s demands for money became so unreasonable that defendant demanded a settlement of all their accounts, which was then and there had, and, after giving plaintiff all the compensation to which he was entitled under the contract, plaintiff was found to owe defendant the sum of $1,900, whereupon plaintiff and his wife gave defendant their promissory note for this amount, secured by a chattel mortgage, a copy of which is attached to the answer. The defendant further alleged that he was the sole holder and owner of the note and mortgage, and that no part had been paid, except the amount specified in his answer to the second cause of action. In his answer to the second cause of action he admits purchasing the articles mentioned in paragraphs 1 and 2, of the plaintiff, at the prices stated; denies all the other allegations of the second cause of action. He then sets forth by way of affirmative matter the same facts as alleged affirmatively in his answer to the first cause of action, with the additional allegation that the sum total value of the merchandise admitted to have been purchased from plaintiff, as stated in his answer, was credited on the note above referred to by the agreement of the parties. To this aswer plaintiff replied by way of general denial.
On June 17, 1901, plaintiff instituted another suit against defendant, by which he sought to have the note and chattel mortgage set up in the pleadings in the prior suit canceled, and to have plaintiff enjoined from taking possession of the mortgaged property, and from transferring or disposing of the note. Cancellation was asked for on the ground of fraud on part of the defendant in obtaining the note and mortgage. (Further reference to this complaint will hereinafter be made.) To this com ■ plaint defendant answered, admitting that prior to June 28, 1900, the plaintiff was running a band of sheep as lessee, which sheep were owned by defendant as lessor; admits the execution and delivery of the note and mortgage, and that he is in the possession thereof. He then denies “each and every allegation of the complaint not hereinbefore specifically admitted.”
When the cases above mentioned came on for trial, the defendant moved the court for a consolidation of the suits, “in accordance with Section 1894, Code of Civil Procedure.” This motion was sustained, over the objection of plaintiff, and the cases were consolidated. The record does not show the order of the court made upon such consolidation. The suits were tried together before a jury, which rendered separate general verdicts in favor of plaintiff in each original suit. In addition to their general verdicts, the jury made six special findings in plaintiff’s favor, two of which were applicable to the suit at law, and four to the suit in equity.
On the day after the rendition of these verdicts, the clerk of the court entered judgment in each original suit, in accordance with the general verdicts of the jury. In the suit at law the judgment was for the sum of $500 (the amount of damages found by the jury for plaintiff), and $211 costs of suit. In the action in equity the judgment is in the following form: “Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed that the said plaintiff do have and recover from said defendant the sum of......dollars, with interest thereon at the rate of eight per cent per annum from the date hereof till paid, together with said plaintiff’s costs and disbursements incurred in this action, amounting to the sum of nine dollars and fifty cents ($9.50).”
On the same day the verdicts were rendered plaintiff’s counsel moved the court in the equity suit to adopt the findings and verdicts of the jury, and render a decree as prayed for in the complaint. On September 28th defendant’s attorney moved the court to reject each of the findings in both cases for certain reasons stated in the motion. On December 11th the court adopted the findings of the jury, and rendered a decree in the equity suit against defendant, as prayed for in the complaint, and entered a judgment against defendant for $226.50 for costs.
Two important questions are presented for determination upon the record in these appeals, viz.: What is the practice after the consolidation of suits, under Section 1894, supra; and was such practice followed?
This section is as follows: “Whenever two or more actions are pending at one time between the same parties and in the same court, upon causes of action which might have been joined., the court may order the actions to be consolidated.’.’ It is apparent that the purpose of this provision is to compel a party having different causes of action against another, which might be joined in one suit, to include such causes of action in one suit, so as not to vex the defendant with several suits and place the burden of extra costs upon him.
The consolidation of actions under this statute must he distinguished from what has been known for many years as the “consolidation rule,” which was first devised and established by Lord Mansfield. Under that rule, where many cases were pending between the same parties in which the same issues were involved, one case was tried, and all proceedings in the other eases were stayed until after such trial. It must also be distinguished from the old practice in equity of consolidating equity cases. Under such practice, each ease was decided upon its own pleadings and evidence. The consolidation in equity cases under this practice was practically consolidating them for the purpose of trial alone.
In our judgment, the consolidation of actions under our statute merges all the actions consolidated into one suit. There may be many causes of action, but the effect of consolidation is to join them all in one suit. If this is true, there can be but one judgment in the consolidated suit, and this judgment must settle all the issues involved. All the suits consolidated are ended as separate suits, and exist thereafter only as parts, respectively of the consolidated suit. Where an order of consolidation is made, the court should require the pleadings to be reconstructed as in one suit, if necessary, and should determine what costs, if any, should be charged to either party in the original suits. All costs in the consolidated suit accrue only after the consolidation. If the pleadings are ordered reformed, the complaint in the consolidated suit should state all of plaintiff’s causes of action against the defendant as alleged in each of the suits consolidated, and the answer of the defendant should present all issues which he has raised in such suits. The complaint in the consolidated suit should be the same as if the plaintiff had joined all causes of action alleged in the original suits in one action. Of course, on the trial, several findings may be had upon the several causes of action stated in the pleadings,' and if legal and equitable actions are consolidated they may be tried in the same manner as though such causes had been joined in the same complaint.
In this case, although the original suits were consolidated in accordance with the statute, and were tried as one, yet separate final judgments were entered in each original suit. In fact, the record discloses the entry of three spear ate judgments — one in each original suit — entered by the clerk upon the verdicts, and a decree by the court in the equitable suit. It also appears that the clerk entered as costs against defendant in the judgments in the two original suits the sum of $226.50, and that the court included the same amount as costs in the decree in the equitable suit.
There is a great dearth of decisions upon the points above decided, but we have gathered our conclusion from the examination of all sources at our command.
It is apparent from the record that plaintiff recovered duplicate judgments for the same costs, when he was only entitled to single costs, which should be given in a judgment in the consolidated suit.
We cannot consider upon these appeals the question as to whether or not the consolidation was proper under the statute, for the reason that appellant himself caused the consolidation to be made. ■ The legality of the consolidation of actions will not be reviewed by this court unless excepted to at the time and brought to this court by the party excepting. Appellant could not take such exception, having caused the consolidation to be made, and upon these appeals we cannot consider any exceptions of respondent.
If, aside from the question of costs, the judgments rendered were warranted by the pleadings and proofs, this court would have the power to order them to be modified as to costs, and, as modified, affirmed; bnt we are satisfied that the court erred in entering the decree in the equitable suit, and therefore the judgments must be reversed.
Appellant insists that the complaint in the equitable suit does not state facts sufficient to constitute a cause of action, or to entitle respondent to the cancellation of the note and mortgage. If this position is well taken, the court below erred in rendering the decree. The equitable suit, as before stated, was for’ the primary purpose of having the note and mortgage surrendered for cancellation; injunctions were asked as incidental to this relief.
The cancellation was demanded upon allegations which are, briefly, in substance as follows: That plaintiff was in possession of certain sheep belonging to defendant, under a contract to care for and run the same; that by the terms of this contract the parties thereto were to bear “certain expenses connected with the running of said sheep”; that defendant fraudulently represented to plaintiff that it would be necessary for plaintiff to “execute a chattel mortgage on his property in order that moneys might be procured to defray the expense of running said sheep for the year beginning on said June 28, 1900”; that “by said representations the defendant fraudulently induced the plaintiff to execute a note and chattel mortgage, and the plaintiff, relying upon such fraudulent representations,” executed and delivered the note and mortgage in question; that, at the time the note and mortgage were given, plaintiff was not indebted to defendant in any sum; that “it was then and there understood and agreed that the defendant would from time to time advance to the plaintiff the moneys necessary to defray the expenses in running the sheep, to the amount of $1,900 or over”; that, immediately after the execution of the note and mortgage, defendant violated the contract for running the sheep, and “then and there took possession of all said sheep and removed them,” and has kept them ever since, and refused to allow plaintiff to run or care for them or exorcise any control over them, “without any fault of plaintiff, and against his will and consent”; that “there was no consideration whatever for the execution or delivery of the said promissory note or chattel mortgage,” and that “the defendant never advanced any sums of money whatever to the plaintiff on account of said promissory note or mortgage.”
These are all the allegations of the complaint upon the cause of action for 'cancellation; all the others have reference to the issuance of injunctions. It is perceived that there is no allegation of the insolvency of the defendant, no allegation that plaintiff did not have an adequate remedy at law, and no allegation that defendant threatened to dispose of the note before maturity to a bona fide purchaser, but, on the contrary, the allegation “that the defendant has the possession of said promissory note, and refuses to deliver the same to plaintiff.” It is very plain that there is no allegation of any fraudulent act or conduct on the part of defendant sufficient to warrant the court in canceling the note and mortgage. The most that can be said of the allegations is that plaintiff claims and alleges failure of the consideration of the note. The consideration alleged was the advancement of money from time to time under a- certain contract, that defendant violated the said- contract and refused to carry out the same, and that he did not advance the defendant any money. This is simply an allegation of the making of a contract by the defendant, and the breach thereof, for which the defendant was liable to the plaintiff in damages. The facts alleged in the complaint as above recited would simply furnish the plaintiff a defense to an action on the note by the defendant and for a foreclosure of the mortgage. If the property should have been seized under the chattel mortgage, plaintiff would have had a right, under such facts, to maintain an action of claim and delivery for their possession, or an action in conversion for their value. There having been an adequate remedy at law against the note and mortgage in the hands of defendant, equity cannot intervene for the cancellation of said instruments. The remedy of plaintiff was either an action against the defendant for damages for a breach of his contract, or a defense to any suit which the defendant might bring on said note and mortgage.
It may be claimed that the note was not yet due, and was negotiable. If the plaintiff had alleged in his complaint that the defendant was about to sell or dispose of the note to a bona fide purchaser, which would cut off his defense to the note in a suit by defendant, there might have been some merit in the fact that the note was negotiable and not yet due, but not a solitary allegation tending even to show such facts was made in the complaint.
We are of the opinion that the complaint in the equity action did not state facts sufficient to entitle the plaintiff to the relief demanded, and therefore that the decree entered in said action by the court was erroneous.
As above stated, the consolidated suit was simply one suit, and only one judgment could be entered therein. The fact that the decree in the equity suit was entered erroneously is sufficient to reverse all judgments appealed from and direct a new trial. It therefore becomes unimportant to consider the questions as to whether the statement on motion for a new trial in the suit at law was settled in time, or whether the court erred in refusing the nonsuit to plaintiff’s first cause of action in the suit at law, or whether the court erred in overruling the defendant’s motion for a new trial in the equity suit, or whether we have a right to consider the sufficiency of the evidence where the record does not disclose that it contains all the evidence. We remark, however, that, under the statute providing for the settlement of statements and bills of exceptions, it is the duty of the court settling the same to cut out all immaterial evidence, so that if the bill of exceptions or statement appears to contain all material evidence, or the substance thereof, given on the trial of the case — referring to the points brought before this court for review — we have full power and authority to consider the insufficiency of the evidence, if properly specified.
We advise that the judgments appealed from be reversed, and the cause remanded wdth instructions to the district court that it first determine whether the two original suits can be consolidate!’ under the statute, and, if it is of the opinion that they cannot be consolidated, to set aside the order of consolidation as now made, and require the actions to be tried separately. If the court below is of the opinion that the original suits can be consolidated, we advise that it try the consolidated suits as a single suit — hearing the equitable suit first and then the action at law — and enter a single judgment settling all the controversies involved.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgments are reversed, and the cause is remanded with instructions to the court below that it first determine whether the two original suits can be consolidated under the statute, and, if it is of the opinion that they cannot be consolidated, to set aside the order of consolidation as now made, and require the actions to be tried separately. If the court below is of the opinion that the original suits can be consolidated, we advise that it try the consolidated suits as a single suit, consisting of various causes of action — hearing the equitable suit first and then the action at law — and-enter a single judgment settling all the controversies involved.
Mr. Ci-iiee Justice Brantlt, not having heard the argument, takes no part in this decision.
liehearing denied.
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] |
Per Curiam.
Upon motion of the appellant the appeal herein is dismissed without prejudice.
Messrs. Toole & Bach, for Appellant.
Messrs. Woody & Woody, and. Mr. E. E. Hershey, for Respondents.
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PION. I. B, LESLIE, Judge of the Eighth Judicial District,
sitting in place of Mr. Justice Holeowat, delivered the opinion of the court.
This is an action to recover damages for libel. A trial of the cause in the c.ourt below resulted in a verdict for the defendant. Plaintiff moved for a new trial, which was denied, and from the judgment and the order overruling said motion the plaintiff appeals.
The complaint embraces two separate counts, in each of which plaintiff claims damages in the sum of $5,000. The first count is for the publication of a certain alleged false, malicious and unprivileged communication on July 13, 1901, in the Avant Courier, a newspaper of general circulation, which publication plaintiff alleges tended to and did injure him in respect to his profession of school teacher. The second count is for a certain other false, malicious and unprivileged publication in said newspaper of August 24, 1901. Answering each count, the defendant admits the publication of said two articles, denies they were false, malicious or unprivileged, or that they tended to or did injure plaintiff in his profession, or that he was injured in any sum whatever. Por further answer to each count, the defendant, by affirmative averments, pleads the truth of the matter contained in said publications, and also pleads certain facts in mitigation, not necessary to enumerate. The plaintiff demurred to each defense of the answer upon the ‘ground that the same did not state a defense. This demurrer was overruled, and plaintiff replied.
1. The court did not err in overruling the demurrer to the answer. It is proper to suggest at this time that the first count of the complaint states a cause of action. The article, as set forth in this count, is as follows:
“As to Paxton’s popularity as a teacher it can be illustrated by the fact that out of forty-five children in the district but four or five were attending when the superintendent visited the school last week. This is the only school Paxton has taught in the county, and for the good of the schools, I hope it will be the last one. He taught one term in Jefferson, and one in Madison county, and they want no more of him. The statements in the Chronicle are known to be false here. We knew that Paxton was a man of many attainments, but did not know that he was a common liar before. As he has gone to the Crow reservation now he has probably found his level.”
Whatever may be said of other portions of the foregoing article, to publish, by a written charge, of an individual, that he is a common liar, is an imputation tending to expose such individual to hatred, contempt, ridicule or obloquy, or injure him in his occupation; and if untrue, and not privileged, is libelous per se, and actionable. Such is the very nearly universal conclusion of the courts where this question has been adjudicated. A collection of the cases relating to this subject may be found in 18 Am. and Eng. Ency. of Law, 2d Ed., p. 921. See, also, Townshend, Libel and Slander, Sec. 177.
But returning to the question presented by the demurrer, in the construction of language regard is to be had to the words employed, and the meaning which, under all the circumstances of their publication, may be presumed to have- been - conveyed to those to whom the publication is made. While the written charge, “We knew that Paxton was a man of many attainments, but did not know that he was a common liar before,” is in its nature, libelous per se, and needs no colloquium or innuendo to illustrate its application or meaning, and the vice imputed to plaintiff by the words standing alone is unqualified, and as broad as language can make it, yet, if the defamatory language is connected with other language which limits or affects its meaning, or might tend to mitigate the damage, its construction must be in relation to such other language, and in arriving at the sense in which the language is employed it is proper to consider the cause and circumstances of its publication and the entire language used. It is apparent on its face that the publication in question was a part of an article published in response, in part at least, to certain statements contained in the Chronicle. The matter set forth in the answer, upon which defendant relies for .justification, is the history of a controversy which continued for some time between the plaintiff and the defendant, and the publication in question was a part of one of the articles constituting this controversy. The defendant alleges that the charge above referred to, implying a. want of veracity in plaintiff, was limited in its meaning and application to certain statements previously published in the Bozeman Chronicle at the instance of plaintiff, and not otherwise, and that such statements were untrue. He also pleads facts upon which is based the alleged truth of the other statements contained in said publication. The answer in this respect presented an issue as to the truth of the statements of the publication, upon which defendant was entitled to be heard, and amply meets the requirements of the rule urged by counsel for appellant: “When the imputation complained of is a conclusion from certain facts, the plea of justification must aver the existence of a state of facts which will warrant the inference of the charge.” (Newell, Defamation, Slander and Libel, p. 653.)
2. At the trial defendant objected to the introduction of any evidence as to plaintiff’s second cause of action upon the ground that the publication was not libelous per se, and that no special damages were alleged. The objection was sustained, and plaintiff excepted. Plaintiff’s second cause of action is based upon the publication of August 24, 1901, heretofore referred to. The allegations are, in substance, that plaintiff is a school teacher, following that profession; that the article referred to was of and concerning him in his profession, occupation and business as such school teacher, and referred to his application for the position as teacher in the public school at Willow Creek, Gallatin county; that the said publication was false, malicious and unprivileged, and tended to and did injure him in his profession and occupation as a school teacher, to his damage in the sum of $5,000. The article is set forth in the complaint, and is as follows:
“There were a number of applicants for the school, among them being the noted Paxton, who has done more damage and less good than any teacher we have ever had. This district knows when it has had enough, so it turned the gentleman down. A Miss Evans has been offered the position of teacher and we hope soon to have a good school running.”
In this count of the complaint there is no colloquium, other than as stated above. There is no innuendo at all, and no allegation of special damages. The only damage claimed is that .sustained by plaintiff in liis occupation and profession of school teacher, thus limiting the right of recovery, -if any, to such general damages as were sustained in the special relation named. AVhcn the publication is libelous per se, the plaintiff may recover general damages without allegation or proof of special damages. In actions of this character “it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff.” (Code of Civil Procedure, Sec. 751.) Put in other respects the rules of common-law pleading remain unaltered.
In Harris v. Zanone, 93 Cal. 65, 28 Pac. 845, in construing a similar statute, the supreme court says: “If the words used are not libelous in themselves, or if they have some occult meaning or local signification, and require proof to determine their meaning or to show that they are libelous, or if they are words in a foreign language, it is necessary to make such allegation of their meaning as will show them to be actionable, and by averment ffo ascertain that to the court which is generally or doubtfully expressed.’ Van Vechten v. Hopkins, 5 Johns. 220, 4 Am. Dec. 339. The statute dispenses with them (that is, the colloquium and innuendo) only so far as they show that the defamatory words applied to the plaintiff, and goes no further. The averments necessary in common-law pleading to show the meaning ,of the words must still be made” — citing authorities.
AVhen the words are unequivocal in their import, and obviously defamatory, it is not necessary to employ colloquium or innuendo to explain their application and meaning; but if the words be of doubtful significance, or derive their libelous character not from their own intrinsic force, but from extraneous facts, it is necessary to allege the meaning intended, or set forth such extraneous facts by proper averments. (13 Ency. Plead, and Prac. p. 33, and cases cited.) To say of a school teacher that he is “noted,” though used in an invidius sense, and referring to a particular district, “has done more damage and less good than any other teacher,” and, referring to his application for a position as teacher of its school, “this district knows when it has had enough, so it turned the gentleman down,” cannot be said to impeach him in any of those qualities which are essentials of an accomplished school teacher, and to falsely assail which it is slanderous or libelous per se. Says hlr. Newell: “It by no means follows that all words to the disparagement of an officer, professional man or trader will, for that reason, without proof of special damages, be actionable in themselves. Words, to be actionable on this ground, must touch the plaintiff in his office, profession or trade. They must be shown to have been spoken of the party in relation thereto, and to be such as would prejudice him therein. They must impeach either his skill or knowledge, or his official or professional conduct.” (Newell on Slander and Libel, p. 168, par. 2; p. 174, par. 7.) The publication of August 24th does not disparage plaintiff in, or impute to him a lack of, any of the qualities or qualifications which are prerequisites to the due fulfillment of the duties of a school teacher. It does not appear on the face of the publication that the capacity or skill of the plaintiff as a school teacher, his scholarly attainments, or his professional conduct or integrity, were in any wise involved in the matters referred to, and the court properly withdrew from the jury all consideration of the second count of the complaint.
3. Plaintiff called defendant as a witness, and offered to prove by him that since the publication constituting the basis of the first cause of action defendant had tried to have revoked the certificate of plaintiff as a school teacher, to which offer objection was made and sustained, and plaintiff excepted. Other witnesses were cálled by plaintiff, by whom he offered to prove that defendant had stated to them, after the institution of this action, that he would take away the plaintiff’s certificate, or words to that effect; to all of which objection was made and sustained, and plaintiff excepted. Plaintiff’s assignments with respect to these offers and the refusal of the court to allow the testimony introduced are Nos. 12, 13, 14, 15, 16, and may be discussed -together.
Libel is defined by Section 32 of the Civil Code of Montana as follows: “Libel is a false and unprivileged publication in writing, printing, picture, effigy or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Under this statute the existence of malice is not a necessary ingredient to entitle the plaintiff to recover such sum as will fairly compensate him for the injury sustained. It would present no obstacle to such recovery that the defendant, acting in good faith, had probable cause for belief, and at the time did believe the charge to be true, and was absolutely free from malice.
Two classes of damages may be recovered in actions for libel, to-wit, actual damages and exemplary damages. The presence or absence of malice becomes material only as a circumstance affording a basis for increasing or diminishing the amount of recovery, and in cases involving the defense of privileged publication. The right to recover being shown, and the presence of malice wanting, compensatory damages can only be awarded; but, join to such right of recovery the element of malice, and exemplary damages may be added to the actual or compensatory damages. Malice is an inference of fact which the jury may draw from the libelous publication alone. (Samuels v. Evening Mail Ass’n, 75 N. Y. 604; Warner v. Press Pub. Co., 132 N. Y. 181, 30 N. E. 393; Clements v. Maloney, 55 Mo. 352; Schmisseur v. Kreilich, 92 Ill. 348; Evening News Association v. Tryon, 42 Mich. 549, 4 N. W. 267, 36 Am. Rep. 450.)
The plaintiff may, if he elect to do so, rely solely upon the libelous character of the publication to show malice, but he is not limited to it. He may also call to his aid and make use of any extrinsic facts which tend to show the presence of malice. It is impossible to look into the mind, and interpret the motives which prompt its action, and resort may therefore be had to acts and declarations, if any, emanating from the individual touching the same, and observance of his conduct and bearing in relation to the subject-matter. While-there is some conflict among the authorities as to the competency of statements and defamatory charges made after the commencement of the action, the better reasoning and decided weight of authority seem to favor the admissibility of other defamatory charges and of statements made by the defendant, even though after the commencement of the action, which may tend to evince a wish to vex, annoy or injure the plaintiff, but for the purpose only of proving malice, and not as affording a basis for extra compensation therefor. Some of the cases bearing upon this subject are: Post Pub. Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201; Spolek Denni Hlasatel v. Hoffman, 105 Ill. App. 170; Hintz v. Graupner, 138 Ill. 158, 27 N. E. 935; Beals v. Thompson, 149 Mass. 405, 21 N. E. 959; Norris v. Elliott, 39 Cal. 72; Chamberlin v. Vance, 51 Cal. 75; Harris v. Zanone, 93 Cal. 65, 28 Pac. 845; Garrett v. Dickerson, 19 Md. 418; Fry v. Bennett, 28 N. Y. 324; Titus v. Sumner, 44 N. Y. 266; Robbins v. Fletcher, 101 Mass 115; Noeninger v. Vogt, 88 Mo. 589; Bee Pub. Co. v. Shields, (Neb.) 94 N. W. 1029; Larrabee v. Minn. Trib Co., 36 Minn. 141, 30 N. W. 462; Faxon v. Jones, 176 Mass. 206, 57 N. E. 359; Ward v. Dick, 47 Conn. 300, 36 Am. Rep. 75; Davis v. Starrett, 97 Me. 568, 55 Atl. 516.
The’plaintiff should have been permitted to show the making by defendant of threats, if.any, to secure the cancellation of his certificate entitling him to teach in the public schools.
4. In assignments of error Nos. 18, 19, 20 and 21 appellant complains of the action of the court in overruling plaintiff’s objection to certain questions asked defendant with respect to his motives in using certain language in the articles alleged to be libelous, and in permitting him to explain certain statements therein, and whether certain statements made by him were true, and as to the source of his information with respect to the trutli of certain statements. These were some of the facts involved in the issues presented by the pleadings, and there was no error in these rulings.
5. Error is assigned for the refusal of the court to give certain instructions proposed by the plaintiff. In the instructions which were given to the jury, the court incorporated the substance of those offered by plaintiff, and it was not error to refuse to adopt those submitted by plaintiff. (Territory v. Pendry, 9 Mont. 67, 22 Pac. 760; State v. Mahoney, 24 Mont. 281, 61 Pac. 647.)
6. Appellant complains of certain instructions given by the court, to-wit, Nos. 1, 10, 12 and 13. Instruction No. 1 is confined to a statement of the issues of the ease. While the jury may be permitted to take with them to the jury room the pleadings in the case, and, if they desire, study the issues for themselves, the practice of setting forth in the instructions a clear and concise statement of the nature of the case and the issues to be determined is to be commended, and the instruction is not objectionable. Instruction No. 10 informed the jury that plaintiff was claiming damages for injury to him in his profession of school teacher, and not as an individual, and in determining whether or not he had been damaged they should consider only such facts and circumstances as tended to show injury to him in the capacity of school teacher, and that they could not consider any facts and circumstances that tended to show injury to him as an individual. There is no suggestion anywhere in the complaint that plaintiff was damaged in his capacity as an individual, but the averments of the complaint are that the injury was to plaintiff in respect to his profession. The action was thus confined, by the terms of the complaint, to such - damages as plaintiff might have sustained in his profession, and the court properly excluded from the jury all consideration of damage to plaintiff as an individual.
7. Instruction No. 13 contains nothing of which plaintiff can complain under the evidence as disclosed by the record.
8. A more serious question is presented by instruction No. 12. It reads as follows: “You are instructed that plaintiff’s cause of action is fox alleged damages to his business as a school teacher, caused by the publication of the alleged libelous matter set out in the complaint on the 13th day of July, 1901, and that you cannot award him any damages unless such damages he may have received, if he have received any, were caused simply and only by said publication, and not otherwise; that is to say, if you should find that the plaintiff was damaged in his position and occupation as a school teacher, but that said damage was brought about and caused partly by the publication of other libels or the statement of other false charges or any other person, then you must find for the defendant, notwithstanding you might also find that the damage was partly caused by the publication set out in the complaint.” By this instruction the jury were given to understand that, although the plaintiff might have convinced them by satisfactory proof that he sustained damage in his position as school teacher by the publication of July 13, 1901, yet, if such injury was caused in part by other libelous publications or false charges, it would be the duty of the jury to find for the defendant. Whether this instruction would be permissible in an action in which the plaintiff was seeking to recover special damages alone, or as confined to that character of damages, is not presented by the record in this case, and is not decided. Plaintiff’s first cause of action affords a basis, if the facts warranted it, for the recovery of both general and special damages, but a diligent examination of the record fails to disclose any evidence which would entitle the plaintiff to recover any amount in the way of special damages. The maximum of plaintiff’s right to recover, therefore, if at all, was only such general damage sustained on account of the publication declared on. When a false and xmprivileged publication possessing the ingredients that stamp it as libelous per se is established, injury is presumed to ensue therefrom as the direct product of such publication, and affords ground for the allowance of at least nominal damages. (Wilson v. Fitch, 41 Cal. 386; Mowry v. Raabe, 89 Cal. 609, 27 Pac. 157; Childers v. San Jose Mercury, 105 Cal. 284, 39 Pac. 903, 45 Am. St. Rep. 40; Turner v. Hearst, 115 Cal. 394, 47 Pac. 129; 18 Am. and Eng. Ency. of Law, 2d Ed., p. 1081, and cases cited.)
Kef erring to this subject, Mr. Sutherland says: “There is no legal measure of damages for such a wrong. The amount which the injured party ought to recover is referred to the sound discretion of the jury. * * * When the publication is actionable per se, the legal presumption of damage goes6to the jury, and they, in view of the particular circumstances of the case, are required, in the exercise of their judgment, to determine what sum will afford reparation.” ( 3 Sutherland on Damages, 643-647.)
To recognize the doctrine embodied in instruction 12 as correct law in its application to an action to recover general damage would operate, in effect, to destroy the legal presumption-above referred to of presumed injury inherent in per se defamatory charges. It would create a means of defense in actions of this character never contemplated by any principle of law. As pertinently suggested by counsel for appellant, all that a defendant would have to do would be to publish two libels against a party, and then introduce proof to show that he was damaged by both, and plaintiff could recover in neither. It is not an answer to this to say an action could be based upon both. A plaintiff may elect to unite several causes for injuries to character (Code of Civil Procedure, Sec. 672, Subd. 5), but he is not required to do so. Again, the defendant might publish a libelous article, and procure one of similar import to be published by another, and the same result would follow. Such a principle, if it were allowed to control in cases of this character, would seriously jeopardize the interest of a plaintiff whenever he exercised the valuable and unquestionable right to show other defamatory charges for the purpose of proving malice. The case of Ward v. Dick, 47 Conn. 300, 36 Am. Rep. 57, and others cited by counsel for respondent in support of the correctness of the instruction under consideration, are not in point. They, in effect, decide that other libels or slanders than the one sued on, or a repetition of the one sued on, cannot be made an extra element of damage for which compensation may be awarded — - a doctrine which will meet with no dissent here. The instruction was an erroneous statement of the law, and the presumption is that it was prejudicial to the plaintiff (State v. Mason, 21 Mont. 311, 61 Pac. 861), and the judgment should be reversed, unless there is merit in a contention raised by counsel for respondent, based upon Article III, Section 10, Constitution of Montana. So much of the section as relates to this case reads as follows: “In all suits and prosecutions for libel, the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.”
Counsel for respondent argues that, the Constitution having clothed the jury, in suits and prosecutions for libel, with power to determine the law and the facts, and in this case the jury having found a verdict against the plaintiff, it "becomes immaterial how erroneous the- instructions of the court may be; that no error can be remedied by appeal, because the instructions are merely advisory, and may be disregarded by the .jury in the exercise of this power to determine the law and the facts. The history of this provision shows it is the outgrowth of an act of the English parliament, adopted in 1192, and known as the “Eox Libel Act.” Its enactment, in modified forms, into the Constitutions of many of the States of the Union has followed, some of them limiting its operation to criminal prosecutions for libel, while others extend it to civil actions for libel as well; in some is omitted the clause “under the direction of the court,” in others it is incorporated, as has been done in the Constitution of this state. (Cooley’s Constitutional Limitations, pp. 160, 463.) This provision has received the earnest consideration of the courts of last resort of many of the states, and there exists great contrariety of opinion as to the extent of power conferred upon the jury, independently of the court, to determine the law and the facts and judge of the whole case. A review of the cases relating to this subject can serve no useful purpose here, as the questions whether the jury is required to accept the in structions of the court as conclusive, and what power resides in this court to review a case where the instructions and other procedure of the trial court are free from error, are questions not involved in this case. Whatever view is adopted, the courts are almost, if not quite, a unit upon the proposition that it is the duty of the judge to decide upon the sufficiency of the pleadings, the admissibility of testimony, instruct the jury, and discharge the other functions devolving upon him down to the final submission of the cause to the jury, as in other cases. In Missouri, where the doctrine prevails that the jury may disregard the instructions, it is said in State v. Armstrong, 106 Mo. 395, 16 S. W. 604, 13 L. R. A. 419, 27 Am. St. Rep. 361, that: “While the judge may assist and inform them what the law is, and it is his duty to do so, still they are, hy virtue of organic law, the final judges in a prosecution for criminal libel.” In Drake v. State, 53 N. J. Law, 23, 20 Atl. 750, Justice Nixon, construing a similar constitutional provision says: “It was not intended to affect the duty of the court to decide all questions of law relating to the admission of testimony and such other matters as are preliminary to the final submission of the case to the jury; nor to affect its duty to instruct the jury with regard to their legitimate province in the decision of the cause, and'with regard to those general principles of the criminal law and of the law of libel which are of a technical nature, and with which the jury can scarcely become acquainted, save through the instructions of the court. None of these matters were ever subject to doubt in prosecutions for libel, nor did they bring about any of the legislation either in England or in this country.. On these points the instructions of the court retain the same authority as they previously possessed.” See, also, Arnold v. Jewett, 125 Mo. 241, 28 S. W. 614; Hazy v. Woitke, 23 Colo. 556, 48 Pac. 1048; Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624; State v. Zimmerman, 31 Kan. 85, 1 Pac. 257; State v. Whitmore, 53 Kan. 343, 36 Pac. 748, 42 Am. St. Rep. 288; State v. Rice, 56 Iowa, 431, 9 N. W. 343; Montgomery v. State, 11 Ohio, 424; State v. Syphrett, 21 S. C. 29, 2 S. E. 624, 13 Am. St. Rep. 616, and cases cited in note. In State v. Rice and State v. Syphrett, supra, it was held that an erroneous instruction was ground for reversal.
The duty of the court to instruct the jury being recognized, it follows as a corollary that a correct declaration of the legal principles involved should .be given to the jury, otherwise the requirement to instruct would be a needless formality, barren of all useful purpose.
There are other assignments which have been examined but there is no merit in them. Because of the errors referred to, the judgment and order are reversed, and the cause remanded for a new trial.
Reversed and remanded.
Me. Chiee Justice Brantly concurs.
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] |
MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
Appeal from a judgment of nonsuit. Joseph Adams, who was plaintiff’s intestate, brought suit against the New Year Gold Mines Company to recover damages for personal injury caused by the alleged negligence of defendant.
The material allegations of the complaint as to this negligence are as follows:
“(4) That the plaintiff, at the time of the accident, hereinafter set forth, and for some time prior thereto, was actually engaged and employed by the defendant as a miner in said Old Bach mine; that the plaintiff was employed as such miner in drilling, blasting and driving a tunnel in said mine.
“(5) That it was the duty of the defendant to provide and maintain a reasonably safe place for the plaintiff to work in, and to keep and maintain said tunnel in which plaintiff was working in a safe condition, so as not to expose the plaintiff to any unnecessary or extraordinary hazard or peril.
“(6) That the defendant failed and neglected to perform and discharge its said duty to the plaintiff, and knowingly and negligently permitted the place in which plaintiff was working to become unsafe, thereby exposing the plaintiff to extraordinary hazard and peril, as is more particularly set out in the next paragraph herein.
“(7) That on the morning of the 25th of September, 1900, while the two men employed on the day shift in said tunnel were at work therein, and immediately after the two miners aforesaid had loaded a hole with blasting powder in the bottom of the tunnel, as it was their custom and duty to do at said time, the foreman of the defendant came to the place where said men were working, and ordered and directed them not to fire the hole loaded by them with blasting powder as aforesaid; that said men obeyed the instructions of said foreman, and left the said blast as it was, and the same remained unexploded until the accident to the plaintiff as herein stated; that said men on the day shift quit work at 6 o’clock on said day, and that the plaintiff and his partner on the night shift went to work, as was their duty, at 7:30 p. m. on said day, in the same place where said day shift had been- working; that the plaintiff, shortly after commencing work as aforesaid, started in to clean up the bottom of said tunnel which had been left by the day shift, and which it was the duty of the plaintiff to do, and plaintiff accordingly began to drill holes in the bottom of said tunnel a few feet from the face of the drift, for the purpose of loading them with blasting powder and cleaning up said bottom, and while the plaintiff was so drilling in said place the charge of blasting powder loaded by the day shift in the morning as aforesaid exploded, which explosion caused plaintiff to receive severe and grievous injuries, his left eye .being blinded and the sight in the other eye being seriously affected, his jaw being fractured, most of his teeth being knocked out, his side and chest being severely bruised and injured, his left hand being almost blown off, so that it was necessary to have the same amputated, his right hand being rendered crippled and useless, and suffering also a compound fracture of the left arm between the elbow and the wrist, said injuries causing him great and excruciating pain and suffering, and confining him to the house and hospital for several months; that when plaintiff went to work on the evening of September 25th as aforesaid, and up to the time when said accident occurred, plaintiff did not know and had no means of knowing that there was at said place, or anywhere in said tunnel, any charge or charges of blasting powder not shot off, and could not have discovered the fact except by being informed thereof; that the defendant and its said foreman knew, or by the use of reasonable diligence might have known, of the existence of said unexp’loded blast, and of the danger to the plaintiff therefrom, and it Avas the bounden duty of the defendant and its said foreman to convey such information to plaintiff, but that the defendant and its said foreman failed and neglected so to do, and willfully, knoAAÚngly and negligently allowed and directed the plaintiff to go to Avork in said place, Avhere his duty called him, in ignorance of said danger; that said explosion occurred and plaintiff Avas injured as aforesaid without any fault or negligence on his part, but solely because of the defendant’s negligence as aforesaid; that the said foreman Avas the vice-principal of the defendant in all matters relating to the working and operating of said Old .Ilach mine, and with reference'to the employment of the plaintiff and the other miners mentioned herein, and that the negligence of said foreman as aforesaid was the negligence of the defendant.”
“(9) That by reason of the said neglect and omission of the defendant to keep and maintain a safe place wherein plaintiff was required to work as aforesaid as defendant’s employe, and by reason of the injuries suffered by plaintiff solely because of said negligence and want of ordinary care on the part of the defendant, as hereinbefore set forth, the plaintiff has been damaged by the defendant in the sum of thirty thousand dollars.”
The answer of defendant denies that the injuries to plaintiff were caused by the negligence of defendant. Sets up contributory negligence on the part of plaintiff. Alleges that he had been employed at the mine for some time, knew the conditions, and knew that in running the tunnel it was necessary for the employes to drill holes, put blasts in the rock in the breast of the tunnel, and explode them; that he had been engaged for a long time in the performance of that kind of work, and well knew that sometimes such blasts would miss fire and fail to go off, and that it was sometimes difficult for the man who put in blasts to ascertain whether all the balsts' fired went off; that the danger from unexploded blasts was incident to this class of employment ; that those engaged in the work of running the tunnel assumed the risk; that he voluntarily continued his services, with full knowledge of the risk, without objection; and that, if plaintiff was injured by the negligence of any one, it was the negligence of fellow servants, for which defendant was not responsible.
At the close of plaintiff’s testimony, defendant moved for a nonsuit, which was granted, and judgment entered in favor of defendant. From this judgment plaintiff appeals.
1. Counsel for appellant insists that, by the decisions of this court upon appeals from judgments of nonsuit, it is well settled that whatever the evidence tends to prove will be considered as proven, and that a judgment upon a nonsuit will not be sus tained unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had in any view which could be reasonably taken from the facts which the evidence tends to prove. (Cain v. Gold Mountain M. Co., 27 Mont. 529, 71 Pac. 1004; Coleman v. Perry, 28 Mont. 1, 72 Pac. 42; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Michener v. Fransham, 29 Mont. 240, 74 Pac. 448; Nord v. Boston & Montana Consol. C. & S. Mining Co., 30 Mont. 48, 75 Pac. 681; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 601; Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852.)
Under this rule, however, the record must contain competent testimony fairly tending to affirmatively prove the allegations of the complaint. The burden of proof is upon plaintiff, and is not satisfied if the conclusion to be reached from the testimony offered is merely a matter of conjecture. If such conclusion be equally consonant with the truth of the allegations, and with' some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied. Thus, in an ordinary case of negligence,like the one under consideration, plaintiff has the burden of proving the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff’s injury. If the testimony leaves either the existence of negligence of defendant, or that such negligence was the proximate cause of the injury, to conjecture, it is insufficient to establish plaintiff’s case. If the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with either of the issues to be proven, it does not tend to prove them, within the meaning of the rule above announced. The use of the word “tend” does not contemplate conjecture. It contemplates that the testimony has a tendency to prove the allegations of the complaint, and not some other theory inconsistent therewith. (Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Deschenes v. Concord & M. Railroad, 69 N. H. 285, 46 Atl. 467; Searles v. Manhattan Ry. Co., 101 N. Y. 661, 5 N. E. 66; Dobbins v. Brown, 119 N. Y. 188, 23 N. E. 537; Atchison, T. & S. F. R. Co. v. Alsdurf, 68 Ill. App. 149; Breen v. St. Louis Cooperage Co., 50 Mo. App. 202; Meehan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518; 2 Labatt on Master and Servant, Secs. 283, 287, and notes.)
Justice Brewer uses the following language in Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361: “And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employe is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”
The record discloses no direct evidence concerning the occurrence of the accident. Adams, the injured man, died before the trial of the case, and his administrator was substituted. The evidence concerning the actual facts occurring at the time of the accident is-therefore entirely circumstantial, and the direct and proximate cause thereof is entirely a matter of inference, to be deduced from the circumstances and other facts detailed by the witnesses. We do not desire to be understood that a plaintiff may not make out a case of actionable negligence against a defendant by circumstantial evidence, but such circumstantial evidence must tend directly to establish the cause of action, and not some theory inconsistent therewith.
In this case the accident is claimed to have occurred from an unexploded charge. This is possible. It is equally possible that it occurred from an unexploded piece of dynamite which had become dislodged from a loaded hole by other blasts, and inter mingled with, the waste which it was Adams’ duty to clean up, or from the negligence of Adams himself. Many other theories of the accident present themselves, which are equally deducible from the facts disclosed by the record. Under the above authorities, this is insufficient to satisfy the rule that the burden of proof is upon plaintiff to show by competent proof that the defendant was negligent, and that the injury occurred as the proximate result of such negligence.
2. While it is a general rule that a master is bound to use reasonable diligence to provide a servant with a safe place in which to work, and to maintain such condition during the term of employment, such rule should have no application to a case when the plaintiff and his fellow servants are creating the place of work; when it is constantly being changed in character by the labor of the men working upon it; when it only.becomes dangerous by the carelessness or negligence of the workmen, or by the negligent manner in which they use the tools or materials furnished for their work; when the dangers which arise are very short-lived; or when, by the negligence of the workmen, the place is rendered unsafe without the master’s fault or knowledge.
The Supreme Court of Utah, in the case of Anderson v. Daly M. Co., 16 Utah, 28, 50 Pac. 815, uses the following language: “While the employer is bound to furnish a safe place for the servant to work in, he is not bound to make it an absolutely safe place; but in a place where the nature of the business is such that Jhe conditions are continually changing by reason of the putting in and setting off of blasts, and of continuing excavations in a shaft, and thereby temporarily dangerous conditions arise, the employer cannot be held responsible therefor. * * The employer was bound to furnish a reasonably safe place and appliances with which to do the work. But where the nature of the business is extremely dangerous, and conditions are necessarily continually changing by reason of placing and setting off blasts, whereby dangerous conditions arise continually through the acts of the servant, without the knowledge of the master, the employer cannot be held, responsible therefor without his fault.”
In Davis v. Trade Dollar Cons. M. Co., 117 Fed. 122, 54 C. C. A. 636, the court says: “It is true that the law of master and servant requires that the former furnish the latter a safe place in which to work, but the master is not required to furnish the servant a safe place in which to work where the danger is temporary, and when it arises from the hazard and the progress of the work itself, and is known to the servant. The master is not required to be present at the working place at all times in person or by a representative, to protect a0 laborer from the negligence of his fellow workmen or from his own negligence in the constantly changing conditions of the work.”
In Browne v. King, 100 Fed. 561, 40 C. C. A. 545, the court says: “The danger was temporary. It was danger incident to the very work plaintiff was employed to perform. Until in the progress of the work the missed shot failed to explode, there was no danger.” See, also, Mancuso v. Cataract, etc. Co., (Sup.) 34 N. Y. Supp. 273; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; Mechan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518; Finlayson v. Utica M. & M. Co., 67 Fed. 507, 14 C. C. A. 492; City of Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Wiskie v. Montello Granite Co., 111 Wis. 443, 87 N. W. 461, 87 Am. St. Rep. 885; Labatt on Master and Servant, Secs. 269, 588, 612.
The cases of Shannon v. Cons. T. & P. Mining Co., 24 Wash. 119, 64 Pac. 169, and McMillan v. North Star M. Co., 32 Wash. 579, 73 Pac. 685, 98 Am. St. Rep. 908, are seemingly to the contrary, but clearly distinguishable from the case at bar, as to the facts involved. But however this may be, we are of the opinion that the rule adopted by this opinion is based upon the better reasons, and is better adapted to’ the conditions of this state, where the mining industry is of such vast importance. Any other doctrine would place the master-in the position of an in- „ surer.
3. We are of the opinion that no negligence of defendant was shown, and that no proof was offered which even tended to show such negligence. Negligence is a breach of duty. The duty of defendant was to exercise due diligence in furnishing and maintaining a reasonably safe place in which Adams was to work. There is no evidence in the record tending to show that the tunnel was an unsafe place of itself, and it is only claimed that it became unsafe by reason of a blast left by the workmen on the preceding shift unexploded and undischarged. The negligence of defendant is claimed to exist in this case upon two theories: First, that the miners who worked in the tunnel at the point where Adams worked and was injured, during the preceding shift, prepared and loaded two holes, but did not fire them because directed not to do so by Winston, the foreman, and that such holes were left unexploded until the time of the accident, and that Adams was not notified of these facts; and, second, that an unexploded hole was left at the breast of the tunnel, and that Adams was not notified of the existence of such hole.
As to the first theory. The proof presented in the record discloses the following state of facts: Roberts and Lacourcier were working in the tunnel — Lacourcier at the breast thereof, and Roberts stoping ore about ten feet back of the breast, above the roof of the tunnel; that Lacourcier had drilled and loaded ready for blasting two holes near the bottom of the tunnel, at its breast; that Roberts had stoped down ore which lay in the bottom of the tunnel adjacent to the place where the loaded holes were situated. Winston, the foreman, came into the tunnel. A conversation ensued between Roberts and Winston, whereby the attention of Winston was called to the fact that, if the holes were shot at that time, the waste arising from the shots would get mixed with the ore which Roberts had stoped down, and that Winston said that the carman (whose duty it was to remove the ore after it had been stoped down) was in the other tunnel, and ivould not be up there until after dinner. Winston then directed Lacourcier not to fire the holes. It is evident from these circumstances that the only reason Winston told Lacourcier not to fire the holes was because the waste from the blasts would become mixed with the ore that had been stoped by Roberts and lay on the floor of the tunnel. It will be noticed that no instructions were given to Lacourcier not to fire the holes after the ore had been removed. Lacourcier did not fire tbe boles at that time, but proceeded with bis work of drilling other boles, but before tbe close of tbe shift at 6 o’clock in tbe evening Lacourcier fired three boles and Roberts fired three boles. Tbe ore which lay in the bottom of tbe tunnel when Winston directed Lacourcier not to fire tbe shots must have been removed, as tbe only object of such directions was to prevent tbe waste becoming mixed with tbe ore. Tbe result would have been tbe same by firing any of the blasts in tbe face of the tunnel. It is very evident that it was only intended by Winston, and understood by Lacourcier and Roberts, that tbe boles were not to be fired until tbe ore was removed. Roberts testifies that they fired six shots — three boles that had been drilled and loaded by Roberts, and three which bad been drilled and loaded by Lacourcier; that after lighting tbe fuses they retired some distance, and listened for tbe reports of the shots, and counted six of them. Roberts says be could distinguish tbe boles fired by himself from tbe boles fired by Lacourcier because tbe ground was softer, and be bad put in larger charges. Lacourcier and Roberts then left tbe mine, believing that all tbe boles which bad; been loaded in tbe tunnel during the shift had been fired by them. Tbe evidence discloses that Winston was not in the tunnel during tbe afternoon, and had no knowledge as to whether tbe boles which be bad directed in tbe forenoon should not be fired, bad been afterwards fired by Lacourcier. There is no evidence tending to show that defend’ ant or any of its officers or superintendent knew of tbe instructions of Winston, or bad any knowledge as to whether tbe shots were left unfired before the close of tbe shift. There was, therefore, no negligence proven against either Winston or defendant.
As to tbe second theory. It is. very doubtful whether, under the complaint, tbe plaintiff can claim that any negligence is alleged except that comprehended in tbe first theory, above discussed ; but, inasmuch as tbe second theory of plaintiff is as equally unsupported by the evidence as tbe first, we will not pass upon the sufficiency of the allegations of the complaint in that regard. The second theory is based upon the proposition that there ivas an unexploded hole near the breast of the tunnel which the defendant knew about, or by the exercise of reasonable diligence could have known about, and did not inform Adams of its existence. We cannot conceive how the defendant could have known of an unexploded hole. Neither do we believe that it Avas defendant’s duty, before alloAving the next shift to go to Avork, to investigate the conditions, and ascertain Avhether all the holes fired by Roberts and Lacourcieir had exploded. Roberts and Lacourcier Avent off shift at 6 o’clock, immediately after firing the holes. The testimony discloses that it would be unsafe for any one to go into the tunnel for some time after the explosions on account of the bad air generated by the explosions, and the danger of further explosions from parts of the charges AAdiich might not have been fully exploded. Adams Avent on shift at 7:30 in the evening. It Avas his duty to clean up the refuse in the tunnel caused by the explosions of shots fired by Lacourcier and Roberts. It Avas the usiial custom, just before the close of every shift, for the miners Avho Avorked in the tunnel to fire their shots, and it Avas the duty of the incoming shift to clean up the refuse throAvn out by such shots before going to Avork in the advancement of the tunnel. Adams knew that shots had been fired. The testimony also discloses that all the miners knew that sometimes there might be a missed hole, Avhich Avas extremely dangerous. No one knew or thought any hole had missed fire or Avas unexploded. Why any one should tell Adams that there Avas an unexploded or missed hole in the breast of the tunnel Avhen nobody believed it existed is beyond comprehension. Testimony was given to show that it Avas the custom in that mine for the miners, Avhen they Avent off shift, if there Avas a missed hole, to notify the shift succeeding them; but this Avas only in eases where the offgoing shift thought there might be a missed or undischarged' hole. If the duty existed at all to inform Adams of the conditions of the mine as left by the preceding shift, it was a duty devolving upon his felloAV servants, which Adams knew and well understood; and, if this duty was not complied with, it was the negligence of a fellow servant, and not of the defendant.
4. Plaintiff, in his brief and argument, presents a still further proposition to the court, and that is that it became the duty of the defendant to make reasonable rules and regulations for the protection of the miners, whereby they might be notified of hidden dangers from unexploded or missed shots in the breast of the tunnel.
The Supreme Court of Oregon had this question under consideration in the case of Johnson v. Portland Stone Co., 40 Oregon, 436, 67 Pac. 1013, and use the following language: “It is also claimed that the defendant was negligent in not promulgating rules by the observance of which the accident could have been avoided. There was nothing in the nature of the business in which the plaintiff was.engaged at the time of the injury which made it necessary for the defendant to make and publish rules. The mere failure to adopt rules is not proof of negligence unless it appears that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity for such precaution. It is not suggested in this case what particular rules could have been adopted that would have been likely to prevent the accident.” We agree with the doctrine thus announced. It was not shown what particular rules could have been adopted that would have been likely to prevent the accident. (See, also, Davis v. Trade Dollar Cons. M. Co., supra.)
But, again, it is clearly apparent that tlie method of driving the tunnel was only a detail of the work in which Adams was engaged, and it is well established that the master is never liable for any negligence in carrying out the details of the work if the place in which the work is conducted is in itself safe, and the dangerous condition is brought about only by the negligence of the men working there. (Mancuso v. Cataract Cons. Co., (Sup.) 34 N. Y. Supp. 273; Davis v. Trade Dollar Cons. M. Co., 117 Fed. 122, 54 C. C. A. 636; Johnson v. Portland Stone Co., 40 Oregon, 436, 67 Pac. 1013; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905.)
Rehearing denied September 28, 1904.
We have not considered the questions as to whether plaintiff assumed the risk of danger from unexploded blasts, or as to' whether Winston was a fellow servant or a vice principal, as neither is necessary to this decision.
The unfortunate accident disclosed by the record arouses the sympathy of all, but, “in view of all the circumstances, as they appear by the evidence, the calamity seems to have been a casualty from a cause unforeseen, and not within reasonable appre* hension” (Mancuso v. Cataract Cons. Co., supra), and “no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” (Patton v. Tex. Pac. Ry. Co., supra).
We therefore advise that the judgment appealed from be affirmed.
Per Ouriam. — Eor the reasons stated in the foregoing opinion, the judgment is affirmed.
Mr. Justice Milburn, not having heard the argument, takes no part in this decision.
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] |
MR. COMMISSIONER CALLAWAY
prepared the'following opinion for the court:
This action was brought by the plaintiff, the vendor, for the purpose of procuring the rescission of a sale of real estate on the ground of fraud practiced upon him by the defendants, the vendees. Tlie appeal lias been taken by the defendants from a judgment against them, and from an order denying their motion for a new trial.
1. The decisive question in the case is, does the complaint state a cause of action? Counsel for the respective parties do •not agree as to whether it does, under the rule announced in Butte Hardware Co. v. Knox, 28 Mont. 111, 72 Pac. 301.
Without entering into a detailed discussion of .the facts alleged, we may say that the complaint, in effect, states that certain representations, which plaintiff had a right to rely upon, were made to him by and ut the instance of the defendants; that the representations were untrue, and therefore false; that plaintiff relied upon such representations, and was induced thereby to enter into the contract, and as a result thereof he suffered loss. There is no direct allegation that plaintiff believed the representations to be true, but 'from the facts alleged in the pleading the conclusion that he did is inevitable. The words “rely” and “believe” are nearly synonymous. “Rely” is to depend on some one or something as worthy of confidence; to repose confidence; to trust; used with “on” or “upon.” “Believe” is to accept as true on the testimony-or authority of others; to have faith or confidence in the truth of any one or anything. (See Standard and Century Dictionaries.) And one is impelled to inquire, will a man rely upon a statement of fact which he knows to be untrue ? If he relies upon a statement of fact, does it not necessarily follow that he believes such statement? As a matter of law, a man may not rely upon that which he knows to be false. The complaint is inartistically drawn, and is not to be recommended as a form, but it contains the necessary substance to sustain the judgment.
2. This action was tried to a jury, which returned a verdict and sepical findings on February 6, 1902. On February 10, 1902, defendants served and filed their notice of intention to move for a new trial. The court adopted the findings and entered its decree on March 22, 1902. In an equity case, one in tending to move for a new trial must, within ten days after notice of the decision of the court, file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made. If the judge, as chancellor, sees fit to employ the services of a jury to enlighten his conscience, its findings are merely advisory, and it is immaterial when they are returned into court. The decision of the court is made when it adopts or rejects the findings of the jury, or makes its own findings, and directs its judgment. (Power v. Lenoir, 22 Mont. 169, 56 Pac. 106.) It was essential to the validity of their motion for a new trial that the defendants serve and file their notice of intention within ten days after notice of the decision of the court. This they did not do. Therefore the court was obliged to overrule the motion.'
Rehearing denied September 29, 1904.
It follows that the judgment and order should be affirmed.
Per Curiam. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.
Mr. Justice Milburn, not having heard the argument, takes no part in this decision.
|
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] |
MR. COMMISSIONER POORMAN
prepared the following opinion for the court:
In this action plaintiff seeks to obtain a perpetual injunction restraining the defendant from interfering with a ditch constructed by plaintiff for the purpose of draining marsh lands owned by plaintiff. The trial was by the court sitting without a jury, and judgment was entered in accordance with the prayer of tbe complaint. From this judgment, and from an order overruling defendant’s motion for a new trial, defendant appeals.
Much of the evidence appearing in the record is indefinite, for the reason that witnesses continually made use of the terms “here” or “there,” as though indicating on a map or plat; but the maps put in evidence contain no marks, nor does the evidence contain any statement, by which the particular locations meant by the witnesses in the use of these terms can be ascertained. It sufficiently appears, however, from the pleadings and the evidence, that the plaintiff is the owner of certain lands, a part of which is rendered marshy by water coining to the surface ; that this water drains into Dry Modesty creek, the channel of which extends in a northeasterly direction; that the ditch or drain constructed by plaintiff extends in a southeasterly direction, and has the effect of preventing the water flowing from this marshy land from entering the Dry Modesty channel, except to cross the same in plaintiff’s ditch. Many of the material allegations of the complaint are denied by the answer, and defendant sets up an affirmative defense to the effect that the waters from this land formed a running stream which flowed into Dry Modesty channel; that defendant had made location thereof, and was using the same in irrigating lands which it is admitted defendant owned. “At the close of the evidence, and after the same had been argued by counsel, the court stated that it would make findings of fact, and ten days * " * were granted by the court to defendant to submit in writing'-his findings, and which [order] was entered in the minutes of the court. That thereafter, * * * before any findings were made by the court, and before judgment was rendered thereon, defendant submitted certain findings in writing on the questions embraced in the pleadings in said action, to the court to find thereon; the said finding so presented to the court [being] as follows.” The findings-are then set out in full in the record. Some-of these findings submitted were on material issues. The court considered these findings submitted, acted thereon, and refused the same, and defendant excepted.
It is claimed by respondent that appellant did not “request findings in writing and have such request entered in the minutes of the court,” as required by Section 1114 of the Code of Civil Procedure. But it does appear “that the court stated that it would make findings of fact.”
The defendant had the right, in view of this statement, to presume that the court would make findings on all the material issues, and was thereby relieved from making any request for findings at all. Furthermore, it appears that the court gave the defendant ten days “to submit in writing his findings” — • not request for findings, but the findings themselves, which he desired the court to make. The court was not bound by either the form or the substance of the findings submitted, but the submission of written findings, under such circumstances, had the effect of requesting “findings in writing” on the material facts involved therein, and the findings submitted show the particular point or issue upon which the defendant required a finding. The exception taken therefore complies with Section 1115, Code of Civil Procedure.
In the record appears this entry:
“Findings and Conclusions of Law by the Court.
“Conclusions of Law.
“The court finds all the material allegations of plaintiff’s complaint are true.
“Findings.
“Let judgment be entered for the plaintiff according to the prayer of his complaint.”
This is dated and signed by the judge.
The first statement is not a conclusion of law, but a general finding of fact, as the same appears in the allegations of the complaint. The second statement is neither a finding of fact nor a conclusion of law, but an order that judgment be entered for the plaintiff. A general finding of facts in this form was held sufficient in County of Sutter v. McGriff, 130 Cal. 124, 62 Pac. 412, but the reasons for the decision are not stated in the opinion. A general finding was also field sufficient in Bitter v. Moaut Lumber, etc. Co., 10 Colo. App. 307, 51 Pac. 519, but in this latter case no answer bad been filed, and the facts were not in dispute. In Moore v. Clear Lake Waterworks, 68 Cal. 146, 8 Pac. 816, a finding to tbe effect that all the allegations of the complaint are true, and the allegations of the answer are untrue, was field sufficient.
This form of finding, however, could not be sustained in this case, for some of the affirmative allegations of the answer were admitted by the replication.
If the doctrine of implied findings in force in this state (Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447), can be invoked in aid of the general finding herein, such implied finding can go no further than that all the allegations of the answer inconsistent with the allegations of the complaint and not admitted in the reply are untrue. The general finding made by the court, by its terms, applies only to the allegations of the complaint. The affirmative matter set up in the answer is not included therein, and no finding can be implied as to an independent issue raised for the first time in the answer, where a specific finding was requested thereon. (Estill v. Irvine, 10 Mont. 509, 26 Pac. 1005.)
This brings this case directly in conflict with the decision in Krug v. Lux Brewery Co., 129 Cal. (322, 61 Pac. 1125, and ca,ses cited.
The doctrine of implied findings is not followed in California, but where the statute requires findings to be made the principle is the same. Section 1111, Oode of Oivil Procedure, requires findings to be'given in writing and filed with the clerk. Section 1112 of the same Oode requires the court to state (a) the facts found; (b) the conclusions of law; and (c) to order judgment entered thereon. The same Code also specifies the circumstances • under which the findings of fact may be waived: (1) By failing to appear at the trial; (2) by consent'in writing filed with the clerk; (3) by oral consent in open court, entered in the min utes (Section 1113) ; (4) by an agreed statement of facts (Section 1117) ; (5) in case of judgment by default (Section 1020). This case does not fall within any of these enumerations. The evident meaning of the statute is that a party litigant is entitled to a specific finding on each material issue, but that he cannot be heard to complain where no finding is made unless he has complied with the statute in requesting the same.
Very material issues were presented by these pleadings. The mere fact that this water has its source on laud now owned by plaintiff does not of itself necessarily give him the exclusive right thereto, so as to prevent others from acquiring rights therein under the laws of this state. (Section 1239, 5th Div. Comp. St. 1887; Section 1880, Civil Code; Session Laws 1901, p. 152 ; Murray v. Tingley, 20 Mont. 260, 50 Pac. 723.)
A discussion of the general principles involved may be found in the following cases, and the notes thereto: Willow Creek Irrigation Co. v. Michaelson, 21 Utah, 248, 60 Pac. 943, 51 L. R. A. 280, 81 Am. St. Rep. 687; Southern Pac. R. Co. v. Dufour, 95 Cal. 615, 30 Pac. 783, 19 L. R. A. 92; Gray v. McWilliams, 98 Cal. 167, 32 Pac. 976, 21 L. R. A. 593, 35 Am. St. Rep. 163; Sullivan v. Northern Spy M. Co., 11 Utah, 438, 40 Pac. 709, 30 L. R. A. 186; Cairo, etc. R. Co. v. Brevort, (C. C.) 25 L. R. A. 527, 62 Fed. 129; Jose Maria De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Ely v. Ferguson, 91 Cal. 187, 27 Pac. 587.
The maxim of jurisprudence announced in Section 4605 of the Civil Code, that “one must so use his own rights as not to infringe upon the rights of another,” is a principle of substantive law, peculiarly applicable to equity actions, and is not to be entirely overlooked in passing upon the relative rights of parties in suits of this character, provided the facts appearing, in the judgment of the court, make the principle applicable.
Por the failure of the court to make proper findings in this case, we think the judgment and order should be reversed.
Per Curiam.' — Por the reasons stated in the foregoing opin ion, the judgment and order are reversed, and the cause is remanded for a new trial.
Me. J usxice Milburn,, not having heard the argument, takes no part in this decision.
|
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] |
Per Curiam.
Upon motion of the respondent herein the appeal is hereby dismissed.
|
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MR. JUSTICE MILBURN
delivered tbe opinion of tbe court.
This is in the matter of the application for a writ of mandate to compel tbe secretary of state to receive and file a certain certificate of nomination of tbe petitioner for tbe office of attorney general of tbe state of Montana, said certificate having been made by tbe state central committee of tbe Republican party, and to certify to .the several county clerks in tbe state the name and description of tbe petitioner as the candidate of said party for the office mentioned, to tbe end that said nomination should be printed upon tbe official ballots of tbe several counties for tbe general election to be held on November 8, 1904. Tbe attorney general, Hon. J ames Donovan, appeared for tbe respondent.
Tbe facts in tbe case are not in dispute. Tbe petitioner was duly nominated at the Republican state convention for the office of attorney general. Through inadvertence, accident or mistake tbe name of Albert J. Galen, the petitioner herein, was omitted from, and no mention was made of tbe office of attorney general in, tbe certificate of nominations which was made, signed and filed in tbe office of tbe secretary of state by the chairman and secretary of the convention. It having been discovered that the name of Mr. Galen as such nominee and all mention of the office of attorney general were wanting in the certificate so filed on the 1st day of October, 1904, the state central committee of said party at a meeting held in the city of Butte in this state on the 11th day of October, at which more than a majority of the mem-bers thereof was present, passed and adopted a resolution to the effect that, as there was a vacancy as to the office of attorney general existing in the nominations as certified by the chairman and secretary of the Republican state convention, and as the said committee was desirous of filling such vacancy, therefore it was resolved that Albert J. Galen, whose residence was, etc., was regularly nominated to fill said vacancy, and the chairman and the secretary of the said committee were then and there authorized and directed to certify the Galen nomination so made to the secretary of state. A certificate was made in accordance with said direction, and properly signed, and presented to the secretary of state on the 12th day of October, 1904, at his office. It appears that the secretary of state, being in doubt as to his duty under the circumstances, then and there refused to accept or receive such certificate, and stated that he would refuse to certify to the county clerks the nomination thus made.
An alternative writ having been issued by this court upon proper petition, the attorney general, for the respondent, moved to quash and set aside the petition upon the grounds (1) that it showed that there was no vacancy existing in the nomination for attorney general on the said ticket; (2) that the certificate tendered was not the regular certificate of nomination by the convention, but was made by the state central committee to fill an alleged vacancy, instead of being certified by the proper officers of the convention. The position of the respondent was that the statute (Section 1316, Political Oode) requiring certificates of nomination to be filed with the secretary of state not more than sixty days and not less than thirty days before the day fixed by law for the election is directory, and not mandatory, and that, therefore, the time not having arrived for the secretary of state to certify the nominations to the county clerks, there was ample time for the officers of such convention to make a certificate of nomination of Mr. Galen, certify the same, and have it filed by the secretary of state; and that, such being the law and the facts, there was no authority in law for the making and filing of such a certificate as the one presented, to-wit, one made by the officers of the state central committee. The attorney general stated that, if his motion should be overruled, he would stand upon it. The motion to quash was overruled.
This court, in State ex rel. Scharnikow v. Hogan, 24 Mont. at page 402, 62 Pac. 683, expressly declared that certificates of original nominations made by party conventions must be filed within the period prescribed by Section 1316, but that there is no such requirement in respect of nominations made by virtue of the delegated power in a committee to fill vacancies.
It was stated on the part of the respondent on the hearing that the law did not contemplate merely one certificate embracing all the nominations, but that it was the duty of the officers of a convention to certify each nomination, and that this might be done by separate certificate for each nominee, and that the certificate on file therefore was not insufficient or inoperative under Section 1320, Political Code, and had not become such as to Mr. Galen, for the reason that there had not been any certificate of nomination made on his behalf. The statute ( Section 1311, Political Code) contemplates one certificate of nomination, and one only, as coming from the state convention, for it says: “The certificate of nomination, which must be in writing, must contain the name of each person nominated, his residence, * * * and it must be signed by the presiding officer and secretary of such convention. * * *”
As we have said, it is mandatory that this certificate must be made and filed before the thirty days before the election commence to run. The certificate filed certainly was, when received by the secretary of state, insufficient for the purpose of declaring the will of the Republican party in convention assembled as respects nominations, and for carrying into effect the intention of the legislature, which had provided for a certain form and style of one ballot to be presented to the people after being prepared in the manner fixed by the election laws.
Under Section 1320 of the Political Code, “if any person so nominated dies before the printing of the tickets, or decline the nomination as in this chapter provided, or if any certificate of nomination is or becomes insufficient or inoperative from any cause, the vacancy or vacancies thus occasioned may be filled in the manner required for the original nomination. If the original nomination was made by a party convention which had delegated to a committee the power to fill vacancies, such committee may, upon the occurring of such vacancies, proceed to fill the same. The chairman and secretary of such committee must thereupon make and file with the proper officer a certificate setting forth the cause of the vacancy, the name of the person nominated, the office for which we was nominated, the name of the person for whom the new nominee is to be substituted, the fact that the committee was authorized to fill vacancies, and such further information as is required to be given in an original certificate of nomination. The certificate so made must be executed in the manner prescribed for the original certificate of nomination, and has the same force and effect as an original certificate of nomination. * * *” Such a certificate to fill a vacancy was made by the state central committee, to which the necessary authority had been duly given by the convention, and was offered to the secretary of state.
“The statute is silent touching the time within which must be filed the certificate of nomination made by a committee to fill a vacancy occasioned by the insufficiency of the certificate of the original nomination. ” When a convention has made a nomination, and has authorized its committee to fill any vacancy that may occur, the filling of the vacancy by the committee upon the death or resignation of the candidate, or because the original certificate of nomination was or became insufficient or inoperative, may be made at any time before the day of election.” (State ex rel. Scharnikow v. Hogan, supra.) In our opinion, under the circumstances of this case, such a vacancy existed at the time the certificate above mentioned was offered for filing. (State of Nebraska ex rel. Fox v. Clark County Clerk, 56 Neb. 584, 77 N. W. 87; Bower v. Clemans, 61 Kan. 129, 58 Pac. 969; People ex rel. Powell v. Hartley, 170 Ill. 370, 48 N. E. 950; Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20.)
To adopt the language used by the Nebraska court in the case above, we may say that, while by a labored effort in that direction, or by some refined reasoning for the purpose, doubtless the vacancy which existed in the roll of Republican nominees when Albert J. Galen was nominated by the state central committee might be argued to be one which was not within the terms or meaning of the portion of the section of the election law which we have quoted, when the words are given their ordinary significance it appears still that it is just such a vacancy as was in contemplation of the lawmakers in the enactment of said section. The convention undoubtedly made the nomination, and its officers, who, both by the convention and the law, were required to certify the same, negligently or inattentively failed to make the certificate sufficient to show the complete results in the nominations made, and it thus was rendered inoperative as to the one in question, and there was thus created a vacancy in the nominations, clearly within the common-sense meaning of the words employed in the section of the election law to which we have referred.
It was ordered heretofore, to-wit, on the 17th day of October, 1904, that a peremptory writ of mandate issue, directing the secretary of state to receive the certificate of nomination made by said committee, and file the same, and to enter the name of Hr. Galen under the designation of the Republican party for the office of- attorney general as nominated by said convention.
Writ issued.
Hr. Justice Holloway concurs.
Hr. Chief Justice Brantly -took no part in this decision.
|
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] |
MB. COMMISSIONEB CALLAWAY
prepared the follow-' ing opinion for the court:
George Hliboka, having been found guilty of the crime of murder in the first degree, was sentenced to be hanged. From this judgment, and from an order denying his motion for a new trial, he has appealed to this court.
The only error which has been argued by his counsel in their brief is that the information under which he was convicted does not charge any greater crime than that of murder in the second degree. The information charges that the defendant did the murder willfully, unlawfully, feloniously, premeditatedly and of his malice aforethought'. It i$ argued that the information does not charge murder in the first degree, for the reason that the word “deliberately” is not included among the charging words.
There is a wide divergence of opinion between the adjudicated cases and text-writers upon the question which this contention presents. It can hardly be considered an open one in this jurisdiction, since the very able and exhaustive opinion rendered by the supreme court of the territory in Territory v. Stears, 2 Mont. 324, which has been followed or cited with approval in Territory v. McAndrews, 3 Mont. 158; Territory v. Godas, 8 Mont. 347, 21 Pac. 26; Territory v. Johnson, 9 Mont. 21, 22 Pac. 346; State v. Northrup, 13 Mont. 522, 35 Pac. 228, and State v. Metcalf, 17 Mont. 417, 43 Pac. 182. The Stears decision is in consonance with the great weight of authority in this country, and, we think, with sound reason. The basic principle underlying the doctrine announced in that case is that the legislature has the right to define the crime of murder, to divide it into degrees, and to prescribe the method of determining the degree in a particular case. That it has such power is undisputed by any one, and that it has exercised it is readily seen by an inspection of the following sections of the Penal Code, viz.:
'“Sec. 350. Murder is the unlawful killing of a human being, with malice aforethought.
“Sec. 351. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
“Sec. 352. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murder are of the second degree.
“Sec. 353. Every person guilty of murder in the first degree shall suffer death; and every person guilty of murder in the second degree, is punishable by imprisonment in the state prison not less than ten years.”
“Sec. 2145. "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”
There is but one crime of murder, and its division into degrees is simply for the purpose of adjusting the punishment “with reference to the presence or absence of circumstances of aggravation.” (Davis v. Utah, 151 U. S. 262, 14 Sup. Ct. 328, 38 L. Ed. 153.) The custom of punishing murderers in different modes, commensurate with the aggravation of their crimes, is not a new or even a modern one. It has obtained from the earliest times. Numerous examples are given by Blaekstone (Book 4, c. 14). If murder in the first degree and murder in the second degree were two different crimes, then they should be so charged, and there would be no necessity for the jury to find the degree of the crime at all. It would only be necessary for the jury to find that the defendant was guilty in manner and form as charged in the information.
In Territory v. Stears, supra, the court comments upon the fact that an indictment for murder at common law charged that the defendant “feloniously, willfully and of his malice aforethought” did the aGt that caused the killing. Under such an indictment the defendant could be convicted of murder in the first degree, and, before a conviction of murder in the first degree could be had at common law, it was necessary, precisely as it is under our statute, that the element of settled deliberation, premeditation, purpose and design enter into the crime. The court says that inasmuch as our statutory definition of murder is, in legal effect, the same as the common-law definition, and we have adopted the common-law description of the crime, an indictment for murder, good at common law, is good under our statute.
A majority of the courts of last resort in the United States hold that the words “deliberately” and “premeditatedly” are not essential to make a good indictment or information for murder in the first degree. Such is the rule in Alabama, California, Colorado, Connecticut, Dakota, Idaho, Louisiana, Maine, Mary land, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, Htah, Virginia, Washington and Wisconsin.
Some comparatively recent cases are State v. Cole, 132 N. C. 1069, 44 S. E. 391; State v. Johnson, 104 La. 417, 29 South. 24; Ruiz v. Territory, 10 N. Mex. 120, 61 Pac. 126; Perkins v. Territory, 10 Okl. 506, 63 Pac. 860. But if any additional authority is needed to sustain this proposition it will be found in the case of Davis v. Utah Territory, 151 U. S. 262, 14 Sup. Ct. 328, 38 L. Ed. 153, in which Mr. Justice Harlan, speaking for the court, goes over the subject thoroughly. The statutes construed áre practically the same as our own upon this subject. In that opinion we find the following: “Other assignments of error present the objection that the indictment is so framed that it will not support a verdict of guilty of murder in the first degree. This objection is based in part upon the theory that murder in the first degree and murder in the second degree are made distinct, separate offenses. But this is an erroneous interpretation of the statute. The crime defined is that of murder. The statute divides that crime into two classes in order that the punishment may be adjusted with reference to the presence or absence of circumstances of aggravation. And therefore, 'whenever a crime is distinguished into degrees,’ it is left to the jury, if they convict the defendant, 'to find the degree of the crime of which he is guilty.’ 2 Comp. Laws Utah, 1888, p. 715, Sec. 5076. If the defendant pleads guilty 'of a crime distinguis'hed or divided into degrees, the court must, before passing sentence, determine the degree.’ Id. p. 721, Sec. 5101.1 An indictment which clearly and distinctly alleges facts showing a murder by the unlawful killing of a human being with malice aforethought is good as an indictment for murder under the Utah statutes, although it may not indicate upon its face, in terms, the degree of that crime, and thereby the nature of the punishment that may be inflicted. Of course, if an indictment is so framed as to clearly show that the crime charged is not of the class desig nated as murder in the first degree, the jury conld not find a verdict of guilty of murder in tbat degree. But, as already suggested, the pleader need not indicate tbe degree, but may restrict tb,e averments to sucb facts as, in law, show a murder — that is to say, an unlawful killing, witb malice aforethought — leaving tbe ascertainment of tbe degree to tbe jury, or, in case of confession, to tbe cQurt. As tbe acts wbicb, under tbe Btah statute, constitute murder, whether of tbe highest or lowest degree, constituted murder at common law, it is clear tbat an indictment good at common law as an indictment for murder, in whatever mode or under whatever circumstances of atrocity tbe crime may have been committed, is sufficient for any degree of tbe crime of murder under a statute relating to murder as defined at common law, and establishing degrees of tbat crime in order that the punishment may be adapted to the special circumstances of each case. These views are abundantly sustained by authority.”
There is no merit in appellant’s contention. To bold otherwise would be to bold tbat under our statute, framed as it is to simplify tbe forms of pleading, and to regard tbe substance rather than tbe shadow, tbe pleader must inform against one accused of murder witb more particularity than was required at common law. As said in People v. King, 27 Cal. 507, 87 Am. Dec. 95 : “Our Criminal Code was designed to work tbe same change in pleading and practice in criminal actions wbicb is wrought by tbe Civil Code in civil actions. Both axe fruits of tbe same progressive spirit, wbicb in modern times has endeavored at least to do away witb tbe mere forms and techinalities of tbe common law, wbicb were productive of no good, and frequently brought tbe administration of justice into contempt by defeating its ends.”
The only complaint appellant makes against tbe information is tbat tbe word “deliberately” was omitted therefrom. Otherwise be concedes tbat it contains a statement of tbe facts constituting tbe offense, in ordinary and concise language, and in sucb a manner as to enable a person of common understanding to know wbat is intended; that it is certain as to tbe party charged, tbe offense charged, and tbe particular circumstances of tbe offense charged. (Penal Code, Secs. 1832, 1834.)
It follows that tbe judgment should be affirmed.
Per Curiam. — Eor tbe reasons given in tbe foregoing opinion, tbe judgment is affirmed.
Affirmed.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought by John McCormick against J. A. Johnson and J. C. McCarthy, partners doing’ business under the firm name of Johnson & McCarthy, and M. C. Harris.
Stripped of barren verbiage, the pleadings disclose the following : That the plaintiff and the defendant Harris were partners doing business in Butte under the firm name of Harris & McCormick, hereafter referred to as the “firm”; that between November 25, 1895, and Eebruary 1, 1896, this firm sold for the defendants Johnson & McCarthy, at their special instance and request, 23,477,820 pounds of coal, for which they were to receive a commission of ten cents per ton, amounting to $1,173.-90, no part of which had ever been paid. Plaintiff further alleges that his copartner, Harris, refused to join him in this action as plaintiff, and therefore he is made a defendant. It is further alleged that the defendants are colluding and conniving together to defraud the plaintiff out of his interest in the amount due the firm; that Harris is insolvent, and, if permitted to secure possession of plaintiff’s share, plaintiff will be unable to recover it. It is further alleged that the affairs of the copartnership of Harris & McCormick are fully wound up and settled, and there are no other assets of said firm except the account against Johnson & McCarthy, of which the plaintiff is entitled to one-half and Harris to the remainder. The prayer is for judgment against Johnson & McCarthy for $1,173.90 and for an injunction restraining the defendants from making any disposition of such sum pending the trial and final disposition of the controversy.
T'o this complaint the defendants Johnson and McCarthy filed a separate answer, admitting the existence of the copartnership of plaintiff and Harris, and also the partnership of John son & McCarthy; admitting also that the firm had sold the amount of coal mentioned in the complaint, and was to receive therefor as commission ten cents per ton, but further alleging that such coal was delivered under a special contract as follows: That prior to November 25, 1895, the Harris & McCormick Company (hereafter referred to as the “company”) was a corporation doing a commission business in Butte; that nearly all the capital stock of sqch company was owned by the plaintiff and defendant Harris; that such company was the agent of Johnson & McCarthy for selling coal in Butte, and on November 25, 1895, was indebted to Johnson & McCarthy in the sum of $1,215; that on this last-mentioned date such company made an assignment for the benefit of its creditors, and made Johnson & McCarthy second preferred creditors for the sum of $1,550; that immediately thereafter the partnership of Harris & McCormick was formed, and such firm made application to Johnson & McCarthy for the agency at Butte to sell coal for them; that thereupon an agreement was entered into, by the terms of which the firm was constituted the agent at Butte for Johnson & McCarthy in selling coal, for which such firm should receive as commission ten cents per ton; that such agency was created in consideration that the firm should assume and pay the indebtedness of the company to Johnson & McCarthy, and that all receipts from the sale of coal made by the firm should be turned- over to Johnson & McCarthy, and that every month thereafter credit on the former account of the company should be made of the commissions earned the previous month by the firm; that such - agreement was carried out until February 1, 1896, when the full amount of $1,173. 90 so earned by the firm had been applied to the liquidation of the former indebtedness of the company, and the balance of said indebtedness was thereupon paid by Harris and the agency of the firm for Johnson & McCarthy terminated.
The answer denies any collusion or connivance on the part of Johnson & McCarthy aud Harris, or any intent to defraud McCormick. The defendant Harris also filed a separate answer of like import as the answer of Johnson & McCarthy, and also denied that he had ever refused to join the plaintiff in bringing this action. The reply denies .the existence of the special contract mentioned in the answers.
The cause was tried to the court without a jury. The court found the issues for the defendants, and entered a judgment in their favor for costs, from which judgment and an order refusing him a new trial the plaintiff appealed.
The specifications relied upon are insufficiency of the evidence to support the findings, decision and order of the court, and errors in law occurring at the trial and excepted to by plaintiff. Numerous specifications are made of the insufficiency of the evidence to support the decision of the court, but they may be considered together.
The answer of the defendants Johnson & McCarthy amounts to a confession and avoidance. There is no question but what the full amount of $1,113.90 was earned by the firm and is due to it, xuiless the same has been paid; and there is no claim whah‘ ever that any part of it has been paid, except in the manner set forth in the answers. If the contract mentioned by the defendants was actually made and executed as alleged in the answers, then the firm was fully paid prior to the commencement of this action. If such contract was not made, then plaintiff should have prevailed, assuming that he has the right to maintain this action, which question is not considered, but reserved.
It is earnestly contended by appellant that the special contract alleged in the answers, if ever entered into at all, was invalid under the statute of frauds (Subdivision 2, Section 2185, Civil Code), which 'provides: “The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his,, agent: * (2) A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for in Section 3612 of this Code.” The contention made is that the contract as alleged is clearly a special promise on the part of the firm of Harris & McCormick to answer for the antecedent debt of tbe Harris & McCormick Company, a corporation, and, as tbe evidence shows that such contract was not in -writing, therefore there was no evidence to support any legal defense .which defendants made. However, Subdivision 2 of Section 2185, above, is subject to the qualifications imposed by Section 3612 of the same Code. This latter section, among other things, provides: “A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: * * * (3) Where the promise being for an antecedent obligation of another * * * is made upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person.”
While there is considerable conflict in the authorities respecting the proper construction to be given to statutes of this character, the decided weight of authority seems to uphold this rule, namely: When the original debt was antecedently contracted and subsists, the promise to pay it is original if founded upon a new consideration moving to the promisor, and beneficial to him, and such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor. (Brown on Statute of Frauds, Sec. 214a; White v. Rintoul, 108 N. Y. 222, 15 N. E. 318.)
In Emerson v. Slater, 22 How. (U. S.) 28, 16 L. Ed. 360, the same rule, in effect, is thus stated: “Cases arise which also fall within the statute, where the collateral agreement is subsequent to the execution of the debt, and was not the inducement to 'it, on the ground that the subsisting liability was the foundation of the promise on the part of the defendant, without any other direct and separate consideration moving between the parties. But whenever the main purpose and object of the promisor is, not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it xuay incidentally have the effect of extinguishing that liability.” To the same effect are the following authorities: 2 Current Law, 109; Pratt v. Fishwild, 121 Iowa, 642, 96 N. W. 1089; Lookout Mt. R. Co. v. Houston, 85 Tenn. 224, 2 S. W. 36, and cases cited; Gilmore v. Skookum Box Factory, 20 Wash. 703, 56 Pac. 934; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80; Simpson v. Carr, 25 Ky. Law Rep. 849, 76 S. W. 346; 1 Reed on Statute of Frauds, Sec. 73.
The question of novation is not involved. If the promisor is to receive some substantial benefit — a benefit which he did not enjoy before — for which his promise is exchanged, it is wholly immaterial whether the original debtor remains liable or not. (Calkins v. Chandler, 36 Mich. 320, 24 Am. Rep. 593, and the cases cited; Gilmore v. Skookum Box Factory, supra.) The rule has for its basis the new consideration, and the promise founded upon it creates a primary liability on the part of the promisor.
Applying these principles, then, to the facts of this case, we observe that, if the special contract pleaded in the answers was ever made at all, it had for its consideration the agency for Johnson & McCarthy at Eutte to handle their coal in that market for them, conferred upon the firm; an agency which the testimony shows was worth to such firm about $750 per month. In other words, if we accept the version of the contract as given by Johnson and Harris, it is apparent that the firm would not have been constituted the agent for Johnson & McCarthy unless that firm had assumed and agreed to pay the prior existing debt of the company; and their version further is that, as an inducement to Johnson & McCarthy to constitute the firm their agent, such firm agreed to assume and pay the debt of the company. We are of the opinion that, if the contract as pleaded in the answers was actually entered into, the promise to pay the prior debt of the company became an original obligation on the part of the firm, enforceable, though not in writing.
Was the contract pleaded in the answers actually entered into ? J. A. Johnson, one member of the firm of Johnson & McCarthy, testified, in effect, that he was in Butte soon after the assignment was made by the company; that he saw both Harris and McCormick; that they solicited the agency in handling the coal for Johnson & McCarthy at Butte; that he told them that his firm would not take .under the assignment, as he did not know whether there would be anything for them; that he further told them that the only condition upon which they could have the agency was that they became responsible for the debt of the company and allow Johnson & McCarthy to retain the commissions earned until the debt was paid; that they agreed to this, and carried out the agreement, and it was some months after-wards before there was any trouble about it. M. C. Harris, who was the copartner with plaintiff, testified to the same effect; and one Eitz Butler, who was bookkeeper for the company, assignee of that company, and also the bookkeeper for the firm, testified that McCormick told him that Mr. Johnson had said to him (McCormick) again and again that he wanted him to remember that the partnership was to assume the indebtedness of the corporation.
The plaintiff contradicted the evidence of these witnesses on behalf of the defendants, but offered no other evidence in disputation of their testimony except some letters which he had received from McCarthy, one of the defendants — one making inquiry as to what had been done under the assignment, and in the others agreeing to pay McCormick what he claimed of the commissions if McCormick would secure an order therefor from Harris. These letters are explained by McCarthy by saying that the only knowledge he had of the terms of the agreement was what he received from Johnson, his copartner; that he wrote the letters above referred to without consulting Johnson; that he .charged the partnership with the debt of the corporation, and every month thereafter credited the partnership with the commissions which they had earned the previous month; that they were willing to pay McCormick the amount which he claimed out of the commission if he secured an order from Harris for them to do so.
In the light of this testimony the court found the issues for the defendants. In other words, the court found that the special contract as pleaded had been entered into and had been fully carried out. We are of the opinion that the evidence is abundant to sustain the finding of the court in this regard.
Was there evidence sufficient to show that the company owed Johnson & McCarthy at least $1,173.90? The books of the company, kept by Butler, showed an indebtedness on October 31st of $1,458.74, and on November 30th, $1,147.76. The witness Harris testified that at the time the assignment was made the corporation owed Johnson & McCarthy about $1,200. McCarthy testified, in effect, that the commissions earned by the firm, which the pleadings admit amounted to $1,173.90, did not entirely liquidate the prior debt of the company; and that a small balance was left on February 1, 1896, which was subsequently paid by Harris.
The exact amount of such indebtedness was immaterial so long as it equaled or exceeded the amount of the commissions earned by the firm; and the general finding of the court in favor of the defendants amounted to a specific, finding that such indebtedness was at least $1,173.90, and in support of this finding the evidence appears ample.
It is contended that the evidence is insufficient to show that Johnson & McCarthy did not receive any benefit from the assignment of the company. With reference to this the witness Harris testified: “Johnson came over immediately after the assignment. * * * He said he would not have anything to do with the assignment, and, if we wanted the agency, we would have to let him keep the commissions until the old debt was paid.” The defendant Johnson testified that his firm received nothing whatever from the assignee of the company. Butler, the assignee, testified with reference to this matter as follows:
■“Q. Can you testify at this time whether or not the firm of Johnson & McCarthy ever received anything from you as as signee of th'e old company ? A. No, sir; they did not. I know they did not.” In the absence of any evidence to contradict these statements, it would seem that the court had abundance of evidence to satisfy it that nothing whatever was paid by the assignee to the defendants Johnson & McCarthy.
When the plaintiff was testifying in his own behalf he was asked this question: “Q. Did yon ever authorize Mr. Harris to make an agreement for your partnership to assume the indebtedness of the corporation?” An objection to this question was interposed on the ground that it was immaterial and incompetent, which objection was sustained, and the plaintiff excepted. The theory of the defendants was that the agreement by which the firm had assumed and agreed to pay the prior debt of the company, was made in Butte between Johnson, acting for the firm of Johnson & McCarthy on the one part, and Harris and McCormick. Both Johnson and Harris testified that McCormick was present at the time and participated in making the agreement. Butler testified that McCormick afterwards told him the terms of the contract under which they secured the agency for Johnson & McCarthy. These terms, as testified to by these witnesses, are the terms set forth in the answers. There is no claim on the part of the defendants that the contract was made with Harris álone, representing the partnership of Harris & McCormick, and therefore it was entirely immaterial, upon this theory of the case, whether McCormick had ever authorized Mr. Harris to enter into such an agreement or not. Either McCormick participated in making the agreement or the agreement was never made.
On cross-examination the witness McCormick was asked: “Q. At the time that you were in the coal business, right after the failure of the corporation, how did your account stand with Johnson & McCarthy?” An objection was interposed to this question, the objection was overruled, and error is assigned. In view of the fact that the witness answered, “I don’t know,” it is apparent that, if the court committed error in permitting the question to be answered, the error is without prejudice.
AYliile the defendant Johnson was on the witness stand he was asked by his counsel this question: “Q. AYhat, if anything, did your firm ever receive from the assignee of the corporation known as Harris & McCormick Company, which made its assignment to F. H. Butler, as assignee, on or about the 25th of November, 1895 ?” to which counsel for plaintiff objected on the ground that it was immaterial, irrelevant and incompetent under the pleadings of this case. The objection was overruled, and exception notecl. The witness answered, “Nothing.” The pleadings in this case show that Johnson & McCarthy had been made a second preferred creditor of the company. The plaintiff himself admits that this preference was made without the knowledge of Johnson and McCarthy, or either of them. Since the defendants Johnson and McCarthy are claiming in their answer that they had fully paid all commissions earned by the firm under the special contract claimed by them to have been made for the assumption and payment of the debt of the company, and that such contract had been carried out according to its terms as understood by them, they deemed it necessary to show that no part of that indebtedness had been liquidated otherwise. Certainly no injury could be done to the plaintiff by reason of this character of testimony; for, after all, without any reference to the assignment, the plaintiff was entitled to recover unless he had been fully paid, and the only pretense made that he had been paid was that the payment was made under the special contract pleaded in the answers.
AVhile the defendant Harris was on the witness stand testifying with reference to the agency which he and his partner had for handling coal for Johnson & McCarthy, he was asked, with reference to that business, this question: “Q. About how much would that business average?” To this an objection was interposed that it was immaterial and incompetent-. The objection was overruled, and an exception noted. The witness answered, “About $750 per month.” As heretofore said, the only defense made to the plaintiff’s cause of action was that the plaintiff and his copartner, Harris, had agreed to assume and pay the debt of the company. It was, therefore, necessary, in presenting this theory of the case for the defendants, to show that the contract which they entered into with the firm was not within the inhibition of the statute of frauds, but, on the contrary, that they parted with value, and that such firm acquired a valuable concession in being constituted the agent for Johnson & McCarthy for handling their coal in the city of Butte, and therefore the contract comes within the purview of Subdivision 3 of Section 3612, above, and that it was, therefore, a valid contract, and need not be in writing. Upon this theory the evidence was properly admitted.
We are of the opinion that the evidence is amply sufficient to justify the finding and decision of the court, and that the record discloses no prejudicial error. The judgment and order are affirmed.
Affirmed.
Me. Justice Milbuen concurs.
Me. Oiiiee Justice Brantly, not having heard the argument, takes no part in the foregoing decision.
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